remainderman? If the condition had not happened until after the end of the particular estate, so that the actual seisin, or possession, had become vested in the feoffor, the common law never did allow it to spring from him. Nor did it originally allow even the inheritance to spring, contingent remainders were not at first valid. This was logical, for contingent remainders are clearly only executory interests,2 and all other common law estates are vested. "A contingent remainder is no estate: it is merely a chance of having one." But later, the inheritance, though never the actual present seisin, was allowed to spring upon the happening of the condition from the feoffor to the limitee, who thereupon became a vested remainderman. Even when the condition did not occur until the moment of the ending of the particular estate, it is submitted that the contingent remainder took effect, not as such, but on the theory that it became, though but momentarily, a vested remainder by the springing of the inheritance from the feoffor to the contingent remainderman.

These conclusions necessarily result from the view that when a vested estate is given, it cannot be subjected to any conditions limiting the right to possession that it involves, unless the termination of the previous estate be, inaccurately, deemed such a condition. This is incontrovertible, otherwise there might be an estate vested in a man, and subject to no other estate, which, however, he might not enjoy, and of which he could not take possession. That is inconceivable. There may, however, be a condition subsequent, the effect of which is, not to prevent the taking of possession under the vested interest, but to divest entirely that interest. Such an estate being possible, it is a question of fact, of construction, whether such an estate be given, or a contingent remainder. If the remainderman is not in esse, there is a contingent remainder. If the remainderman is in esse, it is convenient to divide, for purposes of construction, all remainders into two classes, corresponding to classes (b) and (c) of Professor Kales' classification. In class (c), where the condition may not occur till after the end of the particular estate, it is clear that it would generally be contrary to the intent of the testator to allow the estate to be immediately vested, since that might result in giving the remainderman at common law the fee, or at least, under the Statutes of Wills and Uses, possession during a possible interval between the ending of the particular estate and the happening of the condition; whereas it is almost universally the intent of the feoffor to make possession, at any rate, depend upon the prior happening of the condition. Therefore in such cases all conditions are construed as conditions precedent to vesting, and not as divesting clauses, even if subsequent in form. But in cases arising under class (b) of Professor Kales' division where the condition must occur if at all before the ending of the particular estate, the above presumption in favor of a contingent estate has no place, and the remainder is construed either as vested and subject to a condition divesting it, or as contingent, according as the condition is in form subsequent or precedent.*

It is submitted that the above result, drawing between vested and contingent remainders the same line that exists between vested estates and any other kind of executory estates, the result attained by Professor Gray's definition 5 which Professor Kales criticises, is more logical than the suggested classification, and more in accord with authority."

FEDERAL JURISDICTION IN SUITS BY INDIVIDUALS AGAINST STATES. Suits by individuals apparently against states, which afford increasingly fre

1 Williams, Real Property, 20 ed., 346.

2 2 Washburn, Real Property, 6 ed., 526.

3 Williams, Real Property, 20 ed., 359. See also ibid., 348, 353, 361, 366; Leake, Land Law, 337.

4 Gray, Rule Perp., 2 ed., §§ 104, 105, 108.

5 Gray, Rule Perp., 2 ed., § 101.

6 Cf. Archer's Case, 1 Co. 66 b; Thomas, note to same case, vol. i, p. 165. See Fearne, C. R., passim.

quent questions for review by the federal courts, are the occasion for an interesting article in The Forum. Suits against States by Individuals in Federal Courts, by William Trickett, 11 The Forum 25 (November, 1906). An early decision of the Supreme Court allowed assumpsit against a state; but the Eleventh Amendment, which quickly followed, denied jurisdiction to federal courts in suits by citizens of one state against another state, and was judicially extended to prevent suits by a citizen against his own state. Many attempts have been made to avoid the Amendment by suits against state officers, and the principal question now is, when, though it be not named, is the suit really against the state? To this question the writer has chiefly addressed himself, with the general result of pointing out the more or less serious inconsistencies in the decided cases and the inadequacies of various proposed criteria, rather than of suggesting any sound tests by which the question may be answered.

To coerce an officer may well amount to coercing a state. But it is obvious that the mere plea by an officer when sued in tort for damages, that he acted by order of the state and that it is the real defendant, does not divest the court of jurisdiction, for he is justified only if he had valid legal authority. Moreover, an unconstitutional statute is no authority at all. Consequently, the officer may well be liable in his private capacity and the suit not be one against the state. If the officer is sued for the breach of a contract between the state and the plaintiff, it is clearly a suit within the Eleventh Amendment, since only in his official capacity is he a party to the contract. In a suit against state officers to recover property, either real or personal, which they claim to hold for the state, they must show valid authority if the plaintiff is entitled to possession against them as individuals. A bill against officers to compel specific performance of a contract between the state and the complainant is without the jurisdiction of the court for the same reason that a suit for its breach is bad." The jurisdiction of the court has most often been questioned in replying to petitions for injunctions to forbid unlawful acts, and especially to prevent the enforcement of an unconstitutional statute. Assuming that it is a proper case for interference if the suit were against an individual, it does not seem beyond the court's jurisdiction because it is against an officer, and injunctions have frequently been granted. The state is not the real party defendant, for it cannot have authorized the threatened acts and so cannot be made to shelter the individual who threatens the wrong under color of his office. Similarly equity will enjoin the threatened diversion or waste of a special fund in the treasury, or a trust fund held by the state."

Courts have been slow to compel affirmative performance of a legal duty, though not amounting to specific performance. It seems that a suit or petition for mandamus is hardly within the Eleventh Amendment, for an officer cannot at once both represent the state and be liable for not acting for it in the same matter. But no court can assume to control his discretion and will issue its mandamus only when he refuses to perform an unequivocal official duty involving no exercise of discretion. But extreme care must be exercised in compelling affirmative action, and one or two decisions seem to have gone rather far toward indirectly compelling the state to perform its obligations. It is believed that affirmative relief has not been granted when it would imply a

1 Chisholm v. Georgia, 2 Dall. (U. S.) 419. But see the dissenting opinion of Iredell, J., at 429.

2 Hans v. Louisiana, 134 U. S. 1.

3 Scott v. Donald, 165 U. S. 58.

4 Tindal v. Wesley, 167 U. S. 204 (a suit to recover real property); Poindexter v. Greenhow, 114 U. S. 270 (detinue).

5 Hagood v. Southern, 117 U. S. 52; Parsons v. Slaughter, 63 Fed. Rep. 876.

6 Pennoyer v. McConnaughy, 140 U. S. 1.

I Chaffraix v. Board, 11 Fed. Rep. 638 (a special fund); Preston v. Walsh, 10 Fed. Rep. 315 (a trust fund).

8 Board v. McComb, 92 U. S. 531.

9 Cf. Seibert v. Lewis, 122 U. S. 284.

dealing with the property of the state. Because of its proprietary interest, the state may necessarily be involved. Where the state itself is plaintiff, the court may allow a cross-bill or set-off to be maintained against it.2 This is not a real exception to the rule, for the state has submitted voluntarily to the jurisdiction of the court as an ordinary suitor. But no judgment, even for costs, can be rendered against the state.3

THE LIMITATION OF GROunds for Reversal for Error. A serious fault in the administration of American law is the frequency with which our appellate courts order new trials. To the literature on this topic Judge Charles F. Amidon has recently added an admirable essay. The Quest for Error and the Doing of Justice, 40 Am. L. Rev. 681 (September-October, 1906). Judge Amidon points out that there has been no improvement since 1887, when new trials were granted in forty-six per cent of the cases appealed in the United States, while in England from 1890 to 1900 the percentage was under four. The defect in administration here, it is said, is that where error is found, prejudice is presumed and the judgment reversed, thus requiring of the trial court infallibility rather than justice. Nothing should be presumed, since the court can see the facts by examining the record; but the temporary greater ease and speed offered by this summary method procured its adoption. The effect on the trial judge has been to divert much of his attention from the question at issue to a multitude of small points, and on the lawyer to put him on a constant hunt for error, equally as important as securing the verdict. The remedy offered by the writer is that no new trial should be granted unless the court, after examining the whole record, finds there has been a miscarriage of justice. This plan has been adopted in England. The verdict, which we have made an end, would be restored to its proper function of being a means of doing justice, without infringing the right of having controverted questions of fact passed upon by a jury. And finally, the writer declares, because of our failure to adopt some such remedy, the machinery of our criminal law is breaking down.

But it is not an accurate statement that on appeal infallibility is required on the part of the trial courts. To be sure, when error exists in the record, one line of cases declares that prejudice is to be presumed unless the contrary is proved, but another maintains that it is not to be presumed unless proved. It would be useless as well as impractical to decide which has the greater support in view of the multitude of cases in point. The doctrine is also well established here that there can be no reversal in favor of a party against whom the court would be justified in directing a verdict. In several states statutes forbid reversal for error not affecting the merits of the action. But Judge Amidon goes further in urging reversal only for prejudice amounting to injustice, and in a few cases our courts have gone thus far.

The old common law principle was not to reverse unless the real truths of the case had not been disclosed. The spirit of the present practice is contentious, offering to the litigants a fair fight with the judge as umpire. But this is really discrimination in favor of the richer litigant. Its result has been to increase our courts' burdens. The common law principle was a trial by the court assisted by the jury, while we have now evolved a trial by the jury with the aid of the

272.

1 See Christian v. Atlantic, etc., Ry. Co., 133 U. S. 233.

2 Port Royal Ry. Co. v. South Carolina, 60 Fed. Rep. 552.

See Reeside v. Walker, 11 How. (U. S.) 272; New York v. Dennison, 84 N. Y.

See, e. g., 2 Encyc. of Plead. and Prac. 532; 3 Cyc. 386.

6 See 3 Cyc. 385.

• See Mo. Rev. Stat. 1899, § 865.

7 See New Trials for Erroneous Rulings, by Professor J. H. Wigmore, 3 Colum. L Rev. 433.

court. Our courts are constantly ordering and setting aside verdicts, thus weighing all the evidence and deciding what its effect should be. The principles which permit such procedure would justify the courts in weighing a piece of excluded evidence and determining its effect on reasonable men. In a late series of articles by prominent lawyers in one of the magazines,2 Judge Amidon's statistics have been discussed, and his statement of the inefficiency of our criminal law machinery has in general been approved. On the whole there can be little doubt of the expediency of a change along the line he suggests, so far as our constitutions permit.

ADMISSIBILITY OF DECLARATIONS OF THE INSURED AGAINST THE BENEFICIARY. Albert Martin Kales. Declarations of the insured made after the date of the policy should not be admitted against the beneficiary, though the latter's interest is, by the terms of the policy, revocable. 6 Colum. L. Rev. 509.

AMENABILITY OF MILITARY PERSONS TO THE LAWS OF THE LAND.

Charles E. Smoyer. Concisely summarizing their accountability to the concurrent jurisdictions of federal, state, and military courts. 5 Mich. L. Rev. 12. BASIS OF CASE-LAW. II. A. H. F. Lefroy. Public Policy and other practical considerations as primary sources of case-law. 22 L. Quar. Rev. 416. CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRATION OF Justice, THE. Roscoe Pound. 40 Am. L. Rev. 729; 14 Am. Lawyer 445. CONCERNING THE CONSTITUTIONALITY OF THE LAW REGULATING INTERSTATE RAILWAY RATES. D. Walter Brown. A brief argument in favor of its constitutionality. 6 Colum. L. Rev. 497. See 19 HARV. L. Rev. 487; 20 ibid. 127. CONSENSUS IN DOCTRINE BY THE STATES OPPOSED BY FEDERAL DECISION. Anon. A brief consideration of the question when the federal courts should follow the decisions of the state courts. 3 The Law 134. CONSIDERATION OF THE UNIFORM NEGOTIABLE INSTRUMENTS LAW, A. John D. Milliken. Discussing the origin, history, and criticism of the law. Lawyer 346. CONSTITUTIONAL LIMITATIONS ON THE REGULATION of CorporATIONS. Frederic R. Coudert. Discussing the different application of constitutional provisions to individuals and to corporations. 6 Colum. L. Rev. 485.

14 Am.

DOCTRINE OF HADDOCK V. HADDOCK, THE. Henry Schofield. Supporting the result of the case, and arguing that a state should not be allowed to consider a divorce case at all unless it has personal jurisdiction of the parties. I Ill. L. Rev. 219. See 19 HARV. L. REV. 586.

EQUALITY IN RATES BY PUBLIC SERVICE CORPORATIONS. Anon. Maintaining that the law requiring equal rates from carriers should be extended to all public service corporations. 3 The Law 262.

FUTURE INTERESTS IN LAND. II. Albert Martin Kales. 22 L. Quar. Rev. 383. See supra.

GROWTH, AGGRESSIVENESS, AND PERMANENT CHARACTER OF ANGLO-SAXON LAWS AND INSTITUTIONS, THE. Albert W. Gaines. A historical sketch. 40 Am. L. Rev. 694. HARTER ACT AND BILLS OF LADING LEGISLATION, THE. F. Sieveking. Reviewing European agitation favoring legislation invalidating clauses in bills of lading which relieve ship owners from liability for loss caused by the masters or crew, and opposing such legislation at present. 16 Yale L. J. 25.

HAS THE FEDERAL GOVERNMENT A POLICE POWER? Anon. Contending that it has such power in certain cases, sufficient to justify on constitutional grounds pure food legislation. 32 Nat. Corp. Rep. 849.

HOW FAR WILL THE SUPREME COURT GO IN REVIEWING THE ACTION OF THE INTERSTATE COMMERCE COMMISSION UNDER THE NEW RATE LAW? Anon. Submitting that the courts will investigate questions of fact only to determine whether the rate fixed is confiscatory. 32 Nat. Corp. Rep. 877.

1 See The Administration of the Jury System, by Judge H. B. Brown, 17 Green Bag 623, 624.

2 See The Outlook for Sept. 8, 1906, et seq.

IS THE ACT OF Congress of JUNE 11, 1906, Known as the " EMPLOYER'S LIABILITY ACT," UNCONSTITUTIONAL? J. J. McSwain. Contending that the Act is not unconstitutional in toto because the language is so broad as to include a class of cases over which Congress has no power to legislate. 63 Cent. L. J. 356. LARCENY FOR DIRECTORS TO CONTRIBUTE TO A POLITICAL CAMPAIGN FUND. Anon. Briefly commenting on and agreeing with a recently reversed New York decision which held such action to be larceny. 3 The Law 133. See 19 Harv. L. REV. 611.

LAWYERS AND Corporate CAPITALIZATION. Edward M. Shepard. Advocating the repeal of statutes which require corporations to file their specific capitalization and par value of stock at the time of incorporation, as a relief to the evils of fictitious values and consequent loss of public confidence. 18 Green Bag 601. LEGAL ASPECTS OF OUR INTERVENTION IN CUBA. Edwin Maxey.

Suggesting

solutions to several novel questions which may arise under the provisional government of the United States in Cuba. 14 L. Stud. Helper 301. LIABILITY OF SURETY FOR PAYMENT OF RENT. Anon. Supporting Stacey v. Hill, which decided that a surety is not liable on disclaimer by a trustee in bankruptcy of the lessee. 25 L. N. (London) 339. LIBEL BY PRAISE. Anon. A consideration of a recent Louisiana case commonly said to involve this doctrine. 23 Chi. L. J. 231. See 19 HARV. L. REV. 527. PERJURY BY PRISONERS IN THE WITNESS-BOX. Anon. Maintaining that convictions for such false swearing are proper, not being double jeopardy or a retrial of res judicatae. 70 J. P. 469.

QUEST FOR ERROR AND THE DOING OF JUSTICE, THE. Charles F. Amidon. 40 Am. L. Rev. 681. See supra.

SERVICE OF SUMMONS- ELEMENTS OF ACT-DUTY OF PERSON SERVING ON

REFUSAL TO ACCEPT PROCESS. Anon. A statement of the New York rules of procedure not found in the civil code. 7 Bench and Bar 25.

SPLITTING UP CAUSES OF ACTION ON CONTRACT. Raymond D. Thurber. Covering the New York law on the subject, and reconciling so far as possible the decisions in various classes of cases. 7 Bench and Bar 13.

SUITS AGAINST STATES BY INDIVIDUALS IN FEDERAL COURTS.

II The Forum 25. See supra.

TORRENS SYSTEM, THE. Howell Griswold, Fr.

William Trickett.

Advocating a system for recording titles by which the investigation would be done by court officers and the title guaranteed by the state. 13 The Bar 16. UNCONTRADICTED TESTIMONY OF INTERESTED WITNESSES. C. C. M. Showing the bearing of the New York cases upon the question, and protesting against the separate classification of interested witnesses as to credibility. Io L. N. (Northport) 147.

VICE-PRINCIPAL DOCTRINE IN ILLINOIS, THE. George Haven Miller. With exhaustive Illinois citations. 1 Ill. L. Rev. 242.

WHAT IS EQUAL PROTECTION OF LAWS AS APPLIED TO TAX LAWS? C. R. Skinker. Arguing that it is not necessary that law should apply to all property in all parts of a political subdivision. 63 Čent. L. J. 318.

YEAR BOOKS, THE. II. W. S. Holdsworth. Their emphasis of the law of real property and pleading. 22 L. Quar. Rev. 360.

II. BOOK REVIEWS.

THE VICTORIAN CHANCELlors.

By J. B. Atlay. In two volumes, with portraits. Volume I. Boston: Little, Brown & Company. 1906. pp. xi, 466. 8vo.

Mr. Atlay's book will appeal to many readers. It will appeal to the student of history and political science, for those who have sat upon the Woolsack have left their impress on legislation and upon the development of constitutional government in England; it will appeal to the lover of biography, because it is an excellent example of that branch of literature, and deals with the careers of interesting and noted men; and it will appeal to lawyers, American as well as English, for they will be glad to read the lives of the men whose labors and decisions have done much to mold the development of equity.

It is difficult, if not impossible, to point out in any other country an office whose holder exercises so many separate functions as does the Lord Chancellor