The defendants, who ap-
Held, that equity is with-

defendants on his land in a foreign jurisdiction. peared, denied the plaintiff's title in the locus in quo. out power to grant relief. Columbia Nat'l, etc., Co. v. Morton, 34 Wash. L. Rep. 766 (D. Č., Ct. App., Nov. 7, 1906).

The position here taken, though supported by some authority, is unsound. For a criticism of a case presenting similar facts, see 15 HARV. L. Rev. 579.

ILLEGAL CONTRACTS-EFFECT OF ILLEGALITY - WHETHER ILLEGALITY BARS RECOVERY FOR FRAUD. — Confederates of the defendants induced the plaintiff to bet upon a foot-race by telling him that it was prearranged that a certain contestant should win. The other won, as the defendants had in fact arranged. The defendants lent to this scheme the use of their bank and credit, and thus lulled the plaintiff into a sense of security. Held, that the plaintiff is not barred by his own illegal conduct. Sanborn, J., dissented. Stewart v. Wright, 147 Fed. Rep. 321 (C. C. A., Eighth Circ.).

For a discussion unfavorable to the result reached in this case, see 20 HARV. L. REV. 60.

INSANE PERSONS LIABILITY IN TORT - RESPONSIBILITY FOR DEFECTIVE CONDITION OF REAL PROPERTY. - From a building which belonged to a lunatic a portion of the floor had been removed and the opening left unguarded. The plaintiff, apparently an invited person, fell through the hole, and was injured. She sued the lunatic and his committee. The defendants demurred to the complaint. Held, that the demurrer be sustained. Ward v. Rogers, 51 N. Y. Misc. 299.

Where the law fixes an absolute liability on the owner of property for damage suffered by others through that property, it is proper that an insane owner should bear the same burden as a sane one. On the other hand, if responsibility for a certain tort can be fixed on a particular person only because of some fault, it would seem that the responsibility of an insane actor should depend on whether or not he was, as to those acts, a blamable person. CLERK AND LIND.. TORTS, 4 ed., 48. The cases recognize that an occupier of land is not an insurer of its safety as to invited persons, but only owes a duty of reasonable care to prevent damage from unusual danger. Larkin v. O'Neill, 119 N. Y. 221. In the principal case it is a fair inference that the defendant's insanity precluded any possibility of his having been personally blameworthy. Further, he was not liable on principles of agency, for his committee was not in control of the property as his agent, but as an officer of the court. Kent v. West, 33 N. Y. App. Div. 112. The decision of the court is therefore sound, but in principle seems inconsistent with the doctrine previously enunciated by the New York Appellate Division. McCabe v. OConnor, 4 Ñ. Y. App. Div. 354. Cf. Williams v. Hays, 143 N. Y. 442.

INTERSTATE COMMERCE-CONTROL BY STATES - ATTACHMENT OF ROLLING STOCK OF NON-RESIDENT CARRIER AND GARNISHMENT OF CONNECTING CARRIERS FOR FREight ColleCTIONS. The plaintiff brought suit in Iowa for a tort committed in Illinois by an Ohio corporation having no agent in Iowa. He attached some of the defendant's freight cars that were in Iowa in the possession of other railways, which had received them at a point outside the state and which were, by agreement, either forwarding them to the consignees of the freight or returning them empty to the defendant. Also, these other railways, foreign corporations having agents in Iowa, were garnisheed for freight collections which they might owe the defendant. An Act of Congress authorized railways to arrange for continuous carriage. Held, that the attachment and garnishment are regulations of interstate commerce not within the power of a state. Davis v Cleveland, etc., Ry. Co., 146 Fed. Rep. 403 (Circ. Ct., N. D. la., W. D.). See NOTES, p. 319.

INTERSTATE COMMERCE-CONTROL BY STATES - Right to Stop ThROUGH TRAINS. The Mississippi legislature established a railroad commission with discretionary power to cause all trains to stop at county-seats and at other places where business or public convenience should require. The commission

required two through trains, carrying mails from Chicago to New Orleans under special contract with the United States government, to stop at a county-seat already adequately provided with train service. Held, that this is an improper interference with interstate commerce. Miss. Ry. Commission v. Ill. Central

Ry., U. S. Sup. Ct., Dec. 3, 1906.

For a discussion of the principles involved, see 10 HARV. L. Rev. 378.

OF

INTERSTATE COMMERCE INTOXICATING LIQUORS DEFINITION "ARRIVAL" IN WILSON ACT. - The Wilson Act of 1890 provided that liquors transported into a state should, upon arrival in the state, become subject to the police law thereof. Acting under such state law, officers seized liquor in a railway warehouse before notice had been sent to the consignee or before a reasonable time for removal had elapsed. Held, that the seizure is unlawful, since the liquors have not "arrived" within the meaning of the Wilson Act. Heymann v. Southern Ry. Co., U. S. Sup. Ct., Dec. 3, 1906.

It has been held that liquors have not "arrived in the state" within the meaning of the Act, and therefore remain articles of interstate commerce, when they have just been unloaded on the station platform at their destination. Rhodes v. Iowa, 170 U. S. 412. The present case further decides that even after removal to the railway warehouse they have not "arrived." Both cases suggest that the goods would have “arrived" after delivery to the consignee or storage for him, though they were still in the original packages. This interpretation twists the literal meaning of the word in order to follow the general tenor of the Act and the intention of Congress presumed from the occasion of its enactment. See Rhodes v. Iowa, supra. There is further reason for this interpretation under the theory that the federal commerce power is exclusive of that of the states; for if the Act were construed to give control of interstate liquor shipments before delivery, with the consequent direct effect on the shipping contracts, it would not merely mark the time at which imported goods should come under state laws, but would more plainly allow states to regulate interstate commerce. See American Express Co. v. Iowa, 196 U. S. 133.

LEGACIES AND DEVISES - CONSTRUCTION DIRECTION TO PURCHASE ANNUITY AS CREATING VESTED LEGACY. A testator devised his residuary estate to trustees upon trust to purchase in the name of the testator's wife a government annuity of a certain value. The wife survived the testator, but died before the will had been proved without having made any election to take the value of the annuity in cash. The administrators of the widow's estate claimed the sum which, at the testator's death, would have purchased such an annuity. Held, that they are entitled to it. In re Robbins, [1906] 2 Ch 648.

Since the beneficiary of such a provision could immediately resell the annuity, the English courts do not compel the trustee to purchase it if the beneficiary elects to take the value directly. Ford v. Batley, 17 Beav. 303. This procedure may sometimes avoid a useless diminution in the sum realized by the beneficiary, but the advisability of discharging a trust in a way so obviously adapted to defeat the object of the settlor is doubtful. It is but a short step to say that since the annuitant has this right of election, there is in effect a legacy the right in which vests at once on the testator's death. Bayley v. Bishop, 9 Ves. Jr. 6. Such is the construction in the present case. The English courts have refused, however, to apply this principle where the testator had provided for limitations over in case the beneficiary should assign. Power v. Hayne, L. R. 8 Eq. 262. Since the necessary consequence of the application of this doctrine is to transfer a fund to persons for whom the testator never intended to provide, it seems a proper place to hold rather that the trust has failed. LIENS Priorities - Conflicting CLAIMS. — An agreement by the tenant to mortgage his crop was inserted in a contract to lease certain land, and A, the lessor, failed to record the instrument. B later obtained a mortgage on the same crop, by its terms subject to A's claim, and recorded it. Subsequently C, ignorant of A's rights, became the tenant's creditor and secured an attachment lien against his crop. A statute provided that instruments creating legal or

equitable interests must be recorded in order to give rights superior to those of creditors. Suit was brought in equity to determine the priority of the claims of the respective parties. Held, that C should be preferred first, and A second. Bowles' Exec. v. Jones, 96 S. W. Rep. 1121 (Ky.).

Since B's mortgage was by its terms subject to A's equitable claim, as between the two the fact that A failed to record the instrument under which he claimed could make no difference. Howard v. Chase, 104 Mass. 249. As between B and C, B's rights were superior because his mortgage was recorded before C became a creditor. See 7 HARV. L. REV. 241. If Č had no notice actual or constructive of A's unrecorded lien, he should be preferred before A. Wicks v. McConnell, 102 Ky. 434. Even if this were the case it would be difficult to find a ground for preferring C's claim to B's, for it can hardly be maintained that B was guilty of misconduct. Hoag v. Sayre, 33 N. J. Eq. 552. It has been stated that subsequently acquired liens subject to a second mortgage which was by its terms subject to a first mortgage must necessarily be subject to the first. See Bundy v. Iron Co., 38 Oh. St. 300, 312. This line of reasoning applies here. The filing of B's mortgage should be held to be constructive notice of A's claim, to which it specifically refers, and the order of preference should be, first A, then B, and last C.

LIMITATION OF ACTIONS - NEW PROMISE AND PART PAYMENT - EFFECT WHEN MADE By One of Joint Obligors. A statute provided that the real estate of a deceased debtor should be assets for the payment of his debts. A testator devised to his son a part of his real estate which was encumbered with a mortgage debt. The devisee paid interest on the debt for thirty years. Then the mortgagee secured judgment against the testator's executor. The residue of the testator's land had been sold under the terms of a trust imposed by the will, and the judgment creditor claimed the fund in the hands of the trustee as assets of the estate. The beneficiaries of the trust were permitted to plead the Statute of Limitations. Held, that part payment by the devisee of the mortgaged property does not keep the debt alive as to property not in the first instance charged with it. In re Lacey, 41 L. Jour. 754 (Eng., Ch. D., Nov. 15, 1906).

For comment on an opposite decision by the same court, see 19 HARV. L. REV. 57.

MUNICIPAL CORPORATIONS OFFICERS AND AGENTS-EFFECT OF REELECTION AFTER OUSTER. - The defendant, the mayor of Kansas City, had been guilty of official misconduct. In quo warranto proceedings judgment of ouster was rendered against him, expressly excluding him from his office for the remainder of his term. During the forbidden period he was again elected mayor, and assumed to exercise the powers of the office. Held, that he may be punished for contempt. State v. Rose, 86 Pac. Rep. 296 (Kan.). See NOTES, p. 316.

NEGLIGENCE-DUTY OF CARE TRESPASSING CHILDREN ON HIGHWAY. The defendant's employees were stringing cable on the highway by a rope passed through a pulley and attached to a team of horses. The employees several times chased children away from the machinery. While the rope was still, the plaintiff, a child of seven years, took hold of it near the pulley. The employees started the team, and the plaintiff's hands were crushed. Held, that the judgment for the plaintiff be affirmed. Two judges dissented. O'Leary v. Michigan State Telephone Co., 109 N. W. Rep. 434 (Mich.).

The law in this sort of case is in a confused, unsatisfactory condition. There appears, however, in recent cases a wholesome tendency to decide these questions from the standpoint of public policy. See 11 HARV. L. Rev. 349, 360; 12 ibid. 206. In the case at hand, both parties were where they had equal rights to be, as distinguished from the turntable cases. The defendant's knowledge of the proximity and the inclinations of the children warned it that danger to them was imminent rather than merely possible. Thirdly, not the plaintiff's trespass, but the defendant's act brought the force into play. This leaves us

to balance harm to trespassing children against a restraint on the beneficial uses of machinery in that the owner should exercise due care while operating it on highways when he can reasonably anticipate that children are in perilous situations. So from the standpoint of public policy the decision seems correct. Although a search of the authorities reveals only distinguishable states of fact, the reasoning in somewhat similar cases where the defendant was held liable supports the one at hand. Powers v. Harlow, 53 Mich. 507; Lynch v. Nurdin, IQ. B. 29. And in those contra the reasoning does not always oppose it. Bishop v. Union Ry. Co., 14 R. I. 314; but see Mangan v. Atterton, L. R. I Exch. 239.

NUISANCE RECOVERY OF DAMAGES - RECOVERY BY LESSEE OF PREMISES RENDERED UNINHABITABLE. - The defendant so negligently conducted building operations on a lot adjoining a dwelling-house occupied by the plaintiff under a lease, that the latter premises were rendered uninhabitable. Held, that as items of damage the plaintiff may recover, (1) the cost of storing his furniture until the expiration of his lease, (2) the difference in living expenses after removing from the house, (3) for the loss of comfort suffered by the plaintiff and his family in consequence of the defendant's negligent acts. One justice dissented. McFadden v. Thompson-Starrett Co., 36 N. Y. L. J. 871 (N. Y., Sup. Ct., Dec., 1906).

It seems generally settled that upon a wrongful eviction by the landlord, a tenant's recovery is limited to the difference between the value of the lease and the rent reserved. Trull v. Granger, 8 N. Y. 115. So, though the eviction may result in loss of profits, the tenant is not allowed compensation therefor. Dennison v. Ford, 10 Daly (N. Y.) 412. One case finds justification for this doctrine in the analogy between a leasehold and a personal chattel, the theory being that since the owner of a chattel is not allowed compensation for possible profits from its use, the tenant whose lease is destroyed should be similarly

limited in his recovery. See Dennison v. Ford, supra. But a leasehold, whether used as a dwelling-place or a place of business, is sufficiently differentiated from a personal chattel to justify a different rule. Shaw v. Hoffman, 25 Mich. 162. In considering the tenant's damage it seems immaterial, aside from his liability for rent, whether he be evicted by his landlord or by an independent wrongdoer. Thus there is force in the contention of the dissenting judge that the measure of damages should be the same in both cases. The present decision, however, seems right in result, and to indicate an error in the rule applied in the constructive eviction cases. See Shaw v. Hoffman, supra. Cf. 19 HARV. L. REV. 50.

POLICE POWER - RegulaTION OF PROPERTY and Use Thereof - SALE OF PATENT RIGHT. A Kansas statute required the filing of copies of letters patent before a sale of the patent rights. It was contended that the statute violated the constitutional right of Congress to grant patents and the federal laws giving free rights to sell them. An Arkansas statute made a note given in payment for a patent right void if it did not show on its face for what it was given. Held, that both statutes are valid as reasonable exercises of the states' police power. Allen and Allen, Adm. v. Riley; Woods and Sons v. Carl, U. S. Sup. Ct., Dec. 3, 1906.

The use of articles made under letters patent is subject to the same control by the state as other articles of the same nature. Patterson v. Kentucky, 97 Ú. S. 501. But the intangible property arising from a patent right has been distinguished. See Castle v. Hutchinson, 25 Fed. Rep. 394. And the validity of statutes regulating the sale of such rights has been denied. Hollida & Ball v. Hunt, 70 Ill. 109; Pegram v. American Alkali Co., 122 Fed. Rep. 1000. But the better view seems to be that such regulation is within the police power of the state. Brechbill v. Randall, 102 Ind. 528; State v. Cook, 107 Tenn. 499. The present decisions are the first on the subject by the Supreme Court. The reasoning of the court is that patent rights form a peculiar class, in the sale of which fraud is easily accomplished, and that regulation of such sales by the state to protect its citizens from frauds does not interfere with any federal

legislation. Neither the filing of papers nor the statement of the consideration on the face of notes given for the sale interferes with the exclusive right of the patentee or his assigns to sell. And it is only this right to exclude others which has been given by Congress. See In re Brosnahan, 18 Fed. Rep. 62.

PROHIBITION NOT MAINTAINABLE WHERE ANOTHER REMEDY EXISTS.The relator was served with a subpoena entirely insufficient in substance under circumstances such as to warrant the conclusion that the information was laid before the magistrate simply to serve private ends. To resist the subpoena, for disobedience of which both a fine and imprisonment were prescribed, the relator brought a writ of prohibition. Held, that although the subpoena is void, a writ of prohibition will not be granted, since the relator has an adequate remedy through a writ of habeas corpus. Two judges dissented. People ex rel. Livingston v. Wyatt, Justice, 36 N. Y. L. J. 829 (N. Y., Ct. App., Nov. 20, 1906).

Although an inferior court has acted in relation to a matter within its jurisdiction, a writ of prohibition may nevertheless issue in case of the use of an unauthorized power. Appo v. The People, 20 N. Y. 531; In re Holmes, [1895] IQ. B. 174. But it is a fundamental principle that where there is adequate relief in another form this extraordinary remedy cannot be invoked. Ex parte Braudlacht, 2 Hill (N. Y.) 367. It has been said that until the party aggrieved has applied in vain to the inferior tribunal for relief there can be no recourse to prohibition. See HIGH, EXTRAOR. REM., § 765. This seems to be true, however, only in case an appeal would lie from the lower court's decision, and there was no provision for such an appeal in the present case. The argument of the court that habeas corpus would afford adequate relief seems scarcely satisfactory. No escape is left the relator from being adjudged in contempt of court, subject to a fine and at least temporary arrest. Such a result conflicts, too, with the sounder, though somewhat extreme, view that other remedies which will preclude one from relief by prohibition must be equally effective and reasonably prompt and efficient. See State v. Elkin, 130 Mo. 90, 109.

RAILROADS - POWER TO LEASE LIABILITY OF LESSOR FOR NEGLIGENCE OF Lessee. Under statutory authority the defendant company had leased its line to a company which thereafter exercised complete supervision and control. The plaintiff was injured by the negligence of the servants of the lessee company and attempted to recover against the lessor company. Held, that the defendant, having leased its property by authority of statute, is not responsible for the negligence of the lessee company. One justice dissented. Moorshead v. United Rys. Co., 96 S. W. Rep. 261 (Mo., St. Louis Ct. App.). There is a sharp conflict on the point here involved. Some courts maintain that even though a railroad lease have legislative sanction, the lessor company nevertheless remains liable for the lessee's negligence. This view is based upon the impolicy of permitting a corporation originally clothed with public franchises to cast the attendant liabilities upon other corporations of, perhaps, doubtful responsibility. Chollette v. Omaha & R. V. Rd. Co., 26 Neb. 159. These courts have gone so far as to hold the lessor liable to employees of the lessee injured by the latter's negligence. C. & G. T. Ry. Co. v. Hart, 209 III. 414; contra, Va. Midland Ry. Co. v. Washington, 86 Va. 629. Other jurisdictions hold that statutory authorization of the lease carries with it, by necessary implication, exemption of the lessor from continuing liability, the contention being that liability for negligent operation is inseparable from the power of controlling operation. Pinkerton v. Traction Co., 193 Pa. St. 229. The present well-considered decision seems to be in accord with the better reasoning, and with the slight weight of authority. Distinctions in these cases are properly drawn between liability for injuries due to negligent operation and those due to defective original construction. St. L., W. & W. Ry. Co. v. Curl, 28 Kan. 622. Distinctions are also drawn, though with less propriety, between duties imposed by charter or statute and duties imposed by common law. Arrowsmith v. Nashville & D. R. Co., 57 Fed. Rep. 165.