under a long lease authorized by the state, and that the discrimination was practised by the lessee alone. Held, that the plaintiff cannot recover. Moser v. Philadelphia, H. & P. R. Co., 82 Atl. 362 (Pa.). See NOTES, p. 726.

RESTRAINT OF TRADE SHERMAN ANTI-TRUST LAW REGULATION OF MONOPOLY. The defendant Terminal Railroad Association of St. Louis, owned by eight of twenty-four competing railroads, was a combination of independent terminal systems. By reason of topographical conditions, complete control over all possible terminal facilities was obtained. The terminal company consistently made arbitrary charges. The United States brought a bill in equity to enforce the provisions of the Sherman Act. Held, that the terminal association be not dissolved, if, (1) it admit any existing or future railroad to joint ownership and control, (2) provide for use of the terminal facilities on reasonable terms to railroads, and (3) cease its practices of arbitrary charges. United States v. Terminal R. Association of St. Louis, 32 Sup. Ct. 507. See NOTES, p. 717.

RULE AGAINST PERPETUITIES VESTING WILL BE ACCELERATED.

TIME OF VESTING TOO REMOTE: WHETHER - A testator left the residue of his estate to trustees, the same to vest in his grandchildren when the youngest of his living or after-born grandchildren arrived at the age of forty. An after-born grandchild was the youngest, and arrived at the age of twenty-one. The testator's children were still living. Held, that the grandchildren are not yet entitled to the estate. Barker v. Eastman, 82 Atl. 166 (N. H.).

This case is the result of a former decision under the same will. Edgerly v. Barker, 66 N. H. 434, 31 Atl. 900. It was there decided that this limitation to the grandchildren was not void, and the court expressed the opinion that the property would vest in the grandchildren when the youngest arrived at twentyone, which would be at a period not too remote. See Edgerly v. Barker, 66 N. H. 434, 475, 31 Atl. 900, 916. Though this event has happened, yet the court in the principal case states that the property will not vest until the youngest grandchild attains forty, or the children of the testator die, whichever event happens first. No other court has followed the New Hampshire rule as to remoteness. Cf. Hussey v. Sargent, 116 Ky. 53, 75 S. W. 211. See 9 HARV. L. Rev. 242.

SALES

CONDITIONAL SALES EFFECT ON SELLER'S TITLE OF TRANSFER OF NOTES GIVEN FOR PRICE. A seller sold an automobile on condition that title should remain in him until the promissory notes given for the price should be paid. The seller transferred the notes to the plaintiff, who, on the notes not being paid, sued in replevin for the automobile. Held, that the plaintiff can recover. Zederman v. Thomson, 121 Pac. 609 (N. M.).

For a discussion of the principles involved, see 25 HARV. L. REV. 462.

SPECIFIC PERFORMANCE - PARTIAL PERFORMANCE WITH COMPENSATION REFUSAL OF WIFE TO RELEASE INCHOATE RIGHT OF DOWER. In a suit for specific performance, the plaintiff joined the defendant's wife who was not a party to the contract. Held, that she is a proper party, for if she refuses to release dower and the plaintiff elects to accept partial performance with compensation, her inchoate right of dower must be valued and deducted from the purchase price. O'Malley v. Miller, 134 N. W. 840 (Wis.). See NOTES, P. 731.

TRADE UNIONS - INDUCING WORKMEN TO LEAVE OTHERWISE THAN BY STRIKE PAYMENT OF MONEY TO NON-UNION EMPLOYEES. The officials of a labor union ordered a strike to force the employer to recognize the union. Members of the union paid non-union employees bonuses to induce them to

leave the employment. Held, that the employer is entitled to an injunction. Tunstall v. Stearns Coal Co., 192 Fed. 808 (C. C. A., Sixth Circ.).

For a discussion of the principles involved, see 20 HARV. L. Rev. 267, 444; 21 HARV. L. REV. 635; 22 HARV. L. REV. 234.

TRUSTS FOLLOWING TRUST PROPERTY — CESTUI'S RIGHTS WHEN TRUSTEE BUYS PROPERTY PARTLY WITH TRUST FUNDS. - The plaintiff gave her husband money to be used in part payment of the purchase price of land, there being an agreement that title was to be taken in the plaintiff. The husband took the title in his own name and incurred debts after the purchase. Held, that the plaintiff is not entitled to payment out of the proceeds of the land as against her husband's creditors. Miller v. McLin, 143 S. W. 1008 (Ky.).

Where a wife provides the entire purchase price of land to which her husband takes title, he holds it in trust for her. Wright v. Wright, 242 Ill. 71, 89 N. E. 789. When trust funds are mixed with the trustee's own money, and invested in a res, the decisions vary regarding the cestui's rights. The prevailing view is that there is, as against general creditors, a trust of an undivided share in the proportion in which the trust money contributed to the purchase. Faylor v. Faylor, 136 Cal. 92, 68 Pac. 482; Mayer v. Kane, 69 N. J. Eq. 733, 61 Atl. 374. Some states allow this only when the cestui stipulated for a distinct interest in the res. Leary v. Corvin, 181 N. Y. 222, 73 N. E. 984; McGowan v. McGowan, 14 Gray (Mass.) 119. The cases are numerous to the effect that when the mixed fund is deposited in a bank to the trustee's account, the cestui has an equitable charge on the res before the general creditors receive anything. In re Hallett's Estate, 13 Ch. D. 696; National Bank v. Insurance Co., 104 U. S. 54; City of Lincoln v. Morrison, 64 Neb. 822, 90 N. W. 905. This view has been reached in some states only when the trust property can be traced into some specific res. Lowe v. Jones, 192 Mass. 94, 78 N. E. 402. But since the trustee should not be allowed to make any profit from manipulating the trust money, on principle it seems that the cestui should have the option of a charge, or a trust of a proportionate part of the res. This view has some authority. Greene v. Haskell, 5 R. I. 447; Bitzer v. Bobo, 39 Minn. 18, 38 N. W. 609. Cf. Crawford v. Jones, 163 Mo. 577, 63 S. W. 838. See 2 HARV. L. REV. 28; 19 HARV. L. REV. 511. The cases make no distinction between subsequent and prior creditors, such as is relied on in the principal case to vary the general rule.

ENFORCEABILITY OF

VENDOR AND PURCHASER - REMEDIES OF VENDOR IMPLIED LIEN WHEN STATUTE OF LIMITATIONS BARS DEBT. — A. conveyed land to B., taking a note for the price. The note remaining unpaid, A.'s representative instituted suit to enforce a vendor's implied lien. The Statute of Limitations had run on the note. Held, that the lien may not be enforced. Shaylor v. Cloud, 57 So. 666 (Fla.).

A vendor of real estate who conveys without stipulating for security has usually an implied equitable lien on the property conveyed to secure the purchase price. Mackreth v. Symmons, 15 Ves. Jr. 329; Acton v. Waddington, 46 N. J. Eq. 16, 18 Atl. 356. Contra, Ahrend v. Odiorne, 118 Mass. 261. It may be enforced at any time when an action might be brought on the debt. Graves v. Coutant, 31 N. J. Eq. 763. Even if the debt is barred by some technical defense, as infancy or coverture, the lien is good. Crampton v. Prince, 83 Ala. 246, 3 So. 519. Cf. Smith v. Henkel, 81 Va. 524. See 2 WARVELLE, VENDORS, 2 ed., § 706. It has been held that the same is true of the Statute of Limitations, on the ground that the statute only bars the legal remedy and that the principle that a lien subsists after the debt is barred applies here. Hood v. Hammond, 128 Ala. 569, 30 So. 540; Baltimore & Ohio R. Co. v. Trimble, 51 Md. 99. Other courts argue that since the lien is but an incident of the debt

it cannot survive its principal. Borst v. Corey, 15 N. Y. 505; Waddell v. Carlock, 41 Ark. 523. Where the seller retains title his security outlives the debt. Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623; Phillips v. Adams, 78 Ala. 225. And where he conveys, expressly reserving a lien in the deed, courts have held likewise, regarding the transaction as an informal mortgage. Hull's Admr. v. Hull's Heirs, 35 W. Va. 155, 13 S. E. 49; Coles v. Withers, 33 Grat (Va.) 186. Contra, Chase v. Cartright, 53 Ark. 358, 14 S. W. 90. But since equity has discretion in limiting equitable rights, it seems proper in the case of an implied lien, which is so closely connected with the legal debt, to apply the analogy of the legal Statute of Limitations, and the weight of authority supports this view. See 2 JONES, LIENS, § 1099; 2 WARVELLE, VENDORS, 2 ed., § 709. But see WOOD, LIMITATIONS, 3 ed., § 232.

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WATERS AND WATERCOURSES - APPROPRIATION AND PRESCRIPTION REASONABLENESS OF METHOD OF APPROPRIATION. - The plaintiff appropriated a certain portion of the flow of a river by means of a water-wheel. A subsequent appropriator built a dam which so backed up the water that there was no longer current enough to run the water-wheel. Held, that the plaintiff cannot recover. Schodde v. Twin Falls Land and Water Co., U. S. Sup. Ct., Apr. 1, 1912.

By decision and by constitutional provision water-rights in Idaho must be determined by the doctrine of prior appropriation. Drake v. Earhart, 2 Idaho 750, 23 Pac. 541; IDAHO CONST., Art. 15, § 3. By this doctrine the right of the first appropriator for a beneficial use is unquestionable. Coffin v. Left Hand Ditch Co., 6 Colo. 443; Morris v. Bean, 146 Fed. 423. The method of appropriation must be a reasonably economical one. Barnes v. Sabron, 10 Nev. 217; Court House, etc. Co. v. Willard, 75 Neb. 408, 106 N. W. 463. Yet methods ordinarily used are upheld as reasonable, even though wasteful. Barrows v. Fox, 98 Cal. 63, 32 Pac. 811; Rodgers v. Pitt, 129 Fed. 932. The principal case involves the question whether a method is unreasonable merely because it necessitates preserving the present height of the water. Previous authority would seem, on the whole, to negative this proposition. Cf. Cascade Town Co. v. Empire Water and Power Co., 181 Fed. 1011. See Proctor v. Jennings, 6 Nev. 83, 90. But cf. Natoma Water and Mining Co. v. Hancock, 101 Cal. 42, 35 Pac. 334. Later comers ought not to be allowed to force a prior appropriator to use very expensive methods of obtaining water. The use by him of a common method, like a water-wheel, can hardly be regarded as unreasonable. Yet unless it be so regarded, the decision of the principal case seems inconsistent with the appropriation theory.

WATERS AND WATER COURSES TIDAL WATERS NATURE OF STATE'S TITLE TO TIDE-FLOWED LANDS. - The state granted to the plaintiff railroad certain tide-flowed lands. Held, that the State Land Board should be enjoined from selling the lands to another to construct improvements in aid of navigation thereon, since the state has such an interest as can be passed to a private person. Corvallis & E. R. Co. v. Benson, 121 Pac. 418 (Or.).

For a discussion of the principles involved, see 18 HARV. L. REV. 341.

WILLS CONSTRUCTION · CONDITION NOT TO CONTEST WILL. A will provided that if any beneficiary entered suit to break it he should have five dollars only and his share should be divided among others. The plaintiff, one of the beneficiaries, unsuccessfully contested probate on the ground of forgery. Held, that there is no forfeiture. Rouse v. Branch, 74 S. E. 133 (S. C.).

In England it has been held that no public policy forbids enforcing a condition forfeiting a devise for contesting the testator's competency. Cooke v. Turner, 15 M. & W. 727. As to personalty, however, a contest based on prob

able cause will not be allowed to work a forfeiture. Powell v. Morgan, 2 Vern. 90; Morris v. Burroughs, 1 Atk. 399. But this applies only when there is no gift over. Cleaver v. Spurling, 2 P. Wms. 526; Stevenson v. Abington, 11 Wkly. Rep. 935. In this country, the tendency is to hold the condition valid without distinction between realty or personalty or as to gifts over. Thompson v. Gaut, 14 Lea (Tenn.) 310; Matter of Estate of Hite, 155 Cal. 436, 101 Pac. 443. Accordingly several courts have said that the law puts no restriction on a testator's right to make his bounty conditional upon abstention from litigation. Donegan v. Wade, 70 Ala. 501; Matter of Estate of Garcelon, 104 Cal. 570, 38 Pac. 414. Others, on the ground of public policy, to prevent wrongdoers in cases of undue influence or incompetency from dictating such terms as to stifle investigation, have arbitrarily construed all conditions not to apply to contests based on probable cause. Jackson v. Westerfield, 61 How. Pr. (N. Y.) 399; Friend's Estate, 209 Pa. St. 442, 58 Atl. 853. Whether or not this encroachment on freedom of disposition is warranted to its full extent, it would seem, as held in the principal case, to be justifiable in cases of alleged forgery, where the social interest is more obvious. But cf. Moran v. Moran, 144 Ia. 451, 123 N. W. 202.

WITNESSES

COMPETENCY

COMPETENCY AS TO PARTICULAR MATTERS OF HUSBAND AND WIFE TO BASTARDIZE ISSUE. A husband's petition for annulment of marriage having been granted, the wife filed a cross-petition for the support of a child, conceived before marriage but born thereafter. The husband offered to testify that he was not the father of the child. Held, that he is not a competent witness. Palmer v. Palmer, 82 Atl. 358 (N. J., Ct. Ch.).

Originally, the testimony of husband and wife to non-access for the purpose of bastardizing the wife's issue was admissible, but required corroboration in certain cases. Parish of St. Andrew v. Parish of St. Bride, 1 Sess. Cas. K. B. 117. See King v. Reading, Cas. t. Hardw. 79, 82. Lord Mansfield altered the rule to one of incompetency. See Goodright v. Moss, 2 Cowp. 591, 594. In this form it became well established both in England and in America. King v. Sourton, 5 A. & E. 180; Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654; Tioga County v. South Creek Township, 75 Pa. St. 433. The recent English cases, however, show some tendency to restore the earlier law. In re Yearwood's Trusts, 5 Ch. D. 545. But see Aylesford Peerage, 11 App. Cas. 1, 9. Furthermore the rule, if still in existence in England, is restricted to children begotten as well as born after marriage, which qualification does not exist in America. Poulett Peerage, [1903] App. Cas. 395; Rabeke v. Baer, 115 Mich. 328, 73 N. W. 242. In the principal case, the marriage having been annulled, the child would, in any event, be illegitimate at common law. Plant v. Taylor, 7 H. & N. 211. See Zule v. Zule, 1 N. J. Eq. 96, 100. A New Jersey statute, however, legitimizes the issue of annulled marriages. LAWS OF N. J. OF 1907, c. 216, § 1, cl. vi. The court is probably correct in holding that the rule, as laid down in America, applies to this situation. The strongest argument in favor of the rule, the unfairness to the child of permitting its parents to deprive it of its legal status seems as applicable here as elsewhere. But the rule itself is anomalous, and the arguments in its support are insufficient. See 3 WIGMORE, EVIDENCE, § 2064.

BOOK REVIEWS.

THE ORIGIN AND GROWTH OF THE AMERICAN CONSTITUTION. By Hannis Taylor. Boston: Houghton Mifflin Company. 1911. pp. xlii, 676.

The sub-title describes this book as "an historical treatise in which the documentary evidence as to the making of the entirely new plan of federal government embodied in the existing Constitution of the United States is, for the first time, set forth as a complete and consistent whole." The words "the entirely new plan" in this sub-title are an allusion to Alexis de Tocqueville's statement, quoted on p. 2, that our present Constitution is based upon a wholly novel theory which may be considered a great discovery in modern political science. . . that the Federal Government should not only dictate but should execute its own enactments."

It is the view of this book, expressed emphatically in very many places, that for this great discovery the world is indebted to an anonymous pamphlet by Pelatiah Webster, a well-educated merchant of Philadelphia. The pamphlet in question is reprinted in the appendix (p. 526), where it receives from Mr. Taylor the sub-title of "The epoch-making draft of Pelatiah Webster, of February 16, 1783, in which is embodied the first draft of the existing Constitution of the United States." It ought to be read. It contains many suggestions, some of which have not been followed. There is, for example, a suggestion that Congress should be aided by a chamber composed of merchants a view that may or may not have connection with Pelatiah Webster's own mercantile occupation. There is also a suggestion that in an emergency Congress should choose "a dictator who should have and exercise the whole power of both houses till such time as they should be able to concur in displacing him." There is also a suggestion that

"every person whatever, whether in public or private character, who shall by public vote or overt act disobey the supreme authority, shall be amenable to Congress, shall be summoned and compelled to appear before Congress and, on due conviction, suffer such fine, imprisonment, or other punishment as the supreme authority shall judge requisite."

Obviously Pelatiah Webster laid little emphasis on the division of powers into legislative, executive, and judicial; and obviously, too, he had no objection to bills of attainder and the like. Yet it would be a mistake to suppose that the whole of the pamphlet is composed of such matter as the extracts just now given. At the beginning are passages quite in harmony with the provisions ultimately inserted in the Constitution. The difficulty is in proving that in these matters Pelatiah Webster had priority.

Mr. Taylor does not appear to appreciate this difficulty fully. His readers, if acquainted with the subject, open his book with the impression that February 16, 1783, was a rather late date for anyone to form views indicating the inadequacy of the Articles of Confederation and the necessity of creating a central government of larger power. Bancroft has taught that at least ever since the appearance of Thomas Paine's Common Sense, in 1776, such ideas were common property.1 Certain it is that such views were elaborated before February 16, 1783. That is clear from an examination of the writings of Alexander Hamilton writings into which it is peculiarly worth while to look, because Hamilton, besides being a thinker of originality, was long General Washington's secretary, and as an incident of that service heard and read the views of many. On September 3, 1780, even before the Articles of Confederation had gone into effect, Hamilton wrote:

1 History of the Constitution, Vol. I, p. 10.