point. Neither case suggests a satisfactory test of what determines the jurisdiction of admiralty over floating structures, nor do the numerous cases involving dredges establish any definite criterion. The cases mention, as tending to establish admiralty jurisdiction, capacity to navigate, employment in dredging harbors, and the fact that dredges are usually adjuncts to scows used in transporting the dredged material. See The Alabama, 22 Fed. Rep. 449; The Starbuck, 61 Fed. Rep. 502. But it is believed that the proper test is independent of the nature of the employment, — that it is whether the dredge is capable of moving about upon navigable waters. See McMaster v. One Dredge, 95 Fed. Rep. 832. The theory of such test is that as the mobility of a structure on navigable waters subjects it to all the admiralty rules which govern other craft as to lights, collisions, salvage, etc., it should therefore be subject to general admiralty jurisdiction. The Floating Elevator Hezekiah Baldwin, 8 Ben. (U. S.) 556; Saylor v. Taylor, 77 Fed. Rep. 476; cf. U. S. Rev. Stat. § 3; De Lovis v. Boit, 2 Gall. (U. S.) 398.

ADVERSE POSSESSION - CONTINUITY PRESUMPTION OF AGENCY FROM RELATION OF PARENT AND CHILD. A statute gave title to one holding land adversely for seven years with color of title. The plaintiffs claimed as heirs of a deceased sister who at her death had color of title, but not possession. After her death the plaintiff's father entered adversely to the defendants, the true owners. On his death the plaintiffs entered, but had not yet occupied for seven years. Held, that the plaintiffs cannot avail themselves of their father's possession. Barret v. Brewer, 55 S. E. Rep. 414 (N. C.).

As color of title is probably inheritable, the plaintiffs apparently possessed one of the two statutory requirements. See Sears v. McBride, 70 N. C. 152; Neal v. Bartleson, 65 Tex. 478. The question being then as to possession, the plaintifs' title depended on whether they could take advantage of their father's possession, which was possible only if their father held under their color of title as their agent. In the absence of direct evidence that the father held as agent, the theory was advanced that a presumption of agency arose from the relationship, in view of the duty of a parent to safeguard the interests of his children. It has been held that there is a presumption of permission by the child when a parent occupies his child's land. O'Boyle v. McHugh, 66 Minn. 390. But the better view is that even such a presumption is unjustified and that the fact of relationship may simply modify evidence otherwise convincing. Allen v. Allen, 58 Wis. 202. And, in general, relationship is held to create not even a rebuttable presumption of agency. Francis v. Reeves, 137 N. C. 269; Ritch v. Smith, 82 N. Y. 627.

BANKRUPTCY - PRIORITY OF CLAIMS

Assignment BY WAGE-EARNER.§ 64 of the Bankruptcy Act of 1898 enumerates among debts accorded priority, "wages due to workmen, clerks, or servants, which have been earned within three months before, the date of the commencement of proceedings, not to exceed $300 to each claimant." Held, that one to whom such claim was assigned before the commencement of bankruptcy proceedings is entitled to priority of payment. Shropshire, Woodliff & Co. v. Bush, U. S. Sup. Ct., Jan. 7, 1907.

This is the first decision of the Supreme Court on this matter. It is clear that if the assignment had occurred after the commencement of the bankruptcy proceedings the assignee would be entitled to priority. In re Campbell, 102 Fed. Rep. 686. The present decision, however, must rest on the ground that the priority is attached to the debt and not to the person of the wage-earner, the statute merely describing the nature of the debt given priority. Courts reaching a different result have followed the precise language of the statute, holding that the wages must be "due to workmen, clerks and servants" when the bankruptcy occurred, if priority is to be allowed. In re Westland, 99 Fed. Rep. 399. This practically deprived the wage-earner of the assignability of his claim, a valuable right. Thus, while professing to construe the statute to protect him, the courts defeated their purpose. See In re Harmon, 128 Fed. Rep. 170. The principal case arrives at a more desirable construction of the clause,

more in accord with its spirit and not doing violence to its language. Though the weight of lower court decisions was against this result, it is not without support. In re Brown, 4 Fed. Cas. 1974; In re Harmon, supra.

BANKRUPTCY PROOF OF CLAIM - FILING of Proof. Held, that the presentation and delivery of proofs of claim to the trustee in bankruptcy within the year after the adjudication is a filing within the Bankruptcy Act, except as regards personal claims of the trustee, which must be filed with the referee within the year. J. B. Orcutt Co. v. Green, U. S. Sup. Ct., Jan. 7, 1907.

The result reached by the court is practical and seems justified by § 30 of the Act and General Order 21.

BANKRUPTCY RIGHTS AND DUTIES OF BANKRUPT - TITLE BEFORE APPOINTMENT OF TRUSTEE. - The federal Bankruptcy Act provides that the trustee of the estate of a bankrupt upon his qualification "shall be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt." In bankruptcy proceedings brought against him the plaintiff had failed to disclose any property, and no trustee was appointed. After his discharge he brought action in a state court for the value of services rendered prior to the bankruptcy proceedings. Held, that the plaintiff may maintain this action. Rand v. Iowa Central R. R. Co., 78 N. E. Rep. 574 (N. Y.).

The view has been expressed that during the period between adjudication of bankruptcy and the appointment of a trustee the property is in the custody of the law. Rand v. Sage, 94 Minn. 344; see COLLIER, BANKRUPTCY, 5 ed., 553. In the absence of any formal taking charge of the property such a theory seems untenable. The better view is that until the appointment of a trustee title remains in the bankrupt, but on the happening of that event the statutory provision requires that the rights of all parties be settled as though title had been in the trustee since the adjudication. Cf. Bank v. Sherman, 101 U. S. 403; Bryan v. Bernheimer, 181 U. S. 188. Thus in the principal case, though the bankrupt apparently has at present a legal right to sue, payment to him by the debtor would not protect the latter against suit by a later appointed trustee. The defendant, then, should be given some protection. It is possible that the debtor could protect himself by securing the appointment of a trustee before paying the judgment. If he is unable immediately to secure this, the court should protect him against further liability either by the form given to the original judgment or by a temporary injunction. Cf. Griffin v. Mutual Life Ins. Co., 119 Ga. 664.

BROKERS - STOCKS Carried on MaRGIN · - NATURE OF TRANSACTION. A broker bought and sold stock on margin for the defendants. Within four months before his bankruptcy a balance was struck in the account, which showed that he held stock for the defendants of a certain value, and that the defendants were indebted to him to a less amount. This the defendants paid and received the stock. The broker's trustee in bankruptcy brought suit to recover the stock, on the ground that title to it was in the broker and that its return to the defendants was a preference. Held, that title to the stock was in the customers, and that the defendants were not creditors within the meaning of the Bankruptcy Act of 1898, c. 541, § 1 (9). Richardson v. Shaw, 147 Fed. Rep. 659 (Ċ. Ċ. A., Second Circ.).

For a discussion of the principles involved, see 19 HARV. L. Rev. 529. Cf. also 7 ibid. 183; 15 ibid. 78.

CONFLICT OF LAWS - LEGITIMACY AND ADOPTION - LEGITIMATION SUBSEQUENT TO BIRTH. - A New York man deserted his wife and purported to marry a New Jersey woman, who bore him two children. Thereafter he became domiciled with his family in Michigan, obtained a divorce there from his New York wife without personal service and by default, and went through a second marriage ceremony with the New Jersey woman. This divorce and remarriage a New York court by decree refused to recognize. By Michigan law illegitimate children become legitimate by the subsequent marriage of their parents.

The children claimed New York realty under a devise as the "lawful issue" of their father. Held, that they do not take. Olmsted v. Olmsted, 51 N. Y. Misc. 309. See NOTES, p. 400.

CONFLICT OF LAWS Marriage — Jurisdiction for NULLIFICATION. A, an Englishwoman, was married in England to B, a domiciled Frenchman. This marriage was pronounced void by the French court, on the ground that B, who was not of full age by French law, had not obtained his parents' permission to marry. A then married C in England. C sought a decree of nullity on the ground that, as the French court had been without jurisdiction, A was still the wife of B. Held, that the marriage be annulled. Ogden v. Ogden, 23 T. L. R. 158 (Eng., P. D., Dec. 10, 1906).

A decree of annulment declaring, as it does, that no valid marriage ever existed, should be pronounced only by a court of the sovereign which purported to create the marriage. The difficulty lies in determining what is in fact such creating sovereign. The simplest view, and that prevalent in the United States, is that the jurisdiction where the ceremony was performed creates the marriage, and alone can annul. Cummington v. Belchertown, 149 Mass. 223. The English view, however, seems to be that if either party is domiciled in England that law alone applies; otherwise, the law of the husband's domicile at the time of the marriage. See Johnson v. Cooke, [1898] 2 Ir. 130; 13 HARV. L. REV. 604. This view often leads to the indefensible result that two countries are capable of creating and hence of annulling the marriage when the contracting parties are domiciled in different jurisdictions. See Bater v. Bater, 21 T. L. R. 517; DICEY, CONF. OF LAWS, 394. The illogical feature of the English view, in that it applies a peculiar rule to domiciled Englishmen, is brought out in the present case. The case is plainly right on the United States theory; indeed the language of the opinion is apparently based upon it. Cf. Linke v. Van Aerde, 10 T. L. R. 426; see DICEY, CONF. of Laws, 276, 277.

CONSTITUTIONAL LAW-Class LegislaTION — STOCK Transfer TAX. A New York statute imposed "on all sales, or agreements to sell, or memoranda of sales or deliveries or transfer of shares or certificates of stock in any domestic or foreign . . . corporation . . . on each share of one hundred dollars of face value or fraction thereof," a tax of two cents. Held, that the tax is unconstitutional. People ex rel. Farrington v. Mensching, 187 N. Y. 8. See NOTES, p. 408.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW-STATUTORY INDICTMENT IN ADJOINING COUNTY. - A statute provided that an indictment for lynching should be brought by the grand jury of a county adjoining that where the crime was committed. The defendant moved to quash such an indictment on the ground that the statute was unconstitutional. Held, that the statute is valid. State v. Lewis, 55 S. E. Rep. 600 (N. C.). See NOTES, p. 404.

CONSTITUTIONAL LAW-IMPAIRMENT OF OBLIGATION OF CONTRACTS CONTRACT BY STATE NOT TO DISCRIMINATE AGAINST FOREIGN CORPORATION. A statute imposed a graduated entrance fee upon foreign corporations, and provided that they should be subject to "all the liabilities, restrictions and duties which are or may be imposed upon " similar domestic corporations, and "have no other or greater power." The life of domestic corporations was twenty years. A foreign corporation paid the fee and entered the state. Three years thereafter the state imposed twice as heavy a license tax on foreign as on domestic corporations. Held, that this tax impairs the obligation of a contract by the state not to discriminate against the foreign corporation for twenty years. Four justices dissented. Am. Smelting & Refining Co. v. Colorado, U. S. Sup. Ct., Jan. 7, 1907. See NOTES, p. 405.

CONSTRUCTIVE TRUSTS-EFFECT OF STATUTE OF FRAUDS-EFFECT OF FRAUD. A, shortly before his death wishing to give certain land to the plaintiff, a daughter, did what he and the defendant, another daughter, thought was

effective to pass the legal title to it to the latter, upon her oral promise to hold it in trust for the plaintiff. A died intestate, and it was then discovered that the title to the land had not passed out of him. The defendant, whose intentions throughout the entire transaction had been fraudulent, refused to recognize the trust as to her interest as heiress-at-law. The plaintiff filed a bill to compel her to recognize the trust. Held, that because of the defendant's fraud the Statute of Frauds has no application, and the plaintiff's prayer should be granted. Crossman v. Keister, 79 N. E. Rep. 58 (Ill.). See NOTES, p. 403. CONTEMPT NATURE OF PROCEEDINGS DISOBEDIENCE BY BANKRUPT.In contempt proceedings for failure to obey a court order to deliver property to trustees, a bankrupt declared that she had no property. Held, that such proceedings are criminal in nature and contempt must be proved beyond a reasonable doubt. Moody v. Cole, 148 Fed. Rep. 295 (Dist. Ct., Dist. Me.). For a discussion of the principles involved, see 20 HARV. L. REV. 233.

CONTRACTS DEFENSE OF IMPOSSIBILITY - FRAUDULENT CONCEALMENT BY PLAINTIFF. The defendant contracted to sell the plaintiff coal from a designated colliery for shipment to Australia. The defendant had already contracted with the colliery for coal. Before either contract the colliery had agreed to sell for shipment to Australia to another dealer exclusively. This the plaintiff knew, but did not disclose to the defendant. On learning of the defendant's contract with the plaintiff, the colliery refused delivery, making the defendant's performance impossible. Held, that the plaintiff was guilty of fraudulent concealment and that the defendant is entitled to rescind. Scott, Fell & Co. v. Lloyd, 6 S. R. (N. S. W.) 447.

The reasoning of the decision goes beyond the present state of the authorities. Ordinarily, where means of information are within the reach of both, one of the contractors is not bound to disclose to the other facts which if known would influence his action. The rule is based largely on the difficulty in the application of a contrary one. See Laidlaw v. Organ, 2 Wheat. (U. S.) 178; but cf. Barwick v. Eng., etc., Bank, L. R. 2 Exch. 259. Aside from cases of fiduciary relations, the giving of a defense in exceptional circumstances seems to be governed by the court's sense of fairness rather than by any well-defined rule. See Dambmann v. Schulting, 75 N. Y. 55. An intention to reap self-benefit will not alone create a duty of disclosure. Neill v. Shamburg, 158 Pa. St. 263. Recent cases have distinguished suppression of a fact when inquiry is made from mere silence, giving a defense in the former case. Turner v. Green, [1895] 2 Ch. 205. The court seems justified, however, in making in the present case an additional exception to the general rule. For where, as here, one person induces another to contract with him, not disclosing his private knowledge of facts which will probably make performance an impossibility, and it subsequently becomes so, he should be without remedy for the non-performance. Cunningham v. Dunn, 3 C. P. D. 443.

CORPORATIONS - CORPORATIONS DE FACTO - SALE OF STOCK. — The plaintiff purchased stock in the defendant corporation, relying on an incorrect statement by its secretary that it had been legally incorporated. Held, that the plaintiff is entitled in equity to a rescission of the sale. Maine v. Midland Investment Co., 109 N. W. Rep. 801 (Ia.).

This case appears to be inconsistent with a somewhat similar case in the same jurisdiction which was discussed in 20 HARV. L. REV. 327.

CORPORATIONS DISTINCTION BETWEEN CORPORATION AND ITS MEMBERS LIABILITY FOR ACTS OF NEW CORPORATION FORMED BY MEMBERS OF OLD. The plaintiff was injured through negligent construction work alleged to have been sublet by the defendant corporation to the Atlantic Co., a corporation without capital formed by the members of the defendant corporation. The consideration was to be one-half per cent above the actual cost of the work. The object of the whole transaction was confessedly to avoid attachments. The jury were instructed that if the subletting was not bona fide, but

fictitious, in order to relieve the defendant from ordinary legal liabilities, and the defendant was really controlling the work, the verdict should be for the plaintiff. Held, that these instructions correctly submitted the question to the jury. Holbrook, etc., Corp. v. Perkins, 147 Fed. Rep. 166 (C. C. A., First Circ.).

Reference was recently here made to decisions sometimes, though erroneously, as it was contended, supposed to involve a disregard of the corporate entity. See 20 HARV. L. REV. 223. The point taken seems neatly illustrated by the present case; for the court, although quoting a statement that the corporate entity might sometimes be disregarded, finally placed its decision upon the valid ground that "the arrangement was merely a piece of circumvention which may be regarded either as a nullity or as making the Atlantic Construction Co. the agent or alter ego for whose acts the defendant as true principal is liable." That the result does not hinge upon an analysis of the component members of the corporate entity seems clear; for if, for example, in the present case a corporation composed of other individuals, or a man of straw, were substituted for the Atlantic Co., the result would certainly be unchanged. See McNeil, etc., Co. v. Crucible, etc., Co., 207 Pa. St. 493. The inference, then, is natural that the only force of the identity of the members of the two corporations is as evidence that the independent contractor agreement was merely colorable.

CORPORATIONs — StockholDERS' INDIVIDUAL LIABILITY to Corporation AND CREDITORS - LIABILITY ON UNPAID STOCK SUBSCRIPTIONS. A statute provided that where stock was issued below par the stockholder was bound to pay the sum necessary to complete the par value if required to satisfy the debts of the company. A took stock in a corporation at a value below par, on the agreement that he was subject to no further liability thereon. B, who participated in this transaction as a stockholder, later became a creditor of the corporation. The corporation became insolvent. Held, that B may recover from A the difference between what A paid for his stock and its par value. Easton Nat'l Bank v. Am. Brick and Tile Co., 64 Atl. Rep. 917 (N. J., Ct. Err. and App.). See NOTES, p. 401.

CORPORATIONS STOCKHOLDERS' RIGHTS INCIDENT TO MEMBERSHIP RIGHT OF PREEMPTION. - The majority stockholders of the defendant corporation voted to double the capital stock and to sell all the shares to an outsider at $450 a share — four and one-half times their par value. The plaintiff, a dissenting stockholder, was refused an opportunity to purchase the same proportion of the new stock that he held of the old stock. Held, that the plaintiff may recover from the corporation the difference between the fixed selling price and the market value on the day of the sale of his proportionate share of the new stock. Stokes v. Continental, etc., Co., 36 N. Y. L. J. 589 (N. Y., Ct. App., Nov. 13, 1906). See NOTES, p. 398.

On

CRIMINAL LAW SENTENCE REMANDING FOR NEW SENTENCE. an indictment for murder the defendant was found guilty of manslaughter. Upon a new trial granted on appeal he was found guilty of murder, and was sentenced to a longer imprisonment than could be imposed in the case of manslaughter. The defendant appealed. Held, that the case be remanded with directions to sentence for manslaughter. People v. Farrell, 109 N. W. Rep. 440 (Mich.).

In Michigan such a second verdict for murder is within the rule against double jeopardy. See People v. Knapp, 26 Mich. 112; 19 HARV. L. REV. 300. Therefore it is void unless it may be construed as a verdict for manslaughter. Since upon an indictment for murder manslaughter may be found, on the ground that the allegation of the greater crime includes the less, therefore a verdict for murder should amount to a finding of manslaughter when there can be no conviction for murder. A verdict naming the first degree of a crime has been held to be a finding of guilt in the second degree. Simpson v. State, 56 Ark. 8. The remaining difficulty of the length of the sentence might be remedied by holding the excess void under statute. MICH. COMP. L. § 11984; see People