is simple and direct, and where the continued supervision of the court is not essential to its successful accomplishment. Blanchard v. Detroit, etc., R. R. Co., 31 Mich. 43, 54. These considerations are not applicable, however, to the present case. The defendant is guilty of contempt, and the court may well impose what conditions it pleases upon his release. It remains for the defendant to show to the satisfaction of the court that he has properly performed them. See People v. Rogers, 2 Paige, 103; Elizabethtown, etc., R. R. Co. v. Ashland, etc., Ry. Co., 94 Ky. 478. The position of the new wife presents some interesting problems, but seems properly not to have affected the question of the defendant's punishment for his contempt.

The recent decisions of the Supreme Court of the United States, affirming the unfavorable view taken by the New Jersey courts of divorces similar to that obtained by the defendant in this case, remove any doubt as to the practical justice of the present decision.

TIONS.

It

PROPERTY EXempt from the Operation of the Statute of LimitaIt has always been a doctrine of the common law that the Statute of Limitations does not run against the king. The basis of the rule is sound public policy, that the rights of the people should not be affected by the negligence of public officials. United States v. Hoar, 2 Mason, 311. Some doubt has arisen, however, as to the extent of the right. is admitted that the Federal and the state governments are not affected by the running of the Statute, but there is a conflict as to whether municipalities are exempt. Some states hold that as a city is a compact body, and, therefore, as encroachments upon public rights are the more quickly observed and acted upon, there is no reason for exempting them. City of Wheeling v. Campbell, 12 W. Va. 36. But the weight of authority supports the view that as a city is a mere subdivision of the government in many respects, it should have all the protection that the other departments of the government enjoy. Kopf v. Miller, 101 Pa. St. 27; Dillon, Municipal Corp., 4th ed., § 675.

A novel extension of this rule has recently been made by the California court. By virtue of an act of Congress, the plaintiff railroad was granted a right of way. Later the defendant entered into exclusive possession of an unused portion of this way and held it adversely for the statutory period. The court held that as the land belonging to the railroad had been set apart for public purposes, it was exempt from the running of the Statute. Southern Pac. Co. v. Hyatt, 64 Pac. Rep. 272. The language of the court treats this as a case where the land over which the railroad runs has been granted away from the government, but the facts are so meagrely reported that it is not wholly clear. If the fee is vested in the government, the decision is clearly right. United States v. Hoar, supra. If on the other hand the land has been granted away, the decision may well be doubted. In an earlier California case, the railroad recovered under similar circumstances, but the question of the Statute was not raised. Southern Pa. Co. v. Burr, 86 Cal. 279. Beyond this, there seems to be no decision in point. There are, it is true, cases holding that a citizen may obtain a right of way over railroad tracks by prescription. Gay v. Boston & Albany R. R., 141 Mass. 407. These cases may however be distinguished on the ground that the presumption of a grant,

which the railroad is able to give, lies at the bottom of such prescriptive rights.

On principle, there seems to be no reason for exempting the railroad. Although it has many public duties to perform, yet it is strictly a private corporation formed by voluntary agreement, and operated for private gain. In no regard is it a public corporation. Mt. Hope Cemetery Co. v. Boston, 158 Mass. 509, 521. But more than that, the policy underlying the exemption does not apply. Government lands are so scattered that, with the best of officials, it is hard to keep track of them and to act promptly against adverse holders. But the land of a railroad is always within the easy reach and control of its officials, and the policy of the Statute of Limitations, that of quieting and securing titles, applies as strongly in their case as in any. As authority has not already extended the rule of exemption to railroad land, it is doubtful if the principal case will be followed.

CONTRACTS OF SEPARATION BETWEEN HUSBAND AND WIFE. - De cisions regarding the validity of separation agreements between husband and wife, being grounded on public policy, have in the past been almost as various as private opinions of what public policy should demand. England has at last adopted the liberal doctrine that agreements looking to an immediate or past separation are not only valid, but the mere promise to live apart forms good consideration and will be specifically enforced. Besant v. Wood, 12 Ch. Div. 605. In America the promise to live apart has been generally held contrary to public policy. Yet it has not invalidated a transaction having for its purpose an immediate separation or the continuance of one already consummated, as distinguished from one distant or contingent, provided there has appeared other good consideration. Randell v. Randell, 37 Mich. 563; Hutton v. Hutton, 3 Pa. St. 100. A recent case shows a tendency to make the American rule even more rigid. Baum v. Baum, 85 N. W. Rep. 122 (Wis.). The plaintiff agreed to live apart from her husband in consideration of his promise to assign to her certain life insurance policies. Upon the ground that all separation agreements are void unless the parties have already separated, it was held that the husband's promise could not be enforced. The decision might well be supported on the ground that the wife's only consideration was the void promise to live apart, but the contract was treated as the ordinary one for separation containing other good consideration. The English common law the court regarded as in accord with its view, until reversed during the present century. But although this idea is somewhat general, because it was the view of the ecclesiastical courts, the truth is that neither equity nor law regarded the condition of separation as voiding an otherwise valid agreement. Gawden v. Draper, 2 Vent. 217; Rex v. Mead, 1 Burr. 542; Rodney v. Chambers, 2 East 283. Owing to the wife's inability to contract in her own name such agreements were formerly carried out through the intervention of third parties. But this disability having been removed, she should be as competent as a stranger to enter into the agreement. Sweet v. Sweet, [1895] I Q. B. 12. The broad disapproval of contracts providing for an immediate separation, expressed by the court in the principal case, is, then, contrary both to the old common law and to the generally accepted American doctrine

The general American view, admitting the validity of agreements con

taining stipulations for separation, though such stipulations themselves are not enforceable, seems the wisest. As long as married people are allowed to live apart by mutual consent, it is a just rule which permits the husband to bind himself, in such circumstances, to support the wife. The law, to be sure, decrees and arranges for separation when it finds cause, but it must be admitted that the parties, if determined upon a separation, can in practice always show adequate cause, and that of this they are in truth the best and final judges. Therefore, when a separation is agreed upon, if it can be quietly arranged out of court, the results seem preferable to those necessarily attendant on the notoriety and scandal of a judicial separation. Public policy certainly demands that marriage itself be not so easily dissolved that it shall come to be lightly entered upon. But in giving effect to separation agreements between parties determined on living apart, the courts in no wise lighten the marriage bonds. They prohibit neither subsequent agreements to. live together, nor do they go to the objectionable extreme of the English view by prohibiting attempts of one party to join the other, but merely make valid the husband's agreement to fulfil his marital. duty of supporting his wife.

REMEDIES FOR BREACH OF WARRANTY. - Two classes of remedies are almost universally granted in case of breach of warranty; one, in the nature of recoupment, by showing the inferiority of the goods in mitigation of damages, when suit is brought on the contract of sale, Poulton v. Lattimore, 9 B. & C. 259; the other, a recovery on the warranty itself, either in the form of an independent action, or by means of a counterclaim. Mondel v. Steel, 8 M. & W. 858; Underwood v. Wolff, 131 Ill. 425. As the latter remedy includes the former, recoupment is to-day of little practical value except in a few cases, where, through a technicality of pleading, the right to counterclaim has been lost.

A third remedy is available in some jurisdictions — the right to rescind if the goods prove inferior. Bryant v. Isburgh, 79 Mass. 607. This right is denied in the English courts and in many of the states. 14 HARVARD LAW REVIEW, 327, n. 3. The English rule is followed in a recent Connecticut case where a manufacturer, in fulfilment of an order, sold a machine of the description given, which failed to do properly the work for which it was constructed. Worcester Manufacturing Co. v. Waterbury Brass Co., 48 Atl. Rep. 422. It was held that the delivery and acceptance of the machine constituted a waiver of any right to return the goods because of their inferior quality. Inasmuch as the defect in such a case is not discoverable until after delivery and acceptance, this is substantially a denial of the right to rescind.

The English rule is much confused by the distinction attempted between a condition and a warranty. A purchaser may regard a stipulation in a contract of sale as a condition, justifying rescission before he accepts the goods, but after acceptance he can treat the breach of the condition only as a breach of warranty, which is not sufficient ground for repudiating the contract. Sales of Goods Act, § 11, 5, 1. The theory is that after receipt of the goods the buyer, by retaining them, has derived some benefit, and cannot therefore restore the seller to his original position. Street v. Blay, 2 B. & Ad. 456. Such a tender regard for the seller, who has violated his contract by furnishing an inferior article, seems unjust.

As a matter of fact, moreover, the buyer fails to derive any appreciable benefit, and often, as in the principal case, suffers positive injury through unsuccessful attempts to utilize the article. It would therefore seem more just to hold that the buyer, who can discover the defect only on inspection after acceptance, should not by that acceptance forfeit his right to return the goods and be compelled to retain what must frequently prove to be an article useless for his purposes.

On strict legal theory, as well as on these practical grounds, the right of rescission should be granted. Optenberg v. Skelton, 85 N. W. Rep. 356 (Wis.). While the warranty in form is collateral, in its essence it is an important part of the contract and a material element of the consideration, for the failure of which the right of rescission should be allowed. It cannot properly be regarded therefore as waived by an acceptance, which is necessary for the purposes of inspection.

THE ADMISSIBILITY OF POST-TESTAMENTARY DECLARATIONS. - A recent decision by the United States Supreme Court is an important addition to the conflict as to when a testator's declarations will be admitted as evidence against the validity of an alleged will. A document was offered as a last will, and to show either forgery or revocation, the testator's unsworn declarations concerning the disposition of his property were offered by those who opposed its probate. The court held such evidence inadmissible unless made so near to the time of its execution as to be a part of the res gesta. Throckmorton v. Holt, 21 Sup. Ct. Rep. 474.

As far as the question of forgery is concerned the decision is in accord with the weight of authority. Walton v. Kendrick, 122 Mo. 504; Gordon's Case, 50 N. J. Eq. 397. In some jurisdictions, however, there is a tendency to admit such evidence under certain circumstances. For instance, in one state, it is admitted not as proof in itself of forgery, but as corroborative of other evidence. Swope v. Donnelly, 190 Pa. St. 417. In other states, it is admitted to show the state of feeling between the parties merely. Johnson v. Brown, 51 Texas, 65. These courts argue that this evidence, although dangerous, is often of great probative value and sometimes is the only evidence of the fraud. But this argument goes too far. These declarations come within the rule excluding hearsay, and our law of evidence begins only when we begin to exclude evidence which is logically relevant. The insuperable difficulty is that there is no recognized exception to the rule against hearsay which will cover the case.

With the question of revocation, however, there is more difficulty, as some late American decisions support the admissibility of such declarations for that purpose. Lane v. Hill, 68 N. H. 275; Steph. Dig. Ev., art. 29. These courts rely mainly upon a comparatively recent English case of very doubtful authority. Sugden v. Lord St. Leonards, L. R. 1 Pr. Div. 154. That case, which overruled earlier cases, has been looked upon with disfavor in its own jurisdiction.

Woodward v. Goul

stone, 11 App. Cases, 469. Moreover, at most, the case stands for this only, that such declarations may be used to corroborate other evidence as to the contents of a lost will. Granting its authority for that proposition, there is nothing to warrant the extension of that doctrine to cases similar to the principal case.

In one set of circumstances, however, a strong argument of admissi

bility might be made. When an act of revocation is clearly proved, such declarations might be admitted to show the intent of revocation. It is the modern doctrine that where intent is material, contemporaneous declarations of intent are admissible. Commonwealth v. Trefethen, 157 Mass. 180. It might then be urged that at the time when they were made, the testator intended to dispose of his property in a manner inconsistent with the will. From this it might be possible to infer that when he did the act he had the requisite intent. To support this use, analogies might be drawn from the cases where a bankrupt's subsequent statements are used to show intent in an act of bankruptcy. Rawson v. Haigh, 9 J. B. Moore, 217. But it would require strong evidence to bridge over the time between the act and the declarations, and thus make the subsequent intent material. Even then it would be somewhat of a novel extension. But in the principal case, as there is no evidence that the testator did an act of revocation nor that his intent was continuous, the decision seems clearly right.

COVENANTS AGAINST INCUMBRANCES RUNNING WITH THE LAND. The benefit of the old common law warranty ran to the heirs or subgrantees of the original feoffee. Holmes's Common Law, 375. When conveyances came to be made by force of the statute of uses, the common law warranty, applicable only to feoffments, became obsolete and covenants of right to convey, of seisin, and against incumbrances were introduced largely to take its place. Owing to the unfortunate wording of these covenants, a literal interpretation results in their being regarded as broken the moment they are given. By such a breach, they are prevented from running with the land for the benefit of heirs or remote grantees, and thus do not serve the purpose for which they were originally intended. In actions on the covenant against incumbrances it has been definitely decided that only nominal damages may be recovered until actual damages have been suffered. Therefore, provided an immediate breach is recognized, the disastrous result follows, that not only does the covenant against incumbrances fail to run for the benefit of grantees as in the case of the other covenants, but the Statute of Limitations may run against the claim before it is possible to recover more than nominal damages. As regards this covenant, therefore, the courts have made special efforts to obviate the foregoing consequences.

In England the courts adopted the doctrine that the breach of these covenants, although immediate, is continuing, and therefore its benefit runs with the land to subsequent holders. Kingdon v. Nottle, 4 M. & S. 53. However desirable the results, this reasoning is clearly indefensible. Discussion of its soundness has. however, been set at rest by a statute providing that all such covenan's shall run with the land. In America it has been held in several jurisdictions that although the covenant is broken at once, thereby becoming a mere chose in action, yet this chose in action is impliedly assigned to all subsequent grantees. Security Bank v. Holmes, 68 N. W. 113 (Minn.); contra, Kenny v. Norton, 10 Heisk, 384 (Tenn.). The New York Court of Appeals, dealing with the question for the first time, has recently adopted this view in a strong dictum. Geiszler v. De Graaf, 59 N. E. Rep. 993 (N. Y.). Although this implication of assignment is not unreasonable, it is obvious that the desired results are thus only partially obtained. The Statute of Limita