issued A died. Held, that his mother is entitled to the benefit. Fink v. Delaware, etc., Society, 57 N. Y. App. Div. 507.

By the New York Code, and by the usual rule, a member of a benefit society may change his beneficiary without the consent of the latter. N. Y. R. S. (1896), vol. 2, p. 1671; Beatty's Appeal, 122 Pa. St. 428. Such a change is of course a novation to which an assent by the association is necessary. Ordinarily the laws of the association or the certificate contain provisions in which an express or implied assent is involved. In the principal case, however, there were no such provisions. Nevertheless, in view of the almost universal practice of such associations, it is fair to imply an assent, since it is a clear advantage to the member, and cannot hurt the society, which would naturally try to make itself as attractive as possible; and in practice such an assent is implied. Masonic Ben. Ass'n v. Bunch, 109 Mo. 560; NIBLACK, ACCID. INS. 412. Consequently the new beneficiary in the principal case is entitled, since, when no method of changing is provided, a letter mailed to the company directing payment to a new beneficiary completes the change. Hirschel v. Clark, 81 Iowa, 200.

INSURANCE STANDARD POLICY- - PROOF OF Loss. The Minnesota standard fire insurance policy stipulates that proof of loss shall be furnished forthwith, but does not expressly say that compliance is necessary to recovery, nor provide for forfeiture on non-compliance. Held, that the insured may recover on furnishing proof of loss at any time within the two years limit. Mason v. St. Paul Ins. Co., 85 N. W. Rep. 13 (Minn.). The most natural construction of such a stipulation is that compliance is a condition precedent to any recovery. Baker v. German Ins. Co., 124 Ind. 490. A provision for forfeiture would compel the insured to furnish proof of a loss too trivial to make it worth while to collect the insurance. In the principal case, it is admitted that the stipulation makes a condition precedent, but it is held that the provision as to time may be disregarded. There is considerable authority for this view. Steele v. German Ins. Co., 93 Mich. 81. The word forthwith," however, has a recognized legal meaning, namely, within a reasonable time. Scammon v. Germania Ins. Co., 101 Ill. 621. It is difficult on principle to justify a disregard of this part of the condition, while effect is given to the rest.

INTERNATIONAL LAW-ACTION BROUGHT BY SOVEREIGN CROSS-LIBEL. Held, that a cross-libel cannot be entertained in answer to a libel filed by the United States for injuries to a government vessel resulting from a collision. Bowker v. U. S., 105 Fed. Rep. 398 (Dist. Ct., N. J.). See NOTES, p. 59.

JUDGMENTS-RES JUDICATA - HABEAS CORPUS PROCEEDINGS. - Held, that the dismissal of a writ of habeas corpus by the federal courts of one circuit does not render the question res judicata so as to preclude its reexamination by the courts of another circuit in subsequent habeas corpus proceedings instituted therein by the same petitioner. Carter v. McClaughry, 105 Fed. Rep. 614 (Circ. Ct., D. Kan.).

The decision that the doctrine of res judicata is not applicable to proceedings in habeas corpus is in accord with the overwhelming weight of authority. In re Snell, 31 Minn. 110. The cases offer no satisfactory explanation of this peculiarity, but the reason seems to be that at common law neither the prisoner in whose behalf the writ was issued nor the petitioner who acted solely for him, was a party to the subsequent proceedings. The issue as to the lawfulness of the detention was not between the prisoner or the petitioner and the keeper, but between the court and the keeper. See 14 HARV. LAW REV. 612. If the keeper satisfied the court, the prisoner was remanded and no appeal was allowed. HURD, HABEAS CORPUS, ch. xi. The petitioner might however set another court in motion, and as the new writ raised the issue between different parties, the doctrine of res judicata could not be invoked. Where, as in the federal courts and in many jurisdictions, the prisoner is by statute allowed an appeal and thus made a party to the proceedings, there seems to be no good reason why the doctrine of res judicata should not be applied. Perry v. McLendon, 62 Ga. 598.

PERSONS SUIT BY INFANT - DECREASED EARNING CAPACITY.— An infant sued through his mother, as guardian, for personal injuries. The mother, a widow, was held to be entitled to his services. Held, that damages may be given for decreased earning capacity before as well as after majority. Chesapeake & O. Ry. Co. v. Davis, 60 S. W. Rep. 14 (Ky.).

There is an apparent analogy between this case and that of damage to the earning capacity of a married woman, for which, by the strict common law, an action lay by the

husband alone, but not by the husband and wife jointly. Barnes v. Hurd, 11 Mass. 59. The case of the infant is distinguishable, however, since it is admitted that the parent can emancipate the child, either generally, or for particular purposes, as by allowing him to receive for himself a part of his earnings. Donegan v. Davis, 66 Ala. 362. Accordingly there seems no difficulty, where the guardian is also the parent, in allowing him to elect to recover damages to the earning capacity of the child during minority for the benefit of the child rather than for himself. Abeles v. Bransfield, 19' Kan. 16. In such a case the parent cannot afterwards, as an individual, recover for loss of services. Baker v. Flint, etc., Ry. Co., 91 Mich. 298. And where he has already recovered for loss of services the reasoning above does not apply, and the damages in question cannot be recovered in the suit brought as guardian. Houston, etc., Ry. Co. v. Miller, 51 Tex. 270. The decision is therefore sound and supported by authority.

PROPERTY-CURTESY NATURE OF THE ESTATE. A married woman, who had issue living, inherited an estate in fee before the modern married women's property acts. Held, that the husband took an immediate life estate in his own right. Dawson v. Edwards, 59 N. E. Rep. 590 (Ill.).

All the authorities agree that a husband gets an indefeasible interest in the lands of his wife when issue is born. During the wife's life he is called tenant by curtesy initiate. But as to the exact nature of this interest there is a conflict. On the one hand it is contended that the husband, after issue born, is seised of a life estate in his own right, and that the interest of the wife is a reversionary one expectant upon the life estate of her husband. Foster v. Marshall, 22 N. H. 491; Shortall v. Hinckley, 31 Ill. 219. On the other hand it is contended that the husband remains jointly seised with the wife during her life. Melvin v. The Proprietors, etc., 16 Pick. 161. The question is one of some nicety, and the law seems to contain no analogy upon which a result can be reached, but the latter of the two views seems more in accord with the ancient conceptions of the common law, upon which the solution must depend. 2 POLL. AND MAIT., HIST. ENG. LAW, 405-418.

PROPERTY LIENS ASSIGNMENT. - A livery stable keeper, having a lien on a horse for board, assigned the claim, together with the horse as security therefor, to the defendant. The owner of the horse brought replevin. Held, that a lien, being a purely personal right, is not assignable, and that the attempted assignment in the present case destroyed the lien and constitutes no defence. Glascock v. Lemp, 59 N. E. Rep. 342 (Ind.). See NOTES, p. 70.

PROPERTY-PUBLIC PONDS

RIGHTS OF LITTORAL OWNERS. Held, that a littoral owner on a public pond may obtain an injunction to restrain the taking of ice, for the purpose of sale, in such quantities as to reduce the natural level. Sanborn v. People's Ice Co., 84 N. W. Rep. 641 (Minn.). See NOTES, p. 68.

The defend

PROPERTY-RECORDING ACTS - Defective ACKNOWLEDGMENT. ant claimed title to land under a deed of trust from A, acknowledged before a notary, who, being attorney for the beneficiary, was disqualified by the law of the state. The plaintiff claimed as judgment creditor on a subsequent execution against A, in a jurisdiction where a creditor is in the position of a purchaser for value. Held, that, the certificate being valid on its face, the record was constructive notice to the plaintiff, and he cannot recover. Southwestern Mfg. Co. v. Hughes, 60 S. W. Rep. 684 (Tex., Civ. App.).

Most registration acts, including that of Texas, require deeds to be properly acknowledged as well as recorded. TEX. R. S. (1895), § 4640. An acknowledgment is void if taken by one in interest, Hammers v. Dole, 61 Ill. 307, and the rule is applied in Texas to an attorney for either party. Sample v. Irwin, 45 Tex. 567. The principal case qualifies that rule where the certificate is valid on its face. To what extent such a certificate shall be conclusive proof of the legality of the acknowledgment is not entirely certain, but the general tendency is to protect one who relies on the certificate. WEBB, RECORD TITLE, §§ 87-89; note, I Am. Dec. 81. In several states however, the certificate is by statute made prima facie evidence only. 1 HILL'S CODE (WASH.) § 1436. To preserve the reliability of the records, public policy certainly makes it important that a recorded instrument shall in general not be impeachable by extrinsic evidence, and the result here reached seems highly desirable. Bank of Benson v. Hove, 45 Minn. 40. Cf. Hitz v. Jenks, 123 U. S. 297.

PROPERTY- WILLS-Devise of a Corpse. The testator left a will urging that the manner, time, and place of his burial should be according to the defendant's wishes and directions. The defendant was in possession claiming under the will, and the widow and daughter of the deceased brought suit to recover the body. Held, that one has no property in a dead body so that he can dispose of it by will, the custody and right of burial belonging, in the absence of statutory provision, to the next of k.n. Enos v. Snyder, 63 Pac. Rep. 170 (Cal., Sup. Ct.). See NOTES, p. 64.

SALES COntracts - STOCKS CARRIED ON MARGINS. Brokers carrying stocks on a margin for a customer, under a contract made in Massachusetts, were adjudicated bankrupts on a voluntary petition. Held, that the customer, without tendering the rest of the purchase money, can prove a claim for the value of the contract at the date of the petition. In re Swift, 105 Fed. Rep. 493 (Dist. Ct., Mass.).

By the prevailing view a broker is pledgee of stocks carried by him on a margin, the customer having legal title therein. JONES, PLEDGES, 495. This view is hardly consistent with the custom of brokers to hypothecate stocks thus held. Lawrence v.

Maxwell, 53 N. Y. 19. The principal case adopts a theory simpler and nearer to busi ness practices, that the broker owns the stocks absolutely, but is under a contractual obligation to deliver on tender of the balance of the price. Weston v. Jordan, 168 Mass. 401. Normally tender fixes the time for delivery, but if it becomes apparent that the stocks will not be delivered, as a tender would be nugatory, performance is immediately due. Cort v. Ambergate, etc., Ry. Co., 17 Q. B. 127. This rule seems to cover the principal case, for as the filing of the petition showed that the brokers would not perform, liability on the contract instantly accrued. Apparently neither the doctrine of anticipatory breach, Roehm v. Horst, 178 U. S. 1, nor the question of the proof of contingent claims was involved.

The defendant guaranteed

SURETYSHIP GUARANTY - NECESSITY OF NOTICE. the payment of rent by the plaintiff's tenant. The plaintiff gave the defendant no notice of the default till long after it occurred, and the defendant had been put in a worse position in consequence. Held, that the facts show no defence to an action on the guaranty. Welch v. Walsh, 59 N. E. Rep. 440 (Mass.). See NOTES, p. 65.

SURETYSHIP STATUTE OF FRAUDS - PROMISE TO PAy the Debt of Another. - The plaintiff made a sale of lumber to X, retaining a lien, and, X being unable to pay, refused to deliver the goods. Thereupon the defendant, who was president of a corporation holding an unrecorded chattel mortgage on the lumber from X, induced the plaintiff to deliver by guaranteeing payment. Held, that the promise need not be in writing, within the Statute of Frauds, as a promise to pay the debt of another. Choate v. Hoogstraat, 105 Fed. Rep. 713 (C. C. A., 7th Cir.).

In general, in both England and America, wherever the promisor bears the relation of guarantor to the debtor, the statute applies. BROWNE, ST. FR., 5th ed., § 193. But there is a class of cases in which the promisor, having an interest in the property which gave rise to the debt, desires to free his interest from the creditor's claim, where it is generally held that the statute does not apply. Williams v. Leper, 3 Burr. 1886; Fish v. Thomas, 5 Gray, 45. Strictly, even these cases come within the statute. The promisor however. having received a benefit from the creditor's reliance on his promise, should be liable in quasi-contract to the extent of the benefit received, by analogy to settled cases. Miller v. Roberts, 169 Mass. 134. Practically, this would in general reach the same result. But in the principal case the corporation, not the promisor, owned the mortgage, and therefore he was benefited only as one of the stockholders, and should be liable, if at all, only to the extent of his benefit. The case, however, is a not unnatural extension of the anomalous rule above referred to.

- INDEMNITY..

TORTS JOINT WRONGDOERS An employee of the plaintiff railroad company recovered against it for injuries due to the dangerous condition of a car received in transit from the defendant railroad, which had negligently failed to inspect the car. The plaintiff had inspected it, but through negligence had failed to discover the defect. Held, that the plaintiff is not entitled to recover over against the other road. Galveston, etc., Rr. Co. v. Nass, 59 S. W. Rep. 870 (Tex., Sup. Ct.).

The rule that there is neither contribution nor indemnity between joint wrongdoers is said not to apply unless the parties knew or must be presumed to have known that they were acting wrongfully. Adamson v. Jarvis, 4 Bing. 66, 73. Neither can the deci sion go on the ground that the defendant company was not the cause of the injury to tle

e.nployee, for by the better view he could have recovered against that company. Pennsylvania R. R. Co. v. Snyder, 55 Oh. St. 342; contra, Glynn v. Central R. R. Co., 175 Mass. 510. The decision however is quite correct, for the judgment recovered by the employee is to be regarded as damage caused to one wrongdoer by the contributing negligence of himself and another. Ordinarily any suit by one against the other would be barred by contributory negligence, but if one later than the other was in such a position that, by the exercise of due care, he could have discovered and avoided the danger, he, as between the two, must bear the whole loss. Nashua, etc., Co. v. Worcester, etc., R. R., 62 N. H. 159. The present decision correctly throws the loss on the party ultimately liable. The cases in which there is a warranty should be distinguished. Boston Woven Hose, etc., Co. v. Kendall, 59 N. E. Rep. 657 (Mass.).

TORTS-LEGAL CAUSE- Plaintiff's ILLEGAL ACT.—The plaintiff's launch was anchored in violation of a treasury regulation forbidding anchorage of vessels within 150 feet of any wharf. The defendant's lighter, in passing, picked up the anchor chain and drew the launch into collision. Held, that the plaintiff cannot recover. Foley v. McKeever, 56 N. Y. App. Div. 517.

If the decision rests on the theory that the plaintiff's own wrongful act was the proximate cause of his injury, it is obviously sound. Apparently however, the ground taken by the majority is that the plaintiff's violation of the law is conclusive against his right to recover, since "except for the chain the damage would not have occurred." Some authority for this proposition is to be found. Bosworth v. Swansey, 10 Met. 363; Gregg v. Wyman, 4 Cush. 322. But the weight of authority is contrary, and the proposition seems unsound in principle. Norris v. Litchfield, 35 N. H. 277; Hamilton v. Goding, 55 Me. 419. Penalties for the violation of statutes are fixed by the state, and courts have no power to increase them by losses of property caused solely by the tortious act of another. Philadelphia, etc., R. R. Co. v. Philadelphia, etc., Towboat Co., 23 How. 209. Nor can the independent public wrong of the plaintiff avail a defendant as an excuse for his own tort. Only where such wrong is a contributing cause and not merely a condition of the injury should the recovery be barred.

TRUSTS-BANKS - COLLECTIONS. - Held, that after the proceeds of a note deposited for collection have been received by the bank, they are held in trust for the depositor, who is a preferred creditor in case of bankruptcy. State v. Bank of Commerce, 85 N. W. Rep. 43 (Neb.).

The case follows a previous Nebraska decision. Capital Nat. Bank v. Coldwater Nat. Bank, 49 Neb. 786. It is held that at the time of the deposit the parties intended the note to be held in trust, and that nothing has occurred subsequently sufficient to alter the trust relation. Nurse v. Satterlee, 81 Iowa, 491. But most of the cases cited in support of the doctrine rest on other circumstances, such as the bank's insolvency at the time of deposit. Cragie v. Hadley, 99 N. Y. 131. The prevalent rule is that the moment a solvent bank receives the proceeds, the relation of trust is changed to that of debtor and creditor. Nonotuck Silk Co. v. Flanders, 87 Wis. 237. This rule, it is submitted, is more in accord with the general understanding of the business community, which expects the money collected to be treated like an ordinary deposit. Marine, etc., Bank v. Fulton, etc., Bank, 2 Wall. 252, 256. Since banks as a rule charge nothing for collecting, they cannot be expected to hold the proceeds separate, as trust funds. Reason and the weight of authority seem opposed to the decision in the principal case.

TRUSTS LIFE TENANT AND REMAINDERMAN - PREMIUM ON BONDS. Held, that where there is nothing in the surrounding circumstances to show a different intention on the part of the creator of a trust, it is the duty of a trustee, who has invested the trust fund in bonds purchased at a premium, to make such deductions from the income payable to the life beneficiary as will make the principal of the trust fund whole when the bonds mature. New York, etc., Co. v. Baker, 165 N. Y. 484; 59 N. E. Rep. 257. The ideal trust investment is one that yields a fair rate of interest to the life beneficiary and secures the corpus intact to the remainderman. The investment of a trust fund in bonds purchased at a premium, and held until maturity, involves the loss of both the premium and the interest upon it. A court sanctioning such investments should apportion the loss fairly between the life beneficiary and the remainderman. Neither should have any advantage at the expense of the other. Cf. Kinmouth v. Brigham, 5 Allen, 270. In losing interest upon the amount paid as premium the life Leneficiary bears his share of the loss, and the premium itself should come out of the

corpus. 34 ALB. L. J. 144; Boyer v. Chauncey, 12 Pa. Super. Ct. 526. The decision, in throwing the entire burden upon the life beneficiary, seems unjust. The doctrine of the case, however, appears to be law in Massachusetts. New England Trust Co. v. Eaton, 140 Mass. 532. Although the point seems never to have been raised, it is 'perhaps arguable that, except in the absence of other safe and remunerative investments, the purchase of bonds at a premium, with the intention of holding until maturity, is not a proper administration of the trust estate.

REVIEWS.

AN EPITOME OF PERSONAL PROPERTY LAW. By W. H. Hastings Kelke, M. A., London: Sweet and Maxwell, Limited. 1901. pp. xv, 144. Mr. Kelke has certainly succeeded in crowding an astonishing amount of law into a very limited space. His work has also the merits of accuracy, due regard for proportion, and clearness of statement. First in order are considered the different kinds of absolute and qualified ownership. Then there is a discussion of the more important kinds of choses in action known to the English law, -negotiable instruments, annuities, insurance policies, debentures, and partnership and company shares. Mr. Kelke sketches briefly the English common law and statutory rules which govern such kinds of property, and brings out clearly the essential attributes of each variety. After touching upon other and less important matters, the book closes with a survey of bankruptcy and administration. The American reader may at first glance think the book rather too much given up to English statutory changes; yet, as a rule, it is not difficult to separate from the whole text the more general common law principles. At any rate, as an admirably suggestive summary of the present state of the English law of personal property, the book ought to prove highly useful.

AN EPITOME OF ROMAN LAW. By W. H. Hastings Kelke, M. A., London: Sweet and Maxwell, Limited. 1901. pp. vii, 268. This little book furnishes us in a very small space with all that is essential for a general understanding of Roman law. In the opening chapter the history of the law is briefly, and, it would appear, accurately, given. A long chapter is then devoted to Family Law, and another to the allied subject of Tutors and Curators. Of course, the larger portion of the book is taken up by the chapters on Jus Rerum, - Property Law, Succession Law, and Contract Law. Delictal obligations are then briefly considered. And the final chapter treats at considerable length the subject of Procedure. Excellent notes explain the technical terms and phrases used, and an appendix gives numerous references to standard authorities on particular topics in the law which would prove useful to students desiring a more extended investigation. It must be confessed that the book is not easy reading owing to its extreme conciseness. One may well question whether conciseness gained by such methods as the entire omission of articles and the systematic abbreviation of ordinary words is entirely without disadvantages. But the book is obviously intended to be used in preparing for examinations, and for this purpose it leaves