other than that of the matrimonial domicile or in a state where both husband and wife have obtained a new domicile, a fortiori would it seem to obtain in cases of service by publication on defendants non-resident in the state where suit is brought.

Another interesting question suggested by the New Jersey case is what conclusiveness, even if a decree where there is voluntary appearance is protected by the faith and credit clause, is there as to a finding of facts constituting jurisdiction so far as bona fide residence is concerned.

The New Jersey Court speaks as follows on this: "It has become a common practice in the eastern states, among incompatible spouses, to arrange for a divorce without scandal, taking advantage of the laws of some of the western states which seem to foster the divorce industry for the benefit of their legal practitioners. The scheme is a very simple one. One spouse goes to a western state, Nevada for instance, stays six months at a hotel, perhaps making frequent visits back to the east, and then institutes a suit for divorce in Nevada. The other spouse, the defendant, making no pretense of changing his or her domicile from the eastern state, retains a Reno lawyer who enters an appearance and files an answer, and thus makes a show of defense. The trial often is a sham. The divorce is granted. The plaintiff spouse returns immediately to his or her eastern domicile, and both spouses, the mock combatants, assume that under the full faith and credit clause their status as husband and wife in their eastern domicile has been abolished. In my judgment the state of New Jersey will not recognize such a proceeding as having any validity in her territory where one of her residents, subject to her power and governed by her laws, is one of the spouses in the affair."

A statement, extreme in its facts, really can make no difference, if the Nevada ruling on jurisdiction is to be respected at all. If respect for it may be denied, this could be in a close case as well as in another.

NOTES OF IMPORTANT DECISIONS.

GARNISHMENT-NON-RESIDENT DEBTOR NOT BOUND BY JUDGMENT IN INTERPLEADER PROCEEDING.-It was held by Supreme Court that, though garnishment may issue upon a judgment and a fund in the hands of a garnishee may be subjected to the judgment without personal service being made on defendant, yet if the garnishee adopts the plan of filing an interpleader to ascertain, to which of two claimants the fund belongs and the court finds that it belongs to another than the judgment defendant, this finding is in no way binding on that defendant. N. Y. Life Ins. Co. v. Dunlevy, 36 Sup. Ct. 613.

It was said by McReynolds, J., speaking for a unanimous court, that: "Beyond doubt, without the necessity of further personal service of process upon Mrs. Dunlevy, the court of common pleas at Pittsburgh had ample power through garnishment proceedings to inquire whether she held a valid claim against the insurance company, and, if found to exist, then to condemn and appropriate it so far as necessary to discharge the original judgment." Then there is cited Railroad v. Sturm 174 U. S. 710, which holds the situs of a debt is where the debtor may be.

"But," says the court, "the interpleader instituted by the company was an altogether different matter. This was an attempt to bring about a final and conclusive adjudication of her personal rights-not merely to discover property and apply it to debts. And unless in contemplation of law she was before the court and required to respond to that issue, its orders and judgments in respect thereto were not binding on her."

We are wholly unable to follow the court in this distinction. In this case the interpleader notified Mrs. Dunlevy to show if she could what title she had to the fund, the other claimant being regularly summoned. If the garnishee had answered denying he had any money belonging to her, his answer could have been traversed and if found untrue this would have bound her as to any part recovered by plaintiff. How is the matter made materially different when he reports he has a fund but he does not know to whom it belongs and asks the court to determine the question? Was she not there in contemplation of law as well in one case as the other?

Or suppose the garnishee had answered he had funds in his hands and judgment was awarded plaintiff therefrom. Certainly she then would be bound. Shall the garnishee

It was claimed by the railroad company that the constitutional limitation of the Seventh Amendment for a unanimous jury in federal courts "applies to Congress so as to prevent that body from creating a court and giving it power to act free from the restraint of the amendment, it must also apply, unless the substance is to be disregarded and the shadow be made controlling, to the power of Congress to create a right and leave the power to enforce it in a forum to which the constitutional limitation is not applicable."

As to this contention, the Chief Justice says: "But this again enlarges the Amendment by causing it not merely to put a limitation upon the power of Congress as to the courts, constitutional or otherwise, which it deems fit to create, but to engraft upon the power of Congress a limitation as to every right of every character and nature which it may create, or, what is equivalent thereto, to cast upon Congress the duty of subjecting every right created by it to a limitation that such right shall not be susceptible of being enforced in any court whatever whether created by Congress or not, unless the court enforcing the right becomes bound by the restriction which the Amendment establishes."

The court goes on to say that the contention applies only, as urged, to courts authorized to enforce purely federal rights as being pro hac rice federal courts. Then he says: "If this principle were well founded, the converse would also be true and both federal and state courts

would, by fluctuating hybridization, be bereft of all real, independent existence."

We must confess, the Chief Justice has us in the air in his argumentation, and all the while, we are impressed with the thought, that the constitution was regarding the right to have facts decided by a common law jury as a fundamental right, certainly to be preserved as to every right secured by federal law. What real difference does it make what tribunal passes upon that right, as long as it acts under federal authority?

As the case stands, a state court vested by Congress with the right to dispose of this question of fact, applies state law, and not federal law, to such disposition and in doing so violates federal law. But for Congress the state courts could do nothing whatever and yet in doing anything they follow state law.

BY OR

JURISDICTION-ACTIONS AGAINST FEDERAL CORPORATIONS.-By Act of Congress of Jan. 28, 1915, it is provided that "no court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an Act of Congress." In applying this act, by the Supreme Court, to a suit by corporation whose charter antedated the Act of Congress, contention was that all that was "intended" by the law was to eliminate the mere creation of a railroad corporation under an Act of Congress as a ground for regarding the suit as arising under the laws of the United States" was rejected. Bankers' Trust Co. v. Texas & Pacific Ry. Co., 36 Sup. Ct. 569.

the

The court says as to that contention that: "In this there is an evident misapprehension of what constitutes incorporation, as also the real basis of the jurisdiction affected. A corporation is never merely created. Being artificial, possessing no faculties or powers save such as are conferred by law, and having in legal contemplation no existence apart from them, its incorporation consists in giving it individuality and endowing it with faculties and powers which it is to possess. It is upon this theory that the decisions have proceeded. The ruling has been that a suit by or against a federal corporation arises under the law of the United States, not merely because the corporation owes its creation to an Act of Congress, but because it derives all of its capacities, faculties and powers from the same source."

It is said that by the Act of Jan., 1915, the fact of the derivation of power from a federal source becomes "a negligible factor" for jurisdictional purposes and a statutory court with

no jurisdiction other than that expressly conferred has no jurisdiction as to a federal corporation as such.

The court also says that such a corporation being merely a citizen of the United States and not a citizen of any state, a suit by or against it cannot involve a controversy between citizens of different states. Possibly this shutting the door of the Federal courts against congressional corporations may make some of them wish to surrender their charters. At all events, it tends to show how utterly insufficient should, in fact, be deemed affidavits for removal filed by many foreign corporations. If a federal corporation presumptively may obtain a fair trial in a state court, a fortiori may it be supposed there is no need for a corporation of another state to flee to federal courts for protection.

RECENT DECISIONS IN THE BRITISH COURTS.

It is a feature of English company law that it permits companies to refuse to enter on their share registers any notice of a trust; the names of the trustees are entered but they are regarded as holding in their own individual right and not as for any third party or in any fiduciary capacity. A very important decision (Makereth and another v. Wigan Coal & Iron Co. [The Times of 18 May, 1916, and Solicitors' Journal, Vol. 60, page 5081), has just been issued on the question what effect this has on a company's right of lien on shares which in the knowledge of its officials are trust property, but as to which there is no marking in the register indicating any trust.

The facts of the case need not be detailed at length. The court was amply satisfied on the evidence that the shares in question belonged to trustees for persons interested under a will; that in 1910 the company had notice of that fact; and that in 1912, when one of the trustees gave a charge to the company on the shares for his personal debt, it had not escaped the memory of the company's officers, that the shares were the property of trustees. and consequently that the charger's interest in them was one of trust and not of absolute property.

As regards a private person, there would be no question but that if he, with the same knowledge that the defendant company had, took a charge on a trust estate for a debt of one of the trustees he would take with notice of a breach of trust, and therefore could not set up the charge against the beneficiaries.

But then the question here was, whether the company could be held to be in a better position than a private individual, so that, notwithstanding its knowledge that the shares were held in trust, it was able to assert against the beneficiaries, a lien or charge on the shares for the private debt of one of the trustees.

In giving judgment, Mr. Justice Peterson was not much assisted by any decision of the English courts. In several cases it had been stated generally that a company need not take notice of trusts, but these dicta had reference to the obligation of companies in registering transfers. In other cases again general observations had been made that companies were liable to be affected with notice of the interest of a third party. The only decision precisely in point, however, was one by the Court of Appeal in Ireland, Reardon v. The Provincial Bank of Ireland (1896) 1 Ir. Rep. 532. With the judgment in that case, Mr. Justice Peterson agreed and held that neither by the statute nor by its articles was the company protected, in face of the notice that the shareholder was not the beneficial owner of the shares, and that accordingly it was wrong in asserting a lien against the beneficiaries.

The common law rule that executory contracts entered into before the war are avoided on the outbreak of hostilities; while executed pre-war contracts (i. e., where one party has received the whole consideration but still has to perform his promise) are suspended during hostilities, though apparently simple, is prov ing very difficult of application, for commercial contracts are often complex things, making it hard to say whether the war has put an end to them or merely postponed their fulfillment.

There is thus always the possibility that a contract entered into with an enemy prior to the war is not dissolved but only suspended, and that on the conclusion of hostilities a claim for performance or, failing that, damages for breach might be made. The prolonged duration of the war has accentuated the difficulty; therefore, Parliament has thought it necessary to give some means of guidance to those involved in such contracts, and the Legal Proceedings against Enemies Act, 1915, enables British subjects to apply to the court for a declaration whether or not any contract with an enemy to which the applicant is a party has been dissolved or not. If the court declares the contract at an end, then the British contracting party is clear of all future claims; if the decision is that the contract still subsists, being suspended till the end of the war, then at

any rate he knows how he stands and can arrange his affairs accordingly.

This procedure, in addition to its practical helpfulness to business men, will obviously have the effect of enabling the courts to develop the principles of the law as to the dissolution or subsistence of enemy contracts now, instead of having to do so at the end of the war. It is important to see how the judges are viewing the matter, and we refer to two somewhat leading cases for that purpose. In Zinc Corporation, Lim. v. Hirsch (1916) 1 K. B. 541, an English company had, some years prior to the commencement of the war, entered into a contract with certain persons in

Germany to sell to the latter the whole of the English company's production of zinc concentrates at their mine in Australia. The period covered by the contract was ten years, and the amounts of the yearly supplies were indicated. The contract provided that in the event of force majeure, or any other cause beyond the control of the parties, preventing or delaying the carrying out of the contract, the agreement

of any such disability. The Court of Appeal did not think it necessary to state expressly whether or not this suspension clause covered the contingency of war; but held that, even assuming it did, the effect of the prohibition against the British company disposing of the materials to any other person would be to restrain the company from using its resources for the benefit of the nation, and on that ground alone the contract became illegal as from the commencement of the war, and was therefore dissolved as from that time. Commenting on that decision a writer in The Law Times points out that the test of whether or not the continuance of a contract is prejudicial to the interests of the state may, in the event of the prolongation of the war, lead to the dissolution of every contract between British subjects and alien enemies, for every such contract may be said, in a sense, to be prejudicial to the

interests of the state.

Another judgment also embodying a comprehensive principle is that of Mr. Justice Rowlatt in Distington Haematite Iron Co. (1916) W. N. 117. He held that a contract is dissolved if a postponement of performance involves the alteration of the contract itself. That ruling should appeal to the business man as being concise and practical. In other words, unless the contract can subsist in every particular notwithstanding suspension, then it is further dissolved. Here again the effects of the deci sion are very far-reaching. It is difficult even to imagine a contract that could, in these days

and it is this combination that renders it extremely dangerous to other travelers in the highways when it is negligently operated, or when it gets beyond the complete control of its driver.

The automobile is more likely to skid to a dangerous extent on a smooth or slick. pavement than any other vehicle. This characteristic is well known to all users of the machine, and must be taken into consideration in exercising reasonable care for the safety of others. When the condition of streets is such that automobiles are likely to skid, thereby becoming a menace to other travelers, owners thereof must take reasonable precautions to guard against inflicting injury in this manner, by adopting appliances that have proved practicable as a preventive of skidding. Failure to exercise reasonable care in this respect may charge an owner with negligence, although at the time of an accident he may make use of every facility at hand, and do everything in his power to avoid inflicting injury.

These precautions are required to be taken only in view of the condition of the highways at the time, and conditions that ordinarily arise in the operation of automobiles on highways in that condition. An

owner would not be liable for failure to guard against conditions that he could not reasonably foresee.

"If the jury should find that in consequence of the size of the machine, the condition of the pavement and the motive power used, the machine could not be controlled so as to prevent an accident of this kind, there was a question for the jury as to the defendant's negligence. If they should find that it was negligence for the defendant to use such a machine in the prosecution of its business so that a person lawfully on the sidewalk is mowed down by it in consequence of its operation which could not, by the exercise of due diligence, be so regulated that it could be kept from the sidewalk, causing injury to people there, the defendant would be liable."1

was

Turning Quickly in Emergency. The plaintiff was driving her automobile, at about 6:30 o'clock on an October evening, about three feet from the curb on the right hand side, and was driving in a careful and lawful manner, when her machine struck by an automobile of defendant, automobile of defendant, driven by its chauffeur. There was a verdict for defendant, and plaintiff appealed, alleging error in the trial court's refusal to direct a verdict in her favor. It appeared from the evidence, however, that the defendant's automobile automobile was being driven along the right hand side of the street, in the opposite direction from that in which plaintiff was driving; that it was about six feet from the right curb, and going 10 to 15 miles an hour; that an electric car, without lights and without warning, backed out of an alley in front of defendant's machine; that defendant's chauffeur saw the car suddenly loom up ahead, applied his brakes and attempted to make a quick turn to the left to go around the rear of the car; that the pavement was wet and slippery because of the weather, and the rear wheels of his automobile skidded to the right, striking the right rear wheel of the electric car, at substantially the same moment the front of de

(1) Philpot v. Fifth Avenue Coach Co., 142 App. Div. (N. Y.) 811 (1911).

fendant's car collided with plaintiff's machine. The verdict was sustained, the court holding that the statute requiring all vehicles to keep to the right of the center of the street, was not applicable to these facts, and, consequently, that defendant had not violated the law of the road.2

Defendant's motor omnibus was proceedceeding along a road, which was in a greasy condition, at a rate of 8 or 9 miles an hour. Plaintiff, who was a small boy, and another boy, stepped off the pavement into the street at a distance of 4 or 5 feet in front of the omnibus. In order to avoid running over the boy the driver steered the omnibus to one side, threw off the power, applied the brakes and locked the rear wheels, with the result that the omnibus skidded, and the side thereof struck the plaintiff. The jury found that there was no negligence on the part of the driver, but disagreed on the question whether or not the omnibus constituted a nuisance.

In this respect it was said by Vaughan Williams, L. J.: "There is no evidence in this case to lead us to suppose that there would have been any skidding by this motor omnibus in ordinary circumstances or that the skidding was due to the construction of the omnibus, or to its user upon a greasy road. The boys ran into the road. in front of the omnibus, and the driver, in order to save the life of the plaintiff, had to put on the brakes suddenly and violentiy. The skidding was entirely the result of that violent application of the brakes, which would have been entirely unnecessary but for the position in which the boy had placed himself. It was only in order to avoid injuring the plaintiff that the driver put on the brakes. In these circumstances it seems to me that there was no evidence that this omnibus was a nuisance, and that the question ought not to have been left to the jury."

(2) Chase v. Tingdale Bros., 127 Minn. 401 (1914).

(3) Parker v. London General Omnibus Co.. 101 L. T. 623, 74 J. P. 20, 26 T. L. 18, 53 Sol. Jo. 867, 7 L. G. R. 1111 (1909), aff'g 100 L. T. 409, 73 J. P. 283, 25 T. L. 429.