3

however briefly,2 and is properly served, he may be subjected to the jurisdiction of the courts of that sovereign. But in order to prevent the use of judicial machinery from defeating the very purpose of its existence, the courts have held certain persons indispensable to judicial proceedings privileged from process. It is essential that these persons be free to attend the business of the courts, and, clearly, their presence should not be rendered unavailable by the court's own process. From early times, suitors and witnesses were privileged from arrest, eundo, morando, et redeundo. A similar exemption has been enjoyed by members of Parliament 5 summoned by the King's writ since the days when Parliament was still regarded as a court. After the legislative and judicial functions of government were definitely localized the privilege of legislators was continued by statute in England," and is provided for generally by constitutional provisions in the United States. The immunity from arrest existed not only in criminal cases but also in civil cases when the seizure of the person was the normal mode of bringing a defendant before a court. Where physical restraint was not sought the reason for the privilege no longer remained. Consequently, civil actions unaccompanied by arrest did not violate the privilege of members of Parliament,10 or parties and witnesses, and, while it might constitute contempt to serve process in the presence of the court," the defendant could not abate the suit.12 To-day, since arrest is no longer the ordinary means for beginning suit, legislators are not exempt from service of summons 13 and resident suitors and witnesses enjoy only the protection afforded by the dignity of the court.14

2 Mason v. Connors, 129 Fed. 831 (1904); Alley v. Caspari, 80 Me. 234, 14 Atl. ́12 (1888); Peabody v. Hamilton, 106 Mass. 217 (1870).

3 Of course it would be unfair to exercise jurisdiction over persons brought into the state by the fraud or force of the plaintiff. Williams v. Reed, 29 N. J. L. 385 (1862). But there is no reason why this should not be done if the plaintiff is innocent of any wrong. Taylor, petitioner, 29 R. I. 129, 69 Atl. 553 (1908). It is no objection that the defendant is in jail. Ramsay v. M'Donald, 1 W. Bl. 30 (1748); White v. Underwood, 135 N. C. 25, 34 S. E. 104 (1899); Platner v. Sherwood, 6 Johns. Ch. (N. Y.) 118 (1822).

I

See VINER, ABRIDGMENT, Tit. "Privilege," B. pl. 3 (Party); C. pl. 16 (Witness). 5 "The privilege rests on the supreme necessity of attending the business of Parliament, the King's highest court." 3 STUBBS, CONST. HIST. OF ENG., 495.

See MCILWAIN, THE HIGH COURT OF PARLIAMENT AND ITS SUPREMACY, chap. 3. Cf. "A prayer for the High Court of Parliament," BOOK OF COMMON PRAYER. 7 Act 10 GEO. III, c. 50.

8 U. S. CONST., Art. I, sec. 6, para. 1; 1 STIM. AM. St. Law, 68.

9 See 3 BLACKSTONE, COMMENTARIES, 282.

10 Benyon v. Evelyn, O. Bridg. 324 (1664). " Cole v. Hawkins, 2 Str. 1094 (1738). 12 Poole v. Gould, 1 H. & N. 99 (1856); Flechter v. Franko, 21 N. Y. Civ. Pro. 34, 15 N. Y. Supp. 674 (1891). See VINER, ABRIDGMENT, Tit. "Privilege," B. Pl. 24. See also Alderson, JUDICIAL WRITS, § 117.

13 A few states by constitutional provision have extended the common-law immunity from arrest to cover service of civil process. See COOLEY, CONST. LIMITATIONS, 5 ed., p. 161. Two jurisdictions have unjustifiably reached the same result by judicial interpretation. Bolton v. Martin, 1 Dall. (Pa.) 296 (1788); Miner v. Markham, 28 Fed. (Wis.) 387 (1886). But the weight of authority is contra. Howard ". Trust Co., 12 App. D. C. 222 (1898); Peters v. League, 13 Md. 58 (1858); Rhodes v. Walsh, 55 Minn. 542, 57 N. W. 212 (1893); Berlet v. Weary, 67 Neb. 375, 93 N. W. 238 (1903); Bartlett v. Blair, 68 N. H. 232, 38 Atl. 1004 (1895); Worth v. Norton, 56 S. C. 56, 33 S. E. 792 (1899).

14 But see Cameron v. Roberts, 87 Wis. 291, 58 N. W. 376 (1894), (holding the service void).

But special considerations govern the case of non-residents. If the court requires their presence, and will be deprived of it unless they are privileged in civil suits, a perfect case for privilege is made out. Material witnesses frequently reside outside the jurisdiction, and since they cannot be subpoenaed and their presence is necessary for the proper adjudication of controversies, no obstacles should be put in the way of their voluntary appearance. Therefore in accordance with the practical needs of the situation, non-resident witnesses have everywhere been held privileged from service of summons while in a state for the purpose of attending judicial proceedings.15 The majority of states 16 have the same rule for non-resident parties.17 But it would seem that it is the party's own interest, whether he be plaintiff or defendant, and not the court's, which demands his presence.18 The court will not be hampered by his absence, nor will the possibility of other actions keep him away if it is to his advantage to come into a state. Hence the practical necessity for the privilege does not exist. The argument found in the cases granting the immunity, that "the courts should be open and accessible to all" 19 cuts both ways and leads to the conclusion that non-resident parties should be amenable to, rather than privileged from, service of process. In the case of legislators the privilege is granted by the sovereign only to its own lawmakers and can obviously have no extraterritorial effect. Within the territory of the sovereign it is equally violated by arrest at home or in another county, or, under the Federal Constitution, in another state. Even in the few jurisdictions where the immunity extends to civil process, no distinction has been made between service at the residence and elsewhere.20

This analysis of the privilege as the privilege of the court has been disregarded in the recent case of Filer v. M'Cornick," holding exempt from process a non-resident temporarily in the state on public business. The president of a bank, which was a stockholder in the Federal Reserve

15 Walpole v. Alexander, 3 Doug. 45 (1782); Chittenden v. Carter, 82 Conn. 585, 74 Atl. 884 (1909); Fidelity and Cas. Co., v. Everett, 97 Ga. 787, 25 S. E. 734 (1896); Mayer v. Nelson, 54 Neb. 434, 74 N. W. 841 (1898); Mulhearne v. Press Pub. Co., 53 N. J. L. 153, 21 Atl. 186 (1890).

16 Stewart v. Ramsey, 242 U. S. 128 (1916); Hale v. Wharton, 73 Fed. 739 (1896); Halsey v. Stewart, 4 N. J. L. 426 (1817); Matthews v. Tufts, 87 N. Y. 568 (1882); Andrews v. Lembeck, 46 Ohio St. 38 (1888); Partridge v. Powell, 180 Pa. St. 22, 36 Atl. 419 (1897).

17 To extend the privilege to defendants brought into the state by extradition is to lose sight of the reason for the rule. Reid v. Ham, 54 Minn. 305, 56 N. W. 35 (1893); Netograph Man. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962 (1910). Where the privilege is granted it rests upon interstate courtesy. Martin v. Bacon, 76 Ark. 158, 88 S. W. 863 (1905); Compton et al. v. Wilder, 40 Ohio St. 130 (1883). The express provisions of treaties affect the case of a person extradited from a foreign country. In re Reinitz, 39 Fed. 204 (1889).

18 The following cases denied the privilege to non-resident plaintiffs: Bishop v. Vose, 27 Conn. 1 (1858); Guyen v. McDaneld, 4 Ida. 605, 43 Pac. 74 (1895); Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29 (1893); Tiedeman v. Tiedeman, 35 Nev. 259, 129 Pac. 313 (1912); Baldwin v. Emerson, 16 R. I. 304, 15-Atl. 85 (1888). See Chittenden v. Carter, supra. One jurisdiction denies the privilege to non-resident defendants. Ellis. De Garmo, 17 R. I. 715, 24 Atl. 579 (1892); Capewell v. Sipe, 17 R. I. 475, 23 Atl. 14 (1891).

19 Halsey v. Stewart, supra, per Southard, J.

20 Berlet v. Weary, supra, and cases cited in note 13.

11260 Fed. 309 (1919). See RECENT CASES, imfra, p. 734.

Bank, was called by the governor of such bank to attend a conference in another state to discuss means of selling treasury certificates for war purposes. While in the other state he was served with process. The court on motion quashed the service. This decision rests the privilege upon the policy of making public service attractive. It is submitted that responsible men will not be deterred from public duty by a fear of suits in strange jurisdictions. The privilege from process exists solely to prevent the clogging of judicial business,22 and it is the duty of the court to exercise the powers delegated to it and to refrain therefrom only when required to do so by the exigencies of judicial machinery. When it becomes desirable to have a different set of rules for the enforcement of the personal obligations of men in public life, the legislatures doubtless will enact appropriate legislation.

WILLS

RECENT CASES

PARTIAL REVOCATION OF A WILL BY ADOPTION OF

ADOPTION A CHILD. - A testatrix adopted a child in the manner prescribed by statute. The statute provided that the parties to the adoption should have all the rights and duties incident to the natural relation of parent and child (1915 KAN. GEN. STAT., §§ 6362, 6363). The Statute of Wills provided for the partial revocation of the will of a parent in favor of a child born after the execution of the will (1915 KAN. GEN. STAT., § 11795). Held, that the adoption effected a partial revocation of the will. Dreyer v. Schrick, 185 Pac. 30 (Kan.).

At common law, a will disposing of all the testator's property, and making no provision for the future wife and child, was revoked by subsequent marriage and the birth of a child. Marston v. Fox, 8 A. & E. 14; Glascott v. Bragg, III Wis. 605, 87 N. W. 853. Since the basis of the rule is the change in the testator's circumstances, the same result has been reached when the child was adopted instead of born into the family. Glascott v. Bragg, supra. Under such a statute of adoption, as in the principal case, an adopted child has been held to come within the term "children" as used in a statute of descent. Lanferman v. Vanzile, 150 Ky. 751, 150 S. W. 1008. So also as to "issue" in statutes of distribution. Scott v. Scott, 247 Fed. 976; Buckley v. Frazier, 153 Mass. 525, 27 N. E. 768. The same result has been reached where the words were "lineal descendants." State v. Yturria, 204 S. W. (Tex.) 315; In re Cook's Estate, 187 N. Y. 253, 79 N. E. 991. In accord with the principal case, it has been held, that, for the purpose of partial revocation of wills, children adopted are children "born." Bourne v. Downey, 184 App. Div. 476, 171 N. Y. Supp. 264; In re Sandon's Will, 123 Wis. 603, 101 N. W. 1089. But there is also authority to the contrary. Goldstein v. Hammell, 236 Pa. 305, 84 Atl. 772; Evans v. Evans, 186 S. W. (Tex.) 815. The view of the principal case seems correct, since the adopted child, though it is not a child "born" to the testator, is given by statute all the rights, interests, and duties of such a child. The result should not be affected by the fact that the adoption statute was enacted prior to the statute to be construed. Buckley v. Frazier, supra; Scott v. Scott, supra.

22 “The reason for this (denial of privilege) is that such a summons amounting simply to notice does not obstruct the administration of justice nor interfere with the attendance of a party to a suit then on trial." Ellis v. De Garmo, supra, per Stinnes, J.

AGENCY-PRINCIPAL'S LIABILITY TO THIRD PERSONS IN TORT - WHO IS LIABLE FOR NEGLIGENCE OF DRIVER OF HIRED MOTOR VEHICLE. The defendant hired an automobile and a chauffeur from A for three months. While driving the defendant, the chauffeur negligently ran over plaintiff's intestate. Held, that the defendant is not liable. McNamara v. Leipzig, 125 N. E. 244 (N. Y.).

The defendant hired an auto-truck and a chauffeur from A for use in his business. The chauffeur, while engaged in delivery work for the defendant, negligently injured the plaintiff. Held, that the defendant is liable. Finegan v. Piercy Contracting Co., 178 N. Y. Supp. 785 (App. Div.).

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For a discussion of these cases, see NOTES, p. 714, supra.

BANKRUPTCY

- PROPERTY PASSING TO TRUSTEE-LEASEHOLD INTERESTS - LANDLORD'S RIGHT OF ENTRY. The landlord, under a lease providing for a right of entry for condition broken, becomes entitled to enter for failure to pay rent and royalties. The tenant becomes bankrupt, and the landlord then seeks to enter against the bankrupt's trustee, in possession. Held, that he may do so. Matter of Elk Brook Coal Co., 44 Am. B. R. 283 (Dist. Ct. Pa., 1919). For a discussion of this case, see NOTES, p. 709, supra.

BANKRUPTCY - PROPERTY PASSING TO TRUSTEE-VOLUNTARY PROCEEDINGS INSTITUTED IMMEDIATELY PRIOR TO AN EXPECTED INHERITANCE. An insolvent debtor filed a voluntary petition in bankruptcy knowing that his mother, who had made a will in his favor, could live only a few days. A creditor moved to set aside the adjudication on the ground that this was fraudulent. Held, that the motion be denied. Matter of Swift, 44 Am. B. R. 211 (Dist. Ct. N. D. Ga.).

It was one of the prime purposes of the Bankruptcy Act to enable an honest insolvent debtor to be discharged from creditors' claims against him upon giving up all his non-exempt property. And the Act does not restrict the filing of petitions to cases where the debtor has no hope of ever being solvent again. If the court has jurisdiction, no creditor has any standing to object to a voluntary petition by a natural person. In re Carlton, 115 Fed. 246; In re Ives, 113 Fed. 911. If any injustice is done in the principal case, it seems to flow from the fact that the creditor derives no benefit from the debtor's spes successionis which had become almost a certainty at the time of the petition. This result, however, follows from the doctrine that a spes, be it ever so certain of fulfillment, is not property, and hence that it does not pass to the trustee in bankruptcy. Moth v. Frome, 1 Amb. 394. But this doctrine of the nature of a spes is not confined to courts of bankruptcy. Thus an expectancy is not property which can be the subject of a trust, or which can be reached by a creditor's bill. In re Ellenborough, [1903] 1 Ch. 697; Smith v. Kearney, 2 Barb. Ch. 533. Perhaps the fact that no previous decision seems to have raised the point involved in the principal case shows that it is not one of such grave practical importance as to demand the immediate change of our bankruptcy law. As the law stands, the decision seems unassailable.

BANKS AND BANKING NATIONAL BANK ACT-USURY CONSTRUCTION OF NATIONAL BANK ACT AUTHORIZING INTEREST AT RATE ALLOWED BY LAWS OF THE STATE. The defendant national bank discounted the plaintiff's short-time note at eight per cent, taking interest in advance. The National Bank Act provides that national banks may charge interest, "at the rate allowed by the laws of the state where the bank is located," and declares that knowingly charging a greater rate is usury. (REV. STAT., §§ 5197, 5198.) Eight per cent was the maximum interest rate allowed by statute in Georgia, where the defendant bank was located (1910, GA. CODE, §§ 3426, 3436); but

the Georgia Supreme Court had held that taking interest upon short-time paper in advance at eight per cent was usurious. (Loganville Banking Co. v. Forrester, 143 Ga. 302, 84 S. E. 961.) The plaintiff, having sued in the state court to recover the penalty allowed by the National Bank Act, on certiorari, Held, that the transaction does not violate the statute. Pitney, Clarke, and Brandeis, JJ., dissenting. Evans v. National Bank of Savannah, U. S. Sup. Ct., No. 67, October Term, 1919.

The sole question seems to be what is meant by the words of the National Bank Act, "at the rate of interest allowed by the laws of the state where the bank is located." In determining what are the laws of a state, the Supreme Court usually follows the latest state decision upon the question. Union National Bank v. Louisville, Etc. R. R. Co., 163 U. S. 325; Bucher v. Cheshire R. R. Co., 125 U. S. 555. The "rate of interest" has been construed to include the mode of charging interest. Where a state statute declared that interest compounded oftener than annually was usury, a note bearing interest compounded semi-annually was held usurious under the National Bank Act, although the total interest did not exceed the maximum allowed by State law. Citizens National Bank v. Donnell, 195 U. S. 369. Furthermore, the obvious intent of the framers of the National Bank Act was that national banks should charge as much but not more than state banks. In favor of the principal case, it may be said that, contrary to the Georgia case, the weight of authority and long-established business custom is that the taking of interest in advance at the maximum rate is not usury. Bank of Newport v. Cook, 60 Ark. 288, 30 S. W. 35; Stark & Wales v. Coffin, 105 Mass. 328. But the majority opinion does not purport to question the correctness of the Georgia decision. Thus the dissenting opinion seems the better one.

BANKS AND BANKING-NATIONAL BANKS POWER OF NATIONAL BANK TO ACQUIRE AND OPERATE A STREET RAILWAY. A street railway was built over certain streets in a village under a twenty-five year franchise granted by the village. The railway was twice placed in the hands of a receiver, and under the second receivership was sold to a national bank, which bought in the property in order to protect the bonds of the company which it owned. The bank continued to operate the road for a short time. Failing to find a purchaser, it was about to discontinue operation and dismantle the road. The village brought suit to enjoin the discontinuance. The bank pleaded its lack of power to assume the obligations of the franchise to operate the road. Held, that the bank be authorized to discontinue operation and dismantle the road. Gress v. Village of Ft. Loramie, 125 N. E. 112 (Ohio). For a discussion of this case, see NOTES, p. 718, supra.

CONFLICT OF LAWS - CAPACITY - NOTE MADE BY MARRIED WOMAN IN ONE STATE PAYABLE IN ANOTHER. An action was brought in Virginia upon a promissory note executed and delivered by a married woman in Tennessee, where she was without capacity to contract. The note was payable in Virginia, where the disabilities of coverture had been removed. Held, that coverture is no defense. Poole v. Perkins, 101 S. E. 240 (Va.).

A fair degree of unanimity has obtained with reference to the question of the controlling law as to capacity to enter into a personal contract. In the United States, in case of conflict between the law of the domicile and the law of the place where the contract is made, the question is resolved with reference to the latter. Bell v. Packard, 69 Me. 105; Milliken v. Pratt, 125 Mass. 374. And as the existence of a contract must depend, in our system of territorial law, upon the effect conferred by the law in force where the agreement is entered upon, the lex loci contractus controls, as to capacity, in case of con