allowance of a preference under such conditions is unjust to the general creditors. If the product of the true owner's res is still traceable in the assets of the wrongdoer, in the form of land, chattels, a bank deposit, or the money of a bank, its surrender to the true owner is eminently just. The creditors are left just where they would be if there had been no misappropriation. If the true owner's res was used in paying one of the creditors, the true owner may fairly claim to be subrogated to that creditor's claim,1 in which case, also, the dividends of the other creditors would not be affected by the misappropriation. The same result is reached if, without subrogation, the true owner is allowed to prove ratably with the other creditors. But to go further and give the true owner a preference over all the general creditors means an unfair reduction of the dividend of the other creditors. If the true owner's res has been squandered, the dividend of the other creditors must be less because of the right of the true owner to prove his claim. But here, too, it would be gross injustice to pay the true owner in full, and thereby diminish still further the dividend of the general creditors. The authorities are nearly unanimous against this unjust preference.2

James Barr Ames.

1 Cotton v. Dacey, 61 Fed. Rep. 481; Jefferson v. Edrington, 53 Ark. 345; Standish v. Babcock, 52 N. J. Eq. 628, in which cases the subrogation was to the right of a creditor secured by a mortgage.

2 Multnomah Co. v. Oreg. Bank, 61 Fed. Rep. 912 (disapproving San Diego Co. v. Cal. Bank, 52 Fed. Rep. 59); Spokane Co. v. First Bank, 68 Fed. Rep. 979; City Bank v. Blackmore, 75 Fed. Rep. 771; Metrop. Bank v. Campbell Co., 77 Fed. Rep. 705; St. Louis Asso. v. Austin, 100 Ala. 313; Bank v. U. S. Co., 104 Ala. 297; Winston v. Miller, 139 Ala. 259; Ober Co. v. Cochran, 118 Ga. 396; Lanterman v. Travers, 174 Ill. 459; Seiter v. Mowe, 182 Ill. 351, 81 Ill. App. 297; Windstanley v. Second Bank, 13 Ind. App. 544; Robinson v. Woodward, 28 Ky. Law Rep. 1142; Englar v. Offutt, 70 Md. 78; Drovers Bank v. Roller, 85 Md. 495; Little v. Chadwick, 151 Mass. 109; Bishop v. Mahoney, 70 Minn. 238; Twohy v. Melbye, 78 Minn. 357; Shields v. Thomas, 71 Miss. 260; Lincoln v. Morrison, 64 Neb. 822 (overruling earlier Nebraska cases); Perth Co. v. Middlesex Bank, 60 N. J. Eq. 84; Ellicott v. Kuhl, 60 N. J. Eq. 333; O'Callaghan's App. 64 N. J. Eq. 287; Re Cavin, 105 N. Y. 256; Re North Bank, 60 Hun (N. Y.) 91; Atkinson v. Rochester Co., 114 N. Y. 168; People v. American Co., 2 N. Y. App. Div. 193; Cole v. Cole, 54 N. Y. App. Div. 37; Re Hicks, 170 N. Y. 195; Northern Co. v. Clark, 3 N. Dak. 26; Ferchen v. Arndt, 26 Ore. 121; Muhlenberg v. N. W. Co., 26 Ore. 132; Re Assignment, 32 Ore. 84; Freiberg v. Stoddard, 161 Pa. 259; Lebanon Bank, 166 Pa. 622; Slater v. Oriental Mills, 18 R. I. 352; Arbuckle v. Kirkpatrick, 98 Tenn. 221; Nonotuck Co. v. Flanders, 87 Wis. 237 (overruling the earlier Wisconsin cases); Burnham v. Barth, 89 Wis. 362; Thuemmler v. Barth, 89 Wis. 381; Henika v. Heinemann, 90 Wis. 478; Gianella v. Momsen, 90 Wis. 476; Stevens v. Williams, 91 Wis. 58; Dowie v. Humphrey, 91 Wis. 98; Hyland v. Roe, 111 Wis. 361; State v. Foster, 5 Wyo. 199, 215.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

- A

CORPORATIONS AND THE PRIVILEGE AGAINST SELF-INCRIMINATION. recent unanimous opinion from the Supreme Court of the United States contains an elaborate and forcible dictum to the effect that the privilege against self-incrimination is not extended to corporations by the Fifth Amendment to the Constitution. Hale v. Henkle, U. S. Sup. Ct., Mar. 12, 1906.

In England the principle nemo tenetur seipsum accusare " is merely a rule of evidence, but in the United States it is a constitutional right.' This constitutional right is, however, only an enactment of the common-law doctrine, and however differently expressed in the various constitutions, the same principle is enunciated by all. The application of this principle to corporations involves two questions: first, is there anything in the nature of the privilege that makes it inapplicable to corporations? secondly, is there anything in the nature of a corporation that unfits it for the privilege?

4

The privilege is in its nature personal, for no one can assert it except the one from whom the evidence is sought, and that one must be the person who is in danger of incrimination. An agent, provided he himself is in no danger of incrimination, cannot refuse to testify for fear of incriminating his principal, even though the principal be a corporation, though there is at least one case to the contrary, holding that the agent on the stand is the corporation on the stand. The Supreme Court, however, accepts the prevailing view, and if that is sound, it must follow logically that a corporation can

6

1 Counselman v. Hitchcock, 142 U. S. 547.

2 See Wigmore, Ev., § 2252.

3 Counselman v. Hitchcock, supra, at 584-586.

4 N. Y. Life Ins. Co. v. People, 195 Ill. 430.

5 Gibbons v. Proprietors of Waterloo Bridge, 5 Price 491.

6 Davies v. Lincoln Nat. Bank, 4 N. Y. Supp. 373.

8

never be a witness, with a possible exception in the case of a bill of discovery filed directly against it. In such a case it has been held that a corporation is entitled to the privilege against self-incrimination.' But bills of discovery apply only to civil cases, and it is therefore difficult to see how the corporation could assert the privilege in an investigation by the state, unless one adopts the apparently erroneous New York view that an officer on the stand represents the corporation. From the nature of the privilege, then, it is seen that the corporation may in one narrow class of cases be in a position to exercise it.

While, then, in a civil suit, it would seem that there is no reason for treating the corporation differently from a natural person, yet, in an investigation by the state, there is a difference arising from the very nature of a corporation and of corporate rights. The corporation receives its rights from the state and can act only in a manner prescribed by its creator. It has special privileges and franchises and must account for their use, and it would be subversive of justice to say that it could refuse to do so on the ground that it had abused them. Therefore, although a corporation is held by the principal case within the protection of the Fourth, and has been held within the protection of the Fourteenth Amendment,1o and probably would be protected by the clause in the Fifth forbidding double jeopardy, it would seem that its nature prevents it, as between it and the state, from receiving immunity from investigation and disclosure of its internal affairs.

THE GOVERNOR'S RIGHT TO SUE. The executive power of the nation is lodged in the President, whereas that of the state is vested in a number of independent heads, each deriving his authority from the same source, the people. And while Supreme Court adjudications have tended to enlarge the scope of the presidential power, state decisions have strictly confined the governor, as one member of a multifarious executive, within his granted powers, denying him any inherent rights.1 All state constitutions, but those of Massachusetts and New Hampshire, name as one of the duties of the governor that of seeing that the laws are faithfully executed. The extent of the power thereby conferred was lately passed on by the Mississippi Supreme Court. The governor, believing a contract made by a state board to be in violation of the Constitution, called upon the attorneygeneral, who as a member of the board voted for the contract, to file a bill to enjoin its execution. Upon his refusal the governor himself brought suit

7 Logan v. Penna. Rd. Co., 132 Pa. St. 403.

8 See Logan v. Penna. Rd. Co., supra.

9 Hale v. Henkle, supra.

10 Smyth v. Ames, 169 U. S. 466.

2

1 For a general discussion see Goodnow, Administrative Law of the United States, bk. II c. III; Wyman, Administrative Law, c. VIII, and cases cited, especially Field v. People, 3 Ill. 79.

2 The Massachusetts constitution (c. II, art. 4) and the New Hampshire constitution (art. 61) contain somewhat similar provisions. The constitutions in force down to 1894 have been generally relied on. In Professor Goodnow's excellent recent treatise, p. 104, occurs this astonishing statement: "As a general thing there is no provision in the state constitutions similar to that to be found in the United States Constitution, which makes it the duty of the chief executive to see that the laws be faithfully executed."

in the name of the state. By a majority vote the court dismissed his bill. Henry v. State, 39 So. Rep. 856. The decision may be rested on the ground that the act to be restrained was discretionary with the board, and therefore not reviewable. Yet the jurisdictional question was discussed at length, and the power of the governor to file a bill under the circumstances is unequivocally denied by the majority opinion, which finds no warrant in the Constitution or in the Code for the governor's position. That official has been allowed to sue on bonds payable to the governor on behalf of the state, on the theory that the governor is a corporation sole. Again, for purposes of suit between states, he represents his state, and by a rule of the United States Supreme Court service is to be made on the governor and attorney-general of a state. A few states expressly authorize the governor to engage other counsel under certain disabilities of the attorney-general. But under the general duty to see to the execution of the laws he has no inherent right to execute the laws himself." He is, in fact, largely a supervisory official. But he may enforce the execution of the laws by the proper authority. Where the duty of another official is ministerial, the governor, and in many states any citizen, may bring mandamus for its performance.

What, then, is the position of the attorney-general? His common-law duties as the law officer of the state are, in the absence of contrary provisions, his under the state constitutions. Upon him devolves the duty to protect the state's interests from unlawful encroachments and violations of its political rights. In all but seven states he is an elective official.10 That his office includes judicial as well as executive functions is attested by the fact that in about ten constitutions it is provided for under the judiciary clause. He is thus endowed with large, independent powers, and is responsible generally only to the people. Yet a few constitutions, such as that of Maryland, apparently place him under the governor's direction in regard to the propriety of bringing suit. By the Mississippi Code the governor may require him to proceed against defaulting county treasurers and to assist district-attorneys. But on failure in his duty of attending the Supreme Court terms the power to appoint counsel to represent the state is with the court. Of course, wherever the governor possesses directory power, he may enforce it by mandamus. But this does not allow him to bring suit himself to execute the functions placed by law in the attorney-general.11 If the exercise of the power to bring suit is discretionary, the power must be vested

3 The case is criticised in 1 The Law 806. Gov. v. Allen, 8 Humph. (Tenn.) 176.

5 Grayson v. Virginia, 3 Dall. (U. S.) 320. The right of the governor of Mississippi to sue in a foreign state is expressly given by statute. Rev. Code 1892, § 2167.

See Alexander v. State, 56 Ga. 478; State v. Dubuclet, 25 La. An. 161, 27 La. An. 293; Orton v. State, 12 Wis. 509.

7 Shields v. Bennett, 8 W. Va. 74, 89; cf. In re Fire, etc., Commissioners, 19 Col. 482; In re Neagle, 135 U. S. 1; Cahill v. State Auditors, 127 Mich. 487. For a collection of the authorities on the governor's implied power to engage counsel, see 55 L. R. A. 493, n.

8 State v. Crawford, 28 Fla. 441; State v. Buchanan, 24 W. Va. 362.

9 See People v. Miner, 2 Lans. (N. Y.) 396.

10 Delaware, New Jersey, Pennsylvania, Maine, New Hampshire, Wyoming, and Tennessee. In the last named state the appointive power lies with the Supreme Court.

11 In Wisconsin it is held that even a private citizen may restrain the violation of a public law upon the attorney-general's refusal to act. State v. Cunningham, 83 Wis. 90.

in him absolutely, and not subject to the mandate of the governor. If the attorney-general is recusant or hostile to the state's interests, the remedy is in impeachment or in legislative aid.

CONTRACTS FOR DISPLAY ADVERTISEMENTS. Where a landowner agrees for a valuable consideration to allow the display of a sign upon his premises, an important question arises as to the nature of the right thus created. Three lines of reasoning have been suggested by the cases which have arisen that the agreement constitutes a lease;1 that it amounts only to a license; 2 and that it gives rise to an easement. The last view is expressed in a recent decision of the Kentucky Court of Appeals. Levy v. Louisville Gunning System, 89 S. W. Rep. 528.

5

A permissive occupation conferring a legal possession is essential to the relation of landlord and tenant. A licensee, however, need not be and ordinarily is not in possession, but has the right to do an act or a series of acts on the land of his licensor. An advertiser does not acquire possession of the wall whereon his advertisement is posted, but simply gains a right to do certain acts on the land of another. Where this right is created by oral agreement, his position is that of a licensee. His right, therefore, is subject to be revoked at the pleasure of his licensor, though, where the license is founded on a valuable consideration and is given for a definite period, a premature revocation would give rise to a right of action for breach of contract. As a license is terminated by any act of the licensor showing an intention to revoke, a subsequent conveyance of any interest in the property inconsistent with the continued enjoyment of the licensee's right would amount to a revocation. Where, however, the agreement is under seal, the only square decision on the subject is to the effect that a right in gross is created in the nature of an easement,' which is irrevocable by the grantor, is good against his subsequent grantee or lessee, and will be protected from interruption by a court of equity. Where the agreement is in writing not under seal, the advertiser acquires only the rights of a licensee, according to the present weight of authority. It is submitted, however, that the agreement is valid as a contract to grant an easement and should be specifically enforceable in equity, — at least in jurisdictions which recognize easements in gross.

6

In any event, whether easement or license, the grant of such a right by the lessee of premises would not be a breach of his covenant not to sub-let. 10 But where a lessee with such a covenant leased the roof of a building together with the right to maintain a sign thereon, the parties manifestly created the relation of sub-lessee in violation of the covenant.11 So, where

120.

1 Snyder v. Hersberg, 11 Phila. (Pa.) 200.

2 Wilson v. Travener, [1901] 1 Ch. 578; and see Reynolds v. Van Beuren, 155 N. Y.

3 See Jones, Landlord & Tenant, § 40.

See Cook v. Stearns, 11 Mass. 533; Jones, Landlord & Tenant, § 36.

5 Kerrison v. Smith, [1897] 2 Q. B. 445.

6 Eckerson v. Crippen, 110 N. Y. 585.

7 Willoughby v. Lawrence, 116 Ill. 11.

8 Gunning Co. v. Cusack, 50 Ill. App. 290.

9 See Gunning Co. v. Cusack, supra; Witherell v. Brobst, 23 Ia. 586.

10 Lowell v. Strahan, 145 Mass. 1.

11 See Gude Co. v. Farley, 28 N. Y. Misc. 184.