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The result reached by the court, although going far beyond the generally stated rule, that a child is treated as born when for his benefit, is certainly supported by cases arising under the rule against perpetuities (Gray on Perp., §§ 220-222), if not by others. An important case in this connection is that of Blosson v. Blosson, 2 D. J. & S. 665, where an opposite conclusion was arrived at. There, however, the phrase was "born and living," practically contrasting birth with life; and, besides, the consequences of regarding the unborn child as born would have resulted in postponing his enjoyment of certain property for years, a decided detriment, instead of benefit, to the child. The effect of that decision may, therefore, be limited to cases which would have an injurious influence on the interests of the infant en ventre sa mère. On the broader question of whether the child is to be treated as alive or not, when his interests are not concerned, there is little if any authority against In re Burrows. The cases under the rule against perpetuities are, perhaps, to be specially justified by the arbitrary nature of that rule and the better fulfilment of the testator's intention by such an extension of time. At the bottom, however, the notion is the same, and the refusal to include the living though unborn child under the words "issue or child living," in most cases, defeats the real meaning of the testator. Historically, perhaps, the law has looked at this from a different point of view, but, in logic and reason, would not the other attitude be the better, to consider the issue which by the course and order of nature is a living thing, as alive, unless some good grounds be shown, as in Blosson v. Blosson, for holding otherwise?

WHO CAN QUESTION A DEVISE TO A CORPORATION? - The Court of Appeals of Maryland has just been called upon to take sides on the question whether the power of a corporation to take by devise more property than is allowed it by its charter can be questioned by the testator's heirs, or only by the State. The court recognized the existence of the two doctrines and chose the latter, adopting the view of the United States Supreme Court in Fones v. Habersham (107 U. S. 174) rather than that of the New York court in In re McGraw (111 N. Y. 66). As a matter of authority, the choice was with the weaker side. In the Supreme Court case, the question seems to have been passed over without much consideration, for no reasons are given to support the proposition, and the authorities cited are not in point; moreover, the circumstance that the case did not require a decision on this subject confirms the impression that the court did not give the matter its serious consideration. In the New York case, on the other hand, the subject was thoroughly investigated; the point was squarely involved, over a million dollars were at stake, and counsel and court were profuse in their researches. The New York decision appears to have been followed by nearly every court which has had actually to pass upon the question; the judges who have expressed dicta to the contrary seem, like the Supreme Court, to have taken the matter largely for granted, and to have failed to make an important discrimination.

The confusion seems to arise from treating a taking by devise on the same footing as a taking by deed. Whether there is any true ground for the distinction may be a matter of dispute, but it will at least aid in a clearer understanding of the subject if the two questions are not treated as identical. As to a conveyance by deed where a corporation is forbidden to take the

property, it seems to be settled that such a transfer can be questioned by no one but the State. From this it is assumed that only the State can interfere in the carrying out of a devise. But why is it that a grantor cannot question his grant? He has seen fit to pass his property out of his own hands into the hands of the corporation, and he cannot afterwards be heard to say that the corporation was not capable of receiving the property. The law so far recognizes the existence of the corporation's power to take the grant, that it will not interfere to undo for the benefit of an individual that which the individual has voluntarily done. One should not say, perhaps, that the grantor is estopped from questioning the grant, because the elements of a true estoppel are lacking; but one can say that where such a transaction is executed, where everything has passed between the parties themselves, and all is completed, the law will not move itself to disturb the status quo.

When it comes to giving effect to a devise, the law is put in a far different position. Instead of being allowed to stay its hand, it is asked to take an active part in transferring to a creature of its own making property which it has forbidden that creature to take. Before, the transaction had been executed, and the law chose not to disturb it; now, the property has yet to pass to the corporation, and the law is called upon to declare positively that it shall so pass. That the law should, as in this second instance, refuse to take part in a forbidden act, appears to be in accordance with both the dignity of the judiciary and the intention of the legislature.

Whenever the question comes up before the Supreme Court of the United States for a decision, an interesting circumstance will be that the judge who delivered the opinion in the McGraw case was Mr. Justice Peckham.

CUSTODY OR POSSESSION. - In Holebrook v. State, 18 S. R. 109, the Supreme Court of Alabama seems not to distinguish between possession and custody. The indictment was for larceny. The prosecuting witness hired the defendant to convey him to a railroad station. Arriving there, he left with the defendant a quilt, which the defendant agreed to return to the house of the witness. Instead, the defendant sold it. The court sustained the verdict of guilty, on the ground that the defendant was not given possession, but mere custody.

The court recognizes the established rule of the common law that there is no larceny without trespass to possession, but takes it for granted that the defendant received only custody of the property. The reason for this assumption is not clear, unless it can be gathered from a passage from Rosc. Cr. Ev. § 646, which the court quotes without comment. This is merely a statement of the rule that, where a master delivers goods to a servant, the servant has only the custody of the goods. Obviously, it has no bearing on the case under consideration. Here, though it is often difficult to determine just what are the limitations of the doctrine of master and servant, there was obviously no such relation. The defendant was exactly in the position of a private carrier, and as such received the possession, not the custody, of the property. Doubtless the court was moved by the fact that, whether the defendant was convicted of larceny or embezzlement, his penalty would be practically the same, and to avoid further litigation sustained the conviction of larceny. But this seems no excuse for direct departure from principle. It was to cover just such cases as this that the Statute

of Embezzlement was passed in England, under which a prisoner, who would escape under the technicalities of the law of larceny, might be convicted. See 6 HARVARD LAW REVIEW, 244

PRESCRIPTIVE RIGHT TO COMPEL REPAIRS. — A somewhat startling proposition in the law of easements is laid down in the case of Whittenton Manufacturing Co. v. Staples, 41 N. E. R. 441 (Mass.), FIELD, C. J., HOLMES and LATHROP, JJ., dissenting. It is to the effect that, in consequence of payment by owners of land for more than twenty years of an annual sum of money toward the repair of the dam situated off the premises, the land thereby becomes subject to a servitude to pay that sum annually. The decision is based on the analogy of the duty to repair a dam to the duty to repair fences and highways. The primary conception of an easement is a right to use another's land: it is a burden imposed upon the land itself, and gives the owner of the easement a right in rem. The duty of the owner of the servient estate is the same as that of all other members of the community, merely to refrain from interfering with the use of the easement. Unfortunately, the law has allowed a landowner to acquire by prescription, or by grant, certain rights, which are not accurately rights in the land of another compelling a passive duty of non-interference merely, but are rights compelling positive acts by the dominus of the servient estate.

In these cases, the land is not subjected to use, but the owner, by reason of holding the land, is compelled to do positive acts. A right to compel the performance of positive acts is known as a spurious easement: and up to this time has been strictly confined to three classes of cases. The law has recognized the right to compel the repair of fences; repairs in connection with the enjoyment of an existing easement (Ryder v. Smith, 3 T. R. 766); and repairs to be made upon the highway by abutting owners (Bac. Abr., Highways, E.). It is doubtful if the last mentioned right was` ever recognized in the United States previously to the decision in the recent case of Middlefield v. Knitting Co., 160 Mass. 267. The question in the principal case concerns the extension of these exceptional easements. There are two strong objections. In the first place, the analogy between repairs on a dam situated on the land of a stranger and repairs to fences and highways is not complete. In each of the spurious easements noted above, acts are to be done on the servient estate; or at least, in each case the act to be done is closely bound up with the use of his land by the owner of the servient estate. But, aside from this imperfect analogy, the creation of rights in the nature of easements — varying widely, however, from the primary conception of easements, that of a subjection of the land itself— has gone far enough. It is to be regretted that such rights- anomalies at bestwere ever allowed to creep into the law; and on principle they ought not to be extended beyond their present well defined limits. It is conceivable, perhaps, that strong reasons of public policy would justify the extension. which the court tries to make in the present case; but Field, C. J., in his dissenting opinion, forcibly replies to arguments of this nature that "secret liens or interests in land, a knowledge of which cannot be obtained by a view of the land itself, or by a search in the proper registry of deeds, ought not to be extended." With authority and reasons of public policy against the decision, it has little left to support it.

The Massachusetts court would certainly support a covenant to pay this

money, even though in so doing it would probably go beyond the doctrine of Savage v. Mason, 3 Cush. 500. There, the covenant was to pay for the privilege of using a party wall, and was connected, it would seem, with the enjoyment of an easement, in this case, a right to retain the wall on land of the covenantor and his assigns.

WAIVER OF CONSTITUTIONAL RIGHT TO TWELVE JURORS. The Supreme Court of New Mexico has just decided that the United States constitutional guaranty of a jury trial in all criminal prosecutions cannot be waived by one indicted for a felony, so as to make valid a trial by eleven jurors. Territory v. Ortiz, 42 Pac. Rep. 87.

Most of the American State constitutions contain similar guaranties, which have been generally interpreted to prohibit statutes compelling the defendant to submit to trial by any number of jurors less than twelve. As regards the defendant's ability to waive this right, the authorities are divided. Although in minor offences the defendant is generally allowed to waive the right even in the absence of statutes permitting it, he is not allowed at common law to waive the right in case of felonies; and statutes permitting waiver of the right in such case are in some States held unconstitutional. Nowhere is waiver of this right permitted in capital cases.

One argument suggested against allowing the defendant to waive his. constitutional right to a trial by a full panel has been that the State is concerned to preserve the lives and liberties of its citizens, and therefore it will not suffer them to consent to a form of procedure that may lessen their chances of acquittal. Cancemi v. People, 18 N. Y. 128. But in Comm. v. Dailey, 12 Cush. 80, Chief Justice Shaw points out that in any particular case the defendant's chances of success in a present trial with eleven jurors may be greater than in a future one with twelve, as where certain evidence is now available that may not be in the future; and that the defendant and his counsel can be safely trusted not to prejudice his interests. Judge Cooley contends, however, upon better ground, that a tribunal of less than twelve jurors is unknown to the law; that it amounts merely to a species of arbitration to decide whether the accused has been guilty of an offence against the State. Cooley, Const. Lim. (6th ed.) 391. The finding of such a tribunal, not constituted according to law, is of course shorn of legal effect. Bulwarked by this reasoning, the result of the principal case and kindred decisions seems fairly impregnable.

THE NATURE OF RAILROAD TICKETS. Two recent cases in minor courts bring up interesting questions concerning the nature of railroad tickets. In Evansville & T. H. R. R. Co. v. Cates, 41 N. E. Rep. 712, the Appellate Court of Indiana held that where a passenger demands and pays for a ticket to A, and by a mistake of the ticket agent is given a ticket to B only, with which he enters the train without noticing the error, he has a right to ride to A on making proper explanation to the conductor; and can recover from the company for ejection by the conductor at B. This case is not without support (see Georgia R. R., &c., Co. v. Dougherty, 86 Ga. 744; 3 Wood on Railroads, § 349); but the weight of authority is against it, and it seems to have no foundation in principle. It involves a misconception of the true character of a railroad ticket. If it were true that the

passenger made his contract with the ticket agent and the ticket was handed over merely as a receipt, then he would perhaps have had a contract right to be carried to his intended destination. But, as was pointed out in 1 HARVARD LAW REVIEW, 17, the ticket agent has no authority to make contracts, his duty is merely to sell tickets. The ticket is the contract, and by its terms the passenger is bound; and in a case like that under discussion, while he doubtless has a right of action against the company for selling him the wrong contract, he has no action for being put off the train at the terminus provided by that contract.

Courts have fallen into error, it would appear, from failure to distinguish between the case of a ticket which is, on its face, not good for the journey intended by the passenger, and that of a ticket which is apparently good for the intended journey, and declared to be so by the ticket agent, although by the regulations of the company it is in fact not good. In the latter case the contract is ambiguous, and the passenger, under the circumstances, surely has a right to insist on the interpretation given by the company's agent ; but that is no reason why he is not bound by the ticket in the former case, where the interpretation of the contract is perfectly clear. (See Hutchinson on Carriers, § 580, j.)

The analogy between railroad tickets and bills and notes has often been remarked, and is treated of at length in the article in the HARVARD LAW REVIEW referred to above. A ticket is not a consensual but a formal contract; and although assignable in the absence of words of limitation, it is, like other negotiable instruments, not assignable in part. The second of the two recent cases is of note in this connection. In Curlander v. Pullman Palace Car Co., a case decided in the Superior Court of Baltimore, and reported in 28 Chicago Legal News, 68, the novel question was raised as to the right of a purchaser of a sleeping car section, who leaves the train before reaching his destination, to transfer the use of the section to another passenger for the rest of the journey. The court held that he had that right. This decision can apparently be supported only on the ground that a sleeping car ticket is radically different from a railroad ticket; that it is not a formal contract of transportation, but rather evidence of the purchase of certain space in the sleeping car for the specified journey. The existence of so marked a distinction between the two sorts of ticket may well be doubted.

The case of

THE RIGHT TO PRIVACY-THE SCHUYLER INJUNCTION. Schuyler v. Curtis, before noticed in its earliest stage in 5 HARVARD LAW REVIEW, 148, has been finally adjudicated by the Court of Appeals of New York in favor of the defendant. The bill was for an injunction to prevent the defendants from completing a statue of a deceased lady of whom the plaintiff was the nephew and step-son, and from displaying it first at the World's Fair under the title of "The Typical Philanthropist," and then in the rooms of the Ladies' Art Association in New York. Mr. Justice Peckham in dismissing the bill took especial care to say that the decision could not be taken as a denial of the right to privacy, or of that altogether independent right which the next of kin of a deceased person might have in the privacy of that person's past life, and he put the decision upon the ground that in the case in question there were no circumstances which gave the plaintiff good reason to pray for an injunction. The reasoning was that the deceased could not have shrunk from the anticipation of a publicity after her

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