Page:Harvard Law Review Volume 8.djvu/306

290 290 HARVARD LAW REVIEW. This exception to the general rule, that interest on a legacy does not begin to riTn until one year from testator's death, is well established in New York and Massachu- setts, but has not obtained a footing elsewhere. ■ The United States courts, England, Pennsylvania, and New Jersey have refused to recognize it. On principle, there is not the same reason for allowing interest in this case as in the case of a legacy for the maintenance of children; for the wife, having her election to claim dower, or the legacy if she chooses the latter, ought to take it as any other adult legatee would. Property — Wills — Proof of Execution. — A will was signed in handwriting not testator's. It was attested by the requisite number of witnesses, before whom tes- tator had acknowledged it to be his will. Held, that there was evidence from which a jury might find that the will was signed by a third person in testator's presence, as re- quired by statute, MacFarlane, J., dissenting. Walton v. Ketidrick, 27 S. W. Rep. 872 (Mo.). The reasoning of the majority is that an acknowledgment of the will to attesting witnesses is just as effectual to prove that the will was signed by a third person in tes- tator's presence as that it was signed by testator himself. This is unsound. The acknowledgment only makes out 2l. prima facie case that testator signed the will ; and if there is evidence, as here, that testator did not sign, then the proponent of the will is under the duty of establishing that he did sign or did what was by statute equivalent to signing. This, proponent has here utterly failed to do, having offered no evidence at all having the slightest tendency to prove the execution. Torts — Contributory Negligence. — Held, that certain facts, although strong evidence, do not constitute contributory negligence per se. Doctrine of comparative negligence repudiated. North Chicago St. R. Co. v. Eldridge, 38 N. E. Rep. 246 (111.). See Notes. Torts — Imputed Negligence. — In an action for injuries to the plaintiffs wife, caused by negligence of defendant company together with the negligence of the wife, held, that in a State where the wife has been released from her common-law restric- tions, and the husband from all responsibility for the wife's torts, her contributory negligence will bar the husband's action. C. B. d^ Q. R'y Co. v. Honey, 63 Fed. Rep. 39 (Iowa). The Circuit Court of Appeals reverse the decision of the Circuit Court in this case, which was reported in 59 Fed. Rep. 423, and was mentioned among the recent cases, 8 Harvard Law Review, d},- Tort — Negligence — Action to recover Damages for Personal Injuries. — An action to recover damages for injuries received through the negligence of a rail- way porter is an action founded on tort within the meaning of the County Courts Act. Taylor v. M. S. &• L. R'y, 11 The Times Law Rep. 27. This case furnishes an illustration of the difficulties which frequently confront judges in the application of legislative innovations in procedure. Every one knows that there is a border-land between torts and contracts, and that the best minds may differ as to the division in which a given case properly falls. The progress of assump- sit and of detinue from the one fold to the other is a good example of the yielding nature of their boundaries. Pollock on Torts, Appendix A. But in the English County Courts Act of i486, the antithesis is sharply drawn, and costs taxed differently as the action is " founded on contract " or " founded on tort," and this distinction is preserved in all the amendments of the Act. The judges are therefore called upon repeatedly to say whether causes sound in contract or tort which may belong in either or neither, and to settle questions which could not have arisen at all under the old forms of action. In the present case the decision seems clearly correct. There is no reason why a railway should escape liability in tort for active misfeasance because it happens to be liable also in contract, if the passenger prefers to put his case upon that ground ; and as in modern English procedure the nature of the complaint is gathered from the state- ment of facts, the plaintiff should be entitled to that construction most favorable to himself. It is by no means clear, however, that misfeasance by a common carrier may be regarded as a tort at election; and there is eminent authority to the effect that such injury is in its nature essentially a breach of contract. Holland on Jurisprudence, 222, 223. Torts — Negligence — Bursting Sewer — Liability of Contractor. — De- fendant, a sewer contractor, agreed that the work should be performed in accordance with certain plans, and that the city engineer should have supervision and management of the construction, — the city reserving not only the power of changing the specifica- tions as the engineer should see fit, but also a control over the manner of performing the work. The construction-trench was lined with planking to prevent caving. The