appear that the condition was part of a scheme to monopolize, and no greater restrictions are laid down than necessary for the plaintiff's interest. Doubtless the decision can be explained because of the modern horror of forfeiture with the consequent willingness of the courts to stretch a point, if necessary, to avoid it. Cf. Clement v. Burtis, 121 N. Y. 708, 24 N. E. 1013.

ESTATES IN FEE SIMPLE - DETERMINABLE FEES IN AMERICA - PROPERTY TAKEN BY EMINENT DOMAIN. — Land belonging to the plaintiff was taken by a railroad by eminent domain proceedings under a statute which provided that the railroad should be "seised in fee . . . and hold and use for the purposes specified." The railroad when it no longer needed the land for its purpose sold it to the defendant. Held, that the rauroad having only a determinable fee, on the abandonment the plaintiff was entitled. Lithgow v. Pearson, 135 Pac. 759 (Colo.).

Property can be taken by eminent domain proceedings for public purposes only. In re Tuthill, 163 N. Y. 133, 57 N. E. 303; Edgewood Railway Company's Appeal, 79 Pa. 257. Consequently merely such an interest in the property should be taken as is necessary to carry out the public purpose. Conklin v. Old Colony R. Co., 154 Mass. 155, 28 N. E. 143; Kansas Central Ry. Co. v. Allen, 22 Kan. 285. It has been held that the legislature should be the judge of what this interest is. Fairchild v. City of St. Paul, 46 Minn. 540, 49 N. W. 325. The majority of courts, however, construe eminent domain statutes as authorizing the condemnation only of an easement. Proprietors of Locks and Canals v. Nashua and Lowell R. R. Co., 104 Mass. 1; Kellogg v. Malin, 50 Mo. 496. Where the taker is the state or municipality, the fee simple is often held to pass. Haldeman v. Penn. Central R. R., 50 Pa. 425; Malone v. Toledo, 34 Oh. St. 541. The principal case using the machinery of a determinable fee to accomplish the desired limitation of the interest seems to have but little following. Matthieson & Hegeler Zinc Co. v. La Salle, 117 Ill. 411, 8 N. E. 81. The effect of the Statute of Quia Emptores was to destroy the tenure formerly existing between the grantor of a fee simple and his grantee and therefore theoretically determinable fees can no longer be created where Quia Emptores is in force, as is the case in nearly all American jurisdictions. See GRAY, RULE AGAINST PERPETUITIES, §§ 31-41 a, 774-788; 17 HARV. L. REV. 297-316. But if a statute can be construed to authorize the creation of such an interest in certain cases it may be argued that it has to that extent repealed Quia Emptores. If this is sound it would seem that eminent domain statutes of the type in the principal case have created an exception to the general rule in favor of landowners whose property is taken by condemnation proceedings. It must furthermore be admitted that apart from any statutory provisions there is a tendency in the United States to ignore the theoretical difficulties and allow determinable fees in all cases. First Universalist Society v. Boland, 155 Mass. 171, 29 N. E. 524.

INTERSTATE COMMERCE

CONTROL BY STATES - RAILROAD REGULATION - REGULATIONS BY STATE COMMISSION AS TO DEMURRAGE. - The Michigan Railroad Commission passed certain demurrage rules applicable to all traffic beginning or ending within the state. These rules allowed shippers from one to three days longer for loading and unloading goods than the rules of the Interstate Commerce Commission. The plaintiff filed a bill to restrain the state commission from enforcing its rules. Held, that the commission will be enjoined. Michigan Central R. Co. v. Michigan R. Commission, 20 Det. Leg. News 946 (Sup. Ct., Mich., Oct. 11, 1913).

The court is right in holding that the rules are unconstitutional so far as they apply to interstate traffic, as being a regulation of interstate commerce as such. Wabash, St. Louis & Pacific R. Co. v. Illinois, 118 U. S. 557. See

Minnesota Rate Cases, 230 U. S. 352, 415-416, 33 Sup. Ct. 729, 747. The court further says that the rules would be unconstitutional even if applied only to intrastate traffic. But it has been decided that a state can regulate the rates of interstate carriers as to intrastate traffic. Minnesota Rate Cases, supra. And it is submitted that the slight holding up of interstate cars that might result from the longer time allowed by the state demurrage rules would be a less material interference with interstate commerce than the regulation of intrastate rates. The court in the principal case curiously relies on one of the federal court decisions (Shepard v. Northern Pacific R. Co., 184 Fed. 765), which was reversed by the Supreme Court in the Minnesota Rate Cases. Assuming that the rules in question would be constitutional if applied solely to intrastate traffic, the question presents itself, whether the rules can be separated and upheld as to the constitutional part. This problem of splitting a statute seems to depend on whether it can reasonably be assumed that the legislature would have preferred the statute to be partially effective rather than entirely null. See The Employers' Liability Cases, 207 U. S. 463, 501. Whether we attribute to the Commission in the principal case a desire to bear down on the railroads or to benefit the people of the state, it can reasonably be presumed that a partially effective statute would have been preferred to one void in toto. If this is so, it would seem that the statement of the court as to intrastate traffic is not a mere dictum but a holding contra to the Minnesota Rate Cases. (For a discussion of those cases, see article, 27 HARV. L. REV. 1.) If the Wisconsin court's holding that the entire statute is unconstitutional is erroneous, nevertheless it is not open to review by the United States Supreme Court for the reason that there is no denial of any federal right claimed by the defeated litigant.

LIBEL AND SLANDER PLEADING AND PROOF — APPLICATION TO PLAINTIFF. The defendant, a physician, told of an experience in his practice with a young woman. He named no one and did not mean the plaintiff. The plaintiff, however, proved that people thought the story was about her. Held, that the defendant is entitled to a peremptory instruction. Newton v. Grubbs, 159 S. W. 994 (Ky.).

In the principal case no name was mentioned. It is, however, a sufficient description of the plaintiff if the hearers reasonably suppose that the plaintiff is referred to. Hird v. Wood, 38 Sol. J. 234; Le Fanu v. Malcolmson, 1 H. L. C. 636. But the court regards intention on the part of the defendant as necessary, interpreting too literally the requirement that the words be "published of and concerning the plaintiff." Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462. But this requirement, on logic and authority, only means that the jury must find that reasonable hearers under the circumstances would so understand the words. Intent to refer to the particular plaintiff is not necessary. Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392; Farley v. Evening Chronicle Pub. Co., 113 Mo. App. 216, 87 S. W. 565. Any doctrine of non-liability for negligent use of language refers to the action of deceit, not to defamation. Defamation is an action at peril. Peck v. Tribune Co., 214 U. S. 185, 29 Sup. Ct. 554. The law seems to have reached the stage where those who utter defamatory statements that may reasonably be applied to some innocent person must stand the consequences if that person is injured thereby.

LIBEL AND SLANDER REPETITION-LIABILITY FOR PRIVILEGED REPETITION. The defendant told the father of the plaintiff's fiancée that the plaintiff was already married. The father repeated this to his daughter, whereby the marriage was delayed until the charge was disproved. Held, that the defendant is liable for the repetition. Bordeaux v. Joles, 25 West. L. R. 894 (Sup. Ct. of Alberta).

The general rule is that there is no liability for the repetition by others of

defamation. Ward v. Weeks, 7 Bing. 211; Hastings v. Stetson, 126 Mass. 329. As a matter of law, the damages due to repetition are held to be too remote, though it is common experience that the repetition of slander is in fact a most natural and probable consequence of the publication of it. Hastings v. Stetson, supra. This proceeds upon the unsound and, in this country, discredited doctrine, that in questions of legal cause responsibility for an act does not extend beyond the last wrongdoer. See Elmer v. Fessenden, 151 Mass. 359, 362; see also 25 HARV. L. REV. 111-113, 119-122. But an exception to this non-liability exists where the repetition is privileged, the person hearing the charge being under a legal or moral obligation to repeat it. Derry v. Handley, 16 L. T. N. S. 263. The reason generally assigned is that the person repeating the charge is here not a wrongdoer, and that the originator is the last wrongdoer. See Elmer v. Fessenden, supra. A more practical reason is that unless the plaintiff were given recovery against the originator of the slander, he would be remediless. See Bassell v. Elmore, 48 N. Y. 561, 564. Even on the reasoning of the general rule this exception is justified, for the repetition is obviously a more natural consequence when the party repeating the charge is under a duty to do so, than in the ordinary case of repetition. Moreover, the exception is particularly desirable, since it limits an archaic rule of causation.

MARRIAGE - VALIDITY — COMMON-LAW MARRIAGE. The defendant married X. in New York. At the time of this marriage X. had a husband from whom she had been divorced in California, but which divorce was invalid in New York. The parties then moved to Illinois where the California divorce decree was valid, and there cohabited together. The defendant subsequently deserted X. and contracted another marriage. The defense to an indictment for bigamy was that the defendant and X. were not man and wife in Illinois. Held, that the defendant is not guilty of bigamy. People v. Shaw, 102 N. E. 1031 (Ill.).

For a discussion of the requisites of common-law marriage, see NOTES, p. 378.

MASTER AND SERVANT WORKMEN'S COMPENSATION ACT-INJURY OCCURRING "IN THE COURSE OF" AND ARISING "OUT OF" EMPLOYMENT. - The plaintiff, employed as a night watchman in the defendant's train yard, received permission to go for his clothes to a portion of the premises outside the part where his duties were performed. While returning to the part of the premises where he carried on his work he was injured by one of the defendant's engines. Held, that the plaintiff is entitled to compensation. Gonyea v. C. N. Ry. Co., Canadian, 26 West. L. R. 57 (Sup. Ct. Saskatchewan).

The Canadian statute follows the English act and requires both that the injury occur "in the course of" and that it arise "out of" the employment. STAT. 6 ED. VII, c. 58, § 1, subsec. (1). The same phrasing is found in seventeen of the twenty-two acts now adopted in the United States. An accident arises "out of" the employment when it results from a risk incidental to the employment, as distinguished from a risk common to all mankind. Pierce v. Provident, etc. Co., [1911] 1 K. B. 997; In re Employers' Liability, etc. Corp., 102 N. E. 697 (Mass.). The accident in question seems to fall within this definition. Whether it is within the course of the employment has been said to depend upon the geographical test of whether the workman is upon the premises where the work is being carried on, and whether his presence there is incidental to his work. See 25 HARV. L. REV. 401, 406. The court points out that in this case the plaintiff was clearly beyond the ambit of his employment. A broader definition and the one adopted by the court is whether the plaintiff was injured while doing what a man so employed might reasonably do within the time he is employed. Moore v. Manchester Liners, [1910] A. C. 498, 500; Bryant . Fissell, 86 Atl. 458 (N. J.). Either test has the desirable feature of being

purely external and easy to apply, thereby decreasing opportunity for litigation, one of the objects of compensation statutes. See 25 HARV. L. REV. 328, 332. Nevertheless, whether an injury arose "in the course of" the employment has been a frequent subject of dispute. As with the fellow-servant rule, the exact time of beginning and ending labor is not the determining factor. Riley v. Holland & Sons, [1911] 1 K. B. 1029; Sharp v. Johnson & Co., [1905] 2 K. B. 139. An engineer crossing tracks on a private errand was denied recovery because the employment was thereby broken. Reed v. Great W. Ry. Co., [1909] A. C. 31. Contra, Goodlet v. Caledonian Ry., 4 Fraser 986. Compensation was refused a station ticket collector who fell from a train upon which he had stepped for his own purposes. Smith v. Lancashire, etc. Ry., [1899] 1 Q. B. 141. But a workman leaving to get a drink recovered; Keenan v. Flemington Coal Co., 5 Fraser 164; as did a driver of a wagon hurt while picking up his pipe. M'Lauchlan v. Anderson, 48 Scot. L. R. 349. See also Blovelt v. Sawyer, [1904] I K. B. 271. A liberal construction of the test laid down seems in accordance with the spirit of the legislation, which is not the extension of liability for wrong doing, but to alleviate an undesirable social condition. Allowing compensation in the principal case is in harmony with that purpose.

MORTGAGES EQUITY OF REDEMPTION

- CLOGGING EQUITY OF REDEMPTION: VALIDITY OF AN OPTION COLLATERAL TO A FLOATING CHARGE. The appellant loaned money to the respondent, repayable on demand; but, if the interest were duly paid, no demand to be made before September 30, 1915. The debtor had the option to repay at any time after one month's notice. As security, a floating charge upon the debtor's undertaking (business) and property was created. By collateral agreement in the mortgage the debtor gave the lender an option to buy all of a certain by-product acquired up to August 20, 1915. Prior to November, 1913, the debtor paid up the loan. The lender sought to enjoin a breach of the collateral agreement. Held, that the respondent should have been enjoined. Kreglinger v. New Patagonia, etc. Co., 136 L. T. J. 110 (H. of L.).

The English law prior to the principal case enforced collateral agreements, not unconscionable, to continue during the existence of the security, but not after redemption. They were not invalid simply because "additional to the principal, costs, and interest secured." Biggs v. Hoddinott, [1898] 2 Ch. 307; Bunbury v. Walker, 1 Jac. & W. 225. Contra, JONES, MORTGAGES, 6 ed., § 1044. On the other hand, agreements, calculated to extend beyond redemption, were unenforceable after redemption. Noakes & Co., Ltd., v. Rice, [1902] A. C. 24; Bradley v. Carrett, [1903] A. C. 253 (overruling Stantley v. Wilde, [1899] 2 Ch. 474). An absolute day of cleavage was thus created. After the repayment of his loan the mortgagor should be "free from interference in his enjoyment again of full ownership." See 21 HARV. L. REV. 472-473. In the principal case the court admits that the rule against clogging equities applies to floating charges, but in some way, not indicated, distinguishes the cases cited above. Any distinction based upon the independent character of the agreement seems tenuous. Moreover, it allows creditors to overreach debtors by means of collateral agreements, substantially within the rule of Bradley v. Carrett, supra, but brought within the rule of the principal case by extending the law day of the mortgage beyond the date for terminating the collateral agreement, but with an option in the mortgagor to repay sooner. See 136 L. T. J. (Eng.) 137, 138. Such a result seems indefensible. For a discussion of the rule against clogging the equity, see 13 HARV. L. REV. 595; 15 HARV. L. REV. 661; 21 HARV. L. REV. 468-473.

NUISANCE WHAT CONSTITUTES A NUISANCE -INJURY TO PRIVATE PROPERTY BY RAILROAD. · The defendant's railroad, though operated without

negligence, caused incidental annoyance and damage to the adjacent property of the plaintiff. Held, that such operation constitutes neither a nuisance, nor an appropriation of property without just compensation. Roman Catholic Church of St. Anthony of Padua v. Pennsylvania R. Co., 207 Fed. 897 (C. C. A.). The cases have held that incidental annoyance to property owners, such as noise, jarring, smoke, and cinders, must, within certain limits, be suffered in the interests of the general public. Carroll v. Wisconsin Central Co., 40 Minn. 168; Beseman v. Pennsylvania R. Co., 50 N. J. L. 235, 13 Atl. 164. But this justification obviously fails where the act complained of is without legislative sanction. Jones v. Festiniog Ry. Co., L. R. 3 Q. B. 733; Pennsylvania R. Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. 432. This defense is likewise unavailing where the road has been run negligently, for the interests of the public at large do not demand that a community be subjected to unnecessary inconvenience. Bunting v. Pennsylvania R. Co., 189 Fed. 551. The annoyance in the principal case not being within these exceptions, there arises the further question whether requiring the property owners to undergo damage to their land is taking without just compensation contrary to the federal Constitution. The construction of an elevated railroad so as to interfere with a property owner's enjoyment of light and air from a public street has been held to be such a taking. Story v. New York Elevated R. Co., 90 N. Y. 122; Aldis v. Union Elevated R. Co., 203 Ill. 567, 68 N. E. 95; see 17 HARV. L. REV. 201. No such question, however, is involved in the principal case, since the railroad was running on its own property, and there is no easement of light and air as to private land in this country. Rogers v. Sawin, 10 Gray (Mass.) 376; Parker v. Foote, 19 Wend. (N. Y.) 309. Nor can causing consequential damage, as here, be considered a taking. Smith v. Corporation of Washington, 20 How. (U. S.) 135. See Heiss v. Milwaukee & Lake Winnebago R. Co., 69 Wis. 555, 558, 34 N. W. 916, 917; Garrett v. Lake Roland Elevated R. Co., 79 Md. 277, 280, 29 Atl. 830, 831. But see 19 HARV. L. REV. 127. Again, such annoyance as that in the principal case is not inconsistent with any right of the plaintiff, who must be regarded as owning subject to such users and burdens of the public as the courts may determine are reasonably necessary.

OFFER AND ACCEPTANCE REWARD UNILATERAL CONTRACTS. - A reward was offered by the defendant for the arrest of a criminal. A police officer made the arrest, but the prisoner broke away from him and in the pursuit surrendered to the plaintiff. The defendant voluntarily paid the reward to the officer. The plaintiff now sues, claiming that although not acting in concert with the officer he is entitled to share in the reward as having aided in the arrest. Held, that the plaintiff is not entitled to any part of the reward. Stair v. Heska Amone Congregation, 159 S. W. 840 (Tenn.).

This case is noteworthy as a well-reasoned decision on a point on which satisfactory authority is conspicuously missing. The court gives an admirable statement of the law where the question is whether a reward should be divided between several persons: "... his right to so share in the reward depends upon there having been concert of action between him and Policeman Johnson when the endeavor was entered upon. Where there is no such concert as to joint efforts, he alone is entitled to the reward who first substantially complies with the terms of the offer." See a discussion of the same question in 27 HARV. L. REV. 185.

PLEDGES - EFFECT OF AGREEMENT TO PLEDGE FUTURE PROPERTY. - A farm lease contained the provision that all crops grown on the land should remain in the possession of the lessor until the rent payments had been satisfied. The lessee entered and raised a crop of small grain, which he sold and delivered to the defendant with notice of the stipulation in the lease. The rent not having