much farther to hold a principal who is liable only on the doctrine respondeat superior, and the general rule is that he will not be so held.23 The result should be the same where the principal is a corporation as where the principal is a natural person, but there is diversity of opinion on this proposition, some holding it liable in exemplary damages whenever an agent would be so held,24 others holding it liable only if committed by managing officers of the corporation, as the president or general manager, unless authorized or subsequently ratified by the corporation. 25 New York follows the same rule as to the liability of a corporation that it follows in the case of a natural person,26 and holds that a principal is only liable for the torts of its agents or servants when done by a managing agent, or head of a department in the scope of his employment, or the act was authorized or ratified by the principal. Following the New York precedents, therefore, the principal case would seem rightly decided, for the agent Howland received his knowledge in the scope of his employment, as he was the head of his department, being the chief manuscript reader.

Walter E. Armstrong, '20.

Bills and Notes: Check as assignment of funds in bank.-In McClain v. Torkelson, 174 N. W. (Iowa) 42 (1919), one Torkelson drew checks upon the Forest City National Bank, and against a general checking account, and to an amount not greater than the funds he had on deposit. The Freeborn County State Bank, upon presentation of these checks, paid the same to Torkelson. He was indebted to the plaintiffs, and they garnished the Forest City National Bank. The garnishment process was served after the checks had been paid by the Freeborn bank, and before the checks reached the drawee bank. The court held that the payment of the checks operated to assign the funds Torkelson had in the Forest City National Bank, so that when the garnishment process was served, the last named bank had no money belonging to him.

Before the enactment of the Negotiable Instruments Law there was a conflict of authority as to whether a check operated as a pro tanto assignment, legal or equitable, of the funds of the drawer in the drawee bank. The English," Federal, New York, and the majority of the

3

23 Lake Shore & Mich. So. Ry. Co. v. Prentice, 147 U. S. 101 (1893); Gaetner v Bues, 109 Wis. 165 (1901); contra, Boyer v. Coxen, supra, note 16.

24Ramsden v. Boston & Albany Ry. Co., 104 Mass. 117 (1870); Pullman Palace Car Co. v. Lawrence, 74 Miss. 782 (1897); Kennelly v. Kansas City Ry. Co., 214 S. W. (Mo.) 237 (1919).

25 Denver & Rio Grande Ry. Co. v. Harris, 122 U. S. 597 (1887); Bingam v. Lipman, 40 Ore. 363 (1901); Funk v. Kerbaugh, 222 Pa. 18 (1908).

26Crane v. Bennett, supra, note 2.

27 Rose v. The Imperial Engine Co., 127 App. Div. (N. Y.) 885 (1908), aff'd in 195 N. Y. 515 (1909).

For this conflict see 5 Corpus Juris 920; 921, note 63; 925; 926; 2 Daniel on Negotiable Instruments, sec. 1643; Brannan's Negotiable Instruments Law (2d ed.), 155; Crawford's Annotated Negotiable Instruments Law (4th ed.), 253, 254; Norton on Bills and Notes (4th ed.), 584.

Hopkinson v. Forster, L. R. 19 Eq. 74 (1873).

'Bank of the Republic v. Millard, 10 Wall. (U. S.) 152 (1869); Florence Mining Company v. Brown, 124 U. S. 385 (1888); Fourth Street Bank v. Yardley, 165 U. S. 634 (1896).

'Attorney-General v. Continental Life Insurance Company, 71 N. Y. 325 (1877); Chrzanowska v. Corn Exchange Bank, 172 App. Div. (N. Ÿ.) 958 (1916).

courts held consistently that there was no assignment, while a minority of the courts adhered to the principle that the check did operate as an assignment of the funds of the drawer." In Wasgatt v. First National Bank the court said: "we hold that a check on a bank in which the drawer has funds on deposit subject to check is an assignment of such funds of the drawer to the amount of the check, which assignment is complete as between the drawer and the payee when the check is given, and complete as between the payee or holder and the bank when the check is presented for payment." On the other hand there is the opinion of the United States Supreme Court in Fourth Street Bank v. Yardley, where the court, in holding that a check did not operate as an assignment, said:10 "but for reasons of commercial convenience too well established to need to be stated or defended it has been thoroughly established by this court and in the courts of many of the United States, that a check or bill of exchange drawn on it or him is not an equitable assignment in favor of the payee of the check."

* * *

Section 325 of the New York Negotiable Instruments Law (section 189 of the Uniform Negotiable Instruments Law) reads as follows: "A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check." The principal case held that a similar statute adopted by Iowa," has not changed the rule existing prior to the statute, but operates purely as a protection to the drawee bank. This holding is out of line with the majority of cases in those states in which the Uniform Negotiable Instruments Law is in effect,12 and such a view does not appear to be correct on principle. A check is a mere order for the payment of money, and should not operate as an assignment of any part of the fund to the credit of the drawer until accepted by the drawee bank. Until that time the bank owes no duty to the holder of the check. Wm. E. Vogel, '20.

Carriers: Who is a passenger.-Feldman v. The Chicago Street Railway Co., 124 N. E. (Ill.) 334 (1919), involves the question when the relation of passenger and carrier terminates. The facts were as follows: The defendants operated several lines of street railways in the city of Chicago. The plaintiff boarded a car, paid his fare, and

"See cases, supra, note 1; also under Assignments, Cent. Dig., secs. 85-98; note in 52 L. R. A. (N. S.) 302; Ann. Cases 1915 A, 441.

Goldman v. Murray, 164 Cal. 419 (1912); Findlay v. Corn Exchange National Bank, 166 Ill. App. 57 (1911); Bloom v. Winthrop State Bank, 121 Iowa 101 (1903): Hove v. Stanhope State Bank, 138 Iowa 39 (1908); Boswell v. Citizen's Savings Bank, 123 Ky. 485 (1906).

117 Minn. 9 (1912).

At page 13.

9165 U. S. 634 (1896).

10At page 639-640.

"Supplement Code of Iowa, 1913, secs. 3060-a189.

12 Kaesemeyer v. Smith, 22 Idaho I (1912); Boswell v. Citizen's Savings Bank, supra, note 6, holding that the enactment of the Negotiable Instruments Law changed the law on the question; Hentz v. National City Bank, 159 App. Div. (N. Y.) 743 (1913); Chrzanowska v. Corn Exchange Bank, supra, note 4.

took a transfer for the purpose of continuing his journey on another line, operated by the same company. He left the first car at the end of its run, and walked toward the place where passengers usually waited for the second car. When the car upon which he had been riding was started, a switch in some way became opened, and the rear trucks of the car swung out to the side, striking the plaintiff, and injuring him. The Supreme Court of Illinois held that the plaintiff was still a passenger on the lines of the defendant, that, where a passenger in pursuance of a continuous journey transfers from one car to another, the relationship continues throughout the necessary acts of such transfer. Two judges dissented on the ground that to be a passenger, the party must be in some way under the control of the carrier, so that it may exercise the high degree of care required of it in such

cases.

It would seem that two elements are necessary to commence the relationship with a railroad, the first being some notification that the party intends to become a passenger, and the second, the placing of himself in some manner under the control of the railway company. Thus, there is little doubt that where a person has purchased a ticket, and is present at the point of departure, standing on the platform awaiting the arrival of the train, or crossing the tracks from the station to enter the cars, the relationship exists. By his act of purchasing the ticket he has notified the railway company of his intention to become a passenger, and while in the station, or in the act of entering the train, he may be said to have placed himself under its control. But where he has purchased a ticket, but has not yet been to the depot, he cannot be said to be under the control of the company. If he is present at the point of departure of the train, but has not indicated his intention of purchasing a ticket, or of boarding a train, he is nót a passenger, because although he is in a position to be under the control of the carrier, he has not shown his intention of becoming a passenger. Likewise, where a person is crossing the tracks, with intent to take a train, but has not yet reached the railroad station premises, he is not a passenger, and this is true even when he possesses a ticket, since he has not placed himself under the carrier's control. Both elements must be present before the relationship can exist.

5

In the case of street railways it is a settled rule that a person becomes a passenger when the car stops to receive him, and as soon as he starts to enter the car, by setting foot on the running board or step." The necessary elements of contract, for the relation, of course, is contractual, are then present. Where one is waiting at the proper point to take a street car, and sees the motorman turn off the power and

'Central Ry. Co. v. Perry, 58 Ga. 461 (1877); C. & A. Ry. Co. v. Walker, 217 Ill. 605 (1905); Atchison,T. & S. F. Ry. Co. v. Holloway, 71 Kan. 1 (1905); Warren v. Fitchburg Ry. Co., 90 Mass. 277 (1864); Busch v. Interborough Co., 110 App. Div. (N. Y.) 705 (1906).

2Southern Ry. Co. v. Smith, 86 Fed. 292 (1898).

Fremont Ry. Co. v. Hagblad, 72 Neb. 773 (1904).

Tingley v. L. I. Ry. Co., 109 App. Div. (N. Y.) 793 (1905).

"Chicago & E. I. Ry. Co. v. Jennings, 190 Ill. 478 (1901).

"Hall v. Terre Haute Electric Co., 38 Ind. App. 43 (1905); Gordon v. West End St. Ry., 175 Mass. 181 (1900); Gaffney v. St. Paul City Ry. Co., 81 Minn. 459 (1900); Barth v. Kansas City El. Ry. Co., 142 Mo. 535 (1898).

apply his brakes for the apparent purpose fo stopping, he has the right to assume that he is invited to board, and upon his attempting to do so, the relation of passenger and carrier will exist. But the same two elements as stated above must be present, and a person is not a passenger before he reaches the car, even though the car has stopped to receive him,' since he has not placed himself in a position such that the carrier may exercise the degree of care exacted of it. And, of course, he cannot be a passenger from the mere fact of running toward a moving car, with the intention to get aboard.

The next situation to be considered is that where the passenger alights from the car, either temporarily, or for the purpose of changing cars and continuing his trip on another train. Where the passenger alights at a place designated for the discharge of passengers, for a reasonable and usual purpose incidental to the journey, like that of refreshment, sending and receiving telegrams, or exercise, the relationship continues to exist." He is still under the control of the carrier. But if he leaves the station premises to go to a hotel, with the intention of continuing his journey later, 10 or where he leaves the car at a place not designated for the discharge of passengers," he is not under control of the carrier, and is no longer a passenger. If the passenger, in pursuance of a continuous railroad journey, transfers from one train to another, the relation of carrier and passenger continues throughout the necessary acts of such transfer, the test here being whether the journey was continuous or not. It will be seen, however, that in transferring from one street car to another, the passenger will in most cases remove himself from the control of the carrier. That is the ground of the dissent in the principal case. It would appear that the law on this point is well settled, however, and that where a party finds it necessary to transfer, in pursuance of a continuous trip, the relationship does not cease, 12 since he is merely acting according to the means provided by the company. It is submitted that the cases cited by the Illinois court in the principal case as contra to this doctrine are not in point, since in neither of those cases did it appear that the passenger was making a continuous trip, or that he was in the act of transferring to another car. 13

The last phase to be considered is that of the termination of the relationship. In its application to railway trains, the relationship does not terminate when the passenger has alighted at the station, until after a reasonable time in which to leave the station has elapsed.14

'Duchemin v. Boston El. Ry. Co., 186 Mass. 353 (1904). Chicago Union Traction Co. v. O'Brien, 219 Ill. 303 (1905).

Ala. G. S. Ry. Co. v. Coggins, 32 C. C. (Ala.) 1 (1898); St. Louis S. W. Ry. Co. v. Humphreys, 25 Tex. Civ. App. 401 (1901).

10King v. Cent. of Ga. Ry., 107 Ga. 754 (1899).

"Lemery v. Great Northern Ry. Co., 83 Minn. 47 (1901).

12B. & O. Ry. Co. v. State, 60 Md. 449 (1883); Wilson v. Detroit Ry. Co., 167 Mich. 107 (1911); Whilt v. Public Serv. Corp., 76 N. J. L., 729 (1908); Walger v. Jersey City Ry. Co., 71 N. J. L., 356 (1904); Miller v. Brooklyn Heights, Ry. Co., 124 App. Div. (N. Y.) 537 (1908); Clark v. Durham Traction Co., 138 N. C. 77 (1905); Keator v. Scranton Traction Co., 191 Pa. St. 102 (1899).

13Cases cited in principal case were: Creamer v. West End Ry. Co., 156 Mass. 320 (1892); Street Ry. v. Boddy, 105 Tenn. 666 (1900).

14Chicago, R. I. & P. Ry. Co. v. Wood, 104 Fed. 663 (1900); Brunswick & W. R. R. Co. v. Moore, 101 Ga. 684 (1897); N. Y. C. & S. L. Ry. Co. v. Doane, 115 Ind. 435 (1888).

The relation does terminate, when the party has left the train and the station premises, or has had a reasonable time and has failed to leave.15 A party ceases to be a passenger on a street car, when he has stepped from the car and alighted in the public street, and is clearly off the car. 16 He is, therefore, not a passenger while passing from the car to the sidewalk, or while walking around the end of the car to gain the other sidewalk.17

Lansing S. Hoskins, '20.

Conflict of Laws: Inheritance tax.-In State of Colorado u. Harbeck, 189 App. Div. (N. Y.) 865 (1919), Harbeck, the testator, died in New York City while en route abroad. He had left Colorado, the state of his domicile, intending to go to Paris, France, and there establish his permanent residence. The property which he disposed of by will consisted chiefly of personalty situated in New York, and none of the property of which testator died possessed was situated in Colorado. The will was probated in New York, legatees received their bequests according to Colorado law which they invoked, and the transfer tax due New York was assessed and paid as upon a nonresident's estate. The action in the present case was brought by the State of Colorado to recover the inheritance tax alleged to be due that state on the grounds that the testator was domiciled there at the time of his death. It was held that recovery should be allowed.

It was contended on the part of the defendants that the State of Colorado had no jurisdiction, either over the property or over the defendants themselves, and, therefore, could not levy the inheritance tax; and it was further contended that the notice of proceedings to assess the tax which was mailed to the defendants was not sufficient to give jurisdiction for that purpose. It would seem that the question is not one of jurisdiction, either of the person or of the property, and that the decision of the court that the state of a decedent's domicile may levy an inheritance tax when neither the legatees under the will nor the property bequeathed is physically present in that state, is correct. There is some authority holding that the right to tax is contingent upon the existence of the property in the state, and that for this purpose the personalty situated in a foreign jurisdiction will be regarded as being present in the state of the domicile. This fiction, so contrary to reality, is unnecessary, for the tax is not levied upon the property but is a fee paid the state which creates the right under

15St. Louis Ry. Co. v. Beecher, 65 Ark. 64 (1898); Glenn v. Lake Erie & W. R. Co., 165 Ind. 659 (1905).

16 Atlanta Co. Ry. Co. v. Bates, 103 Ga. 333 (1898); West Chicago St. Ry. Co. v. Buckley, 102 Ill. App. 314 (1902); Cent. Ry. Co. v. Peacock, 69 Md. 257 (1888); Allerton v. Boston & M. Ry. Co., 146 Mass. 241 (1888).

17Conroy v. Boston, El. Ry. Co., 188 Mass. 411 (1905); Poland v. United Traction Co., 107 App. Div. (N. Y.) 561 (1905); Smith v. City Ry. Co., 29 Ore. 539 (1896).

'It is held that the existing domicile of birth or choice remains until a new one is actually acquired. Hageman v. Fox, 31 Barb. (N. Y.), 475, 476 (1860); Dupuy v. Wurtz, 53 N. Y. 556, 561 (1873). Here, the testator had chosen, but had not actually acquired a new domicile.

Holcomb v. Phelps, 16 Conn. 126, 133 (1844); Lawrence v. Kitteredge, 21 Conn. 576, 582 (1852); Frothingham v. Shaw, 175 Mass. 59 (1899); Matter of James, 144 N. Y. 6, 10 (1894).