***to*** transport or have in possession any intoxicating liquor". Accused on invitation accepted a drink of intoxicating liquor and returned the bottle to its owner and was thereafter charged with having unlawful possession under the above statute. Held, that the accused was not guilty of unlawful possession of such liquor within the meaning of the statute, such possession not being sufficiently substantial. People v. Ninehouse, 198 N. W. 973.

Under legislation similar to the Michigan Prohibition Law other states have held that the facts of the present case fail to constitute unlawful possession. Brazeale v. State, 133 Miss. 171; State v. Jones, 114 Wash. 144; State v. Munson, 111 Kan. 318. Some courts have indicated that any corporeal possession of however brief duration and in whatever capacity except for the purpose of inspection or destruction will be sufficient. Harbin v. State, 210 Ala. 55; State v. Willey, (Ct. Gen. Sess. Del.) 108 Atl. 79. The Michigan cases show the possession contemplated must be actual possession. People v. Archer, 220 Mich. 552. Liquor found in an automobile is unlawfully possessed within the statute. People v. Chyc, 219 Mich. 273; or in the home or club or store. People v. Woodward, 220 Mich. 511, 518. But possession for the sole purpose of taking a drink is not sufficient by the present case.

Just where the line is to be drawn as to duration and purpose of possession is not clear from the decided cases. As a practical matter, as Wiest, J. points out, in a last analysis the issue resolves to "Is it a crime to take a drink of intoxicating liquor?" The Michigan statute does not so provide and this could easily have been done had the Legislature so desired.

What will constitute possession has been a fruitful field for discussion by jurists and philosophers since the date of its adoption from the Roman Law; in general see Thayer's "Possession," 18 H. L. R. 196; SALMOND ON JURISPRUDENCE, chapters xiii and xiv. Salmond defines corporeal possession as the continuing exercise of a claim to the exclusive use of a material thing. All the authorities agree that an intent to exclude others must co-exist with the external facts to constitute possession. It is clear the facts in the present case fail to establish a "possession" under the stated definition. The result in the present case seems undoubtedly correct on one of two grounds, either the facts fail to establish any possession whatsoever within the developed meaning of the word, or, assuming at

possession established, the statute contemplated a possession of a more substantial and enduring character than was here shown. C. E. CHURCHILL.

EXECUTORS AND ADMINISTRATORS-ADMINISTRATION OF THE ESTATE OF an Absentee Unheard of for over Seven Years but WHO IN FACT IS ALIVE.-P being absent and unheard of for twenty years, D was appointed his administrator to distribute certain money which had been bequeathed to P in his absence. D distributed the money, closed the estate and received his discharge. P reappeared and brought this suit against the administrator to recover the money so received and distributed. Held, that the proceedings in the probate court were void, and P should be allowed to recover from the administrator who is left his remedy against the distributees. Beckwith v. Bates, 228 Mich. 400.

The precise question in the principal case has never before been decided in Michigan. Mr. Justice Weist in his opinion did not once refer to a Michigan decision. Michigan, like most other jurisdictions, is committed to the rule that absence without being heard of for seven years creates a prima facie presumption of death. Bailey v. Bailey, 36 Mich, 181; Heagany v. National Union, 143 Mich. 186; 17 C. J. 1166; 8 R. C. L. 708. If administration is taken out on the property of an absentee under a general administration statute and it turns out that he is living the general rule is in accord with the principal case that such proceedings are void. Scott v. McNeal, 154 U. S. 34; Griffith v. Frazier, 8 Cranch. 9; Duncan & Hooper v. Stewart, 25 Ala. 408; Thomas v. People, 107 Ill. 517; Jochumsen v. Suffolk Savings Bank, 3 Allen (Mass.) 87; Devlin v. Commonwealth to use &c., 101 Pa. St. 273; Melia v. Simmons and another, 45 Wis. 334. On the other hand it has been held in some jurisdictions that the legislature may enact laws for the administration of the estates of absentees by providing for notice and proper safeguards for the preservation of the property and the rights of the absentee. Cunnius v. Reading School District, 198 U. S. 458; Chamberlain v. Anderson, 195 Iowa 855; New York Life Insurance Co. v. Chittenden & Eastman, 134 Iowa 613; Barton v. Kimmerley, 165 Ind. 609; Eddy v. Eddy, 302 Ill. 446; Adams v. Adams, 211 Mass. 198. The rule is well stated in Stevenson v. Montgomery, 263 Ill. 93, where the court says, "It is true that county courts can

only exercise the original jurisdiction conferred by the constitution over the estates of persons who are in fact deceased, and in the absence of statutory authority any proceeding affecting the estate of a living person would be wholly void. If it turns out that the person alleged to be dead is in fact alive the court cannot deprive him of his estate. It is, however, within the power of the state to provide for the administration of the estates of persons who are absent for such a length of time as gives rise to a reasonable presumption of death, and while county courts, under the general authority to settle the estates of deceased persons, are without power to administer the property of a living person, the state may provide for the administration of estates of persons who are absent for an unreasonable time and may enact reasonable regulations on that subject." The decision in the principal case is correct in view of the present state of of the law in Michigan. It is, no doubt, extremely hard on the administrator. But in the light of the foregoing authorities, it is submitted that the undesirable result reached can only be remedied by legislation providing for the administration of estates of unheard of absentees and properly safeguarding their rights. As to the constitutionality of such legislation see 4 MICH. L. REV. 141. Counsel for D argued in the instant case that the Michigan statute relative to escheated estates, 1 Comp. Laws 1915, sec. 329, taken in connection with the general law of the state governing administration of estates, conferred jurisdiction upon the probate court to grant administration upon the estate of P as one legally presumed to be dead. But the court held that the claim of D being in derogation of the common law, the statute must specifically apply if it is to be given effect. LELAND H. NOTNAGEL.

GOVERNMENTAL AGENCIES-CHARITABLE INSTITUTIONS-LIAbility for Negligence of SerVANTS.—In an application for a writ of mandamus to compel the court to set aside its order dismissing, as against the Board of Regents of the University of Michigan, the suit brought by the plaintiff, a free patient at its hospital, for injuries suffered through the negligence of one of the hospital surgeons. Held, that no liability exists on the part of the Board of Regents since they are constitutional state officers operating a governmental agency and also because they are administering a charitable hospital, Robinson v. Washtenaw Circuit Judge, 228 Mich. 225.

The rule is well settled that a state is not liable for injuries arising from the negligence of its officers and agents unless it assumes such a liability. The state cannot be sued in its own courts without its consent. Ambler v. Auditor General, 38 Mich. 746. And when the state delegates parts of its functions and duties to a body, it also imparts to that body its own immunity from suit. Nicholson v. City of Detroit, 129 Mich. 246. Were it not so, a judgment recovered from such a body "would be in effect a judgment against the state, to be enforced by execution against the state's property placed in the hands of its agency to be used for government purposes." Redress must be sought from the legislature. The education and instruction of the young is one of the main public duties of the state and the body to whom that duty is delegated is clearly, as the principal case recognizes, a governmental agency charged with carrying out of a state function and so is not responsible for the negligence of its servants. So it has been held that a board of education is exempt from liability for faulty construction, or want of repair, of its school building or torts of its servants employed therein, Daniels v. Board of Education, 191 Mich. 339, or for negligence of its agents in providing unsafe appliances with which a servant is directed to work. Whitehead v. Detroit Board of Education, 139 Mich. 490.

But where the injury is occasioned, not by the negligence of its agents, but by its direct act or trespass upon the premises of another, the body is held to be liable. Ferris v. Board of Education of Detroit, 122 Mich. 315. This distinction is clearly inconsistent with the theory of the immunity of the state and its agencies, but it does seem desirable in view of the constantly extending scope of governmental agencies to limit the immunity.

Other quasi-corporations, such as health board, highway districts, etc., since they act solely for the public welfare, are likewise protected from actions. Commissioners of Highways of Township of Niles v. Martin, 4 Mich. 557; Webb v. Detroit Board of Health, 116 Mich. 516; Murray v. Village of Grass Lake, 125 Mich. 2.

Cities and other municipal corporations, when in the exercise of duties delegated to or imposed upon them by the state for the public welfare, as distinct from municipal activities whcih concern only its private interest or are a source of revenue to it, enjoy the same immunity. Barron v. City of Detroit, 94 Mich. 601; Ostrander v. City of Lansing, 111 Mich. 693; Nicholson v. City of Detroit, supra;

Brink v. City of Grand Rapids, 144 Mich. 472; Heino v. City of Grand Rapids, 202 Mich. 363. As the principal case intimates, if the statute allows the corporation the right to sue and to be sued, that applies to contract actions and not to torts of their officers and agents. Daniels v. Board of Education, supra. See also Moody v. State Prison, 128 N. C. 12. But because the state instrumentalities cannot be sued, it does not follow that the officials or servants are not individually liable. Concerning the liability of school officers and instructors, see Opinion of Attorney General to K. G. Smith, Nov. 24, 1924.

As to the other point, it is well settled that the beneficiary cannot recover against a charitable institution for injuries sustained through the negligence of one of its officers or servants. In the first Michigan case, Downes v. Harper Hospital, 101 Mich. 555, the beneficiary was refused recovery apparently on the ground that to give damages would fritter away the charitable trust fund and divert it from the purposes for which given, which would not be permitted even though the act resulted injuriously to an innocent beneficiary. Despite the sentence, "Those voluntarily accepting the benefit of the charity accept it upon this condition", the case is mostly frequently cited to support the inviolability of the trust fund theory. The case was followed in Pepke v. Grace Hospital, 130 Mich. 493, without discussion of the principle underlying. In Bruce v. Central M. E. Church, 147 Mich. 230, where there was involved an injury to an employee, the court recognized that if the trust fund theory of nonliability was carried to its logical conclusion, it would furnish an absolute immunity in all cases. The court there limited the application of the Downes case to those who were beneficiaries of the trust fund, saying, "Corporations, administering a charitable trust, like all other corporations, are subject to the general laws of the land, and cannot, therefore claim exemption from responsibility for the torts of their agents, unless that claim is based on a contract with the person injured by such a tort *** Downes v. Harper Hospital and other similar cases *** rest upon the principle *** that the beneficiary of such charitable trust enters into a contract whereby he assumes the risk of such torts". The Bruce case was followed in Gallon v. House of Good Shepherd, 158 Mich. 361, and must be taken to settle the law in Michigan. In the latter case, the defendant, a charitable institution, was held to be liable for the torts of its