and that the highway should be restored so as not to impair its useful ness. The whole construction of the road was delegated to an independent contractor, who negligently failed to put lights on an embankment thrown up on the highway, in consequence of which the plaintiff driving along the highway ran into it and was injured. The court expressly disapproved of a prior New York decision on this point and held that the defendant was liable. Deming v. Terminal Ry. of Buffalo, 169 N. Y. 1. It has been thought that the employer is not liable on such a state of facts. Smith v. Simmons, 103 Pa. St. 32. Other courts have reached the result of the principal case on the grounds taken in the municipality cases. Gray v. Pullen, 5 B. & S. 970. This reasoning is tenable wherever the statute granting the license has in fact imposed affirmative precautionary duties. Unless such positive duties are imposed the analogy perhaps fails. There is, however, another ground upon which the liability may rest. It is well recognized that if what the employer contracts for is a public nuisance he is not relieved by the fact that it is created by the independent contractor. Ellis v. Sheffield, etc., Co., 2 E. & B. 767. An excavation or obstruction in the highway is per se a nuisance. So far as it is authorized by law it is of course not actionable. It remains a nuisance, however, and, in so far as it is not surrounded by the precautions which are required by the statute or which ought reasonably to be taken, any injury resulting therefrom is actionable. Woodman v. Metropolitan R. R. Co., 149 Mass. 335; Colgrove v. Smith, 102 Cal. 220. In this way the desirable result of the principal case is reached, whether or not there be express statutory requirements.

SEVERANCE OF CHATTELS FROM THE REALTY BY A Disseisor. - To the layman it seems obvious that if a disseisor cuts down and carries away trees from the disseisee's land, the latter should at once be able to recover the logs or their value directly. According to the authorities, however, such is not the law, and under such circumstances before a recovery of the land neither trover, replevin, nor assumpsit will lie for the severed realty. Lehigh, etc., Co. v. New Jersey, etc., Co., 55 N. J. Law 350; Anderson v. Hapler, 34 Ill. 436; Bigelow v. Jones, 10 Pick. (Mass.) 161. A recent case suggests the question anew holding that the disseisee cannot recover either the logs or their value. Clarke v. Clyde, 66 Pac. Rep. 46 (Wash.). No class of cases better illlustrates the important part which the ancient doctrine of seisin still plays in the modern law. The reasons usually stated for the rule are, it is true, the undesirability of trying title to land in a transitory action, and the inexpediency of allowing the actual occupant to be harassed by frequent suits when a single real action would settle the dispute. See Mather v. Trinity Church, 3 S. & R. (Pa.) 509; cf. Wright v. Guier, 9 Watts (Pa.) 172. But it seems that the real explanation must be found in the doctrine of disseisin. 3 BL. COM. 210; Bigelow v. Jones, supra. Actions which determine title to personal property are essentially possessory. But the right to pos session of the severed realty, as chattels, is in the disseisor, for he has all the rights incident to ownership of an estate in fee simple. See 3 HARV. L. REV. 23, 28. It is noticeable, however, that the courts overlooking a similar difficulty, allow trover for timber severed and carried away by a trespasser who does not claim title to the land. Forsyth v. Wells, 41 Pa. St. 291.

The disseisee, however, is not left without remedy for the injuries to the premises during disseisin. In certain jurisdictions he can recover damages in ejectment; or, having re-entered, he may bring trespass quare clausum or an action for mesne profits. See 85 Am. Dec. 321, note. For after re-entry the seisin by a fictitious relation is regarded as having been continuously in the real owner. 3 BL. COM. 210. This fiction once granted, there seems no reason why the disseisee should not take advantage of it in trover or replevin, as well as in trespass for mesne profits. Some courts allow it. See Alliance Co. v. Nettleton Co., 74 Miss. 585; Wilson v. Hoffman, 93 Mich. 72. Others limit the disseisee to his action for mesne profits, denying that the disseisor's title to the chattel is divested by a recovery of the land. See Brothers v. Hurdle, 10 Ired. (N. C.) 490; Page v. Fowler, 39 Cal. 412. So where the disseisee has obtained possession of the logs, the disseisor may maintain replevin. Lehman v. Kellerman, 65 Pa. St. 489; Busch v. Nester, 70 Mich. 525, contra. Another conflict of cases arises concerning recovery against a purchaser from the disseisor. A strong current of authority allows trespass for mesne profits even against a purchaser for value in good faith. Trubee v. Miller, 48 Conn. 347. Apparently, therefore, trover might be brought. See Alliance Co. v. Nettleton Co., supra. Courts which regard the disseisor as acquiring an indefeasible title to the severed realty are necessarily contra. Faulcon v. Johnston, 102 N. C. 264. Were it possible to remould the law various changes might be suggested. This artificial doctrine of disseisin however, harsh as it may be in particular instances, seems too firmly established to be modified otherwise than by legislation.

INTENT AS AFFECTED BY DRUNKENNESS. - It is to be regretted that the law with regard to civil suits in which the question of drunkenness arises has been left in a form far more indefinite than that of the criminal law. In the latter branch of the law the rule is well established that intoxication, though no defence, may be given in evidence to show the lack of specific intent. Though the general trend of civil decisions is in accord with this doctrine, that an act of a drunkard is still his voluntary act, there are several cases which tend to obliterate the distinction. In a recent suit on an insurance policy, under which the insurer was relieved of liability for intentional injuries, the insured had his thumb bitten by a drunken man. Although the court held that the facts showed an intentional injury, it was indicated that one may become so intoxicated as to be incapable of having an intention. Northwestern Benevolent Society v. Dudley, 61 N. E. Rep. 207. Opposed to this dictum is a decision in a slander suit where evidence of the defendant's drunkenness was held inadmissible. Mix v. McCoy, 22 Mo. Ap. 488. The latter case is undoubtedly the sound one, as the offence- voluntarily uttering the words was committed irrespective of malice or of any particular state of mind. The distinction accepted by the criminal law, that a drunkard's act, though voluntary, may be unaccompanied by any particular state of mind, seems now to be gradually being adopted in both tort and contract cases. According to the text writers, both at law and in equity to-day a contract made by one utterly deprived of the use of his reason by drunkenness or otherwise is generally considered void, either on grounds of policy, MARKBY, ELEMENTS OF LAW, 5th ed., § 754; or

because there can be no deliberate intention to assent. STORY, EQ. JURIS., § 231; BISHOP, NON-CONTRACT LAW, § 513; POTHIER, TRAITÉ DES OBLIGAT., § 49. The modern English cases are in accord with this view. Pitt v. Smith, 3 Camp. 33; Gore v. Gibson, 13 M. & W. 623. But Pollock, C. B., in a later case has intimated that under no conditions is the contract absolutely void. Matthews v. Baxter, L. R. 8 Ex. 132. This shows a tendency to revive the harsher early English doctrines. 4 BL. COM. 26. In the United States, although the authorities are in hopeless conflict, the general tendency is to consider the contract as void. This view seems correct on principle, as there can be no contract if one party, through drunkenness or any other cause, is incapable of giving assent.

In equity, and now at common law since the introduction of equitable defences, contracts made while merely under the influence of liquor are voidable, but only if the other party has obtained an unfair advantage or has purposely caused the intoxication. Cooke v. Clayworth, 18 Ves. 12; Crane v. Conklin, 1 N. J. Eq. 346. With regard to testamentary capacity a sound doctrine has been established. Intoxication at the time of making a will does not invalidate it if the testator comprehended the nature of the act. Bannister v. Jackson, 45 N. J. Eq. 702; Key v. Holloway, 7 Baxter (Tenn.) 575. Where a testator destroys his will, either while suffering from delirium tremens or when merely under the influence of liquor it is held to be not revoked. Brunt v. Brunt, L. R. 3 P. & D. 37; In the Goods of George Brassington, deceased, 18 T. L. Rep. 15. These decisions are clearly correct as a valid revocation requires an animus revocandi.

It seems impossible, after a review of the authorities to deduce any broad principle with which all the cases where the effect of intoxication upon intent is in issue may be reconciled. The true rule in contracts and torts as well as in criminal law seems to be that if a specific intent or a special state of mind is necessary for liability, evidence of drunkenness is admissible to negative it, otherwise not. The dictum in the principal case is too sweeping, apparently recognizing no distinction between an act intentionally, that is voluntarily done, and an act done with specific intent, that is an intention ulterior to the mere moving of the muscles.

RECENT CASES.

ADMIRALTY GENERAL AVERAGE CONTRIBUTING INTERESTS. A vessel was chartered to proceed to a foreign port and there take on a cargo, freight to be payable on the completion of the voyage home. On the voyage out in ballast, the vessel grounded, and a general average sacrifice was made. The voyage was subsequently completed and the freight due under the charter paid. Held, that the freight is liable to contribute to the general average sacrifice. Steamship Carisbrook Co. v. London, etc., Ins. Co., [1901] 2 K. B. 861.

Though freight for the voyage on which a general average sacrifice is made, is liable to contribute, there is very little authority on the question of the liability of the homeward freight, already contracted for, to contribute to a general sacrifice on the outard voyage. One case has been found in England, and one in the United States, holding that where freight is a gross sum for the round voyage, the whole freight must contribute to a general average sacrifice on the outward voyage. Williams v.

London Assurance Co., 1 M. & S. 318; The Brig Mary, 1 Sprague (U. S. Dist. Ct.) 17. Military salvage was assessed on the same principle in The Progress, Edw. Adm. 210, 224. Logically, there is no ground for distinguishing the case of a vessel going out in ballast, under charter to bring back a cargo, from the cases above. Since the freight is payable only on the successful completion of the voyage, it is at risk and is insurable from the moment the vessel sets sail on the outward voyage. It therefore participates in the benefit from the sacrifice, and on principle should contribute to the general average.

ADMIRALTY-PUBLIC ADMINISTRATOR-PROPERTY FOUND UPON AN UNIDENTIFIED BODY AT SEA.- Money found upon the body of an unknown person floating at sea was paid into the registry of an admiralty court. Letters of administration were granted under Pub. St. Mass., c. 156, § 2, to the public administrator, by the probate court of the county in which the admiralty court was situated, and this suit was brought to determine rights in the fund in court after salvage had been awarded. Held, that the public administrator is entitled to the fund. Gardner v. Ninety-nine Gold Coins, 11 Fed. Rep. 552 (Dist. Ct., Mass.).

The decision involves the rights of three rival claimants, the finders, the United States and the administrator. Whatever the respective merits of the first two claims, they are admittedly subordinate to those of the real owner. The public administrator, holding office under statute and having letters of administration from a court of proper jurisdiction, stands like any other administrator in the place of the deceased. The decision therefore comes to this merely, that the claim of the owner of lost goods or his representative is paramount over all others. This is not, however, a final disposition of the case. The estate having been fully administered, the fund if any must be handed over to the Commonwealth. PUB. ST. MASS., c. 131, § 12. The interesting question, here expressly left open, as to who is ultimately entitled, must then be litigated. It is difficult to prophesy as to the outcome, since of the only two decisions found on the point, one awards the property to the finders, and the other to the United States. Russell v. Forty Bales of Cotton, Fed. Cas. No. 12,154; Peabody v. Twenty-eight Bags of Cotton, Fed. Cas. No. 10,869.

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AGENCY APPARENT AUTHORITY VIOLATION OF INSTRUCTIONS.- An insurance agent had authority to accept risks upon property located within a certain prescribed territory. Held, that the company is not liable upon risks accepted by him outside of those limits. Insurance Co. of N. A. v. Thornton, 30 So. Rep. 614 (Ala.). A principal is, in general, bound by all acts of his agent within the apparent scope of the agent's authority. Union Mutual Ins. Co. v. Wilkinson, 13 Wall. 222. Accordingly, an agent can bind his principal by acts that are direct violations of instructions, where persons dealing with the agent in reliance upon his ostensible authority, have neither actual nor constructive notice of such instructions. Millville, etc., Ins. Co. v. Mechanics', etc., Assoc., 43 N. J. Law 652; Ruggles v. American, etc., Ins. Co., 114 N. Y. 415. This reliance by the third party should, however, be reasonable and in good faith. See Peabody v. Hoard, 46 Ill. 242. If in any case the third person has reason to know that the agent's authority is restricted in a certain particular, he cannot hold the principal liable if it appears that the limitation was in fact transgressed. Baines v. Ewing, L. R. 1 Ex. 320. This can be upheld on the ground that reliance is placed, to this extent, upon the agent, not upon the principal. See Crane v. Gruenewald, 120 N. Y. 274. But there is nothing in the facts of the principal case as reported, to bring it within the rule of these cases. The decision is therefore wrong on principle; and it is contrary to the cases found directly in point. Lightbody v. North American Ins. Co., 23 Wend. (N. Y.) 18; see also Knox v. Lycoming Fire Ins. Co., 50 Wis. 671.

AGENCY-CORPORATIONS - KNOWLEDGE OF AGENT. The president of a bank, acting in his private capacity, acquired knowledge of the status of certain insurance policies, which were later pledged to the bank. Held, that his knowledge did not affect the later transaction unless he participated therein. Smith v. Carmack, 64 S. W. Rep. 372 (Tenn., Ch. App.).

In general, the knowledge of the agent is the knowledge of the principal. McGurk v. Metropolitan, etc., Co., 56 Conn. 528; Hoover v. Wise, 91 U. S. 308. This rule should apply to all knowledge, however acquired, which it is the duty of the agent to communicate. The Distilled Spirits, 11 Wall. 356; Hart v. Farmers, etc., Bank, 33 Vt. 252. The rule is based on common sense principles, and therefore does not

apply where it would be clearly unreasonable. Blackburn v. Vigors, 12 App. Cas 531, 537. So the knowledge is not imputed when the agent is dealing with the prin cipal for his own benefit. Allen v. South Boston R. R. Co., 150 Mass. 200, 206. Since corporations can act only through agents, the rule is of peculiar importance where they are concerned. Its application is difficult, since no principal exists capable of actual knowledge. See 6 SOUTHERN L. REV. N. S. 793. If the agent, while possessing the knowledge, acts for the corporation, the knowledge undoubtedly affects the transaction. Union Bank v. Campbell, 4 Humph. (Tenn.) 394. But where, as in the principal case, there is no duty to communicate, and it does not appear that the agent participated in the later transaction or was cognizant of it, his knowledge should not be imputed to the corporation.

AGENCY INDependent CoNTRACTOR — LIABILITY OF EMPLOYER. The defendant railway company employed an independent contractor to construct a portion of its railway across a highway. The contractor negligently failed to put lights on an embankment thrown up on the highway; and the plaintiff in consequence was injured. Held, that the defendant is liable. Deming v. Terminal Ry. of Buffalo, 169 N. Y. 1. See NOTES, p. 485.

BANKRUPTCY-PROVABLE DEBTS

Judgment FOR FINE. — The defendant was fined for keeping a disorderly house, and judgment was entered against him. Thereafter he was declared bankrupt and the state filed its claim for the amount of the fine. Held, that such a claim is not a debt provable against the bankrupt's estate. In re Moore, 111 Fed. Rep. 145 (Dist. Ct., W. D. Ky.).

A literal application of § 63 of the Bankruptcy Act would make the claim provable under the head of a fixed liability as evidenced by a judgment. Since § 17 discharges all provable debts except those of certain classes to which the debt in question does not belong, the fine imposed by the state would be included in the discharge if the statute were literally construed. Under former United States bankruptcy laws the rule has been laid down that debts due to the state are not barred unless specially mentioned, on the ground that the state is not generally bound by statutes except when expressly referred to. United States v. Herron, 20 Wall. 251. The same rule has been applied under the present act. In re Baker, 96 Fed. Rep. 954. Moreover it seems fair to suppose that Congress did not intend to interfere with the criminal administration of a state by discharging fines imposed as punishments. See In re Sutherland, 3 N. B. R. 314; and cf. Turner v. Turner, 108 Fed. Rep. 785, and In re Baker, supra. The only exactly parallel case found under the present act is contra, but under former acts the decisions have been in accord with the better view adopted in the principal case. In re Alderson, 98 Fed. Rep. 588; In re Sutherland, supra; cf. Bancroft v. Mitchell, L. R. 2 Q. B. 549.

SUFFERING JUDGMENT

BANKRUPTCY FAILURE TO ACT AS AN ACT OF BANK. RUPTCY. — The Bankruptcy Act of 1898, § 3a, provides that “ Acts of bankruptcy by a person shall consist of his having . . . suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged such preference." Judgment was entered against the defend ant without his procurement, upon a note and irrevocable power of attorney to confess judgment, and a subsequent levy and sale left him entirely without means. Held, that the judgment and levy were a preference under §§ 3 a, 60a; and that the defendant's failure to vacate the preference was an act of bankruptcy. Wilson Bros. v. Nelson, 22 Sup. Ct. Rep. 74.

Under the Act of 1867, §§ 39, 35, a judgment suffered by an insolvent debtor was not an act of bankruptcy unless there was an intent to give a preference; and the Supreme Court refused to infer that intent from mere passive non-resistance. Wil son v. City Bank, 17 Wall. 473. The Act of 1898, by the clause under discussion, seems on the contrary to make the result obtained by the creditor, and not the intent of the debtor, the essential fact. The decision in the principal case was reached by a divided court. The minority thought that to constitute an act of bankruptcy an exercise of will was requisite, and that the present act was not so different from the Act of 1867 as to demand a departure from Wilson v. City Bank, supra. The opinion of the majority is much to be preferred. It follows what seems to be the natural import of the words, and is in accordance with most of the decisions in the lower courts. In re Moyer, 93 Fed. Rep. 188; see 13 HARV. L. REV. 57; contra, Duncan v. Landis, 106 Fed. Rep. 839.