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in theory, and to have adopted substantially the view that a devisee by his own crime may acquire the legal, but not the beneficial, interest in the property devised.

In Deem v. Millikin, 6 Ohio Cir. Ct. R. 357, a mortgagee for value without notice from a son who had murdered his mother was properly allowed to retain realty that came to the murderer by descent from his mother. This of course is in accordance with the rule that a bona fide purchaser may acquire trust property free from the trust.

It is to be regretted that Pennsylvania has gone to the other extreme and holds (following Shellenberger v. Ransom, 59 N. W. Rep. 935 (Neb.), noted in 8 HARVARD LAW REVIEW, 170) that a son who murders his father may take both legal and beneficial interest by the local statute of descent. In re Carpenter's Estate, 32 Atl. Rep. 637 (criticised in 30 Am. Law Rev. 130).

LIABILITY OF MUNICIPAL CORPORATION FOR DEFECTIVE WATER-WORKS. - In Springfield Fire & Marine Insurance Co. v. Village of Keeseville, 42 N. E. Rep. 405, the New York Court of Appeals recently held that a municipality which maintained a public system of water-works, under a power conferred by the State, was not liable for the loss of property by fire caused by the defective condition of the water-works. The case raises the old question of the liability of a municipal corporation to private action for failure in the performance of a duty, and in the opinion of the court the general grounds upon which this question has always been decided are well set forth. The powers conferred upon municipal corporations by the State are of two sorts, which may be briefly characterized as public and private. The former are the legislative and governmental powers intrusted to the municipality as one of the political divisions of the State. The latter are those conferred for the private benefit of the municipality, which are exercised by it in its private capacity, and with which the State itself is unconcerned. Whether or not,

apart from statute, a city is liable to private action for failure in the performance of a public duty specifically enjoined, is a disputed question, though probably it would generally be answered in the affirmative. It is perfectly well settled, however, that for neglect in the exercise of public, discretionary powers, a municipality is no more liable in tort than the State itself would be, while for neglect in the exercise of any private power, it incurs the same liability as a private corporation. Maxmilian v. Mayor, &c. of New York, 62 N. Y. 160; Eastman v. Meredith, 36 N. H. 284; Dillon on Municipal Corporations, §§ 965 a, 980; Goodnow on Municipal Home Rule, ch. vii.

The difficulty arises in determining to which class any particular power belongs. Is a city which establishes and maintains a system of waterworks by permission of the State exercising a governmental function, or is it merely performing the work of a private corporation? The argument from analogy leads to but one conclusion. The cases where the city is liable to an action of tort for failure to perform a duty voluntarily assumed are limited strictly to those where the duty is incurred in the performance of such a purely business undertaking as the management of docks and wharves at a profit. Mayor, &c. of Lyme Regis v. Henley, 3 B. & Ad. 77; Pittsburgh City v. Grier, 22 Pa. St. 54. Where the duty is undertaken for the public good, the city is not liable. It is accordingly held everywhere that the power to establish a fire department is governmental, and

that consequently the city is not liable for the neglect of firemen to perform their duties adequately. Fisher v. Boston, 104 Mass. 87; Wheeler v. Cincinnati, 19 Ohio St. 19. And in the similar case of public waterworks, which certainly are not maintained as a matter of private corporate interest, but for the general welfare and protection, it has also been held with great unanimity, in accord with the decision under discussion, that neglect to carry on the work adequately will not support a private action. Tainter v. Worcester, 123 Mass. 311; Mendel v. Wheeling, 28 W. Va. 233; Black v. Columbia, 19 S. C. 412.

It is often said that where a city derives a profit from exercising a particular function, it is playing the part of a private corporation and is liable as such. And accordingly it was contended, in Insurance Co. v. Village of Keeseville, that the fact of the town's receiving rents from the takers of the water showed that it was a private enterprise. In answering this argument the court points out that "the imposition of water rents is but a mode of taxation, and a part of the general scheme for the purpose of raising revenue with which to carry on the work of government."

It should be borne in mind that the question discussed above is as to the liability of a city for failing to perform, or for performing inadequately, a public duty. A different question arises in considering the liability of the city, not for mere nonfeasance, but for misfeasance in the performance of a duty, causing direct damage to the person or the property of a citizen. Hill v. Boston, 122 Mass. 344, 358; Dillon on Municipal Corporations, § 966. Many of the cases which seem at variance with Insurance Co. v. Village of Keeseville, and the principles above set forth, are distinguishable on this ground. See, for example, Scott v. Manchester, 2 H. & N. 204; Bailey v. Mayor, &c. of New York, 3 Hill, 531; Murphy v. Lowell, 124 Mass. 564.

CONVEYANCE OF AN EXPECTANT ESTATE. The Kentucky Court of Appeals recently declared that the conveyance by a son of his expectant interest in his father's estate is invalid, even in equity. This decision meets with some support, but is contrary to the weight of authority. The court, while following two previously adjudicated Kentucky cases, also supports its decision by an argument of some length. It points to the generally accepted rule that the conveyance or assignment of a bare possibility is at law invalid, and argues that equity should not contradict the law, especially since the equity courts cannot agree upon a common theory for the enforcement of such a conveyance. It further asserts that to hold the conveyance invalid will be to "save multiplying contentions, protect the improvident children and heirs at law from fraud and deceit, save free and untrammelled the actions of the possessors of estates in their distribution." McCall's Adm'r v. Hampton, 32 S. W. Rep. 406 (Ky.). It is by no means a safe premise that equity should always follow the law; and the argument that, because courts of law will not recognize a conveyance, courts of equity must also decline to recognize it, is unsound. The fact is that most American courts of equity will support such a conveyance, while hardly a court of law will do so. But there is unquestionably much confusion as to the theory on which it is to be supported. Some jurisdictions apply the rules for the conveyance of real property. This leads them into the doctrine of estoppel, with all the confusion that

attends it in this country. Practically all jurisdictions require covenants of warranty, or an equivalent, in order to raise the estoppel, but quarrel on the effect of the estoppel. A Massachusetts decision, Trull v. Eastman, 3 Met. 121, holds that the estoppel passes the actual title at law. Other courts hold to the apparently sounder view that the covenant of warranty operates as a personal rebutter preventing the grantor from setting up his estate, or "as if a particular averment had been introduced, and the grantor was estopped by his deed from denying its efficacy." See Rawle on Covenants for Title, 3d edition, p. 412, notes 2 and 3. According to this view the grantee's remedy would be purely in equity. Again, the assignment is supported, regardless of the covenant of warranty and its attendant estoppel, not as a conveyance, but as an executory agreement to convey, a present contract to take effect when the estate comes in esse, or as creating an equitable ownership to be changed to an absolute property when the son actually inherits. Bayler v. Commonwealth, 40 Pa. St. 37. In these courts the conveyance of an expectant estate, and a contract for the assignment in futuro of personalty not in esse at the time of the contract, are regarded in the same light. Such a theory has at least the merit of doing full justice to all parties without violating any principles of law or equity.

In nearly all jurisdictions such conveyances are closely scrutinized, owing to the ready opportunities for fraud. That is one reason why a covenant of warranty is held necessary in so many jurisdictions. Everywhere the grantee must have sufficient consideration. The conveyance

is looked upon with favor when it is known and approved by the party from whom the estate is to be derived. To invalidate the conveyance in such a case would be to defeat the intent and interest of all parties. In this case which the Kentucky court had to decide everything is favorable. There is a covenant of warranty, with good consideration, absence of fraud, and assent of the father. Under these circumstances, most courts of equity would hold a son's conveyance of his expectant estate to be valid. See 7 HARVARD LAW REVIEW, 429.

INCORPORATION BY REFERENCE - STATUTE OF FRAUDS. The note or memorandum required by the Statute of Frauds must contain certain terms. If some of those terms are on one paper and others on another, when may the two papers be read together? This question has been answered by the English courts in various ways; at first they were somewhat strict, but for the last twenty years they have adopted a much looser rule. A recent case, however, Potter v. Peters (72 L. T. Rep. 624), looks rather like a return to the older view.

ten.

The whole subject is much confused by talking about parol evidence. The question is said to depend on whether parol evidence is admissible to show what the writing referred to, or under what conditions it was writThe difficulty, however, does not lie with any rule of evidence : there is no rule of evidence which forbids one to introduce both writings or to show all the accompanying circumstances. The real question is, What do these facts, when admitted, prove? Do they furnish a note or memorandum containing the requisite terms? One writing contains the defendant's signature and some of the terms, the other writing (assuming it to be unsigned) contains the lacking terms. Are the circumstances such that the second may be considered as part of the first, so as to con

nect the whole with the defendant's signature? This is a question in the law of incorporation by reference, not in the law of evidence.

The views expressed by the English courts seem to resolve themselves into one of the two following propositions: (1) that the signed document must contain a reference to some other writing, or (2) that it need only refer to a transaction, of which the other writing in fact forms a part.

At the beginning of this century the first of these views was modified by a requirement that the identity of the writing referred to must appear from the reference itself. In Boydell v. Drummond, 11 East, 142 (1809), there was a prospectus of sale, and the defendant signed a book headed "Shakespeare Subscribers, their Signatures." During the argument Lord Ellenborough said, "What is there in the title to refer to the particular prospectus rather than any other? If it had referred to the particular prospectus then published, it would have helped the plaintiff over his difficulty." This early modification, however, was dispensed with in Peirce v. Corf, 9 Q. B. 210 (1874), where the court adopted without limitation the view expressed in the first of the above propositions: "On the document itself there must be some reference from one to the other, leaving nothing to be supplied by parol evidence except the identity, as it were, of the document." Though couched in terms of evidence, this amounts to saying that when the signed paper contains a reference to some other writing, whether to a particular one or not, and there exists another writing which is shown (no matter how) to be the one referred to, the second writing can be incorporated into the first, and the defendant's signature will thus be annexed to both in a way satisfactory to the

statute.

After Peirce v. Corf there came a series of cases, in which the courts, though professing to follow the first rule, seem in substance to have adopted the second, namely, that if a signed document refers to a transaction generally, it will incorporate any document connected with that transaction.

In Long v. Millar, 4 C. P. Div. 450 (1879), the signed document referred to "the purchase,”. not to any document connected with the purchase, but to the transaction generally. The court there incorporated a paper containing the plaintiff's agreement to buy, and tried to reconcile the case with the former rule by construing "the purchase" to mean "the agreement to purchase." In Studds v. Watson, 28 Ch. Div. 305 (1884), the second proposition was squarely stated by North, J, as follows: "There is a parol agreement proved to which both these documents refer. All the terms of this parol agreement are found in one or the other of the two documents, and are in themselves sufficient to constitute a good memorandum within the statute. . . . I do not think it is necessary in this case that these two documents should refer the one to the other." In that case, to be sure, both papers were signed, but the court appears not to have noticed the fact. Again, in Oliver v. Hunting, 44 Ch. Div. 205 (1890), there was a letter acknowledging the receipt of a check account of the purchase money for the Fletton Manor House estate," and this was held to refer to and incorporate a previous memorandum relating to this transaction. There was here no reference to a document, but merely to the transaction of which the document was a part. Thus at this period the English courts had abandoned the first rule and had virtually adopted the second.

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In 1895 the question came up again in Potter v. Peters, supra.

Here the defendant's agent, who had already written to the defendant informing him of an offer, wrote a second letter to his solicitor, putting him in communication with the buyer's solicitor. The Court refused to connect the two letters. This seems to point to the older rule that the signed document must refer to some other writing, not simply to the transaction generally.

It may be doubted whether the English courts have been justified in stretching the doctrine of incorporation by reference to the extent to which the cases of Studds v. Watson and Oliver v. Hunting appear to go. While one may well enough be held to have adopted and signed a paper to which he has in a signed writing referred, it is at least going far to say that the signature can be carried over and attached to a writing which is not connected with the first in any other way than that it is a part of the same transaction.

The foregoing considerations are submitted as applying to a case where an unsigned document is sought to be incorporated into one that is signed. When both are signed, there should be no necessity for connecting the two; for the defendant has subscribed his name to all the requisite terms, and this would seem to be all that the statute requires. This view has been taken in Thayer v. Luce (22 Ohio St. 62), and on this ground Potter v. Peters might well have been decided differently.

MAY THE VENDOR OF THE GOODWILL OF A BUSINESS SOLICIT HIS OLD CUSTOMERS? - What passes by the sale of a goodwill of a business? What obligations are imposed on the vendor by reason of the sale? These troublesome questions have again been raised in the case of Trego v. Hunt, 12 The Times L. R. 80, decided last December in the House of Lords. The decree in the case restrained the vendor of the goodwill from soliciting the trade of his old customers in person, by agents, or by letter. The case of Labouchere v. Dawson (L. R. 13 Eq. 322), decided in 1874 by Lord Romilly, M. R., and overruled twelve years later in the Court of Appeals by Pearson v. Pearson (27 Ch. Div. 145), is re-established, and Pearson v. Pearson is in turn overruled. The reasoning is this. A vendor of the goodwill sells the benefit of the connection of his concern, that is, the chance that the customers will continue their patronage. It is obvious that by solicitation of the old customers, the vendor, on setting up a similar business, may greatly lessen the purchaser's chance of retaining that patronage. But a man may not depreciate what he has sold: therefore the vendee of the goodwill is entitled to protection, and his vendor will be restrained accordingly from soliciting the old customers. "It is immaterial," says Lord Herschell, "whether the obligation on the part of the vendor to refrain from canvassing the customers is to be regarded as based on the principle that he is not entitled to depreciate that which he has sold, or as arising from an implied contract to abstain from any act intended to deprive the purchaser of that which has been sold." Of course, a logical application of either principle would carry the courts far beyond restraining a mere solicitation of old customers. This fact is recognized; but it is acknowledged that it is now too late to question the authorities which establish the vendor's right to set up a similar business (Shackle v. Baker, 14 Ves. 468), to advertise his business and solicit customers in any public way (Labouchere v. Dawson, L. R. 13 Eq. 322), so long as he does not use the firm name, or represent that he is continuing

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