unnecessary to protect the bank's interest; nor was it made in connection with an inquiry into the act or a prosecution thereof. This abuse of privilege, though unintentional, renders the defendant liable.

MUNICIPAL CORPORATIONS - POLICE POWER — VALIDITY OF ORDINANCE PROHIBITING CIRCULATION OF A NEWSPAPER. The municipal council of North Bergen, N. J., passed an ordinance forbidding the circulation within its limits of a German newspaper. The enforcement of the ordinance was restrained until final hearing, and the defendant appealed. Held, that the restraint be continued. New Yorker Staats-Zeitung v. Nolan, 105 Atl. 72 (N. J.). An ordinance passed under the general exercise of police power must be reasonable; that is, it must tend in an impartial manner to promote public health, morals, or welfare by methods that are adapted to the purpose and are not unduly oppressive. Zion v. Behrens, 262 Ill. 510, 104 N. E. 836; State v. Starkey, 112 Me. 8, 90 Atl. 431; Tolliver v. Blizzard, 143 Ky. 773, 137 S. W. 509. Thus ordinances requiring bicycles to carry lights after dark, or forbidding automobiles to run on country roads after sunset, are valid. In re Berry, 147 Cal. 523, 82 Pac. 44; City of Des Moines v. Keller, 116 Iowa, 648, 88 N. W. 827. But an ordinance forbidding vehicles other than those propelled by animals to use the streets is void. Bogue v. Bennett, 156 Ind. 478, 60 N. E. 143. So also an ordinance regulating laundries was held invalid because it tended to discriminate against Chinamen qua Chinamen. Yick Wo v. Hopkins, 118 U. S. 356. Recently the New Jersey court seems to have overlooked such discrimination in upholding an ordinance forbidding aliens to operate "jitneys." Morin v. Nunan, 103 Atl. 378 (N. J.). In the principal case, however, it properly forbids an unreasonable personal discrimination.

NEW TRIAL · GROUNDS FOR GRANTING NEW TRIAL - JUDGMENT NOTWITHSTANDING THE VERDICT. - The plaintiff in his statement of claim alleged that he was a customer of the defendant bank, that acting under the advice of its manager he made an investment in a security which turned out to be worthless, and that the advice was negligently given. The defendant denied that the advice was given negligently, and denied that the manager was acting within the scope of his authority. In answer to questions the jury found that the advice was negligently given by the manager and that he was acting within his authority in giving the advice; and they gave a verdict for the plaintiff. The defendant appealed to the Court of Appeal, asking for judgment or a new trial, on the ground (inter alia) that there was no evidence that the manager in giving the advice was acting within the scope of his authority. This point was not made by the defendant at the trial. The Court of Appeal decided that there was in fact no evidence of the manager's authority, and ordered judgment to be entered for the defendant. Held, that the order should be affirmed. Banbury v. Bank of Montreal, [1918] A. C. 626.

For a discussion of this case, see NOTES, page 711.

CLOSE

PRINCIPAL AND SURETY-ACCELERATION OF MATURITY - DUTY TO DISDISCHARGE OF SURETY. - By an agreement between the plaintiff payee and the maker all notes were to become due four months after default on any one. The defendant refused to go surety for a certain amount on one note, but, being unaware of the agreement accelerating maturity, consented to and did sign as surety, at the maker's request, a series of notes for a similar amount. The plaintiff payee had notice of the defendant surety's refusal, but did not disclose the agreement. Held, that defendant is liable to the payee on the original due dates. Hatfield v. Jackway, 170 N. W. 181 (Neb.).

If, at the inception of the relation, the creditor has knowledge of material facts, unknown to the surety, increasing the ordinary suretyship risks, a failure to disclose them will discharge the surety. Damon v. Empire State Surety Co.,

161 App. Div. (N. Y.) 875, 146 N. Y. Supp. 996; First National Bank v. Clark, 59 Colo. 455, 149 Pac. 612; Bidcock v. Bishop, 3 Barn. & Cr. 605. See Warren v. Branch, 15 W. Va. 21. The mere non-disclosure is sufficient; the creditor need not have a fraudulent motive. Railton v. Matthews, 10 Cl. & Fin. 934; Sooy v. State, 39 N. J. L. 135; Damon v. Empire State Surety Co., supra. This defense is generally founded on fraud. Bellevue Bldg. & Loan Ass'n v. Jeckel, 104 Ky. 159, 46 S. W. 482; Lee v. Jones, 17 C. B. (N. S.) 482; Damon v. Empire State Surety Co., supra; Sooy v. State, supra. See I STORY, EQUITY JURISPRUDENCE, 14 ed., § 305. It is submitted, however, that the defense should be variation of risk which is based on equitable grounds. See 16 HARV. L. REV. 511. Thus, if the creditor has knowledge of facts which increase the surety's risk and also knows or has reasonable cause to believe that the surety is unaware thereof, then a duty to disclose should be imposed on the creditor. In the principal case, the agreement accelerating maturity imposed a heavier burden on the principal which, since it might interfere with the enforcement of the surety's rights, was a variation of the surety's risk. The defendant meant to guard against this by refusing to sign one note for the full amount, and as the creditor had notice, he was under a duty to disclose.

PROFITS À PRENDRE WHAT CONSTITUTES AN ABANDONMENT. - The owner of a farm conveyed part thereof, a slate quarry, to the predecessor of the plaintiff, reserving for himself, his heirs, and assigns the privilege of removing all waste slate resulting from the operation of the quarry. Thereafter, the owner conveyed the remainder to the defendant's predecessor, but reserved no right of way, thereby leaving himself without means of access to the quarry. For thirty-three years neither the grantor nor his heirs exercised the right to remove the slate, after which period the heirs granted all rights under the reservation to the defendant. The plaintiff seeks to restrain the defendant from entering his premises to remove the slate. Held, that the injunction be granted. Mathews Slate Co. v. Advance Ind. Supply Co., 172 N. Y. Supp. 830. Mere nonuser, however long continued, cannot operate as an abandonment of an easement created by grant. Arnold v. Stevens, 24 Pick. (Mass.) 106; Welsh v. Taylor, 134 N. Y. 450, 33 N. E. 896; WASHBURN, EASEMENTS, 4 ed., 717. But it has been held that where the easement has been acquired by prescription, nonuser without more for the statutory period will extinguish the right. Browne v. Baltimore M. E. Church, 37 Md. 108. See also Sayles v. Hastings, 22 N. Y. 217, 224. Jewett v. Jewett, 16 Barb. (N. Y.) 150, 157. And this distinction has been adopted by statute. CAL. CIV. CODE, § 811; OKLA. REV. LAWS, 1910, § 6633. The distinction seems unsound, since prescription is based upon the presumption of a grant, and it has been disregarded in many cases. See Ward v. Ward, 7 Exch. 838; Veghte v. Raritan Water Power Co., 19 N. J. Eq. 142, 156. But where nonuser is accompanied by adverse possession for the statutory period, it is clear that in both cases the right is barred. Horner v. Stilwell, 35 N. J. L. 307; Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021; McKinney v. Lanning, 139 Ind. 170, 38 N. E. 601. Also, where nonuser is coupled with some act showing clearly the intent to abandon the easement, it will be extinguished. Snell v. Levitt, 110 N. Y. 595, 18 N. E. 370; Vogler v. Geiss, 51 Md. 407; Pope v. Devereux, 5 Gray (Mass.) 409. The duration of the nonuser, however, is only important in that it tends to strengthen the presumption of an abandonment. Queen v. Chorley. 12 Q. B. 515; Canning v. Andrews, 123 Mass. 155. In the principal case the nonuser extended through a period of thirty-three years, and the grantor by alienating the farm without reserving for himself means of access to the quarry, showed clearly an intent to abandon the right. Though a profit and not an easement was involved, it made no difference in the application of the above principles and the court correctly held that the profit had been abandoned.

PUBLIC SERVICE COMPANIES - MUNICIPAL GRANT TO USE STREETS - ExPIRATION OF GRANT. The complainant owned a system of tracks upon the greater part of which the municipal grants had expired. The defendant city enacted an ordinance providing, inter alia, a maximum fare of five cents on any line in the city operated without a grant fixing the rate of fare. In a bill to enjoin the enforcement of these regulatory provisions, the complainant alleged that an industrial necessity required the operation of the non-franchise lines, and that the enforcement of the ordinance would result in a deficit to the complainant. Held, that the rate-fixing provisions were confiscatory and their enforcement should be enjoined. Detroit United Railway v. Detroit, 39 Sup. Ct. Rep. 151.

A public utility, so long as it retains its mandatory or general charter, may not abandon its service to the detriment of the public. Colo. & S. Ry. Co. v. State Commission, 54 Colo. 64, 129 Pac. 506; State v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. 719. See 26 HARV. L. REV. 659. The same should be true at the expiration of a municipal grant to use the streets, so long as the utility retains its state charter, and there is a public necessity. See Denver v. Denver Union Water Co., 246 U. S. 178, 190; State v. Spokane St. Ry. Co., supra. Contra, Laighton v. Carthage, 175 Fed. 145. Conversely it would seem the utility could compel permission to continue in the city streets, at least until a substitute was provided. See 31 HARV. L. REV. 1036. But usually by constitution or statute municipal consent must be obtained before the utility may exercise its state franchise. See Detroit v. Detroit City Railway, 64 Fed. 628, 638; Morriston v. Tenn. Tel. Co., 115 Fed. 304, 305, 306. See 3 DILLON, MUNICIPAL CORPORATIONS, 5 ed., § 1226. This practically leaves the city the sole judge of the public necessity to have the utility operate. So it is held the city may oust the utility company when the municipal grant to use the streets terminates. Detroit United Railway v. Detroit, 229 U. S. 39; Laighton v. Carthage, supra. The city may then impose any conditions precedent to the use of the streets by that utility. In the principal case the ordinance was substantially a statement of such conditions, instead of a grant to the utility as was held in the majority opinion. The dissenting opinion would accordingly be correct if the conditions were imposed when the municipal grant expired. But here, with permission, the utility used the streets for four years thereafter. Such a revocable license becomes irrevocable if further investment was made with the city's knowledge. Rochdale Canal Co. v. King, 16 Beav. 630; Spokane Ry. Co. v. Spokane Falls, 6 Wash. 521, 33 Pac. 1072.

- REGULATION

PUBLIC SERVICE COMPANIES ABANDONMENT OF SERVICE AND DISMANTLING OF PLANT WITHOUT CONSENT OF PUBLIC UTILITIES COMMISSION. The mortgagees of a railroad in foreclosure proceedings asked that a receiver be appointed, operation discontinued, and the plant dismantled. A receiver was appointed, the railroad company appearing and consenting thereto. Upon application by the receiver, the district court ordered that service be abandoned and the plant dismantled. The Public Utilities Commission thereupon moved the court to vacate the order alleging that because of its power to regulate service (1913 SESS. LAWS OF COLORADO, C. 127, § 24), the commission had exclusive jurisdiction over the cessation of service and dismantling of the railroad. Held, that the order be vacated. People ex rel. Hubbard v. Colorado Title & Trust Co., 178 Pac. 6 (Colo.).

For a discussion of the principles involved in this case, see NOTES, page 716.

CONSIGNMENT OF

SALES TITLE OF GOODS SUBJECT TO BILL OF LADING GOODS UNDER MISTAKEN BELIEF AS TO EXISTENCE OF CONTRACTUAL OBLIGATION. The consignor, who had agreed to sell some flour to a third party, consigned the flour to the plaintiff under a mistaken impression that he had

agreed to sell it to him. The plaintiff, believing in good faith that the goods were intended for him, paid a bill of exchange drawn on him, to which an order bill of lading was attached, and demanded the flour from the carrier. The consignor had, in the meantime, discovered his mistake and had induced the carrier to return the flour to him. The plaintiff sued the railroad company for conversion of the flour. Held, that he could not recover. Jones v. Chicago, B. & Q. R. Co., 170 N. W. 170 (Neb.).

Generally, to-day, the bona fide purchaser of an order bill of lading acquires an indefeasible title to the goods, and the carrier may not deliver them to another. Munroe v. Philadelphia Warehouse Co., 75 Fed. 545; Commercial Bank v. Armsby, 120 Ga. 74, 47 S. E. 589; UNIFORM Sales ACT, §§ 33, 38. But see Adrian Knitting Co. v. Wabash Ry. Co., 145 Mich. 323, 108 N. W. 706. Cf. Shaw v. Railroad Co., 101 U. S. 557, 565. The question in the principal case is whether the plaintiff is in fact the purchaser of the bill of lading and of the goods. Here, as everywhere in contractual law, it is expressed, not secret, intention that is considered. Mansfield v. Hodgdon, 147 Mass. 304, 17 N. E. 544; Wood v. Allen, 111 Iowa, 97, 82 N. W. 451. See WILLISTON, SALES, § 5. By sending forward the bill of exchange with bill of lading attached, the consignor unequivocally expressed an intention to sell the flour to the plaintiff. Evans v. Marlett, 1 Ld. Raym. 271; Wigton v. Bowley, 130 Mass. 252. The plaintiff, in good faith, so understood the consignor's intention and acted on it, completing the sale. Moreover, if actual and not expressed intention were considered, the consignor, although he also intended to sell to one to whom he was under contractual obligations, primarily intended to sell to the person to whom he consigned the goods. It is this primary intention that must control. Edmunds v. Merchants' Transportation Co., 135 Mass. 283. Cf. Cundy v. Lindsay, 3 A. C. 459. See WILLISTON, SALES, § 635. The principal case, therefore, cannot be supported.

WAR ALIENS-STATUS OF ALIEN ENEMIES IN THE COurts of a BELLIGERENT. - In a tort action, it appeared at the trial that the plaintiff was an alien enemy, a subject of Germany, but resident in the United States and not in internment. The trial court nonsuited the plaintiff. Held, that the nonsuit was improper. Heiler v. Goodman's Motor Express Van & Storage Co., 105 Atl. 233 (N. J. L.).

It is uniformly held that an alien enemy resident in the hostile territory cannot maintain an action as plaintiff. Brandon v. Nesbit, 6 T. R. 23; Le Bret v. Papillon, 4 East, 502; Rothbarth v. Herzfeld, 179 App. Div. 865, 167 N. Y. Supp. 199. The modern basis for these decisions that to allow a recovery in such a case would by so much diminish the resources of the home country and strengthen the enemy country has no application where the plaintiff resides in the home territory. See Hepburn's Case, 3 Bland, Ch. (Md.) 95, 120; Janson v. Driefontien, [1902] A. C. 484, 505; Porter v. Freudenberg, [1915] 1 K. B. 857, 868. Further, the common-law rule allowed an enemy subject resident in the home territory to sue on the theory that, by permitting him to remain a resident, the sovereign took him under his protection. Wells v. Williams, 1 Ld. Raym. 282; Clarke v. Morey, 10 Johns. (N. Y.) 69. The same principles have been recognized in our courts and the courts of England and Canada during the present war. Topay v. Crow's Nest Pass Coal Co., 29 West. L. R. 555 (Canada); Princess Thurn & Taxis v. Moffett, [1915] 1 Ch. 58; ArndtOber v. Metropolitan Opera Co., 182 App. Div. 513, 169 N. Y. Supp. 944. See 28 HARV. L. REV. 312. See also 31 HARV. L. REV. 470. One difference should be noted between the English and the American cases. England, applying the common-law rule, allows an enemy subject, even though he has been interned as a civilian prisoner of war, to maintain an action. Schaffenius v. Goldberg, [1916] 1 K. B. 284. Cf. Sparenburg v. Bannatyne, 1 Bos. & P. 163.

But in the United States an interned subject of an enemy country was, by the President's proclamation of February 5, 1918, in accordance with a provision in the act, brought within the term "enemy" in the Trading with the Enemy Act of October 6, 1917. See 40 STAT. AT L. 411. This has the effect of putting such interned enemy subjects under a disability to sue except in the limited class of suits specifically mentioned by the act. See Tortoriello v. Seghorn, 103 Atl. 393, 394 (N. J. Eq.); Arndt-Ober v. Metropolitan Opera Co., 182 App. Div. 513, 519; 162 N. Y. Supp. 944, 948.

WARRANTY - IMPLIED WARRANTY OF PLANS AND SPECIFICATIONS. — The plaintiff contracted to build a dry dock for the government in accordance with plans and specifications prepared by government officials. These provided first, for the relocation of an intersecting sewer, which work the plaintiff performed. Due to a defect in the plans the sewer proved insufficient and burst, flooding the excavation of the dry dock. The government refused to assume responsibility for the damage done, and upon the plaintiff's refusal to continue with the work annulled the contract. The plaintiff sued for work done and his profits. Held, that he could recover. The United States v. Spearin, U. S. Sup. Ct. Off., October Term, 1918, Nos. 44 and 45.

No supervening difficulty short of making performance impossible will excuse a party from completing that which he has contracted to do. Walton v. Waterhouse, 2 Wms. Saunders, 422 a, note 2; Beebe v. Johnson, 19 Wend. (N. Y.) 500; Phillips v. Stevens, 16 Mass. 238. Thus, destruction by fire, lightning or subsidence of the soil will not warrant a refusal on the part of the builder to render full performance, or entitle him to compensation for what he has already done. Adams v. Nichols, 19 Pick. (Mass.) 275; School District v. Dauchy, 25 Conn. 530; Stees v. Leonard, 20 Minn. 494; Dermott v. Jones, 2 Wall. (U. S.) 1. But where the difficulty results from defective plans and specifications, the general rule has been held not to apply, since the owner impliedly warrants the sufficiency of the plans he submits. Bentley v. State, 73 Wis. 416, 41 N. W. 338; Faber v. City of New York, 223 N. Y. 496, 118 N. E. 609. Penn. Bridge v. City of New Orleans, 222 Fed. 737. The English and some American courts deny the existence of such a warranty. Thorn v. Mayor of London, 1 A. C. 120; Magnan v. Fuller, 222 Mass. 530, 111 N. E. 399; Leavitt v. Dover, 67 N. H. 94, 32 Atl. 156; Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S. W. 1061. It seems erroneous to lay down a hard-and-fast rule that an owner does or does not warrant his plans. The existence of an implied warranty, as in the law of sales, should depend upon whether there has been a justifiable reliance by one on the other's judgment, which the particular facts of each case alone can decide. See Kellogg Bridge Co. v. Hamilton, 110 U. S. 108; WILLISTON, SALES, 231. The respective knowledge of the parties, the opportunity for inspection by the builder, and the visibleness of the defects should all be considered in determining the question.

BOOK REVIEWS

INTERNATIONAL RIVERS. A Monograph based on Diplomatic Documents. By G. Kaeckenbeeck, B.C.L. Grotius Society Publications, No. 1. London: Street and Maxwell. 1918. pp. xxvi. 255.

"Et quidem naturali jure communia sunt omnium hæc: . . . aqua profluens..." (JUST. INST., II, 1, 1). At the Congress of Vienna in 1815 a body of diplomats controlling the destinies of the world took up for the first time as a general European problem the question of navigation upon "international