PROPERTY-STATUTE OF LIMITATIONS-RIGHT TO Support oF LAND. The defendant made excavations in his coal mines beneath the plaintiff's land, and thereby caused the surface to cave in. Held, that the plaintiff's right of action accrued, not at the time of subsidence, but at the time of mining. Noonan v. Pardee, 50 Atl. Rep. 255 (Pa.). See NOTES, p. 574.

PROPERTY-TRANSFER OF TITLE AFTER JUDICIAL SALE - RELATION. — The interest of the assignee of a lease was sold under a judicial decree, but no deed was given to the purchaser. Later the assignee was sued for rent due since the sale, upon the covenant in the lease. After the beginning of the action a deed was given to the purchaser. Held, that the deed, operating by relation, divested the defendant of his legal title from the date of the sale, and is therefore a good defence. Mayor of Bal timore v. Peat, 50 Atl. Rep. 152 (Md.).

Deeds of property sold at judicial sales are generally held to vest the title in the purchaser from the time of the sale. Pennsylvania S. V. R. R. Co. v. Cleary, 125 Pa. St. 442. But the doctrine of relation is not considered applicable when it will injure the preexisting rights of a third person. Jackson v. Bard, 4 Johns. (N. Y.) 230. It is difficult to see why in the principal case the rights of the plaintiff are not injured by allowing the deed to relate back, since he is put to the expense of two actions and exposed to the uncertainty of recovery against another person. But even were this reason invalid, it is doubtful if the doctrine of relation should be applied where the act the effect of which must be carried back, is done after the beginning of the action. Some jurisdictions have permitted such a use of the principle. Jackson v. Ramsay, 3 Cow. (N. Y.) 75. Other cases have held, more properly it would seem, that the fiction cannot be used to prove something which was untrue at the time the action was begun, as this would be an unnecessary and illogical extension of the doctrine. Presnell v. Ramsour, 8 Ired. (N. C.) 505.

PUBLIC SERVICE COMPANIES REFUSAL TO FURNISH NATURAL GAS-INSUFFICIENT SUPPLY. The defendant, a natural gas company exercising the right of eminent domain, refused to furnish gas to the plaintiff, owing to an unavoidable defi ciency in its supply. Held, that the plaintiff must be supplied with gas, even though serious inconvenience to prior consumers results. State ex rel. Wood v. Consumers Gas Trust Co., 61 N. E. Rep. 674 (Ind., Sup. Ct.). See NOTES, p. 571.

POTENTIAL EXISTENCE.

SALES-CHATTEL MORTGAGES In a jurisdiction in which a chattel mortgage passes only a legal lien, and not the title, a mortgage of certain hogs and of their increase was given to the plaintiff. Before foreclosure the defendant attached the young of the hogs, born after the execution of the mortgage. Held, that the plaintiff has no right, as against the defendant, to the young of the animals. Battle Creek Valley Bank v. First Nat. Bank, 88 N. W. Rep. 145 (Neb.). That legal rights may be passed in the future increase of property already owned, is a generally recognized doctrine. Grantham v. Hawley, Hob. 132. So it has been held that the unborn offspring of animals may be sold, and the title passes when they are born. Hull v. Hull, 48 Conn. 250. The same rule has been applied to chattel mortgages, in jurisdictions where a mortgagee gets title. Rogers v. Highland, 69 Ia. 504. So, too, it has been held that a lien may be given on unborn animals. Sawyer v. Sawyer, 70 Me. 254. Although there has been some tendency to limit, in various ways, the application of the doctrine under discussion, there seems to be no authority and no valid reason for distinguishing in this regard between lien and title, as is done in the principal case. The court mainly relies upon a case in which the young were not included in the terms of the mortgage, and which therefore is hardly authority. Shoo bert v. De Motta, 112 Cal. 215. The question has been decided in the opposite way in another jurisdiction, according to what would seem the better reason. First Nat. Bank v. Western Mortgage Co., 86 Tex. 636. No other exactly parallel cases have been found.

SALES-DAMAGES - BREACH OF WARRANTY. · The plaintiff sold a machine to the defendant, warranting it to be of a certain capacity. There was in fact no machine on the market of such capacity. Held, that the measure of damages for the breach of warranty is the difference between the purchase price and the actual value of the machine as delivered. Huyett-Smith Mfg. Co. v. Gray, 40 S. E. Rep. 178 (N. C.). Where a purchaser seeks redress for a breach of a contract of warranty, the better rule is that the measure of damages is the difference between the value of the article

as delivered and its value had it been as represented. See 14 HARV. L. REV. 454; Tuttle v. Brown, 4 Gray (Mass.) 457; but cf. Van Winkle v. Wilkins, 81 Ga. 93. Where, however, the ascertainment of damages on this basis would be clearly only matter of conjecture, the rule sometimes breaks down. Ferris v. Comstock, 33 Conn. 513. No such difficulty appears, however, in the principal case. Ordinarily the value of the article as represented is proved by showing the market value of such commodities. See Bach v. Levy, 101 N. Y. 511. Where articles such as were contracted for are not on the market, the mode of proof may be affected, but the measure of damages should not ordinarily be changed. In such cases the contract price, which is always admissible to show the value of the thing contracted for, becomes important evidence as to that value. See Cary v. Gruman, 4 Hill (N. Y.) 625; Tatum v. Mohr, 21 Ark. 349. It is not, however, conclusive. Willis v. Dudley, 10 Ala. 933. In the principal case it would seem a simple matter to prove by expert evidence the value of a machine having the capacity warranted. Cf. Willis v. Dudley, supra.

-

SALES MORTGAGE OF AFTER-ACQUIRED PROPERTY EQUITABLE LIEN.. Held, that a mortgage of securities to be thereafter issued gives a valid equitable lien, which attaches to the securities as soon as they come into the mortgagor's hands. Central Trust Co. of New York v. West India Improvement Co., 169 N. Y. 314.

The New York court has fluctuated between the view that a mortgage of after-acquired property gives a valid equitable lien, and the view that, as against third persons, the mortgagee acquires no rights, unless he takes possession of the property before their rights attach. The decision in the principal case is rested on the authority of the older cases. McCaffrey v. Woodin, 65 N. Y. 459; Kribbs v. Alford, 120 N. Y. 519. It is not noticed that the more recent New York decisions are based upon the other view. Rochester Distilling Co. v. Rasey, 142 N. Y. 570; New York, etc., Co. v. Saratoga, etc., Co., 159 N. Y. 137. The weight of authority, however, both in England and in the United States, supports the principal case. Holroyd v. Marshall, 10 H. L. Cas. 191; Mitchell v. Winslow, 2 Story (U. S. Circ. Ct.) 630; Cumberland Nat. Bank v. Baker, 57 N. J. Eq. 231; but see, contra, Moody v. Wright, 13 Met. (Mass.) 17. On equitable principles the prevailing view would seem to be sound. The question is generally of importance only when the mortgagor becomes insolvent ; and in that case, if the mortgagee is denied a lien, he is deprived of the security by which he was induced to advance his money, while the debtor's estate has the benefit of both the money and the property. Obviously, however, the mortgagee's equitable lien cannot prevail against bona fide purchasers for value.

Sales - STATUTE OF FRAUDS - WRITTEN MEMORANDUM AND SUbsequent ORAL MODIFICATION.— A seller being unable to continue prompt deliveries of flour under a written contract, the parties orally agreed upon a definite postponement of future deliveries. The seller, suing on the original contract, proved the oral transaction to excuse his non-performance of the written terms. Held, that the transaction shows no sufficient excuse. Walter v. Bloede Co., 50 Atl. Rep. 433 (Md.).

Assent to postponement presumably did not bind the defendant as a waiver, for the court does not discuss it as such, and it was probably seasonably retracted. The plaintiff should succeed, then, only if the oral agreement postponing deliveries was enforceable as a contract. According to some American cases the Statute of Frauds does not affect such an agreement, it being styled a contract merely for a substituted performance. Cummings v. Arnold, 3 Met. (Mass.) 486; Clark v. Dales, 20 Barb. (N. Y.) 42. The English courts and some of our states have adopted an extremely opposite doctrine, that any subsequent oral contract is invalid, except one simply rescinding an executory contract to sell. Stead v. Dawber, 10 A. & E. 57; Bailey v. Epperly, 2 Ind. 85. This rule is perhaps too broad, for the question is always whether a given substitutionary contract is for the sale of goods. See Tyers v. Rosedale, etc., Co., L. R. 8 Ex. 305, 318. The English rule is applied in the principal case, where the result reached is correct. The oral contract had two parts, a rescission of the promises of deliveries and payments on the dates first set, and new promises for deliveries and payments on other dates. This latter part was a contract for a sale, and therefore within the statute.

STATUTE OF LIMITATIONS - Amendment of Declaration after StatutORY PERIOD. A statute authorized administrators to sue for the benefit of heirs at law in cases of wrongful death. Within the statutory period an administrator brought an action, failing to name the beneficiaries as required. After the statute had run, he

amended his declaration by inserting the names of the beneficiaries. Held, that the statutory bar cannot be interposed. Love v. Southern Ry. Co., 65 S. W. Rep. 475 (Tenn., Sup. Ct.).

Whether amendments are to be allowed or refused is almost wholly within the discretion of the court. Chirac v. Reinsicker, 11 Wheat. (U. S.) 280. But modern authorities greatly favor allowing them to prevent failure of justice. Stebbins v. Lancashire Ins. Co., 59 N. H. 143. The fact that the statutory period has expired while the suit is pending is regarded as a strong reason for allowing the amendment. Sanger v. Newton, 134 Mass. 308. In such cases the running of the statute is arrested at the date of filling the original pleading, unless the amendment sets up a new cause of action or introduces new parties. Blanchard v. Lake Shore, etc., Ry. Co., 126 Ill. 416; Hills v. Ludwig, 46 Oh. St. 373; Flatley v. Memphis, etc., Ry. Co., 9 Heisk. (Tenn.) 230. The amendment in the principal case does not introduce new parties, as the action is continued in the name of the administrator, the heirs at law being named only as beneficiaries. Nor does it seem that in any real sense a new cause of action is set up. The amendment cures a purely formal defect, and both declarations are obviously based on the same cause of action. The case reaches a very desirable result and is supported by good authority. South Carolina Ry. Co. v. Nix, 68 Ga. 572; Huntingdon, etc., Ry. Co. v. Decker, 84 Pa. St. 419. There is, however, some author. ity the other way. Atlanta, etc., Ry. Co. v. Hooper, 92 Fed. Rep. 820.

STATUTE OF LIMITATIONS APPLICATION TO BILL TO REMOVE CLOUD ON TITLE. Neb. Code, § 16, enacts that "An action for relief not hereinbefore provided for, can only be brought within four years after the cause of action shall have accrued." § 2 abolishes the distinction between actions at law and suits in equity. Held, that the statute constitutes no defence to a suit to remove a cloud on title. Batty v. City of Hastings, 88 N. W. Rep. 139 (Neb.).

Statutes of limitations formerly applied expressly only to actions at law, but the spirit of these statutes is followed in equity, and at the present day they often in terms include equitable suits. WOOD, LIM., § 58. While at law a cause of action must be a breach of legal duty, in equity a suit may be brought to procure a deserved benefit or to relieve from hardship, without any previous wrongful act on the part of the defendant. The question then arises whether the causes of action in suits of the latter class are within the statutes. The authority, though scanty, seems uniformly opposed to such a view. Schoener v. Lissauer, 107 N. Y. 11I. The reasons on which the statutes are based have very little application to cases of this class, and the fact that the outstanding claim is an old one makes its cancellation no less just and desirable. In the principal case therefore the decision, though not founded on a literal construction, seems not to conflict with the intention of the statute. The plaintiff may of course still be barred, if guilty of laches.

BOOKS AND PERIODICALS.

INSANITY IN RELATION TO CONTRACTS. It is the law of England that an insane person is liable upon his contracts as if sane unless, in addition to his own insanity, he proves that the other party knew of his condition. Imperial Loan Co. v. Stone, [1892] I Q. B. 599. This decision, though previously assailed in England, finds support in a recently published article. Lunacy in Relation to Contract, Tort, and Crime, by Rankine Wilson, 18 L. Quart. Rev. 21 (Jan., 1902). In Mr. Wilson's view the case decides merely that insanity shall not be a defence unless the "party alleging it was so insane as not to be capable of understanding what he was about," and then goes on to establish a test of such insanity which shall be "whether the other party can be affected with knowledge. It requires no little ingenuity to find in the language of the decision any indication that such was the meaning of the court. ANSON, Conts., 9th ed., 125. The defendant, by hypothesis, having already proved that he was incapable of understanding what he was about, no test by means of which that

fact might be established could possibly be needed. Admitting, however, that the language is capable of this construction, the change is one of form merely and the practical result remains the same. The sole issue should be whether the person alleging insanity was capable of understanding the contractual act. In determining that question it is by no means apparent how the knowledge of one party affords, as is contended, a test which is both absolute and practically unerring. Applied to the case of contracts made by insane persons who are to all appearances sane, or to agreements entered into by correspondence, this test fails entirely to aid in ascertaining the truth. The incapacity of the defendant to perform a contractual act remains the same, however ignorant of it the plaintiff may be. Nor is an inquiry into the mental condition of one person in the least aided by evidence as to the state of mind of another. When it is considered that the heavy burden of proving knowledge is upon the insane, the doctrine appears to be a return toward the harsh rule of the common law, that no man can "stultify himself " by pleading his own insanity.

Mr. Wilson's position finds little support among modern authorities. Edwards v. Davenport, 20 Fed. Rep. 756; Seaver v. Phelps, 11 Pick. (Mass.) 304. In the cases relied upon by the court in Imperial Loan Co. v. Stone, supra, the insane person had derived some benefit from the contract, and in such cases the law justly implies a contract to pay. Baxter v. Earl of Portsmouth, 5 B. & C. 170; Molton v. Camroux, L. R. 2 Ex. 487. Knowledge of insanity then becomes material as a defence since a remedy in its nature equitable should not be allowed to one open to the suspicion of having imposed upon an insane person. These decisions, however, offer no support for the sweeping rule contended for which makes no distinction between executed and executory contracts. The cases in the United States which seem at first sight to accord with Mr. Wil son's view will, upon examination, generally be found to fall within the class where the relief sought is in essence quasi-contractual. Matthiessen, etc., Co. v. McMahon's Adm'r, 38 N. J. Law 536.

CONDITIONAL PAYMENT BY CHECK. The effect of a creditor's acceptance of a check sent expressly "in full satisfaction" of a larger claim has been the subject of some difference of opinion. The English courts leave it to the jury to decide whether the creditor accepted the check in final settlement or merely as a payment on account. Day v. McLea, 22 Q. B. D. 610. Numerous American decisions, on the contrary, hold as matter of law that acceptance of such a check discharges the entire claim. Logan v. Davidson, 18 N. Ÿ. App. Div. 353. A brief discussion of the question appears in a recent article, in which, however, the author has done little more than to re-state the present English law. Cheques in Settlement, by G. Pitt-Lewis, 112 L. T. (London) 49, Nov. 16, 1901. In jurisdictions where a liquidated claim cannot be discharged by a smaller payment, either in specie or by check, the question obviously is confined to disputed claims. Meyer v. Green, 21 Ind. App. 138. But in all other jurisdictions it concerns both unliquidated and liquidated claims; for these jurisdictions either hold broadly that a smaller payment, whether in specie or by check, may operate in full satisfaction, or else, with the English courts, they concede that payment by check may have such effect, though payment in specie may not. Clayton v. Clark, 74 Miss. 499; Sibree v. Tripp, 15 M. & W. 23.

The English view, that the effect of acceptance is a question of fact for the jury, seems untenable. When a debtor makes a conditional payment by check, the creditor may honorably take one of three courses: he may accept the check in full discharge; he may passively retain it, without cashing or negotiating it; or he may return it. Unless he violate the express condition on which it was sent, he cannot apply it merely on account. He should either refrain from applying the check at all or conform to the terms imposed by the debtor; he cannot rightly substitute terms of his own. “The use of the check is ipso facto an acceptance of the condition." Nassoiy v. Tomlinson, 148 N. Y. 326.

On this view, the creditor's intention in accepting the check would seem immaterial, though the English law would regard it as decisive. For if he intended to accept on the terms offered, his claim is at an end; while if he did not so intend and yet cashed the check, it should not be open to him to qualify or explain an act consistent only with such intention. In particular instances it may well be a troublesome question whether the remittance was in fact conditional. But when once the condition is established, it should follow, not as a possible inference of fact, but as a necessary conclusion of law that acceptance of such remittance is subject to the condition attached.

PROVER AGAINST A PURCHASER FROM A CONVERTER. There has been conspicuous lack of harmony in the decisions as to whether a pledgee or purchaser from a converter is himself guilty of a conversion before demand and refusal. The question assumes practical importance whenever action is brought before demand and also when, though demand has been made, the statutory time has elapsed since the fraudulent sale or pledge. The English law on the subject is briefly summarized in a recent article. A Point in the Law of Conversion, Anon., 46 Sol. J. 24 (Nov. 9, 1901).

As far back as Lord Ellenborough's time, in 1805, it was laid down unquali fiedly, though by way of dictum, that one who takes property "by assignment from another who has no authority to dispose of it" commits a conversion. M'Combie v. Davies, 6 East 538. On this view, which seems correct, there is an immediate conversion by the purchaser or pledgee, before demand and refusal, and it matters not whether his conduct is fraudulent or innocent. A later decision, however, qualifies the broad doctrine of M'Combie v. Davies, supra, holding that an innocent pledgee of title deeds is not guilty of a conversion until detention after demand. Spackman v. Foster, 11 Q. B. D. 99. The author submits, rightly, that the doctrine of Spackman v. Foster, supra, is indefensible on principle and unfortunate in its results. If the essence of conversion is the exercise of a dominion inconsistent with the rights of the owner, it is hard to see how demand and refusal can be necessary; or, if it is unnecessary in the case of a fraudulent pledgee or purchaser, how it can become necessary simply because the infringement on another's rights is unintentional. For whether one's motive be honest or fraudulent, by accepting the converted property in sale or pledge he does an act entirely at variance with the exclusive control of the owner. The view of Spackman v. Foster, supra, is doubtless due in part to a not unnatural desire to shield from immediate liability one whose conduct is morally blameless. But such assumed kindness operates in one respect to the disadvantage of its recipient. It fails to recognize the desirability of quieting possession. For if there is no conversion until demand and refusal, the statute of limitations cannot run in his favor till then; while the stricter and more logical doctrine would allow it to run from the outset.

The sounder view, namely, that demand is not necessary, represents perhaps the weight of American authority. Riley v. Boston, etc., Co., 11 Cush. (Mass.) 11. See also CL. & L., TORTS, 2d ed., 214, and an excellent article, Conversion by Purchase, by Nathan Newmark, 15 Am. L. Rev. 363, 376-378. The opposite view, however, is strongly supported. Rawley v. Brown, 18 Hun (N. Ÿ.) 456 See also 6 So. L. Rev., N. S., 822, 828.