so altered circumstances that he was under a duty to the plaintiff to do an act which would have averted the damage sustained. That he has also failed in a duty to his principal should be held immaterial. Osborne v. Morgan (1881) 130 Mass. 102.

As to authority, Lord HOLT's rule has been stated repeatedly to be the law, but, as has been pointed out, it has usually been applied to cases where it might fairly be said that the duty to act was owed solely to the principal. There are, however, cases in a number of jurisdictions which refused recovery where on the principles stated above it was a fair question whether the agent was not under a duty to the plaintiff as well as to his principal. Van Antwerp v. Linton (1895) 89 Hun. 417; Murray v. Usher (1889) 117 N. Y. 542 (dictum); Dean v. Brock (1894) 11 Ind. App. 507; Feltus v. Swan (1884) 62 Miss. 415; Carey v. Rochereau (1883) 16 Fed. 87; Drake v. Hogan (Tenn. 1902) 67 S. W. 470.

On the other hand, where, on the ordinary principles of torts, the facts have clearly shown a duty to the third person injured, particularly where some positive act in the course of his employment has imposed the duty to do the further act, the courts in a number of jurisdictions have found a way to allow recovery. They have evaded the rule by broadening the definition of misfeasance. Horner v. Lawrence (1874) 37 N. J. L. 46; Lottman v. Barnett (1876) 62 Mo. 159; Ellis v. McNaughton (1889) 76 Mich. 237; or have ignored it, Campbell v. Portland Sugar Co. (1873) 62 Me. 552; or have denied its validity, Mayer v. Bldg. Co. (1894) 104 Ala. 611. In the New Jersey case an agent's omission to put up the bars of a fence properly taken down, in the Michigan case his failure to relay a walk taken up by another, were held to be misfeasance. A definition of misfeasance that would include these cases would seem to eliminate the term nonfeasance from the law of torts, or at any rate prevent its being used in contra-distinction to misfeasance. The better course seems to be taken by the Alabama court and the principal case in holding squarely that an agent's failure to act may be a nonfeasance both as to the principal and as to a third person injured thereby, and that if it is, the fact of agency cannot prevent the third person from

recovery.

In holding that an agent in complete control of premises is under a duty to keep them safe, the principal case is supported by Baird v. Shipman (1890) 132 Ill. 16; Campbell v. Sugar Co., supra, and is thought by Huffcut, "Agency," § 212, to be " more consonant with sound principles" than those cases which take the other view. That such a duty does not exist in every case where an agent has the management of premises is, however, well pointed out in Kuhnert v. Angell (1900) 10 N. Dak. 59. The agent's control must be complete, and he must stand towards third parties in the position usually occupied by the owner of the premises.

RECENT DECISIONS.

BANKRUPTCY RIGHTS OF CONDITIONAL VENDOR. By an unrecorded contract goods were sold, the title to remain in the vendor until payment. The vendee went into voluntary bankruptcy. In Nebraska such a condition in a sale is void as against purchasers for value and judgment creditors. The National Bankruptcy Law of 1898, § 70a (5), provides that the trustee shall be vested with the title of the bankrupt to all property which "he could by any means have transferred or which might have been levied upon and sold under judicial process against him." Held, the vendor could not reclaim the goods from the trustee. Logan v. Nebraska Moline Plow Co. (Neb. 1902) 92 N. W. 129.

The court follows, though with some reluctance, In re Pekin Plow Co. (C. C. A., 8th Circ. 1901) 112 Fed. 308, a case of involuntary bankruptcy. The opposite result was reached in the Second Circuit, under a substantially similar New York statute. In re New York Economical Printing Co. (1901) 110 Fed. 514. Under the Act of 1867, except in the case of fraudulent conveyances and of certain attachments, the assignee obtained no right that the bankrupt himself could not have enforced. Stewart v. Platt (1879) 101 U. S. 731, 738. The broad construction here placed by the court on § 70a (5) seems objectionable in that by letting in the general creditors it frustrates the purpose of the State statutes to prefer only judgment and attachment creditors to the holder of the unrecorded lien.

CARRIERS-PASSENGERS-SCOPE OF SERVANT'S AUTHORITY. While riding on the front platform of a crowded street car, without objection from the driver, contrary to the company's rules and its instructions to employees, the plaintiff was injured through negligence of the company's servants. The jury found (1) that the servants of the company had no authority to permit plaintiff to ride on the platform; (2) that plaintiff was not negligent; and (3) that he had no notice of the rules. Held, the plaintiff could not recover. Byrne v. Londonderry Tramway Company, [1902] 2 Ir.

457.

The decision of the court is based on the first finding of the jury. While a disregard of instructions is not sufficient to relieve the company from liability, Limpus v. Omnibus Co. (1862) 1 H. & C. 526, a decisive inference of fact may arise that the servant disobeying orders is not within the scope of his employment. Walker v. Railway Co. (1870) L. R. 5 C. P. 640. The weight of authority in the United States is that if a conductor accept one as a passenger, he will be treated as such in the absence of knowledge on his part of limitations upon the conductor's authority. Spence v. Chicago, etc. R. Co. (1902) 90 Ñ. W. 346. But it did not appear in the principal case that the conductor knew of the plaintiff's presence on the platform, and the evidence went to establish that it was considered "an offence" to ride there, not being a general practice, as in this country, where the opposite conclusion has been reached. Wilton v. Middlesex R. R. Co. (1871) 107 Mass. 108.

CARRIERS-PASSengers-Duty TO PROTECT. Husband and wife were in a depot together, the former acting as escort and the latter waiting to take a train for which she had already purchased a ticket. While there they were both assaulted by a drunken man who had been allowed to enter the depot. Held, the husband, being merely a licensee, could not recover, but the wife, being a passenger, had a good cause of action. Houston & Texas Central R. Co. v. Phillio (Tex. 1902) 69 S. W. 994. See NOTES,

p. 115.

CONSTITUTIONAL LAW-POLICE POWER-RIGHT TO BEAR ARMS. The Idaho constitution reads: "The people have the right to bear arms for their security and defence, but the legislature shall regulate the exercise of this right by law." An Idaho statute prohibited the carrying of deadly weapons within the limits of any city or town. Held, while prohibiting the carrying of concealed weapons would be a proper exercise of the police power of the State, an absolute prohibition was void as contravening the Second Amendment of the federal Constitution and the provision of the State constitution quoted. In re Brickey (Wash. 1902) 70 Pac. 609.

The Second Amendment_restricts only federal legislation. U. S. v. Cruikshank (1875) 92 U. S. 542; State v. Shelby (1886) 90 Mo. 302. Under substantially similar constitutional provisions it has been held a proper exercise of the police power of the State to prohibit carrying of weapons not arms, Andrews v. State, (Tenn. 1871) 3 Heisk. 165; to forbid any tramp to carry a dangerous weapon, State v. Hogan (1900) 63 Oh. St. 202; to prohibit carrying weapons to courts of justice, Hill v. State (1874) 53 Ga. 472. To have upheld the statute in the principal case, would, it is believed, have been an unwarranted extension of the principle in Hill v. State.

CORPORATIONS-DUTY OF DIRECTORS. The shareholders of a company sold their stock to the directors, who, empowered by the company's charter, had arranged to sell all its assets. Held, the shareholders were not entitled to rescind the sale for the failure of the directors to disclose the fact of the pending sale of the assets. Percival v. Wright, [1902] 2 Ch. 421.

Though the directors of a corporation undoubtedly occupy a fiduciary relation with regard to the shareholders in managing the affairs of the corporation and in their dealings with it, this relation does not extend to transactions in which no interest of the corporation is concerned, as in a sale of shares to a director. The parties stand in the ordinary position of vendor and purchaser, and a director is no more restrained from profiting by the knowledge he obtains in his official capacity than is any vendee who is fortunate enough to have exclusive information, always supposing there is no actual misrepresentation. This principle is well established in the United States. Tippecanoe County v. Reynolds (1873) 44 Ind. 509; Crowell v. Jackson (1891) 53 N. J. L. 656. And it should make no difference whether the sale be by one shareholder, or as in the principal case, by all, as they are still acting purely in an individual capacity.

CORPORATIONS-INSOLVENCY-STATUTORY PREFERENCES. The charter of a trust company, in accordance with a State banking law, provided that certain depositors' claims should be preferred. Held, while these preferences take effect from the time a receiver is appointed, interest on the preferred claims, the corporation being insolvent, will not be allowed to the prejudice of the unpreferred claims. People v. American Loan & Trust Co. (1902) 172 N. Y. 371.

The decision is eminently reasonable. In Thomas v. Car Co. (1893) 149 U. S. 95, 116, it is said, As a general rule, after property of an insolvent passes into the hands of a receiver or of an assignee in insolvency, interest is not allowed on the claims against the funds. The delay in distribution is the act of the law; it is a necessary incident to the settlement of the estate." The case of Thomas v. Minot (Mass. 1857) 10 Gray, 263, is in point. It was there held that the separate creditors of an insolvent partner were not entitled to interest, but the surplus should be applied in liquidation of the claims of the firm creditors.

CRIMINAL LAW-FORMER CONVICTION-VERDICT. On an indictment for larceny the defendant pleaded a former conviction for the same crime. There was no conflict in the evidence, and, on inspecting the record, the judge charged the jury they must return a verdict for the State. The jury in the face of his instruction returned a verdict for the defendant. Held, an order setting aside the verdict was valid; for the plea of former conviction did not go to the merits of the case, and the trial of the issue

did not place the defendant in jeopardy. State v. Ellsworth et al. (N. C. 1902) 42 S. E. 699.

As a rule, a verdict for the defendant in a criminal trial is absolutely final. Otherwise all further proceedings would be open to the objection that the defendant had once been placed in jeopardy. But the trial of the issue of former conviction is an inquiry into the nature and result of a former action against the defendant. No answer of the jury can convict him. Even if against him, the case must still be heard on its merits. Thus the reason for the rule fails, and the verdict should not necessarily be final. See State v. Hager (1900) 61 Kan. 504; Martha v. State (1855) 26 Ala. 72.

EMINENT DOMAIN-INJURY TO BUSINESS. Held, injury to an established business is not a taking of property in such a sense as to entitle its owner to compensation under a constitutional provision that private_property shall not be taken for public use without just compensation. Sawyer v. Commonwealth (Mass. 1902) 65 N. E. 52. See NOTES, p. 112.

EQUITY RAILWAY MORTGAGES-PREFERENTIAL DEBTS. The intervenor sold car wheels to the A railway company, in accordance with a previous course of dealing, on 60 days' credit, with knowledge that the purchaser intended to use them on the B road, of which it was the lessee. One year later bondholders filed a bill for foreclosure of a mortgage on the A road securing their bonds, and a receiver was appointed. Held, the intervenor stood in the position of a general creditor only, and its claim was not to be preferred to those of the bondholders and other secured creditors. Southern Ry. Co. v. Ensign Mfg. Co. (C. C. A., 4th Circ. 1902) 117 Fed. 417.

More than six months prior to the appointment of a receiver, a railway company bought jackscrews from the intervenor, for use upon a line of which it was the lessee. Within six months prior to such appointment, it bought jackscrews for use upon its own line. Held, the claim for the second sale was to be preferred to the claim of mortgage creditors, but that for the first was not to be so preferred. Southern Ry. Co. v. Chap. man Jack Co. (C. C. A., 4th Circ. 1092) 117 Fed. 424. See Nотs, p, 11. EQUITY-SPECIFIC PERFORMANCE OF BUILDING CONTRACT. The plaintiff conveyed land to the defendant railroad. Part of the consideration was the defendant's covenant to erect and maintain on this land a station of a certain character. Held, specific performance would be decreed as the terms of the contract were definite, the building was to be on the defendant's land, and the plaintiff would have no adequate remedy at law for the loss of the expected collateral benefit. Murray v. Northwestern R. Co. (S. C. 1902) 42 S. E. 617.

As early as Year Book 8 Ed. IV. 4. it was held that specific performance of a contract to build could be decreed. But the adequacy of the plaintiff's remedy at law, as he could get the work done by someone else, as well as the difficulty of supervision, afterwards led the courts to refuse to take jurisdiction in the case of an ordinary building contract. Errington v. Aynesly (1788) 2 Bro. Ch. 341; Lucas v. Commerford (1790) 3 Bro. Ch. 165. Where, however, the building is to be done on land conveyed to the defendant as consideration the plaintiff can get the expected benefit in no other way; and in such cases the courts do not find insurmountable the difficulty that supervision of the construction or even of indefinite maintenance is involved. Hood v. N. E. R. Co. (1869) L. R. 8 Eq. 666; Gregory v. Ingewesen (1880) 32 N. J. Eq. 199; Lawrence v. Saratoga Lake R. Co. (1885) 36 Hun, 467; Jones v. Parker (1895) 163 Mass. 564.

INSURANCE-ALIEN ENEMY-SEIZURE BY ENEMY'S GOVERNMENT BEFORE BEGINNING OF WAR-PUBLIC POLICY. August 1, 1899, a British subject insured gold of a Transvaal corporation during transit to England, "against arrests of all kings, princes, and peoples whatsoever." October 2, the gold was seized by the Transvaal authorities. October 11, war broke out. Held, as seizure antedated the war, this was not insurance

of an alien enemy, and the insurer was liable, public policy not being a ground for extending the rule against insuring alien enemies to cover seizure in contemplation of war. Janson v. Driefontein Consolidated Mines, Lim't'd, [1902] A. C. 484.

Conway v. Gray (1809) 10 East, 536, held that an alien assured could not recover for seizure by his own government. Aubert v. Gray (1862) 32 L. J. Q. B. 50, held that this principle applied, if at all, only to seizure during or in contemplation of war. The present case overthrows what is left of the doctrine. The House of Lords takes sound ground in limiting public policy as a basis of judicial decision, and the result is in line with Richardson v. Mellish (1824) 2 Bing. 229; the case must be taken as limiting the scope of public policy as laid down, contrary to the advice of the majority of the judges, in Egerton v. Brownlow (1853) 4 H. L. C. I.

INSURANCE-BENEFICIARY AND INSURER-DEATH IN SAME DISASTER-BurDEN OF PROOF. A member of a fraternal beneficial association named his wife as the beneficiary. Should the beneficiary die before the insured, the by-laws of the order provided that the fund should be paid to the insured's next of kin. Insured and beneficiary perished in the same disaster. Held, on interpleader, the burden is on the representative of the beneficiary to prove that she survived her husband; otherwise the fund goes to the insured's next of kin. Middeke et al. v. Balder et al (Ill. 1902) 64 N. E. 1002.

This undoubtedly is in accord with the great weight of authority. Southwell v. Gray (1901) 35 N. Y. Misc. 740; Cade v. Head Camp, etc. (1902) 67 Pac. 603. But it is open to criticism. The designation, by the by-laws, of the next of kin as beneficiaries in the alternative, is part of the contract of insurance. They do not take by descent, because, if this alternative were not provided for, and the insured after the death of the first beneficiary should fail to designate another, the fund would go to the beneficiary's representative. Thomas v. Cochran (1899) 89 Md. 390; Hooker v. Sugg (1889) 102 N. C. 115. Therefore, the next of kin being beneficiaries in the alternative, the prima facie right is in the designated beneficiary, and the burden should be upon the next of kin to prove the prior death of the wife. Cowman v. Rogers (1891) 73 Md. 403.

INTERNATIONAL LAW-EXTRADITION. In habeas corpus proceedings it appeared that the prisoner was arrested and held for extradition to England for an offence alleged to have been committed at Johannesburg, in the Transvaal, on or before January 1, 1900, and before Lord Roberts' proclamation of annexation. Held, (1) the court may go behind the assertion of territorial jurisdiction contained in the complaint; (2) the South African Republic was not within the territorial jurisdiction of England prior to the proclamation; and (3) the provision in the treaty of 1889 for extradition for offences "committed within the jurisdiction" of either party does not include offences committed in territory prior to its acquisition. In re Taylor (D. C., D. Mass. 1902) 118 Fed. 196.

The result reached is in line with former constructions of extradition treaties, giving to the term "jurisdiction " a narrow definition, established by the executive rather than by the judicial department. In re Joseph Stupp (1873) II Blatch. 124 and note; 1 Phill. Internat. Law, 413. It would seem, however, that the quality of extradition as a mere process has not been sufficiently noticed. An extradition treaty is not a criminal statute requiring strict construction.

MUNICIPAL CORPORATIONS-MISCONDUCT OF MEMBERS OF CITY COUNCIL. Held, in letting a contract for the improvement of streets, the board of aldermen of a city acts in an administrative, and not in a legislative capacity, and hence its action may be collaterally attacked on the ground of bribery. Field v. Barber Asphalt Pav. Co. (C. C., W. D. Mo. 1902) 117 Fed. 925.

While the general rule, that the courts will not investigate the motives of the legislature in the enactment of statutes, Fletcher v.