tural; and that such relief necessitates a departure from the bargain entered into by the parties so great as to work an undue hardship on the vendor. 15

INDIANS AND THE UNITED STATES. On the discovery of America, the governments of the old world, to regulate among themselves the right of acquisition, adopted the principle that discovery should give title to the government under which it was made against all other European governments. This principle, although vesting title to the soil in the nation which made the discovery, as against other European nations, was understood not to affect the right of the aboriginal inhabitants to occupancy, but merely to confer on the discoverer the exclusive right to purchase their lands. By the various charters granted by the King of Great Britain, this title to the soil with the right of preëmption was vested in the colonies, continued in them after the establishment of their independence, and was ceded by them in most cases to the federal government, which also by the Constitution was granted the exclusive power to regulate commerce with the Indian tribes. The United States government continued to deal with the Indians by treaties, made as in the case of treaties with foreign nations, and becoming the supreme law of the land. The Indian tribes and nations were regarded as semiindependent communities, administering their own internal governments, but never from the first acknowledged as foreign states. In 1871 this semi-independence was substantially repudiated by a statute providing that the United States should no longer deal with them by treaty.8

5

From the earliest times, however, the Indians have been regarded as wards of the United States, and the tribes as domestic dependent nations over which the United States might exercise full power of guardianship. They may be governed by acts of Congress, as well as controlled by treaties.10 Their land may be disposed of without their consent and no question of deprivation of vested rights without due process of law is thereby raised." The constitutional power to regulate commerce with the Indian tribes applies wherever the tribes exist,12 although their members have become citizens of a state and the commerce occurs out

15 Reilly v. Smith, 25 N. J. Eq. 158; Humphrey v. Clement, 44 Ill. 299. Cf. Kuratli v. Jackson, 118 Pac. 192 (Or.). The reasoning of the Pennsylvania court in Riesz's Appeal, 73 Pa. St. 485, that relief is refused because of the pressure it would exert on the wife seems unnecessary and is not persuasive.

1 See Johnson v. M'Intosh, 8 Wheat. (U. S.) 543, 573

2 See Worcester v. Georgia, 6 Pet. (U. S.) 515, 544.

3 See Johnson v. M'Intosh, supra, 586.

4 U. S. CONST., Art. 1, § 8. See Worcester v. Georgia, supra, 580.

5 See Holden v. Joy, 17 Wall. (U. S.) 211, 242, 247.

6 Fellows v. Blacksmith, 19 How. (U. S.) 366.

7 Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1. It has been held that a state may purchase land by treaty from the Indians, under the supervision of the United States. Seneca Nation v. Christie, 126 N. Y. 122, 27 N. E. 275.

8 U. S. REV. STAT., 1875, § 2079.

9 See Cherokee Nation v. Georgia, supra, 17.

10 United States v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109.

11 Lone Wolf v. Hitchcock, 19 App. D. C. 315, aff'd in 187 U. S. 553, 23 Sup. Ct. 216. 12 Adams v. Freeman, 50 Pac. 135 (Okl.).

side of the reservation.13 On the other hand, the United States has a duty to protect its wards and, as incident to that duty, has certain rights against third parties. It may sue to enjoin interference with Indians' fishing rights; 14 to restrain the collection of taxes from Indians to whom lands have been allotted; 15 and to set aside contracts obtained by fraud from Indians who are citizens of a state.16 In a recent case, the Supreme Court held that the United States could sue to cancel conveyances made by Indians contrary to the statute under which the lands had been allotted, and that the absence of pecuniary interest in the controversy was immaterial. Heckman v. United States, 32 Sup. Ct. 424.1 Conversely, the United States by the various Depredation Acts has assumed the responsibility for injuries committed by its wards upon third persons.18

The Indian himself is not a citizen of the United States by birth since not born subject to the jurisdiction thereof.19 Nor can he become a citizen under the general naturalization law because he does not comply with the color requirement.20 The Dawes Act,21 however, in conferring citizenship upon all Indians born within the United States to whom lands have been allotted or who live apart from tribes and have adopted the habits of civilized life, has widely extended this privilege. But even citizenship under this act does not remove the member of an Indian tribe from his position, as ward of the nation.22

RECENT CASES.

AGENCY-NATURE AND INCIDENTS OF RELATION - FATHER'S LIABILITY FOR TORTS OF SON. - The plaintiff was injured by the defendant's automobile, due to its negligent operation by the defendant's minor son. The son was using the car on a pleasure trip of his own without his father's knowledge but pursuant to a general permission to use it. Held, that the defendant is liable. Stowe v. Morris, 144 S. W. 52 (Ky.).

The court reasons that the son was the general agent of his father, because the machine was bought for the family pleasure and he was deriving pleasure from its operation. The act of driving the car plus the purpose for which it

13 United States v. Holliday, 3 Wall. (U. S.) 407.

14 United States v. Winans, 73 Fed. 72.

15 United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478.

16 United States v. Boyd, 68 Fed. 577.

17 The fact that the Indian grantors were not joined and that the United States was not suing as trustee of the legal title was held immaterial. Cf. United States v. Flournoy, etc. Co., 71 Fed. 576.

18 The first act guaranteed eventual indemnification. 4 U. S. STAT. AT LARGE, 729, § 17. This was later repealed. 11 U. S. STAT. AT LARGE, 388, § 8. A later statute makes the United States liable when the Indian defendants are without funds and belong to a tribe in amity with the United States. 26 U.S. STAT. AT LARGE, 851, § 1. When the Indian offenders are unknown the United States is liable alone. United States v. Gorham, 165 U. S. 316, 17 Sup. Ct. 382.

19 Elks v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41.

20 In re Camille, 6 Fed. 256.

21 24 U. S. STAT. AT LARGE, 388, § 6.

22 State v. Columbia George, 39 Or. 127, 65 Pac. 604.

was bought is thus made to determine the agency. The important question should be whether the son was using the machine for his own purposes. Though the father may derive some incidental benefit by his son's pleasure, it is an argument more fictitious than real to say that the son becomes his father's agent to supply himself with pleasure. It is a mere evasion of the rule that a parent is not liable for the torts of his child. Kumba v. Gilham, 103 Wis. 312, 79 N. W. 325; Chastain v. Johns, 120 Ga. 977, 48 S. E. 343. Where the son has a general permission to drive the family horse, the father has been held not liable. Maddox v. Brown, 71 Me. 432. And it has become well settled that an automobile is not per se a dangerous machine. Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351; Cunningham v. Castle, 127 N. Y. App. Div. 580, III N. Y. Supp. 1057. On facts similar to those of the principal case the opposite result has been reached. Doran v. Thomsen, 76 N. J. L. 754, 71 Atl. 296; Maher v. Benedict, 123 N. Y. App. Div. 579, 108 N. Y. Supp. 228. Contra, Daily v. Maxwell, supra.

AGENCY RATIFICATION OF UNAUTHORIZED CONTRACTS CONTRACT OF INSURANCE RATIFIED AFTER OCCURRENCE OF Loss. — A contract of insurance was made by an unauthorized agent on behalf of the plaintiff but the premium was not paid. Held, that ratification after loss is ineffectual. Kline Bros. & Co. v. Royal Ins. Co., 192 Fed. 378 (Circ. Ct., S. D. N. Y.).

cern

A shipowner insured himself as "carrier, or for account of whom it may conupon a cargo of goods and after a total loss collected the amount of the policy. The owner of the cargo sued him for the money remaining after his loss as carrier was covered. Held, that the suit is a ratification and the plaintiff may recover. Symmers v. Carroll, 134 N. Y. Supp. 170 (N. Y., App. Div.). See NOTES, p. 729.

AMBASSADORS AND CONSULS RIGHT OF CONSUL TO BE APPOINTED ADMINISTRATOR OF FOREIGN DECEDENT'S ESTATE. Under the most favored nation clause in a treaty, an Italian consul applied for letters of administration upon the estate of a deceased Italian. The treaty with the most favored nation provided that the consul might "intervene in the possession, administration, and judicial liquidation of the estate" of a deceased citizen of his nation "for the benefit of creditors and legal heirs." Held, that granting letters of administration to the public administrator is not error. Rocca v. Thompson, 32 Sup. Ct. 207.

The question here involved is important, inasmuch as at least two other treaties have a like provision. TREATY WITH SPAIN OF JULY 3, 1902, Art. XXVIII, 33 U. S. STAT. AT LARGE 2120; CONVENTION WITH Greece of Dec. 2, 1902, Art. XI, 33 U. S. STAT. AT LARGE 2129. This decision has settled the law on the point against the weight of authority in the state courts. In re Wyman, 191 Mass. 276, 77 N. E. 379; Carpigiani v. Hall, 55 So. 248 (Ala.); Matter of Scutella, 145 N. Y. App. Div. 156, 129 N. Y. Supp. 20. Contra, Matter of Logiorato, 34 N. Y. Misc. 31, 69 N. Y. Supp. 507. It is the duty of an American consul only to deliver up the effects of the deceased to his legal representative. U. S. REV. STAT., 1878, § 1709. Since every state has the control over the administration of estates within its territories, it would seem that the treaty should expressly state the fact, if this right is to be ceded. Lanfear v. Ritchie, 9 La. Ann. 96. See 5 MOORE, DIG. INT. LAW, 123. In other treaties it has been expressly stipulated. TREATY WITH PERU OF AUG. 31, 1887, Art. XXXIII, 25 U. S. STAT. AT LARGE, 1461. Moreover, the correspondence between the parties to the treaty with Italy shows that the consul was not meant to have the right of administration, since the Italian ambassador requested a change to that effect and was answered that such a change was impracticable on account of the large amount of territory covered by one

consul. See 5 MOORE, DIG. INT. LAW, 122-123. The technical meaning of the word "intervene" is to come into a proceeding already instituted, and it is entirely reasonable to assume that all that was meant to be given was a right to come in and represent absent heirs or creditors. Cf. Succession of Rabasse, 47 La. Ann. 1454.

BANKRUPTCY

CIES.

PROPERTY PASSING TO TRUSTEE-LIFE INSURANCE POLIA bankrupt had a policy of insurance on his life which had no cash surrender value. The Bankruptcy Act, § 70 a (5), provides "that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may . . . pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own and carry such policy . . ., otherwise the policy shall pass to the trustee as assets." Held, that the policy does not pass to the trustee. In re Judson, 192 Fed. 834 (C. C. A., Second Circ.).

For a discussion of the principles involved, see 24 HARV. L. REV. 317.

BANKRUPTCY STATE BANKRUPTCY AND INSOLVENCY LAWS EFFECT OF NATIONAL BANKRUPTCY LAW ON STATE LAWs. - The National Bankruptcy Act, § 4b, provides that a farmer cannot be forced into involuntary bankruptcy. Held, that a farmer may be forced into involuntary bankruptcy under a state law. Lace v. Smith, 82 Atl. 268 (R. I.).

For a discussion of the principles involved, see 22 Harv. L. Rev. 547.

BILLS AND NOTES NEGOTIABILITY NOTE RECITING ITS CONSIDERATION TO BE A CONDITIONAL SALE. A note recited that its consideration was the sale of a chattel, the title to which was to remain in the seller until the note was paid, the risk of loss to be upon the buyer, the maker to furnish security when demanded, and if the maker disposed of any of his property, the payee to have the right to declare the note due. Held, that this note is not negotiable. Molsons Bank v. Howard, 21 Ont. Wkly. Rep. 278.

To be negotiable a note must be unconditional and certain in time. Hartley v. Wilkinson, 4 M. & S. 25; Mahoney v. Fitzpatrick, 133 Mass. 151. A recital in a note of the consideration for which it was given does not make its promise conditional. Hereth v. Meyer, 33 Ind. 511; Siegel v. Chicago, etc. Bank, 131 Ill. 569, 23 N. E. 417. But if the consideration is stated to be an executory promise to be performed before or at maturity, then the maker's promise is conditional. Hodges v. Hall, 5 Ga. 163; Fletcher v. Thompson, 55 N. H. 308. In a conditional sale with the risk of loss on the seller, there is in substance, as in form, an executory contract, the seller to perform when the price is paid, and hence the recital of this on a note makes its promise conditional. Sloan v. McCarty, 134 Mass. 245. But if the risk of loss is on the buyer, the so-called conditional sale is in substance an executed sale with a mortgage back, and the maker's promise is absolute. Chicago Ry. Equipment Co. v. Merchants' Bank, 136 U. S. 268, 10 Sup. Ct. 999. The decision in the principal case would, therefore, be based more properly on the ground that the provisions allowing the payee to declare the note due upon certain conditions make the time of payment uncertain. First National Bank v. Bynum, 84 N. C. 24; Carrol, etc. Bank v. Strother, 28 S. C. 504, 6 S. E. 313. Also, the promise to give additional security, a promise to do something other than pay money, may perhaps make the note non-negotiable. Holliday State Bank v. Hoffman, 85 Kan. 71, 116 Pac. 239. Contra, Dowie v. Joyner, 25 S. C. 123.

BILLS OF PEACE COMMON ISSUES AS BASIS FOR EQUITY JURISDICTION. Several persons sued a telephone company in tort for removing telephones from their premises. The company filed a bill in chancery to have

the suits enjoined and its liability determined in equity. Held, that the bill should be dismissed. Cumberland Tel. & Tel. Co. v. Williamson, 57 So. 559 (Miss.)

This case abrogates in Mississippi Pomeroy's doctrine of multiplicity of suits, adopted in Whilock v. Yazoo & Mississippi Valley R. Co., 91 Miss. 779, 45 So. 861. It rehabilitates Tribette v. Illinois Central R. Co., 70 Miss. 182, 12 So. 32. See 25 HARV. L. Rev. 559.

CHARITIES AND TRUSTS FOR CHARITABLE USES- RIGHTS AND LIABILITIES OF CHARITABLE ORGANIZATIONS - DANGEROUS CONDITION OF PREMISES. A licensee was injured by a spring gun on the premises of the defendant, a charitable corporation. Held, that the defendant is not liable. Hill v. President, etc. of Tualatin Academy and Pacific University, 121 Pac. 901 (Or.). See NOTES, p. 720.

CHATTEL MORTGAGES - RECORDING AND REGISTRY - WHAT CREDITORS ARE PROTECTED. A state statute provided that no mortgage should be valid against creditors until lodged for record. Subsequent creditors had no notice of an unrecorded chattel mortgage, but secured no lien on the mortgaged property. Held, that the mortgage is valid as against the creditors. Holt v. Crucible Steel Co., U. S. Sup. Ct., Apr. 1, 1912.

The extent to which statutes such as that in the principal case protect those who become creditors of the mortgagor without notice of a prior unrecorded chattel mortgage varies in different states. Some courts give the mortgagee precedence over all creditors who have obtained no property inter est in the mortgaged chattel before the recording of the mortgage. Overstreet v. Manning, 67 Tex. 657, 4 S. W. 248. The lien acquired by attachment is such an interest. Wicks v. McConnell, 102 Ky. 434, 43 S. W. 205. And creditors of a deceased insolvent debtor have been held to have the requisite interest in his property. Currie v. Knight, 34 N. J. Eq. 485. Contra, Folsom v. Peru Plow & Implement Co., 69 Neb. 316, 95 N. W. 635. Another view requires merely that the creditor secure judgment against the debtor and execution upon the property, even though this be done after the recording of the mortgage. Thompson v. Van Vechten, 27 N. Y. 568. Cf. Jones v. Graham, 77 N. Y. 628. And not even this is required when the circumstances make such procedure impossible. Skilton v. Codington, 185 N. Y. 80, 77 N. E. 790. A third view postpones the mortgage to all subsequent claims acquired without notice of it. Dempsey v. Pforzheimer, 86 Mich. 652, 49 N. W. 465. This most conforms to the letter of the statute and to its purpose, the protection of crediors who rely upon the apparent assets of their debtor. The effect of notice to the creditor is not involved in the principal case.

CHOSES IN ACTION - MANNER AND EFFECT OF ASSIGNMENT · PRIORITY OF NOTICE TO OBLIGOR: EFFECT IN CASE OF SUCCESSIVE ASSIGNMENTS OF EQUITABLE CHOSE IN ACTION. - The beneficiary of a trust fund assigned part of the fund to A., who failed to give notice of the assignment to the trustee. The beneficiary later assigned all his right, title and interest in the fund to B., who was ignorant of the previous assignment. It did not clearly appear whether B. made any inquiries of the trustee, but he notified the trustee of his assignment. Held, that B. is entitled to priority. Jenkinson v. New York Finance Co., 82 Atl. 36 (N. J.). See NOTES, p. 728.

CONFLICT OF LAWS PERSONAL JURISDICTION FOREIGN ENFORCEMENT OF STATUTORY LIABILITY OF STOCKHOLDERS FOR DEBTS OF INSOLVENT CORPORATION. The statutory receiver of an insolvent Minnesota corporation brought suit in Wisconsin to enforce the double liability of stockholders of