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be a part of the land. Therefore, if the rights of the seller of the chattel are to be contingent on its re maining a chattel, this doctrine carried to a logi cal conclusion must deny him any relief. But fairness demands that he be protected. He has parted with possession of his chattel on conditions to which the law usually gives effect. The vendor of the land, on the other hand, cannot properly demand as secu rity for his purchase price anything more than his vendee equitably had in the thing (Campbell v. Roddy, 44 N. J. Eq. 244; Hurxthal v. Hurxthal, 45 W. Va., 584), that is, an equity of purchase in the engine. It is believed that the desirable result of the present case may best be achieved by a return to the older principles of our law. After determining whether or not a thing has lost its character as a chattel, in accordance with rules to be uniformly ap plied, regardless of personal agreements (Reynolds v. Ashby, 1904, A. C. 466; Fifield v. Farmers' Bank, 148 Ill. 163; Prescott v. Wells, 3 Nev. 82, 89), those inequitable situations which arise may be adjusted according to recognized equitable principles (Bring holff v. Munzemaier, 20 Ia. 513; Davenport v. Shants, 43 Vt. 546).-Harvard Law Review, May, 1907.

tenants to remove those fixtures which they had erected for purposes of trade or agriculture, there was opened up a possibility for confusion as to the character of such fixtures during the period of annexation. Since they were chattels both before and after that period, many courts adopted the view that they never lost the character of chattels (Poole's Case, 1 Salk. 368; Shapira v. Barney, 30 Minn. 59; contra, Guthrie v. Jones, 108 Mass. 191). If, it was further argued, things bearing such a relation to the land as would normally make them a part of it were allowed to retain their original characteristics because of the special relations of the parties, it followed that the same result might be achieved by agreement (Hendy v. Dinkerhoff, 57 Cal. 3; Howard v. Fessenden, 96 Mass. 124; Harris v. Hackley, 127 Mich. 46; Fitzgerald v. Anderson, 81 Wis. 341). Though this doctrine has been widely accepted and is convenient as between the parties, many courts which profess to recognize it decline to adjust the rights of third parties on that basis (Richardson v. Copeland, 72 Mass. 536; Wickes v. Hill, 115 Mich. 333). New York, however, has consistently applied it to all the situations which have arisen, except where the thing attached had become so merged in the land as to lose its identity (Holmes v. Tremper, 20 Johns. N. Y. 29; Ford v. Cobb, 20 N. Y. 344). In a recent case in the Court of Appeals, one who purchased an engine, subject to the agreement that it should remain personalty until the purchase price was paid, attached it to land of which he was in possession, under a contract to purchase, containing a provision that whatever machinery should be attached to the land should become realty. The court permitted the seller of the chattel to recover the unpaid purchase price from the vendor of the realty (Davis v. Bliss, 187 N. Y. 77). This situation seems to test the soundness of the New York doctrine. It is evident that the person whose agreement can preserve to a fixture its character as a chattel is not the owner of the chattel but the occupier of the land, who is to annex the chattel (Jermyn v. Hatch, 93 N. Y. App. Div. 175). of first impression in Kentucky, Maryland and Ten

If, then, that person had previously contracted with the owner of the land that the thing shall not retain its character as a chattel, the court is placed in the embarrassing position of deciding which of these promised results has been achieved (McCrillis v. Cole, 28 R. I. 156); or else, since the two agreements are inconsistent, of refusing to consider either as affecting the character of the property. The only possible guide to a choice between the agreements would be the actual intent of the annexor. But the danger in permitting such a person to elect which of the two others shall be preferred is sufficiently apparent. If neither agreement is regarded, the rules applicable under normal circumstances determine the thing to

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Stock Dividends as Between Life Tenant and
Remainderman.

The Columbia Law Review for May, 1907, contains a thoughtful editorial note upon the right to stock dividends as between a life tenant and remainderman,

disapproving of what may be termed the "New York rule," which rule, nevertheless, receives increasing approval as the question arises in different State courts. From the extract given below it seems prob able that the decision of the Supreme Court of Iowa in Kalbach v. Clark, following the New York rule, was the immediate text of our contemporary's remarks. In a leading New York case on the subject (McLouth v. Hunt, 154 N. Y. 179) attention is called to the fact that the same view had been taken in cases

nessee. The Columbia Law Review says in part:

"All jurisdictions, therefore, agree as to the dispo sition of stock dividends representing the natural growth and enhancement of the capital, and the chief point of conflict in the cases is as to what rule should govern the disposition of stock dividends representing the earnings of the corporation. It is, of course, desirable that the intention of the testator shall be carried out, but since this can be ascertained, in the absence of other evidence, only by the terms used, the fundamental question is whether or not stock dividends representing profits may be fairly said to come within the natural, ordinary and logical meaning of the terms 'dividends,' 'profits' and 'income' as ap

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cated investigation into the affairs of the corporation is necessary (see Perry, Trusts, 5th ed., sec. 545, and note, p. 91)."

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It is the law even in New York that each case will turn upon its own facts, that is, upon the language of the particular will or other instrument construed. In the McLouth case (supra), it was directed that the life tenant should receive "full income." Lowry v. Farmers' Loan & Trust Co., 172 N. Y. 137, which followed McLouth v. Hunt, it was provided that the "entire income" of the securities of the trust fund should be applied as income. Although in the last case this clause was primarily intended to prevent the accumulation of a sinking fund out of income, the language was also considered as bearing upon the testator's general intention. In the latest utterance of the Court of Appeals, in Robertson v. De Brulatour (N. Y. Law Journal, April 30, 1907), upon a cognate subject, the particular facts and circumstances were given controlling weight. That was not a case of stock dividends, but of extraordinary cash dividends, and the court elaborately ana

plied to shares of stock, and if so, when? In a recent case in Iowa this question has been answered by adopting the Pennsylvania' rule, substantially as above set forth (Kalbach v. Clark, Iowa, 1907, 110 N. W. 599). The theory of these cases is that a dividends of stocks which represent earnings is a distribution of profits, and that, since income from shares is made up from profits which are distributed, these stock dividends are a part of the income and must go to the life tenant (Earp's Appeal, supra; Moss' Appeal, Pa., 1877, 24 Am. Rep. 164; McLouth v. Hunt, 1897, 154 N. Y. 179). The logical and economic difficulty with this theory is that a distribution of stocks is not a distribution of profits, since the company's property is not diminished, nor the stockholders' increased by the transaction. There is simply a dilution of the number of shares (Williams v. Western Union Tel. Co., 1883, 93 N. Y. 162). The very fact that the company issues stock instead of cash would seem to indicate that it has elected to keep the profits for a permanent use instead of distributing them (Gibbons v. Mahon, 1890, 136 U. S. 549; Spooner v. Phillips, 1892, 62 Conn. 62). Never-lyzed the source of such dividends in order to detertheless, the rule has received considerable support (see Appeal of Philadelphia, etc., Trust Co., Pa., 1889, 16 Atl. 734; McLouth v. Hunt, 1897, 154 N. Y. 179; Van Doren v. Olden, supra; Hite v. Hite, supra; cf., 26 Am. Law Rev. 1).

The theory of the English and Massachusetts cases, on the other hand, is that, since before distribution, the corporation may, within its authorized discretion, make such use of the earnings as are for the best interests of the corporation (In re Barton's Trust, 1867, L. R., 5 Eq. 238; 1 Morawetz, Corporations, sec. 447), the election of the corporation to set aside a portion of the earnings and devote them to the permanent use of the corporation in any form whatsoever converts such earnings into capital. This determination is binding upon the stockholders, and manifestly, if shares are issued to represent these earnings converted into capital, they are none the less capital, and there is no distribution of income. Hence the action of the corporation, so long as within its authority, must determine whether stock dividends are capital or income (Bouche v. Sproule, 1887, L. R., 12 App. Cas. 385; In re Barton's Trust, supra; Hooper v. Rossiter, 1824, 1 McClel., 527; Leland v. Hayden, 1869, 102 Mass. 542; Heard v. Eldredge, 1872, 109 Mass. 258; Rand v. Hubbell, 1874, 115 Mass. 461). This doctrine is also well supported (Gibbons v. Mahon, 1890, 136 U. S. 549; Spooner v. Phillips, 1892, 62 Conn. 62; Greene v. Smith, R. I., 1890, 19 Atl. 1081; DeKoven v. Alsop, 1903, 205 Ill. 309; cf. 5 Am. Law Rev. 720; 4 Columbia Law Review, 130), and it is submitted offers the more logical and practical working rule. It gives effect to the legal and economic theory of dividends and no compli

mine that they essentially constituted income and not capital, and, therefore, belonged to the life beneficiary as against the remainderman.

The New York cases, including this latest one, however, show a decided disposition to treat dividends, whatever their form, that really are or stand for net earnings, as presumptively belonging to the life beneficiary, and our contemporary's reasoning does not convince us that the New York and Pennsylvania rule is illogical or unjust. It is perfectly consistent to recognize the right of a board of directors to retain income and add it to capital, and thus for corporate purposes classify it as capital, and at the same time to hold that the shares of new stock go to the life beneficiary under the terms of the will. We have no doubt that the New York courts will continue to recognize the right of life beneficiaries to take dividends clearly made up of earnings and which have not impaired original capital unless the language of the instrument expressly shows a contrary intention. The question is one to be borne in mind in the preparation of wills. Sometimes a testator, if his attention were called to the matter, would prefer to have stock dividends added to the capital of the trust and to restrict the life beneficiary to cash dividends.-N. Y. Law Journal.

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Immigration and Naturalization of the Department | thereof, and every final order which may be made

of Commerce and Labor. The qualifications of citizenship are prescribed and jurisdiction to naturalize aliens is conferred upon United States Circuit and District Courts and also upon "all courts of record in any State or Territory now existing, or which may hereafter be created, having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited." It is further provided that "naturalization jurisdiction of all courts herein specified, State, Territorial and Federal, shall extend only to aliens resident within the respective judicial districts of such courts."

Although jurisdiction is thus conferred upon certain State courts, the procedure therein is minutely regulated, such courts being constituted purely Federal instrumentalities. It is provided, for example, that the courts exercising the function shall, "upon the requisition of their clerks be furnished from time to time by the Bureau of Immigration and Naturalization with such blank forms as may be required in the naturalization of aliens, and all certificates of naturalization shall be consecutively numbered and printed on safety paper furnished by said bureau."

It is required

"at the time of the filing of a petition for naturalization that there shall be filed with the clerk of the court a certificate from the Department of Commerce and Labor, if the petitioner arrives in the United States after the passage of this act, stating the date, place and manner of his arrival in the United States, and the declaration of intention of such petitioner, which certificate and declaration shall be attached to and made a part of said petition."

Other portions of the law are:

"Sec. 6. That petitions for naturalization may be made and filed during term time or vacation of the court and shall be docketed the same day as filed, but final action thereon shall be had only on stated days, to be fixed by rule of the court, and in no case shall final action be had upon a petition until at least ninety days have elapsed after filing and posting the notice of such petition: Provided, that no person shall be naturalized nor shall any certificate of naturalization be issued by any court within thirty days preceding the holding of any general election within its territorial jurisdiction. It shall be lawful, at the time and as a part of the naturalization of any alien, for the court, in its discretion, upon the petition of such alien, to make a decree changing the name of said alien, and his certificate of naturalization shall be issued to him in accordance therewith.

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Sec. 9. That every final hearing upon such petition shall be had in open court before a judge or judges

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Sec. 12. That it is hereby made the duty of the terk of each and every court exercising jurisdiction in naturalization matters under the provisions of this act to keep and file a duplicate of each declaration of intention made before him and to send to the Bureau of Immigration and Naturalization at Washington, within thirty days after the issuance of a certificate of citizenship, a duplicate of such certificate, and to make and keep on file in his office a stub for each certificate so issued by him, whereon shall be entered a memorandum of all the essential facts set forth in such certificate. It shall also be the duty of the clerk of each of said courts to report to the said bureau, within thirty days after the final hearing and decision of the court, the name of each and every alien who shall be denied naturalization, and to furnish to said bureau duplicates of all petitions within thirty days after the filing of the same, and certified copies of such other proceedings and orders instituted in or issued out of said court affecting or relating to the naturalization of aliens as may be required from time to time by the said bureau."

The law provides for the collection of fees by the clerks of the courts, one-half of the amount thereof to be retained by them and the remaining one-half to be accounted for and paid over to the Bureau of Immigration and Naturalization. The legislation, as above intimated, is comprehensive and would seem to be intended as exclusive as to procedure as well as substantive law.

Quite properly there has been introduced in the present session of the New York Legislature a bill repealing chapter 927 of the Laws of 1895, which regulates procedure in naturalization in the courts of this State. Although such legislation may not be very important, the bill should be passed, in order to remove all possible doubt as to obligation of the State courts to administer a dual system, which might be conflicting, and certainly would be embarrassing and oppressive. The act, as introduced in the New York Legislature, is purely one of repeal. This would not be construed as disapproval of the adoption by the Federal government of the State courts as naturalization agencies. There is no valid objection to Congress so utilizing State courts in the absence of positive inhibition or regulation on the subject by the States themselves.

Besides codifying the law of citizenship and provid

ing a comprehensive modus operandi, the Federal act | pole for a street railway then in course of construcprovides (section 15) that

"it shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship, on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. In any such proceedings the party holding the certificate of citizenship alleged to have been fraudulently or illegally procured shall have sixty days' personal notice in which to make answer to the petition of the United States; and if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought."

It is well to have this point expressly covered, as the condition of the law heretofore has given rise to considerable embarrassment and uncertainty. (See an editorial in this Journal for December 4, 1905, on "Vacation of Naturalization," and cases therein cited). According to the form of the section last quoted, the proceeding must be brought in the judicial district in which the naturalization citizen resides at the time, thereby avoiding the oppression that might result from being obliged to answer in a distant forum, and, on the other hand, the Federal district attorney is given his choice of courts in the judicial district of the citizen's residence.

The Department of Commerce and Labor has issued a series of "Naturalization Regulations," intended to supplement the positive law on the subject, for the guidance of applicants for naturalization and also of clerks of courts having jurisdiction in the premises, and requesting clerks who may be in doubt as to the proper course of action in any case to apply for instructions to the Bureau of Immigration before taking action.-N. Y. Law Journal.

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NOTES OF CASES.

Master and Servant-Tort of Servant-Scope of Employment.-In Moore v. Camden & T. Ry., decided by the Court of Errors and Appeals of New Jersey in March, 1907 (65 Atl. 1021), the following is the syllabus by the court: "In a suit brought against a construction company for assaults committed by its employees upon the plaintiff, upon whose lands, fronting a city street, the company was engaged in erecting, without her consent, a trolley

tion, it appeared at the trial that the erection of such pole upon plaintiff's premises was an illegal act, and that the employees of defendant company, while so engaged, under the direction of its engineer, formed a circle about the place where the pole was to be set up to protect those engaged in the excavation; and that when plaintiff attempted to go through the circle, in order to prevent the digging and tearing up of her pavement, she was resisted by the men in line, who struck, pushed or jostled her in such a way as to cause hurts and bruises upon her person. The trial judge charged, among other things: That the placing of the pole on plaintiff's land was an illegal act; that plaintiff did what she had a right to do, if she saw fit, to try to use sufficient physical force to prevent the trespass; that the mere placing of hands upon plaintiff gave her a right to a verdict for nominal damages merely, if no injuries resulted. Upon review, held: (1) That under the evidence the defendant company was liable for these acts of its employees, as being within the scope of their employment. (2) That this result was not defeated, because it was testified by one of the employees that, in laying his hands upon the plaintiff, it was done with humane purpose only to save her from impending danger; the principle being that what is essentially a trespass cannot become lawful because having been done with good intent."

Master and Servant-Tort of Servant-Scope of Employment.-In South Covington & C. St. Ry. v. Cleveland, decided by the Court of Appeals of Kentucky in March, 1907 (100 S. W. 283), it was held that where it was within the scope of the employment of a street railway company's inspector to see and converse with persons injured in street car accidents to learn the cause of the accident and the extent of the injury, the company was liable for indig nity inflicted by him upon an injured woman by putting his hands upon her person, though the conduct was a step beyond his line of duty. The court said in part:

"A vigorous attack is made on the action of the trial court in permitting evidence of the assault by its inspector to go to the jury and in instructing that damages might be awarded therefor. The argument is pressed that if the inspector did lay his hand on appellee, in so doing he was acting entirely without the scope of his employment, and appellant cannot be held responsible for his conduct. It may be conceded that the master is not liable for the acts of his servants unless they are committed within the apparent scope of his employment or in the attempted discharge of his duties he is directed or engaged to perform. The difficulty in close cases arises in determining when the servant ceases to act for his master and assumes to act for himself, and

upon his own responsibility. The courts of last resort, as well as text-book writers, have frequently endeavored to lay down some satisfactory rule that will be at once just to the master and to the public. | The facts of each case are generally different. The duties and authority of servants and agents are so various that it is impracticable to set down any hard and fast rule that can be applied to every case. In the action before us it was entirely within the scope of the inspector's duty to see and converse with injured persons, to ascertain their wants, learn how the accident occurred, and inquire as to the extent of the injury inflicted; and, in the performance of this duty, the inspector did go into the room where the appellee was lying. He went, however, a step beyond the strict line of his duties in placing his hand upon the person of appellee. And, as this act upon his part is the sole offense committed by him, for which | it is sought to hold the master liable, it is said that it cannot be held responsible for this indiscreet and rude conduct, because not done in the performance of his duties or the scope of his employment. It is evident that in approaching appellee the inspector was acting in the interest of the company, and in laying his hands upon her person he was attempting to ascertain the extent of her injuries for its benefit. The law under circumstances like these will not undertake to make any nice distinctions fixing with precision the line that separates the act of the servant from the act of the individual. When there is doubt, it will be resolved against the master, upon the ground that he set in motion the servant who committed the wrong. (Thompson on Negligence, §§ 554, 563; New Ellerslie Fishing Club v. Stewart, 93 S. W. 598, 29 Ky. Law Rep. 414; Williams v. Southern Ry., 73 S. W. 779, 24 Ky. Law Rep. 2214; Smith v. L. & N. R. R., 95 Ky. 11, 23 S. W. 652, 22 L. R. A. 72; Patterson v. Maysville & Big Sandy Ry., 78 S. W. 870, 25 Ky. Law Rep. 1750; Louisville Water Co. v. Phillips, adm'r, 89 S. W. 700, 28 Ky. Law Rep. 557; Sullivan v. L. & N. Ry., 74 S. W. 171, 24 Ky. Law Rep. 2344.) We therefore conclude that appellant is liable for the acts of its inspector."

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LEGAL NOTES.

The late Sir Francis Jeune, says the Westminster Gazette, is credited with the opinion-and he had some knowledge of old Venetian law-that Portia ought not to be represented as counsel in the trial scene of "The Merchant of Venice," but as judge. Mr. R. C. Carton, the dramatist, holds similar views. These ideas have been put into force by Mrs. Russ Whytal, for some time leading lady with Mr. E. S. Willard, in her initial production of the play at Hull this week. She now for the first time-presents

the disguised Portia in the judge's seat, immediately below that of the Duke of Venice, who, it is contended, was a mere lay figure, who, ex-officio, presided over the court. Shylock, we know, refers to Portia as a "wise young judge," and she is also appealed to by Antonio to give judgment. And it is Portia who, in the end, pronounces judgment, the Duke merely echoing the "learned doctor's" deliv

erance.

Ambassador Bryce delivered the principal oration at the services on Jamestown Island commemorating the landing of the first English colony on American soil, May 13, 1607. Two notable passages in the brief report of the address are worthy of attention. In one of them Mr. Bryce says of the founders of Virginia: "They came from a free country, though its freedom had not yet been placed on a secure foun dation; and the spirit of liberty and the love of safe government glowed in their hearts. Whether they

had any law books does not appear. But they car ried in their breasts the principles and traditions of the common law of England, which, of all the legal systems that have ever been framed, is the one most fully pervaded with the spirit of liberty and the most favorable to the development of personal self-reliance

and individual responsibility." That passage is vital, palpitating with truth and suggestiveness, par ticularly at this time when America is receiving & vast flood tide of immigration of races and classes who know nothing of the "principles and traditions of the common law of England." Many of the early settlers of Virginia were personally devoid of quali ties which make for good citizenship. They were not all heroes and heroines. Some were practically vagabonds shipped to the new world by their families or the authorities to get rid of them. There was a traffic in women also, but it was carried on with a view to supplying the colonists with wives and not for immoral purposes. But defective in personal character and habit as many of them were, they were heirs of the English common law, and under the guidance of their rulers soon developed the great common. wealth which produced such sons as Washington, Jefferson, Madison, Monroe and Henry. passage uttered by Ambassador Bryce gave this sentence as the message of the old motherland "to her mighty daughter": "Cherish alike and cherish to gether liberty and law." There would never be any danger of the sons of the English colonists in Vir ginia or in New England going far astray from that injunction if left to follow unhindered their own im pulses. Liberty and law are in their blood. In the union of ordered liberty, with a law gradually remolded from age to age to suit the changing needs of the people," said Mr. Bryce, "there was lain, and there will always lie, the progress and the peace, both

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