aiding in the sale has been held where the act was not that of buying. Johnson v. People, 83 Ill. 431. Nevertheless, the buyer is generally not held. Lott v. United States, 205 Fed. 28. The principal case gives as an explanation that if the buyer were held in prosecuting the seller, he could not then be forced to testify to the sale because of self-incrimination. But this interpretation of the statute is valid only if such an intention may be implied. And it seems improbable that such positive considerations of policy were present in the minds of the legislators. Rather, it would seem that since the statute was enacted to protect the buyer from himself there was an entire absence of intent to make him liable under it. Cf. Regina v. Tyrell, [1894] I Q. B. 710. If the buyer is not liable for the act of buying, he is surely exempt from liability for an act so necessarily consequent upon buying as the transportation of the goods purchased. The principal case seems correct in extending this exemption to the agent of the buyer. Cf. Bonds v. State, 130 Ala. 117, 30 So. 427; Campbell v. State, 79 Ala. 271.

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LEGACIES AND DEVISES MARSHALLING ASSETS - EXONERATION OF SPECIFIC DEVISEE FROM COVENANT RUNNING WITH THE LAND. A lessor covenanted for himself and assigns to erect a building on the demised premises on demand by the lessee. The latter promptly demanded performance, but without success. Eight years later the lessor died, having specifically devised the reversion. His executor, upon a fresh demand, performed the covenant, and now seeks reimbursement from the specific devisee. Held, that the executor cannot recover. In re Hughes, [1913] 2 Ch. 491.

As the covenant bound both the devisee and the executor, the question is simply which must exonerate the other. The result is probably correct on the ground that the covenant had become an overdue obligation of the testator before his death. Barry v. Harding, 1 J. & L. 475; Fitzwilliam v. Kelly, 10 Hare 266. But the court's reasoning would be equally applicable, if no demand had been made before that time. It is found that the covenant was intended to be performed forthwith" and not "to remain attendant on the lease during its currency," and held that the burden of a covenant so intended must fall on the general estate. Eccles v. Mills, [1898] A. C. 360. The legal principle laid down is probably sound. Where land contracted for is specifically devised, the executor must discharge it from the vendor's claim for the piece. Cogswell v. Cogswell, 2 Edw. Ch. (N. Y.) 231. And a covenant by either party to a lease to make some immediate improvement - intended to be finally performed and over with shortly after the outset of the tenancy may fairly be treated as a price paid for the reversionary or leasehold interest, which the covenantor acquires. Marshall v. Holloway, 5 Sim. 196. The principle also harmonizes with the rule that equity- which prescribes the order of marshalling assets - will impose the burden of a contract upon the land or the promisor according to the original intent of the parties in making it. Mansel v. Norton, 22 Ch. D. 769; John Brothers Abergarw Brewery Co. v. Holmes, [1900] 1 Ch. 188. But a covenant imposing a contingent liability which may persist for years must be intended to "remain attendant on the lease." The mere expectation that it will be performed soon does not alter the character of the covenantor's promise. To treat such an agreement like the temporary, unconditional covenant of Eccles v. Mills would probably violate the testator's intent and certainly cause serious inconvenience. The early English rule that a specific bequest of stock not fully paid up carried with it the right to have future calls met by the executor has been abandoned for these very reasons. Blount v. Hopkins, 7 Sim. 43; Armstrong v. Burnet, 20 Beav. 424; Addams v. Ferick, 26 Beav. 384. Probably the court would not have carried its reasoning in the principal case to its logical result of holding the executor had the demand been made after the testator's death.

LIBEL AND SLANDER PUBLICATION-BY ONE PARTNER TO ANOTHER. The defendant uttered to his business associate defamatory matter concerning the plaintiff. Held, that there was no publication upon which to found an action. Kirschenbaum v. Kaufmann, 50 N. Y. L. J. 406 (N. Y. City Ct.).

It is a broad rule of law that defamation communicated to any third person is, without more, a publication. Snyder v. Andrews, 6 Barb. (N. Y.) 43. And to this proposition there are few exceptions. Defamatory statements made between husband and wife about others, however, constitute one such exception. This is based on the common-law principle that husband and wife are one person. Sesler v. Montgomery, 78 Cal. 486, 21 Pac. 185; Wennhak v. Morgan, 20 Q. B. D. 635. A New York decision, moreover, which the principal case professes to follow, holds that the dictation of a business letter by the manager of a corporation to a stenographer in its employ, being in effect but one corporate act, is not a publication. Owen v. Ogilvie Publishing Co., 32 N. Y. App. Div. 465; see a criticism of this case in 12 HARV. L. REV. 355. The court in the case last cited intimates that were no corporation involved there might be a publication. And such is the law. Pullman v. Hill, [1891] 1 Q. B. 524. See Boxsius v. Goblet Frères, [1894] 1 Q. B. 842, 846; Gambrill v. Schooley, 93 Md. 48, 61, 48 Atl. 730, 731. See 15 HARV. L. REV. 230. Regardless of the soundness of this distinction, it seems difficult to bring the principal case within it. Individual identity is not lost by entering into partnership. And business relationship would seem preferably a ground for according privilege rather than for denying the existence of a prima facie case. Lawless v. Anglo-Egyptian Cotton & Oil Co., L. R. 4 Q. B. 262; Edmondson v. Birch & Co., [1907] 1 K. B. 371.

MASTER AND SERVANT-ASSUMPTION OF RISK-EFFECT OF WARNING THAT EMPLOYEES USING ELEVATOR DO SO AT THEIR OWN RISK.-Plaintiff's husband, employed by the defendant, was killed while riding on defendant's freight hoist, which bore a sign: "Dangerous. Keep off. Persons riding this hoist do so at their own risk." The jury were instructed that if they believed from the evidence that the warning was posted for the purpose of evading the master's duty to provide safe appliances, disregarding the warning would not constitute a defense. Held that the charge was correct. Selden-Breck Const. Co. Linnett, 134 Pac. 956 (Okl.).

A qualified permission, such as in the principal case, is generally held to cast all risk on the one who accepts it. Burns v. Boston Elevated, 183 Mass. 96, 66 N. E. 418. The court argues that that result does not follow here, because the master was trying to evade his duty to provide safe appliances. It is hard to see why the assumption of risk is not as clear in one case as in the other. Moreover, the evasion of the master's duty does not prevent the employee's assuming the risk when the master tells the servant to accept conditions as they are or leave the employment. Lamson v. American Axe & Tool Co., 177 Mass. 144, 58 N. E. 585. But there has grown up in modern law a policy of dealing strictly with employers. In England, indeed, continuing in a business, even where certain dangers are known to exist, is not assumption of risk. Smith v. Baker, [1891] A. C. 325. In this country an employee is never held to have assumed a risk unless it be shown that he exactly comprehended its nature. Miner v. Franklin County Telephone Co., 83 Vt. 311, 75 Atl. 653; O'Toole v. Pruyn, 201 Mass. 126, 87 N. E. 608, sub nom. O'Toole v. N. E. Gas & Coke Co. These results seem to show a recognition by the courts that the pressure of economic conditions may destroy an employee's freedom to select the conditions under which he shall work. On this basis the decision in the principal case can be supported.

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-EXTRATERRITORIAL EFFECT.-An employee who was insured by his employer under the

Massachusetts Workmen's Compensation Act of 1911 was injured in the scope of his employment in New York and sought to recover from the Mutual Liability Insurance Co. Held, that the act contemplates no extraterritorial effect. In re American Mutual Liability Insurance Co., 102 N. E. 693 (Mass.). The principles involved are discussed in this issue, page 271.

NUISANCE NATURE OF RIGHT TO MAINTAIN NUISANCE - EFFECT OF ACTION IN RELIANCE UPON PAROL LICENSE. The plaintiff sued the defendant, an adjoining landowner, for maintaining a nuisance in the form of a pumping station. The defendant claimed an irrevocable license to maintain the nuisance because the plaintiff's grantor, in consideration of the payment of a consensual judgment awarding past and future damages for the nuisance, had discharged the defendant from all claims of this character which at any time might accrue to the owner of the property. Held, that the plaintiff can recover. Panama Realty Co. v. City of New York, 143 N. Y. Supp. 893 (N. Y. App. Div.). This decision reverses the holding of the lower court to the effect that the defendant had acquired an irrevocable license to maintain the nuisance. The court below considered the right to enjoy land free from nuisance as in the nature of a servitude imposed on the adjoining land. It argued, therefore, that a license to maintain a nuisance, when acted upon, would extinguish this easement or right of the owner of the annoyed land to enjoy his land free from nuisance. For a criticism of the decision of the lower court, see 26 HARV. L. REV. 460. The upper court adopts the proper view that the right to maintain a nuisance to adjoining land is essentially an easement, and can arise, therefore, only by grant or prescription.

PATENTS NATURE AND REQUISITES FOR PATENT - PREVIOUS ABANDONMENT AS A BAR. An application was made for a process patent. The applicant had, more than two years before, obtained an apparatus patent, and his application had completely disclosed the process which was the subject of his present application. Held, that the process idea, having been abandoned, could not be patented. Re Leonard's Application for a Patent, 13 East. L. R. 280 (Canada).

In the United States, as well as in Canada, if an inventor in his application distinctly limits his claims for a patent to less than the full scope of the novel ideas disclosed, the unclaimed inventions are made public property. Underwood v. Gerber, 149 U. S. 224, 13 Sup. Ct. 854; McClain v. Ostmayer, 141 U. S. 419, 12 Sup. Ct. 76. It is commonly said that the unclaimed inventions are abandoned or dedicated to the public. Stirrat v. Excelsior Mfg. Co., 61 Fed. 980. These terms, it is submitted, are fictitious, as they imply an intent on the part of the inventor which surely does not exist save in rare instances. The doctrine of abandonment really operates as a forfeiture, in certain circumstances, of the right of the inventor to secure a monopoly of his invention by patent. That this is the true significance of the doctrine is indicated by the reluctance of the courts to find abandonment and their insistence that the proof of it be convincing. Mast v. Dempster Mill Mfg. Co., 82 Fed. 327, 27 C. C. A. 191; Ide v. Trorlicht, Duncker, & Renard Carpet Co., 115 Fed. 137, 53 C. C. A. 341. The courts, nevertheless, treat this fictitious intention as a question of fact and, in accordance with that view, consider that the prima facie appearance of abandonment by unclaimed disclosure in the application may be rebutted by the filing of a separate application for patent on the unclaimed idea. Victor Talking Machine Co. v. American Graphophone Co., 145 Fed. 350, 76 C. C. A. 180; Suffolk v. Hayden, 3 Wall. (U. S.) 315. The result of the principal case would be reached in the United States, not only because of the abandonment, but also on account of the provision in the United States statute that an invention which has been in public

use in the United States for more than two years cannot be the subject of a patent. U. S. Rev. Stat. § 4886; Roemer v. Simon, 95 U. S. 214.

PRESUMPTIONS - EXISTENCE AND EFFECT OF PRESUMPTIONS IN PARTICULAR CASES CHILD-BEARING: PRESUMPTION THAT A WOMAN OF ADVANCED AGE IS INCAPABLE OF CHILD-BEARING.-The defendant having contracted to buy certain land of the plaintiff refused to perform on the ground that a widow more than seventy years of age might have children who would be entitled to an interest in the property. Held, that specific performance will be granted. Whitney v. Groo, 40 D. C. App. Cas. 496.

In cases like the present, American courts have heretofore uniformly held to the presumption that one may have children throughout life. Read v. Fite, 8 Humph. (Tenn.) 328; List v. Rodney, 83 Pa. 483; Westhofer v. Koons, 144 Pa. 26. These cases are clearly distinguishable from the authorities on which they are based. For the purpose of determining questions of remoteness involved in applying the rule against perpetuities, all living persons are regarded as capable of having issue. Jee v. Audley, 1 Cox 324. Such a presumption is entertained in determining a wife's right of dower. See I THOMAS, COKE UPON LITTLETON, 579. For the same reason, the estate of tenant in tail with possibility of issue extinct can never arise so long as persons whose issue might take are still living. Id. 551. These have now become well-established principles of real property touching the creation and termination of estates, and as such unalterable. In the principal case no rule of property law is involved. The purchaser can demand only a title free from reasonable doubt. Lyddale v. Weston, 2 Atk. 19. This is merely a question of fact; and it is submitted that the decision in this case is warranted in the light of human experience, and deserving of great respect for breaking away from artificial rules, and applying common-sense principles. Similar decisions have been rendered by common-law courts outside of the United States. Browne v. Warnock, Ir. R., 7 Ch. D. 3; In re Tinning and Webber, 25 Can. L. T. (Occasional Notes) 38. The same result has been reached in cases involving the distribution of trust funds. Leng v. Hodges, Jac. 585.

QUASI-CONTRACTS RIGHTS AND OBLIGATIONS OF PARTIES UNDER CONTRACT MADE UNENFORCEABLE BY STATUTE OF FRAUDS. -The plaintiff, a broker, was employed to sell timber lands for the defendant under a contract unenforceable by the Statute of Frauds. He procured a customer who bought the property. Held, that the plaintiff cannot recover on a quantum meruit. Cushing v. Monarch Timber Co., 135 Pac. 660 (Wash.).

While the Statute of Frauds bars any action on the contract itself, the refusal to allow a plaintiff to recover for services actually rendered unjustly enriches the defendant. See 21 HARV. L. REV. 544. Accordingly, in analogous cases, a recovery on a quantum meruit has generally been allowed. Wonsettler v. Lee, 40 Kan. 367, 19 Pac. 862; Pulbrook v. Lawes, 1 Q. B. D. 284. Contra, Leimbach v. Regner, 70 N. J. L. 608, 57 Atl. 138. The argument against granting quasi-contractual relief is that it would defeat the purpose of the statute. The fallacy here lies in mistaking the nature of quasi-contractual relief. It is based on an obligation imposed by law for the purpose of producing an equitable result, and not on the contract of the parties. See 24 HARV. L. REV. 158. Moreover, since the services have been rendered, there is no danger of fraud or false testimony as to that fact, so that the evil which the statute is intended to guard against cannot occur. Finally, denying the relief effects a palpable injustice never contemplated by the designers of the statute.

RESTRAINT OF TRADE - STATE ANTI-TRUST LEGISLATION STATUTE PROHIBITING COMBINATIONS OF STOCK CORPORATIONS FOR THE CREATION OF A

MONOPOLY NOT APPLICABLE TO COMBINATIONS OF PUBLIC SERVICE COMPANIES UNDER COMMISSION CONTROL. - The New York stock corporation law provides that no stock corporation shall combine with any other corporation or person for the creation of a monopoly, or the unlawful restraint of trade, or for the prevention of competition in any necessary of life. The defendant is a holding company which controls practically the entire street railway business of the city of New York. Held, that it is not a combination within the prohibition of the act. Continental Securities Co. v. Interborough Rapid Transit Co., 207 Fed. 467 (Dist. Ct., S. D. N. Y.).

The question has aroused great diversity of opinion. The lower New York courts have held that such combinations do not violate the act. AttorneyGeneral v. Consolidated Gas Co. of N. Y., 124 App. Div. 401, 108 N. Y. Supp. 823; Attorney-General v. Interborough-Metropolitan Co., 125 App. Div. 804, 110 N. Y. Supp. 186. The federal courts have maintained a contrary view. Burrows v. Interborough-Metropolitan Co., 156 Fed. 389; Continental Securities Co. v. Interborough Rapid Transit Co., 165 Fed. 945. The state decisions argue that the statute was not intended to apply to public service companies because they are subject to legislative regulation in the interests of the public; and that, if this cannot be inferred from the act itself, it is evident from the passage of subsequent statutes placing public services under commission control. A literal Construction of the sweeping language of the statute, however, would justify the view of the federal cases that all combinations which prevent competition are prohibited. In support of this construction are cases holding that restrictive combinations or agreements, although made by public service companies, are monopolistic and contrary to public policy or anti-trust legislation. People ex rel. Peabody v. Chicago Gas Trust Co., 130 Ill. 268, 22 N. E. 798; United States v. Trans-Missouri Freight Association, 166 U. S. 290. Other decisions, however, maintain that anti-trust legislation is designed to prevent only agreements harmful to the public, and that combinations between public services are not within this description. Yazoo & M. V. R. Co. v. Searles, 85 Miss. 520, 37 So. 939; State v. Central of Georgia R. Co., 109 Ga. 716, 35 S. E. 37. Jurisdictions which have inaugurated commission control seem to have done so believing that regulation of public service companies is preferable to competition between them. See Weld v. Gas and Electric Light Commissioners, 197 Mass. 556, 558, 84 N. E. 101, 102; People ex rel. Edison Co. v. Willcox, 207 N. Y. 86, 98, 100 N. E. 705, 708. This would indeed seem to be the better policy and to justify the courts in taking a rather liberal construction of general anti-trust statutes. McKinley Telephone Co. v. Cumberland Telephone Co., 152 Wis. 359, 140 N. W. 38.

SALES IMPLIED WARRANTY -TITLE - RESALE OF CONFIDENTIAL REPORTS.— R. G. Dun & Co. furnished financial reports to the plaintiff, the latter contracting not to resell. The plaintiff in breach of this agreement sold reports to the defendant, and now sues for the purchase price. Dun, after the transaction had taken place, notified the defendants of his rights, warned them to make no use of the reports, and demanded their return. Held, that the plaintiff may not recover. Carbolineum Wood Preserving Co. v. Carter, 50 N. Y. L. J. 361 (Municipal Court of the City of New York, Oct., 1913).

The court in the principal case gave the defendant a defense because of the plaintiff's breach of an implied warranty of title. In a sale under the New York act there is "an implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale." N. Y. LAWS OF 1911, C. 571, § 94. If the defendant is not a bona fide purchaser for value, equity will enjoin his use of the reports obtained through the plaintiff's breach of his agreement not to resell. Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 N. E. 204; National Tel. News