later overruled its former decision and decided that the act did fall within the statute. The defendant was then indicted under the statute. The trial court sustained a demurrer to the indictment and the state appealed. Held, that the judgment must be affirmed and the defendant discharged. State v. Longino, 67 So. 902 (Miss.).

For a discussion of how far an overruling decision may be retroactive, see NOTES, p. 80.

MASTER AND SERVANT WORKMEN'S COMPENSATION ACT- AMOUNT OF COMPENSATION AWARDED WHERE THE WORKMAN HAD FORMERLY BEEN INJURED. The plaintiff, having formerly lost one eye, lost the other in the defendant's employment and sued for the injury. The Michigan Workmen's Compensation Act provides different proportions of the employee's average wage where total and where partial disability results. In addition, some injuries, including the loss of both eyes, are expressly specified as total disabilities. The loss of one eye is a partial disability. Held, that the plaintiff was entitled only to compensation for partial disability. Weaver v. Maxwell Motor Co., 152 N. W. 993 (Mich.).

Under a similar statute in New York, which specifies the loss of two hands and of one hand as total and partial disabilities respectively, the plaintiff, who had previously lost one hand, lost the other. He sued. Held, that he could recover for total disability. Schwab v. Emporium Forestry Co., 153 N. Y. Supp. 234 (Sup. Ct. App. Div., 3d Dept.).

It is a well-established rule of common law that a person is liable for the damages which proximately result from his culpable act, no matter whether the condition of the injured person before that act caused the damages to be greater than they would otherwise have been. Basham v. Hammond Packing Co., 107 Mo. App. 542, 81 S. W. 1227; Jordan v. City of Seattle, 30 Wash. 298, 70 Pac. 743. The Workmen's Compensation Acts, though they have done away with recovery in tort, clearly aim to supply relief to the injured employee regardless of the culpability of the employer. See Wambaugh, "Workmen's Compensation Acts," 25 HARV. L. REV. 129, 131. Again, the amount of compensation recoverable under the Acts is made proportional to the loss of earnings caused by the injury. Sullivan's Case, 218 Mass. 141, 105 N. E. 463. See 2 SEDGWICK, DAMAGES, 9 ed., § 675 a. Thus, they emphasize rather than alter the common-law principle of damages. Lee v. William Baird & Co., 45 Scot. L. Rep. 717. As total disability certainly resulted from the accidents in the principal cases, it is submitted that the decision of the New York court is the more sound. Nor does this result work an injustice on the employer, since the wages earned by a previously disabled employee, and hence the compensation the employer must pay, are less than those he must pay to an able-bodied man. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT CHARACTER OF PAYMENTS-DUTY OF RECEIVER TO PAY PAST CLAIMS. A receiver carrying on the business of an insolvent corporation petitions for instructions as to whether he need make workmen's compensation payments for injuries that happened before he was appointed. Held, that he must make the payments. Wood v. Camden Iron Works, 221 Fed. 1010 (Dist. Ct., D. N. J.).

At common law the workman's remedy would be in tort. Tort claims that arose prior to the receivership, the receiver is not commonly required to pay. Easton v. Houston & T. C. Ry. Co., 38 Fed. 12. See 23 HARV. L. REV. 488. But receivers who carry on the business are required to pay in full antecedent debts of certain classes. Fosdick v. Schall, 99 U. S. 235. Chief of these are recent debts for operating expenses. Drennen v. Mercantile Trust & Deposit Co., 115 Ala. 592, 23 So. 164. Payments under the Workmen's Compensation Acts are pretty clearly not tort payments. See Interstate Telephone & Telegraph Co. v. Public Service Electric Co., 86 N. J. L. 26, 28, 90 Atl. 1062; Trim

Joint District School Board v. Kelly, [1914] A. C. 667, 675; BIRRELL, EMPLOYER'S LIABILITY, 83; Jeremiah Smith, "Sequel to Workmen's Compensation Acts," 27 HARV. L. REV. 235. Their true nature is to be discovered only from an examination of the statutes. The intention of the statutes was to throw on industry the cost of personal injury to workmen, on the theory that this cost is properly a part of the cost of production. See Borgnis v. Falk Co., 147 Wis. 327, 374, 133 N. W. 209, 224; Wambaugh, "Workmen's Compensation Acts," 25 HARV. L. REV. 129, 130. See also 28 HARV. L. REV. 307. This being so, the payments, although the liability is contingent, are nevertheless to be classed as operating expenses, whether they are further classed as wages, or insurance, or a combination of the two, or enforced pensions, or taxes, or something given in lieu of wages. They should, therefore, be continued by the receiver. In the actual case this result was the more easily reached because of an unusual provision in the statute, that the payments shall go on while the business is being conducted during bankruptcy or insolvency. See N. J. P. L. 1911, 136.

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BILL FOR RE

MORTGAGES - FORECLOSURE UNDER POWER OF SALE DEMPTION SALE PENDING BILL. During pendency of a bill in the alternative, asking for cancellation because full payment except for usurious interest had been made, or for redemption, the mortgagee foreclosed under a power of sale. Held, that the exercise of the power of sale is subject to the equity of the bill. Carroll v. Henderson, 68 So. 1 (Ala.).

It is often urged that the filing of a bill to redeem will not suspend the power of sale since it would be giving the mortgagor a power to suspend or qualify the contractual right he has vested in the mortgagee, without the mortgagee's consent. Stevens v. Shannahan, 160 Ill. 330, 43 N. E. 350; 2 JONES, MORTGAGES, § 1906. See dissent in the principal case. It is clear, however, that the jurisdiction of equity to relieve against forfeitures in mortgages is always in substance a question of varying the agreement of the parties. I POMEROY, EQUITY JURISPRUDENCE, § 162. The power of sale in mortgages is undoubtedly an attempt to avoid the interference of the chancellor. 2 JONES, MORTGAGES, 81764. Equity, however, is not completely ousted of its jurisdiction and should prevent an inequitable exercise of the power. Thus in the principal case it is no hardship on the mortgagee to suspend his power of sale "subject to the equity of the bill" since the sale will be invalid only in case the bill shows that it would be inequitable for him to exercise the power. Ryan v. Newcomb, 125 Ill. 91, 16 N. E. 878. National Building & Loan Ass'n v. Cheatham, 137 Ala. 395, 34 So. 383.

NEGLIGENCE - PROOF OF NEGLIGENCE - RES IPSA LOQUITUR. - The plaintiff while passing along the sidewalk was hit by a board falling from the defendant's house. He showed by his evidence that the board had been loose a long time and just why it fell. Held, that it was reversible error to give him the benefit of the "presumption" arising from the doctrine of res ipsa loquitur. McAnany v. Shipley, 176 S. W. 1079 (Kansas City Ct. of App., Mo.).

The doctrine of res ipsa loquitur is generally spoken of as warranting a "presumption" of negligence. Byrne v. Boadle, 2 H. & C. 722; Price v. Metropolitan St. Ry. Co., 220 Mo. 435,456, 19 S. W. 932, 936; 4 WIGMORE, EVIDENCE, 8 2509. By this is meant nothing more than that the facts of the injury are sufficient to warrant an inference of negligence, but not that the jury is required to draw one. Palmer Brick Co. v. Chenall, 119 Ga. 837, 842, 47 S. E. 329, 330. See 2 CHAMBERLAYNE, EVIDENCE, §§ 1026, 1027. The doctrine is simply one of the quantity of circumstantial evidence required to enable the plaintiff to go to the jury. See 20 HARV. L. REV. 228, 229. The facts of the principal case clearly justify the application of the doctrine. Kearney v. London, etc. Ry. Co., L. R. 5 Q. B. 411, L. R. 6 Q. B. 759. That the plaintiff showed

additional evidence of the defendant's negligence merely meant that he had more than enough evidence upon which to go to the jury. Under these circumstances an instruction giving him the benefit of the doctrine, even though unnecessary, was harmless. The real fault below seems to have been that the court instructed the jury that the doctrine of res ipsa loquitur warranted a "presumption of law" in favor of the plaintiff and from this the jury might well have thought that it was not free to draw any other inference than negligence.

PRESUMPTIONS - EXISTENCE AND EFFECT OF PRESUMPTIONS IN PARTICULAR CASES OPERATIONS AGAINST STATE OF PRESUMPTION OF LOST GRANT. - In an action in equity to confirm title to real estate the plaintiff showed a 1907 patent from the state, the state having bought at a tax sale in 1872. The defendant claimed under deeds executed in 1884 and 1890, and showed he had been in undisturbed possession for over thirty years. The records prior to 1884 had been burned. Held, that the plaintiff's action be dismissed since a grant from the state to defendant would be presumed. Caruth v. Gillespie, 68 So. 927 (Miss.).

For a discussion of the principles involved in allowing such a presumption to operate against the state, see NOTES, p. 88.

PRESUMPTIONS SIMILARITY OF LAW OF SISTER STATE CONSTITUTION. In a suit for the conversion of the proceeds of a carload of feed, the defendant alleged that he had received the money under a garnishment judgment of a Tennessee justice's court. He gave no evidence as to the law of Tennessee. Under both the Code and Constitution of Iowa, a justice's court could not have had jurisdiction to render such a judgment. Held, that the plaintiff cannot recover. Droge Elevator Co. v. W. P. Brown Co., 151 N. W. 1048 (Ia.).

In the absence of evidence, most courts presume that the common law of a sister state is similar to that of the forum, provided that they are of common origin. Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456. Cf. Peet v. Hatcher, 112 Ala. 514, 21 So. 711. See 4 WIGMORE, EVIDENCE, § 2536. In some states, among them Iowa, this presumption has unfortunately been extended to statutory law. McMillan v. American Express Co., 123 Ia. 236, 98 N. W. 629. See A. M. Kales, “Presumption of Foreign Law," 19 HARV. L. REV. 401, 410. In such states, when a statute of another state is proved, it should be presumed to be constitutional. Fidelity Ins. Co. v. Nelson, 30 Wash. 340, 70 Pac. 961. But where such a statute has not been proved, there is no ground upon which the presumption of an enactment should be refused merely because it happens to appear in the constitution rather than the statute book. Cook v. Chicago, R. I. & P. Ry. Co., 78 Neb. 64, 110 N. W. 718. A fortiori, it is inconsistent to refuse to presume the uniformity of law when, as in the principal case, both the statutes and the constitution govern the subject. It is submitted that the better rule to be applied in such cases is for the court to take judicial notice of the laws of all the states. Such a rule could only be effected by legislation, but this has been done in a few jurisdictions. See W. Va. CODE, 1906, c. 13, § 4; MISS. CODE, 1906, § 1015.

RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY CHANGE IN CHARACTER OF LOCALITY AS GROUND FOR DECREE QUIETING TITLE. - A conveyance subject to the restriction that only dwelling houses should be erected on the property was made at a time when the property was in a choice residential district. Since then the neighborhood has been wholly given over to manufacturing of an offensive kind. Held, that the restriction is terminated, and that equity will remove it as a cloud on title. McArthur v. Hood Rubber Co., 109 N. E. 162 (Mass.).

Courts of equity usually regard agreements restricting the use of land as contract rights. Thus, in the exercise of their discretion, they deny specific

performance and leave the plaintiff to his remedy at law whenever the character of the locality has so changed as to defeat the purpose of the agreement and render its enforcement inequitable. Trustees of Columbia College v. Thacher, 87 N. Y. 311; McClure v. Leaycraft, 183 N. Y. 36; Page v. Murray, 46 N. J. Eq. 325. But these agreements are more properly regarded as creating equitable property rights. See 21 HARV. L. REV. 139. Where such rights exist, equity, having exclusive jurisdiction, has no discretion as to not enforcing them. Nevertheless, the Massachusetts court, in a previous case, denied specific performance and awarded damages. Jackson v. Stevenson, 156 Mass. 496. Cf. Amerman v. Deane, 132 N. Y. 355. Such a decree, although it might be explained on the theory that equity is thus protecting the right while exercising its discretion as to the form of the remedy, is in effect a judicial condemnation of an equitable property right. The principal case abandons this position and is the first decision definitely adopting the more logical view that, when the object of a restrictive agreement can no longer be attained, the restriction ceases to exist. Cf. German v. Chapman, 7 Ch. D. 271, 279; Knight v. Simmonds, [1896] 2 Ch. 294, 297.

TAXATION PARTICULAR FORMS OF TAXATION SUCCESSION TAX: REGISTERED BONDS OF THE TAXING STATE KEPT BY NON-RESIDENT AT HIS DOMICILE. A registered bond of the Commonwealth of Massachusetts was kept by a non-resident at his domicile in New York. Held, that it is taxable under the Massachusetts Succession Tax. Bliss v. Bliss, 109 N. E. 148 (Mass.).

Succession taxes are regarded as taxes not on property, but on the privilege of succeeding to property. Matter of Merriam, 141 N. Y. 479, 36 N. E. 505; Plummer v. Coler, 178 Ú. S. 115. Accordingly it has been held that a state may tax the succession to negotiable bonds owned by residents, even when kept abroad, on the reasoning that the privilege of succession is derived from the law of the owner's domicile. Frothingham v. Shaw, 175 Mass. 59, 55 N. E. 623. On the other hand, it has been laid down that power over the person of the debtor, instead of the creditor, confers taxing jurisdiction over the transfer of the debt. Blackstone v. Miller, 188 U. S. 189. More accurately stated, the correct principle is, that jurisdiction depends upon control of the transfer. In the principal case, since the transfer must be completed by a change of registration, which could be enforced only by resort to the Massachusetts courts, the bond was properly held taxable under the Massachusetts statute. An earlier case has decided that a state cannot levy a succession tax on foreign-owned negotiable bonds of a domestic corporation when kept abroad, a question expressly left open in the principal case. Matter of Bronson, 150 N. Y. 1, 44 N. E. 707.

TROVER AND CONVERSION - EXCHANGE OF SECURITIES BY PLedgee NEED IMPAIRMENT OF PLEDGOR'S SECURITY BE SHOWN? - The defendant loaned money to the plaintiff and took as security a third person's note protected by mortgage. This mortgage he exchanged with the mortgagor for one on another portion of the same premises. Though his security was not impaired by the change, the plaintiff sues for the conversion of the first mortgage. Held, that he cannot recover. Madden v. Condon National Bank, 149 Pac. 80 (Ore.).

That the defendant's dealing with the mortgage was unjustified is clear: holders of collateral security have no right to exchange it with the makers, nor to compromise it. Garlick v. James, 12 Johns. (N. Y.) 146; Depuy v. Clark, 12 Ind. 427; Wood v. Mathews, 73 Mo. 477. But cf. Girard Fire Insurance Co. v. Marr, 46 Pa. St. 504. See contra, COLEBROOKE, COLLATERAL SECURITIES, 2 ed., 26. This being so, what the defendant did amounted to a conversion of the mortgage. Stevens v. Wiley, 165 Mass. 402, 43 N. E. 177. See Brown v.

First National Bank of Newton, 132 Fed. 450, 453. In this country generally a pledgor can sue his pledgee for conversion without tender of the debt. Austin v. Vanderbilt, 48 Ore. 206, 85 Pac. 519; Feige v. Burt, 118 Mich. 243, 77 N. W. 928. See 13 HARV. L. REV. 55. The fact that the pledgee can recoup the pledge debt in damages relieves this rule of any harshness. See Work v. Bennett, 70 Pa. St. 484. But the substitution of something "just as good" for the property converted does not relieve the defendant; once there is a conversion he has not even the right to return the identical article converted. Hamner v. Wilsey, 17 Wend. (N. Y.) 91; Baltimore & Ohio R. Co. v. O'Donnell, 49 Oh. St. 489, 32 N. E. 476; Post v. Union National Bank, 159 Ill. 421, 42 N. E. 976. There should therefore be a right of action. If it be contended that the mortgage was an interest in real estate and hence not the subject of conversion, the fact remains that the defendant has, by destroying that interest without authority, caused the plaintiff serious damage. He cannot satisfy the plaintiff's rightful claim by offering another interest alleged to be as good. See IO HARV. L. Rev. 65.

WAR-CONTRACTS BETWEEN CITIZENS OF BELLIGERENT COUNTRIES JURISDICTION OF NEUTRAL COURTS. Before the declaration of war a German company contracted to sell certain patents to a French company and to construct in New Jersey for them a wireless station embodying these patents. Both countries have statutes forbidding commercial intercourse with alien enemies. Held, that the contract be specifically enforced. Compagnie Universelle de Telegraphie et de Telephonie Sans Fil v. United States Service Corporation, 95 Atl. 187 (N. J.).

An English company sold and delivered coal in Algiers to an Austrian company. Drafts drawn on London were dishonored, because of proclamations forbidding commercial intercourse. Jurisdiction in the United States was obtained by foreign attachment of a ship of the defendant company. Held, that the court will not exercise its jurisdiction. Watts, Watts & Co., Ltd. v. Unione Austriaca di Navigazione, 224 Fed. 188.

At common law, or by statute in continental countries, citizens of belligerent nations are forbidden to engage in commercial intercourse. The Hoop, I Rob. 196; Esposito v. Bowden, 7 El. & Bl. 763. See 4 & 5 GEO. V., c. 87. The effect of this on preexisting contracts is to suspend the remedy; it does not put an end to the contract. Mutual Benefit Life Insurance Co. v. Hillyard, 37 N. J. L. 444; Williams v. Paine, 169 U. S. 55; Ex parte Boussmaker, 13 Ves. Jr. 71. The reason for this rule seems to be solely to prevent a possible advantage to the hostile country, since recovery will be allowed against an alien defendant if he has property which can be attached. McVeigh v. United States, 11 Wall. (U. S.) 259; Robinson & Co. v. Continental Insurance Co. of Mannheim, [1915] 1 K. B. 155. Such a reason has of course no weight in a neutral court. Clearly these statutes have no extraterritorial force so as to be effective in neutral countries. Consequently where the contract was to be performed in the neutral country, the court is justified in giving relief. But where the contract was to be performed outside the neutral country in which relief is sought only because the remedy in the belligerent countries is suspended, the court seems justified in refusing to exercise its jurisdiction. This is in accord with the usual disinclination of courts in admiralty to deal with such contracts between aliens where such a refusal will not cause an injury. See Goldman v. Furness, Withy & Co., Ltd., 101 Fed. 467; The Napoleon, Olcott (U. S.) 208, 215.

WATER AND WATERCOURSES PUBLIC RIGHTS - RIGHT OF CITY TO TAKE WATER FROM NAVIGABLE STREAM. The plaintiff, a lower riparian proprietor on a navigable stream which flows through the defendant city, seeks to enjoin the taking of water from the stream by the city for the use of its inhabitants, and to recover damages for the taking. Held, that on the facts of the case the