A party cannot seek to enforce the procedure of a court beyond its jurisdiction. Such a situation is suggested by a recent Nebraska case where, in divorce proceedings, the court ordered a conveyance of land situated in another state. Fall v. Fall, 113 N. W. 175. The prospective grantee brought a bill in the court of the situs to quiet title. The bill, of course, failed, because no title, legal or equitable, could be created by the other court, and no other right in the land was alleged. Nor could the plaintiff have succeeded in any other way. The order was simply a part of the procedure of the court, just as it might award future alimony or security therefor. If it does not execute such orders, no right of action exists upon which to have execution in another state.9

2

THE POWER OF A TRUSTEE TO LEASE TRUST PROPERTY. Where a trustee has legal title to land and is charged with the active duty of raising an income therefrom, he is confronted with the problem as to whether or not he has power to lease, and if he has, to what extent. There can be no implied power to lease where the trust is a passive one,1 or where the trust instrument indicates a contrary intention. And where the instrument expressly grants power to lease for a specified term, no authority can be implied to grant a longer lease, or to deviate in any way from the limitations of the grant. Clearly, where the trust must terminate at a given time, the trustee cannot lease beyond that time, and no lease beyond his power will bind the remainderman. But where the trust deed is silent as to the right to lease and the trust is for an indefinite period, the trustee has an implied power to lease for the shortest period essential to the economical use of the land, provided that such lease is not likely to extend beyond the duration of the trust. The circumstances which determine whether or not the trustee's action has been reasonable are reviewed in a recent Iowa case. In re Hubbell Trust, 113 N. W. 512. The nature of the property to be leased is an important element. Thus, leases of agricultural land may often be advantageously made for short periods, while mining leases and leases of city lots, where the lessee must be allowed to build or make improvements in order that the land may be productive, may require comparatively long terms." The business usage of each community will affect the proper extent of the lease. The interests of the remainderman must also be considered by the trustee. When the remainderman is a descendant of the cestui que trust, and necessity requires it, the court might well approve a lease longer than the probable term of the trust. This, however, cannot be supported on the theory of implied power in the trustee, but only on the theory that equity, taking the place of the creator of the trust, will do what in all probability he would have done had he anticipated the emergency. Whether or not courts will adopt this cy pres doctrine, the trustee himself has no power to make such a lease.

9 Bullock v. Bullock, 52 N. J. Eq. 561.

1 Hefferman v. Taylor, 15 Ont. 670.

2 Evans v. Jackson, 6 L. J. Ch. 8.

8 Bowers v. East London, etc., Co., Jac. 324.

4 Fitzpatrick v. Waring, L. R. Ir. 11 Ch. D. 35.

5 Newcomb v. Kettellas, 19 Barb. (N. Y.) 608.

6 Marsh v. Reed, 184 Ill. 263.

7

Concerning the respective rights of the remainderman and the lessee when the trust terminates, the authorities are not in accord. Where the trustee leases for an unreasonable term, the excess only will be void in equity, according to the principle that where a lease under a power is executed for a longer term than is authorized by the power, it is void only for the excess. The excess will be void in equity, since the purchaser of a leasehold estate from a trustee is charged with constructive notice of the terms of the trust. But if the lease by a trustee is for a reasonable period, will the term drop if the trust comes to an end sooner than the term? The weight of authority seems to be that it will. Many such holdings are based on a statute whereby, when the trust ends, legal title passes forthwith from the trustee to the remainderman; for the courts argue that a trustee, like a tenant for life, cannot make a lease for years which will be valid after the termination of his estate. But whatever view be taken of a trustee's estate, whether the legal fee be determinable or absolute, there seems no reason to hold that, if he has an implied power to lease, the whole term is not valid. The validity should depend not on the extent of the trustee's legal estate, but on the extent of his power.io

8

The apparent con

WAIVER OF TRIAL BY JURY IN CRIMINAL CASES. fusion on the question whether the issue of fact raised by a plea of not guilty may, with the consent of the parties, be tried by the court without a jury, seems to have arisen from the dicta of judges, who have propounded a doctrine of waiver of constitutional rights instead of construing the enacted law. It is believed that almost all the holdings in point may be reconciled by a scrutiny in each case of the constitutional and statutory provisions, and the grade of the offense. Where a constitution provides that there shall be no conviction except by verdict of a jury, the court alone cannot have jurisdiction of the issue,1 and a statute permitting waiver of jury would seem invalid; 2 even minor offenses may have been within the intent of the enacting convention. But most of the state constitutions merely declare that the right of trial by jury shall remain inviolate, or that the accused shall enjoy the right to a trial by jury, and under such provisions the courts have almost universally upheld statutes permitting waiver, even in cases of felony. In the absence of such statutes, however, the law of criminal procedure must be derived from the common law, and since at common law trial by jury prevailed exclusively, trial by the court is unauthorized and invalid. A more common but much less sound explanation is that public policy, as dictated by the constitution, forbids waiver. Neither of the

7 Pawcy v. Bowen, I Ch. Cas. 23.

8 Gomez v. Gomez, 147 N. Y. 195; Hutcheson v. Hodnett, 115 Ga. 990.

9 N. Y. Laws, 1896, c. 547, § 89.

10 Cf. Sugden, Powers, 722.

260.

1 State v. Holt, 90 N. C. 749.

2 State v. Cottrill, 31 W. Va. 162. Contra, State v. Griggs, 34 W. Va. 78.

8 See State v. Stewart, 89 N. C. 563.

4 Edwards v. State, 45 N. J. L. 419. Contra, Brimingstool v. People, 1 Mich. N. P

Murphy v. State, 97 Ind. 579; State v. Worden, 46 Conn. 349.

6 See Harris v. People, 128 Ill. 585. Contra, Wren v. State, 70 Ala. I.

1 Cf. Cancemi v. People, 18 N. Y. 128.

8

arguments against waiver applies, however, to offenses of the sort which, at the time of the adoption of the constitution, were dealt with summarily by justices of the peace, or by courts of special sessions. For these minor offenses, not being formerly triable by a jury, are usually considered not to have been intended to be within the constitutional guaranty, and hence not to be within the scope of the alleged constitutional policy against waiver ; 10 and there is sufficient precedent to give a court authorization in such cases to be the sole tribunal.

Moreover, a statute which provides that issues of fact shall be tried by a jury is held, in a recent case in a jurisdiction where the provisions of the Constitution of the United States apply, to prohibit waiver of jury. In re McQuown, 91 Pac. 689 (Okl.). Where there is such a statute there can be no other tribunal even for minor offenses unless further provision is made.11 Without such statute the two sections of the Constitution involved,12 construed together, have the force, not of those state constitutions which prescribe the exclusive use of trial by jury, but of those which merely protect the right to such trial.18 Consequently a federal statute permitting waiver is constitutional; ; 18 and in a federal court, without such statute, a jury may be waived in the trial of a minor offence.10

14

The sole legal question, then, is always one of construction, not of policy. From the point of view of public policy, it may be said that waiver of jury trial conduces to efficient and expeditious criminal administration; but on the other hand, it endangers the existence of the jury system. A plea of guilty, not raising an issue to be tried, does not waive the right of trial by jury.1 Nor are the above considerations applicable to the question whether a defendant may elect to be tried by a jury consisting of other than twelve men; a statute permitting waiver of the whole jury does not permit waiver of one juror. 15

RECENT CASES.

BANKRUPTCY - EXEMPTIONS - CLAIM OF EXEMPTION OUT OF PROCEEDS OF SALE. A bankrupt absconded leaving no property except a quantity of liquor. His wife waived her right to claim $500 worth of the liquor as exempt, but claimed in lieu thereof $500 from the proceeds of its sale. Her reason was that if she sold the liquor she would have to pay a tax which would reduce the value of her exemption to less than $200. Held, that she has a right to claim $500 from the proceeds. In re Luby, 155 Fed. 659 (Dist. Ct., S. D. Ŏh., E. D.). By the great weight of authority statutes of exemption should be liberally construed. Y. C. N. Bank v. Carpenter, 119 N. Y. 550; In re McManus, 87 Cal. 292. Where a bankrupt makes an assignment for the benefit of creditors with a reservation of exemptions from the proceeds of the property assigned, the assignment is generally held not to be void as a fraud on the creditors. Banking Co. v. Whitaker, 110 N. C. 345; contra, King v. Ruble, 54 Ark. 418. Fur

281.

8 City of St. Charles v. Hackman, 133 Mo. 634. Contra, State v. Maine, 27 Conn.

9 Murphy v. People, 2 Cow. (N. Y.) 815.

10 Schick v. United States, 195 U. S. 65. But see dissenting opinion.

11 Bond v. State, 17 Ark. 290. But see People v. Smith, 9 Mich. 193.

12 Art. III, § 2; Amend. VI.

18 Belt v. United States, 4 D. C. App. Cas. 25.

14 West v. Gammon, 98 Fed. 426.

15 Brown v. State, 16 Ind. 496. Contra, State v. Wells, 69 Kan. 792. Cf. 9 HARV. L. REV. 353

ther, it has been held that where there is a lien on the debtor's property, the property may be sold and exemptions claimed from the proceeds after payment of the lien debt. Darby v. Rouse, 75 Md. 26. The former line of decisions shows that the courts are not averse to allowing a claim of exemptions out of proceeds. The reason for the decision in the latter line of cases is that unless the debtor can claim from the proceeds, his right to exemptions will be defeated. The court applied the same reasoning to the present case, and to keep the wife's exemptions from being substantially defeated, allowed her to claim from the proceeds. In view of the very liberal construction almost universally given to exemption statutes the result seems correct.

BANKRUPTCY-STATE INSOLVENCY LAWS - MERGER OF CLAIM IN SUBsequent JudGMENT. — The Massachusetts court, under statutory power, instituted receivership proceedings against the defendant corporation to close its affairs. Thereafter, in another court, the petitioners carried to judgment against the defendant a debt action commenced prior to the receivership. The petitioners then sought to enforce their claim in the receivership proceedings. Held, that the petitioners may prove their original claim only. Atty.-Gen. v. Supreme Council A. L. H., 81 N. E. 966 (Mass.).

În Massachusetts claims arising after the institution of insolvency proceedings are not provable against the insolvent's estate. MASS. REV. LAWS, c. 163, § 31. Under this heading courts in Massachusetts and Maine, in proceedings under their state insolvency laws, ordinarily include claims which, though valid when insolvency proceedings are commenced, are thereafter pursued to judgment. Sampson v. Clark, 2 Cush. (Mass.) 173; Emery, Appellant, 89 Me. 544. The courts reason that the original claim merges completely in the judg ment debt, and that the creditor elects this judgment right against his debtor's future assets in place of the former claim against the insolvent estate. The court excepts the present case from this doctrine because here, the debtor cor poration being dissolved, the creditor cannot be said to seek future assets. While the result reached is just, the court in considering the creditor's intent fails to dispose satisfactorily of the merger question, the opinion herein reflecting a recent tendency to curtail or ignore that technical theory. Murphy v. Manning, 134 Mass. 488. The merger doctrine is not applied in proceedings under the National Bankruptcy Act. Boynton v. Ball, 121 U. S. 457. The result is the application of different rules to state and federal insolvency proceedings in Maine and Massachusetts. This inconsistency is apparently confined to these two states. See In re Stansfield, 4 Sawy. (U. S.) 334; Imlay v. Carpentier, 14 Cal. 173.

BILLS AND NOTES - FICTITIOUS PAYEE - EFFECT OF DRAWER'S INTENTION. The plaintiff, on the fraudulent representation of A and to pay for shares of stock alleged to be for sale by B, drew a check payable to the order of B, who was ignorant of the transaction and had no such stock. A then indorsed the check, using the payee's name, to the defendant bank, a bona fide purchaser for value. The defendant collected the amount from the plaintiff's bank, which amount the plaintiff seeks to recover. Held, that the defendant is not entitled to the proceeds of the check. Macbeth v. North and South Wales Bank, 24 T. L. R. 5 (Eng., Ct. App., Oct. 16, 1907).

The Bills of Exchange Act, 1882, s. 7, subs. 3, provides that "where the payee is a fictitious or non-existing person, the bill may be treated as payable to bearer." In the United States the intention or knowledge of the drawer is decisive of the fictitiousness of a named payee, irrespective of the actual existence of a person of such name. Shipman v. State Bank, 126 N. Y. 318; Armstrong v. Pomeroy Nat'l Bank, 46 Oh. St. 512. The English courts, by a strict construction, consider the drawer's intention immaterial if the named payee is, in fact, non-existing. Clutton v. Attenborough, [1897] A. C. 90; see 10 HARV. L. REV. 449. If, however, the drawer intends payment to be made to an actual person, though unknown to the latter, as in the present case, the check is not payable to bearer and the drawer can recover for payment contrary to direction. Vinden v. Hughes, [1905] 1 K. B. 795. This is clearly correct.

A person actually existing and intended by the drawer to be the real payee can scarcely be considered fictitious. Therefore by no construction of the Act is the check payable to bearer. Since, then, a forged indorsement passes no title, the defendant, however innocent, is not entitled to the proceeds of the check. Robarts v. Tucker, 16 Q. B. 560; Citizen's, etc., Bank v. Importer's, etc., Bank, 119 N. Y. 195.

BILLS OF PEACE- BILL TO AVOID NUMEROUS ACTIONS OF EJECTMENT. The plaintiff alleged that the eighty-four defendants, squatters on his land, were preparing to defend ejectment suits brought by him, all claiming to hold under M and to tack their adverse possession to his, in order to make it extend for the statutory period of limitation. The plaintiff further alleged that M had not been in adverse possession, that he had won an ejectment suit against one making a similar claim, and prayed that he be decreed entitled to immediate possession, and that the defendants account for rents and damages. The defendants demurred. Held, that the demurrer be sustained. Two judges dissented. Illinois Steel Co. v. Schroeder, 113 N. W. 51 (Wis.). See NOTES, p. 208.

CONFLICT OF LAWS REMEDIES REDRESS IN ONE JURISDICTION FOR TORT COMMITTED IN ANOTHER. - A Nevada statute gives a right of action for personal injuries caused by negligence or wrongful act, but provides that such liability shall exist only in so far as it shall be ascertained by a state or federal court in Nevada. The plaintiff sued in a federal court in Utah for an injury received in Nevada. Held, that redress can be given only by a court in Nevada. Coyne v. Southern Pacific Co., 155 Fed. 683 (Circ. Ct., Dist. Utah). See NOTES, p. 207.

CONSTITUTIONAL LAW IMPAIRMENT OF OBLIGATION OF CONTRACTS CONTRACT ARISING FROM DEALINGS BETWEEN STATE AND Foreign CorPORATIONS. By various enactments Alabama induced foreign railroad corporations, including the complainant, to acquire in the state franchises and other large property interests. Later a statute made recourse by foreign corporations to the federal courts ipso facto a forfeiture of their right to do business in the state. Held, that the defendants are enjoined from interfering with the prosecution of intra-state business by the complainant. Seaboard Air Line Ry. Co. v. Railroad Commission of Alabama, 155 Fed. 792 (Circ. Ct., M. D. Ala.).

Except under special circumstances, a state may compel a foreign corporation not to resort to the federal courts or else to leave the state. Security Mutual Life Ins. Co. v. Prewitt, 202 U. S. 246. There seems to be no reason, however, why the state may not bargain this right away, since it cannot strictly be called an exercise of the police power. A binding contract may arise between a state and a foreign corporation, based on their dealings, although no particular document embodies that contract. Stearns v. Minnesota, 179 U. S. 223. In the case under discussion the facts are strongly in favor of such a construction-that the dealings between the parties have "ripened into a legislative contract." In every case the question is one of fact. See 20 HARV. L. REV. 405. CONSTITUTIONAL LAW SEPARATION OF POWERS DELEGATION OF LEGISLATIVE Power to COMMISSIONS. A statute provided that the state railroad commission should have power in its discretion to permit increase in the capital stock of railroad corporations, and to prescribe the terms upon which such increase should be made. Held, that the statute delegates legislative power and therefore is void. State v. Great Northern Ry. Co., 100 Minn. 445. See NOTES, p. 205.

CONSTITUTIONAL LAW SEPARATION OF POWERS DELEGATION OF LEGISLATIVE POWER TO COMMITTEE OF POLITICAL PARTY. - A statute gave county central committees of the various political parties power to establish districts for the choice of delegates. Held, that the statute is unconstitutional. Rouse v. Thompson, 81 N. E. 1109 (III.).

It is assumed by the court and supported by authority that such a function