unconstitutional because it differentiated producers who sold, from other vendors. Connolly v. Union Sewer Pipe Co., 184 U. S. 540. The spirit and reasoning of the two cases are quite different. The writer of the dissenting opinion in the earlier case now announces the view of the united court. The decision is to be supported on the ground, which the opinion takes, that a legislative classification should be upheld if within the bounds of reason.

CONTRACTS SUITS BY THIRD PERSONS NOT PARTIES TO THE CONTRACT SOLE BENEFICIARY - MASSACHUSETTS LAW. The defendant's testator promised the father of an infant, in consideration of the naming of the child for him, to settle a sum of money on the infant. The child, by his father as next friend, sues upon this contract. Held, that he can recover. Gardner v. Denison, 105 N. E. 359 (Mass.).

This case is somewhat startling in Massachusetts, where a sole beneficiary cannot recover at law or in equity on the contract made for his benefit. Marston v. Bigelow, 150 Mass. 45, 22 N. E. 71. In cases where a creditor is the beneficiary of a contract made by his debtor, Massachusetts has already retreated from her former strict position, and now allows the creditor to reach the contract in equity as an asset of the debtor. Forbes v. Thorpe, 209 Mass. 570, 95 N. E. 955. Cf. Borden v. Boardman, 157 Mass. 410, 32 N. E. 469. See 25 HARV L. REV. 289. In the principal case, in order to escape the severity of its rule concerning sole beneficiaries, the court says that the father in naming his new-born son acted as the contracting agent of the child. This is a return to the seventeenth-century reasoning which identified the child with its parent. Dutton v. Poole, 1 Vent. 318, 332. The clear-cut anomaly of a recovery by the sole beneficiary at law, such as exists i many American jurisdictions, is preferable to such a fiction. A recovery in equity would equally accomplish justice, and at the same time would be theoretically justifiable. See Linneman v. Moross, 98 Mich. 178, 182, 57 N. W. 103, 105; 15 HARV. L. REV. 773. In New York, however, the courts would permit recovery in the principal case on the curious theory that the moral obligation to support a dependent relative makes the contract one for the benefit of a creditor of the promisee. Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724.

EASEMENTS MODES OF ACQUISITION ASSUMPTION OF EASEMENT BY ALLEGED DOMINANT OWNER. The owner of certain lake-front property sold a portion of his land to the plaintiff city with full knowledge of the latter's purpose to install forthwith a pumping station and supply its inhabitants with drinking water. The grantor thereafter sold the remainder of his property to the defendant, who had constructive notice of the use to which the plaintiff's land was being put. The plaintiff now asks for an injunction against any user of the lake by the defendant for bathing purposes, which was granted. Held, on appeal, by an equally divided court, that the plaintiff is entitled to the relief sought. City of Battle Creek v. Goguac Resort Ass'n, 148 N. W. 441 (Mich.).

Many decisions, recognizing easements created without grant, while based in terms on estoppel, can be rested on the sounder equitable doctrine that part performance may take a contract out of the Statute of Frauds. East India Co. v. Vincent, 2 Atk. 83. But in the principal case it seems scarcely possible to contend that there was any contract for an easement, especially against the defendant, a stranger to the original conveyance. Equity also recognizes servitudes which because of lack of privity, or because of some informality in the necessary covenant, do not run at law. Tulk v. Moxhay, 11 Beav. 571. In the principal case, however, aside from the lack of any attempted covenant, there is no clear intent to benefit the dominant tenement, an element deemed equally essential to an equitable servitude. See Keates v.

Lyon, L. R. 4 Ch. App. 218, 224. In some jurisdictions equity has even taken the extreme step of allowing the creation of easements by parol license. Rerick v. Kern, 14 S. & R. (Pa.) 267; Rhodes v. Otis, 33 Ala. 578; Rochdale Canal Company v. King, 22 L. J. Ch. n. s. 604. Contra, National Stock Yards v. Wiggins Ferry Co., 112 Ill. 384; Nowlin Lumber Co. v. Wilson, 119 Mich. 406, 78 N. W. 338; Ewing v. Rhea, 37 Ore. 583, 62 Pac. 790. This doctrine marks a clean break from the common law, in which it can find little justification. The principal case goes even farther, in that there is here no license, and so the basis on which the doctrine usually proceeds is lacking. Nor is there any misrepresentation. The alleged servient owner's conduct was throughout consistent with the assumption that the city was thereafter to acquire water rights by condemnation. The decision tends to secure municipalities from the carelessness of their legal advisers, but it is otherwise to be regretted.

EVIDENCE- DECLARATIONS CONCERNING PEDIGREE REQUISITE CONNECTION WITH THE FAMILY.-To prove his claim to the deceased's property, the petitioner offered declarations of his mother that she married the father of the deceased. There was no evidence of the relationship between the declarant and the deceased other than these declarations. Held, that the declarations are not admissible. Aalholm v. People, 105 N. E. 647 (N. Y.).

All the courts agree that the declarant's connection with the family must be proved by independent evidence in order to bring his declarations within the pedigree exception to the hearsay rule. Banbury Peerage Case, 2 Selw. N. P. 764. But there has been a wide difference of judicial opinion with respect to the meaning of "the family." The deceased's family, of course, is the one primarily concerned with the question of inheritance, but a marriage between representatives of the two families is none the less a fact in the family history of both. The broader, and what has appeared to be the prevailing view, has therefore been satisfied with proof of the declarant's relationship to either family. Monkton v. Attorney-General, 2 Russ. & M. 147; Sitler v. Gehr, 105 Pa. 577. Dean Wigmore has lent his weighty support to this view, and has severely criticised its opponents. See WIGMORE, EVIDENCE, § 1491. The narrower rule requires independent proof of the declarant's membership in the family whose inheritance is in dispute. Blackburn v. Crawfords, 3 Wall. (U. S.) 175. The declarations offered in the principal case give an excellent illustration of the dangers of manufactured evidence involved in the more liberal rule, which would make possible the establishment of a claim by the claimant's own testimony to the assertions of deceased members of his family. Such considerations go far to justify the court's adoption of the more conservative view, and its decision in favor of a doctrine somewhat discredited in the past would seem likely to determine the trend of future American authority.

POST-OFFICE RECORDS.

EVIDENCE STATEMENTS IN PUBLIC DOCUMENTS -To prove the time at which a telegram was delivered, records kept by the post-office officials showing the times of the receipt and delivery of telegrams were offered. These records were preserved only for a limited time, and were used chiefly for calculating the messenger boys' fees. The absence of the entrant was not accounted for. Held, that the records are not admissible. Heyne v. Fischel, 110 L. T. R. 264 (K. B. Div.).

The court holds that the absence of any opportunity for inspection by the public was a fatal objection to the admission of these records under the public document exception to the hearsay rule. This doctrine seems well established in England, on the ground that publicity reduces the probability of error. Sturla v. Freccia, L. R. 5 A. C. 623, 643. This reasoning, however, merely points out a possible advantage from public access, of small moment because

of the fixed requirement that the record must be kept in discharge of official duty, and it is submitted that the limitation is not a desirable one. In the United States it has never been definitely accepted. See WIGMORE, EVIDENCE, § 1634. But the second objection taken by the court, that the records were only for a temporary purpose and not of a permanent character, is valid, and on this point the principal case may be supported. Hegler v. Faulkner, 153 U. S. 109. In the United States, post-office records have been generally considered within the public document exception. Gurney v. Howe, 9 Gray (Mass.) 404. But the records admitted are kept by the direction of the PostOffice Department and the postmaster is bound to see that they are correct and to certify the facts to the Department. See Miller v. Boykin, 70 Ala. 469, 478. The records in the principal case would perhaps be more properly admissible under the entry in the course of business exception to the hearsay rule. But failure to account for the absence of the entrant is conclusive against this possibility. See WIGMORE, EVIDENCE, § 1521.

INDEBTEDNESS OF

EXECUTORS AND ADMINISTRATORS ADMINISTRATION HEIR TO ESTATE AS LIEN ON HIS SHARE OF THE REALTY. - An heir owed the estate more than the value of his distributive share of the real estate. After the Probate Court had refused the indebted heir participation in the distribution thereof, judgment creditors of this heir levied on his alleged interest in the realty. The other heirs brought a bill in equity for a decree to quiet their title to such real estate, free from any lien on the part of the judgment creditors. Held, that the relief should be granted. Stenson v. Halvorson, 147 N. W. 800 (N. D.).

It is considered that the indebtedness constitutes a prior equitable lien upon the debtor's distributive share of the real estate. Admittedly personal property, which vested in the administrator, could be charged with a distributee's indebtedness, but at common law the rule was clearly otherwise as to realty, which passed directly to the heir free of all charges. See Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533, 547; 9 HARV. L. REV. 157. But under modern statutes, such as that in the principal case, which treat real and personal property alike, as descendible subject to administration, many courts have stretched a point to allow the administrator to withhold real estate from an indebted heir. Streety v. McCurdy, 104 Ala. 493, 16 So. 686; Oxsheer v. Nave, 90 Tex. 568, 40 S. W. 7. This result is not without vigorous dissent. Marvin v. Bowlby 142 Mich. 245, 105 N. W. 751; La Foy v. La Foy, 43 N. J. Eq. 206, 10 Atl. 266. Some courts distinguish between real estate and surplus proceeds in administrator's hands from the sale thereof. Fiscus v. Moore, 121 Ind. 547, 23 N. E. 362. This distinction is probably unsound, for such funds are not personal assets, but in equity are still realty, subject to the lien of judgment creditors of the heir. Cf. Simonds v. Harris, 92 Ind. 505. See Streety v. McCurdy, supra, 687. The principal case reaches an equitable and practical result, and agrees with the modern tendency to abolish the artificial difference in the administration of intestate real and personal property.

FIXTURES REMOVAL - EFFECT OF NEW LEASE ON TENANT'S RIGHT OF REMOVAL. A tenant in possession installed agricultural fixtures with the understanding that he should have the right to remove them. Subsequently he took out a new lease, which described the premises in general terms and reserved no right to remove the articles affixed. There was in addition a covenant to yield up the premises in as good repair as when taken. The landlord now sues the tenant for removing the fixtures. Held, that he cannot recover. Sassen v. Haegle, 147 N. W. 445 (Minn.).

The court speaks as though the fixtures remained personalty. Grant this, and tenant's right of removal is unquestionable. Probably, however, the court

only confuses the nature of the tenant's right, which is historically a privilege of severance from the realty that the law has come to allow tenants during their terms. This confusion is frequently made. Kerr v. Kingsbury, 39 Mich. 150. Considering the fixtures, then, as realty, the present weight of authority holds that the tenant, by accepting a new lease without reserving his right of removal, conclusively indicates his intention to abandon that right and treat the fixtures as an inseparable part of the premises newly demised. Carlin v. Ritler, 68 Ind. 418, 13 Atl. 370; Watriss v. First Bank of Cambridge, 124 Mass. 571; Sanitary District v. Cook, 169 Ill. 184, 48 N. E. 461. But the obvious hardship of this doctrine has led many courts to repudiate it altogether, or to whittle down the scope of its operation. Kerr v. Kingsbury, supra; Second National Bank v. Merrill, 69 Wis. 501. Cf. Red Diamond Clothing Co. v. Steidemann, 169 Mo. App. 306, 152 S. W. 609. Bernheimer v. Adams, 70 N. Y. App. Div. 114. See 15 HARV. L. REV. 853. Moreover, the doctrine is never applied in the analogous case of a tenant holding over by mere informal agreement. Crandall Investment Co. v. Ulyatt, 40 Col. 35. As the right of severance during the original term depended upon no stipulation in the lease, the majority rule is peculiarly deceptive. The juster test is one of intention, deduced by interpreting the lease in the light of all the circumstances - not merely inferred from the isolated fact that tenant technically "delivered up possession" under the old tenancy without reserving his right of severance. Wright v. MacDonnell, 88 Tex. 140, 30 S. W. 907.

HUSBAND AND WIFE-RIGHTS OF WIFE AGAINST HUSBAND - WIFE'S RIGHT TO SUE HUSBAND FOR PERSONAL TORTS. A wife sued her husband for assault and battery under a statute providing that married women shall retain the same legal existence and legal personality after marriage as before marriage. Held, that the wife can recover. Fiedeer v. Fiedeer, 140 Pac. 1022 (Okla.).

A wife sued her husband for assault, battery and false imprisonment under a statute placing husband and wife on separate bases with respect to their property. Held, that the wife can recover. Brown v. Brown, 89 Atl. 889 (Conn.).

At common law the unity of husband and wife prevented either from maintaining an action against the other. Phillips v. Barnet, L. R. 1 Q. B. D. 436. See STEWART, HUSBAND AND WIFE, § 48. Even under married woman's acts the tendency has been to deny wives the right to sue their husbands for personal injuries on the ground that the statutes do not make this change in the common law specifically and so cannot be presumed to have intended it. Freethy v. Freethy, 42 Barb. (N. Y.) 641; Thompson v. Thompson, 218 U. S. 611; Schultz v. Schultz, 89 N. Y. 644, overruling Schultz v. Schultz, 27 Hun (N. Y.) 26. A supposed public policy against aggravating domestic troubles by bringing them into the public courtroom, has been partly responsible for this narrow interpretation of the statutes. Longendyke v. Longendyke, 44 Barb. (N. Y.) 366. Strangely enough, however, actions between husband and wife for torts to property seem generally to be permitted. Smith v. Smith, 20 R. I. 556, 40 Atl. 417; Mason v. Mason, 66 Hun (N. Y.) 386, 21 N. Y. Supp. 306; Carpenter v. Carpenter, 154 Mich. 100, 117 N. W. 598. At present a change seems to be taking place in the law. Courts deprecate the fact that they are bound by authority to the earlier rule. See Abbe v. Abbe, 22 App. Div. (N. Y.) 483, 48 N. Y. Supp. 25; Sykes v. Speer, 112 S. W. 422 (Tex. Civ. App.). The principal cases represent the latest view, namely, that these statutes amount to fundamental legislation changing the status of married women completely and that the right to maintain actions against their husbands for torts is simply a logical consequence of this new status. Against the adoption of this broader interpretation, the decisions find no public policy,

contending that the right of wives to recover damages for personal injuries inflicted by their husbands will restrain rather than foster domestic discord.

NATURE AND SCOPE OF THE REMEDY

INJUNCTIONS DISCRETION OF THE COURT TO REFUSE RELIEF ON GROUNDS OF PUBLIC CONVENIENCE. Under a municipal franchise ordinance a company had permission to lay pipes in the street to conduct gas for heating purposes; but the ordinance expressly prohibited the use of the streets to supply gas for lighting purposes, in competition with the municipal lighting plant. The gas service given by the city was poor in quality. The city asked for an injunction restraining the company from supplying gas for lighting purposes, in violation of its franchise. Held, that the injunction should not be granted, because of the inconvenience it would cause to the public. City of Wheeling v. Natural Gas Co. of West Virginia, 82 S. E. 345 (W. Va.).

A court of equity may consider the convenience and interests of others than the litigants in exercising its discretion whether to grant its extraordinary relief by way of injunction. Curran v. Holyoke Water Power Co., 116 Mass. 90; Conger v. New York, W. S. & B. R. Co., 120 N. Y. 29, 23 N. E. 983. Thus one court refused relief to a water company whose exclusive franchise was being unlawfully invaded by a rival company, on the ground that the city needed the extra water supply. Stein v. Bienville Water Supply Co., 32 Fed. 876. Another court refused to protect by injunction a factory owner, whose water supply was unlawfully diverted by a canal company, because of the importance of the canal as an artery of commerce. Cameron Furnace Co. v. Pennsylvania Canal Co., 2 Pears. (Pa.) 209. Riparian land owners were denied relief against the pollution of the stream by a municipal sewer system on similar grounds. Grey v. Paterson, 60 N. J. Eq. 385, 45 Atl. 995. In England there is a tendency, however, not to permit questions of public convenience to interfere where the parties are otherwise clearly entitled to relief. Lloyd v. London, Chatham and Dover Ry. Co., 34 L. J., Ch. 401. Indeed, the power to do so was vigorously denied by Lord Cranworth. See Broadbent v. Imperial Gaslight Co., 26 L. J., Ch. 276, 283. But see Woods v. Charing Cross Ry. Co., 33 Beav. 290. American courts are more liberal in this regard. Johnson v. United Railways Co. of St. Louis, 227 Mo. 423, 127 S. W. 63. Cumming v. Board of Education, 175 U. S. 528. The principal case is a striking example of the flexibility which this discretionary power gives to equitable procedure. Newport v. Newport Light Co., 14 Ky. 845, 21 S. W. 645.

INTERSTATE COMMERCE - INTERSTATE COMMERCE COMMISSION POWER OF THE COMMISSION TO FIX RATES. In accordance with the provisions of the long and short-haul clause of the Act to Regulate Commerce, as amended, which provides that a carrier may not lawfully charge greater compensation for a shorter than for a longer haul over the same line, except when authorized by the Interstate Commerce Commission, seventeen carriers applied to the Commission for permission to continue the rates then in force, which involved higher rates to intermediate points than for the longer haul through to the coast. The Commission refused to grant this petition unqualifiedly, but entered an order dividing the country into zones and permitting a higher rate for the shorter haul, provided that a proportionate relation between the rates was maintained according to a percentage fixed by the Commission for each zone. The carriers refused to obey this order and commenced proceedings to enjoin the enforcement of the section, as unconstitutional, and in any event, of the order, as invalid under a proper construction of the amended section. Held, that the section is constitutional, and that the order does not exceed the powers conferred by it on the Commission. The Intermountain Rate Cases, 234 U. S. 476.