of Arizona, ran for reëlection, opposed by the plaintiff. The secretary of state canvassed the returns and duly issued to the plaintiff a certificate of election. The defendant, disputing the result of the election, refused to surrender office at the expiration of his term, and instituted statutory contest proceedings. The plaintiff seeks a writ of mandamus to obtain possession of the office and property pertaining thereto, pending the result of the contest. Held, that the plaintiff is entitled to the writ. Campbell v. Hunt, 162 Pac. 882 (Ariz.).

A certificate of election duly executed by the proper authority affords a prima facie title to a public office. See Kerr v. Trego, 47 Pa. St. 292, 296. This may be disputed and the election contested in quo warranto or statutory proceedings. See Frey v. Michie, 68 Mich. 323, 327, 36 N. W. 184, 186. These being the proper actions, it is generally held that the title to office cannot be litigated in mandamus. People ex rel. Wren v. Goetting, 133 N. Y. 569, 30 N. E. 968. See 24 HARV. L. REV. 313. Cf. Pipper v. Carpenter, 122 Mich. 688, 81 N. W. 962. The claimant prima facie entitled may properly invoke this remedy, however, to compel a prior incumbent to surrender possession of the office and its appurtenances. Couch v. State ex rel. Brown, 169 Ind. 269, 82 N. E. 457; State ex rel. Voss v. Quinn, 86 Neb. 758, 126 N. W. 388. There will indeed be no relief while an appeal is pending from a judgment against the plaintiff in quo warranto or contest proceedings. Swartz v. Large, 47 Kan. 304, 27 Pac. 993; Allen v. Robinson, 17 Minn. 113. But if no such judgment has been rendered, the writ of mandamus is granted although other proceedings are pending. People ex rel. Cummings v. Head, 25 Ill. 325; Crowell v. Lambert, 10 Minn. 369. See HIGH, EXTRAORDINARY LEGAL REMEDIES, 3 ed., § 74. The writ does not affect the merits of the ultimate contest, but merely the right to immediate possession. State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296. This result is sound, in view of the importance of possession of an office. For the plaintiff has no adequate remedy, if he must await the result of the more dilatory contest before securing possession. It is, moreover, strongly to the public interest that the candidate legally declared elected should take office at once. Otherwise, a prior incumbent could retain possession in violation of the wishes of the electorate merely by instituting a contest, the settlement of which might be indefinitely delayed. See MCCRARY, ELECTIONS, 4 ed., § 302.

MASTER AND Servant — EMPLOYER'S LIABILITY — ASSAULT BY FELLOW SERVANT. - The defendant retained in his employ a workman known to be vicious, lawless and quarrelsome. This workman murdered the plaintiff's intestate, while both were engaged in the common employment. U. S. COMP. STAT. 1916, §§ 8657-8665, make negligence the basis of an employer's liability. Held, that the plaintiff may not recover. Roebuck v. Atchison, etc. Ry. Co., 162 Pac. 1153 (Kan.).

A master must exercise due care for the safety of his servants in providing a place in which, and appliances with which, to work. McCombs v. Pittsburgh, etc. Ry. Co., 130 Pa. 182, 18 Atl. 613. The master must also, in employing servants, have regard to the safety of the fellow servants. Thus, he is under a duty not to employ, or retain in his employ, workmen whom he knows or should know to be so careless or incompetent in the performance of their duties as to subject their fellows to risk of injury. Baltimore & Ohio R. Co. v. Henthorne, 73 Fed. 634; Laning v. New York, etc. R. Co., 49 N. Y. 521. But the courts generally hold that the employer has no duty to guard against injury caused by an act which is not done in pursuance of the servant's duty. See Palos, etc. Co. v. Benson, 145 Ala. 664, 39 So. 727. Thus the employer has been held not liable for an assault by one servant upon another, committed out of the scope of the offender's duty. Palos, etc. Co. v. Benson, 145 Ala. 664, 39 So. 727; Campbell v. Northern Pacific R. Co., 51 Minn. 488, 53 N. W. 768; Crelly v.

Telephone Co., 84 Kan. 19, 113 Pac. 386. Likewise recovery has been denied where the servant was injured in the course of rough play or "initiation" of fellow-employees. Reeve v. Northern Pacific R. Co., 82 Wash. 268, 144 Pac. 93; Medlin Milling Co. v. Boutwell, 104 Tex. 87, 133 S. W. 1042. But in these cases the master had no reason to expect the harmful act to happen and no reason to expect the servant to be dangerous. In the former case, to hold the master would be to make him absolutely liable; to hold him in the latter case would be to restrict too narrowly the field of available servants. However, it is not putting too great a burden on an employer to subject him to a duty not to employ a servant known to be personally dangerous. Missouri, etc. Ry. Co. v. Day, 104 Tex. 237, 136 S. W. 435. See McNicol's Case, 215 Mass. 497, 500, 102 N. E. 697, 698.

MORTGAGES PRIORITIES PRIORITY OF NOTES SECURED BY THE SAME MORTGAGE. - The holder of four notes, maturing in successive years and secured by one mortgage, assigned the two notes first maturing to the plaintiff and later assigned the other two to the defendant. The plaintiff claims priority in the proceeds of the security. Held, that all the notes share pro rata in the proceeds. Georgia Realty Co. v. Bank of Covington, 91 S. E. 267 (Ga.).

The assignment of a note secured by a mortgage gives to the assignee the protection of the mortgage, although the mortgage itself is not assignable. Romberg v. McCormick, 194 Ill. 205, 210, 62 N. E. 537, 539. But where several notes, secured by the same mortgage, are assigned to different persons, the right of these holders inter se to the mortgage security has been much disputed. Some authorities give priority in order of time of the assignments. Knight v. Ray, 75 Ala. 383; Gordon v. Fitzhugh, 27 Gratt. (Va.) 835. A more common rule gives priority to the holders of the notes first maturing. Flower v. Elwood, 66 Ill. 438; Horn v. Bennett, 135 Ind. 158, 34 N. E. 321. But the weight of authority is in accord with the principal case, making the holders share pro rata in the security regardless of the maturity of their notes or the time of assignment. Perry's Appeal, 22 Pa. St. 43; Studebaker v. McCurgur, 20 Neb. 500, 30 N. W. 686; Orleans Co. Nat. Bank v. Moore, 112 N. Y. 543, 20 N. E. 357. Even under this latter rule, some cases hold that an assignor who retains some of the notes is deferred to his assignee. Appeal of the Fourth Nat. Bank, 123 Pa. St. 473, 16 Atl. 779. Contra, Wilcox v. Allen, 36 Mich. 160. But this holding, if justifiable, is due to the fact that the assignor holds the mortgage in trust for his assignee to the extent of the latter's interest. Snyder v. Parmalee, 80 Vt. 496, 68 Atl. 649. And the same principle might apply with the same result under the earlier assignment or earlier maturity rule. Parkhurst v. Watertown Steam-Engine Co., 107 Ind. 594, 8 N. E. 635. The pro rata rule seems the most equitable, as the mortgage is intended to cover all the notes equally. This rule is also the most satisfactory in that it takes care of the cases which the earlier assignment and earlier maturity rules do not cover, viz., where the assignments of the notes in one case and the maturity in the other come at the same time.

MUNICIPAL CORPORATIONS - ESTOPPEL PUBLIC RIGHTS IN PUBLIC LAND BARRED BY EQUITABLE ESTOPPEL OF THE CITY. · A plat filed in 1882, operating as a statutory dedication of a street terminating on a lake, was accepted by the city; but the street was never opened for public use. In 1900 another plat of the same property was accepted from another party by the city officials. This plat indicated the street as ending short of the water's edge. The defendant, acting in good faith, erected coal docks on a part of the street indicated on the first plat but not on the second, and paid city taxes levied on his property. The city now asserts title to the land. Held, that the city is estopped. City of Superior v. Northwestern Fuel Co., 161 N. W. 9 (Wis.).

While the usual statute of limitations operates against the private interests

of municipal corporations, it is generally held not to apply where public functions are involved. Accordingly city streets, being easements vested in the public, are not subject to the statute. Simplot v. Chicago, etc. Ry. Co., 16 Fed. 350, 361; Heddleston v. Hendricks, 52 Ohio St. 460, 40 N. E. 408. Cf. Boone Cty. v. Burlington, etc. R. Co., 139 U. S. 684; Gregory v. Knight, 50 Mich. 61, 14 N. W. 700. See 2 ELLIOTT, ROADS AND STREETS, 3 ed., § 1188; 17 HARV. L. REV. 273. Sometimes, however, the interest of the individual may be stronger than that of the public. Accordingly, many courts have adopted doctrines of equitable estoppel which, unlike the statute, can take into consideration the merits of the individual case, especially the element of good faith. See DILLON, MUNICIPAL CORPORATIONS, 5 ed., § 1194. Some courts have denied the city's claim upon the ground of long-continued non-user by the public and acquiescence in the adverse user. Schooling v. City of Harrisburg, 42 Ore. 494, 71 Pac. 605. But, though the public may in such cases theoretically know its rights, it does not in fact; and so its inaction is not a representation on which the adverse claimant should rely. Where, however, the public, through its officials, makes affirmative representations, the elements of estoppel may well be present. The difficulty, however, is that the adverse claimant theoretically knows, as one of the public, that the public has title. See 2 ELLIOTT, § 1189. But often he may have no actual notice. It would be sacrificing substance to form, if his technical notice should defeat his right to rely upon the city's positive representations. The argument that, as an indictable trespasser, he has not clean hands falls by the same reasoning. But his claim to equitable relief must be strong. He must have acted bona fide, and have made expensive, permanent improvements. The city must have made some particular representations such as taxation of the property, as in the principal case, so that it would be inequitable for it to assert its title. The test of this in each case, it is submitted, should be whether on all the facts, the city's acts reasonably justified an inference that his title was recognized. Then if the city's acts were within its general authority, the public is estopped. People v. Wiebolt, 233 Ill. 572, 84 N. E. 646; Weber v. Iowa City, 119 Ia. 633, 93 N. W. 637.


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RESTRAINT OF TRADE- CONTRACT NOT TO ENGAGE IN A CERTAIN BUSIThe plaintiff company contracted with five laundry companies in the city of Birmingham, one of which was the defendant, that the latter should announce to their customers that they were acting as collection and delivery agents for the plaintiff company and should collect and deliver soiled goods to the plaintiff and make return deliveries of the cleaned goods. The laundry companies promised in addition to collect only for the plaintiff company and not to go into the dry-cleaning business in the locality. The plaintiff company agreed to pay the laundry companies twenty-five percent of the returns on the dry-cleaning business which they brought in and not to go into the laundry business in the locality. There were other laundry concerns and other dry-cleaning companies operating in this particular commercial community. The defendant company failed to perform and suit was brought to enjoin them from breaking their contract, Held, that the injunction be denied. American Laundry Co. v. E. & W. Dry Cleaning Co., 74 So. 58.

For a discussion of the principles involved, see NOTES, p. 752.

RULE AGAINST PERPETUITIES VALIDITY OF ESTATES EXPECTANT UPON ESTATES TOO REMOTE. - A will bequeathed residuary personalty to trustees in trust to pay the interest to three persons for life with cross remainders, and "after the death of the three" to pay over and divide the whole among several other persons. It is provided in N. Y. CONSOL. LAWS, ch. 41, § 11, that an attempt to suspend the absolute ownership of personalty during more than two lives in being is void; and this renders invalid the trust during the

three lives. There is an application to determine the validity of the ultimate gift over. Held, that it is valid and accelerated. In re McQueen's Will, 163 N. Y. Supp. 287.

In the principal case the direction to pay "after the death" of the life tenant, literally construed, would make the gift over contingent upon the survival of the legatees. But this phrase has become a common one to introduce vested remainders. Napper v. Sanders, Hut. 118. See LEAKE, PROPERTY IN LAND, 2 ed., 245. In general where a gift is made by a direction to divide and pay at a future time, the gift is considered contingent. See Fulton Trust Co. v. Phillips, 218 N. Y. 573, 583, 113 N. E. 558, 560. But where, as in the principal case, the postponement is wholly for the benefit of the estate in order to let in intervening life estates, the deferring of payment does not prevent the vesting of the legacy. Packham v. Gregory, 4 Hare 396; Evans v. Scott, 1 H. L. Cas. 43, 57; Fuller v. Winthrop, 85 Mass. 51, 60. In the principal case there is no gift over, if the remainderman fails to survive the life tenant. Hence construing the bequest as contingent would result in a partial intestacy, obviously contrary to the purpose of a residuary clause. Thus at common law, the remainder in the principal case would be vested. And under the New York statutes, it is clear that the legatees have a vested interest. See 4 N. Y. CONSOL. LAWS 4164, 4935. England holds that, where there is a vested estate expectant upon a remote gift and this vested estate is a life estate, it is void. Beard v. Westcott, 5 B. & A. 801. See MARSDEN, RULE AGAINST PERPETUITIES, 288. The testator is held to intend that if part fails, all should fail. See Monypenny v. Dering, 2 De G., M. & G. 145, 182. The intimation in this country is that otherwise valid gifts of whatever dignity are good, unless to allow them to stand would really involve making a new will for the testator. See Barrett v. Barrett, 255 Ill. 332, 338, 99 N. E. 625, 627. It is submitted that the valid limitations should be entirely unaffected by the void. See GRAY, RULE AGAINST PERPETUITIES, 3 ed., § 252 et seq.; I JARMAN, WILLS, 6 ed., 352; LEWIS, LAW OF PERPETUITY, 661; 29 HARV. L. REV. 341. It seems proper, therefore, to hold the ultimate remainder in the principal case good, especially since there is nothing in the will to show any intent of the testator to the contrary. And payment of the valid bequest should be accelerated since a vested remainder is, by definition, ready to take effect whenever and however the preceding estate terminates. Cf. Greet v. Greet, 5 Beav. 123; CHALLIS, REAL PROPERTY, 2 ed., 179.

STATUTES STATUTORY PRINCIPLES IN THE COMMON LAW. The steamship Amerika negligently ran into and sank a submarine of the English navy. The English government sues, among other things, for the pensions due the drowned seamen. Lord Campbell's Act and the English Workmen's Compensation Act have allowed actions for death in many cases but not specifically for the present situation. Held, that there can be no recovery for death unless the case falls within the express language of the statutes. Admiralty Commissioners v. S. S. Amerika, [1917] A. C. 38.

For a discussion of the principles involved, see NOTES, p. 742.

TRIAL PROCEEDINGS IN CAMERA RIGHT OF COURT MARTIAL TO HEAR CRIMINAL CASE IN CAMERA. An Irish rebel was tried at a court martial. The trial was held in camera, because it was feared that admission of the public might result in disturbances or intimidation of the witnesses. Rule of Procedure 119 c provides that hearings must be held with open doors. A writ of habeas corpus is brought on the ground that the court had no jurisdiction to try the case. Held, that the writ be dismissed. King v. Governor of Lewes Prison, 61 Sol. J. 294.

It is the immemorial usage of the common law to try all prisoners in open court, to which spectators are admitted. I BISHOP, CRIM. PROC., § 957. And

it is no doubt owing to the prevalence of this usage and to the habits of thought resulting therefrom that there is such a dearth of judicial decisions upon the question of the principal case. But while the accused has the right to a public trial, the court has the power in proper cases to put a reasonable limit to the number of persons that may be admitted to the courtroom and to exclude those whose presence and conduct tend to interfere with the due and orderly progress of the trial. People v. Swafford, 65 Cal. 223, 3 Pac. 809; State v. Brooks, 92 Mo. 542, 5 S. W. 257. See COOLEY, CONSTITUTIONAL LIMITATIONS, 6 ed., 379. And the right of a court to try a case with closed doors has been recognized in a limited class of cases; dealing with lunacy, wards of the court, and secret processes. Ogle v. Brandling, 2 Russ. & M. 688; Mellor v. Thompson, 31 Ch. D. 55. But this power has been strictly limited to cases where it would not be possible to administer justice in open court. See Scott v. Scott, [1913] A. C. 417, 445; 27 HARV. L. REV. 88. In the United States the constitutional provision for a speedy and public trial has been very strictly enforced. People v. Murray, 89 Mich. 276, 50 N. W. 995; People v. Hartman, 103 Cal. 242, 37 Pac. 153. The principal case seems to fall clearly within the exception as laid down in Scott v. Scott, since a public hearing would have endangered the administration of justice, and the English rules of courts martial expressly provide that trials may be held with closed doors. MANUAL for Courts MARTIAL FOR 1917, § 92.

WILLS CONSTRUCTION GIFT TO A CLASS ON A CONTINGENCY: CONTINGENCY NOT IMPORTED INTO DETERMINATION OF THE CLASS. - A will bequeathed a fund to the testator's daughter for life, with the provision that upon her death "leaving issue her surviving" her share should be divided between "the issue" of the said daughter on their severally attaining their respective ages of twenty-one. There was a gift over if the daughter died without leaving issue surviving her. The daughter died, predeceased by children who had attained twenty-one, and survived by others who also attained twenty-one. The question was whether the representatives of the deceased children took. Held, that they did. In re Walker, Dunkerly v. Hewerdine, [1917] 1 Ch. 38.

As a general rule of the construction of wills, if there is a gift to a class on a contingency, the time of the happening of the contingency is not imported into the determination of the class. Hickling v. Fair, [1899] A. C. 15. See THEOBALD, WILLS, 7 ed., 593; 2 JARMAN, WILLS, 6 ed., 1390. So, if a gift is made to children who reach twenty-one on the contingency that the parent die leaving issue her surviving, and the contingency occurs, all of the children who reach twenty-one at any time will take, and not those only who survived. Boulton v. Beard, 3 D. M. & G. 608. The suggestion has been made that the rule is inapplicable where there was a gift over on failure of the contingency. See THEOBALD, WILLS, 7 ed., 593. Thus, where in the above case it is further provided that, if the parent die leaving no issue surviving, there will be a gift over, and the parent dies leaving issue, only those children who survive would take. See Wilson v. Mount, 19 Beav. 292. No reason appears for such a limitation on the rule: the gift over merely provides against a possible intestacy. So the principal case seems right in holding that here, too, all the children who fall within the primary meaning of the words describing the class shall take, and not only those who survive. In re Orlebar's Settlement Trusts, L. R. 20 Eq. 711. The principal interest in the case lies in the good illustration which it affords of the ease with which the fixed English rules of general application solve difficult questions of construction in wills in which the testator expressed no intention with regard to the precise event which actually happened. For a full treatment of this matter, see 30 HARV. L. REV. 372.

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