sary culpability may be drawn from a closer analysis of the intent here presented. In fact the intent is twofold - being primarily to publish the letter to the friend, and secondarily to injure the plaintiff by publishing the libel. If the letter had been sent to one newspaper, and it were intercepted and published by another, surely the main intent being to publish, and the method of publication secondary, culpability would ensue. Whether, in the principal case, the secondary intent to injure by the publication is sufficiently strong to create liability, is a question of degree. Cf. Fox v. Broderick, 14 Ir. C. L. Rep. 453.

LIBEL AND SLANDER - ACTS AND WORDS ACTIONABLE SENDING CARD OF RIVAL UNDERTAKER TO FAMILIES IN WHICH THERE IS SERIOUS ILLNESS. - Hughes and the defendant were rivals in the undertaking business, having no other local competitors. The defendant printed and sent to families in which there was at the time serious illness the following card: "Bear in mind our Undertaking Department. Satisfaction guaranteed. [Signed] H. L. Hughes." Hughes sues for libel. Held, that defendant's demurrer be overruled. Hughes v. Samuels Bros., 159 N. W. 589 (Ia.).

The written statement in this unique case, plus its necessary implications, amounts to this: "I, [the plaintiff], solicit your business by this card." Such a statement is certainly untrue, and is made with malice; but it apparently does not come within the generally accepted limits of libelous words, since, taken by itself, it can injure neither the plaintiff's reputation nor his business. See ODGERS, LIBEL AND SLANDER, 5 ed., 2. It becomes libelous, however, because of an extrinsic circumstance, the time at which it is published. But any statement must need extrinsic circumstances to become a libel. An accusation of theft, for instance, is libelous only because of that extrinsic circumstance, the institution of private property. Accordingly it is submitted that what extrinsic circumstances are incorporated into a written statement is merely a question of degree, and that the statement in the principal case is rightly held libelous. Morrison v. Ritchie & Co., [1902] 4 Sc. Sess. Cas. 645. Cf. Rocky Mountain News Printing Co. v. Fridborn, 46 Colo. 440, 104 Pac. 956; Fitzpatrick v. Age-Herald Pub. Co., 184 Ala. 510, 63 So. 980; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 220, 50 S. E. 68, 81. In the principal case the court rests the decision upon the broad principle that to injure another intentionally without justification is a tort, and, where the instrument of injury is the publication of written words, a libel. Thus the law of libel is at once rationalized and made an integrated part of our modern law of torts. See 29 HARV. L. REV. 559. The principal case is perhaps the first to announce such a doctrine of libel, formerly only an action on the case having been_allowed for such torts as these. ODGERS, LIBEL AND SLANDER, 5 ed., 77 et seq. But whether or not the case is properly called one of libel, recovery is justified. For there is certainly intended injury, justified if at all by competition; and competition by means of telling lies is hardly to be protected.

MARRIAGE-NULLIFICATION RIGHT TO DISCONTINUE ACTION FOR ANNULMENT. A husband brought a bill for the annulment of his marriage. Subsequently he moves for leave to discontinue the action. Held, that the motion be denied. Ginther v. Ginther, 56 N. Y. L. J. 132 (Sup. Ct., App. Div.).

A suitor has a right before the final decision to discontinue any action or proceeding instituted by him, if no rights have accrued to others. In re Butler, IOI N. Y. 307, 4 N. E. 518. But where there is a public interest in the correct adjudication of the controversy the court may refuse to allow leave to abandon the action. So one who contests an election is refused permission to discontinue his contest. Miles v. Macon, 188 S. W. 313 (Mo.). See 24 HARV. L. REV. 673. In divorce suits the rights of the parties to the record are not alone to be con

sidered; the public also has an interest in seeing that no divorce shall be granted without proper cause. Murphy v. Murphy, 8 Phila. (Pa.) 357; 2 BISHOP, MARRIAGE & DIVORCE, § 230. So a divorce will not be granted on failure of the defendant to appear, or on admissions in his pleadings, unless the plaintiff's charges are sustained by proof. Hill v. Hill, 24 Ore. 416, 33 Pac. 809; Ivison v. Ivison, 29 Misc. 240, 61 N. Y. Supp. 118. But, since public policy requires the quiet and peaceable termination of marital strife, ordinarily the plaintiff is entitled to discontinue such a suit. Moore v. Moore, 22 N. Y. Supp. 451; Stover v. Stover, 7 Idaho 185, 61 Pac. 462; Ashmead v. Ashmead, 23 Kan. 262. Where, however, in divorce suits the validity of the marriage, and hence the legitimacy of the issue and the status of subsequent marriages, is involved, there is a strong public interest in the correct adjudication of the matter; and courts do not allow as a matter of course dismissal of the bill. Winans v. Winans, 124 N. Y. 140, 26 N. E. 293; Winston v. Winston, 21 App. Div. 371, 47 N. Y. Supp. 399. The situation ordinarily presented by suits for annulment is the same; and the court should, as the principal case holds, be able within its discretion to refuse leave to discontinue.

MECHANICS' LIENS · PRIORITY OVER MORTGAGES FOR PURCHASE MONEY TO PERSONS OTHER THAN THE GRANTOR. - A development company agreed by parol with a stockholder to convey a lot to him on consideration of the erection of a house thereon. The stockholder made a written contract with one Pettit to sell him the land, and Pettit agreed to build the house. When it was partially erected, the stockholder procured a conveyance from the company to Pettit, and the latter executed mortgages to the stockholder as security for the price agreed. Material furnished and labor performed in the construction of the house, chiefly prior to this time, not having been paid for, mechanics' liens were claimed. Held, that the liens take priority over the mortgages. Everest v. Gault Lumber Co., 159 Pac. 910 (Okla.).

A mechanics' lien can only accrue against the owner of some interest in the property, legal or equitable. Since the agreement between the company and the stockholder was by parol, no equitable title passed to the latter, prior to the completion of the work agreed to. Botsford v. New Haven, etc. R. Co., 41 Conn. 454. None could therefore pass to the sub-vendee. Now it is generally held that if a possessor having made improvements, later acquires title, the liens attach to the subsequently acquired interest. Courtemanche v. Blackstone, etc. Ry. Co., 170 Mass. 50, 48 N. E. 937; Weaver v. Sheeler, 124 Pa. St. 473, 17 Atl. 17. But although the liens may thus relate back, they cannot actually accrue previous to the time when title is received. In the principal case, the passing of title and the giving of the mortgages were simultaneous acts. Under such circumstances a purchase-money mortgage generally takes priority over liens arising out of improvements made by the possessor. Rochford v. Rochford, 188 Mass. 108, 74 N. E. 299; Moody v. Tschabold, 52 Minn. 51, 53 N. W. 1023. But where the mortgagee is a person other than the grantor it would seem on principle that the liens should prevail. For the legal title must pass through the grantee-mortgagor, at least momentarily, in order to reach the mortgagee. In this brief passage the liens could attach. It has been held otherwise, however, so far as the mortgage is for an advance of purchase-money, on the theory that the mortgagor in substance never held more than the equity of redemption. New Jersey, etc. Co. v. Bachelor, 54 N. J. Eq. 600, 35 Atl. 745; Campbell & Pharo's Appeal, 36 Pa. St. 247. But the mortgagee cannot be preferred unless the interest of the grantor was free of the liens prior to the conveyance to the mortgagor. McCausland v. West Duluth Land Co., 51 Minn. 246, 53 N. W. 464. Here the express stipulation of the grantor company that the work be done before it would convey, subjected its interest to the lien of the work when done. Hill v. Gill, 40 Minn. 441, 42 N. W. 294; Paulsen v. Manske, 126 Ill. 72, 18

N. E. 275. The shareholder therefore has no preference upon his mortgages. His interest, if any, as an unpaid vendor, independent of the mortgages, is subject to the liens for the same reason. Bohn Manufacturing Co. v. Kountze, 30 Neb. 719, 46 N. W. 1123; Lee v. Gibson, 104 Tenn. 698, 58 S. W. 330.

MUNICIPAL CORPORATIONS

TIONS

- PUBLIC ZOO. - While leaning against a coyote cage located in a park maintained by the defendant city, the plaintiff, a child of four years, was bitten and scratched by the coyote. Plaintiff sues. Held, that she may not recover. Hibbard v. City of Wichita, 159 Pac. 399 (Kan.).

For discussion of this case, see NOTES, p. 270.

PLEADING AMENDMENT OF DECLARATION AFTER STATUTE HAS RUN WHETHER AN AMENDMENT FROM COMMON LAW ACTION TO STATUTORY ACTION ON THE SAME FACTS IS PERMISSIBLE. While performing his duties, an employee was injured by a crank shaft. A statute required shafting in factories to be guarded and took away certain defenses. But the employee sued his employer for common law negligence and did not plead sufficient facts to take advantage of the statute. At the trial he sought leave to amend his statement of claim, so as to sue on the statute. In the meantime the statute of limitations had run on the case. The trial court refused leave to amend. Held, that this was not error. Card v. Stowers Pork Packing & Provision Co., 98 Atl. 728 (Pa.). While it is true that the modern tendency is to allow great freedom in the amendment of pleadings, yet courts still refuse to allow amendments introducing new causes of actions. Church v. Boylston & Woodbury Café Co., 218 Mass. 231, 105 N. E. 883. Especially is this so when the statute of limitations has run. Union Pacific R. Co. v. Wyler, 158 U. S. 285. Contra, Rowell v. Moeller, 91 Hun 421, 36 N. Y. Supp. 223. Cf. Philadelphia, etc. R. Co. v. Gatta, 4 Boyce (Del.) 38, 85 Atl. 721. But some jurisdictions allow them, subject to attack by demurrer or plea. Williams v. Lowe, 49 Ind. App. 606, 97 N. E. 809; Atchison, etc. R. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093. The question apparently presented therefore seems to be, What constitutes a new cause of action? There is much authority which accords with the principal case, in considering an action pleaded upon statutory negligence as a different cause from one pleaded on the same facts at common law. City of Kansas City v. Hart, 60 Kan. 684, 57 Pac. 938; Despeaux v. Pennsylvania, etc. R. Co., 133 Fed. 1009. Technically such view is correct. But if strictly adhered to it would prevent all amendments after the statute had run. For a defective cause of action is no cause of action, and an amendment correcting the defect must therefore be stating a new cause of action. It would seem as if the purpose of the statute were complied with and equity done, if the test were simply, Do the facts as originally stated sufficiently identify the transaction sued for to give the defendant warning? Cf. Miller v. Erie R. Co., 109 App. Div. 612, 96 N. Y. Supp. 244. So a number of cases approximating the principal case have allowed the amendment. Vickery v. New London North R. Co., 87 Conn. 634, 89 Atl. 277, 279; Miller v. Erie R. Co., supra; Oulitic Stone Co. of Indiana v. Ridge, 174 Ind. 558, 91 N. E. 944. This liberal tendency is further indicated in a holding that amendments from the law of one jurisdiction to that of another are to be allowed after the statutory period. Missouri, etc. Ry. Co. v. Wulf, 226 U. S. 570.

RULE AGAINST PERPETUITIES - LIMITATIONS OF THE RULE AGAINST A "POSSIBILITY ON A POSSIBILITY." - A testator devised lands in trust for his son Thomas, a bachelor, for life; with a remainder for life to any woman whom Thomas might marry; remainder in fee to the children of Thomas at twenty-one, or in default of such children, to the other children of the testator.

The trustees were directed to sell the land at the death of the survivor of Thomas and his wife. Thomas and his wife died without issue. An originating summons is taken out to determine whether the remainder to the testator's children is valid, and whether the direction to sell worked a conversion of the property. Held, that the remainder is valid and the direction to sell void. In re Garnham, 115 L. T. R. 148 (Ch. D.).

The modern Rule against Perpetuities requires that an estate must be such as to certainly vest within twenty-one years plus the period of gestation after the death of a person living at the time a gift is made. The vesting of the estate within the period, not the coming into possession is what is required. Murray v. Addenbrook, 4 Russ. 407, 418. See GRAY, RULE AGAINST PERPETUITIES, 3 ed., § 205. Also the period of gestation is allowed by the Rule in addition to the twenty-one years. See LEWIS, LAW OF PERPETUITY, 147. Hence in the principal case neither the remainder to the children of Thomas nor the gift over to the children of the testator are barred by the Rule. But a long line of cases lay down an older and independent rule against "double possibilities." Rector of Chedington's Case, 1 Co. Rep. 373, 382; Whitby v. Mitchell, 44 Ch. D. 85, 90. See J. L. Thorndike "Contingent Remainders," supra, p. 238. It has, indeed, been doubted whether on principle this applies where the modern Ruie against Perpetuities is satisfied. See LEWIS, LAW OF PERPETUITY, 420. At any rate, this older rule seems to be clearly confined to the case of a gift to a child of an unborn person. In re Nash, [1910] 1 Ch. 1, 9. See Monypenny v. Dering, 2 D. M. & G. 145, 170; WILLIAMs, Real PropeRTY, 21 ed., 413. The mere fact that one parent may be unborn does not bring the case within this older rule, if the parent with reference to whom the child is identified is in being. In re Bullock's Will Trusts, [1915] 1 Ch. 493, 501. In the principal case the remainder is to the children of Thomas, a living person. This remainder, therefore, satisfies the older rule; and consequently there can be no objection to the gift over to the testator's children. But it is otherwise with the direction to sell. Where a power may be exercised at a time beyond the limits of the Rule against Perpetuities, it is void. Hartson v. Elden, 50 N. J. Eq. 522, 526; Johnston's Appeal, 185 Pa. St. 179, 189. See GRAY, RULE AGAINST PERPETUITIES, 2 ed., § 473; LEWIS, LAW OF PERPETUITY, 555. In the principal case the power may be exercised after the death of the wife of Thomas; and she may not be in esse at the time of the gift. The direction to sell, therefore, violates the Rule against Perpetuities, and is void.

SALES - IMPLIED WARRANTY - LIMITATION OF ACTION. The plaintiff purchased from the defendant certain copper wire, ordered by description. In Georgia the statutory period of limitation on implied or oral contracts is four years; that on written contracts, six years. More than four but less than six years after the delivery of the wire the plaintiff brings an action for breach of an implied warranty of quality. Held, that the suit is not barred. John A. Roebling's Sons Co. v. Southern Power Co., 89 S. E. 1075 (Ga.).

The court says that the implied warranty is "written into the contract by the law itself, and . . . is as much a part of the written contract as if expressed therein." Such a statement can only mean that all existing law must be deemed to have been within the contemplation of the parties and so, impliedly, form a part of their written agreement. The decisions of many eminent tribunals voice this conception. See Hutchinson v. Ward, 99 N. Y. Supp. 708, 709; Leiendecker v. Aetna Indemnity Co., 52 Wash. 609, 611, 101 Pac. 219; Edwards v. Kearzey, 96 U. S. 595, 601. Clearly this is a fiction. Nor do the cases support so broad a proposition. The duty to use due care in forwarding goods intrusted to a common carrier, on a contract of shipment beyond the carrier's line, is held to be a separate unwritten promise and not an integral part of the written agreement. Penn. Co. v. Chicago, etc. Ry., 144 Ill. 197, 33 N. E. 415. So,

likewise, is the implied promise to restore upon which the purchaser of land is allowed, upon non-conveyance by the vendor, to recover the price paid, in quasi-contract. Thomas v. Pacific Beach Co., 115 Cal. 136, 46 Pac. 899. Duncan v. Gibson, 17 Utah 209, 53 Pac. 1044. The decisions would seem to draw the line between such implied contracts as those just cited, on the one hand, and all implied warranties, as in the principal case, on the other. Bancroft v. San Francisco Tool Co., 47 Pac. 684 (Cal.); Meade v. Warring, 35 S. W. 308 (Tex. Civ. App.). Such a distinction is hardly satisfactory. The cases of implied warranties, despite the broad language of the opinions, usually involve warranties of goods ordered by description only. The principal case is of this type. Here it may well be argued that a fair interpretation of the language shows that the parties in fact contemplated goods of a fair quality of the description specified, and not any goods of that description. See WILLISTON, SALES, § 230. But when the sale is of a specific chattel, the implied warranty cannot be derived from the terms of the bargain. It is imposed upon the vendor regardless of the intent of the parties by operation of law, and should be subject to any statutory limitations upon unwritten or implied contracts.

SALES STOPPAGE IN TRANSITU SELLER'S LIABILITY FOR FREIGHT. — A vendor sold goods on credit. The purchaser contracted with a shipowner to pay for their transportation. On learning of the purchaser's insolvency, the vendor stopped the goods in transitu, but did not take possession of them. The carrier sues the vendor for the freight. Held, that he may recover. Booth Steamship Co. v. Cargo Fleet Iron Co., [1916] 2 K. B. 570 (Ct. of App.).

In most cases of stoppage in transitu the carrier is amply protected by his lien on the goods. The novel point presented by the principal case can, therefore, only arise when the goods at the point of stoppage are not worth enough to pay the freight. Stoppage in transitu, being a right of purely equitable nature, is not allowed where it would be unfair to the carrier. See WILLISTON, SALES, § 541. In view of this principle, if the right to stop is clearly given the seller, an exercise of the right should obligate him to indemnify the carrier for any loss caused thereby. But the loss occasioned in a case like the principal case would be only the amount which the carrier could recover from the insolvent buyer. Hence this quasi-contractual remedy would not give the carrier the full price of the freight. But the principal case finds full support on another theory. Formerly a stoppage in transitu was effective only if the seller secured actual possession of the goods. See Snee v. Prescott, 1 Atk. 245, 248. The present method, by mere notice, is really a short cut to the same result, for the stoppage gives the seller only a lien, which depends for its effectiveness on his possession. See Newhall v. Vargas, 15 Me. 314. It is not unreasonable, therefore, to imply from the seller's notice to stop a promise by him to take possession of the goods. But in order to obtain possession, the seller must discharge the carrier's lien for freight. Potts v. New York & New England R. Co., 131 Mass. 455; Pennsylvania Steel Co. v. Georgia R., etc. Co., 94 Ga. 636, 21 S. E. 577. It would therefore follow that a promise to discharge the lien is likewise implied in the order.

TRUSTS CREATION AND VALIDITY

CONDITION CONTRARY TO PUBLIC POLICY. A settlor placed certain funds in trust for the plaintiff until he should come of age. The interest on this sum was to be paid for the plaintiff's maintenance. But no interest was to be paid unless the father, in whose custody he then was, should give up all control over him. Plaintiff seeks to have interest paid him while still in his father's control. Held, that the condition is enforceable. Re Borwick's Settlement, 115 L. T. R. 183 (Ch. D.).

As in the case of contracts, conditions in gifts and testamentary dispositions making the effectiveness of the gift dependent on the doing of an act contrary to