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actress the exclusive right to use her picture on posterettes. The defendant thereafter, with the consent of the actress, published and sold posterettes bearing the same picture. Held, that an injunction not granted. Pekas v. Leslie, 52 N. Y. L. J. 1864 (N. Y. Sup. Ct.).

For a discussion of the New York statutory right of privacy and the rights involved in the unauthorized use of one's name or picture, see p. 689 of this issue of the REVIEW.

RAILROADS LIABILITY FOR DAMAGE TO ANIMALS BREACH OF DUTY To FENCE. - The defendant railroad was under a prescriptive duty to maintain a fence between its property and the plaintiff's land. By reason of a defect in the fence, the plaintiff's cattle strayed upon the right of way and were killed by a locomotive. Held, that the plaintiff may recover. Titus v. Pennsylvania R. Co., 92 Atl. 944 J.).

The plaintiff's horse, through the defendant railroad's breach of its statutory duty to maintain a fence, escaped onto the defendant's tracks and was killed by falling off a bridge. Held, that the plaintiff may recover. Davis v. Central Vermont Ry. Co., 92 Atl. 973 (Vt.).

Under the English common law, and the prevailing view in this country, maintenance of a division fence by one of two adjoining landowners for the prescriptive period subjects him and his successors to a duty to maintain it perpetually. See GALE, EASEMENTS, 8 ed., p. 465; Binney v. The Proprietors of the Lands in Hull, 5 Pick. (Mass.) 503. Castner v. Riegel, 54 N. J. L. 498, 24 Atl. 484. But see contra, Wright v. Wright, 21 Conn. 329, 344; Glidden v. Towle, 31 N. H. 147, 169. Though generally called a “spurious easement,' this obligation might more accurately be described as a prescriptive covenant running with the land. A breach of the obligation renders the owner of the servient land liable to the owner of adjoining land for all damage proximately ensuing from the breach. See GALE, EASEMENTS, 8 ed., p. 465; Lawrence v. Jenkins, L. R. 8 Q. B. 274. Civil liability for violation of a criminal statute imposing affirmative duties is not so sweeping; it exists only where the harm was clearly one which the statute was designed to prevent. See Gorris v. Scott, L. R. 9 Ex. 125; 27 Harv. L. Rev. 317, 335. Accordingly, where a fencing statute expressly allowed recovery for injury caused by “agents, engines or cars” of the railroad, recovery for other kinds of injury was held to be excluded by implication. See Schertz v. Indianapolis, B. & W. Ry. Co., 107 Ill. 577. One section of the fencing laws of Vermont contains a similar provision; but another section with a different legislative history, reaffirming the duty to fence, contains no reference to civil liability. VT. PUB. STATS. $$ 4453-6. The decision that a fall from the track was one of the things for which this section permits civil recovery seems sound.

RAILROADS REGULATION OF RATES — STATE REGULATION: Non-ConPENSATORY RATES FOR PASSENGERS OR PARTICULAR COMMODITIES. - A North Dakota statute fixed maximum intrastate rates for the transportation of coal in carload lots. After the statute had been enforced for over a year, it was shown that on one of the railroads in question the receipts from the transportation of coal under the new rates exceeded the cost of transportation, including actual out-of-pocket expense of moving it together with all fixed or overhead expenses apportionable to such traffic, by only $847: On the other road in question the total receipts under the new rates, while exceeding the out-ofpocket costs of moving the traffic, were some $9,000 to $12,000 less than the total costs including fixed and overhead expenses chargeable to the coal traffic. Held, that the statute is unconstitutional. Northern Pacific Ry. Co. v. North Dakota, U. S. Sup. Ct. Off. Nos. 420, 421 (March 8, 1915).

A West Virginia statute prescribed a maximum rate of two cents a mile for

the transportation of passengers within the state. After the rate had been tested by operating under it for two years, it was shown to yield a return only slightly, if at all, in excess of the actual out-of-pocket expense of conducting the service plus the apportioned share of fixed charges attributable to the passenger traffic. Held, that the statute is unconstitutional. Norfolk & Western Ry. Co. v. Conley, U. S. Sup. Ct. Off. No. 197 (March 8, 1915).

For a discussion of the principles involved in these cases see this issue of the REVIEW, p. 683.

RESTRAINT OF TRADE - SHERMAN ANTI-Trust Law — SIZE OF COMBINATION AS A BASIS FOR DISSOLUTION. The United States brought a bill in equity against the Keystone Watch Case Company charging violations of the first and second sections of the Sherman Anti-Trust Act. It appeared that the defendant had acquired control of about fifty per cent of the industry and that it had since imposed restrictive agreements upon jobbers to whom the product was sold. But no inflation of prices, limitation of production, or other abuse of power was shown. Held, that the unfair practices be enjoined, but that the petition for dissolution be dismissed. United States v. Keystone Watch Case Co., 218 Fed. 502 (Dist. Ct., E. D., Pa.).

Since the decree by the federal district court in Minnesota dissolving the International Harvester Company, and pending the appeal to the United States Supreme Court, a number of opinions have been given in coördinate courts that display a sharp divergence from the construction laid upon Section 2 of the Sherman Act by that decision. In the principal case three circuit judges adopt the principles to be found in the dissent of Sanborn, J., in the Harvester case, and accept the rule that size alone does not constitute monopoly within the meaning of the Act. See United States v. International Harvester Co., 214 Fed. 987, 1002. There must be unreasonable use of power, and actual or threatened injury to the public to warrant dissolution. See 28 Harv. L. Rev. 87. In the “fighting ships” case the court dealt with a combination of steamship lines that was using certain unfair methods, but that decree also stopped short of dissolution and simply enjoined the illegal practices. United States v. Hamburgh American S. S. Line, 216 Fed. 971. In another steamship case the government established that a large consolidation had taken place, but here too the petition for dissolution was dismissed because no one could be found among shippers, competitors, or the general public who was dissatisfied with it, or who could show unreasonable injury therefrom. United States v. American-Asiatic S. S. Co., 220 Fed. 230. In any case where the record of a combination is likewise barren of grievances on the part of the public or of individuals, to enforce its dissolution solely on account of magnitude is a step thoroughly hostile to the industrial development of the country,


CREATION OF DowER RIGHT IN STRANGER APART FROM SEISIN OF THE HUSBAND. - An owner of land, whose wife had a statutory interest in the property similar to dower, made a contract to convey to the plaintiff in which the wife did not join. The wife later joined with him in a conveyance to the defendant, who had notice of the plaintiff's claim. The plaintiff now brings a bill for specific performance. Held, that the defendant convey such interest as the plaintiff could have acquired from the vendor with suitable abatement from the purchase price, or at his own election, convey the whole. Williams v. Wessels, 145 Pac. 856 (Kan.).

A release of inchoate dower operates as an extinguishment of the wife's interest. Witthaus v. Schack, 105 N. Y. 332, 11 N. E. 649; Chicago Dock Co. v. Kinzie, 49 Ill. 289. See Tirrel v. Kenney, 137 Mass. 30, 32. Consequently it has been held hitherto that a purchaser with notice who gets a conveyance free from dower must convey to the prior purchaser who did not secure the wife's signature, upon receiving the purchase price or such portion thereof as shall put him in statu quo. Saldutti v. Flynn, 72 N. J. Eq. 157, 65 Atl. 246; Mansfield v. Hodgdon, 147 Mass. 304, 17 N. E. 544. However, he has in effect purchased for value a portion of the rights in the freehold to which an instant before the conveyance the prior purchaser was not entitled in law or equity. Mix v. Baldwin, 156 Ill. 313, 40 N. E. 959; Richmond v. Robinson, 12 Mich. 193. And therefore there is reason to revive the incumbrance and give him the value of his bargain to that extent. On the other hand inchoate dower, as such, cannot be aliened. Mason v. Mason, 140 Mass. 63, 3 N. E. 19; Witthaus v. Schack, supra. See LAMBERT, DOWER, P. 26. But the husband is often compelled to convey his interest alone, leaving the dower in the wife. Davis v. Parker, 14 Allen (Mass.) 94. See 25 HARV. L. REV. 731. To this extent, at least, the policy against allowing the fee and the inchoate dower interest to be held by parties who are strangers to each other has never controlled. Nor does it seem too much against policy for the court in the principal case to revive this anomalous interest in the subsequent purchaser, at least in jurisdictions such as Kansas, where there have been indications of a liberal attitude toward inchoate dower. See Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159. The abatement of the purchase price granted in the principal case would be refused by some courts in a suit against the husband, because of the tendency to coerce the wife. Reisz's Appeal, 73 Pa. 485; Bride v. Reeves, 36 App. D. C. 476. But no such difficulty arises here, and in the manner of allowing compensation the court also follows the weight of authority, computing it according to the theory of probabilities instead of giving indemnity to the purchaser by reserving until the wife's death the value of vested dower, subject to interest. Walker v. Kelly, 91 Mich. 212, 51 N. W.934; Davis v. Parker, supra; Sanborn v. Hookin, 20 Minn. 178; see 25 HARV. L. Rev. 731.

TRADE UNIONS PUNISHMENT OF OUTSIDE PARTY SUIT TO RESTRAIN LABOR UNION FROM COMPELLING MEMBERS NOT TO TAKE EMPLOYMENT BY THREATENING FINE. The plaintiff, having entered into a contract with certain members of defendant union, which comprised practically all the musicians of Rhode Island available, refused to go on with the contract, claiming that unsatisfactory music was furnished. He then arranged with other members of defendant union to play for him, whereupon the directors of the union having heard both sides of the dispute with the first orchestra and decided that the plaintiff had wrongfully broken his contract, acted in accordance with a by-law of the union and forbade all union members to enter or continue in the employ of the plaintiff. The lower court granted a preliminary injunction restraining the defendants from interfering with the business of the plaintiff or attempting to collect any fines from its members by way of enforcing the order of the directors. Held, that the injunction be dissolved. Rhodes Brothers v. Musicians' Protective Union Local, etc., 92 Atl. 641 (R. I.).

For a discussion of the use of fines and other disciplinary measures to enforce a union by-law for the punishment of an outsider, see Notes, p. 696.

TRUSTS CREATION AND VALIDITY BEQUEST ON SECRET UNDERSTANDING: LIABILITY OF LEGATEE TO TRANSFER Tax. - The testator bequeathed his personalty to his brother, who had agreed to distribute it in accordance with the testator's wishes as expressed in an unattested memorandum which was not referred to in the will. The memorandum, the contents of which were not communicated to the legatee until the testator's death, directed the money to be given to certain charities. Without having made a full distribution the legatee died, and left the property to the defendant under a similar agreement to distribute in accordance with the memorandum. The state now seeks to tax the defendant under the Inheritance Tax Law. ILL. Rev. Stat., c. 120, $ 306. Held, that the defendant is not taxable. People v. Schaefer, 107 N. E. 617 (Ill.).

When a testator leaves property to a legatee with the informal understanding that he is to hold in trust for certain beneficiaries, it would be a fraud for the legatee to keep for himself, and the courts accordingly raise a constructive trust in favor of the beneficiaries to prevent unjust enrichment. In re Fleetwood, 15 Ch. D. 594; Trustees of Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876; Lawrence v. Oglesby, 178 III. 122, 52 N. E. 945. As it is impossible to restore the statum quo, and enable the testator to do over again properly what he tried to do improperly, the chief argument for imposing a resulting trust when an express trust fails with the settlor living, has no application. See 20 Harv. L. Rev. 549, 554. Where the legatee, however, is ignorant of the names of the cestuis until the testator's death, the English courts, at least, have refused to enforce the trust, saying that it would violate the Wills Act to ascertain the names by an unattested document. In re Boyes, 26 Ch. D. 531. Cf. McCormick v. Grogan, L. R. 4 H. L. 82; Walgrave v. Tebbs, 2 K. & J. 313. But see Gore v. Clarke, 37 S. C. 537, 16 S. E. 614. But even the English courts have not hesitated to examine an unattested document when the question was what part of the property was held in trust. In re Maddock, (1902] 2 Ch. 220. And irrespective of the enforceability of the trust, it would seem that the legatee should at least be permitted to carry out the testator's wishes. In re Dean, 41 Ch. D. 552; see 28 Harv. L. REV. 237, 263. The question remains whether the legatee should be subject to the Illinois inheritance tax, which exempts beneficial interests passing by will or intestacy to charities. ILL. REV. STAT., c. 120, $ 366. The New York court has held in a similar case that it is the constructive trustee to whom the beneficial interest passes by will. In re Edson, 38 App. Div. 19, 56 N. Y. Supp. 409; aff'd 159 N. Y. 568, 54 N. E. 1092. See N. Y. CONSOL. Laws, Tax Law, $$ 220, 221. But the charitable cestuis do take beneficially by virtue of an imperfect right arising before the testator's death, although not strictly under the will, and it seems a preferable construction, therefore, to hold that the property passes to them free of tax.

VENDOR AND PURCHASER — REMEDIES OF PURCHASER — MERGER OF ExECUTORY CONTRACT OF SALE BY ACCEPTANCE OF DEED. A vendor covenanted to convey land by a deed of special warranty, clear of all incumbrances. The purchaser paid over the purchase money and accepted a deed which contained only special warranty and no general covenant against incumbrances. The land having been sold on execution to satisfy an unknown preëxisting incumbrance, the purchaser brings this action to recover back the purchase money. Held, that the purchaser can recover. White v. Murray, 218 Fed. 933 (Dist. Ct., W. D. Pa.).

There is no implied warranty of title in sales of real property. It follows that a vendor selling land is not responsible for the goodness of his title beyond the extent of the covenants in his deed. Clare v. Lamb, L. R. 10 C. P. 334; Union Pacific Ry. Co. v. Barnes, 64 Fed. 80; see MAUPIN, MARKETABLE TITLE, 2 ed., § 267. And by the weight of authority, in the absence of fraud or mistake, even express promises to give good title, whether written or oral, are held to be merged in the final acceptance of a deed, on the principle that the deed is the instrument in which the last agreement of the parties as to the risk of defective title is to be found. Whittemore v. Farrington, 76 N. Y. 452; Bryan v. Swain, 56 Cal. 616; Porter v. Cook, 114 Wis. 60, 89 N. W. 823; Fuson v. Chestnut, 33 Ky. L. Rep. 249, 109 S. W. 1192; see MAUPIN, MARKETABLE TITLE, 2 ed. $$ 181, 269. Some cases, however, are very liberal in admitting extrinsic evidence to determine whether the deed was accepted in discharge of previous agreements as to title. Davis v. Lee, 52 Wash. 330, 100 Pac. 752; Read v. Loftus, 82 Kan. 485, 108 Pac. 850; and cf. Slocum v. Bracy, 55 Minn. 249, 56 N. W. 826. And the Pennsylvania cases, which this decision follows, go still further and hold that promises of good title are collateral in their nature and survive the acceptance of the deed, in so far as they have not been embodied in it. Close v. Zell, 141 Pa. 390, 21 Atl. 770; Lehman v. Paxton, 7 Pa. Super. Ct. 259. This seems an unsupportable departure from a rule long recognized as tending to prevent fraud and uncertainty and seems particularly objectionable when, as in the principal case, the presence of one covenant as to title appears by implication to exclude all others.

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WAR — PRIZE — SHIPOWNER'S RIGHT TO FREIGHT IN TRADE WITH THE ENEMY. The cargo of a British vessel while en route for Germany was seized at the outbreak of the war, and later condemned as prize. Held, that the owners are entitled to freight pro rata itineris completed at the time of seizure. The Juno, 50 L. J. 29 (Adm. Ct.).

Since freight is not due until delivery, a shipowner cannot ordinarily recover his freight if he has failed to deliver the cargo at the port of destination. Osgood v. Groning, 2 Camp. 466; The Mary Riley v. Three Thousand Railroad Ties, 38 Fed. 254. And if the owner of the cargo voluntarily accepts the goods at some other port he will become liable only for the freight pro rata itineris. Luke v. Lyde, 2 Burr. 882. See Osgood v. Groning, supra, 470. However, when a neutral vessel carrying enemy goods is detained and the goods are condemned, the shipowner can recover the full freight to the original port of destination. The Hoop, 1 C. Rob. 196. See Note, 3 C. Rob. 304; CONSOLAT DEL MAR, 3 Twiss, BLACK BOOK OF THE ADMIRALTY, p. 539. This rule seems to be based on the idea that the captor takes the place of the enemy consignee in all respects, and that the capture therefore amounts to delivery. See The Copenhagen, 1 C. Rob. 289, 291. It would also be unjust to deprive the neutral vessel of the freight which she was entitled to earn, since neutral vessels may rightfully engage in commerce with belligerents. But the subjects of belligerent nations lose the right to engage in trade with the enemy immediately on the declaration of war. See 2 WESTLAKE, INTERNATIONAL LAW, 2 ed., pp. 48 ff. When war was declared, therefore, the shipowner in the principal case lost the right to earn freight by the transportation of enemy goods. But until then he seems to be in much the same position as a neutral shipowner, and the rule awarding him freight pro rata itineris seems reasonable and just.



PROPERTY. By Garrard Glenn. Boston: Little, Brown, and Company.

1915. pp. xlvi, 461. This volume contains the substance of a course of lectures delivered at the Columbia Law School. The aim of the lectures and of the book is to collect and harmonize various statutes and doctrines relating to the general subject of the realization of claims by a creditor from the property of his debtor.

This object is a commendable one, and the author has little rivalry in the attempt that he has made. Books on fraudulent conveyances, for instance, say little or nothing about bankruptcy. Even the largest books on bankruptcy have very fragmentary and inadequate treatment of the general subject of

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