Page:Harvard Law Review Volume 12.djvu/456

436 436 HARVARD LAW REVIEW. retains the title to the land. Porter v. The Midland, R. R. Co., 125 Ind. 476; Thornton V. Cairo &= Fulton R. R. Co., 31 Ark. 394. A railroad is charged with duties to the public, and, for the sake of the public interests involved, an individual, in a case like the present one, will be restricted to such remedies for the wrong done him as will not interfere with the rights of the public to have the railroad maintained and operated. The case will naturally be different when the owner has not acquiesced in the act of the railroad company, but has, at all times, used reasonable diligence to protect this property from the unlawful entry. Denver &= S. F. R. R. Co. v. School Dist. No. 22, 14 Colo. 327. In actions between individuals, the public interest not being involved, this principle would, of course, be inapplicable. Alston v. Wingfield, 53 Ga. 18; McDaniel V. Cray, 69 Ga. 433. Property — Injunction — Common-Law Copyright. — Complainant society filed a bill to enjoin defendants from using, as an advertisement of a medicine, extracts from a committee report read at a meeting of complainant society. By affidavits it appeared that persons were present at the meeting who were not members, but it did not appear that the meeting was open to the general public. On a motion for a pre- liminary injunction upon the affidavits, held, that publication of the report is not shown, and complainant is entitled to the relief asked. New Jersey State Dental Society v. Den- ticura Co., 41 Atl. Rep. 672 (N. J., Ch.). A common law right of property in an unpublished writing, whatever may be the theoretical objections to it, is generally recognized in this country. Tompkins v. Hal- leck, 133 Mass. 32. But cf. Parke, B., in Jefferys v. Boosey, 4 H. L. Cas. 815, 919. Publication then is held to dedicate this property to the public. No such dedication is found in the principal case, and the conclusion seems correct. Too much stress is perhaps laid on complainant's intention not to dedicate; no one who publishes a book intends to part with the work itself, as a piece of literary workmanship. Nor is the fiduciary position of the hearers of much importance as touching the mere fact of pub- lication. The owner of the writing is the person to look at; what he did is the ques- tion. Under all the circumstances, the act of complainant society in the principal case hardly constitutes an abandonment to the public at large. See 12 Harv. Law Rev. 51. Property — Ways of Necessity. — The plaintiff's land was entirely surrounded by the defendant's park. The sole mode of access was by a highway, and the highway was later extinguished by the proper authorities. Held, that the plaintiff has no right to a way of necessity over the defendant's land. Ellis v. Blue Molintain Forest Assn., 41 Atl. Rep. 856 (N. H.). See Notes. Quasi-Contracts — Money Paid for Illegal Purposes. — The defendant falsely represented to the plaintiff that a criminal prosecution had been instituted against the latter, and obtained money from him to bribe the prosecuting officer to stop proceedings. Held, that the plaintiff can recover the money. Smith v. Blachley, 41 Atl. Rep. 619 (Pa.). The decision seems correct. The plaintiff's illegal intention in giving the money to the defendant should not bar his recovery unless it is against public policy. The test applied by the courts in similar cases seems to be, whether recovery will give effect to the illegal transaction, or whether it will prevent its performance. Thus in the analo- gous case of money paid under an illegal contract, it is generally held that the money can be recovered at any time before the contract is performed. Spring Co. v. KnowU ton, 103 U. S. 49; Duval v. Wellman, 124 N. Y. 156; Taylor v. Bowers, i Q. B. D. 300. But when the illegal transaction is partly or wholly performed, the courts will not allow either party to take advantage of its illegality, and therefore money paid under it cannot be recovered. Kearley v. Thomson, 24 Q. B. D. 742; Tyler v. Carlisle, 79 Me. 210. In the principal case the money had never been applied as the defend- ant represented, and since the plaintiff did not rely on any illegal contract, and the transaction was still unperformed, recovery was properly allowed. Catts v. Phalen, 2 How. 376. Receivership — Equitable Charge on Income. — A telegraph and telephone company went into the hands of a receiver. Held, that operators have a claim against the company, for wages for ninety days preceding the appointment of the receiver, superior to the lien of the mortgage debt. Keelyn v. Carolina, etc. Telegraph Co., 90 Fed. Rep. 29 (Cir. Ct., S. C). This decision extends to telegraph companies a doctrine heretofore applied only to railroad companies. The leading case, illustrative of the principle, which is of very recent growth, its Fosdick v. Schall, 99 U. S. 235. A railroad is deemed of such great