Section 9 of the Interstate Commerce Act, however, deprives state courts of jurisdiction over shippers' suits for its violation. Van Patten v. Chicago, M. & St. P. R. Co., 74 Fed. 981; Copp v. Louisville & Nashville R. Co., 43 La. Ann. 511, 9 So. 441. The fact that the carrier sues in the principal case would seemingly take it out of this section and be a short ground for the decision. The court, however, goes on the broader but correct theory that the carrier sues for services rendered and not for the violation of the statute, which merely annuls the agreement as to special charges and fixes the amount of recovery. Georgia R. Co. v. Creety, 5 Ga. App. 424, 63 S. E. 528. Cf. Gerber v. Wabash R. Co., 63 Mo. App. 145. An analogous situation where the state court's jurisdiction is clear arises in suits by the shipper, in which, to avoid the defense of special contract, he relies upon a federal statute forbidding limitation of the carrier's common-law liability. Galveston, H. & S. A. Ry. Co. v. Piper Co., 52 Tex. Civ. App. 558, 115 S. W. 107; Fry v. Southern Pacific Co., 247 Ill. 564, 93 N. E. 906.

LIMITATION OF ACTIONS ACCRUAL OF ACTION - BREACH OF CONTRACT TO MAKE GIFT AT DEATH IN CONSIDERATION OF SERVICES DURING LIFE. The plaintiff promised to take the defendant's testatrix into her house and care for her as long as she lived, and the latter promised to give the plaintiff $70 per month and $20,000 at her death. In 1900 the defendant's testatrix left the plaintiff's house and made a similar agreement with the defendant, with whom she remained till her death in 1907, and to whom she left her property. The plaintiff now brings suit for her legacy and the defendant pleads that the action is barred by the Statute of Limitations. Held, that the plaintiff can recover for the breach of contract by the testatrix. Ga Nun v. Palmer, 46 N. Y. L. J. 257 (N. Y., Ct. App., Oct. 3, 1911).

The decision in this case is reached by applying the doctrine of anticipatory breach, whereby, when one party to a contract repudiates it before the time set for performance, the other may sue immediately or await the time when performance is due. Frost v. Knight, L. R. 7 Exch. 111. See Howard v. Daly, 61 N. Y. 362, 374. It follows that, if the injured party elects not to sue, the Statute of Limitations will not begin to run until the time appointed for performance. Foss-Schneider Brewing Co. v. Bullock, 59 Fed. 83. There is difficulty, however, in applying this reasoning to the principal case, for the breach alleged is not anticipatory. Even where the theory of anticipatory breach is rejected, it is held that when one party by refusing necessary coöperation prevents the other from performing, the injured party can at once sue for the breach of the implied promise not to prevent performance and recover in damages the present value of his entire claim. Edwards v. Slate, 184 Mass. 317, 68 N. E. 342; Parker v. Russell, 133 Mass. 74. The earlier New York decisions recognized this principle and held that the statute began to run immediately. Bonesteel v. Van Etten, 20 Hun (N. Y.) 468; Henry v. Rowell, 31 N. Y. Misc. 384, 64 N. Y. Supp. 488, aff'd in 63 N. Y. App. Div. 620, 71 N. Y. Supp. 1137. Cf. 24 HARV. L. REV. 676.

LIMITATION OF ACTIONS

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- OPERATION AND EFFECT OF BAR BY LIMITATION - RIGHT TO CONTRIBUTION OF CO-OBLIGOR ON NOTE UNDER SEAL. - The plaintiff and the defendant executed a joint note under seal, which the plaintiff paid in full, taking an assignment to himself. Suit was brought for contribution after the period of limitation as to actions on' simple contracts had expired, but before the expiration of the period for actions in equity and on contracts under seal. Held, that the plaintiff's claim is barred. Liverman v. Cahoon, 72 S. E. 327 (N. C.).

The general rule is that a co-obligor who has paid the joint obligation is entitled to be subrogated to all the rights and remedies against the defaulting

co-obligor which the creditor had before payment. Orem v. Wrightson, 51 Md. 34; Smith v. Latimer, 54 Ky. 75. The theory is that even though the obligation is discharged as to the creditor, in equity both it and the securities are regarded as assigned to the paying co-obligor. Lumpkin v. Mills, 4 Ga. 343. See 4 POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 1419. If the doctrine were fully applied in the principal case, since the creditor would not be barred, the plaintiff could recover in equity. See Hull v. Myers, 90 Ga. 674, 684, 16 S. E. 653, 655. But the weight of authority denies subrogation when the sole object of the suit in equity is to avoid the Statute of Limitations. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639; Burrus v. Cook, 215 Mo. 496, 114 S. W. 1065. The claim in the principal case is for contribution only. Chipman v. Morrill, 20 Cal. 131. The statutory period for implied contracts should apply. Johnston v. Belden, 49 Ia. 301. Even though the claim was originally enforceable in equity, the proper construction of the Statute of Limitations would require the suit in equity to be barred when the identical claim is outlawed at law. Junker v. Rush, 136 Ill. 179, 26 N. E. 499. In reality the facts constitute no cause for equitable relief. Sexton v. Sexton, 35 Ind. 88.

MECHANICS' LIENS CONSTITUTIONALITY OF LAW GIVING LIEN IN SPITE OF WAIVER BY PRINCIPAL CONTRACTOR. A statute provided for a lien in favor of sub-contractors and material men, "whether or not the original contractor could have obtained a lien or was by contract or conduct divested of the right to obtain a lien." Held, that this portion of the act is unconstitutional, as a deprivation of property without due process of law. Kelly v. Johnson, 44 Chic. Leg. News 89 (Ill., Sup. Ct.). See NOTES, p. 274.

MORTGAGES - EQUITABLE MORTGAGES WHETHER AFTER-ACQUIRED PROPERTY CLAUSE INCLUDES PROPERTY ACQUIRED BY A COMPANY INTO WHICH MORTGAGOR HAS MERGED. A railroad company mortgaged to its bondholders all its property, including that which should be thereafter acquired by the company to replace worn-out equipment. The company merged with another, and the consolidated company bought a freight car to replace an old one. The mortgage was foreclosed and the property sold to the plaintiff. Held, that the new freight car was properly included in the sale. National Bank of Wilmington & Brandywine v. Wilmington, N. C. & S. Ry. Co., 81 Atl. 70 (Del., Ct. Ch.).

The doctrine of Holroyd v. Marshall seems to proceed upon the ground that a contract to mortgage after-acquired property is specifically enforceable in equity when the property is acquired. See 19 HARV. L. REV. 557. A consolidated company necessarily assumes the contract liabilities of all of its constituent corporations. DEL. LAWS, 1901-03, c. 394, § 60. But if the contract only included property to be acquired by the mortgagor, no statute could extend it to that acquired by the consolidated company, which is a distinct legal entity. Shields v. Ohio, 95 U. S. 319. As a question of construction, however, a reference to the mortgagor may perhaps include the new corporation, popularly regarded as the old company in a new form. This ambiguity would not exist as to a vendee of the mortgagor. Hinchman v. Point Defiance Ry. Co., 14 Wash. 349, 44 Pac. 867. But in the principal case the court may fairly approximate the intentions of the party from all the circumstances of the mortgage, and the result reached seems in accord with justice. Cf. Hamlin v. Jerrard, 72 Me. 62. Contra, New York Security & Trust Co. v. Louisville, etc. R. Co., 102 Fed. 382, 398. A different result should be reached if the terms as applied to the consolidated company created a greater liability than that contemplated for the mortgagor. Cf. Pullman's Palace Car Co. v. Missouri Pacific Ry. Co., 115 U. S. 587, 6 Sup. Ct. 194; Chicago, etc. Ry. Co. v. Kansas City, etc. R. Co., 38 Fed. 58.

PARENT AND CHILD WHETHER MARRIAGE OF INFANT EMANCIPATES HIM, - Two minors above the age of consent married. The wife obtained a divorce and a decree for temporary alimony. The defendant had no property, and his father received his wages and services. Held, that he is not in contempt for failure to pay the alimony. Austin v. Austin, 132 N. W. 495 (Mich.).

By the great weight of authority the lawful marriage of an infant, whether with or without the parent's consent, entitles the infant to his earnings for the support of his family. Commonwealth v. Graham, 157 Mass. 73, 31 N. E. 706; Aldrich v. Bennett, 63 N. H. 415. Contra, White v. Henry, 24 Me. 531. The highest considerations of public policy demand that this be so. In allowing infants to contract a new relationship, the obligations of which are inconsistent with those of a child toward its parent, the law should sever the latter so that the infant wife may enjoy the companionship and protection of her husband, and the infant husband may apply his earnings to the maintenance of his new family. The principal case, decided on the ground that marriage alone does not emancipate a male minor, would therefore seem to be opposed to authority and wrong on principle. However, it follows the established rule of its jurisdiction. People v. Todd, 61 Mich. 234, 28 N. W. 79.

PRESCRIPTION PROFIT À PRENDRE — ACQUIREMENT BY THE PUBLIC OF RIGHT OF FISHING IN PRIVATE WATERS ACQUIREMENT BY FREEHOLD INHABITANTS OF RIGHT OF FISHING IN PRIVATE WATERS. The plaintiff claimed the exclusive right of fishing in a large navigable but non-tidal lake, through grants by the Crown in 1605 and certain evidence of possession at various times thereafter. The public had for centuries openly, as of right, and without interruption, fished in the lake. Held, that the plaintiff is entitled to an injunction restraining one of the public from fishing. Johnston v. O'Neill, [1911] A. C. 552.

Riparian proprietors along a navigable but non-tidal river claimed the exclusive right of fishing therein. Freeholders in certain parishes along the river had for centuries, openly, continuously, and as of right, fished in the river for commercial purposes. Held, that the riparian proprietors have the exclusive right claimed. Harris v. Earl of Chesterfield, [1911] A. C. 623. See NOTES, p. 280.

PUBLIC SERVICE COMPANIES RIGHTS AND DUTIES DISCRIMINATION IN RAILROAD RATES FOR SUBURBAN SERVICE. An electric railway company for seven years maintained exceptionally low rates, which resulted in the growth of a large suburban population composed of those employed in neighboring cities. Thereafter a general advance in rates made it impossible for most of these people to afford the daily trip and they were moving back to the cities in large numbers. On a complaint made against the advance, the state railroad commission ordered the restoration of the old rates within a ten-mile zone. These rates were shown to be unremunerative beyond covering the cost of the service, but it appeared that through the advanced rates allowed to remain upon the balance of the company's traffic, it was able to earn a profit of seven per cent upon its total capitalization. The company appealed from the order of the commission. Held, that the order be sustained. Puget Sound Electric Ry. v. Railroad Commission, 117 Pac. 739 (Wash.). See NOTES, p. 276.

RECEIVERS ANCILLARY APPOINTMENT OF RECEIVERS IN FEDERAL COURTS. Receivers were properly appointed for a company in the Federal Circuit Court of Delaware. They filed an ex parte bill, which was granted, in an Illinois Circuit Court to confirm their previous appointment, and, as ancillary to that appointment, appoint them receivers in that district. The bill prayed

for no distinct equitable relief. Held, that this proceeding does not invest these foreign receivers with powers to sue in Illinois. Fairview Fluor Spar & Lead Co. v. Ulrich, 44 Chic. Leg. News 81 (C. C. A., Seventh Circ.). See NOTES, p. 282.

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RIGHT OF SUPPORT - DRAINAGE OF PERCOLATING WATERS. The defendant, while draining its land, withdrew water from the subterranean soil of the plaintiff's adjoining land. This caused a consolidation of the earth and a settlement of the surface, to the damage of the plaintiff. Held, that the plaintiff New York, etc. Filtration Co. v. Jones, 39 Wash. L. R. 718

cannot recover.

(D. C., Ct. App.). This case seems to be the first American decision on the subject. It follows the well-settled English rule that the right of lateral support of an adjoining landowner is subordinate to one's own right of intercepting percolating waters. Popplewell v. Hodkinson, L. R. 4 Exch. 248; North-Eastern Ry. Co. v. Elliot, 1 Johns. & H. 145. The reason for this doctrine is that otherwise there would be a tendency to restrict the improvement of land for engineering, agricultural, and similar purposes. See 20 HARV. L. REV. 487.

TORTS - INTERFERENCE WITH BUSINESS OR OCCUPATION COMPETITION BETWEEN WHOLESALER AND RETAILER. The defendant, a wholesaler of oil, when the plaintiff, a retailer, began purchasing of other wholesalers, entered into the retail business to drive the plaintiff from business, and by means which involved trespasses and fraud ruined the plaintiff's business. The defendant then retired from the retail business. Held, that the plaintiff has a cause of action against the defendant. Dunshee v. Standard Oil Co., 132 N. W. 371 (Ia.).

Modern authority holds an intentional interference with the plaintiff's business an actionable wrong which calls for justification. Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230. See Mogul Steamship Co. v. McGregor, Gow & Co., 23 Q. B. D. 598, 613. If the defendant is directly or indirectly a real business competitor of the plaintiff, he is justified, unless methods unlawful per se are used. Robison v. Texas Pine Land Association, 40 S. W. 843 (Tex.). Cutting prices is not a method of business which of itself will destroy the justification of competition. Passaic Print Works v. Ely & Walker Dry Goods Co., 105 Fed. 163; Mogul Steamship Co. v. McGregor, Gow & Co., supra. The principal case professes to follow a case holding a banker liable for setting up a barber shop, not for profit, but solely to injure the plaintiff's business. Tuttle v. Buck, 107 Minn. 145, 119 N. W. 946. See 22 HARV. L. REV. 616. But in that case there was no competition between the parties, and hence no justification. There are competitive interests which justify a retailer's attempt to control the business policy of a wholesaler of the same commodity. Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119. The same interests would seem to justify a wholesaler's attempt to control the business policy of a retailer. The actual decision of the principal case is correct, since fraud and trespass are means which are unlawful per se, and hence destroy the justification of competition. American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85. It was unnecessary, therefore, for the court to take the ground that the purpose of the defendant itself destroyed that defense. Cf. Dunshee v. Standard Oil Co., 126 N. W. 342 (Ia.).

TRUSTS CREATION AND VALIDITY BEQUEST UPON SECRET UNDERSTANDING. - A woman who desired to leave her property to certain charities was warned by her solicitor that such a bequest would be void under the local mortmain statute. She therefore made an absolute bequest to a trust company of which the solicitor was an assistant trust officer. Held, that there is a trust for charity rendering the gift void. In re Stirk's Estate, 81 Atl. 187 (Pa.).

Where a testator makes an absolute gift with the understanding that the donee shall transfer the property received to a third party, the donee will be made to hold as trustee for that third party. Hoge v. Hoge, 1 Watts (Pa.) 163. These trusts are imposed on the ground that it would be fraud for the donee to take absolutely, knowing that he is only meant to take for another's benefit. See Matter of O'Hara, 95 N. Y. 403, 413. If there is actual communication of the testator's wishes to the donee, the courts hold that his silence amounts to a consent to a trust. See Trustees of Amherst College v. Ritch, 151 N. Y. 282, 324, 45 N. E. 876, 887. More accurately, he is bound whether he consents or not. But to impose a trust some connection previous to the testator's death must be established between the donee to be charged and the testator's intentions. Wallgrave v. Tebbs, 2 Kay & J. 313; Schultz's Appeal, 80 Pa. St. 396. In the principal case this must rest entirely upon the relation of the solicitor to the trust company. Moreover, it is somewhat difficult to work out an intent of the testatrix to impose a trust, in the absence of which there could be no trust. Lomax v. Ripley, 3 Smale & G. 48.

WATERS AND WATERCOURSES SURFACE WATERS - RIGHT TO FACILITATE DRAINAGE. - A valley draining the surface water in boggy soil ran through two adjoining farms. The owner of the upper farm constructed a system of drains in his part of the valley which temporarily increased the amount of water discharged upon the lower farm, but did not divert the direction of flow. Held, that the lower owner is not entitled to an injunction. Perry v. Clark, 132 N. W. 388 (Neb.).

The civil-law rule that the lower estate must receive the natural flow of surface water obtains in many jurisdictions. Pinkstaff v. Steffy, 216 Ill. 406, 75 N. E. 163. See Central of Georgia Ry. Co. v. Keyton, 148 Ala. 675, 41 So. 918, 921. Under this rule, diversion or unnatural increase of the flow is actionable. Rhoads v. Davidheiser, 133 Pa. St. 226, 19 Atl. 400. Cf. Livingston v. McDonald, 21 Ia. 160. But it has been expressly held that this does not apply where the change results from improvements in city lots. Hall v. Rising, 141 Ala. 431, 37 So. 586. See Los Angeles Cemetery Association v. City of Los Angeles, 103 Cal. 461, 467, 37 Pac. 375, 377. But see Garland v. Aurin, 103 Tenn. 555, 561, 53 S. W. 940, 941. And there is a tendency to subordinate the rule to the interest of good husbandry by allowing reasonable changes in the drainage. Fenton & Thompson R. Co. v. Adams, 221 Ill. 201, 77 N. E. 531. Other jurisdictions accept the common-law doctrine that surface water is a common enemy, against which anyone may defend himself. Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593; Cass v. Dicks, 14 Wash. 75, 44 Pac. 113. This is the rule in the jurisdiction of the principal case. Morrissey v. Chicago, Burlington & Quincy R. Co., 38 Neb. 406, 56 N. W. 946. This right usually affords ample protection against interference with the flow, and no action is allowed therefor. Gannon v. Hargadon, 10 All. (Mass.) 106; Manteufel v. Wetzel, 133 Wis. 619, 114 N. W. 91. Some jurisdictions qualify this right by allowing an action where the interference is unnecessary or negligent. Brown v. Winona & Southwestern R. Co., 53 Minn. 259, 55 N. W. 123. See Aldritt v. Fleischauer, 74 Neb. 66, 70, 103 N. W. 1084, 1085. Since in the principal case the drains were beneficial, and there was no diversion, and the increase was only temporary, the decision is clearly right.