technicality in the administration of the funds of the estate, the situation of the remaining members of the family dependent upon the stranger or corporation for their very existence often becomes very awkward and embarrassing to say the least. With the widow or some other member of the family acting as executrix or administratrix without bond, these and many other disagreeable and expensive features of the administration of estates by strangers or trust companies are avoided and the family affairs move on after the death of the decedent without interruption or annoyance.

Our conclusion is therefore that the profession should as often as opportunity presents, enlighten the public mind on the disadvantages and embarrassments that arise when trust companies are appointed to act as executors or guardians. Whether it would be wise to seek legislative interference in this regard, as some attorneys have suggested, is to be gravely doubted. The motives of the profession would certainly be misconstrued and misunderstood. But it is certainly advisable, also, in drawing a will for a client, to point out the respective advantages of having a trust company to administer any trust which the testator may create by his will as well as that of having the widow or some other member of the family appointed to carry the estate through the period of administration.

PROFESSOR FRANCIS M. BURDICK, of the Columbia Law School, in a scholarly article entitled "Recission for Breach of Warranty," in the Columbia Law Review for January, takes issue with a recent statement by Professor Samuel Williston, of the Harvard Law School, that "though the text writers have not generally recognized the fact, nearly as many courts have followed the Massachusetts rule as have followed the English law;" cases from Alabama, California, Iowa, Louisiana, Kansas, Maine, Missouri, Nebraska, North Dakota, Ohio, and Wisconsin, being cited in support of this assertion.

"The Massachusetts rule," says Professor

Burdick, "is stated by Metcalf, J., as follows: 'He to whom property is sold with express warranty, as well as he to whom property is sold with implied warranty, may rescind the contract for breach of warranty, by a seasonable return of the property, and thus entitle himself to a full defense to a suit brought against him for the price of the property, or to an action against the seller to recover back the price, if it has been paid to him."" ... Does a breach of warranty, using the term in the narrow sense of a promise collateral or subsidiary to the main purpose of the sale contract, give to the buyer the right to revest title and possession in the seller without the latter's consent? The Massachusetts rule answers the question in the affirmative. The English law answers it in the negative.

After examining the cases cited as following the Massachusetts rule, Professor Burdick sums up as follows:

The result of this re-examination of the cited cases is this: In but two jurisdictions (Iowa and Maine) have the courts unequivocally adopted the Massachusetts rule. Even if we suppose that the habit of repeating as a dictum the terms of that rule has become so inveterate in Alabama, Missouri and Wisconsin, as to justify the belief that the courts of those States will follow it, when the question is squarely presented, we have but five jurisdictions following the lead of Massachusetts. On the other hand, the learned. writer of the article in question enumerates sixteen jurisdictions which have followed the English rule. To these should be added, as we have seen, California and North Dakota, and also Hawaii. When we bear in mind that the doctrine of the United States Supreme Court is controlling in every Federal tribunal of the nation, in the absence of local statutes, the preponderance of American authority against the Massachusetts rule is simply overwhelming.

In his second article on "The Expansion of the Common Law," (Columbia Lare Review, January) Sir Frederick Pollock, in his usual scholarly and interesting way, traces

the development of the King's courts, showing how royal justice "became truly national, and preserved the substantial good points of ancient Germanic polity, while it discarded the obsolete forms."

The King's courts, says Sir Frederick, at the outset of their career, came under a rule which we shall find to run through the whole of our legal history, and never to be neglected with impunity. It may be expressed thus: extraordinary jurisdiction succeeds only by becoming ordinary. By this we mean not only that the judgment and remedies which were once matter of grace have to become matter of common right, but that right must be done according to the fundamental ideas of English justice of which we spoke in the first lecture. The Court of Chancery conformed in good time, and prospered; the Court of Star Chamber, warped to political ends, resisted and perished, involving one or two harmless victims in its fall. . . .

For the present purpose we need only to bear in mind the broad fact that in the course of the thirteenth century we find the king's judicial court separated from the king's general council for affairs of State, and further divided into three branches of King's Bench, Common Pleas or Common Bench, and Exchequer. If we are to fix a point where the royal jurisdiction becomes ordinary and of common right, it would seem to be given by the issue of writs in set forms to any one of the king's subjects who will pay the proper fee. The suitor who "purchases" a writ, as the official phrase ran, must of course choose at his peril that writ which will avail him in his particular case. It is no business of the court or its officers to see that he gets the right one. That is part of the fundamental methods of the common law; the party can have the law's help only by helping himself first. On these terms, and not otherwise, it is open to all. But if we must have a date to remember, we still cannot find a better than that of Magna Charta, for the text of the charter shows clearly that the king's justice is no longer a matter of favor, and that not

even any verbal fiction of its being so will be admitted. . .

One court might claim, down to modern times, to represent the king's original personal justice more directly than the superior courts of common law and even the Chancellor. This was the Marshalsea, the special court of the king's household weilding archaic and limited jurisdiction over its members; it does not seem to have had anything to do with the King's Council. Its more obvious defects of jurisdiction were supplemented by a new court, entitled "The Court of the Lord the King, at the Palace of the King at Westminster," created by several letters patent of James I., Charles I., and finally Charles II. These courts appear to have almost escaped professional criticism, partly because their jurisdiction was merely local, partly because their powers followed substantially the course of the common law. At any rate the final charter of Charles II. was not disputed; and the Marshalsea, moreover, rested on the firm ground of prescription. We learn, however, from the only writer on the practice of these courts, that the Palace Court had quite superseded it by the beginning of the nineteenth century at latest; the two courts purported to be opened together, but the Marshalsea did no business. He that would know the true causes of the fall of the Palace Court may find them set down as well in a very useful modern book of reference as by a layman whose name was Thackeray in the Ballads of Policeman X, under the heading of "Jacob Homnium's Hoss: a Pallice Court chaunt." Like most petty local courts the Palace Court became a hotbed of abuses and, although error would lie to the King's Bench, the remedy of a new trial was not available to correct a perverse verdict. Such verdicts were not uncommon, for the juries were apparently drawn from the small tradesmen class, and invariably found for a tradesman plaintiff whatever the evidence and the law might be. The court was abolished in 1849, and therewith, it would seem, the last relic of the only royal jurisdiction which had never passed through

the hands of the Council.

PUBLIC POLICY. (ILLEGAL CONTRACT-PARTNERSHIP-CAMPAIGN EXPENSES OF PARTNER.)

MISSOURI SUPREME COURT.

In Ward v. Hartley, 77 Southwestern 302, the court had before it the validity of a contract between members of a partnership, that the firm should bear the election expenses of one member, who was a candidate for president of the city council. The partners were engaged in the trade of bricklaying and building, and they undertook large contracts, the largest of which were for public works. They were competitors in the market with other concerns for like work.

In holding

that the contract was void as contrary to public policy, the court says it may be true that the mere eclat which the parties supposed would reflect on the firm by the elevation of one of its members to a high office in the city government is all that was contemplated, and it may be that they estimated that distinction as being worth the money they agreed to pay for it, just as many firms indulge in other forms of advertisement. But beyond that, no consideration is perceived for the agreement. The firm could derive no legal advantage from the fact that one of its members was president of the council, and if he had been elected and had faithfully performed his duty the firm would have derived no illegal advantage from his position. Therefore the motive did not sufficiently appear to justify the court in holding that the contract was supported by a legal consideration. The only theory on which direct advantage to the firm could be expected is that the partner, if he had been elected, would have used his official influence to favor his firm over others in like business. This, of course, would be liable to result in detriment to the public service, and would be contrary to public policy.

OF LOCAL

WITNESS. (CALLING BY COURT-BINDING CHAR-
ACTER OF TESTIMONY-VIOLATION
OPTION LAW.)

TEXAS COURT OF CRIMINAL APPEALS. In Goldwater v. State, 77 Southwestern Reporter 221, defendant was prosecuted for violating the local option law. The case was tried by the court without a jury. One witness had given evidence sufficient to sustain a conviction, when the court of its own motion called another witness, who contradicted the first, and whose testimony tended to disprove any violation of law. It was contended that the court, having called this last witness, was bound by his testimony and thereby precluded from convicting. This, it is held on appeal, is not true. His testimony was before the court as that of any other witness, and the court, like a jury, was authorized to believe either witness, and if the testimony of the first was sufficient to sustain a verdict, the conviction must stand.

ACCIDENT INSURANCE. (EXCEPTED CAUSES-THINGS TAKEN INTERNALLY-Spoiled OYSTERS.) TEXAS SUPREME COUrt.

In Maryland Casualty Company v. Hudgins, 76 Southwestern Reporter 745, the clause in an accident insurance policy providing that the insurance shall not cover injuries "resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled, but it is understood that this policy covers injury from choking in swallowing," is construed and held to relieve the company from liability for death occasioned by ptomaine poisoning following the eating of some unsound oysters. The court says that the word "take" means to eat as food, for which definition Webster's dictionary is cited, and that this is particularly true in view of the qualifying clause as to

"choking in swallowing." It is true the policy should be construed most favorably to the insured, but the courts cannot undertake to make a new contract. The plain meaning of the language is that the company is not liable for the injuries which may arise from whatever thing of any kind or character, poisonous or not, which the insured might voluntarily and consciously swallow as food or drink. There is no doubt that the oysters were consciously and voluntarily swallowed by the assured. A large number of cases are cited, and Pollock v. United States Mutual Accident Association, 102 Pa. 234, 48 American Reporter 204, is quoted from to the effect that where a certificate declares that the benefits thereunder shall not extend to death caused by the taking of poison, it is not necessary that the poison should be taken intentionally, even though when taken. innocently it may be said to have been taken accidentally. In conclusion the court says that it is claimed that while the taking of the oysters was not accidental, the eating of spoiled oysters was accidental because unintentional; that the accident consisted in the state of the thing swallowed. Admitting that this shadowy distinction is sound, it does not take the case out of the exception in the policy; for the spoiled oysters were a "thing" which was "taken," and from which the injury resulted, which brings the case within the exception.

ADMIRALTY. (FEDERAL JURISDICTION OVER ERIE CANAL-CANAL BOATS AS VESSELS-REPAIRS IN DRY DOCK-UNCONSTITUTIONALITY OF STATE STATUTE ENFORCING LIEN.)

UNITED STATES SUPREME COURT.

In Perry v. Haines, 24 Supreme Court Reporter 8, Mr. Justice Brown, speaking for the majority of the United States Supreme Court, holds that the admiralty jurisdiction of the Federal courts extends to the Erie Canal, and is exclusive in character. The case arose under an attempt to take advantage of the remedy provided by New York laws, 1897, c. 418 sections 30, 35, for the enforcement in the State courts by proceedings in rem of a lien for repairs made in a dry

The

dock to a canal boat engaged in navigating the Erie Canal and the Hudson River. court says that a State may provide for liens arising from maritime contracts to furnish a vessel with necessaries, such liens to be enforced by proceedings in rem in the United States District Courts. Also for causes of action not cognizable in admiralty, the States may not only grant liens, but may provide remedies for their enforcement. But if the repairs furnished to the canal boat were made under a maritime contract, the denial of exclusive jurisdiction on the part of the admiralty courts to enforce the lien was wrong. This conclusion is reached by first holding that the Erie Canal is a navigable water of the United States. The court says that the old test of tidal effect has long been abandoned. Those rivers must be regarded as public navigable rivers in law which are navigable in fact, and they constitute navigable waters of the United States when they form a continuous highway over which interstate or foreign commerce is carried. The only distinction between canals and other navigable waters is that they are rendered navigable by artificial means, and sometimes, not always, are wholly within a particular State. This, however, creates no distinction in principle. The Avon, Brown, Adm. 170 Federal Cases, No. 680 is cited as an instance in which admiralty took jurisdiction of a collision occuring on a canal in British territory, and a number of English cases of similar import are referred to. Ex parte Boyer, 109 United States 629, 27 L. Ed. 105, 3 Supreme Court Reporter 434, is another instance in which admiralty took jurisdiction of a collision between canal boats occurring in the Illinois and Lake Michigan Canal. In this case it was observed that navigable water used as a highway for commerce between different States was public water of the United States, even though wholly artificial and wholly within the body of the State.

Having secured jurisdiction of the canal, the next question considered by the court is whether canal boats are ships or vessels within the meaning of the admiralty law. It is pointed out that canal boats of from one

hundred and fifty to three hundred tons capacity were used on the canal as late as 1850, and while these boats were vessels of light draught and were drawn by animal power, they were larger than those out of which arose the maritime law of modern Europe, and much larger than those employed by Columbus in his discovery of America. In fact neither size, form, equipment nor means of propulsion are determinative factors upon the question of jurisdiction, which regards only the purpose for which the craft was constructed and the business in which it is engaged. As to the argument that boats on the Erie Canal are drawn by horses, that is said to appeal less to the reason than to the imagination. Boats on their arrival in Albany are relieved of their horses and taken by steamer to New York. To hold that such boats are not within the admiralty jurisdiction while going down the Hudson River, would require the overruling of a large number of cases, while it would seem like "sticking in the bark" to hold that a canal boat might recover for a collision while in tow of a tug, but might not recover while in tow of a horse.

In the third place it was argued that as the repairs to the boat in question were made. in dry dock they were made upon land. This the court is unwilling to admit. A dock is an artificial basin in connection with a harbor, and a dry dock differs from an ordinary dock only in the fact that it is smaller and is provided with machinery for pumping out order that the vessel may be repaired. All injuries below the water line must necessarily be repaired in dry dock, but it has never before been supposed that such repairs were made on land. No authorities were cited on the proposition and the court believes that none exist.

water in

The

fact that the boat was employed wholly in commerce within the State of New York was held to make no difference, the ruling case cited being The Belfast, 7 Wall. 624, 19 L. Ed. 266. Finally the remedy provided by the New York statute is examined and its character determined to be that of a

proceeding in rem, and therefore distinctively a remedy of admiralty.

In a lengthy dissenting opinion concurred in by Chief Justice Fuller and Mr. Justice Peckham, Justice Brewer holds that the contract was made on land, for work to be done on land, which was in fact performed on land, and was therefore not a maritime contract; that the proceeding which was instituted was in its essential features an ordinary proceeding according to the course of the common law, which may always be resorted to, even in respect to contracts which are of a strictly maritime nature; and that the grant to the national government over admiralty and maritime matters does not extend to contracts made in respect to vessels which are incapacitated from commerce and are designed and used exclusively for local traffic within a State. Mr. Justice Harlan also dissents.

The case marks a very interesting extension of Federal jurisdiction and recalls the singular prophecy of Horatio Seymour made during his campaign for the presidency in 1868, that those in his audience might yet live to see the day when the Federal judiciary (of whose power he was jealous) would extend its sway over the Erie Canal.

BLOOD HOUNDS. (FOLLOWING TRAIL-EVIDENCE OF CONDUCT IN CRIMINAL PROSECUTION.)

NEBRASKA SUPREME COURT.

George W. Brott was convicted of burglary. The opinion reversing this judgment is found in 97 Northwestern Reporter, page 593. The crucial point in the case was the admissibility of the evidence of the con duct of blood hounds in following the trail of the burglar from the scene of the crime to defendant's residence. The court holds that the evidence was improperly admitted. It says there is a prevalent belief that in the pursuit and discovery of fugitive criminals the blood hound is practically infallible; that it is a commonly accepted notion that he will start from a place where a crime has been committed, follow the track for miles upon which he has been set, find the culprit, con