previously either at law or in equity. Barring modern changes or developments in the substantive law, then, any given set of facts should give rise to the same ultimate remedy under the code as before, the change effected by the code being for the purpose of unifying and simplifying the means of obtaining redress rather than to allow more or less or different relief.2

In Golde Clothes Shop v. Loew's Buffalo Theatres, 236 N. Y. 465 (1923), the plaintiff, a lessee for years, brought an action of ejectment to oust one who had bought the reversionary interest and had taken possession under summary proceedings, which possession had been sustained in the Supreme Court and in the Appellate Division under a term in the lease allowing the lessor or his vendee to terminate the lease under certain conditions, but had been declared wrongful by the Court of Appeals. During the course of the appeal the defendant, relying on his right to possession as established in the lower courts, had erected an expensive theatre covering an adjoining lot and part of the lot in question. These facts were relied on by the defendant as a defense to the action of ejectment because of the hardship he would suffer if shut out of an important part of his theatrean entrance, a connecting lobby and part of the orchestra, and because of the consequent balance of convenience in his favor. In both lower courts this defense was allowed, but the Court of Appeals, one judge dissenting, refused to allow it.

The decision of the Court of Appeals in the previous action had made it clear that the lease was still in binding effect. The lessee, then, had the exclusive right to possess and occupy the land for the remainder of the period of the lease. In this ejectment action he was merely seeking to enforce that substantive right in an action of common law origin.

The inapplicability of the defense relied upon becomes apparent when it is tested by comparing the result sought with the result that would have obtained before the code. Since hardship was an equitable defense, it could not have been used as a defense in the common law action of ejectment. Since it was, by the general rule, entirely defensive in nature, it could not have been used as a basis for affirmative equitable relief against the legal action by way of injunction. Before the code, then, the hardship could not be used to prevent the ejectment. Since the code affects only procedural, not substantive, rights, the same result should obtain now unless time and changed conditions have worked a change in the substantive law.

Cases are frequent where the courts have said to one seeking an injunction against a permanent trespass, "You are asking a relief equitable in nature, and thus within our discretion to give or with

121 C. J. 24. n. 39.

2Phillips v. Gorham, 17 N. Y. 270 (1858), 1 C. J. 1003, sec. 128, Hinton, Equitable Defenses under Modern Codes, 18 Mich. L. Rev. 717, Cook, Equitable Defenses, 32 Yale L. J. 645.

'Bond v. Murray, 118 Md. 445 (1912).

"Feldmeyer v. Werntz, 119 Md. 285 (1913), Dobson v. Pearce, 12 N. Y. 156 (1854); Carry v. Goodman, 12 N. Y. 266. (1855).

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hold. We choose to exercise that discretion against you where it appears that the relief asked will do you little good and will do the defendant much harm. In such a case we will leave you to your action for damages for the trespass as law."5 But in an action of ejectment the plaintiff is already at law. The relief he asks is not one discretionary in nature, but an absolute substantive right-one of that bundle of rights which together constitute his leasehold interest. To refuse to recognize that right would be to take away the plaintiff's property because another individual needs it more than he does. Hardship, or balance of convenience is not yet a ground for private eminent domain.7

Ejectment is a somewhat anomalous action. It might well have grown up as a branch of equity as it acts directly to remove the defendant from the plaintiff's property rather than by giving damages. On the basis of the result reached it is hard to differentiate it very clearly from an action to enjoin a continuing trespass. If, by a development of equity, the latter remedy is not allowed where the balance of equities is greatly in the defendant's favor, it would seem that the law of ejectment might logically be expected to have the same development. And in a case where B demanded the removal of A's wall which encroached on his land because of a mistake as to the boundary line, which mistake A and B had shared, it was held that the hardship was sufficient to allow an injunction to issue against B's demand in ejectment. The writer has not found any case allowing such an equitable defense against an action in ejectment where the only demand of the plaintiff was to be allowed to resume possession of his land. It is submitted that substantive law has not gone to that length. A can not, by building on B's land under mistake, exclude B from possession of the land, although he may not be forced to remove the encroaching building. If he wishes to continue occupation of the building he must have B's permission. If the building is of little value to B, that permission should be obtainable without great trouble or exorbitant expense.

In the instant case the defense of hardship was made more clearly untenable by the fact that the risk of loss was foreseen by the defendant, who built on the disputed land on the chance that his right to possession would be upheld on appeal. This fact would be enough to invalidate the defense even against a demand for equitable relief."

F. C. Root

532 C. J. 77, sec. 64. Wilkins v. Diven, 106 Kan. 283 (1920), commented on in 34 Har. L. R. 392. As to the extent of this defense see note, 9 CORNELL Law QUARTERLY 63.

"So at common law one who was defeated in an ejectment action could, as a matter of right, bring another ejectment action immediately, claiming under another fictitious demise, and thus try once more to establish his right to be put in possession of the land. 20 R. C. L. 318, sec. 102.

"Lewis, Eminent Domain (3d ed.) p. 494, n. 2.

Magnolia Constr. Co. v. McQuillan, 121 Atl. (N. J.) 734 (1923), noted in 33, Yale L. J. at p. 211.

Clark, Equity, sec. 170. See note on instant case in 33 Yale L. J. at p. 660, in which it is argued that this is the proper basis of the instant decision.

1

Equity: Specific performance of land contracts: Abatement for wife's inchoate dower right.-Whether, when he is otherwise entitled to specific performance against his vendor, a vendee under a land contract can have, in addition, compensation or abatement from the purchase price for the value of the inchoate dower right of the vendor's wife if she refuses to join in the conveyance is a question on which few states fully agree. All jurisdictions will probably allow specific performance in such a case without abatement, or with abatement if collusion between the vendor and his wife clearly appears. But it is as to the question of abatement, both whether to allow it at all and if so how to compute it, that the various states differ. On the first point they fall roughly into three groups-those allowing it as a matter of course where the usual equities are in the vendee's favor, i. e., a specifically enforceable contract and no knowledge on the vendee's part of the vendor's marriage; those like New Jersey seemingly, allowing it where there is some basis for working an estoppel against the wife; and those like Pennsylvania, not allowing it in any case except where collusion or fraud appears. New York seems to be in the first class, and there are a number of cases supporting such decisions as that in Kupferberg v. Beatty and Wife, 122 Misc. (N. Y.) 217 (1923). In that case, Cropsey, J., held that the vendee might have specific performance of a land contract with abatement from the purchase price for the value of the wife's inchoate dower right. He says little about how it is to be computed. However, from what he infers in this case, and says more directly in other cases, and

18 Col. L. Rev. 309; L. R. A. 1917 F 598. 2Rost v. Kremin, 139 N. E. (Ill.) 111, 113 (1923); Ford v. Street, 106 S. E. (Va.) 379 (1921).

Gordon v. Tweedy, 74 Ala. 232 (1883); Martin v. Merritt, 57 Ind. 34 (1877); Leach v. Forney, 21 Ia. 271 (1866); Noecker v. Wallingford, 133 Ia. 605, 611 (1907). Cf. Butler v. Butler, 132 N. W. (Ia.) 63 (1911), saying could not allow it because must leave the wife the option to take the one-third of the purchase price set aside for her or one-third of her husband's realty at his death, in accordance with statutory provision. Davis v. Parker, 96 Mass. 94 (1867); Sanborn v. Nockin, 20 Minn. 178 (1873); Jackson v. Edwards, 7 Paige (N. Y.) 386 (1839); Lucas v. Scott, 41 Ohio St. 636 (1885), but see Barnes v. Kristy, post, n. 5, contra; Wright v. Young, 6 Wis. 125 (1858).

Walker v. Kelley, 91 Mich. 212 (1892), allowed it although the plaintiff knew of the defendant's marriage; but this is out of line with the other cases and authority. 26 Am. & Eng. Ency. Law (2d ed.) 83; 6 Pom. Eq. Jur. 1369.

Stein v. Francis, 109 Atl. (N. J. Ch.) 737 (1919); Luczak v. Mariove, 112 Atl. (N. J. Ch.) 494 (1921); Binnis v. Smith, 115 Atl. (N. J. Ch.) 69 (1921). "Bride v. Reeves, 36 App. (D. C.) 476 (1911); Reilly v. Cullinane, 287 Fed. (D. C.) 194 (1923); Humphrey v. Clement, 44 Ill. 299 (1867); Rost. v. Kremin, supra, n. 2; Barnes v. Kristy, 131 N. E. (Ohio) 352 (1921); Reiz's Appeal, 73 Pa. 485 (1873); Graybill v. Brugh, 89 Va. 895 (1893); Ford v. Street, supra, n. 2. 'Jackson v. Edwards, supra, n. 2; Granoff v. Korpus, 182 N. Y. Supp. 136 (1919); Campione v. Eckert, Ibid., p. 137 (1920); Lewis v. Ludlam, 189 N. Y. Supp. 636 (1921); Feldman v. Lisansky et ux. 202 N. Y. Supp. 79 (1923).

Sternberger et al. v. McGovern, 56 N. Y. 12 (1874), refused the abatement on substantially the same reasons as the cases in note 5, supra, but admits the previous cases in New York (although the court and counsel seem to have quite overlooked Jackson v. Edwards, supra, n. 3) and distinguishes its decision on the ground that the contract there is for exchange and not sale of lands. "Granoff v. Korpus, supra, n. 6.

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from other New York decisions, it may be assumed he intended the present value of the inchoate dower to be figured as the value of an annuity in one-third of the realty, based on the difference in the then expectancy of the vendor and his wife as shown by the mortality tables, and this sum to be deducted from the purchase price. This seems one of the oldest and commonest ways in this country of computing the proper abatement in such cases. Another method is the former English practice of setting aside one-third of the purchase money, allowing the vendor to receive the interest on it during the joint lives of himself and his wife and the principal upon her decease, should he survive her; otherwise the interest to go to the wife after the vendor's death and the principal to go to the vendee at her death.10 Some cases satisfy themselves with protecting the vendee against the contingent dower interest of the wife by requiring the vendor to establish a bond to indemnify the vendee against possible loss from the vesting of the dower right;" others allow the vendee to show damage resulting to him from the pendency of the inchoate dower as a cloud on his title, the amount of such damages to be deducted from the purchase price and stand as a lien against the land in favor of the vendor should he survive his wife.12 In at least one case the New Jersey court ordered the inchoate dower of the wife figured as consummate as of the time of the decree and this amount deducted.13 But there would seem to be little that could be said in favor of this method, unless the court clearly intended to coerce the wife.

As to the question whether the courts should allow specific performance in these cases with abatement from the purchase price, there certainly seems much to be said on both sides. Pennsylvania seems the leading jurisdiction refusing to allow the abatement, and the reasons there advanced seem the usual and best founded ones against it, namely, that to allow it is indirectly to coerce the wife, which the court has no right or desire, on grounds of policy, to do; it substitutes a new contract between the parties, which also equity quite consistently refuses to do; and finally, the value of the inchoate dower right cannot be fairly computed. The first and third reasons appeal to the writer as having the most force. To allow abatement would certainly in all normal cases bring strong pressure

Particularly Jackson v. Edwards, supra, n. 3, p. 408; In re N. Y. and Brooklyn Bridge, 75 Hun (N.Y.) 558 (1894).

Gordon v. Tweedy, supra. n. 3; Wingate v. Hamilton, 7 Ind. 73 (1855); Hazelrig v. Hutson, 18 Ind. 48 (1862); Martin v. Merritt, supra, n. 3; Park v. Johnson, 86 Mass. 259 (1862); Davis v. Parker, supra, n. 3; semble, Wheeler v. Kirtland, 27 N. J. Eq. 534 (1875); Brown et ux. v. Brown et al., 78 S. E. (S. C.) 447 (1913); Wright v. Young, supra, n. 3; cases cited supra, n. 7, 8; 2 Geo. L. J. 40, and authorities there cited.

10Wilson v. Williams, 3 Jur. (N. S.) 810, 811 (1857). But inchoate dower was abolished in England by Act, 3 & 4 William IV, c. 105. Halsbury, The Laws of

England, vol. 24, sec. 366, p. 133. Parsons v. Liuza, 87 So. (Ala.) 801 (1920); Wood v. Price, 81 Atl. (N. J. Ch.) 664 (1910).

"Stein v. Francis, Luczak v. Mariove, supra, n. 4.

12Granoff v. Korpus, supra, n. 6.

13Stein v. Francis, supra, n. 4, p. 739.

14See Reiz's Appeal and other cases cited supra, n. 5.

to bear on the wife to join with her husband. She is coerced to sign off her right, and the domestic peace is ruptured. 15 And although the mortality tables will, by the law of averages, be approximately correct, and so a safe basis for insurance figures, they mean very little in individual cases, and abatement based on them is more than likely to be extremely unjust to the particular vendor. 16 On the other hand, it may be argued that the value of the right can thus be figured, so that in most cases it will be fair, and this being possible, specific performance and abatement of this amount from the purchase price should be allowed the vendee against a vendor who has represented himself as able to convey the whole fee, for to do otherwise would be to allow the vendor to profit by his own fault. At any rate, it may be said that although there may be strong reasons, and in a majority of jurisdictions precedents, for refusing the abatement, a majority of the recent cases raising the question seem to grant it.17

F. S. Wood.

Interstate Commerce: Time for bringing action: Looking to "cognate statute."-In South and Central American Commercial Co., Inc., Respondent v. Panama Railroad Co., Appellant, 237 N. Y., 287 (1923) the plaintiff sued the defendant to recover damages arising from the misdelivery of sugar. The sugar had been delivered to the defendant at Cristobal, Canal Zone, and transported by it to Hoboken, where the bags of sugar belonging to the plaintiff were confused with those of a different grade. A term of the bill of lading provided that notice of claim of loss must be given within sixty days after knowledge of loss, and action brought within sixty days thereafter. The plaintiff gave the preliminary notice but failed to bring his action within sixty days. The defense was the failure to comply with this provision. The plantiff insisted that the limitation was void under the Cummins Amendmentla to the Interstate Commerce Act, and that the contract could not govern. The court held that although the defendant was not subject to the provisions of the *Interstate Commerce Act, since it was a common carrier by water, still the standards of that statute should be considered in determining whether public policy permitted the enforcement of the contract. Looking at the Cummins Amendment, which allows institution of suit

15See note in 7 Mich. L. Rev. 333 substantially to this effect. 16Humphrey v. Clement, supra, n. 5, p. 301.

17See note in L. R. A., supra, n. 1, and cases cited supra, n. 4, 6, and 9.

Many of these later cases, particularly in New York and New Jersey, seem to be influenced considerably by the rapidly rising land values in and about New York City, and this fact and the resulting natural suspicion in the court's mind of collusion with the wife, even where it cannot be shown, undoubtedly have some effect on the decisions.

1Cardozo, J., writing the opinion and Pound, Crane and Andrews, JJ., concurring; Hiscock, Ch. J., Hogan and -McLaughlin, JJ., dissenting.

la Act of March 4, 1915, 38 Ŭ. S., Stat. at Large 1196, 97, which reads "That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suit than two years:"