472. Cf. Woodruff v. Wentworth, 133 Mass. 309, 314. The principal case is a further application of the general rule. In addition to there being stockholders unaware of the contract, it is manifest that the agreement by the corporation would not inure to its advantage. The corporation is to be made a mere selling agency subject to the will of the plaintiff, who is to reap the profits.

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INJUNCTIONS ACTS RESTRAINED INJUNCTION AGAINST HOLDING ELECTION ON UNCONSTITUTIONAL AMENDMENT. Plaintiff sued to enjoin the submission to popular vote of a proposed state constitutional amendment alleged to be in conflict with the Constitution of the United States. Held, that an injunction should not be granted. Weinland v. Fulton, 121 N. E. 816 (Ohio).

If plaintiff sued as an elector or citizen the court would refuse an injunction on the ground that equity does not protect political rights. Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683. Equity will protect a taxpayer, however, from misuse of public funds. Crampton v. Zabriskie, 101 U. S. 601. In a few states a taxpayer may enjoin the holding of an election where the statute or ordinance under which it was called is ultra vires. De Kalb County v. Atlanta, 132 Ga. 727, 65 S. E. 72; Solomon v. Fleming, 34 Neb. 40, 51 N. W. 304; Cascaden v. Waterloo, 106 Iowa, 673, 77 N. W. 333. See Layton v. Monroe, 50 La. Ann. 121, 23 So. 99. But the weight of authority is against this. Pfeifer v. Graves, 88 Ohio St. 473, 104 N. E. 529; Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; Dubuisson v. Election Supers., 123 La. 443, 49 So. 15; McAlester v. Millwee, 31 Okla. 620, 122 Pac. 173. Some courts say a taxpayer's interest is too remote and conjectural. Duggan v. Emporia, supra. Others lay down the general rule that equity will never interfere with elections. Copeland v. Olsmith, 124 Pac. 33 (Okla.). And where an election on an initiated measure was sought to be enjoined on the ground that the petitions calling the election were not regular, the court said an injunction would be an interference with the legislative department of the government. Pfeifer v. Graves, supra. The principal case differs from any of the above in that the authority for holding the election is perfectly valid, the alleged unconstitutionality being in the subject matter. The interference with legislative processes would therefore be much plainer than in the Pfeifer case. Hence even if plaintiff was a taxpayer and the election was a special one, neither of which appears in the report, the decision seems absolutely sound.

INJUNCTIONS ACTS RESTRAINED INJUNCTION OF STRIKES IN WAR TIME. - The defendants were instigating and conducting strikes in plaintiff's shoe factory. The strikes were accompanied by unlawful violence. The plaintiff was engaged in manufacturing military supplies for the United States government. Plaintiff sought an injunction. Held, that "all strikes for any cause whatever be enjoined for the duration of the war." Rosenwasser Bros. v. Pepper, 172 N. Y. Supp. 310.

For a discussion of this case, see NOTES, page 837.

MARINE INSURANCE

INSURANCE "HOSTILITIES," MEANING IN F. C. AND S. CLAUSE. The plaintiff reinsured a cargo with the defendant under a policy containing the usual f. c. and s. clause, the relevant words of which were, "warranted free from all consequences of hostilities or warlike operations." The cargo was damaged by the explosion of a bomb placed in the vessel while in a South American port by a German. No authorization or ratification of this act by the German government was shown. The plaintiff sued on the policy. Held, that he could not recover. Atlantic Mutual Insurance Co. v. King, 35 T. L. R. 164.

The court states correctly that the reinsurer has the burden of proving that the loss falls within the warranty. Munro, Brice & Co. v. War Risks Association, [1918] 2 K. B. 78. See Compania Maritima of Barcelona v. Wishart, 34

T. L. R. 251. The court further recognizes the principle that this warranty does not cover the acts of a private individual acting on his own initiative. If the warranty covers only the acts of agents of sovereign powers, the decision is wrong on primordial doctrines of agency. But the court holds that it includes acts done by a man when, "knowing that the settled and concerted policy of his government is to avail itself of the efforts of all its subjects to destroy enemy life and property as occasion offers, he uses such opportunity as presents itself in furtherance of that policy." Though this is not construing the policy against the underwriter, the result reached might well be the intent of the parties. This clause has always been construed liberally. Cf. Stoomvaart Maatschappij Sophie H. v. Merchants' Marine Insurance Co., Ltd., [1918] Weekly Notes, 322; Henry & MacGregor, Ltd., v. Marten, [1918] Weekly Notes, 224; William France, Fenwick & Co. Ltd. v. North of England Protecting Association, [1917] 2 K. B. 522. See 2 ARNOULD, MARINE INSURANCE, 9 ed., § 905.

INTERSTATE COMMERCE - CONTROL BY CONGRESS HOURS OF SERVICE ACT: APPLICATION TO TERMINAL COMPANY. - The Hours of Service Act applies to "any common carrier or carriers, their officers, agents, and employees" engaged in interstate commerce. (34 STAT. AT L. 1415.) The defendant operated a union freight station at Brooklyn under contracts with ten interstate railroads, receiving freight at their termini and transporting it by ferry and rail to its freight houses, and receiving likewise freight from Brooklyn shippers and transporting it to the docks of the several railroads. It was not chartered as a common carrier, did not hold itself out as such, and filed no tariffs with the Interstate Commerce Commission. Held, that the Hours of Service Act applies to the defendant. United States v. Brooklyn Eastern District Terminal, U. S. Sup. Ct., No. 155, October Term, 1918.

The decision is manifestly correct. The act would have applied to the carriers themselves in performing these services; the defendant is the agent of the carriers, and the act expressly includes agents. It has long been settled that the fact that all the acts done by a company are within one state does not excuse it from the regulation of interstate commerce. United States v. Colorado & Northwestern Railroad Co., 157 Fed. 321. See 21 HARV. L. REV. 447. The court, however, points out clearly that the defendant is itself a common carrier, that the nature of the company does not depend upon how it was chartered, nor upon what it professes, but upon what it does, and that the services of the defendant were of a kind ordinarily performed by a common carrier. There is ample authority for this position. United States v. Baltimore & Ohio Railroad Co., 231 U. S. 274; Union Stockyards Company of Omaha v. United States, 169 Fed. 404. See United States v. Sioux City Stockyards Co., 162 Fed. 556. Cf. Tap Line Cases, 234 U. S. 1. The Hours of Service Act has been liberally applied, in the light of its "humane purpose." Topeka & Santa Fe Railway Co. v. United States, 244 U. S. 336.

INTERSTATE COMMERCE - CONTROL BY STATES RIGHT OF INTERSTATE NATURAL GAS COMPANY SUPPLYING GAS TO LOCAL DISTRIBUTING COMPANIES TO ENJOIN ENFORCEMENT BY STATE COMMISSIONS OF CONFISCATORY RATES TO CONSUMERS. The corporation of which plaintiff was receiver was engaged in producing natural gas, chiefly in Oklahoma, transporting it through pipelines, and selling it to local distributing companies in Kansas and Missouri, receiving a percentage of their gross profits as its return. The state utilities commissions of Kansas and Missouri fixed rates to the consumers which were so low that the return to plaintiff would be wholly inadequate, and plaintiff sued to enjoin the enforcement of these rates on the ground that they constituted a burden on interstate commerce. Held, that no injunction should be granted, on the ground that the distribution by the local companies was no

part of the interstate commerce and therefore there was no direct burden on interstate commerce. Public Utilities Commission v. Landon, 39 Sup. Ct. Rep. 268. The proposition that the interstate transportation ceases on delivery to the local companies would seem untenable. Cf. Werner Sawmill Co. v. Kansas City Southern R. Co., 194 Mo. App. 618, 186 S. W. 1118, and Re Pipe Lines, 24 I. C. C. 1. Consequently there is a sufficiently direct burden on interstate commerce. But Kansas had a right under its police power to regulate the sale of natural gas within its borders, and the fact that some of this gas happened to be imported from Oklahoma constituted a merely incidental interference with interstate commerce. Such an interference will not invalidate state regulation. Standard Stock Food Co. v. Wright, 225 U. S. 540; Minnesota Rate Cases, 230 U. S. 352. In Missouri, however, all but an inconsiderable percentage of the natural gas consumed is imported from other states. Regulation by the Missouri commission therefore hardly appears to be an incidental burden, and the decision as to the Missouri rates would seem at least doubtful.

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LEGACIES ABATEMENT - DEFICIENCY DUE to WIDOW'S ELECTION BORNE PROPORTIONALLY BY RESIDUARY AND SPECIFIC LEGATEES. - A testator left a number of specific legacies and the residue to his son. The widow refused to abide by the provisions of the will and chose under statute to take what she would have received had her husband died intestate. Held, the specific and residuary legacies abate pro rata. In re Davison's Estate, [1919] 1 Western Weekly Rep. 497 (Saskatchewan).

When a widow is put to an election to take either under or against her husband's will, and she elects to do the latter, the rest of the estate should be distributed according to the testator's wishes if possible. Dunlap v. McCloud, 84 Ohio St. 272, 95 N. E. 774; In re Grobe's Estate, 101 Neb. 786, 165 N. W. 252; cf. Fennell v. Fennell 80 Kan. 730, 106 Pac. 1038. Contra, Gordon v. Perry, 98 Miss. 893, 54 So. 445. Thus the renunciation of a life estate in a trust does not deprive the remaindermen of their interest, but they are allowed to enjoy their estate at once unless such acceleration defeats the testator's intention. In re Disston's Estate, 257 Pa. 537, 101 Atl. 804; Smith v. Patch, 77 N. H. 75, 87 Atl. 252. But if the election to take against the will is detrimental to the estate, the loss is primarily to be borne by the residuary legatees. Lewis v. Sedgwick, 223 Ill. 213, 79 N. E. 14; Pittman v. Pittman, 81 Kan. 643, 107 Pac. 225; cf. Meek v. Trotter, 133 Tenn. 145, 180 S. W. 176. Contra, Devecmon v. Kuykendall, 89 Md. 25, 42 Atl. 963. And if it is possible to give the disappointed parties partial compensation out of the property renounced, the legatees other than those of the residue are preferred. Pace v. Pace, 271 Ill. 114, 110 N. E. 878; Adams v. Legroo, 111 Me. 302, 89 Atl. 63. The court in the principal case, in imposing the loss proportionally on all legatees alike, seems to overlook the general principle.

LIMITATION OF ACTION

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· COMPUTATION OF TIME - INCLUSION AND EXCLUSION OF FIRST AND LAST DAYS. By a deed executed on April 14, 1902, the defendant granted a period of ten years in which to cut and remove timber from his land. The deed also provided that if such timber were not removed at the expiration of the ten years the grantee was to have the option of extending the period. On April 15, 1912, April 14 having fallen on Sunday, the plaintiff, a mesne grantee, gave notice of his desire to extend. Held, that the option was exercised in time. United Timber Co. v. Bivins, 253 Fed. 968.

As a general rule, in the computation of time from a date or an event, the first day is excluded and the last included. Blake v. Crowninshield, 9 N. H. 304; Seward v. Hayden, 150 Mass. 158, 22 N. E. 629; McCulloch v. Hopper, 47 N. J. L. 189. Some courts hold, however, adopting an old common-law distinction, that where the period is to be reckoned from an event, as distin

guished from a date, both days are to be included. Bellasis v. Hester, 1 Ld. Raym. 280; Chiles v. Smith, 52 Ky. 460; Leavenworth Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114. On the other hand, to prevent hardship or forfeiture, the general rule has often been discarded, the first and last days being included or excluded as the case required. Lester v. Garland, 15 Ves. 248; Pugh v. Duke of Leeds, Cowp. 714; Price v. Whitman, 8 Cal. 417; Taylor v. Brown, 5 Dak. 335, 40 N. W. 525. The law is even more uncertain when the last day falls on Sunday. With respect to contracts the Sunday is generally excluded, and performance may properly occur on Monday. Campbell v. Life Assurance Society, 41 Bosw. 299; Hammond v. Life Ins. Co., 10 Gray (Mass.) 306; Everett v. Stewart, 2 Conn. 69. But in the computation of statutory periods there can be no extension of time. Alderman v. Phelps, 15 Mass. 225; Patrick v. Faulke, 45 Mo. 312; Harrison v. Sager, 27 Mich. 476. Contra, West v. West, 20 R. I. 464, 40 Atl. 6. Statutes providing for the exclusion of Sunday have changed the latter rule in many jurisdictions. U. S. REV. STAT., § 5013; N. Y. CODE CIV. PROC., § 788; KY. CIV. CODE PRAC., § 681. But curiously, these statutes have been considered as requiring performance on Saturday instead of permitting an extension until the following Monday. Frankfort v. Farmers' Bank, 20 Ky. L. 1635, 49 S. W. 811; Allen v. Elliott, 67 Ala. 432. Again, it has been held that these statutes have no application where the period in question covers a number of years. Williams v. Lane, 87 Wis. 152, 58 N. W. 77; Haley v. Young, 144 Mass. 364. The many fine-spun distinctions drawn by the courts relative to this question seem unjustifiable. Computation of time is a matter purely of technical construction, and no reason appears why a definite principle should not be formulated to apply equally to all cases. The rights and liabilities of parties with respect to a matter which so often leads to important consequences should be fixed and certain.

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MARRIAGE- VALIDITY MARRIAGE BY MAIL.-In a statutory action to recover damages for death caused by wrongful act, it was necessary for the plaintiff to show that she was the widow of the deceased. The deceased, while residing in Minnesota, had sent to the plaintiff, who was living in Missouri, a written agreement in duplicate, signed by him, whereby the parties undertook to assume from that date henceforth the relation of husband and wife. The woman had signed the papers and had sent one back to the man. Held, that this constituted a valid marriage. Great Northern Ry. Co. v. Johnson, 254 Fed. 683 (Circ. Ct. App.).

For a discussion of this case, see NOTES, page 848.

MUNICIPAL CORPORATIONS - LICENSES - VALIDITY OF ORDINANCES ALLOWING CONSTRUCTION OF BRIDGE OVER STREET AND VACATING STREET. The city council by ordinance authorized the defendant refining company to build a bridge across a public street connecting its syrup house with its can factory. Later the council passed another ordinance vacating that portion of the street within the limits of the defendant's property. The company constructed the bridge and fenced off both ends of the street. The plaintiffs petition to have the street reopened and the bridge and fences removed. Held, that the petition be granted. People ex rel. Burton v. Corn Products Refining Co., 121 N. E. 574 (Ill.).

It is settled that a municipality holds its streets in trust for the use of the public. Wiehe v. Pein, 281 Ill. 130, 117 N. E. 849; Winter Brothers v. Mays, 170 Ky. 554, 186 S. W. 127. Without express legislative authority a municipality may not grant to a private person the right to obstruct that use. Royster Guana Co. v. Lumber Co., 168 N. C. 337, 84 S. E. 346; Porche v. Barrow, 134 La. 1090, 64 So. 918. See 2 ELLIOTT, ROADS AND STREETS, 3 ed., § 836. In holding that a city has no power to authorize the construction of a bridge over

a public street solely for private use, the court in the principal case follows the weight of authority. Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 98 N. W. 969; Bybee v. State, 94 Ind. 443. But see Rothschild & Co. v. Chicago, 227 Ill. 205, 81 N. E. 407. See also 3 DILLON, MUNICIPAL CORPORATIONS, 5 ed., § 1176. It is submitted, however, that the overhead bridge relieves street traffic pro tanto and so is not an obstruction but is rather a legitimate highway use. Leitchfield Mercantile Co. v. Commonwealth, 143 Ky. 163, 136 S. W. 639; Kellogg v. Cincinnati Traction Co., 80 Ohio St. 331, 88 N. E. 882. As regards vacation of streets, power to authorize the same is customarily vested by the legislature in some municipal body. Lowden v. Starr, 171 Iowa, 528, 154 N. W. 331; Curtiss v. Charlevoix Golf Ass'n, 178 Mich. 50, 144 N. W. 818. This power, while discretionary with public officials, cannot be exercised arbitrarily. See People ex rel. Brooklyn Cooperage Co. v. Gokey, 177 App. Div. 61, 163 N. Y. Supp. 693; City of Goldfield v. Golden Cycle Mining Co., 60 Colo. 220, 152 Pac. 896; 3 ABBOTT, MUNICIPAL CORPORATIONS, §§ 939, 940. Furthermore, the vacation of a street must be primarily for public, not for private benefit. Sherwood v. City of Paterson, 88 N. J. L. 456, 94 Atl. 311. See Stevens v. City of Dublin, 169 S. W. 188 (Tex. Civ. App.); TIEDEMAN, MUNICIPAL CORPORATIONS, $308. In the principal case there was no evidence of benefit to the public through vacation of the street; the sole benefit accrued to the refining company. In fact, upon passage of the ordinance, the company fenced off the street. It seems, therefore, that the court properly declared this ordinance void.

PRINCIPAL AND SURETY-DEFENSES OF SURETY – CREDITOR'S FAILURE TO RECORD MORTGAGE. The defendant, payee of a note secured by a chattel mortgage, indorsed the note and assigned the mortgage to the plaintiff. The mortgage was never recorded. Consequently, the maker's trustee in bankruptcy took the chattel free of the mortgage lien. The plaintiff sued the defendant as indorser of the note. Held, that he is discharged. Auto Brokerage Co., Inc. v. Morris & Smith Auto Co., Inc., 174 N. Y. Supp. 188 (Sup. Ct.).

A creditor generally owes the surety no duty of affirmative action against the principal. The surety has no defense because the creditor's mere inactivity caused a loss of the latter's security, as by failing to foreclose a mortgage or suffering a judgment lien to expire. Sheldon v. Williams, 11 Neb. 272; Kindt's Appeal, 102 Pa. 441. This is because the surety can himself pay the debt and preserve the security. But where the creditor fails to do something which is peculiarly in his power to do, as recording a mortgage or other security, the surety should be discharged. Bennett v. Taylor, 43 Tex. Civ. App. 30, 93 S. W. 704; Sullivan v. State, 59 Ark. 47, 26 S. W. 194; Burr v. Boyer, 2 Neb. 265. Contra, Philbrooks v. McEwen, 29 Ind. 347; Westchester Mortgage Co. v. McIntire, 174 N. Y. App. Div. 525. In the present case, however, it does not appear that the defendant indorsed for the maker's accommodation. If his indorsement to the plaintiff was an independent transaction, then the indorser could have recorded the mortgage while in his hands. He is, then, as blamable as the plaintiff, and should not be discharged.

WILLS CONSTRUCTION GIFT TO A CLASS. A will read, "I give the residue of my estate to my late husband's nephews and nieces, as follows: to A, B, C, D, and E, to be equally divided between them, share and share alike.” Three of these legatees predeceased the testatrix. Held, that their shares should go intestate. In re Deming's Will, 174 N. Y. Supp. 172.

In the construction of wills there is a general presumption against intestacy. Meiners v. Meiners, 179 Mo. 614, 78 S. W. 795. This is especially true where there is a residuary clause, because it shows the testator meant to dispose of all his property by will. Welsh v. Gist, 101 Md. 606, 61 Atl. 665. Neverthe