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In the absence of any world power adjusting the struggle between states in order to reach certain ends, or what are thought to be ends, it would seem that the United States can protest with good cause if the British Black List appears to have no reference to British aims in the struggle with Germany, or if it seems, in application, to involve action or produce effects not necessary to the satisfaction of those aims, for in either case England is acting arbitrarily. Two aspects of the English policy appear. First, if Viscount Grey is right, his government is seeking merely to cut off a stream of goods flowing from England, through America, to Germany.18 Secondly, England's object may be the impressment of the United States into her policy of economic strangulation of Germany. In either aspect the Black List has a very apparent reference to England's purposes. Therefore it would seem that all this country can do about the Black List is to protest on some vague ground that its trade should not be killed.

The discussion, therefore, reduces to this: the English Black List will be acquiesced in or not according to whether or not this country regards England's aim as her aim.

ECCLESIASTICAL Law: How FAR ADOPTED IN THE UNITED STATES. An interesting question of statutory construction is involved in a recent decision that a court which by statute has power “to decree divorces from the bonds of matrimony" i has no jurisdiction by consequence to decree a legal separation. The legal separation, or divorce a mensa et thoro, was the decree given by the ecclesiastical courts of England. The court concedes that the ecclesiastical law is part of the common law, but holds that it was not adopted in this country as part of the common law.3 Hodges v. Hodges, 159 Pac. (N. M.) 1007.

The case does not present the same problem as is presented by the adoption of the principles of English law by our common law or equity courts. In these cases tribunals were set up which were essentially the counterparts of their prototypes in England, and hence if not by explicit provision, at least by implication, they were given the entire jurisdiction of the English common law courts or courts of equity.? Because, however, of the difference in thought and in institutions due largely to the absence of an established church in most of the colonies, no ecclesiastical

18 British Note of October last, paragraph six. “The legislation merely prohibits persons in the United Kingdom from trading with specified individuals, who by reason of their nationality or their associations are found to support the cause of the enemy, and trading with whom will therefore strengthen that cause.”

1 N. M. STAT. 1915, Š 2773.

? See Crump v. Morgan, 3 Ired. Eq. (N. C.) 91, 98; Le Barron v. Le Barron, 35 Vt. 365, 367; 1 BISHOP, MARRIAGE, DIVORCE AND SEPARATION, $$ 116 ff.; 1 COOLEY'S BLACKSTONE, COMMENTARIES, 4 ed., * 84; DEAN POUND, INTRODUCTION TO THE STUDY OF LAW, 30-31.

3 The New Mexico courts are directed by statute to apply “the common law as recognized in the United States of America.' N. M. STAT. 1915, $ 1354.

For the legal theory as commonly stated, see 1 STORY, COMMENTARIES ON THE CONSTITUTION, 5 ed., 8 157. Cf. REINSCH, THE ENGLISH Common LAW IN THE EARLY COLONIES, BULLETIN OF THE UNIVERSITY OF WISCONSIN, Historical Series II, No. 4.

See Commonwealth v. Knowlton, 2 Mass. 530, 534-35. 6 See Cleveland, etc. R. Co. o. Keary, 3 Ohio St. 201, 205. · See STORY, EQUITY JURISPRUDENCE, 13 ed., 88 56-58.

courts were set up here. Therefore, since law cannot be, without a tribunal to administer it, the ecclesiastical law has never as a whole been in force in this country. Instead, certain portions of the subject matter originally adjudicated by the ecclesiastical courts, such as probate and divorce, have been put within the jurisdiction of our common law and equity courts. Since the jurisdiction thus given is only fragmentary, special rather than general, it is limited strictly by the words of the statute. So where there is no statute permitting it the court may not give divorce for impotency of the husband, or cruelty by the wife. And so where the statute contemplates custody of the children by one of the parents, the court cannot award it to a third person.12 So in the principal case, a grant of jurisdiction to decree absolute divorce does not confer power to decree a limited divorce.

It should not follow from this that none of the principles of the ecclesiastical law of divorce are to be applied by an American divorce court, nor is it generally so held.13 The statutes are usually construed to authorize the adoption of such of the general principles of the ecclesiastical courts as are applicable to the jurisdiction conferred, and not inconsistent with American institutions and unsuited to American beliefs. So where a statute allowed divorce for impotency, but provided no method of obtaining proof, it was held that the court might resort to the practice of the ecclesiastical courts compelling a medical examination. So also where the statute makes no provision with regard to connivance, courts have assumed that it was intended to adopt the general principles which governed the ecclesiastical courts as to connivance,15 and similarly with regard to condonation.16 And so the meaning of a term in the statute like 'extreme cruelty” may be construed in the light of the ecclesiastical law.17 In a striking case in probate law, another graft from the ecclesiastical tree, it was held that the court was free to choose the ecclesiastical rule regarding the effect of revocation on a prior will, in preference to a different rule laid down by Lord Mansfield.i No case could better illustrate the continued vitality of the principles of the ecclesiastical law where they are applicable to the circumscribed jurisdictions set up in this country, and where they are not in conflict with manners or statute.

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8 See Dickinson v. Dickinson, 3 Murph. (N. C.) 327, 328. In this case an attempt was made to secure a decree of divorce for an act of adultery committed before a divorce court was set up, under a retrospective statute. The court assumed that the law of divorce did not exist in North Carolina before the statute. See Crump . Morgan, supra, 98. See also Le Barron v. Le Barron, supra, 367; 1 BISHOP, supra, 88 116, 128.

. See Collier o. Collier, 1 Dev. Eq. (N. C.) 352, 353; Parsons v. Parsons, 9 N. H. 10 Burtis v. Burtis, 1 Hopk. (N. Y.) 557, 564. 11 Perry v. Perry, 2 Paige (N. Y.) 501. 12 Hopkins v. Hopkins, 39 Wis. 167, 171.

13 New York is commonly cited for the doctrine that no part of the ecclesiastical law has been adopted here. Burtis v. Burtis, supra; Erkenbrach u. Erkenbrach, 96 N. Y. 456, 463. But cf. Wood v. Wood, 2 Paige (N. Y.) 108, 111; Griffin v. Griffin, 47 N. Y. 134, 137; Higgins v. Sharp, 164 N. Y. 4, 58 N. E. 9. See 1 NELSON, DIVORCE AND ANNULMENT of MARRIAGE, $ 10.

14 Le Barron v. Le Barron, supra.
16 Robbins o. Robbins, 140 Mass. 528, 530.
16 Quincy v. Quincy, 10 N. H. 272, 273.
17 Morris v. Morris, 14 Cal. 76, 79.
18 Williams v. Miles, 68 Neb. 463, 471, 94 N. W. 705.

309, 318.

RECENT CASES

ARMY AND NAVY — WRONGFUL ENLISTMENT OF MINOR — RIGHT OF PARENTS TO DISCHARGE. - A minor by fraudulently misrepresenting his age succeeded in enlisting in the National Guard of a state after it had been drawn into the government service. His parents requested his discharge, which was refused. They thereupon obtained a writ of habeas corpus to be served upon the military authorities, but before service of the writ the minor had been arrested to await trial for fraudulent enlistment. There was a rehearing on the writ. Held, that the prisoner be released. Ex parte Avery, 235 Fed. 248.

At common law a minor's contract of enlistment is not voidable either at his own or his parents' instance. Commonwealth v. Gamble, 11 Serg. & R. (Pa.) 93; United States v. Blakeney, 3 Gratt. (Va.) 405. Nor may a parent obtain the discharge of a minor where a statute fixes the military age at eighteen, but makes no mention of a necessity of the parent's consent. Acker v. Bell, 62 Fla. 108, 57 So. 356. The federal statute, however, requires the consent of the parent or guardian. See U. S. REV. STAT., 88 1116, 1117. Under this statute the minor himself may not avoid his contract. In re Morrissey, 137 U. S. 157. But see In re Baker, 23 Fed. 30; Commonwealth v. Cushing, 11 Mass. 67. But while all authorities agree that the parent may avoid the contract, there has been a great diversity of opinion as to the parents' right to do so before the minor has paid the penalty of his crime. Ex parte Lisk, 145 Fed. 860; Ex parte Bakley, 148 Fed. 56, 152 Fed. 1022; Dillingham v. Booker, 163 Fed. 696; Ex parte Lewkowitz, 163 Fed. 646. The court in the principal case reached its decision by finding that the jurisdiction of the civil court had attached before that of the court martial. However, the jurisdiction of the court martial is not distinct from that of the military authorities. But the question is not one of different courts of equal jurisdiction attempting to dispose of the same matter; the sole concern on a writ of habeas corpus, is whether the detention is lawful. See United States v. Williford, 220 Fed. 291. As the enlistment was good, though voidable, it follows that immediately upon the crime the military authorities had a legal right to hold the minor for court martial. Ex parte Lewkowitz, supra; United States v. Williford, supra. The writ must therefore fail upon such detention.

BANKRUPTCY ADMINISTRATION RIGHT OF STOCKHOLDERS OF BANKRUPT BUILDING AND LOAN ASSOCIATION TO VOTE FOR TRUSTEE. - A building and loan association became bankrupt. It owned $750,000 worth of assets, and was subject to stockholders' claims to that amount, but it owed only $12,000 to outside creditors. The stockholders were allowed to vote for the trustee in bankruptcy. Held, that this is proper. Merchants National Bank v. Continental Building & Loan Association, 232 Fed. 828 (Circ. Ct. App., 9th Circ.).

Only creditors having a provable claim are entitled to vote for a trustee in bankruptcy. U.S. COMP. STAT., S8 9585 (9), 9628. A stockholder of an ordinary corporation is clearly not, as such, a creditor. A building and loan association is formed for the purpose of accumulating a fund from the stock subscriptions of its members in order to make loans to them. The stockholders, like those of any other corporation, are liable to contribute to losses to the amount of their shares. McGrath v. Hamilton Savings & Loan Association, 44 Pa. St. 383. But they have the privilege of withdrawing, and then become creditors of the association, though their claims are deferred to those of outside creditors. Christian's Appeal, 102 Pa. St. 184. The association is expected ultimately to pay back all its stock subscriptions. Hence, as is forcibly shown by the principal case, its liability to outsiders is never more than a small fraction of that

to its stockholders. It follows that in the great majority of cases it cannot be shown to be insolvent by considering simply the claims of outside creditors. Accordingly, the claims of members may be shown to prove the propriety of remedies as for insolvency. See Globe Building & Loan Co.v.Wood, 22 Ky.L. Řep. 1500, 1502, 60 S. W. 858, 860. ENDLICH, BUILDING ASSOCIATIONS, 2 ed., $ 511. In like manner, if these associations are to be put through bankruptcy, the claims of the members must be permitted to be shown. But only debts provable in bankruptcy are included in the debts which make a person insolvent and allow a petition in bankruptcy against him. V. S. COMP. STAT., &$ 9585 (11) (12), 9587. So if these associations are to go through bankruptcy at all, their shareholders must be holders of provable claims and so allowed to vote for the trustee.

CARRIERS — PASSENGERS - WHO ARE PASSENGERS CHILD RIDING FREE AT INVITATION OF MOTORMAN. — The plaintiff, a boy ten years of age, in response to the beckoning of a motorman, boarded the defendant's street car without payment of fare. Owing to the negligence of the motorman in suddenly stopping the car, the plaintiff was thrown off and injured. He now sues the carrier on the theory of breach of duty toward a passenger. Held, that the plaintiff may recover. Hayes v. Sampsell, 113 N. E. 611 (Ill.).

It has long been held that the relation of carrier and passenger can arise otherwise than in contract. Marshall v. The York, etc. Ry., 11 C. B. 655; Austin v. Great Western Ry., L. R. 2 Q. B.442. However, the relation is perfected only by an acceptance of the person as a passenger by the carrier. Where the duty of accepting is delegated to an agent, it obviously includes acceptance only on payment of fare. Therefore, it is without the scope of the agent's authority to raise the relation when such payment is not intended. See J. H. Beale, “Carriers and Passengers,” 19 Harv. L. REV. 250, 265. Thus adults are generally classed as trespassers when riding with the conductor's permission without payment of fare. Purple v. Union Pacific Ry., 114 Fed. 123; Robertson v. New York & Erie R. Co., 22 Barb. (N. Y.) 91. Contra, Chattanooga Rapid Transit Co. v. Venable, 105 Tenn. 460, 58 S. W. 861. It must be equally apparent that it is without the scope of the agent's authority to raise the relation with respect to children under similar conditions, since the scope of the authority cannot vary in inverse ratio with the age of the person applying. See Chicago, etc. Ry. v. Casey, 9 Bradw. (III.) 632,643. However, a number of courts have made an exception to the rule and allowed recovery for a child injured as in the principal case. Cf. Wilton v. Middlesex Ry. Co., 107 Mass. 108, with Robertson v. Boston, etc. Řy. Co., 190 Mass. 108, 76 N. E. 513. Cf. Muelhausen v. St. Louis Ry. Co., 91 Mo. 332, 2 S. W. 315, and Whitehead v. St. Louis, etc. Ry. Co., 99 Mo. 263, 11 S. W.751, with Snider v. St. Joseph Ry. Co., 60 Mo. 413. While it seems difficult to say that the true carrier-passenger relation arises in these cases, the courts apparently have in mind an affirmative duty either to exclude children or else admit them as passengers. See New Jersey Traction Co. v. Danbech, 57 N. J. L. 463, 31 Atl. 1038; Pittsburg, etc. Ry. v. Caldwell, 74 Pa.

St. 421.

CONTRACTS CONTRACT OF INDEMNITY WHETHER ASSIGNABLE. A married woman owned stock in the plaintiff company, and was under heavy liability for calls thereon. In consideration of her executing a transfer of this stock to an infant, the defendant agreed to indemnify her against any liability for calls. The company went into liquidation, and the present holder of the stock being an infant, the woman was placed on the list of contributories. Judgment was recovered against her for calls, but as she had no separate estate, the judgment was fruitless. The liquidator then took an assignment from her of the contract of indemnity and sued defendant to recover the amount of the

calls. Held, that the plaintiff may recover. British Union & National Ins. Co. v. Ranson, 60 Sol. J. 679.

At law, recovery on a contract of indemnity, before payment on the liability, is dependent on the construction of the contract. If broad enough to be an indemnity for liability, and not merely an indemnity for payment upon liability, recovery will naturally follow. Gage v. Lewis, 68 Ill. 604; Churchill v. Hunt, 3 Denio (N. Y.) 321; In re Negus, 7 Wendell (N. Y.) 499; Showers v. Wadsworth, 81 Cal. 270, 22 Pac. 663. See Smith v. Ry. Co., 18 Wis. 17, 24. But equity, proceeding on equitable principles, will disregard the language of the contract even if it expressly limits the indemnity to payment on the liability. Lacey v. Hill, L. R. 18 Eq. 182; In re Law Guarantee, etc. Society, (1914) 2 Ch. 617; Central Trust Co. of N. Y. v. Louisville Trust Co., 87 Fed. 23. See Johnston v. McKiver, 19 Q. B. D. 458, 460. As to the point raised in the case upon the assignability of a contract of indemnity, there should be no difficulty. There is of course nothing personal in the right to receive money. The few cases in point so hold without argument. In re Perkins, (1898) 2 Ch. 182; Jenckes v. Rice, 119 Iowa 451, 93 N. W. 384; Marshall v. Cobleigh, 18 N. H. 485. The fact that the assignee is the party against whose claim the indemnity was given cannot decrease his rights. Indeed that fact might have been taken to give him a right independent of assignment to proceed against the claim to the indemnity, which is an asset of his debtor, ahead of other creditors. Cf. In re Richardson, (1911) 2 K. B. 705.

CONTRACTS — RESTRICTION ON ASSIGNMENT - EFFECT OF WAIVER. — A contract between the city and a contractor provided that neither the contract nor the right to moneys due thereunder should be assignable. The contractor assigned the claims for money to the bank for security. The city assented thereto and paid the money into court. A subcontractor claims that the assignment is invalid and, hence, that he can attach the claim as an asset of the assignor. Held, that the assignment operated to give the bank a complete right to the money due. Portuguese-American Bank of San Francisco v. Welles, U. S. Sup. Ct., Oct. Term, 1916, No. 45.

The court lays down the principle that restraining the alienation of a debt is no more to be tolerated than restraining the alienation of a chattel, and for this reason the assignment in this case operated to perfect the right of the bank to the moneys in question. It is well established that provisions against assignment are for the benefit of the contracting parties and if they waive their rights and do assign and themselves permit assignments, third parties cannot interfere. Wilson v. Reuter, 29 Ia. 176; Burnett v. Jersey City, 31 N. J. Eq. 341. Cf. Staples v. Somerville, 176 Mass. 237, 241, 57 N. E. 380, 381. On the other hand, if such provision is not waived, the assignee has no claims enforcible against the obligor. Griggs v. Landis, 19 N. J. Eq. 350; Andrew v. Meyerdirck, 87 Md.

. 511, 40 Atl. 173; Lockerby v. Amon, 64 Wash. 24, 116 Pac. 463. But see Spare v. Home Mutual Ins. Co., 17 Fed. 568. If the analogy sought to be drawn by the court between a chattel and a debt were carried to its logical conclusion it would follow that the provision against assignment has no effect and that a waiver thereof is immaterial. It is submitted that such an analogy cannot be drawn, since the legal conception of a chose in action is utterly different from that of a chattel. Board of Trustees v. Whalen, 17 Mont. 1, 41 Pac. 849; Griggs v. Landis, supra, 353. For an exhaustive inquiry into the nature of a chose in action as regards assignability, see W. W. Cook, in 29 Harv. L. Rev. 816, and Samuel Williston, in 30 Harv. L. REV. 97.

CRIMINAL LAW – FORMER JEOPARDY - IDENTITY OF OFFENSES — INFERIOR Court's LACK OF JURISDICTION OF GREATER OFFENSE. The defendant, convicted in a mayor's court on a charge of assault and battery, was sentenced to

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