judicial generalizations as to what as a matter of fact is due care in each class of cases. According to this view, there would be no difficulty in holding a negligent defendant, as in the principal case, even though he could not be brought clearly within one of the established classes. The only peculiarity would be that the jury would have to determine the standard of due care, instead of having it settled for them as a matter of law. A few courts seem to assume the point of view contended for, though without a clear expression of it. Some cases, for instance, appear to make an owner's liability to business visitors depend on whether he had notice of their whereabouts at the time. Broslin v. Kansas, etc., R. R. Co., 114 Ala. 398. Similarly the owner may be liable to a trespasser where trespassers are common and to be expected. South & North Ala. Ry. Co. v. Donovan, 84 Ala. 141. The circumstances relied upon would seem immaterial, except as they help to determine the standard of care.

AVOIDING STATUTE OF LIMITATIONS BY ACKNOWLEDGMENT OF DEBT.The apparent injustice of extinguishing a valid debt by a strict application of the statute of limitations led the courts at a comparatively early date to modify the effect of the statute by holding that any new promise to pay a debt thus barred revived the liability. The existing moral obligation was held a sufficient consideration to support the new promise. See Philips v. Philips, 3 Hare 281, 299. Subsequently, the mere acknowledgment of the existence of the debt was regarded as raising an implied promise to pay it. See Sigourney v. Drury, 31 Mass. 387. At first the theory by which the acknowledgment was regarded as reviving the debtor's liability was apparently that the statute merely raised a presumption of payment which might be rebutted. Newlin v. Duncan, 1 Harr. (Del.) 204. This, however, was too palpable a fiction. The logical result of it would be that the statutory bar might always be removed by proof that the debt had not, in fact, been paid. This would have rendered the statute entirely nugatory; consequently the whole theory has been generally discarded. A second theory suggested is that the acknowledgment is in effect merely a waiver of the statutory defense. To this explanation, however, there are several objections. In the first place, it is generally, though not universally, held that the new promise must be made before action brought, and not during the suit. Bradford v. Spyker's Adm'r, 32 Ala. 134. Again, if the new promise be conditional in form, it need be fulfilled only according to its terms. Tanner v. Smart, 6 B. & C. 603. Furthermore, the statute immediately begins to run on the new promise as though it were an independent cause of action. Munson v. Rice, 18 Vt. 53. In the face of these objections it would seem that the theory of waiver is untenable. The new promise is now considered as one of the essential elements on which the suit is founded. Krebs v. Olmstead, 137 Mass. 504.

Just what has been required by the courts in order to avoid the effect of the statute has varied from time to time. At one period the courts, influenced by the theory that the statute merely raised a presumption of payment, allowed almost any admission of the debt to take the case out of the statute. Peters v. Brown, 4 Esp. 46; Bryan v. Horseman, 4 East 599. The modern cases, recognizing that the action is in reality grounded upon the new promise, have required something nearer a promise in fact. To-day an acknowledgment of indebtedness must be clear and distinct.

Bell v.

Morrison, 1 Pet. (U. S. Sup. Ct.) 351. It must be made directly to the creditor. Wachter v. Albee, 80 Ill. 47. It must not be coupled with words or circumstances indicating an intention not to pay the debt. Bell v. Morrison, supra. Indeed, some cases show a tendency to require positive indications of intention to pay. This is well illustrated by two recent decisions. Wood v. Merrietta, 71 Pac. Rep. 579 (Kan.) and Lambert v. Doyle, 43 S. E. Rep. 416 (Ga.). In both cases unqualified acknowledgments of indebtedness unaccompanied by any statements of an intention to pay were held insufficient.

On principle there seems to be no reason why the result of the statute of limitations as applied to debts should differ from that where it is applied to land. Though the statute in terms bars only the remedy, in land cases it is well settled that when the statutory period has run, a good title is conferred on the adverse possessor and the true owner's right is gone. Inhabitants, etc., in Winthrop v. Benson, 31 Me. 381. Such a theory is in its nature as applicable to debts as to land. Practically it might seem as harsh that a true owner should lose his land, as that a creditor should lose his debt. Yet the results in the cases of real estate have been generally recognized as desirable. It is to be regretted that the law as to debts is settled on opposing lines. In any event the recent cases noted above show a fortunate tendency to limit that doctrine.

THE WABASH STRIKE INJUNCTION.

Whatever the law may have been a few years ago, it is unquestioned to-day that equity has the power to restrain the continuation of violent strikes. The Wabash Railroad injunction, restraining a peaceable strike, however, seems to have been an attempt by the court to impose upon railroad employees restrictions which more properly should have emanated from the legislature. Though the injunction was subsequently dissolved, the questions raised in the preliminary hearing are of such vital importance as to be worthy of comment. Wholly because the employees were employed by a public service company, certain labor leaders were restrained from bringing about a strike. Wabash R. R. Co. v. Hannahan, 56 Cent. L. J. 201 (decided Mar. 3, 1903, by Dist. Ct., E. D. Mo.).

Such a decision draws a positive distinction between the right of an ordinary laborer and that of a railroad employee to enter upon a peaceful strike. This is hardly justifiable in the present state of the law. It has been universally conceded that every workingman has a right to strike peaceably either alone, or in combination with others, no matter what injury is done thereby to private individuals. Is this right to be lessened when the public at large is injured? Beneath the surface of this question lies a sharp conflict between the individual's right of personal liberty in action and the community's right to continuous adequate service. Despite the undoubted importance of the latter, it must surely be more in consonance with the genius of our institutions that the former should prevail. Though there are several cases which assert that one who offers his services to a railroad impliedly gives up his right to quit when he pleases, it must be remembered that this language was not necessary for the decisions, and was used during the riots of 1894 when less emphatic words would have spelled anarchy. See Toledo, etc., Ry. Co. v. Penn. Co., 54 Fed. Rep. 746; United States v. Elliot, 62 Fed. Rep. 801.

Assuming, however, that such injunctions are bad by common law principles, a further question arises whether the situation has been changed by the Sherman Act prohibiting combinations or conspiracies in restraint of trade or interstate commerce. If railroad employees were engaged in interstate commerce, a concerted strike would undoubtedly fall within the terms of the Act. But they are not so engaged. They are engaged in supplying labor to their employers, and, in theory at least, they are no more in interstate commerce than are the dealers who supply other commodities necessary for the running of a railroad. While it must be acknowledged that a strike tends almost necessarily to impede interstate commerce, such a result is purely incidental. The duty to the public is owed by the employers alone, not by the employees. See People v. N. Y., etc., R. R., 28 Hun (N. Y.) 543. Thus it would seem that the Sherman Act cannot reasonably be considered to apply to strikes of such a nature. The law being as it is, the dissolution of the injunction in the principal case can be regarded only with satisfaction.

RECENT CASES.

ADMIRALTY - SALVAGE CLAIM BY OWNER OF OFFENDING VESSEL - LIMITATION OF LIABILITY. - A barge, sunk by fault of a tug, was raised by other vessels belonging to the owners of the tug. The tug-owners took the statutory proceedings to limit their liability to the value of the tug, and then claimed salvage for raising the barge. Held, that they are not entitled to salvage. The Pine Forest, 119 Fed. Rep. 999 (Dist. Ct., R. I.).

Where such services are rendered by the vessel at fault, no salvage is recoverable. See The Clarita, 23 Wall. (U. S. Sup. Ct.) 1, 18. In such cases, the courts apparently personify the vessel as the wrongdoer and hold her disqualified from claiming salvage. See The Glengaber, L. R. 3 A. & E. 534. This doctrine is obviously inapplicable where the assistance is rendered by vessels other than the offender. In those cases, therefore, the services could clearly, apart from statutes allowing limitation of liability, be set up in reduction of damages, or, it would seem, optionally by way of crossaction. See The Glengaber, supra. That the defendant avails himself of such statutes, should not deprive him of these rights. The contrary view plainly discourages such services, and involves the injustice of allowing the injured party to recover the ull statutory damages and also to profit by the unremunerated labor of vessels under no legal duty to perform it. Obviously, however, the owners of the offending vessel should not be allowed as salvage a sum greater than their limited liability; for otherwise they would be permitted to make actual profit from their wrong.

BANKRUPTCY - DISSOLUTION OF LIENS-EXECUTION SALE WITHIN FOUR MONTHS. A judgment was obtained against an insolvent debtor within four months of the filing of the petition in bankruptcy. His property was sold on execution, but before the return day of the writ the petition was filed. Held, that under § 67 ƒ of the National Bankruptcy Act, the trustee in bankruptcy is entitled to the proceeds of the sale in the sheriff's hands. Clarke v. Larremore, 23 Sup. Ct. Rep. 363, affirming the decision of the Circuit Court of Appeals, sub nom. In Re Kenney, 105 Fed. Rep. 897.

The proceeds of an execution sale in the sheriff's hands before the return day of the writ cannot, according to the weight of authority, be attached as the property of the execution creditor. Turner v. Fendall, 1 Cranch (U. S. Sup. Ct.) 117; but see Wehle v. Conner, 83 N. Y. 231. Nor is the sheriff generally subject to garnishment in a suit against the creditor. Marvin v. Hawley, 9 Mo. 378. Until the writ is returned it is not fully executed and the creditor has no absolute claim to the proceeds. See FREEMAN, EXECUTIONS 577. Consequently the decision under discussion seems correct in holding that the right of the execution creditor, under such circumstances, is a lien rendered null and void by § 67 f. There have been, however, contrary decisions. Re Seebold,

105 Fed. Rep. 910; Doyle v. Hall, 86 Ill. App. 163. The court expressly refrains from stating an opinion as to the right of a trustee in bankruptcy to proceeds if already paid over to the execution creditor. However, the court's assertion that all liens within four months become null from their inception upon adjudication of bankruptcy, indicates that the drastic treatment of preferential payments by the Act may even be extended to entitling the trustee in such a case. See Levor v. Seiter, 69 N. Y. Supp. 987.

BANKRUPTCY PREFERENCES - EQUITABLE Mortgage of PERSONALTY. - The bankrupt, more than four months before the petition was filed, mortgaged by an unrecorded agreement all his property, present and to be acquired, to the defendant. Within four months of the filing of the petition, the defendant, having reasonable cause to know of the debtor's insolvency, took possession of all the bankrupt's property. There were no creditors who could have annulled the transfer. Held, that the trustee in bankruptcy can avoid the transaction. Mathews v. Hardt, 79 N. Y. App. Div. 570.

In New York a mortgage of after-acquired property creates an equitable lien. Perley v. Dwight, 132 N. Y. 59; cf. N. Y. Security Co. v. Saratoga, etc., Co., 159 N. Y. 137. The defendant's right would thus seem to have been unimpeachable, on the principle that a trustee takes subject to all the equitable liens that affected the bankrupt. Philadelphia v. Eckels, 98 Fed. Rep. 485. To avoid giving the equitable lien or a preference in the distribution of assets, however, the court disregarded this principle and held that the defendant's right accrued only when he took possession of the property. But the doctrine of Holroyd v. Marshal is that the equitable lien attaches when the mortgagor's title accrues. See 13 HARV. L. REV. 598. Strictly therefore the equitable mortgagee should have a prior right to at least all property acquired by the mortgagee more than four months before the petition. In a conflict between the rights of the equitable mortgagee and of the general creditors the general policy in bankruptcy proceedings is favorable to the latter; but theoretically it is difficult to support the decision in the principal case.

BILLS AND NOTES FORGED CHECKS-DRAWEE'S RIGHT TO RECOVER. — A bank cashed over its counter, without inquiry or identification, certain checks presented by an unknown man. The drawee paid the checks apparently without negligence. It appeared later that they were forged. Held, that the drawee may recover the money he has paid from the bank which cashed the checks. Bank v. Bingham, 71 Pac. Rep. 43 (Wash.). See NOTES, p. 514.

NEGOTIABILITY

BILLS AND NOTES WAIVER OF DEFENSE. - A joint and several promissory note contained a clause that "no time given to or security taken from or composition or arrangement entered into with either party hereto shall prejudice the rights of the holder to proceed against any other party." Held, that this does not invalidate the instrument as a promissory note. Kirkwood v. Carroll, 19 T. L. R. 253 (Eng., C. A.).

A promissory note, to be negotiable, must contain an unconditional promise to pay, not coupled with an independent promise to do anything else. A waiver of defenses, however, does not qualify the promise to pay, but rather strengthens it. Thus, it is held that a note coupled with a power of attorney to confess judgment if not paid at maturity is negotiable. Osborn v. Hawley, 19 Oh. 130. The result is the same when the maker waives exemptions and the right of appeal. Zimmerman v. Anderson, 67 Pa. St. 421; contra, Bank v. Wheeler, 75 Mich. 546. The principal case would seem to be analogous and the decision, therefore, sound. Although the stipulation here discussed is not included in the English Bills of Exchange Act among those stated as not invalidating a note, the court holds the provision of the Act not to be exclusive. Yates v. Evans, 61 L. J. Q. B. 446; contra, Kirkwood v. Smith, 1 Q. B. 582. The American act resembles the English on this point. Neg. Inst. Law, §§ 3, 5.

CONFLICT OF LAWS-CAPACITY TO CONTRACT COVERTURE AS DEFENSE.— A married woman, incapable of contracting in Tennessee, made while resident there a promissory note. The note was sent by mail to a bank in Ohio, where a married woman may contract, in renewal of a note conceded to have been binding on her. Suit was brought on the renewal note in Tennessee. Held, that although there is a good contract by the law of Ohio, coverture is nevertheless a good defense in Tennessee. First Nat'l Bank v. Shaw, 70 S. W. Rep. 807 (Tenn.).

Ordinarily when a note is sent by mail by the maker to the payee the contract is made at the place of mailing. Barret v. Dodge, 16 R. I. 740. But when a note is in renewal, the contract is made at the place at which the first note is taken up. Staples

v. Nott, 128 N. Y. 403. This would seem a better ground for holding the note in the principal case an Ohio contract, than that taken by the court, namely, that Ohio is the place of performance. Since by the common law capacity to contract depends on the lex loci contractus, the contract here is a binding obligation. Milliken v. Pratt, 125 Mass. 374. Generally a valid contract will be enforced in a foreign state even if it could not there have been made legally binding. Greenwood v. Curtis, 6 Mass. 351. But the domestic law may refuse to give the contract effect if contrary to domestic public policy. Emery v. Burbank, 163 Mass. 326. As to whether it is against public policy, in a state where married women are incapable of contracting, to enforce contracts made by them abroad, opinions may well differ. Cf. Milliken v. Pratt, supra; contra, Armstrong v. Best, 112 N. C. 59.

AND ADMINISTRATORS

INSURANCE

CONFLICT OF LAWS GUARDIANS POLICIES. - On the death of a member of a beneficiary society a domiciliary guardian of the infant beneficiaries, and an ancillary guardian, who had possession of the insurance certificate, were appointed in different states. The latter guardian brought suit on the certificate first, but the former thereafter obtained judgment and payment, each having proceeded in the state of his appointment. Held, that the right of the ancillary guardian is barred. Modern Woodmen of America v. Hester, 71 Pac. Rep. 279 (Kan.). The assumption of the court that a domiciliary administrator or guardian though not in possession of the insurance policy has the exclusive right to sue, has little support. Accord, Ellis v. Northwestern M. L. I. Co., 100 Tenn. 177; contra, Sulz v. Mutual R. F. L. Assn., 145 N. Y. 563. Some courts hold that either the domiciliary administrator, or the ancillary administrator in possession of the policy may sue, but that a pending action by one should bar the other on the principle of comity. See Sulz v. Mutual R. F. L. Assn., supra. On general principles, either administrator may enforce a claim against the company as a debtor within his jurisdiction. In an action on an insurance policy, however, the plaintiff must produce the policy or satisfactorily account for it. The ancillary administrator has rightful possession of the policy and his right to sue seems perfect. If that is admitted, it would seem that the domiciliary administrator could not properly account for the non-production of the policy. Accordingly, in some jurisdictions the ancillary administrator is given an exclusive right to sue. New York L. Ins. Co. v. Smith, 67 Fed. Rep. 694. Under this view the decision of the principal case is incorrect since payment to the wrong claimant is no defense in the absence of special equities. See Steele v. Connecticut G. L. I. Co., 31 N. Y. App. Div. 389; but cf. Bull v. Fuller, 78 Ia. 20.

CONFLICT OF LAWS-TERRITORIAL LAWS PLACE OF IMPRISONMENT. - A statute of the United States provides that the legislative assemblies of the several territories may contract for the imprisonment in other territories and states of their convicts. The legislature of Oklahoma accordingly passed an act authorizing its governor to make such a contract with the proper authorities of some state. Under this law a contract was made with the directors of the Kansas penitentiary. The petitioner, an Oklahoma convict, confined in the Kansas penitentiary according to this arrangement, sued out a writ of habeas corpus. Held, that the writ should not be granted. In re Terrill, 71 Pac. Rep. 589 (Kan.).

But for the federal statute the detention of the petitioner would appear to be improper, for he would then undeniably be confined beyond the jurisdiction of the laws under which he is punished. Regina v. Lesley, 8 Cox C. C. 269. Such imprisonment, however, has been erroneously justified under the constitutional requirement that full faith and credit be given the judicial proceedings of other states. In Re Maney, 20 Wash. 509; see 12 HARV. L. REV. 567. But the principal case holds that the detention is warranted by virtue of the federal statute. The dissenting judges take the view that Congress merely granted permission to pass territorial laws, disregarding the futility of such laws, to authorize the detention of convicts beyond their jurisdiction. But the disposition of the case seems on the whole satisfactory. Had Congress enacted directly that Oklahoma convicts should be confined in states designated by the territorial governor, the petitioner's imprisonment would be unassailable. See Ex parte Karstendick, 93 U. S. 396. It is reasonable to regard this federal statute also as legalizing detention in states designated by the governor, though it becomes operative only when the territorial assemblies act under its provisions.

CONSTITUTIONAL LAW-DUE PROCESS OF LAW-VESTED RIGHT IN ALIMONY, In 1892 the plaintiff obtained a decree of absolute divorce and annual alimony from the defendant. A statute passed in 1900 provides that the courts may subsequently vary decrees awarding alimony "whether heretofore or hereafter rendered." (N. Y.