ch. 238, 31. Held, that no injunction will be granted. Baxter Tel. Co. v. Cherokee County Mut. Tel. Ass'n, 146 Pac. 324 (Kan.).

Where a public franchise is set up as a defense to primâ facie tortious conduct, its validity may be challenged by the plaintiff, even though a private individual. Smith v. Warden, 86 Mo. 382; Vredenburgh v. Behan, 33 La. Ann. 627. But in the principal case the defendant's act in stringing competing wires was not per se tortious, for the plaintiff's franchise was not exclusive. As the mere usurpation of a public privilege could not without more constitute a private wrong to the plaintiff, the result seems clearly correct. Jersey City Gas Light Co. v. Consumers' Gas Co., 40 N. J. Eq. 427; Coffeyville Gas, etc. Co. v. Citizens' Natural Gas, etc. Co., 55 Kan. 173, 40 Pac. 326. Cf. Cope v. District Fair Ass'n, 99 Ill. 489.

FRAUDULENT CONVEYANCES TRANSFERS FOR VALUE

CONVEYANCE

IN SATISFACTION OF UNENFORCEABLE EXPRESS TRUST. A testator was induced not to change a will leaving property to A, by A's promise to give half the property to B. A later transferred to B land equal in value to half of the property received under the will. This transfer made A insolvent, and his creditors bring this action to have it set aside as fraudulent. Held, that the conveyance will not be set aside. Walter Farrington Tiling Co. v. Hazen, 151 N. Y. Supp. 523 (App. Div.)

A bona fide conveyance by an insolvent debtor in preference of a creditor who has an enforceable legal or equitable claim against him cannot be set aside as in fraud of creditors. WAIT, FRAUDULENT CONVEYANCES, 3 ed. $390; Glover v. Lee, 140 Ill. 102, 29 N. E. 680; Atlantic National Bank v. Tavener, 130 Mass. 407. A mere moral obligation, however, is not sufficient to support such a conveyance. Fair Haven Marble & M. S. Co. v. Owens, 69 Vt. 246, 37 Atl. 749; Cock v. Oakley, 50 Miss. 628. But a conveyance in satisfaction of an unenforceable trust or in settlement of a debt barred by the statute of limitations or the statute of frauds, cannot be attacked by creditors on the ground that the debtor could have set up an unconscionable defense, for the law regards such obligations as subsisting though the remedy is barred. French v. Motley, 63 Me. 326; Silvers v. Potter, 48 N. J. Eq. 539, 22 Atl. 584; Norton v. Mallory, 63 N. Y. 434. See 13 HARV. L. REV. 608. Cf. Holden v. Banes, 140 Pa. 63, 21 Atl. 239. The decision of the principal case is based on this last proposition. In fact, however, it seems that the conveyance was in satisfaction of a perfectly valid equitable obligation; for where a testator is prevented from revoking a gift in his will by the promise of the beneficiary to hold it for another, the beneficiary becomes liable in equity as constructive trustee of the property received. Dowd v. Tucker, 41 Conn. 197; Belknap v. Tillotson, 82 N. J. Eq. 271, 88 Atl. 841. See 28 HARV. L. REV. 237, 379. And if, as the principal case seems to indicate, the estate conveyed represented the proceeds of the bequest, the trust attached to this very property. On this hypothesis, the result of the principal case is more easily reached as property subject to a constructive trust is not subject to the claims of creditors. Cox v. Arnsmann, 76 Ind. 210. See POMEROY, EQ. JUR., 3 ed., §§ 721, n. 1, 1053.

INTERSTATE COMMERCE - INTERSTATE COMMERCE COMMISSION JURISDICTION OF STATE COURT OVER SUIT AGAINST INTERSTATE CARRIER WITHOUT PRIOR ACTION BY THE COMMISSION. - The railroad had established certain rules governing car distribution among coal companies for interstate shipments during periods of car shortage. The plaintiff brings suit in a state court complaining that the railroad failed to furnish the quota which, according to these rules, it should have received. Held, that the state court has jurisdiction. Pennsylvania R. Co. v. Puritan Mining Co., 237 U. S. 121.

Complaints attacking the reasonableness of rates, or the validity of general rules and practices, involve problems of administrative discretion which call imperatively for uniform solution. Over these a single administrative tribunal, the Interstate Commerce Commission, alone has jurisdiction. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Baltimore & Ohio Ry. Co. v. Pitcairn Coal Co., 215 U. S. 481. On the other hand complaint of conduct which contravenes the Interstate Commerce Act as matter of law, and which, therefore, involves no administrative question, may be brought either before the courts or before the Commission. Pennsylvania R. Co. v. International Coal Co., 230 U. S. 184. To this rule the principal case adds a further distinction: that a complaint that an existing rule was violated, rather than that it was unreasonable, need not be brought before the Commission. The further holding that it may be brought before a state court presents another problem. Under Section 9 of the Interstate Commerce Act, damage caused by violation of the Act can be sued upon in the federal courts or before the Commission. 4 U. S. COMP. STAT., 1913, § 8573. By implication the state courts are deprived of jurisdiction. Copp v. Louisville & N. R. Co., 43 La. Ann. 511, 9 So. 441. See Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 250. But Section 22 of the Act saves all remedies existing at common law. 4 U. S. COMP. STAT., 1913, § 8595. In an effort to give meaning to this proviso, the court holds that for violation of a right existing at common law, but merely reaffirmed by the Act, suit may be brought in state courts. Cf. Galveston, etc. Ry. Co. v. Wallace, 223 U. S. 481.

MASTER AND SERVANT ·ASSUMPTION OF RISK PROMISE BY MASTER TO EFFECT SUCH A CHANGE IN THE METHOD OF WORK AS TO MAKE THE EMPLOYEE'S SERVICES UNNECESSARY. The plaintiff was employed by the defendant to carry off waste material. The custom was to throw the waste in sacks from a second-story window into the plaintiff's wagon. The plaintiff objected to this as being a dangerous method of work and the defendant had promised to install a chute which would render the plaintiff's services unnecessary. The plaintiff continued work but was injured before the change was made. Held, that the plaintiff cannot recover. Medlin Milling Co. v. Mims, 173 S. W. 968 (Tex. Civ. App.).

Where a servant continues in employment relying on a promise to repair the defective premises, the defense of assumption of risk is not available. Clarke v. Holmes, 7 H. & N. 937; Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979. Although a distinction was attempted in the principal case, it seems clear that this doctrine applies as well to a promise to install a new method as to one merely to repair a defect. Schlitz v. Pabst Brewing Co., 57 Minn. 303, 59 N. W. 188. See 4 LABATT, MASTER AND SERVANT, 2 ed., p. 3857. Nor should the fact that the employment involves only simple labor with common implements change the result. Brouseau v. Kellogg Switchboard & Supply Co., 158 Mich. 312, 122 N. W. 620; Louisville Hotel Co. v. Kaltenbrun, 26 Ky. L. Rep. 208, 80 S. W. 1163. Contra, Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56; Webster Mfg. Co. v. Nesbitt, 205 Ill. 273, 68 N. E. 936. But the fact that the promised remedy would deprive the servant of his job presents a question of more difficulty. A variety of technical reasons have been more or less unsuccessfully advanced for the effect attributed to the master's promise to repair. See 4 LABATT, MASTER AND SERVANT, 2 ed., pp. 3874 et seq. Such reasons aside, if the only policy underlying it is to enable the servant to retain permanent employment without being at his own risk during the continuation of the promise, then the case is correct, as here the plaintiff must lose his situation anyway. But it is submitted that the principal ground is that of justice to the servant because the master for his own benefit has induced the servant to stay. See Schlitz v. Pabst Brewing Co., supra; Professor

Bohlen in 20 HARV. L. REV. 14, 91-93. The employer should therefore be liable whether or not the servant by doing him the favor hopes to retain his position.

NEGLIGENCE - DUTY OF CARE - ELECTRIC WIRES: DUTY OF ELECTRIC COMPANY TO LICENSEE ON LAND OF THIRD PARTY. — A fireman entering a city hall in the course of his duties in order to extinguish a fire was killed by contact with a pipe which had become charged with electricity through the negligence of the defendant company, which had wired the hall. His administrator now sues. Held, that he may recover. Barnett v. Atlantic City El. Co., 93 Atl. 108 (N. J.).

It is settled that a fireman is a mere licensee. See cases collected in 35 L. R. A. N. s. 60. The decision in the principal case takes the ground that the special exemption by virtue of which the landlord is not required to use ordinary care in regard to the condition of his premises does not shield third parties. Commonwealth Elec. Co. v. Melville, 210 Ill. 70, 70 N. E. 1052; Day v. Consolidated, etc. Co., 136 Mo. App. 274, 117 S. W. 81. This idea has been applied even where the plaintiff may have been a trespasser. Caglione v. Mt. Morris Elec. Lt. Co., 56 N. Y. App. Div. 191, 67 N. Y. Supp. 660; Connell v. Keokuk, etc. Co., 131 Ia. 622, 109 N. W. 177. See also Guinn v. Delaware, etc. Co., 72 N. J. L. 276, 62 Atl. 412. In other jurisdictions the electric company's duty has been held no greater than the landowner's. McCaughna v. Owosso, etc. Co., 129 Mich. 407, 89 N. W. 73. And this view has been applied where the defendant itself was at most a licensee at sufferance. Cumberland, etc. Co. v. Martin's Adm'r, 116 Ky. 554, 76 S. W. 394, 77 S. W. 718. Other states hold the electric company liable to a mere licensee, irrespective of its status, on the theory that electricity is such a dangerous agency that even the landlord would be so liable. Wittleder v. Citizens', etc. Co., 50 N. Y. App. Div. 478, 64 N. Y. Supp. 114. Augusta Ry. Co. v. Andrews, 92 Ga. 706, 19 S. E. 713. Cf. Davoust v. City of Almeda, 149 Cal. 69, 84 Pac. 760. Some courts apply this theory even in favor of technical trespassers. Lynchburg Telephone Co. v. Bokker, 103 Va. 595, 50 S. E. 148; Newark, etc. Co. v. Garden, 23 C. C. A. 649, 78 Fed. 74. Contra, Augusta Ry. Co. v. Andrews, 89 Ga. 653, 16 S. E. 203. Several authorities, on the other hand, take the ground that if the plaintiff touches the defendant's wires he may thereby assume the status of a licensee or a trespasser toward the defendant and as such be denied recovery. New Omaha, etc. Co. v. Anderson, 73 Neb. 49, 102 N. W. 89; Rodger's Adm. v. Union, etc. Co., 123 S. W. 293 (Ky.); City of Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50. Cf. Hector v. Boston Elec. Lt. Co., 161 Mass. 558, 37 N. E. 773. But on the whole the result in the principal case seems fair, in spite of the argument that the landowner's exemption should extend to anyone who works on his premises for his benefit.

POLICE POWER NATURE AND EXTENT STATUTE REGULATING THE PRIVATE USE OF INTOXICANTS. The defendant was convicted under a Kentucky statute making it a crime to keep liquor elsewhere than in the owner's private residence. Held, that the statute is unconstitutional. Commonwealth v. Smith, 173 S. W. 340 (Ky. Ct. App.).

Kentucky had previously held unconstitutional a similar inhibition applying to private residences. Commonwealth v. Campbell, 133 Ky. 50, 117 S. W. 383. So this decision has at least the merit of consistency. In so far as these cases rest upon limitations upon legislative power in the state constitution, the conclusion cannot profitably be criticised. But the court also took the broad ground that regulation of private use of intoxicants is outside the police power. This view has support. Ex parte Brown, 38 Tex. Cr. 295, 42 S. W. 554; State v. Gilman, 33 W. Va. 146, 10 S. E. 283; State v. Williams, 146 N. C. 618, 61 S. E. 61; Eidge v. Bessemer, 164 Ala. 599, 51 So. 246. Other cases apparently

in accord involve simply the legislative power of municipal corporations. Henderson v. Heyward, 109 Ga. 373, 34 S. E. 590; Sullivan v. Oneide, 61 Ill. 242. But there are contrary adjudications. Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096; Easley v. Pegg, 63 S. C. 98, 41 S. E. 18. See Mugler v. Kansas 123 U. S. 623, 660. The court theorizes that the police power can be exercised only on behalf of the public, while this statute concerned individual conduct. Yet at common law suicide and self-mayhem were crimes. Rex v. Russell, 1 Moody C. C. 356; Wright's Case, Co. Lit. 127a. See I BISHOP, CRIMINAL LAW, 8 ed., §§ 259, 511. This statute should be upheld unless judicial eyes can clearly see it has no reasonable bearing on the public health, morals, peace, or welfare. See Mugler v. Kansas, supra; Powell v. Pennsylvania, 127 U. S. 678; Holden v. Hardy, 169 U. S. 366. If the statute be overthrown, one who has satiated his protected right privately to renounce sobriety might forthwith tire of seclusion, and burst forth a public menace. Furthermore, the "public" is but a composite of individuals, who should not be entitled singly to jeopardize their own health and increase the possibility of their becoming public charges. The principal case would seem to recognize a constitutional guaranty to the individual not to be deprived of life, liberty, or liquor.

POLICE POWER REGULATION OF BUSINESS AND OCCUPATIONS - PROHIBITION OF NIGHT WORK BY WOMEN IN FACTORIES. - The defendant was convicted under a New York statute (CONS. LAWS, c. 31, as amended by LAWS 1913, c. 83) which provided that "no woman shall be employed or permitted to work in any factory in this state before six o'clock in the morning or after ten o'clock in the evening of any day." Held, that the statute is constitutional. People v. Charles Schweinler Press, 53 N. Y. L. J. 81 (N. Y. Ct. of App.).

For a discussion of the significance of this decision as marking the present attitude of the courts in approaching questions of "due process,' see NOTES,

p. 790.

POLICE POWER-REGULATION OF TRADE, PROFESSIONS, AND BUSINESS PROTECTION OF THE ECONOMIC WELFARE OF A STATE. A Florida statute prohibited the shipment of fruit that was "unripe or otherwise unfit for consumption." The petitioner, who had been arrested for attempting to ship unripe oranges from Florida to Alabama, sought a writ of habeas corpus on the ground that the statute, so far as it applied to interstate shipments, was an invalid exercise of police power by the state. Held, that the statute is constitutional. Sligh v. Kirkwood, 237 U. S. 52.

To reach the unique point of this case it must be premised that the statute in question presents no conflict with federal jurisdiction over interstate commerce. There appears to be no enactment of Congress that deals with the situation, for the Food and Drugs Act applies only to decomposed fruit. U. S. COMP. STAT., 1913, § 8723. And there can be little doubt that since Congress has taken no affirmative action, the restriction placed upon interstate commerce is of the incidental sort which is not objectionable. Hennington v. Georgia, 163 U. S. 299; Minnesota Rate Cases, 230 U. S. 352, 402. Since the shipment involved was designed for the citizens of other states, the statute could not be upheld as a health measure, but had to be rested upon the novel principle that the state may prevent the shipment of unripe fruit because such sales injure the reputation of the state in an industry which is vitally related to its entire economic welfare. There is room for difference of opinion as to the probability of injury of this sort, but the legislature could not be deemed unreasonable in thinking that undiscriminating buyers in the outside markets would associate the injurious quality of the fruit with the fact that they came from Florida. It

may also be questioned whether the police power should be exerted to promote the material prosperity of the public, but there can be no doubt that the principle has made a substantial beginning in American law. See Missouri, Kansas & Texas Ry. Co. v. May, 194 U. S. 267; Eubank v. City of Richmond, 226 U. S. 137. The result of the principal case is closely analogous to a previous decision which upheld prohibiting the owner of a gas or oil well from allowing waste which tended to exhaust the underground reservoir that was common to the entire community. Ohio Oil Company v. Indiana, 177 U. S. 190. And the damage to other citrus producers in the state is of the same sort which results from unfair competition or monopoly, the statutory revention of which has never been thought invalid. See Pearsall v. Great Northern Railway Company, 161 U. S. 646. In the principal case an act is in question which is inimical to the financial welfare of the whole state, and there seems to be no reason why the legislature should be powerless to prevent it merely because the channel of causation passes at one point outside of the jurisdiction.

PRESUMPTIONS - EXISTENCE AND EFFECT OF PRESUMPTIONS IN PARTICULAR CASES NO PRESUMPTION ON A PRESUMPTION. – The body of the deceased was found on the defendant's track five hundred feet below a crossing. A foot severed from the body was found caught in a frog at an intermediate point. To charge the railroad with the violation of a duty, it was necessary to prove that the deceased was struck at the crossing. The facts relied on were that footprints were found there and that marks such as might have been made by a body dragged by a train extended from the crossing to the point where the body was found. The jury was asked to infer that the footprints were those of the deceased, that he was struck at the crossing, carried along until his foot caught in the frog, and then killed. The plaintiff obtained a verdict. Held, that the verdict must be set aside. Atchison, T. & S. F. Ry. Co. v. De Sedillo, 219 Fed. 686 (C. C. A., 8th Circ.).

See NOTES, p. 795, for a discussion of the maxim "No presumption upon a presumption," upon which the result in this case was based.

RULE AGAINST PERPETUITIES - ANNUAL GIFTS OF INCOME SUBJECT TO VARIATION IN AMOUNT BY EXTRANEOUS CIRCUMSTANCES. Under a power in her marriage settlement, the wife appointed the fund by will to trustees to hold till her insane son died or became sane. Each year the trustees were to pay him a sum sufficient to bring his income from all sources up to £200 a year, the residue, if any, to be distributed among other sons. Held, that the trust is altogether void. In re Whiteford, [1915] 1 Ch. 347.

The court bases its decision on the fact that the gift to the son is not vested, and consequently calls the whole too remote. Had it allowed the payment for any one year, however, the son's right to that year's income would vest, and that vesting would not affect the contingent character of the gift in future years. If that year the son should receive a large legacy bringing in a £200 income, none of the gift would vest in him that year, and yet that would not prevent payments in future years should his legacy be dissipated. It is submitted that this should not be considered as one gift, but rather as a series of yearly gifts, all contingent. On this analysis the court erred in not allowing payments to the son for twenty-one years after the mother's death. While the problem would seem res integra, an analogy is afforded by the cases where there is a series of gifts to the person who shall fill a certain description each year. One case has called such a gift bad in toto. Siedler v. Syms, 56 N. J. Eq. 275, 38 Atl. 424. Professor Gray criticised this, and his view has been followed in a case that holds the gifts good for twenty-one years. Lyons v. Bradley, 168 Ala. 505, 53 So. 244. See GRAy, Rule AgainST PERPETUITIES, 3 ed., § 410 are.