immorality. See Lord St. Leonards in In re Connor, 2 Jo. & La T. 456, 459-60. But at least one exception has since been established in the case of a testamentary gift by the putative father, on the ground that since the gift dates from death the begetting of bastards is not encouraged. Occleston v. Fullalove, L. R. 9 Ch. App. 147, 162; In re Hastie's Trusts, 35 Ch. Div. 728. Here a difference was taken upon another ground. If the bastard was described as the child of the mother only, it was ascertainable and could take. Gordon v. Gordon, 1 Mer. 141; Evans v. Massey, 8 Price 22. But, if the description specified the father as well as the mother, it was said that the child must show a reputation as begot by the particular father. Wilkinson V. Adam, 1 Ves. & B. 422. For without such reputation the child was filius nullius and the law would not inquire into the scandal. See 2 JARMAN, WILLS, 6 Eng. ed., 1765. Hence, if the child is en ventre sa mère at the testator's death the gift would fail, since a child must be in esse during father's life to acquire the necessary reputation. Earle v. Wilson, 17 Ves. 529. See Blodwell v. Edwards, Cro. Eliz. 509, 510; Gordon v. Gordon, i Mer. 141, 152. Contra, In re Connor, 2 Jo. & La T. 456, 460. See Occleston v. Fullalove, L. R. 9 Ch. App. 147, 164. However, the fiction of filius nullius is in these days an unstable pediment for any doctrine. The result should rather be rested on the practical difficulty of proof, a question of degree to be determined in each case. See Occleston v. Fullalove, L. R. 9 Ch. App. 147, 158. But this difficulty assumes that the testator desires such proof. Usually however he states his paternity simply as matter of belief and not by way of limitation. See 2 JARMAN, Wills, 6 Eng. ed., 1770, 1781.

NATURALIZATION - FILIPINOS. A native Filipino applied to be made an American citizen under R. S. XXX, § 2169, as amended in 18 STAT. AT L. 318, and under the Act of June 29, 1906, 34 STAT. AT L., C. 3592, § 30. Held, that the petition be granted. In the matter of Marcus Solis, U. S. Dist. Ct. for Hawaii, Mar. 25, 1916.

A native Filipino applied under the same provisions to be made an American citizen. Held, that the petition be denied. In the matter of Alfred Ocampo, U. S. Dist. Ct. for Hawaii, Dec. 30, 1916.

Section 2169, which was in force prior to the Act of June 29, 1906, limits the provisions for naturalization to “aliens being free white persons and to aliens of African nativity and to persons of African descent.” But $ 30 of the Act of June, 1906, provided that “all applicable provisions of the naturalization laws

shall apply to and be held to authorize the admission to citizenship of all persons not citizens who owe permanent allegiance to the United States." As the petitioners come within the description, they are entitled to citizenship unless the former section modifies this provision. Being neither expressly repealed nor inconsistent with the Act of June, it must, by the rules of statutory construction, be still in force. Bessho v. U. S., 178 Fed. 245. See 1 LEWIS' SUTHERLAND STATUTORY CONSTRUCTION, 2 ed., 461-64. It has been argued, however, that as $ 30 does not refer to aliens, and as § 2169 only refers to aliens, it cannot be considered an “applicable" limitation. The wording of the statutes certainly justifies such an argument. But the history of $ 30 shows that its purpose was to avoid the difficulty of admitting Porto Ricans to citizenship because they were not aliens, could not renounce allegiance to a foreign sovereign, and were not, therefore, within the Act. To extend the 'rights of citizenship to all emigrants of our insular possessions regardless of race was clearly not the intention of Congress. So it has been held concerning the limitation of $ 2169 on other clauses, with wordings similar to $ 30. In re Alverta, 198 Fed. 688; In re Lampiloe, 232 Fed. 382. PATENTS - PROCEDURE WHAT CONSTITUTES AN INTERLOCUTORY DE

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fendant as to the other. Section 129 of the Federal Judicial Code provides that appeals from interlocutory decrees must be taken within thirty days. The plaintiff appeals from the part of the decree adverse to him more than thirty days after its entry. Held, that the decree was interlocutory and the appeal is barred. Stromberg Motor Co. v. Arnson, 56 N. Y. L. J. 1599 (Circ. Ct. of App., 2nd Circ.).

When the judgments in an action are absolutely unconnected, there may be partial appeals. Hall v. Bank of Virginia, 14 W. Va. 584, 614. So the appeal, in the principal case, can only be barred if the decree appealed from is considered interlocutory. An interlocutory decree has been defined as “an adjudication or order, made upon some point arising during the progress of a cause, which does not determine finally the merits of the question or questions involved.” See 1 BOUVIER, Law DICTIONARY, 3 rev., 805. The question of what constitutes an interlocutory decree is especially difficult when various issues are raised in the same suit. It has been held that a decree which decides the merits is final, even though an accounting not asked for in the pleadings and merely incidental to the relief is still necessary. Forgay v. Conrad, 6 How. (U. S.) 201. So a decree which dismisses the action as to some parties, so that they have no further interest in the action, but retains the case as to other parties, is so far final as to allow a separate appeal. Hill v. Chicago & Evanston R. Co., 140 U. S. 52. However the weight of authority is in accord with the principal case, that a decree dismissing some claims in an action and giving relief by an accounting as to others, but dismissing none of the original parties, is entirely interlocutory. Western Electric Co. v. Williams-Abbott Electric Co., 108 Fed. 952; Ex parte National Enameling Co., 201 U. S. 156. Contra, Historical Pub. Co. v. Jones, 231 Fed. 784. Under the previous federal statute which allowed appeals from interlocutory decrees only when an injunction was granted or continued, a decree denying an injunction was treated as final, in order that there need not be a separate accounting, if it was reversed. Scriven v. North, 134 Fed. 366. The present statute removes the necessity for such construction by allowing an appeal from an interlocutory decree if taken in time. But when the period for appeals is as short as in the Judicial Code, this uncertainty as to what constitutes an interlocutory decree is a cause of great hardship; and it seems that the term should be more accurately defined by statute, or that the courts should be given power to allow appeals, in their discretion, after the time has expired.

PRESUMPTIONS · PRESUMPTION OF DEATH FROM SEVEN YEARS' ABSENCE WITHOUT NEWS — SUBSTITUTION OF ACTUARIAL TABLE. William died in 1915. Thomas, his brother, disappeared in 1872 at the age of thirty, and has not been heard from since 1894. Thomas' children apply for administration of his estate. If Thomas predeceased William, the petitioners will share per capita in William's estate as nephews and nieces; if Thomas survived William, they will take per stirpes from Thomas' share. Held, that from mortality tables confirmed by family longevity Thomas both survived William and is now dead, and that administration be granted. The Goods of Thomas Rowe, 56 N. Y. L. J. 1669 (Surrogates' Ct.).

The presumption of death after seven years'absence from home without news is nothing more than the cessation of the presumption of continued life at the seventh year. See THAYER, PRELIMINARY TREATISE ON EVIDENCE, 323. It is based on two elements. First, the natural mortality of man in the lapse of time. Cf. Martinez v. Succession of Vives, 32 La. Ann. 305, 307. See SWINBURNE, TESTAMENTS, pt. 6, s. 13, 2. Second, the probability of continued communication from any one who is not dead. Cf. Traveler's Ins. Co. v. Rosch, 23 Ohio Cir. Ct. 491. Like any presumption it is rebuttable by explaining away its basic inferences. Thus the fact that the alleged deceased was a fugitive from justice might explain why he conceals his whereabouts. See Mutual Ben


efit, etc. Ins. Co. v. Martin, 108 Ky. 11, 18, 55 S. W. 694, 696; Sensenderfer v. Pacific, etc. Ins. Co., 19 Fed. 68, 69. And, likewise, as in the principal case, an unusual family longevity might rebut the first basic inference. But the use of the mortality tables does not explain away anything; it is rather a substitution of another presumption in which the period varies with the age of the alleged deceased. This is a more scientific application of the inference of death from old age, but it loses sight of the inference from non-communication. It is submitted that this latter is a constant, equally applicable to young and old, and hence that the actuarial tables should be applied only to shorten the period of seven years. Furthermore, the claim of the petitioners is not based merely on the fact that Thomas survived William, but necessarily also that William is now dead. If these claims are distinctly separate, the court is correct in claiming that the mortality tables can raise two presumptions: that Thomas lived to 1916, and that Thomas is now dead. But if the burden of proof were that Thomas died between 1916 and the present, that is, if this were one claim, then though the tables show that a majority of fifty-two year olds in 1894 will have survived 1916, but not the present, however only a very small minority will have died between those periods.

PROCESS — MANNER AND EFFECT OF SERVICE PRIVILEGE OF NONRESIDENT WITNESS FROM SERVICE AS OFFICER OF A CORPORATION. - An officer of a corporation was served with process in a county through which he was traveling, in order to serve as a witness, in obedience to a subpæna. A statute provides that “a witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county, while going, returning or attending, in obedience to a subpæna. OKLAHOMA REV. LAWS, 1910, $ 5064. Held, that the service did not give jurisdiction of the corporation. Commonwealth Cotton Oil Co. v. Hudson, 101 Pac. 535 (Okla.).

The statute relates only to the question of venue, and does not mention the rights of a corporation. See Linn v. Hagan's Adm'x, 121 Ky. 627,628, 87 S. W. 1101. But by common law witnesses are privileged from service of process. Hicks v. Besuchet, 7 N. D. 429, 75 N. W.793; Letherby v. Shaver, 73 Mich. 500, 41 N. W. 677. See Lamkin v. Starkey, 7 Hun (N. Y.) 479. See also TIDD,

7 PRACTICE, 195; ALDERSON, JUDICIAL WRIT AND PROCESS, § 120; 23 Harv. L. REV. 474. This applies even where the witness attends the trial voluntarily. Chittenden v. Carter, 82 Conn. 585, 74 Atl. 884. If this privilege were in the nature of a reward for the witness's services, it might be arguable that it extended only to his personal capacity; but if it is considered a privilege of the court, it ought to cover the witness's official capacity as well. Authority supports this latter view. See Parker v. Marco, 136 N. Y. 585, 589, 32 N. E. 989. Cf. Holyoke, etc. Ice Co. v. Amsden, 55 Fed. 593. So, as the purpose of the privilege is to expedite the administration of justice, and as public policy demands that witnesses shall feel free to attend trials without being subject to service of process, it has even been held that service of process upon a witness constitutes contempt of court. Bridges v. Sheldon, 7 Fed. 17; In re Healey, 53 Vt. 694. It follows that the decision in the principal case is sound, and it is supported by the authorities. Sewanee, etc. Co. v. Williams, 120 Tenn. 339, 107 S. W. 968. Cf. Mulhearn v. Press Publishing Co., 53 N. J. L. 150, 20 Atl. 760. But see Currie Fertilizer Co. v. Krish, 74 S. W. 268, 269 (Ky.).

TRADE SECRETS — LIST OF CUSTOMERS: USE BY FORMER EMPLOYEE. The plaintiff was engaged in the business of supplying towels and aprons to factories and offices. The defendants were former employees. Plaintiff seeks to restrain them from soliciting for themselves the custom of those whom they had served while in his employ. Held, that he is not entitled to an injunction pendente lite. New York Towel Supply Co., Inc. v. Lally, 162 N. Y. Supp. 247 (Sup. Ct., King's Cty.).

The plaintiff alleged that he had built up a large patronage for himself as an accountant; that he had employed the defendant as his confidential manager; and that since his discharge the defendant has made use of information derived from plaintiff's list of customers to solicit the patronage of these customers for himself. The defendant demurred. Held, that the complaint sets forth a good cause of action and that an injunction issue. Goldschmidt v. Sachs, 162 N. Y. Supp. 323 (Sup. Ct., N. Y. Cty.).

If a servant on quitting his employer carry away with him a list of customers with which he had been entrusted, or a copy of such list, it is a breach of his “duty of loyalty," and he may be compelled to return or destroy the list so taken. Grand Union Tea Co. v. Dodds, 164 Mich. 50, 128 N. W. 1090. Some cases go further and restrain him from soliciting the patronage of any customer whose name appeared on the list. Stevens & Co. v. Stiles, 29 R. I. 399, 71 Atl. 802. In a sense the more drastic decree is punitive. Yet it is obvious that the other. would, in practice, often fail to afford plaintiff adequate protection. A more difficult problem arises when the former employee relies only upon his memory for the names communicated to him. Here no more definite test seems possible than whether, in the light of all the facts, the employer's list of customers may fairly be termed a “trade secret.” Boosing v. Dorman, 148 App. Div. 824, 133 N. Y. Supp. 910. Thus, for example, if the customers did not deal exclusively with plaintiff and could readily have been located by any business competitor, the departing employee need not "wipe clean the slate of his memory,” and no injunction will issue. Boosing v. Dorman, supra; Peerless Pattern Co. v. Pictorial Review, 147 App. Div. 715, 132 N. Y. Supp. 37. But if the customers are exclusive patrons, likely because of a system of trading stamps to continue their dealings with plaintiff, and whose names and patronage have been acquired by years of enterprise and advertising, the former employer is entitled to protection. Witkop & Holmes Co. v. Boyce, 61 Misc. 126, 112 N. Y. Supp. 874, affirmed 131 App. Div. 922, 115 N. Y. Supp. 1150; Witkop & Holmes Co. v. Boyce, 64 Misc. 374, 118 N. Y. Supp. 461. In each case the particular facts must control. On the one hand the fruits of business industry and perseverance must be protected in so far as is possible; on the other, the whole policy of the law demands that budding competition be not stifled, that employees be not arbitrarily deprived of the increased market value which is a legitimate perquisite of protracted service in any line of business. Both New York cases seem, therefore, sound and reconcilable.

TRANSFER OF STOCK - LIABILITY OF A BROKER, ACTING FOR AN UNDISCLOSED PRINCIPAL, FOR CALLS ON STOCK. — The registered owner of bank stock, subject to statutory double liability, sold to a broker at auction. The broker, unknown to the vendor, was acting for a principal. The certificates, assigned in blank, were turned over to the broker who paid for them. He then assigned them to his principal, and collected his commission. Subsequently, and before any change of name on the registry of the bank, there was a call on the stock, which the original vendor, as the owner of record, was forced to pay. He thereupon sued the broker for reimbursement. Held, that he may not recover. Richards v. Robin, 162 N. Y. Supp. 12 (App. Div.).

Under the law of New York, although a registered shareholder is liable to the corporation, the legal title to the shares nevertheless passes with delivery regardless of any rules of the corporation to the contrary. See 8 N. Y. Consol. LAWS, 1989, 1990. Surely, then, there must be recovery in quasi-contract from the title-holder of the shares when the call was assessed, for the payment by the shareholder of record. But such liability cannot extend to the agent in the principal case, for he was not the holder of the shares when the call was made. At common law, although the title to the shares did not pass, the vendee of


stock was likewise liable to indemnify his vendor for calls subsequent to the purchase. See 1 MORAWETZ, PRIVATE CORPORATIONS, 2 ed., § 176; 2 Cook, CORPORATIONS, 7 ed., $ 258. This result was reached by imposing a constructive trust on the vendor for all dividends paid him as the registered owner, with a consequent right to exoneration from all calls from which he relieved the beneficial owner. Kellogg v. Stockwell, 75 Ill. 68; Humble v. Langston, 7 M. & W.

. 517, 530; Castellan v. Hobson, L. R. 10 Eq. Cas. 47, 51. See Locke v. Farmer's, etc. Trust Co., 140 N. Y. 135, 143, 35 N. E. 578, 580. But under this trust theory it is equally clear that the agent cannot be held, for the holder of the shares alone would be the beneficiary. Some courts, however, allow the registered holder to recover from his vendee on the basis of an implied contract that he shall be held harmless. Walker v. Bartlett, 18 C. B. 845. See Brigham v. Mead, 92 Mass. 245. Now in the principal case, as the agent bought to all intents and purposes as the principal, he may be held to the liability of a principal. See 2 MECHEM, AGENCY, ŠS 1729, 2419. The question therefore arises, granted that such warranty of indemnification exists, is it limited to the time during which the vendee holds the stock? The basis of this contract theory is the analogy to the promise by the sublessee implied on the assignment of a lease, to indemnify the original lessee for breach of the covenant to pay rent. See Burnett v. Lynch, 5 B. & C. 589. But under certain circumstances, even this promise in the case of land is considered limited to the sublessee's period of ownership of the lease. Walker v. Physick, 5 Pa. St. 193. In the case of stocks, the ease of transfer and the disinclination that must be present of a vendor to be liable for all subsequent vendees must rebut any implied promise to indemnify for calls after having transferred the stock. The cases have so held. Rogers v. Tolland, 43 Pa. Super. Ct. 248, 255. See Walker v. Bartlett, 18 C. B. 845, 862.

TRUSTS — POWERS AND OBLIGATIONS OF TRUSTEES — OBLIGATION TO PREFER ONE SORT OF CESTUIS OVER ANOTHER. A testatrix bequeathed all her property to trustees to convert and raise a fund of which the plaintiff was to be life-tenant. The trustees were given power to delay sale or conversion; but in the meantime the plaintiff was to receive three and one-half per cent interest. The trustees decided, bona fide, as the court found, to delay conversion until after the war, when a better price might be obtained. The plaintiff desires an immediate conversion in order that he may obtain a larger interest on the money. He sues to compel the trustees to convert. Held, that the plaintiff must be preferred to the residuary cestuis. Re Charteris, 179 L. T. J. 179 (Ch. D.).

A court will interfere to prevent the dishonest or capricious use of the power of a trustee. Dingman v. Beall, 213 III. 238, 72 N. E. 729. But when, as in the principal case, the trustee's discretion is exercised honestly, it cannot in general be reviewed. Smith v. Wildman, 37 Conn. 384. Thus when realty is devised to trustees to convert, with discretion to postpone the sale, they may generally exercise this discretion without interference from the court. In re Blake, 29 Ch. D. 913. The tendency, however, is not to allow the trustees to vary the relative interests of different classes of the beneficiaries. In re Courtier, 34 Ch. D. 136; In re Rowlls, [1900] 2 Ch. 107. See Hampden v. Earl of Buckinghamshire, (1893] 2 Ch. 531, 544. But even this will be allowed if it is clear that the testator intended it. In re Pitcairn, [1896] 2 Ch. 199. The principal case, therefore, can only stand if the power of delaying conversion was given primarily for the purpose of protecting the plaintiff. A more natural construction would be that it was given to protect the residuary cestuis, especially in view of the fact that the plaintiff was to be paid a definite rate of interest before the conversion.

VOLUNTARY ASSOCIATIONS — EFFECT OF INCORPORATION AND SUBSEQUENT DISSOLUTION. — A beneficial society was formed as an unincorporated associa



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