is prima facie evidence of negligence (Watson v. Weeks, unreported), the careless act of a farm servant, causing a farm horse to run away and knock down a visitor crossing the farm, does not render the farmer liable to the visitor for any breach of duty. Tolhausen v. Davies, 57 L. J. Q. B. 392; noted in 4 Law Quart. 488. See Corby v. Hill, 4 C. B. N. s. 556, and note, for cases on duty of owner of premises to bare licensees. NEGLIGENCE IMPUTED NEGLIGENCE. The plaintiff was injured by being thrown out of a vehicle driven by a person who had invited her to drive, whose efficiency she had no reason to doubt, and over whom she had no control. Held, that his negligence was no bar to her recovery against the town for a defect in the highway. Town of Knightstown v. Musgrove, 18 N. E. Rep. 452 (Ind.). The court denied the doctrine of Thorogood v. Bryan, 18 C. B. 115. The case of The Bernina, 12 P. Div. 58, 57 L. J. Rep. Q. B. 65, was not cited. See 2 HARV. L. REV. 140; and see, also, Hoag v. R. R. Co., 18 N. E. Rep. 648 (N. Y.). NEGLIGENCE · VOLENTI NON FIT INJURIA. In an action for negligence against a railway company for injuries sustained by the plaintiff in falling down steps leading to the platform of the railway station, which were in a dangerous condition, it was held that an admission by the plaintiff, on cross-examination, that he thought it was dangerous to go down the steps, was not sufficient to entitle the defendants to succeed on the ground that the maxim volenti non fit injuria applied, but that the onus of proof lay upon the defendants to show that the plaintiff "freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it," and to establish the fact that the maxim applied. Osborne v. London & N. W. Ry. Co., 59 L. T. Rep. N. s. 227 (Eng.); s. c. 38 Alb. L. J. 460. The authority of Thomas v. Quatermaine, 18 Q. B. D. 685, is questioned. SALE - WARRANTY RECOUPMENT OF DAMAGES. - A warranty by the vendor of a printing-press, that the machine will work "satisfactorily," does not entitle the vendee to recoup damages in an action against him for the price. If the covenant had been that the press should work well, the ordinary rule would have applied, and the damages would have been the difference in value between a press which would work reasonably well, and that which was actually furnished; but it is impossible to fix the value of a machine which would work to the "satisfaction" of defendant. Campbell Printing-Press Co. v. Thorp, 36 Fed. Rep. 414 (Mich.). very excellent discussion of the authorities on sales The opinion contains a with warranties. TRUSTS CONSTRUCTIVE TRUSTS PURCHASE BY ATTORNEY OF OUTSTANDING TITLE. An attorney, employed to prepare an abstract of title to land about to be sold by his client, discovered a defect which he concealed. The land was conveyed to the proposed purchaser by a warranty deed. The attorney then, by false representations, procured from the proper parties the legal title for himself. Held, that he could not maintain ejectment, since he was a constructive trustee of the legal title for his client's grantee. Downard v. Hadley, 18 N. E. Rep. 457 (Ind.). It is doubtful whether the trust was based on a duty owed by the attorney to the grantee, or whether it was based on the client's equity against the attorney, to which the grantee became entitled by virtue of the warranty. WATERS AND WATERCOURSES RIGHT OF THE STATE IN GREAT PONDS. The State of Massachusetts authorized by statute the city of Fall River to take so much water from a pond called "Watuppa Pond," that owners of land bordering on a natural stream flowing therefrom were greatly damaged. It was held that the Colony Ordinance of 1647,' providing that householders shall have free fishing and fowling in any great ponds over ten acres in size within the precincts of the town, and may pass and repass on foot through any man's land, so that they trespass not on corn or meadow land, vests in the State both the jus publicum and the jus privatum in great ponds, so that it can devote their waters to a public use without compensation to those injured thereby. Watuppa Res ervoir Co. v. City of Fall River, 18 N. E. Rep. 465 (Mass.). For a criticism of this case see "The Watuppa Pond Cases," 2 HARV. L. REV. 195. It should be noticed that the statement, made by Chief Justice Morton in his opinion, that by Statute of 1869, c. 384, the State of Massachusetts released its proprietary right in great ponds under twenty acres in size to the owners of the shores, seems not strictly correct, since the statute purports to release only the right of fishery in such ponds. See P. S. c. 91, §§ 10, II and Statute of 1888, c. 318. "Great ponds" appear to remain those over ten acres in size, according to the Colony Ordinance of 1647. REVIEW. SELECT PLEAS OF THE CROWN. Vol. I., A.D. 1200-1225. Ed ited for the Selden Society, by F. W. Maitland. Quaritch. 8vo. xxx and 164 pages. London: Bernard The Selden Society and its editor are to be congratulated upon the first fruits of this new organization. The work of Mr. Maitland is of the high degree of excellence that was to be expected from the editor of Bracton's Note Book. The translation of the Latin text is especially successful. Of the many points of historical interest, only one or two can be here indicated. Originally, actions for a battery or for an asportation of chattels were determined by wager of law in the popular courts of the hundred and county. With the growth of the feudal state these actions, except in case of a trivial battery, became convertible, by the addition of the words feloniter, vi et armis, and contra pacem regis (or ducis), into appeals of felony, determinable by wager of battle in the royal courts. Later, by the omission of feloniter, the appeal became the familar action of trespass, with trial by jury. The book before us shows that trespass quare clausum fregit had a different course of development. From case No. 35 it appears that there was no appeal of felony for a simple entry upon land unaccompanied by a battery of the occupant, or an asportation of his chattels. Such an entry, like a trivial battery, was, doubtless, regarded as too slight an offence to be visited with the penalties of felony. On the other hand, after trespass became concurrent with the appeal of felony for a battery or asportation, it was but natural to admit trespass quare clausum fregit in the curia regis, in competition with the similar action in the popular courts. Cases Nos. 88, 105, and 126 (see also 3 Bracton's Note Book, case No. 1664) make it plain that the much-quoted rule, "A bailee may sue a wrongdoer because he is liable over to his bailor," was an established doctrine at the beginning of the thirteenth century. It seems, also, that in England, as upon the Continent, the bailor could not, in early times, sue the wrongdoer. The bailee had the chattels, the bailor had but a right to have them. In other words, the bailee could, and the bailor could not, prove that the chattels, when taken, were 'sua.' By regarding the possession of the bailee at will as the possession of the bailor, the courts, in the time of Edward III., gave the bailor also a right of action against the wrongdoer. J. B. A. HARVARD LAW REVIEW. VOL. II. FEBRUARY 15, 1889. No. 7. LIMITATIONS IMPOSED BY THE FEDERAL CONSTITUTION ON THE RIGHT OF THE STATES TO ENACT QUARANTINE LAWS. HA II. AVING considered the meaning of the term "regulation of commerce," and the test to be applied in order to determine whether a law is such a regulation, let us now inquire whether quarantine laws fall within the class of regulations of commerce permissible to the States. Upon few subjects in our constitutional law are the doctrines still so unsettled as upon the construction of the clause granting the commercial power to Congress. The object of granting this power was twofold. First, to secure uniformity of regulation instead of the discriminating legislation by which the States had taxed and otherwise burdened the commerce of one State for the benefit of another;1 and, second, to secure better commercial relations with foreign powers.2 The clause does not appear in the Constitution in the way in which it was originally proposed. In the "Plan of a Federal Constitution" offered in the convention by Mr. Charles Pinckney, the clause appears thus: "The Legislature of the United States shall have the power to regulate commerce with all nations. 1 Welton v. State of Missouri, 91 U. S. 275, 280. 6 and among the several States." 1 The committee of five to whom Mr. Pinckney's propositions were referred by the convention 2 reported back the clause unchanged, except that the word "foreign was substituted for "all" before "nations." 3 The committee, consisting of one member from each State, to whom this clause among others was again referred, added the words "and with the Indian tribes," and struck out the definite article before "power" at the beginning of what is now art. I, sec. 8, of the Constitution.5 These alterations were "agreed to nem con.," leaving the clause as it now stands. It is to be regretted that we have not the reasons of the committee for making this change, which had the effect of giving Congress power, instead of the power, to regulate commerce. But it is not unlikely, as pointed out by Mr. Emmet in his argument in Gibbons v. Ogden, that the change was made in order to discountenance the idea that because certain powers had been granted to Congress they were to be construed as exclusive without more, depriving the States of any further rights to exercise the same powers. It was strongly intimated by Chief Justice Marshall in that case—and his reasoning can be explained on no other ground-that "as the word to 'regulate' implies in its nature full power over the thing to be regulated, it excludes necessarily the action of all others that would perform the same operation on the same thing." An important doctrine, supplementary to this statement, is laid down by the court five years later, in the case of Willson v. The Black Bird Creek Marsh Co.8 The court had early held, unanimously, that the power granted Congress to "establish uniform laws on the subject of bankruptcies throughout the United States" did not render the State bankrupt law unconstitutional in the absence of congressional legislation. Chief Justice Marshall had said, in the opinion of the court: "It is not the mere existence of the power, but its exercise, which is incompatible with the existence of the same power by the States. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the States." 10 8 Ib. 378. 5 Ib. 506, 507. 7 9 Wheat., at p. 209 (1824). 9 Wheat., at p. 85 (1824). 8 2 Pet. 245 (1829). 9 Sturges v. Crowninshield, 4 Wheat. 122 (1819). 1o Ib. 251. In Willson v. The Black Bird Creek Marsh Co., the Legislature of Delaware had authorized a company to reclaim a marsh by constructing a dam across a small navigable creek in which the tide ebbed and flowed. Willson and the other defendants, the owners of a sloop regularly licensed under the United States navigation laws, had broken and injured the dam in order to effect a passage. In defence to an action of trespass brought by the company, the defendants contended that the statute authorizing the dam was an unconstitutional regulation of commerce, relying on Gibbons v. Ogden. The Supreme Court, speaking through Chief Justice Marshall, unanimously held the statute constitutional. They pointed out that the legislation improved the value of the property, and probably the health of the inhabitants, near the marsh, adding: "Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States." Upon the point of regulating commerce, on account of the controversy to which this case has given rise, I quote the language of the court entire; "If Congress had passed any act which bore upon the case,— any act in execution of the power to regulate commerce, the object of which was to control State legislation over these small navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle and Southern States, we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States, a power which has not been so exercised as to affect the question. We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." 1 This case is interesting as the first in which the court passed upon the constitutionality of a law which they treated as a police regulation, claimed to be in conflict with the power of Congress to regulate commerce. The case has been a source of continual 1 2 Pet. 252. |