tions still runs against the action; an heir can get no benefit, as the chose in action cannot be regarded as impliedly assigned to him; and the original grantee may release a covenantor who is without notice of the assignment, thus making a grantee's rights uncertain.

More satisfactory principles have been developed by most American courts which have decided the point. They have held that although there may technically be an immediate breach, no real breach exists until actual damages are suffered, so that, until such time, the statute does not run, and the covenant passes with the land, like the covenant for quiet enjoyment. Richard v. Bent, 59 Ill. 38; Foote v. Corry, 10 Ohio, 317; Post v. Campan, 42 Mich. 90. This view, which in effect regards the covenant as one purely for future indemnity, when made logically consistent by recognizing no immediate technical breach, seems clearly the best. All the desired results are thus obtained, and although the literal wording of the covenant is violated, yet in view of the facts that only indemnifying damages are allowed, that the covenant purports to be made with the covenantee, his heirs and assigns, and that its original purpose was solely to indemnify, the interpretation is readily defensible. This same doctrine ought properly to be applied to the covenants of right to convey and of seisin. Since however, in actions on these covenants, substantial damages may be recovered before they are actually sustained, the effect of an immediate breach has been less burdensome, and in consequence the decisions give less authority for holding such cases within the scope of the more liberal view.

RECENT CASES.

AGENCY-COMMERCIAL TRAVELLER

AUTHORITY TO CONTRACT. — Held, that in the absence of express authority to bind the principal, a commercial traveler can merely solicit and transmit orders, and the contract is not complete until the order is accepted by the principal. John Matthews, etc., Co. v. Renz, 61 S. W. Rep. 9 (Ky.).

The order solicited by the drummer has frequently been declared, as here, to be a mere offer, requiring acceptance by the principal to complete the contract. Burbank v. McDuffee, 65 Me. 135; McKindly v. Dunham, 55 Wis. 515, 518. The proper rule of law in such cases, however, is the ordinary rule of agency, that unless the act is authorized the agent cannot make a contract binding his principal; but such authorization may be either express or implied, and its extent is in each case a question for the jury. Finch v. Mansfield, 97 Mass. 89. It is doubtless generally the fact that there is no authority to bind the principal, but deciding such matters as questions of law leads to objectionable results. For example, a local custom giving agents greater authority than usual was held invalid on the ground that it was inconsistent with what had been declared to be a rule of law. Higgins v. Moore, 34 N. Y. 417. While the result reached in the principal case is doubtless satisfactory as a matter of fact, the proposition stated as a rule of law, though supported by authority, must be regarded as unsound.

BANKRUPTCY MINING CORPORATIONS INVOLUNTARY BANKRUPTCY. - The Bankruptcy Act of 1898, § 4 b, provides that "any corporation engaged principally in manufacturing, trading or mercantile pursuits. . . may be adjudged an involun tary bankrupt." Held, that under the above section, a corporation engaged in coalmining is not liable to involuntary bankruptcy. In re Woodside Coal Co., 3 N. B. N. Rep. 336 (Dist. Ct., E. D. Pa.).

A coal-mining corporation, as lessee of mining lands, paid the owner of the lands a certain sum per ton for coal mined, and also sold supplies to its workmen. Held,

that under § 4 6 of the Bankruptcy Act, the corporation is liable to involuntary bankruptcy. In re Keystone Coal Co., 3 N. B. N. Rep. 349 (Dist. Ct., W. D. Pa.).

In the absence of judicial construction, § 4 6 of the Bankruptcy Act would hardly include mining corporations, even when, as often happens, such corporations, in connection with mining, engage in operations allied to trade or to manufacture. LOWELL, BANKR., 356. The word "traders " in bankruptcy statutes has usually been held not to include mine-operators. Ex parte Schomberg, L. R. 10 Ch. 172. The same result has been reached although the operator furnished supplies to his workmen. Ex parte Gallimore, 2 Rose, 424. "Mercantile seems not to extend the meaning of "trading" in this direction. "Manufacturing corporations," although apparently a new definition in bankruptcy law, has been held, under state taxation statutes, not to include mining corporations. Byers v. Franklin Coal Co., 106 Mass. 131. The decision in In re Woodside Coal Co., supra, is therefore apparently correct under the Act, however undesirable its result, and is in accord with earlier decisions under the present law. In re Chicago-Joplin, etc., Co., 104 Fed. Rep. 67. See 14 HARV. LAW REV. 298. As it is probably advisable to place in one class all corporations engaged principally in mining, the distinction suggested in In re Keystone Coal Co., supra, between corporations working leased lands and others, would seem undesirable, besides finding no support in the Act.

BANKRUPTCY-STATE EXEMPTION LAWS WAIVER OF EXEMPTIONS. - Under the exemption laws of Georgia a debtor had waived certain rights to exemption in favor of particular creditors. The debtor becoming bankrupt, the trustees set apart to him certain property as exempt, whereupon these creditors petitioned that the bankrupt's discharge be withheld until they could enforce their rights under the waivers, either in the state courts or in the court of bankruptcy. Held, that the petition cannot be granted. Woodruff v. Cheeves, 105 Fed. Rep. 601 (C. C. A., Fifth Circ.).

By the Bankruptcy Act of 1898, §§ 6 a, 70 a, state exemption laws are still in force, and the title to exempt property remains in the bankrupt. As waivers of exemptions usually create no lien, their holders may prove their claims in bankruptcy and will be barred by the discharge. BANKR. ACT of 1898, § 17 a. If, then, property in which exemption rights have been waived is held, as in the principal case, to be exempt under the Act, the bankrupt receives it free and clear, and waiver of exemptions, provided for by state laws, is virtually abolished. In re Black, 4 Am. Bank. Rep. 776; In re Woodruff, 96 Fed. Rep. 317. To avoid this difficulty by withholding the discharge, arter delivering the property to the bankrupt as exempt, until creditors holding waivers reach the property through the state courts, appears contrary to the express words of the statute. BANKR. ACT OF 1898, § 14 b. The proper solution seems to be to allow the trustee to take such property as not exempt. In re Sisler, 96 Fed. Rep. 402. Apparently the bankruptcy courts have power to administer it for creditors holding waivers. In re Garden, 93 Fed. Rep. 423; In re Sisler, supra. The principal case is supported, however, by several earlier decisions under the Act. In re Camp, 91 Fed. Rep. 745; In re Hill, 96 Fed. Rep. 185. Nevertheless it seems incorrect and ought not to be followed.

BILLS AND NOTES-CHECK PROCURED BY FRAUD - LIABILITY Of Drawee. The Negotiable Instruments Act provides that no right can be acquired under a signature made without the authority of the person whose signature it purports to be, "unless the party against whom it is sought to enforce such right is precluded from setting up the . . . want of authority." R. I. PUB. LAWS OF 1899, c. 674, § 31. A, representing himself as B, called upon C and induced the latter to draw for him a check payable to the order of B. A indorsed in the name of B and the bank paid the indorsee. Held, that the bank is liable to C for the sum paid, both at common law and under the Negotiable Instruments Act. Tolman v. American Nat. Bank, 48 Atl. Rep. 480 (R. I.).

If A, representing himself as B's agent, procures an instrument payable to B, obviously the drawer intends neither to make A payee nor to authorize him to indorse. Rogers v. Ware, 2 Neb. 29. But if A, representing himself as B, obtains an instrument payable to B, the drawer fairly intends that the person before him shall be the payee, although he erroneously supposes that this person is B. See 14 HARV. LAW REV. 60. In the present case therefore, apart from statute, the bank, having followed the directions of the drawer, should not be liable to him. Land, etc., Co. v. Northwestern Nat. Bank, 196 Pa. St. 230. The point does not seem to have arisen before under the Negotiable Instruments Act, and no decision at common law has been found

in accord with the principal case. Moreover under the English Bills of Exchange Act, apparently the bank would be protected. See Clutton v. Attenborough, [1897] App. Cas. 90. Finally, the Negotiable Instruments Act hardly compels the result reached, for although the bank relies upon an indorsement made without the authority of the person whose signature it purports to be, yet, as that indorsement accorded with the intentions of the drawer, he ought to be precluded from setting up the want of authority.

BILLS AND NOTES- PURCHASER FOR VALUE - AMOUNT OF RECOVERY. - A note having been procured by fraud, a purchaser for value without notice before maturity sued the maker on the note. Held, that only the amount paid by the plaintiff for the note, with interest, can be recovered. People's Nat. Bank v. Mulkey, 61 S. W. Rep. 528 (Tex., Civ. App.).

There is some authority supporting the proposition of this case. Huff v. Wagner, 63 Barb. 215. The sounder view, which seems at least equally well supported by authority, is that the holder should recover the face value of the note, and that the amount paid for it is material only as evidence on the question of bona fides. Lay v. Wissman, 36 Iowa 305. The suit is brought on the express promise contained in the note, to which the plaintiff has legal title, and therefore the amount recovered should be the face value, unless the maker has an equitable defence. If he has such a defence the purchaser is not holding free from equities, and the fundamental principle is violated that a purchaser for value without notice takes free and clear from all equities. Kitchen v. Loudenback, 48 Ohio St. 177. Moreover the rule in the principal case is objectionable on account of the inconvenience and confusion in commercial dealings which would result. Cromwell v. County of Sac, 96 U. S. 51.

CONTRACTS CONDITIONS DEFENCE OF PLAINTIFF'S NON-PERFORMANCE. The defendants agreed to employ the plaintiff for a certain period, and the plaintiff agreed to perform his work in a manner satisfactory to the defendants. Held, that the defendants might discharge the plaintiff before the expiration of the term if the work was not absolutely satisfactory to them. Gwynne v. Hitchner, 48 Atl. Rep. 571 (N. J., Sup. Ct.).

It is of vital importance to determine in a contract whether either promise is made an express condition. If so, then, according to the general doctrine that an express condition must be exactly performed, any breach of that promise will necessarily be fatal to a recovery against the other party. Kelly v. Sun Fire Office, 141 Pa. St. 10. If the promise is not an express condition, the question is whether there has been substantial performance. LANG., SUM. CONT., §§ 157-161. If the breach is only a slight one, the other party must perform on his part and seek his remedy in damages. Norrington v. Wright, 115 U. S. 188; King Philip Mills v. Slater, 12 R. I. 82. Apparently in the principal case the plaintiff's promise was not an express condition, but the court seems to have overlooked the importance of that question. The case should have turned on the materiality of the breach, and the determination of that question should have been left to the jury.

CONTRACTS - HUSBAND AND Wife- SEPARATION AGREEMENTS. In consideration of the plaintiff's promise to live apart from the defendant, her husband, the latter promised to assign certain life insurance policies to her. Held, that the contract is void as against public policy. Baum v. Baum, 85 N. W. Rep. 122 (Wis.). See NOTES, p. 147.

CONTRACTS REPUDIATION — ANTICIPATORY BREACH. The defendant contracted to leave by will a certain share of his property to the plaintiff, in consideration of the latter's agreement to work for the defendant without recompense until twentyone years of age. After the plaintiff had fully performed, the defendant asserted that he would not carry out his promise. Held, that the plaintiff has no present right of action, as the defendant may later elect to perform. Pittman v. Pittman, 61 S. W. Rep. 461 (Ky.).

The doctrine of anticipatory breach has been definitively accepted by the English and by most of the American courts. Synge v. Synge, [1894] 1 ̊ Q. B. 466; Roehm v. Horst, 178 U. S. 1. The hardship imposed on a plaintiff by the supposed necessity of continuing an otherwise useless performance, in order to put himself in a position to sue on his contract when the time for its performance by the defendant shall arrive, has been held to justify the doctrine. This reasoning assumes that the defendant's repudiation would not prevent his relying on a resulting non-performance

on the plaintiff's part as an answer to the plaintiff's action. It has been suggested that where, as in the principal case, a contract has been fully performed on the plain. tiff's part before repudiation, the case does not fall within the reason for the rule. Roehm v. Horst, supra. But except in cases where the defendant's obligation is merely to pay money, the plaintiff would generally be obliged, in order to protect himself, to make other contracts, which would usually render it inconvenient to accept the defendant's performance. In justice, therefore, the plaintiff ought to have a right, without losing his cause of action against the defendant, to refuse acceptance in case the latter should change his mind and offer to perform. But if the defendant's repudiation does not prevent his setting up a resulting non-performance on the plaintiff's part, it would not prevent his setting up a resulting unwillingness to accept, and so defeating the plaintiff's cause of action. Convenience, which is held to justify the anticipatory breach doctrine in the case of contracts still executory, would equally justify the application of the doctrine in most cases where the plaintiff has fully performed. As these cases, therefore, cannot as a class constitute a proper exception to the general doctrine, and as no other exception has ever been suggested which would include the principal case, the decision must be regarded as altogether inconsistent with the prevailing rule.

CONTRACTS-SPECIFIC PERFORMANCE BUILDING CONTRACT. The plaintiffs, in pursuance of a scheme of street improvement, sold and conveyed a plot of land to the defendant, who covenanted to erect buildings thereon in accordance with certain specified plans. Held, that specific performance of the defendant's promise will be ordered. Mayor, etc., of Wolverhampton v. Emmons, [1901] 1 Q. B. 515 (C. A.).

As a general rule, specific performance of a building contract will not be enforced, the courts thinking the remedy at law to be usually adequate, and being impressed by the difficulty of supervising the performance. The South Wales Ry. Co. v. Wythes, I K. & J. 186. In England, however, there is a well established exception, when it appears that the defendant has by the contract obtained from the plaintiff the land on which the work is to be done, that the work is accurately defined, and that the plaintiff has a material interest in its execution, for which damages would not be adequate compensation. FRY, SP. PER., § 103; Storer v. Great Western Ry. Co., 2 Y. & C. Ch. 48. In the United States the rule is in general the same. Gregory v. Ingwersen, 32 N. J. Eq. 199. Cf. Ross v. Union Pacific Ry. Co., I Woolw. (Circ. Ct.) 26. The principal case seems from the facts reported to fall within the exception as stated, and is therefore sound according to English and American authority.

BE PERFORMED

CONTRACTS STATUTE OF FRAUDS - AGREEMENT NOT TO WITHIN ONE YEAR. - A turnpike company orally agreed to exempt the occupants of a certain farm, for all time, from liability to pay tolls. Held, that this contract did not come within the section of the Statute of Frauds relating to agreements not to be performed within one year. Great Western Turnpike Co. v. Shafer, 57 N. Y. App. Div. 331.

When a contract does not fix the time for performance, any possibility in the natural course of events of full performance within a year is sufficient to avoid this section of the statute. Clark v. Pendleton, 20 Conn. 495. This includes cases where the time for performance is expressly or impliedly made dependent on length of life. Fenton v. Emblers, 3 Burr. 1278. But when the contract by its express terms is to require more than a year for complete performance, the statute clearly applies. Boydell v. Drummond, 11 East, 142. In several cases of this latter class however, in which on a certain contingency, such as the death of a person concerned, the contractor's liabil ity might in fact cease within a year, courts have held that the statute did not apply. Doyle v. Dixon, 97 Mass. 208. But under such circumstances it seems rather that further performance is excused on the ground of impossibility than that performance is then completed, and the statute should be held to apply. Dobson v. Collis, 1 H. & N. 81. In the principal case, where the exemption was expressly for all time, any such contingency as the dissolution of the corporation within a year would not make performance complete, but would simply make future breach impossible. Therefore the decision seems wrong.

CRIMINAL LAW-FORMER JEopardy — Continuous OffenCE. The defendant kept a gambling room for a continuous period of time. Two indictments were found against him covering different portions of this period. Held, that a conviction on one indictment is a bar to a prosecution on the other. Cawein v. Commonwealth, 61 S. W. Rep. 275 (Ky.).

The court proceeds upon the theory that there is but one continuous offence up to the date of the finding of the indictments, and that the state, like the plaintiff in a civil case, is not allowed to split up one cause of action. Clearly if the state indicted at the end of each day, the statutory penalty might be imposed for each day's offence. It is difficult to see why by lapse of time offences once distinct should become inseparable, so that only one penalty can be imposed. The result is that one committing the crime for a long space of time before prosecution can be punished no more severely than one who engages in the criminal occupation for a day, though the former has done a much greater wrong to the state. The analogy of civil cases does not apply. There the total recovery of the plaintiff is not diminished by the operation of the rule, whereas here the total amount of punishment imposed depends entirely on the number of actions brought. The authorities on the point are squarely in conflict. See in accord with the principal case, In re Snow, 120 U. S. 274; State v. Lindley, 14 Ind. 430; contra, Commonwealth v. Connors, 116 Mass. 35; People v. Sinell, 131 N. Y. 571. The rule of the latter cases seems preferable.

CRIMINAL LAW - HOMICIDE-PREVENTION OF FELONY.-The defendant saw his brother and the deceased fighting, and shot the latter. He defended on the ground of imminent peril to his brother, who, it appeared, provoked the fight, although it was not shown that the defendant knew this. Held, that since the defence relied on would not have been available to his brother, the defendant cannot take advantage of it. Wood v. State, 29 So. Rep. 557 (Ala.).

It is well settled that one may interfere, even to the taking of life if necessary, to prevent a violent felony. Regina v. Rose, 15 Cox C. C. 540. Moreover, if one acts properly under the circumstances as they reasonably appear to him at the time, he is guilty of no crime. Levett's Case, Cro. Car. 538; Commonwealth v. Power, 48 Mass. 596. Consequently, the fact that the deceased would have committed no felony in killing his antagonist, if not then known to the defendant, is immaterial. In each case it is a question of fact what the defendant did reasonably believe, and unless the court is prepared to rule that on the evidence stated no one in the defendant's position could reasonably have believed that what the deceased was apparently about to do would constitute a felony, the decision can hardly be supported.

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EQUITY INJUNCTION AGAINST PROSECUTION OF SUIT-CONTEMPT. — The defendant, in violation of an injunction issued by the New Jersey Court of Chancery against the further prosecution of his action for divorce in North Dakota, obtained a decree in that action against the present plaintiff. Held, that the defendant must pay a fine for his contempt, and be imprisoned until he takes proper proceedings to have the divorce set aside. Kempson v. Kempson, 48 Atl. Rep. 244 (N. J., Ch.). See NOTES, p. 145.

ADMISSIBILITY OF CONFESSIONS

EVIDENCE COURT AND JURY.-Held, that where there is conflicting evidence as to the voluntary character of a confession, the question of its admissibility is for the jury under proper instructions. State v. Moore, 61 S. W. Rep. 199 (Mo.).

The decision is in accord with the practice in many jurisdictions of leaving to the jury the question of the voluntary character of a confession, with instructions to disregard it if made under improper circumstances. Burdge v. State, 53 Oh. St. 512. This practice is at variance with the elementary principle that all questions whether of law or of fact relating to the admissibility of evidence are for the court alone. Bartlett v. Smith, 11 M. & W. 483. The burden of showing the voluntary nature of the confession would seem to be upon the prosecution. Regina v. Thompson, [1893] 2 Q. B. 12; contra, Rufer v. State, 25 Oh. St. 464 (semble). Accordingly, unless the court is satisfied that the confession was made under proper conditions, it should not be allowed to go to the jury. State v. Andrew, Phillips (N. C.) 205. The duty of the jury to consider the surrounding circumstances in determining the probative value of the confession when admitted, is a matter entirely distinct from the right of the prisoner that only evidence that is legally admissible shall be adduced against him. Brown v. State, 71 Ind. 470. The decision seems wrong on principle, and prejudicial to the prisoner in its effect, for a confession once admitted, even though found to be involuntary, can hardly fail to exert some influence upon the minds of the jurors.

EVIDENCE-CRIMINAL LAW

- ADMISSION BY CONDUCT. - In a trial for murder, evidence was admitted that half an hour after the shooting occurred, and before the