passing to the executor as such is a first charge on the specific property. general power of appointment over personal property, exercised it by will. passes to the executor as such, and the duty is payable out of the residue. side's Estate, [1903] 1 Ch. 250.

X, having a
Held, that it
Re Fearn-

Where personal property is appointed by will under a general power and executors are named, the property passes to the executors of the will. Re Philbrick's Settlement, 34 L. J. Ch. 368; Re Hoskin's Trusts, 6 Ch. D. 281. It is an open question, however, in what character the executors take. In three cases it has been held that the execu tors take as trustees for the appointee. In re Treasure, [1900] 2 Ch. 648; In re Maddock, [1901] 2 Ch. 372; In re Power, [1901] 2 Ch. 659. On the other hand, it has been held in two cases that the executors take as such. In re Moore, [1901] 1 Ch. 691; In re Dixon, [1902] 1 Ch. 248. The principal case reaches the same result as the latter cases by reference to other sections of the Finance Act of 1894. It is submitted that the result reached is correct. When the executor has received the property appointed under a general power he must, if necessary, use it as assets for payment of the testator's debts, before turning over the residue, if any, to the appointees. Townshend v. Windham, 2 Ves. Sen. 1; Clapp v. Ingraham, 126 Mass. 200. Since it is only as executor that he is bound to pay testator's debts, the settled rule represented by those cases tends to sustain the principal case.

PROPERTY-CONTINGENT REMAINDERS ATTACHMENT IN EQUITY. - Held, that equity will not order the sale of a debtor's contingent remainder at the suit of a creditor. Howbert v. Cawthorn, 42 S. E. Rep. 683 (Va.).

Contingent remainders were originally inalienable at law, except by estoppel, though assignable in equity. Accordingly, courts of equity, being reluctant to offer the purchaser merely a possible right to specific performance, refused to order the sale of a debtor's contingent remainder. Watson v. Dodd, 68 N. C. 528. This does not seem a necessary conclusion, for a contingent remainder already had been held to pass to an assignee in bankruptcy. Higden v. Williamson, 3 P. Wms. 132. This is the better rule to-day. Whelen v. Phillips, 151 Pa. St. 312; contra, Re Wetmore, 108 Fed. Rep. 520. By statutes almost everywhere in force contingent remainders are now transferable by deed. Therefore equity will compel specific performance of a contract for their sale. Matter of Asch, 75 N. Y. App. Div. 486. It would seem that any property of a debtor, certainly any transferable at law, should be subject to the payment of his debts, and the decision in the principal case seems therefore unfortunate. See Daniels v. Eldredge, 125 Mass. 356; but see contra, 68 Va. L. Reg. 573. There appears to be little authority on the point.

PROPERTY- LANDLORD AND TENANT- IMPLIED COVENANT FOR QUIET ENJOYMENT. The defendant held premises under a lease containing a covenant not to use them for trade purposes. He sublet to the plaintiff, who was unaware of the restrictive covenant in the defendant's lease. The plaintiff proceeded to use the premises for trade purposes, but was enjoined from doing so at the instance of the defendant's lessor. Held, that the defendant's implied covenant for quiet enjoyment has not been broken. Jones v. Lavington, 19 T. L. R. 77 (Eng., C. A.).

It is well settled that a covenant for quiet enjoyment is implied from the ordinary words of leasing. Budd-Scott v. Daniell, [1902] 2 K. B. 351; Dexter v. Manley, 4 Cush. (Mass.) 14. The scope of this covenant, however, has not been clearly defined. No doubt the covenant, whether express or implied, is broken when the enjoyment of the premises is substantially interfered with by the lessor or those claiming under him. See Robinson v. Kilvert, L. R. 41 Ch. D. 88, 96; Sanderson v. Mayor, etc., L. R. 13 Q. B. D. 547. But when the interference is by one having a title paramount to that of the lessor, the tendency of the English courts is to hold that an implied covenant is not broken. Thus there is no breach of such a covenant if, upon the termination of the lessor's estate, the lessee be evicted by the remainderman. Baynes v. Lloyd, [1895] 2 Q. B. 610; see 9 HARV. L. REV. 434. Moreover, even an express covenant is not broken when the lessor's title is encumbered with restrictions upon the user of the premises, and these restrictions are enforced against the lessee. Dennett v. Atherton, L. R. 7 Q. B. 316. The principal case would seem to be a consistent application of the English law as settled by these decisions. On principle, however, this doctrine seems too harsh; and probably the implied covenantee would be more fully protected in America. Cf. Hamilton v. Wright's Admr., 28 Mo. 199; Duncklee v. Webber, 151 Mass. 408; Kane v. Mink, 64 Ia. 84.

PROPERTY RIGHT OF LATERAL SUPPORT NOTICE OF EXCAVATION NEAR BOUNDARY.. An owner excavated near the building of the plaintiff, who knew of the proposed excavation. Held, that the failure of the defendant owner to give notice of

the extent of the excavation renders him liable for damages to the building. Davis v. Summerfield, 42 S. E. Rep. 818 (N. C.).

It is settled law that the owner of a building has no natural right to have it supported by the land of an adjacent owner. Dalton v. Angus, 6 App. Cas. 740. The generally recognized doctrine that an owner is entitled to proper notice of excavations on neighboring land which will endanger his buildings, apparently owes its origin to the disposition of the courts to alleviate some of the hardships incident to this rule. See Shafer v. Wilson, 44 Md. 268; Schultz v. Byers, 53 N. J. Law, 442. No decision has been found which attempts to define proper notice, but the holding of the principal case that it must include information of the extent of the excavation, is inconsistent with the assumption of some courts that if the neighbor has actual knowledge of the intention to excavate, there is no obligation to give him formal notice. See Schultz v. Byers, supra; Uerick v. S. Dak., etc., Co., 2 S. Dak. 285. But the purpose of the rule is to give the neighbor an opportunity to protect his property, and since the question whether or not it is endangered depends upon the character of the excavation, it seems reasonable that he should be entitled to information of the extent as well as of the fact of the proposed change.

PROPERTY WILLS-SURVIVORSHIP. — A will gave property to the only son of the testatrix, but "in the event of my becoming the survivor. . . of my son," then to the appellant. The mother and son perished in a common disaster, and no evidence was produced as to who survived. Held, that the appellant was entitled to the property. The Young Women's Christian Home v. French, 23 Sup. Ct. Rep. 184. See NOTES, p. 368.

STATUTE OF FRAUDS-CONTRACTS NOT TO BE PERFORMED WITHIN ONE YEAR — OPTION TO TERMINATE. It was orally agreed that the plaintiff should work for the defendant for two years, but might terminate the contract in six months. Held, that the contract is void under the Statute of Frauds. Biest v. Ver Steeg Shoe Co., 70 S. W. Rep. 1081 (Mo., Sup. Ct.).

A parol contract of personal service for life is not void, though the parties may in fact contemplate a performance lasting longer than a year. Souch v. Strawbridge, 2 C. B. 808. But a parol contract to serve for a definite period of more than one year is invalid. Freeman v. Foss, 145 Mass. 361. The parties having expressed their intention, the contract may be rendered impossible, but will not be performed by death. The English and some American courts apply this doctrine even where, as in the principal case, the contingent termination of the contract is provided for by its terms. Dobson v. Collis, 1 H. & N. 81; Meyer v. Roberts, 46 Ark. 80. In other jurisdictions the provision for performance during more than a year must be unqualified. Roberts v. Rockbottom Co., 7 Met. (Mass.) 46; Blake v. Voigt, 134 N. Y. 69. It seems that the principal case might better have adopted this latter view. The express terms of the contract would be performed by the exercise of the option equally as well as by service for two years. The parties having expressed an indifferent intention as to time for performance, the contract is on the same footing as one in which they express no intention at all. Such parol agreements are universally held not within the Statute. Peter v. Compton, Skin. 353.

Held, that

TORTS CONTRIBUTORY NEGLIGENCE - LAST CHANCE DOCTRINE. the plaintiff, having the last chance to avoid the accident, cannot recover. Barnhill v. Texas & P. R. R. Co., 33 So. Rep. 63 (La.). See NOTES, p. 365.

TORTS DECEIT - MISREPRESENTATION BROUGHT ABOUT BY DEFENDANT. A commercial agency gave the defendant an erroneous rating based in part on false information given it by the defendant as to his financial condition. Relying on this rating, the plaintiff furnished goods to the defendant on credit. The defendant became bankrupt. Held, that the plaintiff can recover in an action for deceit. Tindle v. Birkett, 171 N. Y. 520, reversing the decision in 57 N. Y. App. Div. 450. For a discussion of the decision in the lower court, see 15 HARV. L. REV. 158.

TORTS-PROXIMATE CAUSE - NERVOUS SHOCK FROM TORT TO THIRD PARTY. — A conductor in the employ of the defendant company committed a tort on a child in the presence of her mother. Held, that as a matter of law, the mother cannot recover for permanent injury to her health resulting from nervous excitement caused by the assault on the child. Sanderson v. Northern Pac. R. R. Co., 92 N. W. Rep. 542 (Minn.).

In Minnesota there may be recovery for physical injuries from nervous shock due to fear on the part of the plaintiff of injury to himself. Purcell v. St. P. City Ry. Co., 48

Minn. 134. It is impossible to distinguish such cases from the present one, otherwise than by a purely arbitrary line. When it is decided that physical impact is unnecessary, the courts should recognize that in this new condition the former limitations of assault are inapplicable. Nervous shock may come from various causes. Certainly in a mother it may come as naturally from fear for her child, as for herself. It is difficult to see why the case should not have gone to the jury to determine, if under the circumstances and according to the general principles of legal cause, the injury to the mother was the probable and proximate result of the assault on the child. This would undoubtedly be à wide extension of tort liability, but unless public policy be invoked, it seems impossible to escape this result. The reasoning of one case would seem to lead to this conclusion. Wilkinson v. Downton, [1897] 2 Q. B. 57. In accord with the principal case, however, see a dictum in Dulieu v. White, [1901] 2 K. B. 669, 675.

TORTS PROXIMATE Cause - OWNER BURNED IN SAVING PROPERTY. The defendant negligently started a fire, and the plaintiff, while endeavoring to save his property was severely burned without negligence on his part. Held, that the plaintiff cannot recover. Logan v. Wabash R. R. Co., 70 S. W. Rep. 734 (Mo., Ct. App.).

The case refuses recovery on the ground that the plaintiff's act in attempting to save the property was an intervening cause. This reason seems hardly sound. Since the plaintiff was only making such reasonable effort to save his property and to avoid damages as the law requires, the causal connection should be held not broken. If liability is to be denied it should be on the ground that injury was not foreseeable, provided the plaintiff used due care. Seale v. Gulf, etc., R. R. Co., 65 Tex. 274. But injuries in fighting fire are certainly not unlikely. The weight of the little authority found is that they are to be deemed foreseeable. Liming v. Ill. Cent. R. R. Co., 81 Ia. 246; Berg v. Great Northern R. R. Co., 70 Minn. 272, semble. When a wrongdoer forces another to a dangerous task, injuries are probable and recovery should be allowed if harm results. Page v. Bucksport, 64 Me. 51.

WILLS MISTAKE - STRIKING OUT ERRONEOUS CLAUSE. As a result of an attorney's error, the testatrix had devised only "an undivided moiety of and in " certain lands, in which she in fact had the entire interest. The draft of the will had been read by her, but it was found that this particular provision had never been noticed and approved. Held, that probate should be granted without the clause quoted above. Briscoe v. Baillie Hamilton, [1902] P. 234.

If a will has not been read to or by the testator, a word inserted by mistake may be struck out although a bequest is thereby increased. Morrell v. Morrell, 7 P. & D. 68. But if the will has been thus read, knowledge of its contents is conclusively presumed. Guardhouse v. Blackburn, L. R. 1 P. & D. 109. The decision in the principal case following a later dictum, refuses probate of a disputed clause unless a jury could infer that the testatrix had confirmed it. See Fulton v. Andrew, L. R. 7 H. L. 448, 464. The decision seems especially unfortunate. The striking out of the clause inserted by mistake, increases the estate of the devisee, who thereby takes an unattested devise, in complete disregard of the express terms of the Wills Act. Moreover the instrument is not probated as formally executed by the testatrix with knowledge of its contents. To avoid any such result, the policy of the law would seem to demand that no interference with the terms of the will should be allowed except in cases of fraud. There are few American decisions on this precise point, but the tendency of the courts is against permitting any change in the instrument executed by the testator. McAlister v. Butterfield, 31 Ind. 25; MERWIN, EQ., § 490; but see contra, SCHOULER, Wills, § 219.

BOOKS AND PERIODICALS.

RESCISSION OF STOCK SUBSCRIPTIONS FRAUDULENTLY PROCURED BY PROMOTER. The courts have been called upon in a number of instances to decide whether a subscriber to stock of a projected corporation can, after the formation of the corporation and the acceptance of his subscription, rescind the subscription on the ground that it was induced by the fraudulent misrepresentation of the promoter. A non-existing corporation cannot have agents; consequently, as it is thus impossible to attribute the fraud of the promoter to the corporation on grounds of agency, rescission has generally been denied. Oldham v. Mt. Sterling, etc., Co., 103 Ky. 529; St. John's Mfg. Co. v. Munger, 106 Mich. 90; contra, McDermott v. Harrison, 9 N. Y. Supp. 184. However, in an elaborate discussion in one of the recent magazines, it is attempted to present a sound basis for allowing rescission. Can a Subscriber to Stock of a Corporation not yet Formed Rescind his Subscription on the Ground of Fraud? By Albert Cabell Ritchie, 36 Am. L. Rev. 855 (Nov.-Dec., 1902).

Judge Ritchie contends that rescission should be allowed on the same grounds as those on which a corporation which, after its formation, knowingly accepts property or services contracted for by a promoter, is required to make payment. As to the basis of this latter liability, there has been a wide diversity of opinion. See 14 HARV. L. REV. 536 and 36 Am. L. Reg. n. s. 609. The author, however, does not examine the true principles which underlie the decisions. He contents himself with the broad assertion that in these cases the corporation cannot separate the burden from the benefit, and argues that similarly a corporation should not be allowed to separate the burden from the benefit, that is, to deny the possibility of rescission, in cases where subscriptions have been procured by a promoter's fraud. But generalities of this nature do not go far in the solution of technical legal difficulties. There can be nothing fundamentally common between the two classes of cases. In one of them a corporation is required to pay for property or services contracted for by a promoter which it accepts with knowledge; in the other it is sought to attribute to the corporation the promoter's fraudulent misrepresentations regardless of the corporation's knowledge.

As to the legal relation between a subscriber to stock in a non-existing corporation and the corporation when formed, it seems generally to be agreed that a subscription is a revocable offer by the subscriber, which becomes a binding contract on acceptance by the corporation, the mere organization of the corporation being sufficient to constitute an acceptance in some jurisdictions, while in others a further and formal act by the company is required. Athol Music Hall Co. v. Carey, 116 Mass. 477; Badger Paper Co. v. Rose, 95 Wis. 145; Miller v. The Wild Cat, etc., Co., 52 Ind. 51. No court has gone so far as to hold that if malicious C by fraudulent misrepresentations induces A to offer his house for sale to B, between whom and C no agency relation exists, and B innocently accepts the offer, A can rescind because of C's fraud. This appears to be exactly the situation in the cases under discussion.

The possibility of an interesting distinction is suggested by the holdings of the English cases, where it appears that rescission is allowed if the corporation at the time of the acceptance of the subscription had knowledge of the fraud, but not otherwise. In Re Metropolitan, etc., Assn., [1892] 3 Ch. 1; In Re Metal Constituents, Ltd., [1902] 1 Ch. 707. On broad principles of contract and equity it seems that one who accepts a fraudulently induced offer with knowledge of the fraud should not be permitted to avail himself of the contract. Law v. Grant, 37 Wis. 548. The distinction can be of little practical importance, however, as in those jurisdictions where mere incorporation constitutes acceptance, it is impossible to attribute knowledge to the corporation; and in those jurisdictions where actual acceptance is required, it is unlikely that the corporation will have knowledge.

ASSENT TO CONTRACT UNDER MISTAKE AS TO OFFEROR'S IDENTITY. — Peculiar situations of fact often present difficult questions as to the existence of the mutual assent necessary to the formation of a contract. Suppose that A in the presence of X represents himself as B, a man of recognized credit, and X, believing that he is negotiating with B, accepts A's offer for a contract. The Massachusetts court has held that, under these circumstances, a contract is formed, though it is voidable as between the parties. Edmunds v. Merchants Despatch, etc.. Co., 135 Mass. 283. Suppose on the other hand that A makes the offer by letter, representing himself as B, and X accepts by mail. On substantially this state of facts the House of Lords has decided that no contract arises. Cundy v. Lindsay, 3 App. Cas. 459. The writer of a recent article agrees with the Massachusetts decision, but regards the English case as inconsistent with it. Mutual Assent in Contracts, by Clarence D. Ashley, 3 Colum. L. Rev. 71 (Feb., 1903). Dean Ashley contends that in both cases X assents to a contract with A. He argues from the initial position that where A is actually in the presence of X, the latter clearly intends to contract with the personality before him, and that accordingly a contract is formed with that personality. He then puts a series of cases, supposing first that a board partition had concealed A from X during their conversation, next that the communication had been by telephone, then by telegraph, and lastly by letter. "In each case," he says, "the intention is to communicate with the personality operating the voice, the telephone, the telegraph instrument or the pen that writes the letter."

In discussing mutual assent it must be recognized at the outset that the expressed and not the secret intent of the parties is to govern. The question of interpretation is thus clearly stated by Mr. Justice Holmes: "We ask, not what this man meant, but what these words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." 12 HARV. L. REV. 417. Applying this test to the facts of the cases under consideration, one notes that X evinces an intention to contract with but one person. To this person he evidently gives two attributes: that of being the person who made the offer, and that of being B, the man of good credit. These attributes, however, do not in fact co-exist in the same person, but each describes a distinct individual. To determine which of these individuals is in reality the one with whom X intends to contract, it is necessary to ascertain which of the attributes would under the circumstances naturally be foremost in his mind, and which subsidiary. Is his attitude "I accept the proposition of B, the man of credit (who has made this offer)," or is it "I accept the proposition of this offeror (who is B, the man of credit)"?

This question must be decided on the facts of each case. The Massachusetts decision seems correct. The individual before X whom he sees and hears, and to whom he talks, clearly must be considered as the personality foremost in his mind. His mistake as to identity does not prevent a contract from arising. The English case at the other extreme also appears well decided, notwithstanding the author's adverse criticism. In that case the personality of the actual offeror, A, whose pen wrote the letter would seem not to present itself to X so forcibly as that of B, the responsible business man whose name is appended to the letter as being ostensibly that of the actual offeror. A contract therefore does not arise because B, the supposed offeror, has in fact made no offer. In regard to the supposititious cases between these extremes, a difference of opinion may well exist. As the personality of the actual offeror becomes less obtrusive, that of the responsible business man, the ostensible offeror, comes into prominence. Probably, however, as long as the communication between A and X is immediate, the personality of the actual offeror should be held to predominate; and hence the line should be drawn between the telegraph operator and the letter writer. A contract would thus arise in every case put by the author except that in which the communication was by mail.

The author's disagreement with the English court would seem to be merely on a question of interpretation and not of law, and on this issue a difference of opinion is not surprising. The view of the English court, however, seems preferable. 14 HARV. L. REV. 60.