modified by a recent decision holding that where an abandoned spouse sues in the state of the last matrimonial domicile, and substituted service was made upon the non-resident defendant, divorce so procured is entitled to extraterritorial validity under Art. 4, § I of the Federal Constitution. Atherton v. Atherton, 181 U. S. 155, reversing s. C., 155 N. Y. 129. The present decision is a further extension of this rule to the case where the abandoned spouse sues in another state in which he has acquired a bona fide domicile. The reasons which underlay the former decision would seem to hold equally here, and the case marks an important development in this branch of the New York law.

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, 94 N. Y. Supp. 65.

This decision seems to flow naturally from two established doctrines. The right of a stockholder to vote is an essential part of his property right in the stock. Kinnan v. Sullivan County Club, 26 N. Y. App. Div. 213. And it is unconstitutional to deprive an owner of any essential attribute of his property without due process of law. Matter of Jacobs, 98 N. Y. 98; People v. Otis, 90 N. Y. 48. The defendants cited two cases: one holding valid a statute allowing cumulative voting for directors, the other sustaining a statute which increased the proportion of railroad directors to be elected by a municipal stockholding corporation, the original allotment having become unjust because of the failure of several subscribers to pay in their subscriptions. Looker v. Maynard, 179 U. S. 46; Miller v. State, 15 Wall. (U. S.) 478. These cases are not exactly in point. One regulates the property right of voting one's stock; the other restores the conditions of proportionate division of directors under which the plaintiffs had subscribed. The mutualization would take out of the control of the stockholders the surplus in which they have a right to share, and would, therefore, be a taking of property without due process." For a more extended discussion of the case, see 17 GREEN BAG 353.

66

CONSTITUTIONAL LAW EMINENT DOMAIN - LAND TAKEN FOR PRIVATE IRRIGATION DITCH. -Held, that a state statute authorizing a landowner to condemn a right of way over adjoining land for the construction of an irrigation ditch to supply water for his own land, is constitutional. Clark v. Nash, 198 U. S. 361.

The court, in affirming the decision of the Supreme Court of Utah, bases its opinion wholly upon the peculiar agricultural conditions in that state. For a discussion of the principles involved, see 17 HARV. L. Rev. 493.

CONSTITUTIONAL LAW PERSONAL RIGHTS - FREEDOM TO CONTRACT.— A statute made it obligatory upon any person or corporation issuing in payment of wages an order upon its store for goods to redeem such order in lawful money or goods at the option of the holder. Held, that this statute is unconstitutional. Leach v. Missouri, etc., Co., 86 S. W. Rep. 579 (Mo., Ct. App.). A like statute has been declared constitutional by the Supreme Court of the United States upon the ground that it is a valid exercise of the police power. Knoxville Iron Co. v. Harbison, 183 U. S. 13. The purpose of such legislation is to protect workmen from unscrupulous exactions. Undoubtedly where the laborer is at a great disadvantage in bargaining with his employer such protection is desirable and may be justified under the police power. But whenever the situation of the employee, due to industrial conditions such as the scarcity of labor or the strength of trade unions, is such that he can adequately protect his interests, state interference would be unnecessary. Under these conditions statutes aimed to accomplish this purpose, not being justified as an exercise of the police power, would be unconstitutional as an

interference with the liberty to contract. See In re Preston, 63 Oh. St. 428, 438. The constitutionality of such a law, therefore, would depend in each case upon the question of fact as to the local industrial conditions.

CONTRACTS DEFENSES: NON-PERFORMANCE BY PLAINTIFF - REPUDIATION AS WAIVER OF VAlid Defense. — The defendant, on insufficient grounds, repudiated a contract to buy goods in two installments. The plaintiff thereafter made tender of the goods. Held, that by repudiating, the defendant bars himself from setting up the defectiveness of the first installment, subsequently discovered, as a defense. Braithwaite v. Foreign Hardwood Co., 21 T. L. R. 413 (Eng., C. A.).

According to the recognized English doctrine regarding anticipatory breach, the innocent party, by not acting on the repudiation, treats the contract as still existing, and holds the other party to its performance. See 14 HARV. L. REV. 317, 422. In such a case the only effect of the repudiation is to free the plaintiff from liability for any failure on his part directly caused by the defendant's repudiation. See Cort v. Ambergate, etc., Co., 17 Q. B. 127. In all other respects the repudiator may avail himself of all rights under the contract. Smith v. Georgia Loan Co., 113 Ga. 975. In the principal case the plaintiff clearly treated the contract as subsisting. If, then, the defendant had a defense, as the trial judge seemed to admit, because of the defectiveness of the first consignment, he should not be barred from setting up such valid defense by previously asserting an untenable ground for repudiation. See In re London, etc., Bank, L. R. 7 Ch. 55. This is true for the reason that the plaintiff must broadly aver performance of all conditions, express and implied, and under the supposed facts he cannot sustain his allegation. Green v. Edgar, 21 Hun (N. Y.) 414. Whether the plaintiff's breach of improper shipments would have warranted the defendant in treating the contract broken, on his part, was a question of fact which should be dependent on the materiality of the breach, of which the element of in limine was an important consideration. See 18 HARV. L. REV. 61.

CORPORATIONS FOREIGN CORPORATIONS RIGHT OF ACTION AGAINST. A New Jersey statute requires foreign corporations wishing to do business in the state to designate an agent to receive service of process in actions against the company. Held, that service on the agent after the company has ceased doing business in the state gives the court jurisdiction over the corporation. Groel v. United Electric Co., 60 Atl. Rep. 822 (N. J., Ch.). See NOTES, p. 52.

CORPORATIONS INSOLVENCY OF CORPORATION

RIGHT OF SIMPLE CONTRACT CREDITOR TO APPOINTMENT OF RECEIVER. — Held, that a creditor of a corporation, who has not reduced his claim to judgment, cannot maintain a suit for the appointment of a receiver, although all the assets of the corporation have been distributed among its individual members. McKee v. City Garbage Co., 103 N. W. Rep. 906 (Mich.).

The general rule is that a creditor is not entitled to the appointment of a receiver until he has secured a judgment and exhausted his remedy at law by having an execution issued and returned unsatisfied. Adee v. Bigler, 81 N. Y. 349. Some courts, however, have departed from this rule in cases where the assets of an insolvent corporation were in danger of being lost or fraudulently disposed of by its officials, and the remedy at law was inadequate. Cf. Kentucky, etc., Ass'n v. Galbreaith, 77 S. W. Rep. 371; Doe v. Northwest, etc., Co., 64 Fed. Rep. 928. These decisions have, in some instances, been rested upon the theory that the assets of a hopelessly insolvent corporation are a trust fund for the benefit of its creditors; while other courts have proceeded upon the ground of the danger of loss to the creditors and the evident inadequacy of the legal remedy. This departure from the general rule would seem a legitimate extension of equity's jurisdiction in accordance with the fundamental principle that equity grants relief where the remedy at law is inadequate. DEDICATION NATURE AND SCOPE

PRESUMED DEDICATION OF JUS Held, that by user alone the public cannot acquire the right to

visit an historic monument on private grounds or to use a way leading to it through the owner's premises. Attorney-General v. Antrobus, [1905] 2 Ch. 188. See NOTES, p. 55.

EXECUTORS AND ADMINISTRATORS

RIGHTS, POWERS, AND DUTIES – POWER TO SELL IS NOT POWER TO MORTGAGE. Executors, authorized to sell land, mortgaged it to the defendant, who had full knowledge of the facts. Held, that the estate is liable in equity to pay the mortgage debt. One judge dissented. Thomas v. Provident Life & Trust Co., 138 Fed. Rep. 348 (C. C. A., Ninth Circ.).

A power to sell imports a power to sell " out and out," and will not justify a mortgage without positive evidence of such an intention. Ferry v. Laible, 31 N. J. Eq. 566; Hoyt v. Jaques, 129 Mass. 286. This is because the testator's intention was to effect a conversion of the property. Haldenby v. Spofforth, 1 Beav. 390. A sale is essentially distinct from incurring an indebtedness, and so it is said a power to sell negatives a power to mortgage. Bloomer v. Waldron, 3 Hill (N. Y.) 361, 368. But where the object clearly was that the property should be kept intact, subject only to raise a sum of money for a particular purpose, it is sometimes said that a power to sell will authorize a mortgage. Loebenthal v. Raleigh, 36 N. J. Eq. 169. No such purpose, however, appears here, and the case, therefore, seems squarely opposed to the general rule. The only basis found for the decision is a dictum by Lord Macclesfield, to which the subsequent cases in point are traceable. Mills v. Banks, 3 P. Wins. I; see 2 CHANCE, POWERS, London ed. 1831, 388.

HIGHWAYS RIGHTS OF Abutters — RIGHT TO Shade Trees. The defendant negligently destroyed shade trees planted in front of the plaintiff's property by his predecessor in title. The plaintiff did not own the fee of the street, but the jury found that the market value of his property had been diminished. Held, that the plaintiff can recover. Three justices dissented. Donahue v. Keystone Gas Co., 181 N. Y. 313.

În jurisdictions which hold that the abutter owns the fee of streets, he obviously has title to shade trees growing therein and can recover for injuries to them. Phifer v. Cox, 21 Oh. St. 248. Where the fee is by statute or charter vested in the municipal corporation, courts have held that abutting owners have in the street rights to light, air and access. Abendroth v. Manhattan Ry. Co., 122 N. Y. 1. This right is defined as in the nature of an easement arising by operation of law by virtue of the proximity of the abutting property to the street. See Kane v. New York Elevated R. R. Co., 125 N. Y. 104, 180. The principal case extends this doctrine and follows an earlier decision in which the plaintiff recovered for injuries to trees which he himself had planted. See Lane v. Lamke, 53 N. Y. App. Div. 395. The existence of this so-called easement, though dependent on the fat of the court, seems to be practically desirable. The unlawful cutting of shade trees in a highway is deemed in equity irreparable injury. Cf. Tainter v. Mayor of Morristown, 19 N. J. Eq. 46, 58. The requirement that the abutter must have sustained peculiar damage in addition to that suffered by the public is supplied by the diminution in the market value of his property.

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- RIGHTS OF POSTHUMOUS

INFANTS UNBORN CHILDREN CHILDREN UNDER CIVIL DAMAGE LAWS. - Held, that an act giving a right of action to any person damaged in his means of support in consequence of the unlawful sale of liquor applies to a child born after the death of its father resulting from such sale. State ex rel. Niece v. Soale, 74 N. E. Rep. 1111 (Ind., App. Ct.).

An unborn child has been uniformly denied a right of recovery for physical injuries negligently caused before birth. Allaire v. St. Luke's Hospital, 184 Ill. 359. Nor is such an infant regarded as a "person" under statutes similar to Lord Campbell's Act allowing suit by representatives of deceased persons. Gorman v. Budlong, 23 R. I. 169. These decisions are based on the ground that such a child is part of its mother. See Dietrich v. Inhabitants of Northampton, 138 Mass. 14. It has been argued, however, that logical con

sistency may be maintained by predicating a right to bodily integrity upon birth, a breach of which, though previously occasioned, does not arise until after parturition. See 15 HARV. L. Rev. 313. However, statutes permitting children to recover for loss of support through death of their father are construed to apply to posthumous children. The right of support is regarded as a property right, and the analogy of cases, allowing unborn children equal property rights with living children, is followed. Cf. Quinlen v. Welch, 69 Hun (N. Y.) 584. While the principal case gives "person a latitude it has not heretofore received, it is a statutory construction which does not encounter the objection of policy that would confront a recognition of the right to bodily integrity.

INJUNCTIONS-NATURE AND SCOPE OF REMEDY ILLEGALITY AS AFFECTING PLAINTIFF'S RIGHTS. The plaintiff collected continuous quotations from the floor of its produce exchange, and under a contract with a telegraph company distributed them to subscribers only. The defendant, though not a subscriber, in some way procured and was distributing plaintiff's quotations. Held, that he will be restrained from so doing. Board of Trade of Chicago v. Christie Grain and Stock Co., 25 Sup. Ct. Rep. 637.

The jurisdiction of equity to protect such property as market quotations or news items has already been recognized. Exchange Tel. Co. v. Gregory & Co., (1896), I Q. B. 147; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. Rep. 294. Several federal courts, however, have hitherto refused relief to this plaintiff on the ground that it was violating an Illinois statute against maintaining a place where the pretended buying and selling of stocks or produce is permitted. Board of Trade of Chicago v. O'Dell Com. Co., 115 Fed. Rep. 574; Board of Trade of Chicago v. Donovan Com. Co., 121 Fed. Rep. 1012. The Supreme Court concludes that such is not the case, and adds that even though it were, the fact would not be a defense to the present suit. This may be because the property right claimed is distinct and separate from any possible illegality in the conduct of the business. See Fuller v. Berger, 120 Fed. Rep. 274; 16 HARV. L. Rev. 444. A further defense is disposed of by the holding that the contract of the plaintiff with the telegraph company is unnecessary to the course of action; but even if requisite it is said not to be in aid of a monopoly or in restraint of trade, as urged by the defendant.

INTERSTATE COMMERCE INTOXICATING LIQUORS- WILSON ACT OF 1890. - A Missouri statute imposed a fee for an inspection of all intoxicating liquors within the state. As the cost of inspection was considerably less than the fee, the act produced a large revenue. Held, that under the Wilson Act the statute is not unconstitutional as applied to beer shipped from another state. Pabst Brewing Co. v. Crenshaw, 25 Sup. Ct. Rep. 552. See NOTES, P. 53.

LANDLORD AND TENANT EVICTION ACT DONE BY LANDLORD AS OWNER OF ADJOINING PREMISES. The defendant leased a house and lot to the plaintiff for the purpose of conducting a saloon. Later, by virtue of his ownership of adjoining lots, the defendant signed a protest and prevented the plaintiff from obtaining a license. Held, that this does not constitute a constructive eviction. Kellogg v. Lowe, 80 Pac. Rep. 458 (Wash.). See NOTES, p. 50.

LIMITATION OF ACTIONS NEW PROMISE AND PART PAYMENT EFFECT OF PAYMENT BY LIFE TENANT AS AGAINST REMAINDERMEN AND DEVISEES. - The defendants were at once remaindermen after a life estate under a will, and devisees of other property. Held, that under a statute making real estate assets for simple contract debts of the deceased, part payment by the tenant for life under the will tolls the statute of limitations as against the defendants. In re Chant, [1905] 2 Ch. 225. See NOTES, p. 57.

MUNICIPAL CORPORATIONS LIABILITY FOR TORTS-DEFECTIVE SCHOOLHOUSE. The plaintiff, a pupil in a public school, sued the city for

damage suffered by falling from a negligently constructed stairway in the school building. Held, that she cannot recover. Clark v. City of Nicholas ville, 87 S. W. Rep. 300 (Ky., Sup. Ct.).

In determining a municipal corporation's liability, courts make an important distinction between governmental and ministerial functions. For damage due to negligent exercise of the former, no common law liability exists. But in the case of the latter, the corporation is treated like a private person. See DIll, MUNIC. Corp., 4th ed., § 949; 15 HARV. L. REV. 736. Thus a town is not liable for damage caused by faulty construction in a hall where a town-meeting is being held. Eastman v. Meredith, 36 N. H. 284. But it is liable for damage caused in a like manner when the building has been rented. Worden v. City of New Bedford, 131 Mass. 23. Though easily stated and illustrated, this principle is often difficult to apply. The authorities are not agreed as to what acts should be considered governmental. The maintenance of schools was certainly no part of the original conception of government. As conditions change, however, the state assumes new duties which become a part of its system of government conceived in a broad sense. The carrying on of schools may well be considered one of these new functions. What authority there is seems to be in harmony with this view. See Sullivan v. City of Boston, 126 Mass. 540; Wixon v. City of Newport, 13 R. I. 454.

· DEBTS DUE RELEASER

RELEASE CONSTRUCTION AND OPERATION UNDER ALIAS. The defendant became indebted to the plaintiff, in two sets of transactions, the plaintiff figuring under his own name in one, and under an assumed name in the other. The defendant did not suspect the identity of his creditors. The plaintiff executed to the defendant a release, under his proper name, of all claims, but made no mention of his transactions under the alias. Held, that as the plaintiff had appeared in person to the defendant when he executed the release, it discharged all the debts due the plaintiff both in his proper name and under his assumed name. Klopot v. Metropolitan Stock Exchange, 74 N. E. Rep. 569 (Mass.).

We are concerned with the construction of a written document, the terms of which cannot be varied by parol. Goss v. Ellison, 136 Mass. 503. There is no ambiguous word or phrase. The debts were certainly all due to the plaintiff, thereby falling under the description in the instrument. Even though the circumstances showed conclusively that the parties contemplated only a release of the debts incurred to the plaintiff under his proper name, the words of the document cannot be held to express this restriction as a fair secondary meaning. It is improbable, also, that the plaintiff could obtain any relief in equity, as the mistake which he made was one of law, concerning the effect of the written release. Cf. Durant v. Bacot, 13 N. J. Eq. 201.

RELEASE CONSTRUCTION AND OPERATION - GENERAL WORDS LIMITED BY PARTICULAR RECITALS. The plaintiff, the victim of a collision, accepted a certain sum from the defendant railway and executed a release in which, after enumerating all the injuries of which he was aware, he discharged the defendant from all claims of any kind whatsoever for "the injuries and damages sustained" and for any results arising or to arise therefrom. Injuries more serious than those enumerated subsequently came to light, and for these the plaintiff brought suit. Held, that the release is no bar to his action. Texas, etc., Ry. Co. v. Dashiell, 25 Sup. Ct. Rep. 737.

A general release is construed strongly against the releaser and cannot be varied by parol evidence that only certain claims were known to the parties. Kowalke v. Milwaukee, etc., Co., 103 Wis. 472. It has been intimated that

equity will confine such a general release to claims of which the parties were aware. See Blair v. Chicago, etc., Rd. Co., 89 Mo. 383. This should perhaps be limited to cases where there has been fraud or mutual mistake whereby unforeseen consequences were included. Kirchner v. New Home, etc., Co., 135 N. Y. 182. But since all parts of a written instrument are construed together, general words of release following a statement of certain liabilities are usually