can authorities, as will be shown by the cases cited in the margin.1 In support of this dictum the court cites three cases, apparently without examining them, one of which is irrelevant, another of which is overruled by a higher court in the same State; while the third is the overruling case which the court cites in support of its dictum, and which decides exactly the reverse.2

CORPORATIONS: ULTRA VIRES: NATIONAL BANKS NO POWER TO PROCURE APPLICATIONS FOR INSURANCE. The Supreme Judicial Court of Massachusetts has generally upheld the so-called doctrine of ultra vires with the same strictness that characterizes the English decisions relating to the powers of companies. A recent illustration of this statement is found in the case of Dresser v. Trader's National Bank,1 where the court held, construing the applicatory Federal statute 2 which empowers national banks to make contracts and to exercise all powers necessary to carry on the banking business,- that an agreement by a national bank to procure applications for insurance provided the person with whom the agreement is made will procure for it a customer, is ultra vires in the sense that no action can be maintained for a breach of such a contract.

CONSTITUTIONAL LAW: LEGISLATIVE PROHIBITION OF SCANDALOUS PUBLICATIONS. -The Legislature of Kansas passed, in 1891, a statute, prohibiting, under a penalty, the issuing of publications containing

ion in this last case, said: "Our rule holds that, the use of locomotive engines in the business of railroads being lawful, no presumption of negligence arises from the mere fact that fire has been communicated by them." Field v. New York Cent. R. Co., 32 N. Y. 339, 350, separate opinion by Davis, J.; citing Rood v. New York &c. R. Co., supra, and Sheldon v. Hudson River R. Co., 14 N. Y. 218. It is to be observed that no such question was involved in the case of Sheldon v. Hudson River R. Co., supra. There is, indeed, a subsequent holding in New York to the effect that the fact that property in the vicinity of a railroad is consumed by fire, originating from sparks emitted by a passing locomotive does not necessarily imply that the railroad company has been guilty of negligence. Collins v. New York &c. R. Co., 5 Hun (N. Y.), 503; s. c. affirmed without an opinion, 71 N. Y. 609. In McCaig v. Erie R. Co., 8 Hun (N. Y.), 599, the same doctrine is reaffirmed with

the qualification that it does not apply where the emission of the sparks is unusual in degree or character, or where they are of extraordinary size, such as would not be emitted from perfectly constructed locomotives. A decision of the Supreme Court of Pennsylvania has been quoted to the same effect, and perhaps that is what it decided; but the decision is of little value, owing to the fact that the court, assuming the province of the jury, decide the question on the whole evidence, that given for the defendant as well as that given for the plaintiff. If the court had decided that proof of the mere fact that buildings were ignited by sparks from a passing locomotive was not evidence of negligence, and had stopped there, the decision would be of some value of authority; but the court balanced the evidence and sat as a jury, instead of exercising the proper office of an appellate court. 1 42 N. E. Rep. 567.

2 Rev. Stat. U. S., § 5136, cls. 3, 7.

scandalous and obscene matters. In re Banks.1 The Supreme Court of Kansas holds that this statute is not unconstitutional, and that, in order that a publication may fall within the prohibition of the act, it is not necessary that more than one-half its columns, or any definite number of them, be filled with items condemned by the statute; but it is sufficient that such items are a prominent feature and especially characteristic of the publication.

PARTNERSHIP: RETIRING PARTNER SELLING THE GOOD-WILL SOLICITING CUSTOMERS OF THE OLD FIRM.-The protection of that unsubstantial and yet very important species of commercial property known as good-will has always been a favorite object of English courts; but we recall no decision which has gone further in that direction than the recent decision of the House of Lords in the case of Trego v. Hunt.2 Their Lordships held, according to the syllabus, as follows: When the good-will of a business is sold the vender does not, by reason of that sale only, in the absence of any covenant, impose upon himself any obligation not to carry on a competing business. But as the connection formed with customers constitutes the good-will of a business, a man who has parted with the good-will, must not avail himself of his special knowledge of the old customers to attract them to his competing business. The appellant and the respondent carried on a business in partnership on the terms that, on the expiration of the partnership by the effluxion of time, the good-will of the business should belong to the appellant. Held (reversing the judgment of the court below) that the appellants were entitled to an injunction restraining the respondent from canvassing in any way, by himself or his agents, any person who had been, prior to the dissolution of the partnership, a customer of the firm, with a view of inducing such person to deal with him after such dissolution." It should be added that Mr. Justice Stirling, who decided the case in the first instance, and the Court of Appeal were governed in their determination by the question of the previous decision of the Court of Appeal in the case of Pierson v. Pierson, where it was held that, although the good-will of the business belongs to one of the partners, it is lawful for the other, on

4

1 42 Pac. Rep. 694.

2 73 Law Times Reports, 514. See also our department of "Notes" in the present number.

8 The case in the court below is

reported in 72 Law Times Reports, 269, officially [1895], 1 Ch. 462.

4 27 Ch. Div. 145; s. c. 51 L. T. Rep. 311.

the determination of the partnership, to canvass the customers of the late firm. Their Lordships conceded that, consistently with that decision, it would have been impossible for Mr. Justice Stirling, or for the Court of Appeal, to grant an injunction in the present case; but as the House of Lords was not bound by that decision, the question lay open to their Lordships for a reconsideration of it upon principle; and they accordingly reconsidered it, apparently with care and attention, and overruled the decision just referred to. In so doing, they reaffirmed a decision rendered by that eminent equity judge, Lord Romilly, M. R.1

2

CRIMINAL PROCEDURE: POWER OF PROSECUTING ATTORNEY TO ENTER A NOLLE PROSEQUI WITHOUT CONSENT Of the Court. In three recent cases the Supreme Court of Louisiana have lately held, after an extensive review of judicial authorities, that the State's attorney has no power to enter a nolle prosequi in a criminal case, without the consent of the court, after verdict and before judgment. Our learned contemporary, the National Corporation Reporter, approves this decision and gives an excellent certificate of character to Judge Moïse, who refused to accede this power to the State's attorney. Doubtless what is said in favor of the character of Judge Moïse is well said; but it nevertheless seems that the weight of judicial authority is, and always has been, to the effect that the power to enter a nolle prosequi in a criminal case is an absolute power in the prosecuting officer of the Crown and of the State before the commencement of trial; that it is suspended during the trial; but that it revives after verdict and until sentence. interest our learned friend of the National Corporation Reporter to know that Dr. Joel Prentiss Bishop, certainly the greatest living master of criminal law, gave an opinion in opposition to the ruling of Judge Moïse, which opinion was probably not even read by the Supreme Court of Louisiana. At least we have seen a letter of Dr. Bishop stating his belief that it was not read.

It may

CORPORATION: PAYMENT OF INTEREST ON SHARES -PAYMENT OF INTEREST ON SUMS PAID IN BY SHAREHOLDERS IN ADVANCE OF CALLS.-In Lock v. Queensland Investment &c. Co.,3 it is held by the English Court

1 Labouchere v. Dawson, L. R. 13 E. Q. 322; s. c. 25 L. T. Rep. 894.

2 State v. Clock, 18 S. Rep. 942;

State v. Moïse, Judge, 18 S. Rep. 956;
State v. Moïse, 18 S. Rep. 943.

3 73 Law Times Rep. 720.

of Appeal, affirming a decision of Stirling, J., that payment out of the capital of a limited company of interest on sums paid up on shares in advance of calls is not equivalent to a return of capital to the shareholders; and therefore a provision in the articles of association of the company authorizing such a payment is not ultra vires, but the payment can be legally made. Lord Justice Lindley, who writes the opinion of the court, makes it clear that the transaction here stated is not a payment of interest on shares, but is merely the payment of interest on share capital paid in in advance of the proper time of payment, which interest ceases when the proper time of payment arrives. other words, it is merely the payment of a premium in the form of interest, to induce shareholders to pay in their share capital promptly. In so holding, the court follow an Irish case, and distinguished two important English cases. 3

In

FRAUD AND DECEIT: LIABILITY FOR ISSUING FRAUDULENT PROSPECTUS INDUCING THE PURCHASE OF WORTHLESS SHARES.- In Andrews v. Mockford, the English Court of Appeals have rendered a decision in line with previous holdings in that country, to the general effect that where men, by a publication in whatever form, turn loose a lie to deceive whomsoever it may catch, and entrap him into investing his money in a bogus or fraudulent scheme, and he is so entrapped, he will have an action against them for damages for the deceit. In that particular case, the promoters of a company issued prospectuses to the public, and sent a copy to the plaintiff amongst others. The company was a sham and the prospectus fraudulent. The plaintiff read the prospectus, but did not apply for shares. Afterwards the defendants caused to be published in a financial newspaper a telegram concerning the company which to their knowledge was false. The plaintiff, on reading the telegram, purchased shares in the company in the market, and thereby suffered damage which he sought to recover from the defendants. the trial the jury found (inter alia) that one of the objects which the defendants had in view, both when issuing the prospectus and when publishing the telegram, was to induce the plaintfff as one of the public to purchase shares in the company in the market. Upon an application

1 73 Law Times Rep. 708.

2 Dale v. Martin, L. R. Ir. Ch. 498; s. c. affirmed, 11 Id. 371.

3 Trevor v. Whitworth, 57 L. T. Rep. 457; 12 App. Cas. 409, and The

At

Ooregum Gold Mining Company Limited v. Roper, 66 L. T. Rep. 427 (1892), A. C 125.

4 73 Law Times Rep. 726.