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addition of the stipulation that the occurrence of what had in fact already occurred be a condition precedent to the limitations. See GRAY, RULE PERP., 2 ed., $ 518; $$ 517-523 f.

SALES CONDITIONAL SALES REMEDIES OF SELLER. — The plaintiff made a conditional sale of goods to a company which subsequently went into the hands of a receiver. The plaintiff thereupon filed a claim of lien upon the goods, which was wholly untenable and was dismissed. The goods were then sold to a purchaser having notice of the plaintiff's rights, and the plaintiff brought replevin. Held, that he may recover. Bierce v. Hutchins, U. S. Sup. Ct., April 8, 1907.

There is some confusion regarding the relations between the various rights of conditional vendors. By the weight of authority, resumption of possession and action for the price are mutually exclusive remedies. Bailey v. Hervey, 135 Mass. 172. But, by the sounder view, a right to possession as security is not inconsistent with a right to enforce payment. Thomason v. Lewis, 103 Ala. 426. And unsuccessful proceedings for the price may leave the vendor rights in the chattels. Campbell Mfg. Co. v. Rockaway Pub. Co., 56 N. J. L. 676. court may conceivably grant both remedies as not inconsistent and still refuse to allow resumption of possession after unequivocal recognition of property in the vendee. Heller v. Elliott, 44 N. J. L. 467; but cf. Child v. Allen, 33 Vt. 476. Such a decision must depend for support on the ground that certain conduct either amounts to an eiection of a remedy, or is a waiver of the condition in the contract of sale. The former doctrine, principally relied on by the defendant in the present case, is inapplicable since the attempted remedy was impracticable. Agar v. Winslow, 123 Cal. 587. The question of waiver, apparently, was not raised by the parties; though, unless a lien suit is distinguishable from an attachment, a waiver might have been found here. See Heller v. Elliott, supra.

TAXATION PARTICULAR FORMS OF TAXATION STATE INHERITANCE TAX ON EXERCISE OF Power OF APPOINTMENT. - In 1844 property was settled on a married woman for life, remainder in fee as she should appoint by testamentary deed or will. At her death in 1902 she exercised her power by a will in the forin of a deed. The appointee was taxed under the amendment to the New York inheritance tax law of 1897. Held, that the tax is constitutional. Chanler v. Kelsey, U. S. Sup. Ct., April 15, 1907.

A state may tax the transmission of property by will or descent, because rights of inheritance exist only by its permission. Magoun v. Illinois, etc., Bank, 170 U. S. 283. The New York statute imposes such a tax.

Matter of Delano, 176 N. Y. 486, 494 ; see also U. S. v. Perkins, 163 U. S. 625. The statute applies to the creation of a power of appointment, if by will; but in the present case the creation of the power antedated the statute and was by deed. The statute should not apply to the exercise of the power, because such exercise is not dependent on enabling statutes of inheritance, since appointees take, not under the power, but under the original instrument creating the power. Duke of Marlborough v. Lord Godolphin, 2 Ves. 61, 77; Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45, 48. It is argued, however, that when the power is exercisable only by the will of the donee, its exercise should be subject to the tax, because its effectiveness depends on a testamentary act. See Orr v. Gilman, 183 U.S. 278. But this seems contrary to the elementary principle that the appointee takes by virtue of the original instrument. Moreover, when the appointment, though in the form of a will, is effective also as a deed, it is not dependent on a testamentary act.

TAXATION PROPERTY SUBJECT TO TAXATION — EASEMENTS. pellant, the owner of land in the town of A, had a water right in the town of B, which he used to operate mills on his premises in the town of A. A tax was levied by the town of B upon such water right. Held, that it is taxable only in the town of A. Matter of Hall, 116 N. Y. App. Div. 729.

It is ordinarily held that an easement, such as the water right in question, is

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not taxable real estate. Boreel v. City of New York, 2 Sandf. (N. Y.) 552; cf. 20 Harv. L. Rev. 581. A distinction should be made, however, between taxing an easement and increasing the tax upon real estate because of an easement appurtenant thereto. It is clear that such an indirect tax on an easement is assessable only where the dominant estate is situated. Boston Co. v. Newton, 39 Mass. 22. Where incorporeal hereditaments are made taxable by statute, however, such tax should be assessed where the hereditament is geographically located. Amoskeag Co. v. Concord, 66 N. H. 562.

TAXATION WHERE PROPERTY MAY BE TAXED — CHOSES IN ACTION Taxed to CREDITOR AT DEBTOR'S DOMICILE. – A New York corporation carried on a money-lending business in Louisiana through an agent. the loans being negotiated by such agent and evidenced by notes of the borrowers which were sent to New York and retained by the company until returned to Louisiana for payment. Interest payments were made to the agent and forwarded to the company. A tax was levied by Louisiana upon these obligations as “credits, money loaned, bills receivable," of the corporation. Held, that such tax is constitutional. Metropolitan Life Insurance Co. v. City of New Orleans, U. S. Sup. Ct., April 8, 1907.

This is a noteworthy decision, in which a tendency evinced by previous cases finds its culmination. As a general rule, ordinary debts have been taxable only at the creditor's domicile. State Tax on Foreign Held Bonds, 15 Wall. (U. S.) 300; Insurance Co. v. Board of Assessors, 44 La. Ann. 760. But credits represented by some tangible document such as a note or bond are taxable where the document is found. New Orleans v. Stempel, 175 U. S. 309. So is an overdraft check employed as evidence of indebtedness. State Board v. Comptoir Nat'l D’Escompte, 191 U. S. 388. Moreover, bank deposits are taxable at the place of deposit, irrespective of the existence there of documents representing the debt. Blackstone v. Miller, 188 U. S. 189. A New York decision has even permitted taxation of open book accounts at the debtor's domicile. People v. Barker, 23 N. Y. App. Div. 524 ; aff. 155 N. Y. 665. The present decision is foreshadowed also in two possibly distinguishable prior cases. Bristol v. Washington Co., 177 U. S. 133; Blackstone v. Miller, supra. The ground of these cases is that a course of dealing establishes a “business situs” for the capital invested, and thus protection is furnished by the debtor's domicile. However, they seem wrong on principle : an intangible right can have no situs ; the capital involved is taxed in the hands of the debtor; and the only value left is the creditor's increased ability to pay, which should be reached at his domicile.

Torts INTERFERENCE WITH BUSINESS — CONTRACT Rights. – The plaintiff supplied phonographic goods to A, who agreed not to sell to dealers on the plaintiff's suspended list. The defendant, who was on the list and knew of the contract, persuaded A to sell to it. The plaintiff sought damages and an injunction to prevent the defendant from procuring any person who had entered into agreements for the sale of the former's goods to break such agreements. Held, that, granting the contract is legal, no action lies for procuring its breach. Nati Phonograph Co. v. Edison-Beli Con. Phonograph Co., 23 T. L. R. 189 (Eng., Ch. D., Dec. 15, 1906).

It is a fundamental principle, though unfortunately not universally recognized by the courts, that any intentional interference with a contract right by a third person, which results in damage, is prima facie actionable Lumley v. Gye, 2 E. & B. 216; South Wales Miners' Federation v. Glamorgan Coal Co., [1905] A. C. 239; see 16 Harv. L. REV. 299. The present case is an attemp! to limit that doctrine to certain classes of contracts. The opinion does not make clear whether the attempted distinction is between contracts for personal service and all others — a distinction taken by some American courts, — or between affirmative and negative contracts. In either case it is without justification, as the essential characteristics of the right infringed are the same. Angle v. Chicago, etc., Ry., 151 U. S. 1; Beekman v. Marsters, 80 N. E. Rep. 817 (Mass.); see 16 Harv. L. Rev. 228. The court was, perhaps,

influenced by the tendency of recent English legislation to limit the liability for interference with contract rights by providing that interference with contracts of employment, if done in furtherance of a trade dispute, shall not be of itself illegal. 6 EDW. 7, c. 47. The doctrine as it now stands in England, weakened by statute and decision, is practically useless. This result is to be deplored, since contract rights should be as zealously guarded by the courts as property rights.

TRUSTS — CREATION AND VALIDITY —NOTICE TO CESTUI QUE TRUST. — G. purchased certain bonds, orally declared that he held them in trust for the plaintiffs, then infants of tender age, and informed the plaintiffs' father of the trust, but gave no notice to the plaintiffs personally. Held, that a valid trust has not been created. Boynton v. Gale, 80 N. E. 448 (Mass.).

As it is impossible, except by sealed instrument, gratuitously to transfer legal title to property which has not left the possession of the owner, similarly it should be impossible to create an equitable interest in such property without consideration. Voluntary declarations of trust, however, at least in the case of personalty, have been treated almost universally as effectual to create valid trusts. Ex parte Pye, 18 Ves. Jr. 140. The Massachusetts court has qualified that doctrine by adding the requirement that notice of the trust be given the beneficiary. Člark v. Clark, 108 Mass. 522. This limitation probably originated in a demand for such notice as evidence of the settlor's intent to create a trust. See Brabook v. Boston Bank, 104 Mass. 228. But the courts have considered the notice necessary as something equivalent to the delivery required to perfect gifts at law. See Bailey v. New Bedford, 192 Mass. 564. If these things were truly equivalent, it would seem that notice to the parent would be as effectual as the delivery of a chattel to a third person for the donee. See Duryea v. Harvey, 183 Mass. 429. The principal case shows a tendency to enforce the requirement of notice very strictly, which results in bringing the law of equitable gifts more nearly into harmony with that applied to legal gifts.

TRUSTS — FOLLOWING TRUST PROPERTY — CESTUI'S RIGHTS TO PROPERTY LOST IN BUCKET SHOP. A trustee lost the trust funds by speculating in a bucket shop, no property being bought or sold. The cestui que trust brought a bill to recover the property from the proprietors of the bucket shop. Held, that the defendants gave no lawful consideration and must return the property to the plaintiff. Joslyn v. Downing, Hopkins & Co., 150 Fed. Rep. 317 (C. C. A., Ninth Circ.).

To speculate on the differences between present and future prices without actually buying any property is a gambling transaction, and it is established in the United States that a contract so to speculate is void as against public policy. Irwin v. Williar, 110 U. S. 499. The courts will not, in the absence of a statute, aid either party. Harper v. Crain, 36 Oh. St. 338; Harvey v. Merrill, 150 Mass. I. But in the case under discussion the plaintiff was cestui que trust and ignorant of the transaction. Since, then, the parties were not in pari delicto, the defendants could only retain the property, if traceable, on the argument that they were bona fide purchasers for value. Whether or not they gave value for the property, they can hardly find refuge in their bona fides, for they obtained the property by a method 'inconsistent with a clean conscience. Although they were ignorant of the existence of the trust, they knew that the transaction was legally invalid. There seems no reason why the doctrine of bona fide purchaser should protect a defendant who acquires the property by unlawful methods, although without knowledge of equities.

WATERS AND WATERCOURSES TIDAL WATERS PURPRESTURE. – A riparian owner built a pier beyond high-water mark without permission from the state. It was admitted that the pier was not a nuisance. Held, that it cannot be removed as a purpresture. Town of Brookhaven v. Smith, 188 N. Y. 74.

By the old law any structure beyond high-water mark was removable as a purpresture, - that is, an invasion of the crown's private property in the bed of a tidal stream. Atty-Gen'l v. Richards, 2 Anstr. 603. This was changed i:

most of the original states, either by statute or by usage, even before the Revolution. See GOULD, WATERS, 3 ed., $$ 169 ff. In other jurisdictions, abandoning the old law, it is said that the state holds the jus privatum in trust for the public, who derive benefit from the erection of wharves. People v. Mould, 37 N. Y. App. Div. 35. Another view is that the littoral owner has an interest in the beach, including the right to wharf out. Tuck v. Olds, 29 Fed. Rep. 738. But this right is always subject to state regulation. Lincoln v. Davis, 53 Mich. 375. The present case seems to state the best reasons for departing from the old rule. * It holds that the right to wharf out is a necessary part of a right of access to navigable water, and that the purpresture doctrine, since it would be a great hindrance.to commerce, is inapplicable to American conditions. The doctrine, however, is still recognized by some courts. Shively v. Bowlby, 152 U. S. 1.



THE FEDERAL POLICE POWER. — In these days of federal activity there are no questions of more vital interest than those relating to the ramifications of the power of Congress to regulate commerce. The constitutional aspects of proposed legislation are considered by Edwin Maxey in a recent article. The Constitutionality of the Beveridge Child Labor Bill, 19 Green Bag 290 (May, 1907). The bill discussed proposes to prohibit carriers of interstate commerce accepting from the operators for transportation the products of any factory or mine in which children under fourteen years of age are employed, and to impose penalties on both carrier and operator for violation of the provisions. The writer contends that as the regulation is directed to operate upon processes of production which are completed before distribution begins, it is not regulation of commerce within the decisions of the Supreme Court, but rather a regulation of manufacture or mining. It is his conclusion that such a measure could only be sustained as an exercise of the police power of the federal government.

The courts of sixty years ago would have been startled at the use of the phrase “police power”'in such a connection. In its origin this term was used to denote the residuum of undefined powers vested in the state governments. In its later use it seems to indicate a class of powers of government directed particularly toward the conservation of the public health, morals and other interests which closely concern the well-being of the state, powers so important that the written constitutions of state and nation are carefully construed to give them the greatest possible latitude. It is on the existence of such powers in the federal government that the writer conceives the constitutionality of this proposed legislation to depend. That the Supreme Court considers that it has some such power is not open to doubt. The strongest utterance on the subject was the Lottery Case, where the court in justifying prohibition of interstate commerce said: “As a state may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the 'wide-spread pestilence of lotteries and to protect the commerce which concerns all the states, may prohibit the carrying of lottery tickets from one state to another." A former decision of the court seems to indicate the source of this power, the concept being, apparently, that a grant of power to the federal government carries with it a right to use that power for the protection of the public in the same manner that the state itself might have used it had the power been retained.8

1 See Police Power of the State, 39 Proc. Am. Phil. Soc. 359; What is the Police Power?, 7 Colum. L. Rev. 322. 2 188 U. S. 321.

8 See In re Rapier, 143 U. S. 110.

If that is the true basis of the doctrine, there seems no limit, aside from express constitutional limitations, to the power of Congress to use the machinery of interstate commerce regulation for the protection of national interests. In view, however, of the strong dissent in the Lottery Case, it may be doubted whether the court would carry the principle to its logical conclusion. Certainly the health of the community is of no less interest to the government than its morals. The broad principle involved, moreover, seems to admit of no division on the ground that the proposed legislation is directed to the protection of those who might deal with the goods before distribution, rather than of those into whose hands they might come through interstate transportation.


Grinnell. Dealing with "closed shop" and "arbitration” agreements. 41 Am.

L. Rev. 197. See 18 Harv. L. Rev. 423, 444. APPELLATE JURISDICTION. Everett P. Wheeler. Its abuse, particularly under narrow

New York rulings. 7. Colum. L. Rev. 248. CHILD EN VENTRE SA MÈRE. Anon. Discussing under what circumstances a child

en ventre sa mère is in law treated as born. si Sol. J. 354. See 20 Harv. L. Rev.


DEALING WITH IT, THE._S. S. Gregory. Discussing the Federal Employers'

Liability Act. 5 Mich. L. Rev. 419. Šee 20 Harv. L. Rev. 381. CONSPIRACY AS A CRIME AND AS A Tort. Francis M. Burdick. 7 Colum. L. Rev.


19 Green Bag 290. See supra. CONTRACTS FOR SALE BY TRUSTEES. Anon. Considering the effect in England of a

defect in the trustee's power to sell, upon a contract to sell land. 50 Sol. J. 302. “CUJUS EST SOLUM EJUS EST USQUE AD CÆLUM.” S. Varadachari: Discussing the

right of the owner of a cornice that projects over another•man's land to the air space occupied by the cornice for the period of the statute of limitations. 17




McGregor. 6 Can. L. Rev. 24, 61, 110. EVOLUTION OF THE LAW OF TRADE UNIONS, THE. John H. Romanes. Executive JUSTICE. Roscoe Pound. Pointing out the modern tendency to allow

greater freedom to summary executive action. $5 Am. L. Reg. 137. EXEMPTION OF PRIVATE PROPERTY AT SEA FROM CAPTURE IN TIME OF WAR, THE.

Sir William R. Kennedy. Advocating an amendment of the Declaration of Paris

in order to bring within the exemption all private property. 16 Yale L. J. 381. IN MEMORIAM: FREDERICK WILLIAM MAITLAND. Ò. W. Holmes, John C. Gray, R.

Saleilles, Paul Meyer, Heinrich Brunner, F. Liebermann, Joseph Redlich, A. Zocca



L. Rev. 326. See 20 Harv. L. Rev. 337. LEGAL STATUS OF THE PANAMA CANAL ZONE, THE. Charles R. Williams. 15 Am.


sideration of the legality of board of trade transactions at common law and under

the Illinois statutes. i Ill. L. Rev. 571. OPTIONS TO PURCHASE THE FEE SIMPLE IN LEASES. Anon. Criticizing two recent

English cases. 51 Sol. J. 319. See 20 Harv. L. Rev. 240. PossessiON AND OWNERSHIP. 1. Albert S. Thayer. Discussing the fundamental

nature of these rights. 23 L. Quar. Rev. 175. See 3 Harv. L. Rev. 23, 313, 337 ;

18 ibid. 196; 20 ibid. 563. POWER OF APPELLATE COURTS to Cut Down EXCESSIVE VERDICTS, THE. Robert

L. McWilliams. 64 Cent. L. J. 267.

23 Scot.

L. Rev. 73

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