make no distinction when only part of the property is given. Devol v. Dye, 123 Ind. 321. The principal case went largely on the ground that delivery of the key could not be considered a symbolical delivery of part of the property to the exclusion of the rest. It would seem, however, that such delivery is not properly termed symbolical. See Coleman v. Porter, 114 Mass. 30, 33. Its importance lies in the fact that by it the recipient acquires the power of control and therefore constructive possession; the key is the means of obtaining actual possession and not merely a symbol. See Ward v. Turner, 2 Ves. Sen. 431, 442; POLL. & WRIGHT, POSS., 61 et seq. In this respect such delivery is like attornment by a bailee, and both, inasmuch as they carry with them power to control, are forms of constructive delivery, not of the narrower delivery by symbol. See Elmore v. Stone, 1 Taunt. 458. Apparently, then, the better view would have supported the gift causa mortis in the principal case.

PROPERTY-GIFT INTER VIVOS OF SAVINGS BANK ACCOUNT- RETENTION OF PASS-BOOK. A depositor withdrew her account from a savings bank, and reëntered it payable to herself or niece. Both signed their names as depositors, the original depositor retaining possession of the pass-book. Her donative purpose was established. Held, that this transaction constituted a valid gift inter vivos. Dunn v. Houghton, 51 Atl. Rep. 71 (N. J., Ch.).

The courts hesitate to hold such joint deposits valid as gifts when the alleged donor retains possession of the pass-book. Marshal v. Crutwell, L. R. 20 Eq. 328. It is, indeed, held in some jurisdictions that the gift is never complete until all control is resigned by the donor. Dougherty v. Moore, 71 Md. 248. Such cases, however, seem to overlook the ground adopted in the principal case, that entering of the name of the donee as a joint depositor supplies the place of a delivery by creating a contractual relation between the bank and the new depositor, which the donor cannot directly extinguish. Cf. Kerrigan v. Rautigan, 43 Conn. 17. It is true that he has the power, so long as he retains possession of the pass-book, to do so indirectly by drawing out the entire deposit, but this can be done by any joint depositor. See McElroy v. Albany Savings Bank, 8 N. Y. App. Div. 46. The transaction is enough to give the survivor of the joint depositors absolute rights over the account to the exclusion of the personal representative of the deceased. Mulcahey v. Emigrant Savings Bank, 62 How. Pr. (N. Y.) 463. The better view, then, seems to be that mere retention of the pass-book will not defeat the gift. McElroy v. Albany Savings Bank, supra ; Estate of Griffiths, 1 Lack. Leg. News 311.

PROPERTY-SURFACE WATER-DISCHarge in a Stream ON THE HIGHWAY. The defendant erected a retaining wall to support a building. To allow the escape of surface water, an opening was made in the wall, in which a six-inch pipe was inserted. Ice formed on the highway from water discharged through the opening; and the plaintiff, without negligence, slipped on the ice, sustaining personal injuries. Held, that this diversion of the surface water is not actionable. Jessup v. Bamford, etc., Co., 51 Atl. Rep. 147 (N. J. C. A.).

The law of surface water is largely arbitrary, and not governed by satisfactory principles. See 14 HARV. L. REV. 390. In general, a proprietor may improve his land, regardless of the resulting obstruction or diversion of surface water. Bowlsly v. Speer, 31 N. J. Law 351. But this right does not extend to such changes as will cast the water upon adjoining land in an artificial stream. Field v. West Orange, 36 N. J. Eq. 118; Bates v. Westborough, 151 Mass. 174. The action in surface water cases is usually for damage to land; but the same rules should apply to the discharge of water upon a highway, and if through a violation of these rules the highway is made dangerous to travellers, an action should lie for personal injuries resulting. The principal case seems to be on debatable ground between the two rules above noted; hence the court was divided. The minority supported a literal enforcement of the restricting rule. The majority, however, recognizing both rules, seem inclined to apply the principle of reasonable user in a doubtful case. In another jurisdiction reasonableness has been made the test for all cases. See Willitts v. Chicago, etc., Ry. Co., 88 Ia. 281. The application of such a docrine to the law of surface waters would be desirable; but reasonable user involves a question of fact, and the court, if ready to adopt that test should have left the question to a jury.

SALES DELIVERY — PASSING of Title as against THIRD PERSONS.- A mortgagor, in part discharge of the mortgage debt, sent a flock of sheep to a place agreed upon for delivery. A large number of the sheep having become separated from the

flock on the journey, delivery was made of the remainder to the mortgagee's vendee, who paid the mortgagee for the number actually received. The mortgagee at once instituted search for the missing sheep. Before they were found by him, but after the delivery of the main flock, they were attached by a creditor of the mortgagor. There was no fraud imputed as to any part of the transaction. Held, that the mortgagee is entitled as against the creditor. Kinney & Co. v. First, etc., Bank, 67 Pac Rep. 471 (Wy.).

This result must be reached upon one of two wholly independent grounds not properly distinguished by the court. Delivery of part of the flock to the sub-vendee must be held a good delivery of the remainder, or else delivery must be held unessential as against the attaching creditor. If delivery is essential it is generally conceded that delivery of part as of the whole satisfies the requirement. Hobbs v. Carr, 127 Mass. 532. But in the principal case the partial delivery was not accepted as constructively a delivery of the whole. In so far, therefore, as the court relies upon a delivery the case seems unsound. The result may, however, be validly reached upon the other view considered by the court, that delivery will not be required where a vendee has used due diligence in acquiring possession. This view is supported by recognized authority. Meade v. Smith, 16 Conn. 346; Walden v. Murdock, 23 Cal. 540. It is opposed, however, to authority of perhaps equal weight. Lanfear v. Sumner, 17 Mass. 110. The result of the decision, thus considered, seems to be in effect to place Wyoming among the jurisdictions that follow the doctrine of Meade v. Smith, supra. See also State, etc., v. Hellman, 20 Mo. App. 304; but cf. Morgan v. Taylor, 32 Tex. 363.

TORTS RES JUDICATA DAMAGES TO PERSON AND PROPERTY FROM ONE WRONGFUL ACT. The plaintiff's wagon collided with a gravel-heap negligently left by the defendant. The plaintiff began one action for damages to his vehicle and another for personal damages. In the former action he was successful. Held, that he may notwithstanding recover in the second action. Reilly v. Sicilian Asphalt Pav ing Co., 170 N. Y. 40.

Public policy requires that one cause of action be not twice sued on. 2 BLACK, JUDGMENTS, § 725. Therefore no recovery may be had for later accruing damages. Fetter v. Beal, 1 Ld. Raym. 339. Nor can two suits be brought for one wrongful act injuring two similar rights of the plaintiff. Knowlton v. New York, etc., R. R. Co., 147 Mass. 606; cf. Missouri Pac. Ry. Co. v. Scammon, 41 Kan. 521. When, as in the principal case, one wrongful act damages person and property, although two dissimilar rights are injured, probably in most jurisdictions recovery for both injuries may be had in a single action. Cf. Howe v. Peckham, 10 Barb. (N. Y.) 656. If a single action suffices, the reasons of expediency preventing two suits for damages of one kind ought ordinarily, to prevent two suits when the damages are of different kinds. King v. Chicago, etc. Ry. Co., So Minn. 83; contra, Brunsden v. Humphrey, 14 Q. B. D. 141; cf. Doran v. Cohen, 147 Mass. 342. Yet because a claim for personal damages is commonly not assignable, while one for damages to property is, and because the statutes of limitations for the claims may differ, it is sometimes convenient to keep the claims separate. See 15 HARV. L. REV. 229. In such cases, if necessary, two actions might properly be allowed; but this should be only for special reasons, which do not seem to have been present in the principal case.

TRUSTS CONSTRUCTIVE TRUSTS CONVEYANCE OF LAND ON GRANTEE'S PROMISE TO PAY MONEY TO THIRD PERSON. One J., being in his last illness and desiring to distribute his property, two months before his death conveyed certain land to his wife, the defendant, on her express oral promise to pay a specified sum to his grandchild, the plaintiff. The defendant had no other property. Held, that equity will declare the defendant a trustee ex maleficio and compel her to turn over the promised sum to the plaintiff. Ahrens v. Jones, 169 N. Y. 555

Owing to the unfortunate limitation in New York of the sole beneficiary doctrine held in most of the states, the plaintiff could not recover on the contract. Durnherr v. Rau, 135 N. Y. 219. The court, wishing to work out the plaintiff's rights, relied on the rule established in the somewhat analogous cases of wills. A devisee of land on an oral trust, unenforceable under the Statute of Frauds, is held a constructive trustee for the intended beneficiary. Trustees of Amherst College v. Ritch, 151 N. Y. 282. In the principal case, however, the grantor apparently did not intend to create a trust. The defendant incurred a contractual obligation unconnected with her ownership of the land. Moreover, the principle relied on has not been generally ex

tended to cover conveyances inter vivos. Campbell v. Brown, 129 Mass. 23; but see Goldsmith v. Goldsmith, 145 N. Y. 313; Rochefoucauld v. Boustead, [1897] 1 Ch. 296. If, however, the defendant, when she obtained the deed, intended not to perform, she by fraud prevented the plaintiff from acquiring property and unjustly enriched herself, and equity, though not constituting the defendant a trustee, might perhaps give specific reparation for the tort. If the defendant took the conveyance in good faith and later changed her intention, it is difficult to see any remedy for the plaintiff consistent with the New York sole beneficiary doctrine.

TRUSTS

- EQUITABLE ATTACHMENT OF TRUSTEES' RIGHT OF EXONERATION Default of one Trustee. Three trustees jointly carried on a business, and in the legitimate conduct thereof incurred certain debts. One of the trustees proved a defaulter, but the other two had clear accounts. The creditors demand the right to come against the trust fund for the amount of their claims, by applying to the payment of their claims the right of exoneration of the non-defaulting trustees. Held, that they may do so. In re Frith, [1902] 1 Ch. 342.

For whatever debts the trustees incur in the legitimate course of business, they have a right not only to indemnify themselves from the trust fund, but even to draw on it directly to meet such claims. Gosborne v. Charter Oak Life Ins. Co., 142 U. S. 326; Dowse v. Gorton, [1891] A. C. 190. This right, as an existing asset, the creditors of the business may reach in equity. See Ex parte Garland, 10 Ves. 110. But their right is no greater than that of their debtor, so where there is but a single trustee and he defaults, since his right is gone, there is no asset which the creditor can reach. In re Johnson, 15 Ch. D. 548. In the principal case, however, the default of one trustee did not affect the right of the two non-defaulting trustees to exoneration. Although it might be said that their ultimate loss could be only their share of the debt, since they could get contribution from the defaulter, still the debt being joint, they could be forced originally to pay it all. To meet this liability they would be entitled to draw upon the trust fund. It seems entirely in accord with the general principle then, that the creditors should get the benefit of this right.

TRUSTS LIABILITY OF Trustee DealING WITH THE Res.

A trustee kept the trust funds in a separate account at a London bank. As he lived in the country, his solicitors had the pass-book and check-book, and when payments were to be made on account of the trust estate, sent checks for signature to the trustee with explanatory letters. A clerk of the solicitors, by a forged telegram and letter purporting to come from them, induced the trustee to sign certain checks drawn to bearer, with the proceeds of which the clerk absconded. Held, that the trustee is not liable to the beneficiary for this sum. Re Smith, 46 Sol. J. 358 (Eng., Ch. D.).

If it can be deduced from the facts that the trustee delegated to agents the duty of managing the trust estate, the trustee would be liable for any unlawful dealing by those agents or their servants. See Re Speight, 22 Ch. D. 727, 756; Learoyd v. Whiteley, 12 App. Cas. 727, 733. The principal case may, however, be criticised on a broader ground. In the management of a trust estate the trustee ordinarily need use only such care as a reasonably prudent man would use in the management of his own property. Learoyd v. Whiteley, supra. This principle is subject to limitations. It applies very generally to acts done in respect to the custody, conversion, or investment of trust property. See Speight v. Gaunt, 9 App. Cas. 1. When, however, the trustee undertakes to pay out from the trust fund to the cestui or to creditors, he is held to a stricter accountability. Bostock v. Floyer, L. R. 1 Eq. 26; Rowland v. Witherden, 3 Mac. & G. 568. Thus, a trustee has been held liable where, deceived by a forgery, he has paid money to the wrong person. Eaves v. Hickson, 30 Beav. 136; Cutler v. Boyd, 60 L. T. N. s. 859. It is difficult to distinguish these cases from the principal case, and a decision against the trustee here would seem to accord better with the general principles governing the liability of those who have charge of the property of others and undertake to deal with it.

TRUSTS TRUST VOID UNDER STATUTE OF FRAUDS TRUST RESULTING FROM PAYMENT OF CONSIDERATION. M purchased land, causing the legal title to be conveyed to B, though without the latter's knowledge. M intended thereby to benefit X, but no trust valid under the Statute of Frauds was declared. B, upon learning of the conveyance, refused to hold for X and claimed complete rights in the land. M brought a bill against B for conveyance to herself. Held, that B must convey, there being a resulting trust for M. In re Davis, 112 Fed. Rep. 129 (Dist. Ct., Mass.)

The final decision does not seem open to question. Cf. Easterbrooks v. Tillinghast 5 Gray (Mass.) 17. The common error was made, however, of confusing this with the ordinary case where property is conveyed to one person and consideration paid by another. In such cases, a resulting trust is presumed from the supposed intention of the parties, as a resulting use formerly was from a feoffment without consideration. Powell v. Munson, etc., Co., 3 Mason (U. S. Circ. Ct.) 347, 361; White v. Carpenter, 2 Paige Ch. (N. Y.) 217, 238. See Dyer v. Dyer, 2 Cox 92, 93. But this presumption is rebuttable and in the principal case it appeared clearly that no trust for A was originally intended. The case belongs to that class in which the trust is raised entirely from the court's sense of justice, without reference to the intention of the grantor. Cf. Lord North v. Purdon, 2 Ves. Sen. 494. The grounds are the same as those upon which a trust arises in favor of a grantor whose conveyance was procured by fraud. Long v. Fox, 100 Ill. 43. It follows that in jurisdictions where a willing trustee is allowed to carry out a trust insufficiently declared, the rights of the parties in cases like the principal case would not be determined until the trustee indicates his position. Even where failure to observe the distinction would have no important practical results, it should not, in the interests of clear reasoning, be overlooked.

WILLS REVOCATION - PRESUMPTION FROM MUTILATION. — A will presented for probate showed that the signatures of the testatrix and witnesses had been cut off, and then reaffixed with paste. There was no evidence as to who did the cutting, nor when it was done. Held, that these facts raise no presumption for or against the validity of the will. Webster v. Yorty, 62 N. E. Rep. 907 (Ill., Sup. Ct.).

The authorities cited by the court are not exactly in point, holding merely that when an alteration appears in an instrument, it is a question of fact, unaffected by any presumption, whether the change was made before or after execution. Reed v. Kemp, 16 Ill. 445. In the principal case there are two questions: first, whether the cutting was done by the testator, and second, with what intent it was done. On the first question it seems proper to hold that there is no presumption. But if the cutting is found to have been done by the testator, the English courts have presumed an intent to revoke. Bell v. Fothergill, L. R. 2 P. & D. 148. In America, although no case precisely in point has been found, there is a similar presumption in the analogous case of a missing will which, when last known to have been in existence, was in the possession of the testator, and the absence of which cannot be accounted for. Collyer v. Collyer, 110 N. Y. 481. In so far then, as the court says that there can be no presumption at all in the principal case, the ruling seems inaccurate.

WILLS - REVOCATION BY RATIFYING PREVIOUS MUTILATION. — In a contest as to the validity of a will, which had been much mutilated by vermin in the testator's lifetime, it appeared that the testator had considered the mutilation as invalidating the will. Held, that if the testator orally ratified the defacement by the vermin, he thereby revoked the will. Cutler v. Cutler, 40 S. E. Rep. 689 (N. C.).

In general, the statutes regulating wills provide that a revocation may be effected by certains forms of mutilation by the testator, or by another at his direction and in his presence, provided there is the requisite intent. Having established definite requirements, these statutes impliedly exclude all others. Runkel v. Gates, 11 Ind. 95. The precise point of the principal case seems never before to have been decided. Nevertheless, it has been thought that by adopting the loss or destruction of his will, a testator might revoke it. See Steele v. Price, 5 B. Mon. (Ky.) 58; UNDERHILL, WILLS, 308; but see contra, Mills v. Millward, 15 P. D. 20. On the other hand, the destruction of a will by the testator's direction has been held nugatory because not done in his presence. Dower v. Seeds, 28 W. Va. 113. It will occasionally be unfortunate if a testator may not orally ratify the mutilation or destruction of his will; yet such ratification does not fulfil the requirements of the statutes, that the necessary intention concur with the revoking act, and that the destruction be in the testator's presence. The adequate protection of testamentary dispositions of property seems to demand a strict construction of the statutes. A contrary decision in the principal case, therefore, would seem more in harmony with the objects of such legislation.

BOOKS AND PERIODICALS.

CRIMINAL RESPONSIBILITY OF INSANE DRUNKARDS. It has long been familiar law that mere intoxication is not a defence to a criminal charge; and that certain forms of insanity are defences. I HAWK., P. C., c. I. §§ 1, 6. How far insanity caused by intoxication will excuse has not always been equally well settled. Permanent insanity so caused has been invariably held a valid excuse. I HALE, P. C., 32. So also has delirium tremens. Reg. v. Davis, 14 Cox, C. C., 563; People v. Rogers, 18 N. Y. 9. As to the extent to which temporary insanity caused by drunkenness negatives culpability, an instructive discussion is found in a late English periodical. Drunkenness and Crime, by R. W. Lee, 27 L. Mag. & Rev. 144 (Feb., 1902). The author professes to record a change in the English law. He asserts that formerly temporary insanity resulting from intoxication was not a defence under the English law, but that it now is a defence and rightly so. Pertinent dicta are cited which lend color to such a suggestion, but in actual decision he finds no early case holding that temporary insanity is not an excuse and no modern case holding that temporary insanity, aside from delirium tremens, is an excuse. Cf. Rennie's Case, 1 Lew. 76, and Reg. v. Davis, supra. The conclusion, then, that the law has undergone a change on the point seems somewhat hasty.

In support of the general proposition that temporary insanity should be a defence, the author cites only cases of delirium tremens. Even if this disease can be regarded as a temporary insanity, as seems not impossible, his position is certainly too broad and undiscriminating. It would be interesting to see with what consistency he would apply his doctrine to the case where insanity is an immediate concomitant of intoxication, as it is said to be in some abnormal subjects, either because of some injury or because of peculiar nervous susceptibility, and where therefore the insanity is just as probable a consequence as the drunkenness itself. See 2 TAYL., MED. JUR., 4th ed., 596; 3 TWENT. CENT. PRAC. MED., II, 12. His position seems still more doubtful when it is remembered that from a pathological standpoint mere intoxication and some forms of insanity are largely identical and that the line separating drunkenness and temporary insanity caused by drunkenness is exceedingly vague. See Kerr, INEBRIETY, 3d ed., 15 et seq.

The author's statement finds little support in America. In this country, temporary insanity resulting immediately from intoxication - leaving delirium tremens aside is said to be no defence. State v. Hundley, 46 Mo. 414. It is true that delirium tremens has not failed of excusing in any well-considered case. And yet as an original matter it would be hard to see why some victims even of this disease should not be punished, more especially when the attack of the disease is not the first. The English courts recognize delirium tremens as a defence on the ground that it is a secondary and not a primary consequence of drinking. Reg. v. Davis, supra. Some American courts regard it as a settled insanity, or what Lord Hale termed a "fixed frenzy," and dispose of it on that ground. People v. Rogers, supra. Others allege that it supervenes only upon a period of abstinence, and so find no difficulty in excusing. Kelley v. State, 31 Tex. Cr. Rep. 216. But these reasons seem inadequate, especially the last; for the notion that delirium tremens is caused only by cutting off the drunkard's supply of liquor was long since questioned. 3 TWENT. CENT. PRAC. MED., 13; cf. I WHART. & ST. MED. JUR., § 203. Only in those instances, then, where delirium tremens can fairly be called a remote consequence of drinking, as where it follows a period of abstinence, should it be a defence; otherwise it should not. If insanity follows immediately upon the drunken state, the mere fact that it assumes the form of delirium tremens rather than some other form can make no difference in principle and should not excuse.