the corporation. Held, that the suit is maintainable. Converse v. Hamilton, 32 Sup. Ct. 415.

For a discussion of the principles involved, see 23 Harv. L. Rev. 37.

- DUE PROCESS OF LAW

CONSTITUTIONAL LAW - LIABILITY OF RAILROAD RIGHT OF WAY TO LOCAL ASSESSMENT. A city levied a special assessment for street improvements on adjacent property including the railroad right of way. Held, that this does not deprive the railroad of property without due process of law. Gilsonite Construction Co. v. St. Louis, Iron Mountain & Southern Ry. Co., 144 S. W. 1086 (Mo.). See NOTES, p. 723.

CONSTITUTIONAL LAW DUE PROCESS OF LAW OWNER CHARGED WITH CONTRACTOR'S DEBTS IN DEFAULT OF REQUIRING BOND FOR THEIR PAYMENT. A statute provided that every owner should take from a person contracting for the construction of his ditch or canal a bond for the payment of all debts for labor, materials, provisions, or goods of any kind, incurred in carrying on the work, or the owner should be liable for debts so contracted. The plaintiff sued an owner under this statute on an account for fodder, clothing, provisions. and other supplies furnished to a contractor. Held, that the statute is unconstitutional. Bolln Co. v. North Platte Valley Irrigation Co., 121 Pac. 22 (Wyo.).

In general the due process clause renders unconstitutional any taking of property from one person to pay the debts of another. See Camp v. Rogers, 44 Conn. 291, 297; Jones v. Great Southern Fireproof Hotel Co., 86 Fed. 370, 388. In some special relations, it may not be unreasonable under the police power to hold one sponsor for another's obligations. Thus liability can be imposed on initial carriers for damages caused by connecting carriers. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164. Landlords can be made responsible for the unpaid water rents of tenants. City of East Grand Forks v. Luck, 97 Minn. 373, 107 N. W. 393. Wherever sub-contractors are given a direct mechanic's lien, independent of the contractor, the owner is likewise charged with another's debt. But this is by reason of the equity binding his property to answer for labor or materials that have directly enriched it. Davis v. Alvord, 94 U. S. 545; Foster v. Dohle, 17 Neb. 631, 24 N. W. 208. See 25 HARV. L. REV. 274. Personal liability within the same limits has been upheld. Hart v. Boston, etc. R. Co., 121 Mass. 510. But a statute similar to that in the principal case has been held unconstitutional, though confined to debts for which a lien could be given. Gibbs v. Tally, 133 Cal. 373, 65 Pac. 970. At least that result is unimpeachable where, as here, the benefit of the goods supplied accrued not directly to the property but to the contractor's ordinary business equipment. Cf. McCormick v. Los Angeles City Water Co., 40 Cal. 185; Perrault v. Shaw, 69 N. H. 180.

CONTRACTS SUITS BY THIRD PERSONS NOT PARTIES TO CONTRACT – ACTION BY PEDESTRIAN AGAINST STREET RAILWAY FOR BREACH OF ITS CONTRACT WITH CITY TO KEEP SIDEWALKS IN REPAIR. A street railway company agreed to keep a sidewalk in repair as one of the terms upon which the city granted the use of a street. The sidewalk became out of repair, in consequence of which the plaintiff was injured. Held, that she can recover damages from the company. Jenree v. Metropolitan Street Ry. Co., 121 Pac. 510 (Kan.). Even in jurisdictions which permit a beneficiary to sue upon a contract, it is held that the contract must be primarily intended for his benefit. New Orleans St. Joseph's Association v. Magnier, 16 La. Ann. 338. But if the beneficiary has a legal or equitable claim against the promisee for the advantage which the promisor has agreed to confer, no such primary intent is necessary. Lawrence v. Fox, 20 N. Y. 268. A city owes no duty to its citizens to maintain

a given water pressure. Van Horn v. City of Des Moines, 63 Ia. 448, 19 N. W. 293; Wright v. City Council of Augusta, 78 Ga. 241. So the fact that a householder is incidentally benefited by a contract between a water company and the city is held insufficient to permit recovery for losses due to the company's failure to maintain the agreed pressure. Mott v. Cherryvale Water & Mfg. Co., 48 Kan. 12, 28 Pac. 989; Becker v. Keokuk Waterworks, 79 Ia. 419, 44 N. W. 694. Contra, Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 32 S. E. 720. Some recent cases regard maintenance of pressure as within the public duty of a water company. Guardian Trust & Deposit Co. v. Fisher, 200 U. S. 57, 26 Sup. Ct. 186; Mugge v. Tampa Waterworks Co., 52 Fla. 371, 42 So. 81. But as repairing a sidewalk is obviously not within a street railway's public calling, and as there is no evidence of misfeasance, the decision in the principal case can be sustained only on a beneficiary theory. As the city owes a legal duty to each pedestrian to keep the highway in repair, the case properly falls into the class where intent to benefit the beneficiary is immaterial. See City of Brooklyn v. Brooklyn City R. Co., 47 N. Y. 475, 485; McMahon v. Second Avenue R. Co., 75 N. Y. 231, 237.

CORPORATIONS - CAPITAL, STOCK, AND DIVIDENDS - SUIT CONTESTING OWNERSHIP OF STOCK. - An intestate died in Maryland owning stock in a Washington corporation. The local administrator in Washington filed a bill against the corporation to have his name placed on the corporate books as the owner of this stock, and served the Maryland administrator by publication. Held, that jurisdiction over the foreign administrator has been acquired. Gamble v. Dawson, 120 Pac. 1060 (Wash.). See NOTES, p. 719.

CRIMINAL LAW - SENTENCE POWER OF COURT TO SUSPEND ITS IMPOSITION OR ITS ENFORCEMENT. - A court postponed the sentence of a convicted prisoner and at a later term sentenced her to prison. Held, that she is legally imprisoned. Gehrmann v. Osborne, 82 Atl. 424 (N. J., Ct. Ch.).

A court provided in its sentence that execution of the same should be suspended during good behavior. The defendant was at liberty for a longer period thereafter than the term imposed by the sentence. Held, that the defendant can be made to serve out his term although the provision for suspension is void. Daniel v. Persons, 74 S. E. 260 (Ga.); Fuller v. State, 57 So. 806 (Miss.). The question of the inherent power of a court to suspend the pronouncement of sentence or to stay its enforcement has produced a great variety of authorities. See note to State v. Abbott, 33 L. R. A. N. S. 112. The exercise of either by the court has been objected to as an encroachment on the pardoning power of the executive. People v. Blackburn, 6 Utah 347, 23 Pac. 759. I. A statute expressly authorizing the former has been held unconstitutional for that reason. People v. Cummings, 88 Mich. 249, 50 N. W. 310. Another case, however, supports such a statute on the ground that an indefinite postponement of judgment is not a pardon, as it does not blot out guilt. People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386. And some courts regard this power as inherent in the court regardless of statutes. People ex rel. Forsyth v. Court of Sessions, supra; State v. Crook, 115 N. C. 760, 20 S. E. 513. Courts not recognizing the power generally hold that an indefinite suspension deprives the court of jurisdiction to sentence later. United States v. Wilson, 46 Fed. 748; People v. Allen, 155 Ill. 61, 39 N. E. 568. II. The power to stay the execution of a sentence once imposed has been generally denied. See State v. Abbott, 87 S. C. 466, 469, 70 S. E. 6. But the power to enforce it after such a stay has been frequently upheld. State v. Abbott, supra; Neal v. State, 104 Ga. 509, 30 S. E. 858. Contra, Re Webb, 89 Wis. 354, 62 N. W. 177. The number of cases seems to indicate a strong feeling on the part of the trial judges that they have power to suspend both sentence and execution.

INDIANS

RIGHT OF UNITED STATES TO SUE TO CANCEL CONVEYANCES MADE BY INDIANS CONTRARY TO STATUTE. The United States by its Attorney General brought suit to cancel certain conveyances, made by Indians, of lands allotted to them under a statute which provided that such lands should be inalienable. Held, that the United States has capacity to sue. v. United States, 32 Sup. Ct. 424. See NOTES, p. 733.

Heckman

INJUNCTIONS - ACTS RESTRAINED - RETENTION OF PUBLIC OFFICE BY CLAIMANT ACQUIRING POSSESSION FORCIBLY. A constitutional provision consolidating two municipalities provided that the old charter of one of them should govern, as far as applicable, until the adoption of a new charter. The supreme court held the latter, first invalid, and then valid. Between the two decisions, the plaintiff was elected assessor under the old charter. One month after the second decision, and while the plaintiff continued to act, the defendant, claiming to be assessor under the new charter, forcibly deprived the plaintiff of the rooms and books of the assessor. Held, that the plaintiff is entitled to an injunction against their retention by the defendant. Arnold v. Hilts, 121 Pac. 753 (Colo.).

Quo warranto is the appropriate remedy to try title to public office. King v. Mayor of Colchester, 2 T. R. 259. So, generally, such title cannot be determined in chancery proceedings. People v. District Court, 29 Colo. 277, 68 Pac. 224. However, on analogy to the jurisdiction of equity to enjoin a continuing trespass to tangible property, a claimant of an office should be subject to be enjoined from interfering with the one in possession of the office until the title has been tried at law. This is clearly true when the plaintiff is the de jure officer. Poyntz v. Shackelford, 107 Ky. 546, 54 S. W. 855. Similarly, if he is the de facto officer. Seneca Nation of Indians v. Jimeson, 62 N. Y. Misc. 91, 114 N. Y. Supp. 401. Or if the defendant is primâ facie not entitled to the office. Hotchkiss v. Keck, 86 Neb. 322, 125 N. W. 509. So, even though the court expresses no opinion as to the plaintiff's right to the office. Rhodes v. Driver, 69 Ark. 606, 65 S. W. 106. The court can make the injunction perpetual, if the rights of the parties are clear. Elliott v. Burke, 113 Ky. 479, 68 S. W. 445. An injunction will issue, though the plaintiff had previously ousted the defendant from possession. Scott v. Sheehan, 145 Cal. 691, 79 Pac. 353. But some courts, without determining the rights to the office, mandatorily enjoin, as in the principal case, a retention of possession which was taken by force. Brady v. Sweetland, 13 Kan. 41; Blain v. Chippewa Circuit Judge, 145 Mich. 59, 108 N. W. 440. This extension is not warranted by the analogy of trespass to tangible property and appears unnecessary under the circumstances of the principal case.

INSANE PERSONS-LIABILITY IN CONTRACT-RECOVERY OF MONEY ADVANCED TO LUNATIC. A depositor became insane. The bank arranged with his son to continue the account and permit the son to draw checks as his father's agent. At the time of the lunatic's death, there was a considerable overdraft, which had been used to pay creditors for necessaries. Held, that the bank is subrogated to the interest-bearing claims of these creditors, although it cannot recover directly either the money loaned or compensation for services. In re Beavan, [1912] 1 Ch. 196. See NOTES, p. 725.

INTERSTATE COMMERCE - CONTROL BY CONGRESS RELATION OF FEDERAL EMPLOYERS' LIABILITY ACT TO INTRASTATE COMMERCE. The plaintiff's intestate, employed by the defendant to switch cars moving in interstate and intrastate commerce indiscriminately, was killed while moving an intrastate train. Held, that the plaintiff may recover under the federal Employers'

Liability Act. Behrens v. Illinois Central R. Co., 192 Fed. 581 (Dist. Ct.,
La.).

E. D.

The court feels that the fact that the usual and ordinary employment of the decedent included interstate commerce gave him a status of one engaged in interstate commerce and so kept him continuously under the protection of the federal act. Another court has said, however, that an employee might well be subject to the act while engaged in interstate but not while engaged in intrastate commerce. See Colasurdo v. Central R. of New Jersey, 180 Fed. 832, 837. The few cases under the act seem to rest its applicability upon the character of the work in which the employee was engaged when injured. Zikos v. Oregon R. & Navigation Co., 179 Fed. 893; Taylor v. Southern Ry. Co., 178 Fed. 380. The recent decision of the Supreme Court, in holding that it is not essential that the train doing the injury should be interstate, seems to look merely to the work of the injured employee. Second Employers' Liability Cases, 32 Sup. Ct. 169. The Act of 1906 was declared unconstitutional because it applied to intrastate employees. Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141. The construction maintained in the principal case would bring the scope of the present act extremely close to that of its predecessor.

INTERSTATE COMMERCE WHAT CONSTITUTES INTERSTATE COMMERCE INTRASTATE JUNCTION RAILWAY HANDLING Cars for InterSTATE SHIPMENT. -A short railway, wholly within a state, switched with its own motive power on through bills of lading interstate carload freight from one trunk line to another, and from the trunk lines to the consignee's sidings. The trunk lines paid the railway by the car. Held, that the railway is subject to the provisions of the Interstate Commerce Act. United States ex rel. Attorney General v. Union Stockyard & Transit Co., 192 Fed. 330 (Commerce Ct.).

A shipment is interstate if the shipper intends a single consignment from one state to another. Cutting v. Florida Ry. & Navigation Co., 46 Fed. 641. See 20 HARV. L. REV. 652. That one of the connecting carriers participating is wholly within one state does not relieve it from interstate obligations. The Daniel Ball, 10 Wall. (U. S.) 557; Norfolk and Western R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. 958. This is true even though local bills of lading are issued for the shipment. Houston Direct Navigation Co. v. Ins. Co. of North America, 89 Tex. 1, 32 S. W. 889; Texas & Pacific Ry. Co. v. Railroad Commission of Louisiana, 183 Fed. 1005. But cf. United States ex rel. Interstate Commerce Commission v. Chicago, etc. R. Co., 81 Fed. 783. Intrastate terminal companies handling interstate trains are within the act. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 31 Sup. Ct. 279. Upon facts substantially similar to those in the principal case the federal Safety Appliance Act has been held applicable. Union Stock Yards Co. v. United States, 169 Fed. 404; Belt Ry. Co. v. United States, 168 Fed. 542. It has been suggested that that act is to be construed more broadly, because it regulates, not business, but mechanical instrumentalities with a view to the safety of workmen. See United States v. Colorado & N. W. R. Co., 157 Fed. 321, 330. And before the amendment of 1906 the Commerce Act was thought to apply to a railroad within a state only when it handled interstate shipments under a common arrangement for continuous carriage. United States v. Geddes, 131 Fed. 452; Cincinnati, etc. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700. The amendment makes the two acts define interstate railroads in the same terms. The principal case gives them a similar scope.

PARTNERSHIP RIGHTS, DUTIES, AND LIABILITIES OF PARTNERS INTER SE RIGHT OF PARTNER TO MAINTAIN TROVER FOR UNAUTHORIZED SALE

OF PARTNERSHIP PROPERTY. A. and B. were co-partners. B., without the knowledge, consent, or authority of A., sold all the partnership property to C. Held, that A. may maintain trover against B. and C. Weiss v. Weiss, 133 N. Y. Supp. 1021 (Sup. Ct.)

One tenant in common cannot generally sue his co-tenant in trover for withholding use of the common property, since each has a right to possession. Bohlen v. Arthurs, 115 U. S. 482, 6 Sup. Ct. 114. See Brown v. Hedges, 1 Salk. 290. For a destruction of the chattel trover lies. Herrin v. Eaton, 13 Me. 193. In this country, the action is usually allowed even in the case of a sale by a co-tenant. White v. Osborne, 21 Wend. (N. Y.) 72; Goell v. Morse, 126 Mass. 480. But see Mayhew v. Herrick, 7 C. B. 229, 246. Whether the purchaser from the co-tenant is liable in trover is a question which has produced a conflict, but on principle it seems that each has been guilty of conversion in assuming to own the chattel and to deal with it as his own. Weld v. Oliver, 38 Mass. 559. Contra, Osborne v. Schenck, 83 N. Y. 201. Co-tenants, however, have no authority to sell the common property, whereas each partner may sell all the firm assets. See Wilson v. Reed, 3 Johns. (N. Y.) 175, 179; Mabbett v. White, 12 N. Y. 442. On this ground courts have held that one partner cannot sue another in trover for a sale of firm property. Montjoys v. Holden, Litt. Sel. Cas. (Ky.) 447; Mason v. Tipton, 4 Cal. 276. This reasoning seems insufficient, since the authority, as between the partners, is to sell only for partnership purposes. But the wrong is to the partnership. Homer v. Wood, II Cush. (Mass.) 62. Trover may prove inadequate, as there is no assurance that the fraudulent partner is not owed more by the firm than the damages from the wrong. See Sweet v. Morrison, 103 N. Y. 235, 241, 8 N. E. 396, 398. These rights can be adjusted satisfactorily only by an accounting in equity. See PARSONS, PARTNERSHIP, 4 ed., 304.

POWERS INTENTION TO EXECUTE SPECIAL POWER. - The testatrix had a testamentary power of appointment among her children. By her will she gave, devised, bequeathed, and appointed her residuary real and personal estate (including all property over which she had a power of appointment) to trustees to pay debts and stand possessed of the residue in trust for her husband for life and then for her children equally. Held, that the power is not exercised by the will. Re Sanderson, 106 L. T. 26 (Eng., Ch. D., Feb. 9, 1912).

In order to exercise a testamentary power a will must, at common law, contain a sufficient reference to the power to show an intention to exercise it. The use of the verb "appoint," especially when coupled with the express inclusion, in a general gift, of "all property over which I have a power of appointment," would undoubtedly be a sufficient reference in the case of a general power. See In re Richardson's Trusts, L. R. 17 Ir. 436, 443. Such words also show an intention to execute a special power. In re Mayhew, [1901] 1 Ch. 677. But other parts of the will may tend to negative this intention. Thus putting the appointed property in a common fund with other property and providing for its conversion is not consistent with an intention to execute a special power. In re Weston's Settlement, [1906] 2 Ch. 620. So also if the gift is to others as well as to the objects of the power, or provides for payment of debts. Ames v. Cadogan, 12 Ch. D. 868. The English judges have differed as to whether these considerations outweigh the effect of the word "appoint." In re Swinburne, 27 Ch. D. 696; In re Cotten, 40 Ch. D. 41. The present case is one of the strictest.

RAILROADS - LIABILITY OF LESSOR RAILROAD FOR UNREASONABLE DISCRIMINATION BY LESSEE. In an action of trespass for unreasonable discrimination in not granting the plaintiff siding facilities, the defendant corporation pleaded that prior to the alleged discrimination it had turned the entire management and control of its railroad over to another corporation