tion for Deaf and Dumb v. Crockett, 36 N. Y. L. J. 1535 (N. Y., App. Div., Jan., 1907).

The Bankruptcy Act provides for the bankrupt's discharge from all provable debts with certain express exceptions. Since it is recognized that firm debts are provable against a bankrupt partner's estate, the conclusion that the above provision covers such obligations seems sound. Such is the weight of authority under both the Act of 1867 and that of 1898. Wilkins v. Davis, Fed. Cas. 17664; In re Diamond, 149 Fed. Rep. 407; but see In re Freund, 1 Am. B. Rep. 25. $5 h of the Act of 1898, providing for the management of the firm estate by the solvent partners, and § 16, providing that their liability on firm obligations shall not be affected by the individual bankrupt's discharge, clearly contemplate such a result. Many decisions, however, differ from the present in holding that there can be no discharge of firm debts unless they are specifically mentioned as such in the petition and discharge. In re Morrison, 127 Fed. Rep. 186; but cf. Jarecki Mfg. Co. v. McElwaine, 107 Fed. Rep. 249. The contention is also made that only where there are no firm assets will firm liabilities be discharged. See Curtis v. Woodward, 58 Wis. 499, 506. These distinctions, however, seem unsound, since they impose limitations for which the Act itself makes no provision.

DETERMINATION OF

BANKRUPTCY - JURISDICTION OF STATE COURTS TITLE TO PROPERTY IN POSSESSION OF TRUSTEE. A vendor of chattels rescinded the sale because of fraud, brought action in a state court to recover them, and attached the property on mesne process. The trustee appointed in subsequent bankruptcy proceedings against the buyer took possession of this property, and was made a party to the action in the state court. Judgment was there rendered for the vendor. His application to the court of bankruptcy for delivery of the goods was contested on the ground that the state court was without jurisdiction. Held, that the adjudication by the state court is conclusive. Linstroth Wagon Co. v. Ballew, 149 Fed. Rep. 960 (C. C. A., Fifth Circ.).

With certain express exceptions, it is the purpose of the Bankruptcy Act to leave the adjudication of all questions, except those which fall within the somewhat indefinite category of "proceedings in bankruptcy," to those courts in which actions by or against the bankrupt, were he a solvent person, could have been brought. Bardes v. Bank, 178 U. S. 524; see In re Abraham, 93 Fed. Rep. 767. This would seem to leave with the state courts jurisdiction of claims for goods, whether in possession of the trustee or of the bankrupt. But the Supreme Court has taken the view that property in possession of the trustee is in the custody of the bankruptcy court and that process of a state court is not effectual to recover it. White v. Schloerb, 178 U. S. 542. It follows that a claimant of such property can maintain in the state court trespass or trover, but not replevin, against the trustee. In re Russell, 41 C. C. A. 323; see Crosby v. Spear, 98 Me. 542; contra, Cooke v. Scovel, 68 N. J. L. 484. In this case, however, as the state court, by attaching the goods before the bankruptcy proceedings, obtained custody prior to the bankruptcy court, its jurisdiction over the action is unquestionable.

BANKRUPTCY - PARTIES IN INTEREST.. Two debtors of the bankrupt filed objections to the allowance of certain claims, alleging that their position would be prejudiced by the allowance. Held, that the petitioners, not having an interest in the res, are not parties in interest and have no standing in court. In re Sully, 36 N. Y. L. J. 1971 (C. C. A., Second Circ., Feb., 1907).

Under § 57 d of the Bankruptcy Act claims are allowed unless, among other things, objections are made by "parties in interest." This phrase is also used to designate who may apply to set aside a composition, to object to a discharge, or to revoke a discharge. A creditor who has been scheduled as such, though he has not proved his claim, is within the meaning of the term in order to oppose a discharge. In re Frice, 96 Fed. Rep. 611. And he has been given this right even when proof of his claim has been barred by the expiration of the time allowed by the Act. In re Bimberg, 121 Fed. Rep. 942. But the present case seems correct in restricting petitions to oppose the allowance of claims to those

Such

who have a direct interest in the administration of the bankrupt's estate. restriction must have been intended by Congress, since to allow interference by any one incidentally affected, as in this case, would lead to almost unlimited complication and delay in the adjustment of all bankruptcy proceedings.

BANKRUPTCY RIGHTS AND DUTIES OF BANKRUPT — PERJURY IN EXAMINATION. The defendant swore falsely in an examination before a referee in bankruptcy. He was indicted under § 29 b (2) of the Bankruptcy Act, which makes it an offense punishable by imprisonment to make a false oath "in relation to any proceeding in bankruptcy.' The defendant pleaded the provision of § 7a (9), that "no testimony given by him [the bankrupt] shall be offered in evidence against him in any criminal proceeding." Held, that the testimony in which the perjury occurred is admissible. Edelstein v. United States, 149 Fed. Rep. 636 (C. C. A., Eighth Circ.).

It is a rule of statutory construction that general terms may be limited to accord with the plain intent of the legislature or to harmonize with other parts of the statute. Kennedy v. Gies, 25 Mich. 83. Perjury by a bankrupt in his examination is held by the weight of authority to be a punishable offense within § 29 for the purpose of barring a discharge, although dicta intimate that there could be no conviction or punishment of the offense because of the inadmissibility of the testimony. In re Gaylord, 112 Fed. Rep. 668; contra, In re Mark, 102 Fed. Rep. 676. The literal construction of the immunity clause would interpret the Act as preventing by one section the punishment of an offense created by another section. Since that construction fails to harmonize these provisions of the Act and violates the plain intent of the legislature not to place a premium on perjury, the construction of the present court seems sound in limiting the immunity clause to offenses disclosed by the testimony. Contra, United States v. Simon, 146 Fed. Rep. 89.

BILLS AND NOTES - PAYMENT AND DISCHARGE REMEDIES ON LOST INSTRUMENT. The defendant, a holder for value of a promissory note indorsed by the plaintiff, the payee, lost it. At maturity, without tendering a bond of indemnity, he demanded payment of the maker, who refused to pay. Thereupon the plaintiff, with knowledge of the facts, paid the defendant. The maker became insolvent, and the plaintiff sued for damages. Held, that he cannot recover. Rogers v. Detroit Savings Bank, 110 N. W. Rep. 74 (Mich.). See NOTES, p. 566.

CARRIERS STREET RAILWAYS CONTINUOUS TRANSPORTATION IN ONE CAR. The plaintiff boarded the defendant's street-car at a time when the motorman knew that, because of a disarranged schedule, his car would not complete the trip indicated by its sign; but no notice of this was given the plaintiff. The plaintiff refused to transfer to a car ahead, and sued the defendant for failing to carry him to his destination in the original car. Held, that he can recover. Burrow v. Norfolk Ry. & Light Co., 12 Va. L. Reg. 763 (Va., Corp. Ct. Norfolk, Feb., 1907).

This case raises one of the numerous problems in the law of carriers where, in order to determine what regulation is reasonable, the convenience of the company and of the entire public must be considered as well as the convenience of the plaintiff. Cf. Faber v. Railway Co., 62 Minn. 433. In the only other case found bearing on this particular point the company was held not liable. O'Connor v. Halifax Tramway Co., 37 Can. Sup. Ct. 523. But there some notice had been given that the car would not complete the trip indicated by its sign, and the circumstances were otherwise exceptional. The argument advanced in the present decision, that notice of the intended change must be given to passengers boarding the car, seems rather unreasonable. Of course, passengers compelled to change have a remedy for any failure to provide proper seating facilities in the cars to which they are transferred. Louisville, etc., R. R. Co. v. Patterson, 69 Miss. 421; see Camden, etc., R. R. Co. v. Hoosey, 99 Pa. St. 492, 497. A statute or city ordinance may impose a penalty for putting passengers to the inconvenience of changing unless it is unavoidable. Such an

ordinance has been held reasonable. City of New York v. Interurban St. Ry. Co., 43 N. Y. Misc. 29.

CONFLICT OF LAWS-EFFECT AND PERFORMANCE OF CONTRACTS CONTRACT TO PERFORM TO SATISFACTION OF OTHER PARTY IN ANOTHER STATE. The plaintiff, by his New York agent, made a written contract in Illinois to install machinery in Iowa. The contract provided that payment should not be required until the machinery was "to the full satisfaction" of the defendant in certain regards. By the law of New York and of Illinois the promisee's dissatisfaction in such case must be reasonable; by that of Iowa it need only be honest. The plaintiff sued for the price in Iowa. Held, that evidence is inadmissible to show the New York-Illinois meaning. Inman Mfg. Co. v. American Cereal Co., 110 N. W. Rep. 287 (Ia.). See NOTES, p. 558.

CONFLICT OF LAWS - LEGITIMACY AND ADOPTION - LEGITIMATION SUBsequent to BIRTH. —A New York man deserted his wife and purported to marry a New Jersey woman, who bore him two children. Thereafter he became domiciled with his family in Michigan, obtained a divorce there from his New York wife without personal service and by default, and went through a second marriage ceremony with the New Jersey woman. This divorce and remarriage a New York court by decree refused to recognize. By Michigan law illegitimate children become legitimate by the subsequent marriage of their parents. The children claimed New York realty under a devise as the lawful issue of their father. Held, that they take. Olmsted v. Olmsted, 36 N. Y. L. J. 2073 (N. Y., App. Div., March, 1907).

This reverses the decision of the lower court, criticized in 20 HARV. L. REV. 400.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - ADMINISTRATION OF ESTATE OF LIVING PERSON. A wife, whose husband had not been heard from for eight years, petitioned to have his will admitted to probate under a statute which declared that a person should be presumed dead at the termination of seven years from the time when such person was last heard from. Held, that the will be admitted to probate. In re Sternkopf, 65 Atl. Rep. 177 (N. J., Prerogative Ct.).

See, for a discussion of the principles involved, 19 HARV. L. REV. 535. CORPORATIONS - DIRECTORS - LIABILITY OF CORPORATION FOR EXPENSE of Notices of Meeting of ShareholdeRS. The directors of a corporation, for the purpose of calling a meeting of the shareholders to consider a dispute existing between the directors and the president, published through the plaintiff four advertisements in newspapers. The first was simply a notice of the meeting; the second urged the shareholders to execute and return in favor of the directors proxies previously sent out; the third and fourth stated the history and merits of the dispute. The plaintiff sued the corporation for its services. Held, that there can be recovery only for publishing the first notice. Lawyers' Advertising Co. v. Consolidated Ry., etc., Co., 36 N. Y. L. J. 2023 (N. Y., Ct. App., Dec. 19, 1907).

For a discussion of the principles involved, see 20 HARV. L. REV. 328.

CORPORATIONS FOREIGN CORPORATIONS - IMPLIED CONSENT TO SERVICE UPON STATE OFFICIAL. An insurance company issued a policy in Indiana, running to a citizen of Pennsylvania as beneficiary, on which a judgment was obtained in Pennsylvania by service on the company through the state insurance commissioner, under a statute providing that no foreign insurance company should do business within the state until it had filed with the commissioner an agreement to accept service through him. The company had never filed such a stipulation, but it had transacted business in Pennsylvania. Held, that the judgment is void, as consent to service will not be implied here. Old Wayne Mutual Life Ass'n v. McDonough, 204 U. S. 8.

Statutes of many states now provide that foreign corporations doing business within the state must appoint some state official or other person to accept ser

vice for them. It is the doctrine of the federal courts that a corporation actually doing business within a state, without complying with such provision, may nevertheless be validly served in accordance with the requisition of the statute. Conn. Mutual Life Ins. Co. v. Spratley, 172 U. S. 602; but cf. Rothrock v. Dwelling House Ins. Co., 161 Mass. 423. But courts are strongly inclined to construe such statutes as limited to litigation concerning business done within the state. Bawknight v. Ins. Co., 55 Ga. 194. However, the United States Supreme Court, in a case where a corporation had done business within the state, took jurisdiction, although the cause of action arose outside the state, and intimated that a state might by statute provide for such jurisdiction. Barrow Steamship Co. v. Kane, 170 U. S. 100. Although, if the present decision involves merely a construction of the statute, it raises no new question, yet the reasoning of the court suggests that even if the statute expressly included causes of action arising outside the state, the doctrine of implied consent to service would not be applied.

CORPORATIONS STOCKHOLDERS' INDIVIDUAL LIABILITY TO CREDITORS LIABILITY FOR STOCK ISSUED FOR OVERVALUED PROPERTY. - The defendants, owning a brick plant worth $36,000, sold it to a corporation for $75,000 in paid-up stock, honestly believing it worth that much. The corporation became insolvent, and its trustee brought suit on behalf of creditors for additional payment on the stock so issued. Held, that the defendants need not pay. Hemenway v. Honolulu Clay Co., [1907] Haw. 187.

For a discussion adverse to this holding, see 19 HARV. L. REV. 366.

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CORPORATIONS ULTRA VIRES EFFECT OF BEQUEST AND DEVISE TO CORPORATION IN EXCESS OF CHARTER LIMITATIONS. The defendant corporation, the residuary devisee and legatee of S, was authorized by law to hold realty and personalty to an amount not exceeding $1,500,000. The residuary devise and bequest amounted to $3,000,000. After the death of S, the legislature passed an act increasing the amount of realty and personalty which the defendant might hold to $5,000,000. The heirs and next of kin of S claimed the property so devised and bequeathed by him. Held, that the defendant is entitled to hold against all the world, the state having waived any rights it might have had. Hubbard v. Worcester Art Museum, 80 N. E. Rep. 490 (Mass.). See NOTES, p. 561.

CRIMINAL LAW — APPEAL — CONVICTION ON MERITS UNder Defective INDICTMENT. - The defendant was indicted for adultery in the Philippine Islands, where he was entitled to be informed of the nature of the crime charged and to due process of law as provided in the Constitution of the United States. Every element of the crime was proved at the trial, but the indictment omitted one essential averment. Having failed to object to the defect before judgment, the defendant raised the point on appeal, but the judgment was affirmed. Held, that the defendants' rights have not been infringed. One justice dissented. Serra v. Mortiga, U. S. Sup. Ct., Feb. 25, 1907.

The court relies on a former decision where it was held, on the ground of double jeopardy, that an acquittal on the merits was a bar to a second trial, even though the indictment was fatally defective. United States v. Ball, 163 U. S. 662. That doctrine seems sound, although contrary to generally estab lished law. See 10 HARV. L. REV. 243. But there the defect was overlooked in order to protect the constitutional right of exemption from double jeopardy; a similar disregard for irregularity in the present case tends to deprive the defendant of constitutional rights. However, since the entire crime was proved, the defendant has had substantial justice, and it would seem that he was properly held to have waived his right to object. But if the crime involved punishment by death, the interest of the state in the life of a citizen would prevent a waiver from being effective even though it had been express. Hopt v. Utah, 110 U. S. 574. A few cases have been found in accord with the present. Eaves v. State, 113 Ga. 749; see People v. Moran, 43 N. Y. App. Div. 155; aff. 161 N. Y. 657. But the general view has been to the contrary. Com. v. Doyle, 110 Mass. 103.

Later M

Deeds EXCEPTIONS AND RESERVATIONS EXCEPTION OF LAND IN WHICH EASEMENT PREVIOUSLY GRANTed. M granted a strip of land to a railway, by a deed which the court construed to give only an easement. conveyed the tract to the plaintiff's grantor, "excepting a strip of land heretofore deeded to the railway... now occupied by the... road." successor of the railway ceased, for eleven years, to use the land. The plaintiff claimed the fee. Held, that the fee was excepted, so that the plaintiff has no title. Spencer v. Wabash Railway Co., 109 N. W. Rep. 453 (Ïa.).

A

The court's construction that M, by the language used, excepted a fee from her grant is supported by authority. Munn v. Worrall, 53 N. Y. 44; Reynolds v. Gaertner, 117 Mich. 532. However, there is much weight in the view of the dissenting judges that there was a conveyance of the entire interest and that the exception, in effect, operated only as a limitation upon the covenants of warranty. Gould v. Howe, 131 Ill. 490. It seems improbable that M intended to retain so small an interest in the land; and, where reasonable, the minority's construction would generally be highly desirable, since a separate ownership of such strips decreases their usefulness and is productive of litigation. Granting that a fee was excepted, the case seems opposed to an earlier Iowa decision, which it did not purport to overrule, holding that when an easement is abandoned by a railway, the land belongs to the present owners of the tract of which it had been a part, although it had never been conveyed to them. Smith v. Howe, 103 Ia. 95; see Iowa CODE 1897, § 2015.

ELECTIONS WHETHER VOTING BY BALLOT MEANS By Secret BALLOT.— The state constitution provided for voting by ballot. A statute required all ballots to be numbered for purposes of identification in case of a contested election. Held, that the statute is constitutional. Ex parte Owens, 42 So. Rep. 676 (Ala.).

It is undoubtedly true that the element of secrecy in voting by ballot is the feature of the system which caused its widespread adoption. As a matter of definition, however, it can hardly be said that a ballot has ever been considered to lose its character entirely, merely because the identity of the voter could be subsequently disclosed. See I Bouv. L. DICT. 216. The word as used in a constitution, therefore, does not necessarily imply absolute secrecy, and without such implication the statute in question is valid. See People v. Fisher, 24 Wend. (N. Y.) 215. The fact that the effect of a statute seems contrary to the intent of the framers of the constitution or to public policy should not of itself make the act unconstitutional. State v. McLelland, 138 Índ. 395. It is believed that the failure to recognize this last principle accounts for the view contrary to that of the present case, which is taken in the only other cases found which raise this exact point. Williams v. Stein, 38 Ind. 89; Brisbin v. Cleary, 26 Minn. 107.

EMINENT DOMAIN COMPENSATION CLAIM IN Respect of PoSSESSORY TITLE. Land occupied by a trespasser as his own for ten years was taken by the crown under a resumption statute. No valuation was made nor compensation given. When the period of limitation after the trespasser's entry had elapsed and the true owner had not appeared, the executors of the trespasser demanded that the proper officer value the land. He refused on the ground that the executors could have no claim for compensation. Held, that mandamus issue to compel the valuation. Perry v. Clissold, [1907] A. C. 73. See NOTES, p. 563.

EMINENT DOMAIN RIGHT TO ABANDON PROCEEdings. A railway company instituted proceedings to condemn land, and after the damages had been assessed and the judgment entered attempted to abandon the project. Held, that the company cannot withdraw. Union Ry. Co. v. Standard Wheel Co., 149 Fed. Rep. 698 (C. C. A., Sixth Circ.).

It is held by the weight of authority, contrary to the present case, that after the entry of judgment the condemnor ordinarily may withdraw. City of Chicago v. Barbian, 80 Ill. 482. The reason is that the condemnor should be allowed to ascertain the expense of the project before finally deciding to proceed. O'Neil v.