Barker, [1899] 1 Ch. 300. Some American courts accept the English doctrine. Oakdale Mfg. Co. v. Garst, 18 R. I. 484. Others have extended the old rule so far as to make the United States, rather than the state, the maximum area over which the restriction may extend. Diamond Match Co. v. Roeber, 106 N. Y. 473; but see Tode v. Gross, 127 N. Y. 480; and see also Beal v. Chase, 31 Mich. 490. Arbitrary limitations as to space would, however, seem logically to apply only within the jurisdiction of the court imposing them. The English view seems on principle the sound one, and towards it the American decisions seem generally to be tending. See 4 HARV. L. REV. 128; Anchor Electric Co. v. Hawkes, 171 Mass. 101.

CORPORATIONS ESTOPPEL BY ACTS OF SHAREHOLDERS. Several persons who, as assignors of a patent, were estopped to dispute its validity, formed a corporation of which they were the sole shareholders. This corporation was sued by the assignees of the patent for an infringement. Held, that the corporation is bound by the estoppel. Force v. Sawyer-Boss Mfg. Co., 111 Fed. Rep. 902 (Circ. Ct., E. D. N. Y.).

It would seem that when several persons, merely for convenience in conducting their business, form a corporation which they immediately control and intend to continue to control, and all the stock is owned by them or by others not innocent holders, the corporation ought to be bound by any estoppel, notice, or specifically enforceable negative contract by which its members were previously bound. National Conduit Co. v. Connecticut Pipe Co., 73 Fed. Rep. 491; Davis Co. v. Davis Co., 20 Fed. Rep. 699; Beal v. Chase, 31 Mich. 490. A rule at least as broad as this is necessary to prevent such persons from escaping their obligations under the thin disguise of incorporation. It has been held, however, that the principle of the above cases extends only to corporations formed for the purpose of escaping the restraint in question. Moore & Handley Co. v. Towers Co., 87 Ala. 206. This restriction is not borne out by the cases as a whole and, while apparently resting solely on assumed expediency, would work injustice. The principal case therefore seems correct, although no fraudulent intent clearly appears. A much more comprehensive rule than that above is laid down by one text writer, but the authorities cited are not sufficient to sustain it in full. See 4 THOMPS., CORPS., §§ 5249, 5269.

DAMAGES APPROPRIATION OF WATER POWER. The plaintiff was entitled to the use of a water power, which the defendant had appropriated. The plaintiff had not desired to use the power and so had suffered no actual damage. Held, that the plaintiff's measure of recovery in tort is the fair rental value of the use of the water during the period it was taken. Green Bay, etc., Water Co. v. Kaukauna Water Power Co., 87 N. W. Rep. 871 (Wis.). See NOTES, p. 577.

DAMAGES BENEFITS - MITIGATION. — The owners of a ship had her bilge keel fitted while she was in dry dock for other repairs, for the expense of which the defendant was liable. The additional work did not cause any increase in the dock charges. Held, that the defendant is liable for the entire dock charges. The Acanthus, 112 L. T. 153 (P.). See NOTES, p. 572.

DECEIT FALSE STATEMENT OF CONSIDERATION IN A CONVEYANCE. - The plaintiff declared that she had bought certain notes secured by property deeded to a trust company; that the consideration stated in the conveyance was grossly misrepresented by the defendant for the purpose of cheating and defrauding the plaintiff and others; that she had relied on the statement in buying the notes, and that the notes were worthless. The defendant demurred. Held, that the plaintiff has not stated a cause of action. Leonard v. Springer, 34 Chic. Leg. News 121 (Ill., App. Ct.). See Notes, p. 576.

EQUITY-BILL FOR RESCISSION. INADEQUACY OF LEGAL REMEDY. - The grantor conveyed her farm to her nephew, who in return covenanted that he would live with her on the farm and support her during the rest of her life. After performing for a few months, the nephew left the farm, and refused to carry out his covenant further. Held, that the grantor may have a decree declaring the deed null and void and placing the parties in statu quo. Lowman v. Crawford, 40 S. E. Rep. 17 (Va.). As the performance of the covenants involved elements of personal caie and attention to the grantor, as well as her continued residence in her old home, the legal remedy was in no wise adequate. Moreover, the whole purpose of the transaction had failed, and it would seem to be a proper place for equity to act. Accordingly under

like circumstances the trend of authority in this country is with the case. Savannah, etc., Ry. Co. v. Atkinson, 94 Ga. 780; Cooper v. Gum, 152 Ill. 471. Exactly the same point seems never to have come before the English courts. But, owing to their literal enforcement of the rule requiring restitution in specie in all cases of rescission, it seems likely that they would reach an opposite result. Cf. Hunt v. Silk, 5 East 449. The principal case seems to show a decided advantage in the more liberal construction of this rule by the American courts. Cf. Brewster v. Wooster, 131 N. Y. 473. The form of the decree, however, appears to be wrong. The deed vested the title in the grantee and, in absence of statute, it cannot be revested in the grantor except by a reconveyance. Cf. Hart v. Sanson, 110 U. S. 151. Compensation should of course be made to the grantee for services actually rendered.

EQUITY LIQUIDATED DAMAGES-RELIEF ADDITIONAL TO INJUNCTION. — A contract of employment bound the defendant not to compete in business with the plaintiffs, within certain limits, after leaving their service, and named 100 as liquidated damages in case of breach. The defendant did compete, and the plaintiffs sued for an injunction and for the liquidated damages. Held, that the plaintiffs may elect either of these remedies, but cannot have both. General Accident Assurance Corp. (Limited) v. Noel, 18 T. L. R. 164 (K. B.).

Apparently the contract was interpreted to mean that the plaintiffs might, in case of a breach, compel either specific performance or payment of the liquidated sum, at their option; a payment, of course, operating to release the defendant from further obligation. Sainter v. Ferguson, 1 Mac. & G. 286. This would not be the usual alternative contract, where the option lies with the defendant, but such a construction seems necessary to support the case. If, on the other hand, the contract merely attempts to liquidate the damages, without giving an option on either side, the plaintiffs should recover only the amount of the damage actually sustained. To give the full sum after an apparently slight breach, would be enforcing a penalty and open to objection on that ground. Lampman v. Cochran, 19 Barb. (N. Y.) 388; Kemble v. Farren, 6 Bing. 141. The existence of the agreement for liquidated damages is no obstacle to granting an injunction. Jones v. Heavens, 4 Ch. D. 636; Ropes v. Upton, 125 Mass. 258. It follows that the agreement would not bar the compensation for past damage usually given with such an injunction. Under either construction of the contract, the injunction should carry with it this compensation as additional relief.

EVIDENCE-CRIMINAL CONVERSATION-STATEMENTS MADE BY PLAINTIFF'S WIFE TO THIRD PERSONS.-Held, that in an action for criminal conversation, brought by a husband, oral statements made by the wife to third persons in the absence of both the plaintiff and the defendant, indicating the state of the wife's feelings toward the husband, are not admissible. Billings v. Albright, 66 N. Y. App. Div. 239.

The relations between the husband and the wife before and, according to some authorities, after the defendant's interference are to be considered by the jury in determining the amount of damages. Harter v. Crill, 33 Barb. (N. Y.) 283; Pretty man v. Williamson, 1 Pen. (Del.) 224. The feeling of the wife toward the husband is therefore directly in issue. The mental condition of a person at any particular time may be proved by his declarations made at that time. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285. The court in the principal case recognizes this rule by admitting the statements of the wife to the husband to prove her feeling toward him; and no good reason appears for distinguishing her declarations to third persons. The court excludes them on the ground of the danger of collusion. This danger is equally present in admitting statements made to the husband, and in case of declarations prior to the misconduct, is not serious. The weight of authority is in favor of admitting such declarations. Palmer v. Crook, 73 Mass. 418. The tendency is to exclude statements after the act, though if the subsequent relation between husband and wife is in issue. they are admissible in theory and should be received on proof of good faith.

INSURANCE-EVIDENCE

POLICY.

PAROL EVIDENCE RULE APPLIED TO INSURANCE An insurance policy contained a provision that the insurer should not be liable if other insurance existed upon the property covered by the policy. Held, in an action upon the policy, that this provision cannot be avoided by evidence that the agent of the insurer who issued the policy, knew of the existence of other insurance at the time of its issuance. Northern Assurance Co. v. Grand View Bldg. Assoc., 22 Sup. Ct. Rep. 133. See NOTES, p. 575.

One in possession of land,

but not claiming title, insured buildings thereon under a bona fide belief that he owned the buildings. Held, that he may recover on the policy. American, etc., Co. v. Don lan, 66 Pac. Rep. 249 (Col., C. A.). See NOTES, p. 573.

INSURANCE-MISSTATEMENTS IN APPLICATION - BLANKS FILLED by Agent. An agent, appointed to solicit insurance, forwarded to his company an application for an accident insurance policy, purporting to contain the answers of the applicant to the questions contained therein. It was in fact filled out by the agent, and the applicant signed it without reading it. Some of the answers were untrue in material respects, owing to the fraud or gross negligence of the agent. Upon the basis of this application a policy was issued. Held, that no recovery can be had on the policy. Biggar v. Rock, etc., Co., 18 T. L. R. 119 (K. B.).

Despite the misrepresentations, the company should be bound if it is affected with the knowledge of the agent. See NOTES, p. 575. This would be true if he had a share in the making of the contract, or if it was one of the duties of his employment to report upon matters connected with the application. See Smith v. Farmers', etc., Co., 89 Pa. St. 287; 15 HARV. L. REV. 489. But such agents by general custom have very limited authority. See McCoy v. Metropolitan, etc., Co., 133 Mass. 82. Accordingly knowledge on their part has been held immaterial. Ryan v. World, etc., Co., 41 Conn. 168. Such a view seems correct in the principal case, where appar ently the agent's duty was merely to solicit and forward applications; so it is enough to defeat the policy that it was issued on the basis of representations materially unVose v. Eagle, etc., Co., 6 Cush. (Mass.) 42. The court reaches the same result by considering the agent as the plaintiff's agent in making out the application. This view, though not generally accepted, is supported by some authority. Wilson v. Conway, etc., Co., 4 R. I. 141; but cf. Jordan v. State Ins. Co., 64 Ia. 216. It is also defensible on theory, as an agent may act for two parties where his duties do not require him to perform incompatible acts. Hinckley v. Arey, 27 Me. 362. The decision, thus supportable on two grounds, is nevertheless against the weight of authority. See Rockford Ins. Co. v. Nelson, 75 Ill. 548; but cf. New York, etc., Co. v. Fletcher, 117 U. S. 519. The plaintiff should, in any case, recover the premiums paid. New York, etc., Co. v. Fletcher, supra.

true.

MORTGAGES ASSIGNEE ASSUMING MORTGAGE DEBT PAYMENT BY MORTGAGOR. The plaintiff, having mortgaged his land, made a conveyance to the defendant, who promised to pay the mortgage. The plaintiff paid the mortgage debt after maturity, and had the mortgage discharged of record. He then sued the defendant for the amount paid. Held, that the court should not have directed a verdict for the plaintiff. Keller v. Lee, 66 N. Y. App. Div. 184.

The court, to support its opinion, cites various New York cases which say that the land is the primary fund for the debt, and that the purchaser's contract is only to indemnify the mortgagor in case the land does not satisfy the debt, and the mortgagor is obliged to pay. On this ground specific performance of the purchaser's promise has been refused. Slauson v. Watkins, 86 Ñ. Y. 597. Yet the original mortgagor was under a personal obligation to the mortgagee. Cf. Jackson v. Bevins, 49 Atl. Rep. 899 (Conn.). This the mortgagee has never released, nor has he bound himself first to seek satisfaction from the land. Moreover a mortgagee has been allowed to recover on a purchaser's promise without foreclosure. Thorp v. Keokuk Coal Co., 48 N. Y. 253; Beeson v. Green, 103 Ia. 406. Further, recovery by the mortgagor against the purchaser has been allowed even before the former has paid. Baldwin v. Emery, 89 Me. 496. These cases show that the purchaser is under a personal obligation for the whole debt. As between themselves the mortgagor is in the position of a surety for the purchaser. Murray v. Marshall, 94 N. Y. 611. The plaintiff's payment of an obligation on which he was personally liable, as in the case of an ordinary surety, cannot be regarded as voluntary. Cf. Pitt v. Purssord, 8 M. & W. 538. The mortgagor should therefore get indemnity; and this has generally been allowed when he has had to pay. Bolles v. Beach, 22 N. J. Law 680; Lappen v. Gill, 129 Mass. 349.

MUNICIPAL CORPORATIONS-LIMITATION OF INDEBTEDNESS OBLIGATION ENFORCEABLE UP TO LIMIT. - The defendant school district contracted to buy from the plaintiff the material for a building, thereby increasing its indebtedness beyond the constitutional limit. Held, that the plaintiff, after completion of the building, can

recover on the contract that amount for which the district could legally have become indebted. McGillivray v. Joint School Dist., 88 N. W. Rep. 310 (Wis.).

The general rule is well established that a municipal corporation, having incurred an obligation which increases its indebtedness beyond the constitutional limit, is liable up to such limit. Francis v. Howard County, 50 Fed. Rep. 44. The weight of authority is in accord with the principal case in applying the rule even to indivisible contracts, when fully performed by the other party. Culbertson v. City of Fulton, 127 Ill. 30; School Town of Winamac v. Hess, 151 Ind. 229. Some authorities, however, under such circumstances distinguish divisible and indivisible contracts and hold the latter wholly void. See Hedges v. Dixon County, 150 U. S. 182; Board, etc., of Lake County v. Standley, 24 Col. 1. The distinction does not seem justified. It is the incurring of the indebtedness which is prohibited by the constitution, and the contract or bonds are valid, though unenforceable as to the excess. The defence is that of legal impossi bility, and should be good only as to the part made impossible. The indivisibility of the contract is then immaterial and should not affect the obligee's right. The result is peculiarly just in the principal case, since it is free from the difficulty present in the common case of an issue of bonds, in which the loss must be divided among different obligees.

MUNICIPAL CORPORATIONS POLICE POWER ALIGHTING FROM MOVING TRAINS. Under a charter giving power to pass all necessary police ordinances, the city of Chicago passed an ordinance making it illegal for persons to get on or off moving trains without permission of those in charge. Held, that the ordinance is invalid as not being a necessary police regulation. Wise v. Chicago & N. W. Ky. Co., 61 N. E. Rep. 1084 (Ill., Sup. Ct.).

As the court very properly considers "necessary police ordinances " to mean police ordinances reasonably conducive to the morals, safety, and good order of the general public, the question reduces itself to whether the matter regulated here falls within the police power. The courts of Illinois have always taken a narrow view as to the scope of this power. Toledo Ry. Co. v. Jacksonville, 67 Ill. 37; Ritchie v. People, 155 Ill. 98. In the present case, however, the court would seem to be following a well defined public sentiment. Courts have a prejudice, common in all American communities, against interference with personal liberty in matters of this character, by legislation which they consider as designed primarily to protect the individual against himself without sufficient public end. So in the only case found dealing with an ordinance closely similar to that in the principal case, the same view was taken. Mills v. Missouri, etc., Ry. Co., 59 S. W. Rep. 874 (Tex.); cf. Ex parte Smith, 135 Mo. 223. Considered more broadly, however, such laws may fairly be treated as within the power to guard the safety of the community. Cf. Ah Lim v. Territory of Washington, I Wash. St. 156; Birkett v. Chatterton, 13 R. I. 299. The decisions on the validity of the eight-hour laws would seem to be in point. See 12 HARV. L. REV. 61; 13 ĺbid.

222.

PERSONS INFANTS LIABILITY IN TORT. The defendant, an infant, contracted to thresh grain stored in a building upon the plaintiff's land. Owing to the defendant's negligence in the conduct of the work, the grain and the building containing it were destroyed by fire. Held, that the defendant is not liable in an action of tort. Lowery v. Cate, 64 S. W. Rep. 1068 (Tenn.).

The general rule that an infant is liable for his torts, is subject to the rather indefinite qualification, that when the tort arises in connection with a contract, he is com monly held not liable. See Schenk v. Strong, 4 N. J. Law 87. In certain cases, however, of fraud and wilful wrongdoing this qualification is more or less generally held to be inapplicable. See 14 HARV. L. REV. 71; Burnard v. Haggis, 14 C. B. N. s. 45; but cf. Penrose v. Curren, 3 Rawle (Pa.) 351. But in actions based on negligence involved in acts performed under the contract, the infant is held not liable, on the ground that such actions are virtual evasions of his right to avoid his contracts. See Jennings v. Rundall, 8 T. R. 335. This reason is applicable only when the damage suffered would be recoverable in contract against an adult. Assuming that to be true in the principal case, it may still be distinguished as being the only case found where there was injury to property not concerned in the contract, and courts might well go so far as to allow recovery under such circumstances. No decisions can be cited sustaining this distinction, but it accords with the tendency shown by some courts to restrict the infant's immunity from the consequences of his wrongful acts. See Kilgore v. dan, 17 Tex. 341; Rice v. Boyer, 108 Ind. 472.

PERSONS-INFANTS' CONTRACTS - AVOIDANCE DURING MINORITY. - A minor, having been injured by the fault of a railway company, accepted a sum of money in full discharge of the company's liability. While still an infant she sued in tort, asserting her disaffirmance of the contract of compromise. Held, that she cannot avoid the contract while within age. Lansing v. Michigan Cent. Ry. Co., 86 N. W. Rep. 147 (Mich.).

Earlier authorities in the same state have gone as far as this case goes. Dunton v. Brown, 31 Mich. 182. Elsewhere it is well settled that an infant may avoid his contracts while within age. Stafford v. Roof, 9 Cow. (N. Y.) 626. On the other hand it is universally held that an infant may not conclusively avoid his conveyances of land until he is of age. Zouch v. Parsons, 3 Burr. 1794. But this inconsistency is only an apparent one, since the infant may enter and take profits during his minority, exercising his election when reaching full age. Bool v. Mix, 17 Wend. (N. Y.) 119. The principal case goes on the ground that the want of discretion that prevents an infant from making a binding contract should also prevent him from disaffirming one that may be beneficial to him. But the loss that he may often suffer by being held to disadvantageous contracts until of age, would seem a weightier consideration than the danger of losing benefits by unwise disaffirmance. The rule in the principal case seems never to have been carried to the length of allowing judgment to go against an infant in suit on the contract, and it is doubtful if any court would carry it so far.

PROPERTY BAILMENTS - ACTION BY BAILEE AGAINST THIRD PERSON. Property in the hands of a bailee was destroyed by the negligence of a third person. Held, that the bailee is entitled to recover the value of the property, though before such recovery he would have a good answer to an action by the bailor. The Winkfield, 18 T. L. R. 178 (Eng., C. A.).

The decision in the principal case is in accord with American authority and with the early cases in England. Ullman v. Barnard, 7 Gray (Mass.) 554; Burton v. Hughes, 2 Bing. 173; Swire v. Leach, 18 C. B. N. s. 479. Furthermore it would seem to be sound historically. See HOLMES, COMMON LAW, ch. 5. Originally the bailee alone could sue the wrongdoer, since he alone had possession; though after recovery he was liable to account to his bailor. At a later day the bailor was allowed to recover against the wrongdoer, provided he brought suit before the bailee. Then, by a curious inversion of reasoning, it came in time to be held that a bailee could not recover the value of the property in a suit against the wrongdoer, unless, even without such recovery, the bailee would himself be liable in an action by his bailor. Heydon and Smith's Case, 13 Co. 67, 70. This inverted reasoning was the ratio decidendi in the leading English case, which was thought to have fixed the law to the effect that a bailee could recover only the damage to his own interest. Claridge v. South Staffordshire Tramway Co., [1892] 1 Q. B. 422. See 6 HARV. L. REV. 156. By expressly overruling that decision, the Court of Appeal in the principal case has restored the orthodox doctrine on this point.

SALE BY TENANT IN COMMON

PROPERTYTROVER AGAINST PURCHASER. A tenant in common of land, without the consent of his co-tenant, gave the defendant a license to cut timber on the land and take it for his own exclusive use. The defendant did so. Held, that the injured co-tenant may recover for conversion. Sullivan v. Sherry, 87 N. W. Rep. 471 (Wis.).

The general American rule is that a tenant in common of personalty who sells the entire property without authority, is liable in trover to his co-tenant. Weld v. Oliver, 21 Pick. (Mass.) 559. Several courts, while adopting this rule, have protected the purchaser on the ground that the sale passed only the moiety of his vendor, making him merely a co-tenant with the plaintiff. Dain v. Cowing, 22 Me. 347. See Osborn v. Schenck, 83 N. Y. 201. This doctrine has been applied to divisible as well as indivisible chattels. Kilgore v. Wood, 56 Me. 150. The proposition, however, that such a conveyance, not in market overt, may be tortious on the side of the grantor, but innocent on that of the grantee, seems indefensible; and in general, exclusion under a claim of title from a wrongful grantor is sufficient to support trover. Hollins v. Fowler, L. R. 7 H. L. 757. The fact that the defendant in the principal case claims, not under an ordinary sale of chattels, but under a license to cut and remove timber, seems not to affect the principles applicable. The decision accords with the generally recognized principle of Hollins v. Fowler, supra, and is supported by one parallel case. Van Doren v. Balty, 11 Hun (N. Y.) 239.