Page:Harvard Law Review Volume 9.djvu/377

349 NOTES. 349 that contributed to make the majority report of the Massachusetts Commis- sion in 1892 objectionable. It may be questioned, however, if the act in its faihire to make registration compulsory does not stop short of effecting the best results. The option given to landholders to transfer by deed as hereto- fore, or by record of title, is in effect the establishment of a dual system of transfer. Such a system was emphatically pronounced " unworkable " by an English Commission in 1868. Even though the dual system be not unwork- able, compulsory registration of title possesses marked advantages. It cer- tainly hastens the time when all land titles shall be conclusively evidenced by registration. Information as to the working of the Illinois act will be eagerly awaited. In a recent note on Greenwood Ice &> Coal Qo. v. Georgia Home Ins, Co.^ 17 So. Rep. 83 (Miss), 9 Harvard ].aw Review, 218, the case of* Neiv York Central Ins. Co. v. National Frotectioji Ins. Co., 14 N. Y. 85, was cited, but the following recent New York decisions which have kindly been furnished by the Hon. William M. Ross of the Onondaga County bench were overlooked: Pratt v. The Insurance Co.., 130 N. Y. 206; Empire State lis. Co. v. American Central Ins. Co., 138 N. Y. 446 ; Knaus V. Gottfried Krueger Brewing Cc, 142 N. Y. 70; Bank of Neiu York Ass' n. V. American Dock <^ Trust Co., 143 N. Y. 559. An examination of these cases shows that the test now applied by the New York courts as to whether an agent may represent both parties is whether or not he is invested with discretion. No other jurisdictions seem to have recognized this distinction. Contracts made by the agent as repre- senting both parties are held voidable, regardless of lack of discretion in the agent, and the agent is not allowed to recover commission from either party in absence of their knowledge of the dual agency. Connel. Smith, 142 Pa. St. 25 ; Pice v. IVood, 113 Mass. 133 ; Berlin v. Farwell, 31 Pac. Rep. 527 (Cal.) ; Belly. McCon?iell, 37 Ohio St. 396 ; Kro?ienbergerw. Fricke, 22 III. App. 550; Salomons v. Fender, 34 L. J. Ex. 95. But see Ha7n7?iond v. Bookivalter, 39 N. E. Rep. 872 (Ind.). The test of discretion is distinctly repudiated in Porter v. Woodruff, 36 N. J. Eq. 174, and Hansen v. Williams, 55 N. W. Rep. 279 (Neb.). As to the agent's right to commission from both parties where he simply introduces them and they make their own contract, see Montraso v. Eddy, 94 Mich. 100; Green v. Robertson, 64 Cal. 75. Issue Living — Child en Ventre sa Mt:RE. — /// re Burrows, [1895] 2 Ch. 497, a recent English case, raises a point of interest and significance. The case turned upon the construction of a will, which devised property to A for life, and upon her death to B, for her absolute use and benefit in case she have issue living at the death of A ; " but in case she has no issue then living," then over. At the time of A's death, B was encei?ite, and the follow- ing day gave birth to a living child. The question thus sharply presented on the facts was, whether the child en ventre sa m^re was ** issue living " within the meaning of the will. Chitty, J., who sat as judge, refusing to distinguish between " child " and " issue " as an over-refinement, held that the child was to be deemed living at the death of A, for the benefit, not of the child, but of B.