No hard and fast rule can be made to apply. Rates must depend upon ever-changing requirements of trade and business conditions. The article concludes with an exhaustive discussion of whether the acts of a commission would be judicial or legislative, or both, and whether Congress has the right to confer powers of this description, and if so, whether such powers would not be invalid because of the implied authority to differentiate which would be therein contained.

Special Legislation for Municipalities.-HARRY HUBBARD. A general discussion referring to various jurisdictions, and containing many citations of the legislation prohibitory in many states against special legislation for municipalities. The writer reviews the decisions as to what is "special" and what "general" legislation, and the contradictions and evasions therein contained, and comes to the conclusion that the remedy for the various evils he has pointed out is a return" to the good old-fashioned system of special legislation for municipalities."

The

NOVEMBER. Equitable Conversion.-C. C. LANGDELL.1 fourth in the series of articles by Professor Langdell of the Harvard Law School on this subject. The present paper considers the changes effected in the law of equitable conversion by the case of Ackroyd v. Smithsus (1 Bro. C. C. 503), and the modifications which the authorities show to have taken place since that decision.

Patentable Processes.-WILLIAM B. WHITNEY. It seems that until 1895 the acts providing for the granting of patents to the discoverer of any new and useful"art" as well as machine, with the decisions construing the same, have been broad enough to render patentable as a "process" or "art" all acts or modes of acting by which a given subject matter is transformed into a different state or thing. In that year, however, the Supreme Court, in Risdno Locomotive Works v. Medurb (158 N. Y. 68), discriminated between different kinds of processes, holding that in general those which involved chemical or other similar action were patentable, though mechanism might be necessary in their application, while those processes which consisted solely in the operation of a machine were not patentable. The courts soon began to hold invalid patents for processes the patentability of which had never before been questioned. This decision, followed by that in Westinghouse v. Brydin Power Brake Co. (170 U. S. 537), resulted in uncertainty and confusion. What is meant by a process "involving chemical or other 1Choate.

similar elemental action," and what is meant by " function and operative effect of a machine," and when is a process simply such a function or effect?

The writer shows that from the nature of things all processes, provided they be invented and new and useful, are the proper subject of patent grants, and are included in the acts. He then analyses the cases relied upon in the Locomotive Works case, and shows there was no controlling authority for the discrimination as to processes in that case (the cases considered are Wyeth v. Stone, I Story 273; O'Reilly v. Morse, 15 How. 62; Corning v. Binder, 15 How. 252). The writer's conclusions are to the effect: (1) that where a process involves chemical or other elemental action, as the action of electricity, it is surely patentable; (2) that when a process does not involve any power of nature, but may be performed by manipulation although best performed by a machine, it ought to be patentable, and even under the decision in the Locomotive Works case the question may be considered open; (3) that the further proposition that where a process is simply the function or operative effect of a machine, the authorities are conclusive against its patentability, is correct only when properly understood. Where function or operative effect means merely an abstraction, that is, the effect produced, no real question of "process" is involved. E. E. W.

COLUMBIA LAW REVIEW.

JUNE. National Incorporation.-H. W. CHAPLIN. The interstate-commerce clause of the Constitution, the author believes, has been given in all discussions of this topic undue emphasis. He accordingly approaches the subject tentatively from a number of other view points, and makes several interesting suggestions. First of all he calls attention to the power of Congress, as extensive as the power of any state, to create corporations for any purpose whatever when acting in its capacity of local sovereign for the District of Columbia and other parts of the national domain. This power, he declares, Congress might employ even in legislating broadly for the entire country, blending its two capacities of local and, federal legislature and falling back upon either for the justification of any particular act. Thus it might charter corporations engaged in

1

Story. Mr. Chaplin, after writing several standard texts on trusts and surrogate matters and obtaining a recognized position at the New York bar, discontinued practice some two years ago to accept the presidency of a coal products company.

inter-state or foreign commerce as corporations of the District of Columbia.

Another suggestion is that of the power of Congress to enforce a national public policy, a power which has recently been recognized in the Lottery Case (188 U. S.,321) and in Public Clearing House v. Cogne (194 U. S. 497). This policy may easily be extended to the prohibition of monopolies and of all forms of combination, by virtue not only of the power of Congress over commerce, but also of its power over the mails, the revenue service and the patent and copyright laws.

The need of federal action appears from the incapacity of the states either to exclude corporations of other states, so far as they are engaged in inter-state commerce, however inimical they may be to the domestic policy, or to bind themselves by any mutual agreements as to uniformity of policy. Congress, on the other hand, could probably exclude state corporations altogether from inter-state commerce; at least it could require uniform rules of capitalization, stock issue, and other internal affairs, of certain half legal, half practical questions which would present themselves on the enactment of a compulsory federal corporation law, the first of which would be the shifting over from state to federal charters. That no great difficulty would arise appears from the experience of the national banks (see Mich. Ins. Bank v. Eldred, 143 U. S. 293). Nor would the management of the local business create an obstacle, any more than in the case of the Union Pacific and other railroads. Corporations whose entire property is leased need not be disturbed, but on the other hand their property, if railroad, though acquired under a state's power of eminent domain, and any other necessary rights of way, may be acquired or re-acquired by a federal eminent domain resulting from the power to establish posts and military roads. Pure holding corporations, and circular "Tangles," the author thinks, would almost certainly be refused federal charters.

Jurisdiction over Non-Residents in Personal Actions.-EDWARD Q. KEASBEY. An address delivered at the Congress of Lawyers in St. Louis in September, 1904, by Sir William R. Kennedy, a judge of the English High Court of Justice, serves the author's purpose to call attention to an important difference between the modern English and the American practice in entertaining actions in personam against non-resident defendants. Since Pennoyer v. Neff (95 U. S. 714), the principle has been established here that a judgment in such an action is of no force to support an execution unless the

defendant was actually served with process within the jurisdiction. Otherwise the judgments are held invalid even in the courts of the same state and although expressly authorized by state legislation (Eliot v. McCormick, 114 Mass. 10; Vilas v. Plattsburg & Montreal R. R. Co., 123 N. Y. 440; Wilson v. American Palace Car Co., 65 N. J., Eq. 730). Generally speaking, a similar principle has prevailed in England from Lord Ellenborough's time, at least to the extent of leading the courts to refuse to entertain the action. Exceptions have been made, however, by statutes, and by rules of court adopted pursuant to statutes. These statutes and rules the author reviews. One of the most important was the Common Law Procedure Act of 1852, authorizing entry of judgment against a defendant served with a summons or notice abroad, provided the cause of action arose within the jurisdiction or related to the breach of a contract made within the jurisdiction. A distinction was drawn between British subjects and foreigners, in the requirement that the summons itself must be served on the former, while the latter is to be served with a notice of the writ. Under the present orders governing the practice, the summons may be served abroad, among other cases, where the action is founded on a breach within the jurisdiction of any contract performable within the jurisdiction; when a person outside the jurisdiction is a proper party to an action brought against another defendant within the jurisdiction; and where an injunction is sought as to anything to be done within the jurisdiction. These orders apply as well to foreign corporations. In construing and acting upon these moderations of the old practice, the English have refused to consider the international validity of the judgments rendered (Drummond v. Drummond, L. R., 2 Ch. App. 32; Ex parte Blain, 12 Ch. Div. 522). They have considered the new practice reasonable, and adopted the view that service within their own territory is not essential to the assumption of jurisdiction so far as the English courts are concerned.

This is a conclusion, the author believes, well worthy of consideration in this country. As a matter of principle, service within the jurisdiction is perhaps required by natural justice, and "it is especially important, where business and social relations are not divided by state lines, that the limits of jurisdiction should not be divided more sharply than justice and sound principles require, and there is great danger of miscarriage of justice if no state can require jurisdiction where the necessary parties defendant reside in different states." The rule in Pennoyer v. Neff extends only to the

taking of property without due process of law; but it might well be held that in a number of cases-as for example in dealing with the liabilities of stockholders and directors of a corporation-notice of the suit constitutes due process of law on the theory that the nonresident by entering into relations with the corporation has submitted himself to the jurisdiction of the laws and courts of the state of its organization.

Estoppel by Assisted Representative.-JOHN S. EWART. The author of Ewart on Estoppel here replies briefly to an article by Mr. Thaddeus D. Kenneson1 in the Columbia Law Review for April, 1905 (noticed in the last issue of THE BRIEF at page 337), in which Mr. Kenneson attacked the doctrine of the New York Courts in regard to the liability of principals for fraudulently issued stockcertificates, accommodation papers signed by agents who have authority to sign only in the course of business, and warehouse receipts issued for property never received. Mr. Ewart's reply is all the more forceful for the reason that he has abandoned his usual belligerent style in favor of a more dignified method of expression. He attacks the not uncommon view put forth by the Supreme Court of Georgia in a typical case, that the "wrongful exercise of a delegated authority is not the assumption of authority, but the abuse. of it," and that when an agent authorized to sign receipts based on real transactions issues a receipt based on a fictitious transaction, he does not pass beyond the scope of his authority but acts fraudulently within it." If it be true, as is usually assumed, that the agent has no authority to do the particular wrongful act, the above statement is clearly illogical, and Mr. Ewart contributes a valuable service to the case of accurate legal thinking in pointing this out. The "scope of an agent's authority," he says, "is no broader than the authority itself." His own view is that in such a case the principal is bound on the theory of estoppel because he has assisted the agent in making the misrepresentation effective by putting him in a position where he can deceive. For a more complete development of this idea the reader of the article is referred to the author's book on Estoppel.

Mr. Kenneson has further objected that the estoppel theory surely cannot apply where the person deceived sues the principal for damages in an action of deceit, because the plaintiff then asserts the falsity of the representation as his ground of action, and cannot con1Field.-Professor at the New York University and the Columbia Law

Schools.