liability. But in the principal case there was no indorser, and B, the drawer and forger, was not entitled to any notice. No loss having been occasioned by the delay, notice given the day after payment was within a reasonable time and sufficient to entitle the plaintiff to recover the money paid. A similar result has been reached in New York. Goddard v. Bank (1850) 4 N. Y. 147.

PLEADING AND PRACTICE-JOINT Debtors-JOINDER OF EXECUTOR. Four parties were joint makers of a note. Plaintiff sued three survivors, and joined with them the executor of the fourth maker, deceased, relying on N. Y. Code Civ. Proc. § 758, which provides that the "estate of a person jointly liable upon a contract with others shall not be discharged by his death." Held, the executor could not be joined without proof of the insolvency of the survivor. Potts v. Dounce (1903) 173 N. Y. 335.

At common law death terminated the liability of the deceased on a joint contract, but equity always gave a remedy against the obligor's estate when the survivor was insolvent or the execution against his property was returned unsatisfied, 1 Pars. Cont. 30, Parsons on Partnership 350, Pope v. Cole (1873) 55 N. Y. 124, except that where the deceased was a mere surety there was no recovery in law or equity. Risley v. Brown (1876) 67 N. Y. 160; U. S. v. Price (1850) 9 How. 83. The principal case decides in effect that S 758 of the code gives the same remedy against the estate of the deceased at law as was always given in equity. Matter of Robinson (1899) 40 App. Div. 23, and Merrill v. Blanchard (1896) 7 App. Div. 167, are to the same effect. But the court says that $758 must be regarded as making a material alteration in the law, and as imposing a liability where none existed before." That might be true in the case of a deceased surety. Risley v. Brown, supra; U. S. v. Price, supra.

PROCEDURE-CONTEMPTS-PURGING BY OATH. After a petition in involuntary bankruptcy had been filed, on rule to commit the bankrupt for contempt, consisting of failure to turn over all his assets to the trustee, to which the bankrupt answered under oath, denying that he had failed to turn over all his property, it was held, the court might, notwithstanding this, commit him for contempt. In re Shachter (D. C., N. D. Ga. 1902) 119 Fed. 1010. See NOTES, p. 348.

REAL PROPERTY-MORTGAGES-FIXTURES. A mortgaged a factory with the fixtures and machinery twice. Thereafter B placed in the factory certain machines under a hire-purchase agreement. The machines were placed upon concrete foundations and bolted down to prevent oscillation. A then mortgaged the premises to C. Later the second mortgagee entered into possession, and subsequently B served upon A notice of nonpayment of machine hire and demanded possession of the machines. Thereafter C acquired all the rights of the first and second mortgagees. B brought this action against C for the possession or value of the machines. Held, B could not recover. Reynolds v. Ashby & Son [1903] 1 K. B. 87.

The case is fully supported by the English rule that the machines became part of the realty and that B's license to remove them was revoked by the entry of the second mortgagee under whose right C was allowed to retain the machines. The courts of Massachusetts and Delaware hold the rights of a prior mortgagee a good defence. Meagher v. Hayes (1890). 152 Mass. 228; Watertown S. E. Co. v. Davis (Del. 1876) 5 Houston 192. In Maine neither mortgage would form a defence. Tapley v. Smith (1840) 18 Me. 12. In the other jurisdictions C would be allowed to defend on the third mortgage.

REAL PROPERTY - POWERS - EXTINGUISHMENT OF POWERS. Trustees charged, amongst other duties, with the maintenance of a lunatic, were given a power of sale. Held, the duration of this power, if it is not invalid because of the law against perpetuities, is a question of intention. The power is not determined so long as the lunatic is unable to call for a conveyance, even though he has become absolutely entitled to the property. In re Jump, [1903] 1 Ch. 129.

The accomplishment of the purposes for which the power is given extinguishes the power. For this reason the merger of the fee simple sometimes extinguishes the power. In the principal case, however, the testator's intention clearly was to provide for the lunatic. While the lunatic might, if he were competent, demand the fee simple, his insanity prevents him from doing this and leaves unaccomplished the complete fulfillment of the testator's purpose-the lunatic's maintenance. The power is, therefore, unextinguished. The case is well supported by In re Lord Sudeley, [1894] Ch. 334, and In re Cotton's Trustees (1882) 19 Ch. D. 624, which hold that intention controls. It must be distinguished from cases of trust for the purposes of sale. In re Tweedie (1884) 27 Ch. D. 315. Several cases apparently in conflict are distinguishable on the ground of intention, as pointed out in Sugden on Powers (6th ed.) II. 509. Cf. Wheate v. Hall (1810) 17 Ves. 80.

RECEIVERS COST OF RECEIVERSHIP POWER TO ADJUDGE AGAINST COMPLAINANT. The authorized costs and expenditures of a receiver in the management and sale of mortgaged property exceeded the proceeds of the sale of the property. Held, the court, having expressly retained jurisdiction over the subject matter and the parties until the final settlement of the receiver's accounts, could render judgment for the deficit against the complainant at whose request the receiver had been appointed. Chapman v. Atlantic Trust Company (1902) 119 Fed. 257.

A receiver being an officer of the court and his authorized expenses and compensation being part of the costs of an action, it would seem to be within the plenary powers of a court of equity to impose them where it sees fit. While as a general rule the receiver looks to the subject matter of the section for reimbursement, this discretionary power of the court has been generally recognized. Howe v. Jones (1885) 66 Iowa 156; Farmers Nat. Bank v. Backus (1898) 74 Minn. 264; Hughes v. Link Belt Machinery Co. (1900) 95 Ill. App. 323. There is little authority upon the exact point decided in the main case. Knickerbocker v. McKindley Coal Co. (1897) 67 Ill. App. 291; Ephraim v. Pacific Bank (1900) 129 Cal. 589; accord. Farmers Loan Co. v. Or. Pac. R. R. Co. (1897) 31 Ore. 237,

contra.

STATUTES-CUSTOMS LAWS - FORFEITURE of Smuggled GOODS-RIGHt of DEFRAUDED VENDOR TO RECLAIM. Plaintiff, at Antwerp, was induced by fraudulent representations to sell diamonds to H. The diamonds were seized by customs officers while H was attempting to smuggle them into the United States. Plaintiff tendered the amount paid him by H, and claimed the right to rescind the sale to H because of fraud, and to reclaim the diamonds. Held, plaintiff could not recover the diamonds. 581 Diamonds v. U. S. (C. C. A., 6th Circ. 1903) 119 Fed. 556.

The statute provides "that if any owner, importer, consignee, agent or other person" shall attempt to evade duties the goods shall be forfeited. The position of the court is that notwithstanding H's fraud and his vendor's (plaintiff's) consequent right to rescind the sale, title and possession had vested in H and made him "owner " within the terms of the statute. The court admits the hardship to the plaintiff, but says "to permit secret claims of ownership to be asserted after forfeiture would be in plain violation of the written law." But the true owner may reclaim goods seized while in the hands of a thief or trespasser attempting to smuggle. U. S. v. 1150 Pounds of Celluloid (1897) 82 Fed. 627; U. S. v. 208 Bags of Kainit (1889) 37 Fed. 326; Cargo ex Lady Essex (1889) 39 Fed. 765.

TAXATION-TRANSFER TAX-BANK DEPOSITS OF A NON-RESIDENT Decedent. The testator was a resident of Illinois and a statute of that State subjected all his personal property to an inheritance tax. He left a large sum in New York deposited on call, and had a debt owing him by a New York firm. The New York transfer tax was imposed upon these items. Held, no constitutional right was violated thereby. Blackstone v. Miller (1903) 188 U. S. 189.

The decision gives federal sanction to numerous opinions of the New York Court of Appeals. In Matter of Bronson (1896) 150 N. Y. 1, it was held that bonds of a domestic corporation in possession of a non-resident decedent were not subject to the tax, but shares of stock in such a corporation were; in Matter of Whiting (1896) id. 27, that bonds of a foreign corporation, owned by a non-resident decedent but physically present in New York, were taxable; in Matter of Houdoyer (1896) id. 37, that deposits of a non-resident in a domestic trust company were subject to the tax. The principle involved is that the tax, being on the transfer rather than upon the property itself, State v. Dalrymple (1889) 70 Md. 294, may be imposed wherever the laws of the imposing jurisdiction must be invoked to enforce the transfer. It is no constitutional objection that double taxation may result.

TORTS-NEGLIGENCE-VIOLATION OF STATUTE. The plaintiff, a child of thirteen years, was employed by the defendant to work on a printing press. The N. Y. Labor Law (sec. 70) provides: "A child under the age of fourteen years shall not be employed in any factory in this State," and makes such employment a misdemeanor. The plaintiff was injured while working around the machine. The plaintiff having shown only the breach of the statute and the injury, a nonsuit was granted in the trial court. Held, the breach of the statute constituted evidence of negligence te be considered by the jury together with the question of the child's contributory negligence. Marino v. Lehmaier (1903) 173 N. Y. 530. See NOTES, p. 344.

WILLS-MARSHALLING ASSETS. A will contained a general direction for payment of debts. It then created two pecuniary legacies, and made two specific devises. The undisposed of personalty and realty proved insufficient to pay the debts. Held, the pecuniary legatees were entitled to have the assets marshalled so that, as against the specific devisees, they might stand in the place of creditors in so far as their legacies had to abate in order to satisfy estate debts. In re Roberts, [1902] 2 Ch. 834.

Obviously such marshalling can be proper only when the devised land is charged with the payment of debts. Aldrich v. Cooper (1802) 8 Ves. 381; Foster v. Cooke (1791) 3 Bro. C. C. 347; Rickard v. Barrett (1857) 3 K. & J. 289. The English Courts have gone very far in construing a direction to pay debts as a charge on lands devised, and have established the rule that where lands are given to executors for conversion into a trust fund, together with a general direction to pay testator's debts, these are charged on the land. In re Tanqueray-Willaume (1881) 20 Ch. D. 465. The present decision, though an advance, is supported by dicta in In re Stokes (1892) 67 L. T. 223 and In re Salt [1895] 2 Ch. 203, which purported to overrule In re Bate (1890) 43 Ch. D. 600. Probably neither the principal case nor In re Tanqueray-Willaume, supra, would be law in America, where the rule is, that an intention to charge land with either debts or legacies must be plainly manifested. Hoes v. Van Hoesen (1848) I N. Y. 120; Graham v. Little (N. C. 1848) 5 Ired. Eq. 407; Seaver v. Lewis (1817) 14 Mass. 83.

BOOK REVIEWS.

STUDIES IN JURIDICAL LAW. BY Horace E. Smith. Chicago: T. H. Flood & Co. 1902. pp. xxvi, 359.

It would be a pleasure to give unqualified commendation to these essays of the late Dean of the Albany Law School. The ripened product of a cultivated mind and a sage understanding, betraying wide reading and much reflection on the problems of law and government, the book is, nevertheless, a disappointment. The truth is that with all of its merits, its sanity of view and clearness of statement, it belongs back in the Blackstonian period of our legal thought, back of Thayer and Pollock and Maitland, back of Holmes and Holland, back even of Maine and Austin. It betrays no knowledgeof the literature of general jurisprudence, English or foreign, and it is free from any trace of influence from the speculations of the great German jurists of the last century.

These might not be fatal defects if the book were an original contribution to legal science, the result of independent thought and based on a new view of legal relations. But this it does not claim to be. It is avowedly orthodox and, from its definition of "law" in the first chapter to its description of feudalism in the sixteenth, follows steadfastly in antiquas vias. Its authorities are Blackstone, Kent and Bouvier for definition and classification, and Reeve, Palgrave, Spelman and Guizot for history. Of course, this does not exhaust the list of authorities consulted and cited, but it is fairly representative of the tone and attitude of the work.

Though for the most part written in direct and straightforward manner, there are some inexplicable infelicities in arrangement and presentation of the subjects treated, as in the curious repetition of the argument for the support of government by its citizens in sections 33 and 42, and in the discussion of modern trusts and combinations in the chapter on the Mosaic Code (Sec. 104).

And yet, with all this, the book is not one to be contemned. It is one of a class of works, too rare in our country, in which the fundamental principles of law and government are subjected to analysis. As an essay in legal classification, it leaves much to be desired, but it is through such attempts that we shall one day find ourselves possessed of a legal system. The naiveté of its analysis of rights and wrongs, as compared with that of Langdell, or of Holland and his school, is obvious enough, but every attempt at such an analysis is a clue out of the labyrinth of precedents.

The two concluding chapters on the Plea of Insanity and on Literary Property and International Copyright are much the best part of the book, but bear no relation to its general purpose.

CASES ON CRIMINAL LAW. Part I. By William E. Mikell. Philadelphia International Printing Company, 1902. pp. 1-504.

This collection of cases is intended for use as a text-book in teaching the principles of the substantive law of crimes, and the author has based his method of selecting and arranging cases upon

principles now accepted by the leading law schools of the country as sound. The collection is composed of both English and American cases, about one-third of them being English. Most of them are reprinted in full without explanatory notes, and without the attempts at abridgment which so often impair the usefulness of the case book as an implement in teaching law by the case system. When portions of cases are omitted, the fact has been noted. There are numerous foot-notes collating the authorities and dealing with topics of minor importance not covered by the selected cases.

The avowed purpose of the work is to present the law as it is to trace its growth and to indicate its future development. It is gratifying to note, however, that there is no attempt to make the collection purely illustrative. Many of the cases selected do not represent the law and thus ample material is afforded for developing the student's power of analysis and discrimination. The day has passed when it was necessary to advance any arguments to justify the use of cases of this character in any scholarly plan of legal education. As a whole the work is a worthy one, and we have no hesitancy in commending the author for it. Faults there are, none of them, however, of sufficient weight, in our opinion, to counterbalance the general merit of the work as planned. Perhaps the most serious criticism to be passed upon it is the infrequency, though not the absence, of the very early English cases which serve as points of departure in the development of legal principles. A more generous use also might well have been made of selection from such classics as Coke, East, Hale and Hawkins. They breathe the atmosphere which enveloped the beginnings of our criminal jurisprudence and at this day serve as authoritative expositions of the law at a time when the methods of reporting were clumsy and inadequate. Nor can we subscribe to the author's method of classification which seems to us by its very excessiveness to defeat, to some extent, the purpose of the work. Why, for example, arrange the cases relating to the criminal act in seven distinct classes and thus deprive the student of the valuable training which he would acquire in making his own classification with the aid and under the guidance of the instructor

It may be doubted whether the author's plan of dealing with consent and condonation before taking up the subject of criminal intent and the criminal act is advantageous. Indeed, the effect of consent in the majority of cases cannot be determined without a thorough understanding of those essential elements in the crime.

The use of Pennsylvania cases which outnumber those of any other State in the ratio of three to one gives to the work a local color which will to some extent detract from its usefulness in the law schools of other States. The part now published deals only with the general principles of substantive Criminal law. Part II. which is in course of preparation will treat of specific crimes only. The complete work will therefore not include cases on procedure, extradition or the general subject of jurisdiction.

THE ELEMENTS OF THE LAW OF NEGOTIABLE INSTRUMENTS. By John W. Daniel and Charles A. Douglass. New York: Baker, Voorhis & Company. 1903. pp. xxxiv, 418.