powers of nature. The modern tendency is to lean in favor of control where possible, and these "minerals feræ naturæ," as the Pennsylvania courts have called natural gas and petroleum, are well worth controlling. On the other hand, it is a difficult matter to say what use of percolating water, oil, or natural gas is and what not injurious to the .rights of others; and the courts may well hold, as the Pennsylvania court has done, that they will not run the risk of too much control for the sake of a doubtful benefit.

JUDICIAL NOTICE-WAIVER OF Sovereignty.—In Mighell v. The Sultan of Johore, a very recent English breach of promise case, the defendant has procured the judgment of the Court of Appeal confirming the dismissal of the action. Mr. Justice Wright, before whom the case originally came in chambers, inquired of the Marquis of Ripon, Secretary of State for the Colonies, concerning the defendant's status, and received the answer that Johore was an independent State, and the defendant (Mr. Albert Baker) its reigning sovereign. So far the case follows Taylor v. Barclay, 2 Sim. 213. The next step is interesting. The plaintiff endeavored to go into the evidence upon the subject, and cited a case in which the courts of Malacca had held that the defendant's predecessor was liable to be sued. In The Charkieh, L. R. 4 Ad. & Eccl. 59, Sir Robert Phillimore had based his decision, that the Khedive of Egypt was not a sovereign, upon general history, firmans, treaties, and an answer of the Foreign Office, devoting the larger part of his judgment to the first three grounds, but fortunately reaching the same conclusion as the Foreign Office. Hence, the plaintiff's counsel argued, the court ought to investigate the question, and decide the status of Johore for themselves. But Lord Esher, M. R., delivering the unanimous judgment of the Court of Appeal, disposes of this first point. The declaration of the Queen's Secretary of State is final; behind it the Queen's judges do not go.

The case furnishes a good illustration of the nature of judicial notice. The judge does not decide upon what he believes to be the fact, or upon what he knew about at the hearing, but a fact which from its nature can be ascertained without the assistance of counsel or pleadings is finally decided by another branch of the government, in whom by recognized principles of public law the decision of that question rests. The precise point to be decided is not the fact of sovereignty, but the relation of comity, which, independent of any facts, creates the exemption of the person recognized as a friendly sovereign. And the decision of that question by (in this case) the Colonial Office is final.

The plaintiff's second point is a weak but suggestive one. The argument was that the Sultan, by residing in England incognito, and there winning the plaintiff's affections, had waived his sovereignty and submitted to the jurisdiction of the courts; that he could not, in the language of Sir Robert Phillimore in The Charkieh, "assume the character of a trader, and when he had incurred an obligation to a private subject, throw off his disguise, and claim for the first time all the attributes of his character." It may well be doubted whether the alliance of a sovereign is not an act of State over which the courts should not take jurisdiction even when the defendant waives his right. But even if it be a private act, there is no force in any estoppel or waiver which can make a sovereign not a sovereign, or bar him from insisting upon his rights at all

times. The assumption of a right to estop is as great a step as any. Once take the jurisdiction to do that, and there is no ground for refusing to go on. On the strict principle of international law it would seem that in an action in personam by or against a foreign sovereign, a court act as arbitrators, without power to enforce his obedience; for even after judg ment his extra-territoriality should not be violated by a friendly State. In an action in rem, on the other hand, jurisdiction, once obtained over the rem, might well subsist. See The Charkich (cited supra); United States v. Wilder, 3 Sumner, 308.

BREACH OF PROMISE. Such cases as Mighell v. The Sultan of Johore, Van Houten v. Morse (Mass. S. J. C. 1893), Delia Keegan v. Russell Sage, and Zella Nicolaus v. George Gould (N. Y.), and the evidence which they furnish of many other such cases settled out of court, do not show much justification for the action for breach of promise. Anomalous, practically an action of tort with heavy punitive damages claimed and often given, and used sometimes as a method of blackmail, sometimes as a means of expressing the indignation of all good jurymen against faithless swains, it forces the courts into a commercial view of what cannot properly be regarded as a matter of trade or dicker. It brings feelings not properly the subject of judicial investigation into undue publicity, and serves seldom as a real remedy for breach of legal obligation. Some years ago Lord (then Sir Farrer) Herschell proposed in the House of Commons, and Sir Henry James seconded, a resolution that "The action for breach of promise of marriage ought to be abolished, except in cases where actual pecuniary loss has been incurred by reason of the promise, the damages being limited to such loss." Here, in the United States, where a remedy and a punishment for seduction are generally provided, it would be interesting to have some one State at least adopt the spirit of this resolution. The similarity to other mutual agreements originally led the courts into allowing the action. As a fresh matter to-day it might well be doubted whether the commercial spirit is sufficiently apparent in the exchange of promises to show an intention of creating a contract in the sense in which contracts are enforced by the courts. The action seems peculiar to the common law.

If it is not to be abolished, at least the proof of the promise should be regulated. There is a serious lack of consistency in requiring written proof of a contract of sale of goods worth fifty dollars or so, and allowing a woman to recover forty thousand dollars or more on her own parol testimony, strenuously denied by the man. Yet such is the law.

MEANING OF 66 HIGH SEAS." - The Supreme Court, in United States v. Rodgers, has recently decided that the description, "high seas," in section 5346 of the Revised Statutes, gives jurisdiction to the Federal courts over the Great Lakes. The decision is based on the general use of the term in international law, and so has a wider interest than a mere interpretation of a statute. Justices Brown and Gray dissented, taking the position that "high seas means only such waters as are open as of right to the commerce of the world.

In England the phrase "high seas was used as practically co-extensive with the admiralty jurisdiction. But the fact that the Great Lakes are within the admiralty jurisdiction of the United States is not vital in

this case. This statute is to be construed as originally enacted in 1790. But down to 1851 it was not supposed that the Great Lakes were a part of the admiralty jurisdiction. The Genesee Case, 12 How. 453, in that year, finally settled that the Great Lakes were so included. The decision, then, can be reduced to the assertion that in 1790 a definition of these words would have covered the lakes, even though at that time they were not supposed to be within the grant of admiralty jurisdiction.

The Constitution gives Congress power to define and punish piracies and felonies committed on the high seas. Under this clause, could the United States undertake to punish a piracy committed on the Canadian half of Lake Superior? If it is a "high sea," such would seem to be the conclusion. Again, may European nations claim, on the established principles of international law, the right to maintain a fleet on Lake Michigan? Of course, such consequences are not to be seriously contemplated. The suggestion serves, however, to bring out the point that in the opinion of the court the term "high seas " has reference rather to the magnitude and commercial importance of the waters than to the rights of the nations of the world over them. Lake Michigan, though entirely within the territorial limits of the United States, and exclusively under its control, is nevertheless a "high sea So far statute is concerned.

as this

RECENT CASES.

ADMIRALTY MARITIME LIEN - PROCEEDINGS IN REM IN STATE COURTS. Hill's Code, § 3690, so far as it authorizes a proceeding in rem in the State courts to enforce a lien for necessary supplies furnished a vessel in her home port, is invalid, as it contravenes the Constitution of the United States, art. 3, § 2, and the Revised Statutes of the United States, §§ 563, 711, which give exclusive jurisdiction of such proceedings to the district courts of the United States. Portland Butchering Co. v. The Willapa, 34 Pac. 689 (Or.).

For a similar decision on this point see 7 HARVARD LAW REVIEW, p. 119.

AGENCY EMPLOYER'S LIABILITY - Risk of THE EMPLOYMENT. The plaintiff, who was employed by the defendant as a blacksmith, was suddenly called from his work by one of the foremen of another department to assist in hoisting a heavy smokestack which was in position ready to be raised. The tackle being improperly adjusted, the stack fell and injured the plaintiff. Held, that the question was properly submitted to the jury to determine whether "the hoisting required peculiar skill or knowledge to perform it with safety;" the material point being whether the plaintiff under all the circumstances had sufficient experience to understand the hazards of the extra work which he was required to perform. Coal Co. v. Hannie, 35 N. E. Rep. 162.

For a discussion of the application of the maxim" Volenti non fit injuria, " on which this case turns, see Beven on Neg. (1st ed.) p. 329 et seq. See also 14 Am. and Eng. Encyc. of Law (1st ed.), p. 861. About all that can be said about the doctrine and its application will be found in the opinion of the Law Lords in Smith v. Baker [1891], App. Cas. 325.

BILLS AND NOTES · ANOMALOUS INDORSER JOINT MAKER. — Held, that a person who indorses a note before its delivery to the payee is presumed to assume the obligation of a joint maker, and that evidence of a contrary intention is not admissible as against an innocent transferee for value. Salisbury v. First National Bank, 56 N. W. Rep. 727 (Neb.).

The position of an anomalous indorser is in this case for the first time decided in Nebraska. There seem to be at least three distinct lines of decisions on this point. One class, including the majority of jurisdictions, holds, as in this case, that the obligation of the indorser is presumably that of a joint maker. This view is sustained by the following cases: 95 U. S. 90; 9 Ohio, 139; 99 Mass. 179; 35 N. J. Law, 517.

Other cases consider that the indorser, under these circumstances, is in the position of a guarantor. See 17 Ill. 459. A third class holds that he assumes merely the obligation of an ordinary indorser. This view seems to be the nearest in accordance with the intention of the parties, but it is adopted by only a few courts. See 19 N. Y. 227; 67 Pa. 380; 4 Sneed, 336. In a suit between the original parties to the note, parol evidence is almost everywhere allowed to rebut the presumption, and show the real intention of the parties as to the obligation assumed.

BILLS AND NOTES — INTEREST UPON A BOND AFTER Maturity.- Held, where a bond specifies less than the statutory rate of interest, it draws only that specified rate after maturity. Elmira Co. v. Elmira, 25 N. Y. Supp. 657.

Parties may agree upon the rate of interest to be paid on overdue paper, and the sum agreed upon is liquidated damages. So where the obligation is to bear interest at a certain rate "until paid," interest will everywhere be allowed after maturity at the specified rate. Taylor v. Wing, 84 N. Y. 477. But where the agreement as to interest is in such general terms as not clearly to indicate what rate is to prevail after maturity, the whole question then becomes one of construction of the contract, and upon this construction there is a great conflict of authority. In Holden v. Trust Co., 100 U. S. 72, the court held the statutory rate should prevail on overdue paper, even when the rate expressed in the contract was higher. I Sedg. Dam. (8th ed.) §§ 325-330, adopts the same view, and it is there said: "To imply a promise to pay the stipulated rate after maturity is. to introduce into the contract a provision which the language does not cover, and to violate both the principles upon which interest is given and the rules governing the interpretation of written instruments." One may perhaps question whether the parties could have intended a less rate of interest after the breach of their contract than before, and upon this ground may allow the stipulated rate to prevail after maturity, as in Cecil v. Hicks, 29 Gratt. 1, and Brannon v. Hursell, 112 Mass. 63, where it was greater than the statutory rate. But where it is less, to say that it shall prevail after maturity is not only to imply a promise, but to imply one which the parties would never have adopted. Though the New York decisions are not harmonious upon the point involved in the principal case, there are recent dicta in the Court of Appeals contrary to the result the case reaches; and we submit that it cannot be supported. O'Brien v. Young, 95 N. Y. 430; Ferris v. Hard,`135 N. Y. 365.

- ACCEPTANCE OF TICKET.

CARRIER'S LIABILITY For Loss of BAGGAGE - Plaintiff's mother engaged passage on defendant's steamship for herself and plaintiff a week ahead, and received the ticket the day before the ship sailed. On the ticket was printed, in large type, "Cabin Passenger's Contract Ticket," and it was evident that it contained stipulations and regulations relating to the journey. One of these stipulations limited the liability of the company for goods including baggage to an amount not exceeding 10. This was relied upon by defendants in the action brought for loss of plaintiff's box. Held, that the acceptance of such ticket by plaintiff constituted an assent to its stipulations, though neither she nor her mother read them, since they had ample time to read them and object to the stipulations before the ship sailed. Wheeler v. Oceanic Steam Nav. Co. Limited, 25 N. Y. Supp. 578.

The court emphasizes the fact that plaintiff had ample time to read the conditions on which the ticket was issued, and, following Zimmer v. R. R. Co., 137 N. Y. 460, distinguishes this kind of contract from cases of mere express or transfer companies, where the paper is delivered in a hurry, presumably without time to read and assent to the contents. In such cases the receipt is a mere voucher to enable the passenger to follow his property. In Fonseca v. Steamship Company, 153 Mass. 555, the court is of the opinion that the purchaser of a ticket, as in the principal case, must be considered as assenting to the stipulations on the ticket, and thereby making a valid contract, but that in Massachusetts a contract of this kind would be declared void as against public policy.

CONSTITUTIONAL LAW-MUNICIPAL ORDINANCES GIVING ARBITRARY DISCRETION.-By a city ordinance it was unlawful to carry on a tannery within the city limits without a permit from the common council, which they had discretion to grant or refuse upon a hearing of the parties. Held, the ordinance is unconstitutional. In order to be valid, it should have specified rules and conditions for the conduct of tanneries, instead of giving the common council arbitrary power of determining to whom the permits should be granted. City v. Schultheis, 35 N. E. Rep. 12 (Ind.).

One class of cases holds such ordinances invalid, because so unreasonable that the legislature could never have meant to authorize them; another, because the legisla

ture could not authorize them constitutionally. In the principal case the question discussed is evidently one of legislative power. Probably the result reached was neces sary in Indiana, in view of the previous case of City v. Dudley, 28 N. E. Rep. 312 (Ind.). That case relied mainly on Baltimore v. Radecke, 47 Md. 217, and Yick Wo v. Hopkins, 118 U. S. 356. In the former the question was not of legislative power, but of authorization of the municipality by the legislature. The court said, "We are of opinion there may be a case in which an ordinance passed under grants of power like those we have cited is so clearly unreasonable, so arbitrary, oppressive, or partial, as to raise the presumption that the legislature never intended to confer the power to pass it, and to justify the courts in interfering and setting it aside as a plain abuse of authority." Yick Wo v. Hopkins held that an ordinance making it illegal to carry on a laundry in any wooden building in San Francisco without the consent of the supervisors was invalid, since it was not within the legislative power under the fourteenth amendment. "The ordinance does not prescribe a rule and conditions for the regulation of the use of property," said the court in that case. This expression has formed the basis of some subsequent decisions like City v. Dudley and the principal case, just as though final discretion under a legislative grant implied a grant of arbitrary power. In Yick Wov. Hopkins the administration of the ordinance was, as the court held, sufficiently partial and bad to render the indictment in that case void by the fourteenth amendment under the doctrine of Ex parte Virginia, 100 U. S. 339, even though the ordinance was fair on its face. Although the absence of "regulations" is no doubt mentioned, the bad administration of this ordinance aimed directly at the Chinese seems to have been what really swayed the minds of the court. Especially does this seem clear in view of the case of Crowley v. Christensen, 137 U. S. 86, where the court held a city ordinance vesting discretion to grant licenses to sell liquor in the police commissioners constitutional. The ordinance in the principal case granted a hearing to all applicants for licenses to carry on tanneries. The discretion lodged in the common council was final, but how it was arbitrary seems hard to see. Final discretion must be lodged somewhere, and here it was in the common council. Beyond a doubt, if they refused to listen to an application, a mandamus would lie to compel them to pass upon the matter. The ordinance may have been unwise, but it is submitted that it was not beyond the province of the legislature to empower the city to pass such an ordinance vesting absolute discretion in the common council in the interest of the public health. To declare legislation unconstitutional whenever it is unwise is at once to transcend judicial authority, and to render the legislature utterly irresponsible as to the effect of its acts.

St. 1892,

CONSTITUTIONAL LAW REGULATION OF RAILWAYS BY STATUTE. c. 389, requiring railroads to accept mileage tickets issued by other roads, which are to be redeemed when presented to the road issuing them, held unconstitutional, because (1) it enabled one railway to prescribe the conditions on which another shall carry passengers, and (2) it required a railway to take passengers on the credit of another road to which the money has been paid. Attorney-General v. B. & A. R. R., 35 N. E. Rep. 252 (Mass.). Holmes and Knowlton, JJ., dissent.

CONSTITUTIONAL LAW-WEEKLY PAYMENT OF WAGES BY CORPORATIONS. Held, that an act declaring that certain corporations "shall pay weekly each and every employe engaged in its business the wages earned by such employe to within six days of the date of such payment," and forbidding contracts for other times of payment, is unconstitutional, within the Constitution, art. 2, § 2, as depriving persons, without due process of law, of the property right of making contracts. Braceville Coal Co. v. People, 35 N. E. Rep. 62 (Ill.). See 7 HARVARD LAW REVIEW, p. 300.

BENEFICIARY —

ATTACHMENT.

CONTRACTSWhere a policy of insurance is taken by a married woman on her own life for the benefit of her husband, and she pays the premiums out of her separate estate, the husband's interest in the policy on her death is purely equitable, and the insurance company cannot be charged as the husband's trustee or garnishee at the suit of his creditors. Nims v. Ford, 35 N. E. Rep. 100 (Mass.).

The husband had an equitable, not a legal claim against the company, and therefore his interest could not be garnisheed. In New York, where the "real party in interest may bring the action," the interest would be a legal claim, and therefore could be garnisheed, an instance in which the Code of Civil Procedure would substantially affect the rights of the parties.

CORPORATIONS - RECEIVERS

PRE-EXISTING MORTGAGES. The receiver of a water-works company has power to charge the corporate property to raise money to