terim injunction. Kekewich, J., was of opinion that the contract of the defendant to give his whole time was in effect an express contract not to give his time to any one else than the plaintiffs, and he granted an injunction restraining the defendant from giving less than his whole time to the plaintiffs; but the court of appeal (Lindley and Kay, L. JJ.), were clearly of opinion that Montague v. Flockton, 16 Eq. 189, in which an injunction had also been granted in the absence of an express negative agreement, had proceeded on an erroneous view of Lord St. Leonard's decision in the well-known case of Lumley v. Wagner, 1 D. M. & G. 604. The conclusion of the court of appeal was not only that there was no express negative contract, but that there was not even an implied one which could be enforced by injunction.

NOTES OF RECENT DECISIONS.

SALE-PRICE FIXED BY TRADE COMBINATION.-In Lovejoy v. Michels, 49 N. W. Rep. 901, the Supreme Court of Michigan decide that in an action for knives sold and delivered without any express agreement as to price, a price fixed by a combination of all the knife manufacturers in the United States, including the sellers, formed for the express purpose of controlling the price of the articles manufactured by themselves, is not entitled to rank as the "market price" of the knives, binding on the purchaser, and he may show that the price so fixed is unreasonable. Champlin, C. J., says, inter alia:

In executed contracts of sale upon credit, where the price is not agreed upon at the time of sale, the law implies an understanding to pay what the commodity is reasonably worth. 1 Benj. Sales, p. 102, § 85. In Acebal v. Levy, 10 Bing. 376, the declaration alleged that the plaintiff had sold to the defendants a cargo of nuts, at a certain value, namely, the then usual and common shipping price for nuts at the port where the cargo was shipped, and that in consideration thereof defendants undertook and faithfully promised to accept the said nuts, and pay the plaintiff for the same on delivery thereof to the defend.nts. The declaration then alleged that the usual and common shipping price and value of the nuts at the port of shipment was at a certain rate, naming it; and that they were ready to deliver, and offered to deliver, the nuts to the defendants, but they refused to accept. In deciding the case, Chief Justice Tindal said: "Whether, in all cases of executory contracts of purchase and sale, where the parties are altogether silent as to the price, the law will supply the want of any agreement as to the price by inferring that the parties

must have intended to sell and to buy at a reasonable price, may be, a question of some difficulty. Undoubtedly, the law makes that inference where the contract is executed by the acceptance of the goods by the defendant, in order to prevent the injustice of the defendant taking the goods without paying for them. But it may be questionable whether the same reason applies to a case where the contract is executory only, and where the goods are still in the possession or under the control of the seller." And he further says: "A contract to furnish a cargo at a reasonable price means such a price as the jury upon the trial of the case shall, under all the circumstances, decide to be reasonable. This price may or may not agree with the current price of the commodity at the port of shipment at the precise time when such shipment is made. The current price of the commodity may be highly unreasonable, from accidental circumstances, as on account of the commodity having been purposely kept back by the vendor himself, or with reference to the price at other ports in the immediate vicinity, or from various other causes." This case is cited and approved in James v. Mair, 33 Mich. 223. The principle underlying the decision is that the vendor cannot be permitted, by withholding the commodity from market or otherwise, to fix the current price of the commodity, and thus fasten upon the purchaser an implied agreement to pay such price. If the plaintiffs in this suit, by combining with other manufacturers or dealers, can thus arbitrarily establish the current price of the commodity sold, and if the purchaser can be held to have impliedly promised or agreed to pay the price so established, it follows that he may be obliged to pay a highly unreasonable price. I do not think a price so fixed by a combination of manufacturers or dealers is competent evidence to show a reasonable price of goods sold by the members of such combination. Such combinations to control prices are intended to stifle competition, which is a stimulus of commercial transactions, and to substitute therefor the stimulus of unconscionable gain, whereby the participants in such combinations become enriched at the expense of the consumer, beyond what he ought legitimately to pay, under a healthy spirit of competition in the business community. The effect of such combinations to control prices is the same as that other class of contracts which has always been denounced as vicious, namely, contracts in restraint of trade. Public policy places its reprobation upon one equally with the other. These combinations to control prices are becoming very numerous, and affect, not only the staples of human sustenance, but nearly all the necessaries of life and the necessaries of business. Such combinations to control prices are against public policy, and void, on the ground that they have a mischievous tendency, so as to be injurious to the best interests of the State. The best interests of the State require that all legitimate business should be open to competition; that the current price of commodities should be controlled by the law of demand and supply; that the laws of commerce should flow in their accustomed channels, and should not be diverted by combinations to control prices fixed by the arbitrary decision of interested parties. Of course, what is said above does not apply to monopolies authorized by law; as, for instance, to patented articles. The odious features of illegal monopolies are plainly apparent. These can absolutely control the prices which the public shall pay, and it is this monopolistic feature of such combinations to control prices which stamps them as odious, because they exercise the franchises of the monoply without the legal right. These views

are supported in the following cases: Anderson v. Jett, 89 Ky. 12 S. W. Rep. 670; Railroad Co. v. Closser, (Ind. Sup.) 26 N. E. Rep. 159; People v. Refining Co., 7 N. Y. Supp., 406; Richardson v. Buhl, 77 Mich. 632, 43 N. W. Rep. 1102; Carbon Co. v. McMillin, 119 N. Y. 46, 23 N. E. Rep. 530; Stanton v. Allen, 5 Denio, 434; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, Arnot v. Coal Co., 68 N. Y. 558; Salt Co. v. Guthrie, 35 Ohio St. 666; Association v. Koch, 14 La. Ann. 168; Denver, etc., R. Co. v. Atchison, etc., R. Co., 15 Fed. Rep. 650; Hilton v. Eckersley, 6 El. & Bl. 47; West Va. Trans. Co. v. Ohio River Pipe-Line Co., 22 W. Va. 600, 617; W. U. Tel. Co. v. American Union Tel. Co., 65 Ga. 160; Craft v. McConoughy, 79 Ill. 346; Raymond v. Leavitt, 46 Mich. 447, 9 N. W. Rep. 525; Faulds v. Yates, 57 Ill. 416; Wright v. Ryder, 36 Cal. 342.

I have no doubt that in executory contracts of sale, where the goods have not been accepted, such price so fixed cannot be recovered; and I am also of opinion that such price so fixed is no criterion of the market value or current price in an action brought for goods sold him and delivered, where no price has been agreed upon. In this case the goods have been ordered and accepted without any reference to the price to be paid. The law presumes that defendant intended to pay what the knives were reasonably worth. As pointed out in James v. Muir, 33 Mich. 223, the market value and the reasonable worth of a commodity are not always the same. Ordinarily the market value is evidence of what goods are reasonably worth. Kountz v. Kirkpatrick, 72 Pa. St. 376, 386; Benj. Sales, p. 103, § 86. If there be no market value of manufactured goods, the evidence to establish the reasonable worth must necessarily be the cost of production, which would include the cost of labor and material, and a reasonable profit on the cost of production. The testimony must be submitted to the jury, and it is their province to determine from such testimony the reasonable worth of such goods.

CONSTITUTIONAL LAW - Ex POST FACTO LAWS-INDICTMENT BY GRAND JURY.-In Re Wright, 27 Pac. Rep. 565, the Supreme Court of Wyoming interestingly review the question of ex post facto laws. The constitution of that State provides that "the right of trial by jury shall remain inviolate in criminal cases;" that "hereafter a grand jury may consist of twelve men, but that the legislature may change, regulate or abolish the grand jury system;" and that "until otherwise provided by law, no person shall for a felony be proceeded against criminally otherwise than by an indictment." It was held in the above case that Sess. Laws Wyoming, 1890-91, entitled "An act to change and regulate the grand jury system,” etc., and providing, among other things, that all crimes, misdemeanors and offenses may be prosecuted either by indictment as "hereinbefore provided," or by information, and that no grand jury shall "hereafter" be summoned unless the same be ordered by the

court, does not disparage any substantial rights or constitutional guaranty, and is not ex post facto, therefore, in applying to of fenses committed prior to its passage. Groesbeck, C. J., says:

The rules laid down for the determination of the question as to whether or not a law is ex post facto are found in the case of Calder v. Bull, 3 Dall. 386, and have been very generally adopted by the courts of this country. They define the following laws as ex post facto: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime or makes it greater than when it was committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. Mr. Justice Chase, who delivered the opinion of the court, says: "But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the crim-. inal law; but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction." Tested by these plain rules, there would be little difficulty in determining the question before us; but the courts have not contented themselves with this clear definition; and so it was held by Mr. Justice Washington, in his charge to the jury in a United States Circuit Court, that "an ex post facto law is one which in its operation makes that criminal which was not so at the time when the action was performed; or which increases the punishment; or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage." U. S. v. Hall, 2 Wash. C. C. 366. In the case of Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443, this last definition was quoted with the evident approval of the learned justice delivering the opinion of the Supreme Court of the United States in that case, with a statement that the case was carried to the supreme court and the judgment affirmed, as reported in 6 Cranch. 171; but a careful investigation of the opinion in the case last cited will show that the charge of Mr. Justice Washington was not considered, or even touched upon, in the opinion of the court. It will be seen that the familiar defininition of Blackstone found in his Com. mentaries (volume 1, p. 46) has been much enlarged by modern decisions. Blackstone thus defines the meaning of an "ex post facto law:" "When, after an action, indifferent in itself, is committed, the legis lature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the persom who has committed it." Judge Cooley, in his work on Constitutional Limitations (5th ed., p. 329), says: "But, so far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure

in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. Statutes giving the govern. ment additional challenges, and others which authorized the amendment of indictments, have been sustained, and applied to past transactions, as doubtless would be any similar statute, calculated merely to improve the remedy, and in its operation working no injustice to the defendant, and depriving him of no substantial right." This definition was accepted as most satisfactory in the case of Robinson v. State, 84 Ind. 452, where a stautue, providing that, "in all questions affecting the credibility of a witness, his general moral character may be given in evidence," was held not to be an ex post facto law. The court say: "The statute is general, and applies to the trial of all criminal cases. It furnishes merely a rule of practice applicable alike to trials for offenses committed before and after its passage. It does not come within the constitutional inhibition of an ex post facto law." Vide Ex parte Bethurum, 66 Mo. 545. The celebrated case of Kring v. Missouri, supra, was a step further in the direction of enlarging the meaning and definition of an ex post facto law. Kring had pleaded guilty to murder in the second degree, and his conviction of this crime, under the law of Missouri in force at the time of the commission of the crime, was an acquittal of the crime of murder in the first degree. The constitution of Missouri had been changed after the com. mission of the crime in such manner as to abrogate this provision. The Supreme Court of the United States, by a bare majority of the justices, held this constitutional provision to be an ex post facto law, and that it could not apply to offenses committed prior to the taking effect thereof. Counsel for the petitioner urge with great force the following language of Mr. Justice Miller, who delivered the opinion of the court, as a new definition of an ex post facto law: "Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by State legislation after the offense was committed, and such legislation not be held to be ex post facto because it relates to procedure, as it does, according to Mr. Bishop? And can any substantial right which the law gave the defendant, at the time to which his guilt relates, be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot." The learned justice who delivered this opinion did not seem to be satisfied with the definition, as he restates the definition in the Case of Medley, 134 U. S. 160, 10 Sup. Ct. Rep. 384, as follows: "The term 'ex post facto law,' as found in the provision of the constitution of the United States, to-wit, that 'no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,' has been held to apply to criminal laws alone, and has been often the subject of construction in this court. Without making extracts from these decisions, it may be said that any law which was passed after the commission of the offense for which the party is being tried is an ex post facto law when it inflicts a greater punishment than the law annexed to the crime at the time it was committed (Calder v. Bull, 3 Dall. 386, 390; Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443; Fletcher v. Peck, 6 Cranch, 87), or which alters the situation of the accused to his disadvantage; and that no one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, or by some

law passed afterwards, by which the punishment is not increased."

This is a material change in the definition given in the case of Kring v. Missouri, and it now remains to be seen whether or not the situation of the accused has been altered to his disadvantage. We do not see that it has. How does the change in the accusing tribunal take away any substantial rights of the ac cused? He admits himself, by his solemn plea of guilty, to be rightfully accused of a grade of the of fense with which he is charged, and this presumably by the advice of his counsel, after due time has been given to him to plead, and after he has deliberately withdrawn his plea of not guilty. Should he now be heard to complain that a grand jury of sixteen men, as required by the law in force at the time of the commission of the offense, might not have indicted him? He admits his guilt, and after conviction and sentence says that he was not properly accused. This is a travesty upon justice, and illustrates the absurd. ity of the proposition laid down by some of the courts. It has, however, been recently held by the Supreme Court of Montana, in the case of State v. Ah Jim, 23 Pac. Rep. 76, that the constitutional provision there reducing the number of grand jurors from sixteen to seven, five of whom must concur in the finding of an indictment, is self-executing; and the court quotes with approval the following cases to show that such provisions apply to offenses committed before the passage of a law, and are not ex post facto in their nature or effect: Cooley Const. Lim. 272, 331, 332; People v. Mortimer, 46 Cal. 114; Bish. St. Crimes, §§ 178, 180. In the California case (People v. Mortimer, supra), it was held that "it is not an uncommon practice to change the number of grand jurors required to investigate criminal charges, but we have never heard the right of the legislature to make such changes questioned; neither has it ever been claimed that the charge must be investigated by the precise number of grand jurors of which that body was composed at the time the act was committed;" and the Missouri case was noticed in this opinion of the Montana court. So, then, it was held that the reduction in the number of the accusing body did not invade any substantial right of the defendant. If the broad definition of Mr. Justice Miller in the Kring Case, ap. parently modified in the Case of Medley, supra, was followed, it would seem that such a change in the number of the grand jury might be the loss of a substantial right to the accused. If the defendant has an unalterable right to be accused by indictment, it would seem that he has a right to be presented by twelve men out of sixteen, if such law existed at the time of the commission of the offense; and that if a reduction in the number of the grand jury is not a change in his substantial rights, to his disadvantage, the abolition of the accusing body itself would not be. He has been presented by a sworn officer, and, under our law, an official under bond, and the information must have been sworn to, as the law requires it. It was held in the case of Marion v. State, 20 Neb. 233, 29 N. W. Rep. 911, that although a law in force at the time of the commission of an offense (murder) provided that juries should be the judges of the law, and was repealed before the trial, it was competent to make the judge, instead of the jury, judge of the law of the case as the legislature could make such a change, and that such a law was not ex post facto. The court adhered to its definition of an "ex post facto law" made in the case of Marion v. State, 16 Neb. 349, 20 N. W. Rep. 289, which is nearly in line with the definitions given heretofore, and says: "The procedure only ha

been changed. The degree of punishment, the character of the offense, and the rules of evidence remain as under the former law. It may be observed that the only change in the law is to provide another tribunal to pass upon the law of the case. Prior to the change, if the words in the former code are to be taken at their full meaning and import, the jury were the judges as to the law of the case on trial. After the change, the court sits in that capacity, and is the judge of the law. No vested right of the plaintiff in error is affected. A new tribunal may be erected, or a new jurisdiction given to try him, and no right is abridged." Com. v. Phillips, 11 Pick. 28. Now, certainly, here was a change in the powers of the trial jury. They were stripped of the right to act as judges of the law, and the court was clothed with that power, and yet this was held to be no infraction of the rights of the defendant. In the case of People v. Tisdale, 57 Cal. 104, a case upon which the counsel for the petitioner greatly rely, and which they state to be the only case directly in point, found after the utmost diligence, the court said: "The real and only question is whether an information presented after the repeal of a law, which required that a person who violated it should be proceeded against by indictment, can be sustained for an offense committed before the repeal." That court held that the law was not intended to be retrospective, like ours. It also held that a constitutional guaranty such as existed at the time the respondents were charged with the violation of a statute could not be taken away by any act of the legislature. This seems to be the view taken by the Supreme Court of Washington, in the case of McCarty v. State, 25 Pac. Rep. 299. In this case the offense occurred before the admission of the State into the Union, and the court there held that the guaranty of the constitution of the United States was in force at the time of the commission of the offense, and could not be taken away, and that the defendant was entitled to be presented by a grand jury. This was held evidently with much hesitation, as the court announces on the petition for a rehearing, that in view of the public importance of the question, and in view of the fact that the case was submitted without oral argument on the part of the State, it would not be bound by the opinion rendered on the constitutional questions involved. The situation of the petitioner here is different. The constitution of Wyoming was in force five months before the offense was committed, and the only constitutional guaranty which was given to the defendant, except as to the passage of an ex post facto law, was that, "until otherwise provided by law, no person shall for a felony be proceeded against criminally, otherwise than by indictment, except," etc. It has been otherwise provided by law, and the defendant has not been deprived of any constitutional guaranty. The framers of our constitution did not mean to follow the language of the federal constitution that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of public danger." The intention appears plainly in our constitution that there should be no constitutional guaranty of a presentment or indictment of a grand jury, and that nothing should impede the right of the legislature to change, regulate or abolish the grand jury system.

Appeals of New York, in Flynn v. Taylor, 28 N. E. Rep. 418, decide that where the owner of a manufactory on a street daily used by several thousand pedestrians completely blocks up the sidewalk in front of his premises for several hours each day with trucks in receiving and discharging loads, so that pedestrians are forced to take the road or the other side of the street, this will constitute an unreasonable interference with the passage of the public, from which special damages to the keeper of an adjoining store may be inferred, entitling him to maintain a suit for injunction. Vann, J., says:

The owner of land abutting upon a public street is permitted to encroach on the primary right of the public to a limited extent and for a temporary pur pose, owing to the necessity of the case. Two facts, however, must exist to render the encroachment lawful: (1) The obstruction must be reasonably necessary for the transaction of business: (2) It must not unreasonably interfere with the rights of the public. Callanan v. Gilman, 107 N. Y. 360, 14 N. E. Rep. 261; Welsh v. Wilson, 101 N. Y. 254, 4 N. E. Rep. 633. The foundation upon which the exception seems to rest is that it is better for the public to suffer a slight inconvenience thar for the adjacent owner to sustain a serious loss. Any unnecessary or unreasonable use of a street, however, is a public nuisance, and is declared by statute to be a crime against the order and economy of the State. Pen. Code, § 385. A remedy for the wrong against the public may be found in the indictment of the offender, or in a suit by the proper officer in behalf of the people to compel him to abate the nuisance. People v. Loehfelm, 102 N. Y. 1, 5 N. E. Rep. 783; People v. Horton, 64 N. Y. 610; People v. Cunningham, 1 Denio, 524; Attorney General v. Cohoes Co., 6 Paige, 133; Wood, Nuis. § 729; Will. Eq. Jur. (Potter's Ed.) 389, 401. Whenever any person sustains special and peculiar loss in consequence of an unlawful obstruction to a public street, he may maintain an action in equity in his own behalf for damages and an injunction. Such was the case of Callanan v. Gilman, supra, upon which the courts below relied in rendering judgment in this action, and which we also regard as analogous and controlling. In that case, as in this, the obstruction consisted in unloading trucks over a sidewalk, and pedestrians were forced by the inconvenience to take the opposite side of the street. The proof of special damages sustained by that plaintiff was slight, but the court held that direct proof of peculiar damage was not needed if the circumstances showed it, and that he suffered some special damages not common to persons merely using the street for passage was declared to be too obvious for reasonable dispute. The right to maintain the action does not depend on the amount of the special damage, provided the plaintiff suffered some material injury peculiar to himself. Pierce v. Dart, 7 Cow. 609. We think that, in a populous city, whatever unlawfully turns the tide of travel from the sidewalk directly in front of a retail store to the opposite side of the street is presumed to cause special damage to the proprietor of that store, because diversion of trade inevitably follows diversion of travel. The nature of this case was such that the amount of damages could not be shown, and hence the remedy

at law would not only be inadequate, but would lead to a multiplicity of suits. While the defendant was doubtless careful to interfere with the rights of the public no more than was necessary for the convenient transaction of his business with the facilities that he had, still he could not lawfully supply the defects in his premises by virtually monopolizing the sidewalk for several hours every day. As the court said in Rex v. Russell, 6 East, 427, he "could not legally carry on any part of his business in the public street to the annoyance of the public," nor could he "eke out the inconvenience of his own premises by taking in the public highway." Rex v. Jones, 3 Camp. 230. Whether a particular use of a street is an unreasonable use or not is a question of fact depending on all the circumstances of the case. Hudson v. Caryl, 44 N. Y. 553; St. John v. Mayor, etc., 6 Duer, 315; Wood, Nuis. § 251. The trial court found as a fact that the defendant's use of this sidewalk was an unreasonable interference with the passage of the public along the same. Hence he was properly held guilty of creating a nuisance, for the habitual use of a sidewalk or highway in an unreasonable manner, to the serious inconvenience of the public, is a nuisance per se. 16 Amer. & Eng. Enc. Law, p. 937. The evidence was ample to support the finding, as the use of the sidewalk by the defendant was systematic and exclusive during a substantial part of the business day. The primary purpose of the sidewalk was violated, and the people who wished to use it to walk upon were compelled to walk around through the street, and avoid the passing vehicles as best they could. This is scarcely denied by the learned counsel for the defendant, who contends that no unreasonable use or occupation of the sidewalk was shown so far as the plaintiff is concerned, and that he cannot complain, although the public might. It is true that no direct interference with the plaintiff's premises or business was shown. The pecuniary loss to him was caused by the indirect effect of the obstructions to the sidewalk upon the public; but when an unreasonable use of a public highway is shown, and it also appears that such unreasonable use causes special damages to an individual, he has a personal right of action to compel the abatement of the nuisance. Doolittle v. Supervisors, 18 N. Y. 155; Corning v. Lowerre, 6 Johns. Ch. 439; Spencer v. Railroad Co., 8 Sim. 193; Sampson v. Smith, Id. 272; Crowder v. Tinkler, 19 Ves. 617. While the general welfare is promoted by manufactories such as the defendant carries on, and they should not be interfered with for light or trivial causes, still the right of the public to the use of the sidewalk is paramount, and he must so arrange his business as not unreasonably to interfere with it. The decree against him conforms in every respect to the precedent established by this court in Callanan v. Gilman, 107 N. Y. 360, 373, 14 N. E. Rep. 264, when it modified the judgments of the courts below by restraining against an unnecessary or unreasonable obstruction. While the language of the injunction is somewhat indefinite, owing to the care taken not to interfere with important private rights, still a reasonable man will have little difficulty in determining what is a reasonable use of a public street. A prudent man will resolve doubtful questions in favor of the public, and against himself, and the wrong to the public is the basis of the plaintiff's right to relief, although a special injury to himself was also required before he could succeed.

N. W. Rep. 1031, the Supreme Court of Iowa holds that a chattel mortgage of a threshingmachine and of "all the threshing-machine accounts which we shall earn or shall become due by the work of the above machine from now till this debt is paid in full," is void as to the accounts, the description of them not being sufficiently definite to charge third parties with notice, and that demands for money not yet earned may be mortgaged. Beck, C. J., dissents. The court says:

Is the following description contained in a chattel mortgage a sufficient description to impart notice to third parties as to the accounts therein described, towit: "One J. I. Case Threshing Machine Co.'s separator, No. 10,921, with trucks, etc., and twelve-horse power, complete, with all the belts and tools owned by Menzie and Norvell. All the threshing-machine accounts which we shall earn or shall become due us by the work of the above machine from now till this debt is paid in full. All of which property I now own, clear of all incumbrance, and the same is now in my possession in section 11-8, township No. 91-2, range No. 21?" It is claimed by appellant that the description is insufficient for the reason that demands for money not earned cannot be mortgaged. We do not think the claim is well founded. As a general rule, every species of personal property which may be sold, and which has an actual or prospective existence, may be mortgaged. 6 Lawson, Rights, Rem. & Pr. § 3079. It is the well-settled rule in this State that a valid mortgage may be given on personal property not owned by the mortgagor, and not then in existence, if he afterwards acquired it. That rule has been applied to additions to stocks of merchandise. Scharfenburg v. Bishop, 35 Iowa, 63; Stephens v. Pence, 56 Iowa, 258, 9 N. W. Rep. 215. It has also been applied to crops to be planted and grown. Norris v. Hix, 74 Iowa, 525, 38 N. W. Rep. 395; Wheeler v. Becker, 68 Iowa, 723, 28 N. W. Rep. 40; Fejavary v. Broesch, 52 Iowa, 88, 2 N. W. Rep. 963. The right of a railroad company to mortgage its future earnings was affirmed in Jessup v. Bridge, 11 Iowa, 575, although the decision was founded to some extent on considerations of public policy. See, also, Dinham v. Isett, 15 Iowa, 293. The principles which govern the cases cited are applicable to the one under consideration. That an account for money due may be sold cannot be questioned, and an interest in such an account less than the unqualified ownership of it may be transferred. Since a valid mortgage may be given on merchandise not in existence, and on crops neither grown nor planted, we must hold that one may be given on a claim for money not earned. In such cases the mortgage attaches to the property designed to be included therein when it is brought into existence. What relation a mortgage of accounts has to the recording act is a question not presented for our consideration, and not determined. We are of the opinion, however, that the question certified must be answered in the nega. tive. The description given specifies the machine with which the accounts were to be earned, and the time during which they were to be earned, but there is no suggestion as to the county or State in which they were to be earned, nor of the persons against whom they may accrue, and no certainty as to the persons who shall earn them by operating the machine. The test of the sufficiency of a description in a chat