the practice is to equally divide the damage.—THE HANSON H. KEYS, U. 8. D. C., D. (Md.), 107 Fed. Rep. 537.

48. SHIPS AND SHIPPING-Suit for Demurrage.-A provision of a charter allowing the charterer a certain number of lay days for loading and discharging, and requiring the payment of demurrage for any additional time taken, is an absolute and unconditional engage. ment on the part of the charterer, who cannot be relieved therefrom except on the ground that the delay was due to the fault or negligence of the owner, or those for whom he is responsible; and such fault or negligence is an affirmative defense in a suit to recover the stipulated demurrage, the burden of pleading and proving which rests upon the charterer.HAGAR V. ELMSLIE, U. S. C. C. of App., Third Circuit, 107 Fed. Rep. 511.

49. STATUTE OF FRAUDS-Indemnity.-A promise by one person to indemnify another for becoming surety upon the bond of a third is not within the statute of frauds, and will support an action, although not in writing.-HARTLEY V. SANDFORD, N. J., 48 Atl. Rep.

1009.

50. STREET RAILROAD-Location-Determination of Commissioners.-Const. art. 3, § 18, and Laws 1890, ch. 656, § 94,providing that on application for leave to con. struct a street railroad, the determination of commissioners, confirmed by the court, may be taken in lieu of the consent of the property owners, the determina. tion thus referred to means one only that is in favor of the road; and there is therefore no express authority for the action of the appellate division when the report is unfavorable.-IN RE NASSAU ELEC. TRIC R. Co., N. Y., 60 N. E. Rep. 279.

51. STREET RAILWAYS-Contributory Negligence. One who thinking he can drive across the street in front of an electric car, which he sees approaching, attempts to do so with the result that there is a colli sion when the front wheels of the wagon are on the track, is guilty of contributory negligence.-TYSON V. UNION TRACTION CO., Pa., 48 Atl. Rep. 1078.

52. STREET RAILWAYS-Control of Streets.-A trolley railway track, laid in accordance with the direction of the special ordinance, will not be enjoined from opera tion because its location works inconvenience and injury to the abutting owners.-BUDD V. CAMDEN HORSE R. Co., N. J., 48 Atl. Rep. 1028.

53. STREET RAILWAYS - Negligence - Pleading. · complaint alleging that a street car was stopped to allow a passenger to alight, and that while she was in the act of getting off, and before she had a reasonable time to do so, it was started, with a sudden quick jerk. causing her to be thrown, "all of which was without any negligence on her part contributing thereto," sufficiently negatives contributory negligence.-CITI. ZENS' ST. RY. Co. v. HUFFER, Ind. 60 N. E. Rep. 316. 54. TELEPHONES AND TELEGRAPHS Failure to Deliver Messege. Burns' Rev. Stat. 1894, §§ 5511, 5512 (Horner's Rev. Stat. 1897, §§ 4176, 4176a), making a telegraph company liable for penalty of $100 for a failure to deliver a telegraph message to the sendee, does not render a telegraph company liable for such penalty for the failure to deliver a message received within the Stata for transmission to a point outside the State.

lease, and accepting a specified sum therefor. He averred that he was tricked into signing it by the way the paper was read to him, though admitting that he was able to read the same. Held, that to be relieved from the effect of his carelessness in not insisting on the right to read it himself, he must clearly show that he was defrauded; and there being nothing to cor roborate his own testimony, which was positively contradicted by the company's agent, the libel should be dismissed.—THE ANNIE L. MULFORD, U. 8. D. C., E. D. (Pa.), 107 Fed. Rep. 525.

57. TRADE LABELS-Infringement-Preliminary In junction. To authorize the granting of a preliminary injunction against unfair competition by imitation of packages, the right should be clear; and where it was not shown in support of the motion that any pur. chaser had ever in fact been deceived, and the ques tion whether the similarity complained of was such as was likely to deceive ordinary purchasers could not be determined with certainty on the evidence ad. duced, the discretion of the trial court, exercised in denying the motion, will not be interfered with by the appellate court.-PFEIFFER V. WILDE, U. S. C. C. of App., Third Circuit, 107 Fed. Rep. 456.

58. TREATIES-Construction of Treaty with Russia.Article 9 of the treaty of 1832 between the empire of Russia and the United States, which authorizes consu lar officers of either country to apply to the competent tribunals of the other for the arrest, detention and surrender of deserters from "ships of war and mer. chant vessels of their country," and provides that such deserters shall be surrendered "on proof, by the exhibition of registers of vessels, the rolls of the crew, or by other official documents, that such indi viduals formed part of the crews," cannot be ex tended beyond its terms, so as to apply to deserters generally; and it does not authorize the arrest and detention by the authorities of the United States, on application of a Russian consul, of a member of the Russian navy who, with others, had been sent to this country in charge of an officer, to form part of the crew of a cruiser being built here for the Russian government, but which had not been completed or accepted, or its crew organized, at the time such per. son deserted.-MOTHERWELL V. UNITED STATES, U. S. C. C. of App., Third Circuit, 107 Fed. Rep. 437.

59. TRIAL-Directing Verdict.-Though, even where the evidence is sufficient to sustain it, a verdict may be properly set aside, and a new trial granted, yet the court in such a case cannot, whenever it sees fit, direct a verdict, if the evidence presents an actual issue of fact.-MCDONALD V. METROPOLITAN ST. RY. Co., N. Y., 60 N. E. Rep. 283.

60. WILLS-Perpetuties.-A testator gave to his exe. cutor in trust $1,000, the interest thereof, less the taxes, to be applied to keeping his burial plot in C graveyard in good order, and any surplus remaining to be used to repair fences around the graveyard. Hold vold, as an attempt to create a perpetuity,being neither a charitable bequest nor a gift to a cemetery association, within 1 Gen. Stat. p. 351, § 14, empowering incorporated domestic companies or associations to take and hold property given in trust, and to ap ply the income thereof for the improvement, repair,

and embellishment of such cemetery.—ÎN Re Corle.

Central Law Journal.

ST. LOUIS, MO., JULY 19, 1901.

A recent New Jersey case raises a question of matrimonial law which is in the nature of a quære, a decision of the point not being vital to the determination of the action. The case is Hires v. Hires, decided by the Court of Chancery of New Jersey, and the question propounded is whether mere abstention by a husband from the exercise of his marital rights is willful, continued and obstinate desertion, within the meaning of the New Jersey statute, where he continues to live in the same house with the wife, though occupying a separate sleeping room, and pays, though in parsimonious fashion, for the support of the wife. Mr. Bishop, in section 1678 of his treatise on Marriage, Divorce and Separation seems to state the correct doctrine on this question as follows: "A man may lawfully obligate himself to support a woman not his wife, or to support her children, or to retain her in his house as long as they both live, and to be kind to her. She may bind herself in a corresponding way to him. Indeed, there is but the one thing which is special to mar riage, and is lawful in no other relation. All else pertaining thereto a man and woman may mutually contract for, and do, without taking the first step toward marriage. The unavoidable conclusion from which reason is that the married party who permanently and irrevocably withdraws from all that is peculiar to marriage, whatever incidentals he may adhere to, commits matrimonial desertion."

A most interesting decision was rendered by the Court of Appeals of Kentucky, in the recent case of Lynn v. Moss, 62 S. W. Rep. 712, where it was held that though champerty is the only form of maintenance for. bidden by the statutes of Kentucky, the ancient rule of the common law against simple maintenance is yet in force in that State; and that therefore an agreement by one who was not a lawyer to assist infant heirs, to whom he was not related, in the contest of a will, by rendering personal services as their agent, in consideration of "a sum equal to" a certain part of what might be recovered, was

void where the litigation was the result of the agent's interference and intermeddling. This decision is certainly against the custom and decisions of other states of the Union where it is generally conceded that "owing to their long disuse and the great change of conditions since the time when it was found necessary to apply the harsh doctrines of the common law on this subject, the acts then denounced are no longer illegal." However, in many jurisdictions, the question has never definitely come up for decision whether the offense of maintenance at common law is still in force independent of statutory enactment. But considering the prevailing practice among a certain class of lawyers to employ "runners" to work up damage suits for them, and other similar arrangements, it is strange that the question has not been more often litigated. In the case we are considering the question arose, not in a criminal, but in a civil proceeding between the attor ney and the "agent" who employed him for a division of the fee. It was held on this point that though the contract was made in the name of an attorney whose employment the agent procured under an agreement that the agent was to share the fee, which had been collected by the attorney, the agent could not require the attorney to divide with him, the contract being illegal.

The mortgage tax amendment adopted by the people of Missouri at its last general election, has just been declared by the supreme court of that State to be in violation of the fourteenth amendment of the constitution of the United States. This amendment was borrowed from the constitution of the State of California, where it was adopted in 1879, and where it is still the law. The effect of the adoption of this amendment in California was exhaustively treated in 51 Cent. L. J. 443, where the result of our investigation showed it to have been a collosal failure. We also discovered that the real intent and purpose of the amendment was to prevent double taxation by considering the mortgage as an interest in the real estate by which it is secured, thereby requiring the mortgagee to make no return on the mortgage as personal property, as formerly the case, but to have it assessed against him

as part of the real estate, and requiring the mortgagor to pay taxes only on his interest or equity, in the same property. That part, however, of the amendment, which the Missouri court holds to be in violation of the fourteenth amendment is embodied in the first clause, as follows: "A mortgage, deed of trust, etc., shall, for the purpose of assessment and taxation, be deemed and treated as an interest in the property affected thereby, except as to railroad and other The italics requasi-public corporations." present the fatal words, which in the opinion of the Supreme Court of Missouri unjustly discriminates against those persons holding mortgages not coming within the exception, and who are thereby denied the equal protection of the law. Four judges dissent. The principal ground of objection

to the decision of the court in this case is the fact that a legislature has the power to select the subjects of taxation, and may place one kind of property in a class by itself and tax it differently from other property. That is the general rule, but in answer to this objection the court quoted with approval the words of Caldwell, J. in Railroad Co. v. Walker, 47 Fed. Rep. 681: "But conceding that railroads may be classed by themselves for purposes of taxation, and taxed by a method applicable to them alone, still that classification and method of taxation must be restricted to what is railroad property. It cannot be extended to lands which have no relation to the railroad, or its use or operation. It is not competent for the legislature, under the fourteenth amendment, to classify lands for purposes of taxation, into lands owned by railroad companies, and lands owned by all other persons. and declare that the former should not and the latter should be taxed."

NOTES OF IMPORTANT DECISIONS

BANKRUPTCY PARTNERS IN PARTNERSHIP PROCEEDINGS.-The District Court of the United States for the Eastern District of North Carolina, in the case of In re Hale, 107 Fed. Rep. 432, bas decided that where a petition in involuntary bankruptcy was filed against persons named as partners, constituting a firm, alleging as acts of bankruptcy a transfer of property and a general assignment made by the firm, but no act of bankruptcy on the part of the individual partners, and the entire proceedings show that the adjudication re

DISCHARGE OF INDIVIDUAL

lated solely to the partnership as a legal entity, the court cannot grant a discharge to the parties as individuals.

CORPORATIONS—MAJORITY STOCKHOLDERS AS TRUSTEES.-A most important point of law of especial interest to minority stockholders was recently decided by the New York Court of Appeals, in the case of Saranac Railroad Co. v. Arnold (not yet reported). The point decided was that officers of a corporation who own substantially all the stock do not own the corporation itself. It is not their chattel, but is a distinct legal entity, with the right to own property; and they cannot appropriate its property to their Own use any more than any other agent or trustee can appropriate the property of his principal. The court is not ambiguous in the statement of its position:

"While the defendants owned substantially all the stock, they did not own the corporation itself. It was not their chattel, but was a distinct

legal entity with the right to own property, and they could not appropriate its property to their own use any more than any other agent or trustee can appropriate the property of his principal. Buffalo Loan, etc. Co. v. Medina Gas, etc. Co.. 162 N. Y. 67, 76. Through their voting power they could manage and control its affairs, but only as trustees, and they were bound to observe the rule of meum et tuum, and to be as true to the corporation as if they had sustained the same relation to an individual. Hence, if they took any of the plaintiff's money or property for themselves they are liable the same as if, under similar circumstances, they had taken the money or property of an individual.”

LIFE TABLES AS EVIDENCE.-Are life tables conclusive evidence of the duration of human life? That question was decided recently by the Supreme Court of Iowa, in the case of Trott v. Chicago, R. I. & Pacific Railway Co., 86 N. W. Rep. 33, where it was held in a suit by a servant for personal injuries, that an instruction, “if you find for plaintiff, you will consider the age be would probably have reached if he had remained in good health, as ascertained by the tables of the expectancy of human life introduced in evidence is erroneous, as making the life tables conclusive as to the age he would probably have reached," whereas such tables are only evidence thereof. Defendant asked for an instruction to the effect that the expectancy of life does not necessarily apply to persons engaged in hazardous employment, but is based upon the observed expectancy among persons in ordinary pursuits. This instruction was refused. The court said:

"The instruction given makes the life tables conclusive as to the age he would probably have reached. This certainly is rot the rule. They are not conclusive upon the duration of life, but are competent to be weighed with other evidence. The physical condition of the injured person at the time next preceding the injury, his

general health, his avocation in life with respect to danger, his habits, and probably other facts, enter into the question of the probable duration of life. Railway Co. v. Chambliss (Ala.), 11 South. Rep. 897; Railroad Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. Rep. 1, 30 L. Ed. 257; Scheffler v. Railway Co. (Minn.), 21 N. W. Rep. 711.”

CORPORATIONS

LIMITATION OF ACTIONS AGAINST STOCKHOLDERS.-There are statutes in many States providing for the enforcement of the debts of a corporation against the stockholders generally by suit in equity, or by an action of debt on the judgment against the corporation. In passing upon the question of when the statute of limitations begins to run on the right of action thus given, the Supreme Court of Rhode Island, in the case of Kilton v. Providence Tool Co., 48 Atl. Rep. 1039, held that since the right of action on the debt did not accrue as against the stockholder until the creditor had exhausted his remedy against the corporation, the statute did not begin to run in favor of the stockholder until that time, although the liability on the debt attaches to the stockholder when the debt is incurred. The court said: "It is argued by some of the defendants that the liability of the stockholder, at least under section 1, is primary and absolute from the time of contracting the debt, and that, therefore, the statute of limitations begins to run in his favor immediately. Such would doubtless be the case if an action against him were given immediately, as in some of the cases cited by counsel. In Stilphen v. Ware, 45 Cal. 110, the statute in force (Stat. 1850, ch. 127, § 30) provided: "The preceding sections of this act shall not affect actions against directors or stockholders of a corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by law, but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached or the liability was created.' It is further provided (Stat. 1850, ch. 128, § 32): Each stockholder of any corporation shall be individually and personally liable for a portion of all its debts and liabilities proportioned to the amount of stock owned by him.' The case held that in a suit upon a debt due from a corporation the liability of the stockholder 'was created' when the debt became due. Hardman v. Sage, 124 N. Y. 25, 26 N. E. Rep. 354, holds that, where the statute made stockholders liable only for such corporation debts as were payable within one year from the time they were contracted, the extension of time of payment beyond a year released the stockholders from liability. The lia

N. Y. 334; Powell v. Railway Co., 38 Fed. Rep. 187; Longley v. Little, 26 Me. 162; 2 Mor. Priv. Corp. § 22, note 3; 1 Cook, Stock, Stockh. & Corp. Law, §§ 195, 225f. The statutes of limitation likewise affect remedies, not obligations. The creditor, under our statute, cannot bring debt on judgment until he has obtained the judgment, and when his right of action accrues the statute of limitations begins to run against him."

WILLS-LIFE TENANT-PAYMENT OF MORTGAGE SUBROGATION AGAINST REMAINDER-MAN. -Several interesting questions arising out of the relation of a life tenant under a will to the remainder-men when the former has been given the right to sell property and reinvest the proceeds, are decided in the case of Dougherty v. Connolly (N. J.), 48 Atl. Rep. 777. In this case the testator's will gave his wife a life estate in his property with power to sell and invest the proceeds; the income to be hers for life. She was also made the executrix under the will. Part of the realty had been incumbered by the testator, which incumbrance the executrix paid off out of the personal estate and then conveyed her life estate therein to C. C claimed as against the remainder-men to be entitled to be subrogated to the benefit of the mortgage on the property which had been paid off by the tenant for life. The court said:

Mrs. Dougherty, considered merely as the life tenant of the real estate, subject to an incumbrance created by the testator himself, and devised to her for life, was undoubtedly entitled to redeem the mortgage, and upon the payment of the mortgage to hold it uncanceled, if she chose, and to be subrogated to the rights of the mortgagee. As against the personal representative of the testator, this right of subrogation extends to the immediate payment of the mortgage debt, inasmuch as the personal estate is the primary fund for the payment of mortgage debts created by the testator himself. McLenahan v. McLenahan, 18 N. J. Eq. 101; Campbell v. Campbell, 30 N. J. Eq. 415; Coudert v. Coudert, 43 N. J. Eq. 407, 409. And if there is no personal estate, and the lands incumbered have been sold, and all the estates in the land are represented by funds in court, then the life tenant redeeming is entitled, as against the remainder-men, to immediate payment of the principal of the mortgage out of the funds in court, and will not be barred by her cancellation of the mortgage through inadvertence or ignorance. Kocher v. Kocher (N. J. Ch.), 39 Atl. Rep. 535. As to the second question, the right to require immediate payment

*

*

will, his redemption is allowed for the primary purpose of carrying out the trusts of the will for all parties, the remainder-men as well as the life tenant, and therefore the life tenant's title held under the mortgage, or by the mortgagee's reconveyance, if one is made, is a title upon the trusts of the will, and the reconveyance will be directed to be made upon these trusts. The remainder-men therefore cannot be called upon to redeem the principal before the termination of the life estate, and in the meantime the life tenant holds a charge on the lands for the principal paid, which upon his death is enforceable by his personal representative, or other assignees of the claim. Wicks v. Scrivens, 1 Johns. & H. 215; Pearce v. Morris, L. R. 5 Ch. App. 227, 230; Jones, Mortg. (5th Ed.) par. 1065.

FEDERAL COMMON LAW.-In answer to the question whether the federal courts are bound by common law, Justice Brewer, in the case of Western Union Telegraph Co. v. Call Publishing Co., 21 Sup. Ct. Rep. 561, gives the following interesting explanation:

"In Smith v. Alabama, 124 U. S. 465, 31 L. Ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564, it was said by Mr. Justice Matthews, speaking for the court: "There is no common law of the United States, in the sense of a national customary law distinct from the common law of England as adopted by the several States, each for itself, applied as its local law and subject to such alteration as may be provided by its own statutes. Wheaton v. Peters, 8 Pet. 591. 8 L. Ed. 1055. A determination in a given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribunals of a particular State. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction where they are called upon to administer the law of the State in which they sit, or by which the transaction is governed, exercise an independent, though concurrent, jurisdiction, and are required to ascertain and declare the law according to their own judgment. This is illus. trated by the case of New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, where the common law prevailing in the State of New York in reference to the liability of common carriers for negligence received a different interpretation from that placed upon it by the judicial tribunals of the State; but the law as applied is none the less the law of that State. P. 478, L. Ed. 512,

erally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of congress.

"What is the common law? According to Kent: The common law includes those princi. ples, usages and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature.' 1 Kent, Com. 471. As Blackstone says: Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority: and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom. This unwritten, or common law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification.' 1 Bl. Com. 67. In Black's Law Dictionary, page 232, it is thus defined: 'As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England.'

"Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law, as so defined, and are subject to no rule, except that to be found in the statutes of congress? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional enactment."