6o HARVARD LAW REVIEW. Constitutional Law — Collateral Attack — De Facto Officers. — To an indictment for ofternig a bribe to a city commissioner the defendant demurred, on the ground that the act under which the officer was performing his duties was unconstitu- tional and void. Held, that the constitutionality of the act could not be attacked col- laterally before its validity had been decided by an authoritative decision in the courts of the State. Shanck, J., dissenting. State v. Gardner, 42 N. E. Rep. 999 (Ohio). This is interesting as a case of first impression in the State on a doubtful point of law. The maxim that there can be no de facto ofiictx unless there is a rtV /«r^ office, which is illustrated by the leadmg case of Norton v. Shelby County^ 118 U. S. 425, is repudiated, and that case is distinguished. The decision is in accoid with Slate v. Carroll, 38 Conn. 449, and shows the probable tendency of the courts in this direction. The case is valuable for the closely reasoned opinion of Spear, J. Constitutional Law — Indemnity from Taxation. — A charter granted in 1856 exempted a bank from taxation. In 1870 a constitutional provision was adopted which prohibited such exemption. The bank failed in 1869, and in 1880 by order of court the receiver sold the charter at auction, T. being purchaser. But the shares of stock were not transferred to T. by the owners. T. and others organized and carried on business, claiming to act under the charter, and were recognized as a corporation in 188 1 by the passage of a legislative act changing the corporate name. Suit by the State for the collection of taxes. Held, that the exemption was a personal privilege in favor of the corporation specifically mentioned, which did not pass with the sale of its charter. Bank v. Tennessee, 16 Sup. Ct. Rep. 461. The court doubts the validity of the sale of the charter, and the effect of the subse- quent reorganization, but bases its opinion upon the ground that the present organiza- tion is not in fact or in law the body originally incorporated. The decision accords with the established rule of the Supreme Court. See especially Memphis County Commissioners, 112 U. S. 609, at 619, 623, and cases cited. It is interesting to think how the court which decided New Jersey v. Wilson^ 7 Cranch, 164, might have dealt with such a question. Contracts— Divisibility — Acceptance of Part Performance. — Under a contract to deliver several lots of cloth at different dates, the vendor delivered only the first lot ; which the vendee accepted, though previously informed that the remain- ing lots could not be delivered according to the contract. Held, that the contract, though originally entire, had been so divided by the acts of the parties, that the vendee was liable on the contract for the lot he had accepted. Silbervian v. Fretz^ 14 New York Law Journal, 1697. See Notes. CoNTRAcrs — Marriage a Valuable Consideration. — The defendant, before his marriage and in consideration thereof, in pursuance of an oral agreement, con- veyed his real estate to a third party, in trust to reconvey it to himself and his wife after marriage, this being done by him to defraud his creditors, but the wife being in- nocent. This action is brought by a creditor to have the conveyance set aside. Held^ that marriage was sufficient consideration to support the grant. State ex rel. Harrison V. Osborne, 42 N. E. Rep. 921 (Ind). However undesirable it may seem, it is undoubtedly law that marriage is a valuable consideration, and will support an ante-nuptial grant to the woman, even if made to defraud creditors, i Bishop's Law of Married Women, §§ 780-782, and cases cited. This view seems irreconcilable in principle with another doctrine equally well settled in the United States, viz. that a p>ost-nuptial grant made in consideration of marriage and in fulfilment of an oral ante-nuptial agreement is void as against creditors. Man- ning V. Riley, 52 N. J. Eq. 39; Browne on the Statute of Frauds, § 223, and cases cited. The cases of the latter class might well be assimilated to those of the former, as the grant is in them no more voluntary than when made before marriage in pursuance of a non-enforceable agreement, i Bishop's Law of Married Women, §§ 810, 811; Hussey v. Castle, 41 Cal. 239; Ames's Cases on Trusts (2d ed.), § 7, note i, p. 181. Contracts — Statute of Frauds — Part Performance. — Defendant made an oral ante-nuptial agreement with his intended wife that, in consideration of their marriage and of his having charge of her infant son, the plaintiff, during his minoiity, he would in his will devise to this son and any children of their marriage in equal shares. The marriage was consummated, and the husband took control of the boy. Three children were born of the marriage. The husband died, making no provision for the plaintiff, who thereupon brought this action for a specific enforcement of the contract. Held, that marriage was a sufficient part performance to render the contract enforceable in equity. Nomack v. Berber, 34 S. W. Rep. 489 (Mo.). The court might have found other grounds on which to rest their decision, but they base it squarely on the sufficiency of the marriage. This is contra to the entire weight
