It is submitted that the view usually held is based upon a much more fundamental reason than mere expedience. The court in this case is attempting to impose an obligation owed by the deceased upon another person, his executor. Such an imposition could be made only by a sovereign having power over the executor; and then only in connection with some act done under the sovereign's jurisdiction, since an arbitrary imposition of obligation would be impossible in our system of government. By taking upon him the administration of the estate in Pennsylvania, the executor undertook the obligation there imposed, which was to pay out of the estate there taken; an obligation for which he is responsible to the probate court of that state, the Orphan's Court, by which his nomination was confirmed. The law of New York is powerless to impose an obligation to pay in New York, for he has taken no estate in New York; it has no right to allow suit on the Pennsylvania obligation, since that obligation is to pay debts proved in Pennsylvania.

On one ground, however, New York might allow relief in this case. If there are assets in New York belonging to the deceased, the natural way of administering them is by the appointment of an administrator there. If, however, the Code of Procedure provides another way of reaching them, based on jurisdiction of them in rem, the proceeding is legal provided reasonable steps are taken to protect the interests of all concerned. The service of process on a foreign executor might be a reasonable method to secure these interests; though a personal judgment against the foreign executor would be impossible. It is to be noted, however, that goods brought into the state by the foreign executor could not be so reached, since they have become his own property; he holds them subject to the courts of his own state, but is not accountable for them to the courts of New York.91

II. In Ames v. Citizens Bank 92 a resident of New Mexico died, and his administrator, there appointed, found there a certificate of deposit for a certain amount in a Kansas bank. He came to Kansas and demanded payment; an administrator appointed in Kansas also claimed the money. The court held that payment

91 Currie v. Bircham, 1 Dow. & Ry. 35 (1822).

92 181 Pac. (Kan.) 564 (1919).

should be made to the New Mexican administrator. There was no indebtedness of the estate in Kansas.

The syllabus, prepared by the court, lays stress on the fact that the New Mexican administration was the principal one, and the Kansan only ancillary. The opinion, however, proceeds chiefly on the ground that the certificate of deposit is a specialty, and therefore assets where found. It is submitted that in writing the opinion the judge was Philip sober.

94

III. The subject of the widow's allowance has proved a puzzling one whenever an interstate application of the law is in question. In O'Hara v. O'Hara 93 the widow at the time of the husband's death was domiciled in the state, but she had since become nonresident. The court held that the right to the allowance vested at the moment of her husband's death, and allowed recovery. In re Lavenberg's Estate 4 presented a case where the widow was nonresident at the husband's death; the spouses were not separated, but lived apart for his business convenience. The court granted, the allowance. In this case, however, it seems clear that the wife's domicil was with her husband; and as between the two the allowance should be based upon domicil. A dictum in the case that the statute confers a right, no matter what the domicil of the widow, seems questionable. It is usually held that the allowance is "a humane and beneficent public policy" to keep the widow and family from want; 95 and this policy concerns the domicil alone.

CONTRACTS

I. In Kuhnhold v. Compagnie Générale Transatlantique9 there was a provision in a bill of lading on a shipment from France that all litigation arising out of the execution of the bill of lading should be adjudged according to the French law and in a designated French court which, the bill declared, was accepted by the parties. The court held that this agreement did not oust the American courts. This case may perhaps be distinguished from a case like Hamlyn v. Talisker Distillery,97 where the provision was that no action

93 182 Ky. 260, 206 S. W. 462 (1918).

94 177 Pac. (Wash.) 328 (1918).

95 Smith v. Howard, 86 Me. 203, 29 Atl. 1008 (1894).

96 251 Fed. 387 (1918).

97 [1894] A. C. 202.

should be brought for any dispute arising upon the contract until it had been submitted to arbitration in a certain way. It might be taken that the submission to arbitration is a term of performance rather than a regulation of remedy, and that there was no breach of contract until the arbitration was refused or the award unperformed. The case of Mittenthal v. Mascagni,98 however, is on all fours with the recent case; and it was there held that the American courts were ousted of jurisdiction. In view of the paucity of authorities such a conflict of decision leaves the law most uncertain.

II. Professor Lorenzen has published during the year a remarkably full and thorough study of "The Conflict of Laws Relating to Bills and Notes." 99 In this book the author examines the rules for solving conflicts in this topic in almost every civilized country. While the scope of his work does not call for new discoveries or inventions, the careful statement of so many rules of so many laws is of wonderful assistance to the student, and is indispensable for a lawyer who is handling European or Spanish-American commercial paper.

TORTS

Most of the new law in torts concerns in some way the Workmen's Compensation Act. The earlier tendency in these cases was to hold the act territorial, applying to all accidents within the state and to none outside.100 This view still gains new adherents. 101 But the view that the provisions of the act enter into the contract of hiring, and, no matter where the accident takes place, the workman may recover in the state where the contract was made, is gaining ground and seems on the whole likely to prevail. 102 Whatever the interpretation in this respect, it is clear that, in view of the special procedure called for in the cases, suit can be brought only in the courts of the state whose statute creates the right.103

Joseph H. Beale.

HARVARD LAW SCHOOL.

98 183 Mass. 19, 66 N. E. 425 (1903).

99 New Haven: Yale University Press, 1919. For a review of this work see 32 HARV. L. REV. 983. 100 In re Gould, 215 Mass. 480, 102 N. E. 693 (1913).

101 Union B. & C. Co. v. Industrial Commission, 287 Ill. 396, 122 N. E. 609 (1919). 102 Pierce v. Bekins V. & S. Co., 172 N. W. (Ia.) 191 (1919); State v. District Court, 140 Minn. 427, 168 N. W. 177 (1918).

103 Martin v. Kennecott Copper Corp., 252 Fed. 207 (1918); Thompson v. Foundation Co. (N. Y. App. Div.) 177 N. Y. Supp. 58 (1919).

THE INTERNATIONAL FLYING CONVENTION AND THE FREEDOM OF THE AIR

FOR

"The use of the sea and air is common to all."-QUEEN ELIZABETH

OR the following text of the draft of the International Flying Convention as adopted by the Peace Conference we are indebted to the English journal Flight of July 24, 1919, the official text not having been published in the United States.1

DRAFT OF INTERNATIONAL FLYING CONVENTION

The Air Ministry [of Great Britain and Ireland] on Tuesday [July 22, 1919] issued the text of the Convention relating to International Air Navigation [Cmd] agreed upon by the sub-commission dealing with aerial navigation at the Peace Conference.

The Convention has been agreed to by all the representatives, subject to certain reservations. The Convention has not been formally approved by the Supreme Council of the Peace Conference. It has, however, been agreed that it should be issued for the information of the public of the Allied and Associated States.

The following is the English text of the document, which is in English and French, both languages having equal validity:

ARTICLE I.

The contracting States recognise that every State has complete and exclusive sovereignty in the air space above its territory and territorial

waters.

ARTICLE 2.

Each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory and territorial waters as well as above the territories and territorial waters of its Colonies to the aircraft of the other contracting States, provided that the conditions established in this Convention are observed.

All regulations made by a contracting State as to the admission over its territory of the aircraft of the other contracting States shall be applied without distinction of nationality.

ARTICLE 3.

Each contracting State has the right, for military reasons or in the interest of public safety, to prohibit the aircraft of the other contracting States, under the penalties provided by its legislation and subject to no distinction being made in this respect between its private aircraft and those of the other contracting States, from flying over certain areas of its territory.

1 Since this article was written the text both in French and English has been published as Senate Document No. 91, 66th Congress, 1st Session.

If it makes use of this right, it shall publish and notify beforehand to the other contracting States the location and extent of the prohibited areas.

ARTICLE 4. Every aircraft which finds itself above a prohibited area shall, as soon as aware of the fact, give the signal of distress provided in Paragraph 17 of Annex D and land outside the prohibited area as near to it as possible and as soon as possible at one of the aerodromes of the State unlawfully flown over.

CHAPTER II. - NATIONALITY OF AIRCRAFT

ARTICLE 5. No contracting State shall, except by a special and temporary authorisation, permit the flight above its territory of an aircraft which does not possess the nationality of a contracting State.

ARTICLE 6. - An aircraft possesses the nationality of the State on the register of which it is entered, in accordance with the provisions of Section I (c) of Annex A. ARTICLE 7. An aircraft shall not be entered on the register of one of the contracting States unless it belongs wholly to nationals of such State.

An incorporated company cannot be the registered owner of an aircraft unless it possesses the nationality of the State in which the aircraft is registered, and unless the president or chairman of the company and at least two-thirds of the directors possess the same nationality, and unless the company fulfils all other conditions which may be prescribed by the laws of each State.

ARTICLE 8.- An aircraft cannot be validly registered in more than one State.

ARTICLE 9. The contracting States shall every month exchange among themselves and transmit to the International Commission for Air Navigation copies of registrations and of cancellations of registration which shall have been entered on their official registers during the preceding month.

ARTICLE IO. - All aircraft engaged in international navigation shall bear their nationality and registration marks as well as the name and residence of the owner in accordance with Annex A.

CHAPTER III.

CERTIFICATES OF AIRWORTHINESS AND COMPETENCY

ARTICLE II. Every aircraft engaged in international navigation shall, in accordance with Annex B, be provided with a certificate of airworthiness issued or rendered valid by the State whose nationality it possesses.

ARTICLE 12.

The commanding officer, pilots, engineers, and other members of the operating crew of every aircraft shall, in accordance with Annex E, be provided with certificates of competency and licences issued or rendered valid by the State whose nationality the aircraft possesses.

ARTICLE 13. - Certificates of airworthiness and of competency and licences issued or rendered valid by the State whose nationality the aircraft possesses, in accordance with the regulations established by Annex B and Annex E and hereafter by the International Commission for Air Navigation, shall be recognised as valid by the other States.

Each State has the right to refuse to recognise for the purpose of flights within the limits of and above its own territory certificates of competency and licences granted to one of its nationals by another contracting State.

ARTICLE 14. -No wireless apparatus shall be carried without a special licence issued by the State whose nationality the aircraft possesses. Such ap