596. The infants, if of a responsible age, are themselves liable for their own torts. See Paul v. Hummel, 43 Mo. 119; 14 HARV. L. REV. 71. Irrespective of the parental relationship, of course, the father may be liable on the principles of agency. Teagarden v. McLaughlin, 86 Ind. 476. See 28 HARV. L. REV. 91. Furthermore, if he stands by and does not restrain the child from doing the act, he is deemed to have authorized or consented to it and is liable. Beedy v. Reding, 16 Me. 362; Hoverson v. Noker, 60 Wis. 511. An action also lies if the father's own negligence was a proximate cause of the child's doing the injury, as where he gives the child a gun. Meers v. McDowell, 110 Ky. 926, 62 S. W. 1013; Thibodeau v. Cheff, 24 Ont. L. R. 214; Johnson v. Glidden, II S. D. 237. But even where the child is an imbecile there is no liability in the absence of negligence. Bollinger v. Rader, 153 N. C. 488, 69 S. E. 497. Similarly, mere notice of the vicious disposition of a child will not render the parent liable for its assaults. Paul v. Hummel, supra. See Baker v. Haldeman, 24 Mo. 219. It is submitted, therefore, that the principal case is correct in basing the liability on negligence, and in refuting the contention that by analogy to animals the parent was liable by reason of scienter.

PARTNERSHIP RETIREMENT OF PARTNERS-LIABILITY OF NOMINAL PARTNER FOR INJURY TO INVITED PERSON. A business formerly operated by father and son was continued after the father's retirement, and with his consent, under the old firm name of "E. Dieudonne & Son." The plaintiff, who had been a customer prior to the retirement and knew nothing of it, came to the firm's shop on business and was injured by the negligence of an employee. Held, that the retired partner is liable. Jewison v. Dieudonne, 149 N. W. 20 (Minn.).

A person who holds himself out as a partner may be responsible, under some circumstances, to those dealing with the firm. Stearns v. Haven, 14 Vt. 540. This liability, however, depends on principles of estoppel and not on general grounds of policy. Rogers v. Murray, 110 Ñ. Y. 658, 18 N. E. 261. Cf. Poillon v. Secor, 61 N. Y. 456. Accordingly, if the person dealing with the firm does not know of the holding out or does not rely on it in so dealing, the nominal partner will not be liable. Thompson v. First National Bank of Toledo, 111 U. S. 529; Wood v. Pennell, 51 Me. 52. Contracts made with the ostensible firm frequently involve this reliance on the partnership. Rice v. Barrett, 116 Mass. 312. Tort liability, on the other hand, ordinarily arises without reference to the mental attitude of the injured person, and the basis for recovery against the nominal partner is, therefore, lacking. Smith v. Bailey, [1891] 2 Q. B. 403; Shapard v. Hynes, 104 Fed. 449. But when the tort arises out of a relation undertaken in reliance on the holding out, the necessary elements of estoppel seem to be present. Maxwell v. Gibbs, 32 Ia. 32. It is submitted that this same principle is the real basis of liability in certain cases of so-called "implied invitation." See Holmes v. Drew, 151 Mass. 578. Accordingly, in the principal case, if in fact the plaintiff had relied on the representation that the retired partner was still a member of the firm, in entering upon the relation of invitee, the liability would have been properly imposed. But inasmuch as the facts did not warrant that construction, the dissenting judges rightly refused to be satisfied with anything less than estoppel.

POLICE POWER — INTEREST OF PUBLIC ORDER - VALIDITY OF STATUTE PROHIBITING THE USE OF RED FLAGS IN PARADES. Under a statute providing that "no red or black flag . . . shall be carried in parade within this commonwealth," the defendant was convicted for carrying a red flag in the parade of a Socialist organization. Held, that the statute is constitutional. Commonwealth v. Karvonen, 106 N. E. 556 (Mass.).

Courts cannot protect the people from unwise or oppressive legislation ex

cept when it is inconsistent with some constitutional provision which comes within judicial cognizance. COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., p. 236. An enactment of the legislature, no matter how freakish in nature, cannot be declared void by the courts if it has any reasonable bearing upon the protection of public health, morals, safety, order or welfare. Hammer v. State, 173 Ind. 199, 89 N. E. 850. Moreover, if the statute has a direct relation to the evil sought to be remedied, it is not fatal that it may affect those innocent of the evil at which it is aimed. United States ex rel. Turner v. Williams, 194 U. S. 279, 294. The regulation of street parades is, of course, within the police power of the state, and statutes or ordinances on the subject will be sustained unless unreasonable, or outside the scope of the powers delegated to the municipality. Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224. Cf. Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719. The police power, however, has some limits. Thus legislation making it a crime for a girl under twenty-one to enter a Chinese restaurant, or a statute requiring horseshoers to pass an examination, would be invalid. Opinion of the Justices, 207 Mass. 601, 94 N. E. 558; Bessette v. People, 193 Ill. 334, 62 N. E. 215. But in the principal case it would seem that the carrying of a red flag has enough of a connection with acts of disorder to warrant the enactment of the statute in the interest of public order. Opinions may differ as to its policy, but if there is dissatisfaction, recourse must be had to the legislature and not to the courts.

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POWERS APPOINTMENT TO REMAINDERMAN EFFECT OF PARTIAL APPOINTMENT TO Others on RIGHT TO ELECTION. The testator left property in trust for his daughter for life, then to such persons as she should by will appoint, and in default of such last will to be distributed as if she had died intestate. By will she appointed part of the fund for the payment of debts, and the balance to those who would have taken on default of appointment. These appointees now seek to escape payment of the transfer tax by electing to take under the original will instead of under the power. Held, that they must take under the power. Estate of Josephine Slosson, N. Y. L. J., Nov. 5, 1914 (Surr. Ct., N. Y. County).

Where a power of appointment is completely exercised in favor of the person who would take in default of appointment, the New York courts have held that he can elect to take under the will instead of under the power. Matter of Lansing, 182 N. Y. 238, 74 N. E. 882; Matter of Haggerty, 128 App. Div. 479, 112 N. Y. Supp. 1017. The argument is that, while there has been at least a formal exercise of the power, the remainderman takes nothing different than he would have had under the original will, and should therefore be permitted to elect to disregard the appointment. Somewhat analogous is the case where land is specifically devised to the heir. There the law has been that the worthier title prevails and that the heir takes by descent. Sedgwick v. Minot, 6 Allen (Mass.) 171. But this rule has been changed in England by statute, so that the heir now takes by devise. 3 & 4 Wм. IV, c. 106, § 3. A doctrine of equal rigidity concerning appointments to remaindermen may well be preferable to the rule allowing an election. See 19 HARV. L. REV. 139. But whatever their comparative merits, the principal case seems to set an arbitrary limitation on the New York view. For where the donee of the power has appointed in part to others, and the balance to those who take on default, the appointees who are remaindermen take just what they would have received had the power not been exercised as to the balance, and they should have an equal right to elect to take under the original will.

duress, the declaration alleged that the defendant had installed fixtures in a building of which the plaintiff was general contractor, that the defendant had been paid the full price, but falsely and fraudulently claimed an additional sum for extra work and threatened to bring a replevin suit to remove the fixtures unless the extra sum was paid; and that the plaintiff thereupon paid this demand under compulsion, to prevent irreparable injury. Held, that the declaration does not state facts sufficient to constitute a cause of action. James C. McGuire & Co. v. H. G. Vogel Co., 149 N. Y. Supp. 756 (App. Div.). Money paid under duress is recoverable upon the equitable doctrine of unjust enrichment, so long as there is enough compulsion to negative voluntary payment. Koenig v. People's Gas, etc. Co., 153 Ill. App. 432. But the law will not lightly undo private settlements of disputed claims, made with full knowledge of the facts, even though the claim proves unfounded. Pearl v. Whitehouse, 52 N. H. 254. Ordinarily, therefore, money paid upon a threat of legal proceedings may not be recovered. Weber v. Kirkendall, 44 Neb. 766, 63 N. W. 35. If the threat is honestly made, and presents the alternative of paying the contested claim or awaiting a court adjudication, a party will not be acting under compulsion when he chooses the former. Parker v. Lancaster, 84 Me. 512, 24 Atl. 952. New Orleans & N. E. R. Co. v. Louisiana, etc. Co., 109 La. 13, 33 So. 51. But where the threat is made in bad faith by one having an oppressive advantage of position, so that the alternative of surrender is irreparable injury or immediate hardship, the duress is sufficient to justify a recovery of payments made. Sartwell v. Horton, 28 Vt. 370; Swift & Co. v. United States, III U. S. 22. In the principal case the parties appear to have been on an equal footing, and in spite of the dishonesty of the claim, there seems to have been nothing equivalent to compulsion in the dealings between them.

RESCISSION RESCISSION FOR FRAUD OR MISTAKE- RESTORATION OF CONSIDERATION BY RESCINDING PARTY: WHEN EXCUSED. · A purchased municipal bonds from B under a contract induced by fraud of B. He paid B approximately one quarter of the price in stock and the rest in cash. After litigation, A was able to collect the face value of the bonds from the municipality, but lost the interest. The stock was pledged by B to the plaintiff, who being sued by A and B for the stock and dividends, brings a bill of interpleader. B now being insolvent, A in his answer demands the stock and dividends under a rescission of the contract, without offering to return the value of the bonds. Held, that A may recover. Page Belting Co. v. F. H. Prince & Co., 91 Atl. 961 (N. H.).

For a discussion of the principles involved and of the necessity in general of putting the defendant in statu quo, see this issue of the REVIEW, p. 315.

TORTS UNUSUAL CASES OF TORT LIABILITY - REIMBURSEMENT FOR PAYMENT MADE UNDER WORKMEN'S COMPENSATION ACTS. An employee, whose master had accepted the optional clause of an employers' liability act, was injured in the course of his employment through the negligence of a third person not a fellow-servant. The employer, who was compelled by the act to compensate the workman, now sues the negligent third person to recover the payments made under the act. Held, that he cannot recover. Interstate Telephone and Telegraph Co. v. Public Service Electric Co., 90 Atl. 1062 (N. J.).

For a discussion of this case on principles of tort liability, and in view of the policy of the workmen's compensation acts, see NOTES, p. 307.

TRUSTS Cestui's INTEREST IN THE Res - LIFE TENANT'S RIGHT TO ACTUAL INCOME FROM UNAUTHORIZED INVESTMENTS. The testator left property in trust for conversion with full power of postponement, and directed

the trustees to divide "the trust premises constituting or representing" the residuary estate into certain shares and to pay the income of each share to a tenant for life with remainders over. The estate was composed of both authorized and unauthorized investments. Held, that the life tenants should enjoy the actual income from the unauthorized investments, pending conversion. In re Godfree, [1914] 2 Ch. 110.

When there is a trust for the benefit of life tenants and remaindermen, with an express provision for conversion or a duty to convert because the property is not properly invested, the gross fund is treated as converted from the date of the testator's death, and the life tenant is given the income that would have been earned, had the money then been properly invested. Edwards v. Edwards, 183 Mass. 581, 67 N. E. 658; Brown v. Gellatly, L. R. 2 Ch. App. 751. The courts aim to carry out the will of the testator, however, and the life tenant will take the actual income when such an intention appears. In re Hubbuck, [1896] 1 Ch. 754. Some jurisdictions deduce such an intention from the absence of a direction to convert. Heighe v. Littig, 63 Md. 301. See Patterson v. Vivian, 63 N. Y. Misc. 389, 399, 117 N. Y. Supp. 504, 510. But the better rule presumes from the gift to life tenants and remaindermen that the testator intended each to receive equal benefits, and therefore requires conversion unless some positive indication appears that the property was to be enjoyed in specie. Porter v. Baddeley, 5 Ch. D. 542. See PERRY, TRUSTS, 6 ed., p. 900. The English courts, however, seem to except income-producing land from this rule. In re Oliver, [1908] 2 Ch. 74. They also distinguish cases where there is an express power given to trustees to convert the estate or not at their absolute discretion. Yates v. Yates, 28 Beav. 637; In re Pitcairn, [1896] 2 Ch. 199. The principal case deserves criticism, in that it further impairs the general rule, and finds an intention that the property be enjoyed in specie, by a strained construction of the words "constituting or representing."

TRUSTS CREATION AND VALIDITY - RESERVATION OF POWER TO REVOKE: LIABILITY TO TRANSFER TAX. - A donor executed a deed conveying property to a trustee on certain trusts, reserving an absolute power to amend or revoke the trust. A statute provided that transfers of property "by deed made in contemplation of the death of the grantor or intended to take effect in possession at or after such death" should be subject to a transfer tax. CONSOL. LAWS N. Y., TAX LAW, § 220, subd. 4. Held, that the trust fund is subject to a tax on the death of the donor. In re Hoyt's Estate, 86 N. Y. Misc. 696, 149 N. Y. Supp. 91.

The court imposes the tax on the ground that the transfer was "intended to take effect in possession at or after the donor's death." If this means that no trust was created until that time, the gift would be invalid as a testamentary disposition. McEvoy v. Boston Five Cents Savings Bank, 201 Mass. 50, 87 N. E. 465; Nicklas v. Parker, 71 N. J. Eq. 777, 71 Atl. 1135. That this is a difficulty however which does not appeal very strongly to the New York courts is apparent from their doctrine of "tentative trusts." Matter of Totten, 179

N. Y. 112, 71 N. E. 748. It is clear, moreover, that the mere reservation of a power to revoke did not invalidate the trust under the Statute of Wills. Van Cott v. Prentice, 104 N. Y. 45, 10 N. E. 257; Kelly v. Parker, 181 Ill. 49, 54 N. E. 615. But it is still open to the court to hold that the power to revoke shows such an intention to evade the inheritance tax that the trust is a testamentary disposition under the transfer tax laws. Matter of Bostwick, 160 N. Y. 489, 55 N. E. 208. It might have been a more satisfactory ground of decision to construe "in contemplation of death" to include gifts made inter vivos with an intent to escape the tax. Earlier New York cases, however, seem to exclude such an interpretation of the statute. Matter of Spaulding, 49 App. Div. 541, 63 N. Y. Supp. 694 (aff'd, 163 N. Y. 607, 57 N. E. 1124); Matter of

Mahlstedt, 67 App. Div. 176, 73 N. Y. Supp. 818 (aff'd, 171 N. Y. 652, 63 N. E. 1119). Whatever line of reasoning be adopted, the principal case reaches a result which seems essential in order to prevent wholesale evasions of the

tax.

TRUSTS POWERS AND OBLIGATIONS OF TRUSTEE INVESTMENT OF TRUST FUNDS IN PARTICIPATING MORTGAGE IN TRUSTEE'S NAME. A trust company invested the funds of several unrelated trusts in one mortgage, which it took in its own name, without any indication of the trust. Accurate accounts of the shares contributed by the various funds were kept, the security was ample, and the company could liquidate the investment of any of the funds at any time. Held, that the participating mortgage in the name of the trustee is improper. In re Union Trust Co. of New York, 149 N. Y. Supp. 324 (Surr. Ct., King's County).

The case is clearly right in holding that the investment in the trustee's own name was improper. Corya v. Corya, 119 Ind. 593, 22 N. E. 3; In re Arguello, 97 Cal. 196, 31 Pac. 937. The court also fully appreciated the dangers inherent in the mingling of the funds of different trusts in participating mortgages, but felt constrained by authority to uphold that feature of the investment because of its practical advantages. See Chesterman v. Eyland, 81 N. Y. 398; Barry v. Lambert, 98 N. Y. 300; Graver's Appeal, 50 Pa. 189. The weight of authority, however, forbids the investment of trust moneys in contributing mortgages, which deprive the trustee of control of the fund, and involve the beneficiaries' rights with those of strangers. Webb v. Jonas, 39 Ch. D. 660. It has also been held improper for a trustee to invest the funds of several unrelated trusts in a common or participating mortgage. McCullough's Executors v. McCullough, 44 N. J. Eq. 313, 14 Atl. 642. On principle, this attitude appears correct, for while the trustee retains control of the whole security, as he does not in the case of a contributing mortgage, he is nevertheless subject to conflicting duties to the several cestuis. There is also the constant danger of complications from the appointment of a new trustee for some of the funds, so that the system on the whole, in spite of its advantages in a given case, does not seem to merit judicial approval.

WAR - PRIZE CAPTURE OF VESSEL TRANSFERRED TO DOMESTIC CORPORATION COMPOSED OF ALIEN ENEMIES. - Two vessels of German registry, owned by a German company, while en route from Hamburg to London, were sold by telegraph on August 1 to an English corporation controlled by the stockholders of the German company. On August 5, the day after the declaration of war, the vessels arrived at an English port, still flying the German flag, and were there seized as prizes. In a suit for their detention, the English corporation put in a claim that the transfer of ownership invalidated the seizure. Held, that the claim should be dismissed. The Tommi and The Rothersand, 59 Sol. J. 26 (Prize Court).

See

It is settled that all transfers of ownership in transitu are void when made during or in contemplation of hostilities, in order to avoid capture. The Jan Frederick, 5 C. Rob. 128; see The Ann Green, 1 Gall. (U. S.) 274, 291. also 28 HARV. L. REV. 188, 190. Moreover, the German registry and flag are conclusive against the claimant. The Danckebaar Afrikaan, 1 C. Rob. 107, 113. See Declaration of London, art. 57; 28 HARV. L. REV. 217. The court further suggests that in spite of the formal transfer, the vessels might still be considered as German-owned because the English corporation was in reality substantially identical with the German company. It is possible that the intimation of the court was broader, and meant to imply that prize law might disregard the corporate fiction wherever the shareholders were alien enemies. The point, however, has never been decided, probably because the seizure has