There is a duty owed prospective as well as actual shippers to furnish correct information. This was probably true at common law. Cf. I WYMAN, PUBLIC SERVICE CORPORATIONS, §§ 367, 385. It is certainly true under the Interstate Commerce Act, §§ 6, 8, 9. If, however, the negligence results in the quotation of a rate lower than that published, it is impossible to save to the shipper his usual remedy, since it would enable him to get service at a discriminatory rate, thus militating against the integrity of the act. Texas & P. Ry. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628; Illinois Central R. Co. v. Henderson Elevator Co., 226 U. S. 441, 33 Sup. Ct. 176; Poor Grain Co. v. Chicago, etc. Ry. Co., 12 I. C. C. Rep. 418, 421. See 22 HARV. L. REV. 58; 27 HARV. L. REV. 83. However, no such countervailing considerations affect the case where too high a rate is quoted. To grant the remedy does not result in discrimination. On the contrary, if no liability were incurred a higher rate would be continually quoted to unfavored shippers who practically must rely on the carriers' statement. Therefore it is submitted that the shipper should be allowed to recover for damage suffered by the carrier's negligence, even though he cannot show a substantial tender of the goods. Where there has been no tender, a question might arise as to the jurisdiction of the state court, particularly if it be held that the remedy of a prospective shipper did not exist at common law but arises by virtue of the Interstate Commerce Act. That there is such jurisdiction see Robb v. Connolly, 111 U. S. 624, 637, 4 Sup. Ct. 544; Galveston, etc. R. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205. Contra, Van Patten v. Chicago, etc. R. Co., 74 Fed. 981. See 25 HARV. L. REV. 292.

CARRIERS

PASSENGERS STANDARD OF CARE IN SALE OF TICKETS. The plaintiff, an illiterate, showed the defendant's ticket agent a slip of paper, and asked for a ticket to the place named thereon. The agent gave him a ticket to a different place. Held, that the defendant in selling tickets is bound to use only ordinary care. Texas & N. O. R. Co. v. Wiggins, 156 S. W. 1131 (Tex. Ct. Civ. App.).

The highest degree of care is exacted of a common carrier of passengers as regards the construction and maintenance of his carrying equipment. New Jersey R. Co. v. Kennard, 21 Pa. St. 203. And the same standard of care is required in operating. Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291. This extraordinary care and diligence must also be used by the carrier in protecting passengers from injury by their fellow passengers. Flint v. Norwich & N. Y. Trans. Co., 34 Conn. 554. This is equally true as to the provision of safe means for alighting from the train on arrival at stations. See Mo. Pac. R. Co. v. Wortham, 73 Tex. 25, 10 S. W. 741. Before and after the actual carriage, the carrier should be held up to the duty of the highest degree of care to its passengers, with reference to the condition of its premises. Gulf, C. & S. F. Ry. Co. v. Butcher, 83 Tex. 309, 18 S. W. 583. Contra, Moreland v. Boston &Prov. R. Corp., 141 Mass. 31; Kelley v. Manhattan Ry. Co., 112 N. Y. 443. It has been laid down that the above test applies only to measures for the passenger's safety. But it has been applied as to the protection of his feelings as well. Goddard v. Grand Trunk R., 57 Me. 202. Also in the transmission of telegrams, where obviously safety is not a consideration, the public service corporation has been subjected to this extreme liability. Jones v. Western Union Tel. Co., 101 Tenn. 442, 47 S. W. 699. See Fowler v. Western Union Tel. Co., 80 Me. 381, 389. The cases show that this test is not limited to any particular branch of the carrier's activities. The carrier enjoys a monopoly, receives valuable privileges from the public and performs important and necessary services for it. On account of this relation, therefore, a greater liability has been imposed, from which, it is submitted, the carrier should not be exempt, in any special branch of his service, and that in selling tickets the highest degree of care should be exacted.

JUSTIFICATION FOR

CARRIERS PERSONAL INJURIES TO PASSENGERS ASSAULTS AND INSULTS BY SERVANTS. A passenger on a street car by abusive language provoked an assault from the defendant's motorman. Held, that the passenger cannot recover. Binder v. Georgia Ry. & Electric Co., 79 S. E. 216.

The peculiar Georgia rule that insult is justification for assault brings into issue the question whether a justification to one of its servants as an individual will excuse a breach of public duty on the part of the company. For discussion see Notes, p. 171.

EXTRATERRITORIAL

CONFLICT OF LAWS - JURISDICTION FOR DIVORCE VALIDITY OF DIVORCE GRANTED WITHOUT PERSONAL SERVICE. - A deserted wife stayed in South Dakota long enough to establish a separate domicile by the law of that state and obtained there a decree of divorce without personal service on the husband. The defendant, having subsequently married her, was sued by her former husband for criminal conversation. Held, the plaintiff had a cause of action. Berney v. Adriance, 142 N. Y. Supp. 748.

A decree of divorce operates in rem on the status of the petitioner. Atherton v. Atherton, 181 U. S. 155, 21 Sup. Ct. 544; Ditson v. Ditson, 4 R. I. 87. For this reason the great weight of authority is that personal jurisdiction over the defendant in a divorce action is not necessary. All that is necessary is sufficient notice of the suit. Felt v. Felt, 59 N. J. Eq. 606, 45 Atl. 105; Ditson v. Ditson, supra. New York, however, now with the backing of the United States Supreme Court, holds that it is not required by the "full faith and credit" clause of the Constitution to recognize as valid a decree of divorce rendered in another state than the domicile of matrimony, unless based on personal service. Winston v. Winston, 165 N. Y. 553, 59 N. E. 273; Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525. The South Dakota decree in the principal case being invalid from the point of view of New York, it therefore follows that the husband had existing marital rights infringed by the defendant. For a criticism of this theory see 19 HARV. L. REV. 586.

CONFLICT OF LAWS RECOGNITION OF FOREIGN JUDGMENTS JUDGMENT AGAINST CO-RESPONDENT BASED ON CONSTRUCTIVE SERVICE. The plaintiff brought divorce proceedings in India, the situs of the marriage, and under a statute joined the defendant as co-respondent. The defendant, an English subject, and domiciled in England, had left India before the suit was brought, the writ being served on him in England by registered post, according to the requirements of the Indian statute. The divorce was granted, and at the same time judgment for a large sum of money was entered against the defendant. The plaintiff brought suit on this judgment in England. Held, that he may recover. Phillips v. Batho, [1913] 3 K. B. 25.

At common law the courts of one jurisdiction will enforce judgments obtained in foreign jurisdictions when the judgment has imposed a valid obligation on the defendant. Except where there has been express or implied consent to the foreign jurisdiction, a judgment does not usually create a valid personal obligation in the absence of personal service within the jurisdiction even though the foreign laws as to constructive service are complied with. Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670; McEwan v. Zimmer, 38 Mich. 765. The obligation, however, is valid in such a case if the defendant was a subject of the foreign sovereign, Douglas v. Forrest, 4 Bing. 686; or probably if he was domiciled there. Henderson v. Staniford, 105 Mass. 504; Hunt v. Hunt, 72 N. Y. 217. Judgment in actions in rem may be binding as to the disposition of the res without personal service on the defendant when rendered by a court of a sovereign within whose territory the res lies. The Belgenland, 114 U. S. 355. Judgments for divorce rendered at the situs of the marriage

are usually held valid without personal service. Loker v. Gerald, 157 Mass. 42, 31 N. E. 709. Doerr v. Forsythe, 50 Ohio St. 726, 35 N. E. 1055. However, actions arising out of an interference with a res, resting on a personal duty to make reparation, are clearly actions in personam. Accordingly suits for trespass to realty are personal actions. Likewise suits for alimony, even when ancillary to divorce proceedings, are treated as purely personal actions. Rigney v. Rigney, 127 N. Y. 408, 28 N. E. 405. In the principal case it would seem that a suit in India against a co-respondent was of the same nature, and that the Indian court could not impose a binding obligation upon the defendant. It seems hard to support the decision on the ground that the defendant as an English subject was, because of his allegiance, under an obligation to obey the Indian laws as to service. Ordinarily the different parts of the British empire are looked upon as distinct foreign jurisdictions. Emmanuel v. Symon, [1908] I K. B. 302. And there seems no reason to say that the English sovereign has commanded his subjects to obey the laws of a separate part of the empire even if the English court does not afford relief against co-respondents except those who offend against English marriages.

CONTEMPT - ACTS AND CONDUCT CONSTITUTING CONTEMPT AVOIDING SUBPOENA. A witness, expecting to be subpoenaed, but before issue, concealed himself. Held, that he is guilty of contempt. Aaron v. State, 62 So. 419 (Miss.). A defendant attempted to persuade one wanted as a witness to avoid service of the subpoena. Held, that he is guilty of a misdemeanor. Rex v. Carroll, [1913] Vict. L. R. 380.

For a discussion of the important bearing on every-day practice of the principles involved in these cases, see NOTES, p. 165.

CONTRACTS - DEFENSES IMPOSSIBILITY - DESTRUCTION OF CONTEMPLATED MEANS OF PERFORMANCE. - The defendant contracted to sell onions to the plaintiff, "shipment per P. & O. steamer sailing from Japan about the 8th of September and coming direct to Sydney." No such steamer sailed due to the fault of neither party. The plaintiff, refusing to accept delivery by any other route, sued for failure to deliver according to the terms of the contract. Held, that the plaintiff may not recover. Cornish & Co. v. Kanematsu, 13 New South Wales, 83.

Ordinarily a party will not be excused from performance of a contract merely because it has become impossible. Paradine v. Jane, Aleyn 26; Rowe v. Peabody, 207 Mass. 226, 93 N. E. 604. But it is well settled that where performance of the contract depends upon the continued existence of the subject matter, in the absence of any warranty by either party that it shall continue to exist, the destruction of the subject matter without the fault of either party will excuse further performance. Taylor v. Caldwell, 3 B. & S. 826; Martin Emerich, etc. Co. v. Siegel, Cooper & Co., 237 Ill. 610, 86 N. E. 1104. The principle of this rule has been extended to cases in which the impossibility arises from the failure of the contemplated means of performance. Nickoll & Knight v. Ashton, Eldredge & Co., [1901] 2 K. B. 126; Clarksville Land Co. v. Harriman, 68 N. H. 374, 44 Atl. 527. In the principal case the court bases its decision upon the ground of impossibility of performance. But the case is closely analogous to cases of goods sold "to arrive," in which the words "to arrive" are construed as a condition precedent to the liability of either party under the contract, although the words in the principal case do not so clearly constitute a condition precedent as they do in the "to arrive" cases. Johnson v. MacDonald, 9 M. & W. 600; Rogers v. Woodruff, 23 Oh. St. 632. The two doctrines rest upon a similar principle, that neither party should be held liable for the failure of that which was, in the contemplation of the parties, the basis of the contract, and the continued existence of which he did not warrant. See 19 HARV. L. REV. 462.

CONTRACTS SUIT BY THIRD PERSONS NOT PARTIES TO CONTRACT -- PROMISE TO DISCHARGE OBLIGATION OF PROMISEE INDIAN LAW. In consideration of the conveyance of property, the defendant promised a debtor to discharge his obligation to a creditor. The creditor brought suit on this promise, joining the original obligor as defendant, and asked a decree against the promisor for the amount of the debt. Held, that the plaintiff is entitled to the relief sought. Dutt v. Mondol, 17 Calcutta Weekly Notes 1143 (India Civ. App. Jur., June, 1913).

Most American jurisdictions, following the famous case of Lawrence v. Fox (20 N. Y. 268), allow a creditor whose debtor has been given a promise to pay the debt a direct action at law against the promisor. Meyer v. Lowell, 44 Mo. 328; Wood v. Moriarty, 15 R. I. 518. Contra, Borden v. Boardman, 157 Mass. 410, 32 N. E. 469. A few courts appreciate more clearly the basis of the creditor's interest and give relief only by suit in equity to reach and apply the debtor's right against the promisor in satisfaction of the creditor's claim. Forbes v. Thorpe, 209 Mass. 570, 95 N. E. 955. See article by Prof. Williston, 15 HARV. L. REV. 775 et seq. In England, however, no one but the promisee may enforce the promise, at law or in equity. Price v. Easton, 4 B. & Ád. 433. Cf. Re Empress Engineering Co., 16 Ch. D. 125. The radical departure of the principal case from the settled English law does not arise from the Indian rule that consideration need not move from the promisee. See POLLOCK, INDIAN CONTRACT ACT, 3 ed., p. 19; 15 HARV. L. REV. 771. It is rather an instance of the general tendency of the modern law to give direct relief to third persons interested in the performance of a contract when such is the intent of the parties. The civil law generally permits recovery by a beneficiary. See 16 HARV. L. REV. 43. Even the English law has lost some of its rigidity by improperly extending its conception of a trust. Cf. Moore v. Darton, 4 DeG. & Sm. 517. The recognition in India of the substantial justice of the prevailing American view is, therefore, in harmony with the trend of legal development.

CRIMINAL LAW FORMER JEOPARDY - PERJURY - DIFFERENT FALSEHOODS IN SAME PROCEEDING UNDER SAME OATH. The defendant was indicted for perjury. He had previously been acquitted on a charge of perjury, based on another and different falsehood under the same oath in the same proceeding. Held, that the previous trial constitutes former jeopardy. Black v. State, 79 S. E. 173 (Ga. Ct. App.).

The precise point seems never to have arisen before. Perjury is committed when one who has taken oath to testify to the truth in a judicial proceeding knowingly makes a false statement material to an issue in that proceeding. See People v. Fox, 25 Mich. 492, 496; Herring v. State, 119 Ga. 709, 715, 46 S. E. 876, 879; STEPHEN, CRIM. LAW DIG., 4 ed., p. 95; 4 BL. COM. 137. It might be deduced from this that each false assertion constitutes a separate crime, and that the principal case is erroneously decided. But it is universally held that a single count of indictment containing several assignments of perjury under one oath is not bad. State v. Bishop, 1 D. Chipm. (Vt.) 120; State v. Bordeaux, 93 N. C. 560; Commonwealth v. Johns, 6 Gray (Mass.) 274. Also that a count of indictment containing charges of more than one crime is bad for duplicity. State v. Dennison, 60 Neb. 192, 82 N. W. 628; Commonwealth v. Symonds, 2 Mass. 162; State v. Temple, 38 Vt. 37. It follows therefore that various false statements under one oath constitute but one crime. See State v. Bishop, supra, p. 123. This supports the reasoning of the principal case to the effect that violation of the oath is the gist of the offense, and the several falsehoods only so many several means to a single criminal result. The defendant is therefore clearly within the constitutional guaranty.

FRAUDULENT CONVEYANCES WHAT CONSTITUTES FRAUD CREDITORS

- RIGHTS OF

PERSONAL RIGHTS AGAINST TRANSFEREE. A debtor trans

ferred stock to the defendant, one of his creditors, not to be applied on the debt but to assist in placing it beyond the reach of other creditors. Land was transferred to the debtor's wife, another defendant, who had no knowledge of the fraud. The stock, which was worth five times par when transferred, became worthless while held by the defendant. The land held by the wife was sold in foreclosure and she now holds none of the proceeds. The plaintiff, a judgment creditor, seeks to set the transfer aside and recover personal judgment as well. Held, that the defendant who participated in the fraud is liable for the value of the property transferred, but the bona fide donee is not. Koellhoffer v. Peterson, 143 N. Y. Supp. 353 (Sup. Ct.).

Where property is not taken for the debt, but to enable the debtor to defraud creditors, the existence of a bonâ fide obligation will not save the transaction. Smith v. Schwed, 9 Fed. 483. When one secures the legal title to property in violation of the rights of another, he becomes a constructive trustee for the person equitably entitled. See 3 POMEROY EQ. JUR., 3 ed., § 1053. Whether the true owner was deprived of his property by fraud, by theft, or by any other wrongful method is immaterial. National Mahaiwe Bank v. Barry, 125 Mass. 20; Humphreys v. Butler, 51 Ark. 351. So a grantee of a fraudulent conveyance has been called a constructive trustee for the grantor's creditors. Doherty v. Holliday, 137 Ind. 282, 288, 32 N. E. 315, 317. This is not strictly accurate, because a creditor cannot be said to have an equity in a debtor's property. But such a grantee commits a wrong in confederating with the debtor to place the property where the creditors cannot get at it to satisfy their claims. It is just that this conscious wrongdoer should not be allowed to profit by his wrong. The rules governing the reparation of this wrong are similar to those where there is a true constructive trust. If the property or its proceeds increase in value, the grantor's creditors reap the benefit. Gillett v. Bate, 86 N. Y. 87. If the fraudulent grantee sells the property, he is liable for its full value, no matter what he got. Post v. Stiger, 29 N. J. Eq. 554. Where some of the property has been stolen while in his possession, he must make good the loss. Hargreaves v. Tennis, 63 Neb. 356, 88 N. W. 486. In the principal case, therefore, the imposing of personal responsibility upon the fraudulent grantee seems just in view of the wrong done. No personal judgment, however, should be given against an innocent donee. Such a donee's conscience can only be affected when knowledge comes to him that in holding the property he is depriving another of some right. If the money has been spent or disposed of in such a way that no proceeds remain, he is not personally liable. Truesdell v. Bourke, 29 N. Y. App. 95, 51 N. Y. Supp. 409; Bonesteel v. Bonesteel, 30 Wis. 516. The result is the same where the property is returned to the grantor. Norris v. Jones, 93 Va. 176, 24 S. E. 911; Wheeler v. Kirtland, 23 N. J. Eq. 13. Since the wife was innocent and neither property nor proceeds remained, the decision denying personal liability seems also correct.

INFANTS- ADOPTION REQUISITES OF ABROGATION. With the consent of the natural parents, a child was adopted by another couple, according to statutory requirements. Later this adoption was abrogated according to statute, without the consent of the natural mother, who had meanwhile been divorced. One of the adoptive parents having died leaving a large estate, the child now seeks annulment of this abrogation, on the ground that the mother did not consent. Held, that the abrogation is valid. Matter of Ziegler, 50 N. Y. L. J. 99 (N. Y. Surr. Ct., Oct., 1913).

Adoption is governed by the requirements of the statute in force, not being known at common law. The statute referred to in the principal case provides that an adoption may be abrogated by a decree, on the consent of those parties whose consent would be necessary to an adoption. I CONSOL. LAWS, N. Y. 1079. The New York statute, in common with the statutes of Massachusetts,