trial. Weeks v. United States, 232 U. S. 383. And in the principal case the court places its decision on the ground that a court cannot compel the production of papers if the existence thereof has been revealed to the court as a result of information gained from papers unlawfully seized. Since the particular papers seem to have been incriminatory, a simpler ground for the decision seems to be that the privilege of the defendants against self-incrimination would be violated by the order in question. Boyd v. United States, 116 U. S. 616.

STATUTE OF FRAUDS - SALES OF GOODS, WARES, AND MERCHANDISE CHECK AS PART PAYMENT. - The plaintiff made an oral contract with the defendant for the sale of lambs which were worth more than $50 and gave the defendant a check. There was no agreement that the check should be absolute payment. The defendant repudiated the contract and destroyed the check. The plaintiff sued for damages. The defense was the Statute of Frauds. Held, that the contract is unenforceable. Gay v. Sundquist, 175 N. W. 190 (S. D.).

Whether a negotiable instrument is given in absolute or in conditional payment of the debt is determined by the intent of the parties. Ely v. James, 123 Mass. 36; McLure v. Sherman, 70 Fed. 190. In the absence of any express understanding, a negotiable instrument is in most states presumed to be conditional payment; i. e., valid payment, subject to the condition subsequent that if it is not paid when duly presented the old debt revives. Burkhalter v. Second National Bank, 42 N. Y. 538; Holmes v. Briggs, 131 Pa. St. 233, 18 Atl. 928. In others the presumption is one of absolute payment. O'Conner v. Hurley, 147 Mass. 145. As to whether a negotiable instrument is part payment under the Statute of Frauds, in the absence of expressed intent, the presumption of absolute payment seems preferable - giving a negotiable instrument is itself an overt act easily proved. But in a jurisdiction where conditional payment is presumed, if the instrument is duly presented but not paid at maturity, it would seem that the statute is not satisfied. But since part payment must be contemporaneous with the bargain and there is a valid part payment even in these jurisdictions, if the instrument is paid when presented, the condition must be a condition subsequent. Hunter v. Wetsell, 84 N. Y. 549; Case v. Kramer, 34 Mont. 142, 85 Pac. 878. Accordingly if the drawer stops payment, thus preventing the performance of the condition subsequent, there is a valid part payment. Hessberg v. Welsh, 147 N. Y. Supp. 44. The same should be true if the instrument is not duly presented. Contra, Groomer v. McMillan, 143 Mo. Ap. 612, 128 S. W. 285; Johnson v. Morrison, 163 Mich. 322, 128 N. W. 243. Therefore, though in line with the cases just cited, it seems that the principal case cannot be defended on principle, whether the check is presumed to be absolute or conditional payment.

TAXATION INHERITANCE TAX- COLLECTION AND ENFORCEMENT PERSONAL ACTION IN ANOTHER STATE AGAINST THE BENEFICIARIES. - A resident of Colorado died in New York leaving no property in Colorado but a great deal of personalty in New York. Colorado served the New York beneficiaries, by publication, with notice of assessment proceedings in a Colorado court which by statute had jurisdiction to proceed as in an action in rem. No one appeared, but the court issued its order that the tax had been assessed. The state of Colorado then brought an action in New York against the beneficiaries. The Supreme Court dismissed the complaint. On appeal, held, that the judgment be reversed. Colorado v. Harbeck, 179 N. Y. Supp., 510 (App. Div.).

For a discussion of this case, see NOTES, p. 840, supra.

GRATUI

TAXATION PURPOSES FOR WHICH TAXES MAY BE LEVIED TIES TO WAR VETERANS. - A Wisconsin statute provided for a special tax in order to pay a bonus of ten dollars for each month of service to all soldiers and sailors who had taken part in the war (1919 WISCONSIN LAWS, c. 667). Held, that the statute is constitutional. State v. Johnson, 175 N. W. 589 (Wis.).

For a discussion of the principles involved in this case, see NOTES, p. 846, supra.

TORTS LIABILITY OF OCCUPIER OF PREMISES-LESSEE LIABLE FOR INJURIES TO INVITEE ON PORTION OF PREMISES NOT COVERED BY LEASE. A municipal ordinance required barber shops to maintain lavatories for the use of customers. The only lavatory provided by the defendant barber was located in the cellar of the building, a part of the premises not covered by his lease. His customers frequently used this lavatory, the passageway to which was dark and dangerous, as the defendant knew. The plaintiff, a customer, was injured while going along this passageway. Held, that the defendant is liable. McCallum v. Hemphill Trade Schools, Ltd., [1920] 1 W. W. R. 114 (Alberta).

The duty of an occupier of premises towards an invitee is to use ordinary care and prudence to have those premises reasonably safe. Indermaur v. Dames, L. R. 2 C. P. 311; Pauckner v. Walkem, 231 Ill. 276, 83 N. E. 202. A patron of a shopkeeper is normally an invitee. See Schnatterer v. Bamberger, 81 N. J. L. 558, 79 Atl. 324. But the customer is not an invitee on every part of the premises. Menteer v. Scalzo Fruit Co., 240 Mo. 177, 144 S. W. 833; Herzog v. Hemphill, 7 Cal. App. 116, 93 Pac. 899. In the absence of the ordinance, there would be some difficulty in the principal case in determining whether the customer was an invitee or licensee on that portion of the premises where the injury occurred. He would probably have been a licensee. Herzog v. Hemphill, supra. An owner's constantly permitting people to use a portion of premises not devoted to business purposes is indicative of a license rather than of an invitation. Rooney v. Woolworth, 74 Conn. 720, 52 Atl. 411. But the ordinance requiring the furnishing of a lavatory would clearly make the customer an invitee, if the defendant could be said to be the occupier of the premises in which the lavatory was situated. And there would seem to be no objection to considering one who has a license to use premises an occupier for a particular purpose. But even assuming that the defendant cannot be held as an occupier of premises, the decision seems correct, because the ordinance imposes affirmative duties which may serve as the basis of liability. See Willy v. Mulledy, 78 N. Y. 310. Whether it is said that the defendant has omitted to comply with the ordinance or that in complying he has been negligent, he should be liable for proximately resulting injuries.

WAR SUIT BY ALIEN ENEMY EFFECT OF PAYMENT OF JUDGMENT TO ALIEN PROPERTY CUSTODIAN. The plaintiff, a citizen of Germany resident at Bremen, sued the defendant, a United States corporation, in the District Court and recovered judgment. Then war broke out between the United States and Germany and the defendant appealed. The Circuit Court affirmed the judgment but directed that it be paid to the clerk of court, to be handed by him to the alien property custodian. Held, on certiorari, that the judgment of the Circuit Court be affirmed. The Birge-Forbes Co. v. Heye, U. S. Sup. Ct. No. 76, October Term, 1919.

The general rule is that an alien enemy resident abroad cannot sue as plaintiff in the courts of the home country. Speidel v. Barstow Co., 243 Fed. 621; Hutchinson v. Brock, 11 Mass. 119. The reason for the rule is that a judgment for an alien enemy increases the resources of the enemy country

while diminishing those of the home country. England applies the doctrine to appeals by a plaintiff who has become an alien enemy since judgment. Porter v. Freudenberg, [1915] 1 K. B. 857. But where the judgment directs payment to the alien property custodian, our resources will not go to Germany and there seems no valid reason for refusing to settle the rights of the parties. See Rothbar v. Herzfeld, 179 App. Div. 865, 869, 167 N. Y. Supp. 199, 202. Even in the absence of an alien property custodian, it has been held that a plaintiff who has become an alien enemy since judgment can appeal. See Taylor v. Albion Lumber Co., 176 Cal. 347, 352, 168 P. 348, 350. At any rate, the result of the principal case is a necessary one, because it is a loyal defendant who is seeking relief in the Appellate Court. Owens v. Hanney, 9 Cranch (U. S.), 180.

WATERS - NAVIGABILITY - - NECESSITY OF ACTUAL USER. - By the act of 1890 Congress prohibited the building of any dams across navigable waters of the United States without authority of the Secretary of War. (26 STAT. AT L. 454.) The defendant company constructed a dam across the Desplaines River in Illinois without obtaining such authority. The United States filed a bill of complaint seeking its removal and an injunction against further action. The evidence showed that the river had been used by fur traders with canoes and flatboats as late as 1830. Since then, however, due to natural obstacles to navigation and the construction of a canal near-by, it had not been used for commerce. Held, that the relief be granted. Economy Light & Power Co. v. United States, 256 Fed. 792 (Circ. Ct. App.).

Navigable waters of the United States are those which form, by themselves, or by their connections with other waters, a continuous channel for commerce with foreign countries or among the states. The Daniel Ball, 10 Wall. 557; Miller v. Mayor of New York, 109 U. S. 385. Navigability does not depend on the character of the craft, however propelled, or the nature of the commerce. The Montello, 20 Wall. (U. S.) 430; Heyward v. Farmers' Mining Co., 42 S. C. 139, 19 S. E. 963. It is not necessary to prove long and continuous user nor adaptability for commercial use during all the seasons of the year. Moore v. Sanborn, 2 Mich. 519; Lewis v. Coffey County, 77 Ala. 190. Cf. State v. Gilmanton, 14 N. H. 467, 480. A stream is not rendered non-navigable because of temporary obstructions or because of difficulties caused by natural barriers such as rapids and sand bars. The Montello, supra; Atty. Genl. v. Harrison, 12 Grant, Ch. 466. But a stream not naturally navigable cannot be made so by artificial means so as to deprive riparian owners of their vested property rights. Yates v. Milwaukee, 10 Wall. 497; Murray v. Preston, 106 Ky. 561, 50 S. W. 1095. A navigation which is temporary, precarious, and unprofitable is insufficient. Harrison v. Fite, 148 Fed. 781; North American Co. v. Mintzer, 245 Fed. 297. The true criterion is one of sound business common sense, natural useful capacity as a public highway of transportation. Little Rock, etc. R. R. v. Brooks, 39 Ark. 403. It would seem clear that the power of Congress under "the commerce clause" extends to potential agencies of interstate commerce, regardless of their actual usage, and to the preservation of natural highways for the public. Accordingly the principal case seems correct despite the contrary decision reached by the Illinois Supreme Court in regard to the identical situation. See People v. Economy Power Co., 241 Ill. 290, 89 N. E. 760.

WILLS REPUBLICATION-INCORPORATION BY REFERENCE-VALID CODICIL REFERRING TO WILL PROCURED BY UNDUE INFLUENCE. The testator made a holographic will and some years later a holographic codocil referring to his will. The jury found that the will was procured by undue influence but that the codicil was valid and not so procured. Held, that both

the will and the codicil be admitted to probate. Taft v. Stearns, 125 N. E. 570 (Mass.).

A valid testamentary instrument may be made to speak as of a later date by a codicil. Goods of Truro, L. R. I. P. & D. 201. Moreover, in most jurisdictions any existing writing may be made part of a will by an express reference to it in the will. Allen v. Maddock, 11 Moo. P. C. 427. It is often immaterial whether a will or codicil is considered as republished by a later codicil, or as incorporated by reference. See Ingoldby v. Ingoldby, 4 Notes of Cases, 493; Gordon v. Lord Rea, 5 Sim. 274. But to preserve accuracy of terminology, a distinction might be drawn as follows: Any document that was once the valid will or codicil of the testator is republished; all other documents are incorporated by reference. The last named class would thus include wills made by married women, infants, and lunatics, wills procured by fraud, duress, or undue influence, as well as documents not properly executed. Accordingly, the court in the principal case should have spoken only of incorporation by reference and not of republication. The result reached by the court is undoubtedly correct. Pope v. Pope, 95 Ga. 87, 22 S. E. 245. Cf. Taylor v. Kelly, 31 Ala. 59.

WITNESSES PRIVILEGE OF HUSBAND AND WIFE - USE FOR PURPOSE OF IMPEACHMENT OF TESTIMONY OBTAINED IN VIOLATION OF PRIVILEGE. - A wife testified in favor of her husband, who was the defendant in a criminal prosecution. For the purpose of impeachment the state introduced one of the grand jurors, who testified that the wife had made prior inconsistent statements before the grand jury, and who related what she had said on that occasion. Held, that this testimony should not have been received. Doggett v. State, 215 S. W. 454 (Tex.).

Two distinct common-law doctrines have often been confused: the disqualification of one spouse as a witness for the other; and the privilege of one not to be testified against by the other. See WIGMORE, EVIDENCE, §§ 600, 601, 2228, 2333, 2334. Statutes have almost universally removed the disqualification but the privilege generally remains. Talbot v. United States, 208 Fed. 144. The courts, nevertheless, sometimes deal with the matter on the assumption that a spouse is incompetent to testify against the other except in criminal actions against one for injury to the other. Barber v. People, 203 Ill. 543, 68 N. E. 93; Brock v. State, 44 Tex. Cr. Rep. 335, 71 S. W. 20. On the theory of incompetency the instant decision is obviously correct. But it seems more desirable as well as more accurate to regard the matter as simply one of privilege. A privilege connotes the possibility of waiver, so that by calling his wife as a witness for him the husband should be regarded as waiving this privilege not to have her testify against him. National GermanAmerican Bank v. Lawrence, 77 Minn. 282, 80 N. W. 363. Thus, when a wife testifies for her husband, she may ordinarily be impeached in the same manner as any other witness. Bell v. State, 213 S. W. (Tex.) 647. But a present waiver cannot, of course, cure any violations of the privilege in prior proceedings. And since the statements which, in the principal case, the wife made to the grand jury were improperly obtained in violation of the privilege, proper protection of the privilege demands that their use thereafter be prohibited even for purposes of impeachment. Johnson v. State, 66 Tex. Cr. Rep. 586, 148 S. W. 328. The decision is therefore not inconsistent with the theory of privilege.

BOOK REVIEWS

RESERVATIONS TO TREATIES: THEIR EFFECT, AND THE PROCEDURE IN REGARD THERETO. By David Hunter Miller, Special Assistant in the Department of State. 1919. pp. 171.

This is a careful exposition of the practice pursued by the government of the United States in agreeing to an international treaty subject to reservations. The author undertakes to show that in every case of a real reservation the reservation became part of the final act prior to or at the time when that act was legally perfected; in other words, it was accepted by the other party or parties to the treaty. Generally, the reservation is made by the Senate; the President incorporates it in the instrument of ratification, and proper acknowledgment is made by the other party, either by its instrument of ratification or by exchange of notes, or in the protocol of exchange. The effect is, as Mr. Miller points out, that the Senate merely initiates an amendment to the treaty which the other party agrees to. One-sided declarations not acted on by the other party occur now and then with reference to matters exclusively of domestic cognizance and not concerning the other party; they are therefore not real reservations. The author (page 89) mentions the case of an explanation filed by Russia in connection with a treaty with the United States in 1824, which was not submitted to the Senate, and which the American government simply received as an interpretation, placed upon the treaty by the Russian government. Clearly, Russia could not have founded any claims upon this explanation, although later on the United States used it in support of its own contentions in the Bering Sea controversy. Where a convention leaves it open to others not parties to the original act to adhere to it by subsequent declaration, it may occur that such an adhesion is encumbered by a reservation; that simply means that the adhesion counts for what it is worth, and no question of international faith is involved.

For some reason, the author fails to comment on the Treaty with the New York Indians proclaimed by the President April 4, 1840, which was the subject of a decision by the Supreme Court (170 U. S. 1 (1898)). Here it appears that the Senate had passed a resolution qualifying its assent to the treaty, which did not appear in the President's final proclamation, and which apparently was not brought to the notice of the Indians. The Supreme Court held that the resolution was merely directory to the President and did not affect the treaty. The question of practical interest in connection with the entire subject is the application of the conclusions reached, to possible reservations made by the Senate in consenting to the Treaty of Versailles. Mr. Miller says that such reservations would in effect constitute new proposals to be submitted to the other parties to the treaty.

However, he concludes the entire exposition with the following statement: "The distinction is, therefore, highly technical, and is this: A condition which is made a part of the instrument of ratification must be recited therein. A condition precedent to the exchange or deposit of the instrument of ratification need not be so recited.

"To state the case supposititiously in regard to the Treaty with Germany, if the conditions of the Senate resolution were that certain understandings should be made part of the Act of Ratification they would have to be recited in the instrument of ratification and would require the consent of the other signatory Powers. If, on the other hand, the resolution required that the instrument of ratification should not be deposited until certain notes had been exchanged with three of the Great Powers stating an 'understanding' regarding