decided that an agreement between two parallel and competing railroads engaged in interstate commerce, whereby the control of both was given to a holding company organized for the purpose, thus destroying all motive for competition, is prohibited by the act.

Of the decisions enumerated above, two especially may be compared with the present-the Knight and Hopkins cases. While Justice Holmes, who wrote the opinion in the instant case, remarked that the line of demarcation between this and the Knight Case was finely drawn, there are two distinctions worthy of mention: (1) In the Knight Case the subject matter of the combination was manufacture. It is true that monopoly of commerce among the states in the article manufactured might follow from the agreement, but it was not a necessary consequence. In the present case the subject matter was sales and the primary purpose of the combination was to restrain and monopolize commerce among the states in respect to such sales. (2) In the the Knight Case combination was effected by the acquisition of property rights and the consequent fusion of competing properties; whereas here the agreement did not accomplish any acquisition by any of the defendants of property rights in the business of the others. In this respect therefore the instant case may also be distinguished from the Northern Securities decision. The Knight Case was in effect modified by the Addyston Pipe decision; and in view of the Northern Securities Case, which involved an indirect restraint only, it would seem perhaps that the Knight Case would receive a different construction were it now to come before the court for the first time. While the dissentient opinions in the Northern Securities Case, in connection with Justice Brewer's statement, indicate that the court no longer adheres to the dictum in the Freight Association Case that the act prohibits all agreements in restaint of interstate commerce, whether reasonable or unreasonablethus making the criterion of reasonableness the same as at common law-this position cannot be said to decrease the efficacy of the act, inasmuch as no combination has been declared illegal under its provisions which could not have been reached by an application of common law principles.

Again, the agreements between the defendants did not relate to a subject collateral or incidental to commerce or to anything that may be considered an instrumentality of commerce. They were made by persons engaged themselves in interstate commerce and in respect to the conduct of commerce itself. Therefore the case may be differentiated from the Hopkins Case, when the court deemed those in the combination to be engaged, not in commerce, but in furnishing merely a local aid and facility

to commerce.

It is patent that there is a marked tendency on the part of the Supreme Court to broaden the significance of the term "interstate commerce" and to enlarge the scope of the Sherman Act, even at the expense of invading the domain of States'

Rights; this tendency being noticeable in the Addyston Pipe Case and especially so in the Northern Securities Case. In view, then, of the present construction of the Sherman Act and the increasing proof that the common law, even in the absence of statutory enactment, is sufficient, if manfully invoked, to protect the rights of individuals, may not those who favor local autonomy well ask that pause be given to additional repressive legislation in so far as it makes the Federal Government the depository of powers formerly residing in the states?

THE RIGHTS AND POWERS OF TELEGRAPH COMPANIES UNDER THE ACT OF 1866.

In the case of W. U. Tel. Co. v. Penn. R. Co., 25 Sup. Ct. 133, recently decided by the United States Supreme Court, a definite, and probably final, interpretation has been put upon the act of Congress of 1866 relating to telegraph companies. Questions as to the rights and powers of telegraph companies have arisen a number of times under the following portion of the act: "That any telegraph company now organized under the laws of any State in this Union, shall have the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under or across the navigable streams or waters of the United States; provided, it does not interfere with ordinary travel on such military or post road. 14 Stat. at L. 221. By other acts, Congress declared all railroads post roads. Stat. at L. 5-271, 10-255, 17-283. Under these acts the telegraph company claimed the right to maintain its lines upon the right of way of the Pennsylvania Railroad Co. after the contract under which it came upon the company's property had expired. It maintained that the act gave a power equal to that of eminent domain, under the exercise of which it might remain upon the railroad's property as long as it did not interfere with ordinary travel. The railroad successfully contended that the act was merely declaratory of the interstate nature of the telegraph business, and intended only to prevent state interference.

In Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1, the Court decided adversely to the existence of the right of eminent domain under the act. This decision was reaffirmed in W. U. Tel. Co. v. Ann Arbor R. Co., 178 U. S. 239. In the Pensacola case the Court stated the fundamental idea and sole purpose of the statute to be the prohibiting of all state monopolies in commercial intercourse by telegraph, adding that the act gives no foreign corporation the right to enter upon private property without the consent of the owner; that whenever the consent of the owner is obtained, no state legislature shall prevent the occupation of post roads for telegraph purposes, by such corporations as are willing to avail themselves of its privileges.

Under the act there is no provision for condemnation proceedings nor for compensations. As stated in the Pensacola case, supra, "If private property is required it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized." Tel. Co. v. Cleveland L. R. Co., 94 Fed. 234. In Sweet v. Rechel, 159 U. S. 399, it is said that it is a condition precedent to the exercise of the power of eminent domain that the statute make provision for reasonable compensation to the owner. Cherokee Nation v. So. Kan. R. Co., 135 U. S. 641; Kohl v. U. S., 91 U. S. 367.

Postal Tel. Co. v. Ore. S. L. Co., 104 Fed. 623, and P. Tel. Co. v. R. Co., 114 Fed. 787. appear to support the telegraph company's contention, but they were so influenced by state statutes that they have but little weight. And in P. Tel. Co. v. So. R. Co., 89 Fed. 190, it was said that while the Act of 1866 gave the right to build on all post roads, yet the laws of North Carolina governed the method of exercising that right. However, in St. P. R. Co. v. Tel. Co.., 118 Fed. 497, the Court, where the telegraph company came upon the right of way with the consent of the owners, declined to compel it to remove, especially since it appeared that no express agreement for removal had been made when the lines were erected. It would also seem that Osborn Co. v. Mo. P. R. Co., 147 U. S. 248, and Elroy v. Kan. City, 21 Fed. 257, support the proposition that where a court has general jurisdiction it may find a means of enforcing the right of eminent domain even though no provision has been made for compensation.

In the dissenting opinion of Justice Harlan, in W. U. Tel. Co. v. Penn. R. Co., supra, much force is placed upon Kohl v. U. S., supra, but in that case the power to condemn was given. It is also maintained that the Pensacola and Ann Arbor cases are mere dicta and not binding upon the courts. It must be admitted that, though the power granted by the Act of 1866 was discussed and passed upon, it was not directly in issue. Justice Brewer expressed the opinion that Justice Harlan's view was correct in theory but considered the Pensacola and Ann Arbor cases binding.

RECENT CASES.

ACCORD AND SATISFACTIONN-WHAT CONSTITUTES.-HARBY V. HEUES, 90 N. Y. SUPP. 461.-Held, that the acceptance by the creditor of a check from the debtor, written as "in full payment," with immediate notice to the debtor that action would be brought for the balance claimed, is not an accord and satisfaction.

The general rule is that there can be no accord and satisfaction of a debt by a simple payment of a smaller sum than the amount actually due or owing, unless there be a release under seal, Cumper v. Wane, 1 Strange 426; or a new consideration. U. S. v. Bostwick, 94 U. S. 53. The rule and reason are purely technical, and there is constant effort to escape from its absurdity and injustice. Harper v. Graham, 20 Ohio 105; Brooks v. White, 2 Met. 285; and it does not hold in Pennsylvania; Milliken v. Brown, 1 Rawle 391. A receipt "in full satisfaction and discharge" is not conclusive evidence of accord and satisfaction, McCullen v. Hood, 14 N. C. 219; unless the debt be unliquidated and the amount uncertain, Baird v. United States, 96 U. S. 430; and payment was in fact made and accepted in satisfaction. Fitch v. Sutton, 5 East 230. If there be a controversy between the parties as to the amount due, and the debtor tender the amount which he claims to be due, but upon condition that it shall be accepted in discharge, and it be accepted, then there is accord and satisfaction by conclusion of law, on the principle that one accepting a conditional tender assents to the condition. Preston v. Grant, 34 Vt. 201; Bull v. Bull, 43 Conn. 455; Reed v. Boardman, 20 Pick. 441.

CARRIERS OF PASSENGERS-SeaworthineSS OF VESSEL-LIABILITY FOR INJURIES. THE OREGON, 133 FED. 609.-Held, that there is no implied warranty, on the part of a carrier of passengers by sea, of the seaworthiness of the vessel. Ross, J., dissenting.

Carriers of passengers by sea are held to the same high degree of care as those who carry by land. Hall v. Steamboat Co., 13 Conn. 319; Shear. & Red., Neg., 495. A carrier by land need not furnish a "roadworthy" vehicle. Stokes v. Ry. Co., 2 Fost. & F. 691; Meier v. R. Co., 64 Pa. St. 225. Nor need the carrier by sea furnish a seaworthy ship. Carroll v. R. Co., 58 N.Y. 126; Whart., Neg., Sec. 638. But an accident through a defect is prima facie evidence of negligence. Dawson v. R. Co., 5 Law Times, N. S., 682. U. S. statutes make certain requirements of the owners of passenger vessels. 10 Stat. at L. 61; 16 Stat. at L. 440. But these do not abrogate the common law rules as to liability. Caldwell v. Steamboat Co., 47 N. Y. 282.

CONSTITUTIONAL LAW-INSURANCE CORPORATIONS-REVOCATION OF AUTHORITY.-Prewitt v. SECURITY M. L. Ins. Co., 83 S. W. 611; 84 S. W. 527 (Ky.).— Where a state statute provides that if any foreign insurance company, without consent of the other party to a suit brought by or against it in any state court, shall remove the suit to the federal court, the insurance commissioner

shall forthwith revoke its authority to do business in the state, held, that such statute is not in conflict with the U. S. Constitution, it being a reasonable regulation for the protection of the citizens of the state. Burnam, C. J., and Barker, J., dissenting.

Bank

A state can exclude a foreign corporation entirely from its limits. of Augusta v. Earle, 13 Pet. 519. A fortiori, it would seem that such absolute power would necessarily include the power to impose any conditions as terms of entrance, no matter how absurd, or oppressive. But such terms, conditions, or restrictions, must not be repugnant to the Constitution or the laws of the United States, Runyan v. Costar, 14 Pet. 122; Del. R.R. Tax Case, 18 Wall. 206; Cable v. Ins. Co. 191 U. S. 288; and a state statute imposing on a foreign corporation, as a condition on which it may do business within the state, that it file an agreement not to remove suits from state courts to courts of the United States, as well as such agreement, is void. Nute v. Ins. Co., 6 Gray 174; So. Pac. Co. v. Denton, 146 U. S. 202; Tex. Land Co. v. Worsham, 76 Tex. 556. Such right of removal may of course be waived, but it may not be bartered away in advance. But when once within a state, the foreign corporation is there on sufferance only; hence, though the statute forbidding removal of causes, and a like agreement in advance, may be void, if the corporation will not abide by them, the state may recall its license and expel the corporation; and its reason for so doing will not be inquired into. Beale, For. Corp., § 122; Doyle v. Ins. Co., 94 U. S. 535; Cable v. Ins. Co., supra.

CONSTITUTIONAL

LAW-INTERSTATE COMMERCE-ORIGINAL PACKAGE.— COOK V. MARSHALL COUNTY, 25 SUP. CT. 233.-Held, that cigarettes shipped in small packages, ten in a package, although shipped separately and not confined in any large receptacle, are not to be considered as in the original package so as to be exempt from a state tax. Fuller, C. J., Brewer, and Peckham, JJ., dissenting.

Up to the decision of Austin v. Tennessee, 79 U. S. 343, it was supposed that any package in which an article was shipped into a state was the original package. Brown v. Maryland, 12 Wheat. 419. In Leisy v. Hardin, 135 U. S. 100, kegs and cases of beer were original packages, and likewise ten pound packages of oleomargarine in Schollenberger v. Pennsylvania, 171 U. S. I. In Austin v. Tennessee, supra, however, the test was held to be the bona fide intention of the shipper, as to whether the packages were gotten up merely for the purpose of evading the law. They are original packages only when they are such as are ordinarily used for the purpose of shipping that article. In that case, as in the present one, there was a strong dissenting opinion based on the ground that the original packages are what the shipper makes them for his own purposes even though they may be different from those in ordinary use. It is conceived that under the present decision the law must change with the change in the ordinary method of transportation.

CONTRACTS-EXECUTORY-REFUSAL TO PERFORM.-Swiger v. Hayman, 48 S. E. 839 (W. VA.).—Held, that a mere declaration, by one of the parties to an executory contract, of an intention not to perform, which is retracted before any declaration has been made or act done by the other party in respect to such renunciation, does not constitute a breach of the contract.

Words or conduct relied on as a breach of the contract by anticipation must amount to a total refusal to perform, acted upon and adopted by the