"SECTARIAN INSTRUCTION

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CONSTITUTIONAL LAW BIBLE READING IN SCHOOLS. A teacher during school hours read from the Bible and led in prayer and hymn singing. Held, that such exercises violate the provision of the state constitution prohibiting sectarian instruction” in public schools, and also the provision that "No person shall be compelled to attend or support any place of worship." State v. Scheve, 91 N. W. Rep. 846 (Neb.).

This decision, the first under the Nebraska constitution, is in accord with the case nearest in point. State v. District Board, etc., 76 Wis. 177; but see Pfeiffer v. Board of Education, 118 Mich. 560; Donahoe v. Richards, 38 Me. 379. The exclusion of the Bible as a book of religion from schools may be unfortunate, but is apparently required by the prohibition of "sectarian instruction." Reading from the Bible without exposition and in the King James version is an offense to Catholics as well as to Jews. The protests of these and smaller bodies, and the assertion of Protestants that the Bible is their most effective weapon, combine to support the decision. The framers of the constitution may not have considered the Bible" sectarian," but their intention should govern only the sense in which the word is used, not the application to particular books and teachings under different conditions. The manifold differences in doctrine, even ignoring scattering extremists, seem to make "sectarian" nearly equivalent to religious." The further holding that the exercises described constituted the school a "place of worship" seems clearly unjustified, and would prevent religious exercises in all state institutions. See Moore v. Monroe, 64 Ia. 367; and cases cited supra.

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EQUITY CANCELLATION OF VOID NOTE - ADEQUATE DEFENSE AT LAW. Under the Rev. St. of Illinois, 1899, c. 98, § 10, fraud exercised in obtaining the execution of a note may be pleaded in bar against all holders. The plaintiff's bill prayed for cancellation of such a note, alleging as an additional fact that attached to it was a power of attorney authorizing confession of judgment. Held, that on the ground of an adequate defense at law the bill will be dismissed. Vanatta v. Lindley, 64 N. E. Rep. 735 (Ill).

The same question frequently arises in cases of forged instruments, or of notes paid at maturity but not surrendered. The view of the principal case, following Black v. Miller, 173 Ill. 489, has some support. Winchester, etc., Co. v. Morse, etc., Co., 33 Fed. Rep. 170; see Lewis v. Tobias, 10 Cal. 574. The weight of authority is, however, contra. Fuller v. Percival, 126 Mass. 381; Cooper v. Joel, 27 Beav. 313. The simple and convincing ground underlying the latter decisions is that an instrument, though void, may be a source of subsequent vexatious litigation; and that the defense thereto, especially when affirmative, may be difficult to establish after lapse of time. It would seem, therefore, that equity jurisdiction should be exercised quia timet. See Metler's Adm. v. Metler, 18 N. J. Eq. 270, 273. In the principal case this ground may be urged with peculiar force because of the power of attorney authorizing confession of judgment. Where, on the other hand, an instrument is void on its face, there would in general be no reason for equitable relief. Simpson v. Lord Howden, 3 Myl. & C. 97; Briggs v. Johnson, 71 Me. 235. So also, if an action at law on the void instrument is already pending in the domestic courts, it would seem reasonable, in the absence of special circumstances, not to remove the case to a court of equity. See McLin v. Marshall, Heisk. (Tenn.) 678; Butler v. Durham, 2 Ga. 413, 425.

EQUITY INJUNCTION - CONTRACT TO EMPLOY ONLY MEMBERS OF PARTICULAR LABOR UNION.-A contractor agreed to employ members of a labor union, and no others, upon all his stone work of a certain character. The union prayed an injunc tion to restrain the contractor from breaking his agreement not to employ others. Held, that the injunction will not lie, as there is an adequate remedy at law. Stone, etc., Union v. Russell, 38 N. Y. Misc. 513. See NOTES, p. 215.

EVIDENCE-DYING DECLARATION PARTIALLY INCOMPETENT. - Upon trial of the defendant for homicide, a dying declaration made by the deceased was admitted in evidence. A part of this declaration would, if standing alone, have been inadmissible because it did not relate to the immediate circumstances of the killing. Held, that the whole declaration is properly admitted, subject to appropriate instructions to the jury by the court State v. Carter, 107 La. 792.

Dying declarations, although hearsay, are admissible in a single class of cases, prosecutions for homicide, where the declaration was made by the deceased in fear of death and concerning the circumstances of the killing. The King v. Woodcock Case, Leach, 3d ed. 563; I GREENL. Ev. 16th ed., §§ 156, 156 a Cf. People v. Davis, 56 N. Y. 95. Such declarations were formerly admitted more freely and sometimes even in civil Wright d. Clymer v. Littler, 3 Burr. 1244, 1255; SWIFT, Ev. 125. The modern

cases.

narrowing of the doctrine appears to indicate doubt on the part of the courts as to the credibility of such declarations and as to the practical expediency of allowing them to come before juries. The decision in the principal case is apparently at variance with the modern policy, since a jury, in spite of instructions, might often be influenced by the part of the declaration which is in itself incompetent. It would seem that the court might well entirely exclude such portions of the declaration, due care being had, of course, not to alter the meaning which the remainder bore in its original conThe weight of authority also seems to support such a course. Terrell v. Com., 13 Bush. (Ky.) 246; State v. Wilson, 121 Mo. 434.

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EVIDENCE-SELF-INCRIMINATION PRODUCTION OF BOOKS BY BANKRUPT. A bankrupt on involuntary petition refused to file schedules and turn over books of account according to order of the bankruptcy court, alleging that their contents would tend to incriminate him. He was at the time under indictment in a state court for grand larceny. Held, that since it does not clearly appear that the evidence would not be incriminating, the bankrupt's refusal to furnish it does not render him punishable for contempt. In re Kanter et al., 117 Fed. Rep. 356 (Dist. Ct., S. D. N. Y.). For a discussion of the question involved, see 13 HARV. L. REV. 296; 14 ibid. 461.

INSURANCE STANDARD POLICY - AVOIDED by Clause Regarding REPAIRS. — An insurance policy contained the provision that it should be void if mechanics should be employed in building, repairing, or altering the premises for more than fifteen consecutive days without the consent of the insurance company. Mechanics had been working on the building for the twenty-four days immediately preceding_the_fire. Held, that the policy was thereby avoided. German Ins. Co. v. Hearne, 117 Fed. Rep.

289 (C. C. A., Third Circ.).

The case is of interest because it is apparently the first time that a court has passed upon the clause in question. Although comparatively modern, this clause is very general, having been inserted in the statutory form of policy of many of the states. See Smith v. German Ins. Co., 107 Mich. 270, 271; Mechanics' Ins. Co. v. Hodge, 149 III. 298, 305; RICHARDS, INS., pp. 584, 585. Hence the condition would appear to be generally considered a reasonable one; and, as its terms are clear and not open to reasonable misinterpretation, the principal case would seem to be correct in construing the clause strictly. See Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 463. Formerly the more common form of the condition seems to have been that any repairs without the written consent of the company should render the policy void; but this was generally construed by the courts as not including small repairs or such as did not increase the risk. Summerfield v. Phenix Assur. Co., 65 Fed. Rep. 292; James v. Lycoming Ins. Co., 13 Fed. Cas. 7, 182. A similar construction has been applied to the vacancy clauses. Worley v. State Ins. Co., 91 Ia. 150; Dennison v. Phanix Ins. Co., 52 la 457. While there is no exactly analogous decision, those most nearly in point would seem to support the principal case. Newport Imp. Co. v. Home Ins. Co., 163 N. Y. 237.

INSURANCE WAIVER OF CONDITION. In a suit on an insurance policy the company set up as a defense the breach of a condition that proof of loss be furnished within sixty days. To establish a waiver the insurer replied that the company in its refusal to pay did not give the breach of condition as a reason therefor, but stated another ground. The company demurred. Held, that the demurrer must be sustained. Germania Ins. Co. v. Pitcher, 64 N. E. Rep. 921 (Ind., Sup. Ct.). See NOTES, p. 217.

INTERNATIONAL LAW-STATUS OF CUBA DURING UNITED STATES MILITARY OCCUPATION. — A murder was committed on a vessel sailing under a registry issued at Havana by the American military government. Held, that the United States courts have no jurisdiction over the offence, since the vessel was an extension of a "foreign country. United States v. Assia, 28 N. Y. L. J. 433 (Circ. Ct., E. D. N. Y.). See NOTES, p. 213.

LEGISLATIVE CONTROL

MUNICIPAL CORPORATIONS INTERFERENCE WITH CONTRACT RIGHTS. — A city, in granting the use of its streets to a street railway com. pany, had imposed on the company the obligation of paving between its tracks. A subsequent state statute released this obligation and substituted a money payment equal to the cost of the paving. Held, that this statute is not unconstitutional as impairing the obligation of a contract. City of Springfield v. Springfield St. Ry. Co., 64 N. E. Rep. 577 (Mass.). See NOTES, p. 211.

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PROPERTY - ADVERSE POSSESSION EFFECT OF TENANT'S ADMISSIONS. mortgagee of land to which the mortgagor had had no title foreclosed his mortgage,

but took possession only through a tenant who entered under a verbal agreement to purchase. The tenant held for twenty years without carrying out this agreement, and during that time freely admitted to all the world that the plaintiff was in fact the true owner. Subsequently, the mortgagee conveyed to the defendant. Held, that the statements of the tenant are admissible in evidence in a suit by the plaintiff for the recovery of the land. Walsh v. Wheelwright, 96 Me. 174. See NOTES, p. 216.

PROPERTY ADVERSE POSSESSION — INTERRUPTION BY VIS MAJOR. The defendants took adverse possession of lands owned by the plaintiffs. Before the expiration of the statutory period for obtaining title by adverse possession the lands were submerged by a river. After the completion of the statutory period the lands formed again. The defendants regained possession. Held, that the adverse possession of the defendants was terminated by the submergence of the lands, the constructive possession then reverting to the plaintiffs. Sec'y of State v. Krishnamoni Gupta, 4 Bom. L. R. 537 (Eng., P. C.).

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The case is peculiar in that during the latter part of the statutory period neither claimant had actual possession of the land, although the disseisor's abandonment was involuntary. But the rule of law appears to be strict in requiring that to acquire title by adverse possession the disseisor must have an actual and continuous possession. Ward v. Cochran, 150 U. S. 597; Agency Co. v. Short, L. R. 13 App. Cas. 793. structive possession cannot here avail the defendant, as he had not color of title to the whole coupled with an actual possession of a part. See Bailey v. Carleton, 12 N. H. 9. Nor is it material that the break in the continuity of the defendant's possession is due to an abandonment compelled by outside causes. See Holliday v. Cromwell, 37 Tex. 437. But such compulsory abandonment must be of more than a temporary duration. McColgan v. Langford, 6 Lea (Tenn.) 108, 116. On facts very similar to those in the principal case it was recently held that the running of the statutory period was at least suspended. Western v. Flanagan, 120 Mo. 61.

PROPERTY AGISTER'S LIEN-SURRENDER OF POSSESSION. - The plaintiff had possession of certain cattle on which he held an agister's lien by statute. The defendants demanded possession by virtue of a subsequent chattel mortgage granted while the cattle were in the plaintiff's possession, and threatened to take them by force if necessary. The plaintiff, though asserting his lien, surrendered the cattle to the defendant. Held, that the plaintiff has not lost his lien and can replevy the cattle. Becker v. Brown, 91 N. W. Rep. 178 (Neb.).

At common law any voluntary surrender of possession destroyed the lien. Jacobs v. Latour, 2 M. & P. 201. How far statutory liens, now so general, are dependent upon the retention of possession by the lienor is a matter of dispute. In certain cases, for example, the landlord's lien on his tenant's crops, possession by the lienor is impossible. Beall v. White, 94 U. S. 382. So also where an absolute retention of possession would be inconsistent with the purposes of the bailment it is not required. Smith v. Marden, 60 N. H. 509; Young v. Kimball, 23 Pa. St. 193. But such possession as is not inconsistent must be retained. Thus the surrender of possession for an unnecessarily long period is held fatal. Papineau v. Wentworth, 136 Mass. 543. And as against an innocent mortgagee or purchaser of a horse while out of the possession of the livery stable keeper, the lien is also lost. Marseilles Mfg. Co. v. Morgan, 12 Neb. 66; Vinal v. Spofford, 139 Mass. 126, 130. But in the principal case absolute retention of possession was not inconsistent with the purposes of the bailment; and the statutes being in derogation of the common law should be strictly construed. See Stone v. Kelley, 59 Mo. App. 214, 218; Robinson v. Kaplan, 21 N. Y. Misc. 686, 688. It would seem therefore that the plaintiff waived his lien unless the surrender of possession can be considered involuntary, as the court suggested. See Allen v. Spencer, 1 Edm. Sel. Cas. (N. Y.) 117.

PROPERTY - COVENANTS OF TITLE - RESCISSION FOR BREACH WHEN GRANTOR IS INSOLVENT. The defendant by deed containing the usual covenants of seisin and of warranty, purported to convey an estate in fee simple to the plaintiff. The defendant had in fact only a life estate. Later he became insolvent. Held, that the plaintiff is entitled to a decree rescinding the contract. Matthews v. Crowder, 69 S. W. Rep. 779 (Tenn.).

The court rests its decision on the co-existence of insolvency and an assumed breach of the covenant of warranty. Ordinarily, however, this covenant is held to be broken only when the grantee or his assignee has been lawfully evicted. Bedeloe v. Wadsworth, 21 Wend. (N. Y.) 120; see Smith v. Jones, 97 Ky. 670, contra. The few dissenting jurisdictions, of which Tennessee is not one, hold that the covenant of warranty represents and contains all the covenants for title. Since, under the general rule, there would have been no remedy at law in the principal case, there would seem to be no

basis for rescission. RAWLE, Covenants for TITLE, 5th ed., § 381. A second ground of decision, and upon this the case may be supported, is that the breach of the covenant of seisin and the defendant's insolvency are sufficient to support the plaintiff's bill. This covenant is usually regarded as an assurance of the right to convey the very estate described in the deed, and is therefore broken when made, if at all. See Greenby v. Wilcocks, 2 Johns. (N. Y.) 1. The subject-matter being land, the grantee may pursue his appropriate equitable remedy of rescission, if the grantor is insolvent. Ingram v. Morgan, 4 Humph. (Tenn.) 66.

PROPERTY - EXCEPTION BY LATER ELECTION. The plaintiff by deed conveyed land to B in fee, to the use of B, excepting a road not less than forty feet in width, to be built from a certain point to the nearest road which should be constructed by B or his assignee. Held, that the exception is inoperative. Savill Bros., Ltd. v. Bethell, [1902] 2 Ch. 523 (C. A.).

The principal case establishes the rule in England that land excepted must be defined at the time of the execution of the deed. A dictum in accord is contained in Pearce v. Watts, L. R. 20 Eq. 492. Some American cases, however, permit the land excepted to be defined by the subsequent choice of either party. Ex parte Branch, 72 N. C. 106. A part of the whole parcel conveyed can be saved to the grantor by exception only, and not by reservation. Douglas v. Lock, 2 A. & E. 705. Accordingly, if the part excepted is to be defined at a future time, title to the whole must, until that time, remain in the grantor. This is possible only where the conveyance operates under the Statute of Uses. The retention of title is also contrary to the intention of the parties. By a sacrifice of principle some American courts have, as in reservation, given the grantee title to the whole at once. Dygert v. Matthews, 11 Wend. (N. Y.) 35. If the technical distinction between exception and reservation be disregarded, the exception by an election subsequent to the deed finds support in the general American doctrine that monuments erected after the conveyance control boundaries set by the deed. Knowles v. Toothaker, 58 Me. 172. Since in the principal case the conveyance operated at common law, the decision is clearly correct. It has, in addition, the practical advantage over the American rule that a final description of the land granted is found in the deed itself.

PROPERTY - LEASE OF WATER PRIVILEGE- ASSIGNEE'S LIABILITY FOR Rent. - By a contract in the form of a lease the plaintiff granted to B for a term of years the privilege of drawing from a certain canal sufficient water to fill B's pond during the ice-gathering season, the latter covenanting to pay a certain annual rent. B assigned his rights to the defendant. Held, that the transaction constitutes a lease, and that the defendant as assignee of the lessee is liable for the rent. Jordan v. Water Co., 64 N. E. Rep. 680 (Ind., Sup. Ct.).

This decision is noticeable as a recognition of leases of incorporeal interests in land. Though the authorities, especially in America, are comparatively few, such leases have been recognized from early times. See Bally v. Wells, 3 Wils. 25; Smith v. Simons, 1 Root (Conn.) 318; WOODFALL, LANDLORD AND TENANT, 15th Eng. ed., 86-90. The case appears, also, to be the first American decision applying to leases of incorporeal interests the general rule that the assignee of a lessee is liable for the performance of the lessee's covenants. Whereas covenants running for or against land held in fee depend on the common law, the above rule as to covenants in leases was definitely established in England by the St. 32 Hen. VIII. c. 34; and in almost all the American states the provisions of that statute have in effect been re-enacted, or adopted as part of their common law. See SIMS, COVENANTS, 71-77. In England there appears to have been at first some doubt whether this statute applied to leases of incorporeal interests. See Bally v. Wells, supra, 26-33. It would seem, however, that by its very terms such cases are included; and in later decisions it has been so held. Martyn v. Williams, 1 H. & N. 817; see Bally v. Wells, supra; Norval v. Pascoe, 34 L. J. Ch. 82. Provisions similar to those of the English statute are in force in Indiana as common law. Dawson v. Coffman, 28 Ind. 220: Carley v. Lewis, 24 Ind. 23. The decision holding the assignee liable seems, therefore, sound.

PROPERTY LIS PENDENS APPLICATION TO PERSONALTY. The plaintiff brought suit to foreclose a mortgage on the stock-in-trade and debts of A. B. While the suit was pending the mortgagor was adjudged insolvent; and the assignee was not made a party. After the plaintiff had obtained his decree, a debtor of the insolvent paid his debt to the assignee. The plaintiff applied for an order that the assignee should pay over the sum received in execution of the decree. Held, that the order shall not be made. Mudalier v. Ayyangar, 25 India L. R. (Mad. Ser.). 406. That the doctrine of lis pendens does not apply to personal property, other than

chattels real, is now settled law in England. Wigram v. Buckley, [1894] 3 Ch. 483. But the reasons for applying the doctrine to cases of realty exist also in suits concerning personalty. Indeed, in the latter case the danger of defeating the decree of the court by transfer pendente lite is even greater. These reasons, however, seem to be outweighed by other considerations of policy. Of personalty, unlike real estate, the chief indication of title is possession; and to hold that bona fide purchasers should not be protected would be to run the danger of impairing the freedom of commercial transactions. On this reasoning the American courts unanimously refuse to apply the doctrine of lis pendens to cases of negotiable instruments. Warren v. Marcy, 97 U. S. 96. But the weight of authority is against extending the exception to include other kinds of personal property. Carr v. Lewis Coal Co., 15 Mo. Ap. 551; Thoms v. Southard, 2 Dana (Ky.) 475. See contra, Chase v. Searles, 45 N. H. 511. The decision in the principal case was also rested upon the ground that the doctrine of lis pendens could not affect the assignee, since he is an involuntary transferee. This also is contrary to the weight of American authority. See BENNETT, Lis PendenS, § 226.

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PROPERTY-PROTECTION NEWS PUBLICATION "TICKER." The plaintiffs collected news by their telegraphic system and transmitted it to their tickers which were placed in brokers' offices, saloons, and hotels. The defendants appropriated such news from the plaintiffs' tickers and transmitted it to the tickers of their own customers. Held, that equity will restrain the defendants from publishing news thus obtained. National, etc., Co. v. Western, etc., Co., 25 Nat. Corp. Rep. 352 (C. C. A., Seventh Circ., Oct., 1902).

The law recognizes and protects a property right in unpublished original "literary property," commonly including in the term artistic productions, knowledge, and news. Palmer v. De Witt, 47 N. Y. 532; Rees v. Peltzer, 75 Ill. 475. But after there has been an unqualified dedication to the public the only protection is by copyright. Potter v. McPherson, 21 Hun (N. Y.) 559. On the one hand the delivery of a lecture or the presentation of a play is not generally a sufficient publication. Abernethy v. Hutchinson, 1 Hall & T. 28. On the other, printing a book for public sale is so held. Potter v. McPherson, supra. No valid distinction between these cases apparently can be based on any difference of intention in the publication, or on any implied contract with the recipients, except perhaps in cases of publication to private subscribers. See Kiernan v. Manhattan, etc., Co., 50 How. Prac. (N. Y.) 194. Nor will general accessibility prove a satisfactory test. It is suggested that a better distinction is whether the publication had been given out in so tangible a form that the public might generally possess the copies. See Tribune Co. of Chicago v. Assoc. Press, 116 Fed. Rep. 126. This would include in the protected class the principal case, which seems not to extend the law, but merely to apply it to a novel state of facts. But see Kiernan v. Manhattan, etc., Co., supra.

PROPERTY - REVOCATION OF PAROL LICENSE LICENSEE IN STATU QUO. The plaintiff acting on a parol license constructed a ditch across the defendant's land; and upon the defendant tearing up part of it recovered damages for the entire cost of construction of the ditch. Held, that the plaintiff cannot by injunction compel the defendant to allow him to repair the ditch. Oster v. Broe, 64 N. E. Rep 918 (Ind., Sup. Ct.). The weight of authority holds that a parol license to do an act on the land of the licensor is revocable even when the licensee has incurred expense on the faith of such license. Hodgkins v. Farrington, 150 Mass. 19; St. Louis, etc., Yards v. Wiggins, etc., Co., 112 Ill. 384. But in several of the states the more equitable doctrine prevails, that under such circumstances the license becomes irrevocable. Wilson v. Chalfant, 15 Ohio, 248; Hodgson v. Jeffries, 52 Ind. 334. The basis of this latter view is well illustrated by the principal case. When the licensee has recovered his expenditure, the parties stand in the same position as before the license was executed, and there is, therefore, no injustice in allowing the licensor to revoke. The point has been touched on before, but seems never to have been directly decided. See Ameriscoggin Bridge v. Bragg, 11 N. H. 102; Lane v. Miller, 27 Ind. 534. Two closely analogous decisions have been rendered to the effect that a license to erect a structure on the land of the licensor, though executed may be revoked if the structure has been destroyed. Veghte v. Raritan, etc., Co., 19 N. J. Éq. 143; Allen v. Fiske, 42 Vt. 462. On principle the cases seem to be identical.

SALES FRAUD OF AGENT - ESTOPPEL. - The plaintiff authorized a dock com. pany to deliver the plaintiff's lumber to the orders of one C., the plaintiff's clerk, who had a limited authority to make sales. C fraudulently obtained transfers into the name of B., a fictitious person, and then in the character of B. sold the lumber to the defendant, who took without notice of the fraud. The plaintiff brings an action for