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otherwise, and does not ultimately obtain a conveyance, the contract going off through no default of his, is entitled to a similar lien on the land for the amount which should be repaid to him. The similarity of the two liens was pointed out by Kindersley, V. C., in Wythes v. Lee, 3 Drew. p. 403. After suggesting that a possible distinction might exist in the fact that the vendor had the estate in the land at the time of the contract, and only intended to convey subject to payment of the purchase money, while the purchaser had not the estate in his possession, and his lien, consequently, was not in its origin the same sort of lien as that of the vendor, he continued: "But when a contract is made and that goes off, it appears to me that, in principle and justice, the equity of the purchaser to a lien on the estate ought to stand on as good a footing as the lien of the vendor after conveyance. * * It appears to me that, on the principles of equity and justice, the purchaser, when the contract goes off, has a lien." As long as the land remains in the hands of the vendor the question of lien is not so likely to arise. It is when the vendor, who has received part of the purchase money, sells or mortgages the land without accounting to the assignee for what he has received that the original purchaser may find his right disputed. In the present case of Whitbread & Co. v. Watt, supra, by a contract made in January, 1897, one Saunders agreed to sell, and the purchasers agreed to buy, a freehold plot upon a building estate of the vendor for £500, of which £200 was paid at once as deposit, and the remaining sum of £300 was to be paid on completion. As to date of completion it was stipulated that this should take place as soon as 300 houses had been erected on the estate, but if so many houses were not erected within two years the purchasers were to have the right to cancel the agreement. Subsequently to this contract Saunders sold and conveyed the estate and the assignee mortgaged it. In November, 1900, the mortgagees sold and conveyed the estate to the defendant Watt with notice of the contract of January, 1897. The 300 houses had not been built, and Saunders had not paid or accounted for the deposit of £200 to any of his successors in title. In December, 1900, the plaintiffs gave notice to rescind the contract of January, 1897, and they claimed from Watt, the then owner, the return of the deposit. This was refused, and the question was raised in the action whether the plaintiffs were entitled to a lien for £200 upon the land in the hands of Watt. We have already seen that the principle that a purchaser may be entitled to a lien was laid down in Wythes v. Lee; but the

part of the purchase money, then to the extent of the amount paid the transfer is complete. Where, said Lord Westbury, L. C., in the case just referred to, the contract is an executory contraet "in this sense, namely, that the ownership of the estate is transferred subjec. to the payment of the purchase money, every portion of the purchase money paid in pursuance of the contract is a part performance and execution of the contract, and, to the extent of the purchase money so paid, does, in equity, finally transfer to the purchaser the ownership of a corresponding portion of the estate." And Lord Cranworth laid down the doctrine in similar terms: "There can be no doubt, I apprehend, that when a purchaser has paid his purchase money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate. When, instead of paying the whole of his purchase money, he pays a part of it, it would seem to follow, as a necessary corollary, that, to the extent to which he has paid his purchase money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if upon the payment of a part of the purchase money the vendor had executed a mortgage to him of the estate to that extent." In Rose v. Watson a purchaser was bound by his contract to pay a deposit immediately and the balance in three years' time, and to pay interest on the balance half-yearly in the meantime. paid the deposit and made several payments of interest, but at length declined to complete the contract on the ground that the representations on which he had been induced to enter into it remained unfulfilled. It was held that the purchaser was justified in the course he had taken, and that he had a lien on the land for the sums which he had paid on account of principal and interest, a lien which he was entitled to enforce against mortgagees of the vendor who had taken with notice of the contract.-Solicitors' Journal.

He

CRIMINAL LAW-CRUEL AND UNUSUAL PUNISHMENTS.-Justice Rumsey in the case of In re Bayard, 25 Hun (N. Y.), 546, proved his utter failure as a prophet when he said: "The courts have rarely had occasion to construe the meaning of the phrase 'cruel and unusual punishment.' And since no punishment can be inflicted until authorized by the legislature which is often elected, and represents the general moral ideas of the people, it is not likely that they will often be called on to construe it." It may seem an irony of fate, but since that decision, one of the most litigated onestions of law has been that of

nal. It is not an easy matter to find out just what is meant by the prohibition against "cruel and unusual punishments," but the cases all seems to point to the conclusion that it was not the intention by this provision of the constitution to limit legislative discretion in fixing the punishment for crime. This question arose and was intelligently discussed in the recent case of Territory v. Ketchum, 65 Pac. Rep. 169, where the Supreme Court of New Mexico held that a statute prescribing the death penalty for assault upon a train with intent to commit robbery or other felony, does not prescribe a cruel and unusual punishment, within the meaning of the eighth amendment to the constitution of the United States. The court reviews the authorities holding that "cruel and unusual punishments" include only those involving torture and lingering death. Sturtevant v. Commonwealth, 158 Mass. 598, 33 N. E. Rep. 648; State v. Williams, 77 Mo. 310; People v. Morris, 80 Mich. 634, 45 N. W. Rep. 591; In re Kemmler, 136 U. S. 436, 10 Sup. Ct. Rep. 930. The test applied by all these cases was not the proportion between the offense and the punishment but the character of the punishment and its mode of infliction. The court said: "If this be the test in all cases, then it must be clear that legislative discretion in determining the severity of punishment for crime is not to be interfered with by the courts, so long as all forms of torture are avoided." In State v. Williams, 77 Mo. 310, the court said: "The interdict of the constitution against the infliction of cruel and unusual punishments would apply to such punishments as amount to torture, or such as would shock the mind of every man possessed of common feeling. If a punishment by imprisonment for life of one convicted of the offense therein defined [obtaining money under false pretenses], should be inflicted, it might well be said that such punishment would be excessive, or, rather, entirely disproportioned to the magnitude of the offense, yet, notwithstanding, there is high authority for saying that the question whether the punishment is too severe and disproportionate to the offense is for the legislature to determine." Numerous late cases hold the same position. The following punishments have been held not violative of the constitutional prohibition against 'cruel and unusual punishments' on the same principle: a heavier penalty on one convicted of felony where he has twice before been convicted for similar offenses (McDonald v. Commonwealth, 180 U. S. 311, 21 Sup. Ct. Rep. 389); a fine $25 to $100 per day for operating a street car in winter without protecting screen for motorman (State v. Whitaker, 160 Mo. 59, ¡60 S. W. Rep. 1068); penitentiary imprisonment of tramp threatening injury (State v. Hogan, 63 Ohio St. 202, 58 N. E. Rep. 572); death penalty on train robbers (State v. Stubblefield, 157 Mo. 360, 58 S. W. Rep. 337); hard labor in county jail for two years for carrying concealed weapons (State v. Hamby, 126 N. Car. 1066, 35 S. E. Rep.

614); fine of not less than $100 and imprisonment for not less than 10 days for selling merchandise without a license (State v. Foster [R. I. 1900], 40 Atl. Rep. 833); disbarment of attorney for misdemeanor in addition to fine (In re Coffey, 123 Cal. 522, 56 Pac. Rep. 448); fine of $20 for every bird unlawfully killed or in possession (In re Stone [R. I. 1898], 41 Atl. Rep. 658); fine of not more than $500 and imprisonment for not more than eighteen months for violating saloon closing statute (Cardillo v. People, 26 Colo. 355, 58 Pac. Rep. 678); punishment of one between 16 and 30 years of age convicted of burg. lary by imprisonment in reformatory to be terminated within 14 years according to the rules of the institution (Miller v. State [Ind. 1898], 49 N. E. Rep. 894); fine of not more than $500 on railroad for not giving signals at highway crossings (Louisville, etc. R. R. v. Commonwealth [Ky. 1898], 46 S. W. Rep. 207); providing industrial school for children under restraint (State v. Phillips [Minn. 1898], 75 N. W. Rep. 1029); two years' imprisonment at hard labor for unjustifiable assault (State v. Apple [N. Car. 1897], 28 S. E. Rep. 469); six years' imprisonment of a member of city council for asking a bribe (State v. Durnam [Minn. 1898], 75 N. W. Rep. 1127). Massachusetts courts are very outspoken on this question and hold that the provision against cruel and unusual punishment in the state constitution providing that no court shall inflict cruel and unusual punishments is directed to the courts, and not to the legislature. McDonald v. Commonwealth [Mass. 1899], 53 N. E. Rep. 874. In the same case they also hold that the eighth amendment to the constitution of the United States providing that no cruel or unusual punishment shall be inflicted has no application to the states. There are some authorities, however, which hold that the constitutional provision under consideration is broad enough to confer upon the court the power to review legislative discretion concerning the adequacy of punishment, "in very extreme cases, where the punishment proposed is so severe and out of proportion to the offense as to shock public sentiment and violate the judgment of reasonable people." State v. Becker, 3 S. Dak. 29, 51 N. W. Rep. 1018. This doctrine has been recognized in other cases. In re MacDonald (Wyo.), 33 Pac. Rep. 18; In re Bayard, 63 How. Proc. 73; Thomas v. Kinkead, 55 Ark. 502, 18 S. W. Rep. 854, 29 Am. St. Rep. 68. See also dissenting opinions of Justices Field, Harlan and Brewer in O'Neil v. Vermont, 144 U. S. 323, 12 Sup. Ct. Rep. 693, 36 L. Ed. 450.

WHAT IS THE POWER OF A STATE TO RESTRICT OR FORBID THE DOING BUSINESS WITHIN ITS TERRITORY BY A FOREIGN CORPORATION.

A corporation is a legal entity composed of one or more individuals united by law, under the grant of a franchise from the state,

into one body having a special denomination and vested by law with the power of prepetual succession and of acting in many respects as a single individual. A foreign corporation is one that derives its existence, powers, and rights solely from the laws of another state, government, or country. This is essentially the definition given in Daly v. The National Insurance Company.1 It may be well to note, however, that a corporation organized by the federal government for a federal purpose, or a private corporation empowered to carry out some federal power, purpose, or need, as, for example, to build warships or to build bridges along post-roads or to carry the mails, cannot be controlled by state laws. "Such corporations may supply all their needs and buy materials and machinery to carry on their work in any state in the union and no state law shall restrict or forbid,' for they are arms of the United States government, organized or controlled by United States laws, which laws are just as much binding on states and citizens thereof as the state laws are. "The government of the United States, in its relation to the government of the several states, cannot be considered a foreign government in the ordinary acceptation of the term. Within the sphere of its delegated powers, its authority extends over all the states of which it is composed, and to that extent it may be said to be identified with each. Hence, a corporation created by the government of the United States cannot with propriety be said to be a foreign corporation."'

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What power, then, has a state to restrict or forbid the doing business within its boundaries by a foreign corporation? And, first, what is meant by "doing business?" There seems to be considerable conflict on this point. Alabama seems to hold that the doing of any act involving the use of the corporate franchise or power is "doing business within the meaning of the statute," while Colorado holds that "the constitution and statutes forbid, not the doing of a single

1 (1878) 64 Ind. 1.

2 Stockton v. Ry. Co. (1887), 32 Fed. Rep. 9. 3 Commonwealth v. Tex. & Pac. Ry. Co. (1881), 98 Pa. St. 90.

Beard v. Union and Am. Pub. Co. (1881), 71 Ala. 60; Farrier v. New Eng. Mort. Co. (1889), 88 Ala. 275; Dundee v. Mort. Co. v. Nixon (1890), 95 Ala. 318; Nelmo v. Land & Mort. Co. (1889), 92 Ala. 157.

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act of business in the state, but the carrying on of business by a foreign corporation. The constitution requires the foreign corporation to have one or more places of business in the state before doing any business therein. This implies a purpose at least to do more than one act of business, for a corporation that has done but a single act and purposes to do no more cannot have one or more known places of business in the state. To have known places of business it must be carrying on business." And this is substantially the doctrine enunciated by the federal courts. Adopting this rule the doctrine, broadly stated, may be laid down as follows: A corporation is the mere creature of legislature, and as the states of the union are, for the purpose of jurisdiction, foreign to each other, one state may exclude absolutely all corporations created by a foreign state, nation, or country from doing business within its limits, subject only to the limitations, expressed or implied, found in the federal constitution. Mr. Justice Field, in Paul v. Virginia, adds to the above restrictions that imposed by comity. He says: "The recognition of its (the corporation's) existence, even by other states and the enforcement of its contracts made therein, depends purely upon comity." But what is comity? Mr. Murfree in his work on Corporations says: porations says: "It is a principle of the law of nations that, in the absence of any positive rule affirming, denying, or restricting the operation of foreign laws, courts will presume the tacit adoption of them by their government, unless repugnant to its policy and interests ;" and then it adds, in section 3: "Comity, however, is a matter of grace rather

5 Colo. Iron Works v. Mining Co. (1890), 15 Colo. 499; Utley v. Clark-Gardiner Mining Co. (1878), 4 Colo. 369.

6 Cooper Mfg. Co. v. Fuerguson, 113 U. S. 727; St. Louis Wire Mill Co. v. Consolidated Barb Wire Co., 32 Fed. Rep. 802. Other cases bearing on this point are: Mandel v. Swan (1895), 154 Ill. 177; Galveston City Ry. Co. v. Hook & Green (1890), 40 Ill. App. 547; Potter v. Bank of Ithaca (1843), 5 Hill, 490; Snydam v. Morris Canal & Canking Co. (1843), 6 Hill, 217, and People v. Wemple (1892), 131 N. Y. 64.

7 Cutcher v. Ky. (1891), 141 U. S. 47; Cooper Mfg. Co. v. Ferguson (1885), 113 U. S. 127; Pembina Mining Co. v. Pa. (1888), 125 U. S. 181; People v. Wemple (1892), 131 N. Y. 64; Norfolk & Western Ry. Co. v. Pa. (1890), 136 U. S. 114; McCall v. Cal. (1890), 136 U. S. 104; Gloucester Ferry Co. v. Pa. (1885), 114 U. S. 196; Robbins v. Shelby County Taxing District (1887), 120 U. S. 489; Paul v. Va. (1868), 8 Wall. 168.

than of right. It is within the power of the local sovereign either to exclude foreign corporations altogether from doing business within its jurisdiction, or it may prescribe regulations under which they may be admitted. Its power in this direction is limited only by a proper interpretation of the federal constitution."

Professor Kirchner, in his lectures on Private International Law, says: "Comity is the self-imposed duty of the state to apply by its courts to controversies between private parties, the laws or acts of a foreign jurisdiction when and in so far as they may be pertinent to the matter in hand." He thus makes it more than mere courtesy, but, if the duty be self-imposed, there is no power outside of the state to enforce it, and, hence, the state may extend or withhold it at will. This, too, is the view held by Mr. Justice Field in the opinion above referred to, for, after saying that the recognition of the existence of a foreign corporation depended purely on comity, he continues: "A comity which is never extended where the existence of a foreign corporation or the exercise of its powers is prejudicial to the interests of the state or repugnant to its policy." Comity is attended by no legal sanction. It is merely the good will of one state extended to a sister state at the will of the former. "It may extend it or refuse it or, having once extended it, it may revoke or modify it, and this is the law, and all the cases which enunciate the doctrine of comity enunciate the power to exclude." The constitutional. limitations are five in number: (1) Congress shall have power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. Art. 1, sec. 8. (2) No state shall lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws. Art. 1, sec. 10, cl.

2.

(3) No state shall without the consent of congress lay any duty of tonnage. Art. 1, sec. 10, cl. 3. (4) The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states. Art. 4, sec. 2. (5) No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property with

out due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Art. 14, sec. 1, amendments.

Foreign Corporations Are Not Entitled to the Privileges and Immunities of Citizens.— Treating the last two restrictions, first, the most difficult question will be to determine how far and for what purposes a foreign corporation may be said to be a citizen. The law is well settled now "that a corporation may, for the purposes of suit, be said to be born when, by law, it is created or organized, and to reside, where, by or under the authority of its charter, its principal office is." A corporation, therefore, created by or organized under the laws of a particular state and having its principal office there, is, under the constitution and laws of this country for the purpose of suing and being sued, a citizen of that state, possessing all the rights and having all the powers its charter confers."'8 In the earlier cases it was held that the citizenship of a corparation, for the purposes of the suit, was determined by the citizenship of its members, and that in order to be a citizen of a certain state all its members must be citizens of that state." This rule, however, was changed, and the unquestioned rule now is that laid down in Louisville, Cincinnati, & Charlestown Ry. Co. v. Letson,10 that where a corporation is created by the laws of a state the legal presumption is that its members are citizens of that state in which alone its corporate body has a legal existence; and that a suit by or against a corporation in its corporate name must be presumed to be a suit by or against citizens of the state which created the corporate body, and that no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of the courts of the United States."'ll

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A foreign corporation is a citizen within the meaning of the constitution, when, after it has entered a foreign state and been per

8 Ry. Co. v. Koontz (1881), 104 U. S. 5.
9 Bank v. Deveaux, 5 Cranch, 61.
10 2 How. 497, 558.

11 Ohio & Miss. Ry. Co. v. Wheeler (1861), 11 Black, 236; Marshall v. Balt. & O. Ry. Co. (1853), 16 How. 314; Covington Drawbridge Co. v. Shepherd (1857), 20 How. 227; Paul v. Va. (1868), 8 Wall. 168; Railway Co. v. Harris (1870), 12 Wall. 65; Kailway Co. v. Koontz (1881), 104 U. S. 5; Steamship Co. v. Tugman, (1882), 106 U. S. 118.

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mitted to do business there, the state seeks to deprive it of its property without due process of law; but farther than this the courts have not gone, and there is a long line of decisions holding that it is not a citizen, within the meaning of the constitution, excluding the two exceptions noted. "Whatever may be the implied powers of aggregate corporations by the common law and the modes by which these powers were to be carried into operation, corporations created by statute must depend both for their powers and mode of exercising them upon the true construction of the statutes creating them."'12 "Being," then, "a mere creature of the law" and not a citizen, "it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.' In the case of Paul v. Virginia, the court said: "If, on the other hand, the provisions of the constitution could be construed to secure to citizens of each state, in other states, the peculiar privileges conferred by their laws, an extraterritorial operation would be given to local legislation utterly destructive of the independence and harmony of the states. At the present day corporations are multiplied to an almost indefinite extent. There is scarcely a business pursuit requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them. And if, when composed of citizens of one state, their corporate powers and franchises could be exercised in other states without restriction, it is easy to see that with the advantages thus possessed the most important business of those states would soon pass into their hands. The principal businesses of every state would, in fact, be controlled by corpora tions created by other states." "If the right asserted of the foreign corporation, when composed of citizens of one state, to transact

to limit the number of corporations doing business therein. They could not charter a company for any purpose, however restricted, without opening the door to a flood of foreign corporations to engage in the same pursuits." "They could not repel an intruding corporation except on the condition of refusing incorporatioa for a similar purpose to their own citizens, and it may be of the highest public interest that the number of corporations in the state be limited; that they be required to give publicity to their transactions; that they submit their affairs to proper examination; to submit to forfeiture of their corporate rights in case of mismanagement; and that their officers be held to a strict accountability for the manner in which the business of the corporation is carried on and be liable to summary removal."

Neither Are Foreign Corporations Entitled to the Privileges and Immunities of Domestic Corporations. The principal reasons are that "the grant of a franchise to a corporation is nothing more than the grant of a special privilege given to it by the sovereign creating it. The corporation exists entirely by virtue of this privilege expressed in its charter, and the laws of the state granting this can have no force or effect outside of its own boundaries. Mr. Justice Field, in rendering the opinion of the court in Paul v. Virginia, said: "The privileges and im-. munities secured to citizens of each state in the several states by the provision in question, are those privileges and immunities which are common to the citizens of the latter state under their constitution and laws by virtue of their being citizens of that state, and special privileges enjoyed by citizens in their own states are not secured in other states by this provision." "Special privileges which are must, therefore, be enjoyed at home only unless the assent of the foreign state to their enjoyment be given." Hence, it follows that a corporation possessing special privileges

conferred

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