And indeed the criminal law would seem to be chiefly concerned with wrongs injurious to the public at large. See I BISHOP, NEW CRIMINAL LAW, § 32. Cf. BOSANQUET, PHILOSOPHICAL THEORY OF THE STATE, 37, 39. When a public officer refuses to perform his function, the citizen has no adequate remedy but mandamus. This consideration, however, leads to a modification of the citizen's right in that he must show that the officer does not intend to perform his duty before he may enforce performance by mandamus. In re Whitney, 3 N. Y. Supp. 838.

MUNICIPAL CORPORATIONS

LIABILITY FOR TORTS - INJURY FROM FALLING LIMB OF Dead Tree on STREET. — The plaintiff was injured by a limb falling from a tree standing on a public street. The tree had been in a dangerous condition over a year. Held, that the municipal corporation is not liable. Dyer v. City of Danbury, 81 Atl. 958 (Conn.). See NOTES, p. 646.

MUNICIPAL CORPORATIONS – LIABILITY FOR TORTS — ULTRA VIRES UNDERTAKING. The plaintiff was injured by a blast from a quarry, operated by the municipal authorities. The city had no power to operate the quarry. Held, that the plaintiff cannot recover. City of Radford v. Clark, 73 S. E. 571 (Va.). See NOTES, p. 648.

PATENTS EFFECT OF DECREE for DefendanT IN INFRINGEMENT SUIT. — A patent for certain wheels was declared invalid in a suit in the Seventh Circuit against the Kokomo Company. The patent was held valid in the Second Circuit, and this holding was affirmed by the Supreme Court. Purchasers of wheels from the Kokomo Company are sued for infringement in the second Circuit. Held, that they are not protected by the decree in favor of the seller. Hurd v. Seim, 189 Fed. 591 (Circ. Ct., N. D. N. Y.); Hurd v. Woodward Co., 190 Fed. 28 (Circ. Ct., N. D. N. Y.). See NOTES, p. 649.

PATENTS - INFRINGEMENT LICENSE RESTRICTION THAT USER BUY UNPATENTED SUPPLIES ONLY FROM PATENTEE. Patented mimeographs were sold with license restrictions that they be used only with supplies of the patentee's production. The defendant sold unpatented ink with the expectation that it would be used on the patented mimeograph. Held, that the defendant is guilty of contributory infringement. Henry v. A. B. Dick Co., U. S. Sup. Ct., March 11, 1912. See NOTES, p. 641.

QUASI-CONTRACTS

LAW

MONEY PAID UNDER DURESS OR COMPULSION OF RECOVERY OF TAXES COLLECTED UNDER UNCONSTITUTIONAL STATUTE. A state statute levied an unconstitutional tax upon foreign corporations and provided for heavy monetary penalties and forfeiture of the right to do business upon failure to pay. Held, that a corporation paying the tax under protest may recover it. Atchison, etc. Ry. Co. v. O'Connor, 32 Sup. Ct. 216.

A state statute levied a franchise tax upon foreign corporations authorized to do business in the state and provided for a heavy penalty and forfeiture of the right to do business upon non-payment. The supreme court of the state had held that a previous similar statute applied only to corporations doing intrastate business. Held, that a foreign corporation doing interstate business cannot recover the tax paid under protest. Gaar, Scott & Co. v. Shannon, 32 Sup. Ct. 236.

Institution of suit on an illegal claim is not duress, since the invalidity of the claim may be shown as a defense. See Town Council v. Burnett, 34 Ala. 400, 404; Oceanic Steam Navigation Co. v. Tappan, 16 Blatch. (U. S.) 296, 301. But see KEENER, QUASI-CONTRACTS, 434. Nor is a demand for property under a void warrant duress, unless the warrant is primâ facie valid, for such a

warrant may be resisted. Cf. Sowles v. Soule, 59 Vt. 131, 7 Atl. 715; Canfield Salt & Lumber Co. v. Township of Manistee, 100 Mich. 466, 59 N. W. 164. See 2 COOLEY, TAXATION, 3 ed., 1476. And since mere sale of realty under an illegal tax claim is void and does not cloud the title, it is not duress. City of Detroit v. Martin, 34 Mich. 170; Sonoma County Tax Case, 13 Fed. 789. But cf. Montgomery v. Cowlitz County, 14 Wash. 230, 44 Pac. 259. It has been held, in accord with the principal cases, that a statute imposing penalties for nonpayment is duress. Ratterman v. Express Co., 49 Oh. St. 608, 32 N. E. 754. Though its validity could be attacked in the action for collection, if it proved valid, the penalties for non-payment would be imposed. This risk makes payment under protest involuntary. Contra, Michel Brewing Co. v. State, 19 S. D. 302, 103 N. W. 40. The first of the principal cases further holds that a statute automatically forfeiting the franchise constitutes duress. A decision may subsequently declare the statute void ab initio, but its effect upon the business in the meantime cannot be erased. The same considerations apply when it is uncertain whether the plaintiff's business is within the statute. But when the terms of the statute are reasonably free from doubt, or have been made so by judicial construction, and no step except demand is taken against the business, there is no duress.

RES JUDICATA-MATTERS CONCLUDED FORMER JUDGMENT BAR TO A NEGATIVE DEFENSE. In answer to a plea of no consideration in an action for rent, the plaintiff pleaded a recovery on a former instalment. In the former action, there had been no allegation or denial of consideration. Held, that the defendant is estopped by the former judgment. Cooke v. Rickman, 105 L. T. 896 (Eng., K. B. D., July 13, 1911).

In a subsequent action between the same parties or their privies, a prior judgment is conclusive evidence as to all questions actually adjudicated thereby. Price v. Carlton, 121 Ga. 12, 48 S. E. 721; Anthanissen v. Dart, 94 Ga. 543, 20 S. E. 124. This is true even though the later action is on a different cause of action, as for a subsequent instalment. Koehler v. Holt Mfg. Co., 146 Cal. 335, 80 Pac. 73. See Bond v. Markstrum, 102 Mich. 11, 19, 60 N. W. 282, 284. The rule is clearly fictitious, since, while declaring the prior judgment conclusive evidence, it confines its operation in this respect to actions between the parties. See 17 HARV. L. REV. 406. The policy underlying it is the desirability of limiting litigation. See 2 BLACK, JUDGMENTS, 2 ed., § 500. It is justified on the ground that the parties have admitted the fact or have had adequate opportunity to contest it. See 2 BLACK, JUDGMENTS, 2 ed., § 614. Consequently, it does not apply where the defendant sets up an affirmative defense not considered in the former action. Richardson v. City of Eureka, 110 Cal. 441, 42 Pac. 965; Stone v. St. Louis Stamping Co., 155 Mass. 267, 29 N. E. 623. But where the fact, even though not in terms pleaded or denied in the prior suit, was essential to the judgment in that suit, it seems properly held res judicata. This is especially true if, as suggested in the principal case, the Judicature Act requires no allegation of such essential fact.

RULE AGAINST PERPETUITIES - TRUSTS FOR ACCUMULATION DURING MINORITY OF TENANTS IN TAIL. A testator devised an estate to legal limitations in strict settlement, and provided that during the infancy of any tenant for life or in tail in possession the trustees of the will should enter into possession of the rents and profits, with power, inter alia, to hold manorial courts and accept surrenders of leases, maintain the infant and apply the surplus to discharge incumbrances on this and other estates. Held, that as the trustees take no legal estate, but simply a power, the minority clause is not void for remoteness. In re Earl of Stamford and Warrington, [1912] 1 Ch. 343. See NOTES, p. 656.

SALES

IMPLIED WARRANTIES

WHOLESOMENESS OF FOOD FOR ANIMALS. - In an action to recover the price of food for animals, the defendant pleaded by way of recoupment that the food was decayed and unwholesome for animals. Held, that the plea is bad. Dulaney v. Jones, 57 So. 225 (Miss.).

Ordinarily the implied warranty of soundness of food applies only when it is intended for human consumption. Lukens v. Freiund, 27 Kan. 664. But see Houston Cotton Oil Co. v. Trammell, 72 S. W. 244, 247 (Tex.). This accords with the statute of 51 Hen. 3, from which the doctrine arose. See Burnby v. Bollett, 16 M. & W. 644, 653 et seq. The rule rests upon the public policy to preserve health. See Hoover v. Peters, 18 Mich. 51, 55. Recovery upon an implied warranty of fitness might be allowed in some states if the seller knew the use to which the goods were to be put. Preist v. Last, [1903] 2 K. B. 148; Houston Cotton Oil Co. v. Trammell, supra; MASS. ACTS AND RESOLVES OF 1908, c. 237, § 15. However, in Mississippi the older commonlaw rule seems still to prevail and there is no warranty if the goods are specified. See Otto v. Alderson, 18 Miss. 476. Cf. National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92.

SALES RIGHTS AND REMEDIES OF SELLER - MEASURE OF DAMAGES FOR REFUSAL OF BUYER TO ACCEPT STOCK. - The defendant contracted to repurchase stock from the plaintiff at par if it should discharge the plaintiff from its employment. The defendant discharged the plaintiff and refused to take the stock. Held, that the plaintiff can recover the par value of the stock. Strait v. Northwestern Steel & Iron Works, 134 N. W. 387 (Wis.).

The decision rests mainly upon two Massachusetts cases of executory contracts for the sale of stock. Thorndike v. Locke, 98 Mass. 340; Pearson v. Mason, 120 Mass. 53. It is interesting to notice that the case upon which these are rested is one of an executed contract in which title had passed, and which expressly repudiates such a result where title has not passed. Thompson v. Alger, 53 Mass. 428. There is in some jurisdictions an established doctrine that the seller of personalty may have, even at law, this remedy, which amounts to specific performance. Dustan v. McAndrew, 44 N. Y. 72; Osgood v. Skinner, III Ill. App. 606. And, consistently enough, a court has even ordered that the seller keep the stock until the judgment is satisfied. Finlayson v. Wiman, 84 Hun (N. Y.) 357, 32 N. Y. Supp. 347. Several jurisdictions allow this specific performance only where the goods are of a variety not readily salable and to which, therefore, a market price cannot readily be fixed. See WILLISTON, SALES, 564. And some cases seem to rely upon the fact that a specified block of stock is meant. Pittsburgh Hardware & Home Supply Co. v. Brown, 174 Fed. 981; Reynolds v. Callender, 19 Pa. Super. Ct. 610. Others, however, allow it as a matter of course, apparently ignoring any limitation of the rule. Osgood v. Skinner, supra; Finlayson v. Wiman, supra.

TAXATION EXEMPTIONS - Property UseD EXCLUSIVELY FOR CHARITABLE PURPOSES. A fraternal order owned a clubhouse open only to members. In one part of the clubhouse meals and drinks were sold, and the net proceeds devoted to charitable work among the members and the public at large. The state constitution provided that "property used exclusively for . charitable purposes . . . shall be exempt from taxation." Held, that the clubhouse is exempt. Salt Lake Lodge v. Groesbeck, 120 Pac. 192 (Utah).

For purposes of exemption from taxation fraternal orders are generally regarded as charities. Plattsmouth Lodge v. Cass County, 79 Neb. 463, 113 N. W. 167; Hibernian Benevolent Society v. Kelly, 28 Or. 173, 42 Pac. 3. Contra, City of Bangor v. Rising Sun Lodge, 73 Me. 428. But where only "purely public charities" are exempt, fraternal orders which confine their benefactions to their own members are taxable. Philadelphia v. Masonic Home, 160 Pa. St.

572, 28 Atl. 954; Morning Star Lodge v. Hayslip, 23 Oh. St. 144. And societies whose chief purpose is mutual benefit or mutual insurance are not regarded as charities. Young Men's Protestant, etc. Society v. City of Fall River, 160 Mass. 409, 36 N. E. 57; Supreme Lodge v. Board of Review of Effingham County, 223 Ill. 54, 79 N. E. 23. But conceding that the fraternal order in the principal case is a charity, its property is not exempt from taxation unless it be "used exclusively for charitable purposes." If part of a building is rented for business uses, that part is taxable even though the profits are devoted to charity. City of Indianapolis v. Grand Master, 25 Ind. 518; Massenbury v. Grand Lodge, 81 Ga. 212, 7 S. E. 636. Nor is a building exempt if the charity itself uses it for profit. American Sunday School Union v. City of Philadelphia, 161 Pa. St. 307, 29 Atl. 26; Sisters of Peace v. Westervelt, 64 N. J. L. 510, 45 Atl. 788. On the other hand, the fact that some income is derived from the use of the property does not render it taxable, if the use be a mere incident of the charitable purpose for which it is maintained. House of Refuge v. Smith, 140 Pa. St. 387, 21 Atl. 353; Franklin Square House v. City of Boston, 188 Mass. 409, 74 N. E. 675. But it would seem that the use in the principal case does not fall into this latter category. Cf. Trustees of Green Bay Lodge v. City of Green Bay, 122 Wis. 452, 100 N. W. 837; Lacy v. Davis, 112 Ia. 106, 83 N. W. 784.

TAXATION - PROPERTY SUBJECT TO TAXATION - TAXATION OF FOREIGN CORPORATIONS ENGAGED IN INTERSTATE COMMERCE. Under a constitutional provision, a Minnesota statute assessed on an express company, organized in New York and engaged in interstate commerce, "a tax of six per cent upon its gross receipts for business done between points within this state, in lieu of all taxes upon its property." Held, that this is not void as a regulation of interstate commerce. United States Express Co. v. State of Minnesota, U. S. Sup. Ct., Feb. 19, 1912.

An Oklahoma statute assessed on a non-resident express company engaged in interstate commerce a tax of three per cent on such proportion of its gross receipts, "from every source whatsoever," as the portion of its business done within the state bore to the whole of its business, "in addition to the taxes levied and collected upon an ad valorem basis upon the property and assets of such corporation." Held, that the tax is void as a regulation of interstate commerce. Meyer v. Wells Fargo & Co., 32 Sup. Ct. 218.

The above two cases strikingly illustrate the theory of the United States Supreme Court in cases of this sort. For a discussion of the principles involved, see 25 HARV. L. Rev. 95.

OF

TRUSTS CREATION AND VALIDITY VOLUNTARY DECLARATION TRUST IN LAND WITHOUT TRANSMUTATION OF POSSESSION. The defendant, being owner of land, made a voluntary written declaration of trust of it in favor of another. Held, that this creates an enforceable trust. Schumacher v. Dolan, 134 N. W. 624 (Ia.).

In 1811 Lord Eldon, apparently without regarding the previous law, enforced a voluntary declaration of trust of a chose in action. Ex parte Pye, 18 Ves. Jr. 140. This case was long regarded as anomalous. See Scales v. Maude, 6 De G. M. & G. 43, 51; Jones v. Lock, L. R. 1 Ch. 25, 28; 9 HARV. L. REV. 213. But on its facts it is fairly defensible. A chose in action is in general incapable of delivery, and a voluntary assignment of a chose in action was not enforceable in equity, so that by this means alone could there be a valid gift of a chose in action. See Bond v. Bunting, 78 Pa. St. 210, 213, 218. The doctrine was soon extended, however, to voluntary declarations of trust in tangible property. Thorpe v. Owen, 5 Beav. 224. And the text-books with uniformity make no distinction between lands and personalty. See LEWIN, TRUSTS, 12 ed., 71, 72; I PERRY, TRUSTS AND TRUSTEES, 6 ed., § 96; 3 POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 997. But no English case has been found applying this doctrine to freeholds. Con

tra, DOCTOR & STUDENT, Dialogue II, ch. XXIII. But cf. Steele v. Waller, 28 Beav. 466. The better reasoned cases in this country have refused to apply the doctrine to land. Pittman v. Pittman, 107 N. C. 159, 12 S. E. 61; Thompson v. Branch, Meigs (Tenn.) 390. Cf. Yarborough v. West, 10 Ga. 471. The principal case, however, has two square decisions to support it. Carson v. Phelps, 40 Md. 73; Leeper v. Taylor, 111 Mo. 312, 19 S. W. 955. Cf. Lynch v. Rooney, 112 Cal. 279, 44 Pac. 565. And that this will become the recognized rule in this country seems probable. See Crompton v. Vasser, 19 Ala. 259, 266; Reilly v. Whipple, 2 S. Č. 277, 282.

USURY FORFEITURES FEDERAL STATUTE: LIMITATION OF ACTION TO RECOVER PENALTY. A statute provided that in case a greater than lawful rate of interest has been paid, "the person by whom it has been paid . . . may recover back . . . twice the amount of interest thus paid, . . . provided such action is commenced within two years from the date when the usurious transaction occurred." Under this statute the plaintiff sued to recover twice the amount of money he had paid to the defendant, a national bank, as unlawful interest, more than two years before the bringing of the action. The principal debt had been paid within two years before the bringing of the action. Held, that the plaintiff cannot recover. McCarthy v. First National Bank, 32 Sup. Ct. 240, affirming 23 S. D. 269, 121 N. W. 853.

Since the right of action is based upon the payment of unlawful interest, this is clearly the "usurious transaction" referred to by the statute. Daingerfield National Bank v. Ragland, 181 U. S. 45, 21 Sup. Ct. 536. Cf. Pritchard v. Meekins, 98 N. C. 244, 3 S. E. 484. Some courts have held that the cause of action does not accrue until a greater amount than the principal debt and legal interest has been paid, on the ground that the law will not apply payments so made to the illegal interest and that the creditor has a locus pænitentiæ until the excess amount has been paid. First National Bank v. Denson, 115 Ala. 650, 22 So. 518. Cf. McBroom v. Scottish Mortgage, etc. Co., 153 U. S. 318, 14 Sup. Ct. 852. But there seems to be no warrant for an application of payments by the law to a purpose inconsistent with the appropriation the parties have themselves made. So in an action by a national bank to recover the principal, the debtor cannot be credited with the payments of usurious interest he has already made. First National Bank v. Childs, 133 Mass. 248; Haseltine v. Central Bank of Springfield, 183 U. S., 132, 22 Sup. Ct. 50. Nor is there any reason for a locus pænitentiæ after the act has been done. In the principal case the Supreme Court finally settles the question by a decision which is sound on principle and is supported by the weight of authority. Lebanon National Bank v. Karmany, 98 Pa. St. 65; First National Bank of Dorchester v. Smith, 36 Neb. 199, 54 N. W. 254.

WITNESSES

COMPETENCY IN GENERAL - EXCEPTIONS TO DISABILITY OF HUSBAND AND WIFE. — In a prosecution under a statute against a husband for living on the earnings of his wife's prostitution, the wife was tendered by the prosecution to testify against her husband. Held, that she could not be admitted as a witness. Director of Public Prosecutions v. Blady, 28 T. L. R. 193 (Eng., K. B. D., Jan. 18, 1912). See NOTES, p. 658.

WITNESSES COMPETENCY IN GENERAL · PRIVILEGE OF HUSBAND OR WIFE WHERE INCOMPETENCY REMOVED BY STATUTE. A statute provided that in the case of certain offenses, a husband or wife might be called to testify for or against the other without the consent of the party charged. Held, that such a witness cannot be compelled to give evidence against his will. Leach v. Director of Public Prosecutions, 132 L. T. J. 416 (Eng., H. L., Feb. 26, 1912). See NOTES, p. 658.