Freeholders of Hudson, 41 N. J. L. 161. On the other hand, it has been held that after the land-owner has been put to the inconvenience of condemnation proceedings, he should be entitled to enforce the judgment. Drath v. Burlington, etc., R. R. Co., 15 Neb. 367. This argument is not of great weight, since the court may require the condemnor in case of abandonment to make good any loss occasioned by the proceedings. In Matter, etc., Waverly Water Works Co., 85 N. Y. 478. In some instances, however, the condemnor must proceed after a confirmation of the damages assessed has been made by the court at his request. Matter of Rhinebeck, etc., R. R. Co., 67 N. Y. 242. But after mere assessment of damages the right to abandon should be allowed, though it must be exercised within a reasonable time in order to protect the land-owner. State of Ohio v. C. & I. R. R. Co., 17 Oh. St. 103. Some cases which refuse the right to withdraw depend on the wording of the statute. Stafford v. Mayor, etc., of Albany, 7 Johns. (N. Y.) 541.

EQUITY-SPecific PerfoRMANCE - LACK OF MUTUALITY OF REMEDY AS DEFENSE. The assignee of an insolvent corporation sold its real estate, agreeing to procure the resignation of the old officers and directors. Having done so, he filed a vendor's bill for specific performance. Held, that the vendee's original lack of mutuality of remedy is no defense. Kentucky Distilleries, etc., Co. v. Blanton, 149 Fed. Rep. 31 (C. C. A., Sixth Circ.). For a discussion of the principles involved, see 20 HARV. L. REV. 57. EVIDENCE FOREIGN LAW PROOF To be Made to Court. An action was brought for a tort committed in another state. Proof of apparently unconflicting foreign statutes and decisions was made to the court out of the presence of the jury. Held, that this method is proper. Christiansen v. Graver Tank Works, 223 Ill. 142.

Although the foreign law must be proved as a fact, jurors are, as a rule, incompetent to deal with such abstruse questions, and this has led to the majority rule in this country which leaves all such proof to the court. Ferguson v. Clifford, 37 N. H. 86. Even where there is conflicting oral evidence, so that the credibility of witnesses is involved, the rule is the same. Hooper v. Moore, 5 Jones L. (N. C.) 130. The contrary view on this last point seems clearly preferable as preserving to the jury one of its ordinary functions. Holman v. King, 7 Met. (Mass.) 384. So, where there is conflicting written evidence, it would seem desirable for the jury to pass upon it. But the present case is undoubtedly correct, though the court evidently intended to adopt the wider rule. For, since the evidence was harmonious, the court construed the written evidence as it would other documents. Cook v. Bartlett, 179 Mass. 576. In England an intermediate rule seems to prevail, which requires the court to assist the jury, though the question is ultimately left to the latter. See Mostyn v. Fabrigas, 1 Cowp. 161, 174.

FEDERAL COURTS — JURISDICTION — UNITED STATES AS PARTY. A federal statute required every contractor for public works to execute a bond to the United States conditioned upon performance of the contract and upon payment of persons supplying materials, and further provided that any one supplying materials might sue on this bond to his own use in the name of the United States. A materialman brought an action in a federal court under this statute. Held, that the United States is a real and not merely a nominal party, and that, therefore, the federal courts have jurisdiction. U. S. Fidelity & Guaranty Co. v. United States, U. S. Sup. Ct., Feb. 25, 1907.

This decision affirms that of the lower court, which was criticized in 18 HARV. L. REV. 314.

A, in

FIXTURES EFFECT OF AGREEMENTS ON THEIR CHARACTER. possession of the defendant's mill under a contract of purchase, had agreed that all machinery placed upon the premises should become a part of the realty. He annexed an engine bought from the plaintiff under an agreement that title should remain in the vendor until full payment. After default on both contracts A surrendered to the defendant the mill with the engine still annexed.

Held, that, on refusal to deliver, the plaintiff may sue for conversion of the engine. Davis v. Bliss, 187 N. Y. 77. See NOTES, p. 565.

HUSBAND AND WIFE - CREATION OF MARRIAGE RELATION COMMON LAW MARRIage as AffECTING BIGAMY. On an indictment for bigamy the state relied upon proof of a former marriage, accomplished merely by promises in praesenti followed by cohabitation by the parties as man and wife. Held, that there has been no former marriage to support a conviction. Bates v. State, 29 Oh. Circ. Ct. Rep. 189.

The

An indictment for bigamy cannot, of course, be supported without proof of a former valid marriage. But the view has been generally adopted in this country that promises in praesenti followed by cohabitation accomplish a valid marriage, even under marriage statutes which are mandatory in form, unless they contain express words to the contrary. Meister v. Moore, 96 U. S. 76; Heymann v. Heymann, 218 Ill. 636; contra, Dunbarton v. Franklin, 19 N. H. 257. court in the present decision recognizes as authoritative a case in which a conviction for bigamy was supported, although the person who solemnized the marriage had not the required authority. Carmichael v. State, 12 Oh. St. 553. It is true that the English rule, explained by the necessity there of some religious solemnity, conflicts with that decision. Catherwood v. Caslon, 13 M. & W. 261. But it seems difficult to find any satisfactory reason for refusing to apply the principle recognized in the earlier Ohio decision — namely, that compliance with statutory requirements is not essential to a binding marriage to the facts in the present case. General policy favors supporting common law marriages, and there seems to be no good reason for rejecting them in criminal prosecutions and supporting them in civil actions.

ILLEGAL CONTRACTS CONTRACTS AGAINST PUBLIC POLICY ATTORNEYS' FEES FOR SOLICITED BUSINESS. The plaintiffs, a firm of attorneys, solicited a large number of claims for personal injuries and brought suit thereon. The defendants compromised with the claimants without the consent of the attorneys, and the latter sued the defendants for the fees promised by the claimants. Held, that the contracts obtained by the solicitation of the attorneys are invalid. Ingersoll v. Coal Creek Coal Co., 98 S. W. Rep. 178 (Tenn.).

This case seems the first of its kind. Others resembling it have included the additional element of maintenance. See Gammons v. Johnson, 76 Minn. 76. But this contract was objectionable neither on that ground nor because of the promise of a contingent fee. The decision must be based solely upon public policy, which forbids such professional impropriety and so close an approach to barratry. To solicit causes of action tends to promote litigation and to degrade the profession. That such practice is regarded as undesirable is shown by the decisions which declare void attorneys' contracts to pay for business brought to them. See Alpers v. Hunt, 86 Cal. 78. And New York makes the formation of such a contract a misdemeanor. N. Y. Civil Code, § 74. Although the court could rely upon neither statute nor precedent, it exercised a wellrecognized and proper discretion in thus asserting public policy. See Jones v. Randall, Cowp. 37, 39. In the absence of a statute the facts of this case would not justify disbarment, since they do not show that the attorneys lacked the mental or moral qualities necessary in members of the profession. Discreditable behavior in itself is not sufficient. Dickens' Case, 67 Pa. St. 169.

INTERSTATE COMMERCE - CONTROL BY CONGRESS

State JurisdICTION TO HOLD UNREASONABLE CHARGES POSTED AND FILED UNDER ACT OF 1887. A shipper sued a railway in a state court to recover an alleged overcharge on an interstate shipment. The rate exacted by the carrier was that fixed by the schedules which it had posted and filed with the Interstate Commerce Commission in compliance with the Act to Regulate Commerce of 1887. § 22 of the Act expressly saved common law remedies, and § 9 expressly conferred on federal courts jurisdiction of offenses within the Act, of which overcharging was one. Held, that the action cannot be maintained. Texas and Pacific Ry. Co. v. Abilene Cotton Oil Co., U. S. Sup. Ct., Feb. 25, 1907.

The court recognizes that the common law gives a shipper a right to recover overcharges by a carrier on an interstate shipment. W. U. Tel. Co. v. Call Pub. Co., 181 U. S. 92. The decision rests wholly on the basis that the Act of 1887 impliedly deprived state and federal courts of the power to declare duly scheduled rates unreasonable, unless the Interstate Commerce Commission has previously found them so. Both the apparently contrary provisions of the Act the court overrides by an implication based on its general scope and purpose. The underlying ground is the confusion that would spring from a contrary result in view of the provisions of the Act as to discrimination. For § 6 forbids a carrier to charge more or less than the scheduled rate. This rate is thus made a standard, and even contracts to depart from it are unenforceable. Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242. It is plain, then, that the very compliance by a carrier with a state judgment would be a violation of the Act. thermore, the Commission was created to deal with the determination of rates, and it would be against the policy of the Act to take questions of reasonableness wholly from that board, and leave them to juries incapable of adequately meeting them. Kinnavey v. Terminal Ry. Ass'n, 81 Fed. Rep. 802.

Fur

INTERSTATE COMMERCE CONTROL BY STATES-TRAVELLING SALESMEN SOLICITING ORDERS FOR LIQUOR. A state statute imposed a license charge upon travelling salesmen soliciting orders for intoxicating liquor. The defendant. representing a firm in another state, solicited from residents proposals to buy liquor for their own use. If his firm accepted them, it shipped the liquor from its own state to the buyers. The defendant was prosecuted for not having paid the license charge. Held, that the statute, being a police regulation, is not invalid as a restriction on interstate commerce, and that conviction of the defendant under it is proper. Delamater v. State, U. S. Sup. Ct., March 11, 1907.

The state's police power is allowed by the Wilson Act to extend over imported liquor, though still in the original package. 26 U. S. STAT. AT L. 313, č. 728. Aside from the question of interstate commerce, the police power is competent to regulate not only the sale of liquor but also the keeping of it for the owner's consumption. Mugler v. Kansas, 123 U. S. 623. Therefore, solicitation to purchase liquor, for selling or keeping, is naturally within the police power also. The opinion, however, raises a difficulty by stating that the police power does not, even under the Wilson Act, extend over liquor received from another state for the receiver's own consumption. See Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 25. If this be sound, the defendant's soliciting seems, contrary to the decision, which is based on the alleged analogy of life insurance cases, unobjectionable. However, the true rule would seem to be that, though by the Wilson Act shipments are not subject to police regulation until delivery, nevertheless the solicitation of shipments is subject to it entirely. For since the ultimate act, whether of selling or keeping, should be subject to the police power, the fact that the solicitation of the preliminary step of transportation is lawful may be practically disregarded.

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, 23 T. L. R. 225 (Eng., K. B. D., Jan. 11, 1907).

It is agreed that performance on the premises is not essential to covenants running with the land, but difficulty is met in determining what covenants to be performed elsewhere will run. The more extreme view of some American cases is that a covenant indirectly affecting the value of land to the holder will run, as in the case of an agreement not to establish a competing business on neighboring land. Norman v. Wells, 17 Wend. (N. Y.) 136; Nat'l Union

Bank v. Segur, 39 N. J. L. 173. In these jurisdictions the present defendant would probably have been liable. By the more conservative view, however, such a covenant by a lessor will not run with the leased premises. Thomas v. Hayward, 4 Exch. 311. In general, a covenant running with the land must have a direct effect, independent of collateral circumstances, upon the nature, quality, or value of the thing demised, or upon the mode of enjoying it. Mayor of Congleton v. Pattison, 10 East 130; Gibson v. Holden, 115 Ill. 199. The covenant in the present case does not meet these requirements; the effect of a breach upon the land demised is dependent upon a collateral circumstance, namely, the election of the superior landlord to avail himself of the proviso for reëntry contained in the original lease.

LIBEL AND SLANDER ACTS AND WORDS ACTIONABLE WORDS IMPUTING UNCHASTITY TO WOMAN. The defendant used words imputing unchastity to the plaintiff, an unmarried woman. The plaintiff sued for siander without alleging or proving special damage. Held, that, although the acts charged were not criminal, the action is maintainable. Battles v. Tyson, 110 N. W. Rep. 299 (Neb.).

The long-established rule of the common law refusing relief to a woman who has been charged with unchastity unless she can show special damage, has often been severely criticized. See Lynch v. Knight, 9 H. L. Cas. 577, 593. It is simply an arbitrary rule, unexplained even by the side-lights of history and indefensible on principle, for such a charge is infinitely more damaging to a woman than that of some comparatively slight offense for which the law provides punishment. The court in the present case is therefore justified in departing from established law, though few other courts have had the temerity to do so. Cushing v. Hederman, 117 la. 637; Barnett v. Ward, 36 Oh. St. 107; see Smith v. Minor, 1 N. J. L. 19. One of these jurisdictions has refused to give redress where a man is the subject of the charge. Davis v. Brown, 27 Oh. St. 326. That the common law rule is not satisfactory is shown by the fact that some states have changed the rule by statute. Campbell v. Irving, 146 Ind. 681, 683. In others the same result comes about from statutes making specific acts of unchastity criminal, so that the words necessarily charge with a crime. Hacker v. Heiney, 111 Wis. 318.

MORTGAGES RIGHTS AND LIABILITIES OF PARTIES - APPLICATION OF INSURANCE TO MORTGAGE DEBT. — The complainant mortgagee petitioned for foreclosure for default in payment of interest. Part of the property mortgaged had been destroyed by fire, and the defendant contended that the proceeds of an insurance policy thereon, procured by the mortgagor for the benefit of the mortgagee, should have been applied to the payment of the interest as it fell due. Had this been done, nothing would have been due when the petition was brought. Held, that the petition be dismissed. Thorp v. Croto, 65 Atl. Rep. 562 (Vt.). It has been held that the mortgagor cannot insist on the mortgagee's applying the proceeds of an insurance policy, taken out by the mortgagor for the mortgagee's benefit, to a mortgage debt not yet due. Naquin v. Texas, etc., Ass'n, 67 S. W. Rep. 85 (Tex.). It has also been held that the mortgagee cannot insist on such application. Fergus v. Wilmarth, 117 Ill. 542. After payments are due, however, there is some uncertainty in the language of the courts as to the exact manner in which proceeds of insurance should be applied. On the one hand are statements that they should be applied to the debt pro tanto. See Fowley v. Palmer, 5 Gray (Mass.) 549. And it has been said that such a fund should be treated as are rents and profits of the estate. See Larrabee v. Lambert, 32 Me. 97. On the other hand are statements that the proceeds should be held as a substitute for the property destroyed. See Powers v. Insurance Co., 69 Vt. 494; Gordon v. Ware Sav. Bank, 115 Mass. 588. This last view seems sound. Since insurance represents destroyed property, it would seem that either the mortgagor or mortgagee might insist on its being used to restore the destroyed property or kept intact as a substitute therefor, instead of being exhausted in the payment of interest or instalments of principal. Cf. Boutelle v. Minneapolis City, 59 Minn. 493.

MUNICIPAL CORPORATIONS FRANCHISES AND LICENSES ESTOPPEL OF CITY TO DENY VALIDITY OF ORDINANCE. - A city by ordinance granted a lighting company the right to lay pipes in the streets. After several miles had been laid a bill was brought in the city's right to enjoin the company from laying more pipes and from maintaining those already laid, on the ground that the ordinance was ultra vires. Held, that the city is estopped to deny the validity of the ordinance. Darby v. Norwood, 52 Oh. L. Bul. 253 (Oh., Č. P. Hamilton Co., Dec., 1906). See NOTES, p. 564.

POLICE POWER - REGULATION OF BUSINESS AND OCCUPATIONS — RESTRICTIONS ON SALE OF WHOLE STOCK BY RETAIL DEALERS. - A statute provided that sales by retail dealers of their entire stock should be void against creditors, unless, seven days before sale, notice of the intended transaction and its terms should be recorded in the town clerk's office. Held, that the statute is constitutional. Young v. Lemieux, 65 Atl. Rep. 436 (Conn.).

Prima facie the statute infringes two constitutional provisions. Restrictions on contracting are a deprivation of liberty. Also, retailers as a class are denied equal protection of the laws. But the police power may be a justification. Protection of citizens from fraud is one of its proper objects. Powell v. Pennsylvania, 127 U. S. 678. And retailers often contract debts, sell out secretly, and disappear, leaving creditors remediless. Furthermore, a retail business offers especial opportunities to sell quickly and secretly. This statute allows creditors to secure themselves. It has not the burdensome requirement of sending inventories to each creditor, found in similar statutes held unconstitutional. Wright v. Hart, 182 N. Y. 330; Miller v. Crawford, 70 Oh. St. 207. But it presses the necessity of making preferably private agreements public far beyond those sustained statutes requiring only notice to creditors. Squire v. Tellier, 185 Mass. 18; Neas v. Borches, 109 Tenn. 398. Whether such a statute is a reasonable, and therefore a valid, exercise of the police power is for the business judgment. But it is strange that the earliest American statute of this sort was passed in 1896, if the measure is as essential as claimed to protect creditors of a class which has existed always.

POLICE POWER REGULATION OF PROPERTY AND Use Thereof - FLAG LAWS. A Nebraska statute forbade the use of the American flag for advertising purposes. The defendant was indicted for so using it on a bottle of beer. He pleaded that the statute was unconstitutional under the Fourteenth Amendment. Held, that it is valid. Halter v. Nebraska, U. S. Sup. Ct., March 4, 1907.

This affirms the decision of the state court, criticized in 19 HARV. L. Rev. 532.

POWERS DEFECTIVE EXECUTION-TIME OF EXECUTION. The plaintiff's husband was entitled by his father's will to certain real estate for life with remainders over, with power to appoint by way of jointure to any wife he might marry. Before the testator died, the plaintiff's husband, by a settlement made in consideration of his intended marriage with the plaintiff, covenanted to exercise this power in her favor. The marriage took place, and on the testator's death the plaintiff's husband came into possession of the real estate, but died without appointing. Held, that the covenant was a defective execution of the power, valid in equity, and that the plaintiff is entitled to her jointure. Charlton v. Charlton, [1906] 2 Ch. 523. See NOTES, p. 560.

Land was

POWERS POWER OF SALE VALIDITY OF MORTGAGES. conveyed in trust for A for life, remainder in trust for the plaintiffs, with power in A to convey the fee absolutely and to re-invest the proceeds on similar trusts. A executed a purchase-money mortgage to the settlor and subsequently a second mortgage to the assignees of the first. Held, that the plaintiffs are bound by the first mortgage but not by the second, and that therefore a foreclosure sale under the second alone transferred only an equitable life estate. Stump v Warfield, 65 Atl. Rep. 346 (Md.). See NOTES, p. 568.