144 HARVARD LAW REVIEW. Nowadays the question is not so frequently raised in the United States because of the prevalence of statutes assimilating intestate succession in the cases of real and personal estate. Property — Fixtures — Mortgagor and Mortgagee. — A executed a mortgage to plaintiff on a factory and the machinery therein, but it was filed as a real-estate mortgage only. A became bankrupt, and the plaintiff sued to foreclose against de- fendant, A's assignee. Held, that the mortgage operated as a chattel mortgage on the machinery, and being unrecorded is void as to creditors of the mortgagor. Sheldon v. Wickkain, 50 N. Y. Supp. 314 (Sup. Ct. App. Div., Third Dept.). Two judges dis- senting. The majority of the court felt bound by Stephens v. Perrine, 143 N. Y. 476 ; but this case only decided that the failure to file a chattel mortgage renders it void as to cred- itors. The court in the principal case assumed that the machinery was personal prop- erty as between mortgagor and mortgages. This may be open to doubt. The law in England is certainly the other way, fjolland v. Hodgson, L. R. 7 C. P. 328, and the English view has generally been followed in this country. Ottiimwa Woolen Mill Co. v. Hawley, 44 Iowa, 57. In Massachusetts, however, the decisions seem to agree with the principal case. Gale v. Ward, 14 Mass. 352 ; but see Pierce v. George, 108 Mass. 78. The machinery in question seems to have the essential qualities of a fixture, and it is difficult to see how the case can be supported. Property — Powers. — A testator devised his estate to his widow for life, with power to sell or dispose of it for her support. She did not exercise the power. Held, that the estate is not liable for debts incurred by her for her support. Ryon v, Mahan, 39 AtL Rep. 893 (R. I.). The case is clearly right. It bears some points of resemblance to the leading case oi Jones v. Cifton, loi U. S. 225. In that case a husband gave several parcels of land to his wife, reserving to himself a general power of appointment. It was held that this power was not available to his creditors. Powers are purely personal, and while a power may make the donee potentially dominus of the property, he cannot be com- pelled to exercise it. If he fails to do so, creditors have nothing to which they can attach a claim. Property — PRESCRtPxroN — Eminent Domain. — A railroad entered upon and occupied land without the owner's consent. In an action of ejectment by the owner, held, that as the company could obtain a right of way by virtue of its right of eminent domain, it could not acquire such an easement by prescription, even though its origi- nal entry was not in the exercise of its right of eminent domain. Narron v. Wilming- ton &' W. R. R. Co., 29 S. E. Rep. 356 (N. C). The ground of decision is apparently that the possession of the company was not adverse. It is held generally that a railroad company entering on land without the owner's consent, or without the proper exercise of its charter privileges, is a trespasser. 2 Wood, Railroads, § 247. There seems to be no reason, therefore, why its possession should not be considered adverse so as to give title if continued for a sufficient time. There appears to be no authority on the point, however. Torts — Libel per se. — The defendant company falsely published of the plain- tiff: "The General's bride is a dashing blonde, said to have been a concert-hall singer and dancer at Coney Island." It was alleged and proved that these were places of notoriously evil resort. Held, that the imputation is libellous per se. Gates v. N. V. Recorder Co., 49 N. E. Rep. 769 (N. Y.). See Notes, 12 Harv. Law Rev. 57. Torts — Negligenge — Plaintiff's Illegal Act. — The deceased, while trav- elling on Sunday in violation of a statute forbidding travel on that day, was killed at a crossing by the negligent operation of the defendant's train. In an action by the next of kin, held, that the violation of the statute by the deceased is no bar to the recovery. Boyden v. Fitchburg R. R. Co., 39 Atl. Rep. 771 (Vt.). The decision is supported by the weight of authority in this country, and seems to represent the correct view. The mere fact that a person is travelling on a day when travel is illegal cannot be said to contribute in any degree as the cause of damage resulting from the negligence of another. Sutton v. Town of Wauwatosa, 29 Wis. 21. Torts — Obstruction of Hydrant— Held, that one who obstructs the use of a city hydrant by firemen is liable to one whose projjerty is damaged by fire in con- sequence thereof. Kiernan v. Metropolitan Construction Co., 49 N. E. Rep. 648 (Mass.). See Notes. Trusts — Cestui Barred by the Statute of Limitations. — The trustee wrongfully conveyed the trust property, and the grantee with notice held for the
