102 N. Y. 729, 7 N. E. 822. But what the foreign jurisdiction will recognize as a valid conveyance limits the power of the court of equity. See Waterhouse v. Stansfield, 10 Hare 254, 255. And since in the case of Mexican land the conveyance must be completed by certain registration in Mexico, for a United States court to decree the passing of title, there would involve ordering acts abroad. But even if there were no jurisdictional difficulties in the principal case, the title has been in litigation in Mexico and a receiver put in charge under a law so different from that of California that the practical difficulties would prevent the rendition of a decree affecting the land. Yet the litigation should be entertained where complete justice can best be secured. Harris v. Pullman, 84 Ill. 20. And the court achieved complete justice in the most practical way by ordering the transfer of the stock and avoiding any possible complications involving the rights of Mexico.

ESTOPPEL ESTOPPEL By Deed -LAND MORTGAGED BEFORE ACQUIRED PRIORITY OF MORTGAGE TO JUDGMENT LIEN. A tenant in common, after mortgaging the property as sole owner, acquired the interest of his cotenant. Later, a creditor obtained a judgment against him. Held, that as to the subsequently acquired interest the judgment lien takes priority over the mortgage. Gallagher v. Stern, 95 Atl. 518 (Pa.).

In the United States it is generally held that a warranty deed or mortgage passes, by way of estoppel, any title which the grantor may thereafter acquire. Philly v. Sanders, 11 Oh. St. 490; Jarvis v. Aikens, 25 Vt. 635. Accordingly the grantee prevails against a later purchaser or creditor of the grantor. Jarvis v. Aikens, supra; White v. Patten, 24 Pick. (Mass.) 324; Tefft v. Munson, 57 N. Y. 97. But Pennsylvania and a few other states follow the English view that, although the grantor is estopped by his conveyance, the after-acquired title does not pass. Calder v. Chapman, 52 Pa. St. 359; Burtners v. Keran, 24 Gratt. (Va.) 42, 66. The estoppel is therefore held not to affect the subsequent purchaser or creditor if he had no notice. And the record of any mortgage prior to the conveyance by which the mortgagor took his title is no notice of the encumbrance, since it is outside the chain of title. Dodd v. Williams, 3 Mo. App. 278; Calder v. Chapman, supra. Cf. Bingham v. Kirkland, 34 N. J. Eq. 229. But in the principal case the mortgage was not outside the chain of title, since it was the duty of the title examiner, in his search for liens against the mortgagor, to go back beyond the time when the latter acquired the interest of his co-tenant to the time when he acquired his original interest as tenant in common. Had he done so he would have found the mortgage. Accordingly, he should be charged with constructive notice. Even under the minority view, therefore, the case is unsound.

AGREEMENT BETWEEN TEN

GOOD WILL - RIGHT TO USE FIRM NAME ANTS IN COMMON. A copartnership known as B. & Co. used its name, good will, and trade marks under a rental agreement with B., who owned them but was not a member of the firm. B. bequeathed them in equal shares to his sons C. and D., who entered the firm but retained the name, good will, and trade marks as their separate property. C. and. D. then entered into an agreement providing that upon the death of either, the survivor should have the right to continue the business of B. & Co. and the exclusive right to use the half interest of the other in the firm name, good will, and trade marks, upon payment of one-third of the net profits to the legal representatives of the deceased. C. died, and D. continued the business under the agreement. Later he notified the plaintiff, who was D.'s legal representative, that he would no longer pay her any of the profits, as he was no longer using her half interest. She thereupon brought an action against him. Held, that she is entitled either to onethird of the net profits or to a decree restraining D. from using the name, good

will, and trade marks, and providing for a sale of the same by a receiver for the joint benefit of D. and the plaintiff. Barclay v. Barclay, 155 N. Y. Supp. 221. Ordinarily the name, good will, and trade marks of a partnership are firm assets, which each partner, upon dissolution, is entitled to have converted into cash and included in the firm accounts. Slater v. Slater, 175 N. Y. 143, 67 N. E. 224; Moore v. Rawson, 185 Mass. 264, 70 N. E. 64; Hill v. Fearis, [1995] 1 Ch. 466. Of course this rule may be changed by agreement of the parties. And in many jurisdictions it is held that in the absence of an express agreement to the contrary, each partner, upon dissolution, has an equal right to use the firm name, if he does not thereby expose his former partners to risk of liability. Burchell v. Wilde, [1900] 1 Ch. 551; Young v. Jones, 30 Fed. Cas., No. 18,159. It is recognized, therefore, that such property is, in its nature, susceptible of separate and independent use by each of two coöwners. Merry v. Hoopes, 111 N. Y. 415, 18 N. E. 714. But where the retiring partner retains his interest in the name, giving the other partner merely the right to use it in return for a share of the profits, it is submitted that there is an implied agreement that, so long as the business continues, the retiring partner's interest will be used for his benefit. Such an agreement is specifically enforceable, for the subject-matter is unique and a fiduciary relation is involved. Moreover, since the value of a firm name or a trade mark lies in its connection with the business with which it has been used, it cannot be assigned apart from that business. Thorneloe v. Hill, [1894] 1 Ch. 569. Therefore, as long as D. continued the business of B. & Co., the plaintiff's interest was not restored to her, and she was entitled to compensation.

EXEMPTION

ILLEGAL CONTRACTS · ·CONTRACTS AGAINST PUBLIC POLICY of RAILROADS FROM LIABILITY FOR NEGLIGENT INJURIES TO PULLMAN EmPLOYEES. - A waiter in a Pullman car was killed by the negligence of a railroad. His contract with the Pullman Company contained a provision releasing the railroads from liability for negligent injuries. Suit is brought by his widow under the Colorado Death Statute. Held, that his widow may not recover. Lindsay v. Chicago, B. & Q. R. Co., 226 Fed. 23 (C. C. A., 7th Circ.). For a discussion of this case, see NOTES, p. 435.

INSURANCE - ELECTION AND WAIVER OF CONDITIONS - EFFECT OF FAILURE OF INSURER TO RETURN PREMIUMS ON BREACH OF CONDITION. - The plaintiff, supposing that a house belonged to him, insured it with the defendant company. The policy provided that it should be void if the insured did not own the property in fee, and also provided that if the policy should become void, the premiums should be returned. After a loss, the defendant learned of a defect in the plaintiff's title, but did not return the premium. Held, that the neglect to return the premium was a waiver of the breach of condition, and the defendant was therefore liable. Scott v. Liverpool & London & Globe Ins. 86 S. E. 484 (S. C.).

It is generally recognized that a provision in an insurance policy that under a certain condition it shall be void means only that the insurer will then have the privilege of avoiding the policy. See 2 MAY, INSURANCE, § 497. Nevertheless it has been uniformly held that the insured cannot recover without proving that the insurer by some affirmative action has waived the breach of condition. Ins. Co. v. Wolff, 95 U. S. 326. See Tilus v. Glens Falls Ins. Co., 81 N. Y. 410, 419. Recent authorities have, however, been very liberal in finding such a waiver. Titus v. Glens Falls Ins. Co., supra; Replogle v. American Ins. Co., 132 Ind. 360, 31 N. E. 947. See Ins. Co. v. Eggleston, 96 U. S. 572, 577. The principal case can only be supported on the theory that the insurer has merely an election to avoid the policy, which can only be taken advantage of by promptly displaying an intent to do so. See Provincial Ins. Co. v. Leduc,

6 P. C. 224, 243. This theory, which removes from the insured the burden of proving a waiver, has been ably supported. See J. S. Ewart, "Waiver in Insurance Cases," 18 HARV. L. REV. 364. Its application to a case where the breach of condition occurred, or was first known to the insurer, after the loss, and where there was no possible prejudice to the plaintiff in the defendant's failure to act, is not only novel but against authority. Ætna Ins. Co. v. Mount, 90 Miss. 642, 44 So. 162; Goorberg v. Western Assurance Co., 150 Cal. 510, 89 Pac. 130.

INTERSTATE COMMERCE- CONTROL BY CONGRESS-FEDERAL EMPLOYERS' LIABILITY ACTS - WHETHER STATE COMPENSATION STATUTES ARE SUPERSEDED BY ACT OF 1908. The plaintiff, a railroad employee, was injured while tamping ties on a roadbed used in interstate commerce. It was agreed that no one was negligent. He sued for recovery under the Workmen's Compensation Law of New York. Held, that he may recover. Winfield v. New York Central & Hudson R. R. Co., 54 N. Y. L. J. 52, 110 N. E. 614 (N. Y. Ct. of Appeal).

For a discussion of the question whether the federal Employers' Liability Act has superseded the state compensation laws as to interstate commerce, see NOTES, p. 439.

JUDGES GROUNDS OF DISQUALIFICATION - PREJUDICE. - Burke, one of the miners who took part in the recent Colorado coal strike, was indicted for a murder alleged to have been committed in the course of the riots resulting from the strike. He filed affidavits alleging that the trial judge had been employed as counsel by the mine owners in similar prosecutions against other strikers, and that he was a vigorous partisan of the owners and had openly declared himself hostile to the strikers and their cause, and demanding that another judge be called in to take his place at the trial. The judge held that the facts stated were not sufficient to satisfy the statutory requirement for disqualification. The affiant then applied to the Supreme Court for a writ of prohibition. Held, that the writ will issue. People v. Hillyer, 152 Pac. 149 (Colo. Sup. Ct.).

For a discussion of the questions involved, see NOTES, p. 430.

LANDLORD AND TENANT - ASSIGNMENT OF LEASE - ASSIGNEE'S LIABILITY FOR RENT. — The plaintiff leased premises to a tenant who convenanted not to assign without his permission. The tenant became bankrupt and the lease was assigned to the defendant who later promised the plaintiff to pay the rent in return for the latter's assent to the assignment. The defendant assigned to a third party. The plaintiff sued the defendant for rent accruing after this second assignment. Held, that the defendant is not liable. 78th Street & Broadway Co. v. Pursell Mfg. Co., 155 N. Y. Supp. 259 (Sup. Ct.).

The assignee of a lease ordinarily terminates his liability to the lessor for rent when he makes an assignment over, since this puts an end to the privity of estate between the two. Consolidated Coal Co. v. Peers, 166 Ill. 361, 46 N. E. 1105; Johnson v. Sherman, 15 Cal. 287; Fagg v. Dobie, 3 Y. & C. 96. See 2 TAYLOR, LANDLORD AND TENANT, 9 ed., § 452; WOODFALLS, LANDLORD AND TENANT, 19 ed., 302. However, the liability of the assignee will continue in case the lessor can base his claim against him for rent upon privity of contract. Springer v. De Wolf, 194 Ill. 218, 62 N. E. 542; Lindsley v. Schnaider Brewing Co., 59 Mo. App. 271. See JONES, LANDLORD AND TENANT, § 462. But, of course, the lessor must show that the alleged contract was supported by proper consideration. Dougherty v. Matthews, 35 Mo. 520. In the principal case the only consideration which can be found to support the promise of the assignee to pay the rent is the lessor's assent to the assignment. And it is now well settled that an assignment of a lease made by the trustee of a bankrupt lessee

is one by operation of law which does not require the assent by the lessor. Gazlay v. Williams, 210 U. S. 41, discussed in 22 HARV. L. REV. 146; In re Gutman, 197 Fed. 472; Doe v. Bevan, 3 M. & S. 353. See JONES, LANDLORD AND TENANT, § 466; WOODFALLS, LANDLORD AND TENANT, 19 ed., 319. Hence such assent cannot be treated as consideration.

LIBEL AND SLANDER DAMAGES - EVIDENCE: MAY PLAINTIFF GIVE EVIDENCE OF GOOD CHARACTER IN AGGRAVATION OF DAMAGES? — In an action for slander the plaintiff was permitted to introduce evidence of his honesty. It had not been challenged by the defendant either by evidence or plea of justification. Held, that the evidence was properly admitted. Deitchman v. Bowles, 179 S. W. 249 (Ky.).

In actions of defamation, the reputation of the plaintiff is presumed to be good until proof to the contrary. Many courts and writers have based thereon a rule that, unless his character has been attacked, the plaintiff cannot offer evidence of his good character in aggravation of damages. Guy v. Gregory, 9 C. & P. 584, 587; Blakeslee v. Hughes, 50 Oh. St. 490, 34 N. E. 793. See ODGERS, LIBEL AND SLANDER, 4 ed., 366; 1 WIGMORE, EVIDENCE, § 76. Contra, Adams v. Lawson, 17 Gratt. (Va.) 250; Hitchcock v. Moore, 70 Mich. 112, 113, 37 N. W. 914, 916. Cf. Stafford v. Morning Journal Ass'n, 142 N. Y. 598, 37 N. E. 625. See 4 SUTHERLAND, DAMAGES, 3 ed., § 1211. But the previous reputation of the plaintiff is certainly probative of the extent of his injury, and it seems illogical to exclude relevant evidence merely because there is a primâ facie presumption which makes the rendering of such evidence no longer a prerequisite to recovery. See Adams v. Lawson, 17 Gratt. (Va.) 250, 260. Especially is this so when the presumption, as here, covers a conclusion incapable of accurate definition; for the plaintiff's character may be appreciably better than the impression that an instruction that "the plaintiff's character is presumed to be good" would convey to the jury, and he should have an opportunity to prove it so. See Shroyer v. Miller, 3 W. Va. 158, 161. Again, the very nature of the action tends to lower the plaintiff's reputation below par in the minds of the jury, for in all cases of defamation, at least that attack on the plaintiff's character on which the suit is based is before the jury, and such accusations, though not believed, still tend to poison the minds of the hearers against the reputation of the person defamed. Finally, as the principal redress sought in most cases of libel or slander is the vindication of the plaintiff before the eyes of the community, to deny him the right to prove his good character is to deprive him of the most effective means of obtaining that relief which he seeks and to which he is entitled. Bennett v. Hyde, 6 Conn. 24.

SURETYSHIP SURETY'S DEFENSES: GENERAL PRINCIPLES OF CONTRACT PARTNERSHIP AS PRINCIPAL: EFFECT OF DISSOLUTION ON CONTINUING GUARANTY. The plaintiff became surety to the defendant county for any deposits it might make in "the Hallock Bank." No outsider knew which particular members of a certain family owned the bank, nor whether it was a corporation, a partnership, or an individual enterprise. On the failure of the bank the plaintiff paid its debt to the defendant. The plaintiff later learned that the bank had been a partnership, and that one who was a partner at the time the plaintiff became surety had died before the debt to the defendant was incurred. The plaintiff now sues the defendant county to recover back the amount he paid. Held, that he may recover. Richards v. Steuben County, 155 N. Y. Supp. 571 (Sup. Ct.).

The contract of an accommodation surety is strictly construed in his favor, and cannot be extended by implication beyond its exact terms. City of Sterling v. Wolf, 163 Ill. 467, 45 N. E. 218; State v. Dayton, 101 Md. 598, 61 Atl. 624. An instance of this is the established rule that the surety for a partnership is

entirely released from liability for subsequent partnership obligations by any change in the membership of the firm, because he contracted to be liable for the debts of the original firm only. University of Cambridge v. Baldwin, 5 M. & W. 580; Byers v. Hickman Grain Co., 112 Ia. 451, 84 N. W. 500; Dupee v. Blake, 148 Ill. 453, 35 N. E. 867. See 14 HARV. L. REV. 627. However, if the guaranty shows the intention of the parties that it should survive changes in the partnership, the surety will continue liable for the obligations of the new firm. See Backhouse v. Hall, 6 B. & S. 507, 520; Burch v. De Rivera, 53 Hun 367, 369, 6 N. Y. Supp. 206, 207. Likewise, since a special guaranty is held unassignable, a change in the membership of a partnership which is the creditor of the principal, discharges the surety, unless the contrary intention of the parties appears. Pemberton v. Oakes, 4 Russ. 154; Schoonover v. Osborne, 108 Ia. 453, 79 N. W. 263; Bennett v. Draper, 139 N. Y. 266, 34 N. E. 791. In one case such contrary intention was found from the fluctuating nature of the firm. Metcalf v. Bruin, 12 East 400. In the present case the fact that the sureties were ignorant of the nature of the bank's ownership seems clearly to indicate their intention that it was a guaranty of the bank as an institution not as a partnership, and thus that the guaranty should survive any change in the firm. Cf. Barclay v. Lucas, 1 T. R. 291, note. See BRANDT, SURETYSHIP, 3 ed., § 138.

TRUSTS FOLLOWING TRUST PROPERTY

CONFUSION OF TRUST FUNDS WITH TRUSTEE'S OWN PROPERTY. - A trust company mingled trust funds in its possession with its general assets. It thereupon became insolvent. The injured cestuis claim priority to the extent of the trust funds. Held, that no right to priority exists. Commonwealth v. Tradesmen's Trust Co. (Nos. 1, 2, 3), 95 Atl. 574, 577, 578 (Pa.).

"An abuse of trust can confer no rights on the party abusing it, nor on those who claim in privity with him.' Taylor v. Plumer, 3 M. & Sel. 562, 574. Nor does equity any longer find a difficulty in following money into a larger sum in which it has been mingled. Knatchbull v. Hallett, 13 Ch. Div. 696; National Bank v. Insurance Co., 104 U. S. 54. See A. W. Scott, "Right to Follow Money Wrongfully Mingled with Other Money," 27 HARV. L. REV. 125. It should make no difference that the sum in which the funds are mingled is the trustee's whole estate. Of course if the funds themselves have been expended the res is gone and the cestui can have no priority. Bircher v. Walther, 163 Mo. 461, 63 S. W. 691; Metropolitan National Bank v. Campbell Commission Co., 77 Fed. 705. But after an improper mixture the trustee must show that the funds he has expended from the mass are the cestui's part of it. Knatchbull v. Hallett, supra; Widman v. Kellogg, 22 N. Dak. 396, 133 N. W. 1020. And if the funds have been paid into the estate and not paid out again, the res is there, and equity should follow it. Harrison v. Smith, 83 Mo. 210; People v. City Bank of Rochester, 96 N. Y. 32; McLeod v. Evans, 66 Wis. 401. See S. Williston, "Right to Follow Trust Property," 2 HARV. L. REV. 28, 36. See contra, Empire State Surety Co. v. Carroll County, 194 Fed. 593. Priority is here denied on the old ground that money has no earmarks. The necessary corollary is fearlessly applied: the cestuis are postponed to the insolvent's general depositors under a statute preferring depositors before ordinary creditors.

WILLS PRESUMPTION OF SURVIVORSHIP - DISPOSITION WHERE TESTATOR AND PRINCIPAL BENEFICIARY DIE IN SAME DISASTER. A husband and wife each named the other as principal beneficiary in their wills, each providing that if the other died first, their foster son should become the sole beneficiary. Both were frozen to death in a snowstorm, there being no evidence tending to show which died first. The next of kin now contest the foster son's