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no mention of tenancy by the entirety, though what is apparently a
subsequent insertion (Bk. II., p. 182) is often referred to, and
Chancellor Kent in a note (IV. Kent Com. 363) says that "Mr.
Ram, in his Outline of Tenure and Tenancy (pp. 170-174), differs



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56 COLUMBIA LAW REVIEW.

from all the great property lawyers in saying this is a species of
joint tenancy."

It would seem natural that a tenancy so nearly related to joint-
tenancy would have disappeared after the legislation directed
against the latter. It would surely seem that the Married Women's
Acts would so far destroy the fictitious identity of husband and wife,
as to eliminate tenancy by the entirety, Mander v. Harris (24 Ch.
Div., 222); Thornleyy, Thornley, 1893, 2 Ch., 229. The American
courts, however, have not generally so held (i Wash. R. Prop., Chap.
XIII). The New York cases have been particularly interesting. In
Meeker v. Wright (76 N. Y., 262), the Court was of opinion that the
status of coverture had been so far changed as to destroy tenancy by
the entirety. On this dictum Feely v. Buckley (28 Hun, 451), and
other cases, were decided, but were overruled by Berths v. Nunan
(92 N. Y. 152), which held that when husband and wife were
grantees of a freehold, they took as tenants of the entirety. Zom-
tlein V, Bram (100 N. Y. 10) held that in such case the grantee
from the wife had no claim whatever as against a subsequent grantee
from the husband and wife jointly. In Price v. Pestka (54 App.
Div., 59), decided Nov, 10, 1900, the Court said that husband and
wife took as tenants of the entirety, notwithstanding §56 N. Y.
Real Prop. Law, which declared that ** every estate granted or
devised to two or more persons in their own right shall be a tenancy
in common unless expressly declared to be in joint tenancy." .

The tenancy seems to have been destroyed in England^ Canada^
Ala.^ Me,, Mass,, Minn,, Miss, and N, H., though still remaining
in Ark, D. C, Ind., Kansas, Md., Mich., Mo., N. /., N. K,N. C,
Ore., Pa., S. C, Tenn., Vt., and W. Va.



Corporations — ^Voting Trusts. — In Taylor v. Griswold (2 J. S.
Gr., 222), 1833, the Court denied the right of a stockholder to vote
by proxy, unless power to do so had been expressly or impliedly
conferred by the Legislature, on the ground that each stockholder
is expected to exercise his individual judgment In Cone v. Russell
(48 N. J. £q., 208), 1891, this principle was applied to a proxy
irrevocable for five years, but great stress was laid on the fact that
the object to be attained was against public policy, referring to
Woodruffs. Wentworth (133 Mass., 309), 1882, where an ordinary
contract between two stockholders for a similar purpose was held
void. Whites. Tire Co, (52 N. J. Eq., 178), 1894, was an agree-
ment to transfer stock to a trustee for ten years in exchange for cer-
tificates of deposit, the trustee to vote as one of the beneficial
owners should direct. Upon transfer by the latter of his beneficial
interest the agreement was held void as to the transferee, it being-
against public policy for one without interest or title to vote the
stock (citing Shepang Voting Trust Case (60 Conn., 553), 1891, at
pages 580, 587. In Clowes v. Miller (see Recent Decisions) the
holding was substantially the same, the ag^reement being upheld only
until the transfer, but a distinction was expressly drawn between



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RECENT DECISIONS. 67

such an agreement as was there in question, and a mere *' voting
trust" This was shortly followed hy Kreisel \. 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 While v. Tire Co, Held, that where a proxy is revoc-
able, 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 distinct*
ion 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, Edilor-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 pur-
chaser 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. £. [Mass.]), Oct. 19, 1900.

This case sets a reasonable and just limit to the doctrine that it is the
duty of the a^ent 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.L 223), 1833; Arrott v. Brown (6 Whart.
[Penn.l. g), 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 Rick 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 Transporta-
tion Co. (65 N. W., 13 [Mich. J), 1895, the antagonistic interest of the agent
was proven.

Agency— Real Estate Agent— Scope of Authority.— //>/^/, 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 agents 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
piroduces a satisfactory result, since the middleman's duty may be con-
sidered 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 dear intent that the agent shall do more than
this is expressed, power to enter into a binding^ contract on behalf 6f 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.



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58 COLUMBIA LA W REVIEW.

Hay dock 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 prom-
issory note. Defendant pleaded as a counterclaim, (i) 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. Heldy
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 tue 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 pay-
ment 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)* i855. and Hatch v. Hyde (14 Vt.,
25), 1842, are to be distinguished from the present case. In both of those
cases, evidence of collateral asp-eements was excluded; but there the
agreements were pleaded as defuses in bar to the action.

Bankruptcy— Preference — Innocence of both Creditor and Debtor—
Creditor'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. 57^
and 60a. The court distinguishes this case from Electric Co, v. IVorden^
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 to
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. 57^, 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. i, page 10), May, 1900. See Notes.

Comity— Right of Foreign Receiver to Sue, — The receiver of a Min-
nesota corporation brings suit in Iowa 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. Cunning-
ham (133 U. S.. 107), 1890; Toronto General Trusts Co. v. C, ^. S*
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 essentiiu part
of the pleading. Demurrer overruled. liale 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 natiu-alize Porto



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RECENT DECISIONS. 59

Ricans, in the absence of congressional action. Hence, they are not
citizens of the United States, and have no right of suffrage. — Tne People
of tke State of New York ex rel. Frank fuarbe^ Relator^ v. TheBoard
of Inspectors^ etc, {j2 Misc, ^^4)* Oct., 1900. See notes.

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

It is not negligence per se to allow a young child to be in a city
street unattended, Chicago v. Major (18 111., 349), 1857 ; Birkett v. Ice
Co. (tio 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. Foxw. Railway Co. {iiZ Cal., 55), 1897 ; Hagatis Petition
(5 Dill., 96), 1879 ; May hew v. Burns (103 Ind., 328), 1885 ; Ry. Co. v.
Pitser (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., 502), 1870.

Corporations— Pools and Voting Trusts.— Agreement between major-
ity of stockholders of defendant corporation and certain trustees. Stock-
holders to transfer their stock and entire legal title thereto for five years,
to the trustees named, who were g^ven 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. Heldy the agreement is contrary
to public policy, in tliat it provides for management of the corporation,
during a fixed period of time, by the judspient of others than stock-
holders. Kreisel V. The Distilling Co, of America.—i^xi Chancery of
N. J.)— Oct. 1900. See notes.

Corporations — Reserved Power of Revocation of Charters — Dart-
mouth College Case— Three recent cases in Delaware have held that the
clause of the State Constitution of 183 1, 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 <S- B. S. Railway Co. (46 Atl. 12),
May, 1900; Sanu 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 corpora-
tion, 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 anv time follow a refusal to accept altera-
tions. This makes superfluous tne 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 Con-
stitution of 1897 stipulated uat revocation for abuse or non-user of cor-
porate 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



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60 COLUMBIA LAW REVIEW.

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 183 1.

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, g i, *' Corporations may be
formed under general laws. All laws passed ptu^uant 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, g^ves the right to make any such alteration or
amendment as will not impair the object of the gprant 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 distingruished 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 Q^b Trust — Effect of Transfer of Cestui Que Trust's Inter-
est. — 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 rieht 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 poucy, 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 trans-
ferred to defendant. On the other hand, it has been held that an irrevo-
cable 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 O?. (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 ag^reement
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 purchase-
price. 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



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RECENT DECISIONS. 61

(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. Mars ton
(4 DeGex. M. and G., 230), 1853. In the present case defendant signed
the writing with a fidl 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 Yorit. A statute of Missouri, where the policy was
taken out, conflicted with the Laws of New York. Held^ Missoun 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 pre-
scribe rules by which foreign corporations shall do business ; its limita-
tions upon the power of contracting are conditions of the permit and
accepted with it, except where the corporation rests its nght 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 As so. v.
New Vorhliiq 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— Exemp-
tion of Negligence.— Goods shipped in an English vessel from Buenos
A3rres for New York under bills of lading exempting carrier from liability
for negligence and stipulating that the law of uie ship*s flag should
govern the contract. In an action for damage to cargo, held^ under Har-
ter Act of 1893, Chap. 105, g I [27 Stat at L., \^{\, 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 unforttmate 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 al6ne made applicable.
In the absence of any statute the result would probably have been differ-
ent \see remarks of Quay,], t 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 stip-
ulation for foreign law or not. The Brantford City (29 F. R. 373)i
1886 ; Lewisohn v. Nafl S. S. Co. (56 F. R. 602), 1893 ; The Energia
(56 F. R. 124), 1893 ; The Guild Hall {s^ F. R. 796), 1893. There was.
nowever, a strong case the other way in The Oranmore {2^ F. R.^
922), 1885.

Master and Servant — Duty to Instruct — Assumption of Risk.—
Plaintiff had been assi^ed to duty as a regpidar 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 oeing apparent because of such inexperience, the risk was not
assumed. Louisville &* N. Ry. Co. v. Miller (10^ Fed. 124). October 2,
1900.

An identical state of facts arose and this principle was applied in the
///. 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,



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62 COLUMBIA LA W REVIEW,

Mississippi, Wisconsin, Maine and Texas. Contra^ Dy singer vs. Railway
Co. (93 Mich., 646). 1892. McDermott v. R, R, Co. (56 Kas. 319), 1899.

Mortgages— Future Advances— Priority of Lien.— A mortgage recited
it was given to secure a certain note, and in case grantor became further
indebted to grantee, to secure other notes to be given by him. There-
after mortgagee received of mortgagor another note for sums lent after
first mortgage, and a new mortgage to secure it. Between dates of the
two mortgages, one King obtained mechanics' lien on premises without
knowledge of any transactions except as appeared by first mortgage.
Mortgagee had no knowledge of King's employment. Held^ as against
King the second mortgage was ineffectual, and the first secured nothing
but money lent before its execution. The mortgage should have shown
an agiieement to make the future advances and named amount to which
they might be made. No duty of inquiry rested on King. Balch v.
Chaffee et aL (47 AtL 327). Sup. Ct. of Conn., Nov. i, igoo.



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