AGENCY TERMINATION OF AUTHORITY - NOTICE TO THIRD PARTIES. Statutes allowed the recording of a power to sell land and required the revocation of such recorded power to be recorded. Held, that the recording of an instrument purporting to revoke the agency did not give constructive notice of its contents to the agent; and that a mortgage thereafter made by him to a third party, who had no actual notice, was binding against the principal. Best v. Gunther, 104 N. W. Rep. 918 (Wis.). See NOTES, p. 373.

ATTACHMENT - OF REALTY — Effect. — After a federal court had, by its marshal, attached certain land, a state court appointed a receiver to take possession of it. Held, that a state court cannot enjoin the federal marshal from selling the land. Beardslee and McDermott v. Ingraham and Campton, 34 N. Y. L. J. 1415 (N. Y., Ct. App., Jan. 23, 1906).

For a contrary view, see 19 HARV. L. REV. 210.

BANKRUPTCY - DISCHARGE EFFECT OF DISCHARGE UPON LIABILITY OF SHAREHOLDER FOR CALLS. In bankruptcy proceedings against a holder of partly paid shares in a corporation, the corporation proved for the amount uncalled upon the shares, and received a dividend. Subsequently the corporation went into voluntary liquidation, and after satisfying all liabilities had surplus assets available for distribution among its shareholders. Held, that for the purpose of distributing the surplus assets, the shares of the bankrupt are not to be treated as fully paid. In re West Coast Gold Fields (Lim.), 22 T. L. R. 39 (Eng., C. A., Nov. 9, 1905).

In the distribution of the surplus assets of a corporation, holders of fully paid shares are entitled to receive the amount paid by them in excess of that paid upon partly paid shares before the holders of the latter are entitled to receive anything. In re Hodges' Distillery Company, L. R. 6 Ch. 51; Krebs v. The Carlisle Bank, 2 Wall., Jr. (U. S. C. C.) 33. The result of the principal case is therefore clearly correct unless the proof in bankruptcy is equivalent in law to full payment. The general principle, however, is that a discharge in bankruptcy does not extinguish the obligation, but merely bars the remedy. The discharge is no defense to an action upon a provable debt unless specially pleaded, and the privilege of pleading it is in general restricted to the bankrupt. Jenks v. Opp, 43 Ind. 108; Moyer v. Dewey, 103 U. S. 301. At common law a promise to pay a debt barred by a discharge is binding without further consideration. Kirkpatrick v. Tattersall, 13 M. & W. 766. A discharge received by a principal does not terminate the liability of the surety. Ellis v. Wilmot, L. R. 10 Ex. Ch. 10. It has also been held that the amount of indebtedness of a discharged bankrupt to a decedent's estate must be deducted from the amount of the former's distributive share in the estate. Wilson v. Kelley, 16 S. C.

216;

but see Stammers v. Elliott, L. R. 3 Ch. 195.

BANKRUPTCY - EXEMPTIONS LIFE-INSURANCE POLICY. - A bankrupt at the time of his adjudication held three insurance policies. One only of the policies contained an agreement for a cash surrender value, but the other two did in fact have a surrender value which the insurance company signified its willingness to pay. The question arose whether the bankrupt's privilege, under § 70a (5) of the National Bankruptcy Act of 1898, to redeem the policies by the payment to his trustee of their "cash surrender value," applied to those policies for the surrender of which the insurance company had not contracted to pay. Held, that the provision in the Act applied only to the policy containing a definite stipulation for a cash surrender value. Van Kirk v. Vermont Slate Co., 140 Fed. Rep. 38 (U. S. Dist. Ct., N. D., N. Y.).

The phrase "cash surrender value," used in the Act, is frequently and naturally employed to describe a policy's present worth even where the contract contains no stipulation for any payment by the company. An interpretation of the phrase which would have included such a policy would not, therefore, have been unwarranted. Moreover, there appears little basis on principle for applying the phrase to those policies alone upon the surrender of which the company is bound to pay. Authorities agree that if the policy has no present worth, it is

exempt. In re Buelow, 98 Fed. Rep. 86. The trustee's interest is, therefore, limited to present worth. Furthermore, if the payment of its present worth is guaranteed, it may be redeemed by the bankrupt as provided by the Act. To allow the bankrupt to redeem from his trustee a policy for the surrender of which the company was under no obligation to pay value would be equally favorable to interests represented by the trustee; and such a rule would extend the benefits of the exemption to a case clearly within its spirit. Cf. In re Josephson, 121 Fed. Rep. 142. The present decision is, however, supported by the weight of authority. In re Mertens, 131 Fed. Rep. 972.

-

CARRIERS - PERSONAL INJURIES TO PASSENGERS LIABILITY FOR SERVANT'S ACT. The plaintiff was a passenger on one of two of the defendant's street cars, which were passing each other. The conductor of the other car, in sport, threw a dead hen towards the car on which the plaintiff was riding, and thereby injured him. Held, that the defendant is liable. Hayne v. Union St. Ry. Co., 33 Banker & Tradesman 2683 (Mass., Sup. Ct., Dec. 1, 1905).

A common carrier is liable for all injuries to passengers caused by the misconduct of its servants engaged in executing the contract of carriage. Stewart v. Brooklyn, etc., Rd. Co., 90 N. Y. 588. The present decision seems to involve an extension of this doctrine unwarranted by the theory on which it is based. A carrier owes the duty to each passenger to use the utmost care practicable to protect him from violence. See 15 HARV. L. REV. 670. Accordingly the carrier includes the furnishing of protection to passengers among the duties of those servants who execute their contracts of carriage. When these employees, therefore, willfully or negligently fail to protect the passenger from the violence of a fellow passenger, or a fortiori against their own violence, according to settled principles of agency, the carrier is liable. Spohn v. Missouri, etc., Ry. Co., 101 Mo. 417; Craker v. Chicago, etc., Ry. Co., 36 Wis. 657. The liability, however, is not for the servant's acts of commission, but for the correlative acts of omission. See 12 HARV. L. REV. 504. In the principal case, since the servant whose acts were complained of, as conductor of another car, was under no duty to protect the plaintiff, he committed no act of omission for which the carrier is liable; his positive act was plainly without the scope of his employment. See Sachrowitz v. Atchison, etc., Rd. Co., 37 Kan. 212, 216.

CARRIERS PERSONAL INJURY TO PASSENGERS RIGHT TO ENTER STATION. The plaintiff, having a proper ticket and with intent to become a passenger, went to the defendant's station shortly before train time, but found it locked. The village marshal (though not an agent of the company) unlocked the door and admitted the plaintiff to the waiting-room, where she was injured, while in the exercise of due care, by reason of a defect in the floor negligently left unrepaired by the defendant. Held, that the plaintiff is not a trespasser, but is entitled to recover as an expectant passenger. Chicago and A. R. Co. v. Walker, 75 N. E. Rep. 520 (Ill.).

A railroad owes the duty to take reasonable care for the safety and comfort of those who present themselves at a proper time, in a proper manner, and at a proper place upon its premises with intent to become passengers. Exton v. Central, etc., R. Co., 33 Vr. (N. J.) 7. This includes the duty to keep its waiting-room safe and properly lighted for a reasonable time before the arrival of each passenger train. McDonald v. Chicago, etc., R. Co., 26 Ia. 124. Upon the facts stated it seems that the plaintiff, when she presented herself at the station, became entitled to the rights of an expectant passenger. The defendant clearly failed to afford her due accommodation. It now sets up its im proper failure to open and light the waiting-room as the basis of its contention that when the plaintiff entered therein she became a trespasser, simply because the door was unlocked by one not an agent of the company. But no party may set up his own wrong as a part of his case. 4 Inst. 279. The defendant's contention, therefore, properly fails.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW RIGHT OF STOCKHOLDERS TO Elect DirectorS. - A minority stockholder prayed for a decree

enjoining the Equitable Life Assurance Society from amending its charter so as to allow its policy holders to elect twenty-eight out of fifty-two directors. Held, that the right to influence the management of a company by the selection of its directors is a property right, of which the amendment would deprive the plaintiff without due process of law, and that the motion should therefore be granted. Lord v. Equitable, etc., Society, 109 N. Y. App. Div. 252.

This decision is an affirmation of the decision in the lower court, which was favorably commented upon in 19 HARV. L. REV. 62.

CONSTITUTIONAL LAW - PERSONAL RIGHTS — FREEDOM OF CONTRACT: EMPLOYMENT OF UNION LABOR. — Held, that Section 171a of the New York Penal Code, which declares it to be a misdemeanor to require as a condition of employment that the employee shall not belong to a labor organization, violates the state constitution and the Fourteenth Amendment to the Federal Constitution by infringing the right of contract. People v. Marcus, 34 N. Y. L. J. 1149 (N. Y., App. Div., Dec., 1905). See NOTES, p. 368.

CONSTITUTIONAL LAW PRIVILEGES AND IMMUNITIES: CLASS LEGISLATION — Classification of CITIES. — Held, that a New York statute, regulating employment agencies in cities of the first and second classes only, does not conflict with the "equal rights" clause of the Fourteenth Amendment to the Federal Constitution. People ex rel. Armstrong v. Warden, etc., of the City of New York, 183 N. Y. 223.

For a discussion of the constitutional principles permitting such classification, see 16 HARV. L. REV. 59. The case adds one more instance to those in which statutory regulation may discriminate between localities.

CONSTITUTIONAL LAW SEPARATION OF Powers DELEGATION OF LEGISLATIVE POWER. — An ordinance restricting gambling was passed by a county board of supervisors in pursuance of statutory authority empowering it to make local police regulations. Held, that the legislature may properly delegate such legislative power to county boards. Hawaii ex rel. County of Oahu v. Whitney, Sup. Ct of Hawaii, Nov. 24, 1905.

The exception in favor of municipal self-regulation to the maxim that legislative power may not be delegated is here extended to quasi-municipal corporations such as counties. For a discussion of the tendency to limit the application of the maxim and to expand the exception, see 19 HARV. L. REV. 203.

CONTRACTS - CONSIDERATION - UNILATERAL CONTRACT TO PERFORM A LEGAL DUTY. — The defendant and the plaintiff exchanged promises, the defendant to contribute a certain sum per week to the support of the child of himself and the plaintiff, the plaintiff to vacate a certain alimony order. The defendant was the husband of the plaintiff, and was previously bound in law to do all that he promised. The plaintiff fully performed her side of the bargain, and now brings this suit for a breach by the defendant. The defendant contends that the contract is void for lack of consideration. Held, that though the defendant's promise was no consideration for that of the plaintiff, she may, under the circumstances, enforce his promise against him. Ward v. Goodrich, 82 Pac. Rep. 701 (Colo., Sup. Ct.).

To render a bilateral agreement binding the promises exchanged must be, reciprocally, adequate consideration. Lingenfelder v. The Wainwright Brewing Co., 103 Mo. 578. By the great weight of authority, also, neither a promise to perform a legal duty already owed to the promisee nor actual performance thereof is sufficient consideration for the reciprocal promise of the promisee. Foakes v. Beer, 9 App. Cas. 605. Tried by these principles, the bilateral agreement in the case at hand was bad. It seems clear, however, that in a unilateral agreement consideration need move only from the promisee, since the doing of an act requires no consideration. See WILLISTON'S WALD'S POLLOCK ON CONTRACTS 208. Where performance of the bilateral contract is to take place in the immediate future, the reciprocal promises may also constitute cross offers to a pair of unilateral contracts. In such a case immediate performance, where

such is good consideration, may complete a binding unilateral contract, irrespective of the fact that neither the promisor's promise nor even his performance would have constituted good consideration for the bilateral agreement. The case under discussion may be explained on these grounds.

COPYRIGHT- INFRINGEMENT RIGHTS OF ASSIGNEE OF COMMON LAW COPYRIGHT. An artist sold to the plaintiff the exclusive right to reproduce one of his paintings. The plaintiff then took out a statutory copyright, and published photographic copies of the original, each bearing upon its face the notice of copyright. The original was never so marked. The defendant was printing lithographic copies of the painting. Held, that he may be enjoined. Werckmeister v. American Lithographic Co., 34 N. Y. L. J. 991 (U. S. C. C., S. D., N. Y., Dec. 1905).

An artist has two distinct property rights in his paintings: first, the ownership of the physical substances; and, secondly, his common law copyright, consisting of the exclusive privilege of making copies until publication by him. It is well settled that he may assign this common law copyright, and that this assignment carries with it the right to secure the usual statutory copyright, even though the title to the painting itself is retained by the assignor. Werckmeister v. Pierce & Bushnell Mfg. Co., 63 Fed. Rep. 445, reversed on another ground, 72 Fed. Rep. 54. This branch of the case, therefore, is unquestionably sound. Upon the further question, as to whether it is necessary for the protection of the assignee that the notice of copyright should be upon the original as well as upon the copies, there is a conflict of authority, due to a very ambiguous phrase in the statute. U. S. Rev. St., Act of June 18, 1874, c. 301, § 1. From the standpoint of statutory interpretation, the present decision, dispensing with the necessity of notice of copyright on the original, may perhaps be supported. From a practical standpoint, however, there is much to commend the opposite holding. Cf. Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 Fed. Rep. 54. The purpose of the provision in the statute requiring notice on some visible portion of the copyrighted article is not only to warn persons that it is unlawful to make copies from the original, but also to warn purchasers that they cannot gain an absolute ownership. Cf. Burrow-Giles Lithographic Co. v. Sarony, III U. S. 53. Inasmuch as a buyer of an original painting without such notice would be as likely to be deceived as the buyer of a copy, the requirement that notice should be affixed ought to apply to both. Cf. King v. Force, 2 Cranch (U. S. C. C.) 208.

CORPORATIONS CHARTERS: GRANT EXCLUSIVE RIGHTS: WHether GRANTED BY IMPLICATION. A city contracted with a water corporation that the corporation should have a right to furnish water for thirty years, and that during that time the city would not grant the same right to any other person. Held, that this did not preclude the city itself from furnishing water within the specified period. Knoxville Water Co. v. Knoxville, U. S. Sup. Ct., Jan. 2, 1906.

For a discussion of the principles involved, see 16 HARV. L. Rev. 68. CORPORATIONS FOREIGN CORPORATIONS LICENSE TAX UPON INTRASTATE BUSINESS. - A statute of North Carolina imposed a license tax "upon every meat packing house doing business in this state." The plaintiff in error, a foreign meat packing corporation, shipped prepared products to its several storage plants in the state, from which the products were sold for intrastate consumption. Held, that the plaintiff in error is liable for the tax under the statute. Armour Packing Co. v. Lacy, U. S. Sup. Ct., Jan. 8, 1906.

It is well settled that a state may impose a license tax upon a foreign corporation as a condition of its doing business therein. Allen v. Pullman's Palace Car Co., 191 U. S. 171; see BEALE, FOREIGN CORP. §§ 509, 752. The maintenance of a resident sales agency is “doing business within the meaning of these restrictive measures. Cone v. Tuscaloosa Mfg. Co., 76 Fed. Rep. 891. The principal question involved in the case at hand is whether the plaintiff in error was carrying on that kind of intrastate business intended to be affected by

the statute. A foreign meat packing company doing any dissimilar kind of business within the state could scarcely be held liable for the tax imposed. Nor, on the other hand, would it be reasonable to require that all the company's activities must have been pursued within the state to bring it within the measure in question. The fair and natural interpretation of the Act is that every meat packing house must pay a license tax if any part of its characteristic business is carried on within the state. The general proposition, involved in the decision, that the selling of its products constitutes a part of any manufacturing business, is scarcely more than a mercantile truism, and brings the plaintiff in error clearly within the meaning of the statute. See Stewart v. Kehrer, 115 Ga. 184. CORPORATIONS - STOCKHOLDERS: INDIVIDUAL LIABILITY To Creditors FULL PAYMENT OF SHARES WITH PROPERTY. Promoters, having options on a number of plants, with their good will, for $2,250,000, sold the property to a corporation, formed for the purpose of consolidation, at a valuation of about $5,000,000, paid in stocks, bonds, and some cash. The increased valuation was claimed to have been based on profits expected to be realized as a result of the pretended monopolization of the business. A New Jersey statute provided that stockholders were bound to pay unpaid shares whenever the capital was insufficient to satisfy creditors, but also allowed property to be purchased and stock to be issued "to the amount of the value thereof" in payment as full paid stock. A suit was brought by the receiver of the corporation on behalf of its creditors to recover payment on the stock ostensibly issued in exchange for the plants. Held, that prospective profits are not to be regarded as property under the See v. Heppenheimer, 61 Atl. Rep. 843 (N. J. Ch.). See Notes,

statute.

p. 366.

DEATH BY WRONGFUL ACT DAMAGES IN STATUTORY ACTION - Loss OF PARENTAL CARE. - Under a statute allowing the personal representative of one killed by the wrongful act of another to sue for damages for the benefit of the widow and children, and providing that the sum recovered shall "onehalf thereof go to the husband or widow, and one-half thereof to the children, of the deceased," the administrator sued. Held, that damages for the loss to the children of the parental care of the deceased cannot be recovered. McCabe v. Narragansett Electric Lighting Co., 61 Atl. Rep. 667 (R. I.).

Under Lord Campbell's Act the amount recovered is apportioned among the beneficiaries in shares determined by the jury. Most American statutes provide that it be divided in the shares defined by the statute of distributions. Under either provision courts have almost unanimously allowed recovery for loss of parental care. St. Lawrence, etc., Ry. Co. v. Lett, 11 Can. Sup. Ct. 422; Tilley v. Hudson River R. R. Co., 29 N. Y. 252. In construing the second form of statute most courts have held that its purpose is to compensate each beneficiary for the particular injuries suffered. See Richardson v. New York, etc., R. R. Co., 98 Mass. 85. The illogical operation thereby given to the statute, by allowing damages for the separate injuries of each beneficiary and then distributing the whole in arbitrary shares among all the beneficiaries, has led some courts to adopt as the measure of recovery the amount which the deceased would probably have added to his estate. See Railroad Company v. Barron, 5 Wall. (U. S.) 90, 105; Chicago, etc., R. R. Co. v. Woolridge, 174 Ill. 330, 336. Even courts which adopt this latter view have inconsistently allowed recovery for loss of parental care. Ittner Brick Co. v. Ashby, 198 Ill. 562. The Rhode Island statute is so scantily worded as to leave in doubt the theory upon which recovery is based. Granting that the measure of recovery is the amount which the deceased would have added to his estate, as the court holds, damages for loss of parental care are clearly excluded.

DOMICILE HUSBAND AND WIFE: POSSIBILITY OF SEPARATE DOMICILES. The plaintiff was deserted by her husband, who is domiciled in West Virginia, and she thereupon removed to New York. She brought suit in the federal court for alienation of affections against the defendant, a citizen of West Virginia. Held, that a deserted wife may acquire a separate domicile