The Burden of Loss as AN INCIDENt of the Right to the SPECIFIC PERFORMANCE OF A CONTRACT.-Prof. William A. Keener, Story, dean of the Columbia law school, treats of this subject as to contracts for the sale of real property only.-Columbia Law Review, Vol. I., No. 1, January, 1901:

At law, a destruction in whole or in part of the subject matter of an executory bilateral contract by which real property is to be conveyed relieves the proposed vendee from all obligation; having no control over the property he cannot be made to bear a loss as if he did have control. In equity, where the vendee has bound himself to buy but the vendor has not bound himself to sell, the element of control is still lacking to the vendee, and the loss still falls on the vendor. Also, where the vendee has simply purchased the right of demanding a conveyance-in other words, has an option-there is nothing to compel him to avail himself of the privilege, consequently, in this case the question of where the loss shall fall can never arise.

Now comes the question: "Does the fact that equity will decree specific performance of a contract, whereby the one party has contracted to convey at a future day and the other to accept a conveyance and to pay therefor at the time of the conveyance or at some subsequent time, justify a court of equity in throwing upon the vendee a loss which at law will fall upon the vendor?"

Reasoning from the fact that in other cases where executory contracts from the sale of lands are involved, equity has treated the property as if vested in the vendee from the date of contract. Mr. Keener argues that the loss of the subject matter should fall on the vendee as well. Regarding the contract as virtually executed at its making, the vendor becomes a trustee of the property for the vendee, the vendee becomes a trustee of the purchase money for the vendor.

By this trust theory, the following points, indicating where the ownership really resides are worked out: The vendee may demand a conveyance from a donee or purchaser with notice; his interest is assignable, descendible and devisable; his wife has dower; he may demand careful management by the vendor in possession; he is chargeable for improvements made by vendor under compulsion of law, and for taxes paid by vendor if greater than the rents and profits; the property is no longer liable for the vendor's debts; and the vendor's wife has no dower, if the contract of sale was entered into before the marriage.

With the exception of not having a right to demand an accounting of rents and profits until the vendor is in default, the vendee's position

toward the property is analogous to that of a mortgagor, he holding the equitable title, the vendor holding the legal title as security for the purchase money.

The writer then takes up the objections to throwing the loss on the vendee: The vendee has no rights to the use of the property; this is answered by saying that he is not paying interest on the contract price and so suffers no actual loss on this score.

It saves litigation to let a loss lie where it falls: i. e., upon the owner of the legal title: Answer, the injustice of this is too patent to need discussion.

If loss falls on the one in possession he will take greater care of the property: This argument goes on the theory that there are more careless than careful men. Under the author's doctrine, should the vendor really be chargeable with negligence, an action would lie against him.

To prevent subrogation of an insurer, and so prevent circuity of action, loss should fall on the vendor. This practical advantage should not alone justify such a hardship on the vendor.

The vendee cannot, under the recording acts, give constructive notice of his rights to a subsequent purchaser from the vendor: Answer, neither can a cestui que trust give notice of his rights, and yet the danger of a trustee's being dishonest is just as great if not greater than that a vendor should be derelict. "Should an honest vendor suffer a loss because had he been dishonest he might have defrauded the vendee?"

It has been suggested that most of the questions arising on this subject may be worked out on the theory of equitable conversion, rather than on the trust idea. Equitable conversion, however, is only applied in adjusting rights between those who represent the interests of a party as among themselves. It does not lend to, but simply represents, a right.

The propositions advanced by Professor Keener are not adopted in all jurisdictions, but in a large majority of the states and in England they seem to be the law.

The language of the article is somewhat involved and it requires close reading to get the drift of the writer's arguments. It, however, is very carefully written and will well repay a number of readings. One might wish that there were more citations to American cases, so that the fountains of his authorities might be examined, but those cases which are cited are strictly in point. M. I. ST. J.

SENATOR HOAR TO PHI DELTA PHI.-When Fritz v. Briesen, Field '97, was preparing his article "An Old Slander, the United States Supreme Court and the Legal-Tender Decisions," which appeared in the last BRIEF, he called on Senator Hoar relative to the Senator's pamphlet on "The Charge of Packing the Court against President Grant and Attorney General Hoar, Refuted." Senator Hoar stated that the pamphlet was not on sale anywhere, but that he would be glad to send a copy to any reader of the BRIEF who sent him a request for one. If there are too many applications, he will have the pamphlet reprinted and placed on sale with some publisher.

We suggest to our readers that they take advantage of this kind offer of the Senator's, and procure a copy of this pamphlet. It contains a full, clear, and concise argument in defense of the honor of the Supreme Court against the charge of having been packed to reverse the Legal-Tender Decision. The address, Senator George F. Hoar, Washington, D. C., will be sufficient.

THE TOWN OF OTIS, MAINE.-The dailies and a few legal journals were recently wrought up over the report that this town had not paid its debts; that private property had consequently been seized and sold, and that the owners of such property had sued their neighbors, and that things generally were at sixes and sevens. A note to a Maine brother brought the following:

The practice of bringing suits against the inhabitants of towns or municipal corporations and collecting the judgments of the individuals. composing it is neither new or novel. It was a part of the common law of England and is sanctioned by immemorial usage.

It was a part of the common law of Massachusetts as late as the case of Hill v. Boston (122 Mass. 344), also affirmed in Beardsley v. Smith (16 Connecticut 368). Whether or not this rule has been changed by statute in these states I do not know.

Sec. 55 of Chap. 46 of the Revised Statutes of Maine provides that "The property of the inhabitants of counties, towns, cities and other quasi corporations may be taken to pay any debt due from the body politic of which they are members. All sums so paid with interest and costs may be recovered of such body politic." And Sec. 30 of Chap. 84 of the Revised Statutes is as follows: "All executions or warrants of distress against the town shall be issued against the goods and chattels of the inhabitants thereof and against the real estate situate therein whether owned by such town or not, etc." Sec. 31 of said chapter provides how said real estate shall be taken and sold.

Sec. 32 of said chapter is as follows:

"The owner of any real or personal estate so sold may recover against the town in an action of assumpsit the full value thereof with interest as the rate of twelve per cent. yearly, with costs of suit; and may prove and recover the real value thereof whatever was the price at which it was sold." These statutes were held to be constitutional in Ames v. Savage (77 Me. 212).

While it is true, theoretically, that these statutes make possible an endless chain of suits and levies stated in the newspaper criticism, practically, no such result follows, for the inhabitants, rather than have the expense of this endless chain of suing and levying upon their property, assess taxes upon the property and pay the debt, which does equal justice to all. W. H. POWELL.

CHIEF JUSTICE MARSHALL: AN ADDRESS BY MR. JUSTICE STORY.-This is the address of Justice Story in full, delivered in 1852, before the Suffolk, Mass., Bar Association. It was recommended by the committee of the American Bar Association that the Lawyers Cooperative Publishing Co., Rochester, N. Y., republish this address and charge 50 cents a copy for it, but the Publishing Company decided to issue the book practically gratis, so long as the edition lasted, charging only 5 cents for postage.

The book is neatly bound in paper, 60 pages, and the frontispiece is a fine likeness of the great Marshall. We understand that the edition is not yet exhausted and that the opportunity of getting something for nothing is still yours.

CHIEF JUSTICE FULLER ON JOHN MARSHALL.-John Marshall was installed Chief Justice on February 4, 1801. In Washington, D. C., at 10 o'clock, February 4, 1901, the installation was commemorated with impressive ceremonies in the Hall of Representatives. The President, his Cabinet, the members of the Supreme Court, the members of the Senate and House, the Diplomatic Corps, and members of the District of Columbia Bar Association attended as invited guests.

Chief Justice Fuller, Choate, as presiding officer, in his judicial robes, was escorted to the chair by Representatives Grosvenor, of Ohio, and Richardson, of Tennessee, and then addressed the assemblage. His address was devoted almost entirely to the consideration of his predecessor's career as an expounder of the Federal Constitution. He said in part:

"It was not until the question that emerged from the exciting

struggle of 1Soo brought it into play that the scope of the judicial power was developed and declared and its significant effect upon the future of the country recognized. As the Constitution was a written instrument, complete in itself and containing an enumeration of the powers granted by the people to their Government-a Government supreme to the full extent of those powers-it was inevitable that the issues in that contest (as indeed in so many others) should involve Constitutional interpretation, and that finally the judicial department should be called on to exercise its jurisdiction in the enforcement of the requirements of the fundamental law."

The people, he continued, in establishing their future Government, had assigned to the different departments their respective powers, and prescribed certain limits not to be transcended, and that those limits might not be mistaken or disregarded the fundamental law was written. And, as the Chief Justice observed, "to what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?"

He quoted Chief Justice Marshall's famous utterances to the effect that the Constitution must be interpreted by its intention and said of his words in that connection: "These were apparently plain legal rules of construction, yet in their application is to be found the basis of the National fabric; the seed of the National growth; the vindication of a written form of Government, and, simple as they now appear to be, their successful application then required the highest judicial qualities."

In closing, Chief Justice Fuller said: "And so the great Chief Justice, reconciling The jealousy of freedom with the independence of the judiciary' for a third of a century, pursued his stately way, establishing, in the accomplishment of the work given him to do, those sure and solid principles of Government on which our Constitutional system rests. The nation has entered into his labors, and may well bear witness, as it does to-day, to the immortality of the fame of this 'sweet and virtuous soul' whose powers were so admirable and the results of their exercise of such transcendent consequence.".

SWAN ALUMNI.-The engagement of Claude B. DeWitt, 'oo, to Miss Tella Axline is announced. Bro. DeWitt is practicing law in Sandusky, Ohio. C. R. Brewer, '99, has been retained as law clerk in the Secretary of State's office (Ohio) under the new administration. Reed H. Game, '99, is now assistant prosecuting attorney of Columbus, Ohio, having taken the place vacated by Geo. W. Bope, '97.