Chapman v. Chapman, 2 Conn. 347. These dicta are disapproved by as many others. Flora v. Anderson, 75 Fed. Rep. 217, 222. One decision, though not mentioning the point, and incorrect for another reason, involves an affirmance of the English rule. Blackburn v. Crawfords, 3 Wall. 175. That the principal case is, unfortunately, contra illustrates the unsatisfactory technical nature of the law of evidence for present day purposes, and the desirability of a scientific restatement.

EVIDENCE- Pedigree — StATUTES OF INHERITANCE OF BASTARDS. — On an issue of descent under a statute which makes a bastard heir of his father, the plaintiff offered hearsay declarations that the late owner of the property claimed was his father. Held, that the declarations were within the pedigree exception to the rule against hearsay. Alston v. Alston, 86 N. W. Rep. 55 (Ia.).

The pedigree exception as it has always existed in England, serves to admit declarations of family matters only when bearing on some question of legitimate relationship. Crispin v. Doglioni, 3 Sw. & Tr. 44. American courts, less strict, incline to admit declarations on any matter of family history which is relevant to any question in the case. In re Hurlburt's Estate, 68 Vt. 366. Contra, Town of Union v. Town of Plainfield, 39 Conn. 563. This practice, traceable to a misleading passage in Greenleaf, is defended to-day as within the spirit of the exception; since in respect to the trustworthiness of the evidence, there is no rational distinction between pedigree cases in the narrow sense and others. I GREENL. Ev., 16th ed., § 114 g. An answer, aside from authority, is that this exception to the rule excluding hearsay is technical, not rational, and without any "spirit" to extend. The principal case might be supported on the ground that the statute creates a pedigree relationship. Northrop v. Hale, 76 Me. 306. But in interpreting these statutes the better rule is that they do no more than they purport; they merely give bastards lineal inheritance. Stevenson's Heirs v. Sullivant, 5 Wheat. 207, 260. In this view they no more affect relationship than would like statutes providing for inheritance by servants. A contrary decision in the principal case would therefore have been more satisfactory, and would have rested on good authority. Flora v. Anderson, 75 Fed. Rep. 217.

FIXTURES CONDITIONAL SALE OF FURNACE REAL ESTATE MORTGAGE – PURCHASER AT FORECLOSURE SALE. A furnace, sold and installed under a contract providing for its return if not up to requirements, was in fact below the standard. The defendant bought the premises at a foreclosure sale under a real estate mortgage, given before the furnace was installed. Held, that the furnace passed with the realty to the purchaser, though it had retained its chattel character as between vendor and mortgagor. Fuller-Warren Co. v. Harter, 85 N. W. Rep. 698 (Wis.).

The court rests its decision on the Massachusetts doctrine that all chattels affixed to realty go to a prior real estate mortgagee, contract or chattel mortgage between vendor and mortgagor notwithstanding. Clary v. Owen, 15 Gray 522. According to the more equitable theory of Vermont and New Jersey, the prior real estate mortgagee is not preferred to the holder of an incumbrance on a chattel affixed to the realty subsequently to the mortgage, unless the removal of the fixture would decrease the original value of the mortgage security. Davenport v. Shants, 43 Vt. 546; Campbell v. Roddy, 44 N. J. Eq. 244. It does not appear that the defendant at the time of purchase knew of the contract concerning the furnace. If he did not, the result may be supported on the ground that the position of the defendant is stronger than that of the mortgagee. The latter advanced no money relying on the fixture as security; the former, buying the premises as they stood, would be in effect a purchaser for value without notice, and as such should be protected. This distinction seems never to have been drawn by the courts. See 10 HARV. LAW REV. 190.

INTERNATIONAL LAW- EFFECT OF CESSION ON EXISTING LAWS-IMPORT DUTIES. Under orders issued by the President, duties were collected on goods imported by the plaintiff into Porto Rico from the United States, after the cession of that island, and before the passage of the act of Congress establishing a Porto Rican tariff. Held, that the goods were entitled to entry free of all duties. Dooley v. United States, 21 Sup. Ct. Rep 762. See NOTES, p. 220.

INTERNATIONAL LAW-ENEMY CHARACTER DOMICILE OF CORPORATION. — A mining company incorporated in Natal was granted letters of incorporation in the Transvaal, where its mine was situated, and was registered in Pretoria. After the outbreak of war the company shut down the mine, intending not to work it durin

the war, but kept its property and retained its resident manager. Held, that the company had only a commercial domicile in the Transvaal, and that this did not invest it with enemy character. Nigel Gold Mining Co., Lim. v. Hoade, 17 T. L. R. 711.

The status of the corporation and not that of its members was in question, and in the case of corporations, as in that of individuals, enemy character is determined by domicile. Society, etc., v. Wheeler, 2 Gall. 105, 131; The Danckebaar Africaan, 1 Rob. 107. Even if the plaintiff company be regarded as merely commercially domiciled, it takes enemy character on the outbreak of war, for when a foreign corporation establishes a permanent agency in a state, it is, in time of war, as to the business transacted there, in the same position as a domestic corporation. Martine v. International Life Ins. Soc., 53 N. Y. 339. Yet the law covering such a company as the plaintiff in the principal case is stronger still. An incorporated company which takes letters of incorporation in a second state, has a separate legal domicile in that state. Martin v. Baltimore & Ohio R. R. Co., 151 U. S. 673. The plaintiff company must therefore be regarded as having enemy character. The court professes to bring the case within the rule of The Venus, 8 Cranch 253. In that case the owner had abandoned his foreign domicile and business bona fide; but in the principal case there was nothing equivalent to such abandonment by the corporation. The decision can be explained only by the supposed humanitarian tendency of the present day in applying the rules of war.

INTERNATIONAL LAW-INSURANCE BY DOMESTIC COMPANY ON ENEMY PROPERTY. PUBLIC POLICY.-Gold, the property of a Transvaal mining company, was insured with British underwriters against capture, amongst other risks, during transit from the mines in the Transvaal to the United Kingdom. The gold was seized by the government of the Transvaal, at a time when the Transvaal troops were in the field, and war was imminent, though before the declaration of war. Action was brought on the policy. Held, that the insurance of the plaintiff's property against such a seizure was not against public policy and the action is maintainable. Driefontein, etc., Mines, Lim. v. Janson, [1901] 2 K. B. 419.

Acts done in contemplation of war are, if war ensues, regarded as if done in time of war. The Jan Frederick, 5 Rob. 128; The Boedes Lust, 5 Rob. 233. The question, then, is whether it is against public policy for an insurance company to insure an alien enemy against seizure of his property by his own government. No decided case covers this. It has been held that insurance of an enemy's subject against capture of his goods by ships of the insurer's government is void. Furtado v. Rogers, 3 B. & P. 191; Gamba v. Le Mesurier, 4 East 407. The ground of the decisions was that a state could not put the same pressure on its enemy if the enemy knew it would be recouped at the end of the war by subjects of that state. This principle applies with equal if not greater force to insurance on goods seized by the government of the assured. Payment of such insurance would be relieving the enemy's subject from the pressure put upon him by his own government to carry on the war, and would in effect be paying the enemy's expenses. On principle and authority the case is wrong, though it has the practical advantage of affording relief to commerce.

INTERSTATE COMMERCE UNREASONABLE DISCRIMINATIONS — JURISDICTION OF STATE COURT. - Held, that unreasonable discrimination by an interstate telegraph company is unlawful at common law and that the state court has jurisdiction. Western Union Tel. Co. v. Call Publishing Co., 21 Sup. Ct. Rep. 561. See NOTES, p. 224.

PROPERTY FIXTURES ELECTRIC LIGHT FITTINGS. — Held, that where a hotel containing electric light fittings is sold under foreclosure, the fittings pass as a part of the realty. Canning v. Owen, 48 Atl. Rep. 1033 (R. I.).

There is considerable confusion as to what chattels annexed to the realty will pass as fixtures. The view most generally held is that, as between vendor and vendee, or mortgagor and mortgagee, whatever is annexed to the freehold by the owner with the intention that it be used and enjoyed permanently in connection therewith, passes with a conveyance of the realty. Holland v. Hodgson, L. R. 7 C. P. 328. In most American jurisdictions and in Scotland an exception has been made of gas fittings, and similarly of electric light fittings, which are considered personalty. Vaughen v. Haldeman, 33 Pa. St. 522; Nisbet v. Mitchell-Innes, 7 R. 575. In England and in Kentucky the decisions are in accord with the principal case. Sewell v. Angerstein, 18 L. T. N. S. 300; Johnson's Exec. v. Wiseman's Exec., 4 Met. (Ky.) 357. The prevailing view seems to rest on an analogy drawn in an early case between gas fittings and lamp-brackets, which had always been considered personalty. Montague v. Dent, 10

Rich. (S. C.) 135. On principle there seems no good reason for thus making gas and electric light fittings an exception to the general rule; but the law in America is so well settled that the departure in the principal case is unfortunate.

ESTOPPEL.

PROPERTY QUASI-EASEMENTS One H., owning a lot with a building thereon, conveyed it by metes and bounds to X. The building was found to project six inches upon the adjoining lot. H. afterwards purchased a strip from this lot including the portion upon which the house projected. Held, that X is entitled to an easement in that portion for the support of the building. Swedish-American, etc., Bank v. Connecticut, etc., Ins. Co., 86 N. W. Rep. 420 (Minn.).

Had H. been the owner of both lots at the time of the conveyance to X, the latter would have gotten the easement claimed under the doctrine of quasi-easements, the servitude being continuous, apparent, and necessary for the convenient use of the property granted. Palmer v. Fletcher, 1 Lev. 122; Simmons v. Cloonan, 81 N. Y. 557. The decision here seems to result from a union of this principle with the doctrine of estoppel as applied to subsequently acquired title. See Somes v. Skinner, 3 Pick. 52. Only two cases have been found raising the same question. One is in accord with the principal case. Jarnigan v. Mairs, 1 Humph. (Tenn.) 473. The other, a very recent decision, takes the opposite view. Farley v. Howard, 60 N. Y. App. Div. 193. The doctrine of the principal case seems sound and the result eminently desirable. PROPERTY-RIPARIAN OWNERS - RIGHT TO RESTORE NATURAL LEVEL. · defendant acquired a prescriptive right to maintain a milldam and pond back the water. The plaintiffs, upper riparian owners, had improved their land in reliance on the permanency of the pond. Held, that an injunction will lie restraining the defendant from removing the dam to the injury of upper owners. Kray v. Muggli, 86 N. W. Rep. 882 (Minn.).

The

There is little authority exactly in point and the case most nearly parallel is contra. Yale v. Brace, 99 Mass. 448. But in analogous cases, such as restoration of a stream previously diverted into an artificial channel, the weight of authority supports the principal case. Delany v. Boston, 2 Har. (Del.) 489. The decisions are based on the ground either of a reciprocal easement in the servient tenement, or of an equitable estoppel against the dominant. The former reason is unsatisfactory because the servient owner does nothing adverse by which an easement might be acquired; the latter because the representation relied on is not one of existing fact, but merely of intended future conduct. See Mason v. Shrewsbury Ry. Co., L. R. 6 Q. B. 578, 587. Perhaps the correct basis for the satisfactory result in the majority of the cases is that it is not equitable to allow the dominant owner alone the right to insist on the maintenance of the changed conditions, and the law therefore substitutes them for the natural conditions and gives abutters the usual riparian rights. Cf. Woodbury v. Short, 17 Vt. 387.

PROPERTY VENDOR AND PURCHASER PURCHASER'S LIEN. -The plaintiff contracted to purchase a plot of land from X, paying a deposit and receiving an option in a certain event to cancel the contract. This option he afterwards exercised. Held, that the plaintiff had a lien on the land for his deposit, enforceable against the defendant, who had acquired X's title with notice of the contract. Whitbread & Co., Lim. v. Watt, [1901] I Ch. 911.

Equity purposes to treat all parties with equal justice, giving to each when possible the same remedy. For this reason the vendor and vendee of land have the same right of specific performance, and similarly equity has allowed the purchaser, as well as the vendor, a lien on the land contracted to be sold. Wythes v. Lee, 3 Drewry 396; Bullitt v. Eastern Ky. Land Co., 99 Ky. 324. See 9 HARV. LAW REV. 486. There is a dictum that the purchaser's lien exists only when the contract is off by the vendor's default. Roger v. Harrison, [1893] 1 Q. B. 161, 173. This seems unsound. Just as the vendor's lien always accompanies his contractual claim for the purchase money, the purchaser's lien should be allowed whenever he has a quasi-contractual claim to have his deposit refunded. Apparently the weight of authority holds that the deposit is forfeited if the vendee later makes default. Howe v. Smith, 27 Ch. D. 89. When, however, the contract fails to be performed for any other reason, the purchaser has a claim for the deposit, and a lien should be allowed. In reaching that conclusion the principal case follows Rose v. Watson, 10 H. L. Cas. 672.

SALES CONDITIONAL SALE-RESALE BY VENDOR TO HIMSELF. The plain. tiff contracted to sell to the defendant certain personalty, the title not to pass till

the price was paid. The defendant having refused to perform, the plaintiff, after proper proceedings, had the property sold at auction, and bid it in himself. He then sued to recover the difference between the contract price and the sale price. Held, that the plaintiff is entitled to recover. Ackerman v. Rubens, 167 N. Y. 405.

The correctness of the measure of damages adopted obviously depends upon the validity of the resale. Undoubtedly if the plaintiff did not choose to keep the property himself, he had a right to sell it and recover from the defendant the difference between the price obtained and the contract price. Dunstan v. McAndrew, 44 N. Y. 72. But it seems that the plaintiff had no right to buy at the sale, which was therefore not valid. The position of the plaintiff in reselling the property is similar to that of a pledgee or mortgagee with power of sale; in each of the three cases the creditor has a right to sell for his own protection, in case of default by the debtor. But it is well settled that a pledgee or mortgagee selling under a power of sale may not bid in the property. Middlesex Bank v. Minot, 45 Mass. 325; Harper v. Ely, 56 Ill. 179. The reason is that it is not safe to allow such purchases, on account of the chances of fraud, and therefore, though there may have been no fraud in the particular case, the sale should be held invalid. The same reason applies in the principal case. The basis on which the damages were assessed, therefore, is not established.

SALES NON-NEGOTIABLE BILLS OF LADING RIGHTS OF ASSIGNEE.— The seller delivered goods to a railroad company consigned to the buyer, and took in the name of the buyer a bill of lading marked "not negotiable." The bill of lading, with a draft on the buyer, was transferred to a bank, to be delivered to the buyer on acceptance of the draft. Held, that the delivery to the carrier passed the absolute title to the buyer, and the bank had no rights in the goods. Bank of Litchfield v. Elliott, 86 N. W. Rep. 454 (Minn.).

Ordinarily whenever a bill of lading is retained by the consignor, he has a right over the goods in the nature of a lien or mortgage, and the consignee, until he receives the bill of lading, has no right to obtain the goods or dispose of them, being liable to the consignor or the assignee of the bill of lading for so doing. Cayuga, etc., Bank v. Daniels, 47 N. Y. 631; Freeman v. Kraemer, 63 Minn. 242; Alderman v. Eastern R. R. Co., 115 Mass. 233. When, however, goods are shipped directly to the buyer, and a non-negotiable bill of lading taken out in his name, the common practice of railroads seems to be to deliver the goods to the consignee without requiring the presentation of the bill of lading, and relying upon this custom it has been decided that the assignee of such a bill of lading had no rights against the consignee. Forbes v. Boston & Lowell R. R. Co., 133 Mass. 154, 157. If this is in fact a general custom, the sooner its legal effect in cases like the principal one is clearly made known to the mercantile community the better, and the decision in the principal case is therefore to be welcomed.

STATUTE OF FRAUDS ANTE-NUPTIAL Agreement - MEMORANDUM. - By an oral ante-nuptial agreement a husband agreed to convey to trustees, when it should come into possession, a reversion belonging to his wife, to be held on certain trusts which, under a voluntary settlement, would not be valid as against creditors. In a postnuptial writing the husband recited and covenanted to perform the oral agreement. He afterwards became bankrupt. Held, that, one agreement being oral and the other gratuitous, the trustee in bankruptcy will not be ordered to perform. In re Holland, [1901] 2 Ch. 145.

According to the prevailing English view and considerable American authority, a settlement after marriage conveying property in execution of an oral ante-nuptial agreement is void as against creditors. Warden v. Jones, 2 De G. & J. 76. In sev eral jurisdictions, however, such settlements have been allowed. Hussey v. Castle, 41 Cal. 239. And in analogous cases the performance of a moral duty of this kind is usually held good against creditors. Brown v. Lunt, 37 Me. 423. Under the first mentioned rule, even when the settlement recites the former agreement, it is generally held invalid. Winn v. Albert, 5 Md. 66; Trowell v. Shenton, L. R. 8 Ch. D. 318, semble. The principal decision follows naturally from these cases. Yet in all such cases the recital seems to supply the necessary memorandum to validate the original contract, and an English case which, though it did not involve creditors, relied on the authority of cases which did, held a written acknowledgment after the marriage a sufficient memorandum. Barkworth v. Young, 4 Drewry 1. The principal decision seems especially unfortunate, since the memorandum was made directly after marriage and twenty-five years before bankruptcy, so that there could have been no fraud on creditors, the danger of which seems to be the ground of the decisions in the settlement

cases.

No reason appears, therefore, for refusing to enforce the agreement, even if the court was unwilling to accept the rather advanced view adopted in Missouri, that marriage is sufficient part performance to make the contract binding. Nowack v. Ber ger, 133 Mo. 24. See 10 HARV. LAW REV. 60.

TORTS- CIVIL LIABILITY FOR DAMAGE CAUSED BY CRIMINAL ACTS. The defendant, while beating his horse with a pointed stick, slipped and thereby accidentally struck the plaintiff. Held, that the jury should have been instructed that if the defendant was breaking a statute forbidding cruelty to animals, he was liable for damage directly resulting to the plaintiff, whether or not it ought reasonably to have been foreseen. Osborne v. Van Dyke, 85 N. W. Rep. 784 (Ia.). See NOTES, p. 225.

TORTS LIABILITY FOR INCREASING Burden of Contract — SUBROGATION. The defendant negligently injured a bridge, which the plaintiff was under bonds to the county to keep in repair. The plaintiff repaired the bridge, and sued the defendant. Held, that the injury was done to the plaintiff and that he was entitled to recover the cost of repairing the bridge. Cue v. Breland, 29 So. Rep. 850 (Miss.).

The decisions exactly in point are uniformly opposed to the position of the court. Rockingham, etc., Ins. Co. v. Bosher, 39 Me. 253; but cf. McNary v. Chamberlain, 34 Conn. 384. It is obvious that no property interest is acquired in a chattel by undertaking to indemnify the owner in case of its loss, and to place tort-feasors under a liability to all who may be damaged by reason of contractual relations with the party whose person or property is directly injured, would work a dangerous extension of legal responsibility by opening a wide and uncertain field of litigation. Connecticut, etc., Ins. Co. v. New York, etc., R. R. Co., 25 Conn. 265. The interests of the plaintiff, like those of an insurer, are amply protected by his privilege of subrogation. He has an enforcible right to bring an action in the name of the owner of the property (or under code provisions, in his own name) and reimburse himself out of the damages for the loss he has sustained. Hart v. Western R. R. Corporation, 54 Mass. 99. The court in the principal case, while doing substantial justice, disregards principles which in analogous cases might entirely change the result. Cf. Midland Ins. Co. v. Smith, 6 Q. B. Div. 561.

TORTS LIBEL PUBLICATION BY DICTATION TO A STENographer. — The defendant dictated a libellous letter to his stenographer, who subsequently wrote it with a typewriter and transmitted it by the defendant's direction to the person libelled. Held, that there was a publication of the libel. Gambrill v. Schooley, 48 Atl. Rep. 730 (Md.). See NOTES, p. 230.

TRUSTS PURCHASER FOR VALUE WITHOUT NOTICE. — Power of Attorney. - A trustee gave the plaintiff as security equitable mortgages on certain leaseholds which, unknown to the plaintiff, he held in trust, and in addition gave a power of attorney to three of the plaintiff's clerks to transfer the titles to the leaseholds as the plaintiff should direct. On hearing of the trust, the plaintiff had the titles conveyed to itself. Held, that the plaintiff thereby acquired the titles, but held them subject to an equity in favor of the trust estate. London and County Banking Co. v. Nixon, [1901] 2 Ch. 231. See NOTES, p. 226.

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DEVISE TO CORPORATION.

WILLS CHARITABLE TRUSTS - A will directed that the proceeds of the residue be "held in trust" by an incorporated foreign missionary society, to educate Bible readers and to erect a building for foreign missionary purposes. Held, that the money comes to the society, not as a trust, but as a "gift with conditions annexed to its expenditure." Sherman v. Mitchell, 48 Atl. Rep. 737 (Md.).

A residue was bequeathed to a camp-meeting association incorporated as auxiliary to the Methodist Church, to be invested, and the income to be applied for educational purposes, with discretion in the association as to the beneficiary. Held, that the association takes the residue, not as a trust, but as an absolute gift. Matter of Griffin, 167 N. Y. 71.

The legacies in both these cases being for corporate purposes, expressions indicating a trust are held surplusage. Whether or not a devise for general corporate purposes creates a trust is a speculative question; for in either case the state will prevent misappropriation as ultra vires. Many authorities find a trust. The Incorporated Soci ety v. Richards, 1 Dr. & War. 258, 293; De Camp v. Dobbins, 29 N. J. Eq. 36. If