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STATUTE OF FRAUDS — CONTRACTS NOT TO BE PERFORMED WITHIN ONE YEAR- SPECIFIC PERFORMANCE OF AGREEMENT TO REDUCE TO WRITING DENIED. The plaintiff and defendant entered into an oral contract which was not to be performed within one year. There was also an oral agreement to reduce the contract to writing. Plaintiff seeks specific performance of this latter agreement. Held, that the agreement is within the Statute of Frauds and will not be specifically enforced. Clark v. City of Bradford Gas & Power Co.,

98 Atl. 368 (Del.).

Technically the agreement to reduce the main contract to writing is not within the statute, for it may be performed within one year. But as a practical matter, the recognition of such an agreement as valid would be tantamount to taking the main contract out of the statute. For this reason, courts of law treat the two contracts as inseparable, and refuse to give damages for a breach. McLachlin v. Village of Whitehall, 114 App. Div. 315, 99 N. Y. Supp. 721. See BROWN, STATUTE OF FRAUDS, 5 ed., $284. Nor will equity specifically enforce such a contract. Sarkisian v. Teele, 201 Mass. 596, 88 N. E. 333; Henderson v. Henrie, 68 W. Va. 562, 71 S. E. 172. See McKinley v. Lloyd, 128 Fed. 519, 521. If the plaintiff has been induced by actual fraud of the defendant to dispense with a written memorandum, specific enforcement will be granted. Peek v. Peek, 77 Cal. 106, 19 Pac. 227. But see Box v. Stanford, 13 Sm. & M. (Miss.) 93. But mere breach of promise to reduce the agreement to writing does not constitute such a fraud. Caylor v. Roe, 99 Ind. 1.

STATUTES INTERPRETATION "ADDED" AND "MIXED" INGREDIENTS WITHIN THE PURE FOOD ACTS. The Food and Drugs Act prohibits the manufacture of food containing an "added deleterious ingredient which may render such article injurious to health. 34 STAT. AT LARGE, 768. Under this Act a quantity of Coca Cola was libeled. The formula for Coca Cola includes caffeine. Held, that the caffeine was an "added ingredient" within the meaning of the Act. U. S. v. Forty Barrels of Coca Cola, 36 Sup. Ct. Rep. 573.

The English Sale of Food and Drugs Act enacts that "no person shall mix any article of food with any ingredient or material so as to render the article injurious to health," and that "no person shall sell any such article so mixed." 38 & 39 VICT. c. 63. Under this Act the defendant was prosecuted for selling preserved cream," a well-known commodity, made up of cream and boric acid. Held, that the boric acid was a "mixed" ingredient within the meaning of the Act. Haigh v. Aerated Bread Company, 114 L. T. R. 1000 (K. B.).

In both cases the objectionable ingredient was an essential element of the food. Counsel therefore argued that it couldn't be "mixed" or "added," as it constituted the food itself, and was so understood by the public. But the courts refused to give the words "added" and "mixed" any significance. Now it is a rule of construction that, whenever possible, effect should be given to every word of a statute. See Market Co. v. Hoffman, 101 U. S. 112, 115; Bend v. Hoyt, 13 Pet. 263, 272. But this will not be done at the expense of defeating the intent of the act. See Cearfoss v. State, 42 Md. 403. The decision therefore in these cases really rests on the imputed intent of the legislature to pass a general health measure and not merely protect the public from injurious deception. In neither case is the intent obvious. But in the American case the purpose of Congress appears to be especially obscure. Cf. U. S. v. Forty Barrels of Coca Cola, 215 Fed. 535, 539, with French, etc. Co. v. U. S., 179 Fed. 824, 825, and U. S. v. Lexington, etc. Co., 232 U. S. 399, 409.

TAXATION PARTICULAR FORMS OF TAXATION - INCOME TAX: TAX ON THE INCOME OF A PERSON DYING BEFORE THE PASSAGE OF THE LAW. The Federal Income Tax became a law October 3, 1913. It provided that incomes should be taxable from March 1, 1913. The plaintiff's testator died July 22,

1913. Held, that his income may be taxed from March 1 until his death. Brady v. Anderson, 55 N. Y. L. J. 1999 (U. S. Dist. Ct., S. D., N. Y.).

A tax law is always construed as having only a prospective effect if that construction is possible. State v. Newark, 40 N. J. L. 92. The specific provision to the contrary bars this construction of the income tax law. The court in the main case construes this provision to apply even when the person whose income is taxed has died before the law was passed. If this construction involves serious constitutional doubt, it should not be adopted if the language of the act will reasonably bear another. It is true that a tax on income can be measured restrospectively by the income of the preceding year. Stockdale v. Insurance Co., 20 Wall. (U.S.) 323. In fact it has been held so under this very law. Brushaber v. Union Pacific R. Co., 240 U. S. 1. But it would seem that the basis of such decision is the fact that in reality the tax is on the person, and that the income of the preceding year is a fair measurement for such a tax. See FOSTER, INCOME TAX, 2 ed., III, 115. This is true also of property taxes. People v. Seymour, 16 Cal. 332; People v. Spring Valley Hydraulic Gold Co., 92 N. Y. 383. The language of some courts would even seem to put a tax on realty in the same category. Rundell v. Lakey, 40 N. Y. 513; Succession of Mercier, 42 La. Ann. 1135, 1142, 8 So. 732, 734. If, similarly, an income tax is a tax on the person, the principal case, in taxing a dead man, is certainly novel. The physical possibility of such a tax is not easy to grasp; but even if possible, it would seem unconstitutional, being a tax for protection he can never enjoy. If, however, the tax is upon the transfer of wealth, then the rule in inheritance taxes, that as the privilege is already enjoyed it cannot be taxed retroactively, must apply. Matter of Pell, 171 N. Y. 48, 63 N. E. 789; Case of Lansing, 182 N. Y. 238, 74 N. E. 882. If, however, the third possibility is the case, and this tax is a tax on income as property, still it would be unconstitutional, if for no other reason than that it is a direct tax not apportioned among the states. For the Sixteenth Amendment refers only to income, and when the law in the principal case was passed the income had already become capital. It has been held that the income of a person who dies during the year may be taxed, under a law already in force during the entire year, for the proportion of the year during which he was living. Mandell v. Pierce, 3 Cliff. (U. S. C. C.) 134. But in that case there was both a person in existence and income coming in during a period when the tax law was in force.

TREASON-JURISDICTION

· BREACH OF ALLEGIANCE COMMITTED ABROAD.

- An indictment was brought against Casement for high treason charging adherence to the king's enemies in Germany. There was a motion to quash the indictment. Held, motion refused. Rex v. Casement, 32 Times L. R. 667. Nations vary greatly in the extent to which they claim jurisdiction over crimes committed outside their kingdom. See HOLLAND, ELEMENTS OF JURISPRUDENCE, 9 ed., 400 et seq. In general the jurisdiction of the English common law has been strictly territorial. See MacLeod v. Attorney-General for New South Wales, [1891] A. C. 455, 458. This limitation, it is interesting to note, is apparently a result of the feudal conception of land-allegiance. See MAINE, ANCIENT LAW, 5 ed., 102. However, the feudal system also demanded personal allegiance. And a breach of allegiance will naturally be apt to occur outside the territorial control of the sovereign. Wherefore, even in the earliest times it is to be noted that in case of treason, jurisdiction was personal. See I HALE, PLEAS OF THE CROWN, 159 et seq.; 2 HAWKINS, PLEAS OF THE CROWN, 306; 3 COKE, INSTITUTES, c. 1, pp. 10-11. In recent times, however, England has extended this theory of personal jurisdiction, by statute, to cases of murder, manslaughter, or bigamy. See 24 & 25 VICT. C. 100, §§ 9, 57. Undoubtedly in this country the constitutional provision as to treason would be construed to confer an equally extensive jurisdiction.

UNFAIR COMPETITION

- INTERFERENCE WITH ANOTHER'S SELLING SYSTEM. -The plaintiff was the originator and manufacturer of a toy consisting of strips of metal of various shapes and sizes, with which it was possible to build in miniature some of the more common mechanical contrivances. The toy was sold in "outfits," seven in all, each "outfit" fitting in with the previous ones purchased and increasing the possibilities of the toy. The defendant began its manufacture, making his "outfits" interchangeable with the plaintiff's and selling at a lower price than his rival. This resulted in a considerable falling off in the plaintiff's business, for which relief is now sought in the form of an injunction restraining the defendant from selling "outfits" interchangeable with the plaintiff's. Decreed, that the injunction issue. Meccano, Ltd. v. Wagner, 234 Fed. 912.

For a discussion of the principles involved, see NOTES, p. 166.

WILLS

CONSTRUCTION

RULE IN SHELLEY'S CASE REMAINDER TO "ISSUE, SHARE AND SHARE ALIKE."- Land was devised to trustees to the testator's daughter for life, and then to "her issue, and if there be more than one, share and share alike." By statute fee tail is transformed into fee simple. Held, that the daughter takes a fee simple. Bullen v. O'Leary, 1916 Vict. L. R.

297.

The rule in Shelley's Case creates a fee tail where a life estate is followed by a remainder to the direct descendants of the life tenant in an indefinite line of inheritable succession. See SPITZ, CONDITIONAL AND FUTURE INTERESTS IN PROPERTY, 42. The rule was originally applicable only where the remainder was to “heirs of the body." It still applies wherever there is a remainder in these words. See CHALLIS, REAL PROPERTY, 3 ed., 153. For the words "heirs of the body" are conclusively presumed to denote an indefinite line of succession. In wills the rule has also been extended to certain other words equivalent in meaning. So it has been applied where there is a remainder to "issue." Bowen v. Lewis, L. R. 9 A. C. 890. See CHALLIS, REAL PROPERTY, 3 ed., 164. In England, as in the principal case, the rule has been held applicable in wills to such other words, even where the context clearly shows that they are intended to designate particular individuals and not an indefinite line of succession. Van Grutten v. Foxwell, [1897] A. C. 658; Roddy v. Fitzgerald, 6 H. L. C. 823. Contra, Montgomery v. Montgomery, 3 Jo. & La T. 47. An analogous problem has also arisen in wills as to what words constitute words of limitation so as to create a fee tail directly, without the use of Shelley's rule. In that case, although words other than "heirs of the body" may be considered words of limitation and so may create an estate tail, yet they do not create such an estate, if it appears that they were meant to be words of purchase. See SMITH, EXECUTORY INTERESTS, 248. In other words, except where the technical words "heirs of the body" are used, the intention is held to govern. The same principle is applied in America to Shelley's rule. So where, as in the principal case, words other than "heirs of the body" are used with a clear intent for a remainder to definite individuals and not to an indefinite line, the rule is held not applicable. Kemp v. Reinhard, 228 Pa. 143, 77 Atl. 436; Mallery v. Dudley, 4 Ga. 52; In re Daniel Utz, 43 Cal. 200.

WITNESS PRIVILEGE AGAINST SELF-INCRIMINATION APPLICATION TO COMPULSORY STATEMENTS OUT OF COURT. - The defendant was convicted of violating a statute requiring an operator of a motor car who knows that he has injured a person to return to the scene of the accident and give his name, address, and license number to any proper person demanding the same. N. H. LAWS 1911, ch. 133, § 20. The Constitution of New Hampshire provides that "no subject shall . . . be compelled to accuse or furnish evidence against himself." BILL Of Rights, Art. 15. Held, that the statute is constitutional. State v. Sterrin, 98 Atl. 482 (N. H.).

The authorities are unanimously in accord with the principal case. People v. Rosenheimer, 209 N. Y. 115, 102 N. E. 530; People v. Diller, 24 Cal. App. 799, 142 Pac. 797; Ex Parie Kneedler, 243 Mo. 632, 147 S. W. 983. They proceed upon the argument that automobile driving is a privilege granted by the state upon condition that the operator waives his constitutional privilege against self-incrimination. But it is suggested that in the case of an unlicensed driver a waiver of the constitutional privilege could not reasonably be inferred from the act of going on the highway, without knowledge of the condition and without intent to waive the privilege. If that is so, the statute, being unconstitutional as to part of the persons falling within its terms, would be unconstitutional as a whole. James v. Bowman, 190 U. S. 127. The principal case may be supported on other grounds, however. The problem is to determine the legal meaning of the word “evidence” in the New Hampshire Constitution. Though there is a singular lack of authority in the books, it would seem that at early common law "evidence" meant matters of fact offered in a judicial investigation, and that nowadays it is properly stretched to include matters of fact offered in all sorts of investigations. In re Emery, 107 Mass. 172. See In re Van Tine, 12 How. Pr. (N. Y.) 507; THAYER, PRELIMINARY TREATISE ON EVIDENCE, 264. But the existence of an investigation and the offering of facts for their probative or testimonial value in that investigation are apparently necessary elements; and neither of them was to be found in the defendant's situation under the statute. See People v. Rosenheimer, 146 App. Div. 875, 878, 130 N. Y. Supp. 544, 546; U. S. v. Cross, 20 D. C. 365, 382; WIGMORE, EVIDENCE, §§ 2263, 2264. If the New Hampshire constitutional privilege were phrased with the word "witness," as in the federal Constitution, the conclusion would be easier to grasp; but the extent of the privilege does not vary with the terms used to describe it. See WIGMORE, EVIDENCE, § 2252. Cf. 24 HARV. L. REV. 570.

BOOK REVIEWS

A TREATISE ON THE CONFLICT OF LAWS, OR PRIVATE INTERNATIONAL LAW. By Joseph H. Beale. Volume I, Part I, pp. lxxx, 189. Cambridge: Harvard University Press. 1916.

The above is but a small fraction of a comprehensive treatise on the Conflict of Laws, the finishing of which, according to the preface, will involve the labor of many years. It is offered merely in a tentative form for the purpose of inviting criticism and of enabling the author to benefit "by further study and by more mature thought, and especially by that ocular demonstration of faulty thought and inept expression which seeing one's thought in print alone can give.' When at last the work is completed, our author hopes that it will include this part in a much improved form.

The treatise proper is preceded by a bibliography covering eighty pages, which includes such books and articles only as are of general scope. Books and articles upon separate topics are to be collected in a section of each chapter in which the topics are considered. The books are classified in two parts: first, books written before 1800; second, books written since 1800. Each part is further classified according to the country in which, or, in the case of modern books, the language in which each book was written. In the case of almost every book a short note is given stating the nature and the scope of the book or something which will give the student unfamiliar with the book some idea of its helpfulness. With the books the names of articles which consider the subject in a general way are given, classified according to the language of the periodical in which they appear. A list of bocks and special periodicals are suggested as desirable for a public law library in America or England, and a

smaller list as necessary for the working library of a lawyer who desires an office library on the subject.

Professor Beale has placed all students of the Conflict of Laws under a debt of gratitude for having included in the part now published the most complete bibliography of general books and articles on the Conflict of Laws to be found in any language, the value of which is greatly enhanced by the author's notes and comments. American students will welcome with especial satisfaction the exhaustive list of works dealing with the Conflict of Laws in Central and South America, which it was exceedingly difficult to secure heretofore. The laborious and difficult task of preparing the bibliography has been executed with great care, even in the smallest details, such as the citing of the foreign titles. Though these titles involve many different languages, only a few errors occur. A few of the books and articles mentioned relate to special topics and should not have appeared, therefore, in the general list e. g., Daireaux, p. xxviii; Haus, p. xxxi; Visscher, p. xxxvii; Puetter, p. xlvi; Sieber, p. xlviii; Woerner, p. xlix; Baisini, p. lii; Buzzati, p. lii. One or two minor omissions may also be noted in passing, such as Ottolenghi, Sulla Funzione e sull' Efficacia delle Norme Interne di Diritto Internazionale Privato, Turin 1913, and International Law Notes, a monthly bulletin of matters of interest to practitioners in private international law, published in London since January, 1916.

Of the treatise itself, two books are now offered which are introductory in their nature. Book I has three chapters: (1) Scope and Name of the Subject (pp. 1-17). (2) History of the Conflict of Laws (pp. 18-61). (3) Current Doctrine on the Conflict of Laws (pp. 62-113). Book II is entitled "Preliminary Consideration of Jurisprudence" and deals in chapter 4 with Law and Jurisdiction (pp. 114-61), and in chapter 5 with Rights (pp. 162-89). The principal criticism to be made of chapter 1 is that it does not set forth the scope of the work with sufficient definiteness. The reader is told to what extent Criminal Law will be dealt with, but nothing is said about International Procedure, Maritime Law, the Law of International Copyright, Trade-marks, and the like. As v. Bar, Meili, and others deal with these topics in general works on the Conflict of Laws, some statement should be made concerning the author's purpose in this regard. The nature of the subject also might be explained more fully, so as to show the relationship of the Conflict of Laws to Municipal Law in the narrower sense, and to International Law.

In a note to section 1 of the treatise Professor Beale contrasts the Conflict of Laws, which deals primarily with the application of laws in space, with the "application of laws in time." According to Professor Beale the latter "has received no name; and though it makes use of similar principles, it is not usually regarded as sufficiently important for separate treatment." This statement is not quite accurate. A learned treatise on the subject has been written by Professor Affolter, who calls it "Inter-temporal law." By others it is called "Transitory Law"; for example, by Professor Cavaglieri (Diritto Internazionale Privato e Diritto Transitorio, 1904).

Chapter 2, entitled "History of the Conflict of Laws," traces the story of the Conflict of Laws from the days of the Roman Empire to the beginning of the nineteenth century. Professor Beale correctly states that notwithstanding the Edict of Caracalla (A. D. 212), which extended Roman citizenship to all inhabitants who were thereby entitled to the enjoyment of the ius civile, local customs long survived and gave rise, for a long time, to questions relating to the Conflict of Laws. It cannot be said, however, that "in the end a considerable body of doctrine (concerning the Conflict of Laws) became embodied in the Corpus Juris," for the number of passages contained therein is surprisingly small. The reason for this is undoubtedly due to the fact, as v. Bar suggests, that the compilers under Justinian were practical men who were not interested in the discussion to be found in the juristic literature concerning a subject which