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gan Savings Bank, 103 Mich. 109; see 19 HARV. L. Rev. 520. Since the bank knew that it had no legal right to make the collections, the present decision seems correct on the ground of a constructive trus A dictum, however, that even if the receipt were justified the bank would be a trustee seems wrong; for if the bank received the money in ignorance of the rights of third parties the relation of debtor and creditor would then arise. Richardson v. New Orleans Debenture Redemption Co., 102 Fed. Rep. 780.

CORPORATIONS STOCKHOLDERS INDIVIDUAL LIABILITY OF TRANSFERRER OF STOCK OF INSOLVENT BANK. A shareholder in a national bank after knowledge of its insolvency sold his stock to escape the statutory liability to assessment. More than two years later the bank failed, and the plaintiff as receiver brought suit to recover on the assessment. Held, that the defendant is liable only to those parties who were creditors before he transferred his stock. Three justices dissented. McDonald v. Dewey, U. S. Sup. Ct., May 28, 1906.

The rule limiting the liability of the transferrer to those persons who were creditors before the stock was transferred is a clear limitation of the general propositions of law made by the court in earlier cases. In those cases the statement was made that such a fraudulent transfer had no effect. Bowden v. Johnson, 107 U. S. 251; see Nat. Bank v. Case, 99 U. S. 628 ; Stuart v. Hayden, 169 U. S. I. Although in two of the cases cited the statements were dicta, the rule of law was laid down as well established. The present decision does not purport to overthrow the Bowden case, but that is, in reality, its effect. The court contends that the requirement of the keeping of a correct list of shareholders is for the benefit of persons dealing with the bank, and that creditors who contract do not look to former shareholders and should not have the benefit of their liability. The minority's contention that the statute either imposes liability up to the time of the bank's failure or not at all, seems hard to

Even though the court's conclusion be technically sound, which is doubtful, the result reached is unfortunate.

EMINENT DOMAIN COMPENSATION STRUCTURE PLACED UPON LAND BEFORE CONDEMNATION. - A village before starting condemnation proceedings constructed a reservoir on the defendant's land against his express command. Held, that the plaintiff must pay the defendant the market value of the land, as enhanced by the construction of the reservoir. Village of St. Johnsville v. Smith, 184 N. Y. 341.

This decision is based upon the rule that structures erected by trespassers belong to the land-owner. Graham v. R. R. Co., 36 Ind. 463. Since the plaintiff entered without any authorization, it is considered in no better position than any other trespasser. Most courts, however, hold that the plaintiff is not an ordinary trespasser, since it can acquire the land under its power of eminent domain, so that the owner is entitled to redress merely for the land and any incidental damage from the trespass. Newgrass v. Ry. Co., 54 Ark. 140. It would seem that the “just compensation" required by the Constitution means this lower measure of damages, and not that the plaintiff should be penalized. See LEWIS, EMINENT DOMAIN, 2 ed., 1144-1145; R. R. Co. v. Armstrong, 46 Cal. 85. A distinction which has been applied when a railroad is the trespasser is that, as the company wants only an easement, it does not intend to make its structures of such permanency as to become part of the realty. Justice v. R. R. Co., 87 Pa. St. 28. Of course the land-owner can always recover, sometimes in trespass, sometimes in the condemnation proceedings themselves, any incidental damage resulting from the entry. Bethlehem Co. v. Yoder, 112 Pa. St. 136.

EQUITY – JURISDICTION Bill BY RECEIVER AGAINST DELINQUENT DIRECTORS OF CORPORATION. — The complainant, as receiver of a bankrupt corporation, filed bills in equity against the defendants to recover damages for alleged illegal conduct in the course of their duty as directors of the corporation. The defendants objected that the court had no jurisdiction, on the ground L'at the proper remedy was an action at law. Held, that the action is within the jurisdiction of equity. Emerson v. Gaither, 64 Atl. Rep. 26 (Md.).

Where the directors of a corporation have been guilty of misfeasance the corporation may file a bill in equity to compel them to account therefor. Citizens Loan Assn. v. Lyon, 29 N. J. Eq. 110. There may be also a concurrent remedy at law. Thompson v. Greeley, 107 Mo. 577. And in some code states the nature of the action may be determined by the relief demanded. Horn Silver Mining Co. v. Ryan, 42 Minn. 196. Some cases tend to restrict the remedy to an action at law only, unless clear and special grounds for equitable relief are shown. Dykman v. Keeney, 154 N. Y. 483. În general a trustee, receiver, or assignee in bankruptcy succeeds to the title of the corporation and to its rights of action. White v. Haight, 16 N. Y. 310. It follows, therefore, that he may assert against delinquent directors whatever rights of action the corporation could have asserted, and enforce them by the appropriate remedy. Stephens v. Overstolz, 43 Fed. Rep. 771. The better procedure, however, seems to be a bill in equity, because of the complicated questions which often arise, and in order to avoid multiplicity of suits. The tendency of authority is this way. Briggs v. Spaulding, 141 U. S. 132 ; Appeal of McCarty, 110 Pa.

St. 379.

EQUITY — SPECIFIC PERFORMANCE LACK OF MUTUALITY OF REMEDY AS Defense. — In consideration of the plaintiff's agreement to furnish the defendant electric controllers for fifteen years, the defendant bound himself, with stipulation for liquidated damages, not to manufacture such controllers. The defendant did so manufacture and the plaintiff sought to enjoin him. Semble, that, as plaintiff cannot be decreed specifically to perform his agreement, there is not the requisite mutuality of remedy. General Electric Co. v. Westinghouse Electric Co., 144 Fed. Rep. 458 (Circ. Ct., N. D. N. Y.). See Notes, p. 57.

EVIDENCE - ADMISSIONS - OFFER TO COMPROMISE IN CRIMINAL CASE. In a prosecution for rape the state gave evidence of an offer of money by the defendant to the foster-father of the prosecutrix to quash the proceedings. Held, that the evidence was wrongly admitted. Sanders v. State, 41 So. Rep. 466 (Ala.).

In civil actions an offer to compromise is not receivable as an admission of liability, either express or by conduct. Tennant v. Dudley, 144 N. Y. 504. But an unqualified statement conceding a claim of the opponent's is receivable, though it occur as part of the attempt to compromise. Rose v. Rose, 112 Cal. 341. The reason commonly assigned is that offers to compromise are not evidential ; they imply a desire for peace, not a concession of liability. See 2 WiGMORE, Ev., § 1661. But such offers may be highly evidential, as where the offer amounts to a large part of the claim. A sounder view is that such offers are privileged by the public policy that disputes be amicably adjusted. Perkins v. Concord Ry., 44 N. H. 223. Though as an original question the reason for this privilege might seem to extend to unqualified as well as to hypothetical offers, courts have confined it to the latter. Dickinson v. Dickinson, 9 Met. (Mass.) 471. The rule in criminal cases depends upon the theory accepted. If such offers do not evidence civil liability, neither do they evidence criminal guilt. The only square decision in point, besides the one under discussion, so holds. Wilson v. State, 73 Ala. 527. As matter of privilege, however, it is not public policy that criminal prosecutions be compounded, especially where the state, the real injured party, is not offeree.

ExtRADITION — INTERNATIONAL EXTRADITION — EXTRADITION FOR ONE OFFENSE AND IMPRISONMENT FOR ANOTHER. The relator was indicted for conspiring to defraud the United States, and in another indictment for procuring the admission of goods into the United States in violation of statute. He was duly convicted and sentenced on the conspiracy charge, and having been released on bail pending an appeal Aed to Canada after the affirmance of his conviction. The requisition of the United States was refused. Thereupon he was demanded for the crime charged in the second indictment and was surrendered to the United States. While in the hands of an officer he was arrested

seven.

on a warrant sworn out on the conspiracy charge, and was imprisoned. Held, that the relator is improperly detained. In re Charles C. Browne, 35 N. Y. L. J. 1695 (Circ S. D. N. Y., Aug., 1906).

Article three of the convention of 1889 with Great Britain declares that “ No person surrendered . . . shall be triable or be tried for any crime or offense committed prior to his extradition other than the offense for which he was surrendered," until he has had an opportunity to leave the country. The government contended that by virtue of the omission of the word “punished "a

person extradited for a specific offense might be punished on a conviction of another offense obtained prior to his extradition. But by article seven of the same convention there is provision for the extradition of criminals whose sentence is unexecuted, and the government's contention would permit indirect action under article three when there had been failure to extradite under article

Before the convention of 1889 it had been decided that a surrendered person could be arrested or tried only for the offense for which he was extradited. United States v. Rauscher, 119 U. S. 407. As a construction favorable to the government would stultify article seven and change the previously existing law without a clear expression of such intention in the convention, the court's decision seems eminently sound.

ILLEGAL CONTRACTS - EFFECT OF ILLEGALITY WHETHER ILLEGALITY BARS Recovery FOR FRAUD. — The defendants induced the plaintiff to bet upon a foot-race between two of their number by telling him that it was prearranged that a certain one should win. The other contestant won, as the defendants had all the time planned that he should. Upon discovering that the defendants constantly held such races under their auspices, the plaintiff sued to recover his losses. Held, that the plaintiff is not barred by his own illegal conduct. Hobbs v. Boatright, 93 S. W. Rep. 934 (Mo., Sup. Ćt.). See Notes, p. 60.

INFANTS CONTRACTS INFANT ENJOINED FROM BREACH OF CONTRACT. - The plaintiff, a milk-dealer, entered into a contract with the defendant, a minor, for the latter's service in delivering milk. The contract stipulated that the defendant, on leaving the employment, was not to solicit the trade of the plaintiff's customers during a stated period. The defendant left the employment and solicited the trade of the plaintiff's customers within the prohibited time. Held, that the infant should be enjoined. Mutual Milk and Cream Co. v. Prigge, 112 N. Y. App. Div. 652. See Notes, p. 64.

LANDLORD AND TENANT CovenANT IN LEASE - DAMAGES FOR PERSONAL INJURIES. As a result of the landlord's failure to heat the apartments, as he had promised to do, the lessee's infant child caught pneumonia and died. The lessee sued to recover for the death of the child, for physician's fees, and for the services of an undertaker. Held, that such damages are too remote. Dancy v. Walz, 112 N. Y. App. Div. 355.

The refusals to give damages for personal injuries resulting from the breach of a covenant to repair leased premises have been based on the argument that the damages were too remote. O'Gorman v. Teets, 20 N. Y. Misc. 359. There is some difference, however, between such a covenant and one to heat the premises, and it is certainly arguable that sickness and death may be the immediate and natural results of a breach of the latter. Moreover, landlords have been held liable when personal injuries were caused by the breach of covenants to repair such parts of premises as remained under their own general control. Looney v. McLean, 129 Mass. 33; Dollard v. Roberts, 130 N. Y. 269. There seems to be good reason for regarding the present case in the same way, considering the control exercised by the landlord over the heating plant in a modern apartment house. The court treated the covenant to heat as identical in principle with one to repair, and did not consider the apparently valid distinction noted above.

LEGACIES ADEMPTION WHETHER DOCTRINE RESTS ON INTENTION WHEN INVOKED IN FAVOR OF STRANGER. — A testator left a legacy to his adopted daughter, and made her and a third person residuary legatees. After making the will he made numerous gifts to the daughter. Held, that, as a matter of law, neither the bequest nor the residuary legacy to her is adeemed by the amount of such gifts. Pomfrey v. Fryer, 54 W. R. 625 (Eng., Ch. D., May 17, 1906).

It is well settled that whether or not a legacy is adeemed rests on the intent of the testator. Cowles v. Cowles, 56 Conn. 240 ; Richards v. Humphreys, 15 Pick. (Mass.) 133. The presumption is that, where a gift is made to a child by a testator in his lifetime, it is intended as a satisfaction pro tanto of a legacy previously given in a will, and the burden of proof is on the person seeking to show the contrary. See Carmichael v. Lathrop, 108 Mich. 473 ; 10 HARV. L. Rev. 52. The present decision is supported by one other. Meinertzagen v. Walters, L. R. 7. Ch. 670. These are apparently the only cases which lay down as a rule of law that the doctrine of ademption will not be applied where the result is to increase the gift to a residuary legatee who is a stranger. Unless the doctrine of ademption is to be repudiated altogether, it appears more in accord with principle to regard the circumstance that the gift to a stranger will be increased if the legacy is adeemed, merely as evidence of the testator's intention.

MortgAGES — TRANSFER OF RIGHTS AND PROPERTY — SURRENDER OF LEASE GIVEN UNDER STATUTE BY MORTGAGOR. — Under an English statute giving the right, a mortgagor leased the mortgaged premises for a term of years. Before the end of the term, the lessee's executors surrendered the premises to the devisees of the mortgagor. The mortgagee sued the lessee's executors for rent. Held, that the mortgagee can recover, since a surrender could only be to him, the immediate reversioner. Robbins v. Whyte, 94 L. T. 287 (Eng., K. B. D., Nov. 29, 1905).

At common law a mortgagor cannot make a lease which will bind the mortgagee. Rogers v. Humphreys, 4 Ad. & E. 299. But by the English Conveyancing Act of 1881 a mortgagor in possession might make a lease binding on the mortgagee. Wilson v. Queen's Club, (1891) 3 Ch. 522. The mortgagee, after the making of the lease, holds a reversionary estate expectant on the term granted by the lease. Municipal Permanent Investment Bldg. Soc. v. Smith, 22 Q. B. D. 70. The general rule is that a surrender must be made to the holder of the immediate reversion. Cadle v. Moody, 30 L. J. Exch. 385. In accordance with this rule the court holds that the surrender must be made to the mortgagee in order to be valid. The fact that the statute has given the mortgagor the right to make a valid lease does not necessarily imply that the right to accept surrenders of such leases is also given. For, under the common law, a right to lease given to the mortgagor by the mortgage instrument does not give a right to accept a surrender. See Miles v. Murphy, 5. Ir. Law 383. The court has properly construed the statute strictly, limiting the change in the common law to the express provisions of the act.

MUNICIPAL CORPORATIONS — LIABILITY FOR TORTS - PRIVATE Nuisance MAINTAINED IN HIGHWAY BY INDEPENDENT CONTRACTOR. — A sewer contractor unnecessarily and wantonly piled dirt in the street and on a vacant lot adjoining the plaintiff's premises. Surface water was thereby precipitated into the plaintiff's cellar, causing damage. The obstruction remained for eight months to the knowledge of the city and in spite of complaint. Held, that the city is liable for a private nuisance. Frick v. Kansas City, 93 S. W. Rep. 351 (Mo.).

A municipal corporation is bound to keep its streets in reasonably safe condition. The duty to repair within a reasonable time after notice of 'defect is a positive one and cannot be delegated. City of Chicago v. McCarthy, 75 Ill. 602. It follows that the municipality is liable for damage due to defective highways, though caused by the negligent or wilful conduct of an independent contractor. Storrs v. City of Utica, 17 N. Y. 104. The decided cases would seem to indicate that this duty is owing only to travelers on the highway, their persons and property. The present case goes a step further in extending the duty to abutters.

tractor.

It finds support in one English case. Hardaker v. Idle District Council, [1896) 1 Q. B. 335. There seems to be no valid reason for confining the doctrine. This duty is not one of insurance to be narrowly applied. Except where necessarily incident to public improvement, a city owes the ordinary duty not to maintain a private nuisance. Ashley v. Port Hudson, 35 Mich. 296 ; Miller v. Mayor of N. Y., 109 U. S. 385. The assimilation of this duty to the former would merely prevent a municipality from shielding itself behind an independent con

For another ground for reaching the desirable result of the principal case, see 15 HARv. L. Rev. 486.

PATENTS — INFRINGEMENT - PATENT ON IMPROVEMENT ISSUED PRIOR TO PATENT ON ORIGINAL DEVICE. - An inventor applied for a patent on device A. Pending proceedings, he applied for and obtained a patent on an improvement consisting of a combination of device A with B. Subsequently he was granted the patent first applied for. After the expiration of the patent on the combination, the defendant used this combination. Thereupon an assignee of the two patents sought to enjoin him on the ground that he was infringing the unexpired patent on A. Held, that upon the expiration of the patent on the combination of A and B the patentee has no further rights in that combination notwithstanding the validity of his unexpired patent upon A. Thomson-Houston Electric Co. v. Nlinois Tel. Const. Co., 143 Fed. Rep. 534 (Circ. Ct., N. D. III.).

There are two possibilities. Device A may have been an essential element of the prior patent on A B, or it may not have been. On the latter assumption the subsequent patent on A was warranted, and any user of that device before the patent thereon expired, would constitute a violation of the patentee's rights. However, A was apparently an essential element of the prior patent, since that patent is treated merely as an improvement. Ther ore the bsequent grant of letters patent on A alone must have been void, since it would amount to double patenting. Palmer Pneumatic Tire Co. v. Lozier, 90 Fed. Rep. 732. While, therefore, the decision of the court that the use of the improved device after the expiration of the first patent was lawful, seems correct, the assumption that device A was still protected is open to question. The patentee cannot lose his exclusive rights in the improvement and at the same time retain those rights in that which forms the basis of the improvement.

PLEADING – DEMURRERS ALLEGATION OF FOREIGN LAW. - A New York declaration to which there was a demurrer contained an erroneous allegation as to Maryland law. Held, that the demurrer does not admit

the truth of an allegation as to the law of another state. K’nickerbocker Trust Co. v. Iselin, 185 N. Y. 54.

This decision appears unique. The exact opposite is well-established law. Liegeois v. McCracken, 1o Fed. Rep. 664. Foreign laws, not being within judicial cognizance, must be proved as facts on trial; but, once having been proved in evidence, no witness can conclude the court as to their proper interpretation. Laing v. Rigny, 160 U. S. 531; Eastern Building & Loan Assu. v. Williamson, 189 U. S. 122. In the principal case it is decided as a mere "corollary." of that proposition that no demurrer to an allegation of foreign law can be final. And for this is quoted, as authority, a case absolutely distinguishable. Cf. Finney v. Guy, 189 U. S. 335. In that case a plaintiff, having in his declaration set out sections of foreign statutes, added a further allegation as to their intent. Upon demurrer the statutes were held admitted as alleged ; but being now before the court exactly like facts proved on trial, the added allegation as to their meaning was of matter come within judicial cognizance, and therefore not admitted by demurrer. In the principal case, on the contrary, the allegation of foreign law stood wholly apart from proved facts, and being therefore outside the court's judicial notice, should have been admitted by demurrer.

Police PowER — EXTENT - STATUTE SEPARATING WHITES AND NEGROES IN PRIVATE INSTITUTIONS OF LEARNING. A Kentucky statute made it an offense to conduct any institution of learning in which both white and colored persons were received as pupils unless it was conducted in separate branches. Held, that the statute is valid as a reasonable exercise of the

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