legal. Trist v. Child, 21 Wall. (U. S.) 441; Rhodes v. City of Tacoma, 97 Wash. 341; 166 Pac. 647; Kaufman v. Catzen, 94 S. E. 388 (W. Va.). Contracts directly or indirectly interfering with the administration of justice are also against public policy. Holsberry v. Clark, 242 Fed. 831; Ives v. Culton, 197 S. W. 619 (Tex. Civ. App.). However, the paramount public policy is to enforce contracts as made. Accordingly the courts hesitate to declare contracts invalid. Cf. Cherry v. City State Bank, 159 Pac. 253 (Okla.); Stuart v. Greenbrier County, 16 W. Va. 95. Especially is this true of contracts alleged to be in unreasonable restraint of trade. Cf. Ford Motor Co. v. Boone, 244 Fed. 335 (1917). But where the purpose or necessary effect of a contract is to corrupt government, or clearly to embarrass the activities of the state in war or peace, it would seem from the above examples to be unenforceable as against public policy. Although unique in its facts, the principal case clearly comes within this principle.

CONTRIBUTORY NEGLIGENCE-DEGREE OF CARE REQUIRED OF CHILDREN EVIDENCE OF PERSONAL ABILITY. Children found dynamite caps in a locker of a steam shovel on the railroad's right of way in a lonesome place in the woods. While the plaintiff, a thirteen-year-old boy, was hammering a cap it exploded and he was injured. Held, on the question of contributory negligence, evidence of his scholarship and knowledge of right and wrong was admissible. Farrand v. Houston & T. C. R. Co., 205 S. W. 905 (Tex.).

A landowner owes no duty to an unperceived, unanticipated trespasser, which was the status of the plaintiff in the present case. Wilmes v. Chicago Gt. Western Ry. Co., 175 Iowa, 101, 156 N. W. 877; Pastorello v. Stone, 89 Conn. 286, 93 Atl. 529. Moreover, this case is not within the attractive nuisance theory because the alleged attractive machinery, the steam shovel, located in a secluded place, did not cause the injury. McDermott v. Burke, 170 Ill. App. 415, 100 N. E. 168. And see O'Connor v. Brucker, 117 Ga. 451, 453, 43 S. E. 731, 732. Aside from the attractive nuisance theory, American courts establish a minimum age as to capacity for contributory negligence; or follow the Roman theory of a conclusive presumption of incapacity for contributory negligence below seven years, and a tentative presumption from seven years to fourteen; or else the courts decide each case on its merits. Casper v. Geck, 185 Ill. App. 155; Chicago, Rock Island, & Pacific Ry. Co. v. Wright, 161 Pac. 1070 (Okla.); Thomas v. Oregon Short Line R. Co., 47 Utah, 394, 154 Pac. 777. While logically a child sui juris should be held to the degree of care of the ordinary reasonable child of its age, the growing tendency is to consider the abilities and experience of each child in determining the degree of care required of him. Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, 63 N. E. 1008. In admitting evidence of the plaintiff's scholarship and knowledge of right and wrong the court follows this tendency.

CORPORATIONS STOCKHOLDERS: INDIVIDUAL LIABILITY ΤΟ CORPORATION AND CREDITORS - EFFECT OF OWNERSHIP OF ENTIRE STOCK BY ANOTHER CORPORATION SUBSIDIARY CORPORATIONS AS AGENTS. A railway company owned the entire stock in a coal company. Of necessity the whole output of the coal company was shipped over said railway company's lines, and there were various contracts relating thereto. A mortgage on the coal company's property was foreclosed and a deficiency judgment rendered. Holders of the bonds, secured by the mortgage, set up this judgment as a claim against the railway company. Held, that the railway company is not liable. New York Trust Co. v. Carpenter, 250 Fed. 668 (C. C. A., 6th Circuit). For a discussion of this case, see NOTES, page 424.

CRIMINAL LAW-ATTEMPTS-THE ESPIONAGE CASES.

The postmaster

of the city of New York, under Title 12, Section 1 of the Espionage Act of

June 15, 1917, excluded the plaintiff's publication from the mails on the grounds that such publication was in violation of Title 1, Section 3 of the same act. Plaintiff sought an injunction. Held, refused. The Masses Pub. Co. v. Patten, 246 Fed. 24 (C. C. A., 2d Circuit).

For a discussion of the principles involved, see NOTES, page 417.

DAMAGES BREACH OF CONTRACT — LOSS OF PUBLICITY. The plaintiff was an artist of rising renown, and had entered into a four-year contract with the defendant, the conductor of a well-known London music hall. There was no express term assuring the plaintiff opportunity to perform. But other clauses provided that the artist should not, for specified periods, perform at any other place of amusement within a specified radius of the music hall, etc. Defendant repudiated the contract during the first year of its intended duration, and the plaintiff sues for loss of salary and loss of publicity. Held, damages for loss of publicity are too remote to be recoverable. Tuppin v. Victoria Palace, Limited, [1918] 2 K. B. 539.

For breach of contract damages are either those naturally resultant, or what might reasonably be supposed to have been in the contemplation of both parties, at the time they contracted, as the probable result of the breach of it. Hadley v. Baxendale, 9 Exch. 341. But express terms are not necessary. Marzetti v. Williams, 1 B. & A. 415, 423. A contemplated term of contract is often inadvertently omitted where the happening of the event is unlikely, or where the term does not favor the party drawing up the contract. In saying that the contract is a good business arrangement without such contemplated term, the court fails to appreciate the importance of the contemplation of the parties. The peculiar value of publicity to a rising artist of such an engagement, in a city known as the key to artistic fame, is beyond question. Moreover, the articles of contract contemplate action, not inaction. Though perfectly possible for a contract to contemplate a "pinch hitter" or an "understudy" whose services are to be solely within the discretion of the employer, the principal case warrants a contrary decision. The exact point raised in the principal case was essential to the decision of a case of recognized authority and therein the peculiar situation of an actor was distinguished. Fletcher v. Montgomery, 33 Beav. 22. In failing to distinguish between the purely incidental tortious element in breach of contract and a uniquely valuable consideration, the court unfortunately contradicted the good precedents it admits as law, and, in an important case, drew the line on the wrong side.

ELECTIONS INELIGIBILITY OF CANDIDATE RECEIVING HIGHEST VOTE NOTICE TO ELECTORS. The Direct Primary Law provided that no candidate who failed to receive the highest number of votes for the nomination of the political party with which he was affiliated thirty-five days before election should be entitled to be the candidate of any other political party. (1917 CAL. STATS. 1356). The candidate in question failed to receive the highest number of votes as candidate for Republican nominee, but did receive the highest number of votes as candidate for Democratic nominee. Held, that there was no nomination by the Democratic party. Heney v. Jordan, 175 Pac. 402 (Cal.).

The English and American authorities are agreed that if the candidate at an election who receives the highest number of votes is ineligible, and his ineligibility is not known to the voters at the time of casting their votes, such votes are not considered as nullities, but are effective to prevent the election of the candidate receiving the next highest number. The King v. Bridge, 1 M. & S. 76; The Queen v. Hiorns 7, A. & E. 960; State ex rel. Goodell v. McGeary, 69 Vt. 461, 38 Atl. 165; Heald v. Payson, 110 Me. 204, 85

Atl. 576. Some English and Irish cases, however, hold that if the electors merely have notice of the facts on which the candidate's ineligibility is based, they are presumed to know the law, and votes cast for such candidate are considered as thrown away. Trench v. Nolan, Ir. R. 6 C. L. 464; BeresfordHope v. Lady Sandhurst, 23 Q. B. D. 79. See Drinkwater v. Deakin, L. R. 9 C. P. 626. Cf. The Queen v. Mayor of Tewkesbury, L. R. 3 Q. B. 629. In the United States, however, votes cast for an ineligible candidate are not considered as nullities unless the electors are aware not only of the facts creating the disqualification but also of the law which makes the facts operate to disqualify. People ex rel. Furman v. Clute, 50 N. Y. 451; Woll v. Jensen, 36 N. D. 250, 162 N. W. 403; Sanders v. Rice, 102 Atl. 914 (R. I.). Contra Gulick v. New, 14 Ind. 93. Cf. State ex rel. Clawson v. Bell, 169 Ind. 61, 82 N. E. 69. Under the primary law in the principal case, the candidate who was duly affiliated with the Republican party could become Democratic nominee only if he also became Republican nominee. Nevertheless, at the time the votes were cast, the candidate in question was conditionally eligible and so, it seems, the court properly treated the votes cast for the highest candidate as effective to prevent the election of the next highest candidate. See 24 HARV. L. REV. 393.

INJUNCTIONS INTERFERENCE WITH EMPLOYMENT.

The plaintiff sought

to restrain a Local Draft Board from certifying him for military service, claiming as a basis for equity jurisdiction, that the interruption of his employment would deprive him of a property right. Held, that the right of employment is in no sense a property right. Bonifaci v. Thompson, 252 Fed. 878 (Dist. Ct. W. D. Wash. N. D.).

In labor controversies, one's employment is considered a property interest and an interference may be enjoined at the instance of the employee, though there be no contract of employment. Erdman v. Mitchell, 207 Pa. St. 79, 56 Atl. 327; Fairbanks v. McDonald, 219 Mass. 291, 106 N. E. 1000. Further, it has been held unconstitutional for a statute to provide that the right to do work as an employee shall be construed to be a personal and not a property right. Bogni v. Perrotti, 224 Mass. 152, 112 N. E. 853. Had the plaintiff been pursuing some occupation, an interference would also warrant an injunction.

Grannan v. Westchester Racing Assn., 16 App. Div. 8, 44 N. Y. Supp. 790. The plaintiff may have held a public office, in which case no property interest would be involved. Butler v. Pa., 10 How. (U. S.) 402. But to insist that the right to an employment in general is not based on a property interest seems to be placing too narrow a construction on the term "property." See Pound, "Equitable Relief Against Defamation and Injuries to Personality," 29 HARV. L. REV. 640. The decision, however, may be upheld on the ground that the court would not interfere with a board exercising functions under another department of the government.

JUDGMENTS RES ADJUDICATA - JURISDICTION - DIVERSITY OF CITIZENSHIP. - The county of X in Missouri issued certain bonds. Y, a citizen of another state, sued on the bonds in a federal court, though the real owners were citizens of Missouri. Y secured judgment and kept it alive by subsequent judgments thereon. The last judgment was assigned to the relators, who applied for a writ of mandamus to compel the county judges to levy for and pay the last judgment. The defendants claim the judgments are void because of the colorable diversity of citizenship. Held, the writ will issue. Bunch v. United States, 252 Fed. 673 (C. C. A., 8th Circuit, Mo.).

In a second suit between the same parties, and on the same cause of action, every matter which had or might have been offered as a defense is ren

dered res adjudicata by a former judgment on the merits. St. Louis K. C. & C. R. R. Co. v. Wabash R. Co., 152 Fed. 849; Dowell v. Applegate, 152 U. S. 327. But the defense of lack of jurisdiction is ordinarily not rendered res adjudicata. The judgment would be void. See 32 HARV. L. REV. 177. A decree, however, of a federal court lacking jurisdiction only because of no diversity of citizenship is not a mere nullity. McCormick v. Sullivant, 10 Wheat. (U. S.) 192; Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 552. The principal case would be correct even if such a decree were held void. On this assumption it would follow that if one of the parties fraudulently represented he was a citizen of another state, the judgment could be assailed collaterally. See 32 HARV. L. REV. 177. In the principal case, however, the parties actually were of diverse citizenship. The fraud related only to the actual ownership of the bonds. Furthermore, the case can be decided on a still shorter ground. There was a series of judgments. Even if the first judgment was void for want of jurisdiction, its owner, Y, was a nonresident and could give the federal courts jurisdiction to render a second judgment.

LEGACIES AND DEVISES - EXECUTORY DEVISES CONDITIONED ON FAILURE TO ALIENATE A FEE.-Testatrix devised property to A in fee with a gift over to B of all that remained at A's death. A predeceased the testatrix. Held, B is entitled to the property. In Re Dunstan, [1918] 2 Ch. 304.

Where an absolute devise or bequest of realty or personalty is made, a limitation on the gift is void. After an absolute interest nothing remains to be given the limitation is repugnant. Van Horne v. Campbell, 100 N. Y. 287, 3 N. E. 316; Burton v. Gagnon, 180 Ill. 345, 54 N. E. 279. This is a doubtful rule, for the argument of repugnancy is meaningless. Furthermore a limitation over on a virtually absolute estate is valid where said estate is a life interest with a power of alienation. Komp v. Thomas, 81 N. J. Eq. 103, 85 Atl. 815; Harlow v. Bailey, 189 Mass. 208, 75 N. E. 259. So the court in the principal case properly rejected the repugnancy doctrine where it had the loophole that the first donee predeceased the testatrix-a view having judicial support. Norris v. Beyea, 13 N. Y. 273. See 2 REDFIELD, WILLS, § 278. This is manifestly a departure from the rule first alluded to and one that is plainly justifiable and ought to be extended to the case where the first donee does not predecease the testator or testatrix.

POWERS EXECUTION OF POWER OF APPOINTMENT BY GENERAL DEVISE OR BEQUEST. — The testatrix in her will bequeathed "all my shares in the Halifax New Market Consolidated Stock Co." to a certain legatee and devised and bequeathed "all my real estate and all the residue of my personal property including any property over which I may have at the time of my death an absolute power of appointment to my trustees" upon certain trusts. The testatrix owned in her own name only part of the designated stock and possessed a general power of appointment over the remainder. Held, that the specific legatee is entitled to the stock covered by the power as against the residuary legatees. Re Doherty-Waterhouse, 119 L. T. R. 298 (1918).

At common law a general devise or bequest did not operate as the execution of a power of appointment unless such intention was in some way expressed in the will. Hughes v. Turner, 3 M. & K. 666; Bennett v. Aburrow, 8 Ves. Jr. 609; Hollister v. Shaw, 46 Conn. 248; Patterson v. Wilson, 64 Md. 193, 1 Atl. 68. A devise of realty which could not take effect except upon property comprised in the power, was a sufficient indication of intention to exercise the power. Standen v. Standen, 2 Ves. Jr. 589; Stevens v. Bagwell, 15 Ves. Jr. 139; Keefer v.

Schwartz, 47 Pa. 503. But with personalty, the court could not look beyond the will and no examination into the circumstances of the testator's property was permitted. Nannock v. Horton, 7 Ves. Jr. 391; Jones v. Tucker, 2 Mer. 533. Contra, White v. Hicks, 33 N. Y. 383. However, the Wills Act and similar legislation in this country reversed the common-law presumption, and today a testamentary gift described generally operates as an exercise of a power unless the contrary intention is shown. 7 Wм. IV & 1 VICT., C. 26, § 27; 1 N. Y. REV. STAT. 737, chap. 126, KY. GEN. STAT. 1888, chap. 113, § 22. Some jurisdictions have reached the same result without the aid of a statute. Amory v. Meredith, 7 Allen (Mass.) 397; Emery v. Haven, 67 N. H. 503, 35 Atl. 940. Limited powers, however, remain unaffected by the statutes and as to them the common law still applies. Re Huddleston, [1894] 3 Ch. 595; Re Wilkinson, [1910] 2 Ch. 216; Re Glassington, [1906] 2 Ch. 305. The principal case is clearly within the provision of the Wills Act and presents solely the question whether there was a contrary intention expressed in the residuary clause sufficient to rebut the presumption that the bequest of the stock was meant as an execution of the power. The court in deciding the question in the negative seems to have reached the correct result.

PRINCIPAL AND SURETY-JOINT AND SEVERAL CONTINUING GUARANTEE NOTICE TO CREDITOR OF DEATH OF GUARANTOR DISCHARGE OF GUARANTOR. — In consideration of C's agreeing or continuing to deal with P, the undersigned, G and five others, jointly and severally guaranteed payment of P's liabilities to C, present and future, and agreed that it should be a continuing guarantee until the undersigned or the executors or administrators of the undersigned should give notice not to make further advances. C was not bound to extend credit. G died and his executor gave notice purporting to terminate the liability of the estate under the guarantee. Subsequent to this further advances were made to P. Held, that the estate of G is liable until each and all of them, or their respective executors or administrators should give notice of termination. Egbert v. National Crown Bank, L. R., [1918] A. C. 903.

A mere guarantee of advances, no present consideration being given, is but an offer for successive unilateral contracts which the death of the offeror ipso facto terminates. Aiken v. Lang's Adm'r, 106 Ky. 652, 51 S. W. 154; Hyland v. Habich, 150 Mass. 112, 22 N. E. 765. But where a contract has been made, death does not terminate it. Kernochen v. Murray, 111 N. Y. 306, 18 N. E. 868; Lloyds v. Harper, L. R. 16 Ch. D. 290. See 13 HARV. L. REV. 216. Losing sight of this fundamental distinction seems to have led to confusion. Thus, mere guarantees have been called contracts terminable upon notice of death either by reading such a limitation into the contract or by holding the consideration divisible. Dodd v. Whalen, [1897] 1 Ir. 575; Ascherson v. Tredegar Dry Dock and Wharf Co., [1909] 2 Ch. 401; Valentine v. Donohoe-Kelly Banking Co., 133 Cal. 191, 65 Pac. 381. Where the guarantee is under seal, as an offer is merely intended, the seal, in this country, will not prevent its termination by the death of the guarantor. Jordon v. Dobbins, 122 Mass. 168. But some courts will require notice to the creditor. Gay v. Ward, 67 Conn. 147, 34 Atl. 1025; National Eagle Bank v. Hunt, 16 R. I. 148, 13 Atl. 115. Where, however, there is a binding contract for a definite time the only possible remedy would seem to be on equitable grounds; equity will prevent a forfeiture, unnecessary damages must be avoided. See 30 HARV. L. REV. 494. In the principal case a contract was apparently intended, but the consideration being illusory a mere offer resulted, which was ipso facto terminated by the guarantor's death. But assuming a valid contract, the doctrine of Dodd v. Whalen is inapplicable, as here notice by the guarantors or their executors is provided for. Accord