munity as against the improper use of a corporate franchise, but it subjects those citizens to all the inconveniences of remedy, to that limitation of relief which arises from the fact that it is a foreign corporation governed by foreign laws, and can only be reached and called to an account as to the use of its charter, the remedies of dissolution and other proceedings against it, in the State under whose laws it is organized.

The mere statement of the situation sufficiently shows the necessity, on part of the Legislature, with respect to foreign corporations, of vindicating the State policy. The organization of State industries into corporations, by its own citizens, under foreign laws, should be prohibited. It should be prohibited, also, for reasons beyond the considerations which I have urged, as affecting taxation of property legitimately within the jurisdiction of the State and subject rightfully to the operation of its tax laws. these are matters beyond the scope of the discussion in which I intended to indulge.

But

ing with the corporation are interested in the question as to who are stockholders and as to the changes of stockholdings made from time to time, inasmuch as that is a part of the security which the State gurantees to them in dealing with it. If they have a legal or equitable interest in the capital of the corporation so as to entitle them to inquiry as to its condition, they may also be entitled to know, from time to time, in periodical statements, as to how far that capital has been impaired so as to effect the security for the payment of their claims. But, the limit prescribed for myself does not permit further

consideration of these matters.

Abstracts of Recent Decisions.

ACCORD AND SATISFACTION FAILURE TO PERFORM.- Where, in the course of performance of a contract, disputes and mutual recriminations arose, and afterwards a new and modified contract was

the topics I have presented, is:

First. That no corporation for profit should be permitted to organize until not less than fifty per cent of the capital had been subscribed and twentyfive per cent thereof paid, where the corporation was to operate a public use; and that all of the capital should be subscribed and paid, as to all other corporations.

Second. That no shares of stock should be issued upon said subscription, or otherwise sold, without full payment of the par value of such stock in money or in property necessary to the use of the corporation, of full equivalent money value.

Third. That no running business shall be organized into a corporation, or purchased by a corporation, at other than the value thereof, which shall be ascertained by appropriate public authority.

Fourth. That the stockholders of all corporations for profit organized for the conduct of private business, in the sole interests of the stockholders, shall be liable for the whole amount of its indebtedness, over and above its capital and assets.

Fifth. That all assignments of stock made in the contemplation of the insolvency of a corporation for profit, or with intent to evade liability, as stockholder, shall be void.

Sixth. That no bonds shall be issued in excess of the amount of capital actually paid.

These provisions look only to the security of the creditors and to the public dealing with the corpora

tion.

I have not attempted to consider or discuss the question as to the rights of stockholders, as against the corporation or its officers, nor as to their rights among themselves. The creditors and those deal

under it: Held, that there was no satisfaction, and that the original contract remained in force, and an action for damages could be maintained for breach thereof. (Crow v. Kimball Lumber Co. [U. S. C. C. of App.], 69 Fed. Rep. 61.)

CARRIERS OF GOODS- CONTRACT. A local station agent, as such, has no power, without further authorization, express or implied, to bind his company by a contract to transport freight beyond its line. It is, however, entirely competent for a carrier to contract to carry freight beyond its own line, and if it does so indicate, such contract is binding upon it. (Page v. Chicago, etc., Ry. Co. [S. Dak.], 64 N. Y. Rep. 137.)

CORPORATIONS INSOLVENT CORPORATION PREFERENCE. — To entitle one to a preference on a claim for services as manager of an insolvent corporation for two months preceding its insolvency, he must prove the services actually rendered by him. (Duryee v. United States Credit System Co. [N. J.], 32 Atl. Rep. 690.)

FRAUDS, STATUTE OF CONTRACT. -The value of work and labor supplied under a contract void by the statute of frauds, is recoverable upon the theory that a benefit has been recovered, from which springs an implied undertaking to pay the value of such work and labor. (Banker v. Henderson [N. J.], 32 Atl. Rep. 700.)

MECHANICS' LIENS-RAILROAD CONTRACTORS. The Florida statute of June 3, 1887, which gives a superior lien to any persons "who shall perform any labor upon or for the benefit of any railroad," etc., is to be construed as extending its benefits to a railroad contractor who has furnished work and

labor for construction, as well as to those actually performing labor. (Couper v. Gaboury [U. S. C. C. of App.], 69 Fed. Rep. 7.)

MUNICIPAL CORPORATIONS

LIMIT OF INDEBT

EDNESS. Held, following the decision of the Supreme Court of Pennsylvania, that the language of article 9, § 8, of the Constitution of that State, limiting the debt of cities to 7 per cent of the assessed valuation of taxable property therein, means the valuation fixed by the city authorities for city taxation, not made by county officers for county purposes. (Dupont v. City of Pittsburgh [U. S. C. C., Penn.], 69 Fed. Rep. 13.)

PRINCIPAL AND AGENT AUTHORITY. -An agent who is authorized to sell standing timber has no implied authority to accept a note of the purchaser as part payment, made payable in three months, to the order of the agent individually, and in no manner disclosing his agency; and in such case the principal will be sustained in asking for a rescission of the contract. (McGrath v. Vanaman [N. J.], 32 Alt. Rep. 686.)

RAILROAD COMPANY-MORTGAGE-FORECLOSURE -RECEIVERSHIP.-A court of equity has no power, upon a bill for the foreclosure of a railroad mortgage, to take into its custody or control, through a reciver or otherwise, property not covered by the mortgage, nor to make any order that will hinder or delay creditors in subjecting property not covered by the mortgage to the payment of their debts. (Scott v. Farmers' Loan & Trust Co. [U. S. C. C. of App.], 69 Fed. Rep. 17.)

SALES-WHEN TITLE PASSES. In a contract for the sale of personal property, where no agreement is made as to credit, the law presumes that the parties intended to make the payment of the purchase price and the delivery of possession concurrent conditions. The vendor has the right to perform his part of the contract, or, if the goods have been delivered with the expectation of immediate payment, and this condition is not performed, the vendor may retake possession of the same. (George W. Merrill Furniture Co. v. Hill [Me.], 32 Alt. Rep. 712.)

WILL--DEVISE OF SURVIVORS.-Testator devised his residuary estate to his executors, to be equally divided among his five children, the shares of the sons to be paid them when they attained twentyone years of age, the daughters to receive the interest on their shares yearly during their lives; but if either of them die without issue her share is to go to her surviving brothers and sister equally to be divided among them." Held, that on the death of a brother who left children, such children were not entitled to any part of the daughter's share. (Ashhurst v. Potter [N. J.], 32 Alt. Rep. 698.)

New Books and New Editions.

Schouler's Domestic Relations, 5th edition, by James Schouler, LL. D., professor in the Boston University of Law and author of treatises on the Law of Personal Property, Bailments, including Carriers, Wills, etc.

The desirability of a new edition of this able work on this most important subject is easily seen by the tremendous number of decisions which have been made on this subject since the appearance of the last edition. It will be but necessary to mention that the law of Husband and Wife is changing yearly on account of the fresh enactments by the different Legislatures and is, at present, in a most pitiable and chaotic condition. This embarrassment to the lawyer to discover the true interpretation of the law is to a great extent obviated by the appearance of this work which is most comprehensive in its scope and complete in every part. We realize that too often the public are deceived by an enthusiastic review of some work which is not in accord with the merits which it deserves, but we feel justified in highly recommending this work as a substantial treatise and valuable text-book on this important subject of domestic relations. The table of cases cited shows a tremendous amount of research on the part of the author and that all the recent decisions are embodied in the work. The work is divided into six parts, each having one or more chapters on the different parts of the subject discussed in each sub-division. The first part deals with a general discussion of the law of Domestic Relations and is divided into eleven paragraphs, while the second part deals with Husband and Wife and is divided into seventeen chapters. The third part is on Parent and Child, The Right of Parents and Duties and Right of Children with reference to dren, and is comprised within six chapters. The Parents, Legitimate Children and Illegitimate Chilfourth part deals with Guardian and Ward and is subdivided into nine chapters on Guardians in General, Appointment of Guardians, Termination of Guardian's Authority, Nature of the Guardian's Office, Rights and Duties of the Guardian concerning the Ward's Person, Rights and Duties of the Guardian as to the Ward's Estate, Sales of the Ward's Real Estate, The Guardian's Bond, Inventory and Accounts, and the Rights and Liabilities of the Ward. The fifth part deals with Infancy, General Disabilities of Infants, Acts Void and Voidable, Acts Binding upon Infant, Injuries and Frauds of Infants, Ratification and Avoidance of Infants' Acts and Contracts, and Actions by and against Infants. The sixth part deals with Master and Servant, Nature of the Relation, Mutual Obligations of Master and Servant, Rights and Liabilities of the Servant as to Third Persons, and General Rights and Liabilities of the Master. The index might, perhaps, be more elaborate, but is in the main satisfactory, while the foot-notes on each page make the work really practical and convenient in form. Published by Little, Brown & Co., Boston, Mass.

Snydacker v. Broose, 51 Ill. 357; Abbott v. Kimball, 19 Vt. 551: Welsh v. Cochran, 63 N. Y. 181; Hyde v. Cooper, 26 Vt. 552. In the case last cited, Redfield, C. J., in rendering the opinion of the court, said: "When the party does not direct or control the course of the officer, but requires him to proceed at the peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser even by relation, the party is not affected by it, even when he receives money, which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable, unless he consents to the officer's course, or subsequently adopts it." There is an entire absence of competent testimony in this case to show that the plaintiff in error authorized, or had knowledge of, any improper conduct of the officer, if there was any, and, therefore, nothing upon which to base a verdict against him for damages for any trespass then committed. Before he can be so held, it must appear (1) that there was such an abuse of the process, by the constable, as to make him a trespasser, and to forfeit all protection which his writ otherwise would give; and (2) that plaintiff in error either directed or counseled such wrongful conduct, or thereafter consented thereto by accepting the benefits result ing therefrom, with full knowledge of the facts. The instructions which were given by the court at the special instances of the defendant in error, ignored these principles, which lie at the foundation of the liability of the plaintiff in error, and are erroneous.

We publish in this issue of the LAW JOURNAL the reply of Jacob Spahn, Esq., of Rochester, N. Y., to the general letter sent by the Commissioners on Statutory Revision to different members of the bar in relation to the amendment to the Code of Civil Procedure. There may be also found a special letter from Mr. Spahn urging the reasons for the change which he proposes and which in fact is to allow either party to an action to take a general exception to the charge of the trial judge. We recognize the importance and weight of the suggestions which Mr. Spahn makes and we believe that such an amendment would work to the futher

ance of justice and would prevent many of the difficulties and dangers of the charge of the trial judge which now exist. But we protest that an exception should be taken by either party after the trial in a reasonable time and to specific parts of the charge of the judge, not to the charge in general, for we cannot and do not consider that any practice which will materially increase the work of the appellate courts is desirable, and it is most important that there should be less matter come up before the appellate court and that appeals should be restricted. It is very easy for the practitioner to form a short bill of exceptions, after the trial, to the charge of the judge, though we consider that either party should be allowed to except at the time of the trial before the case goes to the jury as well as to make requests to charge which are most proper for the just trial of any cause. It is, therefore, with great pleasure that we recommend the suggestions of Mr. Spahn in so far as they allow exceptions to be taken to specific parts of the judge's charge during the time allowed for an appeal.

During the last few weeks two judges have recommended changes which, on account of the importance of the reforms and the distinguished character and great learning of the judges, entitle them to profound consideration and respect from the bar. Last week we had occasion to comment on the case of the People v. Shea, which was recently decided by the Court of Appeals. Judge Peckham, who has had wide experience as an active practitioner, trial judge, and as a member of the court of last resort, calls the attention of the public as well as of the bar to the unfortunate, unnecessary, unreasonable and improper rules of practice which allow a mass of worthless facts and immaterial testimony to come before the appellate court of last resort. The great care which the judges of the Court of Appeals take with their opinions and with their work, and the literary quality of the opinions, not to speak of their great legal worth, are too well-known to here comment upon. Does it not seem ridiculous and like loading a faithful public servant down to send before him for review ten thousand printed folios embracing two thousand printed pages of record, exclu

Some

sive of some three hundred pages of questions put to jurymen, which came before the court in the case of the People v. Shea? There has been so much said within the last year and a half in regard to limiting appeals to the court of last resort that we really believed that some practical benefit would accrue to the court. But, seemingly, this relief to the court has disappeared in the vociferous flagellations of the discordant notes of code reformers. thing should be done; but it is most humiliating to the bar that the suggestion should have to come from the judges of the court that must be relieved. It is most proper that every benefit should be accorded to a man who is accused of murder, but from a practical standpoint we think it is almost prejudicial to the accused to go before the court of last resort, with such an unwiedly mass of absolute nothingness. A few well chosen points, such as exceptions to the charge of the trial judge, the admission of testimony which can be easily picked out and attacked, and which are clearly fixed in the mind of the counsel for defense, would practically give the court a better opportunity to judge of the merits of the case, while it would be absolutely impossible for the minds of any court to comprehend such a mass of testimony as we have referred to. But these suggestions of Judge Peckham do not stand alone as the only reminder to the members of our profession that our procedure is not in accord with business principles. It has been a favorite theory of this journal that too many appeals involve unnecessary delay, which is most prejudicial to the rights of suitors. Reforms cannot proceed along business lines without comprehending the broad principles of the law. Judge Brewer, of the United States Supreme Court, in his address to the American Bar Association, most clearly discussed this subject,

and said:

Terminate

Reverse the

tion. Limit the right of review. all review in one appellate court. rule of decision in appellate courts, and instead of assuming that injury was done, if error is shown, require the party complaining of a judgment or decree, to show affirmatively not merely that some error was committed in the trial court, but also that if that error had not been committed the result must necessarily have been different. It may be said that this would make reversals very difficult to obtain. They should be difficult. The end of litigation should be almost always in the trial court. Business men understand that it is best that the decisions of their committees of arbitration should be final and without any review. While some of our profession seem to think that justice is more likely to be secured, if by repeated reviews in successive courts, even to the highest. in the nation, the fees of counsel can be made to equal, if not exceed, the amount in controversy between the clients. In criminal cases there should be no appeal. I say it with relutance, but the truth is that you can trust a jury to do justice to the accused with more safety than you can an appellate court to secure protection to the public by the speedy punishment of a criminal. To guard against any possible wrong to an accused, a board of review and pardons might be created, with power to set aside a conviction or reduce the punishment, if on the full record it appears not that a technical error has been committed, but that the defendant is not guilty, or has been excessively punished.

"The truth of it is, brethren, that in our desire to perfect a system of administration, one which shall finally extract from confused masses of facts and fiction the absolute and ultimate verities, we forget that tardy justice is often gross injustice. We are putting too heavy burdens on our clients, as well as exhausting the patience of the public. Better an occasional blunder on the part of a jury or a justice of the peace, than the habit of protracted litigation.

ances.