longing to the estate; and the said agents will remain as the representatives of the heirs who are absent, minors or incapable.

"6. To administer and liquidate the estate, either themselves or through a person appointed on their responsibility, the local authorities having no power to interfere in those operations unless subjects of the country or of a third power should have to prove rights upon the estate itself, and that in such case difficulties should arise chiefly proceeding from some claim which gives rise to discussion among the parties; the consuls-general, consuls, vice-consuls, or consular agents having no right to decide therein, it must be brought before the tribunals of the country, whose place it is to provide for and settle such difficulties.

The said consular agents will then act as representatives of the estate; that is, they will retain the administration and the right of definitively liquidating the inheritance, as well as that of proceeding to the sale of the effects in the periods before prescribed. They will take care of the interests of the heirs, with the power of appointing advocates to maintain their rights before the tribunals; and it is understood that they must furnish all the papers and documents necessary to explain the question which is submitted to their judg

ment.

When the sentence has been pronounced, the consulsgeneral, consuls, vice-consuls, or consular agents must execute it, unless they interpose an appeal; and they will also continue of full right to carry on the liquidation which was suspended until judgment had been passed.

7. To consign the inheritance or the produce thereof to the lawful heirs or to their agents, but not until the expiration of the term of six months from the date on which the announcement of the death was published in the newspapers.

8. To constitute, whenever it may be necessary, a guardianship or trusteeship according to the laws of their own country.

"XVIII. If an Italian die in Spain or a Spaniard in Italy, at a place where there is no consular agent of his nation, the competent local authority shall proceed, in accordance with the laws of the country, to make an inventory of the effects

and to liquidate the property left, under the obligation of rendering an account as soon as it is possible of the results of his operations to the respective embassy or legation, or to the consulate or vice-consulate nearest to the place where the property has been left; but from the instant that the consular agent nearest to the place where the property has been left makes his appearance, either in person or by means of any delegate, the intervention of the local authority must be in accordance with the provision in Article XVII of this

convention.

"XIX. The consuls-general, consuls, vice-consuls, and consular agents of both nations shall attend exclusively to the inventories and other precautionary measures for the preservation of the hereditary property left by sailors of their nation dying ashore or on board the vessels of their country, whether during the voyage or in the port of their arrival."

It is clear that under this treaty system between these three Latin countries-Spain, Italy, and France-the consul is to exercise an extraterritorial judicial power and to be the real administrator of the estate; but that disputes in which the country where the death occurred has some special interest, as where its own people or the people of a third country whom it should protect are concerned, are to be carved out of his jurisdiction and settled by the local judicial authority, leaving him to resume his functions when these special questions have been determined.

Similar treaties had anciently been made with England. Thus, in Warden's Consular Establishment, page 252, we read:

"In a treaty with Spain, made in 1667, it was stipulated, that the goods and estates of Englishmen, dying without will in that Kingdom, were to be put into inventory, with their papers, writings, and books of accounts, by the consul or other public minister of the King of Great Britain, and placed in the hands of two or three merchants named by the said consul or public minister, to be kept for the proprietors or creditors; and that neither the Cruzada, nor any other judicatory whatsoever, should intermeddle therein; which,

also, in the like case was to be observed in England, toward the subjects of the King of Spain.”

Still further light is shed upon our questions, I think, by the consular system of Spain, in which her consuls in foreign countries are authorized to exercise all the powers of courts of first instance, if permitted to do so by the laws of the country to which they are accredited.

I can not but think, from these and similar considerations, that the privilege intended to be accorded to foreign consuls by article 44 of the alien law was not merely to be present and see that the local judicial authority did what was proper, nor to exercise any part of the judicial power of the country to which the consul was accredited, but to be the administrator and judge in charge of the business of settling the estate and succession.

It seems to me, therefore, that to oust the consul altogether, as was done in the matter of the estate of Don Ramon Martí y Buguet, and proceed without him, was to proceed without jurisdiction, and I therefore answer your third question in the negative.

Respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

CONTRACT PENALTIES-LIQUIDATED DAMAGES.

Two parties entered into contracts with the proper authorities for the erection of certain buildings at the Soldiers' Home. The contracts provided that in case of failure to complete the work within the times specified a deduction or payment of $25 "per diem" should be made as liquidated damages for each and every day thereafter until completion of the contracts. With nothing to show the cause of the delay, whether a trifling or a substantial portion of the work was delayed, or whether any real damage was caused thereby, Held: That the question whether contract stipulations for the payment or deduction of a certain sum "per diem" for failure to perform at a specified time is to be treated as a penalty or as liquidated damages, must frequently depend upon facts and circumstances outside of the contract. No matter in how strong terms the contract provides that the stipulation is to be considered as liquidated damages, it is not at all conclusive of the matter.

In determining this question, courts proceed upon the single idea of compensation, and, where this can be done without injury to the party not in default, will treat such provisions as penalties. Where it is impossible to determine the extent of the damage, courts will generally give effect to the agreement, and treat it as liquidated damages. Even here the idea of compensation must not be violated by fixing a sum greatly in excess of any actual or fairly presumable damage.

Whether the stipulation is to be treated as a penalty or as liquidated damages, the sum to be deducted or recovered is such as will compensate the party for the loss occasioned.

If, under the general principles stated and the facts of the case, the Secretary of War shall find that the sum to be deducted is measured by the damages really sustained, the Board of Commissioners of the Soldiers' Home have ample authority to pay said contractors the full contract prices, less damages actually sustained by the delay.

DEPARTMENT OF JUSTICE,

May 5, 1900.

S.R: In your note of April 24, 1900, with its enclosures, you ask my official opinion whether the provisions in each of the two contracts referred to for a deduction of certain "per diem" sums for failure to complete the work agreed upon by a certain fixed time are to be treated as providing a penalty merely, or as liquidated damages for non-performance within the time fixed, and whether, in one of the cases, the Board of Commissioners of the Soldiers' Home have authority to pay the contractors the whole contract price less the damage actually sustained by the delay; and I have the honor, in reply, to say that—

From your note and its enclosures it appears that the proper authorities made a contract with William Kimmel for the erection by the latter of an addition to the King Building, United States Soldiers' Home, for the consideration of $37,711, which provided for the completion of the work on or before November 1, 1899, with the following provision:

"Should the said party of the second part fail to complete the work within the time specified, he shall pay or cause to be paid to the said party of the first part the sum of $25 per diem, as liquidated damages, for each and every day thereafter until the completion of the contract by the said party

of the second part, which sum shall be deducted from any money which may be due him, and if that amount be not due, then he agrees to pay the same."

In the other case, a contract was made with Meade & Reynolds for erecting and completing additions and alterations to the Barnes Hospital Building, United States Soldiers' Home, for the sum of $35,200, with a fixed time for the completion of the work, and a provision similar to that above quoted, in case of failure to complete within the time fixed.

The work was not completed, in either case, within the time stipulated, and the deductions provided for in the contracts amount, in one case, to $2,975, and in the other to $2.625.

There is nothing before me to show the cause of the delay, its necessity, or otherwise; whether a trifling or a substantial portion of the work was delayed beyond the time fixed, or whether any real damage was caused thereby.

There is, perhaps, no branch of the law more uncertain or indefinite in its application to particular cases than is that which deals with the question whether contract stipulations. for certain consequences of a failure to perform within the time fixed are to be treated as penalties intended to secure prompt performance, or as fixing the maximum of damage for failure, or as fixing in advance, by the parties themselves, a sum which, by agreement, shall measure the otherwise uncertain damage which one party shall be conclusively considered to have sustained by the failure to perform (liquidated damages, in other words). Certain general rules are well enough established, but there is so much diversity and conflict in the authorities as to their application to particular cases, and such infinite variety of circumstances attending the performance of different contracts, that difficulty is found in determining whether a particular case falls within one rule or another.

Where such stipulations are to be treated as penalties intended to secure prompt performance, only the damage actually sustained can be deducted or recovered, notwithstanding the stipulation for a larger sum. But if as liqui