Upon his bankruptcy the plaintiff petitions for 88 of these shares. Held, that the plaintiff may recover. Duel v. Hollins, 36 Sup. Ct. Rep. 615.

By the weight of authority a customer has a property right in stock purchased on credit for him by a stockbroker. Richardson v. Shaw, 209 U. S. 365. See 19 HARV. L. REV. 529. Contra, Covell v. Loud, 135 Mass. 41. But the stock is considered fungible and the broker is only required to keep for the customer sufficient stock of the same kind. Caswell v. Putnam, 120 N. Y. 153, 24 N. E. 287; Richardson v. Shaw, supra. Where one who holds property subject to the rights of another wrongfully disposes of it and later reacquires it, he of course still holds it subject to those rights. Williams v. Williams, 118 Mich. 477, 76 N. W. 1039; Church v. Ruland, 64 Pa. St. 432, 444; Schutt v. Large, 6 Barb. (N. Y.) 373, 380. Now the same is held where the wrongdoer disposes of fungible property-stock, for example—and later acquires similar property. In re Brown, 171 Fed. 254. These decisions are sometimes based on a presumption that the acquisition was for the purpose of restitution. But it is often difficult to justify such presumption. Further, it is hard to see on what principle the law gives legal effect to this intention if it is presumed. A less artificial and more satisfactory explanation would seem to be a constructive trust, imposed by law on the wrongdoer when he is capable of making specific reparation for his wrongful disposal of property. This broader principle would give a right in a case, like the principal case, where circumstances rebut the presumption of an intent to restore.

CARRIERS - PERSONAL INJURIES TO PASSENGERS — DUTY TO PROTECT FROM ASSAULT. · The plaintiff, a negro, while waiting in a depot to take passage on a train, was assaulted by the town marshal, who was running all negroes out of town. The station agent, who knew all of the circumstances, made no attempt whatever to interfere. The plaintiff sues the railway. Held, that the defendant is not liable. Fennell v. Atchison, Topeka & Santa Fe R. Co., 158 Pac. 14 (Kan.).

The duty of carriers to protect their passengers from assault cannot be questioned. Seawell v. Carolina Central R. Co., 132 N. C. 856, 45 S. E. 850; Texas, etc. R. Co. v. Jones, 39 S. W. 124 (Tex. Civ. App. 1897). See Southern R. Co. v. Hanby, 183 Ala. 255, 259, 62 So. 871, 873. This applies even to assaults and arrests made by officers of the law if the carrier has notice that the conduct of the officer is wrongful. See 2 HUTCHINSON, CARRIERS, § 987. But since carriers are not insurers of safe passage, it must appear, in order to establish liability, that the assault was forseeable and could have been prevented. See Pittsburg, etc. R. Co. v. Hinds, 53 Pa. 512, 515. See 25 HARV. L. REV. 470. The principal case assumed that a lesser duty is owed to the populace waiting in the station for trains than to those on board trains. See 2 HUTCHINSON, CARRIERS, $989. But the rule is well settled that persons entering depots for the purpose of taking passage are passengers. Exton v. Central, etc. R. Co., 62 N. J. L. 7, 42 Atl. 487. See 2 WOOD, RAILROADS, § 298.

CARRIERS SLEEPING CARS - LIABILITY OF CARRIER FOR PULLMAN EMPLOYEE'S TORT TO TRESPASSER. The plaintiff's husband, who was trespassing on a Pullman car, was impelled by the threatening conduct of a Pullman conductor to jump off the train, and sustained fatal injuries. The plaintiff sues the railroad. Held, that the railroad is not liable, as the conductor was not its servant. Louisville & Nashville R. Co. v. Marlin, 186 S. W. 595 (Tenn.).

It is well settled that Pullman employees are not, except under special arrangements, general servants of the railroad. Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84; cf. Oliver v. Northern Pacific R. Co., 196 Fed. 432. Yet railroads are often held liable to passengers for acts of Pullman employees which touch the railroad's duty. Pennsylvania Co. v. Roy, 102 U. S. 451;

Campbell v. Seaboard Air Line Ry., 83 S. C. 448, 65 S. E. 628. The courts uniformly reason that for this purpose the Pullman employees are temporary servants of the railroad. See Pennsylvania Co. v. Roy, 102 U. S. 451, 457. This is, at best, a fiction. The true reason for the liability rests in the fact that the carrier's duty of proper conveyance is non-delegable. See Dwinelle v. New York, etc. R. Co., 120 N. Y. 117, 123, 24 N. E. 319, 321; Barrow S. S. Co. v. Kane, 88 Fed. 197, 199. A breach of it, therefore, even though committed by the servant of an independent contractor, renders the railroad liable. Some make this duty not only non-delegable, but even absolute in respect of the wilful torts of employees. Jackson v. Old Colony Street R. Co., 206 Mass. 477, 92 N. E. 725. See 6 LABATT, MASTER AND SERVANT, 2 ed., § 2447 ff. But obviously a non-passenger cannot invoke this extraordinary liability, since it rests upon the relationship of carrier to passenger. Blake v. Kansas City Southern Ry. Co., 38 Tex. Civ. App. 337, 85 S. W. 430.

CONFLICT OF LAWS - JURISDICTION FOR DIVORCE - FOREIGN DECREE AGAINST A NON-RESIDENT. The plaintiff's wife had divorced a former husband in Nevada, the court there taking jurisdiction by the wife's residence and constructive service on the husband. The plaintiff now sues in New York to annul his marriage on the ground that his wife's previous divorce decree was void. Held, that the burden is on the plaintiff to establish that the husband in the former action was a resident of New York when the decree was rendered. Kaufman v. Kaufman, 160 N. Y. Supp. 19 (Sup. Ct.).

New York has long contended that divorce proceedings are in personam. See Lynde v. Lynde, 162 N. Y. 405, 412, 56 N. E. 979, 981. It has therefore refused to give effect to a foreign court's decree of divorce against a non-resident of the foreign state not personally served. Winston v. Winston, 165 N. Y. 553, 54 N. Y. Supp. 298. See 15 HARV. L. REV. 66. The Supreme Court, while considering such divorce binding in the foreign state, has held that New York's disregard of such decree was not a violation of the "full faith and credit" clause. Haddock v. Haddock, 201 U. S. 562. The majority of the states, however, deeming divorce to be an action in rem, hold, if one party be domiciled within the state the other, though non-resident, may be served constructively. Loker v. Gerald, 157 Mass. 42, 31 N. E. 709; In re James Estate, 99 Cal. 374, 33 Pac. 1122; Dunham v. Dunham, 162 Ill. 589, 44 N. E. 841. Some of the New York courts have made an attempt by subtle distinctions to more closely conform to these decisions. North v. North, 47 Misc. 180, 93 N. Y. Supp. 512, affirmed 11 App. Div. 921, criticised, Catlin v. Catlin, 69 Misc. 191, 193, 126 N. Y. Supp. 350, 351. And it must be obvious that even the New York decisions, requiring, as they do, domicile of the libellant to create jurisdiction, cannot consider divorce as in personam in the true sense of the word. See J. H. Beale, Jr., "Constitutional Protection of Decrees of Divorce," 19 HARV. L. REV. 586, 590. Indeed, the principal case, by giving extraterritorial effect to a decree of divorce rendered against a non-resident defendant served by publication, unless such defendant be a resident of New York, seems to be an acknowledgment of that fact. Certainly any decision which tends to bring the New York law on this subject into conformity with that of the majority of states, must be desirable. But it is difficult to see on what principle the present decisions of the New York courts can possibly be based. But see Percival v. Percival, 106 App. Div. 111, 118, 94 N. Y. Supp. 909, 913.

CONSTITUTIONAL LAW - POWERS OF LEGISLATURE: TAXATION CONSTITUTIONALITY OF AN INCOME TAX ON A CORPORATION ENGAGED IN EXPORT TRADE. The plaintiff corporation seeks to recover the tax levied by the Federal Government on that part of its income derived from export trade, asserting the levy to be unconstitutional as a tax on exports. Held, that the tax

is not unconstitutional. Peck & Co. v. Lowe, 55 N. Y. L. J. 981 (Dist. Ct., S. Dist. N. Y.).

For discussion of this case, see NOTES, p. 77.

CONTRACTS

CONTRACTS IMPLIED IN FACT

CONSTRUCTION OF CONTRACTS

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MOVING PICTURE RIGHTS AS PART OF RIGHTS OF DRAMATIZATION. Plaintiffs, who own the copyright of a dramatization of "Ben Hur," in 1899 granted defendants the sole right of "producing on the stage" or "performing" the play. Royalties were to be computed in a manner wholly inapplicable to any method of producing moving pictures. Defendants have recently threatened to make a photoplay based on the dramatization. Plaintiffs bring a bill in equity to restrain them, and defendants, in turn, counterclaim, asking that the plaintiffs be enjoined from making such a photoplay. Held, that both injunctions should be granted. Harper Bros. v. Klaw, 232 Fed. 609 (Dist. Ct., S. Dist., N. Y.).

A general grant of dramatization rights has been held to include the right to make moving pictures. Frohman v. Fitch, 164 App. Div. 231, 149 Ñ. Y. Supp. 633. But in the principal case the court finds that owing to the agreed method of computing royalties, the grant includes only the right to produce the play on the legitimate stage. It, however, enjoins the plaintiff from using the moving picture rights thus found to be in him, on the ground of a negative covenant implied in the contract. If such covenant exists, it obviously cannot be directly aimed at moving picture production, since the art was in its infancy and hardly in the minds of the parties at the time they made the contract. The implied negative covenant referred to must therefore be a general one, to do nothing detrimental to the value of the dramatization rights granted. But even in the sale of the good will of a business, most courts will allow the vendor to set up a rival establishment, and simply limit him from soliciting the customers of the old business. See 24 HARV. L. REV. 311. Yet it is certainly easier to imply a general negative covenant from a sale of "good will" than from a sale of the sole dramatic rights. Cf. Cescinsky v. Routledge & Sons, [1916] 2 K. B. 325, 328.

CORPORATIONS - CITIZENSHIP AND DOMICILE OF CORPORATIONS - ENEMY CHARACTER: DOMESTIC CORPORATION WITH ALIEN ENEMY SHAREHOLDERS AND DIRECTORS. An English company, all but one of whose shareholders and all of whose directors were German subjects resident in Germany, brought suit in England on an admitted debt. Defenses were that the agent who authorized the suit had no authority to do so, and that payment to such a company would be illegal as trading with the enemy. Held, for the defendant on the ground first stated. On the second point the Lords were in dispute. Daimler v. Continental Tyre and Rubber Co., [1916] 2 A. C. 307 (House of Lords).

It is certain that a corporation takes no character simply from the nationality of its shareholders. Hastings v. Anacortes Packing Co., 29 Wash. 224, 69 Pac. 776; Queen v. Arnaud, 16 L. J. Q. B. (N. S.) 50; Amorduct Mfg. Co. v. Defries & Co., 31 T. L. R. 69. The case is therefore one of those that tempt a court to look through corporate entity to the incorporators. Our feeling toward such cases will depend on our belief or lack of it in the objective reality of the corporate identity. Cf. MORAWETZ, CORPORATIONS, 2 ed., § 227 seq., with Laski, "The Personality of Associations," 29 HARV. L. REV. 404. One statement on which lawyers should agree is that the corporate entity should not be disregarded if the result sought can be reached on any other ground. See 20 HARV. L. REV. 223. In the principal case there was no danger that any sums paid to the corporation would reach the German shareholders until after the termination of the war. See Continental Tyre and Rubber Co. v. Daimler Co., [1915] 1 K. B. 893, 905; 28 HARV. L. REV. 629. The injury of enemies after the

war is over has not before now been considered a proper basis for judicial action. Another ground suggested in the judgments is that the corporate entity has itself taken hostile character from the fact that it is probably controlled largely from abroad. It is a commonplace that enemy character depends primarily on residence. Albretcht v. Sussmann, 2 Ves. & B. 323. And there are serious theoretic difficulties in finding a corporation resident anywhere except in the state of its incorporation. See BEALE, FOREIGN CORPORATIONS, § 73 seq. So it had been provided: "In the case of incorporated bodies, enemy character attaches only to those incorporated in an enemy country." PROCLAMATION ON TRADING WITH THE ENEMY, Sept. 9, 1914, par. 3. TRADING WITH THE ENEMY ACT, 1914, par. 1, (2). There is, however, respectable authority to the effect that a corporation takes character from the place of its chief administrative office, wherever it may be incorporated. Martine v. International Life Ins. Ass'n, 53 N. Y. 339. See E. Hilton Young, "The Nationality of a Juristic Person," 22 HARV. L. REV. 1, 18. Of course if it has given actual assistance to the enemy, there is good ground for refusing it relief. Netherlands South African Ry. Co. v. Fisher, 18 T. L. R. 116. In the case before the court, however, there was no suggestion that the corporation had actually helped the enemy, nor that its head office was anywhere except at London. With enemy shareholders and directors suspended from their powers pendente bello, the possibility of control from Germany would be a very slender basis for decision.

CESSITY

EASEMENTS NATURE AND CLASSES OF EASEMENTS - EASEMENT OF NERIGHT OF ACCESS TO GAS AND OIL. — The plaintiff was lessee of land, under an "agricultural lease" in which no specific reservations or exceptions were made. Later the owner of the land leased the gas and oil under the tract to the defendants. The defendants occupied enough of the surface of the land for the machinery necessary for drilling. The plaintiff seeks an injunction against the occupation of this land. Held, that the injunction will not issue. Kemmerer v. Midland Oil & Drilling Co., 229 Fed. 872 (C. C. A., 8th Circ.).

When a lease of land is made without reservation or exception, the lessor parts with his entire right of possession during the term. Cobb v. Lavalle, 89 Ill. 331. Consequently he can give no right to a subsequent lessee. But the court in the principal case construes the words "agricultural lease" to imply that only the surface was granted, with the rest of the land excepted. It is elementary that a landowner may by grant divide his land horizontally as well as vertically. Caldwell v. Fulton, 31 Pa. St. 475; Manning v. Frazier, 96 Ill. 279. On conveying away part of his land, an owner is entitled to a way of necessity over that part if the rest of his holdings cannot be otherwise reached. Brigham v. Smith, 4 Gray (Mass.) 297; Telford v. Jenning Producing Co., 203 Fed. 456. Accordingly it has been held that a grantor who retains the oil under his land has a right of access to his holdings. See 7 HARV. L. REV. 47. This right would of course pass to a subsequent grantee or lessee of the land retained. It would seem therefore in the principal case that the defendant should be entitled to occupy the land necessary for the enjoyment of his lease...

HABEAS CORPUS UNCONSTITUTIONAL PROCEDURE IN TERRITORIAL COURT AS GROUNDS FOR ISSUANCE OF WRIT BY FEDERAL COURT. — In a criminal trial in the Circuit Court of Hawaii the court allowed the prosecution to read to the jury the testimony of a witness given at a former trial, thus violating the prisoner's constitutional right to be confronted with the witnesses against him. The prisoner seeks a writ of habeas corpus in the United States District Court. Held, that the writ will not issue. In re James P. Curran, U. S. Dist. Ct. of Hawaii, April, 1916 (not yet reported).

The "Federal Habeas Corpus Act" provides that the writ shall not issue in

favor of a prisoner unless he is confined in violation of the Constitution, laws, or treaties of the United States. U. S. COMP. STAT., § 753. This broad language has been rather narrowly construed, and it is now well settled that the writ of habeas corpus will not perform the functions of a writ of error. See Henry v. Henkel, 235 U. S. 219, 229. It will only lie if the proceedings in the committing tribunal are void or show lack of jurisdiction over the parties or the subject matter of the action. Ex parte Siebold, 100 U. S. 371; Ex parte Parks, 93 U. S. 18. See Henry v. Henkel, supra. Where the denial of a right guaranteed by the Constitution involves an error of procedure or even vitiates the mode of trial, habeas corpus is not the proper remedy. So the denial of the right to have a jury of one's peers and to have compulsory process in order to obtain favorable witnesses will not be reviewed on habeas corpus. Ex Parte Harding, 120 U. S. 782. Likewise the claim of double jeopardy will not be investigated on habeas corpus. Ex parte Bigelow, 113 U. S. 328. Accordingly, the principal case seems clearly right.

HUSBAND AND WIFE-RIGHTS AND LIABILITIES OF WIFE AS TO THIRD PARTIES - HUSBAND'S CREDITORS' RIGHTS IN SEPARATE ESTATE MANAGED BY HUSBAND PRESUMPTIONS. - A business, bought with his wife's money, was managed by an insolvent debtor, on a salary as her agent. No evidence as to the disposition of the salary was offered. A prior creditor seeks to charge the business. Held, that the profits are chargeable to the extent of his salary. Fisher v. Poling, 88 S. E. 851 (W. Va.).

Transactions between an insolvent debtor and his wife have always been subject to exceptional scrutiny. White v. Benjamin, 150 N. Y. 258, 265, 44 N. E. 956, 958. Indeed, in such cases a wife must sustain the burden of disproving fraud in conveyances to her. Pope v. Cantwell, 206 Fed. 908; Edelmuth v. Wybrant, 21 Ky. Law 929, 53 S. W. 528. Contra, Clark Bros. v. Ford, 126 Ia. 460, 102 N. W. 421. Thus the presumption in the principal case that the husband's salary, being unaccounted for, must be in the business is not in principle an innovation. Indeed, this same court and others have charged the business profits for creditors where the husband's services were gratuitous. Boggess v. Richards' Adm'r, 39 W. Va. 567, 20 S. E. 599; Glidden v. Taylor, 16 Oh. St. 510. Contra, Shircliffe v. Casebeer, 122 Ia. 618, 98 N. W. 486; Wasem v. Raben, 45 Ind. App. 221, 90 N. E. 636. However, some courts have given as the basis for such result the assertion that the husband's industry cannot equitably be withheld from his creditors. Patton's Exr. v. Smith, 130 Ky. 819, 114 S. W. 315. Such decisions must likewise rest on a presumption, that the business, after all, is that of the husband. Cf. Robinson v. Brems, 90 Ill. 351; Talcott v. Arnold, 54 N. J. Eq. 570, 35 Atl. 532. In the principal case, the salary itself satisfied the creditors. But it would be of interest to know whether the court, on the principle of these cases of gratuitous labor, would have charged the profits if the salary had not sufficed.

INJUNCTIONS - LEGISLATIVE ABOLITION OF THE INJUNCTIVE REMEDY IN LABOR DISPUTES UNCONSTITUTIONAL. The defendants, members of a trade union desirous of forcing the plaintiffs to join, brought pressure on the latters' employers to compel them to discharge the plaintiffs. A statute provided that no injunction should issue in such case. Held, the statute violates the Fourteenth Amendment of the Constitution of the United States, and an injunction will therefore issue. Bogni v. Perotti, 203 Mass. 26, 112 N. E. 853. For discussion of this case, see NOTES, p. 75

INSURANCE - MUTUAL BENEFIT INSURANCE · RIGHT OF SOCIETY TO RAISE PREMIUMS. - Plaintiff took out a certificate of insurance from a fraternal order under a by-law of the association which provided that "monthly pay