grove v. Baily, 3 Atk. 213; Chase v. Redding, 79 Mass. 418. The donor's own check, however, stands upon a different footing. An ordinary bank account is a mere parol chose in action. Marine Bank v. Fulton Bank, 2 Wall. (U. S.) 252. Such a claim may be irrevocably assigned by deed under seal. Matson v. Abbey, 141 N. Y. 179, 36 N. E. 11. But a parol assignment without consideration is generally held revoked by the death of the donor. Cook v. Lum, 55 N. J. L. 373, 26 Atl. 803. With a few exceptions, among them Illinois, the authorities also agree that a check is not an assignment, but a mere authority to the bank to make payment. Hopkinson v. Foster, L. R. 19 Eq. 74; O'Connor v. Mechanics Bank, 124 N. Y. 324, 26 N. E. 816. Contra, Niblack v. Park National Bank, 169 Ill. 517, 48 N. E. 438. And the Uniform Negotiable Instruments Law, § 189, adopted in Illinois, expressly so provides. Where, however, a check covers the whole deposit, or is accompanied by an assignment agreement, it may operate as an assignment. In re Taylor's Estate, 154 Pa. 183, 25 Atl. 1061. Cf. Matter of Smither, 30 Hun (N. Y.) 632. See 27 HARV. L. REV. 177. This is still possible, even under the Negotiable Instruments Law. See Hove v. Stanhope State Bank, 138 Ia. 39, 115 N. W. 476. The principal case, accordingly, may conceivably be justified on the ground that the check operated as an assignment of the deposit by mercantile specialty, not revoked by the death of the donor. But if this line of reasoning fails at any point, recovery is impossible, for the donee's suit against the donor's personal representative on the instrument will be met by the plea of lack of consideration. Harris v. Clark, 3 N. Y. 93.

CONTRACTS

ILLEGAL CONTRACTS CONTRACTS AGAINST PUBLIC POLICY BY RAILROAD AS TO LOCATION OF DEPOTS. A contract provided that the plaintiff railroad should notify the defendant of the places selected by the railroad's chief engineer as locations for its depots, and that the defendant should then purchase and lay out town sites at such places, sell the lots, and divide the proceeds with the plaintiff. Held, that the contract is void as against public policy. Minnesota, D. & P. Ry. Co. v. Way, 148 N. W. 858 (S. D.).

Any contract made by a railroad which may interfere with the performance of its public obligations is void as against public policy. Pueblo & A. V. R. Co. v. Taylor, 6 Colo. 1. An agreement not to locate a depot at a particular place is clearly within this rule. Williamson v. Chicago, R. I. & P. R. Co., 53 Ia. 126, 4 N. W. 870. The validity of a contract to locate a depot at a particular place, without restrictions as to stations elsewhere, is, however, in dispute. Atlanta & W. P. R. Co. v. Camp, 130 Ga. 1, 60 S. E. 177; Cf. Pacific R. Co. v. Seely, 45 Mo. 212. See 2 ELLIOTT, RAILROADS, 2d § 928. But such agreements would also seem to be improper, in view of the danger that the efficiency of the railroad may be impaired by the unnecessary burdens consequent on the maintenance of such depots. Halladay v. Patterson, 5 Ore. 177. See Fuller v. Dame, 18 Pick. (Mass.) 472; Bestor v. Walthen, 60 Ill. 138. The contract in the principal case evidently aimed to avoid all objections by leaving the selection of the depots entirely to the railroad. It is true, of course, that this power belongs primarily to the railroad. Florida Central & P. R. Co. v. State, 31 Fla. 482, 13 So. 103. Its exercise, however, must not be influenced by any interest prejudicial to the public. Pacific R. Co. v. Seely, supra. In the principal case, the varying values of real estate in different localities might well appeal to the railroad in its choice of locations, and the decision properly refuses to allow it to be subjected to this temptation. See St. Joseph & Denver City R. Co. v. Ryan, 11 Kan. 602, 609.

INDICTMENT AND INFORMATION FINDING AND FILING INDICTMENT VALIDITY OF INDICTMENT BASED ON HEARSAY TESTIMONY

EFFECT OF

PRESENCE OF Stenographer IN GRAND JURY ROOM. - The defendants were indicted for conspiracy to conceal assets in bankruptcy. Among the witnesses heard by the grand jury was a detective employed by the Department of Justice much of whose testimony was hearsay. A stenographer, duly appointed and sworn, was present in the grand jury room. Held that either circumstance is ground for quashing the indictment. United States v. Rubin, 52 N. Y. L. J. 473 (U. S. Dist. Ct., Conn.).

This case adds new confusion to an already irreconcilable clash of opinion in the federal courts. One federal court has announced that under no circumstances will evidence before the grand jury be subject to judicial control. See In re Kittle, 180 Fed. 946, 947 (S. D., N. Y.). According to another view, the court will not ordinarily review the evidence before the grand jury, but may quash the indictment in extreme cases, as where it appears on the face of the indictment that the only witness heard was incompetent. See United States v. Terry, 39 Fed. 355, 356 (N. D., Cal.). A more prevalent view is that the court may inquire into the evidence, but will quash the indictment only if there was no legal evidence, or if the evidence mainly relied on was incompetent. United States v. Farrington, 5 Fed. 343 (N. D., N. Y.); United States v. Kilpatrick, 16 Fed. 765 (N. C.); United States v. Jones, 69 Fed. 973 (Nev.). See McGregor v. United States, 134 Fed. 187, 192 (C. C. A. 4th Circ.). The principal case goes still further, for it was not even shown that the testimony harmed the defendant. This conflict, however, seems likely to remain unsettled, for in the federal courts a refusal to quash an indictment will seldom be reviewed on appeal. McGregor v. United States, supra; Holt v. United States, 218 U. S. 245. As to the stenographer, the case is opposed to previous federal dicta and decisions, and overrides a long established practice in the federal courts. United States v. Simmons, 46 Fed. 65. See United States v. Heinze, 177 Fed. 770, 772. The court's view that the Act of 1906, c. 3935 (34 STAT. AT L. 816) excludes stenographers from the grand jury room seems untenable. Its purpose was to permit special appointees of the Attorney-General to conduct grand jury proceedings, not to exclude persons previously admitted. See United States v. Heinze, supra, 773. On both grounds of decision the principal case seems to take an unnecessarily narrow view, and as to the stenographer, at least, another federal court has since reached a different conclusion. United States v. Rockefeller, (U. S. Dist. Ct. S. D., N. Y., not yet officially reported).

INJUNCTIONS - ACTS RESTRAINED ELECTION OF DELEGATES TO ALLEGED UNAUTHORIZED CONSTITUTIONAL CONVENTION. —A special election had been held in New York to submit to the voters the question of calling a state constitutional convention. The result was certified to be in favor of holding the convention. The plaintiff, a taxpayer, seeks to enjoin the state election officials from proceeding with the election of delegates to this convention on the ground that the ballots were not properly counted at the election and that the statute in compliance with which it was held is unconstitutional. Held, that the injunction will not be granted. Schieffelin v. Komfort, 212 N. Y. 520.

For a discussion of this case, see this issue of the REVIEW, p. 309.

INSURANCE RE-INSURANCE MEASURE OF LIABILITY OF RE-INSURER WHEN INSURER BANKRUPT. — A guarantee society guaranteed the debentures of a trading company and re-insured part of the risk. The trading company failed, and the guarantee society was unable to meet the claims of the trading company's debenture holders. Held, that the reinsurer is liable for the full amount of the claims re-insured, rather than for the ratable sum which the insolvent guarantee society is able to pay.

In re Law Guarantee Trust and Accident Society, Ltd., [1914] W. N. 291 (Eng. C. A.).

For a discussion of the principles underlying the liability of a re-insurer in this and similar cases, see NOTES, p. 302.

LATION

-

REGU

INTERSTATE COMMERCE - CONTROL BY STATES RAILROAD REGULATIONS BY STATE COMMISSION AS TO DEMURRAGE. The Michigan Railroad Commission passed certain demurrage rules applicable to all traffic originating or terminating within the state. In respect to the time allowance for loading and unloading, these rules differed materially from those tentatively indorsed by the Interstate Commerce Commission. The plaintiff asks for an injunction restraining the enforcement of the state commission's rules. Held, that the injunction will be granted as to interstate shipments, and denied as to intrastate shipments. Michigan Central R. Co. v. Michigan Railroad Commission, 148 N. W. 800 (Mich.).

The court distinguishes the Shreveport Rate Cases on the ground that there the Interstate Commerce Commission had made a finding that the regulation as to intrastate commerce was an unreasonable interference with commerce between the states. This distinction seems valid. The federal power to regulate intrastate commerce arises solely as an incident to the power to control interstate commerce. Until the protection of the latter necessitates federal interference, the control of the states over the former should be absolute. See The Shreveport Rate Cases, 234 U. S. 342; for discussion, see 28 HARV. L. REV. 34, 113. For a criticism of a decision contrary to the principal case, see 27 HARV. L. REV. 388.

LANDLORD AND TENANT CONDITIONS AND COVENANTS IN LEASES BREACH OF CONDITION: WAIVER OF BREACH BY APPLICATION TO COMPEL LESSEE'S RECEIVER TO ELECT TO ADOPT OR RENOUNCE THE LEASE. — The defendants were appointed receivers of an insolvent lessee, and the plaintiff, the lessor, applied to the court to fix a time within which the receivers should either "adopt or renounce the lease." The receivers thereupon assumed the lease, and the plaintiff now asks for authority to dispossess them, under his right to reënter for default in rent, unless they pay back rent which accrued before the receivership. Held, that the petition be denied, on the ground that the plaintiff has waived the breach. Durand & Co. v. Howard & Co., 216 Fed. 585 (C. C. A., 2d Circ.).

A receiver in insolvency, like a trustee in bankruptcy, may adopt a lease owned by the debtor, at his election. See Carswell v. Farmers' Loan & Trust Co., 74 Fed. 88, 91. But he has no power of eminent domain, and must take subject to the landlord's right to declare a forfeiture for defaults by the tenant. Farmers' Loan & Trust Co. v. Northern Pacific R. Co., 58 Fed. 257, 265. In the principal case, therefore, in the absence of a waiver of the breach of condition by the landlord, the receiver was not entitled even in equity to keep possession without payment of all back rent. See Fleming v. Fleming Hotel Co., 69 N. J. Eq. 715, 61 Atl. 157. The majority of the court, however, felt that the landlord's application to the court to compel the receivers to make their election constituted such a waiver. It is true that in order to avoid forfeiture the courts will spell out a waiver from any act by the landlord recognizing the continued existence of the tenancy. Hasterlik v. Olson, 218 Ill. 411, 75 N. E. 1002; Brooks v. Rodgers, 99 Ala. 433, 12 So. 61. Thus the acceptance of rent accruing after breach, or the institution of legal proceedings based on the relation of landlord and tenant, will conclude the landlord. Conger v. Duryee, 90 N. Y. 594; Jackson v. Allen, 3 Cow. (N. Y.) 220; Moore v. Ullcoats Mining Co., [1908], 1 Ch. 575. Mention of the lease as existing in subsequent negotiations, or in a receipt for prior rent have also been held to

amount to a waiver. Ward v. Day, 4 B. & S. 337; Green's Case, Cro. Eliz. 3; Doe v. Miller, 2 C. & P. 348. To predicate the same consequences, however, on the use of the word "lease" in an application by the landlord, which itself recognizes nothing more than the receiver's right to the term subject to existing conditions, seems to be a considerable extension of the doctrine of waiver.

LANDLORD AND TENANT-REPAIR AND USE OF PREMISES EXTENT OF LANDLORD'S LIABILITY For Dangerous PREMISES REMAINING UNDER HIS CONTROL. The plaintiff, the wife of a tenant, received personal injuries while using a common stairway in the tenement which remained in the control of the landlord, the defendant. The jury found that the landlord was negligent in failing to provide a sufficient railing, but that this condition was known to the plaintiff and defendant alike. Held, that the plaintiff cannot recover. Lucy v. Bawden, [1914] 2 K. B. 318.

The plaintiff, a child of tender years, whose father was a tenant, was injured by falling through a gap in the railings attached to the area steps of a tenement house. The steps were used by all the tenants in common, and remained in the possession of the landlord. The jury found that the railings were defective at the time of letting, and dangerous to children, but that the defect was not a trap. Held, that the plaintiff cannot recover. Dobson v. Horsley, 137 L. T. J. 563 (Ct. App.).

In each case the plaintiff was not a party to the lease, and therefore took no advantage from the English statute imposing on the owners of tenement houses a duty to keep the premises in a reasonably safe condition. 9 Edw. VII., c. 44, §§ 14, 15; Middleton v. Hall, 108 L. T. R. 804; Ryall v. Kidwell, [1914] 3 K. B. 135. Apart from statute, however, the landlord owes a duty to the tenant, his family and guests, to take care to maintain the premises remaining under his control in reasonably safe repair. Miller v. Hancock, [1893] 2 Q. B. 177; Hargroves, Aronson & Co. v. Hartopp, [1905] 1 K. B. 472; cf. Ivay v. Hedges, 9 Q. B. D. 80. This obligation is similar to that owed by an occupier to invited persons. Indermaur v. Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311. See SALMOND, TORTS, 3 ed., p. 373. Authorities differ as to whether this duty requires the landlord only to give notice, or to keep the premises reasonably safe. The weight of English opinion undoubtedly regards mere warning against unexpected dangers as sufficient. See Cavalier v. Pope, [1906] A. C. 428, 432; Smith v. London & St. Katharine Docks, L. R. 3 C. P. 326, 333. Upon this reasoning, the two principal cases are clearly justified. But in certain analogous cases, mere notice of the danger is no defense. Smith v. Baker, [1891] A. C. 325. The American authorities, on the other hand, tend to impose a greater duty on the landlord, -to keep the premises in a reasonably safe condition, even though the defect is known. Lang v. Hill, 157, Mo. App. 685, 138 S. W. 698; Sawyer v. McGillicuddy, 81 Me. 318, 17 Atl. 124; Farley v. Byers, 106 Minn. 260, 118 N. W. 1023. In view of the relation of landlord and tenant, this more liberal doctrine seems preferable. Even in this country, however, the defense of voluntary assumption of risk is open, and some states also deny recovery to the tenant if the defect was known when the tenancy began, and no substantial change has since occurred. Quinn v. Perham, 151 Mass. 162, 23 N. E. 735; see Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357.

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LANDLORD AND TENANT- SURRENDER BY OPERATION OF LAW RELETTING OF PREMISES BY LANDLORD. A lease expressly authorized the lessor to reënter and terminate the lease for default in the payment of rent, but made no provision for reletting on account of the tenant. The lessees had sublet the premises at a loss, and allowed the rent to fall in arrear. The lessor then reëntered, relet to the subtenant at the rent reserved in the sublease, and

notified the lessees that he would hold them for the deficiency. He now sues for this amount. Held, that he is entitled to recover. Slayton v. Jordan, 42 Wash. L. Rep. 708 (Dist. Col.).

If the lessee did not, in fact, consent to abandon his term, there was undoubtedly a termination by forfeiture. In such a case, the tenant is not liable for future rent. Ex parte Houghton, 1 Lowell (U. S.) 554. On the assumption apparently made by the court, however, that there was an abandonment, the great majority of the cases would agree that the estate was not ended, on the ground that there is no surrender when notice is given to the tenant, as in the principal case, of the reletting on his account. Auer v. Penn, 99 Pa. 370; Oldewartel v. Wiesenfeld, 97 Md. 165, 54 Atl. 969; Brown v. Cairns, 107 Ia. 727, 77 N. W. 478. Contra, Gray v. Kaufman, etc. Co., 162 N. Y. 388, 56 N. E. 903. Cf. Haycock v. Johnson, 97 Minn. 289, 106 N. W. 304. Where it does not appear that notice was given, however, the authorities almost unanimously hold that there is a surrender. Amory v. Kanhoffsky, 117 Mass. 351; Welcome v. Hess, 90 Cal. 507, 27 Pac. 369; contra; Auer v. Hoffman, 132 Wis. 620, 112 N. W. 1090. On principle it is hard to see why mere notice should be decisive. The contractual theory of mitigation of damages has no application, for the landlord certainly is under no duty to care for the tenant's property in the leasehold, and, on strict theory, he has no right to intermeddle unless authorized. Accordingly, if the landlord relets without the express or implied assent of the tenant, he does an act entirely inconsistent with the continuance of the original lease. Gray v. Kaufman, etc. Co., supra. To make such conduct operate as a surrender, however, fails to afford adequate protection to the landlord, and since the reletting will usually be for the best interests of the tenant as well, strong practical considerations justify the attitude generally taken by the authorities. The principal case properly applies this doctrine in spite of the provision for forfeiture in the lease, for that was inserted for the landlord's benefit and could therefore be waived by him. Brown v. Cairns, 63 Kan. 584, 66 Pac. 639.

LANDLORD AND TENANT SURRENDER BY OPERATION OF LAW - VOID ASSIGNMENT OF THE ORIGINAL LEASE. A tenant under a term for years with his landlord's consent assigned his lease to "the Merrimack Building Company," which entered into possession and paid rent. There was no law under which the associates could have incorporated and under these circumstances the law of the state allowed a collateral attack. The landlord claimed a merger of the term through a surrender by operation of law. Held, that the term still remained in the original tenant, but that an equitable interest passed to the associates of the company, and decreed that title be quieted in the latter. Johnson v. Northern Trust Co., 106 N. E. 814 (Sup. Ct., Ill.).

For a discussion of the place of intent of the parties in the law of surrenders by operation of law, see NOTES, p. 313.

PARENT AND CHILD PARENTS' LIABILITY FOR TORT OF CHILD — KNOWLEDGE OF PREVIOUS COMMISSION OF SIMILAR DANGEROUS ACT. - The defendant's minor son kicked the plaintiff, another infant, and injured him. It was alleged that the same boy had kicked the plaintiff on a previous occasion, and there was evidence that his father had notice of this fact. At the trial the jury found for the plaintiff. Held, that the defendant was not liable whether he had notice or not. Corby v. Foster, 29 Ont. L. R. 83 (Sup. Ct. Ont., App. Div.).

Under the civil law a parent is liable for the tort of his minor child. MERRICK, CIVIL Code, Louisiana, § 2318; Marionneaux v. Brugier, 35 La. Ann. 13. But at common law the general rule is that the mere relation imposes no such liability upon the parent. Bassett v. Riley, 131 Mo. App. 676, 111 S. W.