EVIDENCE- DECLARATIONS in Course of DUTY - SINGLE CARD FROM A CARD-SYSTEM AS EVIDENCE. The plaintiff, a physician, in order to prove services rendered to the decedent, offered in evidence a card, showing the name of the decedent, her address, and the dates of all visits made to her. Other evidence showed that such a card was kept for each patient, and the series formed the only books of the plaintiff. Held, that the card was not receivable. Daniel's Estate, 77 Leg. Int. 134.

Contemporaneous entries made in the regular course of business are a wellrecognized exception to the rule that hearsay declarations are not admissible in evidence. Shove v. Wiley, 18 Pick. 558; The Mayor v. Second Avenue R. R. Co., 102 N. Y. 572. The habitual accuracy of such entries, the ease with which errors are discovered, and the fear of the consequences of such discovery to the entrant make such evidence sufficiently trustworthy. The fact that pages may be readily substituted in a loose-leaf book, lessening probability of discovery, makes entries in such books less trustworthy. Yet the courts receive them. Wyman, Partridge & Co. v. Henne, 127 Minn. 535, 149 N. W. 647; Armstrong Clothing Co. v. Boggs, 90 Neb. 499, 133 N. W. 1122. See WIGMORE, EVIDENCE, § 1548. Even separate slips, not bound in any way, such as workmen's time slips and cashiers' deposit slips, have been admitted. New York Motor Car Co. v. Greenfield, 145 N. Y. Supp. 33; Ricker v. Davis, 160 Iowa, 37, 139 N. W. 1110. A rule of evidence admitting a single slip of this sort would be open to the objection that the jury can not, in determining credibility, judge of its accuracy by comparison with other entries. This objection would not apply to the principal case, however, because the card contained various entries made at various times. It resembled a complete ledger page. See Presley Co. v. Illinois Central R. R. Co., 120 Minn. 295, 139 N. W. 609. Thus the principal case can not be supported.

GIFTS GIFTS CAUSA MORTIS EFFECT OF THE TRANSFER OF A SAVINGS BANK DEPOSIT TO JOINT ACCOUNT OF TRANSFEROR AND TRANSFEREE WHAT CONSTITUTES DELIVERY. Three days before death the intestate, who had a deposit in a savings bank, delivered to the plaintiff the savings account book together with a written order to the bank to pay to the joint account of herself and the transferee. The transfer was accordingly made, and, after the depositor's death, the account was transferred to the plaintiff, who notified relatives of the deceased that she was holding the money for them. Held, that the plaintiff is not entitled to the fund. Hayes v. Claessens, 179 N. Y. Supp. 153 (App. Div.).

A delivery of the specialty with an intention to transfer the entire property will operate to vest in the transferee the legal and equitable interest in the chose. Hill v. Stevenson, 63 Me. 364. See In re Meyer's Estate, 125 N. E. 219 (Ind.); Cogswell v. Newburyport Institution for Savings, 165 Mass. 524, 43 N. E. 296. And a delivery of the specialty with an intention to convey a joint interest should be effective to that extent. When there has been no delivery of the account book a transfer to a joint account of the depositor and another offers the difficulty that the transferor retains complete control over the subject of the gift. Denigan v. Hibernia Loan & Savings Society, 127 Cal. 137, 59 Pac. 389; Norway Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840. But even in such a case the gift has been enforced as a valid chose against the bank. Deal's Administrator v. The Savings Bank, 120 Va. 297, 91 S. E. 135. Or as a trust. Booth v. Oakland Bank, 122 Cal. 19, 54 Pac. 370. Or even as a gift. State Bank v. Johnson, 151 Mich. 538, 115 N. W. 464. The court has apparently confused the case with the situation where the donor retains complete control. It finds its solution in an absence of an intention on the part of the donor to make a gift. Although the donor may not have intended to vest the full beneficial ownership in the donee, there was an intention to give complete control

and the legal title. This should be sufficient after the bank has made the transfer.

HUSBAND AND WIFE - RIGHTS AND LIABILITIES OF WIFE AS TO THIRD PARTIES-WIFE NOT LIABLE FOR FUNDS FRAUDULENTLY OBTAINED BY HUSBAND AND SPENT BY HER IN GOOD FAITH.-The defendant's husband misappropriated funds belonging to his principal, the plaintiff's decedent. Part of the funds he deposited to the credit of defendant's bank account. The defendant in good faith used the money for household expenses and in cash advances to her husband. In an action for money had and received, held, that the complaint be dismissed. Seagle v. Barreto, 179 N. Y. Supp. 856 (App. Div.). A depositary of stolen money who returns it to the thief before notice of the theft is not liable. Hill v. Hays, 38 Conn. 532. Nor is an agent who disposes of a negotiable instrument apparently belonging to his principal, and turns the proceeds over to the latter. Spooner v. Holmes, 102 Mass. 503. Consequently, as to the funds that the defendant turned over to her husband and those which she disbursed generally at his behest she should be protected. But as to the money expended on necessaries for herself she not only acted as agent but was also the recipient. That being true and the expenditure made being beneficial, she could not plead change of position as a defense, if she were a donee. See WOODWARD, QUASI CONTRACTS, § 29. But she is more than a donee. Her services, it is true, are not consideration, the duty to render them arising from the marriage relation. Blaechinska v. Howard, etc. Home, 130 N. Y. 497, 29 N. E. 755. She has, however, a legal claim on her husband for necessaries. Goodale v. Lawrence, 88 N. Y. 513; Cunningham v. Cunningham, 75 Conn. 64, 52 Atl. 318. See 1909 N. Y. CONSOL. L., DOMESTIC RELATIONS LAW, § 51. And the release of that claim is value and gives her indefeasible title to the money. Miller v. Race, 1 Burr. 452; First Nat. Bank v. Gibert, 123 La. 846, 49 So. 593. On this reasoning the result of the case can be supported.

HUSBAND AND WIFE TENANCY BY ENTIRETIES WHETHER PERSONALTY MAY BE HELD BY THE ENTIRETY. - An agreed statement of facts set forth that funds which were the proceeds of real estate owned in entirety by a husband and his wife and of personal property also owned by them were used to purchase store property both real and personal. The administrator of the husband's estate excepted this property from his accounts as property of the wife, and the account was allowed by the Probate Court. Held, that there was no error. George v. Dutton's Estate, 108 Atl. 515 (Vt.).

In some jurisdictions married women's acts have abolished estates in entirety and have substituted therefor tenancy in common. Thornley v. Thornley, [1893] 2 Ch. 229. See Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824. In other states tenancy by the entireties still exists. Buttlar v. Rosenblath, 42 N. J. Eq. 651, 9 Atl. 695; Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337. If realty is held in entirety, estates in entirety may exist in personalty growing out of the realty. Vartie v. Underwood, 18 Barb. (N. Y.) 561. At common law, chattels could not be held in entirety. See I BISHOP, MARRIED WOMEN, § 211. Whether choses in action which do not come within the doctrine of conversion can be held in entirety has been disputed. The orthodox common-law view is against estates in entirety in any personalty. Blake v. Jones, Bail. Eq. (S. C.) 141; Re Albrecht, 136 N. Y. 91, 32 N. E. 632. See 21 HARV. L. REV. 446. It is strange that since the passage of the emancipation statutes courts should follow the analogy of realty when dealing with personalty. Since estates in entirety in personalty were not recognized at common law a fortiori, they should not be sanctioned under the statutes which aim to abolish antiquated doctrines. But the possibility of estates in entirety in personalty finds some support. Phelps v. Simon, 159 Mass. 415, 34 N. E. 657; Bramberry's Appeal, 156 Pa. St. 628, 27 Atl. 405.

ILLEGAL CONTRACTS CONTRACTS AGAINST PUBLIC POLICY - AGREEMENT TO PROCURE EVIDENCE. An attorney contracted with his client to litigate a claim for 40 per cent of the recovery. He then agreed that the client, who was a co-party in the action, should look up the evidence in the case for 20 per cent of the lawyer's fee. After the claim had been successfully litigated, the client sued for a breach of the agreement. Held, that the contract to procure evidence is illegal. Johnson v. Higgins, 108 Atl. 647 (Del.).

An agreement with a layman, stranger to the litigation, to compensate him for procuring evidence to be used in an action, is valid. Hare v. McGue, 178 Cal. 740, 174 Pac. 663. But such a contract is illegal, because against public policy, in that it tends to promote perjury and the fabrication of evidence, if the remuneration is contingent upon the character of the evidence to be produced. Such is the case when the evidence is to conform to an assumed state of fact. Neece v. Joseph, 95 Ark. 552, 129 S. W. 797. Or when the right to compensation is contingent upon the successful termination of the suit. Stanley v. Jones, 7 Bing. 369, 378; Quirk v. Muller, 14 Mont. 467, 36 Pac. 1077. Cf. Haley v. Hollenback, 53 Mont. 494, 165 Pac. 459. An agreement, however, with one not a stranger in interest to the litigation, to compensate him for securing evidence to sustain a defense, has been held unobjectionable, though remuneration was to be contingent upon success. Wellington v. Kelly, 84 N. Y. 543. Still more clearly, such an agreement would seem valid when made, as in the principal case, with a party to the litigation. His interest, as a party, in procuring a recovery, is stronger than his interest under the contract. The contingency, therefore, which might well induce a stranger in interest to manufacture evidence, will have no such effect upon him.

JUDGMENTS FOREIGN JUDGMENTS — JURISDICTION CONFERRED BY APPEARANCE AFTER JUDGMENT. - An Ontario court gave judgment against the defendant, a resident of Alberta. For this judgment there was no jurisdiction. Later the defendant appeared, moved to set aside the judgment, and offered to defend on the merits. The motion was granted and an order to vacate the judgment given, but on conditions with which the defendant could not comply. Later, on motion of the plaintiff, an order vacating the order to vacate the judgment was given. The plaintiff then sued in Alberta on the Ontario judgment. Held, that the plaintiff recover. Bank of Ottawa v. Esdale, 1 W. W. R. 283 (Alberta).

For a discussion of the principles involved in this case see Notes, p. 960.

LEGACIES AND DEVISES PAYMENT PRIORITY OF GENERAL LEGACY OVER RESIDUARY TO INCOME DURING FIRST YEAR. - A will contained general legacies of $97,000 and also provisions for a residuary legacy. The assets amounted to only $93,000. During the first year after the testator's death, the principal earned interest amounting to $4500. Held, that this should go to the general legacies. Bennett's Estate, 77 Leg. Intell. 152.

The residuary legacy bears all losses from insufficiency of assets and is not entitled to abatement of general legacies. In re Title Guarantee & Trust Co., 195 N. Y. 339, 88 N. E. 375. See 2 WOERNER ON ADMINISTRATION, 2 ed., 452. Similarly, lapsed and void legacies will go to make up deficiencies in the general legacies rather than to the residuum. Nickerson v. Bragg, 21 R. I. 296, 43 Atl. 539; Wetmore v. St. Luke's Hospital, 56 Hun, 313, 9 N. Y. Supp. 753. General legacies enjoy this priority even where the changes take place after the death of the testator. Pace v. Pace, 271 Ill. 114, 110 N. E. 878; Porter v. Howe, 173 Mass. 521, 54 N. E. 255; Willmott v. Jenkins, 1 Beav. 401. These results are part of the general rule, based upon the imputed intention of the testator, that a residuary legatee takes only after the paramount claims, including general legacies, have been met. Under this rule the principal case is clearly right, for the income earned must be considered a part of the estate.

LIMITATION OF ACTION

ACCRUAL OF ACTION EFFECT OF APPEAL ON RUNNING OF STATUTE OF LIMITATIONS. - A suit was brought for money paid upon an existing consideration which later failed through judicial action setting the transaction aside. The statute of limitations required suit for such money to be brought within three years from the date of the failure of the consideration (1877 INDIAN LIMITATION ACT, Art. 97). This action was brought within three years of the dismissal of an appeal from the decree setting aside the original transaction, but more than three years from the decree of the lower court. Held, that the action is barred. Boid v. Chowdhury, 26 Madras L. T. R. 131 (Privy Council).

Where an appeal has the effect of suspending the judgment from which appeal is taken, the running of the statute of limitations on a cause of action arising out of the judgment should likewise be suspended. Irvine v. Bankard, 181 Fed. 206; Bowen v. Lovewell, 119 Ark. 64, 177 S. W. 929; Donovan v. Dickson, 37 No. Dak. 404, 164 N. W. 27. If a stay or supersedeas bond or other security named in the statute be given, an appeal will suspend the original judgment. Hubbard v. Bank of Los Angeles, 120 Cal. 632, 52 Pac. 1070; Coombs v. Barker, 33 Mont. 74, 81 Pac. 737. And even though no security is given, this is true under some statutes. Sunter v. Sunter, 204 Mass. 448, 90 N. E. 561; Merrifield v. Piano Co., 238 Ill. 526, 87 N. E. 379. But in general, if no security be given, a judgment is not affected by an appeal. In re Nat'l Metal Co., 155 Fed. 690; Ex parte Meyer, 209 N. Y. 59, 102 N. E. 606. And in the principal case, the court found this to be the case under the Indian law. The cause of action accrued to the plaintiff at the time of the original decree. Since that decree is enforceable notwithstanding the appeal, there is no reason why the statute of limitations should be suspended during the appeal. Delay v. Yost, 59 Kan. 496, 53 Pac. 482; Bank of Stockham v. Weins, 12 Okla. 502, 71 Pac. 1073; Howard Ins. Co. v. Silverberg, 94 Fed. 921.

PROXIMATE CAUSE MUNICIPAL CORPORATIONS NOTICE OF ONE DEFECT IN SIDEWALK PUTS CITY ON NOTICE OF ANOTHER DEFECT. - An inspector of the appellant city noticed a small hole chipped in the end of a plank in a board walk, and ordered a new plank inserted. The plank, though apparently sound except for the hole, was rotten in the middle; and three days after the inspector's order the respondent was hurt by stumbling through it. The jury found the city negligent in delaying to insert the new plank. Held, that judgment for the respondent be affirmed. City of Winnipeg v. Einarson, 50 D. L. R. 440 (Manitoba).

The hole was a defect which the city was under a duty to repair. Upham v. City of Boston, 187 Mass. 220, 72 N. E. 946. Failure to repair the hole after notice was negligence in the performance of that duty. And it may be assumed from the inspector's order that the reasonable way to repair it was by inserting a new plank. It follows that if the city had done its duty in repairing the hole it would have discovered the defect in the center of the plank. Under these circumstances the city is chargeable with notice of the latent defect in the center, and hence not to repair it constituted negligence. Dallas v. McAllister, 39 S. W. (Tex.) 173. This negligence was a proximate cause of the injury; for the only intervening cause between it and the injury was the act of the plaintiff in stepping on the plank, and that act was surely forseeable. In other words, the city by its negligence took the risk that some one would step on the plank, and the city must be liable for the direct result. See Joseph H. Beale, "The Proximate Consequences of an Act," 33 HARV. L. REV. 633, 650.

REMOVAL OF CAUSES SEPARABLE CONTROVERSY - FRAUDULENT JOINDER AS GROUND For Removal FROM STATE TO FEDERAL COURTS. In an action brought in the state court against a non-resident corporation and its resident

employee the complaint alleged that the plaintiff had been injured by dynamite caps owned by the corporation and negligently exposed by the employee who was storekeeper. The non-resident defendant obtained a removal to the federal court on the ground of fraudulent joinder. The plaintiff moved to remand, supporting his motion with affidavits of his good faith but without a statement of the grounds for his belief. Held, that the motion be denied. Zigich v. Tuolumne Copper Mining Co., 260 Fed. 1014 (Dist. Ct. Mont.).

The plaintiff alleged that while in the employ of the non-resident defendant corporation he was ordered by the foreman, the resident defendant, to go up a telegraph pole, where he was injured by contact with a high-power wire because of the failure of the corporation to provide him a safe place to work and the failure of the foreman to warn him. Because of diverse citizenship the corporation sought a removal on the grounds that the controversies were separable, and that the joinder was fraudulent. Held, that the removal be denied. Postal Telegraph-Cable Co. v. Puckett, 101 S. E. 397 (Ga.). For a discussion of these cases, see NOTES, p. 970, supra.

RESTRICTION AND RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY RESTRICTIONS IN PRICE ON RESALE. A corporation engaged in the manufacture of accessories for automobile tires under letters patent sold its product to jobbers under contracts establishing the resale price of these articles, and refused to sell to any jobber who would not enter into such agreements and adhere to the uniform resale prices fixed. Upon these facts, the corporation was indicted for engaging in a combination rendered criminal by Section 1 of the Sherman Anti-Trust Law. The District Court for the Northern District of Ohio sustained a demurrer to the indictment. A writ of error was brought under the Criminal Appeals Act (34 STAT. AT L. 1246). Held, that the judgment be reversed. United States v. A. Schrader's Son, Inc., U. S. Sup. Ct., October term, 1919, No. 567.

For a discussion of this case, see NOTES, p. 966, supra.

RESTRAINT OF TRADE SHERMAN ANTI-TRUST LAW THE STEEL CORPORATION Case. · The United States brought suit under the Sherman AntiTrust Act against the United States Steel Corporation, asking for dissolution of that corporation and certain of its subsidiaries on the ground that they constituted a monopoly in restraint of trade. Held, that the bill be dismissed. United States v. United States Steel Corporation, U. S. Sup. Ct., October term, 1919, No. 6.

For a discussion of this case, see NOTES, page 964, supra.

CHARITABLE GIFTS

RULE AGAINST PERPETUITIES REMOTENESS WHERE THERE IS NO PRECEDING GIFT. Personalty was bequeathed "to the first . . . Orphans' Home .. built in X," with the provision that "should one of the Homes not be founded there at the time of my decease," the executors should invest the funds "until such time as one of such institutions shall be founded." The executors brought a bill for the construction of the will, that the validity of the gift might be determined. Held, that the gift was void. Re Schjaastad Estate, 50 D. L. R. 445 (Sask.).

A gift over to a charity from an individual, on a contingency too remote under the rule against perpetuities, is void. In re Johnson's Trusts, L. R. 2 Eq. 716; Smith v. Townsend, 32 Pa. St. 434. But if the first taker is also a charity, the gift is held valid. Christ's Hospital v. Grainger, 16 Sim. 83; MacKenzie v. Trustees, 67 N. J. Eq. 652, 669, 61 Atl. 1027, 1034. See 8 HARV. L. REV. 211. This doctrine might be applied with equal logic where there is no preceding gift. Yet it is here well settled that the charity may not take if the contingency upon which it is to vest is too remote. In re Stratheden, [1894]