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 TORT LIABILITY GOVERNMENTAL FUNCTIONS - 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 RUNWHETHER 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 dowr 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. Kearsey, 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 public policy by the beneficiary have been held void. Morley v. Renoldson, 2 Hare 570; In re Morgan, 26 T. L. R. 398; Matter of Anonymous, 80 N. Y. Misc. 10, 141 N. Y. Supp. 700. The ground taken by the court in the principal case is that though the condition might be void if it were to be performed by the beneficiary, as it is to be performed by a third party, the father, and requires no illegal act by the beneficiary, it is binding. But whether a condition is void or not must depend on whether it has a sufficiently strong tendency to cause an act contrary to public policy. Daboll v. Moon, 88 Conn. 387, 91 Atl. 646; Matter of Seaman, 218 N. Y. 77. On principle it would seem immaterial whether the act is to be done by the beneficiary or a third person. In re Sandbrook, [1912] 2 Ch. 471. The more difficult question arises: is the act of giving up all control over a son against public policy? An earlier English case has so held. In re Sandbrook, supra. And contracts to give up such control have been held voidable and not binding on the parent. Queen v. Barnardo, 23 Q. B. D. 305; Swift v. Swift, 12 L. T. R. 435, 34 Beav. 266; Matter of Scarritt, 76 Mo. 565. But it would seem as if the public policy involved must rest on the facts of each case in some instances the separation of father and son must be distinctly beneficial. UNINCORPORATED SOCIETIES TRADE UNIONS - SHERMAN ANTI-TRUST LAW. An action for treble damages under the Sherman Anti-trust Law was brought by the receiver of nine coal mining companies against an unincorporated labor union in the name of the union. Held, that the action lies. Dowd v. United Mine Workers of America, 235 Fed. 1. For a discussion of this case, see NOTES, p. 263. WATER LAW EASEMENTS ON RUNNING WATER EFFECT OF A CONTRACT INDEFINITE AS TO TIME. - In return for an easement for its pipes in the railroad company's right of way a water company bound itself to supply water from a station hydrant free of charge for an indefinite period. The water company later refused to supply this water. The railroad sues to have its rights declared. Held, that the contract created a servitude upon the pipe line and water system. Southern Pacific Co. v. Spring Valley Water Co., 159 Pac. 865 (Cal.) It was the general theory of the common law that running water in its natural state was incapable of classification as property. 2 BLACK. COMM. 18. So, when diverted into an artificial container, and subjected to property classification, water would seem to fall under the head of personalty. People ex rel. Heyneman v. Blake, 19 Cal. 579; Bear Lake Co. v. Ogden, 8 Utah 494; Hagerman, etc. Co. v. McMurray, 113 Pac. 823 (N. M.); Chockalingani Pillai, 2 Mad. W. N. 219 (India). See I WIEL, WATER Rights in the Western States, 3 ed., § 35. But the irrigation laws of certain of the western states grew up from a customary usage between irrigators and distributing companies, according to which it was conceived that the irrigator was the real appropriator from the natural stream at the head of the system, and that he had an estate, servitude, or easement in the water system itself. Wheeler v. Northern Colorado Irrigation Co., 10 Colo. 582, 17 Pac. 317. The adoption of this rule, known as the Colorado rule, necessarily rejected the common law position. So, in the case which adopted the Colorado rule in California, the dictum that water in a pipe is personalty was observed and denied. Stanislaus Water Co. v. Bachman, 152 Cal. 716, 726, 93 Pac. 858, 862. A later case declared that the Colorado rule was unconstitutional under the California constitution. Leavitt v. Lassen Irrigation Co., 157 Cal. 82, 106 Pac. 404. v. Stanislaus Co., 34 Sup. Ct. Rep. 652. running water which had been adopted to held even when the reason for it was gone. See San Joaquin, etc. Irrigation Co. |