v. Chipman, 8 Vt. 334; see Hallgarten v. Oldham, 135 Mass. 1, 9. It is submitted that the fact that the third person holds under a prior mortgage should not alter the result. See Wheeler v. Nichols, 32 Me. 233. The opinion in the principal case proceeds on the theory that the statute has the further aim of making the change of possession to the mortgagee notice of the specific claim under which possession was taken. But this view goes too far, since it would invalidate even a second unrecorded mortgage to the prior mortgagee in possession. The extent of the incumbrance can be discovered in the principal case as easily as in any case where the goods are in the hands of third parties, who hold for the mortgagees.

RESERVATION OF MORAL OBLIGATION

COMPOSITION WITH CREDITORS VALIDITY OF SUBSEQUENT PROMISE AFTER COMPOSITION. The defendant executed a composition with his creditors and reserved a secret moral obligation to pay the plaintiff in full, later making a promise to that effect. The plaintiff sues on the subsequent promise. Held, that the later promise is supported by consideration. Straus v. Cunningham, 144 N. Y. Supp. 1014 (App. Div.).

An agreement with two or more creditors for part payment in complete satisfaction of debts, validly discharges the old liabilities, substituting the new agreement. Warren v. Whitney, 24 Me. 561. Therefore a subsequent promise to pay the balance of the old debt is unenforceable, unless supported by present consideration. Stafford v. Bacon, 1 Hill (N. Y.) 533. Recovery is permitted in the principal case, however, on the ground that the moral obligation to pay debts in full is consideration for the new promise; that although the moral obligation, as in the above cases, does not ordinarily survive a voluntary discharge, it is preserved here by the express reservation. Taylor v. Hotchkiss, 81 N. Y. App. Div. 470, 80 N. Y. Supp. 1042. After a discharge in bankruptcy, even though the debt is extinguished, a promise to pay the original debt is binding. Bridgman v. Christie, 51 N. J. Eq. 331, 25 Atl. 939. Although variously explained, this exception would seem to rest on the ground that there is a public policy in holding the debtor to a reassumed liability, since he has obtained an involuntary discharge through operation of law. There would seem to be an equally strong policy in the case of composition agreements, for the creditors' consent is in effect coerced by their natural desire to escape a general struggle to appropriate the debtor's assets. The court, in distinguishing the present case on the ground that there was an express reservation, shows a tendency to reach this result and avoid the authority of the composition cases.

CONFLICT OF LAWS - RIGHTS AND OBLIGATIONS OF FOREIGN CORPORATIONS - ENFORCEMENT OF INDIVIDUAL LIABILITY OF CORPORATORS. — The defendant, a citizen of New York, agreed to subscribe to stock in a corporation which was to do business in California. The corporation was formed under the Arizona law, its charter expressly exempting the stockholders from personal liability. The charter provided for the carrying on of business in California. The corporation then contracted debts in California, where, by statute, shareholders in foreign corporations were made personally liable. The plaintiff, a California creditor, now sues the defendant stockholder in the federal courts of New York. Held, that the defendant is personally liable. Thomas v. Matthiessen, 34 Sup. Ct. 312.

For a discussion of the principles involved in the case, see NOTES, p. 575.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW TAKING PROPERTY OR REGULATING ITS USE FOR PUBLIC ESTHETICS. - A city ordinance prohibited the building of retail stores in residential sections without consent of a majority of the frontage owners. Held, that the statute is unconstitutional. People v. Chicago, 103 N. E. 609 (Ill.).

For an editorial note on whether property may be taken for public esthetics, either because of the police power or by eminent domain, see this issue of the REVIEW, p. 571.

- POWER TO PUNISH

CONTEMPT OF COURT DISOBEDIENCE OF INJUNCTION ORDERED BY APPELLATE COURT, REVERSING LOWER COURT. - A mandatory injunction having been refused by the lower court, the upper court decreed that an injunction issue. The defendants disobeyed this injunction before its formal adoption by the lower court. Held, that the lower court has jurisdiction to punish. Fortescue v. McKeown, [1914] 1 Ir. Ch. 30.

To obtain jurisdiction to enforce a final judgment rendered in an appellate court at law, the lower court must formally adopt it as its own. Clapper v. Bailey, 10 Ind. 160. But on appeal in equity the decree of the appellate court is as though rendered by the court below. The latter therefore has the same jurisdiction over subsequent proceedings as after its own decree. Sowdon v. Marriott, 2 Phil. 623; S. C. Flight v. Marriott, 12 Jur. 487. The appellate court should not be the one to punish the disobedience of its decree rendered on appeal. Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 124 Fed. 735. An injunction takes effect from the time ordered, and before the formal sealing of the writ. Rattray v. Bishop, 3 Madd. 220; Winslow v. Nayson, 113 Mass. 411, 420. And it is binding on a party who has actual notice, irrespective of formal entry or service. Hearn v. Tennant, 14 Ves. 136; Poertner v. Russell, 33 Wis. 193; Winslow v. Nayson, supra, 420. See also Daniel v. Ferguson, [1891] 2 Ch. 27, 29. Since in the principal case the defendant's knowledge of the order appears unquestionable, the lower court clearly had power to punish, and its refusal on jurisdictional grounds was error. However, in the absence of formal service, the lower court should be sure that there is actual notice of the order. Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., supra, 736. And since the failure to obey a mandatory injunction generally results only in a continuance of the status quo, to refuse to punish until formal service, which can be easily procured, would seem well within the court's discretion. Disobedience of a restraining order is obviously different.

CORPORATIONS - TORTS AND CRIMES - LIABILITY FOR LARCENY.-The Tyson Ticket corporation purchased, on behalf of a customer, two season tickets for the Metropolitan Opera at New York. It then pledged these tickets to secure a loan to itself. Held, that the corporation may be convicted of larceny. People v. Tyson & Company, Inc., 50 N. Y. L. J. 1829 (City Magistrates' Ct., N. Y., Jan., 1914).

If allowed to stand, this will be the first conviction of a corporation for felony. As such, it is opposed by two modern decisions. Commonwealth v. Punxsutawney Street Passenger R. Co., 24 Pa. Co. Ct. 25; Queen v. Great West Laundry Co., 13 Manitoba, 66. But four earlier cases hold corporations liable for misdemeanors involving criminal intent. State v. Eastern Coal Co., 29 R. I. 254, 70 Atl. 1; United States v. John Kelso Co., 86 Fed. 304; Grant Bros. Construction Co. v. United States, 13 Ariz. 388, 114 Pac. 955; United States v. McAndrews & Forbes Co., 149 Fed. 823. The cases argue that since a corporation is liable for wilful torts of its agents, therefore its agents' criminal intent must be "imputed" to a corporation charged with crime. Green v. London General Omnibus Co., 7 C. B. N. S. 290; Reed v. Home Savings Bank, 130 Mass. 443. But the ground of civil responsibility in the cases cited is not that an actual malicious intent is "imputed" to the corporation. Every master is liable for his agents' wilful torts committed in an attempt to accomplish the purposes of the employment, on grounds wholly independent of the master's state of mind. Bergman v. Hendricksen, 106 Wis. 434, 82 N. W. 304; see I CLARK & SKYLES, AGENCY, § 493. Yet clearly he is not held for his servant's crimes

- where a criminal mind is an essential element unless he has personally participated. Commonwealth v. Nichols, 10 Metc. (Mass.) 259; see I CLARK & SKYLES, AGENCY, § 520. It must follow that corporations can be held for such offenses only by applying respondeat superior to them where it does not apply to individuals, or else by treating the acts of its governing officers as the personal acts of the corporation itself. No court has ever expressly adopted the first alternative, and it cannot be justified unless as seems doubtful the law fails to apply respondeat superior to all crimes merely out of tenderness to innocent human employers. See Commonwealth v. Wachendorf, 141 Mass. 270, 271, 4 N. E. 817, 818. But there is reason to think that the second alternative is the law. The Supreme Court holds corporations liable in exemplary damages for the torts of their "officers," but not for those of their "agents.” Denver & Rio Grande Ry. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286; Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261. A few other cases hold that corporations act per se through their officers. American Soda Fountain Co. v. Stolzenbach, 75 N. J. L. 721, 68 Atl. 1078; Bank of Toronto v. McDougall, 15 U. C. C. P. 475. This idea seems sensible. Abandoning the notion that a corporation is an ideal being and treating it simply as an organization of men, the officers by which that organization acts appear as integral parts of the corporation, and their official acts as the immediate acts of the corporation itself. See 21 HARV. L. REV. 535. Apparently some regular officer was concerned in every crime involving an evil intent of which a corporation has yet been convicted. It is believed that these decisions are correct in result and represent an unconscious adoption of the principle which the Supreme Court has applied to the case of exemplary damages.

CRIMINAL LAW EFFECT OF UNAUTHORIZED POSTPONEMENT OF EXECUTION. After legally sentencing the petitioner to two years' imprisonment, the trial court illegally gave him his liberty on condition that he leave the state. After two years he returned. Held, that he must serve the original sentence. Ex parte Lujan, 137 Pac. 587 (N. Mex.).

Illegal delay in sentencing one convicted permanently deprives the court of its jurisdiction to pronounce sentence. People v. Barrett, 202 Ill. 287, 67 N. E. 23; United States v. Wilson, 46 Fed. 748. Some courts have given like effect to illegal postponement of execution of sentence, after the time the sentence should have expired if served. In re Webb, 89 Wis. 354, 62 N. W. 177; Ex parte Clendenning, 1 Okla. Cr. 227, 97 Pac. 650. The cases seem clearly distinguishable. A valid sentence having been imposed, the prisoner is illegally at large. Sentence is not satisfied when the prisoner is at liberty after escape. Dolan's Case, 101 Mass. 219. Nor when liberty is due to the neglect of the sheriff. Miller v. Evans, 115 Ia. 101, 88 N. W. 198. There seems to be no reason for distinguishing the illegal act of the court. And the principal case is supported by authority. Fuller v. State, 1 Miss. 811, 57 So. 806; Neal v. State, 104 Ga. 509, 30 S. E. 858.

COVENANTS RUNNING WITH THE LAND COVENANTS IN SUPPORT OF AN EASEMENT - AFFIRMATIVE COVENANTS IN EQUITY. — A. granted land to B. with an easement to take power from a water wheel on A.'s adjoining land. A. also covenanted to construct and maintain a shaft from the wheel to B.'s land. The plaintiff, the grantee of B., sought enforcement against A.'s grantee. Held, that the defendant is bound as to the easement but not as to the covenant. Miller v. Clary, 103 N. E. 1114 (N. Y.).

The New York courts have previously held that an affirmative covenant runs with the land in equity if it is such as can be enforced according to the ordinary rules of specific performance. See 14 HARV. L. REV. 301. This has been the prevailing American view. See 22 HARV. L. REV. 597. The

English authority, which the principal case expressly follows, is contra. Ibid. But covenants in support of an easement according to the American view run at law as well as equity. Denman v. Prince, 40 Barb. (N. Y.) 213; see 23 HARV. L. REV. 298. The principal case, therefore, not only overrules the earlier cases as to affirmative equitable servitudes, but adopts the English view that an easement does not make sufficient privity of estate to permit the burden of a covenant to run at law.

INSURANCE CONSTRUCTION AND OPERATION OF CONDITIONS — EFFECT OF TEMPORARY BREACH NOT CONTRIBUTING TO LOSs. - The insured in his application agreed not to engage in the business of handling electric wires and dynamos for one year following the date of the policy. The policy expressly made the application a part of the contract of insurance. The insured did enter the business during the year, and his death occurred while so engaged after the expiration of the year. Held, that the beneficiary may recover. Edmonds v. Mutual Life Insurance Co., 144 N. W. 718 (S. D.).

The breach of a material representation or a warranty as to a present fact, though not contributing to the loss, avoids an insurance policy. McGowan v. Supreme Court of Independent Order of Foresters, 104 Wis. 173, 80 N. W. 603;' Johnson v. Maine & New Brunswick Ins. Co., 83 Me. 182, 22 Atl. 107. The same rule applies to the breach of a condition or promissory warranty continuing to the time of the loss. Norwaysz v. Thuringia Ins. Co., 204 Ill. 334, 68 N. E. 551; Hill v. Middlesex Fire Ins. Co., 174 Mass. 542, 55 N. E. 319. Contra, Joyce v. Maine Ins. Co., 45 Me. 168. Likewise the policy is void if the breach existed from the outset even if it ceased before and had no causal connection with the loss. Georgia Home Ins. Co. v. Rosenfield, 95 Fed. 358. When such a temporary breach, however, arises after the issuance of the policy, there is a conflict of authority. The English courts hold that the policy is void. De Hahn v. Hartley, 1 T. R. 343; Birrell v. Dryer, 9 A. C. 345; STAT. 6 EDW., VII, c. 41, § 34 (2). The better American view is in accord. Douglas v. Knickerbocker Life Ins. Co., 83 N. Y. 492; Moore v. Phoenix Ins. Co., 62 N. H. 240; Kyte v. Commercial Union Ins. Co., 149 Mass. 116, 21 N. E. 361. Many cases apparently holding that the policy is merely suspended are distinguishable because the policy expressly so provided or no real breach occurred. Union Life Ins. Co. v. Hughes' Adm'r., 110 Ky. 26, 60 S. W. 850; Kircher v. Milwaukee Mutual Ins. Co., 74 Wis. 470, 43 N. W. 487. But some courts clearly hold with the principal case. Sumter Tobacco Co. v. Phoenix Ins. Co., 76 S. C. 76, 56 S. E. 654; Insurance Co. of North America v. Pitts, 88 Miss. 587, 41 So. 5. As the application in the principal case was incorporated as a part of the insurance contract, its promises become warranties in the policy. Mutual Life Ins. Co. v. Kelly, 114 Fed. 268. The effect then is the same as if the policy expressly provided for forfeiture on a breach by the insured. Brignac v. Pacific Mutual Life Ins. Co., 112 La. 574, 36 So. 595. The view in accord with the principal case, therefore, disregards the stipulations of the contract and causes the insurance to be continued on a different basis from that intended. A statute rather than judicial legislation seems the proper way to prevent forfeiture in such cases, if that be desired. See HOWELL'S MICH. STATS. § 8348; Iowa CODE, § 1743.

INTERSTATE COMMERCE - CONTROL BY Congress — FEDERAL EMPLOYERS' LIABILITY ACTS EMPLOYEES PROTECTED BY ACT. - The plaintiff's intestate, a locomotive fireman, had prepared his engine for a trip between two points within a state, the train containing cars which had just arrived from another state. While on the company's premises, but before the journey had actually begun, the deceased was run over and killed. The accident was due to the negligence of a fellow servant. Action was brought, but not in proper form for

recovery under the Federal Employers' Liability Act. Held, that the deceased was engaged in interstate commerce. North Carolina R. Co. v. Zachary, 34 Sup. Ct. 305.

The plaintiff was assisting in the repair of a railway locomotive, which was regularly used in interstate commerce, but had been under repair for three weeks. Due to the negligence of a fellow servant, the plaintiff was injured, and sued the defendant company under the Federal Employers' Liability Act. Held, that the plaintiff was engaged in interstate commerce within the terms of the act. Law v. Illinois Cent. R. Co., 208 Fed. 869 (C. C. A., 6th Cir.).

The Federal Act of 1908 abolishes the fellow-servant rule for employees of a railroad engaged in interstate commerce, while themselves engaged in such commerce. 35 STAT., 65, c. 149. Just when an employee is so engaged is a difficult question. Whether the work in question was part of the interstate commerce in which the carrier was engaged was suggested as a test by the majority of the court in Pederson v. Delaware, L. & W. R. Co., 229 U. S. 146, 152. An employee has been held within the act when on the employer's premises but before actually beginning work. Lamphere v. Oregon R. & N. Co., 196 Fed. 336. In the first of the principal cases, the employee had already begun work. An employee piloting an engine to a track where it will be attached to an interstate train is engaged in interstate commerce. Norfolk & W. Ry. Co. v. Earnest, 229 U. S. 114. That the deceased was likewise engaged seems clear. The opinion is also authority for the proposition that hauling empty. cars from one state to another is interstate commerce. This is in harmony with dicta as to the Safety Appliance Act. See Johnson v. Southern Pac. R. Co., 196 U. S. 1, 21; Voelker v. Chicago, M. & St. P. Ry. Co., 116 Fed. 867, 874. Likewise a caretaker of a dead engine on an interstate journey was held to be within the protection of the Liability Act. Atlantic, etc. R. Co. v. Jones, 63 So. 693 (Ala. Ct. App.). Finally the Supreme Court answers in the affirmative the question as to whether an employee when injured must bring his action under the federal statute. See THORNTON, EMPLOYERS' LIABILITY AND SAFETY APPLIANCE ACTS, § 19. The second case also seems correct. Workmen engaged in repairs on roads and bridges have been held within the act. Pederson v. Delaware, L. & W. Ry., supra; Zikos v. Oregon R. & N. Co., 179 Fed. 893; Central R. Co. of N. J. v. Colasurdo, 192 Fed. 901. Contra, Taylor v. Southern Ry. Co., 178 Fed. 380. Temporary repairs on a car engaged in interstate service are treated in the same way. Darr v. Baltimore & O. R. Co., 197 Fed. 665. If the instrumentality has never been used in interstate commerce the act could be held not to apply. But once in, it seems hard to find a point where the engine or car, because of temporary withdrawal, loses its interstate character. The same result is reached in Northern Pac. Ry. Co. v. Maerkle, 198 Fed. 1. Heimbach v. Lehigh Valley R. Co., 197 Fed. 579, contra, depends upon Pederson v. Delaware, L. & W. R. Co., 197 Fed. 537, since overruled by the Supreme Court decision, supra. See 26 HARV. L. REV. 354.

LANDLORD AND TENANT CONDITION OF PREMISES-LESSOR'S LIABILITY TO GUEST IN LEASED HOTEL. The defendant was owner of a hotel and leased it for one year. At the time of the lease there was a concealed defect in the elevator of which the defendant should have known in the exercise of due care. The lessee, knowing of the defect, continued to operate the elevator in its defective condition. The plaintiff, a guest at the hotel, was injured as a result of this defect. Held, that the defendant is liable. Colorado Mortgage & Investment Co. v. Giacomini, 136 Pac. (Col.) 1039.

In the absence of an express agreement the lessor does not warrant the condition of the premises. Bowe v. Hunking, 135 Mass. 380; Towne v. Thompson, 68 N. H. 317, 44 Atl. 492. But the landlord is bound to warn the tenant against