RECENT CASES. 131 ceptions to the general rule of exclusion. It was a declaration in the deceased party's interest, and should have been rejected. Reese v. Mtirnan, 5 Wash. 373. Evidence — Negligence — " Stop, Look, and Listen" ^.y.. — Held, negli- gence is a question of fact, depending upon the circumstances, and it is not negligence per se for one about to cross the tracks of a street railway to omit to look in both directions for the approach of a car. Cincinnati St. Ry. Co. v. Snell, 43 N. E. Rep. 207 (Ohio). While recognizing the rule, apparently well established in Ohio, that one who crosses the tracks of a steam railroad, must, in the absence of a reasonable excuse, look and listen, in order to avoid the imputation of negligence, the majority of the court refuse to extend it to cases of electric street cars. Even in the case of a steam railroad the better view would seem to be that failure to look and listen is properly only pri7na facie evidence of negligence, and the defendant is entitled to have the extenuating circum- stances weighed by the jury. Stackus v. Ratlroad, 79 N. Y. 464. A fortiori, in the case of the street railway where the company does not own the tracks, and where less agility should be required to avoid the cars when discovered, the hard and fast rule is inap- propriate. Insurance — Arson by Agent of Assured. — Where evidence showed that the agent of the assured, having entire management of the business, had caused the destruc- tion of the property by fire, held, that as no evidence connected the assured with the arson, the loss was within the perils against which the policy insured. Feibelman v. Mafichester Fire Assurance Co., 19 So. Rep. 540 (Ala.). The ca<e is regarded as law, though apparently decided but once before. Hender- son V. Ins. Co , 10 Rob. (La.) 164; i Kiddle on Insurance, § 442. It is interesting, how- ever, to note that the act of the agent is the same in the principal case as that which constitutes barratry in marine insurance. And while it was always the custom to specifv in marine policies that barratry was insured against, — see 2 Phillips on Mar. Ins., §§ 9, 1065, — it was eventually decided that in the absence of such a stipulation barratrv was not included among the perils covered by the policy; Waters v. Mer- chants'" Ins. Co., II Peters, 213 ; and the wilful misconduct of servants causing loss of goods upon land has been considered barratry in one case under a marine policy. Boehm v. Combe, 2 Mau'e & Sel. 172. So the law of the two branches of insurance is in apparent conflict. Insurance — Insurable Interest in Assignee of Life Policy. — Held, that a policy of life insurance issued to a person insured is a proper subject of sale and trans- fer, and is enforceable in the hands of an assignee, though he had no insurable interest in the life of the payee. Steinback v. Diepenbrock et al., 37 N. Y. Supp. 279. It appears to be fairly well settled that, on grounds of public policy, no one can take out a policy of insurance on a life in which he has no insurable interest. Greenhood on Public Policy, 279; Rnse v. Insurance Co., 23 N. Y, 516. There has been consider- able judicial conflict, however, on the question whether, after the policy is once issued, it may be assigned to one without insurable interest. The law in New York is pretty clearly in accord with the principal case. Olmstead . Reyes, 85 N. Y. 593. This view has been adopted by other American jurisdictions, and is apparently followed in Eng- land. See Clark v. Alleji, 11 R. I. 439; Ashley . Ashley, 3 Sim. 149. On the other hand, the United States Supreme Court and various State jurisdictions require an in- surable interest in the assignee. Cammack v. Lewis, 15 Wall. 643 ; Warnock v. Davis, 104 U. S. 775; Franklin Insurance Co. v. Hazzard, 41 Ind. 116; Gilbert y. Moose, 104 Pa. St. 74 ; Loomisy Adni'r, v. Life Ins. Co., 6 (iray, 396; Greenhood on Public Policy, 288. But see May on Insurance, 3d ed., pp. 832, 880. Persons — Divorce — Effect of Substituted Service on a Decree as to Custody of Children. — During proceedings for divorce, the husband, with his two infant children, was absent in a foreign country. Constructive notice had been served on him by publication, and at the trial it appeared that he had simply left the State to avoid the proceedings, and meant to return when the matter was closed. Held, by four judges to three, that no decree could be made against the husband as to the custody of the children. De la Montanya v. De la Montanya, 44 Pac. Rep. 345 (Cal). As to one ])oint, the majority of the court were clearly right; namely, that a per- sonal judgment on constructive service against a non-resident is void, even in the State where it is made. The law has shaped itself into this proposition since the case of Pennoyer v. Neff, 95 U. S. 714. The doubtful point in the case seems to be whether a decree as to custody of children may not be made against the husbind, when the chil- dren have been taken out of the State simply to avoid the divorce proceedings. Leav- ing aside the question, however, on which the majority and minority differed in this case, as to whether custody of children is a status to be passed on like marriage, it
