207.

efficient circulating medium, there follow certain formal requisites. One of them is that a negotiable instrument must be supported by the general credit of the promisor and so be payable unconditionally. Dawkes v. De Lorane, 3 Wils. Hence an instrument "payable out of a particular fund" within the prohibition of the Negotiable Instruments Law may be said to include one resting upon anything less than the entire assets of the promisor. The assets of a corporation do not, ordinarily, at least, include any individual liability on the part of its stockholders. See Brown v. Eastern Slate Co., 134 Mass. 590. A joint-stock company, on the other hand, is a modified partnership, one of the assets of which, in a sense, is usually the financial responsibility of the shareholders. Indeed, the debts of the company are their debts. See People v. Coleman, 133 N. Y. 279, 285. In the present case only that portion of a company's credit represented by the property employed in its business is pledged for the payment of its bonds. They would seem, therefore, to be non-negotiable. The court follows a natural tendency to treat a joint-stock company as virtually a corporation distinct from its shareholders. See Matter of Jones, 172 N. Y. 575.

CHATTEL MORTGAGES RECORDING

AND REGISTRY PRIORITY OF SUBSEQUENT Lien for Repairs over RECORDED CHATTEL MORTgage. The mortgagor of a wagon, who was allowed to retain possession of it and to use it in his business, left it with the defendant to be repaired without the knowledge or express consent of the mortgagee. Held, that the lien for repairs has priority over the recorded chattel mortgage. Ruppert v. Zang, 62 Atl. Rep. 998 (N. J., Sup. Ct.).

A mortgagor, even though in possession, cannot encumber the chattel with a lien, apart from statute, without the consent of the mortgagee. Therefore, a recorded chattel mortgage prevails over the subsequently acquired lien of a warehouseman, agister or owner of a stallion. Storms v. Smith, 137 Mass. 201; see 7 HARV. L. REV. 241; Mayfield v. Spiva, 100 Ala. 223. But the assent of the mortgagee may be implied from the circumstances. Thus, a liveryman's lien will prevail where the mortgagee knew that the mortgagor would board the mortgaged horse in some livery stable. Lynde v. Parker, 155 Mass. 481. Likewise, where the possession and use of a ship or of a locomotive are allowed to the mortgagor, assent to repairs incident to the use of them is implied. Williams v. Allsup, 10 C. B. (N. s.) 417; Watts v. Sweeney, 127 Ind. 116. The right to use a wagon naturally includes the right to keep it in a a state of repair fit for use. Furthermore, repairs enhance the value of the chattel as security. Under these circumstances, notwithstanding the absence of knowledge or of express consent, both reason and authority allow assent to be implied on the part of the mortgagee, which will secure to the artificer's lien priority over the mortgage. Hammond v. Danielson, 126 Mass. 294; contra, Small v. Robinson, 69 Me. 425.

REMEDIES

CONFLICT OF LAWS PROCEDURE ENFORCEMENT OF DOUBLE LIABILITY OF STOCKHOLDERS IN FOREIGN CORPORATIONS. - The plaintiff, a creditor of a Maryland trust company sued in his own behalf a stockholder for twice the par value of his stock, alleging that such liability to a creditor was imposed by a Maryland statute. Between the purchase of the defendant's stock and the date of this case, the statute was twice changed reducing the triple to double liability and making it only enforceable ratably through a bill in equity by one creditor in behalf of all. Held, that the plaintiff cannot recover. Knickerbocker Trust Co. v. Iselin, 35 N. Y. L. J. (N. Y., Ct. App., May 9, 1906).

When the defendant became a stockholder he subjected himself to an obligation, imposed by the laws of Maryland, to any creditor of the corporation and the plaintiff could then have recovered against him in this form of action in Maryland. Cf. Miners, etc., Bank v. Snyder, 100 Md. 57. And presumably he could have recovered in New York, on the ground that a non-penal obligation created by the laws of one state will be enforced in another if there is a suitable procedure and no public policy to the contrary. Cf. Milliken v. Pratt, 125 Mass. 374

The alteration of the Maryland law, in the case of purchasers, prior to such alteration, affected only the remedy, leaving the obligation itself unchanged. Miners, etc., Bank v. Snyder, supra. As the remedy is exclusively a concern of the forum the plaintiff settling in New York should not be subject to any restrictions subsequently imposed on the remedy by the lex loci contractus, and should, therefore, be allowed to recover as if before the change. De Le Vega v. Vianna, 1 B. & A. 284. The court purports to follow a prior New York case which differs slightly in that there the local statute governing the remedy anti-dated the purchase of the shares. Cf. Marshall v. Sherman, 148 N. Y. 9; but see contra, Whitman v. Oxford National Bank, 176 U. S. 559.

CONFLICT OF LAWS Remedies: RIGHT OF ACTION SUIT BETWEEN FOREIGNERS UPON FOREIGN TORT. — In an action of deceit in an English court of law the plaintiff was a domiciled Scotchman; the cause of action arose in Scotland; and the defendants were a Scotch banking corporation, service upon which was had through its London branch; its president, a Scotchman who appeared voluntarily; and two bankrupts who had not appeared, one a resident of London and one of Scotland. Held, that although the court has jurisdiction, it will stay proceedings against the bank and its president on a showing that they are greatly inconvenienced by the suit's being brought in England instead of in Scotland. Logan v. Bank of Scotland, 94 L. T. R. 153 (Eng., Ct. App., Dec. 21, 1905).

The court relies upon Scotch cases allowing a plea of forum non conveniens, and upon a New York case. See Williamson v. North-Eastern Ry. Co., 21 Sc. L. Rep. 421; Collard v. Beach, 93 N. Y. App. Div. 339. It is often said that in cases of foreign torts between foreigners courts may in their discretion decline jurisdiction. Collard v. Beach, supra; see Great Western Ry. Co. v. Miller, 19 Mich. 305. But it seems to be more in accord with the nature of a court of law that it should be bound to take cognizance of cases within its jurisdiction. Henry v. Sargeant, 13 N. H. 321. It has been suggested also in the United States that the right to sue upon a cause of action arising in another state, the parties being citizens of other states, is one of the privileges guaranteed by the Constitution. Enigartner v. Illinois Steel Co., 94 Wis. 70; but cf. 17 HARV. L. REV. 54. If, as the court suggests, the English action is so vexatious as to amount to a fraud upon the defendants, the decision might be explained as an equitable defense at law. But it seems doubtful that equity would have gone so far as to enjoin such an action, although it might grant a stay if under the same circumstances there were pending a foreign suit upon the same See McHenry v. Lewis, 22 Ch. D. 397, 405.

cause.

CONSTITUTIONAL Law-Due Process of Law - REVOCATION OF LICENSE TO SELL LIQUOR. - The Deputy Excise Commissioner in the exercise of his statutory authority revoked without a hearing the relator's liquor license for not complying with the building laws. The license was assignable, and on its surrender before expiration the holder could obtain a restoration of part of the license fee. Held, that the relator has been deprived of his property without due process of law. People ex rel. Loughran v. Flynn, 110 N. Y., App. Div., 279. See NOTES, p. 607.

CONSTITUTIONAL LAW-Due Process OF LAW - VALIDITY OF STATUTORY REQUIREMENT FOR MAINTENANCE OF SUIT. - The defendant's charter provided that no action should be maintained against the city for personal injuries caused by snow and ice upon the streets, unless written notice of the defective highway had been given before the injury. After the passage of this act the plaintiff was injured by the existence of snow on the defendant's streets, and brought suit. No written notice of the defect had been previously given. Held, that this provision violates the guaranty against the deprivation of life, liberty, and property without due process of law, and is unconstitutional. MacMullen v. City of Middletown, 35 N. Y. L. J. 1 (N. Y., App. Div., March, 1906).

A municipal corporation is liable at common law, except in the New England

states, for injuries sustained through defects in its streets. See 2 DILLON, MUN. CORP., § 998. Statutes relieving the city of liability unless it had knowledge of the defect have been sustained, but where previous written notice of the defect is expressly required the question is new. See McNally v. City of Cohoes, 127 N. Y. 350. The court argues that this provision works a deprivation of substantially all legal remedy for injuries received from defective streets, since it imposes an unreasonable condition precedent on the right to maintain suit. This reasoning does not seem altogether satisfactory. It may be suggested that the statute alters the existing common law so that there is no right of action at all arising to the injured person unless the requisite notice has been previously given. The guaranty of due process of law applies only to vested rights. See COOLEY, CONST. LIM., 511. Since the anticipated continuance of the present general law is a mere expectancy, it would seem that under this interpretation of the question the plaintiff had been deprived of nothing protected by the Constitution. But see Hanson v. Krehbill, 75 Pac. Rep. 1041 (Kan.).

CONTRACTS — Remedies FOR BREACH OF CONTRACT JUDGMENT ON INSTALLMENTS ALREADY DEFAULTED A BAR TO RECOVERY For RemainDER. The plaintiff contracted to purchase and the defendant to sell 50,000 pairs of bicycle pedals, to be delivered and paid for in installments at a price per pair. Before the time for final delivery, the defendant having delivered part of the installments and defaulted in others, the plaintiff obtained a judgment for failure to make the deliveries then due. After maturity of all installments he sued for failure to deliver the remainder. Held, that the former judgment is a bar. One justice dissented. Pakas v. Hollingshead, 184 N. Y. 211.

In consideration of the conveyance of real estate, the defendant agreed that the plaintiff should receive certain annual payments of money and goods and should have the use of two rooms upon the premises. The plaintiff in 1901 recovered a judgment for default of the annual payments already due; and in 1904, claiming subsequent breaches and repudiation of the contract, sought rescission of the contract and an accounting. Held, that the former judgment is not a bar. Gall v. Gall, 105 N. W. Rep. 953 (Wis.).

The first case affirms a judgment of the Appellate Division which was criticised in 18 HARV. L. REV. 619. See s. c. 99 N. Y., App. Div., 472. The second is in accordance with that criticism.

CORPORATIONS

DISSOLUTION DEVOLUTION OF PERSONAL PROPERTY ON DISSOLUTION. A corporation owning a leasehold transferred its assets to a second corporation. Payment was made for the leasehold, but by mistake no assignment was executed. The vendor company was dissolved, and later the vendee company petitioned for the appointment of a new trustee of the leasehold. Held, that the petition must be granted. Re No. 9 Bomare Road, [1906] I Ch. 359. See NOTES, p. 610.

CORPORATIONS DUTIES OF DIrectors - Degree of Care Required TOWARDS CORPORATION. - The directors of an investment company, in good faith but under a mistake of judgment, declared dividends when the corporation was insolvent. Held, that they are not liable to the assignee. Ebelhar v. German American Security Co.'s Assignee, 91 S. W. Rep. 262 (Ky.). See NOTES, p. 613.

CORPORATIONS FOREIGN CORPORATIONS VALIDITY OF CONTRACTS MADE BEFORE COMPLIANCE WITH STATUTE. A Missouri statute requires foreign corporations to comply with certain formalities before doing business in the state; imposes a fine for failure to do so; and provides that a corporation not complying cannot "maintain any suit in any of the courts of the state." The plaintiff, an Illinois corporation, entered into a contract in Missouri with the defendant without having complied with the statute. It subsequently did so, and brought action on the contract. Held, that the contract is void. TriState, etc., Co. v. Forest Park, etc., Co., 90 S. W. Rep. 1020 (Mo., Sup. Ct.).

A state may impose such conditions as it sees fit on foreign corporations before allowing them to do business within its limits. See BEALE, FOREIGN CORP., §§ 116, 117. The object of the various statutes requiring compliance with certain formalities by foreign corporations is to protect persons dealing with them from imposition and to provide a convenient mode of securing jurisdiction over them. See MOR., PRIVATE CORP., § 665. Such statutes are accordingly held by the weight of authority not to make void the contracts entered into by the corporation before compliance with the statute. State v. American Book Co., 69 Kan. 1; see BEALE, FOREIGN CORP., §§ 213, 214; contra, Cincinnati, etc., Co. v. Rosenthal, 55 Ill. 85. In jurisdictions taking this view suit may therefore be maintained on such contracts in the absence of express statutory prohibition. Garratt Ford Co. v. Vermont Mfg. Co., 20 R. I. 187. Where, however, the statute expressly forbids the maintenance of suit, the weight of authority favors the view that this merely suspends the remedy and that a subsequent compliance with the statutory provisions removes the bar to such an action. Security, etc., Assn. v. Elbert, 153 Ind. 198; contra, Heileman Brewing Co. v. Peimeisl, 85 Minn. 121. And the fact that suit may be brought in the federal courts in such a case shows that the statute affects the remedy and not the right. Blodgett v. Lanyon Zinc Co., 120 Fed. Rep. 893.

CORPORATIONS STOCKHOLDERS: POWERS OF MAJORITY - RIGHT TO COMPEL DIRECTORS TO ACT. — Upon the refusal of the directors, in whom the business management of the corporation was vested, to make a transfer of certain assets in accordance with a majority vote of the stockholders, one of the majority stockholders filed a bill to compel the directors to execute the transfer. Held, that the directors, if agents at all, are agents of the corporate entity, and not of the majority stockholders, being by force of the contract of membership rather in the position of managing partners; and that until this contract is changed in the prescribed way a majority of the stockholders cannot compel the directors to act. Automatic, etc., Co. v. Cunninghame, 22 T. L. R. 378 (Eng., C. A., March 22, 1906).

This seems to be the first English decision upon this important question; and the American authority upon the point consists of dicta, analogies, and statements in text-books. The object of giving the corporate management to a board of directors is to have the business affairs controlled by their judgment. There must be action by the directors as such to make an act within their powers that of the corporation; a vote of the stockholders is insufficient. Gashwiler v. Willis, 33 Cal. 11. The power given directors is exclusive in its nature, and the stockholders cannot compel them to act contrary to their judgment. See McCullough v. Moss, 5 Den. (N. Y.) 567. A majority of the stockholders cannot prevent an act by the board of directors within its proper powers. Hutchinson v. Green, 91 Mo. 367; see THOMPSON, CORP., § 3968, $5314. These holdings seem to be inconsistent with the idea that the directors are agents of the stockholders, for, if agents, their action could be compelled, restrained, or directed by their principals. So, too, if agents of the stockholders, the power of control would really vest the management in the stockholders and defeat the object of having directors.

CORPORATIONS ULTRA VIRES CONTRACTS - DOUBLE LIABILITY ON SHARES HELD ULTRA VIRES. - A national bank purchased corporation shares ultra vires. Held, that it cannot be charged with double liability thereupon. First National Bank v. Converse, U. S. Sup. Ct., Feb. 19, 1906. See Notes, p. 609.

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OF

CRIMINAL LAW SPECIFIC INTENT CRIMINAL RESPONSIBILITY DIRECTORS FOR Ultra Vires APPLICATION OF FUNDS. — The vice-president of the New York Life Insurance Co., who was also a member of the finance committee, having consented to an ultra vires application of the funds of the company, was arrested for statutory larceny. Habeas corpus proceedings to the warrant were instituted. Held, that enough evidence is disclosed to justify

the magistrate in issuing a warrant and allowing a jury to decide whether the money was applied with the requisite criminal intent. People ex rel. Perkins v. Reardon, 35 N. Y. L. J. 226 (N. Y. Sup. Ct. April 19, 1906). See NOTES, p. 611.

Deeds Delivery, AcknoWLEDGMENT AND ACCEPTANCE PRESUMPTION OF ACCEPTANCE. An owner of land duly executed a deed running to his wife, and handed it to a third party to have it recorded, intending thereby to effect a delivery. The wife did not know of the existence of the deed till after the grantor's death, when she accepted it. Held, that title vests in the wife at the time of the delivery. Russell v. May, 90 S. W. Rep. 617 (Ark.). See NOTES, p. 612.

DEEDS DELIVERY DELIVERY TO THIRD PERSON TO BE DElivered UPON GRANTOR's Death. —A executed a deed to the plaintiff and delivered it to X to be delivered to the plaintiff upon A's death. Subsequently, A delivered another deed of the same land to the defendant, who knew all the facts. The defendant's deed was first recorded, and both deeds were gratuitous. Held, that the plaintiff may obtain a decree for the cancellation of the deed to the defendant. Grilley v. Atkins, 62 Atl. Rep. 337 (Conn.).

The modern tendency of courts has been toward making the title of land, analogously to personal property, pass by deed at the moment when the grantor intends the transaction to be consummated. See Bogie v. Bogie, 35 Wis. 659, 667. Accordingly, on the facts of the principal case, though the first grantee is generally protected on some principle or other, yet many courts hold that the title does not pass to the grantee until the grantor's death. Stone v. Duvall, 77 Ill. 475; see 18 HARV. L. REV. 138. Under the old common law, the title to land passed with the actual delivery of the deed. See COмYNS DIG., 5th ed., 262. When the deed was handed to a stranger to be redelivered to the grantee, title passed either on the first or on the second delivery. See COMYNS DIG., 263, 264. Thus, in the case of escrows, title was transferred only on the second delivery; but where the second delivery depended on an event sure to happen, the deed was generally held to be the grantee's from the first delivery. See SHEP. TOUCH., 7th ed., 58; Wheelwright v. Wheelwright, 2 Mass. 447. These principles, which the Connecticut court reaffirms in reaching its decision, seem decidedly preferable to the modern hybrid doctrine mentioned above, produced by an unnatural combination of the elements of real and personal property law.

DIVORCE - ALIMONY WHEN WIFE IS UNABLE TO OBTAIN Divorce on ACCOUNT OF HER OWN MISCONDUCT. — A prior action for divorce having been dismissed because of the adultery of both husband and wife, the wife, being abandoned by her husband, brought a suit for separation. Held, that a decree ordering the husband to pay a certain sum of money to the wife be affirmed. Hawkins v. Hawkins, 110 N. Y. App. Div. 42.

Apparently the question whether the wife could obtain a judicial separation was not before the court, but the headnote of the case intimates that separation was decreed in the lower court. Since the adultery of the petitioner is a good defence to an action for absolute divorce, a decree of separation would seem to be opposed to the general view which makes no distinction between actions for absolute divorce and for separation as to the effectiveness of a recriminatory defence. Lempriere v. Lempriere, L. R. 1 P. & D. 569; 2 BISHOP, MAR., DIV., & SEP.. 1st ed., § 365; N. Y. CODE, § 1765. But as the majority of jurisdictions allow an abandoned wife, either at common law or by statute, to maintain a bill for support or alimony, apart from any action or decree for divorce, and as a provision of the New York Code apparently effects the same result, the actual decision in the case is not open to the same objection as the decree for separation. 2 AM. & ENG. Encyc., 2d ed., 94, 95; N. Y. Code, § 1766; but see Waring v. Waring, 100 N. Y. 570. Though no decision exactly in point has been found, it seems highly desirable, as a matter of public policy, to allow