It is well settled that the statute of limitations does not run against the state. In view of this, the sound principle would seem to be that the statute does not run against a municipal corporation when it acts for the state in enforcing rights for the benefit of the general public, in contradistinction to when it acts in a private capacity or for the benefit of a locality. See 15 HARV. L. REV. 846. Similarly, the statute should be held inapplicable to any public corporation performing duties in behalf of the state in the administration of government. See Simplot v. Chicago, etc., Ry. Co., 16 Fed. Rep. 350, 361. When a state adopts a common free school system, a public corporation invested in pursuance of this policy with the title and care of schools and schoolhouse sites would seem to be an auxiliary of the state in the administration of education, and hence a manager of the property for the benefit of the public, though the exercise of its duties may chiefly benefit the inhabitants of a locality. Accordingly, the statute of limitations should not run against it. See Board of Education v. Martin, 92 Cal. 209.

PREFERENCES

BANKRUPTCY STATUTES REQUIRING RECORDING OF TRANSFERS. - A chattel mortgage was given for an antecedent debt by an insolvent more than four months before bankruptcy proceedings, but was recorded within the four months. § 4150 of the Ohio Revised Statutes, 1906, made unrecorded mortgages invalid against creditors. § 60 a of the Bankruptcy Act, as amended in 1903, provides that the period of four months does not expire, where the preference consists in a transfer, until four months after the recording, "if by law such recording or registering is required." Held, that the Ohio statute "requires" recording within the meaning of the Act. Loeser v. Savings Deposit Bank & Trust Co., 148 Fed. Rep. 975 (C. C. A., Sixth Circ.).

Two cases dealing with somewhat similar statutes held that, since unrecorded transfers were valid between the parties themselves, recording was not "required" within the meaning of the Act. Myers, etc., Co. v. Pipkin, etc., Co., 136 Fed. Rep. 396; In re Hunt, 139 Fed. Rep. 283. The court in the present case bases its decision on the other extreme view that recording is "required" whenever necessary to give validity to a transfer as against any class of persons. It is believed, however, that the cases are reconcilable, since in the present case creditors, as well as bona fide purchasers, are protected by the recording statute against unrecorded transfers, while by the statutes in the other cases creditors were not; and "required," as used in the Act, may be fairly said to mean 66 required in order to be good against creditors." It seems proper thus to go behind the prima facie meaning of the words of the Act, for, since no statutes make an unrecorded transfer entirely void, any other result would render the provision in the Act of no effect. Cf. Barlow v. Ross, 24 Q. B. D. 381. Under this interpretation the present decision seems sound, and its result is supported by authority. English v. Ross, 140 Fed. Rep. 630; First Nat'l Bank v. Connett, 142 Fed. Rep. 33.

BANKRUPTCY

PROVABLE CLAIMS GOODS OF OTHER PERSONS IN POSSESSION OF BANKRUPT. The plaintiff bought goods and left them in the possession of the vendor for purposes of sale. Later the vendor became bankrupt with the goods still in his hands. Held, that, though the goods passed to the trustee in bankruptcy by the express words of the English statute, the plaintiff may prove for their value. In re Button, 51 Sol. J. 373 (Eng., Ct. App., March 26, 1907).

Though this case comes up under the English Bankruptcy Act, which provides expressly that the title to goods in the order or disposition of the bankrupt shall pass to the trustee, it seems that a similar question may arise in this country under § 70 a (5) of our act, which provides that any property which might have been levied on will pass to the trustee. For example, it would seem that in those jurisdictions where the creditors of a conditional vendee are preferred to the vendor, the vendee's trustee in bankruptcy would take title to the goods. So the trustee of an ordinary vendor would take in those states which hold that retention of possession is such conclusive evidence of fraud

that his creditors may have the goods sold. It being clear, then, that the title would pass to the trustee in these instances, the same reasons for allowing the owner to prove would exist here as in England; for the "order and disposition" clause of the English statute and the American law governing conditional vendees and retaining vendors have the common object of preventing fraud, and if the penalty will be mitigated in England to the extent of allowing proof, it might also be done here.

BANKRUPTCY PROVABLE CLAIMS UNLIQUIDATED DAMAGES FOR TORTS. The plaintiffs, having a claim for unliquidated tort damages, sought to liquidate and prove their claim against the defendants' bankrupt estate. They contended that § 63 6 of the Act of 1898, providing for the proof of unliquidated damages, applied to torts, and that § 17, as amended in 1903, excepting certain tort liabilities from discharge, established this interpretation. Held, that the claim is not provable. Brown & Adams v. United Button Co., 149 Fed. Rep. 48 (C. C. A., Third Circ.).

Even before 1903, § 63 b gave rise to the view that unliquidated damages for torts could be proved. See Beers v. Hanlin, 99 Fed. Rep. 695. But the history of bankruptcy legislation shows that this sub-section refers to provable unliquidated mercantile claims enumerated in sub-section 63 a. The first national bankruptcy act of 1800, in order to avoid the harshness of the English bankruptcy laws, which disallowed unliquidated contractual claims, provided in § 58 for their liquidation and proof. Cf. Ex parte Charles, 14 East 197. And the later federal acts contained similar provisions. But proof was not extended to unliquidated tort claims in the absence of express statutory provisions. In re Schuchardt, 15 N. B. R. 161. This was the better interpretation of the present act prior to the amendment of § 17 in 1903. In re Hirschman, 104 Fed. Rep. 69. This amendment, however, by excepting "liabilities " for certain torts from discharge, implies, if "liabilities" includes "unliquidated damages," that unliquidated damages for torts in general are provable, since only provable claims need be excepted from discharge. Cf. Graham v. Richerson, 8 Am. B. Rep. 700. But § 17 may be harmonized with the better doctrine of the original act by construing "liabilities" as meaning only liquidated tort liabilities, namely, judgments, which are conceded to be provable claims. Howland v. Carson, 16 N. B. R. 372.

BANKS AND BANKING DEPOSITS - RIGHTS OF DEPOSITOR UPON SUBDEPOSIT BY DEPOSITARY BANK. In order to stifle competition, several banks made an agreement by which bank A submitted the highest bid for county funds and thereby secured the deposit. Following out the agreement, bank A deposited a certain part of the county funds received by it with the other banks. Bank A failed. Held, that the county may recover the sums on deposit in the other banks in preference to the trustee in bankruptcy of bank A. In re Blake, 150 Fed. Rep. 279 (C. C. A., Eighth Circ.).

This decision affirms that of a lower court, commented upon in 20 HARV. L.

REV. 140.

BILLS AND NOTES-Defenses TIME GIVEN PRINCIPAL JOINT MAKER. — The defendant signed a joint and several note, intending to become a surety, as the payee knew. The payee made a binding contract with the principal for an extension of time without the defendant's knowledge, and the latter claimed to be discharged. He did not allege that the payee accepted him as surety. Held, that he is not discharged. Vanderford v. Farmers & Mechanics Nat'l Bank, 66 Atl. Rep. 47 (Md.).

In England the granting of an extension of time by a holder who knew that one maker was only a surety, discharged such surety in equity. Fentum v. Pocock, 5 Taunt. 192. By statute the equitable plea is now good at law. Pooley v. Harradine, 7 E. & B. 431. In the United States the general rule has been that the surety was discharged at law as well as in equity. See 2 AMES, CAS. ON BILLS AND NOTES, 82, n. 2. But it seems that when courts of law cannot hear equitable pleas the law should not recognize the discharge, since it

is strictly a matter of equity, the surety being legally bound as joint and several maker. New Jersey has followed this strict line of differentiation. Anthony v. Fritts, 45 N. J. L. 1. Maryland, also, has not admitted the plea at law, except possibly when the payee has agreed to regard the defendant as surety. Owings v. Baker, 54 Md. 82. The Negotiable Instruments Law, adopted in Maryland, makes no provision for the peculiar facts of this case, but seems to leave the law unchanged by providing that a person primarily liable is discharged, inter alia, "by any act which will discharge a simple contract for the payment of money." See CRAWFORD, ANN. NEG. INST. LAW, § 200 (4).

CARRIERS - BAGGAGE — LIABILITY FOR LOSS OF BAGGAGE UNACCOMPANIED BY OWNER. - The plaintiff checked trunks on the defendant railroad, intending to follow in person some days later. The baggage was destroyed in the railroad's hands after arrival at its destination. Held, that the defendant is subject to greater liability than a gratuitous bailee. McKibbin v. Wisconsin Cent. Ry. Co., 110 N. W. Rep. 964 (Minn.).

The more recent cases have seemed to hold that, in general, the carrier's liability for loss of baggage is that of a gratuitous bailee unless the passenger is on the train with his trunks. Wood v. M. C. R. R. Co., 98 Me. 98; cf. 17 HARV. L. REV. 354. But the present decision greatly modifies this sweeping doctrine. In the previous cases the parties checked trunks either without buying a ticket or, if buying one, without intending to use it in the near future. But when the owner intends to follow his trunks, on the same ticket and on the same journey, another question is presented. In this situation it would seem that the carrier should incur full liability. Chicago, etc., R. R. Co. v. Fairclough, 52 Ill. 106; contra, Laffrey v. Grummond, 74 Mich. 186. Under the modern system of travel it will frequently happen that a passenger will not be on the same train with his baggage, especially if the trunks are checked through a transfer company. Similarly, the carrier is held liable if through its fault baggage is checked over a different route. Isaacson v. N. Y., etc., R. R. Co., 94 N. Y. 278. The circumstances may sometimes be such as to hold the carrier liable for the trunk as freight. Wilson v. Grand Trunk Ry., 57 Me. 138.

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CARRIERS DISCRIMINATION AND Overcharge OFFENSES OF SHIPPERS UNDER ELKINS ACT. - Two indictments lay against the defendant under the Elkins Act. One alleged that, the established through rate for the transportation of petroleum from Olean to Rutland via the Pennsylvania Railroad and three connecting carriers being 19 cents per hundred pounds, the defendant accepted a rate of 16.1 cents per hundred pounds for the transportation of petroleum from Olean to Rutland via the Pennsylvania Railroad and two connecting carriers. The other indictment alleged that the defendant accepted a rate of 17 cents per hundred pounds for the transportation of petroleum from Olean to Burlington, when it knew that the carrier refused to transport petroleum for competitors from places near Olean to Burlington for less than 33 cents per hundred pounds. The defendant demurred to both indictments. Held, that the demurrers be overruled. United States v. Standard Oil Co. of New York, U. S. Dist. Ct., W. D. N. Y., April, 1907. See NOTES, p. 635

CONFLICT OF Laws Assignment oF CONTRACTS EFFECT IN FOREIGN STATE OF FAILURE TO RECORD. A citizen of Michigan, engaged in business there, made in Connecticut an unrecorded assignment of all future book accounts and bills receivable. By Connecticut law assignments of future earnings are not valid against creditors of the assignor unless recorded; by Michigan law no recording is necessary. Bankruptcy proceedings were instituted in Michigan against the assignor. Held, that the assignment is valid against creditors. Union Trust Co. v. Bulkeley, 150 Fed. Rep. 510 (C. C. A., Sixth Circ.). See Notes, p. 637.

CONFLICT Of Laws - TESTAMENTARY SUCCESSION — VALIDITY OF TRUST PERFORMABLE Outside JurISDICTION OF CREATION. A testatrix, domiciled in the District of Columbia, devised realty there situated to a New York cemetery company, which was to hold it in trust for certain persons for life, and then

to convert it into securities and to use the income therefrom in keeping a New York cemetery lot in perpetual order. One section of the code of the District of Columbia expressly permits a domestic cemetery association to take and to hold such a gift; but a later section provides that, except for a gift to a charitable use, every future estate shall be void in its creation which suspends the power of alienation beyond prescribed limits. Under New York law the trust could be administered. Held, that the provisions in the will are valid. Iglehart v. Iglehart, 27 Sup. Ct. Rep. 329.

See, for a discussion of the principles involved, 19 HARV. L. Rev. 457; 20 ibid. 382.

CONSTITUTIONAL LAW-CLASS LEGISLATION - LEGISLATION AFFECTING ONLY CORPORATIONS. A statute required that “railroad and other corporations" answer in damages for injuries to employees caused by superior servants. Held, that the statute is unconstitutional, because it imposes a burden on corporations different from that on natural persons doing business under the same circumstances, and that it cannot be sustained as an amendment to the incorporation laws, because it is applicable to foreign as well as domestic corporations. Bedford Quarries Co. v. Bough, 80 N. E. Rep. 529 (Ind., Sup. Ct.). See NOTES, p. 634.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - RIGHTS INFRINGED BY ACTION OF INDIVIDUALS. The defendants took a prisoner from the custody of state officers and lynched him. They were indicted under a federal statute providing for the punishment of persons who should conspire to prevent or hinder the free exercise or enjoyment by any citizen of any right or privilege secured to him by the Constitution or laws of the United States. Held, that the demurrer to the indictment be sustained. United States v. Powell, 151 Fed. Rep. 648 (Circ. Ct., N. D. Ala., N. D.).

This case overrules a previous decision by the same court, criticized in 18 HARV. L. REV. 391. The view of the court is unchanged, but it considers itself bound by a dictum of the United States Supreme Court uttered meanwhile. See Hodges v. United States, 203 U. S. 1.

CONSTITUTIONAL LAW-POWERS OF JUDICIARY - REFUSAL TO IMPOSE STATUTORY PENALTY. - A statute made it unlawful "to take on board of any steamer a greater number of passengers than is stated in the certificate of inspection. After the destruction of San Francisco, the agents of a steamship about to leave sold tickets to more persons than was permitted. Though the ship's officers exercised due diligence to prevent violation of the law, ticketholders in excess of the lawful number boarded the ship unnoticed and were not discovered until after sailing. Held, that the steamship is not liable for the statutory penalty. The Charles Nelson, 149 Fed. Rep. 846 (Dist. Ct., W. D. Wash., N. D.).

The court seems to have considered that, in the extraordinary circumstances under which this voyage was undertaken, it was vested with a discretion to refuse to impose the statutory penalty. But a court can neither extend a statute to meet a situation which it does not include, nor, if the situation fairly falls within the provision, restrict the scope of the statute to avoid injustice. Stevens v. Ross, I Cal. 94; The Sam Slick, 2 Curt. (U. S.) 480. Where the act prohibited is one commonly involving moral turpitude, courts frequently relieve the apparent harshness of penal statutes by interpreting them as requiring that a guilty mind co-exist with the act. The Queen v. Tolson, 23 Q. B. D. 168. But that interpretation is not usually made when the statute is in the nature of a police regulation. People v. Kibler, 106 N. Y. 321. That it was the legislative purpose to make an absolute prohibition in the present case is shown by the provision giving the Secretary of the Treasury power to remit such penalties. U. S. REV. STAT., § 5294. However, the result in the principal case may be upheld, since the thing forbidden is strictly the act of taking on board, and that act does not seem to have been committed.

CONTRACTS BY PROMISEE.

- DEFENSE OF IMPOSSIBILITY PERFORMANCE PREVENTED

- The promisor agreed to supply the promisee with stone which the contract contemplated would be taken from a quarry leased to the promisee, but which was obtainable elsewhere. Owing to the promisee's neglect, the lease ran out before performance was possible, and the promisor was dispossessed. The promisee sued the promisor's surety for non-performance. Held, that the promisor was not prevented from performing, and that the surety is liable. United States v. Conkling & The Fidelity, etc., Co., 37 N. Y. L. J. 129 (C. C. A., Second Circ., March, 1907). See NOTES, p. 643.

CONTRACTS- DEFENSES INCREASED RISKS. — The plaintiffs had agreed to serve as seamen on board a vessel carrying coal, and to go to any port between certain degrees of latitude. At the time of the contract, war had been declared between two foreign powers and coal had been made contraband. On learning that the vessel was bound to a belligerent port, though between the stated degrees of latitude, the plaintiffs refused to continue the voyage, and, on their return home, sued for wages. Held, that wages are recoverable down to the date of the judgment. Caine v. The Palace Shipping Co., 23 T. L. R. 203 (Eng., Ct. App., Dec., 1906).

For a discussion of the principles involved, see 19 HARV. L. REV. 462.

CRIMINAL LAW DEFENSES JUDGMENT FOR FINE ABATED BY DEATH OF DEFENDANT. One P. was convicted of giving rebates, and judgment was entered against him for $6,000 in fines. Subsequently to the judgment P. died. Held, that the judgment be declared abated. United States v. Pomeroy, U. S. Circ. Ct., S. D. N. Y., Feb. 27, 1907.

There seems to be no direct authority, other than this decision, as to whether, after judgment in a criminal action imposing a fine, the death of the defendant avoids such judgment. It has been held, however, that when a statute makes a penalty payable to the injured party, such payment cannot be enforced by his executor. Reed v. Cist, 7 Serg. & R. (Pa.) 183; cf. Darlington v. Roscoe, 96 L. T. R. 179. The reason is that the fine is not regarded as compensation, but as a purely personal right to enforce a penalty. This reason should apply equally to the present case. If the fine were regarded as a compensation to the state the defendant's estate should be liable. But the fact that this is a criminal action in which the defendant's guilt must be proved beyond a reasonable doubt negatives this idea, since an action for compensation requires only a preponderance of evidence. Assuming, therefore, that the fine imposed was punitive, since it became impossible to inflict the punishment on the defendant, there would seem to be no reason why the burden should fall on his estate.

CRIMINAL LAW-FORMER JEOPARDY- IDENTITY Of Offenses. - The defendant was convicted, under § 1 of the Sherman Anti-Trust Act, of a combination in restraint of interstate commerce, and, under § 2, of an attempt to monopolize a part of interstate commerce. Held, that the offenses are not identical. United States v. MacAndrews and Forbes Co., 149 Fed. Rep. 836 (Circ. Ct., S. D. N. Y.). See Notes, p. 642.

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EMINENT DOMAIN FOR WHAT PURPOSES PROPERTY MAY BE TAKEN ELECTRIC POWER PLANT. — In an action to condemn land the plaintiff alleged that it had obtained a franchise to supply a certain community with electric light, heat, and power, and that it was necessary to take the property in question in order to perform the service. Held, that the complaint sufficiently shows the plaintiff's right to condemn. Shasta Power Co. v. Walker, 149 Fed. Rep. 568

(Circ. Ct., N. D. Cal.).

The condemnation of property for other than a public use is unconstitutional. Matter of Tuthill, 163 Ñ. Y. 133. It has been held that to constitute a public use the public itself must take control of the property. Board of Health v. Van Hoesen, 87 Mich. 533. This doctrine, however, is ordinarily modified by simply requiring that the public be benefited to a sufficient extent. Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694. It is now generally held that