house-owner is the cause. 4 BLACKSTONE'S COMMENTARIES, 226. Any such consideration is wholly inconsistent with the basic theory of the criminal law, that the state is the party plaintiff. Reg. v. Kew, 12 Cox C. C. 355. And where, with equal carelessness, a door or window was left unlocked, but wholly closed, one who entered was convicted of burglary. May v. State, 40 Fla. 426, 24 So. 498. Also where the breaking consisted of merely tearing out a twine latticework. Commonwealth v. Stephenson, 8 Pick. (Mass.) 354. Nor is there in fact any invitation held out by such negligence. But see Timmons v. State, 34 Oh. St. 426, 427. The probable explanation is that an artificial distinction was taken in favorem vite, at a time when burglary was a capital offense. Logically, widening an opening, not large enough to admit the defendant, by pushing up a window, or sliding back a door, is the forcible removal of an obstacle to entering, and a breaking of a part of the dwelling-house relied on as a security against intrusion. See Metz v. State, 46 Neb. 547, 553, 65 N. W. 190, 192; State v. Boon, 13 Ired. 244, 246. There is a growing tendency to follow the view expressed in the principal case. Claiborne v. State, 113 Tenn. 261, 83 S. W. 352; State v. Sorenson, 138 N. W. 411 (Ia.).

RIDING WITH FRAUD

CARRIERS - PASSENGERS: WHO ARE PASSENGERS ULENT TICKET BEFORE IT HAS BEEN COLLECTED. The plaintiff obtained a ticket on the defendant railroad at a reduced rate by falsely representing himself to be a commercial traveler. He was injured by the defendant's negligence, before the ticket was taken up by the conductor. Held, that he can recover. Ashbee v. Canadian N. Ry. Co., 25 West. L. R. 884 (Sask.).

The relation of carrier and passenger is consensual in character, requiring that the parties should mutually assent to its creation. See Webster v. Fitchburg R. Co., 161 Mass. 298, 299, 37 N. E. 165, 166. The express assent of the carrier is often evidenced by the collection of a ticket or cash fare from the party presenting himself for transportation. Illinois C. R. Co. v. Treat, 179 Ill. 576, 54 N. E. 290. But if such assent is obtained by fraud, the wrongdoer cannot make it the foundation of a right of action. Fitzmaurice v. New York, N. H. & H. R. Co., 192 Mass. 159, 78 N. E. 418; Way v. Chicago, R. I. & P. R. Co., 64 Ia. 48, 19 N. W. 828. The carrier's assent to the creation of the relationship is implied, where the applicant exactly complies with the terms of the general outstanding invitation to the traveling public. Webster v. Fitchburg R. Co., supra; St. Louis & S. F. S. R. Co. v. Kilpatrick, 67 Ark. 47, 54 S. W. 971. invitation is limited to those who intend to become bona fide passengers. Thus it is generally held not to include travelers trying to steal a ride, even though they may be prepared to pay fare if compelled to. Wynn v. City & S. Ry. Co., 91 Ga. 344, 17 S. E. 649; and see Chicago, R. I. & P. R. Co. v. Moran, 117 Ill. App. 42, 45. Upon similar reasoning it would seem that the invitation was not extended to a traveler such as the plaintiff in the principal case, since he did not intend to pay the proper fare unless his fraud were discovered. It follows that the defendant owed him no duty of due care.

CARRIERS

This

PERSONAL INJURIES TO PASSENGERS - ASSAULT BY ANOTHER PASSENGER CONDUCTOR ASKING PASSENGER'S ASSISTANCE. - The plaintiff while a passenger on the defendant's train, went at the request of the conductor to help restrain an intoxicated passenger who had been wandering through the coaches and resisting efforts to keep him from jumping from the train. The conductor left the plaintiff, who was thereafter assaulted by the intoxicated man. Held, that the direction of a verdict for the defendant was correct. Spinks v. New Orleans, M. & C. R. Co., 63 So. 190 (Miss.). For a discussion of the principles involved, see NOTES, p. 376.

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CONFLICT OF Laws SITUS FOR PURPOSE OF GRANTING ADMINISTRATION STOCK IN CORPORATION. The testator died domiciled in Bermuda leaving

in New York shares of stock of the defendant, a New Jersey corporation. The defendant corporation maintained an office in New York for the transfer of shares. Held, that the certificates constituted property in the state for the purpose of founding administration. Lockwood v. United States Steel Corporation, 50 N. Y. L. J. 961 (N. Y. Ct. App., Nov. 25, 1913).

The principal case is clearly right. The state of New York had complete power over the chose in action represented by the certificates, since, there being a transfer office in the state and the corporation itself being liable to suit there, the courts of the state could furnish the remedies for a complete reduction to possession. In re Clark, [1904] 1 Ch. 294. The same principle applies to insurance policies. New England Mutual Ins. Co. v. Woodworth, 111 U. S. 138, 4 Sup. Ct. 364; Morgan v. Mutual Benefit Ins. Co., 187 N. Y. 447, 82 N. E. 438. A more difficult question arises when all that exists as a basis for the attempt to found administration is the certificate itself. Richardson v. Busch, 198 Mo. 174, 95 S. W. 894. It is held that the certificate is taxable where it is, irrespective of the domicil of the corporation or owner. Stern v. Queen, [1896] IQ. B. 211; Dwight v. Boston, 12 Allen (Mass.) 316. The certificate can be attached under the same circumstances. Simpson v. Jersey City Co., 165 N. Y. 193, 58 N. E. 896; Puget Sound Nat. Bank v. Mather, 60 Minn. 362, 62 N. W. 396. And by the American view a transfer of the certificate gives a complete irrevocable power of attorney to reduce to possession. Leyson v. Davis, 17 Mont. 220, 42 Pac. 775; Grymes v. Hone, 49 N. Y. 17. It would seem, therefore, that the courts as well as laymen consider the certificate itself a thing of value. In rerum natura a chose in action has no real situs. Its locality therefore should be governed by the possibility of control over its reduction to possession. Two different states may conceivably possess this control, and therefore it is submitted that administration might be had of the interest where the certificate is, as well as at the domicil of the corporation. The authorities, however illogically it seems, in view of the attachment and taxation cases, deny this possibility. The courts call the certificate merely evidence of the interest, and require that the interest be capable of complete reduction to possession within the state before allowing administration of it there. Richardson v. Busch, supra; Grayson v. Robertson, 122 Ala. 330, 25 So. 229; Murphy v. Crouse, 135 Cal. 14, 66 Pac. 971.

CONSTITUTIONAL LAW - PERSONAL RIGHTS - LIBERTY TO CONTRACT STATUTE INVALIDATING CONTRACTS FOR ARBITRATION OF FUTURE DISPUTES. - A statute declared void any provision in a contract whereby the award of any person was made conclusive of the rights of the parties thereunder. Held, that the statute is repugnant to a clause of the state constitution guaranteeing the right of "acquiring and possessing property." Adinolfi v. Hazlett, 242 Pa. 25, 88 Atl. 869.

For a discussion of the legislative power to limit freedom of contract, see NOTES, p. 372.

CONTRACTS - SUITS BY THIRD PERSONS NOT PARTIES TO THE CONTRACT· UNASCERTAINED AND INCIDENTAL BENEFICIARY. - In consideration of a conveyance of land by a person now deceased, the defendant promised to maintain him during life and to pay his funeral expenses at death. Representatives of the undertaker who buried the deceased sue on the promise. Held, that they cannot recover. Lockwood v. Smith, 143 N. Y. Supp. 480 (Sup. Ct.).

In New York a third person can recover on a contract to which he is not a party, only when he has a legal right, founded on some obligation of the promisee to him, to adopt and claim the promise as made for his benefit. Vrooman v. Turner, 69 N. Y. 280. The principal case denies recovery on this ground. This requirement bases the right of the third party to an action at law on his

equitable right as an attaching creditor of the promisee. See WILLISTON'S WALD'S POLLOCK ON CONTRACTS, 245. It is not required that the promisee have an existing liability to the third party at the time of contracting. Coster v. Mayor, etc. of Albany, 43 N. Y. 399. Nor does it seem a valid objection to recovery, that the promise, as in the principal case, is an asset available only to the promisee's estate. A man's interest in securing the convenient discharge of obligations arising after death may be as real as with regard to obligations existing during life. The jurisdictions which recognize the insurance policy type of third party contracts do not require that the sole beneficiary be ascertained when the promise is made. Whitehead v. Burgess, 61 N. J. L. 75, 38 Atl. 802. Where the beneficiary is not a mere donee this seems even less essential. Coster v. Mayor, etc. of Albany, supra, 412; Chanute National Bank v. Crowell, 6 Kan. App. 533, 51 Pac. 575. But since allowing the third party an action at law, although a well-established doctrine is perhaps anomalous, it may be justifiable to restrict this right to cases where it clearly appears that performance was to be rendered to the third party directly, and not to the promisee. Cf. Burton v. Larkin, 36 Kan. 246, 13 Pac. 398; Thomas Mfg. Co. v. Prather, 65 Ark. 27, 44 S. W. 218. This practical limitation would support the result in the principal case, where it was not clear that the promise was to pay the undertaker directly rather than the deceased's representatives. Contra, Riordan v. First Presbyterian Church, 3 Misc. (N. Y.) 553, 23 N. Y. Supp. 323, aff'd 6 Misc. (N. Y.) 84, 26 N. Y. Supp. 38; Traver v. Snyder, 34 Misc. (N. Y.) 406, 69 N. Y. Supp. 750.

COPYRIGHT

PROTECTION OF FICTION ORIGINALLY PUBLISHED AS NEWS. - The plaintiff was the assignee of the copyright privileges on matter which he had contributed to a newspaper as news, although it was in reality the product of his imagination. The defendant produced a play into which the author had incorporated as the essence of the plot the incident which the article purported to describe. Held, that the plaintiff could not recover under the COPYRIGHT ACT (Act of March 3, 1891, c. 565; 26 Stat. at Large, 1106). Davies v. Bowes, 50 N. Y. L. J. 913 (U. S. Dist. Ct., S. D. N. Y.).

At common law the author of a literary composition is protected in his property right to the original manuscript, which includes the sole right of first publishing the same for sale. Press Pub. Co. v. Monroe, 73 Fed. 196; and see Donaldson v. Becket, 4 Burr. 2408, 2417. American and English courts differ as to whether he also enjoyed a perpetual right in the publication of his works, but both agree that the enactment of a coypright law limits the protection to the term of years specified. Donaldson v. Becket, 4 Burr. 2408; Wheaton v. Peters, 8 Pet. 591. As to news, nothing but the form in which it is cast receives protection at common law or under copyright laws. Walter v. Steinkopf, [1892] 3 Ch. 489; and see Tribune Co. v. Associated Press, 116 Fed. 126, 128. The common law, however, recognizes a property right in news, as such, where it has acquired an intrinsic commercial value by reason of prompt dissemination. Nat. Tel. News Co. v. Western Un. Tel. Co., 119 Fed. 294. But, in the 'principal case, the article was fiction, ordinarily the peculiarly appropriate subject of copyright, and the court assumes that the only obstacle to recovery was the publication under the guise of news. The result cannot be supported upon the authority which denies the validity of a copyright on a work published under a false title, with intent to defraud the public, for in the principal case the deception was too trivial. See Wright v. Tallis, 1 C. B. 893, 906. But the defendant acted in reliance upon the plaintiff's representation that the article was news, and, therefore, not the subject of copyright. Obviously the plaintiff should now be estopped from causing the defendant damage by alleging the contrary. There would be no objection, however, to an injunction restraining further infringement by the

defendant, conditioned upon his being reimbursed for the reasonable outlay, innocently incurred. An analogous situation is expressly provided for in the new U. S. COPYRIGHT CODE (Act of March 4, 1909, c. 320, § 20; 35 Stat. at Large, 1080). And see the BRITISH COPYRIGHT ACT, 2 George V, c. 46, Part I, § 8.

CORPORATIONS

DISTINCTION BETWEEN CORPORATION AND ITS MEMBERS

- DISREGARDING CORPORATE FICTION - COMPELLING HOLDING COMPANY TO PRODUCE SUBSIDIARY COMPANY'S Books. The plaintiff was a stockholder in a corporation owning practically all the stock of eight other corporations, a majority of whose boards of directors were officers of the holding company. The plaintiff, charging fraud in the management of the corporate business, brings suit against the holding company and its directors, and moves for the production not only of the defendant's books but for those of the corporations under its control. Held, that the motion be granted. Martin v. D. B. Martin Co., 88 Atl. 612 (Del.).

There is a well-established right on the part of a shareholder of a corporation, after complying with certain requirements, to proceed in equity against the officers who are fraudulently mismanaging the corporate enterprise. See COOK ON CORPORATIONS, 7 ed., § 645. Another well-recognized incident of stock ownership is the right to inspect the books of the corporation in which the stockholder has invested his money. See 23 HARV. L. REV. 641. The Delaware court disregards the separate entities of the controlled corporations, and cites with approval a dictum allowing the corporate fiction to be disregarded to circumvent fraud or where one organization has become the "adjunct" of another. See In re Watertown Paper Co., 169 Fed. 252, 256; Hunter v. Baker Co., 190 Fed. 665, 668. The latter half of the rule, at least, seems somewhat arbitrary and uncertain, and has little to commend it. Too often the courts reject the doctrine of separate corporate existence when it is wholly unnecessary to do so, as in the cases where an insolvent fraudulently conveys his property to a corporation of which he is manager. Bennett v. Minott, 28 Ore. 339; Bank v. Trebein, 59 Ohio St. 316. Here the corporations being chargeable with knowledge through their officers, the cases could be disposed of under the ordinary principles of fraudulent conveyances. It is submitted that conservatism in disregarding the existence of the corporate unit is very desirable. The way is opened for difficulties and uncertainties, and a loss of the valuable features of organization in this form is more than possible. See Gallagher v. Germania Brewing Co., 53 Minn. 214, 219. Further, in the principal case the same result can be reached without a disregard. The holding company as a shareholder had a right to inspect the books of the organizations whose stock it owned. The plaintiff is taking steps to enforce a right belonging to the corporation. See Flynn v. Brooklyn, etc. R. Co., 158 N. Y. 493, 508. He could, by joining the subsidiary companies as well as the holding company, secure complete redress without calling the existence of the former companies into question. It is submitted that this is the more desirable way of enforcing the stockholder's rights.

COVENANTS OF TITLE INCUMBRANCES - PUBLIC HIGHWAY AS BREACH. - The defendant conveyed to the plaintiff, with the usual covenant against incumbrances, rural land across which a public highway had been laid out prior to the time of the conveyance, but which had not been opened for use and the existence of which was not known to either party at the time. Held, that the public highway is not a breach of the covenant. Sandum v. Johnson, 142 N. W. 878 (Minn.).

An easement is such an interference with the dominion of the owner over his land as to constitute a breach of a covenant against incumbrances. Kellogg v. Ingersoll, 2 Mass. 97; Copeland v. McAdory, 100 Ala. 553, 13 So. 545. In some jurisdictions, however, an exception is made in the case of a public highway.

It is said that where incumbrances affect only the physical condition of the property, and are obvious to the purchaser, he must have seen them and fixed his price with reference to such incumbrances. Memmert v. McKeen, 112 Pa. 315, 4 Atl. 542; Janes v. Jenkins, 34 Md. 1. But the knowledge that a third party claims an easement may often be the sole motive inducing him to demand the protection of a covenant. Beach v. Miller, 51 Ill. 206, 211. Such facts, even when they fairly evidence the intention of the parties to exclude the incumbrance from the covenant, would be excluded by the parol evidence rule. See Demars v. Koehler, 62 N. J. L. 203, 206, 41 Atl. 720, 721; Holmes v. Danforth, 83 Me. 139, 142, 21 Atl. 845, 846. The strongest argument for the exception is, that by the universal course of dealing, public highways over rural land have never been regarded as incumbrances, and that this should be considered in interpreting the covenant. Harrison v. Des Moines, etc. R. Co., 91 Ia. 114, 58 N. W. 1081; Patterson v. Arthurs, 9 Watts (Pa.) 152; Whitbeck v. Cook, 15 Johns. (N. Y.) 483. In some jurisdictions especially this seems to be a settled custom. Wilson v. Cochran, 46 Pa. 229; Schurger v. Moorman, 20 Ida. 97, 117 Pac. 122. A similar result has been reached by statute in some states. PUB. STAT. VT., 1906, § 3952; REV. STAT. ILL., 1909, ch. 30, § 39. The principal case, however, cannot be supported on this line of reasoning, since the highway was neither known to the parties, nor in use at the time of the conveyance. Howell v. Northampton R. R. Co., 211 Pa. 284, 60 Atl. 793. But it is said that a public highway is not depreciative, but appreciative of the value of the land, and so is not an incumbrance, but a benefit. Harrison v. Des Moines, etc. R. Co., supra. Aside from the fact that this is not always true, an easement, whether public or private, is an interference with the owner's right to absolute dominion over the land and in that respect an injury to him. The actual damage occasioned by it should affect the determination of damages rather than the question whether or not it is an incumbrance. Kellogg v. Ingersoll, supra; Hubbard v. Norton, 10 Conn. 422; Kellogg v. Malin, 50 Mo. 496; Demars v. Koehler, 62 N. J. L. 203, 205, 41 Atl. 720, 721. The principal case is contrary to the weight of authority. See cases collected in RAWLE, COVENANTS FOR TITLE, sec. 80-83.

- CONDITIONS

DEEDS VALIDITY OF CONDITION SUBSEQUENT IN RESTRAINT OF TRADE. The plaintiff, a brewer, conveyed land, title to revest if a saloon should not be maintained on it, or if beer other than the plaintiff's should be sold therein. The condition being broken, the plaintiff brings an action to enforce the forfeiture against one holding under the original grantee. Held, that the plaintiff cannot enforce a forfeiture. Ruhland v. King, 143 N. W. 681 (Wis.).

A condition subsequent in a deed of land revesting title in the grantor is valid at common law. Such a condition is void, however, if contrary to public policy. Randall v. Marble, 69 Me. 310. See Smith v. Barrie, 56 Mich. 314, 317, 22 N. W. 816, 818. A condition to the effect that the premises conveyed should be used for a certain manufacturing purpose only has been held to be valid. Sperry v. Pond, 5 Ohio 387. The ground of the decision in the principal case, however, was that the condition as to buying the beer from the plaintiff only was an unlawful restraint of trade. The modern tendency has been to uphold contracts, if the restraint imposed is a reasonable one, whether total or partial. Nordenfelt v. Maxim Nordenfelt Gun & Ammunition Co., [1894] A. C. (Eng.) 535; Oakdale Mfg. Co. v. Garst, 18 R. I. 484, 28 Atl. 973. Thus a contract to purchase goods of one firm only is not in unreasonable restraint of trade, although unlimited in time. Brown v. Rounsavell, 78 Ill. 589; John Bros. Abergarn Brewery Co. v. Holmes, [1900] 1 Ch. (Eng.) 188. On principle the restraint imposed in the principal case would seem to be reasonable, for it does not