62 HARVARD LAW REVIEW. Damages — Contracts — Anticipatory Breach. — Purchaser of a cargo "to arrive" repudiated the contract. Before its arrival, the seller brought suit, but did not sell elsewhere until after arrival. The market was steadily declining throughout this time. Held, that the difference between the contract price and the market value at the time of bringing suit (when the repudiation was acquiesced in) should be the measure of damages, as it was unreasonable for the seller to hold back the sale until the day fixed for delivery. Roth v. Jayser, 12 The Times L. R. 211. The decision is important ; it qualifies the general rule laid down in Roper . Johnson, L. R. 8 C. P. 167. The exact point here decided has not come up in jurisdictions of this country recognizing anticipatory breach. A contrary view is strongly expressed by the court in Kadish v. Young, 108 111. 170. In so far as the decision makes the time of acquiescence the basis with regard to which the jury are to assess damages, it seems sound, for such acquiescence should terminate the rights and liabilities of the parties with respect to the contract. But it seems open to criticism, in that it makes such rule applicable to those cases only in which the seller would be acting unreasonably in not selling before the day fixed for the delivery by the terms of the contract. Equity — Avoiding Deed — Duress. — Plaintiff's husband threatened that he would commit suicide unless plaintiff should execute a deed of her property to de- fendant to make good a sum embezzled from the defendant by the husband. Plaintiff executed the deed, and now asks that the defendant be compelled to reconvey to her. Held, one judge dissenting, that the husband's threats to commit suicide did not con- stitute duress. Girty v. Stattdard Oil Co., 37 N. Y. Supj). 369. The earliest notion of duress was peril of life or limb. In time it became the rule that such threats constituted duress as would put in fear a person of ordinary firm- ness ; and the courts generally follow that to-day. U.S. v. Hiukabee, 16 Wall. 423; Tiedeman on Real Prop., § 796, and cases cited. As the ground for allowing an instru- ment to be avoided for duress is that the maker did not exercise free will, it would seem that the mind of the particular person should be considered, regardless of what effect the threats might have had upon a person of ordinary firmness. 14 Am. Law Reg. 201. Evidence — Dying Declarations. — Held, that it was not error to admit a dying declaration to the effect that the prisoner had threatened to kill declarant, his wife, if she should leave him. People v. Bevei-ly, 66 N. W. Rep. 379 (Mich.). If dying declarations must relate to " the circumstances of the death," this statement was clearly inadmissible. In view of the fact that courts, during recent years, have so strictly limited and qualified this exception to the heresay rule, the correctness of this holding seems at least doubtful. People v. Davis, 56 N. Y. 95. In Hackett v. People^ 54 Barb. 370, statements of this character were excluded. Foreign Corporations — Right to do Business in State. — Where a foreign building and loan association has lent money on a mortgage in the State without complying with the statutory provisions relative to foreign corporations, held, that the mortgage may be foreclosed, but the recovery will be limited to principal and inter- est and taxes paid ; it will not include bonuses, premiums, and other dues as provided by its by-laws. Guarantee Co. v. Cox, 42 N. E. Rep 915 (Ind.). The case is novel, but seems right. The first point is covered by the decision in Elston V. Piggott, 94 Ind. 14, which allows recovery for money lent, though the transac- tion of business be prohibited. The second point is covered by the statute, the associa- tion having no authority to do a building and loan business in the State. Judgment — Administration — Collateral Attack. — Where A's land has been sold under a decree made at the instance of A's administrator, held, that A's chil- dren may attack the proceedings collaterally by showing that A did not in fact die till after the sale. Springer v. SJwvefider, 23 S. E. Rep. 976 (N C). While this decision is in accord with the great weight of authority {.«?ee Scott v. Mc- Neal, 154 U. S. 34, where the cases are collected), it is to be regretted that the other side of the question has not received more attention. In Roderigas v. Savings Inst., 63 N. Y. 460, it was held that the surrogate had power judicially to determine the fact of death, and his judgment could not be collaterally attacked. The correctness of this view has been ably maintained in 14 Am. Law Rev. 337, and in i Woerner on Adm., 208 et seq., where it is contended that jurisdiction in the surrogate to determine the fact of death is necessary to the exercise of his functions. See also dissenting opinion of F'reeman, J., in D' Arnement v. Jones, 4 Lea (Tenn.), 251. In Scott w. McNeal, supra, the exercise of this power on the estate of a living person was held to be depriving a man of his property without due process of law. Under a proper form of notice it does not seem to differ from taking an absent debtor's property by attachment. 22 Central
