quacy of the remedy at law, and the latter upon the ground that equity will not specifically enforce contracts for personal services. Lumley v. Wagner and Donnell v. Bennett, supra, however, seem inconsistent with the principles above stated. The cases, to be sure, have been distinguished upon the ground of the existence of an express covenant not to do the act enjoined. In both cases, however, that covenant was one that upon the construction of the contract would have been implied had it not been expressed, an illustration, therefore, of that accidental employment of negative rather than affirmative forms of expression to which, according to Lord Selborne, weight should not be given. Moreover, in neither of these cases did the question of the adequacy of the legal remedy play the important part assigned to it in the opinion endorsed by the principal case.

While the doctrine of Lumley v. Wagner cannot as yet, be said to be established in this country, it has been followed or favorably commented upon by a number of important courts. The American decisions, however, differ from the English in two respects. They have refused to limit the doctrine to cases showing an express covenant not to do the act enjoined, where upon construction of the contract an implied agreement to the same effect would be raised. Duff v. Russell, 60 N. Y. Super. Ct. Rep. 80; affirmed 133 N. Y. 678. They have refused to apply the doctrine to cases where the services contracted for could be rendered by a substitute, that is, to cases where there was an adequate remedy at law. Carter v. Ferguson, 58 Hun (N. Y.) 569. While the case of Lumley v. Wagner has been subjected to some criticism it must be admitted that if the doctrine be accepted the American treatment accords better with general principles of equity than its treatment at the hands of the courts from which it emanated.

CONTRACTS REQUIRING THE ARCHITECT'S APPROVAL AS A PREREQUISITE TO PAYMENT. American courts have in general shown greater leniency than the English in regard to the performance of express conditions precedent. In no class of cases is this fact better brought out than in suits on building contracts in which payment is to be made only when the architect's certificate is obtained. In England the builder must produce the certificate; he can only excuse himself by proving collusion between the architect and the defendant. Batterbury v. Vyse, 2 H. & C. 42; Clarke v. Watson, 18 C. B. N. s. 278. In most of our states fraud or gross mistake in withholding the order will entitle the plaintiff to sue on the contract without it. St. Paul, etc., Ry. v. Bradbury, 42 Minn. 222. Classen v. Davidson, 59 Ill. App. 106. But in New York, if the plaintiff can persuade the jury that he has substantially performed the contract he can recover in spite of the architect's disapproval. Nolan v. Whitney, 88 N. Y. 648. A recent decision in a circuit court of Ohio adopts the New York view. The plaintiff sued on a building contract containing the usual condition of payment upon presentation of the architect's certificate. He did not produce the certificate, and could not prove fraud. The jury found specially that the architect's reason for refusing the certificate was dissatisfaction with the work. The court, on appeal, sustained a general verdict in favor of the plaintiff on the ground that it was not found that the architect's refusal was reasonable. Wicker v. Messinger, 12 Oh. Circ. Dec. 425.

To realize how inconsistent a decision of this nature is with the strict common law doctrines it must be borne in mind that the condition was expressly precedent, that it was not fulfilled, and that no definite excuse for its breach was found by the jury. In theory the plaintiff to recover must show that the defendant prevented the carrying out of the contract. The American courts in general, moved by the extreme rigor of express conditions, have modified the law to permit recovery in cases of fraud or gross mistake. But it is conceived that the true rule is that an honest refusal of the architect to give the certificate, no matter how mistaken he may be, debars the builder from suing on the contract. Bradner v. Roffsel, 57 N. J. Law 412. This rule, while mitigating the harshness of the English doctrine, is yet within the fair meaning of the contract. To make it more lenient is virtually to substitute a jury for the architect. To make it more strict is to acknowledge that the latter need not give an honest judgment. Each of these results is equally undesirable, and the decision of the principal case, tending as it does to enlarge the scope of the New York doctrine, is to be regretted.

INJUNCTIONS AGAINST PICKETING. - The ill feeling and prejudice engendered by strikes make the subject one requiring peculiar delicacy of treatment and one, moreover, of great popular interest. The system commonly known as "picketing" almost always accompanies a strike. Its purpose generally is not only to gain information but to prevent others from entering the employ of the company or person against whom the strike is directed. Whether it is tortious always, or only when it assumes particular aspects, has been the subject of considerable difference of opinion. It is apparently conceded that the use of threats or violence will be enjoined. Murdock, Kerr & Co. v. Walker, 152 Pa. St. 595. Some authorities refuse to go beyond this. Krebs v. Rosenstein, 66 N. Y. Supp. 42. Others extend the injunction to picketing in general. Vegelahn v. Guntner, 167 Mass. 92. In a recent case in Ohio an injunction was granted against all picketing. Dayton, etc., Co. v. Metal Polishers, etc., Union, 11 Dec. (Ohio) 643.

Perhaps the most satisfactory way to treat a subject of this sort is to adopt the view of Mr. Chief Justice Holmes that the intentional infliction of damage is prima facie actionable. 8 HARV. L. REV. 1. This would of course include intentional interference with another's business. Obviously, such interference is actionable if it is accomplished by a direct tort against his person or property. The general rule is that it is also actionable if accomplished by inducing a third person to break a contract with him. Lumley v. Gye, 2 E. & B. 216; Jones v. Stanly, 76 N. C. 355. Although no actual tortious methods are used, interference is still actionable prima facie. In other words, it is actionable unless there is some justification. The ordinary pursuit of business or competition in trade. furnishes a justification, much as the right of a man to use his real estate as he pleases furnishes a justification for the intentional infliction of damage by such means as "spite fences." Letts v. Kessler, 54 Oh. St. 73. See Mogul S. S. Co. v. McGregor, Gow & Co., 23 Q. B. D. 598; L. R. [1892] A. C. 25. It would seem that ordinarily the competition between employer and employee, and among employees themselves, which is just as real as that between business interests, should furnish a justification.

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Holmes, J., dissenting, in Vegelahn v. Guntner, 167 Mass. 92, 104. course these justifications, while they excuse the infliction of some kinds of intentional damage, cannot excuse all. For example, they would not excuse direct torts against the person or property of the rival, nor preventing others from dealing with him by the use of violence or other means tortious as against them. See Tarleton v. M'Gawley, Peake 270. To apply these principles to the subject in hand, it would seem that theoretically perfectly peaceful picketing would be justifiable. Such picketing is conceivable; but, as a practical matter, picketing generally is not, and from the nature of the circumstances cannot be, perfectly peaceful. The very presence of a picket usually contains a threat of violence. It is per se a tortious act as regards the prospective employees —an assault often accompanied by a battery. Therefore it should be actionable where there has been any damage to the prospective employer.

The ground of equity jurisdiction is clear. Irreparable damage is threatened, and there is a continuing injury, so that resort to the legal remedy would result in a multiplicity of suits. Barr v. Essex Trades Council, 53 N. J. Eq. 101, 126. It would be inadvisable to divide up the injunction so as to prohibit tortious actions and permit peaceful picketing on account of the difficulty which has been suggested of separating one from the other. Since, however, the granting of the injunction is largely in the discretion of the court, there would seem to be no reason why the court should not first look at the circumstances, and the general progress of the strike. If the strikers in all their dealings have been so fair and conciliatory that it is apparent that a picket established by them would be peaceful and friendly, though such a state of affairs may be rare, then the injunction might well be refused altogether. Otherwise the injunction should be granted.

DAMAGES FOR TESTAMENTARY LIBEL. The liability of a decedent's estate for libellous matter inserted by the decedent in his will is a subject which seems never to have attracted the attention of legal authors nor to have hitherto received adjudication. A probate court of Pennsylvania, however, has recently been called upon to determine this novel question. In re Gallagher, 49 Pitts. L. J. 161. The petitioner against the estate claimed damages for a libel upon him in the testator's will, the publication of the libel being by probate of the will. The court, after determining that the maxim actio personalis moritur cum persona has no literal application, is led to allow the action by a consideration of the great injury that the petitioner (an attorney) will suffer in his professional character by an imputation thus perpetuated in a public record. One's sympathy is strongly roused in behalf of the libelled claimant. Nevertheless it is impossible on any established theory of the law to support the decision, desirable as it is in its result.

If the libel had been published by the testator to the witnesses, for example, a cause of action would have arisen against him. But at common law this would have abated at his death. Walters v. Nettleton, 5 Cush. (Mass.) 544. And the statutory modifications of the old rule of abatement do not, except in a very few states, apply to the action of libel. See 21 CYC. PL. & PR. 349. But the publication complained of is

by probate so that no cause of action ever existed against the testator. Even if by a fictitious relation of time, such as a disseisee may invoke in bringing suits after re-entry, the publication be carried back to his lifetime, the objections of abatement still apply. To support the action, therefore, necessitates the conception of the deceased's estate as a legal entity, itself capable of committing a tort. Were such a conception justifiable the analogy of a corporation's responsibility for libel would permit the estate to be held. Whitfield v. South Eastern Ry. Co., E., B., & E. 113. In the Roman law, it is true, the deceased's estate was considered a juristic person, though perhaps only as regards rights of property. WINDSCHIED, PAND., § 531. But such personification is completely foreign to the common law theory which deals with the estate through administrators and executors, and not as an artificial person. Unfortunate as the result may be, we are driven to the conclusion that the common law is powerless to recompense one damaged by testamentary Its only weapon against this ingenious and infamous method of doing injury rests in the probate court's power to strike out the libellous matter, a power which courts seem reluctant to exercise. See In the Goods of Honywood, L. R. 2 P. & D. 251.

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PERFORMANCE IN IGNORANCE OF REWARD AS ACCEPTANCE OF OFFER. The question as to whether or not the performance of the conditions of an offer in ignorance of that offer creates a binding contract is answered in contradictory ways in two distinct lines of decisions holding that the contract is completed the moment the claimant performs the prescribed services, even though he act without knowledge and consequently without any intention of acceptance, Eagle v. Smith, 4 Houst. (Del.) 293; Dawkins v. Sappington, 26 Ind. 199; the other holding that without knowledge of the offer there can be no acceptance nor contract, as the essential element of mutual assent is lacking. Howland v. Lounds, 51 N. Y. 604; Chicago & A. R. R. Co. v. Sebring, 16 Ill. App. 181. In the first class of cases the courts base their decisions on grounds of morality and public policy, and acknowledge the anomaly of such contracts, while in the second class the decisions as indicated are based wholly on the lack of mutual assent.

One of the grounds of decision in a late Illinois case involves a consideration of this point, the court holding that a claimant cannot recover, when he has given the required information either before the reward therefor is offered, or at a time when he is ignorant that any reward has been offered. Williams v. West Chicago St. Ry. Co., 61 N. E. Rep. 456. The court argues that the right to recover a reward arises out of the contractual relation between offeror and claimant, implied by law, "the reason of the rule being that the services of the claimant are rendered in consequence of the offered reward, from which an implied promise is raised on the part of the person offering the reward to pay him the amount thereof; and that no such promise can be implied unless the claimant knew at the time of performance that the reward had been offered. It would seem that the decision in Fitch v. Snedaker, 38 N. Y. 248, relied upon in so many other decisions, and chiefly cited in the principal case does not involve the precise point in question. In Fitch v. Snedaker, supra, the claimant had performed before the reward was

offered. Clearly such performance is not a good consideration, as one cannot very well accept an offer before it is made. In the further case of Stamper v. Temple, 6 Humph. (Tenn.) 113, also relied upon, the court's opinion on this precise point is probably obiter. An English case also usually cited in this connection, in deciding that the reward need not be the motive for the performance does not necessarily decide that knowledge on the part of the claimant is absolutely unessential. Williams v. Carwardine, 4 B. & Ad. 621.

If the view be adopted that knowledge is not a prerequisite, an exception must be made to the rule of contracts requiring mutual assent, an exception which it would seem is hardly justifiable. There is great force, however, in the argument that allowing a recovery in such cases is good policy, in that the public will be influenced to be more zealous in their efforts to arrest and convict criminals, restore lost property, etc., without in the least bringing any hardship on the offeror. But if public policy does demand that a recovery in such a case be allowed, it should be not on a contractual but on a quasi-contractual basis. Strictly then the principal case would seem to be logically sound, and in no way to depart from the theory of assumpsit. If we regard a contract as a bargain where both parties must intend that one thing be given in exchange for the other, knowledge seems essential. Furthermore an historical analysis of the action of assumpsit also strengthens the ratio decidendi, for when it is remembered that assumpsit is but a development from the action of deceit, where the plaintiff's cause of action rested largely on the fact that he had placed reliance on the defendant's offer or representation, knowledge on the part of the plaintiff seems all the more necessary.

THE RESPONSIBILITY OF THE EMPLOYER OF AN INDEPENDENT CONTRACTOR IN REGARD TO WORK ON A HIGHWAY. - The general rule that there is no liability for the negligence of an independent contractor is well settled. The mere employment of an independent contractor, however, does not always relieve the employer of responsibility. For example, if a municipality employs an independent contractor to make excavations in a highway, it is generally held that the municipality is liable for injury resulting to one using the highway from the negligence of the contractor in not surrounding the excavations with proper protections or in leaving the work improperly done. Penny v. Wimbledon, etc., Council, [1899] 2 Q. B. 72; Circleville v. Neuding, 41 Oh. St. 465. See contra, O'Hale v. Sacramento, 48 Cal. 212; City of Erie v. Caulkins, 85 Pa. St. 247. The ground of liability is that there is a positive duty imposed by law upon the municipality to see that the streets are in a reasonably safe condition, and it cannot be relieved of this duty by employing an independent contractor to carry it out. 2 DILL., MUN. Cor., 4th ed., §§ 1027-1031. In other words, it is not really the independent contractor's negligence for which the municipality is held, but its own failure to fulfil a positive duty.

A somewhat similar question arises where an individual or corporation is permitted by public license to make excavations in the highway. This question was presented in a recent case in New York. The defendant railway was given authority by statute to cross a highway. Apparently the only conditions were that certain specifications should be followed,