tion on the vendor in what were apparently forced sales,24 an assignment for the benefit of creditors would seem clearly to raise no implication that the vendor would not later hold himself free to exercise full rights of competition. So the recent case seems correct.

APPLICATION OF THE RULE IN ARCHER'S CASE IN AMERICA. At common law under the English system of primogeniture there could be only one heir existing at any given time.1 Consequently, when the plural word heirs was used in conveyancing, it could only refer to a chain of inheritable succession from a progenitor and could not mean a coexisting class of individuals answering to the description of heirs. Heirs came to be the technical word used to limit an estate of inheritance which would follow through the entire structure of descent from the progenitor. Hence, when the situation, illustrated in Shelley's Case,3 arose, where in the same instrument a remainder was limited to the heirs or heirs of the body of the donee or grantee of the prior life estate, it was not surprising that the courts, clinging to the technical meaning of the word heirs, found an attempt to pass the remainder as if an inheritance from the holder of the life estate. The words were words of limitation, or outline of a structure of descent from the progenitor named, the form alone that of purchase. The remainder was, therefore, read as a fee or fee tail in the ancestor, into which the life estate might merge.5 Since then the English cases have consistently given effect to the technical meaning of the plural word heirs or heirs of the body by refusing to consider context inconsistent with the technical legal import.6

When the singular word heir was used, however, the situation has been different. It could denote a line of descent, if used collectively, or a particular individual, if used singly. With no restrictive context it was

24 Jennings v. Jennings, [1898] 1 Ch. 378; in re David, supra; Von Bremen v. MacMonnies, supra.

1 See FEARNE, C. R., 10 ed., pp. 181-185; CHALLis, Real ProperTY, 3 ed., p. 221; 14 L. QUART. REV. 98; Burnett v. Coby, 1 Barn. 367; Doe v. Harvey, B. & C. 610; Jesson v. Wright, 2 Bligh 1, at p. 53.

2 See 1 Coke, 104 b; 29 L. R. A. N. s. pp. 1039-1065. Cf. CHALLIS, REAL PROPERTY, 238, 242, 166; and note an exceptional case, Mandeville's Case, Coke Litt. 266.

3 1 Coke, 93 b; reprinted in CHALLIS, REAL PROPERTY, 154; 29 L. R. A. N. s. 968. 4 Cf. 29 L. R. A. N. S. 1006-1007.

See I TIFFANY, REAL PROPERTY, § 130; 1 HAYES, CONVEYANCES, 5 ed., 542-546; Van Grutten v. Foxwell, [1897] A. C. 658, 668.

• Wright v. Pierson, 1 Eden 119; Measure v. Gee, 5 B. & Ald. 910; Jesson v. Wright, 2 Bligh 1; Doe v. Harvey, 4 B. & C. 610; Mills v. Seward, 1 J. & H. 733; Jordan v. Adams, 9 C. B. N. s. 483; Van Grutten v. Foxwell, [1897] A. C. 658. Decisions seemingly contra have invariably been in cases of wills, where the word heirs has clearly been used loosely in a non-technical sense as the equivalent of children and the like. See Doe v. Lanning, 2 Burr. 1100; Crump v. Wooley, 7 Taunt. 362; Doe v. Goff, 11 East 668; Bull v. Comberbach, 25 Beav. 540; Right v. Creber, 5 B. & C. 866. Cf. Measure v. Gee, 5 B. & Ald. 910. In Doe v. Goff, supra, Lord Ellenborough said at pp. 671-672: "And the words which follow put it past all doubt that the testator used the words 'heirs of the body' not as words of limitation but as equivalent to children or issue of her body.

.

See I FEARNE, C. R. 186-197; I TIFFANY,

REAL PROPERTY, § 132; 10 HARV. L. REV. 66.

7 See 1 FEARNE, C. R. 150, 178; CHALLIS, REAL PROPERTY, 230; 29 L. R. A. N. S.

1017.

interpreted collectively and Shelley's rule was applied. When used with words clearly inconsistent with the collective sense, it was construed, as in Archer's Case, to designate an individual purchaser.

In America primogeniture has been generally abolished.10 More than one heir therefore may be in existence at any one time. The plural word heirs is not only descriptive of a line of descent, as in England, but may also designate a number of individuals who take as tenants in common. On this ground a recent federal case from Illinois presents the proposition that in America the heirs of the body ought to have the same possibilities of construction as the singular form in England." There a deed read, in substance, to Sarah for life and at her death "to the heirs of the body of Sarah, their heirs and assigns." The court followed Archer's Case, and thus construed the deed to give a life estate to Sarah and a contingent fee to the class as tenants in common who should come within the description "heirs of the body" at the death of Sarah.12 Etna Life Ins. Co. v. Hoppin (C. C. A., 7th Circ. Not yet reported).

The proposition is sound unless to-day the word heirs (plural), because of the peculiar effect given the plural word in England, has come to imply a stronger idea of inheritance from a progenitor than the singular heir. Many courts in America have applied the rule in Shelley's Case to situations very similar to that disclosed in the recent decision.13 On the other hand, many courts have refused to apply the rule, but they have usually based their decisions on the erroneous ground that the intention of the testator to give the first taker only a life estate made the rule inapplicable.14 In one former case, however, the difference, dis

8 Richards v. Bergavenny, 2 Vern. 324. See the discussion of the rule in Evans ». Evans, [1892] 2 Ch. 173. Cf. Fuller v. Chamier, L. R. 2 Eq. 682.

Archer's Case, 1 Coke, 66 b, discussed in 1 FEARNE, C. R., 10 ed., 150, 193. In this case the devise read to Robert for life and afterwards to the next heir male of Robert and the heirs male of the body of such next heir male. The court considered that the reference to heir, in the singular, with the superadded words of limitation, to be a specific description of the person who should be "next heir male" as to donee of a fee tail by purchase. So the rule in Shelley's Case did not apply. Willis v. Hiscox, 4 Myl. & Cr. 197; Chamberlayne v. Chamberlayne, 6 El. & Bl. 625; Greaves v. Simpson, Io L. T. 448. Archer's Case is distinguished in Minshull v. Minshull, 1 Atk. 410, 413; Sayer. Masterman, 1 Ambl. 344, 346; Featherston v. Featherston, 3 Cl. & F. 67; Johnson v. Rutherford, 3 L. T. 649, 650. Cf. White v. Collins, Comyn 289.

In like manner non-technical words such as "issue" or person or persons who shall be heirs at the death of the life tenant" have been construed as an individual person or class. Lodington v. Kime, 1 Salk. 224 (issue); Bowles' Case, 11 Co. 79 b (issue); Bannester v. Lang, 17 L. T. N. S. 137 (issue); Evans v. Evans, [1892] 2 Ch. 173 (persons). 10 ILL. STATUTES, 4202. See Meadowcroft v. County, 181 Ill. 504; I STIMSON, AM. ST. LAW, 3101, 3107, 3113, 3121, 3134.

11 See also in lower court, 249 Ill. 406.

12 The same result could be reached by applying the rule in Shelley's Case, obtaining a fee tail, and then applying the Statute of Entails in Illinois but for the settled construction that the Statute of Entails gives a vested remainder in the children of the lite tenant when born. See Winchell v. Winchell, 259 Ill. 471, 102 N. E. 823; Moore v. Riddell, 259 Ill. 36, 102 N. E. 257; ILLINOIS CONVEYANCING ACT, ch. 30, § 6. See 6 ILL. L. REV. 270; 8 ILL. L. REV. 313; and cf. with In re Kelso, 69 Vt. 272; Horsley v. Hilburn, 44 Ark. 458.

13 Baughman v. Baughman, 2 Yeates (Pa.) 410; Hileman v. Bruslaugh, 13 Pa. 251; Hardage v. Stroope, 58 Ark. 303, 24 S. W. 490; Brown v. Lyon, 6 N. Y. 419; Darmer v. Trescott, 5 Rich. Eq. (s. c.) 356.

14 De Vaughn v. Hutchinson, 165 U. S. 566; Earnhart v. Earnhart, 127 Ind. 397;

cussed above, between the English and the American law of inheritance has been used as a ground for not applying the rule in Shelley's Case.15 Such construction, whether advisable or not, is at least possible in America, and certainly affords a basis for distinguishing and reconciling the results of the English and American cases.

As a general proposition, technical meanings for formulas of conveyancing are desirable in order to secure stability of titles.16 Since the main reasons urged for the adoption of the proposition of the case are simply arguments for abolishing the rule in Shelley's Case altogether," a better result would be gained by legislation than by forced construction by way of exception.

CONSTITUTIONALITY OF THE FEDERAL YACHT TAX. The Supreme Court has declared the power to tax to rest upon the reciprocal duties of protection and support between the state and the citizen.1 When the constitutionality of a certain tax is questioned, the basic inquiry becomes whether the taxing power is rendering a quid of protection for the quo which it receives, in the shape of the tax, from the taxed object.2 Obviously a state may tax all the property within its borders.3 A like power extends to all persons domiciled therein. While a poll tax is the simplest method of personal taxation, taxes are more often imposed in proportion to wealth and power.

8

Is it due process of law to include property outside of a state or of the United States in estimating this wealth and power? Even in our common-law conception of territorial sovereignty, it may be said that the benefits conferred by the state government do not stop at the borders. The law of the state of domicil determines legitimacy, the devolution of property at death,' the right to act as a corporation, all of which are effective beyond the state line. State law confers property rights given effect to everywhere. It must be recognized, however, that in the end the benefit depends upon the foreign state or federal governWestcott v. Meeker, 144 Ia. 311, 122 N. W. 964, criticized in 23 HARV. L. REV. 313; State ex rel. Farley v. Welsh, 162 S. W. (Kan.) 637; Hamilton v. Wentworth, 58 Me. 101; Carnedy v. Haskins, 54 Mass. 389; Peer v. Hennion, 77 N. J. L. 693; Lemacks v. Glover, 1 Rich. Eq. (S. C.) 141. It is to be noted that these are all cases of wills where greater scope in construction is usually allowed. I TIFFANY, REAL PROPERTY, § 132; 29 L. R. A. N. S. 1038.

15 Tucker v. Adams, 14 Ga. 548; 28 L. QUART. REV. 148.

16 See I FEARNE, C. R. 201; 12 HARV. L. REV. 64.

17 A list of the states which have abolished the rule in Shelley's Case will be found in I STIMSON, Am. St. Law, § 1406.

1 Union Transit Co. v. Ky., 199 U. S. 194, 202, 204; State Tax on Foreign-Held Bonds, 15 Wall. [U. S.] 300, 302. "The theory of all taxation is that taxes are imposed as a compensation for something received by the taxpayer." Dalrymple v. Milwaukee, 53 Wis. 178, 185.

2 GRAY, CONSTITUTIONAL LIMITATIONS ON THE TAXING POWER, § 168 a.

3 GRAY, CONSTITUTIONAL LIMITATIONS ON THE TAXING POWER, §§ 72, 73. 4 JUDSON ON TAXATION, §§ 414, 415.

5 COOLEY ON TAXATION, 3 ed., 28.

6 Scott v. Key, 11 La. Ann. 232.

7 Lawrence v. Kitteridge, 21 Conn. 576.

8 Bank of Augusta v. Earle, 13 Pet. (U. S.) 519.

Green v. Van Buskirk, 7 Wall. (U. S.) 139.

ment because it is according to the will of such state as expressed by its law that the right is recognized, or because the recognition is made obligatory by force of the Constitution. Upon state citizenship depends the right to sue in the federal courts,10 and only to state citizens does the privileges and immunities clause of the Constitution apply," but here also it may be said that the right itself is secured by the federal power. At any rate, these benefits have not been considered sufficient to permit a state to include property beyond the jurisdiction in assessing a personal tax. Foreign realty, or any interest therein, must be excluded to comply with due process of law.12 Tangible personalty outside the state, it is said, receives no protection and cannot be included.13 The same rule, on principle, would seem applicable to a tangible chose in action, which is taxable at its situs.14 Tangible personalty which has acquired no taxable situs elsewhere 15 and choses in action 16 may be included in a tax upon the owner at his domicil. This exception is justified by practical necessity and old custom; and it is only here that the misleading maxim mobilia sequuntur personam may be argued to have some application.

In deciding the constitutionality of the federal yacht tax, however, the Supreme Court held that the due process clause of the Fifth Amendment is not violated when tangible personalty with a foreign situs, in this case a yacht, is made the basis of a tax by the federal government upon a domiciled citizen. United States v. Bennett, 34 Sup. Ct. 433. The court, while recognizing the restrictions upon the state's powers, held these not applicable to the federal government. Its benefits, it is said, extend beyond the territorial confines of the nation. It is true that the federal government procures recognition and protection for its citizens and their property abroad by treaties, but it may be argued that so also by agreement with the other states through the Constitution, each state has really procured similar benefits for its citizens in the several states. The federal government, however, spends huge sums on army and navy, ambassadors and consuls for the enforcement of these international rights, while on the state there is no such burden, since interstate enforcement of rights is delegated to the federal power, which again pays the expense. Furthermore, in the case of a yacht owned by an American citizen although in foreign waters, the admiralty jurisdiction of the federal government would apply. These differences would seem to justify the larger scope of federal taxation. If this analysis is sound, the economic undesirability of the result taxing the same amount of wealth twice is for the consideration of the legislature, not the court.17

10 CONSTITUTION OF THE UNITED STATES, Art. III, § 2.

11 CONSTITUTION OF THE UNITED STATES, Art. IV, § 2.

12 Louisville Ferry Co. v. Ky., 188 U. S. 385. GRAY, CONSTITUTIONAL LIMITATIONS ON THE TAXING POWER, § 168 a.

13 Union Transit Co. v. Ky. 199 U. S. 194. This practice was common before this decision, and, while questioned as a matter of policy, its legality did not seem to be doubted. See BEALE, FOREIGN CORPORATIONS, § 483, JUDSON ON TAXATION, § 420, COOLEY ON TAXATION, 3 ed., 86. See also 19 HARV. L. REV. 206.

14 New Orleans v. Stempel, 175 U. S. 309.

15 New York Central R. Co. v. Miller, 202 U. S. 584; Southern Pac. Co. v. Ky., 222 U. S. 63.

16 Commonwealth v. Northwestern Ins. Co., 107 S. W. 233 (Ky.).

17 COOLEY ON TAXATION, 3 ed., 9.

RECENT CASES.

ABATEMENT AND REVIVAL SURVIVAL OF ACTION

LIBEL.

TESTAMENTARY

- A testator, leaving a small bequest to his niece, described her in the will as the illegitimate child of his brother. Held, that the niece may recover against the estate of the deceased in an action of libel. Harris v. Nashville Trust Co., 162 S. W. 584 (Tenn.).

For discussion of the question thus raised, see page 666 of this issue.

ACCORD AND SATISFACTION DISPUTED CLAIMS RETENTION OF CHECK TENDERED AS PAYMENT IN FULL.-The defendant disputed one item in the plaintiff's claim for goods manufactured, but admitted the others, and sent a check for the admitted amount less two per cent. The check was stamped "This pays in full." The plaintiff cashed the check and sues for the balance of the account. Held, that the defendant is liable. Dunn v. Lippard-Stewart Motor Car Co., 144 N. Y. Supp. 349 (Sup. Ct.).

The plaintiff sold and delivered to the defendant goods to the amount of $80.03. The defendant claimed the right to return part of these and sent a check for the price of the rest, stating that it was in full settlement of the account. The plaintiff refused to take the goods back, but cashed the check and sued for the balance of his claim. Held, that the defendant is liable. Whittaker Chain Tread Co. v. Standard Auto Supply Co., 103 N. E. 695 (Mass.).

The plaintiffs leased an engine to the defendant. The defendant claimed a deduction from the rent because the engine was not in repair when leased, and sent a check for less than the amount of the rent in full settlement. The plaintiffs cashed the check and sued for the balance of his claim. Held, that the defendant is not liable. Neubacher v. Perry, 103 N. E. 805. (Ind. App. Ct.). Where a check for less than the amount of a disputed or unliquidated claim is given on condition that it be accepted in full satisfaction, if the creditor cashes it, although protesting that it is in part payment only, the claim will be discharged, and the creditor will not be permitted to say that he has used the check in violation of the condition upon which it was given. Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715; Sparks v. Spaulding Mfg. Co., 139 N. W. (Ia.) 1083. Contra, Thayer v. Harbican, 70 Wash. 278, 126 Pac. 625; Day v. McLea, 22 Q. B. D. 610. See Hirachand Punamchand v. Temple, [1911] 2 K. B. 330, 340, 342. The New York and Massachusetts cases represent an attempt to get away from this strict rule, which has been criticized as working a hardship on creditors. See 18 HARV. L. REV. 617. The theory of the courts is, that where part of a claim is admitted, payment only of that which is admitted can furnish no consideration for the discharge of the remainder. Siegele v. Des Moines Mutual Hail Insurance Association, 28 S. D. 142, 132 N. W. 697; Thayer v. Harbican, supra. But if the claim is entire, the debtor is not under two obligations, one certain and one uncertain, but under a single uncertain obligation. Therefore, the distinction taken by the courts seems unsound. Treat v. Price, 47 Neb. 875, 66 N. W. 834; Neely v. Thompson, 68 Kan. 193, 75 Pac. 117; contra, Weidner v. Standard Life, etc. Co., 130 Wis. 10, 110 N. W. 246. To protect the creditor, however, the general rule should only apply where there is a bonâ fide dispute and where the tender is made upon a clear and unequivocal condition. Canadian Fish Co. v. McShane, 80 Neb. 551, 114 N. W. 594; N. B. Borden & Co. v. Vinegar Bend Lumber Co., 62 So. 245 (Ala. Ct. App.).

BANKS AND BANKING - DEPOSITS RIGHT TO APPLY DEPOSIT OF CONVERTED FUNDS TO ANTECEDENT DEBT OF DEPOSITOR.-W. was accustomed to ship hogs to his agent to sell, with instructions to deposit the proceeds with