ble to person injured by stumbling over it.-Robert v. Powell, N. Y., 61 N. E. Rep. 699.

161. OFFICERS-Changing Boundary Lines as Affecting Title to Officer.-Alteration of district boundary lines will not deprive a county commissioner then holding office of his right thereto, though by the change of boundary line his residence is without the boundary lines of the district from which he was elected.-State v. Haverly, Neb., 87 N. W. Rep. 959.

162. OFFICERS-Proper Mode of Ouster by Quo Warranto.-Unsuccessful contestee in possession of the office of clerk of the circuit court, held entitled to an injunction restraining contestant from forcibly interfering with his possession or assuming the functions of the office without proceeding by quo warranto.Rhodes v. Driver, Ark., 65 S. W. Rep. 106.

163. PARTITION-Parties Holding Liens Not Necessary Parties.-Creditors having liens on the interests of some the tenants in common of a tract of land are not necessary parties to a suit for its partition; but, where the land is sold, they may intervene and assert their liens against the share of their debtor in the proceeds.-East Coast Cedar Co. v. People's Bank, U. S. C. C. of App., Fourth Circuit, 111 Fed. Rep. 446.

164. PARTNERSHIP Corporation as a Partner.Where several creditors of an insolvent formed a partnership to purchase the insolvent's stock and dispose of it, that one of them is a corporation held not to warrant dismissal of a bill filed by one of the partners for an accounting.-Kelley v. Biddle, Mass., 61 N. E. Rep. 821.

165. PARTNERSHIP - Failure to Perform Partnership Duties.-Action lies by one party to a partnership contract against the other party for its breach by rea. son of defendant's failure to perform his partnership duties.-Tevis v. Carter, Ky., 65 S. W. Rep. 17.

166. PATENTS-Defense to Action in Royalty.-Under a written contract for royalty for improvements on a patent, defendant is not estopped from alleging its rescission or denying any breach thereof as alleged.Ralya v. Atkins, Ind., 61 N. E. Rep. 726.

167. PAYMENT-Crediting Payments.-Where plaintiff received from defendants an order payable to them, which was accepted by the drawees on a condition which never happened, and nothing was ever collected on it, defendants were not entitled to have the amount of the order credited on the debt.-Trimble v. Lewis, Ky., 65 S. W. Rep. 117.

168. PENALTIES-Criminal Acts Punishable by Penalties. Where a statute forbids or commands certain acts, its violation constitutes a public offense, punishable as such by a criminal prosecution in the courts, notwithstanding the punishment imposed by such statute is denominated a "penalty."-United States v. Nash, U. S. D. C., W. D. Ky., 111 Fed. Rep. 525.

169. PLEADING Demurrer Because of Immaterial Matter. Where paragraphs of an answer are good as general denials, the addition of immaterial matter will not render them demurrable.-Ralya v. Atkins, Ind., 61 N. E. Rep. 726.

173. PRISONS-Transferring Control of Prisons to Board of Freeholders.-Such parts of P. L. 1857, p. 40, P. L. 1887, p. 42, and P. L. 1894, pp. 378, 534, as provide for the transfer of the county jails and custody of pris oners from the sheriff to the board of chosen freeholders, are unconstitutional and void.-Virtue v. Board of Freeholders of Essex County, N. J., 50 Atl. Rep. 360. 174. PROCESS-Issuance of Summons.-Where action is brought against nominal defendant in one county, summons cannot be properly issued to party in another county.-Goldstein v. Fred Krug Brewing Co., Neb., 87 N. W. Rep. 958.

175. QUO WARRANTO-Right of Private Citizen to Question Right of Public Officer.-Where the members of a municipal board of excise commissioners were chosen by election, instead of being appointed by the court, as required by statute, a private citizen might question the right of the members to their office by quo warranto.-Ham v. Bedell, N. J., 50 Atl. Rep. 364.

176. RAILROADS-Alteration of Grade Crossing.-Under St. 1899, ch. 428, a railway company held not entitled to damages for alteration of grade crossing, by carrying the highway over the railroad by overhead bridge, as to land covered by location of railroad and the layout of the highway.-Boston & A. R. Co. v. City of Worcester, Mass., 61 N. E. Rep. 806.

177. RECEIVERS-Power of Appointment.-A judge of the district court has power to appoint a receiver.Morris v. Linton, Neb., 87 N. W. Rep. 958.

178. RECEIVERS-Retaining Fees on Turning Over Funds to Trustee in Bankruptcy.-A state court, in ordering a receiver appointed therein to turn over the funds to a trustee in bankruptcy appointed under the federal bankruptcy act, will direct him to retain his fees and expenses therefrom.-Mauran v. Crown Carpet Lining Co., R. I., 50 Atl. Rep. 387.

179. SALES-Failure of Title.-On failure of title to goods sold, a buyer need not bring proceedings for breach of warranty, but will be allowed a deduction on his purchase price notes secured by chattel mort. gage. Higbie v. Rogers, N. J., 50 Atl. Rep. 366.

180. SCHOOLS AND SCHOOL DISTRICTS-Discrimination Between City and Country Schools.-P. L. 1900, p. 192, and P. L. 1901, p. 222, providing a different method of government of schools in municipalities which are divided into wards from those not so divided, are unconstitutional.-Board of Education of Mayor, etc., of City of Jersey City v. Lewis, N. J., 50 Atl. Rep. 346.

181. SCHOOL AND SCHOOL DISTRICTS - Refusing to Permit Teacher to Teach.-One who has contracted to teach a district school but is not permitted to teach, may sue the township for breach of the contract without first presenting his claim to the board of audit.Oil School Tp., Perry County, v. Marting, Ind., 61 N. E. Rep. 740.

182. SEAMEN Insubordination Because of Intoxication. A mate, who obtained liquor from the steward through connivance, after its sale to him had been forbidden by the master, and owing to his intoxication, failed to promptly obey an order, was guilty of insubordination which gave legal cause for his discharge. The Bertha, U. S. D. C., D. Wash., 111 Fed. Rep. 550.

183. SHERIFFS AND CONSTABLES-Indemnity Bond Where Title is Disputed.-A sheriff who has levied on property, the title to which is claimed by a third party, may demand an indemnity bond before proceeding to sell, if he honestly believes the claim to be well founded.-Robey v. State, Md., 50 Atl. Rep. 411.

184. SHIPPING-Criminial Liabitity for Operating Gasoline Launch.-It is a criminial offense, punishable by indictment under the statutes of the United States, to operate a gasoline launch of over 15 tons burden in the carrying of passengers or freight for hire without a licensed engineer.- United States v. Nash, U. S. D. C., W. D. Ky., 111 Fed. Rep. Rep. 525.

185. STATES-State Papers as Evidence.-An original

paper filed in the office of the secretary of state cannot be taken into another state for use as evidence.-Delaware Surety Co. v. Layton, Del., 50 Atl. Rep. 378.

186. STATUTES - Proper Construction. Where one construction of a statute leaves a portion thereof meaningless, and another construction gives the entire statute an intelligible meaning, the latter will be adopted.-Western Travelers' Acc. Assn. v. Taylor, Neb., 87 N. W. Rep. 950.

167. STATUTES-Repealing a Repealing Act.-Where an attempt is made by an unconstitutional act to repeal a repealing act, such attempt leaves the first repealing act in force.-Virtue v. Board of Freeholders of Essex County, N. J., 50 Atl. Rep. 360.

188. TAXATION- Assessment of Land on Widow of Decedent.-Widow, residing with minor children on land owned by decedent, held not to be "in possession thereof," within Pub. St. ch. 11, § 13, and an assessment of the land to her was accordingly invalid.-Kerslake v. Cummings, Mass., 61 N. E. Rep. 760.

189. TAXATION-Exemptions of Railroad Company.Exemption from taxation for 20 years, given a rail. road company in 1882, must, under state constitution, providing for taxation of property of corporations, be deemed subject to the power of the legislature to alter, amend, or repeal.-Gulf & §. I. R. Co. v. Hewes, U. S. S. C., 22 Sup. Ct. Rep. 26.

190. TAXATION-Ice Cut to be Sold Out of State.-Ice cut by a foreign corporation with the intention of selling it outside of the state held subject to taxation. -John Hancock Ice Co. v. Rose, N. J., 50 Atl. Rep. 364.

191. TAXATION-Immunity Does Not Pass by Subroga. tion.-Subrogation by statute of one corporation to the privileges of a former corporation does not include immunity from taxation.-Gulf & S. 1. R. Co. v. Hewes, U. S. S. C., 22 Sup. Ct. Rep. 26.

192. TAXATION Payment of Taxes by Owner to Holder of Tax Title.-Payment of taxes by owner of land to holder of tax title held not a prerequisite to defendant's liability for rents and profits.-Heffern v. Hack, Ohio, 61 N. E. Rep. 703.

193. TAXATION-Tax Deed Prima Facie Evidence of Title.-A deed by the state of land forfeited to it for non-payment of taxes is prima facie evidence of valid title in the grantee.-Thornton v. St. Louis Refrigera. tor & Wooden Gutter Co., Ark., 65 S. W. Rep. 113.

194. TELEGRAPHS AND TELEPHONES Order of Re. moval of Poles Without a Hearing. Where ordinance directs poles placed in highway without consent of authorities to be removed, the attempt of the town committee to remove the poles without notice and without a hearing held illegal.- Delaware & A. Tel. Co. v. Committee of Pensauken Tp., Camden County, N. J., 50 Atl. Rep. 452.

195. TENANCY IN COMMON-Purchasing Land on Fore closure.-A tenant in common in possession could not acquire title to the entire tract by purchasing the land in proceedings foreclosing a mortgage given by him and his wife, who was the former owner. - Ladd v. Kuhn, Ind., 61 N. E. Rep. 747.

196. TRESPASS-Damages for Cutting Timber. - The measure of damages for the taking of timber by a trespasser is the value of wood in its converted condition. -Brown v. Pope, Tex., 65 S. W. Rep. 42.

197. TRESPASs-Damages for Unlawfully Cutting Tim. ber.-Defendants, who unlawfully cut and removed timber from public lands, but believing in good faith that they had the lawful right to cut the same, although negligent, are liable only for its value as it stood in the trees.-United States v. Eccles, U. S. C. C., D. Utah, 111 Fed. Rep. 490.

198. TRIAL-Order of Argument.-Where the burden of proof is on plaintiff, he is entitled to the conclud ing argument to the jury.-Barker Cedar Co. v. Rob. erts, Ky., 65 S. W. Rep. 123.

199. TRUSTS - Compensation of Trustees Guilty of Negligence.-Trustees who have been grossly negli

gent in the discharge of their duties, and who have failed to keep an account, are not entitled to full com missions.-Ward v. Shire, Ky., 65 S. W. Rep. 8.

200. TRUSTS-Expense of Change of Investment.-The expenses of a suit for the change of investment of a trust fund equitably apportioned between the income and the fund, where the change was for the benefit of both.-Rhode Island Hospital Trust Co. v. Waterman, R. I., 50 Atl. Rep. 389.

201. VENDOR AND PURCHASER-Fraudulent Represen tations. Where vendee of land alleged fraud in rep. resentations as to an incumbrance, held not error to allow a witness to testify as to what vendor had told was the amount of the incumbrance. - Adcock v. Creighton, Tex., 65 S. W. Rep. 42.

202. VENDOR AND PURCHASER-Recovery of Payments after Rescission.-Where a vendee, who has no right to rescind, refuses to perform a contract, he cannot re cover money already paid.-Steinbach v. Pettingill, N J., 50 Atl. Rep. 443.

203. WARRANTIES-Contract to Use Diligence.-A con tract to use due diligence in introducing and selling goods is not a warranty that they will be purchased generally, but is satisfied if they are brought to public attention and an effort made to sell them.-Leber v. Grosvenor, Mass., 61 N. E. Rep. 759.

204. WATERS AND WATER COURSES-Drainage of Surface Water.-Where a railroad company, in efforts to drain its right of way,collects the surface water there. from and from lands lying above the right of way, and discharges it in greater volume than before on land below the right of way,it is responsible for the damage resulting from such increased flow.-New York P. & N. R. Co. v. Jones, Md., 50 Atl. Rep. 423.

205. WEAPONS-County Judge as a Peace Officer.Under Code Cr. Proc. arts 42, 108, 110, 132, and Const. art. 4, § 15, a county judge is a peace officer, and as such is excluded from the operation of the law against carrying pistols.-Jones v. State, Tex., 65 S. W. Rep.

92.

206. WILLS-Death of One of Several Railway Legatees Before Testator. - Where one of the residuary legatees in a will dies before the testator, his share does not go to the other residuary legatees, but the testator dies intestate in respect thereto.-Canfield v. Canfield, N. J., 50 Atl. Rep. 471.

207. WILLS.-Executor as Devisee.-Where a father left a will devising to his eight children all his land, including a tract which he had conveyed to a son, the son, who was an executor, having accepted its provisions, cannot deny that he holds in trust for the other children their share of the land conveyed to him. Bennett v. Bennett, Ky., 65 S. W. Rep. 12.

208. WILLS-Rule in Shelley's Case.-Where a testator devised land to his daughter "and her children," and to his son "and his children," the word "children" was used in the sense of "heirs," and the children of the daughter and son took no interest.—Childers v. Logan, Ky., 65 S. W. Rep. 124.

209. WITNESSES-Impeachment.-A witness may not be used to impeach another witness when no predicate has been laid for impeachment.-Cauthern v. State, Tex., 65 S. W. Rep. 96.

210. WITNESSES- Impeachment.- A witness cannot be impeached where there has been a mere failure in his testimony.-Knight v. State, Tex., 65 S. W. Rep. 88. 211. WITNESSES-Impeachment.- Accused, offering himself as witness, may be asked whether he has ever been convicted of crime.-State v. Henson, N. J., 50 Atl. Rep. 468.

212. WORK AND LABOR-Breach of Contract to Fur nish Work.-In an action for breach of a contract to furnish work to plaintiff, held, that the contract was not rescinded by a letter from plaintiff, stating that he would try to get other work and claiming damages.Speirs v. Union Drop Forge Co., Mass., 61 N. E. Rep

825.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 28, 1902

Unfortunately, the recent conspicuous lack of harmony among the members of the Supreme Court of the United States shows no apparent sign of abatement. In a decision handed down on January 6, 1902 (Tucker v. Alexandroff, 22 Sup. Ct. Rep. 196), the court divides five to four on a very interesting and important question of international law. In this case a member of the Russian naval service, sent to the United States as one of a force ordered to take possession and serve as the crew of a protected cruiser built in this country for the Russian government, deserted before the crew was organized as such and without ever setting foot upon the vessel. The court, speaking through Justice Brown, held that he was a deserter from a Russian ship of war, within the meaning of the treaty of 1832 with Russia, authorizing the arrest and surrender of deserters from ships of war of that country, although such cruiser had not yet been commissioned as a member of the Russian navy. The question involved in this decision becomes important at this time because of the fact that foreign nations are coming to the sound conclusion that America is the proper place to build ships of war. No doubt our war with Spain was a striking advertisement of our ability in this direction. However, that may be, the fact is that ships of war of many and various nations are being constructed in American ship yards. On the completion of a vessel it becomes incumbent upon the foreign government for whom the ship is being built, to send over a crew to take her away. Under such circumstances no true American, even with all the modesty that is characteristic of our race, can deny that quite often it may happen that members of such crews, as they touch our shores, becoming enamored of our country, will be constrained to throw off the shackles of old world militarism and cast in their lot with us. This was the identical experience of Alexandroff, the petitioner in this case.

It appears that Alexandroff entered the Russian naval service as a conscript, in 1896, at the age of seventeen, and was assigned to the duties of an assistant physician. Some time in October, 1899, an officer and a detail

of fifty-three men, among whom was Alexandroff, were sent from Russia to Philadelphia to take possession of and man The Variag, then under construction by the firm of Cramp & Sons, in that city. The Variag was still upon the stocks when the men arrived in Philadelphia. She was, however, launched in October or November, 1899, and at the time Alexandroff deserted was laying in the stream still under construction, not yet having been accepted by the Russian government. Alexandroff left Philadelphia without leave April 20, 1899, went to New York, and there renounced his allegiance to the Emperor of Russia, declaring his intention of becoming a citizen of the United States. He was subsequently arrested uponthe written request of the Russian viceconsul, and on June 1, 1900, was committed upon a mittimus stating that he had been charged with desertion from the imperial Russian cruiser Variag, upon the complaint of the captain, in accordance with the terms of the treaty between the United States and Russia.

It is perfectly clear that in the absence of a treaty our courts carnot be called upon to reclaim deserters from either the army or the navy of a foreign prince. In The Exchange, 7 Cranch, 116, decided by Chief Justice Marshall and recognized as authority not only in this country but also all over the civilized world, it was held that The Exchange being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country. In his argument on this question Justice Marshall laid down three exceptions to the exclusive sovereignty of a state within its own territory: 1st. The exemption from arrest or detention of a foreign sovereign entering the territory of a nation with the license of its sovereign. 2d. The immunity which all civilized nations allow to foreign ministers. 3d. The cession

allowing the troops of a foreign prince to pass through the territory.

The question in this case was therefore whether The Variag came within the purview of this decision or within the provisions of the treaty of 1832 with Russia authorizing the arrest and surrender of deserters from ships of war, although the vessel had not yet been fully completed nor commissioned as a member of the Russian navy. The minority, speaking through Justice Gray, say that they find no precedent, either in our own decisions or in the books of international law, for extending the exemption to an uncompleted ship, or to sailors who have never been on board of her, although intended to become part of her crew when she shall have been completed.

The majority of the court recognized this principle but affirmed that our treaty with Russia for the return of deserters from ships of war being operative upon both of the signatory powers, and intended for their mutual protection, should be interpreted, in a spirit of uberrima fides, and in a manner to carry out its manifest purpose. They hold that The Variag, though not completed or commissioned, was a Russian ship of war and therefore clearly within the provisions of the treaty. In reply to this contention Justice Gray makes this strong argument: "The Variag in her existing condition was not a Russian ship of war exempt from the jurisdiction of the United States and subject to the exclusive jurisdiction of her own country. The Russian government had never accepted or taken possession of the ship, and, by the terms of the contract under which she was building, still had the right to reject her. So long as they had that right no body of men could be considered as actually part of her crew, whatever they might have been after her acceptance. The evident intent of the treaty is to afford a remedy for the common case of sailors deserting their ship, on her coming into port, at the risk of leaving her with no sufficient crew to continue her voyage; and not to the case of a ship which has never been completed, or equipped for sea, or to persons collected together on shore for an indefinite period, doing no naval duty, though intended ultimately to become part of her crew."

MUNICIPAL CORPORATIONS LIABILITY FOR NEGLIGENCE OF CONTRACTOR IN EXCAVATING OR REPAIRING STREETS AND SIDEWALKS.-Much unnecessary litigation is indulged in by many citizens in attempting to hold a municipality liable for injuries received upon the highway. The city is not an insurer of the lives and safety of the public against all defects in the highway. The law imposes upon the city the duty of keeping its ways in a condition reasonably safe for public travel. Necessarily there must be times when they cannot be in good condition,-as, for instance, while repairs are being made.- and at such times travelers are put upon their guard as to obvious dangers. Outside of these limitations, however, the city's liability is clear. Thus, in the recent case of Beattie v. City of Detroit, 88 N. W. Rep. 71, the Supreme Court of Michigan held that where a paving contract provided that the work should be done so as to interrupt as little as practicable the free use of the street by the public, and that no portion of the street should be wholly obstructed without permission of the board of public works, under whose direct supervision the work was done, and temporary plank bridges were made by the contractor over excavations at various street crossings, the city was liable for injuries resulting from the negligent construction of one of such bridges. In this case the interesting question is presented,-whether a city can absolve itself from negligence by turning the highway over to a contractor. On this point the court says:

"A city cannot, by merely contracting with somebody that he will keep the street in a condition reasonably safe (whether the contract specifies the method or not), relieve itself from the statutory liability, and impose it upon another. Thus a contractor may promise to keep a trench fenced, or signal lamps in it at night, and do neither. One injured in consequence is not without remedy against the city, for the statutory responsibility rests there. Monje v. City of Grand Rapids, 122 Mich. 645, 81 N. W. Rep. 574; Baker v. Same, 111 Mich. 447, 69 N. W. Rep. 740; Dill. Mun. Corp. § 1027, and note."

The following are the latest authorities: Where a city had permitted plumbers to dig ditches in its streets, it was not error, in an action for an injury resulting to plaintiff from his falling into such ditch, to refuse to instruct that recovery against the city could not be had because it had not constructed the ditch. Foy v. City of Winston, 126 N. Car. 381, 35 S. E. Rep. 609. Where a city, under its charter, is responsible for constructing sewers and their connections, it is liable for injury to one falling into a trench for a sewer connection negligently left uncovered, though the work was done by a licensed plumber. Monje v. City of Grand Rapids, 122 Mich. 645, 81 N. W. Rep. 574. Rep. 574. Were, however, a town authorized a telephone company to erect poles in the streets.

no liability attaches for injuries to a pedestrian caused by falling into a hole which the company had dug inside the curbing of the pavement of a sidewalk, and had negligently left uncovered an hour and a half before the accident, where the town had no actual notice of the company's negligence. Town of Franklin v. Houser, 104 Tenn. 1. It is necessary, it will be observed, that the city have actual or constructive notice of defect. But if it have such notice,the liability of the city is fixed, even if the excavation or obstruction was unauthorized. Thus, although a city is under no obligations to construct a crossing over an alley connecting the walks of the streets, yet if it allowed persons to place loose boards there, which, by reason of their becoming warped and shifted about, renders it dangerous for persons having occasion to cross such alley, it will be liable to the same extent that it would be, had it undertaken to construct a crossing and allowed it to become out of repair. City of Springfield v. Tomlinson, 79 Ill. App. 399.

SHIPS AND SHIPPING-EFFECT OF STATUTES REQUIRING EMPLOYMENT OF LICENSED PILOTS ON LIABILITY FOR PILOT'S NEGLIGENCE-COMPULSORY PILOTAGE.-It is by no means settled what effect statutes requiring the employment of licensed pilots have upon the liability of the owner for the negligence of such pilots. In a recent case where the defendant's vessel, while under the command of a New York licensed pilot and wholly through his fault, collided with a pier owned by the plaintiff, the court held that the defendant was not liable in an action at common law, upon the ground that he was not personally at fault and that, as the employment of the pilot was compelled by the New York statute, the defendant could not be made responsible as principal. Homer Ramsdell Co. v. La Compagnie Generale Transatlantique, 182 U. S. 406. This result in an action at law seems obviously correct. Yet the injured party may also have alternative remedies in admiralty, and since his rights are then governed by the principles of maritime law, it is by no means necessary that the same result should be reached. A libel in rem is based upon the distinct conception that the right to redress it is against the ship itself; in other words, that the ship is the offending person, regardless of the fact under whose control it was at the time of the collision. As culpability may thus be fixed upon the ship it has consequently been held in the United States that a libel in rem will be sustained under such circumstances. The China, 7 Wall. 53. In England, after many conflicting decisions, the opposite conclusion has been reached. The Halley, L. R. 2 P. C. 193. Although perhaps a trifle harsh the American rule is a logical outcome of the principles of maritime law; it is furthermore supported by the law of Continental Europe. 5 Lyon-Caen Et Renualt, Droit Commercial, §§ 190, 190 bis. In the remaining alternative open

to one injured under such circumstances-a libel in personam against the owner-the peculiar doctrine which allows recovery where the ship is libeled in rem can have no application, and the same result should be reached as in an action at law. See Curtis, Merchant Seamen, 196.

As to what constitutes compulsory employment, however, the provisions of the statutes vary so greatly that no uniform rule can be deduced from the cases. Thus a New York statute, providing that any unlicensed person piloting a vessel to or from the port of New York shall be deemed guilty of a misdemeanor punishable by fine or imprisonment, has been held to make the pilotage compulsory. The China, supra. The Massachusetts statute, on the other hand, provides for a forfeiture of the whole pilotage fees if a tender of services is refused, and that of Louisiana inflicts a penalty of one-half the fees; both statutes have been regarded in dicta as not compulsory. Martin v. Hilton, 9 Met. (Mass.) 371; The Merrimac, 14 Wall. 199. The same result was reached under a Pennsylvania statute by which a master is "required and obliged" to employ a pilot or forfeit one-half the fees to a charitable organization. Flanigen v. Washington Ins. Co., 7 Pa. St. 306. In England the forfeiture of the fees is generally held to make the pilotage Yet compulsory. The Maria, 1 W. Rob. 95. curiously enough a penalty of double the fees has been interpreted in the opposite. AttorneyGeneral v. Case, 3 Price, 302. A vague distinction has been attempted in these cases between the forfeiture of pilotage fees and a "penalty." Story, Agency (2d Ed.), § 456a. It is impossible from such a conflict to determine a satisfactory rule; it seems, however, that American courts do not consider a provision as obligatory unless its breach is punishable as a misdemeanor. Certainly the interpretation of the Pennsylvania statute is an indication of such an intention.Harvard Law Review.

MONOPOLIES CONTRACTS RESTRAINING TRADE IN AN ENTIRE STATE.-In Union Strawboard Co. v. Bonfield, decided in the Supreme Court of Illinois, in December, 1901, (61 N. E. Rep. 1038), it was held that a covenant by the seller of a manufacturing business not to engage for the period of twenty-five years in the manufacture or sale of the articles manufactured anywhere is void, as against public policy, being in general restraint of trade.

It was further held that the covenant requirement not to engage in the same business in the state is void, as being in general restraint of trade and against the public policy of the state, giving its citizens the privilege of pursuing their lawful occupations at some place within its borders.

As to the correctness of the decision of the Illinois court upon the first point, there probably would be no controversy. The leading case on this subject in New York is Diamond Match Co. v. Roeber, 106 N. Y. 473. In that case the