contribution, since the person sued for contribution has already had an opportunity to litigate the question. See Lawrence v. Stearns, 79 Fed. 878; Love v. Gibson, 2 Fla. 598. The same reasoning requires that the defendants be allowed to take advantage of the former finding that the relation of co-surety did not exist. Cross v. Scarboro, 6 Boxt. (Tenn.) 134; Ledoux v. Durrive, 10 La. Ann. 7. Contra, Koelsch v. Mixer, 52 Oh. St. 207, 39 N. E. 417.

RESTRAINT OF TRADE COMBINATION OF OWNERS OF SEPARATE COPYRIGHTS TO FIX RESALE PRICE- EFFECT OF COPYRIGHT STATUTE. - The publishers of many copyrighted books combined to boycott all jobbers and booksellers who should not maintain the net prices of copyrighted books fixed by the individual members of the combination. Held, that there is an illegal restraint of trade. Straus v. American Publishers' Association, 34 Sup. Ct. 84. This decision limits in another way the powers granted by the copyright and patent statutes to control copyrighted and patented articles after they have been sold. The holder of a copyright cannot limit the resale price by notice to the purchaser. Bobbs-Merrill v. Straus, 210 U. S. 339, 28 Sup. Ct. 722. The rights of a patentee are similarly restricted. Bauer & Cie v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616. See 27 HARV. L. REV. 73. The public policy against restraints on the alienation of chattels is in such cases apparent. See 26 HARV. L. REV. 640. By a decision which seems out of harmony with the spirit of these decisions, the Supreme Court has held, however, that a patentee may by notice require that a patented article should be used only with certain unpatented goods. Henry v. A. B. Dick Co., 224 U. S. 1, 32 Sup. Ct. 364. On the other hand, contracts between the owner of a copyright or patent and with retailers, not to resell the copyrighted or patented articles below a certain price, have been held good in the lower courts. See 26 HARV. L. Rev. 640; 19 HARV. L. REV. 125. Single contracts are obviously not objectionable but the legality seems doubtful when there is a system of agreements to limit the resale price. That such agreements by patentees are not protected by the patent statute has been suggested by the Supreme Court. Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 33 Sup. Ct. 9. See 25 HARV. L. REV. 454. It is broadly stated in the principal case that the patent and copyright statutes are not intended to authorize agreements in restraint of trade. Probably the same reasoning would be applied to hold improper a system of agreements to control the resale price in the case of patented or copyrighted articles as in the case of goods made under a secret process. See Dr. Miles Medical Co. v. Park & Sons, 220 U. S. 373, 31 Sup. Ct. 376. See 24 HARV. L. REV. 244, 680. In holding that combinations by owners of several separate copyrights to control the retail prices of the copyrighted article are not protected by the copyright statute, the principal case seems clearly right. For a further discussion of the principles involved, see 19 HARV. L. REV. 125.

RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO THE USE OF PROPERTY - WHERE THE RELATION OF "DOMINANCY" AND "SERVIENCY" IS LACKING. The plaintiff conveyed a certain lot in fee, the grantee covenanting for himself, his heirs and assigns, not to erect any flat or tenement building thereon within a period of twenty years. The covenantor later assigned the land to the defendant with notice, but without restrictions. At no time did the plaintiff own any land in the neighborhood aside from that conveyed. The defendant having started to construct an apartment house, the plaintiff seeks an injunction. Held, that the injunction be granted. Van Sand v. Rose, 103 N. E. 194 (Ill.). The court proceeds on the ground of enforcing an equitable servitude created by virtue of the restrictive covenant. There is no doubt that when adjoining lands are intended to be benefited, a restrictive covenant is enforceable against an assignee with notice. Tulk v. Moxhay, 2 Phillips 774. But this

is strictly an equitable doctrine. See London, etc. Ry. Co. v. Gomm, 20 Ch. D. 562, 583. And it is a fundamental equitable principle that equity will not enforce a burden where there is no benefit derived. For example, equity refuses to specifically enforce a contract where no substantial benefit would result. Miles v. Dover, etc. Iron Co., 125 N. Y. 294, 26 N. E. 261. So if the covenants in the principal case are considered as running with the land in equity, there being no benefit, they should not be enforced. But it seems that the effect of such restrictive covenants is rather to create an equitable property right, for when the right is once recognized damages are immaterial. Peck v. Conway, 119 Mass. 546. Yet if so considered, the same result follows, for it would clearly be unjust and contrary to sound policy to create a property right to satisfy a mere whim of a stranger. Where originally the adjoining lands were benefited, but due to a change in the neighborhood the benefit ceases, equity refuses to enforce the burden. Jackson v. Stevenson, 156 Mass. 496. A fortiori, where no adjoining land ever existed, equity should not recognize a property right at all. Nor is this analogous to an easement in gross at law, where these are permitted, for there a right of beneficial user is created in the quasi-dominant owner, while here no benefit whatever can be derived. It is submitted that there must be some physical or financial benefit to the neighboring lands or the covenantee's business, i. e., some relation of "dominancy" and "serviency," or the covenant is only personal and collateral. See Formby v. Barker, [1903] 2 Ch. D. 539, 552. The authorities also are conclusive against the holding of the principal case. Dana v. Wentworth, 111 Mass. 291; Formby v. Barker, supra; Rector v. Rector, 135 N. Y. App. Div. 501, 114 N. Y. Supp. 623.

SALES - EXPRESS WARRANTIES - WHAT CONSTITUTES. - The plaintiff leased of the defendant a farm, together with all the implements upon it. Amongst the latter was a traction engine, in regard to which the defendant said before the lease was executed, “You have nothing to do but to flop the fly wheel and away she goes." The plaintiff sues for breach of warranty, basing his claim to an express warranty solely upon this statement. Held, that he may recover. Tocher v. Thompson, 26 West. L. Rep. 288 (Manitoba Ct. App.).

A recent decision in the House of Lords established for England the rule that an express warranty cannot arise without a distinct collateral agreement, including an offer to warrant by the vendor and acceptance by the vendee. Heilbut v. Buckleton, [1913] A. Č. 30. For a criticism of this view, see article by Professor Williston in 27 HARV. L. REV. 1. The principal case, coming as it does from a Canadian jurisdiction, is interesting because while announcing the test of Heilbut v. Buckleton, it in fact grants recovery on what the American authority would treat as merely an affirmation of fact that induces the sale. See 21 HARV. L. Rev. 555 ff. The court decided the case as though it were purely one of sale, although the actual transaction was a long-term bailment of the traction engine. It is submitted, however, that this should make no difference, and that whatever constitutes an express warranty in the law of sales should apply equally to the law of leases of chattels. It has long been clear that the bailor of a chattel for a specific purpose is subject to the rules of implied warranty. Jones v. Page, 15 L. T. Rep. N. S. 619.

SALES -STOPPAGE IN TRANSITU-EFFECT OF ATTORNMENT BY BAILEE. Upon the insolvency of the vendee, a number of claims for stoppage in transitu were entered for goods held by the U. bleachery, an independent concern. On one lot, the goods before the sale had been bleached and held for the vendor and no notice of the sale had reached U. On another lot the goods were held as in the first case, but the vendee had given a delivery order to U., received delivery of part, and U. held the remainder subject to the vendee's order. On

a third lot, the vendor sold unbleached goods to the vendee and delivered to U., who put them in the vendee's name, and according to a previous arrangement with the vendee bleached at the vendee's direction and expense, and delivered a part. Held, that the right of stoppage in transitu continued on all the lots. In re Poe Manufacturing Co., 80 S. E. 194 (S. C.).

The decision on the first claim is clearly correct. If a bailee without notice of the sale holds goods for the vendor, the latter's lien may be exercised, as the goods remain in his constructive possession. M'Ewan v. Smith, 2 H. L. Cas. 309; In re Batchelder, 2 Low. 245, 2 Fed, Cas. No. 1099. After the bailee is notified to deliver to the purchaser, the right of stoppage in transitu exists until the bailee attorns to the buyer. Rowe v. Pickford, 8 Taunt. 83; Norfolk Hardwood Co. v. New York Central & H. R. R. Co., 202 Mass. 160, 88 N. E. 664. The partial delivery of the second lot suggests attornment, but is not conclusive. Ex parte Cooper, 11 Ch. D. 68. But attornment appears in the bailee's holding the remainder subject to the vendee's order. Guilford v. Smith, 30 Vt. 49. As to the third lot, the bailee by previous agreement held subject to the buyer's directions from the very start. Cf. Scott v. Pettit, 3 B. & P. 469; In re Batchelder, supra. The bailee was under a duty also to bleach the goods. A bailee's additional duty to the purchaser other than carriage is such an attornment as to end the transit. See Bethel v. Clark, 20 Q. B. D. 615, 617; Harris v. Pratt, 17 N. Y. 249, 263; WILLISTON, SALES, 8524; 23 HARV. L. REV. 142. This has been applied where the extra duty was forwarding elsewhere. Norfolk Hardwood Co. v. New York Central & H. R. R. Co., supra. The duty to bleach seems a fortiori such a submission to the purchaser as to terminate the vendor's rights.

SPECIFIC PERFORMANCE-NEGATIVE CONTRACTS CONTRACT TO BUY BEER FROM PLAINTIFF ONLY. The defendant contracted to buy from the plaintiff all the beer used in the defendant's saloon for a certain period, and not to buy from any one else. The contract contained a provision for liquidated damages. The plaintiff seeks to enjoin the defendant from buying of any other dealer. Held, that the injunction will not be granted. Bartholemae & Roesing Brewing Co. v. Modzelewski, 47 Nat. Corp. Rep. 686 (Ill. App. Ct.).

The question of enforcing a negative contract in regard to land has usually arisen in connection with restrictions that are really equitable servitudes. In such cases no damage would be necessary for relief. The plaintiff is protected by some courts because the covenant will not run at law. Catt v. Tourle, 4 Ch. App. 654. The better theory is that the servitude is a property right, a forced sale of which would be unjust. (See criticism, in this issue of the Review, of the Illinois case of Van Sand v. Rose, 103 N. E. 194, 27 HARV. L. REV. 494.) Such a servitude could be imposed on the defendant's business as well as on his land. Wilkes v. Spooner, 27 T. L. R. 157. It is, however, the intent of the parties that creates these servitudes, as inferred from the agreement and the surrounding circumstances. Peck v. Conway, 119 Mass. 546. As the court in the principal case points out, no such intent is apparent here, so there is no servitude, but a mere negative contract. The adequacy of the legal remedy is therefore important. The damage that will be caused the plaintiff by the defendant's buying from competitors will exceed the damage from the mere loss of the sale, and will be purely conjectural. The presence of a provision for liquidated damages will not prevent specific performance. Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419. It is therefore submitted that the injunction should have been granted.

THEATRES

RIGHTS OF TICKET HOLDER.

The plaintiff, during the course of a moving picture performance, for which he had purchased a reserved seat, was ejected from the defendant's theatre, with no unnecessary force. He brings

an action for assault and battery. Held, that the plaintiff may recover. Hurst v. Picture Theatres, Ltd., 30 T. L. Rep. 98 (K. B. Div., Nov. 18, 1913).

By the purchase of his ticket the plaintiff gets no legal property right; for there is no intention to create a lease, and it does not seem that the possession is of such a nature as to create this interest. Wood v. Leadbitter, 13 M. & W. 838. Cf. White v. Maynard, 111 Mass. 250; Hancock v. Austin, 14 C. B. N. S. 634. Contra, Drew v. Peer, 93 Pa. 234. The ticket holder has a license to enter the theatre and remain there. But since it is not coupled with an interest, it is revocable at the will of the licensor, although consideration has been paid. On revocation the licensee becomes a Hewlins v. Shippam, 5 B. & C. 221. trespasser. Ruggles v. Lesore, 24 Pick. (Mass.) 187. But, in a jurisdiction like that of the principal case, where there is a fusion of law and equity, if the plaintiff's license gives him a right of which equity will take cognizance it would seem enough to defeat the defendant's justification for the ejectment. See SALMOND, TORTS, 3 ed., p. 247. But obviously no equitable servitude can be imposed by this contract, even though the requisite intent to create it be admitted. The contract neither imposes a restriction, nor is there any property to which the benefit of the servitude could attach. Dana v. Wentworth, III Mass. 291. Also specific performance of the contract, as such, would be denied under these facts, because of the substantial adequacy of legal damages and the trivial nature of the contract. Carter v. Ferguson, 58 Hun (N. Y.) 569. Since a theatre, although licensed by the state, is not a public service company, no tort liability can be based on the mere failure to perform the affirmative duty undertaken. Purcell v. Daly, 19 Abb. N. C. (N. Y.) 301. The court therefore seems to have erred in permitting recovery in tort.

TITLE, OWNERSHIP, AND POSSESSION POSSESSION RIGHT OF ADVERSE - The POSSESSION TO RECOVER DAMAGES FOR PERMANENT DEPRECIATION. plaintiff, in adverse possession of land, seeks to recover for permanent injuries caused by the defendants' diverting a watercourse. Held, that the plaintiff cannot recover. La Salle County Carbon Coal Co. v. Sanitary Dist. of Chicago, 103 N. E. 175 (Ill.).

The better view seems to be that one in adverse possession of land has title as regards all the world except the true owner. Consistently with this view, the early English statutes of limitations protected the possessor negatively, by barring the right of the true owner. See LIGHTWOOD, POSSESSION of Land, p. 153. Moreover, the policy of the law was to safeguard possession as such. See POLLOCK & MAITLAND, HISTORY OF THE ENGLISH LAW, Vol. II, p. 42. And this is believed to be the true basis of the theory of "tacking interests" by successive possessors. See 3 HARV. L. REV. 322. In recognition of this view, an adverse possessor is allowed to have ejectment against any one not claiming under the outstanding title. Asher v. Whitlock, L. R. 1 Q. B. 1; contra, Doe d. Carter v. Barnard, 13 Q. B. 945. See 20 HARV. L. REV. 563. It is also well settled that an adverse possessor may have trespass against third parties. Reed v. Price, 30 Mo. 442; Frisbee v. Town of Marshall, 122 N. C. 760, 30 S. E. 21. As between the owner and one in possession, the latter is the proper plaintiff to bring trespass. Campbell v. Cushman, 4 U. C. Q. B. 9. If the land is held adversely, the true owner cannot have trespass. Cook v. Foster, 7 Ill. 652; Ruggles v. Sands, 40 Mich. 559. But in the case of a permanent injury there is a possibility that the true owner may reëstablish his possession and sue. Consequently, to allow the adverse possessor to recover for permanent depreciation might lead to a double recovery against the trespasser. This practical difficulty could be met by requiring the damages to be paid into court, to be held for the true owner until the statutory period had run. See 20 HARV. L. REV. 563. It seems, therefore, that the adverse possessor should recover for permanent injuries. The authorities, however, support the view of the prin

cipal case. Anderson v. Thunder Bay River Boom Co., 57 Mich. 216, 23 N. W. 776; Winchester v. City of Stevens Point, 58 Wis. 350, 17 N. W. 3. Contra, Cobb v. Illinois & St. L. R. & Coal Co., 68 Ill. 233.

UNFAIR COMPETITION

- INTERFERENCE WITH MAKING OF CONTRACT WHEN JUSTIFIED — INTERFERENCE INCIDENTAL TO GENERAL Restraint of TRADE. A carpenter's union consistently refused to handle any lumber manufactured in an "open shop." Plaintiff, an "open shop" manufacturer, seeks to enjoin this boycott so far as it affects his product. Held, that no injunction will issue. Paine Lumber Co., Ltd., v. Neal, 50 N. Y. L. J. 1497 (U. S. D. C., So. Dist. of N. Y., November, 1913).

For a discussion of some phases of the "secondary boycott," see NOTES, p. 478.

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USURY

PURGING OBLIGATION OF THE TAINT OF USURY EFFECT OF NEW CONSIDERATION. - To secure an usurious loan, the defendant placed on his land a first mortgage, which by the statute of usury was a valid lien only to the amount actually lent. In consideration of the surrender of this security and the permission to place a large first mortgage on the land, the defendant gave to the plaintiff a second mortgage which still secured a sum larger than that actually, lent and executed a release of all claims for usury taken. plaintiff sues to foreclose this second mortgage. Held, that he is entitled to a decree for the full amount secured, without deductions for usury. Blohm v. Hannan, 88 Atl. 622 (N. J.).

The

It is well settled that the taint of an originally usurious obligation affects all securities in the form of notes and mortgages into which the usurious element can be traced. Cobe v. Guyer, 237 Ill. 568, 86 N. E. 1088; Nicrosi v. Walker, 139 Ala. 369, 37 So. 97. By mutual agreement, of course, the parties may exclude all usurious items from the transaction and substitute a new security covering only the amount lawfully due. Vermeule v. Vermeule, 95 Me. 138, 49 Atl. 608; Phillips v. Columbus City Building Ass'n, 53 Ia. 719, 6 N. W. 121; Sanford v. Kunz, 9 Ida. 29, 71 Pac. 612. Such an arrangement may even validate the original securities. Warwick v. Dawes, 26 N. J. Eq. 548. Contra, Miller v. Hull, 4 Den. (N. Y.) 104. So long as usurious elements remain, however, the mere intervention of new obligors or obligees does not remove the taint. Bridge v. Hubbard, 15 Mass. 96; Fitzpatrick v. Apperson's Executrix, 79 Ky. 272. But a renewal of the original security given to a holder for value without notice is held to be purged of usury. Cuthbert v. Haley, 8 T. R. 390; Kent v. Walton, 7 Wend. (N. Y.) 257. The authorities also generally agree that the taint of usury will not extend to an obligation founded upon new consideration, unless the arrangement is a device to evade the statute of usury. Thus a new loan subsequent to a bona fide payment of the usurious debt will be free from usury. Hoopes v. Ferguson, 57 Ia. 39, 10 N. W. 286. Cf. Shinkle v. First National Bank of Ripley, 22 Oh. St. 516. And the usury does not affect a new security given to the usurer by one who has contracted with the debtor to pay the debt. Scott v. Lewis, 2 Conn. 132; Cramer v. Lepper, 26 Oh. St. 59. Cf. Smith v. Young, 11 Bush. (Ky.) 393. See WILLISTON'S WALD'S POLLOCK, CONTRACTS, 275. But the surrender of the usurious obligation as between the original parties could not be new consideration within this rule without practically nullifying the statute of usury. King v. Perry Ins., etc. Co., 57 Ala. 118. In the principal case, however, the subordination of the original mortgage appears to satisfy the conception of new consideration, and the decision is undoubtedly correct.

WATERS AND WATERCOURSES RIGHT TO FLOWAGE.

- FLOOD WATERS - NON-RIPARIAN OWNER'S The defendant erected an embankment on its land and thus cut off water which, during flood times, overflowed from a watercourse