tions the executive of the State has power to pardon." It is the same question as whether an offence is in a broad sense civil or criminal, - a wrong to the individual or a wrong to the State, according to Blackstone's classification. "The question whether a statute of one State, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another State, depends upon whether its purpose is to punish an offence against the public justice of the State, or to afford a private remedy to a person injured by the wrongful act." Therefore, though the statute in question, as it imposes a burdensome liability on the offenders, may be called penal in the sense that it is to be strictly construed, it is as to the creditor clearly remedial, relief being at his suit only, and limited to the damages suffered.

The Chief Justice dissents, holding the court has no jurisdiction, as it was for the Maryland court to determine whether the enforcement would involve the penal laws of another State; and State courts do not adjudicate the question of statutory delicts at their peril. No authorities on the point are quoted by the Chief Justice, and his short remarks can take off very little from the weight of the decision. The majority agree fully with the decision of the Privy Council, which they quote at length with approval, that the question of whether a statute is penal is not in any sense local, but one to be decided by the court where the remedy is sought. The Chief Justice goes on to say that full faith and credit were given to the judgment, since it was admitted in evidence. Here, too, he is content to let his statement stand on its own merits. But the provisions of the Constitution of the United States, as the court says, are to be read in the light of established principles; and, against the dissenting judge's bare statement that the Act of Congress was satisfied by merely treating the New York judgment as evidence, the majority opinion quotes many cases to show that, while there are certain limits to the effect to be given foreign judgments (they are not, for instance, on the footing of domestic judgments, and to be enforced by execution), yet, when duly pleaded and proved in the courts of another State, "they have the effect of being not merely prima facie evidence, but conclusive proof of the rights thereby adjudicated."

LEGITIMATED CHILDREN AS HEIRS AND DEVISEES. At last, in In re Gray's Trust, [1892] 3 Ch. 88, the English courts have advanced to the third, and probably their last, position in the long-disputed question of the rights, as heirs and devisees, of children illegitimate by the law of England, but legitimated by the law of the country which saw their birth.

The testator bequeathed a portion of his estate, real and personal, to the children of his son. His son, domiciled in the Cape of Good Hope, had a child by a woman out of wedlock. Subsequently he married the woman. By the Roman-Dutch law of the Cape, this child, although antenatus, was legitimated for all purposes by the subsequent marriage. In England, of course, a child antenatus is not legitimated by the subsequent marriage of its parents. The question arose as to the child's taking the realty. To take he must be legitimate. But legitimate by what laws?

The questions at one time were whether legitimacy was a personal incident, a quality of the status of the individual following the law of his domicile, and whether one country should recognize, by the comity of

Those are now settled

nations, the laws of another country as to status. in the affirmative, and are to-day not in conflict. The controversy to-day is, Shall the law require, in addition to legitimacy (a matter settled by the law of the domicile), the other element, that the person in question be legitimate in the certain way prescribed by the law of England?

There are four forms in which the question arises: (1) May such legitimate child take personalty under the description of "child" in a will? (2) May he take personalty as next of kin to an intestate? (3) May he take realty under the description of "child" in a will? (4) May he take realty as heir to an intestate? The first was settled in the affirmative by In re Andros, 24 Ch. Div. 637 (1883); the second in the affirmative by In re Goodman's Trusts, 17 Ch. Div. 266 (1881); and the fourth in the negative by Doe d. Birtwhistle v. Vardill (1839). The third is now decided in the affirmative, and is the principal case.

The principle of international law on which the first three rest is equally applicable to the fourth, and would prevail in that case were it not for the peculiar feudal quality of common law land, with its tenures and its heirship. That principle is, that those laws of a State which apply to the capacity and personal condition, that is, the status of its citizens, attach to and go with them, and will be recognized by foreign States. Legitimacy is a matter of

status.

In devises its application is simple. The will reads, "to children." The rules of construction of wills do not vary the terms, but simply say the legitimate children shall take. What children of a particular person are legitimate depends upon the law of his domicile.

If the case be one of intestacy, a distinction is to be taken between personalty and realty. Bearing in mind the different starting-points of the laws for the inheritance of realty and personalty, the reason for the difference appears. The heir to realty was one who should be upon the land, and bear its burdens as a feud, and take its profits. His connection with the land was very close. Personalty, however, by the administration of the ecclesiastical courts, was on intestacy, as well as in the case of a will, subjected to the rules of the civil law, with its idea of representation. The common law, moreover, looks upon goods and chattels as moving with the person. On his death intestate, the next of kin took, through the hands of the administrator. The connection of next of kin with the intestate was solely personal. Therefore the laws of status of his domicile declare which of his children are legitimate. While he who succeeds to realty, on the other hand, must not only be legitimate, but he must be legitimate sub modo, legitimate in a certain way; the way prescribed by the law of England.

Since there are these reasons for the negative answer to the fourth case, it seems very unlikely that this answer will be changed. Thus all four are at last settled, and satisfactorily, even if the fourth go upon a feudal reason.

RECENT CASES.

AGENCY LIABILITY FOR TORT FAILURE OF SERVANT TO COMPLY WITH STATUTE A statute of New York provides that any railroad engineer who fails to ring the bell or sound the whistle of his locomotive eighty rods before crossing a highway shall be guilty of a misdemeanor. Held, that a charge to the jury was erroneous which laid down as a rule of law that failure on the part of defendant's engineer to comply with the statute made the defendant liable to a plaintiff injured thereby. Vandewater v. N. Y & N. E. R. R. Co., 32 N. E. Rep. 636 (N. Y.).

The court say that as the statute imposed a duty on the servant only, his failure to comply did not per se make the master liable. It is submitted, however, that this is beside the mark. Failure to comply with the statute undoubtedly made the servant personally liable as for negligence; and the servant was at the time engaged upon his master's employment. The company was of course not liable as for its own negli gence, because no statutory duty was imposed on it; but it was liable, because responsible for the acts of its servant.

A

AGENCY- MISCONDUCT OF AGENT - Rights of THIRD PERSONS-NOTICE. principal in New York supplied his agent with large sums of money, which the agent in Maryland deposited with the defendant bank in his own name as agent. This money was properly used in making loans upon canned goods, of which he took storage receipts in his own name as agent, but which he pledged with the defendant for his personal benefit. Held, that the knowledge of the bank of the general relations between the principal and his agent, coupled with the use of the word "agent" on the receipts, was sufficient to put the bank upon inquiry, and that it was liable to the principal for the amount realized from the sale of the goods pledged. The agent also purchased goods with money received by sale of plaintiff's goods, and took storage receipts of the same in his name as agent, and obtained loans upon them for his personal benefit. Held, that as the agent had never intended the principal to have these goods, the title was never in the principal, and that the bank was not liable for the amounts advanced on them. Thurber v. Cecil National Bank, 52 Fed. Rep. 513 (C. Ct. Maryland). This decision appears to be correct on principle, although the reason for the second point is highly technical.

Where

BILLS AND NOTES - ANOMALOUS INDORSERS - EXTRINSIC EVIDENCE. a note was made by a corporation, and before delivery the directors signed their names on the back, adding the words "Board of Directors," - held, that between the original parties and any holder having notice of the circumstances, extrinsic evidence was admissible to show that it was the understanding of the parties that the directors by their indorsement incurred no personal liability, but merely bound the corporation. Kline v. Bank of Tescott, 31 Pac. Rep. 688 (Kansas).

For the authorities on this question, which are somewhat in conflict, see Daniel, Negotiable Instruments, § 418. The following are in accord with the principal case: 32 Md. 327; 4 Col. 90; 7 Hun, 367; 49 Mo. 314; 5 Wheat. 336; 66 Cal. 451. But see, contra, 17 Ohio St. 125; 9 N. Y. 571.

CONFLICT OF LAWS

- EXEMPTION OF DEBTOR PROPERTY IN ANOTHER STATE. Where a creditor and a debtor are residents of the same State, a court of equity of that State will restrain the creditor from proceeding in the court of another State to reach by garnishment credits due the debtor there, such credits being exempt from legal process by the laws of the first State, but not by the laws of the second State. Allen v. Buchanan, 11 So. Rep. 377 (Ala.).

It is usually held in this country that if a creditor is trying to evade the laws of his domicile he will be restrained, - - as where a debt is due his debtor from a corporation having an existence in both States. Keyser v. Rice, 47 Md. 203; Snook v. Swetzer, 25 Ohio St. 516. The doctrine is commonly stated broadly as in the principal case; but if the property were chattels having an actual situs in a foreign State, it is hard to see on what theory a court of equity could interfere. It would really be enforcing the exemption laws of its own State in a foreign State.

CONSTITUTIONAL LAW ESTATE BY CURTESY - ABOLITION BY LEGISLATURE. Held, (1) that under the Illinois Married Women's Act of 1861, which provided that the lands of married women and all the rents and profits thereof should remain their separate property, under their sole control, and not subject to the husband's control or liable for his debts, the estate of tenancy by the curtesy initiate became a mere expectancy, instead of being, as at common law, a vested estate. (2) Therefore the Dower

Act of 1874, which abolished the estate of curtesy, is constitutional as applied to those who, at the time of its passage, had only an estate by the curtesy initiate under the Act of 1861. McNeer v. McNeer, 32 N. E. Rep. 681 (Ill.).

The court treats this statutory curtesy initiate as analogous to dower, which it is well settled may be abolished by statute. Cooley, Const. Limit. (6th ed.) 441, and cases there cited.

CONSTITUTIONAL LAW. - POWER OF LEGISLATURE TO GRANT SOIL UNDER HARBOR.- By Act of 1869, the Legislature of Illinois granted in fee to the Illinois Central R. Co. the submerged lands, being the bed of Lake Michigan, for a mile from the shore between certain points, "Provided that nothing herein contained shall authorize obstructions to Chicago harbor or impair the public right of navigation, nor shall exempt grantee, its lessees or assigns, from any law regulating rates of wharfage in said harbor." The land thus granted comprised a large part of the harbor of Chicago. Held, that this was a grant which the Legislature had no power to make. The lands under navigable waters of the State belong to the State in trust for the public, and the Legislature is bound by this trust. Shiras, Gray, and Brown, JJ., dissented. Illinois Central R. R. Co. v. State of Illinois, 13 Sup. Ct. Rep. 110.

The court admits that small portions of lands under navigable waters may be granted to individuals for wharfage purposes, etc.; but it says that a grant of one thousand acres, as in this case, a grant which gives virtually the whole harbor of a great city, is beyond the power of any Legislature. The right of control over this harbor is of too vital importance to the people generally to be a subject of bargain and sale by the Legislature. The same principle is at the bottom of this decision as of those in which the Legislature is denied the power to grant away its right to protect the public health and morals.

CONTRACTS

CONSPIRACY

- ACTION TO RECOVER MONEY PAID ON AN ILLEGAL CONTRACT. At the trial it appeared upon the plaintiff's own case that the money sought to be recovered had been paid by him in pursuance of an agreement with one of the defendants, by which the latter was with the money to purchase upon the Stock Exchange a number of shares in a projected company, with the sole object of inducing the public to believe that there was a real market for the shares, and that they were at a real premium, whereas, in fact, as the plaintiff and defendants well knew, they were not. Held, that such an agreement was an illegal transaction, which might be made the subject of an indictment for conspiracy, and that this action, based on such an illegal contract, could not be maintained. Scott v. Brown, Dowing, McNab, & Co.; Slaughter & May v. Brown, Dowing, McNab, & Co., [1892] 2 Q. B. 724 (Eng.).

CONTRACT-PARENT AND CHILD-PRESUMPTION AS TO NATURE OF CHILD'S SERVICES. - In an action by a son against his mother's estate to recover for services rendered her by him while living with her after his majority,- held (three judges dissenting), that it was error to charge the jury that there was a presumption of law in favor of the services being gratuitous. Ulrich v. Ulrich, 32 N. E. Rep. 606 (N. Y.).

By presumption of law, both courts understood a presumption of mixed law and fact, an inference which the jury are by law obliged to make, but which is rebuttable. So far as it is possible to extract any definite rule from the books, this case seems to be against the trend of authority. It would seem: (1) that from the mere fact of benefit received by the parent, the law will never raise a quasi-contract -a promise implied in law to pay; nor (2) will the mere fact of benefit received be evidence of a contract implied in fact, - -an actual mutual understanding, though not formally expressed, that there shall be compensation; (3) it seems to be held in some courts (see Mosteller's Appeal, 30 Pa. St. 473) that even a contract implied in fact will not be sustained, and that there must be proof of an express contract; (4) where the child sets up an express contract, it would seem (though the language of the cases is vague) that he has not only to sustain the burden of establishing his case, but must meet an initial presumption against him. Whether this ought to go as far as a mixed presumption of fact and law,i. c., whether the principal case does not lay down the better rule, quare. See Schouler on Dom. Rel., §§ 269, 274.

CONTRACTS - PUBLIC POLICY. - AGREEMENT NOT TO CHARGE FRAUD. - An agreement contained in a building contract that the architect's certificates and awards shall be final and shall not be objected to for fraud, is binding, and cannot be overturned for fraud on the part of the architect, where it does not appear that the other party to the contract was colluding with him. Tullis v. Jacson, [1892] 3 Ch. 441 (Eng.). The court considers such a contract neither unfair nor against public policy, saying that men's right to make and enforce such contracts as they see fit ought not to be violated save for weighty reasons, and that the increasing stringency of building contracts

indicates the opinion of those conversant with the matter that it is better to run the risk of unfairness than of dispute.

CONTRACTS RESTRAINT OF TRADE LIMITATION AS TO TIME OR SPACE REASONABLENESS. Held, that where a covenant in restraint of trade is general, that is, without any qualification,- it is bad, as being unreasonable and contrary to public policy; but where it is subject to a qualification of either time or space, and so only partial, then the question is whether it is reasonable, and if reasonable, it is good in law. Held, accordingly, that a contract by the defendants with the plaintiff corporation, which carried on a business consisting of the manufacture and sale of dye products, with branches and agents throughout the world, that after leaving the plaintiff's employ as agents, the defendants would "not enter into any like or similar business, nor start a business of that kind themselves, nor give information of any kind about the business" for three years, was good, and enforceable in equity. Badische Anilin und Soda Fabrik v. Schott, Segner, & Co., [1892] 3 Ch. 447 (Eng.).

Compare Oliver v. Gilmore, infra, where a contract no broader than this between parties occupying a different relation to each other was held bad.

Contracts — RESTRAINT OF TRADE PUBLIC POLICY.-Held, that a contract between manufacturers, whereby the first party agrees, in consideration of a percentage on the sales made by the second party, not to use his plant for the production of strap and "T" hinges for five years, the contract to be void in case the second party increase his facilities for the production of such hinges, is void, as against public policy. Oliver v. Gilmore, 52 Fed. Rep. 562 (Mass.).

Compare the English case of Badische Anilin und Soda Fabrik v. Schott, Segner, & Co., supra, where an equally broad contract between parties occupying a different relation from the parties in this case was held good.

CORPORATIONS -DISCRIMINATING CONTRACTS - PUBLIC EMPLOYMENT. - Held, (1) That the passage by a corporation of a by-law forbidding its members from dealing with a certain person gives no right of relief to the latter, since contracts in restraint of trade are illegal only in the sense that the court will not enforce them. (2) That the fact that the business at certain stock-yards is so large that it exercises an influence over the business of the whole country does not justify the courts in declaring such business public, and in applying different rules to its conduct than are applied elsewhere in similar business. Am. Live Stock Com. Co. v. Chic. Live Stock Exchange, 32 N. E. Rep. 274 (Ill.).

On the second point the court distinguishes Munn v. Illinois, 94 U. S. 113, on the ground that in that case the question was whether the Legislature had power to declare a certain business to be of sufficient public importance to warrant the putting of it under public control. The court in the principal case say that this is a question of public policy which the Legislature, not the court, is to settle.

The case of N. Y. & Chic. Grain Exchange v. Board of Trade, 127 Ill. 153, is distinguished, on the ground that there the corporation had voluntarily assumed the performance of certain duties towards the public at large, and in so far the interests of the public could be protected.

CORPORATIONS- - NEGOTIABILITY OF STOCK CERTIFICATES INDORSED IN BLANK ESTOPPEL BY NEGLIGENCE. R bought stock certificates indorsed in blank, and placed them in his safety deposit box. W, who used the box in common with R, and had access to it, stole the stock and sold it to L, an innocent purchaser for value. Held, that certificates of stock were not negotiable instruments; that therefore the ordinary rule as to stolen property applied, and L took no title; and that under the circumstance, R's act in leaving the stock indorsed in blank was not so negligent as to raise an equity against him in behalf of L, who had suffered as a result of his act. Bangor Electric,&c. Co. et al. v. Robinson et al., 52 Fed. Rep. 520 (C. Ct. Mass.).

Daniel on Negotiable Instruments (4th ed.), §§ 1708, 1709, is cited with approval on the question of the non-negotiability of stolen certificates of stock indorsed in blank. There is very little authority in this country on this point.

CRIMINAL LAW-RIGHT OF ACCUSED TO CHALLENGE JURORS. In a capital case the judge directed that two lists of the panel of jurors should be made out and given to the respective parties, each of whom was required to challenge, without knowing what persons were challenged by the other side. On defendant's exception to this order, held, that it was reversible error, because in a capital case it is the defendant's right to be confronted with the panel of jurors, and to have all challenges made in his presence. Brewer, J., dissented, on the ground that there was nothing in the record to show that defendant was not present when the challenges were made. Lewis v. United States, 13 Sup. Ct. Rep. 136.