would be in a position to pay them. Relying on this statement, they forbore proceedings to enforce payment. Held, that the solicitor has no defense to summary process for payment of the bill. In re A Solicitor, [1907] 2 K. B. 539. The court took the position that whether or not the transaction created any legal or equitable right is immaterial; since the solicitor gave his word to pay, the court will compel him to do so. It is general law in this country that the remedy by summary proceeding lies only on the application of a client against his attorney. Hess v. Joseph, 7 Rob. (N. Y.) 609. It is also held that the latter may plead whatever defense he would have to an action. Jones v. Miller, 1 Swan (Tenn.) 151. A different view, however, prevails in England. The applicant need not be the solicitor's client. In re Gee, 2 D. & L. 997. Nor can the solicitor plead certain technical defenses, such as the statutes of frauds or of limitations. In re Hilliard, 2 D. & L. 919; Ex parte Sharpe, 5 Dowl. P. C. 717. This view is based on the theory that the process is to secure honorable conduct on the part of officers of the court when acting in that capacity, and that the legal validity of the undertaking is solely a secondary consideration. Ex parte Bentley, 2 Deac. & C. 578. The English doctrine seems better on principle, since the proceeding is primarily for the punishment of the attorney rather than for the relief of the client.

- RETURN OF MISAPPROPRIATED FUNDS

THROUGH MISAPPROPRIATING AGENT. The president of a bankrupt corporation, just before failure, repaid to himself as agent of the defendant company money which he had secretly misappropriated for the use of the bankrupt corporation. Under § 60 of the Bankruptcy Act of 1898, if a preference is given and "the person receiving it . . . or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference," the trustee may recover the property. Held, that the trustee in bankruptcy cannot recover: McNaboe v. Columbian Manufacturing Company, 153 Fed. 967 (C. C. A., Second Circ.).

The general rule is that the knowledge of the agent is the constructive knowledge of the principal. Wright v. Cotten, 140 N. C. 1. But if the agent acts fraudulently toward his principal for his own benefit, the doctrine of constructive knowledge does not apply. In re Marseilles, etc., Co., L. R. 7 Ch. 161; De Kay v. Hackensack Water Co., 38 N. J. Eq. 158. Many courts say that in such cases there is a presumption that the agent will not communicate with the principal; but the true ground is that the agent is acting beyond the scope of his authority. Allen v. South Boston Ry. Co., 150 Mass. 200; contra, Frenkel v. Hudson, 82 Ala. 158. In the present case, therefore, if the agent was acting beyond the scope of his authority he ceased to represent the defendant in the transaction, and the words in the Bankruptcy Act, "or by his agent acting therein," cannot as a matter of law make the defendant liable for his knowledge acquired in such transaction. It might be arguable that while the defaulter was not the defendant's agent to misappropriate the funds, he was its agent to collect the resulting debt of the bankrupt company, but the court seems correct in treating it as virtually one secret fraudulent transaction. Lindsey v. Lambert Building Ass'n, 4 Fed. 48.

BANKRUPTCY - PREFERENCES - ReturN OF PAYMENT TO DEBTOR PAYING IN IGNOrance of Set-Off. — Bank A, shortly before bankruptcy, fraudulently appropriated the proceeds of a note it collected for bank B. Bank B, not knowing of the appropriation, collected a draft, as agent for A, and forwarded the proceeds, which were received by the assignee in bankruptcy. It appeared that the day before going into bankruptcy the partners composing bank A had declared that Bowes us as much as we do them. That is a stand-off." Held, that B may recover back enough of the fund forwarded to satisfy its claim. In re Northrup, 152 Fed. 763 (Dist. Ct., N. D. N. Y.).

If the conversation between the partners is interpreted as setting aside A's claim against B in trust for B, it would seem to create a preference. It is true that B, if sued, could set off its claim against A, under § 68 of the Bankruptcy Act of 1898 providing for the set-off of mutual debts and mutual credits. See

Goodrich v. Dobson, 43 Conn. 576. A's claim is, nevertheless, absolute, and must be paid by cash or set-off; hence it is a part of his assets to which the general creditors are entitled. It cannot be said that a claim to which there is no defense is of no value merely because the debtor may invoke his right to setoff. On the other hand, it may be urged that A, by receiving the money, fraudulently permitted B to destroy his set-off and therefore held it in trust, as when a bankrupt receives goods knowing of his insolvency. In the latter case, however, the bankruptcy would be a good ground for refusal to deliver, while in the present case, again applying the same reasoning, A had an absolute right to receive payment, either by cash or set-off, which should be devoted to the interests of the general creditors.

BANKRUPTCY PRIORITY OF CLAIMS INFANT'S CLAIM AFTER AVOIDANCE OF CONTRACT. - An infant obtained a bill of sale from a bankrupt to secure advances previously made, and after his claim of preference by virtue of such bill of sale had been disallowed, he elected to avoid his contract and claimed the whole amount advanced, on the ground of his infancy. Held, that he is entitled only to claim as a general creditor. In re Huntenberg, 153 Fed. 768 (Dist. Ct., E. D. N. Y.).

A creditor who has received a preference and has been compelled by judgment to surrender it, may nevertheless prove his claim against the estate. Keppel v. Tiffin Savings Bank, 197 U. S. 356; see 19 HARV. L. Rev. 59. And the avoidance of his contract by an infant who has advanced money is effective only to constitute him a creditor for the amount, which he may immediately recover in assumpsit. See Robinson v. Weeks, 56 Me. 102. His claim, in such an event, does not appear superior to that of the ordinary creditor. Consequently, as infancy is not a ground for priority in payment from the estate under 64 of the Bankruptcy Act, which provides for priorities, the result reached in the present case seems eminently sound.

BANKRUPTCY PROVABLE CLAIMS PROOF AFTER TERMINATION OF COLLATERAL LITIGATION. — An attachment suit pending at the time of bankruptcy against the bankrupt at the suit of a creditor did not terminate within a year and thirty days after the adjudication. Held, that the creditor is entitled to prove his claim after the termination of the suit. In re Baird, 154 Fed. 215 (Dist. Ct., E. D. Pa.).

§ 57 n of the Bankruptcy Act of 1898 provides that "claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication; or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such time, then within sixty days after the rendition of such judgment." The court in the present case expressly defers to the authority of a recent case which interpreted this exception clause to mean, "if ... the final judgment therein is rendered within thirty days before the expiration of such time, or at any time thereafter." Powell v. Leavitt, 150 Fed. 89. This departure from the explicit and unambiguous terms of an exception clause, evidently intended to be prohibitory and to ensure a speedy settlement of the estate, is in violation of the first principles of statutory construction requiring strict interpretation of such clauses. See U. S. v. Dickson, 15 Pet. (Ū. S.) 141, 165. If provision is needed for such a contingency as the case presents, it is a matter for legislative discretion, not for extraordinary judicial license.

CARRIERS CONNECTING LINES

THROUGH RATES. Goods were shipped on a through bill of lading over connecting railroads which did not give joint through rates. While the goods were in transit over the first railroad, the second lowered its rates. Held, that the shipper must pay the combined rate existing at the time he shipped and cannot take advantage of the reduction. In the Matter of Through Routes and Through Rates, 12 Interst. C. Rep. 190. When two railroads have agreed to establish through routes between points in separate states, the charge they make is to be regarded as a unit. See Brady v. Penn. Ry. Co., 2 Interst. C. Rep. 78. Recognition of a through bill of

lading by connecting carriers puts them in the same position as if they had expressly agreed to establish through routes. Cincinnati, etc., Ry. Co. v. Interstate Com. Com., 162 U. S. 184; see Louisville, etc., Ry. Co. v. Behlmer, 175 U. S. 648, 662. This ruling of the Interstate Commerce Commissioners applies to the class of routes thus created the rule that the sum of the charges of each carrier must be a unit corresponding to a single established joint rate. Their holding, that the rate as fixed at the time of shipment is unalterable by the second carrier, will tend to relieve the shipper from unexpected increase in freight charges, and furthermore, to remove an uncertainty that lately has much troubled shippers and carriers when similar changes in rates have been made. CARRIERS DUTY TO TRANSPORT AND DELIVER REMOVAL OF SPUR TRACK WITHOUT NOTICE. The defendant, as part of its public business, operated a spur track, over which it had carried wood for the plaintiff. This operation was not required by statute or charter. The plaintiff had wood ready for transportation, some of which was already in the custody of the defendant when the latter removed the track without notice. Held, that the plaintiff can recover for the damage caused by the failure to give reasonable notice of the removal. Durden v. Southern Ry. Co., 58 S. E. 299 (Ga., Ct. App.).

The defendant's duties were only those imposed by the common law, and its right to remove the track seems well established. Jones v. Newport News, etc., Co., 65 Fed. 736. But a common carrier is bound to carry according to its profession. Pickford v. Grand Junction Ry., 8 M. & W. 372. It is liable for damages caused by the publication of a time-table it knows to be inaccurate. Denton v. G. N. Ry., 5 E. & B. 860. And the same principle that applies to representations published in a time-table seems applicable to representations of a carrier made public by its acts. Consequently, if the defendant, while it maintained the track, had refused without notice or valid reason to carry wood for the plaintiff, it would have been liable for the resulting damage. Streeter v. Horlock, 7 Moore C. P. 283. Usually the carrier is not liable unless the goods have been tendered. Little Rock, etc., Ry. v. Conaster, 61 Ark. 560. But this does not apply where part of the goods have been tendered. Houston, etc., Ry. v. Campbell, 91 Tex. 551. Therefore, in the present case, by failing to give notice before removing the siding, the railroad refused to carry a tendered shipment according to its profession and should be liable for the resulting damage. CONFLICT OF LAWS OBLIGATIONS EX DELICTO - WHETHER LAW OF PLACE OF Death or of INJURY GOVERNS ACTION FOR Death. The Pennsylvania statute gave the widow a right of action for death by wrongful act. The New Jersey statute vested such a right in the personal representative. A widow whose husband had died in Pennsylvania from injuries received in New Jersey, through the negligence of the defendant, brought suit. Held, that she may recover under the Pennsylvania statute. Hoedmacher v. Lehigh Valley Ry. Co., 66 Atl. 975 (Pa.).

The fatal impact is somewhat arbitrarily selected as the element in murder giving criminal jurisdiction, regardless of the place of death. State v. Gessert, 21 Minn. 369. Likewise, where death results from negligent injury, it has been assumed that the cause of action arises where the injury, and not where the death, takes place. Slater v. Mexican Nat'l Ry. Co., 194 U. S. 120, 127. If the statutes of the place of injury give no action, recovery is refused even if a remedial statute exists at the place of death. De Harn v. Mexican Nat'l Ry. Co., 86 Tex. 68; Rudiger v. Chicago, etc., Ry. Co., 94 Wis. 191. It is true that such statutes create a new right of action, to the accrual of which death is a condition precedent. See 15 HARV. L. REV. 854. The decisions cited, however, lead to the conclusion that while the prosecution for murder or civil action for death cannot be maintained until death occurs, the real cause of action is the infliction of the injury. The results of the injury merely determine the character of the action. But the law of the place where the cause of action accrues should govern, hence the present decision seems unsound. CONFLICT OF LAWS - TESTAMENTARY SUCCESSION

ADMINISTRATION

OF TRUSTS OF PERSONALTY CREATED BY WILL. — An Illinois testator be

queathed a fund in trust for a married woman with a provision that during the lifetime of her husband she should receive only the interest. The trustee, the cestui, and the property were in Texas. By the law of Texas such restraint is enforceable; by the law of Illinois it is not. While her husband was still alive the cestui sued to get the corpus of the trust fund. Held, that the cestui cannot recover, since the administration of the trust is governed by the law of Texas. Lanius v. Fletcher, 101 S. W. 1076 (Tex., Sup. Ct.).

Questions of the administration of testamentary trusts of personalty are properly governed by the law of the place of administration. Parkhurst v. Roy, 7 Ont. App. 614; see 20 HARV. L. REV. 382, 393. The decision in the present case, however, was based, not on this sound ground, but on the theory that the law of Texas governed because it was the evident intention of the testator that it should govern. This is clearly a misconception. It is true that the testator's intention as to what law should govern may be of importance. Thus, in interpreting the meaning of a bequest, if the testator had in mind the law of another state, it will be construed by that law. Harrison v. Nixon, 9 Pet. (U. S.) 483, 504. Again, in cases where the place of administration is doubtful, the intention is important because it helps to determine that place, which would ordinarily be the domicile of the testator. Cross v. U. S. Trust Co., 131 N. Y. 330; Rosenbaum v. Garrett, 57 N. J. Eq. 186. But to say that a trust, created and administered in the same state, could by the mere desire of the testator be governed by the laws of some foreign state, is to reduce the proposition relied on by the court to an absurdity.

CONSPIRACY - CRIMINAL LIABILITY

DAMAGE TO PERSON IN HIS TRADE OR CALLING. In accordance with an agreement of theatre managers to exclude the complainant, a dramatic critic, from their play-houses, he was refused admission to certain performances. The sole motive of the theatre managers was to protect themselves from public articles reflecting on their personal integrity and on their religious faith. Held, that the agreement is not criminal under the Penal Code of New York. People v. Flynn, 189 N. Y. 180. For a discussion of this case in the lower court, see 20 HARV. L. REV. 68.

CONSTITUTIONAL LAW - NAture and Development of CONSTITUTIONAL GOVERNMENT -STATE QUASI-Sovereignty.- The State of Georgia as quasi-sovereign sought to enjoin a Tennessee corporation from discharging noxious gases across the state line. It did not appear that an action at law would be an inadequate remedy, if it were an issue between private parties. Held, that if the defendant failed to abate the nuisance, an injunction should be granted. Georgia v. Tennessee Copper Co., 206 U. S. 230. See NOTES, p. 132.

CONSTITUTIONAL LAW-POWERS OF CONGRESS - EXCLUSIVE FEDERAL CONTROL OVER NATIONAL BANKS.-§ 5198 of the U. S. Compiled Statutes 1901 provides that, though a national bank knowingly charges a usurious rate of interest, the instrument shall not be void. N. Y. Laws 1837, c. 430, § 1, provides that all instruments charging a usurious rate shall be void; but N. Y. Laws 1892, c. 689, § 55, makes state banks subject to the same usury laws as national banks. A note was made by the defendant at a usurious rate to a payee not a bank. It was later bought at a legal rate by the plaintiff, a state bank. Held, that since Congress exercised its power of passing exclusive laws governing the effect of usury on national banks, as to such banks, and consequently as to state banks, the general usury law is superseded, and hence the note is enforceable. Schlesinger v. Gilhooly, 189 N. Y. 1. See NOTES, p. 136.

CONSTITUTIONAL LAW POWERS OF THE JUDICIARY INTERSTATE COMMON LAW. Kansas filed a bill in the United States Supreme Court to restrain Colorado from using the waters of the Arkansas River for irrigation purposes. On the question as to what rule of decision should apply, Kansas contended that the common law rule of riparian ownership should control; Colorado, that on principles of international law controversies between states

should be justiciable only if justifying reprisal between independent nations. Held, that broad principles of state equality should control, and that the body of decisions on interstate controversies constitute interstate common law. Kansas v. Colorado, 206 U. S. 46. See NOTES, p. 132.

CONSTITUTIONAL LAW - SEPARATION OF POWERS - JUDICIAL RECOUNT AND RE-CANVASS OF BALLOTS. A statute provided that upon petition by any candidate for a certain office the Supreme Court must summarily canvass the ballots cast. Held, that the statute imposes judicial duties on the courts and is therefore valid. Metz v. Maddox, 105 N. Y. Supp. 702 (App. Div.). See NOTES, p. 138.

CONSTITUTIONAL LAW-WHO CAN SET UP UNCONSTITUTIONALITY ESTOPPEL THrough Lapse of Time. - The plaintiff sought to assail an act of the legislature, passed thirteen years before, dividing the state into senatorial districts. Held, that it is too late to question the validity of the act. Adams v. Bosworth, 102 S. W. 861 (Ky.). See Notes, p. 133.

CRIMINAL LAW SENTENCE FEDERAL COURTS' RIGHT TO IMPRISON TO ENFORCE FINE. The defendant was convicted under a federal statute ordering punishment by a fine, but providing no penalty of imprisonment. Held, that the court has common law jurisdiction to decree that the defendant shall stand committed to jail until the fine be paid, or he be otherwise discharged according to law. Ex parte Barclay, 153 Fed. 669 (Circ. Ct., Dist. Me.).

A sentence which does not conform to the punishment provided by statute is void. In re Pridgeon, 57 Fed. 200. But at common law, a sentence of fine may provide that the defendant stand committed till his fine be paid. Harris v. Commonwealth, 23 Pick. (Mass.) 280. The theory allowing such imprisonment is that the fine alone is the penalty, whereas the imprisonment enforces its collection. Ex parte Bryant, 24 Fla. 278. The commitment being on this basis, the sentence in the principal case would not be void in a common-law court as exceeding the statute. But whether federal courts have common-law powers in this respect admits of doubt. The courts of the United States, as a general rule, have no common-law jurisdiction in criminal cases. U. S. v. Lewis, 36 Fed. 449. But they are authorized to adopt common-law procedure when the jurisdiction and powers given by United States laws do not provide adequate remedies. U. S. COMP. STAT. 1901, § 722. Such inadequacy did not exist in the principal case, since federal statutes provide for the collection of fines by execution against the defendant's property, as in civil cases. U. S. COMP. STAT. 1901, § 1041. The decree of imprisonment seems therefore unjustified as an exercise of common-law powers. A previous decision, however, supports such a sentence, although the court gave no reasons for its conclusion. Ex barte Jackson, 96 U. S. 727, 737.

DECEIT NEGLIGENCE AS SUBSTITUTE FOR INTENTIONAL UNTRUTH — LIABILITY OF NATIONAL BANK DIRECTORS. - The defendant, a director of a national bank, participated in the report of the financial condition of the bank required by statute. The report was in fact false, and the plaintiff acted thereon and suffered damage. Held, that the defendant is liable only if he published the report with knowledge of its falsity. Yates v. Jones Nat'l Bank, 206 U. S. 158.

Apart from statute it would seem that liability would attach if there was no honest belief in the truth of the report. See Derry v. Peek, 14 App. Cas. 337. The National Bank Act requires the publication of a verified report, and provides that every director who knowingly participates in the violation of any provision of the act shall be liable. 3 U. S. COMP. STAT. 1901, §§ 5211, 5239. And the present case holds that this statute excludes common law liability for any violation of the duties expressly imposed thereby, and that scienter must be shown to maintain an action. The case is in conflict with several prior decisions. It has been held that a director is an insurer of the truth of his

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