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2. A contract under which the owner delivers property to another to sell, and which provides that the title to the property shall remain in the owner until sold to an actual purchaser, and that all property not so sold, and the proceeds of all sales, shall be returned to such owner, and which imposes no obligation upon the other party to pay the purchase price for any of the property, constitutes a bailment with power of sale and not a conditional sale. 3. A bailor may pursue his property and reclaim it, even in the hands of a good-faith purchaser from or under the bailee, unless estopped by his own conduct from causing loss to such purchaser. And this is equally true where property is consigned to a factor to sell who wrongfully disposes of it to satisfy his own debt. 4. Where the owner ships property to a factor and the factor wrongfully executes a bill of sale therefor to one having notice of his wrongdoing, and thereafter such vendee sells to another to whom he exhibits his bill of sale, and who without the production of the bill of lading and without knowing or inquiring the source of the factor's title, and without knowing or inquiring by whom or on what conditions the property had been shipped, takes it while still in the car in which it had been shipped to the factor, the owner is not estopped from reclaiming his property. Norris v. Boston Music Co., 151 N. W. 971. (Minn.)

SURETYSHIP AND GUARANTY.- DISCHARGE OF SURETY-CHANGE IN CONTRACT-ANTICIPATION OF PAYMENTS.-Where a subcontractor under a contract providing that when payments were received by the principal contractor the proportionate amount thereof should be paid to the subcontractor, applied to the principal contractor before any payment was due, and before any considerable amount of the work had been done, for financial aid to carry out the work, and the principal contractor thereupon executed his accommodation note to the subcontractor, with the understanding that he should protect himself out of payments due the subcontractor, and hold back the amount of the note therefrom, and that as between him and the subcontractor the note was payable only if the subcontractor should faithfully and properly perform the contract, the transaction was not an independent loan of the contractor's credit to the subcontractor, secured by the subcontractor's right in the contract, but was an anticipation of the payments due under the subcontract, the effect of which was to reduce the subcontractor's incentive to continue work until the payments regularly became due, and the surety on the subcontractor's bond to the contractor was thereby discharged. Wells v. Nat. Surety Co., 222 F. 80.

WILLS—CONSTRUCTION-SURPLUSAGE-SUBSTITUTION OF PHRASES.--Under the rule falsa demonstratio non nocet a bequest to a city for the benefit of indigent children in its Protestant schools is valid, and the word “Protestant” might be rejected as surplusage. Since to effectuate the intention of the testator in a will one word or phrase may be substituted for another, the word “Protestant” may be read as "public" in a bequest to a city for the indigent children in its Protestant schools. Peaslee v. Rounds, 94 A. 263. (N. H.)

THE DOCKET.

THE NEWSPAPERS record the sentence of a Minnesota Judge of forty years' imprisonment of a boy of twenty for robbing a man of a little more than one dollar in money and an overcoat. The plea of the Judge that, as the boy pleaded guilty to an indictment for robbery in the first degree, he could do nothing else but impose the sentence which the statutes declared for such an offense, is properly criticized as no answer at all, for the Judge should not have accepted such a plea under such circumstances. But that the giving of the Judge the power of sentencing is where the blame lies—as suggested by a contemporary law journal—it seems to THE DOCKET to be without support. The journal says: “The case is but another illustration of the inequity that results from a system under which the sentencing of criminals devolves upon a single Judge. With such a system, equality before the law is more or less of an iridescent dream, for under it there can be no uniformity in prison sentences. It frequently happens that where two persons are convicted of the same crime and are sentenced by different Judges, one will be given, for example, a five-year term and the other a ten-year term, with nothing in the latter's case to warrant the disproportionate sentence. In short, the character of the sentence in a particular case depends much upon the temper or idiocrasy of the sentencing Judge. Here lies one of the many crudities in our penal system, which appears to call for the attention of the penologist.

BUT WOULD the writer of this criticism substitute for the Judge the judgment of the Jury which, in their almost insane idolatry of that institution, the Legislatures of some of the States have done? If a Judge before whom many similar cases must come in the course of his office, does not always attain equality, what hope is there for twelve men, who sit in a single case and know nothing as to what other criminals have suffered for similar offenses? If any system could possibly be devised for inequality of the sentences of breakers of the law, it is surely the system of giving the Jury the power to say what the sentence shall be. It is worth remembering that when the English Court of Criminal Appeal was established about ten years ago, it was given the right to reduce or to add to the sentence passed by the trial Judge, and every man or woman convicted was permitted to appeal to this tribunal on the ground that his or her sentence was excessive. THE DOCKET has VOL. L.

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on several occasions witnessed this high court listening to a petty criminal whose only objection to his conviction for larceny or fraud was that his sentence was a year and a half, which he thought too much and that it should be reduced to a year. And he frequently got what he asked for, as the Reports of the court will show. Here at least is a suggestion which meets the above criticism. Such a power probably exists in most of our Appellate Courts, but that it is not exercised is not the fault of the trial Judge, who has a narrower range than would have the Appellate Court in the consideration of appeals on the ground of excessive punishments.

ANOTHER LAW journal—this time an English one-asked by a lay newspaper what is the shortest judicial summing-up on record, thinks that the palm should be awarded to Judge Rentoul, one of the present Judges of the London Criminal Court. “Gentlemen of the jury,” said he, “you have heard Mr. X. say everything that there is to be said for the prisoner—which amounts to exactly nothing. Consider your verdict.” The second prize it thinks should be given to a certain Judge in a case concerning loss of property on a railroad. Gentlemen, in this case the plaintiff claims a hundred pounds for goods lost on the defendants' line. Railways are always losing people's things. They lost a bag of mine last week. Consider your verdict.” Very good for England. But the first prize, as THE DOCKET several years ago pointed out, belongs to this side of the water and to a contributor to this very number of the REVIEW, and an old friend of THE DOCKET, Mr. Justice Riddell, of the High Court of Ontario. The lawyers on both sides had finished their lengthy arguments when the Judge seeing that the only question in the case was the measure of damages charged the Jury in but three words: “Gentlemen, how much?”'

THE NEXT of the great Jurists of the World (see 49 Am. L. Rev. 304) is Emerich de Vattel—the Swiss Jurist and author of the great treatise, Le Droit des Gens—The Law of Nations. He was a son of a Protestant minister and was born in Neufchatel in 1714. He early showed a taste for philosophic subjects, which, in common with general scholarship, he pursued at the University of Basle. He passed on to the University of Geneva, where he finally specialized on moral philosophy. He became an ardent student of Leibnitz and Wolff and published against Crousaz a luminous summary and defense of the Leibnitz position. This he dedicated to King Frederic II, and in 1742 he followed his book to Berlin in order to offer his services to the king. He was rebuffed by the monarch and passed on to Dresden, where his great abilities were at once recognized by the Prime Minister of Saxony, Comte de Bruhl. The future jurist was placed in the diplomatic service, where his unique knowledge of the law of nations and of the history of treaties enabled him to perform services of considerable moment. It was, however, possible for him to spend some years at Neufchatel, but in 1746 he returned to Dresden, when the king, Augustus III, appointed him adviser of the embassy and sent him the next year to Berne as minister plenipotentiary. He had long been composing his famous treatise, Le Droit des Gens, and it was at Berne, amidst pleasing and congenial diplomatic duties, that he finished his work. He also during this period wrote widely on philosophy and literature, closely investigated the whole theory of natural rights and, as a relaxation, published some poems.

Ix 1758 he returned to Dresden, was made a privy councillor, and became the chief adviser of the government on foreign affairs. During the same year Le Droit des Gens was printed at Neufchatel and issued with the name London on the title-page. A second edition appeared in the same year bearing the impress of Leyden. In 1762 he issued his last work, his “Observations.” It was not until late in life that he married, in 1764, at Dresden, Mademoiselle Marianne de Chesne, a member of a noble French family which had settled in Saxony. A son was born in 1765, who died in the year 1827. The strain of his official work proved very great, and in 1766 he broke down and retired for rest to his native district, Neufchatel. In the autumn, with characteristic energy, he returned to Dresden and resumed his duties. In the following year he broke down again and once more sought relief at Neufchatel. But it was too late, and he died on December 28, 1767, in his sixty-fourth year.

IT IS NECESSARY to notice first his “Observations,” as this remarkable volume contains most of the material on which Les Droits des Gens was based. The first part of the book concludes with a discussion of the measure of damages caused by a wrongful act. There must be a certain proportion between the punishment and the crime. This proportion must be maintained even if the punishment will not prevent the wrongdoing. If capital punishment only will prevent apple-stealing from an orchard, the loss must be tolerated. A man has a duty to preserve and protect, not only himself, but others, and if the loss in question is of less importance to a man's perfection than kindly conduct, then the loss must be suffered. If, however, it is found that certain offenses become common, it may be necessary to inflict penalties out of proportion to the offenses in order to preserve society. The second part deals with certain elementary propositions. Vattel discusses the difference in a primitive community between the gifts of nature and the fruits of industry. The first are held in common by the whole community, but each man has un droit de preference sur les fruits de son industrie et de son travail.The result, in the end, is the

dissolution of primitive conditions. A man cultivates a piece of land; discovers that he has a special right to the fruits of the field, and appropriates them ; insensibly he acquires a right to the field itself, and his successor's continue to hold it. In this demonstration we see clearly enough the peculiar vice of eighteenth-century speculation. Had Vattel not been content to reason from the necessarily sophisticated outlook of his own age and class, but had turned to the examination of the village communities within his reach, he would have seen that, in fact, his theory was absolutely untrue; that the appropriation of the fruits of the soil had gone on for untold centuries without individual appropriation of the soil. Vattel attacks Wolff's theory of the origin of property and ownership as a result of the exercise of natural liberty and apparent needs, but his own generalization is far less convincing. It is as follows: As the race multiplied, the simple products of the earth ceased to be sufficient; industry and art became necessary; foreseeing men began to provide against the future, and to cultivate fields instead of roaming at large. A general right to everything existed, so these men could not be restrained from taking a particular portion of land and renouncing the rest. They thereupon acquired the right to the produce of this soil. Others followed their example: voila la propriete et le domaine etablis."

THE THIRD PART discusses some interesting questions of contract and lays down two propositions of natural law: first, that no one can be presumed to have abandoned property; and, secondly, that a holder in good faith must be protected. The Fourth Part continues the discussion of contracts, raising questions of curious interest, such as: Can a man accept an offer by silence? Must a seller point out the patent faults of his goods? In the latter case Vattel is apparently guided by the maxim caveat emptor. The discussion as to accidental injury to a workman is interesting. The employer is responsible, in the case of a hired workman, but not where the work is done by a contractor. The Fifth Part continues the discussion of special cases. Are lotteries allowable by the law of nature? Vattel declares that they are allowable. Again Vattel upholds in principle contracts of insurance made in good faith after the event. He agrees that it is illegal to agree to terminate a difference by a duel. He declares that a vendor of land can reserve a right of passage over it for the use of a neighbor. Problems of these various types are, of course, familiar to modern lawyers. In the Sixth Part, after a discussion of certain questions relating to land (such as the right to the surface) Vattel proceeds to discuss the law of necessity. He is surprisingly and admirably uncompromising as to the limits of lawful action in cases of necessity. He lays down the definite principle: Qu'il ne nous est jamais permis

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