ness of extending it further seems open to doubt. Batchelder v. Queens Ins. Co. 135 Mass. 449 (1883); Dewees v. Manhattan Ins. Co. 6 Vroom (N. J.), 366 (1872).

The second ground upon which the decision is based is that the agent of the company had authority to search title. The Court neither cites authority for this proposition, nor supports it by argument. It is simply assumed. Here, again, the act of agent should have been sharply distinguished from the same act of the company. The company could have undertaken to search the title of the insured, but it does not follow that the soliciting agent had authority to undertake the search in behalf of the company. If the agent was not authorized to investigate the condition of the title of insured, his volunteering to do it in no wise affects the company. No ratification is claimed. No case has been found in which this question has been passed upon.

The authority of the agent has been much discussed where he delivers the policy without collecting the first premium. It has been held that he can determine how and when this premium shall be paid when he closed the contract. Bodine v. Exchange Fire Ins. Co. 51 N. Y., 117 (1872). But this does not warrant the conclusion that a soliciting agent has, from the nature of his duties, implied authority to search the title of applicant for insurance. The absence of decisions on this point indicates that it is not customary for agents to undertake a task so far removed from the line of their ordinary duties.

RECENT DECISIONS

BANKRUPTCY-Preferred Creditor's SetoFF. A creditor who received a preference under Section 60a, but without knowledge or reason to believe that it was a preference, and who later sold the bankrupt goods without security, is held under Section 60c, entitled to set-off the amount of this subsequent sale from the preference received, and, on payment of the excess of the preference, to prove his claim. McKey v. Lee, 5 Am. B. R. 267 (C. C. A. Ill. 1901). SEE NOTES.

BANKRUPTCY-REVOCATION OF DISCHARGE. A petition alleging fraud committed several years prior to the adjudication, when there is no proof that the discharge was obtained through fraud, or that the knowledge has come to the petitioners since the granting of the discharge, held, insufficient to revoke a discharge according to Section 15. In re Hoover, 5 Am. B. R. 247 (D. C. East. Dist. Pa. 1900). SEE Notes.

BILLS AND NOTES-GUARANTY ATTACHED-NEGOTIABILITY. The payee of a promissory note endorsed in blank without recourse, and in addition attached a guaranty of payment within a specified time after maturity, and fixed certain conditions in case of maker's default. Held, that the guaranty rendered the note non-negotiable. Doe v. Callow, 63 Pac. 603 (Kas., Jan. 1901).

This decision can be supported neither on principle nor by virtue of any peculiar doctrine of the jurisdiction. The cases relied on by the Court are not authority for the position taken. In Lyon v. Martin, 31 Kas. 413 (1884) cited, the only point bearing directly on the law of bills and notes is a holding that a waiver of all relief from valuation, appraisement, stay or exemption does not destroy the negotiability of the instrument. In Briggs v. Latham, 36 Kas. 209 (1887), the action was brought by a holder subsequent to the contract of guaranty against a guarantor who neither executed the instrument, was ever liable upon it, nor received any consideration. Killam v. Shoeps, 26 Kas. 310 (1881), was a holding in accordance with settled law, that an instrument so involved with other matters as to lose its character as a commercial instrument was not negotiable. In the principal case the guarantee was by a regular endorser on the paper, had no effect until after maturity, and could operate in no way as a drag on the negotiability of the instrument. BILLS AND NOTES-INTEREST-INABILITY TO MAKE DEMAND. By a statute of Colo. (Laws of 1889, p. 206, Jan. 2) interest is recoverable on money due on account from maturity. The defendant bank had temporarily suspended payment. On the day it resumed, plaintiff demanded his deposit and was paid, but claimed, in addition, interest during the time of suspension on the ground that such a fact made a demand unnecessary to fix the defendant's liability. The Court refused to allow interest before a demand. Patten v. American National Bank of Denver, 63 Pac. 424 (Colo., Jan., 1901).

In Colorado, wherever there is no agreement as to interest, it is restricted to statutory instances and the statute receives a strict interpretation. Denver S. P. & P. R. Co. v. Conway, 8 Colo. 16 (1884). Aside from these conditions even, the principal case represents a sound view, and the one taken in at least one other case, Sickles v. Herold. 43 N. E. 852 (N. Y., 1896). The undertaking of the bank is to repay only upon demand, and here there was no intention shown to bring the debt to maturity prior to the time the deposit was paid. The insolvency of a bank is not to be inferred from the appointment of a temporary receiver, and, therefore, this case is to be distinguished from that of insolvency where a demand is unnecessary. On any other theory the

bank would be liable to pay interest on all deposits, irrespective of whether or not the creditors of the bank would have elected to demand, and so bring their accounts to maturity.

CONSTITUTIONAL LAW-CONTROVERSIES BETWEEN THE STATES-JURISDICTION OF UNITED STATES SUPREME COURT. Original bill by the State of Missouri against the State of Illinois and the Sanitary District of Chicago, a public corporation organized under the laws of the State of Illinois, to prevent the discharge of sewage into the Mississippi River through the Chicago drainage canal. Held, on demurrer, that the United States Supreme Court had jurisdiction over the defendant State as well as over the defendant corporation, citizen of that State. State of Missouri v. State of Illinois, 21 Sup. C't. Rep. 331 (Jan. 28, 1901).

This case decides squarely that under Article III, Section 2, U. S. Const. whenever one State may choose to make complaint before the Supreme Court of the United States against another State for any act of the defendant State done by its legislature, officers or other agents, the defendant State cannot demur to the jurisdiction of the Court. The complainant State is the sole judge of whether it should feel aggrieved or not. It makes no difference whether the supposed injury concerns the extent of the sovereign jurisdiction of the complainant, as in boundary dispute cases [cf. Rhode Island v. Massachusetts, 12 Peters, 657 (1832)]; or whether, as in the present case, the injury affects mere property rights of the complainant State or its citizens. The question arises as to what decree the Court will eventually make in this case if it should decide in favor of the complainant. It could hardly compel the Illinois Legislature to legislate on the matter. But this does not seem a valid objection against taking jurisdiction over the State of Illinois. For any decree prohibiting the discharge of sewage into the Mississippi River will be more effective if directed against the "State of Illinois and all or any of its agents" than if directed only against the single co-defendant in this case, the Sanitary District of Chicago.

CONTRACTS-CONSIDERATION VOID IN PART. In consideration that plaintiff promised to care for defendants' testator till his death, and to refrain from marriage, testator agreed to provide amply for her in his will. The promise not to marry was void as against public policy. Held, that where the consideration for a promise is two-fold, part of which is void, the other part, if good, will support that promise. And that where the void promise is incidental to the main engagement, which has been performed, an action will lie for such performance by the other party. King v. King, 59 N. E. 111 (Ohio, Nov., 1900).

It is well settled that where a promise is based upon two considerations, one of which is void for insufficiency, if the other be good the promise will be enforced. King v. Sears, 2 Cromp. M. & R. 48 (Exchequer, 1835). Chitty on Contracts, 9th Edition 56. But it is equally well settled, that where the contract is entire, and part of the consideration is illegal, the whole contract is bad. Derg v. Chapman, 9 Shep. 488 (Me. 1843). Filsoms v. Hines, 5 Barr. 452 (Pa. 1846). Loomis v. Newhall, 15 Pick. 159. (Mass., 1833). The principal case would seem to be of this nature. Metcalf on Contracts, Boston, 1867, p. 221. Chitty on Contracts, and cases cited above. Certainly there is no authority in the court to say what part of the contract is important, and what immaterial. This would be making an agreement for the parties, not enforcing one they have made. 2 Parsons on Contracts, 5th Edition, 505.

CONTRACTS-OFFEREE'S KNOWLEDGE OF OFFER. One who takes a folded paper from an express agent, containing a special contract limiting the company's liability, is not bound thereby, unless he knew it to be such, or actually had knowledge of its contents. Springer v. Westcott, New York Law Journal, March 14, 1901.

The decision follows the long line of authorities in this State on the same point, and decides the question of fact in a similar way. Blossom v. Dodd, 43 N. Y. 264 (1870); Madan v. Sherrard, 73 N. Y. 329 (1878);

Grossman v. Dodd, 63 Hun, 324 (1892). In cases of bills of lading, the same Court has decided that the shipper is affected with notice of the stipulations contained therein, whether he has read the paper or not. Hill v. R. R. Co., 73 N. Y. 351 (1878) Zimmer v. R. R. Co.. 137 N. Y. 460 (1893). And so in passenger tickets for transportation on ocean steamships. Steers v. Steamship Co., 57 N. Y. 1 (1874); Fonseca v. Steamship Co., 153 Mass. 553 (1891) accord. The reason given is that those transactions are of such common occurrence, and steamship tickets and bills of lading are so universally known to contain conditions and stipulations, that the one receiving such instruments is considered to have assented to their terms, irrespective of his actual knowledge thereof. In these days, certainly, contracts for baggage carriage by express companies are as frequently engaged in as contracts for freight, and ocean transportation, and it might be reasonable, perhaps, to say that the principle of the latter cases is equally applicable to the former. Watkins v. Rymill, 10 Q. B. Div. 178 (1883).

CORPORATIONS-STATUTORY LIABILITY OF DIRECTORS NOT PENAL. Defendant, director of corporation organized in So. Dakota, by statute of incorporation, was there individually liable for all debts contracted in excess of capital stock. Held, such liability is contractual, not penal, and could be enforced in any State. Farr v. Briggs, 47 Atl. 793 (Sup. Ct. of Vt., April 13, 1900).

This case is against the great weight of decisions, but in accord with views of text writers. It is well settled penal statutes are not enforceable except in State where enacted. Story, Conf. Laws, §§ 620, 621. But urged that statutory liability of directors is usually not penal in criminal law sense, but a private obligation, similar to that of sureties, and imposed for the double purpose of inducing directors to do their duty and of securing creditors from loss. Morawetz, Corporations, §§ 907-8; Cook, idem, 323; Thompson, idem, §§ 3052, 4164-6, 8525-6. This would also seem to be the trend of recent decisions: Huntington v. Attril, 146 U. S. 657 (1892), distinguishing between statute to punish offense against public justice of State, and one to afford private remedy to person injured by wrongful act; Same v. Same, Privy Council (1893), App. Cases, 150, that liability to be penal must be in nature of suit in favor of State whose law is infringed. See also Brady v. Daly, 175 U. S. 148 (1899), at p. 155. Contra: Stokes v. Stickney, 96 N. Y. 323 (1884); Carr v. Rischer, 119 N. Y. 117 (1890). And cf. Marshall v. Sherman, 148 N. Y., 9 (1895).

DOMESTIC RELATIONS-CONTRACT OF MARRIED WOMAN-VALIDITY OF JUDGMENT. Husband and wife made a joint note under the common law. Later the Weissinger Act was passed authorizing a married woman to sue and be sued as a feme sole. Suit was then brought on the note and judgment against the wife obtained and now held valid. Howard v. Gilson, 60 S. W. 491 (Ky., Jan. 1901).

This Court relies solely on the authority of Turner v. Gill, 49 S. W. 311 (Ky., 1899), but misinterprets the doctrine of that case. The question there was one of pleading, not whether the note was a valid obligation. The Court says, referring to the status of the wife, after the passage of the Act in question: "She stands before the law * * *just as a divorced woman or a widow would have stood prior to the passage of the Statute referred to, if sued upon an obligation made during her coverture." The Court does not mean that a note invalid because of coverture is valid when the woman becomes sole. They say judgment could not be taken against a married woman, because it is but a contract of record and would not be binding upon her; the Act removes that objection. The defendant must plead her coverture specially; this she deliberately refused to do when she had her day in Court, and the judgment shall stand. Nevertheless it is established that the note of a married woman at common law was not merely suspended during coverture, not voidable and subject to ratification, but absolutely void. Waul v. Kirkman, 25 Miss. 609 (1853); Parkman v. Tennyson, 50 Ind. 456

(1875). In the principal case the note was void and the plaintiff stated no cause of action upon which a judgment could issue.

DOMESTIC RELATIONS-FRAUDULENT DIVORCE-AnnulmenT. Defendant, after a divorce secured by fraud, married a second husband. After his death she claims an interest in the estate, whereupon his heirs make application to have the decree of divorce set aside. Held, that plaintiffs have not sufficient interest to maintain their suit. Tyler v. Aspinwall, 47 Atl. 455 (Conn., Jan. 1901).

Upon proof of fraud in the procurement of a judgment the party defrauded may have it vacated at any time. Cannan v. Reynolds. 5 El. & B. 301 (1855). ́ ́And relief will not be refused to the injured party, because of a subsequent marriage contracted by the other party on faith of the decree of divorce. Allen v. McClellan, 12 Penn. St. 328 (1849). But the general rule is that no one not a party to a judgment can make direct application to have it annulled. Baugh v. Baugh, 37 Mich. 59 (1877). And where a departure has been made from this doctrine, it has been in favor of petitioners who have been prejudiced as to well-defined legal rights by the judgment in question. This question of practice is now commonly governed by statute.

EQUITY-SPECIFIC PERFORMANCE OF CONTRACT FOR SALE OF PERSONALTYADEQUACY OF LEGAL REMEDY. Held, That in a contract for the sale of certain live stock, the fact that the company who engaged to deliver said live stock had no other property in the State, and so was practically insolvent was ground per se for granting specific performance, as the insolvency made the legal remedy inadequate. McNamara v. Home Land & Cattle Co., 105 Fed. 202 (Dec. 10, 1900).

This novel decision confuses adequacy of remedy at law with adequacy of the defendant's estate, and reaches a result which is supported by a few dicta merely. As Mr. Pomeroy says in Note 2, p. 34 of the Second Edition of his Specific Performance, after criticising a dictum of SIR JOHN LEACH'S in Doloret v. Rothschild, 1 S. & S., 590 (1824). In a few early American cases, also, the insolvency of the defendant is stated as a partial reason or at least as a makeweight for granting the relief." There are a number of cases containing dicta to the same effect as the principal case, but most of them are to be explained as cases of enforcement of a trust of personal property. Of this nature are both the cases cited by the learned Judge, and the additional case cited for his view in the American and English Encyclopædia of Law, Vol. 22, page 992. Clark v. Flint, 22 Pickering, 231 (Mass., 1839); Parker v. Garrison, 61 Ill. 250 (1871), and Johnson v. Brooks, 93 N. Y. 337 (1883).

FEDERAL PRACTICE-REMOVAL OF CAUSES. By an Indiana statute every railroad in the State is liable to an employee for all injuries caused by the negligence of a fellow-servant. In a joint suit by an injured employee against his fellow-servant and a non-resident corporation, Held, the cause of action was not separable and could not be removed to a Federal court. Charman v. Rv. Co., 105 Fed. 449 (Ind. 1900).

The Federal courts have ruled that master and servant cannot be sued jointly for negligence of the servant where the master is not personally concerned in the negligence. Warax v. Ry. Co., 72 Fed. 637 (1896). On this point of substantive law the principal case is not in conflict with the latter decision, since by another statute in Indiana master and servant may be sued jointly and the Federal court would necessarily follow the State ruling. Connell v. Ry. Co., 13 Fed. Rep. 241 (1882). The Supreme Court has repeatedly affirmed that when a plaintiff has sued defendants jointly at law the case cannot be removed by a defendant whose citizenship is different from that of plaintiff, even though the alleged cause of action be joint and several. The Removal Cases, 100 U. S. 457 (1879); Ayres v. Wiswall, 112 U. S. 187 (1884); Ry. Co. v. Martin, 178 U. S. 245 (1900). The principal case seems to be correctly decided.

FEDERAL PRACTICE-RULES OF DECISION. Where by a decision of the highest court of a State the legal status of property has been determined