EDITORIAL DEPARTMENT

"Debt and accountability were therefore pri mary common law obligations enforceable by the beneficiary, not because he was a 'privy to the contract, or a ' promisee ' or a ' cestui que trust,' or had furnished that 'mystery' of the eighteenth and nineteenth centuries — ' the consideration.' We err in attempting to ana lyze into constituent elements a substantive right which is itself primary and elemental. The beneficiary recovered because the judicial instinct recognized that he ought to recover, and the courts held that by common law he had a. substantive right. This common law right •was the expression of a public sense of justice, and a firmer foundation for a positive rule of law need not be sought." CORPORATIONS (Federal Regulation. Watered Stock) A NOVEL view of the problem of "Regula tion of Corporations by Federal Law," is pre sented by Robert L. Cutting in the February Albany Law Journal (V. Ixvii, p. 39). He starts with the premise that over-capitaliza tion is the great trust evil and that it may be regulated in the same way that lotteries and other forms of gambling are regulated by the Federal government, viz: by forbidding the interstate transportation of certificates of stock not approved by a Federal official as representing fair valuation. It is founded on the doctrine of Champion v. Ames, which held it sufficient that lottery tickets might become the subject of interstate traffic. INSURANCE (Waiver) AN instructive essay on a subject of great importance to the practitioner entitled "Waiver in Insurance Cases." by John S. Ewart, is printed in the March Harvard Law Review (V. xviii, p. 364). From a series of definitions and interpretations of waiver in the cases the author deduces six different views of its nature : "Irrespective of the disagreement as to whether waiver must be based upon inten tion, there are six different views presented in these extracts, and for each of them plenty of authority can be cited: "Policies are crowded with numerous finetype conditions, breach of any one of which 'renders this policy void." And when a loss

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takes place the company frequently pleads (i) the existence, and (2) the breach, of one of these conditions. This is supposed to be a perfectly good plea, and the plaintiff replies, and tries to prove some waiver by the com pany of either the condition or the breach of it. If he fails to prove waiver he is beaten. "All the cases proceed in this way, and it is my contention that they are all wrong. Dem onstration of this assertion, moreover, I con ceive to be an extremely simple task." It is generally agreed that a breach of con dition makes the policy not void but voidable at the election of the company : "The company may do as it likes, subject to this: that being given a choice between two things it cannot take both. But as a matter of practice, aided by current notions of law, it does take both. For example, default is made in payment of a premium, and the com pany has consequently a right to terminate the contract. But that is the very last thing it wants to do and will do. On the contrary, it will dun and humor the chap, and take something on account and notes for the bal ance, and threaten and sue, and attach, and worry, in order to get the premium and keep the assured as a future subscriber. And if a loss happens meanwhile? Well, that of course is a different thing. The policy says that if the premium is not paid 'this policy shall be void'; and the premium was not paid; and is not that a good defense? According to t>resent ideas it is, unless you can prove waiver. "It is not right even to say that the land lord or insurer waived his right to forfeit; for he did not. He had the right to choose be tween terminating the contract and continu ing it; and he exercised that right of choice; he did not waive it, or give it up. If he had elected to determine the contract, no one would think of affirming that, by so doing, he had waived his right to continue it. And it is not more correct, when the election is to continue the contract, to say that he waived his right to determine it. If you have a choice between an apple and an orange, and you choose the orange, it would be rather absurd to say, either that you waived the apple, or your right to the apple (for you had none), or even your right to choose the apple (for you exercised your right by not choosing it)."