particularly enumerated powers only; a denial of the existence of any unwritten part of our great fundamental charter. It declares, in effect, we ignore the law of nations, of self-preservation, of self-development, and the inherited and inherent principles of English law and liberty which run in our blood-unless they are expressly enumerated in the written Constitution.

It is largely based upon the grave historical error that the people of this country were in no sense a nation until made one in 1789, by the Constitution of 1787. It ignores the fact that nearly all publicists agree that the real birth of this nation occurred at and by the Declaration of Independence, thirteen years before the Constitution went into operation.

The Continental Congress, beginning in 1774, its officers and committees, and the loose government under the Articles of Confederation carried on the business of a nation's government, waging war, making treaties, and exercising other customary national functions, from 1774 to 1789, when the Constitution

took effect.

tive declaration, "to the States or to the people," should not be held to be in derogation of any powers inherent in sovereign nationality, or which has been exercised by the national government, in the preconstitutional period of fifteen years, from 1774 to 1789.

It is proper to add that the counsel who presented the case clearly merited the compliment of the court for "much ability." It is also true that the line of thought which I have indicated was not presented in behalf of the intervenor.

JOSEPH CULBERTSON CLAYTON.

New York, June, 1907.

: 0:

Among the Late Decisions.

The jurisdiction of equity of a suit to restrain repeated acts of trespass upon plaintiff's dooryard for the purpose of erecting and maintaining a fence there, under its power to prevent a multiplicity of inadequate actions at law for trespass, is sustained

66 The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association, in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetuated, by the Articles of Confederation in 1778. And, finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was to form a more perfect Union."

Does it not seem strange that this great court should now deny that nationality existed prior to 1789?

The court bases its doctrine, mainly, on four grounds:

(1) The error that the Constitution of 1787 made the nation.

(2) That, because certain powers were particularly enumerated, therefore there were no other powers; and thus excludes from our national sovereignty every other power inherent in every other government.

(3) Because there is provision for amendment, therefore the difficulty and tedious process of amendment must always be adopted where there is no clear and express power to meet a grave national exigency.

This would rob the court of any authority to deduce an implied power, or to make any interpretation except that which is merely philological. There never yet has been any needful amendment.

(4) The doubtful and narrowing Tenth Amendment, declaring that the powers not delegated to the United States were reserved to the States or to the people.

But "sound construction" says that this alterna

An elaborate note to this case reviews the other authorities on injunction to compel or prevent the erection, maintenance or removal of fences or gates.

The jurisdiction of equity to restrain acts of trespass on lands in another State, where the principal fact involved, and upon which the right to exercise the restraint depends, is that of title to the land, is denied in Columbia National Sand Dredging Co. v. Morton (App. D. C.), 7 L. R. A. (N. S.) 114, though the necessary parties are properly before the court.

The right of the State of Georgia to an injunction to restrain foreign corporations from so discharging sulphurous fumes from their works in Tennessee so as to pollute the air over large tracts of territory in Georgia and to cause and threaten wholesale damage to forests and vegetable life therein, if not to health, is sustained in Georgia v. Tennessee Copper Co., Advance Sheets U. S. 1907, p. 618.

Death from suicide which springs from an insane impulse of a disordered or insane mind is held, in Tuttle v. Iowa State Traveling Men's Asso. (Iowa), 7 L. R. A. (N. S.) 223, to be through external, violent and accidental means within the meaning of an accident insurance policy.

A by-law of an insurance company that the mailing of notices of assessment may be conclusively shown by the certificate of an officer of the corporation, who is not required to be personally cognizant of the fact, is held, in Duffy v. Fidelity Mut. L. Ins. Co. (N. C.), 7 L. R. A. (N. S.) 238, to be unreasonable and void.

The mere mailing of a notice properly addressed

and stamped is held, in Kavanaugh v. Security Trust & L. Ins. Co. (Tenn.), 7 L. R. A. (N. S.) 253, not to be, in the absence of a statute or contract provision, a compliance with a custom to give notice of the maturing of a note given for an insurance premium, where the letter never reaches its destination, although the custom has been to give notice by mail.

The right of one made beneficiary in a mutual benefit certificate as a dependent of assured, to receive the proceeds of the certificate, is held, in Murphy v. Nowak (Ill.), 7 L. R. A. (N. S.) 393, to cease upon her marrying and securing means of support other than the assured, prior to his death, where by the laws of the order the fund can be paid only to dependents of deceased members.

The exclusion of suicide as a defense in suits on policies of life insurance, unless such suicide was contemplated at the time application was made for the policy, is held, in Whitfield v. Aetna L. Ins. Co., Advance Sheets U. S. 1907, p. 578, to be a legitimate exertion of power by the State.

The testimony of a witness that he bought from one accused of selling intoxicating liquors a beverage called "lager beer" is held, in Potts v. State (Tex. Crim. App.), 7 L. R. A. (N. S.) 194, not to be sufficient to sustain a conviction.

A final decree of a Federal circuit court in favor of defendant in a patent infringement suit is held, in Kessler v. Eldred, Advance Sheets U. S. 1907, p. 611, to entitle him to continue the business of manufacturing and selling throughout the United States the alleged infringing article, free from all interference by the complainant by virtue of the patent alleged to have been infringed.

A judgment sustaining a demurrer to the petition in an action by a creditor of a national bank against the directors, because the court was of the opinion that the petition only stated a right to recover for violations of the national bank act, causing damage to the bank as such, the right to recover for which was an asset of the bank enforceable only by its receiver is held, in Yates v. Utica Bank, Advance Sheets U. S. 1907, p. 646, not to be a bar to a recovery in another action between the same parties, under a petition which sets up a right to recover for the individual loss, as distinct from the right of the bank.

A decree cancelling a lease, made by consent of the lessee's administrator and representatives of the lessor in proceedings to which a sublessee is not a party, is held, in Mitchell v. Young (Ark.), 7 L. R. A. (N. S.) 221, not to affect his right under the sublease.

The defense of laches, though not applying, as a general rule, to an express trust, is held, in Newman

v. Newman (W. Va.), 7 L. R. A. (N. S.) 370, to apply to a constructive trust.

The running of the statute of limitations against one of several joint tenants is held, in Cameron v. Hicks (N. C.), 7 L. R. A. (N. S.) 407, to operate as a bar against all, although the remainder are under disability.

The employment of a child in a factory in violation of the provisions of the statute is held, in Rolin v. R. J. Reynolds Tobacco Co. (N. C.), 7 L. R. A. (N. S.) 335, to be evidence of negligence in an action by the child to recover for personal injuries inflicted by a machine in the factory.

One engaged in digging a trench for a gas main across a public street at night, and the foreman in charge of the gang, are held, in Gereg v. Milwaukee Gas Light Co. (Wis.), 7 L. R. A. (N. S.) 367, to be fellow servants, so that the master is not liable for injuries to the former through the failure of the latter to inform him that more cars may be expected on the tracks laid in the street, or in failing to keep watch and warn him of the approach of a car which strikes him.

A plaintiff who has received an injury occasioned by the negligence of the defendant, but who could have avoided it by the exercise of ordinary care on his own part, is held, in Dyerson v. Union P. R. Co. (Kan.), 7 L. R. A. (N. S.) 132, to have no right to recover damages therefor, although the defendant ought to have discovered, but did not in fact discover, his peril in time to prevent the accident, where the plaintiff's negligence continued up to the very moment he was hurt, and the exercise of reasonable diligence before that time would have warned him of his danger and enabled him to escape by his own

effort.

The maintenance of howling and barking dogs and wrining puppies on neighboring premises, to the great and continuous annoyance and discomfort of a property holder and his family, so that their rest is broken, sleep interrupted, and the reasonable use and enjoyment of their home disturbed, is held, in Herring v. Wilton (Va.), 7 L. R. A. (N. S.) 349, to be a nuisance subject to be enjoined.

An artist who, after filling an order to paint a portrait from photographs of the deceased wife of his customer, proceeds, without orders, to paint another, is held, in Klug v. Sheriffs (Wis.), 7 L. R. A. (N. S.) 362, to have no right to compel the customer to pay for it, if it is placed in his possession for inspection and retained by him, since the act of painting it constitutes a violation of the contract, and a breach of trust.

An electric light company which negligently turns a current on to a circuit having a grounded wire is held, in Harrison v. Kansas City Electric Light Co. (Mo.), 7 L. R. A. (N. S.) 293, not to be able to escape liability for resulting injury to a person coming in contact with the grounded current, by the fact that the injury would not have occurred except for the act of a stranger in making a second ground at another place.

The liability of a street car company for injury to a person walking on its track, by the propelling against him of a car running at high speed, with no watchfulness on the part of the motorman for persons on the track, is sustained in Indianapolis Traction & T. Co. v. Kidd (Ind.), 7 L. R. A. (N. S.) 143, notwithstanding such person may be guilty of some negligence in being on the track, if he is not negligent in failing to discover the approach of the car, so that his negligence is merely a remote cause of the accident.

That a passenger alighting from a street car and passing back of it to cross the street is negligent in stepping upon the parallel track without looking for an approaching car is held, in Louisville C. R. Co. v. Hudgins (Ky.), 7 L. R. A. (N. S.) 152, not to relieve the street car company from liability for injuries inflicted by such car, if those in charge of it, by the exercise of ordinary care, could have discovered the peril and prevented the injury.

The record of a judgment against one whose Christian name is Francis, if indexed under the name of Frank, is held, in Burns v. Ross (Pa.), 7 L. R. A. (N. S.) 415, to charge a prospective purchaser from the judgment debtor's heirs with notice of the exist ence of the judgment.

A reward offered for the arrest of a criminal is held, in McClaughry v. King (C. C. A., 8th C.), 7 L. R. A. (N. S.) 216, not to be earned by the giving of information which leads to his arrest.

The right of a board of school directors, under a statute authorizing it to adopt rules and regulations for the well-being of the school, to debar members of high-school fraternities organized against its will, although with the consent of parents of the pupils, and meeting out of school hours, from participating in certain privileges attendant on membership in the

school, such as connection with athletic teams, and with musical, literary and military societies, and to deprive them of customary graduation honors, is sustained in Wayland v. Board of School Directors (Wash.), 7 L. R. A. (N. S.) 352.

A regulation of the department of public instruction prohibiting teachers in common schools from wearing a distinctively religious garb while engaged

in the work of teaching, is held, in O'Connor v. Hendrick (N. Y.), 7 L. R. A. (N. S.) 402, not to be unreasonable.

An attempt to commit suicide is held, in May v. Pennell (Me.), 7 L. R. A. (N. S.) 286, not to be a crime, in the absence of a statute making it such, or making suicide a crime.

A fraternal beneficiary association conducted for the mutual benefit of its members, and for the purpose of providing a fund for the payment of stated dues and fees from such members for the payment of a special amount upon the death of each member to a beneficiary named by him, is held, in Royal Highlanders v. State (Neb.), 7 L. R. A. (N. S.) 380, not to be a charitable association, and its property and funds not to be used exclusively for charitable purposes, so as to be exempt from taxation by the laws of the State.

The power of executors to mortgage the trust estate, under a will placing the estate in their hands in trust to use the income for the maintenance of testator's son, for the accomplishment of which purpose they are given power to manage the property, sell land, or convey the latter or any part thereof as the testator might himself do, is sustained in Re Lueft (Wis.), 7 L. R. A. (N. S.) 263, where, without the mortgage, the income does not exceed the necessary expenses of maintaining the estate, while by means of it sufficient to maintain the son will be secured.

The mere fact that for a long period of time it has been the custom of the owners of mills along a stream to run them only during the working hours of the day, by reason of which the lower owners have gratuitously received the benefit o fthe pond of the upper mill owner, which stored the waters of the stream during the idle hours and let it all down during the working hours, is held, in Mason v. Whitney (Mass.), 7 L. R. A. (N. S.) 289, not to give them a right to insist on his continuance of such practice, so as to prevent his running his wheels throughout the twenty-four hours.

Where a river suddenly changes its course and abandons its former bed, the respective riparian owners are held, in Kinkead v. Turgeon (Neb.), 7 L. R. A. (N. S.) 316, to be entitled to the possession and ownership of the soil formerly under its waters, as far as the thread of the stream, and to maintain ejectment to oust squatters within such limits.