the Supreme Court held them to be confiscatory. One of the carriers then brought action against a shipper for the difference between the rate prescribed by the statute and a reasonable rate. And the North Dakota court has recently held that it is not entitled to recover. The carrier, of course, had contended that the rates had always been unreasonable; that therefore it had, during the period covered by the statutory rates, been serving the shipper at an unjust and illegal compensation; that to the extent of the excess of value of service over prescribed rate, it under mistake or duress had given value in return for no consideration; in short, that the shipper was unjustly enriched at its expense. On the other hand, the reasoning of the court is that there was no contract, express or implied in fact, on the part of the shipper to refund in case the Supreme Court later found the rates to be confiscatory; that so far as recovery was to be based upon unjust enrichment, the situation of the carrier was similar to that of the plaintiff in Windbiel v. Carroll. There the plaintiff paid the defendant's claim insisting that he did not owe it, and later found a receipt conclusively showing that his belief was correct; yet he was unable to recover. The court distinguished between payment in ignorance of a fact and payment in ignorance of the means of proving a fact. If a plaintiff cannot produce the requisite proof of what he knows to be true, the law will not aid him. This principle, generally regarded as settled, may conceivably, however, not extend to the principal case, where the only way of ascertaining the facts of a complicated situation is by a period of experimentation. The North Dakota court further found that, so far as the Supreme Court had in the past interpreted the decree, "without prejudice," that decree provided for future conditions that might arise and did not permit overthrowing what was already concluded.

8

It is commonly stated that money paid under a mistake of law cannot be recovered. If this principle were sound, it would be a strong argument in favor of the North Dakota decision. It is not the present purpose to discuss the correctness of this doctrine, which has been attacked by text-writers, is not accepted in all jurisdictions, and is subject to so many exceptions as to create a doubt as to its existence." Irrespective of its soundness the principal case may be supported. In Henderson v. Folkstone Waterworks Co.,10 the plaintiff paid a water tax which had been held to be legal. Later the House of Lords held the

3 236 U. S. 585.

4 Minneapolis & St. P. & S. S. M. Ry. Co. v. Washburn L. C. Co. (N. D.) 168 N. W. 684.

5 16 Hun (N. Y.), 101.

WOODWARD, QUASI CONTRACTS, § 13; KEENER, QUASI CONTRACTS, 27.

7 WOODWARD, QUASI CONTRACTS, 836; KEENER, QUASI CONTRACTS, 85-95; Stadden, "Error of Law," 7 COL. L. REV. 476; 2 POMEROY, EQ. Jur., §§ 841–51. Northrop v. Graves, 19 Conn. 548; Scott v. Board of Trustees, 132 Ky. 616, 116 S. W. 788.

Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 567; Varnum v. Highgate, 65 Vt. 416, 26 Atl. 628; Marcotte v. Allen, 91 Me. 74; 39 Atl. 346, County of Wayne v. Reynolds, 126 Mich. 231, 85 N. W. 574; Haven v. Foster, 9 Pick. (Mass.) 112 (1829). In re Ainsworth, [1915] 2 Ch. 96; Culbreath v. Culbreath, 7 Ga. 64.

10 1 T. L. R. 329 (1885).

tax illegal; yet the plaintiff was unable to recover. Lord Coleridge said: "Here at the time the money was paid, which was before Dobbs's case, the law was in favor of the company, and there was no authority to show that it could be recovered back on account of a judicial decision reversing the former understanding of the law." The case has been followed in the United States," though there are opinions to the contrary.12 The true theory of such cases is not that decisions of the courts are evidence of the law, that the earlier decision is merely a poor exposition of the rule, that the law was always in accordance with the later judgment, and that money paid under mistake of law is lost to the payer; but that decisions of the courts make the law,13 that the payment was in truth a legal payment at the time it was made, and, there being no mistake, it cannot be recovered. The view of the analytical jurists, that the judges make the law, has as much application where a court has vacillated in considering the constitutionality of a statute, as where it has changed its mind on a principle of the common law.14 Nor can the carrier claim that it rendered the services under duress and that value so given without consideration may be recovered. For, if the duress is according to law at the time exercised, the defendant can stand on his legal rights then acquired, although the highest court later sees fit to change the rule for the future.

It is true that the decree of the Supreme Court of the United States under which the North Dakota carriers rendered the statutory services was peculiar in that it contained the provision "without prejudice." The court's own opinion of the nature of this decree, however, seems to be that it is final as to transactions between it and any subsequent decree prescribing a different rule. Whether the object of the reservation is as ordinarily to give the carrier or the state, as the case may be, an opportunity to demonstrate by actual practice a question difficult of proof without experiment,15 or to leave a loophole for change of circumstances,16 the Supreme Court has felt this qualification "not to leave open the controversy as to the period with which the decree dealt and which it concluded." 17

11 Metzger v. Greiner, 9 Ohio C. Ct. R. (N. s.) 364; Kenyon v. Welty, 20 Cal. 637. And see Hardigree v. Mitchum, 51 Ala. 151; Pittsburgh Co. v. Lake Co., 118 Mich. 109, 76 N. W. 395; Lejon v. Richmond, 2 Johns. Ch. (N. Y.) 51; Harris v. Jex, 55 N. Y. 421 (1874).

12 Centre School Township v. State, 150 Ind. 168, 49 N. E. 961.

13 GRAY, NATURE and Sources of THE LAW, 88 465-512, 535-50; 2 AUSTIN, JUR., 4 ed., 655; Gelpcke v. Dubuque, 1 Wall. (U. S.) 175; Kuhn v. Fairmont Coal Co., 215 U. S. 349. For the view that judicial decisions are merely evidence of preëxisting law see I BLACKSTONE, COMMENTARIES, 68–71, 4 ILL. L. REV. 533; Swift v. Tyson, 16 Pet. (U. S.) 1.

14 Gelpcke v. Dubuque, 1 Wall. (U. S.) 175.

15 Knoxville . Water Co., 212 U. S. 1, 19; Willcox v. Consolidated Gas Co., 212 U. S. 19, 54, 55; Northern Pacific Ry. v. North Dakota, 216 U. S. 579, 581; Louisville v. Cumberland Tel. & Tel. Co., 225 U. S. 430, 436; Des Moines Gas Co. v. Des Moines, 238 U. S. 153, 173.

16 Minnesota Rate Cases, 230 U. S. 352, 473.

17 Missouri v. C. B. & Q. R. R., 241 U. S. 533, 541. Here statutory rates had been enjoined by the United States Circuit Court. On appeal to the Supreme Court the injunction was dissolved without prejudice. The state then brought original action in the Supreme Court for excess fares paid by the officers. The carrier again at

On the whole, then, the recent North Dakota decision seems sound. The result in this instance throws the expense of the experiment on the carrier. But it is not the first time the carrier has been so burdened.18 And, had the earlier decision declared the rates unconstitutional and the later declared them fair, the principle could have been invoked by the carrier to throw laboratory expenses upon the state.

RECENT CASES

ANIMALS TRESPASS ON LAND DAMAGES. — Defendant's sheep trespassed on plaintiff's land and while wrongfully there developed scab, in consequence of which they were detained two and a half months in a barn and meadow on plaintiff's land under the provisions of a statute. Plaintiff's sheep which had been in contact with the trespassing sheep were also detained. There was no evidence that defendant knew the sheep were diseased. Held, distinguishing Cox v. Burbidge, 13 C. B. N. S. 430 and Cooke v. Waring, 2 H. & C. 232, that plaintiff might recover as damages for the trespass the keep of the sheep, depreciation of plaintiff's sheep, expense of dipping the sheep, and loss of profits. Theyer v. Purnell, [1918] 2 K. B. 333. For discussion of this case, see NOTES, page 420.

ASSIGNMENTS PRIORITIES TRUSTS RULE IN DEARLE VERSUS HALL NOT APPLICABLE IN DETERMINING PRIORITY BETWEEN Cestui que Trust AND SUBSEQUENT ASSIGNEE. Solicitors executed a declaration of trust in favor of defendant in respect of a mortgage debt secured by a deed upon a reversionary interest in a share of personalty settled by a will. In breach of trust the solicitors purported to assign the same interest to the plaintiff, a bona fide purchaser. The plaintiff gave notice to the trustees under the will, and, having received possession of the title deeds, claims priority over defendant who had not given notice of his interest. Held, that the cestui que trust prevails, the rule in Dearle v. Hall having no application to a beneficiary under a declaration of trust. Hill v. Peters, [1918] 2 Ch. 273.

In England and in some American jurisdictions the obligee of a legal debt cannot transfer it to a bona fide purchaser free of latent equities. Penn v. Browne, Freem. C. 214; In re European Bank, L. R. 5 Ch. App. 358; Bush v. Lathrop, 22 N. Y. 535. Contra, Murray v. Lylburn, 2 Johns. Ch. (N. Y.) 441; Winter v. Montgomery Gas-Light Co., 89 Ala. 544, 7 So. 773. By the weight of authority the assignee of an equitable interest likewise takes subject to all equities; and this is held even by courts which reject the rule in regard to legal obligations. Clouette v. Story, [1911] 1 Ch. 18; Henry v. Black, 213 Pa. 620, 63 Atl. 250. The principal case presents the question whether the fact that the assignee has given notice to the trustee or obligor, the cestui que trust not having done so, gives him priority in spite of the above rule. Where the question is between successive assignees for value in good faith, England and a number of American jurisdictions hold that the first to give notice prevails. Dearle v. Hall, 3 Russ. Ch. 1; Jenkinson v. N. Y. Finance Co., 79 Ñ. J. Eq. 247, 82 Atl. 36. Contra, West Texas Lumber Co. v. Green County, 188 S. W. 283 (Tex. Civ. App.). This rule rests upon the analogy to the duty of a vendee of chattels to take possession in order to make his title indefeasible. See In re Phillips' Estate, 205 Pa. 515, 522, 55 Atl. 213, 215. See also 25

tempted to show the rates confiscatory; but on motion this defense was stricken out. The court declined to pass in advance on the main question in the case. 18 Compare the Adamson Law. Wilson v. New, 243 U. S. 332.

HARV. L. REV. 728. A cestui que trust, however, often has no right to the possession of the res; and moreover the purpose of a trust is to relieve the beneficiary of all duties. The principal case properly protects the cestui in his reliance upon the trustee.

CARRIERS RATES RECOVERY OF BY CARRIER. In 1907 the legislature prescribed maximum rates for the carriage of coal. The carriers refused to comply with the act, and the state brought an action to enjoin its continued violation. An injunction was issued and affirmed without prejudice by the United States Supreme Court in March, 1910. After a period of experimentation the carrier reopened the case, and the injunction was dissolved by the United States Supreme Court in June, 1915. The carrier now seeks to recover from the shipper the difference between the statutory rate and an alleged reasonable rate for shipments made between the dates of the first and second decree of the United States Supreme Court. Held, that carrier could not recover. Minneapolis, St. P. &. S. S. M. Ry. Co. v. Washburn L. C. Co., 168 N. W. 684 (N. D.).

For a discussion of the principles involved see NOTES, page 428.

CONFLICT OF LAWS - JURISDICTION FOR DIVORCE - DOMICILE IN EXTRATERRITORIAL COMMUNITY. The husband's domicile of origin was England, but since marriage the spouses had resided in the British Protectorate of Egypt with intent to make it their permanent home. On the wife's petition for divorce in England, held that the husband had acquired a domicile of choice in Egypt, and that the English court had no jurisdiction to entertain the proceeding. Casdagli v. Casdagli, 146 L. T. J. 3 (1918).

During the rule of the East India Company in India, the English courts held that a person of British nationality in the service of the company could acquire an Anglo-Indian domicile. Bruce v. Bruce, 2 B. & P. 229, note; Forbes v. Forbes, 23 L. J. (Ch.) N. S. 724; Hepburn v. Skerving, 9 W. R. 764. The doctrine was extended to cases of persons who went to India not in the service of the company but on private business of their own. Attorney General v. Fitzgerald, 25 L. J. (Ch.) N. S. 743; Allardice v. Onslow, 33 L. J. (Ch.) N. S. 434. But the cases of Anglo-Indian domicile were later held to be anomalous. See Jopp v. Wood, 34 L. J. (Ch.) N. S. 212, 219; Ex parte Cunningham, 13 Q. B. D. 418, 425; DICEY, DOMICIL, 140, 141, 337. Accordingly, until the decision in the principal case, the English doctrine has been that a British citizen could not acquire a domicile in a foreign country which granted extraterritorial privileges. In re Tootal's Trusts, 23 Ch. D. 532; Abd-ul-Messih v. Farra, 13 A. C. 431. Cf. The Derfflinger, 1 B. & C. P. C. 386; The Lutzow, 1 B. & C. P. C. 528. In breaking away from this doctrine, the court in the principal case is to be commended. Given an abandonment of the domicile of origin, the selection of a new place of residence, and the animus manendi, it would seem immaterial that the community in question does not possess the sovereign territorial power. In re Allen's Will, U. S. COURT FOR CHINA, SHANGHAI TERM, 1907, PAMPHLET; Mather v. Cunningham, 105 Me. 326, 74 Atl. 809. See PIGGOTT, EX-TERRITORIALITY, 1907 ed., 224-26; JACOBS, DOMICIL, § 361. Accordingly, in the principal case, the husband acquired an Egyptian domicile and became subject to that part of the Egyptian law which under the Protectorate was applicable to British subjects. See HALL, FOREIGN JURISDICTION OF THE BRITISH CROWN, 185-86; WESTLAKE, PRIVATE INTERNATIONAL LAW, 5 ed., 345-46; HUBERICH, DOMICILE OF PRIVILEGED FOREIGNERS, 24 L. QUART. REV. 448. Since the husband had lost his English domicile, the English court had no jurisdiction to grant the wife's petition for divorce. Le Mesurier v. Le Mesurier, 1895 A. C. 517; Bater v. Bater, [1906] P. 209. See 26 HARV. L. Rev. 447.

CONSTITUTIONAL LAW SELECTIVE SERVICE REGULATIONS - DECISION BY LOCAL BOARD — JUDICIAL POWER OF REVIEWING ADMINISTRATIVE DETERMINATIONS. The Selective Draft Act provided that the local and district boards finally decide exemption claims under regulations prescribed by the President. (ACT OF MAY 18, 1917, c. 15, 40 STAT. 76.) In filling out his questionnaire an alien friend by mistake waived his claim to exemption, and in ignorance of his right to have his questionnaire corrected, allowed the local board to induct him into service. After having been directed to appear for entrainment, he requested that his case be reopened and his questionnaire corrected. This was denied as, after induction, the local board could not reopen a case, the only remedy under the Selective Service Regulations being an appeal to the commanding officer of the mobilization camp. (SELECTIVE SERVICE REGULATIONS, §§ 99, 100, 139.) Advised that he was being unlawfully deprived of his liberty he refused to report, was arrested, and now applies for a writ of habeas corpus for his discharge. Held, that the petitioner be remanded. Ex parte Kusweski, 251 Fed. 977 (Dist. Ct., N. Dist., N. Y.).

The Selective Draft Act delegating to the President power to prescribe rules for the local and district boards in determining exemption claims, which determination was to be final, was a valid grant of administrative power. Arver v. United States, 245 U. S. 366, 38 Sup. Ct. 159. Administrative determinations of executive officials may be made final on questions of fact. United States v. Ju Toy, 198 U. S. 253; Zakonaite v. Wolf, 226 U. S. 272. Cf. American School of Magnetic Healing v. McAnnulty, 187 U. S. 94. An appeal, however, lies on questions of law. Gonzales v. Williams, 192 U. S. 1; Grogiow v. Uhl, 239 U. S. 3. See 29 HARV. L. REV. 215. Otherwise the only requisite is that a fair hearing or sufficient opportunity for one be given. Chin Yow v. United States, 208 U. S. 8. Ex parte Lam Pui, 217 Fed. 456. In the principal case the Selective Service Regulations were passed affording sufficient opportunities for the reopening and rehearing of cases. (SELECTIVE SERVICE REGULATIONS, $$ 99, 100.) But the petitioner failed to take advantage of such opportunities, and so was not denied a fair hearing. Thus, the decision having been made final by statute, the case falls within the doctrine that in such cases there is no judicial power of review on the ground that such procedure is in violation of the Fourteenth Amendment. Franke v. Murray, 248 Fed. 865; In re Chan Foo Lin, 156 C. C. A. 3, 243 Fed. 137; United States v. Ju Toy, supra. See 2 WILLOUGHBY, CONSTITUTION, 1278 et seq.

CONTRACTS ILLEGALITY CONTRACT MADE AS PART OF A SCHEME THE EXECUTION OF WHICH WOULD RESULT IN THE DISRUPTION OF AN EsSENTIAL WAR PLANT. -B, C, and D were essential employees, under contracts terminable at will, in the only factory in the country engaged in making gas masks. A, in order to disrupt the factory from a spirit of revenge against its owners, secured contracts from B, C, and D, whereby they agreed to work for A and for no one else for two years. In a suit by A for specific performance of the negative covenants, B, C, and D set up the defense of illegality and counterclaim for cancellation of the contracts as against public policy. Held, the contracts are voidable as against public policy and equity will order them canceled. Driver v. Smith, 104 Atl. 717 (N. J., 1918).

Contracts which tend to embarrass the government in its relations with foreign states, e. g., by encouraging insurrection in such states, are against public policy. Kennett v. Chambers, 14 How. (U. S.) 38; Gandolfo v. Hartman, 49 Fed. 181. Trading with the enemy in time of war is illegal at common law. Montgomery v. United States, 15 Wall. (U. S.) 395; Griswold v. Waddington, 16 Johns. (N. Y.) 438. As regards internal affairs, a contract which tends to pervert or corrupt governmental machinery or officials is il