CORPORATIONS

- NATURE OF THE CORPORATION

·CORPORATE ACTION PER SE THROUGH THE MEDIUM OF ADMINISTRATIVE Officer. - A statute provided that chattel mortgages should have annexed an affidavit of consideration made by the holder of the mortgage, his agent, or attorney. The affidavit annexed to a mortgage taken by a corporation recited that the affiant was vicepresident of the corporate mortgagee. Held, that the affidavit need not contain a recital that the affiant is an agent, because the act of the administrative officer was the act of the corporate mortgagee per se. American Soda Fountain Co. v. Stolzenbach, 68 Atl. 1078 (N. J., Ct. Er. and App.). See NOTES, p. 535.

DAMAGES CONSEQUENTIAL DAMAGES MENTAL ANGUISH RESULTING FROM EXCLUSION FROM DANCE HALL. The plaintiff, attired in the uniform of a non-commissioned officer in the navy, was refused admission to the defendant's dance hall on a ticket bought by him while in civilian dress. Held, that the plaintiff may recover only the price of the ticket. Buenzle v. Newport Amusement Ass'n, 68 Atl. 721 (R. I.).

A theatre ticket is a revocable license; but if it is wrongfully revoked an action for breach of contract is maintainable. Burton v. Scherpf, 1 Allen (Mass.) 133. The ordinary rule limits recovery for breach of contract to those damages within the contemplation of the parties on entering the agreement. Hadley v. Baxendale, 9 Exch. 341; see 12 HARV. L. REV. 423. Although pecuniary loss only is contemplated as the result of a breach of most contracts, nevertheless, where it is clear that a breach of contract will result in mental anguish, such anguish is made the basis of further damages. For example, in an action for breach of contract to carry, damages were allowed for humiliation attending ejectment from an excursion steamer. Coppin v. Braithwaite, 8 Jur. 875. Similarly, damages have been recovered for mental anguish resulting from breach of contract to furnish a trousseau on the agreed day, and to preserve the remains of a plaintiff's child until interment. Lewis v. Holmes, 109 La. 1030; Renihan v. Wright, 125 Ind. 536. Since humiliation might reasonably have been contemplated as a consequence of refusal to perform the present contract, in the absence of fraud on the plaintiff's part, the court's limitation on the verdict seems insupportable. See 1 HARV. L. Rev. 17, 21.

EXTRADITION INTERSTATE EXTRADITION UNDER U. S. CONSTITUTION - WHAT CONSTITUTES A FUGITive from JustICE. - The plaintiff, while in Rhode Island, was indicted for a crime committed in New York. Upon demand Rhode Island delivered him up to the New York authorities. When he was arraigned, the district attorney moved to dismiss the indictment for failure of evidence. The motion was granted, and the plaintiff returned to Rhode Island without objection from the authorities. He was again indicted in New York for this crime, and upon demand the Governor of Rhode Island had him arrested for extradition. He sued out a writ of habeas corpus. Held, that the plaintiff's discharge from custody be refused. Bassing v. Cady, 208 U. S. 386.

This is the first time this point has arisen. The Supreme Court refused to limit further the class of persons falling within the interstate extradition provisions in the United States Constitution and statutes. See 12 HARV. L. REV. 532; 21 ibid. 224.

ILLEGAL CONTRACTS - CONTRACTS COLLATERALLY RELATED TO SOMETHING ILLEGAL CONTRACT OBTAINED BY BRIBERY OF AN AGENT. - A statute made it a crime to give an agent a bonus to influence his conduct in his employment. The plaintiff gave such a bonus to the defendant's agent, inducing the agent to give him a contract for the sale of goods to the defendant. Having fully performed, the plaintiff brought suit for the purchase price. Held, that he cannot recover. Sirkin v. Fourteenth Street Store, 38 N. Y. L. J. 2193 (N. Y. App. Div., Feb., 1908).

The agreement between the agent and the plaintiff would be illegal even in the absence of a statute. Holcomb v. Weaver, 136 Mass. 265. But the contract sued on is an independent contract with a different party. Though the means of procuring it are criminal, neither the consideration nor the purpose of the new

contract is illegal. The corrupt agreement with the agent would seem to be merely collateral to the main contract, and not so closely connected with it as to render it illegal. City of Findlay v. Pertz, 66 Fed. 427. The better view would hold the contract valid but voidable at the option of the defendant, as in cases of fraud. The defendant may then rescind the contract, return the goods and sue in tort for any damages he has suffered. Young v. Hughes, 32 N. J. Eq. 372. Or he may affirm the contract and claim the bonus, from the agent if it has been paid over to him; if not, from the plaintiff. Grant v. The Gold, etc., Syndicate, [1900] 1 Q. B. 233. To allow the defendant to keep the goods and to pay nothing for them seems erroneous.

INJUNCTIONS NATURE AND Scope of Remedy - Street RAILWAY ENJOINED FROM DECREASING ITS SERVICE. The defendant railway threatened to decrease the number of cars on one of its lines from one every ten minutes to one every twenty minutes. The attorney-general applied for a decree enjoining it from running a smaller number of cars than at present. The lower court granted a permanent injunction. Held, that the injunction is proper. Territory of Hawaii v. Honolulu Rapid Transit & Land Co., Sup. Ct. of Hawaii, Jan. 20, 1908.

It may be taken as an elementary principle that equity should not intervene except in the absence of an adequate remedy at law. It would seem that the court should be especially careful in a case like this because of the hesitation which is usually felt over granting a mandatory injunction. See 12 HARV. L. REV. 95. Further, it is submitted that there is an adequate remedy by mandamus. The facts in this case appeared to the court to show clearly that it was the statutory duty of the railroad to maintain the more frequent service. It is no objection that the statute does not order a specific number of cars, so long as the duty is clear and the railway fails to perform it. Mandamus has been frequently granted in analogous cases. Indiana v. L. E. & W. Ry., 83 Fed. 284; People v. Troy & Boston Ry., 37 How. Pr. (N. Y.) 427. Since the duty is owed to the public, suit may properly be brought by the attorney-general in their behalf. Florida v. Johnson, 30 Fla. 433. It would seem, therefore, that this is not a proper case for an injunction, negative in form but mandatory in substance.

INSURANCE DEFENSES OF INSURER EXECUTION OF INSURED FOR CRIME. --- A insured his life with the defendant company under a policy which contained no provision against death at the hands of justice. He committed a murder, and was convicted and executed therefor. His executor sought to recover on the policy. Held, that he can recover. Collins v. Metropolitan Life Ins. Co., 83 N. E. 542 (Ill.). See NOTES, p. 530.

INTERSTATE COMMERCE ELKINS ACT RECEIVING ILLEGAL CONCESSIONS FROM PUBLISHED RATES A CONTINUING CRIME. The defendant carrier's contract with the defendant shipper called for transportation at rates which necessitated concessions, owing to a subsequent change in the published rates. The concessions were obtained and the goods delivered to the carrier in Kansas. The prosecution was instituted in a district of Missouri through which the goods were transported. Held, that the concessions so granted were a violation of the Elkins Act, and that the court has jurisdiction, since receiving such concessions is a continuing act. Armour Packing Co. v. United States, 209 U. S. 56.

For a discussion of this case in the lower court, see 21 HARV. L. Rev. 135. LIMITATION OF ACTIONS

- ACCRUAL OF ACTION ACTION BY OWNER OF FUTURE INTEREST IN PERSONALTY. — The defendant bank assisted the owner of a life interest in several of its shares to sell the shares outright. Held, that the statute of limitations began to run against the owner of the future interest from the date of the sale. Yeager v. Bank of Kentucky, 106 S. W. 806 (Ky.).

A mere trespasser on land cannot be sued by the remainderman and conse

quently cannot acquire a prescriptive title to the remainder. Jeffries v. Butler, 108 Ky. 531. But against any one causing actual damage to an expectant estate an action lies, and it suit is not brought within the statutory period, a prescriptive right may be acquired. See Metropolitan Ass'n v. Petch, 5 C. B. (N. S.) 504; Heilborn v. Water Ditch Co., 75 Cal. 117. If the property is personalty, the statutory period does not begin to run against a future interest in favor of a stranger in possession until the termination of the life interest, since until that time the owner of the future interest has no cause of action. Clarkson v. Booth, 17 Grat. (Va.) 490. In the present case, the action not being against an adverse possessor but against one who aided in the conversion of the entire property, the period of limitation is properly computed from the date of the act. It is impossible to select as the starting-point the termination of the life interest, because the conversion is an immediate wrong to the owner of the future interest. If the defendant is to be liable at all, the right of action must accrue at the time of the sale.

LIMITATION OF ACTIONS- NATURE AND CONSTRUCTION OF STATUTE APPLICATION TO REVERSIONER OF STATute Barring ACTION FOR PROPERTY SOLD BY ADMINISTRATOR. The defendant went into possession of land under a conveyance of the dower interest of the deceased's widow. Later he bought in the reversion at a void administrator's sale. A statute provided that all actions for the recovery of property bought at an administrator's sale should be barred one year after the sale. Held, that the reversioner is barred one year after the death of the widow. Jordan v. Bobbitt, 45 So. 311 (Miss.).

Ordinarily a statute of limitations begins to run not from the time the acts complained of occurred, but from the time a cause of action became vested; for the wording of the statute usually necessitates such construction. Andrews v. Hartford, etc., Co., 34 Conn. 57. In the present case the statute, by express provisions, is to run from the date of sale, and such statutes are usually strictly construed. Jones v. Billstein, 28 Wis. 221. But, as the court admits, it would be unreasonable to bar the plaintiff before his cause of action arose, and indeed such a construction would render the statute unconstitutional. See Price v. Hopkin, 13 Mich. 318. It would seem that inasmuch as the statute runs from the date of the sale, it was enacted to cut off within one year all causes of action then existing. But, since it cannot cut off the plaintiff's right at that time, it is a strained construction to make it run against him from the death of the life tenant. It would therefore seem that the general statute of limitations should apply. Kessinger v. Wilson, 53 Ark. 400.

MUNICIPAL CORPORATIONS - LIABILITY FOR TORTS PERMITTING FIREWORKS IN STREET. The defendant city issued a permit to a political club to give an exhibition of fireworks in the streets. At such an exhibition on a wide street, a mortar used for throwing bombs accidentally exploded, injuring the plaintiff, a voluntary spectator. Held, that the verdict and judgment for the defendant are affirmed, since the facts do not show a nuisance as a matter of law. Melker v. City of New York, 190 N. Y. 481.

This case confines an earlier New York decision, which held that the discharge of fireworks in the streets of a large city constituted a nuisance as a matter of law, to its particular facts. See Speir v. City of Brooklyn, 139 N. Y. 6. The present case is clearly right in holding that whether a given act is a nuisance depends upon all the circumstances under which the act is committed. The court, however, assumes, and it seems to be law in New York, that if this exhibition was a nuisance the defendant would necessarily be liable to any one who was hurt by it. Landau v. City of New York, 180 N. Y. 48. The only ground upon which the defendant can be held liable in this case is that it neglected its duty to use due care to keep its streets reasonably free from obstructions and nuisances. But in order to recover for negligence, the plaintiff must show that there was a duty owing to him. O'Donnell v. Providence & Worcester Ry., 6 R. I. 211. It is at least doubtful if a city owes such a duty to persons who are present merely as spectators of the alleged nuisance and not

as users of the highway in the ordinary manner. Enfield, 13 Gray (Mass.) 344.

Richards v. Inhabitants of

OF

NUISANCE WHAT CONSTITUTES A NUISANCE OBSTRUCTION QUASI-PUBLIC DOCK. A dock owned by a corporation, but by statute open to all persons on payment of the dock rates, was negligently damaged by the defendant so that it had to be closed for repairs. The plaintiff sought to recover for delay resulting from his being unable to dock his ship and to load his cargo. Held, that the plaintiff cannot recover. Anglo-Algerian S. S. Co. v. Houlder Line, [1908] K. B. 659.

It is settled that an individual can recover for the direct, particular damages he suffers from unlawful obstruction of a highway. Rose v. Miles, 4 M. & S. 101. Though there is some conflict as to how direct the damages must be to give ground for an action, if obstructing the dock were considered equivalent to obstructing a highway, the damage was probably sufficiently direct to warrant a recovery in the present case. Brick Mfg. Co. v. D. L. & W. R., 51 N. J. L. 56; cf. Willard v. Cambridge, 3 Allen (Mass.) 574; see 19 HARV. L. REV. 540. The plaintiff's statutory right to use the dock on payment of the dock rates might seem as worthy of protection as his right to use a highway. The court seems warranted, however, in not applying the principles applicable to cases of public nuisance, since the courts tend to restrict the limits of liability in such cases. Willard v. Cambridge, supra. Moreover the position of the dock company closely resembles that of a common carrier, and it has been held that a brakeman injured by a bridge so negligently built that it obstructed a railroad's right of way cannot recover from the construction company. Stoneback v. Thomas Iron Co., 4 Atl. 721 (Pa.).

PATENTS INFRINGEMENT - EXPIRATION OF PATENT AS AFFECTING REMEDY IN EQUITY. — A bill was filed thirteen days before the expiration of a patent to restrain its infringement and secure an accounting. The defendant had two months in which to enter an appearance. Held, that the bill is dismissed, since an injunction is not the real object of the suit. Diamond StoneSawing Machine Co. of N. Y. v. Seus, 38 N. Y. L. J. 2469 (Circ. Ct., S. D. N. Y., Mar. 1908).

A prayer for an injunction is ordinarily essential in order that equity may entertain a bill for the infringement of a patent. Root v. Railway Co., 105 U. S. 189. And an injunction is not granted after the patentee's license has expired. Campbell v. Ward, 12 Fed. 150; but cf. N. Y., etc., Co. v. Magowan, 27 Fed. 111. But a bill will not be dismissed because the patent expired between the beginning and the termination of the suit, for equity retains jurisdiction to complete the patentee's remedy in one proceeding. Beedle v. Bennett, 122 U. S. 71. The prayer for an injunction cannot, however, be used as a pretext to secure such an equitable settlement when the legal remedy is adequate. McDonald v. Miller, 84 Fed. 344. Nor will equity assume jurisdiction when the patent runs out so soon that an injunction, although honestly desired, cannot be granted before the patent expires. Bragg Mfg. Co. v. Hartford, 56 Fed. 292. If the patentee delays until the expiration of his right is at hand, his good faith becomes questionable, and, although an injunction can be had before the patent expires, assumption of jurisdiction is in the discretion of the court.

POLICE POWER - REGULATION OF BUSINESS AND OCCUPATIONS - TENHOUR LAW FOR WOMEN IN FACTORIES. — An Oregon statute provided that no female should be employed in any mechanical establishment, or factory, or laundry more than ten hours during any one day. Held, that the statute is constitutional. Muller v. Oregon, 208 U. S. 412.

For a discussion of the principles involved, see 20 HARV. L. REV. 653. See also supra, p. 495 et seq.

QUASI-CONTRACTS UNDER CONTRACT RENDERED.

RIGHT AND OBLIGATIONS OF PARTIES IN DEFAULT - RECOVERY BY PLAINTIFF IN DEFAULT FOR SERVICES The plaintiff abandoned a contract of service which was unen

forceable under the statute of frauds, and sued on a quantum meruit for the value of services rendered. Held, that the plaintiff cannot recover. Collins v. Smith, 44 Can. L. J. 163 (Ont., Div. Ct., Feb. 3, 1908).

It is generally held that one who abandons a contract cannot recover for a part performance of it. Hapgood v. Shaw, 105 Mass. 276. But, by the weight of authority, a plaintiff in default may recover for services rendered under an oral contract unenforceable by reason of the statute of frauds. Bentley v. Smith, 59 S. E. 720 (Ga.); contra, Swanzee v. Moore, 22 Ill. 63. The reason usually given is that the defendant should not be allowed to set up the void contract as a defense. King v. Welcome, 5 Gray (Mass.) 41. This position, however, seems inconsistent with the plaintiff's privilege of setting up the contract to raise an implied promise for his quantum meruit, and with the effect given to the contract in fixing his damages. If recovery is allowed, it would seem better to put it on the ground that the defendant would be unjustly enriched by being allowed to retain the benefit of the plaintiff's services without paying for them. Accordingly any damages caused by the plaintiff's failure to fully perform should be deducted from the amount allowed for his services. Fuller v. Rice, 52 Mich. 435.

RECEIVERS LIABILITY FOR RECEIVERSHIP EXPENSES. The plaintiff brought suit for the foreclosure and sale of the property of a quasi-public corporation. Upon the plaintiff's application a receiver was appointed pending final judgment in the suit. After a decree establishing the plaintiff's rights it was found that the assets of the corporation were insufficient to pay the expenses of the receivership. Held, that the plaintiff is not personally liable for the deficiency. Atlantic Trust Co. v. Chapman, 208 U. S. 360. See NOTES, p. 529. SOVEREIGNS ACTION BY TRUSTEE PROCESS AGAINST RAILWAY OWNED BY FOREIGN SOVEREIGN. The plaintiff brought suit for a tort by trustee process in Massachusetts against an unincorporated railway in Canada owned by the Crown. Held, that the court has no jurisdiction. Mason v. Intercolonial Ry. of Canada, 83 N. E. 876 (Mass.).

The court considered the case as if it were a suit against a foreign sovereign. A similar case was discussed in 17 HARV. L. REV. 270, 348.

STATUTES - INTERPRETATION — EFFECT OF SPECIAL SAVING CLAUSE ON GENERAL SAVING STATUTE. -The defendant was convicted of paying rebates in violation of the first section of the Elkins Act which had been superseded by the Hepburn Act. The offenses were committed prior to the enactment of the latter. The Hepburn Act expressly repeals all statutes or parts of statutes in conflict with its provisions. It contains an express saving clause mentioning only pending causes, and providing that such causes "shall be prosecuted to conclusion in the manner heretofore provided by law." § 13 of the United States Revised Statutes provides that "the repeal of any statute shall not have the effect to release any penalty incurred under such statute unless the repealing act shall so expressly provide." Held, that the conviction is valid. Great Northern Ry. Co. v. United States, 208 U. S. 452.

For a discussion of a previous decision reaching the same result, see 20 HARV. L. REV. 502.

SURETYSHIP SURETY'S RIGHT OF SUBROGATION SUBROGATION TO RIGHTS OF PRINCIPAL. - The B Company became surety on the statutory bond given by A, a contractor on government work, for the performance of the contract and the payment of laborers and materialmen. A completed the work, but B had to pay to laborers more than the amount due to the contractor and retained by the government under the contract. Held, that B is entitled to the fund retained by the government. Henningsen v. U. S. Fidelity and Guaranty Co., 208 U. S. 404.

It is fundamental in the law of suretyship that a surety discharging the obligation of his principal is subrogated to the rights of the creditor against the principal. And the surety has also the right, equally well recognized but not