is not unconstitutional.

S. Dist. N. Y.).

Peck & Co. v. Lowe, 55 N. Y. L. J. 981 (Dist. Ct.,

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

CONTRACTS

CONTRACTS IMPLIED IN FACT

CONSTRUCTION OF CONTRACTS

- 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 N. 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.

EASEMENTS - NATURE AND CLASSES OF EASEMENTS - EASEMENT OF NECESSITY RIGHT 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

ments... should continue the same as long as his membership continued." The contract also incorporated the by-laws which provided for amendment and also for changes in the rate of assessment. Upon the association raising the rates he brings suit for breach of contract. Held, that such a raise was in the contemplation of the parties. Supreme Lodge, Knights of Pythias v. Mims, Sup. Ct. Off., No. 345.

It has been thought that decisions upon the right of benefit societies to amend its by-laws so as to affect the amount payable upon insurance policies were in hopeless conflict, not only between jurisdictions, but also within them. Some states allow no such amendments. Wright v. Knights of Maccabees, 95 N. Y. Supp. 996; Covenant Mutual Life Ass'n v. Tuttle, 87 Ill. App. 309; Pearson v. Knight Templars & M. Indemnity Co., 114 Mo. App. 283, 89 S. W. 588. But the principle of the present case - that due to the fraternal nature of the order, the "risk of events," and such sacrifices as the success of the scheme might naturally demand were within the contemplation of the parties seems to reconcile the decisions among those jurisdictions which do allow some changes. Thus increased assessments, even though they become prohibitive, are within the contemplated risk of events. Gant v. Mutual Reserve Fund Life Ass'n, 121 Fed. 403. But placing all members over a given age in a class by themselves and raising their assessments until they support their own insurance is not. Ebert v. Mutual Reserve Fund Life Ass'n, 81 Minn. 116, 83 N. W. 506, 834. Straus v. Mutual Reserve Fund Life Ass'n, 128 N. C. 465, 39 S. E. 55. Whereas a reassignment of all members into classes, though it may raise assessments, is a reasonable sacrifice. Reynolds v. Supreme Council of the Royal Arcanum, 192 Mass. 150, 78 N. E. 129.

INTERNATIONAL LAW - ENGLISH PRIZE COURTS DUTY TO OBEY ORDERS IN COUNCIL. The Zamora, a neutral ship, was seized by a British cruiser as a prize. During condemnation proceedings instituted in the Prize Court because of the contraband character of the cargo (copper), the Court acting under Order XXIX, Rule I, of the Prize Court Rules, applied to the Court for an interlocutory order that a part of the cargo be delivered to the Crown. The Prize Court so decreed and the owner of the vessel appealed to the Privy Council. Held, that the decree should not have been made. The Zamora, 32 T. L. R. 436 (Privy Council).

For discussion of the principles involved, see NOTES, p. 66.

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JUDGMENTS OPERATION AS BAR TO OTHER ACTIONS - JUDGMENT ON INTERPLEADER BY GARNISHEE AS BAR TO ACTION BY JUDGMENT CREDITOR AGAINST GARNISHEE. - One Gould became entitled to the surrender value of an insurance policy; later a judgment creditor of one Dunlevy, without serving Dunlevy, a non-resident, garnished Gould and the insurance company, alleging that Gould had assigned his interest to Dunlevy. The company interpleaded. Notice was given to Dunlevy but she did not appear. The court found that there was no assignment by Gould to Dunlevy and ordered payment to be made by the company to Gould. This was done. Dunlevy now brings an action in another state against the company for the value of the policy. Held, that she may recover. N. Y. Life Ins. Co. v. Dunlevy, 36 Sup. Ct. Rep. 613.

Garnishment is, as against the principal debtor, an action quasi in rem. Hence no personal judgment or decree can be given against a non-resident debtor who was not personally served. See 2 SHINN, ATTACHMENT AND GARNISHMENT, 607. Consequently, where without service on the principal debtor judgment is rendered in favor of the garnishee on grounds that the garnishee owes no debt, the principal debtor may nevertheless bring an action against the garnishee. Ruff v. Ruff, 85 Pa. St. 333. See Puffer v. Graves, 26 N. H. 256. See 2 SHINN, ATTACHMENT AND GARNISHMENT, § 725. A judgment on an inter

pleader filed by the garnishee can certainly be no more binding on the unserved debtor than a judgment in the garnishment suit. The principal case, therefore, seems clearly right. The result that the company must pay twice is harsh. But the situation is the same in any case where a debtor successively sued on one claim by two claimants in different jurisdictions is unable to serve both in any one jurisdiction. The better course for the debtor in such a case and for the defendant in the principal case would seem to be, not to interplead but to defend each action as it is brought.

LAW AND FACT PROVINCES OF COURT AND JURY-COMPETENCY OF WITNESSES DEPENDING ON THE MAIN ISSUE. — In a prosecution for perjury it was alleged that the defendant previously had brought a suit for divorce in Texas; that he had in that suit sworn, in order to give the court jurisdiction, that he had been resident in Texas for twelve months; and that he had not, in fact, been so resident. The divorce was granted in the prior suit. The wife was offered by the state as witness for the prosecution. The court, after viewing the former divorce decree, permitted the wife to testify. Held, that there was no error. Laird v. State, 184 S. W. 810 (Texas).

The general rule that preliminary questions of fact are for the judge is no longer questioned. But the authorities are in conflict when the preliminary question of fact is also the main issue. Thus some courts hold that such circumstance should not prevent the court from passing on the question. State v. Lee, 127 La. 1077, 54 So. 356; Hichins v. Eardley, L. R. 2 P. & D. 248; Doe v. Davies, 10 Q. B. 314. Others, however, allow the question of admissibility to go to the jury, with instructions altogether to disregard the evidence if it is proved inadmissible. Respublica v. Hevice, 3 Wheeler Cr. Cas. 505 (Pa.); Stowe v. Querner, L. R. 5 Ex. 155. There seems to be no reason for departing from the general rule. The decision of the ultimate issue is, after all, still with the jury; and any undue influence, consequent upon the expression of the court's opinion, can be averted by having the jury retire during the determination of the question. The principal case, however, presents a novel problem. In objecting to the testimony of the witness, on the ground that she is his wife, the defendant is inconsistent both with his position in the former divorce suit and with his position as to the main issue in the present trial. As regards the first inconsistency, the law appears to be that a collateral attack on a judgment for want of jurisdiction of a party thereto can only be made by one not a party to the judgment. Heffron v. Cunningham, 76 Texas 312, 13 S. W. 259; cf. Valentine v. McGrath, 52 Miss. 112. But it would seem as if the defendant's attitude in this trial must also bar his objections. For by proving the preliminary fact, that she is still his wife, he is confessing the main issue, that he committed perjury and the divorce decree was void. The state is saved from an equally anomalous position by the fact that the burden of proof in a preliminary question of fact is upon the objecting party. For all relevant evidence is prima facie admissible. See J. B. Thayer, "Presumptions and the Law of Evidence,' 3 HARV. L. REV. 141, 144. Thus the state is simply objecting to the defendant's position. It is submitted that the defendant should be prevented from assuming such inconsistent attitudes in the same trial, by something akin to estoppel.

LIBEL AND SLANDER — DAMAGES — LIABILITY FOR UNAUTHORIZED REPETITION. - Defendant slandered the plaintiff by words actionable per se. The trial judge refused to instruct the jury that in assessing damages unauthorized repetitions by third parties were not to be considered. Held, that this was not error. Southwestern Telegraph and Telephone Co. v. Long, 183 S. W. 421 (Texas). It is a well-established rule that the publisher of slander is not liable for its unauthorized repetition. Dixon v. Smith, 5 H. & N. 450; Cates v. Kellogg, 9 Ind. 506; Shurtleff v. Baker, 130 Mass. 293. See Schoepflin v. Coffey, 162 N. Y.