a right by injunction. Carmine v. Bowen, 104 Md. 207, 64 Atl. 932, 9 Ann. Cas. 1135.

It is not necessary to dispose of the case on the basis of the statutory provision that an injunction shall not be refused on the mere ground that the applicant has an adequate remedy in damages, unless the opposite party shall show that he has property from which the damages can be made or shall give bond to secure their payment Code, art. 16, § 84.

Decree affirmed, with costs, and cause remanded.

NOTE-Reservation of Growing Crops From Sale.-In Grabon v. McCracken, Okla., 102 Pac. 84, 23 L. R. A. (N. S.) 1218, it was held in the case of a deed to certain described land, that it was competent for seller to show that it was agreed at the time of the sale of a matured crop of corn that he might remove same afterwards, this right entering into the consideration of the sale.

There are many cases cited in support of this proposition, among others that of Backenstoss v. Stahler, 33 Pa. 251, 75 Am. Dec. 592, wherein it was said: "It is a rule of the common law that growing crops are personal property, but pass by conveyance as appurtenant to the land, unless severed by reservation or exception, and this rule has not been altered by statute of frauds and perjuries. A party may show by parol that the growing crops were reserved on a sale of the land, although there is no exception in the deed."

This view is said to be upheld in Aull Sav. Bank v. Aull, 80 Mo. 199; Champion v. Munday, 85 Ky. 31, 2 S. W. 546; Richardson v. Traver, 112 U. S. 423, and also cases from Maine, New Hampshire, Alabama, Indiana and Massachusetts.

But several other courts deny this rule. As for example, when it may be applied independently of the principle that the terms of a writing may not be contradicted by parol. There is general recognition of the rule that fructus industriales are chattels though unsevered from the soil. It will be sufficient to cite as to this Marshall v. Fergusson, 23 Cal. 65; Garth v. Caldwell, 72 Mo. 622; Dayton v. Dakin, 103 Mich. 65, 61 N. W. 349.

In Kammrath v. Kidd, 89 Minn. 380, 95 N. W. 213, 99 Am. St. Rep. 603, it was ruled that as a deed takes effect only on delivery and not from its date, the rule of merger of antecedent parol understandings applies, as eo instanti the deed's delivery everything of a parol nature must needs be antecedent. A great abundance of cases are cited to this in a note to the case above as reported in 99 Am. St. Reports at page 605.

In Stewart v. McArthur, 77 Iowa 162, 41 N. W. 774, the rule of parol evidence not being admissible to contradict a writing was enforced where plaintiff claimed reservation of growing crops from a deed to land, and it was held that the proof to show a mistake should be established by clear and satisfactory evidence, which was held not to have been met in that case.

In Gibbons v. Dillingham, 10 Ark. 950, Am. Dec. 233, it was held that the deed containing no

express reservation of growing crops, they passed with the deed.

As showing how this rule works an elaborate note is appended to the case of Crews v. Pendleton, 1 Leigh 297, as reported in 19 Am. Dec. at page 752, where by great abundance of authority it is held that in an execution sale of land all crops then growing pass to the purchaser.

But independently of this rule, showing that the claimant other than the holder of the title must act before any intervening rights may accrue, the case of Smith v. Johnson, 1 Penrose and Watts (Pa.) 471, 21 Am. Dec. 404. holds broadly that growing grain does not pass by a conveyance of the land. Gibson, C. J., discusses the cases quite thoroughly and concludes by saying that "Whatever may be the law in England or our Sister States, it is clearly settled by usage and judicial decision here, that, except by devise, the crop does not pass as parcel of land. The practice of reserving the crop has, I believe, been universal, insomuch that when the reservation is not expressly declared, it is nevertheless a tacit condition of the contract."

Chief Justice Gibson has ever been considered one of the luminous judges of this country. In a preemption case it has been held that one preemptor failing to purchase during the time allowed him by law loses both the right to the crop which he has planted as well as to the land, where he is dispossessed by one who afterwards purchases from the government. Razor v. Qualls. 1 Blackf. (Ind.) 286, 30 Am. Dec. 658. The question of nursery trees being or not fructus industriales is not touched upon.

The question seems unsolved and opinion seems fairly equally divided.

ITEMS OF PROFESSIONAL

INTEREST.

REPORT OF THE NORTH DAKOTA BAR ASSOCIATION MEETING.

The Bar Association of North Dakota held its annual meeting at Jamestown, N. D., on August 19 and 20.

Hon. Peter W. Meldrim, of Savannah, Georgia, delivered the annual address, his subject being "The Trial of Aaron Burr." Wide and intelligent research enabled the speaker to so marshal the facts as to make them speak with irresistible logic and eloquence in appeal to lawyers and laymen for a revision of the popular judgment on one of the most gifted of Americans; in appeal for justice at the hands of the lawyers of today for one of the great lawyers of a hundred years ago. It was not merely a justification of Burr's acquittal on his great trial for treason. It was a revelation of truth, in the light of which the cour age and genius of that unfortunate American

is made to outshine those of some of his contemporaries, not a few of whom stooped to criminal practices in the efforts to accomplish his everlasting disgrace. As a contribution to the literature of the law and of the early political life of the country it is declared that Judge Meldrim's address should rank as a classic.

A notable paper was contributed by the Honorable William Renwick Riddell, of the Supreme Court of Ontario. "What of Canada" was the title, and very many Americans in high places might profit by the reading of it. The League of Nations furnishes the keynote of the address, and in words which reveal the genuine affection of true Canadians for their brothers in "the States," we are told that it was with incredulity that Canadians received information that one of our chief objections to the great peace covenant was that, under it, in the council of nations Canada would have representation equal with that of the United States. No defense of the League of Nations is offered, nor is it argued that its failure should leave the world "without hope." That Canada is no more a dependency of Great Britain than we are is made plain, and is somewhat emphasized by reference to the fact that Canada is now to send her own ambassador to Washington. Under such conditions, it is asked why the United States would more willingly sit down in council on equal terms with the "black republic of Hayti," and some ten or twelve other nations mentioned, than with Canada. A better understanding by some American statesmen of what Canada really is appears worth while. Judge Riddell's address is an appeal for such better understanding to the end that these two nations of English speaking people may the more wisely administer their joint and solemn trust-the mighty destiny of this continent.

The organization of the bar of the state as a body corporate and politic and under the name of "The Law Society of North Dakota" was proposed by the report of a special committee. A tentative draft of a bill by which such organization might be brought about was submitted and discussed at some length. The committee is to make further report before the Association takes definite action on the question.

Hon. Charles A. Pollock, of Fargo, was elected president and John E. Greene, of Minot, secretary-treasurer.

Minot, N. D.

JOHN E. GREENE.

CORRESPONDENCE.

SITUS OF INCOMES FOR TAXATION.

Editor, Central Law Journal:

In your number for June 16, 1920, I was interested to observe editorial comment upon the case of Maguire v. Trefry. You advocate the application of the rule of Union Refrigerator Transit Company v. Kentucky to intangible property. But you also intimate that in your opinion the proposition concerning the nature of the income tax contended for by the appellant in Shaffer v. Carter is more nearly correct than the contention made by the plaintiff in the Maguire case. That is, I understand you to suggest that an income (as distinguished from capital) should be taxed at the domicile of the recipient.

Now the object of extending the Union Transit Company rule is to avoid duplicate taxation. In substance at least this end will not be obtained if you have one situs with respect to the taxation of capital and another situs with respect to the taxation of income. As you will see from the copy of our brief in the Maguire case, which I enclose, Pennsylvania levied a property or capital tax upon the securities composing the trust fund, and Massachusetts topped this tax off with an income tax assessed against the beneficiary. Unquestionably the practical result of this procedure was duplicate taxation. Yet it seems to accord with the propositions which you advance in your editorial comment.

So

In the Maguire decision the United States Supreme Court has said in substance that with respect at least to the income of intangible property it will not hold a state taxing statute unconstitutional because that statute is based upon the fiction that mobilia personam sequuntur. It always has been believed that the United States Constitution left the states considerable latitude within which they could if they saw fit accomplish substantial injustice by means of taxation. while, of course, I should have preferred to see the Maguire case otherwise decided, I am by no means prepared to say that it does more than carry out a recognized principle. We always expected to lose the case, having been advised by the late John G. Johnson that in his opinion the Supreme Court would hold that an equitable interest in personal property, tangible or intangible, could constitutionally be taxed to the owner of that interest at his domicile, despite the fact that the

But this does not necessarily mean that the Shaffer case is wrong. The situation has not yet arisen in which Pennsylvania seeks to levy an income tax upon interest paid by one of her residents to a resident of Massachusetts who holds the Pennsylvania man's promissory note. If and when this case does arise it will come into head-on collision with State Tax on Foreign-held Bonds and I should suppose that the old decision would have vitality enough to carry the day. In pure logic it may be hard to differentiate Shaffer v. Carter from such a case as State Tax on Foreign-held Bonds. But in actual substance and commonsense I see a great difference between a payment of interest money due to a foreign holder of a promissory note and payment of income derived from a tangible flow of oil arising within the taxing jurisdiction.

We are interested in the comment of counsel for plaintiff in the case of Maguire v. Trefry, recently decided by the Supreme Court, on our discussion of the principles involved in this case in 90 Cent. L. J. 439. The situs of intangible property for purposes of taxation is one of the most perplexing of all the problems of the law. Our disposition to accept the decision in the Trefry case was not the result of any logical analysis of the situs of intangible property, but simply a practical solution in line with the great weight of authority. While the Supreme Court has finally released choses in possession from the ridiculous maxim, mobilia personam sequuntur, and has declared that tangible personal property has its situs, not with the owner, but at the place of its actual location, we do not think, for practical reasons, the Court will ever make such a declaration in respect of intangible property. Credits have their situs at the domicile of the creditor and not at the domicile of the debtor. This has been the rule ever since the case of Murray v. Charleston, 96 U. S. 440. But where the credit or chose in action is evidenced by some indicia of ownership, as a note or bond, the Supreme Court has held that such evidences of indebtedness may be taxed at the place where they are deposited. New Orleans v. Stempel, 175 U. S. 322; Bristol v. Washington County, 177 U. S. 145.

What we have sought to do was to create some unanimity of professional opinion to induce the Supreme Court to adopt some uniform rule for determining the situs of incomes for purposes of taxation so as to avoid the injustice so often inflicted on the holders of intangible securities under the uncertain and illogical rules for determining the situs of such property for taxation.

We do not see that the old case of State Tax on Foreign Held Bonds, 15 Wall 300, offers an insuperable barrier to an income tax by Pennsylvania on the income of bonds held in that state by a trustee, as in the Trefry case. That case held that a corporation could not be required to deduct 5 per cent of the interest due on bonds in the hands of a non-resident creditor and pay same to the state treasurer, since that would amount to taxing bonds in another state. In the Trefry case the bonds are actually located in Philadelphia, and under the rule in the Stempel case, supra, the state can

located in the state. It is only an ordinary debt which can have no other situs than that of the creditor, according to Justice Brewer in the Stempel case (p. 314). That position, it seems to us, should be taken with respect to income taxation. It is a simple debt due to the creditor, and under repeated decisions of the Supreme Court, cannot be taxed except at the creditor's domicile.-EDITOR.

Virginia

Wisconsin..

38

6 66

.17, 71, 75, 87

.51, 57, 72 64

85

11

..37, 39, 44, 76

21 56 74

.7, 27, 28, 54 23 32

41 24, 30, S1 1. Adoption Common Law. No right of adoption existed at common law. Holmes v. Curl, Iowa, 178 N. W. 406.

2. Alteration of Instruments-Invalidation.A promissory note is not invalidated because of the unauthorized alteration thereof by a stranger thereto.-Coulson v. Stevens, Miss., 85 So. 83.

3. Materiality.-Material alterations in a promissory note constitute a sufficient plea in bar to an action on the note, and full opportunity should be given the defendant to avail himself of such defense.-McCranie v. Cason, Fla., 85 So. 163.

A creditor

4. Assignments-Garnishment. cannot assign a part of fund due him without the debtor's consent, although he can assign the whole, but such question can be raised only by the debtor or holder of the fund, and not by plaintiff in action against garnishee.Taylor v. Dollins, Mo., 222 S. W. 1040.

5. Assignments for Benefit of Creditors Preference.-A creditor cannot avoid the effect of a trust agreement for the completion of the debtor's contract by trustees on the ground that a creditor who signed subsequently expressly reserved his preference rights to certain funds of the debtor, especially where the former creditor had a similar preference right which he enforced, though he did not expressly reserve it.-Boyle v. Rider, Md., 110 Atl. 524. 6. Attorney and Client Contingent Fee.Contracts by attorneys at law for contingent fees are generally upheld by the courts, but a contract by an attorney at law to assist in the prosecution of a criminal case for a contingent fee, dependent upon the conviction of the accused, is contrary to public policy.-Baca v. Padilla, N. M., 190 Pac. 730.

7. Bankruptcy-False Statement.-The making by bankrupt of a written statement of the financial condition of the firm of which he was a member to a bank, for the expressed purpose

of obtaining a loan of money to the firm, and upon which such loan was obtained, from which statement he omitted items of indebtedness to his wife and sister aggregating $10,000, shown on the books of the firm, held to constitute the obtaining of money on credit by means of a materially false statement, which under Bankruptcy Act, § 14b (3), Comp. St. § 9598, warranted refusal of his discharge.-Perlmutter v. Hudspeth, U. S. C. C. A., 246 Fed. 957.

8. Bills and Notes-Estoppel.-Payment of negotiable paper, and a plea thereof, is the most solemn recognition of execution, delivery, and consideration, and one so pleading is, in the absence of fraud and duress, estopped to deny the admission.-Greenlees v. Chezik, Colo., 190 Pac. 667.

9.- -Negotiable Instrument.-Written orders to an individual requesting her to pay a lumber company $325 for materials, etc., held not bills of exchange or other negotiable instruments within uniform negotiable instruments law being governed by common principles.-Ex Parte E. C. Payne Lumber Co., Ala., 85 So. 9. 10. Brokers-Good Faith.-Agents employed by a landowner to sell or exchange properties for an agreed commission owe their principal the utmost good faith and loyalty while their agency exists, and, if they violate their duty and obligation to him by concealing information as to the prices of property, and by misrepresertation and fraud obtain a profit to themselves in excess of the agreed commission, they forfeit their right to the commission, and render themselves liable for the damages suffered by the principal through their bad faith and breach of duty.-Schlesener v. Mott, Kans., 190 Fac. 745.

11. Carriers of Goods-Commerce Act.-Representatives of interstate carrier cannot, by conversations, letters, and negotiations extending beyond time limited for suit by contract pursuant to the Interstate Commerce Act, estop the carrier to assert and invoke the limitation against the shipper.-Schroyer v. Chicago, R. I. & G. Ry. Co., Texas, 222 S. W. 1095.

12.- -Special Interest.-Any one having a special interest in the goods or the shipment may maintain an action against a carrier for damage in transit.- Bennett v. Dickinson, Kans., 190 Pac. 757.

13. Carriers of Live Stock Verbal Agreement. No verbal agreement for cattle cars for shipment in interstate commerce can be relied on under the Carmack Amendment, which requires a written contract, nor can a preliminary oral agreement for a future interstate shipment.-Underwood v. Hines, Mo., 222 S. W. 1037. 14. Carriers of Passengers-Res Ipsa Loquitur. In a res ipsa loquitur case against a street railway for injuries to a passenger when the street car collided with a team of horses, a charge of general negligence is proper.-Yates v. United Railways of St. Louis, Mo., 222 S. W. 1034.

15. Charities-Trust Fund. A trust fund is for a public, charitable use, where its purpose is to aid any deserving person suffering from cancer to secure treatment for that disease in its early and probably curable stages.-Treadwell v. Beebe, Kans., 190 Pac. 769.

16.

Commerce-Telegram.--The transmission of intelligence by wire, being commerce, is governed by the act of Congress regulating the same, where the route of such transmission lies in more than one state, though the point of origin and the point of destination are within the same state.-Western Union Telegraph Co. v. Bushnell, Ind., 128 N. E. 49.

17. Constitutional Law-Due Process of Law. -Rights of property cannot be taken away or interfered with without due process of law. But there is no property or vested right in any of the rules of the common law, as guides of conduct, and they may be added to or repealed by legislative authority.-Leis v. Cleveland Ry. Co., Ohio, 128 N. E. 73.

18. Contracts Unilateral Contract. Where an employer offered to give 5 per cent bonus to men in its employ making four months' straight time, and an employe accepted the offer by working four months, he was entitled to the bonus; the employer's unilateral contract having become supported by consideration

19. Corporations-Bill of Sale.-A bill of sale of corporate stock, given to secure a debt, is a mortgage, regardless of the wording of the contract.-Lyons v. Yielding, Ala., 85 So. 21.

20.- -Defunct Corporation.-A judgment rendered against a defunct corporation, in an action brought after the forfeiture of its charter by reason of failure to pay license and franchise taxes, is void.-California Nat. Supply Co. v. Flack, Cal., 190 Pac. 634.

21.- -Foreign Corporation.-A single transaction whereby a foreign corporation undertook to find a purchaser for property located in the state does not amount to a doing of business in the state so as to avoid the contract for compensation.-Chas. E. Walters Co. v. Hahn, S. Dak., 178 N. W. 448.

22. Foreign Corporation.-In order to obtain jurisdiction over a foreign corporation by service upon an agent within this state, the authority of the agent and the business in which he is engaged must be of such a character that it may be said that in his person the corporation is present in the state. An agent authorized to take orders, make collections, make adjustments, and dispose of property of the corporation within the state is such an agent.Nienhauser v. Robertson Paper Co., Minn., 178 N. W. 504.

a

23. -Foreign Corporation-The home of corporation is in the state of its creation, and generally, when it engages in business in ancther state, those entering into contracts with knowledge of the limitations imposed by its charter do so subject thereto.-City of Jamestown V. Pennsylvania Gas Co., Ù. S. D. C., 268 Fed. 1009.

24. Stockholder.-Upon an increase of the capital stock of a corporation, a stockholder is entitled to maintain his proportionate influence, and for that reason must be given an opportunity to purchase a proportionate amount of the new shares before they can be offered to outsiders.-Hammer v. Cash, Wis., 178 N. W.

465.

company was

25. Covenants---Running With Land.--A COVenant in a deed conveying a right of way to a railroad company, whereby the to maintain a private farm crossing, runs with the land-Pittsburgh, C., C. & St. L. Ry. Co. v. Kearns, Ind., 128 N. E. 42.

26. Criminal Law-Aiding and Abetting. Though mere presence at the commission of a felony does not make one an aider or abettor thereof, if he was present by a preconcert with guilty parties he is an aider and an abettor. though he does not encourage the commission of the crime by word or act.--State v. Farris, lowa, 178 N. W. 361.

29.

Withdrawal of Plea.--The withdrawal of a plea to an indictment is not a matter of right with the person indicted, but is within the sound discretion of the trial judge to permit or deny.-State v. Gunn, La., 85 So. 45.

30. Damages-Mitigation.-Whatever may be the landlord's obligation, in case the tenant abandons the premises, to mitigate damages by re-entering and re-letting, the landlord is under no obligation to mitigate damages in behalf of those liable for the rent by evicting the tenant and reletting the premises.-H. H. Camp Co. v. Pabst Brewing Co., Wis., 178 N. W. 474.

31. Deeds-Lex Loci Sitae. So far as real estate or immovable property is concerned, the laws of the state where it is situated furnish the rules which govern its descent, alienation. and transfer, the construction, validity, and effect of conveyances thereof, and the capacity of

the parties to such contracts or conveyances, as well as their rights under the same.-Connor v. Elliot, Fla., 85 So. 164.

32. Divorce Abandonment.-Where husband and wife separated by agreement, and thereafter the husband contributed nothing to the wife's support, even during an illness following an operation, the wife is entitled to divorce for the husband's willful and intentional neglect and refusal to support her.-Stevenson v. Stevenson, Utah, 190 Pac. 776.

33. -Domicile.-A husband who went to a city in the commonwealth with intention to remain if he found conditions favorable, but without definite and fixed intention to remain and become a resident of the city at all events, did not acquire a domicile in the commonwealth.Field v. Field, Mass., 128 N. E. 9.

34. Dower-Divorce.-Under Rev. St. 1999. § 359, if a woman is divorced from her husband through the fault or misconduct of the husband, the judgment of divorce does not of itself divest her of her dower.-Arnold v. Arnold, Mo., 222 S. W. 996.

35. Easements-License.-Owner of building who for a fixed consideration granted the right to use wall for advertising purposes for a term of one year could not revoke such right prior to expiration of the year, regardless of whether the contract be treated as a lease, a license, or a simple contract to use the wall space; the right to use the wall being not merely permissive, but a right in the nature of an easement. Thos. Cusack Co. v. Myers, Iowa, 178 N. W. 401.

36. -Way Appurtenant.--Whether a right of way created by indenture was for the benefit solely of the occupants of dwelling houses to be erected, to end when houses were demolished, or was an absolute grant of a way appurtenant to land on which houses stand, depends on intention of parties, as found in words used to express meaning, as applied to subject-matter. -Nash v. Elliot Street Garage Co., Mass., 128 N. E. 10.

37. Equity-Benefit from Wrong.-No person shall be allowed to reap the benefits arising from his own wrongful acts.-Taff v. Smith, S. C., 103 S. E. 551.

38.Unliquidated Damages.-A demand for urliquidated damages for breach of contract is not cognizable in chancery.-Rosenberg v. Century-Plainfield Tire Co., et al., N. J., 110 Atl. 516. 39. Estoppel--Abandonment.-"Waiver" is the intentional abandonment of a known right, not a mere trick to catch one napping.-McKee v. McGhee, S. C., 103 S. E. 508.

40.After

Acquired Title.-Where a life tenant conveyed land by warranty deed, afteracquired title which descended on the life tenant upon death of the remainderman passed under the deed by operation of law.-Sorrell v. Bradshaw, Mo., 222 S. W. 1024.

41.-Waiver.-A waiver, to operate as an estoppel, must arise from conduct evidencing both knowledge and an intention to waive the right in question, and the party against whom an estoppel is sought must by his conduct have caused the party who invokes the estoppel to have acted to his prejudice.-Cary v. Northwestern Mut. Life Ins. Co., Va.. 103 S. E. 580.

42. Exchange of Property Inadequacy of Consideration.-Gross inadequacy of consideration, while not itself sufficient to justify rescission of a contract for the exchange of land, is evidence of fraud.-Rhodes v. Uhl, Iowa, 178 N. W. 394.

43. Frauds, Statute of-Oral Agreement.-An oral agreement for arbitration and oral award to settle controversy as to natural course of surface water did not involve the question of title or interest in real estate, and is not void under the statute of frauds.--Maxson v. Cress, Iowa, 178 N. W. 379.

44. Fraudulent Conveyances-Stock in Trade. -Civ. Code 1912, § 2434, which undertakes to regulate the sale of an entire stock in trade, refers to the sale of merchandise by a merchant, and does not apply to a sale of mules