have their domicil. Long v. Commissioners, 2 Knapp P. C. 51; The Queen v. Arnaud, 16 L. J. N. S. 50. Since the civil law societies, or so-called partnerships, are as much juridical persons as are English or American corporations, this rule was properly applied by the commission to a société en commandite. 2 Calvo, Droit International, 227, § 737; Liverpool, etc., Co. v. Agar et al., 14 Fed. Rep. 615. The dissenting opinion of the Commissioner for the United States is based upon the erroneous conception that the civil law recognizes a distinction between business organizations similar to the common law distinction between corporations and partnerships. Ordinarily a government will not intervene on behalf of its citizens for injuries to a foreign corporation in which they are interested, upon the ground that such corporations are citizens of the country where created. U. S. Foreign Affairs, 1866, part iii. 522, 525. It is argued in the dissenting opinion that the application of this rule to civil law commercial societies, as in the principal case, gives unequal privileges to foreigners who form partnerships in the United States or England, and persons forming such a society as Alsop and Company in other countries. But this objection has no weight, since those who desire to carry on business in a foreign country where the civil law prevails can do so through partnerships or corporations formed in their native country. If business men desire to form companies in foreign countries they must accept the disadvantages as well as the benefits necessarily resulting. They do not become denationalized, but they choose to act through a foreign citizen. Furthermore, in such cases a citizen does not entirely lose the protection of his own government. Le More v. U. S., 4 Moore International Arbitrations 3311.

The decision in the principal case is also of interest in connection with an anomalous rule applied by the federal courts. It is held, in an action by or against a corporation, where jurisdiction depends upon the citizenship of the parties, that the real parties are the stockholders, and that they are "conclusively presumed" to be citizens of the state or country in which the corporation was created. Steamship Co. v. Tugman, 106 U. S. 118. This legal fiction reaches a result identical with that of the principal case; but the rule of this case, that the corporation is the real party, and for purposes of jurisdiction is a citizen of the state or country where created, seems more logical, and is not without the support of authority. Bank v. Devreau, 5 Cranch 62, 89 (semble); Louisville R. R. Co. v. Letson, 2 How. 497.

SCOPE OF THE REMEDY OF INTER PLEADER. The equitable remedy by bill of interpleader seems always to have been regarded by the courts with peculiar jealousy and surrounded by unfortunate and unnecessary restrictions. This tendency is illustrated by a recent decision under a statute allowing interpleader by motion, the statute being, as is usual in such cases, construed as not extending the scope of the equitable remedy, but only introducing it under different procedure into courts of law. A purchaser, who was sued for the contract price of chattels sold and delivered to him, was denied the right to interplead his vendor and one Coleman, who claimed to be the owner of the chattels, which he alleged had been converted by the vendor. Coleman v. Chambers, 29 So. Rep. 58 (Ala.). One ground of the decision was that the adverse claims were not for the

same thing, that of the vendor being for the contract price, and that of Coleman for damages for conversion by the vendee. This objection would of course be final if the facts supported it. But it distinctly appears that Coleman claimed the contract price, and the inquiry should have been whether he showed any basis for such a claim. It would seem that one whose goods have been converted and sold in exchange for a contract obligation on the part of the vendee might by bill in equity enforce a constructive trust of that obligation, and thus claim the price from the vendee, if for any reason the legal remedy was inadequate. There are a few decisions involving the same principle in which the equitable remedy was allowed. American Sugar, etc., Co. v. Faucher, 145 N. Y. 552. Cf. Kaufman v. Wiene, 169 Ill. 596. Judging from the language of previous Alabama cases, and the nature of modern practice, the fact that the claim was equitable would be no objection to its introduction under the statutory inte pleader, though there seems to be no conclusive authority on the question.

In this view of the case another question might arise. It has been repeatedly laid down as law in cases and text-books that a bailee, agent, tenant, or vendee cannot maintain a bill of interpleader against his bailor, principal, landlord, or vendor, and a third person claiming by independent or paramount title. Just what is meant by independent title is not entirely clear. As the rule is sometimes stated it seems to be based on the notion of a confidential or personal relation between the stakeholder and one claimant, which forbids the stakeholder to question the original right of that claimant, although it allows him to interplead the latter and a third person who claims to have acquired such original right by assignment, attachment, or other method, since its origin. 3 Pomeroy, Eq. Jurisp., 2d ed., § 1327. The language of the courts which adopt this view, however, is broader than most of the decisions require, and other cases apparently rest the rule on a less artificial foundation, namely, the requirement that both claimants shall demand not only the same thing, but by virtue of the same debt or duty. It is said, for example, that a bailee's duty to his bailor and to a third person who claims the chattel merely as owner, are essentially different obligations. Crawshay v. Thornton, 2 Myl. & Cr. 1. This gives the rule a logical basis, and explains most of the decisions; but even in this form the rule introduces a needless restriction, which the framers of the English Common Law Procedure Act took pains to eliminate from the statutory interpleader, and apart from statute the soundness of the decision in Crawshay v. Thornton has been doubted both in England and in this country. Attenborough v. London, etc.. Co., L. R. 3 C. P. D. 450. 456, 458; Crane v. McDonald, 118 N. Y. 648, 656. The case has been generally followed, but often with reluctance, and a few decisions apparently reject its principle altogether. First Nat. Bank, etc., v. Bininger, 26 N. J. Eq. 345; Child v. Mann, L. R. 3 Fq. 806. But accepting the principle of Crawshay v. Thornton as law, it would nevertheless follow that one who does not deny the validity of the obligation between the stakeholder and his principal or vendor, but attempts to secure to himself the benefit of that obligation on the theory of a constructive trust, claims, as against the stakeholder, by virtue of the same debt or duty, and not by independent title. A bill of interpleader has been allowed in such a case. Goddard v. Leech, Wright (Ohio) 476. In another case of the same sort the rule as to paramount title seems to have been rested on the less satisfactory ground

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of the obligations imposed by a confidential relation, and the bill was dismissed. Marvin v. Elwood, 11 Paige 365. The opposite result was reached in the same state in a similar case where the trust was not constructive but express. Richards v. Salter, 6 Johns. Ch. 445. If the rule in question rests on identity of obligation it would not exclude an interpleader in the principal case. If it rests on anything else it is artificial, contradicted by a number of cases, and not likely to be generally followed.

The most troublesome objection to an interpleader in the principal. case remains to be considered: the objection that if Coleman's claim was correct the vendee was a tort-feasor. It has been held in several cases that where one of the adverse claims is based on the commission of a tort by the stakeholder, the interpleader cannot be allowed. Shaw v. Coster, 8 Paige 339; Hatfield v. McWhorter, 40 Ga. 269. The refusal to deliver a chattel to either of two claimants, simply on the ground of the conflicting claims, followed at once by proceedings to make the claimants interplead, though involving a technical conversion, is not of course within the rule. But beyond that no distinction is made between intentional and unintentional torts. It is obviously just to refuse to a wilful wrongdoer the protection of a bill of interpleader, but where the stakeholder has acted conscientiously throughout and in perfect good faith, and now asks only to be allowed to determine in the surest manner which claimant is entitled, the rule which denies him such relief on the ground of a technical tort seems altogether inequitable. Unfortunately, however, there seems to be no authority on the other side, and the Alabama court was amply justified in following the established rule.

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IMPOSSIBILITY OF PERFORMING CONTRACTS AS A Defence. bility was originally regarded as in no case an excuse for the non-performance of a contract. To this general rule three well-recognized exceptions have arisen. A defence is admitted where, without fault of either of the contracting parties, performance has been prevented by the destruction of the subject-matter of the contract, by a new law forbidding the act promised, or by the sickness or death of one of the parties to a contract for personal services. Further exceptions the English and most of the American courts have not allowed. Ashmore v. Cox, [1899] 1 Q. B. 436. The New York court, however, has of late been more liberal, and in a somewhat indefinite way has laid down the doctrine that impossibility is an excuse when caused by the non-continuance either of the subject matter of the contract or of the conditions essential to its performance. Stewart v. Stone, 127 N. Y. 500; Dolan v. Rodgers, 149 N. Y. 489 ; Herter v. Mullen, 159 N. Y. 28. In line with this rule is a recent decision of the same court. Buffalo, etc., Land Co. v. Bellevue Land, etc., Co., 165 N. Y. 247; 59 N. E. Rep. 5. On selling certain land to the plainiffs, the defendants contracted to build an electric railroad near by, on which they would run cars as often as every half hour, and they further agreed that in case this promise were broken. they would buy back the land. The plaintiffs requested that the defendants be compelled to fulfill this last promise, they not having run cars according to agreement. The court held the defendants' plea, that extraordinary snowstorms had compelled them to suspend operations for a time, was a good defence, on

the ground that even if the contract was absolute in form, yet it contained an implied condition that, if performance were rendered impossible without the defendants' fault, they should be relieved of liability.

The exceptions to the general rule that impossibility of performance is not a defence have crept into the law, not as excuses, but under the cover of implied conditions. In other words, the courts have held that the parties impliedly agreed there should be no performance if such contingencies arose, and so, in truth, no breach of contract resulted. This cannot be regarded otherwise than as pure fiction. As a matter of fact all thought of impossibility of performance is usually absent from the minds of the contracting parties. The defence is an equitable one, and therefore, provided beneficial results follow, the courts would be justified in holding that the implied condition relieves liability, not only where the subject-matter of the contract has been destroyed, but also where the means of performance have ceased to exist; that is, in general terms, wherever performance is rendered impossible without fault of the promisor. Indeed, even if it is insisted that the condition must be one actually intended, it seems more likely that the broader condition would be in the parties' minds than the narrower one, limited to definite objects.

It is usually to the interest of both parties that a contract be carried out. Where performance is prevented by an event, against the occurrence of which neither can reasonably be held to have warranted, both suffer a loss for which neither is responsible. In such circumstances it seems highly unjust to throw all the loss on the one whose performance may happen to have been interfered with. Much wiser would it be to excuse the breach of the express contract, and allow a recovery for benefits actually rendered in a quasi-contractual action. Had this latter remedy been earlier recognized, it is not improbable that the courts would, before this, have admitted impossibility generally as a defence. This result may now be reached, however, by the adoption of the rule suggested by the New York court, which seems not only a natural successor of the previously recognized exceptions, but likewise eminently just.

THE RIGHT TO DISPOSE OF THE BODY BY WILL. An interesting question of first impression arises in a recent California case as to whether or not one can make a valid testamentary disposition of his body. A testator living with the defendant at the time of his death left a will urging that the manner, time, and place of his burial should be according to the defendant's wishes and directions. Under this clause the defendant claimed the right of burial, and the widow and daughter of the deceased brought suit to obtain possession of the body. In allowing a recovery the court decides that a corpse is in no sense property, that therefore it cannot be disposed of by will, and that the right of burial belongs, in the absence of statutory provision, to the next of kin. Enos v. Snyder, 63 Pac. Rep. 170 (Cal.). Though it has been held that a corpse is a species of property, Bogert v. Indianapolis, 13 Ind. 138, such a view, it would seem, is erroneous, and not in accordance with the great weight of authority. Fox v. Gordon, 16 Phila. Rep. 185. One cannot be indicted for the larceny of a corpse, Rex v. Haynes, 2 East P. C. 652; nor can the body, as in olden days, be detained for the payment of debts. Reg. v. Fox, L. Ŕ. 2 Q. B. 246. But it is to be noted, though curiously enough it is not

even suggested in the principal case, that whether a corpse be regarded as property or not is immaterial to the point at issue. For when we consider that property in a body can only begin when the living becomes inanimate, it necessarily follows that property in one's own body can never arise. It must be conceded, however, that a dead body is something of which we can predicate a right of possession for the purposes of burial. Whether we call that right a quasi property right or not is a matter of terminology which does not concern us. The vital question remains, Can a testator by any possible testamentary act govern the vesting of that right?

Even in the absence of testamentary disposition there is some confusion in the law as to who has the right of burial. The principal case is perhaps in accordance with the general rule in this country, that it belongs to the next of kin. Wynkoop v. Wynkoop, 82 Am. Dec. 506 (Pa.). It is held in some jurisdictions, however, that the surviving widow or widower has the right. Hackett v. Hackett, 18 R. I. 155.

Equity has also interfered in determining the right as between the widow and the next of kin. Snyder v. Snyder, 60 How. Pr. 368. The courts limit their decisions in regard to the right of burial, however, expressly to those cases where there is no testamentary provision, and the inference is that a testator may, if he sees fit, govern the vesting of this right. There are dicta, also, which seem to recognize such a power. O'Donnell v. Slade, 123 Cal. 585; Pierce v. Swan Pt. Cemetery, 18 R. I. 227. In the former case it is distinctly stated that an individual has a sufficient proprietary interest in his own body after death to make a valid and binding testamentary disposition of it, and in the latter it is said that such a doctrine has been recognized. In neither case, however, is the point involved. On the other hand, in England, such a doctrine has been denied, where the court rested a decision on the ground that it was impossible by will or any other instrument to dispose of one's body. Williams v. Williams, 20 Ch. D. 659. It would seem, then, though there are dicta to the contrary, that courts have never recognized nor given effect to such a testamentary disposition, and though perhaps it may appear that under some circumstances effect should be given to the wishes of the deceased, it is difficult to suggest on what principle this can be done.

THE NECESSITY OF NOTICE TO A GUARANTOR. A recent Massachusetts decision presents an interesting and able discussion of the effect on a guarantor's liability of a failure by the guarantee to give notice of the default of his principal. The guaranty in this case was of the payment of rent by a lessee of the plaintiff. The guarantor received no notice of the lessee's failure to pay till fourteen months after the default occurred, and in consequence of the delay was in a worse position. Nevertheless he was held on his guaranty. Welch v. Walsh, 59 N. E. Rep. 440 (Mass). The decision goes on the ground that the guarantor, having undertaken to have a certain thing done at a certain time, is bound to see it done, and the lessor is under no duty to notify him of default. This reasoning seems sound. Rogers v. Burr, 97 Ga. 10. It is commonly held that notice is not necessary to charge a guarantor if he has suffered no detriment. Reynolds v. Douglas, 12 Pet. 497. But it is often said that the guarantor would be discharged to the extent of any loss which he