and it further appears that the two others and himself jointly owned the mill property itself, there was clearly a partnership between the parties: Camp v. Montgomery, 73 or 74 Ga.

The weight of authority and reason seems to be decidedly in favor of the rule that there may be a legal and valid partnership although one or more of the parties are guaranteed by the others against loss. And notwithstanding the last clause of section 1890 of the Code, that a "common interest in profits alone does not constitute a partnership," the rule is the same in this state: Id.

If parties go into an adventure, one furnishing money or stock and the other skill or labor, and to share the net profits, they are partners, since they have a joint interest in the profits as contradistinguished from the common interest. A fortiori is there a partnership where, in addition to this, there is a joint interest in the property used: Id.

RAILROAD. See Contract; Negligence.

RECEIVER. See Corporation; Equity.

SALE.

Misrepresentation-Four hundred and ten shares of the stock of an electric light company, recently organized, were paid for to the company by its stockholders, at the rate of one-third of the par value of one hundred dollars a share. The plaintiff sold five of his shares, thus paid for, to the defendant at par, representing that all stockholders had paid for their shares at par. Held, that the plaintiff's statement was a misrepresentation of a material fact; that the defendant would have the right to infer from the representation that the company had assets of forty-one thousand dollars, instead of assets of only one-third of that amount: Coolidge v. Goddard, 77 Me.

SHIPPING.

Earnings-Action by Purt Owners -Tenants in common must join in an action to recover the earnings of their vessel unless there is an excuse for a severance of the claim; but bankruptcy of one owner is not an excuse: in such case the assignee of the owner who is in bankruptcy must be joined with the solvent owners, or, if an assignee has not been appointed when the suit is commenced, an action may be supported in the names of the bankrupt and other owners until an assignee comes in: Stinson v. Fernald, 77 Me.

SPECIFIC PERFORMANCE. See Equity.

TAX.

Public Buildings of Municipal Corporation.-Buildings and other property owned by municipal corporations and appropriated to public uses, are but the means and instrumentalities used for municipal and governmental purposes, and are, therefore, exempt from general taxation, not by express statutory prohibition but by necessary implication: Inhabitants of Camden v. Camden Village, 77 Me.

A village corporation was authorized by its charter to raise money to defray the expenses of a night watch, police force, fire department, &c., and also to erect a hall. The building thus erected contained a public

hall, police court room, assessors' office, lock-up, &c, and, when not in use for meetings and for purposes of the corporation, the hall and other rooms were let for hire, and the money received therefrom was used towards paying the expenses of the corporation. Held, that the building and lot were not liable to taxation by the town in which they were situated. Id.

TRUST. See Frauds, Statute of.

Resulting Trust.-The title to a house and lot was taken in 1852 in the name of one R., but the consideration was paid by one D., who, with his family, continuously occupied the premises thereafter until his death, and paid the taxes thereon and for all improvements and repairs, without accounting for the rents to R., or being called on by R. to do so. R., at the request of D., afterwards conveyed the premises to C., who was D's daughter by a former wife. Held, that D. had a resulting trust in the premises, and that his wife, the respondent, was entitled to dower therein Mershon v. Duer, 40 N. J. Eq.

TAX AND TAXATION.

No Collector-Power of Court of Equity to Appoint Person to Collect the Taxes.-Where the proper officers of a county or town have levied a tax for the satisfaction of judgments against it, and no one can be found to accept the office of collector, a court of equity has no jurisdiction to fill that office or to appoint a receiver to perform its functions: Thompson v. Allen Co., S. C. Ü. S., Oct. Term 1885.

USURY.

Parol Evidence-Agreement to Pay Taxes.-The general rule that parol evidence is not admissible to change the terms of a written contract, has its exceptions, as, in respect to the consideration expressed in notes and conveyances. Such evidence is also admissible where usury is pleaded, regardless of the form the transaction may have in the writings executed by the parties: Kidder v. Vandersloot, 114 Ill.

A person borrowed $2500 on several years' time, and to secure its payment, with interest, conveyed to the lender eighty acres of land, taking back a written contract for a reconveyance on payment of the principal and ten per cent. interest annually, that rate being the highest then allowed by law to be contracted for, with $20 yearly for taxes on the land, making $270 annually, and the proof showed that only $250 was in fact paid as interest, and that on payment of that sum, and producing a receipt for the taxes of such year, he was credited with $270. It was held, the transaction was not usurious, and that the $20 was but a guaranty for the payment of the taxes, which were chargeable against the mortgagee by reason of the legal title being in him: Id.

THE

AMERICAN LAW REGISTER.

MARCH 1886.

TESTAMENTARY PROVISIONS AS AFFECTED BY THE RULES OF PRIVATE INTERNATIONAL LAW.

Plaisante justice qu'une rivière ou un montagne borne.-PASCAL.

SECT. I. INTRODUCTORY.

MUNICIPAL laws cannot propriore vigore have any extra-territorial bearing or effect. This limitation of their scope leaves two classes of cases unprovided for: First, cases arising between states having no common superior; secondly, cases where the subjects of one state have rights or obligations which are questioned or impaired in another. The first class of cases is settled by the Public International Law, a set of rules emanating from common agreement in practice, or the original compacts of states. And to determine before the courts of what state a case of the second class is to be heard, and by the law of what state determined, is the special province of International Private Law. This system consists of rules of interstate comity, affecting to regulate the rights and acts of persons as depending on a diversity of laws and jurisdictions. It acknowledges the binding force of municipal laws, and its problem is to ascertain the principles on which such laws, as such, are binding between members of different states; and to determine which municipal law is, by those principles, to be applied in a particular case: Westlake, Priv. Int. Law, ch. 11. If a decedent, domiciled in one state, has left a will disposing of personalty at home, and realty situate in a foreign or sister state, questions may arise as to his capacity, the solemnities of the execution of the will, or the validity of its dispositions; and when such questions do arise (153)

VOL. XXXIV.-20

a problem of practical difficulty is presented: where and how are they to be determined? When, therefore, a set of facts has to be regulated in accordance with law, two questions of capital importance are at once presented for solution: First, what state has jurisdiction to apply the law? And, secondly, what law will it apply? The former of these questions is said to relate to the proper forum; the latter to the appropriate lex: Holland, Jurisprudence 305. We will now consider these in order.

SECT. II. THE PROPER FORUM.

A. CASES RELATING TO PERSONALTY.

As a general rule, the court of the domicile is the proper forum in which to raise questions in wills of personalty, even though the property be situate in another state: Gilman v. Gilman, 52 Me. 165. The court of the domicile, it is said, is the forum concursus to which the legatees under a will of a testator or the persons entitled to the distribution of an estate of an intestate are bound to resort: Enohin v. Wylie, 10 H. L. Cas. 1. The apparent violation of sovereignty implied in the action of one state assuming to reguate the disposition of property in another, is eliminated by the fiction mobilia sequuntur personam; by which, though the movables are in point of fact within the territory of a different state, yet in contemplation of law they are considered as having followed him to the place of his last domicile. The general rule is, however, subject to the limitation that, for certain purposes, the forum rei site may also take cognisance of the will; as, for example, to construe the will for the direction of ancillary administrators: Parsons v. Lyman, 20 N. Y. 103; or to try the validity of foreign bequests, where the title to the bequeathed property is claimed by a citizen of a foreign state: Burbank v. Payne, 17 La. Ann. 15. Upon the death of a person leaving property in two or more states or countries, his property in each is considered a separate succession for the purposes of administration, the payment of debts, and the decision of claims of parties asserting title to the property. So Lord KAMES: "In a legal view, a movable situated within a certain territory is subjected to the judge of that territory; and every action claiming the property or possession of it must be brought before that judge, as no other judge has authority over it:" Kames, Principles of Equity, B. 3, c. 8, sect. 3. We have, therefore, the fiction that the domicile draws to it the personal estate wherever it

may chance to be; but the fiction yields whenever, for the purposes of justice, the actual situs of the property should be examined: Green v. Van Buskirk, 7 Wall. 139.

B. CASES RElating to REALTY.

The exclusive right of the sovereign to command within its own territory, and the intimate relation which feudalism established between the sovereignty of the territory and the lordships of the soil, furnish the basis for the exclusive claim of the courts of the locus rei sita to entertain suits respecting the realty. The rights of the ownership of land receive the protection of the state where the land lies, and of no other; and the protection of these rights draws with it the just claim to regulate them. Moreover, no state, by its laws, can affect to regulate the rights respecting immovables in another state, since it cannot enforce its own decree without a violation of the foreign territorial sovereignty. These two grounds concur to sustain in reason the claim of the courts of the situs.

An incidental effect of this rule is, that it becomes necessary for an executor of a decedent, who has left land in two or more states, to take out letters in each state. For by taking out letters in one state, he becomes an officer of its courts, and as such, cannot sue (Morrell v. Dickey, 1 Johns. Ch. 153; Noonan v. Bradley, 9 Wall. 394), or be sued (Vaughan v. Northup, 15 Pet. 2; Caldwell v. Harding, 5 Blatch. 50), in another state without becoming an officer of its courts also.

There is, however, an exception to the general rule that the forum rei sita possesses exclusive jurisdiction when the judgment of a foreign court would act in personam, as e. g., in an action of specific performance against a foreign executor found within the jurisdiction. The process, in such case, would operate against him alone, and in no wise affect the foreign state: Massie v. Watts, 6 Cranch. 148.

SECT. III. THE APPROPRIATE LEX.

A. CASES RELATING TO PERSONALTY.

1. As to Testamentary Capacity.-The modern Roman law and the common law, divergent as they often are in questions of the conflict of laws, agree in the rule that the law of the actual domicile of the testator at the time of his death, governs on the point of his legal capacity to make a will: Savigny Pr. Int. Law 137; Schultz