BILLS OF PEACE BILL TO ENJOIN NUMEROUS SUITS IN JUSTICES' COURTS AND TRY AS ONE IN EQUITY. For violation of a city ordinance requiring street railroads under penalty to furnish sufficient cars to prevent overcrowding, etc., the appellant had begun in the justice's court sixty suits against one appellee and a hundred against the other, and was threatening more. The two appellees for themselves and others similarly situated filed a bill of peace to have the suits enjoined on the ground that the ordinance was unconstitutional. There was no allegation that irreparable damage would ensue to the appellees from the enforcement of the ordinance, and the two were practically the only ones affected thereby. Held, that, under these circumstances, a bill of peace will not lie. City of Chicago v. Chicago City Ry. Co. et al., 78 N. E. Rep. 890 (Ill.).

Third

As there was no allegation of irreparable damage resulting from the enforcement of the ordinance, the appellees singly, under the rule prevailing in Illinois, would not have been entitled to a bill of peace on the ground of avoiding a multiplicity of suits, at least in the absence of a determination of one in their favor. C. B. & Q. Rd. v. City of Ottawa, 148 Ill. 397. The rule that enjoins all but one suit which is allowed to proceed at law seems preferable. Avenue R. R. Co. v. Mayor of New York, 54 N. Y. 159. The Illinois doctrine, however, gives to many parties subject to suits a bill of peace, although it denies such relief to one party subject to many suits. As there were but two parties in the principal case, it may be defended on the ground that they were not numerous enough to support the bill. This, however, is but a question of degree and, assuming they were sufficiently numerous, the question yet remains whether a community of interest in the law and fact involved is enough on which to found a bill of peace. Though the authorities are in conflict, the better rule says that it is. Crawford v. Mobile, etc., R. R., 83 Miss. 708; contra, Ducktown, etc., Co. v. Fain, 109 Tenn. 56. See 14 HARV. L. REV. 611.

LIMITATION OF LIABILITY

CARRIERS - DEVIATION DEPRIVING CARRIER OF EXEMPTION. A bill of lading exempted the shipowners from liability for damage arising from the act or neglect of the master, stevedores, etc. The ship deviated from the specified course. On its arrival at its destination the goods of the plaintiff were damaged by stevedores in unloading. Held, that the deviation deprives the shipowners of the exemption from liability. Thorley, Ltd. v. Orchis Steamship Co., Ltd., 23 T. L. R. 89 (Eng., K. B. D., Nov. 21, 1906).

It is well settled that when a carrier deviates from the route specified by his agreement with the shipper, he becomes an insurer against all damage in any way traceable to the deviation, even when exemptions in the contract cover the predominating cause of the loss. Maghee v. The Camden & Amboy R. R. Co., 45 N. Y. 514; Davis v. Garrett, 6 Bing. 716. But it seems that the carrier would not be liable if the same damage must have occurred without deviation. See Davis v. Garrett, supra, 724; Story, Bailments, § 509. A reasonable basis for these cases is that the carrier should be liable for the direct and indirect consequences of the wrongful act of deviation. This view does not account for the present case, because the deviation was apparently not even a remote cause of the damage. The case requires the more extreme view that the breach in deviating cancelled the bill of lading and restored the carrier to his liability as insurer unrestricted by any exemptions specified therein. See Balian v. Joly, Victoria & Co., 6 T. L. R. 345. The case under discussion seems to be the first direct application of this view.

CONSENT AS BASIS.

CONFLICT OF LAWS - PERSONAL JURISDICTION The plaintiffs and defendant were members of an Australian partnership, the defendant being resident in England. The plaintiffs, without obtaining personal service on the defendant, brought action in the Australian court for dissolution of the partnership and for an accounting. They recovered a judgment, on which they sued in England. The defendant set up that the Australian court had no jurisdiction. Held, that the defendant by entering the partnership must be taken to have consented that the Australian court should settle part

nership disputes, and hence the judgment is valid. Emanuel v. Symon, 23 T. L. R. 94 (Eng., K. B. D., Nov. 26, 1906). See NOTES, p. 323.

CONFLICT OF LAWS Remedies

RIGHT OF ACTION FOR DEFICIENCY ON MORTGAGE BOND GOVERNED BY FOREIGN STATUTE.. Under a New Jersey statute providing for the collection of a debt secured by bond and mortgage, a creditor was compelled first to foreclose and sell the mortgaged premises, and then, if there were any deficiency, he might sue for it upon the bond within a limited time. If he recovered judgment in such a suit, the judgment creditor might redeem the property provided his suit for redemption were brought within six months after the entry of the aforesaid judgment. Held, that the statute confines proceedings to collect a deficiency after foreclosure to the New Jersey courts, and hence that no action therefor is maintainable in New York. Hutchinson v. Ward, 114 N. Y. App. Div. 156.

The effect of the foreclosure proceedings under the statute was to extinguish the old obligation and, in case of a deficiency, to give a limited right of action therefor. See Sea Grove, etc., Ass'n v. Stockton, 148 Pa. St. 146. Rights are created only by law, and of course their nature and extent are governed by the law creating them. See Lowry v. Inman, 46 N. Y. 119, 126. Thus, it is settled that if a statute creates a liability and also limits the time in which actions may be brought upon it, the limitation as to time, being a part of the right, will be given effect by foreign courts. Northern Pac. Lumber Co. v. Lang, 28 Ore. 246. And where the statute creates a right and, by specifying a particular method of enforcement, indicates that the right is only to be enforced within the state, suit upon such right cannot be brought in a foreign jurisdiction. Marshall v. Sherman, 148 N. Y. 9; Fowler v. Lamson, 146 Ill. 472. Hence, if the right to sue for a deficiency in the principal case was confined by the statute creating it to a proceeding in New Jersey, as the court said, the court was clearly correct in refusing to entertain the present suit. The statute, however, does not seem to warrant that construction.

CONFLICT OF LAWS-SITUS OF CHOSES IN ACTION-SITUS OF JUDGMENT DEBTS FOR PURPOSE OF ADMINISTRATION. - A recovered a judgment in Virginia against B, who later removed to Missouri. A died in Virginia, and the plaintiff took out ancillary papers of administration in Missouri for the sole purpose of realizing on the aforesaid judgment against B, there being no other property of the deceased in Missouri. Held, that the judgment debt is an asset in Missouri, and being such, will support the issuance of ancillary letters of administration for the purpose of its collection. Miller v. Hoover, 97 S. W. Rep. 210 (Mo., K. C. Ct. App.).

It is undoubted law that a simple contract debt is an asset where the debtor is. Saunders v. Weston, 74 Me. 85. As regards judgment debts, however, the English rule, followed by some authority and many dicta in this country, locates them as assets where the record is. Anonymous, 8 Mod. 244; Moore v. Tanner's Adm'r, 5 T. B. Mon. (Ky.) 42. The minority view which holds them, like simple contract debts, assets where the debtor is, seems preferable. Swancy v. Scott, 9 Humph. (Tenn.) 327. A judgment debt, being a chose in action, has no situs. If it can be said to be located anywhere for the purpose of administration, it must be where the court has power to reduce it to possession. See Speed v. Kelley, 59 Miss. 47, 51. And that is obviously where the debtor is. Moreover, unless the judgment debt is considered an asset at that place, in cases where the debtor is in a jurisdiction different from that of the record, there will be no one who can collect the debt, for it is fundamental that an administrator or executor can bring no suit outside the jurisdiction which appoints him, nor can he take out ancillary letters where there are no assets. Therefore the principal case seems sound.

RELATION BE-
A suit

CONFLICT OF LAWS TESTAMENTARY SUCCESSION TWEEN EXECUTOR AND FOREIGN ADMINISTRATOR of Deceased. in equity was begun in Massachusetts, where the defendant, a citizen of Michigan, was personally served. Later the defendant died, and his will was

probated in Michigan. The suit in Massachusetts was continued against the administrator with the will annexed, and the decree went against him. Held, that the decree does not bind the executor in Michigan. Brown v. Fletcher's Estate, 109 N. W. Rep 686 (Mich.).

For a discussion of the principles involved, see 19 HARV. L. Rev. 628.

CONSTITUTIONAL LAW DUE PROCESS OF LAW REVIEW OF TAX ASSESSMENT BY COURT. The statutes of Kentucky provided a method for the assessment of back taxes, but did not expressly provide for any notice thereof or for a hearing. The plaintiff was assessed for back taxes, but obtained an injunction from the county court restraining collection of them. At the trial the court gave a hearing upon the validity and amount of the tax, reduced the assessment materially, and declared the rest a lien on the plaintiff's property. Held, that such a hearing, granted as of right, is sufficient as due process of law, though not provided for by the statute. Security Trust & Safety Vault Co. v. City of Lexington, U. S. Sup. Ct., Dec. 3, 1906. See NOTES, p. 320.

COPYRIGHTS INFRINGEMENT MUSICAL COMPOSITION. - For use in a piano-player the defendant had manufactured perforated rolls of the plaintiff's copyrighted music. The plaintiff sought to enjoin this as an infringement of his copyright. Held, that there is no infringement. White-Smith Pub. Co. v. Apollo Co., 147 Fed. Rep. 226 (C. C. A., Second Circ.).

For a discussion of the case in the lower court, see 19 HARV. L. REV. 134. Cf. Stern v. Rosey, 17 App. D. C. 562.

--

CORPORATIONS CORPORATE POWERS AND THEIR EXERCISE WHAT ACCOUNT CHARGEABLE WITH INTEREST ON BORROWED FUNDS. — A tramway company, for the purpose of converting its system from horse to electric traction, issued debentures bearing interest. Held, that a resolution charging the interest on the debentures to the capital account is proper. Hinds v. Buenos Ayres, etc., Tramways Co., [1906] 2 Ch. 654.

If the end be within the scope of the corporate charter, any means, not inconsistent with the letter or spirit thereof, which is appropriate and adapted to that end, will normally be proper. Union Bank v. Jacobs, 6 Humph. (Tenn.) 515. In the case at hand no question is raised as to the propriety of electrifying the road, and the power to issue debentures to meet the cost is conceded. The court finds as a fact that the work is in the nature of construction, the cost of which may properly be charged to capital rather than income. Obviously the hire of the necessary funds, or interest, is as much a part of the cost of construction as the hire of the necessary men, or wages. Hence, though there is very little authority on the point, if the cost of construction is properly charged to capital, such interest may be included. See Bloxam v. Metropolitan Ry. Co., L. R. 3 Ch. 337, 351; Bardwell v. Sheffield Waterworks Co., L. R. 14 Eq. 517.

CORPORATIONS

SCRIPTION.

CORPORATIONS DE FACTO SUIT ON STOCK SUB

- The plaintiff had been incorporated under color of law and had been doing business for several years when the defendant subscribed for stock. Held, that in a suit upon such stock subscription the defendant may not set up as a defense that the plaintiff was not legally incorporated. Farmers' Mutual Telephone Co. v. Howell, 109 N. W. Rep. 294 (Ia.).

When the rights of third parties have been predicated in any way upon the faith of the defendant's subscription to stock, or when the defendant has received any benefits from the corporation because of such subscription, he cannot set up as a defense to a suit upon that subscription that the corporation has only a de facto existence. Dows v. Naper, 91 Ill. 44; Weinman v. Wilkinsburg, etc., Ry. Co., 118 Pa. St. 192. If, however, these objections do not intervene, there seems no reason in principle why there should not be a defense. Kansas City Hotel Co. v. Hunt, 57 Mo. 126. Unlike the ordinary contracts of a de facto corporation, the defendant in the case of a stock subscription does

not get what he contracted for. Stock in a de facto corporation is not so good as stock in a de jure corporation, and the defendant may be thrown under a personal liability which he did not contemplate. The above decision seems, nevertheless, to be in accord with the weight of authority in permitting a recovery without any consideration of the question of the interposition of the rights of third parties. Swartwout v. Michigan Air Line Rd. Co., 24 Mich. 389.

CORPORATIONS DIRECTORS Cost of SENDING CIRCULARS AND PROXY FORMS CHARGED TO CORPORATION. - The directors of a railway company, whose policy was being attacked by a body of the shareholders, but who honestly believed in it, just before a general meeting sent out at the corporate expense circulars explaining and defending their policy, together with proxy forms with the names of certain directors thereon as proxies, with stamped envelopes for return postage. Certain shareholders applied for an injunction restraining further action of the kind by the directors. Held, that the application be denied. Peel v. London & N. W. Ry. Co., 23 T. L. R. 85 (Eng., C. A., Nov. 19, 1906).

This case raises a question of considerable practical importance because of the prevalence of the practice of sending out, at the expense of the corporation, blank proxies and circulars. The decision seems founded on correct principles. Equity is somewhat reluctant to interfere in the internal affairs of a corporation. The shareholders must clearly show that the directors are acting either in excess of their powers or for their own interests in a manner harmful to the interest of the shareholders. See Hawes v. Oakland, 104 U. S. 450, 460. Directors in sending out circulars explaining and advocating this policy may well believe they are acting for the best interests of the corporation, which it is their duty to do. The sending of blank proxies with return postage would also seem within their powers, as it tends to the procurement of a full vote and the effectuation of the will of the whole body of stockholders. An earlier English case is overruled by this decision. Studdert v. Grosvenor, 33 Ch. D. 528. The point seems never to have been decided in America.

CORPORATIONS · STOCKHOLDERS CONTRACT LIMITING NUMBER OF SHARES TO BE HELD BY EACH.-H was a large subscriber for shares in an organized corporation, but stock had not been issued to him. The corporate enterprise was abandoned, and H and others formed a contract for the revival of the corporation upon terms requiring that each person take no more than ten shares of stock and that H release his right to stock under his old subscription. The executors of H brought mandamus to compel the new corporation to issue the amount of stock for which H had originally subscribed. Held, that an injunction will be granted the other stockholders against the prosecution of this suit. Hladovec v. Paul, 78 N. E. Rep. 619 (III.).

There clearly was no adequate remedy at law here, since the officers of the corporation, when sued, would be unable to take advantage of the contract made between the stockholders. Equity, therefore, should grant relief, unless there is some objection on grounds of public policy. In all but a few exceptional cases it is well settled that a by-law restraining the alienation of shares of stock is void as being in restraint of trade. Bloede Co. v. Bloede, 84 Md. 129. A contract, however, to the same effect between stockholders rests upon an altogether different basis. New England Trust Co. v. Abbott, 162 Mass. 148; see Adley v. The Whitstable Co., 17 Ves. Jr. 315, 323. It is often for the best interests of all concerned that there should be some such agreement. The contract, moreover, can be considered with reference to the particular transaction at hand; and, being expressly consented to by the stockholders against whom it is sought to be enforced, is not a general restraint imposed by the corporation on all persons holding stock. The decision of the above case is therefore sound, and any other result would be plainly inequitable.

SPIRACY.

-

CORPORATIONS TORTS AND CRIMES - LIABILITY FOR CRIMINAL CONTo an indictment for conspiracy in restraint of trade under the Sherman Anti-Trust Act, the defendant, a corporation, demurred. Held, that a

corporation can commit the crime of conspiracy. United States v. Mac Andrews and Forbes Co., 36 N. Y. L. J. 815 (Circ. Ct., S. D. N. Y., Dec., 1906). See NOTES, p. 321.

DIVORCE

ALIMONY ASSIGNMENT OF ALIMONY. - A divorced wife who was entitled by the decree of divorce to a sum of money in full satisfaction of all claims for permanent alimony, assigned her right to a third person. Held, that such assignment is of no effect. Fournier v. Clutton, 109 N. W. Rep. 425 (Mich.).

The view in the United States seems to be that the very nature of alimony forbids alienation of it. It is given to the wife to insure her support, and for no other purpose will payment of it be enforced. Jordan v. Westerman, 62 Mich. 170. In England, although the cases are few, the same rule seems to apply. In re Robinson, L. R. 27 Ch. 160; but see Ex parte Bremner, L. R. 1 P. & D. 254. Similarly an allowance made by the court to a widow pending the settlement of the husband's estate is held to be inalienable, because given exclusively for her maintenance. Hackley v. Muskegon Circuit Judge, 58 Mich. 454. Even where the decree recites that a certain sum to be paid quarterly "shall stand as a final division of property" between the husband and wife, no assignable interest passes to the wife. Kempster v. Evans, 81 Wis. 247. Analogous to the above cases are those which hold that a pension granted to a public officer upon his retirement is not assignable. Wells v. Foster, 8 M. & W. 149. A distinction is made, however, between pensions given so that the recipient may keep himself in readiness for some future call and those given as a reward of merit. Wells v. Foster, supra; Willcock v. Terrell, 3 Ex. D. 323.

EASEMENTS PRESCRIPTION TENANT'S INTERRUPTION OF ADVERSE ENJOYMENT. The defendant infringed easements appurtenant to land in the possession of a tenant for years. Before twenty years, the period requisite for title by prescription, had elapsed, the tenant brought suit for the infringement. After the twenty years the plaintiff as owner of the fee brought a similar suit Held, that the suit brought by the tenant does not interrupt the running of the prescriptive period against the owner of the fee. Goldstrom v. Interborough, etc., Co., 36 N. Y. L. J. 489 (N. Y., App. Div., Nov., 1906). See NOTES, p. 317.

ELECTIONS · CONSTITUTIONALITY OF VOTING MACHINES. A state statute authorized the adoption of a voting machine that should secure secrecy and be generally efficient. The state constitution provided that elections should be by ballot. Held, that voting by the machine is voting by ballot within the meaning of the constitution. Elwell v. Comstock, 109 Ň. W. Rep. 698 (Minn.).

Voting machines not only do away with separate paper ballots, but in some cases substitute mechanical accuracy both for the sensible knowledge of the voter that he has voted as he wished and for the responsibility of officials for the count. Therefore, under the Massachusetts Constitution which provides for a written vote to be counted by officials, some judges thought that the machine's action ought to be visible to the voters and officials. On the other hand, a written vote was defined by others as a change in a material object connected with the written name of a candidate, if such change in common understanding expressed a vote. See Opinion of the Justices, 178 Mass. 605. This latter construction, in not limiting the meaning of the word "ballot" too strictly, follows the general purpose of the ballot to secure a free, secret, and accurately recorded vote. See Detroit v. Board of Inspectors, 139 Mich. 548; Lynch v. Malley, 215 Ill. 574. There is authority along with the present case for disregarding the more specific meaning so long as an absolutely certain meaning is not opposed. Temple v. Mead, 4 Vt. 535; see State ex rel. Robertson v. McGough, 118 Ala. 159. The result in these cases, allowing new methods of fulfilling old purposes, is surely to be desired.

EQUITY JURISDICTION - ENJOINING TRESPASS IN FOREIGN JURISDICThe plaintiff sought an injunction against continued trespasses by the

TION.