Newcastle was void because one cannot be bound to himself." It is easily conceivable that this emphasis upon the headship of the corporate body might have resulted in the conception that the title to the common property was vested in him and that his action should be corporate action per se. Few things are better settled in our law than that this is not the nature of the corporate organism, yet it is only on such a theory that the present decision can find support. 10 9 When statutes provide that affidavits shall be made by one who has a certain interest, his agent, or attorney, there seems to be no overpowering necessity that such an affidavit, when made by an agent, shall bear internal evidence of the agent's authority. Nevertheless, it has been held that such an agent must in his affidavit allege his authority to act. In general, however, the courts have been satisfied by any words which indicate that the affiant acts as agent for the proper person. Since the implied authority of corporate administrative officers is usually broad enough to cover this situation," it would seem that a mere statement of his official position should fulfil the requirement of the courts.12 If, however, the affidavit of an agent must comply with certain specific requirements, it would seem that, unless our theory of corporations is to be remoulded along rather astonishing lines, the affidavit of the officer of a corporation must fulfil those conditions.1 18 RECENT CASES. ADMIRALTY TORTS TEST OF JURISDICTION. A steamer broke loose from her moorings and damaged a bridge. The bridge-owners filed a libel against the steamer in admiralty. Held, that the court has no jurisdiction of the subject-matter. Cleveland, etc., R. R. Co. v. Cleveland S. S. Co., 208 U. S. 316. This case shows the disinclination of the Supreme Court to disturb its old rule that admiralty jurisdiction of a tort is to be determined by the locality of the consummation of the act. The Plymouth, 3 Wall (U. S.) 20. The rule, however, has been broken into to the extent that injury by a ship to a structure erected in aid of navigation, though affixed to the land, is within that jurisdiction. The Blackheath, 195 U. S. 361. That case might be distinguished in that the injury was to a beacon, and beacons have from ancient times been subject to admiralty jurisdiction. Crosse v Diggs, 1 Sid. 158. But in view of the early tendency to put a liberal construction on the constitutional grant of this jurisdiction to the federal courts, and of the clearly sound policy of that tendency, the rule should be regarded as thus modified. See The Vengeance, 3 Dall. (U. S ) 297. The Admiralty Court Act, 1861, gives the English admiralty jurisdiction over "any claim for damage done by any ship." See The Swift, [1901] P. 168. The doctrine of continental Europe is equally broad. See 7 Y. B., 21 Edw. IV, f 15, f 68, cited in 1 Pollock & Maitland, History of Eng. Law, 492, n. 3. 8 See Duffie v. Black, 1 Pa. St. 388. 9 Miller v. Chicago, etc., Ry. Co., 58 Wis. 310. 10 Smith v. Victorin, 54 Minn. 338; Wetherwax v. Paine, 2 Mich. 555. 11 Sumner v. Dalton, 58 N. H. 295. But cf. Mahone v. Manchester, etc., R. R. Co., III Mass. 72. 12 First Nat'l Bank v. Graham, 22 S. W. 1101 (Tex., Ct. App.). 18 See New Brunswick, etc., Co. v. Baldwin, 14 N. J. L. 440; Shaft v. Phoenix Life Ins. Co., 67 N. Y. 544. BENEDICT, ADм. PRAC., 3 ed., 91 et seq. Since international uniformity is peculiarly desirable in admiralty matters, it is to be regretted that the court, with the wiser foreign rule before it, was bound by its old decisions. ALIENS PREFERENCE GIVEN TO LOCAL CREDITORS BY STATE COURTS.— A, a foreigner, brought a tort action against B, an insolvent foreigner in Wisconsin, at the same time garnisheeing B's account in the X bank. After A had obtained judgment against B, C, a citizen of Wisconsin, sued B, and intervened in the garnishment process. Judgment was given for C. A appealed to the United States Supreme Court. Held, that such discrimination by a state in favor of its citizens is a matter of state policy, and is not unconstitutional. Disconto Gesellschaft v. Umbreit, 208 U. S. 570. Before the National Bankruptcy Act many states adopted a policy of discrimination against non-resident creditors in favor of their citizens. Thus, where a debtor made a voluntary assignment and owned property in another state, only citizens of that state could attach the property. Bacon v. Horne, 123 Pa. St. 452; contra, Paine v. Lester, 44 Conn. 196; see 7 HARV. L. REV. 281. Nor could the assignee pursue his claims to the detriment of resident creditors. Hunt v. Columbian Ins. Co., 55 Me. 290. Since the constitutionality of this policy was upheld, a fortiori discrimination against a foreigner would not be unconstitutional. This case was decided in the state court on the ground that, since the court could refuse to entertain a tort action between two foreigners, it would refuse to allow a foreign creditor to withdraw funds from the state when the claims of intervening domestic creditors were unsatisfied. Disconto Gesellschaft v. Umbreit, 127 Wis. 651. But the right of an alien to sue an alien for a foreign tort is a common law right and not within the discretion of the court. I WHART., CONF. of L., 5, 64. To limit this right seems a clear case of judicial legislation, but it is certainly not a discrimination within the Fourteenth Amendment. ARBITRATION AND AWARD - REVOCATION OF SUBMISSION TO ARBITRATION BY DEATH OF A PARTY. A building contract contained a condition that any dispute between the parties as to the price to be paid for extras should be submitted to arbitration. A dispute having arisen, the submission was made a rule of court. Before final award was made one of the parties died. Held, that the proceedings can be continued by the personal representatives of the deceased. In the Matter of an Arbitration between Donovan and Burke, 42 Ir. L. T. 68 (Ire., K. B. D., Feb. 3, 1908). At common law a submission to arbitration was revocable at the will of either party at any time before the award was finally made. Green v. Pole, 6 Bing. 443. This was so even when the submission was made a rule of court. Skee v. Coxon, 10 B. & C. 483. The arbitrator being only an agent, it was held that his authority, and hence the submission, was revoked by the death of one of the parties, unless there was in the submission an express clause to the contrary. Blundell v. Brettargh, 17 Ves. 232. The principal case is therefore clearly opposed to the English common law under which it admittedly should have been decided. In England the matter is now largely covered by statutes which provide that after the appointment of an arbitrator, the death of either of the parties shall not operate as a revocation. See RUSSELL, ARBITRATION, 9 ed., 129, 131. Statutory provisions of this nature are common in the United States, but in the absence of statute the courts have followed the English common law doctrine that the submission is revoked by the death of either party. Gregory v. Boston Safe Deposit, etc., Co., 36 Fed. 408. BANKRUPTCY DISCHARGE OBTAINING MONEY BY FALSE STATEMENT IN WRITING. The plaintiff obtained from the defendant a loan of money on the faith of a materially false statement in writing. § 146 (3) of the Bankruptcy Act of 1898 as amended in 1903 provides that a bankrupt "obtaining property on credit. upon a materially false statement in writing" shall be denied a discharge. Held, that the plaintiff is not entitled to a discharge. In re Pfaffinger, 19 Am. B. Rep. 309 (C. C. A., Sixth Circ., Jan. 1908). It is said that the words of a statute are to be taken in the sense in which they will be understood by that public in which they are to take effect. United States v. Isham, 17 Wall. (Ù. S.) 496. And as the phrase "obtaining property on credit" does not ordinarily import to the commercial public a borrowing of money on time, it is argued that procuring cash by false statements is not cause for denying discharge. COLLIER, BANKRUPTCY, 6 ed., 198. But the law recognizes property in cash. And statutes defining the offense of obtaining property by false pretenses do not distinguish property in cash from property in other forms. See State v. Rowley, 12 Conn. 101. Money, then, clearly comes within the terms of the Act. Also in other sections of the Act "property" has been held to include money. See Pirie v. Chicago, etc., Co., 182 U. S. 438. As nothing in the Act shows that the intention of Congress was to favor bankrupts who operate in cash, the present case must be supported. See In re Dresser & Co., 144 Fed. 318. BANKRUPTCY - POWERS ANd Duties of Trustee - RECOVERY OF FRAUDULENTLY TRANSFERRED PROPERTY. A trustee in bankruptcy filed a bill in equity to have a fraudulent transfer from the bankrupt to the defendant set aside. The defendant pleaded in bar that the complainant, with full knowledge of the facts, had ratified the transfer by obtaining a judicial order requiring the bankrupt to turn over the balance of the amount received from the defendant for the transferred property and unaccounted for. Held, that the plea is a valid defense. Thomas v. Sugerman, 157 Fed. 669 (C. C. A., Second Circ.). The court relies on the doctrine of equitable estoppel, as found in cases of conversion, where a plaintiff, having first brought an action ex contractu, is held to have elected to pass title, so that he cannot thereafter recover for the conversion. Terry v. Munger, 121 N. Y. 161. The analogy is specious rather than convincing. For the case does not seem to present an election by the trustee between inconsistent rights. On the contrary, he is but carrying out two statutory duties: the one, to collect property in the possession of the bankrupt; the other, to proceed against the bankrupt's fraudulent grantees. Indeed, if he neglects the former, he may be liable in damages. In re Reinboth, 157 Fed. 672; see 21 HARV. L. Rev. 441. A trustee's authority under the Bankruptcy Act is closely restricted, and the sole provision for his passing title is under § 70 c, on a sale of bankrupt property. It scarcely seems within the spirit of the Act to argue that a trustee, by merely performing a duty, has ratified the bankrupt's fraudulent transfer and made a sale to the detriment of the creditors. BANKRUPTCY PREFERENCES - PAYMENT TO PUBLIC AGENT FOR HIS PRINCIPAL. A bankrupt preferred a town, making the payment to the township trustees, an office created by statute, and given power to sue and be sued on certain contracts. The trustees knew of the bankruptcy. Held, that they are liable to the bankrupt's assignee. Painter v. Napoleon Township, 156 Fed. 289 (Dist. Ct., N. D. Oh.). See NOTES, p. 534. BANKRUPTCY RIGHTS AND DUTIES OF BANKRUPT - EFFECT OF ADJUDICATION ON TITLE TO BANKRUPT'S PROPERTY BEFORE APPOINTMENT OF TRUSTEE. The plaintiff's property was insured by the defendant company. The policy contained a condition that the policy should become void if any change took place in interest, title, or possession. After the plaintiff had been adjudicated a bankrupt, but before the appointment of a trustee, the property was destroyed. Held, that the policy has not become void. Gordon v. Mechanics', etc., Ins. Co., 45 So. 384 (La.). See NOTES, p. 531. BILLS AND NOTES-FICTITIOUS PAYEE - EFFECT OF DRAWER'S INTENTION. The plaintiff, on the fraudulent representation of A, and to pay for shares of stock alleged to be for sale by B, drew a check payable to the order of B, who was ignorant of the transaction and had no such stock. A then indorsed the check, using the payee's name, to the defendant bank, a bona fide purchaser for value. The defendant collected the amount from the plaintiff's bank, which amount the plaintiff seeks to recover. Held, that the defendant is not entitled to the proceeds of the check. North and South Wales Bank v. Macbeth, 24 T. L R. 397 (Eng., H. of L., March 5, 1908). For a discussion of this case in the Court of Appeal, see 21 HARV. L. REV. 214. CARRIERS CONNECTING LINES LIABILITY OF INITIAL CARRIER FOR INJURIES OCCURRING ON CONNECTING Lines. - The defendant accepted the plaintiff's goods for transportation beyond its own line, receiving full payment and issuing a through bill of lading. The goods were injured while in the possession of a connecting carrier. Held, that the defendant is liable. St. Louis, I. M. & S. Ry. Co. v. Randle, 107 S. W. 669 (Ark.). A carrier's liability for injuries not occurring on its own line arises only by contract express or implied. Whether such a contract is to be implied from the circumstances of a particular shipment is properly a question for the jury. Gray v. Jackson, 51 N. H. 9. The present case, however, follows the English rule that, as a matter of law, mere acceptance of the goods for carriage beyond the carrier's line constitutes an implied contract of through carriage. In this country the greater distances and dangers, making the hardship to the carrier seem larger, apparently prevented its adoption generally; and, since the acceptance is obligatory, this rule is certainly too strict. Cf. Nutting v. Conn. R. R., 1 Gray (Mass.) 502; Van Santvoord v. St. John, 6 Hill (N. Y.) 157. Nevertheless the shipper's difficulties, first in placing responsibility for a loss and then in suing in a distant state, demand that a through contract should be readily implied, especially as the carrier may to some extent limit his liability by express contract. Therefore the result in the present case, where a through rate was made and a through bill of lading issued, each in itself strong evidence of a through contract, seems correct. R. R. Co. v. Pratt, 22 Wall. (U. S.) 123. CONFLICT OF LAWS ·OBLIGATIONS EX DELICTO RECOVERY FOR CARRIER'S FAILURE to Deliver. The plaintiff delivered goods to the defendant carrier in Kansas for transportation to Massachusetts. The goods were destroyed in Kansas under circumstances rendering the carrier liable. The plaintiff sued in Missouri ex delicto for failure to deliver, and by the law of the forum, if an action was barred by the statute of limitations in the state where it arose, no action would lie. Held, that the right of action arose in Massachusetts and that the Kansas statute of limitations is inapplicable. Merritt Creamery Co. v. Atchison, T. & S. F. Ry. Co., 107 S. W. 462 (Mo., K. C. Ct. App.). It is generally recognized that a common carrier through whose fault goods are destroyed is subject to an action either ex contractu or ex delicto. Denman v. Chicago, etc., Co., 52 Neb. 140. If the suit is ex contractu, the validity of the contract and the extent of the carrier's obligation should be governed by the lex loci contractus. See 10 HARV. L. REV. 168. But if the contract is broken, the right to damages is a cause of action arising at the place of performance, since it is there that the promisor breaks his contract. See 17 HARV. L. REV. 354. When sued in tort, however, the obligation of the carrier as well as its breach is governed by the law of the place where the acts complained of occurred. Indiana, etc., Co. v. Masterson, 16 Ind. App. 323. Had the plaintiff sued in contract for the breach, his cause of action would certainly have arisen in Massachusetts. Curtis v. Delaware, etc., Co., 74 N. Y. 116. But the defendant is under a duty, apart from contract, to deliver. Raphael v. Pickford, 5 M. & G. 551. The cause of action founded on a breach of this duty also arose in Massachusetts, and the present case is sound in so holding. CONSTITUTIONAL LAW - DUE Process of LAW CONSTITUTIONALITY OF STATUTE AUTHORIZING SERVICE BY PUBLICATION ON CORPORATIONS. A domestic corporation was served by publication according to Virginia Code, 1904, § 3225, which provides for publication of process once a week for four successive weeks in a newspaper, published in the state, in case no person who can be served for the corporation is in the county where suit is brought. Held, that such service does not violate the federal Constitution. Ward CONSTITUTIONAL LAW-LOCAL SELF-Government STATE COMMISSIONER FOR THE ENFORCEMENT of Liquor Laws. - A statute authorized the appointment of a commissioner who should have power to exercise all the powers of the prosecuting attorneys in their respective counties in the enforcement of the state liquor laws. Held, that the functions essentially connected with officers named by the constitution can only be discharged by constitutional officers, and therefore this statute is unconstitutional. Ex parte Corliss, 114 N. W. 962 (N. Dak.). For a discussion of the principles involved, see 15 HARV. L. REV. 848; 13 ibid. 441. UTE. CONSTITUTIONAL LAW-POWER OF THE JUDICIARY FEDERAL Court ENJOINING STATE ATTORNEy-General frOM ENFORCING A STATE STATThe legislature of Minnesota fixed rates for the railroads of the state, and prescribed heavy penalties for each deviation therefrom. The federal circuit court enjoined the state attorney-general from proceeding under these statutes pending the decision of their constitutionality. He disobeyed the injunction, and the circuit court committed him for contempt. Alleging that, because of the Eleventh Amendment, the court was without jurisdiction, he instituted habeas corpus proceedings in the Supreme Court. Held, that, irrespective of the sufficiency of the rates, the statutes are unconstitutional, and the court has jurisdiction to enjoin the attorney-general from enforcing them. Ex parte Young, U. S. Sup. Ct., March 23, 1908. See NOTES, p. 527. CONTRACTS · CONSTRUCTION - EXCEPTION OF HOLIDAYS FROM TIME ALLOWED BY CHARTER-PARTY FOR LOADING VESSEL. By the terms of a charter-party the plaintiffs were to load the defendant's vessel "in seven weather working days (Sundays and holidays excepted)." For every day saved the plaintiffs were to be paid despatch money; for every day in excess they were to pay demurrage. They loaded the vessel in seven days, the work being continued through two holidays, and sued for despatch money for the two days saved. Held, that the plaintiffs can recover. Nelson & Sons, Ltd., v. Nelson Line, Liverpool, Ltd., 24 T. L. R. 315 (Eng., H. of L., Feb. 6, 1908). This decision reverses that of the lower court, criticized in 21 HARV. L. REV. 217. CORPORATIONS — ACQUISITIOn of MemberSHIP Assessments for PreLIMINARY EXPENSES. — The plaintiff, receiver for a corporation, sued the defendant on an assessment. Held, that so far as the assessment is to pay expenses of organization the defendant is liable, even if the entire capital has not been subscribed. Myers v. Sturges, 123 N. Y. App. Div. 470. It is undoubted law that in the absence of special provisions a corporation cannot recover the full amount on subscriptions to its stock unless the entire capital has been subscribed. Peoria and Rock Island Ry. v. Preston, 35 la. 115. In establishing a different rule for assessments to cover the preliminary expenses, the court relied on an earlier case which reached the same result, but in that case special provisions in the charter of the corporation were particularly noticed and seem sufficient to distinguish it from the present case. Salem Mill Dam Corp. v. Ropes, 6 Pick. (Mass.) 23; see also Anvil Mining Co. v. Sherman, 74 Wis. 226. In principle, the reasons upon which the general rule is based seem equally pertinent here. If a subscriber does not contract to pay the full price until all the stock is taken, it appears unwarranted to assume that he agrees to become liable for the preliminary expenses at an earlier time. The question turns solely on the proper construction of his promise, and he no more contemplates becoming liable for one kind of expenditure than for another. |