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defendant. Held, Buffington J. dissenting, such order was a final decision, and reviewable on a writ of error. Cassatt v. Mitchell Coal & Coke Co. (1907) 150 Fed. 32.

Under the American practice, a writ of error is allowed only from a final decision, Trustees v. Greenough (1881) 105 U. S. 527, but in determining whether a decree is final the court will consider the substance of what is done by such decree. Potter v. Beal (1892) 50 Fed. 860. In the principal case an order against the railroad officials was the proper method of obtaining the corporation's books, and it seems a doubtful policy to allow the officials, who are mere custodians with no personal interest, to delay the original suit by writ of error; thus allowing the railroad to do something through its officers which it could not do directly. The case comes within the spirit of Alexander v. United States (1905) 201 U. S. 117, which represents the better view.

PLEADING AND PRACTICE-PARTIES-AMENDMENT.-The plaintiff intended to sue the "T. & T. Co.," the decedent's employer, but designated the T. & T. Construction Co.," a corporation which had ceased doing business. Service was made on T., the vice-president of both corporations. Held, the summons and complaint might be amended under 723 of the Code. Ward v. Terry & Tench Const. Co. (1907) 102 N. Y. Supp.

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An amendment is allowed under § 723 of the Code in cases where there is a misnomer or some defect in the designation of the defendant, Munzinger v. Courier Co. (1894) 82 Hun 575, or where the defendant is originally designated as administrator, Tighe v. Pope (1878) 16 Hun 180, trustee, Boyd v. U. S. Mort. & Trust Co. (1907) 187 N. Y. 262; 7 CoLUMBIA LAW REVIEW 366, or executor, Kerrigan v. Peters (1905) 108 App. Div. 292, instead of in his individual capacity. While new entities are not admitted to an action by amendment, N. Y. S. M. Milk Pan Ass'n v. Rem. Ag. Works (1882) 89 N. Y. 22, the principal case may be supported on the ground that, while the name in the summons designated an existing corporation, this was but a coincidence, and the corporation substituted was the one intended to be served.

QUASI-CONTRACTS-RIGHTS OF A DEFAULTER UNDER AN EXPRESS CONTRACT. The plaintiff contracted to do a certain entire piece of work for the defendant at a certain rate, 90 per cent. of the payment for work done to be paid monthly, and the remaining 10 per cent. to be paid upon completion of all the work. The plaintiff stopped work in November because of frost, and the defendant did not pay for the November work on the 20th of the ensuing month, as had been customary. Both parties treated the contract as still entirely operative until the following 1st of April, when the plaintiff refused to continue performance, and later brought an action in quasi-contract for the value of the work actually done. Held, the plaintiff could recover. Cleveland Ry. Co. v. Scott (Ind. 1906) 79 N. E. 226. See NOTES. p. 418.

QUASI-CONTRACTS-SERVICES RENDERED TO DECEASED.-The plaintiff claimed for services rendered in caring for and nursing deceased for some years prior to his death. There was no agreement as to the mode of compensation; but the plaintiff expected a legacy. No provision was made for her in the will. Held, that she could recover for such services. Christianson v. McDermott's Estate (Mo. 1907) 100 S. W. 63.

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There is a presumption that compensation was intended, where services are rendered by any other than a member of the family. cession of Pereuilhet (1871) 23 La. Ann. 294; Wallace v. Schaub (1895) 81 Md. 594. If such services were given without an agreement as to the mode of payment, it matters not that the one giving them expected the compensation to take the form of a legacy. Freeman v. Freeman (1872) 65 Ill. 107; Roberts v. Swift (Pa. 1793) 1 Yeat. 209. But if the work is done merely in expectation of a voluntary legacy, without an

intention to create a right to other remuneration, no cause of action arises against the estate, failing the legacy. Lee v. Lee (Md. 1834) 6 Gill & J. 316; Shakespeare v. Markham (N. Y. 1877) 10 Hun 311. As in the principal case there was no understanding that the plaintiff was to rely on his employer's generosity, the case is correct. Robeson v. Niles (D. C. 1889) 7 Mack. 182, 189.

QUO WARRANTO-JUDICIAL ACT.-The Code gave unlimited discretionary power to the attorney-general to maintain an action to try title to office. M., a former attorney-general, had refused to bring such an action. Held, that his determination would not prevent J., his successor, from bringing an action on the same facts. People v. McClellan (1907) 103 N. Y. Supp. 146, aff'd. Ct. of App. May 10, 1907.

If M.'s refusal was a judicial determination of the question, it was not reversible or reviewable by his successor. People v. Stocking (1866) 50 Barb. 573; Noble v. R.R. Čo. (1892) 147 U. S. 165; People v. Supervisors (N. Y. 1861) 35 Barb. 408; Gulnac v. Board (N. J. 1906) 64 Atl. 998. A judicial act involves the determination of right, obligation, or property. Sinking Fund Cases (1878) 99 U. S. 700, 761; People v. Board (1880) 54 Cal. 375. A similar limitation of the term appears in the cases construing constitutional inhibitions against giving judicial powers to bodies other than courts. U. S. v. Ferreira (1851) 13 How. U. S. 40, 48; State v. Hathaway (1892) 115 Mo. 36. Although this conception is too narrow in cases exempting officers from tort liability for their quasijudicial" acts, Jones v. Brown (1880) 54 Ia. 74; Wasson v. Mitchell (1864) 18 Ia. 153, the distinction between judicial and discretionary acts need not arise in those cases, since the officer's discretion is what exempts him. Burdick, Torts, 35. The same holds true of mandamus, which never lies to control discretion, nor, a fortiori, the performance of judicial acts. Spelling, Injunctions §§ 1384, 1395. But the principle is well established that neither ministerial, People v. Carr (1884) 23 N. Y. Supp. 112, nor purely discretionary acts, Att'y Gen. v. Northampton (Mass. 1887) 10 N. E. 450, and only those whose nature is judicial in the sense adopted above, People v. Gilroy (1893) 25 N. Y. Supp. 878, may be reviewed on certiorari. Spelling, Injunctions, §§ 1898-9, 1927, 1954-7. If not a judicial act, the prior action of the attorney-general cannot be considered as leaving him functus officio; Jermaine v. Waggener (N. Y. 1841) 1 Hill 279; People v. Ames (N. Y. 1860) 19 How. Pr. 551; as there is nothing which restricts him in exercising his discretion as to the time for bringing suit. The principal case emphasizes the correct distinctions as laid down in Sinking Fund Cases, supra; In re Saline County (1869) 45 Mo. 52.

REAL PROPERTY-ADVERSE POSSESSION BY RAILROAD.-A railroad company took land for its right of way, but paid no compensation. An ejectment suit was brought twenty-five years later by the owner. Held, that the company could not set up adverse possession or an easement by prescription, as it must be presumed to have entered by condemnation proceedings; but that execution of the owner's judgment would be stayed to allow condemnation proceedings. Cornellsville Coal Co. v. B. & O. R. Co. (Pa. 1907) 65 Atl. 669.

This case undoubtedly represents the law as to adverse possession in Pennsylvania, Covert v. Ry. Co. (1903) 204 Pa. St. 341; Carter v. Turnpike Co. (1904) 208 Pa. St. 565, but not generally elsewhere. Organ v. R.R. Co. (Ark. 1889) 11 S. W. 96; Myers v. McGavock (1894) 39 Neb. 843 Hanlon v. R.R. Co. (1894) 40 Neb. 52; St. Paul v. Ry. Co. (1895) 63 Minn. 330. Its justification in principle is doubtful. A railroad may acquire land otherwise than by condemnation, 2 Elliott, Railroads, 400, and the presumption that it must so take is arbitrary, and opposed to public policy, since it is less detrimental to the public interest to force land owners to assert their claims in time than to obstruct the operation of a railroad. Cf. Ind. B. & W. Ry. Co. v. Allen (1888) 113 Ind. 581; McAuley v. R.R. Co. (1860) 33 Vt. 311. To stay the execution of the

plaintiff's judgment until condemnation proceedings can be instituted is to recognize that the railroad did enter as a trespasser, the contrary of which has just been conclusively presumed. On the other hand, to deny the right of a railroad to set up a prescriptive easement in the right of way is clearly opposed to the weight of authority. American Bank Note Co. v. R.R. Co. (1891) 129 N. Y. 252; Wayzata v. Ry. Co. (1892) 50 Minn. 438; McCutchen v. Ry. Co. (La. 1907) 43 So. 42.

REAL PROPERTY-EASEMENTS-EXTENT.-A granted B the right to build a reservoir at a certain spring on A's land, and to draw water therefrom, the reservoir not to occupy more than one-half acre. B built the reservoir. Ten years later he proposed to increase his water supply. Held, an injunction would lie to restrain him, although the well would be within an area, including the reservoir, of one-half acre, if the boundaries should be fixed according to B's claim. Sted v. Water Co. (N. J. 1907) 65 Atl. 713.

This case falls clearly within the principle of Onthank v. R.R. Co. (1877) 71 N. Y. 194. If B had changed merely the mode of user, leaving the amount of water withdrawn substantially unaffected, he might have had the benefit of an ambiguity in the grant, assuming there was any; Tourtellot v. Phelps (1855) 4 Gray 370; but, having attempted to enlarge the extent of the easement beyond the point where he originally fixed it, he cannot justify his encroachment on one side of his privilege by showing that it will not be an encroachment on another. Goddard, Easements, 276, 311.

REAL PROPERTY-POWERS IN TRUST-DOMESTIC RELATIONS LAW.-A testator in New York constituted his executors guardians of the property of his minor children. The New York Domestic Relations Law constitutes a wife joint guardian with her husband, and restricts to the surviving parent the right to appoint a testamentary guardian. Held, though the appointment as guardian was void, it was valid as creating a power in trust. Kellogg v. Burdick (N. Y. 1907) 80 N. E. 207. See NOTES, P. 410.

REAL PROPERTY-RULE AGAINST PERPETUITIES-OPTION.-A leased land to B for thirty years with an option to purchase for £1325 at any time during the lease upon giving notice. An action was brought for specific performance of the option, or, in the alternative, damages for breach of contract. Held, the option was void for remoteness and would not be enforced by specific performance; but damages at law would be awarded. Worthing Corporation v. Heather [1906] 2 Ch. D. 532. See NOTES, P. 406. TORTS-DANGEROUS COMMODITY-LIMIT OF OWNER'S ABSOLUTE RESPONSIBILITY. The plaintiff's trees were injured by the escape of gas from the defendant's main, laid under the street. Held, the defendant was not absolutely liable, but was only bound to use care commensurate with the danger of handling so dangerous a commodity. Gould v. Winona Gas Co. (Minn. 1907) 111 N. W. 254.

When one maintains on his land any dangerous agency, which is not required for the natural use of that land, it is generally held to be his absolute duty to see that it does not injure anyone else. Rylands v. Fletcher (1868) 37 L. J. Ex. (N. S.) 161; Shipley v. Fifty Associates (1870) 106 Mass. 194; Cahill v. Eastman (1872) 18 Minn. 324; but see contra, Losee v. Buchanan (1873) 51 N. Y. 476. But where the same dangerous thing is acquired by one, not primarily to be used by him on his own land, but for the benefit of others, and those others, by making use of that thing, thereby countenance its acquisition, they cannot in justice hold the one who acquires it to the same absolute duty, but only to care commensurate with the requirements of handling the thing in question. Price v. Gas Co. (1895) 65 L. J. Q. B. D. 126; Blyth v. Waterworks Co. (1856) 25 L. J. Exch. 212; Illingsworth v. Elect. Co. (1894) 161 Mass. 583. The decision of the principal case seems, therefore, not to be a

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departure from the rule of Rylands v. Fletcher, supra, but to illustrate clearly the limits of the rule laid down in that case.

TORTS-NEGLIGENCE - ALLUREMENT TO CHILDREN.-The plaintiff, a small boy, was injured by the shock from an uninsulated electric light wire strung on a tree which he was climbing, and which was situate on a street in a crowded part of the city. Temple v. McComb City etc. Power Co. (Miss. 1907) 42 So. 874.

While the doctrine of the turntable cases, Pekin v. McMahon (1895) 154 Ill. 141; R.R. Co. v. Stout (1873) 17 Wall. 657; Keffe v. R.R. Co. (1875) 21 Minn. 207, is being gradually repudiated, Barney v. Hannibal Ry. (1894) 126 Mo. 372; Ryan v. Tower (1901) 128 Mich. 463; Walker v. Potomac Ry. Co. (Va. 1906) 53 S. E. 113, the reason for this revulsion, namely that the doctrine practically makes landowners insurers of children, Burdick, Torts, 467, and restricts them in the use of their land, D. L. & W. Ry. Co. v. Reich (1898) 61 N. J. L. 636, seems to have no application in the principal case, as the plaintiff was not a trespasser. It was for the city to say how its property was to be used; Nelson v. Branford Co. (1903) 75 Conn. 548; Perham v. Electric Co. (1898) 33 Ore. 451; and as the boys must be presumed to have been the city's licensees unless the contrary were shown, Whittleder v. Illuminating Co. (N. Y. 1900) 50 App. Div. 478; Daltry v. Light Co. (1904) 208 Pa. St. 403, and as the defendant had reason to believe that the city would permit the boys to play there, Anderson v. Light Co. (1898) 63 N. J. L. 387; Daltry v. Light Co., supra, it owed a duty to protect them from the dangerous agency which it controlled. Denver Electric Co. v. Simpson (1895) 21 Colo. 371.

TORTS-NEGLIGENCE-LIABILITY OF PACKER FOR UNWHOLESOME FOOD. —The defendant, a packer, had sold diseased ham in a can to a retail dealer. He resold it to the plaintiff, who became ill from eating it. Negligence in packing was alleged. Held, on demurrer, the complaint did not state a cause of action. Tomlinson v. Armour & Co. (N. J. 1907) 65 Atl. 883.

Vendors of dangerous goods are liable for failure to exercise care commensurate with the possible danger. This has been held of dealers in drugs, George v. Skivington (1869) L. R. 5 Ex. 1: Thomas v. Winchester (1852) 6 N. Y. 397, food, Bishop v. Weber (1885) 139 Mass. 411, and explosives, Wellington v. Downer Oil Co. (1870) 104 Mass. 64, and of manufacturers generally, Elkins v. McKean (1875) 79 Pa. St. 493, without privity of contract, for a duty rests on them independent of contract. Coughtry v. Woolen Co. (1874) 56 N. Y. 124; Thompson, Negligence, 232. Mere manual possession by an intermediate party, where the defects cannot be discovered, does not relieve the manufacturer from liability to the consumer; Schubert v. Clark Co. (1892) 49 Minn. 331; and similarly, the purchaser cannot be deemed to have taken the risk. Best v. Flint (1885) 58 Vt. 543. While the result of the principal case appears incorrect, it has, however, been reached elsewhere. Nelson v. Armour Packing Co. (Ark. 1905) 90 S. W. 288.

TRUSTS-ACCUMULATIONS-DISPOSITION IN CASE OF INVALID DIRECTION. A testator devised the residue of his estate to executors in trust to pay the income to his wife for life, and directed that upon her death a part of the residue should go to a charitable corporation to be formed by the executors within two lives in being, and declared that in case the gift to said corporation should fail, the property should go to X. The wife perished with the testator, and the A. Institute was subsequently formed as directed.. Held, there was a valid trust in the executors to pay over the fund to the A. Institute when formed, and that the latter 'presumptively entitled to the next eventual estate" and should take all the accumulations. St. John v. Andrews Institute for Girls (1907) 102 N. Y. Supp. 808. See NOTES, p. 403.

was

TRUSTS-CREATION BY PAROL-DONOR AS TRUSTEE.-Defendant's executor delivered his check to the plaintiff intending it as a gift to her. Later he took the check saying he would use it for her and make it earn more money. Held, the check was only a promise to pay, and being without consideration, there could be no recovery. Thogmorton v. Grigsby's Adm'r (Ky. 1907) 99 S. W. 650.

This was not a gift, as there must be a complete and unconditional giving up of dominion over the subject-matter. Gannon v. McGuire (1899) 160 N. Y. 476; Cloyes v. Cloyes (1885) 36 Hun 145; Thresher v. Dyer (1897) 69 Conn. 404. But if a donor constitutes himself a trustee for his donee, no actual delivery is necessary, Yokem v. Hicks (1900) 93 Ill. App. 667, and if the intention to create a trust in the present, Ex parte Pye (1811) 18 Ves. 140, and not in the future, Ellison v. Ellison (1802) 6 Ves. 656, is clear, Young v. Young (1880) 80 N. Y. 422, technical words creating a trust are unnecessary. Mabie v. Bailey (1884) 95 N. Y. 206. It is submitted that the expressions of the donor in the principal case evince an intention to constitute himself a trustee for his beneficiary. Though an incomplete gift will not be turned into a trust by equity, Wadd v. Hazelton (1893) 137 N. Y. 215, this should not prevent a true declaration of trust from having its full effect. Smith's Estate (1892) 144 Pa. St. 428.

WATERS AND WATERCOURSES-PRIVAte Right of ACCESS TO Navigable WATERS-WHARFING OUT.-A riparian owner on a bay, the foreshore of which was owned by a town under an old colonial grant, erected a pier extending from his upland about one hundred and fifty feet into and over the waters of the bay. Held, Hiscock J. dissenting, the riparian owner's right of access included the right to wharf out as a means of completely and innocently enjoying the right of access. Trustees of the Town of Brookhaven v. Smith (1907) 36 N. Y. L. Jour. No. 145. NOTES, p. 412.

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WILLS CONSTRUCTION-NATURE OF ESTATE.-A testator devised land to three daughters "and their children.' Held, the daughters and children living at the testator's death took a joint fee. Wills v. Foltz (W. Va. 1907) 56 S. E. 473.

The point decided here goes back, not to the more famous dictum, but to the decision in Wild's Case (1599) 6 Co. 16b, 17b, and to Oates v. Jackson (1743) 2 Strange 1172. Although it is said that a deed to A and his children, before and after-begotten, will give A only a life estate, remainder to the children, since "in order to make a valid conveyance none but parties vendees can take a present estate," Bodine's Admn'rs v. Arthur (1890) 91 Ky. 53; Wager v. Wager (Pa. 1815) 1 S. & R. 374, this difficulty is obviated in devises, as the will speaks, by the best authority, 2 Jarman, Wills 1237, and usually, as in the principal case, by statute, W. Va. Code, 1906, § 3142, from immediately before the testator's death. I Stimson, Am. Stat. L. § 2806. Since the word "children" is prima facie one of purchase, Martin v. Martin (1903) 52 W. Va. 381, 387, and there is nothing to rebut this presumption as to the testator's intention, the case is sound. Fitzpatrick v. Fitzpatrick (1902) 100 Va. 552, accord. The will cases giving an exclusive estate to the parent and nothing to the children rest upon circumstances showing a different intention in the testator. Wallace v. Dold's Ex'rs (Va. 1831) 3 Leigh 258; Stace v. Bumgardner (1892) 89 Va. 418.

WILLS-INTEREST ON ANNUITIES.-By a will probated in 1878 the testator gave his daughter an annuity for five years none of which had been paid in 1905. Held, interest was properly allowed on the amounts in arrears from the date of their maturity. Willcox v. Willcox (Va. 1907) 56 S. E. 588.

In England interest is not generally allowed on annuities, Bedford v. Coke (1750) 1 Dick. 178; Anon. (1755) 2 Ves. Sr. 661; Booth v. Leycester (1838) 3 Myl. & C. 459; Jenkins v. Briant (1848) 16 Sim. 272, as tending

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