"voting

such an agreement as was there in question, and a mere trust. This was shortly followed by Kreisel v. The Distilling Co. (see RECENT DECISIONS). The Chancellor made no reference to Clowes v. Miller, but rested his decision on Taylor v. Griswold, Cone v. Russell and White v. Tire Co. Held, that where a proxy is revocable, the stockholder sufficiently retains the power to exercise his individual judgment within the doctrine of Taylor v. Griswold. But if the grant of power is irrevocable and for a fixed time, then its validity must depend on the purpose for which it is given. A like doctrine is applicable to the creation of a trust and the appointment of a trustee to whom the title of the stock is conveyed. A distinction is drawn between a voting trust to provide for the carrying out of a plan already formulated by the stockholders in the exercise of their own judgment, as against one both to formulate and carry out (see, also, Shepang Voting Trust Case, supra). In this case it will be noted that there was no question of the transfer of the equitable interest, or of the right to direct the voting being intended to be personal to the transferor.

RECENT DECISIONS.

HAROLD WALKER, Editor-in-Charge.

AGENCY-BROKER'S DUTY TO REPORT NAME OF PURCHASER.-Defense, to suit for commissions, that broker did not disclose the name of the purchaser of realty. Held, inasmuch as defendant has not shown that this knowledge would have influenced her conduct, nor that plaintiff had any interest in the matter, plaintiff could recover. Veasey v. Carson (58 N. E. [Mass.]), Oct. 19, 1900.

This case sets a reasonable and just limit to the doctrine that it is the duty of the agent to give the principal notice of facts material to the agency, or which might influence the principal in his actions. Harvey v. Turner (4 Rawle [Penn.]. 223), 1833; Arrott v. Brown (6 Whart. [Penn.], 9), 1840; Devall v. Burbridge (4 Watts & Serg. [Penn.], 305), 1842; Moore v. Thompson (9 Phila., 164), 1873; Murray v. Beard (102 N. Y., 505), 1886; Hegenmyer v. Marks (37 Minn., 6), 1887. In Rich v. Black & Baird (173 Pa. St., 92), the failure to disclose the real purchaser barred recovery because the agent himself was the real purchaser, and, of course, had an interest; and in Humphrey v. The Eddy Transportation Co. (65 N. W., 13 [Mich.]), 1895, the antagonistic interest of the agent was proven.

AGENCY-REAL ESTATE AGEnt-Scope of AUTHORITY.-Held, that a real estate agent acting under instructions to sell cannot bind his principal by entering into a contract to sell the property. Armstrong v. Oakley (62 Pac. Rep., 499 [Wash.]). Oct., 1900.

In the construction of an agent's powers in the purchase and sale of real estate a stricter interpretation prevails than in the case of chattels. Where the agent is a professional broker, the rule of the principal case produces a satisfactory result, since the middleman's duty may be considered as discharged when he has introduced to the owner a person who subsequently purchases the land. Desmond v. Stebbins (140 Mass., 339), 1885. However, when a clear intent that the agent shall do more than this is expressed, power to enter into a binding contract on behalf of the principal would seem to be of the essence of the authority, the agent not being able to execute a conveyance because of the Statute of Frauds.

Haydock v. Snow (40 N. Y., 363), 1869. In several of the States which hold that authority to sell land necessarily includes the power to bind the principal by contract, the Statute of Frauds requires that the agent's authority be in writing.

BILLS AND NOTES-PAROL EVIDENCE-COUNTERCLAIM.-Action on a promissory note. Defendant pleaded as a counterclaim, (1) that the note was given in payment for certain shares of stock under the agreement, that whenever defendant should desire to return the said stock, the plaintiff would repurchase it by delivering up the note; (2) that the defendant had offered to return the stock and had demanded the note, but without success. Plaintiff objected to evidence being given under this plea, alleging that it tended to vary the terms of the note. Held, that the evidence was admissible. Germania Bank v. Osborne (83 N. W., 1084). Supr. Ct. of Minn., Oct. 25, 1900.

The evidence offered in support of the counterclaim tended to make out a case which would defeat the collection of the note, but it did not tend to change its terms. If payment could be enforced at all, it must be according to the terms of the note. But there was, under the issue tendered by the counterclaim, the question of the right to enforce payment of the note. The distinction between a defense and counterclaim was made in Manufacturing Co. v. Potts (59 Minn. 240; 61 N. W. 23), 1894. Allen v. Furbish (4 Gray, 504), 1855, and Hatch v. Hyde (14 Vt., 25), 1842, are to be distinguished from the present case. In both of those cases, evidence of collateral agreements was excluded; but there the agreements were pleaded as defenses in bar to the action. BANKRUPTCY-PREFERENCE-INNOCENCE OF BOTH CREDITOR AND DEBTORCREDITOR'S ABILITY TO PROVE BALANCE OF HIS CLAIM.-Payment of money by debtor who was later shown to have been insolvent, but was ignorant of the fact at the time, to a creditor who was unaware that the payment was a preference. Held, not to be such a preference as to bar the creditor from proving the remainder of his claim, under SECTS. 57g and 60a. The court distinguishes this case from Electric Co. v. Worden, on the ground that in the latter case the debtor knew of his insolvency and intended to make a preference, while here he had no such intention. In re Smoke (4 Am. Bank R., No. 3, 434), August, 1900. SEE NOTES. BANKRUPTCY PREFERENCE - INNOCENCE OF CREDITOR - ELECTION RETAIN Preference, or RetURN AND PROVE CLAIM.-A payment by an insolvent debtor on account to a creditor, within four months prior to the adjudication in bankruptcy, the creditor having no knowledge of any attempt to give him a preference. Held, this was a preference under SECT. 60, the enforcement of which would grant to one creditor a larger percentage of his claim than to any other. Although the trustee could not avoid this preference because the creditor had no knowledge of it, still, by SECT. 57g, the creditor will be barred from proving the remainder of his claim, if he retains this preference. In re Fixen & Co. (4 Am. Bank R., No. 1, page 10), May, 1900. SEE Notes.

ΤΟ

COMITY-RIGHT OF FOREIGN RECEIVER TO SUE.-The receiver of a Minnesota corporation brings suit in lowa to foreclose a mortgage in his own name "as receiver of," etc. Plaintiff alleges that the note and mortgage were duly assigned to him after his appointment as receiver. Held, on demurrer for want of capacity to sue: that a foreign receiver cannot sue without express statutory authority to do so; but even where the doctrine of comity is not recognized as to litigants in a representative capacity, the assignee of property may maintain an action as of right. Cole v. Cunningham (133 Ú. S., 107), 1890; Toronto General Trusts Co. v. C., B. & Q. R. Co. (123 N. Y., 37), 1890. The words "as receiver," etc., might be treated as descriptive of the person merely, and not as an essential part of the pleading. Demurrer overruled. Hale v. Harris et al. (83 N. W., 1046), Sup. Ct. of Iowa, Oct. 25, 1900.

CONSTITUTIONAL LAW-NATURALIZATION OF PORTO RICANS-Suffrage.— Held, the Treaty of Peace with Spain does not naturalize Porto

Ricans, in the absence of congressional action. Hence, they are not citizens of the United States, and have no right of suffrage.-The People of the State of New York ex rel. Frank Juarbe, Relator, v. The Board of Inspectors, etc. (32 Misc. 584), Oct., 1900. SEE NOTES.

CONTRIBUTORY NEGLIGENCE.-Plaintiff received injuries in an attempt to save her three-year-old child from being run over by defendant's car. Held, contributory negligence not shown, even though the child was in a city street unattended. West Chicago Street Ry. Co. v. Liderman, (58 N. E., 367 [Ill.]), Oct. 19, 1900.

It is not negligence per se to allow a young child to be in a city street unattended, Chicago v. Major (18 Ill., 349), 1857; Birkett v. Ice Co. (110 N. Y., 504), 1888; Creed v. Kendall (156 Mass., 291), 1892; McNeil v. Ice Co. (173 Mass., 577), 1899, and this is true regardless of the question whether its parents are sufficiently well-to-do to provide an attendant. Fox v. Railway Co. (118 Cal., 55), 1897; Hagan's Petition (5 Dill., 96), 1879; Mayhew v. Burns (103 Ind., 328), 1885; Ry. Co. v. Pitzer (109 Ind., 179), 1886, though the poverty of the parents has been thought important in some cases. Beach on Contributory Negligence and cases there cited. Hedin v. Ry. Co. (26 Ore., 155), 1894.

When human life is in danger the law will not impute negligence to one who attempts a rescue, if he does so with a reasonable expectation of success. Eckert v. R. R. Co. (42 N. Y., 5c2), 1870.

CORPORATIONS-POOLS AND VOTING TRUSTS.-Agreement between majority of stockholders of defendant corporation and certain trustees. Stockholders to transfer their stock and entire legal title thereto for five years, to the trustees named, who were given power to formulate and put into effect a plan to increase the capital of defendant company. Application by minority stockholder for preliminary injunction restraining trustees from voting stock. Injunction granted. Held, the agreement is contrary to public policy, in that it provides for management of the corporation, during a fixed period of time, by the judgment of others than stockholders. Kreisel v. The Distilling Co. of America.-(In Chancery of N. J.)-Oct. 1900. SEE NOTES.

CORPORATIONS-RESERVED POWER OF REVOCATION OF CHARTERS-DARTMOUTH COLLEGE CASE-Three recent cases in Delaware have held that the clause of the State Constitution of 1831, which authorizes the Legislature simply to revoke charters granted to corporations, without giving authority to alter or amend, gives the right to the Legislature to revoke any part of a charter-any separate franchise, or part of a franchise. Wilmington City Railway Co. v. Wilmington & B. S. Railway Co. (46 Atl. 12), May, 1900; Same v. People's Railway Co. (47 Atl. 246), Oct., 1900; Mayor of Wilmington v. Addicks (47 Atl. 366), Oct., 1900.

A charter, considered as a contract between the State and the corporation, can be, in absence of legislative provision, revoked or altered only by agreement of the parties. The Constitution has provided that the contract may be revoked, without providing for possible alteration. The cases cited hold that the power of revocation includes the power of alteration.

Whatever objection to this holding may be found, it is certainly within the power of the Legislature to alter the contract through the power to revoke. For revocation may at any time follow a refusal to accept alterations. This makes superfluous the decision that the clause gives the Legislature, at once, two powers, of revocation and alteration. CORPORATIONS-RESERVED POWER OF REVOCATION DISTINGUISHED FROM RIGHT TO REVOKE FOR ABUSE OR NON-USER.-The Constitution of 1831 gave the Legislature the right to revoke corporate charters. The Constitution of 1897 stipulated that revocation for abuse or non-user of corporate franchises should be effected only in the courts at the suit of the Attorney-General. Plaintiff corporation contends that the act granting defendant corporation a franchise along streets in which plaintiff had an exclusive franchise is unconstitutional, as the proper steps have not been

taken through the courts. Held, the clause of the Constitution of 1897 did not deprive the Legislature of its right to revoke without cause. Wilmington City Ry. vs People's Railway Co. (47 Atl. 246), Oct., 1900. The result of this decision is a further strengthening of the efficacy of the revoking clause of the Constitution of 1831.

CORPORATIONS-STATUTE AUTHORIZING CUMULATIVE VOTING INCLUDED in GENERAL RESERVATION BY STATE OF POWFR to Amend CHARTER.-By the Constitution of Michigan of 1850, Art. 15, § 1, Corporations may be formed under general laws. All laws passed pursuant to this section may be amended, altered, or repealed." In 1870 the Michigan Mutual Life Insurance Company was organized under such a law authorizing the company to prescribe the manner of electing directors. In 1885 the Legislature passed an act authorizing cumulative voting for directors in contravention of the charter and by-laws of the company. The plaintiffs exercised this right and claimed a seat on the board. Held, for the plaintiffs. Looker v. Maynard (21 Sup. Ct. Rep. 21), Sup. Ct. of U. S. Nov. 15, 1900.

It has been repeatedly held that the reservation of a general power to alter, amend, or repeal, gives the right to make any such alteration or amendment as will not impair the object of the grant or any right vested under the grant. Miller v. New York (15 Wall. 478). 1872, upheld the constitutionality of a statute authorizing the City of Rochester to change the number of directors in a railroad company, though the dissenting opinion held the agreement modified was between third parties, outside of and collateral to the charter, and hence beyond the legislative power to amend. That case cannot be distinguished in principle, from the case

at bar.

In State v. Greer (78 Mo., 188), 1883, there was no such general reservation of the power to amend, and a statute altering the voting power of the shareholders was deemed unconstitutional.

CORPORATIONS-STOCK IN TRUST-RESERVATION OF RIGHT TO VOTE `IN CESTUI QUE TRUST-EFFECT OF TRANSFER OF CESTUI QUE TRUST'S INTEREST.--Where plaintiffs A and B gave their stock to X, in trust, B retaining the right to vote the shares, Held, a transfer by B of his interest, to defendant, does not give to defendant B's right to vote the shares, which was purely a personal right. Clowes v. Miller (47 Atl., 845), N. J., Chancery, 1900.

The deposit in trust here was not simply a deposit for voting, or "voting trust," but a trust for certain purposes of ultimate disposal. Hence, in the absence of any express provision in the trust agreement, the trustee would have the power of voting. A provision similar to that enabling B to direct the voting, he being a joint, equitable owner, has been held valid and not against public policy, Hey v. Dolphin (36 N. Y. Sup. 627, and cases cited, page 632), 1895; Chapman v. Bates, N. J. Ch. (46 Atl. 591), 1900. But the right was intended to be purely personal to B, under the terms of the trust, and it could not therefore be transferred to defendant. On the other hand, it has been held that an irrevocable power of voting or directing the votes on stock cannot be vested in a person who is neither interested in the stock nor a representative of persons interested. White v. Tire Co. (52 N. J. Eq. 178, and 28 Atl. 75,

and cases cited), 1893. EQUITY-SPECIFIC PERFORMANCE-STATUTE OF FRAUDS.-Defendant, a physician, in consideration of $100, entered into a written agreement to sell his good will and to refrain from practicing in the vicinity. In a suit to restrain the defendant from practicing, Held, the defendant could not set up breach by the complainant of an oral agreement to buy defendant's house, $900, treating the $100 as part of the purchaseprice. Injunction granted. Lemon v. Randall (83 N. W. 994), Supr. Ct. of Mich., Oct. 31, 1900.

Parol evidence would have been admissible to show that by fraud, mistake, or surprise the written agreement did not contain the real terms (2 White & T. Lead. Cas. Eq., pp. 929, 496); Chambers v. Livermore

(15 Mich., 381), 1867. But the court will not refuse specific performance unless it be satisfied that the written agreement would not have been entered into if its true effect had been understood. Watson v. Marston (4 DeGex, M. and G., 230), 1853. In the present case defendant signed the writing with a full understanding of its terms. There was no mistake. The oral agreement, therefore, was simply void under the Statute of Frauds.

INSURANCE-EFFECT OF CLAUSE IN POLICY DEFINING THE LOCUS OF the CONTRACT. A clause stipulated that the policy should be interpreted by the Laws of New York. A statute of Missouri, where the policy was taken out, conflicted with the Laws of New York. Held, Missouri laws apply. New York Life Insurance Co. v. Cravens (20 Sup. Ct. Rep. 962), May 28, 1900.

In Equitable Life Insurance Co. v. Clements (140 U. S. 226), 1890, this particular Missouri statute was held mandatory. A State may prescribe rules by which foreign corporations shall do business; its limitations upon the power of contracting are conditions of the permit and accepted with it, except where the corporation rests its right upon the Federal nature of its business. Waters-Pierce Oil Co. v. Texas (177 U. S., 28), 1899. Such a policy of life insurance is not an interstate contract so as to be entitled to immunity from State control, nor is the business of life insurance interstate commerce. In Philadelphia Fire Asso. v. New York (119 U. S., 110), 1886, it was held that fire insurance, and in Hooper v. California (155 U. S. 648), 1894, that marine insurance, were not interstate commerce.

INTERNATIONAL PRIVATE LAW-CARRIAGE BY SEA-HARTER ACT-EXEMPTION OF NEGLIGENCE.-Goods shipped in an English vessel from Buenos Ayres for New York under bills of lading exempting carrier from liability for negligence and stipulating that the law of the ship's flag should govern the contract. In an action for damage to cargo, held, under Harter Act of 1893, Chap. 105, § 1 [27 Stat. at L., 445]. United States courts could give no validity to exemptions from negligence, and must apply their own law, irrespective of the contract of the parties, in all cases of voyages" from or between ports of the United States and foreign ports." Knott v. Botany Worsted Mills (21 Sup. Ct. Rep. 30).

This was a case of first impression in the Supreme Court (GRAY, J. at p. 31), and it was unfortunate that it should have turned entirely on the construction of a statute. In effect the courts decided that any rules of international private law which might have governed such a contract were done away with by the statute and the lex fori alone made applicable. In the absence of any statute the result would probably have been different [see remarks of GRAY, J., in Liverpool S. ́S .Co. v. Phenix Ins. Co., 129 U. S. at page 458], though the tendency of the lower courts had always been to apply the lex fori in such cases whether there was a stipulation for foreign law or not. The Brantford City (29 F. R. 373), 1886; Lewisohn v. Nat'l S. S. Co. (56 F. R. 602), 1893; The Energia (56 F. R. 124), 1893; The Guild Hall (58 F. R. 796), 1893. There was, however, a strong case the other way in The Oranmore (24 F. R., 922), 1885.

MASTER AND SERVANT-DUTY TO INSTRUCT-ASSUMPTION OF RISK.Plaintiff had been assigned to duty as a regular brakeman. The head switchman knowing his inexperience set him to make a coupling. Plaintiff was injured in the attempt. Held, that the Master knowing that particular skill was required which servant had not, and the danger not being apparent because of such inexperience, the risk was not assumed. Louisville & N. Ry. Co. v. Miller (104 Fed. 124). October 2,

1900.

An identical state of facts arose and this principle was applied in the Ill. Central R. R. Co. vs. Price (18 So. 415 [Tenn.]), March 25, 1895.

The case accords with the great weight of authority, established by a long line of decisions in New York, Massachusetts, Indiana, Vermont,