C is such that B, as heir, would be entitled thereto, B cannot take both his legacy and C's intended portion, but must elect between the two. Van Dyke's Appeal, 60 Pa. St. 481. See 23 HARV. L. REV. 138. Where the gift to C is invalid, by the lex domicilii, there is no will and consequently no election. Hearle v. Greenbank, 1 Ves. Sen. 298, 306; Sheddon v. Goodrich, 8 Ves. Jr. 481. See Boughton v. Boughton, 2 Ves. Sen. 12, 14. If, however, there is an express condition to elect, it is enforced. Boughton v. Boughton, supra. But where it is inoperative because of lex rei sitae of a foreign jurisdiction election is applied. Dundas v. Dundas, 2 Dow & Cl. 349; Brodie v. Barry, 2 Ves. & Beav. 127; Van Dyke's Appeal, supra. See 2 DICEY, CONFLICT OF LAWS, 2 ed., 778, 779. The election, however, when made, does not affect the title to the foreign realty. Bolton v. Bolton, 29 Ark. 418; Ramels v. Rowe, 92 C. C. A. 177, 166 Fed. 425; Palmer v. Voorhis, 35 Barb. (N. Y.) 479. See STORY, CONFLICT OF LAWS, 8 ed., § 448. Yet it is generally enforced by the jurisdiction of the situs. Van Steenwyck v. Washburn, 59 Wis. 483, 17 N. W. 289; Martin v. Battey, 87 Kan. 582, 125 Pac. 88; Wilson v. Cox, 49 Miss. 538. Contra, Ramels v. Rowe, supra. Some suggest that the doctrine rests simply on equitable principles. See 30 HARV. L. REV. 649; I JARMAN, WILLS, 6 ed., 534; I POMEROY, EQUITY, 3 ed., § 465. But see Cooper v. Cooper, L. R. 7 H. L. 53, 70. This view would not change the result in the principal case, for in an analogous situation, where B's property was given to C, B had to elect. Noys v. Mordant, 2 Vern. 581; Cooper v. Cooper, supra; Havens v. Sackett, 15 N. Y. 365. But the prevailing view is that it is based on the presumed intention of the testator. Whistler v. Webster, 2 Ves. Jr. 366; Jackson v. Bevins, 74 Conn. 96, 49 Atl. 899; Cooper v. Cooper, supra; Havens v. Sackett, supra; Martin v. Battey, supra. See Haynes, "Outlines of Equity," 262 et seq., 23 HARV. L. REV. 138. And it seems, as is said in the principal case, that election is merely the application of the lex domicilii imposing conditions on the receipt of the legacy over which it has power. Thus it is a mere rule of construction, enforcing the presumed intention of the testator.

CONTRACTS CONTRACTS FOR THE BENEFIT OF A THIRD PERSON - CHARTERPARTIES - RIGHT OF CHARTERERS TO RECOVER COMMISSION FROM SHIPOWNERS AS TRUSTEES FOR BROKERS. A clause in a charterparty provided that a three per cent commission on the amount of hire should be paid to the brokers, "ship lost or not lost." No hire was earned, since the vessel was taken over by the French government. Held, that the charterers could recover the commission as trustees for the brokers. Walford v. Les Affréteurs Réunis Société Anonyme, [1918] 2 K. B. 498.

The English courts have in the past been obliged to stretch the law of trusts in order to avoid the consequences of their doctrine, which prevails in a small minority of American jurisdictions, that a person not a party to a contract cannot sue on a promise made for his benefit. Moore v. Darton, 4 DeG. & S. 517. See 15 HARV. L. REV. 767, 775. Various efforts have been made to evade the rule. See Mellen v. Whipple, 1 Gray (Mass.) 317, 323. The device of an implied trust has been employed in a number of cases. Swan v. Snow, 11 Allen (Mass.) 224; Munroe v. Fireman's Relief Association, 19 R. I. 363, 34 Atl. 149; Lloyds v. Harper, 16 Ch. D. 290; In re Flavell, 25 Ch. D. 89; contra, West v. Houghton, 4 C. P. D. 197. See Cleaver v. Mutual Reserve Fund, [1892] 1 Q. B. 147, 152. The principal case follows a similar decision in regard to charter parties handed down without opinion in 1853. Robertson v. Wait, 8 Exch. 299. Perhaps most of the English cases can be reconciled in result, if not on principle, on the ground that where a business relation exists between promisee and beneficiary an agreement by the promisee to act as trustee of his technical right of action can be implied, but not in cases of pure gifts. Certainly there is strong reason in business contracts to find some way of enforcement. The whole

machinery, however, is obviously fictitious. If the fiction is to be employed, there seems to be no good reason why it should not be applied to all contracts for the sole benefit of a third person. The correct and frank method would be to give the sole beneficiary a right of action in his own name. The New York court recently threw off the old shackles. Seaver v. Ransom, Ct. App. (N. Y.), October 1, 1918. See 32 HARV. L. REV. 82. It is hoped that the English courts will have the courage to do as much.

CORPORATIONS-Ultra Vires: WHAT ACTS ARE Ultra Vires - ILL-DEFINED OBJECTS OF INCORPORATION. - The memorandum of association of a company contained an objects clause enabling the company to carry on almost every conceivable kind of business which such an organization could adopt. Escape from liability was sought for an act done in the name of the company by its managers on the ground that the act was ultra vires. Held, that, under such a memorandum, the act was not ultra vires. Cotman v. Brougham, [1918] A. C. 514.

For a discussion of this case, see NOTES, page 279.

EQUITABLE SERVITUDES COVENANT BY ASSIGNEE OF COPYRIGHT TO PAY ROYALTIES - VENDOR'S LIEN. - Assignee of a copyright covenanted to pay certain royalties and to assign only to successors in business subject to the terms of the deed assigning the copyright. In an action by the covenantee against a subsequent assignee of the copyright with notice of the covenant, held, that the subsequent assignee was under no contractual liability to pay royalties; that the original assignment and covenant therein did not make the royalties a charge upon the copyright, and that as the original deed of assignment did not make the royalties a part of the purchase money it did not have the effect of reserving a vendor's lien for unpaid royalties. Barker v. Stickney, [1918] 2 K. B. 356.

For further discussion of the principles involved, see NOTES, page 278.

EVIDENCE - PRIVILEGED COMMUNICATIONS ATTORNEY AND CLIENTCOMMUNICATION MADE UNDER MISTAKE TO ATTORNEY OF OPPOSITE PARTY. Shortly after a highway accident, the solicitor of the prospective defendant called on the injured party and secured from her a signed statement in regard to the collision. Although there was no fraud, the plaintiff signed in the belief that she was making the statement to her own solicitor. Plaintiff applied for discovery. Held, that the document was privileged. Feuerheerd v. London Omnibus Co., [1918] 2 K. B. 565; 53 L. J. 332.

Communications between attorneys and their clients in relation to legal interests have long been privileged. Minet v. Morgan, L. R. 8 Ch. 361; Crosby v. Berger, 4 Edw. (N. Y.) 254 (affirmed in 11 Paige, 377). This means that the communication cannot be used as evidence without the consent of the client. See 4 WIGMORE, EVIDENCE, § 2324. The modern ground for the rule is the need of freedom in consultation with attorneys. Hatton v. Robinson, 14 Pick. (Mass.) 416; Wade v. Ridley, 87 Me. 368, 32 Atl. 975. See 4 WIGMORE, EVIDENCE, 2291. On the same principle the client should not bear the dangerous burden of using more than a due precaution in selecting his attorney. Hence the privilege has been properly extended to cases of bona fide belief in the alleged attorney's professional status. People v. Barker, 60 Mich. 277, 27 N. W. 539; State v. Russell, 83 Wis. 330, 53 N. W. 441; Rex v. Choney, 17 Manitoba, 467. See 4 WIGMORE, EVIDENCE, §§ 2302, 2310. However, a communication made to a solicitor known to be acting as counsel for the opposite party has been rightly held not privileged. Tobakin v. Dublin Tramways Co., [1905] 2 Ir. Rep. 58. In former cases the communication was procured

by the fraud of the opposing counsel, but the policy of the privilege clearly extends to the principal case. By the denial of discovery on the ground of privilege the plaintiff is assured that the statement cannot be used as evidence against her and is thus given all needed protection.

EVIDENCE - RES GESTAE - DECLARATIONS OF AGENT - ADMISSIBILITY IN CORROBORATION. - The defendant's chauffeur struck and killed plaintiff's son. Ten or fifteen minutes later, apart from the scene of the accident, the chauffeur, in reply to a question, said he was driving on a mission for his employer. This declaration was admitted in evidence. Held, the declaration should have been excluded. Frank v. Wright, 205 S. W. 434 (Tenn.).

Declarations of an alleged agent are not competent against the alleged principal to prove the fact of agency, because there is no authority to make such admissions. Yoshimi & Co. v. U. S. Express Co., 78 N. J. L. 281, 73 Atl. 45; Ennis v. Wright, 217 Mass. 40, 104 N. E. 430. But if the agency is otherwise prima facie proved, they become admissible in corroboration. Mullen v. Quinlan & Co., 195 N. Y. 109, 87 N. E. 1078; Lemcke v. Funk & Co., 78 Wash. 460, 139 Pac. 234. As in the principal case, where the defendant owned the automobile, and where the driver was regularly employed as a chauffeur, the fact of agency on this occasion is presumed. Stewart v. Baruch, 103 App. Div. 577, 93 N. Y. Supp. 161; Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527. See Ludberg v. Barghoorn, 73 Wash. 476, 481, 131 Pac. 1165, 1167. But even if the agency is otherwise prima facie proved, the declarations are admissible only when they constitute a part of the res gestae. Lowden v. Wilson, 233 Ill. 340, 84 N. E. 245; U. S. Express Co. v. Rawson, 106 Ind. 215, 6 N. E. 337. By the better view statements are considered part of the res gestae if they are spontaneous utterances and made so soon after the act in issue as to negative deliberation and design. See 31 HARV. L. REV. 801. On this point the instant case is sound.

INSURANCE - WAIVER OF PRESUMPTION Of Death. A by-law of the defendant insurance company provided that long-continued absence would not be regarded as evidence of death or raise a presumption thereof. Plaintiff relied on the presumption raised by seven years' absence. Held, the effort to force new rules of evidence on the court was void. Gaffney v. Royal Neighbors of America, 174 Pac. 1014 (Idaho).

Formerly courts held invalid agreements that tended to deprive them of their jurisdiction. Horton v. Sayer, 4 H. & N. 643; Hall v. People's Mutual Fire Insurance Co., 6 Gray (Mass.) 185; Muldrow v. Norris, 2 Cal. 74. Though such is no longer true, present-day courts do hold certain contracts invalid on the grounds, that where there is a relationship between parties, one of whom is not an absolutely free agent under nineteenth-century economic theory, the courts should protect the weaker party by limiting the freedom of contract with the stronger. Thus, an agreement in a lease giving the landlord power to confess judgment in an action of forcible detainer is void. French v. Willer, 126 Ill. 611, 18 N. E. 811. On similar principles the law limits the defenses of surety companies. Segari v. Mezzei, 116 La. 1026, 41 So. 245. Legislatures, with due regard to corporate interests, have prescribed such rules for the conduct of the business of insurance as will best protect the interests of the insured. Commonwealth v. Vrooman, 164 Pa. St. 306, 30 Atl. 217; N. Y. Life Insurance Co. v. Hardison, 199 Mass. 190, 198, 85 N. E. 410, 413; Equitable Insurance Co. v. Commonwealth, 113 Ky. 126, 67 S. W. 388; Orient Insurance Co. v. Daggs, 172 U. S. 557. It is doubtful, however, whether contracts made in accord with the by-law in the principal case give the insurance companies such undue advantages over individuals as to render the by-law void as against public policy.

RE

MUNICIPAL CORPORATIONS APPOINTMENT TO OFFICE · APPROVAL CONSIDERATION. - A statute provided that the members of the Board of Education were to be appointed by the mayor, with the approval of the city council. Pursuant to this provision the mayor appointed, and the city council approved, certain persons as members. Subsequently, the city council, reconsidering its vote of approval, disapproved the appointments. Held, that there had been no valid appointment to office as the ordinary parliamentary rules, allowing the city council to reconsider its action, applied. People v. Davis, 120 N. E. 326 (Ill.).

An appointment to office is completed when the last act required has been performed. State v. Barbour, 53 Conn. 76, 22 Atl. 686; Draper v. State, 175 Ala. 547, 57 So. 772; Marbury v. Madison, 1 Cranch (U. S.) 137. In the principal case the last act was the approval by the city council. People v. Bissel, 49 Cal. 407. An appointment to office by whomsoever made is intrinsically an executive act, and the city council in appointing acts in an executive capacity. State v. Wagner, 170 Ind. 144, 82 N. E. 466; State v. Longdon, 68 Conn. 519, 37 Atl. 383; Haight v. Love, 39 N. J. L. 14; Achley's Case, 4 Abb. Pr. (N. Y.) 35; State v. Barbour, 53 Conn. 76, 22 Atl. 686. And it is submitted that approval of an appointment, though by a legislative body, being but one of the steps required for a valid appointment, is also an executive act. Accordingly, by approving the appointment the city council has exercised and exhausted its power, and the appointee is seised of the office. In re Fitzgerald, 88 App. Div. (N. Y.) 434, 82 N. Y. S. 811. Contra, Dust v. Oakman, 126 Mich. 717, 86 N. W. 151. Thus, being vested with the office, reconsideration of the approval is ineffectual, and the appointee remains seised of the office until removed by a body having the power of removal. In re Fitzgerald, supra; Achley's Case, supra; Haight v. Love, supra; Marbury v. Madison, 1 Cranch (U. S.) 137, 162. See 2 DILLON, MUNICIPAL CORPORATIONS, 5 ed., § 466.

MUNICIPAL CORPORATIONS COMPENSATION FOR SPECIAL SERVICES. - The plaintiff's fire-department was summoned to prevent the outbreak of fire in defendant's acid plant, the roof of which had caved in. The immediate danger passed, defendant requested that several men be supplied to watch the premises temporarily. Plaintiff sues for compensation for the services of the firedepartment and of the special watchmen. Held, it may recover for the latter, but not the former. Grays Urban District Council v. Grays Chemical Works, Limited, [1918] 2 K. B. 461.

For a discussion of this case, see NOTES, page 282.

MUNICIPAL CORPORATIONS MAINTENANCE OF RAILWAY CROSSINGS SURRENDER OF POLICE POWER. The complainant railway, being the owner of a right of way in the city, granted to the city the right to extend a street over the complainant's tracks, in consideration of which the city agreed that a crossing should be maintained without expense to the railway company. Subsequently, the city passed an ordinance requiring the railway company to bear the expense by operating safety gates at this crossing. To a bill by the complainant which seeks to enjoin the enforcement of this ordinance, the city demurs, alleging that the contract amounts to a surrender of the city's police power and so is not binding. Held, that the demurrer be overruled. Florida East Coast R. Co. v. City of Miami, 79 So. 682 (Fla.).

It is well settled that a city cannot by contract limit or give up the exercise of any police power delegated to it by the state. Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885; State v. Laclede Gaslight Co., 102 Mo. 472, 14 S. W. 974; City of Chicago v. Chicago Union Traction Co., 199 Ill. 259, 65 N. E. 243. See 16 HARV. L. REV. 436. A common illustration of the exercise of such power is found in enactments by city legislative bodies requiring that railway com

panies shall without compensation provide safety appliances at street crossings. Delaware, etc. R. Co. v. East Orange, 41 N. J. L. 127; Village of Clara City v. Great Northern R. Co., 130 Minn. 480, 153 N. W. 879; Cincinnati, I. &W. R. Co. v. City of Connersville, 218 U. S. 336. See 3 ABBOTT, MUNICIPAL CORPORATIONS, § 854. If at the time in question there is a preëxisting right on the part of the city to require the railway company to maintain the crossing without compensation, an agreement by which the city gives up that right is obviously invalid. State v. Great Northern R. Co., 134 Minn. 249, 158 N. W. 972; Northern Pacific R. Co. v. Minnesota, 208 U. S. 583. But in the principal case the city had no preëxisting right to give up. The railroad owned the land and there was no street over it. Not until the railroad granted to the city the right to open a street over its property did the city acquire any police power over the crossing. State v. Chicago, St. P., M. & O. R. Co., 85 Minn. 416, 89 N. W. 1. Since, therefore, the contract with the railway company was not a surrender of the city's police power, the subsequent ordinance in violation thereof was null and void.

NEGLIGENCE - CHARITABLE CORPORATION-LIABILITY OF HOSPITAL TO PAY PATIENT FOR NEGLIGENCE OF ITS SERVANTS. Plaintiff's intestate was confined in the hospital of defendant, a charitable corporation without capital stock and paying no dividends. Owing to insufficient guarding, he jumped from a window in a delirium and was killed. He paid fifteen dollars a week for his care. Held, that defendant was not liable for the negligence of its servants. Mikota v. Sisters of Mercy, 168 N. W. (Iowa) 219.

Where the injured person was wholly a recipient of the charity, the charitable funds are generally not chargeable with damages for the torts of servants. Abston v. Waldon Academy, 118 Tenn. 25, 102 S. W. 351. Contra, Donaldson v. General Public Hospital, 30 New Bruns. 279. Where the injured person paid for his care the institution is still immune. Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42; Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909. Contra, Mersey Docks v. Gibbs, 1 H. L. 93; Glavin v. Rhode Island Hospital, 12 R. I. 411. But where the plaintiff was not a recipient of the charitable services, liability has often been imposed. Bruce v. Central Methodist Episcopal Church, 147 Mich. 230, 110 N. W. 951; Gamble v. Vanderbilt University, 138 Tenn. 616; 200 S. W. 510 (1918). In support of the rule of non-liability it is said that the trust funds must not be diverted to pay such claims. See Fire Insurance Patrol v. Boyd, 120 Pa. 624, 647, 15 Atl. 553, 557. But see 31 HARV. L. REV. 481. The cases imposing liability in favor of persons not recipients of the charity are inconsistent with this reasoning. Some courts base non-liability on an implied agreement not to hold the institution liable. See Powers v. Mass. Homeopathic Hospital, 109 Fed. 294, 303. This seems fictitious, especially where the patient pays. The question turns upon the policy behind the rule of respondeat superior. It is said that one who employs another to do an act for his benefit should bear the risk of injury therefrom to third persons. See Hall v. Smith, 2 Bing. 156, 160; Hearns v. Waterbury Hospital, 66 Conn. 93, 125, 33 Atl. 595, 604. But "benefit" here should mean the furtherance of an enterprise in which one is engaged. A strong additional reason lies in the need of liability in order to secure careful management. See 31 HARV. L. REV. 482. Charitable institutions form no exception.

--

NEGLIGENCE -PROXIMATE CAUSATION- THE INTERVENTION OF AN ILLEGAL ACT THE LUSITANIA. The British passenger-carrying merchantman, Lusitania, sailed from New York for Liverpool with the knowledge that Germany had declared a submarine blockade of the waters surrounding England and Ireland. While at sea numerous wireless advices were received from the British Admiralty as to the activities and location of submarines,