cases.

As to what constitutes compulsory employment however, the provisions of the statutes vary so greatly that no uniform rule can be deduced from the Thus a New York statute, providing that any unlicensed person piloting a vessel to or from the port of New York shall be deemed guilty of a misdemeanor punishable by fine or imprisonment, has been held to make the pilotage compulsory. The China, supra. The Massachusetts statute, on the other hand, provides for a forfeiture of the whole pilotage fees if a tender of services is refused, and that of Louisiana inflicts a penalty of one half the fees; both statutes have been regarded in dicta as not compulsory. Martin v. Hilton, 9 Met. (Mass.) 371; The Merrimac, 14 Wall. 199. The same result was reached under a Pennsylvania statute by which a master is "required and obliged" to employ a pilot or forfeit one half the fees to a charitable organization. Flanigen v. Washington Ins. Co., 7 Pa. St. 306. In England the forfeiture of the fees is generally held to make the pilotage compulsory. The Maria, 1 W. Rob. 95. Yet curiously enough a penalty of double the fees has been interpreted in the opposite. Attorney-General v. Case, 3 Price 302. A vague distinction has been attempted in these cases between the forfeiture of pilotage fees and a "penalty." STORY, AGENCY, 2nd ed., § 456a. It is impossible from such a conflict to determine a satisfactory rule; it seems, however, that American courts do not consider a provision as obligatory unless its breach is punishable as a misdemeanor. Certainly the interpretation of the Pennsylvania statute is an indication of such an intention.

RECENT CASES.

AGENCY COMPULSORY PILOTAGE-NEGLIGENCE OF PILOT. - The defendant's vessel, under command of a licensed pilot, collided with the plaintiff's pier as a result of the pilot's negligence. The latter was employed under a New York statute which the court interpreted as compelling the employment of a pilot. The plaintiff sued for injury to his property. Held, that the defendant is not liable. Homer Ramsdell Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406. See NOTES, p. 405.

AGENCY MASTER AND SERVANT- INTENTIONAL ACT OF SERVANT.- - A pushcar belonging to a railroad company was in charge of a foreman who lent it after the day's work to X for the latter's own use. The plaintiff, while lawfully crossing the track, was injured by the negligence of X in running the push-car. Held, that the company is liable. Erie R. R. Co. v. Salisbury, 50 Atl. Rep. 117 (N. J., C. A.).

The act of the foreman was not merely a performance of the company's business in an irregular and unauthorized way; it clearly was entirely outside the scope of his employment, so that the company could not be held liable for the consequences of this as an affirmative act. Robinson v. McNeill, 18 Wash. 163; cf. Fiske v. Enders, 47 Atl. Rep. 681. In certain classes of cases, however, the master is under a duty to prevent certain things from happening, and if the servant to whom that duty is delegated, himself wrongfully causes one of those things to happen, the master may be held responsible, not for the doing of the act by the servant, but for the failure of the servant to prevent its being done. On this principle a railway company is liable for a wilful assault on a passenger by a train hand. White v. Norfolk, etc., R. R. Co., 115 N. C. 631. The doctrine applies to the custody of dangerous instruments such as torpedoes. Pittsburgh, etc., Ry. Co. v. Shields, 47 Oh. St. 387. The principal case might be supported on this basis, but the doctrine has never been applied to the custody of non-dangerous instruments, and a closely analogous case held very reasonably that a push-car belongs to the latter class. Branch v. International, etc., Ry. Co., 92

Tex. 288. No other ground is apparent on which to rest the decision of the principal case, which is therefore difficult to support.

BANKRUPTCY - PETITION OF CREDITORS - JOINING IN PETITION TO CURE DEFECT. - Under § 59 b of the Bankruptcy Act of 1898 "Three or more creditors who have provable claims against any person which amount . . . to five hundred dollars ... may file a petition. . ." Under § 36 "A petition may be filed . . . within four months after the commission of ... [an] act [of bankruptcy]." § 59 provides that "Creditors other than original petitioners may at any time... join in the petition Creditors whose claims amounted to less than five hundred dollars filed a petition against the defendant, and subsequently, more than four months after the alleged act of bankruptcy, other creditors sought to join in the petition in order to supply the deficiency. Held, that under § 59f they may join and thereby validate the original petition. In re Mackey, 110 Fed. Rep. 355 (Dist. Ct., Del.).

Although by its express terms § 59ƒ may not provide for correcting a defect in the original petition, still the natural object of a clause permitting a joinder of other parties would seem to be to allow an original insufficiency to be thereby remedied. See In re Romanow, 92 Fed. Rep. 510. It would consequently seem proper to construe 859 as if the words "in order to validate the petition" were inserted. This construction is justified moreover by its results, for otherwise the filing of a petition, apparently valid but in fact defective, might cause other creditors to refrain from petitioning until too late. This interpretation avoids any objection on the ground that the other creditors joined more than four months after the act of bankruptcy. The petition was filed within the time required by § 3 b, and § 59ƒ expressly provides that other creditors may join "at any time." In re Romanow, supra, holding that a defect in the number of petitioning creditors may be cured by subsequent joinder, appears to be the only decision in point.

BANKRUPTCY- SURRENDER OF PREFERENCES TIME OF RECEIPT. - The Bankruptcy Act of 1898, § 57g, provides that "The claims of creditors . . . shall not be allowed unless . [they] surrender their preferences." In 60 a, where certain judgments and transfers are declared to be preferences, no time is set within which such judgments or transfers must have been secured. A creditor who had received a preference more than four months previous to the filing of the petition against a bankrupt, sought to prove the remainder of his claim. Held, that he must surrender such preference before proving his claim. In re Abraham Steers Lumber Co., 110 Fed. Rep. 738 (Dist. Ct., S. D. N. Y.).

There appears to be no contrary decision on the point, but earlier cases, in which the preference was given within four months, laid some stress on that fact. In re Fort Wayne Electric Corp., 99 Fed. Rep. 400. A literal construction of §§ 57 g and 60 a undoubtedly leads to the conclusion reached by the court. It has however been contended that the effect of § 60 a is limited by other sections of the act, and especially by § 60 b, which makes voidable by the trustee preferences given, within four months before the filing of a petition, to one having reasonable cause to believe a preference was intended, thus imposing two additional qualifications. In a previous case the Supreme Court refused to consider a preference as defined by § 60 a to be limited by the second of these qualifications, and pointed out the just distinction between a preference which must be surrendered before claiming further payment from the trustee, and one which the trustee may recover although no such claim is made. Pirie v. Chicago Title & Trust Co., 21 Sup. Ct. Rep. 906; see 15 HARV. L. REV. 232. The same reasoning applies to the principal case, which is further supported by one previous decision. In re Jones, 110 Fed. Rep. 736. Legislation should supply the remedy if any is needed.

CONFLICT OF Laws - DAMAGES FOR BREACH OF CONTRACT. - A contract for the sale of Massachusetts land was made in New York and was to be performed there. The seller, through no fault of his, was unable to convey a good title. Under these circumstances, the law of New York and the law of Massachusetts provide different rules of damages. The buyer brought suit in Massachusetts. Held, that the law of New York governs the assessment of damages. Atwood v. Walker, 61 N. E. Rep. 58 (Mass.).

It has been held in Massachusetts that damages by way of interest for delay after demand pertain to the remedy, and are to be governed by the law of the forum. Ayer v. Tilden, 15 Gray (Mass.) 178. This is opposed to the great weight of authority.

Peck v. Mayo, 14 Vt. 33; Gibbs v. Fremont, 9 Ex. 25. In the principal case, however, the Massachusetts court adopts the rule that the law of the place of performance applies to all cases of damages, other than those for delay in payment. The reason for distinguishing the interest cases is not made very clear, but otherwise the decision seems correct on principle. A party to a contract gets originally the right to have the contract performed, See 8 HARV. L. REV. 27. When the contract is broken the law in force at the place of performance converts the right to performance into a right of action. See MINOR, CONFL. LAWS, § 205. Compensatory damages, being a mere measure of the right of action, ought therefore to be governed by the law of the place of performance. This view is supported by a dictum in Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190. With this exception no authority, other than the interest cases, has been found.

CONFLICT OF LAWS - JURISDICTION IN TORT DEATH CAUSED BY WRONGFUL ACT. An English vessel, by reason of the negligence of those in charge of her, ran into a Norwegian vessel on the high seas, and as a result a Norwegian seaman was drowned. His personal representative sued the owners of the English vessel in England. Held, that the plaintiff has a right of action under The Fatal Accidents Acts. Davidsson v. Hill, [1901] 2 K. B. 606.

The decision goes on the ground that a foreigner as well as a British subject is entitled to the benefit of statutory remedies. The case is treated precisely as if the cause had arisen in England, and the question of the lex loci delicti is not adverted to. The result reached, however, is correct according to the curious doctrine of the English courts. Recovery is allowed in England for any act, whether or not actionable where committed, which is actionable by English law, unless it has an affirmative legal justification by the law of the place where it was committed. Machado v. Fontes, [1897] 2 Q. B. 231. In the principal case, the court would be warranted in assuming that the act complained of, even if committed in Norwegian jurisdiction, had no affirmative legal justification. Cf. McDonald v. Mallory, 77 N. Y. 546. The English rule is not followed in the United States. Here the lex loci delicti is held to govern the right to sue. Le Forest v. Tolman, 117 Mass. 109; Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190. The fatal force having been applied on a Norwegian vessel on the high seas, the law of Norway would govern. United States v. Davis, 2 Sumn. (U. S. Circ. Ct.) 432; McDonald v. Mallory, supra. Consequently the plaintiff would fail unless the law of Norway allows personal representatives to sue for death by wrongful act.

CONSTITUTIONAL LAW-CONTROL of Congress ovER THE INDIANS-EMINENT DOMAIN. Held, that an Act appropriating Indian lands for town-site purposes and providing for compensation to the Indians, is within the power of Congress. Tuttle v. Moore, 64 S. W. Rep. 585 (I. T., C. A.). See NOTES, p. 399.

CONSTITUTIONAL LAW MUNICIPAL CORPORATIONS DEBT LIMIT exceeded FOR NECESSARY PURPOSE. A county seat having been destroyed by fire, the county, in order to rebuild the court house, issued warrants beyond the debt limit set by the constitution. Held, that the warrants are legal obligations because issued for something absolutely necessary. Farquharson v. Yeargin, 64 Pac. Rep. 717 (Wash.).

It has been held that in order to pay expenses which the constitution requires, warrants in excess of the constitutional debt limit may be issued. Rauch v. Chapman, 16 Wash. 568. This decision may perhaps be supported on the ground that the constitutional restriction ought not to be so construed as to make the constitutional mandate in any instance nugatory. In some jurisdictions obligations the assumption of which is compelled by statute are held not within the restriction. Grant County v. Lake County, 19 Or. 453. On the other hand, the opposite view is sometimes taken. Barnard v. Knox County, 105 Mo. 382; Lake County v. Rollins, 130 U. S. 662. The principal case is believed to be the first in which necessity other than that imposed by the constitution or by statute has been held to remove a debt from the constitutional restriction. If the decision means that the county authorities may judge of the necessity, the bars against extravagance which the people have placed in the constitution, are thrown down. If the court is to judge of the necessity, a check upon the counties is retained, but by compelling the court to decide a question of the sort usually belonging to the executive department to determine. There are decisions against the loose construction adopted in the principal case. Prince v. Quincy, 105 Ill. 138.

CONTRACTS ILLEGALITY — Restraint oF COMPETITION. The plaintiff, being on the point of entering into a contract with a city to furnish paving material for a street, the defendant agreed to pay him a sum proportionate to the amount of material used in paving the street, provided the plaintiff would not enter into the said contract, nor sell any crushed rock within the city during the remainder of the year. Held, that such a contract is not void as against public policy. Marshalltown Stone Co. v. Des Moines Mfg. Co., 87 N. W. Rep. 496 (Ia.).

The court seems to have based its decision entirely on the general rule holding illegal only those agreements in restraint of trade which are unlimited in time and space. This rule, however, has been applied almost entirely to contracts where one party agrees not to enter into a certain business in competition with the other. Diamond Match Co. v. Roeber, 106 N. Y. 473. In such cases the courts desire, while protecting the public, to give as wide a freedom of contract to the parties as possible. See Roussillon v. Roussillon, 14 Ch. D. 351. On the other hand it has been almost invariably held that agreements to stifle competition in bids for public work are void as against public policy. Hunter v. Pfeiffer, 108 Ind. 197; Gibbs v. Smith, 115 Mass. 592. At least one sufficient reason for these decisions is that the public is directly interested in the work which is the subject of the bidding, and therefore in having the competition unrestricted. This reason would apply equally in the principal case to the agreement of the plaintiff not to enter into the contract with the city, for, although there does not appear to have been an advertisement for bids as in the cases cited, the result to the public is substantially the same. No authority exactly in point has been found. The view proposed makes the consideration on which the plaintiff relies illegal in part. This is sufficient to bar his suit. Bishop v. Palmer, 146 Mass. 469.

CORPORATIONS DISSOLUTION - SURVIVAL OF ACTION. An action against a corporation for libel was abated by the dissolution of the defendant through the expiration of its charter. By statute, the former directors held the corporation property after dissolution in trust for creditors and stockholders. Held, that the suit may be revived against the trustees. Shayne v. Evening Post Pub. Co., 168 N. Y. 70.

The statute would seem to be merely declaratory and was not relied upon by the court. The word creditors, however, is broad enough to cover a claimant in tort. Barling v. Bishopp, 29 Beav. 417; see Marstaller v. Mills, 143 N. Y. 398, 401. No case in point unaffected by special statutes has been found, but one text-book at least may be cited in favor of the decision. ANG. & A., CORP., § 779 a. It was contended that the rule, actio personalis moritur cum persona, governed the case. The dissolution of a corporation, however, has not in all respects been treated like the death of a natural person. The latter event, at common law, extinguishes some actions, but others survive against the personal representative. The former extinguishes all actions at law, but in equity the corporation property after dissolution is a trust fund for creditors and stockholders. Vose v. Grant, 15 Mass. 505, 522; Wood v. Dummer,

3 Mason (U. S. Circ. Ct.) 308. In the principal case, therefore, the court is not restricting the operation of an ancient rule of law, but simply refusing to limit an equitable doctrine by applying an inequitable legal analogy. As the requirements of justice are clear, the decision ought to be accepted.

CORPORATIONS

PREFERENCE OF DIRECTORS. An insolvent corporation conveyed all its property in trust to pay debts of the corporation due to the directors and debts for which they were sureties. Held, that other creditors may set aside the trust deed on the ground that a majority of the directors were preferred. Nappanee Canning Co. v. Reid, 60 N. E. Rep. 1068 (Ind.).

It has been held that the assets of an insolvent corporation which has not been dissolved, form a trust fund to be ratably distributed among its creditors. Rouse v. Merchants' Nat. Bank, 46 Oh. St. 493. That doctrine seems now, however, to be discredited, and generally a corporation, like an individual, may prefer certain of its creditors. MOR., CORP., §§ 802, 803; Hollins v. Brierfield, etc., Co., 150 U. S. 371; II HARV. L. REV. 550. In jurisdictions where this is allowed, no sufficient reason appears why a corporation should not be able to prefer its directors. but a few such jurisdictions hold all preferences to directors illegal. Beach v. Miller, 130 Ill. 162; contra, Levering v. Bimel, 146 Ind. 545. There is also some authority for distinguishing as illegal a preference to a majority of the directors, on the ground that such a preference must have been secured partly at least by the votes of the preferred directors. Love Mfg. Co. v. Queen City Mfg. Co., 74 Miss. 290; contra, Worthen v. Griffith, 59 Ark. 562. The objection to allowing directors to profit by their own

votes seems to be that they are thus tempted to manage the corporation business for their own personal advantage. But this objection, though making the acts in ques tion voidable by the stockholders acting through the corporation, should not be available to persons toward whom the directors occupy no fiduciary relation. See Sanford, etc., Co. v. Howe, 157 U. S. 312. A creditor may generally proceed in bankruptcy, and other remedy should be left to the legislature.

DAMAGES-BREACH OF CONTRACT-PAyments due iN FUTURE. - By contract between a material-man and a contractor, eighty per cent. of the contract price of materials to be furnished by the former during each month, was payable on the first of the following month, and the remaining twenty per cent. on completion of the building. The contractor made default in the eighty per cent. payments, and in consequence the material-man refused to proceed with the contract and sued immediately. Held, that the twenty per cent. became due at once and can be recovered with the eighty per cent. before completion of the building. Mullin v. United States, 109 Fed. Rep. 817 (C. C. A., Second Circ.). See NOTES, p. 397.

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EQUITY INJUNCTION AGAINST ENFORCEMENT OF ERRONEOUS DECREE. contractor sued in a federal court to enforce a statutory lien on a railroad. perly prayed a sale of all the company's property and franchises; but the court, misconstruing the statute which created the lien, rendered a final decree against the company for a sale of a part of the road-bed. To restrain this sale, the company sought an injunction against the contractor in another federal court. Held, that the injunction should issue. Connor v. Tennessee Cent. R. R. Co., 109 Fed. Rep. 931 (C. C. A., Sixth Circ.).

The court presumably does not hold the original decree void. The validity of a decree may be collaterally attacked only for lack of jurisdiction, and if the remedy asked was proper it is not a jurisdictional defect that the remedy given was unjustified. Gum-Elastic Roofing Co. v. Mexico Pub. Co., 140 Ind. 158. Contrary holdings on this last point are confined almost entirely to habeas corpus cases, and a decision of the court which decided the principal case minimizes their force there. De Bara v. United States, 99 Fed. Rep. 942; see 9 HARV. L. REV. 287. The reasoning in the principal case is that, since the decree alone cannot and the statute does not remove the common law disability of the railroad company to convey its property separate from its franchises, a deed according to the decree will be void; and that equity should excuse the plaintiff from clouding its own title. On authority, however, equitable relief against the result of proceedings by the same parties in another court must have some further reason than irregularity or errcr in those proceedings; failing that, the former adjudication binds. Bateman v. Willoe, 1 Sch. & Lef. 201; Marine Ins. Co. v. Hodgson, 7 Cranch 332. That the decree deals with property specially exempt does not justify disregarding this rule of administration. Crowley v. Davis, 37 Cal. 268. From this it follows that the present plaintiff should be able to escape obedience to the original decree only by appeal.

EQUITY TRUSTS ASSIGNMENT OF WHOLE AMOUNT OF PARTIALLY PAID CLAIM. The plaintiff assigned to the defendant a claim against an insolvent, upon which, before the assignment and unknown to both parties, payments had been made by the insolvent's assignee to the plaintiff's attorney. The defendant, learning these facts, induced the attorney to pay to him the amount so received. The plaintiff brought an action for reformation of the contract of assignment and for other equitable relief. Held, that he is not entitled to relief. Curtis v. Albee, 167 N. Y. 360. See NOTES, p. 401.

EVIDENCE - HEARSAY · COMPLAINTS OF RAVISHED CHILD TOO YOUNG TO TESTIFY.- - The accused was indicted for rape upon a child too young to be a witness. Held, that testimony that complaints were made by the child shortly after the occur. rence is admissible. People v. Figueroa, 66 Pac. Rep. 202 (Cal., Sup. Ct.).

When the prosecutrix has testified to the alleged criminal act, evidence that she made complaint shortly after the commission of the crime is admissible. Commonwealth v. Cleary, 172 Mass. 175. The rule rests upon the reason long ago stated by Lord Hale that such evidence corroborates the testimony of the prosecutrix. I HALE, P. C., 632, 633. Accordingly cases are numerous holding such evidence inadmissible unless the prosecutrix has testified. Hornbeck v. State, 35 Oh. St. 277. In California, however, the law seems fixed in accordance with the principal case. People v. Barney,