pensated by damages. Becker v. Lebanon R. R. Co. (1898) 188 Pa. St. 484. Further, where the act threatened does not amount to anything more than consequential damage and would be lawful but for a state constitutional provision that property shall neither be taken nor damaged, without compensation, it is held that the inconvenience to the public from granting an injunction will constrain a refusal thereof Doane v. El. Ry. (1896) 165 Ill. 510; Moore v. Atlanta (1883) 70 Ga. 611; McElroy v. Kansas City (1884) 21 Fed. 257.

In the principal case the nuisance created by the construction work was temporary in character. Further if the injunction was granted and work proceeded on the authorized route the nuisance would not be materially lessened and would be without remedy. Booth v. Rome R. R. (1893) 140 N. Y. 262. If the work was delayed until the new route was authorized the existing nuisance would merely be postponed and then would be without remedy. Considering the importance of the public interest involved and the disproportion between the injury to the plaintiff if the work continued and to the defendant if it was stopped, it would seem that the court was well within its discretion in taking into account these practical considerations and refusing an injunction. The court also properly refused to recognize as a ground for an injunction the prospective injury from the vibration due to the running of trains. There is ample time for the change in route to be authorized before the trains begin to run. Moreover the prospect of there being any appreciable damage from the operation of the road is so uncertain and the impracticability of determining at this time what the compensation should be, if indeed the injury were held to be a taking of property, is so patent, that it is hardly necessary to resort to the doctrine of public convenience to justify the refusal to interrupt the work on the second ground of the application. Assuming however, that the new route be authorized, but that the vibration from the operation of the road does prove to impair seriously the plaintiff's enjoyment of his property it then will be an interesting question under the New York decisions, whether this continuing injury from vibration be a taking of property within the meaning of the constitution? It has been decided that temporary injury caused by vibration from blasting, done in opening a route for a railroad, is not actionable. Booth v. Rome R. R., (1893) 140 N. Y. 267. But Garvey v. Long Island R. R. (1899) 159 N. Y. 323, suggests a different rule as to continuing injury. While the case might have been put entirely on another ground, the actual decision seems to support the proposition that permanent vibrations, which appreciably affect one's land, are an actual taking of property for which compensation must be made. If this view be taken, mere authorization and the fact that the road is a public benefit will, under previous decisions, be no ground for refusing to enjoin its actual operation until compensation be made. Ambrose v. Buffalo (1892) 25 N. Y. Supp. 129; Storck v. El. Ry., supra. It will be necessary to go further and find from an interpretation of the Rapid Transit Acts that the nuisance is being created under direct governmental command. Then relief might be refused, perhaps, under the doctrine of Fries v. N. Y., N. H. & H. R. R. Co. (1902) 169 N. Y. 270, and Muhlker v. Same (1903) 173 N. Y. 549. discussed respectively in 2 COLUMBIA LAW REVIEW 158, and 3 id. 347.

RECENT DECISIONS.

BANKRUPTCY-DISCHARGE-DEFECTIVE SChedule. A voluntary bankrupt scheduled a note in the name of the payee, though he knew at the time that the plaintiff was the holder thereof. Plaintiff had received no notice of the bankruptcy proceedings until after discharge. Held, plaintiff can recover on the note, although under the statute plaintiff had five months after the discovery of the discharge to prove its claim in bankruptcy, and might have applied for its revocation for fraud. Columbia Bank v. Birkett (1903) 174 N. Y. 112.

§17 subd. 3, Bankruptcy Law of 1898, which provides that a debt is not released by discharge if not duly scheduled in time for proof and allowance, with the name of the creditor . unless such creditor had notice or actual knowledge of the proceedings in bankruptcy," is construed to mean, unless he has such knowledge or notice before the proceedings occur, as the policy of the present statute is that a creditor shall have an opportunity to protect his rights in each successive proceeding as it occurs. How far the court will carry this, whether failure to give notice of the first or any subsequent proceeding, or failure to give notice of the application for discharge falls within this decision, is an open question. The case seems to be one of first impression on the point involved.

BANKRUPTCY-Rights of CREDITORS-EXECUTIONS. Sheriff levied under an execution upon a judgment obtained within four months of the filing of the petition. Held, that the proceeds of the execution sale, held by the sheriff, must be paid to the trustee in bankruptcy, under § 67, f, of the Bankruptcy Act. Clarke v. Larremore (1903) 188 U. S. 486.

The statute declares that all levies obtained within four months of the filing of the petition shall be deemed null and void upon bankruptcy except as to bona fide purchasers for value. § 67, f, Bankruptcy Act of 1898. The holding in the principal case is that as the levy was void and the property passed to the trustee, the sheriff must hold the proceeds of the sale for the trustee. In re Fellerath (1899) 95 Fed. 121; in re Franks (1899) 95 Fed. 635. This seems to be so irrespective of whether or not title passes to the judgment creditor upon the sheriff's sale, on which point there may be some doubt in New York. Baker v. Kenworthy (1869) 41 N. Y. 215 Nelson v. Kerr (1874) 59 N. Y. 225; Wehle v. Conner (1877) 69 N. Y. 546; Kingston Bank v. Eltinge (1869) 40 N. Y. 391; Levor v. Seiter (1902) 69 App. Div. 33. It would seem that under the theory of this case the proceeds could be followed into the hands of a judgment creditor, but the court declines to express an opinion on this point. See Levor v. Seiter, supra; in re Blair (1900) 102 Fed. 987. If the title passes to the judgment creditor on the sale of the property, it is difficult to see how mere change of possession from the sheriff to the creditor can change the latter's rights. Baker v. Kenworthy, supra.

CARRIERS ASSUMPTION OF CONTROL BY SHIPPER. The plaintiff sues the defendant company for alleged negligence in failing to properly bed stock cars, resulting in injury to his cattle. The defendant alleges that the plaintiff undertook to give directions as to the bedding and on completion said it was satisfactory. Held, defendant's allegation constituted a defense. Texas Central R. Co. v. O'Laughlin (Tex. 1903) 72 S. W. 610.

When the shipper assumes control and directs method of shipment the carrier is not liable for resulting injuries, since they are caused by shipper's act. Roderick v. R. R. Co. (1873) 7 W. Va. 54; Miltimore v. R. R. Co. (1875) 37 Wis. 190. It is also held that if the shipper assents

to the preparations of the carrier he assumes the risk. Harris v. R. R. Co. (1859) 20 N. Y. 232. To excuse the carrier in case of mere assent, however, it would seem that the shipper must have knowledge of any defect or should possess an equal skill in the loading, otherwise his assent should not negative a reliance on the superior experience of the carrier. If the carrier knows that the packing or loading of the shipper may lead to injury and fails to notify him or provide against it, the shipper may recover for the carrier's negligence. Kinnick Bros. v. Chicago R. Co. (1886) 69 Iowa 665; Powell v. Pa. R. Co. (1859) 32 Pa. St. 414.

CARRIERS-BILL OF LADING INCORPORATING STATUTE-CONSTRUCTION. Butter was shipped upon the defendant's vessel for carriage from New York to London, under bills of lading incorporating § 3 of the Harter Act. The butter was damaged through the negligent operation of the refrigerating apparatus by the crew. Held, the refrigerating apparatus being necessary to the seaworthiness of the vessel, negligence in the management thereof was a fault or error in the management of the vessel," and the defendants were excused. Rowson v. Atlantic Transport Co. (1903) L. J. 72 K. B. 87.

The Harter Act (U. S. Stat. at Large, Vol. 27, C. 105, Sec. 3) provides that if the owner of the vessel shall exercise due diligence to make the vessel in all respects seaworthy, he shall not be held liable for damage resulting from "faults or errors in the management of the said vessel." The term "seaworthy" is held to apply to a vessel relative to her cargo; i. e., seaworthiness means that the ship and her equipment shall be fit for the purpose of carrying properly the particular goods. The Thames (1894) 61 Fed. Rep. 1014; Maori King v. Hughes (1895) 65 J. L. Q. B. 168. In the principal case the vessel would not have been seaworthy without a refrigerating appara us in good order. Since it was in proper order at sailing, the Act was complied with, and for the fault in management the defendant is excused. There is no American decision wherein a similar question has been raised since the passing of the Act.

CONFLICT OF LAWS-FOREIGN ATTACHMENTt as a Defense TO AN ACTION ON CONTRACT. The plaintiff in each action, residing in New Jersey, rendered services to defendant in that State. The amounts due were garnished in West Virginia. One of the latter actions had proceeded to judgment; the other was pending. Held, the attachments cannot be pleaded in defense to these actions. Bailey v. Penn. R. Co. (N. J. 1903) 54 Atl. R. 248; Naylor v. Same (id.)

These cases cannot be disposed of in the same way. That a judgment in a foreign jurisdiction, prior to the commencement of the action, is pleadable in bar, Savage's Case (1692) 1 Salk. 291, and a mere attachment, without condemnation, before the writ is purchased, ought to be pleaded in abatement of the writ, Brook v. Smith (1694) 1 Salk. 280, represent the English doctrine, followed by a majority of the courts in this country. Drake on Attachments, 700, 705; Embree and Collins v. Hanna 1809) 5 Johns. 101. This view is strengthened by the comity clause of the Federal Constitution. C. R. I. & P. R. Co. v. Sturm (1899) 174 U. S. 710; Howland v. C. R. I. & P. R. Co. (1896) 134 Mo. 474. The source of the confusion in the State courts lies in the attempt to define the situs of the debt for purposes of jurisdiction. For purposes of garnishment, the situs of the debt is with the garnishee, wherever he may be sued. Minor, Conflict of Laws, § 125 and note p. 519. On principle, there is no valid reason for not allowing a judgment, after attachment, to be pleaded in bar, and a pending action to operate as a stay, where jurisdiction is made out in the foreign court.

CONSTITUTIONAL LAW-INTERSTATE COMMERCE-LOTTERY TICKETS. The Act of Congress of March 2, 1895. c. 191, sec. 1, provides for the punishment of any one who shall cause lottery tickets to be carried from one State to another. The petitioner in habeas corpus was held under a war

rant issued on a complaint based upon this statute, charging him with causing lottery tickets to be carried from Texas to California by an express company. Held, the statute was constitutional, as an exercise of the power to regulate interstate commerce. The Lottery Case (1903) 188 U. S. 321. See NOTES, p. 410.

CONTRACTS-AGREEMENT AS TO JURISDICTION. Plaintiff and defendant entered into a contract to be performed partly in Italy and partly in the United States, and it was stipulated that the Italian courts should have exclusive jurisdiction over actions thereon. This stipulation was set up as a defense to an action on the contract brought in Massachusetts. Held, the stipulation was not so unreasonable or such an abnegation of legal rights that the court will refuse to enforce it. Mittenthal et al. v. Mascagni (Mass. 1903) 66 N. E. 425.

It is generally held that a stipulation in a contract which ousts the courts of all jurisdiction over that contract is invalid. Sanford v. Accident Ass. (1895) 147 N. Y. 326; Guaranty Co. v. Ry Co. (1891) 139 U. S. 137. But any stipulation which affects the cause of action, not the remedy, is valid, as that an appraisal of damage shall be made before suit is brought, Eldridge v. Führ (1894) 59 Mo. App. 44, or that any action shall be brought before a certain time. Ins. Co. v. Phænix Co. (1858) 31 Pa. St. 448. An agreement, however, to submit all differences to arbitration is void. Stephenson v. Ins. Co. (1866) 54 Me. 55. The principal case, though supported by a former Massachusetts case, Daley v. People's Ass. (1901) 178 Mass. 13, appears to be contra to the weight of authority nor is it, as stated in the opinion, according to the New York doctrine. Benson v. Building Ass. (1903) 174 N. Y, 83.

CONTRACTS-CANCELLATION BY COURT-REVIVAL OF PRIOR CONTRACT. The

defendant engaged the plaintiff to procure certain contracts. The plaintiff's compensation was to be the excess of the contract price over a certain fixed sum. Later upon plaintiff's representation that he could not obtain contracts in excess of the sum fixed, it was reduced. The plaintiff immediately procured a contract much in excess of either sum, which contract was duly entered into by the defendant. The plaintiff sued for his compensation and the defendant set up fraud in inducing the second contract of agency. Held, the plaintiff was entitled to recover compensation on the basis of the original agreement. Hale Elevator Co. v. Hale (Ill. 1903) 66 N. E. 249.

Save the few authorities cited in the principal case and an intimation in the opinion in Oakley v. Ballard (1846) 1 Hempst. 475, there seems to have been no previous adjudication exactly in point. It would seem, however, that the court, in the exercise of its discretionary equitable powers, was fully justified in allowing the defense only on terms that the defendant should pay in accordance with the first contract of agency. This put the parties exactly where they were at the time of the fraudulent act.

CONTRACTS-MORAL CONSIDERATION. Defendant proposed to settle with creditors, among whom was plaintiff, by giving securities at an arbitrary valuation of 80% of their face value and his moral obligation" to later take back the securities at such valuation. Plaintiff agreed and released defendant. Held, that such moral obligation was a sufficient consideration to support a subsequent promise by defendant to take back the securities. Taylor v. Hotchkiss (1903) 80 N. Y. Supp. 1042.

It is almost universally held that if a debtor is discharged by some positive statute or by operation of law a moral obligation to pay the debt remains and will support a subsequent promise to pay. Turlington v. Slaughter (1875) 54 Ala. 195. On the other hand if a release is given by a creditor voluntarily no such moral obligation survives. Mason v. Campbell (1880) 27 Minn. 54: Stafford v. Bacon (N. Y. (1841) 1 Hill 532. Inasmuch as the release in the principal case was given voluntarily it seems to be difficult to support the decision, for it permits the parties, by express acknowledgment to make valid as a consideration something which the law declares to be invalid.

CONTRACTS-NUDUM PACTUM. Defendant, plaintiff's judgment creditor, recovered a judgment for $226. He agreed to satisfy this if plaintiff would pay him $50 and give his note for $50, provided the note was paid at maturity. Plaintiff paid the cash and the note, obtaining a receipt in full, but defendant refused to satisfy the judgment. Held, defendant's promise was without consideration and unenforceable. Shanley v. Koehler (N. Y. 1903) 80 App. Div. 566.

The doctrine that the payment of part of a debt is not a sufficient consideration upon which to found a promise to satisfy the whole, though often criticized, Clayton v. Clark (1896) 74 Miss. 499, is the general rule both in England and the United States. Foakes v. Beer (1884) 9 App. Cas. 605; Ins. Co. v. Kink (1884) 110 Ill. 538. The courts, however, interpret the rule strictly, and it is held in most jurisdictions that the giving of a promissory note by the debtor, since he is not bound so to do, will support the creditor's promise, Sibree v. Tripp (1846) 15 M. & W. 22, but see, contra, Parrott v. Colby (N. Y. 1875) 6 Hun. 55. The principal case may be reconciled with the general rule if the note is considered to have been taken merely as a means of getting the money and not in and for itself. Bliss v. Shwarts (1875) 65 N. Y. 444. But the receipt in full given by the creditor would seem to come within the rule of McKenzie v. Harrison (1890) 120 N. Y. 260, that such a receipt is evidence of a gift by the creditor of the remainder of the debt.

CONTRACTS-NUDUM PACTUM. Plaintiff entered into a contract with W & B whereby he was to transfer certain promissory notes in exchange for a promissory note of W & B. He refused to perform unless there were more names on the note of W & B and they obtained the signature of defendant who set up lack of consideration. Held, W. & B, in obtaining defendant's signature, waived the first contract, and the consideration for defendant's promise was the transfer of the notes to W & B. Merchants Nat. Bank of Cincinnati v. Ryan (Ohio 1903) 66 N. E. 526.

The question whether or not the performance or promise to perform an existing contractual duty is a good consideration on which to support a promise has been answered by the courts in various ways. In England and some few American jurisdictions it is held that if the duty is owing the promisor there is no consideration but if the duty is owing a third person there is consideration. Scotson v. Pegg (1861) 6 H & N 295., Humes v. Decatur Co. (1893) 98 Ala. 461. În Massachusetts there is good consideration in both cases. Where the duty is owing the promisor the subsequent contract is considered in and of itself to be a rescission of the former. Rollins v. Marsh (1880) 128 Mass. 116. In New York, and generally, it is held that this second contract will not have this effect unless such is the agreement between the parties, Vanderbilt v. Schreyer (1883) 91 N. Y. 392, Lingenfelder v. Brewing Co. (1890) 103 Mo. 578, and hence there can be no consideration for the second contract. Nor by the weight of authority will the promise to fulfill or the fulfillment of a duty owing a third person be a good consideration. Reynolds v. Nugent (1865) 25 Ind. 328.

CORPORATIONS-ILLEGAL INCORPORATION-STOCKHOLDERS' LIABILITY INTER SESE. Plaintiff was minority stockholder in an association acting as a corporation, a bona fide attempt to incorporate having failed. He sued the defendant, majority stockholder, for an accounting on a partnership basis. Held, as no partnership was intended, they were not liable as partners inter sese, but were bound by the terms of the charter, that representing the contract between the parties. Cannon v. Brush Electric Co. et al. (Md. 1903) 54 Atl. 121. See NOTES, p. 408.

CORPORATIONS-MERGER. The Northern Securities Company, an independent corporation, acquired the majority of the stock of the Northern Pacific and Great Northern Railways, in pursuance of an agreement between the stockholders of these railways. Held, this put the control of the N. P. R. and the G. N. R. in the hands of the Northern Securities Company, and, therefore, as it thus had the power to restrain trade