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(Mass.) 341. In the principal case no difficulty arises on the question of notice. Accordingly, if there was an intention to bind the land at the time of the contract of sale, equity should enforce the agreement in spite of the conveyance of the prospective dominant tenement to a third party before the completion of the contract. Barrow v. Richard, 8 Paige (N. Y.) 351. The court, however, decided against the existence of any such intention, partly upon the ground that preliminary agreements will not be considered when the transaction has been embodied in a formal instrument. Leggott v. Barrett, 15 Ch. D. 306. The view of American courts on this matter is more liberal, and it is quite probable that they would come to a different result on this basis. Parker v. Nightingale, supra. Not finding such an intention, the principal case seems correct in holding that the conveyance itself created no enforceable right. For such restrictive agreements really create equitable property rights, closely analogous to legal easements. Peck v. Conway, 119 Mass. 546. And legal easements cannot be created by deed in favor of a third party. See Owen v. Field, 102 Mass. 90, 115; cf. Haverhill Savings Bank v. Griffin, 184 Mass. 419, 68 N. E. 839. But see Gibert v. Peteler, 38 Barb. (N. Y.) 488, 514.
STATUTE OF FRAUDS — INTERESTS IN LAND — PAROL SURRENDER OF FINAL YEAR OF LEASE. — In consideration of the lessor's oral promise to pay a certain sum, the lessee orally agreed to surrender at the beginning of the year, the last year of a six-year lease. The lessor later repudiated the agreement on the ground that the state statute of frauds required “the creation, grant, assignment, or surrender of any estate or interest in lands other than leases for a term not exceeding one year” to be in writing. Wis. STAT. (1913), § 2302. The lessee now sues to enforce the lessor's promise to pay. Held, that he can recover. Garrick Theatre Co. v. Gimbel Bros., 149 N. W. 385 (Wis.).*
Before the statute of frauds any lease in possession could be surrendered by parol. Gwyn v. Wellborn, 1 Dev. & Bat. (N. C.) 313. See Schiefselin v. Carpenter, 15 Wend. (N. Y.) 400, 405. Under the statute, even in the form which provides that “no lease, estate, or interest in land shall be surrendered unless by deed or note in writing," or by operation of law, the weight of American authority allows surrender by parol of terms creatable by parol. Kiester v. Miller, 25 Pa. 481; Ross v. Schneider, 30 Ind. 423. Contra, Mollet v. Brayne, 2 Camp. 103. Under the form of statute in force in the principal case, the validity of such parol surrenders is expressly recognized. Accordingly, as the statute clearly refers to the length of the term transferred, not to the length of the estate from which it was carved, a parol surrender of an unexpired year or less of a term should be valid. Smith v. Devlin, 23 N. Y. 363; but see Kittle v. St. John, 7 Neb. 73, 75. In the principal case, the surrender was to operate in the future. Under the ordinary form of the statute, however, a term for years may be created to begin in the future. Young v. Dake, 5 N. Y. 463; Baumgarten v. Cohn, 141 Wis. 315, 124 N. W. 288. Since a surrender is but a re-demise of part of the lease, the decision seems correct in holding that a surrender in futuro should be equally valid. Allen v.Jaquish, 21 Wend. (N. Y.) 628; see 2 REED, STATUTE OF FRAUDS, $ 771.
STREET RAILWAYS — Tort LIABILITY — CONTRIBUTORY NEGLIGENCE DETERMINED BY RELIANCE ON OBSERVANCE OF 'STATUTORY Duty. - The plaintiff, a truck driver, on approaching the defendants' tracks, looked for a car from a place where he had an unobstructed view far enough to see any car which could have reached him, if running at the rate of speed required by an ordinance. He then went on the track without looking again, and was struck by a car running at an illegal speed. The plaintiff offered no evidence to prove that he knew of the ordinance or relied upon it. The court below directed a verdict for the defendant. Held, that the directed verdict was Then, 159
332 (Mo. App.).
The case is particularly interesting as a vigorous denial of the fiction that a man is presumed to know the law, which grew up as an expression of the principle that ignorance of the law is no excuse. See Regina v. Coote, 9 Moo. P. C. N. S. 463; Mackowik v. Kansas City, St. J. & C. B. R. Co., 196 Mo. 550, 571, 94 S. W. 256. In putting on the plaintiff the burden of proving his reliance on the defendants' performance of its statutory duty, however, the court seems to have gone too far in the opposite direction, and to have formulated a presumption that a man knows nothing about the law. According to the local law, the burden of proving the plaintiff's contributory negligence was on the defendant. Bluedorn v. Missouri Pacific Ry. Co., 24 S. W. 57 (Mo.). And Missouri does not purport to follow the artificial Pennsylvania doctrine that a man who does not “stop, look, and listen” at the edge of the track is negligent as a matter of law. Rissler v. St. Louis Transit Co., 113 Mo. App. 120, 124, 87 S. W. 578, 580. Cf. Burke v. Union Traction Co., 198 Pa. St. 497, 48 Atl. 470. To entitle the defendant to a directed verdict, therefore, it was necessary to show conduct on the part of the plaintiff which could not reasonably be found consistent with due care. In the principal case, however, the only evidence before the court showed a course of action which might have been either careful or negligent, according as the plaintiff relied on the observance of the statute or not. Baltimore &x 0. S. W. Ry. Co. v. Ill. 535, 42 N. E. 971. The court's presumption of ignorance of the statute seems a strange one, for it is reasonable to suppose that a driver would be familiar with the speed laws of the city. See Schmidt v. Burlington, C. R. & N. Ry. Co., 75 Ia. 606, 39 N. W. 916.
TAXATION PARTICULAR FORMS OF TAXATION — New YORK TRANSFER Tax: TAXATION OF RIGHT OF SURVIVORSHIP. - The owner of stock in a certain corporation, by vote of the corporation, was entitled to the total net income for life, and had certain of the shares reissued to himself and another, and the survivor of them. This transfer was gratuitous, and the donor reserved the right to vote the stock as well as the right to annul the donee's interest during his life. The donor died after the passage of the Transfer Tax Act. Held, that the survivor's interest is taxable. Matter of Dana Co., 164 N. Y. App. Div. 44.
The New York Transfer Tax law provides that any transfer of property intended to take effect “in possession and enjoyment” after the death of the donor shall be taxable. Consol. Laws, N. Y., Tax Law, $ 220, subd. 4, 5. It is not necessary that the transfer be made in contemplation of death. See Matter of Brandreth, 169 N. Y. 437, 441, 62 N. E. 563, 564. But ordinarily a gift inter vivos, not made in contemplation of death, will not be taxable. Matter of Spaulding, 163 N. Y. 607, 57 N. E. 1124. See McELROY, TRANSFER TAX LAW, 2 ed., § 148. It has been held, however, that a gift of stock inter vivos is taxable where all the dividends, as well as the right to vote the stock, are reserved to the donor for his life, so that the gift is intended to rest in enjoyment after his death. Matter of Brandreth, supra. The test laid down by the courts, under a broad construction of the statute, is whether or not the enjoyment of the property by the transferee begins at or after the death of the transferor. The principal case, therefore, is clearly correct, although it might not be proper to reach the same result in the ordinary case of joint interests.
TRADE MARKS AND TRADE NAMES — PROTECTION APART FROM STATUTE - PURCHASE OF A NAME BY A CORPORATION FOR PURPOSES OF UNFAIR COMPETITION. - Arthur A. Waterman had established a small and unsuccessful
fountain-pen business in competition with the complainant. The defendant corporation bought this business for the express purpose of employing the name in unfair competition. Held, that relief will not be given further than to require the defendant to use the name with the suffix “not connected with the L. E. Waterman Co.” L. E. Waterman Co. v. Modern Pen Co., 235 U. S. 88.
Previous to this decision the attitude of our courts toward a trader who seeks to draw to himself the profit of a predecessor in the business through a similarity of name has been most severe. Newly formed corporations must not imitate the legal cognomen of a rival. Holmes v. Holmes, etc. Co., 37 Conn. 278; Hendriks v. Montagu, 17 Ch. Div. 638. Repeatedly where a dummy member has been taken into a corporation or partnership for the very purpose of making possible the unfair competition, the use of the name in any way whatever has been prohibited. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490; R. W. Rogers Co. v. Wm. Rogers Mfg.Co., 70 Fed. 1017; Melachrino and Co. v. The Melachrino, etc. Co., 4 Pat. Rep. Eng. 215. Much of the former authority, furthermore, seems to regard it as immaterial that the individual from whom the name was secured had to a certain extent been actually engaged in the business. R. W. Rogers Co. v. Wm. Rogers Mfg. Co., supra; Sawyer v. Kellogg, 7 Fed. 720. See 12 Harv. L. Rev. 243, 245. And when an enterprising but piratical manufacturer boldly changed his own name to match that of his competitor, its use by him was absolutely enjoined. Pinet v. Pinet, (1898) 1 Ch. 179. In contrast to all of this, it must be remembered that where the right of an individual to use his own name is involved the courts will never go further than to insist that he make an honest effort to prevent confusion in the public mind. American Cereal Co. v. Eli Pettijohn Cereal Co., 72 Fed. 903; Walter Baker & Co. v. Baker, 77 Fed. 181. The majority opinion in the principal case lays stress on this point, and holds in effect that the assignee corporation must stand on the same footing as would the individual himself. But a corporation is free to choose its own name, and if it takes a name with practically no desire but that of unfair profit, there are no personal considerations to hamper the court. It would seem, therefore, as though justice fell short if it did not make the piracy completely impossible. No amount of relief in the shape of accompanying suffixes can altogether eliminate confusion, and to the extent that it fails the defendant corporation, as the dissent points out, is able to consummate its fraudulent desire. See International Silver Co. v. Rogers Corporation, 67 N. J. Eq. 646, 60 Atl. 187. Instructive sidelights are thrown on the principal case by its report in the District Court. See 193 Fed. 242.
WITNESSES SEQUESTRATION — DISQUALIFICATION FOR DISOBEYING SEQUESTRATION ORDER. A witness remained in court in violation of a sequestration order, without the connivance of the party calling him. The trial court excluded his testimony. Held, that the ruling is correct. Illinois Central Ry. Co. v. Outland's Adm'x, 170 S. W. 48 (Ky.).
Where a witness violates a sequestration order and remains in court, without the connivance or consent of the party calling him, the probable weight of authority holds it reversible error to exclude the testimony. Friedman v. Myers, 14 N. Y. Supp. 142; Parker v. State, 67 Md. 329, 10 Atl. 219; Behrman v. Terry, 31 Colo. 155, 71 Pac. 1118. Even under this rule, the fact that the witness has violated an exclusion order would, of course, affect his credit. See Ferguson v. Brown, 75 Miss. 214, 224, 21 So. 603, 605. It has been held, however, in accordance with the principal case, that exclusion of the witness is discretionary, even where the party for whom he testifies is not at fault. Galveston, etc. Ry. Co. v. Pingenot, 142 S. W. 93 (Tex. Civ. App.); Thorn v. Kemp, 98 Ala. 417, 13 So. 749. Against lodging this discretion in the trial court, it has been argued that an innocent party should not be deprived of
material testimony, but that the disobedient witness should rather be fined for contempt. See Parker v. State, supra. But whenever the presence of the witness during the other testimony is likely to prejudice seriously the opposing side, even though the jury have been instructed that the violation should impair the credibility of the testimony, the court should have discretion to exclude this evidence. In this event one of the two litigants must suffer, and it is just that the burden should fall on the party whose witness was disobedient. See 14 Harv. L. REV. 475, 492.
BOOK REVIEWS THE CRIMINAL JUSTICE ADMINISTRATION ACT, 1914. By Neville Anderson.
London: Stevens and Haynes. 1914. pp. 126. The last volume of the English statutes, containing as it does almost entirely enactments dating from that fateful third of August, 1914, is apt to be of future interest much more to statesmen and historians than to lawyers and social reformers. It constitutes a most impressive body of war measures, dealing with finance, commerce, the defense of the realm, the security of food supply, the treatment of aliens, etc., etc. But even during those overwhelming days, a few acts, then in the process of legislation, reached passage, which are of importance beyond the exigencies of war time and of practical interest beyond the confines of England. Of these is the Criminal Justice Administration Act, 1914 (4 & 5 Geo. V, ch. 58).
This Act affects important changes in the administration of the criminal law in England. Its two main purposes are stated with summary accuracy in the title — "an Act to diminish the number of cases committed to prison [and] to amend the Law with Respect to the Treatment and Punishment of young delinquents.”
The Prevention of Crimes Act, 1908 (8 Edw. VII, ch. 59), marked a decided change in the treatment of juvenile adult offenders (those between the ages of sixteen and twenty-one). The educative and preventive treatment of such delinquents, and the beginnings of a probationary system to make it effective, commenced by that Act, have now been extended. Juvenile adult offenders who have been sentenced to a payment of a fine may now be placed under the supervision of probation officers pending such payment and, before finally issuing a commitment for non-payment, a report of a probation officer as to the conduct and means of the offender is to be considered by courts of summary jurisdiction (Section 1 (3) ). Even more important is the extension of the Borstal system (i. e., industrial reformatory institutions for youthful delinquents). Under the Prevention of Crimes Act, 1908, sentences of detention in Borstal institutions could be imposed only in a limited number of cases. The present Act extends the scope of such detentions to every case where an offender is summarily convicted of an offense for which a sentence of imprisonment of one month or upwards, without the option of a fine, may be imposed, provided that such offender has been previously convicted or has failed to observe the recognizance on a previous discharge on probation and “it appears to the court that, by reason of the offender's criminal habits or tendencies or associations with persons of bad character, it is expedient that he should be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime” (Section 10 (1)). Experience has demonstrated that a longer period of detention and supervision is necessary to give the Borstal system a fairer chance
of proving itself than was provided by the Act of 1908. Therefore, the minimum period of detention has now been extended from one year to two years, and, after discharge from an institution, the supervisory authority of the prison commissioners is now extended from six months to one year (Section 11). While no change has been made in the extent of the juvenile court legislation embodied in the important Children Act of 1908 (8 Edw. VII, ch. 67, Section 111 et seq.), particularly so as to extend the age limit of children under its protection above
of fourteen, in the light of the tendency manifested by the new Act it does not seem rash to express the belief that, when England will again be permitted to think beyond matters of national defense, English legislation will adopt the natural development of this subject indicated by our experience under the juvenile court acts of the more advanced States. (See Judge Mack on the “Juvenile Court" in 23 Harv. L. REV. 204.)
Notable improvement is made by the Act likewise in the treatment of adult offenders. Section I now makes it obligatory upon courts of summary jurisdiction to allow time for the payment of fines, subject to appropriate exceptions. It is interesting to note that this method of stimulating industry by enabling a delinquent to earn the means of paying his fine has been worked out by some of our federal judges under makeshift probationary systems without any machinery provided by law. Of course, such a method of administration should not depend upon the chance interest of an overburdened judiciary, but should be carefully worked out through legislation and through the necessary administrative personnel to help in its enforcement. Sections 12 and 13 of the Act confer new powers upon summary courts of jurisdiction in dealing with offenders by allowing “detention” in lieu of "imprisonment” in cases of short sentences, to wit, sentences for a less period than five days. Clearly this is a conservative recognition of the deep psychological fact that the social interest of the state as to certain delinquents is adequately enforced through detention, and that the stigmatizing implications of imprisonment involve in such cases a real loss to the community. Even in so rigorously practical an institution as the army this principle has been applied. In the case of certain military offenders, in the place of prisons, detention barracks have been established, and this system, under the administration of Judge AdvocateGeneral Crowder, is showing most promising results. Of course, in all these matters we must go slow and be wary of general theory; no less wary when our humanitarianism responds to such theory. The problem here as elsewhere is to draw lines, not unalterable ones at that, based on dependable data.
The present Act makes other minor changes in criminal procedure and administration, all of which have been carefully indicated in the convenient annotations to the Act which Mr. Anderson has given us. One of these provisions (Section 17), empowering the Home Secretary to "appropriate either wholly or partially particular prisons within his jurisdiction to particular classes of prisoners,” is apt to arouse the envy of American executives like the Governor of Massachusetts, - and with good reason. A proper overhauling and coördination of our prison systems to fit the need of the present generation is a pressing problem in many States.
THE JUVENILE COURT AND THE COMMUNITY. By Thomas D. Eliot. New
York: The Macmillan Company. 1914. PP. XV, 234. "When is a Juvenile Court not a Juvenile Court?” This query, which forms the caption to one of the chapters in Mr. Eliot's book, might well have been applied to the entire volume. The functions of the Juvenile Court are