where she was incapable by the laws of that state, although capable by those of her domicile. Held, that she is bound by her promise. Freret v. Taylor, 44 So. 26 (La.).

There is great conflict on whether the law of the domicile or the law of the place of making should prevail as to capacity to make simple commercial contracts. The prevailing rule in the United States seems to hold void those of married women when they are incapable by the law of the place of making. Nichols, etc., Co. v. Marshall, 108 la. 518. England and the Continental nations take an opposite view. Guepratte v. Young, 4 De G. & Sm. 217; STORY, CONF. OF LAWS, 7 ed., 65. By the weight of divided authority she is liable when capable by the law of the place of making. Milliken v. Pratt, 125 Mass. 374; Bell v. Packard, 69 Me. 105; contra, First Nat'l Bank v. Shaw, 109 Tenn. 237. Considering the immense amount of business done by nonresidents in our states, it would seem that the better rule as to simple commercial contracts is to follow the law of the place of making, rather than to throw on business men the burden of finding out the law of their promisors' domicile. Furthermore, the case under discussion concerns realty; and contracts of this sort seem usually to be governed by the law of the place where the land is situated, rather than by that of either the domicile or the place of making. Swank v. Hufnagle, 111 Ind. 453.

CONSTITUTIONAL LAW-DUE PROCESS OF LAW Legislative RegulaTION OF GAS RATES. - - In a suit by a gas company to recover the price of gas furnished to the city of New York, the city set up the defense that the price was unreasonable, although less than the maximum rate fixed by the legislature. Held, that the statutory fixing of a maximum rate is equivalent to express legislative authority to charge up to that rate; and that no constitutional right of the consumer is thereby impaired even though the legislative rate is unreasonably high. Brooklyn Union Gas Co. v. The City of New York, 188 N. Y. 334. For a discussion of the case in the lower court, see 20 HARV. L. Rev. 69.

CONSTITUTIONAL LAW-Due Process OF LAW-RAILROAD TO FURNISH PARTICULAR SERVICE. In order to make an important connection with another road, the Corporation Commission of North Carolina ordered a railroad to operate a particular passenger train. It appeared that this train could only be operated at a loss, but that the carrier would still be able to make a profit on its intra-state business. Held, that such an order does not deny to the carrier equal protection of the laws or due process of law. The Atlantic Coast Line R. R. Co. v. The North Carolina Corporation Commission, 206 U. S. 1. See NOTES, p. 49.

CONSTITUTIONAL LAW-PERSONAL RIGHTS - FREEDOM TO CONTRACT. – A statute made it unlawful for an employer to issue to an employee for labor performed any ticket, check, or writing redeemable in goods or merchandise. Held, that the statute is unconstitutional. Jordan v. State, 103 S. W. 633 (Tex., Ct. Crim. App.).

For a discussion of the principles involved, see 19 HARV. L. Rev. 62.

CONSTITUTIONAL LAW - POWERS GRANTED TO CONGRESS AND TO THE FEDERAL JUDICIARY. Kansas filed a bill in the United States Supreme Court to restrain Colorado from using the waters of the Arkansas River for irrigation purposes. The United States sought to intervene on the ground that Congress had power to regulate the matter by legislation. Held, that the Supreme Court has jurisdiction, and that the United States has no right to intervene. Kansas v. Čolorado, 206 U. S. 46. See NOTES, p. 47.

CORPORATIONS - DIRECTORS AND OTHER OFFICERS - DIRECTOR'S RIGHT TO BUY CORPORATION'S PROPERTY AT EXECUTION Sale. The defendant loaned money to a corporation of which he was a director. Upon failure of the corporation to repay, he brought suit and recovered judgment. At the execution sale he bought in the property. The plaintiff, a stockholder in the corporation, filed a bill to have the defendant declared a trustee. Held, that in

the absence of unconscionable conduct on the part of the defendant, the sale will not be disturbed. Marr v. Marr, 66 Atl. 182 (N. J., Ct. of Ch.). See NOTES, p. 51.

ULTRA VIRES - ASSIGNMENT

OF FRANCHISE TO

AN

CORPORATIONS INDIVIDUAL. The defendant corporation was empowered to maintain electric wire conduits in the streets of New York City, and was required by statute to furnish space in such conduits for the use of any corporation having the right to transmit electricity. The A company voluntarily assigned its franchise embracing this right to B, an individual, from whom it passed to the plaintiff corporation. Held, that the plaintiff may compel the defendant to allow it space in its conduits. Matter of Long Acre, etc., Co., 188 N. Y. 361.

A New York corporation, such as the A company, may assign its franchise to another corporation. N. Y. Laws, 1893, c. 638. No provision is made, however, for an assignment to an individual, and, apart from express authorization, such an assignment by a public service corporation is ultra vires. Stewart's Appeal, 56 Pa. St. 413. By the better view, however, it does not necessarily follow that the transfer is of no effect; the transfer has in fact been made and the title passed. Bank v. Whitney, 103 U. S. 99. This reasoning was the basis of the decision in the present case. The facts, however, present a problem somewhat different from the ordinary cases of ultra vires transfers. The plaintiff would have been a competent grantee of the franchise had the transfer been made without the intervention of B. But where a de facto corporation is the only weak link in the chain of title the position of the ultimate grantee is not prejudiced. See 20 HARV. L. REV. 457. Applying this analogy to the present case, the result reached by the court seems correct. Cf. Parker v. Elmira, etc., Co., 165 N. Y. 274.

DANGEROUS PREMISES LIABILITY TO TRESPASSERS - CHILD TRESPASSER ON TURNTABLE. The plaintiff, a boy of four or five years, entered the defendant's premises through a gap in its boundary hedge. While playing with companions on the defendant's turntable, which was not fastened, the plaintiff was injured. The jury found that the hedge was in a defective condition through the defendant's negligence. Held, that the defendant is not liable. Cooke v. Midland Great Western Railway, 41 Ir. L. T. R. 157 (Ir., Ct. App., June 14, 1907).

American rulings tend to deny the liability of a landowner to a child trespasser who has been injured through the condition of the premises, except in the so-called turntable cases, where the weight of authority seems to allow recovery. See II HARV. L. Rev. 349, 434; 12 ibid., 206. The principal case, it is believed, marks the first appearance of a turntable case in the English courts. The court finds that the defendant owes to the trespassing child no duty of care in respect to the condition of either the hedge or the turntable, and distinctly repudiates the fiction of "implied invitation" or "allurement." This decision seems in line with the reluctance of the courts to impose further restraints on a landowner's use of his land, and with the tendency of the English courts to treat a child trespasser the same as an adult.

DEEDS - PARTIES - GRANTOR AND GRANTEE SAME Person. One M granted land to herself and three others. Held, that the grantor has a onefourth undivided interest in the land. Green v. Cannady, 57 S. E. 832 (S. C.). It is clear that a grantee is incapable of taking under his own deed, since two parties are as necessary to a deed as to a contract. And a grant by A to A, B, and C in trust has been held ineffective as to A, and to vest the entire legal estate in B and C. Cameron v. Steves, 9 N. Brunsw. 141. In that case, however, the grant, by express statutory provision, created a joint tenancy. Therefore, upon familiar principles of joint tenancy, B and C properly took the entire title, and since A was incapable of taking under his own deed, their interest was not subject to any right in him. See SHEP. TOUCH., 82. But in the present case the deed was construed as creating a tenancy in common, hence it purported to pass only one-fourth of the estate to each of the grantees. Con

sequently, on the basis that a deed to the grantor is inoperative, there has been no conveyance of one-fourth of the estate, and the result reached by the court is correct.

EQUITY-JURISDICTION - Cancellation oF FRAUDULENT BIRTH CERTIFICATE. - Held, that equity has jurisdiction to perpetually enjoin the use as evidence of a fraudulent birth certificate, and to order such certificate to be cancelled. Vanderbilt v. Mitchell, 67 Atl. 97 (N. J., Ct. Err. and App.). See NOTES, p. 54.

-

HIGHWAYS ADDITIONAL Servitudes- INTERURBAN ELECTRIC RAILROADS. The defendant railway company operated a large number of passenger and freight trains daily over a ↑ rail, double track line on a city street. Trains composed of heavy railroad cars were run over this line to surrounding towns at a high rate of speed and with few stops. The plaintiff, an abutting owner of the fee of the street, sued for compensation. Held, that he cannot recover. Kinsey v. Union Traction Co., 81 N. E. 922 (Ind., Sup. Ct.).

A new use of the public easement over highways is an additional servitude, for which the abutting owners are entitled to compensation, if it is not within the general purpose for which the easement was created. Schaaf v. Railway Co., 66 Oh. St. 215. A street railway is within that purpose. Atty.-General v. Metropolitan Railroad Co., 125 Mass. 515. But a steam commercial railroad is not. Bond v. Pennsylvania Co., 171 Ill. 508. Although there is much controversy as to an interurban electric road, the weight of authority is that if it carries freight it is an additional servitude. Linden Land Co. v. Milwaukee Ry. Co., 107 Wis. 493. This view is adopted by the dissenting judges in the principal case, who point out that the road only differs from a steam commercial railroad in its motive power. User, however, and not motive power, is the proper test. William v. City Electric St. Ry. Co., 41 Fed. 556. It is difficult to reconcile the decision with the authorities, but there has been a gradual development in this branch of the law in recent years recognizing the modern tendency to permit a more extensive use of highways than was originally intended, so that the case seems merely a further step in advance.

ILLEGAL CONTRACTS-CONTRACTS AGAINST PUBLIC POLICY - PROMISE TO MARRY AFTER DEATH OF EXISTING WIFE. - The defendant promised to marry the plaintiff after the death of his wife, the plaintiff knowing at the time that he then had a wife. Held, that the contract is not void as against public policy. Wilson v. Carnley, 23 T. L. R. 757 (Eng., K. B. Div., July 31, 1907).

If a plaintiff was honestly unaware of defendant's existing marriage, that marriage is, of course, no defense to an action for breach of promise. Wild v. Harris, 7 C. B. 999; Kelley v. Riley, 106 Mass. 339. But where the plaintiff was not innocent, American courts have held that contracts looking to future marriage are immoral and give no legal rights. Paddock v. Robinson, 63 Ill. 99; Noice v. Brown, 38 N. J. L. 228. A dictum by Baron Pollock was the basis for these decisions. See Millward v. Littlewood, 5 Exch. 775. Contin gencies are possible where an engagement before the death of a first wife might be upheld, for example, if made at her request, or after her insanity; but an arrangement of the kind made in the present case manifestly tends to immorality, and American law properly denotes these contracts as contra bonos mores. The contrary conclusion drawn by the English court appears to be due to the modern sentiment that it is impolitic to extend the classes of contracts which courts may refuse to enforce merely because the transactions they contemplate seem opposed to the public welfare.

INNKEEPERS-DUTY TO GUESTS ·LIABILITY OF INNKEEPER FOR INSULT TO GUEST.-The plaintiff was a guest at the defendant's hotel. At night one of the employees of the hotel, by order of the defendant, forcibly entered the plaintiff's room, used insulting language, and threatened to turn her out as a disreputable woman. Held, that the defendant is not liable. De Wolf v. Ford, 104 N. Y. Supp. 876 (App. Div.).

Following the analogy of the liability of a carrier to its passengers for the torts of its servants on the basis of an implied contract to afford protection, an innkeeper has been held liable to his guest for the unauthorized tort of his servant. Clancy v. Barker, 71 Neb. 83; see 17 HARV. L. REV. 575. This case, however, presents the additional feature that no tort was committed, since only the plaintiff's personal feelings were injured. Such injury is not in general an actionable wrong. Reed v. Maley, 115 Ky. 816. But the implied contract of the carrier is extended so that it is liable to its passengers for mental suffering caused by the insults of its servants. Gillespie v. Brooklyn Heights Ry. Co., 178 N. Y. 347. To follow the analogy of the carrier logically, the present defendant should be held liable, even though the act of his employee did not constitute a tort. And the analogy seems sufficiently close to sustain this extension. Both the carrier and the innkeeper are engaged in a public service, and their liabilities are based upon the same considerations of public policy.

INTERSTATE COMMERCE - CONTROL BY STATES-GARNISHMENT OF A CARRIER ENGAGED IN AN INTERSTATE SHIPMENT. - The plaintiff garnisheed a carrier in Georgia on account of the possession of a car of the defendant which was being used in shipping freight from another state into Georgia, and was intrusted to the garnishee under the usual agreement for forwarding the car and returning it on another shipment. Semble, that the garnishment would not be an unconstitutional interference with interstate commerce. Southern, etc., Co. v. Northern Pac. Ry. Co., 127 Ga. 626.

Upon this point the case is the first to disagree with a number of contrary holdings criticized in 20 HARV. L. Rev. 319.

INTERSTATE Commerce - INTERSTATE Commerce COMMISSION - RECOVERY OF UNREASONABLE RATE BY Shipper. The Interstate Commerce Commission declared a rate unreasonable and ordered a new rate. The plaintiff, a shipper, applied for restitution of the difference between the rate charged and that established by the Commission. Held, that he can recover. Southern Ry. Co. v. Tift, 206 U. S. 428.

It has been held that a shipper has no remedy in the courts until the Interstate Commerce Commission has passed on the reasonableness of a rate. Texas, etc., Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. See 20 HARV. L. REV. 576. But this is only a matter of procedure, not affecting the shipper's ultimate right not to be overcharged, if when a rate is declared unreasonable he can recover the excess previously paid. The court also, by dicta, limits the application of this rule of procedure to actions at law for damages, declaring that the Interstate Commerce Act leaves unimpaired the jurisdiction of a court of equity to restrain the enforcement of unreasonable rates.

INTERSTATE Commerce - WHAT CONStitutes Interstate ComMERCE COMMERCE WITH NAVY YARDS UNDER EXCLUSIVE FEDERAL JURISDICTION. — A Virginia statute imposed a penalty on telegraph companies for failure to deliver messages. The defendant company failed to deliver a message sent from a point within the state to the plaintiff in the Norfolk Navy Yard, which was under the exclusive jurisdiction of the federal government. Held, that the Commerce Clause of the Constitution gives Congress no authority over this message such as to render the state statute inapplicable. Western Union Telegraph Company v. Chiles, 57 S. E. 587 (Va.).

The Commerce Clause, in regard to commerce "among the states," has been regarded as giving Congress exclusive jurisdiction only over commerce which concerns more than one state. See Gibbons v. Ogden, 9 Wheat. (U.S.) 1. Yet it has been held that an act of the Legislative Assembly of the District of Columbia imposing a license on drummers is indistinguishable, as regards the Commerce Clause, from a similar state act, and therefore is void so far as applied to those soliciting for individuals outside the District. Stoutenburgh v. Hennick, 129 U. S. 141. The authority of Congress over places purchased by the consent of the legislature of a state for dockyards, etc., is like its author

ity over the District of Columbia. U. S. v. Cornell, 2 Mason (U. S. C. C.) 60. Whether there is a difference, as regards commerce, between the District and land under the exclusive control of the federal government used for dockyards, etc., has not been considered. On principle there is no ground for such a distinction. The case follows a dissenting opinion of Miller, J., holding that commerce" among the states" is commerce between the citizens of one state and those of another state. See Stoutenburgh v. Hennick, supra.

LANDLORD AND TENANT-CONDITIONS AND COVENANTS IN LEASES COVENANT AGAINST ASSIGNMENT. - A lease contained a covenant against assignment by the lessee or others having his estate in the premises. The lessee devised his interest to his executors upon certain trusts, and they transferred the estate to themselves as trustees. Held, that there is no breach of the covenant. Squire v. Learned, 81 N. E. 880 (Mass.).

This

Two views are possible as to the scope of a covenant against assignment. One is that only an alienation inter vivos by the lessee is forbidden; the other, that the covenant also forbids testamentary disposition. An early case took the distinction that, while in general a devise is a breach, it is permitted if the devisee be named executor. Windsor v. Burry, Dyer 45 b, note. seems erroneous, since the executor as devisee is as distinct as any stranger from the executor as such. The only justification for the present decision must lie in the proposition that a devise of the leasehold estate is not a breach of a covenant not to assign. For v. Swann, Styles 482; contra, Barry v. Stanton, Cro. Eliz. 330. It is no breach for the lessee's administrator to transfer the estate to the next of kin, or to sell it as assets. Seers v. Hind, 1 Ves. Jr. 294. Hence it would seem that a true construction of the covenant should likewise allow a testamentary disposition by the lessee. The object of the covenant is to keep the term out of objectionable hands; and this purpose is as likely to be defeated if the lessee dies intestate as if he directs to whom it shall pass at his death.

LEGACIES AND DEVISES - Abatement - LEGACY IN SATISFACTION OF A DEBT. The testator bequeathed £3,000 to the trustees of his daughter's marriage settlement in satisfaction of his covenant to pay them £1,000. Held, that the legacy abated equally with other general legacies. In re Wedmore, [1907] 2 Ch. 277.

Priority of one general legacy over another is not allowed without clear proof that such was the testator's intention. Appeal of the Trustees, 97 Pa. St. 187. But a legacy sustained by valuable consideration is favored on the principle that the legatee is a purchaser for value. Blower v. Morret, 2 Ves. 420; Reynolds v. Reynolds, 27 R. I. 520. This seems correct when a bequest is made in satisfaction of an unliquidated claim against the testator's estate, for any excess of the legacy over the actual value of the claim is compensation to the creditor for waiving his chance of recovering a greater sum by litigation. See Borden v. Jenks, 140 Mass. 562, 564. This consideration does not apply, however, where the legatee's claim was already liquidated, since the creditor then runs no risk of loss by accepting the legacy instead of suing for his debt. There is then no basis for a conclusion that the legacy, at least any sum in excess of the testator's liability, was intended to be paid before bequests to volunteers, and the principal case seems correct. If, however, the legacy abates below the value of his claim, the legatee may waive it and recover as a creditor. See Collins v. Cloyd, 29 S. W. 735 (Ky.).

LIBEL AND SLANDER - ACTS AND WORDS ACTIONABLE SUIT BY CORPORATION. - The defendants published an article which stated that an officer of the plaintiff corporation was an ex-criminal and "a tout sleek enough in his methods to have corralled bankers and brokers of unimpeachable legitimacy as clients for the New York Bureau of Information." Held, that the article is a libel per se for which the plaintiff may recover. New York Bureau of Information v. Ridgway-Thayer Company, 104 N. Y. Supp. 202 (App. Div.).