atre of war, "it is certain," in the words of Professor Holland, in his recent letter to the Times, whose views have been confirmed and enforced by Professor Woolsey of Yale, and Dr. Lawrence, "that no international usage sanctions the employment by one belligerent against the other of mines or other secret contrivances which would without notice render the navigation of the high seas dangerous" to neutrals.

The circumstance that there is no precedent which governs the case of mines adrift beyond the territorial limit is, of course, attributable to the very recent development of these terrible engines of destructive warfare; that their employment on the high seas, to the peril of neutral vessels and the infraction of the common right of mankind to free navigation in accordance with the rule of modern international law, subject only to well-defined modifications, constitutes a grave offence against international morality cannot be doubted. The trend of the development of international jurisprudence for the promotion of the safety of non-combatants may be used to gauge the gravity of the conduct of a belligerent Power in adopting a course of action calculated to endanger life and property in neutral shipping. To take a single illustration of the care for the safety of non-combatants, which applies more strongly in the case of neutrals, by which international morality in recent times is so nobly distinguished: All the nations represented at The Hague Conference, in view of the newness of the practice and danger of injury to other than combatants, agreed "to prohibit for a term of five years the launching of projectiles and explosives from balloons or by other new methods of a similar nature": (Hill's Peace Conference, p. 461). The argument by way of analogy against the floating of mines on the high seas, where they are liable to endanger neutral ships, is unanswerable.

CONCERNING the "Assumption of Risk Growing out of the Non-Performance of a

Master's Statutory Duty," the Yale Law Journal for June, says:

That the common law places upon the master certain duties for the protection of his servant is fundamental; that these duties cannot be delegated so as to relieve the master from liability, although deducible from, is equally elemental with the first proposi tion. One of these common law duties is the furnishing of reasonably safe implements with which to work. The courts have, however, engrafted upon this principle a qualification, in that, although the master has not performed his full duty, thereby creating an additional risk which was both obvious and ordinary, yet the servant by continuing his employment with knowledge of such delict, was conclusively presumed to have accepted the increased hazard arising therefrom. That is the doctrine of "assumption of risk." If an injury accrued to him in such a contingency the servant was deemed to have waived the master's nonperformance of duty and no recovery was possible.

Do the same rules of law apply if the master is under a statutory duty to provide protection for his servant? The United States Circuit Court of Appeals has come to the conclusion recently that the doctrine of "assumption of risk" is equally applicable, whether the duty be statutory or of the common law. A statute of Missouri designed for the protection of employés provided that all exposed gearings, etc., should be guarded. An employer complied with the statute, but for a period of six weeks prior to an injury to one of his employés he had allowed some of the guards to fall into disuse so that a pair of rapidly revolving cogwheels were left exposed. A servant, a girl of 20 years of age, was required to work at the machine containing these wheels, about ten or fifteen minutes each day, and in consequence of their unguarded condition was injured. The Circuit Court of Appeals holds that the servant is entitled to no recovery, since by continuing in her employment she had assumed the risk arising from the failure of the mas

ter to comply with his statutory duty. In a strong dissenting opinion Judge Thayer takes an opposite view. St. Louis Cordage Co. v. Miller, 126 F. 495.

As to whether acquiescence by the servant under the above conditions will be regarded in law as a waiver of compliance by the master of a statutory duty, the courts differ. That there is no waiver and that the servant is entitled to recovery for an injury arising from the breach seems to be the rule in England, Illinois, Indiana, Missouri, Wisconsin and Tennessee. Some of these courts even hold that the servant's contributory negligence will not affect his recovery. On the other hand, the courts of Massachusetts, New York, Michigan, Alabama and Colorado agree that the risk arising from the breach of a statutory duty can be assumed as readily as that resulting from a common law obligation. .

It is submitted, that when a statutory duty is imposed on an employer for the protection of his servants, the better rule is that the servant does not waive compliance by the master, and assume the resulting risk by continuing in the master's service. The proposition is submitted on the following grounds: First, that the master is placed under a positive statutory duty which the servant has a right to presume will be performed. Quackenbush v. Wisconsin Ry.; Railway Co. v. Archibald, 170 U. S. 665. Any disregard of this duty is not a mere omission, but a tort, as it is a direct violation of a positive law. The master is, therefore, guilty of a wrong before any injury accrues to his servant. It is contrary to principle to allow the master to take advantage of his own wrong when the injury does accrue, because there may have been a tacit acquiescence in the master's wrong on the part of the servant. The master ought not to be allowed to rely upon his own neglect of duty as a defense against injuries arising from such neglect, especially when the more manifest the neglect, the more certain the defense. Second, any other construction would be against public policy in that it would in effect nullify the statute. Durant v.

Lexington, 97 Mo. 62. The primary object of the statute is to secure proper protection to employés. If we adopt the doctrine of waiver, "the statute would furnish the employé little protection. The mere refusal of the owner to furnish the safeguards provided by the statute would then be sufficient to exonerate him from liability if the employé continued in his employment and sustained injury." Hochstetter v. Mosley, 8 Ind. App. 442.

IN an article entitled "Corporation of Two States," in the Columbia Law Review for June, Professor Joseph H. Beale, Jr., of the Harvard Law School, discusses several interesting questions. For example:

When the consolidation of corporations of two States takes place not by means of a charter granted by a single State, but by permission given by both States, the position of the corporation is rather difficult to determine. In neither State, it is clear, is it a foreign corporation. Since two States, as we have seen, cannot create a single corporation, the consolidated body must at least constitute as many corporations as there are States concerned, each corporation being subject to the laws (as for instance those concerning taxation) of its own State, and having the powers of the constituent corporation of that State. And so where one of the States forbade a mortgage, such mortgage given by the consolidated corporation was void as to the property in that State.

Are these separate corporations merely the original corporations, which by the consolidation have been permitted to form an extra-legal business combination, or is there in addition a new corporation, or rather a set of new corporations, each succeeding to the business of an old corporation without effecting a dissolution of it, or entirely superseding it? This question is not easy to anIt has been urged by high authority that the permission to consolidate, not being accompanied by a new charter from any one State, does not create a corporation; that the consolidated body formed in accordance with the permission of the States concerned

swer.

is at most a corporation de facto, or perhaps only a business union of the several companies under a common name, the old corporations still exercising their several powers in their respective States in the name of the consolidation. It is clear that the constituent corporations do not necessarily or generally cease to exist. But it is certain that no corporation de facto can be recognized if there can be no corporation de jure, and if they do cease to exist it must be because each State has so provided, which is not a natural interpretation, because neither State, in authorizing the consolidation, "can have intended to abandon all jurisdiction over its own corporation created by itself." But though the old corporations usually continue in existence, a new association of some sort is undoubtedly formed, a community of stock and interest between the companies; there is almost invariably a new set of books opened, new stock issued, new stockholders and new officers provided for the consolidated company. This, it would seem, is sufficient to create a new commercial entity, and since it results from permission given by law the new entity constitutes a legal person. But this new person is not created by the law of any one State. Concurrent legislation of all the States was essential to the completion of the consolidation. The new corporation is no more a corporation of one State than of the other, and as it cannot be created by the States jointly, it must be the anomalous association already considered,a separate corporate body in each State, all however being as it were federated together, and in many respects capable of acting as

one.

We must conclude then that when a number of corporations, created by different States, are allowed to consolidate by the States that created them, the constituent corporations may or may not be merged in the consolidated body and so lose their corporate existence, this depending in each case upon the will of the State of charter; but that by the consolidation new corporations are formed, equal in number to the number of enabling States, and each empowered to act

in connection with the others. The consolidated corporation therefore does not differ in status from the corporation rechartered in another State than that which first created it.

A

One more complication may ensue. corporation formed in one State may be rechartered in a second State, and then consolidated with a corporation of a third State: what is the effect of the consolidation upon the rechartered corporation of the second State? Is it federated with the original corporation still? And what if the original corporation is dissolved by merger in the consolidated corporation?

This question was raised by the case of Louisville Trust Company v. Louisville, New Albany and Chicago Railway. An Indiana corporation had been rechartered in Kentucky; and the Indiana corporation was then in accordance with legislation of both States concerned consolidated with an Illinois corporation. It was argued that since. the consolidated company succeeded to all the property of the original company, and since the Kentucky company had no relation with the consolidated company, it ceased thereafter to exercise its franchises. But Taft, Circuit Judge, said:

"We do not perceive that this consolidation creates any difficulty. The Kentucky corporation, having been once established, could not die except by its own act or that of the State which gave it being. Everything it had acquired in the way of property remained in it after the consolidation of its constituent with the Illinois corporation. It was not and could not be ousted of its franchises thereby."...

From this opinion it would seem that upon the consolidation of the Indiana corporation with the Illinois corporation the rechartered corporation would ipso facto become federated with the consolidated company; a result which could be prevented only by the affirmative action of the Kentucky Legislature, thus exercising its power over its own corporation. .

One may, perhaps, on the authorities and the reason of the thing, reach the following

conclusions. An agent for the consolidated corporation may act for and bind all the members; and this would undoubtedly be true of an act done outside all the incorporating States. In one of the incorporating States, however, one should hold in strictness that it is the local corporation which is acting. But an act done anywhere binding one of the corporations will give a cause of action in either State of incorporation against the corporation in that State: whether because the corporations are to be taken as partners, or, more probably, because the State in incorporating it subjected it to such a liability;-created it to be dealt with as one corporation and not two, in the language of Judge Doe.

"FREEDOM of Contract," says Professor Clarence D. Ashley in the Columbia Law Review for June, "has been the fetish of our modern law for years."

"Every man is the master of the contract he may choose to make: and it is of the highest importance that every contract should be construed according to the intention of the contracting parties." Probably this statement of Chief Justice Erle would strike any one as both sound and commonplace. Nevertheless it is believed that the statement does not accurately express the law, and that it may be as well that it does not. . . .

The subject of contract is still growing. Many of its principles are undeveloped and crude. This gradual growth is changing preconceived views, and the student or writer of this subject must grow with it or be left hopelessly behind. To most lawyers it seems axiomatic to say that in our system of law every simple promise must be supported by a consideration. Probably that is so, but how far has that advanced us? What is this so-called consideration? If Dean Ames is right in his able and interesting articles it would seem to be a steadily decreasing something which has about reached the vanishing point. So also, we may inquire what we mean by this universal test of mutual assent. This may be well enough expressed

thus: "The first essential of a contract is mutual assent, and mutual assent means the consent of the parties to the terms of the contract, intent by both parties to enter into the proposed arrangement."

There seems no reason to change this general view, but nevertheless if too strictly and logically followed, it leads to situations which are intolerable and which the courts never have and never will strictly enforce. It is well enough for us to classify contracts as those obligations having their initiative in the intent and agreement of the parties, but when that preliminary has once taken place, there seems to be no essential reason why the courts cannot modify the obligation which thus arises, and why the mastery of a man over the contract he chooses to make should not be subject to rules and regulations applied by the courts and directly limiting the mastery of the parties. It is true that when a man bases his promise to pay upon the judgment of an eminent architect it is a somewhat strong proposition to suggest that he shall not have such safeguard, but shall be turned over to the judgment of twelve inexperienced men. To say that this is only done when the architect unjustly or fraudulently withholds the certificate is only saying in another form that the entire question is to be settled by the jury. Courts should disregard the expressed intention of the parties only in extreme cases and with great caution, but that it is sometimes beneficial to do so seems certain.

WE regret that lack of space this month makes it necessary to postpone, until our August issue, quoting from Professor James B. Scott's admirable article on "International Law in Legal Education," in the Columbia Law Review for June, from Mr. Chief Justice Mitchell's learned address on "Hints upon Practice in Appeals," and Henry Wolf Biklé's able "Review of the Northern Securities Decision," in the American Law Register for June, and the several interesting articles and correspondence in the current number of the American Law Review.

ANTI-TRUST ACT. (ACTION BY CITY FOR INJURY
TO BUSINESS.)

UNITED STATES CIRCUIT COURT OF
APPEALS, SIXTH CIRCUIT.

The case of City of Atlanta v. Chattanooga Foundry and Pipe Works, 127 Federal Reporter 23, was an action brought by the city. to recover damages incurred in its business by reason of a combination of pipe companies formed in violation of the Anti-Trust Act. The city was maintaining a system of waterworks, and furnished water to consumers. charging for the same in exactly the same way as would a private corporation. evidence tended to show that the object of the combination was to prevent any other producer from bidding for plaintiff's business, and that practices were adopted intended to compel it to deal exclusively with the Alabama member of the association, and to pay a price settled by the combination in advance of any bid. For this privilege the Alabama corporation agreed to pay a large sum into the pool treasury, called a "bonus," which was to be divided in agreed proportions. An appearance of competition was to be maintained by bids put in by the others, such bids being higher in each instance than that made by the company to whom the contract had been assigned. The court holds that a municipal corporation engaged in operating gas, water or lighting plants, or street railroads, from which a revenue is derived, is in relation to these matters a business corporation, and can maintain a suit for injury to its business under the Anti-Trust Law. It is held to be no defense that no purchase was made by the city from either of the Tennessee corporations made defendant. Their guilt is held to be as great as that of the corporation from whom the purchase was made, for the reason that each is responsible

for the torts committed by the others in the course of carrying out the illegal combination. The city is held to be entitled to recover the difference between the price paid for the pipe and the reasonable price which would have been paid under natural competitive conditions, and it is said that such recovery can be had for the injury to the business, whether such business is interstate or not, provided the transaction by which the purchase was made was interstate. The court further holds that an action brought under Section 7 of the Anti-Trust Law, which gives a recovery of three-fold damages, is not an action for a penalty or forfeiture, which, under the statute, must be brought within five years, but is a civil remedy, and is governed as to limitation by the statutes of the State in which it is brought. Upon this point the court refers specifically to the many authorities collected in the cases of Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, and Brady v. Daly, 175 U. S. 148, 20 Sup. Ct. 62, and also to the opinion of Judge Clark in the court below, reported in 101 Fed. 900. The court also governs its rulings by the opinion of the Supreme Court in the case of Addison Pipe Co. v. United States, 175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136.

ASSAULT. (ATTEMPT TO KISS-CONSENT of ProseCUTRIX-INTENT TO INJURE-EXCESSIVE PENALTIES.)

TEXAS COURT OF CRIMINAL APPEALS. In Chambless v. State, 79 Southwestern Reporter 577, it is held that where a man who reasonably believes that a woman will allow him to kiss her, makes the attempt to do so without intending to accomplish the act by force, he is not guilty of assault. To constitute an assault there must be an intent to injure, and where as in the case of a kiss.