31 Conn. 530 (1863)]; Shannon v. Kinny, 1 Marsh. 4 (Ky., 1817), [though the opposite result was reached in Winn v. Wilbite, 5 Marsh. N. S. (Ky., 1834); McCoy v. Dickenson College, 5 Serg; & Rawle 254 (Pa., 1819); McNeeley v. Langam, 22 Ohio St. 32 (1871).

The New York rule, and the general doctrine is that of Sawyer v. Kendall. Smith v. Reich, 80 Hun, 287 (N. Y., 1894); Angell on Limitations, 6th ed., §§ 413, 414; Tyler on Ejectment and Adverse Enjoyment, p. 914; Riggs v. Fuller, 54 Ala. 141 (1875).

An

REAL PROPERTY-CONTRACT of Sale-InFANCY-ADVERSE POSSESSION. infant made a parol sale of land, gave possession and received the purchase price; he also signed a bond to make a deed when he came of age. Held, the vendee's possession was adverse, being that of a vendee under an executed contract of sale. Ogle v. Hignet, 61 S. W. 596 (Mo., March, 1901).

The use of the term executed contract here is unfortunate, for the reason that with respect to the vendor's promise, the contract was in fact unexecuted. In saying that as the vendee had fully performed his part of the contract the contract had become executed and that, therefore, he was an adverse possessor, the court reaches a correct result; but its language is ambiguous. If a contract is said to be unexecuted, one may be misled, as the plaintiff was here, in supposing that it is wholly unexecuted, whereas in fact it may be wholly performed on one side.

Had the court said the plaintiff could not recover because the vendee was in possession under a unilateral contract, no misunderstanding could arise; for it is only when a vendee is in possession under a bilateral contract that he cannot be said to hold adversely. Adair v. Adair, 78 Mo. 630 (1883). At least without some unequivocal and positive action to indicate such a purpose. Hannibal & Ŝt. Jo. R. Co. v. Miller, 115 Mo. 158 (1893).

REAL PROPERTY-COVENANTS AGAINST INCUMBRANCES-REMOTE GRANTEE. A deed contained a covenant against incumbrances. The land at the time was subject to a local assessment, and thereafter was conveyed subject to the assessment. Held, such conveyance broke the continuity of the of the covenant and a subsequent grantee under a deed containing the covenant against incumbrances cannot recover on it as against the original grantor. Geiszler v. De Graaf et al., 59 N. E. 993 (N. Y., March, 1901).

The grantee of land conveyed subject to an assessment or other incumbrance is presumed to deduct the amount of the assessment from the purchase-price. Therefore he and his grantees have no right of action on any covenant against incumbrances in a deed by a previous grantor. Vrooman v. Turner, 69 N. Y. 280 (1877).

The present case is interesting, chiefly because the court took occasion to review previous conflicting decisions and declare that “the covenant against incumbrances attaches to and runs with the land, and passes to a remote grantee through the line of conveyances, whether there is a nominal breach or not when the deed is delivered." This ruling, though strictly only a dictum, will probably settle that question in New York. It is in line with the general tendency of decisions and enactments. The opposite view which prevailed at common law was based on the nonassignability of choses in action. Since choses in action are now assignable in New York, this doctrine should not survive the reason on which it was founded, and there are decisions in the lower court declaring that it does not. Coleman v. Bresnahan, 54 Hun, 619(1889); Clarke v. Priest, 47 N. Y. Supp. 489 (Sup. Ct., App. Div. 1889).

REAL PROPERTY-DRAINAGE OF OIL LANDS-DAMAGES. Where A leased two adjoining tracts of oil land from different parties, B and C, agreeing to pay a royalty on all the oil produced, and then sank a well on C's land only, intending to drain and in fact draining the oil from B's land. Held, in equity, B is not entitled to the royalties on all the oil produced, on the theory of confusion of goods, but only on the proportion of oil, to

the whole amount produced, which the area of his land so drained bears to the land drained in the other tract. Kleppner v Lemon, 48 Atl. 483 (Sup. Ct. Pa., March 25, 1901).

Cases relating to oil and natural gas necessarily involve difficult and uncertain points, for although both are minerals, because of their peculiar attributes, as the subject of property, they differ from other minerals, and the term "minerals feræ naturæ," used by MITCHELL, J., in Westmoreland Co. v. De Witt, 130 Pa. 235 (1890), illustrates their nature. Thus, until the owner of the land has actually reduced the oil into his possession he has no exclusive property right in it, and if an adjoining proprietor by sinking a well in his own land draws off the oil, the owner of the drained land has no remedy. Achison v. Stevenson, 146 Pa. 239 (1891); Brown v. Spilman, 155 Ú. S. 665 (1895). This result is in accord with the doctrine as to percolating water, Acton v. Blundell, 12 M. and W. 324 (1843), and has been followed in Vermont, even in the case of malicious interception. Chatfield v. Wilson, 28 Vt. 49 (1855). In view of this doctrine, where oil lands are leased in consideration of a royalty, the law implies a covenant on the part of the lessee to work the lands properly and with due diligence so that the lessor should not sustain loss by the operations of adjoining proprietors. Brown v. Vandergrift, 80 Pa. 142 (1875); Koch's Appeal, 93 Pa. 434 (1880). It seems from an earlier report, Kleppner v. Lemon, 176 Pa. 502 (Sup. Ct., 1896), that the lessee (A), in the principal case had forfeited his lease; but it is not shown in the present report whether the lessor is trying to obtain damages for the breach of the implied covenant to work the lands properly and with due diligence, or is attempting to get satisfaction for the oil willfully drained from his land. If the lessor's action is on the implied covenant, the measure of damages ought to be determined in a more accurate way, for the relative areas of the two tracts show nothing as to the amount of oil lying under the surface. In a question of so uncertain a nature, the measure of damages laid down in Bradford Oil Co. v. Blair, 113 Pa. 83 (1886) seems preferable. The court there decreed that a master should ascertain how much more oil the plaintiff ought to receive, over and above what he had received, deducting from this the cost of producing what ought to have been produced. So here, an estimate of the amount of oil lying under the lessor's land should have been made and the royalties allowed on that quantity only. But if the lessor is attempting to get satisfaction for the oil drained from his land, it seems doubtful whether he has any right to recover. For the cases of Achison v. Stevenson and Brown v. Spilman (supra), hold that the owner of the soil has no such property right in oil, before it is reduced to possession as to be able to bring trover for it, if it is drained off through the land of another. As the action was in equity, the court might, however, have given damages for the fraud practiced on the plaintiff. (See Law of Mines and Mining in the U. S., Barringer & Adams, ed. 1897.)

REAL PROPERTY-HIGHWAYS-NEW USER. Judgment was sought declaring unconstitutional an act authorizing side paths on roads, for the use of bicycles. Refused. Ryan v. Preston, 69 N. Y. Supp. 100 (March, 1901).

This is an application of a recognized principle to new facts. Mr. Justice MITCHELL states the doctrine clearly in Cater v. N. W. Tel. Exch., 63 N. W. 111 (Minn. 1895), namely that methods though not within the contemplation of the original dedication, if within the general purpose of that dedication, impose no additional burden. This is the principle of Palmer v. The Larchmont Light Co., 158 N. Y. 231 (1899) which does not conflict with Eels v. The Am. Tel. Co., 143 N. Y. 133 (1894).

The use in the principal case is not comparable to a use by a railroad company for its road bed.

REAL PROPERTY-LANDLORD AND TENANT. Where a tenant sub-let the premises with the lessor's permission, and, owing to the sub-lessee's refusal to quit, the tenant was unable to surrender possession at the expiration of the lease, held the landlord may hold the tenant for another

year's rent, because the failure to deliver up the premises was the tenant's fault. Sullivan v. G. Ringler & Co., 69 N. Y. Sup. 38 (March, 1901).

It is well settled in New York that a tenant who holds over may be liable either as a trespasser or tenant for another year. Schuyler v. Smith, 51 N. Y. 313 (1873). The rule has been strictly applied, no exception being made in case of an involuntary holding over. Haynes v. Aldrich, 133 N. Y. 287 (1892), where it was held that the presence of a sick boarder in the house who could not be removed with safety was no excuse. In Herten v. Mullen, 159 N. Y. 28 (1899), however, the rule was relaxed, where it was held that involuntary holding over, if caused by act of God or inevitable accident, will not render the tenant liable for another year's rent. Obviously, the principal case did not fall within this exception.

SALES UNPAID VENDOR-PASSING OF TITLE-NOTICE TO SUB-Vendee. Contractors agreed to build a house for the defendant and bought materials from the plaintiff. When the house was partly completed and some of the lumber still unused lay on the property, the building contract was rescinded by mutual agreement, the defendant buying of the contractor this building material. Held, the plaintiff, the materialman, having given notice to the defendant that he was unpaid, could recover for the materials so used. Rosenbaum v. Carlisle, 29 So. 517 (Miss., March, 1901).

It is difficult to see how the notice given could have such effect. The fact that the contractors had not paid for the material did not necessarily prevent title passing. Benjamin on Sales, page 299, and cases there cited. By all the facts that appear the lumber was sold and delivered, and the purchase-price is being sued for. The contractors, then having title, sold to the defendants. The plaintiff had his action against the contractors for goods sold and delivered, but certainly not against the present defendant. Though not the better doctrine, there is authority for the view that in a "cash" sale, title does not pass even by delivery unless the price is paid. National Bank v. Chicago, Burlington and N. Ry. Co. 44 Minn., 224 (1890); Empire State Founding Co. v. Grant, 114 N. Y. 40 (1889).

Nothing is shown as to the terms of this sale. If the notice given was for the purpose of preventing the passing of title, this suit against the defendant should have been in replevin or for conversion.

STATUTES DOCUMENTARY EVIDENCE- REVENUE STAMPS. Held, the United States Internal Revenue law of 1898 forbidding the use of certain documents as evidence in any court unless bearing revenue stamps, affects their use in the Federal courts only. Watson v. Mirike, 61 S. W. 538 (Tex., Feb, 1901).

The question here presented has not yet been answered by the Supreme Court of the United States. Until it has been, it must remain an open one. It is worthy of note, however, that the holding above agrees with the holdings of nearly all the States upon the somewhat similar internal revenue laws of 1864 and 1866. Clemens v. Conrad, 19 Mich. 170 (1869); Griffin v. Rauney, 35 Conn. 239 (1868); Latham v. Smith, 45 Ill. 29 (1867); and is in accord with the construction already put upon the present law by the courts of two States. Cassidy v. St. Germain, 46 Atl. 35 (R. I., 1900); Small v. Slocum, 37 S. E. 481 (Ga., 1900). TORTS CIVIL ACTION FOR FELONY-DUTY TO PROSECUTE CRIMINAL. The plaintiff sued to recover damages for felonious assault. The defendant pleaded in abatement that an indictment for the felony was still pending and undetermined against him. Held, the plaintiff having made her complaint and appeared before the grand jury was entitled to maintain this action. McBlain v. Edgar, 48 Atl. 600 (N. J., Mar., 1901).

In England, an old rule of the common law precludes the institution of a civil suit against a defendant for a tort which is also a felony, until the plaintiff has prosecuted the criminal offense to conviction, acquittal or a termination of the criminal proceeding by some judicial act. Stone v. Marsh, 6 B. & C. 551 (1827). Though the American courts are unani

mous in refusing to apply the full English doctrine, there is a wide diversity of opinion as to how far the principle should be carried. In some States the rule has been repudiated at common law; in others it has been abrogated by statute. One jurisdiction limits it to such felonies as are punishable capitally, another to offenses which were felonies at common law. Mr. BISHOP says that the true rule is believed to be that the party may institute the proceeding for damages as promptly as he chooses, only he must not bring on the trial in advance of his public duty. New Crim. Law, § 272.

TORTS-DEATH OF A MINOR-RIGHT OF ACTION. Held, "no action at common law by a father lies for the instantaneous death of a minor son." Bligh v. Biddeford & S. R. Co., 48 Atl. 112 (Me. Jan. 1901). The case is a good illustration of the barbarous rule of the common law that actio personalis moritur cum persona. Statutes similar to Lord Campbell's Act (9 and 10 Vict. c. 29), which modified the rule in England, and allows a recovery in a case like that above, have been passed in most of our States; but in the absence of statute, or in such a case as the present where the action is not brought under the statute passed, the common law rule still prevails. The Harrisburg," 119 U. S. 199 (1886); Moran v. Hollings, 125 Mass. 93 (1878); Goodsell v. Hartford & N. H. R. R., 33 Conn. 51 (1865). Ford v. Munroe, 20 Wend. 210 (1838), which is cited as holding the contrary, was practically overruled by the N. Y. Court of Appeals in Green v. Hudson River R. R. Co., 2 Keyes, 294 (N. Y., 1866). TORTS-MASTER AND SERVANT-FELLOW-SERVANTS. Through the negligence of railway company's section foreman in performing his duty, which was to control the brakes of a hand car for the transportation of section hands, the plaintiff, a section hand, was thrown from the car and injured. Held, the railway company was liable, on the ground that the foreman was not a fellow-servant, but a vice-principal. Ill. Cent. Ry. Co. v. Josey's Adm'x, 61 S. W. 703 (Ky. Nov. 1900).

The exact relation existing between the railway company and the foreman is not clearly stated. But assuming that it was that ordinarily existing between such parties, the decision is against the great weight of authority. Lochbaum v. Oregon Ry. & Nav. Co., 104 F. R. 852 (Wash. 1900) and Railroad Co. v. Gaun, 47 S. W. (Tenn., 1898) are, as to their facts, on all fours with the principal case and both are contra.

The Court was evidently misled by the fact that the foreman was the superior of the section hand; but, in the absence of evidence showing that the foreman was a direct representative of the railway company in performing the act which occasioned the injury, this fact was immaterial. Crispin v. Babbitt, 81 N. Y. 576 (1880): Rodgers v. Ludlow Mfg. Co., 144 Mass. 198 (1887); Pollock on Torts (N. Y., 1895), 67; Cooley on Torts (Chicago, 1880), 542-545.

TORTS-NEGLIGENCE-PASSENGer Elevators-RES IPSA LOQUITUR. Plaintiff's intestate was killed by the fall of a passenger elevator in which he was riding. Held, the jury might infer negligence from the fact of the accident and the attendant circumstances, and that defendant, who owned the elevator, was bound to use a degree of care commensurate with the dangerous character of the service. Griffin v. Manice, 59 N. E. 925 (N. Y., 1901). SEE NOTES, p. 399.

TORTS-NEGLIGENCE-FREIGHT ELEVATORS-RES IPSA LOQUITUR. Plaintiff was injured by the fall of a freight elevator in which he was riding. Held, A presumption of negligence arose from the fact of the accident, and that defendant was bound to a carrier's liability in respect to the apparatus employed. Springer v. Ford, 59 N. E. 953 (Ill., 1901). SEE NOTES, P. 399.

TORTS-MASTER AND SERVANT-MEASURE OF DAMAGES. Plaintiff was injured through his employer's negligence; Held, evidence as to the size of the plaintiff's family and their dependence on him was admissible as tending to prove loss of capacity to meet obligations imposed upon

him by law. Youngblood v. South Carolina & G. R. Co., 38 S. E. 232 (S. C., March, 1901).

Two cases are cited by the Court as authority for this decision-Johns v. Railroad Co., 17 S. E., 698, and Maltus v. Railroad Co., 31 S. E. 240, Neither of these cases, however, is in point. In the former the Court denied an exception based on the admission of similar evidence, on the ground that in that particular case it was wholly immaterial and could not have influenced the verdict. In the latter case a similar exception was overruled because the defendant company had itself introduced evidence on the same point in cross-examination.

If there is little authority for this ruling in law it would seem that there is still less reason for it in principle. The necessary decrease in the plaintiff's earning capacity is the correct measure of damages in such cases, Rooney v. Railroad Co., 53 N. E. 435,-not, as the principle case seems to indícate, the probable amount of his expenditures.

TRUSTS-CHARITABLE BEQUESTS IN NEW YORK-LAWS OF 1893. Held, by a referee, that a bequest of one thousand dollars " For the Poor of New York" is a charitable fund to be used for the benefit of the poor. It is not void for indefiniteness of beneficiaries, is not within the rule against perpetuities, and is to be administered by the Supreme Court. No appeal was taken. Racine v. Gillet, N. Y. Law Journal (N. Y. Supr. Ct., March 30, 1901). SEE NOTES, p. 400.

TRUSTS-RIGHTS OF CREDITORS UNDER "SFENDTHRIFT'S" TRUSTS. Defendants as trustees were under the duty of applying the income of the trust estate to the support of the beneficiary, having great discretion as to the amount to be so applied and the investment of the surplus. Held, they were liable to the extent of the income, for necessary medical services rendered by the plaintiff to the beneficiary at his request. Sherman v. Skuse et al., 59 N. E. 990 (N. Y., March, 1901).

It is well settled that the maker of a spendthrift trust may, either by terms or by implication, prevent creditors of the beneficiary from acquiring any right against the res in satisfaction of their claims. Seymour v. McAvoy, 53 P. R. 946. The Court recognizes this rule and expressly disclaims any intention of overriding it. The decision is based on the peculiar state of facts in the present case. The plaintiff's claim was undoubtedly meritorious. There was no explicit finding that the trustees had themselves furnished proper medical attendance, and this, by the terms of the trust, they were bound to do. The Court seized upon the maxim," Equity looks upon that as done which should be done," and considered the services as necessaries furnished to the beneficiary with the trustees' consent. While justice was undoubtedly done, the case may be viewed with suspicion, as lending itself too readily to improper citation. WILLS-PRESENCE OF WITNESSES. Witnesses signed in an adjoining room, but the testatrix could have seen them by rising in bed, and was conscious of all that was said and done, though she was unable to raise herself. Held, the witnesses subscribed in her presence. Raymond v. Wagner, 59 N. E. 811 (Mass., March, 1901).

Mr. JARMAN, in his treatise on the law of wills, at page 89 declares such a subscription invalid, but cites only one case. The opinions in Downie's Will, 42 Wis. 66 (1877) and in Chase v. Kittredge, I Allen 61 (Mass., 1865), show that those courts held the same view, though those cases are distinguishable from the principal case. American authorities are hopelessly at variance, as shown by a note to Mandeville v. Parker, 31 N. J. Eq. 242 (1879). In Cunningham v. Cunningham, 83 N. W. 58 (Minn., 1900), and Hopkins v. Hopkins, 45 Atl. 551 (R. I. 1900), the testator could have seen, but did not, and the subscription was held valid. Riggs v. Riggs, 135 Mass. 238 (1883), and Cook v. Manchester, 46 N. W. 106 (Mich., 1890), distinguishing Aiken v. Weckerly, 19 Mich. 482 (1870), are strictly in accord with the principal case. Ordinarily the ability to see witnesses is the best test of their presence, but it would not be applicable in case of a blind testator. This is a similar case. But for a physical infirmity the testatrix could have seen what took place and a reasonable application is given to the statutes.