innocence of the defendant. The court overruled the defendant's challenge for cause. Held, that the ruling is error. People v. Mol, 100 N. W. Rep. 913 (Mich.).

Where the facts sufficiently appear, the cases in which service on a former trial cf another defendant has been held ground for disqualification, seem regularly to fall into two classes: (1) where there was participation in the offense; (2) where the verdict in both cases depended on proof of the same material fact. Examples of the first class are a joint assault, bribery of one defendant by the other, and participation by both in the same illegal game. People v. Troy, 96 Mich. 530; Brown v. State, 104 Ga. 736; Obenchain v. State, 35 Tex. Cr. App. 490. An instance of the second class was where both defendants had sold liquor to a person of known intemperate habits. As both sales were admitted, the vendee's reputation became the only fact in issue. Smith v. State, 55 Ala. I. In the principal case there was no participation, and the evidence of the second defendant's guilt was purely corroborative. To raise upon such facts a conclusive presumption of prejudice would seem scarcely necessary. Support is, however, lent the case by a Michigan statute, which, by prohibiting the questioning of jurors concerning their verdict, might render extremely difficult any thorough examination of a juror's professions of impartiality.

JURY-PEREMPTORY CHALLENGES NUMBER ALLOWED WHEN SEVERAL INDICTMENTS ARE CONSOLIDATED. A statute provided that in all. cases, civil and criminal, each party shall be entitled to three peremptory challenges." A single defendant was tried on nine indictments concerning the same scheme to defraud, which had been consolidated under a statute. Held, that it is error to restrict the defendant to three peremptory challenges. Betts v. United States, 132 Fed. Rep. 228 (C. C. A., First Circ.).

Although the rule laid down apparently places the defendant in a better situation than he would have occupied if the trials had been separate, the few decisions upon this statute are favorable to the position of the court. Thus the Supreme Court of the United States has held that when several actions against different defendants are consolidated and tried together, each defendant has three peremptory challenges. Mutual, etc., Co. v. Hillmon, 145 U. S. 285. And the Circuit Court of Appeals for the eighth circuit has decided that it is not error to allow a single plaintiff in such a consolidated suit more than three peremptory challenges. Times Publishing Co. v. Carlisle, 94 Fed. Rep. 762, 780. The result of these decisions seems to be that a trial of several actions which have been consolidated, is, in substance, not a trial of a single case but of several separate ones, and that the number of challenges should be computed on this basis. As no distinction can be taken under the statute between civil and criminal cases, these adjudications would seem fully to support the present case.

LIMITATION OF ACTIONS - ACCRUAL OF ACTION CITY WARRANTS. — An Oklahoma statute authorized the levy of a special tax for payment of city warrants. After more than the statutory period had elapsed since the issue of his warrants, the plaintiff brought mandamus to compel the city officials to levy the tax. The defendants set up the statute of limitations. Held, that the statute does not begin to run on the warrants until the city has provided a fund for their payment, and that the mandamus proceedings are consequently not barred. Barnes v. Turner, 78 Pac. Rep. 108 (Okla.).

The decision purports to proceed upon the rule that when payment of town warrants is to be made out of a particular fund, the cause of action does not accrue until that fund is provided. This proposition is based upon an interpretation of the city's promise as one to pay when the money is available, and though denied in some jurisdictions, it may possibly be regarded as established. Lincoln County v. Luning, 133 U. S. 529; contra, Wilson v. Knox County, 28 S. W. Rep. 896 (Mo.). In most of the cases, however, it seems a fair inference from facts not always clear that it never rested with the warrant-holder to determine when the fund should be available; for the warrants were payable only out of money derived from the general taxes and appropriated to the special purpose, and the creditor had no remedy on the warrants if the revenues were disbursed in other ways. See Sawyer v. Colgan, 102 Cal. 283. In the Oklahoma case the plaintiff could plainly have compelled the provision of the fund at any time by instituting mandamus proceedings. Goldman v. Conway County, to Fed. Rep. 888. The case seems, therefore, a questionable extension of the general principle relied on. See, however, Davis v. Commissioners of Lincoln County, 23 Nev. 262.

LIMITATION OF ACTIONS-NATURE AND CONSTRUCTION OF STATUTE → STATUTORY LIABILITY: WHAT LAW GOVERNS. A Montana statute made directors liable for corporation debts if they failed to file an annual report, provided suit was

brought by the creditor within one year after such failure, time not to be counted in favor of a director out of the state. Two years after the plaintiff had acquired a right under this statute against the defendant, who had never been in Montana, a code of civil procedure was passed there, one section of which limited the time for bringing action against directors, even as to rights already accrued, and as against defendants everywhere, to three years. The plaintiff brought suit in Connecticut more than three years after his right had accrued. Held, that the Montana statute of limitation applies and the action is barred. Davis v. Mills, 194 U. S. 451. See NOTES, p. 220.

MORTGAGES - RIGHTS AND LIABILITIES OF PARTIES COMPENSATION. A mortgagee in possession claimed on foreclosure a commission of five per cent of the rents as compensation for his services in collecting them and caring for the estate. Held, that he is not entitled to compensation. Barnard v. Paterson, 100 N. W. Rep. 893 (Mich.).

The English courts early established the policy that no trustee is entitled to a collateral advantage as compensation. Ayliffe v. Murray, 2 Atk. 58. This included a mortgagee in possession, since, in so far as he is not holding as trustee for another, he is holding for himself as a money-lender, and so is zealously deprived of chances for usury and oppression. Accordingly equity, in its abundant sympathy for the mortgagor, refused to enforce an express agreement for compensation. French v. Baron, 2 Atk. 120. But the mortgagee may reasonably employ an agent at the expense of the mortgagor. Bonithon v. Hochmore, 1 Vern. 316. This shows the services themselves are valuable and legitimate. In the United States it is quite generally agreed by statute or otherwise that, in the interests of efficient management, a fiduciary should receive compensation. Barney v. Saunders, 16 How. (U. S.) 535, 542. Several states that reach this result without statute apply the same policy to the legitimate services of the mortgagee, under close scrutiny to avoid oppression. Gibson v. Crehore, 5 Pick. (Mass.) 146. This is in accordance with modern conceptions, but the weight of authority is with the principal case. Blunt v. Syms, 40 Hun (N. Y.) 566.

PAROL EVIDENCE RULE - CONSTRUCTION OF INSTRUMENT RULE APPLIED TO THIRD PARTIES. — A furnace company contracted in writing with the defendants for reduced freight rates on the product of “two blast furnaces." The company had in fact only one furnace. The plaintiff, in an action to recover for excessive freight charges of the defendants, sought to introduce evidence tending to show that one of the two furnaces referred to in the contract was a furnace operated by him, and that he was therefore entitled to the benefit of the reduced rates, although his name did not appear in the instrument. Held, that the evidence is not admissible. Thompson v. Erie R. R. Co., 96 N. Y. App. Div. 539.

The court felt itself unable to admit the evidence under the rule forbidding the introduction of extrinsic evidence to vary a written instrument. But it is commonly stated that this rule applies only to the parties to the instrument. See Lowell Manufacturing Co. v. Safeguard Insurance Co., 88 N. Y. 591. Accordingly a stranger to a mortgage deed has been allowed to set up an oral agreement between the debtor and the mortgagee. Jewett v. Sunbach, 5 S. D. 111. This distinction is reasonable, since it would clearly be unfair to deprive third persons of the right to contradict an instrument merely because the parties who made it are bound by its terms. In the present case, however, the plaintiff, although not mentioned in the agreement nor claiming under it as assignee, is attempting to vary the terms of a contract on which he seeks to hold the defendant liable; and so the case comes well within the reason of the rule which prevents the use of extrinsic evidence to vary what the parties have agreed should be the final memorial of their transaction. See I GREENL., EVID., 16th ed., § 305 h.

PATENTS INFRINGEMENT - SUCCESSIVE CONFLICTING DECISIONS REGARDING THE SAME PATENT IN DIFFERENT CIRCUITS.-Held, that in an action for infringement of patent the Circuit Court of the second circuit will follow the Circuit Court of Appeals of the second circuit, notwithstanding a contrary decision of the Circuit Court of Appeals of another circuit on the same facts. Eldred v. Breitwieser, 132 Fed. Rep. 251 (Circ. Ct., W. D. N. Y.). See NOTES, p. 217.

LIABILITY TO TRESPASSERS

RAILROADS CONTRIBUTORY NEGLIGENCE. The defendant's brakeman, three cars ahead, threw pieces of coal at the plaintiff, who was stealing a ride while the train was in rapid motion. When dodging the coal, the plaintiff let go his hold and was thrown under the wheels. Held, that since the plaintiff jumped from the cars voluntarily, the defendant is not liable. Powell v. Erie R. R. Co., 58 Atl. Rep. 930 (N. J., C. A.).

A railroad company is liable if a trespasser is injured by being ejected from a rapidly moving car. Rounds v. Delaware, etc., R. R. Co., 64 N. Y. 129. Whether there is the same liability when the trespasser jumps off in obedience to a peremptory command is apparently in conflict. A judgment for an infant trespasser in such a case will not be disturbed. Kline v. Central Pacific R. R. Co., 37 Cal. 400. And in the case of an adult the same conclusion is reached if the one issuing the command is in a position to enforce it immediately. Gulf, etc., Ry. Co. v. Kirkbride, 79 Tex. 457. On the other hand, if threatening commands are given but no actual force can be immediately applied, the defendant is not liable to an adult. Plantz v. Boston, etc., R. R. Co., 157 Mass. 377. The line seems to be drawn on the question of compulsion in fact, for if the plaintiff's act was voluntary he contributes in causing his own damage. Plantz v. Boston, etc., R. R. Co., supra. On this principle the present case may be supported; but in concluding from the facts that the plaintiff's act was voluntary the court goes further than in any other case found.

RECEIVERS INTERFERENCE WITH FORECLOSING LIEN OBTAINED ON TAX SALE.Land conveyed to a trustee to secure to the plaintiff the repayment of a loan, was later sold for taxes, and purchased by the person through whom the defendant claims. By statute, land sold for taxes might be redeemed within two years. If it was not redeemed, the purchaser might get a deed from the court after the expiration of this period, but if he failed to procure it during the third year, the right of redemption revived, existing until the deed was obtained. Six years after the sale, a receiver was appointed in a federal court for the plaintiff corporation, and one year after this appointment, the defendant obtained his deed from the state court. Held, that a decree should issue from the former court declaring the tax deed void, but ascertaining a prior lien in favor of the defendant. Johnson v. Southern, etc., Association, 132 Fed. Rep. 540 (Circ. Ct., W. D. Va.).

The defendant, having paid the consideration, holds an equitable title to the land, the legal title to which is in the state auditor. Since, under the statute, the plaintiff may redeem by reimbursing the purchaser, he stands in the relation of a mortgagor of the latter's equitable title. The obtaining of a deed from the state court by the purchaser destroys the plaintiff's equity of redemption. But the possession of a receiver is the possession of the court; the property is a fund in court, and if there is to be a change in the receiver's property rights, it should be through his administration. Wiswall v. Sampson, 14 How. (U.S.) 52. Because of this principle, liens and mortgages may not, by the prevailing authority, be foreclosed after the appointment of a receiver, but must await adjustment by him. Walling v. Miller, 108 N. Y. 173; Phelps v. Sellick, Fed. Cas. No. 11,079. In the present case, the state court has cut off a property right which was entrusted to the receiver; and the existence of the principle mentioned, which seems founded in necessity, accounts for the apparently harsh decision. But see Preston v. Loughran, 58 Hun (N. Y.) 210.

RECORDING AND REGISTRY LAWS - NOTICE BY RECORD POSSESSION OF TENANT IN COMMON AS CONSTRUCTIVE NOTICE OF UNRECORDED CONVEYANCE FROM CO-TENANT.— Held, that the possession of one tenant in common is constructive notice of a title acquired by him from a co-tenant as against the latter's judgment creditor, though the conveyance was not recorded. Collum v. Sanger Bros., 82 S. W. Rep. 459 (Tex., Sup. Ct.). See NOTES, p. 218.

RULE AGAINST PERPETUITIES -TIME OF VESTING AND NOT THE DURATION OF THE ESTATE THE TEST. A testator left his residuary estate in trust to A for life, remainder to several grandchildren for life, with remainders to their children. The grandchildren were born after the death of the testator and before the death of A. Held, that the life estates to the grandchildren are valid, but that the remainders over are void. Graham v. Whitridge, 57 Atl. Rep. 609 (Md.).

In many former cases Maryland considered that the rule against perpetuities condemned any trust that might last longer than lives in being and twenty-one years thereafter, on the ground that the disposal of the whole estate should not be so long suspended. Barnum v. Barnum, 26 Md. 119. This confounded two distinct rules of law; that estates cannot be made inalienable, and that future estates may not be created after a fixed limit. The court failed to see that an equitable fee is a present and not a future estate and is not less alienable than a legal fee. See GRAY, PERPETUITIES § 236. The principal case brings Maryland into line with all the authorities in regarding the time of vesting and not the time of ending of estates as the test. The remainders to the children of unborn grandchildren are clearly void under either test. The life estates would be void under the old test of duration, as part of a trust ex

tending beyond lives in being and twenty-one years. Lee v. O'Donnell, 95 Md. 538. But because they must vest, if at all, within the legal period, the court correctly holds them good. Otis v. McLellan, 13 Allen (Mass.) 339.

SALES RIGHTS AND REMEDIES OF BUYERS-DUTY TO FURNISH CARS. The plaintiff sued on an executory contract for the sale of lumber, to be delivered f. o. b. cars at the defendant's place of business. The vendor set up in defense that the plaintiff should have furnished the cars. Held, that this is the duty of the seller, and is not a condition precedent to be performed by the buyer. Vogt v. Shienebeck, 100 N. W. Rep. 820 (Wis.).

It is clear that where a contract provides for the delivery of goods f. o. b. cars, it is the seller's duty to load the goods upon them, and to assume all trouble and expense incidental to such loading. Sheffield Furnace Co. v. Hull, etc., Co., 101 Ala. 446. The Wisconsin court argues that supplying cars is but a means to the end which the seller must accomplish. It is well established that where the delivery is to be f. o. b. a ship, the buyer must name and furnish the ship; and by analogy some courts have required the buyer to furnish cars. See Armitage v. Insole, 14 Q. B. 728; Hocking v. Hamilton, 158 Pa. St. 107. This rule proceeds upon the theory that as the buyer is to pay the freight, he is the one to make all arrangements for the carriage of the goods. Ordinarily to-day, however, where transportation is to be by rail, this circumstance has little force; for rates are generally uniform, and often, as in the principal case, shipment is possible over only one railroad. The Wisconsin rule seems, therefore, thoroughly consistent with modern business conditions. See Cincinnati, etc., R. R. Co. v. Consolidated, etc., Co., 7 W. L. Bul. 200.

STATUTES AMENDMENTS EFFECT ON ACT PREVIOUSLY AMENDED. - In 1901 an act amendatory of certain sections of a statute which had previously been "amended to read as follows," was passed. The act of 1901 made no reference to the previous amendment. Held, that the act is valid. Village of Melrose Park v. Dunnebecke, 71 N. E. Rep. 431 (Ill.).

This decision is important as overruling an earlier Illinois case, and settling the law of that state in accord with the great weight of authority. Cf. Louisville, etc., R. R. Co. v. City of East St. Louis, 134 Ill. 656; Columbia Wire Co. v. Boyce, 104 Fed. Rep. 172. It is argued by the opponents of this position that where a section of a statute is amended, it ceases to exist, and therefore cannot be the subject of further legislation by amendment. Feibleman v. State, 98 Ind. 516. This reasoning, however, seems too refined for practical value. While in theory the amended act no longer exists, in reality it retains its place upon the statute book. A reference to it would, therefore, seem sufficient as clearly showing the intention of the legislature that the present enactment should take the place of the previous act as amended. Commonwealth v. Kenneson, 143 Mass. 418.

ΤΑΧΑΤΙΟΝ FRANCHISE TAX. A statute of New York which went into effect Oct. 1, 1901, relating "to franchise taxes of insurance companies," provided for an annual state tax upon life insurance companies equal to one per cent on the gross amount of premiums received during the preceding calendar year for business done in the state. Held, that since this tax is imposed "for the privilege of exercising corporate franchises," it can be laid only upon such business as depended upon the exercise of such franchises after the passing of the statute; and since the collection of premiums upon contracts of insurance already made is not the exercise of a franchise, but depends upon an absolute contract right, premiums received upon contracts of insurance entered into before Oct. 1, 1901, cannot be taken as part of that gross amount of premiums upon which the tax is imposed. People ex rel. The Provident, etc, Society v. Miller, 32 N. Y. L. J. 303 (N. Y., Ct. of App., Oct. 18, 1904).

The rule laid down that the franchise tax can be imposed only upon such business as depends upon the exercise of the franchise is novel. A franchise tax is not a tax on business done; it is a tax on the value of the franchise. People v. Home Insurance Co., 92 N. Y. 328. The cases hold that it is necessary only that the method of taxation employed furnish a fair basis by which to estimate this value. Connecticut Insurance Co. v. Commonwealth, 133 Mass. 161. The total amount of business done is considered a fair measure, but so, also, is the market value of the stock. State Tax on Railway Gross Receipts, 15 Wall. (U. S.) 284; Hamilton Company v. Massachusetts, 6 Wall. (U. S.) 632. But granting the correctness of the holding as to what this tax reaches, it is difficult to understand the ruling that the collection of premiums upon contracts already entered into is not the exercise of a corporate franchise. It would seem axiomatic that every act of a corporation within its powers is an exercise of a corporate franchise. It is submitted, therefore, that the decision is erroneous. Cf. Patterson, etc., Co. v. State Board of Assessors, 69 N. J. Law 116.

TELEGRAPH COMPANIES LIABILITY TO ADDRESSEE

LIVERY.

- Semble, that where the contract between the sender of a telegram and the telegraph company is made for the benefit of the addressee he may maintain an action against the company for neglect to deliver. Frazier v. Western Union Telegraph Company, 78 Pac. Rep. 330 (Ore.).

Whether a telegraph company owes to the addressee of a message any duty to transmit and deliver carefully is a question that has been argued in the courts of many states with little uniformity of result. The above case apparently furnishes the first indication of Oregon's attitude. For a discussion of the principles involved, see 17 HARV. L. REV. 365.

TRADE MARKS AND TRADE NAMES MARKS AND NAMES SUBJECT OF OWNERSHIP GEOGRAPHICAL NAMES. - The defendants entered the jewelry business in Iowa City under the name Elgin Jewelry Company." The plaintiff, the Elgin National Watch Co. of Elgin, brought a bill to enjoin the defendants from using the word "Elgin" in connection with the jewelry business. Held, that through the plaintiff's use of the word "Elgin," in connection with the jewelry business, it has acquired such a secondary meaning as to enable the plaintiff to assert an exclusive right thereto against any one not carrying on that business in good faith at the same geographical location. Elgin, etc., Co. v. Loveland, 132 Fed. Rep. 41 (Circ. Ct., N. D. Ïa.). For a discussion of the principles involved, see 18 HARV. L. Rev. 56.

USES STATUTE OF USES APPLIED TO PERSONALTY. A devised the residue of his estate, real and personal, to trustees and their successors on trust to pay the income to B for life, and after her death to hold for such of A's descendants as B should by will appoint; and on default of appointment to hold for others. B duly appointed the estate to several persons for life, and the remainders went as on default. Held, that the life estates and the remainders are legal and not equitable estates. Graham v. Whitridge, 58 Atl. Rep. 36 (Md.).

The court says the original trust became passive on the death of B and was executed by the Statute of Uses. This application of the statute to personalty is technically wrong, because the grantor is not "seized" of it, and is contrary to the weight of authority. Williams v. McConico, 36 Ala. 22. But without noticing this, courts have sometimes applied the statute to an estate composed of both realty and personalty where the trustee's active duties ceased with the life estate. Doe d. White v. Simpson, 5 East 162. The result may be supported if the court can find an expressed intention to give the trustees a legal estate for only a limited period, with legal remainders over; and there is some evidence of this intention in the fact that the donor reached this result as to his realty and purported to treat his personalty in the same way. But this is solely a matter of construction and seems to be ineffective in the principal case in the face of an express requirement that the trustees continue to hold either for the purposes of the appointment or on default of appointment.

WATER AND WATERCOURSES

NATURAL WATERCOURSES-RIPARIAN RIGHT TO NATURAL FLOW.-The defendant, a riparian proprietor opposite the plaintiff, maintained a dam extending more than half-way across the river. This obstructed the flow sufficiently to enable the defendant thereby to irrigate his own land; but it did no appreciable damage to the plaintiff, who brought suit for interference with her right to have the waters flow by her premises in their natural condition. Held, that as the defendant has not "sensibly diminished, obstructed nor diverted" the stream, he is not liable. Nagle v. Miller, 29 Vict. L. Rep. 765.

In arriving at this conclusion the Victorian court purports to recognize the English rule, that any permanent encroachment on the bed of a running stream sufficient sensibly to interfere with the natural flow thereof, is ground for complaint on the part of any riparian owner who is sensibly injured thereby, without proof that actual damage has been or will be sustained. Bickett v. Morris, L. R. 1 H. L. Sc. 47; The Earl of Norbury v. Kitchin, 15 L. T. Rep. N. s. 501. In America the general rule is that no action lies without proof of actual damage. Norway Plains Co. v. Bradley, 52 N. H. 86; Seeley v. Brush, 35 Conn. 419. There can be little doubt that the American rule is better adapted to the needs and requirements of a new country in order to encourage the development of its natural resources. The conclusion, therefore, is eminently warranted, though it could hardly have been reached by following the English rule. In supporting its view, the court has construed the finding of fact that the plaintiff had suffered no appreciable damage' to mean no sensible injury," and thereby has made an easy transition from the English to the American doctrine.

-

PRODUCTION OF

WITNESSES PRIVILEGE AGAINST SELF-INCRIMINATION DOCUMENTS. The defendant was ordered to produce, for the purpose of refreshing