be subjected to jurisdiction on proper service. The court is restrained by no adverse policy; it is rather encouraged to furnish domestic relief to domestic plaintiffs, and may well decide on the natural, though difficult, basis of fact. This distinction is not expressed in the cases, but, it is submitted, will avoid some of the confusion on the subject. Cf. Colorado Iron-Works v. Sierra Grande Mining Co., 15 Col. 499. CORPORATIONS- - PROMOTERS LEASE TO CORPORATION TO BE FORMED. — A lease was executed to an association not at the time in existence. After incorporation the association accepted the lease, entered into possession of the premises, and for several years paid rent in accordance with the terms of the lease. This action for subsequently accruing rent was brought against its directors, under a statute imposing liability upon them for debts of the association payable within one year from the date when they were contracted. Held, that there can be no recovery against the defendants, since the, liability of the association for rent due was incurred, not by use and occupation, but under the covenant in the lease. Thistle v. Jones, 45 N. Y.

Misc. 215.

By the decided tendency of American authority corporations may assume the obligations of contracts made in their behalf by promoters. The technical difficulties in the way of reaching this result have given rise to considerable diversity of reasoning on the part of the courts, the usual ground of decision being either ratification or adoption, while in a few cases a novation has been implied. See 12 HARV. L. REV. 506; 14 ibid. 536. Where the obligation is in form a lease under seal, however, it would seem that at best only a tenancy from year to year could be established on any of these grounds. This added difficulty is obviated in the principal case by the court's presuming from the facts an assignment of the lease to the corporation, since an assignee of a lease is liable on the covenants therein. Such a presumption is permitted by the law of New York, and the court's line of reasoning in taking advantage of it is entirely in accord with the spirit of the American cases. Cf. Bedford v. Terhune, 30 N. Y. 453.

CORPORATIONS

STATUTORY LIABILITY OF STOCKHOLDERS ENFORCEMENT IN FOREIGN JURISDICTIONS. An Ohio statute provided for the enforcement of individual liability of stockholders in corporations by an action against all the stockholders for the benefit of all the creditors of the corporation, and indicated a maximum amount of costs recoverable against a stockholder in such an adjudication. Held, that the remedy thus provided cannot be pursued outside of Ohio. Middletown National Bank v. Toledo, etc., Ry. Co., 25 Sup. Ct. Rep. 462.

It is now well settled that a stockholder is under no liability to creditors of the corporation beyond the amount of his subscription unless such liability is imposed by statute. Gray v. Coffin, 9 Cush. (Mass.) 192. If liability is imposed by a statute of the state in which a corporation is chartered it will ordinarily be enforced by the courts of another state against stockholders within their jurisdiction. Flash v. Conn, 109 U. S. 371. The principal case shows, however, an important qualification to this general rule. If the liability created by the statute can be enforced only by some particular form of procedure it cannot be enforced in a foreign state unless the same kind of proceedings may be taken there. May v. Black, 77 Wis. 101. This doctrine seems obviously sound. Although stockholders assume the obligations imposed by the laws under which they are incorporated, they cannot be said to assume any others, and a view opposed to that illustrated by the principal case would subject stockholders residing outside of the state of incorporation to a burden greater than that borne by domestic stockholders. See Bank v. Francklyn, 120 U. S. 747.

CORPORATIONS-STATUTORY LIABILITY OF STOCKHOLDERS NATURE OF LIABILITY OF STOCKHOLDER IN NATIONAL BANK. A statute of Washington limited the right to bring an action upon a contract, express or implied, to three years. Held, that the liability of a stockholder in a national bank to creditors is not embraced within the statute. White, Brown, and McKenna, JJ., dissented. McClaine v. Rankin, 25 Sup. Ct. Rep. 410.

The statutory liability of ordinary stockholders is generally regarded as contractual. See 18 HARV. L. REV. 456. Accordingly an assignee of a claim against a corporation gets his assignor's right against stockholders. Blakeman v. Benton, 9 Mo. App. 107. Again, this right may be enforced outside of the state creating it, and will survive against the representative of a deceased stockholder. Flash v. Conn, 109 U. S. 371; Richmond v. Irons, 121 U. S. 27. So, too, a statute repealing a provision for individual liability is unconstitutional. Hawthorne v. Calef, 2 Wall. (U. S.) 10. Finally, the right is barred by the statute limiting the remedy on contracts. Carrol v. Green, 92 U. S. 509. The court seeks to distinguish the latter case from the present one, on the ground that

there the stockholder's liability to creditors was direct, while here it does not arise until an assessment by the comptroller. This ignores the difference between obligation and liability. The obligation is part of the stockholder's contract of subscription and is therefore contractual; but his liability is subject to the condition precedent of an assessment by the comptroller. Moreover this assessment would seem to provide a mode of enforcing the obligation rather than to affect its creation. The decision is contrary to dicta in previous cases. See Matteson v. Dent, 176 U. S. 521, 526.

CORPORATIONS STOCKHOLDERS: RIGHTS INCIDENT TO MEMBERSHIP - DISTRIBUTION OF DIVIDENDS BETWEEN LIFE TENANT AND REMAINDERMAN. — A corporation having assets valued far above its nominal capital, sold part of the property and declared a cash dividend from the proceeds. Both the life tenant and the remainderman of certain stock demanded the dividend, the former claiming it as declared from profits, the latter, as arising from surplus which by permanent investment had become capital. Held, that the life tenant is entitled to the dividend. Smith v. Dana, 60 Atl. Rep. 117 (Conn.).

Under the Massachusetts rule, by which cash dividends go to the life tenant as income, and stock dividends to the remainderman as capital, this case seems correct. Minot v. Paine, 99 Mass. 101. However, if a dividend is clearly declared from the proceeds of the sale of part of the capital stock, it goes to the remainderman. Heard v. Eldredge, 109 Mass. 258. That exception does not seem to apply here, for as the property value still exceeds the nominal capital of the corporation, the capital stock remains intact. Furthermore, surplus invested in permanent improvements would seem to become capital only in the broad sense of funds engaged in the business, which, unless new stock had been issued, directors could again withdraw and distribute as profits. MORAWETZ, PRIVATE CORPORATIONS, 2d ed., §§ 452, 453. But see Hemenway v. Hemenway, 181 Mass. 406. Under the Pennsylvania rule that surplus earned before the death of the testator goes to the remainderman, and that earned thereafter, to the life tenant, irrespective of the form of the dividend, the remainderman would be entitled here. For a discussion of the merits of these different rules, see 16 HARV. L. REV. 54.

CRIMINAL LAW - NEGLIGENCE RESPONSIBILITY FOR FAILURE TO USE PRAYER. The defendant, honestly believing prayer to be the only efficacious remedy for disease, neglected to furnish either medical attendance or prayer for an ailing minor to whom he stood in loco parentis. No statute within the jurisdiction required a parent to furnish medical attendance to a sick child. Held, that the defendant cannot be convicted of homicide. State v. Sandford, 59 Atl. Rep. 597 (Me.).

The common law generally refuses to hold a parent for failure to provide medical attendance in which he conscientiously disbelieves, the reason being the absence of mens rea. Regina v. Wagstaffe, 10 Cox C. C. 530. For him certain remedies are as if non-existent. When the parent wantonly fails to furnish what he conscientiously can, the question must yet arise whether that omission has any causal connection with the fatality. Certain methods of treating the sick are almost uniformly recognized as scientific and effectual. If they be carelessly withheld a jury may hear testimony as to their efficacy under the circumstances. But upon the efficiency of unaided prayer society is not so nearly agreed. The jury has then no premise upon which to base their investigation, the result of which will therefore depend upon the accidental beliefs of the twelve individuals. In such a case, the court well says, the prisoner cannot properly be tried. Statutes have elsewhere sought to avoid this disappointing result by imposing upon parents a definite legal duty.

- A re

DEEDS-QUITCLAIM DEEDS OPERATION UNDER RECORDING ACTS.. cording act provided that every conveyance should be void as against a subsequent purchaser in good faith whose conveyance was first recorded. Held, that the grantee in a subsequent quitclaim deed is not protected as a purchaser in good faith against a prior unrecorded warranty deed. Fowler v. Will, 102 N. W. Rep. 598 (S. Dak.).

At common law, since a quitclaim deed purports to convey only such right as the grantor has, the grantee is put upon inquiry and takes the estate subject to existing claims, legal and equitable. Cf. Oliver v. Piatt, 3 How. (U. S.) 333, 410. By a number of courts this doctrine has been used to interpret the recording acts. Steele v. Sioux Valley Bank, 79 Ia. 339. But those courts illogically fail to affect with notice one who takes by deed of warranty from the grantee of a quitclaim deed. Winkler v. Miller, 54 Ia. 476. The recording laws, however, provide a statutory estoppel for the protection of innocent purchasers. And, since it is neither necessarily nor usually true that a quitclaim deed comes to its grantee tainted with distrust, it seems that he should be equally protected if he has purchased in good faith, for value, and without

notice of prior conveyances. Such has become the prevailing view. Boynton v. Haggart, 120 Fed. Rep. 819. If this form of deed affects at all the rights of the purchaser, it should be only to direct the attention of the jury to the question of notice or good faith in purchasing. Cf. Mansfield v. Dyer, 131 Mass. 200.

EASEMENTS EXTINGUISHMENT SUSPENSION BECAUSE OF MISUSER. A way appurtenant to certain premises was being used for the benefit of adjoining land in such manner that it was impossible to separate the lawful from the unlawful user. Held, that the easement is not extinguished, but that the defendant and its agents will be enjoined from using the easement and from extending invitation or furnishing occasion to tenants or others to use it, until the wrongful user is made impossible. McCul lough v. Broad Exchange Co., 92 N. Y. Supp. 533. See NOTES, p. 608.

ESTOPPEL ESTOPPEL IN PAIS - STANDING BY WHILE IMPROVEMENTS ARE MADE ON LAND. The defendant obtained a deed of certain land from a stranger to the title. The true owner, who learned of this transaction within ten days, stood by in silence for three years while the defendant made improvements on the land, and then brought action to quiet title. Held, that the plaintiff is estopped to deny the defendant's title. Baillarge v. Clark, 79 Pac. Rep. 268 (Cal.).

It is generally accepted law that where an owner of chattels or land stands by and allows another to pay value to a stranger under the belief that he is acquiring title the owner will be estopped to assert his right. Pickard v. Sears and Barrett, 6 Ad. & El. 469; Chapman v. Chapman and Gansammer, 59 Pa. St. 214. The justice of this rule is obvious, for if the price paid for the land is adequate, the buyer's gain by the estoppel will be equal to his loss by the owner's neglect. A more questionable rule is applied in the principal case. There the damage caused by the owner's carelessness was the value of the improvements only, for he did not stand by during the pseudo sale; but the gain to the buyer by the estoppel was the value of the land as well as of the improvements. As these particular improvements were in the form of a railroad bed, the plaintiff could not have been allowed to recover on condition that he pay for them; but the same result has been reached in the case of an ordinary house. Green v. Smith, 57 Vt. 268. Such a result seems unduly severe.

FIXTURES RAILS OF STREET RAILWAY AS FIXTURES.-Held, that rails affixed to the soil of a public street by an electric railway company are personalty. Lorain Steel Co. v. Norfolk, etc., Ry. Co., 73 N. E. Rep. 646 (Mass.). See NOTES, p. 610.

ILLEGAL CONTRACTS - PUBLIC POLICY - CONTRACT TO CONVEY ALL AFTERACQUIRED PROPERTY. - As part of the consideration for admission into the plaintiff institution, the defendant agreed to convey to it all property that he might afterwards acquire. The plaintiff reserved the right to require the defendant's removal, if he disobeyed the rules of the institution or if he became insane. Held, that the contract is unenforceable as against public policy. Baltimore, etc., Homes v. Pierce, 60 Atl. Rep. 277 (Md.).

The assignment of a contingent interest or mere expectancy will be given effect in equity, not as a grant but as a contract, if fairly made and not against public policy. McDonald v. McDonald, 5 Jones Eq. (N. C.) 211; Stover v. Eycleshimer, 46 Barb. (N. Y.) 84. The only ground, then, for refusing damages at law in the principal case, there being good consideration and no fraud, is that of public policy. This entails a balancing of opposing considerations, the relative importance of which may well be the subject of difference of opinion. On the whole, however, it would seem that the possibility of hardship to this defendant was of minor importance as against the desirability of maintaining freedom of contract; and that, as the plaintiff was a charitable institution for aged people, the possibility of the defendant's becoming a public charge through removal, after having conveyed property subsequently acquired, was counterbalanced by the probability of his becoming a public charge unless admitted. Notwithstanding the view taken by the court, therefore, it may fairly be contended that the public welfare would be subserved rather than injured by the enforcement of such contracts.

LEGACIES-LAPSED BEQUESTS-APPLICATION OF STATUTE PREVENTING LAPSE. A statute provided that "whenever any estate shall be bequeathed to a child of the testator, and such child shall die during the lifetime of the testator, leaving a child who shall survive such testator, such legacy shall not lapse, but the property so devised shall vest in the surviving child of the legatee." A testator directed his executor to pay "five hundred dollars to each of my children." Held, that the issue of a son known by the testator to have died before the execution of the will are entitled to five hundred dollars. Pimel v. Betjemann, 99 N. Y. App. Div. 559.

Under this statute it has been held that the issue of a son specially named in the will, who was dead when the will was made, would take. Barnes v. Huson, 60 Barb. (N. Y.) 598. And under a similar statute the same result was reached on those facts, even though the testator knew that the child was dead when the will was executed. Barkworth v. Young, 4 Drewry 1. The reason for these decisions is that the testator probably intended to benefit the estate of persons specifically named. Mower v. Orr, 7 Hare 473. The rights of the issue under the statute are, however, substitutionary, and where, as in the principal case, the father was not specially named it is difficult to see how there was any gift intended for him in respect to which his issue may be substituted. The decision is opposed to the only similar case found, and seems antagonistic in principle to the rule of construction adopted in those cases where, independently of statute, the testator attempts to give the issue their deceased parents' share by way of substitution. Howland v. Slade, 155 Mass. 415; In re Hotchkiss's Trusts, L. R. 8 Eq. 643.

LIMITATION OF ACTIONS - IGNORANCE OR FRAUD FRAUDULENT CONCEALMENT OF CAUSE OF ACTION. The Wisconsin statute of limitations excepted from its scope certain actions based on fraud until the discovery by the aggrieved party of the facts constituting the fraud. To a plea of this statute the plaintiff replied that the defendant had fraudulently concealed the cause of action. Held, that since the action does not come within the excepted class, it is barred. Pietsch v. Milbrath, 102 N. W. Rep. 342 (Wis.).

În construing statutes of limitations containing no exemption clauses, some courts have been inclined to deny the defense to one who has concealed the existence of the plaintiff's cause of action for the statutory period. Cf. First, etc., Corporation v. Field, 3 Mass. 201. Several of these decisions, however, may perhaps be explained on the ground that in their jurisdictions there were no equity courts to relieve the plaintiff against its effect. And the better opinion certainly holds that no exception can be read into such a statute. Board, etc., of Somerset v. Veghte, 44 N. J. Law, 509. When, as in the present case, the legislature has provided that causes of action based upon fraud, which have been concealed, shall not be deemed to have accrued until discovered, it would seem clear that according to a well recognized canon of statutory construction causes of action not based on fraud should not be entitled to the same exemption. See Amy v. City of Watertown, 22 Fed. Rep. 418, 420. The present case, therefore, seems preferable to a contrary decision reached under a similar statute in Iowa. Cf. District, etc., of Boomer v. French, 40 Ia. 601.

PRIORITY

MORTGAGES RIGHT OF PRIORITY OVER THE CORPORATE MORTGAGE. The petitioner sold railway ties to a quasi-public corporation one month prior to the appointment of a receiver. Held, that the petitioner's claim is not preferred over a prior mortgage. Gregg v. Metropolitan Trust Co., 25 Sup. Ct. Rep. 415. See NOTES, p. 605.

NOTICE-CONSTRUCTIVE NOTICE - PURCHASER FROM DISSEISOR HAS NOTICE of Deed tO DISSEISEE. A disseisor held land for the statutory period and sold to one without actual or record notice of the deed to the disseisee. Held, that the buyer has constructive notice of recitals in that deed. Re Nesbitt and Potts' Contract, 53 W. R. 297 (Eng., Ch. D.).

Where a purchaser cannot make out title except by a deed which leads to another fact, he is presumed to have knowledge of that fact. Patman v. Harland, 17 Ch. D. 353, 355; Van Doren v. Robinson, 16 N. J. Eq. 256, 261. Title by adverse possession is a new title not derived from the disseisee. Tichborne v. Weir, 67 L. T. R. 735. Nevertheless the estate acquired is limited in extent by the estate to which it was adverse. If, for example, that was a life estate, the disseisor's estate can be only pur autre vie, for as it was never adverse to the remainder it could not extinguish it. Moore v. Luce, 29 Pa. St. 260. It follows that in no case can the buyer from the disseisor establish absolute title without referring to the deed to the disseisee to find his interest. Therefore, although no application of the general rule has been found except to deeds through which title is actually derived, yet as the basis of it is not derivation but reasonable proof of title, it seems logically to apply to the case in hand, subject to qualification where access to the deed is practically impossible. See Patman v. Harland, 17 Ch. D. 353, 356.

PERPETUITIES RULE AGAINST A POSSIBILITY ON A POSSIBILITY. - A testatrix devised realty to trustees and their heirs in trust to pay the income to her children and the survivor for life, and then to their children for lives. To the survivor of the latter she devised the property in tail. Held, that the rule against perpetuities applies to

legal contingent remainders and so makes the gift in tail void. In re Ashforth's Trusts, 21 T. L. R. 329 (Eng., Ch. D.).

This decision, though by a single judge, may well settle the English law on the point. For a discussion of the question, approving the conclusion of this case, see 16 HARV. L. REV. 294.

PHYSICIANS AND SURGEONS NECESSITY OF PATIENT'S CONSENT TO OPERATION. A surgeon, by telling his patient that a very slight operation was necessary, induced her to take ether, and removed her uterus. Held, that the patient may recover exemplary damages. Pratt v. Davis, 37 Chic. Leg. N. 213 (Ill., App. Ct., First Dist., 1905).

It is usually said that a surgeon must obtain the patient's consent before performing an operation; and it seems clear that such an act, being a battery, requires justification. It is sometimes contended, however, that a surgeon may be justified by various circumstances other than the acquiescence of the patient; and an English case has been found which, although decided upon the ground of implied consent, can hardly be supported on that basis. Cf. Beatty v. Cullingworth, 10 HARV. L. REV. 376. This court is clearly disinclined to permit surgeons to remove an organ from the body without the patient's actual concurrence; and in view of the serious interference with the person which such an act involves, this rule should be applied wherever consent could possibly have been obtained. However, if in order to save life an operation must be performed before consent can be obtained, practical necessity would seem to justify the surgeon in acting; and the jury should be allowed to decide whether he could fairly assume that the plaintiff would have consented.

PLEDGES - WRONGFUL RE-Pledge - TroVER BY PLEDGOR WITHOUT TENDER. Semble, that a pledgee who wrongfully sells or re-pledges is not liable to his pledgor in trover without a tender of the debt. Ames v. Sutherland, 5 Ont. W. Rep. 328. See NOTES, p. 610.

DENCE.

PRESUMPTIONS NATURE AND Scope- RELATION OF PRESUMPTIONS TO EVIA guardian was made a beneficiary under the will of his ward. Held, that the consequent presumption of undue influence not only places upon the guardian the burden of proof, but should be weighed as evidence by the jury. In re Cowdry's Will, 60 Atl. Rep. 141 (Vt.).

The court considers the views of Professor Thayer upon the subject of presumptions, but prefers to follow what seems to be the trend of authority in Vermont. A case in Connecticut, where the court reached a different conclusion, was noted in 18 Harv. L. REV. 546.

RESCISSION-RESCISSION FOR MISTAKE - UNILATERAL MISTAKE. — The plaintiff by mistake put in a lower bid for a contract than he had intended making. The defendant accepted the bid, without notice of the mistake. Held, that equity will rescind the contract. Board, etc., of Indianapolis v. Bender, 72 N. E. Rep. 154 (Ind., App. Ct.).

Equity will give rescission for a unilateral mistake against a donee. Andrews v. Andrews, 12 Ind. 348. In an analogous case, rescission has been granted of a conveyance in which by a unilateral mistake the grantee is getting what he did not expect, and what the grantor clearly did not mean to convey. Brown v. Lamphear, 35 Vt. 252. Such relief may also be had where the defendant in accepting an offer or conveyance knowingly took advantage of the plaintiff's error. Garrard v. Frankel, 30 Beav. 445. But with these exceptions, the great weight of authority is that equity will not give rescission for a mere unilateral mistake. Moffett, etc., Co. v. City of Rochester, 91 Fed. Rep. 28; contra, Harris v. Pepperell, L. R. 5 Eq. 1 (semble). Much may be said in favor of the exercise of the jurisdiction to rectify mistakes in a case where nothing has been done under a hard bargain which the plaintiff did not intend to make: but the difficulty of deciding what is a sufficiently damaging mistake, and the fact that a door would be opened to the admission of all manner of excuses for improvident contracts, as a matter of policy, perhaps justify a denial of relief.

RESTRAINT of Trade - STATE ANTI-TRUST LEGISLATION-CONSTRUCTION. — A statute provided that a contract between two or more corporations restraining_competition in business or placing the management of the affairs of the corporations in the power of any persons other than their proper agents should be unlawful. Several railroad companies formed a car service association for the purpose of insuring impartial assessment of demurrage. To this end certain rules were adopted and a manager was appointed to attend to their proper enforcement. Held, that upon a proper con