tion in the number of applications for divorce? I answer quite frankly, "No." It is a fact that divorce has lately slightly increased in France, but I call attention to the fact that divorce is as easy in France, under certain conditions, as in the most liberal State in the United States, even for foreigners, provided the parties accept the jurisdiction of the French courts.

IN an article (Michigan Law Review for March) on "Some Legal Aspects of Special Assessments," Professor Frank L. Sage, of the University of Michigan, says of Norwood v. Baker, 172 U. S. 269:

However we may now be tormented with doubt concerning the general principle established by Norwood v. Baker it is made clear by... later cases that the validity of the front foot rule is not subverted by the 14th Amendment and that all or any part of the cost of a local improvement may be assessed under general laws without an opportunity to the taxpayers to show that the tax was in excess of the benefits. If this method is to be discarded it must be done by the legislatures or tribunals of the various States.

Yet it does seem that we may still believe that there is enough left of Norwood v. Baker, as well as from intimations in these subsequent cases, and also in King v. Portland (184 U. S. 61), that while these methods, that might be called arbitrary, are not only prima facie valid, but are generally conclusive, still, if the application of the rule would result in total confiscation of the property, the 14th Amendment might afford relief. Whether any thing less than entire confiscation would be relieved must, we believe, remain for future determination.

Nevertheless the case had a good effect as it has resulted in a re-examination of the fundamental principles of special assessment and some courts, which followed it while it was still in its primal vigor, appear to be well satisfied and disinclined to revert to or adopt the old doctrine that the determination of the legislature is conclusive.

THE third chapter of the interesting controversy between Professor Samuel Williston, of the Harvard Law School, and Professor Francis M. Burdick, of the Columbia Law School, over the question of "Recission for Breach of Warranty," is found in the Columbia Law Review for March. Professor Williston here answers Professor Burdick's criticism (Columbia Law Review, January) of the former's original article (Harvard Law Review, May, 1903). Professor Williston bases his discussion on the

proposition "that the Massachusetts law 31

lows recission of an executed sale for breach of warranty whether the warranty be express or implied, collateral or a so-called condition, and that the English law denies recission of an executed sale for breach of any warranty or promissory condition whatever its nature, though it allows, as does the law of every jurisdiction, the buyer to take the goods temporarily into his possession to inspect them."

In conclusion he says: When I first wrote I was prepared to admit that the weight of actual authority was in favor of the English view. I am still ready to admit this. I thought and still think, however, that the balance of judicial authority in favor of the English view is much less than is ordinarily supposed. Until a few years ago the only text book on sales in much use was the the English treatise of Benjamin, and this doubtless tended to impress upon student and teacher, practitioner and judge the English doctrine. The amount of support that the contrary doctrine has found has not unnaturally been imperfectly noted. The question, however, in which I am primarily concerned, and I cannot help thinking it is the really vital question, is not whether the courts of ten or twelve or fourteen jurisdictions or more or less support the Massachusetts rule but what is the intrinsic merit of the rule itself. Nearly half of the United States have as yet neither decision nor dictum in regard to the matter. When the States I cannot believe that the proper way to decide it is by a popular vote of jurisdic question is presented to the courts of these

tions which have previously decided it. The Massachusetts rule has certainly sufficient. judicial authority behind it to entitle it to consideration on its merits in a jurisdiction unfettered by authority. It is still more clear that a Legislature called upon to deal with the question should adopt the rule which is intrinsically superior.

DEAN ERNEST W. HUFFCUT, of the Cornell University College of Law, discusses, in the Yale Law Journal for March, the question of "Percolating Waters: The Rule of Reasonable User."

To put (he says) the concrete case, may one landowner intentionally (that is, with foreknowledge of results,) cut off a neighboring landowner's water supply by thus intercepting, collecting or monopolizing the percolating waters that feed the neighbor's well or spring?

The answer given to this question in the leading American case is that he may do so if he collects the water for his own use, but not if he collects it for the sole purpose of injuring the neighbor. If he collects it for his own use it is immaterial that he also entertains hostility toward the neighbor. The right should not, however, be exercised from mere malice. Later American cases transfer the emphasis from the showing of "malice" to a showing of "unreasonable user" which may or may not be accompanied by malice.

The answer given to this question in the leading English case is that he may do so absolutely, since he owns the soil absolutely, and all that lies therein, whether solid rock, or porous ground, or venous earth, or part soil, part water, and may dig therein and apply all that is there found to his own purposes. . .

The English law is therefore clear. The landowner who by operations on his own land cuts off the percolating waters that would otherwise feed his neighbor's well or spring need make no defence, need show no His sufjustifiable purpose or occasion. ficient answer is that he has an absolute right to all the percolating waters brought

or held within his own lands, and can not be called upon to explain to any one why he has chosen to collect them, or after collecting them to waste them. Some American cases are to the same effect.

It is believed, however, that the prevailing American view is that, in order to justify the cutting off of another's water supply derived from percolating waters, it is necessary that this should be the result of a reasonable user of defendant's rights in his own lands. To cut off a water supply from mere malice is to cut it off without reasonable excuse or justification.

ANOTHER Contribution to the already voluminous discussion of "The Negotiable Instruments Law" is found in the current number of The Brief, in which John Lawrence Farrell returns to the defense of the new code and to a consideration of Professor Ames' objections thereto. In closing Mr. Farrell says:

While I desire not to be understood as considering the code by any means sacred and not to be defiled by the ruthless hand of criticism, I think that it may be seriously questioned whether this continually recurring to alleged objectionable features thereof, which appear to have no basis except obiter dicta or are predicated upon hypotheti cal cases or conditions created by the negligent acts of individuals who may be parties to the instruments, is fair to the code itself or to those jurisdictions where it is already a part of the written law. It tends to create a feeling of uncertainty and of apprehension that the courts may so construe some of the sections that injustice will result and that eventually amendments may be made. And in those States whose legislatures have not yet adopted the law it produces hostility and distrust in the minds of lawyers and bankers, and this does not augur well for the passage of the law. Professor Ames apparently appreciates this, for he says that it would no doubt have been on the statute books of a greater number of States had he not vigorously urged his objections.

IN the Michigan Law Review for March, Dwight B. Cheever sums up as follows the law bearing on "The Rights of Joint Owners of a Patent":

As side lights upon the main proposition it may be stated that—

(A) A joint owner cannot grant a license which will destroy rights which have already accrued to the joint owners, and, by implication, a license by one owner can only take effect from the date of its issue.

(B) The proportion of interest which the licensing joint owner has is immaterial as affecting his right of licensing..

(C) While there is no title or right to account in the absence of contract, the matter may be regulated by contract, but such a contract makes the parties joint tenants in common and not partners.

(D) A contract of assignment to two or more parties as individuals does not make them partners.

(E) Where the title to a patent is conveyed to a partnership the members of the partnership acquire no individual title and the foregoing propositions do not apply to them; if attempted licenses are made by one of the partners, he is liable to account to his co-partners.

(F) A case wholly irreconcilable with the foregoing authorities is Herring . Gas Consumers' Association (9 Fed 556), which holds that while a coöwner cannot be held to account for his use of the specific device of the patent, he can be held for using an infringing device. As a device to infringe must be the device of the patent or there is no infringement, the decision is clearly wrong. The case, decided by a Missouri District Court, appears to have been never affirmed or followed by another court. . . .

An attorney asked to draw a contract providing for joint ownership of a patent should always advise against it for the reasons stated and make the conveyance, preferably, to a corporation in which the owners are stockholders; if this is impossible, then to a trustee under a full and detailed trust agreement and as a last alternative to a technical partnership of which the proposed own

ers are members. If all of these plans are rejected by the client, insist that a full and specific written contract defining the rights of the respective coöwners be entered into, at the time they take title; and, if possible, record the contract with the assignment in Washington.

OF a test for identifying the nature of blood stains Law Notes for March has this interesting description and comment:

The recent Bechtel trial at Allentown, Pa., has brought into prominence in this country the biological test for identifying the nature of blood stains. Although employed in the United States once or twice before, the test is not so well known here as in Germany, the land of its origin. It marks a distinct and important step, however, in the history of evidence, because while very simple, so far as it goes, it introduces certain knowledge where all before was ignorance and confusion. From the description which we have seen the method is somewhat as follows: The matter containing the stains supposed to be blood is placed for a time in a solution of salt and water; this is afterwards filtered and set aside. Suppose that the State claims that the stain was made by human blood, and the accused claims that it was made, say, by hog's blood. The chemist would, as the next step, inject into a rabbit on several consecutive days, gradually increasing doses of human blood serum, and into another rabbit similar doses of hog's blood serum. After a time the blood of the rabbits thus treated becomes chemically like that of a human being and of a hog respectively. Drawing then from each rabbit a portion of its blood, the operator is ready for the final step in the test. If into a tube containing a portion of the salt solution in which is dissolved the suspected stain is placed a portion of the blood from the rabbit treated with human blood, there will immediately be formed a precipitate, provided the blood stain was that of a human being, but not if it was that of another animal or of a fowl. If no precipitate be formed, it is absolutely certain, say the

chemists, that the stain was not caused by human blood. The State's contention is disproved and the "damned spot" becomes as harmless as a splash of red paint. If it be desired to go further and corroborate the accused, blood from the rabbit treated with hog's blood is placed in a second tube containing a portion of the salt solution. If precipitation occurs, the witness is corroborated, and his general veracity strengthened. If not, he was lying, but the lie can have little effect upon the immediate question, since the other test eliminated the stain altogether as evidence.

SPEAKING of legislative measures with respect to gambling in "option" and "future" contracts in foods stuffs and agriculture produce, The Law Times says:

It appears that, with the exception of Austria, Germany, and Norway, in no country does any special legislation exist which deals with the matter. But in those three countries statutes expressly prohibiting such gambling have been passed; while in the Argentine Republic, Greece, the Netherlands, and Spain there seems to be sufficient power, without further direct enactment, to frustrate transactions which constitute a gamble or depend on illegal speculative engagements. A Bill relating to the offence has been before the Belgian Senate, and also before the Legislature of France; but, so far, nothing has been done in the matter. And in the United States of America, although various Bills have been introduced, none apparently has as yet passed into law. Manifestly, however, it is only a question of time for all Governments to act in checking the evil, and that of the United Kingdom will not wisely be behind the others. There will

be no novelty in the proceeding. Engrossing of the market was in this country an offence by the common law; and "forestallers" and "regrators" met with scant consideration in the Middle Ages. Any attempt to buy up and "corner" the necessaries of life, for the purpose of selling them again at a dearer price, was repressed with a high hand in those days; and, in the interests of the public generally, none the less should it be

so now.

THE recent Iroquois theatre fire in Chicago has given rise to a number of legal questions, which are discussed in several law journals.

On the "Liability of Municipality for Failure of Its Officers to Enforce Ordinances," the Central Law Journal (February 26) says:

Coming now to the exact question before us, i. e,. the liability of municipal corporations for negligence in the enforcement of municipal ordinances, we find the law to be settled, though not without some dissent, against the imposition of such liability. The reason of the rule that a municipal corporation cannot be held liable for the non-action of its officers in this regard is stated to rest on the principle of ultra vires the city not being held liable where the non-action of its officers is contrary to the will of the corporation, as expressed in its ordinances.

Case and Comment for February says: The law seems to be well settled, in most jurisdictions, at least, that the failure of a city to enforce ordinances enacted in the exercise of the police power will not render it liable for damages caused by their non-enforcement.

The Albany Law Journal for March takes the same view.

IMMINENT

ASSUMPTION OF RISK. (DISTINGUISHED FROM
CONTRIBUTORY NEGLIGENCE
DANGER.)

UNITED STATES CIRCUIT COURT OF APPEALS.

In St Louis Cordage Company v. Miller, 126 Federal Reporter 495, the doctrine of assumption of risk is re-asserted in all its juistine harshness and fatuous disregard of the facts of everyday life. The action was by a young woman twenty years of age, for an injury to her hand from gearing which her employer had left uncovered in violation of the requirement of 2 Rev. St. Missouri, 1899, Sec. 6433. The court below instructed that if the jury found that the risk from exposed geering "was so grave and imminent that persons of ordinary prudence under similar circumstances would have declined to go on with the work," then plaintiff assumed the risk, but otherwise she did not. The court speaking by Judge Sanborn says that the instruction was undoubtedly inspired by Southern Pacific Company v. Yeargin, 109 Federal Reporter 436, 442, 48 C. C. A. 497, 503, and which the court now regards as mistaken. The effect of the instruction is to make the defense of the assumption of risk and that of contributory negligence identical, and the majority opinion is largely taken up in drawing a sharp distinction between them. Assumption of risk is said to rest on two grounds, the first, the maxim, l'olenti non ft injuria, and the second, contract. The venerable fiction which disregards the necessitous condition of the laboring class,-that a servant is not compelled to begin or continue to work for his master and is at liberty to retire from his employment at any time, is re-asserted, and the court says that assumption of risk is not conditioned or limited by the probability or improbability, im

minence or remoteness, of the danger from the risk assumed.

The doctrine of assumption of risk is held to apply equally to dangers arising after the employment is entered upon, and the suggestion that there is no consideration because the wages are not increased with the hazard, is said not to be persuasive, because the doctrine rests on the maxim, volenti non fit injuria as well as upon contract, and because ordinarily contracts for times certain do not exist, and there is in fact a constantly recurring daily offer and daily acceptance of the risk, and of the wages tendered to induce an assumption thereof.

But the method of escape from the doctrine is clearly indicated. The Missouri Factory Act does not abolish the defense of assumption of the risk, differing in this respect from the Act of Congress, relative to automatic couplers on cars engaged in interstate commerce. Congress in that act expressly provided that employés should not be deemed to have assumed the risk arising from non-compliance with the act, and the Missouri Legislature had power to apply a similar provision to cases in which employers failed to keep their machinery guarded. The trouble is that the Legislature did not do so.

In a notable dissenting opinion, Judge Thayer proclaims a newer and juster view. He points out that the views expressed by the majority may lead employers to be less careful in discharging their duties towards employés and less vigilant to prevent accidents.

The case of Glenmont Lumber Company v. Roy, 126 Federal Reporter 524, is a parallel case to the one just reviewed, and should be read in connection with it.