doctrine of res judicata to questions of law, for had the court adopted such a rule, it would have been forced to apply one construction of the law to the parties before it, while it applied a different construction in all suits between other persons.

RECENT CASES.

ADVERSE POSSESSION - WHO MAY GAIN TITLE BY ADVERSE POSSESSION RIGHTS OF ONE INTENDING TO ACQUIRE A HOMESTEAD. - The defendant entered the plaintiff's land, thinking that it belonged to the United States, with the intention of acquiring a homestead. He remained in possession until the statute of limitations had run, when the plaintiff attempted to eject him. Held, that the plaintiff is barred. Maas v. Burdetzke, 101 N. W. Rep. 182 (Minn.). See NOTES, p. 380.

ALIENS EXCLUSION OF ALIENS AS A JUDICIAL QUESTION. The Chinese Exclusion Act of 1894 provided that the decision of the appropriate immigration or customs officers excluding an alien should be final unless reversed on appeal to the Secretary of the Treasury. The Secretary of Commerce and Labor, to whom the enforcement of the law was subsequently delegated, refused admission to the adopted children of a Chinese merchant domiciled in this country and, as such, possessed of rights under a treaty with China. Held, that the decision is reviewable by the federal courts. In the Matter of Fong Yim, 32 N. Y. L. J. 1349 (U. S. Dist. Ct., S. D., N. Y., 1905).

The precise question seems never to have been adjudicated, but the result is hard to reconcile with certain decisions of the Supreme Court. See Lem Moon Sing v. United States, 158 U. S. 538. For some consideration of the principles involved, see 17 HARV. L. REV. 488.

BANKRUPTCY-INVOLUNTARY PROCEEDINGS PETITIONER ESTOPPED BY PARTICIPATION IN APPOINTMENT OF RECEIVER. - After a receiver had been appointed for the defendan. corporation, two of the present petitioners requested the court to appoint a co-receiver, and several months later used these receivership proceedings as a basis for petitioning the defendant into bankruptcy. Held, that the petitioners are estopped from instituting such proceedings. Lowenstein v. Henry McShane Mfg. Co., 12 Am. B. Rep. 601 (U. S. Dist. Ct., Dist. of Md.).

As there is no precedent exactly in point, the court reasons from the rather doubtful analogy that one who assents to an assignment for the benefit of creditors is estopped from later setting it up as an act of bankruptcy. In re Romanow, 92 Fed. Rep. 510; Simonson v. Sinscheimer, 95 Fed. Rep. 948. The reasoning of these cases proceeds upon the ground that the creditor, having already agreed to one method of distribution of his debtor's property, cannot afterwards file a petition which would be virtually repudiating his former position. But the duty of a receiver is not necessarily like that of an assignee, to wind up and distribute the debtor's estate; it is primarily to preserve the property, and to carry on the business under the direction of the court. Since the receiver may not conduct the enterprise as satisfactorily as anticipated, it necessarily follows that a concurrence in his appointment is perfectly consistent with a later desire to have bankruptcy proceedings instituted. It would seem, therefore, that the petitioner could hardly be disqualified by such concurrence.

BANKRUPTCY PRIORITY OF CLAIMS RIGHT OF PARTNERSHIP Creditors TO SHARE IN INDIVIDUAL ESTATE. — A partnership of which a bankrupt had been a member was insolvent and had no solvent members surviving. Held, that creditors of the partnership may not participate in the bankrupt's estate until the bankrupt's personal creditors have been satisfied. In re Corcoran, 14 Oh. Fed. D. 294. See 17 HARV. L. REV. 132.

BILLS AND Notes - Checks - Effect of DEATH OF DRAWER. - The deceased on his death-bed drew a check in favor of the defendant and delivered it to him. The check was not presented to the bank until after the death of the drawer. The state claimed the funds by escheat. Held, that the defendant is entitled to them. Phinney v. State ex rel. Stratton, 78 Pac. Rep. 927 (Wash.).

For a discussion of the principles involved, see 17 HARV. L. REV. 104.

See Boyd v. Alabama, 94 U. S. 645; Bernard v. Hoboken, 27 N. J. Law 412.

CARRIERS-CONNECTING LINES- PRESUMPTION AS TO LOST GOODs. In an action for lost goods against the latter of two connecting carriers, the plaintiff proved delivery of the goods to the first carrier and non-delivery by the second, but gave no proof of delivery by the first to the second. Held, that a presumption arises that the latter carrier received the goods. St. Louis, etc., Ry. Co. v. Birdwell, 82 S. W. Rep. 835 (Ark.).

In the absence of special agreement, England, Canada, and some of the United States hold the first carrier for loss occurring anywhere before final delivery. Muschamp v. Lancaster, etc., Ry. Co., 8 M. & W. 421; Grand, etc., Ry. Co. v. McMillan, 16 Can. Supreme Ct. 543. These jurisdictions allow no recovery from the subsequent carriers, on the theory that they are agents of the initial carrier, with which alone the shipper contracts. Most American courts, however, declare that recovery may be had directly from the carrier which loses or damages the goods; and when the last carrier is sued, raise a presumption that the default occurred on its line. Smith v. New York, etc., R. R. Co., 43 Barb. (N. Y.) 225; Laughlin v. Chicago, etc., Ry. Co., 28 Wis. 204. If the American rule is to be held at all, some such presumption is necessary for the protection of the public. It is no hardship on the carriers, for, if they deem it expedient, they can exact from one another receipts fixing the responsibility where it be longs. But though necessary under the American rule, the presumption seems illogical, has no basis in fact, and apparently arises as well against the first or intermediate carrier as the last. Brintnall v. Saratoga, etc., R. R. Co., 32 Vt. 665.

CARRIERS WHO ARE PASSENGERS RES IPSA LOQUITUR. The plaintiff, employed as an express messenger by a company which had contracted with the defendant railway company for the carriage of express matter and the free transportation of its employees, while in the course of his employment was injured by a derailment of the defendant's train. In the absence of any explanation of the accident, the court refused to instruct that the fact of derailment was no evidence of the defendant's negligence. Held, that the instruction should have been given, since the express messenger is in the position of an employee of the defendant, and the doctrine of res ipsa loquitur is not applicable to injuries of servants. Chicago, etc., Ry. Co. v. O'Brien, 132 Fed. Rep. 593 (C. C. A., Eighth Circ.).

Most authorities reject the first premise of this case, and regard an express messenger as enjoying a position not less favorable than that of a passenger. Yeomans v. Contra Costa, etc., Co., 44 Cal. 71; Fordyce v. Jackson, 56 Ark. 594. Nor does it necessarily follow from the contrary cases that an expressman is protected less than a passenger, except that he may contract to assume the risk of the railway's negligence. Cf. Baltimore, etc., Ry. Co. v. Voigt, 176 U. S. 498. The second premise has also been somewhat criticised. McCray v. Galveston, etc., Ry. Co., 89 Tex. 168. But such formal argument seems unfortunate. The doctrine of res ipsa loquitur rests upon common sense, and the propriety of presuming the defendant's negligence should depend on the facts of the particular case. Whether its basis be mere expediency, probability, or the defendant's peculiar knowledge of the facts, the present case seems to warrant its application. The rule has apparently made headway against the presumption favoring employers, except where the servant is concerned in the control of the appliances from which accident results. Cf. Houston v. Brush, 66 Vt. 331, 342. As an express messenger is not within that exception, the decision would appear to be unhappy both upon its reasoning and in its conclusion.

CHATTEL MORTGAGES - NOTICE UNDER THE RECORDING ACTS.—A commission merchant sold mortgaged cattle and remitted the proceeds of the sale to the consignor, without actual knowledge of the existence of the mortgage, which was recorded. The mortgagee sought to recover the amount of the net proceeds from the commission merchant in an action for money had and received. Held, that the action does not lie. Greer v. Newland, 78 Pac. Rep. 835 (Kan.).

This reverses, on rehearing, the former decision by the same court, which was adversely criticised in 18 HARV. L. REV. 54.

CONSTITUTIONAL LAW - DUE PROCESS of Law RIGHTS AGAINST ACTION BY INDIVIDUALS. - The defendants took a prisoner from the custody of state officers and lynched him. They were indicted under a federal statute providing for the punishment of persons who should conspire to prevent or hinder the free exercise or enjoyment by any citizen of any right or privilege secured to him by the Constitution or laws of the United States. Held, that the defendants may be convicted of a conspiracy to deprive the prisoner of his right under the Fourteenth Amendment to have the state afford him due process of law. Ex parte Riggins, Circuit Court of the United States, N. D., Ala. Ñ. D.

The Fourteenth Amendment operates as a guaranty only that the state shall not deprive any citizen of the United States of due process of law; and in the absence of state action, or such inaction as to amount to deprivation, it is difficult to see how any right of the citizen under the amendment can be infringed. The reasoning of the court, though ingenious, leads in effect to the conclusion that the amendment safeguards the citizen against the acts of individuals, a theory which has been expressly repudiated. Civil Rights Cases, 109 U. S. 3. If the decision be sound, persons conspiring to prevent a negro from voting at state elections could be punished for a conspiracy to deprive him of the right not to have state officials discriminate against him in excluding him from voting. It has been held, however, that the Fifteenth Amendment gives no authority to punish such persons. Karem v. United States, 121 Fed. Rep. 250. The leading case upon which the court relies rests only upon the power of Congress to regulate federal elections. Ex parte Yarborough, 110 U. S. 651; cf. Lackey v. United States, 107 Fed. Rep. 114. If the decision be upheld, the generally accepted view that the constitutional amendments leave exclusively to the states the final protection of their citizens must be substantially modified; and the limits of federal power of interference will be difficult to define. See United States v. Harris, 106 U. S. 629.

CONSTITUTIONAL LAW PRIVILEGES AND IMMUNITIES - LIMITATION OF HOURS OF LABOR. A city ordinance provided that eight hours should constitute a day's work on any work done for the city, and that any contractor who violated this provision should be guilty of a misdemeanor. Held, that the ordinance is constitutional. Broad v. Woydt, 78 Pac. Rep. 1004 (Wash.).

For a discussion of the question, see 17 HARV. L. REV. 50, 419.

CONTEMPT-ACTS AND CONDUCT CONSTITUTING CONTEMPT-LIBEL OF A JUDGE AFTER SATISFACTION Of Judgment. — Held, that a libelous article concerning a judge, published by a litigant after judgment in his cause has been rendered and satisfied, is contempt of court. Burdett v. Commonwealth, 48 S. E. Rep. 878 (Va.).

Of "constructive" contempts by publication, committed outside the presence of the court, the principal classes are those which obstruct pending proceedings, and those which discredit the court. Although, in cases of the first group, the courts obiter vigorously maintain their right to deal with the latter sort of offenses, it is believed that this is the first American decision to support the position squarely; and English cases are rare. See Regina v. Gray, [1900] 2 Q. B. 36; cf. Dandridge's Case, 2 Va. Cas. 408. Unquestionably, the common law, to preserve the independence and authority of the higher courts, invests them with an absolute power summarily to punish contempt. But how far shall that power limit the popular right to free speech? Even in England committals for scandalizing the court were recently said to be obsolete. See McLeod v. St. Aubyn, [1899] App. Cas. 549, 561. The better American decisions, recognizing our constitutional guaranties, limit constructive contempts to such publications as interfere with the progress of litigation already pending. State ex rel. The Attorney-General v. Circuit Court for Eau Claire County, 97 Wis. 1; Neel v. State, 9 Ark. 259. practically all adjudged cases of constructive contempt, other than those by officers of the court, fall within this class, such a distinction would seem to be safe.

As

CONTRACTS DEFENSES-IMPOSSIBILITY BY OPERATION OF LAW. During the war between China and Japan the defendant carrier contracted to transport copper from New York to Yokohama. After an ineffectual attempt to withdraw from the contract on the ground that the goods at Tacoma were contraband, the carrier undertook the transportation. The government official, however, refused to clear the vessel carrying the copper on the ground that as contraband it could not legally be exported to Japan. The vessel consequently sailed without it. The following day it appeared that there was no legal objection to the exportation of the copper. Held, that the mistake of the official is no defense under the circumstances. Northern Pacific Railway Co. v. American Trading Co., 25 Sup. Ct. Rep. 84. See NoTes, p. 384.

CONTRACTS-DEFENSES-IMPOSSIBILITY CAUSED BY VOLUNTARY DISSOLUTION OF PARTNERSHIP. - The defendants, who carried on business in partnership, agreed to become buying agents for the plaintiffs for a term of five years and to pay for a minimum quantity of the plaintiffs' products each year. The expressed intention was that a certain district should be represented by the defendants for that period. During the term the defendants dissolved partnership and the plaintiffs sued for breaches of the agreement committed after the dissolution. Held, that there was no implied term in the contract that the defendants would not disable themselves from carrying out the agreement by dissolving partnership, and therefore they are not liable. Bovine (Limited) v. Dent and Wilkinson, 21 T. L. R. 82 (Eng., K. B. D.).

In both England and the United States a corporation that voluntarily winds up business is liable on its contracts. In re English Joint Stock Bank, L. R. 4 Eq. 350; Lovell v. St. Louis Insurance Co., 111 U. S. 264. And it is a general principle that if parties make an agreement to which effect can be given only by the continuance of an existing state of things, each impliedly engages to do nothing that will end that state. Stirling v. Maitland, 5 B. & S. 840. So firmly is this established that, although impossibility caused by law is a well-recognized excuse, it will not avail where the defendant secured the passage of the disabling law. Re Companies Act, 117 L. T. 60; see 18 HARV. L. REV. 64. A partnership has recently been held not discharged from its executory contracts by a sale of its business. Ogdens (Limited) v. Nelson, [1904] 2 K. B. 410. The court seeks to distinguish the principal case by the fact that the consideration had not been given. But other cases do not require that. Brace v. Calder, [1895] 2 Q. B. 253. At most the distinction can be important only as bearing on the probability of an implied agreement; and in this case the contract seems too clear for it to have any decisive effect.

EQUITABLE ELECTION - BEQUEST BY DONEE OF POWER TO ONE ENTITLED IN DEFAULT OF APPOINTMENT - REMOTE APPOINTMENT.—A testator under a power made appointments that were too remote, and by the same will gave some of his own property to those entitled in default of appointment. Held, that no case of election is raised. In re Oliver's Settlement, 21 T. L. R. 61 (Eng., Ch. D.).

Where a testator appoints to persons not objects of a power and leaves his own property to one who would take in default of appointment, the latter is put to his election. Whistler v. Webster, 2 Ves. Jun. 367. But where the appointment fails because too remote, election has been considered unnecessary. See Wollaston v. King, L. R. 8 Eq. 165. This dictum applied a supposed exception that election requires one claim dehors the will. This is doubtful, and inapplicable to the facts of later cases. GRAY, PERPETUITIES $$ 541-559; In re Warren's Trusts, 26 Ch. D. 208. That case refuses election, since the remote appointment is considered ex facie void and therefore not to be read as part of the will. But remoteness like the objects of the power can be determined only by examining the instrument creating the power. The principal case rests squarely on the ground that as the rule against perpetuities is based on public policy it should not be circumvented. But no policy forbids one who takes at law on default to limit the property as the testator desires if he wishes to receive his legacy, provided he himself respects the rule against perpetuities. Yet that would be just the effect of election here, as in the normal case of bequeathing a legatee's property. See GRAY, PERPETUITIES § 561. The weight of authority, however, is with the principal case. Re Beales' Settlement, 118 L. T. 154; contra, In re Bradshaw, [1902] i Ch. 436; see Graham v. Whitridge, 57 Atl. Rep. 609, 615 (Md.).

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EVIDENCE DECLARATIONS CONCERNING INTENTION POST-TESTAMENTARY DECLARATIONS OF TESTATOR ON ISSUE OF REVOCATION. Held, that declarations by a testator to the effect that he was satisfied with a will are inadmissible to rebut the presumption of revocation raised by failure to produce the will. In re Colbert's Estate, 78 Pac. Rep. 971 (Mont.). See NOTES, p. 387.

EVIDENCE-DECLARATIONS CONCERNING INTENTION - STATEMENTS IMPLYING INTENTION TO COMMIT SUICIDE AS PROOF OF SUBSEQUENT ACT. — In an action on a life insurance policy, the defendant, in order to prove that the insured had committed suicide, sought to introduce in evidence the following declaration of the deceased made about an hour before his death: "Adolph, will you be as good a friend to my wife as you have been to me?" Held, that the declaration is not admissible. Ross-Lewin v. Germania, etc., Co., 78 Pac. Rep. 305 (Col.).

In most jurisdictions declarations of intention are admitted in proof of a subsequent act, where the declarations are made under circumstances precluding the idea of misrepresentation or bad faith, and so close to the act in point of time as to render it probable that the intention was carried into execution. Commonwealth v. Trefethen, 157 Mass. 180; Rens v. Northwestern, etc., Ass'n, 100 Wis. 266. In the present case the court, while not squarely rejecting this doctrine, refuses to apply it to a case where the statement does not expressly declare the alleged intention, but merely implies it. The soundness of this decision seems doubtful; for, once admitting that the intention is a relevant fact and that it may be proved by evidence of declarations, it is difficult to see why a statement should not be admitted, which under the circumstances could reasonably be interpreted as expressing such intention. In cases of murder and arson remote and obscure allusions to the act in contemplation are often admitted to show an existing disposition or design. State v. Hoyt, 47 Conn. 518; State v. Gailor, 71

N. C. 88.

EVIDENCE-GENERAL PRINCIPLES AND RULES OF EXCLUSION - COURT'S DIS CRETION TO EXCLUDE PURELY CUMULATIVE EVIDENCE. — Held, that in a jury trial evidence should not be excluded on the ground that testimony already introduced, if believed, amounts to proof. Perkins v. Rice, 72 N. E. Rep. 323 (Mass.). See NOTES, p. 381.

EXECUTORS AND ADMINISTRATORS- ADMINISTRATION BOND-SURETY'S LIABILITY FOR DEBT OF INSOLVENT ADMINISTRATOR. — Held, that the sureties on an administrator's bond are not liable for a debt which the administrator owed the estate, when he was at all times insolvent. Buckel v. Smith's Administrator, 82 S. W. Rep. 1001 (Ky.).

There is no statute in Kentucky affecting debts due the estate by the administrator. At common law the appointment of the intestate's debtor as administrator suspended action on the debt. Ferebee v. Doxey, 6 Ired. (N. C.) 448. But later the equitable presumption that what the law requires to be done has been done, was invoked, even in actions at law, to make his own debt assets in the hands of the administrator. Crow v. Conant, 90 Mich. 247. This fiction of payment has been applied to charge the surety on the administration bond with the full amount of the debt even though the debtor was insolvent when he became administrator. Leland v. Felton, 1 Allen (Mass.) 531. Since this presumption is an equitable one, however, it should be limited by considerations of fairness. The surety of the administrator did guarantee an honest administration, but he never contemplated becoming in effect a surety for past obligations; and to permit the estate to profit at his expense by the interposition of a legal fiction seems manifestly unjust. See McCarty v. Frazier, 62 Mo. 263.

EXECUTORS AND ADMINISTRATORS PROCEEDINGS BY OR AGAINST — RIGHT TO APPEAL FROM DECISION IN FAVOR OF LEGATEE. By an express stipulation in a will, any beneficiary contesting it was to forfeit his interest thereby. The executrix claimed that the petitioners had lost their rights under the will by a violation of this provision, and brought this appeal from an adverse order of the probate court. Held, that the appellant, as executrix, not being a party aggrieved, cannot have this question decided on appeal. In re Murphy's Estate, 78 Pac. Rep. 960 (Cal.).

Whenever obedience to the order of the probate court would subject the executor to liability it is clear that he is an interested party having the right of appeal. In re Welch, 106 Cal. 427; Cheever v. Washtenaw Circuit Judge, 45 Mich. 6. But where no personal liability exists, it is questionable whether the executor alone may appeal from an order of apportionment among the beneficiaries. One group of decisions holds that the executor is a party in interest, and that it is his right and duty to appeal from an order believed to be erroneous. Ruch, Administrator v. Biery, 110 Ind. 444. A majority of the decisions, however, support the principal case. Bryant v. Thompson, 128 N. Y. 426; Merrick v. Kennedy, 46 Neb. 264. The executor certainly has an interest in securing a judicial determination of questions involving distribution of property; but such interest should not necessarily extend to the enforcement of his own preconceived views, especially if the expenses of litigation rest upon the estate. Otherwise the funds intended for one beneficiary would be used in fighting the battles of another. It would seem, therefore, that in a controversy between the legatees, the right of appeal should be left with them alone.

FIXTURES WHETHER ELECTRIC CARS ARE FIXTURES. - Under a statute authorizing the taxation of real estate, the plaintiff's electric cars were assessed. Held, that the assessment is illegal. Toronto Ry. Co. v. City of Toronto, [1904] A. C. 809.

In the case of steam railroads the better view, and the one supported by the weight of authority, is that the rolling stock is personalty. Williamson v. New Jersey, etc., R. R. Co., 29 N. J. Eq. 311; Hoyle v. Plattsburg, etc., R. R. Co., 54 N. Y. 314. This conclusion seems inevitable in view of the fact that the cars of one company are constantly being hauled over the lines of others. It would appear that the decision in the case of electric railways should be the same. An effort has been made, however, to draw a distinction upon the ground that, owing to the mode of operation by means of a continuous current of electricity passing from the wires through the cars and rails back to the generator, the cars are but parts of one great machine, which is affixed to the realty by means of its rails and power house. Bank of Montreal v. Kirkpatrick, 2 Ont. L. Rep. 113. This reasoning seems fanciful, and utterly fails to cover the case where the cars of a suburban line pass from their own tracks along those of a city company. The present decision, holding that electric cars are personalty, overrules the case last cited.

GIFTS GIFTS MORTIS CAUSA-DONEE ALREADY IN POSSESSION. - The plaintiff's father, shortly before his death, told the plaintiff that he gave him a team of horses,