Page:Harvard Law Review Volume 8.djvu/250

234 234 HARVARD LAW REVIEW. contrary is held in Ohio, Texas, and New Hampshire. Stevens v. Morse, 47 N. H. 532, (a well considered case which is not referred to by the Maine court,) decides that the statute 13 Eliz. c. 5, on the provisions of which as part of the common law the opinion in the principal case is based, cannot be taken advantage of by subsequent purchasers as it refers in terms to subsequent creditors. The New Hampshire court also objects that the practical result of the doctrine here advocated will be to nullify the well settled rule that a fraudulent conveyance is binding on the grantor and his heirs, by allowing him, subsequent to the fraudulent conveyance, to resell the land to whom he pleases. Partnership — Assumpsit — Implied Promise. — Plaintiff sold horse feed; defendant had been keeper of a livery stable to whom plaintiff had sold on credit, the goodsbeingorderedby defendant's servant Stoever. Subsequently another man. Gore, came to plaintiff and bought feed for the same livery stable, and plaintiff, supposing that defendant was still the owner, continued to supply feed, for price of which this action is brought. Defendant claims that he had previously sold out to Gore. The judge below charged the jury that if defendant and Gore were partners defendant would be liable ; and continues, '" If you find that he was not a partner, that he had sold out in good faith, then it was his duty, as the goods were sold for the same busi- ness at the old stand, to have notified Mr. Shaunce [plaintiff] of the change that had been made in the proprietorship of the place. There is no doubt about that. Mr. McCrystal did take the precaution to inform the landlord, but he seems to have for- gotten to inform the other people." Held, an examination of this record has failed to convince us that there is any substantial error therein. Shaunce v. McCrystal, 29 Atl. Rep. 866 (Pa.), It would have been most satisfactory if the Supreme Court of Pennsylvania had seen fit to state the grounds on which they sustain this charge. Real and Personal Property — Construction of Will. — The testator devised his property both real and personal to his wife, giving her full power " to bar- gain, sell, convey, exchange, or dispose of the same as she may think proper ; but if, at the time of her decease any of my said property shall remain unconsumed, my will is that the same shall be equally divided between my brothers and sisters and their children." The devisee entered, conveyed all the property to the defendant by way of gift, and died. Held, that under the will the widow took only a life estate in the property ; that she held it as a quasi trustee for the remaindermen, having power to dispose of it as she might deem necessary for her support or for the benefit of the estate ; but that by gift or otherwise she could make no conveyance involving a breach of faith toward the remaindermen which would defeat their rights, and that therefore the defendant held the property as trustee for them. Johnson y. Johnson, 38 N. E. Rep. 61 (Ohio). This decision reaches a satisfactory result, and seems to be in line with authority both in Ohio and elsewhere. ' Real Property — Dedication — Right retained by Dedicator. — In 1839 the United States dedicated a piece of land in Chicago to the public, this to be " puD- lic land forever and to remain vacant of buildings." According to an Illinois statute, the plat of the land having been recorded, the fee simple vested in the corporation of the city of Chicago. The defendant is about to divert this land from the purposes for which it was dedicated. Held, that the United States has no legal or equitable right to interfere (Brewer and Brown, JJ. dissenting). United States v. Illinois Central R. R, Co., 15 Sup. Ct. Rep. 1015. The majority opinion seems eminently sound. The dissenting opinion is interesting in that it holds that a dedicator may interfere if land is diverted from the purposes for which he gave it, though he parted with all his interest in the land. The opinion is based mainly on Warren v. Mayor of lyons City, 22 Iowa, 351. It is not inconsistent with the facts of that case that the fee remained in the plaintiff, although the court certainly lay down principles broad enough to cover the present case. Real Property — Prescription — Trees overhanging Neighbor's Land. — Where the defendant, without notice to the plaintiff, cut off branches of the plaintiff's trees which had overhung the defendant's land for more than twenty years, it was held, that the overhanging of the branches was not a trespass, and that no right was acquired by lapse of time ; that the branches might be cut without notice, since no entry on the plaintiff's land was necessary, lemmon v. Webb, L. R. [1894] 3 Ch. D. i. The case is right. The court have no difficulty in deciding that there is no pre- scriptive right, but reach the decision that notice is unnecessary only after long discus- sion. The last point, however, would seem quite as clear as the first, and not to call for so long a consideration.