Enactments or resolutions of the legislative body clearly estop the government. Where the legislature, by public resolve, declared a certain monument to be the one referred to in an ancient Indian deed, the state was estopped from showing afterwards that it was not the monument referred to. The acts of its agents, when fraudulent or unauthorized, do not estop the government, even when the agents act within the apparent scope of their authority; but this rule may be rested on the presumption of law that those who deal with public officers know the extent of their authority." On the other hand, acts of agents as well as of the legislature, ought to estop the government, if the agents are authorized to shape its conduct in a particular transaction and have acted within the purview of their authority. Where, for instance, under a mistake of fact a public officer overpaid a corporation for its services in carrying the mail, the government was estopped to recover this money from a second corporation which had become the owner of the first, relying on the settlements made with the first by the agent of the government. 10 Even those courts, however, which accept the general principle that the state may be estopped in pais by acts of its agents seem still to be feeling their way, and apply the principle with extreme caution. A recent federal decision furnishes a good illustration of this attitude. Walker v. United States, 139 Fed. Rep. 409 (Circ. Ct., M. D. Ala.). The facts of the case were strong, and the estoppel was allowed, but the court circumspectly declined to commit itself to a more concrete declaration than that the rule would be applied "in a proper case." What is a proper case no court seems yet to have attempted to define.

LEGISLATIVE AUTHORIZATION OF NUISANCES. - Varying expressions of opinion are found in the books as to how far a legislature can authorize what would otherwise be a private nuisance, without providing for the constitutional compensation for the "taking" of private property. The cases seem to confine this form of protection rather strictly to instances of an actual seizure of physical property. When, for example, a chartered railroad encroaches upon none of his land, a person whose real estate deteriorates in value by reason of the smoke, noise, and other concomitants of the proper operation of the road has no redress. But if part of the plaintiff's land is occupied, compensation is often made not only for that portion and for the diminution in value of the remainder caused by the alteration in shape and size, but for the further depreciation resulting from the inevitable smoke, noise, cinders, and jarring created in the operation of the railroad on the portion condemned. Thus, under the guise of compelling payment for land taken, are exacted damages for what is practically a nuisance to be maintained on that land. This eminently equitable result could, however, be reached without artifice simply by placing a less strict construction

3

3 Commonwealth v. Pejepscut, 10 Mass. 155.

9 Dement v. Rokker, 126 Ill. 174, 199; Filor v. United States, 9 Wall. (U. S.) 45. 10 Duval v. United States, 25 Ct. of Cl. 46. See also Hartson v. United States, 21 Ct. of Cl. 451; People v. Stephens, 71 N. Y. 527, 561.

1 See Garrett v. Lake Roland El. Ry. Co., 79 Md. 277.

2 Beseman v. Pennsylvania R. R. Co., 50 N. J. Law 235; Carroll v. Wisconsin Cent. Co., 40 Minn. 168.

3 Bangor, etc., R. R. Co. v. McComb, 60 Me. 290. See Walker v. Old Colony, etc., Ry. Co., 103 Mass. 10.

5

upon the constitutional phrase "taking of property." Property, in the constitutional sense, say many respectable authorities, consists not in the plot of land, but in the right to use it undisturbed. Hence several decisions have called that a taking which without an entry by the trespasser virtually made the enjoyment by the ostensible owner impossible, as by a flood of water or of sand. Others more broadly hold that an easement is property, the taking of which must be paid for. The idea of property on which these cases proceed would lead to the conclusion that any material abridgment of rightful user is the taking of property. On this theory, therefore, recovery might be had for all nuisances, however the legislature had attempted to sanction them, so far as they interfered with the comfortable enjoyment of an individual's land or chattel. This would make possible the collection of damages from a railroad company by very many whose land is situated near its line. Such incidental injuries, however, are said by the courts to be of that class which must be suffered for the common welfare, and which are too slight substantially to impair the rights of property recognized and protected by the state. That this position is logically inconsistent with any but a strict interpretation of constitutional phraseology has already been indicated, and that it is not even unequivocally desirable on grounds of public welfare is shown by the more modern constitutions and statutes, which provide for compensation when property is taken or damaged. Even these, however, under the narrow definition of property, leave many injured parties without a remedy.

8

But whether or not the constitution is construed to assure compensation for an authorized nuisance the extent of the authorization is closely scrutinized. It may be because of such want of authorization that in a recent Texas case a householder was allowed to recover for mere personal inconvenience and annoyance arising from the operation of a freight depot near her premises. St. Louis, etc., Ry. Co. v. Shaw, 88 S. W. Rep. 817 (Tex., Civ. App.). A line of track authorized by legislative enactment necessarily entails certain inconveniences to a large share of the public, but freight yards, water-tanks, and round-houses are structures which may and therefore are intended to be located where they will be of the least possible harm to the community. For any nuisance due to their improper location the railroad is unquestionably liable."

CONSTRUCTIVE TRUSTS ARISING ON BEQUESTS ON SECRET UNDERSTAND- It has recently been held in New York, that where a will recited that a bequest was to be used as the testator had ordered in his lifetime,

INGS.

4 Lewis, Eminent Domain, §§ 54, 55. See Eaton . Boston, etc., R. R., 51 N. H. 504, 511; Shaw, C. J. in Old Colony, etc., Ry. Co. v. County of Plymouth, 14 Gray (Mass.) 155, 161.

5 Pumpelly v. Green Bay Co., 13 Wall. (U. S.) 166; Eaton v. Boston, etc., R. R., supra.

See Lamm v. Chicago, etc., Rd. Co., 45 Minn. 71.

7 Lewis, Eminent Domain, § 56; Cooley, Const. Lim., 7th ed., 787, 788; City of St. Louis v. Hill, 116 Mo. 527; Forster v. Scott, 136 N. Y. 577; City of Janesville v. Carpenter, 77 Wis. 288, 301; Pennsylvania R. R. Co. v. Angel, 41 N. J. Eq. 316, 329.

See Aldrich v. Metropolitan, etc., El. Ry. Co., 195 Ill. 456.

9 Baltimore, etc., R. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Pennsylvania R. R. Co. v. Angel, supra; Missouri, etc., Ry. Co. of Texas v. Anderson, 81 S. W. 781 (Tex., Civ. App.).

and the context made it clear that the legatee was not to take beneficially, the bequest failed. In re Keenan, 94 N. Y. Supp. 1099.

As

In withholding the beneficial interest in the legacy from the legatee the decision is undeniably correct. Common justice, at least, would forbid that he should hold beneficially, in the face of the express provision to the contrary in the will, and his own acquiescence in the oral instructions which lay back of the legacy. A trust, then, will be impressed upon the property in his hands, and the only open question is who should be the cestui. to this question there are two well-known theories. One is, that the testator, having in himself the legal and equitable interests in the property, has given only the legal interest to the trustee; that the oral instructions are inoperative, because, without being duly executed in the testamentary form, they purport to dispose of the testator's beneficial interest upon his death; wherefore there is intestacy as to the beneficial interest, which accordingly passes to the next of kin.2

The unsoundness of this doctrine arises from the fact that the testator could not have had, in himself, both the legal and equitable interests as distinct things. For, as an equitable interest is merely a right in personam against a trustee, and the deceased could not have had a right of action against himself, he therefore could not have been intestate as to any such right. The full and absolute ownership of the property has, therefore, passed to the legatee. The legatee, however, by his express or tacit assent to the oral instructions of the testator has made a contract which the courts of equity specifically perform by enforcing the trust relation when the legacy vests. The oral instructions cannot be objected to under the Statute of Frauds, as the trust which they declare is one of personalty; nor under the Statute of Wills, since they effect the passage of no property from the testator. They tend simply to prove a personal obligation from a legatee to the orally designated cestuis que trust. This theory of a contract on the part of the legatee is applicable to any case where the wishes of the testator are communicated to the legatee before he takes, not only when the bequest is on its face qualified but when it is absolute in form. Even on this point, however, there is some dissent.”

RECENT CASES.

ADMIRALTY TORTS DIVISION OF DAMAGES BETWEEN TWO TORTFEASORS. The plaintiff's ship collided with the ship "Caravellas," and the next day with the ship "Haversham Grange." Each inflicted damage upon the plaintiff's ship which made docking necessary, and in the dock both injuries were repaired simultaneously, those caused by the "Haversham Grange " being finished in six, those inflicted by the "Caravellas" in twenty-two days. The plaintiff sued the "Haversham Grange" for three days' dock dues and three days' demurrage. Held, that the plaintiff may recover the dock dues, but not

1 Taylor v. Plaine, 31 Md. 158.

2 See Lewin, Trusts, 11th ed., p. 58; Olliffe v. Wells, 130 Mass. 221; Heidenheimer v. Bauman, 84 Tex. 174.

See 5 HARV. L. REV. 389; Curdy v. Berton, 79 Cal. 420; Cagney v. O'Brian, 83 Ill. 72.

4 Reech v. Kennegal, 1 Ves. 123.

See Campbell v. Brown, 129 Mass. 23.

demurrage. The Haversham Grange, 21 T. L. R. 628 (Eng., C. A., June 28, 1905).

The question is in what proportion the damages shall be divided between two tortfeasors. It is an English rule of admiralty that if two parties are each obliged to dock a vessel for repairs which are executed simultaneously, the cost of docking must be divided between both parties for the period during which both are at work on the vessel. Marine Ins. Co. v. China Transpacific S. S. Co., 11 App. Cas. 573. Evidently the case at hand falls, as to dockage, directly under this special rule. But no case lays down a similar rule as to demurrage, which question must be settled by the strict logic of legal causation. Where the inevitable consequence of A's tort is a delay of twenty-two days, and B's tort, which occurs subsequently, would have caused a delay of six days, but in fact does not increase the delay already caused, it can scarcely be said that B's tort is a proximate cause of any of the delay, so as to render B liable therefor. Cf. Kuhn v. Delaware, etc., R. R. Co., 99 Hun (N. Y.) 74. Both the upper and the lower court took this view, although it seems hard to reconcile logically with the rule as to dock dues.

BANKS AND BANKING- Deposits

ELECTION OF REMEDIES FOR PAYMENT OF REVOKED CHECK. - A bank paid a check to the payee after payment had been forbidden by the drawer. In an action by the drawer against the bank, evidence showed a former action by the same plaintiff against the payee for the amount of the check. Held, that the bank is liable, since the former action was not a ratification of the payment. Pease & Dwyer Co. v. State National Bank, 88 S. W. Rep. 172 (Tenn.).

Under the Negotiable Instruments Law adopted in Tennessee revocation of a check before payment destroys any right of the payee in the fund and thus renders the bank liable for subsequent payment, as though no order had been drawn. Although a bailor might sue both the bailee for breach of the bailment and the receiver of the chattel in trover, the absence of a specific chattel renders this case distinguishable. See Riley v. Albany Savings Bank, 36 Hun (N. Y.) 513, 522; affirmed in 103 N. Y. 669. The bank's payment may be regarded as the act of a volunteer ratified by suit based upon it. Cf. Simpson v. Eggington, 10 Exch. Rep. 845. It has even been said that suing the payee is adoption of the payee as the maker's agent for receiving payment, and hence a defense to the bank. Riley v. Albany Savings Bank, supra. But the better reason seems to be that, by electing to pursue one of several inconsistent remedies, the plaintiff foregoes the others. Fowler v. Bowery Savings Bank, 113 N. Y. 450. Any action by the depositor against the payee is premised upon the bank's nonliability and necessarily is inconsistent with a claim against the bank. But on whatever theory, it seems the former suit should be a bar.

PLOYEE.

CARRIERS WHO ARE PASSENGERS GRATUITOUS CARRIAGE OF EM- A section hand was injured through the derailment of the work train in which he was riding home from work. Held, that he is still an employee, and not a passenger. Southern Indiana Ry. Co. v. Messick, 74 N. E. Řep. 1097 (Ind., App. Ct.).

Whether a railway employee occupies the position of a passenger depends on the facts of each case. It is evident that an employee who is on a train in the course of his employment is not a passenger. Travelers' Insurance Co. v. Austin, 116 Ga. 264. It is equally evident that an employee who is traveling on business in no way connected with the railroad is for the time being a passenger. Doyle v. Fitchburg R. R. Co., 162 Mass. 66. But the present case is one of the confusing middle class in which injuries are received riding to or from work. A simple distinction that will be found to reconcile most of the decisions is that the employee should not be regarded as a passenger when he is using a privilege granted specially to employees as such. Judged by this test, the present decision is sound, for the work train was provided only for employees. On the other hand, a street railway employee riding home on a regular car like any passenger who has a pass is to be considered a passenger. Peterson v. Seattle Traction Co., 23 Wash. 615. For a further discussion of the question presented, see 11 HARV. L. REV. 340; 14 ibid. 620; 17 ibid. 423.

CARRIERS WHO ARE PASSENGERS

car.

WHEN RELATION BEGINS. - The plaintiff, desiring to become a passenger of a car, signaled to the motorman, who checked its speed. The plaintiff then attempted to board the car while it was still in motion. Held, that he is a passenger while in the act of boarding the Lewis v. Houston Electric Co., 88 S. W. Rep. 489 (Tex., Civ. App.). It is well established that carriers owe the highest care to passengers. It often becomes important, therefore, to determine just when the relation of carrier and passenger begins. The theory is that there must be an offer and an acceptance to a consensual relation, not to a contractual relation, as courts sometimes loosely state, for it is well settled that a carrier owes a public duty independently of contract. See McNeill v. Railroad Co., 135 N. C. 682. Some courts regard the carrier as the offerer and hold that the acceptance is not made until the offeree has actually boarded the car. Donovan v. Hartford Street Ry. Co., 65 Conn. 201. The better opinion supported by the weight of authority, however, considers the signal to the motorman as the offer and the checking of the car as the acceptance. Brien v. Bennett, 8 C. & P. 724; McDonough v. Met. R. R. Co., 137 Mass. 210. To hold otherwise would be unfair to the person boarding the car since thereby the highest care would be denied when most needed.

COMPOSITIONS WITH CREDITORS

- EFFECT-- JOINT DEBTORS. A and B were makers of a joint note. A being insolvent, his creditors made an oral agreement to take ten shillings on the pound. This amount had never been paid to the holder of the note, who attempted to prove in bankruptcy against B. Held, that the promise of A had been taken in satisfaction of any claim against him and that the other joint debtor is thereby discharged. In re Pearse, 1905 Vict. L. Rep. 446.

The rule generally laid down is that only a release under seal to one of two joint debtors will release the other. Line v. Nelson, 38 N. J. Law 358. Still a seal is not necessary where there is consideration for the release. Heckman v. Manning, 4 Col. 543. So it has been held in both England and America that where there has been an accord with one joint debtor and the satisfaction agreed upon has been rendered, the other debtor is discharged, whether the agreement was under seal or not. In re E. W. A., [1901] 2 K. B. 642; Booth v. Campbell, 15 Md. 569; but see 15 HARV. L. REV. 491. Several cases have been found in which a composition agreement containing a release under seal has discharged a joint debtor not a party thereto. Merritt v. Bucknam, 90 Me. 146. From the facts reported in the case at hand, the court seems to have gone a long way in finding that it was the promise which was taken in satisfaction of the claims. Connecting this with the fact that the agreement was merely oral and that the consideration which supports a composition with creditors is of a very questionable kind, the case illustrates a considerable extension of the original rule.

CONFLICT OF LAWS CHANGE OF SOVEREIGNTY - LAW GOVERNING IN TERRITORY CEDED BY STATE TO UNITED STATES. - The plaintiff's intestate, while working in the United States Navy Yard in Brooklyn, was killed through the negligence of the defendant. When the state of New York in 1853 ceded jurisdiction over this tract of land to the federal government, a state statute existed allowing an action for causing death; but this was repealed in 1880, and another of a similar nature passed. There had been no legislation by Congress. Held. that the defendant is liable. McCarthy v. Packard Co., 105 N. Y. App. Div. 436.

When a state cedes to the United States jurisdiction over territory which is used by the latter for certain public purposes, such as the erection of forts and dock-yards, the laws of the state continue in force in such territory until abrogated or changed by federal legislation. Chicago, etc., Ry. Co. v. McGlinn, 114 U. S. 542. Such territory, however, ceases to be a part of the state and becomes a separate unit subject to the exclusive jurisdiction of the federal government. Cf. Commonwealth v. Clary, 8 Mass. 72. Hence it follows that the statute passed by the state of New York after the cession did not affect the