been paid the lessor sues to recover possession of the grain. Held, that he may recover. McGarvey v. Prince, 143 Ñ. W. 380 (S. D.).

By statute in South Dakota, "Every transfer of an interest in property, ... made only as security for the performance of another act, shall be deemed a mortgage, except when, in the case of personal property, it is accompanied by actual change of possession, in which case it is to be deemed a pledge.' CIVIL CODE, S. D., § 2044. Possession by the pledgee is essential to a valid pledge at common law. Thompson v. Dolliver, 132 Mass. 103. Where the chattels remain in the control of the pledgor there is no sufficient delivery of possession. Casey v. Cavaroc, 96 U. S. 467; Lilienthal v. Ballou, 125 Cal. 183, 57 Pac. 897; Lee, Wilson & Co. v. Crittenden County Bank & Trust Co., 98 Ark. 379, 135 S. W. 885. The court seems in error, then, in treating this as a pledge with constructive possession. But where there is an agreement to give specific property as security, without the technical legal requisites, equity will establish a lien by enforcing the agreement between the parties and volunteers or purchasers with notice. First National Bank of Omaha v. Day, 150 Ia. 696, 130 N. W. 800; Walker v. Brown, 165 U. S. 654, 17 Sup. Ct. 453. The principle should apply as well to property not yet in existence or to be acquired in the future, if sufficiently specified. Holroyd v. Marshall, 10 H. L. C. 191; McCaffrey v. Woodin, 65 N. Y. 459. But there is considerable opposition to such a doctrine in the United States, as tending too greatly to prejudice creditors. Hitchcock v. Hassett, 71 Cal. 331, 12 Pac. 228; Robertson v. Robertson, 186 Mass. 308, 71 N. E. 571. Certainly an unrecorded agreement to give security unaccompanied by any actual delivery of the property will not be enforced to the prejudice of those whom the recording statutes are intended to protect. St. Joseph Hydraulic Co. v. Wilson, 133 Ind. 465, 33 N. E. 113; Lake Superior Ship Canal, etc. Co. v. McCann, 86 Mich. 106, 48 N. W. 692. It has been said under the South Dakota statute that no lien except that of a chattel mortgage is tolerated, unless accompanied by possession in the lienee. See Greeley v. Winsor, 1 S. D. 117, 120, 45 N. W. 325, 326. As the statute seems at least partly for the protection of the lienor, this view would seem to be sound. See CIVIL CODE, S. D., §§ 2091, 2092. Under such a view of the statute it is difficult to see how any lien can be created in the principal case. See 21 HARV. L. Rev. 61; 19 HARV. L. REV. 557.

PLEDGES TORTIOUS DISPOSAL BY PLEDGEE -EFFECT UPON RIGHT TO RECOVER THE Debt.· A stockbroker carrying stock on a margin mingled it with other securities and pledged it for an indebtedness of his own of a larger amount than that due from the customer. The customer later refused to take the stock and was sued by the broker. Held, that the pledge was a conversion and constituted a complete defense to the original indebtedness. Sproul v. Sloan, 241 Pa. 284, 88 Atl. 501.

If stock is purchased by a broker on a margin for his customer the relation of pledgee and pledgor arises. Richardson v. Shaw, 209 U. S. 365, 28 Sup. Ct. 512; Markham v. Jaudon, 41 N. Y. 235. A repledge for a sum larger than the debt is a conversion. Douglas v. Carpenter, 17 App. Div. 329, 45 N. Y. Supp. 219; Strickland v. Magoun, 119 App. Div. 113, 104 N. Y. Supp. 425; id. 190 N. Y. 545, 83 N. E. 1132. See 9 HARV. L. REV. 540; 19 HARV. L. REV. 529. The weight of authority in the United States is that even without a tender trover will lie, the damages being the full value. Douglas v. Carpenter, supra; see Neiler v. Kelly, 69 Pa. 403, 409. See 9 HARV. L. REV. 540; 18 HARV. L. REV. 610. If trover is not allowed, there would be an action on the case for which damages will be those actually suffered. The conversion is a breach of contract, but in the simple case of pledge it seems not a sufficient cause for rescission. Ratcliff v. Evans, Yelv. 179; Jarvis v. Rogers, 15 Mass. 389, 408. See Johnson v. Stear, 15 C. B. N. s. 330, 33 L. J. C. P. 130; Donald v. Suckling,

L. R. 1 Q. B. 585; Halliday v. Holgate, L. R. 3 Ex. 299. In the principal case there is also the relation of principal and agent. If a broker makes executory contracts of purchase for future delivery in his own name, and before the day of payment, without instructions, closes out the contracts at a loss, he cannot hold his principal, since no money has even been due from the agent to the third party, and thus the contract of indemnity has never become complete. Ellis v. Pond, L. R. [1898] 1 Q. B. 426; Higgins v. McCrea, 116 U. S. 671. But if the exchange has taken place between the agent and the third party a debt from the principal to the agent is created, the right of indemnity being complete. The subsequent conversion, it is submitted, should not wipe this out. Lacey v. Hill, L. R. 8 Ch. App. 921; Ellis v. Pond, supra, 438; Minor v. Beveridge, 141 N. Y. 399, 36 N. E. 404. Where the damages for the conversion equal or exceed the sum due the broker this distinction may be academic, but if the damages are less, for example, if at the time of the conversion the value of the stock has depreciated, it becomes real.

PROXIMATE CAUSE INTENDED CONSEQUENCES SUICIDE INDUCED BY THREATENING LETTERS. — The plaintiff sued to recover damages for the death of her husband. The declaration alleged that the defendants sent to the decedent, whom they knew to be nervous and excitable, a letter threatening mysterious disclosures unless he resigned his official position at once; that this letter so unbalanced the decedent's mind that he killed himself; and that this result was contemplated and intended by the defendants. Held, that the declaration does not state facts sufficient to constitute a cause of action. Stevens v. Steadman, 79 S. E. 564 (Ga.).

The modern law of torts recognizes the general proposition that the intentional infliction of harm without justification is an actionable wrong. See Skinner & Co. v. Shew & Co., [1893] 1 Ch. 413, 422; Aikens v. Wisconsin, 195 U. S. 194, 204. Logically, therefore, although threats alone constitute no cause of action, one who has intentionally injured another by means of threatening letters should answer in damages. Grimes v. Gates, 47 Vt. 594. Thus at least one court has intimated that to tell a man something intended to drive him mad Iwould be actionable if it had the desired result. See Silsbee v. Webber, 171 Mass. 378, 380, 50 N. E. 555, 556. Similarly, to threaten a man with mysterious charges in the hope of driving him to suicide would seem to be a legal wrong if the intended result should follow. The considerations of policy which lead some courts to refuse recovery for damage caused by mental shock alone admittedly do not apply to intentional harm. See Spade v. Lynn & Boston R. Co., 168 Mass. 285, 290, 47 N. E. 88, 89. Nor should there be any difficulty with respect to causation when the defendant intended his victim's self-destruction. For the authorities agree that an intended result, however improbable, is always proximate. Regina v. Michael, 2 Moody C. C. 120; Regina v. Martin, 8 Q. B. D. 54. See POLLOCK, TORTS, 9 ed., p. 32. It is equally well settled that the intervening act of the injured party does not make the defendant's act remote. Jones v. Boyce, 1 Stark. 493; People v. Lewis, 124 Cal. 551, 57 Pac. 470. The principal case, therefore, inasmuch as it was concerned solely with the sufficiency of allegation, seems erroneous in holding that the defendants' letter could not have been the legal cause of the suicide. Malone v. Cayzer, Irvine & Co., 45 Scot. L. Rep. 351. Its theory appears to be that causation cannot be traced through mental states. But the law is now well settled to the contrary. Ex parte Heigho, 18 Ida. 566, 110 Pac. 1029; Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 50 N. W. 1034. The facts of the principal case suggest the further question whether the decedent's own wrong was so far the cause of his death as to defeat recovery at the suit of his wife. It may be that voluntary wilful suicide would bar the action. Daniels v. New York, N. H. & H. R. Co., 183 Mass. 393, 67 N. E. 424; but see 17 HARV. L.

REV. 125. But where the defendant's act so unbalances the decedent's mind that it loses the quality of free voluntary action, he is not fairly chargeable with his own death. Cf. Sumwalt Ice, etc. Co. v. Knickerbocker Ice Co., 114 Md. 403, 80 Atl. 48. Suicide under such circumstances should not defeat the action.

PUBLIC SERVICE COMPANIES - REGULATION STREET RAILWAYS - RIGHT TO REQUIRE INTERCHANGE OF TRANSFERS. - Congress passed a law requiring the interchange of transfers between two street railways in the District of Columbia that were independently owned and operated. Held, that the law is constitutional. District of Columbia v. Capital City Traction Co., 41 Wash. L. Rep. 766.

For a discussion of the right of the legislature to compel an interchange of transfers see this issue of the REVIEW, at p. 380.

PUBLIC SERVICE COMPANIES RIGHTS AND DUTIES ·DISCRIMINATION IN RATES: CONTINUING CONTRACT NOT DISCRIMINATORY WHEN MADE WHICH BECOMES SO BY A SUBSEQUENT CHANGE IN OTHER RATES. The defendant company contracted to furnish the plaintiff telephone service at a certain yearly rate during the continuance of an opposition company. Other patrons were served at the same rate, but their contracts, unlike that of the plaintiff, were subject to discontinuance at sixty days' notice. The defendant later raised the rate for all service of this class, cancelling on notice all existing contracts. Held, that the plaintiff may recover. Dean v. Central District Printing & Telegraph Co., 61 Pitts. L. J. 613 (Pa. C. P. Lawrence Co., Aug., 1913).

It is the settled policy of public service law that all persons shall pay the same rates for the same service. Postal Cable Telegraph Co. v. Cumberland Tel. & Tel. Co., 177 Fed. 726; Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S. E. 137. Therefore a contract providing for charges which are an apparent and present discrimination over rates charged others is void. Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92, 21 Sup. Ct. 561; Armour Packing Co. v. Edison Co., 115 App. Div. 51, 100 N. Y. Supp. 605. In furtherance of this policy it has been held under the Interstate Commerce Act that a continuing contract for service at a fixed price is subject to variation by changes in the published rates. Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428; Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265. Since the best opinion seems to be that the Interstate Commerce Act as to its provisions on discrimination is merely declaratory, the above cases seem directly in point against the principal case. Logically it would seem that the power of a public service company to bind itself to continue service at a fixed price is necessarily qualified by the controlling principle of equality. Judged by this test the principal case is incorrect. Contra, Buffalo Merchants' Co. v. Frontier Tel. Co., 112 N. Y. Supp. 862.

PUBLIC SERVICE COMPANIES ·VALUATION FOR RATE PURPOSES - ABANDONED PROPERTY AS DEPRECIATION. The plaintiff railroad company built sections of new road in substitution for parts of the old road, this being a cheaper method than changing the old road. Regulations of the Interstate Commerce Commission allowed the company to credit its property accounts with only the difference between the full cost of the improvements and the value of the abandoned property as determined by its estimated replacement cost, and required the estimated replacement cost to be charged against operating expenses. The company sued to enjoin the enforcement of the regulations. Held, that the regulations are proper. Kansas City Southern Ry. Co. v. United States, 34 Sup. Ct. 125.

For discussion of this case, see NOTES, p. 369.

RAILROADS - LIABILITY FOR DAMAGE TO ANIMALS-CATTLE RUNNING AT LARGE. - The plaintiff's horse was killed by one of the defendant's trains in a district where cattle might lawfully run at large. The jury found that the train was operated negligently, and that cattle were reasonably to be expected upon the unenclosed right of way. Held, that the plaintiff may recover. Houston, etc. R. Co. v. Garrett, 160 S. W. 111 (Tex.).

Many states in the South and West have held inapplicable to their conditions the common-law rule which required the owner of cattle to keep them at his peril from trespassing upon the land of another. Wagner v. Bissell, 3 Ia. 396; Pace v. Potter, 85 Tex. 473, 22 S. W. 300. See INGHAM, LAW OF ANIMALS, 265 et seq. In these jurisdictions, in the absence of local regulations, the owner of cattle is not liable for their trespasses on unenclosed lands. Morris v. Fraker, 5 Colo. 425. But it is well settled that cattle have no affirmative right to graze upon such lands. Harrison v. Adamson, 76 Ia. 337, 41 N. W. 34. It is also generally agreed, contrary to the assumption of the principal case, that although their owner is relieved from liability, the cattle are still trespassers for purposes of determining the landowner's obligations. Beinhorn v. Griswold, 27 Mont. 79, 69 Pac. 557; Corbett v. Great Northern Ry. Co., 19 N. D. 450, 125 N. W. 1054. Cf. Hurd v. Lacy, 93 Ala. 427, 428, 9 So. 378. The landowner, therefore, is not bound to keep his premises in safe condition for cattle running at large. Herold v. Meyers, 20 Ia. 378; Hughes v. Hannibal, etc. R. Co., 66 Mo. 325. But even to trespassing animals the landowner owes a duty not to inflict intentional harm. Campbell v. Great Western Ry. Co., 15 U. C. Q. B. 498. He owes a further duty to exercise reasonable care to avoid active injury to them after their presence is discovered. Herrick v. Wixom, 121 Mich. 384, 81 N. W. 333. Contra, Maynard v. Boston & Maine R. Co., 115 Mass. 458. Many courts extend this duty to situations where the presence of trespassers is reasonably to be anticipated. Bullard v. Southern Ry. Co., 116 Ga. 644, 43 S. E. 39; Whelan v. Baltimore & Ohio R. Co., 70 W. Va. 442, 74 S. E. 410. For the same reasons of policy that dictated the repudiation of the common-law rule of liability for trespassing animals, this latter view is peculiarly suitable in states devoted to grazing, and its application to the facts of the principal case would justify the decision even though the animal was trespassing.

SALES - ESSENTIAL ELEMENTS OF SALE - MUTUUM: WHETHER A SALE WITHIN LOCAL OPTION LAWS. – The defendant was convicted of selling liquor in prohibition territory. The alleged purchaser secured a quart of whiskey from him which he later repaid by returning a like quantity. Held, that the judgment be affirmed. Veach v. State, 159 S. W. 1069 (Tex. Crim. App.).

The transaction in the principal case is a mutuum, the exchange of one chattel for another of similar nature. It is not a bailment, for under the common-law view the transferee acquires title when his obligation is not to return the specific thing but one like it. South Australian Ins. Co. v. Randell, 6 Moore's P. C. N. S. 341; see Foster v. Pettibone, 7 N. Y. 433, 435. It is true that a bailment can be created without a right to regain the specific article, provided some continuous right in rem is retained, as where grain is mingled in a common mass in a warehouse. Ledyard v. Hibbard, 48 Mich. 421. But in the principal case the defendant transferred the whiskey outright and retained no such right in rem. Granting, then, that there was a transfer of property by the defendant, the question remains whether it was a sale within a statute providing punishment for "whoever shall sell intoxicating liquor." TEXAS PENAL CODE, Art. 402. Such has been held a sale in Massachusetts. Howard v. Harris, 8 Allen (Mass.) 297. A later civil statute in Texas making it illegal to "sell, exchange, or give away" liquor in dry territory supports the above interpretation of the criminal statute. SAYLE'S TEXAS CIVIL STATUTES, Art. 3396. Barter is likewise held a sale within the Statute of Frauds. Franklin v. Matoa Gold Min.

Co., 158 Fed. 941. A transfer of personalty for other personalty than money may not constitute a sale for every purpose. See Thornton v. Moody, 24 S. W. 331, 333 (Tex.). But the sort of transaction indulged in by the defendant in the principal case falls within the intended prohibition of the local option laws, and the decision seems correct.

STATUTE OF FRAUDS SUFFICIENT MEMORANDUM SIGNED BY DEFENDANT ONLY. The memorandum of a contract for the sale of grain was signed by the vendor, but not by the vendee, who seeks to enforce it. The Idaho statute of frauds provides that such an agreement is invalid, unless the same or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent." REV. CODES, IDA., § 6009. Held, that the plaintiff, not having signed himself, may not recover. Kerr v. Finch, 135 Pac. 1165 (Ida.).

Both this decision and the one it follows are admittedly against the great weight of authority. Kerr v. Finch, supra, 1165; Houser v. Hobart, 22 Ida. 735, 127 Pac. 997. The provision in question is practically § 17 of the Statute of Frauds (St. 29 Car. II, c. 3). The same question arises where it is sought to charge a vendee when he but not the vendor has signed. Old Colony R. Corp. v. Evans, 6 Gray (Mass.) 25; Mason v. Decker, 72 N. Y. 595; so too where the subject matter is realty. Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979; Richards v. Green, 23 N. J. Eq. 536. The overwhelming majority of cases construes the "party charged" to mean the one sued on the agreement. Schneider v. Norris, 2 M. & S. 286; Bristol v. Mente, 79 N. Y. App. Div. 67, affirmed 178 N. Y. 599; Morrison v. Browne, 191 Mass. 65, 77 N. E. 527; Harper v. Goldschmidt, 156 Cal. 245, 104 Pac. 451. Idaho and Michigan, however, find a fatal want of mutuality under these circumstances. Houser v. Hobart, supra; Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139. This view patently overlooks the fact that the statute concerns the proof, and not the existence, of the bargain, for the memorandum does not constitute the contract, but only evidences it. Thayer v. Luce, 22 Oh. St. 62; Charlton v. Columbia Real Estate Co., 67 N. J. Eq. 629, 60 Atl. 192. The court here, indeed, asserts that the local statute has changed the substantive law in this respect also. But it is submitted that the use by the legislature of words already construed almost everywhere to have a certain meaning, shows an intent to use the words in that sense. Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766. See Rhoads v. Chicago & Alton R. Co., 227 Ill. 328, 334, 81 N. E. 371, 373. The court's argument, that it is unjust to allow the holder of a signed memorandum to insist on or deny the contract as he chooses, should be addressed rather to the legislature.

TENANCY IN COMMON- CO-TENANT'S LIEN INFERIOR TO A PRIOR MORTGAGE LIEN. Prior to a partition suit by one tenant in common the other co-tenant mortgaged his undivided share. Held, that the mortgagee's lien on this undivided share of the land was superior to the co-tenant's lien on that share for his portion of the rents and profits collected. Knecht v. Knecht, 58 Oh. L. Bull. 680.

A tenant in common holds the legal title to an undivided share of the property. See I TIFFANY, REAL PROPERTY, § 163. Consequently a mortgage by one will attach only to the mortgagor's undivided share. See Bigelow v. Topliff, 25 Vt. 273, 286. It is unsettled whether one co-tenant has a lien for rents and profits on the other co-tenant's share of the land. Some courts deny any lien whatsoever. Vaughan v. Langford, 81 S. C. 282, 62 S. W. 316; see cases collected in 17 AM. & ENG. ENCYC. 697. But, on the other hand, a few jurisdictions do recognize an equitable lien. Hannan v. Osborn, 4 Paige (N. Y.) 336; Beck v. Kallmeyer, 42 Mo. App. 563; Arnett v. Munnerlyn,