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in some cases of larceny. Obtaining concessions whereby transportation at less than the published rate is secured is considered a continuing act. If the illegal act is complete when the concession is secured and the goods delivered to the carrier, it is difficult to see how part of the same illegal act is committed every time the goods pass into a new district.

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EXCLUSIVE FEDERAL CONTROL OVER NATIONAL BANKS. It was early settled that Congress had the power to create national banks, as instruments "necessary and proper" for carrying on the fiscal operations of government.1 And to enable these banks to exercise their national functions of providing a currency and of creating a market for government loans, the grant of ordinary banking powers is justified. Furthermore, to assure the efficiency of these federal agencies, it is necessary that both in the exercise of their national functions and in their ordinary banking business they should be protected from any state interference which might impair or destroy their usefulness. It is accordingly settled that a state cannot tax a national bank, unless the federal government give special permission. It seems obvious that any interference with the purely national functions of the bank is unconstitutional. The ordinary business, on the other hand, is done under the general state laws unless some special act of Congress covers the matter. Thus, a national bank ordinarily takes title to property subject to the qualifications imposed by the state law. Similarly, a state law, which exempts from trustee process negotiable paper transferred before due to a bank within the state, is valid although it works to the discrimination and disadvantage of a national bank without the state. In this class of cases the state law interferes with the bank, but as it touches only the general business and does not conflict with any express law, it is upheld. But Congress, having the right to grant general banking powers, can regulate the exercise of those powers and protect the banks in that business. Unless the law be unconstitutional because not a reasonable exercise of the power to regulate or protect, or because contrary to some constitutional provision such as the Fourteenth Amendment, it will supersede the state law which formerly controlled. The national laws may supersede all state laws on the subject, or they may be merely supplemental and overrule only the laws in direct conflict. An example of the latter class is the case where the federal law mentions certain crimes of bank officers. For these crimes the officers can only be punished by the national government, but that does not prevent the state from punishing for other crimes committed by bank officers contrary to state laws. But if, on the other hand, the national government undertakes to make a system of rules and regulations covering an entire subject, such as the insolvency of a national bank, all state laws on the subject, even if not in direct conflict with the federal law, are annulled.

7 See 12 HARV. L. REV. 425.

1 McCulloch v. Maryland, 4 Wheat. (U. S.) 316.

2 Osborn v. Bank, 9 Wheat. (U. S.) 738.

8 McCulloch v. Maryland, supra; People v. Bank, 123 Cal. 53.

4 McClellan v. Chipman, 164 U. S. 347.

5 Bank v. Augusta, etc., Co., 104 Ga. 403.

6 Hawley v. Hurd, etc., Co., 72 Vt. 122.

7 State v. Tuller, 34 Conn. 280.

8 Easton v. Iowa, 188 U. S. 220. See 17 HARV. L. REV. 133.

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ilarly, the National Banking Act, which provides what interest the banks can charge and the results and penalties of taking usury, has been construed as sweeping away all state usury laws as far as they affect national banks." A recent New York case shows the far-reaching effect of this doctrine. The proposition is upheld that a note between A and B, which by state law is absolutely void for usury, is enforceable when discounted by a national bank. Schlesinger v. Gilhooly, 189 N. Y. 1.10 Thus, through the power to say that a defense given by the state shall not be good against a national bank, the whole law of the state as to usury is rendered ineffective, for a note otherwise void can be made enforceable, as to the principal at least, by a sale to a national bank. The result is astounding, but seems a logical consequence of the power of Congress to pass exclusive laws as to the business dealings of national banks.

I.

RECOVERY UNDER EXECUTORY ILLEGAL CONTRACTS. It is a general rule of law that no cause of action arises out of an illegal contract whether recovery be sought on the contract for a breach of it or in quasi-contract. It is the settled policy of the law not to allow a legal right to be based upon an illegal transaction. Under no circumstances, it seems, can there be a recovery if the contract contemplates the performance of an act which is malum in se; for in such cases the formation, as well as the performance of the contract, is an injury to the state. Thus, where there is an agreement to share the proceeds of a common crime, one criminal cannot recover from the other who takes the whole. Again, if the illegal act, though only malum prohibitum, has been completed in whole or in part, the law will not interfere if the parties are equally at fault, for the harm to the state can no longer be prevented. Thus, where a bankrupt paid a creditor a sum of money not to appear at his examination, nor to oppose his discharge, the bankrupt was not allowed to recover after the defendant had failed to appear at the examination, though no application for the discharge had been filed.*

But where the purpose of the contract is not malum in se, and is not accomplished, a recovery has been allowed in two sorts of cases. The first class is where neither party agrees to do an act illegal in itself, apart from the contract, but where the performance becomes illegal because done in pursuance of the contract. This includes the so-called "stakeholder cases," in which the loser is allowed to recover from the winner, if the stakeholder pays over the stakes after the loser has revoked his authority. The policy of allowing a recovery in these cases is clear; either party is given a chance to avoid the contract and prevent its performance. The second class includes those cases in which, having paid the defendant to commit an illegal act, the plaintiff is allowed to disaffirm the contract at any time before the defendant has performed, and to recover that which he has advanced. Thus,

9 Farmers', etc., Bank v. Dearing, 91 U. S. 29.

10 See 20 HARV. L. REV. 581.

1 See Spring Co. v. Knowlton, 103 U. S. 49.

2 The Highwayman's Case, Scott, Cas. on Quasi-Contracts, 666. See Tappenden v. Randall, 2 B. & P. 467.

3 If the parties are not in pari delicto, he who is less at fault may recover whether or not the contract is executed. White v. Franklin Bank, 22 Pick. (Mass.) 181. See 20 HARV. L. REV. 60.

4 Kearley v. Thomson, 24 Q. B. D. 742.

5 Love v. Harvey, 114 Mass. 80.

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where a woman paid the defendant to procure a husband for her, she was allowed to recover the money so paid, since the defendant had not performed. This, too, seems to be in accordance with the policy of the law to prevent, not the formation, but the performance of such contracts. Is a recovery allowable in a possible third class of illegal contracts, viz., those in which the plaintiff agrees to do the illegal act, and, disaffirming after he has partially performed, seeks to recover for the partial performance? It was held in a recent Massachusetts case that he can recover so long as the part performance itself was not illegal. Eastern Expanded Metal Co. v. Webb Granite and Construction Co., 81 N. E. 251. This seems correct, for as far as the illegal act is concerned the contract was still executory; and a recovery before the harm was done would tend to prevent the doing of it. Therefore the rule may now, perhaps, be broadly stated, covering all these classes of cases, that a recovery is allowed in quasi-contract for benefits furnished under a contract illegal but not malum in se, so long as no part of the illegal purpose has been consummated.

THE EXERCISE OF NON-JUDICIAL FUNCTIONS BY THE JUDICIARY. — In the European states the theory of separation of powers has been accepted as a decree that the legislative and executive branches, in the administration of public affairs, shall be free from interference by the judiciary.1 In America, however, the separation of powers has not been taken as a limitation upon the judiciary, but rather as an elevation of it to the position of an independent department of government as supreme in its particular field as either of its co-ordinate departments in theirs. If this theory of governmental organization is to be successfully executed, it is imperative that each department exercise vigilance to see that none of the functions delegated to it by the constitution are exercised by co-ordinate departments; equally, it must be careful not to infringe the prerogatives of the other branches.* Moreover, a proper respect for its dignity as an independent, co-ordinate branch of government must compel it to decline to perform duties where its final action is to be subjected to review by another department. It would seem that, with the prerogatives of each department thus guarded, the whole purpose of the separation of powers is achieved. Subject to these limitations each department should be free to perform any duties assigned to it. The practical difficulties in the operation of this scheme of government arise from the fact that all the functions of government are not capable of being readily subjected to classification as executive, legislative, or judicial. Indeed it is asserted that some of the functions of government may equally well be assigned to any one of the departments. However, the tendency of the courts has been to insist that none but judicial functions may be exercised by the

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6 Hermann v. Charlesworth, [1905] 2 K. B. 123. See 12 HARV. L. REV. 436.

1 Lowell, Governments and Parties in Continental Europe, 55.

2 See The Federalist, Number 51.

See Taylor v. Place, 4 R. I. 324.

4 Norwalk Street Ry. Co's Appeal, 69 Conn. 576; Shephard v. Wheeling, 30 W. Va. 479; Auditor v. Atchison, etc., R. R. Co., 6 Kan. 500.

Note to Hayburn's Case, 2 Dall. (Ú. S.) 410. See United States v. Ferreira, 13 How. (U. S.) 40.

Paul v. Gloucester County, 50 N. J. L. 585. Cf. State v. Brill, 111 N. W. 639 (Minn.); Salem, etc., Corporation v. County of Essex, 100 Mass. 282.

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judiciary. Although this assertion may rest in part on a theory that the constitution has granted to the judiciary only judicial powers, it seems generally due to the repetition of a dictum by federal judges on their refusal to render a judgment which would be subject to revision by the executive department. If it is proper for the judiciary to decline to perform any but judicial functions, it must also be proper for the executive to decline to perform aught but executive functions, and for the legislature to refuse to do anything not in its essence legislative. And consequently, if it is true that some functions of government do not properly fall within any particular department, either the constitutional machinery is hopelessly inadequate or this theory of limitation of departmental activity must fall.

It is inconceivable that the introduction into our constitutions of the theory of the separation of powers makes it possible that any function of government must remain unexercised because of difficulty in ascertaining to which department it properly belongs. Certainly the judiciary cannot, with propriety, decline to perform a duty attempted to be imposed upon it, unless the department to which that duty belongs is definitely ascertained to be one other than the judicial. 10 The Appellate Division of the Supreme Court of New York has recently sustained the constitutionality of a statute which imposed on the courts the duty of rendering decisions on disputed election ballots, counting all the ballots cast, and issuing an order which should supersede the regular election returns. Metz v. Maddox, 105 N. Y. Supp. 702. Although this statute imposes duties which differ in many respects from those ordinarily performed by courts, it does not seem possible to attribute those duties with certainty to either the executive or the legislative departments. It is therefore conceived that the true theory of the separation of powers supports the assumption of this burden by the judiciary.11

NATURE OF THE INTEREST CREATED BY AGREEMENTS RESTRICTING THE USE OF REALTY. It is admittedly law that an agreement restricting the use of land is enforceable in equity. But the true nature of the right acquired is as yet unsettled. It has been likened to a combination of a specifically enforceable contract and a constructive trust,1 and compared with a warranty of title 2 and with a negative easement. It has many points of resemblance to this last, though not rising to the dignity of a true legal easement. neither case has the owner of the dominant estate any right to do an act on the servient; and in both the right should properly arise by covenant and not by grant. It has been argued that a right of property is destroyed by a restrictive agreement and belongs to no one; but this is no more true than in the case of a negative easement. If there is an agreement not to build,

7 In the Matter of the Application of the Senate, 10 Minn. 78.

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8 The Constitution of the State of New York does not expressly confide the judicial power to the courts.

9 Note to Hayburn's Case, supra.

10 State v. Bates, 96 Minn. 110.

11 Cf. Citizens Bank v. Town of Greenough, 173 N. Y. 215; Forsythe v. City of Hammond, 68 Fed. 774; Robinson v. Kerrigan, 90 Pac. 129 (Cal.); Somerset v. Hunterdon, 52 N. J. L. 512.

1 See 5 HARV. L. REV. 274.

2 See 17 HARV. L. REV. 174.

3 See Fry, J. in Dalton v. Angus, 6 App. Cas. 740, 771.

neither the promisor nor the promisee can build on the promisor's land; if there is an easement for lateral support, neither the owner of the servient nor the owner of the dominant tenement can excavate on the servient. But the right is not destroyed; it is merely divided, since either can act with the other's consent. The benefit of such a covenant passes to the purchaser of the covenantee's land whether he knew of the covenant or not,* and the covenantor is free from all liability as soon as he conveys away his land. The land is bound in the hands of subsequent grantees, underlessees, or mere occupiers,' with notice; or even, it is believed, in the hands of one who has acquired the title by adverse possession. Moreover, such agreements have been held to create interests in land within the statute of frauds. The fineness of the distinction between these rights and negative easements is further indicated by the fact that a covenant not to obstruct lights will create a legal easement,10 while a covenant not to build beyond a certain line will not.

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The question whether the right created by a restrictive agreement is a property right, was presented in a recent case of eminent domain proceedings, in which the court refused to allow the owner of such a right compensation, on the ground that he had no common law easement. Wharton v. United States, 153 Fed. 876 (C. C. A., First Circ.). Even if these rights are not true common law easements, practically the only distinction, as we have seen, is that they are enforceable only in equity, and consequently can be extinguished by a sale to a bona fide purchaser. Therefore, at the present time, when the differences between law and equity have been so greatly diminished, and when the registry acts give constructive notice, there seems to be no valid reason why such rights should not be held property rights, equitable rights only, to be sure, but still property. At all events, when land subject to restrictive agreements is taken by eminent domain, in justice, and on analogy to cases of inchoate dower,11 it seems clear that the government should pay the owner of the quasi-servient estate its value when discharged of the easement, and that he, in turn, should account to the owner of the quasi-dominant for a just share of the compensation received. For the same reasons it follows that if the owner sells the land to a bona fide purchaser he should account for a share of the proceeds, since he has received the full value of the land unencumbered, and has destroyed at least an equitable property right.

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RECENT CASES.

ATTORNEYS - DUTIES Attached to the Office — Order to Pay UNENFORCEABLE OBLIGATION. - A solicitor wrote to his client's former solicitors that the client had placed in his hands the full amount of their bill, so that he

4 See Rogers v. Hosegood, [1900] 2 Ch. 388, 406.

5 Hall v. Ewin, 37 Ch. D. 74.

6 Johns Bros. v. Holmes, [1900] 1 Ch. 188.

7 Mander v. Falke, [1891] 2 Ch. 554.

8 Re Nisbet and Potts Contract, [1906] I Ch. 386.

9 Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; Rice v. Roberts, 24 Wis. 461. The cases seemingly opposed are based on principles of fraud or estoppel. See Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 609.

16 Ladd v. Boston, 151 Mass. 585.

Moore v. City of New York, 8 N. Y. 110; Wheeler v. Kirtland, 27 N. J. Eq. 534

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