from the office being vacant is no defense to a proceed. ing by the state in the nature of quo warranto. — State v. Lund, Mo., 66 S. W. Rep. 1062.

145. PARTIES-Partners as Defendants. Where cap. tion gives individual names of partners as defendants, and references to them are in the plural, the action will be held to be one against the individuals named. -Burke v. Unique Printing Co., Neb., 88 N. W. Rep. 488.

146. PARTITION-Trustee in Deed of Trust as Necessary Party.-A beneficiary or trustee in a deed of trust executed after the commencement of a partition suit by a party thereto is not a necessary party to the suit.Becker v. Stroeher, Mo., 66 S. W. Rep. 1083.

147. PAUPERS-Liability of Township.-A township is not liable for medical services rendered non-resident pauper.-Gilligan v. Town of Grattan, Neb., 88 N. W. Rep. 477.

148. PLEADING— Amendment. Though an amend. ment to a pleading, not changing its legal effect, may be allowed after the submission of the cause, it is error to permit at such time an amendment changing the issue or making a new one. - Mathews v. Rund, Ind., 62 N. E. Rep. 90.

149. PLEADING Demurrer to Rejoinder. - Parties, having gone to trial on an issue joined by a rejoinder, cannot thereafter claim that demurrers filed to the rejoinders should have been carried back to the replica. tions, and sustained on the ground that the issue was immaterial.-People v. Barnes, Ill., 62 N. E. Rep. 207. 150. PLEADING-Legal Capacity to Sue. The statu. tory ground of demurrer that plaintiff has no legal capacity to sue refers to some legal disability of plaintiff, and not to the failure of the (complaint to show a cause of action in him.-Pittsburgh, C., C. & St. L. Ry. Co. v. Iddings, Ind., 62 N. E. Rep. 112.

151. PLEADING-Uncertain Averments. Where the only matters concerning which the complaint is uncertain are peculiarly within the knowledge of defendant, the latter will not be heard to complain thereof.-Schaake v. Eagle Automatic Can Co., Cal., 67 Pac. Rep. 759.

152. PRINCIPAL AND SURETY-Right of Co-surety Pay. Ing Debt.-A co surety, who pays the debt of the prin. cipal, may foreclose the mortgage executed to secure the sureties, without joining the other surety.-Morgan v. Street, Ind., 62 N. E. Rep. 99.

153. PROHIBITION-Revocation of Letters of Adminis. tration. Where, notwithstanding an order revoking letters of acmtnistration, which operated as a super. sedeas, the probate court asserts the right to enforce its order, the supreme court may prevent it from doing so by a writ of prohibition.- Cuen det v. Henderson, Mo., 66 S. W. Rep. 1079.

154. PUBLIC LANDS — Assignment of Desert Land Entryman.-A entry of land under the desert land act of 1877 is assignable during the life of the entryman, and on his death descends to his heirs.-Phillips v. Carter, Cal., 67 Pac. Rep. 1031.

155. PUBLIC LANDS-Burden of Proving Failure to Appraise School Lands.-One contesting an award of school land, on the ground that it had not been ap. praised at the price offered by the first appellant, has the burden of showing that the land was not so appraised.-Davis v. McCauley, Tex., 66 S. W. Rep. 1124. 156. QUIETING TITLE-Additional Complaint.-Under Burns' Rev. St. 1894, § 402, relating to supplemental pleadings, held error, in a suit to quiet title, to permit, after submission of the cause, an additional complaint demanding damages for destruction of an easement.-Mathews v. Rund, Ind., 62 N. E. Rep. 90.

157. QUO WARRANTO-To Recover Public Office.- Quo warranto by a citizen to recover a public office held fatally defective, where it fails to allege that he has applied to the prosecuting attorney to file the same, and he has refused.-Harpham v. State, Neb., 88 N. W. Rep. 489.

158. RAILROADS - Combustible Rubbish on Track Causing Fire.-Negligence of a railroad company in suffering fire to escape from its right of way may be established by proof of negligently permitting com. bustible rubbish and grass to accumulate on its right of way.-Pittsburgh, C., C. & St. L. Ry. Co. v. Iddings, Ind., 62 N. E. Rep. 112.

159. RAILROADS- Fallure to Leave Openings in Fence. -In an action for animals drowned because of failure of defendant to leave openings in its right of way fence, that the flood was unprecedented held not to affect the question of defendant's negligence.- Gulf, C. & 8. F. Ry. Co. v. Clay, Tex., 66 S. W. Rep. 1115.

160. RAILROADS-Liability to Trespasser.-A railroad company held not liable for injuries received by a trespasser on its tracks, in the absence of any show. ing of willful negligence.-Cannon v. Cleveland, C., C. & St. L. Ry. Co., Ind., 62 N. E. Rep. 8.

161. RAILROADS-Power to Lease Road.-A provision in the charter of a railroad corporation, empowering it to "make contracts for operating said road, empow ered the corporation to lease its road, but not so as to relieve it from liability for the negligence of the lessee.-McCabe's Admx. v. Maysville & B. S. R. Co., Ky., 66 S. W. Rep. 1054.

162. RECEIVERS-Cause of Action.-It is no ground of objection to the court's jurisdiction over the sub. ject-matter in an action for a receiver that no joint cause of action is stated in the several plaintiffs.Chicago & S. E. Ry. Co. v. Kenney, Ind., 62 N. E. Rep. 26.

163. RECEIVERS-Refusing to Postpone Hearing.-In an action for the appoinment of a receiver, it was not error to refuse to postpone the hearing on tender of a bond for payment of the plaintiff's claims found due, which was not large enough to cover all their claims. -Chicago & S. E. Ry. Co. v. Kenney, Ind., 62 N. E. Rep. 26.

164. REMOVAL OF CAUSES-Because of Non-Residence. -A removal of a cause to a federal court cannot be had by a non resident defendant, where a resident defendant is properly sued jointly with him.-McCabe's Admx. v. Maysville & B. 8. R. Co., Ky., 66 S. W. Rep.

1064.

165. SALES Rescinding for Breach of Warranty.-A contract of sale, accompanied by a warranty of quality, cannot be rescinded for a breach of the war. ranty; the remedy being on the warranty.-H. W. Williams Transp. Line v. Darius Cole Transp. Co., Mich., 88 N. W. Rer. 473.

166. SCHOOL AND SCHOOL DISTRICTS-De Facto Offcers.-Board of education elected in a school district organized from parts of two adjoining townships held to be de facto officers, and hence their legal existence was not open to collateral attack.-Gale v. Knopf, Ill., 62 N. E. Rep 229.

167. SET OFF-Claim Bought After Insolvency of Creditor.-A debtor of an insolvent bank cannot set off against his debt a claim against it which he bought after its insolvency.-Dyer v. Sebrell, Cal., 67 Pac. Rep. 1036.

168. SET OFF AND COUNTERCLAIM-Contract to Pay Debt to Defendant.-A contract between plaintiff and a corporation, by which the former was to pay a certain debt to defendant, held not to authorize defend ant to set off such debt in an action against him by plaintiff.-Clare v. Hatch, Mass., 62 N. E. Rep. 250.

169. SIGNATURES-Validity of "Mark" or Other Symbol.-Written instruments by illiterate persons are properly attested by any mark, symbol, or char. acter they may employ for that purpose. - Iowa Loan & Trust Co. v. Greenman, Neb., 88 N. W, Rep. 518.

170. SPECIFIC PERFORMANCE-Contracts Binding on Only One Party.-The court will not decree that one party shall specifically perform a contract which the other party, at his option, may refuse to carry out.

Federal Oil Co. v. Western Oil Co., U. S. C. C., D. Ind., 112 Fed. Rep. 373.

171. STATUTES-Rule of Uniformity.-A constitutional rule of uniformity is not violated by statutes fixing jurisdiction of courts, if all courts of the same grade have jurisdiction of the same matters and equal authority in dealing with them.-Moores v. State, Neb., 88 N. W. Rep. 514.

172. STREET RAILROADS-Excavations on Street.Under Pub. St. ch. 113, § 32, a street railway company is not liable for injuries caused by an excavation in the street made by authority of the city and within 18 inches of the tracks.-Leary v. Boston El. Ry. Co., Mass., 62 N. E. Rep. 1.

173. SUBROGATION-Assumption of Debt by Joint Mortgagor.-Where a father mortgaged land owned jointly with his children for his own debt, and there. after the children assumed the debt, they were entitled to be subrogated to the rights of the mortgagee. -Ft. Jefferson Imp. Co. v. Dupoyster, Ky., 66 8. W. Rep. 1048.

174. TAXATION-Burden of Proving Irregularities of Tax Sale.-In a proceeding to foreclose a tax lien, tax sale certificate held prima facie evidence of compliance with statute, and burden of proving irregularities is on the party asserting them.-Darr v. Wisner, Neb., 88 N. W. Rep. 518.

175. TAXATION-Estoppel to Collect Taxes Marked "Paid." Equitable estoppel held not to apply as against a municipality, so as to preclude it from collecting taxes marked "Paid" by an employee by mis. take.-Philadelphia Mortgage & Trust Co. v. City of Omaha, Neb., 88 N. W. Rep. 523.

176. TAXATION-Omission of Other Taxable Property. -Omission of certain taxable property in a township from taxation will not invalidate the tax against the remaining property, though Increasing the amount thereof.-Auditor General v. Sage Land & Improvement Co., Mich., 88 N. W. Rep. 468.

177. TAXATION-Right to Restrain.-Under Comp. St. 1901, ch. 77, art. 1, § 144, an injunction will not be granted to restrain the collection of taxes unless the assessment is void or the tax is levied for an illegal purpose.-Philadelphia Mortgage & Trust Co. v. City of Omaha, Neb., 88 N. W. Rep. 523.

178. TITLE-Constructive Notice by Recorded Trust Deed. A recorded deed of land embraced in a trust deed, by a beneficiary in the trust deed, will not impart constructive notice of the interest of the grantee to a subsequent purchaser of the legal title, as the deed is not in the chain of title.-Becker v. Stroeber, Mo., 66 8. W. Rep. 1083.

179. TRIAL-Failure to State Reason for Excepting to Exclusion of Evidence.-Where evidence, the admis. sion of which was discretionary, was excluded after objection to its admission for a certain purpose, counsel's failure to explain that it was offered for a different purpose was proper for consideration in determin. ing whether the trial court abused its discretion.Citizens' St. R. Co. v. Heath, Ind., 62 N. E. Rep. 107.

160. TRIAL Instruction for Nominal Dainages. Where no instruction was asked as to the right of plaintiff to nominal damages, although his land was not in fact injured, he cannot complain that no such Instruction was given.-Hommel v. Lewis, Ky., 66 S. W. Rep. 1041.

181. TRIAL-Interrupting Argument of Counsel.- A court is not required to interrupt the argument of counsel on the ground that it is unsound, and the opposing party, to save the question, must request a n instruction thereon.- O'Driscoll v. Lynn & B. St. R. R., Mass.. 62 N. E. Rep. 3.

182. TRIAL-Requests for Directed Verdicts by Both Parties. Request for a directed verdict by both parties at the close of a trial held not necessarily a waiver of the right to have the cause submitted to the Jury.-Poppitz v. German Ins. Co., Minn., 88 N. W. Rep.

438.

in

183. TRUSTS-Operating Words of Conveyance.-An instrument declaring a trust, but containg no operathe words of conveyance, or words showing an inten. tion of the grantor to pass the legal title, is insuffi. cient to create a legal estate the grantee. Becker v. Stroeher, Mo., 56 S. W. Rep. 1083. 184. VENDOR AND PURCHASER-Rescinding Because of Incumbrances. Where the owner of land gives a bond for a deed free from incumbrances, and before the giving of a deed a portion of the land is con demned, the purchaser may rescind.-Kares v. Covell, Mass., 62 N. E. Rep. 244.

185. VENUE-Burden of Proving Non Residence. The burden of proof is on a defendant to show that neither he nor his co-defendants resided in the county where the suit was brought at the time the action was commenced, if he would have a change of venue on that ground. — Quint v. Dimond, Cal., 67 Pac. Rep. 1034.

186. WASTE-Removal of Coal.-The removal of coal from lands by defendant, who held a determinable fee therein, the estate being conditioned to pass to plaintiff as an executory devise if defendant died without leaving children, held not such equitable waste as would authorize an injunction at the suit of plaintiff.-Gannon v. Peterson, Ill., 62 N. E. Rep. 244, 187. WATERS AND WATER COURSES Enjoining Diversion of Water.-Code Civ. Proc. § 625, does not entitle a party to a jury trial of all issues in a suit to enjoin a diversion of water and for damages; but the court may make findings of fact and law on equitable issues. Churchill v. Loule, Cal., 67 Pac. Rep. 1052.

188. WATERS AND WATER COURSES-Liability of Railroad Discharging Surface Water.-Where a railroad company so constructs its roadbed as to dam surface water and discharge unusual quantities of accumu. lated water on adjoining lands, it will be liable for the damage caused thereby.-Chicago, R. I. & P. R. Co. v. Shaw, Neb., 88 N. W. Rep. 508.

189. WATERS AND WATER COURSES-Paying Cost of Construction.- Under Acts 1898, ch. 66, authorizing & city to acquire the property of a water company, the city is required to pay the cost to the corporation of the construction of waterworks, and not the cost to the contractor.-Town of Falmouth V. Falmouth Water Co., Mass., 62 N. E. Rep 255.

190. WATERS AND WATER COURSES-Right to Store Water for Subsequent Discharge.-Persons engaged in transporting logs on a natural stream held not entitled to store water and suddenly discharge the accumulation, so as to overthrow and wash away the banks of the stream.-Brewster v. J. & J. Rogers Co., N. Y., 62 N. E. Rep. 164.

191. WITNESSES-Cashier's Testimony of Transactions With Deceased Borrower.-The cashier and stockholder of a bank held not disqualified, by Rev. St. 1899, § 4652, from testifying as a witness to a transaction with a borrower, since deceased, and its discount committee, in negotiating a loan.-Southern Commercial Sav. Bank v. Slattery's Admr., Mo., 66 S. W. Rep. 1066.

Central Law Journal.

ST. LOUIS, MO., MAY 30, 1902.

ARE NATIVES OF JAPAN ELIGIBLE TO CITIZENSHIP UNDER THE NATURALIZATION LAWS.

The Supreme Court of Washington is wrestling with an interesting question of naturalization,-the power of the court to invest a native of Japan with the rights of citizenship. The question arose over the admission of a young Japanese to the bar of that state. The young man was a graduate of the State University Law School, and passed in a very creditable manner the regular examination for the bar. On May 17, 1902, the Supreme Court of Washington adopted the following order: "An applicant for admission to the bar is required to be a citizen of the United States. The court is in doubt whether a native of Japan is entitled, under the naturalization laws, to admission to citizenship. The applicant and his counsel will, therefore, file a brief and argument within thirty days."

A person may become a citizen of the United States in two ways: first, by birth within its jurisdiction, and second, by naturalization. By the first method any alien of any race or color may claim citizenship as a natural right. His accidental good fortune of seeing the light of day for the first time within the jurisdiction of the United States entitles him under the constitution to all the rights and privileges of citizenship. See the case of United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. Rep. 456, for an exhaustive discussion of this phase of the question.

An alien may also become a citizen by naturalization. By this method, however, not every alien has an equal right before the law. Congress has, by statute, limited the right of naturalization to "aliens being free white persons and to aliens of African nativity and to persons of African descent." U. S. Rev. St. § 2169. The gross inaccuracy and indefiniteness of this limitation is very apparent. No distinction of race is made whatever upon strictly ethnological grounds. On the basis of color, only "white persons" are entitled to naturalization, which at once

raises the difficulty of deciding who are white persons. Color, in the science of ethnology, raises no conclusive presumption as to race and is only one element in the settlement of racial distinctions. On the basis of nativity, only one continent, Africa, the darkest and most unenlightened of them all, is given the exclusive privilege of presenting candidates for naturalization. Under this latter provision a person of any race, or of any color or of any condition of servitude is entitled to demand the rights of citizenship if his credentials sufficiently show him to have been born within the borders of the dark continent. The mere fact that this latter extension of the right of naturalization was made during the excitment of anti-slavery agitation does not sufficiently explain its apparent absurdity.

It was natural, that this statute, so inaccurately constructed, should have given rise to much confusion. In the case of In re Ah Yup, 5 Sawy. 155, it was held that the phrase "white person," as used in the naturalization law, means a person of the Caucasian race, and does not include one who belongs to the Chinese or Mongolian race. The distinction sought to be made by this decision is scientifically faulty and inaccurate. It is now fully anknowledged that the Caucasian forms only a small proportion of what may be termed the white races. In the case of In re Camille, 6 Fed. Rep. 256, it was held that a person half white and half Indian blood is not a "white person" within the meaning of this phrase as used in the naturalization law. It might be interesting to know to what race such a person belongs in whose veins flows the mixed blood of different races. On this point the court says: "As a matter of fact, this person is as much an Indian as a white person, and might be classed with one race as properly as the other. Strictly speaking, he belongs to neither." In the case of In re Kanaka Nian, 6 Utah 259, 21 Pac. Rep. 994, it was held that a native of the Hawaiian Island, being a Malayo-Polynesian, a division of the Malay race, was not eligible to citizenship. The court rested its decision on the case of In te Ah Yup, supra, confining "white persons" to members of the Caucasian race. The case of In re Saito, 62 Fed. Rep. 126 would seem to settle the particular inquiry of this edi

torial. In this case it was held that a native of Japan, being a member of the Mongolian race, was not entitled to naturalization, since he could not reasonably be included within the term "white persons." Judge Colt rests his principal contention on the debates in congress in 1870 over the motion of Charles Sumner to strike out the word "white" from the naturalization laws. He offers to show from the Congressional Record that the motion was defeated and the word "white" retained for the sole purpose of excluding members of the Mongolian race from citizenship. Then came the important case of In re Rodriguez, 81 Fed. Rep. 337, which practically overruled the case of In re Camille, supra, and upset the reasoning of all previous cases. Able and interesting briefs were solicited by the court from prominent attorneys treating the subject pro and con in a most exhaustive manner. They are published in full, preceding the court's opinion, and serve principally to show how obscure and confused is the law upon this question. In this case the applicant was a native Mexican, a cross between the Aztec and the Spaniard, with the distinctive copper colored complexion of that mixture. The most plausible argument must necessarily fail to classify such an applicant as a "white person," either in the strict sense of that term or in the construction given to it by the preceding anthorities. Nevertheless, the court held that the native races of Mexico, whatever might be their status from the standpoint of the ethnologist, were eligible to American citizenship. The United States Supreme court has not as yet passed upon this question, the case of Elk v. Wilkins, 112, U. S. 94, often cited in the discussion of this question, having in reality nothing to do with it. That case involved the right of citizenship by birth, not by naturalization, and, in particular, held that an Indian, although born in the United States, is not born "subject to the jurisdiction thereof" where the tribal relations have not been severed by treaty or by some other definite.act of the government.

The authorities on this question are evidently too confusing to furnish the basis of any definite rule. After a careful examination of the question, apart from the authorities, we are led to a conclusion quite different

Plainly

from any advanced in these cases. and unequivocally stated, we believe the true rule to be that persons of all nations, save the Chinese who are expressly excluded, who measure up to the requisite moral and educational qualifications of the act of naturalization may be invested with the rights of American citizenship. We are supported in this conclusion by many important considerations. The phrase "white persons, on the proper construction of which the whole controversy hangs, was incorporated into the act of naturalization in the year 1790. At that time savage negroes from the heart of Africa were being imported into the country in large numbers in the interest of the slave trade. To withhold the right of citizenship from this most undersirable of classes was undoubtedly the sole

purpose of this limitation. Negro domination rather than Mongolian domination was the great fear of the early statesmen. In 1868 congress passed an act prohibiting the impairment of the right of expatriation and declaring the policy of this government hitherto to have been "to freely receive imigrants from all nations, and invest them with the rights of citizenship." The enacting clause of this statute denounces, as inconsistent with the fundamental principles of the republic, any opinion, decision or order of any United States officer which denies or questions the right of expatriation. While expatriation and naturalization are two distinct rights, the later may be said to be complementary to the other; at least, the declaration of policy in the preamble to this act includes both rights although the enacting clause has reference to only one of them. In 1869 under the strong reaction in favor of the negro, succeeding upon his emancipation, congress was overcome with a desire to bestow upon the whole negro race the great boon of American citizenship, to which end an effort was make to strike out the word "white" from the statute on naturalization. At this time, however, the Chinese were flocking to this country in large numbers and the fear of Chinese domination was very strong. For this reason the amendment was rejected and the present special provision substituted, extending the naturalization laws to the African race. Although much doubt was expressed

all

countries;

in debate, it was believed that the retention of the word "white" would prevent the naturalization of the Chinese, which was the sole intention of congress in retaining the use of that word. A large minority were in favor of admitting the desirable people of all nations and and even the majority had no other purpose, except as to the Chinese whom they particularly desired to keep out. Even after this, however, some courts continued to admit Chinese to naturalization and it was to declare the definite intention of congress to prohibit the naturalization of the Chinese that in 1882 it was expressly provided "that hereafter no state court or court of the United States should admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed." In this connection, the language of the court in the case of In re Rodriguez, supra, is significant: "If Chinese were denied the right to become naturalized citizen under the laws existing when In re Ah Yup was decided, why did congress subsequently enact the prohibitory statute above quoted? Indeed, it is a debatable question whether the term "free white person," as used in the original act of 1790, was not employed for the sole purpose of witholding the right of citizenship from the black or African race.

It seems reasonably clear and hardly even debatable, that the intention of congress in relation to the statute of naturalization was to invest with the rights of citizenship the people of all nations with exception of the Chinese. This exception was based on grounds of expediency peculiar to this particular people and which have been prominent in all our dealings with them. They have no application to any other nation and certainly not that of Japan, the most enlightened representative of Oriental civilization. The cleanliness and resourcefulness of the Japanese, in addition to their more than ordinary mental and moral qualifications, constitute them most desirable candidates for naturalization.

most absurd and curious grounds. In a recent case, City of Rome v. Cheney, 39 S. E. Rep. 933, a child stepped into a large open sewer or drain on the edge of the sidewalk and was drowned. The drain was four feet wide and two feet deep, made for the purpose of carrying off surface water. The Supreme Court of Georgia held that this was not such a contrivance as would be so inviting to a child nine years old that the city would be liable for his death by drowning due to his playing in the drain during or just after a very heavy rain.

This case is in close analogy with the case of Clarke v. City of Richmond (Va.), 5 S. E. Rep. 369, 5 Am. St. Rep. 281, where the true rule in these cases is stated. In that case, a child six years old, while walking on a stone coping adjacent to the sidewalk, the top of which was from fifteen inches to two feet high, fell into an excavation which had been made by the city, receiving injuries for which he brought suit. It was held that this coping was not an enticing structure, within the meaning of the rule which holds persons liable for damages if they neglect suitable barriers around dangerous objects near the streets and sidewalks, likely to allure children to their hurt. In the course of the opinion the court uses the following language, which we think is directly applicable to the case now before "The obligation of municipal corporations to erect barriers around areas adjoining or extending into its sidewalks or highways grows out of the duty which rests upon municipal corporations to maintain their streets and sidewalks in safe condition for those who may be rightfully using them, whether they be grown persons or children; but this duty cannot be held to extend to the protection of children against every sudden freak that may possess them."

us:

CORPORATIONS-RIGHTS AND REMEDIES OF MINORITY STOCKHOLDERS BECAUSE OF FRAUD.— In this day of huge corporate enterprises the opportunities for dishonest gain through stock manipulation are more abundant than ever. It is reassuring to note, however, that courts of equity have taken no backward step since the days of Lord Hardwicke, and are just as ready to strip fraud of its covering and apprehend the guilty parties. Corporate frauds are among the most difficult of detection and punishment, but the recent cases evidence a most vigorous and successful handling. Thus, in the recent case of Mumford v. Development Co.,111 Fed. Rep. 639,it was held that a bill filed by minority stockholders, which alleges, in substance, that the majority have, by electing directors who act solely in their interests, caused contracts to be entered into by the corporation transferring all of its property to a second corporation, of which they are owners, for a wholly inadequate consideration, states a cause of action which entitles complainants to relief.

The court further held that although the