its operation were confined solely to those engaged in interstate commerce. The remaining three members of the majority declined to commit themselves on this subject. For a discussion of the principles involved in this last point, see 20 HARV. L. Rev. 481.

LANDLORD AND TENANT-COVENANTS IN LEASES WHETHER COVENANT INDIRectly AffeCTING VALUE RUNS WITH LAND. — A lease from A to B contained a proviso for reëntry in case of breach of B's covenant to repair. In making a sublease of part of the premises to C, B covenanted that he would repair the part of the premises retained. The defendant, B's assignee, failed to repair; whereupon A reëntered and ejected the plaintiff, C's assignee. Held, that B's covenant to C did not run with the land sublet so as to give C's assignee a right of action. Dewar v. Goodman, 24 T. L. R. 62 (Eng., Ct. App., Nov. 8, 1907).

This decision affirms that of the lower court, for a discussion of which see 20 HARV. L. REV. 577.

LANDLORD AND TENANT RENT DISTRESS ON STRANGER's Goods ON PREMISES. The plaintiff was an underlessee of rooms on the defendant's premises, in which he conducted an art club where exhibitions were held for the sale of members' paintings, the plaintiff retaining a commission. These exhibitions were open only to persons invited or introduced by members. A distress was levied on the premises by the defendants for rent due from the immediate lessee, and certain of the pictures in the art club were seized. Held, that the pictures are subject to the distress. Challoner v. Robinson, 42 L. J. 527 (Eng., Ch. D., July 30, 1907). Appeal dismissed, [1908] I Ch. 49.

As a general rule at common law, since the landlord is supposed to give credit to a visible stock on the premises, whatever chattels are found there, whether they belong to the tenant or not, may be distrained on. Gorton v. Faulkner, 4 T. R. 565; Lyons v. Elliott, 1 Q. B. D. 210. But there is an exception in favor of trade. Connah v. Hale, 23 Wend. (N. Y.) 461; Simpson v. Hartopp, Willes, 512. The principle seems to be that, where the tenant in the course of a public trade is necessarily put in possession of the goods of others, such goods, although on the demised premises, are not liable to distress for rent. However, the trade must be public; that is, a trade which is in general open to the public, though not necessarily one which is classified as a public calling. See Muspratt v. Gregory, 1 M. & W. 633, 652; 3 ibid 677. Clearly, then, the present decision is sound. The plaintiff's trade was not a public trade in any sense. And the privilege, when granted, is not primarily for the trader; the law, in consideration of the benefit which the community derives from the carrying on of the trade, protects the goods. See Muspratt v. Gregory, supra, 645, 646.

LEGACIES AND DEVISES - LAPSED BEQuests and Devises - Set-off of DEBT OF ORIGINAL LEGATEE AGAINST LEGATEE SUBSTITUTED BY STATUTE. — A statute provided that if a legatee died before his testator the legacy should not lapse, but should go to the legatee's heir “in the same way it would have gone to the legatee had he survived." Held, that the legacy falling to the heir of a deceased legatee is subject to debts owed the testator by the deceased legatee. Tilton v. Tilton, 82 N. E. 704 (Mass.).

An executor may set off debts owed the testator against a legatee, since the debts are assets, the retention of which by the legatee would be inequitable. Howland v. Hecksher, 3 Sandf. Ch. (N. Y.) 519, 525. A similar set-off may be made against the legatee's assignee, since the latter stands in the shoes of his assignor. Estate of Casper Dull, 137 Pa. St. 116. But in the present case the primary legatee never had any interest whatever in the estate. Matter of Hafner, 45 N. Y. App. Div. 549. On his predeceasing the testator, his heir takes under the testator's will, to the exclusion of the legatee's husband, wife, or personal representatives. Jones v. Jones, 37 Ala. 646. If the testator in his lifetime had erased the name of one legatee and substituted another, it is clear that the legacy would not be subject to the debts of the first legatee. The statute operates in a similar way, substituting a new legatee for one who cannot

take, in order to prevent a lapsed legacy. The weight of authority in similar devise cases is that the substituted heir takes free. Powers v. Morrison, 88 Tex. 133. The statute should have the same effect in the case of a legacy. Carson v. Carson's Executor, 1 Met. (Ky.) 300.

MUNICIPAL CORPORATIONS ACTIONS BY MUNICIPAL CORPORATIONS ESTOPPEL BY LACHES. The plaintiff company maintained uninterrupted and exclusive use of streets in an unused portion of the city for over forty years, and had invested large sums which would be lost if the street should be reopened. Held, that the city is equitably estopped from claiming that the plaintiff's structures constituted an obstruction of the street. City of Chicago v. Illinois Steel Co., 82 N. E. 286 (Ill.).

No estoppel arises when both parties are equally well informed. Attkisron v. Plum, 50 W. Va. 104. In the principal case, therefore, what is actually laches and adverse possession is treated as an estoppel because of the fancied injustice in ousting one who has knowingly occupied and improved municipal property. The better doctrine is that one who encroaches on the public domain without affirmative justification does so at his peril. Barter v. Commonwealth, 3 Pa. 253; Lawrenceburg v. Wesler, 10 Ind. App. 153. But decisions similar to the present case are frequent. N. Y., N. H. & H. R. R. v. New Haven, 46 Conn. 257. Such cases seem but a logical conclusion from the doctrine that municipal corporations are not exempt, as is the state, from the operation of the statute of limitations and its equitable counterpart, laches. Boone County v. Burl., etc., R. R., 139 U. S. 684. But this discrimination against the rights of smaller sections of the public seems unjustifiable. Cf. 20 HARV. L. REV. 644. The courts, however, should no more support a municipality in unconscionable proceedings than an individual; so, where justice requires it, a public right may be lost by estoppel. But in the present case the city made no representations on which the plaintiff could rely, and hence the basis of true estoppel is lacking.

MUNICIPAL CORPORATIONS - AssessmentS FOR LOCAL ImprovemenTS — ASSESSMENT OF RAILROAD RIGHT OF WAY. - Under statutory provision a city council ordered a sidewalk to be constructed, and assessed the abutting property owners, including a railroad corporation holding an abutting right of way. The corporation objected that its property was not benefited by the improvement. Held, that the assessment by the city council is conclusive as to what property is benefited. Northern Pac. R. R. Co. v. City of Seattle, 91 Pac. 244 (Wash.).

Whether or not a railroad right of way is subject to special assessment is a disputed question. See 2 ELIOTT, RAILROADS, § 786. The power to assess is usually granted by statutes which authorize the municipality to declare what property is benefited by an improvement and to assess accordingly. The basis of this taxation is benefit to the particular property assessed, aside from the general benefit to the community. It is obviously difficult to find sufficient benefit to a railroad right of way by most improvements of adjoining streets to justify a special assessment. But such improvements as the establishment of contiguous drainage are clearly of benefit to a right of way. Louisville, etc., R. R. Co. v. State, 122 Ind. 443. And an assessment has been held constitutional where there was only a possibility of future benent to the right of way. Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430. The courts will properly go to great lengths in supporting a legislative finding of benefit. But to preclude the courts from any review of the legislative determination would open the door to arbitrary and unreasonable confiscation of property by a municipality, and on this ground the decision in the present case cannot be supported. See Allegheny City v. West Pa. R. Co., 138 Pa. St. 375; 2 DILL., MUN. CORP., § 761.

PARTNERSHIP - RIGHTS AND REMEDIES OF CREDITORS - OSTENSIBLE PARTNERSHIP. A carried on business under the firm name of A & B. B was an infant. A separate creditor of A attached assets of the ostensible firm,

which were then claimed by a firm creditor. Held, that the firm creditor is entitled to priority over the separate creditor as to these assets. Codville Georgeson Co. v. Smart, 10 Ont. W. Rep. 466.

In the distribution of firm assets a firm creditor is entitled to priority over an individual creditor of one member of the firm, though the other member is an infant. Lovell v. Beauchamp, [1894] A. C. 607; see 8 HARV. L. REV. 361. The rule of priority has been held to apply in the case of the bankruptcy of an ostensible firm. Ex parte Hayman, 8 Ch. D. 11; Kelly v. Scott, 49 N. Y. 595. The English case distinctly puts this on the statutory ground of reputed ownership, which could not apply to the principal case where there is no bankruptcy. The preference of firm creditors is said to result from the equitable lien which each partner has on the firm assets. Case v. Beauregard, 99 U. S. 119. But in the case of an ostensible partnership there can be no such lien in fact; and no good reason appears why the separate creditors should be estopped from denying its existence. See 10 HARV. L. Rev. 49. There are accordingly some cases which hold that a prior attaching creditor, whether he gave credit to the ostensible firm or to the actual member personally, gets a preference over a subsequently attaching creditor. Himmelreich v. Shaffer,

182 Pa. St. 201.

PATENTS INfringement—CompensatorY DAMAGES IN EQUITY.-On January 27, 1902, the defendants, after several years of unlicensed use, abandoned two machines which infringed the complainant's patent. On November 1, 1901, the complainant established with third persons a general uniform license rate, payable quarterly, the first instalment due December 10, 1901. No evidence was offered of any profits accruing to the defendants from the infringement. Held, that the complainant may recover the amount of one quarter's license for two machines, with interest from January 27, 1902. Diamond Stone Sawing Mach. Co. v. Brown, 155 Fed. 753 (Circ. Ct., E. D. N. Y.).

The federal courts, in exercising equity jurisdiction over patent infringements, formerly measured the recovery solely by the defendant's profits. See Root v. Railway Co., 105 U. S. 189, 194. However, U. S. Rev. Stat., § 4921, enlarges the equity remedy, by entitling the complainant to recover the damages he has sustained "in addition to the profits to be accounted for by the defendant." Under this provision, compensatory damages fixed by license fees were awarded a complainant, it appearing that the infringer obtained no profits. Marsh v. Seymour, 97 U. S. 348. The present decision goes one step further, awarding compensatory damages without regard to the defendant's profits. The license fee is the accepted measure of the complainant's loss, but only where such fee is general and uniform, and established prior to the infringement. See Rude v. Westcott, 130 U. S. 152, 165. Since the license fee here was not established until November 1, 1901, and was the only evidence of the complainant's loss, the court rightly refused damages for infringements perpetrated before that date. Where license fees are the measure of damages, the courts have awarded interest from the time such fees fell due. Locomotive Safety Truck Co. v. Penn R. R. Co., 2 Fed. 677; McNeely v. Williames, 96 Fed. 978. The present decision is a departure from these cases.

PROXIMATE CAUSE INTERVENING CAUSES - OWNER INJURED IN SAVING PROPERTY ENDANGERED BY DEFENDANT'S NEGLIGENCE. A spark from the defendant's engine ignited conbustible materials allowed by the defendant to collect along its track. The plaintiff's intestate, seeing her buildings in danger, tried to extinguish the fire and, though using due care, was burned to death. Held, that the plaintiff can recover, since the defendant's negligence was the proximate cause of the death. Illinois Central R. R. Co. v. Siler, 82 N. E. 362 (Ill.).

For a discussion of the principles involved, see 16 HARV. L. REV. 379.

RECEIVERS - APPOINTMENT BY STATE COURT AFTER APPOINTMENT BY FEDERAL COURT. - New Jersey creditors of a New York corporation secured

the appointment of receivers for its property by the federal circuit court. Then the attorney-general of New York, in the course of a suit to dissolve the corporation pursuant to statute, because of its insolvency for a year, moved for the appointment of receivers for its property. A statute permits the appointment in a dissolution suit. Held, that receivers will be appointed, but they are to request the federal court to relinquish control, and are not to molest the federal receivers. People v. N. Y. City Ry., 107 N. Y. Supp. 247 (Sup. Ct.). See NOTES, p. 279.

SALES IMPLIED WARRANTIES OBLIGATIONS OF Vendor of STOCK. The appellant purchased from the appellee shares in a certain mining corporation. The corporation proved to be a de facto one, and the shares part of an illegal over-issue. The appellant sought to rescind the sale. Held, that the sale is valid, since the vendor of stock impliedly warrants only his title to the stock and its genuineness. Burwash v. Ballou, 82 N. E. 355 (III.).

The vendor of stock impliedly warrants his ownership in the stock certificate, that it is genuine, and that he is authorized to transfer the title thereto. If the vendee desires further protection, he must ordinarily exact an express warranty. Higgins v. Ill. Trust and Savings Bank, 193 Ill. 394. Since the vendor and vendee are presumably on an equal footing, there seems to be no element of unfairness which demands the implication of further warranty that the stock sold is stock of a de jure corporation. Harter v. Eltzroth, 111 Ind. 159. Where there is a contract for the sale of bonds of which there is only an unauthorized issue outstanding, delivery of bonds of such issue is sufficient. Otis v. Cullum, 92 U. S. 447. Where, however, there are both authorized and unauthorized issues, delivery of bonds of the illegal issue, though in good faith, is not a sufficient compliance with the terms of the contract, since it is presumed that the vendee contracted for bonds of the valid issue. Meyer v. Richards, 163 U. S. 385. The same rule would seem to apply to issues of stock, though the present case fails to notice the distinction. Cf. Lincoln v. Express Co., 45 La. Ann. 729; contra, People's Bank v. Kurtz, 99 Pa. St. 344.

STATES VALIDITY OF STATE BOND STOLEN AFTER REDEMPTION BEFORE MATURITY. A statute authorized an issue of negotiable state bonds, redeemable before maturity, and provided that all bonds redeemed should be destroyed. A bond which had been redeemed, but not cancelled or destroyed, was stolen and came into the possession of the relator, a holder in due course. Held, that mandamus lies to compel the state treasurer to redeem the bond again. Ehrlich v. Jennings, 58 S. E. 922 (S. C.). See NOTES, p. 282.

66

STATUTES INTERPRETATION · Requirement of Knowledge in ConVICTIONS UNDER THE SAFETY APPLIANCE ACT.-Section 2 of the Safety Appliance Act, 27 Stat. at L. 531, makes it unlawful for any common carrier "to haul, permit to be hauled or used on its line any car used in moving interstate traffic" not equipped with workable automatic couplers. In an action thereunder, the government proved defects in the couplers without proving the defendant's knowledge thereof. Held, that to sustain a conviction, the evidence must prove beyond a reasonable doubt that the carrier either had discovered the defects, or could have discovered them by the exercise of the utmost care. United States v. Illinois Cent. R. R. Co., 156 Fed. 182 (Dist. Ct., W. D. Ky.); contra, United States v. C., B. & Q. Ry. Co., 156 Fed. 180 (Dist. Ct., D. Neb.). So far as it is necessary to prevent injury to persons or property, the regulation and control of railroads is within the police power of the states. Jones v. Alabama & Vicksburg Ry. Co., 72 Miss. 22. The purpose of the Safety Appliance Act, as set forth in the title, is to promote the safety of employees and travellers. It is analogous to an exercise of state police power. No mens rea is required to convict for offenses against police regulations involving no moral turpitude. Com. v. Wentworth, 118 Mass. 441. The present case can therefore be supported only by reading into the act a requirement of knowledge. It is settled that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. See

Johnson v. Southern Pacific Co., 196 U. S. 1, 17. On the other hand, the operation of a statute has been restricted within narrower limits than its words imported when the court considered that the literal meaning would extend to cases which the legislature never intended to include. United States v. Kirby, 7 Wall. (U. S.) 482. This rule, at best dangerous, is inapplicable here, as Congress may have desired to procure a high degree of care by imposing absolute responsibility. And the weight of authority is against the present case. United States v. Southern Ry. Co., 135 Fed. 122.

TAXATION - Collection AND ENFORCEMENT ACTION AT LAW. - The United States brought indebitatus assumpsit to collect a sum due under the Spanish War Tax, which provided for a fine in case of non-payment. Held, that the action does not lie. United States v. Chamberlain, 5 The Law 202 (C. C. A., Eighth Circ., Oct. 17, 1907). See NOTES, p. 283.

TAXATION GENERAL LIMITATIONS ON TAXING POWER - UNEQUAL TAXATION OF BANK SHARES AND OTHER MONEYED CAPITAL. - A New York statute imposed a tax of one per cent on the value of the stock of all banks organized under the laws of the state or of the United States, without any deduction for the personal indebtedness of the owners. In the case of taxes on all other personalty such deduction was allowed, but the tax rate was more than twice as high. Held, that there is no discrimination against national bank shares. People ex rel. Bridgeport Savings Bank v. Feitner, 120 N. Y. App. Div. 838.

The federal statutes provide that a state tax on national bank stock must not be at a greater rate than that upon other " moneyed capital." U. S. Rev. Stat. $ 5219. This is to prevent discrimination tending to discourage investments in national bank shares. First Nat'l Bank v. City of Richmond, 39 Fed. 309. But moneyed capital only includes money employed where the object of the business is the making of profit by its use as money. Mercantile Bank v. New York, 121 U. S. 138. Consequently, if the tax is void it is solely because the rate is higher on the stock of a banking corporation than on other moneyed capital, and this is a question of fact. In considering it the whole tax system must be considered rather than an exceptional effect in a peculiar case. Pelton v. Nat'l Bank, 101 U. S. 143. A difference in name or method of assessment is not a discrimination unless there is in fact a greater burden on national banks. Nat'l Bank of Wellington v. Chapman, 173 U. S. 205; Van Slyke v. State, 23 Wis. 655. The conclusion of the court seems justified in view of the fact that the small portion of moneyed capital not in bank stock and from which a deduction for debt is allowed pays a much higher rate than bank shares.

TAXATION PARTICULAR FORMS OF TAXATION-STATE INHERITANCE TAX ON STOCK OF CORPORATIONS INCORPORATED IN SEVERAL STATES.A New Hampshire testatrix bequeathed stock in a corporation incorporated in Massachusetts and in other states. Held, that the value of this stock for the purpose of the succession tax to be paid in Massachusetts is limited to the value of the franchise and property in Massachusetts which it specifically represents. Kingsbury v. Chapin, 82 N. E. 700 (Mass.).

This decision follows a recent New York decision commented on in 20 HARV. L. REV. 313.

TAXATION PURPOSES FOR WHICH TAXES MAY BE LEVIED-STATE AID TO DISABLED FIREMEN. A South Carolina statute provided that fire insurance companies doing business within the state should pay a percentage on local premiums to the state treasurer for the benefit of disabled members of fire departments. Held, that the statute is unconstitutional. Aetna Fire Ins. Co. v. Jones, 59 S. E. 148 (S. C.). See NOTES, p. 277.

TRESPASS TO REALTY WHAT CONSTITUTES A TRESPASS - FORCIBLE EVICTION OF TRESPASSER BY OWNER.-A and B were adjoining landowners. Through an innocent mistake, A built a house partly on his own and partly on B's land. Five years thereafter B forcibly entered upon A, sawed the house in