report. Gerner v. Mosher, 58 Neb. 135. And, on the other hand, negligence has been held essential to sustain a recovery. See Mason v. Moore, 73 Oh. St. 275 As national banks are federal institutions, it seems desirable that the liability of their directors should be uniform. The present construction, by making that liability depend upon federal statutes, insures this uniformity in the future regardless of the local laws of the individual states.

DEEDS BOUNDARIES - LAND BOUNDED ON PRIVATE WAY. - Land conveyed was described as bounded "on a passageway." The grantor owned the way mentioned, but no land beyond. Held, that the deed conveys the fee to the centre of the way. Gould v. Wagner, 41 Banker and Tradesman 689 (Mass., Sup. Ct., Oct. 15, 1907).

This case follows the general rule that a deed naming as a boundary a public or private way owned by the grantor conveys title to the centre of the way. Gould v. Eastern R. R. Co., 142 Mass. 85. Only an express intention will limit the grant to the side of the way. Salter v. Jonas, 39 N. J. L. 469; contra, Buck v. Squiers, 22 Vt. 484. In the present case, however, since the grantor owned no land beyond the way, the court might well have sustained a presumption that he did not intend to retain any portion of the way. This presumption is reasonable, for it is unlikely that the grantor would reserve a strip of land of use only to the grantee. Haberman v. Baker, 128 N. Y. 253. Furthermore, on grounds of public policy this construction should be applied to such conveyances to prevent the existence of innumerable narrow strips of land, title to which is always difficult to ascertain because the owner is never in possession. In re Robbins, 34 Minn. 99. But where the grantor would preserve riparian rights by retaining one-half his highway, the presumption of intent to convey the whole way should be rebutted. Contra, Johnson v. Grenell, 188 N. Y. 407.

DIVORCE - ALIMONY — RIGHT TO MODIFY DECREE ADOPTING SEPARAtion AgreemeNT. — The plaintiff and the defendant, pending a libel for divorce, made an agreement under which the plaintiff was to receive $6000 and relinquish all her claims for alimony. This agreement was adopted by the court in the decree. Subsequently the plaintiff sought a modification of the decree giving her more alimony. N. H. Rev. Stat. 1843, c. 148, § 16, allows the courts on proper application to make such new orders as may be necessary respecting alimony. Held, that the court may modify the decree. Wallace v. Wallace, 67 Atl. 580 (N. H.).

The objections to recognizing the agreement, so as to preclude the plaintiff from applying for additional alimony, are as follows: first, that such contracts are against public policy because they tend to facilitate collusive divorce and because the amount of alimony may be inequitable; and second, that a married woman cannot contract at common law. But the court's decree in accordance with the agreement removes the first objection, as it is the duty of the court to see that the divorce is free from collusion, and that the provisions for alimony are fair. Fulier v. Julier, 62 Oh. St. 90. So in states where a married woman may contract, such an agreement and decree will prevent the husband from obtaining a reduction of the alimony, and the wife from obtaining an increase. Martin v. Martin, 65 Ia. 255; Henderson v. Henderson, 37 Ore. 141. Even in common law states separation agreements not against public policy are enforced in the wife's favor. Calame v. Calame, 25 N. J. Eq. 548; Randal v. Randal, 37 Mich. 563. No valid reason appears why a similar disregard of a married woman's incapacity to contract should not be made against her interest. Consequently, it seems that the court should not consider an application forbidden by the separation agreement.

EMINENT DOMAIN WHEN IS PROPERTY TAKEN — Restrictive AgreeMENTS ON THE USE OF LAND. - Land subject to restrictive agreements in favor of the plaintiff was taken by eminent domain. Held, that the plaintiff has no right to compensation. Wharton v. United States, 153 Fed. 876 (Č. C. A., First Circ.). See NOTES, p. 139.

OF

INSANE PERSONS GUARDIANSHIP EFFECT AND PROTECTION DEATH OF LUNATIC ON LIABILITY OF RECEIVER'S SURETY. C became surety for B as receiver for A, a lunatic. After A's death, B collected rents and absconded. Held, that C is not liable for B's defalcation. In re Walker, [1907] 2 Ch. 120.

The status of lunacy gives equity her jurisdiction to appoint a receiver of the lunatic's property. See In re Fitzgerald, 2 Sch. & Lef. 432. Since the death of the lunatic determines that status, the basis of equitable interference disappears, and consequently the receivership terminates. Hence a quondam receiver cannot charge, in his final accounting, indebtednesses incurred in administration of the estate after the lunatic's death. Jones v. Noyes, 7 Wkly. Rep. 21. And even when a statute required a formal accounting and final discharge by the court, the receivership was held to terminate by the death of the lunatic before the discharge. In re Sheuer's Estate, 31 Mont. 606. Upon the same principle, discharges given creditors by a man acting as administrator durante absentia, after the death of his principal, even though such death was unknown to all the parties, were held invalid. Re Ouvry, cited in 51 Sol. J. 479. In the present case C had agreed to answer for any default of B as receiver. But the receivership had terminated by the death of the lunatic before the collections were made; there was no default by B as receiver, and consequently any claim against the surety is without foundation.

INTERSTATE Commerce-Control by CONGRESS-INTERSTATE Bridges. Congress authorized the city of St. Louis to construct a railroad bridge across the Mississippi River, and to exercise the right of eminent domain for the acquisition of approaches thereto in Illinois. Held, that Congress has power to authorize the building of such interstate bridge, and to clothe St. Louis with the right to condemn property in another state. Haeussler v. City of St. Louis, 103 S. W. 1034 (Mo., Sup. Ct.).

It is well settled that a bridge may be an instrument of interstate commerce. Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204. And in spite of the doubts expressed in many early cases, it has now been established by a long line of decisions that Congress, under its power to regulate interstate commerce, can build or authorize the construction of such bridges without the consent of the states, and to this end exercise its right of eminent domain. Penn., etc., Ry. Co. v. Baltimore, etc., Ry. Co., 37 Fed. 129; Cherokee Nation v. South Kansas Ry. Co., 135 U. S. 641. If the consent of the states were necessary, Congress would not have supreme power over an instrument of interstate commerce now as important as a navigable river. Consequently, it has been held constitutional for Congress to charter a corporation to build an interstate bridge, and to give it rights of eminent domain in both states without their consent. Luxton v. North River Bridge Co., 153 U. S. 525. The present case, therefore, seems right in holding that, "if Congress can create a corporation with such rights, it can grant such rights to one already in existence."

INTERSTATE COMMERCE - ELKINS ACT — RECEIVING ILLEGAL CONCESSIONS FROM PUBLISHED RATES A CONTINUING CRIME. The defendant shipper obtained concessions and delivered goods to the carrier in Kansas. The prosecution was instituted in a district of Missouri through which the goods were transported. Held, that the court has jurisdiction, since receiving such concessions is a continuing act. Armour Packing Co. v. United States, 153 Fed. 1 (C. C. A., Eighth Circ.). See NOTES, p. 135.

LIENS STATUTORY LIENS — INNKEEPER'S LIEN ON PROPERTY NOT BELONGING TO GUEST.-N. Y. Laws 1897, c. 418, § 71, as amended by N. Y. Laws 1899, c. 380, provides that the keepers of inns and boardinghouses shall have a lien upon property brought upon their premises by a guest; but that no such lien shall exist if they had notice that the property did not belong to the guest. A guest brought to a hotel a piano, which was the property of the plaintiff, though the hotel-keeper had no notice of the fact. Held, that the hotel-keeper has a lien on the piano, available against the owner, for the debt incurred by the guest. Waters & Co. v. Gerard, 189 N. Y. 302.

A former case in a lower New York court, in which a boarding-house keeper claimed a lien on property not owned by a guest, construed the words "property brought by a guest" to include only property belonging to the guest; this rather forced construction being adopted on the ground that to give a boarding-house keeper a larger lien would be unconstitutional, as taking the owner's property without due process of law. Barnett v. Walker, 39 N. Y. Misc. 323. The present case overrules this construction, holding that the words do confer a lien on the goods of a third person. The court is clearly right in holding that in its application to innkeepers the statute is constitutional, for at common law an innkeeper had a lien on property brought by a guest who had no title to it. Yorke v. Grenaugh, 2 Ld. Raym. 866; Jones v. Morrill, 42 Barb. (N. Y.) 623. Whether or not the statute, as here construed, is constitutional as far as it applies to boarding-house keepers is left in doubt. It seems, however, well within the legislative power to extend the law in the case of inns to the analogous case of boarding-house keepers. See 16 HARV. L. REV. 528.

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LIMITATION OF ACTIONS-NATURE And ConstruCTION OF STatute DISABILITY CAUSED BY INJURY FOR WHICH ACTION IS BROUGHT. — The plaintiff sustained injuries to his head from which insanity almost immediately resulted. The action was brought after the statute of limitations had run. Held, that the provision of the statute in regard to disabilities existing at the time the cause of action accrues is applicable, and that the action is not barred. Nebola v. Minnesota Iron Co., 112 Ñ. W. 880 (Minn.).

It has been held that insanity resulting a few hours after an injury is not a disability existing at the time the right of action accrues within the meaning of a statute of limitations. Roelefsen v. City of Pella, 121 Ia. 153. The decision in the principal case, however, is supported by an earlier Texas decision. Sasser v. Davis, 27 Tex. 655. The question involved seems not to have been considered elsewhere. The periods fixed by statutory limitations usually date from the accrual of the action. WOOD, LIMITATIONS, § 54. As a general rule, however, in calculating these periods it is held that the day on which the action accrued is excluded, and that the running of the statute begins on the following day. Seward v. Hayden, 150 Mass. 158. Hence a disability arising shortly after the action accrues, but on the same day, exists when the statute begins to run, and by similar construction would fill the statutory requirement of "existing at the time the action accrued." This construction seems more just than to hold that insanity caused by an injury and resulting immediately after it is not a disability provided for by the statutes. See Street Ry. Co. v. Mabie, 66 Ill. App. 235, 239.

The defendant

LOTTERIES STATUTES - THE ELEMENT OF CHANCE. offered certain rewards or prizes to the persons who should submit the nearest correct estimates of the popular presidential vote of 1904 and who should at the same time subscribe to a certain periodical. The plaintiff was the assignee of the claims of the two most successful contestants. Held, that the plaintiff cannot recover, as the enterprise is a lottery. Waite v. Press Publishing Ass'n, 155 Fed. 58 (C. C. A., Sixth Circ.).

Legislation regulating such transactions is very comprehensive, but the courts generally recognize that to constitute a lottery scheme three elements must concur: a consideration, a prize, and the allotment of the prize by chance. See Equitable Loan, etc., Co. v. Waring, 117 Ga. 599, 609. A recent English case shows the tendency to a very liberal construction in finding the first named essential, consideration. Willis v. Young, [1907] I K. B. 448. In their interpretation of the third element the English and American decisions are in some conflict on such facts as are presented in the present case. The former hold that the factor of human calculation renders negligible the element of chance. Hall v. Cox, [1899] I Q. B. 198. The weight of American authority, with better reason, it would seem, holds that chance is the dominant factor in arriving at the correct conclusion. Stevens v. Cincinnati Times-Star Co., 72 Oh. St. 112; People v. Lavin, 179 N. Y. 164; contra, U. S. v. Rosenblum, 121 Fed. 180. That a competitor's ignorance of any of the causes which will

determine the exact result desired must leave the correctness of his estimate dependent, in the last analysis, on chance, seems too clear for argument.

MALICIOUS PROSECUTION PROBABLE CAUSE - BONA FIDE MISTAKE OF LAW. A tenant tore down the "To Rent" sign which her landlord's agent had hung in her window. The agent, an attorney, unsuccessfully prosecuted her under a statute which made criminal the severance of fruits, crops, etc., "or anything," from the freehold. Held, that the agent had probable cause for the prosecution. Whipple v. Gorsuch, 101 S. W. 735 (Ark.).

The plaintiff, through the false representation that he was a Roman Catholic priest collecting funds for the building of a Roman Catholic church, obtained money wherewith he built an Old Catholic church. The defendant unsuccessfully prosecuted him for obtaining money by false pretenses. Held, that the defendant had no probable cause for the prosecution. Urban v. Tyszka, 64 Leg. Int. 411 (Pa., Washington Co. C. P., April 23, 1907).

The question of probable cause depends largely upon the particular facts of each action for malicious prosecution; it is dangerous to generalize as to what a man of reasonable prudence and caution would or would not do. Some dicta suggest that he would never make a mistake of law. See Hazzard v. Flury, 120 N. Y. 223; Hall v. Hawkins, 24 Tenn. 357. In most of such cases the defendant had prosecuted the plaintiff for larceny of goods taken under a claim of right, or the defendant's belief in the plaintiff's guilt arose from some similar gross mistake of law. Where, however, the defendant misapprehended a doubtful point of law, he may still be considered to have acted with reasonable prudence and hence with probable cause. Phillips v. Naylor, 4 H. & N. 565. This view seems correct logically, and as a matter of public policy. Both the present decisions appear doubtful in the light of the facts, but the Arkansas holding illustrates the more commendable tendency. It cannot be said that he who institutes a prosecution is always bound at his peril, if a layman, to consult an attorney, if a lawyer, to know the law.

MUNICIPAL CORPORATIONS MUNICIPAL DEBTS AND CONTRACTS MORTGAGE OF STREET RAILWAYS PAYABLE FROM THEIR INCOME CONSTITUTING DEBT. - The Illinois constitution limits city indebtedness. In purchasing street railways Chicago issued $75,000,000 of certificates payable solely from the income of the railways, and secured by a mortgage of the railway property, the purchaser at foreclosure being given the right to operate the railways for twenty years. Held, that this issue of certificates constitutes a debt within the constitutional provision. Lobdell v. Chicago, 227 Ill. 218.

The policy underlying limitations on indebtedness is that future taxpayers shall not be unduly burdened. See 16 HARV. L. REV. 442. A loan secured by a purchase-money mortgage does not constitute a debt to which the limitation applies. Winston v. Spokane, 12 Wash. 524. But it has been held that hypothecation of stock creates a debt, although the pledgee has no recourse against the city. Mayor v. Gill, 31 Md. 375. That case differs from the present, for it appears that the city there contemplated "returning" the money from its general funds. Further, a loan, to be repaid solely from the income of existing waterworks, and secured by a mortgage on the waterworks, has been held a debt. City of Foliet v. Alexander, 194 III. 457. This decision, however, has been questioned. See 34 Nat. Corp. Rep. 325. And the present case goes much further, since the threatened increase, if any, in taxation seems very remote. The city has executed a purchase-money mortgage which admittedly creates no debt; in addition it has granted a franchise contingently which it had the right to grant absolutely and gratuitously. Roby v. Chicago, 215 Ill. 604. The transaction, therefore, seems to throw no additional burden on the taxpayers, and consequently should not be considered a debt prohibited by the constitution.

MUNICIPAL CORPORATIONS TERRITORIAL LIMITS AND SUBDIVISIONS GRANTING MUNICIPALITY POWER OUTSIDE ITS CORPORATE Limits. The state legislature granted to the city of Memphis general police power for the purposes of sanitation and health ten miles beyond the city limits, and complete

governmental and police power for all purposes for two miles beyond. Held, that both provisions violate the clause of the state constitution which prohibits deprivation of liberty without due process of law. Malone v. Williams, 103 S. W. 798 (Tenn.).

It is clear that two distinct municipal corporations cannot exercise the same power at the same time within the same territories. Taylor v. Fort Wayne, 47 Ind. 274, 281. But the state as sovereign may within proper limits delegate its power to a municipality, and when such a delegation is in conflict with a former grant the latter is impliedly revoked. See Patterson v. Society, 4 Zab. (N. J.) 385, 399. Such extension of jurisdiction has been most frequent for the purpose of regulating liquor traffic, and has been upheld for such purpose to the extent of four miles. Jordan v. Evansville, 163 Ind. 512. The power thus delegated must, however, have reference to the welfare of such municipality. Falmouth v. Watson, 5 Bush (Ky.) 660. Moreover, the delegation to a municipality of any unreasonable or oppressive power over those outside its limits, who have no voice in the corporate affairs, must be regarded with apprehension as a deprivation of liberty without due process of law. It is clear that while such extension of power might be proper in the case of a large city surrounded by sparsely settled country, it would be unjustifiable where two populous cities were contiguous. And the decision in the present case declaring the proposed grant unreasonable seems sound.

PATENTS INFRINGEMENT CONTRIBUTORY INFRINGEMENT. The patentee of a talking-machine had no patent on the sound-producing records used with the machine. The defendant manufactured and sold records solely for the use of purchasers of the talking-machines. Held, that the sale of the records may be enjoined. Leeds & Catlin Co. v. Victor Talking Machine Co., 154 Fed. 58 (C. C. A., Second Circ.).

The doctrine of contributory infringement usually prohibits the sale of unpatented parts of a patented combination, or unpatented articles which are of value only when used in combination with the patented article. Thomson-Houston Electric Co. v. Kelsey, etc., Co., 75 Fed. 1005. The result, as pointed out by the dissenting opinion, is the creation of a monopoly of an unpatented article. But purchasers of patented articles have the right of repair and supply, and it is therefore held that the sale to them of short-lived incidental articles cannot be enjoined. Morgan Envelope Co. v. Albany, etc., Co., 152 U. S. 425. In the present case the court bases its decision on the permanent nature of the records. The better test seems to be that of the practical comparative permanency of the patented and the unpatented article. See Morgan Envelope Co. v. Albany, etc., Co., supra, 433. Records of a talking-machine do not wear out quickly, and are therefore permanent in that sense, but not in another, since in practice they are periodically renewed. The case seems doubtful, therefore, even granting the soundness of enlarging the monopoly of the patent in the case of truly permanent auxiliary articles. Cf. Wilson v. Simpson, 9 How. (U. S.) 109.

POST-OFFICE-POWER TO WITHHOLD MAIL PENDING INVESTIGATION OF FRAUD CHARGES. -The Postmaster-General issued an order withholding the complainant's mail for six weeks, pending the investigation of a charge of fraud. Held, that he is exceeding his power. Donnell Mfg. Co. v. Wyman, 4 The Law 807 (Circ. Ct., E. D. Mo., Sept. 2, 1907).

This case seems the first to define the powers of the Postmaster-General in this matter. He is authorized on evidence of the addressee's fraud, "satisfactory to him," to order mail returned. U. S. COMP. STAT. 1901, § 3929. But it is questionable if he may withhold mail even for a limited time, before he is satisfied of fraud. It may be urged, on the one hand, that the statutory grant of power includes authority to do whatever is necessary to make effectual the object of the grant. See Mayor v. Sands, 105 N. Y. 210, 218. And, as the object is to prevent fraudulent use of the mails, not to imply the power would to a degree defeat the object of the statute, for the addressee, pending an investigation, would reap the benefit of his fraud. On the other hand, it may be argued that whenever a statute gives a right and names a remedy, it impliedly