to witnesses that he owned the stock. In a suit for the purchase price the defense was that there was no delivery to take the case out of the Statute of Frauds. Held, that the sale was valid. Wilson v. Hotchkiss, 154 Pac. 1 (Cal.).

Section 17 of the Statute of Frauds requires that the buyer under an oral contract "shall accept part of the goods so sold and actually receive the same." England has so construed this section as to uphold a sale whenever the buyer has done an act with reference to the goods which recognizes a preëxisting contract of sale. Kibble v. Gough, 38 L. T. R. (N. S.) 204; Page v. Morgan, 15 Q. B. 228. Cf. Taylor v. Great Eastern R. Co., [1901] 1K. B. 774. Under this construction it would seem that a declaration of ownership by a purchasing bailee would be a verbal act of recognition. Edan v. Dudfield, 1 Q. B. 302; Taylor v. Wakefield, 6 El. & Bl. 765, 770. See Lillywhite v. Devereux, 15 M. & W. 285, 291. New York, however, has laid down a rule, accepted in several other American jurisdictions, that transfer of possession cannot be evidenced by mere words. Shindler v. Houston, 1 N. Y. 261. See WILLISTON, SALES, § 87. And this rule has been applied to invalidate a sale to a bailee in possession unless the form of returning the article and receiving it anew was gone through. In re Hoover, 33 Hun. (N. Y.) 553; Dorsey v. Pike, 50 Hun. (N. Y.) 534. But cf. Bristol v. Mente, 79 N. Y. App. Div. 67, 80 N. Y. Supp. 52. Other courts have recognized that it would not be expedient to require a re-delivery to a purchasing bailee. Smith v. Bryan, 5 Md. 141; Snider v. Thrall, 56 Wis. 674, 14 N. W. 814. But cf. Silkman Lumber Co. v. Hunholz, 132 Wis. 610, 112 N. W. 1081. These decisions are supported by the analogy of the case of gifts, for a parol gift to a donee in possession at the time of the gift, is valid. Tenbrook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 Me. 383; Winter v. Winter, 4 L. T. R. (N. S.) 639. Some courts have gone even further and recognized as valid, parol sales of goods not in the possession of either the owner or the buyer. Brown v. Wade, 42 Ia. 647, 650; Calkins v. Lockwood, 17 Conn. 154, 173. Contra, Alderton v. Buchoz, 3 Mich. 322. The principal case seems correct in distinguishing purchases by a bailee from sales when the seller is in possession. Cf. Malone v. Plato, 22 Cal. 103, with principal case.

TRADE-MARKS AND TRADE NAMES - PROTECTION APART FROM STATUTE — RECOVERY OF Profits on SALES UNDER INFRINGING DESIGN. The plaintiffs adopted as a trade-mark for women's shoes the words "The American Girl," under which they advertised and sold their shoes throughout the United States. With full knowledge of this use, the defendants used on a similar grade of shoes the name "The American Lady," sometimes accompanied with their name as "maker," and sometimes with their name only, and sometimes alone. The Circuit Court of Appeals held that the plaintiffs' mark, when applied to women's shoes sold in America, was descriptive and geographical and not subject of a valid trade-mark, but enjoined the unfair competition, and ordered an accounting on the sales of defendants' shoes marked with "The American Lady" without their name as maker annexed. The case came to the Supreme Court on certiorari. Held, that the words "The American Girl" are subject of a valid trade-mark and that the decree ordering an accounting be affirmed upon that ground. Hamilton-Brown Shoe Co. v. The Wolf Bros. & Co., 240 U. S. 251, 36 Sup. Ct. 269.

The plaintiffs sold hosiery under a label on which was written the word "Notaseme." Without knowledge of this use, defendants used a similar label with the word "Irontex" in place of "Notaseme." The plaintiffs notified the defendants that they were infringing their mark and brought a bill in equity to enjoin this use and to recover profits. There was no evidence of confusion in the public's mind. The markets of the two companies rarely conflicted. Held, that the defendants be enjoined from using the label, but an accounting

of profits be denied. Straus v. Notaseme Hosiery Co., 240 U. S. 179, 36 Sup. Ct. 288.

For a discussion of these cases in connection with another recent case, see NOTES, p. 763.

TRADE-MARKS AND TRADE NAMES - PROTECTION APART FROM STATUTE TERRITORIAL LIMITATION OF TECHNICAL TRADE-MARK. —In 1872 the Allen and Wheeler Co. used the words "Tea Rose" as a trade-mark on its flour, making sales throughout Ohio and Pennsylvania, but never advertising nor selling its "Tea Rose" brand in Alabama or the adjoining states. In 1885, without notice of this prior adoption, the Hanover Star Milling Co. used the same brand on its flour for sales throughout Alabama, where it acquired the reputation of being the "Tea Rose Company." In 1895 the Steeleville Milling Co. adopted the same design, and in 1912 sold a quantity of flour of that brand to Metcalf for sale in Alabama. The Hanover Co. obtained a temporary injunction in the District Court, but the United States Circuit Court of Appeals for the Fifth Circuit reversed the decree because of the prior use by the Allen and Wheeler Co. In another district this latter company obtained an injunction against the Hanover Co., but this in turn was reversed by the United States Circuit Court of Appeals for the Seventh Circuit on the ground that the Hanover Co. had acquired a valid trade-mark in Alabama. Because of this diversity on fundamental questions, the cases were brought to the Supreme Court by writs of certiorari before final disposition in the lower courts. Held, that the Hanover Co. had acquired a valid trade-mark in Alabama. Hanover Star Milling Co. v. Metcalf, 240 U. S. 403.

For a discussion of this case with two other recent cases, see NOTES, p. 763.

TRIAL - VERDICT - JOINT TORTFEASORS: SEVERANCE OF DAMAGES. - In an action against joint maintainers of a nuisance the jury found a verdict for $700 against one defendant and for $150 against the other. On interrogation by the court they stated their purpose to find the plaintiff's damages equal to $850 and to divide them between the two defendants. The trial court entered judgment for $850 against both defendants. Held, that the judgment stand. Wands v. City of Schenectady, 156 N. Y. Supp. 860 (App. Div.).

The Supreme Court of Michigan has recently upset a verdict of this sort. Rathbone v. Detroit United Ry., 154 N. W. 143. For a criticism of the Michigan decision, see 29 HARV. L. REV. 344.

TRUSTS CREATION AND VALIDITY CHARITABLE Trusts: PrefeRENCES - RULE AGAINST PERPETUITIES. - A will provided for perpetually maintaining a home for "educated Protestant gentlewomen whose means are small," preference to be given to the lineal descendants of seven named relatives and six friends. Held, that the trust is charitable, and so is not void as infringing the Rule against Perpetuities. Matter of MacDowell, 55 N. Y. L. J. 61 (Court of Appeals).

Under the present New York statutes, the old English law of charitable trusts for undetermined beneficiaries has been restored. Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568. Under that law, whether the invalidity of perpetual trusts without defined beneficiaries is due, as is commonly stated, to the Rule against Perpetuities, or more properly to a rule against inalienability, charitable trusts form a clear exception. See GRAY, RULE AGAINST PERPETUITIES, 3 ed., §§ 589-607. Such trusts must be limited to purposes necessarily charitable as defined by the Statute of Elizabeth. Morice v. Bishop of Durham, 9 Ves. 399, 10 Ves. 522. But the purpose in question is clearly within the established conception, for the courts have upheld trusts for "reduced gentlewomen," "lady teachers in need of rest," and ". wornout clerks." Attorney General v.

Power, 1 Ball & B. 145; In re Estlin, 72 L. J. Ch. 687; In re Gosling, 16 T. L. R. 152. See TUDOR ON CHARITIES, 4 ed., 46–60. Even trusts "for elderly widows and spinsters," although not further limited to charity in the will, have been construed to apply only to those who are poor and are so held charitable. Thompson v. Corby, 27 Beav. 649; Re Dudgeon, 74 L. T. (N. S.) 613. Again, trusts for the relatives of the founder if permanent and limited to those who are poor are held charitable and valid. Attorney General v. Northumberland, 7 Ch. D. 745. See GRAY, RULE AGAINST PERPETUITIES, 3 ed., § 683 and n. A fortiori, gifts for general charitable purposes with a preference for a particular lineage are valid trusts. Dexter v. Harvard College, 176 Mass. 192, 57 N. E. 371; Franklin v. Armfield, 2 Sneed (Tenn.) 305, 351. See Attorney General v. Sidney Sussex College, 34 Beav. 654, 667. And scholarships with such preferences were early recognized. Flood's Case, Hobart 136. Cf. Spencer v. All Souls College, Wilmot 163. Furthermore, were the preferences invalid, the general charitable gift would be good. See Dexter v. Harvard College, supra, 196. The over-riding charitable purpose should prevail even if some of the directions for applications cannot be carried out because not charitable. In re Douglas, 35 Ch. D. 472. See Hunter v. Attorney General, [1899] A. C. 309, 324. Accordingly it seems entirely proper to carry out the donor's intention in the principal case. Cf. Matter of Robinson, 203 N. Y. 380, 96 N. E. 925.

TRUSTS - INCOME AND CORPUS PROFITS BY SALE OF STOCK: APPORTIONMENT BETWEEN LIFE TENANT AND REMAINDERMAN. - The trustee of a corpus largely composed of stocks, was given a power of purchase and sale. The right to the profits gained in some of the transactions made under this power, are now contested by the life tenant and the remainderman under the trust. Held, that the life tenant is entitled to all the gains realized from dealings in the stock, except so much as are necessary to make the present corpus equal in value to the original corpus plus the amount that the original stocks increased in value while still in the hands of the trustee. In re Barron's Will, 155 N. W. 1087 (Wis.).

In the case of a trust of a share in a business the net profits earned go to the life tenant. Heighe v. Littig, 63 Md. 301. See LORING, A TRUSTEE'S HANDBOOK, 3 ed., 124. The decision in the principal case seems to be rested on this principle. But clearly a power of purchase and sale of stock is given the trustee only as a means of protecting the corpus, and does not constitute the trust estate a business in which the life tenant has an interest. Hence, not the earnings of the trustee, but only the earnings of the corporation whose shares have been bought, constitute the life tenant's income. Now an increased market value of the stock of a corporation may be due to undeclared earnings as well as unearned increment. As Wisconsin gives the declared dividends of stock to income or corpus, accordingly as the fund from which they are declared has accrued from earnings or unearned increment, it would seem as if on principle a similar rule should apply to the apportionment of gains due to increased value of stock. See Miller v. Payne, 150 Wis. 354, 377, 383, 136 N. W. 811, 819, 821; see 29 HARV. L. REV. 551. But see 2 PERRY, TRUSTS, 5 ed., § 545, note, p. 94. Such a course, however, is impractical, if not impossible. Therefore, the courts have almost invariably added the entire increase in value of the stock to the corpus. Graham's Estate, 198 Pa. 216, 47 Atl. 1108; In re Robert's Will, 40 Misc. 512, 82 N. Y. Supp. 805. Cf. Billings v. Warren, 216 Ill. 281, 74 N. E. 1050. All the profits from a sale thus belong to the remainderman, and the life tenant is restricted to his share of the declared dividends. And undoubtedly it is more in accord with the intention of the settlor that the fluctuation should occur in the corpus rather than the income. Moreover, as the remainderman must bear the loss of any shrinkage in the funds, it is but equitable that he take the gain. See Graham's Estate, supra, 219. Again the life

tenant is fully protected under this apportionment, for an investment by the trustee in a non-dividend paying stock is certainly a breach of trust. See Jordan v. Jordan, 192 Mass. 337, 345, 78 N. E. 459, 461; Kinmonth v. Brigham, 5 Allen (Mass.) 270, 278. In such case, besides his action against the trustee, the life tenant should be permitted a lien for interest at the market rate on any profit gained by resale of this stock.

WAR-PARTNERSHIP

OF

- ALIEN ENEMY PARTNERS CONDEMNATION CAPTURED PARTNERSHIP PROPERTY. A partnership composed of four partners, two Germans both of German domicile, and two Englishmen resident in Shanghai, was registered at the German consulate in Shanghai as a German firm. A cargo belonging to the partnership was captured. Held, that the shares of the German partners be condemned, and those of the English partners be restored. The Eumaeus, 51 L. J. 7 (Adm. Ct.).

The important consideration in determining liability to condemnation as enemy cargo, is the trade domicile of the owner of the goods. See The Gerasimo, II Moore P. C. 88, 96; Janson v. Driefontein Consolidated Mines, Ltd., [1902] A. C. 484, 505. Consequently the property of a neutral or friend, having a trade domicile in a hostile country, is confiscable. The Venus, 8 Cranch. (U. S.) 253; The Baltica, Spinks P. C. 264. Cf. O'Mealey v. Wilson, 1 Camp. 482. Conversely, the property of an alien enemy having a trade domicile outside the hostile country is not subject to condemnation. The Portland, 3 C. Rob. 41. In the case of a firm it is submitted that under any theory of partnership the individual trade domiciles of the partners must govern condemnation. For at common law, even in the absence of the usual statutes, it is forbidden to make contracts with alien enemies, and antebellum contracts of this sort, if executory, are dissolved by the declaration of war. The Hoop, I C. Rob. 196; Potts v. Bell, 8 T. R. 548. See Clemontson v. Blessig, 11 Ex. 135, 141 n. Since a partnership is based on an executory contract, it is at once dissolved. Griswold v. Waddington, 15 John. (N. Y.) 57, 16 id., 438. Hence its members must be treated separately. But to determine the proportion properly confiscable presents a difficult problem. Until the partnership has been wound up and its accounts settled, each partner really has nothing but a right against the firm for the portion of the surplus which may be found to be due him. Of course, this may not bear any relation to their respective shares in the capital. But it is beyond the power of the prize court to determine this, and any attempt to do so would seriously hinder an effective administration of prize law. Hence the principal case is amply justified by expediency in following the old common law conception of the partners as tenants in common of partnership personalty, to the extent of their shares in the enterprise.

WILLS - EXECUTION ATTESTING WITNESSES- STOCKHOLDERS OF A CORPORATE EXECUTOR. An Illinois statute provides that, if one of the necessary subscribing witnesses to a will is given a beneficial interest in the will, the interest shall be void, but the witness shall testify as to the rest of the will. (1913, HURD'S REV. ST. c. 148, § 8.) A corporation was made the executor of a will. A stockholder and director of the corporation was a necessary subscribing witness. Held, that the stockholder is a valid witness and that the corporation is disqualified as executor. Scott v. Couch, 111 N. E. 272 (Ill.).

In most jurisdictions an executor is considered a valid subscribing witness to a will. Rucker v. Lambdin, 20 Miss. 230. See Cochran v. Brown, 76 N. H. 9, 10, 78 Atl. 1072, 1073. See 22 HARV. L. REV. 616. A fortiori the witness in the principal case would be competent and the whole will valid. But in Illinois, aside from the statute, an executor is considered sufficiently interested to be incompetent. Jones v. Grieser, 238 Ill. 183, 87 N. E. 295. So is a witness who has a contract with the executor for a part of his commissions. Smith v. Goodell,

258 Ill. 183, 101 N. E. 255. Since a stockholder of a corporate executor has a contract right in the profits of the executor, it is natural that he should be considered incompetent. But the purpose of statutes like that in the principal case is to prevent the interest of a witness from invalidating a will; and it would seem better to hold it applicable to all witnesses formerly disqualified by interest. See Jones v. Grieser, 238 Ill. 183, 188, 87 N. E. 295, 296; Winslow v. Kimball, 25 Me. 493, 495. But some states seem to consider the statutes applicable only where the interest of the witness comes directly from the will. So a witness who is spouse of a legatee has not been allowed to testify. Fisher v. Spence, 150 Ill. 253, 37 N. E. 314; Sullivan v. Sullivan, 106 Mass. 474. And in Illinois the statute has been held not to make competent a witness who has a subsisting contractual right to the profits of the executor of a will. Smith v. Goodell, supra. According to these cases it would seem that the stockholder in the principal case, being only a debtor of the executor, would have only an indirect interest in the will, and would not be made a valid witness by the statute.

BOOK REVIEWS

THE NEUTRALITY OF BELGIUM. By Alexander Fuehr. New York: Funk and Wagnalls Co. 1915. pp. x, I-248.

BELGIUM NEUTRAL AND LOYAL. By Emile Waxweiler. New York: G. P. Putnam's Sons. 1915. pp. xi, 1-324.

These two are among the better of those books presented to show the national point of view in regard to the neutrality of Belgium. The first shows the German attitude and the second presents the Belgian point of view. Dr. Fuehr purports to "take as his task only to investigate Germany's case with regard to" the invasion of Belgium. In the first part of the book he presents what is now a well-known history of Belgium's neutrality down to August, 1914. In the second part the legal aspects of Belgium's neutrality are considered. There are in this book many statements for which at present absolute verification seems not to be available; and in the two books identical documents receive opposite interpretation. There is also a tendency to cite only those documents which support the German theory. He even maintains that "taking into consideration fundamental political changes wrought by events since 1870" the guarantee of Belgium's neutrality could not be held to be valid at the outbreak of the present war because of the implied condition in negotiation of treaties, rebus sic stantibus. Referring to the agreement of 1870 between Great Britain and France and between Great Britain and Prussia that Great Britain would act on the side of one or the other of these powers against one or the other which might violate the neutrality of Belgium, Dr. Fuehr states that this agreement of Great Britain constitutes "an affirmation that England did not then consider the treaties of 1839 as binding." He cites statements of a military attaché as offsetting those officially made by a minister of foreign affairs. In mentioning the German demand for the privilege of passing over Belgian territory, he says, after referring to the passage of French troops through Prussia in 1805, "in a similar manner, King Albert of the Belgians might have acted in 1914, following the example set by his grandfather, who, in a situation far more painful to Belgian pride, declared to the powers in 1831 that he 'yielded to the imperious law of necessity."" Dr. Fuehr also says that the fact that perpetual neutrality failed to afford Belgium adequate protection was not necessarily due to any fault of International Law but to the abuse of it. He