So6 HARVARD LAW REVIEW. the corporation's debts are paid; if the corporation be insolvent when the loss occurs, he loses nothing, since his interest is of no value, while an owner loses the value of his property whether he is insolvent or not. Syndicate Ins. Co. v. Bohii, 65 Fed. Rep. 165. Corporations — Ultra Vires Contract — Restitution. — The C. Co. leased its property to the P. Co., including cars, patent rights, and contracts with railroad companies. The lease was executed under an Act which was secured from the legisla- ture of Pennsylvania, and which was supposed by all parties to authorize the action. The P. Co. took possession and carried on the business for fifteen years, when they repudiated the lease, and resisted the payment of rent on the ground that the lease was in excess of the lessor's authority. This contention was finally sustained by the courts. The C. Co. now seeks in equity to obtain restoration of or compensation for the property transferred under the lease, which the P. Co. refuses upon the ground that it was not responsible for the property, because transferred under an unlawful contract. Held, the lease was made under a statute, which in the opinion of the parties authorized them to make it. All that can justly be said is that, in view of the decision of the court, the parties misconstrued their authority, and that the lease is consequently ultra vires. That the execution of this contract does not involve moral turptitude seems clear, and the P. Co., which had received the property of the C. Co. without right and has repu- diated the contract, must account for this property to the C. Co. Pullman Palace Car Co. V. Central Transp. Co., 65 Fed. Rep. 158. That the ultimate result of this case is sound seems clear. There are one or two points, however, which may be noted. The court decide the case by the application of the rules governing unlawful contracts in general. The denial rests on the fact that the property was transferred under an unlawful contract. " The following propositions respecting such contracts may be affirmed with confidence . . . third, that the courts will interfere to compel restitution of property received under such contract by one who repudiates, except when the contract involves moral turpitude" (p. 161). Now, it is submitted that with regard to illegal contracts in general, there is much conflict of authority on this point. Keener on Quasi Contracts, p. 267, et seq. Another proposi- tion which the court lays down in regard to unlawful contracts is, that the courts will not interfere for the relief of either party when they have been executed, and the con- tract in the princii:)al case is treated 'generally as executory. IJearing in mind that this was a lease for ninety-nine years, of which fifteen had expired, and also that plaintiff had transferred all its properly to the defendant, it would seem that to consider this as an executory contract does m t accord very well with the lai guage used in St. Louis, &=€. R. R. Co. V. Ter7e Haute, &^c. R. R., 145 U. S. 393, which was a ISill in Equity filed by lessor corporation against the lessee to set aside an ultravires lease for nine hundred and ninety-nine years, of which seventeen had elapsed, during which the defendant had operated the road. Mr. Justice Gray in dismissing the bill says, "When the parties are in pari delicto and the contract has been fully executed on part of the plaintiff by the conveyance of property, neither a Court of Law nor a Court of Equity will assist the plaintiff to recover back the pro]ierty conveyed. . . . The contract has been fully ex- ecuted on the part of plaintiff by the actual transfer of its railroad and franchise to the defendant, and the defendant has held the property and paid the stipulated considera- tion from time to time for seventeen years. . . ." The court in the principal case dis- pose of the case just cited by saying that it decides that the court will not set aside an unlawful contract which has been so far executed as to make this inequitable. It is submitted that the case is decided on too broad grounds ; that it would have been better to base the decision on the jjeculiar nature of corporations rather than on the grounds which have been consideied, as to the soundness of the decision in its result. See Morawetz on Corporations, § 721 ; Taylor on Private Corporations, § 314 ; Spelling on Private Corporations, § 167 ; Waterman on Corporations, § i6i. Damages — Libel — Retraction. — Held, in an action for libel that an offer to plaintiff's attorney to publish any retraction that he might write, made after the com- mencement of the suit, could not be shown in mitigation of damages. Turton v. New York Recorder Co., 38 Fed. Rep. 1009 (N. Y.). Such an offer made directly to plaintiff could only show absence of malice, and would be admissible only when the action was for exemplary damages. But as this action was against the proprietor of the newspaper, and not against the writer of the article, it was not for exemplary damages. Haines v. Schultz, 50 N. J. Law, 481. 1 he refusal to write such a retraction on the jiart of plaintiff's attorney did not jirevent de- fendant from publishing a retraction, and would not be an excuse for not doing so. A retraction is not an act in which both parties must join. The court says that evidence of a retraction, published soon after the institution of the suit when the suit was begun without previous notice to the defendant, would be admissible. This is a ]Doint on which there is surprisingly little authority, but this is not inconsistent with the New
