limitation must have been good or bad at the date of the deed, the subsequent events would not affect it. So a testator might devise land to a son for life, with remainder to his son's children in fee, and with power for the son to appoint a life estate to his widow in precedence of the remainder to the children. If the son were young at the testator's death, he would very likely marry a wife unborn at that time, and, if he exercised the power in her favor by appointing a life estate to her, the remainder to his children in fee would be rendered invalid. Lord Coke would probably have managed this better with his rule regarding common possibilities and double possibilities. He would have said that, the remainder after the life estate of John Foran's widow, being limited, not to her children, but to his, was good, because it was only a common possibility that he might marry somebody and have issue surviving him, which would not have involved inquiring whether the widow was the mother or when she was born. He would not have been likely to think that this remainder was affected by the triple possibility of his marrying an unborn wife, and having issue by that wife, and leaving both the wife and such issue surviving him. Perhaps a similar course might have been followed with the modern form of the rule, on the ground that the case was not within the reason of the rule, even if it might possibly be within its words. The case has nothing in common with In re Frost,5 which was referred to in the judgment, because there the remainder was limited, not to issue living at the death of the first life tenant, but to issue living at the death of the survivor of the husband and wife, or, in default of such issue, to other persons then to be ascertained, and there was no issue. Kay, J., thought that involved the double possibility of a marriage with an unborn person and of the contingency to take effect upon the death of that person. The rule in Whitby v. Mitchell seems inadequate to this case, although the remainder was clearly void according to the rule against perpetuities, if that rule was applicable, as Kay, J., also held that it was. On the other hand, the limitation in Park's Settlement was clearly valid according to the rule against perpetuities, and it vested at the same time as the widow's life estate and independently of it.

RECENT CASES.

BILLS AND NOTES - DEFENSES - WAIVER OF DEFENSE BY EXECUTION OF RENEWAL NOTE. - The defendant with knowledge of a right of recoupment for defective performance of a contract, gave a renewal note for the full amount of the original note. Any cross-action by the defendant was barred by the Statute of Limitations. Held, that the defendant cannot recoup his damages in an action on the renewal note. Stewart v. Simon, 163 S. W. 1135 (Ark.). The proposition that a renewal note is subject to the same defenses as the original is not absolutely true. Where the original was tainted with illegality, the renewal note is no better. Chapman v. Black, 2 B. & A. 588; Wynne v.

4 2 Rep. 51 b (1593); 1 Rep. 156 a (1598).

5 43 Ch. D. 246, 253 (1890).

Callander, I Russ. 293. Cf. Flight v. Reed, 1 H. & C. 703. The same is true when the defense is lack of consideration. Commonwealth Ins. Co. v. Whitney, I Metc. (Mass.) 21; First National Bank v. Black, 108 Ga. 538, 34 S. E. 143. As between the immediate parties to the instrument, these are absolute defenses. Other defenses, however, may be waived. Thus giving a renewal note with knowledge of the defense of fraud operates as a waiver of that defense. Edison General Electric Co. v. Blount, 96 Ga. 272, 23 S. E. 306; White v. Sutherland, 64 Ill. 181. The authorities also generally recognize that the execution of a renewal note, with knowledge of the defense, will operate as a waiver of the defendant's right to refuse full performance on his side of the contract because of the defective performance rendered by the other party. American Car Co. v. Atlanta City St. Ry. Co., 100 Ga. 254, 28 S. E. 40; Archer v. Bamford, 3 Stark. 175; cf. Kirkpatrick v. Muirhead, 16 Pa. 117. The right of recoupment is a defense of this nature; and a waiver of it is therefore effective. See WILLISTON, SALES, § 605. This waiver alone, however, should not deprive the defendant of his affirmative cross-action or counterclaim for breach of contract. See WILLISTON, SALES, § 485. But the fact that the defense of recoupment has been waived becomes very material, when, as in the principal case, the Statute of Limitations has run against the affirmative right.

CARRIERS - BILLS OF LADING — LIABILITY ON BILL AFTER DELIVERY OF GOODS. A short shipment was made under an order bill of lading. The plaintiff bank discounted a draft with the bill attached, although the bill was then three months old and had already been deposited with the bank on four successive occasions as security for drafts subsequently dishonored and taken up by the shipper. Prior to the last discount, the consignee had secured the goods from the carrier without surrendering the bill, and had paid the shipper. The bank sues the carrier. Held, that it cannot recover. Fourth National Bank v. Nashville, C. & St. L. Ry. Co., 161 S. W. 1144 (Tenn.). A carrier which issues an order bill of lading and then delivers the goods to one not the holder of the bill, is liable as a converter. Boatman's Saving Bank v. Western & A. R. Co., 81 Ga. 221, 7 S. E. 125. Even if delivery is to the holder, failure to take up an order bill makes the carrier liable to a subsequent innocent purchaser. Ratzer v. Burlington C. R. & N. Ry. Co., 64 Minn. 245, 66 N. W. 988; Walters v. Western & A. R. Co., 56 Fed. 369. The reason for this liability is that the carrier has represented by leaving the bill outstanding that it is still backed by goods and should therefore reimburse an innocent purchaser of it for value. In the principal case in view of the short shipment, the long time the bill was outstanding and the dishonored drafts, the court seems right in saying there could have been no honest reliance on the carrier's representation. Estoppel therefore could not be invoked and the plaintiff could only rely on the consignor's right which, as he had received payment, amounted to nothing at the time of discount.

CARRIERS - DISCRIMINATION AND OVERCHARGE: WHETHER EXTENSION OF CREDIT TO SOME BUT NOT ALL SHIPPERS CONSTITUTES DISCRIMINATION. The defendant railway company, departing from its regular course of business, did not require a regular monthly settlement from a coal company for the carriage of coal, but accepted notes. The railway renewed the notes and finally accepted in exchange three year debenture bonds. The railway was indicted: (1) for violating Sec. 6 of the Interstate Commerce Act in accepting a different compensation from the published rate; (2) for violating Sec. 2 of the Elkins Act which prohibits discrimination. Held, that the railway was properly convicted, at least as to the second count of the indictment. Hocking Valley v. United States, 210 Fed. 735 (C. C. A., 6th Circ.).

The case seems clearly right on the facts, since here the shipper was getting a

substantial advantage over other shippers. (See 26 HARV. L. REV. 82 for discussion of the same case in the lower court.) The case goes further, however, and contains language casting doubt upon the hitherto well-established doctrine that the mere fact that credit is extended to some shippers and refused others is not sufficient to constitute a discrimination. Little Rock & Memphis R. Co. v. St. Louis & S. W. R. Co., 63 Fed. 775; Gamble-Robinson Com. Co. v. Chicago & N. W. R. Co., 168 Fed. 161. See cases collected in notes, 21 L. R. A. N. S. 982, and 16 Anno. Cas. 613, 621. These cases were distinguished by the principal case on the ground that they were decided under the Interstate Commerce Act forbidding "unjust and unreasonable" discrimination, whereas this case arose under the Elkins Act from which the qualifying words were omitted. In order to support this case it would seem unnecessary to distinguish those cases, for here the advantage given the particular shipper was clearly unjust and unreasonable, since the carrier is practically furnishing capital to the favored shipper. Moreover it is submitted that even if the earlier cases had arisen under the Elkins Act, the result would have been the same, since the legal content of the term "discrimination" must include the elements of injustice or unreasonableness. On the one hand, it would create unnecessary inconvenience to shippers always to require payment in advance. On the other hand, it would be unfair and probably unconstitutional to require a railroad to give credit to all. Attorney General v. Old Colony R., 160 Mass. 62, 35 N. E. 252. This latter objection, however, might perhaps be answered by requiring credit to be extended to all shippers furnishing a satisfactory bond. But this too affords ground for some discrimination. Therefore it is submitted that in the matter of extending credit, considerable freedom should be permitted the railroad and that only where, as in the principal case, there is a clear abuse, should a discrimination be declared.

CARRIERS LIMITATION OF LIABILITY EFFECT OF FILING THE TERMS OF LIMITATION WITH THE INTERSTATE COMMERCE COMMISSION.- The plaintiff at the start of an interstate journey checked her baggage without_declaring its value. The defendant railroad had filed with the Interstate Commerce Commission a statement that its liability on baggage would be limited to one hundred dollars unless a greater value was declared by the shipper and excess charges paid. The trial judge found that the plaintiff had no notice of this regulation, and no inquiry was made by the railroad as to the value of the baggage. Held, that the plaintiff could recover only the limited amount. Boston & Maine Railroad v. Hooker, 34 Sup. Ct. 526.

For a discussion of the principles involved in this case see Page 737 of this issue of the REVIEW.

CARRIERS-PASSENGERS: EJECTION OF PASSENGERS FAILURE ΤΟ PRODUCE TICKET CAUSED BY FAULT OF CARRIER.- A passenger on the defendant railroad, gave up his entire ticket to a uniformed employee on the first half of the journey, and was ejected by the conductor in charge of the second half for his consequent failure to produce the coupon when demanded. The passenger now sues for damages for the ejection. Held, that he can recover if his ticket was surrendered to an authorized agent, but cannot if the agent lacked authority to receive tickets. Galveston, H. & S. A. Ry. Co. v. Short, 163 S. W. 601 (Tex. Civ. App.).

If a passenger has lost his ticket he can be expelled. Downs v. New York &N. H. R. Co., 36 Conn. 287. But if the coupon for the last half of the journey has been collected prematurely, there is a conflict of authority as to whether the passenger can be ejected by the conductor in charge during the final stage. Some states hold that he cannot be ejected. Philadelphia, W. & B. R. Co. v. Rice, 64 Md. 63, 21 Atl. 97; Kansas City, M. & B. R. Co. v. Riley, 68 Miss.

765, 9 So. 443. Others hold that he can, and this seems the better view. Townsend v. New York Central & H. R. R. Co., 56 N. Y. 295; Skelton v. Lake Shore &M. S. Ry. Co., 29 Oh. St. 214. For the passenger is protected by his remedy for the loss of the ticket and the carrier's regulation requiring the production of tickets is justified in view of the impracticability of the conductor's passing upon the validity of excuses. Bradshaw v. South Boston R. Co., 135 Mass. 407. The principal case suggests a modification of the first view based on a Texas statute requiring ticket collectors to wear a badge. It is arguable that delivery to an employee without a distinctive badge is negligence, but it would seem that in the ordinary course of travel a passenger would be justified in giving up his ticket to one in the company's uniform without looking for a badge or ascertaining if the badge were a proper one. The case would appear to set an unwarranted limitation on an undesirable rule.

CONFLICT OF LAWS - REMEDIES: RIGHT OF ACTION - REDRESS FOR TORT COMMITTED UNDER STATUTE OF FOREIGN STATE WHICH FORBADE RECOVERY OUTSIDE THE STATE. - An Alabama statute gave a right of action to workmen injured by reason of any defect of the premises where they were employed. ALA. CODE, § 3190. Section 6115 of the Code provided that actions for such injuries must be brought in a court of Alabama and not elsewhere. The plaintiff, having been injured, recovered against the defendant in Georgia. Held, that the recovery in Georgia was not in violation of the due faith and credit clause of the Constitution. Tennessee Coal, I. & R. R. Co. v. George, U. S. Sup. Ct., April 13, 1914.

As a general rule, an action for personal injuries is maintainable whenever the court has jurisdiction of the parties. Dennick v. Railroad Co., 103 U. S. II. See 26 HARV. L. REV. 283, 290. In creating a new right, however, the jurisdiction creating the right may place a special limitation upon it. This limitation affects the right no matter where sued upon. Pollard v. Bailey, 20 Wall. (U. S.) 520; Fourth Nat. Bank v. Francklyn, 120 U. S. 747. See 18 HARV. L. REV. 220, 221. The creator of the right may limit it even after it has arisen. Davis v. Mills, 194 U. S. 451. So in the principal case, Alabama might have made bringing a suit within the state a condition precedent to the existence of any right at all. That this was true of a statute of another state was the view of the minority of the court in Atchison, T. & S. F. Ry. Co. v. Sowers, 213 U. S. 55, 71; See criticism of case in 22 HARV. L. REV. 535. But the Alabama statute would seem not to be capable of such an interpretation. Hence the requirement for bringing suit was not a condition precedent to the right, but only a prohibition which the dissenting judges in the case cited admitted could be disregarded. The court's result seems clearly right.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW-STATE REGULATION of Sale of StoCKS, BONDS AND OTHER SECURITIES.-A statute provided that foreign and domestic investment companies file full data regarding all issues of stocks, bonds and other securities with a Commission, that the Commission was authorized to prohibit a sale if it should find that the sale would in all probability result in loss to the purchaser; and, further, that there should be no sale for thirty days after the data was filed with the Commission. Held, that the statute is unconstitutional. Alabama & New Orleans Transportation Co. v. Doyle 210 Fed. 173.

For a discussion of the principles involved see NOTES, P. 741.

DELEGATION OF

CONSTITUTIONAL LAW POWERS OF LEGISLATURE: POWERS - VALIDITY OF STATE-WIDE REFERENDUM.- The legislature passed a statute that was to become operative as a law if the majority of the people

voted for it at the next state election. Held, that such a statute is valid. Hudspeth v. Swayze, 89 Atl. 780 (N. J.).

The doctrine that legislatures cannot delegate their powers is well settled. Territory v. Stewart, 1 Wash. 98, 23 Pac. 405; Slinger v. Henneman, 38 Wis. 504. Decisions are in conflict, however, as to what constitutes a prohibited delegation. For historical reasons, it would seem, certain delegations to municipal corporations are valid. State v. Tryon, 39 Conn. 183. See Paul v. Gloucester, 50 N. J. L. 585, 603, 15 Atl. 272, 280. Local option laws have also generally been sustained. Locke's Appeal, 72 Pa. 491; State v. Court of Common Pleas of Morris, 36 N. J. L. 72. Contra, Lammert v. Lidwell, 62 Mo. 188. But the slight weight of authority is against the validity of state-wide referendum. Barto v. Himrod, 8 N. Y. 483; Opinions of the Justices, 160 Mass. 586. Contra, Smith v. City of Janesville, 26 Wis. 291. The courts in some of the above decisions have laid stress upon the diversity between the statutes, distinguishing between acts that purport to let a vote decide whether a law shall exist, and those that make its operation contingent upon the vote. But it is submitted that this is only a matter of form and does not warrant different results. Now statutes that are to become effective upon a contingency are clearly valid. Pratt v. Allen, 13 Conn. 119; Home Ins. Co. v. Swigert, 104 Ill. 653. The statute in the principal case seems clearly contingent, but it might be argued that the contingency was objectionable because it involved a delegation of legislative discretion if not of actual law-making power. But the statute is very analogous to local option laws, though such laws may be regarded as somewhat exceptional because the result of the vote, as an indication of the possibility of enforcing the law, is really a factor in determining the expediency of their enactment. Furthermore the delegation of some discretion is not unusual. Buttfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367. Since in the principal case the legislature retained its power to give life to the law, and merely provided that the contingency making the law operative was the decision of the sovereign people instead of its own, the decision seems correct in holding this contingency unobjectionable. Smith v. City of Janesville, supra; State v. Parker, 26 Vt. 357. See dissenting opinion by Holmes, Opinion of the Justices, supra.

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CONTRIBUTORY NEGLIGENCE "LAST CLEAR CHANCE" DOCTRINE - EFFECT OF CONCurrent NegLIGENCE OF THE PLAINTIFF.- In an action for death caused by the negligence of the defendant's motorman, the trial court charged that if the motorman saw, or by due care could have seen that the decedent was unconscious of his danger, in time to avoid the accident by the exercise of reasonable care, the plaintiff could recover even though the decedent himself could have avoided the accident up to the instant of the injury. Held, that the instruction is erroneous, in that it allows recovery in a case of concurrent negligence where the defendant did not actually realize the danger. Indianapolis T. & T. Co. v. Davy, 103 N. E. 1098 (Ind. App.).

The "last clear chance" doctrine is properly applicable only when the defendant has a later opportunity than the plaintiff to avoid the accident by the use of reasonable care. Nashua Iron etc. Co. v. Worcester & N. R. Co., 62 N. H. 159. See 26 HARV. L. REV. 369. Accordingly, in situations where the plaintiff himself could have prevented the injury up to the last moment by the exercise of due care, recovery should not be allowed, at least where the defendant's negligence involves only a failure to realize the plaintiff's danger. Dyerson v. Union Pacific R. Co., 74 Kan. 528, 87 Pac. 680; Southern Ry. Co. v. Bailey, 110 Va. 833, 67 S. E. 365. But there is a growing tendency among the authorities to grant relief in spite of the plaintiff's coincident opportunity to avoid, when the plaintiff is merely inattentive to the danger and the de