injunctions involve recognition of an equitable right to carry on business unhin dered by unfair competition, and seem to be merely an exercise of the broad discretionary power of equity to protect substantial interests from damage caused by sharp practice. Cf. Kempson v. Kempson, 58 N. J. Eq. 94. This doctrine obviously fails to cover the principal case, since there the injunction is not sought to protect any substantial interest of the municipal corporation as such. Nor can the corporation constitute itself guardian of the general business interests of the inhabitants. See Dover v. Portsmouth Bridge, 17 N. H. 200, 215. While, therefore, the result of the principal case may be regretted, it seems impossible to dispute the correctness of the decision. If any remedy exists, it would seem to be mandamus against the railroad company or possibly injunction at the suit of an individual who is sustaining inconvenience.

PERSONS MORTGAGE BY INFANT AVOIDANCE. —The plaintiff, while an infant, obtained advances from a building society, to purchase a piece of land and to erect houses thereon. The land was conveyed to the infant by the vendor and the next day mortgaged to the society to secure the advances. On learning of the plaintiff's infancy the society took possession of the property. When the plaintiff attained her majority, she repudiated the contract and mortgage, and brought action for possession. Held, that the mortgage is void; yet, since but for the advance of the purchase money the vendor would have had a vendor's lien, the society can to the extent of the purchase money stand in the vendor's shoes. Nottingham, etc., Society v. Thurstan, 19 T. L. R. 54 (H. of L., Eng.).

This decision is a direct affirmance of the decision of the Court of Appeal in the same case which had reversed the decision of the Chancery Division. For a discussion of the principles involved in those decisions, see 14 HARV. L. REV. 388; 15 Harv. L. REV. 494. To those discussiors should be added Ready v. Pinkham, 63 N. E. Rep. 887. In that case the Supreme Judicial Court of Massachusetts without reference to the English decisions reached, on similar facts, an opinion in accord with that of the Chancery Division in Thurstan v. Nottingham, etc., Society, [1901] I Ch. 88.

PROPERTY - Contingent oR VESTED REMAINDER. - The testator devises land to A for life, remainder to any child or children surviving him, but if A dies leaving no child surviving him, then to his brothers and sisters. Held, that the brother has a vested remainder subject to be divested by the birth of a child. Boatman v. Boatman, 65 N. E. Rep. 81 (Ill., Sup. Ct.).

A remainder is usually considered vested if it is subject to no condition precedent save the termination of the preceding estate. Vested estates are favored by the law, and conditions are construed as subsequent if possible. This policy seems to have led to the above decision. But in the principal case the contingency must obviously happen, if at all, before the estates in remainder come into possession and therefore is precedent in fact. The law, however, looks less to the operation of the condition than to the language employed in the gift. See GRAY, PERP., § 108. Thus, if after an absolute estate is given, a divesting clause is added, the estate is considered vested. Andrew v. Andrew, 1 Ch. D. 410. But if the condition is incorporated into the description of the estate in remainder, it is regarded as contingent. Price v. Hall, L. R. 5 Eq. 399. The question is largely one of construction, but it would seem that the remainder in the principal case should, under these rules, be regarded as contingent. Doe d. Planner v. Scudamore, 2 B. & P. 289. See GRAY, PERP., §§ 101-108.

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PROPERTY-DEEDS DELIVERY IN ESCROW TO THE GRANTEE. The plaintiff executed a deed of land to her husband and placed it in his possession with the understanding that it was to be recorded only in case he survived her. The husband died in the plaintiff's lifetime, having previously recorded the deed. An action to quiet title was brought. Held, that the deed was never delivered so as to pass title to the husband. Kenney v. Parks, 70 Pac. Rep. (Cal.) 556.

A deed may be delivered in escrow to a third party. Raymond v. Smith, 5 Conn. 555. But if the delivery is to the grantee, it has long been the rule that an escrow cannot be created and that the deed becomes operative at once. SHEPPARD'S TOUCH. 59; Dar. ling v. Butler, 45 Fed. Rep. 332. The origin of this distinction appears to have been the importance attached to sealed instruments, lawfully in the possession of a grantee or obligee. COKE'S LIT., 36 a. Although a seal is no longer so important, the objection remains to controverting the natural inference from the grantee's rightful possession of an instrument of title. The decision, however, is supported by the analogy of the rule permitting conditional delivery to the grantee if not strictly in escrow. Brackett v. Barney, 28 N. Y. 333. Also simple contracts, though not bonds, may be delivered in escrow to the obligee. Pym v. Campbell, 6 E. & B. 370; Moss v. Riddle, 5 Cranch (U. S. Sup.

Ct.) 351. But the prevailing view, by restricting the grantor to equitable relief, protects an innocent third party dealing with the grantee, and hence would seem preferable to the rule of the principal case which extends the dangerous doctrine of escrow, so harsh to third parties. See Smith v. South Royalton Bank, 32 Vt. 341.

PROPERTY -GIFT CAUSA MORTIS-PAROL CHOSE IN ACTION. · A creditor, seriously ill and in expectation of death, orally directed the defendant, his debtor, to pay the plaintiff's deceased the debt, which was not evidenced by note or other writing. The debtor assented, and, shortly after, the original creditor died. Held, that the plaintiff is entitled to recover the amount of the debt. Castle v. Persons, 117 Fed. Rep. 835 (C. C. A., Eighth Circ.).

The court differed here both as to result and reasoning. Of the majority, one judge thought there was a valid gift causa mortis; the other, a good novation. The first ground seems erroneous. Where a chose in action is not in the form of a specialty, a gift of it seems never to have been held to operate as more than a revocable power of attorney. If so, it should be revoked by the death of the donor. Sewell v. Moxy, 2 Sim. N. S. 189; contra, Airey v. Hall, 3 Sm. & G. 315. The decision must be supported, then, if at all, on the second ground. It must appear that the plaintiff sued as sole beneficiary on a new contract between the debtor and original creditor, which would amount to a substitution of creditors, a sort of novation resulting from the sole beneficiary doctrine. Whether these were the facts may well be doubted. Courts have reached a like result on the erroneous reasoning that the debtor became a trustee for the intended beneficiary. McFadden v. Jenkins, 1 Ph. 153; Eaton v. Cook, 25 N. J. Eq. 55.

PROPERTY - LEGACIES

SET-OFF OF DEBT BARRED BY STATUTE OF LIMITATIONS. In a hearing in the Probate Court on the distribution of an estate it appeared that a legatee owed the testator a debt barred by the Statute of Limitations. Held, that the amount of the debt should be deducted from the bequest made to the legatee. Holden v. Spier, 70 Pac. Rep. 348 (Kan.). A contrary decision on similar facts is reported in Wilson v. Smith, 117 Fed. Rep. 707 (Circ. Ct. E. D. Pa.). For a discussion of the principles involved, see 14 HARV. L. REV. 73.

PROPERTY-PERCOLATING WATERS

PRIATE.

The defendant dug artesian wells on his land and piped percolating water off to sell for irrigation purposes, to the damage of adjoining landowners. Held, that a landowner must be limited to the reasonable use of such water in connection with the use of his own land. Katz v. Walkinshaw, 70 Pac. Rep. 663 (Cal.). See NOTES, p. 295.

PROPERTY - PERPETUITIES-RULE AGAINST A POSSIBILITY ON A POSSIBILITY. - By a marriage settlement, and by an appointment under it, a gift of personalty was made to unborn children for life, with limitations over to their unborn children. Suit was brought to determine whether the limitations over were bad for remoteness. Held, that they are valid, since the old rule against a possibility on a possibility has no application to personal estate. In re Bowles, [1902] 2 Ch. 650. See NOTES, p. 294.

PROPERTY-RIGHT OF GENERAL PECUNIARY LEGATEE TO MARSHAL AS AGAINST SPECIFIC DEVISEE. - A testator first directed that all his debts be paid, and then left two pecuniary legacies to A and B, and his farm to X. The general personal estate was insufficient to pay the debts and legacies. Held, that A and B may marshal the assets so as to stand in the place of the creditors against the realty, so far as the debts were paid out of the personalty. In re Roberts, [1902] 2 Ch. 834.

The case is in line with the general trend of English decisions. In re Stokes, 67 L. T. N. S. 223. See contra, In re Bate, L. R. 43 Ch. D. 600. The equitable doctrine of marshaling can be applied in favor of the legatees only on the assumption that the creditors have two funds which they can indifferently subject to their claims. It is true that they have. Quarles v. Capell, 2 Dyer 204 b. But it is equally true that an executor in settling debts must exhaust the personalty before applying the realty charged with their payment. Samwell v. Wake, 1 Bro. C. C. 132. It seems, therefore, at least an anomalous application of the doctrine of marshaling to prefer the general legatee at the expense of the specific devisee, whom it is ordinarily presumed to be the intention of the testator to favor. The decision, then, might better have been put on the ground that the general direction to pay debts is sufficient to express the testator's intention to charge the legacies on the realty. See Aldrich v. Cooper, 8 Ves. 381, 396. This seems to be assumed in England. But in America a much stronger expression of intention is required. See WOERNER, AM. ADM., 2nd ed., * 1095, and cases cited.

SALES-BILLS OF LADING-LIABILITY OF Assignee for Vendor's BREACH OF CONTRACT. The defendant purchased from the vendors of corn a draft drawn on the plaintiff, the vendee. A bill of lading of the corn was attached to the draft. The vendee paid the draft and later sued the defendant for a breach of warranty on the contract of sale. Held, that the defendant is liable. Russel v. Smith Grain Co., 32 So. Rep. 287 (Miss.). See NOTES, p. 292.

TORTS - EXTRA-HAZARDOUS EMPLOYMENT - LIABILITY FOR INJURIES BY CONCUSSION FROM BLASTING IN CITY STREETS. The defendant was a contractor excavating in the streets of the city of Chicago under contract with the city. The plaintiff's building was materially damaged by the concussions from the blasts. Held, that the defendant is liable regardless of negligence. Fitzsimons & Connell Co. v. Braun, 65 N. E. Rep. 249 (Ill., Sup. Ct.).

In certain classes of cases the law imposes liability independent of negligence because of the extra-hazardous nature of the defendant's occupation. Bradford Glycerine Co. v. St. Mary's Woolen Mfg. Co., 60 Ohio, 560. The principal case, however, it is submitted, should not be included within this category. The doctrine of Fletcher v. Rylands does not apply here since the defendant was acting neither solely for his own benefit nor upon his own land. Nor have others been held absolutely liable for the injuries caused by similarly dangerous agencies properly brought into city streets. Strawbridge v. City of Philadelphia, 13 Phila. (Pa.) 173; see Denver Electric Co. v. Simpson, 21 Col. 371, 372. There seems to be no reason on principle or grounds of public policy for making an exception in the case of necessary blasting under these conditions. Moreover in this case there was no technical trespass. Cf. Hay v. Cohoes Co., 2 N. Y. 159; French v. Vix 2 N. Y. Misc. 312; Booth v. Rome, etc., R. R. Co., 140 N. Y. 267. Yet there is authority in accord with the principal case. Colton v. Onderdonk, 69 Cal. 155. The result seems unfortunate, for it tends to impose an absolute liability where at most the injury should be only prima facic evidence of negligence. Ulrich v. McCabe, 1 Hilt. (N. Y.) 251. Of course the degree of care required will be commensurate with the risk involved. See Larson v. Central Ry. Co., 56 Ill. App. 263.

TORTS LIABILITY FOR SPREADING OF FIRE. The defendant set fire to brush in order to clear his land. It spread to land of the plaintiff. Held, that the defendant maintained the fire at his own risk, and, on the principle of Fletcher v. Rylands, is absolutely responsible for damage caused by it. Crewe v. Mottershawe, 38 Can. L. J. 736 (Sup. Ct., British Columbia).

By ancient English law a defendant was liable, irrespective of negligence, for damage done by fire spreading from his property; see ROLLE, ABR. Action sur Case, B. 1; Tubervil v. Stamp, 1 Salk. 13. This was changed by a line of statutes, beginning with 6 Anne, c. 31, and to-day the common law generally allows no recovery unless negligence is shown; Vaughan v. Taff Vale R. R. Co., 5 H. & N. 679; Dean v. McCarty, 2 U. C. Q. B. 448; Stuart v. Hawley, 22 Barb. (N. Y.) 619; contra, Fordyce v. Kearns, 2 R. L. 623 (Quebec). Whenever economic necessity has demanded it, the rule of Fletcher v. Rylands has yielded. Madras, etc., Co. v. Žemindar, etc., L. R. 1 Ind. App. 364. So, too, in the "steam-boiler cases." Marshall v. Welwood, 38 N. J. Law 339. In a new country fire is a natural and often necessary means for clearing land. It may be argued that negligence would be hard to prove and its effects in such cases peculiarly disastrous. This might justify placing the burden of disproving it on the defendant, but not making him absolutely liable. So the decision in the principal case seems unsound on both authority and principle.

TORTS NON-NEGLIGENT MISTAKE AS A DEFENse. - The defendant, a police officer, shot and killed the plaintiff's husband, in the reasonable belief that he had committed a felony, after using all other available means to arrest him. He had in fact committed no felony. Held, that in an action to recover for his death the nonnegligent mistake of the defendant is no defense. Petrie v. Cartwright, 70 S. W. Rep. 297 (Ky.).

This decision raises the large question of recovery against a non-culpable defendant; see 15 HARV. L. REV. 335. Recovery in tort is based generally on culpability, but there is a large class of exceptions, e. g., trespass to land. As regards trespass to the person, the law seems unsettled. Where an officer arrests a person erroneously named in the process, his mistake does not excuse him. Griswold v. Sedgwick, i Wend. (N. Y.) 126. But where he supposes one to be subject to arrest who has a privilege, he is excused. Tarlton v. Fisher, 2 Doug. 671. The cases are difficult to distinguish. The true rule would seem to be one of policy. When the defendant's acts are of a sort not to be encouraged, his mistake should not excuse him. The act in the principal case is of this nature, so that the decision seems sound.

TORTS PROCURING BREACH OF CONTRACT — JUSTIFICATION. A labor union by threatening a strike forced a business firm to break its contract with an apprentice, and when sued by the latter justified its action on the ground of its prior contract with the firm forbidding such employment. Held, that the prior contract does not constitute justification. Read v. Friendly Society, etc., 19 T. L. R. 20 (Eng., C. A.). See NOTES, p. 299.

TORTS SEDUCTION RECOVERY BY MOTHER AFTER DEATH OF FATHER.A daughter was seduced and rendered pregnant during her father's lifetime. The father died two months before her confinement and her mother instituted the action. Held, that the mother may not recover, because the daughter was not her servant at the time of seduction. Hamilton v. Long, 36 Irish L. T. Ř. 189. See NOTES, p. 298.

WILLS - BEQUEST PROCURED BY MISREPRESENTATION OF PERSON other than THE LEGATEE. The testator's son had communicated to his father that he was married to one L. with whom the testator never was acquainted. In fact, L. was the son's mistress. Thereafter the testator bequeathed certain property to his son's wife, L. Held, that the legacy does not fail. Anderson v. Berkley, [1902] 1 Ch. 936.

In accord with previous English authority, the court found that the son's mistress was the person designated by the testator. But on the point that an innocent legatee, personally unknown to the testator, should not be deprived of her bequest because of misrepresentations to the testator by another, this seems to be the first decision. Where the beneficiary was personally known to the testator, the legacy was allowed, on the ground that it may have been given owing partly to personal affection rather than to the misrepresentation. Wilkinson v. Joughin, L. R. 2 Eq. 319. This reason however fails in the principal case. Moreover, a gift inter vivos under these circumstances has been declared voidable. Harris v. Delamar, 3 Ired. Eq. (N. C.) 219. Fraud of the legatee will avoid the bequest. Kennell v. Abbott, 4 Ves. 802. Likewise undue influence by anyone. In re Cahill, 74 Cal 52. These analogous cases leave the decision in the principal case open to question. A reason for the decision is that an innocent legatee is otherwise deprived of the testator's bounty. But the bequest in the principal case may well be considered as the probable and contemplated result of the deception. Cf. Melenish v. Milton, 3 Ch. D. 27, 34-35. Further, although the testator cannot control the alternative distribution of his property, this should have no greater influence than in cases of lapsed and void bequests and legacies.

BOOKS AND PERIODICALS.

The

He

CONSTITUTIONALITY OF SHIP SUBSIDIES AND SUGAR BOUNTIES. power of Congress to grant bounties to ship owners or sugar manufacturers is denied by a recent writer in the Columbia Law Review. Ship Subsidies and Sugar Bounty Statutes: Their Constitutionality, by Herman Foster Robinson, 2 Colum. L. Rev. 525 (Dec., 1902). The author argues that the power to appropriate money raised by taxation is only co-extensive with the power to tax. maintains that Congress can tax only for a public purpose, and that payments for bounties are not for a public purpose. If bounty acts are unconstitutional, he believes that payments made under them could be recovered, and that Congress would have no power to reimburse those who might be damaged by relying upon them.

It is a part of the definition of a tax that it shall be for a public purpose. Accordingly, levies authorized by state legislatures for private purposes have always been held void. Curtis's Admr. v. Whipple, 24 Wis. 350. Further, state acts authorizing public bond issues in aid of private enterprises are held unconstitutional on the ground that the power to contract is limited by the power to tax. Loan Assn. v. Topeka, 20 Wall. (U. S. Sup. Ct.) 655. Appropriation of money in the treasury for private purposes by a state would be equally unconstitutional, since the money has been raised by taxation and must be replaced by the same means. If a state legislature, which has all legislative power not forbidden to it by the state constitution, is thus restricted as to the objects of its appropriations, it follows that Congress, which has only the more

limited powers conferred by the Constitution, cannot, under the general taxing power with which it is intrusted, appropriate money for other than public

purposes.

What is a public purpose is primarily for the legislature to determine, and the courts will not interfere unless the decision of the legislature is wrong beyond a reasonable doubt. Speer v. School Directors, etc., 50 Pa. St. 150. On the other hand, it is clear that the benefit to the public must be direct, not merely incidental. Accordingly, the promotion of manufactures is not a public purpose. Loan Assn. v. Topeka, supra. Tested by this rule, a sugar bounty would not seem to be for a public purpose; and it has been pronounced in a dictum to be unconstitutional on that account. Miles Planting Co. v. Carlisle, 5 App. D. C. 138. In Michigan, a state sugar bounty has been held void. Michigan Sugar Co. v. Auditor-General, 124 Mich. 674.

The validity of a ship subsidy, however, involves different considerations. It is well settled law that taxation for a railroad connecting a community with some other region is for a public purpose, though the road be outside the community to be taxed, and even outside the state. Railroad Co. v. County of Otoe, 16 Wall. (U. S. Sup. Ct.) 667. The analogy between such a railroad and foreign-going shipping seems close, especially in view of the fact that the lines of vessels connecting this country with others are, like railroads, common carriers. Liverpool, etc., Co. v. Phenix Ins. Co., 129 U. S. 397. Furthermore, in time of war a merchant marine is indispensable as an auxiliary to the navy. On the whole, there may well be room for an honest doubt as to whether the building up of a merchant marine is not a public purpose, and such doubt, if it exists, must be resolved in favor of the act of Congress.

If it be granted that appropriations are unconstitutional, the author's conclusion that the United States may recover back any sums paid out under them seems to follow. The government is bound by the acts of its officers only when they are acting within their rightful authority. Consequently it is held that money paid out by them under a misconstruction of law is recoverable. United States v. Saunders, 79 Fed. Rep. 407. See also Wisconsin Central R. R. Co. v. United States, 164 U. S. 190. The same rule should apply to payments made under an unconstitutional law.

The position of the author that Congress cannot reimburse those who may sustain loss by relying on an unconstitutional law is consciously taken in the face of the direct decision of the Supreme Court to the contrary. United States v. Realty Co., 163 U. S. 427. The court there held that irrespective of the constitutionality of the law those who had acted in reliance upon it had such a moral or honorary claim that Congress might lawfully appropriate money for them. The arguments against the view taken by the court were fully presented by counsel, and it seems extremely unlikely that the court will overrule its decision.

DOES AN AGent ImplieDLY WARRANT HIS AUTHORITY? The recent case of Oliver v. The Bank of England, [1902] Ch. 610, has called forth an article in The Law Quarterly Review in which the authority of that case is discussed under the title Some Recent Developments of the Doctrine of Collen v. Wright, by Francis R. Y. Radcliffe, 18 L. Quart. Rev. 364 (Oct., 1902). Collen v. Wright, it will be remembered, is the English case in which it was first authoritatively laid down that an agent innocently acting without authority and inducing the plaintiff to enter into a contract for an existing principal, impliedly warrants his agency. Collen v. Wright, 8 E. & B. 647. Since the court there professed to find consideration for the warranty in the plaintiff's consent to make the contract, the writer in The Law Quarterly Review contends that the doctrine cannot properly be extended to cases in which the professing agent induces an act other than entering into a contract, and that Oliver v. The Bank of England is consequently wrong. In that case a broker, thinking himself an agent under a power of attorney which proved to be a forgery, demanded that the Bank of England allow him to transfer some consols; and this the Bank did,