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when the person interpreted is an opposing party. Since the latter has availed himself of this method of communication, the interpreter is regarded as an agent and his statements are received as admissions. Miller v. Lathrop, 50 Minn. 91, 52 N. W. 274. See 1 WIGMORE, EVIDENCE, 8668. Accordingly anyone who has heard a conversation through an interpreter between a third person and one party to a suit may, as a witness of the other party, testify to the whole conversation, although he understands only the language of the third person. Commonwealth v. Vose, 157 Mass. 393, 32 N. E. 355; Meacham v. State, 45 Fla. 71, 33 So. 983. This view that the interpretation is an admission of the interpreted party would of course not render admissible evidence of the interpretation of a third person's statements or of the statements of the party offering the evidence. Nor would it admit evidence of the interpretation of the opposing party where there was no actual agency. Yet a fictitious sort of agency has been raised to admit this evidence where the facts do not establish an actual agency. People v. Randazzio, 194 N. Y. 147, 87 N. E. 112. It might be better to make a frank exception to the hearsay rule on the grounds of practical convenience and admit evidence of the interpretation of a statement, wherever evidence of the statement itself is admissible.

INJUNCTIONS Acts RESTRAINED SUITS AGAINST VENDEES OF A PATENT INFRINGER. - The plaintiff is an established manufacturer of wireless apparatus, and the defendant a competitor just starting in the business. The plaintiff brings suit against defendant for infringement of patents, seeking an accounting of profits and assessing of damages. The plaintiff then starts three other similar suits against defendant's vendees. The defendant files a petition alleging that the plaintiff is about to bring many more such suits in widely scattered places, and that unless relief be granted the defendant's business will be ruined. The defendant prays for a temporary injunction against pending and future suits involving vendees until the “parent” suit against defendant is settled. Held, that the bringing of future suits will be enjoined upon the filing of a bond by the defendant to secure payment to the plaintiff in case the latter succeeds in the "parent” suit. Marconi Wireless Tel. Co. v. Kitbourne & Clark Mfg. Co., 235 Fed. 719.

If suits were maliciously brought to ruin the defendant's business, without belief in the validity of the patent or the fact of infringement, there would be an abuse of a legal right and an injunction should follow. See Emack v. Kane, 34 Fed. 46. But even if the suits were brought in good faith the plaintiff should be enjoined. It is true that where a patentee is suing joint tortfeasors in separate suits for infringement, one defendant cannot stay the prosecution of the other suits without showing injury to himself. See Sherman, Clay & Co. v. Searchlight Horn Co., 225 Fed. 497. Though in certain cases all defendants by acting together might secure a settlement of the issue in one suit through a bill of peace. See Foxwell v. Webster, 4 De G., J. & S. 77. But when, as in the principal case, one defendant is a seller and the other defendants are his customers, the seller is under a moral duty to defend his customers' suits, and is injured directly in his business. Wherefore equity will enjoin this multiplicity of suits. Commercial Acetylene Co. V. Avery, etc. Co., 159 Fed. 935; Stebler v. Riverside, etc. Ass'n, 214 Fed. 550. The balance of convenience for the issuance of such injunction is clear. The injury is certainly irreparable. Further, there is a public interest against allowing the courts to be filled with useless suits. See Ide v. Ball Engine Co., 31 Fed. 901, 904. And the defendant cannot be said to have brought the injury upon himself by delaying the "parent” suit. Cf. Kryptok Co. v. Stead Lens Co., 190 Fed. 767. Nor is the plaintiff deprived of any substantial right. For a decree for profits and damages against defendant, when satisfied, will give the vendees all rights as to the machines involved in the decree. Stebler v. Riverside, etc. Ass'n, 214 Fed. 550. While if the case against the defendant fails, the plaintiff cannot sue the defendant's vendees. Kessler v. Eldred, 206 U. S. 285. Though equity will therefore enjoin future suits, yet, on grounds of comity, the court is reluctant to interfere with suits already pending. Kelley v. Ypsilanti, etc. Co., 44 Fed. 19.

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INSURANCE CONSTRUCTION OF PARTICULAR WORDS AND PHRASES IN STANDARD FORMS - “SOLE AND UNCONDITIONAL OWNERSHIP.” – The insured, a boat-builder, agreed to build a boat, the buyer to advance sums of money as the work progressed. In the event of the completion of the boat being prevented, “all materials bought for the boat” were “to belong” to the buyer and he was to “own an interest in the boat shop" amounting to the excess of moneys paid over the cost of the materials. While the boat was in process of construction, the builder insured the property under a standard policy which was to be void if the insured's interest was other than “sole and unconditional ownership.” The boat, when nearly completed, was destroyed by fire. Held, that the insured can recover on the policy. Lloyd v. North British & Mercantile Ins. Co., 161 N. Y. Supp. 271 (App. Div.).

An insurance policy with the standard clause of “unconditional ownership” is void if the legal title, or even the equitable ownership, of the property is not in the insured when the policy is executed. Skinner, etc. Co. v. Houghton, 92 Md. 68, 48 Atl. 85; Hamilton v. Dwelling House Ins. Co., 98 Mich. 535, 57 N. W. 735; Imperial Fire Ins. Co. v. Dunham, 117 Pa. St. 460, 12 Atl. 668. Now according to the English decisions, under a contract like that in the principal case, the legal title to the boat passes to the buyer while it is being built, pari passu, with the payment of installments. Clarke v. Spence, 4 A. & E. 448; Wood v. Bell, 5 E. & B. 772. But see Reid v. Macbeth, (1904) A. C. 223. But the American cases, following the more logical view, have uniformly held that under such a contract legal title passes only upon the appropriation of the completed boat to the buyer. Clarkson v. Stevens, 106 U. S. 505; Wright v. Tetlow, 99 Mass. 397; Andrews v. Durant, 11 N. Y. 35. See WILLISTON, SALES, § 275. The question then arises whether the clause in the contract, that title to the materials shall pass to the buyer if the completion of the boat is prevented, can divest the owner of “unconditional ownership.” That it is possible to create by an inter vivos transaction a future estate in a chattel personal, if such is the intention of the parties, would seem to be established. See GRAY, RULE AGAINST PERPETUITIES, 3 ed., $ 854. A fortiori, an executory estate by way of a conditional limitation must be possible. Yet such is a property interest and in conflict to "unconditional ownership.' But that effect is not conceivable in the principal case, for undoubtedly at the time of the making of the contract the title to the chattels in question was not yet in the grantor. Obviously no equitable title could pass, when the grantor did become the owner, on a principle somewhat akin to Holroyd v. Marshall, for the condition precedent to the vendee getting a right was not fulfilled until the goods were destroyed. In any case it is probable that equity looking at the substance of the agreement would decide that as, after all, the vendee was only seeking security for his advances, any right he might acquire in the property would be in the nature of a lien, in spite of the contrary terminology of the contract. Cf. Hurley v. Atchison, etc. Ry. Co., 213 U. S. 126; Cooper v. Brock, 41 Mich. 488, 2 N. W.660; Albert v. Van Frank, 87 Mo. App. 511. But it is well settled that a mere lien or incumbrance on the property is not violative of the "unconditional owner" clause in an insurance policy. Dolliver v. St. Joseph, etc. Ins. Co., 128 Mass. 315; Carrigan v. Lycoming Fire Ins. Co., 53 Vt. 418. See 1 MAY, INSURANCE, 4 ed., § 287.

INTERSTATE COMMERCE - POWER OF THE COMMISSION TO REQUIRE TANK Cars. — The Interstate Commerce Commission ordered the Pennsylvania Railroad to furnish tank cars in sufficient numbers to transport a complainant's

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shipments of oil. The railroad brought suit to enjoin this order and a federal court issued the writ. Held, that the order was ultra vires, and the injunction was properly issued. United States v. Pennsylvania R. Co., U. S. Sup. Ct., Oct. Term, 1916, Nos. 340 and 341.

For a discussion of this case, see NOTES, P. 381.

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INTERSTATE COMMERCE - RECOVERY IN STATE COURT FOR INDIRECT DAMAGE TO BUSINESS DUE TO ILLEGAL OVERCHARGE — FEDERAL REMEDY EXCLUSIVE. —The defendant railroad, in interstate business, collected from the plaintiff a charge in excess of that provided for by the Interstate Commerce Commission. As reparation therefore, the commission had ordered the railroad to pay the plaintiff $6198, which was done. The present action is brought in a Kentucky court under the common law to recover for additional damage done the plaintiff's business as a result of the overcharge. Held, that the plaintiff cannot recover. Louisville, etc. R. Co. v. Ohio Valley Tie Co., U. S. Sup. Ct., Oct. Term, 1916, No. 66.

It is axiomatic that where Congress, under the power reserved to it in the federal Constitution, legislates in regulation of interstate commerce, the laws of the several states covering the same field, whether formally abrogated or not, cease to have any force. See Gibbons v. Ogden, 9 Wheat. (U.S.) 1,210; Missouri, etc. Ry. Co. v. Haber, 169 U. S. 613, 626; Reid v. Colorado, 187 U. S. 137, 146. The sole question presented by the principal case is whether or not Congress has by the Interstate Commerce Act taken over the entire field of relief for violations of that Act, or has provided merely for the refunding of the overcharge and certain penalties, leaving to the several states the matter of redress for general damage resulting to the plaintiff's business. The Supreme Court of Kentucky took the latter view. Louisville, etc. R. Co. v. Ohio Valley Tie Co., 161 Ky. 212, 170 S. W. 633. By § 8 of the Act it is provided that in case of a violation of its provisions "such common carrier shall be liable . . . for the full amount of damages sustained in consequence of any such violation.” And § 9 provides that the remedy is to be sought before the Commission or a federal court. So it has been held that the Commission has jurisdiction to give whatever damage the plaintiff has actually suffered. Pennsylvania R. Co. v. International Coal Mining Co., 230 U. S. 184, 202, 203; Meeker v. Lehigh Valley Coal Mining Co., 236 U. S. 412, 429. And the Act, and not the common law, determines the extent of the damages. Pennsylvania R. Co. v. Clark Brothers Coal Mining Co., 238 U. S. 456, 472. And § 16 further provides that in case an order by the Commission to pay money remains unpaid, suit thereon may be brought in a state court, inferentially declaring that suit would not lie where the order had been performed. These sections seem to indicate a clear purpose by Congress to commit to the Commission and federal courts the entire field of redress for violations of the Act.

JUDGMENTS RES JUDICATA CRIMINAL LAW – FORMER JEOPARDY – JUDGMENT ON PLEADING A BAR TO SECOND PROSECUTION. — A defendant, indicted for conspiracy to violate the Federal Bankruptcy Act, pleaded the special statute of limitations provided in that act. The plea was sustained. A later decision, in other proceedings, took the offense of conspiracy outside the operation of this special bar. A second indictment being brought, the defendant pleaded in bar the earlier judgment in his favor. The lower court sustained this plea. The government thereupon brings a writ of error. Held, that the plea was good. United States v. Oppenheim, U. S. Sup. Ct., Oct. Term, 1916,

No. 412.

Except under statutes, no similar case on a judgment on a plea to the indictment seems to have arisen. It has been held, however, that a new indictment is not barred by a judgment sustaining a demurrer going to the merits

of a previous indictment on the same facts. People v. Gluckman, 60 App. Div. 307, 70 N. Y. Supp. 173. Cf. Commonwealth v. Willcox, 111 Va. 849, 69 S. E. 1027; Bowman v. Commonwealth, 146 Ky. 486, 143 S. W. 47. See 2 VAN FLEET, RES JUDICATA, 1242. These decisions are based on the fact that there had been no former jeopardy, for the defendant had not yet been put on trial upon any issues of fact. Cf. Taylor v. United States, 207 U. S. 120; People v. Stanton, 84 Misc. 101, 146 N. Y. Supp. 862. In civil actions such a judgment would however operate as res judicata. Gould v. Evansville, etc. R. Co., 91 U. S. 526, 534. Contra, State of Arkansas v. Gill, 33 Ark. 129, 132. But the application of this doctrine to criminal law is apparently new. Nothing under that name, distinct from former jeopardy, has been hitherto recognized. At most the term has been used to extend the doctrine of former jeopardy to summary proceedings. Cf. Wemyss v. Hopkins, L. R. 10 Q. B. 378, 381. But former jeopardy is only a variant of the same fundamental principles of justice and expediency that lie behind res judicata. See Wemyss v. Hopkins, L. R. 10 Q. B. 378, 381. Yet jeopardy sufficient to create a defense to subsequent action is generally only reached subsequent to judgments on the pleadings. Cf. Taylor v. United States, supra; Kepner v. United States, 195 U. S. 100, 128. As there is no basis for this failure to protect a criminal after a judgment on a demurrer or plea to the indictment, it seems but equitable to apply the doctrine of res judicata to fill the gap. The result of the principal case has been reached by statutes in a number of states. Cf. Ex parte Hayter, 154 Cal. 243, 116 Pac. 370, with State v. Fields, 106 Iowa 406, 76 N. W. 802.

POWERS SPECIFIC PERFORMANCE ENFORCEMENT OF CONTRACT TO EXERCISE GENERAL TESTAMENTARY POWER OF APPOINTMENT. — The donee of a general power of appointment to be exercised by will contracted to exercise it by an irrevocable will in favor of the promisee. At the same time he signed a will in accordance with the contract. He later made a new will revoking the former and leaving the property to others. Suit is brought after his death. Held, that the contract will not be specifically enforced. Farmers' Loan & Trust Co. v. Mortimer, 114 N. E. 389 (N. Y.).

Where the owner of property contracts to devise it, specific performance is regularly granted and enforced by imposing a constructive trust on the property in the hands of those to whom it has come at law. Emery v. Darling, 50 Ohio St. 160, 33 N. E. 715. A general power of appointment is often considered to approximate absolute ownership. See 24 Harv. L. REV. 654. Thus where the mode of execution is unrestricted, a contract to appoint is in equity deemed equivalent to actual appointment. Johnson v. Touchet, 37 L. J. Eq. 25; In re Jennings, 8 Ir. Ch. 421. But a distinction should be made when necessary to fulfill the donor's intention. Now the very purpose of making a power exercisable by will only is to provide freedom of appointment until the donee's death. An irrevocable contract destroys this freedom. Specific performance of it should therefore not be allowed to defeat the rights of those claiming under an exercise of the power as contemplated by the donor. Thus in default of appointment, those entitled under the provisions made by the donor should take over those with whom the donee has contracted. See Reid v. Shergold, 10 Ves. Jr. 370, 379. So also those prevail who claim under an authorized exercise of the power, although in violation of the contract, and specific performance is not granted. In re Parkin, (1892] 3 Ch. 510; Wilks v. Burns, 60 Md. 64. Cf. Reid v. Boushall, 107 N. C. 345, 12 S. E. 324. In the case of a special testamentary power it has been held that not even may damages be recovered at law, the contract being considered illegal and void. In re Bradshaw, (1902) 1 Ch. 436. See Palmer v. Locke, 15 Ch. D. 294, 300. This result may be supported on the ground that the power was created primarily for the benefit of a class, to which the donee owes a fiduciary duty, in the nature of a trust, to do nothing in vio

lation of the creator's intention. But where the power is general, there is no reason, as regards the donee alone, why he should not be liable on his promise. Damages may therefore be recovered against his estate. In re Parkin, supra.

QUASI-CONTRACTS RIGHTS ARISING FROM MISTAKE OF Fact — RECOVERY FOR BENEFITS CONFERRED UNDER A CONTRACT WITH AN UNAUTHORIZED AGENT. Plaintiff agreed with the defendant's general manager to make certain improvements on defendant's land in return for a twenty-year lease of the land. The manager had no authority to make such a contract. After the plaintiff had been working on the improvements for about five months, evidently with the defendant's knowledge, defendant offered to give plaintiff a lease for ten years, but no longer. Plaintiff quit work, and sues for the value of the improvements already made. Held, that the plaintiff recover. Underhill v. Rutland R. Co., 98 Atl. 1017 (Vt.).

At one time liability in quasi-contract was thought to be based on a form of implied contract. See WOODWARD, QUASI-CONTRACTS, § 4. If this were true, it is obvious that no recovery could be had for services rendered under a void contract, for the contract itself must rebut any inconsistent implication. See dissenting opinion of Ingraham, J., in Lyon v. West Side Transfer Co., 132 App. Div. 777, 117 N. Y. Supp. 648. It is a survival of this idea of implied contract which causes some courts to hold that the defendant must knowingly receive the benefits in order to be liable in quasi-contract. Spooner v. Thompson, 48 Vt. 259; Kelley v. Lindsey, 7 Gray (Mass.) 287. Cf. Otis v. Inhabitants of Stockton, 76 Me. 506. But if the benefits of a contract made by an unauthorized agent were knowingly received, it would usually amount to a ratification of the agent's contract. See MECHEM, AGENCY, 2 ed., $$ 434, 436, n. 16. The true basis of liability in quasi-contract is that the defendant has received a benefit from the plaintiff which it would be inequitable for him to keep; it does not rest on any real contractual obligation whatever. KEENER, QUASI-ConTRACTS, 19. One who receives the fruits of a contract made by an unauthorized agent should therefore be liable irrespective of his knowledge of the transaction, if actually benefited thereby, and it is usually so held. Reid v. Rigby, (1894) 2 Q. B. 40; Leonard v. Burlington, etc. Ass'n, 55 Iowa 594, 8 N. W. 463. Cf. Van Deusen v. Blum, 18 Pick. (Mass.) 229. But cf. Bond v. Aitkin, 6 Watts & S. (Pa.) 165. In the principal case there was considerable evidence that the defendant knowingly received the benefits of its agent's contract, so that it might well have been held to have ratified it. Cf. Clark v. Hyatt, 118 N. Y. 563, 23 N. E. 891. But if such is not the case, the recovery in quasi-contract is clearly justified. Hawkins v. Lange, 22 Minn. 557; Werre v. Northwest Thresher Co., 27 S. D. 486, 131 N. W.721; Henrietta National Bank v. Barrett, 25 S. W. 456 (Tex.).

SALES TIME OF PASSING OF TITLE MISTAKE AS TO WHOM GOODS ARE INTENDED FOR. — Seller was owner of 1000 bushels of oats lying in a ship in the harbor. He sold 500 bushels to the plaintiff and 500 to the defendant. Both the plaintiff and the defendant hired the same lighterman, X., to bring their grain to shore. X. got 500 bushels in one of his boats, which he took for the defendant; but the seller intended this grain for the plaintiff, and made out his papers accordingly, one of which, in the nature of a consignment, was delivered to X. but X. did not open it. This load was delivered to the defendant and appropriated by him. X. got the remaining 500 bushels in another boat and the converse mistake occurred. This boat was sunk. The plaintiff sues for the first load of grain. It was found as a fact that neither the seller nor X. was negligent in making the mistake. Held, that title to the first load passed to plaintiff. Denny v. Skelton, 115 L. T. R. 305.

According to the English law, where the goods are part of an undivided mass

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