is no longer an essential element of the latter. It would be interesting to know how New York, for example, reconciles this provision with its statutory definition of attempt which expressly includes the idea of failure (Penal Law, 1909, § 2). At the same time, there would be an obvious advantage in assimilating attempt, in the present regard, to assault with intent, even at the expense of reforming the legal idea of attempt, for all purposes.

As the case stands all three decisions represent sound application of settled principle. The holdings in People v. Lardner and People v. Crane are the logical complements of each other. As for People v. Mason, the holding there finds its logical complement in the rule announced in Prindeville v. People 42 Ill. 217, which accords with the great current of American authority, that, on a charge of the completed crime, where the evidence, shows only an assault with intent, a conviction for such assault is proper.

R. W. M.

PROPERTY-ESTATES-RULE AGAINST PERPETUITIES.-In the case of Beal v. Higgins 299 Ill. 229, 133 N. E. 658, the limitations in effect were:

[X, testator, to A, her husband, for life, then to B, C (children), and the children of D (a daughter-in-law), for life], then to the heirs of B, C, and the children of D (the heirs of each to have the share of the particular ancestor), for life, then to the heirs of the heirs of B, C, and the children of D (the heirs of each to have the share of the particular ancestor), for life, then the fee over.

Of these limitations it appears the parties conceded that all but those in the first three clauses of the will (those of the first three clauses are set off above in square brackets) were invalid as contravening the rule against perpetuities, and the only question for the court to decide was whether the invalidity thus conceded, of the last three clauses, invalidated the whole will.

It is the object of this comment to inquire if the parties did not in fact concede too much when they conceded that all following the square brackets above was invalid. Particular reference is to the limitation above, "then to the heirs of B, C, and the children of D."

Under the rule of the following cases, it would seem that that limitation would be good if the language had been: "then to the heirs of B, C, and D." (Brown v. Brown 247 Ill. 530: X to A for life, then to A's children for life, then to B; Anderson v. Williams 262 Ill. 315: X to trustees to pay income to A for life, then to A's surviving children or grandchildren until their majority, then to the survivors in fee; Drury v. Drury 271 Ill. 339: X to A for life, then to A's heirs of body, but if A dies without child or children, then to great-grandchildren of X; Wood v. Wood 276 Ill. 166, 169, 170, 171: X to A for life, then to named children and grandchildren for life, then to children of said named children and grandchildren in fee, and if any of said named children and grandchildren die without children, then to those surviving of said named children and

grandchildren, and if certain two of said named children and grandchildren die without children, then to other of said named and their descendants. In that case the court suggested that a limitation, X to descendants of the named children and grandchildren for life, remainder to their descendants, would have been bad; Hopkinson v. Swain 284 Ill. 23: X to A for life, then to A's children; Haughn v. Haughn 296 Ill. 306, 308: X, grantor, to A for life, then to A's children, but if A has none, then to children's children and heirs of another.)

The sole question, then, is as to the effect upon the fourth limitation, of the term "children" as it appears in the third limitation, to-wit, the one to B, C and the children of D. And that raises again the question, not raised in the principal case, however, whether "children" means any children whenever born, or only such children in being at the testator's death, for if it means the former, then the succeeding limitation is based on a life possibly not in being, and is bad, whereas if it means the latter, the fourth limitation is good.

Upon that question reference may be made to Dustin v. Brown 297 Ill. 499, where the limitation was: X to A for life and after her death to her children and their descendants forever, and the court held that a child born before the death of X, who died after X's death and before A's death, had a vested interest with possession only postponed, but subject to have his share diminished to let in after-born children. Within the effect of that case "children," as used in the will involved in the principal case, would embrace lives not in being. But one wonders if the term should not be so construed as to render the provision valid, instead of invalid (Guerin v. Guerin 270 Ill. 247; McCutcheon v. Pullman 251 Ill. 555; Heisen v. Ellis 247 Ill. 428), and the same rule of construction applied here that would apply where a limitation over was upon death "without children" (Smith v. Dellitt 249 Ill. 116; Williamson v. Garnes 284 Ill. 529; Cole v. Cole 292 Ill. 170). In any construction of it, however, it would follow that the fifth and sixth limitations are bad (Dime Savings Co v. Watson 254 Ill. 422: X to living nephews and nieces and twenty-one years after death of last surviving nephew or niece to X's grand-nephews and grand-nieces; Moroney v. Haas 227 Ill. 471: X to A in trust for B and children until they arrive at 25 years of age.) E. M. L.

BLUE SKY LAW-CRIMINAL LAW-SALES.-In a prosecution for unlawful selling of securities in violation of the provisions of the Blue Sky Law, the Supreme Court held in the case of People v. Hill Top Mining Co. 300 Ill. 564, that where the application for stock is forwarded for acceptance without the state and such application is in fact accepted without the state and the stock mailed to the purchaser, no sale takes place within the state of Illinois upon which a prosecution for violation of the Blue Sky Law can be predicated, although the money for the purchase was given to the agent of the corporation, who transmitted said application and money to the company without the state and afterwards received a

commission for such sale. The court, in arriving at this conclusion, said:

"The contention of plaintiff in error that the securities in question were not sold by him and that the sale was not made in Illinois must be sustained. Under the evidence in this case the sale was not completed or made until the securities were mailed to Ginsberg by Fife at Kansas City, and the sale must be held to be a sale at Kansas City. Sales of personal property, whether made to the vendee personally or ordered by letter, are regarded as made at the place where the vendor shows his assent to the proposal by delivering the goods to a carrier for the vendee, in the absence of any agreement of the parties or any special circumstances showing to the contrary."

The court, however, indicates that had a proper count been added for unlawfully offering the certificate for sale, a different question would have been presented for decision.

The holding of the court is in harmony with the great weight of authority in this country upon the general question of the place where a sale is made. See 23 R. C. L. Sec. 69. Heretofore this question has received frequent consideration from the court in prosecutions for the illegal sale of intoxicating liquors.

In view of the almost universal existence of Blue Sky Laws in the various states of the United States, it is satisfying to find the court giving recognition to the well-settled principles of sales law in connection with the construction of the Blue Sky Law.

PAUL E. PRICE.

PARENT AND CHILD-OBLIGATIONS OF PARENT TO SUPPORT— EFFECT OF DIVORCE.-"It has been held in this state that in cases where a divorce has been granted with custody of children to the mother and a gross sum had been allowed her as alimony, such a situation does not release the father from his legal liability." The above is part of the text in the opinion recently handed down in Panther Creek Mines v. Indus. Com. 296 Ill. 565 on page 566, 130 N. E. 321. The rule thus stated, it appears, is the law not only in Illinois, but in the country at large: Plotke v. Plotke 177 Ill. App. 344; Umlauf v. Umlauf 35 Ill. App. 626; Plaster v. Plaster 47 Ill. 292; Lewis v. Lewis 174 Cal. 341; Wilkins v. Wilkins 84 Neb. 210; Kane v. Kane 53 Mont. 525; Auer v. Auer 193 S. W. 926 (Mo. App.). But the element present in most of the applications for additional allowance on the children's account is that such application usually is presented by the parent (mother) who was recipient of the gross amount in lieu of alimony, and the question arises whether such additional allowance, while ostensibly for the children, will in fact go to increasing the allowance to the parent presenting the application.

And that suggests two considerations-First: The lump settlement disposition of the rights of the wife, in the absence of any provision in the decree by which the wife undertook as a condition to the payment to her of that sum, to relieve the husband of the support of the children, would not have that effect as a settlement

of the wife's right alone. Second: If the decree in which the lump sum provision appears, provided, also, that it was partly in consideration of the wife's assuming the support of the children in release of any obligation of the father thereto, how would that affect the statement of the rule by which this comment is introduced?

In view of the theory upon which the authorities above set forth are based, and from which the first consideration above suggested directly proceeds, it must follow that where the applicant for additional allowance for the children is not the wife (assuming she was recipient of the lump sum) under the hypothesis contained in the second consideration, the rule is still fully applicable in its text as stated. For the theory is that the public is directly interested in the welfare of the children; the obligation in the father to support them is one owing not to the children so much, or to the wife, but to the public, so that a contract with the wife releasing the husband from obligation to support them can have no efficacy except as against the person with whom the contract was made. And that consideration, it is submitted, would call for the same conclusion whether the application was made by a person other than the mother or by the mother herself, the mother, in such application, acting purely (in theory at least) in a vicarious relation, and in legal contemplation being charged to expend no portion of any allowance received in any way for her own support.

And that suggests another angle. The authorities seem to hold that the mother's right in the matter of her children is different from that of the father; that the mother's right, the father being dead, is that of one in loco parentis only, and that the father's right exists irrespective of any de facto relationship of parent and child. Thus it is held under that theory that a mother is not authorized to make contracts relative to the child's services, the father being dead, and is not entitled to the child's earnings unless the child consents to become her servant, i. e., enters into a de facto relationship. (Pray v. Gorhan 3 Me. 240;Conn. v. Murray Binney, 492.) Consonantly with that position, it is held that the mother is not obligated to support the child unless she has an estate (Jannes v. Emerson 15 N. H. 486-488), but if she does support the child she is entitled to his earnings. Illinois, however, and some other jurisdictions, take a different view of it, and hold that upon the father's death the mother succeeds to his rights and obligations respecting the children: Bradley v. Sattler 156 Ill. 607-608; Newton v. Cooper 79 S. E. 356 (Ga. App.); Trinity County Lumber Co. v. Connor 187 S. E. 1020 (Tex. Civ. App.).

It would seem to follow that as the divorce severs the marital relationship, a decree that gives the custody of the children to the mother and provides that she shall support them thereby works a condition legally the same, so far as this obligation is conceived, as if the father had died. That would follow if the right to earnings, the obligation to support, and the right to custody go hand in hand, as was held in Brown v. Smith 19 R. I. 319; and that would seem to have been the burden of the decision of Husband v. Hus

band 67 Ind. 585. Under that position, in those jurisdictions where the mother's right never transcends that of any third person (i. e., the right exists only where she is in loco parentis), of course, the father's obligation to support the child cannot be affected by any contract that the mother may make with him. But what of those jurisdictions which, like Illinois, recognize a larger right in the mother than that which any third person may have? If the action of the divorce decree does more than pass the bare guardianship of the child to the mother, if it carries with it also the custody in the sense of the power of controlling the child's upbringing, its schooling, its social and religious training-if it carries with it the right to its earnings, then it would follow the decree has extended the divorce to a legal severance of father and child, and no further obligation by the father to support the child remains, the court having finally disposed of that issue in that decree.

The situation raised by the court's interference in a family relationship is a delicate one at the best. It is true that considerations of public policy advise rendering the parents liable to support their children. But the inquiry as to what the law upon that liability, unaffected by statute, is, is quite another problem. The authorities seem to agree that the mother is not obligated; and this because she is not entitled. Then come a few authorities that depart from that rule from considerations, it seems, of public policy, and say she is entitled and also obligated, in the absence of the husband. In all consistency, shall these authorities go still further, and say that the husband may be held to the obligation, though bereft of all right? E. M. L.

CARRIERS-INSURANCE-DOUBLE INDEMNITY UNDER ACCIDENT INSURANCE POLICY.-In Rathbun v. Ocean Accident & Guarantee Corporation, 299 Ill. 562, 132 N. E. 754, suit was brought under the terms of an accident insurance policy which provided that if the injuries causing death were incurred while the insured was traveling in a public conveyance or "in a public carriage provided by a common carrier for passenger service," the amount of the indemnity was doubled. The insured was killed in a collision between a railroad train and an automobile hired by the deceased from proprietors of a garage. At the time of the accident, the deceased himself was driving and one of the garage owners was with him in the car.

The Supreme Court held that the question to be decided was not whether the garage owners were common carriers in other service furnished, but whether they were common carriers in the particular service that was being rendered to the deceased at the time that the accident occurred. A common carrier differs from a private carrier in two important respects: (1) a common carrier is obliged by law to undertake the charge of transportation to all who apply to them for carriage so long as they have room, while a private carrier merely undertakes to deliver goods or passengers in a particular case for hire or reward; (2) a common carrier is in effect an insurer, while a private carrier is liable only as an ordinary