CARRIERS

DUTY TO ACCEPT AND CARRY PASSENGERS BLINDNESS AS GROUND FOR REJECTION. The defendant's agent in accordance with the rules of the company refused to sell a railroad ticket to the plaintiff on the ground that he was blind and unaccompanied by an attendant. Held, that the defendant is not liable in the absence of proof that its agent knew, or had reasonable grounds to believe, that the plaintiff, though blind, was qualified to travel alone. Illinois Central R. Co. v. Smith, 37 So. Rep. 643 (Miss.).

The prima facie duty of a carrier to accept all persons who present themselves for transportation must necessarily be subject to certain limitations made for the protection of the company. In view of the rule that a passenger who is affected with a disability of which the carrier knows, or has reason to know, is entitled to greater care and attention than an ordinary passenger, it seems but fair that the company should have the right of refusing to assume this added responsibility by requiring such persons to be accompanied by attendants. Cf. Croom v. Chicago, etc., Ry. Co., 52 Minn. 296; Columbus, etc., Ry. Co. v. Powell, 40 Ind. 37. The cases which hold that a railroad may refuse to carry drunken and insane persons rest partly upon this principle of fairness to the company, as well as upon the policy of protecting passengers from annoyance and danger. Cf. Pittsburgh, etc., Ry. Co. v. Vandyne, 57 Ind. 576; Meyer v. St. Louis, etc., Ry. Co., 54 Fed. Rep. 116. Blindness alone would appear sufficient cause for rejection, unless the company's agent has reason to believe that the person is able to take care of himself. Cf. Zachery v. Mobile and Ohio R. R. Co., 75 Miss. 746.

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CONSTITUTIONAL LAW SEPARATION OF POWERS AND DUE PROCESS OF LAW IMPOSITION OF PENALTY BY ASSESSOR. An Illinois statute required riparian landowners to remove all obstructions to the flow of water, and provided that the tax assessor should note any failure to do so, whereupon a drainage tax of ten dollars should be levied against each forty-acre tract as a penalty, to be collected like other taxes. The Illinois constitution provided that no person in one of the three departments of government should exercise any power properly belonging to another department, and declared that no person should be deprived of his property without due process of law. Held, that the statute is unconstitutional. Cleveland, etc., R. Co. v. People, 72 N. E. Rep. 725 (III.).

The primary object of taxation is raising revenue, while the present statute was meant rather to keep the streams clear by punishing failure to remove obstructions. The imposition of punishment, however, is for the judicial department, and tax assessors are not, properly speaking, judicial officers. Cf. State v. Thorne, 112 Wis. 81. The present case therefore seems sound: the constitution is not to be defeated by calling a penalty a tax. Attempts to do so are rare; but where a statute imposed a tax of ten thousand dollars on any lottery operating without permission, the court expressed the opinion that it was not really a tax and therefore was unconstitutional. State v. Allen, 2 McCord (S. C.) 55. The imposition by assessors of penalties for default in making return of taxable property or in paying taxes seems also logically a judicial function, but is upheld "on the ground of state necessity and immemorial usage.' Ex parte Lynch, 16 S. C. 32; and see Doll v. Evans, 11 Am. Law Reg. (N. S.) 315. Due process of law was also wanting in the principal case, as the assessor's decision, though given without a hearing, was final. Monticello Distilling Co. v. Baltimore, 90 Md. 416. CONTRIBUTORY NEGLIGENCE -THE LAST CHANCE DOCTRINE IN ADMIRALTY. Semble, that, in determining questions of contributory negligence, the rule of the last clear chance is not law in admiralty. The Steam Dredge No. 1, 134 Fed. Rep. 161 (C. C. A., First Circ.). See NOTES, p. 537.

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CORPORATIONS - DIRECTORS DUTY TO ACT IN A BODY.-The New Jersey Corporation Act of 1898 permits incorporators to insert in the certificate of incorporation any provision creating or defining the powers of the corporation not inconsistent with the Act. The directors of the defendant company, authorized by the certificate of incorporation to act individually, purchased stock in that manner of the plaintiff. The latter sought to enforce the sale against the corporation. Held, that the plaintiff cannot recover, as directors must act as a unit to bind the corporation. Audenried v. East Coast Milling Co., 59 Atl. Rep. 577 (N. J. Ch.).

The common law rule in regard to directors is that they can act only in a body, and any proceedings taken by them individually are of no effect on the corporation, even although a majority assent. First National Bank v. Drake, 35 Kan. 564. There seems to have been an opinion, more or less widespread, that the Act of 1898 abrogated this rule and allowed incorporators to authorize directors to act individually. This case, however, correctly decides that the general phraseology of the Act cannot be construed to permit such a departure from common-law principles, but must be interpreted

in accordance with them. To work so important a change, some specific enactment would be necessary.

CORPORATIONS

POWER OF CORPORATION TO PURCHASE ITS OWN SHARES.Held, that a solvent corporation may purchase its own shares. Burnes v. Burnes, 132 Fed. Rep. 485 (Circ. Ct., W. D. Mo.).

Held, That a corporation may not purchase its shares if the effect would be to render the corporation insolvent. In re S. P. Smith Lumber Co., 132 Fed. Rep. 618 (Dist. Ct., N. D. Tex.). See NOTES, p. 531.

CORPORATIONS

RIGHT

STOCKHOLDERS: RIGHTS INCIDENT TO MEMBERSHIP OF PREEMPTION AT PAR. — The majority stockholders of a corporation in good faith voted to double the capital stock, and sell the shares to a stranger for four times their par value. Held, that a dissenting stockholder has no right to purchase at par a portion of such new stock, proportionate to his share of the original stock. Stokes v. Continental Trust Co., 91 N. Y. Supp. 239.

Contrary to the present case, stockholders have almost everywhere been given the right of preemption at par of a part of the increase of stock, proportionate to their original shares. Cunningham's Appeal, 108 Pa. St. 546. But this rule is not applied to stock issued in payment for property, nor to old stock, bought in by the corporation, and reissued. Meredith v. New Jersey, etc., Co., 55 N. J. Eq. 211; State v. Smith, 48 Vt. 266. It is professedly allowed, to preserve each stockholder's influence in the corporation; but where a definite amount of new capital must be realized, this is accomplished equally well by allowing him the right to purchase only at the market value, since a smaller issue of stock would then be necessary. And the general rule practically compels corporations which wish to increase their stock, but have nearly reached their legal limit, to declare a dividend of the difference between the market value of the new stock and par; for those stockholders unable to subscribe can sell their right. See Jones v. Concord, etc., R. R., 67 N. H. 234. This would tend to prevent corporations from increasing their stock and developing their resources. In Indiana the rule has been changed by statute. See Ohio, etc., Co. v. Nunnemacher, 15 Ind. 294.

CORPORATIONS-STOCKHOLDERS: RIGHTS INCIDENT TO MEMBERSHIP-VESTING OF RIGHTS IN TRUSTEES - A majority of the stock in a New Jersey corporation was transferred to an English corporation for voting purposes. Semble, that a voting trust is contrary to public policy and void. Warren v. Pim, 59 Atl. Rep. 773 (N. J., Ct. App.). A reorganization committee, vested with title to stock under a trust agreement, was given power to make a final interpretation thereof, and to supply all defects and omissions. Held, that the committee cannot be made the final judge of its construction. Industrial & General Trust v. Tod, 180 N. Y. 215. See NOTES, p. 533.

CRIMINAL LAW DEFENSES - JUSTIFICATION UNDER PRIOR DECISION OF COURT. To an indictment of a tenant under a statute for removing crops without coming to an agreement with the landlord, the Supreme Court of the state held it a good defense that the balance of account was in favor of the tenant. For removal of crops under similar circumstances after this decision another defendant was convicted. Held, that the previous decision is incorrect, but that this defendant may have a new trial on the basis of that decision. State v. Bell, 49 S. E. Rep. 163 (N. C.).

A decision overruling former decisions does not change the law but gives revised evidence of what the law has always been. Falconer v. Simmons, 51 W. Va. 172. Consequently its application to transactions after the former decisions is not objectionable strictly as ex post facto nor as a law impairing contract obligations. Central Land Co. v. Laidley, 159 U. S. 103. But as it is practically open to the same objections, courts will not, in interpreting statutes, apply the new ruling to the prejudice of contract or property rights apparently acquired under the old. Farrior v. New England, etc., Co., 88 Ala. 275. This is not extended to decisions under the common law. See Ray v. Western, etc., Gas Co., 138 Pa. St. 576, 591. In criminal law reliance on former decisions should, as in the principal case, be a justification, not under mistake of law, but under the spirit in which ex post facto laws are prohibited-that acts which the court gave reason to suppose innocent should not be punished by a law which from a business point of view did not then exist. But obviously this policy does not apply to crimes involving moral turpitude. The only case found in point so decided. Lanier v. State, 57 Miss. 102.

DIVORCE - ALIMONY - PAYMENT AFTER DEATH OF HUSBAND. The plaintiff was granted a divorce from her husband with alimony during her life, secured by a mortgage executed by her husband and the defendant. The plaintiff sued to recover

alimony accruing since her husband's death. Held, that the plaintiff may recover, since the obligation to pay alimony is a charge on the security although the personal obligation does not survive. Wilson v. Hinman, 99 N. Y. App. Div. 41.

Alimony at common law becomes payable only during the joint lives of the parties, and cannot be granted to continue after the death of the husband. Maxwell v. Sawyer, 90 Wis. 352. By statute, however, a court may be empowered to grant it for the life of the wife, continuing as a binding obligation against the husband's estate, if she survive him. Stratton v. Stratton, 77 Me. 373. The intermediate view adopted by the New York court, that alimony survives only where security is required and then only as a charge on the security, seems erroneous; if the personal obligation is gone, the mortgage is discharged also. Cf. Williams v. Thurlow, 31 Me. 392. Further, the earlier decision relied on in the principal case held unqualifiedly that a court may grant alimony payable after the husband's death, laying no stress on the giving of security. Burr v. Burr, 10 Paige (N. Y.) 20, 37. A later New York case reached just the contrary decision, holding that alimony could not be so granted. Field v. Field, 15 Abb. New Cas. 434. On principle, the obligation to pay alimony either ceases on the death of the husband, being purely personal, or survives against his estate whether security be given or not.

EJECTMENT INTERFERENCE WITH EASEMENT — RAILROad Right of WAY. — The plaintiff, a railroad company, acquired lots for railway purposes under condemnation proceedings, and the defendant, not claiming under the original owner, built thereon. Held, that the plaintiff has an action of ejectment, although it enjoyed only an easement. Kansas, etc., Ry. Co. v. Burns, 79 Pac. Rep. 238 (Kan.).

Unless railways are given a fee by statute or charter in lands acquired under eminent domain, they are commonly held to take only an easement. Blake v. Rich, 34 N. H. 282. Ejectment, being a possessory action, does not properly lie for an incorporeal right such as an easement. Northern Turnpike Road Co. v. Smith, 15 Barb. (N. Y.) 355. But the action has sometimes been allowed for such easements as city streets and parks, which involve exclusive control of a portion of the servient tenement. San Francisco v. Grote, 120 Cal. 59. Similarly, a railway company has been said to have a right to an actual possession of the surface, sufficient to support ejectment. Tennessee, etc., R. R. Co. v. East Alabama Ry. Co., 75 Ala. 516. Granting that the railway's title to the soil is no more than an easement, it would follow logically that ejectment should have been denied and the plaintiff remitted to the ordinary remedies for obstruction of easements. The anomalous doctrine of the case must then be justified by the necessity which requires a summary remedy, and explained by the tendency to break down the rigid bounds which characterized forms of action under the common law. It seems, however, that such an extension would be better accomplished by legislation.

EMINENT DOMAIN WHAT PROPERTY MAY BE TAKEN-SITE FOR STEAM POWER-HOUSE for ElectrIC POWER COMPANY. - A company formed to manufacture, transmit, and sell electricity brought an action to condemn land for the use of its wires. Semble, that it might condemn land for a steam power-house. Rockingham, etc., Co. v. Hobbs, 72 N. H. 531. See NOTES, p. 528.

PROCEEDINGS BY

EXECUTORS AND ADMINISTRATORS RIGHT LOST BY LACHES. The plaintiff as administrator sought an order to sell certain real estate of the deceased, incumbered by dower, for the payment of debts. At the time of the death of the intestate the property was practically worthless, but after nineteen years had recently become valuable. Held, that the plaintiff is barred by laches. Graham v. Brock, 72 N. E. Rep. 825 (Ill.).

The question of laches is one of negligence. It does not depend, as does the running of a statute of limitations, upon the fact that a certain definite time has elapsed since the cause of action accrued, but upon the fact that, under all the circumstances of the particular case, the plaintiff is chargeable with a want of due diligence in failing to institute proceedings before he did. Townsend v. Vanderwerker, 160 U. S. 171. In this case the plaintiff refrained from petitioning for the sale of the land so long only as it was worthless. This would appear to be a sufficient explanation of his previous delay in bringing suit. On principle and on authority the decision seems erroneous, and is apparently irreconcilable with an earlier case in the same State. Cf. Judd v. Ross, 146 Ill. 40; Conger v. Cook, 56 Ia. 117.

EXTRADITION

INTERNATIONAL EXTRADITION

APPLICATION of Gaynor aND GREENE FOR HABEAS CORPUS. The defendants, charged with the commission of theft in the United States, had taken up their residence at Quebec. In accordance

with the extradition arrangements between the United States and Canada, an application for their arrest upon an information charging theft was made to an extradition commissioner and a warrant was duly issued. Upon arrest they obtained a writ of habeas corpus; but on the hearing they were remanded into custody. Upon a writ of habeas corpus issued by another judge, however, they were discharged. Held, that the latter judgment must be reversed. United States v. Gaynor, 21 T. L. R. 254 (Eng., P. C.).

The division of the province into separate judicial districts makes it doubtful whether or not the first judge had jurisdiction. If he did, his decision was, under a Canadian statute, a bar to the issue of the second writ, as res judicata. But without considering whether the second judge was warranted in assuming jurisdiction, it seems clear that his discharge of the prisoners was erroneous. The only question before him was the lawfulness of the confinement. That it was lawful would seem to admit of no doubt. Cf. Ex parte Gillespie, 7 Quebec Q. B. 422. The commissioner was an official authorized by statute to order an arrest anywhere within the province upon a complaint alleging an offense named in the extradition treaty, and either at once or on remand to investigate the case. Cf. Extradition Act (Rev. St. Can., c. 142); see Ex parte Seitz, 8 Quebec Q. B. 345, 351, 352. In pursuance of his duty, he had ordered the defendants into custody to await a hearing, which would take place before him in due course. As theft was an offense within the treaty, it follows that the commitment was lawful.

GARNISHMENT EXEMPTION OF WAGES - ·ESTOPPEL TO CLAIM STATUTORY EXEMPTION.- The plaintiff, at the request of the defendant, his debtor, garnisheed the defendant's employer. The defendant then moved for a release of the money attached, on the ground that it was exempt by statute as the earnings of the head of a family. Held, that the defendant is estopped to claim the exemption. Dowling & Allgood v. Wood, 101 N. W. Rep. 113 (Ia.).

A contract to waive exemption as against a particular debt if made when that debt is incurred is invalid, since to permit such contracts would defeat the operation of the exemption laws. Kneetle v. Newcomb, 22 N. Y. 249. Some courts, going further, have held that since the exemption was intended to benefit the debtor's family as well as himself, a waiver by him alone should not be recognized, for such recognition would defeat one purpose of the exemption laws. Denny v. White, 2 Cold. (Tenn.) 283. But by the weight of authority, while the principle first stated is admitted, the right of exemption is regarded as personal to the debtor, and as such, irrespective of the purpose with which it was given, is considered dependent for its exercise upon his will. Charpentier v. Bresnaham, 62 Mich. 360. If waiver is allowed, estoppel must be permitted, for acts falling short of estoppel may yet be a waiver. Bramble v. State, 41 Md. 435. It is somewhat difficult, on the meager facts reported, to find in the present decision all the elements of estoppel; but the result seems sound, since there was apparently at least a waiver of the exemption by the defendant.

IMPROVEMENTS - COMPENSATION COLOR OF TITLE. In an action to recover land, the defendant, who was in possession under a bond for title from a third person, claimed a judgment for the value of the improvements made by him upon the land, under a statute permitting recovery for such improvements where made by one believing himself to be the owner either in law or equity, under color of title. Held, that there is not sufficient color of title to satisfy the requirements of the statute. Beasley v. Equitable Securities Co., 84 S. W. Rep. 224 (Ark.). See NOTESs, p. 534.

INSURANCE-CONSTRUCTION OF PARTICULAR PHRASES - CHANGE IN

"INTER

EST, TITLE, OR POSSESSION.". A policy of fire-insurance provided that it should be void if any change should take place, by legal process or otherwise, in "interest, title or possession," excepting change of occupants without increase of hazard. Subsequently the insured was adjudged bankrupt and the appointment of a receiver over his property was entered in the referee's record. A fire destroyed the premises, following which the receiver was formally appointed and later made assignee in bankruptcy. Held, that the policy was not void at the time of the loss. Fuller v. Jameson, 98 Ñ. Ý. App. Div. 53.

After adjudication the bankrupt seems to hold his property under some undefined fiduciary relation, sometimes described as a trust. Rand v. Iowa Central Ry. Co., 96 N. Y. App. Div. 413; cf. 18 HARV. L. REV. 63. Interest, as referred to in the policy, has been construed to include equitable interest. Skinner, etc., Co. v. Houghton, 92 Md. 68. Perhaps the change of interest was here immaterial, if, as the court says, the bankrupt's right to deal with his property was merely suspended and he still retained the interest desired as an incentive to vígilance and care. Had the receiver been formally

appointed before the fire, it may be that his possession, unless it came within the exception stated, would have avoided the policy. But see Keeney v. Home Insurance Co., 71 N. Y. 396. That, under the Bankruptcy Act, title vests in the assignee upon formal appointment, as of the day of adjudication, is not conclusive against the decision. Such a fiction should not operate to the injury of third persons, as regards property not existing when the assignee qualifies. Small v. Westchester, etc., Co., 51 Fed. Rep. 789, 795; Fuller v. New York, etc., Co., 184 Mass. 12. The court, however, to avoid forfeiture and to protect creditors during the interim, has construed the policy very strongly against the company.

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INTERSTATE COMMERCE CONTROL BY STATES ORIGINAL PACKAGES. state statute imposed a tax of three hundred dollars per annum on persons selling cigarettes. Held, that when pasteboard boxes, each containing ten cigarettes, and bearing a revenue stamp, are imported loose, the original package rule does not exempt the seller of such a package from taxation. Cook v. County of Marshall, 25 Sup. Ct. Rep. 233. See NOTES, p. 530.

JUDGMENTS FOREIGN JUDGMENTS FULL FAITH AND CREDIT UNDER THE FEDERAL CONSTITUTION. The plaintiff sued his debtor in a Missouri court and garnisheed the defendant. Pending this proceeding, the defendant secured a decree in Missouri setting aside the contract between him and the plaintiff's debtor, and declaring that nothing was due the debtor. The latter then sued the defendant in New Jersey on two counts, on the express contract, and for work and labor. The defendant pleaded the Missouri judgment to the first count and a general denial to the second. Judgment on the latter was given for the debtor and was paid. The plaintiff in the original proceeding then sought to secure judgment against the defendant on the basis of this New Jersey judgment, and the latter neglected to plead payment. Held, that since the judgment of the New Jersey court did not give full faith and credit to the Missouri judgment, the Missouri court need not give credit to that New Jersey judgment, and the plaintiff cannot recover. Grimm v. Barrington, 84 S. W. Rep. 357 (Mo., St. Louis Ct. App.).

This case seems questionable. The Missouri judgment was an affirmative defense similar to res adjudicata, and therefore, not having been pleaded to the second count in the New Jersey suit, the judgment on that count was correct. And no defense which with diligence might have been made in the suit can be an answer to an action elsewhere on the judgment. Snow v. Mitchell, 37 Kan. 636. But granting that the New Jersey court erred, by the general rule full credit must be given the judgment of a sister state, except when rendered by a court without jurisdiction, or when a collateral attack would be valid in that state. See Barras v. Bidwell, 3 Woods (U.S.) 5. Mere irregularity such as affords ground for direct appeal is no defense. Milne v. Van Buskirk, 9 Ia. 558. By the better view the error here, if any, would appear to have been ground rather for appeal than for collateral attack, and no appeal having been taken, Missouri was bound to give credit to the judgment. Ex parte Boenninghausen, 91 Mo. 301; Buckmaster v. Carlin, 4 Ill. 104.

LIMITATION OF ACTIONS ACCRUAL OF ACTION - DISTRICT WARRANTS. -The plaintiff held warrants of a reclamation district drawn upon the county treasurer but not paid for want of funds, which it was within the power of the trustees of the district to provide by levying an assessment. After the lapse of more than the statutory period from the date of approval of the warrants, the plaintiff sued. Held, that as the plaintiff might have brought mandamus at any time to compel the raising of funds, he is barred. San Francisco Savings Union v. Reclamation District, 79 Pac. Rep. 374 (Cal.). In assigning this ground for its decision the court takes a position opposed to that adopted in the case of Barnes v. Turner, 78 Pac. Rep. 108 (Okla.), which was adversely criticised in 18 HARV. L. REV. 230.

MALICIOUS PROSECUTION

- PRELIMINARY INJUNCTION AS EVIDENCE OF PROB

ABLE CAUSE. - Held, that an injunction pendente lite, granted upon affidavits, is prima facie evidence of probable cause, so that, if in a suit for malicious prosecution it is not overcome by other evidence, a nonsuit is proper. Burt v. Smith, 181 N. Y. 1.

For a discussion of the holding in the lower court which is here reversed, see 17 HARV. L. REV. 61.

MORTGAGES - EQUITABLE MORTGAGES RIGHT TO RENTS AND PROFITS. Held, that an equitable mortgagee who has received rents from a tenant of the equitable mortgagor, cannot be compelled to refund them at the suit of the tenant. Finck v. Tranter, [1905] 1 K. B. 427.