tions, as well as other requirements establishing conditions precedent to the right of the covenantee, are common and are held not to invalidate the covenants." On the whole, it would seem that the doctrine of exempting covenants for perpetual renewal from the application of the rule against perpetuities must be regarded as a pure exception. Indeed, some American courts have refused to recognize it. It is impossible, therefore, to argue from this exceptional doctrine as a basis. A covenant to convey a fee at a remote time clearly creates an interest in land. That interest is subject, however, to the condition that the covenantee shall elect to take a conveyance of the fee; and if the covenant permits the condition to be fulfilled at too remote a time, the rule against perpetuities is infringed. It is well settled that to be valid an executory interest in a legal estate created by means of a shifting or springing use must be so limited that it must necessarily take effect, if at all, within the period required by the rule. 10 In the case of the covenant to convey there is a springing limitation of the equitable estate, since upon the election of the covenantee to purchase, the equitable estate passes from the covenantor and vests in him; and if such a limitation of the legal estate by way of springing or shifting use is void, it is hard to escape the conclusion that the same must be true in the case of the equitable estate. In other words, there is no difference, for the purposes which the rule against perpetuities is designed to accomplish, between an option to purchase and what is called a conditional limitation; and both must take effect within the time required by that rule. RIGHTS RESULTING FROM ADVERSE POSSESSION OF ONE CLAIMING LESS THAN THE FEE. - An adverse possessor usually claims the fee; but in some cases he admits the title of a third party, while disputing that of the real Owner. In such cases the question arises as to whether he acquires title for himself against all the world by virtue of a possession adverse to the true owner. It is settled in cases where one enters as life tenant under a void will and remains for the statutory period that the true owner is barred, but that the life tenant and his privies cannot dispute the title in fee simple of the remainder man under the will. The same rule holds in the case of one who enters as life tenant under a deed from a grantor who has no title.2 An interesting extension of the doctrine to be deduced from these cases is suggested by a case decided a short time ago in Minnesota. The defendant entered the plaintiff's land thinking that it belonged to the United States and meaning to acquire a homestead. He remained in possession longer than the statutory period, when the plaintiff attempted to eject him. The court held that the plaintiff was barred, and intimated that the defendant had acquired the fee. Maas v. Burdetzke, 101 N. W. Rep. 182. Two theories have been advanced to explain these cases. One is that the adverse possessor is estopped from denying the title of the one under whom he has been claiming. The other is that the adverse possessor is 7 See Finch v. Underwood, 2 Ch. D 310; Sweet v. Anderson, 2 Bro. P. C. 256. 8 See London, etc., Railway v. Gomm, supra. 9 Morrison v. Rossignol, 5 Cal. 64. 10 Sug. Gilb. Uses, 3rd ed., 156, 157. 1 Board v. Board, L. R. 9 Q. B. 48. 2 Dalton v. Fitzgerald, [1897] I Ch. 440. analogous to a tortious feoffee, and that the tort may be cured by lapse of time. When cured it leaves the adverse possessor with a clear right to just what he claimed. If he claimed that the fee was in some person other than the true owner, the latter would be barred, and the fee would be in the third person. If the defendant in the principal case filed the usual homestead application and received permission to enter from the government, he would be a mere licensee and could not on either theory dispute the title of the United States. Assuming, however, that he entered without the knowledge or permission of the government, would the mere recognition that it owned the fee be sufficient on either theory to pass the title to the government? The only possible estoppel is in pais. This form of estoppel arises out of either contract or conduct. Clearly no contract basis exists here, and to create an estoppel from conduct it is essential that one party should have so acted on a representation of the other that it will be a detriment to him to allow the falsity of the representation to be asserted. If there was no relation between the parties, no basis for an estoppel can be found, and the adverse possessor would hold the fee. On the other theory, however, the adverse possessor would get by lapse of time no more than he claimed, which was not the fee, but a right to acquire a homestead patent. Under a regulation of the Somestead laws he has lost that right here. As he has claimed for the statutory period that the fee is in the United States, it would, under this theory, acquire the fee, a result most surprising from a practical standpoint. COURT'S DISCRETION TO EXCLUDE CUMULATIVE EVIDENCE. - As to how far a judge may exercise his discretion in a jury trial to exclude relevant evidence on the ground that it is merely cumulative, there is a great conflict of opinion except in two classes of cases. It is the uniform rule that expert evidence should be confined within reasonable bounds. From its very nature an indefinite number of witnesses might otherwise be called, each necessitating so much additional expense, vexation, and delay in demonstrating his competency and presenting his theory. Moreover, while expert witnesses may agree as to essentials, they are very apt to differ upon minor matters. These little discrepancies grow in importance with continued repetition until the juror's mind, seizing upon them as the essentials, distrusts all expert testimony as inherently uncertain. Consequently the trial court has been uniformly allowed to exercise discretionary power in limiting the introduction of such testimony. Likewise, when evidence is introduced to prove character or usage, the same rule applies, for if the best witnesses are not believed, others can hardly be hoped to produce conviction.2 1 In all other cases there is an utter lack of harmony. On the one hand, it is contended that such exclusion may render difficult the task of establishing the point in controversy. On the other, it is argued that the time and energy of the court should not be consumed in hearing and sifting an unending mass of evidence, which has little or no probative value. Influenced by these conflicting motives, different jurisdictions have adopted 8 Bigelow, Estoppel, 5th ed., 455 1 Fraser v. Jennison, 42 Mich. 206. widely varying rules as to the judge's power of exclusion. Statutes in several states provide that cumulative evidence may be rejected when the issue to which it relates has been settled beyond a reasonable doubt. Such a rule is obviously undesirable in that it compels the judge to pass upon questions of fact before they go to the jury. In some jurisdictions, cumulative evidence may be rejected upon collateral issues, but not upon the main issue. This distinction is clearly unsound, since the reason for rejecting such evidence is that its evil effects outweigh its probative value. In others, the court is denied all power of exclusion except when the fact sought to be established is not controverted. A recent Massachusetts case supports this view, holding that evidence should not be excluded on the ground that testimony already introduced, if believed, amounts to proof. Perkins v. Rice, 72 N. E. Rep. 323. This rule ignores the fact that the probative value of evidence, merely cumulative in its nature, may be far outweighed by its disadvantages in expense, delay, and confusion to the minds of the jury. The rule which undoubtedly meets with the greatest favor gives the trial judge a discretionary power of exclusion subject to review by the upper court." Upon principle, too, this seems to present the most satisfactory method of procedure, for it tends to keep down the expenses of litigation, prevents the accumulation of a confused mass of evidence from which it is difficult to sift the truth, and secures to the parties a mode of redress in case of possible error. THE VICE-PRINCIPAL DOCTRINE. Whatever may be the basis of the fellow-servant doctrine, whether that doctrine is an application of the general rule that one man is not liable for the torts of another, or is an exception to the principle of respondeat superior, the courts in applying it almost universally rest their decisions upon the theory of assumption of risk. Among the risks which a servant takes upon himself as incident to the employment is that of injury from the negligence of fellow-servants; but risks arising from the negligence of the master he does not assume.1 As to how far he assumes the risk arising from the negligence of one standing in the master's place, there is a conflict of opinion. By the "superior servant" doctrine, formulated in Ohio, an employee assumes no risk of injury from the negligence of any servant who has control over him. Accordingly the master is liable for injury to a servant resulting from the negligence of the superior servant in doing any act or giving any order within the scope of his authority even though it pertain to some detail in the operation of the business. 2 Although the courts of several states and the United States Supreme Court approved this view, New York adopted as the true test of the master's liability, not the rank of the negligent servant, but the character of the negligent act.5 The master owes to the servant certain duties which he dele 8 Cal. Code Civ. Pro. T 2044. Fisher v. Conway, 21 Kan. 18, 24. 6 Abenheim v. Samuels, 5 N. Y. Supp. 117. Hupp v. Baring, 8 Oh. C. Ct. 259; State v. Whitton, 68 Mo. 91. 1 Farwell v. Boston & Worcester R. R., 4 Met. (Mass.) 49. In England and several of our states employers' liability has been largely extended by statute. 2 Little Miami R. Co. v. Stevens, 20 Oh. 415. 8 Walker v. Gillett, 59 Kan. 214. Chicago, etc., R. Co. v. Ross, 112 U. S. 377. 6 Crispin v. Babbitt, 81 N. Y. 516. gates at his peril. Any servant, of whatever rank, entrusted with the performance of these duties is a vice-principal, and no servant is a viceprincipal simply on account of his rank. The master is therefore not liable for the negligent act of a servant in matters of detail in conducting the business. For example, it is a master's duty to supply safe appliances, but under some conditions it is part of the servants' work to construct the appliance from materials supplied by the master. In such a case his liability ends when he supplies sound materials. Thus the construction of temporary scaffolding, to be shifted as the erection of the building progresses, has been held a part of the servants' work. Therefore a master is not liable for injury resulting from negligent construction, even though the injured servant was doing a different class of work from that of the delinquent servant. Hempstock v. Lackawanna Iron and Steel Co., 90 N. Y. Supp. 663. 7 The New York theory is at present accepted by the United States Supreme Court and by the great weight of authority. Some courts, however, apply it with a limitation closely akin to the "superior servant" doctrine. They hold that a general manager or head of a department, to whom the master has delegated all his functions, is a vice-principal by virtue merely of his official position. This exception seems on principle to be unwarranted. No reason appears why official position, if made the test under these particular circumstances, should not be extended to the case of every superior servant. This exception should stand on the same footing with the "superior servant" doctrine, which is far less satisfactory than the theory which makes the character of the negligent act the test. There would seem to be no reason for contending that a servant did not assume the risk of a negligent act solely because it was done by his superior. On the other hand, if the act was done in the performance of a duty not delegable by the master, the injured servant did not assume the risk of injury from such an act, whether done by a servant superior or inferior in rank to himself. When a ABANDONMENT AND SUBROGATION IN MARINE INSURANCE. ship is injured by a wrongdoer, if the insurer accepts an abandonment of it and pays as if there had been a total loss, he is given a claim upon the right of action which the insured has against the wrongdoer. This claim has been explained in two ways. The leading English case,1 although its decision is consistent with either theory, supports the view that the abandonment carries with it the money claim against the tort-feasor as an equivalent of the spes recuperandi. There are American opinions to the same effect. On the other hand, it has been suggested that the insurer's claim rests upon the principle that in all contracts of indemnity anything coming into the hands of the insured, which reduces the loss, becomes subject to an equity in favor of an indemnifier who has already paid. Usually either theory would permit the same decision, but in a recent case a choice Beesley v. Wheeler, & Co., 103 Mich. 196. 7 Baltimore & O. R. Co. v. Baugh, 149 U. S. 368. 8 Fox v. Spring Lake Iron Co., 89 Mich. 387. 9 Quincy, etc., Co. v. Kitts, 42 Mich. 34. 1 North of Eng., etc., Ass'n v. Armstrong, L. R. 5 Q. B. 244. 2 Comegys v. Vase, 1 Pet. (U. S.) 193. 3 Burnard v. Rodocanachi, 7 App. Čas. 333, per Lord Blackburn. between them was made imperative. The insured under a valued policy abandoned the ship and collected the insurance. Later he recovered a larger amount from the one who had caused the loss. By the first theory this entire amount would go to the insurer; but the court adopted the second view, and allowed the insurer only what he had paid the insured. Livingstone, 130 Fed. Rep. 746 (C. C. A., Second Circ.). 4 The The correctness of the first theory depends upon the effect of the abandonment of a ship. There is nothing in its nature which makes it different from the abandonment of any other property. When accepted by the insurer it makes him the owner of the ship and entitles him to all rights incident to the property, for example, the right to freight not earned before the completion of the voyage. But it does not give him rights not incident to his ownership, such as the right to freight earned either pro rata or by delivery of part of the cargo before the casualty.5 The claim against the tort-feasor did not arise from the violation of a right, incident to the insurer's ownership. The tort-feasor did no damage to the property after the insurer became the owner. This claim, then, differs in nature from the spes recuperandi with which it is so often confounded and from all other claims which are based upon the ownership of property transferred by the abandonment. It would seem, therefore, that the origin of the insurer's claim to the money recovered from the tort-feasor must be explained on the theory of subrogation. 6 There seems to be nothing in the nature of a valued policy to prevent the application of principles of subrogation. The mere fact that it is valued does not change its nature as a contract of indemnity. That simply fixes the amount which as between the insurer and insured shall be taken as the valuation in case of total loss. Consequently the insured, when paid this amount, cannot complain if the insurer is given all sums recovered up to the amount of the valuation, no matter what is the real value of the ship. But since the only reason the insurer has any claim upon the sums recovered by the insured is that he has paid for a loss which later is otherwise recompensed, it is obvious that his claim must be commensurate with the amount paid and must be satisfied when that amount is returned. It is not a violation of equitable principles for the insured to receive a full recompense even though that recompense exceed a valuation which he had previously made; and, in any case, it is difficult to see how the insurer, fully recouped, can have any claim for the excess. IMPOSSIBILITY BY LAW AS EXCUSE FOR BREACH OF CONTRACT. Of the grounds commonly recognized as affording a defense to actions upon contract, none is more clearly established than impossibility by operation of domestic law. The rule governing these cases has been applied where the promisor has been prevented from lawfully carrying out his obligation by the acts of the executive branch of the government as well as where the impossibility is due to subsequent legislative enactments.1 4 Mason v. Marine Ins. Co., 110 Fed. Rep. 452. 5 Red Sea, [1896] P. 20. • Rogers v. Hosack's Executors, 18 Wend. (N. Y.) 319. 1 Touteng v. Hubbard, 3 Bos. & Pul. 291; Cordes v. Miller, 39 Mich. 581; Baily v. De Créspigny, L. R. 4 Q. B. 180. |