Open main menu

Page:Harvard Law Review Volume 2.djvu/253

This page needs to be proofread.


That an attorney may, without special anthority from hit dient, dismiss a suit, extend time of payment, and, when he is employed in sereral snits, stipulate that the decision of one shall determine the others, see note at end of this case.

GoutiERS — Intoxicated Passenger. — Partial intoxication does not ex- cuse want of ordinary care and prudence on the part of a passenger, and a rail- road company need exercise no higher degree of care towards a person partially intoxicated than is required in case of persons not intoxicated. Missouri Pac. Ry, Co. V. Evans, 9 S. W. Rep. 325 (Tex.).

CoNFUCT OP Laws — Capacity to Contract — Lex Loa. — ^Tiere a female infant executed in Ireland, where she was domiciled, an antenuptial con- tract, relinquishing all her rights of dower, it being contemplated at the time that she would live after the marriage in Scotland, it was held^ on the death of the husband, thai since her capacity to bind herself by the marriage contract must be determined by the law of the place where she was domiciled and where the con- tract was made, and since, under the Irish law, an infant cannot incur any except a beneficial obligation, she was at liberty to avoid the contract, and claim her rights as a widow under the Scotch law. **The principle of international private law, which makes, in certain cas^ the law of the place where it is to be per- formed the legal test of the validity of a contract, rests, in the first place, upon the assumption that the parties were, at the time when they contracted, both capable of giving an effectual consent; and, in the second place, upon an inference derived from the terms of the document, or from the circumstances of the case, that they mutually agreed to be bound by the lex loci solutionis in all questions touching its validity," and can have "no application to a case in which, at the time when they professed to contract, one of the parties was, according to the law of that party's domicile, and also of the place of contracting, incapable of giving consent." Cooper v. Cooper, 13 App. Cas. 88 (Eng.).

It is to be regretted that in this case, since the contract was made in the country where the woman was domiciled before marriage, the Lords were not called upon to decide the interesting question whether the capacity to contract depends on the law of the contractor's domicile, or on the law of the country where the contract is made. Lord Halsbury, L. C, expresses a decided opinion that the laws of the domicile should govern in such a case, and not the lex loci con- tractus, relying chiefly on the authority of Story's Conflict of Laws, § 64. The other Lords seem to be in doubt.


Legislation — Local Option. — A local-option law, providing that, if the majority of the voters of any country shall vote against the sale of intoxicating liquors^ no liquor license shsdl be granted in that county, is a lawful delegation of power by the Legislature, and is not in conflict with a constitutional provision that "the Legislature shall not pass private, local, or special laws regulating the internal affairs of towns and counties." State v. Circ. Ct, of Gloucester Co,^ 38 Alb. L. J. 348 and 370 (N. J. Ct. of Errors & Appeals).^

This case also decides that a license law which establishes a different minimum license fee for the different towns and cities of the State, according to population, is not a violation of the constitutional provision against "local or special" laws, supra ^ but is a valid general classification.

The court was divided on each of the two propositions of the case, eight judges being for the majority opinion, and seven dissenting. A long opinion, with full discussion, supports each view.

See State v. Pond, 6 S. W. Rep. 469 (Mo.), digested 2 Harv. L. Rev. 49, for the view that a local-option law is not a delegation of legislative power, but is a law to take effect upon the happening of a future contingency, namely, the vote of the people of the respective localities.

Constitutional Law — Interstate Commerce — " Drummer Tax." — A Texan statute, imposing a license tax on all drummers selling goods by sample, or otherwise, although a valid tax upon drummers who are inhabitants of the State, is an invalid tax upon drummers who are citizens of other States, being, to this extent, an unconstitutional regulation of interstate commerce. Asker v. State of Texas^ 9 Sup. Ct. Rep. I.

Robbins v. Taxing Dist., 120 U. S. 489, digested i Harv. L. Rev. 108, is fol- lowed as an authority without further discussion, and Asher v. State of Texas^ 5 S. W. Rep. 91 (Tex.), b reversed.

In Robbins v. Taxing Dist.^ ^ M/ra, it will be remembered Waite, C. J., delivered

> [5. C. Paul V. Gloucttter Co., 50 N. J. Law s^j.]