plaintiff a just relief which is not obtainable with more fairness to the defendant. Only in attachment and garnishment is such relief afforded; the plaintiff could be fully protected by permitting attachment or garnishment merely to maintain the status quo, pending suit in a state more properly having jurisdiction over the defendant.13 A distinction between the new class of jurisdiction, and all others except that based on garnishment of the absentee's creditors, is that only garnishment and the proposed type present the possibility of injustice, in rare cases, to the debtor; but this is a rather minute consideration.

The proposed type of jurisdiction is helped not only by the fact that many other types are no more justifiable, but also by its close analogy to jurisdiction based on garnishment. Each of these two types includes a suit against a debtor within the state, and a suit against an absentee; the difference is merely that the proposed type seeks to disestablish the absentee's right to the principal debt, and garnishment to establish the absentee's indebtedness to the plaintiff.

EQUITABLE DECREE AS CAUSE OF ACTION IN ANOTHER STATE. — The law of the situs governs the creation of legal and equitable interests in land. If that law creates a valid trust, the courts of another jurisdiction will recognize it, even though by the law of the forum a trust would not be created.1 Conversely, if the law of the situs does not predicate a trust upon certain acts, a foreign jurisdiction will not impose a trust, although its law would create one from those acts.2 In this country, these principles apply even to marriage settlements.3

4

Equity does, however, exercise some power over foreign land. Acting in personam, it may decree specific performance of a contract to convey, or require deeds to rectify a boundary. Even though the law of the situs would not recognize a right to a conveyance, equity may decree a conveyance as a remedy for a tort, or breach of contract.7

A recent case raises the interesting question of the effect of such a decree in the jurisdiction where the land is. De Graffenried v. De Graffenried, 132 N. Y. Supp. 1107 (App. Div.). A Swiss court granted a divorce to a wife. Swiss law, on a decree of divorce against the husband, requires him to reconvey property which the wife has transferred to him during the marriage. The wife in New York sought a reconveyance

13 This is the procedure employed in France and Belgium. Todesco v. Dumont, 18 Journal du Droit International Privé, 559. See BAR, INTERNATIONAL LAW (Gillespie's translation), 536-537.

1 In re Fitzgerald, [1904] 1 Ch. 573; Knox v. Jones, 47 N. Y. 389.

2 Acker v. Priest, 92 Ia. 610, 61 N. W. 235. See 20 HARV. L. REV. 382.

3 Saul v. His Creditors, 5 Mart. N. s. (La.) 569. In England, it is held that the law

of the place of the contract governs the future acquisitions of property. De Nichols

v. Curlier, [1898] 1 Ch. 403. See 12 HARV. L. Rev. 138.

4 Sutphen v. Fowler, 9 Paige (N. Y.) 280; Newton v. Bronson, 13 N. Y. 587. Penn v. Lord Baltimore, I Ves. 443.

6 Lord Cranstown v. Johnston, 3 Ves. Jr. 170.

7 Ex parte Pollard, Mont. & C. 239.

of such property, situated in New York. The court dismissed the bill. Obviously her contention that the Swiss law created in her deed an implied condition to reconvey, in the event of divorce, was groundless, since the law of the situs recognized no such interest. Admitting that the decree imposed a duty to reconvey, it could not act directly upon the title. It is clear law that an action to quiet title brought at the situs would not lie. The enforcement of such a foreign decree is a matter of policy; in the nature of things there would be no difficulty in enforcement if authorized by statute. But by the common law, an equitable decree for the doing of an act, except for the payment of money, is not enforceable in another court. 10 Thus a decree to execute a mortgage in a foreign jurisdiction will not be enforced at the situs of the land. The rule that jurisdiction respecting foreign land is only in personam, is bereft of all practical force if the decree must be enforced by the court of the situs. Such a doctrine would really accord jurisdiction over its lands to a foreign court. The most serious objection is that there is no form of procedure for enforcing the personal decree of a court of equity except by order of the court rendering it. The decree is in its nature not the establishment of an obligation, but a method of enforcing an obligation a mere form of execution.12 Similarly, where foreign laws impose the duty of providing for a destitute son-in-law, that obligation is not enforceable in another country.13 Where Mexican law imposed a personal obligation on a railroad to support the widow of a man killed on its road, so long as she was needy, that obligation could not be enforced in this country, because there is no common-law procedure applicable.14

A distinction has been suggested between the enforcement of foreign decrees effectuating rights existing apart from the decree, and those in which no antecedent obligation exists.15 It is submitted that such a distinction is without merit, and the cases relied on to support it show only that when the equitable foreign decree is put in evidence as a defense, it is conclusive. 16 In such cases, there being no procedural difficulties, the foreign decree should always be allowed where equitable defenses are permitted at law.

8 Farmers Loan & Trust Co. v. Postal Tel. Co., 55 Conn. 334, 11 Atl. 184; Price v. Johnston, 1 Oh. St. 390.

9 Fall v. Fall, 75 Neb. 104, 113 N. W. 175; Fall v. Eastin, 215 U. S. 1, 30 Sup. Ct. 3. 10 See 3 BEALE, CASES ON THE CONFLICT OF LAWS, 537. Judgments and equitable decrees, however, for the payment of money, are enforceable in a foreign jurisdiction, in an action of debt. Henley v. Soper, 8 B. & C. 16; Thrall v. Waller, 13 Vt. 231. So upon the granting of a divorce, a decree for the payment of money as alimony is enforceable in another jurisdiction. Wagner v. Wagner, 26 R. I. 27, 57 Atl. 1058. But execution will not issue on the judgment of another state without suit on the judgment. Lamberton v. Grant, 94 Me. 508, 48 'Atl. 127.

11 Bullock v. Bullock, 51 N. J. Eq. 444, 27 Atl. 435; s. c. 52 N. J. Eq. 561, 30 Atl.

676.

12 Bullock v. Bullock, 52 N. J. Eq. 561, 30 Atl. 676.

13 De Brimont v. Penniman, 10 Blatch. (U. S.) 436.

14 Slater v. Mexican National R. Co., 194 U. S. 120, 24 Sup. Ct. 581.

15 See 21 HARV. L. REV. 210.

16 In Burnley v. Stevenson, 24 Oh. St. 474, the plaintiff sued in Ohio to recover possession of Ohio land. The defendant was allowed to plead a decree of a Kentucky court for the specific performance of a contract to convey that land, and the decree was considered conclusive. See also Dunlap v. Byers, 110 Mich. 109, 67 N. W. 1067.

DAMAGES FOR INJURY TO CHATTELS RECOVERABLE BY PERSON HAVING POSSESSORY INTEREST ONLY. In early English property law possession was always of controlling importance.1 Title, as distinguished from possession, was of little consequence. At that time, when theft of chattels was most common, a recovery depended upon raising hue and cry, and giving hot pursuit. It is only natural, therefore, that in the early cases the person in possession, and he only, should sue for injury to chattels.3 As between wrongful possessors it was thought that any other state of law would amount to an invitation to all the world to scramble for possession. Influenced by these matters of history and policy the English court in the Winkfield case 5 established the doctrine of modern damage law, that a bailee may recover the whole damage done to a bailed chattel by a wrongdoer, though the bailee would not be liable to the bailor for such wrongful act. The court there said, obiter, that such a recovery by the bailee would bar a subsequent action by the bailor for the injury to his general property. The case is law generally. It has been followed recently by a Canadian court which approved the dictum also. Compton v. Allward, 48 Can. L. J. 109 (Manitoba, K. B.).

8

It is a cardinal principle of the law of damages that a cause of action should give only proper compensation. A right of action, indeed, is merely a substitute given by law for some right of a plaintiff which has been violated. Under the present state of law, however, a bailee, and probably a finder or wrongful possessor, is permitted to sue and recover damages for injury which he has not sustained. This, with submission, is anomalous. Moreover, it seems there is a danger of great injustice to the general owner. Suppose a bailee sues a wrongdoer and after receiving the full value of the chattel in satisfaction absconds or is insolvent. Or, suppose he settles with the wrongdoer without bringing suit. Surely it is not law that by such satisfaction of judgment or other settlement a person with a mere special property can take away any right of the general owner.10 And yet this is what the dicta in the cases indicate." After allowing the bailee a full recovery, the courts could hardly hold otherwise. It is only just to the wrongdoer that he should

1 See 3 HARV. L. REV. 23-40.

2 See POLLOCK & MAITLAND, HISTORY OF ENGLISH LAW, 169; HOLMES, THE COMMON LAW, chap. 5.

The authorities prior to 1869 are collected in a note to Hostler v. Skull, 1 Am. Dec. 583 (N. C.).

4 See Webb v. Fox, 7 T. R. 391, 397.

5 [1902] P. 42. See 13 HARV. L. REV. 411; 15 id. 585.

See The Winkfield, supra, 61.

7 Glenwood Lumber Co. v. Phillips, [1904] A. C. 405; Union Pacific R. Co. v. Meyer, 76 Neb. 549, 107 N. W. 793. Two cases in America anticipated the holding in the Winkfield case. Woodman v. Nottingham, 49 N. H. 387; Brewster v. Warner, 136 Mass. 57.

8 Fay v. Parker, 53 N. H. 342; Murphy v. Hobbs, 7 Colo. 541.

• Armory v. Delamirie, 1 Str. 505.

10 These difficulties of the present law are considered in 2 BEVEN, NEGLIGENCE, 3 ed., 737, note.

The cases have, with few exceptions, adopted the dictum of the Winkfield case, that the general owner is barred by the special owner's recovery in full. See Brinsmead v. Harrison, L. R. 8 C. P. 584.

not be subject to a subsequent suit by the general owner; for the wrongdoer is without a remedy against the bailee who sued him and has had satisfaction.12

This condition of law is no longer justifiable. The chief historical reasons underlying the old decisions have now become obsolete.13 Today title and the limited possessory interests are recognized as separable,14 and capable of distinct valuation. So, if both the general owner and one having a special property have suffered damage by the wrongful act of a third party each should bring an action for his own actual loss. There can be no serious objection to a jury determining the value of the particular interest injured. This is done, constantly, in analogous cases, where limited interests in property are involved.15 This was the view of an English court in an accurate and well-reasoned opinion.16 It has been made the practice by statute in some American jurisdictions,17 and recently the Massachusetts court indicated a leaning in this direction.18 This comports with sound principles of damage law; and the only hardship on the parties would be merely such as are incident to all jury valuations.

REMOTENESS OF TRUSTS FOR ACCUMULATION DURING MINORITIES OF TENANTS IN TAIL. — In determining whether provisions for accumulation by trustees during a term for years are too remote, it is submitted that three things must be considered: 1. the position of the term for years on which the trusts are raised; 2. the power to enter and accumulate; 3. the direction of the accumulated fund. If the term succeeds

12 Marriot v. Hampton, 7 T. R. 269; Hamlet v. Richardson, 9 Bing. 644. But cf. Duke de Cadaval v. Collins, 4 A. & E. 858.

13 See 2 BEVEN, NEGLIGENCE, 736, note.

14 Nicholls v. Bastard, 2 C. M. & R. 659; Manders v. Williams, 4 Exch. 339.

15 Lienor and lienee: Fowler v. Gilman, 13 Met. (Mass.) 267. Cf. Mulliner v. Florence, 3 Q. B. D. 484. Pledgor and pledgee: White v. Allen, 133 Mass. 423; Johnson v. Stear, 15 C. B. N. s. 330. Mortgagor and mortgagee: Brierley v. Kendall, 17 Q. B. 937. Vendor and vendee: Chinery v. Viall, 5 H. & N. 288; Gillard v. Brittan, 8 M. & W. 575. Bailor and bailee: See The Winkfield, supra, 60.

16 Claridge v. South Staffordshire Tramway Co., [1892] 1 Q. B. 422, 423, per Hawkins, J.: "It is true that if a man is in possession of a chattel and his possession is interfered with, he may maintain an action but only for the injury sustained by himself. The right to bring an action against a wrongdoer is one thing, the measure of damages recoverable in such action is another." For discussion of this case, see 6 HARV. L. REV. 156; 13 id. 411. It was doubted in Meux v. Great Eastern Ry. Co., [1895] A. C. 387, and overruled by the Winkfield case, supra.

17 MICH. LAWS, 1865, 325, referred to in Weber v. Henry, 16 Mich. 399; Darling v. Tegler, 30 Mich. 54. These are cases of replevin, but this does not alter their importance as a matter of damages. Cf. GEORGIA CODE, 1911, tit. 9, c. 3, art. 2, § 4486; Lockhart v. Western & Atlantic R., 73 Ga. 472.

.

18 See Bowen v. New York Central, etc. R. Co., 202 Mass. 263, 269, 88 N. E. 781: "The plaintiff has, as bailee, a special property and so might sue in her own name for the injury to it, and at any rate, with the consent of the general owner, could recover full damages therefor." By thus qualifying the rule the Massachusetts court has removed the most objectionable feature from the law as laid down by Holmes, J., in Warner v. Brewster, 136 Mass. 57.

1 This discussion excludes any consideration of the THELLUSSON ACT (39 & 40 GEO. 3, c. 98).

an estate tail, the trust cannot be too remote, as the term can be entirely destroyed by the tenant in tail.2

What if the term precedes an estate tail? If the trustees are to enter and accumulate for one year after the testator's death and pay the fund to a living person the trust is not too remote. But if the fund is to be paid to unborn grandchildren when they reach twenty-five, the trust is too remote, because the direction of the fund is too remote. A similar result obtains if the fund is to be paid to the first tenant in tail that reaches twenty-one, for there might not be a tenant in tail who attained his majority for centuries. The power, however, to enter and accumulate is not too remote and there is a resulting trust of the fund to the heir of the testator. Now if we substitute a power to enter and accumulate during the minority of any tenant in tail, the fund to be paid to the first tenant in tail that reaches twenty-one, the trust is again too remote; not, it is submitted, because the power to enter is too remote, for that is destructible by a tenant in tail, but because the direction of the fund is too remote. If, the power being the same, the fund were to be paid on the death of a person in being, the trust would not be too remote. And, this being true, it would seem that the trust is not too remote if the fund is to be used to purchase land to be settled on the same limitations as the property settled by the will, for barring the entail would destroy the purpose of the fund.

The English cases are opposed to this last proposition, but there has been much dispute as to their correctness. It is true that in all the above supposed cases the legal term is indestructible. But in none of them was the remoteness determined by that, but rather by examining the power to enter and the direction of the fund. If both of these are destructible by a tenant in tail, it would seem to be immaterial that the dry term is not, for in case both the former are destroyed, the term would become attendant on the inheritance and a cesser take place. By regarding merely the indestructibility of the legal term and not the destructibility of the trust, these cases sacrifice substance to form. A recent English decision is an example of this. The power was to enter and accumulate during the minority of any tenant in tail, the fund to be used in paying off incumbrances.10 A long line of cases has held that such a direction is not too remote." And, since no term was expressly given 2 Goodwin v. Clark, 1 Levinz 35.

3 Boughton v. James, 1 Coll. 26.

Tregonwell v. Sydenham, 3 Dow 194. Cf. Hopkins v. Hopkins, Forrester 43. Another view is that the trust to accumulate sinks for the benefit of the devisees. See GRAY, RULE AGAINST PERPETUITIES, 2 ed., § 671. Probably in the last analysis it is a question of the testator's intention. See Cook v. Stationers' Co., 3 Myl. & K. 262, 265; LEWIN, TRUSTS, 12 ed., 167, 177.

Southampton v. Hertford, 2 Ves. & B. 54.

Browne v. Stoughton, 14 Sim. 369; Turvin v. Newcome, 3 Kay & J. 16.

7 See GRAY, RULE AGAINST PERPETUITIES, 2 ed., § 456; LEWIS, SUPPLEMENT, 174. Arguments in support of these cases are to be found in 3 JUR. N. S., part 2, 181; I JARMAN, WILLS, 6 ed., 268 n.

8 Eales v. Conn, 4 Sim. 65.

Cf. SANDERS, USES, 5 ed., 203 n.

10 Part of the receipts were to be used in maintaining the infant. That object is not too remote.

11 Bacon v. Proctor, Turn. & R. 31; Bateman v. Hotchkin, 10 Beav. 426. See GRAY, RULE AGAINST PERPETUITIES, 2 ed., §676. Contra, Scarisbrick v. Skelmersdale, 17 Sim. 187.