ively or to the people.' The argument of counsel ignores the principal factor in this article, to wit: 'the people.' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all power not granted. The powers affecting internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States."

Such a reservation of powers as Article X assumes added importance when it is remembered that it is not to be narrowed by a technical construction but, like grants of power, is to be considered liberally so as to give full effect to its scope and meaning. Weston v. Charleston, 2 Pet. 449; Robbins v. Shelby County Taxing District, 120 U. S. 489; Fairbank v. U. S. 181 U. S. 283.

The petition of the government being disposed of, the court found that the damage done Kansas by the diversion of the water of the river had not been sufficient to justify the granting of an order restraining Colorado from using the water for irrigation purposes.

The soundness of the doctrine reiterated by this case has long been apparent; and the enunciation of such views at this time is opportune as serving to bring vividly before the country the temper and conservatism of the Supreme Court. The forcible emphasis laid by the court upon the fact that ours is a government of delegated powers may serve as a significant hint to the numerous advocates of a further extension of Federal power. Also, it is conjectured, this decision will not be without its effect upon those who favor amending the Constitution.

THE POWER OF THE LEGISLATURE OF A STATE OVER ANIMALS FERÆ NATURÆ IN CAPTIVITY.

The doctrine of the ownership of wild game is, without doubt, an interesting one and a new phase of the question was brought up in the case of Dieterich v. Fargo, 104 N. Y. Sup. 334. Judge Houghton, in delivering the opinion of the court, decreed that the term "deer and venison," in a statute forbidding, with a few exceptions, its transportation, included deer bought by the plaintiff in another state and kept in a fenced park. He applied the term "domestic" to such deer, but seemed to doubt the propriety of doing

so.

Judge Lambert dissented from the opinion of the court on the ground that the statute should not be construed as changing the common law any more than necessary and that the statute should be given the same effect as if it read "wild" deer.

It seems to be a well-decided doctrine of American law that the wild game within a state belongs to the people in their collective sovereign capacity. The case of ex parte Maier, 103 Cal. 407, after stating the above doctrine goes on to say that wild game is not the subject of private ownership except in so far as the people may

elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or traffic and commerce in it if it is deemed necessary for the protection or preservation of the public good. This doctrine cannot be said to be the meat of the discussion in the present case, but it is important that it be borne in mind in our short review of the subject.

It may be interesting to view for a moment the ownership of game from a historical standpoint in order to ascertain how far animals feræ naturæ are capable of domestication and to understand how it is that the court can decree that the game laws shall cover deer in captivity.

Animals fera natura were regarded by the Romans as belonging in common to the citizens of the state, and Merlin in saying (Répertoire de Jurisprudence, vol. 4, p. 128) that "Solon, seeing that the Athenians gave themselves up to the chase, to the neglect of the mechanical arts, forbade the killing of game," shows that such ownership was recognized in an even earlier political community.

The theory of the civil law is best illustrated by a passage from Pothier's Traité du Droit de Propriété, Nos. 27-28. He says that "In France, as well as in all other civilized countries of Europe, the civil law has restrained the liberty which the pure law of nature gave to everyone to capture animals who being in naturali laxitate, belong to no person in particular. The sovereigns have reserved to themselves and to those to whom they judge proper to transmit it, the right to hunt all game, and have forbidden hunting to other persons."

In England Blackstone says: "Every man from the prince to the peasant has an equal right of pursuing and taking to his own use all such creatures as are feræ naturæ but this natural right as well as many others belonging to a man as an individual may be restrained by positive laws enacted for reasons of state or the supposed benefit of the community." 2 Bl. Comm. 410. "Undoubtedly this attribute of government to control the taking of animals fera naturæ, which was recognized and enforced by the common law of England, was vested in the colonial governments, where not denied by their charters, or in conflict with grants of the royal prerogatives. It is also certain that the power which the colonies thus possessed passed to the States with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution." Geer v. Conn., 161 U. S. 528.

The present instance of deer in a park is an illustration of the qualified property in animals feræ naturæ per industriam hominis. 2 Blackstone 391. This qualified ownership in an individual is not inconsistent with the theory of the ownership of wild animals being in the state for the benefit of the people in common. This is true because the police power still gives the state a method of control over the deer and moreover, this ownership continues only while they are within the particular person's power, and if at any time. they regain their natural liberty, his property instantly ceases; unless

they have animum revertendi; which is only to be known by their usual custom of returning. 2 Blackstone 382. It can hardly be claimed the deer in the present case have this animum revertendi and their wild nature is little if any changed. Moreover, they come within Bouvier's definition of game as being "Birds or beasts of a wild nature, obtained by fowling and hunting."

So it would seem that they were still animals feræ naturæ and would be covered by the statute even if the term "wild" were read into it before "deer and venison" as the plaintiff maintained it should be. But the court decided that the statute was undoubedly meant to cover such cases as this, where the deer were animals feræ naturæ but in captivity.

It must be acknowledged however, that, while they are under a person's control, they are as much under the protection of the law as if they were absolutely and indefeasibly his, 2 Bl. Comm. 393; and yet the police power residing in a state gives it control over the game within it, Geer v. Conn., supra; and the deer in captivity would, without doubt, be subject to such power. For even granting they are domesticated they would be within Bouvier's definition of game given above.

The principal case decides that the statute means domesticated as well as wild deer. Moreover, the deer did not lose their character as game by being in a park and it is, according to our theories, within the power of a state to exercise control over its game by reason of its police power. The plaintiff's property right was therefore subject to this power of control.

RECENT CASES

ACCORD AND SATISFACTION-PART PAYMENT BY CHECK.-ROACH V. WARREN, NEELY & Co., 44 So. (ALA.) 103.-Held, that where defendant was indebted to plaintiff, and sent him a check for part of the amount, plaintiff in collecting the check, was not bound to accept it in full of account, though the check so stated.

With but one exception, it is settled law in the United States, that when a debt is liquidated and due, in the absence of a release under seal, payment of a less sum is not a satisfaction, Fire Insurance Association v. Wickham, 14 U. S. 564, the agreement being void for want of consideration. Curran v. Rummell, 118 Mass. 482; contra, Clayton v. Clark, 74 Miss. 499, overruling Surrus v. Gordon, 57 Miss. 93. But when a claim is unliquidated, payment and acceptance of a less sum given in satisfaction operates as accord and satisfaction. Brockley v. Brockley, 122 Pa. 1. In such case, the concession made by one is a good consideration for the concession made by the other. Nassoiy v. Tomlinson, 148 N. Y. 326. Accordingly, by weight of authority, when a claim is in dispute and debtor sends a check for less sum "in full payment" the retention thereof constitutes an accord and satisfaction. Ostrander v. Scott, 161 Ill. 329; Hull v. Johnson, 22 R. S. 66. But in Day v. McLea, 58 L. J. 2 B. 293, it is held that the mere retention of check is not conclusive. To the same effect is Tompkins v. Hill, 145 Mass. 379. And where a party receives a check for amount claimed by debtor to be due, and sends debtor a protest, it is declared to be a question for the jury whether there is an accord and satisfaction. Robinson v. Detroit, etc., R. Co., 84 Mich. 658.

CARRIERS-EJECTION OF PASSenger-Action-DAMAGES-HUMILIATION.— BRENNER V. JONESBORO, L. C. & E. Ry. Co.-100 S. W. (ARK.) 893.-Held, that it was proper not to submit to the jury the issue of humiliation, in an action for the ejection of a passenger from the train, who had been unable to purchase a ticket from station-agent on account of the agent's negligence, in which he testified that he was willing to get off if the conductor refused to accept the regular fare, but that he intended to make the conductor put him off, in order that he might bring an action.

A person wrongfully ejected from a train may recover for humiliation and injury to his wounded feelings. Chicago, St. Louis, & Pittsburgh Ry. Co. v. Holdridge, 118 Ind. 281; Harding v. L. E. & W. Ry. Co., 36 Hun. (N. Y.) 72. It is unlawful to expel a passenger, who has been unable to purchase a ticket on account of the office not being open long enough prior to the arrival of the train, when the conductor is offered the regular fare. Chicago & Alton Ry. Co. v. Flagg, 43 Ill. 364. But where a party enters a train, in expectation of being put off, in order to institute a suit for. damages, for humiliation, and is put off without necessary violence, he has no cause of action. St. Louis & San Francisco Ry. Co. v. Trimble, 54 Ark. 354.

CARRIER-LIMITATION OF LIAbility—Effect.-Bates v. Weir, 105 N. Y. SUP. 785.-Held, that where a contract for the shipment of goods by express

limits the carrier's liability to $50 unless a greater value is stated by the shipper, in which case a higher rate is charged, the shipper is estopped from asserting that the goods are worth more than the sum stated. Hirschberg, P. J., and Rich, J., dissenting.

It is the rule that any contract by which a common carrier seeks to exempt itself from all liability for loss arising from its own negligence is void as against public policy. Chicago, etc., R. R. Co. v. Solan, 169 U. S. 133; South & North Alabama R. Co. v. Henlein, 52 Ala. 606; contra, Cragin v. N. Y. Cent. R. Co., 51 N. Y. 61. And so is any attempt to fix an arbitrary limitation of value. Ruppel v. Allegheny Valley R. Co., 167 Pa. 166; Galveston, etc., R. Co. v. Ball, 80 Tex. 602. But the weight of authority sustains an agreed valuation. Hill v. Boston, etc., R. Co., 144 Mass. 284; Alan v. Northern Pac. R. Co., 53 Minn. 160; contra, Southern Express Co. v. Moon, 39 Miss. 822. The limitation to an agreed value rests upon the doctrine of estoppel. Hart v. Pa. R. R. Co., 112 U. S. 331. And where the shipper, to avoid payment of increased charges, fraudulently conceals real value, he is estopped by his own conduct. Magnin v. Dinsmore, 62 N. Y. 35. On the same principle it is generally held that a stipulation limiting liability to a certain sum unless shipper discloses value in excess is valid in case of loss by negligence. Durgin v. American Express Co., 66 N. H. 277; Oppenheimer v. U. S. Express Co., 69 Ill. 62; contra, Conover v. Pacific Express Co., 40 Mo. App. 31. Nor is it the duty of the carrier to make inquiry as to value. Kallman v. U. S. Express Co., 3 Kan. 205. But if real value was known to carrier to be in excess of stipulated amount he will be liable for negligence. Van Winkle v. Adams Express Co., 3 Rob. (N. Y.) 59.

CARRIERS-PERSONAL INJURIES-LIMITATION OF LIABILITY.-Cleveland, C. C. & ST. L. RY. Co. v. HENRY, 80 N. E. 636 (Ind.).—Held, that common carriers of passengers are not permitted to contract against liability on account of their own negligence.

This broad common law rule obtains generally on the grounds of public policy. Cooley on Torts [3d Ed.] 1477. Contracts exempting the carrier or his servants from responsibility are void as attempting to put off the essential duties of the carrier. Chicago, etc., R. R. Co. v. Solan, 169 U. S. 133. The English law is affected by statute which leaves the court to determining the reasonableness of exemptions in carriers' contracts; but the courts hold exemptions from liability for negligence in the transportation of goods unreasonable. Peek v. N. Stafford R. Co., 10 H. L. Cas. 473. They, however, hold that carriers of passengers may stipulate in passes to drovers that the carrier shall not be responsible for any risks. McCawley v. Furness, L. R., 8 Q. B. 57. But the weight of authority in this country makes no exception to drovers' contracts. Illinois Cent. R. R. Co. v. Beebe, 174 Ill. 13; Railroad Co. v. Lockwood, 17 Wall. 357; contra, Bissell v. N. Y. Cent. R. R. Co., 25 N. Y. 442. But it is otherwise as to strictly free passes; Kinney v. Central R. R. Co., 34 N. J. 513; Ulrich v. New York Central, etc., R. R. Co., 108 N. Y. 80; Quimby v. Bosson, etc., R. R. Co., 150 Mass. 365; contra, Pennsylvania R. R. Co. v. Butler, 57 Penn. St. 335; Ill. Cent. R. R. Co. v. Read, 37 Ill. 484; Waterbury v. New York, etc., Co., 17 Fed. Rep. 671. In Wisconsin such exemptions are valid unless recklessness or such carelessness as is made criminal by statute is present. Annas v. Milwaukee, etc., Co., 67 Wis. 46. Exemptions for injuries to express messengers have been declared good on ground of rights accorded in excess of those to which a