12, 17, 56 N. E. 502, 504. But an exception has been made when the repetition is privileged. Derry v. Handley, 16 L. T. (N. S.) 263. In the principal case the court makes another exception on the ground that the words are here actionable per se. The jury, which can assess general damages, will, as a matter of fact, doubtless take these repetitions into consideration. But by authority, any instruction to that effect is error. Hastings v. Stetson, 126 Mass. 329; Prime v. Eastwood, 45 Ia. 640. See NEWELL, SLANDER AND LIBEL, 3 ed., § 1079. Now the established general rule rests on an obsolescent principle of causation. See 27 HARV. L. REV. 389. But the fact that the law considers the slander actionable per se can certainly not effect such causation. It is therefore difficult to justify this distinction. The decision, however, is desirable in placing a further limitation upon a rule which is without basis of reason. For it is highly foreseeable that slanderous remarks will be repeated, and it is just this repetition which is responsible for the main injury in defamation. See Davis v. Starrett, 97 Me. 568, 576, 55 Atl. 516, 519.

LIBEL AND SLANDER PUBLICATION — BY OFFICER OF CORPORATION TO AGENT. A letter, defamatory of plaintiff, was dictated by an officer of a corporation to his stenographer and sent to a fellow-employee. Each was acting in the prosecution of the business of the corporation. Held, that this did not constitute a publication of a libel. Central of Georgia Ry. Co. v. Jones, 89 S. E. 429 (Ga.).

It has been held that dictation to a stenographer by an officer of a corporation is not a publication. Owen v. Ogilvie Pub. Co., 32 App. Div. 465, 53 N. Y. Supp. 1033. See 12 HARV. L. REV. 355. The principal case applies the same principle to communications between any fellow-employees. These cases argue that, as a corporation is an entity, acting only through agents, a communication by one agent to another is merely a communication by the corporation to itself; that the agents are merely parts of the deliberative machinery of the corporation, as distinguished from their identity as individuals. But such a distinction seems neither desirable nor true to fact. See 27 HARV. L. Rev. 284. It seems impossible, as a matter of practice, to dissociate the individual from the employee. Agents do form personal opinions and act upon them. The danger to the community of licensing such communications, which in the case of a large concern might well become widespread, seems to outweigh the consideration that the corporation would otherwise be seriously hampered in the transaction of its business. If the communications are necessary and reasonable, as in the principal case, the defense of privilege is available. Lawless v. Anglo-Egyptian Cotton & Oil Co., L. R. 4 Q. B. 262; Edmondson v. Birch & Co., [1907] 1 K. B. 371, 380.

MUNICIPAL CORPORATIONS ABUTTING OWNERS-EASEMENTS. - Adjoining the plaintiff's property the city erected a public bathhouse with projections upon the sidewalk which violated the city charter and a city ordinance. The plaintiff applies for a mandatory injunction requiring the city to remove the encroachments. Held, that the injunction be granted. Hellinger v. City of New York, 95 Misc. 394.

It is generally held that an abutter has a property right in the air, light, and access afforded by the street, which cannot be taken without compensation. Story v. N. Y. etc. R. Co., 90 N. Y. 122; Abendroth v. Manhattan Ry. Co., 122 N. Y. 1, 25 N. E. 496; De Geofroy v. Merchants, etc. Ry. Co., 179 Mo. 698, 79 S. W. 386. See I LEWIS, EMINENT DOMAIN, 3 ed., § 123. Encroachments on the sidewalk which materially touch this right will be enjoined, and an ordinance permitting such cannot be supported. McMillan v. Klaw & Erlanger Const. Co., 107 App. Div. 407, 95 N. Y. Supp. 365. In most cases the offenders have been private individuals. It seems however not improper to

enforce the same rule against the city. There are undoubtedly some things that a city may not do within its streets. Lutterloh v. Mayor, etc. of Cedar Keys, 15 Fla. 306; Morrison v. Hinkson, 87 Ill. 587; Dubuque v. Maloney, 9 Iowa 450. When the city is improving roads or building bridges, courts go very far to find its action privileged as an exercise of governmental function. Callendar v. Marsh, 1 Pick. (Mass.) 418; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457; Sauer v. New York, 180 N. Y. 27, 72 N. E. 579. But arguments of that sort hardly apply to an encroachment by a public bath.

RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY – ACCRETIONS TO SERVIENT TENEMENT. The owner of a large tract of land lying between bay and ocean divided it into building lots. He agreed with the buyers of lots that a certain strip running through the center of the tract from bay to ocean should be kept forever open. Extensive accretions formed at the ocean extremity of this open area. Held, that the accretions were subject to the restrictions binding the original strip. Bridgewater v. Ocean City Ass'n, 96 Atl. 905 (N. J.).

It is a familiar rule of construction of grants that the designation of navigable water as a boundary imports the shifting high-water line thereof. Mulry v. Norton, 100 N. Y. 424, 3 N. E. 581. This rule has been likewise applied to a street easement acquired by condemnation proceedings. See 22 HARV. L. REV. 610. The correctness of its application in the principal case can hardly be questioned. The same result, however, might have been reached by regarding the accretions as assimilated by or drowned in the original tract, and therefore subject to its burdens. This conception is amply supported by precedent. For example, the adverse occupancy of shore land for the statutory period carries with it title to accretions, though the latter may have but recently formed. See Campbell v. The Laclede Gas Light Co., 84 Mo. 352, 372. Similarly if the tract is mortgaged, the accretions are subject to the mortgage lien. Cruikshanks v. Wilmer, 93 Ky. 19, 18 S. W. 1018. The same is likewise true in the case of dower. Lombard v. Kinzie, 73 Ill. 446. The rule is also followed where the land is subject to a lease. Cobb v. Lavalle, 89 Ill. 331.

RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO THE USE OF PROPERTY - EMINENT DOMAIN - COMPENSATION TO OWNER OF BENEFITED LAND WHEN RESTRICTED LAND IS CONDEMNED. The plaintiff owned lots which were within a tract of restricted building lots, the deeds to which provided that no structure for business purposes should be erected on any of these lots. The defendant railway company acquired lots equitably servient to those of the plaintiff and built its tracks thereon. The plaintiff seeks compensation. Held, that the plaintiff may recover. Flynn v. New York, Westchester & Boston Ry. Co., 112 N. E. 913 (N. Y.).

In two similar cases held, that the plaintiff may not recover. Ward v. Cleveland Ry. Co., 92 Ohio St. 471, 112 N. E. 507; Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461, 112 N. E. 505.

The question whether an equitable servitude is a contract right or a right in rem has been a matter chiefly of theoretical dispute. See 21 HARV. L. REV. 139. In the principal cases the question has become of practical importance. By adopting different theories the courts have reached different results. It seems doubtful, however, whether even here different conclusions are necessary. The two Ohio cases hold, going on the contract theory, that a restrictive covenant creates no rights effective as against the powers of eminent domain. 'The basis of such decision is public policy: otherwise property owners could by contracting among themselves defeat the rule that depreciation in value of neighboring property incidental to a public use does not constitute a "taking" so as to require compensation. See United States v. Certain Lands,

etc., 112 Fed. 622, 629. Accepting such basis as sound, it appears that on the property theory there may be the same result. For the creation of such property right rests on contract. Now a possible construction of the contract, and one favored by the rule that a contract must be construed, if possible, to be within public policy, is that the restriction was to cover only private undertakings. Cf. 29 HARV. L. REV. 552. If such interpretation is rejected, the full operation of the contract would, by our premise, conflict with public policy. This may mean that the contract is void. But the contract may be good, and policy still prevent the creation of an equitable property right from it. Norcross v. James, 140 Mass. 188, 2 N. E. 946. In either case, there is no property right to award compensation for.

TAXATION - WHERE PROPERTY MAY BE TAXED-INHERITANCE TAX ON NON-RESIDENT PARTNER'S INTEREST IN LOCAL PARTNERSHIP REALTY. - The testator, a resident of New York, was a member of a partnership, which had a branch and owned realty in Pennsylvania. The partnership agreement provided that upon the death of one partner the other should carry on the business, paying to the estate of the deceased partner the value of his interest. On the death of the testator, Pennsylvania attempts to collect an inheritance tax on the testator's interest in the partnership property. The personal representatives of the testator were non-residents. Held, that the tax cannot be collected. In re Arbuckle's Estate, 97 Atl. 186 (Pa.).

Real property is taxable in the jurisdiction in which it is situated. People v. Howell, 106 App. Div. 140, 94 N. Y. Supp. 488. On the other hand, debts of whatever form are taxable at the domicile of the creditor. Meyer v. Pleasant, 41 La. Ann. 645, 6 So. 258; Kirtland v. Hotchkiss, 100 U. S. 491. Where a testator directs in his will that his realty be sold, such direction works an equitable conversion of the realty which is then taxable as personalty. In re Smyth, [1898] 1 Ch. 89; In re Coleman's Estate, 159 Pa. St. 231, 28 Atl. 137. Contra, In re Swift's Estate, 137 N. Y. 77, 32 N. E. 1096; Connell v. Crosby, 210 Ill. 380, 71 N. E. 350. The special agreement in the principal case would obviously have the same result. The doctrine of equitable conversion is not however essential to the decision of the case. The better view is that individual partners have no right to realty owned by the partnership, but only a right to its proceeds, i. e., a chose in action. Kruschke v. Stefan, 83 Wis. 373, 53 N. W. 679. But many jurisdictions allow a partition, if no debts are outstanding. Molineaux v. Raynolds, 54 N. J. Eq. 559, 35 Atl. 536. The special agreement in the principal case, however, would nullify the right, if any, to partition, which might otherwise have passed to the representatives of the testator. So on any basis they owned a chose in action, taxable only at their domicile.

TELEGRAPH AND TELEPHONE COMPANIES DAMAGES FOR ERROR, DELAY, OR NON-DELIVERY - MEASURE OF DAMAGES WHERE TELEGRAM FORMED A COMPLETED CONTRACT. The plaintiff sent a telegram by the defendant company accepting an offer for the sale of goods in reply to a telegram from the offeror. The defendant negligently failed to deliver the telegram, in consequence of which the offeror failed to fulfill his contract, and the plaintiff was forced to buy goods at an advanced rate. A statute provided that telegraph companies shall be liable for special damages caused by failure to deliver dispatches. 1909 REV. STAT. MO., § 3334. Held, that the plaintiff can recover the difference between the contract price and the market price. Tippin v. Western Union Telegraph Co., 185 S. W. 539 (Mo.).

The delivery of the telegram to the defendant company completed the contract with the offeror. Lungstrass v. German Ins. Co., 48 Mo. 201. Its negligence prevented the offeror from carrying out such contract. The injury to the plaintiff thus consists solely in having a reasonable expectation of performance

changed to a right of action at law. Many courts, in telegraph cases of this kind, have allowed recovery on the ground that such injury was legal damage. Straus v. Western Union Tel. Co., 8 Biss. 104; Squire v. Western Union Tel. Co., 98 Mass. 232; Elam v. Western Union Tel. Co., 113 Mo. App. 538, 88 S. W. 115. Contra, Kenedy Mercantile Co. v. Western Union Tel. Co., 167 S. W. 1094 (Texas). That such decision must accord with popular ideas of justice, is evident. Further, it prevents circuity of action, and has as precedent in other fields those cases that allow recovery for breach of contract maliciously induced by a third party. Bowen v. Hall, 6 Q. B. D. 333. The statute in the case, while not, as the court contended, determining what constitutes legal damage, affects the situation in determining the extent of the collectible damage. For in a contract action the damages are limited to those within the contemplation of the parties. Melson v. Western Union Tel. Co., 72 Mo. App. 111. But in a tort action, which the statute appears to authorize, the damages will extend to any proximate consequences of the negligence. See WOLF, LIABILITY OF TELEGRAPH COMPANIES, 19, 31.

TENANCY IN COMMON-RIGHTS OF CO-TENANTS AGAINST EACH OTHER RIGHT OF ONE CO-OWNER OF A COPYRIGHT TO RESTRAIN INFRINGEMENT BY THE OTHER. - A., co-owner with B. of a copyright, exercised the copyright privileges without the consent of B. B. seeks to enjoin him. A statute provides that "copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright." GEO. V, sec. 2, subsec. 1. Held, that B. is entitled to an injunction. Cescinsky v. Routledge & Sons, Ltd., [1916] 2 K. B. 325.

1911

The words of the statute seem to be decisive of this case. Since the consent of the owner, i. e., of both A. and B., was not obtained, A.'s actions must come within the definition of infringement. But aside from the statute, the decision is supported by analogies from the common law. For in the case of incorporeal hereditaments, the rights of one co-tenant were distinctly limited by the rights of the other. For instance, one co-parcener could not enjoy the right to an advowson to the exclusion of the other, but each took it in turn. COMYN'S DIGEST, tit. Advowson, A; COKE UPON LITTLETON, 164 b, (q). The same was true of a mill or piscary which descended to parceners. See Powell v. Head, [1879] 12 Ch. D. 686, 688. See COKE UPON LITTLETON, 165 a. Even in the rights of cotenants of land the analogy holds. It is true that one tenant-in-common of land is entitled to the possession of the entire property. Knox v. Silloway, 10 Me. 201; Rising v. Stannard, 17 Mass. 282; Mumford v. Brown, 1 Wend. (N. Y). 53. And he can make a reasonable use of the common property, even if this involves waste. Dodd v. Watson, 4 Jones Eq. (N. C.) 48; McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134, 27 Pac. 863. But he cannot commit such waste as is destructive of the estate. Leatherbury v. McInnis, 85 Miss. 160, 37 So. 1018. See 2 STORY, EQ. JUR., § 916. The property in the principal case is a monopoly of production. Thus clearly production outside the monopoly is destructive of the fundamental property right of copyright. There is little direct authority, however, on the question of the rights of co-owners of a copyright against each other. One co-owner of a drama cannot, without the consent of the other, license a third person to produce it. Powell v. Head, supra. But in that case the question of the rights of co-owners inter se was expressly left open. And it has been held that the assignees of three of the four co-owners of a copyright may enjoin a stranger from infringing it. Lauri v. Renad, [1892] 3 Ch. 402. In the latter case, Kekewich, J., introduces an element of confusion by attempting to distinguish "part ownership" from tenancy in common and joint tenancy. This is a novel idea of ownership which has no basis in authority. But whether or no the rights in an incorporeal hereditament are

divisible as to title, public policy must approve of the language of the court, that such rights are indivisible as to exercise.

AVAILABILITY TO THE BENE

VENDOR AND PURCHASER VENDOR'S LIEN FICIARY OF THE CONTRACT OF SALE. - The vendor conveyed land to the vendee, taking in consideration the vendee's promise to pay the purchase price to the vendor's daughter. Held, that the daughter is entitled to a grantor's lien on the land. Lenox v. Earls, 185 S. W. 232 (Mo.)

The rationale of the doctrine of the grantor's lien has been variously stated. See 3 POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 1250. It has most commonly been spoken of as a constructive trust. Wilkinson v. May, 69 Ala. 33. See i PERRY, TRUSTS, 6 ed., §§ 231, 232. But the theories on which this doctrine is generally supported have been strongly objected to. Ahrend v. Odiorne, 118 Mass. 261. See 3 POMEROY, EQUITY JURISPRUDENCE, 3 ed., §§ 1234, 1250. A theory not alluded to in the criticisms cited is that the trust is imposed to prevent fraud. Ahrens v. Jones, 169 N. Y. 555, 62 N. E. 666. But there can be no actual fraud in the making of a promise which one intends to keep. It is submitted that the better view is that the lien arises from a "natural judicial conception" that the thing sold should be security for the purchase price. See 3 POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 1250. The decision of the principal case may very likely be dependent upon which view of the grantor's lien the court has taken. That of a constructive trust may allow the lien to arise in favor of a beneficiary whether or no the beneficiary is given a right at law for the purchase price. Ahrens v. Jones, supra. If, however, the lien is based on the idea that the thing sold should be security for the purchase price, it follows directly that the lien should benefit the person to whom the purchase price is due. Thus the result in the principal case can be reached only in those jurisdictions which give a sole beneficiary a right at law. The principal case is generally supported by those courts which allow a grantor's lien. Zwingle v. Wilkinson, 94 Tenn. 246, 28 S. W. 1096; Pruitt v. Pruitt, 91 Ind. 595.

BOOK REVIEWS

MODERN LEGAL PHILOSOPHY SERIES: VOLUME VII. MODERN FRENCH LEGAL PHILOSOPHY. By A. Fouillée, J. Charmont, L. Duguit, and R. Demogue; translated by Mrs. Franklin W. Scott and Joseph P. Chamberlain, with an editorial preface by Arthur W. Spencer and with introductions by John B. Winslow and F. P. Walton. Boston: The Boston Book Company, 1916. pp. lxvi, 578.

The volume is a mosaic. Part I ("A Brief Survey of Philosophy of Law in France") is made up of extracts from Fouillée's L'Idée Moderne du Droit and of eight chapters from Charmont's La Renaissance du Droit Naturel. Part II ("Some Important Points of View in Contemporary French Legal Philosophy") is made up of other extracts from Fouillée's L'Idée Moderne du Droit, from Duguit's L'État: Le Droit Objectif et la Loi Positive, and from Part I of Demogue's Les Notions Fondamentales du Droit Privé.

These extracts have the unity of time and place. They justify the title of the book. They are modern, they are French, and they are legal philosophy. Local color predominates. A discussion of such a general topic as free scientific research presupposes a system of law, like the French code, as the basis of reality upon which to rear a structure of philosophical speculation. While Demogue discusses security, liberty, and justice in most general terms, he usually has in mind a section of the French civil code, or a decision from one of the