law of the ceded territory, but as there had been no legislation by Congress upon this matter the law existing at the time of the transfer was still in force. The defendant therefore was clearly liable. The hesitation of the court to declare whether the Act of 1880 or the earlier law governed was probably due to a former decision of questionable soundness. Cf. Barrett v. Palmer, 135 N. Y. 336.

CONFLICT OF LAWS - EXECUTION OF POWER WHAT LAW DETERMINES SUFFICIENCY OF WILL AS EXECUTION OF POWER. — Testatrix, who had under an English will a testamentary power of appointment over personalty, died domiciled in France, leaving an unattested codicil which was valid by French law and which contained a universal legacy, but made no reference to the power or the property subject thereto. Held, that the codicil does not constitute an exercise of the power, § 27 of the Wills Act not applying. In re Scholefield, 21 T. L. R. 675 (Eng., Ch. D., July 14, 1905). See NOTES, p. 122.

CONFLICT OF LAWS - JURISDICTION - QUASI IN REM GARNISHMENT of DEBT OWED BY NON-Resident. A North Carolina debtor of a North Carolina creditor, while temporarily visiting Maryland, was garnisheed by a Maryland creditor of his obligee. By statute the non-resident debtor had ample opportunity to litigate the claim of the garnishment judgment. Held, that, under the "full faith and credit" clause of the Federal Constitution, the Maryland garnishment judgment is a bar against a subsequent action on the original indebtedness in North Carolina. Two justices dissented. Harris v. Balk, 198 U. S. 215.

In holding that a debt may be garnisheed wherever the garnishee may be found, the Supreme Court takes the logical step from its previous position that the debt owing to a non-resident may be garnisheed at the domicile of his debtor. Chicago, etc., Ry. Co. v. Sturm, 174 U. S. 710. The court finally repudiates the artificial doctrine of the situs of a debt, and bases the jurisdiction on the court's control over the garnishee-debtor. The fundamental objection is still unanswered, that the power to discharge the debt, which is the effect of allowing the garnishment judgment as a plea in bar, can be founded only on control over both the debtor and the creditor. See 17 HARV. L. REV. 188. The decision is, however, salutary in settling the deplorable conflict as to the validity of these garnishment proceedings. Further, the Court takes pains to protect the nonresident debtor-creditor by its requirement of due notice from the garnishee, to enable him to contest the claim. There still remains for settlement the diversity as to the materiality of the place for payment of the debt in conferring jurisdiction. Doubtless, the Supreme Court will produce uniformity on the whole subject by sustaining the jurisdiction in all cases. Cf. Wyeth, etc., Co. v. Lang & Co., 127 Mo. 242; Tootle v. Coleman, 107 Fed. Rep. 41.

CONFLICT OF LAWS - PERFORMANCE OF CONTRACTS - PROVISION RENDERING INSURANCE POLICY SUBJECT TO FOREIGN LAW. The defendant, a life insurance company incorporated under the laws of New York, issued a policy in Australia to the plaintiff, providing that he receive an equitable proportion of its surplus at the end of a specified period, and expressed to be subject to the laws" of the former state. Subsequently the legislature of New York enacted that a decree for an accounting by an insurance company be granted only upon application of the Attorney-General. At the end of the specified period the plaintiff filed a bill in a New South Wales court asking for an account of the proportion of the defendant's surplus due to him. Held, that the New York statute is a bar to the plaintiff's bill. Johnson v. Mutual Life Ins. Co., 5 N. S. W. 16.

Where, as in the present decision, the provisions of an insurance policy are admittedly valid under the laws of the place of contracting, an express stipulation that the obligations thereunder shall be defined by the laws of a foreign state, is regularly enforced. Phinney v. Mutual Life Ins. Co., 67 Fed. Rep. 493; Mutual Life Ins. Co. v. Hill, 118 Fed. Rep. 708. The New York court has interpreted the statute in question to affect a change in the law of procedure

only Swan v. Mutual, etc., Association, 155 N. Y. 9. Whether it became a term of the contract depends therefore solely on whether the express provision properly includes a change in procedure as well as in substantive law. According to a principle of the conflict of laws only the rules of substantive law applicable to a contract may differ from the law of the forum. Hoadley v. Northern Transportation Co., 115 Mass. 304. Consequently, if this statute is interpreted to be a part of the contract, the plaintiff's only remedy is in New York. The clause in the policy is ambiguous, and if construed most strongly against the insurer, according to the general rule, seems not to include a statutory regulation of procedure restricting the remedy of the insured to a foreign jurisdiction. But aside from the statute the court might properly have denied an account in a controversy concerning the internal management of a foreign corporation. Clark v. Mutual, etc., Association, 14 App. D. C. 154.

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CONSTITUTIONAL LAW IMPAIRMENT OF THE OBLIGATION OF CONTRACTS CHANGE OF REMEDIES. - A Maryland statute made each shareholder of a trust or banking corporation liable in an action at law to any creditor of the corporation for double the par value of the stock held. Á subsequent statute, which changed the remedy to a bill in equity by all the creditors against all the shareholders, was made retroactive in effect so as to abate all actions at law then pending. Held, that the statute is unconstitutional. Myers v. Knickerbocker Trust Co., 139 Fed. Rep. 111 (C. C. A., Third Circ.). Though the Court of Appeals of Maryland recognized that the statutory liability of shareholders to creditors of a corporation is contractual in its nature, yet it decided that the statute here involved did not impair the obligation of contracts. Miners' & Merchants' Bank v. Snyder, 59 Atl. Rep. 707. A distinction was early taken between the obligation of a contract and the remedy to enforce the obligation. See Sturges v. Crowningshield, 4 Wheat. (U. S.) 122,

200.

From this, some courts inferred that the remedy could be changed at will or absolutely withdrawn. See Read v. Frankfort Bank, 23 Me. 318, 321. But the federal courts, followed by the decided weight of authority, take the position that the remedy existing when the contract was made is part of the obligation. Edwards v. Kearzey, 96 U. S. 595. Clearly, therefore, all remedy cannot be taken away. See Call v. Hagger, 8 Mass. 423, 430. The state may, however, alter the form of the remedy or limit the time for its application. Paschall v. Whitsett, 11 Ala. 472, 478. It may likewise provide a new or more effective remedy, as this could in no way impair the obligation. But in professing to change merely the remedy the state must not impair rights accruing under the contract; and the substituted remedy must be substantially as effective as before. Western Nat. Bank of New York v. Reckless, 96 Fed. Rep. 70. In the case under consideration the obligation seems clearly impaired.

CONSTITUTIONAL LAW -Vested Rights LegislatiVE AUTHORIZATION OF NUISANCES. The defendant railroad located its main line, together with a freight yard and depot, near enough to the plaintiff's premises to cause her serious inconvenience and discomfort. Held, that the plaintiff may recover for such injury, although the value of her land and buildings has not been diminished. St. Louis, etc., Ry. Co. v. Shaw, 88 S. W. Rep. 817 (Tex., Civ. App.). See NOTES, p. 127.

CONTRACTS - CONSTRUCTION

- IMPLIED PROMISE TO USE DILIGENCE IN FORWARDING TO COMMISSION AGENT. -A company engaged the plaintiff to sell goods for it on commission, but was so negligent in not delivering on time, that the plaintiff failed to earn many commissions he otherwise might have obtained. For this the plaintiff brought action. Held, that he cannot recover, since no promise to use due diligence can be implied from the contract to employ. Byrns v. United Telpherage Co., 105 N. Y. App. Div. 69.

The general rule is that a promise will be implied whenever it is necessary to give to the transaction the effect which both parties intended. Ogdens, Ltd. v. Nelson, [1903] 2 K. B. 287. On this principle, where a doctor sold his practice in consideration for a part of the future profits, the court implied a promise by the vendee "to take common and ordinary care to carry on the business so

as to realize receipts"; and the vendee was held liable for going out of practice. M'Intyre v. Belcher, 14 C. B. (N. S.) 654. Similarly a contract to employ a commission agent has been held to include an implied promise to furnish goods. Turner v. Goldsmith, [1891] ! Q. B. 544. If, then, the company had entirely stopped sending goods, it would have been liable. But, so far as the parties are concerned, the effect of not sending any goods is equivalent to that of sending them so late that no one will buy. In each case, the plaintiff loses commissions through the default of the defendant; and in each, the original agreement is shorn of "the effect which both parties intended." It would seem, therefore, that a clearer instance of an implied promise could hardly be found.

CONTRACTS DEFENSES - IMPOSSIBILITY BY DOMESTIC Law. A lessee covenanted to pay certain rent and to use the demised premises for no purpose except that of a saloon. At the time the lease was executed a law was in force by which any county might adopt prohibition by popular vote. Before the term began, but after the lease was executed and delivered, the county, in which the demised premises were, did so adopt prohibition and thereby rendered it impossible to use the premises for a saloon. Held, that the lessee is not absolved by such impossibility from either covenant. Houston Ice, etc., Co. v. Keenan, 88 S. W. Rep. 197 (Tex., Sup. Ct.).

The court treats an impossibility created by the application of domestic law as analogous to a supervening impossibility of fact, and to determine whether performance should be excused applies the test of ability to foresee. For a discussion of the principles involved, see Notes, 18 Harv. L. Rev. 384.

COPYRIGHT INFRINGEMENT MUSICAL COMPOSITION. - The plaintiff brought suit to restrain the infringement of copyrights of two songs, which the defendant company had reproduced and sold in the form of perforated records, designed for use with mechanism to play the compositions on a musical instrument. Held, that a musical composition is not subject to copyright, but only its material embodiment in the form of a writing or print, and that the perforated sheet is not an infringement of such copyright. White-Smith Pub. Co. v. Apollo Co., 139 Fed. Rep. 427 (Circ. Ct., S. D., N. Y.).

At common law, the owner of an unpublished composition has an absolute property therein, but this right is lost on publishing. DRONE, Copyrights 102, 116. Congress has power to secure "for limited times to authors and inventors, the exclusive right to their respective writings and discoveries." U. S. Const., Art. 1, § 8. The term "writings" includes all forms of writing, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. Lithographic Co. v. Sarony, 11 U. S. 53. The musical conception, then, as an idea, is not subject to copyright. Ditson Co. v. Littleton, 67 Fed. Rep. 905. At the time of publishing the composition, a statutory copyright may be acquired, which gives the proprietor of any musical composition the exclusive liberty of copying and vending the same. U. S. Comp. St. 1901, § 4952. A copy is that which comes so near to the original as to give every person seeing it the idea created by the original." West v. Francis, 5 Ban. & A. 737, 743. The perforated roll does not suggest the original to the eye, but is a mere part of the mechanism intended to produce the sound of the melody. The decision reached by the court is logical, and is supported both in England and in this country. Boosey v. Whight, [1900] 1 Ch. 122; Kennedy v. Mc Tammany, 33 Fed. Rep. 584.

CORPORATIONS FOREIGN CORPORATIONS - CONDITIONS UPON RIGHT TO DO BUSINESS: WHETHER COMPLIANCE CREATES A NEW CORPORATION. - A Kentucky statute required that no foreign railroad corporation should operate within the state until it should have become a corporation of the state, and provided that it might become incorporated by filing a copy of its charter, and that "thereupon . . . such company shall at once become and be a corporation, citizen, and resident of this state." A foreign railway company complied with the statute, but, as a foreign corporation, paid a corporation franchise tax. Held, that the railway is not liable to pay a second franchise tax,

since it has not become a separate domestic corporation. Commonwealth v. Chesapeake, etc., R. R. Co., 27 Ky. Law Rep. 1084.

A state's right to dictate the conditions upon which a foreign corporation may do business enables it to require reincorporation as a domestic corporation. Whether compliance amounts to more than a license to the foreign corporation is a question of legislative intent, but statutes in substantially the same language have been generally construed as creating within the state a second distinct corporate entity. Debnam v. Southern, etc., Tel. Co., 126 N. C. 831. The present decision escapes some of the curious anomalies which follow the general view. See 13 HARV. L. REV. 597. But it would seem that an equally just result might have been reached, avoiding double taxation, through a more obvious construction of the statute: that as a condition precedent to entering Kentucky, the foreign corporation formed a new domestic corporation which was taxable; that the old corporation, not doing business in the state, was not taxable; and that not the second tax, but the first, was void. The case seems distinguishable from a late decision of this court holding that such a corporation as the defendant is not within a statute levying an organization tax. Cf. Cincinnati, etc., Ry. Co. v. Commonwealth, 26 Ký. Law Rep. 1106.

DOMICILE - GOVERNMENT OFFICIAL AT WASHINGTON. — On a petition for divorce, it appeared that the petitioner had left Tennessee with his family in 1882. Since that time he had lived in Washington, where he held a civil service position in the Treasury Department. He had made three short trips to Tennessee, and had voted there at those times. He testified that it had always been his intention to return to Tennessee if he should lose his position. tion 4203 of the Code provides that a divorce may be granted where the petitioner has resided in the state for the two years next preceding the filing of the petition. Held, that the petitioner has lost his domicile in Tennessee, and the court is without jurisdiction. Sparks v. Sparks, 88 S. W. Rep. 173 (Tenn.).

Sec

Divorce is regulated by the law of the domicile of the parties. Le Mesurier v. Le Mesurier, [1895] A. C. 517. Residence as used for the purposes of divorce is equivalent to domicile. Shaw v. Shaw, 98 Mass. 158. Domicile means a person's legal home. It requires both the animus and the factum. Bell v. Kennedy, L. R. 1 H. L. Sc. 307. The intention is itself a question of fact, to be determined by evidence, the declarations of the party not being conclusive. In re Craignish, [1892] 3 Ch. 180. In England an intention to remain permanently is necessary. Bell v. Kennedy, supra. In the United States a less settled intention will be sufficient, as, for instance, to remain while one is working in a town, or while a student, provided the person has no other home. Wilbraham v. Ludlow, 99 Mass. 587; Putnam v. Johnson, 10 Mass. 488. The Tennessee court seems to have considered that the acquisition of an actual home in Washington with the intention of remaining there for an indefinite time countervailed declarations of intention to return to Tennessee upon the happening of an uncertain future event. Cf. Mooar v. Harvey, 128 Mass. 219. The result seems consistent with the general conception of this subject held by the American courts.

A statute pro

ELECTIONS DISCRIMINATION IN FORM OF BALLOT. vided that squares be printed opposite the names of parties on the official ballot, and that citizens who so desired might vote a straight ticket by marking a single cross. Held, that this provision does not impair the freedom and equality of elections. Oughton v. Black, 61 Atl. Rep. 346 (Pa.).

A difference in the labor of preparing a ballot is not conclusive of real impairment of the constitutional principle of freedom and equality of elections. See Todd v. Election Commissioners, 104 Mich. 474. Since the ballot must be limited in size, a statute that restricts representation on it to parties that received a certain percentage of the vote at the last election is reasonable so long as the voter may insert other names at will. Plimmer v. Poston, 58 Oh. St. 620. But if he is confined to the printed names, the better view is that his freedom of choice is impaired. Lamar v. Dillon, 32 Fla. 545. A law that names of candidates nominated by two parties be printed but once on the ballot

is sound, although the voter may be inconvenienced thereby. Runge v. Ander son, 100 Wis. 523. A statute like that in the present case has been upheld. Ritchie v. Richards, 14 Utah 345. But one with an added proviso invalidating ballots containing other marks was declared unconstitutional as tending to disfranchisement, since a cross opposite the name of a party that had nominees for less than the full number of offices would cast no vote for the others, and an attempt to fill in the blanks would invalidate the whole ballot. Eaton v. Brown, 96 Cal. 371. These illustrations go to show that mere inconvenience is not impairment, and fully support the reasoning of the decision under consideration. ESTOPPEL- PARTIES ESTOPPED ESTOPPEL AGAINST STATE AND UNITED STATES. In accordance with an established custom, but under a misconstruction of law, accounts of a marshal, covering certain services rendered by his deputies, were approved by the court to which they had been presented at intervals during his term of service, and were allowed by the proper officials of the Treasury Department. The money was paid by the government with knowledge that the greater part of it would be paid over by the marshal to his deputies. In an action by him, five years after his retirement from office, during which time the government had made no complaint of these payments to him, it set them up as a counterclaim. Held, that it is estopped. Walker v. United States, 139 Fed. Rep. 409 (Circ. Ct., M. D., Ala.). See NOTES, p. 126.

EVIDENCE - DOCUMENTS - CARBON COPIES AS DUPLICATE ORIGINALS. - Semble, that in an action of assumpsit against a carrier for loss of goods, a carbon copy of the letter sent to the carrier notifying it of the loss is admissible as a duplicate original. Chesapeake & Ohio Ry. Co. v. Stock & Sons, 51 S. E. Rep. 161 (Va.). See NOTES, p. 123.

EVIDENCE DOCUMENTS RECITAL IN ANCIENT DEED NOT ADMISSIBLE TO PROVE RELATIONSHIP. An ancient deed reciting that the grantors were heirs of a former owner was offered as evidence of such fact. There was no proof that possession of the premises had been held under the deed. Held, that the evidence is not admissible. Lanier v. Hebard, 51 S. E. Rep. 632 (Ga.). Ancient deeds have been admitted in some jurisdictions as evidence of a relationship therein recited, though the courts have differed as to the requirement of possession under them as a condition precedent to their admission. Deery v. Cray, 5 Wall. (U. S.) 795; Scharff v. Keener, 64 Pa. St. 376; contra, Fort v. Clarke, Russ. 601. Although the court in the principal case might have excluded the evidence on the sole ground that possession had not been shown, yet it went further and intimated that even if possession had been shown the evidence would not have been admitted. This position seems sound. Recitals of relationship in a recent deed are generally held inadmissible. Costello v. Burke, 63 la. 361. There would appear no reason for a different rule in the case of ancient deeds. The fact of ancientness should be effective merely to authenticate the instrument, and should not remove the necessity of complying with the requirements of the pedigree rule. It is to be observed that in most of the cases where the evidence has been received this rule has not been infringed. Cf. Fulkerson v. Holmes, 117 U. S. 389.

EXECUTORS AND ADMINISTRATORS RIGHTS EXERCISE OF RIGHT OF RETAINER AGAINST JUDGMENT CREDITOR. The plaintiff, in a suit upon a debt, recovered judgment de bonis testatoris against the defendant, who was the executrix under a will. The defendant herself was owed a debt by the testator, but did not plead plene administravit or a right of retainer. Later the plaintiff obtained an order for the administration of the testator's estate, which proved to be insolvent. The defendant thus claimed to be entitled to exercise her right of retainer against the plaintiff. Held, that she cannot do so. In re Marvin, 21 T. L. R. 765 (Eng., Ch. D., Aug. 10, 1905).

The common law right of an executor to retain from the assets of the estate in priority to other creditors of equal degree an amount owed him by the testator, though abolished or modified by statute in about all the states of this coun