49 N. W. 968; Watson v. Milwaukee, etc. Ry. Co., 57 Wis. 332, 15 N. W. 468. If, as in the principal case, the debtor fails to demur for non-joinder of the assignor, a waiver of his rights against a splitting of the cause of action may well be implied, and hence the assignee's judgment should not bar later actions.

DAMAGES LIQUIDATED DAMAGES - WHETHER DEMURRAGE RATE APPLIES TO UNREASONABLE DELAY. The defendant was a charterer of a ship under a charter party which provided five lay days for loading, with payment of demurrage at a fixed rate per day after that. After detention of the ship for a reasonable time beyond the lay days plaintiff gave defendant notice that he would no longer accept the demurrage rate, but would hold the defendant for actual damages. The defendant declined to agree to this. The boat was retained some time longer, for which detention plaintiff seeks to recover actual damages. Held, that the plaintiff may recover only the demurrage rate. Inverkip Steamship Co. v. Bunze, [1917] 1 K. B. 31.

Demurrage may be considered either as an optional right in the charterer to retain the ship on paying a certain sum therefor, or as liquidated damages for a breach of the contract. If the first view be taken the option must be regarded as lasting only a reasonable time, and when the option expires, of course the provision for payment would end, and any further detention would be a breach for which actual damages could be recovered. Western Transport Co. v. Barley, 56 N. Y. 544. See Lilly & Co. v. Stevenson & Co., 22 R. 278, 286. See CARVER, CARRIAGE OF GOODS BY SEA, 3 ed., § 609; STEVENS, DEMURRAGE, 69. This result has the advantage that it does not force the shipowner to either leave the boat for an indefinite period, and recover only a fraction of the actual damages, or take the boat away and suffer perhaps much greater damage for which he must rely on his action against the charterer. But the true construction of the contract in the principal case seems to be that the contract is to load the ship during the lay days, and pay damages at a liquidated rate for further detention; the unqualified statement "demurrage at so much per day" seems to indicate clearly that that rate of damages was relied on so long as the contract should remain in force. Western Steamship Co. v. Amaral Sutherland Co., [1913] 3 K. B. 366. See SCRUTTON, CHARTERPARTIES and Bills of LADING, 6 ed., art. 128. Had the defendant merely continued to use the boat after notice by the plaintiff he might be held to have impliedly consented to pay the actual damage, but his refusal to agree forbids such a construction of his actions. Hagan v. Tucker, 118 Fed. 731. See WALD'S POLLOCK ON CONTRACTS, 3 ed., 9.

DESCENT AND DISTRIBUTION - HOMICIDE BY INSANE HEIR. - An infant who had inherited real and personal property was killed by her insane mother, who then committed suicide. The child's property is claimed by both the mother's heirs and those who would be the child's heirs were the mother disqualified. Held, that the property became vested in the mother and passed to her heirs. Re Estate of Maude Mason, 31 Dom. L. R. 305 (Br. Col.).

For a discussion of the principles involved in this case, see NOTES, p. 622. DOWER - VOID DIVORCE - ESTOPPEL IN PAIS- EFFECT OF IGNORANCE OF ONE'S RIGHTS. - Plaintiff secured a rabbinical divorce from R., and both parties, believing the divorce valid, "married" again. Plaintiff had knowledge of R.'s "remarriage." Plaintiff then removed from New York to Kansas. Twenty years after the separation, shortly after R.'s death, plaintiff learned that the divorce was invalid. She now claims dower in land acquired by R. and conveyed to an innocent purchaser in the interval. Held, she is equitably estopped from asserting her legal right to dower. Kantor v. Cohn, 56 N. Y. L. J. 1339 (Sup. Ct., King's Cty.).

Some courts have held that where the right of dower is statutory it can be barred only in such manner as the statute expressly provides. McCreery v.

Davis, 44 S. C. 195, 22 S. E. 178; Martin's Heirs v. Martin, 22 Ala. 86. But by the clear weight of authority the statutory right of dower may be lost by an equitable estoppel like other property rights. Gilbert v. Reynolds, 51 Ill. 513; Norton v. Tufts, 19 Utah 470, 57 Pac. 409. See 2 SCRIBNER, DOWER, 2 ed., 266 ƒƒ. In some jurisdictions, however, it has been held that there can be no equitable estoppel where the conveyance was made while the dower right was still inchoate. Lohmeyer v. Durbin, 213 Ill. 498, 72 N. E. 1118. See Beeman v. Kitzman, 124 Ia. 86, 93, 99 N. W. 171, 173. The basis of these decisions, that where there is no present right of control or possession, there is no present duty to assert any claim to the property, would seem hardly tenable. The duty to apprise a purchaser of one's rights must in fairness exist as well when those rights are enjoyable in the future as when enjoyable in the present. Gilbert v. Reynolds, supra; Wright Lumber Co. v. McCord, 145 Wis. 93, 128 N. W. 873. That mere silence, failure to assert one's rights, may give rise to an equitable estoppel is now well settled. Wood v. Seely, 32 N. Y. 105. See 2 POMEROY, EQ. JURIS., 3 ed., § 818. See 24 HARV. L. REV. 494. But in such case the party sought to be estopped must have had actual knowledge of his rights. Bringard v. Stellwagen, 41 Mich. 54, 1 N. W. 909; Frederick v. Missouri River, etc. R. Co., 82 Mo. 402; Trenton Banking Co. v. Duncan, 86 N. Y. 221; Dotson v. Merritt, 141 Ky. 155, 132 S. W. 181. The court in the principal case argues that the plaintiff had such knowledge since the validity of a divorce, and thus the right to dower, is a matter of law, and everyone is presumed to know the law. That the state should impose a duty of being cognizant of one's rights, as well as the duty, when possessed of such knowledge, to warn innocent third parties of their existence is not inconceivable. But the law is settled otherwise where the estoppel is based on mere silence. See authorities supra. And to attempt to alter a doctrine based wholly upon equitable considerations by the introduction of a technical legal fiction is neither good law nor good legislation.

MODES OF ACQUISITION

EASEMENTS IMPLIED GRANT AND RESERVATION - IMPLIED RESERVATION OF RIGHT TO FLOWAGE OF WATER IN MILLRACE. - A tract of land included a mill and an artificial mill-race. This millrace was used solely in connection with the mill. The owner conveyed part of the tract, containing the mill and the inlet and outlet of the mill-race, to a milling company. Later he conveyed the rest of the land, containing the middle of the race, to a town. The mill company dammed the race; and the town, claiming an easement by implication to the flowage of water in the race, destroyed the dam. The mill company seeks to recover. Held, that it may recover. St. Mary's Milling Co. v. Town of St. Mary's, 32 Dom. L. R. 105 (Ontario).

Where there is apparent and continuous user, that is, a quasi-easement, in one part of a tract of land for the benefit of another part, on the sale of the quasiservient part of the land many states imply a grant back of an easement if the user was reasonably convenient for the enjoyment of the rest of the land. Quinlan v. Noble, 75 Cal. 250, 17 Pac. 69. Cf. Taylor v. Wright, 76 N. J. Eq. 121, 79 Atl. 433. Some states require for the grant back that the user be reasonably necessary to the grantor's land. Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978; Powers v. Heffernan, 233 Ill. 597, 84 S. E. 661. See 3 ILL. L. REV. 187. However, in England, Canada, and some of the states it is said that the grantor should not be able to derogate from his own grant; and there is no implied grant back to him unless the easement is strictly necessary for the land retained. Ray v. Hazeldine, [1904] 2 Ch. 17; Attrill v. Platt, 10 Can. Sup. Ct. 425, 480; Covell v. Bright, 157 Mich. 419, 122 N. W. 101; Warren v. Blake, 54 Me. 276, 286. An exception to this strict English rule has been suggested where before severance there were reciprocal quasi-easements between the two parts of the land. It was intimated that in such a case reasonable convenience is enough to establish a grant back as well as a grant. Wheeldon v. Burroughs, 12 Ch. D. 31, 59;

Union Lighterage Co. v. London Graving Dock Co., [1902] 2 Ch. 557, 567. Cf. Seymour v. Lewis, 2 Beas. (N. J.) 439, 448; Dunklee v. Wilton R. R. Co., 24 N. H. 489, 497. But in the principal case the necessity was non-existent at the time of the severance of the property. Consequently even the more lenient view will support the case.

EQUITABLE ELECTION - WHETHER HEIR CAN CLAIM BOTH LEGACY AND LAPSED RESIDUARY DEVISE. An Iowa testator willed one half the residue of his property to his son and the other half to his wife. The son having predeceased the testator, the widow claims by descent the lapsed title to an undivided half of certain land in Minnesota which was part of the residue. By Minnesota law the widow, where there are no lineal descendants, is sole heir-atlaw of her husband. Her claim is opposed by those who would have been heirs had there been no widow. They assert that the widow is barred from taking this property as heir because of an election she had made in Iowa to accept the provisions of the will. Held, that the widow must abide by her Iowa election, and her opponents are entitled to the lapsed interest in half the land. In re McAllister's Estate, 160 N. W. 1016 (Minn.).

It is true that an election at the domicil of the testator will be recognized as binding in another state. Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324. See WHARTON, CONFLICT OF LAWS, 3 ed., § 599 e. But it would seem clear that when no election is necessary it should not, when made, affect the party's rights. Collins v. Collins, 126 Ind. 559, 25 N. E. 704. The doctrine of election is often said to have its basis in the testator's intention. To justify the result in the principal case, such intention must presumably be that the legatee take no more than has actually been bequeathed to him. Yet as a matter of fact the only legitimate presumption can be, that the legatee only take by the will if he does not proceed counter to its terms. The taking by intestacy of a legacy lapsed by the death of the legatee, would seem in no sense to contradict the testator's intention. It is more likely, however, that the rule rests simply on equitable principles. See I POMEROY, EQUITY, § 465; 23 HARV. L. REV. 138. Briefly stated, the rule is that equity will not allow a benefit under a will to be accepted while rights are likewise being asserted, which are antagonistic to the will, and injurious to a third party. So where a defect in the will prevents the legatee from taking, and the heir seeks not only his own legacy, but also the property which failed to pass to the other legatee, an election is required. Brodie v. Barry, 2 Ves. & B. 127; Thellusson v. Woodford, 13 Ves. 209. But where the testator merely declares that his heir take nothing, and fails to make any other disposition of the property, the heir will take by descent in spite of the expressed intention. Gallagher v. Crooks, 132 N. Y. 338, 30 N. E. 746. As, in the principal case, the legatee, to whom the lapsed legacy was bequeathed, has died, the taking by intestacy of this legacy in addition to other gifts by the will is conduct inequitable to no one, for it deprives no one of rights attempted to be conveyed by the will. So an election was not necessary. Johnson v. Johnson, 32 Minn. 513, 21 N. W. 725; Hand v. Marcy, 28 N. J. Eq. 59.

EQUITY CANCELLATION UNILATERAL MISTAKE OF FACT. The defendant sent in a bid for a building contract in which by an honest mistake, without negligence, he omitted to take account of an important item, the bid consequently being much lower than he intended. The plaintiff, not knowing of the mistake, accepted the bid. Before the plaintiff had changed his position in any way, the defendant notified him of the mistake and refused to perform. The plaintiff having brought suit on the certified check deposited by the defendant to insure performance, the defendant seeks cancellation of it in equity. Held, that the check should be canceled. St. Nicholas Church v. Kropp, 160 N. W. 500 (Minn.).

For a discussion of this case, see NOTES, p. 637.

STATE

FEDERAL COURTS - RELATION OF STATE AND FEDERAL COURTS PRACTICE OR A FEDERAL RIGHT. - An interstate passenger sued in a state court for baggage lost. The railroad, over objection, introduced a copy of the schedules of limited liability filed with the Interstate Commerce Commission. The copy was not properly authenticated. The court allowed full recovery, erroneously ruling that the schedules did not limit the liability of the railroad. The state appellate court held there was no prejudice in the ruling since the schedules were not properly in evidence, and could not be considered on the appeal. On review to the United States Supreme Court the railroad seeks a new trial claiming violation of a federal right. Held, that there must be a new trial. New York, etc. R. Co. v. Beaham, 242 U. S. 148.

On writs of error from the Supreme Court to a state court the scope of its review is confined to so-called federal questions. See Martin v. Hunter's Lessee, I Wheat. (U. S.) 304. So the decision of a state court upon a question of state practice without more cannot be reviewed by the Supreme Court. Ludeling v. Chaffee, 143 U. S. 301. Thus the denial of a second opportunity to submit evidence was held to involve no federal question but merely a question as to state practice. Thorington v. Montgomery, 147 U. S. 490. It might well be that a federal question would be raised where a rule of state practice was so arbitrary as practically to deny an opportunity for asserting a substantive federal right. But such is not true of the practice in the principal case. The rule there, of considering on review only the competent evidence in the record, seems a common mode of procedure. See Lee v. Missouri Pacific Ry. Co., 67 Kan. 402, 73 Pac. 110; Nance v. Oklahoma Fire Ins. Co., 31 Okla. 208, 120 Pac. 948; Huntington National Bank v. Loar, 51 W. Va. 540, 41 S. E. 901. Nor does the fact that the railroad has not a second chance to prove its right seem to make the procedure unreasonable or arbitrary.

HOMESTEAD

RIGHT OF JUDGMENT CREDITOR AGAINST WIFE WHO BUYS IN AT FORECLOSure Sale - EQUITABLE RELIEF AGAINST MERGER - RIGHTS OF MINOR CHILDREN. A husband and wife joined in the execution of a note, and a deed of trust upon the homestead to secure it. They jointly executed another note, unsecured, to the plaintiff who secured a judgment thereon, after the husband's death. Later the deed of trust was foreclosed, and the widow bought in the land at the sale. Then the plaintiff had an execution issue against the land, but the sheriff set the land off as the homestead of the widow and her minor children. This was an appeal from the overruling of a motion to quash the sheriff's return. Held, that the judgment be affirmed. McMichaels v. Reece, 190 S. W. 51 (Mo. App.).

Homestead rights are purely statutory. Adams v. Adams, 183 Mo. 396, 82 S. W. 66; Sayers v. Childers, 112 Iowa, 677, 84 N. W. 938. The Missouri statutes provide for the ordinary homestead exemption in the head of the family, surviving in his wife and minor children. This is subject to general debts incurred before the acquisition of the homestead, but not to those incurred thereafter. See REV. STAT. MISSOURI 1909, ch. 56. In the principal case, upon the death of the husband, the widow took a vested estate for life during widowhood, and the minor children each a vested term for years during infancy. Brewington v. Brewington, 211 Mo. 48, 109 S. W. 723. See Gore v. Riley, 1ÓI Mo. 238, 61 S. W. 837; Linville v. Hartley, 130 Mo. 252, 32 S. W. 652. These estates were subject, however, to the deed of trust executed by the husband and wife jointly. Newton v. Newton, 162 Mo. 173, 61 S. W. 881; Gladney v. Sydnor, 172 Mo. 318, 72 S. W. 554. But they are not subject to the unsecured indebtedness to the plaintiff, incurred after the homestead was acquired. See Rev. STAT. MISSOURI 1909, § 6708; Acreback v. Myer, 165 Mo. 685, 65 S. W. 1015; Osborne & Co. v. Evans, 185 Mo. 509, 84 S. W. 867. Nor did the rendition of a judgment create a lien upon the homestead property. Burton v. Look, 162 Mo.

502, 63 S. W. 112; Macke v. Byrd, 131 Mo. 682, 33 S. W. 448; Green v. Marks, 25 Ill. 221. But see Blythe v. Gash, 114 N. C. 659, 19 S. E. 640; Moore v. Smead, 89 Wis. 558, 62 N. W. 426. However, at law, by the purchase of the land at the foreclosure sale, the widow secured the legal fee, and her own life estate in the homestead right merged therein and was lost. And the children's estates, being subject to the deed of trust, were destroyed by the sale. Consequently, although the widow might claim as the head of a family a new homestead exemption for herself and children against all future creditors, the newly-acquired estate in fee must be subject to an execution in favor of the plaintiff, an antecedent judgment creditor. In substance, however, the purchase by the widow is a redemption of the homestead for herself and her children. For practical reasons it may have been more advantageous, or even necessary, for her to buy in the property at the sale rather than to pay off the indebtedness. But the same substantive result is effected, and the same legal consequences should follow, whichever form of redemption is used. So equity, looking at the substance of the transaction, will prevent the merger of her homestead rights in the fee simple. See Smith v. Roberts, 91 N. Y. 470; Swinfen v. Swinfen, 29 Beav. 199. See 2 POMEROY, EQ. JURIS., §§ 790-793. Upon this principle, the homestead right acquired through her husband may still be asserted by the widow against the plaintiff. And the children's estates, though destroyed at law by the mother's purchase, should be given effect in equity in like manner as if the mother had redeemed by paying off the indebtedness. Such was the substance of the transaction. See Ailey v. Burnett, 134 Mo. 313, 33 S. W. 1122; Drake v. Kinsell, 38 Mich. 232, 237; McCreary v. McCorkle, 54 S. W. 53 (Tenn. Ch.). Nor can the mother be heard as against her children to deny that her purchase was a redemption for their benefit. She owes them a fiduciary duty of care and protection and she can in no way prejudice their rights in their father's homestead. See Phillips v. Pressor, 172 Mo. 24, 72 S. W. 501; Gorman v. Hale, 109 Mo. App. 176, 82 S. W. 1110. Hence their interest survives and is not subject to this execution. Although the case is one at law, in code states where law and equity are administered by the same courts, there can be no objection to cutting cross-lots to secure a result on a law suit which would formerly have called for a separate proceeding in equity. Nor can the interest in fee in the homestead be sold on execution, subject to the homestead rights of the widow and children. Armor v. Lewis, 252 Mo. 568, 583, 161-S. W. 251; Moore v. Wilkerson, 169 Mo. 334, 337, 68 S. W. 1035.

INSURANCE - MURDER BY BENEFICIARY - RIGHT TO PROCEEDS. — The beneficiary of a life insurance policy murdered the insured. The victim's son and the beneficiary are the sole statutory heirs. The son brings an action on the policy. Held, that he recover. Sharpless v. Grand Lodge A. O. U. W., 159 N. W. 1086 (Minn.).

For a discussion of the principles involved in this case, see NOTES, p. 622.

INTERNATIONAL LAW - ADMIRALTY - ENEMY PROPERTY. - Goods were seized en route from Copenhagen to the United States on a Danish vessel. They were manufactured to order in Germany and the neutral claimant contended that title passed to him when they left the factory. The Crown claimed them as enemy property under the Order in Council of March 11, 1915. Held, that the goods were enemy property. The United States, [1917] p. 30.

The order in question provides for the seizure of enemy property on the seas. What constitutes enemy property the court declared is decided according to the international law of prize. În support of its decision it applied the doctrine of transfer of title in transitu. This doctrine holds that goods which have been shipped as the property of the enemy seller cannot on the voyage be transferred to the neutral buyer so as to avoid capture, but there must be an actual delivery of possession. See The Baltica, 11 Moo. P. C. 141, 145. See PRATT, STORY ON