126. OFFICERS-Right of Police Board to Suspend.— Where a police board, having power to suspend police officers, passed a rule providing that any member of the police force might be suspended by the chief of police with the approval of the board, a suspension by the board without the consent of the chief was invalid. - Bringgold v. City of Spokane, Wash., 67 Pac. Rep. 612.

127. PARENT AND CHILD-Right of Father to Reclaim Child. Where a father commits custody of infant child to its grandmother, to be maintained, he cannot reclaim custody, unless he can show that the change would promote the child's moral or physical welfare. -Fletcher v. Hickman, W. Va., 40 S. E. Rep. 371.

128. PARTNERSHIP - Application of Debt of Firm Debtor. A firm debtor cannot apply his debt to one due him from an individual partner.-Lewis v. Crane, W. Va., 40 S. E. Rep. 347.

131. PENALTIES Fleading of Defendant. The defendant in a penal action should not be required to file an answer, but should be admitted to plead merely not guilty, as the defendant, under the consti u. tion, cannot be required to give evidence against him. selt.-Louisville & N. R. Co. v. Commonwealth, Ky., 66 S. W. Rep. 505.

182. PLEADING-Substituted Complaints.-A substi tuted complaint, filled in place of the lost original, is presumed to be a true copy of such original, and takes its place as of the date of the original filing.-Pape v. Ferguson, Ind., 62 N. E. Rep. 712.

--

133. PRINCIPAL AND AGENT Agent Authorized to Collect.-An agent authorized merely to collect or receive payment of a debt cannot bind his principal by any arrangement short of actual collection or receipt of the money.-Corbet v. Waller, Wash., 67 Pac. Rep. 567.

134. PRINCIPAL AND AGENT Issuing Money Orders Without Charges.-Employee of agent of express com. pany, receiving money and issuing money orders without payment of usual charges, and absconding, held not to render the principal liable therefor.— Rohrbough v. United States Express Co., W. Va., 40 S. E. Rep. 398.

135. PRINCIPAL AND SURETY-Release by Enlargement of Risk.-Surety on bond held released by enlargement of the risk.-Tradesmen's Nat. Bank v. National Surety Co., N. Y., 62 N. E. Rep. 670.

136. PROCESS-Waiving Terms of Summons.-A pri. vate person, serving a summons under 2 Ballinger's Ann. Codes & St. § 4874, has no authority, unless speciallyauthorized by plaintiff to waive any of the terms of the summons. Washington Mill Co. v. Marks, Wash., 67 Pac. Rep. 565.

138. PROPERTY-Situs of Personalty.- Legal situs of personalty will follow domicile of owner, and the law of the actual situs protects resident creditors only against transfers by operation of law.-Yost v. Graham, W. Va., 40 S. E. Rep. 361.

139. QUIETING TITLE Relieving Mortgage from Cloud.-A mortgagee, after conveying the mortgaged estate with a warranty of title, may maintain a suit to relieve it from a cloud affecting rights under the mort. gage.-City of Indianapolis v. Board of Church Exten:

62 N. E.

sion of United Presbyterian Church, Ind., 6 Rep. 715.

140. RAILROADS.-Center of Right of Way.-A railroad company is not bound to construct its track on the center of its right of way.-Ohio River R. Co. v. John. son, W. Va., 40 S. E. Rep. 407.

141. RAILROADS-Liability for Fires.-In an action for damages from fire by sparks from a locomotive, proof that the railroad company used the best spark ar resters and that the fire did not orignate on the right of way is insufficient to overcome a prima facie case by plaintiff.-San Antonio & A. P. Ry. Co. v. Adams, Tex., 66 S. W. Rep. 578.

142. RAILROADS-Liability for Frightening a Horse.A railroad company may be liable for frightening a horse by locomotive whistle for crossing, required by statute.-Gulf, C. & S. F. Ry. Co. v. Milner, Tex., 66 S. W. Rep. 574.

143. RAILROADS

Overlapping Railroad Grants.Each of two separate railroad companies, to whom by acts of the same date grants of land are made, in so far as their limits conflict by crossing or lapping, take an equal undivided moiety of the lands within the conflict.-Southern Pac. R. Co. v. United States, U. S. S. C., 22 Sup. Ct. Rep. 154.

144. RAILROADS-Running at Prohibited Speed.-Violation of an ordinance prohibiting the rapid running of trains within the city limits held negligence per se, entitling a party Injured thereby to recover.- Gulf, C. & S. F. Ry. Co. v. Matthews, Tex., 66 S. W. Rep. 588.

145. RAILROADS-Violating Ordinance as to Speed.The running of an engine over a street at a speed in excess of that permitted by ordinance, without sig. nals, and without knowledge that any person was near the crossing, held not sufficient to charge the company for the willful killing of a decedent.- Brooks v. Pittsburgh, C., C. & St. L. Ry. Co., Ind., 62 N. E. Rep. 694.

146. REVIEW-Newly Discovered Evidence.-A bill of review on newly discovered evidence does not lie to a decree by default.-Camden v. Farrell, W. Va., 40 S. E. Rep. 368.

Revoking

147. SCHOOL AND SCHOOL DISTRICTS School Teacher's Contract Because of Marriage.- A contract for teaching school, procured on condition that the teacher should remain unmarried during the school term, may be rescinded upon failure to perform the condition.- Guilford School Tp. v. Roberts, Ind., 62 N. E. Rep. 711.

148. SEAMEN-Descrter from Foreign Ship of War.A member of the Russian naval service, sent to the United States as one of the force ordered to take possession, as the crew, of a cruiser built by the Russian government, who deserts before the crew is organized and without setting foot on the vessel, is a deserter from a Russian ship of war, within the treaty of 1832 with Russia. Tucker v. Alexandroff, U. S. S. C., 22 Sup. Ct. Rep. 195.

149. SEDUCTION-Definite Date of Marriage. In pres. ecution for seduction under promise of marriage, held not essential to conviction that the evidence show a definite time fixed for the marriage.-Jinks v. State, Ga., 40 S. E. Rep. 320.

150. SHERIFFS AND CONSTABLES.-De Facto Officers.Where there was no showing that a deputy sheriff, who refused to take the oath of office, exercised the duties thereof or was reputed in the community to be a deputy sheriff, he was not an officer de facto.- Brown v. State, Tex., 66 S. W. Rep. 547.

151. STATES-Wrongful Acts of Officials. -The state is not llable for damages resulting from the wrongful acts of its public officials.-Billing v. State, Wash., 67 Pac. Rep. 583.

152. STATUTES-Effect of Repeal. Gen. St. 1901, § 7842, providing that the repeal of a statute shall not affect a right accrued, duty imposed, or proceedings com menced under the repealed statute, does not save the right to try a pending cause under a rule of evidence

established by a repealed statute.-Wheelock v. Myers, Kan., 67 Pac. Rep. 632.

153. STATUTES-Partly Unconstitutional.-Where an act prohibited the sale of intoxicating liquors, the fact that a portion prohibiting the giving away of fruits in alcohol was unconstitutional did not affect the validity of the remai. der. Hancock v. State, Ga., 40 S. E. Rep. 317.

154. STREET RAILROADS-Child on Track. -A motorman cannot assume that a child seven years old, hur. rying toward the track and looking in the opposite direction, will not go on the track in front of the car. -Citizens' St. Ry. Co. v. Hamer, Ind., 62 N. E. Rep. 658.

155 STREET RAILROADS-Look and Listen Rule.- One about to cross a street car track is not bound to look and listen in order to be free from negligence.-Chisholm v. Seattle Electric Co., Wash., 67 Pac. Rep. 601. 156. SUBROGATION Subsequent Indorser Paying Judgment.-Subsequent indorser of note, paying judg. ment which is a lien on land of prior indorser, may enforce substitu'ion of lien without getting a judg ment against prior indorser.-Schilb v. Moon, W. Va., 40 S E. Rep. 329.

157. TAXATION-Collecting Taxes for Previous Years. -Railroad companies are not denied the equal protection of the laws, by a law requiring comptroller to assess taxes on such railroad property as had escaped taxation for such previous years.- Florida Cent. & P. R. Co. v. Reynolds, U. S. S. C., 22 Sup. Ct. Rep. 176.

158. TAXATION-Interest on Unpaid Taxes.-Interest on unpaid taxes prior to a decree establishing liability therefor in an action to collect such taxes held properly refused.- United States Trust Co. of New York v. Territory of New Mexico, U. S. S. C., 22 Sup. Ct. Rep. 172.

159. TAXATION Necessity of Tender in Resisting Taxation.- Bill to er join collection of taxes must tender such taxes as are conceded to be due.-Blue Jacket Consol. Copper Co. v. Scherr, W. Va., 40 8. E. Rep. 514.

160. TAXATION-Validity of Transfer Tax.- A transfer tax, being a charge on the privilege enjoyed under the law of the state, does not, when the property con. siets of securities exempt from taxation, impair the obligation of a contract.- Orr v. Gilman, U. S. S. C., 22 Sup. Ct. Rep. 218.

161. TENANCY IN COMMON-Conveyance from One CoTenant to Another.-Conveyance from one co-tenant to another of his interest held not to pass a pre existing demand for improvements.- Ward v. Ward's Heirs, W. Va., 40 S. E. Rep. 472.

162. TENANCY IN COMMON- Ouster by Stranger Under ⚫ Deed from Co tenant.-A stranger taking possession under a deed from co tenant of the entire tract beld an ouster of the other tenants in common. - Bennett v. Pierce, W. Va., 40 S. E. Rep. 395.

163. TRESPASS-Entrance Owner of Homestead Land. -One who has entered land as a homestead under the laws of the United States, and ever since resided on and cultivated the land, has a sufficient ownership before final proof to maintain an action for injury thereto by wrongfully turning water thereon.- Wendel V. Spokane County, Wash., 67 Pac. Rep. 576.

164. TRIAL-Admission of Findings of Fact.-An ex. ception to the conclusions of law on findings of fact admits the findings of fact to be true.-City of Indianapolis v. Board of Church Extension of United Presbyterian Church, Ind., 62 N. E. Rep. 715.

165. TRIAL-Directing Verdict on Motion.-Where the court refuses to direct verdict for either party on motions to that effect, but submits certain questions to a jury, its verdict is of the same force as a verdict on any issue in an action at law. - Bank of State of New York v. Southern Nat. Bank, N. Y., 62 N. E. Rp.

a father receives funds of children and invests it in real estate, he creates an express trust.-Crumrine v. Cumrine, W. Va., 40 S. E. Rep. 341.

167. TRUSTS-Trustee Ex Maleficio.-Grantee in con. veyance in consideration of promise to pay specified sum to a third party held a trustee ex maleficio.-Ahrens v. Jones, N. Y., 62 N. E. Rep. 666.

A

168. VENDOR AND PURCHASER Effect of Provision "More or Less" in Deed. - Where deed describes land as more or less, and is conveyed by boundary, there can be no abatement of price for deficiency of quantity.-Adams v. Baker, W. Va., 40 S. E. Rep. 356. 169. VENDOR AND PURCHASER Oral Partition. purchaser of the undivided half interest of S in a lot, as shown by the record, has not constructive notice of an oral partition by 8 and O, big co-tenant, from the prior payment for years by O of the taxes on a certain half of the lot.-Hurley v. O'Neill, Mont., 67 Pac. Rep. 626.

170. VENDOR AND PURCHASER-Title Void at Sale but Not at Time of Suit.- Where title at time of convey. ance retaining a lien is vold, if it is valid when suit to enforce the lien is brought, the original defect is no defense.-Bennett v. Pierce, W. Va., 40 S. E. Rep. 395. 171. VENDOR AND PURCHASER-Transfer of Vendor's Lien.-A transfer of a note given in payment of the purchase price of land carries with it the vendor's lien.-Brandenburg v. Norwood, Tex., 66 S. W. Rep.

172. WATERS AND WATER COURSES-Directing Stream. -Where water is accustomed to flow during the irrigating season through a natural depression and irri. gate plaintiff's laud, defendant cannot divert the water to plaintiff's injury.- Mace v. Mace, Oreg., 67 Pac. Rep. 660.

173. WATERS AND WATER COURSES-Rights of Prior and Former Appropriators.- A former appropriator of water in a river has not the exclusive right to control all the water, and others have the right to its use so long as the former appropriator's use is not interferred with.-Salt Lake City v. Salt Lake City Water & Electrical Power Co., Utah, 67 Pac. Rep. 672.

174 WILLS-Life Estate in Land.-In Indiana only a life estate in land will pass to a devisee, unless it affirmatively appears from the will that a greater Estate was intended.-Fenstermaker v. Holmau, Ind., 62 N. E. Rep. 699.

175. WILLS-Waiver of Execution of Trust.- Where devisee waives execution of trust in her behalf by accepting from executor money equal to value of her life estate, she is estopped from requiring execution of trust, Dearing v. Selvey, W. Va. 40 S. E. Rep. 478. 176. WITNESSES-Deposition as Affecting Credibility. -Depositions in supplementary proceedings held admissible in another action as affecting the credibil. ity of witnesses by showing contrary statements.— Desbecker v. Cauffman, N. Y., 62 N. E. Rep. 674.

177. WITNESSES-Donee to Prove Gift of Deceased Dopor.-Under Code, ch. 130, § 23, a donee held an incompetent witness to prove gift by donor now de. ceased. Lee v. Patton, W. Va., 40 S. E. Rep. 353.

178. WITNESSES-Impeachment as to Collateral Matters. Where a witness for defendant testified that he had not made certain statements relating to a collateral matter, it was error to permit the prosecution to prove that he had made such statements.-Commonwealth v. Bright, Ky., 66 S. W Rep. 604.

179. WITNESSES-Wife of Party to Suit as Entitled to Pay. The wife of a party to a suit is not entitled to pay for attendance as a witness.-Texas M. Ry. Co. v. Parker, Tex., 66 S. W. Rep. 583.

Central Law Journal.

ST. LOUIS, MO., MAY 16, 1902.

RIGHT OF MINORITY STOCKHOLDERS TO INTERFERE WITH TRANSACTIONS OF THE CORPORATION PRIOR OR SUBSEQUENT TO THEIR BECOMING STOCKHOLDERS.

While courts are quick to protect minority stockholders whenever they have been injuriously affected by the fraudulent or ultra vires acts of the majority, they will not permit them to bring all their petty grievances into court merely to harass the majority, nor will they be permitted to attack any transaction of the corporation prior to the time where they became stockholders in it. Thus, in the recent case of Farwell v. Babcock, 65 S. W. Rep. 509, the Court of Civil Appeals of Texas held that where there is merely mismanagement, neglect, or abuse of discretion on the part of the officers of a corporation, courts will not interfere on behalf of minority stockholders to set aside contracts which are not ultra vires, but will only interfere where the course of conduct by the directors plainly shows an intention to sacrifice the interests of the corporation and the minority stockholders.

We cannot too strongly commend the decision of the court in this case. Any other rule than that announced would open the door to an avalanche of vexatious litigation which would demoralize business and affect seriously the stabilty of all investments in industrial stocks. Where there is neither fraud nor ultra vires the minority must submit to the action of the majority. Their only remedy is the corporate elections, and from the result of such elections there is no appeal. In this case the board of directors of a corporation leased the corporate rights and property to several of the directors who constituted a minority thereof. The court held the contract was voidable, but not void, though the directors used their position to advance their interests. Nor did the facts, according to the court's opinion, justify the appointment of a receiver nor the winding up of the corporation. This rule is supported by the weight of authority: Cates v. Sparkman, 73 Tex. 619, 11 S. W. Rep.

842, 15 Am. St. Rep. 806; Gamble v. Water Co., 123 N. Y. 91, 25 N. E. Rep. 291, 9 L. R. A. 527; Wheeler v. Steel Co., 143 Ill. 197, 32 N. E. Rep. 420, 17 L. R. A. 818.

In Cates v. Sparkman, the language of the court is adopted as the true rule in this question. The court said in part: "The breach of duty authorizing a suit by an individual stockholder for damage in the depreciation of his stock does not refer to mere mismanagement or neglect of the officers or directors in the control of the corporate affairs, or the abuse of discretion lodged in them in the conduct of the company's business. On this ground the courts The breach of duty or

do not interfere.

conduct of officers and directors which would authorize in a proper case the court's interference in suits of this character is that which is characterized by ultra vires, fraudulent, and injurious practices, abuse of power, and oppression on the part of the company or its controlling agencies, clearly subversive of the rights of the minority or of a shareholder, and which, without such interference, would leave the latter remediless. Thomp. Liab. 391; Pom. Ex. Jur. § 1096. But if the acts or things are or may be that which the majority have a right to do, or if they have been done irregularly, negligently, or imprudently, or are within the exercise of their discretion and judgment in the development or prosecution of the enterprise in which their interests are involved, these would not constitute such breach of duty, however unwise or inexpedient such acts might be, as would authorize the interference by the courts at the suit of a stockholder."

A's to transactions happening before the dissenting stockholder enters the corporation the latter has absolutely no right to interfere on any ground. To this rule the court, in this case, gives emphatic assent. Too often cases arise in which stock is pur chased in a company, having a past history which is a little cloudy, for the mere purpose of vexation and extortion. Litigation is commenced in order to force the purchase of their shares at exorbitant figures. The courts sternly discountenance all such unworthy endeavors, and the weight of authority is in favor of the rule that a person who did not own stock at the time of the transactions

complained of cannot complain or bring suit to have them declared illegal. Alexander v. Searcy, 31 Ga. 536, 8 S. E. Rep. 630, 12 Am. St. Rep. 337; Clark v. Coal Co., 86 Iowa, 436, 53 N. W. Rep. 291, 17 L. R. A. 557; Dimpfel v. Railway Co., 110 U. S. 209, 3 Sup. Ct. Rep. 573, 28 L. Ed. 121; United Electric Securities Co. v. Electric Light Co., 68 Fed. Rep. 673. In the latter case Judge Pardee states the reason of the rule as follows: "As a general proposition the purchaser of stock in a corporation is not allowed to attack the acts and management of the corporation prior to the acquisition of his stock; otherwise we might have a case where stock duly represented in a corporation consented to and participated in bad management and waste, and, after reaping the benefit of such transactions, could be easily passed into the hands of a subsequent purchaser, who could make his harvest by appearing and contesting the very acts and conduct which his vendor had consented to."

NOTES OF IMPORTANT DECISIONS.

LIABILITY

WATERS AND WATER COURSES FOR DRAINING SURFACE WATER ONTO ANOTHER'S LAND.-The drainage of surface water has always been a matter of great legal difficulty. In the recent case of Brandenburg v. Leigler, 39 S. E. Rep. 790, the Supreme Court of South Carolina, reversing the lower court, held that where surface water collects in a pond during rainy weather, it is actionable injury for the owner of the land to drain by a ditch such surface water onto lower proprietor to his injury. It appeared that the lower court in granting a nonsuit held that the water in question was mere surface water; that defendants could deal with it as a common enemy, and drain it by ditch onto the plaintiffs' land; that any injury resulting therefrom was damnum absque injuria, citing Baltzeger v. Railway Co., 54 S. Car. 242, 32 S. E. Rep. 358, 71 Am. St. Rep. 789. The trial court made the mistake of confusing the owner's right to embank against surface water coming from another's land and the right to drain surface water onto the land of another. The language of the court is clear on this point:

"Under the common-law rule surface water is regarded as a common enemy, and every landed proprietor has the right to take any measures necessary to the protection of his own property from its ravages, even if in doing so he throws it back upon a coterminous proprietor to his damage which the law regards as a case of damnum absque injuria, and affords no cause of action. We deal now with a different question. When one

having the right to cut off surface water from his land nevertheless permits such water to collect in a natural basin on his land, he has an absolute right of property in such water, and may use it exclusively as his own. His dominion over such water is as great as his dominion over the realty upon which it rests, and of which it is a part. He can no more cast such water, by artificial means, injuriously upon his neighbor, than he could cast the mud or soil upon his neighbor's premises. In either case he would violate the neighbor's right of dominion over his own property. The absolute right of the lower proprietor to embank against the flow of surface water, and thereby cause it to rest upon the upper proprietor's land is wholly irreconcilable with the claimed right of the upper proprietor by artificial means to collect and cast such water upon the lower proprietor. It is a maxim of the common law ("sic utere," etc.) that every one must so exercise his legal right as not necessarily to injure another in the exercise of his legal right. If, therefore, the upper proprietor has no easement to drain surface water upon the lower proprietor either by natural or artificial means, and the lower proprietor has the legal right to cast it back upon the upper proprietor, it would seem unreasonable to hold that the upper proprietor may, nevertheless, lawfully collect such water in artificial channels, and throw it upon the lower propritor. The upper proprietor may acquire the right to drain surface water onto his neighbor's land through artificial channels by prescription. This, of course, involves a right of action to prevent such prescriptive right." See also the following authorities to same effect: Gray v. McWilliams (Cal.), 32 Pac. Rep. 976, 35 Am. St. Rep. 163, 21 L. R. A. 593; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Schuster v. Albrecht (Wis.), 73 N. W. Rep. 990, 67 Am. St. Rep. 804; Adams v. Walker, 34 Conn. 466, 91 Am. Dec. 742; Pye v. City of Mankato, 36 Minn. 373, 31 N. W. Rep. 863, 1 Am. St. Rep. 671; Davis v. City of Crawfordsville, 119 Ind. 1, 21 N. E. Rep. 449, 12 Am. St. Rep. 361; Rychlicki v. City of St. Louis, 98 Mo. 497, 11 S. W. Rep. 1001, 4 L. R. A. 594, 14 Am. St. Rep. 651; Pettigrew v. Village of Evansville, 25 Wis. 223, 3 Am. Rep. 50.

SPENDTHRIFT TRUSTS.

Introduction. The subject of spendthrift trusts commands the attention of every possessor of property. To the man of wealth it provides a way by which he may make suitable provision for the maintenance and support of another, and yet secure the fruits of his toil from the improvident acts of the object of his bounty. To the reckless and extravagent beneficiary, it offers a means of being saved from himself. This doctrine is the latest development of the courts of chancery. It has been born within the memory of men yet living, and has attained its full stature during the last quarter of a century. So rapid has been its growth, so universally is its validity

being recognized by the courts of this country, that a knowledge of the law which unfolds its possibilities and defines its boundaries is of vast importance to every lawyer and conveyancer. To briefly trace the historical development of this doctrine, to find in its history the reasons for its origin and growth, and, finally, to state the law relating to these modern trusts, is the purpose of this paper.

The

Definition.-A spendthrift trust may be defined as a settlement of property in trust for a beneficiary, other than the donor, and so limited that it cannot be alienated by way of anticipation, or be subject to seizure by the creditors of the beneficiary, in advance of its payment to him. doctrine set forth in this definition is a radical innovation upon the long established rules of both law and equity. The idea that one may enjoy the fruits of property, and yet hold it beyond the reach of creditors, shocked alike the conscience of the chancellor and the exponent of the common law.

Old Rules of Law and Equity.-In order to properly understand this modern doctrine, which is a creature of our courts, it will be necessary to briefly examine some of the hard and fast rules of the common law:-for in the harshness and inflexibility of those rules do we find the reasons for the origin and growth of equity. It will also be necessary to examine the old rules of equity, to find, if we can, the restrictions and limitations imposed upon the settlor of a trust fund respecting his power to protect the fund by inhibitions upon the power of the cestui que trust.

Struggle for the Right of Alienation.-The history of the law of property is, in a great measure, a history of the struggle for the right and power of alienation. On one side are arrayed the landed barons and parliament, on the other, the courts and the people. The great freedom of alienation enjoyed by the ancient Saxons was substantially taken away on the introduction of the feudal system by William the Conqueror. Step by step, through successive changes, the restrictions were overcome until finally, with one exception, the free right of alienation was given by the statute of Quia Emptores,1 as an inseparable incident to an estate in fee. There still remained, however, the fetters attached to estates tail by their creator, the statute "De Donis Conditionalibus." It took nearly two hundred years to free this esstate from the restraints which inhered in its very nature; but this was finally accomplished by a striking process of judicial legislation which culminated in the establishment of the rule in Taltarum's case, whereby the entails were barred, and the estate made alienable.

Restraints at Common Law.-On the final triumph of the courts and people in the establish

118 Edw. I. (1290.) The statute quia emptores ex cepted the king's tenants in capite.

21 Spence Eq. 138; Williams' Real Prop. 61; Co. Litt. 43b.

3 Year Book 12, Edw. IV. 19; 2 Black. Com. 116.

ment of the rule in Taltarum's case, new questions arose to perplex the minds of judges and lawyers. While the general right of alienation undoubtedly existed, the question arose as to whether this general right was subject to any special restrictions. In answer to this question, Sir George Jessel, M. R., has said: "You may restrict alienation by prohibiting a particular class of alienation, or you may restrict alienation by prohibiting to a particular class of individuals, or you may restrict alienation by restricting it to a particular time."4

Same, Continued.-This statement of the master of the rolls logically leads our inquiry into three channels: First, what restraints were valid as to kind? Second, how far could a conveyance be restricted as to persons? Third, is the restriction valid if restricted for any given time? We now proceed to an examination of these questions. It is beyond the purpose of this paper to enter into a minute discussion of these common-law questions; but the endeavor shall be to present the law in all the great essential principles which lead up to the subject under review. In doing so it will be necessary to consider these questions as affecting three estates, viz: estates in fee, estates for life, and for years.

Restraints Upon Estates In Fee.-In general, the power of alienation is necessarily and inseparably incidental to an estate in fee. Without such a right the estate granted would be neither a feesimple, or any other estate known to the law. This principle is older than the common law; for Aristotle says, "It is the definition of property to have in one's self the power of alienation." Hence, if land be conveyed on condition that the grantee shall not alien,5 or a provision that, upon alienation, the estate should be charged with a sum of money, the condition is void. "For, if this condition be good, then the condition should oust him of all power which the law gives him, which should be against reason; and, therefore, the condition is void."7

Restraints as to Kind. "You may restrict alienation by prohibiting a particular class of alienation."*8 If this statement be sound law it is evident that it can have but a very limited application. The master of the rolls says the only prohibition is against selling; and as there are various modes of alienation besides sale, a person may lease, or he may mortgage, or he may settle. But it is difficult to see any distinction between a sale and a mortgage, whereby the mortgagor can suffer the estate to be taken under foreclosure proceedings. And while the above

4 Ke Macleay, 20 L. R. Eq. 186.

54 Kent's Com. 131; Williams' Real Prop. 88; Patter v. Couch, 141 U. S. 296; Mandelbaum v. McDonell, 29. Mich. 78; Nagel's Appeal, 33 Pa. St. 89; Re Machee,, 21 Ch. Div. 838.

6 De Peyster v. Michael, 6 N. Y. 467.

7 Co. Litt. sec. 360.

8 Re Macleay, 20 L. R. Eq. 186.

9 Pearsons, J., in Re Rosher, 26 Ch. Div. 801..