114 Cal. 554. The strongest argument in favor of the evidence is the difficulty of proving the charge in such cases without it. But the probative value of statements by so young a child is speculative, especially when, as in the principal case, the particulars of the complaint are not admitted. The distinction thus drawn between the fact of complaint and the particulars, though commonly adopted, is always unsatisfactory, and might well have been rejected where there is apparently a disposition to lay down a new and rational rule. See 11 HARV. L. REV. 199. The decision illustrates a tendency of modern courts to admit matter believed to be probative, disregarding the fixed rules of evidence.

INTERNATIONAL LAW APPLICATION OF PENAL LEGISLATION TO FOREIGN MERCHANT VESSELS.-Section 24 of the Act of December 21, 1898 (30 U. S. Stat. 763) forbids the payment of a seaman's wages in advance to himself or any other person, and subjects the vessel on which the seaman has shipped to libel by the seaman for the amount of wages paid in violation of this statute. It is further provided that "this section shall apply as well to foreign vessels as to vessels of the United States." A seaman shipped on a British vessel in an American port, and part of his first month's wages was paid in advance to a shipping agency. He subsequently libelled the vessel. Held, that the application of this statute to foreign merchant vessels is within the power of the United States. The Kestor, 110 Fed. Rep. 432 (Dist. Ct., Del.); contra, The Eudora, 110 Fed. Rep. 430 (Dist. Ct., E. D. Pa.).

The jurisdiction of a state within its territorial waters is, potentially, absolute. See Schooner Exchange v. McFaddon, 7 Cranch 116. Exemption from jurisdiction exists only for convenience, and by virtue of the consent of the state; and it is allowed by recognized international usage only in the cases of foreign war vessels, and vessels belonging to a sovereign. Schooner Exchange v. McFaddon, supra; The Parlement Belge, 5 P. D. 197. Merchant vessels are regularly, in the absence of treaty stipulations, subject to local laws while in port. United States v. Dickelman, 92 U. S. 520. In some countries, a certain amount of immunity from local jurisdiction, as to things done on board, is granted to merchant vessels by the so-called "French rule." The Newton and The Sally, ORTOLAN, I DIPLOMATIE DE LA MER, 450; The Tempest, ib., 455. The rule has not yet been generally adopted. See HALL, INTERNAT. LAW, § 57. It has been recognized by the United States under a treaty with Belgium. See Wildenhus's Case, 120 U. S. 1. The acts complained of in the principal case were not done aboard but ashore; there was no treaty calling for the application of the "French rule;" and it is further submitted that in any case, whatever immunity merchant vessels have enjoyed may be withdrawn by a state in the exercise of its sovereignty. By the statute in the principal case, Congress clearly showed an intention to exercise this potential authority. The decision in The Eudora, supra, is based on the fiction of extra-territoriality, which is discussed below.

- Held,

INTERNATIONAL LAW THE FICTION OF EXTRA-TERRITORIALITY. that an act of Congress cannot apply to a foreign merchant vessel in American waters, since such vessel is a part of the territory of the country to which she belongs. The Eudora, 110 Fed. Rep. 430 (Dist. Ct., E. D. Pa.).

The jurisdiction of a country was formerly regarded as co-extensive with its territory. Accordingly, to explain jurisdiction over vessels on the high seas it was said that they were part of their country's territory. The fiction was extended to vessels in the territorial waters of a foreign state whenever the latter did not choose to exercise its jurisdiction. See HALL, INTERNAT. Law, § 48. It seems never to have been used, as in the principal case, for the purpose of denying the right of a state to exercise jurisdiction within its territorial waters. The fiction fails to explain the situation logically when a vessel sinks, or when a vessel belonging to a state whose boundaries are fixed by statute, sails beyond the boundaries so fixed. See DANA'S WHEAT., INTERNAT. LAW, 303, 304; see also McDonald v. Mallory, 77 N. Y. 546. The fiction is moreover unnecessary. Some law must govern a vessel at all times, and since there is no territorial law on the high seas, the law of the flag is the law most rationally to be applied. The reason for applying it ceases when the vessel comes where some territorial law is in force. Under those circumstances it is only when the state waives its jurisdiction, as it usually does in cases of war vessels or vessels of a sovereign, and may do in case of merchant vessels, that the law of the flag will govern. See The Kestor, 110 Fed. Rep. 432, and the discussion of that case above.

MORTGAGES ASSIGNEE ASSUMING MORTGAGE DEBT-EXTENSION OF TIME BY MORTGAGEE. A mortgagee contracted with the assignee of the mortgagor to extend the time on the mortgage. After the extended time had elapsed, the mortgagee sued the mortgagor on his original covenant. It appeared that the mortgagor was not actually injured by the giving of time. Held, that his liability is not thereby discharged. Forster v. Ivey, 21 Can. L. T. 550 (Can., Sup. Ct.). Šee NOTES, p. 398.

MORTGAGES ASSIGNEE ASSUMING MORTGAGE DEBT-LIABILITY IN EQUITY. — A mortgagor assigned his interest to one who assumed the mortgage debt. Subsequently the mortgagee foreclosed, and, the land being insufficient to satisfy the debt, obtained judgment for the balance against the mortgagor. The latter sought in equity to enforce his assignee's promise to pay. Held, that he has no remedy in equity. Thompson v. Lodge, 58 Legal Intel. 428 (Phila. Co.). See NOTES, p. 398.

MUNICIPAL CORPORATIONS ASSESSMENTS FOR LOCAL IMPROVEMENTS INFERIOR WORK AS A DEFENCE. - A contractor, in carrying out a street improvement, failed to conform to the specifications of the ordinance authorizing the work, and the improvement was of less value than if the specifications had been followed. Held, that these facts are not available as a defence to one whose land was assessed for the improvement. People v. Whidden, 61 N. E. Rep. 133 (Ill.).

When land is assessed for local improvements, all conditions precedent to legally entering upon the work, such as filing of plans, publishing notice, and kindred matters, must have been strictly complied with. Harper's Appeal, 109 Pa. St. 9. Moreover, where the contractor was the real plaintiff, suing on tax-certificates, the defence urged in the principal case has been allowed. Erie City v. Butler, 120 Pa. St. 374; contra, Fass v. Seehawer, 60 Wis. 525. And in any case if the completed work is a materially different improvement from that for which the assessment was authorized, the levy is void. Pells v. People, 159 Ill. 580. But when this is not the case and the suit, as usually happens, is between the city and the tax-payer, objections to the quality of the work by persons assessed are not generally entertained after it has been completed and accepted. Ricketts v. Hyde Park, 85 Ill. 110; Lowell v. Hadley, 8 Met. (Mass.) 180. In such cases, if no fraud appears, the tax-payer cannot question the discretion of the municipal officials. See State v. Jersey City, 29 N. J. Law 441, 449. Before completion and acceptance, persons interested may compel adherence to specifications by injunction or mandamus. People v. Green, 158 Ill. 594, 597. The decision in the principal case is necessary to avoid trivial pleas which would seriously interfere with the collection of assessments.

PROCEDURE-TRIAL OF FELONY - PRESENCE OF ACCUSED. On a trial for felony, before the entrance of the prisoner into court, a witness was asked her name and that of her husband; the absence of the prisoner was then noticed and he was brought into court and the same questions were asked and the same answers given. Held, that the taking of such testimony in the absence of the accused constituted reversible error. State v. Sheppard, 39 S. E. Rep. 676 (W. Va.).

The rule that in a trial for felony the accused must be present at every stage of the proceedings, is one of the fundamental principles of the common law and has frequently been reinforced in this country by statutory enactments and constitutional provisions. French v. State, 85 Wis. 400; Maurer v. People, 43 N. Y. 1. Though the reasons for the rule are far less strong in modern times, it is still strictly enforced. See II HARV. L. REV. 409. But courts ought to apply the rule rationally, and not, for technical but immaterial violations, subject the state to the expense and the delay of justice caused by a re-trial. People v. Bragle, 88 N. Y. 585. If there is a particle of doubt as to whether the error might possibly prejudice the accused, reversal is justifiable; but in the principal case no harm to the accused could result, and the blind adherence to the letter of the rule necessarily tends to injure the standing of the courts and the law in popular estimation.

PROPERTY AUXILIARY ADMINISTRATION PAYMENT TO FOREIGN ADMINISTRATOR. A savings bank in New York paid over the sum standing to the credit of a deceased non-resident depositor, to the domiciliary administrator. An auxiliary administrator previously appointed in New York, sued the bank for the amount of the deposit. Held, that the payment to the foreign administrator is no bar to the action. Maas v. German Savings Bank, etc., 36 N. Y. Misc. 154 (Sup. Ct., App. Term).

Letters of administration have no extra-territorial effect, and confer upon the per

son appointed no rights as administrator in any foreign court, except where such rights are given him by statute of the foreign state. Goodwin v. Jones, 3 Mass. 514. He may, however, under certain circumstances, accept voluntary payments within a foreign jurisdiction, and give a valid discharge. Wilkins v. Ellett, 9 Wall. 740. This privilege is commonly granted whenever no auxiliary administrator has been appointed. But being extended merely by comity, it might well be denied whenever the interests of resident creditors are at stake. See Parsons v. Lyman, 20 N. Y. 103. Upon application of any such creditors an auxiliary administrator will be appointed, who then has exclusive authority over all assets within the jurisdiction, superseding that of the domiciliary administrator. Reynolds v. McMullen, 55 Mich. 568. He may even demand from the latter all evidences of these assets. McCully v. Cooper, 114 Cal. 258. Any subsequent payment to the foreign administrator upon such debts would logically be no bar to an action by the auxiliary administrator, and so it was decided in the only cases directly in point which have been found. Walker v. Welker, 55 Ill. App. 118; Stone v. Scripture, 4 Lans. (N. Y.) 186.

PROPERTY

DEEDS OF INSANE PERSONS. Held, that the deed of an insane person is absolutely void. Daugherty v. Powe, 30 So. Rep. 524 (Ala.); Wilkinson v. Wilkinson, 30 So. Rep. 578 (Ala.).

The prevailing rule is that deeds of insane persons are merely voidable. Allis v. Billings, 6 Met. (Mass.) 415; Eaton v. Eaton, 37 N. J. Law 108; Riggan v. Green, 80 N. C. 236. The Alabama decisions above, however, are well supported by authority. Thompson v. Leach, 3 Mod. 301; Matter of Desilver, 5 Rawle (Pa.) 111; Van Deusen v. Sweet, 51 N. Y. 378. The conflict is doubtless largely due to the confusion in the use of the words void and voidable. See State v. Richmond, 26 N. H. 232, 237. It has been maintained that a lunatic is incapable of the mental act requisite for a contract or a deed. Dexter v. Hall, 15 Wall. 9, 25. The modern tendency, however, makes the case of an insane person similar to that of an infant. The mental weakness of the one, like the immaturity of the other, makes it easy for unscrupulous persons to gain an unfair advantage. The law as a matter of policy protects the infant by allowing him to avoid his contracts at his election without denying him the benefit of such as are to his advantage, and insane persons would seem entitled to the same treatment. Of course where adjudication statutes vest the lunatic's property in a committee, the deed of one adjudged insane is a nullity. Griswold v. Butler, 3 Conn. 227, 231. Otherwise justice is best served by making the deed merely voidable.

PROPERTY DETERMINATION OF CLASS-DEVISE OF REMAINDER TO SURVIVING CHILDREN. — A testator devised land to his daughter for life, "and at the time of her decease to her surviving children equally share and share alike" in fee. Held, that a remainder vested at the testator's death in the daughter's children then living. In re Twaddell, 110 Fed. Rep. 145 (Dist. Ct., Del.).

The land being in Pennsylvania, the court follows a Pennsylvania decision that the word "surviving" in this connection means surviving the testator, not the life-tenant. Ross v. Drake, 37 Pa. St. 373. This construction is supported by one English case. Doe v. Prigg, 8 B. & C. 231. The cases, however, on which that decision was founded have since been overruled, and the decision itself is discredited accordingly by numerous judicial expressions. See Neathway v. Reed, 3 De G. M. & G. 18; In re Gregson, 2 De G. J. & S. 428. As to a devise of the precise form set out above, no American decision found adopts the Pennsylvania construction and several reject it. Slack v. Bird, 23 N. J. Eq. 238; Cheatham v. Gower, 94 Va. 383. One case applied that construction to a remainder devised to the testator's surviving children. Grimmer v. Friederich, 164 Ill. 245. Contrary decisions are numerous. Coveny v. McLaughlin, 148 Mass. 576. In these cases if the word "surviving" is referred to the testator's death it is superfluous. They are in that respect distinguishable from the principal case, where "surviving" might have been inserted to exclude children born after the testator's death. As a matter of good sense, however, the testator's intention is, it is submitted, more correctly read by the authorities which oppose Ross v. Drake, supra. PROPERTY SALE BY ONE ENTRUSTED WITH POSSESSION CERTIFICATE OF INDEBTEDNESS INDORSED IN BLANK - BREAKING BULK. The plaintiff left with brokers for safe keeping an envelope containing certificates of indebtedness of a city, indorsed in blank. The brokers sold the certificates to an innocent purchaser. Held, that the purchaser did not get title. Scollans v. Rollins, 60 N. E. Rep. 983 (Mass.). See NOTES, p. 403.

PROPERTY-VENDOR'S LIEN UPON REAL ESTATE - WAIVER. — The defendant, acting as his wife's agent, obtained from the plaintiff a conveyance of real estate to the wife's appointees, giving as part of the consideration his own promissory note with sureties. Held, that the vendor's lien is thereby waived. Shrimsher v. Newton, 64 S. W. Rep. 534 (I. T.).

About half of the states have accepted the English doctrine allowing an equitable vendor's lien on realty. See 2 JONES, LIENS, 2nd ed., § 1063. This lien is commonly said to be based on a natural equity, and to exist by implication of law unless a contrary intention is manifested by the parties. Mackreth v. Symmons, 15 Ves. 329. But what will suffice to show a contrary intention is much disputed. See 3 POM., Eq. JUr., § 1251. American courts generally infer from the acceptance of the personal obligation of a third person either a conclusive or a presumptive waiver of the lien. Boynton v. Champlin, 42 Ill. 57; see Hunt v. Marsh, 80 Mo. 396; contra, Grant v. Mills, 2 Ves. & B. 306. It is doubtful whether such an inference is well founded. See Kauffelt v. Bower, 7 S. & R. 64, 77. But the wisdom of recognizing such liens at all is questionable, for the policy of our law as illustrated by the registry system is opposed to secret and uncertain encumbrances. See Ahrend v. Odiorne, 118 Mass. 261. The restriction of the doctrine, therefore, is not to be regretted. Where the third person is really the purchaser, although the conveyance runs to his wife, the acceptance of his note is no waiver. Hunt v. Marsh, supra; contra, Andrus v. Coleman, 82 Ill. 26. The principal case, however, in which the defendant acted solely as agent, falls within the general rule.

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SALES BAILMENT WITH OPTION TO BUY OWNER'S REMEDY UPON TOTAL REPUDIATION. In a written agreement the plaintiff promised to the defendant the use of a certain piano for the next nine months, for which the defendant promised to pay $25 cash and $250 in specified unequal instalments; the plaintiff further agreeing to give the defendant, for three months after the period mentioned, the option to buy for $25 more. The writing referred to the agreement as a lease, and stated the value of the piano as $300. The defendant refused the piano when possession was tendered, and was sued for the first $25 before the date set for the second payment. Held, that the plaintiff may recover the first payment in full. Gray v. Booth, 64 N. Y. App. Div. 231.

If the transaction was, as the court treats it, the usual conditional sale, in which the seller retains title merely for security, the plaintiff may properly recover the full price in instalments, exactly as if he had given title and taken it back by way of mortgage. Marvin Safe Co. v. Emanuel, 14 N. Y. St. Rep. 681. If a sale in substance, it will be so treated though in form a lease. Murch v. Wright, 46 Ill. 487. The objection, however, is conclusive that since there was no promise to pay the price, there was no sale. McCall v. Powell, 64 Ala. 254. Perhaps the case was thought analogous to those where one who contracts to buy and later refuses to take title is liable for the full price. This rule practically gives specific performance at law; but it was early recognized in New York and is there freely applied. Bement v. Smith, 15 Wend. (N. Y.) 493; Hayden v. Demets, 53 N. Y. 426. In cases purely of sale, it forces on the defendant what he agreed to buy, namely, the title to the chattel. This effect, necessary to justify the rule, is impossible where, as in the principal case, the subject of the defendant's purchase is the actual use of a chattel. Therefore neither of the rules discussed, apparently the only ones available for the purpose, suffices to support the decision.

STATUTE OF LIMITATIONS PART PAYMENT BY ADMINISTRATOR. A payment was made by an administrator upon a debt owed by his intestate, but barred by the Statute of Limitations. There was no express promise by the administrator to pay the balance. Held, that this is sufficient to take the debt out of the statute. Slattery v. Doyle, 61 N. E. Rep. 264 (Mass.).

In some jurisdictions an executor or administrator has no power to affect the operation of the statute. Henderson v. Ilsley, 19 Miss. 9. Massachusetts and a few other states give to the acts of an executor the same effect as if done by a debtor. Foster v. Starkey, 12 Cush. (Mass.) 324; Shreve v. Joyce, 36 N. J. Law 44. Between these two extremes there are several intermediate views, involving numerous distinctions. See Patterson v. Cobb, 4 Fla. 481; Ray v. Strickland, 89 Ga. 840; Woods v. Irwin, 141 Pa. St. 278. In England and some American states where an executor may control somewhat the effect of the statute, an express promise is required; and acknowledg ments by an executor that would be sufficient if made by a debtor, are held insufficient

to bind the estate. Oakes v. Mitchell, 15 Me. 360; Tullock v. Dunn, Ry. & M. 416. In one case a part payment by an executor was held not to imply a promise to pay the balance, the question being treated as one of reasonable inference. McLaren v. McMartin, 36 N. Y. 88. In view of the Massachusetts doctrine, the decision in the principal case was to be expected, but it would seem the sounder policy to limit, if not to deny altogether, the power of the administrator to affect the operation of the statute. See 11 HARV. L. REV. 129.

TORTS CONSPIRACY MONOPOLY.-Held, that a declaration alleging that the defendants agreed to deal with each other and no one else, for the purpose, among others, of driving the plaintiff out of business, and that such result was accomplished, states a cause of action at common law. Hawarden v. Youghiogheny Co., 87 N. W. Rep. 472 (Wis.). See NOTES, p. 402.

TORTS - IMPUTED NEGLIGENCE SUIT BY CHILD. A child of fifteen was injured by the negligence of the defendants, the father contributing to the accident by his carelessness. Held, that the negligence of the father is not imputable to the child so as to bar her recovery. Ives v. Welden, 87 N. W. Rep. 408 (Ia.).

In rejecting the doctrine of imputed negligence, the decision is in line with the modern tendency. Wymore v. Mahaska County, 78 Ia. 396; Warren v. Manchester St. Ry. Co., 47 Atl. Rep. 735. But some jurisdictions, in cases of the child's death, have barred suits in which the negligent parent, if not the direct beneficiary, will eventually be the main gainer, on the ground that the real beneficiary should not be rewarded through his own fault. Bamberger v. Citizens' St. Ry. Co., 95 Tenn. 18. This objection is of considerable weight even when the child survives, and suit is brought by him or for his benefit, since as a matter of practical experience, it is generally the parents who profit most by the recovery of the child. Still the child would usually derive some benefit from the damages recovered, and to this he should be entitled. The possibility of rewarding a negligent parent would be rather a weak ground on which to deny any remedy to the injured child. The decision in the principal case, then, seems to reach the right result.

TORTS-STATUTORY NUISANCE RIGHT TO Abate. A statute declared any place where intoxicating liquors were sold a public nuisance, and provided that any citizen of the county in which such a nuisance existed might bring a suit in the name of the state to abate and enjoin the same. Held, that this statute does not justify a citizen in demolishing such a place. State v. Stark, 66 Pac. Rep. 243 (Kan.).

In

A private individual may abate a public nuisance only when it is also a private nuisance as to him, or incommodes him more than the rest of the public. See Brown v. Perkins, 12 Gray (Mass.) 89; WOOD, NUIS., 3rd ed., § 733. The statutory provision in the principal case does not make the offence a private nuisance as regards the citizen instituting the suit, so as to give him the right to abate, for it is expressly provided that the proceedings shall be in the name of the state. Iowa, a similar statute allows the action to be brought in the citizen's name, and in Massachusetts it may be brought in the form of a petition by ten legal voters. In all these cases where private individuals may sue in their own names to enjoin what is solely a public nuisance, they must be regarded as special state's attorneys quoad hoc, mere public agencies to set the law in motion. See Carleton v. Rugg, 149 Mass. 550, 554. The principal decision is in accord with the authorities. Brown v. Perkins, supra.

TRUSTS-BENEFICIARIES OF INSURANCE POLICY AS TRUSTEES. A guardian insured his life in the name of his wards, for the declared purpose of protecting his wards and his bondsmen from any loss to the estate of the wards. The guardian died, having squandered the estate. The new guardians collected the insurance, and then sued the sureties on the bond. The defendants contended that the policy was held in trust primarily for them, and that the fund collected should be applied to discharge their liabilities. Held, that there was no such trust, and that the defendants are liable Herring v. Sutton, 39 S. E. Rep. 772 (N. C.).

There is much authority supporting the statement of the court that the wards took a vested property right in the policy, so that the policy and the money due under it belonged at law to them. Central Bank, etc., v. Hume, 128 U. S. 195. But this right was given them by the guardian, and the reason why he could not impose a trust upon it is not very evident. It has been held that a beneficiary of a life policy may be