vendor granted his land bordering on the eastern line of this tract to the lessor of the plaintiff. The defendant entered without constructing a fence, and began to build a railroad. The plaintiff brought action to recover the value of a cow which had been killed owing to the defendant's failure to fence. Held, that the condition to fence is a covenant running with the land and that the plaintiff is entitled to recover. Indianapolis, etc., Co. v. Harbaugh, 78 N. E. Rep. 80 (Ind., App. Ct.).

Oral agreements will not be construed as covenants running with the land. Morss v. Boston, etc., Co., 2 Cush. (Mass.) 536. And an unsealed written contract to fence has been held to bind only the parties to it. Vandegrift v. Delaware R. R. Co., 2 Houst. (Del.) 287. But stipulations in deeds poll not signed by the grantees are held binding on future grantees. Post v. West Shore R. R. Co., 50 Hun (N. Y.) 301; contra, Pearson v. Bailey, 177 Mass. 318. And it is not fatal that the covenant is not mentioned in the deed, if it is part of the same transaction. Hills v. Miller, 3 Paige (N. Y.) 254. But in all these cases there was a grant from the covenantee to the covenantor, creating a privity of estate. Without privity of estate there can be no covenant running with the land. Hurd v. Curtis, 19 Pick. (Mass.) 459. In the present case there is neither a covenant in the true sense, since the writing was unsealed, nor has there been any conveyance between the covenantee and the covenantor so as to create privity of estate. It is difficult to perceive any grounds upon which to support the decision. Cf. Moxley v. New Jersey, etc., Co., 21 N. Y. Supp. 347.

CRIMINAL LAW - TRIAL ABSENCE OF ACCUSED THROUGH MISCONDUCT. The defendant, indicted for a misdemeanor, when brought into court to plead so misconducted herself that it was impossible to take her plea. She was twice removed and informed that if she persisted in her misbehavior she would be tried in her absence. A plea of not guilty was entered for her in her absence. The jail surgeon, being summoned, said that the defendant was quite sane and capable of understanding the nature of the charge and proceedings against her. The defendant was then tried, convicted and sentenced in her absence. Held, that such procedure is valid. Rex v. Mary Browne, 70 J. P. 472 (Eng., Cent. Crim. Ct., Sept. 14, 1906).

A defendant indicted for a misdemeanor punishable by imprisonment, as in the principal case, is entitled to plead in person at his arraignment and to be present throughout his trial. Rose v. State, 20 Oh. St. 31; see BISHOP, New CRIM. PROCEDURE, § 268. But if it is impossible for him to be brought into court because of insanity, or if he misbehave so as to stop proceedings, he loses his right to be present, and the arraignment and trial may be conducted in his absence. United States v. Davis, 6 Blatchf. (U. S.) 464. Though the principal case is sound on this latter point, it is objectionable because of the way in which the plea was entered. In cases where the defendant stands mute on arraignment, as did the defendant in the present case, the correct procedure at common law is for the court to empanel a jury to determine whether the accused stands mute through malice or by act of God. Reg. v. Israel, 2 Cox C. C. 263. If the former is found to be true, then, under the English Statute of 7 and 8 Geo. IV, c. 28, § 2, the judge may enter a plea of not guilty. The entering of such a plea before such a determination by the jury was clearly unwarranted.

DAMAGES MEASURE OF DAMAGES GOOD WILL. - The plaintiff sued the defendant for fraudulently inducing him to sell stock in an unlisted corporation at an inadequate price. Held, that the good will of the corporation is an element to be considered in estimating the damages, and that the value of such good will can fairly be estimated by multiplying the average annual net profits by a number of years suitable with reference to the particular business; the determination of such number of years to be submitted to the jury as a question of fact. Von Au v. Magenheimer, 100 N. Y. Supp. 659.

This seems to be the first case to lay down any general rule for the valuation of good will. Cf. Mellersh v. Keen, 28 Beav. 453; Page v. Ratliffe, 75 L. T. R. 371. From one American case it seems a necessary inference that the good will of a

listed corporation is the difference between the amount actually invested and the market price of the stock. Adams Express Co. v. Kentucky, 166 U. S. 171. But this rule is not applicable to unlisted stock. The rule in the case at hand is equally useless. The jury being allowed to use as a multiplier any number of years not inconsistent with the character of the business, is in no better position than if simply instructed to assess the good will. A simple and definite rule would be to deduct from the net annual profits such proportion as might be a reasonable return on the capital invested, considering the nature of the business, and then capitalize the remaining profits at a rate of interest conformable to the risks of the business. However, since this is essentially a question of fact, it may be doubted whether the court should attempt to lay down any rule at all.

DAMAGES MEASURE OF DAMAGES IMPROVEMENTS TO CONVERTED PROPERTY. The defendant cut timber from the plaintiff's land under a bona fide belief that the land was the defendant's. The plaintiff waited until the defendant had considerably increased the value of the timber and then exercised his right under the statutory action of replevin to recover damages instead of the property itself. Held, that the measure of damages is the enhanced value of the property, less any increase added by the defendant after conversion. Gustin v. Embury Clark Lumber Co., 108 N. W. Rep. 650 (Mich.). See NOTES, p. 227.

EASEMENTS MODES OF ACQUISITION IMPLIED GRANT OF RIGHT OF WAY. A testator built four houses with a passage at the back to connect them with the street. There was also access from the front. The houses were devised without any mention of a right of way. Held, that a right of way will be implied in favor of the devisees and their successors in title. Milner's Safe Co. v. Great Northern & City Ry. Co., 95 L. T. R. 321 (Eng., Ch. D., July 17, 1906). Where there has been an apparent and continuous use of an estate retained in favor of an estate conveyed away, such use will ordinarily be held to pass to the grantee under the doctrine of an implied grant, when no mention is made of it in the deed. Ellis v. Bassett, 128 Ind. 118. Many jurisdictions, however, distinguish in the case of a right of way on the ground that the use, since it requires the intervention of human agency, cannot be continuous. Morgan v. Meuth, 60 Mich. 238. Such a distinction seems arbitrary. The real considerations should be whether the use is apparent, and was intended as a permanent benefit for the part conveyed away. Baker v. Rice, 56 Oh. St. 463. Judged by these requisites the decision in the principal case is sound. The result is surely desirable, and is in accord with the weight of authority in England. Brown v. Alabaster, 37 Ch. D. 490; contra, Thomson v. Waterlow, L. R. 6 Eq. 36. In this country the tendency of the decisions is in the opposite direction, the idea being that the doctrine of implied grant is against the spirit of our registry laws. Whiting v. Gaylord, 66 Conn. 337. But this reasoning applies to all classes of easements as well as to rights of way.

EQUITY PRIORITY OF EQUITIES — RIGHT OF DEFRAUDED JUDGMENT DEBTOR AGAINST BONA FIDE PAYEE OF JUDGMENT PROCEEDS. The beneficiary of an insurance policy obtained a judgment thereon by fraud, the amount of which was paid into court. By order of the fraudulent judgment creditor the clerk of court paid a portion of this very money to the defendants, who took in good faith and for value. The judgment debtor, having discovered the fraud, filed a bill in equity to restrain the defendants from setting up the fraudulent judgment, and to compel repayment of the money received thereunder. Held, that, even though the judgment be fraudulent, the equities of the plaintiff and defendants are equal, and hence the latter, in whom is the legal title, prevail. Two justices dissented. Fidelity Mutual Life Ins. Co. v. Clark, U. S. Sup. Ct., Oct. 29, 1906.

Where a plaintiff, upon the ground of an alleged equity, proceeds against one who has the legal title, he must show as the gist of the action, whether it be quasi-contractual or in equity, that it is against good conscience for the de

fendant to retain the res.

Haven v. Foster, 9 Pick. (Mass.) 112; Dean v. Anderson, 34 N. J. Eq. 496. If the defendant received the legal title in good faith, but without giving value, it is unjust that he should make a profit at the plaintiff's expense. Haven v. Foster, supra. If the defendant received the legal title with notice of the plaintiff's equity, his conscience is charged with that equity, even though he gave value. Mackreth v. Symmons, 15 Ves. 329. If, however, the defendant took title for value and without notice, the plaintiff cannot prevail. Cave v. Cave, 15 Ch. D. 639. In such a case, since the equities of both parties are equal, the court refrains from interference, leaving the loss where it has fallen. Price v. Neal, 3 Burr. 1354. In the case at hand the title to the money passed to the judgment creditor, and from her to the defendants for value and without notice. The plaintiff, therefore, shows no ground for relief.

ESTOPPEL ESTOPPEL IN PAIS- OBJECTION TO COURT'S JURISDICTION.— The defendant in a suit in equity filed a cross-bill asking for affirmative relief, which was granted. The plaintiff appealed, and the defendant urged that the bill should be dismissed because the court did not have jurisdiction on account of the smallness of the amount involved. Held, that the defendant is estopped from setting up the court's lack of jurisdiction. Champion v. Grand Rapids, etc., Ry. Co., 108 N. W. Rep. 1078 (Mich.).

Extending the court's jurisdiction by estoppel in such instances would seem to be incorrect. See 20 HARV. L. REV. 150.

FEDERAL COUrts — JurisdicTION BASED ON NATURE OF SUBJECTMATTER - FEDERAL JURISDICTION UNDer War AmeNDMENTS. — § 5508 of the United States Revised Statutes prohibits conspiracy to intimidate any citizen in the free exercise of any right secured by the Constitution or laws of the United States. Under this statute the plaintiffs in error were indicted for coercing certain negroes into abandoning their contracts. Held, that the indictment is demurrable, as the federal courts have no jurisdiction of the wrong charged. Hodges v. United States, 27 Sup. Ct. Rep. 6.

The dissenting opinion suggests that the case may involve a decision that $ 5508 of the Revised Statutes is unconstitutional. Though the court does not clearly specify its ground of decision, it is obvious that the alternative view, that the case is not within the statute, is the true basis of the holding of the court. The constitutionality of the statute itself is beyond doubt. Ex parte Yarbrough, 110 U. S. 651. The real problem which the case presents, then, is whether the right in question here is a right secured by the Constitution or laws of the United States. If it be so secured, it is admittedly so only under the Thirteenth Amendment, — the Fourteenth referring only to state acts. It has been held in elaborate circuit court opinions that the Thirteenth Amendment forbidding slavery protects rights similar to those involved here, on the ground that the infringement of such rights is the imposition of a badge" or incident of slavery. United States v. Rhodes, 1 Abb. (U. S.) 28; United States v. Morris, 125 Fed. Rep. 322. The present case apparently overrules these cases, and at least checks their tendency toward perhaps a strained construction of the Thirteenth Amendment. Cf. United States v. Harris, 106 U. S. 629.

RIGHT OF APPEAL

66

HABEAS CORPUS PROCEEDINGS BETWEEN CLAIMANTS FOR CUSTODY OF CHILD. - In habeas corpus proceedings the plaintiff had been ordered to give up the possession of a child and had moved for a new trial. The defendant judge having refused to consider the motion, the plaintiff applied to the Supreme Court for a writ of mandamus to compel the defendant to pass upon it. Held, that the mandamus may issue since the judgment is appealable. Bleakley v. Smart, Judge, 87 Pac. Rep. 76 (Kan.).

Generally, except by statute, a judgment in habeas corpus is neither res judicata nor subject to review. Skinner v. Sedgbur, 8 Kan. App. 624; contra, State ex rel. McCaslin v. Smith, 65 Wis. 93. An exception to this rule is generally made when the petition concerns the custody of an infant. People ex rel. Green v. The Court of Appeals, 27 Colo. 405; contra, Mathews v. Hobbs,

51 Ala. 210. In such a case the alleged restraint may be illegal, either because it deprives the child of liberty or because it is imposed by one not legally entitled to the child's custody. Logically, in habeas corpus the latter wrong should be considered only as it is presumed to affect the former. See The State ex rel. Baird v. Baird and Torrey, 19 N. J. Eq. 481. Practically this distinction is so difficult to make that habeas corpus becomes a means of settling the claims of parents and guardians generally. Cormack v. Marshall, 211 Ill. 519. Since the proceedings have assumed this character, the present case seems right in holding the judgment reviewable, because the real liberty of the child is sufficiently protected by allowing a new writ upon any change of circumstances which might be presumed to restrain the child's liberty. In re King, 66 Kan. 695.

INFANTS

AGE.

- CONTRACTS EFFECT OF FALSE REPRESENTATIONS AS TO The defendant, an infant, executed a trust deed to the plaintiff as part consideration for the sale of a livery business. The defendant appeared over twenty-one years old and expressly stated that he was of age. Held, that on account of the fraud the infant cannot set up his age as a defense in an action to enforce the deed of trust. Commander v. Brazil, 41 So. Rep. 497 (Miss.). While this case is in line with previous Mississippi decisions, and though it may reach an individually just result, it is against the great weight of authority and is clearly wrong, being contrary to the policy and principles underlying the voidability of infants' contracts. Wieland v. Kobick, 110 Ill. 16. In England a claim against an infant like that in the principal case will not support a petition in bankruptcy, because it is not a debt. Ex parte Jones, 18 Ch. D. 109. Nor is fraud there a good replication either in law or in equity to a plea of infancy. Bartlett v. Wells, 1 B. & S. 836. The doctrine of the principal case has been adopted by statute in Iowa and Kansas. But there is no real need of it, since the infant can be held ex delicto. Rice v. Boyer, 108 Ind. 472. Allowing this redress is not a violation of the principle that an infant will not be liable in tort where so to hold him would be merely indirectly enforcing his contract, because in such an action the contract is treated as of no effect, and the penalty assessed is not based on the contract, but on the actual loss due to the deceit. Cf. 20 HARV. L. REV. 64.

INJUNCTIONS - ACTS RESTRAINED COLLECTION OF PENALTIES UNDER ALLEGED UNCONSTITUTIONAL STATUTE. A New York statute limited the price of gas to eighty cents per thousand feet, and fixed a penalty for each overcharge by the gas company. Held, that, pending a suit to determine the constitutionality of the statute, the officers charged with the enforcement of the penalty shall be restrained from proceeding, but all charges collected in excess of that fixed shall be impounded to abide the outcome of the suit. Consolidated Gas Co. v. Mayer, 146 Fed. Rep. 150 (Circ. Ct., S. D. N. Y.).

Ordinarily equity will not interfere with criminal proceedings. But where irreparable damage would otherwise follow, the majority of the many conflicting cases will be found to hold that equity will restrain the enforcement of penalties under a statute affecting property rights which the court deems unconstitutional. Smyth v. Ames, 169 U. S. 466. A few courts, refusing to consider the constitutionality question, decline to enjoin such proceedings. Boin v. Town of Jennings, 107 La. 410. The same considerations should apply when temporary relief is asked pending the decision of constitutionality. The fact that there would be irreparable damage in spite of an ultimate decision favorable to the plaintiff should secure an injunction from equity, but on such terms as will work justice in the event of a contrary holding. This involves no presumption as to constitutionality, but is merely an equitable attempt to do justice whatever the final outcome. Equity takes this stand when relief pendente lite is sought against an alleged tort, and in other analogous cases of doubtful right. Denver, etc., R. R. Co. v. United States, 124 Fed. Rep. 156; Harriman v. Northern Securities Co., 132 Fed. Rep. 464. The decree at hand is accordingly correct on principle, and it is supported by precedent as well. New Memphis Gas & Light Co. v. City of Memphis, 72 Fed. Rep. 952.

JUDGMENTS COLLATERAL ATTACK

-

FRAUD IN OBTAINING JURISDICTION OF NECESSARY PARTY. The signature on an acknowledgment of a service of process without the state, in a divorce suit brought by a husband in Texas, was either a forgery or else obtained from the wife by fraudulent representation. A decree of divorce was granted. Held, that, in either case, such decree is no defense to a suit afterwards brought by the wife in Alabama, since jurisdiction of the wife was never acquired in the first action. Ingram v. Ingram, 42 So. Rep. 24 (Ala.).

See

If the court rendering a decree has jurisdiction, that decree is not open to collateral attack by the same parties. Nicholson v. Nicholson, 113 Ind. 131. If there was no jurisdiction, it is open to such attack in another state; for, under these circumstances, no valid decree could be given. Parish v. Parish, 32 Ga. 653; see 19 HARV. L. REV. 384. The simple question, therefore, is, did the acknowledgment of service, assuming it was fraudulently obtained, give the Texas court jurisdiction? It is hard to see why it did not. Townsend v. Smith, 47 Wis. 623, 626. The case is in no wise different, in so far as the acquisition of jurisdiction is concerned, from those cases where a defendant is brought within the limits of a state by fraud or by force, in violation of extradition rights; and it is there held, that, in spite of the method adopted, jurisdiction is nevertheless acquired. Ex parte Moyer, 85 Pac. Rep. 897 (Idaho); Mahon v. Justice, 127 U. S. 700. The fraud, though it does not prevent jurisdiction, furnishes, in the case of civil suits, a ground for directly impeaching the decree in the state which thus acquired control, or may be a valid defense to any suit seeking directly to enforce the decree in another state. Dunlap v. Cody, 31 Ia. 260.

LANDLORD AND TENANT - Terms for Years - ConveYANCE OF STANDING TIMBER. — The plaintiff sold and conveyed by deed to the defendant all the trees on a certain tract of land, provisos being inserted that the grantee should have rights of way, that the timber was to be removed within three years from a fixed date, and that all " timber remaining on the premises should revert and become the property of the plaintiff." After the expiration of the three years the plaintiff brought a warrant of forcible detainer against the defendant, under a statute which declared "the refusal of a tenant to give possession to his landlord after the expiration of his term " to be a forcible entry. Held, that the deed created a tenancy, and that therefore the writ is maintainable. Alexander v. Gardner, 96 S. W. Rep. 818 (Ky.).

The court in finding a tenancy here seems to have been unduly influenced by the consideration that this grantee could assign his rights and was therefore not a licensee. But a license coupled with an interest is irrevocable and may be assigned. Heflin v. Bingham, 56 Ala. 566. For a discussion of the principles involved, see 17 HARV. L. Rev. 411.

LEGACIES ADEMPTION - CHANGE ACCOMPLISHED BY OPERATION OF LAW. A testator bequeathed the "interest arising from money invested in the Lambeth Waterworks Co." to his daughter for life. Between the date of his will and the date of his death an Act of Parliament created a Metropolitan Water Board, and vested the undertaking of the Waterworks Co. in it. A block of Metropolitan Water Board stock was issued to the testator as compensation for the stock which at the date of his will he held in the Waterworks Co. Held, that the new stock does not pass under the bequest. Slater v. Slater, [1906] 2 Ch. 480.

Whether or not a legacy had been adeemed was originally made to depend upon the intention of the testator. It was accordingly held that a change accomplished by operation of law would not extinguish a legacy. Partridge v. Partridge, Cas. t. Talb. 226; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258. But the late English cases show clearly that the intention of the testator no longer governs, and that the specific thing bequeathed must still exist. In re Bridle, 4 C. P. D. 336. This great change is based on the Wills Act, which provides that descriptions of gifts shall refer, prima facie, to property answering that description at the time of the testator's death. See Goodlad v. Burnett, 1 Kay & J.