fact taken control of commerce between points in the same state passing through another state. Authority is abundant to the effect that the provisions of the Act as to rates apply to such commerce. United States v. Delaware, L. & W. R. Co., 152 Fed. 269; Chicago, St. P., M.&O. Ry. Co. v. United States, 162 Fed. 835; Milk Producers' Ass'n v. Delaware, L. & W. R. Co., 7 I. C. C. 92. These cases rely on the words of § 1, defining the scope of the Act, "from one State . . . to any other State, provided that the provisions of this Act shall not apply to transportation . . wholly within one State." The language of the Carmack Amendment is as broad and should not be construed to have a less comprehensive scope. The narrow interpretation adopted in the principal case defeats the uniformity which Congress presumably sought to secure, and it is submitted that it would be much preferable to construe the Amendment broadly to cover this as well as other kinds of interstate commerce.

INTERSTATE COMMERCE — INTERSTATE COMMERCE COMMISSION - POWER TO INSPECT CORRESPONDENCE OF CARRIERS. While engaged, in response to a resolution of the Senate, in investigating alleged financial and political practices of the defendant railroad, the Interstate Commerce Commission requested the railroad to give the examiners access to its correspondence files. The defendant refused. Held, that there was no error in refusing a mandamus to compel the railroad to give such access. United States v. Louisville & Nashville R. Co., Sup. Ct. Off., No. 499 (Feb. 23, 1915).

As an investigating body the Interstate Commerce Commission has broad and not very well-defined powers and duties. Under Section 12 of the Interstate Commerce Act, it may, by compelling attendance of witnesses and production of books and papers, call for such information as it needs to carry out the purposes for which it was created. 4 U. S. COMP. STAT. 1913, § 8576. This section gives merely a judicial power to call for papers by subpoena, not a power to inspect them through examiners; and constitutional doubts have led the Supreme Court to hold that the inquisitorial power may be used only in aid of the quasi-judicial functions of the Commission. Harriman v. Interstate Commerce Commission, 211 U. S. 407. Section 20 of the Act empowers the Commission to prescribe the forms of accounting and traffic records, and gives its agents access to the "accounts, records and memoranda" of the carriers. 4 U. S. COMP. STAT. 1913, § 8592 (5). As to records of an accounting nature, this section has been given the broadest possible construction. See Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194. It seems clear, however, that it was intended to apply only to traffic and accounting records, and not to correspondence files; it was certainly so understood by the Commission, which itself drafted and recommended the provision. See 19th ANNUAL REPORT, I. C. C., pp. 11, 182. There was nothing in the Act, therefore, to justify the roving commission sought in the principal case. See also United States v. Nashville, C. & St. L. Ry., 217 Fed. 254.

JOINT-WRONGDOERS

INDEMNITY: PARTIES NOT IN PARI DELICTO. A colt was injured by a strand of barbed wire which was permitted to trail into the highway by reason of the negligence of both the township and the owner of the adjacent land. The township, having been compelled to pay a judgment for damages to the owner of the colt, brings an action over against the landowner. Held, that it may recover. College Township v. Fishburn, 72 Leg. Intell. 34 (Dist. Ct., Pa.).

The decision assumes the doctrine not generally accepted elsewhere that a mere township is under the same liability as a municipality for negligent maintenance of a highway. On this basis, it permits the township, in accordance with the usual rule, to recover over against the person who negligently created or continued the dangerous condition which caused the damage for which it

had to answer. Washington Gas Light Co. v. District of Columbia, 161 U. S. 316; Inhabitants of Westfield v. Mayo, 122 Mass. 100; City of Astoria v. Astoria & C. R. Co., 67 Ore. 538, 136 Pac. 645; see 4 DILLON, MUNICIPAL CORPORATIONS, 5 ed., §§ 1727-1730; BISHOP, NON-CONTRACT LAW, § 535. In situations of this character, although the negligent parties may be jointly liable to third persons, as between themselves they are not in pari delicto, for one merely stands sponsor for the exercise of due care by the other, and the one subject to the primary duty incurs the ultimate liability. Gray v. Boston Gaslight Co., 114 Mass. 149; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461, 31 N. E. 987, 144 N. Y. 663, 39 N. E. 360; Central of Georgia R. Co. v. Macon Ry. & Light Co., 140 Ga. 309, 78 S. E. 931. Despite the concurring breach of duty, the principles of contributory negligence do not apply, for the right to indemnity is determined, not by comparing the efficiency of the negligence of each in causing the resulting loss, but by ascertaining the duties of the wrongdoers inter se. See 21 HARV. L. REV. 233, 242. But cf. Nashua Steel and Iron Co. v. Worcester & Nashua R. Co., 62 N. H. 159. The result of the principal case is the more easily reached because of the anomalous doctrine of the Pennsylvania courts that the parties here, though equally liable to the outsider, are not chargeable as joint tortfeasors. Dutton v. Borough of Lansdowne, 198 Pa. St. 563, 48 Atl. 494. See Brookville Borough v. Arthurs, 130 Pa. St. 501, 515, 18 Atl. 1076, 1077; 15 HARV. L. REV. 159.

LIBEL AND SLANDER - DEFENSES LIBEL OF BUSINESS CONDUCTED IN VIOLATION OF STATUTE. - The plaintiffs were engaged in the milk business, under the name of "The Lambert Dairy Company," in violation of a statute which made it a misdemeanor to conduct business under an assumed name without filing a certificate showing both the fictitious and the actual names of the participants. The defendant accused the dairy company of selling adulterated milk. The plaintiffs bring an action of libel for injury to the business. Held, that they cannot recover. Williams v. New York Herald Co., 150 N. Y. Supp. 838 (App. Div.).

The statute in the principal case was probably designed to protect creditors and would not of itself be a defense for ordinary tortfeasors. Wood v. Erie R. Co., 72 N. Y. 196. Hence, if the plaintiffs were suing for injury to their individual reputations, it seems that recovery should be allowed. Long v. Chubb, 5 C. & P. 55. This would accord with the general doctrine that a plaintiff's illegal conduct, unless a proximate cause, is no bar to his action. Sutton v. Wauwatosa, 29 Wis. 21. See 18 HARV. L. REV. 505; 27 HARV. L. REV. 317, 338. Even where the action is for damage to the plaintiffs in their business, as in the principal case, their illegality would not be a good defense by way of justification. Rutherford v. Paddock, 180 Mass. 289, 62 N. E. 381. But the breach of the statute does go to the merits of their right to maintain an action. For it seems impracticable to differentiate between an interference with the profits of an illegal business, and with the profits of an otherwise legal business carried on under an unlawful name. The profits, then, being those of an illegal undertaking, the plaintiffs cannot complain that they have been diminished. The cases which deny recovery to an unlicensed physician when his professional reputation is libelled seem closely analogous. Hargan v. Purdy, 93 Ky. 424, 20 S. W. 432; see Collins v. Carnegie, 1 A. & E. 695; Marsh v. Davison, 9 Paige (N. Y.) 580. It is possible that recovery might also be denied on the ground that, towards a business illegally conducted, there exists no duty with regard to the use of words. See Johnson v. Irasburgh, 47 Vt. 28; 27 HARV. L. REV. 317, 339.

LIFE ESTATES

RECOVERY BY LIFE TENANT FOR INJURY TO THE INHERITANCE: RELATION TO LIABILITY FOR PERMISSIVE WASTE. - The plaintiff, a

tenant for life of land, with remainder to another in fee, sues a stranger for injury to the property caused by the stranger's negligence in allowing the fire to spread. Held, that he may recover for the injury both to his interest and to that of the remainderman. Rogers v. Atlantic, Gulf & Pacific Co., 213 N. Y. 246, 107 N. E. 661.

The principal case definitely discards the doctrine of the older cases, which based the life tenant's right to recover for injury to the remainder on the hypothesis that the stranger's negligence rendered the life tenant liable for waste. See Austin v. Hudson R. R. Co., 25 N. Y. 334, 344. Some cases even required actual payment to the remainderman before permitting the particular tenant to recover in full. Wood v. Griffin, 46 N. H. 230, 239. Under the old law, this line of reasoning was possible, for a life tenant was punishable for waste committed by a stranger. Anonymous, FITZ. ABR., WASTE, pl. 30. See ST. OF GLOUCESTER, 6 Edw. I., c. 5. Under modern English law, however, a tenant for life is not liable for permissive waste. In re Cartwright, 41 Ch. D. 532. The same result has been reached in this country as to accidental fires. Sampson v. Grogan, 21 R. I. 174, 42 Atl. 712. See 13 HARV. L. REV. 151. And the principal case, in line with the modern tendency, decides that negligent injury by a stranger does not make the life tenant liable for waste. But it nevertheless permits him to recover full damages, by analogy to the rule which allows a bailee to recover against a wrongdoer, even when not liable to the bailor. See The Winkfield, [1902] P. 42. The analogy is not perfect, for life tenant and remainderman have such distinct estates that each would be expected to recover simply for the injury to his own interest. Zimmerman v. Shreeve, 59 Md. 357; cf. McIntire v. Westmoreland Coal Co., 118 Pa. St. 108. Cf. Rockwood v. Robinson, 159 Mass. 406, 34 N. E. 521. In the ordinary case, moreover, it involves no assertion of the jus tertii for the wrongdoer to set up that the tenant has only a life estate and should be limited accordingly in his recovery. Illinois, etc. Coal Co. v. Cobb, 94 Ill. 55. Procedural convenience, however, affords ample justification for the result of the principal case. It permits the whole controversy to be settled in one action, and at the same time adequately protects the remainderman by imposing a trust in his favor on what the tenant recovers in excess of his own interest.

MASTER AND SERVANT - EMERGENCY DUTY TO SUMMON MEDICAL ASSISTANCE TO INJURED EMPLOYEE. - Plaintiff's intestate, an employee in defendant's stone quarry, was run over by a car which severely crushed and lacerated his leg. The accident occurred without defendant's fault. By reason of the negligent delay of defendant's superintendent in summoning a physician, the employee bled to death. His administrator sues the defendant company. Held, that he may recover. Hunicke v. Meramec Quarry Co., 172 S. W. 43 (Mo.).

For a discussion of this case, see NOTES, p. 607.

NEGLIGENCE — Defenses — INJURY SUSTAINED IN SAVING LIFE ENDANGERED BY ANOTHER'S NEGLIGENCE. - The engineer's negligent handling of a train threatened collision with a caboose in which there were several persons. To avoid this, a brakeman stepped in front of the moving train and attempted to apply the emergency air brake. Held, that he may recover from the railroad for the injuries sustained. Haigh v. Grand Trunk Pacific Ry. Co., 30 West. L. R. 173 (Alberta).

The plaintiff, noticing a train approaching, tried to remove a small push car which he had wrongfully placed upon defendant's tracks, but was injured by reason of negligence on the part of the engineer after discovery of the plaintiff's danger. Held, that the plaintiff may recover. Great Northern Ry. Co. v. Harman, 217 Fed. 959 (C. C. A., 9th Circ.).

Where the plaintiff voluntarily risks his own life in order to save the lives of others imperiled by the wrongful conduct of the defendant, his right of action rests upon the ground that such intervention is foreseeable. Consequently the courts recognize a duty running to the plaintiff to avoid causing such peril to the lives of others as to invite humane rescuers to risk their own safety. Eckert v. Long Island R. Co., 43 N. Y. 502; Dixon v. New York, N. H. & H. Ry. Co., 207 Mass. 126, 92 N. E. 1030. See 24 HARV. L. REV. 407. It is generally said, furthermore, that the rescuer's conduct does not necessarily involve contributory negligence and that he will be denied recovery only if he acted so rashly or recklessly that a jury would deem him unreasonable in taking the risk. Eckert v. Long Island R. Co., supra; Pennsylvania Co. v. Langendorff, 48 Oh. St. 316, 28 N. E. 172. Contra, Anderson v. Northern Ry., 25 U. C. C. P. 301. Cf. Blair v. Grand Rapids L. & D. R. Co., 60 Mich. 124, 26 N. W. 855. In the second principal case, the court relied in part upon the doctrine of "last clear chance." This seems erroneous, in view of the rescuer's ability to step back from the tracks at a time when the defendant is no longer able to avoid the accident. See 27 HARV. L. Rev. 757. In both cases there may be some question upon the facts whether the plaintiff was trying to save life and not merely attempting to avoid the destruction of property. See Condiff v. Kansas City, etc. R. Co., 45 Kan. 256, 25 Pac. 562. See 24 HARV. L. REV. 406. But on this point the cases show a tendency to allow recovery wherever the plaintiff's conduct can reasonably be explained as an effort to prevent loss of human life.

PAROL EVIDENCE SUBSTANTIVE LAW EXPRESSED IN TERMS OF EVIDENCE - CONTRACTS: ADDITION OF A TERM IMPLIED BY CUSTOM. The plaintiff by a written contract licensed the defendant to perform a certain play in the United States and Canada, and brought suit for the royalties accruing under the contract. The defendant offered parol evidence to show a custom in the theatrical business that such licenses were in fact understood to be exclusive. Held, that the evidence was properly excluded. Hart v. Cort, 151 N. Y. Supp. 4 (App. Div.).

It is a well-established principle that parties to a contract on a subject matter concerning which known usages prevail, are deemed to have incorporated such usages by implication into their agreement, if nothing is said to the contrary. Brown v. Byrne, 3 E. & B. 703; Newhall v. Appleton, 114 N. Y. 140, 21 N. E. 105; Atkinson v. Truesdell, 127 N. Y. 230, 27 N. E. 844. But in determining what was the understanding of the parties the court is limited by the rule that whatever by the terms of the writing the parties have either expressly or impliedly excluded, cannot be considered a part of the contract, and it requires no rule of evidence to render such matter incompetent. This should be, it is submitted, the criterion in determining the admissibility of custom and usage. See Webb v. Plummer, 2 B. & Ald. 746, 750; 4 WIGMORE, EVIDENCE, § 2430. Therefore in the principal case, since it does not appear that the writing purported to dispose of the question raised by the evidence offered, it would seem that the custom should be admissible to enable the court to interpret the meaning of the contract. Upon the whole subject the authorities are somewhat confused, but better reason and the weight of authority seem to support the view of the dissenting judges. See 6 HARV. L. REV. 325, 418.

RULE AGAINST PERPETUITIES GENERAL AND PARTICULAR INTENT IN CONNECTION WITH RULE. - The testator left family portraits to "the eldest of my sons who may be living at the decease of my wife and myself in trust to preserve and to be transferred at his death to my next eldest son then alive — and so on through all my sons; and then to the eldest grandson then alive and at his death to the next eldest and so on through all the grandsons." The

plaintiff was alive at the testator's death and was the oldest grandson alive at the death of the first grandson to take. Held, that the plaintiff is entitled to the portraits. Wentworth v. Wentworth, 92 Atl. 733 (N. H.).

The court seems right in treating the plaintiff's interest as contingent. The gift is not one of a succession of life estates to named descendants, but rather a bequest to him who shall fulfill a certain description at a given moment, and until that moment arrives the person is unascertainable. At common law, therefore, limitations to grandsons other than the first one to take would be too remote, since the estates would not necessarily vest within the period of lives in being and twenty-one years. The court admits this, but says that the New Hampshire rule is to carry out the testator's intent as far as possible and hold the gifts good for the lives in being at the testator's death and twenty-one years thereafter. In an earlier case the same court changed a contingent gift to unborn grandchildren at forty into a gift to them at twenty-one and thus sustained the devise. Edgerly v. Barker, 66 N. H. 434, 31 Atl. 900. Professor Gray's criticism of that case makes further censure unnecessary. See 9 HARV. L. REV. 242; GRAY, RULE AGAINST PERPETUITIES, §§ 857-893. The principal case seems to adopt a still more pernicious rule, for while the interest might not have vested until after the prescribed period, the court holds it not too remote simply because it did in fact vest within a proper time.

EQUITY JURISDICTION.

ΤΑΧΑΤΙΟΝ COLLECTION AND ENFORCEMENT The plaintiff, an unpaid holder of bonds of the defendant county, obtained judgment but not satisfaction in a United States District Court. A number of writs of mandamus issued commanding the proper county officers to raise a tax. These officials, however, either evaded service, or "wilfully and defiantly refused to obey," with the result that "the plaintiff is utterly remediless at law by mandamus or otherwise." The plaintiff thereupon asked that a commissioner, or receiver, or other officer, be appointed in equity to levy, collect, and pay over the tax. Missouri statutes in force at the time of the bond issue provided that in addition to regular taxes no other tax for any purpose shall be assessed, levied, or collected" except by order of the circuit court of the county according to a prescribed procedure. Mo. R. S., 1909, §§ 11416-7. Held, that the relief asked will not be given. Yost v. Dallas County, 35 Sup. Ct. 235.1 A discussion of the jurisdiction of the courts to compel the exercise of the taxing power will be found in this issue of the REVIEW, p. 617.

TELEGRAPH AND TELEPHONE COMPANIES — LIABILITY TO ADDRESSEE DISCLOSURE OF MESSAGE: ILLEGAL TRANSACTIONS OF ADDRESSEE AS DEFENSE. - Two telegrams containing no imputation of immorality on their face were shown by the telegraph company's agent to friends of the addressee. One of the messages was also delivered unsealed to his mother, who read it. As a result of these disclosures it became known that the sender was a prostitute and that the addressee was her paramour. His consequent disrepute resulted in the loss of his position and other serious damages. He now sues the telegraph company. Held, that since the action is based on the addressee's own immoral transactions, it will be dismissed. Western Union Tel. Co. v. McLurin, 66 So. 789 (Miss.).

The addressee of a telegram has a right of action against the telegraph company for negligence in regard to the transmission of the message. Western Union Tel. Co. v. Allen, 66 Miss. 549, 6 So. 461; Herron v. Western Union Tel. Co., 90 Ia. 129, 57 N. W. 696; Contra, Playford v. United Kingdom Electric Tel. Co., L. R. 4 Q. B. 706. An addressee may also recover damages for the disclosure of the message. Cock v. Western Union Tel. Co., 84 Miss. 380, 36 So. 392. See Barnes v. Postal Telegraph-Cable Co., 61 N. C. 150, 154. In either case his