recorded, nor did B take possession. Within four months of bankruptcy proceedings, A gave B possession of the goods under the bill of sale, being at that time, as B had reasonable ground to believe, insolvent. Held, that the transaction does not constitute a preference. Christ v. Zehner, 61 Atl. Rep. 822 (Pa.).

For a discussion of the principles involved, see 18 HARV. L. REV. 606.

BANKRUPTCY PREFERENCES - SECURED CREDITORS. - A contract for a sewer, let in September, 1903, by a municipal corporation, provided for withholding ten per cent of the monthly payments, and gave the corporation's engineer authority to order direct payment by the city to firms supplying machinery to the contractor, if there was reasonable cause to believe he was unduly delaying payment. In October, 1904, the contractor was adjudicated bankrupt on his own petition. The engineer thereafter directed payment to a machinery firm. Held, that the power conferred on the engineer is not annulled by the contractor's bankruptcy, and the trustee in bankruptcy cannot prevent payment by the city. In re Wilkinson, [1905] 2 K. B. 713.

The English Bankruptcy Act makes voidable payments or transfers of property by the bankrupt during three months prior to bankruptcy proceedings, if a preference was intended. 46 & 47 Vict. c. 52, § 48. Had the contract in the

present case been made during the statutory period, it could have been avoided by the trustee, if the intent to prefer existed. Or if the consideration for the contract had been given by the bankrupt within the three months, there would also have been a preference except in jurisdictions where a transfer is valid if contracted for before the statutory period. See Marvin v. Bushnell, 36 Conn. 353. But in the present case, before this period began, the bankrupt had performed his part of the contract, and sufficient funds had been retained by the corporation from which to make payment. One creditor got a priority after bankruptcy, but it was not caused by an act of the bankrupt done within the statutory period by himself or through an agent. He transferred his property before the time when the trustee can set his transactions aside on the ground of preference. There was no fraud, for sufficient consideration was received.

BILLS AND Notes - CHECKS RIGHT OF SET-OFF BY DRAWER OF DISHONORED CERTIFIED CHECK. — The drawer of a check had it certified before delivery to the payee. Before it was presented, the bank stopped payment and the check was dishonored. The drawer recovered the check from the payee upon paying its face value. Held, that the payee is the bank's creditor at the time of insolvency, and the drawer, who becomes a creditor afterwards, cannot set off the amount of the check against his indebtedness to the bank. One justice dissented. Schlesinger v. Kurzrok, 94 N. Y. Supp. 442.

A bank, by certifying a check, puts itself in the position of the acceptor of a bill of exchange and becomes primarily liable to the holder. Merchants' Bank v. State Bank, 10 Wall. (U. S.) 604; N. Y. Neg. Inst. Law, § 323. But the position of the court is not sound in considering the drawer in the present case as a mere outsider acquiring a claim against the bank after its insolvency. The drawer of a check who has it certified before delivery to the payee, is still liable to the holder. Minot v. Russ, 156 Mass. 458. He is not liable on the original debt, however, for the payee surrenders his direct claim against the drawer for a direct claim against the bank and a secondary claim against the drawer. The cases show that the drawer's liability is the same as that of the drawer of a bill of exchange. He is surety for the acceptor and liable only after the acceptor defaults. A surety can set off his payments made in behalf of the principal against his indebtedness to the principal, even though such payments are made after the latter's insolvency. Cosgrove v. McKasy, 65 Minn. 426. The minority opinion, therefore, seems to be correct.

BILLS AND NOTES - DEFENSES - NOTICE TO INDOrser. The holder of a promissory note, excused under the Negotiable Instruments Law from presentment for payment because of the death of the maker and the non-appointment of a personal representative, brought an action against the indorser. Held,

that the holder is not also excused from giving notice of dishonor to the indorser. Reed v. Spear, 107 N. Y. App. Div. 144.

At common law when no place of payment was specified, before the indorser could be charged, presentment had to be made to the personal representative of a deceased maker, or if none had been appointed, at the maker's house. Price v. Young, 1 Nott & M. (S. C.) 438. In no case did the death of the maker dispense with the necessity for notice of dishonor to the indorser. Oriental Bank v. Blake, 22 Pick. (Mass.) 2c6. By the Negotiable Instruments Law, adopted in New York, presentment otherwise than to the deceased maker's personal representative is excused. L. 1897, c. 612, §§ 136, 142. But when presentment is thus excused the instrument is regarded as dishonored by nonpayment just as though payment had been refused. Ibid. § 143. So although there is no express provision covering this point, yet as the common law rule that notice of dishonor must be given the indorser is embodied in the Negotiable Instruments Law, §§ 160, 186, with certain exceptions not applicable here, the present decision is undoubtedly a sound construction of that law.

BILLS OF PEACE BILL BY ASSIGNEE OF A CORPORATION FOR UNPAID STOCK SUBSCRIPTIONS. - Held, that the assignee of an insolvent corporation may join its stockholders in a single bill in equity to recover the unpaid balances of their stock subscriptions, although no accounting is necessary since it will require all unpaid subscriptions to pay the debts. Cook v. Carpenter, Appeal of Lipper, 61 Atl. Rep. 799 (Pa.).

Although it is commonly said that equity will take jurisdiction to prevent a multiplicity of suits, the cases are not harmonious as to the precise limits of the doctrine. Most authorities require that there must appear at least a question common to all the actions. Hale v. Allinson, 188 U. S. 56. And such seems to be the law in Pennsylvania. Young's Appeal, 3 Penny. (Pa.) 463; Proprietors' School Fund v. Heermans, 1 Kulp (Pa.) 469; but cf. Cumberland Valley Rd. Co.'s Appeal, 62 Pa. 218. Nor is it sufficient that the separate rights arose in connection with the same general transaction. The Lehigh Valley R. R. Co. v. McFarlan, 30 N. J. Eq. 135, 31 N. J. Eq. 730. Thus, bills have been allowed by a creditor or receiver against stockholders to determine such common questions as the necessity for a call, or the amount of assessment when stockholders' liability is limited. See Pfohl v. Simpson, 74 N. Y. 137. In the rare instances in which pecuniary relief has been granted in this form of action in equity, the various claims appear to have been for liquidated amounts. See The German, etc., Ins. Co. v. Van Cleave, 191 Ill. 410. Since in the principal case the obligations are upon separate contracts and no common controversy of law or fact is disclosed, the equity of the bill must be in avoiding many suits for liquidated claims. But it seems that the legal remedies for such claims are not yet considered inadequate. Cf. Hale v. Allinson, supra, 102 Fed. Rep. 790, 793.

CEMETERIES LIFE TENANT'S RIGHT TO GRANT BURIAL PERMITS. - The owner of a tract of land, on which he had conducted a private cemetery, deeded it to trustees for the use of his wife for life. Held, that the life tenant has the right to continue granting burial permits, which confer a permanent right to the use of the soil for the purposes of graves. Hill v. Moore, 33 Wash. L. Rep. 549 (D. C., Sup. Ct.). See NOTES, p. 205.

CHARITIES - Bequests - TO UNINCORPORated Societies. A testator made a bequest to an unincorporated Spiritualist society "to be used by said society in such manner as it may deem most expedient for the development and advancement of spiritualism at Freeville, Tompkins County, N. Y." Held, that the gift fails. Fralick v. Lyford, 107 N. Y. App. Div. 543. NOTES, p. 202.

See

CONSTITUTIONAL LAW OBLIGATION OF CONTRACTS — INTERPRETATION BY SUPREME COURT. Under a constitutional provision which invested the legislature with full power to correct abuses by public service companies, the legislature passed a law empowering municipalities to fix a maximum water

rate, with the provision that this should in no case interfere with existing contracts. The Supreme Court of Florida decided that the constitutional power conferred upon the legislature could be exercised only in its entirety and that the exception regarding existing contracts was void. Held, that this interpretation of the state constitution was a possible one and that the United States Supreme Court would not interfere. The Tampa Water Works Co. v. The City of Tampa, U. S. Sup. Ct., Nov. 13, 1905.

The only question before the Supreme Court was whether the interpretation which the Florida court put upon the constitutional clause in deciding that it meant that the legislature must exercise its full power, if any, was so unreasonable that it should be reversed. Ordinarily, when a legislative body is expressly invested with full power, the part which it refrains from exercising is inoperative. M'Intire v. Wood, 7 Cranch (U. S.) 504. Hence, on a fair interpretation of the constitutional clause, the conclusion of the Florida court was wrong and, as a matter of strict logic, should have been overruled. But, in view of the very numerous instances in which the Supreme Court has refused to reverse questionable decisions of state courts on the ground that such decisions represent a possible view of the contention, the Supreme Court reluctantly declined to overrule the state decision. This case, therefore, illustrates the length to which the Supreme Court will go in sustaining a decision of a state court.

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CONSTITUTIONAL LAW - SEPARATION OF POWERS DELEGATION OF LEGISLATIVE POWER. A statute provided that fish commissioners might prohibit any discharge of sawdust into a stream if they determined that it occasioned injury to edible fish. Held, that this is a delegation of legislative power, but is not unconstitutional. Commonwealth v. Sisson, 33 Banker & Tradesman 2216 (Mass., Sup. Ct., Oct. 17, 1905). See NOTES, p. 203.

CONTRACTS CONSTRUCTION - IMPLIED PROMISE TO FURNISH REASONABLE AMOUNT OF WORK. Without notice to its employees, the defendant company shut down. The plaintiff, one of the employees thereby thrown out of work, brought suit against the company, claiming damages under his contract for piece work. Held, that the plaintiff can recover, since the contract of employment contained an implied promise to furnish a reasonable amount of work. Devonald v. Rosser, 93 L. T. R. 274 (Eng., K. B., June 6, 1905). For a consideration of the principles involved, see 19 HARV. L. Rev. 133. CONTRACTS OF AFFREIGHTMENT FREIGHT JUSTIFIABLE ABANDONMENT OF SHIP. The owners of a vessel contracted to carry a cargo of lumber from Pensacola to Montevideo, freight payable on delivery at the port of destination. The ship encountered heavy gales and was justifiably abandoned. The derelict was brought by salvors to Boston, where both ship-owner and cargo-owner applied for possession of the cargo, which, however, was later sold under an order of court upon allegation that it was diminishing in value. The ship-owner filed a libel for freight on the ground that he was ready and willing to go on with the contract, but had been prevented. Held, that he can not recover. The Eliza Lines, U. S. Sup. Ct., Oct. 30, 1905. See NOTES, p. 200.

CORPORATIONS CORPORATE POWERS AND THEIR EXERCISE. POWER OF WATER COMPANY TO MORTGAGE FRANCHISE IN NATURE OF EASEMENT. A water company, having a franchise to maintain pipes in the streets of a city to supply the city with water, mortgaged all its property and franchises. Held, that the franchise constitutes an easement which may be mortgaged and which cannot be taken away from the mortgagee by a decree against the company annulling the franchise, entered in a suit begun after the mortgage was given and in which the mortgagee was not joined. Farmers' Loan & Trust Co. V. Meridian Waterworks Co., 139 Fed. Rep. 661 (Circ. Ct., S. D., Miss.).

Power to mortgage its property is, generally, an implied power of a corporation. Aurora Agricultural Society v. Paddock, 80 Ill. 263. Such power is, however, by the weight of authority, denied to corporations undertaking a

public duty, on the ground that the corporation might thereby disable itself from performing that duty. Commonwealth v. Smith, 10 Allen (Mass.) 448. By the weight of authority, also, the franchises of a corporation (other than the franchise to be a corporation, which is clearly inalienable) may not be mortgaged without legislative consent. Carpenter v. Black Hawk Gold Mining Co., 65 N. Y. 43; Memphis R. R. Co. v. Commissioners, 112 U. S. 609. The case discussed illustrates two tendencies: first, to restrict the old rule forbidding public corporations to mortgage, such restrictions being either by statute or by the action of courts in confining the rule to corporations given the power of eminent domain or exclusive rights; and secondly, the tendency to hold franchises of this nature transferable. See Hunt & Bro. v. Memphis Gaslight Co., 95 Tenn. 136; New Orleans, etc., R. R. Co. v. Delamore, 114 U. S. 501. The doctrine restricting the alienation of corporate property and franchises had its birth in the days when corporations were commonly created by special act and when they might truly be said to have a personal duty to the state in respect to the privileges granted to them specially. As to-day the creation of corporations by special legislation is exceptional, the reason for the old rule has passed away, and the rule itself may well be abandoned.

DEATH BY WRONGFUL ACT STATUTORY LIABILITY RIGHTS of NonRESIDENT ALIENS. A statute authorized an administrator to maintain an action" for the benefit of the decedent's husband or wife, and next of kin," to recover for pecuniary injuries resulting to such persons from a wrongful act causing the decedent's death, against a defendant who "would have been liable to an action in favor of the decedent . . . if death had not ensued." The plaintiff sued the defendant, whose negligence caused the death of the plaintiff's intestate, in behalf of the widow and next of kin, who were non-resident aliens. Held, that the plaintiff can recover. Alfson v. The Bush Co., Lim., 182 N. Y. 393.

The legislation of most states, including New York, creating liability for death by wrongful act, copies, in its principal features, the English Act of Lord Campbell. The effect of that statute is to create a new right of action, which vests in the personal representative and is not part of the decedent's estate. Pym v. Great Northern Ry. Co., 4 B. & S. 396. The class of beneficiaries is, therefore, determined solely by the interpretation of the statute. In holding that a non-resident alien is included, the present case follows an earlier decision of a lower court. Tanas v. Municipal Gas Co., 88 N. Y. App. Div. 251. The English authorities upon this question are in conflict. See Adams v. British, etc., Steamship Co., [1898] 2 Q. B. D. 430; Davidsson v. Hill, [1901] 2 K. B. D. 606. Most American courts permit non-resident aliens to recover under similar statutes. Mulhall v. Fallon, 176 Mass. 266; contra, Deni v. Pennsylvania R. Co., 181 Pa. 525. The language of these statutes seems to define the class of beneficiaries independently of residence or nationality. The contrary decisions rest upon a doctrine that statutes of a state are presumed, in the absence of express language, to apply only to persons within its territorial jurisdiction. See McMillan v. Spider Lake, etc., Co., 115 Wis. 332, 337. While this rule of construction may be applicable to statutes imposing burdens, because of the inability of a state to fasten obligations upon aliens outside its territorial jurisdiction, no such reason exists for a similar interpretation of statutes conferring benefits.

DIVORCE ALIMONY PAYMENT AFTER DEATH OF HUSBAND. The plaintiff was granted a divorce from her husband with alimony during her life, secured by a mortgage executed by her husband and the defendant. The plaintiff sued to recover alimony accruing since her husband's death. Held, that she cannot recover. Wilson v. Hinman, 182 N. Y. 408.

For an adverse criticism of the holding of the Appellate Division which is here reversed, see 18 HARV. L. REV. 541.

MARRIAGE OF INFANT.

DOMICILE An infant whose parents were domiciled in Victoria was married in a foreign jurisdiction, where there was evidence tending to show his intent to settle. Upon divorce proceedings

instituted in Victoria it became important to determine his domicile. Held, that although the respondent has been married, still, as he is an infant, he is incapable of changing his domicile. Robertson v. Robertson, [1905] Vict. L. R. 546.

The

The court seems to lay down as an absolute rule that no infant can acquire a new domicile. It is hard to see why on principle this should be true in the case of an emancipated infant, who is entirely separated from his parents. It is clear that the settlement of an emancipated minor does not follow that of his father. St. Michael's, Norwich v. St. Matthew's, Ipswich, 2 Stra. 831; Lowell v. Newport, 66 Me. 78. On the contrary, such a minor may acquire a new settlement of his own. Lubec v. Eastport, 3 Me. 220. statutes governing the acquisition of a settlement require a residence, which is usually construed as "domicile." Abington v. North Bridgewater, 40 Mass. 170. Therefore this would furnish authority for allowing an emancipated minor to acquire a new domicile of his own. It can hardly be said, however, that marriage alone works the emancipation of a minor. But in the ordinary case, where a minor after marrying establishes a home of his own, supporting himself, he does become emancipated. Sherburne v. Hartland, 37 Vt. 528; see also Rex v. Wittoncum Twambrookes, 3 T. R. 355. Though the point is disputed, it seems that the same would be true in the case of a minor married without his parents' consent. Commonwealth v. Graham, 157 Mass. 73. Thus the minor might by his marriage be enabled to acquire a new domicile. Cf. Succession of Robert, 2 Rob. (La.) 427.

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EQUITY INJUNCTION - RIPARIAN RIGHTS. A corporation proposed to divert water from the Passaic River, at a point above the navigable portion, into New York to sell. The state of New Jersey, through the Attorney General, sought an injunction. Held, that the state, by virtue of owning the bed of the navigable portion of the Passaic River, is entitled, as a riparian proprietor, to an injunction to restrain the defendant from taking the water outside the state. McCarter, Atty. Gen. v. Hudson Water, etc., Co., 61 Atl. Rep. 710 (N. J., Ch.).

The doctrine is a novel one, that the state has the rights of a "riparian proprietor" through ownership of the bed of the navigable portion of a stream. The words, "riparian rights," suggest that ownership of the bank is a necessary element. And this view is supported by the English rule that these rights do not depend on ownership of the soil under the stream. Lyon v. Fishmongers Co., i App. Cas. 662. Riparian rights and restrictions, moreover, seem to have arisen from the benefit conferred by the stream upon the riparian tract. So a riparian owner may make a reasonable use of the water, such right of user being an incident to the soil, and passing therewith. Union M. and M. Co. v. Ferris, 2 Saw. (U. S. C. C.) 176. He is entitled to the natural flow, save for reasonable use by proprietors above. Tyler v. Wilkinson, 4 Mas. (U. S. C. C.) 397. But he may not assign his rights in gross. Stockport Water Co. v. Potter, 3 H. & C. 300. Nor may he use the water beyond the riparian tract. Moulton v. Newburyport Water Co., 137 Mass. 163. In the case at hand apparently none of the usual riparian benefits are conferred upon the stream-bed; and so the reason for extending riparian rights to the owner thereof fails. The decision, however, may be supported on the ground of the state's right to object to improper interference with a navigable stream, even though such interference took place beyond the limits of the state, or above the navigable portion. Cf. Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. (U. S.) 518; United States v. Rio Grande Irrigation Co., 174 U. S. 690; Missouri v. Illinois and Chicago District, 180 U. S. 208.

FALSE IMPRISONMENT CIVIL LIABILITY - LIABILITY OF JUDICIAL OFfiCER. The defendant, a justice of the peace, issued a warrant returnable before himself, instead of before a justice in the town where the offense was committed, as required by statute. In spite of objection, he tried and convicted the plaintiff. This conviction was afterwards reversed. Held, that the warrant did not confer jurisdiction over the plaintiff, and that the defendant is liable in