negligence. Martin v. Des Moines Light Co., 131 Ia. 724, 106 N. W. 359. In this sense the doctrine has no application to the facts of the principal case. Clearly a literal interpretation of the language of the Act sustains the court in limiting the scope of the expression to this latter meaning. Such, however. must have also been the intention of the legislature. For an earlier New York Act had been called unconstitutional because it established a relational liability without fault. Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431. And it was to avoid this result that the Massachusetts legislature inserted this optional common-law remedy. See Opinion of Justices, 209 Mass. 607, 610, 96 N. E. 308, 315; RUBINOW, SOCIAL INSURANCE, 175. Therefore, to hold that the optional common-law remedy likewise established a relational liability without fault would be to defeat the very purpose of the legislature in providing the option.

MORTGAGES - PRIORITIES PRIORITY OF SUBSEQUENT CREDITORS OVER BONDHOLDERS. A receiver was appointed for the defendant railroad, and subsequently the bondholders brought suit to foreclose. The plaintiff intervenes, claiming priority to the bondholders for certain claims out of the proceeds of the foreclosure sale, on the ground that they arose from services which the plaintiff, as a connecting carrier, was legally bound to render to the defendant. Held, that these claims do not take priority over the lien of the bondholders. Chicago, etc. R. Co. v. United States, etc. Trust Co., 225 Fed. 940 (C. C. A., 8th Circ.).

Current expenses of a railroad have a claim on gross earnings prior to that of the bondholders, on the ground that the creditors relied on such earnings rather than on general credit. Virginia, etc. Coal Co. v. Central R. & B. Co., 170 U. S. 355. But only when the income has been diverted from the payment of current expenses to the improvement of the property may such claims be satisfied cut of the corpus, in preference to the bondholders. Burnham v. Bowen, III U. S. 776; Southern Ry. Co. v. Carnegie Steel Co., 76 Fed. 492. See 18 HARV. L. REV. 605. It has been stated that an exception exists where the preservation of the business requires immediate payment. Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 311; see dissent in Gregg v. Metropolitan Trust Co., 197 U. S. 183, 190. Although the courts in the later cases recognize this exception, their refusal to apply it shows its narrow limits. Thomas v. Western Car Co., 149 U. S. 95; Gregg v. Metropolitan Trust Co., supra. See Kneeland v. American Loan & Trust Co., 136 U. S. 89, 98; Lackawanna Iron & Coal Co. v. Farmers' Loan & Trust Co., 176 U. S. 298, 316. The plaintiff's claim in the principal case, therefore, suggests a new exception, which the court seems correct in denying. The plaintiff, having entered the business of a carrier voluntarily, can scarcely complain of the relational burdens it has thereby assumed, nor make such complaint the basis of a claim for a preference. Indeed, a preference to a common carrier has been held the less justified, because immediate payment is not necessary to secure continued service. Carbon Fuel Co. v. Chicago, etc. R. Co., 202 Fed. 172.

MUNICIPAL CORPORATIONS - OFFICERS AND AGENTS LIABILITY OF HIGHWAY CONTRACTOR FOR MISFEASANCE. The defendant, a contractor working on county roads, negligently piled stones on the road without proper safeguards. The plaintiff sues for injuries to himself and team resulting therefrom. Held, that he may not recover. Ockerman v. Woodward, 178 S. W. 1100 (Ky.) For a discussion of this case, see NOTES, p. 323.

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NEGLIGENCE - DEFENSES - ILLEGAL CONDUCT OF THE PLAINTIFF. statute requires public officers to impound all cattle running at large in highways. MASS. R. L., c. 33, §§ 22, 23. The plaintiff's bull escaped into the highway and was there killed by the defendant's negligently driven street car.

Held, that the plaintiff can recover the value of the bull. Carrington v. Worcester Consolidated St. Ry. Co., 109 N. E. 828 (Mass.).

Unlicensed automobiles are held in Massachusetts to be trespassers, and neither their owners nor persons riding in them can recover from negligent defendants. Dudley v. Northampton St. Ry. Co., 202 Mass. 443, 89 N. E. 25; Holden v. McGillicuddy, 215 Mass. 563, 102 N. E. 923. See Bourne v. Whitman, 209 Mass. 155, 171, 95 N. E. 404, 408. See 28 HARV. L. REV. 505. But bulls are apparently less trespassers than automobiles, though the only offense of the machine is the failure of its owner to pay a license tax, while the bull's very presence is in effect prohibited by the positive requirement that he be taken up. Indeed, it has been expressly stated by the Massachusetts court that the presence of cattle in the highway under such a statute is unlawful. See Leonard v. Doherty, 174 Mass. 565, 570, 55 N. E. 461, 462. The distinction cannot be explained by a lenience toward cattle, for in Massachusetts cattle trespassing on private property render their owners liable. Lyons v. Merrick, 105 Mass. 71. And even where by decision or statute this is otherwise, cattle straying upon private property are nevertheless trespassers and have only the rights of such. Beinhorn v. Griswold, 27 Mont. 79, 69 Pac. 557; Herold v. Meyers, 20 Ia. 378. Cf. Haughey v. Hart, 62 Ia. 96, 17 N. W. 189. In many jurisdictions there is a duty of due care in active conduct owed to trespassers after their presence has come to the attention of the defendant. Herrick v. Wixon, 121 Mich. 384, 80 N. W. 117. In such jurisdictions, or in the absence of a rule holding an unlicensed automobile a trespasser as against lawful users of the highway, the decision in the principal case is right enough. Smith v. St. Paul City Ry. Co., 79 Minn. 254, 82 N. W. 577. Cf. Davies v. Mann, 10 M. & W. 546. But where actually made it seems to show a tendency, previously noticed, to regard persons who use automobiles as in some way deserving of less consideration than the remainder of mankind. See 28 HARV. L. REV. 91.

PARENT AND CHILD- AGREEMENTS CONCERNING CUSTODY — LIABILITY OF PARENT. A father who had delivered his infant child to the plaintiff under an agreement that the latter should keep it until it came of age, took the child back before that time arrived. Held, that the plaintiff can recover on a quantum meruit for services actually rendered. Gordon v. Wyness, 155 N. Y. Supp. 162.

In determining disputes as to the custody of children, the court acts as parens patriae and regards the welfare of the child as the controlling consideration. Kelsey v. Green, 69 Conn. 291, 37 Atl. 679. When the interests of the child will best be promoted by leaving it with its foster parent, the father will not be allowed to take it back. Hussey v. Whiting, 145 Ind. 580, 44 N. E. 639; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196; Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831. However, when, as is usual, it is best for the child to have its father's care, his agreement to give the custody to another will not deprive him of the right to resume possession. Wood v. Shaw, 92 Kan. 70, 139 Pac. 1165. But if the agreement be regarded as valid, the father, when he rescinds it, must place the foster parent in statu quo. See WILLISTON'S WALD'S POLLOCK ON CONTRACTS, 337, 343. And even if, as most courts hold, the agreement is invalid, the case falls within the principle that one who performs services for another with the latter's assent, can recover their reasonable value. See WILLISTON'S WALD'S POLLOCK ON CONTRACTS, II. Moreover, when a father fails to support his child, a stranger who supplies necessaries can recover from the father. De Brauwere v. De Brauwere, 203 N. Y. 460, 96 N. E. 722. Of course there can be no recovery by one who, when he conferred the benefit, intended it to be gratuitous. Collyer v. Collyer, 113 N. Y. 442, 21 N. E. 114; Brown v. Tuttle, 80 Me. 162. But in the

principal case, the plaintiff expected to receive compensation through the society of the child. Therefore, since his services under the agreement were not illegal or officious, he can recover on a quantum meruit.

PATENTS INFRINGEMENT USE BY GOVERNMENT. - Certain government officers drew up specifications for wireless apparatus for warships. These plans made it impossible to build such apparatus without infringement of the plaintiff's patent. The government advertised for bids and awarded the contract to supply the apparatus to the defendant. The patentee brings a bill to enjoin the carrying out of this contract. On a motion for a preliminary injunction the entire bill was dismissed. Marconi Wireless Telegraph Co. of America v. Simon, 54 N. Y. L. J. 671 (U. S. Dist. Ct., South. Dist. Ñ. Y.).

Before 1910 a patentee had no relief for a governmental infringement of his patent unless a contractual obligation to pay for the same could be established. Schillinger v. United States, 155 U. S. 163; United States v. Berdan Fire-Arms Mfg. Co., 156 U. S. 552. This was owing to the fact that the United States had consented to be sued only in actions sounding in contract. See U. S. REV. STAT., § 1059. In 1910 a statute was passed permitting a patentee to recover just compensation in the Court of Claims in case the United States used his patent without license or lawful right. See 1 FED. STAT. ANN., 1912 SUPP. 286. This statute has been construed as establishing the right of the government to appropriate a license to use a patent as an exercise of the power of eminent domain. See Crozier v. Krupp, 224 U. S. 290, 305. Under this construction the appropriation by the government is no longer a tort with no remedy but a lawful taking, since compensation need not precede the taking. Great Falls Mfg. Co. v. Garland, 25 Fed. 521. Granting, then, that since 1910 the government may lawfully appropriate a license to use a patent, it should be permitted to do so through the means of an independent contractor since there is no substantial difference between appropriating a patent directly by government agents or indirectly by an independent contractor. There is no hardship on the patentee since he recovers just compensation in the Court of Claims.

PLEDGES WRONGFUL SALE OF STOCK BY BANK PRESIDENT - LIABILITY OF BANK. The plaintiff pledged stock to the defendant bank, giving the president of the bank authority to sell the stock in case the debt was unpaid when due. The latter, without notice to the plaintiff, fraudulently sold the stock for an inadequate price. Held, that neither the bank nor its president is liable in trover for the conversion of the stock, but that the latter is liable for the damages the plaintiff has actually incurred. Lem v. Wilson, 150 Pac. 641 (Cal. Dist. Ct. of App.).

No express authority is needed to enable the pledgee to sell stock pledged if the debt remains unpaid at maturity, and the sale is made after due notice to the pledgor, for an adequate price, and under conditions reasonably tending to safeguard the pledgor's interests. Morris Canal & Banking Co. v. Lewis, 12 N. J. Eq. 323; Diller v. Brubaker, 52 Pa. St. 498. See JONES, PLEDGES AND COLLATERAL SECURITIES, 2 ed., §§ 721, 722, 723. In the principal case the authority given by the plaintiff to the bank president waived none of these conditions of sale, and was merely an affirmance of the pledgee's common-law right. Again it did not constitute the president the plaintiff's agent to sell the stock, for the sale is for the benefit of the bank, not for the plaintiff. See MECHEM, AGENCY, § 1. Nor is the president made a trustee, for the plaintiff, and not he, has the legal title to the pledge res. See PERRY, TRUSTS AND TRUSTEES, 6 ed., §§ 1, 2. Then, since the sale was wrongful, it amounts to a conversion of the stock. Dimock v. United States Nat. Bank, 55 N. J. L. 296, 25 Atl. 926; Content v. Banner, 184 N. Y. 121, 76 N. E. 913. Technically, it is a conversion for which trover should not lie, since the pledgor has neither posses

sion nor the right to possession, at the time of the conversion. Halliday v. Holgate, L. R. 3 Ex. 299. However, it is now generally held that the pledgor may sue in trover when the pledgee sells wrongfully after maturity, on the theory that the tortious act vests the right to possession in the pledgor. Neiler v. Kelley, 69 Pa. St. 403; Feige v. Burt, 118 Mich. 243, 77 N. W. 928; King v. Boerne State Bank, 159 S. W. 433 (Tex. Civ. App.). See 13 HARV. L. REV. 55; 18 ibid. 610. And since the sale was made by the president in the scope of his authority, and for the benefit of the bank, the latter should be liable in trover also. Johnston Fife Hat Co. v. Nat. Bank of Guthrie, 4 Okla. 17, 44 Pac. 192. POST-OFFICE - USE OF MAILS TO DEFRAUD-WHAT CONSTITUTES "SCHEME OR ARTIFICE." The defendant, as president of a corporation engaged in a legitimate business, mailed a fraudulent statement of its financial condition to a bank to induce a loan to the corporation. The use of the mail for any scheme or artifice to defraud or obtain money by false pretenses is unlawful. CRIM. CODE, 215; 35 U. S. STAT. AT L. 1130. The defense was that this single transaction in connection with a legitimate business was not a "scheme or artifice" within the meaning of the statute. Held, that the defendant was guilty of a violation of the statute. Bettman v. United States, 224 Fed. 819 (C. C. A., 6th Circ.).

Until the latest amendment, this statute only provided against the use of the mails for a scheme or artifice to defraud. REV. STAT., § 5480; as amended, 25 U. S. STAT. AT L. 873. The underlying purpose of the statute was stated to be the broad one of reserving the mails to legitimate business. See Horman v. United States, 116 Fed. 350. Further, the phrase "scheme or artifice" received a very broad construction. Durland v. United States, 161 U. S. 306, 313; United States v. Stever, 222 U. S. 167, 173; O'Hara v. United States, 129 Fed. 551, 555. The amendment making criminal a scheme or artifice to obtain money by false pretenses considerably broadened the scope of the act. Misrepresentations of financial condition mailed to one that he might induce others to make loans relying upon those representations constitutes use of the mails for a scheme within the statute. United States v. Young, 232 U. S. 155. Also such single transactions as a blackmailing letter, or an attempt to obtain goods by mailing a worthless check in payment, are "schemes" within the statute. Weeber v. United States, 62 Fed. 740; Harrison v. United States, 200 Fed. 662, 665; Charles v. United States, 213 Fed. 707, 712. Even under the unamended statute a transaction apparently indistinguishable from that in the principal case was held to fall within the statute. Scheinberg v. United States, 213 Fed. 757. In view of the fact that the broad interpretation always given to this act was nevertheless followed by amendments extending its scope, the principal case seems necessarily correct.

QUASI-CONTRACTS RESCISSION OF CONTRACT FOR SALE OF LAND BY PURCHASER - RECOVERY BY VENDOR FOR USE AND OCCUPATION. - A purchaser in possession under a contract for the sale of land, on the ground of a breach by the vendor, rescinded the contract and recovered back the part payment he had already made, but no interest thereon. The vendor sues for the value of the use and occupation of the premises. Held, that he cannot recover. Castle v. Armstead, 168 App. Div. (N. Y.) 466.

It is well settled that an action for use and occupation lies only where there is the "relation of landlord and tenant" between the parties. 2 TAYLOR, LANDLORD AND TENANT, 9 ed., § 636. Some courts construe this to exclude cases where the relation is that of vendor and purchaser. Smith v. Stewart, 6 Johns. (N. Y.) 46; Ankeny v. Clark, 148 U. S. 345, 359. But the better view is merely that the defendant must have been in possession in acknowledged subordination to the plaintiff's title. Clark v. Green, 35 Ga. 92. This is a necessary premise for those cases, representing the weight of authority, which

allow a recovery by a vendor when the failure of the contract is due to some fault of the purchaser. Woodbury v. Woodbury, 47 N. H. II. See 2 WARVELLE, VENDORS, 2 ed., § 876. However, where the vendor is at fault, he is generally not allowed to recover. Hough & Wood v. Birge, 11 Vt. 190. It would seem more equitable to make recovery depend on the usual principles of unjust enrichment, rather than on the fault of either party, and some cases adopt this view. Allen v. Talbot, 170 Mich. 664, 669, 137 N. W. 97, 98; Jones v. Grove, 76 Wash. 19, 22, 135 Pac. 488, 489. Thus the result reached in the principal case is justified by the fact that the defendant received no interest on the purchase price, which may therefore be balanced against the plaintiff's claim for the value of the use and occupation. Ohio Valley Trust Co. v. Allison, 243 Pa. St. 201, 89 Atl. 1132. See Grainger v. Jenkins, 156 Ky. 257, 259, 160 S. W. 926, 928.

RESTRAINT OF TRADE - COMPULSORY SALES - IMMATERIALITY OF MOTIVE IN REFUSING TO SELL. The plaintiff maintained a system of retail stores. The defendant, manufacturer of "Cream of Wheat," sold to plaintiff at wholesale rates on condition that plaintiff would resell only at prices requested by defendant. Upon his refusal to maintain the retail price, defendant declined further to deal with plaintiff and requested that the jobbers to whom he sold do likewise. The plaintiff brought suit in the Federal District Court praying that the price maintenance scheme be declared a violation of the anti-trust laws, and that defendant be restrained from "cutting off the said plaintiff's supply" of "Cream of Wheat." On appeal to the Circuit Court of Appeals, the refusal of the lower court to grant a preliminary injunction was affirmed. The Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co. (not yet reported). The court brushes aside the plaintiff's contention that the defendant's system of price maintenance was in restraint of trade with the remark that the business of the defendant was not a monopoly, and bases its decision on the ground that the common-law right of a trader to deal with whom he pleased, for what reason he pleased, has not been altered either by the Sherman Law or the Clayton Act. For a discussion of the principles involved in attempted compulsory sales and price maintenance, see 29 HARV. L. REV. 77.

LIMITAAn ante

RULE AGAINST PERPETUITIES INTERESTS SUBJECT TO RULE TION FOR LIFE EXPECTANT UPON ESTATE VOID FOR REMOTENESS. nuptial settlement provided that property should be held in trust for the settlor for life, then for his wife for life, then for the children of the marriage who should reach the age of twenty-five, then for the settlor's sisters for life, with further trusts declared. Held, that the trust in favor of the sisters is void for remoteness. Re Hewett's Settlement, 113 L. T. R. 315 (Ch. Div.).

The rule, that the remoteness of one estate avoids all subsequent estates that are expectant on it, is clear law in England. Beard v. Westcott, 5 B. & Ald. 801; Re Thatcher's Trusts, 26 Beav. 365. The court in the principal case felt bound by these authorities, though considerable criticism has been directed at this rule. See GRAY, PERPETUITIES, 2 ed., §§ 251 et seq. See Crozier v. Crozier, 3 Dr. & War. (Ire.) 353, 369. Since the gift over, though expectant on an estate which is void for remoteness, runs to a person in being, it must necessarily vest within the prescribed period, and is therefore no violation of the rule against remote future interests. See GRAY, PERPETUITIES, 2 ed., § 252; 18 HARV. L. REV. 232. This reasoning is accepted in cases involving powers of appointment. Crozier v. Crozier, 3 Dr. & War. (Ire.) 353. The rule of the principal case is supported only on the unjustified assumption that in the absence of an express provision the limitations shall be construed as alternative, and the result thus reached more nearly conforms to the intent of the testator or settlor. See Monypenny v. Dering, 2 DeG. M. & G. 145, 182. It is to be