And since C. only agreed to enter into a joint obligation, he is discharged also. Ellismere Brewery Co. v. Cooper et al., [1896] 1 Q. B. 75. The case is clearly right, but is interesting as an unusual application of the well settled rule indicated in the opinion, that an obligee cannot hold sureties when the execution is manifestly not in conformity with the conditions specified in the body of the instrument. See Brandt on Suretyship, § 411, for a collection of the authorities. TORTS - CONTRIBUTORY Negligence. - DUTY OF PERSON CROSSING ELECTRIC STREET CAR LINES. - Plaintiff's intestate alighted from defendant's street car, and attempted to cross the other track behind the car, without looking for cars on this track. He was struck by a passing car and killed. The lower court charged the jury that the rule in regard to street railways was the same as that applied to steam railways; if the deceased by looking could have seen the approaching car, his omission to look was, as a matter of law, contributory negligence. Held, error. Inasmuch as electric street cars run with less noise than steam cars, are within better control of those running them, and their approach is less apt to attract attention, it is a question for the jury whether an omission to look and listen before crossing the track is negligence or not. Dobert v. Troy City Ry. Co., 36 N. Y. Supp. 105. The New York Supreme Court does not seem inclined to extend the application of its peculiar doctrine of “negligence as a matter of law" from failure to look and listen at a railway crossing. The inference of negligence as a fact from such conduct is doubtless less strong in the case of street railways than of steam railways, and probably if the case is carried up the Court of Appeals will take the same view of it. TRUSTS BREACH LIABILITY OF TRUSTEE. — A trustee received a bribe of £300 for investing £3,000 of trust funds in certain securities. Held, (1) the trustee must account to the cestui for the bribe, and (2) must make good any depreciation in the value of the securities below £3,000, the purchase price. In re Smith, [1896] 1 Ch. 71. It is well settled that a trustee will not be allowed to make use of his position as trustee as a source of profit for himself. Where a trustee received a bribe to resign his position and to recommend another as his successor, the trustee was held accountable to the cestui for the bribe received. Sugden v. Crosland, 3 Sm. & Gif. 192. On the second point decided in the principal case there seems to be no direct authority. If a trustee wrongfully invests part of the trust fund in a stock which appreciates and part in a stock which depreciates, in an action against him for breach of the trust, he cannot offset the gain to one fund against the loss to the other, but will be charged with the loss on the one fund undiminished by the gain on the other. Wiles v. Gresham, 2 Drew, 258. The principal case goes but a step beyond this. The trustee's liability in case there is a depreciation in the value of the trust securities below the purchase price, will not be diminished by the £300 bribe which he has been compelled to pay over into the trust fund. WILLS-EFFECT OF LEGATEE CAUSING DEATH OF TESTATOR — PROCEDURE. – Plaintiff, claiming land as one of testator's heirs at law, brought an action for partition against the defendant, the devisee under testator's will, alleging will to be void because defendant poisoned testator to realize the benefits of the will. Held, the killing of a testator by a devisee for the purpose of realizing under a will does not render the devise void, but merely authorizes equity to deprive the devisee of the property devised. Ellerson v. Westcott, 42 N. E. Rep. 540 (N. Y.). See NOTES. REVIEWS. MERWIN ON EQUITY. It is a matter of regret that it could possibly be inferred from the review of this book published last month that Mr. Merwin's editors had not given credit to the sources used in the preparation of their note on Privacy. As a matter of fact credit was given, and it was far from the intention of the reviewer to imply the contrary. COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, HISTORICAL AND JURIDICAL. By Roger Foster. Vol. I. Boston: The Boston Book Company. 1895. pp. viii, 713. Mr. Foster has undertaken a great work, great both in size and in importance. One volume has already appeared, and although this is a book of some 700 pages, yet such is the fulness with which the author has treated the Constitution, that the volume is confined to a discussion of merely the preamble and the first three sections. Notes and appendices, throwing side lights and bringing out historical settings, have added to the mass of materials which go to make this work a searching commentary. In order to arrange all this matter in a workable system the author has, after a considerable Introduction, taken up the clauses of the Constitution in their order, and grouped his observations about these texts. Sometimes, as in the question of impeachment, clauses scattered through the instrument, but bearing on the topic in hand, are collected and treated under one heading. Even with this systematic arrangement the work will need a careful index. It is difficult to say how valuable this will be as a law book. It may be that the lawyer is not expected to rely on " commentaries historical and juridical," and indeed, so far as can be gathered from this first volume, the work is more for the student of political organizations and constitutional history than for the constitutional lawyer. To be sure, this volume hardly offers a fair test, as the first sections of the Constitution deal with political rather than with legal questions; yet when under the second section the author has an opportunity to deal with the question of direct taxes, he does so in the attitude rather of a historian than of a legal commentator. Moreover, in the introductory chapter, the origin of the power which our courts possess to deal with questions of constitutionality is indicated only by a passing remark here and there, whereas, were this intended to be a law book, it would have given more attention to this subject, which is at the foundation of all such judicial action. Whether future volumes may develop a nore legal character or not, the work nevertheless cannot but be of great advantage to the lawyer in bringing out the historical aspect of the Constitution, for the element of interpretation which enters so largely into questions of constitutional law would often amount to little more than guess-work, were it not for the assistance afforded by history. In spite of its fulness, the book reads easily. The expositions are clear, and the argumentative comments on questions of secession and on the political nature of the Constitution are forcible, and yet tempered by a just regard for all considerations. Not the least valuable part of the book is the interesting and often rare matter found in the notes. H. W. ELEMENTS OF DAMAGES. A Handbook for the Use of Students and Practitioners. By Arthur G. Sedgwick. Boston: Little, Brown, & Co. 1896. (The Students' Series.) pp. xvi, 336. "This book," a companion volume to Beale's Cases on Damages, "is an attempt to review the law of damages, to state its principles so far as possible in the form of rules or propositions of law, such as a court might lay down to a jury, . . . and to illustrate these by the cases from which they have been drawn." The author, however, has not confined himself merely to stating rules and giving illustrations, but, by discussing principles very thoroughly before laying down propositions, has greatly improved on this otherwise Procrustean method. The novel result is a combination of what is best in several systems, of discussions not only smooth and perspicuous, but readable and attractive, and of peculiarly felicitous propositions and terse, pertinent abstracts, the whole treated in a manner agreeable, and with a decided charm of its own. In substance, too, this work, helpful alike to students and practitioner, forms a notable addition to the valuable series of which it is the latest. Mr. Sedgwick's knowledge of his, one might almost say, hereditary subject, is of the widest, and his recognition of the scope of a work of this character is thorough and well sustained. It is in no sense an abridgment of the exhaustive"Sedgwick on Damages," but a treatment based on very different considerations, with other purposes in mind. One is not, perhaps, ready to assent to all that is said; but even where Mr. Sedgwick's views do not convince, they fail, not through his shortcomings, but through their own inherent weakness. The undesirable distinction between recovery of consequences in contract and tort is, it would seem, somewhat overstated, in view of the case of Welch v. Anderson, 61 L. J. (N. S.) Q. B. 167, while the author's adherence to the doctrine of exemplary damages might well be thought unfortunate. The topical arrangement of the work, moreover, is too conservative, rather unscientific, and not particularly happy for the student's purpose; but these possible blemishes should avail little when weighed in the balance with its many positive virtues. D. A. E. THE LAW OF COLLATERAL AND DIRECT INHERITANCE, LEGACY, AND SUCCESSION TAXES. By Benj. F. Dos Passos, late Assistant District Attorney, New York County. Second edition. St. Paul, Minn. : West Publishing Co. 1895. 8vo, pp. xxii, 654. Five years ago the first edition of this work was published, and it speedily became the standard treatise on a subject of constantly growing importance. Inheritance tax laws have since been enacted in seven more States. As a result, there is much new material, all of which is incorporated in the present volume. The appendix contains a valuable col lection of statutes. AMERICAN ELECTRICAL CASES, with Annotations. 8vo, pp. xxvi. 911. 1895. R. G. D. Edited by William W. The work of collecting all the leading American cases which deal with electricity in its practical uses has now been brought nearly up to date. This volume, like its predecessors, is admirably arranged for reference, and with them constitutes an exceedingly valuable series. Nowhere else can one find the law of the telegraph and the street railway so conveniently set forth. R. G. D. THE GREEN BAG. Vol. VII., 1895. Boston: The Boston Book Co. The latest bound volume of this clever law magazine has the same general appearance, both within and without, as had the previous volume. The high tone of its articles is maintained, and its sketches of courts, biographies of jurists, and general legal miscellany make it as interesting and amusing to the profession as ever. H. C. L. HARVARD LAW REVIEW. VOL. IX. MARCH 25, 1896. No. 8. CONFLICTING RIGHTS OF TELEPHONE LINES AND SINGLE TROLLEY ELECTRIC RAILWAYS IN THE THE HIGHWAYS. HE electric lines which are ordinarily found in the highways may be divided into three classes: 1. Wires for the transmission of intelligence by electricity, including telegraphs, telephones, fire alarms, police signals, and a few others of similar use. These wires transmit an electric current of very slight potential, and are wholly harmless. 2. Wires for the transmission of electric power for the operation of electric railways. These wires are the overhead trolley wires, and transmit a current of about 500 volts, and are considered harmless to human beings so far as permanent ill effects from shocks are concerned, except in case of very weak or nervous people. The current is strong enough, however, to give a serious temporary shock to human beings, and is often fatal to horses. 3. Wires for the transmission of electric light, heat, and power for mechanical purposes. These wires transmit currents of very high potential, which in case of the direct electric light current is generally in the neighborhood of 2,500 to 3,000 volts, and in case of alternating currents is of much greater destructive force. The electric light current is fatal to human life if taken in its full strength. There are occasional conflicts between all these various kinds of wires as to the occupation of the highways, for the stronger current of one kind will, under circumstances of proximity, affect the operation of the weaker current, but the chief conflict is that which has arisen between the telephone lines and the single trolley electric railway, and this article will be limited to the investigation of the respective rights of these two classes of lines in the highways. The main features of the construction of telephone lines and electric railway lines are now familiar to every one, but there is one point which may not be wholly understood, and which is important in the following discussion. The telephone line in its original form of construction—and the same form is in use at the present time in many places-does not contain a complete metallic circuit, by which the current can start from the speaking telephone or transmitter, travel to the hearing telephone or receiver, and then return to the speaking telephone, but the wire, after reaching the hearing telephone, is led to some adjacent gas or water pipe in the building, or other convenient conductor, over which the current can pass into the ground. It is evident that this connection with the ground through the gas pipe or other conductor forms an economical mode of construction, but it has an objection, that it furnishes a suitable means for a stronger electric current to travel up the conductor into the hearing telephone, just as it does for the telephone current to travel down the conductor into the earth. Hence comes the difficulty with the electric railways, for the electric railway, built according to the single trolley system, uses in a similar way the ground for the return current; that is, the dynamo at the power station generates the electric current which flows out over the trolley wire, thence into the trolley on the car, and by a wire in the trolley pole down through the controllers into the motor in the car, and thence by the car axle and wheels and rails into the ground. The injury which the electric railway current does to the use of telephones is of two kinds: I Conduction, as it is technically called, or leakage. The comparatively strong current of the trolley car, after escaping into the ground, finds an easy path along the gas or water pipes in the street, and into private premises, until it reaches the point at which the telephone wire is attached, thence up the wire into the telephone and through it, to the central exchange. This passage of the railway current into the telephones produces buzzing and cracking noises in the telephones, confuses the sound of the voices, and renders the conversation unintelligible. It also rings the call bells |