century was it settled by positive law that the corporation must be created by sovereign power; this rule arising from considerations of political expediency and not because of any inherent quality which marked the corporate idea.

APRIL. Presumption of the Foreign Law.-ALBERT MARTIN KALES. In discussing this question the writer first calls attention to the fact that the courts do not, as a general rule, take judicial notice of what the foreign law is, nor do they presume what it is. In theory the burden of proving the foreign law is not different from that imposed in proving any other fact. Under certain circumstances, however, the court departs from this general rule and indulges in presumption. As the writer states it: "There are three possible rules which indicate when the Court of the Forum will shift the burden of going forward with evidence, as to the foreign law, upon the party not having the burden of proof of the whole issue, of which the foreign law is a part." (1) "When the Court of the Forum takes judicial notice that the foreign state has fundamentally the same system of law as that of the Forum, the Court of the Forum will presume that the law of the foreign state is the same as that of the system of law (exclusive of statutory changes) fundamentally common to both; otherwise, there is no presumption at all." When the courts will take judicial notice that the foreign states have fundamentally the same system of law, appears pretty clear from the cases. For instance, the Illinois courts will take judicial notice that the common law prevails in England, certain provinces of Canada, and probably all the states of the Union, with the exception of Texas, Florida and Louisiana, and this presumption will be exercised. Crouch v. Hall, 15 Ill. 263; Bradley v. Peabody Co., 99 Ill. App. 426; Miller v. McVeagh, 40 Ill. App. 532; Lipe v. McClevy, 41 Ill. App. 59. This is true even if the legislature of the forum has abolished the rule of the common law applied. The rationale of this general rule of law is discussed and the author illustrates its practical application. The following leading cases, establishing the rule, are dealt with at length: Male v. Robert, 3 Esp. 163 (1800); Thompson v. Ketcham, 8 Johns, 190 (1811); Leach v. Pilsbury, 15 N. H. 137 (1844); Aslanian v. Dostumian, 174 Mass. 328 (1899); In re Hall, 61 N. Y. A. D. 266 (1901). There is qualification of this doctrine to the effect that certain fundamental and rational principles of law, such as the defense of payment, and that an action lies for injury to a person, caused by negligence, which, from their nature may be assumed to exist in

the system of law of every civilized country, may be relied upon without proof. The jurisdictions in the United States supporting this first of the possible rules are as follows: Colorado, Georgia, Indiana, Kentucky, Maine, Maryland, Michigan, New Hampshire, New Jersey, New York, North Carolina, Oregon, South Carolina. (See 67 L. R. A., 42-45.)

(2) The second position is to the effect that the law of the forum is always applicable, in the absence of proof of the foreign law. The burden, under this rule, is always upon whichever party wishes to show that the foreign law differs from the law of the forum. This view seems not to rest upon any rational inference from the facts of which the court takes judicial notice. Its value lies in its simplicity, and its weakness, in that it throws an unjust burden on the one who has naturally the burden of going forward with the evidence. Texas, Louisiana, California and Iowa are the jurisdictions which apply this rule.

(3) The third position is supported by certain cases in Missouri, Alabama, New York and Arkansas, and is a combination of the other two. "It is like the first when the Court of the Forum takes judicial notice that the foreign state has fundamentally the same system of law as that of the forum. It is like the second, when the court of a forum takes judicial notice that the foreign state has fundamentally a different system of law than that of the forum." The author points out that this is unsound in principle and unjust as to the fixing of the burden of proof. He doubts whether sufficient competent authority can be marshalled in any jurisdiction to make it binding. The article is rich in citations, too numerous to repeat in this review.

Liability in the Admiralty for Injuries to Seamen.-FITZ-HENRY SMITH, JR. The writer calls attention to the fact that, in spite of the antiquity of the maritime law and of the care which courts of admiralty have always exercised to safeguard the interests of seamen, many questions are yet unsettled, and the task of ascertaining the recognized rights of seamen, on account of injuries, is by no means free from difficulty. After an exhaustive discussion of cases (Mr. Justice Brown's decisions in the Osceola, 189 U. S. 158, being particularly considered), the author thus summarizes his conclusions: (1) That in the case of an injury by accident, the seaman is entitled to no indemnity; (2) that in the case of an injury resulting from negligence there is likewise no right to an indemnity, unless the act or acts of negligence constitute a breach of some contractual

duty; (3) that in the case of an intentional injury, no indemnity can be recovered, unless the wrong also amounts to a breach of a contractual duty, or unless the offender was, at the time, acting as the agent of the owner and within the scope of his employment; (4) if any injury happen while the seaman is in the "service of the ship," he is entitled to maintenance and cure, to his wages and to a passage back to the port of shipment, or the cost of the same-in the absence of wilful misconduct upon his own part; (5) if an intentional injury is a breach of the shipping contract, the ship, in America, is liable in rem.

Respondeat Superior in Admiralty.-FREDERIC CUNNINGHAM. This article is a plea for the limitation of the doctrine of respondeat superior and against its introduction into admiralty law. The injustice of a doctrine which deprives A of property, on account of some wrong done by B, and through no fault or neglect of A, is pointed out. The doctrine could only be applied in actions arising ex delicto and in personam. The theory of the action in rem, that is, against the vessel itself, has no connection with the law of master and servant, or with the maxim “respondeat superior." The China, 7 Wall. 53, The John G. Stevens, 170 U. S. 113; Homer Ramsdell Co. v. C. G. T. Co., 182 U. S. 406.) Even in actions in personam this theory has no place. The liability of the owner, in most cases of marine tort, depends upon his being a privy to the tort. (The China, supra; The Osceola, 189 U. S. 158; Crisp v. U. S. S. Co., 124 Fed. Rep. 748.) The only Supreme Court case looking toward the liability of an owner in personam for an act of his servant, to which he was not privy, is Leathers v. Blessing, 105 U. S. 626. Certain of the lower admiralty courts have sanctioned this doctrine. To preserve the purity and uniformity of the maritime law and its just and effective administration, it should not receive further approval.

MAY. Railway Rate Regulation.-ADELBERT MOOT. This is another study of the problem, with an account of the development of rate regulation in England and in the United States. The article is mainly directed toward rebutting the growing feeling that the decisions of the courts have been injurious to the growth of real reform in rate regulation. In view of the broad court review provided for by recent legislation, the views of this writer are at least supported by Congress.

Following Misappropriated Property into its Product.-JAMES BARR AMES. A practical discussion of this question with citations.

JUNE. Transfers of After-Acquired Property.-SAMUEL WILLISTON. Another practical discussion, of value to practitioners, with numerous citations, not susceptible of review here.

Constitutional Protection of Decrees for Divorce.-JOSEPH H. BEALE, JR. Professor Beale, in this article, adds his anathema to the much condemned decision of the Supreme Court in the case of Haddock v. Haddock, decided April 16th. He takes occasion to remark: "This novel and extraordinary doctrine has never before been suggested by a civilized court, or author. The Supreme Court of the United States is entitled to the credit of originality, at least. The following are probably the only views held by civilized courts." Here follows a statement of the law in various European states. Mr. Justice White's analysis of the decision, in the state court, is criticised as unsound, and the writer maintains that these state decisions are overwhelmingly opposed to the conclusions reached by the Supreme Court, and that the Supreme Court case of Atherton v. Atherton, 181 U. S. 155, was a controlling authority. Professor Beale concludes as follows: "The decision, then, is opposed to reason, to authority and to morality, but it will stand until the question is raised again. As Mr. Justice Holmes said in his opinion, civilization will not come to an end meanwhile." The meat of the decision is that there must be personal jurisdiction over the defendant, in a divorce proceeding, in order that the decree may be enforceable in another state, under the full faith and credit clause of the constitution. This is most effectively attacked by the writer, when he calls attention to Mr. Justice White's failure to apply the doctrine that the jurisdiction required is merely a jurisdiction in rem. It is conceded that the plaintiff must, under the decisions, be domiciled in the forum. If this is so, then the action is something more than one in personam, because the residence of the plaintiff has in general nothing to do with jurisdiction. The action concerns a status, and both New York and Connecticut having jurisdiction over the status of marriage, can affect it, by dissolving it, and since jurisdiction does not involve the power of continuing a right in existence, but of creating right, once it has been dissolved, nothing is left for the other state to affect.

Vested Gifts to a Class and the Rule against Perpetuities.-ALBERT MARTIN KALES. This is a discussion of a problem put by Professor Gray in his Rule against Perpetuities, second edition, Sec. 129 B. An answering and explanatory note by Professor Gray follows the article. E. E. W.

COLUMBIA LAW REVIEW.

MARCH. The Free Church of Scotland Case. - FRANCIS C. LOWELL. The cases of General Assembly of Free Church of Scotland v. Lord Overtoun and Macalister v. Young, decided by the House of Lords ([1904] A. C. 515) on appeal from the Scottish courts, is one of the most important ever decided in Great Britain, Judge Lowell writes, in respect of the amount of property involved and the number of people affected, and presents questions of charitable trusts which are liable to arise among religious organizations generally in the United States. The Free Church of Scotland, a dissenting Presbyterian body, which nevertheless believed in the principle of establishment or state support, voted by a large majority to unite with another dissenting Presbyterian sect, the United Presbyterians, under the name of the United Free Church. The actions were brought to determine whether the property of the Free Church passed to the new United Free Church or remained in the minority who opposed the consolidation. The House of Lords decided in favor of the minority, on the ground that, the United Free Church had departed from two dogmas of the Free Church-establishment and predestination. The report of the case fails to present the precise form in which the questions arose, but the issue was as to the construction of the charitable trusts, that is, the purposes, under which the property was given to the Free Church by the original donors. Instead of turning to the language of the original grants, however, in order to determine the intention of the grantors, even of the most recent of them, the Lords had recourse to the history of the Free Church movement, and the religious opinions of its founders. Further, they adopted the theory, which is opposed to the weight of American authority, that the continuity of a church depends on the identity of its doctrine, rather than that of its organization, and that neither the formal organization nor the majority of the members were intended to have the right to make any changes, unless consent therefor was expressly given. The court then took upon itself to determine whether there had been any change of doctrine, and in so doing again departed from the rule of action of the American courts, which accepts as final the determination of such questions by the religious bodies themselves. (See Watson v. Jones, 13 Wall. 679.) On both of these points Judge Lowell prefers the American view. Finally, the holding that there had been an essential change of doctrine in the first place gives undue importance to the dogma of establishment, which in a dissenting church was