66

governed by the particular recitals, so that demands not mentioned stand undischarged. Todd v. Mitchell, 168 Ill. 199. The principal case, though construing "the injuries sustained" as the injuries enumerated," goes upon this broader ground. Some courts except from the discharge only entire causes of action and allow no splitting up of any one suit. Quebe v. Gulf, etc., Ry. Co., 81 S. W. Rep. 20. Others, with the decision at hand, allow subsequent recovery for injuries forming part of the same cause of action with those enumerated. Union Pacific Ry. Co. v. Artist, 60 Fed. Rep. 365. The strict construction is severe upon the releaser, but on the whole seems much safer in practice.

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STARE DECISIS OVERRULED DECISION INTERFERENCE WITH LIGHT AND AIR BY ELEVATED RAILROADS. - After the New York Court of Appeals had decided that damage to easements of light and air pertaining to premises adjoining a highway constituted a "taking of property," the plaintiff bought land in New York City and erected a building thereon. Later the defendant began operating an elevated railroad in front of the plaintiff's premises. A decree was entered enjoining the use of this railroad unless damages were paid. From an adverse decision of the Court of Appeals dissolving the injunction, this appeal was brought. Held, that the plaintiff has a vested interest which cannot be impaired without compensation. Fuller, C. J., White, Peckham, and Holmes, JJ., dissented. Muhlker v. New York, etc., R. R. Co., 197 U. S. 544.

The court based its decision on the ground that when the plaintiff acquired title the law of New York assured him that his easements were protected. Lahr v. Met. El. R. R. Co., 104 N. Y. 268. The dissenting opinion, however, points out that it is questionable whether the plaintiff's property rights were infringed, as his easement of access was not interfered with. If, as seems likely, the New York court might originally have decided the question either way without encountering constitutional objection, there is force in the dissenting argument that it can now distinguish the plaintiff's case so as to limit the earlier doctrine. If, however, the case falls within the principle of Lahr v. Met. El. R. R. Co., the decision is perfectly sound. The Supreme Court has already held that it will follow a state decision in reliance on which persons have made commercial contracts, though such decision has been subsequently overruled. Gelpcke v. Dubuque, 1 Wall. (U. S.) 175. The court hereby makes an important extension of this doctrine of stare decisis to rights of easements acquired under judicial decisions which have thereafter been adversely passed upon. See 15 HARV. L. REV. 667.

TAXATION PROPERTY SUBJECT TO TAXATION TRADE-MARK OF A FOREIGN CORPORATION. - A New Jersey corporation, in carrying on its business in New York, used a valuable trade-mark, which was taxed there as a part of its capital stock. The corporation objected on the ground that the trademark, being intangible, existed only at its domicile in New Jersey. Held, that the assessment is correct. People ex rel. Spencerian Pen Co. v. Kelsey, 93 N. Y. Supp. 971.

It is settled that intangible as well as tangible property is subject to taxation. Carroll v. Perry, 4 McLean (U. S.) 25. The difficulty is in assigning the property to some situs. The practical method and the tendency of the law are to tax intangible property at the place where it is used in connection with tangible property. Adams Express Co. v. Ohio State Auditor, 166 U. S. 185. See 17 HARV. L. REV. 248. Thus, the prevailing view is that good-will is taxable within the state where it is exercised. People ex rel. Journey, etc., Co. v. Roberts, 37 N. Y. App. Div. I. On the other hand, this same case holds that copyrights and patents, granted by the United States, are not subject to state taxation. Should the Federal Government, through its power over interstate commerce, assume a stricter control over trade-marks, it might well be urged that they should be classed with copyrights and patents. See AM. BAR ASs. REP., 1904, 547. As at present considered, however, a trade-mark is merely an element in a firm's good-will. The court, therefore, seems warranted in

extending the generally accepted doctrine of taxing good-will to the taxation of trade-marks in the state where they are used.

TORTS INTERFERENCE WITH BUSINESS - INDUCING BREACH OF CONTRACT. The executive council of the appellant union, which the members had asked for advice, ordered a holiday in order indirectly to raise the wages of members, but without ill-will toward their employers, the appellees. In consequence, the employees left work, in violation of their contracts. Held, that the union is liable for the resulting damage. South Wales Miners' Federation v. Glamorgan Coal Co., [1905] A. C. 239.

This decision is an affirmation by the House of Lords of the decision in the Court of Appeal, which was favorably commented upon in 17 HARV. L. REV. 63.

IN

TROVER AND CONVERSION WHAT CONSTITUTES CONVERSION NOCENT HOLDER OF CONVERTED MONEY. The maker of a note took it up with stolen money at a local bank, and the amount, but not the identical funds, was forwarded to a distant bank, where the payee had deposited the note for collection. Held, that the payee has converted the money. Porter v. Roseman,

74 N. E. Rep. 1105 (Ind., Sup. Ct.). See NOTES, p. 55.

TRUSTS LIABILITIES OF THIRD PARTIES - DEPOSIT TO HIS PERSONAL ACCOUNT OF CHECK MADE PAYABLE TO TRUSTEE. An embezzling trustee deposited to his personal account in the defendant bank a check payable to him as trustee. Held, that the bank was not thereby put on inquiry, so as to render it liable for the embezzled moneys. Batchelder v. Central National Bank, 188 Mass. 25.

No court, certainly, could hold that, before cashing a check payable to a trustee, a bank must satisfy itself that the trustee will deal legitimately with the proceeds. See National Bank v. Insurance Co., 104 U. S. 54, 63. But it does not follow that the bank may safely credit the check to the trustee's personal account. In the first case the proceeds may be used either in cash disbursements for the benefit of the trust estate, or to satisfy a debt of the estate to the trustee. In the second case, the former alternative is pretty conclusively negatived. Nevertheless, the chances, in such a case, that the trustee is acting dishonestly are hardly great enough to warrant a rule of law that would so seriously interfere with the freedom of the commonest form of banking transactions. The court, therefore, seems justified in not assimilating the case to the rule in regard to the sale of promissory notes payable to, or the pledge of stock standing in the name of, trustees. See Third National Bank v. Lange, 51 Md. 138; Shaw v. Spencer, 100 Mass. 382. Cf. Ashton v. Atlantic Bank, 85 Mass.

217.

WILLS MISTAKE CONCLUSIVENESS OF RECITAL IN WILL AS ΤΟ AMOUNT OF Advances. — A testator, after reciting in his will that a son owed him £5000, forgave him all but £3000, and directed that the portion of this amount remaining unpaid at his death should be deducted from the son's share. In fact only £80 had been advanced, and nothing repaid. Held, that only £80 can be deducted. In re Kelsey, 49 Sol. Jour. 701 (Eng., Ch. D., Aug. 2, 1905). This decision raises a question upon which the authorities are in conflict. One line of cases, following the general rule that a duly executed will cannot be modified because of mistake, hold that the recital in the will of the amount of advances removes the necessity of resorting to extrinsic evidence and is conclusive. In re Wood, 32 Ch. D. 517; McAlister v. Butterfield, 31 Ind. 25. The opposing cases lay stress upon the general purpose of the will to divide the estate equally among the heirs and, disregarding the recital of the amount as repugnant to such purpose, admit evidence to show what has actually been advanced. In re Taylor's Estate, 22 Ch. D. 495. Although the latter view more nearly approaches the real intention of the testator, yet it would seem unsupportable on principle. As the will is clear upon its face in explicitly stating the amount of the advance, it is difficult to see on what grounds evidence can be admitted to prove the mistake. Cf. Guardhouse v. Blackburn, L. R. I P. & D. 109.

A

WILLS REVOCATION DIVORCE OF BENEFICIARY FROM TESTATOR. testator bequeathed a legacy to his wife describing her as such. After the execution of the will, but two years before the testator's death, the wife procured a decree of absolute divorce from him. Held, that the will is not impliedly revoked by the change of circumstances. Mitchell, C. J., dissented. In re Jones' Estate, 60 Atl. Rep. 915 (Pa.).

The English and American courts hold that a will is revoked by the subsequent marriage of the testator and the birth of issue, and that the revocation cannot be prevented by proof of extrinsic circumstances negativing the existence of the intention to revoke. Marston v. Roe, 8 Ad. & E. 14; Nutt v. Norton, 142 Mass. 242. Several American decisions have refused to imply a similar revocation from the fact of divorce. Charlton v. Miller, 27 Oh. St. 298; Card v. Alexander, 48 Conn. 492. The opposite result was reached in a Michigan decision, where, however, the court relied somewhat on the fact of a settlement made by the parties subsequently to the decree of divorce. Lansing v. Haynes, 95 Mich. 16. To permit evidence of circumstances occurring after the divorce to determine the validity of the will would not harmonize with the previously stated doctrine of implied revocation by marriage. Moreover, neither the inference of a change of intention nor the grounds of public policy are sufficiently clear to warrant the introduction of a doctrine of implied revocation as a matter of law from the fact of divorce.

BOOKS AND PERIODICALS.

I. LEADING LEGAL ARTICLES.

CONSTITUTIOnality of GENERAL Arbitration Treaties. In an article under this title Mr. Everett P. Wheeler makes a report in behalf of a committee of the American Bar Association, sustaining the constitutionality of general arbitration treaties. The Constitutionality of General Arbitration Treaties, 17 Green Bag 533 (Sept. 1905). Since the article contains little more than a mere statement of a general conclusion, it is of value chiefly because of the source whence it comes. The Hague Treaty of 1899 left the matter of arbitration entirely optional with the Powers, though a permanent court of arbitration was established. See FOSTER, ARBITRATION AND THE HAGUE COURT 42. Accordingly, in 1904, the President negotiated treaties with several of the Powers, whereby the contracting parties bound themselves to submit questions of a certain nature to the permanent court established at the Hague, in cases which might prove impossible of settlement by ordinary diplomatic methods. In the second article of each of these treaties it was provided, in accordance with Article XXXI. of the Hague Treaty, that, "in each individual case the high contracting parties, before appealing to the permanent court of arbitration, shall conclude a special agreement defining clearly the matter in dispute and the scope of the powers of the arbitrators, and fixing the periods for the formation of the arbitral tribunal and the several stages of the procedure." MOORE, TREATIES AND EXECUTIVE Agreements, 20 Pol. Sci. Quar. 385. For the word agreement in the instruments, however, the Senate substituted the word treaty. The incident closed with the President's refusal to acquiesce in this amendment. Whether the Executive has the constitutional power, independent of a general arbitration treaty, to conclude special agreements under the provisions of the Hague convention, has been much discussed. See FOSTER, THE TREATY-MAKING POWER UNDER THE CONSTITUTION, IL Yale L. J. 69; HOLLS, THE PEACE CONFERENCE AT THE HAGUE 216; HYDE, AGREEMENTS OF THE UNITED STATES OTHER THAN TREATIES, 17 Green Bag 229. That he may constitutionally be given such a power by a general

arbitration treaty is the contention of Mr. Wheeler's committee, who maintain that no treaty-making power is thus delegated to the President; that though every treaty is an agreement, every agreement is not a treaty; and that the power of the President and the Senate to make treaties is not limited to the power to make special treaties only.

Mr. Wheeler's view seems to derive some support from a decision under the tariff act of Oct. 1, 1890, in which a somewhat similar question was involved. Section three of this act provided that whenever the President should be satisfied that the government of any country producing certain articles which were admitted free into the United States, imposed on products of the United States duties which he should deem reciprocally unreasonable, he should suspend the free introduction of these articles for such a time as he should deem just, during which time designated duties were to be paid. 26 U. S. STAT. AT L. 567. This was held constitutional. Field v. Clark, 143 U. S. 649.

The court, after acquiescing in the general proposition that Congress cannot delegate its legislative power to the President, stated its position as follows: "It [the action of the President] was not making law. He was the mere agent of the lawmaking department to ascertain and declare the event upon which its expressed will was to take effect. . . What has been said is equally applicable to the objection that the third section of the act invests the President with treatymaking power." See BUTLER, TREATY-MAKING POWER OF THE U. Š.

§ 465, note 1.

Following out the analogy of this decision, it would seem that, although the President and Senate cannot delegate to the President the treaty-making power, yet they can frame a general arbitration treaty, in which the President is made the mere agent of the treaty-making department. The treaty gives a general ratification in advance, delegating to the President, as executive, the power of determining what individual instances fall within the scope of the ratification, and of making the necessary arrangements for carrying out the provisions for arbitration.

RIGHT OF CITY TO REQUIRE MATERIAL FOR ITS PUBLIC WORKS TO BE DRESSED WITHIN STATE. A recent article criticising a late decision of the Missouri Supreme Court has brought into prominence a very interesting question of interstate commerce. Municipal Ordinances relating to Materials entering into Public Works which Interfere with Interstate Commerce, by Eugene McQuillin, 61 Cent. L. J. 65 (July 28, 1905). An ordinance of St. Louis provided that only rock dressed within the state should be used in any of the city's public works. The court held that this ordinance was not in conflict with the commerce clause of the Federal Constitution, but was an exercise of a city's "reasonable right to select material for street improvements." Allen v. Labsap, 87 S. W. Rep. 926. This proposition Mr. McQuillin attacks, on the ground that a city's "reasonable right" does not justify an interference with interstate commerce, and that such an interference existed in the case under discussion. Mr. McQuillin leads up to this main point by a preliminary exposition of the elementary principles of interstate commerce, followed by the statement of several cases. A number of the decisions cited, however, seem not in point; among them, People v. Coler (166 N. Y. 144), on which chief reliance is placed. The opinion was to the effect that a state law requiring cities to adopt such ordinances as that of St. Louis is invalid under the commerce clause of the Constitution. There the state was prescribing conditions, not for itself in its rôle of proprietor, but for its cities. Nor does any question there arise of the reasonable right of a city to select material for its own works. The United States Supreme Court in the case of Atkin v. Kansas (191 U. S. 207) rendered a decision which applies very forcibly to the point under discussion. A state law requiring an eight-hour day on all the state's public works was held valid, on the ground that the state acting as a proprietor has the same right as an individual in prescribing the conditions under which work for it shall be done. If the Union Pacific, for example, were to declare that only ties dressed in

Missouri should be used on its roadbed in that state, there would surely arise no question of interference with interstate commerce.

The other cases cited by Mr. McQuillin hold invalid general state laws interfering with the inherent right to introduce goods from one state into another and to sell them in the general market. For example, the case of Robbins v. Shelby Taxing District (120 U. S. 489) declared unconstitutional a state law which put a license tax on all sales by drummers. The citation is not apposite, for St. Louis does not by its ordinance interfere with the sale to others of dressed rock from any source. The resulting reduction of the general market has no bearing on the constitutionality of the ordinance, since an individual or a corporation might easily use as large a proportion of dressed rock as does a single city. The fallacy in Mr. McQuillin's contention lies in the assumption that any one has an inherent right to compel St. Louis, for example, to accept his rock. No such right exists as against a city or state any more than it exists as against an individual or a corporation.

ABATEMENT OF SMOKE NUISANCE IN LARGE CITIES BY LEGISLATIVE DECLARATION THAT DISCHARGE OF DENSE SMOKE IS A Nuisance per sE. Eugene McQuillin. Collecting and reviewing the authorities on the question whether such legislation is within the reasonable exercise of the state's police power. 60 Cent. L. J. 343. "AGENCY BY ESTOPPEL." John S. Ewart. Reply to Professor Cook, presenting estoppel theory in cases of agent's unauthorized action. 5 Columbia L. Rev. 354. AMERICAN LAWYER, THE. Alfred Hemenway. The annual address before the American Bar Association. 17 Green Bag 514.

BASIS OF AFFIRMATIVE OBLIGATIONS IN THE LAW OF TORT, THE. II. Francis H. Bohlen. Full discussion of the line of cases headed by Winterbottom v. Wright. 53 Am. L. Reg. 273.

BUYER'S RISK IN CLOSING A REAL ESTATE Deal, The-HOW TO ESCAPE IT. Lemuel M. Ackley. A practical and valuable suggestion. 38 Chic. Leg. News 11. CASE OF JOHN CHANDLER V. THE SECRETARY OF WAR, THE. Gordon E. Sherman. Tracing the origin of the power of our courts to declare laws unconstitutional, and giving early cases on that point. 14 Yale L. J. 431.

CENTENARY OF THE FRENCH CIVIL CODE, THE. Sir Courtenay Ilbert. Touching incidentally the general question of codification. (Read before British Academy, 1904.) J. Soc. Comp. Leg. N. S. 218.

CERTAINTY AND JUSTICE. Frederic R. Coudert. Maintaining that the principle of "Stare Decisis" is being modified. Where public opinion has crystallized, the law is clear; elsewhere, as in labor questions, law is confused. 14 Yale L. J. 361. See 18 HARV. L. REV. 318.

COMMON LAW IN FEDERAL JURISPRUDENCE, THE. Thomas Dent. Concerning the ownership of basins of non-navigable waters adjoining land granted by United States patents. 61 Cent. L. J. 123.

CONDITIONS IN CONTRACT. Clarence D. Ashley. Distinguishing between express conditions, implied conditions, and limitations. 14 Yale L. J. 424.

CONSTITUTIONALITY OF GENERAL ARBITRATION TREATIES, THE. Everett P. Wheeler. 17 Green Bag 533. See supra.

CONTRIBUTION TO GENERAL AVERAGE. H. Birch Sharpe. Discussing how the obligation to contribute to general average arises in a policy of marine insurance. 21 L. Quar. Rev. 155.

COVENANT TO REPAIR IN SUB-LEASES, THE. H. C. M. A valuable warning to sublessors to see that every sub-lease reserves a power to the lessor to enter and make repairs on the tenant being in default. 119 Law T. 285.

CUSTOMS OF RAGUSA, THE. P. Vinogradoff. Being a review of a recent edition of the Statute of Ragusa. 21 L. Quar. Rev. 179.

DECEASED WIFE'S SISTER, THE. N. W. Hoyles. Called forth by the prevalency in Canada of marriages with deceased wives' sisters and discussing the question from a legal and historical view-point. 41 Can. L. J. 345.

DESTRUCTION OF NEUTRAL SHIPS BY A BELLIGERENT. Hugh H. L. Bellot. Maintaining that destruction of neutral ships by a belligerent cannot be justified by even the gravest necessity. 119 Law T. 193.