RECENT CASES.

AGENCY - EFFECT OF STATUTES ON RELATION MASTER'S LIABILITY TO PROVIDE SAFE PLACE TO WORK. A Tennessee statute required the employment of a licensed foreman in every mine; conferred on such foreman control of specified parts of the operation of the mine; relieved him from the control of the owner; and imposed penalties to secure faithful service by him. The plaintiff, one of the defendant's miners, was injured by a fall of slate from the roof of the room in which he was working, due to the negligent performance by the foreman of a duty imposed by the statute. The foreman was duly licensed and competent. Held, that the plaintiff cannot recover. Coal & Coke Co. v. Priddy, 96 S. W. Rep. 610 (Tenn.).

Sale Creek

The mere fact that statutes require certain employees to be licensed, thereby limiting the employer's field of selection, does not prevent such employee from being a servant for whose negligence the master is liable. Martin v. Temperley, 4 Q. B. 298. But this statute goes further. By removing from the mineowner the right of control over details, it changes his foreman from his servant, as he otherwise would be, to an independent contractor. Cases such as this are rare, and the courts have not always realized the true relation of the parties. See Durkin v. Kingston Coal Co., 171 Pa. St. 193. A master, however, by employing an independent contractor cannot divest himself of his liability to provide his servants with a safe place to work. Herdler v. Buck's Stove Co., 136 Mo. 3. Employing a foreman prescribed by statute should not be enough to relieve him from such liability. Smith v. Drayton Co., 115 Tenn. 543; contra, Williams v. Thacker Coal Co., 44 W. Va. 599. Whether this statute in giving control of certain matters to an independent contractor relieves the owner of such liability pro tanto, the court does not consider, and the question must be considered as open. We may support the decision by saying that a room in a mine is not a place provided for work, but a temporary instrumentality, as a scaffolding or ditch. Coal & Mining Co. v. Adm. of Clay, 51 Oh. St. 542.

AGENCY LIABILITY OF PRINCIPAL TO THIRD PERSONS IN TORT - STOCK CERTIFICATE FORGED BY SECRETARY OF COMPANY. The secretary of a company, acting for private purposes, forged a certificate of shares in the company. The certificate was perfectly regular in form, sealed with the seal of the company, and attested with the signatures of two directors, which signatures were forged. Held, that persons who, relying on the certificate, have advanced money to the secretary cannot recover from the company, and that the com. pany is not estopped from denying the invalidity of the certificate. Ruben & Ladenburg v. The Great Fingall Consolidated Co., 95 L. T. R. 214 (Eng., H. L., July 19, 1906).

For a discussion of this case in the lower court, see 18 HARV. L. REV. 144. AGENCY PRINCIPAL'S RIGHTS AGAINST AGENT LIABILITY FOR AMOUNT OF SECURITIES FALSELY DECLARED BY AGENT TO REPRESENT INVESTMENT OF PRINCIPAL'S MONEYS. The defendants' testator, the executor of a will, was appointed by the plaintiffs their attorney in fact to keep invested the sums due them as beneficiaries under the will. He falsely represented to them in his accounts that he held these sums invested in certain mortgages, and regularly paid them money as interest thereon. The accounts were accepted by the plaintiffs, and the representations believed. Held, that the defendants are liable for the amounts represented by such alleged investments. Hartmann v. Schnugg, 35 N. Y. L. J. 943 (N. Y., App. Div., June. 1906).

For aught that appears, the testator had cared for the plaintiffs' moneys with due fidelity. Hence his estate would be liable to account only for that property of the plaintiffs which he actually had, unless the root of a further liability is found in his misrepresentations. Although the court gives no reasons and cites no authorities, yet its decision seems to be reached by enforcing an equitable estoppel, inasmuch as the liability imposed on the testator's estate is coincident

with the liability which would have been imposed had the representation been true. The elements of estoppel by misrepresentation may be outlined thus: a misrepresentation as to present or past facts, wrongfully made with foresight of or reason to foresee another's acting upon it, and in fact believed and prejudicially acted upon by that other. See EWART, ESTOPPEL, 10. In the present case the essentials are undoubtedly complete, if the plaintiffs changed their position prejudicially, a point ignored in the court's statement of facts. Relative change of position, however, might well be found in the plaintiffs' allowing their moneys to remain under the testator's control. See Continental, etc., Bank v. Nat'l Bank, 50 N. Y. 575, 584; cf. Skyring v. Greenwood, 4 B. & C. 289. Moreover, very slight damage has been held sufficiently to prejudice the deceived party. See Knights v. Wiffen, L. R. 5 Q. B. 660, 665; also 19 HARV. L. Rev. 113.

APPEAL AND ERROR- DETERMINATION AND DISPOSITION OF CAUSEDECISION BY DIVIDED COURT. - On appeal in a personal injury case, where the questions involved in the appeal related to the accuracy of the lower court's instructions, two justices considered the instructions erroneous and also a ground for a new trial. Of the two remaining justices, both of whom opposed the granting of a new trial, one did so on the ground that the appellant's case was not prejudiced, though admitting that, as matter of law, there was error. Held, that the appeal should be allowed. Hawley v. Wright, 39 Nova Scotia 1.

It is a well-recognized rule that when an appellate court stands equally divided the decision appealed from shall be left in statu quo. The exception involved in the present case is perhaps due to the fact that, although on the final question as to whether or not a new trial should be granted, there was an equal division, the legal error committed by the lower court was conceded by a majority.

PEAL

APPEAL AND ERROR WAIVER OF RIGHT TO PROSECUTE SECOND APIn an action to compel the defendant to repair a street and to rebuild sidewalks, the lower court granted the relief demanded except as to the sidewalks. The defendant appealed from the unfavorable part of the decree, and it was affirmed. The plaintiff thereafter appealed from the remainder of the decree. Held, that a motion to dismiss the appeal be denied. State v. Northern Pac. Ry. Co., 109 N. W. Rep. 238 (Minn.).

This decision is based on the construction of a statute permitting either party to appeal from the portion of a judgment which he deems erroneous, and on a rule of court. Under such a statute, unless the respondent could and should have presented and had corrected on the first review the errors of which he now complains, the second appeal is of course proper. Page v. People, 99 Ill. 418. The majority view, with which this case agrees, is that the right to cross-assign errors on the first appeal, which is quite generally given either by rule of court or by common practice, is permissive and not obligatory. Guarantee Co. v. Insurance Co., 124 Fed. Rep. 170. A better view is that if the whole record has been once before the court, and the present appellant could have filed cross-assignments of error, it was his duty to do so, and in default thereof he waived his right to appeal. Scully v. Smith, 66 Kan. 265. This prevents multiplicity of suits, doubling the costs, and simplifies procedure. Horne v. Harness, 18 Ind. App. 214. If, however, the decision correctly interprets the Minnesota rule of court as not permitting cross-assignments of error, the case may be sustained on that ground.

BANKRUPTCY - PROVABLE CLAIMS COUNTERCLAIM AFTER EXPIRATION OF ONE YEAR. - In a suit by a trustee in bankruptcy, begun more than a year after the adjudication, the debtor endeavored to diminish or defeat the claim by pleading a claim for damages for breach of contract by the bankrupt before his bankruptcy. Held, that the claim may be proved by way of counterclaim. Norfolk & W. R. Co. v. Graham, 16 Am. B. Rep. 610 (C. C. A., Fourth Circ., May, 1906).

$57 n of the Bankruptcy Act of 1898 limits the time within which claims may be proved against the estate to one year from the adjudication. § 68 b (1) of the Act provides that a set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt, which is not "provable" against the estate. In the former Act of 1867 the corresponding phrase used was "in its nature provable." The change has caused some speculation, but it seems agreed that the new language has substantially the same meaning as the old. Morgan v. Wordell, 178 Mass. 350. There are a few expressions to be found that provability depends upon the status of the claim at the time of filing the petition. See In re Bingham, 94 Fed. Rep. 796. The weight of authority, however, is that "provable" means provable in its nature at the time when the counterclaim or set-off is filed. See Morgan v. Wordell, supra.

-

A negotiable certificate

BILLS AND NOTES- PURCHASERS for Value wITHOUT NOTICE — CONDITIONAL Credit to Debtor as CONSIDERATION. of deposit issued by the X bank and endorsed by the depositor in blank, was delivered by him to the A bank for collection. By the A bank it was given to the B bank, which transferred it to the plaintiff C bank, its creditor, and the latter credited the B bank on its books. The C bank sued the X bank and the depositor. Held, that, since the credit given was conditional and not absolute, there can be no recovery, even under the Negotiable Instruments Law. mercial Nat'l Bank v. Citizens' State Bank, 109 N. W. Rep. 198 (Ia.).

Com

The Negotiable Instruments Law provides that an antecedent or pre-existing debt shall constitute value. The argument relied on by the court to take this case out of the provisions of the statute is that, if the instrument were dishonored, recourse could be had to the original obligation from the B bank to the plaintiff, and the credit given was therefore conditional. This is true, but in every case credit for negotiable paper is in this sense conditional, and it is clearly the intention of the statute to cover such cases. If the fact were that the plaintiff knew that the certificate of deposit was deposited originally for collection, the result reached would be correct. In such a case the plaintiff would have been in the position of a trustee or agent. Peck v. First Nat'l Bank, 43 Fed. Rep. 357. One of the cases cited seems to suggest that something of this sort may have been in the court's mind. Old Nat'l Bank v. German Bank, 155 U. S. 556. But if so, the entire discussion on which the court relies would be unnecessary.

CARRIERS DELAY-DUTY TO INFORM PASSENGERS OF CIRCUMSTANCES LIKELY TO CAUSE DELAY.-The plaintiff was travelling from Jacksonville to Columbia via Savannah on the defendant railroad. The defendant knew there were quarantines at both Savannah and Columbia. In response

to inquiries the plaintiff was informed about the latter, but nothing was said of the former. Held, that the plaintiff can recover for delay caused by the Savannah quarantine. Hasseltine v. Southern Ry. Co., 55 S. E. Rep. 142 (S. C.).

The defendant can be held on the ground that it has a duty, at least in reply to inquiries, to give passengers information necessary for their journey. Dwinelle v. N. Y. C., etc., R. R. Co., 120 N. Y. 117. Also, the failure to mention the situation at Savannah was practically the same as saying that there was no quarantine there. This would bring the case under a rule more frequently applied, that passengers can rely upon information given them by the carrier. Penna. Co. v. Hoagland, 78 Ind. 203. The American courts seem to hold that the carrier assumes both the above obligations as an incident to its business. This seems just. England has worked out liability for giving false information on the analogy of deceit. Denton v. Great Northern Ry. Co., 5 E. & B. 860. A similar rule prevails as to carriers of goods. If a railroad takes freight knowing it will be delayed by press of business or some similar cause, it is liable for the delay. Thomas v. Wabash, etc., Ry. Co., 63 Fed. Rep. 200. Some jurisdictions limit this rule to cases where the shipper does not know of the circumstances at the time of shipment. Nelson v. Great Northern Ry. Co., 28 Mont. 297.

MINED.

CONFLICT OF LAWS-SUCCESSION BY WHAT LAW DOMICILE DETERA British subject, born in England, acquired in France a domicile of choice in fact, though he never acquired a legal domicile in the manner prescribed by French law. He died in France, leaving a will disposing of English movables. Held, that as to validity, construction, and administration, the will is governed by English law. In re Bowes, 22 T. L. R. 711 (Eng., Ch. D., July 18, 1906). See NOTES, p. 226.

CONSTITUTIONAL LAW PERSONAL RIGHTS SELF-INCRIMINATION IN CONTEMPT PROCEEDINGS. The defendant had been restrained from committing acts of boycott against the plaintiff, and had disobeyed the injunction. On an order to produce its records in contempt proceedings the defendant claimed exemption under the constitutional provision that no person shall in any criminal case be compelled to be a witness against himself." Held, that when contempt proceedings are to vindicate an essentially civil right, the constitutional provision does not apply. Patterson v. Wyoming Dist. Council, 31 Pa. Super. Ct. 112.

The distinction between contempt proceedings criminal and civil has long been recognized. 4 BLACK., COMM., 285. Those instituted solely to vindicate the dignity of the court are punitive and criminal, while those instituted by individuals for the purpose of protecting or enforcing some right are remedial and civil. Thompson v. Penna. Ry. Co., 48 N. J. Eq. 105. The cases making this distinction have in general involved the existence of criminal intent, and it has been held unnecessary to find such intent in contempt proceedings civil in nature. Indianapolis Water Co. v. American Strawboard Co., 75 Fed. Rep. 972. The court here seems justified in going a step further and applying the distinction to the rule against self-incrimination. The Fifth Amendment is interpreted as applying to cases criminal in nature though civil in form; - e. g., in civil proceedings to collect a statutory penalty the defendant is protected. Boyd v. United States, 116 U. S. 616. The reverse should also be true, and if the proceedings are civil in nature and purpose, though criminal in form and punishment, the defendant should not be allowed immunity. Such is the case here, for contempt proceedings to discover and punish the violation of an injunction are in the nature of civil attachments. People v. Court of Oyer and Term., 101 N. Y. 245.

CONTRACTS ANTICIPATORY BREACH - APPLICATION TO INSURANCE CONTRACTS. The plaintiff sued the defendant corporation for damages for breach of contract, alleging that the defendant had broken the contract to insure his life by declaring it void and forfeited. Held, that the plaintiff has no right of action before the time for performance by the defendant has arrived. Kelly v. Security, etc., Ins. Co., 36 N. Y. L. J. 109 (N. Y., Ct. App., Oct. 2, 1906).

The doctrine of anticipatory breach has been regarded as in force in New York. See Ferris v. Spooner, 102 N. Y. 10. And the court in the present case acknowledges its establishment, but refuses to extend it to insurance contracts. There seems to be no reason for making such a contract an exception to the rule. It is hard to imagine any class of contracts where the argument of the practical convenience of a present action applies with as much force as in life insurance contracts. And the doctrine has been applied to these contracts elsewhere. O'Neill v. Supreme Council, 70 N. J. L. 410. But the present court seems strongly affected by the analogy to promissory notes, to which the application of the doctrine has been denied. Benecke v. Haebler, 38 N. Y. App. Div. 344. It has also been denied application where one side of a contract has been executed. Flinn v. Mowry, 131 Cal. 481. But since the present case is not analogous to these established exceptions, the policy not being paid up, it seems to indicate another halt in the logical extension of an illogical rule. In insurance cases, however, granting the above, recovery may well be allowed on other grounds. See 17 HARV. L. Rev. 46.

CORPORATIONS DE FACTO CORPORATIONS COLLATERAL ATTACK ON GROUND OF FRAUD IN INCORPORATION. The defendants were shareholders

in an organization purporting to have been incorporated under the general laws of Missouri. The plaintiff, suing on a note of the organization, attempted to hold them to individual liability on the ground that the incorporation was fraudulent and void, in that the statements required by the statute as to capital stock subscribed and paid in, though made in due form, were knowingly false. Held, that in such an action the validity of the incorporation cannot be attacked on the ground of fraud. First National Bank v. Rockefeller, 93 S. W. Rep. 761 (Mo., Sup. Ct.). See NOTES, p. 222.

CORPORATIONS DIRECTORS AND OTHER OFFICERS - Power of DirECTORS TO APPOINT EXECUTIVE COMMITTEES. The stockholders of the appellant corporation by a by-law authorized their board of directors to appoint from among themselves an executive committee, with the full powers of the board when the latter was not in session. The board did so create an executive committee. Semble, that the board, though authorized as it is, cannot legally create such a committee. Canada-Atlantic and Plant S. S. Co., Ltd. v. Flanders, 145 Fed. Rep. 875 (C. C. A., First Circ.). See NOTES, p. 225.

CORPORATIONS - DISTINCTION BETWEEN CORPORATION AND ITS MEMBERS BINDING EFFECT ON STOCKHOLDERS OF CONTRACT MADE BY CORPORATION. - The X corporation, with the assent of the individual defendants, its principal stockholders, sold all of its property, including good will, to the plaintiff, and covenanted that it would no longer engage in the same business. The individual defendants with others thereafter formed the defendant corporation, which proceeded to carry on that same line of business. Held, that neither the individual defendants nor the defendant corporation is precluded from so doing by the contract of the X corporation. Hall's Safe Co. v. Herring, etc., Co., 146 Fed. Rep. 37 (C. C. A., Sixth Circ.). See NOTES, p. 223.

CORPORATIONS FOREIGN CORPORATIONS LIABILITY OF FOREIGN CORPORATION TO INCOME TAX. The English Income Tax Act of 1853 provided that any person residing in the United Kingdom should be taxed on his annual gains or profits, etc. The defendant, a foreign corporation, was registered in South Africa, but "kept house and did its real business" in London. Held, that it is "resident" in England within the meaning of the Act, and is liable to taxation on its entire net income thereunder. De Beers, etc., Mines, Ltd. v. Howe, [1906] A. C. 455.

In America, by the great weight of authority, a corporation cannot exist where the law which creates it does not operate. Bank of Augusta v. Earle, 13 Pet. (U. S.) 519, 588. It cannot, therefore, be served or sued in another state, except by its own consent. St. Clair v. Cox, 106 U. S. 350. A state may not lay a personal tax on one not domiciled therein. State Tax on Foreign-held Bonds, 15 Wall. (U. S.) 300. But it may tax, as tangible personalty, income received within its jurisdiction by a foreign corporation. Liverpool, etc., Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566. In substance, therefore, the American rule seems to be that a state may tax the property, but not the person of a foreign corporation. In England, however, the courts have already broken over the theory that a corporation cannot exist outside the state of its creation. A foreign corporation doing business in England may, apparently irrespective of consent, be served and sued. Newby v. Van Oppen, etc., Co., L. R. 7 Q. B. 293; "La Bourgogne," [1899] A. C. 431. The theory is that the corporation, by doing business therein through agents, becomes to that extent at least "resident" in England. The present case carries out the doctrine so as to render the corporation liable to a personal tax. If a foreign corporation be held to exist for purposes of suit and personal taxation, it would seem difficult, logically at least, to deny its legal existence for any purpose. Cf. 20 HARV. L. Rev. 78.

COVENANTS RUNNING WITH LAND CONDITION IN EXECUTORY CONTRACT FOR SALE OF LAND. The owners of certain land contracted to convey part of it to the defendant, with the express condition that the latter should build a fence on its eastern side before taking possession. Later, the