71 Ga. 14. See Peck v. Williams, 113 Ind. 256, 260. Such a lien is merely a remedy to prevent unjust enrichment. See Arnold v. Porter, 122 N. C. 242, 244, 29 S. E. 414, 416. No doubt the co-tenant out of possession has a personal claim against the other for his proportionate share of the proceeds. Cutler v. Carrier, 54 Me. 81. But these rents and profits spring out of the common estate, and the claim for them is so closely connected with the land that it seems more just that a preference be given as to this land over the other co-tenant's general creditors. The reasoning is analogous to that on which a vendor's lien is based. In the same way in owelty of partition by giving an equitable lien on the purport. Baltimore & Ohio R. v. Trimble, 51 Md. 99. It is submitted therefore that a lien should be given here. But as the lien is imposed only in equity, the mortgage should be preferred. McArthur v. Scott, 31 Fed. 521. One court argues that the mortgagee takes with constructive notice of the rights of the co-tenant, and so is postponed. See McCandless' Appeal, 98 Pa. 489, 494. But it seems unjust to charge one with notice of a lien unrecorded, the very existence of which may be impossible for the mortgagee to discover due to his inability to learn the state of accounts between the co-tenants, which may not even be known to themselves. The Missouri and Indiana courts, in saying (Beck v. Kallmeyer, supra, Peck v. Williams, supra) that each co-tenant, being seized per my et per tout, holds a contingent interest in the entire title which neither can encumber until their equities are adjusted, allow what is substantially a legal lien, although speaking of it as an equitable lien. This is open to the same objection of public policy against giving preference to a right of so indefinite a nature. The result of the principal case, therefore, seems correct.

TORTS UNUSUAL CASES OF TORT LIABILITY - APPLICATION OF RULE OF FLETCHER v. RYLANDS TO ACTS UNDER PUBLIC FRANCHISE. The defendant maintained high pressure water mains in the public streets under a private act of Parliament providing that nothing in the act should exempt the company from liability for any nuisance caused by it. The plaintiff's electric cables under the same streets were damaged by the bursting of the defendant's mains without negligence on the part of the defendant. Held, that the defendant is liable for the damage. Charing Cross, etc. Electricity Supply Co. v. London Hydraulic Power Co., [1913] 3 K. B. 442.

In England, and in those American jurisdictions accepting the doctrine of Fletcher v. Rylands, a landowner is not held absolutely liable for damages resulting from non-natural and hazardous user of land in undertakings conducted under express public authority, apparently on the ground that the legislature contemplated possible damage and condoned it by anticipation. National Telephone Co. v. Baker, [1893] 2 Ch. 186; Lake Shore & M. S. Ry. Co. v. Chicago, L. S. & S. B. Ry. Co., 48 Ind. App. 584, 92 N. E. 989. A sound basis for these cases, however, seems to be that the public interest in the undertakings makes unwise the application to them of the exceptional doctrine of Fletcher v. Rylands. Where, however, as in the principal case, the words of the statute expressly negative the company's exemption from liability for any nuisance, the courts have held the company responsible, regardless of negligence, for damages caused by the hazardous user. Midwood & Co., Ltd., v. Manchester Corporation, [1905] 2 K. B. 597. Though it is doubtful if the word "nuisance" can be construed to cover what is not nuisance at all, it is apparent from the history of the cases that the legislature intended to hold the company to a strict liability and hence inferentially abrogated the rule that the public interest makes the doctrine of Fletcher v. Rylands inapplicable. The fact that the parties in the principal case are not adjoining landowners but co-users of the highway affords no basis for distinguishing this case from Fletcher v. Rylands, since both the plaintiff and the defendant have undoubted rights in the land, and the hazard

ous user by one has caused interference with the rights of the other. See National Telephone Co. v. Baker, [1893] 2 Ch. 186, 199.

TORTS

- UNUSUAL CASES OF TORT LIABILITY - PRICE CUTTING AS A TORT. A department store owner, for the purpose of injuring a selling agent in his business, advertised with fraudulent representations sewing machines at half price. Held, that the defendant's conduct is actionable as a malicious injury to the plaintiff's business under the guise of simulated competition. Boggs v. Duncan-Schell Furniture Co., 143 N. W. 482 (Ia.).

For a discussion of price cutting as a tort, see NOTES, p. 374.

TRADE MARKS AND TRADE NAMES PROTECTION APART FROM STATUTE TERRITORIAL LIMITATION ON TECHNICAL TRADE MARK. — The plaintiff had established a market for flour in certain states under a technical trade mark. The defendant, afterward, in good faith, used the same trade mark in territory in which the plaintiff's flour is yet unknown. The plaintiff seeks to enjoin the further use of the mark in this territory. Held, that an injunction will not be granted. Hanover Star Milling Co. v. Allen & Wheeler Co., 208 Fed. 513 (U. S. C. C. A., 7th Cir.).

A technical trade mark, as distinguished from a trade name, is purely arbitrary with reference to the article to which attached, and not simply indicative of its class, description, or place of manufacture, or of the manufacturer's or vendor's name. See HOPKINS ON TRADE MARKS, § 3. Certain cases not too well considered appear to hold that a right to such a mark acquired in one locality may be enforced in any other locality, regardless of the extent of actual good will attaching to the mark. Derringer v. Plate, 29 Cal. 292; Kidd v. Johnson, 100 U. S. 617; Hygeia Distilled Water Co. v. Consolidated Ice Co., 144 Fed. 139. It is submitted, however, that the principal case is sound in reasoning that protection is extended a trade mark in order to guard the good will with which the mark is identified, rather than the mark alone; and that where a plaintiff's wares are unknown he has nothing to protect. Furthermore, this is the doctrine applied to trade names, and there seems no reason for distinguishing trade marks from trade names in this connection. See Briggs v. National Wafer Co., 102 N. E. 87 (Mass.), discussed in 27 HARV. L. REV. 190.

TRUSTS NATURE OF THE TRUST RELATION - DEPOSIT IN BANK FOR SPECIFIC PURPOSE. - The plaintiff administrator deposited funds in a bank, and took the following receipt: "To be held until vouchers are received from heirs. Then same to be forwarded by bank draft." The bank having failed, he now sues for the money as a trust fund. Held, that he may recover. Carlson v. Kies, 134 Pac. 808 (Supreme Wash.).

The principal case illustrates the close questions of fact that arise in distinguishing between a general and a special deposit. The decision seems hard to support, inasmuch as banking convenience requires every deposit to be considered general unless the parties expressly contracted that the money be held separate as a trust res. Nichols v. State, 46 Neb. 715, 65 N. W. 774. In re Mutual Building Soc., Fed. Cas. No. 9,976. Nothing appears in the receipt to clearly negative the bank's presumptive right to mingle. On the contrary, it is a necessary inference from the expressed intention that the money should ultimately be forwarded by bank draft. See 12 HARV. L. REV. 221; 27 HARV. L. REV. 191.

WITNESSES

PRIVILEGED COMMUNICATIONS

HUSBAND AND WIFE: LET

TER RECEIVED AFTER HUSBAND'S DEATH NOT PRIVILEGED UNDER STATUTE PROTECTING COMMUNICATIONS DURING MARRIAGE. - In a suit on an insurance

policy the defendant company sets up as a defense that the deceased committed suicide. Papers written by deceased to his wife and found by her after his death, in which he gave directions testamentary in nature, were admitted over the plaintiff's objection that they were confidential communications between husband and wife. Held, that they were properly admitted. Whitford v. North State Life Ins. Co., 79 S. E. 501 (N. C.).

The principal case is based on a statute that speaks of "communications made by one to the other during marriage," practically the statement of the common-law rule. The interpretation that a communication is not made during marriage because it does not become known to the other party till after the death of the sender seems a narrow construction of the rule, possible only in a court with a decided dislike for this privilege. The fact that the reason often given for the rule, namely, the protection of the marriage relationship (see 4 WIGMORE, EVIDENCE, § 2332), is not present in the principal case, cannot be appealed to in support of denying the privilege, for the attempt to use this as a test would carry one too far in breaking down the privilege. The case is interesting as it seems to be one of first impression.

BOOK REVIEWS.

CASES AND OPINIONS ON INTERNATIONAL LAW AND VARIOUS POINTS OF ENGLISH LAW CONNECTED THEREWITH. Collected and Digested from English and Foreign Reports, Official Documents and other Sources, with Notes containing the Views of the Text-Writers on the Topics referred to, Supplementary Cases, Treaties, and Statutes.

PART II. WAR.

PART III. NEUTRALITY.

By Pitt Cobbett. London: Stevens and Haynes. 1913. pp. xxxii-547.

The above comprehensive title-page is descriptive of the book. This title is condensed on the outside cover to Leading Cases on International Law, Pitt Cobbett, Part II. War, Part III. Neutrality. Third Edition.

The treatment of Parts II and III relating to war and neutrality is distinctly superior to that of Part I, relating to peace. (See review, 23 HARV. L. REV. 653.) Not merely is the general treatment superior, but the cases better illustrate the principles discussed and are generally more modern. The book shows clearly the progress toward conventionalization of international law, particularly as relates to war and neutrality. The issue of the book was delayed by the uncertainty of the action of Great Britain on the International Prize Court Convention of 1907 and the Declaration of London of 1909, action which is still uncertain. Many cases which were regarded as authoritative at the end of the nineteenth century have become in the early days of the twentieth century merely of historical interest, because of the general acceptance of conventions. There are also many new names among the cited cases. The Spanish-American, South African, and Russo-Japanese wars furnished new precedents. Indeed the book opens with a presentation of the controversy between Russia and Japan in 1904 in regard to the necessity of notice prior to opening of hostilities. The Hague Convention, 1907, No. 3, relative to the Opening of Hostilities, Article I, is discussed as if translated "the Contracting Powers recognize that hostilities between them ought not to commence without a previous and explicit warning," etc. In the appendix where the Convention is given, the more approved translation is followed, viz.: "that hostilities must not commence,” etc.

The argument for the determining of "enemy character" by domicile rather than by nationality is excellently presented. There is a recognition of international servitudes which some recent writers have hastily presumed to disregard.

Naturally the much-discussed Article 23 (h) of the Hague Convention relative to the Laws and Customs of War on Land receives attention. Article 23 (h) states that it is forbidden "to declare extinguished, suspended, or unenforceable in law, the rights and rights of action of enemy subjects." The German and British interpretation of this article are opposed, and other interpretations are at variance with both. One fact is evident: the next Hague Conference should make the article clear. In general the Anglo-American point of view is supported in the discussion of the effect of war on commercial relations. The provisional and unsatisfactory character of some of the Hague Conventions of 1907, e. g. the Convention relative to Submarine Mines, is made plain, but the rapid development from custom to code with provision for compensation or other penalty in case of violation is not overlooked.

The modern recognition of the rights of aliens is evident in many provisions, but the exclusion of claims for indirect and for consequential damages seems to be generally accepted. The extension of the doctrine of internment to war upon the sea and to vessels of war delaying beyond the conventional period in a neutral port is another of the principles which has been recognized in the twentieth century. There is a full and frank acceptance of the category of "unneutral service" which some authors were disinclined to accept a few years ago. The names of cases suggest the recent precedents in international law. Kowshing, Ryeshitelni, Manjur, Terek, Lena, Askold, Haimun, QuangNam, mingle with the well-known General Armstrong, Peterhoff, and Trent.

Of the Declaration of London, 1909, the author says that it is likely "to become in a great measure the standard of international action in the future." This statement gains ample support from the fact that the provisions of the Declaration of London are now generally introduced into the instructions issued by various states for the government of their naval forces in their relations to neutrals.

While the references to authorities are generally satisfactory, yet in some cases the references are not to latest editions, as of Calvo, Halleck, Heffter, Lawrence, Nys.

Appendices contain the text of most of the Hague Conventions of 1907 and the Declaration of London of 1909. The Index, which is otherwise good, does not refer to these pages.

G. G. W.

CANADA'S FEDERAL SYSTEM. By A. H. F. Lefroy. Toronto: The Carswell Company. 1913. pp. lxviii, 898.

This is an interesting commentary on the British North America Act, 1867, and supplemental acts. The Act differs from ordinary constitutions in that it was not adopted directly or indirectly by the persons whom it governs, and in that it may be amended or repealed precisely as any other statute of the British; but nevertheless, as it is an organic act creating an elaborate system of government for a vast region, it may even be termed, as it sometimes is termed, the Constitution of Canada. It differs greatly from the Constitution of the United States. The very form and phraseology remind the reader of a statute, and not at all of a constitution. Hence it is no surprise to fail to find the familiar provisions of the Constitution of the United States. When one looks below the surface, the difference between the legislative powers created by these two instruments the two instruments governing almost the whole of one continent becomes still more striking. Although in each instance we find a Federal Government and State or Provincial Governments, nevertheless in

Canada the position of the Federal Government differs essentially from the position of the Federal Government in the United States. As the author says, "the possession by the Federal Government of the veto power over provincial legislation is one of those special features of the Constitution of the Dominion which distinguishes it from the Constitution of the United States of America." Elsewhere the author explains that in the British North America Act are not contained our familiar provisions as to eminent domain, bills of attainder, ex post facto laws, and laws impairing the obligation of contracts. All these diversities, and other points of interest, may be found in paragraphs 12, 24, 31-33, and 51-53, and on pages 30-44, 84-85, 101, 125, 230, 394, 417, and 742-758. These references will enable any one to gain from the book a quick perception of the peculiarities of the Canadian system, from the point of view of the United States. The necessary documents, including the British North America Act, 1867, are given in an appendix, and on pages 787-791 may be found sections 91 and 92, which are the principal passages of that Act which show the respective powers of the Dominion and of the Provinces.

Although a commentary on the British North America Act, 1867, unlike a commentary on the Commonwealth of Australia Constitution Act, 1900, cannot cite many cases from the United States and cannot much resemble a commentary on our own Constitution, nevertheless this volume should attract attention in the United States, since it is a lawyer-like piece of work and serves excellently the desirable end of presenting clearly the governmental system of neighbors with whom our relations are constantly growing more intimate.

NATIONAL SUPREMACY: TREATY POWER v. STATE POWER. By Edward S. Corwin. New York: Henry Holt and Company. 1913. pp. viii, 321. There are so few books dealing with the border-land between International Law and Constitutional Law that this volume must be welcomed. Near the beginning (p. 8) the author draws clearly the distinction between holding that a treaty is "legally binding upon the United States as a person at International Law" and holding that it is "legally binding upon all individuals and things subject to the jurisdiction of the United States." The discussion of this distinction is presented so well as to arouse an expectation that the whole volume may be a useful contribution. Yet the remainder of the volume is principally devoted to familiar generalities and almost equally familiar quotations from judicial opinions; and when the author does deal with concrete problems, as in the instance of the Japanese difficulties in California (Chapter VIII), the discussion is inadequate and unconvincing.

PRINCIPLES OF THE LAW OF PERSONAL PROPERTY. Intended for the Use of Students in Conveyancing. By the late Joshua Williams. The Seventeenth Edition, by his son, T. Cyprian Williams. Toronto: The Carswell Company.

1913.

The treatises on the Law of Real Property and on the Law of Personal Property by that master of the Common Law, the late Mr. Joshua Williams, as edited by his accomplished son, have for their accuracy, lucidity, and felicity of expression won the despairing admiration of legal text-writers. The present edition sustains the reputation of its predecessors.

The mass of Victorian legislation affecting the Law of Personal Property is great, and has of course to be taken account of by Mr. Williams. Many pages of this edition have, therefore, no direct application on America, but there is much besides that has a real and lasting value here. J. C. G.