anticipation of increased business in return.16 And, while properly allowing for differences in the cost of carrying articles of varying value,17 the public service law is coming more and more to condemn rates graduated according to what it is worth while to the patron to pay,18 or according to the purpose to which the identical service is to be put.19 Consequently, if this law is to develop consistently, it would seem that neither the sociological nor the economic advantages of encouraging suburban communities 20 should justify the accommodation of their peculiar necessities by any modification of rates not in proportion to some difference in the cost of service.21 However, although the railroad adopting such a policy may not at present be condemned by the law,22 yet the position seems to be clear that this is a discrimination against other localities and in favor of a particular class which should not be ordered by the state.23

THE STATUS OF A STOCKHOLDER. The doctrine that the assets of a corporation constitute a "trust fund" for the benefit of its creditors had its origin in a dictum of Judge Story, and was adopted by a large majority of the American courts.2 The doctrine was applied to two essentially different classes of cases. It led the courts to say that a corpo

cannot be done "to an unreasonable degree." Interstate Commerce Commission v. Louisville & N. R. Co., 118 Fed. 613. See Union Pacific Ry. Co. v. Goodridge, 149 U. S. 680, 690, 13 Sup. Ct. 970, 974.

16 Hilton Lumber Co. v. Atlantic Coast Line R. Co., 136 N. C. 479, 48 S. E. 813; Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73, 135 S. W. 768. Contra, Hoover v. Pennsylvania R. Co., 156 Pa. St. 220, 27 Atl. 282.

17 Interstate Commerce Commission v. Delaware, L. & W. Ry. Co., 64 Fed. 723. 18 Tift v. Southern Ry. Co., 138 Fed. 753; Philadelphia & R. Ry. Co. v. Interstate Commerce Commission, 174 Fed. 687. See 2 WYMAN, PUBLIC SERVICE CORPORATIONS, § 1224, 1388; 23 HARV. L. REV. 648. But see Interstate Commerce Commission v. Chicago, Great Western Ry. Co., 141 Fed. 1003, 1015.

19 Baily v. Fayette Gas-Fuel Co., 193 Pa. St. 175, 44 Atl. 251; Postal Cable Tel. Co. v. Cumberland Tel. & Tel. Co., 177 Fed. 726; In the Matter of Restricted Rates, 20 Interst. C. Rep. 426.

20 Cf. Chicago, R. I. & P. Ry. Co. v. Interstate Commerce Commission, 171 Fed. 680. The federal court held that the commission should not regard the relative economic or commercial advantages of different localities in fixing rates. This was reversed by the Supreme Court, on the ground, however, that the commission had not in fact attempted to do so. 218 U. S. 88, 30 Sup. Ct. 651. See Brewer v. Central of Georgia Ry. Co., 84 Fed. 258, 268. But cf. Southern Ry. Co. v. Atlanta Stove Works, 128 Ga. 207, 57 S. E. 429; State v. Minneapolis & St. L. R. Co., 80 Minn. 191, 83

N. W. 60.

21 See 2 WYMAN, PUBLIC SERVICE CORPORATIONS, §§ 1395, 1396; 20 HARV. L. REV. 523.

22 See BEALE & WYMAN, RAILROAD RATE REGULATION, § 529.

23 On this ground, the Interstate Commerce Commission held itself powerless to restrain the subsequent contraction of the zone within which commutation tickets were sold. Sprigg v. B. & O. R. Co., 8 Interst. C. Rep. 443. Cf. Galveston Chamber of Commerce v. Railroad Commission, 137 S. W. 737, 745, 748 (Tex. Civ. App.); Lake Shore & M. S. R. Co. v. Smith, supra.

1 Wood v. Dummer, 3 Mason (U. S.) 308.

2 "Ever since the case of Sawyer v. Hoag, 7 Wall. 610, it has been the settled doctrine of this court that the capital stock of an insolvent corporation is a trust fund . . ." Handley v. Stutz, 139 U. S. 417, 427, 11 Sup Ct. 530, 534. See 9 HARV. L. REV. 481.

ration could not prefer, in the payment of its obligations, those creditors. who were also stockholders.3 It also furnished a reason why a corporation could not release subscribers to its capital stock after creditors had made advances relying thereon. It soon appeared, however, that the doctrine went too far. It was readily admitted that there was no trust in a strict sense, and that nothing was to be gained in using the phrase metaphorically. Failing the reason, the result in the first class of cases shifted until it became well settled that a corporation, as well as an individual, could prefer whatsoever creditor it pleased. But in the second class of cases the decisions remained uniform that a subscriber to the capital stock of a corporati n could not be released from his obligation to pay the par value of his stock so as to defeat creditors. As these decisions could no longer be based on the indefinite theory of a "trust fund," the courts sought sufficient legal reasons on which to base their results. The Minnesota court 8 maintained that the doctrine of "fraud upon creditors" would sustain the cases and held that a corporation could therefore release its subscribers so as to bar subsequent creditors. A recent California case held that the release of a subscriber who was, by statute, made absolutely liable for the debts of the corporation, prevented subsequent but not prior creditors from reaching him. Thomas v. Wentworth Hotel Co., 117 Pac. 1041.

9

But such fraud alone will not explain the liability of a stockholder in all its phases, for many courts have held that the subscriber cannot plead the fraud of the corporation, by which he was induced to subscribe, when sued by a creditor.10 Of necessity, because of the nature of a corporation, the relation of stockholder and corporation is sui generis, and creates rights and liabilities that cannot be explained on ordinary legal principles." Although the relationship may be created without any formalities by the mere consent of the parties, when once entered into, duties to third parties result from which the original parties are powerless to relieve themselves, and this relationship may thus be likened to a status. A subscriber's duty to pay for his stock is more than a mere duty to pay a debt. For he cannot set off against it so as to defeat creditors obligations due to him from the corporation,12 and the Statute of Limitations does not begin to run in his favor until a "call" has been made by the corporation.13 Although the courts have frequently spoken of "representations made by the subscriber to the creditors," 14 a true

3 See 15 HARV. L. REV. 409.

4 Hawley v. Upton, 102 U. S. 314; Flinn v. Bagley, 7 Fed. 785. See 25 Am. L. Rev. 940.

5 McDonald v. Williams, 174 U. S. 397, 19 Sup. Ct. 743.

6 Hollins. Brierfield Coal & Iron Co., 150 U. S. 371, 14 Sup. Ct. 127.

7 Gould v. Little Rock, etc. Ry. Co., 52 Fed. 680; New Hampshire Savings Bank

. Richey, 121 Fed. 956. See 3 NORTHWESTERN L. REV. 115, 206. The rule in England

is the same. In re Wincham Shipbuilding, Boiler & Salt Co., 9 Ch. D. 322.

8 Hospes v. Northwestern, etc. Co., 48 Minn. 174.

The statute was held constitutional in a previous case. Thomas v. Wentworth

Hotel Co., 158 Cal. 275, 110 Pac. 942.

10 See 24 HARV. L. REV. 147; 22 id. 58.

11 See 34 AM. L. REG. N. S. 448.

12 Sawyer v. Hoag, 17 Wall. (U. S.) 610.

13 Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739.

14 "The creditors had a right to rely upon the fact that the subscribers to such stock

estoppel cannot be spelled out; and yet if a creditor knows of facts which give the stockholder a defense against the corporation, he cannot hold the subscriber.15 As the capital stock is not a liability of the corporation,16 a release of a subscriber would be a gift that creditors could have set aside. But this does not explain the cases where the release was given for a consideration, for there the stockholder, as in the principal case, can still be held by prior creditors. Perhaps the truest explanation is that "the courts have been doing legislative work" with a "more or less systematic judicial recognition of a demand of the commercial world.” 17

PRESCRIPTIVE RIGHT OF PUBLIC AND OF FREEHOLD INHABITANTS TO FISH IN PRIVATE WATERS.-Several interesting questions of prescription were settled in two recent cases in the House of Lords. Johnston v. O'Neill, [1911] A. C. 552; Harris v. Earl of Chesterfield, [1911] A. C. 623. In the first, four1 of the seven lords held that a right to fish in private2 waters cannot be acquired by the public by immemorial user. The decision of the majority is amply sustained by authority, though this is the first time the question has come before the House of Lords. A right of fishing in another's waters is a profit à prendre, a right to take a part of the produce of the land, as distinguished from an easement, which is a right without profit. A profit à prendre is incapable of creation except by grant or prescription. In the principal case there is no dominant estate to which a right by prescription could be attached," nor can a grant in gross be presumed, for the unorganized public is incapable of taking by grant." Thus the right, if any, must rest solely upon have put into the treasury of the corporation, in some form, the amount represented by it.' Handley v. Stutz, 139 U. S. 417, 430, 11 Sup. Ct. 530, 535.

15 Coit v. Gold Amalgamating Co., 119 U. S. 343, 7 Sup. Ct. 231. 16 Bridgman v. City of Keokuk, 73 Ia. 42, 33 N. W. 355.

17 See 34 Am. L. REG. N. S. 448, 456.

1 The Earl of Halsbury and Lords Macnaghten, Dunedin, and Robson. Lord Ashbourne, although not passing directly on the question, agreed with the majority, while Lord Shaw of Dunfermline intimated a contrary view. The Lord Chancellor dissented from the majority on the ground that the plaintiff had no title upon which

to sue.

2 An incidental question decided in the case is that a non-tidal lake of whatever size, even though actually navigable, does not belong as of right to the Crown. This follows the English rule as to rivers. See Lord Leconfield v. Lord Lonsdale, L. R. 5 C. P. 657, 665. But the rule as to large lakes had not previously been conclusively settled. See Johnston v. O'Neill, supra, 572. The rule here established is contrary to the general holding in the United States. Percy Summer Club v. Astle, 163 Fed. 1; Sloan. Biemiller, 34 Oh. St. 492. But cf. Adams v. Pease, 2 Conn. 481. For a discussion of the opposite views, see 3 KENT COMM. 429, note a; 2 FARNHAM, Waters AND WATER RIGHTS, § 368 c.

3 Smith v. Andrews, [1891] 2 Ch. 678; Murphy v. Ryan, Ir. R. 2 C. L. 143; Albright v. Cortright, 64 N. J. L. 330, 45 Atl. 634.

Lloyd v. Jones, 6 C. B. 81; Peers v. Lucy, 4 Mod. 362; Cobb v. Davenport, 33 N. J. L. 223.

5 Grimstead v. Marlowe, 4 T. R. 717; Mellor v. Spateman, 1 Saund. 340 c, note 3. Grimstead v. Marlowe, supra; Ordeway v. Orme, i Bulstr. 183; Merwin v. Wheeler 41 Conn. 14.

I

7 Lloyd v. Jones, supra; Fowler v. Dale, Cro. Eliz. 362; Hill v. Lord, 48 Me. 83.

custom, and although custom will support an easement, it has from early times been held incapable of supporting a profit à prendre.9

In the second case, a right of fishing was claimed by prescription on the basis of immemorial user by the freeholders in certain parishes along a navigable but non-tidal river. Here there were estates to which the right could be attached by prescription. But as the right claimed was a right to take fish without stint and for commercial purposes, four 10 of the seven lords held that it could not be so acquired, for it was not necessary to the enjoyment of the dominant estates, nor was it reasonable, for the estates could be divided indefinitely and thus exhaust the servient estate; so there were no reasonable grounds for presuming a grant. This decision seems correct, for although the very point had not previously arisen, it had in general been held that a profit à prendre claimed as appurtenant to an estate must be reasonably limited to the needs of the estate in which such right was claimed to inhere.11

Another interesting question in the last mentioned case, although raised in the pleadings, was not pressed in the argument, and so was not decided. This is whether the right of fishing, if claimed in gross, could have been sustained. The Lord Chancellor and Lord Ashbourne dissent from the holding of the majority on the ground that a right in gross should be found in the present case by prescription, while Lord Gorrell accords with the majority on the express ground that no right in gross is urged. The Lord Chancellor and Lord Ashbourne follow the case of Goodman v. Mayor of Saltash,12 in which a grant to the free inhabitants of ancient tenements in a borough as a corporation, or a grant to a corporation for the use of the inhabitants, was presumed. The Saltash case can be supported, if at all, only on the ground of a charitable trust.13 The decision, it is submitted, was at least questionable,14 and in a later case 15 Kay, J., refused to apply it to circumstances such that it was not reasonable to suppose there had at one time been a corporation to which the grant could have been made. Lord Gorrell intimates that Harris v. Earl of Chesterfield

8 Race v. Ward, 4 E. & B. 702; Abbot v. Weekly, 1 Levinz 176. It should be noted in this connection that in the United States some jurisdictions hold that no rights whatever can be established by custom, on the ground that there can be no immemorial user in America. Harris v. Carson, 7 Leigh (Va.) 632; Young v. Collins, 2 Browne (Pa.) 292.

"Attorney-General v. Mathias, 4 Kay & J. 579; Gateward's Case, 6 Coke 59 b. Contra, Mayor of Linn-Regis v. Taylor, 3 Levinz 160. The reasons advanced are that such a right would be uncertain, unreasonable, as tending to destroy the subject matter to which the custom applied, and impolitic as establishing an unreleasable incumbrance upon land. Further, while an easement may originate by mere dedication to the public and acceptance by the public authorities, a profit à prendre cannot be acquired by such means. Fitchburg R. Co. v. Page, 131 Mass. 391; Cobb v. Davenport, 32 N. J. L. 369.

10 The Earl of Halsbury and Lords Gorrell, Macnaghten, and Kinnear. Lord Loreburn, L. C., accords in dictum.

11 Scholes v. Hargreaves, 5 T. R. 46; Heyward v. Cannington, 1 Sid. 354; Merwin v. Wheeler, supra. See 2 BL. COMM. 265.

12 7 App. Cas. 633.

13 GRAY, THE RULE AGAINST PERPETUITIES, §§ 581-583.

14 Rivers v. Adams, 3 Ex. D. 361; Weekly v. Wildman, 1 Ld. Raym. 405; Hill v. Lord, supra. But cf. Willingale v. Maitland, L. R. 3 Eq. 103; Chilton v. Corporation of London, 7 Ch. D. 735

15 Tilbury v. Silva, 45 Ch. D. 98.

embodies such circumstances. The view of the minority extends the Saltash case to prescription by freeholders of certain parishes and is thus harder to reconcile with authority than the case followed.16 It is to be regretted that the majority did not pass upon this question, and thus decide whether such unreleasable rights should be allowed to be further extended.17

ANCILLARY APPOINTMENT OF RECEIVERS IN FEDERAL COURTS. — A bill seeking the appointment of a chancery receiver must show a right to some distinct equitable relief. Moreover the United States Supreme Court early decided that a receiver had no power outside of the jurisdiction in which he was appointed. Under this doctrine, the receiver must obtain some appointment from the courts in the other jurisdictions where he wishes to sue.3 A recent case decided that a receiver already appointed in one federal jurisdiction was not properly appointed “ancillary" receiver in another federal jurisdiction after an ex parte hearing of a bill which merely asked for confirmation of his appointment in the original jurisdiction and showed no right to distinct equitable relief. Fairview Fluor Spar and Lead Co. v. Ulrich, 44 Chic. Leg. News 81 (C. C. A., Seventh Circ.).

On

The reason why a receiver has no extra-territorial power is because he has no title to the assets or property, but is merely invested by the court of his appointment with the power of gathering them in, and this investiture of power need not be recognized in other jurisdictions. the other hand, as a practical matter, foreign receivers are allowed to sue in most of the state courts, and some federal courts, though admitting the general rule laid down by the Supreme Court, allow foreign receivers to sue as a so-called matter of comity.10 Comity in this connection 16 Bland v. Lipscombe, 4 E. & B. 713 n. c; Whittier v. Stockman, 2 Bulstr. 86. 17 See GRAY, THE RULE AGAINST PERPETUITIES, § 579.

9

1 See 3 STREET, FEDERAL EQUITY PRACTICE, § 2541. So a bill that asks only for the appointment of a receiver will not be entertained. Greene v. Star Cash & Package Car Co., 99 Fed. 656.

2 Booth v. Clark, 17 How. (U. S.) 322; Great Western Mining & Mfg. Co. v. Harris, 198 U. S. 561, 25 Sup. Ct. 770. See Hale v. Allinson, 188 U. S. 56, 68, 23 Sup. Ct. 244,

249.

3 Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 69 Fed. 871. See HIGH, RECEIVERS, § 47; 3 STREET, FEDERAL EQUITY PRACTICE, § 2692.

4 It is not technically an “ancillary" bill. Coltrane v. Templeton, 106 Fed. 370.

5 A receiver may be appointed ex parte under certain special circumstances. See 3 STREET, FEDERAL EQUITY PRACTICE, § 2551.

6 Accord, Mercantile Trust Co. v. Kanawha & Ohio Ry. Co., 39 Fed. 337; In re Brant, 96 Fed. 257. Contra, Platt v. Philadelphia & Reading R. Co., 54 Fed. 569. See Greene v. Star Cash & Package Car Co., supra.

7 A receiver that has title either by statute or assignment may sue of right in a foreign jurisdiction. Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739; Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888.

8 See ALDERSON, RECEIVERS, § 28.

Bank v. McLeod, 38 Oh. St. 174; Metzner v. Bauer, 98 Ind. 425; Runk v. St. John, 29 Barb. (N. Y.) 585. See HIGH, RECEIVERS, § 47.

10 Rogers v. Riley, 80 Fed. 759; Kirtley v. Holmes, 107 Fed. 1; Lewis v. Clark, 129 Fed. 570. See Chandler v. Siddle, 3 Dill. (U. S.) 477, 479. Contra, Fowler v. Osgood, 141 Fed. 20; Hilliker v. Hale, 117 Fed. 220.