From the report of the last-mentioned case, it appears that the City of Hammond had instituted proceedings in one of the courts of Indiana, and had obtained a decree of that court annexing to the city certain lands belonging to Forsyth and others. Forsyth appealed from that decree; and, before the Supreme Court of Indiana, contended that the decree in the lower court was null and void as having been rendered without jurisdiction. The ground upon which this contention was made was that the proceedings for annexation of territory to the municipality were legislative, and not judicial, in their nature; or, to use the language of Mr. Justice Brewer in the case of Tregea v. Modesto Irrigation District, supra, did not constitute "a case or controversy with opposing parties, such as can be submitted to and can compel judicial consideration and judgment." The state supreme court decided in favor of the jurisdiction. Subsequently, Forsyth filed a bill in the Circuit Court of the United States for the District of Indiana, against the City of Hammond and others, to restrain the collection of certain taxes which had been levied upon her land annexed to the city as already mentioned. Her bill set forth the proceedings leading to the annexation of her lands to the city, "but averred that those proceed. ings were void because the enlargement of the limits of the city was a matter of legislative and not of judicial cognizance, and that it was not competent for the Legislature to intrust to the courts, the decision of such questions."' The Circuit Court dismissed the bill; but its judgment was reversed by the Circuit Court of Appeals which ruled in accordance with the contentions of plaintiff Forsyth. The Supreme Court of the United States reversed the decree of the Circuit Court of Appeals upon the ground "that the construction, by the courts of a state, of its constitution and statutes, is, as a general rule, binding on the federal courts," even though they think that the state court has misconstrued such constitution and statutes.

Upon the principles declared in Forsyth v. Hammond, supra, it is the duty of the inferior courts of California to give effect to a decree of confirmation duly given and made in pursuance of the Confirmation Act, in accordance with the decisions of the state supreme court; and it is equally the duty of the federal courts, whenever such a confirmation decree shall be pleaded or introduced in evidence in causes of which they have jurisdiction, to follow the state decisions. If, as the fact is, the California Supreme Court has decided that confirmation proceedings are so far judicial in their nature as to be capable of being submitted

to and of compelling judicial consideration and judgment in the state courts, the further question whether such proceedings are to be considered as operating in rem or in personam is also one upon which its decision is conclusive (Wood v. Brady, 150 U. S. 18, 23).

A consideration of the points thus far advanced will show that the original question has been narrowed to this, What construction and effect has the Supreme Court of the State of California given to the Confirmation Act?

In the case of Cullen v. Glendora Water Company, 113 Cal., 503, 511, 516, there was presented to the Supreme Court of the State of California, for its determination the very question which was passed upon by the Supreme Court of the United States in the case of Tregea v. Modesto Irrigation District, supra, the court stating the point as follows: "Counsel for appellant contend that the Act of March 16, 1889, providing for a judicial examination, approval, and confirmation of bonds of irrigation district, is unconstitutional for the reason that it authorizes a court to hear and determine what will be the rights of parties interested in those bonds, in advance of any controversy as to such rights. The Supreme Court of California ruled against this contention, and sustained the Confirmation Act as constitutional just as the Supreme Court of Indiana had upheld the constitutionality of the statute considered in the case of Forsyth v. Hammond, supra.

Not only has the constitutionality of the Confirmation Act been upheld by the Supreme Court of this State, but the nature and effect of the decree rendered in confirmation proceedings have been judicially considered and determined. In the case of Crall v. Poso Irrigation District, 87 Cal. 140, 146, it was decided, (1) that the confirmation proceeding, denominated in the act a special proceeding, is in the nature of a proceeding in rem, the object being to determine the status of the district and its power to issue valid bonds; and (2), that the judgments rendered in confirmation proceedings are conclusive and binding upon all the world until reversed on appeal, or set aside by some direct proceeding instituted for that purpose. Upon the authority of Crall v. Poso Irrigation District, supra, the Supreme Court of this State decided the same questions in the same way in the case of Rialto Irrigation District v. Brandon, 103 Cal. 384. And the same construction is placed upon the Confirmation Act in Cullen v. Glendora Water Company, supra, and in Modesto Irrigation District v. Tregea, supra, which is the very case taken

up to the Supreme Court of the United States and there reported as Tregea v. Modesto Irrigation District. Since the United States Supreme Court dismissed the case of Tregea v. Modesto Irrigation District, the Supreme Court of the State of California has exercised jurisdiction upon appeal from a decree by the Superior Court of Colusa County confirming proceedings resulting in the organization of the Central Irrigation District (in re Central Irrigation District, 49 Pac. Rep. 354). In this case no intimation is given of any change of mind on the part of the Supreme Court of this State respecting the construction and effect of the Confirmation Act.

It is to be observed that the Supreme Court of the United States, in arriving at the conclusion that a decree by a state court approving and confirming each and all of the proceedings for the organization of an irrigation district under the provisions of the Wright Act, from and including the petition for the organization of the district, and of other proceedings which may affect the legality and validity of the bonds of such district, and the order for the sale, and the sale thereof, cannot be invoked as res judicata, appears to have considered as of great importance that a decree refusing to confirm such proceedings would not be conclusive in respect to negotiable paper as against purchasers thereof without notice of the suit or decree. In that part of its opinion devoted to this point, it is submitted, the Supreme Court slightly misconceived the purpose and scope of the Confirmation Act as determined by the courts of California. The purpose of the Confirmation Act is to provide for a judicial examination and determination of the "legality and validity of all the proceedings for the organization of irrigation districts, and all other proceedings affecting the legality or validity of the bonds of such district, including the order for the sale, and the sale of such bonds." In other words, the purpose of the Act is to provide for the judicial determination of the status of the district and of the regularity of its proceedings, and only indirectly to establish the status or character of bonds as valid or invalid in their inception (Crall v. Poso Irrigation District, 87 Cal. 140, 146; in re Madera Irrigation District, 92 Cal. 296, 340).

A decree rendered, in conformity with the provisions of the Confirmation Act, refusing to approve and confirm the proceedings affecting the legality of bonds issued or to be issued, if given the force of a judgment in rem, would merely establish the fact or facts, from which the necessary inference would be that the bonds of the district were invalid in their inception.

Proof of such an adjudication would merely put upon the owner of bonds the burden of proving that he was a bona fide purchaser for value, in the ordinary course of business, before maturity (Eames v. Crosier, 101 Cal. 216; Stewart v. Lansing, 104 U. S. 505). The rights of holders of irrigation district bonds proved by such an adjudication to be invalid in their inception do not appear to have been passed upon yet by the courts. Causes involving such rights, when they arise, will undoubtedly be decided upon the facts peculiar to each case, in accordance with the usual rules which determine the liability of municipal corporations on securities issued by them.

SAN FRANCISCO, CAL., November 29, 1897.

Wm. Bradford Bosley.

RIGHTS, DUTIES AND REMEDIES OF THE PARTIES TO A SALE OF PERSONAL PROPERTY WHICH IS TO BE DELIVERED AND PAID FOR IN INSTALMENTS.

It will be convenient first to consider the legal relations of the immediate parties to the sale, and then to inquire what claims third parties have to goods sold in this manner, against the vendor and vendee. Sales on what is now known as the “instalment plan" are of comparatively recent origin, though contracts for successive deliveries will be found in the old reports. In neither case, however, have the courts taken a broad view of the subject with regard to the future development of the law, and each case seems to have been decided according to the equity of the facts in issue, thus causing a confusion in the cases which will be found upon inquiry to be more apparent than real. It is probable that, in the absence of express stipulation at least, the failure of the vendee to pay an instalment does not so readily work a forfeiture of the contract as the failure of the vendor to deliver. This is partly because the legal rate of interest is supposed to be sufficient compensation for the non-payment of money, and partly because recovery can more easily be had in an action. The question of the vendor's right to rescind for failure to pay an instalment depends, however, upon whether or not the contract is entire.1 Prima facie, such contracts are severable, but merely because a contract consists of several entire items which are not to be performed at the same time, and each of which has a stipulated value, will not be a reason for refusing to construe it as entire.3 If each stipulation "so went to the root of the matter as to make its performance a condition of the obligation to proceed in the contract" it is an entire contract.4 In all cases intention governs,5 and the mode of measuring the price will not render the contract severable if it was intended to be

1 Thomson v. Conover, 3 Vroom 466.

2 Quigley v. DeHaas, 1 Norris 267.

3 Smith v. Lewis, 40 Ind. 98.

4 Catlin v. Tobias, 26 N. Y. 217; Jenness v. Shaw, 35

5 Tipton v. Feitner, 20 N. Y. 423.

Mich. 20.