RECENT DECISIONS.

BILLS AND NOTES-FAILURE OF CONSIDERATION-GENERAL ISSUE-EVIDENCE. Plaintiff sold defendant a machine, warranting it. In payment defendant gave his promissory note. Held, in an action on the note that evidence of total failure of consideration due to a breach of the warranty was admissible under the general issue. Keystone Mfg Co. v. Forsythe, 85 N. W. 262 (Mich., Feb. 1901).

The court treats the breach of warranty as a breach of condition causing total want of consideration. Evidence of want of consideration was, before the Hilary rules, admissible at common law under the general issue. Chitty on Bills of Exchange, 8th Am. Ed., page 604; McCreary . Jaggers, 3 McCord, 473 (S. C. 1826). In Michigan the general issue is as broad as at common law. Taff v. Hosmer, 14 Mich. 309 (1866).

V.

But where there is only a partial failure of consideration, unliquidated in amount, as in the case of goods sold on a warranty subsequently broken, evidence thereof would be no defence to an action on the note. Fickey v. Larme, 6 M. & W. 278 (Ex. 1840). The principal case seems to be within this rule. To-day, in this country, such evidence would be a pro tanto mitigation of the damages. McKnight v. Devlin, 52 N. Y. 402 (1873); Stacy v. Kemp, 97 Mass. 166 (1867).

CARRIERS-LOSS OF BAGGAGE-LIABILITY OF COMPANY. Without intending to become, and without becoming, a passenger, defendant bought a ticket and checked his trunk over defendant road. The night after its arrival the trunk was stolen from defendant's baggage-room. Held, defendant was a gratuitous bailee, liable only for gross negligence. Marshall v. P. O. & N. Ry., 85 N. W. 242 (Mich. Feb., 1901).

To fix upon defendant liability as a carrier of baggage the owner must stand in the relation of a passenger to him. Smith v. Ry., 44 N. H. 330 (1862); Ry. v. Wimberley, 75 Ga. 316 (1885); State v. Knight, 3 Am. & Eng. R. Cas. 374 (N. Y., 1895).

If the carrier accept by accident or mistake that which would be baggage were it accompanied by the owner as passenger, without its being so accompanied, the carrier will not be responsible for it as baggage, The Elvira Harbeck, 2 Blatch. 336 (U. S. Ĉ. C., 1851); Griffan v. Ry. Co., 67 Me. 231 (1877).

Nor shall a carrier be held liable as a carrier of freight for that which he has accepted for carriage as baggage. Collins v. Ry Co., 10 Cush. 506 (Mass., 1852); Beers v. Ry. Co., 34 At., 541 (Conn., 1896).

Fairfax v. Ry. Co., 73 N. Y. 167 (1878), presents a different question. There the carrier accepted trunks, knowing that the owner was not a passenger. He was held liable as a warehouseman.

CONSTITUTIONAL LAW-TAXATION OF NON-RESIDENT MORTGAGEES. Held, a statute of Maryland fixing the situs of mortgages at the point where the land is located and imposing a tax on them, including those held by nonresidents, does not contravene the Fourteenth Amendment. Allen v. Bank of Camden, 48 Atlantic 78 (Md., 1901).

The decision is perfectly sound. The U. S. Supreme Court has decided that where the tax is not levied upon the debt secured by the mortgage but upon the mortgage interest in the land, whether that interest be regarded as real estate or personal property, the tax is valid against non-residents. Savings Society v. Multnomah County, 169 U. S., 421 (1897); Bristol v. Washington County, 177 U. S., 139 (1899). The case is interesting as showing again that great injustice may result from double taxation by competing jurisdictions.

CONTRACTS-RESTRAINT OF TRADE. Held, a covenant not to engage in a certain business, void as in restraint of trade, will not invalidate the contract of which it is a part, if such contract has other good consideration. Rosenbaum v. U. S. Credit System Co., 48 Atl. 237 (Ct. of Errors, N. J. ; Jan. 1901).

With the single exception of Fishell v. Gray, 60 N. J. L. 5 (1897), no case seems to approach the subject from exactly this point of view. In modern times the law as to restraints on trade has grown much more lenient, and it is usual to treat such contracts as divisible wherever possible, and enforce the reasonable part of the restraint. But in the principal case there is nothing said as to divisibility, and the plaintiff's covenant is regarded as merely insufficient, i. e., no consideration, as distinguished from such illegal consideration as would taint the whole transaction. This seems sensible and in accordance with the better modern opinion that, in the absence of statutes, such contracts are only unenforceable, not criminal or actionable. Mogul S. S. Co. v. MacGregor, 1892 App. Cases 25 (H. of L.); but cf. Jackson v. Stanfield, 36 N. E. 345 (Ind., 1894). On the facts the following cases appear to accord with the principal case: Green v. Price, 13 M. & W. 695 (1845); Dean v. Emerson, 102 Mass 480 (1869); Oregon Nav. Co. v. Winsor, 20 Wall 64 (1873): West. Union Tel. Co. v. R. R. Co., 11 Fed. 1 (1882). Contra: Bank v. King, 44 N. Y. 87 (1870); Arnot v. Coal Co., 68 N. Y. 558 (1877); Oil Co. v. Nunnemaker, 142 Ind. 560 (1895). See also Eddy on Combinations (1901), § 603n, 712, 713, 745.

CONTRACTS-RESTRAINT OF TRADE. Held, a contract not to engage in a particular business, though unaccompanied by the sale of any business, stock or plant, is not void as in restraint of trade. Wood v. Whitehead Bros., 59 N. E. 357 (N. Y., Feb. 5, 1901).

In effect the plaintiff's agreement to discontinue his business was a sale of the good-will to the defendant. Such a contract was held good in Brett v. Ebel, 29 App. Div. 256 (1898), cited with approval in the case at bar. Apparently there is no other case in point. See Eddy on Combinations (1901), § 771. On principle it would appear unexceptionable.

DOMESTIC RELATIONS-WIFE'S SERVICES AND EARNINGS-EFFECT OF MODERN STATUTES. Under an agreement between plaintiff and defendant's testator, plaintiff's wife, while continuing to live with her husband, rendered services to the testator for the value of which this suit is brought. Laws of 1884, Chap. 381, provide that married women may contract as if unmarried. Held, the action was properly brought in the husband's name. Holcomb v. Harris, 166 N. Y. 257 (Mar., 1901).

In Birkbeck v. Ackroyd, 74 N. Y. 356 (1878), the statute of 1860, conferring upon married women the right to create a separate estate, was held not to interfere with the right of the husband to his wife's earnings in the absence of an election on the woman's part to labor for her own estate. And in Porter v. Dunn, 131 N. Y. 314 (1892), notwithstanding the liberal provisions of the Married Women's Act of 1884, a husband recovered money earned by his wife under a contract made by her with the defendant. The Court held that the statute had no effect on the common law right of a husband to the services and earnings of his wife where they are not rendered or received expressly upon her separate account. These decisions are the result of a strict construction of statutes modifying the common law.

EQUITY-CONCURRENT JURISDICTION-COMPLICATED ACCOUNTS. After an account, involving over eighty-eight disputed items and much technical evidence had, in an action at law, been sent to a referee, plaintiff filed a bill to take his complaint into equity and enjoin the suit at law. Held, equity has concurrent jurisdiction and may enjoin an action at law where the mutual accounts are complicated and the evidence is so technical that it is practically impossible for a jury to reach any just conclusion. Inhabitants of Cranford Tp. v. Watters, 48 Atl. 316 (N. J., Feb., 1901).

Action by courts of equity in this class of cases is discretionary, and

no relief will be given unless a state of facts warranting interference with the trial at law is confessed in the answer or apparent on the state of the record. Railway Co. v. Nixon, 1 H. L. C. 111 (Eng., 1847); Railway Co. v. Brogden, 3 Macn. & G. 8 (Eng., 1850); Crane v. Ely, 37 N. J. Eq. 564 (1883). As the jurisdiction does not depend on the absence of a legal remedy, but chiefly on the fact that a jury has no means of reaching a just conclusion, Crown Coal Co. v. Thomas, 177 Ill. 534 (1899), in those States where, by statute, an account may be taken from the jury and sent to a referee, who may order a production of the books, equity will not interfere if the case does not involve a fiduciary relation. Badger v. MacNamara, 123 Mass. 117 (1877); Marvin v, Brooks, 94 N. Y. 71 (1883); Ullman v. N. Y. Life Insurance Co., 109 N. Y. 421 (1888); Wisner v. Fruit Jar Co., 25 App. Div. 362 (N-Y., 1898). The case is of interest in showing the difference of procedure in "code" States and those retaining the old equity rules.

EVIDENCE-EXPERT TESTIMONY. Action for injury to a workman by falling dirt. Held, an experienced civil engineer may answer a question as to a safe and proper method of shoring up an excavation made at the side of a high chimney. Finn v. Cassidy, 59 N. E. 311 (N. Y. 1901).

This ruling follows the trend of decisions on the admissibility of expert evidence and represents the correct principle. 1. Greenleaf Evidence (16th ed.), p. 441. This would follow from the admission of expert evidence in the following cases: that a house was built in a workmanlike manner, Pullman v. Corning, 9 N. Y. 93 (1853); proper speed for a tugboat, Baird v. Daly, 68 N. Y. 547 (1877); by a cabinet maker that work was a good job and well done, Ward v. Kilpatrick,85 N.Y. 414 (1881); that the use of machinery weakened the walls, Turner v. Hoar, 21 S. W. 737 (Mo., 1893); that a staging erected for the purpose of piling wood was safely constructed, Prendible v. Connecticut Mfg. Co., 35 N. E. 675 (Mass., 1893). This question has been discussed by O'BRIEN, J., in 1. CoLUMBIA LAW REVIEW 180. GRAY, J., who dissents in the principal case, does not dispute the truth of the principle laid down in the prevailing opinion; he believes the danger of the place was not connected with the underpinning of the chimney and therefore its construction had nothing to do with the issue.

EVIDENCE-LARCENY-RES GESTE. Suspicion of larceny fell on the accused, and his house was searched by a constable soon after the commission of the crime; upon discovery of goods the accused stated that they had been brought and left with him by a third party. Held, such statements were admissible as part of the res gesta. State v. Gillespie, 63 Pac. 742 (Kas., 1901).

Such evidence is almost universally conceded to be admissible. In general the possession of stolen goods is evidence of guilt upon which a jury might find a verdict. Commonwealth v. Randall, 119 Mass. 107 (1875); People v. Stover, 56 N.Y. 315 (1874); 1. Greenleaf Evidence, § 42. As it is competent for the defendant to prove acts by which the goods came into his possession, it should be competent for him to prove all pertinent statements made at the time of the discovery, spontaneously and before he had time to concoct a story. Many courts have held this evidence admissible within the res gesta rule either for or against the accused. 2. Bishop Criminal Procedure (3d ed.) §§ 743, 745, 746, and cases there cited; People v. Dowling, 84 N. Y. 478 (1881); Henderson v. The State, 70 Ala. 23 (1881); Territory v. Mitchell, 54 Pac. 782 (Okl., 1898).

INSOLVENCY-PREFERENCES-ESTATE BY ENTIRETIES. A, knowing he was insolvent, and in order to put his property out of the reach of his creditors, conveyed it to X, without consideration, who reconveyed to A and his wife, "husband and wife, as joint tenants." A's wife had no knowledge of his insolvency, and believed that the object of the transfer was to secure a loan she had made A from her own antenuptial earnings. Held, this was not fraudulent against creditors, and the estate by

entireties must be protected. 245 (Mich., Feb. 1901).

Ullmann et al. v. Thomas et al., 85 N. W.

Since the deed expressly created a joint tenancy, it may well be doubted whether this was properly treated as an estate by entireties, incapable of partition. Joos v. Fey, 129 N. Y. 17 (1891); Miner v. Brown, 133 N. Y. 308 (1892); 4 Kent Com. 362, 364; N. Y. Real Prop. Law, § 56; Howell's Mich Gen. St., 559. But a transfer, made by an insolvent as security for a subsisting debt, to one who has no knowledge of a contemplated general assignment, is valid against creditors. Manning v. Beck 129 N. Y. 1, 10 (1891). And, unless a general assignment has been made or is contemplated, there is no limitation upon the right to prefer one creditor over the others. Bishop, Insolvency, SS 172-4, 177 (1895); Adopting, then, this view of the case, the present is but an aggravated instance of the injustice which the well-settled rule permits.

INSURANCE-BENEFIT ASSESSMENT CORPORATION-CHANGE OF BENEFICIARY. A member of a society, whose certificate was made payable to his wife, wrote the collector to have a new one issued to his mother instead, but died before the request was communicated to the society. No peculiar form having been prescribed by the society's by-laws to govern the change of beneficiary, it was held that effect must be given to the member's intention, though the wife's certificate was outstanding, and the Insurance Law only provided that such change might be made upon the consent of the society. Fink v. D., L. & W. Mutual Aid Society, 57 App. Div. 507 (N. Y., Jan. 1901).

While the question here raised was not concluded by the case of Luhrs v. Luhrs, 123 N. Y. 367 (1890), the present holding is certainly in line with the reasoning in that decision; and the Insurance Law on the point is a re-enactment merely of the Laws of 1883, Ch. 175, § 18. The numerous decisions cited are unsatisfactory, because the by-laws of each society have respectively furnished the test, but they serve to make clear at least the desire of the courts to effectuate the member's intention. Richards, Insurance, 198. Yet the present court has gone very far, in holding the change properly made, when, as LAUGHLIN, J., says (dissenting), at the time of the member's death the old certificate had not been revoked, nor superseded by a new one, and the society had not consented to the change.

INSURANCE-INTERPRETATION OF STATUTE EXEMPTING FROM EXECUTION. Defendant had received money as the beneficiary of a fraternal society, and had loaned it to his son, taking a bond and mortgage therefor. Upon these the plaintiff levied under an attachment. The defendant claimed exemption under p. 228 of the Insurance Law (Chap. 690, Laws of 1892). Held, the statute exempting from execution "all money or other benefit * * * to be paid" did not cover an amount already paid to the defendant. Bull v. Case, 59 N. E. 301 (N. Y., Feb., 1901). This interpretation of the statute is in line with what seems to have been the legislative intent. Chapter 175 of the Laws of 1883 provided that "money to be paid" should be exempt. Bolt v. Kehoe, 30 Hun, 619 (1883) held that money actually received by a widow was not exempt from creditors' claims. Then Chap. 116, Laws of 1884, was passed, and Sec. 116 extended the exemption to cover such a case by providing that such beneficiary fund " 'paid to the widow" should be exempt. The sections in point of the laws of 1889 and 1892 reaffirmed the corresponding section of the law of 1883 with certain additions, again using the words "to be paid," under which Bolt v. Kehoe, supra, was decided. When, therefore the Legislature wished to extend the rule of that case, it did so explicitly, by using the form "paid." Clark v. Lynch, 31 N. Y. Supp. 1038 (1894) was decided on the authority of the statute of 1884, a widow being the party, and is not necessarily in conflict with the principal case. INSURANCE VENDOR A TRUSTEE OF INSURANCE MONEY FOR VENDEECHANGE OF INTEREST UNDER ALIENATION CLAUSE OF STANDARD POLICY. Owner of insured real estate contracted to sell, but premises were

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destroyed by fire before the time fixed for completion. Full purchase price was subsequently paid, without prejudice to the rights of vendor or vendee to insurance, the vendor remaining in possession throughout. Certain insurance companies were about to pay vendor; others raised the point that under the clause, if any change take place in the interest, title or possession of the insured," etc., the policy was forfeited. Bill in Equity filed by vendee. Held, first, there had been a forfeiture; secondly, as to companies waiving forfeiture, that vendor was a trustee of insurance money for vendee. Skinner v. Houghton, 48 Atl. 85 (Maryland, Dec. 1900). SEE NOTES.

JUDGMENTS-Mortgages—PrIORITIES. Held, a judgment creditor, A, who, upon issuing execution against the lands of his debtor, directed the sheriff to return it without levying, and upon it instituted supplemental proceedings to reach assets not leviable, was postponed, not only to a subsequent judgment creditor, C, who did levy, but also to an intervening mortgagee, B. who, if C had not levied, could not have taken advantage of A's laches, but who, notwithstanding C's action, still remained prior to C. Andrus v. Burke, 48 Atl. 228 (N. J. Eq., Feb. 1901).

The court based its decision on Clement v. Kaighn, 15 N. J. Eq. (1862) and Hoag v. Sayre, 33 N. J. Eq. 552 (1881), which it considered binding, but frankly admitted that it knew of no principle to support it. The court assumed that if C had not issued execution and levied, B should still remain subsequent to A. Upon this assumption the conclusion arrived at does indeed present a "legal puzzle * * * insoluble on any known principles.' But it is submitted that this assumption is wrong, and that the conclusion is right on principle. For, as a matterof law and of justice, A's laches should inure to the benefit of B as well asof C. That the Legislature failed to provide for this is not a valid reason why the court should refuse to bring about the desired result in a case like the present, where otherwise B might suffer from the priority which, apparently, through legislative inadvertence, was given to C alone. Where this position is not adopted, the courts are driven to other expedients to support the rights of the mortgagee. Hunt v. Bowman, 63 Pac. 747 (Kan., 1901).

LICENSE FEES-WHAT CONSTITUTES A PUBLIC HACKMAN. Held, a nonresident liveryman who furnished cab service to the patrons of a steamship company, under contract with the company, was not a public hackman within the meaning of a municipal ordinance and not required to secure a license. City of New York v. Hexamer, N. Y. Law Jour., Mch. 25, 1901.

It is well settled that when a charge exceeds the cost of issuing the license and of regulating the business, it is a tax and not a fee. In this case regulation was unnecessary, because defendant kept no stands and his services were offered to a límited class under contract. With regard to defendant, the charge was therefore a tax, and as there was no intention that this municipal power should be used to raise revenue, the defendant was clearly not liable. People v. Jarvis, 19 App. Div. 466 (1897).

QUASI-CONTRACT-PLAINTIFF IN DEFAULT UNDER CONTRACT. Held, a plaintiff in default under a building contract could recover the actual value to the defendant of what has been done, and plaintiff must prove the amount of defendant's enrichment. Gillis v. Cobe, 59 N. E. 455 (Mass., 1901), 3 dissenting.

In Hayward v. Leonard, 7 Pick. 181 (1828), it was held, upon similar facts, that "what the house was worth to the defendant" was an erroneous basis of recovery, and the true rule was "to deduct so much from the contract price, as the house was worth less on account of these deviations." In Atkins v. Barnstable, 97 Mass. 428 (1867), a quantum meruit not to exceed the contract price, less defendant's damage, was the basis of recovery. The difference between the two rules has been pointed out. Keener's Quasi-Contracts, 313 N. 2. The prin