66 child to regard him as born, two American courts have not included him," and a recent English case has reached this result.18 The House of Lords declared that the cases recognizing a fixed rule of construction, when the words of the will were 'living" at the particular time, form a class by themselves — a ruling which by implication seems to require that in other cases the words of the will be construed in their literal sense. More recently the Court of Appeal has decided that the words "born previously to the date of this my will" include a child en ventre sa mère at the date of the will, it being for the child's benefit, and states that the rule of construction is fixed in all cases for the child's benefit, not only when the will describes a person "living," but when it describes a person "born." In re Salaman, [1908] I Ch. 4. In view of the fact that an anomaly has been admitted to the law on this subject for every child en ventre sa mère cannot be regarded as living, and nothing now turns on the length of time since conception it seems that it is an undue refinement to give the words "living" and "born" a different meaning. 14 Obviously it is more convenient from a purely legal point of view that there should be a fixed rule in all cases. A tendency in this direction is manifested (1) by the uniformity with which the general words in statutes of descent are held to include a child en ventre sa mère,15 (2) by the now solidified rule that such children are regarded as born, irrespective of the question of benefit, in the case of the Rule against Perpetuities,16 (3) by the occasional cases where they are considered as born when neither to their benefit or detriment. In view of this tendency, of the rareness of the cases in which it is not for the child's benefit to hold him born, and of the inaccuracy attendant on attributing to a testator intentions in regard to circumstances obviously unforseen in the will, it would seem, on the whole, better to consider a child en ventre sa mère as born in every case of a devise or a bequest to persons to be determined on some particular event. THE TERRITORIAL EXTENT AND SITUS OF TRADE-MARKS. Relief from infringement of trade-marks or trade-names is usually given upon one of three principles: judicial recognition that the user has become invested with a property right in the mark or name;1 the presence of features of unfair competition; or deception of the public as to the origin of the goods. The courts recognize a property right in such marks only as are mere arbitrary symbols or in such names as are fanciful and in no way descriptive of the article. If the mark or name is descriptive, unfair competition must be shown. The reason for this distinction lies in the fact that if the originator of the symbol or fanciful name has invented and applied to 12 Armistead v. Dangerfield, 3 Munf. (Va.) 20; M'Knight v. Read, 1 Whart. (Pa.) 213. is Villar v. Gilbey, [1907] A. C. 139 (any son born in my lifetime). See 19 HARV. L. REV. 624. 14 Trower v. Butts, supra. In Hall v. Hancock, 32 Mass. 255, the child was born eight months and seventeen days after the testator's death. 15 Smith v. McConnell, 17 Ill. 135; Pearson v. Carlton, 18 S. C. 47. 16 In re Wilmer's Trusts, [1903] 2 Ch. 411. See 16 HARV. L. REV. 601. 1 Bass v. Feigenspan, 96 Fed. 206. 2 Shaver v. Heller, etc., Co., 108 Fed. 821. his goods a mark indicative of its origin which has never before been used, he is entitled to a property right in it. But where the name is descriptive he can acquire no title, since the property right is already in the general public. But given a case where the user has acquired a property right in the mark, is such right limited by any geographical boundaries? It is sometimes said that no such restriction exists. By the better view, however, this statement must be modified. It is well settled that a trade-mark can have no existence apart from the business with which it is connected and cannot be assigned apart from such business. It must, therefore, be restricted within the territorial scope of the business. Moreover, upon principle it would seem that, the property being a mere monopoly created by law, no extra-territorial effect can be given such law. Thus a right acquired by one person in Germany is of no avail as against a bona fide user of the same mark in America. There seems to be no direct authority as to the situs of this property right in a trade-mark or trade-name, but, since it is inseparable from the business, the situs must be the place where the business is carried on. It follows that when the business is conducted in two countries, there must be two distinct property rights existing independently in each country. 10 These conclusions are well illustrated by a recent federal decision. The plaintiffs had been engaged in France in the manufacture of a liqueur which they called "Chartreuse," and the product had been sold under that name for a number of years in this country. The French government confiscated the plaintiff's property, and the trade-name in question was transferred to the defendants. The plaintiffs removed to another country and continued to use the name. The defendants were enjoined from using the trade-name in the United States." Baglin v. Cusenier Co., 156 Fed. 1016 (Circ. Ct., N. D. N. Y.). The court found that "Chartreuse" was a valid trademark, not a mere descriptive word. The plaintiffs were therefore possessed of two property rights, one situated in France and one in America, and as confiscation can only affect such property as can actually be seized,11 the American property right remained in the plaintiffs. The decision may also be supported on the third ground upon which protection is granted, that the acts restrained amounted to a fraud on the public. Moreover, the business of the plaintiffs did not pass to the defendants, since the recipes for the manufacture were not disclosed. Therefore no property passed, and the confiscation merely amounted to a declaration that it was not unfair competition for the defendants to use the words. This, of course, was of no extra-territorial effect. 4 Browne, Trade-Marks, 2 ed., § 46. 5 See Helmbold v. Helmbold, etc., Co., 53 How. Pr. (N. Y.) 453, 458. 6 Derringer v. Plate, 29 Cal. 292. 7 See Congress, etc., Co. v. High Rock, etc., Co., 57 Barb. (N. Y.) 526, 551. 8 See Vacuum Oil Co. v. Eagle Oil Co., 122 Fed. 105. 9 Richter v. Reynolds, 59 Fed. 577. 10 Similarly, the English Court of Appeal has recently granted an injunction against the use of the name in England. Rey v. Lecoutrier, 124 L. T. 195. As the case is not reported in full, the grounds upon which the English court reached this result are not entirely clear, but the decision seems to be based on the third principle- deception of the public. 11 The Ann, 9 Cranch (U. S.) 289. RECENT CASES. ADMIRALTY - JURISDICTION - STATE CONTROL OVER MARITIme Rights. Several persons were killed in a collision on the high seas between two vessels owned by citizens of Delaware. Suit was brought in an admiralty court under a Delaware statute which allowed an action for death by wrongful act. Held, that the action will lie. The Hamilton, 207 U. S. 398. See NOTES, P. 357. - ADVERSE Possession — WHAT CONSTITUTES POSSESSION UNDER UNRECORDED DEED. In 1891 A conveyed land to C, who re-conveyed to A and B. The first deed was recorded. C forged a certificate of registration on the second deed, which was not in fact recorded. In 1895 C mortgaged the land to the plaintiff, who was without notice of the unrecorded deed. In 1903 the plaintiff brought an action to enforce the mortgage against A and B, who had been in actual, open, and continuous possession of the land under a claim of title in themselves for the whole period. The statute of limitations was ten years. Held, that the plaintiff may recover. McVity v. Tranouth, [1908] A. C. 60. By the registry laws unrecorded deeds were void as to subsequent purchasers or mortgagees without actual notice, but valid as between the parties. Cf. McGregor v. Kerr, 29 Nova Scotia 45. The defendants' possession between 1891 and 1895 consequently had all the essential elements of adverse possession necessary to claim the benefit of the statute except the existence of a right of action against them. Although it is generally stated that a grantee's possession is adverse to his grantor, only one case has been found which applied the doctrine to possession that no one had a right to disturb. See Sutton v. Pollard, 96 Ky. 640, 644. The case of a donee of land under an oral gift is distinguishable, because the donor can at any time oust him or bring ejectment, the gift being void by the statute of frauds. Cf. Vandiveer v. Stickney, 75 Ala. 225. Moreover, an analogy to the present case is found in the case of negative easements. Where the acquisition of easements by adverse user is based on the analogy to the statute of limitations, negative easements cannot be acquired by adverse user because there is no right of action. Napier v. Bulwinkle, 5 Rich. Law (S. C.) 311; cf. Parker v. Banks, 79 N. C. 480, 485. ALIENS ENFORCEMENT BY ASSIGNEE OF CONTRACT TO CONVEY LAND TO ALIEN. — Civil Code of South Carolina, 1902, § 1795, provided that “no alien either in his own right, or as trustee or cestui que trust, shall own or control more than five hundred acres of land." The defendant contracted to convey more than five hundred acres to the plaintiff's assignor, an alien. Held, that the plaintiff, a resident, may enforce specific performance. Tucker v. Atlantic Coast Lumber Co., 59 S. E. 859 (S. C.). A statute passed in 1872 gave aliens the same capacity to own and acquire property as citizens. See Civ. CODE OF S. C., 1902, § 2360. The court construes the present statute merely to revive the common law as to land exceeding the prescribed amount. At common law, an alien could take by purchase and hold equitable as well as legal estates in land, defeasible only by the sovereign. Cross v. De Valle, 1 Wall. (U. S.) 3. A contract to convey was enforceable against an alien vendee. Scott v. Thorp, I Edw. Ch. (N. Y.) 512. Since generally an alien could defend, but not enforce, his rights in land, it is probable that an alien vendee could not obtain specific performance. Cf. Williams v. Myers, 8 Nova Scotia 157; Hubbard v. Goodwin, 3 Leigh (Va.) 492. But in the case of an express trust for an alien, the cestui's assignee, or the sovereign, could proceed against the trustee on the ground that an interest passed to the alien in spite of his personal incapacity to enforce it. See Murray v. Heron, 7 Grant Ch. (U. C.) 177; Sharp v. St. Sauveur, L. R. 7 Ch. 343. This theory somewhat stretches the notion of a vendee's equitable title, which is usually considered synonymous with enforceability. But public policy, as illustrated in the analogous doctrine of transfer of title through corporations, acting de facto or ultra vires, favors the present result. BANKRUPTCY TRACT. - PROVABLE CLAIMS - ANTICIPATORY BREACH OF CONA promise was given to buy stock at a certain future date on the tender of the certificate by the holder. Before the time fixed, the promisor was adjudged a bankrupt and a trustee appointed. The certificates were tendered to the trustee. The promisee wished to be allowed to prove his claim. Held, that his claim is provable, since by offering to file it he has elected to treat the contract as broken. In re Neff, 157 Fed. 57 (C. C. A., Sixth Circ.). For a discussion criticizing a similar decision reaching the opposite result, see 20 HARV. L. REV. 66. BANKRUPTCY RIGHTS AND DUTIES OF BANKRUPT RIGHT TO EFFECT COMPOSITION BEFORE ADJUDICATION. - Upon reference of an involuntary petition, the bankrupt corporation asked to be allowed to attempt a composition with creditors before adjudication. Held (by the referee), that a composition can be effected before adjudication. In re Back Bay Automobile Co., 19 Am. B. Rep. 33 (Dist. Ct., D. Mass., Nov. 1907). If the court may call meetings of creditors before adjudication, then certainly all conditions required for such a composition may be fulfilled. Section 55 e of the Bankruptcy Act provides that a meeting may be called whenever one-fourth of those who have proved their claims shall so request. The referee interpreted this section as meaning that meetings of creditors may be called prior to adjudication. Such an interpretation, however, seems directly in conflict with $55 a, which expressly provides that the first meeting of creditors shall be held not less than ten days after adjudication. But even if the referee is wrong on this point, a composition before adjudication seems possible. In no step of the proceedings prescribed for a composition by § 12 of the present Act is an adjudication or a meeting of creditors expressly made essential. Cf. BANKRUPTCY ACT OF 1874. U. S. REV. STAT., § 5103a. Moreover, such a requirement cannot be implied from the express conditions of compositions that the bankrupt be examined in open court and that a certain number of creditors whose claims have been allowed shall accept the composition in writing. Cf. In re Fleisher, 151 Fed. 81; BANKRUPTCY ACT OF 1898, §§ 57 d, 57f. BOUNDARIES NAVIGABLE - EXTENSION OF CITY BOUNDARIES INTO RIVER.The boundary of a city was the shore of a navigable river. A railroad owning land on the river-front erected permanent piers resting on piles. By statute the title to such improvements vested in the riparian owners, and not in the state. Held, that the city boundary is coincident with the boundary of the pier, and that the latter is taxable by the city as property within its limits. Western Md. T. R. Co. v. Mayor, etc, of Baltimore, 68 Atl. 6 (Md.). It is well settled that, unless expressly authorized by statute, a city cannot tax land outside city limits. Gilchrist's Appeal, 109 Pa. St. 600. Land acquired by natural accretion, however, would be within the city limits, since the boundary should change as the actual shore-line changes, where the shore is expressly made a boundary. Cf. East Omaha Land Co. v. Jeffries, 40 Fed. 386, 392. Similarly, solid piers or wharves of filled-in earth or stone, the construction of which is permitted by statute, would be within the city's jurisdiction, the actual shore-line being as much changed by them as by natural accretion. See 2 DILL., MUN. CORP., 748. But it is difficult to call a pier on piles, under which the water flows as before, a new shore. Hence the boundary seems unchanged in the present case. Cf. Ft. Smith, etc., Co. v. Hawkins, 54 Ark. 509. It may be urged, however, that the result of denying the city jurisdiction - that if many such piers were built the city would be as effectually shut off from its water front as by solid piers - would clearly violate the intended effect of the limitation in the city charter. - CARRIERS TICKETS INJUNCTION AGAINST TICKET-Brokers. The defendant ticket-brokers intended to buy and sell special reduced rate nontransferable tickets about to be issued by the plaintiff. Held, that the threatened sale of such tickets may be enjoined. Bitterman v. Louisville & Nashville R. Co., 207 U. S. 205. The precise legal nature of railroad tickets is by no means settled. Some authorities regard them as contracts, some as the evidence of contracts, some as mere vouchers. But, under any view, the ticket is a means adopted by the carrier and passenger to aid in the execution of their contract; and in every case where the right to be carried is non-transferable, the passenger either expressly or impliedly contracts not to transfer the ticket. See D. L. & W. R. R. Co. v. Frank, 110 Fed. 689, 692. Accordingly the court rests its decision upon the familiar principle that any third person inducing a breach of contract by a promisor is liable in tort to the promisee. In the present case an injunction is the only adequate remedy because of the multiplicity of suits necessary to recover damages and the practical impossibility of detecting the great majority of the illegal transactions. Consequently, since the legal remedy is inadequate, equity will give relief. Although a new application of an established doctrine, the reasoning of the court seems irrefutable and the same result has frequently been reached upon different grounds. See Nashville, etc., Ry. v. McConnell, 82 Fed. 65. CONFLICT OF LAWS MAKING AND VALIDITY OF CONTRACTS - CONTRACTS CONCERNING LAND. The defendant contracted in Minnesota to sell land in Colorado to the plaintiff. The contract contained a clause that if the plaintiff should fail to pay at a specified time the contract should be voidable at the defendant's option. This clause was valid according to Colorado law but invalid according to Minnesota law. On the plaintiff's failure to pay as required, the defendant notified him of his repudiation of the contract. Held, that the plaintiff may recover damages for failure to convey. Finnes v. Selover, etc., Co., 113 N. W. 883 (Minn.). It is undoubted law that interests in real estate can be acquired or lost only in accordance with the lex loci rei sita. Roberston v. Pickrell, 109 U. S. 608. But contracts to convey land are not necessarily governed by the same law. Thus a contract to convey, valid at the place where made, will be enforced at the place where the land is situated, although such contract would have been void if made in the latter state. Polson v. Stewart, 167 Mass. 211; see 10 HARV. L. REV. 523. And in general where the defendant has put himself under obligations with regard to land, either ex contractu or ex delicto, relief will be granted where such obligation arose, regardless of the law of the situs. Ex parte Pollard, Mont. & C. 239; see 20 HARV. L. REV. 382. It follows from these cases that the validity of the contract depends upon the lex loci contractus, and that relief will be granted in such state in spite of the law of the situs. To be sure, if the latter refuses to recognize an interest as being created in the res, relief in rem is impossible, but relief in personam, as in the present case, should be granted. CONFLICT OF LAWS - MARRIAGE Jurisdiction for NULLIFICATION. A, an Englishwoman, was married in England to B, a Frenchman. This marriage was declared void by the French court because B, who was not of full age by French law, had not obtained the parental consent. A then married C in England. C sought a decree of nullity on the ground that the first marriage was valid by the English law, and in spite of the French decree. Held, that he is entitled to the decree. Ogden v. Ogden, [1908] P. 46. For a discussion of this case in a lower court, see 20 HARV. L. REV. 412. Conflict of LAWS - PERSONAL JURISDICTION NOTICE TO PRODUCE CORPORATION BOOKS FROM A FOREIGN JURISDICTION. - Pursuant to a statute, a foreign corporation doing business in Vermont was served in the state with a notice to produce before a local grand jury certain corporation |