341. The present decision makes it clear that no extrinsic circumstance whatever will be sufficient to show that the testator did not intend the legacy to be adeemed. Probably the American courts would not go to this length. In a state which has adopted the above section of the Wills Act, the supposed intention of a testator was held to require the substitution of a money equivalent for certain stock bequeathed. Mahoney v. Holt, 19 R. I. 660.

LIBEL AND SLANDER - ACTS AND WORDS ACTIONABLE

PHOTOGRAPH

OF WRONG PERSON PUBLISHED IN CONNECTION WITH SENSATIONAL ARTICLE. The defendant corporation published an article under the title "Suicide Fiend," relating various attempts to commit suicide. Under the name of the person described appeared a photograph of the plaintiff. Held, that an order overruling the demurrer to the complaint be affirmed. Wandt v. Hearst's Chicago American, 109 N. W. Rep. 70 (Wis.).

For a discussion of the principles involved, see 17 HARV. L. REV. 359.

NEGLIGENCE BURDEN OF PROOF RES IPSA LOQUITUR BETWEEN MASTER AND SERVANT. The plaintiff's intestate, a servant of the defendant, was riding in the elevator in his employer's building where he worked. After the elevator had gone a few feet, the bottom of it was torn out, and the plaintiff fell to the basement and was killed. Held, that the maxim res ipsa loquitur applies. John Samuels, Adm'r v. John McKesson, Jr., 113 N. Y. App. Div. 497. See NOTES, p. 228.

PUBLIC OFFICES COMPENSATION RIGHTS WHERE SALARY HAS BEEN PAID DE FACTO OFFICER. A de jure town marshal instituted quo warranto proceedings against a de facto incumbent and secured an order of ouster, just at the end of the term, and a judgment against the incumbent for the amount of the salary. The judgment proved uncollectible, and action was brought against the town for the salary. Held, that on the grounds of public policy and also of estoppel by election of remedies, there can be no recovery. Samuels v. Town of Harrington, 86 Pac. Rep. 1071 (Wash.).

For a discussion of the liability of a municipal corporation in such cases, see 7 HARV. L. REV. 54; 15 ibid. 675.

RULE AGAINST PERPETUITIES INTERESTS Subject to Rule- OPTION TO PURCHASE FEE. — Land was demised for thirty years by the defendants' testatrix, with an agreement that the lessor, her heirs or assigns, would, at any time within the thirty years, convey the fee to the lessees, their successors or assigns, upon payment of a certain sum. The successor of the original lessees chose to exercise this option, but the devisees of the lessor refused to convey. Held, that a bill for specific performance will not lie, the option being in violation of the rule against perpetuities, but that damages can be recovered for the breach of contract. Worthing Corporation v. Heather, [1906] 2 Ch. 532.

This option was clearly unenforceable in equity. Woodall v. Clifton, [1905] 2 Ch. 257; see GRAY, RULE PERP., 2 ed., § 230 b; 18 HARV. L. REV. 379. The court, however, allowed a recovery in damages on the ground that, as the rule against perpetuities only affects property rights, and since at common law no estate would be created in the land, there was no objection to enforcing a legal remedy. Equity, according to the court, refuses to interfere because doing so would create a property right. In short, the reason why the covenant was held valid at law in this case is because it was invalid in equity. This view is certainly odd. Specific performance should be refused on the broader ground that any contract or covenant, which, if enforced, would create an interest in land in violation of the rule against perpetuities, is absolutely void. See 42 SOL. J. 650. Therefore a recovery in damages should be denied. Opposed to the one dictum cited in the case in support of the opinion are numerous authorities, at least one of which maintains that a contract infringing the rule against perpetuities is entirely analogous to a contract against public morals. Poole's Case, Moore's Rep. 810; Jervis v. Bruton, 2 Vern. 251; see also Egerton v. Carl Brownlow, 4 H. L. Cas. 1, 125; Gray, RestrAINTS ALIEN., § 77.

OF

RULE AGAINST PERPETUITIES UNCERTAINTY POSTPONEMENT FUTURE GIFT "AS LONG AS LEGALLY POSSIBLE." -A testator gave the residue of his estate to a trustee "for as long a period as is legally possible," to make annual payments to forty-two annuitants and (with three exceptions) to their heirs, and at the end of that time to divide the trust fund equally among the persons then entitled to the annuities. Held, that the gift over is valid and vests twenty-one years after the death of the last surviving annuitant. Fitchie v. Brown, Sup. Ct. of Hawaii, November 1, 1906. See NOTES, p. 220.

SALES — Election of Remedies WRONGFUL DELIVERY BY CARRIER.. The plaintiff shipped goods by the defendant carrier with instructions to notify the purchaser and deliver on presentation of the bill of lading. The defendant wrongfully delivered without requiring the bill, and later the plaintiff received from the purchaser part payment in cash and a check for the balance. The check was dishonored and the defendant was sued for the balance of the purchase money. Held, that the plaintiff has waived his right against the defendant by treating directly with the purchaser. Callaway & Truitt v. Southern R. R. Co., 55 S. E. Rep. 22 (Ga.).

It is not disputed that on delivery the defendant became liable for the conversion, and that the plaintiff had then a choice of remedies,

to sue either the

carrier or the purchaser. Furman v. Union Pacific R. R. Co., 106 N. Y. 579. There is considerable difference of opinion as to what act is sufficient to show a conclusive election. It is generally held, and it seems correctly, that an unsatisfied demand on the purchaser for payment is not a bar to a subsequent action ex delicto against the carrier. McSwegan v. Penna. Ry. Co., 7 N. Y. App. Div. 301. On the other hand the weight of authority holds that the institution of legal proceedings against one party is a waiver of all rights against the other arising from the same facts. See Robb v. Vos, 155 U. S. 13, 41. Between these limits the law is unsettled, but the true rule seems to be that, if the plaintiff has done an act which would not be justifiable had he elected to sue the defendant, that act in itself amounts to an election. Scarf v. Jardine, 7 App. Cas. 345. And the acceptance of part payment seems to be an act sufficiently decisive to show an intention to waive.

SALVAGE - SUBJECTS OF SALVAGE-LIABILITY OF UNITED STATES FOR DUTIES SAVED. Goods on which duty had been paid were saved by salvors from loss by fire. The Secretary of the Treasury was authorized to refund the duty paid in case of loss under such circumstances, by U. S. Rev. Stat., $8 2984, 3689. Under an admiralty rule, "in all suits for salvage the suit may in personam against the party at whose request or for whose benefit the salvage service has been performed." Held, that the salvor is entitled to rest his case on the assumption that the Secretary of the Treasury would have refunded the duty in case of loss, and can recover in an action in personam for the saving of the duty to the government.

be

Co., 202 U. S. 184.

claim.

United States v. Cornell Steamboat

Originally only the owners of the property were liable for the salvor's In England such liability has recently been extended to persons interested in the preservation of the property; in one case to a vendor under absolute liability to deliver goods, and in another to charterers responsible for the negligent management of the ship. The Five Steel Barges, 15 P. D. 142; see 15 HARV. L. REV. 232. The present case establishes this extension in the United States. The facts here presented push the doctrine to a considerable length, because of the peculiar nature of the government's interest. the duties were collected, the United States would have been under no liability, which would be drawing the line at the point where the government's interest became direct. The recognized doctrine that salvage is a mixed question of private right and public policy appears fully to justify the decision. See The Alboin, Lush. 282, 284. The English court has been careful not to commit itself as to how far it would be willing to extend the doctrine. See The Cargo

ex Port Victor, [1901] P. D. 243, 257. The question of the liability of insurers, mortgagees, etc., remains still open in both countries.

TELEGRAPH AND TELEPHONE COMPANIES STATUS OF COMPANIES AS ENGAGED IN PUBLIC EMPLOYMENT - OBLIGATION TO SERVE ALL AT REASONABLE PRICES. - The plaintiffs contracted with the defendant telephone company with the condition that they should connect no foreign telephone attachments to the main instrument installed by the defendant. The defendant having demanded an unreasonable price for such attachments, the plaintiffs in violation of the condition in their contract connected their own. The defendant thereupon stopped the plaintiffs' service, and the latter sought an injunction. Held, that providing the plaintiffs disconnect the attachments, the defendant be enjoined from interrupting the service over the main instrument. Beach v. Chicago Telephone Co., 39 Chi. Leg. N. 81 (Ill., Circ. Ct., Cook Co., Oct. 17, 1906).

Though a public service company is bound to serve at reasonable rates all proper applicants, it may like private contractors impose reasonable conditions. Pugh v. City, etc., Telephone Ass'n, 9 Wkly. L. Bul. 104 (Oh., Dist. Ct.). The condition imposed by the defendant in the present case was reasonable, and was therefore originally valid. Gardner v. Providence Telephone Co., 23 R. I. 262; ibid. 312. But the defendant, having made the installation of attachments a part of its service, should stand ready to provide them at a reasonable price. Inasmuch as it here demanded an unreasonable price, it might properly be said to have waived its right to take advantage of the originally valid condition until it should reduce the price. Thus the stopping of the plaintiff's service was unwarranted. The remedy given here by conditional injunction was defective, in that it did not guard against the probable continued unreasonableness of the defendant's charge for extensions. The court's proper course would have been to impose on the plaintiff the condition of disconnecting his attachment only provided the defendant offered to supply attachments at a reasonable rate. A simpler method, however, would have been for the plaintiff, without attempting self-help, to have applied for a writ of mandamus, compelling the defendant to do its common law duty. State v. Nebraska Telephone Co., 17 Neb. 126.

TENANCY IN COMMON EJECTMENT - DISSEISOR SUED BY ONE TENANT IN COMMON ALONE. In an action to recover land, it was objected that the plaintiff should have joined others alleged to be tenants in common with him. Held, that it is not necessary, since, in an action of ejectment, one tenant in common may recover the entire possession from a stranger. Godfrey v. Rowland, [1906] Haw. 577.

The court took the ground that each tenant in common has a right to possession against all but his co-tenants. Robinson v. Johnson, 36 Vt. 69. But this position seems unsound in view of the nature of tenancy in common. Since there is no privity of estate, tenants in common could not join at common law, but had to sue separately for an aliquot part. Co. LIT., §§ 292, 311. This has been universally changed either by statute or by judicial legislation, permitting co-tenants to join. Jackson v. Brandt, 2 Caines (N. Y.) 175. But if they choose to sue separately, there seems to be no good reason for allowing recovery larger than title. Dewey v. Brown, 2 Pick. (Mass.) 387. This results in the better rule that a tenant in common suing alone can recover only his undivided share, and be let into possession in common with the disseisor. Butrick v. Tilton, 141 Mass. 93; Hellyer v. King, L. R. 6 Exch. 791. The present case allows recovery on the weakness of the defendant's right rather than on the strength of the plaintiff's, and relies on the unwarranted presumption that the other co-tenants desire to oust the occupier. It, also, seems to be opposed to the previous tendency in the same jurisdiction. See Un Wong v. Kan Chu, 5 Haw. 225.

TORTS LIABILITY TO STRANGER FOR NON-PERFORMANCE OF CONTRACT FAILURE TO SUPPLY WATER IN CASE OF FIRE. A water company, in consideration of franchises and privileges and of the right to be paid

by the levy of special taxes, contracted with a municipality to furnish water for extinguishing fires. Because of failure to supply the amount contracted for, a citizen's building was destroyed by fire. Held, that the company has assumed a public duty, of which the contract is the measure, and for breach of which the company is answerable to this citizen in tort. Mugge v. Tampa Waterworks Co., 42 So. Rep. 81 (Fla.).

For a discussion of the principles involved, see 13 HARV. L. REV. 226. Cf. also 19 ibid. 467; 15 ibid. 767, 784.

TRADE UNIONS-STRIKES -STRIKE AGAINST ONE MAN TO REACH ANOTHER. Union stone-masons and non-union pointers were competitors for certain work of a special contractor on a building under construction by a general contractor. In order to coerce the former into discharging non-union men, walking delegates, empowered by the rules of their respective unions, caused strikes on other buildings of the general contractor. Held, that this is an unlawful conspiracy to interfere with the trade of another, which equity will enjoin. Picket v. Walsh, 78 N. E. Rep. 753 (Mass.).

It is now almost everywhere law that outsiders cannot be unwillingly dragged into labor disputes. For a discussion of the principles involved, see 17 HARV. L. REV. 558.

BOOKS AND PERIODICALS.

I. LEADING LEGAL ARTICLES.

VESTED AND CONTINGENT REMAINDERS. In a recent article Professor Albert Martin Kales discusses the distinction between vested and contingent remainders, in the light of a new classification of future interests in land which he advances. Future Interests in Land, 22 L. Quar. Rev. 250, 383 (July, October, 1906). The classification suggested is based upon a division of all future interests into three mutually exclusive groups, the division resulting from the fact that a future interest must come into possession either "by way of succession," as when it succeeds immediately the preceding estate; or "by way of interruption," when it cuts short the preceding estate. The three classes are, then: (a) estates which by the words of the limitation can come into effect only by way of interruption; (b) estates which are so limited that by the words of the limitation they can come into effect only by way of succession; and (c) estates which by the words of the limitation might come into effect either by way of succession or by way of interruption.

Ás to class (a), estates which are limited so as to come into possession only by way of interruption, such estates are uniformly held bad under the common law with the sole exception of the right of entry for condition broken, and are valid under the Statutes of Uses and Wills. Ás to class (b), estates intended to take effect only by way of succession, Mr. Kales concludes that all such estates are valid at the common law, even if after terms for years, and even if subject to a condition precedent. All estates in this class are vested remainders, it is said. Lastly, as to class (c), estates limited so that they might conceivably come into possession either by way of succession or by way of interruption, it is argued that such estates are, and alone are, contingent remainders. They are good when they actually can come into effect by way of succession, and fail otherwise. After estates for years they are always invalid at the common law, although probably valid under the Statutes of Uses and Wills.1

This classification, if correct, offers an excellent rule for distinguishing between vested and contingent remainders, though it must not be forgotten that

1 Professor Kales notes Adams v. Savage, 2 Ld. Raym. 854, as an instance of the conscious reluctance of the judges to give the Statute of Uses its full effect.

it leaves all questions of construction to remain a source of doubt and disagreement. But it is submitted that the classification is illogical and inaccurate. As to the first point, consider the validity of estates in class (b) that are subject to a condition precedent (which is sure to be determined before the end of the previous estate) and limited after a term for years. Such an estate is said to be good, but the reasoning to support the acknowledged invalidity of such an estate when the condition may not happen until after the end of the term is equally applicable in this case. The reason given in cases in class (c) is that the seisin of the feoffor would be interrupted by the subsequent estate. There must be a similar interruption in class (b) unless the seisin be from the beginning in the remainderman, but this cannot be, for ex hypothesi he gets no seisin except upon the happening of a condition.

66

But granting the logic of the author in that instance, it is, however, noteworthy that if the theory be accurate, all contingent remainders can be avoided and exactly the same interest be given as a vested remainder by a mere matter of wording, which is really but declaratory of the existing law. Take, for example, an estate to A for life, remainder to such of his children as attain the age of twenty-one. This is admittedly a contingent remainder. Add the magic words, at or before the termination of A's estate," and the children will have a vested estate, though they be unborn, since the condition is so worded that it must occur, if at all, before A's estate ends, and so the children's estate can come into possession only by way of succession. Further, it is submitted that the inaccuracy of the position taken by the learned writer is in one instance at least very clearly demonstrable. Suppose an estate to A for twenty years, remainder if B die before the end of A's term to the children of B. B is at present a bachelor. By the suggested rule the limitation to the children of B is supported as a vested remainder. The children of B, then, must have the seisin, not merely the right in inheritance, but the actual seisin. They are the freeholders. But how could a person not in esse be responsible for the many feudal duties of a freeholder? In no case, whether after freehold or not, can a remainder be vested unless there is some one in whom it can be and is vested, ex vi termini.2

The fact that this theory allows an estate to be "vested" in a person not in esse points to the fundamental error underlying it, — that the author underrates the importance of the idea of seisin, and consequently looks at vesting in possession and at what are conceived to be conditions precedent thereto, rather than at vesting in interest, which alone can be subject to a true condition precedent. Feudal land law, at least so far as it affected the creation of estates, depended entirely upon seisin. Upon a feoffment to one of a freehold with remainders over unconditionally, the remaindermen were conceived of as being owners of shares in the seisin. This share in the seisin, "the inheritance," was an actual present right in the land. The ownership of this interest carried with it inevitably a right to take possession upon the termination of the previous estate. Such an interest as this is, it is believed, the only vested remainder the law knows. For if the future estate were to commence only upon condition, it would be impossible for the limitee thereof to acquire any interest until the condition happened. It cannot be both that he has the interest now and that his reception thereof is subject to a condition. Since, then, the right to the inheritance cannot immediately pass to the limitee, it must revert to the feoffor (if there is no subsequent vested remainderman), for the fee must be somewhere. Now let us suppose that the condition happens before the end of the particular estate. Can the inheritance thereupon leap from the feoffor to the would-be

1 Lit., § 60.

2 Fearne, C. R., 9 ed., 9.

8 Leake, Land Law, 45, 46; Van Rensselaer v. Kearney, 11 How. (U. S.) 297, 319. 4 See Cook v. Hammond, 4 Mason (U. S. C. C.) 467, 488; Van Rensselaer v. Kearney, supra.

5 Williams, Real Property, 20 ed., 335.

• Egerton v. Massey, 3 C. B. (N. s.) 338; Gray, Rule Perp., 2 ed., § 113 a.