LIAMS, of which the following extract contains the gist: "To see the true character of this legislation we must keep both lines of objection in mind. We must remember that the injury complained of is due to the negligence of a fellow workman, for which the master is responsible neither in law nor in morals. We must also remember that this fellow work man has been designated by the state, his duties defined and his powers conferred by statute, and his employment made compulsory, under heavy penalties, by the same statute. Finally, we must remember that it is the negligence of this fellow servant, whose competency the state has certified, and whose employment the state has compelled, for which the employer is made liable. The state says: He is competent. You must employ him. You shall surrender to his control the arrangements for the security of your employes.' It then says, in effect: If we impose upon you by certifying to the competency of an incompetent man, or if the man to whom we commit the conduct of your mines neglects his duty, you shall pay for our mistake and for his negligence.'"

Contract in

The Supreme Court of Rhode Island has recently announced a very peculiar decision, in Macaulay v. Tierney, 33 Atl. Rep. 1, holding that an agreement by the memRestraint of bers of a national association of master plumbers Trade to withdraw their patronage from any dealer selling supplies to other than master plumbers is not unlawful, even though master plumbers" be construed to mean the members of said association.

As a general rule, a person has the right to deal with whom he pleases, to sell to one, and to refuse to sell to another, or to buy of one, and refuse to buy of another—without regard to the motive which actuates him, and he cannot be held accountable for such action, even if it results in injury to a third party. He has also a right to use any lawful means he pleases to increase his own trade, though the direct result of it is to injure the business of another. Further, what one man may thus do lawfully, any combination of men may do collectively, unless their collective action is of such a

nature that it falls within a prohibitive rule of law that does not apply to individuals. Accordingly, any agreement between individuals, which has for its object the advancement of their own trade at the expense of others, by underselling them, by refusing to deal with them, or by refusing to deal with others who deal with them, is not such a conspiracy or combination in restraint of trade as to render the agreement unlawful, or their acts a cause of action: Mogul Steamship Co. v. McGregor, [1892] App. Cas. 25, affirming 23 Q. B. D. 598; Bowen v. Matheson, 14 Allen, 499: Bohn Mfg. Co. v. Hollis, 54 Minn. 223; S. C...55 N. W. Rep. 1119; Payne v. Western & Atl. R. R. Co., 81 Tenn. 507. But if the acts of the parties to the agreement are such that they do not serve a legitimate purpose, but appear to be wanton and malicious, an action will lie at the suit of the party injured. This is clearly the case when the parties defendant and complainant are not in direct competition, but dependent the one on the other, as when a combination of wholesalers refuse to sell to a retailer, or dealers in supplies refuse to supply a tradesman or manufacturer. Each individual may refuse to sell to the complainant; but if they agree not to sell to him, or induce others not to sell to him, they are clearly acting wantonly, and cannot claim that they are acting within their rights: Delz v. Winfree, 80 Tex. 400; S. C., 16 S. W. Rep. 111; Olive v. Van Patten, (Tex.) 25 S. W. Rep. 428. Such an agreement is a combination in restraint of trade, and therefore illegal; and the very act of inducing another to refuse to deal with the complainant is also illegal. In Jackson v. Stanfield, (Ind.) 36 N. E. Rep. 345, the defendant was an active member of "The Retail Lumber Dealers' Association of Indiana," an organization whose by-laws gave an active member a claim against a wholesaler for selling to a person not a "regular dealer" in that member's community, and required members to refuse to patronize a wholesaler who ignored the decision of the committee appointed to hear the claim. The plaintiff, who was not a "regular dealer," underbid the defendant on a contract, but wholesalers refused to sell to him, because the defendant had previously enforced a claim against a wholesaler who had sold

to the plaintiff, and expressed an intention of continuing to enforce such claims; and the plaintiff was consequently obliged to abandon the contract. It was held that the defend

ant was liable for the amount which the plaintiff lost by abandoning his contract, and would be perpetually enjoined from making a claim under the by-laws of the association against any one who sold to the plaintiff.

It is on this ground of wanton injury that the illegality of a boycott rests. As usually practiced, it has for its immediate object the destruction of the trade of the person boycotted, if he does not comply with some demand made upon him, with the ulterior design of some benefit to the boycotters therefrom; and is not intended primarily to benefit them, with the destruction of the other's trade as an unfortunate, if necessary, incident. This makes the distinction between a legal agreement and an illegal conspiracy. If the facts in any case prove the latter state of affairs to exist, the agreement and the acts done under it are legal, unless, as has been said, the combination is so extensive as to equal a restraint of trade; but if the former condition is proved to exist, the combination and all acts done in pursuance thereof are illegal. In the case in hand, the primary object of the agreement was not to benefit the business of those who entered into it, but to punish the dealer who acted in opposition to their desires, and, pace the court, was therefore illegal; and the complainant was entitled to damages.

Duties

The Court of Appeal of England has recently given a very clear and important definition of the duties of auditors in examining and reporting the financial condition of Corporations, Auditors, a corporation. It held, that though it is not incumbent on them to consider whether the business of the corporation is conducted prudently or imprudently, yet it is to consider and report to the stockholders whether the balance sheet exhibits a true and correct statement of the condition of the affairs of the corporation, and the true financial position of the company at the time of the audit. This must be ascertained by examining the books of the corporation; and

they must take reasonable care that what they certify as to the company's financial position is true. And it is also their duty, cxcept in very special cases, to place before the stockholders the necessary information as to the true financial position of the corporation, not merely to indicate the means of acquiring it. Accordingly, in the case in hand, when an auditor presented a confidential report to the directors, calling their attention to the insufficiency of the securities in which the capital of the company was invested, and the difficulty of realizing them, but in his report to the stockholders merely stated that the value of the assets was dependent on realization, with the result that the stockholders were deceived as to the condition of the corporation, and a dividend was declared out of capital, and not out of income, it was held that the auditor had been guilty of misfeasance under § 10 of the Companies' (Windingup) Act, 1890, and was liable to make good the amount of the dividend paid: In re London & General Bank (No. 2), [1895] 2 Ch. 673. It had been previously decided that the auditors of a corporation are officers" within this act: In re London & General Bank, [1895] 2 Ch. 166.

Preference

Creditors

According to the Court of Chancery of New Jersey, a corporation organized under the laws of that state, which is in an insolvent condition, cannot prefer one of its officers of Officers as as a creditor; and, therefore, when the president of a corporation then insolvent, who was also its creditor to a large amount for cash advanced, brought suit against it on one day, resigned as president and director the next day, and on the third day the directors accepted his resignation, and authorized an attorney to give a cognovit, on which judgment was at once entered, it was held that the president could not have preference by virtue of that judgment: Mallory v. Kirkpatrick, 33 Atl. Rep. 205.

Promoters,

Where individuals associate themselves for the purpose of promoting and organizing a corporation for the pecuniary gain of its members, and act as an association by electIndividual ing directors and other officers through whom contracts are made for and in the name of the proposed corporation, and they afterwards abandon their pur

Liability

pose to form a corporation; their relation, one to the other, as to persons dealing with the association, if not that of partners, is that of agent and principal, and each will be individually liable upon any contracts of the association which he directly or indirectly authorized or ratified. START, C. J., in Roberts Mig. Co. v. Schlick, (Supreme Court of Minnesota,) 64 N. W. Rep. 826.

Courts, Federal, Appellate Jurisdiction

The Supreme Court of the United States, in United States v. American Bell Telephone Co., 16 Sup. Ct. Rep. 69, has lately rendered a decision of great importance, as defining the jurisdiction of that court and the Circuit Court of Appeals. By § 6 of the Judiciary Act of 1891, March 3, 26 Stat. at Large, 828, the decision of the Circuit Court of Appeals is made final “in all cases arising under the patent laws." This the Supreme Court holds to refer only to suits at law and in equity for infringement, and to suits in equity for interference and to obtain patents, but not to suits brought by the United States to cancel patents, and therefore an appeal will lie in such cases from the Circuit Court of Appeals to the Supreme Court

Constitutional

The Australian Ballot Law of Massachusetts (Stat. 1893, Elections, c. 417.) has just been declared constitutional: Law Cole v. Tucker, (Supreme Judicial Court of Massachusetts,) 41 N. E. Rep. 681.

In Parker v. Orr, 41 N. E. Rep. 1002, the Supreme Court of Illinois has decided a number of questions arising under the Ballot Law of that state, holding

Ballots. Validity

(1) That under that statute the provision that the voter shall prepare his ballot by marking in the appropriate margin or place a cross opposite the names of the candidates of his choice, is directory merely, and does not, as does the Indiana statute, render invalid ballots which show on their face that the voters attempted to make a cross in the proper place, but did not fully succeed in doing so; and that ballots marked with a cross made either by crossing the line diagonally (X) or vertically (—), were valid :