Laws, 1900, c. 742.) In 1902 the defendant sought a reduction in the amount. Held, that in so far as the statute is retroactive it violates the constitutional provision against depriving a person of property without due process of law. Livingston v. Livingston, 173 N. Y. 377. In a decree for separation the basis of the right to permanent alimony is only the common-law right of the wife to support, for the decree does not terminate the marriage relation and the incidental property rights are not affected. Taylor v. Taylor, 93 N. C. 418. Hence in the ecclesiastical courts the amount might be varied as the circumstances of the parties required. Cox v. Cox, 3 Add. 276. See DeBlaquiere v. De Blaquiere, 3 Hag. Ecc. 322, 329. Such a claim to alimony would not seem to constitute a vested right. Absolute divorce, on the other hand, and the rights incidental to it are purely statutory. See I BL. COM. 441; 2 BISHOP, MAR. DIV. & SEP. 1039. As it terminates the marriage relation the property rights incidental to that relation are entirely destroyed. Barrett v. Failing, 111 U. S. 523. Hence in this case the basis of the decree for permanent alimony is the loss of these property rights as well as the right to support. Calame v. Calame, 24 N. J. Eq. 440. Such a decree, like ordinary judgments, cannot subsequently be varied by the court unless at the time of divorce this power is conferred by statute or reserved in the final decree. Walker v. Walker, 155 N. Y. 77; Howell v. Howell, 104 Cal. 45. In the principal case, accordingly, it would seem that the wife's interest was vested, and therefore not subject to subsequent statutory restriction. CONSTITUTIONAL LAW EMINENT DOMAIN RIGHTS OF LIGHT AND AIR INFRINGED BY ELEVATED TRAINS. - The defendant was directed by statute (N. Y. Laws, 1892, c. 339) to lay its tracks upon an elevated structure constructed for it by the state in place of an open subway which it had previously used. Both the subway and the viaduct were in a public street the fee of which belonged to the city. The plaintiff, an abutting owner, brought action for injury to his rights of light, air, and access, from the running of the elevated trains. Held, that the plaintiff has no cause of action. Muhlkes v. N. Y. & Harlem R. R. Co., 173 N. Y. 549. Bartlett and Van, JJ., dissenting. For a discussion of the principles involved, see 15 HARV. L. REV. 665. CONSTITUTIONAL LAW INTERSTATE COMMERCE - LOTTERY TICKETS. — The plaintiff was indicted for causing lottery tickets to be carried from Texas into California in violation of the Act of Congress of 1895. He applied for a writ of habeas corpus on the ground that the Act is unconstitutional. Held, that the Act is constitutional. Champion v. Ames, 23 Sup. Ct. Rep. 321. See NOTES, p. 508. CONSTITUTIONAL LAW-RESTRAINT OF INTERState CommercE- INJUNCTION AGAINST BEEF TRUST. A number of dealers, controlling sixty per cent of the interstate commerce in fresh meats in the United States, entered into an agreement restraining their bidding against each other for live stock, much of which was sent from other states than that in which the bidding was done. They further agreed to regulate among themselves the prices of meat to be sold in other states, and the charges for the cartage and delivery of it, and made arrangements with common carriers for unfair discrimination in rates. To a bill for a preliminary injunction, filed under the Sherman Anti-Trust Law, the defendants interposed a demurrer. Held, that the injunction should be granted. United States v. Swift & Co., 35 Chi. L. News 236, decided Feb. 18, 1903, Circ. Ct., N. D. Ill. It has been held that a mere combination of sugar refiners, with no agreement as to the dispositions of products, does not affect interstate commerce. United States v. Knight Co., 156 U. S. 7. But when there is an agreement by which free competition in the sale of the products in the several states is restrained, as in the principal case, this is within the federal jurisdiction. Addyston Pipe and Steel Co. v. United States, 175 U. S. 211. There are dicta that the Sherman Act applies to all contracts directly restraining inter-state commerce in any degree, whether the common law would regard them as unreasonable and void or not. See United States v. Trans-Missouri Freight Assn., 166 U. S. 290. But no contract clearly legal at common law has yet been held to violate the Sherman Act, and there may be some doubt whether the courts would so hold. The Texas courts refuse to apply a similar local statute to a case of reasonable restraint. Welch v. Phelps, etc., Windmill Co., 89 Tex. 653. Even at common law, however, a combination to regulate prices, as in the principal cases, by dealers largely controlling the market, is void. Central Ohio Salt Co. v. Guthrie, 35 Óh. St. 666. - ΤΑΧΑΤΙΟΝ CONSTITUTIONAL LAW STATE INHERITANCE TAX ON NONRESIDENT'S CHOSES IN ACTION. - The plaintiff's testator, a resident of Illinois, had a deposit in a New York bank and credits against New York citizens. An in heritance tax on their devolution was laid under a New York statute. (3 Rev. Stat. Codes & Gen. Laws, 3d ed. 1901, p. 3592.) Held, that the statute is constitutional. Blackstone v. Miller, 23 Sup. Ct. Rep. 277. It is well settled that inheritance taxes on tangible chattels, both at the domicile of the owner and at their situs, are constitutional. Callahan v. Woodbridge, 171 Mass. 595; see Eidman v. Martinez, 184 U. S. 578, 586. If, then, the deposit and credits are to be regarded as chattels in New York, the decision is correct. A dictum in a former case considered all choses in action as taxable only at the domicile of the creditor. State Tax on Foreign-Held Bonds, 15 Wall. (U. S. Sup. Ct.) 300. This dictum has, however, been questioned, and to-day the authority of the case appears to be reduced to the exact point decided, that the situs of specialty obligations is the situs of the instrument. See New Orleans v. Stempel, 175 U. S. 309, 319. Thus in garnishment proceedings a debt may be reached if there is jurisdiction over the debtor. Chicago R. I. & P. R. R. Co. v. Sturm, 174 U. S. 710. It has already been decided that a bank deposit of a nonresident is taxable at the situs of the bank. New Orleans v. Stempel, supra. The square statement in the principal case that jurisdiction over the debtor gives the right to tax a simple debt has at least the merit of furnishing a definite rule in a subject in which there has been much confusion. See 15 HARV. L. REV. 680. CONTRACTS-OFFER AND ACCEPTANCE STOPPAGE BY TELEGRAM OF LETTER OF ACCEPTANCE. The person to whom an offer for the sale of land was made, mailed a letter of acceptance. Changing his mind, he recalled the letter by telegram. Held, that a binding contract was made by the mailing of the letter. Scottish-American Mortg. Co. v. Davis, 72 S. W. Rep. 217 (Tex., Civ. App.). For a discussion of the principles involved, see 7 HARV. L. REV. 301. CONTRACTS-Promise for Benefit of THIRD PARTY - Release BY PROMISEE. -The defendant contracted with X to pay the plaintiff a sum of money. X later released the defendant from his obligation, the plaintiff having had no notice of the original contract. Held, that the release is no bar to an action at law by the plaintiff on the contract. Tweeddale v. Tweeddale, 93 N. W. Rep. 440 (Wis.). For a discussion of the principles involved, see 15 HARV. L. REV. 799. CONTRACTS REPUDIATION DOUBTS OF SOLVENCY. The plaintiff agreed to ship the defendant goods on June 1, payment to be made November 10. A part of the goods were so shipped, but the plaintiff, doubting the solvency of the defendant, refused to send the residue, although the defendant authorized shipment with draft attached to the bill of lading. In an action to recover the price of the goods sent, the defendant sought to set off his damages from non-receipt of the residue. Held, that instructions by the lower court allowing the plaintiff to repudiate the contract if he actually believed the defendant insolvent are erroneous. Kavanaugh Mfg. Co. v. Rosen, 92 N. W. Rep. 788 (Mich.). In general, where the acts of one party to a contract have made it reasonably certain he will not perform, the other party is said to be excused from performance. See Ziehen v. Smith, 148 N. Y. 558. But just what acts are sufficient is not clearly settled. Actual insolvency may not be, for the trustee in bankruptcy has the right, and may desire, to perform the contract. Gibson v. Carruthers, 8 M. & W. 333. It would not seem unreasonable to throw on the trustee the burden of giving notice of intent to perform, although the law appears to be contrary. Gibson v. Carruthers, supra. If this be law with regard to actual bankruptcy, it would seem a fortiori that in the absence of any overt act of insolvency mere doubt, however reasonable, as to the financial condition of the other party would not justify refusal to perform. This is the decision in Publishing Co. v. Butler, 159 Mass. 517. It has been held in cases of actual insolvency that the seller may refuse to deliver except for cash, although the contract provides for delivery on credit. Ex parte Chalmers, L. R. 8 Ch. App. 289. But this seems never to have been extended to cases of mere belief in the buyer's insolvency. CONTRACTS - Statute of LIMITATIONS - ACKNOWLEDGMEnt of Debt. — Held, that mere acknowledgment of indebtedness is insufficient to remove the bar of the statute of limitations. Wood v. Merrietta, 71 Pac. Rep. 579 (Kan.); Lambert v. Doyle, 43 S. E. Rep. 416 (Ga.). See Notes, p. 517. An arrange CORPORATIONS INTERCHANGE OF STOCK MUTUAL CONTROL. ment was made between two corporations through which, by the sale of the directors' personal shares in the first corporation and the issue of stock by the second, each corporation would own a majority of the stock of the other. It was then provided that the annual meetings of the first corporation should be held before those of the second, so that the directors of the former should always elect those of the latter, who in turn would re-elect the old board of the former. Minority stockholders of the first corporation sue to restrain the execution of the plan. Held, that the injunction will be granted. Robotham v. Prudential Ins. Co., 53 Atl Rep. 842 (N. J., Ch.). See NOTES, p. 510. CORPORATIONS RIGHT OF STOCKHOLDER TO SUE ON BEHALF OF CORPORATION. The president, who was also director of a corporation, sold corporate property at a fraudulent price. A bill to recover the property was brought by a stockholder, who alleged inter alia that before action by the directors or corporation could be obtained, the property would be removed beyond the jurisdiction of the court. defendant demurred. Held, that the bill will lie. Teris v. Hammersmith, 66 N. E. Rep. 79 (Ind., App. Ct.). The A stockholder clearly has no legal action against a director who is damaging the corporate assets. Smith v. Hurd, 12 Met. (Mass.) 371. In equity, however, if the acts of misconduct have not been executed but are merely threatened, a stockholder should always be allowed an injunction. See I MOR. CORP. 2d ed. § 250. Where recovery for past misconduct is sought, if the corporation has power to ratify the wrongful acts, the stockholder's bill should show an attempt to move the directors and the corporation. Foss v. Harbottle, 2 Hare 461. Though theoretically this would seem unnecessary when the act is ultra vires, even then the stockholder must allege an attempt to move the corporation and its directors. Hawes v. Oakland, 104 U. S. 450. If, how ever, a stockholder can show that a request would be nugatory, or that irreparable damage would ensue before the directors and corporation could act, such application is not required. Brewer v. Boston Theatre, 104 Mass. 378. Since the allegations in the principal case seem to show that immediate action was necessary to prevent irreparable damage, the bill was properly supported. CRIMINAL LAW PROCEDURE PRIVATE EMPLOYMENT OF ASSISTANT PROSECUTOR. - Held, that an attorney employed and compensated by private parties may assist the prosecuting officer in a criminal trial. State v. Tighe, 71 Pac. Rep. 3 (Mont.). See NOTES, p. 513. DAMAGES-DUTY OF UNITED STATES TO AVOID DAMAGES — LOSS OF TREASURY NOTES BY GOVERNMENT AGENT. — The superintendent of a United States mint received certain treasury notes. The notes, while in his custody, were destroyed by fire without his fault. Action was brought by the United States on his official bond. Held, that the United States may recover the face value of the notes. Smythe et al. v. United States, 23 Sup. Ct. Rep. 279. The decision involves the holding that the government need not issue new notes to avoid damages. In general, the law requires an injured party to avoid damages so far as possible, even by affirmative acts. Pennsylvania R. R. Co. v. Washburn et al., 50 Fed. Rep. 335; I SEDG. DAM. 8th ed. § 201 et seq. No grounds of policy are apparent sufficiently strong to exempt the government from this duty, even though an act of its legislative branch might be a prerequisite. Moreover, it is not clear that substantial damage was ever sustained, especially since it is fairly arguable that title to the so-called notes was in the United States, and that, consequently, they were not outstanding obligations. Harmer v. Steele, 4 Exch. Rep. 1. Under this view, a fortiori, recovery should not be measured by the face value. It is true that these documents, whether actually in circulation as notes or not, would render the government liable to a bona fide purchaser. Worcester County Bank v. Dorchester Bank, 10 Cush. (Mass.) 488. It might, therefore, be urged that public policy forbids the custodian of such documents to raise any inquiry as to the method of loss. Where, however, the facts are undisputed, such a rule seems more harsh than public policy demands. On EQUITY FRAUD WITHOUT DAMAGE - AVOIDANCE OF DEED. - The plaintiff orally contracted with his neighbors not to sell his residence to anyone who would apply it to an objectionable use. The defendant desired to buy for such a use. the refusal of the plaintiff to sell, the defendant employed an agent who obtained a deed by fraudulently representing that he was purchasing for an unobjectionable third person. Although the plaintiff had received his own price for the land, he brought a bill to have the deed set aside for the fraud. Held, that the deed will be set aside, although no damage to the plaintiff appeared. Brett v. Cooney, 53 Atl. Rep. 729 (Conn.). See NOTES, p. 509. EQUITY INJUNCTIONS STRIKERS IN PUBLIC SERVICE COMPANIES. A railroad company sought to restrain certain labor leaders from causing a peaceful strike among its employees. Held, that a temporary injunction will be granted. Wabash R. R. Co. v. Hannahan, 56 Cent. L. J. 201, decided Mar. 3, 1903, Circ. Ct., E. D. Mo. [The injunction was dissolved April 1.- ED.] See NOTES, p. 518. EQUITY SPECIFIC PERFORMANCE - MUTUALITY OF REMEDY.A wife who had grounds for divorce from her husband and was living apart from him agreed to condone his offence and to resume marital relations in consideration of his promise to convey property to trustees for the benefit of their children. The wife returned to her husband, and on his refusal to convey the property she brought a bill for specific performance. Held, since the agreement was executed on the wife's side, there is no lack of mutuality and specific performance will be decreed. Moayon et al. v. Moayon, 72 S. W. Rep. 33 (Ky.). For a discussion of the principles involved, see 16 HARV. L. REV. 72. INTERPRETATION OF STATUTES - -TARIFF LAW RIGHTS of Defrauded VenDOR.- - An act of Congress provides that if any owner, importer, consignee, agent or other person shall attempt to smuggle merchandise into the country, it shall be forfeited. (U. S. Comp. St. 1901, p. 1895.) Under this statute the government seized diamonds which a fraudulent purchaser was attempting to smuggle into the country. Held, that the defrauded vendor cannot reclaim the diamonds from the United States. Five Hundred and Eighty-one Diamonds v. United States, 119 Fed. Rep. 556 (C. C. A., Sixth Circ.). The government cannot take free of the vendor's equity on the ground of being a bona fide purchaser. Cf. Easter v. Allen, 90 Mass. 7; BENJ. SALES, 7th ed. § 433. Accordingly, the case must be supported, if at all, because it falls within the express words of the statute. Despite this fact, previous decisions would seem to show that the harsh result reached is unnecessary. Thus, under this statute, an innocent owner does not lose property smuggled into the country by his bailee. United States v. 1150 Lbs. of Celluloid, 82 Fed. Rep. 627. Similarly, under the internal revenue laws, the government holds forfeited property subject to mechanic's liens. United States v. Distillery, etc., of McCoy, Fed. Cas. No. 14,964. The fact that a defrauded vendor's claim is merely equitable seems a distinction of little weight. Thus, when trust property was forfeited for the trustee's felony, the crown took subject to the trust. See LEWIN, TRUSTS, 9th ed. 265. It is true that in some cases, such as piracy, public policy demands that even an innocent owner should forfeit his property. United States v. Brig Malek Adhel, 2 How. (U. S. Sup. Ct.) 210. In the principal case, however, the demands of policy appear no stronger than in the case of property smuggled into the country by a bailee. JUDGMENTS- CONSTRUCTIVE NOTICE- IDEM SONANS. The defendant obtained a judgment against one Sibert which was recorded under the name of Seibert. The plaintiff having bought land from Sibert, sought an injunction restraining the defendant from selling it on execution, claiming that he had no constructive notice of the defendant's judgment against Sibert. Held, that the names being idem sonans the injunction will not be granted. Green v. Myers, 72 S. W. Rep. 128 (Mo., Ct. App.). It is generally held that if a mortgage be properly left for recording every one will be treated as having constructive notice, even though it was never actually recorded. Throckmorton v. Price, 28 Tex. 605. This seems to be based on the theory that the necessity of recording cuts down a mortgagee's common law rights. Accordingly, if he does his duty by leaving the mortgage for record, he should be protected. A judg ment, on the other hand, must be so recorded that it will be discovered by any one making a reasonable search. Etna, etc., Co. v. Hesser, 77 Ia. 381; Phillips v. McKaig, 36 Neb. 853. The explanation of this rule may be that the modern judgment lien on land has no existence as regards others than the judgment debtor unless they have either constructive or actual notice of the judgment. Cf. BLACK, JUDG. 2nd ed. §§ 398, 404. Under the rule requiring substantial correctness in recording a judgment the principle of idem sonans is important only because similarity in sound tends to cause a search under different spellings. In the principal case, however, though the names were idem sonans, the difference in spelling was so likely to mislead that a more just result would probably have been attained by requiring greater exactness. Cf. Davis v. Steeps, 87 Wis. 472. MORTGAGE EQUITABLE MORTGAGES - PRIORITIES. - A trustee of land under a resulting trust in favor of the plaintiff mortgaged the premises. The plaintiff brought suit to enforce the trust. Before adjudication, the trustee obtained a loan to discharge the mortgage, promising to execute a new mortgage to the lender. The mortgage was discharged and the agreement was executed. Thereafter the trustee, to remove the mortgage last executed, borrowed money from the defendant in this suit, executing to him a new mortgage. Later the preceding mortgage was discharged. In the pending suit, the trustee was ordered to convey the premises to the plaintiff, who now seeks to have the defendant's mortgage declared a cloud on his title. Held, that the plaintiff is entitled to the property free from the defendant's mortgage. Bigelow v Scott, 33 So. Rep. 546 (Ala.). The mortgages executed after suit was begun against the trustee were postponed to the plaintiff's equity under the doctrine of lis pendens. Nevertheless the court states that the holder of the intermediate mortgage was equitably entitled to priority. This result can be reached only on the ground that on the discharge of the earliest mortgage the legal title reverted to the trustee on a trust in favor of the man who advanced his money to remove the prior encumbrance. See Eyre v. Burmester, 10 H. L. Cas. 90; 15 HARV. L. REV. 863. It would seem that the defendant might likewise be entitled to a constructive trust of the equitable rights of the mortgagee whose debt was discharged with his advance. But since in the principal case the original equitable claimant has rightfully acquired the legal title, the decision of the court can be supported. Peacock v. Burt, 4 L. J. Ch. N. s. 33. MORTGAGES-FORFEITURE of LIEN TENDER OF PAYMENT After Default. -In Missouri, where the lien theory of mortgage obtains, a tender was made by the mortgagor of land after the day set for payment. Held, that this does not forfeit the mortgage lien, but stops the running of interest. Knollenberg v. Nixon, 72 S. W. Rep. 41 (Mo.). În jurisdictions where the English view that the mortgagee has legal title prevails, a tender after default does not destroy the mortgagee's security. Rowell v. Mitchell, 68 Me. 21. Among the lien theory jurisdictions, however, the cases are squarely in conflict upon the effect of tender. Those which hold that the mortgage is thereby destroyed treat the right as an ordinary lien. Kortwright v. Cady, 21 N. Y. 343. The cases which reach the opposite result refuse, upon grounds of hardship, to follow out the lien theory. Matthews v. Lindsay, 20 Fla. 962. The principal case establishes this latter view in Missouri. This illustrates the tendency of the courts to cling to the common law conception of mortgage when a strict analogy to liens leads to apparently undesirable results. Other instances of this tendency are the survival of the mortgagee's rights when the debt is barred by a discharge in bankruptcy or by the statute of limitations. Roberts v. Wood, 38 Wis. 60; Heyer v. Pruyss, 7 Paige (N. Y., Ch.) 465. The decision that the tender stopped the running of interest is clearly sound. Loomis v. Knox, 60 Conn. 343. PROCEDURE - Directing Verdict — INCREDIBILITY OF EVIDENCE. — In an action for libel the plaintiff, a "magnetic healer," introduced many witnesses who testified that they had been cured by his treatment. The trial judge refused to direct a verdict for the defendant. Held, that this is error since the jury could not reasonably believe witnesses swearing to what the court knew to be an impossibility. Weltman v. Bishop, 71 S. W. Rep. 167 (Mo.). See NOTES, p. 515. PROCEDURE-FEDERAL JURISDICTION CORPORATION INCORPORATED BY TWO STATES. The defendant railroad company, originally incorporated in Virginia, had also been required to incorporate in Kentucky by filing a copy of its franchise. Suit was brought against it, as a local corporation, in a Kentucky court. Held, that the action cannot be removed to a federal court. Davis' Admr. v. Chesapeake & O. R. R. Co., 70 S. W. Rep. 857 (Ky.). Where a corporation, chartered by two or more states, was a party to a suit in one of them, it seems formerly to have been regarded, for the purposes of jurisdiction, as a citizen of the state in which the suit was brought. Railway Company v. Whitton, 13 Wall. (U. S. Sup. Ct.) 270, 283; see 12 HARV. L. REV. 350. The present view appears to be that a company once incorporated by a state, remains a citizen of that state, and cannot become a citizen of another state, merely by being declared by the latter a domestic corporation. Louisville, etc., R. R. Co. v. Louisville Trust Co., 174 U. S. 552; Calvert v. Southern R. R. Co., 41 S. E. Rep. 963 (S. C.). The result of the re-incorporation, however, is admittedly the formation of a new and distinct corporation. Indianapolis, etc., Ry. Co. v. Vance, 96 U. S. 450. The principal case draws the conclusion that either corporation may be chosen, to sue or to be sued, and that upon this choice depends the question of citizenship. But this would seem to be rather a question of fact as to which corporation is involved. Any determination of this would, as a general rule, be impracticable; while to leave the matter to the option of the plaintiff, as in the principal case, seems unjust. The qualification imposed by the federal rule, upon the theory of distinct corporate existence, is, therefore, thought to be sound. |