42 HARVARD LAW REVIEW, sale given in the will, pay off the mortgage, and assign dower out of the surplus to the extent of one-third the value of the unincumbered land. Held, that dower is restricted to one-third the value of the equity of redemption, and that the widow must contribute to pay off the debt, and cannot throw the whole upon the heir. The power of sale in the will shows no intention of the testator to vary this rule. Burnett V. Burnett, i8 Atl. Rep. 378 (N. J.). , , . , , . The case contains an able discussion of a point on which there is a remarkable dearth of authority. Dower attaches only to legal estates, never to equitable. In joining in the mortgage, the widow released absolutely all rights at law. Logically, equity can give her no rights to the equity of redemption. Yet not till recently was this point definitely settled in England. Dawson v. Whitehaven Bank, 6 Ch. Div. 218. See 2 Sch. & Lef. 387, accord.-, 2 Eq. Cas. Ab. 387, pi. 11 ; Amb. 687 ; i Bligh, 104, at 123, contra. By statute (3 & 4 Will. IV. c. 105) to-day dower in equities of redemption is allowed. In this country, a mortgage has long been treated, both at law and equity, as a pledge ; for many, if not all, purposes the mortgagor's interest is a legal estate. Dower attaches to this as to other legal estates. As against the mortgagee, the right is lost ; but if the debt be paid off, it revives in the whole land, i Scribner on Dower (2d ed.), p. 486. It remains to work out the rights of contribution between the widow and the representatives of the husband. In the following cases the widow is considered as a surety for the husband's debt, and is allowed indemnity from the personal estate. 10 Rich. Eq. 285; i Md. Ch. Dec. 202; 3 Met. (Ky.) 578; 12 Serg. & R. 18; 8 R. I. 160; 69 N. C. 67; and in two cases she was allowed to throw the debt upon the heirs. Kling v. Ballyntiney 40 Ohio St. 391 ; 92 Ind. 180. In New York, it is held that an inchoate right of dower is not such an estate as can be pledged; that the widow is not a surety, but has absolutely extinguished her right to the extent of one-third of the mortgage debt. She is not entitled to exoneration from the heir — Hawley v. Bradford, 9 Paige, 200; see 5 John Ch. 452; 13 Mass. 162; I Stock. Ch. 361, — nor {semble) from the personal estate, i Scribner on Dower, 511. Though there are statements in the same jurisdictions to the con- trary. 18 Atl. Rep. at 380; 3 Pick, at 481 ; 3 Paige, 363. Evidence — Res Gesta. — In an action to recover damages for the death of the plaintiff's son, it appeared that the defendant's track was spread at the place where the injury occurred. Held^ that it was no error to admit evidence that, about thirty minutes before the accident, the track-walker said to the section- boss, "The track is spread over beyond Rush." Texas Ry. Co. v. Lester, 12 S. W. Rep. 955 (Tex.). In this case the court lays stress upon the fact that the communication was made by an agent of the company in the course of his duty, but it would seem that it would have been equally admissible had it been made by a stranger. The point this evi- dence went to prove was not the actual condition of the road, but the knowledge of the defendant. For this purpose, the communication to the section-boss was the most direct evidence possible, and it was not as an exception to the hearsay rule that it was admissible. 15 Am. L. Rev. 79. Habeas Corpus. — The defendant had, before these proceedings were begun, illegally parted with the custody of the child in question, and did not know his whereabouts. Held, that the writ should issue, — bv Lord Esher, M.R., since the defendant had parted with the custody of the child by an illegal act; by Fry, L. J., because the facts indicated a purpose to evade the process. Reg. v. Barnardo, 24 Q. B. Div. 283. Insurance — Breach of Condition. — The plaintiffs shipped certain goods under a bill of lading which provided that the carrier, in case he should become liable for the loss of the goods, " should have the full benefit of any insurance that may have been effected upon or on account of said goods." The goods were then insured by the defendants under a policy which provided that in case of loss the assured would "subrogate to the insurers all their claims" against the carriers. The goods were lost by the negligence of the carrier, and the plaintiff brought an action on the policy. Held, the plaintiff cannot recover; for, if the insurance com- pany should pay the loss and bring an action in the name of the shipper, the con- dition in the bill of lading would protect the carrier, and therefore the condition in the policy is nullified. Fayerweather v. Phenix Ins. Co., 23 N. E. Rep. 192 Master AND Servant — Negligence.— Builders contracted with a land-owner
