the right of action is regarded as if it were that of the deceased, and recovery is allowed in spite of the beneficiary's contributory negligence. Warren v. Manchester St. Ry., 70 N. H. 352, 47 Atl. 735; Wymore v. Mahaska Co., 78 Ia. 396. The decision of the principal case settles the New York law, which had previously been in an uncertain state, in favor of recovery by the negligent beneficiary. On theory the recovery is essentially a compensation to the next of kin, the interposition of the administrator being a mere matter of procedure. This is further illustrated by the refusal to allow one not dependent on the deceased to recover under the federal statute. See 27 HARV. L. REV. 87. To allow this recovery when the beneficiary has been guilty of contributory negligence is to compensate him at the expense of his co-tortfeasor. See 21 HARV. L. REV. 636.

The de

FEDERAL COURTS — JURISDICTION AND POWERS IN GENERAL — JURISDICTION WHERE STATE COURT INTERPRETS FEDERAL STATUTES TOO BROADLY. -The plaintiff as administratrix sued the defendant company for damages occasioned by the death of her husband while in its service, relying upon the federal "Hours of Service Act" and "Employer's Liability Law.' fendant requested a verdict directed in its favor, which was refused. A judgment for the plaintiff was affirmed by the Supreme Court of Kentucky. 145 Ky. 427, 140 S. W. 672. The defendant now seeks a writ of error from the United States Supreme Court. Held, that the Supreme Court has jurisdiction. St. Louis, I. M. & S. R. Co. v. McWhirter, 33 Sup. Ct. 858.

When an action is begun in a federal court the case may be taken directly to the Supreme Court upon any constitutional question, irrespective of the lower court's decision. Act of March 3, 1891, c. 517, § 5; 26 STAT. At Large, 828. But a writ of error to a state court can only be had when a party claims and is denied some federal right. U. S. REV. STAT. § 709; U. S. COMP. STAT. 1901, 575; JUDICIAL CODE, § 237. The original purpose of allowing the Supreme Court this power of review was to prevent impairment of federal authority. See Commonwealth Bank of Ky. v. Griffith, 14 Peters (U. S.), 56, 58. Where the federal right is sustained, there is no necessity for review upon this score, and it was felt that to allow either party to appeal might put too much power in the hands of the federal courts. Gordon v. Caldcleugh, 3 Cranch (U. S.), 268; Missouri v. Andriano, 138 U. S. 496. See Hale v. Gaines, 22 Howard (U. S.), 144, 160. But fear of encroachment on state power by federal courts is now past. Indeed it has been felt desirable that legislation be enacted giving both parties the right to come before the Supreme Court on a federal question, in order to secure prompt and uniform construction of federal statutes. See PROCEEDINGS OF AMERICAN BAR ASSOCIATION, 1911, 462, 469. The serious objection to the proposal is the consequent addition to the work of an already over-burdened Supreme Court. See PROCEEDINGS OF AMERICAN BAR ASSOCIATION, supra, 482. To justify the decision in the principal case, the statute involved would have to be said to give or secure rights to both parties. Language, in previous cases, might lay a foundation for the construction that each party has a right to have his rights under the statute construed by the Supreme Court. Seaboard Air Line Ry. v. Duvall, 225 U. S. 477, 486, 32 Sup. Ct. 790; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 293, 28 Sup. Ct. 616. This seems hardly a permissible construction in the light of the above cases, especially as the defendant claimed the benefit of no exception or proviso.

HISTORY OF LAW PROCEDURE AND COurts Right of Court to Hear NULLITY SUIT IN CAMERA. - A proceeding to nullify a marriage on the ground of the husband's impotence was heard in camera by order of the judge. Later the wife to protect her reputation secured transcripts of the evidence given and

sent them to various persons.

For this she was found guilty of contempt. She now appeals to the House of Lords. Held, that the court had no jurisdiction to hear nullity suits in camera. Scott v. Scott, [1913] A. C. 417.

In early England the general public were required to pay a fee to gain admission to a court of law. 2 Bouvier's Law Dictionary (Rawle's edition), 548. But common-law courts are today generally open to the public. Nullity proceedings, however, were heard originally in the ecclesiastical courts, where witnesses were examined in private and their evidence taken by depositions. See SHELFORD, MARRIAGE AND DIVORCE, p. 522; CONSET, ECCLES PRACTICE, pt. 3, c. 4, § 3, (5). In 1857 such proceedings were transferred by statute to a new court of "Divorce and Matrimonial Causes." 20 & 21 VICT. c. 85, § 6. At first some doubt was expressed as to this court's right to conduct proceedings in private as the ecclesiastical courts had done. Barnett v. Barnett, 29 L. J. (P. & M.) 28 (1859); H (falsely called C) v. C, 1 Sw. & Tr. 605, 29 L. J. (P. & M.) 29 (1859). Later, however, it was decided that by § 22 of the act this new court inherited that power. See C v. C, L. R. 1 P. & M. 640 (1869); A v. A, L. R. 3 P. & M. 230 (1875); D v. D, [1903] P. 144. The present decision in turn overthrows this ruling. The House of Lords reasons that while § 22 declares the new court shall proceed as nearly as possible according to the rules of the former ecclesiastical courts, that § 46 providing that witnesses shall "be sworn and examined orally in open court" abolishes the practice of private examination and proceedings. In view of the express language of § 22, however, a better construction of § 46 would seem to be that while the cumbersome and expensive practice of taking depositions is to be changed to the more convenient viva voce testimony before a judge, the right of the judge to hear the testimony in private is not thereby abolished. But viewed merely as a common-law question it would seem that any court should have power at its discretion to hear in private testimony demoralizing to the public or embarrassing to a testifying witness. The House of Lords denies any such discretionary right, but lays down as a rule that private hearings should be given only in cases where the attainment of justice would otherwise be rendered doubtful. If this includes only cases of wardship, lunacy, and trade secrets, where private hearings have always been given, the rule laid down seems too narrow. Construed broadly, however, this language amounts practically to the granting of a discretionary power. Already this interpretation has been adopted by the English divorce court in a subsequent case where the public were ejected because a witness was visibly embarrassed by their presence. Moosbrugger v. Moosbrugger, 1913 T. L. R. 658. The House of Lords seems to fear that injustice may be caused by granting private hearings. But this objection is hardly valid where, as in the principal case, both parties desire such form of proceeding. In the United States divorce proceedings in many jurisdictions are regulated by statute. See Cross v. Cross, 55 Mich. 280; Hobart v. Hobart, 45 Ia. 501. But elsewhere it would seem that a judge should at least have the right in his discretion to hear such cases in private if the parties desire it.

HOMICIDE-Defenses

PROVOCATION

ILLICIT INTERCOURSE OF BETROTHED. The defendant killed his betrothed in a passion aroused by her confession of illicit intercourse during their engagement. Under the instructions the jury was not permitted to reduce the crime to manslaughter on this account. Held, that the charge, in substance, was correct. King v. Palmer, [1913] 2 K. B. 29.

The existence of malice aforethought in a homicide case is as properly a matter of fact for the jury as the doing of the act. Maher v. People, 10 Mich. 212; see I EAST P. C. 222. But the English judges early laid down a rule which forbade the jury to infer absence of malice aforethought from the pro

vocation offered by words of infamy or reproach. Mawgridge's Case, 17 Cobbett's St. Tr. 57. Words, which, in contradistinction to abusive epithets, are a mere vehicle to convey intelligence of the fact which actuates the crime, were not included in the original rule. So where the homicide of the husband is reduced by his having come upon his wife in the adulterous act, her confession of misconduct is recognized as having the same effect. See Reg. v. Rothwell, 12 Cox C. C. 145; Rex v. Jones, 72 J. P. 215. It is submitted that this should not be arbitrarily restricted to the case of a wife, but that where the killing immediately follows the discovery of a fiancée in such an act, or her confession of it, the jury should be permitted to find an absence of malice aforethought. The result which the court achieves can only be explained as a blind application of the rule of thumb that words in themselves are not sufficient provocation.

HUSBAND AND WIFE

TIES

RIGHTS AND LIABILITIES OF WIFE AS TO THIRD PAR

ALIENATION OF AFFECTION NECESSITY OF MALICE. - The plaintiff's husband was induced to leave her, as a result of advice given to him by the defendant. The court below refused to instruct the jury that the wife need not prove malice on the part of the defendant in order to recover. Held, that the refusal was correct. Geronimi v. Brunelle, 102 N. E. 67 (Mass.).

Most jurisdictions now extend to a wife the protection which has always been afforded a husband in the analogous case, holding that she has a property right in the consortium of her spouse, for the deprivation of which she may bring suit under the married women's enabling acts. Foot v. Card, 58 Conn. 1, 18 Atl. 1027; Warren v. Warren, 89 Mich. 123, 50 N. W. 842. The intervention of the husband's voluntary act does not break the causation, for a result intended by the defendant cannot be considered remote. Lumley v. Gye, 2 E. & B. 216; Angle v. Chicago, St. Paul, Minn., & Omaha Ry. Co., 151 U. S. 1. A prima facie case thus having been made against him an affirmative justification is required of the defendant. Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598; Walker v. Cronin, 107 Mass. 555. Such justification has been universally predicated upon the affection which binds a parent and child or upon the duties of a guardian to his ward. Huling v. Huling, 32 Ill. App. 519; Tucker v. Tucker, 74 Miss. 93, 19 So. 955. But in the principal case there is no relationship upon which such a justification can be based. A true analysis of cases of this character shows that malice or motive becomes important only where there is a justification to be negatived. Williams v. Williams, 20 Col. 51, 37 Pac. 614; Gernerd v. Gernerd, 185 Pa. 233. However, the principal case seems to stand for the novel proposition that good motive in itself justifies a prima facie wrong, which has been repudiated in the analogous case of procuring the breach of a contractual right. S. W. Miners' Federation v. Glamorgan Coal Co., L. R. (1905) A. C. 239. There seems to be no logical reason for distinguishing the two wrongs so as to make such a fundamental difference in the nature of the defenses allowed.

ILLEGAL CONTRACTS · CONTRACTS SUPPORTED BY AN ILLEGAL OR IMMORAL CONSIDERATION - CESSATION OF ILLICIT COHABITATION The plaintiff, having lived in illicit cohabitation with the defendant, agreed under seal to pay over to him certain money. This seems to have been in return for the defendant's promise to marry her. The defendant refused to marry her, and the plaintiff seeks to have the agreement to pay the money cancelled. Held, that cancellation will not be decreed, the contract being void. Pepperas v. Le Duc, 24 O. W. R. 563, 4 O. W. N. 1208.

Where future illicit cohabitation is the consideration for a contract, such is void as against public policy. Potter v. Gracie, 58 Ala. 303. But a promise made during illicit cohabitation is not necessarily tainted. McGuitty v. Wilhite,

247 Mo. 163, 152 S. W. 598. However, past illicit cohabitation is not sufficient consideration to support a promise. Binnington v. Wallis, 4 B. & Ald. 650. Nor will the moral obligation arising from such be good consideration. Eastwood v. Kenyon, 11 A. & E. 438. But if supported by other good consideration, or under seal, such a contract is enforceable. McGuitty v. Wilhite, supra; Brown v. Kinsey, 81 N. C. 245. A fortiori, a promise made in consideration of the cessation of past illicit cohabitation is not void for illegality, there being nothing in such a promise contrary to public policy, but rather otherwise. A contract made to end these relations by marriage, as a matter of policy, should be even more favorably regarded by the law. Hotchkins v. Hodge, 38 Barb. (N. Y.) 117. Clearly such a contract is valid from the point of view of consideration since both sides agree to do something they are not bound to do. It is sub mitted, therefore, that the court erred in concluding that the agreement was void.

INJUNCTION - ACTS RESTRAINED FORMER EMPLOYEE SOLICITING OLD CUSTOMERS FOR RIVAL. - The plaintiff laundry company employed the defendant as a collector and gave him lists of certain of its customers. The defendant agreed not to solicit these customers for any other concern. Later he left the plaintiff's employ and began to canvas the same customers for a rival laundry. Held, that the defendant will be enjoined from soliciting or receiving laundry from any of the above customers. Empire Steam Laundry v. Lozier, 130 Pac. 1180 (Cal.).

The court disregards the agent's contract with the plaintiff and grants the injunction on the broad ground of preventing a breach of fiduciary duty. In closely analogous cases injunctions were granted against disclosure of trade secrets, on that ground. Morison v. Moat, 9 Hare 241; Peabody v. Norfolk, 98 Mass. 452. True, some courts in these cases find an implied contract not to disclose, or argue that trade secrets are property rights which equity protects; but the first explanation is a mere fiction, and the "property right" is protected against violation by the fiduciary only. See 11 HARV. L. REV. 262. On the grounds of a fiduciary relationship, the disclosure of confidential communications by an attorney, or the use and publication of private codes by one other than the originator, have been enjoined. Evitt v. Price, 1 Sim. 483; Simmons Hardware Co. v. Waibel, 1 So. Dak. 488, 47 N. W. 814. Contra, Reuter's Telegram Co. v. Byron, 43 L. J. Ch. 661. Similarly the use of lists of customers may be enjoined. Robb v. Green, [1895] 2 Q. B. 1; Stevens v. Stiles, 29 R. I. 399, 71 Atl. 802. Cf. Lamb v. Evans, [1893] 1 Ch. D. 218. But the principal case not merely prohibits the use of the plaintiff's lists, but enjoins all soliciting of customers whose names appeared there. The question, however, is substantially the same whether the agent makes use of the lists themselves, or of knowledge which he has acquired from them. The test in either case should be whether the lists were given to the agent in a fiduciary capacity. This is a question to be determined from the facts of the particular case, and any breach of the duty so imposed should be restrained. Witkop & Holmes Co. v. Boyce, 64 Misc. (N. Y.) 374, 118 N. Y. Supp. 461; Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. 379.

The

INJUNCTIONS ACTS ENJOINED SUIT IN FOREIGN JURISDICTION. plaintiff had brought an action against the defendant in New York. While this was still pending, the plaintiff brought another action against the defendant on the same cause of action in North Carolina, the defendant's domicile. The defendant seeks an injunction restraining the plaintiff from further prosecution of the New York suit, on the ground that an attachment had been wrongfully sued out in New York and that there had been no personal service on the defendant in that state. Held, that the injunction will not be granted. Carpenter, Baggott & Co. v. Hanes, 77 S. E. 1101 (N. C.).

Formerly the view prevailed that a court of equity would never enjoin the

further prosecution of a suit commenced in a foreign jurisdiction. Love v. Baker, Freem. Ch. 125, 1 Ch. Cas. 67; Carroll v. The Farmers' & Mechanics' Bank, Har. (Mich.) 197; Mead v. Merritt, 2 Paige (N. Y.) 402. This view apparently obtains in Illinois to-day, on the ground that any other rule would be inconsistent with interstate harmony. Harris v. Pullman, 84 Ill. 20. This does not seem to follow, however, as the court of equity is not interfering with another state's proceedings; it is simply laying a personal prohibition upon the defendant. See 2 STORY, EQUITY JURISPRUDENCE, 13 ed., § 899. This is generally agreed to-day, and if necessary, courts will enjoin such suits. Lord Portarlington v. Soulby, 3 Mylne & Keen 104; Kempson v. Kempson, 58 N. J. Eq. 94. See 15 HARV. L. REV. 145. But in the absence of fraud or manifest injustice, the court will generally, in its discretion, refuse to interfere, as its decree may come into conflict with one rendered in the other state. Carson v. Dunham, 149 Mass. 52, 20 N. E. 312; The Bank of Bellows Falls v. The Rutland & Burlington R. Co., 28 Vt. 470. In the principal case there would seem to be no such fraud or inequity as would justify the granting of the decree, and the case could be disposed of on this ground. But the court refuses the injunction because the defendant is not domiciled in North Carolina, reasoning that the jurisdiction of equity to enjoin a foreign suit is based on the theory that a resident of a state owes obedience to that state and that the state has a right to control his personal relations with other citizens of the state. This doctrine of allegiance is important in Roman law, but has no place in our law. See HOLLAND, ELEMENTS OF JURISPRUDENCE, 9 ed., 401. What the court probably means to say is that since an injunction can act only in personam, it should not be issued unless the court has some means of enforcing its decree. If the defendant is not domiciled in the state and has no property in the state which can be sequestered, the court has no means of rendering its decree effective and therefore the decision in the principal case seems clearly

correct.

INSURANCE - RIGHTS OF APPLICANT - COMPANY LIABLE FOR AGENT'S FAILURE TO FORWARD APPLICATION. - The agent of the defendant insurance company negligently failed to forward to its home office an application for life insurance signed by the plaintiff's intestate a month before his death. But for this neglect the plaintiff's intestate would have been insured by the defendant. Held, that the plaintiff may recover in tort. Duffie v. Banker's Life Ass'n of Des Moines, 139 N. W. 1087 (Iowa).

The court reasons that because the defendant solicited business "under a franchise from the state," it was bound to give prompt attention to all applications. But the mere soliciting of an offer creates no duty to consider it. Harris v. Nickerson, L. R. 8 Q. B. 286. And the alleged franchise consists simply in the defendant's charter and license to write insurance. This license, like those issued to physicians, is a mere certificate of compliance with the police regulations governing the defendant's business. Commonwealth v. Vrooman, 164 Pa. 306, 320, 30 Atl. 217, 220. Certainly neither such a license nor a corporate charter imposes, without more, a duty to serve the public. Nor is the insurance business in itself a public calling. Any applicant may be rejected, even under statutes forbidding discriminatory rates. See Queen Insurance Co. v. State, 86 Tex. 250, 270, 24 S. W. 397, 404. Cf. CODE OF IOWA, 1907, § 1782. No public duty, therefore, bound the defendant to consider this application. On the other hand, any person who, at another's request, enters upon the transaction of business in his behalf, is liable, though unpaid, for negligence, even though it be non-feasance, in executing his commission. Robinson v. Threadgill, 13 Ired. (N. C.) 39; Johnston v. Graham, 14 U. C. C. P. 9. Coadon v. Exter-Hall Brokerage Agency, 142 N. Y. Supp. 548. In filling out an application the agent acts on behalf of the company. Union