duced. Held, that the letters are admissible. Fayette Liquor Co. v. Jones, 83 S. E. 726 (W. Va.).

Letters not received in due course of post in reply to previous communications must be authenticated in some other way, usually by proof that they are in the handwriting of the alleged sender, or of some one authorized by him. Lingg v. State, 28 Ind. App. 248, 61 N. E. 696; Sweeney v. Ten Mile Oil & Gas Co., 130 Pa. St. 193, 18 Atl. 612. But it has been stated that the contents of a letter cannot be used to prove its genuineness. Freeman v. Brewster, 93 Ga. 648, 21 S. E. 165. Exceptions have been made to this rule, however, in cases where the ordinary methods of authentication are unavailable. In re Deep River National Bank, 73 Conn. 341, 47 Atl. 675; Hollister Bros. v. Bluthenthal, 9 Ga. App. 171, 70 S. E. 970. See 3 WIGMORE, EVIDENCE, § 2148. Thus, in an early case, a letter sent by an illiterate was held to be authenticated by its contents. Singleton v. Bremer, Harp. (S. C.) 201, 209. Similarly, an unsigned typewritten letter was admitted, because it related to matters peculiarly within the knowledge of the alleged sender. Commonwealth v. Drum, 42 Pa. Super. Ct. 156. So, too, another court held that a letter was sufficiently authenticated by its reference to subjects previously discussed between the sender and the addressee. People v. Adams, 162 Mich. 371, 385, 127 N. W. 354, 360. Under circumstances where authentication by handwriting is impossible, the doctrine of these cases seems necessary and just, but it is properly restricted to cases where the internal evidence strongly negatives the possibility of fraud.

INFANTS - TORTS - LIABILITY FOR TORT ARISING IN CONNECTION WITH CONTRACT. The defendant, an infant, hired a motor-car of the plaintiff to ride to a certain destination. During an intentional deviation, the car was injured without negligence on the defendant's part. The plaintiff sues in tort for conversion. Held, that he cannot recover. Fawcett v. Smethhurst, 31 T. L. R. 85 (K. B. Div.).

The general rule imposing liability on infants for their torts is subject to the ill-defined exception of "torts arising out of contract." Slayton v. Barry, 175 Mass. 513, 56 N. E. 574. Thus, in England an infant is not liable for deceit in inducing a contract. R. Leslie, Ltd., v. Sheill, [1914] 3 K. B. 607. In this country, however, there is vigorous protest against according such immunity. Fitts v. Hall, 9 N. H. 441; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420. Contra, Slayton v. Barry, supra. See WILLISTON, SALES, § 26; 14 HARV. L. REV. 71. So, too, the American authorities, contrary to the principal case, generally hold an infant liable for conversion on the unauthorized use of a chattel bailed. Churchill v. White, 58 Neb. 22, 78 N. W. 369; Freeman v. Boland, 14 R. I. 39; Towne v. Wiley, 23 Vt. 355. Contra, Penrose v. Curren, 3 Rawle (Pa.) 351. In fact, the phrase "tort arising out of contract" is obscurely applied. For instance, it is said that the negligent injury of a bailed article is substantially a breach of an implied promise of careful use, for which the infant cannot be sued merely by changing the form of action. Young v. Muhling, 48 N. Y. App. Div. 617, 63 N. Y. Supp. 181. By this reasoning an intentional injury, being a fortiori a breach of contract, could not sustain an action ex delicto against the infant. But the law is otherwise. Moore v. Eastman, 1 Hun (N. Y.) 578. See Eaton v. Hill, 50 N. H. 235, 240. If it be granted that there is sound policy in holding an infant for his torts, the mere circumstance that he has possession of another's property by virtue of an unenforceable contract should not afford him greater license. The principal case would seem entirely too solicitous of the infant. Cf. Burnard v. Haggis, 14 C. B. N. s. 45.

INSURANCE - RE-INSURANCE - LIABILITY OF RE-INSURER TO INSURED WHO ACCEPTS ASSIGNMENT OF RE-INSURANCE CONTRACT IN SATISFACTION OF HIS CLAIM. - The re-insurer of a suretyship company covenanted to pay the

company all damages for which it should become responsible on a bond to indemnify the plaintiff, before the company was compelled to pay. The plaintiff recovered against the suretyship company on the bond, and in satisfaction of the judgment accepted an assignment of the claim against the re-insurer. Held, that the plaintiff can recover on the assigned claim. MacArthur Bros. Co. v. Kerr, 107 N. E. 572 (N. Y.).

For a discussion of the liability of a re-insurer, see 28 HARV. L. REV. 302. As is there pointed out, if the contract in the principal case required the reinsurer to pay an insolvent re-insured the full amount of a claim, rather than the dividend to which the insured was entitled, it should be void in its inception as against public policy. See Hunt v. N. H. Fire U. Ass'n, 68 N. H. 305, 309, 38 Atl. 145, 147. Such a construction, however, should not be adopted unless no other would satisfy the terms of the contract. In the principal case, since the agreement does not explicitly require a payment of more than the surety, if insolvent, would have to pay, the result seems correct.

INSURANCE - RE-INSURANCE - MEASURE OF LIABILITY OF RE-INSURER WHEN INSURER INSOLVENT. An insolvent indemnity company, which had reinsured some of its risks, was unable to pay more than a dividend on losses accruing under the risks re-insured. An order of the court below permitted the receiver to compromise the claims against the re-insurer for less than its unquestioned liability if the original insurer had been able to pay in full. Held, that the order was not an abuse of judicial discretion. MacDonald v. Ætna Indemnity Co., 92 Atl. 154 (Conn.).

As the solvency of the re-insurer was not denied, the decision must be explained on the ground that the legal sufficiency of the receiver's claim to the full amount of the loss was at least doubtful. This is a noteworthy step toward a desirable result, opposed to the entire current of common-law authority, for the English case on which the court relies was reversed on appeal. In re Law Guarantee Trust and Accident Society, Ltd., [1914] W. N. 291 (C. A.). For a criticism of the prevailing doctrine concerning the liability of a re-insurer, as exemplified by that decision, see 28 HARV. L. Rev. 302.

RENT

LANDLORD AND TENANT LIABILITY FOR RENT AFTER BREACH OF COVENANT BY THE LANDLORD. The plaintiff leased a room to the defendants to be used as a jewelry store, and covenanted not to rent any other store in the building to a tenant making a specialty of the sale of pearls. In consequence of the violation of this covenant, the defendant quit the premises and refused to pay any further instalments of rent. The plaintiff sues for the rent. Held, that the plaintiff cannot recover. University Club of Chicago v. Deakin, 106 N. E. 790 (Ill.).

The principal case reaches a sensible result and would be beyond criticism if the question could be considered res integra. A lease is really a continuing contract, and might well be treated like any other bilateral contract. But covenants for rent in leases are generally regarded as independent, and the tenant is not excused from liability by reason of the landlord's breach of covenant. Paradine v. Jane, Aleyn 26; Lewis & Co. v. Chisholm, 68 Ga. 40. The basis for this view appears to be that the lessee has received full consideration by acquiring an estate in the land. Fowler v. Bott, 6 Mass. 63. Another reason is that the law as to covenants in leases developed long before the contractual theory of implied conditions had been fully worked out. The harshness of the rule has been somewhat mitigated by allowing the tenant to terminate the lease when the premises have become untenantable. Piper v. Fletcher, 115 Ia. 263, 88 N. W. 380; Bissell v. Lloyd, 100 Ill. 214. This result has been generally achieved by statute. CONSOL. LAWS N. Y., REAL PROPERTY LAW, § 227; GEN. STAT. MINN., § 6810. But the principle on which the tenant is absolved is not

that his covenant is dependent, but that there has been a constructive eviction. Where, as in the principal case, one room in a building is let, the principles of ordinary bilateral contracts might well be applied, since the lessee gets no estate in the land. See Shawmut National Bank v. Boston, 118 Mass. 125. But even in such cases the extension in the law would seem too radical to be made without the aid of a statute. But see Delmar Investment Co. v. Blumenfield, 118 Mo. App. 308, 322, 94 S. W. 823, 828. Cf. Chicago Legal News Co. v. Browne, 103 Ill. 317.

MANDAMUS - ACTS SUBJECT TO MANDAMUS COMPELLING CITY OFFICIALS TO SUBMIT ALLEGED UNCONSTITUTIONAL ORDINANCE TO POPULAR VOTE. A statute provided that the board of city commissioners should submit to popular vote any measure proposed by a certain percentage of the qualified voters. The commissioners refused to hold such an election, on the ground that the proposed measure would be unconstitutional. Held, that mandamus will issue against them. State ex rel. Foote v. Board of Commissioners, 144 Pac. 241 (Kan.).

The court objects that the constitutionality of the proposed ordinance is a purely moot question. It is true that the courts so far hesitate to pass upon the constitutionality of legislative acts that they allow the point to be raised only by one whose rights are threatened. Sinclair v. Jackson, 8 Cow. (N. Y.) 543, 579. Moreover, courts will ordinarily refuse to restrain the legislative function of passing municipal ordinances, however unconstitutional they appear to be. New Orleans Water Works Co. v. New Orleans, 164 U. S. 471; Stevens v. St. Mary's Training School, 144 Ill. 336, 32 N. E. 962. In the ordinary case, where the mere passing of the ordinance involves no injury or expense, adequate relief is secured by refusing to enforce it when asserted. In the principal case, however, to submit the ordinance to popular vote would involve a large expenditure of public money. Moreover, equity could effectively prevent the expense by a decree against the commissioners, giving relief by analogy to its well-established jurisdiction to enjoin the waste of public funds at the suit of a taxpayer. See Solomon v. Fleming, 34 Neb. 40; Elliott v. Detroit, 121 Mich. 611, 84 N. W. 820; 28 HARV. L. REV. 309. Such considerations might well justify the court in refusing mandamus, where the invalidity of the proposed ordinance, if passed, would be undoubted; but they lose their force where, as in the principal case, the constitutionality of the ordinance was not seriously questioned.

MASTER AND SERVANT

-WORKMAN'S COMPENSATION ACTS — EFFECT OF
In an action under the Work-

ILLEGALITY OF CONTRACT OF EMPLOYMENT.
man's Compensation Act for injuries received by an employee in the course of
his employment, it appeared that the plaintiff's wages were to have been paid
in food and drink, in violation of the Truck Acts, 1 & 2 Wm. IV, c. 37, 50 & 51
Vict., c. 46. Held, that the plaintiff cannot recover compensation. Kemp v.
Lewis, 111 L. T. R. 699 (C. A.).

The case is one of first impression and its result seems questionable, if the relation of master and servant in fact existed. At common law, each party is subject to the incidents of the relation, although bound by no enforceable contract. Thus an infant whose contract is voidable may be barred by assumption of the risk. Houston & G. N. R. Co. v. Miller, 51 Tex. 270. Likewise an employer, who has the right to avoid the contract because of the employee's fraudulent misrepresentation, may still be liable for the violation of a relational duty resulting in injury to the employee. Galveston, H. & S. A. Ry. Co. v. Harris, 48 Tex. Civ. App. 434, 107 S. W. 108; Lupher v. Atchison, T. & S. F. R. Co., 81 Kan. 585, 106 Pac. 284. Contra, Norfolk & Western Ry. Co. v. Bondurant's Adm'r, 107 Va. 515, 59 S. E. 1091. Doubtless a contract to

accomplish an illegal object would prevent a servant engaged in its performance from recovering for injury. Wallace v. Cannon, 38 Ga. 199. But it seems that illegality in the form and not in the object of the contract, although it makes the contract void, should not affect the existence or the incidents of the relation. One of these relational duties is that imposed by the Workman's Compensation Act. See DICEY, LAW AND PUBLIC OPINION, pp. 282-283. Even if the duty to pay compensation is regarded as contractual, it is difficult to support the principal case. The primary purpose of the Truck Acts is the protection of the employee. See Archer v. James, 2 B. & S. 67, 83. He is allowed to avoid any contract for the payment of his wages otherwise than by money; and he may recover such wages though he has received full value in some other form. Consequently it is strange, to say the least, to give the statute such an effect as to deprive the workman of his right to compensation for injury.

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS - RECOVERY UNDER STATUTE OF PLACE OF INJURY WHILE EMPLOYED UNDER CONTRACT MADE ELSEWHERE. The plaintiff's intestate, while employed in New Jersey under a contract made in the state of New York for work to be done partly in each state, suffered a fatal injury in the course of his employment. The New Jersey workmen's compensation act imposes a system of compensation on all employments within the state, unless the parties expressly elect otherwise. N. J. LAWS OF 1911, C. 95, § ii; c. 368. The plaintiff sues to recover compensation under the New Jersey law. Held, that plaintiff may recover. American Radiator Co. v. Rogge, 92 Atl. 85 (Sup. Ct., N. J.).

The problems in the conflict of laws arising under workmen's compensation acts where the same employment is carried on in two or more states were discussed in 27 HARV. L. REV. 271. In view of that discussion, the principal case seems clearly sound in applying the law of the place of injury, since the New Jersey act simply substitutes for the master's tort liability, by an agreement imposed by the law, a statutory liability broader in scope. N. J. LAWS OF 1911, c. 95, § ii, cl. 9; c. 368. See Johnson v. Nelson, 150 N. W. 620 (Minn.). However, another form of statute under which the employer creates a right for the employee against some state insurance fund, or private insurance company, might well have extraterritorial application. See Schweitzer v. Hamburg American S. S. Co., 78 N. Y. Misc. 448, 138 N. Y. Supp. 944; Gould's Case, 215 Mass. 480, 483, 102 N. E. 693, 694; 27 HARV. L. REV. 271. To avoid the inconvenience, uncertainty, and expense consequent upon an injury in the course of an employment contracted in a jurisdiction having the insurance type of statute, but carried on in another jurisdiction like that of the principal case, it seems desirable to have some uniform provision permitting employers whose business is carried on under such circumstances to elect to provide compensation under the law of the jurisdiction in which the principal establishment is located.

MORTGAGES-FORECLOSURE-Defect of Title as Defense to PURCHASEMONEY MORTGAGE. - The plaintiffs conveyed land as trustees under a power of sale and took back a purchase-money mortgage. The land passed to the defendants by mesne conveyances, each grantee, including the defendants, assuming the mortgage. The defendants are still in undisturbed possession, but resist foreclosure on the ground that the original power of sale was invalid as a restraint upon alienation. Held, that foreclosure will be decreed. Peabody v. Kent, 213 N. Y. 154.

While the original purchaser or his grantee remains in undisturbed possession of land, no defect of title in the grantor will afford a defense to the foreclosure of a purchase-money mortgage. Hulfish v. O'Brien, 20 N. J. Eq. 230; Black

v. Thompson, 136 Ind. 611, 36 N. E. 643; Parkinson v. Sherman, 74 N. Y. 88; Platt v. Gilchrist, 3 Sandf. (N. Y.) 118. See 8 HARV. L. REV. 119. Even the pendency of an action at law by a third party to assert paramount title is not a conclusive answer to foreclosure proceedings. Banks v. Walker, 2 Sandf. Ch. (N. Y.) 344; Platt v. Gilchrist, supra. But in such a case equity may stay foreclosure, pending the determination of the action at law. Johnson v. Gere, 2 Johns. Ch. (N. Y.) 546. See Glenn v. Whipple, 12 N. J. Eq. 50; Edwards v. Bodine, 26 Wend. (N. Y.) 109, 114. Fraud or mistake might, of course, furnish a basis for rescission. Finck v. Canadaway Fertilizer Co., 152 N. Y. App. Div. 391, 136 N. Y. Supp. 914; Matter of Price, 67 N. Y. 231. See Parkinson v. Sherman, supra, 94. But in the principal case any defect of title was patent on the records, so that relief of this sort was impossible. Whenever the purchaser is protected by covenants, he may of course recover for any breach of warranty, and will even have a defense to foreclosure by way of circuity of action, if there has been eviction by or surrender to paramount title. See Platt v. Gilchrist, supra. The later acquisition of paramount title by the purchaser, moreover, will not inure to the benefit of the grantor, where the mortgage contains no warranty of title. Brown v. Phillips, 40 Mich. 264. Cf. Jackson v. Littell, 56 N. Y. 108. This should be equally the case where the deed and the mortgage each contain full covenants. Randall v. Lower, 98 Ind. 255. Cf. Bush v. Marshall, 6 How. (U. S.) 284. But where the mortgage warrants title, and the original deed does not, it will be completely enforceable. Saunders v. Publishers' Paper Co., 208 Fed. 441; Hitchcock v. Fortier, 65 Ill. 239.

NEGLIGENCE - DUTY OF CARE- LIABILITY FOR OPERATION OF AUTOMOBILE IMPROPERLY REGISTERED. - The owner of an improperly registered automobile permitted his son to take it for a ride. The son negligently injured the plaintiff. Held, that the father's failure to register the car according to law renders him liable for the son's negligence. Gould v. Elder, 107 N. E. 59 (Mass.). For a discussion of this case, as the latest development of the Massachusetts law concerning the relation of illegal conduct to negligence, see this issue of the REVIEW, at page 505.

NEGLIGENCE - LIABILITY FOR FIRE LOSS CAUSED BY INJURY TO THIRD PARTY'S HOSE. - A fire hose which lay across the track was negligently cut by a street car of the defendant company's. In consequence certain goods of the plaintiff's which were stored in the burning building were destroyed. Held, that the plaintiff may recover. Birmingham, E. & B. R. Co. v. Williams, 66 So. 653 (Ala.).

For a discussion of this case, see NOTES, p. 511.

ATTORNEY AND

NEGLIGENT MISREPRESENTATION - PARTICULAR CASES CLIENT: NEGLIGENT STATEMENT AS TO SECURITY. The defendant, as solicitor for the plaintiff, induced him to release certain lands from a mortgage, by negligently misrepresenting the value of the remaining security. The defendant himself had a subsequent lien on the lands released, and the security retained by the plaintiff proved wholly inadequate. The lower court found that there had been no conscious misrepresentation by the defendant. Held, that the plaintiff can nevertheless recover. Nocton v. Lord Ashburton, [1914] A. C. 932. Where there exists between the parties merely a general duty to be honest, a negligent misrepresentation will not make the defendant liable. Derry v. Peek, L. R. 14 A. C. 337; Angus v. Clifford, [1891] 2 Ch. 449. This doctrine has been much criticised in both England and America. 5 LAW QUART. REV. 410; 14 HARV. L. REV. 185; 24 id. 415. And it has not been universally followed in the courts of this country. See Cunningham v. C. R. Pease, etc. Co., 74 N. H. 435, 69 Atl. 120. Cf. Watson v. Jones, 41 Fla. 241, 25 So. 678;