served with summons. Held, that unless the holder of the judgment had been guilty of fraud the action could not be maintained. Wiley, J., dissenting.

This decision is opposed to the prevailing view. Black on Judgments, sec. 377; Freeman on Judgments, sec. 495; Ridgeway v. Bank, 11 Humph. (Tenn.) 523; Kibbe v. Benson, 84 U. S. 629. According to these authorities the defendant may have relief whenever he has not been guilty of any fault. Such a proceeding is to be regarded as a direct attack upon the judgment. Cotterall v. Koon, 151 Ind. 182. The only Indiana case at all similar, Nealis v. Dick, 72 Ind. 378, in which it was held that because the prevailing party was guilty of fraud the judgment ought to be set aside. The principal case is, however, not unsupported. Walker v. Robbins, 55 U. S. 584; Knox City v. Harshman, 133 U. S. 152; Taylor v. Lewis, 19 Am. Dec. 135; the doctrine of these cases being based upon public policy.

MUSICAL COMPOSITIONS COPYRIGHT-IMITATION.-BLOOM V. NIXON, 125 FED. 977.-Plaintiffs were owners of a copyrighted song which was rendered during the performance of a musical comedy by an actress. Held, that an imitation of the actress while singing such song, by another actress, in which she attempted to mimic the gestures of the original actress, and used only a portion of the song, was not within the statute prohibiting the performance, without the consent of the proprietor, of any dramatic or musical composition for which a copyright had been obtained.

The case proceeds upon the theory that it was the gestures which were represented through the medium of the song and these were not protected by the copyright. We find no cases in which this precise question has been considered. In the case of Martinetti v. Maguire, 1 Abb. (U. S.) 356, a bill to enjoin the reproduction of spectacular effects was dismissed, but questions of morality were also involved. The general rule is that any use of the original production, other than by multiplying it, as by public recitations, does not constitute an infringement of a copyright. High on Injunctions, sec. 1017.

NATURALIZATIOn-RequiremeNT OF STATE STATUTE—PERJURY IN STATE COURT-JURISDICTION OF FEDeral Court.-UNITED STATES V. SEVERINO, 125 FED. 949.—In addition to the requirements of the United States law relative to naturalization, a State passed an act providing for the filing of a petition, accompanied by an affidavit of a citizen. Held, that perjury committed in making this affidavit was not punishable in the federal courts.

In New York it has been declared that a State court, acting under the naturalization laws of the United States, acts as the agent of the federal government and has no jurisdiction to punish criminal offenses against the United States, those being exclusively within the jurisdiction of the federal courts. In re Ramsden, 13 How. Prac. 429. In such other courts as have considered the question, it was held that false swearing, in naturalization proceedings, in State courts, is perjury at common law, and may be punished by the State as well as by the federal courts. Comm. v. Fuller, 8 Metc. (Mass.) 313; Sutton v. State, 9 Ohio 133. The principal case carries the latter rule one step farther in giving the State courts exclusive jurisdiction to punish perjury committed where, although acting in naturalization proceedings, they are acting pursuant to a State law.

RAILROADS-NEGLIGENCE-PEdestrians-DUTY TO KEEP A. LOOKOUT.MCCLANAHAN V. VICKSBURG, 35 So. 903 (LA.).—While intoxicated, a man entered upon a railroad track in the daytime in the open country and fell on the track. While lying in this position he was killed by a train, the engineer not seeing him until within a short distance. Held, that, while the deceased was guilty of contributory negligence, the failure of the engineer to keep a closer lookout was such negligence as to justify a recovery. Provosity, J., dissenting.

Whether a railroad company is liable to a trespasser to maintain a strict lookout is a widely disputed question. Yarmal v. Railroad, 75 Mo. 575; Smith v. Railroad, 14 N. C. 728; Patton v. Railroad, 89 Tenn. 370; Memphis & C. R. Co. v. Womack, 84 Ala. 149; Denman v. St. P. & D. R. Co., 26 Minn. 357. And even while it may owe such a duty to its passengers, this does not imply a corresponding duty toward a trespasser. N. Y., N. H. & H. R. R. Co. v. Kelly, 35 C. C. A. 571. It would seem that in the States where such a liability is placed upon the railroad company, a like responsibility would rest upon a trespasser, since the danger is equally obvious to either. But in such a case it has been held that if the engineer, in the exercise of reasonable care, might have avoided the accident, the company will be liable. B. & O. R. Co. v. Hellenthal, 31 C. C. A. 414; Kirthy v. C. M. & St. P. R. Co., 65 Fed. 386; B. & O. R. Co. v. Anderson, 85 Fed. 413; Chicago, N. W. R. Co. v. Donahue, 75 Ill. 106; Wood, R. Law (2d ed.), 1468. This would seem to be a reasonable rule, since no one is justified by the negligence of another in taking his life, through either intent or negligence. The question of the responsibility of a railroad company to a trespasser to maintain a lookout is entirely unsettled, but once the danger is discovered, nothing less than the utmost efforts to prevent the accident will relieve it.

STREET AND INTERURBAN RAILROAD-ANNEXED TERRITORY-CONTRACTS.— IND. RY. Co. v. Hoffman, 69 N. E. 399 (Ind.).—There was a contract between a city and a street railway company by which the company agreed to transport passengers on transfers upon any of its lines within the city limits. Held, that where the city subsequently in the exercise of its governmental power extended its limits, the company was bound to carry passengers upon its interurban line to the new city limits without extra charge.

This seems to be the first decision on this point in this court. The case holds that a city may increase the benefits which it derives from a contract without the consent of the other party on the ground that the possible exercise of this governmental power of extension must have been in contemplation of the parties. It is well established that the contract of a municipality cannot be altered or abrogated without the consent of both parties. 20 Am. & Eng. Ency., 1157; Sawyer v. Concordia, 12 Fed. Rep. 754; Nelson v. Parish, 111 U. S. 716. A city is not excused from its contract where it fails to exercise its governmental power and as a result is unable to receive any benefit from the contract. Murray v. Kansas City, 47 Mo. App. 105. As tending to support the present decision it has been held that a legislative act modifying the territorial limits of a city is not unconstitutional although it operates to decrease the security of prior creditors. State v. Lake City, 25 Minn. 404; Wade v. City of Richmond, 18 Gratt. (Va.) 583. The court in the principal case relies almost entirely upon the principle that municipal ordinances be

come operative within the annexed territory as a natural consequence of the annexation. Toledo v. Edens, 59 Ia. 352.

STREET RAILWAYS-RIDING ON CAR STEPS-LIABILITY FOR INJURIES.MOSKOWITZ V. BROOKLYN HEIGHTS R. Co., 85 N. Y. SUPP. 960.-Held, that a person who elects to ride on the steps of a crowded street car, and who is thrown off by the oscillation of the car while it is running at the customary rate of speed, assumes the risk of injuries so occasioned. Hirschberg and Woodward, JJ., dissenting.

While riding on the platform or steps of a steam railroad car is generally regarded as negligence per se, Goodwin v. R. Co., 84 Me. 203, it is not so considered as to street cars, Cummings v. R. Co., 166 Mass. 220. In many cases, however, it is said to constitute such negligence as to preclude a recovery for resulting injuries, unless the crowded condition of the car makes it necessary: Tham v. Traction Co., 191 Pa. St. 249; Archer v. R. Co., 87 Mich. 101. In Ayers v. R. Co., 156 N. Y. 104, it was held that a passenger on a street car assumes the risks ordinarily incident thereto, and the tendency of the New York decisions seems to in harmony with this view. The dissenting opinion in the present case contends that a common carrier inviting a passenger for hire to occupy a precarious position upon the platform impliedly represents that the car will be so run as to insure his safety. See Nolan v. R. Co., 87 N. Y. 63; Wilde v. R. Co., 163 Mass. 533; Pomashi v. Grant, 119 Mich. 675.

SURETIES OBTAINING PREFERENCES—INUREMENT TO CO-SURETIES.—CAMPau V. DETROIT DRIVING CLUB, 98 N. W. 267 (MICH.).—A part of the sureties on a forfeited bond liquidated their pro rata share of the indebtedness, subsequently levying on the property of the principal. Held, that the assets so required did not inure to the benefit of the co-sureties. Hooker, C. J., and Montgomery, J., dissenting.

The court reasons that the relation of co-suretyship was severed upon payment by part of the sureties of their proportion of the principal debt. They then apply the doctrine that indemnity given to the surety after the debt has been discharged does not inure to the benefit of co-sureties, Gould v. Fuller, 18 Me. 364; Moore v. Isley, 22 N. C. 374. While the general rule is that indemnity obtained by one of several sureties prior to the determination of the relation is subject to the claim of all, Guild v. Butler, 127 Mass. 386; Berridge v. Berridge, 44 Ch. Div. 168; yet when the debt is paid in equal proportion, the equities cease, and co-sureties are not entitled to share in the indemnity subsquently obtained from the principal, Messer v. Swan, 4 N. H. 481. The dissenting opinion points out that the doctrine followed has been applied only in those instances where the full amount of the debt was paid; whereas in the present case only a pro rata share was liquidated; and contends that equity should not ingraft upon the general rule an exception that will enable one co-surety to overreach another.

TRUSTS SAVINGS BANK-DEPOSITS IN TRUST FOR ANOTHER-IN RE TOTTEN, 85 N. Y. SUPP. 928.-Where one deposits funds in trust for another, without knowledge of beneficiary, and subsequently withdraws such accounts, held, that, after the depositor's death, the cestui que trust can recover from the estate of the deceased the amount of the deposits.

This class of voluntary trusts has given rise to an irreconcilable conflict

of opinion. The decision follows the liberal New York doctrine, well exemplified in Martin v. Funk, 75 N. Y. 134, which apparently has found favor in some other jurisdictions: Minor v. Rogers, 40 Conn. 512; Ray v. Simmons, 11 R. I. 266; Gaffney's Estate, 146 Pa. St. 49. The Massachusetts courts, on the other hand, have declared that a deposit by one as a trustee will not be sufficient to create an irrevocable trust; that, to make the delivery effectual, the donor must part with every vestige of dominion over the property: Sherman v. Bank, 138 Mass. 581; Clark v. Clark, 108 Mass. 522. The weight of authority seems to support the Massachusetts rule: Robinson v. Ring, 72 Me. 140; Davis v. Bank, 53 Mich. 163; Gano v. Fisk, 43 Ohio St. 462; Schollmier v. Schollmier, 78 Iowa 426; Smith v. Speer, 34 N. J. Eq. 336; and even in New York there is a strong tendency to renounce the broad doctrine followed in the main case: Beaver v. Beaver, 117 N. Y. 421; Cunmingham v. Davenport, 147 N. Y. 43.

GRANT-IRRIGATION.—

WATER COURSES-PAROL LICENSE-IRREVOCABLE MAPLE ORCHARD Co. v. Marshall, 75 Pac. 369 (UTAH).—Held, that a parol license to enter on land to construct a pipe line for purposes of irrigation operates as an irrevocable grant, after entry and construction of the pipe line at considerable expense and after commencing the use of the water.

This court is so far favorable to irrigation projects as to hold that the taking of property for the purpose of carrying water for the irrigation of an otherwise unproductive farm is a taking for a public use, justifying the invocation of eminent domain. Nash v. Clark, 75 Pac. 371. A parol license to do a certain act or succession of acts on the land of another is in all cases revocable, so far as it remains unexecuted, or so far as any future enjoyment of the easement is concerned, at the will of the licensor, even where the licensee has made an expenditure of money upon the land of the licensor upon the faith of the license. Houston v. Laffee, 46 N. H. 507. So where the expenditure is trifling, Wiseman v. Lucksinger, 84 N. Y. 31. This seems the general rule, but many cases support the present court. Thus, a parol license for a party-wall is taken out of the statute of frauds by its execution. Russell v. Hubbard, 59 Ill. 335. Where money has been expended on the faith of such license, so that the parties cannot be placed in statu quo, equity grants relief as in any other case of part performance of a parol contract for the sale of land, upon the ground of preventing fraud. Prince v. Case, 10 Conn. 375.

WILL-VALIDITY-NON-CONTINGENT CLAUSE.-REDHEAD V. REDHEAD, 35 So. 761 (Ala.).—Held, that an instrument beginning, “Realizing the uncertainty of life at all times, and the dangers incident to travel, I leave this as a memoranda of my wishes should anything happen to me during my proposed trip," is a valid will, although the testator did not die until after his return from the trip referred to.

The question involved in such a will is whether the testator intended the validity of the will to be contingent upon the happening of the condition therein named, or merely to show the circumstances under which the will was made. Damon v. Damon, 8 Allen 192; Schouler, Wills (2d ed.), sec. 286. The English rule very strongly favors construing a will as non-contingent whenever this can be done reasonably. Porter, Goods of, L. R. 2 P. & D. 22.

And the rule is sometimes strained in its application. Dobson's Case, L. R. 1 P. & M. 88; Martin's Case, L. R. 1 P. & M. 388. The same preference for non-contingent wills is found in the American decisions, but the difficulty of its application under varying circumstances makes the results most inconsistent when compared. Cody v. Conly, 27 Gratt. 313; Redfield, Wills (2d ed.), 176; Schouler, Wills, sec. 288. In the leading case of French v. French, 27 W. Va. 432, a will is held non-contingent which is worded: "Let all men know hereby, if I get drowned this morning, March 7, 1872, that I bequeath," etc.; whereas in Dougherty v. Dougherty, 4 Metc. (Ky.) 25, a will is held conditional which reads: "As I intend starting in a few days for the State of Missouri, and should anything happen that I should not return alive, my wish is," etc. Many of the decisions turn on finely drawn distinctions. The principal case fairly represents the borderland between contingent and noncontingent wills. Tarver v. Tarver, 9 Pet. 174; Robnett v. Ashlock, 49 Mo. 171; Ex parte Lindsay, 2 Bradf. (N. Y.) 204; Morrow's Appeal, 116 Pa. St. 440.