flict between that law and the law of the place of performance. Union Nat. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672; Hager v. Nat. Ger. Am. Bank, 105 Ga. 116, 31 S. E. 141. Contra, Mayer v. Roche, 77 N. J. L. 681, 75 Atl. 235. The court seems, in the instant case, to have failed to distinguish clearly between capacity and the broader question of the validity of contracts generally - such as the effect of particular provisions of a contract which admittedly exists. There have been various holdings as to the latter: that the governing law is that of the place of making, of the place of performance, or of the place intended by the parties to the contract. See Joseph H. Beale, "What Law Governs the Validity of a Contract," 23 HARV. L. REV., 79-103, 194-208. And there is considerable force in the contention that this question, too, should be governed by the law of the place where the agreement is made. See Beale, 23 HARV. L. REV., 270-272. Considerations of convenience have doubtless influenced the court in the principal case, but the decision can hardly be justi-, fied on principle or authority.

CONSTITUTIONAL LAW - CONFLICT OF LAws STATUTE TAKING AWAY RIGHT OF ACTION ARISING IN ANOTHER STATE FOR DEATH BY WRONGFUL Аст. The plaintiff's intestate was killed in Ohio through the negligence of the defendant, the Ohio statutes giving a right of action to the administrator for death by wrongful act. The plaintiff brought this action in Illinois under a statute allowing suits for the recovery of damages for such a death even though occurring without the state. Pending an appeal and before any final judgment, the Illinois statute was amended so as to forbid the institution or prosecution of any such action arising outside of the state, though allowing actions for such deaths within the state. Held, that the plaintiff may not recover. Wall v. Chesapeake & O. Ry. Co., 125 N. E. 20 (Ill.).

A statute is not brought into conflict with the Fourteenth Amendment by the mere fact that it is retrospective in its operation. League v. Texas, 184 U. S. 156. But vested rights of property, regardless of their source, whether contractual or otherwise, come within its protection. See Pritchard v. Norton, 106 U. S. 124, 132. See also TAYLOR, DUE PROCESS OF LAW, §§ 224 et seq. A statute may deprive a person of his property as effectually by taking away all means of enforcement as by denying its existence. Ettor v. Tacoma, 228 U. S. 148. Thus a repealing act which takes away all remedy for a right of action for injuries to property is unconstitutional. Ettor v. Tacoma, supra. It has been held, however, that there can be no vested right in a claim of damages for personal injuries or death. Carson v. Gore-Meenan Co., 229 Fed. 765. But this seems too broad. Where such a right of action is assignable or survives, it would seem clearly to be "property," even though not reduced to judgment; and a statute taking away such a local cause of action would be unconstitutional. See Louisiana v. New Orleans, 109 U. S. 285, 291; Angle v. Chicago, &c. Ry., 151 U. S. 1, 19. The Constitution requires that any policy a state may adopt as to the limits of the jurisdiction of its courts must operate in the same way on its own citizens and those of other states. Blake v. McClung, 172 U. S. 239. But in other respects each state may determine how far its courts, having jurisdiction of the parties, shall hear and decide transitory actions, where the cause of action has arisen outside of the state. Chambers v. Baltimore & O. R. Co., 207 U. S. 142; St. Louis, &c. R. Co. v. Taylor, 210 U. S. 281. See 17 HARV. L. REV. 54. Accordingly, the principal case does not involve any question of "due process" but merely illustrates the old principle that the laws of one state can have no extraterritorial effect except by the permission of other states. Paul v. Virginia, 75 U. S. (8 Wall.) 168; Huntington v. Attrill, 146 U. S. 657. See 32 HARV. L. REV. 172. It would seem, however, that the court might have avoided a harsh result by so interpreting the statute as to avoid retrospective operation.

DAMAGES MITIGATION OF DAMAGES - EFFECT OF VIOLATION OF A CONTRACT DUTY OWED TO A THIRD PERSON. - The plaintiff sent a message by the defendant company, authorizing his agents to sell certain land at $55 an acre. The message as delivered read $50 an acre. The agents made a contract of sale at the lower figure, which provided for a deposit of $500 in a bank to be paid the buyer as his damages, "if default was made by the seller." The plaintiff conveyed the land at the contract price, which was $800 less than he would have received at the price he quoted to the defendant. Held, that the plaintiff can recover only $500. Western Union Telegraph Co. v. Southwick, 214 S. W. (Tex. 987).

The principle is well established in the law of damages that a plaintiff cannot recover for any injury which he could reasonably have avoided. Western Union Telegraph Co. v. Williams, 57 Tex. Civ. App. 267, 122 S. W. 280; Postal Telegraph & Cable Co. v. Schaefer, 110 Ky. 907, 62 S. W. 1119. But a plaintiff is not required to violate the rights of third parties in order to mitigate the injury to himself. Kankakee, etc. R. R. Co. v. Horan, 23 Ill. App. 259. See Leonard v. New York Telegraph Co., 41 N. Y. 544, 566. Thus in the principal case it becomes essential to decide whether the contract was in the alternative or not. The use of the word "default" would seem to indicate an intent to bind the vendor to a single obligation, with liquidated damages for a breach thereof. See Ropes v. Upton, 125 Mass. 258, 261. Judged by the constructions in the decided cases the contract in the principal case does not seem to be in the alternative. Howard v. Hopkyns, 2 Atk. 371; Zimmerman v. Gerzog, 13 N. Y. App. Div. 210, 43 N. Y. Supp. 339; Dills v. Doebler, 62 Conn. 366, 26 Atl. 398. Hence, the plaintiff was not required to break his contract with the purchaser and surrender his deposit, and should have recovered $800. The fact that the deposit was in the hands of a third party makes no difference. See 29 HARV. L. REV. 454.

DIVORCE CUSTODY AND SUPPORT OF CHILDREN - WHAT LAW CREATES AND ENFORCES OBLIGATION OF A DIVORCED FATHER TO SUPPORT CHILDREN. An Illinois court divorced the plaintiff from her husband and gave her the custody of the children, but made no provision for their maintenance. Subsequently the plaintiff and her children became residents of Missouri, as did the father also. On the death of the latter, the plaintiff sued his executor in Missouri for the maintenance of the children since divorce. Held, that she can recover. Winner v. Shucart, 215 S. W. 905 (Mo.).

When the parents are divorced, some courts, with or without statutory permission, impose on the father the duty of supporting the children even though their custody has been granted to the mother. Plaster v. Plaster, 47 Ill. 290; Gibson v. Gibson, 18 Wash. 489, 51 Pac. 1041. Contra, Ramsey v. Ramsey, 121 Ind. 215, 23 N. E. 69. While the obligation to support is often made a part of the divorce decree, it may be imposed on a subsequent application, provided the court granting the divorce still has personal jurisdiction over the parties. McKay v. Superior Court, 120 Cal. 143, 52 Pac. 147; Gibson v. Gibson, supra. Such an alimentary obligation is not penal in its nature; the court imposes it on the father for the sake of the child and to prevent the burden of its support from falling on the state. Such an obligation, therefore, should be created and enforced at the domicile of the child or his place of residence for the time being, for no other sovereign has any interest in his support. See J. H. Beale, "The Progress of the Law, 1918-1919 - The Conflict of Laws," 33 HARV. L. REV. 14-15. Similarly, if a statute of an adult pauper's domicile imposes an alimentary obligation on the parent which the law of the latter's domicile does not, only the courts of the pauper's domicile should enforce performance of the obligation. See Coldingham Parish Council v. Smith, [1918] 2 K. B. 90. Courts should reach a similar result, as did the principal case, when the new duty is judicially imposed.

DIVORCE - JUDICIAL SEPARATION - PETITIONER'S ADULTERY AS DEFENSE EFFECT OF RESPONDENT'S CONNIVANCE. — A decree of dissolution on the ground of the wife's adultery was refused because of the petitioner's own conduct conducing to her acts. The wife then sought a judicial separation on the ground of cruelty. The Divorce Court granted the decree. On appeal, held, that the wife's adultery is an absolute bar to a decree of judicial separation. Everett v. Everett, 121 L. T. R. 503 (Court of Appeal).

The petitioner on his return from foreign service found his wife living in adultery under such conditions as to endanger the health and morals of his own children by her. He removed the children to the home of a friend, with whom he later had intercourse. He desires a divorce in order to marry this second woman, who appears to be making a good home for his children. A decree nisi for dissolution having been granted, the King's Proctor intervened, asking that the decree be dismissed. But the court in the exercise of its discretion held, that the decree be made absolute. Wilson v. Wilson, 36 T. L. R. 91 (Prob. Div. & Adm. Div.).

The respondent wife was incited to adultery by the petitioner, who himself was guilty of adultery down to the time of the petition. The court being convinced that the respondent will later marry the corespondent, who appears worthy and sober, held, that a decree nisi issue and the respondent be given custody of the children. Marven v. Marven, 36 T. L. R. 106 (Prob. Div. & Adm. Div.).

Adultery of the petitioner is ordinarily a bar to a decree for judicial separation. Hawkins v. Hawkins, 193 N. Y. 409, 86 N. E. 468; Otway v. Otway, 13 P. D. 141. But where the petitioner's adultery has been condoned by the respondent there is authority under which the Court of Appeal in the Everett case might have granted the decree of separation. Anichini v. Anichini, 2 Curt. 210. See 20 & 21 VICT. c. 85, § 22. Cf. DRAFT ACT Com'rs UnifoRM STATE LAWS, ANNULMENT OF MARRIAGE & DIVORCE, § 5 (1907). Failure to do so drives the wife back to a life of prostitution under the husband's orders. A better result is reached by the lower court in the other two cases where decrees of dissolution issued. For in most jurisdictions after such an absolute divorce remarriage is open even to guilty parties. See 20 & 21 VICT. c. 85, 57. See also STIMSON, AM. STAT. LAW, § 6241; BISHOP, MAR., DIV. & SEP., 706. But see People v. Baker, 76 N. Y. 78. Moreover, there is authority to support these two decisions where the petitioner's adultery was condoned. Cumming v. Cumming, 135 Mass. 386; Jones v. Jones, 18 N. J. Eq. 33; Burdon v. Burdon, [1901] P. 52. See TIFFANY, DOM. REL., § 108. Such a plea as adultery by way of recrimination fails when it does not itself show sufficient grounds for a divorce. House v. House, 131 N. C. 140, 42 S. E. 546. Certainly the connivance appearing in the principal cases should be as destructive to a recriminatory plea as mere condonation.

EQUITY JURISDICTION

- RIGHT OF A MINOR CHILD TO MAINTENANCE BY FATHER. The defendant had abandoned his wife and minor children. The children, by their next friend, bring a bill in equity requesting a monthly allowance for maintenance, and that the same be made a lien upon the defendant's property. Held, that the bill be dismissed. Rawlings v. Rawlings, 83 So. 146 (Miss.).

At common law the duty of a father to support his infant child was regarded as a mere moral obligation. See Shelton v. Springett, 11 C. B. 452, 455; Bazeley v. Forder, L. R. 3 Q. B. 559, 565. This duty has been enforced indirectly by holding the father liable, by a fiction of implied authority to those who supply the children with necessaries. Walters v. Niederstadt, 194 S. W. 514 (Mo.). See 10 HARV. L. REV. 454. In equity the court may decree maintenance out of the child's separate estate if the father is unable to provide satisfactory

support. Bedford v. Bedford, 136 Ill. 354, 26 N. E. 662. See Buckworth v. Buckworth, 1 Cox, 80, 81. But in no instance would equity compel a father to maintain his child, for no legal obligation was recognized. But more recently many courts have declared that the father is under a legal duty to support his minor children. Porter v. Powell, 79 Iowa 151, 44 N. W. 295. See Treasurer & Receiver General v. Sermini, 229 Mass. 248, 251, 118 N. E. 331. See also 9 HARV. L. REV. 488. The dissenting opinion in the principal case contends that equity should act, since the law gives no remedy for the violation of this new legal duty. But it would seem that this is not a relative duty but an absolute one, for which there is properly no correlative legal right. See I AUSTIN, JURISPRUDENCE, 4 ed., 67, 413; Langdell, "A Brief Survey of Equity Jurisdiction," I HARV. L. REV. 55. The law is well settled in accordance with the majority opinion that equity will not order a father to provide maintenance in the absence of an express statutory enactment. Huke v. Huke, 44 Mo. App. 308. See Alling v. Alling, 52 N. J. Eq. 92, 96; 27 Atl. 655, 657. The dissent is interesting as illustrative of a recurring tendency to identify law and morals.

EQUITY - PROCEDURE · CROSSBILL IN EQUITY ADDING NEW PARTIES. — The assignee of a real estate mortgage brought action thereon against a purchaser of the property who had assumed the debt. The defendant filed a counterclaim against the plaintiff for damages resulting from fraud practiced in inducing him to purchase the property, and a demand on the same account against several new parties alleged to have participated in the fraud. The Kansas statutes allowed new parties to be brought in by counterclaim, but the defendant had not complied with the statutory provisions. (1915 Kan. GEN. STAT., §§ 6930, 6991.) Held, that the parties were properly joined. Davies v. Lutz, 185 Pac. 45 (Kan.).

The flat rule that new parties may never be joined by a crossbill has been laid down in many cases, on the theory that the defendant may bring in only parties necessary to the complaint, and this he must do by objection for nonjoinder. Patton v. Marshall, 173 Fed. 350; Richman v. Donnell, 53 N. J. Eq. 32, 30 Atl. 533 (discredited by Green v. Stone, 54 N. J. Eq. 387, 34 Atl. 1099); Perea v. Harrison, 7 N. M. 666, 41 Pac. 529. There is a tendency in the later cases to allow new parties by crossbill when, as in the principal case, the new parties are necessary to the relief sought against the complainant by the crossbill, or to a complete determination of the questions raised by it. Ülman v. Iaeger, 155 Fed. 1011; Indian River Mfg. Co. v. Wooten, 48 Fla. 271, 37 So. 731; Green v. Stone, supra. A crossbill which sets up matter not pertinent to that of the original bill and seeks no relief against the complainant, should be dismissed for want of equity. Andrews v. Hobson's Adm'r, 23 Ala. 219; Daniel v. Morrison, 6 Dana, 182; Josey v. Rogers, 13 Ga. 478. This on principle should be the test of any crossbill, regardless of whether new parties are sought to be added by it or not. In the majority of the cases laying down the rule that new parties may never be thus added, the same result would have been reached under this test. It was easy for the court in the principal case to reach the proper result because of the liberalization of the common-law rule as to new parties in the Kansas statutes cited. Cf. 31 HARV. L. REV. 1034.

FOREIGN CORPORATIONS VALIDITY OF SERVICE ON AGENT FOR FOREIGN CAUSE OF ACTION AFTER WITHDRAWAL FROM STATE. - A foreign corporation, doing business in New York, appointed an agent for receiving service on it, as required by statute. (CODE CIV. PRO., § 1780; GEN. CORP. L. §§ 16, 432.) Prior to this suit, the corporation had withdrawn from the state, but had failed to revoke the agent's authority. The plaintiff served the agent on a

cause of action arising outside of the state. Held, that such service is invalid. Chipman, Limited, v. T. B. Jeffery Co., 260 Fed. 856 (Dist. Ct. S. D. N. Y.). Statutes are common requiring foreign corporations to designate some local agent upon whom process may be served. These are unquestionably valid. In re Louisville Underwriters, 134 U. S. 488; Lafayette Ins. Co. v. French, 18 How. (U. S.) 404; N. E. Mutual Life Ins. Co. v. Woodworth, 111 U. S. 138. Statutes may insist on the maintenance of such an agent as long as outstanding liabilities incurred in the state exist, irrespective of the continuance of business therein. Groel v. United Electric Co., 69 N. J. Eq. 397, 60 Atl. 822. See 19 HARV. L. REV. 52. It may also be provided that such agent shall be liable to service in actions arising without the state. Bagdon v. Phil. & Reading Coal Co., 217 N. Y. 432, 111 N. E. 1075; Smolik v. Phil. & Reading Coal Co., 222 Fed. 148. See 29 HARV. L. REV. 880. The basis of consent to such provisions is the transaction of business within the state. Though the corporation should not be allowed to escape liability resulting from the business transacted within the jurisdiction by withdrawing its business therefrom, justice does not require that liability to suit continue with respect to actions arising without the jurisdiction. Hence, even though the statute requires the appointment of an "irrevocable agent," such agency may be effectively revoked so as to invalidate service on such person as to foreign causes of action. Mutual R. F. L. Ass'n v. Boyer, 62 Kan. 31, 61 Pac. 387. Hunter v. Mutual Reserve Life Ins. Co. et al., 218 U. S. 573. See also Williams v. Mutual R. F. L. Ass'n, 145 N. C. 128, 58 S. E. 802. Since it is the withdrawal of business and not the formal revocation of the agency which takes such causes of action out of the jurisdiction of this court, it was correctly decided in the principal case that the lack of such revocation is immaterial. See Mutual R. F. L. Ass'n v. Boyer, supra; BEALE, FOREIGN CORP., §§ 279 et seq.

FRAUDULENT CONVEYANCES BULK SALES ACTS - WHAT IS MERCHANDISE UNDER A BULK SALES STATUTE. - The plaintiff was a creditor of one of the defendants. The latter sold his restaurant, together with all the food and fixtures therein, to the other defendant. Under a statute making the sale of a large part or the whole of a stock of merchandise void against creditors unless certain conditions are fulfilled, the plaintiff sought to have the property subjected to the payment of the debt due him. Held, that it is not subject to the payment of the debt. Swift & Co. v. Tempelos et al., 101 S. E. 8 (N. C.). For a discussion of the principles involved in this case see NOTES, p. 717, supra.

GARNISHMENT GARNISHEE'S RIGHT TO SET OFF CLAIMS AGAINST THE PRINCIPAL DEBTOR ACQUIRED AFTER SERVICE OF THE WRIT. The defendant bank, after it had been served with a writ of garnishment, allowed the principal debtor, one of its depositors, to draw checks for which he had no funds in the bank and later received deposits from him to cover the overdrafts. At no time between the service of the writ and the trial did the debtor's account show a balance in his favor. The bank now contends that it is not liable, as garnishee, for these deposits. Held, that the bank is liable with no right of set-off. Benni v. First National Bank of Mildred, 68 Pitts. L. J. 22. The property subject to garnishment depends upon particular statutes. In most jurisdictions, it is only such as is in the hands of the garnishee at the service of the writ. Eller v. National Motor Co., 181 Iowa, 679, 165 N. W. 64; Gillette v. Cooper, 48 Kan. 632, 30 Pac. 13. But in the principal case the statute makes the garnishee chargeable with all that comes into his possession before answer. Glazier v. Jacobs, 250 Pa. 357, 95 Atl. 532. The garnishee's right of set-off is determined independently of his liabilities. He is entitled to all set-offs existing at the time of service. Truan v. Range Power Co., 124