20 HARV. L. REV. 652. If the goods have been shipped bona fide to a consignee in another state, and are then re-shipped by the consignee to another point within the state, such re-shipment is not a continuation of the interstate shipment. Gulf, etc., Ry. Co. v. Texas, 204 U. S. 403. But where the intrastate shipment is a mere subterfuge to benefit pro tanto by the reduced rates required by the state, the shipment is interstate. State v. Gulf, etc., Ry. Co., 44 S. W. 542 (Tex.). There seems no reason why the rule in regard to freight should not be equally applicable to passenger traffic. In the present case, since A's ultimate destination was undoubtedly without the state and his attempt to purchase a ticket to Y a mere pretext to secure the reduced fare, he should be considered an interstate passenger.

LIMITATION OF ACTIONS OPERATION AND EFFECT OF BAR BY LIMITATION EFFECT ON CO-TENANT UNDER DISABILITY. - An elevated railroad ran for the period of the statute of limitations in front of land owned by five tenants in common, one of whom was under a disability. On suit by their grantee the railroad claimed a right by prescription. Held, that the plaintiff can recover only one-fifth of the total injury caused by the defendant. Taggart v. Manhattan Ry., 38 N. Y. L. J. 1222 (N. Y., Sup. Ct., Dec. 1907).

The ordinary easement subjects the servient tenement to the dominant in such a way that it must necessarily exist against all those seised. Therefore one tenant in common cannot grant or reserve an easement valid against the others, since they have done nothing to subject their interests to a new burden. Marshall v. Trumbull, 28 Conn. 183; see Clark v. Parker, 106 Mass. 554. Similarly no easement should ordinarily be acquired upon the termination of the statutory period of limitations, if one co-tenant is under a disability. See Watkins v. Peck, 13 N. H. 360, 376. In the case of adverse possession, however, since the substitution of the possessor for the tenants not under disabilities cannot affect the interest in the whole land, of the tenant under a disability, the claims of the former should be barred. See Bryan v. Hinman, 5 Day (Conn.) 211; 10 HARV. L. REV. 384. The plaintiff's claim in the present case is for damages only; for the defendant's right of eminent domain makes it impossible to prevent the ultimate acquisition of the easement. Such a claim is clearly severable and is properly barred as to four-fifths, since the fifth interest derived from the co-tenant who was under a disability is not prejudiced thereby.

MANDAMUS - ACTS SUBJECT TO MANDAMUS — State's ATTORNEY ComPELLED TO BRING QUO WARRANTO. An Illinois statute provided "that the state's attorney, either of his own motion or at the instance of a private individual, may petition the court for leave to file an information in the nature of a quo warranto" against any one who should usurp any public office or any office in a corporation. The relator presented to the state's attorney a petition for an information in the nature of a quo warranto against one Brand, and filed affidavits making out a primâ facie case that Brand was unlawfully usurping an office in a private corporation of which the relator was a director. The state's attorney refused to sign and file the petition. Held, that mandamus lies to compel him to do so. People ex rel. Raster v. Healy, 82 N. E. 599 (III.).

It is a fundamental rule that mandamus will not lie to compel the performance of duties resting in the discretion of the officer charged therewith. People v. Dental Examiners, 110 Ill. 180. It has been held in several jurisdictions, however, that the courts will interfere by mandamus in cases where an official has abused his discretion. State v. St. Louis Public Schools, 134 Mo. 296. Generally, under statutes similar to that of Illinois, the courts will not compel a prosecuting attorney to bring quo warranto proceedings to oust a public officer. People v. Atty.-Gen., 22 Barb. (N. Y.) 114. The present decision properly distinguishes between the discretion that may be exercised by the state's attorney in such cases and that which may be used when the writ is directed against an officer of a private corporation. In the former case public policy requires substantial discretion to prevent unnecessary interference with public officials. In the latter case, since action by the state's attorney in no way affects the interest of the public, it is an abuse of his discretion if he refuses to proceed when a primâ facie case is presented to him.

MUNICIPAL CORPORATIONS - LEGISLATIVE CONTROL-PROVISION FOR ENACTMENT OF ORDINANCES. A city charter provided that all ordinances must be read three times to the board of aldermen before final passage. An ordinance was twice read before the board as constituted, but the final reading took place before a board organized after election, one half of its members being newly elected. Held, that the ordinance is invalid. Paterson, etc., R. R. Co. v. Mayor, etc., of Paterson, 68 Atl. 76 (N. J.).

Statutes very generally provide that an ordinance shall be read three times before final enactment. By the better opinion such restriction in the city charter is mandatory, not directory, and unless it is waived in some manner provided by the charter, an ordinance passed without the required readings is invalid. Swindell v. State, 143 Ind. 153. The cases opposed consider the requirement a parliamentary rule open to modification or waiver by the council. Aurora Water Co. v. City of Aurora, 129 Mo. 540. The legislative intent inferable from this requirement is obviously that the readings shall take place before a council with membership unchanged by a general election. Analogy to other legislative bodies and the apparent purpose to prevent ill-considered legislation lead to this conclusion. It is true that for certain administrative purposes and in its general business the demand is clearly for a continuity of action unbroken by election and change of membership. Booth v. Bayonne, 56 N. J. L. 268. But for strictly legislative purposes the continuity of such a body is broken by a general election. Thus, the present decision seems sound on principle, though the other authorities found on this point give the opposite construction to the requirement. Smith v. Columbus, etc., Ry., 8 Oh. N. P. 1; McGraw v. Whitson, 69 Ia. 348.

POLICE POWER REGULATION OF PROPERTY AND USE THEREOF SLEEPING-CAR BERTHS. A statute provided that the upper berth when unoccupied should be closed if the occupant of the lower berth so requested. Held, that the statute is unconstitutional. State v. Redmon, 114 N. W. 137 (Wis.).

Unless a valid exercise of the police power, the statute in question seems an unconstitutional regulation of the use of property. The legislature is ordinarily the proper judge of the necessity for health or other police regulation, and only when there exists no possible justification for a legislative act can the courts declare it unconstitutional. People v. Smith, 108 Mich. 527. But a statute showing on its face that it has no reasonable connection with the permissible objects of protection under the police power is unconstitutional, although purporting to be based on that power. Acts which it is sought to justify thereunder must be beneficial to the public generally, and the means must be reasonably necessary for the accomplishment of the purpose. Lawton v. Steele, 152 U. S. 133. A statute allowing only one berth in a section might well be upheld, but the protection of the health of the community is clearly not the purpose of legislation affording the lower berth better ventilation only upon the double contingency of the upper berth being unsold and the occupant of the lower requesting that it be closed. Cf. Chicago v. Netcher, 183 Ill. 104.

MENT.

SPECIFIC PERFORMANCE - DEFENSES PENDING ACTION OF EJECTA agreed to sell land to B, and B paid part of the purchase price. Before conveyance C brought ejectment against A. Then B filed a bill for specific performance. The court below decreed that A, if successful in the ejectment suit, should convey the land to B on payment of the balance of the purchase price within twenty days after termination of that suit. Held, that the decree is improper. Rosenberg v. Haggerty, 189 N. Y. 481.

The discretionary power of a court to grant or refuse specific performance of a contract must be exercised not arbitrarily or capriciously, but reasonably with a view to justice under the circumstances of the particular case. Quinn v. Roath, 37 Conn. 16. Since the court assumes that time is not of the essence of this contract, if a bill were brought after the termination of the ejectment suit, the court might grant specific performance, though several

years had elapsed. Gunton v. Carroll, 101 U. S. 426. Such a decree would be justifiable because the court would have before it all the facts which might render performance equitable or inequitable. In the present case, however, the court by its decree has bound both parties to carry out the contract at some indefinite future time. See Langdell, Brief Sur. Eq. JURISD., 46. Pending that time circumstances may intervene which would render performance an injustice to one or to both parties. See Gotthelf v. Stranahan, 138 N. Y. 345. From the nature of the case the court could not have these circumstances in mind. Consequently the principal case seems right in holding that the court cannot "suspend" a decree of specific performance over the parties.

TAXATION PROPERTY SUBJECT TO TAXATION · PROCEEDS OF FEDERAL SALARY. -The defendant taxed the plaintiff's bank deposit, which consisted only of money received by the plaintiff as his salary as an officer in the United States Navy. Held, that the tax is constitutional. Dyer v. City of Melrose, 83 N. E. 6 (Mass.).

A state cannot impose an income tax on the interest on federal bonds. Weston v. Charleston, 2 Pet. (U. S.) 449. But it can tax as personal property checks drawn on a sub-treasury for the payment of interest on the same bonds. Savings Society v. San Francisco, 200 U. S. 310. It cannot tax land owned by the federal government, though not used for any public purpose. Van Brocklin v. Tennessee, 117 U. S. 151. But as soon as an individual has taken the necessary steps to acquire the land, he may be taxed thereon, though, until the patent is issued, the legal title remains in the United States. Witherspoon v. Duncan, 4 Wall. (U. S.) 210. The test given is whether the state taxation impairs the efficiency of a federal agency in performing its functions. See Railroad Co. v. Penniston, 18 Wall. (U. S.) 5. Applying this test, the decision in the present case seems correct. The state could not, it is true, have taxed the salary of the plaintiff as income. Dobbins v. Commissioners of Erie County, 16 Pet. (U. S.) 435. But a tax on the money after it has been paid to him in no sense lessens the remuneration of a federal agent. The money has lost all federal nature, and has become indistinguishable from any other personal property taxable by the state.

TAXATION - PROPERTY SUBJECT TO TAXATION — STATE TAX ON PROCEEDS OF SALE OF IMPORTS. A foreign corporation was engaged in New York in the business of importing and selling goods in the original package. The proceeds of the sales, when in the form of cash, were temporarily deposited in New York banks, and when in the form of bills were held in New York for collection. The balance of the proceeds, after paying the customs duties on imports and other business expenses, were immediately remitted abroad. A tax was levied by the state on the cash on hand and in bank and on bills receivable, as capital employed by the corporation in business within the state. Held, that the tax was not invalid as a regulation of foreign commerce. People v. Wells, U. S. Sup. Ct., Jan. 6, 1908. See NOTES, p. 353.

TRADE-MARKS AND TRADE-NAMES -- PROTECTION APART FROM STATUTE SITUS OF PROPERTY RIGHT. — The plaintiffs had manufactured a liqueur which they sold under the trade-name "Chartreuse." This product was made in France, but was sold extensively in this country. The French government confiscated the property, and this trade-name was transferred to the defendant. The plaintiffs removed to another country and, continuing the sale of their goods in this country, marked as before, sought to restrain the defendants from selling their product in this country under the same name. Held, that the defendant be enjoined. Baglin v. Cusenier Co., 156 Fed. 1016 (Circ. Ct., N. D. N. Y.). See NOTES, p. 361.

BOOKS AND PERIODICALS.

I. LEADING LEGAL ARTICLES.

THE EFFECT OF PRESUMPTION of DeatH UPON MARKETABILITY OF TITLE TO REAL ESTATE. — It is an elementary rule of equity that an unwilling purchaser will not be forced to take a doubtful title. He cannot, however, demand a title absolutely free from suspicion, for in the nature of things a mathematically certain title is an impossibility. The test is not whether the title is free from all doubt, but whether it is free from reasonable doubt.

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An interesting phase of this subject is presented in cases where the state of the title depends on the death intestate and without issue of a person who has been absent and unheard of for a long time. In a recent article Mr. W. F. Meier has collected the authorities on this point. The Effect of Presumption of Death upon Marketability of Title to Real Estate, 19 Green Bag 713 (December, 1907). From a review of the cases the author reaches the following conclusions: (1) “ Mere absence from home without tidings. . . is not sufficient to render marketable the title to property in which the absent one, or his lawful issue, may have an interest. (2) Absence for a long period of years coupled with corroborative evidence pointing to a strong probability of actual death, will remove the cloud sufficiently to allow the enforcement of specific performance. (3) The disappearance and absence of a person, unmarried, under such circumstances as to warrant a finding for specific performance, will also raise a presumption of death without marriage and without lawful issue."

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The results reached by Mr. Meier seem sound. But when we accept them we are necessarily led to the further conclusion that the presumption of death as such has absolutely no effect on the marketability of title. As Mr. Meier says, "when a person has been absent from his home or residence, and has not been heard from by his friends and relatives for seven years, there arises a presumption of death." This presumption is rebuttable, but if no evidence is given for that purpose it must be sustained by the court or jury. If, then, " mere absence" for seven years when no evidence is offered to rebut the presumption of death is not enough to warrant the court in forcing title on a purchaser, it cannot be said that the presumption, as such, is given any effect. This fact is made still clearer when we require the absence, though long enough to raise the presumption of death, to be "coupled with corroborative evidence pointing to a strong probability of actual death."

Furthermore, in most of the cases of this kind in which the marketability of title comes in question the court must feel sure to a moral certainty, not only that the absent party is dead, but also that he has not made a will or married and left issue. If he was unmarried when last heard of, the legal presumption, corresponding to the presumption of death, is that he died without legal issue. Few of the cases expressly consider how either of the difficulties suggested should be met when they arise in the present connection. But it will be noted that in practically all the cases in which specific performance is decreed against the vendee, there are circumstances that tend strongly to show that the absentee died within a short time after his disappearance, and therefore the possibility of his having married and left issue is very remote. Similarly, the fact that no one has appeared claiming under a will of the decedent although many years have elapsed since he disappeared, coupled with the further fact that he probably

1 See Lyddall v. Weston, 2 Atk. 19.

2 See also Maupin, Marketable Title, 2 ed., 746 n.

3 Biegler v. Supreme Council, 57 Mo. App. 419.

4 Shown v. McMackin, 9 Lea (Tenn) 601.

5 Cambrelleng v. Purton, 125 N. Y. 610; Ferry v. Sampson, 112 N. Y. 415; Bowditch v. Jordan, 131 Mass. 321.

died a short time after he was last heard of, is sufficient to convince the courts of intestacy. The result, then, seems to be that the courts in fact give no weight to either of the presumptions as such, but apply the general rule that the title must be free from reasonable doubt, and to this end they require that the circumstances be such as to show beyond a reasonable doubt that the absentee has died intestate and without legal issue.

TITLE BY DEVOLUTION OF POSSESSORY RIGHTS. That much of the learning concerning the history and development of our laws of property and much of the speculation upon the nature of title and possession are not only of interest to the antiquarian and the philosopher but are of practical value to the modern lawyer, is well illustrated by a recent article. Title by Devolution of Possessory Rights, Anon., 17 Madras L. J. 297 (August, 1907). The article is a review of the principles involved in a recent Indian decision 1 in which it was held apparently for the first time — that the heir of a disseisor cannot recover possession from a trespasser who enters upon the land after the death of the ancestor and before the entry of the heir. This decision the author believes to be erroneous and contrary to the fundamental principles of English law. "Possession." he says, "is protected not merely as a fact, . . . or as an imperfect title in the course of ripening into ownership by the operation of the law of prescription, but as a substantive right or interest by itself." The ancestor in the present case, therefore, acquired a substantive right in the land which gave to his heir, without any possession of his own, a right good against all the world except the true owner.

In this conclusion the learned author seems eminently sound. The protection afforded the possession of a disseisor, even against the true owner, was fundamental in our law and forms a large chapter in its history. This protection applied both to land and to chattels, and we can find traces of it in the doctrines of discontinuance and descent cast. A possession that was so protected was not merely a physical fact but a recognized legal right. This point was still more noticeable in dealings between third persons and the disseisor; for the latter had a right transferable, devisable, giving dower and curtesy, and subject to execution and escheat. Furthermore, his title was good against all but the disseisee, and when that one outstanding right became extinguished absolute ownership resulted. Hence the common law doctrine was a doctrine of relative ownership. If A, B, and C successively take X's land, C may be said to be the owner, subject only to the outstanding rights of A. B, and X. When those outstanding rights are extinguished, C becomes the absolute owner.

Modern cases accord with this conception of possession and title. The adverse possessor can maintain ejectment against all but the disseisee or any one claiming under him. One who has adverse possession for ten years acquires such an interest that when the sovereign takes the land by eminent domain, his executors may require the land to be valued with a view to compensation. It may be urged that in these cases the law gives a remedy in the nature of a tort action for interference with possession and not a proprietary remedy. As the author points out, if this were true, the heritable or devisable character of a possessory right, as shown in history, would be an illusion. For if the heir has entered into possession, all redress can be secured on the strength of that possession and no question of the heritable character of such right would ever arise. Has the common law changed today? The American cases which hold that the statute of limitations will not run against successive

1 Shi Gopal v. Ayesha Begam, [1906] I. L. R. 29 All 52.

2 Pollock and Maitland, History of English Law, B. II, c. IV.

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3 HARV. L. REV. 23.

4 4 L. Quar. Rev. 286.

52 L. Quar. Rev. 481, 488.

6 Asher v. Whitlock, L. R. 1 Q. B. 1.

7 Perry v. Clissold, [1907] A. Č. 73. See 20 HARV. L. REV. 563.