TENANTS IN COMMON-LEASES - HOLDING OVER. - A and B leased a building of which they were cotenants, to a firm composed of B and C. Upon the expiration of the lease, B, against the will of A, gave the firm written permission to occupy the premises temporarily, pending removal. The lessees accordingly held over, whereupon A sued for his fraction of rent for the new year. Held, that the defendants are to be regarded as occupying the premises after the expiration of the lease as cotenants of the plaintiff, and are liable, at most, only for occupation rent. Valentine v. Healy, 178 N. Y. 391. The tendency of the more recent decisions, as well as the English practice, is opposed to the New York rule that a tenant in common who has taken a lease of the moiety of his cotenant, is not liable as under a new lease for holding over. See O'Connor v. Delaney, 53 Minn. 247; Leigh v. Dickeson, L. R. 15 Q. B. D. 60. The New York court has, however, extended the principle by including within it the case stated. It is clear that the firm of B and C occupied the premises purely by virtue of the relationship of landlord and tenant which the lease established between it on the one side and A and B on the other; and it is difficult to see how it can be held to shift to the position of cotenant, especially since one of its members had no interest in the property. If a partnership may properly be considered a distinct legal entity, the view advanced becomes more difficult to support. See Henry v. Anderson, 77 Ind. 361; Valentine v. Healy, 86 Hun (N. Y.) 259. Furthermore, to attain the result reached here one must do violence to the rule that one tenant in common cannot bind his cotenant without the latter's consent. Mussey v. Holt, 24 N. H. 248. - TRUSTS-CREATION AND VALIDITY - REVOCATION. The defendant's intestate made a deposit of her own money in a savings bank "as trustee for " the plaintiff. Later the account was transferred to her own name, and finally withdrawn; one-half of it was then redeposited in trust for the plaintiff, and remaining intact at the depositor's death was turned over to the former, who made claim for the balance. The plaintiff knew of neither deposit until a year after the depositor's death. Held, that the original trust is merely tentative, revocable at will until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration. Totten v. Lattan, 31 N. Y. L. J. 1717 (N. Y., Ct. of App., Aug. 5, 1904). The New York court formerly held that a deposit by one person in trust for another raises the presumption that a trust was intended; and where no evidence of a contrary nature appeared, the beneficiary was allowed to recover. Martin v. Funk, 75 N. Y. 134; contra, Clark v. Clark, 108 Mass. 522. Where the depositor's real intent was to evade a rule of the bank, or to avoid taxation, this presumption is rebutted and no trust is created. Brabrook v. Boston, etc., Bank, 104 Mass. 228. The principal case expressly establishes a new doctrine in New York, and seems to lay down different rules according as the question arises before or after the donor's death, allowing revocation before death of what after death would be presumed an absolute trust. This would seem an unfortunate distinction, as it tends to obscure the vital question as to the intent of the donor at the time of making the deposit. If he then intended to create a trust, it should be irrevocable, unless the power of revocation was expressly reserved at that time. Mabie v. Bailey, 95 N. Y. 206. TRUSTS FOLLOWING TRUST PROPERTY-CONVEYANCE to a VolunteeR. — A trustee at the request of the cestui conveyed the trust estate to a volunteer with notice. It was the intention of all the parties that the volunteer should hold free from the trust. Semble, first, that the volunteer took free from the trust; second, that this was not an assignment of an interest in land within Mass. Rev. Laws c. 127, § 3. Matthews v. Thompson, 71 N. E. Rep. 93 (Mass.). See NOTES, p. 53. TRUSTS POWERS AND OBLIGATIONS OF TRUSTEES LIABILITY FOR INTEREST. - The defendant's intestate retained certain extra commissions allowed him as trustee by a decree of the court. On an appeal taken from this decree, the decision was reversed and the plaintiff adjudged entitled to the sum thus retained. The plaintiff then sought to charge the defendant with interest. Held, that the plaintiff is not entitled to interest. Southern Ry. Co. v. Glenn's Adm'r, 46 S. E. Rep. 776 (Va.). As the defendant kept his commissions in good faith and under judicial sanction, the court refused to charge him with interest. This result seems opposed to the general rule, which is well settled that a trustee is liable for interest on trust funds which he deals with in violation of the trust. McComb v. Frink, 149 U. S. 629. This rule is also followed where the trustee acts wrongfully but in good faith. McCauselard's Appeal, 38 Pa. St. 466; see Powell v. Hulkes, 33 Ch. D. 552. There is, however, some authority for the view that where a fiduciary acts innocently, he will not be held liable for interest. Pulliam v. Pulliam, 10 Fed. Rep. 53. It is submitted that the former rule is not only supported by the weight of authority, but is correct on principle. As the trustee has had the use of the money and has deprived the cestui of the benefit of it, it seems only fair to the latter to charge the trustee with interest. His good faith should make no difference in the result. WATERS AND WATERCOURSES-NATURAL WATERCOURSES - RIPARIAN RIGHTS OF RAILWAY COMPANY TO ABSTRACT WATER FOR SUPPLYING LOCOMOTIVES. A railway company, owning a narrow strip of land along a stream, laid a pipe between the stream and a tank from which they proposed to supply their locomotives with water. The defendant, who owned a mill situated lower down the stream, took up the pipe; wherupon the railway company sought an injunction against further interference by him. Held, that the injunction be refused, since the proposed user is unlawful, even though no material damage be caused thereby. McCartney v. Londonderry, etc., Ry. Co., [1904] A. C. 301. In This is the third time that the question of a railway's right to take water from a stream for the use of its locomotives has been passed upon by an English court. the first case, the use was forbidden because it impeded navigation. Attorney-General v. Great Eastern Ry. Co., L. R. 6 Ch. App. 572. The second case, between a lower mill-owner and the railroad, was decided in favor of the latter. Earl of Sandwich v. Great Northern Ry. Co., L. R. 10 Ch. D. 707. The present decision in the House of Lords overrules the last case, and definitely settles the point in England. The court proceeds upon the ground that as the water was to be used chiefly off the land its taking was unlawful Cf. Swindon Waterworks Co. v. Wilts, etc., Navigation Co., L. R. 7 H. L. 697. Furthermore it is argued that while the mill-owner might suffer no material damage, nevertheless a right of his was being infringed which would in time give the railway company a right by prescription. Such infringement of a right is generally held actionable Blodgett v. Stone, 60 N. H. 167. The decision seems clearly sound and is in accord with the authorities in this country. Clark v. Pennsylvania R. R. Co., 145 Pa. St. 438. WATERS AND Watercourses - SubterRANEAN AND PERCOLATING WATERS RIGHT TO APPROPRIATE PERCOLATING WATERS.-Held, that a property owner may collect percolating waters for use off the land although he thereby drains a well on neighboring premises, the waters from which had been used only for domestic purposes. Houston, etc., R. R. Co. v. East, 81 S. W. Rep. 279 (Tex., Sup. Čt.). This decision is in accord with the English rule. See 16 HARV. L. REV. 295; 17 ibid. 426. BOOKS AND PERIODICALS. I. LEADING LEGAL ARTICLES. EXTRINSIC EVIDENCE IN AID OF INTERPRETATION. This important and difficult subject is examined by Sidney L. Phipson in a recent article, Extrinsic Evidence in Aid of Interpretation, 20 L. Quar. Rev. 245 (July, 1904). The article is a clear discussion of Wigram's classic work and the many criticisms thereon, and offers independent ideas of value as well. Mr. Phipson stands by Wigram's treatment of interpretation as a question of evidence, thus taking issue with Professors Thayer and Wigmore. As to the object of interpretation whether, as Wigram maintains, it is to ascertain the meaning of the words, or, as Hawkins and Thayer hold, to learn the intention of the writer - Mr. Phipson concludes that Hawkins's hypothesis is preferable. He finds the rejection of declarations of intention, when strictly considered, not really in conflict with Hawkins's contention. He thinks it not necessary, however, to adopt either theory in its more rigid form and approves Professor Graves's standpoint "that the object is to discover the meaning of the words as intended by the testator." Coming to the two opposing classifications and general rules as to the evidence receivable, Mr. Phipson again prefers Hawkins to Wigram. After elaborate examination he says that "Wigram's distinction between explanatory evidence' and 'evidence of intention' cannot be supported, and that Mr. Hawkins and others are more correct in considering all extrinsic facts tendered in aid of interpretation to be, in effect, evidence of intention. circumstantial or direct. With regard, however, to the general rule of each writer, it is clear that since the admission of extrinsic evidence is determined by a variety of principles it would be well-nigh impossible to devise any simple general rule ... which could be made to do the work of all possible special ones." The author then points out that Wigram's explanatory evidence is not "always admissible," nor his evidence of intention "always inadmissible," and that Hawkins's view that circumstantial evidence of intention is invariably admissible cannot be sustained. Mr. Phipson declares that in reducing the various rules and principles to seven working propositions, Wigram seems to have done all that is possible to secure condensation without sacrificing adequacy or exactness. Examining these propositions in detail, Mr. Phipson upholds the second, that primary meanings must if sensible inflexibly prevail, against Professor Thayer's doctrine that if relevant facts favor a secondary meaning that may be adopted. Proposition III is declared correct if properly read with the others, provided it means "the clear modern rule that after proof of an object or objects substantially though incorrectly answering the description, further evidence, e. g., of treatment. dealing, and habits of speech, although not of course of direct declarations, is admissible to show that the testator in fact intended to refer to the object alleged." Except for the "now untenable proposition that no fact can be material which is not coincident in point of time with the making of the will," Proposition V is sustained. Though Proposition VII, as to equivocation, is not criticised, Hawkins's objection to Wigram's reasons for the admission of declarations of intention is considered strong, when he says that thus defining what is indefinite is making "a material addition to the will," and that it is only an historical anomaly that such evidence is not admissible generally. Mr. Justice Holmes's rejoinder in the HARVARD LAW REVIEW, Vol. XII. pp. 418, 419, is held not to meet these strictures satisfactorily. Subject to these modifications, Mr. Phipson finds in the Propositions the true value of Wigram's work, and declares they appear still to embody the most accurate and exhaustive statement of the law on the present topic. A BRIEF HISTORY OF THE PAROL EVIDENCE RULE. - The interesting and valuable results of an original investigation into the sources and development of the rule by which the written memorandum of a transaction is declared to be conclusive as to its terms, is contained in a recent article by Professor Wigmore of the Northwestern University Law School. A Brief History of the Parol Evidence Rule, 4 Columbia L. Rev. 338 (May, 1904). The doctrine was unknown to the Germanic invaders of Rome and Western Europe. A general ignorance of letters and the existence of a "legal system of formal oral transactions" combined to strip the carta, or document of that period, of further value than as a means of effecting a formal symbolic delivery of land, and of preserving the names of witnesses upon whom alone reliance was placed for proof of the terms of the transaction. A notable advance in the status of written documents appeared with the rise of the seal. The principle that the king's word is indisputable gained for a document bearing his seal incontestability. As the use of the seal came to be extended to all persons, it carried with it the same attributes until, by the thirteenth century, the incontestability of sealed instruments was complete. Consequently the office of witnesses as vouchers for the terms of the original transaction receded into unimportance. But ignorance, coupled with the fact that all transactions affecting land were still practised with oral forms, prevented writings from becoming more than an alternative kind of proof. However, mercantile custom had already led the advance, and a tendency to become lettered had brought with it an appreciation of the trustworthiness of writing as against the "shiftiness of mere testimonial recollection." So a growing unwillingness of the judges to admit to the jury oral transactions calculated to overturn the words of the writing made for the new principle. Meanwhile the theory of the rule was undergoing a transition. At first the idea prevailed that he who has sealed a document is estopped from proving the terms of the transaction by witnesses. But more important was the theory of the inferiority of certain writings to others, which involved the notion that the sealed instrument discharged or replaced all others. Mr. Wigmore then explains how, with this preparation, the beginning of the final advance to the modern idea was marked by the Statute of Frauds and Perjuries. This legislation, by abolishing the practice of creating freehold estates by oral livery of seisin only, and the necessity of the seal in the case of leases, emphasized the constitutive nature of the document and extended the conception to all writings. This idea was followed in other transactions not affected by the statute, and the modern view came into complete existence. In conclusion Mr. Wigmore points out that the principle of the indisputability of the king's word as embodied in his sealed document led to the conception that the written records of his court were incontestable as well; so that the "notion of a constitutive writing is now extended to include the record of a judicial proceeding." ACTIONS FOR MALICIOUS PROSECUTION. Silas Alward. Considering chiefly the question how far defendant's obtaining opinion of counsel is to be considered probable cause. 40 Can. L. J. 296. ACTS IN EMERGENCIES AS CONSTITUTING CONTRIBUTORY Negligence. Glenda Burke Slaymaker. 58 Cent. L. J. 463. AMERICA'S CONTRIBUTION TO THE LITERATURE OF INTERNATIONAL LAW AND DIPLOMACY. John W. Foster. 13 Yale L. J. 409. ASPECTS OF THE MEANING OF THE WORD "CONCURRENT" IN USE WITH FIRE INSURANCE POLICIES, SOME. M. C. Phillips. Brief examination of the few cases in point. 59 Cent. L. J. 62. BABYLONIAN LAW. Ross G. Murison. A brief outline of the Code of Hammurabi. 3 Can. L. Rev. 439. BRIBES TO AGENTS. Anon. Commenting adversely on a recent Ontario case. 40 Can. L. J. 489. BRIEF HISTORY OF THE PAROL EVIDENCE RULE, A. bia L. Rev. 338. See supra. CANCELLATION OF A FIRE INSURANCE POLICY, THE. John H. Wigmore. 4 Colum M. C. Phillips. 59 Cent. L. J. 123. CASE OF PENTAL ISLAND, The. W. Harrison Moore. Discussing the boundary dis. pute between Victoria and New South Wales. 20 L. Quar. Rev. 236. CHRISTIAN SCIENCE AND THE LAW. Irving E. Campbell. 10 Va. L. Reg. 285. CIVIL CODE OF LOUISIANA AS A DEMOCRATIC INSTITUTION, THE. Charles E. Fenner. Comparing the Louisiana code with uncodified common law and arguing for the superiority of the former. 12 Am Law. 331. CONFLICTING OPINIONS IN THE MERGER CASE, THE. Bruce Wyman. 16 Green Bag 298. CONSOLIDATIONS OR TRUSTS. Theodore D. Gottlich. An outline summary of the origin, growth, and development of corporations, with a review of the first attempts towards trust consolidation. 27 N. J. L. J. 165. CONSTITUTIONAL LAW OF THE UNITED STATES AS MOULDED BY DANIEL WEBSTER. Everett P. Wheeler. 13 Yale L. J. 366. CORPORATIONS of Two States. Joseph Henry Beale, Jr. 4 Columbia L. Rev. 392. CRITICAL ANALYSIS OF THE LAW AS TO MISTAKE IN ITS EFFECT UPON CONTRACTS. Truman Post Young. 38 Am. L. Rev. 334. CROWN AS REPRESENTING THE STATE, THE. P. Cobbett Pointing out difficulties in Australian law arising from failure to recognise the State as a legal person and from the attempt to make the King serve that purpose. I Commonwealth L. Rev. 145. DELIVERY OF POLICY AS CONDITION INSURANCE. Guilford A. Deitch. decisions. 59 Cent. L. J. 28. PRECEDENT TO COMPLETE CONTRACT OF DEPOSIT OR BAILMENT IN A CLOTHING ESTABLISHMENT. Nathan Newmark. 58 Cent. L. J. 405. DIFFERENCES BETWEEN ENGLISH AND COLONIAL LAW, SOME. Everard Digby. Contrasting law of England with that of New South Wales. 29 L. Mag. & Rev. 294. DOMESTIC SERVANTS. Geo. S. Holmested. Discussing how far English law that a general hiring is for a year terminable at a month's notice is applicable in Canada. 24 Can. L. T. 125. ENFORCEMENT ABROAD OF STOCKHOLDERS' OR DIRECTORS' LIABILITY, THE. Joseph Henry Beale, Jr. 16 Green Bag 387. ENGLISH HISTORY AND THE STUDY OF ENGLISH LAW. Arthur Lyon Cross. Indicating the importance of the study of English History to a scholarly knowledge of the common law. 2 Mich. L. Rev. 649. EQUITABLE DOCTRINE OF MARSHALLING ASSETS OF DECEDENT'S ESTATE FOR EQUITABLE MORTGAGES. A. H. Marsh. 24 Can. L. T. 134. -- - A SKETCH OF THE EARLIER HISTORY OF THE LICENSING LAWs. H. J. Randall. 20 L. Quar. Rev. 316. EXTRINSIC EVIDENCE IN AID OF INTERPRETATION. Sidney L. Phipson. 20 L. Quar. Rev. 245. See supra. FISHERMEN AND THE LAW. John J. O'Connor. Pointing out differences between the law as applied to fishermen and as applied to other seamen. 16 Green Bag 582. FORMER JEOPARDY. O. B. Harvey. Distinguishing the plea of former jeopardy, using the word in its strict sense, from that of former acquittal or conviction. Va. L. Reg. 410. FRAUDULENT PREFERENCES. A. Rives Hall. An exposition of Quebec law on the subject. 3 Can. L. Rev. 290. FREE SPEECH AND FREE PRESS IN RELATION TO THE POLICE POWER of the STATE. P. L. Edwards. Arguing that statutes prohibiting publication of criminal news are constitutional. 58 Cent. L. J. 383. FUTURE INTERESTS IN LAND. Edward Jenks. An attempt "to restate, in short and simple form, the doctrine of future interests in land, as it results from modern English law." 20 L. Quar. Rev. 280. FUTURE OF INTERNATIONAL LAW, THE. Allen E. Rogers. 16 Green Bag 322. HOW JUDGMENTS ARE AFFECTED BY THE "FULL FAITH AND CREDIT SECTION OF THE UNITED STATES CONSTITUTION AND THE ACTS OF CONGRESS OF MAY 26, 1790, AND MARCH 27, 1804. Geo. P. Costigan, Jr. Pointing out likenesses and differences between strictly foreign judgments and judgments of sister States. 38 Am. L. Rev. 350. ILLOGICAL TREND IN RES ADJUDICATA, AN. Sam'l C. Williams. A protest against IMPEACHMENT OF WITNESSES BY PROOF OF SPECIFIC WRONGFUL ACTS. James Rev. 302. Anthony Pulbrook. 29 L. Mag. & INAPPLICABILITY OF DECISIONS UNDER THE BRITISH NORTH AMERICA ACT TO CASES ARISING UNDER THE CONSTITUTION OF THE COMMONWEALTH, THE. A. Inglis Clark. I Commonwealth L. Rev. 193. INTERNATIONAL LAW IN LEGAL EDUCATION. James B. Scott. 4 Columbia L. Rev. 409. INTER-STATE SERVICE OF PROCESS. Paris Nesbit. Discussing provisions of the federal constitution of Australia. I Commonwealth L. Rev. 203. IRREGULAR ASSOCIATIONS. George Wharton Pepper. A preliminary study for a chapter on the Law of Association which the writer has in course of preparation. 52 Am. L. Reg. 409, 504, 576. IS THE JUDGMENT OF THE DIRECTORS OF BUSINESS CORPORATIONS CONCLUSIVE IN DETERMINING THE VALUE OF PROPERTY TAKEN IN PAYMENT OF ITS STOCK? Henry P. Molloy. 66 Albany L. J. 207. IS THIS RIGHT? Donald Macmaster. A plea for reform in practice in bringing appeals to the Privy Council. 3 Can. L. Rev. 355. JUDICIAL CONSTITUTIONAL AMENDMENT AS ILLUSTRATED BY THE DEVOLUTION OF THE INSTITUTION OF THE JURY FROM A FUNDAMENTAL RIGHT TO A MERE METHOD OF PROCEDURE. Frederic R. Coudert. 13 Yale L. J. 331. |