tion. The mother of the deceased, who was not before the Tennessee court at the time of the decree, intervened, claiming that the domicil of the deceased was in Kentucky, and that by Kentucky law, she, as next of kin, should share with the widow. The widow claimed full faith and credit for the finding of the Tennessee court as to domicil. The Kentucky court refused full faith and credit on the grounds that the Tennessee court had no jurisdiction of the stock. The widow then prosecutes this writ of error. Held, that full faith and credit under the Constitution of the United States need not be extended to the finding of the Tennessee court. Baker v. Baker, Eccles & Co., U. S. Sup. Ct., Oct. Term, 1916, No. 115.

For a further discussion of this case, see Notes, p. 486.

CONTRACT TO

CONSIDERATION WHAT CONSTITUTES CONSIDERATION SUPPLY INDEFINITE BUSINESS REQUIREMENTS. - By the terms of a contract, the defendant, a sugar manufacturer, agreed to sell, and the plaintiff, a wholesale grocer, agreed to buy, all of the plaintiff's "August requirements" of sugar at a fixed price. Upon a breach by the defendant, the plaintiff brings suit. Held, that the contract is void for lack of mutuality. T. W. Jenkins & Co. v. Anaheim Sugar Co., 237 Fed. 278.

An agreement to supply a commodity merely as the buyer may desire is unenforceable for lack of consideration, since the buyer incurs no detriment. American, etc. Co. v. Kirk, 68 Fed. 791; Teipel v. Meyer, 106 Wis. 41, 81 N. W. 982. But if, as in the principal case, he agrees to buy from no one else, this limitation on his freedom of action furnishes sufficient consideration, although he may not be bound actually to buy from the seller. See 14 HARV. L. REV. 150. This is generally so in a contract to supply in such quantities as the buyer may desire for his business, or conversely, to buy as much of a product as the producer may desire to sell. National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427; Burgess, etc. Co. v. Broomfield, 180 Mass. 283, 62 N. E. 367. Some courts, however, have erroneously taken the view that the obligation supporting the promise to sell is a corresponding promise to buy. To reach this result it was necessary to presume that the business was to continue, and hence that the buyer would buy, even if the market price fell. But in the principal case this presumption cannot be made, since the commodity supplied is not incidental to an established business, but is the entire subject of the business. Therefore if prices fall, the buyer may escape buying by ceasing to trade in the commodity. On this basis the court holds the contract void for lack of mutuality. Now the requirement of mutuality can properly mean only that a bilateral contract, to be enforceable, must be binding on both parties. This is so, if consideration is furnished by each party. But the theory of the principal case further requires that the obligations must be correlative that if one party is bound to sell, the other must be bound to buy. This result is indefensible and adds an unwarranted technicality to the law of contracts. See Jordan v. Indianapolis Water Co., 159 Ind. 337, 345-46, 64 N. E. 680, 683. Another recent federal case makes a sound application of the principles here involved. Ramey Lumber Co. v. Schroeder Lumber Co., 237 Fed. 39.

CONSTITUTIONAL LAW VALIDITY OF LAWS REGULATING THE SALES OF GOODS IN BULK. The New York "Sales in Bulk Act" provides that the sale or transfer in bulk of any part or the whole of a stock of merchandise otherwise than in the ordinary course of trade shall be void as against the creditors of the seller or transferor unless certain formalities calculated to notify such creditors of the transaction are observed. LAWS, 1914, C. 507; PERSONAL PROPERTY LAW, § 44. The constitutionality of this statute was recently put in issue. Held, that the act is constitutional. Klein v. Maravelas, 56 N. Y. L. J. 1257 (Ct. of App.).

The history of this legislation is interesting. Similar acts are in force in many jurisdictions, but their validity has in several instances been subjected to vigorous attack. In fact an earlier New York statute which, except for being held to apply to merchants only, was identical to the present act, was declared unconstitutional on the two distinct grounds that it limited the liberty to contract and denied to merchants the equal protection of the laws. Wright v. Hart, 182 N. Y. 330, 75 N. E. 404. Other states, however, held such statutes unconstitutional solely on the ground that a special small class was benefited. McKinster v. Sager, 163 Ind. 671, 72 N. E. 854; Off & Co. v. Morehead, 235 Ill. 40, 85 N. E. 264. When such statutes therefore were amended to a form similar to that of the present New York statute, limiting the effect of the act to no special class, they were upheld in the very jurisdictions which formerly condemned them. Hirth, Krause Co. v. Cohen, 177 Ind. 1, 97 N. E. 1; Johnson v. Beloosky, 263 Ill. 363, 105 N. E. 287. And, except in Utah, such an act is uniformly held unobjectionable. Lemieux v. Young, 211 U. S. 489; Kidd, Dater & Price Co. v. Musselman Grocery Co., 217 U. S. 461; Squire Co. v. Tellier, 185 Mass. 18, 69 N. E. 312; McDaniels v. J. J. Conelly Shoe Co., 30 Wash. 549, 71 Pac. 37; Kett v. Masker, 86 N. J. L. 97, 90 Atl. 243. But see Block v. Schwartz, 27 Utah 387, 76 Pac. 22. The objection that this is class legislation seems accordingly to be effectively silenced, but the New York court had also decided that it unduly limited the right to contract. In order to uphold the validity of the present act, therefore, the court was forced to reverse itself, which it very frankly did.

CORPORATIONS

- RIGHT OF TRUSTEE IN BANKRUPTCY AGAINST TRANSFEREE OF STOCK ISSUED FOR OVERVALUED PROPERTY - "ACTUAL FRAUD" CONTRACT BY CORPORATION TO BUY BACK THE STOCK.-A., B. and C. were the incorporators of a company with a capital stock of $60,000, promoted by A., B., C. and D. Stock to the par value of $21,900 was issued as fully paid up to A. and B. in return for a secret process received from them. Neither A., B., C. nor D. believed the process to be worth $21,900 at the time; but all of them believed the corporation could pay dividends on the total capital stock. D. contracted to buy of A. and B. 300 shares, or half the capital stock, for $15,000, reserving an option to return the shares and receive the money back at any time. After paying in $13,600, he exercised the option and the corporation executed a mortgage to him to secure the indebtedness. The trustee in bankruptcy petitioned to have the mortgaged property applied to the payment of the general creditors who had become such after D. filed his mortgage. Held, that the property could not be applied to their benefit. Durant v. Brown, 236 Fed. 609. For a discussion of the case, see NOTES, p. 503.

DIVORCE

ALIMONY REFUSAL TO PAY ALIMONY PUNISHED AS CONTEMPT. - In divorce proceedings, the court ordered the husband to pay alimony pendente lite. On his failure to pay he was ordered to show cause why he should not be committed for contempt. He answered that he had no property and was unable to procure employment. After jury trial with verdict finding the defendant guilty of contempt, an order of commitment was made from which the defendant appeals. Held, that the commitment was proper. Fowler v. Fowler, 161 Pac. 227 (Okla.).

The Oklahoma constitution expressly forbids imprisonment for debt. OKLA. CONST., Art. 2, § 13. The obligation to pay alimony is an expression of a social duty, and that it is not a debt is shown by the fact that the amount may be varied in the discretion of the court granting it. Cox v. Cox, 3 Add. Ecc. 276. See Amos v. Amos, 4 N. J. Eq. 171; Moe v. Moe, 39 Wis. 308. As a result the great weight of authority is to the effect that commitment for failure to pay alimony is not imprisonment for debt. Andrew v. Andrew, 62 Vt. 495, 20 Atl.

817; Wightman v. Wightman, 45 Ill. 167; Chase v. Ingalls, 97 Mass. 524. Contra, Coughlin v. Ehlert, 39 Mo. 285; Steller v. Steller, 25 Mich. 159. Cf. Haines v. Haines, 35 Mich. 138. See Murray v. Murray, 84 Ala. 363, 4 So. 239; 11 HARV. L. REV. 552. Granting that imprisonment for failure to pay alimony is constitutional, some cases hold that a court of equity is without power to punish a defendant for failure to pay alimony. Ex parte Todd, 119 Cal. 57, 50 Pac. 1071; Messervy v. Messervy, 85 S. C. 189, 67 S. E. 130. However, the objection does not rest in lack of power, but rather in the practical difficulty of requiring a person to find work while imprisoning him during the period in which he is supposed to find it. Webb v. Webb, 140 Ala. 262, 37 So. 96. But the application of pressure in such a case will often energize a defendant without ambition, or bring a contumacious one to terms. So the balance of convenience would seem to favor commitment in this class of cases. Lester v. Lester, 63 Ga. 356; Lansing v. Lansing, 41 How. Prac. (N. Y.) 248.

DUTY OF CARE TRESPASSERS - MISFEASANCE AND NONFEASANCE MORAL DUTY. Plaintiff's intestate, while riding as a trespasser on the top of a freight car of a railroad company, was struck by a wire of the defendant company, which a storm had caused to sag so low as to endanger the safety of all persons on cars of that character and which the defendant had failed to repair. As a result he was thrown to the ground and killed. There was evidence tending to show that the defendant was a trespasser in carrying its wires over the railroad company's line. Held, that the plaintiff may recover. Ferrell v. Durham Traction Co., 90 S. E. 893 (N. C.).

As the deceased was a trespasser and the death was occasioned by a mere condition of the premises, it seems clear that no recovery could be had against the railroad company. See Jeremiah Smith, "Landowners' Liability to Children," II HARV. L. REV. 349. Now a landowner, or those claiming under him, may recover from one having a right to use the premises for nonfeasance as to a condition of the premises over which he has been given control. Hawkin v. Shearer, 56 L. J. (Q. B.) 284. Cf. Elliott v. Roberts & Co., 32 Times L. R. 478. See 30 HARV. L. REV. 186. So it would seem, on a doctrine akin to estoppel, that recovery might also be had from a trespasser under similar circumstances. Hence, in the principal case, if the deceased had been an employee of the railroad company, the defendant would be liable. But, as both the deceased and the defendant were trespassers upon the premises of another, its liability must be determined upon elementary principles. Where there is foreseeability of danger to others, one must modify his conduct accordingly. See Garland v. B. & M. R. Co., 76 N. H. 556, 86 Atl. 141. So if the death had been caused by a continuously active force, such as electricity, the defendant would be liable. See 28 HARV. L. REV. 818. But here there was no action by the defendant; its liability, if any, must be founded upon nonfeasance. But there was no legal relation between the defendant and the deceased from which a duty to act would arise. It would seem that the case is another instance of liability founded upon moral duty. See 30 HARV. L. REV. 289. But it is of especial significance, as hitherto the so-called "humanitarian doctrine" has been applied only to railroads and other inherently dangerous instrumentalities.

EVIDENCE - OPINION EVIDENCE NON-EXPERT OPINION AS TO AGE. In a prosecution for selling liquors to minors, non-expert witnesses were allowed to give their opinions, based upon the appearance of the vendees, that the vendees were under eighteen years of age. Held, that the evidence was improperly admitted. State v. Koettgen, 99 Atl. 400 (N. J.).

Whether appearance may be used to prove age, is a matter to be determined, like all questions of relevancy, by a balance of convenience; the probative value of the evidence must outweigh any tendency to prejudice or confuse the jury. Clearly the probative value of the appearance of a grown person is

high-the counterbalancing tendencies are slight. Accordingly, the courts usually allow the jury to consider the appearance of the person whose age is in question. Commonwealth v. Hollis, 170 Mass. 433, 49 N. E. 632; State v. Thomson, 155 Mo. 300, 55 S. W. 1013. See WIGMORE, EVIDENCE, § 222. Contra, Ihinger v. State, 53 Ind. 251. But the fact that appearance is clearly relevant is not decisive of the question whether opinion of non-experts based upon appearance is competent. The general rule for the admission of non-expert opinion is that the facts upon which it is based must be such that they cannot adequately be described to the jury, and they must be such as can be readily comprehended by an ordinary observer. See Commonwealth v. Sturtivant, 117 Mass. 122, 133; WIGMORE, EVIDENCE, § 1924. Such testimony is really a necessary summary of facts. Under this rule, non-experts have been allowed to give their opinions that a person was insane, or scared, or intoxicated, or even that a spot was made by blood. Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U. S. 612; State v. Ramsey, 82 Mo. 133; People v. Eastwood, 14 N. Y. 562; Greenfield v. People, 85 N. Y. 75. Opinion as to age, based on appearance, meets these conditions, and so most_courts have admitted it. State v. Bernstein, 99 Iowa 5, 68 N. W. 442; Jones v. State, 32 Tex. Cr. App. 108, 22 S. W. 149. Cf. Commonwealth v. O'Brien, 134 Mass. 200. See Elsner v. Supreme Lodge, 98 Mo. 640, 645, 11 S. W. 991, 992; WIGMORE, EVIDENCE, § 1974. Contra, Marshall v. State, 49 Ala. 21. Moreover, the application of the rules governing this sort of evidence should rest in the discretion of the trial court, and its decision ought not, ordinarily, to be reversed by a reviewing court. See THAYER, PRELIMINARY TREATISE ON EVIDENCE, 516.

EVIDENCE-TESTIMONY OF PARTIES IN SUIT FOR DIVORCE - MUTUAL CORROBORATION. In a suit for divorce on the ground of adultery, the petitioner testified to the fact and another witness testified to a full confession by the respondent. By the settled law of the state neither the uncorroborated confession of the defendant nor the uncorroborated testimony of the petitioner is sufficient to warrant a decree. Held, that a divorce cannot be granted on mutual corroboration. Garrett v. Garrett, 98 Atl. 848 (N. J.).

The law of the state in the principal case that a decree of divorce will not be granted upon the uncorroborated testimony of the petitioner is supported by numerous other jurisdictions. Reid v. Reid, 112 Cal. 274, 44 Pac. 564; Grover v. Grover, 63 N. J. Eq. 771, 50 Atl. 1051. See MINN. GEN. STAT. 1913, § 8465. See 3 WIGMORE, EVIDENCE, § 2046. Contra, Baker v. Baker, 195 Pa. St. 407, 46 Atl. 96. So likewise the rule that a decree will not ordinarily be granted upon the uncorroborated confession of the respondent has much support. Betts v. Betts, 1 Johns. Ch. (N. Y.) 197; Kloman v. Kloman, 62 N. J. Eq. 153, 49 Atl. 810. See 3 WIGMORE, EVIDENCE, § 2067. But it cannot be laid down as either logically or legally impossible that two pieces of evidence, either insufficient alone, should be mutually corroborative. See JOY, EVIDENCE OF ACCOMPLICES, 100 ff. Whether mutual corroboration is equivalent to corroboration aliunde must depend upon the reason why corroboration is required in each case. The requirement that the petitioner's testimony be corroborated is merely a survival, in large part, of the ancient rule of the Roman and Canon law that more than one witness is necessary to prove any fact. See 3 WIGMORE, EVIDENCE, §§ 2032, 2046. Therefore, since the respondent is a second witness, his confession is sufficiently corroborative. But the reason for refusing to grant a decree on the uncorroborated confession of the respondent is more than merely quantitative; it is the danger of collusion. It should not be within the power of the parties to sever the marriage relation at will. Holland v. Holland, 2 Mass. 154. Corroboration by the petitioner cannot, therefore, satisfy this rule. And, since both rules must be satisfied to warrant a decree, the decision in the principal case must follow. Such is the conclusion reached in other cases. Johnson v. John

son, 182 S. W. 897 (Ark.); Rie v. Rie, 34 Ark. 37; Hayes v. Hayes, 144 Cal. 625, 78 Pac. 19. But if the confession is made in open court the danger of collusion is lessened. So some courts have held that the petitioner's testimony is then sufficient corroboration. Smith v. Smith, 119 Cal. 183, 48 Pac. 730; Hague v. Hague, 95 Atl. 192 (N. J.).

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FEDERAL COURTS — JURISDICTION BASED ON DIVERSITY OF CITIZENSHIP INTERPLEADING A CLAIMANT WHO IS A CITIZEN OF THE SAME STATE AS THE PLAINTIFF. - The plaintiff bank, a New York corporation, was sued for a deposit, in a federal court, by a New Jersey corporation. The plaintiff, thereupon, brought a bill in the nature of an interpleader in the same court, praying that two citizens of New York and a New York corporation, claimants for the same fund, interplead in the suit. The original claimant contended that the bill, if allowed, would deprive the court of its jurisdiction, which was based on diversity of citizenship. Held, that the bill be granted. Sherman Nat. Bank v. Shubert Theatrical Co., 56 N. Y. L. J. 1087 (Dist. Ct., S. D., N. Y.).

Diversity of citizenship, sufficient to create federal jurisdiction, is only achieved when all parties plaintiff are citizens of different states from all parties defendant. Strawbridge v. Curtiss, 3 Cranch (U. S.) 267. Yet actions may be "controversies between citizens of different states," even though parties not from different states are, at various times, involved in the determination of the suit. Thus, a bill to set aside a fraudulent conveyance which would, if unhampered, defeat an original decree over which the federal court had jurisdiction has been sustained without regard to the citizenship of the parties. Hobbs Mfg. Co. v. Gooding, 164 Fed. 91. See 22 HARV. L. REV. 304. So any proceeding which may be truly considered ancillary to an original proceeding, in which the court has jurisdiction, has been held maintainable without reference to citizenship. Root v. Woolworth, 150 U. S. 401. See New Orleans v. Fisher, 180 U. S. 185, 196. It is true that from the point of view of the old chancery courts, any bill to enjoin a suit at law was an original bill. The federal courts, however, regard such as merely supplementary to the original suit. Freeman v. Howe, 24 How. (U. S.) 450, 460; Minnesota Co. v. St. Paul Co., 2 Wall. (U. S.) 609, 633. But an interpleader involves not alone an injunction

it involves the determination of the true owner of the claim. Can it be said that the determination of whether two strangers to the original suit are the owners of the claim, even though it involves the determination of whether the original claimant is the owner or not, is truly ancillary to the original proceeding? An early case has so held without discussion. Stone v. Bishop, 4 Cliff. (U. S.) 593. While the result may be desirable, the logic is not conclusive.

INJUNCTIONS - ACTS RESTRAINED - PUBLICATION OF PHOTOGRAPH WHEN EXCLUSIVE PHOTOGRAPHIC PRIVILEGES HAVE BEEN GRANTED TO ANOTHER. The promoters of a dog show purported to assign the sole photographic rights in connection with the show to the plaintiffs. The defendants who had knowledge of the concession took photographs of the show and published them in their magazine. The plaintiffs seek an injunction restraining the further publication of the photographs. Held, that the injunction do not issue. Sports & General Press Agency v. "Our Dogs" Publishing Co., [1916] 2 K. B. 880.

It is generally recognized that the literary or artistic producer has a property right in his creations. After publication such right may be protected only by copyright. Pierce-Bushnell Co. v. Werckmeister, 72 Fed. 54. But before publication, the common law will recognize and protect original literary and artistic property. So the right of a professor to restrain the publication of lectures orally delivered in his classroom, has been established. Caird v. Sime, L. R. 12 A. C. 326. An author has a similar property in his composition. Millar v. Taylor, 4 Burr. 2303, 2315; Palmer v. De Witt, 47 N. Y. 532; Macklin v.