v. United States, 15 Sup. Ct. Rep. 394. Mr. Justice White, who delivered the opinion of the court, lays down the principle that a presumption is, of itself, evidence, while the doctrine of reasonable doubt applies only to the effect of the evidence, and therefore to say that the one is the equivalent of the other is to say that the exclusion of an important piece of evidence can be justified by charging correctly as to that part which is not excluded.

The definition of a presumption as evidence is, perhaps, not perfectly consistent with the definition of evidence as a "matter of fact to be used as a basis of inference to another matter of fact" (3 HARVARD LAW REVIEW, 142). And the presumption of innocence, however it be defined, does not seem as clear and satisfactory in its nature and effect as do presumptions in general. It is easy to understand the nature and effect of all presumptions in favor of facts which would otherwise have to be proved. Such presumptions are an alleviation of proof, the levamen probationis of the Roman law, and their effect is to throw upon the opposite party the duty of going forward with evidence. Thus if it is necessary for a prosecutor to prove the sanity of a prisoner, or for a plaintiff to prove the immemorial antiquity of a custom, the presumption comes to his assistance, he is relieved of the duty of proving a part of his case, he has thrown upon his adversary the duty of going forward with evidence. But the presumption of innocence seems to be wholly different in its nature and effect. It is not an alleviation of proof, because the prisoner has no duty to prove innocence, nor does it throw upon the opposite party the duty of going forward with evidence, for that duty is already upon the opposite party by the merciful requirement of the criminal law that the prosecution shall prove guilt, and prove it beyond a reasonable doubt. What, then, is the significance of the presumption of innocence? Textwriters of distinction and one or two courts (Chamberlayne's Best on Ev. 1893, p. 309; 1 Stephen, Hist. Crim. Law, p. 438; Moorehead v. State, 34 Oh. St. 212; People v. Potter, 89 Mich. 353; People v. Graney, 91 Mich. 646) have believed that the expression means nothing more than that the burden of proof is on the prosecution to establish the prisoner's guilt beyond a reasonable doubt. The anomalous nature of the so-called presumption, its uncertain effect on the case, the ample protection afforded the prisoner by the burden of proof on the prosecution, and the fact that the presumption is said to be rebutted only by proof beyond a reasonable doubt, are among the considerations which have led to this belief. Mr. Justice White is of opinion that those who entertain it have failed to discriminate properly.

The actual decision is merely that a point-blank refusal to charge that there is a presumption of innocence, is error. In so far as this means that the refusal, if unexplained, might mislead the jury and prejudice them against the prisoner, it would perhaps be assented to even by the courts and text-writers, who deny the distinction between the presumption of innocence and the duty of establishing. The prisoner is clearly entitled to have the jury understand that there is no presumption of guilt. But it does not seem necessarily to follow that there is a presumption of innocence. It may well be that there is no presumption at all, and if there is one, its effect on the case would seem to be too indefinite and misty to make it of much practical assistance to a jury.

NEW COMMERCIAL COURTS IN ENGLAND. The expense and delay of mercantile litigation is a common and not unjustified source of complaint among business men, who feel that deterring suitors from enforcing their rights through a fear that justice will cost more than it is worth is hardly a legitimate application of the maxim that it is the policy of the law to discourage litigation. Some properly authorized method of judicial arbitration has been the remedy most frequently suggested. Some time ago England provided for the settlement of large classes of actions by private arbitration under certain regular rules; but after a full trial the system has given much less relief than was expected. The judicial inexperience of lay arbitrators, their lack of coercive power, their tendency to compromise, and the difficulty of avoiding appealable irregularities in their proceedings have shown that arbitration is successful only within narrow limits.

In consequence of this failure, what is called a Commercial Court has just been established, solely to determine mercantile disputes. It is intended to combine the authority and experience of an able judge with an elastic procedure adapted to the prompt settlement of actions. It certainly seems more sensible to shape the public tribunals of justice to existing needs than to shift the burden to the shoulders of private arbitration, and the importance of this latest experiment is by no means confined to the country making it.

COMPARATIVE LEGISLATION. That neat and useful little summary of State legislation in 1894 in the New York State Library Bulletin, is now at hand, and gives, as usual, a concise and comprehensive view of its subject. A glance at the array of material suggests how much food for reflection lies in this topic, and how inadequately treated it usually is. It is, perhaps, not surprising that the ordinary lawyer, rushed with business, should content himself with noticing only the statutory changes in the law of the jurisdiction in which he practises, but it certainly is somewhat to be regretted. Such summaries as these, and such addresses as Judge Cooley's at the meeting of the American Bar Association in 1894, call attention only too unmistakably to the importance and the past neglect of the study of comparative contemporaneous legislation.

BANKER'S LIEN. A recent decision in Kentucky is of interest as a new authority on an old and much disputed question in the law of banker's lien. The facts of the case were these. A bank discounted and held a note, and at the maturity thereof held on general deposit for the maker a sum sufficient to pay the note. It permitted this sum to be checked out, and the question was whether the defendant, a surety on the note, was thereby discharged. Defendant had signed the note, which presumably was a joint and several one, as a co-maker, but the bank knew that he was only a surety. The Court of Appeals of Kentucky held that the surety was discharged. Pursifull v. Pineville Banking Co.'s Assignee, 30 S. W. R. 203. The authorities are irreconcilable, but it is believed that on principle the decision is perfectly sound. In accord with it are McDowell v. Bank of Wilmington, 1 Harrington (Del.), 369; Bank v. Henninger, 105 Pa. St. 496. And see Morse, Banks and Banking, 3d ed. § 503. The opposite view is taken in Bank v. Hill,

76 Ind. 223; Voss v. Bank, 83 Ill. 599; Martin v. Bank, 6 Har. & J. 235; Bank v. Peck, 127 Mass. 298 (obiter).

It is of course well settled that in cases of this sort the bank may, if it chooses, refuse to pay so much of its debt to the depositor as will equal the debt which the depositor in turn owes the bank. If this right of refusing to pay, which is sometimes called a set-off and sometimes a lien, is a genuine lien, it would seem to follow that the bank, by voluntarily paying the depositor's claim, relinquished a lien, and so discharged a surety on the depositor's note, in like manner as the relinquishment of any other security would discharge a surety. May not this right of refusing to pay the depositor's claim very properly be regarded as a lien a lien on the claim? It gives the bank the right of retaining control over the claim for the purpose of security, and such a right, when given by law over the property of another, is certainly very similar to a lien. To be sure it is a lien on a chose in action, but that does not seem to be an insuperable difficulty. A stock certificate is a chose in action, and clearly the bank would have a lien on a stock certificate deposited with it, even if the certificate happened to be one of its own, and so, as in the principal case, a claim against the bank itself. The only difference, so far as is perceived, between the case of the stock-certificate and the principal case, is that in the latter there is no formal assignment to the bank of the depositor's claim, the chose in action. But as the law has already given the bank power to deal with the claim for its security in like manner as if it had been assigned, a formal act of assignment does not seem to be called for.

If it be conceded that the banker's right of control over the depositor's claim is a lien on the claim, there would seem to be no difficulty on principle with the Kentucky decision; for payment of the claim would clearly be a relinquishment of the lien, and so a discharge of the surety. That the result which the case reaches is a desirable one from the standpoint of justice and convenience seems hardly open to question. If the bank wishes to be polite, and honor its depositor's checks regardless of the state of accounts between them, it ought not to call on the surety to make good the resulting loss.

STATUTE OF LIMITATIONS. An interesting point, apparently a novel one in this country, has arisen in the Pennsylvania courts (Lewey v. Frick Coke Co., 31 Atl. Rep. 261). The defendant company mined coal under the plaintiff's land, inadvertently it would seem, though the report is not clear. For seven years the plaintiff had no means of discovering the defendant's act. The defendant, in an action of trespass, set up the Statute of Limitations. The court, in its alternative capacity of court of equity, treated the action as though the plaintiff had brought a bill of account for coal taken; and declined to apply the Statute of Limitations on the ground that before a plaintiff has had reasonable means of discovering the existence of his cause of action, equity will not allow the Statute of Limitations to operate as a bar to his suit. The court satisfactorily distinguishes an underground trespass, with its exceptional characteristics, and its difficulty, often impossibility, of speedy discovery, from a surface trespass, where the owner of the close is held to know, constructively at least, of any invasion of his boundaries. Some hesitation may be felt in admitting the propriety of allowing a bill of accourt for coal taken with

out more; or in accepting the broad rule here laid down as governing the courts of equity in applying the Statute of Limitations. Yet English authority is in accord with the case on both points (Ecclesiastical Commissioners v. N. E. R. Co., 4 Ch. Div. 845; Bainbridge, Law of Mines, 311). Certainly the doctrine that equity will not apply the Statute of Limitations before the plaintiff has been guilty of laches appears sound on principle (Brooksbank v. Smith, 2 Y. & C. 58) and thoroughly sensible. The case is likely to be followed when the question arises in other jurisdictions. To be sure, the court in the principal case attempts to lay down, as another reason for not applying the statute, that failure to disclose an inadvertent trespass is fraud; but that position seems indefensible either on principle or authority (Dawes v. Bagnall, 23 W. R. 690).

BREACH OF CONTRACT TO DELIVER IN INSTALMENTS.- A recent New Jersey case (Gerli v. Poidebard Silk Mfg. Co., 31 Atl. 401) denies the doctrine of Norrington v. Wright, 115 U. S. 188, that, when there is a contract to deliver goods in instalments, a failure as to the first instalment gives the buyer a right to terminate the contract. In the New Jersey case the agreement called for the delivery of thirty bales of silk in three equal monthly instalments, and the defendant was held unjustified in cancelling the contract upon a failure to deliver the first instalment. The ground for this decision seems to have been that the plaintiff's breach did not evince an intention to abandon the contract, or not to be bound by its terms, following the English rule laid down in Mersey Steel Co. v. Naylor, 9 App. Cas. 434.

Neither the rule in Norrington v. Wright, which perhaps would not be followed literally by the United States Supreme Court, nor the one recognized by the New Jersey Court, seems satisfactory in all cases. A breach in regard to the first instalment ought not to be fatal to the entire contract, unless of such extent or nature as substantially to imperil the objects of the contract, or to create a reasonable apprehension of such a consequence. Other things being equal, doubtless an abandonment of the contract is often justified by a breach in limine of less magnitude than would be required if it occurred after part performance by the party in default; but this is not merely because the breach occurs at the outset, but because a breach at that time may be more significant of ultimate failure than one that happens later, and especially because no equities have been created between the parties by benefits received under the

contract.

On the other hand, any breach that does substantially interfere with the objects of the contract ought to be good ground for a rescission or abandonment, no matter how excellent the intentions of the party in default. That the aggrieved party may obtain compensation for future breaches as well as past ones, should his confidence prove misplaced, does not help the New Jersey argument very much. The same might be said of any contract whose conditions have been partly but substantially violated, and the abandonment of a broken contract would seldom be legally possible to the innocent party. Whatever may be the ethical importance of good intentions they manifestly have little commercial value to the man who sees a lawsuit between himself and the realization of the profits of his contract.

It is hardly good common sense, and it is difficult to believe it is good

law, to compel a purchaser either to rely upon the uncertain future performance of a seller already in default, or to buy his goods elsewhere at the risk of responding in damages should the original vendor prove prepared to fulfil the remainder of his contract. On the facts of this particular case the dissenting opinion of Van Syckel, J., seems the better view.

ANOTHER TURNTABLE DECISION. An interesting and only too frequent problem presented to courts for solution is whether a little fellow attracted by an unfastened turntable can recover against a railroad company for negligence, a question usually depending entirely upon the existence of a duty in the case. In Walsh v. Fitchburg R. Co., 39 N. E. R. 1068, reversing Walsh v. Fitchburg R. Co., 28 N. Y. Supp. 1097, the New York Court of Appeals has expressed a strong opinion, almost decided, -- almost, for the case is, perhaps, explainable on other grounds, that he cannot. This result is, doubtless, in accord with some of the most carefully considered judgments on this point, but is, on the whole, rather against the numerical weight of authority. The latter cases, while not claiming that landowners must furnish safe premises for trespassers, contend that contrivances introduced, liable to allure children, must not be carelessly allowed to become death-traps for the young and unwary. This doctrine, although attempting to distinguish between juvenile and adult trespassers, and easily capable of being made ridiculous by too great an extension, seems fair and just enough if properly limited, as in this connection. There is no endeavor to impose an insurer's liability, only reasonable care of a most dangerous thing is demanded; nor is it hoped that vicious children can be kept away, only those who are unaware of the peril are to be protected. In some jurisdictions, the feeling that parents should be compelled to look out for their infants, and the undoubted practical truth that any recovery by the child would probably inure to the benefit of the careless guardians, have had great weight. In New York, however, where the doctrine of imputed negligence still flourishes, that reason would seem of little force. From the theoretical point of view much can be said on either side, but one cannot but sympathize with the more merciful and less technical rule, the one at which, perhaps unfortunately, the New York court did not arrive.

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VICE-PRINCIPAL DOCTRINE. The doctrine of vice-principal is whose value, theoretical and practical, may well be doubted; nor do the tests which are used in its application render it more attractive. Blomquist v. C., M. & St. P. Ry. Co. (Supreme Court of Minnesota, Apr. 9, 1895), the difficulty of a satisfactory determination as to when the superior servant is a vice-principal, has lead to a vigorous dissent by Canty, J., in which some novel and interesting principles are laid down. The theory of the learned judge seems to be that the mere authority to hire, discharge, or oversee, is not the correct test, but that the disparity must be more substantial, such as disparity of knowledge or disparity of skill. Although it is, perhaps, impossible in the present state of the law on this subject (8 HARVARD LAW REVIEW, 57) to judge accurately of the weight which is to be attached to such thoughtful discriminations, yet the careful opinion of Canty, J., is one which cannot profitably be disregarded by any person interested in the development of this doctrine.