by calling the statements of a physician as to the illness of his patient a part of the res gesta. McNair v. National Life Ins. Co., 13 Hun (N. Y.) 144. EVIDENCE HEARSAY AGE OF WITNESS. - On a trial for statutory rape, the age of the prosecutrix being in issue, objection was made to her competency to prove her own age, on the ground that her knowledge of it was obtained outside of her family, though from a person (B) with whom she had lived as an orphan. Held, that the evidence is not admissible. People v. Colbath, 104 N. W. Rep. 633 (Mich.).

Though the statement may not be in regard to pedigree, and, strictly speaking, is hearsay, the broad view is usually taken that as the statement of a witness regarding his own age is sufficient in practical affairs of life, it should be admissible. Cheever v. Čongdon, 34 Mich. 296. And it will be admitted though his parent is present, and though it appears that his knowledge came from the parent. Loose v. State, 120 Wis. 115. But the statement of B herself as to the age of a person not a member of her family would not have been admissible. Simpson v. State, 81 S. W. Rep. 320; see 9 HARV. L. REV. 486. And it follows as a logical step from this rule, that the fact of passing through one more individual, though that one happens to be the person whose age is in question, should not make that admissible which was before inadmissible. Cf. State v. Cougot, 121 Mo. 458. If the contrary view were taken, it would follow that the rule limiting evidential statements of age to members of the family of the person whose age is in question should be extended to include those who would be likely to know, irrespective of relationship. This would of course be an extension with vague limits, but might be wise in the case of an orphan entirely without family, or where none of the family knew.

ILLEGAL CONTRACTS - CONTRACTS AGAINST PUBLIC POLICY — AGREFMENTS BETWEEN OFFICE-HOLDERS AS TO TERMS OF OFFICE. At the first election after the death of one alderman of a board of eight (four of whom were elected annually for a term of two years), five were chosen with no specification as to which should have the short term. The question could not be settled by the three aldermen whose terms were not in dispute, since they did not constitute the necessary quorum. One of the new members agreed to take the short term on condition that the others vote for him for president of the board. Elected president, at the end of the year he refused to withdraw. Held, that the contract is not contrary to public policy and that the defendant may be compelled to resign. Hobbs v. Upington, 89 S. W. Rep. 128 (Ky.).

The position of the court in enforcing such a contract must be regarded as extremely questionable. The defendant induced his colleagues to vote for him for president of the board by promising them an undisputed two-year term. If he had offered money for the same purpose, the agreement clearly would have been void as against public policy. Swayze v. Hull, 8 N. J. Law 54. Similarly, his colleagues induced him to promise to withdraw at the end of the year, by agreeing to vote for him for president. Here again, if they had offered money to procure his withdrawal, the agreement would have been contrary to public policy. Eddy v. Capron, 4 R. I. 394. The fact that the consideration on each side was political office instead of money does not alter the principles involved. See Stroud v. Smith, 4 Houst. (Del.) 448. When the substance of a contract is the bartering of public offices for private and unworthy motives, no equitable ground for its specific enforcement can be found.

INSURANCE RIGHTS OF INSURER EFFECT OF INSURED'S GRANTING ABATEMENT IN PRICE TO VENDEE. - The defendant agreed to sell to the Corporation of Plymouth certain premises which had been insured by the plaintiff. Before the title was transferred, some buildings were burned; and the insurance was collected by the defendant. Thereafter the defendant released to the Corporation of Plymouth his claim for an amount of the purchase price equivalent to the amount of the insurance money. The plaintiff sued the defendant to obtain the value of this right that was released. Held, that it can recover. Phænix Assurance Company v. Spooner, [1905] 2 K. B. 753.

Having decided that the vendee of premises that had been burned before the transfer of title has no right to the insurance money which the vendor receives, the English courts were confronted with the alternative of allowing the vendor to recover double compensation for his loss, or of subrogating the insurance company to the vendor's rights against the vendee. Cf. Rayner v. Preston, 18 Ch. D. I. The latter alternative was chosen, and the present case merely reënforces that decision. Cf. Castellain v. Preston, 11 Q. B. D. 380. The courts of this country feeling that the insurance money really stands in the place of the destroyed property, have held that, like the property which it represents, such money belongs in justice to the vendee. Skinner, etc., City v. Houghton, 92 Md. 68, 82. This view is a departure from the doctrine, which has found favor in England, that a policy of insurance is a contract of personal indemnity. But the American position is justified on equitable grounds, since it places the loss upon the insurance company which has been paid to sustain it, and relieves the vendee from the necessity of paying for what he does not receive.

MORTGAGES · MERGER OF INTERESTS TRANSFER OF DEBENTURES AFTER PAYMENT. A company issued debentures as a first charge on its property, agreeing to create no charges in priority to or upon an equal footing with them. Some of these debentures it issued to A, as security for a loan. Later the loan was paid off by the company, and the debentures returned by A, together with blank transfers. The company then, having applications for debentures, transferred these same debentures to the applicants, who paid their full value, and were registered as holders. At the winding up of the company, these transferees claimed equal priority with the other debenture holders. Held, that they are not entitled thereto, since their debentures were either extinguished by payment, or if kept alive could not be set up against the other debenture holders. In re W. Taskers & Sons, Ltd., [1905] 2 Ch. 587.

When the owner of property subject to a mortgage acquires the mortgage, equity will prevent the extinction of the mortgage by merger, if an intention to keep it alive can be found, or, in the absence of evidence of intention, if it will be to the owner's advantage to keep it alive, provided it will not perpetrate a fraud on third parties. Forbes v. Moffatt, 18 Ves. Jun. 390. But since equity will not aid fraud, it has been held that when a mortgage debt is paid by one who is bound to pay it, and upon whom the burden of payment ought to fall, an assignment of it to him operates as a discharge. Burnham v. Dorr, 72 Me. 198; see also JONES, Mortgages, 5th ed., 864. Under this rule, a mortgagor who has acquired a first mortgage made by himself cannot set it up against a subsequent mortgage also made by himself. Otter v. Vaux, 6 De Ġ. M. & G. 638. It would seem equally unfair to let him set it up against a contemporaneous mortgage made by himself. Even if the company, by registering the transfer, were estopped to deny the validity of the transferred debentures, the other debenture holders are not so estopped. Mowatt v. Castle Steel and Iron Works Co., 34 Ch. D. 58.

NEGLIGENCE DUTY OF CARE-DUTY CREATED BY MUNICIPAL ORDINANCE. An ordinance regulated the manner of running street cars. Held, that a violation of the ordinance is negligence per se, and a person injured can bring a civil action based on the breach of the duty imposed by the ordinance. Sluder v. St. Louis Transit Co., 189 Mo. 107. See NOTES, p. 288.

NEW TRIAL-GROUNDS FOR GRANTING NEW TRIAL - JUROR'S NOTES OF EVIDENCE. During the trial of the defendant for murder, a juror for three weeks openly took notes of the testimony in aid of memory. Held, that this does not as a matter of law require the setting aside of the verdict. Commonwealth v. Tucker, 33 Banker and Tradesman 2555 (Mass., Sup. Ct., Nov. 28, 1905).

In the absence of statutes, which provide in several states that jurors may take notes of the evidence, some courts regard note-taking as an improper practice, whereas others consider it allowable or sometimes even commendable, whether in a civil or criminal action. United States v. Davis, 103 Fed. Rep.

457; Cowles v. Hayes, 71 N. C. 230; Thomas v. State, 90 Ga. 437. And in civil cases at least, some jurisdictions permit counsel to request the jurors to take notes of a particular fact or calculation, provided that too much time is not consumed thereby, though the jurors are not required to comply. Tift v. Towns, 63 Ga. 237; contra, Indianapolis, etc., Rd. Co. v. Miller, 71 Ill. 463. It seems established that even in a murder trial, the verdict will not be set aside unless the fact affirmatively appears that neither the defendant nor his counsel had knowledge of the note-taking, for consent to it is presumed from failure to object. State v. Robinson, 117 Mo. 649. From the facts in the principal case, the fair inference is that there was knowledge. But the case seems sound in the view that even if there were no knowledge, note-taking by a juror is not illegal, and that so far as it is misconduct, the court will grant a new trial at discretion and not as a matter of law. See Commonwealth v. White, 147 Mass. 76.

POWERS EXECUTION BY RESIDUARY DEVISE. - A testator, having a special power of appointment, left a will which purported to dispose of all the property he owned or over which he had any power of disposition. The will did not mention the power, but contained a general residuary clause. Held, that the power is executed in favor of the residuary legatees who are members of the class specified by the donor of the power. Stone v. Forbes, 189 Mass. 163.

The old common law rule, in force in nearly all of the states unless changed by statute, is that a power of appointment is not exercised by a general residuary devise of all the testator's estate. A further intention to appoint must appear. Hollister v. Shaw, 46 Conn. 248. Massachusetts has departed from the rule in the case of general powers by holding that a residuary devise sufficiently indicates the intention to appoint. Amory v. Meredith, 7 Allen (Mass.) 397. An effort was made to distinguish the present case because it involves a special power. English decisions make such a distinction in construing the Wills Act. In re Hayes, [1900] 2 Ch. 332. The Massachusetts court says that as the intent to exercise the power is sufficiently expressed to satisfy the common law rule, they need not decide the point; but the opinion intimates that the special power would have been treated like a general one if the intent had not been found. North Carolina follows the Massachusetts decisions in a case involving a special power without mentioning the distinction. Johnston v. Knight, 117 N. C. 122. And Massachusetts will probably refuse to treat the two kinds of powers differently, as there is quite as much reason for holding that the testator intended the residuary legatee to be the appointee in one case as in the other.

PREFERENCES - AT COMMON LAW-EFFECT OF APPOINTMENT OF RECEIVER ON STATE PRIORITY. - A receiver was appointed for an insolvent corporation under a statute vesting him with title to its assets. Held, that this cut off the state's right to priority. State v. Williams, 61 Atl. Rep. 297 (Md.). See NOTES, p. 292.

RESIGNATION

PUBLIC OFFICERS WITHDRAWAL OF RESIGNATION. — A justice of the peace filed his resignation to take effect in the future. It was at once accepted and notice was given the election commissioners to hold a new election. Later, but before the resignation was to take effect, it was attempted to be withdrawn without the consent of the accepting authority. Held, that the resignation was irrevocable. Murray v. State ex rel. Luallen, 89 S. W. Rep. 101 (Tenn.).

The common law doctrine, prevailing in a majority of the states, requires that a resignation to be effective must be accepted. Fryer v. Norton, 67 N. J. Law 537. By this view it is merely an offer, which may be withdrawn before acceptance. State ex rel. Van Buskirk v. Boecker, 56 Mo. 17. But when a resignation intended to operate at once has been accepted, withdrawal is impossible under any circumstances, for the office is vacant and can be filled only according to law. State ex rel. Bergshicher v. Grace, 113 Tenn. 9. A distinction, however, is taken with reference to prospective resignations. As

the incumbent is not out until the date set, there seems to be no objection to a withdrawal before then, even after acceptance, provided the accepting authority consents and no new interests, such as arrangements for an election, have intervened. See Biddle v. Willard, 10 Ind. 62. Since the present case falls foul of both these objections, it could scarcely be decided otherwise, but the court rests its judgment entirely on the previous Tennessee decision, cited above, relating to an immediately effective resignation. In states where a resignation is final without acceptance, withdrawal should be allowed in the case of prospective resignations at any time before the operative date, except where new rights have intervened. It has been so held. State ex rel. Williams v. Beck, 24 Nev. 92.

RES JUDICATA - MATTERS CONCLUDED ASSIGNEE OF JUDGMENT AS A PRIVY TO GARNISHMENT PROCEEDINGS ON THE JUDGMENT. A judgment creditor, W, assigned his judgment against H to the plaintiff in the present suit. Before assigning to the plaintiff, W had commenced an action against the defendant in the present action, as garnishee of H, the judgment debtor. The garnishment action failed, and in the present action the plaintiff maintains that a finding in the garnishment proceeding is res judicata as between himself and the defendant. Held, that the plaintiff was neither party nor privy to the proceedings in the garnishment action, and that the finding in it is therefore not res judicata in the present suit. Allen v. Ellis, 104 N. W. Rep. 739 (Wis.).

The general rule is that an assignee is privy to judgments rendered in suits on the chose assigned if the suits were begun before the assignment. Corcoran v. Chesapeake, etc., Co., 94 U. S. 741. The question raised in this case was whether the garnishment action is intimately enough related to the original judgment to bind the assignee of the judgment. The garnishment proceeding was merely auxiliary to execution on the judgment assigned. Garland v. McKittrick, 52 Wis. 261. That the garnishment proceeding was not specifically assigned is of course not conclusive against its binding the assignee. Block v. Commissioners, 99 U. S. 686. Furthermore the fact that it was based on the judgment and might have involved a finding that the judgment was void seems to show its necessary connection with the judgment. Beaupre v. Brigham, 79 Wis. 436. An additional consideration pointing to this result is that the assignee would be entitled to the proceeds of the garnishment. Bullitt & Fairthorne v. Methodist Episcopal Church, 26 Pa. St. 108. The contrary view would seem to allow the assignee to bring a new garnishment action against the same garnishee, raising the same issues; and successive assignees would have indefinitely the same power of continual litigation. This is against the fundamental policy of the law of res judicata. Cf. Bisland v. Griffin, 9 La. An. 150. RES JUDICATA - PERSONS CONCLUDED-Co-defendants. - A decree in equity declared that C, one of two defendants, was entitled to a certain sum of money which the plaintiff A claimed as judgment-creditor of B, the other defendant. B now brings this action against C for the same sum. Held, that the decree operates as a bar to his right, on the principle of res judicata. Ellis v. Cole, 105 N. Y. App. Div. 48.

If A's claim against C is derived from and is as great as that of B against C, and if A fails to establish his case, then B is barred from asserting his claim against C in a subsequent suit. Cohen v. Simpson, 32 S. W. Rep. 59. In the case under discussion the decree in equity necessarily involved the decision that C was entitled to the money as against B; for otherwise A would have been entitled to it, since his claim was admitted to be as great as that of B. The provision in the Code (§ 521) requiring a defendant to notify his co-defendant when he wishes to establish his rights against such co-defendant as well as against the plaintiff, does not apply to cases where these rights are necessarily involved in a judgment for or against the plaintiff, since the Code provision was not intended to interfere with the principles of res judicata. Pratt v. Johnston, 59 N. Y. App. Div. 52.

RESTRICTIVE AgreementS AS TO USE OF PROPERTY - CHANGE IN CHARACTER OF LOCALITY AS GROUND FOR REFUSING INJUNCTION. The de

fendant was the owner of land subject to a covenant, limited in duration to twenty-five years, that there would not be built upon it "any tenement, apartment or community house." After nineteen years the neighborhood had ceased to be desirable for private residences, so that the enforcement of the covenant would cause great hardship to the defendant without benefit to the plaintiff's property. Held, that equity will not enjoin a threatened breach. McClure v. Leaycraft, 183 N. Y. 36.

The decision of the lower court, which is here reversed, was commented upon in 18 HARV. L. Rev. 472.

RULE AGAINST PERPETUITIES

- CY-PRÈS DOCTRINE. - The testator devised his freehold estate to A for life, remainder to A's eldest son for life, remainder to the first and other sons of A's eldest son in tail male successively, remainder to the other sons of A successively subject to the same limitations, remainder to the daughters of the first and other sons of A successively in tail as tenants in common, remainder to the daughters of A in tail as tenants in common, remainder to A, his heirs and assigns, forever. A died without ever having had issue. As the devises to the sons of A's sons were void for remoteness, the executors proposed to substitute the following limitations in order to effectuate the testator's intent: to A for life, remainder to A's sons successively in tail male; if on the determination of prior estates there shall be a failure of issue of the sons of A other than daughters or issue of daughters, then to A's sons successively in tail general; remainders thereafter as in the original will. Held, that the substitution be not accepted. In re Mortimer, [1905] 2 Ch. 502. The doctrine of cy-près, which has been applied in order to mitigate the severity of the rule against perpetuities, aims to effectuate the intention of the testator. It will not be invoked if its application results in benefiting persons whom the testator did not intend to benefit; but it may be used even though the order in which the devisees take is thereby changed. See GRAY, RUle against Perp. §§ 647, 649. In order to give effect to the testator's intention in the present case an unusual condition transforming vested into contingent remainders was invented. Had the court been inclined to look with favor upon the doctrine, such an expedient would probably have been sanctioned. The decision, however, is in harmony with the disposition of the English court to restrict the doctrine of cy-près. Cf. In re Richardson, [1904] I Ch. 332.

STATUTES INTERPRETATION - WHETHER APPOINTEE OF Legislature MAY EXTEND ITS POWER BEYOND EXACT WORDING OF STATUTE. A statute gave the county courts of the state power, subject to a local option law, to grant liquor licenses to adults of good moral character. The plaintiff was granted a license by the county court of his county, with the provision that the license might be revoked by the same court if the plaintiff violated the local liquor laws. The plaintiff broke the Sunday law and the county court revoked his license. Held, that the plaintiff has no legal ground for complaint. One justice dissented. Sarlo v. Pulaski County, 88 S. W. Rep. 953 (Ark.).

A state legislature, under its police power, can control the sale of liquor within the state, and may properly delegate to subordinate bodies the right of local control. Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. It being admitted that the legislature in the present case might properly have given the county court power to grant revocable licenses, the question remains, did it in fact do so? Cf. Schwuchow v. City of Chicago, 68 Ill. 444. The courts, in interpreting a statute, usually assume, in the absence of a strong reason for a contrary holding, that the legislature intended to reserve what it did not grant. Lantz v. Hightstown, 46 N. J. Law. 102. The present decision, however, asserts that power to grant to proper persons includes power to revoke. The only case on this precise point is in accord. Gerstlauer's License, 5 Pa. Dist. Reps. 97. The view of the dissenting justice, that until power is expressly, or by necessary implication granted, the court should not assume it to have been granted, seems to conform more closely to the general current of statutory interpretation. The suggestion that the welfare of the community demands the broader construction is not controlling, inasmuch as another