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gives a right to a recovery where none existed before. Furthermore, no distinction should be made between the effect of a limitation to a re-defined and to a newly created right. A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662, 665. Contra, Finnell v. So. Kan. Ry. Co., 33 Fed. 427; and see Williams v. St. Louis, etc. Ry. Co., 123 Mo. 573, 581, 27 S. W. 387, 389. The substantive rights are determined by the law of the locus of the transaction, which can as well cut down an existing right as limit a new one. So the problem is merely one of construing whether the limitation is remedial or substantive. In the Employers' Liability Act there is nothing to rebut the presumption of the usual import of the juxtaposition of right and limitation.

CONSTITUTIONAL LAW - PERSONAL RIGHT-LIBERTY TO CONTRACT STATUTE RESTRICTING EMPLOYMENT OF ALIENS. A New York statute provided that only citizens of the United States should be employed in the construction of public works. The Public Service Commission made several contracts with the plaintiffs for the construction of the new subway system of New York City, with a provision that they should be void if the statutory restriction was not complied with. The plaintiffs now bring a bill in equity to restrain the commission from declaring the contracts void in accordance with this provision, on the ground that the statute is unconstitutional. Held, that the bill should be dismissed. Heim v. McCall, 239 U. S. 175.

For a discussion of the questions involved, and a criticism of the opposite result reached by the New York Appellate Division, see 28 HARV. L. REV. 496, 628.

CONTRACTS - DEFENSES:

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INFANCY RATIFICATION WITHOUT KNOWLEDGE THAT CONTRACT IS VOIDABLE. The plaintiff, while an infant, bought and paid for the defendant's moving-picture theatre. Soon after becoming of age he tried to sell the theatre, not knowing of his power to avoid the contract. Later he tried to rescind the contract and now sues to recover the purchase price. Held, that he may recover. Manning v. Gannon, 43 Wash. L. Rep. (D. C.) 759.

By a marriage settlement made while an infant, the plaintiff settled in trust certain reversions expectant on her mother's death. For six years after becoming of age, she neither affirmed nor repudiated the contract expressly. Held, that she may not now repudiate, though she did not know hitherto that her contract was voidable. Carnell v. Harrison, 50 L. J., 569.

There is some rather ill-considered authority holding that ratification depends on knowledge that the contract is voidable. Hinely v. Margaritz, 3 Pa. St. 428. See Baker v. Kennett, 54 Mo. 82, 92; Hatch v. Hatch, 60 Vt. 160, 171, 13 Atl. 791, 797; Harmer v. Killing, 5 Esp. 102, 103. The weight of authority, however, is in accord with the present English decision on the ground that one is presumed to know the law. Morse v. Wheeler, 4 Allen (Mass.) 570; Anderson v. Soward, 40 Oh. St. 325; Bestor v. Hickey, 71 Conn. 181, 41 Atl. 555. See WHARTON, CONTRACTS, § 57. It is submitted that this result is also more in accord with legal principles. The statement in these authorities merely expresses the rule pervading the entire law of contracts that, given an intention to do the acts in question, a knowledge of the legal effects of those acts is immaterial. See WILLISTON'S WALD'S POLLOCK, CONTRACTS, 3 ed., 450. And the exception to this rule asserted by the American case can hardly be supported on grounds of public policy, for the act which created the right to enforce the contract against the former infant was done by an adult who no longer can claim special privileges. See Bestor v. Hickey, 71 Conn. 181, 186, 41 Atl. 555, 556. This reasoning is supported by analogy. The so-called waiver of the defense of the Statute of Limitations requires no knowledge of its existence. Langston v. Aderhold, 60 Ga. 376. And an indorser of a note, though not

liable for want of notice of non-payment, will become liable on a new promise to pay, whether or not he knew of his defense. Third Nat. Bank v. Ashworth, 105 Mass. 503.

CONTRACTS - DEFENSES- STATUTORY INFORMALITY AS DEFENSE AGAINST SUIT BY GOVERNMENT. The defendant, whose bid for transportation of coal had been accepted by the United States Navy Department, was tendered a written contract in the form required by statute. U. S. REV. STAT., § 3744. This he refused to sign on the ground of variance. The government now sues for breach of contract. Held, that the plaintiff may recover. United States v. New York, etc. Steamship Co., 239 U. S. 88.

Although the statute in the principal case does not in terms invalidate unwritten contracts, the Supreme Court has held them unenforceable against the United States. Clark v. United States, 95 U. S. 539; Henderson's Case, 4 Ct. Cl. 75. This construction carries out the purpose of the statute, which is, in the words of its preamble, "to prevent and punish Fraud on the Part of Officers intrusted with making Contracts for the Government," for it assures to the government that all fraudulent contracts will be either written and on file or nugatory. But it would be going beyond both the terms and the purpose of the statute to extend this construction to make informal contracts unenforceable against the contractor, for it is inconceivable that Congress intended to protect him against frauds of the government. The objection that the government's promise thus becomes illusory, and hence no consideration for the contractor's promise, has no greater force than in contracts of infants or in contracts under the Statute of Frauds where only the defendant has signed the memorandum. Holt v. Ward Clarencieux, 2 Strange 937; Clason v. Bailey, 14 Johns. (N. Y.) 484. Nevertheless, as the contractor may well be led into expensive preparations which in no wise enrich the government, the lack of mutuality throws a burden on the contractor not wholly relieved by his right to recover in quantum meruit. Clark v. United States, supra. A possibility in the principal case not mentioned by the court is that both parties looked forward to the required formalities as a necessary preliminary to a binding contract. Mississippi, etc. Steamship Co. v. Swift, 86 Me. 248, 29 Atl. 1063. See Capital Printing Co. v. Hoey, 124 N. C. 767, 793, 33 S. E. 160, 168.

CORPORATIONS

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STOCKHOLDERS: RIGHTS INCIDENT TO OWNERSHIP RIGHT TO VOTE: VOTING TRUSTS. - The holders of the majority stock of a corporation transferred their stock to the president as trustee, taking in return trust certificates. The trust was to last for ten years, the absolute power to vote being in the trustee. The plaintiff purchased certain trust certificates, and upon demand being made the defendant refused to issue stock certificates in exchange for the trust certificates. The plaintiff brings a bill in equity praying a cancellation of the agreement and a decree ordering the stock to be issued. Held, that the relief should be granted, the agreement being void. Luthy v. Ream, 110 N. E. 373.

For a discussion of this case, see NOTES, p. 433.

CRIMINAL LAW - LIABILITY FOR OTHERWISE LAWFUL ACT RESULTING IN UNLAWFUL ACT OF OTHERS SALE OF LIQUOR WITH KNOWLEDGE THAT IT IS TO BE RESOLD ILLEGALLY. - The defendant sold liquor knowing that the buyer intended to resell it in violation of the law. Held, that he was guilty of aiding and abetting in the subsequent resale. Cook v. Stockwell, 113 L. T. R. 246 (K. B.).

It is a general rule that the intervening, independent acts of a third person, if foreseeable, will not make a preceding cause remote. Carter v. Towne, 98 Mass. 567; Jennings v. Davis, 187 Fed. 703, 709; Dixon v. Bell, 5 Maule & S.

198; Rexv. Oliphant, [1905] 2 K. B. 67; Reg. v. Butt, 15 Cox C. C. 564. And if, as in the principal case, the defendant's act clearly participated in producing the wrongful result, it is not material that it was not a causa sina qua non. Anderson v. Settergren, 100 Minn. 294, 111 N. W. 279; Binford v. Johnston, 82 Ind. 426; Reg. v. De Marny, [1907] 1 K. B. 388. However, it was once currently asserted and is still heard to-day, that this rule of foreseeability does not apply when the intervening independent acts were done wilfully and unsolicited. Andrews & Co. v. Kinsel, 114 Ga. 390, 40 S. E. 300. See Alexander v. Town of New Castle, 115 Ind. 51, 53. See 1 WHARTON, CRIMINAL LAW, 9 ed., § 160. But this limitation, which is inconsistent with the general principles of causation since intentional acts may be equally as foreseeable as negligent ones, has been much criticized and is less widely asserted to-day. See J. Smith, "Legal Cause in Actions of Tort," 25 HARV. L. REV. 103, 121; SALMOND, TORTS, 2 ed., 114. See Lynch v. Knight, 9 H. L. Cas. 577, 600; Meade v. Chicago, etc. Ry. Co., 68 Mo. App. 92, 100. Cf. Wise v. Dunning, [1902] 1 K. B. 167. Nor is proximate causation in the principal case negatived by the series of cases holding that a seller who did no acts tending directly to further the illegality, may enforce a contract of sale though he knew the goods were to be illegally resold in another jurisdiction. Graves v. Johnson, 179 Mass. 53, 60 N. E. 383; Hill v. Spear, 50 N. H. 253; Pellecat v. Augell, 2 Crompt. Meas. & Ros. 311. For these cases turn on questions of public policy and comity rather than of proximate causation. See Hill v. Spear, supra, at 273. Granting causation it is submitted that the fact that the defendant in the present case is not technically either a principal or an accessory does not prevent his conviction, for if causation and the necessary elements of an offense are made out, an arbitrary technicality of crimes at common law should not be carried over to support acquittal for violation of a police regulation. Reg. v. De Marny, supra. However, in enforcing liquor regulations it has been generally held that a person, whether buying for himself or as agent, cannot be held liable because the sale was illegal. State v. Rand, 51 N. H. 361; Commonwealth v. Willard, 22 Pick. (Mass.) 476; Evans v. State, 55 Tex. Cr. 450, 117 S. W. 167; Anderson v. State, 32 Fla. 242, 13 So. 435. But those cases are supportable on reasons applicable to buyers only. See 26 HARV. L. REV. 550. Hence they are not in conflict with the decision in the principal case.

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DAMAGES PENALTIES EFFECT OF POSTING PENAL SUMS TO SECURE PERFORMANCE OF CONTRACT. - The plaintiff and R., having formed a contract, placed the written agreement and $2,000 apiece with the defendant bank, which, in the event of a breach of this contract, was to pay the delinquent's deposit to the injured party. After the date set for performance of the contract, the plaintiff, contending that the arrangement for the payment of penalties was void, demanded the return of his deposit. On the bank's refusal to comply, he sues. Held, that he cannot recover without showing that R. has no claim on his deposit for damages. Kuter v. State Bank of Holton, 152 Pac. 662 (Kan.).

In lieu of the above arrangement, suppose that the plaintiff and R. had exchanged penal bonds of $2,000, to be void on performance by the obligors of their respective contractual duties. Equity, and subsequently the common law, early recognized that the condition was the essence of a penal bond and indicated the true limit of the obligation. Parks v. Wilson, 10 Mod. 515. See Collins v. Collins, 2 Burr. 820, 824; 2 SEDGWICK, DAMAGES, 9 ed., § 675 b; 2 BL. COM. 341. Consequently, it came to be held that in a suit at law on a penal bond the obligee could not obtain the sum named therein, which was a penalty, and recovery was limited to the loss actually ensuing from the non-performance of the condition. Kelley v. Seay, 3 Okla. 527, 41 Pac. 615; McIntosh v. Johnson, 8 Utah 359, 31 Pac. 450. Thus, though the obligation in the supposed case is

to pay $2,000, neither more nor less, and is unenforceable as such, the bond is not void, but remains a valid instrument which is regarded as security for the payment of damages. The interpolation of a third party to hold and pay penal deposits differs in no essential way from the exchange of penal bonds, for, although the third party is a stranger to the original contract, in both instances this latter agreement remains the substance of the transaction. It follows, therefore, notwithstanding the fact that the agreement in the principal case to pay over the penal sum was unenforceable as such, that the deposit remained a source of payment of possible damages.

· NATURE OF ESCHEAT

WHETHER SUBJECT

DESCENT AND DISTRIBUTION TO INHERITANCE TAX. - Real and personal property of an intestate without heirs escheated under a statute to the county wherein it was situated. The state sued to collect an inheritance tax under a statute imposing a tax on the transfer of any property "by will or by the intestate laws of this state." Held, that the transfer by escheat is subject to the tax. People v. Richardson, 109 N. E. 1033 (Ill.).

Under a similar statute providing for escheat the Probate Court with statutory powers to distribute intestate estates, decreed that the property of an intestate without known heirs escheated to the defendant county. The plaintiff, claiming as heir, now sues the county to recover the land, alleging that as an escheat was not a form of inheritance, the Probate Court had no jurisdiction. Held, that escheat was part of the scheme of distribution, and the Probate court had jurisdiction. Christianson v. County of King, Sup. Ct. Off., No. 67.

Under the English common law escheat was an incident of feudal tenure. On the failure of heirs or of inheritable blood to the tenant, the tenure was determined, and the land reverted back to the lord, the original grantor. See Co. LITT. 13 a; 2 BL. COм. 72, 244; 4 KENT COM. 423. Escheat in its feudal sense still persists in England. See WILLIAMS, REAL PROPERTY, 55. That this feudal escheat should not be subject to an inheritance tax is shown by the analogy that the coming into possession of a vested remainder upon the death of a life tenant is not so taxable. In re Pell's Estate, 171 N. Y. 48, 63 N. E. 789. But in the United States escheat in the feudal sense seems not to exist. See 3 WASHBURN, REAL PROPERTY, 6 ed., 61. It is doubtful whether there has been any feudal tenure in this country since the Revolution. See 2 BL. COм., Cooley's ed., 102 n.; 4 KENT COM. 424; I WASHBURN, REAL PROPERTY, 5 ed., 39-42. See contra, GRAY, RULE AGAINST PERPETUITIES, § 22. In a number of states it has been expressly declared non-existent. See GRAY, RULE AGAINST PERPETUITIES, $23. The state now succeeds to the estate of the deceased as ultimus haeres, by virtue of its sovereignty. See Matthews v. Ward's Lessee, 10 Gill & J. (Md.) 443, 451. See TIFFANY, REAL PROPERTY, § 458. Under the English common law escheat did not apply to personalty, nor to equitable interests in land; but in the United States it is now almost entirely regulated by statute, and includes the transfer to the state of property rights of every nature. Compare Burgess v. Wheate, I Eden 177, with Johnston v. Spicer, 107 N. Y. 185, 13 N. E. 753; Matthews v. Ward's Lessee, supra; Commonwealth v. Blanton's Executors, 2 B. Mon. (Ky.) 393. See STIMSON, AM. ST. LAW, §§ 1151, 1157. It is submitted that escheat in this country is properly included within "the intestate laws," and is therefore subject to the usual form of inheritance tax.

DIVORCE - DEFENSES - VOIDABILITY OF THE MARRIAGE. - The plaintiff brought an action for separation from her husband. The husband, in defense, pleaded facts that showed the marriage to be voidable at his election. Held, that this is not a good defense. Ostro v. Ostro, 155 N. Y. Supp. 681 (App. Div.).

It is axiomatic that a divorce proceeding must be predicated upon the exist

ence of a valid marital status, for it is that which it proposes to dissolve or modify. Mangue v. Mangue, 1 Mass. 240; Holtman v. Holtman, 114 S. W. 1198 (Ky.). See 2 BISHOP, MARRIAGE, DIVORCE, AND SEPARATION, §§ 732, 736. The principal case presents a voidable marriage, which, as distinguished from a void marriage, does bring into existence a valid marital status which continues and is good for all purposes until avoided. State v. Cone, 86 Wis. 498, 57 N. W. 50; Elliott v. Gurr, 2 Phill. Ecc. 16. See I BISHOP, MARRIAGE, DIVORCE, AND SEPARATION, § 259; 2 NELSON, DIVORCE AND SEPARATION, $569. It may be avoided only by judicial decree on motion of the proper party. N. Y. CONSOL. LAWS, 1909, ch. 19, § 7. Now if the defense offered in this case is in effect a cross bill for nullification, as it was in the English Ecclesiastical Courts, it might well be entertained, for nullification would necessarily render a divorce vain. See Guest v. Shipley, 2 Hag. Con. 321; Anon., I Deane Ecc. Rep. 295. And see ROGERS, ECC. LAW, 2 ed., 361; 1 BISHOP, MARRIAGE, DIVORCE, AND SEPARATION, § 273. But it is not such a cross bill, for the husband does not seek to avoid the marriage, nor is it clear that he ever will do so. To allow the contingency of future nullification as a defense to a suit for divorce would plainly violate the spirit of all the divorce laws. One spouse would be left entirely unprotected in a relationship in which the other is fully protected and in which he might see fit to continue indefinitely. Smith v. Cook, 24 Que. S. C. 469; Taylor v. Taylor, 173 N. Y. 266, 65 N. É. 1098. See Gould v. Gould, 125 App. Div. 375, 109 N. Y. Supp. 910; Von Prochazka v. Von Prochazka, 21 N. Y. 309, 3 N. Y. Supp. 301. But see Durham v. Durham, 99 App. Div. 450, 452, 91 N. Y. Supp. 295, 297.

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EQUITY – FORECLOSURE OF A MORTGAGE ON PROPERTY PARTLY IN A FOREIGN JURISDICTION - INDIRECT ORDER. - A corporation formed to irrigate California land found it necessary to build a canal through Mexican territory. By the law of Mexico a foreign corporation could not hold land there, so a subsidiary Mexican corporation was formed to hold the title. A large judgment was obtained against the California corporation for damages from failure to control the water. (The Salton Sea Cases, 172 Fed. 792). In pursuance of a plan to defeat the collection of this judgment and the foreclosure by bondholders of their deed of trust, by dividing the property so as to make each part valueless by itself, a creditor, who also owned the controlling interest in the California corporation, obtained a collusive judgment in Mexico against the Mexican corporation, sold the Mexican property on execution to its creature, a second Mexican corporation, and had a receiver put in charge of the property. The bondholders now bring a bill in equity to foreclose their deed of trust, and the judgment creditors intervene. Held, that the collusive creditor be enjoined from making use of the Mexican judgment or interfering with the property in Mexico, and that the property in California and the stock of the two Mexican corporations be sold as a whole. Title Insurance and Trust Co. v. California Development Co., 152 Pac. 542 (Cal.).

Equity, by its power over the defendant personally, will enjoin the prosecution of foreign suits and judgments in order to prevent fraud and collusion. Wonderly v. Lafayette County, 150 Mo. 635, 51 S. W. 745; Cole v. Cunningham, 133 U. S. 107. And this is true though the subject matter lies in a foreign jurisdiction. Bunbury v. Bunbury, 8 L. J. Ch. 297. But in the principal case equity had no power over the Mexican land and so the transfer thereof could not be declared void. Carpenter v. Strange, 141 U. S. 87; State v. Grimm, 243 Mo. 667, 148 S. W. 868. But in the ordinary case a reconveyance could have been ordered. Gardner v. Ogden, 22 N. Y. 327. And had the entire system been situated in States of the Union, the whole foreclosure by a decree of one of those States. Meade v. New York, etc. R. Co., 45 Conn. 199;

could have been subjected to Muller v. Dows, 94 Ú. S. 444; Union Trust Co. v. Olmstead,

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