trade. *** Detach the importations from the retail sale, consider only the transportation to the State of merchandise in the original package, being sold therein in such package, and there may, indeed, be interstate commerce; but so detached and so considered, the importations are left without purpose, the schemes without execution. Indeed, complainants contend for the right not only of importations in the original package containing the coupons, but the disposition of the goods and coupons through the retail merchant. This, we repeat, has no protection in the commerce clause." We do not think this necessarily embraces the point of agency in the local merchant to deliver the coupon to the ultimate consumer. He acts only for himself in delivering the merchandise. For whom does he act in delivering the stamps?

It was further claimed that Congress had specifically provided for such shipments in interstate commerce by prescribing what a package in commerce should be. But the court said Congress only provided what packages should not contain and went no further than this. Besides, it was said: "The statute of Florida does not seek to

control the interstate transportation of the packages; it controls only their sale in the State through the retail merchant." But he does not sell the stamps to the consumer. Who does, if anybody? The consumer, it is true, gets title to the stamps by purchasing the package from the consumer. By purchasing the principal thing, he acquires title to the incident.

More interesting seems the discussion regarding the opposition of the statute to the contract and due process clauses of the Constitution. It is said that: "The statute must be held to have prospective operation," but "as the business is subject to regulation, the contracts made in its conduct are subject to such regulation."

The above applying to the contract clause of the Constitution, the learned justice proceeds to inquire, if it is an unlawful interference with business liberty.

It was claimed that here was "but a method of advertising, and, as such, mere allurements to customers, not detrimental in any way to the public health or morals, nor obstructive of the public welfare," and interference was "an illegal intermeddling with a lawful calling and a deprivation of freedom of contract."

The court said that this reasoning but "regards the mere mechanism of the schemes alone and does not give enough force to their influence upon conduct, and habit, not enough to their insidious potentialities. As to all of which not courts, but legislatures may be the best judges, and, it may be, the conclusive judges. No refinement of reason is necessary to demonstrate the broad power of the legislature over the transactions of men. There are many lawbusiness." ful restrictions upon liberty of contract in

Speaking of the particular allurements held out, it was said: "They tempt by a promise of a value greater than in the article sold and apparently not represented in its price and hence it may be thought that, thus by an appeal to cupidity, lure to improvidence. This may not be called in an exact sense a 'lottery,' may not be called 'gaming,' it may, however, be considered as having the seduction and evil of such."

It really looks like a statute like this has so very little to rest upon in the way of guarding morals, it ought rather to be deemed a

deemed a revenue statute than anything else. There is no element of chance or gambling in the scheme, and how any demoralization could be supposed to arise, or any cupidity in the way of getting something for nothing be excited, it is difficult even to imagine. As a revenue statute pure and simple, we gather it would be held unconstitutional. As a criminal offense cannot be raised by construction, so it would seem, in a measure, at least, ought to be interpretation of statutes which suppose evil influences as justification for the exertion of the police power.

NOTES OF IMPORTANT DECISIONS.

BREACH OF MARRIAGE PROMISE-ILL HEALTH AS EXCUSE.-Iowa Supreme Court by a majority of five to two declares, that, where a man engaged to marry subsequently becomes so afflicted by disease, that performance of his marriage duties would aggravate his disease and hasten his death, non-performance is excused. In re Oldfield's Estate, 156 N. W. 977.

This conclusion is arrived at from a review of conflicting authority, but the court holds to the view that one may refuse to perform in either of three cases, (1) when he becomes afflicted with a loathsome disease which may be communicated to the other or their offspring; (2) when he becomes afflicted with a fatal and incurable malady and its consummation would hasten his or her death, and (3) when he or she is stricken with a fatal malady and the evidence makes it reasonably certain that he has but a few days or weeks or months to live.

There seems substantial agreement in the authorities, that public policy would excuse performance in the first of the above suppositions, and in the other cases damages might be mitigated. The able dissenting opinion, citing cases and distinguishing those relied on by the majority demonstrates, we think, that such an interposition, if not objected to by the other party, offers no defense for a refusal to perform or answer in damages.

The majority reasoning says that: "There is implied in every contract to marry, that the parties will not endanger life or health in the consummation of the marriage, and that where illness or disease comes upon one after making the contract to marry, such as would render marriage dangerous to his life, a breach of the contract, based on such unavoidable and such unanticipated condition is excusable. *** Where the malady is of such a fatal character that he cannot enter into the marriage relation and receive any of the benefits which grow out, and are involved in, the relationship established by the consummation of the marriage, he is excused."

The dissenting opinion says, very strongly: "The theory of failure of consideration is not persuasive. This is the first time it has been invoked for the one who is unable to furnish the full consideration. It involves a confusion of the parties."

One of the dissenting judges contents himself with saying that: "To subject such contracts to such a condition as a continuing and necessary qualification thereof is to declare a

measure of disability. This is a purely legislative prerogative and not a judicial one."

If the majority reasoning is good, then it would be going but a step further, for the courts to declare, that, if one marries not knowing that his spouse is afflicted with a disease which soon after develops a deadly malady, he may sue for annulment or the other party may sue. It seems to us that the two ought to bear the other's affliction when married and if she elects to do this while engaged to him, espousal gives her this option. Whatever peculiarity there may exist in a marriage contract, it should be reflected to some extent, at least, in an engagement to marry. The latter is but anticipatory of the former as to supposed affection and if one is mercenary, the other also may be, and in the same way. At all events, what the second dissenting judge says about legislative prerogative should be given more heed by theorizing judges than it often is. Let it be remembered that espousal ought to be deemed to take on some confidential relationship between a man and a woman just as marriage does.

COURTS-PRESUMPTION OF REGULARITY OF JUDGMENT DOES NOT EXTEND TO SPECIAL JUDGE.-In Cain v. King, 155 Pac. 1176, decided by Supreme Court of Oklahoma, it is held that where a judgment has been rendered by one purporting to sit as special judge, and the record fails to show that he has authority to sit as such judge, the judgment will not be recognized on appeal as a determination of the cause before the court from which the appeal has been taken.

The Oklahoma court, citing cases from Missouri and the Federal Supreme Court and going upon the theory that the Supreme Court takes judicial notice of who are judges of lower courts in the state, holds that when another appears to have acted as judge than one within such judicial notice, authority must appear on the face of the proceedings for him thus to act.

In the Missouri cases is shown exactly how the special judges came to sit. If this statement disproves his authority to sit, this is a different proposition than where this does not appear. In the Oklahoma case the ruling is entirely on the fact of one sitting as judge not being judicially known to the upper court to be such a judge. To displace his judgment for such a reason appears to us to militate against another presumption, omnia presumuntur rite acta, except that as this came from what is called a "county court," it may be a court of such limited jurisdiction, that nothing

is presumed in its favor. As against this thought, however, seems to be the general reasoning of the Supreme Court. It does not dispute that this "county court" as to a cause within its jurisdiction, is a court of general jurisdiction. It seems doubtful to us, that the course taken by the Supreme Court is in accordance with accepted principles. It sent the case back for a new trial. It ought to have dismissed the appeal, because no judgment recognizable in law had been entered. If there was a trial, that could be considered at all, it ought to have been considered on its merits.

PRINCIPAL AND SURETY-NOTICE TO SURETY OF EMPLOYE'S DISHONESTY.-In Farmers' Bank of Deepwater v. Ogden, 182 S. W. 501, decided by Kansas City (Mo.) Court of Appeals, the facts show, that the bond of a surety company conditioned continuance of the surety's liability on the assured, a bank, giving the surety immediate notice of any act, fact or information coming to the knowledge of the bank or any of its officers "tending to indicate that the employe is or may be unreliable, deceitful, dishonest or unworthy of confidence."

The president of the bank was bonded by the surety company and it set up to an action for loss suffered by a forgery, whereby the president had obtained a credit card of the bank's correspondent bank, that prior to the commission of such offense the bank had become possessed of information tending to indicate that the president was unreliable, deceitful, dishonest and unworthy of confidence, and failed to give the surety notice thereof.

The evidence as to this showed that "the following incident came to the knowledge of plaintiff's officers in October, 1912: "Some time in December, 1911, Ogden forged a note for $1800, payable to plaintiff bank purporting to be executed by George O'Hare. He negotiated this note to the Lowery City Bank, indorsing it with his own name as president of plaintiff's bank, and also signing or indorsing the name of plaintiff's cashier thereon." The cashier of the Lowery City Bank spoke to the cashier of plaintiff bank about this note and he denied having indorsed the note. It was shown to him and he looked only at the back and returned it to the other cashier, saying he would see Ogden about it the next morning. A few days afterwards Ogden paid the note. Plaintiff's cashier spoke of the matter to the vice-president and to one of the directors, but no notice was given to the surety pany. The trial court submitted to the jury the question whether the information given

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was such as would lead a reasonably prudent person to believe that Ogden was unreliable, deceitful, dishonest or unworthy of confidence. There was verdict against the surety company. The court said: "Justification for this view is said to be found in testimony by the officers and others that Ogden was thought to be a man of high character; that he had everybody's confidence; that he was a man of great egotism and self-assertion, who made himself the head and front of every transaction with which he was connected; and that these officers attributed the act of signing the name of the cashier of a bank of which he was president boldly, without attempt at disguising handwriting, to such characteristic."

This appears to us very extraordinary reasoning. In the first place, there was a plain crime committed; secondly, it was concealed from the cashier for ten months, when he accidentally heard of it, and, thirdly, there was nothing to show that, either before or intermediately, he pretended to sign the cashier's name to any other paper, either with or without his consent. Whatever the president's egotism and self-assertion, it is not pretended he did not know he did what he was not authorized to do.

But laying all of these things aside, what room was there for a jury to judge that this conduct did not tend to indicate unreliability, dishonesty, or that Ogden was not worthy of confidence? Is it to be supposed that the surety company was contracting upon some peculiar views the other officers of the bank might entertain of Ogden's character, when the surety company was asking for notice of any act that, at least, needed some explanation. Why did the cashier mention it to the other officers, if it was of no particular importance, and why did he call Ogden's attention to the matter if he regarded it as a trivial matter? The surety company wanted information about facts and the privilege of judging of their effect for itself, and this the bank agreed to give to it.

NOTES OF RECENT DECISIONS IN THE THE BRITISH COURTS.

A branch of law which recently has developed considerably is that relating to the doctrine of ultra vires and the reason for this is not far to seek. The epoch of social reform legisla tion here, which preceded the war, resulted in the establishment of many administrative bodies to whom were committed power to issue regulations and by-laws, and not seldom some of the interests affected by rules so made have challenged their validity in the courts on the

ground that in certain respects they exceeded the statutory powers of the body making them. In this way a considerable quantity of case law has been collecting round the subject; and we note three distinct stages in its progress. First, in the days of the early application of the doctrine, it was thought that if an ultra vires act was committed, not by an individual but by a corporation, no one was entitled to , complain, except the Crown, which had granted the corporation's charter, unless the act complained of directly injured the patrimonial rights of the complainers: Second, the foregoing proposition being found too feeble to keep in check the actings of municipalities, for instance, with regard to the rights of their citizens, it was laid down that the latter had a title and interest to challenge such actings as ultra vires, if they could show that they might have the effect of imposing heavier rates on them in the future. And another variety of the same idea is found in the class of cases as to improper administration of public property, which go to establish that those who contribute to the funds which bought the property have an interest in the administration of a subject to which they have contributed, and consequently a title to challenge flowing from that position and interest: Third, we come to the latest and broadest statement of the doctrine in the recent decision of the House of Lords in Nicol v. Dundee Harbor Trustees 1915; 2 S. L. I. 418. These trustees who by Act of Parliament were empowered to run a ferry used one of their ferry-steamers for popular excursions outside the ferry limits. Rival shipowners who were also harbor rate payers challenged this use of the steamer as ultra vires, and the trustees pleaded that they had no right title or interest to do so. The House of Lords negatived their title as rival traders but upheld it as harbor rate-payers; the ground of judgment being thus broadly expressed by one of the judges: "If any persons are in such a relation as to constitute themselves trustees, or if without being technically trustees they have a fiduciary duty to others, those persons to whom they owe a fiduciary duty will have a title to sue to prevent infringement of that duty." With that statement of the law, which seems broad enough to apply to all varieties of excess of statutory powers, we leave the subject, trusting that the point dealt with may suggest to readers a comparison with the existing state of American law on the subject of ultra vires.

A provision of one of our intestacy statutes is to the effect that the whole property of an intestate husband, if it does not exceed £500 in value, goes to the widow exclusively, pro

vided the deceased left "no lawful issue." A man died intestate survived by his wife and three grand-children, and having estate less than £500. The widow claimed the whole on the ground that grand-children were not within the term "issue." Action was raised in one of the inferior courts, and the appellate judge, reversing the decision of the judge below, has held that the term "issue" does include grandchildren, and has refused the widow's claim. Now there is but little doubt that a long series of cases hold that the words "issue" or "lawful issue," where occurring in a deed, such as a will or marriage settlement, mean descendants of whatever degree, but the peculiarity of the case referred to is that it raises for the first time and in a remarkably sharp way, the question, what is the meaning of these terms as occurring in a statute, where they can not be in any way controlled by extraneous considerations such as the intention of the testator, and the hearing of other clauses to be found in deeds. In this respect the case has attracted some attention in the general press, while as yet no official report of it to which we can refer has been issued. The opinion of the last judge is to the effect that the established rule of interpreting ordinary words in their ordinary sense is to be followed, whether such words occur in deeds or in statutes, and the ordinary and accepted meaning of "issue" he holds to include all descendants. What, it may be asked is the dictionary authority on the point? Well, Dr. Johnson's definition is "progeny, offspring," and the same meaning is put first in the article on the word in the great Oxford dictionary.

One of the most far-reaching decisions yet given as to the effect of the war on contracts is that of the House of Lords in Beal v. Horlock, 1916, T. L. R. A British ship was detained in a German port on the outbreak of the war, and the crew were interned in Germany. One of the crew had allotted half his monthly wages to his wife, and in order to ascertain the liability of the shipowner, an action for the allotted sum was raised by the wife, the defense to which was that it had ceased to be payable on the outbreak of war, for the detention of the ship by the enemy was equivalent to "loss or wreck" of the ship, an event which, by the merchant shipping act, terminates ipso facto all engagements with the crew. The divisional judge, and affirming him, the Court of Appeal held that the detention by the enemy was not equivalent to "loss" and that therefore the contract of service had not terminated; the owner was still liable to pay the wages of the crew; and apparently would continue to be so

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liable till the end of the war. The House of Lords have, however, taken the view that the words "wreck or loss" in the statute referred exclusively to actual physical happenings, and, therefore, had no application to the case. their opinion the hard facts of the situation simply made it an impossibility for the crew to perform the services for which they had contracted, and that, therefore, by force of the common law the contract between them and the shipowner was dissolved as from and after the date of their internment. The judgment was unexpected, and it will free many shipowners of an immense burden. The changed situation is being met by legislation. The government have formulated a scheme for the support of dependents of interned sailors, to which the shipowners are to contribute.

General Rule.-The most generally expressed declaration of the rule is that a corporation's existence cannot be assailed by a private suitor, that this is the affair of a státe under whose license or authority it purports to act. It may be conceded. that, where there is an effective estoppel either as to the corporation or its adversary, the principle of no collateral attack will be invariably applied. Whether the principle will be applied, no estoppel being present, purely as a matter of public policy, may depend upon several considerations, and first it becomes useful to inquire what is a de facto corporation.

De Facto Corporation.-The U. S. Supreme Court has summarized the requisites in the creation of a de facto corporation as follows, saying these are three: “(1) A charter or general law under which such a corporation as it purports to be might be lawfully organized; (2) an attempt to organize thereunder, and (3) actual user of the corporate franchise." Speaking of the

(1) Tulare Irrigation Dist. v. Shepard, 185 U. S. 1, 22 Sup. Ct. 531, 46 L. Ed. 773.

case before the court, it was said: "The case at bar contains these requisites. There was a general valid law under which a corporation, such as the defendant claimed to be, could be formed; there was undoubtedly a bona fide attempt to organize thereunder, and there has been actual user of the corporate franchise." The opinion goes on to show that the corporation, which was claimed to be duly organized and, therefore, was liable for the bonds. and negotiated by it, had done a number of things, besides, as a corporation, and it was said: "If anything can constitute a de facto corporation, the defendant herein constitutes one, notwithstanding there were irregularities in its organization." This case will be referred to hereinafter when I come to consider exceptions. to the rule of collateral attack attempting to call in question a corporation's existence. Many cases might be cited to show, that the summary made by this case aptly describes in a general way, at least, the requisites to the constitution of a corporation in the absence of direct attack by the state creating the corporation.

Conditions Precedent to the Creation of a De Facto Corporation.-Looking at the summary of requisites to the constitution of a de facto corporation and at the reasoning by the court in the Tulare case, and especially at the facts in the case, and it must be admitted that the court was speaking in a general sense. For example when it is stated, that there must be an authorizing law. this means a valid authorizing law. Thus, the court says in its reasoning: "There was a general valid law" under which a corporation was organized (such as was before the court) and could be formed. It has been said: "That there can be no de facto corporation unless the statute authorizes the formation of a de jure corporation is too clear to admit of any dispute." And: "In order that there should be a de facto cor

(2) State v. Stephens, 16 S. D. 309, 92 N. W. 420.