denied and the defendant claimed a right to plead to the merits. Held, that the judg ment by default stands. Mantle v. Casey, 78 Pac. Rep. 591 (Mont.).

In courts governed by codes similar to that of Montana a demurrer has been held to be such answer as complies with the provision and prevents default. Oliphant v. Whitney, 34 Cal. 25. But it has also been held, in line with the present case, that a motion of this sort, concerning matters preliminary or collateral to the issue, is not such answer. Higley v. Pollock, 21 Nev. 198. There is little or no authority for the opposite view. See Lyman v. Bechtel, 55 Ia. 437. A general appearance seems to be required, except in states which, like Colorado, expressly name a motion as sufficient to prevent default. It might be said that in the principal case the defendant should have asked for an extension of the time for answering. But a dissenting justice argues that such a request would amount to a general appearance and an admission of the jurisdiction which the defendant denies. Cf. Yale v. Edgerton, 11 Minn. 271; contra, Powers v. Braly, 75 Cal. 237. Where this is so the use of a motion to quash is rendered hazardous unless the defendant is sure of his ground or can secure an immediate hearing. The result, however, is perhaps satisfactory so far as it discourages technical and dilatory motions.

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MARSHALING ASSETS AND SECURITIES FORECLOSURE of Mortgages — EQUAL EQUITIES. Part of property subject to three mortgages was taken for a railroad. Pending a suit for compensation, which was to be subject to the mortgages, the third mortgagee was cut out of the remaining land by foreclosure of the second mortgage. He then sought to marshal the first mortgage against the remaining land in favor of the compensation fund. Held, that the first mortgage is to be paid ratably from the land and the compensation money. Bates v. Boston Elevated R. Co., 72 N. E. Rep. 1017 (Mass.). See NOTES, p. 453.

MUNICIPAL CORPORATIONS

- LIABILITY FOR TORTS-CONDITION OF Streets. A city authorized an excavation under a public sidewalk, and the construction of a temporary bridge over the opening. Under the weight of a crowd, the bridge gave way. Held, in an action for the death of a person injured thereby, that there is no evidence to support a verdict against the city, but that it is a question for the jury whether the contractors who built the bridge were negligent in its construction. Coolidge v. City of New York, 90 N. Y. Supp. 1078.

A city is under a duty to keep its streets in reasonably safe condition. While not an insurer, it must use due care, and this duty of care cannot be delegated. Village of Jefferson v. Chapman, 127 Ill. 438. Hence the city is liable for injuries due to the dangerous condition of highways obstructed by city works, though the danger is caused by the negligence of independent contractors. Storrs v. City of Utica, 17 N. Y. 104; City Council v. Cone, 91 Ga. 714. It is not liable for their negligence when it does not affect the condition of the way. Herrington v. Village of Lansingburgh, 110 N. Y. 145. This duty being the basis of liability, the same reasoning applies where work is done in a street, for private persons under the city's license. Hayes v. West Bay City, 91 Mich. 418. In the principal case, since the city had notice that a dangerous opening had been made, a finding that the opening was negligently protected, no matter who was charged with the immediate duty of making the bridge safe, seems as conclusive against the city as against the contractor.

PLEADING

- DEFENSE OF PURCHASE FOR VALUE. After conveying land to the plaintiff the grantor mortgaged it to the defendant, whose deed was recorded before that of the plaintiff. Held, on a bill to quiet title, that the burden is on the plaintiff to prove that the defendant is not a bona fide purchaser. Sheldon v. Powell, 78 Pac. Rep. 491 (Mont.).

The principles governing the pleading of a bona fide purchase vary according to the substantive rights involved. In the first class are cases analogous to those in which a trustee transfers the trust property. The cestui's equitable right is thereby extinguished. See 18 HARV. L. REV. 53. To make out a new right against the purchaser he must prove bad faith. McNeil v. Magee, 5 Mas. (U. S.) 244. Second, in cases like actions by a land-owner to recover his title-deeds, since title-deeds follow the land, equity will grant relief, unless the holder defend by proving that he is an innocent purchaser. Wallwyn v. Lee, 9 Ves. Jun. 24. Finally, in actions like the present, where the defendant records his title without notice of a prior unrecorded deed to the plaintiff, in jurisdictions where the person recording acquires title, the plaintiff must proceed in equity and charge the defendant's conscience by proving notice. McNeil v. Magee, supra; cf. Phifer v. Barnhart, 88 N. C. 333. If however, by statute, one recording with notice get no title, the plaintiff must bring ejectment, and, to prove his right of entry, show that the defendant, because of bad faith, acquired no title. Anthony v. Wheeler, 130 Ill. 128.

POLICE POWER-REGULATION OF BUSINESS AND OCCUPATIONS-HORSESHOERS REQUIRED TO PASS EXAMINATION. — A statute was enacted providing for the examination and registration of horseshoers in certain cities. Held, that the statute is unconstitutional as an illegitimate exercise of the police power. In re Aubrey, 78 Pac. Rep. 900 (Wash.).

This seems to be a sound application of the principles which determine the limitations of the police power in regulating occupations. For a discussion of these principles in connection with a case holding a requirement of examinations for plumbers constitutional, see 17 HARV. L. REV. 356.

PRESUMPTIONS DEATH AFTER SEVEN YEARS - DECLARATIONS AGAINST INTEREST. — Held, that an absconding solicitor, although he may have remained absent to avoid the ordeal of public bankruptcy, is presumed to be dead when he has not been heard of for seven years, and his entries of collections are admissible in evidence as declarations against interest. Wills v. Palmer, 53 W. R. 169 (Eng., Ch. D.).

By the common law, in the absence of proof of death, life is presumed to continue. From ancient statutes, relating to bigamy and life estates, has been adopted the counter-presumption of death after seven years' absence without intelligence. Cf. Burr v. Sim, 4 Whart. (Pa.) 150, 170. But the rule is practically uniform that such presumption arises only when no news has been received by persons likely to hear from the absentee; and is rebutted by circumstances fairly explaining his silence consistently with life. Bowden v. Henderson, 2 Sm. & G. 360. In the light of these authorities this decision seems ill-considered, but cases are infrequent which apply the presumption merely to render evidence admissible, and that situation may require a less exacting rule than where property interests are directly involved. Cf. Manby v. Curtis, I Price 225, 229. The court thus circumvents the prevailing doctrine that declarations against interest are admissible only after the declarant's death. Stephen v. Gwenap, 1 Moo. & R. 120; see contra, Shearman v. Atkins, 4 Pick. (Mass.) 283, 293. It would seem more logical to apply the presumption of death uniformly, and either reject the evidence entirely, or, on analogy with similar cases, extend the doctrine admitting such declarations to include those of absentees. Cf. North Bank v. Abbot, 13 Pick. (Mass.) 465, 471.

QUIETING TITLE-BILL TO REMOVE VENDOR'S LIEN WHEN CLAIM FOR PURCHASE PRICE IS BARRED BY LIMITATIONS. - The plaintiff purchased land from the defendant, who retained a vendor's lien as security for the purchase-money note. Both the lien and the note being barred by the statute of limitations, the plaintiff filed a bill to have the lien removed as a cloud upon his title. Held, that the bill can be granted only on condition that the plaintiff pay for the land. Cassell v. Lowry, 72 N. Ē. Rep. 640 (Ind., Sup. Ct.).

It is true that equity will not as a rule allow a title otherwise unimpeachable to be clouded by a claim which can never be successfully enforced, since such a claim can result only in oppression and useless reduction of value. Steam, etc., Co. v. Jones, 21 Blatchf. (U. S.) 138. Accordingly a disseisor who has acquired land by adverse possession for the statutory period is entitled to a decree of a court of equity making his title perfect of record. Arrington v. Liscom, 34 Cal. 365. The fact that in Indiana the running of the statute of limitations against the debt bars also the lien which secures it, would seem at first sight to bring the present case within these principles, since the plaintiff is in possession of the land with a title which no one can dispute. But though the statute limiting personal actions bars all remedies, it does not, like the statute applicable to realty, extinguish the right. Under such circumstances the court is right in denying relief till such obligation is discharged. Booth v. Hoskins, 75 Cal. 271.

RESTRAINT OF TRADE-CONTRACTS TO EMPLOY ONLY UNION MEN - VALIDITY. The plaintiff prayed an injunction decreeing that his employer should not, in pursuance of a contract with a labor union, discharge him as a non-union man; and that the members of the union should not strike to procure his discharge. Held, that the injunction against the employer should be denied, and the injunction against the union modified so as to permit peaceable striking, boycotting, or picketing. Mills v. United States, etc., Co., 91 N. Y. Supp. 185.

The plaintiff union sued the defendant under a contract by which the defendant had agreed to employ only union men in good standing. Held, that the contract is against public policy and cannot support an action. Jacobs v. Cohen, 90 N. Y. Supp. 854.

It once seemed that the law of New York on the liability of unions for procuring the discharge of non-union employees by threats of striking was settled in practical accordance with the present rule in England and Massachusetts. Curren v.

Galen, 152 N. Y. 33; Quinn v. Leathem, 70 L. J. P. C. 76; Plant v. Woods, 176 Mass. 492. But in 1902 the question was reopened by a strong assertion of the legality of

such action. National Protective Ass'n v. Cumming, 170 N. Y. 315. The two recent Supreme Court cases, considered together, affirm but limit this latter rule. In the first case the court allows the employer to discharge non-union men according to contract, and permits the other parties to the pact to strike peaceably to procure such discharge. They may adjust matters between themselves. In the second case the court refuses to punish non-compliance with the agreement. If these cases stand as law they place contracts to employ only union members in the category of those agreements whose performance the courts will neither forbid nor assist; and point out another act which, like taking usury and refraining from marriage, is impolitic but not illegal.

RESTRICTIVE AGREEMENTS AS TO USE Of Property - CHANGE IN CHARACTER OF LOCALITY AS Ground for Refusing INJUNCTION Where Duration of CoveNANT IS LIMITED. In an action brought to enjoin the erection of an apartment house upon the defendant's premises in violation of a covenant entered into by a former owner from whom the defendant had bought with notice, the defense was interposed that the character of the neighborhood had so changed as to render an enforcement of the agreement inequitable. The covenant between the original parties had at first been without limitation, but was shortly afterward modified so as to expire in twenty-five years. Held, that an injunction will be granted, since the modification of the agreement shows conclusively that the parties intended it to be strictly enforced during the time limited for its operation. McClure v. Leaycraft, 97 N. Y. App. Div. 518.

Courts of equity will not decree specific performance of agreements restricting the use of land where the character of the locality has so changed as to defeat the purpose of the agreement and to render its enforcement of little benefit to the plaintiff and a great hardship to the defendant Trustees of Columbia College v. Thacher, 87 N. Y. 311; Jackson v. Stevenson, 156 Mass. 496. The fundamental question in each case should be, whether under the circumstances the relief sought would be equitable. In determining this question, the fact that the parties have shown or expressed an intention to make the covenant binding regardless of changes in the neighborhood should be merely a circumstance in favor of granting the decree, to be given more or less weight as the suit is between the original parties, or between subsequent purchasers from them. Likewise, the fact that the covenant is limited to a short period of years may make its enforcement less inequitable, but should hardly be conclusive. Cf. Page v. Murray, 46 N. J. Eq. 325.

SPECIFIC PERformance - GENERAL NATURE AND SCOPE OF EQUITable ReLIEF INSOLVENCY. -The plaintiff sought specific performance of a contract for the sale of cattle, alleging payment of the purchase price and the defendant's insolvency. Held, that the bill will not lie. Hendry v. Whidden, 37 So. Rep. 571 (Fia.). See NOTES, p. 454.

TAXATION-COLLECTION AND ENFORCEMENT-ASSUMPTION OF INVALID TAXES.— The plaintiffs obtained title to certain land by a deed reciting that it was subject to taxes which the purchasers agreed to pay as a part of the consideration. Having subsequently ascertained that the taxes were invalid, the plaintiffs sued for an injunction to restrain the city from collection. Held, that the plaintiffs are estopped to deny the validity of the taxes. Eddy v. City of Omaha, 101 N. W. Rep. 25 (Neb.).

If the city's claim upon its debtor's promisor be recognized as purely derivative and founded upon doctrines analogous to those governing statutory garnishment, it seems difficult to uphold this result, since the creditor's right against his original debtor has failed. In cases of the assumption of mortgages it is frequently said that where the mortgagor was not originally liable to the mortgagee, the latter has no right against the mortgagor's grantee. Ward v. De Oca, 120 Cal. 102. Yet in a large class of cases the grantee's promise is construed as one not merely to indemnify, but to pay an alleged debt, the possible invalidity of which his grantor has waived. See Freeman v. Auld, 44 N. Y. 50; Kennedy v. Brown, 61 Ala. 296. This interpretation seems equally applicable to the case of assumption of invalid taxes. It would seem, however, that it is to be applied with caution, and only where a fair interpretation of the contract of the original parties clearly justifies it. It has been rejected in isolated cases of the assumption of invalid mortgages as well as of invalid taxes. See Goodman v. Randall, 44 Conn. 321; State v. Mayor of Jersey City, 35 N. J. Law 381. As to the applicability of principles of estoppel, see 17 HARV. L. REV. 497.

TITLE, OWNERSHIP, AND POSSESSION THINGS SUBJECT TO OWNERSHIP AS PROPERTY OYSTERS. Under a statute, the plaintiff and defendant enjoyed per

petual franchises of adjoining tracts under the waters of Long Island Sound for purposes of shellfish cultivation. The plaintiff, supposing the defendant's land to be his own, deposited oyster shells upon it so that young oysters in the free-swimming larval stage became attached to the shells and developed into marketable oysters. The defendant having taken these oysters was sued for conversion. Held, that the plaintiff can recover, as the property is in him. Vroom v. Tilly, 91 N. Y. Supp. 51.

Whether property in oysters is governed by the general law of original acquisition and disseisin of chattels or by its special branch relating to wild animals has been a puzzling question. Oysters have been variously regarded as being analogous to: (1) animals ferae naturae; (2) inanimate personalty; (3) ferae naturae until taken and thereafter inanimate chattels; (4) emblements. See (1) McCarty v. Holman, 22 Hun (N. Y.) 53; (2) State v. Taylor, 27 N. J. Law 117; cf. (3) Fleet v. Hegeman, 14 Wend. (N. Y.) 42; (4) Huffmire v. City of Brooklyn, 22 N. Y. App. Div. 406. This interesting case seems to test the nature of the property right. Whatever the status of adult oysters, the free-swimming form seems more nearly ferae naturae, and if such, when taken by a trespasser title would be in the owner of the land or privilege. Blades v. Higgs, 11 H. L. Cas. 621. Again, though the shells sown remain the plaintiff's personalty, it is difficult to say that the young oysters are the increase of such chattels. But see Grace v. Willets, 50 N. J. Law 414. If the shells be regarded either as seed or as realty to which the oysters became attached, the defendant's case is even clearer. The analogy to animals ferae naturae seems the most helpful, but on whatever reasoning, the court might well have decided for the defendant.

TRANSFER OF STOCK-ATTACHMENT BY CREDITOR WHERE TRANSFER NOT RECORDED- RIGHTS WHERE CREDITOR HAS ACTUAL NOTICE. A statute provided that no unregistered transfer of stock should be valid against the creditors of the stockholders. Held, that an attaching creditor prevails over an unregistered transferee even though he has actual knowledge of the transfer. Scott v. Houpt, 83 S. W. Rep. 1057 (Ark.).

Under statutes making stock transferable only on the books of the company, the courts have not generally invalidated unrecorded transfers, but have given the assignee at least an equitable interest in the stock. Kellogg v. Stockwell, 75 Ill. 68. Accordingly, the transferee's interest has been held sufficient to entitle him to sue the directors for misconduct. Parrott v. Byers, 40 Cal. 614. So too such a transfer is good against the transferrer's assignee in bankruptcy. Dickinson v. Central National Bank, 129 Mass. 279. And, again, by the great weight of authority and contrary to the principal case, an attaching creditor having notice of the unregistered transfer is not protected. Bridgewater Iron Co. v. Lissberger, 116 U. S. 8. The latter rule seems correct. The purpose of statutes requiring registration is to prevent fraud by giving notice to all persons dealing with the stock. Under such circumstances actual notice should be treated as equivalent to registration. Furthermore, since the objects of these statutes are largely the same as those of recording acts, the principal case would seem inconsistent with the line of decisions in the same state as to unrecorded deeds, where a purchaser having actual notice is not protected. Cf. Byers v. Engles, 16 Ark. 543. TRUSTS

RESULTING TRUSTS EFFECT OF INDETERMINATE CONTRIBUTION TO PURCHASE PRICE.- Property was bought in the name of a married woman out of a fund arising from the earnings of the husband, the wife, and adult and minor children. The exact proportion contributed by the husband and minor children was not ascertainable. Held, that no trust results in favor of the husband. Onasch v. Zinkel, 72 N. E. Rep. 716 (Ill.).

Almost universally, when several persons contribute proportionate shares to the purchase price of land conveyed to one, a trust results in their favor. It is often stated that the share must be some aliquot portion of the whole amount (i. e. one-third, onefifth, etc.), giving a proportionate aliquot interest in the land. McGowan v. McGowan, 14 Gray (Mass.) 119. Such seems to be the rule in Illinois. But see Fleming v. McHole, 47 Ill. 282. A more reasonable rule obtains in most jurisdictions, where any fraction has been allowed; so long as a definite share is found, a trust arises to the extent of the contribution. Currence v. Ward, 43 W. Va. 367. Almost everywhere the claimant must prove a definite interest and leave no uncertainty as to his share; and a general, indeterminable contribution creates no trust. Olcott v. Bynum, 17 Wall. (U. S.) 44. Yet, in a few cases, where the shares were undefined, they were presumed to be equal. Edwards v. Edwards, 39 Pa. St. 369. Even if the amounts had been ascertainable in the present case, no other result should have been reached, since, as between husband and wife, the doctrine does not apply, and the legal conveyance to the wife is deemed an advancement unless there be satisfactory evidence of a contrary intention. See Adlard v. Adlard, 65 Ill. 212.

WILLS EXECUTION ATTESTING WITNESSES: HUSBAND OR WIFE OF LEG ATEE AS WITNESS. This action was brought by the heir at law to contest a will on the ground that the husband of one of the legatees was a subscribing witness thereto. Held, that such relationship does not disqualify the husband from being a subscribing witness. Lanning v. Gay, 78 Pac. Rep. 810 (Kan.).

Where a devise or bequest is made to either husband or wife of an attesting witness, by the decided weight of authority such witness is thereby disqualified. Sullivan v. Sullivan, 106 Mass. 474. In arriving at this conclusion courts are guided by the consideration that such witnesses are incompetent on account of personal interest, and that a husband and wife cannot ordinarily testify for or against each other. In some jurisdictions, however, where bequests to subscribing witnesses are void by statute, a strained interpretation makes a bequest to the husband or wife of such a witness invalid, thus rendering the witness competent by removing the objectionable element of interest. Jackson, ex dem. Beach v. Durland, 2 Johns. Cas. (N. Y.) 313. In a few jurisdictions where a husband and wife are permitted by statute to testify for or against each other, the interest of either party in a bequest to the other is considered too remote to disqualify him or her as an attesting witness. Lippincott v. Wikoff, 54 N. J. Eq. 107. The principal case, which apparently holds the whole will valid, seems to have gone farther than any previous one in arriving at this result without statutory aid.

BOOKS AND PERIODICALS.

I. LEADING LEGAL ARTICLES.

WAR RISKS IN MARINE INSURANCE. — This subject, which since the breaking out of the Russo-Japanese war has naturally been of special interest, is considered in a recent article by a French writer. De quelques questions relatives à l'assurance des risques de guerre, by Emile Audouin, 31 J. du Droit Internat. Privé 1025 (Nos. XI.-XII., 1904). It was formerly the practice, he says, for the same policy to cover both ordinary perils of the sea and war risks, for a single premium. But gradually a change was made, until in 1900 the principal marine insurance companies operating in Europe adopted the principle of a special policy for each kind of risk.

The change makes necessary an exactness in the legal definition of ordinary and war risks not required before. If the insured has to cover the two in different companies, it is important for him to see that there are no gaps to leave him without protection, as will happen if the war risk contract is held not to cover a loss, which the law governing the ordinary risk contract would not consider the result of an ordinary peril. If he can sue on both policies in the same country, there is little danger that the decisions will not supplement each other. But one who insures in France against ordinary perils and in England against war risks, may find the difference between English and Continental jurisprudence a grave matter. England determines whether a loss is caused by war by what seems to the Continental mind a very narrow principle, that of proximate cause. An example is the holding that the insurers against ordinary risks are liable for the loss of a vessel which went ashore because the Confederates had extinguished the light on Cape Hatteras. The immediate cause of the loss was the striking on the reef, not the act of war. And in the Spanish-American war the United States vessel Columbia, cruising at night without lights in conformity with orders, struck and sank a British vessel. The French court held the war risk insurer responsible, but Douglas Owen, an English authority, declares an English court would have held differently, for the war had nothing directly to do with the loss; a war vessel without lights might have done the same damage in manœuvers in time of peace. M. Audouin summarizes the English view as holding the risk an ordinary one, unless there is a direct act of hostility against the object insured. The more liberal Continental view is that if it can reasonably be said that the loss would not have happened except for the war, the war