goods does not exist in Illinois; nor is the statute, under which the claim in the principal case is made, a community statute. It makes a charge not on common property but on separate property. Since the husband is by law liable for the debts of the family in any event, this statute, which puts a new burden on the wife in the interest of the husband's creditors, is in the nature of a penalty.

CONSTITUTIONAL LAW-EMINENT DOMAIN - WHAT CONSTITUTES A “TAKING." A dam was erected under the authority of Congress for the improvement of a harbor. Land of the plaintiff, an upper riparian owner, was permanently flooded by the higher level of the river, preventing drainage from the land. The plaintiff sued the United States. Held, that he can recover. United States v. Lynch, 23 Sup. Ct. Rep.

349.

Property cannot be taken without compensation, although the act be done under the power of Congress to regulate commerce. Monongahela Nav. Co. v. U. S., 148 U. S. 312. Cf. Peart v. Meeker, 45 La. Ann. 421. The federal courts under the Fifth Amendment are not bound by state decisions as to what is a "taking" of property. See 14 HARV. L. Rev. 457. But no definite federal rule has been laid down. The Su preme Court seems to recognize that a physical taking of property is not essential. See Pumpelly v. Green Bay Co., 13 Wall. 166. Recovery for certain "incidental" damage, however, as where navigable access to the plaintiff's land was destroyed, has been refused. Scranton v. Wheeler, 179 U. S. 141. The three dissenting judges thought the damage in the principal case incidental. Physical damage to the land, however, did exist. The flooding, moreover, was as proximately caused as if water had been directly flowed upon the land, and under the latter circumstances the court would have allowed recovery. See Pumpelly v. Green Bay Co., supra. The decision accordingly seems

correct.

CONSTITUTIONAL LAW

- INTERSTATE COMMERCE-TERMINI OF ROUTE WITHIN STATE. The plaintiff, a railroad connecting two points in Arkansas, ran for a distance in Indian Territory. The defendants, railroad commissioners of Arkansas, attempted to fix the rates for the haul, and the plaintiff sought to enjoin their action. Held, that the carriage between the two points is interstate commerce and the injunction will be granted. Hanley et al. v. Kansas City Southern Ry. Co., 23 Sup. Ct. Rep. 214.

The point presented in the principal case is here for the first time decided by the Supreme Court. It has, however, arisen several times in state courts, the decisions being about equally divided. Accord, Sternberger v. Cape Fear & Y. V. R. R. Co., 29 S. C. 510; contra, State v. Western Union Tel. Co., 113 N. C. 213. The state decisions opposed to the principal case follow a dictum of the Supreme Court, which considered the commerce domestic in sustaining, under a similar set of facts, a tax upon receipts proportionate to the mileage within the state. Lehigh Valley R. R. v. Penn., 145 U. S. 192. Such a tax, however, has been held constitutional as a franchise tax, even where the commerce was admittedly interstate. Maine v. Grand Trunk Ry., 142 U. S. 217. Moreover, a vessel which on a voyage between two ports of the same state passed more than a marine league from shore was held to be engaged in interstate commerce. Pac. Coast S. S. Co. v. R. R. Commissioners, 18 Fed. Rep. 10. The principal case, then, in making material the route as well as the destination adopts the usual liberal construction of the interstate commerce clause. See The Daniel Ball, 10 Wall. (U. S. Sup. Ct.) 557. Since, if this commerce is not interstate, there would be no power to prevent interference by the neighboring state, the result seems desirable upon practical grounds.

CONSTITUTIONAL LAW-MUNICIPAL HOME RULE - STATE ASSESSMENT OF FRANCHISES. - The Constitution of New York directs that all municipal officers whose selection is not otherwise provided for shall be chosen by the electors of the municipality. N. Y. Const., Art. 10, § 2. A New York statute, Laws of 1899, c. 712, provides that a state board shall assess franchises to operate in streets, highways, and public places, together with the tangible property therein. Held, that the statute is constitutional. People, ex rel. Metropolitan Street Ry. Co. v. Tax Commissioners, 174 N. Y.—, (decided April 28, 1903). See NOTES, p. 592.

CONSTITUTIONAL LAW-MUNICIPAL OWNERSHIP - FUEL PLANTS. — In reply to questions submitted by the legislature, the Supreme Court of Massachusetts delivered an advisory opinion that proposed legislation authorizing cities and towns to establish and operate fuel yards would be constitutional only when limited to meeting an emergency in which government agencies alone could procure fuel. In re Municipal Fuel Plants, 66 N. E. Rep. 25 (Mass.). See Notes, p. 584.

CONTRACTS ACCORD AND SATISFACTION - PAYMENT OF LIQUIDATED Debt BY NOTE FOR SMALLER AMOUNT. A recovered judgment against B for two hundred and twenty-six dollars. Nothing was obtained on the execution issued. A thereupon accepted fifty dollars in cash and B's unsecured note for fifty dollars, agreeing that the debt should be fully discharged if the note were paid at maturity. B paid the note at maturity and A gave a receipt in full. Held, that the judgment debt has not been discharged. Shanley v. Koehler, 80 App. Div. 566.

Apart from statute a smaller sum accepted in full payment of a liquidated debt does not discharge the debt, since there is no consideration for the surrender of the balance. Foakes v. Beer, L. R. 9 App. Cas. 605; Weber v. Couch, 134 Mass. 26. Contra, Clayton v. Clark, 74 Miss. 499. The decision in the principal case is based on this rule, for it is difficult to consider the payment of the note at maturity more valuable than the immediate payment of the same amount. But it has been generally recognized that a present payment may in fact be of more value than a mere claim for a larger sum. See Foakes v. Beer, L. R. 9 App. Cas. 605, 617, 622; 12 HARV. L. REV. 525, n. I. The general rule has consequently been greatly limited by technical distinctions. Thus the debtor's payment of a part of the debt and of the costs of a prior action for its enforcement has been held sufficient, although the total sum paid was less than the debt. Mitchell v. Wheaton, 46 Conn. 315. Similarly many courts hold that the debtor's unsecured paper for a smaller amount may constitute a discharge if honored at maturity. Sibree v. Tripp, 15 M & W. 23; Wells v. Morrison, 91 Ind. 51. Contra, Siddall v. Clark, 89 Cal. 321. In the principal case, therefore, it would seem that the court might have reached an opposite and more desirable conclusion.

CONTRACTS-ANTICIPATORY BREACH-INSURANCE CONTRACT. - The plaintiff was insured for $5000 by the defendant corporation. The defendant decided to limit the amount payable upon existing certificates to $2000. Accordingly, it refused to recognize the plaintiff's original contract or to accept premiums under it. The plaintiff sued the defendant for breach of contract. Held, that, since the defendant was by the terms of its contract called upon to pay only on the death of the plaintiff, there was no breach. Langan v. Supreme Council, Am. Legion of Honor, 174 N. Y. 266.

It has been thought that New York had virtually adopted the anticipatory breach doctrine. See 14 HARV. L. REV. 433, n. 4. The doctrine, however, has never been necessarily recognized, though there are numerous dicta to that effect. The one case of a marriage contract is to be distinguished on the ground that there was a breach of an actual implied promise to act consistently with the marriage contract. Burtis v. Thompson, 42 N. Y. 246. On the other hand, it has been said that an action will not lie at once when the maker of a promissory note declares before its maturity that he will not honor it. See Benecke v. Haebler, 38 N. Y. App. Div. 344. On principle this would seem to be an anticipatory breach, though the doctrine would probably nowhere be applied to such a case. The contract of insurance, being merely to pay money in the future, might be thought analogous to the case of a promissory note. But if not within that exception, the principal case clearly presents an anticipatory breach, and is therefore inconsistent with the existence of that doctrine in New York.

CONTRACTS CONSTRUCTION - PRESUMPTION AS TO PLACE OF PERFORMANCE. The defendant contracted in Kentucky to employ the plaintiff for two years as superintendent of his factory, the written agreement not stating the place of performance. Before the expiration of two years, the factory was moved from Kentucky to Indiana. The plaintiff refused to superintend the business there, and, upon the defendant's refusal to pay his salary, brought an action for breach of contract. Held, that there is a prima facie presumption that the contract is to be performed in the state in which it is made. Cook v. Todd, 72 S. W. Rep. 779 (Ky.).

The doctrine that such a presumption exists seems to have originated with those courts which hold that a contract must be construed according to the law of the jurisdiction in which it is to be performed. De Sobry v. De Laistre, 2 H. & J. (Md.) 191. To determine the place of performance when the contract itself contains no expression of intention, this presumption was introduced. Since the presumption is not calculated to give effect to the intention of the parties, the difficulty might have been met more satisfactorily by holding directly that a contract silent as to the place of its performance will be construed according to the law of the jurisdiction in which it was made. See Mittenthal v. Mascagni, 66 N. E. Rep. 425 (Mass.). The use of this presumption, as in the principal case, not to decide a question of jurisdiction, but to determine the substantive rights of the parties, seems peculiarly unfortunate. If the terms of a written contract when interpreted by the aid of such evidence as is properly admissible do not indicate the intention of the parties as to the place of performance, there seems to be no reason for narrowing the scope of those terms by an arbitrary presumption.

CONTRACTS-ILLEGAL CONTRACTS — OUSTING COURT OF JURISDICTION. — A contract was made in Italy by the defendant, who was an Italian citizen, and the plaintiff, an American who elected in the contract to have an Italian domicile. To an action on the contract brought in Massachusetts the defendant pleaded in abatement an express stipulation that the contract was to be sued on only in Florence, Italy. Held, that since this stipulation is neither unreasonable nor against public policy it is a good plea. Mittenthal v. Mascagm, 66 N. E. Rep. 425 (Mass.).

The decision is in accord with the only authorities which have been found. Gienar v. Meyer, 2 H. Bl. 603; Johnson v. Machielsne, 3 Camp. 44. These cases go on the ground that parties may contract to waive the right to appeal to the courts in one jurisdiction if they retain the right to sue in another, provided the contract is reasonable. The same principle appears in those cases which allow an insurance company to limit suit on a policy to one state or county. Daley v. People's Building Association, 178 Mass. 13; Greve v. Aetna Live Stock Ins. Co., 81 Hun (N. Y.) 28. Similarly parties may by express agreement bar an action within a period shorter than the statute of limitations. Amesbury v. Bowditch Mut. Fire Ins. Co., 6 Gray (Mass.) 596; Matter of Petition of N. Y., etc., R. R. Co., 98 N. Y. 447. The doctrine of the principal case seems, however, somewhat opposed to the underlying principle of the well established rule that an agreement to arbitrate can be enforced only when in the form of a condition precedent to liability on the contract. Scott v. Avery, 5 H. L. Cas. 811. Since it carries out the intention of the parties and encourages freedom of contract, the doctrine of the principal case seems to be the desirable one.

CONTRACTS INTERPRETATION CHANGE OF RULES OF SOCIAL CLUB. - The constitution of a social club contained no provision for its amendment, but had been frequently amended by majority vote before the plaintiff joined the club. An amendment raising the annual dues having been adopted without the plaintiff's consent, he refused to pay the additional amount, and sought an injunction against interference with his enjoyment of the club's privileges. Held, that the injunction will be granted. Harington v. Sendall, 19 T. L. R. 302 (Eng., Ch. D.).

A club is analogous to a partnership in that both the constitution of the one and the articles of agreement of the other are obligatory only as contracts. See Austin v. Searing, 16 N. Ÿ. 112, 121. In partnership cases it is held within the implied terms of the contract that with regard to acts within the ordinary scope of the business the majority shall prevail. Peacocks v. Chambers, 46 Pa. St. 434. But unanimity is essential to the validity of acts repugnant to, or in alteration of, the contract of partnership. Appeal of Jennings, 16 Atl. Rep. 19 (Pa.). Apart from special circumstances, the same principles would seem to be decisive of the principal case. If, however, the plaintiff had known of the usage of the club to abide by the will of the majority in all cases, that usage would impliedly have been part of the contract of membership. See Loring v. Gurney, 5 Pick. (Mass.) 15; 2 GREENL. Ev. 16th ed. § 251. But it is well settled that a party to a contract is not bound by a particular usage of which he had no knowledge at the time of contracting. Gabay v. Lloyd, 3 B. & C. 793. Accordingly, the decision in the principal case appears sound.

CORPORATIONS-STOCKHOLDER'S RIGHT TO VOTE-INTEREST OF DIRECTOR. - Directors were privately interested in a loan to the corporation. The required vote of two-thirds of the stockholders in accepting the loan could not have been attained without the votes cast by the interested directors. Held, that the transaction will not be set aside at the suit of a minority shareholder. Hodge v. U. S. Steel Corp., 54 Atl. Rep. 1 (N. J., C. A.). See NOTES, p. 585.

DAMAGES PROVOCATION IN MITIGATION OF COMPENSATORY DAMAGES. The defendant assaulted the plaintiff because of the publication by the latter of an article concerning the defendant. Held, that evidence of the provocation may be considered in mitigation of the damages actually suffered by the plaintiff. Genung v. Baldwin, 77 N. Y. App. Div. 584. See NOTES, p. 591.

DAMAGES-TROVERSEVERANCE OF COAL FROM THE REALTY. - The defendant by a non-negligent mistake mined coal in the plaintiff's land. The plaintiff brought trover. Held, that the measure of damages is the value of the coal immediately after severance. Ivy Coal & Coke Co. v. Alabama Coal & Coke Co., 33 So. Rep. 547 (Ala.). See NOTES, p. 589.

EQUITY INJUNCTION

PATENT PUT TO ILLEGAL USE.-The plaintiff sought to enjoin the defendant from infringement of his patent on detectors of bogus coins. The defendants established that the plaintiff used these detectors exclusively to guard

gambling-machines. Held, that plaintiff is entitled to an injunction. Fuller v. Berger, 120 Fed. Rep. 274 (C. C. A., Seventh Circ.).

This case was discussed before its appearance in the regular reports at p. 444

ante.

EQUITY-PROTECTION OF CONTRACT RIGHTS-INJUNCTION AGAINST STRIKERS. -A coal agency, having large contracts both for the purchase of coal from mine owners and for its delivery to customers, filed a bill to restrain the continuance of a strike in the mines, in which the strikers, by intimidation, were unlawfully preventing others from working. The defendants demurred. Held, that the injunction will be granted. Chesapeake, etc., Co. v. Fire Creek, etc., Co., 119 Fed. Rep. 942 (Circ. Ct., W. Va.).

If the interference with the plaintiff's contract, or, in the United States, with his "business expectancies " had been malicious, though otherwise lawful, it would have given rise to an action at law or an injunction in equity. Lumley v. Gye, 2 E. & B. 216; Plant v. Woods, 176 Mass. 492. Where the act which is the legal cause of the plaintiff's injury is tortious per se- as here- the necessity of malice to connect the defendant's act with the injury is done away with. Thus, had this action been at law the plaintiff would undoubtedly have recovered. Bowen v. Hall, L. R. 6 Q. B. D. 333. Logically, therefore, as irreparable injury was alleged, an injunction should lie. The case, which is one of first impression on this exact point, is undoubtedly sound, not as an extension, but as a novel application, of recognized legal and equitable principles.

INSURANCE-ACCIDENT INSURANCE- RIGHT OF INSURER TO SUBROGATION.— In an action against an accident insurance company to recover agreed compensation for time lost by the insured because of an injury sustained through the negligence of a railroad, the defendant sets up that the plaintiff had released the railroad from liability. Held, that the defendant had no right of subrogation and so was not prejudiced by the release. Aetna Life Ins. Co. v. Parker & Co., 72 S. W. Rep. 168 (Tex., Sup. Ct.).

In fire insurance, the insurer is subrogated, on payment of a loss, to the insured's right of action against a tort feasor who may have caused the fire. Mason v. Sainsbury, 3 Doug. 61. In life and accident insurance, however, there can be no subrogation if, as is commonly said, the contract is not for indemnity as in fire insurance, but simply to pay a fixed sum on the happening of a certain event. See Phanix Mut. Life Ins. Co. v. Bailey, 13 Wall. (U. S. Sup. Ct.) 616. But in fact life and accident policies appear to be valued indemnity policies. MAY, INS. 4th ed. § 7. This conception, however, does not necessarily involve the introduction of subrogation, in life insurance at least. For death is the subject of such conjectural pecuniary compensation that in no case can it be said that the insured is more than fully indemnified; consequently subrogation has no place. See Burnand v. Rodocanachi, L. R. 7 App. Cas. 333; contra, The St. Johns, 101 Fed. Rep. 469. Accident insurance would be a more likely field for the application of subrogation, particularly in cases like the one under consideration, where the injury can be measured with comparative ease. But the socalled wager view of life and accident insurance is so firmly fixed that subrogation will probably be denied here too. There is no precise authority on the point. But two cases have been found holding that in an action by the insured for his own benefit the tort feasor cannot plead the payment of the insurance in mitigation of damages. Bradburn v. Great Western R. R. Co., L. R. 10 Ex. 1 ; Harding v. Town of Townshend, 43 Vt. 536.

INSURANCE - RESCISSION OF CONTRACT PLACING INSURER IN STATU QUO. The plaintiff took out a life insurance policy in a mutual benefit association for five thousand dollars. Some years later the association repudiated the contract in part by passing a by-law making two thousand dollars the maximum amount payable on any policy. Held, that the plaintiff may rescind the contract and recover in full the amount of the assessments paid. Black v. Sup. Council, Am. Legion of Honor, 120 Fed. Rep. 580 (Circ. Ct., E. D. Pa.).

As conceded in the principal case, the right of rescission depends upon the ability to place the defendant in statu quo. Gassett v. Glazier, 165 Mass. 473. The court held this requirement satisfied on the ground that the insurer had suffered no material detriment, the insured being still alive. This view is supported by the weight of authority. Van Werden v. Equitable Life Assur. Co., 99 Ia. 621; Am. Life Ins. Co. v. Mc Aden, 109 Pa. St. 399. According to the better view, however, rescission is not allowed, since the consideration for the assessments is the risk assumed by the insurer. Cont. Life Ins. Co. v. Houser, III Ind. 266; Phanix Mut. Life Ins. Co. v. Baker, 85 Ill. 410. In the case of fire insurance it is universally recognized that the consideration is the risk.

Am. Ins. Co. v. Garrett, 71 Ia. 243. It is submitted that the certainty of a future loss, which is the only distinguishing characteristic of life insurance, does not destroy the value of the past assumption of risk. It would seem, therefore, that, if the defendant is deprived of remuneration for such risk, he is not left in statu quo. Furthermore rescission is not necessary to protect the plaintiff. The federal courts accept the doctrine of anticipatory breach. Roehm v. Horst, 178 U. S. 1. Hence the plaintiff could maintain an action for his actual damage. Union Cent. Life Ins. Co. v. Poettker, 5 Big. Ins. Rep. (Oh.) 449. See Phanix Mut. Life Ins. Co. v. Baker, supra; cf. Langan v. Supreme Council, etc., supra, p. 598.

INTERNATIONAL LAW STATUS OF CUBA DURING UNITED STATES MILITARY OCCUPATION. - A murder was committed on a vessel sailing under a registry issued at Havana by the American military government. Held, that the United States courts have no jurisdiction over the offense, since the vessel was an extension of a "foreign country." United States v. Assia, 118 Fed. Rep. 915 (Circ. Ct., E. D. N. Y.). See NOTES, p. 213.

This case was discussed before it appeared in the regular reports at p. 213 ante.

PRACTICE APPOINTMENT OF AUDITOR IN JURY TRIAL COSTS. — Because of complexity in the defendant's case the court of its own motion, but with the consent of the parties, appointed an auditor to make a tentative investigation in preparation for trial by the jury. The defendant paid half of the expense. Upon the plaintiff's submitting to a nonsuit, the court refused to allow the defendant to include this amount in his costs. Held, that, when the court, in the exercise of its inherent power to secure the attainment of justice in a jury trial, appoints an auditor it may distribute the costs in the most equitable manner. Fenno v. Primrose, 119 Fed. Rep. 801 (C. C. A., First Circ.).

It is generally held that a court cannot appoint an auditor without the consent of the parties, if he is to decide finally issues of fact. See Note, 79 Am. Dec. 207. Contra, Davis v. St. Louis, etc., Ry. Co., 25 Fed. Rep. 786. But when he is merely to hold a tentative examination his appointment would seem to be within the power of the court. Certainly the right of trial by jury is not infringed, the reaching of a just verdict merely being rendered more easy. No case has been found which considers the precise point, but the reasoning of one decision is in support of the principal case. See Lawrence's Cases, 6 Ct. of Cl. 79. In exercising its discretion as to the costs, the court would seem to be following established precedents. Nashua & Lowell R. R. Corp. v. Boston & Lowell R. R. Corp., 61 Fed. Rep. 237; see Spalding v. Mason, 161 U. S. 375, 397. Since in the principal case the reference was with the consent of the parties, the court might well have rested the decision on the established ground that, in the absence of statute, the court may let the expense lie where it falls. New Hampshire Land Co. v. Tilton, 29 Fed. Rep. 764.

PROPERTY - FIXTURES

- MORTGAGE OF LAND.-The plaintiff rented a number of theatre seats to the owner of a hippodrome for a specified period, the agreement containing a provision for purchase. The seats, as required by local regulations, were firmly fastened to the floor. Later the hippodrome and fixtures were mortgaged to the defendant, who sold the seats. The plaintiff, thereupon, brought an action of trover. Held, that the plaintiff may recover, since he was never divested of his title to the chairs. Lyon & Co. v. London, etc., Bank, 114 L. T. 477 (Eng., K. B.).

This decision seems opposed to the previous English cases. Hobson v. Gorringe, [1897] Ch. 182. For a discussion of the principles involved, see 10 HARV. L. REV. 190; 16 ibid. 531.

-

PROPERTY-PERPETUITIES INFANT EN VENTRE SA MÈRE. The testatrix devised real property to trustees on trust to pay the income to her daughter Y for life, and after her death on trust for the third and every younger son of Y for his life, with remainder upon trust for his first and other sons successively in tail male. Y's third son, the present plaintiff, was born four months after the death of the testatrix. The plaintiff on reaching his majority took out a summons for a declaration that the estates after his life estate were invalid. Held, that the subsequent estates to the plaintiff's sons are well devised. Re Wilmer, 47 Sol. Jour. 336 (Eng., Ch. D.).

It is a general rule that an infant en ventre sa mère will be regarded as born if it is for his benefit. Doe d. Clarke v. Clarke, 2 H. Bl. 399. More recently the rule has been extended to cover a case in which considering the infant born would benefit another, and not be detrimental to the infant himself. In re Burrows, [1895] 2 Ch. 497. But where the child's interest would be unfavorably affected, the courts have refused to