Page:Harvard Law Review Volume 10.djvu/336

310 310 HARVARD LAW REVIEW. that the title remained in the vendor simply as security, a sort of chattel mortgage. Chicago Railway Equipment Co. v. Merchants' Bank, 136 U. S. 268. The privilege' of option should not shift the liability of loss from vendee to vendor. Had the veiidte agreed to take the pony if he hked it, instead of agreeing to give it up if he did not like it, the loss would have been on the vendor. Carter v. Wallace, 42 N, Y. 190; Hunt V. Wynian, 100 Mass. 198. The court, however, seem to have lost sight of this distinction, although the facts are somewhat meagrely reported. Carriers — Limiting Liability — Express Messengers. — Held,X a carrier can lawfully contract to be free from all liability for injuries that may negligently be done to an express messenger. R. R. Co. v. Keefer, 44 N. E. Rep. 796 (Ind ). As it is absolutely necessary that railroads, as public servants, should conduct their business with the utmost care, most courts do not allow them by contract with their passengers to do away with all liability for injury. The Indiana court holds that this restriction should not apply to contracts with express companies, since they have no common law right to demand carriage. Express Cases, 117 U. S. i. These cases were treated as if expressmen only were concerned, and it was said that railroads had never held themselves out as carriers of express companies. The vital question, whether the public interest demanded that these companies should have a right to accommodation on trains, was not considered. But assuming that these decisions were not inconsistent with the carrier's duty to the public, though the weight of authoiity is contra, it would seem that, if carriers do agree to take expressmen, they should carry them on the same conditions that they carry others. This does not prevent a contract that the railroad should not be liable for injury caused by plaintiff's employment in the baggage car. See Bates v. R. R. Co., 147 Mass. 215. Carriers — Negligent Delay — Act of God. — Held, ihzt a carrier is respon- sible for the loss of goods which he negligently shipped late, although they were destroyed by act of God. Wald v. Pittsburgh R. R., 44 N. E. Rep. 888 (111.). In cases of deviation, where loss could not have been expected to result, the carrier is nevertheless liable ; he has intermeddled with the goods. The doctrine that the same should be true of delay was applied in Reed v. Spaulding, 30 N. Y. 630; but it may well be argued that the rule should not apply to a mere nonfeasance. Moieover, the carrier was held liable for deviation because all insurance was thereby forfeited, a reason that does not exist where the carrier has been dilatory in shipping. T his ques- tion however does not arise in the principal case, since the carrier was not delaying at the time of the accident. After transportation in due course has begun, he can only be liable on the doctrines of legal cause, and this loss was not the natural and probable consequence of the delay. The decisions in New York and Missouri are m accord ih. the principal case; those in Massachusetts, Pennsylvania, and the United States courts are contra. Conflict of Laws — Execution of Power — Domicil. — Property was set- tled on A for life, with power of appointment by will. The settlement was made in England, and all the parties to it had at the time English domicils. Later A acquired a French domicil, and executed a will, purporting to exercise the power of appoint- ment. The will was valid according to English, but invalid according to French law. Held, the power was well exercised. In the Goods of Huber, [1896] P. 209. It is the general rule that a will is good or bad, as to its formal requirements, ac- cording to the law of the testator's domicil at the time of his death. There would seem to be no sufficient reason why any exception to this rule should be made, when the will, instead of being a direct disposition of property, is the exercise of a power of appointment. Dicey's Conflict of Laws, 703. But in the latter case it is settled in England, if the property be personalty, that the will of the donee is a good exercise of the power, whether the will conform to the law of the donee's domicil, U Huart v. Harkness, 34 Beav. 324; or to that of the donor, In the Goods of Alexander, 29 L. J. (P. & M.) 93. It was on the authority of the last named decision that the principal case was decided, the court recognizing that its holding was wrong on principle. In America precisely this question does not seem to have arisen. But two decisions in cases closely analogous appear to indicate that the United States courts disregard the law of the domicil of the donee entirely in determining whether a power of appoint- ment has been duly exercised by will, looking only to the domicil of the donor. Bing- ham'' s Appeal, 64 Pa. .St. 345; Cotting v. De Sartiges, 17 R. I 668. This involves a still greater departure from principle. Cf. Sewallv. Wilmer, 132 Mass. 131. Conflict of Laws — Validity of Contract. — A resident of Pennsylvania, on application made in that State to an agent of a New York building and loan asso- ciation, became a member thereof, and obtained a loan from it, giving notes and bond therefor, secured by mortgages on Pennsylvania lands, all the instruments describing