the public derives sufficient benefit from gas or electric lighting plants to justify a municipal bond issue for their erection. State v. City of Toledo, 48 Oh. St. 112. There would seem to be no valid distinction between furnishing electric light and furnishing electric power, yet to furnish the latter has been held not to be a public use. State v. Superior Court, 42 Wash. 660. If the benefit to the public is so slight as to be inappreciable, as where the power company has agreed to deliver almost its entire output to one individual, it would clearly be right to withhold the power of eminent domain. Brown v. Gerald, 100 Me. 351. In the absence of such circumstances, however, the better view supports the present case. Amoskeag Co. v. Worcester, 60 N. H. 522; see 15 HARV. L. REV. 399.

EMINENT DOMAIN-NATURE OF RIGHT — Independent or DERIVATIVE TITLE. The defendant conveyed to the plaintiff with a covenant of warranty against lawful claims of "all persons claiming by, through, or under me." At the time of the conveyance there existed an easement taken by eminent domain proceedings. Held, that the existence of the easement is not a breach of the covenant. Weeks v. Grace, 80 N. E. Rep. 220 (Mass.).

A title acquired by escheat or forfeiture is derivative. See 4 Kent, Comm., 427. But one conveyed by a tax sale is a new, independent title granted by the state, and not merely the sum of all outstanding claims and estates. See Hefner v. Northwestern Ins. Co., 123 U. S. 747, 751. The right to take property for public use is inherent in sovereignty, and is not dependent on constitutions, which merely qualify the right by providing for compensation. Sholl v. German Coal Co., 118 Ill. 427. The exercise of this right is an action in rem, and actual notice to the owner is unnecessary. Appleton v. City of Newton, 178 Mass. 276. A condemnation sale in admiralty, also an action in rem, conveys a new title. See Castrique v. Imrie, L. R. 4 H. L. 414, 428. It would seem to follow that taking under eminent domain is not forcing the owner to transfer his title to the state, but is exercising an independent paramount right, and results in a form of ownership irrespective of any previous title. See Emery v. Boston Terminal Co., 178 Mass. 172, 184. An exercise of the right of eminent domain subsequent to the conveyance is not a breach of even a general warranty, since all property is taken subject to the sovereign power. Bailey v. Miltenberger, 31 Pa. St. 37.

EVIDENCE-GENERAL PRINCIPLES AND RULES OF EXCLUSION ADMISSIBILITY OF TELEPHONE CONVERSATIONS. A called B's office by telephone, and upon asking for B was told that he was out. After a short time A was called to his telephone, and was told that B had returned and was ready to talk to him. A did not know B's voice. Held, that evidence of what A heard the person purporting to be B say is admissible. Godair v. Ham Nat'l Bank, 80 N. E. Rep. 407 (Ill.).

A was called to his telephone by a person who purported to be B, but did not recognize B's voice. Held, that evidence of what was said to A is admissible. Kansas City Star Co. v. Standard Warehouse Co., 99 S. W. Rep. 765 (Mo., K. C. Ct. App.).

Conversations by telephone are, as a general rule, admissible. See 20 HARV. L. REV. 156. Even when the witness does not recognize the voice of the speaker and there is no independent proof of his identity, the courts have applied this rule when the person answering the witness' call in the usual course of business purports to be the party called. Guest v. Ry. Co., 77 Mo. App. 258; Oskamp v. Gadsden, 35 Neb. 7; but see Kimbark v. Illinois, etc., Co., 103 Ill. App. 632. Business custom seems fully to justify this view. But where the witness is called to the telephone, there is nothing on which to rely save the assertion of an unknown person at an unknown place, and hence the probability of fraud is much greater. In such a case, therefore, the evidence would seem to be, not merely of little weight, but too dangerous to be submitted to a jury. This distinction is not noticed in the present Missouri case, and seems never to have been taken, though one case has been found reaching the result its recognition would bring about. Vaughn v. State, 130 Ala. 18. In the present Illinois case,

since the reply was substantially in response to the witness' call, the rule applied seems proper.

EXTRADITION INTERNATIONAL EXTRADITION EXTRADITION FOR ONE OFFENSE AND IMPRISONMENT FOR ANOTHER. The relator was accused in one indictment of conspiring to defraud the United States, and in another of procuring the admission of goods into the United States in violation of statute. He was duly convicted and sentenced on the conspiracy charge, and having been released on bail pending an appeal fled to Canada after the affirmance of his conviction. The requisition of the United States was refused. Thereupon he was demanded for the crime charged in the second indictment and was surrendered to the United States. While in the hands of an officer he was arrested on a warrant sworn out on the conspiracy charge, and was imprisoned. Held, that the relator is improperly detained. Johnson v. Browne, U. S. Sup. Ct., April 8, 1907.

This decision affirms the decision of the lower court, commented upon in 20 HARV. L. REV. 71.

GUARDIAN AND WARD-INVALID APPOINTMENT OF GUARDIAN CONSTRUED AS CREATING VALID POWER IN TRUST. A testator devised the residue of his estate to his children and appointed guardians of their estates, directing that they should receive, hold, and pay out as guardians all funds and securities belonging to the children. The mother survived the father. The New York Domestic Relations Law gives only the surviving parent the right of appointment of a guardian for the minor children. Held, that the will confers on the persons named a valid power to act as a legally appointed guardian would act with respect to the property devised by the father. Matter of Kellogg, 187 N. Y. 355.

The Domestic Relations Law confers upon the mother rights respecting minor children equal to those of the father; hence it is clear that the father has no general power to appoint guardians during the life of the mother. Matter of Schmidt, 77 Hun (N. Y.) 201. But while, as father, he is thus deprived of authority to designate who shall control the persons or property of his children, as testator his power to dispose of his own property seems unchanged. A common incident to testamentary disposition of property is the designation of how it shall be managed; and persons without authority to appoint guardians may direct who shall control property bequeathed by them to minor children. Blanchard v. Blanchard, 4 Hun (N. Y.) 287; aff. 70 N. Y. 615. Even where such a testator specifically purports to name a guardian, the courts have construed the will as appointing the so-called guardian trustee of the property devised. Camp v. Pitman, 90 N. C. 615; contra, Brigham v. Wheeler, 49 Mass. 127. The present will, while invalid as appointing guardians, clearly indicates the testator's lawful intention to give the persons designated the control of the residue left the children, and where the intent to create a power is clear, any words, however informal, are sufficient. Turner v. Timberlake, 53

Mo. 371.

INFANTS UNBORN CHILDREN · CHILD EN VENTRE SA MÈRE NOT CONSIDERED BORN IF TO HIS DISADVANTAGE. A testator devised an estate to A for life, with remainder to A's third, fourth, and every other son successively in tail, but added a proviso that the third or any later son " 'born in my lifetime should take only a life estate with remainder over. At the testator's death A's third son was en ventre sa mère. Held, that he takes an estate tail. Villar v. Gilbey, [1907] A. C. 139.

This decision probably firmly establishes in the English law that, except for the purposes of certain rules of positive law, a child en ventre sa mère will not be considered born when it would be to his disadvantage. See 16 HARV. L. REV. 601.

FEDERAL EMPLOY

INTERSTATE COMMERCE - CONTROL BY CONGRESS ERS' LIABILITY ACT. The Act of Congress of June 11, 1906, c. 3073, 34 Stat. at L. 232, 233, provided that "every common carrier engaged in trade or

commerce

between the several states . . . shall be liable to any of its employees or in case of his death to his personal representative . . . for all damages which may result from the negligence of any of its officers, agents, or employees Held, that the statute is constitutional. Spain v. St. Louis& S. F. R. R. Co., 151 Fed. Rep. 522 (Circ. Ct., E. D. Ark., E. D.). For a discussion of the constitutionality of this statute, see 20 HARV. L. REV. 481.

INTERSTATE Commerce - WHAT CONSTITUTES Interstate Commerce EFFECT OF BILLING ON CHARACTER OF SHIPMENT. - A dealer under contract to supply wheat at Goldthwaite, Texas, in order to take advantage of the low intrastate freight rate in Texas, directed a seller to ship wheat to Texarkana, Texas, a point near the state line. The seller, at the time of shipment, did not know where the grain was to go after it reached Texarkana. Shortly after its arrival the dealer shipped the grain in the original cars under a bill of lading reading from Texarkana to Goldthwaite. Held, that this last shipment is not to be considered interstate. Gulf, C. & St. F. Ry. Co. v. Texas, U. S. Sup. Ct., Feb. 25, 1907.

When goods are shipped and billed from one state to another, the shipment is interstate throughout, though the last part of the journey may be over a railway entirely in one state. Cincinnati, etc., Ry. Co. v. Interstate Com. Com., 162 U. S. 184. Furthermore, a carrier's business is interstate if he carries goods destined from one state to another, though his carriage is for a part of the journey entirely in one state and under a bill of lading for that part only. The Daniel Ball, 10 Wall. (U. S.) 557. It follows that a single shipment, intended to go beyond a state in one journey, is interstate, though it may begin under a bill of lading between two points in the same state. Houston, etc., Co. v. Ins. Co. of North America, 89 Tex. I. In fact, the character of a shipment should be determined by the intent of the shipper, and not, as the reasoning of the present case suggests, by artificial divisions according to the bills of lading. See State v. Gulf, C. & St. F. Ry. Co., 44 S. W. Rep. 542 (Tex.). The result in the present case is therefore right, since the shipper did not know of any further destination when he sent the goods to Texarkana. See State v. So. Kan. Ry. Co. of Texas, 49 S. W. Rep. 252 (Tex.).

NANT.

LANDLORD AND TENANT CONDITIONS AND COVENANTS. IN LEASES EQUITABLE RELIEF FROM FORFEITURE INCURRED BY BREACH OF COVE- The appellant demised premises to the respondent under a lease providing for the payment of taxes by the lessee and for re-entry by the lessor in case of default. The lessee negligently failed to pay a tax assessment. At the sale of the premises therefor a third party secured a tax title, which was allowed to become prima facie irredeemable by the lapse of time. In consequence of a threat by the holder of the tax title to enforce it unless the lessor ejected the lessee, the lessor instituted landlord and tenant proceedings. The lessee, contending that the tax sale was void, sought to enjoin these proceedings so as to be relieved from the forfeiture of his lease. Held, that, since the relief asked would involve the lessor in a suit against a prima facie irredeemable title, it be denied. Kann v. King, 204 U. S. 43. See NOTES, p. 640.

MORTGAGES - Effect of MORTGAGE - LIABILITY OF MORTGAGOR FOR HERIOT. — The plaintiff was lord of a manor in which the defendant's ancestor held a freehold tenement subject to various feudal incidents, including a heriot of the best beast of the tenant at his death. The tenant mortgaged his land but remained in possession and paid the yearly rent. Held, that the mortgagor was so seised of the tenement that on his death the lord is entitled to a heriot from him. Copestake v. Hoper, [1907] 1 Ch. 366.

A mortgagor at common law does not have legal seisin, for seisin is possession either actual or constructive under a claim of a freehold estate. Towle v. Ayer, 8 N. H. 57. Consequently, if the mortgagor had seisin his possession would be adverse, and at the end of the statutory period the mortgagee's rights would be lost, - a conclusion which shows the fallacy of the premise. The

position of a mortgagor is similar to that of a tenant at will. Moss v. Gallimore, 1 Dougl. 278. Equity, however, treats the mortgagor as the real owner and the mortgage as a mere incumbrance. Fairclough v. Marshall, 4 Ex. D. 37. Thus the mortgagor of a patent right is the ". proprietor" of the right and may sue for its breach. Van Gelder, etc., Co. v. Sowerby, etc., Soc., 44 Ch. D. 374; cf. 10 HARV. L. REV. 249. Similarly the owner of an equity of redemption is held to have sufficient seisin to support curtesy. Casborne v. Scarfe, 1 Atk. 603; cf. 20 HARV. L. Rev. 407. The present case follows these analogies, and, distinguishing a mortgagee not in possession from a trustee who actually manages the property, reaches the equitable result that the mortgagor is the real owner and tenant even for purposes of the incidents of freehold tenancy.

MORTGAGES TRANSFER OF RIGHTS AND PROPERTY-Rights of Life TENANT BUYING IN AT FORECLOSURE. A mortgagor devised mortgaged property to the defendant's wife for life, remainder to their children. The mortgage was foreclosed, and the defendant bought in at the sale. Held, that presumptively the defendant is a trustee of the property for those in remainder, subject to the life estate. Griffith v. Owen, [1907] í Ch. 195. See NOTES, p. 639.

PATENTS INFRingement — Effect of Non-User On Right to INJUNCTION. To avoid competition the complainant bought in a patent but made no use of it. Held, that nevertheless an injunction be granted against infringement of it. Continental Paper Bag Co. v. Eastern Paper Bag Co., 150 Fed. Rep. 741 (C. C. A., First Circ.). See NOTES, p. 638.

POLICE POWER REGULATION OF BUSINESS AND OCCUPATIONS-PROHIBITION OF NIGHT WORK BY WOMEN IN FACTORIES. - A New York statute provided that no female should be employed or permitted to work in any factory before six o'clock in the morning or after nine o'clock in the evening. Held, that the statute is unconstitutional. People v. Williams, 116 N. Y. App. Div.

379.

The justification for statutes regulating the time or the length of the working day is the right of the state to make regulations for the public health or safety. Whether a particular statute is a reasonable exercise of such right, or is an unwarranted infringement of the constitutional guaranty of liberty and property rights, is a question for the court. Lochner v. New York, 198 Ú. S. 45. In a doubtful case, such as the attempt to limit the working day in mines and smelters to eight hours, the decisions are often in conflict. Cf. Holden v. Hardy, 169 U. S. 366; In re Morgan, 26 Col. 415. Because of the physical weakness of women and children as a class, restrictions on their work have been upheld which would be unconstitutional if applied to men. Thus, statutes regulating the length of a working day for female employees in factories have generally been held valid. State v. Buchanan, 29 Wash. 602; contra, Ritchie v. People, 155 Ill. 98. But the decision in the present case seems sound, as no evidence was offered showing the injurious effect on women of a reasonable amount of night work in factories.

QUIETING TITLE BILL BY ONE WHO HAS CONVEYED WITH COVENANTS OF WARRANTY. - The petitioner had conveyed land with covenants of warranty. A levy upon it was threatened under a judgment against a stranger to the title. This judgment antedated the petitioner's conveyance. Held, that the petitioner is entitled to equitable relief to quiet title to the land. Jackson Milling Co. v. Scott, 110 N. W. Rep. 184 (Wis.).

Bills to remove a cloud on title are allowed, it is true, partly to relieve a plaintiff from the damage that might result to him through difficulty of proof of stale events, or through lack of evidence occasioned by the defendant's undue delay in prosecuting his claim. But that consideration alone is insufficient. There has always been the additional basis of present loss to the plaintiff by a decrease in the marketability of his property. Cf. Bishop v. Moorman, 98 Ind. 1. Inasmuch as this second element is here lacking, the present case appears not to

present facts justifying the exercise of jurisdiction to quiet title. Chapman v. Jones, 149 Ind. 434. Nevertheless, the great majority of the score or more of cases on this point allow relief to one who, like the present plaintiff, has conveyed his lands with covenants of warranty. Pier v. Fond du Lac, 53 Wis. 421; Styer v. Sprague, 63 Minn. 414; contra, Chapman v. Jones, supra. This result, which perhaps must be looked upon as representing the law, finds explanation in the disinclination of the courts to allow the grantor's sale to deprive him of a previously existing right to equitable relief, and in their apparent identification of him with his grantee. Cf. Begole v. Hershey, 86 Mich. 130.

RES JUDICATA — MATTERS CONCLUDED — ISSUE RAISED BY Answer of Co-DEFENDANT. The plaintiff and the defendant had been joined as codefendants in a former action in equity. But in neither the plaintiff's answer in the former suit, which was in effect a prayer for the foreclosure of his mortgage, nor in the defendant's answer, which was in effect a denial of the plaintiff's claim, was the other named; nor was the plaintiff served with a copy of the defendant's answer. The only matter actually litigated seems to have been the plaintiff's present claim, and a decree was entered for the defendant. Held, that, in the absence of evidence showing that the question settled by the decree was not in fact litigated, the matter is res judicata. Gulling v. Washoe County Bank, 89 Pac. Rep. 25 (Nev.).

It is well settled that adverse rights between co-defendants may be effectually determined in equity. Corcoran v. Canal Co., 94 U. S. 741. It can hardly be maintained, however, that a party can be bound by a decree in any case unless it is founded on some pleadings between him and his adversary. But in the present case the pleadings, though not in the form of cross-complaint and denial, should be treated as such because of their substantial effect; and the failure of the plaintiff to object to the absence of the required service amounted to a waiver. Hapgood v. Ellis, 11 Neb. 131. The pleadings, therefore, did present an issue, although issue was not formally joined. Taking this view, it is not necessary to adopt the doctrine, vigorously denied by the dissenting judge, that a question which is not directly put in issue by the pleadings may be treated as res judicata when the decree purports to settle it. The position of the majority on this point seems unsatisfactory. Boston, etc., R. R. v. Sargent, 72 Ń. H. 455; House v. Lockwood, 137 N. Y. 259; but see BLACK, JUDGMENTS, 2 ed., § 614.

RULE AGAINST PERPETUITIES POWERS - CONTINGENCIES OCCURRING AFTER CREATION OF POWER AND BEFORE APPOINTMENT. A testator devised to his daughter for life, with testamentary power to appoint to her children or descendants. The daughter appointed by her will to her children for their respective lives, with remainder in fee to their heirs living at their death. All the daughter's children were actually born in the life of the testator. Held, that the appointment is invalid for remoteness. Brown v. Columbia Finance & Trust Co., 97 S. W. Rep. 421 (Ky.).

The validity of this power is clear. See GRAY, RULE PERP., 2 ed., § 510. The remoteness of the appointment (which must of course be reckoned from the date of the creation of the power) depends on whether it is to be interpreted and its validity governed according to the circumstances existing at the time of the appointment, when it was clear that all the donees for life were lives in being at the testator's death; or according to the outlook at the creation of the power, when the words here used to indicate those donees would have described a still open class. The principal case in adopting the latter criterion seems incorrect, as well as opposed to the weight of authority. Morgan v. Gronow, L. R. 16 Eq. 1; contra, Smith's Appeal, 88 Pa. St. 492. It is based on the idea that the appointment must be considered in all respects as written into the instrument creating the power. But this rule of thumb should not be given broader effect than the principle it was intended to elucidate, that remoteness is reckoned from the creation of the power. It is not sensible to prevent the donee from speaking validly in language appropriate to existing conditions, when it is always conceded that the same limitations would be good with the