broad doctrine of prescription and the reasons of public policy supporting it are as easily applicable to the acquisition of any incorporeal right of use, convenience, or value to the public, as to the acquisition of any purely private rights. Yet it must be granted that although the presumed dedication (based often on estoppel) of cemeteries and springs is not infrequent,13 cases are exceedingly rare in either country where the public has gained a prescriptive right in the nature of a jus spatiandi. It seems likely that the common law courts will continue to show a disinclination to extend such acquisition beyond the established cases of highways, parks and squares. 2 TOLLING OF STATUTE OF LIMITATION BY ONE OF SEVERAL OBLIGORS. The doctrine that acknowledgment or part payment extends a debt or revives one barred, is a judicial engrafting upon the original Statute of Limitations of James I. It is now generally recognized that such payment or acknowledgment operates not as a waiver of the defense of the statute, continuing the cause of action, but as a fresh promise. Either view presents difficulty as to consideration, but the case must be regarded as a lingering example of moral consideration supporting a promise.1 If, then, the theory is that of a new contract, there must exist circumstances from which an unequivocal promise can be inferred. Such a promise, therefore, can be made only by the party to be charged or his authorized agent. Yet there has existed a great conflict, now partly allayed by statutes, as to the effect of payment by one of several persons having a community of interest. Thus, Lord Mansfield, in a leading case now overruled by statute, held that payment by one joint obligor, for purposes of the statute, is payment by all; while the United States Supreme Court has reached an opposite result, concurred in by a majority of the states. There is a similar diversity of views as to the effect of part payment by a partner after dissolution of the partnership. Here, too, regarding the dissolved partners merely as joint obligors, the majority of the states deny one authority to revive or extend a debt against others. Some, however, follow the early English authority; still others sanction only an extension, not a revival, while a few make notice to the creditors a determining factor. The prevailing rule, which has recently been adopted in several states by statute, seems sound. Whether one person has power to bind another by his promise, express or implied, is a question of fact in each instance, but from the mere relationship of joint obligors no such agency can be inferred. It would seem that when the question arises through payments by one of several testamentary beneficiaries the same rule must guide, and part payment by one should affect only his own interest or that of those for whom he is authorized to act. Yet the English Chancery Division has recently held, in a case arising under a statute making a decedent's real estate assets in equity for simple contract debts, that part payment by a tenant for life of part of the estate bound persons who were both remaindermen and 18 Boyce v. Kalbaugh, 47 Md. 334; Larkin v. Ryan, 25 Ky. Law Rep. 613, 2 Payne v. Slate, 39 Barb. (N. Y.) 634, 638. 3 Whitcomb 7. Whiting, 2 Doug. 652. 4 Bell v. Morrison, 1 Pet. (U. S.) 351. 6 devisees of other lands. In re Chant, [1905] 2 Ch. 225. By previous adjudication it has been decided in England that the life tenant, since it is his duty to keep down the interest on the estate, by virtue of his tenancy, has implied authority to bind those in remainder. No such identity of interest, with the resulting implication of authority, seems to be recognized in this country. But in going beyond this step and holding that payment by the life tenant keeps alive the testator's debt against the estate of specific devisees of other land the court followed what are in fact dicta in an earlier case which have been much criticised in later English decisions. Not even in England can one devisee, as such, deprive another of his statutory privilege. In this country payment by a widow of mortgaged premises has been held not to remove the bar as against the heir. Again, payment by the heir or grantee of the mortgagor as to part of mortgaged premises does not arrest the operation of the statute in favor of the grantee of another part.10 Though American cases of this nature have been rare, they show a desirable uniformity with the cases of joint obligation, and a tendency to restrict the anomalous doctrine of part payment to its proper, narrow limits. 8 RECENT CASES. Accord AND SATISFACTION — VALIDITY EFFECT OF STATUTE OF FRAUDS. In consideration that the defendant marry him, the plaintiff orally promised to consider a debt which the former owed him as paid and satisfied. After marriage the plaintiff brought action on the obligation and, to the defendant's plea of accord and satisfaction, objected that as the agreement was oral, it was invalid under the Statute of Frauds making contracts in consideration of marriage unenforceable. Held, that the plea is good. Weld v. Weld, 81 Pac. Rep. 183 (Kan.). There are two possible views of the nature of an accord and satisfaction. The first is illustrated by the present case, which regards it as an executed agreement whereby the original obligation is utterly extinguished. Lavery v. Turley, 6 H. & N. 239. The other theory holds that it is a contract executory as to the obligee's promise. He has agreed never to sue on his original obligation which is considered as still existing; and this promise is enforced by courts of law as a defense to the original liability. This view is suggested by the rule that upon the rescission of the accord and satisfaction the original obligation may be sued upon. Heavenrich v. Steele, 57 Minn. 221. However, as this rule is supported upon the ground that the extinguished obligation is revived by the rescission, it furnishes but slight basis for the second theory. Furthermore, as the plea of accord and satisfaction was recognized before a contract never to sue or indeed before any simple contract was known to the law, the theory that in allowing this defense the court is merely enforcing the plaintiff's promise not to sue, is clearly untenable. Y. B. 21 & 22 Edw. I. 586 (Rolls series). 5 Roddam v. Morley, 1 De G. & J. 1; In re Hollingshead, 37 Ch. D. 651. 6 Ætna Life Insurance Co. v. McNeely, 166 Ill. 540. 7 Roddam v. Morley, supra. For a consideration of the English authorities, see 49 Sol. J. 563, 682. II2. 8 See Dickenson v. Teasdale, I De G. J. & S. 52; Cooper v. Cresswell, L. R. 2 Ch. 9 Nickell v. Leary, 91 N. Y. Supp. 287; Ætna Life Insurance Co. v. McNeely, supra. 10 Murdock v. Waterman, 145 N. Y. 55; Mack v. Anderson, 165 N. Y. 529. ADVERSE POSSESSION LIFE TENANT UNDER VOID DEVISE HOLDING AGAINST RemainderMAN. - A married woman, who was legally without testamentary capacity, devised certain land to her husband for life with remainder to the plaintiff. The husband entered at his wife's death and held possession for twenty-one years, devising the property upon his death to the defendant. Held, that the defendant has title. In re Anderson, [1905] 2 Ch. 70. Where a testator without title devises land to A for life with remainder to B, and A occupies for twenty years, it has been held that the true owner is barred, but that A is estopped to deny B's right to the remainder. Board v. Board, L. R. 9 Q. B. 48; Dalton v. Fitzgerald, [1897] 2 Ch. 86. The present decision, which distinguishes between a valid will by a testator without title, and a void will by one having title, disregards the intention to claim only a life estate. See Paine v. Jones, L. R. 18 Eq. 320, 326; but cf. Kernaghan v. M‘Nally, 12 Ir. Ch. 89. As it is the intention which determines whether the possession is adverse, so it would seem that the intention should determine the quantum of the estate. Cf. Bond v. O'Gara, 177 Mass. 139. It would appear better not to invoke the doctrine of estoppel, but to regard the entry of the claimant as in the nature of a tortious feoffment, effecting a disseisin of the true owner and vesting in the disseisor a tortious life estate, with a tortious remainder in the person whom he recognizes as remainderman. The owner, having been thus disseised, is barred after the statutory period, and the tortious estate becomes lawful. Under this doctrine the rights of the remainderman would be independent of any instrument purporting to convey title. AGENCY - AGENT'S LIABILITY TO THIRD PERSONS — CONTRACTUAL RESPONSIBILITY WHEN PRINCIPAL IS FICTITIOUS. - The defendant, as agent for a non-existing corporation, took a lease under seal from the plaintiff. Held, that the agent is liable on the lease for the rent. Schenkberg v. Treadwell, 94 N. Y. Supp. 418. On strict theory this per curiam opinion seems difficult to support. By the weight of authority, when an unauthorized agent makes a contract for a principal actually existing, the agent is not liable on the contract. Lewis v. Nicholson, 18 Q. B. 503; Noe v. Gregory, 7 Daly (N. Y.) 283. When the principal is fictitious, however, the agent is often held liable on the contract, on the ground that otherwise it would be wholly inoperative. Kelner v. Baxter, L. R. 2 C. P. 174. Yet in the real essence of the situation, there is little difference between a principal who gives no authority and one who does not exist. See Bartlett v. Tucker, 104 Mass. 336. But here the instrument is under seal; and however loosely a simple contract may be treated, the law is strict that only those named as parties to a sealed instrument can sue or be sued upon it. Henricus v. Englert, 137 N. Y. 488. There seems to be no urgent necessity for relaxing the rule in the case at hand, as an adequate remedy lies for deceit, or for breach of an implied warranty of authority. Polhill v. Walter, 3 B. & Ad. 114; Collen v. Wright, 8 E. & B. 647. - BANKRUPTCY PREFERENCES - SURRENDER. - At the suit of a trustee in bankruptcy, a mortgage given by the bankrupt to a creditor who retained it in good faith was adjudged void as a preference. Thereafter the trustee refused to permit proof of the creditor's claim because the latter had not surrendered his preference within the meaning of § 57 g of the Bankruptcy Act, which provides in substance that claims of preferred creditors shall not be allowed unless they surrender their preferences. Held, that proof of the claim be allowed. Keppel v. Tiffin Savings Bank, 25 Sup. Ct. Rep. 443. The lower federal courts have generally held that a creditor who retains his preference until judgment depriving him of it cannot prove his claim since he has not "surrendered" his preference. Re Greth, 112 Fed. Rep. 978. A realization of the hardship of this result, however, induced some courts to suspend judgment for a reasonable time in order to enable a creditor who had acted in good faith to surrender his preference and thus to prove his claim. Zahm v. Fry, Fed. Cas. 18198. In the present case, the court avoided penalizing the creditor by construing the word "surrender" to mean the transfer of a preference after judgment. Undoubtedly the purpose of § 57g is not penal, but is to secure a fair distribution of the debtor's assets. See Pirie v. Chicago, etc., Co., 182 U. S. 438, 449. The interpretation which would effectuate this purpose without doing violence to the expressed intent of the legislature is best. And this consideration certainly goes far to justify the somewhat strained construction resorted to by the court. It is, however, questionable whether this was not a case for legislative action rather than judicial construction. BILLS AND NOTES - NEGOTIABILITY - CERTAINTY IN AMOUNT. In an interest-bearing note it was provided that interest not paid semi-annually should become a part of the principal and itself bear interest. Held, that the amount of the note is not thereby rendered uncertain, nor the negotiability of the note destroyed. Brown v. Vossen, 87 S. W. Rep. 577 (Mo., Kansas City Ct. App.) 66 In order that a note shall be negotiable it must be for a sum certain. Palmer v. Ward, 72 Mass. 340. But this rule has been considerably weakened, and much uncertainty and confusion has arisen from a loose interpretation of the words sum certain." At present the weight of opinion seems to be that a provision for increasing the rate of interest after maturity does not destroy negotiability. Towne v. Rice, 122 Mass. 67. Nor is negotiability impaired by a stipulation for payment of attorneys' fees and costs in case suit is brought to enforce collection. Adams v. Addington, 16 Fed. Rep. 89. But an agreement to pay a sum named "with exchange" is not negotiable. Hughitt v. Johnson, 28 Fed. Rep. 865. The distinction drawn is that the amount of the agreement at maturity depends on the fluctuations of exchange; while in the two former cases the amount is certain if paid at maturity. In the case at hand the amount of the note at maturity clearly depends on a contingency; to call it a sum certain seems a contradiction in terms. CARRIERS DELAY-LIABILITY FOR DELAY CAUSED BY STRIKE. - Held, that where cattle were injured in transportation by delay caused by the interference of strikers, the carrier is not liable if it has exercised reasonable diligence to expedite the shipment. Sterling v. St. Louis, etc., R. R. Co., 86 S. W. Rep. 655 (Tex., Civ. App.). See NOTES, p. 54. CARRIERS - TICKETS - EJECTION. A contract between the parties provided that the appellant should furnish transportation to the appellee, on condition that the contract should be presented to and endorsed by the former's agent. The agent refused to endorse it. In consequence, the appellee was ejected from the train for not paying his fare. Held, that the appellant is liable for the ejectment. Texas, etc., Ry. Co. v. Payne, 87 S. W. Rep. 330 (Tex., Sup. Ct.). Although there is a well defined conflict of authorities, the better opinion seems to be that the carrier is not liable for ejecting a passenger who is without an apparently good ticket, if he refuses to pay his fare. See 9 HARV. L. Rev. 353. This conclusion is reached either upon the basis of reasonable regulations, or by the application of the law of contracts. See 12 HARV. L. REV. 61. The present decision is of interest because a formal written contract is involved instead of a mere ticket, and because the court bases its reasoning on principles of contract law. Yet it seems that in this case, at any rate, the opposite result would be reached by this method. The railroad company has promised to transport the appellée only on condition that the agent endorse the contract. This condition precedent has not happened; hence the company has not broken its promise of transportation. The conclusion is unavoidable that the appellant is liable for its agent's refusal to endorse the contract, but not for the ejectment of appellee. See Frederick v. Marquette, etc., R. R. Co., 37 Mich. 342, 346. CHINESE EXCLUSION ACTS - - EXCLUSION OF CHINAMAN CLAIMING CITIZENSHIP. The Chinese Exclusion Act of 1894, as amended by the Act of 1903, provided that the decision of the appropriate immigration officers excluding an alien should be final unless reversed on appeal to the Secretary of Commerce and Labor. The latter official denied admission to a Chinaman who alleged that he was a native-born citizen of the United States returning after a temporary absence. Held, that the decision is not reviewable by the federal courts. Brewer, Day and Peckham, JJ., dissented. United States v. Ju Toy, 25 Sup. Ct. Rep. 644. The constitutionality of this power of the Secretary of Commerce in cases where the applicant is admittedly an alien, seems to be settled. Nishimura Ekiu v. United States, 142 U. S. 651, 659. It has also been held that an applicant claiming citizenship cannot resort to the federal courts before he has prosecuted an appeal to the Secretary. United States v. Sing Tuck, 194 U. S. 161. It is clear that the constitutional guaranties relating to the trial of criminals have no application, as the inquiry is not a criminal proceeding. Cf. Fong Yue Ting v. United States, 149 Ū. S. 698. A more serious question is whether Congress has not invested executive officials with power properly belonging to the judiciary and contravening the requirement of due process of law. It may be that the power to exclude or expel persons admittedly aliens is political in its nature, and the official's decision in regard to such persons is due process of law. Japanese Immigrant Case, 189 U. S. 86. But if the applicant be in fact a citizen of the United States, he cannot be excluded except as a punishment for crime. See In re Sing Tuck, 126 Fed. Rep. 386, 388; Lee Sing Far v. United States, 94 Fed. Rep. 834, 836. It would seem, therefore, that the determination of his constitutional right of citizenship is a judicial and not an executive function. CONFLICT of Laws PRIORITY AMONG SUCCESSIVE ASSIGNEES IN DIFFERENT JURISDICTIONS. — A, while domiciled in New York, assigned to B his reversionary interest in an estate invested in English trust securities. Later, while in England, A assigned this reversionary interest to the plaintiff, who at once notified the trustees. Afterwards B gave notice of the earlier assignment. Held, that the plaintiff has the priority. Kelly v. Selwyn, [1905] 2 Ch. Rep. 117. The question here involved seems to have arisen for the first time. By New York law, notice to a debtor or to a trustee is not necessary to complete an assignment of a chose in action or of a reversionary_interest in personalty. Muir v. Schenck, 3 Hill (N. Y.) 228; Fortunato v. Patten, 147 N. Y. 277. But in England, a subsequent assignee secures preference if he gives notice first to the debtor or trustee, provided he had no notice of the prior assignment. Dearle v. Hall, 3 Russ. 1; Foster v. Blackstone, 1 Myl. & K. 297. The court admits that the New York assignment was valid in accordance with the general rule that the validity of an assignment of a chose in action is determined by the law of the place of transfer. Alcock v. Smith, [1892] 1 Ch. Rep. 238; May v. Wannemacher, III Mass. 202. But it takes the sound view that in administering an English trust fund, the order in which claimants will be entitled must be regulated by the law of the court administering the fund. Those claiming as assignees, therefore, will have priority according to the order in which they have given notice and thereby have completely constituted themselves cestuis que trust under the English law. CONFLICT OF LAWS - JURISDICTION FOR DIVORCE - Non-Resident DeFENDANT. — An abandoned spouse removed to another state, where he acquired a bona fide domicile, and later instituted divorce proceedings. Substituted service of process was made upon the non-resident defendant in accordance with the laws of the state granting the divorce. Held, that the decree of divorce is entitled to full extra-territorial validity under the "full faith and credit" clause of the Federal Constitution. North v. North, 93 N. Y. Supp. 512. The New York courts regard divorce as a proceeding in personam. People v. Baker, 76 N. Y. 78. They have consistently held that no foreign divorce obtained against a non-resident, non-appearing defendant would have extraterritorial validity, unless the defendant was personally served with process within the jurisdiction of the divorce court. O'Dea v. O'Dea, 101 N. Y. 23. So serious are the objections to this doctrine, that most courts have rejected it as unsound. See 15 HARV. L. Rev. 66; 18 ibid. 215. The rule has been |