Covenants of warranty are generally treated as coextensive with covenants for quiet enjoyment. See Raw., Cov., 5th ed., § 114. These two covenants have at least the common characteristic that in general they remain unbroken till eviction by a paramount owner. Real v. Hollister, 20 Neb. 112; Howard v. Maitland, 11 Q. B. D. 695. If, however, when the land is conveyed, the paramount owner already has possession, a breach occurs immediately. Ilsley v. Wilson, 42 W. Va. 757, 772; Shattuck v. Lamb, 65 N. Y. 499; see RAW., Cov., 5th ed., § 139. In the principal case the paramount owner, though his right was at first purely equitable, was always entitled to the possession which he held. Therefore under the principle apparently governing the authorities, that these covenants are broken when the covenantee is excluded from possession by one having a paramount right, and then only, it follows that when the defendant's deed was delivered, his covenant was broken and the statute began running. A former opinion by the Nebraska court adopts such a view. See Heyn v. Ohman, 42 Neb. 693. The present decision, that a second breach occurred when the decree divested the title, is opposed to the established principle of such cases as Real v. Hollister, supra.

PROPERTY - Vested and CoNTINGENT INTERESTS. — Subject to a life interest, a testator devised all his estate to unborn children of his son, but a subsequent clause provided that no such child should acquire any interest unless he should live to the age of thirty. Held, that the devise was not void for remoteness, because children subsequently born took at birth a vested interest. Chapman v. Cheney, 61 N. E. Rep. 363 (III.).

À conditional future interest is vested or contingent according as it is subject to a condition subsequent or precedent, and the nature of the condition depends on the intention with which it is created as shown by the language used. GRAY, Perp., §§ 101, 102, 108. Generally, if the conditional element forms a part of the description, the interest is construed as contingent, while if it is added in a subsequent clause the interest is held to be vested. Price v. Hall, L. R. 5 Eq. 399; Blanchard v. Blan chard, 1 Allen (Mass.) 223. But, although such a clause would ordinarily operate to divest interests previously given, an express direction as to the period of vesting may, on a proper construction of the whole instrument, change the character of those interests, making them contingent. Russel v. Buchanan, 7 Sim. 628. In the principal case the proviso appears to make expressly contingent the interests which from the description alone would be vested on the birth of a child; and the decision, in following the common tendency to favor the vesting of estates, seems to do violence to the expressed intention of the testator.

SALES - STOPPAGE IN TRANSITU-END OF TRANSIT. A consignee having failed to remove his goods from the car within the time required by the rules of the railway company, the latter stored the goods in its sheds, where they remained for two months, subject to freight and storage charges. At the end of this time the consignor notified the company not to deliver the goods. Held, that the right of stoppage in transitu still remained. Brewer Lumber Co. v. Boston & Albany R. R. Co., 60 N. E. Rep. 548 (Mass.).

It is often said that the right of stoppage in transitu exists only so long as the goods remain in the hands of the carrier as carrier. See Langstaff v. Stix, 64 Miss. 171. This would terminate the right of stoppage simultaneously with the carrier's strict liability, as to the exact duration of which different rules prevail. See Richards v. Michigan, etc., R. R. Co., 20 Ill. 404; 9 HARV. L. REV. 153. Most of the cases involving the right of stoppage are consistent with the rule suggested, though commonly the termination of the carrier's strict liability was not the test expressly applied. Cf. Seymour v. Newton, 105 Mass. 272; Buckley v. Furniss, 15 Wend. (N. Y.) 137. Some cases, however, have been found that cannot be harmonized with this view. Cf. Greve v. Dunham, 60 Ia. 108. This is true of the principal case, which furthermore indicates that lapse of time does not affect the right. The rule upon which the decision rests is, however, thoroughly sound. The right of stoppage should remain until delivery, or until the carrier, by virtue of some agreement or previous understanding between himself and the consignee, wholly apart from the original employ. ment as carrier, has constituted himself the agent of the consignee to hold the goods. See Jeffris v. Fitchburg R. R. Co., 93 Wis. 250.

STATUTE OF FRAUDS
DIATE VOLUNTARY CONVEYANCE.

SUBSEQUENT MEMORANDUM - EFFECT ON INTERME- In consideration of the plaintiff's promise to

marry him, X orally promised to convey certain land to her. Subsequently he voluntarily conveyed it to third persons and recorded the deed. The plaintiff, in ignorance of the conveyance afterwards, married him. Sixteen years later X made a deed to her of the same land, reciting the parol agreement. The plaintiff brings suit to be let into possession as owner. Held, that she is entitled to the land. Brinkley v. Brinkley, 39 S. E. Rep. 38 (N. C.). The court rests the decision on the ground that a conveyance by a man just before marriage and without the knowledge of the intended wife is a fraud on her marital rights. It is, however, difficult to see why this should entitle her to more than a decree that as far as the deed interferes with her dower it is void. Leach v. Duvall, 8 Bush (Ky.) 201. See p. 494, supra. Nor is a voluntary deed which is recorded, void under the state code as against a subsequent purchaser. Taylor v. Bateman, 92 N. C. 601. Consequently the plaintiff's claim rests upon the parol agreement, and the subsequent marriage and deed. No exactly similar case has been found, but purchasers for value with notice and attaching creditors have been protected against subsequent memoranda of oral transfers or performance of oral contracts. Asher v. Brock, 95 Ky. 270; White v. O'Bannon, 86 Ky. 93; Sampson v. Thornton, 3 Met. (Mass.) 275. In the principal case the contract with the wife was unenforceable at the time of the first conveyance, which was therefore entirely lawful. Cf. Van Cloostere v. Logan, 149 Ill. 588. Aside from the question of dower, the plaintiff had no equity at that time, and it is submitted that it would be going far to allow a subsequent memorandum to affect the first grantees.

SURETYSHIP-STATUTE OF LIMITATIONS-EFFECT OF DISCHARGE OF PRINCIPAL. - The defendant, having mortgaged his property, sold it to one who promised to pay the mortgage debt. The court found that the mortgagee accepted him as her debtor so that she became bound by the relation of suretyship existing between the mortgagor and the buyer. The statute of limitations ran against the mortgagee's claim as to the buyer, but the mortgagor had been out of the state, so that the statute had not run in his favor. Held, that as the mortgagor was the surety of the buyer, the creditor's right of action against him is barred also. Mulvane v. Sedgley, 64 Pac. Rep. 1038 (Kan.).

As in the ordinary contract of suretyship, the promise of the surety to pay was conditioned on no act of the creditor. Cf Campbell v. Sherman, 151 Pa. St. 70. In order to hold a surety, the creditor need not first sue the principal, for mere indulgence to the principal does not discharge the surety, though he is injured thereby. Hunt v. Bridgham, 2 Pick. (Mass.) 581. As is well known, the statute of limitations does not destroy the obligation of a contract, but merely bars the remedy Cf. Grove nor v. Signor, 88 N. W. Rep. 278. It is not easy, therefore, to find a ground on which to support the principal case. The surety could have protected himself by bringing a bill in equity to compel the principal to pay. Bishop v. Day, 13 Vt. 81. He may also, if required to pay the obligation himself, sue the principal for indemnity, and since this right of action arises only on payment, it is not barred by the running of the statute in favor of the principal as to the original debt. Thayer v. Dan iels, 110 Mass. 345. It is established that if a creditor fails to bring an action against the administrator of a deceased debtor within the time of the special statute applicable in such cases, the surety is not discharged Minter v. Branch Bank, etc., 23 Ala. 762. It seems that in the principal case equally the surety should be held liable. Such was the decision in Whiting v. Clark, 17 Cal. 407; contra, Auchampaugh v. Schmidt, 70 Ia. 642.

TORTS-DRUNKENNESS INTENTIONAL INJURIES. The defendant insured the plaintiff against accident under a policy exempting from liability for injuries intentionally inflicted. The plaintiff was bitten by a drunken man. Held, that the defendant is not liable. Northwestern Benevolent Society v. Dudley, 61 N. E. Rep. 207 (Ind., App. Ct.). See NOTES, p. 487.

TORTS INJUNCTION · - PICKETING. - A strike was declared against the plaintiff by the defendant union. The plaintiff brought a bill in equity against the union and other defendants to restrain them from picketing its factory. Held, that the bill is properly brought. Dayton, etc., Co. v. Metal Polishers, etc., Union, 11 Dec. (Ohio) 643 (Com. Pleas). See NOTES, p. 482.

WILLS CONSTRUCTION — INCONSISTENT DEVISES. A testator devised to his wife "all his real and personal property." By a later clause he devised the real estate, "at the death of my said wife," to his daughters. Held, that a fee simple is given to the wife, and the devises to the daughters are void as repugnant. Fenstermaker v. Holman, 61 N. E. Rep. 599 (Ind., App. Ct.).

In Indiana the common law rule ordinarily prevails, that a general devise gives only a life estate; but where a will disposes of realty and personalty in the same words, since the entire estate in the personalty passes, the devise of the realty is held to pass the fee. Mulvane v. Rude, 146 Ind. 476. The purpose of this exception is clearly to carry out the testator's intention, the fundamental object in construing a will. Finlay v. King's Lessee, 3 Pet. 346, 377; Whitcomb v. Rodman, 156 Ill. 116. But this intention should be gathered from the entire will. Dickison v. Dickison, 138 Ill. 541; L'Etourneau v. Henquent, 89 Mich. 428. The court decided the principal case on the ground that where a devise in fee is made, a later restriction fails. Yost v. McKee, 179 Pa. St. 381. A rule of construction, laid down to carry out the testator's intention, is thus regarded as a fixed rule of law, and invoked to defeat what, viewing the will as a whole, appears to be the testator's intention. The sound position would seem to be that mere rules of construction should always yield to clearly expressed intention; and accordingly the wife should have been held to have only a life estate. See Matter of James, 146 N. Y. 78.

WILLS EFFECT OF BENEFICIARY'S DEATH ON DISTRIBUTION OF INCOME VESTING OF PRINCIPAL. A fund was bequeathed to trustees to pay the income to J. for the support of herself and infant children, each child on coming of age to receive a share of the income, "the same being divided into as many equal shares as there shall be children . . . and one more share for" J. At J.'s death the trustees were to pay over the fund to the children "and if any of said children shall have died leaving issue, such issue shall receive their parent's share." One of the children attained majority and died testate in his mother's lifetime leaving no issue. Held, that he had no interest in the income which he could dispose of by will, and that the entire future income should be redistributed among the surviving beneficiaries. Dougherty v. Thompson, 167 N. Y. 472.

The will contained no provision for the contingency of a child dying without issue before the mother In supplying this omission the court assumes, fairly enough, that, except when otherwise provided, the income was intended to go as nearly as possible in the same way as the principal. In construing the provision as to the distribution of the fund, the court infers from the omission above-mentioned, coupled with the devise to issue of deceased children, that any child's right to share in the principal was intended to be contingent on his surviving the mother. This inference, which serves to support the decision as to the income, is one neither necessary nor reconcilable, with the authorities. Postponement of distribution, if due merely to the existence of life interests, does not prevent rights in a principal fund from vesting immediately; and this though the intended class may increase before the distribution. In re Bennett's Trust, 3 K. & J. 280; Stanley v. Stanley's Adm., 92 Va. 534; Budd v. Haines, 52 N. J. Eq. 488. In the principal case, the shares having vested, the issue of deceased children would take by executory devise, but in default of such issue there is no provision by which the shares could be divested. See Strother v. Dutton, 1 DeG. & J. 675; cf. Smither v. Willock, 9 Ves. Jun. 233. These considerations seriously discredit the decision as to the income.

BOOKS AND PERIODICALS.

TESTS OF INSANITY IN CRIMINAL CASES. - The persistence of the knowledge of right and wrong test of insanity in criminal cases is one of the most striking instances of the conservatism of the law. This rule of responsibility was based on early medical error and cannot be reconciled with the doctrine of criminal intent in the light of modern scientific knowledge, yet it retains its place in England and in a majority of the jurisdictions in this country. The latest assault on this rule is in the form of a plea for the substitution of the irresistible impulse test. Insanity in Criminal Cases, by W. H. Parry, 63 Albany L. J. 429, 459 (Nov., Dec., 1901). This broader doctrine recognizes power both to distinguish and to choose between right and wrong as necessary for responsibility. It has received strong support in this country. Montgomery v. Commonwealth, 88 Ky. 509; see 8 HARV. L. REV. 360. Mr. Parry gives at length the testimony of many alienists in its favor.

It may be conceded that the rule advocated would allow the defence of insanity in a large majority of the cases where justice requires it. There is however a view which more completely reconciles law and medical science, the argument for which Mr. Parry does not seem to answer adequately. According to this doctrine there should be no absolute test and the inquiry of the jury should not be limited to any particular phase of the disease. The fundamental question of responsibility is whether the act is the product of insanity without the coöperation of a guilty motive. The insanity may cause the act by blinding one to the distinction between right and wrong, or by overpowering the will and compelling one to do what he recognizes to be wrong. It may work in other ways as by perverting a man's nature so that, purely as a matter of disease, he deliberately and voluntarily does what he knows is wrong. There are said to be patients so afflicted in every hospital for the insane, and under the test proposed by Mr. Parry these men would be punished for their insane acts. Since the forms and manifestations of insanity are so varied, there can be no absolute test applicable to all cases. The courts may and should point out ways in which the insanity may have acted, leaving the man free from responsibility, but they ought not to limit the range of the inquiry to one or several tests. This view is not without support in the courts. State v. Pike, 49 N. H. 399. Mr. Parry, however, argues that definite rules are necessary for the guidance of jurors, who are almost inevitably ignorant of diseases of the mind. But after the jury have been given the general legal rule, the needed enlightenment on the question of scientific fact in the application of that rule to the particular case comes most properly and surely from the testimony of medical experts. The gain in having a sound and just rule to save ail truly insane men from punishment outweighs any increased danger of the abuse of the defence.

CONTRACTS IN RESTRAINT OF TRADE.-A brief but suggestive article as to the extent to which agreements restricting trade should be upheld appears in a recent periodical. "Is a Contract in Restraint of Trade Sustainable as an Independent Contract?" by Frederick H. Cooke, 35 Am. L. Rev. 836 (Nov.Dec., 1901). The author contends that only such restraints should be sanctioned as are incidental to a larger contract, as of sale or employment.

He argues that the reason for the general rule invalidating agreements in restraint of trade is "the evil produced by the withdrawal of a capable member of society from active production;" that this evil may at times be tolerated when, by the transfer of business, another member of society is given the opportunity, new or enlarged, of engaging in the same line of activity, but not otherwise; that the independent contract involves no such transfer, and consequently is not to be sustained.

Two criticisms may be passed upon the author's position, without denying his conclusion. First, he waives all discussion as to whether the restrictive agreement tends to suppress competition. The established test to be applied to such an agreement is that of "reasonableness;" the restraint must be no larger than is necessary for the fair protection of the parties and consistent with the interests of the public. Nordenfelt v. Maxim, etc., Co., [1894] A. C. 535. From the standpoint of public interest, at least, it is clearly a material question whether or not the restraint will operate to suppress competition and foster monopoly. Secondly, the author apparently assumes that independent contracts necessarily involve no transfer of business. But where necessaries form the subject-matter of the agreement, it is plain that transfer of business to others must ultimately follow, though not necessarily to the covenantee alone. In other agreements as well, it may result as a natural consequence. If, then, the question of monopoly were waived, and a decisive reason for the author's position were, as he suggests, the transfer of business, it seems that at least some independent contracts would stand on the same footing with ancillary agreements; and the distinction urged would have but little weight.

But though the distinction can hardly rest on the ground suggested, it may be conceded that it is not without force. Public policy demands that a covenant ancillary to the conveyance of a business should, if reasonable, be enforced; otherwise the whole contract for the sale of a business and its good-will might prove worthless. The independent agreement, however, is supported by no such consideration; and frequently its obvious purpose is to suppress competition. This, it seems, is the basis of the distinction. The question of monopoly, far from being immaterial, is of clearest importance.

That the distinction suggested is not without recognition is apparent from a recent Alabama case. Tuscaloosa Ice Mfg. Co. v. Williams, 28 So. Rep. 669. To the same effect is a dictum in More v. Bennett, 140 Ill. 69. See also 2 BEACH, CONT., § 1575. In some instances, however, though rarely, the independent agreement has been sustained. Leslie v. Lorillard, 110 N. Y. 519.

RELIGIOUS BELIEF AS A DEFENCE FOR FAILURE TO PROVIDE Medical Attendance. The legal responsibility of one who substitutes in place of regular medical attendance a mode of treatment for illness prescribed by a religious body is a subject of growing importance. It is of interest therefore to find the criminal liability of parents for a failure under such circumstances to provide medical attendance for infants treated in a recent article by John H. S. Lee, 9 Am. Law. 565 (Dec. 1901). Certain preliminary questions are shown by the author to be well settled. It is established that religious belief is not a defence for failure to perform a legal duty, and that there is a legal duty at common law resting on a parent to furnish necessaries to his child. Proper treatment and care when the child is ill are clearly necessaries, and such treatment might often include medical attendance.

This series of propositions, however, merely leads up to the real difficulty of the subject. It is obvious that a parent is not always guilty of manslaughter for the death of a child resulting from failure from religious scruples to provide medical attendance. Mr. Lee makes criminal responsibility turn on the question "whether the defendant did in the particular instance act as a reasonably prudent man in like circumstances should have acted." This rule fails to recog nize that the question is of the existence of the guilty mind, of wilful or grossly negligent omission to perform the duty, without which there can be no criminal liability at common law. The difficulty in these cases is that men who have done the best they knew cannot be held criminally liable. The plea of religious belief does not set up a defence for the violation of the duty, it negatives its very violation. The parent may make an ignorant and foolish mistake, but if he exercises his best judgment for the good of the child, he cannot be held guilty of culpable homicide. In such a case he would have no intention to avoid the performance of his duty, but would rather have a desire to perform it in the