consider him born. Blasson v. Blasson, 2 De G. J. & S. 665. If, in the principal case, the infant be considered not born at the death of the testator, the estates after that of the plaintiff are void for remoteness and the Court of Chancery would construe the will to give the plaintiff an estate tail. Cf. Humberston v. Humberston, 1 P. Wms. 332. This he could convert into an estate in fee by a disentailing assurance. It appears then that it is distinctly to the plaintiff's detriment to hold that he was born at the death of the testator. Though it is generally assumed that within the rule against perpetuities a child en ventre sa mère is always considered born, it has never been expressly held where there was detriment to the infant. This case is therefore noteworthy.

RES JUDICATA-SUIT FOR BREACH OF TRUST - RIGHTS OF CESTUI NOT PARTICIPATING.- The plaintiff, one of several cestuis que trustent, had been joined as co-defendant in a suit brought by another of the cestuis que trustent against the trustees for breach of trust. The plaintiff had not appeared in answer to the summons. Only the rights of those cestuis who appeared had been passed upon, and a decree for an accounting to them had been issued. The plaintiff now brought suit against the executors of the last surviving trustee for the same breach of trust. Held, that he is not barred by the decree in the former suit. Earle v. Earle, 173 N. Y. 480.

It is frequently stated that as between parties and their privies a judgment is conclusive as to every matter which might have been litigated in the action. See Jordan v. Van Epps, 85 N. Y. 436. A more exact statement would seem to be that neither party to an action can decline to meet an issue tendered him by the other and then maintain that it has not become res judicata. See Malloney v. Horan, 49 N. Y. 111; FREEMAN, JUDG. 4th ed. § 249. In the principal case the plaintiff and defendant were in no proper sense adverse parties in the former suit, for no claim of the plaintiff against the defendant was passed on by the court. The rights actually settled in the former suit were those of the cestuis who appeared, and the plaintiff does not now seek to disturb the adjudication of those rights. Accordingly the decision would appear to be sound.

RES JUDICATA-SUIT FOR CUSTODY OF INFANT - PRIOR DETERMINATION NOT ON MERITS. A mother filed a petition against her former husband, alleging generally that he was unfit to control their child, and praying that he might be required to deliver the child to the petitioner. The father pleaded that a former petition of the mother had been dismissed on demurrer. Held, that a demurrer to this plea must be sustained. Pearce v. Pearce, 33 So. Rep. 883 (Ala.).

In the United States it is generally held that a decision adverse to the petitioner in a writ of habeas corpus does not prevent him from bringing a new writ on the same facts. People, ex rel. McIntyre, 67 How. Pr. (N. Y.) 362; contra, In re Hammil, 9 S. Dak. 390. The reason usually given is that an order remanding to custody may not be appealed from, and therefore cannot be considered final. Russell v. Commonwealth, 1 P. & W. (Pa.) 82. But habeas corpus proceedings for the custody of an infant are in effect a suit between the claimants of the infant. On this ground it is generally held that in such a case an order remanding to custody is conclusive concerning the facts on which it is based. Mercein v. People, 25 Wend. (N. Y.) 64. For this reason such an order may be appealed from. See Mc Conologue's Case, 107 Mass. 154, 170. By analogy to similar habeas corpus cases a decree in divorce proceedings awarding the custody of a child to the mother has been held res judicata as to the facts on which it was based. Du Bois v. Johnson, 96 Ind. 6. In these cases, however, the paramount consideration should be the well-being of the infant. See Mercein v. People, supra. Accordingly the principal case may be defended, for the first dismissal was not a decision on the merits. Cf. Verser v. Ford, 37 Ark. 27.

LATENT Defects.

SALES IMPLIED WARRANTY OF MERCHANTABILITY The plaintiff was poisoned by beer which he bought from the defendant, a tavernkeeper, who in turn had bought it from a brewer. The poison which the beer contained, owing to defective brewing, could have been detected only by a skilful chemical test. Held, that under the Sale of Goods Act the defendant is liable on an implied warranty that the beer was fit to drink. Holt v. Wrenn, 19 T. L. R. 292 (Eng., C. A.). See NOTES, p. 590.

SALES-STATUTE OF FRAUDS - TRANSFER OF CHOSE IN ACTION. The plaintiff declared on the breach of an oral contract by which the defendant had agreed to purchase a debt due the plaintiff from a third person. The defendant demurred on the ground that the contract was void as a sale of goods, wares, and merchandise within

the Statute of Frauds. Held, that the demurrer must be sustained. Schoonmaker, 54 Atl. Rep. 225 (N. J., Sup. Ct.).

French v.

In England it is settled that a contract for the sale of a chose in action is not within § 17 of the Statute of Frauds. Humble v. Mitchell, 11 Ad. & E. 205. In this country, however, the statute is generally construed to include all securities which are commonly transferred in a tangible form; for example, bonds and shares of stock. Greenwood v. Law, 55 N. J. Law 168; Tisdale v. Harris, 37 Mass. 9. This view seems within the spirit of the statute, since the transfer of such securities is essentially the same as the transfer of ordinary goods and merchandise. But to ordinary choses in action the courts have generally refused to extend this rule. Somerby v. Buntin, 118 Mass. 279. Only one decision has been found which supports the principal case. Walker v. Supple, 54 Ga. 178; virtually overruled by Rogers v. Burr, 105 Ga. 432. An ordinary chose in action apparently is not within the words of the statute. For this reason several states have specifically included choses in action in their statutes of frauds. See WOOD, STAT. FRAUDS, § 283. In the absence of such express provision it is difficult to support the principal case.

SALES TRANSFER OF TITLE- PRESUMPTION WHEN SOMETHING REMAINS TO BE DONE. — An action was brought for the price of certain wood which was to be measured by the buyer to ascertain the exact price. Held, that title has not passed. Porter v. Bridgers, 43 S. E. Rep. 551 (N. C.). See NOTES, p. 587.

TAXATION-EXEMPTIONS

REVENUE.

PROPERTY OF CHARITABLE INSTITUTION USED FOR A statute provides for the exemption from taxation of “buildings used exclusively for charitable purposes, with the land whereon the same are erected, and which may be necessary for the fair enjoyment thereof." Held, that lands held by a charitable institution as a part of its endowment, and not used directly in the institution's work, are not exempt. Cooper Hospital v. City of Camden, 54 Atl. 419 (N. J., C. A.), overruling Cooper Hospital v. Burdsall, 63 N. J. Law 85.

For a discussion of the principles involved, see 16 HARV. L. REV. 70.

TORTS

ABATEMENT-NEGLIGENCE OF SOLICITOR. - An action was brought by a former client against a solicitor for damage caused by the latter's negligence. The defendant died before trial. Held, that the cause of action survived. Davies v. Hood, II4 L. T. 313 (Eng., K. B.).

By the old common law, while contract actions survived if primarily concerning property, tort actions, including assumpsit, did not. See I SAUND. 216, note. But the tendency has constantly been to allow more actions to survive, through assumpsit becoming a contract_action and through the extension of the scope of contracts implied in fact. See Stimpson v. Sprague, 6 Me. 470. Now the form of action is not generally considered as material; and hence if the action, though brought in tort, is one where there was also contractual liability, it will in general survive. Lee's Admr. v. Hill, 87 Va. 497. Modern statutes provide that tort actions for injuries to property shall survive either the defendant's or plaintiff's death. See Miller v. Young, 90 Hun (N. Y.) 132; Cotter v. Plumer, 72 Wis. 476. The principal case therefore accords with the modern cases decided under statute. Tichenor v. Hayes, 41 N. J. Law, 193. It would seem, however, that the result ought to be the same independently of statute, since assumpsit would lie here on an implied promise. Varnum v. Martin, 32 Mass. 440. There are, however, dicta to the contrary. See Elder v. Bogardus, Hill & Den. Supp. (N. Y.), 116, 119.

TORTS LIBEL-PLEADINGS ABSOLUTELY PRIVILEGED. The plaintiff's declaration stated that the defendant had in his pleadings in a previous action alleged falsely and with actual malice that the plaintiff, a stranger to the action, had voted illegally. The allegation was pertinent to the issue in that case. Held, that the allegation is absolutely privileged. Wilkes, J., dissented. Crockett v. McLanahan, 72 S. W. Rep. 950 (Tenn.).

The general rule is that statements in pleadings are absolutely privileged when pertinent to the issues. Runge v. Franklin, 72 Tex. 585; Link v. Moore, 84 Hun (N.Y.) 118. An exception to this rule has heretofore been recognized as existing in Tennessee, where it has been held that allegations with reference to one not a party to the action are only conditionally privileged. Ruohs v. Backer, 6 Heisk. (Tenn.) 395. No other jurisdiction appears to have adopted the distinction. See Jones v. Brownlee, 161 Mo. 258. Wilkes, J., dissenting, supports the former Tennessee rule on the theory that, since the parties control the framing of the issues, they can so shape the case as to libel anybody with impunity if there is no exception in favor of third parties. Judges

generally, however, have considered that, even though the privilege may at times be abused, yet public policy requires that judicial investigations should not be hampered by fears of groundless libel suits against those involved in the proceedings. On the whole the latter view seems preferable. Accordingly the principal case appears sound in bringing Tennessee into line with other jurisdictions.

TRUSTS DISTINCTION BETWEEN PERSONAL and RepresentATIVE CAPACITY OF TRUSTEE. Held, that a judgment in a foreclosure suit against a party not described as a trustee does not prevent him from setting up in a subsequent action a claim as trustee to the property in question. Farmers' Loan and Trust Co. v. Essex, 71 Pac. Rep. 268 (Kan.).

In an action brought for the assessment of taxes upon lands owned by the defendant, she was described as "trustee of A. H." The land was in fact owned by the defendant in her own right. Held, that taxes may be assessed against the land in the present action, for the reason that the words "trustee of A. H." are merely descriptive, and consequently the defendant is present in her individual capacity. Commonwealth v. Hamilton, 72 S. W. Rep. 744 (Ky.). See NOTES, p. 588.

BOOKS AND PERIODICALS.

DISEASE OF DEFENDANT AS DEFENSE TO ACTION ON CONTRACT TO MARRY. In a recent article some space is given to a discussion of venereal disease in defendant as a defense to an action for breach of promise to marry. Venereal Disease in the Law of Marriage and Divorce, by Charles Henry Huberich, 37 Am. L. Rev. 226 (March-April, 1903). The difficulties of the question are in part suggested, but no explanation is attempted. The writer does little more than cite extracts from one English and two American cases, which he seems to consider the entire law on the subject.

The author's discussion is involved in the broader question as to how far disease in general in a party to a contract of marriage will justify his refusal to perform. The possible cases would seem to fall into two general classes. In. the first would come cases where the disease materially affects the health of defendant, the party refusing to perform, without making sexual intercourse dangerous to either party or impossible. In these cases there would seem to be no defense. Such a change in defendant's health may be imagined as would excuse plaintiff from performing, but, if the latter is willing, the defendant, it would seem, must perform or pay damages. In the second class would fall cases in which the disease would render intercourse dangerous to one party or impossible. In this class it will be convenient to make four subdivisions.

(a) The existence of such disease may be known to defendant at the time of contract, but he may have had reasonable ground to believe that it could easily be cured. In this case there would seem to be a valid defense provided the court would protect him were the disease unknown, as in subdivision (d). See Allen v. Baker, 86 N. C. 91.

(b) But there may be no reasonable ground for believing that the disease is temporary in its nature, and in this case, on the analogy of the cases in which a married man is held liable when he contracts to marry a single woman, there would seem to be no defense. Cf. Kelley v. Riley, 106 Mass. 339.

(c) Where such disease does not exist at the time of contract but its subsequent appearance is due to defendant's fault, there would seem to be no ground for a defense.

(d) But the disease may appear without any fault on defendant's part, and this is the form in which the question has generally been presented to the courts. The earliest case is Hall v. Wright, 1 E. B. & E. 746. There, after the contract, defendant became afflicted with a "bleeding at the lungs❞ making intercourse dangerous to him. It was held to be no defense. The Supreme

Court of Virginia reached a contrary result in Sanders v. Coleman, 97 Va. 690. There are also three American cases allowing the defense, where the disease was venereal. Allen v. Baker, 86 N. C. 91; Shackleford v. Hamilton, 93 Ky. 80; Gardner v. Arnett, 21 Ky. L. Rep. 1. Mr. Huberich seems to think that a distinction might be taken between venereal disease and other diseases, and that the English courts would allow the defense in the former case; but this seems at least doubtful. The decision in Hall v. Wright was based on two grounds: (1) that performance was not rendered impossible, and (2) that, even if it was impossible as to part, defendant could still give plaintiff the benefit of his social position. Both grounds seem equally applicable to venereal diseases. In case of such a disease as in Hall v. Wright, intercourse would be dangerous to defendant's own life, while venereal disease would endanger the life of plaintiff and the health of the offspring. Public policy might be stronger in the latter case, but it would be against the union in both. A recent New Jersey case seems to indicate that such a distinction as the writer suggests would not be taken. The disease was not venereal, but the court in a dictum carry the doctrine of Hall v. Wright to its logical conclusion and repudiate the North Carolina and Kentucky cases. Smith v. Compton, 58 L. R. A. 480.

The real question in all the cases would seem to be as to the true meaning of the contract. In contracts for personal services incapacity either of body or mind is an excuse for not performing. Robinson v. Davison, L. R. 6 Ex. 269. It would seem that the conditions implied in ordinary personal contracts should be extended rather than restricted in a contract so thoroughly personal in its nature as the marriage compact. To every contract of marriage might well be coupled the implied condition that a refusal to perform shall be justifiable if the situation of the parties has so changed, without fault on the part of defendant, that a consummation of the married state would be impossible or would endanger the life of either. This would seem to be the correct doctrine. It is in accord with the intention of the parties and is applicable to diseases of all kinds.

A TREATISE ON THE LAW OF NEGOTIABLE INSTRUMENTS. By John W. Daniel. Fifth Edition. By John W. Daniel and Charles A. Douglass. New York: Baker, Voorheis & Company. 1903. 2 vols. pp. cliv, 933;

X, 1004. 8vo.

To sound a discordant note in a chorus of praise is no pleasant duty. An examination of this work, however, convinces us that as there is a good deal of "law taken for granted," so here is a case of merit too freely conceded. It seems to be the fashion for writers of the perfunctory reviews of new editions of well-known law books to style them "legal classics." If all that is necessary to earn that title is to have a successful sale, to pass through several editions, and to be often cited by courts, then this book may be called a "legal classic." But if sound and scientific discussions of principles, accurate statements of the cases, and correct citations are essential to a "legal classic," then this work does not seem to us to deserve that name. We confess that we had ourselves been rather in the habit of taking the merit of the book for granted, and we have been surprised, as a result of a careful examination for the purpose of this review, to find how greatly we were mistaken.

The author, it is true, is more independent than is usual with the writers of legal text-books in the expression of opinion, whether in approving or in dissenting from the decisions of the courts, and this is a commendable feature of his work. But the value of an author's opinions depends largely on the reasons which he gives for them, and in this respect we do not find Mr. Daniel strong. He presents and defends his theories, not like a judge, but rather as an advocate holding a brief, often citing cases which only by a sort of twist can be made to seem favorable to his theories, and ignoring cases which are adverse to them. It is impossible within reasonable space to give more than a few instances.

In section 1361 Mr. Daniel dissents from the long list of authorities which hold that "the drawee paying a forged draft cannot recover back the amount from the party to whom he paid it, whether such party received it before acceptance or afterward." Mr. Daniel claims that the holder of an unaccepted bill who presents it for acceptance or payment "warrants its genuineness" if he indorses it, and, if he does not indorse it, yet "his very assertion of ownership is a warranty of genuineness in itself." Taking together this section and sections 731 and 732 to which Mr. Daniel refers in support of his last proposition, it seems that he likens the holder to a vendor of the instrument, wholly overlooking the difference between a presentment for acceptance or payment and a sale. The implied warranty of genuineness arises only upon a sale or transfer, and all the cases cited in sections 731 and 732 are such cases. As to the indorsement of the holder, it is an error to say that the writing of his name on the back of the instrument when he presents it for payment is an indorsement so as to subject him to any of the liabilities of an indorser to the drawee. The holder is not in any true sense an indorser. His signature operates only as a voucher or receipt, and this is the meaning given to it by the best considered and latest decisions, none of which are referred to by Mr. Daniel, who cites in support of his view only four cases.

In the first of these cases, National Bank v. Bangs, 106 Mass. 445, the holder who indorsed the instrument (a check) was guilty of negligence in taking it, and his merit was therefore not equal to that of the drawee. Moreover, the holder was the payee, and the court drew a distinction between his case and that of a subsequent holder. The case is also distinguished in the same way in the later case of Dedham Nat. Bank v. Everett Nat. Bank, 177 Mass. 392, 396, a case not cited by Mr. Daniel. See also Minneapolis Nat. Bank v. Holyoke Nat. Bank, 182 Mass. 130, 134.

In the second case cited by Mr. Daniel, Rouvant v. San Antonio Nat. Bank, 63 Tex. 612, the holder was also the payee and was guilty of negligence in taking the instrument.

The third case cited is First Nat. Bank of Crawfordsville v. First Nat. Bank of Lafayette, 4 Ind. App. 355 (erroneously cited as 4 Ind.). The court in this case relied on National Bank v. Bangs, supra, failing to notice the distinction there made between a payee and a subsequent holder. But as the instrument involved was not a bill of exchange, all that was said by the court as to the effect of the holder's indorsement was obiter dictum.

The fourth case, Warren-Scharf Asphalt Paving Co. v. Commercial Nat. Bank, 97 Fed. 181, has no tendency to support Mr. Daniel's proposition. The instrument, a forged check, was not paid by the drawee bank, but was received on deposit by the plaintiff bank, and the amount was drawn out by the agent of the payee, the defendant, who had indorsed the check with the name of the payee. It was a transfer of the instrument to the plaintiff, and the question was simply whether the defendant was bound by the indorsement of its name by its fraudulent agent.

But more strange than this citation of cases which do not support the text is the fact that Mr. Daniel cites none of the cases which contradict his proposition, although one of them, Neal v. Coburn, 92 Me. 139, is cited by him in other places. See sections 533 and 1655. In Neal v. Coburn the drawee bank paid a forged check to the holder. Upon discovery of the forgery and demand by the drawee bank, the holder repaid the money and then sued his indorser, who was the indorsee of the payee. It was held that as the plaintiff was not bound to refund to the drawee bank he could not recover from his indorser. It was claimed that the defendant by indorsing the check guaranteed to every subsequent holder the genuineness of the drawer's signature. But the court said,The bank upon which the check was drawn did not become a holder. It did not purchase the check. The bank paid it, extinguished it. It was no longer a check and could no longer have a holder as such. It had become merely a voucher." It does not seem quite ingenuous to cite this case on other points and to omit it upon the point under discussion in section 1361.

The Supreme Court of Massachusetts has recently spoken in the same way.