that private reports of the financial standing of a third person, made to one having an interest in the matter, are privileged. Fahr v. Hayes, 50 N. J. L. 275, 13 Atl. 261; Richardson v. Gunby, 88 Kan. 47, 48, 127 Pac. 533, 534. See King v. Watts, 8 C. & P. 614, 615. And it follows that such communications by an agent to his principal are privileged. Bohlinger v. Germania Ins. Co., 100 Ark. 477, 140 S. W. 257; Mead v. Hughes, 7 T. L. R. 291. Since the defendant may be considered as the agent of the subscriber, the principal case is easily explained. But since a profit-making agency is just as truly the agent of the subscriber, the English rule imposing liability on such a company is an anomaly in the law of libel which may be justified only by the modern tendency to impose on businesses dangerous to life, property or reputation, the risks incidental to their operation. The distinction taken by the English courts is analogous to that between a private, gratuitous surety and a surety company. See 29 HARV. L. REV. 314. MASTER AND SERVANT ASSUMPTION OF RISK-STATUTORY ABROGA TION: EFFECT ON DEFENSE OF CONTRIBUTORY NEGLIGENCE. A New York statute abrogates the defense of assumption of risk, but leaves unaltered the defense of contributory negligence. (BIRDSEYE, CON. LAWS OF N. Y. 202, p. 1624.) The plaintiff, a longshoreman, sues under this statute, for injuries sustained by a fall from an obviously insecure and unsafe ladder, which had been furnished him as the only means of descending into the hold where he was working. Held, that the plaintiff may be barred on account of contributory negligence if found to have used the ladder carelessly, but not on account of the fact that he used it at all. Maloney v. Cunard Steamship Co., 54 N. Y. Law Jour. 2067 (Court of Appeals). The defenses of contributory negligence and assumption of risk, though frequently confused, are fundamentally distinct. See 49 L. R. A., 49, note. For assumption of risk bars the employee on the ground, that by his acquiescence he has either waived or negatived the employer's negligence-while contributory negligence bars him because his action or inaction contrary to the standard of the ordinary prudent man, was a contributing cause of the injury. See Bohlen, "Voluntary Assumption of Risk," 20 HARV. L. REV. 14, 17, 18. Still the two defenses are frequently concurrent. Thus the mere use of an appliance which is so dangerously defective that the ordinary reasonable man would refuse to use it at all, will bar the employee on both grounds. See Narramore v. Cleveland, etc. Ry. Co., 96 Fed. 298, 304; Bradburn v. Wabash R. Co., 134 Mich. 575, 579, 96 N. W. 929, 931. Hence, in the principal case, even though the defense of assumption of risk has been removed, a narrow construction of the statute would allow the jury to refuse recovery to the plaintiff merely because he used the ladder. But as it is inconceivable that a legislature would intend to abrogate the defense that an employee, by encountering his employer's negligence, has waived it, and yet bar the employee on the ground that he was contributorily negligent in encountering it; a broader reading of the statute, by which the defense of contributory negligence in so far as it is based on the mere use of a dangerous appliance is impliedly removed, is clearly more desirable. MASTER AND SERVANT WORKMEN'S COMPENSATION ACTS - MEASURE OF COMPENSATION GENERAL FALL IN WAGES DISTINGUISHED FROM Loss IN EARNING CAPACITY THROUGH ACCIDENT. A workman was partially incapacitated. The Massachusetts act provides that in case of partial incapacity the workman is to be paid "one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter." (1911, MASS. STAT. c. 751, pt. 2, § 10.) Before the accident he was earning $22 a week; now he is able to earn only $13.20. The Industrial Board found that if he had not been injured he would earn $19.40 in the present state of the labor market, but that if the labor market had held constant he would now earn $15 with the handicap of his injury. He was awarded $8.80, the difference between his past and his present wages. Held, that the award be modified to $7, the difference between his past wages and what he would be earning now if it were not for the fall in the labor market. In re Durney, 111 N. E. 166 (Mass.). The British Workmen's Compensation Act (6 Edw. 7, c. 58, sched. 1, § 3), wherein the difference between past and present wages is set as a maximum, to be awarded in full only when proper in the circumstances, has been held to contemplate a compensation only for a diminution in earning power through an injury, not through a decline in the labor market. Merry & Cuninghame v. Black, 46 Scot. L. R. 812, 2 B. W. C. C. 372. See Cardiff Corporation v. Hall, [1911] 1 K. B. 1009, 1018, 1026, 4 B. W. C. C. 159, 168; Dobby v. Wilson Pease Co., 2 B. W. C. C. 370, 371. Cf. Thompson v. Johnson, [1914], 3 K. B. 694, 7 B. W. C. C. 479; Jamieson v. Fife Coal Co., 40 Scot. L. R. 704. In spite of the unqualified language of the statute in the principal case, to apply the theory developed by the English courts is more in accord with the fundamental purpose of workmen's compensation. And because of their essentially remedial nature, their fundamental purpose should be made operative by a liberal construction. See Ryalls v. Mechanics' Mills, 150 Mass. 190, 193, 22 N. E. 766, 767; Colorado Milling, etc. Co. v. Mitchell, 26 Colo. 284, 287, 58 Pac. 28, 30. See 28 HARV. L. REV. 307, 308. Thus, in the principal case, since the difference between the plaintiff's actual past wages and his actual present wages includes a slump in the labor market, that difference should not be made the basis of compensation, but either the scale of wages at the time of injury, or at the time of recovery, should be used throughout the computations. As the use of either basis is equally violative of the literal language of the act, and as the difficulty of estimating the average labor market for the entire period of compensation demands the selection of a market at a single arbitrary time, the rule of the principal case would seem the more natural. But cf. Bevan v. Energlyn Colliery Co., [1912] 1 K. B. 63, 5 B. W. C. C. 169. And, though the purpose of the act is not to indemnify for injury, since it aims to measure the relief given to a workman of any particular standard on the basis of the full loss occasioned by the injury regardless of extrinsic occurrences, when the scale of wages has risen, the labor market should be equalized just as when it has fallen. But cf. Pomphrey v. Southwark Press, [1901] 1 Q. B. 86, 3 W. C. C. 194; Irons v. Davis & Timmins, [1899] 2 Q. B. 330, 1 W. C. C. 26. However, the fact that the present English act, after providing for the modification of awards to accord with what is proper in the circumstances, expressly sets the actual loss in wages as a maximum, may afford a distinction in this respect. TION. -- PARTITION RIGHT OF TENANT UNDER "OIL LEASE" TO COMPEL PARTI- A tenant in common of certain land, purporting to be the sole owner, granted the exclusive rights to search for and take away oil and gas, together with all other rights reasonably necessary to do this. In order that he may exercise his rights upon his grantor's share of the land the grantee now sues the co-owners to compel a partition in kind. This the pleadings admit will be just. Held, that the suit is not maintainable. Gulf Refining Co. of La. v. Hayne, 70 So. 509 (La.). The common law rule is that no one but the holder of a legal estate in possession can compel partition in his own right. See FREEMAN, CO-TENANCY AND PARTITION, 2 ed., § 446; I TIFFANY, REAL PROPERTY, § 175. The provisions of the Louisiana code as to partition are conflicting. See LA. REV. CIV. CODE, Art. 740, 1310. Under the civil law partition may be compelled by any obligee of a co-owner. See CODE NAPOLÉON, Art. 1166. See 34 CARPENTIER ET DU SAINT, RÉPERTOIRE DU DROIT FRANÇAIS, 149 (No. 766). Now it is generally held that an "oil lease" merely gives title to the minerals when severed, together with rights in the nature of an easement. Gulf Refining Co. of La. v. Rives, 133 La. 178, 62 So. 623; Heller v. Dailey, 28 Ind. App. 555, 560, 63 N. E. 490, 493; Beardsley v. Kan. Nat. Gas Co., 78 Kan. 571, 574, 96 Pac. 859, 860. See THORNTON, OIL AND GAS, 2 ed., §§ 51, 57 a. Hence, at common law, the grantee under such a lease could not compel partition in his own right. Watford Oil and Gas Co. v. Shipman, 233 Ill. 9, 84 N. E. 53. But cf. Charleston, etc. R. Co. v. Leech, 33 S. C. 175, 11 S. E. 631. It is submitted, however, that the interest created is really a profit à prendre. Cf. Caldwell v. Fulton, 31 Pa. St. 475; Muskett v. Hill, 5 Bing. N. Cas. N. C. 694. See WASHBURN, EASEMENTS AND SERVITUDES, 4 ed. *9, *80. Though a profit is a legal estate in the land, it is doubtful whether the holder of it can demand partition in his own right. The grantee under an 'oil lease" should, however, be allowed to compel partition through his grantor since partition is reasonably necessary to make the grant effective. The decree for partition would be, in effect, specific performance of the grantor's covenant, followed by the latter's suit for partition. Cf. Charleston, etc. R. Co. v. Leech, supra; Mee v. Benedict, 98 Mich. 260, 57 N. W. 175; Heaton v. Dearden, 16 Beav. 147. However, in both common law and civil law jurisdictions the courts will generally refuse to partition in kind, land on which oil is actually known to exist, since it is presumed that such partition would be unjust. Dangerfield v. Caldwell, 151 Fed. 554, 558. See THORNTON, OIL AND GAS, 2 ed., § 277; LA. Rev. CIV. CODE, § 1303. But that such a partition would be just is admitted by the pleadings in the principal case. However, to grant any partition in the principal case would involve the objection of partitioning the payment to the grantor, who contracted to convey the profit à prendre from the entire tract of land. -- - A tug PROXIMATE CAUSE - - INTERVENING CAUSES - NATURAL FORCES. under contract to tow stone-barges to and from a breakwater was disabled by a defective rudder. The barges were left in an exposed position, so that when the wind changed several hours later, one of them was sunk. But for the accident the barges would not have remained thus exposed. The owner brings a libel against the tug. Held, that the breaking of the rudder was the proximate cause of the loss. The Enterprise, 132 Fed. 131, 133 (Dist. Ct., Dist. of Conn.). A carload of household goods was negligently delayed by the carrier, and several days later was injured in transit by an unprecedented flood which could not reasonably have been foreseen. But for the delay, the goods would not have been overtaken by the flood. The shipper sues the carrier. Held, that the delay was not the proximate cause of the injury. Seaboard Air Line Ry. v. Mullin, 70 So. 467 (Fla.). The intervention of a new force does not make a cause remote if that force was foreseeable. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 473; Carter v. Towne, 98 Mass. 567; Pastene v. Adams, 49 Cal. 87. This would be decisive of the Federal case if at the time of the defendant's negligence, a shift in the wind and its consequences were foreseeable. It is submitted that a defendant may even be liable for unforeseeable results of his negligence. Smith v. London, etc. R. Co., 6 C. P. 14. See I BEVAN, NEGLIGENCE, 3 ed., 88; Jeremiah Smith, "Legal Cause in Actions of Tort," 25 HARV. L. REV. 103, 123, 223, 237, 303. But a defendant cannot be held merely because the injury 1 would not have happened but for his negligence. Schoultz v. Eckardt Mfg. Co., 112 La. 568, 36 So. 593. A defendant is liable, however, if his negligence precipitate an unstable equilibrium though it was unknown and the result unforeseeable. State v. O'Brien, 81 Ia. 88,; Hill v. Winsor, 118 Mass. 251. So also, if his act substantially coöperate with an active force, even though that force be unforeseeable. Romney Marsh v. Trinity House, L. R. 5 Ex. 204; New Brunswick Steamboat, etc. Co. v. Tiers, 24 N. J. Law 697. But if an independent unfore seeable force intervene, and the defendant's act serve merely to put the plaintiff or his property in its path, the defendant's act should not be considered a proximate cause of the result. Gilman v. Noyes, 57 N. H. 627; Bush v. Commonwealth, 78 Ky. 268. Thus the decision of the Florida case would seem to be right, and is supported by the weight of authority. Rodgers v. Missouri Pacific Ry. Co., 75 Kans. 222. Contra, Green-Wheeler Shoe Co. v. Chicago, etc. Ry. Co., 130 Ia. 123. REAL PROPERTY ADVERSE POSSESSION - TACKING PRIVITY. - The defendant owns a tract of land adjoining the plaintiff's. For over thirty years the defendant and his predecessors in title have held adversely a small strip of the plaintiff's land, though no one of them has held for the statutory fifteen years. In none of the conveyances through which the defendant holds was there any mention of the disputed strip, nor is there any evidence of an agreement concerning it between these successive holders. The plaintiff brings trespass to try title. Held, that title was not acquired by adverse possession. Lake Shore & Michigan Southern Ry. Co. v. Sterling, 155 Ñ. W. 383 (Mich.). It is generally accepted that for the purpose of acquiring title a disseisor may tack to his own adverse possession that of his predecessor. Overfield v. Christie, 7 S. & R. (Pa.) 173. See 2 TIFFANY, REAL PROPERTY, § 438. But the great weight of authority, regarding the statute as a protection of ownership that has been openly asserted for the period set, from suits on remote and possibly fictitious claims, demands that the adverse claim be a continuation of that of the predecessor-that there be "privity" between the disseisors. See Sherin v. Brackett, 36 Minn. 152, 153, 30 N. W. 551. A few courts, in defining privity, require a continuous paper title to the disputed land sufficient to have transferred it had the grantor held title. Evans v. Welch, 29 Colo. 355, 363, 68 Pac. 776, 779; Vicksburg, etc. Ry. Co. v. Le Rosen, 52 La. Ann. 192, 203, 36 So. 854, 860; Messer v. Hibernia, etc. Soc., 149 Cal. 122, 124, 84 Pac. 835, 837. But generally any agreement, oral or written, between the successive holders touching the land is held sufficient, but essential. McNeely v. Langan, 22 Oh. St. 32; Weber v. Anderson, 73 Ill. 439, 443. If the disputed strip was held as a part of another tract to which the successive possessors had title, some courts, as in the principal case, refuse to spell out the necessary agreement touching the disputed strip from the mere transfer of the tract owned by the predecessor. Erck v. Church, 87 Tenn. 575, 11 S. W. 794; Sheldon v. Mich. Cent. Ry. Co., 161 Mich. 503, 126 N. W. 1056. Other courts do find an agreement between the parties from this mere transfer. Crispen v. Hannavan, 50 Mo. 536, 549; Davock v. Nealon, 58 N. J. L. 21, 32 Atl. 675; Illinois Central R. Co. v. Hatter, 207 Ill. 88, 96, 69 N. E. 751, 753. A few courts, looking rather at the owner's continuous laches than at the possessor's continuous claim, have discarded the doctrine of privity, barring the true owner whenever there has been a continuous adverse possession for the statutory period. Fanning v. Wilcox, 3 Day (Conn.) 258; Wishart v. McKnight, 178 Mass. 356, 360, 59 N. E. 1028; Carter v. Bernard, 13 Q. B. 945, 952. See 9 HARV. L. REV. 279. RECORDING AND REGISTRY LAWS TORRENS' LAND REGISTRATION SYSTEM RIGHTS OF PURCHASER OF AN OVERLAPPING CERTIFICATE.- The plaintiff registered his land under the Torrens' system. Later an adjoining owner registered his land, the plaintiff having actual notice of the proceedings. The adjoining owner obtained a certificate which included a wall also included in the plaintiff's certificate. The adjoining owner sold to the defendant, a purchaser for value. The plaintiff now seeks to reopen the later decree, and have the defendant's certificate reformed, claiming that the wall belongs to him. Held, that the decree will be reopened. Legarda v. Saleeby, 13 Phil. Off. Gaz. 2117 (Phil. Sup. Ct.). For a full discussion of the principles involved, see NOTES, p. 772. SPECIFIC PERFORMANCE GENERAL NATURE AND SCOPE OF EQUITABLE RELIEF PLAINTIFF'S DELAY WHERE TIME IS EXPRESSLY OF THE ESSENCE. The plaintiff contracted to buy land from the defendant for $16,000. Of this $1,000 was to be paid down and the remainder paid in $1,000 annual installments. The agreement expressly provided that time was of the essence and that on any default, the whole sum should be due, or the contract determined at the option of the vendor, any payments made to be retained as liquidated damages. The first deferred installment was not paid on the day. The defendant at once gave notice that the contract was determined. Thereupon the plaintiff tendered the amount due, which was refused. He now sues in chancery for relief. Held, that he will be relieved from forfeiture of the money paid, but be denied specific performance. Steedman v. Drinkle, [1916] A. C. 275. How far equity shall ignore the plaintiff's delay in the face of a provision that time is essential depends upon balancing desiderata. On the one hand, the exigencies of business require the uniform enforcement of precise rules concerning contracts. In the name of this principle startling forfeitures have been allowed in this country and Canada. Steele v. McCarthy, 1 Sask. 317, 7 W. L. R. 902; Iowa, etc. Land Co. v. Mickel, 41 Ia. 402; Heckard v. Sayre, 34 Ill. 142; Brown v. Ulrich, 48 Neb. 409, 67 N. W. 168. Cf. Pound, "Decadence of Equity,' 5 COL. L. REV. 20. On the other hand, a purchaser under a contract to buy land generally acquires an equitable estate analogous to that of a mortgagor, and to divest him of it because of a slight delay is inequitable forfeiture, even though his money is returned. Accordingly other American cases have refused to enforce harsh provisions as to time literally. Ewing v. Gordon, 49 N. H. 444, 460; Hall v. Delaplaine, 5 Wis. 206, 216; Steele v. Branch, 40 Cal. 3, 11; Edgerton v. Peckham, 11 Paige 352. A condition precedent to a right to a legal title is not generally a condition precedent to the vendor-purchaser relationship out of which the equitable estate arises. But this point appears to have been overlooked at times. Wells v. Smith, 2 Edw. Ch. 78; Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 55 Pac. 713. See POMEROY, EQUITY, § 455. In no case should a court of equity be concluded by a bare recital that time is essential, but should look to the underlying intention of the parties in regard to creating a vendor-purchaser relationship. See FRY, SPECIFIC PERFORMANCE, 3 ed., 492. However, if one party actually needs quick performance and the other knows it, there is no difficulty. Judd v. Skidmore, 33 Minn. 140, 22 N. W. 183; Ewing v. Crouse, 6 Ind. 312; Tilly v. Thomas, 3 Ch. App. 61. The English law was originally lenient in enforcing time provisions, but Lord Eldon began to apply more rigid rules which were followed. See Boehm v. Wood, 1 J. & W. 419, 420; Levy v. Lindo, 3 Meriv. 81, 84. Accord, Eaton v. Lyon, 3 Ves. 689; Hudson v. Bartram, 3 Madd. 440, 447. See 27 HALS. LAWS OF ENGLAND, 67. However, in 1873 a reaction toward liberality set in, specific performance being granted after default in spite of express provision that time was of the essence and that on default the vendors might repossess themselves of the land without obligation to repay the purchase money. In re Dagenham Dock Co., 8 Ch. App. 1022; Kilmer v. British, etc. Lands, Ltd., [1913] A. C. 319; Snell v. Brickles, 49 Can. S. C. 360; Whitla v. Riverview Realty Co., 19 Man. 746. But the first two of these cases failed to recognize the severability of relief against forfeitures of installments and the granting of specific performance. See Snell v. Brickles, supra, 382; Labelle v. O'Connor, 15 Ont. L. R. 519, 546. The principal case, recognizing this distinction, reaches a result not perhaps unjust in view of the early breach and the absence of excuse offered, but indicates a tendency to revert to Eldonian strictness in regard to specific performance. STATUTE OF FRAUDS SALES OF GOODS - GOODS IN POSSESSION OF VENDEE AT TIME OF SALE. A number of shares of stock in the possession of a pledgee, were orally sold to him by the pledgor. Thereafter the pledgee stated |