that the deed contained an agreement to reconvey, his failure to sue to reform the deed, held not barred by laches, though he delayed more than 13 years, where no rights of third parties intervened.-Rigell v. Gaskins, Ga., 82 S. E. 1057.

101. Remainders

Merger. The reversion and the life estate of the one on whose death the remainder was contingent, uniting in one person, would merge and destroy the remainder. Hill v. Hill, Ill., 106 N. E. 262.

102. Removal of Causes-Foreign Corporation. A state statute requiring a foreign corporation, as a condition of being permitted to enter or remain in the state, to stipulate that it will not exercise its constitutional right to remove suits to the federal courts or prosecute suits therein is invalid, and revocation of a corporation's license under such statute may be restrained.-Western Union Telegraph Co. v. Frear, U. S. D. C., 216 Fed. 199.

103. Notice.-Judicial Code, § 29, providing that written notice of intent to file a petition and bond for removal shall be given to the adverse party prior to filing the same, is mandatory and an unexcused failure to give such notice is ground for remand.-Arthur v. Maryland Casualty Co., U. S. D. C., 216 Fed. 386.

104. Sales Bill of Lading.-Buyer refusing to make payment on goods held to pass no title by transferring bill of lading to an innocent purchaser.-Orilla Lumber Co. v. Chicago, M. & P. S. Ry. Co., Wash., 143 Pac. 152.

105.- -Co-Warrantor.- Where a bank, at different times, took assignments of drafts with bills of lading attached for two different automobiles, sold by the same buyer to the same seller, the bank was a Co-warrantor in both trnsactions, and the amount received by it upon the second draft could be attached by the buyer in an action to recover for breach of warranty in the sale of the first car.-Mobile Auto Co. v. R. W. Sturges & Co., Miss., 66 So. 205.

106. Set-Off and Counterclaim-Breach of Contract. Where plaintiff's breach of earlier logging contracts necessitated defendant's paying an increased price to have the contracts completed, defendant is, in an action for sums due on the contract, entitled to set off his increased expenditure as a counterclaim.-Philadelphia Veneer & Lumber Co. v. Garrison, Ky., 169 S. W. 714.

Fraud

107. Specific Performance-Fraud. ulent representation by plaintiff's agent in negotiating for exchange of lands held to prevent specific performance, though defendant concealed from plaintiff the making of such representation by his agent, even assuming that such concealment constituted fraud.-Heitman v. Clancy, Iowa, 148 N. W. 1011.

108. Trusts-Equity.-Equity will not allow a trust to fail for lack of a trustee holding legal title.--Sherlock v. Thompson, Iowa, 148 N. W. 1035.

109. Ex Maleficio.-To establish a trust ex maleficio there must be an element of positive fraud. by means of which the legal title is wrongfully acquired; something more than a mere verbal promise.-Hunter v. Field, Ark., 169 S. W. 813.

110. Vendor and Purchaser Constructive Notice. Constructive notice furnished by a recorded instrument as to the boundary of the land and every other material fact recited therein is as conclusive as actual notice.-Loeb v. Conley, Ky., 169 S. W. 575.

111.- --Lien.-One who levies upon land belonging to his judgment debtor, which is shown by the deed to be incumbered by a lien for the purchase price, acquires only a lien inferior to the purchase-money lien.-Likens v. Pate, Ky., 169 S. W. 734.

112. Reliance on Representations.-Purchasers of a lot could rely upon representations of the seller's agent that the lot selected by them was the lot designated as lot 35 on a map, and the vendor could not show that the purchasers might have ascertained that such representations were untrue.-Taber v. Piedmont Heights Bldg. Co., Cal., 143 Pac. 319.

113.- Time of Essence.-Where time is not of the essence of a contract for the sale of land,

nonpayment of the purchase price at the time stipulated will not authorize a rescission or forfeiture.-Burkhalter v. Roach, Ga., 82 S. E.

1059.

114. Waters and Water Courses-Appropriation. A complaint in a suit by an upper user against lower riparian owners, alleging that they were using more water than they were entitled to, and failing to allege any specific wrong committed by defendants, held demurrable. Tracey Development Co. v. People, N.

Y., 106 N. E. 330.

115. Riparian Owner. Riparian owners are not entitled to take the waters of a stream in accordance with the acreage of their property, and no one of them can take so much water as to injure the rights of others.-Henderson v. Goforth, S. D., 148 N. W. 1045.

will

116. Wills-Construction.-A testator's held to contemplate that the proceeds of his life insurance should be used only to discharge his one-half of the purchase price of land which he and his stepmother had jointly bought, and hence the devisee of the stepmother is bound to pay her unpaid share of the purchase money. -Penick v. Tribble, Ky., 169 S. W. 607.

117. Destruction of.-Destruction

of will

by agreement of all parties in interest, held to vest in each of testatrix's children an undivided interest as an heir at law; and written contract to that effect was unnecessary.-Dueringer v. Klocke, 149 N. Y. Supp. 332.

118.- -Execution.-That a testator, in signing his name on one of the sheets of his will, omitted one letter of his first name did not affect the validity of the will, where it appeared that he intended to and did sign it.-Boone v. Boone, Ark., 169 S. W. 779.

119.- Fraud.-That the execution of a second will has been procured by fraud of the principal beneficiary, to the injury of a legatee under the first will, is ground for refusal to probate the second will.-Churchill v. Neal, Ga., 82 S. E. 1065.

120. Income.-Where testator bequeathed the residue of his estate, including certain stock, to a trustee to pay the income to his widow, and after her death to distribute the corpus among others, dividends declared during the life of the widow by the corporations constituted income and not capital.-Washington County Hospital Ass'n v. Hagerstown Trust Co., Md., 91 Atl. 877.

121. Lapse of Legacy.-Where the will manifests an intent, in making a gift of an aggregate sum to certain relations, to provide for them as a class, the designation of each individual by name or the use of words denoting equality, will not make the gift one of a separate interest which would lapse by death of the donee before that of the testator.-In re Ives' Estate, Mich., 148 N. W. 727.

122. Trust.-A will need use no particular words to create a trust, but it is enough that from all the language in it, a trust is fairly implied. In re Dewey's Estate, Utah, 143 Pac. 124.

123.- -Undue Influence.-Where testator virtually disinherited his wife so far as he could, the mere fact that certain relatives, one of whom received the bulk of his property under the will, had an opportunity to exercise undue influence did not authorize the finding that such influence was exercised.-In re Burke's Will, 149 N. Y. Supp. 142.

124. Witnesses-Redirect Examination.-In a prosecution for incest, where the defense, in cross-examining the prosecuting witness, attempted to show that her statement that the act occurred while the parties were stanc 'ng, and that conception was unreasonable, it vas proper for the state to show on redirect examination that defendant and witness had previously had intercourse on numerous occasions. -Vickers v. State, Tex., 169 S. W. 609.

125. Wife.-After termination of the marriage relation, one spouse is not incompetent to testify in a case in which the other is a party, as to independent facts, which are within the witness' knowledge and not privileged communications.-St. Louis & S. F. R. Co. v. Goode, Okla., 142 Pac. 1185.

Central Law Journal.

ST. LOUIS, MO., JANUARY 22, 1915.

FAITH AND CREDIT CLAUSE AS REGARDS STATUTES AND THEIR CONSTRUCTION.

In Western Life Indemnity Co. v. Rupp, 35 Sup. Ct. 37, the Supreme Court appears to lay down the rule that to secure the enforcement of a foreign statute, it may not be sufficient to plead and prove it as a fact, but also there should be pleaded and proved, as a fact, construction placed upon it by the enacting state.

In this case the Court of Appeals of Kentucky thought that the legislature of Illinois never intended an Illinois statute to have "an extraterritorial effect," and for this reason it was not regarded in case in Kentucky court. This disregard was claimed to be in violation of the faith and credit clause of the constitution, a mere inspection of the statute being appealed to as demonstrating that such was not its meaning.

Mr. Justice Pitney said: "It does not appear that the court's attention was called to any decision by the courts of Illinois placing a different construction, or, indeed, any construction upon the section in question. If such decision existed, it was incumbent upon defendant to plead and prove it as matter of fact. We are referred to no authoritative judicial construction of the statute in the state of its origin, nor have we searched for any, for what is matter of fact in the state court is matter of fact in this court upon review."

There are two or three things about this statement which would seem to call for special notice: (1) Naturally a court of the state of origin of a statute would not be called upon to rule that it had no extraterritorial operation. The question could not arise where its own courts were enforcing it as to a right claimed as arising in the state. If it were made the ground

of a judgment by a court in another state as operating extraterritorially, the judgment of that court ought to be protected under the faith and credit clause of the Constitution, whether as an original proposition its reasoning were opposed or not. Certainly, too, the foreign court's judgment would be respected, if extraterritorial effect were denied the statute, as the instant case shows.

(2) The pleader of a foreign statute is bound to plead both affirmatively and negatively, namely affirmatively that there is a foreign statute and negatively that no construction by a court of the state of origin has been placed on it. Or if it has been construed, he must aver and prove that no subsequent adjudication has displaced the construction that he exhibits as matter of fact to the court.

This reasoning cannot be met, WC think, by any claim that a statute is so plain and unambiguous that it speaks for itself. The rule, if one of law, could admit of no such exception, because it is after all merely a matter of private opinion that any statute is of this nature. It might, however, make search for adjudication, in order to establish the negative of which we speak, something like looking for a needle in a haystack.

But, is it not evident that proof of such a negative often would be attended. with the greatest of difficulty? And is it in fair compliance with the faith and

credit clause of the constitution that the statute of a state should not be given the meaning it bears upon its face, unless an objector shows it has been construed a particular way?

The idea of negative proof of non-construction by the court of origin of a statute ought also to embrace the idea. of no subsequent amendment or repeal thereof. In this way the value of the faith and credit clause could be frittered away by distinctions, multiplying difficulties in applying a rule of evidence, that was intended to be simple and clear.

Proof of a foreign law may be in several ways, one is by an authenticated copy of the law, and another is by testimony of reliable witnesses as to what it is. But all of it is in the past tense and practically it might be impossible really to bring it down to governing force as of a time in relation to a matter before a court. But in none of the cases we have read has the principle of what has been shown to exist continues to exist, until the contrary has been made to appear, not been recognized. And we think no principle is more wholesome than this one with respect to foreign law. A statute, therefore, exhibited as the law of a state should carry a presumption to a foreign court that it is the law thereof, according to the foreign court's construction thereof, unless an objector may show as matter of fact that it has been amended or repealed or construed otherwise. An authenticated statute offered in evidence ought, at least, to be deemed prima facie evidence that it is the law of another state or of a foreign country.

NOTES OF IMPORTANT DECISIONS

BANKRUPTCY SOLVENCY OF MEMBERS OF A PARTNERSHIP.-The question has been much debated in lower federal courts with the result of conflict of opinion, whether a partnership is a legal entity, which may be declared to be bankrupt, irrespective of the fact of the solvency or insolvency of the members thereof. But this conflict has been deemed to be settled in favor of the proposi tion that a partnership is not to be deemed bankrupt if its members or any of them are solvent, by Francis v. McNeal, 228 U. S. 695.

In Abbott v. Anderson, 106 N. E. 782, the Supreme Court of Illinois holds that where there was a composition by an alleged bankrupt partnership accepted by the creditors, upon theory by the court, that thereby the partners were released from the partnership indebtedness, nothing being said in the acceptance of the composition about membership liability, this released the members, though this theory was upon a mistaken view of the law. This holding was made in a case where objecting creditors to the composition, after

wards brought suit against a solvent partner of such partnership.

The opinion of the Illinois court shows the grounds of objection by these creditors in the bankruptcy proceeding on two points, (1) that the bankrupt court had no jurisdiction over assets of the individual partners, and (2) that the partners had not been adjudicated bankrupts. The district court and its referee took the view that the assets of the partnership could be regarded separately, and overruled the objection.

This, it is true, was a decision the court had authority to make, and its decision unappealed from would be the law of the case. But what did such a decision embrace? It only embraced the question of jurisdiction, and only, argumentatively, involved the question of release of the partners.

How would this be with the non-objecting creditors? Surely, it would be the case of the conferring of jurisdiction over subject-matterby consent, a something we have always understood not to be permissible. Why should an objecting creditor, merely objecting on jurisdictional grounds, be placed in worse plight than one who accepts benefits from a court without jurisdiction over the subject-matter? Should the former be penalized for his effort in trying to keep the court from committing error?

In this case it seems to us that the judgment of the district court should be deemed to involve nothing more than that it could proceed as it was proceeding.

PLEADING AND PRACTICE-DAMAGES UNDER FEDERAL OR STATE LAW IN MASTER AND SERVANT CASES.-The case of Ingle v. Southern Ry. Co., 83 S. E. 744, decided by North Carolina Supreme Court, is more important in what it assumes to be the law than in anything it really decides.

This was a suit by a servant's administrator against a railroad for death from injury suffered i the course of employment and assignment of error was predicated upon instructions upon the measure of damages as based on state law, rather than on federal law, the federal law being the federal employers' liability act.

Heretofore we have referred to decisions where petition was amended according to exigency of a case, as or not it showed an injury under state or federal law, and the Federal Supreme Court ruled that this could be done. Wabash R. Co. v. Hayes, 34 Sup. Ct. 729, 79 Cent. L. J. 37.

And more recently we have made the suggestion that state law should be made to

conform to federal law as to parties who should sue for death by servant in the course of duty. 80 Cent. L. J. 26.

The North Carolina court enforces strongly the importance of this suggestion, and goes further than the decision by the Supreme Court above instanced. It rules, in effect, that the legal representative of the servant of a railroad need not show by his petition whether he sues under state or federal law, but the case will be tried under the law which fits the facts.

The court considers the assignment and then discusses the proof to ascertain which law was applicable to the case, and, holding that it was insufficient to show that the injury from which death resulted occurred in interstate commerce the instructions of the court on the measure of damages was correct.

We desire to repeat our suggestion in 80 Cent. L. J. 26 as to entire correspondence between federal and state law, so that whether

the injury be in interstate comerce or under state law there will be no necessity whatever of courts in pleading or variety in instructions if there is question of fact as to which law the action comes under. We could well imagine there might have been submitted to the jury this question of fact before the court, though it was, in effect, held there need be no counts, such as spoken of in Wabash R. Co. v. Hayes, supra. Uniformity of law on this subject is, to our mind, fully as important as in any of the bills proposed by the Commissioners on Uniform State Laws.

The

NEGOTIABLE INSTRUMENTS LAW-REPEAL BY IMPLICATION OF PRIOR CONFLICTING LEGISLATION.-In 79 Cent. L. J. 331, we treated editorially, the question of repeal by implication, of prior statute in conflict with Negotiable Instruments Law. case there considered a decision by West Virginia Court of Appeals, in which a gambling statute made void a negotiable instrument in the hands of an innocent holder for value, where the debt it represented was for gambling. It was held there was no repeal.

The Supreme Court of Iowa makes the same holding as to a usury statute which provides that the note is void even in the hands of such a holder. Perry Savings Bank v. Fitzgerald, 149 N. W. 497.

The Iowa court describes the negotiable instruments law as "a comprehensive piece of legislation. It goes into detail in dealing with the subjects embraced by it. The scope of it deals with commercial paper, so as to protect purchasers of such against defenses available as between the original parties." Nev

ertheless, upon the principle of repeal by implication not being favored, it holds that the usury statute as regards such a holder has not been repealed.

We greatly regret, for the reasons stated in our editorial above alluded to, the disposition of one other court to treat an act intended to be construed uniformly in all the states, as if it were ordinary legislation. Uniformity being the keynote of legislative intention, all rules of construction should be made to bend thereto.

A SUCCINCT ANALYSIS OF THE CLAYTON ANTI-TRUST ACT.

Since the period known as that of the Reconstruction, our national commercial activity has developed by leaps and bounds. Railroads have been built, municipal communities established, deserts have been. made to blossom like the rose and national wealth has increased until to-day the United States stands in the forefront, both commercially and otherwise, as one of the world powers. With this increase of wealth and improved transportation facilities came the corporate form of capital investment and control, a convenient and necessary method of conducting large enterprises which has so rapidly grown in favor and familiarity that to-day the amount of corporate capitalization is no longer a matter of more than casual comment.. Gradually, however, there has developed along with this tremendous commercial prosperity and increased wealth an impression, more or less well founded, that this enormous development of corporate organization and the facility for combination which such organizations afforded, were likely to be used, and were in fact, in certain instances, being used to oppress individuals and injure the body politic. Thus came into being the "trust" question and the ever-increasing problem of how best to regulate and control this accumulated wealth and its power in such a manner as would best subserve the ultimate good and improve industrial conditions. In the halls of Congress, these

sentiments finally crystallized in the Sherman Anti-Trust Act of July 2, 1890, which was the first concrete legislation upon the subject.

Doubtless no single piece of legislation, either state or federal, has ever been more prolific of litigation than the Sherman Act. Lawyers, as a whole, should arise and call it blessed, for "it has filled the hungry with good things, and the rich it has sent empty away." The first federal statute of its kind, it has occupied the attention of the courts, both trial and appellate, in large measure almost from its very enactment. Two hundred and seventy written decisions are a mute but efficient testimony to the multitudinous legal questions embodied within its eight sections and involving its constitutionality and interpretation; and the end is not yet in sight, since the "rule of reason" announced by the United States Supreme Court in the recent Standard Oil case has opened wider the door for further inquiry and controversy as to what constitutes a "good trust or a bad one," and what is a “reasonable restraint of trade."

The Sherman Act made no attempt to define "commerce"; it related to interstate and foreign commerce only, and, in substance, declared every contract, combination in form of trust or otherwise, or conspiracy in restraint of trade, illegal, and provided a penalty for violations of said Act in the way of a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or both, in the discretion of the court. Not only so, but the courts, by a long line of decisions, beginning with United States v. Jellico Mountain Coal & Coke Co., 46 Fed. Rep 432, decided June 4, 1891, and ending with the decision of the United States Supreme Court in the Standard Oil Company case, decided May 15, 1911 (221 U. S. 63) uniformly held the act to apply to all contracts in restraint of trade, whether whether such restraint could be regarded as reasonable at common law or not. In the Standard Oil case, however, the United States Supreme

Court modified its prior rulings, by declaring that "The statute *** evidenced the intent not to restrain the right to make and enforce contracts, whether resulting from combination or otherwise, which did not unduly restrain interstate or foreign commerce, but to protect that commerce from being restrained by methods, whether old or new, which would constitute an interference that is an undue restraint." (Standard Oil Co. v. U. S., 221 U. S., 60). Thus, again, after more than twenty years' refusal so to hold, has the door been opened wide by the court of last resort, for legal inquiry as to what constitutes a "reason

able restraint of trade" and thus has arisen, Phoenix-like from the ashes of like contentions long denied, the "rule of reason" concerning which, both favorably and otherwise, so much has recently been said.

This brings us to a consideration of the present Clayton Act. It consists of twentysix sections, was approved October 15, 1914. and is not to be confused with the Federal Trade Commission Act, an entirely separate and distinct piece of Congressional legislation. The Clayton Act applies only to interstate commerce, and primarily deals with (1) unjust trade discriminations; (2) sales or leases conditioned upon exclusive handling by vendee or lessee of vendor's or lessor's goods, wares and merchandise; (3) the exemption of labor and labor unions from federal regulation and control; (4) corporate acquisition of capital stock of other corporations; (5) interlocking corporate directorates; (6) regulation of bids between corporations for materials and supplies; and (7) the issuance of injunctions and restraining orders in the observance and enforcement of the above matters:

As used in the Act, commerce is for the first time formally defined as trade or commerce among the states, territories, District of Columbia, foreign nations or insular possessions or other places under the jurisdiction of the United States, except the Philippine Islands.