taining such standard, the applicant must submit to the board, with his diploma or certificate of gradua tion, the certificate of the said Board of Regents to that effect, which will be accepted by this board as prima facie evidence of the fact. Such certificate need not be filed in cases where the Board of Regents, by a general certificate, has certified to this board that the said college or university maintains a satis factory college standard leading to the degree with which the applicant graduated. In all other cases the applicant must submit with his diploma or certificate of graduation satisfactory proof of the course of study completed by him and of the character of the college or university of which he claims to be a graduate.

RULE IV. The papers filed by each applicant must be attached together, and there must be indorsed upon them the name of the applicant. The papers must be entitled, “In the matter of the application of for admission to the Bar." Each applicant must state the beginning and the end of each term spent in a law school, as well as the beginning and the end of each vacation that he has

nad.

RULE V.--An applicant who has been admitted as an attorney in the highest court of original jurisdiction of another State or country, and who has remained therein as a practicing attorney for at least one year, may prove the latter fact by his own affidavit, and must present also a certificate from a judge of the court in which he was admitted or from a county judge in said State, certifying that the applicant had remained in said State or country as a practicing attorney for said period of one year after he had been admitted as an attorney therein. The signature of the judge must be certified to by the clerk of the court or by the county clerk under the seal of the court.

cer

RULE VI. The board will divide the subjects of examination into two groups, as follows: Group 1, Pleading and Practice and Evidence; group 2, Substantive Law. Each applicant will be required to obtain not only the requisite standard on his entire paper but also in group 1 to entitle him to a tificate from the board. If he obtains the required standard on his entire paper but fails to obtain the same in group 1, he will receive a pass card for group 2 and will not be required to be re-examined therein. He will be re-examined in group 1 at any subsequent examination for which he gives notice as required

by these rules.

NOTE.-Applicants should file their papers at the earliest possible moment; amendable defects may be discovered, which can be corrected if attended to promptly.

Liability of Insane Person in Tort. In Ward v. Rogers, in the New York Supreme Court, Queens, Special Term (July, 1906, 51 Misc. 299), it was held that an incompetent person is not liable for damages sustained by a person in falling through a hole in the floor of his building which has been left unguarded by the negligence of his committee, nor is the committee liable therefor in his representative capacity. Commenting upon this case editorially, the Harvard Law Review for February, 1907, has this to say:

Where the law fixes an absolute liability on the owner of property for damage suffered by others through that property, it is proper that an insane owner should bear the same burden as a sane one. On the other hand, if responsibility for a certain tort can be fixed on a particular person only because of some fault, it would seem that the responsibility o an insane actor should depend on whether or not he was, as to those acts, a blamable person (Clerk and Lind., Torts, 4th ed., 48). The cases recognize that an occupier of land is not an insurer of its safety as to invited persons, but only owes a duty of reasonable care to prevent damage from unusual danger (Larkin v. O'Neill, 119 N. Y. 221). In the principal case it is a fair inference that the defendant s insanity precluded any possibility of his having been personally blameworthy. Further, he was not liable on principles of agency, for his committee was not in control of the property as his agent, but as an officer of the court (Kent v. West, 33 N. Y. App. Div. 112). The decision of the court is, therefore, sound, but in principle seems inconsistent with the doctrine previously enunciated by the New York Appellate Division (McCabe v. O'Connor, 4 N. Y. App. Div. 354; Cf. Williams v. Hays, 143 N. Y. 442)."

We would suggest that the present decision is not inconsistent with McCabe v. O'Connor (4 N. Y. App. Div. 354), in which case infancy was relied on as a defense to an action for damages resulting from the falling of a wall standing on the property of the defendants on the line between it and that of the plaintiff. It is stated that "the record in this case does not contain the evidence," and the court expressly says:

"Negligence is found here as a matter of fact. What the proofs were we cannot say, as the evidence is not here. It may have been shown that negligence

was based on their (defendants') personal acts. It was found that they occupied the property. If occupants, clearly they might under proper proofs be charged with negligence (2 Addison on Torts, 1126; Schoulers Dom. Rel., 2d ed., 564). We cannot reverse if in any view of the facts found the judgment was proper."

The case of Williams v. Hays (143 N. Y. 442; 157

id. 541) established for this State that an insane person may be liable for his torts of nonfeasance as well as misfeasance. It was laid down as a general proposition that an insane person may be liable for negligence, but such rule was very properly qualified in the later decision of the case by holding that where temporary insanity is occasioned by an unusual and protracted physical strain a person may not be held to legal responsibility.

We concur with the Harvard Law Review that the principal case was rightly decided. As the lunatic could not on the facts be charged with personal acts or omissions, he would be held liable, if at all, only on the assumption of agency, and it seems very clear that the committee is not the insane person's agent. By the adjudication of incompetency and the appointment of a committee the lunatic's capacity to perform legal acts is taken from him. He cannot appoint an agent, and it would be not only illogical, but unjust to make him or his estate responsible on the theory of an implied agency.-N. Y. Law Journal.

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Liability of Water Company to Citizen for Loss by Fire Because of Insufficient Water Supply.

The decision of the Supreme Court of Florida in Mugge v. Tampa Water Works Company (42 So. 81) has been the subject of extended comment in legal periodicals throughout the country. The substance and grounds of the decision are succinctly set forth in the following syllabus by the court:

"Where a water works company enters into a contract with a city, by the terms of which it enjoys extensive franchises and privileges, such as the right to use the streets with its mains and hydrants, and to have special taxes levied on the property of the citizens, to be paid to it for its supply of water for public use in the extinguishment of fires, besides other rights and franchises, and thereby assumes the duty of furnishing water for extinguishing fires, and under such a contract constructs and operates its plant, and enjoys the proceeds of such special taxation, it enters upon a public calling and owes a duty to the taxpayers of the city to furnish water for the purpose of extinguishing fires, and it is liable in an action of tort for damages to a taxpayer whose property is destroyed by fire on account of its negligence in not furnishing water in accordance with the terms of the contract. In such case the contract furnishes the measure of its duty."

The opinion of the court concedes that its decision is contrary to the strongly preponderating weight of authority, and beyond doubt the desirableness of the result reached was a very important factor. The only

favoring cases which the Florida court could cite were from the courts of Kentucky and North Carolina and the decision of the Supreme Court of the United States in Guardian Trust Company v. Fischer, 200 U. S. 57. The real bearing of the case last mentioned is explained infra. The authority of New York is contrary to that of the Florida case as appears in Wainwright v. Queens County Water Company, 78 Hun, 146. It would seem that the Florida decision amounts to judicial legislation. Among the many comments which have appeared we would select the following extract from a very elaborate note by A. M. Kales, Esq., in the Green Bag for February, 1907 (XIX Green Bag, 132):

"Twenty-three cases arising in twenty jurisdictions and involving the same point as the principal case have resolved the problem of liability in favor of the defendant (Liability of water companies for fire losses, Michigan Law Review, May, 1905). In only one was the decision in any way confined to the question of liability in contract (Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S. W. 784). In all the others any action, whether in tort or in contract, was denied. In all but two the pleading was under a code, and it made no difference what the form of the action was, whether contract or tort, and in all of them the plaintiff failed because he had no cause of action upon any theory. In some cases the court considered both the theory of contract and of tort (Fowler v. Athens City Water Works, 83 Ga. 219, 9 S. E. 673, 1889; House v. Houston Water Works Co., 88 Tex. 233, 31 S. W. 179, 28 L. R. A. 532; Britton v. Green Bay Water Works, 81 Wis. 48, 51 N. W. 84, 1902; Fitch v. Seymour Water Co., 139 Ind. 214, 37 N. E. 982, 1894; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24, 1878; Nichol v. Huntington Water Co., 53 West Va. 348, 44 S. E. 290, 1903). In some the court was Indifferent to terminology (Wainwright v. Queens Co. Water Co., 78 Hun, 146, 28 N. Y. Supp. 987, N. Y. Supreme Ct. 1894; Beck v. Kittanning Water Co., 11 Atl. 300 Pa. 1887; Stone v. Unionton Water Co., 4 Pa. Dist. Repts. 431, 1895; Foster v. Lookout Water Co., 3 Lea, 42 Tenn. 1879; Wilkinson v. Light, Heat & Water Co., 78 Miss. 398, 28 So. 877, 1900; Bush v. Artesian Hot & Cold Water Co., 4 Idaho, 618, 43 Pac. 69, 1895; Mott v. Cherryvale Water Co., 48 Kan. 12, 28 Pac. 989, 1892; Town of Ukiah City v. Ukiah Water & Imp. Co., 75 Pac. 773, Cal., 1904). In others still the court assumed that if there was any cause of action it must be in contract (Ferris v. Carson Water Co., 16 Nev. 44, 1881; Davis v. Clinton Water Works Co., 54 Ia. 59, 1880; Becker

v. Keokuk Water Works, 79 Ia. 419; Blunk v. Dennison Water Supply Co., 73 N. E. 210, Ohio, 1905). In the two jurisdictions which had a common law sys

tem of pleading the action was on the case in tort for damages. In both a demurrer to the declaration was sustained, the court considering whether any action lay either in contract or tort (Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24, 1878; Nichol v. Huntington Water Co., 53 West Va. 348, 44 S. E. 290, 1903). A recent case in Louisiana (Allen & Curry Mfg. Co. v. Shreveport Water Works Co., 113 La. 1091, 37 So. 980) has reversed its former decision (Planters' Oil Mill v. Monroe Water Works, 52 La. Ann. 1243, 27 So. 684), holding the water company liable. Kentucky, the original jurisdiction holding the water company liable in contract, seems to have become a trifle apologetic about its position (Graves County Water Co. v. Ligon, 66 S. W. 725, 726 Ky.). By far the most usual line of reasoning upon which the water company is held not liable on any theory is that the plaintiff is not in any proper sense the beneficiary of the obligation on the part of the water company to the municipality. This is most succinctly put in Allen Curry Mfg. Co. v. Shreveport Water Works Co., 113 La. 1091, 37 So. Rep. 980; see also Britton v. Green Bay Water Works, 81 Wis. 48, 56, 51 N. E. 84; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24, 29; House v. Houston Water Works Co. 88 Tex. 233, 239, 31 S. W. 179; Howsmon v. Trenton Water Co., 119 Mo. 304, 314, 24 S. W. 784; Blunk v. Dennison Water Supply Co., 73 N. E. 210, 211, Ohio. See further to the same effect, but not so succinctly, Wainwright v. Queens County Water Co., 78 Hun, 146, 28 N. Y. Supp. 987; Ferris v. Carson Water Co., 16 Nev. 44, 47; Nichol v. Huntington Water Co., 53 West Va. 348, 44 S. E. 290; Fitch v. Seymour Water Co., 139 Ind. 214, 37 N. E. 982; Wilkinson v. Light Heat & Water Co., 78 Miss. 389, 28 So. 877. In the Texas case (House v. Houston Water Works Co., 88 Tex. 233, 31 S. W. 179, the court distinguished between the right of the sendee of a telegram to sue the telegraph company in tort for negligence, and the non-liability in tort of the water company to the inhabitants in case of loss by fire on the ground that in the former case the telegraph company is serving directly the person to whom the message is sent.

Guardian Trust Company v. Fisher, 200 U. S. 57, does not in fact hold in the slightest degree that an action of tort lies against the water company. There judgment had been obtained in the State courts of North Carolina against the water company for loss by fire. In foreclosure proceedings against the water company in the United States Court these judgments were proved up as claims. The question of liability was absolutely closed. The only question was whether the judgments were in tort or contract. If they were in the former then they took priority over the bonds. The North Carolina court had already held the judgments to be in tort. The United States Circuit

Court held the same way, and in the United States Supreme Court this was affirmed. No question of the propriety of the judgments was up. The only question was, What was their character? The Supreme Court while denied all right to consider the validity or propriety of the judgments, were asked to say upon what legal theory they rested. They evidently regarded the tort theory as more possible than contract. Then they stated the most plausible ground of tort liability which they could invent. By this means the character of the judgments only, and not their propriety, was fixed. Obviously there is nothing in such a decision which lends the slightest countenance to the holding on the merits of the question that a judgment in tort is a proper one.

The difficulty in the class of cases of which the principal is one is the opportunity which is afforded to a court, swayed by sentiment and sympathy, of making a special rule for a particular case contrary to a general rule of the greatest fundamental importance, and by way of infringement upon the peculiar province of the Legislature."-N. Y. Law Journal.

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Extradition to Porto Rico.

GOVERNOR OF PORTO RICO HAS AUTHORITY TO DEMAND SURRENDER OF FUGITIVE FROM JUSTICE.

N. Y. SUPREME COURT-APPELLATE DIVISION. FIRST DEPARTMENT.

February, 1907.

Present: Hons. Edward Patterson, P. J.; George L. Ingraham, Chester B. McLaughlin, Frank C. Laughlin and James W. Houghton, JJ.

PEOPLE EX REL. ABRAHAM KOPEL, appellant, v. THEODORE A. BINGHAM, as police commissioner, respondent.

When Congress established a civil government for the Island of Porto Rico under the control and authority of the United States, Porto Rico became an organized Territory of the United States, and its Governor, as the executive authority of a Territoryand especially under the "Foraker Act" of April 12, 1900 (section 17), expressly conferring upon the Governor of Porto Rico all the powers of Governors of Territories of the United States-has the right under section 5278 of the United States Revised Statutes to call upon the Governor of a State for the surrender of a fugitive from justice, and where such a demand is made by the Governor of Porto Rico on the Governor of New York, section 827 of the Code of Criminal Procedure, declaring the latter Governor's duty and providing for a judicial hearing, applies.

Appeal from order dismissing writ of habeas corpus and remanding relator into custody.

Albert R. Page for appellant; Robert S. Johnstone, deputy assistant district attorney, for respondent.

INGRAHAM, J.-It seems to have been held by the Court of Appeals in People ex rel. Cockran v. Hyatt, 172 N. Y. 176, that no person can or should be extradited from one State to another unless the case falls within the Federal Constitution or statutes, and that the power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the States. The Constitution of the United States provides (art. 4, sec. 2, subdiv. 2), that "a person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." Under this clause of the Constitution Congress has enacted (sec. 5278, U. S. Rev. Stat.), that "whenever the executive authority of any State or Territory demands any person as a fugitive from justice of the executive authority of any State or Territory to which such person had fled it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured and to cause the fugitive to be delivered." Section 5270 (U. S. Rev. Stat.) provides for the extradition of fugitives from justice to a foreign country. This section contains a provision that was added in 1900 (Act of June 6th), which provides that "whenever any foreign country or territory, or any part thereof, is occupied by or under the control of the United States, any person who shall violate, or who has violated, the criminal laws in force therein, by the commission of any of the following offences;" (then follows an enumeration of the of fences), "and shall depart or flee, or who has departed or fled from justice therein to the United States, any territory thereof or to the District of Columbia, shall, when found therein. be liable to arrest and detention by the authorities of the United States and on the written request or requisition of the military governor or other chief executive officer in control of such foreign country or territory shall be returned and surrendered as hereinafter provided to such authorities for trial and under the laws in force in the place where such offense was committed.

Provided further, that such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing probable cause that he is guilty of the offense charged. ... If so held such person shall

be returned and surrendered to the authorities in control of such foreign country or territory on the order of the Secretary of State of the United States.” It was further provided that the provisions of sections 5270-5277 (U. S. Rev. Stat.), as far as applic able, shall govern proceedings authorized by this proviso. These provisions all relate to the surrender of a fugitive from justice by the Secretary of State to the government of a foreign country, and have no relation to the surrender of fugitives from justice from one portion of the United States to another.

Section 5278 (U. S. Rev. Stat.) then provides that "whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, .. and to cause the fugitive to be delivered to such agent when he shall appear. This provision of the Revised Statutes was originally passed on February 12, 1793, and it seems to have been in force from that time to the present.

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By section 827 of the Code of Criminal Procedure, it is provided that "it shall be the duty of the gov ernor, in all cases where by virtue of a requisition made upon him by the governor of another State or Territory, any citizen, inhabitant or temporary resident of this State is to be arrested as a fugitive from justice to issue and transmit a warrant for such purpose to the sheriff of the proper county

(except in the city and county of New York, where such warrant shall only be issued to the superintendent or any inspector of police). Before any officer to whom such warrant shall be directed or instructed shall deliver the person arrested into the custody of the agent or agents named in the warrant of the governor of this State, such officer must, unless the same be waived, as hereinafter stated, take the prisoner or prisoners before a judge of the Supreme Court or a county judge, who shall in open court, if in session, otherwise at chambers, inform the prisoner or prisoners of the cause of his or their arrest," and that he or they may have a writ of habeas corpus upon filing an affidavit to the effect that he or they are not the person or persons mentioned in said requisition.

The question presented in this case would therefore seem to be whether Porto Rico is a State or Territory within section 5278 (U. S. Rev. Stat.) or a foreign country or territory occupied by or under the control of the United States. In the latter case the extradition must be under the provisions of section 5270 (U. S. Rev. Stat.); while if Porto Rico is a Territory of the United States the relator may be