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fact, a gift mortis causa has been held valid although the donor died of another disease than the one he feared. Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627. It would seem therefore that the gift should have been sustained in the principal case. Consumptives are proverbially optimistic, and the fact that a man takes steps to cure a serious disease does not mean he has no realization of his danger.

HABEAS CORPUS — JURISDICTION TO ISSUE WRIT AFTER COMMITMENT BY ANOTHER FEDERAL COURT UNDER FEDERAL STATUTE ALLEGED TO BE UNCONSTITUTIONAL. A witness called by a committee of the House of Representatives, authorized to investigate financial conditions as a preliminary to legislation and to examine witnesses for that purpose, refused to answer certain questions put to him by the committee. He was thereupon indicted in the District of Columbia for contempt under U. S. REV. Stat., 88 101-104, arrested in New York, and held for removal. He then applied for a writ of habeas corpus on the ground that Congress had no power under the Constitution to compel a citizen to give such testimony. Held, that the writ be discharged. Henry v. Henkel, 235 U. S. 219.

Habeas corpus proceedings present the issue whether the prisoner is unlawfully restrained of his liberty. U. S. REV. STAT., $ 752. But the general rule is that on such applications, the federal courts will not determine controverted questions of law or fact, but will leave the prisoner to prove his right to liberty in the trial court, and if unsuccessful there, to prosecute his claim by writ of error. See Ex parte Royall, 117 U. S. 241, 251. In certain exceptional cases, as where the issuance of the writ is necessary to protect the federal government in the execution of its functions, the court will inquire fully into the questions of law and fact involved, and make a summary order. In re Neagle, 135 U. S. 1. And in any case, an immediate writ would issue if it appeared that there was no provision of the common law or of any statute making the act charged an offense. See Greene v. Henkel, 183 U. S. 249, 261. But where, as in the principal case, an indictment makes a primâ facie case, the court will confine itself to a determination of the other tribunal's authority over such a case as this appears to be on its face, and will not inquire into the constitutionality of the statute supporting the indictment, or the sufficiency of the charge. Matter of Gregory, 219 U. S. 210. The application of this general rule to the principal case made it unnecessary for the court to pass upon the interesting and longmooted question of the power of Congress to compel witnesses to give testimony to be used as a basis for legislation.

INTERSTATE COMMERCE CONTROL BY STATES RIGHT OF FOREIGN CORPORATION TO ENFORCE IN STATE Courts CONTRACTS ARISING IN INTERSTATE COMMERCE. – A foreign corporation sued in a state court to recover the price of goods shipped to a resident of the state in compliance with an order given to its traveling salesman. A state statute which denied the right to sue in the state courts to any foreign corporation which had not appointed a resident agent and filed certain reports, was construed by the state court to apply to this transaction. Held, that, so construed, the statute is an unconstitutional restraint upon interstate commerce. Sioux Remedy Co. v. Cope, 235 U. S. 197.

A statute of the same general nature being in force, a foreign corporation sued to collect a debt which arose from a similar sale. Held, that the statute does not apply to suits arising from interstate commerce. American Art Works v. Chicago Picture Frame Works, 264 Ill. 610, 106 N. E. 440.

The first case settles a previous conflict of authority by applying to these statutes the principle that a state may not, in exercising its right to impose conditions upon the admission of foreign corporations, thereby hamper interstate commerce. Robbins v. Shelby County Taxing District, 120 U. S. 489. See Paul v. Virginia, 8 Wall. (U. S.) 168, 182. Generally the courts have avoided this problem by holding, as does the second case, that the law in question applies only to suits arising from intrastate business. Mearshon & Co. v. Pottsville Lumber Co., 187 Pa. 12, 40 Atl. 1019. Even when construed as in the first case, the statute has been sometimes considered valid. WilsonMoline Buggy Co. v. Hawkins, 80 Kan. 117, 101 Pac. 1009. But the rule established by the first principal case has been adopted by several other courts, and seems plainly sound. Bateman v. Western Star Milling Co., 1 Tex. Civ. App. 90, 20 S. W. 931; Murphy Varnish Co. v. Connell, 10 N. Y. Misc. 553, 32 N. Y. Supp. 492. As to the general right to do interstate commerce, it is settled that such restrictions as were here imposed are invalid. International Textbook Co. v. Pigg, 217 U. S. 91. To put similar conditions precedent on the right to sue in the state courts indirectly hampers interstate commerce, by shutting off the foreign corporation from the normal mode of enforcing its rights against those with whom it deals. It is no more legitimate to require a choice between this hardship and the expense of complying with the law than to demand absolute obedience to the conditions of the statute. See 23 HARV. L. Rev. 66.

Fed. 1.

INTERSTATE COMMERCE_CONTROL BY STATES — STATE TAX ON INTERSTATE C. 0. D. SHIPMENTS OF INTOXICATING LIQUORS: WEBB-KENYON ACT. A state statute imposed an occupation tax of five thousand dollars on each place maintained for handling liquors C. O. D. TEXAS, LAWS OF 1907, C. 4. The defendant pleads this statute as a defense to a refusal to deliver an interstate C. 0. D. shipment of liquors made by the plaintift. Held, that the statute is constitutional. Rosenberger v. Pacific Express Co., 167 S. W. 429 (Mo.).

The holding of the principal case, that collections on interstate C. 0. D. shipments are not part of interstate commerce, seems unsound, for the commerce clause of the Constitution has been broadly construed to include all dealings intimately related to the importation of goods or passengers from one state to another. Butler Bros. Shoe Co. v. United States Rubber Co., 156

Thus a license tax on firms shipping goods into the state C. O. D. has been held an unconstitutional regulation of interstate commerce. Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441. For the same reason a state statute prohibiting the delivery of any C. O. D. shipment of intoxicating liquors is unconstitutional. Adams Express Co. v. Kentucky, 206 U. S. 129. The tax imposed in the present case was so high as to amount to a prohibition of such shipments of liquors into the state, and seems clearly unconstitutional unless aided by the so-called Webb-Kenyon Act, to which the court did not refer. Louisville & Nashville R. Co. v. Cook Brewing Co., 223 U. S. 70. In substance, this statute prohibits interstate shipments of liquor intended to be used in violation of the law of the state of destination. 37 U. S. STAT. AT LARGE, 699. See 27 HARV. L. Rev. 763. Various constructions have been put on this act by the state courts, but the better view seems to be that it makes interstate shipments illegal only where there is an intent to use the liquors for a purpose unlawful by virtue of a state statute valid as an exercise of the police power independent of this act. Southern Express Co. v. State, 66 So. 115 (Ala.); Palmer v. Southern Express Co., 165 S. W. 236 (Tenn.); contra, Adams Express Co. v. Beer, 65 So. 575 (Miss.). See 28 Harv. L. Rev. 225. Accordingly, under this view, the federal law would not cure the unconstitutionality of the present statute.

LANDLORD AND TENANT CONDITIONS AND COVENANTS IN LEASES COVENANT TO REPAIR – RIGHT OF THIRD PARTY UNDER COVENANT. — The defendant leased a certain dwelling house to a tenant with a covenant to keep the premises in repair. The plaintiff, the child of a neighbor, whom the court assumed to be an invitee, was injured by reason of the disrepair of the tenant's premises. Held that the plaintiff can recover. Flood v. Pabst Brewing Co., 149 N. W. 489 (Wis.).

Apart from an express covenant to repair, a landlord owes no duty either to a tenant or a third party to take care that the demised premises are safe. Lane v. Cox, (1897) 1 Q. B. 415; Mellen v. Morrill, 126 Mass. 545. Nor does a covenant to repair, as a general rule, render the landlord liable, even to the tenant, for personal injuries resulting from the want of repair. He is not liable in tort because it is a mere nonfeasance, nor in contract because the damages are said to be too remote. Tuttle v. Gilbert Mfg.Co., 145 Mass. 169, 13 N. E. 465; Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220; Schick v. Fleischhauer, 26 App. Div. 210, 49 N. Y. Supp. 962. Third parties, of course, cannot sue on the contract as such. Cavalier v. Pope, (1906] A. C. 428; see Burdick v. Cheadle, 26 Oh. St. 393, 397. It is also generally held that strangers cannot recover from the landlord in tort by showing merely a breach of the contract to repair. Frank v. Mandel, 76 N. Y. App. Div. 413, 78 N. Y. Supp. 855; see Shackford v. Coffin, 95 Me. 69, 49 Atl

. 57; Burdick v. Cheadle, supra. A recent Kentucky case reaches this result. Dice's Adm'r v. Zweigart's Adm'r, 171 S. W. 195. Some jurisdictions, however, allow a recovery on the theory of preventing circuity of action. See Lowell v. Spaulding, 4 Cush. (Mass.) 277, 279. This view seems to be untenable where the tenant cannot recover in contract from his landlord the damages collected from him by the injured third party, because of the remoteness of the damage. Schick v. Fleischhauer, supra. Other jurisdictions allow an invitee of the tenant to recover in tort on what is conceived to be an affirmative duty of due care to make the premises safe, arising out of the contract. This is the reasoning of the principal case. Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289; Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092. These cases seem unsupportable, since they confuse the liability arising from a breach of a duty imposed by law with a duty assumed by contract. See Dustin v. Curtis, 74 N. H. 266, 269, 67 Atl. 220. Cf. Miles v. Janvrin, 196 Mass. 431, 82 N. E. 708.

MECHANICS' LIENS — WAIVER OF LIEN BY CONTRACT BETWEEN MATERIALMAN AND CONTRACTOR. — By a written agreement between a materialman and the contractor, the materialman agreed not to assert his right to a mechanics' lien upon a building being erected for the defendant by the contractor. The defendant had paid the contractor more than was proper in view of the claims of materialmen, but did not learn of this agreement until suit was brought by the materialman to enforce his lien. Held, that the agreement did not constitute a waiver of the lien. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 83 S. E. 210 (Ga.).

In the absence of estoppel, the question whether the materialman has waived his right to a lien is one of intention. Johnson v. Spencer, 49 Ind. App. 166, 96 N. E. 1041; Lee v. Hassett, 39 Mo. App. 67. This may be shown by acts inconsistent with the existence of a lien. Green v. Fox, 7 Allen (Mass.) 85. Or the materialman may waive his right by a contract with the owner. Murray v. Earle, 13 S. C. 87. But where there is merely a contract between the materialman and the contractor, as in the principal case, the owner is but incidentally benefited, and can take no advantage of the contract. Although there is an intention by the materialman to waive his lien, it would seem that it must run to the owner in order to be binding upon him as a waiver.

NEGLIGENCE — DUTY OF CARE EFFECT OF VIOLATION OF STATUTE PROHIBITING THE EMPLOYMENT OF MINORS IN ELEVATORS. - The plaintiff's intestate, a boy less than eighteen years old, was allowed to run an elevator in the defendant's department store, in violation of a statute which made it a misdemeanor to employ or allow persons under eighteen to operate elevators. While so engaged, he was crushed to death. Held, that the plaintiff can recover. Beaver v. Mason, Ehrman & Co., 143 Pac. 1000 (Ore.).

The decision takes the ground that the violation of the statute by the defendant was the equivalent of negligence, and is undoubtedly sound. The statute was designed to prevent just such accidents as the one that occurred. Though the point is not discussed, the case also involves a decision that the boy's part in the violation of the statute does not bar the recovery, for the statute was designed to protect persons in his position, not to punish them, and its policy is such that any assumption of risk by the persons within its purview is forbidden. This follows the accepted view. Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876. For an extensive discussion of the principles involved in the case, see Dean Thayer's article on Public Wrong and Private Action, 27 Harv. L. Rev. 317; see also 26 Harv. L. REV. 262.

NEW TRIAL - TIME WITHIN WHICH MOTION MUST BE MADE — EFFECT OF EXPIRATION OF TERM. — In a criminal proceeding, the defendant was convicted, and judgment entered. After the expiration of the term, it was discovered that one of the jurymen who served at the trial had been prejudiced against the defendant. This discovery could not have been previously made by the exercise of reasonable diligence. Held, that a new trial cannot be granted. United States v. Mayer, 235 U. S. 55.

For a discussion of the effect of the expiration of the term on a party's right to a new trial, see p. 412 of this issue of the REVIEW.

POWERS NON-EXCLUSIVE POWERS — DOCTRINE OF ILLUSORY APPOINTMENTS IN UNITED STATES. - The testator devised land in trust for his son for life, with power to convey to his children “in such shares and proportions among them as he by his last will” should appoint, and in default of appointment to the children in equal shares. The donee of the power by his will gave ten dollars apiece to five of his seven children and the remainder of the proceeds of his real estate to the other two. He possessed no other real estate than that subject to the power. Held, that the will was a valid exercise of the power. Crawford's Estate, 62 Pitts. L. J. 536 (Orphan's Ct., Alleghany Co., Pa.).

Ever since the adoption of the modern rule allowing after-acquired realty to pass by will, general words of devise have been insufficient to exercise a special power of appointment, even though at the date of the will the testator had no other property than that subject to the power. In re Mills, 34 Ch. D. 186. A Pennsylvania statute, however, has established the contrary rule. See Aubert's Appeal, 109 Pa. St. 447. Even under this statute the court would have been forced to hold the appointment invalid if it had applied the doctrine of illusory appointments introduced by the English equity court, which required the donee of a non-exclusive power to appoint to each of the class a substantial portion of the property. Kemp v. Kemp, 5 Ves. 849. England, however, repudiated this doctrine by a statute which provided that a nonexclusive power was validly exercised as long as each member of the class received some of the property, no matter how small a share. II GEO. IV. & 1 Wm. IV., C. 46. A later statute removed this formal requirement and made non-exclusive powers equivalent to exclusive powers. 37 & 38 VICT., C. 37. In America, a few jurisdictions have recognized the doctrine of illusory appointments. Thrasher v. Ballard, 35 W. Va. 524. See 1 TIFFANY, REAL PROPERTY, § 288. But several other states in which the question has arisen, among them Pennsylvania, have wisely refused to adopt as a part of the common law a rule which proved so inadvisable in practice that it was long ago discarded by its creators. See Gracff v. De Turk, 44 Pa. St. 527; Lines v. Darden, 5 Fla. 51, 81; Hawthorn v. Ulrich, 207 III. 430, 69 N. E. 885. The next step in the evolution of the subject in this country should be in line with the second English statute, for the doctrine of non-exclusive appointments introduces a mere technicality so long as it can be evaded by trivial gifts to the rest of the class. See 25 Harv. L. REV. 26.

PROXIMATE CAUSE — INTERVENING CAUSES FORESEEABILITY: EFFECT OF VIOLATION OF STATUTE. In an action for damages for negligent injuries, the plaintiff offered to prove that the defendant, in violation of a city ordinance prohibiting the sale of firearms to minors, sold a rifle and cartridges to a boy of fifteen, and that the boy accidentally shot the plaintiff with the rifle. Held, that a verdict was rightly directed for the defendant. Hartnett v. Boston Store of Chicago, 106 N. E. 837 (Ill.).

Upon common-law principles, the independent intervening act of a third person will not make a preceding cause remote if such act was foreseeable. Lane v. Atlantic Works, 111 Mass. 136; Jennings v. Davis, 187 Fed. 703, 711. This rule has been applied both to cases under statutes and, in their absence, to cases where foreseeable injury has resulted from firearms or explosives placed in the hands of third parties. Dixon v. Bell, 5 M. & S. 198; Sullivan v. Creed, (1904) 2 I. R. 317; Carter v. Towne, 98 Mass. 567; Anderson v. Settergren, 100 Minn. 294, III N. W. 279; Binford v. Johnston, 82 Ind. 426. The principal case reasoned that since no proof of the foreseeability of the boy's act was offered, the defendant was not the proximate cause of the injury. It is submitted that the correctness of the decision depends upon the construction of the ordinance involved. If the ordinance was passed to avert danger to other people from firearms in the hands of minors, then, the harm having resulted by the very means through which the legislative body apprehended it, the defendant should not be permitted to negative causation on the ground that harm through this means was not foreseeable in the particular case. See Pizzo v. Wicman, 149 Wis. 235, 134 N. W. 899; see 27 Harv. L. REV. 319 et seq. Under this view the plaintiff would be entitled to a verdict on the facts offered. If, however, the ordinance is, as it would in fact appear to be, solely for the purpose of preventing injury to minors from firearms in their own hands, then the result of the principal case is justifiable. Under a similar statute another jurisdiction has reached the same result as the principal case. Poland v. Earhart, 70 Ia. 285, 30 N. W. 637.

RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY AGREEMENT IN CONTRACT OF SALE TO ENTER INTO RESTRICTIVE COVENANT

ENFORCEMENT OF SUCH AN AGREEMENT AS AN EQUITABLE SERVITUDE.

The owner of adjoining tracts of land contracted to sell one to the plaintiff, who agreed to covenant in the conveyance not to make any use of the premises offensive to the vendor, his heirs and assigns, which would lessen the value of the adjoining land as residential property. The vendor then conveyed the adjoining land to a third party, and later completed the conveyance to the plaintiff, who convenanted as agreed. The plaintiff contracted to sell to the defendant, who refused to perform on learning of the restrictive covenant. Held, that the plaintiff is entitled to specific performance, since the restrictive covenant is not enforceable. Millbourn v. Lyons, (1914) 2 Ch. 231 (C. A.).

Equity will enforce a restrictive covenant, irrespective of whether or not it runs with the land at law, against assignees with notice who are not parties to the covenant, if there is a clear intention to bind the land, and not merely the parties to the covenant. Tulk v. Moxhay, 2 Phil. 774; Whitney v. Union Ry. Co., 11 Gray (Mass.) 359. The agreement need not be in the form of a covenant a mere oral agreement is enough. Parker v. Nightingale, 6 Allen

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