upon the lease. Bourdillon v. Dallon (1795) 1 Esp. 235: Turner v. Richardson (1806) 7 East 335. The election to adopt must be manifested by a positive act. Wheeler v. Bramale (1813) 3 Camp. 340. And until the assignee elected to adopt, the bankrupt continued liable for the rent. Copeland v. Stephens (1818) 1 B. & Ald. 593. This doctrine has been adopted in the United States. In re Washburn (1874) 11 N. B. R. 66: Hoyt v. Stoddard (1861) 2 Allen 442. It has been held that exercising the equity powers conferred by the Bankruptcy Act of 1898, the court will enjoin the lessor from interference with the assignee during the time necessary for the latter, who has renounced the lease, to remove the bankrupt's goods from the premises. In re Chambers, Calder & Co. (1900) 98 Fed. 865. But, upon his election to adopt, the assignee became the true assignee of the term, and, consequently, the lessor could distrain or sue for the rent without the consent of the bankruptcy court. Ex parte Till (1873) L. R. 16 Eq. 97. It should be noted, however, that the Federal Bankruptcy Acts of 1867 and 1898, have, in effect, departed from the English rule, and cut off the landlord from the freedom of resort against the tenant. In re Duble (D. C. Pa 1902) 117 Fed. 794. So under the Companies Acts of 1862 and 1867, the English Courts hold the official liquidator liable for rent only when he has entered and used the leased premises for the purposes of winding up. In re Progress Ass. Co. (1870) L. R. 9 Eq. 370. But the entry and user must be actual. In re Oak Pits Colliery Co. (1882) 21 Ch. D. 322.

Quite different is the status of a chancery receiver. He is not, and cannot make himself, the assignee of any term of years; equity, acting as it does in personam, can confer on him no estate. Consequently, if among the assets there is a leasehold estate, the lessor cannot, without the consent of the Chancery Court, sue its receiver for rent, or eject him for the non-payment thereof. In re Bittersby's Estate (1883) 31 L. R. Ir. 73: Angel v. Smith (1804) 9 Ves. 335. or distrain, Eyton v. Ry. Co. (1869) 38 L. J. Ch. 74. If the lessor omit to get the Court's consent to a distress, he cannot claim a lien on the estate as a whole, or any part thereof. Re Sutton (1863) 8 L. T. 343.

In the United States Supreme Court this question arose upon an intervention to obtain against a receiver specific performance of a contract for the purchase of rolling-stock, made by the defendant to the original bill. Oil Co. v. Wilson (1891) 142 U. S. 313. The court, per BROWN, J., held that a receiver has a reasonable time in which to elect to adopt or renounce any of the contracts, leases, etc., of which he is placed in charge; citing, for this position, Turner v. Richardson, supra. Soon thereafter the rule of Oil Co. v. Wilson was applied to the exact question of the liability of a railway receiver for rent of a leased line. Railroad Co. v. Humphreys (1892) 145 U. S. 82. Still again the Court, per BROWN, J., applied this rule in U. S. Trust Co. v. Wabash Ry. (1893) 150 U. S. 287; and in Dushane v. Bell (1895) 161 U. S. 513. FULLER, C. J., laid down this rule as applying equally to the cases of a receiver and of a bankruptcy assignee. The lower courts have obediently followed the lead. NY. P. & O. Ry. v. Erie Ry. (1893) 58 Fed. 268: Platt v. Reading R. R. (1898) 84 Fed, 535.

In some of the State Courts the Federal rule as to the receiver's

liability is followed. Tradesman Pub. Co. v. Car Wheel Co. (1895) 95 Tenn 634. It was distinctly repudiated, however, in Bell v. Am. Pro. League: Re Grace (1895) 163 Mass. 558. There the receiver failing in his attempt to sell the lease, evacuated the premises after paying rent for the time he was in possession. The landlord intervened for rent for the balance of the term. The Court held that, as a chancery receiver is not the assignee of the term, there is no question as to his renunciation or retention of the lease: the court will allow a reasonable rent only for the time the receiver is in possession, whether that time be long or short. LATHROP, J., regards the Federal doctrine as founded on the false assumption that the receiver can make himself assignee of the term. To the same effect are Gaither v. Stock

bridge (1887) 67 Md. 222 : Johnson v. Amos (1901) 114 Iowa 530. In cases involving receivers under statutes expressly making them assignees of all the defendant's effects, the New York court used expressions indicating a tendency toward the Federal view. But these were repudiated and the rule settled in that State, by Stokes v. Hoffman House Co. (1901) 167 N. Y. 554. There it appeared that the plaintiff was appointed receiver in a former action brought to foreclose a mortgage upon the ground-lease of a hotel. The plaintiff, as such receiver, conducted, for a long time, the business of the hotel. The defendant bought the premises at foreclosure sale. Thereupon the lessor demanded rent covering the period of the receivership. Upon his threatening eviction, the plaintiff, at the defendant's request, paid the lessor, out of the fund raised by the sale, the demanded rent. The Court held that the plaintiff could recover, reasoning that (1) the plaintiff could not, by adoption, make himself assignee of the term; (2) the only way the landlord could get rent at all was to intervene in the original suit, and, until the entry of an order granting the prayer of the intervention, no liability lay upon the receiver from that direction; (3) hence, as the plaintiff was under no legal obligation to do what he promised the defendant to do, his promise was a good consideration for that of the defendant.

Theoretically the Federal doctrine would make the receiver liable for all rent to be due under the lease, no matter how long, at the time of that officer's appointment, the term may have yet to run. Actually, however, judicial sale of the leasehold, among the other assets, relieves the receiver from apprehension on that score. In the principal case, however, the leased premises were not included in the sale order, and, at the time of the intervention, were still on the receiver's hands, he having from time to time, until his election to adopt the lease, put off the lessor with evasive replies. The court ordered the surrender of the premises to the lessor, and the payment of rent according to the terms of the lease from the day of the receiver's adoption of the lease to the date of this decree. An interesting question would have been presented had the lessor sued at law for his rent for the entire term, on the expiration thereof. If the Federal courts should then be consistent they would give judgment for the lessor. For, by the old bankruptcy rule if the assignee elects to adopt the lease he becomes liable for the rent de bonis propriis, with the right of exoneration out of the effects. Buckner v. Jewell (1876) 14 N. B. R, 286. The lessor here, however, contented himself with getting his land back with rent to date.

RECENT DECISIONS.

ADMINISTRATION-BONA VACANTIA. A person domiciled in Austria died intestate and without kin, leaving personal property in England. Held, the property went to the English crown and not to the Austrian government. In re Barnett's Trusts, [1902] 1 Ch. 847.

It was contended that by the Austrian law the Austrian finance minister was the legal personal representative of the deceased and was entitled under the maxim mobilia personam sequuntur. The basis of this claim was that there was a right of succession, that the crown took as ultimate heir." But the court remarked upon the inaccuracy of that expression, and pointed out that the Austrian minister in no way represented the person of the deceased. Consequently there was no persona to follow. The king takes title to bona vacantia not as heir but in the exercise of his royal prerogative. I Bl. Com. 298; Public Administrator v. Hughes (N. Y. 1850) 1 Bradf. 125; State v. Ames (1871) 23 La. Ann. 69. For the conflicting claims of the crown and the ordinary, and the jurisdiction of the latter, see Hensloe's Case (1600) 5 Co. Rep. 36; 2 Bl. Com. ch. 32; and especially Dyke v. Walford (1846) 5 Moo. P. C. 434, where, as KEKEWICH, J., says, may be found all the learning on the subject of bona vacantia.

AGENCY-APPARENT AUTHORITY-FRaud. The plaintiffs stored timber with a dock company and gave the company authority to accept, for the transfer or delivery of the timber, orders signed by a certain clerk in the plaintiffs' employ, whom they authorized to sell timber as their agent. This clerk, in fraud of the plaintiffs, signed an order for the transfer of the timber to a fictitious person in whose name he both sold it to the defendants and gave them orders upon the dock company, by which they obtained delivery of the timber. The defendants were innocent purchasers for value. Held, the plaintiffs were not responsible for the fraud of their clerk and had never lost title. Farquarson Brothers & Co. v. King & Co., [1902] A. C. 325 (H. L.), reversing [1901] 2 K. B. 697. See 2 COLUMBIA LAW Review, 44, where the decision of the Court of Appeal is discussed.

AGENCY IRREVOCABLE AUTHORITY. The defendant, through a mistake in no way induced by the vendor, became the purchaser at a public auction of a different property from that which he came to buy. On his refusing to sign the memorandum of sale the auctioneer signed it. Held, the authority of an auctioneer to sign a memorandum of sale as agent of the highest bidder is irrevocable. Van Praagh v. Everidge, [1902] 2 Ch. 266.

It was settled by Emerson v. Heelis (1809) 2 Taunt. 38, that an auctioneer has authority to sign a memorandum of sale as agent for the highest bidder. The doctrine of the principal case that such authority is irrevocable rests merely on dicta in Day v. Wells (1861) 30 Be av.220, and Bell v. Balls, [1897] 1 Ch. 663, 672, and is contrary to the ordinary rule that an agency may be terminated at any time. It does not fall within the exceptions that an agent's authority is to be treated as irrevocable where given to secure his interest, or where in pursuance of it the agent has incurred a personal obligation. Read v. Anderson (1882) 10 Q. B. D. 100; Hess v. Rau (1884) 95 N. Y. 359. It seems directly contrary to Farmer v. Robinson (1805) 2 Camp. 339 note, where Lord Ellenborough held that even after a broker had made an authorized sale of goods his authority to sign the memorandum could be revoked.

AGENCY OSTENSIBLE OWNERSHIP. The plaintiff sent a bond to a broker to sell, together with a transfer deed acknowledging the receipt of payment for the bond. By a statute the bond was transferrable by the registration of the deed. The broker executed a mortgage to the defendant, and delivered to him the bond and deed, which the defendant caused to be registered. The broker absconded with the proceeds of the mortgage. The plaintiff brought a bill in equity praying for a declaration that the bond belonged to him. Held, the bond belonged to the defendant. Rimmer v. Webster, [1902] 2 Ch. 163.

The court refused to adopt the dictum of ASHURST, J., in Lickbarrow v. Mason (1787) 2 Term. Rep. 63, followed by the Court of Appeal in Farquharson v. King, [1901] 2 K. B. 697, that wherever one of two innocent parties must suffer by the acts of a third, he who enabled such third person to occasion the loss must sustain it." See 2 Columbia Law REVIEW, 44. The plaintiff contended that as the broker has only a power to sell, the defendant could acquire no rights under the mortgage; but the court held that as the plaintiff had entrusted the broker with the indicia of ownership with the intention that he should deal with the property towards third parties as if he were the owner, the plaintiff was under a duty towards all who might deal with the broker, to give them notice of any limitations of his authority. Brocklesby v. Temperance Building Soc., [1895] A. C. 173. Although the plaintiff's equity was prior in time, the statements in the deed of transfer that the broker had paid value for the assignment was a representation that it was held free of any trust in favor of the plaintiff, and the plaintiff was therefore estopped to assert his equity against the defendant. Rice v. Rice (1853) 2 Drew. 73.

CARRIERS LIABILITY OF RAILROAD COMPANY FOR PACKAGE LOST IN U. S. MAILS. A package duly deposited in the United States mails was stolen through the negligence of a servant of the defendant, a railroad company, whose duty it was to carry the mail. Held, the defendant was not liable to the sender either as a common carrier or as a bailee for hire. Banker's Mutual Casualty Co. v. M., St. P. & S. S. M. Ry. Co. (C. C. A., 8th Circ. 1902) 117 Fed. 434.

In German Bank v. Minneapolis, etc., Ry. Co. (1901) 113 Fed. 414, it was held that the railroad company was not liable to the addressee of mail matter as a common carrier, but the court went on to say that had negligence been proved it might have been held as a bailee for hire. This dictum was not followed in the principal case. The court declared the defendant was a public agent of the United States, and as such was not responsible for misfeasances or nonfeasances of its subagents or servants. provided it had exercised ordinary care in selecting them, Robertson v. Sichel (1887) 127 U. S. 507; Story on Agency, § 319; and this irrespective of whether the defendant was carrying the mail by virtue of a contract with the United States, or that duty was imposed by statute. This decision has been followed in Boston Ins. Co. v. Chicago etc. Ry. Co. (Ia. 1902) 92 N. W. 88, and seems clearly correct. See 2 COLUMBIA LAW REVIEW, 410.

CONFLICT OF LAWS-REAL PROPERTY-ASSIGNMENTS FOR BENEFIT OF CREDITORS. A debtor in New York made a voluntary assignment of all his property to the plaintiff for benefit of creditors. Included in the estate was realty in Washington. Subsequent to the New York assignment and its recording in Washington, the defendant, a foreign creditor, levied execution against the property and bought it in. Held, in a bill to remove cloud on title, while attachments of local creditors would prevail, the defendant could not acquire the rights of local creditors by availing himself of local process. Bloomingdale v. Weil (Wash. 1902) 70 Pac. 94.

Foreign assignments for the benefit of creditors are never enforced to the detriment of local creditors when the assignment contravenes the policy of the laws of the forum. Varnum v. Camp (1833) 13 N. J. L. 326. The decisions are not considered harmonious as to whether foreign cred

itors should be allowed the rights of domestic creditors by availing themselves of local process. The case in hand follows the majority rule as established by Bentley v. Whittemore (1868) 19 N. J. Eq. 462. The New York courts are said to hold a contrary rule. Hibernia Bank v. Lacombe (1881) 84 N. Y. 367. But that case was not entirely analogous, as the assignment was not voluntary.

CONSTITUTIONAL LAW-ELECTIONS-NAMES OF CANDIDATES ON BALLOT. One L, nominated by two parties as a candidate for the same office, demanded that his name be printed on the ballot, under each of the two party designations. The Political Code of California, sec, 1197, provided that the name of a candidate shall be printed only once on the ballot, and, if any candidate is nominated by more than one certificate of nomination, he shall choose under which of the party designations he desires to have his name printed, and underneath the title of the office in the other party column shall be printed in brevier capital type the words "No Nomination." If the candidate shall fail to make the choice, his name shall be placed on the ballot under the party designation named in the certificate first filed. Held, the section was unconstitutional, for it interfered with the rights of political parties and the rights of candidates. Murphy v. Curry (Cal. 1902) 70 Pac. 461. See NOTES, p. 51.

CONSTITUTIONAL LAW-POWER OF THE PRESIDENT TO PARDON CIVIL CONTEMPTS. In habeas corpus proceedings it appeared that the petitioner was imprisoned for contempt in disobeying a mandamus directed to him by the U. S. Circuit Court, ordering him to levy a tax to satisfy a judgment. He prayed that the proceedings might be stayed pending his application to the President for a pardon. Held, the application was without merit, as the pardoning power of the President does not extend to civil contempts. In re Nevitt (C. C. A., 8th Circ. 1902) 117 Fed. 448. See NOTES, p. 45.

CONTRACTS-ILLEGALITY-VIOLATION OF ORDINANCE. A city ordinance prohibited brokers from doing business without a license and imposed a penalty for each violation thereof. An action was brought by the payee of certain notes, part of the consideration for which was services rendered in violation of the ordinance. Held, although the ordinance did not expressly declare contracts entered into in violation of it void, it had such effect. Douthart v. Congdon (Ill. 1902) 64 N. E. 348.

Where the prohibition is express, contracts in violation of a statute or ordinance are of course void. Where there is no express prohibition, but a penalty is imposed, some courts hold that by reason of the penalty attached the statute is by implication prohibitory. Johnson v. Hulings (1883) 103 Pa. St. 498. But the better rule is that the statute must be looked to as a whole to ascertain whether it was intended as a protection to the public or merely as a fiscal expedient. If the legislature intended to prohibit the act unless done by a qualified person, there can be no recovery for services rendered in violation of it; but if the intention was merely that the person who did it should pay a license fee, the act is not illegal. Ruckman v. Bergholz (1874) 37 N. J. L. 437; Harris v. Runnels (1851) 12 How. 79; Randall v. Tuell (1897) 89 Me. 443.

CONTRACTS-STATUTE OF FRAUDS INVOLUNTARY SEPARATION OF THE CONTRACT. The plaintiff conveyed mortgaged real estate to the defendant under an oral agreement that the defendant should pay the interest on the mortgage, and, on payment of money lent, reconvey to the plaintiff. By a bill in equity the plaintiff obtained reconveyance and then sued at law for damages for breach of the oral agreement to pay interest. Held, the oral contract to pay interest and reconvey was not separable so as to allow an action on one part, the other being within the statute of frauds. Hurley v. Donovan (Mass. 1902) 64 N. E. 685.

It is well settled that when an agreement is indivisible as to its various stipulations, so long as the stipulation within the statute of frauds remains executory no part of the contract can be enforced. Brown, Stat. of Fr. SS 140, 144. But when that part to which the statute would have applied has been executed and thus in fact severed from the remainder, an action