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principal case seems clearly opposed to this rule and cannot be distinguished from the cases above cited. Some authority, however, is found in its support. portation Co. v. Seeligson, 122 U. S. 519; Bane v. Keefer, 66 Fed. Rep. 610. Expe diency seems better served by adhering to the general rule, by which delay and expense in the adjudication of suits are avoided.

PROPERTY — Easements — ChANGE BY PAROL Agreement.—The plaintiffs had a right of way over land of the defendant. In consideration of the latter's opening a

new way across the land, they agreed orally that the old way might be closed, and this was accordingly done in a manner obviously intended to be permanent. Afterward the defendant obstructed the new way. Held, that the defendant will be enjoined from closing the new way without restoring the old one. Wright v. Willis, 63 S. W. Rep. 991 (Ky.).

The license to use the new way, like any license to do acts on land of the licensor, was, at law, revocable at any time. Nichols v. Peck, 70 Conn. 439. But the license given to the servient owner authorized him to do acts on his own land inconsistent with the licensor's easement, and, being acted upon, was irrevocable. Winter v. Brockwell, 8 East 308. It might be argued that what the defendant received was a license to obstruct the old way only so long as the new way was kept open. If so, the easement might not be permanently lost. See Hamilton v. White, 5 N. Y. 9. But where, as here, the conduct of the parties indicates a permanent abandonment, this construction seems inapplicable, and the easement is therefore extinguished. See Dyer v. Sanford, 50 Mass. 395. The license to close the old way was, however, consideration for a parol agreement to give a new way; and this agreement, being removed from the Statute of Frauds by part-performance, is enforceable in equity, by decree ordering a grant, or by injunction. McManus v. Cooke, L. R. 35 Ch. D. 681. On principle, then, the court should at least have enjoined the obstruction of the new way unconditionally, treating the old way as lost.

PROPERTY EASEMENTS OF LIGHT AND AIR-HIGHWAYS. - The defendant had obtained permission from the city council to construct a passageway over a street the fee of which was in the city. The plaintiff applied for an injunction on the ground that the structure if completed would deprive his adjoining building of light and air. Held, that the injunction should have been granted. Townsend v. Epstein, 49 Atl. Rep. 629 (Md.). See NOTES, p. 305.

QUASI-CONTRACTS FRAUD OF Vendee. DISAFFIRMANCE OF EXPRESS CONTRACT. A sale of goods under a contract giving a specified time for payment was fraudulently procured by the purchaser. Held, that the vendor may ignore the express contract, and sue in assumpsit for goods sold and delivered, before the term of credit has expired. Crown Cycle Co. v. Brown, 64 Pac. Rep. 451 (Or.).

This decision is in accord with the authorities in New York and Kentucky. Roth v. Palmer, 27 Barb. 652; Dietz's Assignee v. Sutcliffe, 80 Ky. 650. On the other side are those in England, Massachusetts, and Illinois. Ferguson v. Carrington, 9 B. & C. 59; Allen v. Ford, 19 Pick. 217; Kellogg & Co. v. Turpie, 93 Ill. 265. The point seems not to have arisen elsewhere. That a fraudulent vendee gets legal title to the goods is shown by the fact that he can give good title to a purchaser for value without notice. The vendor retains merely a right equitable in its nature; but he may disaf firm the entire transaction, and maintain trover for the value of the goods. See BENJ., SALES, 445. Courts denying the quasi-contractual remedy hold that bringing assumpsit in any form amounts to an affirmance of the express contract. The correctness of this view seems open to question. See KEENER, QUASI-CONTS., 198. Mere disaffirmance of the express contract without demand does not revest the legal title to the goods in the vendor, but leaves the parties standing on the relation arising out of the delivery of the goods to the vendce. There seems, therefore, no inconsistency in allowing the quasi-contractual action.

SALES-CONDITIONAL SALE-TRANSFER OF SELLER'S CLAIM TITLE TO CHATTEL. - The defendant's note, given for mules delivered to him, stated that title to the mules was to remain in the seller or order until the note should be paid. The note having matured and been assigned, the seller brings trover for the use of the assignee. Held, that since assignment of the note operated to vest in the defendant an unincumbered title to the mules, it was error to direct a verdict for the plaintiff. Burch v. Pedigo, 39 S. E. Rep. 493 (Ga.).

The question how an assignment of the seller's claim in cases like the present affects the title originally retained for security has been answered by courts in three different ways. One view is that maintained by the plaintiff here, that title remains in the seller, but in trust for his assignee. McPherson v. Acme Lumber Co., 70 Miss. 649. A second is that the legal title passes to the assignee. Esty v. Graham, 46 N. H. 169; Kimball Co. v. Mellon, 80 Wis. 133, 143. The third, that of the principal case, is without discovered precedent. It is further discredited by the rule established for the analogous cases of chattel mortgages, that the dominus of the claim owns the security, either equitably or legally. Honck v. Linn, 48 Neb. 227; cf. Ramsdell v. Tewksbury, 73 Me. 197. In both classes of cases the debtor's own agreement precludes him from claiming title until he pays. Whether the legal title passes to the assignee depends on the intention of the parties to the assignment. The interests of both parties would seem to justify a presumption that it does. In the principal case the provision as to title contained in the note points strongly in the same direction. The actual decision, therefore, though based on an erroneous conception, is apparently right.

SALES FRAUD OF AGENT - ESTOPPEL. - The plaintiff authorized a dock company to deliver the plaintiff's lumber to the orders of one C., the plaintiff's clerk, who had a limited authority to make sales. C. fraudulently obtained transfers into the name of B., a fictitious person, and then in the character of B. sold the lumber to the defendant, who took without notice of the fraud. The plaintiff brings an action for conversion. Held, that since the plaintiff enabled C. to hold himself out as the owner of the goods, he cannot recover. Farquharson Bros. & Co. v. King & Co., 49 W. Rep. 673 (C. A.).

The plaintiff did not give C. the apparent ownership which was relied on by the defendant to his detriment, and though he may have been negligent as to his own interests, it cannot be said that a man owes a duty to others to make it impossible for his agent to rob him. Similar reasoning to that in the principal case would enable every salesman in a shop to pass clear title by estoppel to goods stolen from his employer. Several cases were cited to support the principal decision, but though they contained statements broad enough, these were not necessary to the decisions. Certainly the mere fact of giving another person power to commit fraud is not sufficient to raise an estoppel against the person giving the power. Cole v. North Western Bank, L. R. 10 C. P. 354; Johnson v. Credit Lyonnais Co., 3 C. P. D. 32. Nor does the additional fact that the authority given was intended to be relied upon by others, estop the giver when such authority is exceeded. Swan v. North British, etc., Co., 2 H. & C. 175. The decision of the principal case, therefore, seems wrong. Cf. Lamb v. Attenborough, 1 B. & S. 831.

STATUTE OF LIMITATIONS-PART PAYMENT APPLICATION OF PAYMENTS. — An agent for collection held three notes signed by the defendant, two as maker and one as surety. There was an understanding that any payment made by the defendant on the obligation as surety should also be credited on the notes made by him, the payee of these notes being the principal for whom he stood as surety on the third note. After action on the notes made by the defendant had become barred by the Statute of Limitations, the defendant made a payment, which the agent indorsed on the note on which the defendant was surety, and also on the other two notes. Held, that this was such part payment as would take the two notes out of the statute, and that recov ery may be had on them. Hopper v. Hopper, 39 S. E. Rep. 366 (S. C.).

Where a creditor having several claims against a debtor receives a general payment, he may apply it as he pleases, even towards part payment of claims barred by the statute, whether or not the payment exceeds the amount of the enforceable claims. Mayor, etc., v. Patten, 4 Cranch 317; Mills v. Fowkes, 5 Bing. N. C. 455; contra, Bancroft v. Dumas, 21 Vt. 456. But part payment, to toll the statute, should constitute an acknowledgment of the debt and imply a promise to pay the residue. Tippets v. Heane, 1 C. M. & R. 252. Therefore application of a general payment without the debtor's knowledge or consent should not suffice to take a claim out of the statute, as such application cannot identify the payment as one made by the debtor on this specific claim. Pond v. Williams, 1 Gray 630; Miller v. Cinnamon, 168 Ill. 447. A provision in the South Carolina statute, making part payment equivalent to a promise in writing, does not affect the point raised, as “part payment” in that provision must mean a payment by the debtor on account of the claim sued on. Nothing in the peculiar facts of the principal case justifies the inference that the payment made was

in fact an acknowledgment of the outlawed claims; and failing this there should be no recovery.

SURETYSHIP NOTE OF CORPORATION — LIABILITY OF STOCKHOLDERS. By a California statute each stockholder in a corporation is individually liable for the debts and liabilities of the corporation in proportion to the amount of stock he owns. A note given by a corporation was paid by a surety, who then sought to enforce the stockholders' liability. Held, that he can recover only from those who were stockholders when he paid the note. Yule v. Bishop, 65 Pac. Rep. 1094 (Cal., Sup. Ct.). As is said in the opinion, the statutory liability of a stockholder for the corporate debts arises at the same time as the liability of the corporation. Larrabee v. Baldwin, 35 Cal. 155; Hunt v. Ward, 99 Cal. 612. Consequently only those who owned stock at the time the corporation incurred liability to the plaintiff can be held. The question then is when the liability of a principal to his surety arises. A promise by the principal to indemnify the surety is implied as soon as the surety is bound, and the liability of the principal therefore arises at once. Appleton v. Bascom, 44 Mass. 169; Elwood v. Deifendorf, 5 Barb. 398. Moreover it is generally held that a surety who has not had to pay at the time of a conveyance of land by his principal is sufficiently a creditor within the Statute of Elizabeth to have the conveyance set aside subsequently as fraudulent. Williams v. Banks, 11 Md. 198; but see Williams v. Tipton, 5 Humph. 66. See also Taylor v. Heriot, 4 Desauss. 227. It seems, therefore, that those who were stockholders at the time the corporation gave the note were the proper persons to be charged, and that the case is wrongly decided.

TELEPHONE COMPANIES DISCRIMINATION MANDAMUS. - Held, that where a telephone company unreasonably refuses to supply all applicants with similar facilities without discrimination, it may be compelled to do so by mandamus. State v. Citizens' Telephone Co., 39 S. E. Rep. 257 (S. C.). See NOTES, p. 309.

TORTS RECOVERY FOR DAMAGES RESULTING FROM NERVOUS SHOCK. - The plaintiff suffered a miscarriage as a result of fright caused by the negligence of the defendant's servant. Held, that she can recover for injuries resulting from the miscarriage. Dulieu v. White, [1901] 2 K. B. 669. See NOTES, p. 304.

WILLS RESIDUARY LEGACY EXEMPTION FROM LIABILITY FOR DEBTS. · A testatrix made a residuary legacy to her executrix. By a separate memorandum, not referred to in the will, but signed by the testatrix, and acknowledged by the executrix to create a valid trust, a certain part of the residue was directed to be held in trust for third persons. The remainder of the residue was insufficient to pay the debts of the testatrix. Held, that the debts are payable ratably from both portions of the residue. In re Maddock, [1901] 2 Ch. 372.

If in a will a clear intent is shown to exempt personal property from its primary liability for debts, this intent will prevail. Bootle v. Blundell, 19 Ves. 494 b. A specific legacy is held to indicate such intent. But in the principal case the property in question was not the subject of a specific legacy, for it passed under the residuary clause, and though the trust was specific, this arose outside the will. See Cullen v. AttorneyGeneral, L. R. 1 H. L. 190, 198. The will therefore shows no intent to exempt the property. On the other hand the memorandum of the trust seems in itself insufficient to create an exemption. The legatee is bound by it, since it would be fraud to keep for himself property which was given him on the understanding that it would be held for others. Norris v. Frazer, L. R. 15 Eq. 318. But there seems no ground for holding that the duties of the executrix as such in paying debts are affected by a paper which is not testamentary nor incorporated in the will by reference. The decision in the principal case, therefore, appears to be correct. Cf. Cullen v. Attorney-General, supra.

BOOKS AND PERIODICALS.

MONEY PAID UNder Mistake of FACT. - The rule that money paid under a mistake of fact may be recovered whenever it would be against conscience for the defendant to retain it, has been vigorously attacked in a recent article. Money paid under Mistake as to a Collateral Fact. By Charles Henry Tuttle. 63 Albany L. J. 340 (Sept. 1901). Although this doctrine is almost universally accepted in the form above stated by both courts and text-writers, KEENER, QUASI-CONT., 26, yet the author regards it as a mere appeal to the moral sense of each judge, necessarily resulting in as many conflicting decisions as judges may have variant views of correct moral principles. The science of law is thus converted into the philosophy of ethics. Stability and justice demand, to his mind, that some definite legal rule, based, in so far as is possible, on this moral principle, be adopted. The rule he suggests is that recovery of money paid under a mistake should be allowed where the mistake concerns an intrinsic fact regarding the relations between the plaintiff and the defendant, and denied where it concerns merely an extrinsic or collateral fact.

Mr. Tuttle's characterization of the present doctrine as unworthy the name of a legal rule is hardly justified. In law the rule that all contracts must conform to public policy, and in equity the rules regarding constructive trusts, employ standards fully as indefinite. In deciding what is against conscience a judge must refer, not to his own code of morals, but to that accepted generally by the community. As a result, not only is substantial justice reached, but the decisions have a satisfactory uniformity. Moreover the courts are bound to no defined course, should changed conditions present new phases of old problems. As a substitute for this doctrine, Mr. Tuttle proposes an arbitrary rule. What matters it whether a plaintiff paid money to an undeserving defendant because of a misconception of his relations to such defendant or to a third person? In either case, as the result of a mistake on the plaintiff's part, the defendant has received money for which he has given no return, and this, it is submitted, is the gist of the action. The inequitable results of the suggested doctrine may be illustrated by the following case. The drawee of a gratuitous check, acting under the mistaken belief that he holds funds belonging to the maker, cashes it for the payee. According to this rule the payee could hold the funds against the drawee, merely because the drawee's mistake concerned his relations with the maker, a third person, rather than with the payee. Yet on no principle of justice could the latter defend his position. Mr. Tuttle argues that in this class of cases, the payee having a right revocable by the maker at any time before payment, practically acts as an agent for the maker, and thus, there being only two real parties in interest at the time of payment, the mistaken fact may be treated as intrinsic. But this argument can be regarded only as an attempt to escape from the logical consequences of the author's own doctrine.

It must be admitted that the law would be simplified, and the number of liti. gated cases lessened, could the courts adopt some more definite rule, substantially embodying the present doctrine. But the rule here advocated, though it may prove fruitful of suggestions, hardly seems to meet the requirement. Moreover, as regards authoritative support, its terminology has been employed by only two judges, and its principle has been contradicted by a number of decisions.

ESTOPPEL AS APPLIED TO AGENCY. — In his recent work on Estoppel Mr. Ewart contended that the responsibility of principals for the contracts of agents acting with apparent authority is to be accounted for, not by the doctrine of agency, but by the law of estoppel. EWART ON ESTOPPEL, ch. 26. It has, however, been pointed out that where a third party makes a contract with an agent having apparent authority, the principal is bound whether the party has

knowledge of the usual course of the business in question or not, whether he is misled by knowledge or by ignorance. But if estoppel is relied on to account for such responsibility, the principal would be liable only in the former case, since there must be a misrepresentation and a reliance thereon. 13 GREEN BAG, 50. In a recent article Mr. Ewart attempts to reinforce his position. Estoppel by Assisted Misrepresentation, by John S. Ewart. 35 AM. L. REV, 707 (Sept.-Oct.). The result of his argument is that persons who do not know the facts must succeed, if at all, by proving agency, whereas those who do know the facts may succeed (1) by proof of agency or (2) if there is no agency, then because of the appearance of it, by estoppel. But it is clear, since there is apparent authority, that the same evidence of the previous course of business which is necessary to prove agency in the former case will establish it in the latter, and that in every case of this class it requires the same proof to create an estoppel as it does to establish agency within apparent authority. Thus in the former case the principal's liability can be accounted for only on grounds of agency, whereas in the latter it rests upon agency or estoppel, whichever the third party may choose to invoke. Pickering v. Bush, 15 East 38; Smith v. McGuire, 3 H. & N. 554. In the second case, therefore, the two grounds, so far from excluding each other, exist side by side. The result is that while agency may be invoked to fix the responsibility of the principal in every case in this class, estoppel may, in a limited class of cases, be called in only to give the plaintiff an additional ground for recovery. If this be a correct definition of Mr. Ewart's final position, no exception to it can be taken. But it is to be noted that he thus makes a distinct limitation on the scope of his theory of estoppel, and confines its function within well recognized and proper limits. To found the principal's liability, however, upon estoppel alone is to disregard not only the doctrine that estoppel is to be invoked only when a just result can be reached in no other way, but also the historical fact that the doctrine of agency was well recognized long before courts began to use the language of estoppel.

HANDBOOK OF EQUITY JURISPRUDENCE. By James W. Eaton. St. Paul: West Publishing Co. Hornbook Series. 1901. pp. xviii, 734. 8vo. It is a hard task to deal with so large a subject as that of equity jurisdiction in a single volume of the size of the one under consideration. As is said in the publishers' preface, "The chief difficulty arises from the great extent and variety of the subjects involved in the application of equitable doctrines," and this difficulty is apparent throughout. There is no space in which to discuss the rules laid down, and in consequence there is hardly an expression of the author's personal opinion to be found. The main principles are set forth and then various particular instances under each are stated. Every assertion of the author is supported by authorities, of which an enormous number are cited. Quotations from well known text writers also are freely inserted, to illustrate or explain, when they have hit on happy definitions or modes of expression. In this way a clear, concise statement of the law is obtained.

On the other hand, the almost entire lack of discussion makes the book hardly adequate to the needs of the beginner who wishes to acquire a thorough understanding of the subject. For the benefit of such, however, the early chapters treat the origin and history of equity, the general principles governing the exercise of the jurisdiction, and the important maxims. The growth of equity and its relation to law are shortly discussed, and the effect of modern legislation and the adoption of certain equitable principles by the common law courts are considered, in order to enable the reader to understand the true importance and limitations of this jurisdiction. Subsequently the special topics are taken up in