87, 89, 1 N. W. 801, 802. Contra, Greenwich Insurance Co. v. Friedman Co., 142 Fed. 944. True, if such persons agree with the plaintiff to make it a test case, the judgment will bind them. Penfield v. Potts, 126 Fed. 475, 479. Then they are concluded not so much by the judgment as by their agreement to abide by the result. But when, as in the principal case, there is no such agreement there will be no estoppel by judgment. Merchants' Coal Co. v. Fairmont Coal Co., 160 Fed. 769, 777.

RESTRAINT ON ALIENATION SPENDTHRIFT TRUST - WHETHER AN ABSOLUTE EQUITABLE INTEREST Passes to ASSIGNEES IN BANKRUPTCY. - The testator devised property to trustees to pay the income to his son for life and thereafter to his son's children until the oldest reached forty, when the property was to be divided equally among them. A further provision directed that all payments of principal and income should be made directly to the beneficiaries, free of assignments and creditors' attachments. The ultimate distribution of the fund has now been made except to one beneficiary who has become bankrupt. His assignee in bankruptcy claims his portion. Held, that the bankrupt takes the share free from his assignee's claim. Boston Safe Deposit and Trust Co. v. Collier, 111 N. E. 163 (Mass.).

It is widely held in this country that the right to receive the income of a trust fund for life may be made inalienable. Broadway National Bank v. Adams, 133 Mass. 170; Smith v. Towers, 69 Md. 77, 14 Atl. 497; Leigh v. Harrison, 69 Miss. 923, 11 So. 604. See GRAY, RESTRAINTS ON ALIENATION, 2 ed., § 178. Consequently such interests cannot be reached by creditors and do not pass to an assignee in bankruptcy. Munroe v. Dewey, 176 Mass. 184, 57 N. E. 340. Moreover, in a few jurisdictions, and notably in Massachusetts, the courts have given effect to a testator's direction to withhold a legacy from the beneficiary for a designated period. Claflin v. Claflin, 149 Mass. 19; Lunt v. Lunt, 108 Ill. 307; Stier v. Nashville Trust Co., 158 Fed. 601. But here the absolute equitable interest is alienable and accessible to creditors. See GRAY, supra, § 124 l-n. By the doctrine of the principal case, not only is the postponement valid, but meanwhile, until the trust is terminated and the property actually given to the beneficiary in fee, his absolute equitable interest is inalienable. This decision contravenes the great weight of authority. Smith v. Moore, 37 Ala. 327; Turley v. Massengill, 7 Lea (Tenn.) 353; Gray v. Obear, 54 Ga. 231. Contra, Beck's Estate, 133 Pa. St. 51, 19 Atl. 302; Weller v. Noffsinger, 57 Neb. 455, 77 N. W. 1075. In Massachusetts only two dicta support it. Lathrop v. Merrill, 207 Mass. 6, 9; Braman v. Stiles, 2 Pick. 460, 464. Besides lacking authoritative basis the decision works gross injustice, for after the bankrupt's discharge from his debts, he can call for a conveyance to himself of the property, which his creditors cannot then reach. See Re Bandonine, 96 Fed. 536, 539. Only a difference of degree, it may be urged, exists between permitting restrictions on a life income and on the principal itself; the debtor is simply allowed to enjoy more property at the expense of his creditors. Exactly this is the evil to be avoided in applying an anomaly supportable only on the policy of aiding a donor to protect his beneficiary from prodigality. See G. Clark, "Spendthrift Trusts," 9 BENCH & BAR, n. s. 6, 59, 106.

SUNDAY LAWS NECESSITY SUNDAY NEWSPAPER ADVERTISING. - A newspaper company sues for the contract price of advertisements inserted in both week day and Sunday issues. The usual statutory provision against Sunday labor except for purposes of necessity or charity was in force. Held, that the company may recover the contract price, since Sunday newspapers are a necessity. Pulitzer Pub. Co. v. McNichols, 181 S. W. 1 (Mo.).

"Necessity," in Sunday laws, means whatever is necessary for reasonable

Sunday convenience in the particular community. Commonwealth v. Louisville &Nashville R. Co., 80 Ky. 291; Yonoski v. State, 79 Ind. 393, 396; McGatrick v. Wason, 4 Oh. St. 566, 573. Hence what may not be a necessity in one community at one time, may be consistently held a "necessity" in other communities, or in the same community at other times. Compare Commonwealth v. Jeandell, 2 Grant's Cases (Pa.) 506, with Augusta, etc. R. Co. v. Renz, 55 Ga. 126, 128; and State v. Goff, 20 Ark. 289, with State v. Turner, 67 Ind. 595. But if the full benefits of a service can be obtained by week-day activity exclusively, such activity cannot be a Sunday necessity. Louisville & Nashville R. Co. v. Commonwealth, 92 Ky. 114, 17 S. W. 274; Arnheiter v. State, 115 Ga. 572, 41 S. E. 989. As to a newspaper, however, though all the news of the week can be compressed into one issue, news a day late has lost so great a part of its value that daily news is undeniably a commercial necessity. Still a community may have a different standard of needs for Sundays as compared with week days. State v. James, 81 S. C. 197, 200, 62 S. E. 214. Cf. Commonwealth v. Jeandell, supra. Thus, since the law expressly forbids commercial activity on Sundays, Sunday newspapers cannot be justified on commercial grounds. And until the present case, Sunday papers have been uniformly held improper. Smith v. Wilcox, 24 N. Y. 353; Handy v. Globe Pub. Co., 41 Minn. 188, 42 N. W. 872; Sentinel Co. v. Meiselbach Motorwagon Co., 144 Wis. 224, 128 N. W. 861; Knapp & Co. v. Culbertson, 152 Mo. App. 147, 133 S. W. 55. However, the growth of approved Sunday activities and the increase of popular interest in world events furnish other grounds for considering them necessary. Besides, the courts in determining what is a "necessity," have considered not only differences between communities and changing conditions within a community but the general opinion of the public as to legitimate Sabbath occupations. See State v. James, supra, at 200; HARRIS, SUNDAY LAWS, § 98. Cf. Edgerton v. State, 67 Ind. 588. And the fact that repeated prosecution still leaves the Sunday paper a universal factor in American life indicates the approval of public opinion.

TAXATION - INHERITANCE TAX- APPLICATION TO PROPERTY HELD IN TENANCY BY THE ENTIRETY. - A wife conveyed certain realty to a third person, who conveyed forthwith to her husband and herself in fee as tenants by the entirety. The husband dies and his executors petition the probate court for instructions to determine whether his half interest of the property was taxable under the Massachusetts inheritance tax. Held, that the property was not taxable. Palmer v. Mansfield, 110 N. E. 283 (Mass.).

The New York Court of Appeals, three judges dissenting, has recently reached the opposite conclusion. Matter of Klatzl, 216 N. Y. 83. For a criticism of the New York decision see 29 HARV. L. REV. 201. In the present case, however, the preliminary conveyance to a third person avoids technical difficulties involved in the New York case, as to conveyance by the grantor to himself.

TAXATION - PARTICULAR FORMS OF TAXATION - THE INCOME TAXSIXTEENTH AMENDMENT. The Tariff Act of 1913 levied a graduated tax on all incomes over $4,000. The plaintiff, a stockholder in the defendant corporation, brought a bill to enjoin the corporation from complying with the requirements of the act, on the ground that the tax was not authorized by Sixteenth Amendment, and was therefore void as a direct tax levied without apportionment. Held, that the tax is constitutional. Brushaber v. Union Pacific R. R. Co., Sup. Ct. Off., No. 146.

For a discussion of the questions involved, see NOTES, p. 536.

TORTS DEFENSES RIGHT TO DESTROY PROPERTY AS REASONABLE PROTECTION AGAINST OWNER'S WRONG - KILLING DOG WHO HAD BITTEN

TO ASCERTAIN RABIES. - The plaintiff's dog bit the defendant's child. The defendant, fearing rabies, offered to buy the dog and have it tested by the Pasteur Institute. On the plaintiff's refusing to sell the dog, the defendant entered his house through an unlocked window, while the members of the household were absent, and killed the dog, removing the head, which he sent to the Institute, where it was found to be a healthy specimen. The plaintiff now sues for the value of the dog. Held, that he may recover. Allen v. Camp, 70 So. 290 (Ala.).

One who acts reasonably to avert harm threatened by the wrongful act of another, may recover from the latter for injury incurred while so acting. Eckert v. Long Island R. Co., 43 N. Y. 502; La Duke v. Exeter Township, 97 Mich. 450, 56 N. W. 851. And if he injure or destroy property as a necessary or reasonable measure of protection against danger resulting from the tort of the owner thereof, he is not liable in damages. Haley v. Colcord, 59 N. H. 7; Russel v. Barrow, 7 Port. (Ala.) 106. Thus, it is well settled that the killing of a dog in defense of person or property is justified. Credit v. Brown, 10 Johns. (N. Y.) 365; Reynolds v. Phillips, 13 Ill. App. 557. However, the killing must be strictly a defensive measure. Morris v. Nugent, 7 C. & P. 572; Perry v. Phipps, 32 N. C. 259. The same reasoning on which such a killing may be justified, it is submitted, will justify a trespass reasonably incidental thereto. Especially is this so since the owner of a dog is liable for its attack upon a trespasser. Woolf v. Chalker, 31 Conn. 121; Loomis v. Terry, 17 Wend. (N. Y.) 497In the principal case, though the killing was not in defense against the dog's attack, it was clearly a measure of protection against the injurious effects of his bite. However, it may be questioned whether the trespass and the killing of the dog was a reasonably necessary measure of protection. See (1911) I HANDBUCH DER TECHNIK UND METHODIK DER IMMUMTÄTO-FORSCHUNG, 442.

TORTS - UNUSUAL CASES OF TORT LIABILITY KNOWINGLY AND UNLAWFULLY CAUSING THE PLAINTIFF TO EXPEND MONEY TO PREVENT LIABILITY UNDER AN INDEMNITY CONTRACT. The plaintiff contracted with a surety to indemnify him for any loss incurred as surety on a bond for X.'s appearance to answer a criminal charge. The defendant, although he knew of the plaintiff's contract, persuaded X. to leave the jurisdiction, fearing that X., if he remained, might incriminate him. The plaintiff thereupon reasonably expended money to procure X.'s return, in order to avert liability under his contract. Held, that he may recover the sum so expended. Wakin v. Wakin, 180 S. W. 471 (Ark.). In the principal case there was clearly no direct contractual relationship between X. and the plaintiff. And, although X. may have contracted with the surety not to subject the latter to liability, the plaintiff cannot be subrogated to the contractual rights of the surety, since he has not yet incurred an obligation to indemnify him. See VANCE, INSURANCE, 427. Hence the plaintiff cannot recover upon the strict principle of Lumley v. Gye for wrongfully inducing a breach of contract. However, that an action of tort is without precedent is in itself no bar. Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S. W. 584. In the principal case the defendant knew both of the plaintiff's contract, and that his act would cause the plaintiff either to suffer the loss now sued for, or to pay the indemnity - an even greater loss. Thus, since a tortfeasor intends to cause whatever harm he knows will result from his act, the defendant's injury to the plaintiff was intentional. See 28 HARV. L. REV. 511. See O. W. Holmes, "Privilege, Malice and Intent," 8 HARV. L. REV. 1. And the trend of modern law is, rightly, to the position that the intentional infliction of harm is an actionable wrong unless justified. McNary v. Chamberlain, 34 Conn. 384. See 27 HARV. L. REV. 394; SALMOND, TORTS, 2 ed., 497. As the carrying out of his object involved the unlawful act of aiding X. to escape

from justice, the defendant has no justification, although his motive was not to injure the plaintiff. Cf. March v. Wilson, Busb. (N. C.) 143; Sparks v. McCreary, 156 Ala. 382, 387, 47 So. 332, 334; Amick v. O'Hara, 6 Blackf. (Ind.) 258.

VENDOR AND PURCHASER - RESCISSION FOR FRAUD OF THE VENDOR EFFECT OF "BIG TALK" BY THE PURCHASER. The plaintiff, an ex-fisherman, negotiating for a purchase of the defendant's land, stated that "he knew good land when he saw it." The defendant thereupon told him sundry lies as to its quality. The plaintiff bought the land. There is evidence that in doing so he relied upon defendant's statements. He now sues to rescind the sale and recover installments of the purchase price. The court below dismissed his suit. Held, that this was proper. Hegdale v. Wade, 153 Pac. 107 (Ore.).

The plaintiff, having challenged the defendant to fool him if he can, is denied recovery when his challenge is successfully accepted. This result, so in agreement with poetic justice, probably cannot be supported on principles that determine justice according to law. It is impossible even by express contract to waive the right to object to fraud to be committed in the future by the other party to the contract. Industrial & General Trust v. Tod, 180 N. Ý. 215, 73 N. E. 7. See Chism v. Schipper, 51 N. J. L. 1, 11, 16 Atl. 316, 317. Cf. Bridger v. Goldsmith, 143 N. Y. 424, 38 N. E. 458; Pearson v. Dublin Corporation, [1907] A. C. 351. But see Milner v. Field, 5 Exch. 829. The implied waiver resulting from the challenge therefore cannot be effective. But the challenge has other possible effects. If taken in good faith by the seller as a true statement that the buyer is an expert, it negatives the existence of those circumstances of realized special knowledge and the like which properly lead courts to construe statements of opinion as including statements of underlying fact. Compare Black v. Irwin, 149 Pac. 540 (Ore.), with White v. Sutherland, 64 Ill. 181. See Smith v. Land & House Property Corporation, 28 Ch. D. 7, 15. The statements here, of the quality and probable fertility of lands not yet under cultivation, are prima facie statements of opinion. Lee v. McClelland, 120 Cal. 147, 52 Pac. 300; Gordon v. Butler, 105 U. S. 553. Cf. Deming v. Darling, 148 Mass. 504, 20 N. E. 107. If the seller's state of mind was as supposed, they must be taken to be nothing more. Also in the matter of reliance by the buyer, the challenge, plus the fact that he saw the land himself, is evidence that he trusted to his own judgment, or his luck, rather than defendant's statements. But the challenge of itself is not conclusive either that what the seller said was only seller's talk, or that the buyer did not act upon it.

VOLUNTARY ASSOCIATION - RELIGIOUS SOCIETIES CONTROL BY CIVIL COURTS LIABILITY FOR EXCLUSION OF A MEMBER. — A minister of the Episcopal Church refused to administer the Communion to the plaintiff. By the canons of the Church, a minister is given authority to refuse the rite to those whom he "deems open, notorious, evil livers, or to have done any wrong to his neighbors by word or deed." A person thus excluded is given an appeal to the bishop. The plaintiff did not pursue this appeal, but brought an action against the minister to recover damages for the exclusion, and for slander. Held, that she cannot recover. Carter v. Papineau, 53 Bk. & Tr. 287 (Mass.).

In England, the union of church and state gives the secular courts an appellate jurisdiction from the tribunals of the established church. Rex v. Dibdin, [1910] P. D. 57; Thompson v. Dibdin, [1912] A. C. 533. In America, however, when civil rights are not involved, the secular courts have no jurisdiction over ecclesiastical disputes. Fitzgerald v. Robinson, 112 Mass. 371. See Shannon v. Frost, 3 B. Mon. (Ky.) 253, 258. Since church membership affords no interest in the church property, it involves no civil rights, and therefore an expulsion is not a ground for an injunction nor an action in tort.

Dees v. Moss Point Baptist Church, 17 So. 1 (Miss.); Waller v. Howell, 20 Misc. 236, 45 N. Y. Supp. 790. When property rights are involved, however, the courts will inquire whether the expulsion was the act of the proper authorities. Bouldin v. Alexander, 15 Wall. (U. S.) 131. But if there is a right of appeal to a higher ecclesiastical authority, the courts will not give relief until that right has been exhausted. German Reformed Church v. Commonwealth, 3 Pa. St. 282. See McGuire v. Trustees of St. Patrick's Cathedral, 54 Hun 207, 220, 7 N. Y. Supp. 345, 351. Nor will the courts interfere when a member is expelled in accordance with the rules of the church, by which, on becoming a member, he agreed to be bound. Grosvenor v. United Society of Believers, 118 Mass. 78. On all these grounds, the court in the principal case rightly refused to give damages for the expulsion. Again, it is well settled that words spoken in the course of church discipline in the presence of the members of the church, are not actionable. Fitzgerald v. Robinson, 112 Mass. 371; Farnsworth v. Storrs, 5 Cush. (Mass.) 412, 416. By the better view, the protection arises from a conditional privilege, based on the common duty and interest of the members, and is forfeited if malice is shown. See Jarvis v. Hatheway, 3 Johns. (N. Y.) 180; cf. Konkle v. Haven, 140 Mich. 472, 478, 103 N. W. 850, 852.

WAREHOUSEMEN UNIFORM WAREHOUSE RECEIPTS ACT WRONGFUL PLEDGE OF WAREHOUSE RECEIPTS TO INNOCENT PLEDGEE. — In a state where the Uniform Warehouse Receipts Act was in force, X. pledged bills of lading to the A. bank, withdrew the bills on trust receipts, and obtained the goods, which he stored, taking negotiable warehouse receipts. These receipts X. pledged to the B. bank, and later withdrew them on trust receipts. X. became bankrupt. The B. bank petitioned for the recovery of the goods from the trustee in bankruptcy, and the A. bank put in a cross claim, urging that the act should be construed in the light of the former law of the state, by which it was entitled to the property. Held, that the B. bank is entitled to the goods, the Uniform Act being construed liberally to secure uniformity of law. Commercial National Bank of New Orleans v. Canal-Louisiana Bank & Trust Co., Sup. Ct. Off., No. 117.

For a discussion of the construction of Uniform Acts, see NOTES, p. 541.

BOOK REVIEWS

GUIDE TO THE LAW AND LEGAL LITERATURE OF SPAIN. By Thomas W. Palmer, Jr. Washington: Government Printing Office. 1915. pp. 174. This book deals with an important part of one of the most important movements now current. The movement is the attempt to teach the people of one country something about the views and institutions of other countries; and the part of that movement with which this book has to do is the attempt to enable the lawyers of the United States to learn something about the system lying at the basis of the law of Latin America.

Several years ago the Library of Congress began to publish a series of handbooks on foreign law. The plan was elaborated by Mr. Edwin M. Borchard, Librarian of the Supreme Court, and the volume on German law was prepared by him. The present volume follows Mr. Borchard's plan and was prepared under his supervision. The author, Mr. Thomas W. Palmer, Jr., a graduate of the Harvard Law School in the class of 1913, held a Sheldon fellowship from Harvard University in 1913-1914; and this is the fruit of his work while holding the fellowship. The details were collected and arranged by Mr. Palmer in the Supreme Court Library and at the University of Madrid.