providing that material men shall have liens on build. ings made or repaired by them, no particular lot was described in the contract.-POWERS LUMBER Co. v. WADE, Tex., 39 S. W. Rep. 158.

75. MECHANIC'S LIEN Contract Covering Several Buildings.-An account for materials furnished under a general contract to furnish the bricks required in the erection of certain specified houses is a continuous one, and the seller may file a lien for any materials furnished under the contract at any time within six months from the last items furnished for the purpose named in such contract, though several months elapsed between such items and preceding ones.MARYLAND BRICK CO. OF BALTIMORE CITY V. DUNKERLY, Md., 36 Atl. Rep. 761.

76. MORTGAGE-Conditional Payment.-A deposit by a widow of the amount due on a mortgage upon dece. dent's land with the mortgagee, and a surrender of the mortgage to her, on condition that the deposit shal be a payment only in case the estate is settled with. out suit, is not a payment except on the happening of the contingency.-BECKER V. CAREY, N. J., 36 Atl. Rep. 770.

77. MORTGAGES-Validity-Right to Foreclose.-Acts 1894, ch. 629, provides that no corporation shall act as agent in any loan on chattels, nor make any loan on chattels "or otherwise," except in its own name and for its own benefit; that any contract in violation of the statute is void, and that the act shall not apply to homestead and building and loan associations "incor. porated under the laws of this State:" Held, to apply only to securities which bind chattels.-COMMERCIAL BUILDING & LOAN ASSN. v. MACKENZIE, Md., 36 Atl. Rep. 754.

78. MUNICIPAL CORPORATIONS - Defective Streets.A municipal corporation is liable in damages to parties injured through its negligence in failing to keep its streets in proper repair, though no special statute authorizes an action for such cause.-CITY OF JACK. SONVILLE V. SMITH, U. S. C. C. of App., Fifth Circuit, 78 Fed. Rep. 292.

79. MUNICIPAL CORPORATION Defective Street Car Tracks. Where a street railway company contracted with a city to keep the streets in repair, and a traveler was injured by defects in the track, the city was lia. able therefor,and was entitled to judgment over against the railway company.-FT. WORTH ST. RY. Co. v. ALLEN, Tex., 39 8. W. Rep. 125.

80. MUNICIPAL CORPORATIONS-Negligence.—In an action against a city for damages caused by the bursting of a defective water main, a charge that plaintiff must show that the defects were known to the city, or were "of such character as to have been readily ascertained on reasonable inspection," did not relieve the city from liability if it had caused a mere optical inspec tion, without practical tests.-FIDELITY & CASUALTY Co. v. CITY OF SEATTLE, Wash., 47 Pac. Rep. 963.

81. MUNICIPAL CORPORATION-Powers.-Under section 6 of article 8 of the constitution, a city is prohibited from raising money for, or loaning its credit to or in aid of, any company, corporation, or association; and thereby a city is prohibited from owning part of a property which is owned in part by another, so that the parts owned by both, when taken together, constitute but one property.-ALTER V. CITY OF CINCINNATI, Obio, 46 N. E. Rep. 69.

82. MUNICIPAL CORPORATION-Street Railways-Damage to Franchise.-The franchise of a street railway company is subordinate to the right conferred on the city by its charter to control the streets, construct sewers, etc.; and the city may, in the honest exercise of its discretion, locate a sewer in the center of a street, so as to suspend the operation of a street railway, without paying compensation for consequent pecuniary loss to the company.-CITY OF SAN ANTONIO V. SAN ANTONIO ST. RY. CO., Tex., 39 S. W. Rep. 136.

83. NATIONAL BANKS-Torts of Officers.-As a national bank has no authority to loan the money of other per.

sons, it is not liable for a loan made by its cashier for a depositor, even though the loan was made as the re sult of a conspiracy with the president with intent to defraud the depositor.-GROW V. COCKRILL, Ark., 39 S. W. Rep. 60.

84. NEGLIGENCE.-What action, if any, besides the preparation of a time-table, and rules to govern its use is required in a given case, in the discharge of the duty of a railroad company to devise a safe method by which to run its trains when off schedule time, is a question of fact, which cannot be reviewed on appeal. -SPRAGUE V. NEW YORK & N. E. R. Co., Conn., 36 Atl. Rep. 791.

85. NEGLIGENCE-Services of Wife.-The reasonable value of extra services rendered by a wife in nursing her husband, made necessary by an injury sustained by him through the negligence of another, is a proper element of damages recoverable by the husband in an action for such injury.-MISSOURI, K. & T. RY. CO. OF TEXAS V. HOLMAN, Tex., 39 8. W. Rep. 130.

86. NEGLIGENCE- Highways Contributory Negli gence. It is contributory negligence for a horseman, apprised of an obstruction in the highway at the time his horse first took fright and turned back, to voluntarily ride up to the obstruction again. - TOWN OF SALEM V. WALKER, Ind., 46 N. E. Rep. 90.

88. NEGOTIABLE INSTRUMENT-Liability of Indorser.-An indorser is not relieved from liability by the fact that the indorsee gave him a receipt for the note "in settlement of account to date."-SMITH V. YOUMANS, S. Car., 26 S. E. Rep. 651.

88. NEGOTIABLE INSTRUMENT - Notes - Signature.The liability of a business concern on a note, the proceeds of which it has received, is not affected by the fact that the manager has made himself personally liable by signing the note himself as manager, with the addition of the name of the concern.-FROELICH V. FROELICH TRADING CO., N. Car., 26 S. E. Rep. 647.

89. NEGOTIABLE NOTES-Bona Fide Holders-Notice. -The fact that a purchaser, for valuable consideration of negotiable notes, from a member of the payee firm, who claims to be the owner thereof, knows that the latter is the president of a bank whose indorsement in blank appears on the notes, after the indorsement of the firm, is not sufficient to put the purchaser on inquiry, or charge him with notice that the notes belong to the bank.-KAISER V. FIRST NAT. BANK OF BRANDON, U. S. C. C. of App., Fifth Circuit, 78 Fed. Rep. 281.

90. NOVATION.-An answer, by a partner, to a com plaint on contract, which alleges that he had sold all his interest in the firm to the other partners; that they had agreed to carry out the contract, and released him from liability thereunder; that plaintiff had ac cepted the new firm as parties to the contract, and had received from them partial payments thereon,shows a complete novation.-SCOTT V. HALLOCK, Wash., 47 Pac. Rep. 969.

91. OFFICERS - Sheriffs - Levy on Property.-Where an officer levies on, under execution, and sells, prop erty which is not that of defendant in execution, he is not liable to plaintiff in execution if he surrenders the property levied on, and returns the proceeds to the purchaser at execution sale.-MCCARTHY V. O'MARR, Mont., 47 Pac. Rep. 953.

92. PARTNERSHIP-Action between Partners.-Where a partnership formed to continue the business of one of the partners gave such partner a check for a sum which he was supposed to have advanced on account of the business, and which it was understood would be repaid to the firm, the payment was a firm transac tion.-COLE V. FOWLER, Conn., 36 Atl. Rep. 807.

93. PARTNERSHIP Assignment for Creditors.-A statutory deed of assignment of partnership and in dividual property, executed by one partner alone, who signed his copartner's name, pursuant to mere verbal authority, did not pass realty owned by the non-ex ecuting partner individually, in view of Rev. St. 1995, art. 624, declaring that lands may be conveyed only by

instrument signed by the grantor, or by his agent thereunto authorized by writing.-JACKMAN V. FORTSON, Tex., 39 8. W. Rep. 219.

4. PARTNERSHIP-Dissolution-Retiring Partner.-A dissolution agreement contained an assignment by the retiring partner to the other of all his Interest in the business, and provided that each partner was to pay one-half of the firm debts, and that the continuing partner should collect moneys due, and pay the retir. ing member one-half thereof: Held not an assign. ment by the retiring partner of his interest in commissions earned by the firm before dissolution.-RIGGEN V. INVESTMENT CO., Oreg., 47 Pac. Rep. 923.

95. PLEADING Amendment.-The declaration was based upon a statute of Pennsylvania, and sought to recover damages for the death of plaintiff's intestate in that State, occasioned by defendant's negligence. Upon demurrer it was held bad, because it disclosed that plaintiff was the widow of deceased, and that by the law of Pennsylvania the action could not be maintained by a personal representative under such circumstances.-LOWER V. SEGAL, N. J., 36 Atl. Rep. 777. 6. PLEADING-Demurrer.-Where demurrers are erroneously sustained to counts in the complaint in an action for negligence, and plaintiff amends, and under the amendment obtains the benefit of all the proof he was entitled to under the original counts, and no additional burden is imposed on him, the error is harm. less.-LAUGHBAN V. BREWER, Ala., 21 South. Rep. 415. 97. PLEDGE-Conversion.-In an action by a pledgor against a pledgee for the conversion of a pledge given in lieu of a bond to secure the performance of a contract a recovery will be defeated by proof that there was a breach of the contract, by which defendant sustained damages in an amount greater than the value of the pledge, and that he sold the pledge for its full value, and gave plaintiff credit for the proceeds.— REARDON V. PATTERSON, Mont., 47 Pac. Rep. 956.

8. PLEDGE OF SECURITIES-Wrongful Rehypothecation.-A pledged securities with B as collateral, and B wrongfully rehypothecated them, together with certain securities of his own, with C, to secure notes made by him to C. A, on learning thereof after B's insolvency, by taking up B's notes, acquired possession of all the securities, except a part of his own, which he left with C as indemnity against claims, suits, and expenses. Both loans being overdue, A sold B's securi ties, and applied the proceeds on B's notes: Held, that A had a perfect right to do this, and did not thereby give B's receiver any right or claim on the securities left in C's hands.-UNION PAC. RY. Co. v. SCHIFF, U. S. C. C., S. D. (N. Y.), 78 Fed. Rep. 216.

99. QUIETING TITLE - Complaint - Estoppel.-In an action to quiet title, an allegation that plaintiffs had paid for and gone into possession of the land and made improvements thereon under a parol contract, and that a deed had been made in which a vendor's lien, which did not exist, had been reserved, and that defendants were setting up a claim through the fraudu lent lien, shows a cause of action.-SEAY V. FENNELL, Tex., 35. W. Rep. 181.

100. QUO WARRANTO-Another Proceeding Pending.A quo warranto proceeding in the name of the State on the relation of a prosecuting attorney is not abated by the pendency of a former proceeding for the same relief in the name of the prosecuting attorney on the relation of private persons, which, under Rev. St. 1889, § 700, could not be discontinued without the consent of the relators.-STATE V. MCSPADEN, Mo., 39 S. W. Rep.

81.

101. QUO WARRANTO- Jury Trial.-No right to trial by jury in a quo warranto proceeding is given by Dec. laration of Rights, art. 1, § 21, providing that the right to trial by jury shall remain inviolate; Code 1881, § 248, in force at the date of the adoption of the constitution, providing that either party "in an action at law," on an issue of fact should have a right to trial by jury.— STATE V. DOHERTY, Wash., 47 Pac. Rep. 958.

102. RAILROAD COMPANY Contributory Negligence. -One who, Immediately after a train has passed on one track, and while the air is filled with dust and smoke, crosses the track, and is struck by another train, is guilty of contributory négligence.-HOVENDEN V. PENNSYLVANIA B. CO., Penn., 36 Atl. Rep. 731.

103. RAILROAD COMPANY-Injuries at Railroad Crossing.-A complaint in an action against a railroad com. pany for killing plaintiff's decedent at a railroad crossing, which alleges that defendant negligently allowed lumber to be piled on its right of way, obstructing the view of the track, but not alleging that decedent's view was thereby obstructed, and that the train was running at an unauthorized speed, and that no signals were given, without alleging that such acts of negli gence were the cause of injury to the decedent, with an allegation that one of defendant's trains killed the said decedent, states no cause of action.-CHICAGO & E. R. Co. v. THOMAS, Ind., 46 N. E. Rep. 73.

104. RAILROAD COMPANY-Right of Way.-A deed of a right of way recited that the grantor reserved posses. sion for two years of "all that portion lying south of said right of way, unless the grantee shall desire all or any portion thereof, except that portion occupied by said brickyard, for railroad purposes." The land included a clay bed: Held, that possession of part was conditioned on the grantee not taking it for railroad purposes, but that the land occupied by the brickyard was reserved absolutely for two years, with the right to dig the clay from the opened bed.-ELKHART & W. R. Co. v. WALDORF, Ind., 46 N. E. Rep. 88.

105. RELEASE - Partnership.-A written contract, whereby a partnership, formed on the retirement of one member and the taking in of a new member, agrees with the retiring member to assume the debts of the old firm, is, as between the parties thereto, an effective release of the retiring member's liability on such debts. -SANDERS V. BUSH, Tex., 39 S. W. Rep. 203.

106. REMOVAL OF CAUSES-Time of Removal-Stipula. tion. Where a stipulation, signed by a party or his attorney or counsel, is of binding force, a cause may be removed from a State to a federal court within the period to which the defendant's time to answer is extended by a written stipulation, though no order of court is entered thereon.-CHIATOVICH V. HANCHETT, U. S. C. C., D. (Nev.), 78 Fed. Rep. 195.

107. REPLEVIN - General Denial.-In claim and delivery a general denial puts in issue plaintiff's ownership and right of possession, and also the wrongful detention by the defendant, and under such denial defendant may introduce evidence to establish any of the issues so raised.-PLANO MANUFG. Co. v. DALEY, N. Dak., 70 N. W. Rep. 277.

108. RES JUDICATA.-Where a judgment to foreclose the lien of an improvement certificate was affirmed on appeal, defendant landowner is estopped to enjoin the sale thereunder on the ground that the land is a homestead and such certificate is not a lien, where he failed to plead such defense in the original action.-O'CONNOR V. LUCIO, Tex., 39 S. W. Rep. 139.

109. SALE Conditional Sale-Lien.-A stipulation in a note that title to the personal property for which it is given shall remain in the seller till payment is made, gives the latter a lien on the property, valid against purchasers with notice.-BALDWIN V. WARREN, Ky., 39 S. W. Rep. 25.

110. SALE-Damages-Measure.-Where a purchaser refuses to accept and pay for goods contracted for, the measure of the damages is the difference between the contract price and the market value of the goods at the time fixed for delivery.-BROWNING V. SIMONS, Ind., 46 N. E. Rep. 86.

111. SALE - Warranty.-The fact that a buyer paid part of the price did not preclude him from relief, in an action for the balance, on account of the worthlessness of part of the goods, where at the time of pay. ment he had no knowledge of the defects.-BOWERS RUBBER CO. v. BLASDEL, Cal., 47 Pac. Rep. 931.

112. SALE OF STANDING TIMBER - Notice.-Defendant purchased standing timber after the recording of a deed to plaintiff of the land on which it stood, and pending a suit by plaintiff against defendant's vendor, which, as to notice of lis pendens, was governed by the law in force prior to the Code of 1892: Held, that defendant had constructive notice of plaintiff's claim, and the want of actual notice was immaterial. - ALLIANCE TRUST Co. v. NETTLETON HARDWOOD Co., Miss., 21 South. Rep. 396.

113. SALE UNDER EXECUTION - Validity. - A sale of lands made by the sheriff of G county, under a venditioni exponas issued to the sheriff of C county, is a nullity.-TERRY v. CUTLER, Tex., 39 S. W. Rep. 152.

114. SET-OFF. - Damages for trespass committed by plaintiff in ejectment on land of defendant contiguous to the premises in suit neither arise out of "the transaction set forth in the complaint" nor"upon contract," within Code Civ. Proc. § 438, and hence cannot be set off.-WIGMORE V. BUELL, Cal., 47 Pac. Rep. 926.

115. SUBROGATION.— One loaning money to pay off a deed of trust, on representations that it was the only lien on the land, and under an agreement that he should have a first lien thereon, is subrogated to the rights of the prior owners of the deed, as against one claiming a mechanic's lien for material furnished after the lien of the deed had attached, and with notice thereof.-WHITESELLE V. TEXAS LOAN AGENCY, Tex., 39 S. W. Rep. 194.

116. SUNDAY - Violating Sunday Law. -A complaint charging defendant with keeping open on Sunday a place in which certain sports known as "billiards" are carried on charges an offense, within Gen. St. § 3097, providing that every person who on Sunday shall keep open any place "in which any sports or games of chance are at any time carried on or allowed" shall be fined.-STATE V. MILLER, Conn., 36 Atl. Rep. 795.

117. TRADE-MARKS AND TRADE-NAMES-Infringement. -Defendants will be enjoined from branding whisky distilled by them "Waterfill & Frazier," though their firm is composed of persons named Waterfill and Fra. zier, where plaintiffs had a widespread reputation for whisky branded "Waterfill & Frazier" for 20 years before defendants commenced business, and defendants, after using the brand "J. M. Waterfill & Company," for some time, changed to "Waterfill & Frazier." FRAZIER V. DOWLING, Ky., 39 S. W. Rep. 45.

Declarations.

118. TRUST-Evidence The declara. tions of the grantor made after the conveyance are not admissible, as against the grantee, to show that the land was impressed with a trust, unless made in the presence of the grantee. - PHILLIPS V. SHERMAN, Tex., 39 S. W. Rep. 187.

119. TRUSTS-Execution - Presumptions.-A trust resulting from a "declaration of uses," reciting that declarant has invested another's money in land which he holds in trust for the latter, is not changed by a subsequent recital that the property is held for the beneficiary "for and until the payment" of all sums due him, "and the surplus, if any," for declarant's own use. -MILLER V. CRAMER, S. Car., 26 S. E. Rep. 657.

120. TRUST-Resulting Trust.-A resulting trust can not be established by parol in favor of a grantor in lands conveyed by him by a warranty deed, not intended as a mortgage, in the absence of fraud or mistake; such a trust, to be valid, being required by the statute of frauds to be evidenced by writing.-ROGERS V. RAMEY, Mo., 39 S. W. Rep. 66.

121. VENDOR AND PURCHASER-Bona Fide Purchasers. -Where a vendor holds the naked title in trust for the vendee, a subsequent purchaser from the vendor, who either takes under a quitclaim deed or with notice of the equities, holds the title subject to the trust.-CLEMONS V. COX, Ala., 21 South. Rep. 426.

122. VENDOR AND PURCHASER- Sales - Forfeiture of Contract. Where a contract to purchase land, and pay in installments, makes time essential, the vendor may cancel the contract for a default in a payment, and de

clare a forfeiture of the installments already paid.HOLBROOK V. INVESTMENT Co., Oreg., 47 Pac. Rep. 920. 123. VENDOR AND PURCHASER - Defective Title. - An owner of land recorded a deed of trust for the benefit of his wife and daughter for life, and then to their heirs, with a power of sale in the wife and daughter. The grantee and trustee refused to accept the trust, and executed a deed of release to the original owner, in which the wife and daughter joined: Held, that the question whether a trust had been created in favor of the heirs of the wife and daughter was sufficiently doubtful, so that one contracting to purchase the land with a good and sufficient title would not be compelled to perform.-LORING V. WHITNEY, Mass., 46 N. E. Rep. 57.

124. VENDOR'S LIEN - Foreclosure. An attachment lien established by a judgment, and ordered to be foreclosed, is not affected by foreclosure of a vendor's lien on the same land under a judgment in a subsequent suit, of which the attaching creditor had notice, but to which he was not a party. - MCDONALD V. MILLER, Tex., 39 S. W. Rep. 89.

125. VENDOR'S LIEN-Homestead.-Where a husband, representing the community, purchases and pays for property for a homestead, and converts it to that use, fictitious vendor's lien notes created by him, though without the wife's consent, at the time of the pur chase, and recited in the deed as being such, are en forceable in favor of a bona fide holder.-NEW ENGLAND SAFE DEPOSIT & TRUST CO. v. HARRELL, Tex., 39 S. W. Rep. 142.

126. WATERS-Navigable Water-Accretion.-Where the channel of a navigable stream abruptly shifts from one side of an island to the other, the island owner ac quires no title to the abandoned bed.-VOGELSMEIR V. PRENDERGAST, Mo., 39 S. W. Rep. 83.

127. WILLS-Absolute Bequest-Limitations Over.After giving his daughter one-third of his estate, testator directed that the money part be paid to a trustee for her sole use, free from the control of any future husband, but that if she attained the age of 21 years, unmarried, her legacy should be paid to her directly, to be held and used" by her until her marriage, and then settled on a trustee: Held, that the interposition of a trustee was merely for her protection in case of minority or coverture, and, as she was an unmarried feme sole when the will took effect, she acquired an absolute estate in the principal of the fund.-MEACHAM V. GRAHAM, Tenn., 39 8. W. Rep. 12.

128. WILLS-Construction-Nature of Estate.-Testator devised land to his son for life, and after death to the "heirs of his body, by him begotten," with remainder over if he should have no "heirs of his body, by him begotten, him surviving:" Held that, the modifying words to the term "heirs of his body" limiting that phrase to "children" the rule in Shelley's Case cannot be invoked to extend the devise to the son for life to a devise in fee simple.-GRANGER V. GRANGER, Ind., 46 N. E. Rep. 80.

129. WILLS-Nature of Estate-Life Tenant.-Testa tor gave all his estate to his wife, "for her sole use, benefit, and enjoyment during her life, with full power to sell and dispose of any of said property, and to use the proceeds thereof in such manner as she may de sire," and directed his executors on her death to divide "such property as may then remain" among certain persons named. By a codicil he gave his wife $10,000 "for her sole use and benefit, with full power to dispose of the same, by will or otherwise:" Held, that the wife took a life estate only in the personal property with a power of disposal and appointment by act tak ing effect during her life for her own benefit.-ROBE SON V. SHOTWELL, N. J., 36 Atl. Rep. 780.

130. WITNESS-Impeachment.-Where the State, to discredit a witness, asked him if he was not under in dictment for theft of cattle, the witness should be allowed to state on his re-examination that he was bona fide purchaser of said cattle, and had not stolen them.-TIPPETT V. STATE, Tex., 39 S. W. Rep. 120.

Central Law
Law Journal.

ST. LOUIS, MO., APRIL 16, 1897.

No more important decision has been rendered for a long time, than that recently announced by the Supreme Court of the United States in the action brought by the federal government against the Trans-Missouri Freight Association, in which that tribunal sustains what is known as the Sherman antitrust law and holds that it, in effect, forbids all pooling arrangements by railroad corporations. The case arose upon a bill brought by the government to have set aside and declared void the agreement of the association, which was signed by some eighteen railroad companies, "for the purpose of mutual protection," by the establishment and maintenance of "reasonable rates, rules and regulations on all freight traffics, both through and local." The government charged in its bill that the defendants were "engaged in an unlawful combination and conspiracy of great injury and grievous prejudice to the common good and the welfare of the people of the United States." The bill originally brought in the United States Circuit Court for the District of Kansas, was dismissed by that court and the action of that court was affirmed by the Circuit Court of Appeals for the Eighth Circuit. Both decisions have now been overruled by the Supreme Court. The opinion of the court was by Mr. Justice Peckham, concurred in by Chief Justice Fuller and Associate Justices Brewer, Harlan and Brown. Four of the justices, viz., White, Shiras, Field and Gray dissented.

The court said at the outset that to exclude agreements as to rates by competing railroads for the transportation of articles of commerce between the States would leave very little for the anti-trust law to take effect upon, and that is the act by which the legality or the illegality of agreement is to be determined. The interstate commerce law, the court says, does not authorize an agreement like that in question. It may not in terms prohibit it, but it is far from conferring, either directly or indirectly, any authority to make it. Continuing, the court says that it sees nothing in

the

contemporaneous history, in the legal situation at the time of the passage of the statute, in its legislative history, or in any general difference, in nature or kind, of trading or manufacturing companies from railroad companies, which would lead to the conclusion that congress, in prohibiting the making of contracts in restraint of trade, intended to exclude railroads from the operation of the act. The act, the court goes on, prohibits contracts, combinations, etc., in restraint of trade or commerce. Transporting commodities is commerce, and if from one State to or through another it is interstate commerce, and, therefore, contracts relating to either or both subjects are included so long as they relate to trade which is either interstate or foreign. While the act prohibits all combinations in restraint of trade, the limitation is not confined to that form alone. Nor should it be held that the act excepts contracts which are not in unreasonable restraint of trade and which only keep up rates to a reasonable price. This would be the reading into the act by the way of judicial legislation of an exception not placed there by the law-making branch of the government.

in the price of the commodity dealt in might, the court suggests, be dearly purchased by the ruin of such a class and the absorption of control over one commodity by an allpowerful combination of capital.

It is, in fact, the court says, not material that the price of an article may be lowered, for it is in the power of the combination to raise it. It is not, according to the court, for the real prosperity of any country that such changes should occur as result in transferring an independent business man, the head of his establishment, small though it may be, into a mere servant or agent of a corporation for selling the commodities which he once manufactured or dealt in, having no voice in shaping the business policy of the company and bound to obey orders issued by others. Finally, the court says, it is entirely appropriate generally to subject corporations or persons engaged in trading or manufacturing to different rules from those applicable to railroads in their transportation business, but when the evil to be remedied is similar in both kinds of corporations, such as contracts unquestionably in restraint of trade, there is no reason why similar rules should not be promulgated in regard to both.

Notwithstanding that the opinion of the court will probably be endorsed by a majority of the profession, there are many who believe that the dissenting judges are right in their main contention as expressed in the dissenting opinion of Mr. Justice White-in the contention that congress did not intend to prohibit reasonable contracts and agreements. It is admitted by the minority judges that originally all contracts which in any degree restrained trade were illegal. But it is pointed out that as trade developed it came to be understood that the rigid prohibition of all contracts and combinations in restraint of trade would tend to destroy both the freedom of contract and trade itself. Hence, from the very reason of things, arose that distinction under which contracts only partially restraining trade were held to be legitimate. It was this

conception which led to the adoption, by the common law judges, of reason as the criterion by which it was to be determined whether a contract which in some measure restrained trade was, when considered in all its aspects, a contract of that character, or whether it

was one which was necessary in the interest of trade itself. "To define, then, the words 'in restraint of trade' as embracing every contract which in any degree produced that effect would be violative of reason, because it would include all those contracts which are the very essence of trade, and would be equivalent to saying that there should be no trade and therefore nothing to restrain." The minority judges quote the following clear statement from a leading book and indorse it as the precise expression of the undoubted American and English rule. "The tendency of modern thought and decisions has been no longer to uphold in its strictness the doctrine which formerly prevailed respecting agreements in restraint of trade. The severity with which such agreements were treated in the beginning has relaxed more and more by exceptions and qualifications, and a gradual change has taken place, brought about by the growth of industrial activities and the enlargement of commercial facilities."

To uphold this view the minority judges point to the title of the act which reads "to protect trade and commerce against unlawful restraints and monopolies." Does not, they ask, the word "unlawful" clearly distinguish between contracts in restraint of trade which are lawful and contracts which are not. If all contracts in restraint of trade are unlaw. ful under the act, is it not absurd to speak of unlawful contracts, thus carrying the impli cation that there are contracts which lawfully restrain trade? True, the title of an act does not absolutely control it and cannot be used to destroy the plain import of the language found in its body, yet when a literal interpretation will work out wrong or injury, or when the language is ambiguous, the title may be resorted to as a guide to construction. Further, the minority point out that there is no canon of interpretation which requires that the letter be followed when by so doing an unreasonable result is accomplished. On the contrary, the rule is the other way. It exacts that the spirit which vivifies, not the letter which kills, shall be the guide to cor rect interpretation. The supreme court has repeatedly held that the intention of the law. maker is the law, and statutes should receive a sensible construction, such as will effectuate the legislative intent, and, if possible.