Mr.

ant's trains over a right of way adjoining plaintiff's premises. Justice Robinson, dissenting, says: "The complaint not only fails to state a cause of action, but also it shows that plaintiff has no cause of action. . . . In reading such a complaint the court must take judicial notice of such facts as are commonly known to intelligent persons within the jurisdiction of the court. We must take judicial notice of the fact that defendant does operate a little railroad running south from Jamestown, with small engines and light trains, and not with any such mogul engines and trains as pass over the main line of the Northern Pacific Railway. . . . In so far as the complaint asserts mere exaggerations which are known to be untrue, it should be disregarded." 15 In England v. Townley, 16 a suit for libel, Mr. Justice Robinson, dissenting, maintained that the complaint did not state a cause of action, saying: "The people are paying less and less regard to such newspaper stuff, so that no one suffers from it, and the courts are no longer disposed to regard mere exaggerations which are manifestly untrue." 17

Judicial justice implies a right to be heard, which in turn implies a right to be confronted with the facts upon which the tribunal relies in denying one's claim, and to be given an opportunity to rebut them. While an exception is made in the case of facts which are notorious,18 this does not extend to a judge's personal observation of the particular facts of a case.19 If the tribunal relies upon its own private knowledge, it in effect prejudges the plaintiff's case and denies him "due process of law." 20 Here again the dangers of discretion untrammeled by rule are obvious.

In fairness, however, it must be said that Mr. Justice Robinson's methods sometimes find their appropriate field. Thus, in questions of fact in divorce cases,21 and in questions of procedure,22 the exercise of judicial discretion, within broad limits such as "due process," appears at its best. In the case just cited the court said: "The rule of stare decisis is especially applicable to decisions on matters of procedure and practice." Mr. Justice Robinson said: "I do strenuously dissent to the building of error upon error. I concur in the result, but not in the reasoning of the court or the stare decisis." It is submitted with deference that if there is any field in which the doctrine of stare decisis is least important, it is in the field of procedure. No man can acquire a vested right in his opponent's procedural error.

On the whole, one who is in warm sympathy with legal reform may 15 Italics ours. Note the way in which Mr. Justice Robinson, after laying down the rule as to facts of common knowledge, applies it to facts derived from his personal observations.

16 174 N. W. (N. D.) 755, 758 (1919).

17 The appeal was from an order overruling a demurrer to the complaint, hence there was no evidence before the court.

18 See WIGMORE, EVIDENCE, § 2565.

19 Ibid., § 2569.

66

20 Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U. S. 88 (1913) (semble). At page 93 Mr. Justice Lamar, speaking for the court says: manifestly there is no hearing when the party does not know what evidence is offered or considered and is not given an opportunity to test, explain, or refute."

21 E. g. McBride v. McBride, 174 N. W. (N. D.) 870 (1919); Ford v. Ford, 173 N. W. (N. D.) 454 (1919).

22 Horton v. Wright, Barret & Stillwell Co., 174 N. W. (N. D.) 67 (1919).

well feel that little, if any, lasting good will be accomplished by haphazard attempts to break away from justice according to rule. Before rejecting utterly the experience of the past, legal reformers should make a careful study of the ends to be attained, and of the fields in which rule, or discretion, as the case may be, will conserve the most and sacrifice the least of the interests which the law has to secure. Only thus can the courts follow "the path of the law.23

ALIENS

RECENT CASES

NATURALIZATION OF ALIENS

STATUS IN THE BRITISH ISLES OF A PERSON NATURALIZED IN AUSTRALIA. A natural-born German emigrated from Germany in 1878 to Australia, where he resided until 1908, when he was naturalized. Later he went to England and was residing there in 1914. Failing to register as an alien, he was convicted under the provisions of the Aliens Restriction Act of 1914 (see 4 & 5 GEO. V, c. 12). Held, that the conviction was proper. The King v. Francis, Ex parte Markwald, [1918] 1 K. B. 617.

The defendant in the above case brought a proceeding in the nature of a petition for a declaration that he was not an alien. Held, that it be denied. Markwald v. The Attorney General, 36 T. L. R. 197.

For a discussion of these cases see NOTES, p. 962, supra.

AGENCY-BROKERS

SECRET AGREEMENT TO POOL COMMISSIONS VOID AS AGAINST PUBLIC POLICY. — In a real-estate transaction a third party brought together the respective agents for a buyer and seller and the three agreed to pool and divide commissions. The seller has paid the commission due into court and the agent of the buyer and the third party each claim one third. Held, that the third party can recover, but the agent for the buyer can not. Williams v. Knight Realty Co., 217 S. W. 753 (Tex.).

A broker, though an agent in a limited sense, owes the party he represents the same measure of undivided loyalty which the law exacts from an ordinary agent toward his principal. See Young v. Hughes, 32 N. J. Eq. 372, 383. Consequently he may not put himself in a position where his interests would be adverse to those of his principal. Quinn v. Burton, 195 Mass. 277, 81 N. E. 257. Thus, he cannot secretly represent two parties with conflicting interests. Rombeck v. Pattillo, 104 Ga. 777, 30 S. E. 962; Bunn v. Keach, 214 Ill. 259, 73 N. E. 419. An exception is made where his equivocal conduct is assented to by the principals. There dual agency is permitted. Rowe v. Stevens, 53 N. Y. 621. There also he may agree to pool commissions with the broker of the other party. See Sullivan v. Tufts, 203 Mass. 155, 157, 89 N. E. 239, 240. But pooling arrangements made secretly are void, being inimical to public policy. Quinn v. Burton, supra; Corder v. O'Neill, 207 Mo. 632, 106 S. W. 10. This is so, even though the price of the property is fixed by the principal. Levy v. Spencer, 18 Col. 532, 33 Pac. 415. These engagements unconsciously tend to subordinate the interests of the principals to the desire to carry through the particular scheme of the brokers. That being the case, the bona fides of an individual transaction will afford no excuse. Smith v. Pacific Vinegar Works, 154 Cal. 352, 78 Pac. 550. Nor will custom. Walker v. Osgood, 98 Mass. 348. In the principal case the right of the third party is clear. But the agent for the buyer, relying as he did on an illegal contract, could not succeed.

23 See Oliver Wendell Holmes, "The Path of the Law," 10 HARV. L. REV., 457.

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BAIL LIABILITY TO ANSWER CHARGES NOT NAMED IN BAIL BOND. The plaintiff as surety entered into a recognizance with a party committed for trial on a charge of indecent assault. The condition of the bond was that the accused should appear and plead "to such indictment as may be found against him by the grand jury for and in respect to the charge aforesaid . . . and should not depart the court without leave." An indictment for rape was returned by the grand jury. The accused failed to appear. The plaintiff moved to set aside an order authorizing the estreat of the recognizance. Held, that the motion be dismissed. The King v. Mandacos, 50 D. L. R. 427 (Nova Scotia).

Some courts consider the bail bound only when an indictment is returned charging the crime named in the recognizance. Queen v. Wheeler, 1 CAN. L. JOUR. (N. S.) 272; Queen v. Ritchie, I CAN. L. JOUR. (N. S.) 272. Others regard the recognizance as effecting a substitution of the bail for the jailer, and hold him, although the indictment be based on a different act from that underlying the recognizance. Pernitti v. People, 99 App. Div. 391, 91 N. Y. Supp. 210. See 18 HARV. L. REV. 539. A sound intermediate rule prevails, however. This rightly accords independent effect to the undertaking that the accused shall not depart the court without leave, but confines its application to appearances in proceedings connected with the criminal act for which he was committed. Thus, though no indictment be returned, or a nolle prosequi be entered, the bail remains bound until the accused is formally discharged. State v. Stout, 11 N. J. L. 124; Silvers v. State, 59 N. J. L. 428, 37 Atl. 133. See also State v. Hancock, 54 N. J. L. 393, 24 Atl. 726. The crimes named in the recognizance and indictment must arise out of the same transaction, if the former is to continue effective. State v. Brown, 16 Iowa, 314; Carson v. Brown, 142 Ga. 667, 83 S. E. 523. But if, as in the instant case, the offenses are merely different degrees of the same crime, the bail remains bound though the indictment charges the graver crime. State v. Bryant, 55 Iowa, 451, 8 N. W. 303. See Gresham v. State, 48 Ala. 625, 627. A fortiori, where the indictment is for the lesser offense. Campbell v. State, 18 Ind. 375; Comm. v. Teevens, 143 Mass. 210, 9 N. E. 524.

BANKS AND BANKING-DEPOSITS - CREATION OF RELATION OF BANK AND DEPOSITOR. - The plaintiff by mistake sent funds to the defendant bank for deposit. There was no agreement between the plaintiff and the bank creating the relation of bank and depositor. Subsequently, the bank failed to honor the checks of the plaintiff. Held, that the bank is not liable. Rimes & Stubbs v. National Bank of Savannah, 101 S. E. 315 (Ga.).

A bank is under no general duty to receive funds offered for deposit. Thatcher v. The Bank of the State of N. Y., 5 Sandf. (N. Y.) 121. See Jaselli v. Riggs Nat. Bank, 36 App. Cas. (D. C.) 159, 168; Elliott v. Capital City State Bank, 128 Iowa, 275, 277, 103 N. W. 777, 778. Similarly, the relation of bank and depositor cannot be created without the consent of the owner of the funds deposited. Patek v. Patek, 166 Mich. 446, 131 N. W. 1101. See Winslow v. Harriman Iron Co., 42 S. W. (Tenn. Ch. App.) 698, 700. These propositions show clearly that the relation is essentially contractual in its nature. Wilson v. First Nat. Bank, 176 Mo. App. 73, 162 S. W. 1047; First Nat. Bank of Allentown v. Williams, 100 Pa. St. 123. See I MORSE, BANKS AND BANKING, 5 ed., 178. Under the facts in the principal case, the existence of such a contract does not appear, for there is no evidence of assent by the bank. And in the absence of such a contract there is no duty to honor checks, for this is merely an incident of the relation of bank and depositor. Citizen's Nat. Bank v. Importers & Traders Nat. Bank, 119 N. Y. 195, 23 N. E. 540. See National Mahaiwe Bank v. Peck, 127 Mass. 298, 300. The only basis for liability on the part of the bank, in the absence of an express contract, would be such conduct

by it as to estop it to deny its assent to a contract of deposit. Burnell v. San Francisco Savings Union, 136 Cal. 499, 69 Pac. 144; Van Allen v. The American Nat. Bank, 52 N. Y. 1.

BANKRUPTCY DISCHARGE FAILURE TO OBTAIN DISCHARGE IN PRIOR PROCEEDING AS GROUND For Refusal OF DISCHARGE IN SUBSEQUent VolUNTARY PROCEEDINGS. A bankrupt failed to apply for a discharge within the time fixed by statute after adjudication under a voluntary petition (BANKRUPTCY ACT OF 1898, § 14 a). After the expiration of that period he filed another voluntary petition and was adjudged bankrupt. A creditor whose debt was provable under both proceedings asked that his claim be excluded from the operation of any discharge that might be granted under an application. 'therefor in the second proceeding. Held, that the relief be granted. Monk v. Horn, 44 Am. B. R. 472 (C. C. A.).

The Bankruptcy Act limits the time within which an application for discharge may be filed. (§ 14 a.) It also enumerates specific grounds for the refusal of a discharge. (§ 14 b.) It is settled law that failure to obtain a discharge, for either reason, precludes a bankrupt from procuring, in a subsequent voluntary proceeding, a discharge from debts provable in the earlier one. In re Cooper, 236 Fed. 298; In re Loughran, 218 Fed. 619; In re Bacon, 193 Fed. 34. The reason usually stated for the decisions is that the issue as to the right to discharge from those debts is res judicata. See Siebert v. Dahlberg, 218 Fed. 793, 794; Kuntz v. Young, 131 Fed. 719, 721; In re Elby, 157 Fed. 935, 936. See COLLIER ON BANKRUPTCY, 9 ed., 318–319. Where there has been a denial of discharge in the earlier proceeding this reasoning is sound. In re Krall, 196 Fed. 402; In re Kuffler, 155 Fed. 1018. But this theory would hardly apply to the other class of cases, where there has been no judicial determination upon the merits of the issue. See Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 691; Foster v. Busteed, 100 Mass. 409, 412. Here the true basis would seem to be that Congress intended by section 14 a to relieve creditors from the necessity of remaining prepared for an unreasonable length of time to prove the existence of grounds for the refusal of a discharge under section 14 b; and that this intent would be defeated and the latter provision practically nullified, if a bankrupt were allowed to evade the bar by instituting a second proceeding. This reasoning is set forth in several cases and is confirmed in the principal case. See In re Cooper, supra; In re Loughran, supra.

CONFLICT OF LAWS - LETTERS ROGATORY-SERVICE OF PROCESS UPON Resident at the Request of a Foreign COURT. — A civil court of Mexico City issued letters rogatory to the federal court in New York requesting that service of summons be made upon a defendant, resident in New York, who was being sued in Mexico upon a contract there made and to be performed. The defendant had no property in Mexico and had not been personally served. A Mexican statute gave the court jurisdiction to render a personal judgment, despite non-residence, where the obligation sued upon was to be performed within the territorial jurisdiction. Held, that the request be refused. In re Letters Rogatory, 261 Fed. 652 (Dist. Ct., S. D., N. Y.).

Under the civil law, courts have long made use of letters rogatory to accomplish judicial acts in foreign jurisdictions. I FOELIX, DROIT INTERNATIONAL, 4 ed., 88 202, 239 et seq.; 5 WEISS, DROIT INTERNATIONALE PRIVÉ, 2 ed., 527. And the practice has been usual in courts of admiralty. HALL, ADMIRALTY PRACTICE, part 2, tit. 19, pp. 37-43. Some common-law courts consider this general power to issue and execute letters rogatory to be inherent to prevent failure of justice. De Villeneuve v. Morning Journal Ass'n, 206 Fed. 70. See In re Pacific Ry. Commission, 32 Fed. 241, 256. Others, however, view it as of entirely statutory origin. See In re Letters Rogatory, 36 Fed. 306; Matter of Romero, 56 Misc.

319, 320, 107 N. Y. Supp. 621, 622. Under neither view has the practice been used for any purpose other than to procure the testimony or deposition of a witness otherwise unavailable. See WEEKS ON DEPOSITIONS, § 128. And the execution of letters rogatory rests entirely upon principles of comity. Under the theory of our law a personal judgment against a non-resident is a nullity without personal service of process. Pennoyer v. Neff, 95 U. S. 714. And service out of the jurisdiction, even though accepted, is not sufficient. Scott v. Noble, 72 Pa. St. 115. Accordingly, in the principal case, if service of process were necessary to give the Mexican court jurisdiction, the federal court was clearly correct in refusing to aid in effecting a result contrary to the policy of our legal system. Emery v. Burbank, 163 Mass. 326. If the purpose were merely the protection of the defendant, this result is accomplished without danger of prejudice by giving him informal notice of receipt of the request. The same conclusion was reached by the New York courts in a similar case. Matter of Romero, supra.

CORPORATIONS

STOCKHOLDERS: POWERS OF MAJORITY EXPULSION OF COMPETING SHAREHOLDERS BY AMENDING BY-LAWS. Section 13 of the Companies Act of 1908 (8 EDW. VII, c. 69) permits a company to introduce into its altered articles anything that might have been included in its general articles. A company in pursuance of this power bona fide passed an amendment which provided that the directors could require any shareholder who competed with the company's business to transfer his shares to nominees of the directors. The plaintiffs, minority shareholders, carried on a competing business, and a declaration is sought by them that the alteration was invalid as against them. Held, that the alteration is valid. Sidebottom v. Kershaw Leese & Co., Ltd., [1920] 1 Ch. 154.

Where a contract with a member of a corporation either expressly or impliedly is made subject to future by-laws as well as to those already existing, a later amendment becomes a binding portion of the contract. Fullenwider v. Sup. Council R. L., 180 Ill. 621, 54 N. E. 485; Stohr v. San Francisco M. F., 82 Cal. 57, 22 Pac. 1125; Allen v. Gold Reefs of West Africa, [1900] 1 Ch. 656. Not every alteration, however, will be sustained; the power of change must not be exercised unreasonably. I MACHEN, CORPORATIONS, § 702; BOISOT, BY-LAWS, § 123. Thus by-laws which impair vested rights have been held invalid in the United States, though precisely what constitutes a vested right is the subject of much confusion. Supreme Council A. L. H. v. Champe, 127 Fed. 541; Weber v. Supreme Tent K. M. W., 172 N. Y. 490, 65 N. E. 258. But see Andrews v. Gold Meter Co., [1897] 1 Ch. 361. Restraints on the alienation of stock have uniformly been held invalid. McNulta v. Corn Belt Bank, 164 Ill. 427, 45 N. E. 954; Bloede Co. v. Bloede, 84 Md. 129, 34 Atl. 1127. And so with restrictions on the right of members to sue the corporation. Insurance Co. v. Morse, 20 Wall. (U. S.) 445; MacMahon v. Sup. Tent, K. M. W., 151 Mo. 522, 52 S. W. 384; Hope v. International Fin. Soc., 4 Ch. D. 327. A by-law which constitutes an unreasonable restraint of trade is also void. Ipswich Tailors Case, 11 Coke, 53 a; Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438, 56 N. E. 822. The English courts give far wider scope to the corporate power of change than do the American courts, possibly because of the broad, inclusive language contained in Section 13 of the Companies Act. See I MACHEN, CORPORATIONS, § 721. It was not difficult, therefore, for the court to sustain the altered article in the principal case since it was intended as a reasonable protection of corporate interests and would undoubtedly have been sustained even in the United States.

CORPORATIONS STOCKHOLDERS: RIGHT TO SHARE IN CORPORATE ASSETS - TRANSFEREE OF STOCK FROM A WRONGFUL STOCKHOLDER. A stockholder