LIMITATION OF ACTION- ACCRUAL OF ACTION - EFFECT OF APPEAL ON RUNNING OF STATUTE OF LIMITATIONS. A suit was brought for money paid upon an existing consideration which later failed through judicial action setting the transaction aside. The statute of limitations required suit for such money to be brought within three years from the date of the failure of the consideration (1877 INDIAN LIMITATION ACT, Art. 97). This action was brought within three years of the dismissal of an appeal from the decree setting aside the original transaction, but more than three years from the decree of the lower court. Held, that the action is barred. Boid v. Chowdhury, 26 Madras L. T. R. 131 (Privy Council).

Where an appeal has the effect of suspending the judgment from which appeal is taken, the running of the statute of limitations on a cause of action arising out of the judgment should likewise be suspended. Irvine v. Bankard, 181 Fed. 206; Bowen v. Lovewell, 119 Ark. 64, 177 S. W. 929; Donovan v. Dickson, 37 No. Dak. 404, 164 N. W. 27. If a stay or supersedeas bond or other security named in the statute be given, an appeal will suspend the original judgment. Hubbard v. Bank of Los Angeles, 120 Cal. 632, 52 Pac. 1070; Coombs v. Barker, 33 Mont. 74, 81 Pac. 737. And even though no security is given, this is true under some statutes. Sunter v. Sunter, 204 Mass. 448, 90 N. E. 561; Merrifield v. Piano Co., 238 Ill. 526, 87 N. E. 379. But in general, if no security be given, a judgment is not affected by an appeal. In re Nat'l Metal Co., 155 Fed. 690; Ex parte Meyer, 209 N. Y. 59, 102 N. E. 606. And in the principal case, the court found this to be the case under the Indian law, The cause of action accrued to the plaintiff at the time of the original decree. Since that decree is enforceable notwithstanding the appeal, there is no reason why the statute of limitations should be suspended during the appeal. Delay v. Ÿost, 59 Kan. 496, 53 Pac. 482; Bank of Stockham v. Weins, 12 Okla. 502, 71 Pac. 1073; Howard Ins. Co. v. Silverberg, 94 Fed. 921.

PROXIMATE CAUSE — MUNICIPAL CORPORATIONS — NOTICE OF ONE DEFECT IN SIDEWALK PUTS CITY ON NOTICE OF ANOTHER DEFECT. - An inspector of the appellant city noticed a small hole chipped in the end of a plank in a board walk, and ordered a new plank inserted. The plank, though apparently sound except for the hole, was rotten in the middle; and three days after the inspector's order the respondent was hurt by stumbling through it. The jury found the city negligent in delaying to insert the new plank. Held, that judgment for the respondent be affirmed. City of Winnipeg v. Einarson, 50 D. L. R. 440 (Manitoba).

The hole was a defect which the city was under a duty to repair. Upham v. City of Boston, 187 Mass. 220, 72 N. E. 946. Failure to repair the hole after notice was negligence in the performance of that duty. And it may be assumed from the inspector's order that the reasonable way to repair it was by inserting a new plank. It follows that if the city had done its duty in repairing the hole it would have discovered the defect in the center of the plank. Under these circumstances the city is chargeable with notice of the latent defect in the center, and hence not to repair it constituted negligence. Dallas v. McAllister, 39 S. W. (Tex.) 173. This negligence was a proximate cause of the injury; for the only intervening cause between it and the injury was the act of the plaintiff in stepping on the plank, and that act was surely forseeable. In other words, the city by its negligence took the risk that some one would step on the plank, and the city must be liable for the direct result. See Joseph H. Beale, "The Proximate Consequences of an Act," 33 HARV. L. REV. 633, 650.

REMOVAL OF CAUSES SEPARABLE CONTROVERSY FRAUDULENT JOINDER As Ground for Removal from State tO FEDERAL Courts. In an action brought in the state court against a non-resident corporation and its resident

employee the complaint alleged that the plaintiff had been injured by dynamite caps owned by the corporation and negligently exposed by the employee who was storekeeper. The non-resident defendant obtained a removal to the federal court on the ground of fraudulent joinder. The plaintiff moved to remand, supporting his motion with affidavits of his good faith but without a statement of the grounds for his belief. Held, that the motion be denied. Zigich v. Tuolumne Copper Mining Co., 260 Fed. 1014 (Dist. Ct. Mont.).

The plaintiff alleged that while in the employ of the non-resident defendant corporation he was ordered by the foreman, the resident defendant, to go up a telegraph pole, where he was injured by contact with a high-power wire because of the failure of the corporation to provide him a safe place to work and the failure of the foreman to warn him. Because of diverse citizenship the corporation sought a removal on the grounds that the controversies were separable, and that the joinder was fraudulent. Held, that the removal be denied. Postal Telegraph-Cable Co. v. Puckett, 101 S. E. 397 (Ga.).

For a discussion of these cases, see NOTES, p. 970, supra.

RESTRICTION AND RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY · RESTRICTIONS IN PRICE ON RESALE. - A corporation engaged in the manufacture of accessories for automobile tires under letters patent sold its product to jobbers under contracts establishing the resale price of these articles, and refused to sell to any jobber who would not enter into such agreements and adhere to the uniform resale prices fixed. Upon these facts, the corporation was indicted for engaging in a combination rendered criminal by Section 1 of the Sherman Anti-Trust Law. The District Court for the Northern District of Ohio sustained a demurrer to the indictment. A writ of error was brought under the Criminal Appeals Act (34 Stat. AT L. 1246). Held, that the judgment be reversed. United States v. A. Schrader's Son, Inc., U. S. Sup. Ct., October term, 1919, No. 567.

For a discussion of this case, see NOTES, p. 966, supra.

RESTRAINT OF TRADE SHERMAN ANTI-TRUST LAW THE STEEL CORPORATION CASE. - The United States brought suit under the Sherman AntiTrust Act against the United States Steel Corporation, asking for dissolution of that corporation and certain of its subsidiaries on the ground that they constituted a monopoly in restraint of trade. Held, that the bill be dismissed. United States v. United States Steel Corporation, U. S. Sup. Ct., October term, 1919, No. 6.

For a discussion of this case, see NOTES, page 964, supra.

RULE AGAINST PERPETUITIES CHARITABLE GIFTS - REMOTENESS WHERE THERE IS NO PRECEDING GIFT. Personalty was bequeathed "to the first . . . Orphans' Home . . . built in X," with the provision that "should one of the Homes not be founded there at the time of my decease," the executors should invest the funds "until such time as one of such institutions shall be founded." The executors brought a bill for the construction of the will, that the validity of the gift might be determined. Held, that the gift was void. Re Schjaastad Estate, 50 D. L. R. 445 (Sask.).

A gift over to a charity from an individual, on a contingency too remote under the rule against perpetuities, is void. In re Johnson's Trusts, L. R. 2 Eq. 716; Smith v. Townsend, 32 Pa. St. 434. But if the first taker is also a charity, the gift is held valid. Christ's Hospital v. Grainger, 16 Sim. 83; MacKenzie v. Trustees, 67 N. J. Eq. 652, 669, 61 Atl. 1027, 1034. See 8 HARV. L. REV. 211. This doctrine might be applied with equal logic where there is no preceding gift. Yet it is here well settled that the charity may not take if the contingency upon which it is to vest is too remote. In re Stratheden, [1894]

I

3 Ch. 265; Kingham v. Kingham, [1897] 1 I. R. 170; Girad Trust Co. v. Russell, 179 Fed. 446. If, however, an immediate gift to charity has been made, though its application is postponed indefinitely, courts adopting the cy-près doctrine sustain the gift. Chamberlayne v. Brockett, L. R. 8 Ch. App. 206; Brigham v. Brigham Hospital, 134 Fed. 513; Jones v. Habersham, 107 U. S. 174. And see GRAY, RULE AGAINST PERPETUITIES, 3 ed., § 615. Since the courts look favorably upon charitable gifts, they will search industriously for an intent to vest the gift immediately. Re Gyde, 79 L. T. R. 261; Brigham v. Brigham Hospital, supra. Conceivably, where, as in the principal case, the condition is the establishment of the charitable institution, the funds accumulating meanwhile for its sole benefit, an immediate gift for charitable purposes might be made out. Cf. Jones v. Habersham, 107 U. S. 174, 191. But the court's conclusion that the designation of a specific institution as legatee precludes such a construction seems sound. The gift failing, the next of kin were rightly held entitled. In re White's Trusts, 33 Ch. Div. 449; Fowler v. Attorney General, [1909] 2 Ch. 1; Brooks v. Belfast, 90 Me. 318.

STATUTES INTERPRETATION SOLDIERS' AND SAILORS' CIVIL RELIEF ACT. In an action for injuries alleged to have been caused by the negligence of defendant's motorman, the defendant moved for a continuance because the motorman, its sole witness, was in military service in France. The motion was refused on the ground that judgment for the plaintiff would not prejudice the rights of the motorman protected by the Soldiers' and Sailors' Civil Relief Act. Held, that the motion be granted. Ilderton v. Charleston Consolidated Railway and Lighting Co., 101 S. E. 282 (S. C.).

A judgment for the plaintiff was reversed and remanded. A Texas statute provided that if this occurred a mandate must be taken out within one year to save the cause. (1913 MCEACHIN'S TEX. CIV. STAT. ANN., Art. 1559.) The plaintiff was in the military service during that period and now moves that issuance of the mandate be ordered. The defendant demurs on the ground that the state statute is mandatory and that the Civil Relief Act is inapplicable. Held, that the motion be granted. Kuehn v. Neugebauer, 216 S. W. 259 (Tex.). The federal Soldiers' and Sailors' Civil Relief Act was enacted to suspend temporarily all legal proceedings which might prejudice the civil rights of persons in military service during the war. See ACT OF CONGRESS, March 8, 1918, Art. 1, § 100. The right to stay proceedings was made discretionary with the court. Konkel v. State, 168 Wis. 335, 170 N. W. 715; State v. Klene, 212 S. W. (Mo.) 55. See ACT OF CONGRESS, March 8, 1918, ART. 2, § 201. Hence if the party in service could still protect his interests, the court need not interfere. Dietz v. Treupel, 170 N. Y. Supp. (App. Div.) 108. In some states similar statutes were passed which, however, provided that suspension of proceedings should be absolute and not discretionary. Thress v. Zemple, 174 N. W. (N. D.) 85. Such statutes were declared constitutional as not impairing the obligation of contracts. Pierrard v. Hoch, 184 Pac. (Ore.) 494. Similar legislation passed during the Civil War was held constitutional. Breitenbach v. Bush, 44 Pa. St. 313; Bruns v. Crawford, 34 Mo. 330. The federal act prohibited eviction of dependents of a soldier, foreclosure of mortgages on his property except under an order of court, and similar proceedings detrimental to his interests. Gilluly v. Hawkins, 182 Pac. (Wash.) 958; Hoffman v. Charleston Five Cents Savings Bank, 231 Mass. 324, 121 N. E. 15; Vaughn v. Charpiot, 213 S. W (Tex.) 950. But the benefit of the act was limited strictly to persons in the service. Howie Mining Co. v. McGary, 256 Fed. 38; Harrell v. Shealey, 100 S. E. (Ga.) 800. The principal cases seem rightly decided. The view of the South Carolina court that the judgment in this suit would be some evidence of negligence in a subsequent suit by the company against the motorman for reimbursement is sufficient ground for a continuance under the broad terms of

the act. See Logan v. Atlanta R. R. Co., 82 S. C. 518, 523, 64 S. E. 515, 516; Boston & Me. R. R. v. Brackett, 71 N. H. 494, 496, 53 Atl. 304, 305.

TELEGRAPH AND TELEPHONE COMPANIES CONTRACTS AND STIPULATIONS LIMITING LIABILITY - EFFECT OF THE Mann-ElkinNS ACT UPON LIMITATION OF LIABILITY FOR INTERSTATE MESSAGES. A telegraph company negligently made an error in the transmission of an interstate unrepeated message which was sent under an agreement that in case of error, whether due to negligence or other causes, the telegraph company should not be liable for more than the amount paid for the transmission. Under the law of Mississippi the agreement was void. The Mann-Elkins Act of 1910 (36 Stat. at L. 539) brought telegraph companies engaged in interstate business within the provisions of the Act to Regulate Commerce. Held, that state laws have thereby been rendered inoperative and that the agreement is valid. Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co., U. S. Sup. Ct., October Term, 1919, No. 91.

A statute of Indiana provided for a penalty to be recovered by the sender for delays in the transmission of unrepeated telegrams. Held, that the statute is inoperative upon interstate messages. Western Union Telegraph Co. v. Boegli, U. S. Sup. Ct., October Term, 1919, No. 83.

Many states have held agreements limiting liability void as attempts by telegraph companies to contract themselves out of their common-law liability for negligence. Ayer v. W. U. Tel. Co., 79 Me. 493, 10 Atl. 495; W. U. Tel. Co. v. Robertson, 59 Tex. Civ. App. 426, 126 S. W. 629. See Emlin McLain, "Limitation of Liability for Negligence," 28 HARV. L. Rev. 550, 561. See also 30 HARV. L. REV. 391. Other states and the federal courts have held them reasonable and valid. Wheelock v. Postal Tel.-Cable Co., 197 Mass. 119, 83 N. E. 313; Weld v. Postal Tel.-Cable Co., 199 N. Y. 88, 92 N. E. 415. Primrose v. W. U. Tel. Co., 154 U. S. 1. But state policy, in the absence of Congressional action, remained unaffected by the federal doctrine. W. U. Tel. Co. v. James, 162 U. S. 650; W. U. Tel. Co. v. Crovo, 220 U. S. 364. In 1910 Congress extended the Interstate Commerce Act to include telegraph companies engaged in interstate business and provided that messages might be classified into repeated and unrepeated. 36 STAT. AT L. 544. Some courts have construed this statute to apply only to rates and not to deprive the states of power to apply their own laws of liability. Des Arc Oil Mill Co. v. W. U. Tel. Co., 132 Ark. 335, 201 S. W. 273; Bowman & Bull Co. v. Postal Tel.-Cable Co., 124 N. E. (Ill.) 851. The principal cases apparently go on the ground that the statute appropriates the whole field to the federal courts, without positively enacting the validity of agreements limiting liability. The Supreme Court is thus left free to apply its own view of the common law. Adams Express Co. v. Croninger, 226 U. S. 491. A third and preferable view, reaching the same ultimate result, is that the statute positively enacts the validity of the classification of messages into repeated and unrepeated for purposes of limiting liability. Gardner v. W. U. Tel. Co., 231 Fed. 405; W. U. Tel. Co. v. Bilisoly, 116 Va. 562, 82 S. E. 91.

WILLS · CONSTRUCTION - RULE IN SHELLEY'S CASE - WHETHER ISSUE A WORD OF PURCHASE OR OF LIMITATION - EFFECT OF STATUTE ABOLISHING NECESSITY OF WORDS OF LIMITATION TO PASS A FEE. A testator devised land upon trust for A for life, and upon her death then for her lawful issue, and if there be more than one, as tenants in common, with a gift over if there be no lawful issue. A statute passed prior to the making of the will provided that in devises of land words of limitation should no longer be necessary to pass the fee. (1890 VICTORIAN STAT. 3620.) The question was whether A took a life estate or an estate tail. Held, that A took a life estate. In re Cust, [1919] V. L. R. 693 (Australia).

The rule in Shelley's case has no application unless the words used in the

remainder are words of limitation as distinguished from words of purchase. Co. LIT. 319 b. Cf. A. M. Kales, "Application of Rule in Shelley's Case,' 28 L. QUART. REV. 148, 152. But whether they are words of limitation or of purchase is a question of construction. Jordan v. Adams, 9 C. B. (N. S.) 483; Arnold v. Muhlenberg College, 227 Pa. St. 321, 76 Atl. 30. See I TIFFANY, REAL PROP., § 132. In devises of land, "issue" has generally been treated as embracing descendants of every degree of the ancestor, and consequently as synonymous with "heirs of the body. Roe v. Grew, 2 Wils. 322; Grimes v. Shirk, 169 Pa. St. 74; Kleppner v. Laverty, 70 Pa. St. 70. This is true even though the issue are to take as tenants in common. See 2 JARMAN, WILLS, 6 Eng. ed., 1944. The reason given is that this is the only way to carry the inheritance to the issue, since if they took by purchase they would take only for their lives. Jackson v. Calvert, 1 J. & H. 235. But where words of limitation are superadded which indicate that descent is to be traced, not from the ancestor, but from a new stock, "issue" will be construed as a word of purchase. Hamilton v. West, 10 Ir. Eq. Rep. 75; Lees v. Mosley, 1 Y. & C. 589. Cf. Archer's Case, I Co. 66 b. And likewise, if the context plainly shows that by "issue" the testator meant "children." Ryan v. Cowley, Ll. & G. t. Sugden, 7. Cf. Jordan v. Adams, supra. Where, as in the principal case, a statute does away with the necessity of using words of limitation to pass the fee, the reason for construing "issue" as a word of limitation no longer exists. Accordingly, the issue, whether now treated as including only children or all the lineal descendants, would take by purchase a fee simple by way of remainder, and the ancestor, therefore, a life estate only. See 2 JARMAN, WILLS, 6 Eng. ed., 1950, 1951; 27 HARV. L. REV. 673. This result has already been reached in this country and would seem to be sound. Ward v. Jones, 40 N. C. 400.

WILLS UNATTACHED SHEETS SIGNATURE AT END PARTIAL REVOCATION. A sealed envelope marked "Will of John Seiter" was handed by Seiter to his niece with the declaration that it was his will. In the envelope were four papers which evidence tended to show were the remnants of an original will after pieces had been cut out by the deceased himself. One page contained words expressing the animus disponendi and a legacy marked "first"; another page contained a residuary clause marked "eighth"; the third paper, an attestation clause; while on the fourth was nothing but the signature and seal of the deceased and signatures of witnesses. There was no reference to the other papers in any of the pages, nor was there continuity of language from sheet to sheet, each expressing a completed thought. Held, that probate was properly refused. In re Seiter's Estate, 108 Atl. 614 (Pa.).

In Pennsylvania and some other states, pro tanto revocation is allowed. Tomlinson's Estate, 133 Pa. St. 245, 19 Atl. 482; Re Kirkpatrick, 22 N. J. E. 463. See PURDON'S DIGEST (Pa.), 5130 ff. (P. L. 250, 409). See also 23 HARV. L. REV. 558. It may be accomplished by cutting out portions of the paper with intent to revoke the legacies set forth therein. In re Brown, 1 B. Mon. (Ky.) 56; Nelson's Goods, Ir. Rep. 6 Eq. 569. But before any doctrine of revocation can be applied a complete will must be shown to have existed. See PURDON'S DIGEST, supra. Of this there was not sufficient evidence in the principal case. The papers of themselves could not constitute a will in Pennsylvania, for the statutory requirement of a signature "at the end thereof" was probably not satisfied. Cf. Stinson's Estate, 228 Pa. St. 475, 77 Atl. 807. See PURDON'S DIGEST (Pa.), 5120, 5122 (P. L. 249). See also 13 HARV. L. REV. 686. Without such a statute it would seem that the papers might constitute a will. The physical position of the signature would be immaterial. Gale v. Freeman, 153 Wis. 337, 141 N. W. 226; Le Mayne v. Stanley, 3 Lev. 1. Physical connection from sheet to sheet without any lack of internal coherence is sufficient to bring pages together into a will. Palmer v. Owen, 229 Ill. 115,