surance Co. v. Colt, 20 Wall. 560. It follows then that limitations upon the agent's powers contained in the policy cannot affect a contract previously entered into by the insured without knowledge of such limitations. Lightbody v. Insurance Co., 23 Wend. (N. Y.) 18. Moreover if the policy is merely a reduction into written form of a valid oral contract previously made by the agent of the insurer, any misdescription of the terms of that contract, whether occurring through the mistake or fraud of the agent, will be rectified by a court of equity, and the insured may then recover upon the policy as amended. Barnes v. Insurance Co., 75 Ia. 11. Most of the courts however have gone further, and in cases like that under consideration have allowed the insured to recover in an action at law upon the policy, holding the insurer estopped to set up in defence the stipulation avoiding liability. Robbins v. Insurance Co., 149 N. Y. 477. The theory upon which an estoppel is raised would seem to be that the insurer through its agent has represented to the insured that the policy embodies their oral contract, and the insured relying upon that representation has paid his premium. This view raises the question whether the insured is justified in relying upon such a representation, a question admitting of a difference of opinion. The numerous and complicated provisions of such policies, the inexperience of the insured with legal forms, and the general custom to lay aside such papers without careful perusal, present an argument in support of the doctrine. On the other hand the danger of abuse and fraud and the prevalence of statutory forms of policies would tend towards the stricter rule holding the insured to constructive knowledge of the contents of these documents, and compelling him to first seek their reformation if he desires to escape their provisions. While the latter view would support the conclusion of the court in the principal case it is unfortunately not suggested. The force of the reasoning is weakened by the failure to distinguish between the policy as the contract of insurance, and as evidence of that contract, and between the rights of the insured before and after knowledge of the limitations upon the powers of the insurer's agent has been brought home to him.

THE MISSTATEMENT OF CONSIDERATION IN A DEED AS A BASIS FOR AN ACTION OF DECEIT. · At the present day the statement of consideration in a deed is not, so far as its accuracy is concerned, material. The fact that it is often, if not generally, grossly understated and that the public has learned to place no reliance on its truth has apparently led several courts into deciding that a false averment of consideration alone cannot give rise to an action of deceit. Thorp v. Smith, 51 Pac. Rep. 381 (Wash.); Leonard v. Springer, 34 Chic. Leg. News 121 (Ill.). In the latter case the defendant having only a lease of a building purported to convey the fee in consideration of $100,000; and procured his grantee to execute a deed of trust to secure an issue of notes. The plaintiff declared that she had purchased one of the notes relying on the aver ment of the consideration and had been damaged in consequence. The defendant demurred; and the demurrer was sustained on the ground that the public is not intended to rely on such statements.

It is hard to see how the case can be sustained. The declaration avers that the defendant made a statement knowing it to be false, that the plaintiff relied on it and was thereby damaged, and that the defend

ant intended the result. The defence that the false statement was of an immaterial fact should not be valid, for while the amount of the consideration in most conveyances is of no moment, yet when an investment of money on the security of the land conveyed is thereby induced, the statement becomes distinctly material. See Belcher v. Costello, 122 Mass. 189. Though it is in general true that no one relies on the statements of the price paid, yet here the plaintiff did rely on it: and there is little force in the assertion that because most people are not misled, therefore one who is misled shall be barred from redress. In every case it remains a question of fact whether or not the plaintiff was actually deceived. Nor is it a valid excuse that the plaintiff was negligent in not examining the title to the property for herself. The damage was intentionally inflicted, and contributory negligence is no defence to an intentional tort. Cottrill v. Krum, 100 Mo. 397. In apparent contradiction are the many cases of "seller's talk." But it is conceived that these are to be distinguished as cases in which the plaintiff did not in fact rely and was not intended to rely on the statements made. One ground adopted in the principal case was that no representation was made by the defendant to the plaintiff. The law seems settled however, that if a representation be made to a class, or with intent to deceive a class, of which the plaintiff is one, no direct personal communication is necessary. Bedford v. Bagshaw, 4 H. & N. 538. It seems, upon analysis, that the decisions similar to that of the principal case are based upon remoteness. The injury is considered as not a natural and probable result of the defendant's act. Undoubtedly this argument appears sound to all who are familiar with the absolute meaninglessness of statements of consideration in conveyances. But here the statements were inserted purely to deceive. The result was intended; and the principle that an improbable consequence, if intended and desired has the same legal effect as though it had been the natural and probable one, is eminently applicable. See JAGGARD, TORTS, 382; POLLOCK, TORTS, 2d ed., 28.

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MEASURE OF DAMAGES FOR INTERRUPTION OF A WATER RIGHT. - A case recently decided in Wisconsin, gives rise to some interesting considerations in the law of damages. The plaintiff was entitled to the use of the water power at a dam and the defendant appropriated it during a considerable period. Though the plaintiff suffered no actual damage he was allowed to recover, in an action of tort, the fair market value of the water during the period that the defendant had used it. Green Bay, etc., Canal Co. v. Kaukaunee Water Power Co., 87 N. W. Rep. 864.

At first sight it would seem that the plaintiff should recover, in a tort action for the interruption of an incorporeal right, only for the damage. he has suffered; that is, a nominal amount to establish his right, but no more unless he has sustained actual loss. In awarding damages, however, the generally acknowledged purpose is compensation, that is to restore to the plaintiff an equivalent for being deprived of some right. See SEDG., DAM., 8th ed., § 29 et seq. In whatever form the action be brought, it is believed this principle will apply. So in contract and trover the plaintiff is compensated for the right to certain property which the defendant has kept or taken from him, in personal actions of tort it is for the right to good health or reputation. În actions for interference with real pro

perty, whether the plaintiff has had property injured or has been merely kept from the enjoyment of that to which he was entitled, in these, as in other cases, he should recover for the right of which he has been deprived.

The question thus becomes, how shall the value of the right, for which compensation must be made, be estimated? It seems general law that the plaintiff should recover for the fair value of that right, irrespective of whether or no he desired to exercise it. On the one hand he cannot recover an extra amount because of any peculiar value he attached to the right in question. Moseley v. Anderson, 40 Miss. 49. On the other he is not deprived of compensation to its full value because he was not about to make full use of it. Patterson v. Mississippi Boom Co., 98 U. S. 403. The defendant cannot mitigate his liability to pay for the value of the right of which he has deprived the plaintiff by showing that owing to the plaintiff's peculiar situation the actual effect upon him was small. See Elmer v. Fessenden, 154 Mass. 427. Storrs v. Los Angelos Traction Co., 66 Pac. Rep. 72 (Cal.). This principle would seem to apply to all classes of cases. See SEDG., DAM., 8th ed., § 2431. Thus in an action for the wrongful uses of a way, damages were assessed, not by the mere actual injury done to the land, but at what would be a reasonable rent for a license; in other words the fair value of the right. Jegon v. Vivian, L. R. 6 Ch. App. 742. So in the principal case it seems just that the defendant should pay for the water he has appropriated. The plaintiff was entitled to its flowage, his right was taken away from him, and according to the general rule the fact that he did not care to use the right in no way affects the determination of its value. Moreover if the defendant had to pay nominal damages only, he would be in a better position as a trespasser than if he had rightfully leased the water right. See De Camp v. Bullard, 159 N. Y. 450. The real injury then, which the plaintiff has suffered is the loss of a right, and his true measure of damages is not merely what that loss has happened to cost him, but its fair market value.

BANKRUPTCY

RECENT CASES.

GENERAL ASSIGNMENT — ALLOWANCE FOR SERVICES OF AsSIGNEE. Held, that an assignee under a general assignment, which was later taken advantage of as an act of bankruptcy, is not entitled to compensation for services rendered prior to the filing of the petition in bank ruptcy. Wilbur v. Watson, 111 Fed. Rep. 493 (Dist. Ct., R. I.).

Under the present Act, general assignments are valid unless followed by bankruptcy proceedings. In re Romanow, 92 Fed. Rep. 510; In re Sievers, 91 Fed. Rep. 366. The trustee in bankruptcy, however, may avoid the assignment and recover the property. Davis v. Bohle, 92 Fed. Rep. 325. Although not specifically provided for, this result is correct, being clearly within the spirit of the statute. See 13 HARV. L. Rev. 147. The result is reached by treating general assignments as within § 67 e, calling them "constructively fraudulent," being "frauds upon the Bankruptcy Act." In re Gut willig, 92 Fed. Rep. 337; Matter of Gray, 47 N. Y. App. Div. 554. Since they are not wrongful ab initio, and not actually fraudulent, this would seem an unfortunate use of language, which has apparently led the court in the principal case to regard the assignee as a wrongdoer; the allowance being refused because the assignee is regarded as an actor in a fraudulent transaction. The assignee is not one of the creditors of the bankrupt, but since the estate may have received benefit from the assignee's services, the amount of that benefit might well be granted. This was done in In re Scholt

106 Fed. Rep. 834; cf. In re Paul Book Co., 104 Fed. Rep. 786. Such benefit being rare and its amount generally problematical, the principal decision may perhaps be supported on grounds of expediency. There seems to be very little authority on the question.

BILLS AND NOTES-NOTE FILLED IN FOR UNAUTHORIZED AMOUNT-CONSTRUCTION OF “NEGOTIATED" IN BILLS OF EXCHANGE ACT. - The defendant signed a blank form and gave it to A with authority to fill it up as a promissory note for £15. A made the note for £30 payable to the plaintiff, who purchased it in good faith without notice that it had been signed in blank. The Bills of Exchange Act of 1882, § 20, provides that such a note is not enforceable against the maker unless negotiated to a holder in due course." Held, that the plaintiff cannot recover since a note is not "negotiated” by delivery to the payee. Herdman v. Wheeler, 18 T. L. R. 190 (K. B.).

Apart from statute, one who signs and delivers a note with the amount left in blank, is liable to a purchaser for value without notice for the sum inserted, though greater than that authorized. Garrard v. Lewis, 10 Q. B. D. 30; Bank of Pittsburgh v. Neal, 22 How. 96. The payee may be such a bona fide holder just as in all analogous cases where equities exist between the maker and the intermediary. Fullerton v. Sturges, 4 Oh. St. 530; cf. Watson v. Russell, 3 B. & S. 34; see 11 HARV. L. Rev. 473. The construction given the word "negotiated," therefore, works a decided change in the law. The definition of "negotiated" in § 31 lends some color to this interpretation, and there is a dictum in accord. Lewis v. Clay, 67 L. J. Q. B. (n. s.) Even if technically correct this construction seems too narrow to support such an unfortunate result. The payee in the principal case is substantially in the position of a bona fide transferee and should have all the latter's rights. If the same construc tion were applied to § 29, it would seem that a payee could not be a holder in due course, since by implication such holder must receive the instrument by "negotiation." The court's attempt to avoid this difficulty is not satisfactory. If the construction given is necessary, this case brings out a flaw in the English Áct, and in the similar provisions of our own law.

224.

- CARRIERS' CONTRACTS

CONFLICT OF LAWS - PUBLIC POLICY.-A steamer ticket containing stipulations exempting the carrier from liability for losses occasioned by negligence, was bought in Belgium where such stipulations were valid. Held, that the stipulations are unreasonable, and void as against public policy. The Kensington, 22 Sup. Ct. Rep. 102.

In the federal courts and in the majority of the state courts, stipulations on a ticket exempting a carrier from responsibility for negligence are invalid; but in England and on the continent such exemptions are allowed. New York Central R. R. Co. v. Lockwood, 17 Wall. 357; Carr v. Lancashire, etc., Ry. Co., 7 Ex. 707. Cases of trans. atlantic carriage, therefore, frequently raise the question whether contracts of this sort which are valid where made, will be upheld, when they would be void if made in the jurisdiction where enforcement is sought. In previous cases, the United States Supreme Court has expressly left the question open. Liverpool, etc., S. S. Co. v. Phanix Ins. Co., 129 U. S. 397. Several state courts, however, have given an affirmative answer. O'Regan v. Cunard S. S. Co., 160 Mass. 356. The lower federal courts, on the other hand, have almost unanimously adopted the view that is now taken in the principal case. The Glenmavis, 69 Fed. Řep. 472; see The New England, 110 Fed. Rep. 415. The decision of the Supreme Court may be supported upon principle also. Since foreign law is enforced in any case only because the local sovereign is willing, for that case, to accept it as his municipal law, an exception may properly be made in cases where the foreign law conflicts with the public policy of the state in which the cause is heard. See STORY, CONFL. Laws, §§ 38, 244.

CONFLICT OF LAWS EQUITY ENJOINING TRESPASS IN A FOREIGN JURISDICTION. - Held, that equity does not have jurisdiction to enjoin trespass to real estate in a foreign territory, though the parties are before the court. Lindsley v. Union, etc., Co., 66 Pac. Rep. 382 (Wash.).

Equity, acting in personam, frequently enjoins the commission of an act outside the jurisdiction, where the necessary parties are before the court. Cunningham v. Butler, 142 Mass. 47. The principal case, however, is based on the analogy of an almost universal rule of law, that an action will not lie for injuries to foreign real estate. British, etc., Co. v. Companhia de Moçambique, [1893] A. C. 602; contra, Little v. Chicago, etc.

Ry Co., 65 Minn. 48. Having its origin in a distinction between local and transitory actions depending upon venue, as a rule of territorial jurisdiction it seems purely arbitrary. See Whitaker v. Forbes, 1 C. P. D. 51 Indeed there seems to be no satisfactory reason to support it. See Livingston v. Jefferson, 1 Brock. (U. S. Circ. Ct.) 203. There is some authority, with which the principal case is in accord, for applying in equity the rule above stated, on the ground that equity follows the law. Northern Ind. R. R. Co. v. Michigan Central R. R. Co., 15 How. 233. There seems, however, to be as much authority the other way. Alexander v. Tolleston Club, 110 Ill. 65; Great Falls Mfg. Co. v. Worster, 23 N. H. 462. Since the unfortunate result is reached that the plaintiff is greatly hindered in obtaining adequate remedy, it would seem wiser to disregard the common law rule, to which equity is not generally committed, and to grant the relief which equity has power to give.

CONSTITUTIONAL LAW - CARRIERS INTERSTATE COMMERCE - LONG AND SHORT HAUL LEGISLATION BY A STATE. —A state constitutional provision forbids a carrier charging more for a short haul than for a long haul within which the short one is included. Held, that in cases where the long haul is an interstate haul, and the enforcement of the provision would compel the carrier to raise his rate for that haul, the provision is an interference with interstate commerce and not enforceable. Louisville & Nashville R. R. v. Eubank, U. S. Sup. Ct., decided Jan. 27, 1902. See NOTES, p. 570.

Held, that in cases where both hauls are within the state limits, the provision is not in conflict with the federal constitution. Louisville & Nashville R. R. v. Kentucky, 22 Sup. Ct. Rep. 95. See NOTES, p. 570.

REGULATION BY

CONSTITUTIONAL LAW- FOREIGN INSURANCE COMPANIESSTATE STATUTES. - Mass. St. 1894, c. 522, § 98, imposes a fine upon any person acting "in any manner in the negotiation or transaction of unlawful insurance with a foreign insurance company not admitted to do business within the Commonwealth." The defendant was employed as agent in Massachusetts by the owner of Massachusetts property to negotiate insurance thereon outside the state. Held, that the statute, as interpreted to cover the defendant's case, is constitutional. Nutting v. Massachusetts, 22 Sup. Ct. Rep. 238.

The court regards this statute as a legitimate exercise of the state's power to regu late and even to prohibit the transaction of business by foreign insurance companies within its limits. Hooper v. California, 155 U. S. 648. It has been held, however, that this power does not enable the state to forbid contracts of insurance for property within its limits when the contracts are made outside. Allgeyer v. Louisiana, 165 U. S. 578. Such a statute was regarded as violating one of the rights secured by the Fourteenth Amendment, the term "liberty" being interpreted vaguely to include an almost unlimited right to contract. Cf. Butchers' Union, etc., Co. v. Crescent City, etc., Co., 111 U. S. 746, 762. Passing over this doubtful construction, which has been widely adopted, it would nevertheless seem that the legitimate power of a state to protect its citizens against possible insurance frauds, is sufficient to supply the re quisite of "due process" in cases like Allgeyer v. Louisiana, supra. Commonwealth v. Nutting, 175 Mass. 154. It is to be hoped that the decision in the principal case, which sustains the application of the statute to a case in which a very small part of the transaction took place in Massachusetts, marks a tendency to limit as far as possible the effect of Allgeyer v. Louisiana.

CONTRACTS-RESTRAINT OF TRADE-LIMITATION AS TO SPACE. — The vendor of a manufacturing business covenanted not to engage in the same business within the state during a term of years Held, that the contract is void. Union Strawboard Co. v. Bonfield, 61 N. E. Rep. 1038 (Ill., Sup. Ct.).

The principal case defines the position of Illinois upon a growing topic in the law, by establishing as decision what had already been indicated by way of dictum. See Lanzit v. Sefton Mfg. Co., 184 Ill. 326; and see also Lufkin Rule Co. v. Fringeli, 57 Oh. St. 596. The rule thus laid down, forbidding restrictions that apply throughout the jurisdiction, was once law in England, and also prevailed widely in this country. Mitchell v. Reynolds, 1 P. Wms. 181; Taylor v. Blanchard, 13 Allen (Mass.) 370. The present English doctrine, which considers restrictions as to space of importance only in their bearing upon the general question of reasonableness, was established by the decision in Nordenfelt v. Maxim Nordenfelt, etc., Co., [1894] A. C. 535. Accord ingly, restrictions covering the whole of England have been enforced. Underwood v.