Page:Harvard Law Review Volume 5.djvu/165

RECENT CASES. 149 to three — was that the Commonwealth has the absolute right to the waters of our great ponds, free from any duties to the riparian owners on the streams forming the outlet ; that it may grant to a city the right to take the water, and the lower riparian owners can claim no com- pensation for the consequent injury to them. For interesting articles on both sides of the question, see 2 Harvard Law Review, 195 and 316. In view of the importance and difficulty of the question, it is a dis- appointment to find that on the rehearing the court expressly refuses to reconsider its decision, and bases the reversal solely on the fact, which is now made to appear for the first time, that the plaintiffs' predecessors acquired title to these ponds by a grant prior to the date when the Colonial Ordinance of 1647, on which the title of the Commonwealth to the great ponds is based, became law. The Ordinance could, of course, have no effect on the existing private ownership, and therefore the Commonwealth never acquired title to these particular ponds, and its grantee, the City of Fall River, is enjoined from taking the water. The general principle laid down by the former decision, as stated above, remains, however the law of Massachusetts. Both graduates and present members of the school will doubtless be interested to hear that the degree of LL.D. has recently been con- ferred upon Prof. James B. Thayer by the Iowa State University. RECENT CASES. fThese cases are selected from the current English and American decisions not yet regularly reported, for the purpose of giving the latest and most progressive work of the court. No pains are spared in selecting all the cases, comparatively few in number, which disclose the general progress and tendencies of the law. When such cases are particularly suggestive, comments and references are added, if practicable.] Administrators — Personal Liability. — An administrator recovered a judg- ment and, after appeal was barred, waived his advantage and allowed the same to be taken. The appellate court reversed the judgment, and refused a new trial, on the ground that the proof showed no cause of action. Held, that he was not obliged to insist on the technicality, and was not personally liable to the estate for the amount of the judgment. McGuire v. Rogers, 21 Atl. Rep. 723 (Md.). The reasoning of the court is that an administrator is not obliged to insist upon or set up a legal right when justice does not require it. In accordance with this principle it is generally held that an administrator may waive the Statute of Limitations. The present case is interesting as indicating that the right to waive will be extended to other defences concerning which the law is as yet unsettled. See Williams on Executors, 7th edition, p. 1801; Woerner's Law of Administra- tion, pp. 841, 843; 15 Mass. 8, note. Agency — Fellow-servants — Separate Departments. — One who is em- ployed by a railroad company, under a foreman, to make repairs in its repair-shops and on cars standing in its yards is not a fellow-servant of a switchman who, under orders of the yard-master, directs the movement of cars in the yard. Pool v. Southern Pac. R. Co., 26 Pac. Rep. 654 (Utah). Agency — Oral Agreement to Exchange — Part Performance — Statute of Frauds. — In an action for specific performance, the evidence showed that defendant placed the property in the hands of an agent to sell or exchange, and by his efforts met plaintiff, and agreed orally to exchange with him. Plaintiff left a deed with the agent, but defendant refused to accept it. Held, that a deliv-