A number of suggestions have been made. Some have suggested codification of all laws. Codification, however, has proven a disappointment in many cases, because of its unbending rigidity. Others have suggested that courts be forbidden to write opinions at all and that the rule of stare decisis be abandoned. This remedy is rather too harsh, and while it would probably be effectual as a surgical operation it should be resorted to only as a last resort. Some have suggested that the opinions of the Supreme Court of the United States be regarded as controlling on all questions of substantive law passed upon by that court. This is not an impracticable suggestion but would meet with consider

NOTES OF IMPORTANT DECISIONS. PARENT AND CHILD-LEGITIMATION OF BASTARD BY FATHER SUPERIOR ΤΟ RIGHTS OF NATURAL MOTHER.-While there is absolutely the same code of morality for man as for woman, practically even the courts understand that the attitude of society is very different to the woman who has sidestepped from the paths of virtue and toward the offspring of her sin than it is toward the man under the same circumstances. This fact judicially recognized, led the Supreme Court of Oklahoma, in determining the best interests of an illegitimate child, the "bone of contention" in a recent case, to award the child to the father. This was the decision in the case of Allison v. Bryan, 97 Pac. 282.

In this case the father of the child married a woman other than the mother, and sought to legitimize the child by adopting it into his family. To this arrangement the mother objected, asserting that she was entitled to the

appeared to be able to care for the subject of the controversy. The court held that the primary question was the preparation of the infant to confront the world in his later life. If he remained by his mother's side the circumstances of his birth would be a blighting handicap to him, for which his mother's care would constitute no antidote. If he remained in his father's house, he would be surrounded by conditions which would relieve him entire

much after the manner of the Law of Citations of Valentinian, which gave to the works of Paulus, Ulpian, Papinian, Gaius and Modestinus, quasi statutory force. Bryce's Studies in History and Jurisprudence, p. 685. There is much to be commended in this idea.

We have no suggestion of our own to make at the present time although the subject has given us frequent occasion for deep meditation and consultation with the authorities.

The appellate tribunals, it may be taken. for granted, will be the last to oppose any remedy for the present overwhelming, unof satisfactory and irreconcilable course judicial decision in this country. On our part, we shall welcome suggestions of the bar looking to a solution of this perplexing situation,

place in society. Even though the mother object, the court contended a father is entitled to the child's custody for the purpose of legitimation.

TAXATION-TAXING THE RIGHT TO LABOR AT ANY PARTICULAR TRADE OR CALLING.-Indeed, it must be admitted, that the efforts of the legislature to burden legitimate enterprise to pay for extravagant appropriations of revenue has gone far enough, and, while the right to impose a privilege tax on trade or business is not questioned, courts should take the attitude shown by the Supreme Court of Mississippi in a recent case and construe all such legislation strictly against the state and in the interest of the rights and enterprise of the citizen which are thus restricted.

It appears that the Mississippi code provides a privilege tax on each individual, firm, or corporation doing a plumbing business in municipalities of a certain population. Wilby, a plumber performing his own labor, hiring no assistants, did plumbing work for a barber. While so engaged, the sheriff demanded of

him a privilege tax. On his refusal to pay, he was indicted for carrying on a plumbing business without paying the tax. In the recent case of Wilby v. State, 47 South. 465, the Supreme Court of Mississippi, in unmistakably hostile terms, censured legislation the purpose of which was to promote monopolies and deny the constitutional right of citizens to follow any ordinary calling untrammeled, and held that a man carning his living by his brawn and muscle, by the sweat of his own brow, by doing plumbing work, was not engaged in the plumbing business within the statute.

SIONS BY TELEPHONE.-While the law is rather conservative in accepting the testimony of every new invention or giving it a place of recognition as an authorized channel of testimony, it does not lag as far behind the procession as our newspaper friends would have the public believe. Especially was this truth brought home to the defendant in the recent case of Chapman v. Commonwealth, 112 S. 507, where a conviction was allowed to rest on an admission over the telephone.

In the principal case, several men having taken potations from a three-gallon whisky vessel too freely, two of them became engaged in an altercation. During the strife, one of them was stabbed and died quickly. Some one giving the name of appellant called up a doctor telling him that the man slain required attention, and adding that he had stabbed him. Thereafter appellant told sewe one else that he had called up the doctor. It appeared that no other communication had been received by the doctor relative to this affair. Appellant contended that this conversation over the telephone was inadmissible. The court of appeals of Kentucky held that there was sufficient evidence to admit the conversation.

SURGEONS-REGIS

PHYSICIANS AND TRATION OF OSTEOPATH AS PHYSICIAN. -The read of the medical politicians to shut out all "irregular" practitioners is indeed a hard one a d the results very disappointing. The ostopca has been 2 tumbling block displaying pr.veling tendencies of Leing able to meet ev. cry attack end actra ly to prosper under them, unal in the lead.; state of the union, New Yo.k, (steopaths have finally come to be regarded as physicians. The New York medes tried recently to remove this "thorn in their ish" but without avail. It seems that the sanitary code of New York city requires every physician to register his name with the department of health. Unless one were so registered, any patient dying while attended by him would be subjected to a coroner's inquest, in

order that a burial permit might be obtained. The respondent in Bandel v. Department of Health, 85 N. E. 1067, appreciating the disadvantage under which an osteopath not registered as a physician was placed, owing to the fact that few people would employ one whose services might be followed by the unpleasant inquest of a coroner, applied for registration, which was refused. The court of appeals of New York held that he was entitled to registration, which might be compelled by mandamus.

RESTRICTIONS IN DEEDS AS TO BUILDINGS AND BUILDING LINES.

Introductory Remarks.-One might suppose, for some reasons, that decision as to the rights of grantors and rintees and of grantees inter sese upon questions arising out of building restrictions would be more abundant in the western part of this country than in the eastern or older portion. In the former the subdivision and platting of tracts of land for new towns and the growth and change of conditions in cities are more in evidence than on the eastern side. But the reverse of the above supposition is true, but later on this may be changed, as our conditions bring their aftermath. It is found that Massachusetts and New Jersey lead all the ether states in abundance of precedent as to such restrictions, with New York and Pennsylvania coming after these two states. In Boston the idea of building line and unif rmity, so far as minimum cost was concerned, in residence districts came early into evidence. Later in New Jersey, the Luilding and front line restriction features were applied to seaside resorts, with the purpose both to create desirable neighborhoods and secure unobstructed prospect, oceanwards, for the wealthier people, whom it was desired to induce to erect a superior class of buildings. Of the western states, Michigan presents more adjudication on this subject than any other, with a strong follower in Illinois.

The restriction idea is very greatly adopted nowadays as to those sections of large

cities sought to be developed into high class residence property. As to business sections it has been assumed that the interest of an owner and convenience of the public will generally carry owners to the street line and the class of structure placed thereon may well be left to the demands of trade, subject, of course, to such municipal regulations as may be reasonably imposed. The purpose in residence neighborhoods is to create in behalf of grantor an easement and servitude as to land remaining unsold; a like easement and servitude in grantee against grantor and in grantees inter sese. General Plan for Residence Neighborhoods. While the courts appear to take judicial notice of the fact, that such a mutual easement and servitude, under a general plan, is a very valuable appurtenance to each lot holder in a residence neighborhood and slight violations of any restriction common to all grantees should be corrected for fear of gradual encroachment by one and then another, finally destroying the plan's very integrity, some of the cases. seem to require very strict proof as to the existence of such a plan, presuming little or nothing as to its actual existence, even though it may not be readily seen how a particular restriction might be of benefit to a grantor, unless the idea of uniformity is involved.

This seems to the writer to have been

the attitude of a court where the general scheme theory has often appeared in adjudication.2 In that case some deeds from the common grantor contained restrictive clauses and others none, and the court held that as those which were imposed might have been either for the benefit of his remaining land or to enable the grantor more advantageously to deal with his property, the burden was on a subsequent grantee to show the restriction was for the former. It is not readily perceptible how the imposing of a building restriction (and it was

(1) Attorney General v. Algonquin Club, 153 Mass. 447; Attorney General v. Williams, 140 id. 329; Bagnall v. Davies, id. 76.

(2) McNichol v. Townsend, (N. J. Ch.), 67 Atl. 938.

such in that case) could be supposed to be of benefit to the grantor, except as creating an easement in the remaining land, as certainly one may not sell, for a larger price, restricted than unrestricted property, if it alone is restricted.

3

And a late case in Massachusetts, which spoke, as above said, about minor violation of restrictions in a general scheme, held, in a case where eight city lots, belonging to one owner, were advertised to be sold under restrictions, common to all, but only three were knocked down to bidders; that the deeds to these three containing the restrictions should also have carried an express stipulation as to the remaining lots. The advertisement was regarded, as at best, but a memorandum not enforceable as to a purchaser of the remaining five lots, he buying seven years later, because it was barred by statute of limitations. When it is remembered that the later conveyance recited that it was "subject to such restrictions as are now in force and applicable to the granted premises, if any there be," this appears to be an exceedingly drastic appliIcation of the statute of limitations.

Explicitness of Restrictive Covenants.— It would seem that quite as much definiteness in description of restrictions is required between grantor and grantee and between grantees themselves, in a general scheme, as where the restriction is imposed by a grantor for his sole benefit as respects an adjoining lot. As an example of excessive strictness in the last named kind of case is the decision of the Pennsylvania supreme court.1

Where the restriction enured to other grantees, in a general scheme, it was held that, though the deeds said that, "no building shall be erected upon the granted premises to cost less than $2,500, and but one building, one private stable excepted, shall be erected or placed thereon," this did not prevent an owner of two adjoining lots from building his residence on one, and his

private stable, costing not less than $2,500, on the other. The court thought there was a possibility that the scheme meant that the principal building on each lot was to be a dwelling house, but there was nothing in the circumstances under which the deeds were given to compel that conclusion."

Also, it was held where the restriction was to a single dwelling house only "being erected, placed and maintained on said lot," the refused to enjoin a dwelling house already erected being used as a gold-cure institute, the house not being altered in construction either inside or outside. The opinon said: "We do not determine whether any possible change in the manner of use would be a violation of the restriction. It might for example be wholly given up as a residence and used only for purposes of trade. But its use as a residence continues with some approach, also, towards a use as a private hotel or a private hospital. The words of the restriction are not very strong. They do not say that no building upon the granted land shall be used for any other purpose than as a private residence for a single family without boarders, or even that no building shall be used otherwise than as a single dwelling house. While a reasonable construction is given to the words, doubts are to be resolved in favor of the grantee." The best illustrations of strict construction are found in "flats".cases, some of which here follow.

Flat and Apartment House Cases.-The modern plan of living in flats and apartment houses and such classes of buildings as are seeking greater recognition in residence districts has brought forth frequent adjudications, in some of which a distinction between a flat and an apartment has been attempted to be made.

It has been claimed that the separation of two families in a "flat-house" is about as complete and entire as where they live on

(5) Peck v. Hortington, 189 Mass. 110, 75 N. E. 133.

(6) Stone v. Pillsbury, 167 Mass. 332, 45 N. E. 768.

either side of one building, and that the entire question is one of nomenclature rather than essence, when the latter kind of structure is not forbidden by a restriction. It cannot be said that either kind of a structure is, presumptively, a derogation from a residence neighborhood, if the flat or apartment house is in keeping with other conditions so far as external appearance or internal arrangement is concerned." An attempt at distinction has been made where flats were excluded, ex vi termini, between a flat and an apartment house, but these were held to be interchangeable descriptions. "It is only when the rent is higher there is used the politer terms It apartment' or 'apartment houses.' "'8 was also said that the fact that flat houses were usually of two stories only and an apartment house had two or more stories did not serve to create any distinction with respect to the purpose disclosed in the restriction considered.

The St. Louis Court of Appeals, considered that there might be "some ambiguity in the covenant as to whether or not it prohibited one house planned for plural use as a dwelling," where it provided for "one dwelling house on each lot," but that there was none as to its being effective against one building with a double set of flats, the court arguing, in effect, that the provision certainly excluded such a building used as two flat house. That argument looks sound on the theory that four flats ought not to be in better situation than two residences, but it is a little difficult to see, if there was no restriction at all against flats, as flats, why a four flat building would be any different from a two flat, nor does it seem clear how the appearance of the neighborhood would be any more derogated from as an anti-flat district, if the dividing wall between flats were on a lot than if on the dividing line of two lots. So viewing the matter the quesnecessary for decision would be,

tion

cept for the purposes of a dwelling only." But whether this holding was thus made because of practical construction by the plaintiff and others, there is some uncertainty.

A flat, as we have seen the St. Louis Court of Appeals also held, is not a twofamily house separated by a dividing wall.14

The case of Hutchinson v. Ulrich,15 appears, whenever it has been elsewhere discussed, either disapproved or distinguished. The covenant provided for "single dwellings only on each lot." It was shown that the property, all lots of which were sold by deeds containing same restriction, was in the midst of a district in which flats and apartment houses abounded. Therefore the court thought, that, if, under such circumstances, it had been intended to have excluded flats, it would have been so said in specific terms. It was said: "Restric

(10) Park v. Easton, 115 id. 171, 89 S. W. 586. (11) Harris v. Roraback, 137 Mich. 292, 100 N. W. 391, 109 Am. St. Rep. 681.

(12) Bagnall v. Young, 151 Mich. 69, 114 N. W. 674.

(13) James v. Irvine (Mich.). 104 N. W. 631. (14) Lignot v. Jackle (N. J. Ch.), 65 Atl. 221. (15) 145 Ill. 336, 34 N. E. 556, 21 L. R. A. 391.

tions are not favored, but will be enforced where the intention of parties is clear."

Front Building Line and Projections Across.-Unless projections such as bay windows, porticos or piazzas are provided for in the deed specifying a building line these have been held to infringe the covenant.ro But such an infringement has been held not to preclude a grantee, enjoying a building line easement, from complaining of an independent structure like a pavillion," or bath house, which obstructed his sea-view. If bay windows and piazzas are expressly allowed to extend over the line and there is nothing stated as to shape or dimensions or how far over they may extend, and it cannot be fairly said that the addition is not a bay window or a piazza, there will be deemed such a vagueness about the restriction as forbids its enforcement against any bay window or piazza, however greatly it extends beyond the line.15

Discretion of Court as to Enforcement of Restriction.--It has been held and I think the principle is generally admitted, that the rule of estoppel is more rigidly enforced against the original proprietor of land creating a servitude and easement upon and among grantees, than against grantees. There may be estoppel, however, as to either,19 the court judging whether the violation has been so material and substantial that it ought to interfere.

As showing how acquiescence in violation may be different in its effects, there is intimation in a New Jersey case that facts from which inference of abandonment of a general plan was drawn as to a general proprietor, might have been otherwise as to an individual lot owner. Against grantor there may be pleaded abandonment as well as estoppel, as this appears, while, of course, only estoppel is averrable against the grantee.

(16)

20

Bagnall v. Davies, 140 Mass. 76. Buck v. Adams, 45 N. J. Eq. 552; Bacon v. Sandberg, 179 Mass, 396, 60 N. E. 936.

(17)