offenses. Where, however, as in the principal case, there is a series of acts committed under such similar and peculiar circumstances as to point to the same person as the perpetrator of all, evidence of the accused's connection with the previous acts will be admissible to prove his connection with the act charged. Parker, C. J., in People v. Molineux, 168 N. Y. 264, 344, 61 N. E. 286, 313; Frazer v. State, 135 Ind. 38, 34 N. E. 817. This would seem clearly so where the evidence is introduced to explain the defendant's own statement, referring to the previous occasions and indicating that he had a similar design in mind. See Commonwealth v. Choate, 105 Mass. 451. For this purpose all the testimony of the witness as to what took place on the other occasions when he had watched for the defendant was admissible. But the defendant's statement, "Of course you know I ain't built like other men," was relevant only through the inference to character, and the defendant's disposition to commit the crime charged cannot be shown even by his own admissions. Rex v. Cole, I Phillips, Evidence (4th Am. Ed.) 181; People v. Bowen, 49 Cal. 654; Lucas v. Commonwealth, 141 Ky. 281, 287, 132 S. W. 416, 419. But since there was no specific objection to the admission of this statement, it cannot be taken advantage of on appeal. State v. Stanton, 118 N. C. 1182, 24 S. E. 536; Ray v. Camp, 110 Ga. 818, 36 S. E. 242. See also, 24 HARV. L. REV. 148.

INSURANCE

CONSTRUCTION OF PARTICULAR WORDS AND PHRASES IN STANDARD FORMS STANDARD MORTGAGE CLAUSE AS PROTECTION AGAINST OWNER'S NEGLECT TO FURNISH PROOF OF LOSS. - A mortgagor took out insurance payable to the mortgagee as his interest might appear. The policy provided that "the insured" should furnish proofs of loss within a certain time, and that no act or neglect of the mortgagor should invalidate the mortgagee's right to recover. The mortgagor failed to furnish proofs of loss within the prescribed time. Held, that the mortgagee's recovery is not barred by this neglect. Riddell v. Rochester German Ins. Co., 89 Atl. 833 (R. I.).

If the mortgagee's right is not protected by a provision in the policy, it will be defeated by any act or neglect which invalidates the mortgagor's contract. Baldwin v. Phoenix Ins. Co., 60 N. H. 164; Shapiro v. Western Home Ins. Co., 51 Minn. 239, 53 N. W. 463. The standard mortgage clause has sometimes been interpreted as making the mortgagee a peculiarly privileged beneficiary of the contract with the mortgagor. See 23 HARV. L. REV. 311. Under this analysis any misconduct of the mortgagor which rendered the contract void in its inception, would prevent any right in the mortgagee from arising. Hanover Fire Ins. Co. v. Nat. Ex. Bank, 34 S. W. 333 (Tex. Civ. App.). But the purpose of the clause was to protect the mortgagee against misconduct of the mortgagor at the inception as well as during the existence and after the termination of the risk. See Syndicate Ins. Co. v. Bohn, 65 Fed. 165, 176, 177. This result is achieved by the weight of authority, on the theory that the clause creates a separate contract of insurance with the mortgagee. Magoun v. Fireman's F. Ins. Co., 86 Minn. 486, 91 N. W. 5; Bacot v. Phoenix Ins. Co., 96 Miss. 223, 50 So. 729. It would seem further that the mortgagee is not "the insured" within the meaning of the clause, requiring proof of loss in a specified time. The duty would be highly unreasonable if imposed upon one who might not know that there had been a fire until after the expiration of the period set. This, as the principal case holds, is one of the neglects against the effect of which the mortgagee's contract protects him. He should be entitled to recovery on proof of loss in a reasonable time after learning of it. See Union Institution for Savings v. Phoenix Ins. Co., 196 Mass. 230, 235, 81 N. E. 994, 996.

INTERSTATE COMMERCE CONTROL BY STATES REGULATION OF INTERSTATE SHIPMENT OF INTOXICATING LIQUORS: WEBB-KENYON ACT.- In a suit

in equity to enjoin an express company "from transporting . . . or distributing liquors contrary to law" it was found that beer was shipped at various times via the defendant carrier from Illinois to a consignee in Iowa who did not hold a permit to sell intoxicants. An Iowa statute prohibits express companies, etc., to transport liquor to persons not holding permits. It was conceded that unless the Webb-Kenyon Act (which prohibits the transportation of liquors into a state to be used in violation of state laws) was constitutional, the petition for injunction must fail. Held, that the injunction should be granted. State v. U. S. Express Co., 145 N. W. 451 (Iowa).

It is well settled that the Wilson Act, by which Congress deprived a shipment of liquor of its interstate character upon delivery to the consignee, is constitutional. In re Rahrer, 140 U. S. 545. But this Act does not apply until delivery by the carrier to the consignee has been completed. Rhodes v. Iowa, 170 U. S. 412; Heymann v. Southern R., 203 U. S. 270. Adequate prevention of illegal selling may reasonably require regulation and restriction of transportation. Cf. Louisville, etc. R. v. Cook Brewing Co., 223 U. S. 70. The Webb-Kenyon Act, entitled "An Act divesting intoxicating liquors of their interstate character in certain cases," purports to remove the last barrier to placing the complete control of the liquor traffic under the local police power. See 6 ME. L. REV. 292; 20 CASE AND COMMENT 448. The principal case assembles the arguments in favor of its constitutionality. It has been held to be constitutional in State v. Grier, 88 Atl. 579 (Del.). It is no more a delegation of power than was the act "forbidding the transportation of free negroes from one state to another where they were forbidden to reside"; 2 STAT. 205; or the act forbidding "the transportation of game killed in violation of local laws"; Rupert v. United States, 181 Fed. 87. See also 14 COL. L. REV. 321. Whether, in the absence of knowledge by the carrier of an intended illegal use by the consignee, the carrier has "an interest" in the shipment within the act, so that the transportation may be restricted, is subject to conflicting opinions. But the better view holds that the act includes the consignor, common carriers, and other transporting agencies." State v. Grier, supra; 77 CENT. L. J. 437. Contra, Adams Express Co. v. Commonwealth, 157 S. W. 908 (Ky.). It has been held that the state legislation need not be reënacted to secure the benefits of the Wilson Act. Commonwealth v. Calhane, 154 Mass. 115, 27 N. E. 881; In re Rahrer, supra. The principal case seems correct in applying this analogy to the Webb-Kenyon Act. Contra, Atkinson v. Southern Express Co., 78 S. E. 516 (S. C.). For a thorough discussion of the principles involved in the situation presented by the principal case, see 26 HARV. L. REV. 78 and 533.

LANDLORD AND TENANT

- CREATION OF TENANCY FROM YEAR TO YEAR

- HOLDING OVER by Receiver.- The defendant was appointed receiver of a lessee company. He went into possession, paying rent in the stipulated installments, and continued to occupy the premises, and to pay rent, for seven months after the expiration of the term. Held, that only a tenancy at will was thereby created. Dietrick v. O'Brien, 89 Atl. 717 (Md.).

A holding over by a tenant after the expiration of a lease may be either an unlawful act or the result of a new agreement. If the former, it is generally recognized that the landlord has an option to regard the tenant either as a trespasser, or as a tenant from year to year. Hall v. Myers, 43 Md. 446; Parker v. Page, 41 Ore. 579, 69 Pac. 822. Contra, Edwards v. Hale, 9 Allen (Mass.) 462. This tenancy is imposed by law irrespective of the consent or intent of the tenant. Conway v. Starkweather, 1 Den. (N. Y.) 113; Cavanaugh v. Clinch, 88 Ga. 610, 15 S. E. 673. If, however, the holding over is in accordance with a new agreement, the new tenancy is only presumptively a periodic one, and its real terms, as well as its existence, are to be determined

by the actual intent of the parties, subject to the provisions of the Statute of
Frauds. Pusey v. Presbyterian Hospital, 70 Neb. 353, 97 N. W. 475; White
v. Sohn, 63 W. Va. 80, 59 S. E. 890; cf. Bradley v. Slater, 50 Neb. 682, 70 N. W.
258. It is submitted that even when the holding over is unlawful, the actual
intent of the tenant, as evidenced by circumstances, should operate to nega-
tive any option in the landlord. Extreme cases have sometimes led to the
practical recognition of this. Herter v. Mullen, 159 N. Y. 28, 53 N. E. 700.
In the principal case, moreover, the lessor accepted rent from the defendant
with knowledge that the latter, as receiver, would have no desire to prolong
the tenancy beyond the indefinite period necessary for the winding up of the
business. From these acts it is clearly possible to infer a new agreement.
Withnell v. Petzold, 17 Mo. App. 669; Abeel v. McDonnell, 39 Tex. Civ. App.
453, 87 S. W. 1066. Therefore, whether the holding over be regarded as lawful
or unlawful, the decision in the principal case seems correct.

PETITIONS FOR

LIBEL AND SLANDER - PRIVILEGED COMMUNICATIONS
PARDON. A petition to the governor for a pardon contained the words, "The
judge changed the venue of the case for the purpose of making the costs ex-
cessive." Held, that the publication is absolutely privileged. Connellee v.
Blanton, 163 S. W. 404 (Tex. Civ. App.).

For discussion of the question raised see NOTES, p. 745.

LIENS - GARAGE-KEEPER'S RIGHT TO LIEN FOR MAINTENANCE OF MOTOR-
CAR. The keeper of a garage agreed with the owner of a motor-car to keep
it in his garage, furnish a chauffeur, and maintain it in repair. The car was
at the owner's disposal. Held, that the keeper of the garage has no lien for his
charges. Hatton v. The Car Maintenance Co., 30 T. L. R. 275 (Chan.).

A common-law lien will attach to a chattel only when it has been improved
by the labor and skill of the bailee. Chapman v. Allen, Cro. Car. 271. No lien
then attaches in the principal case for the storage or for the services of the
chauffeur. And since the incidental repairing was simply to maintain the
chattel at the same standard, no lien attaches for that. Miller v. Marston, 35
Me. 153. However, by statute in America generally, a livery stableman is
given a lien for the keep of animals. See I JONES, LIENS, § 646 et seq. It is
submitted that the position of the garage owner is analogous, and affords
a proper subject for legislation. See CONSOL. LAWS N. Y., LIEN LAW, § 184.
The provision that the owner might take possession at any time is generally
considered inconsistent with the existence of a lien at common law. Forth v.
Simpson, 13 Q. B. 680; Smith v. O'Brien, 46 N. Y. Misc. 325, 94 N. Y.
Supp. 673. But since this right is usually granted in contracts with livery
stablemen or garage keepers, such a rule would practically nullify statutes
giving them a lien. Accordingly, the statutory lien should exist in spite of this
right. Young v. Kimball, 23 Pa. 193; Heaps v. Jones, 23 Mo. App. 617. The
lien holder's rights, however, could not be set up to defeat the rights of third
parties accruing while the owner was in actual possession. Thourot v. Dela-
haye Import Co., 69 N. Y. Misc. 351, 125 N. Y. Supp. 827; Vinal v. Spofford,
139 Mass. 126.

-

MASTER AND SERVANT - EMPLOYERS' LIABILITY ACTS - EFFECT OF Eco-
NOMIC PRESSURE ON VOLUNTARY ASSUMPTION OF RISK. · An employee com-
plained of the defective condition of a certain appliance, and was told to use
it or quit. He continued to work, and was injured. In an action under the
Federal Employers' Liability Act, held, that whether the assumption of risk
was voluntary was a question of fact for the jury. New York, N. H., & H. Ry.
Co. v. Vizvari, 210 Fed. 118 (Civ. Ct. App., 2nd Circ.).

The overwhelming weight of American authority holds that a servant who

continues his employment with knowledge of unusual dangers caused by the
employer's negligence, without receiving a promise to remove them, has as a
matter of law, voluntarily assumed the risk. Lamson v. American Axe &
Tool Co., 177 Mass. 144, 58 N. E. 585; St. Louis Cordage Co. v. Miller, 126
Fed. 495; but see 27 HARV. L. Rev. 284. In England, however, whether or
not the assumption was voluntary is a question of fact for the jury. Smith v.
Baker, [1891] A. C. 325. And the jury may take into account the economic
pressure on the servant caused by fear of losing his position. Yarmouth v.
France, 19 Q. B. D. 647. See Walsh v. Whiteley, 21 Q. B. D. 371, 374. In
adopting both phases of the English view, the principal case marks a material
departure from previous federal decisions. McPeck v. Central Vt. Ry. Co., 79
Fed. 590. Under Section 4 of the Federal Employers' Liability Act, if the em-
ployer's negligence consists in the breach of a statutory duty, the defense of
assumption of risk is expressly excluded. U. S. COMP. STAT. SUPP. 1911, p.
1323. But where, as in the principal case, the negligence violates no statute,
there has been some conflict as to whether or not the defense is still available.
A recent United States Supreme Court decision, however, settled the dispute
in favor of allowing the defense. Seaboard Air Line Ry. v. Horton, U. S. Sup.
Ct. No. 691, April 27. See cases collected in 47 L. R. A. N. S. 38, 62. The
decision in the principal case, however, will certainly reduce its application
to a minimum, for as a practical matter the employee's assumption of risk
will seldom be found truly voluntary.

MASTER AND SERVANT

-

WORKMEN'S COMPENSATION ACT - INJURY OC-
CURRING IN THE COURSE OF AND ARISING OUT OF EMPLOYMENT. - The
deceased was engaged as a seaman under articles in which the Board of Trade
compulsory scale of diet was struck out, and a provision that the crew should
provide their own provisions substituted. The deceased went ashore for pro-
visions and was drowned while returning. Held, that the accident did not
arise out of the employment since there was no contractual obligation that
deceased should provide his food. Parker v. Owners of Ship Black Rock, 136
L. T. J. 375 (Ct. App., Feb., 1914).

The deceased was employed as drayman continuously from eight A.M. till
eight P.M., with no interval for meals. He left his team to get a glass of beer,
and was killed by a motor car while returning. Held, that the accident arose
out of the employment, since thus leaving the team was a reasonable incident
thereof. Martin v. Lovbond & Co., 136 L. T. J. 402 (Ct. App., Feb., 1914).

The English cases have generally held an accident to arise "out of" the
employment when it results from a risk incidental to the employment as dis-
tinguished from a risk common to all mankind. See 27 HARV. L. REV. 390.
A sailor who must depend upon his own efforts to secure food seems, because
of his employment, peculiarly subject to the risks attendant on going ashore.
More doubtful is the unique character of the risk incurred by the drayman of
injury from passing motor cars. It is, however, a risk incidental to his employ-
ment, and the more likely to happen by reason of the same; and allowing re-
covery seems fully in accord with the spirit of the legislation. For discussion of
this question see article by Professor Bohlen in 25 HARV. L. Rev. 328–348,
401-427, 517-547.

-

MASTER AND SERVANT - WORKMEN'S COMPENSATION ACTS- - WHETHER
OCCUPATIONAL DISEASE IS A "PERSONAL INJURY." - As the result of con-
tinuous exposure to furnace gases in the course of his employment, the plaintiff
contracted a disease which destroyed his eyesight. The Workmen's Compen-
sation Act provided for compensation for "personal injury arising out of and
in the course of the employment." Held, that the plaintiff is entitled to com-
pensation. In re Hurle, 104 N. E. 336 (Mass.).

The principal case decides an important practical question. At common
law, disease or injured health would sustain an action for personal injury if
the other elements of tort liability were present. Hunt v. Lowell Gas Light
Co., 8 Allen (Mass.) 169. Accordingly, under the English Workmen's Com-
pensation Act, a disease caused by the employment where there has been no
perceptible contact, has been held to fall within the definition of personal
injury. Brintons v. Turvey, [1905] A. C. 230. The phrase "by accident," con-
tained in the English statute, has led to a qualification that the injury must be
sustained on a particular occasion, the date of which can be fixed. Brod-
erick v. London County Council, [1908] 2 K. B. 807. In the absence of such
words it would seem correct to permit recovery, as in the principal case, for a
disease of gradual growth caused by the conditions of the employment.

-

MORTGAGES - TRANSFER OF RIGHTS AND PROPERTY — WHETHER RELA-
TIVE OF MORTGAGEE BUYING FROM PURCHASER WITHOUT NOTICE IS
RELEGATED TO MORTGAGEE'S POSITION. -The defendant church corpora-
tion gave the plaintiff a mortgage on certain property which was not
recorded. A subsequent mortgage was given by the church, covering that
property, and by certain members, covering their own property. This later
mortgage was recorded and assigned to a bona fide purchaser who had no
knowledge of the prior unrecorded mortgage. He later assigned to the other
defendants, the brother and wife respectively of the mortgagor members.
These assignees, without consideration, released the property of the members
covered by the mortgage. Held, that the holder of the prior unrecorded
mortgage, in preference to the holder of the recorded mortgage, may exact
full payment of his mortgage debt out of the church property. Rogis v.
Barnatowich, 89 Atl. 838 (R. I.).

The policy of recording statutes is to avoid unrecorded instruments only
as against third parties without notice. National Mut. Building & Loan
Ass'n v. Blair, 98 Va. 490, 36 S. E. 513. Accordingly, an unrecorded mortgage
prevails against a subsequent recorded mortgage held by one with notice.
Matthews v. Everitt, 23 N. J. Eq. 473. But it seems that the well-established
proposition, that one who takes with notice is protected by the good faith of
his assignor, should apply in the principal case. Lowther v. Carlton, 2 Atk.
242; see Mott v. Clark, 9 Pa. St. 399, 404; Rutgers v. Kingsland, 7 N. J. Eq.
178, 184. The court argues that this doctrine has no application here because
of the equally well-recognized principle that one subject to an equity cannot
better his position by re-acquiring through a bona fide purchaser. Church
v. Church, 25 Pa. St. 278. But it is submitted that the mere fact of close
relationship is not enough, that to create this situation, the reassignment,
though nominally to a stranger, must be in substance to the party formerly
holding with notice. The decision can, however, be rested on the doctrine
of marshalling assets. Granting that the individual defendants are in the
position of bona fide purchasers so as to give their mortgage priority, yet, in
releasing their exclusive security with knowledge that the remaining security
was probably insufficient to satisfy both claims, they have knowingly de-
prived the plaintiff of an equitable right to marshall them against the property
so released. It is only fair, therefore, that their prior rights in the church
property should be postponed to those of the plaintiff. Jordan v. Hamilton
County Bank, 11 Neb. 499, 9 N. W. 654; Gore v. Royse, 56 Kan. 771, 44 Pac.
1053. See 18 HARV. L. REV. 453.

PARDONS EFFECT - FEDERAL PARDON AFTER FIRST CONVICTION NOT
PREVENTING SUBSEQUENT CONVICTION AS SECOND OFFENDER. A statute
provided that one who was twice convicted of felony should, upon a second
conviction, suffer an increased penalty. The defendant received a pardon from