The other possibility, adopted in the instant case, is that the automobile and passengers become, by violating this statute, trespassers on the highway and outlaws beyond the pale of ordinary laws. Under ordinary circumstances it is generally held in the United States, Massachusetts concurring, that the violation of a statute does not destroy the wrongdoer's civil rights so as to make him an outlaw and that, in case of injury, the ordinary rules of law are to be applied in determining his liability. The rule of the present case is an anomalous exception to this doctrine, as is pointed out in Chase v. N. Y. C. & H. R. R. Co., and the reason given is that the legislature by this section intended to outlaw unregistered automobiles and "*** to put these forbidden and dangerous machines outside the pale of travellers* ***10 It thus appears that the reason for this exception lies solely in the court's belief that an automobile is a dangerous machine. Although an automobile is not in itself a dangerous machine, it must be admitted that it may become one when intrusted to incompetent hands. It is interesting to note that immediately following the section dealing with registration" is a section worded practically the same prohibiting driving by an unlicensed person.12 Surely if either were to carry a defeasance of civil rights as punishment, the section licensing drivers should be the one since the driver is what makes the machine dangerous. Curiously enough the court has uniformly held that the violation of this subsequent section does not affect the civil rights of the wrongdoer and does not make him an outlaw.13 This inconsistency is noted in Armstead v. Loundsberry14 where the identical question raised in the instant case was under discussion. The Minnesota court pointed out the inconsistency in the Massachusetts doctrine and after reviewing the Massachusetts authorities repudiated them and applied the general rule to the section on registration. The same result was reached in Gilman v. Central Vt. Ry. Co.15 This case is particularly significant in view of the fact that the Vermont statute, 16 as the court says, seems to have been taken bodily from the Massachusetts Law. These cases fairly represent the opinion of the courts in the majority of the jurisdictions. That the Massachusetts view is the less desirable seems quite clear.

Hemming v. City of New Haven, supra, n. 2; Atl. Coast Line R. R. Co. v. Weir, supra, n. 2; Čhase v. N. Y. C. & H. R. R. Co., supra, n. 2; Armstead v. Loundsberry, supra, n. 2; Massersmith v. Am. Fid. Co., supra, n. 2; Hyde v. McCreery, 145 App. Div. (N. Y.), 729 (1911); Gilman v. Central Vt. Ry. Co., supra, n. 2.

9Supra, n. 2.

10Dudley v. Northampton Street Ry Co., 202 Mass. 443, 448 (1909).

"Mass. Stat. of 1909, Ch. 534, Sec. 9. "No motor vehicle shall be operated *** unless registered in accordance with the provisions of this act,

12 Mass. Stat. of 1909, Ch. 534, Sec. 9. "No person shall operate a motor vehicle upon any way in this commonwealth unless licensed under the provisions of this act,

13Bourne v. Whitman, supra, n. 1; Holland v. Boston, 213 Mass. 560 (1913); Conroy v. Mather, 217 Mass. 91 (1914). For a further collection of cases on this point see Huddy on Automobiles, sec. 226.

It in effect permits A negligently to injure B, who is entirely free from blame, and to set up as a defense to recovery an entirely irrelevant and collateral technicality, namely, that B's automobile was not registered as required by the statute. Although B is a wrongdoer he is clearly securing unfair treatment and a culpable person is escaping without his just punishment. This rule seems to violate all sense of fair play and justice. Sometimes, however, an injustice to a few is justifiable because of the benefit to be obtained by the many. Is there such a justification for this rule? It would seem that there is not. This statute, being more a revenue than a regulatory statute, has no tendency to decrease accidents, to secure competent drivers, or to protect the public in any way. It is a statute passed purely for administrative and revenue purposes and so the Massachusetts interpretation cannot be thus justified on this ground. Although the court attempts to justify its position by reading into the act a legislative intent to make defeasance of civil rights a part of the punishment it would seem to be unjustifiable especially since there was no public policy to be subserved. The general policy of our law is not to demand any punishment further than that provided in the statute unless the violation is a direct or proximate cause of injury to the person or property of another.17 Unless this policy of our law is ignored, the Massachusetts rule must necessarily be condemned. Ernest P. Felt.

Torts: Liability of Manufacturer to consumer for article dangerous because of defective construction.-In Coakley v. Prentiss-Wabers Co., 195 N. W. (Wis.) 388 (1923), the plaintiff was injured by the explosion of a gasoline stove manufactured by the defendant company. This stove was sold by the defendant to a wholesaler, who in turn sold it to a retailer, from whom it was purchased by a son-in-law of the plaintiff. It was shown that the cap of the gasoline container had been negligently attached by the defendant, and that, as a result, the stove exploded when being used by the plaintiff. The court held that the defendant was liable. The decision is that a manufacturer owes a duty of care even to those not in privity with him when the article he manufactures will probably be dangerous if defectively made.

Thomas v. Winchester1 is the leading case in this country holding that one who manufactures an article inherently dangerous is liable to anyone who is injured thereby, though there is no privity of contract between the manufacturer and the person injured. For a time this doctrine was logically applied to really dangerous articles such as poisons and explosives and the like. When the exigencies of a more complex social and industrial system began to demand a further departure from the doctrine of privity of contract, the departure was

17Messersmith v. Am. Fid. Co., supra, n. 2.

16 N. Y. 397 (1852).

Burk v. Creamery Package Mfg. Co., 126 La. 730 (1905); Osborne v. McMasters, 40 Minn. 103 (1889); Norton v. Sewall, 106 Mass. 143 (1870); Losee v. Clute, 51 N. Y. 494 (1873); Collection of cases, 24 R. C. L. 512, n. 19.

sustained by the courts in a liberal and at times seemingly fictitious definition of "inherently dangerous." For example a scaffold was held to be inherently dangerous;3 an elevator, a coffee urn and even a cake of soap.

These articles were not as a class dangerous in their very nature in the sense that explosives and poisons are. They became dangerous individually when defectively manufactured. This was probably at the bottom of the decisions. MacPherson v. Buick Motor Co.,7 is a landmark case because the rule is thus frankly stated. It was there held that recovery should be allowed for injury to one to whom the manufacturer could have foreseen harm by the nature of his article if it were defectively manufactured. In that case the defendant had manufactured a car which the plaintiff purchased from a dealer of the defendant. A defective wheel caused the injury. The court held that while an automobile might not be inherently dangerous it was when defectively manufactured and that the plaintiff could recover if he showed negligence. The court could have said that an automobile is an inherently dangerous agency but it refused to so limit the rule. In a similar case, Johnson v. Cadillac Motor Company, 8 the Buick case was followed in reversing a previous decision to the contrary, even though it was identically the same case between the same parties, in the same court and therefore objected to as contrary to the principle of stare decisis.

It is apparent that the doctrine announced in the Buick case differs little from ordinary notions of tort liability. Knowledge that a certain class will use the article plus its probable danger imposes a duty to use care. The technical requirement of privity of contract is no longer a bar. "We have put aside," says Judge Cardozo, "the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law." And again, "There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter is intended for their use.'

"10

Although this principle was laid down in a Minnesota case before the Buick decision, 12 the best statement of it is still embodied in that "If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing

case.

Devlin v. Smith, 89 N. Y. 470 (1882).

"Kahner v. Otis Elevator Co., 96 App. Div. (N. Y.) 169 (1904).

"Statler v. Ray Mfg. Co., 195 N. Y. 478 (1908); aff. 195 N. Y. 478 (1909). "Hasbrouk v. Armour & Co., 139 Wis. 357 (1909).

7217 N. Y. 382 (1916).

8261 Fed. 878 (1919).

9221 Fed. 801 (1915).

10 Supra, n. 7, at p. 390.

Idem, at p. 393. Announcing the same principle is Glanzer v. Shepard, 233 N. Y. 236 (1922), 7 CORNELL LAW QUARTERLY 355.

12Krahn v. Owens Co., 125 Minn. 33 (1914). Contra, Windram Mfg. Co. v. Boston Blacking Co., 131 N. E. (Mass.) 454 (1921).

of danger ***. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully."'13 The interesting feature about the Coakley case is that here the article had passed through the hand of three persons before reaching the plaintiff. In the Buick case the purchaser bought from a retailer with whom the defendant manufacturer was in privity. The difference, however, is not a substantial one, if it be granted that the liability of the manufacturer does not result even remotely from any notion of contract. The Coakley case is therefore not an extension of the Buick case properly understood. It is but a logical application of it. If the manufacturer's liability is based on ordinary principles of tort, his duty to use care extends to the ultimate user of the article, not the retailer nor even the purchaser from the retailer. For to the ultimate user alone will it probably be a source of danger.

The Coakley case is a sound and proper application of the rule laid down in the Buick case. The rule that a manufacturer owes no duty to one with whom he is not in privity arose from a misapprehension of the decision in Winterbottom v. Wright.14 When social considerations became such as to demand that the risk be on the manufacturer directly and of course the public indirectly, exceptions gradually robbed the rule of much of its vitality. The far reaching exception laid down in the Buick case15 and applied in the instant case leads one to doubt seriously whether the rule itself is the law today.16

W. V. D. Clark

Wills: Accumulation for Charitable Purposes: Perpetuities.The essential elements of an accumulation are as follows: (1) A principal or capital fund yielding interest or income, (2) a deferring of the immediate enjoyment and use of the income by virtue of the provisions of a will or deed, and (3) the consequent augmentation of the principal fund because of the deferred use of the income. An illus

13 Supra, n. 7, at p. 389.

1410 M. & W. (Eng.) 109 (1842).

15The rule there laid down has long been the law in England. Heaven v. Pender, (1883) 11 Q. B. D. 503; Elliott v. Hall, (1885) 15 Q. B. D. 315.

16See exhaustive note on the question, and collection of authorities, 17 A. L. R. 672.

'See Hascall v. King, 162 N. Y. 134, 142 (1900). See also, George Gleason Bogert, Funded Insurance Trusts and the Rule Against Accumulations, 9 CORNELL LAW QUARTERLY 113, 128.-"The test [of an accumulation as laid down by the Hascall case] is the disposition of withheld income in such a way as to augment capital." It would seem, however, that there may be an accumulation without an augmentation of the principal fund, and that the first two elements given above are sufficient to constitute an accumulation.

"The statute aims to prevent such a disposition of an estate as would deprive someone of the present enjoyment of each and every dollar of the net income, with the single exception of minors,"-Hascall v. King, p. 145. Sec. 16, N. Y. Pers. Prop. L. provides, in part, as follows: "Validity of directions for accumulation of income. An accumulation of the income of personal property, directed by any instrument sufficient in law to pass such property is valid:

I. If directed to commence from the date of the instrument, or the death of the person executing the same, and to be made for the benefit of one or more minors,

tration of what will constitute an unlawful accumulation under the New York statutes, when directed for the benefit of a charitable organization, is afforded by the case of Matter of Juilliard, 207 App. Div. (N. Y.) 478 (1923).

2

Augustus D. Juilliard died on April 25, 1919. He bequeathed a large part of his estate, over fourteen million dollars, to his executors who were to hold the money in trust and invest it until the organization of the "Juilliard Musical Foundation." The objects of the corporation, which was to bear the above name, were to aid worthy students in the study of music, and to give without profit musical entertainments for the education and instruction of the general public. The testator directed his executors to organize the corporation as soon after his death as possible, and within the lives of two persons in being, and to transfer the entire capital of the trust fund to the corporation upon its organization. The testator foresaw that some time might elapse between his death and the organization of the corporation. During this period the trust fund would earn an income. He directed that part of this income should go to a nephew, and the balance be paid over to the corporation upon its organization. The Surrogate's Court held "that the attempted gift to the Juilliard Musical Foundation of the income which accrued prior to its organization was illegal, as it involved an accumulation for a term of years not dependent upon the minority of an infant." It further determined that the testator died intestate as to that part of the income which he attempted to devise to the corporation, and it passed to his next of kin. The Appellate Division affirmed the decision.

3

then in being, or in being at such death, and to terminate at or before the expiration of their minority.

2. If directed to commence at any period subsequent to the date of the instrument or subsequent to the death of the person executing it, and directed to commence within the time allowed for the suspension of the absolute ownership of personal property, and at some time during the minority of the persons for whose benefit it is intended, and to terminate at or before the expiration of their minority.

3. All other directions for the accumulation of the income of personal property, not authorized by statute, are void. In either case mentioned in subdivisions one and two of this section a direction for any such accumulation for a longer term than the minority of the persons intended to be benefited thereby, has the same effect as if limited to the minority of such persons, and is void as respects the time beyond such minority."

Sec. 61, N. Y. Real Prop. L. contains similar restrictions on accumulations of the fruits and profits of realty. Both sections contain limited exceptions in favor of charitable corporations.

See Sec. 11, N. Y. Pers. Prop. L. See also sec. 12, idem.

The nephew was to receive all the income that was "due and payable" (p. 485) prior to the organization of the corporation. The income that had accrued, but was not yet payable on the date of the organization, was to go to the corporation. Almost a year after the testator's death the corporation was organized. It was found that the nephew's share of the income was $321,823.87. The corporation would have been entitled to a little over 300,000 dollars, being the balance of the income earned prior to the organization.

Instant decision, p. 487.

"See sec. 63, N. Y. Real Prop. L., and sec. 11 of the Pers. Prop. L., to the effect that the income from an unlawful accumulation "shall belong to the persons presumptively entitled to the next eventual estate." In St. John v. Andrews