filing of the suit until the judgment is paid. (1913 ARIZONA CIVIL CODE, par. 3161.) Two recent cases have dealt with the constitutionality of the section, which applies only to persons injured in the pursuit of dangerous occupations. In the earlier case, suit was brought in the federal District Court for Arizona, and the plaintiff recovered. Upon appeal, the judgment having been affirmed, the plaintiff moved to have the statutory amount of interest added to the judgment. The defendant contested the motion on the ground that the statute violated the Fourteenth Amendment of the federal Constitution. Held, that the statute is not unconstitutional. Motion allowed. Twohy Brothers Company v. Kennedy, 295 Fed. 462 (9th Circ.). Two months later, the Supreme Court of Arizona, upon essentially the same facts, refused to allow a similar motion. Held, that the statute is unconstitutional. Arizona Eastern Ry. Co. v. Head, 224 Pac. 1057 (Ariz.). The imposition of a penalty to induce the prompt adjustment of certain classes of claims has long been recognized as a legitimate use of legislative power. The classification must not be arbitrary or it will violate the equality clause of the Fourteenth Amendment. Gulf, Colorado, & S. F. Ry. v. Ellis, 165 U. S. 150. If, however, the classification is made upon the basis of some special public interest, and affects without discrimination all those who may infringe that interest, it has been held that no denial of the equal protection of the laws results. Atchison, T. & S. F. R. R. v. Matthews, 174 U. S. 96; St. Louis, I. M., & S. Ry. Co. v. Paul, 173 U. S. 404; Fidelity Mutual Life Ass'n v. Mettler, 185 U. S. 308. See Atchison, T. & S. F. R. R. v. Vosburg, 238 U. S. 56. See COLLINS, The FourteenTH AMENDMENT AND THE STATES, 120. In the principal case the classification imposes an unusual liability on employers of workmen in dangerous occupations, in whose protection there is an obvious public interest. The fact that the employee has an election among several remedies, and that in the case of one only does the statute in question give the penalty for frivolous appeal, should not be sufficient to make the provision unconstitutional. See Arizona Employers' Liability Cases, 250 U. S. 400, 434. The statute does, however, operate unequally as between the plaintiff and defendant. the event of unsuccessful appeal by the latter, the statutory penalty is applied; whereas no provision is made for penalizing such appeals by the plaintiff. Atchison T. & S. F. R. R. v. Vosburg, supra. Statutes penalizing appeals of a frivolous nature are well known; but a provision for the treatment of all unsuccessful appeals as if they were frivolous seems objectionable. To allow some discretion to the appellate court in this matter would make the constitutionality of the statute much surer. See St. Louis, I. M., & S. Ry. Co. v. Wynne, 224 U. S. 354. Cf. Kansas City So. Ry. Co. v. Anderson, 233 U. S. 325.

In

CONSTITUTIONAL LAW-JURISDICTION OVER NON-RESIDENTS SERVICE UPON STATE OFFICIAL. A Massachusetts statute (MASS. GEN. LAws, c. 90, as amended by 1923 MASS. STAT., C. 431, § 2) provided that "the operation by a non-resident of a motor vehicle on a public way in the commonwealth, .. shall be deemed equivalent to an appointment by such non-resident of the registrar (of motor vehicles) or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him, growing out of any accident or collision in which said non-resident may be involved while operating a motor vehicle on such a way, and said . . operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally." Provision was also made for sending a copy of the process to the defendant by

registered mail. The plaintiff, a citizen of Massachusetts, sought to recover for injuries suffered by him by reason of the alleged negligence of the defendant, a citizen of Pennsylvania, while operating his automobile in Massachusetts. Service of a precept was made upon the registrar and a copy sent to the defendant by registered mail in full compliance with the statute. The defendant's motion to dismiss, on the ground that the statute was an unconstitutional attempt to enlarge the jurisdiction of the court, was denied. The defendant appealed. Held, that the statute is constitutional and that the order denying the motion to dismiss be affirmed. Pawloski v. Hess, Massachusetts Supreme Judicial Court, Sept. 20, 1924.

For a court to adjudicate all causes brought before it would obviously be unreasonable. Accordingly, limitations upon its authority so to act have developed. When acting within these limitations, a court is said to have jurisdiction, i.e., it has the legal capacity to subject persons or property to its judgments and decrees. It is submitted that the extent of its jurisdiction is determined ultimately by considerations of fairness and expediency. Among these may be suggested (1) notice to the defendant, (2) feasibility of defense, (3) a practicable division of causes among the courts, and (4) a public interest in assuming jurisdiction. Judged by these criteria, the decision in the present case would seem wholly proper. See Kane v. New Jersey, 242 U. S. 160. Certain situations in which a court has jurisdiction to render judgment in personam have become firmly established, viz., where the party defendant is (1) domiciled or (2) present within the state or (3) has consented to the court's jurisdiction. See Pennoyer v. Neff, 95 Ú. S. 714. However, an extension of the traditional limits of personal jurisdiction is apparent in recent decisions. (1) Under statutes, consent to jurisdiction has been implied, as to foreign corporations, from the conduct of business within the jurisdiction, in cases where such consent was patently a fiction. Conn. Mutual Life Ins. Co. v. Spratley, 172 U. S. 602. See Smolik v. Phila. & Reading Coal & Iron Co., 222 Fed. 148, 151 (S. D. N. Y.). (2) A foreign corporation has been held present within a state so as to confer jurisdiction although a corporation exists only in the state of its incorporation. St. Louis Southwestern Ry. Co. of Texas v. Alexander, 227 U. S. 218. Jurisdiction so obtained is limited to causes of action arising within the state. Simon v. Southern Ry. Co., 236 U. S. 115; Old Wayne Life Ass'n v. McDonough, 204 U. S. 8. Cf. Missouri, K. & T. Ry. Co. v. Reynolds, 255 U. S. 565; s.C., 224 Mass. 379, 112 N. E. 859; S.C., 228 Mass. 584, 113 N. E. 413. Where, therefore, a foreign corporation does business within a state, its courts will adjudicate causes arising out of such business, although the corporation is not actually present and does not actually consent to such jurisdiction. To the reasonableness of such an extension, under appropriate statutes, whether in the case of doing business or motoring within the state, be it by foreign corporations or non-resident natural persons, exception cannot be taken. See Austin W. Scott, "Business Jurisdiction over Nonresidents," 32 HARV. L. Rev. 871. Certainly the protection thus afforded against unscrupulous or negligent non-residents outweighs the inconvenience suffered by some defendants. But in conflict with this view stands a decision of the Supreme Court declaring void for want of "due process jurisdiction over non-resident natural persons doing business within a state, obtained by service upon their agent. Flexner v. Farson, 248 U. S. 289. It is submitted that this holding is out of harmony with the trend of recent decisions.

CORPORATIONS-FULL PAYMENT OF SHARES - POWER OF RECEIVER TO COLLECT UNPAID SUBSCRIPTIONS. This was an action in equity by the

receiver of an insolvent corporation to compel the holders of unpaid capital stock to pay the balance of their subscriptions. The action was brought after all the corporate debts had been paid, solely for the purpose of equalizing the loss between the paid-up and the unpaid subscribers. From a judgment sustaining the defendant's demurrer to the bill, the petitioner appeals. Held, that the receiver cannot maintain this action for this purpose. Judgment affirmed. Wilcoxen v. Anderson, 197 N. W. 1009 (Ia.).

A receiver is an indifferent third person appointed to act as agent of the court to hold the assets of the corporation for the benefit of those entitled to them. Primarily this means the creditors. See HIGH, RECEIVERS, 4 ed., §1. He has power to sue stockholders for the balance of unpaid subscriptions to pay corporate debts. Sanger v. Upton, 91 U. S.,56; Myers v. Sturges, 123 App. Div. 470, 108 N. Y. Supp. 528. See SMITH, RECEIVERSHIPS, 2 ed., § 236(a). The suit may be at law or in equity. Dill v. Ebey, 27 Okla. 584, 112 Pac. 973. Contra, Smith v. Johnson, 57 Ohio St. 486, 49 N. E. 693. And he must allege that the other assets of the corporation are insufficient to meet its liabilities. Kirkpatrick v. American etc. Co., 135 Fed. 230 (D. N. J.); Rea v. Eslick, 87 Wash. 125, 151 Pac. 256. See Potts v. Wallace, 146 U. S. 689, 700, 701. The Iowa court was presented with a novel situation which it met by limiting the powers of a receiver strictly to action taken solely for the benefit of the creditors. The subsequent remedy for the stockholders is to have the receivership discharged, and the corporation restored to its directors to collect the subscriptions and distribute the proceeds pro rata. A contrary decision would have reached the same result in a simpler way. The receiver may well act for the stockholders as well as the creditors. See SMITH, RECEIVERSHIPS, 2 ed., § 231; HIGH, RECEIVERS, 4 ed., § 314. The equity court, having already dealt with a great portion of the matter, could well extend its jurisdiction to settle the whole affair. See POMEROY, EQUITY JURISDICTION, 4 ed., §§ 231-242.

CORPORATIONS TAXATION-WHAT CONSTITUTES "DOING BUSINESS." -The Chile Exploration Company, a New Jersey corporation owning mines. in Chile, was unable to finance operations there, because of a provision of the law of that republic forbidding the sale of mining property for debt. The plaintiff corporation was organized under the laws of Delaware to hold the capital stock of the Exploration Company and to pledge it to secure bond issues, the proceeds of which would enable the Exploration Company to carry on operations. The plaintiff corporation engaged in no activities other than receiving and distributing dividends of the Exploration Company, and investing surplus funds on occasion in call loans. This is an action to recover taxes paid by the plaintiff corporation under protest, under the Revenue Act of 1916, tit. 4, §§ 407-409 (39 STAT. AT L., §§ 756, 789), which provides that the tax is not to be imposed on a corporation not engaged in business during the preceding tax year. Held, that the plaintiff was not engaged in business within the meaning of the statute. Chile Copper Co. v. Edwards, 294 Fed. 581 (S. D. N. Y.).

Where one corporation leases to another the means of carrying on its normal operations, the former company completely surrendering all control of the leased business, it has been held that the lessor is not engaged in "business" within the meaning of a statute like that in the principal case. Zonne v. Minneapolis Syndicate, 220 U. S. 187; McCoach v. Minehill Ry., 228 U. S. 295. The lessor corporation may continue to maintain offices and to collect and distribute dividends. McCoach v. Minehill Ry., supra. It may issue bonds to finance the lessee. Public Service Ry. Co. v. Herold, 229 Fed. 902 (3d Circ.). It may exercise its right of eminent domain for the

benefit of the lessee. Lewellyn v. Pittsburg, B. & L. E. R. R., 222 Fed. 177 (3d Circ.); N. Y. Central R. R. v. Gill, 219 Fed. 184 (1st Circ.). Further activities will bring the lessor within the operation of the statute. The line seems to be drawn between complete non-interference in the operation of the leased business on the one hand, and any activities tending to control the leased company on the other. Flint v. Stone Tracy Co., 220 U. S. 107, 170; Von Baumbach v. Sargent Land Co., 242 U. S. 50. The somewhat analogous cases dealing with the question whether the operations of foreign corporations within a state amount to " doing business throw some light on the scope of the term "business," although a somewhat narrower meaning is given to the word than in the taxation cases. See Macario v. Alaska Gastineau Mining Company, 96 Wash. 458, 165 Pac. 73; People v. Horn_Silver Mining Company, 105 N. Y. 76, 11 N. E. 155. See 5 THOMPSON, CORPORATIONS, 2 ed., § 6674 et seq.; 8 ibid., § 6674 et seq.; 3 Cook, CORPORATIONS, 8 ed., §§ 696-700; BEALE, FOREIGN CORPORATIONS, SS 205-210. The extension of the doctrine of the lease cases to the case of a holding corporation, in effect a bare trustee, seems sound, for in the principal case taxation of the plaintiff corporation, a mere pawnbroking convenience for the Exploration Company, would inevitably result in double taxation of the business of the latter.

CRIMINAL LAW - JURISDICTION

NECESSITY OF A LAWFUL ARREST.The prisoners were arrested without a warrant. Upon arraignment they objected to the magistrate's jurisdiction, on the ground that the arrest was illegal, but were convicted. They appealed. Held, that the magistrate had jurisdiction, the illegality of the arrest being immaterial. Affirmed. Rex v. Iaci, [1924] 3 D. L. R. 321.

The prisoner was arrested without a warrant, though a valid warrant was in the hands of another officer. He objected at the trial that, as he had been arrested illegally, the magistrate had no jurisdiction. He appealed from a conviction. Held, that the arrest was illegal, and that therefore the magistrate had no jurisdiction over the prisoner. Reversed. Rex v. Linder, [1924] 3 D. L. R. 505.

It has been held that a lawful arrest under valid process is essential to the jurisdiction of a criminal court. Rex v. Suchaki, [1924] 1 D. L. R. 971; Re Baptiste Paul, 7 D. L. R. 25; Town of Branchville v. Felder, 86 S. C. 280, 68 S. E. 575. The lack of jurisdiction over the person is waived by failure to object promptly. Rex v. Pinder, [1923] 3 D. L. R. 707; State v. Fitzgerald, 51 Minn. 534, 53 N. W. 799. But it is settled that, although the original arrest be unlawful, a subsequent arrest under a valid process will give jurisdiction over the prisoner. Rex v. Johnston, [1924] 3 D. L. R. 470; State v. Snodgrass, 91 W. Va. 553, 114 S. E. 136. Cf. Ker v. Illinois, 119 U. S. 436. And most authority is to the effect that the function of process is merely to bring a prisoner before the court, and that once he is actually in the custody of a court having jurisdiction of the crime, defects in the process, or its service, are immaterial. Rex v. Hughes, 4 Q. B. D. 614; Rex v. Flavin, 35 Can. Cr. Cas. 38; In re Johnson, 167 U. S. 120. This seems to have been the old common-law rule. See 2 HAWK. P. C., 5 ed., c. 27, § 107. Cf. Rammage v. Kendall, 168 Ky. 26, 181 S. W. 631. It is argued in support of the doctrine of Rex v. Linder, supra, that it is necessary to prevent arbitrary arrests, the civil remedy being inadequate. But, it being admitted that a subsequent arrest will give jurisdiction though the original arrest is unlawful, this doctrine will have no beneficial effect, and merely necessitates useless formality, for if the prisoner's objection to the jurisdiction is sustained, he will be promptly rearrested under a valid process. See State v. Turner, 170 N. C. 701, 86 S. E. 1019.

EQUITABLE SERVITUDES

66

DEFENSES ACQUIESCENCE IN VIOLATIONS BY OTHERS AS A BAR. - The complainant and defendants each owned lots subject to the restriction that each lot should be used only for one dwelling house for a gentleman's country residence." The complainant seeks to restrain the defendants from violating this restriction, although he had acquiesced in violations by others as the character of the neighborhood changed. He had also permitted a decree by default to go against him in a prior suit by a neighbor to have the restriction as to the neighbor's lot declared void. From an order dismissing the bill, the complainant appeals. Held, that the complainant is "estopped" by his acquiescence in prior violations of the restrictions. Order affirmed. Marston v. Lentz, 124 Atl. 116 (N. J.).

According to the preferable analysis, an equitable servitude gives rights of property rather than of contract. See 31 HARV. L. REV. 876. When the purpose of the parties to the covenants can no longer be accomplished, the servitude is dead, and both equitable enforcement and damages for breach should be denied. See Roscoe Pound, "Progress of the Law - Equity," 33 HARV. L. REV. 817. See 29 HARV. L. REV. 106. In such a situation, by the reasoning of the principal case, an estoppel" to enforce the restrictions results from the acquiescence of the complainant in former violations by which the original purpose of the restrictions has become unattainable. There are cases where relief is denied because of a true equitable bar arising from laches or acquiescence in violations by the defendant. Roper v. Williams, T. & R. 18; Sayers v. Collyer, 28 Ch. D. 103; Phillips v. Dunseith, 269 Pa. St. 251, 112 Atl. 240. But where the violations have been committed by third parties, acquiescence is ordinarily not held a bar unless the object of the restraint has been rendered unattainable. Knight v. Simmonds, [1896] 2 Ch. 294; De Galan v. Barak, 223 Mich. 378, 193 N. W. 812; O'Gallagher v. Lockhart, 263 Ill. 489, 105 N. E. 295; Bowen v. Smith, 76 N. J. Eq. 456, 74 Atl. 675. Cf. Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691. That this result is reached seems to indicate that the true basis of denial of relief is not any equitable bar because of acquiescence, but the fact that the complainant no longer has any property right in the servitude, either because the restraint was intended by the grantor who created it to last only as long as the object was attainable, or because the complainant himself has voluntarily abandoned his right. See Fort v. Field, 124 Atl. 314, 316 (N. J.).

- EFFECT OF MOTIVE.

INDUCING BREACH OF CONTRACT-JUSTIFICATION -The plaintiff was manager of a travelling theatrical company, paying chorus girls £1/10 a week as against £2/10 a week, the minimum wage set by the Joint Protection Committee, representing five associations of actors and managers. The committee investigated the plaintiff's business, and found girls in his company living in prostitution because their salaries did not enable them to live decently. To drive the plaintiff out of business unless he met its terms, the committee informed theater managers of the facts and persuaded them to break their contracts with the plaintiff and to refuse to enter into further contracts with him. The plaintiff asked an injunction against interference with his existing or prospective contracts. Held, that the defendants were justified. Action dismissed. Brimelow v. Casson, [1924] I Ch. 302.

It has frequently been held that a labor organisation is not justified by its duty to its members in inducing third persons to break their contracts with one against whom the organisation is enforcing its demands. Quinn v. Leathen, [1901] A. C. 495; South Wales Miners' Federation v. Glamorgan Coal Co., [1905] A. C. 239; R an W Hat Shop, Inc. v. Sculley, 98 Conn.