spective of whether the title which later passed by the sentence of condemnation related back to that time. Andersen v. Marten, 24 T. L. R. 208 (Eng., Ct. App., Dec. 18, 1907).

For a criticism of the fiction of relation of title on which the case was decided in the lower court, see 21 HARV. L. REV. 55.

BANKRUPTCY - Powers and Duties of Trustee — LIABILITY FOR NEGLIGENT FAILURE TO COLLECT OUTSTANDING ASSET. - A trustee in bankruptcy neglected to prosecute a disputed claim to goods of the bankrupt in the possession of another. A creditor excepted on this ground to the trustee's final account. Held, that the trustee, if found negligent, may be charged with the value of the goods. In re Reinboth, 157 Fed. 672 (C. C. A., Second Circ.).

The National Bankruptcy Act makes no express provision for charging a trustee for negligence. His neglect may be cause for removal or for withholding compensation. In re Morse, Fed. Cas. No. 9852; see In re Newcomb, 32 Fed. 826. And he is liable for loss to the estate caused by his negligent management. In re Newcomb, supra. His liability for negligently failing to get in an asset does not seem to have been passed upon before in this country; but such liability would naturally result from his duty to collect the property of the estate, under § 47a (2) of the Act. An English case, on similar facts, reaches the same result as the present decision. Ex parte Ogle, L. R. 8 Ch. 711. Moreover an administrator, or a trustee under a settlement, is liable for assets of the estate which he does not use ordinary diligence to collect. Tuttle v. Robinson, 33 N. H. 104; Speakman v. Tatem, 48 N. J. Eq. 136. A trustee in bankruptcy should be required to exercise a like degree of care. See Speakman v. Tatem, supra.

BANKRUPTCY PROPERTY PASSING TO TRUSTEE TRUSTEE'S RIGHT IN PROPERTY OF BANKRUPT SOLD FOR TAXES BEFORE ADJUDICATION -Before adjudication property of a bankrupt was sold for taxes. After the statutory period a deed was given without applying to the bankruptcy court or joining the trustee. Held, that the deed is void. In re Epstein, 156 Fed. 42 (C. C. A., Eighth Circ.).

If property has been put into a receivership, a tax deed thereof, though for taxes previously accruing, is void unless issued with the sanction of the court appointing the receiver. Johnson v. Southern Building Ass'n, 132 Fed. 540. But a master's deed, given in foreclosure proceedings instituted before the mortgagor became bankrupt, is good. Eyster v. Gaff, 91 U. S. 521. And if a pledgor gives the pledgee power to sell without notice and to buy himself, the pledgee may enforce it according to its terms, after the pledgor has been adjudicated bankrupt. In re Mertens, 144 Fed. 818. Neither the pledgee nor the mortgagee need apply to the bankruptcy court or join the trustee. In the present case it would seem that the court relied upon the cases as to receiverships and disregarded the closely analogous cases of the preexisting mortgage or pledge of a bankrupt's property. A receiver has very broad powers and is appointed not merely to collect and distribute assets, but also to carry on the business; and a distinction seems possible between tax deeds of property in his control and of property in the hands of a trustee in bankruptcy.

BILLS AND NOTES NEGOTIABILITY—"PAYABLE ABSOLUTELY.". - The defendant, a joint-stock company, issued coupon bonds payable out of the assets of the association, the stockholders, however, to be free from liability upon them. Held, that the bonds are not non-negotiable as being payable only out of a particular fund. Hibbs v. Brown, 190 N. Y. 167.

For a discussion of this case in the lower court, see 19 HARV. L. Rev. 616.

CARRIERS CUSTODY ANd Control of Goods- LIABILITY OF CARRIER TRANSPORTING DANGEROUS ANIMALS. The defendant was transporting trained bears in one of his steamboats. Before delivery to the consignee the plaintiff, while lawfully on the defendant's dock, was injured by one of the

bears. Held, that the rule imposing absolute liability on the keeper of animals ferae naturae does not apply to the defendant. Molloy v. Starin, 191 N. Y. 21.

If carriers were required to receive dangerous animals, they should not be under absolute liability for damage, since it seems unjust to impose an insurer's duty upon one who must assume a burden already perilous. Cf. Jackson v. Baker, 24 D. C. App. Cas. 100. It is settled, however, that carriers may refuse to accept freight of a dangerous character. Cal. Powder Works v. Á. & P. R. R. Co., 113 Cal. 329. The transportation of animals ferae naturae and of explosives is often necessary, and imposing absolute liability would act as an undesirable deterrent on carriers. Responsibility irrespective of negligence seems to have been imposed originally from a feeling that the keeping of such things was improper and was in itself an offense. Muller v. McKesson, 73 N. Y. 195. Mere temporary possession was sufficient, and carriers or bailees for any purpose have been charged regardless of caution. Marsel v. Bowman, 62 Ia. 57; The Lord Derby, 17 Fed. 265. The reasoning of the present decision, however, would relieve from liability many keepers for limited purposes, and in this seems justifiable; for public opinion no longer requires discrimination against keepers of ferocious beasts. Cf. Marquet v. LaDuke, 96 Mich. 596. Furthermore the result accords with the trend of modern American authority to do away with absolute liability in the use of land and of explosives. Brown v. Collins, 53 N. H. 442; Sowers v. McManus, 214 Pa. St. 244.

CARRIERS DISCRIMINATION - DISTRIBUTION OF CARS. In computing the distribution of its cars in a time of shortage, the defendant railroad failed to count the fuel cars sent to certain mines by foreign railroads to be filled for them. Held, that such fuel cars must be counted in determining the quota to be allotted each shipper. R. R. Com. of Ohio v. The Hocking Valley Ry. Co., 12 Interst. C. Rep. 466.

Under the Interstate Commerce Act coal carriers must distribute their cars in proportion to the capacity of the mines of the district. United States v. W. Va. Northern R. Co., 125 Fed. 252; 25 Stat. AT L. 855. The method by which such quotas should be determined was considered in two recent cases. United States v. B. & O. R. Co., 154 Fed. 108; Logan Coal Co. v. Penn. R. Co., 154 Fed. 497. In both it was held that cars provided by a shipper should be counted as part of such shipper's quota, on the ground that the transportation of such cars occupied the railroad to the detriment of other shippers. Since it is the duty of the carrier to furnish vehicles of transportation, it is bound to subject a shipper who does not supply vehicles to no disadvantage. Rice, Robinson and Winthrop v. Western N. Y. & P. R. Co., 3 Interst. C. Rep. 162. In one case the principle was not applied to foreign fuel cars. United States v. B. & 0. R. Co., supra. But the other case supports the present ruling. Logan Coal Co. v. Penn. R. Co., supra. It is difficult to see any ground for making a distinction between the fuel cars and the individual cars. Under any other rule than that of the present case the carrier would be discriminating in favor of the mines to which fuel cars were sent.

CARRIERS LIMITATION OF LIABILITY-BREACH OF CONDITION PRECEDENT AS AFFECTING EXEMPTION. A ship having collided while docking, water entered and damaged the cargo between decks, and then, owing to a defect in the ship, continued into the hold and there damaged other goods. The charter-party exempted the owner from liability for accidents in docking. Held, that the charterer may recover only the damage due to the unseaworthiness. The Europa, [1908] P. 84.

This decision appears to go on the ground that the charterer having received substantial performance can now no longer treat the unseaworthiness as a breach of condition precedent. The court distinguishes a recent English case in which deviation, though assumed not to be the cause of the damage, was held to be such a breach of condition precedent as to deprive the shipowners of the contract exemption from liability. Thorley, Ltd. v. Orchis S. S. Co., Ltd., [1907] 1 K. B. 660; see 20 HARV. L. REV. 325. But in that case the deviation

was in fact a possible cause of the damage. It has not therefore yet been held that breach of a condition precedent avoids the express limitations of liability, when the damage would have occurred if the condition had not been broken.

CHATTEL MORTGAGES

AFTER ACQUIRED PROPERTY-RIGHT TO OFFSPRING OF MORTGAGED ANIMALS. The plaintiff claimed that a chattel mortgage of certain cows included the calves in gestation at the time the mortgage was executed, there being no reference in the mortgage to the increase. Held, that the mortgage gives only a lien, which does not attach to the calves. Demers v. Graham, 93 Pac. 268 (Mont.).

The general rule is that a chattel mortgagee has title, and so a mortgage on animals covers the increase, though not mentioned in the mortgage, on the principle partus sequitur ventrem. See 16 HARV. L. REV. 442. This rule weakens the effect of the recording laws, since an examination of the mortgage gives no actual notice of its extent. But in the few states where by statute or decision a chattel mortgage gives only a lien, it is often possible to change a result based on the mortgagee's title. Thus, contrary to the result in states passing title to the mortgagee, a tender of the amount due on a note, though made after maturity, discharges the lien on the chattel mortgage security. Moore v. Norman, 43 Minn. 428; cf. Noyes v. Wyckoff, 30 Hun (N. Y.) 466. So too the court is free to construe the lien as limited to the property actually described. The contrary view is a possible construction. First Nat'l Bank v. Western Mtge., etc., Co., 86 Tex. 636. Thus a pledge is said to cover the increase. See JONES, PLEDGES, § 32. The view of the present case, however, is preferable, as it carries out the spirit of the registry laws. Shoobert v. De Motta, 112 Cal. 215.

CONFLICT OF LAWS LEGITIMACY AND ADOPTION LEGITIMATION SUBSEQUENT To Birth. A New York man deserted his wife and purported to marry a New Jersey woman, who bore him two children. Thereafter he became domiciled with his family in Michigan, obtained a divorce there from his New York wife by default without personal service, and went through a second marriage ceremony with the New Jersey woman. This divorce and remarriage a New York court by decree refused to recognize. By Michigan law illegitimate children become legitimate by the subsequent marriage of their parents. The children claimed New York realty under a devise as the "lawful issue" of their father. Held, that they are not entitled to the property. Olmsted v. Olmsted, 190 N. Y. 458.

For a criticism of this case in the lower court, see 20 HARV. L. REV. 400.

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CONSIDERATION THEORIES OF CONSIDERATION ACCORD AND SATISFACTION BY PART PAYMENT. — The plaintiff in a suit for the balance of a note admitted that several partial payments had been made by the defendant. It was inferable that the defendant was insolvent when the last partial payment was made, and possible that she had consented to the sale of certain land. Held, that it was error to charge that an agreement to accept the payments in full satisfaction is no defense. Frye v. Hubbell, 68 Atl. 325 (N. H.).

Although this case may not squarely involve the doctrine formerly established in New Hampshire that an accord and satisfaction by payment of less than the whole debt is not valid, yet it is certainly intended to annul that doctrine and does not rest on any exception to be made on account of the insolvency of the debtor. Reliance is placed upon the general reluctant expressions of assent to the overruled doctrine and upon the argument of Professor Ames that it is unjust and arose in England through a misunderstanding. See Foakes v. Beer, 9 App. Cas. 605; 12 HARV. L. REV. 515; 13 ibid. 29. The various views of the nature of consideration are discussed in 8 HARV. L. REV. 27; 14 ibid. 496; 17 ibid. 71.

CONSTITUTIONAL LAW CLASS LEGISLATION - ACT ALLOWING PRIVATE CLAIM AGAINST STATE. Article III, § 19, of the Constitution of New York provides that the legislature shall not "allow any private claim against the

state." The state conveyed land to the plaintiff for value by letters patent, which, by express terms, should "in no case operate as a warranty of title." The title proving invalid, a special enactment conferred jurisdiction on the Court of Claims to determine the plaintiff's claim for damages and to enter judgment therefor. Held, that the enactment is constitutional although it authorizes a judgment for the plaintiff notwithstanding the lack of warranty. Wheeler v. State of New York, 190 N. Y. 406.

This decision affirms the decision of the lower court, commented upon in 18 HARV. L. REV. 465.

PERSONAL RIGHTS

CONSTITUTIONAL LAWACT REQUIRING WEEKLY PAYMENT OF Employees of CORPORATION IN MONEY. A statute required corporations engaged in certain enumerated classes of business to pay their employees in money each week. Held, that the statute is constitutional. Lawrence v. Rutland R. Co., 67 Atl. 1091 (Vt.).

The court seemingly relies on the state's reserved power to alter corporate charters, though it also mentions the quasi-public character of the corporations involved. The constitutionality of such legislation has been the subject of much conflict. It has been upheld variously as an exercise of the reserved power to amend, or of the broader police power. State v. Browne, etc., Mfg. Co., 18 R. I. 16; Opinion of the Justices, 163 Mass. 589; contra, Republic Iron & Steel Co. v. State, 66 N. E. 1005 (Ind.). In reality the considerations justifying the exercise of these two powers seem the same; both, in essence, look to the interest of the public. The liberty to contract is fundamental, but it is neither absolute nor universal; in a conflict, inevitable at times, with the public welfare, the latter, if clear, is paramount. See Frisbie v. United States, 157 U. S. 160, 165. And it is not inconceivable that a "weekly payment " act, or a "truck" act, or a combination of the two, as in the present case, may be necessary because of local industrial conditions. See 19 HARV. L. REV. 62. That, of course, is a question of fact, and the sole concern of the court is with the reasonableness of the legislative determination of this question in the light of the conflict of rights.

CONSTITUTIONAL LAW-WHO MAY SET UP UNCONSTITUTIONALITY OFFICIAL INTEREST NOT SUFFICIENT TO RAISE FEDERAL QUESTION. — A county court refused to assess a tax in accordance with a state statute. In mandamus proceedings the highest court of the state declared the statute to be constitutional. The county court appealed to the United States Supreme Court. Held, that since the interest of the appellant is official and not personal there is no federal question involved. Braxton County Court v. West Virginia, 208 U. S. 192. See NOTES, p. 438.

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CONTEMPT POWER TO PUNISH FOR Contempt POWER OF Appellate COURT TO PUNISH VIOLATION OF INJUNCTION PENDING APPEAL. Pending an appeal from a judgment of the lower court granting a perpetual injunction, the defendant violated the decree. Held, that the appellate court is the proper tribunal to punish the contempt. Menuez v. Grimes Candy Co., 83 N. E. 82 (Oh.).

When an appeal is taken from a decree of the lower court dissolving an injunction and the upper court grants a supersedeas operating as a revival of the injunction, it has been held that the upper court should punish violations thereof. State v. Bridge Co., 16 W. Va. 864. In that case it is the upper court which makes the injunction operative. But when a perpetual injunction has been granted in the lower court, the perfecting of an appeal, according to the great weight of authority, does not destroy the operative force of the injunction. Leonard v. Ozark Land Co., 115 U. S. 465. Pending such an appeal the upper court merely leaves the decree of the lower court in full force. State v. Harness, 42 W. Va. 414. By the appeal the lower court is merely deprived of the power to take further affirmative action. See Sixth Ave. R. Co. v. Gilbert El. R. Co., 71 N. Y. 430. It may still take steps necessary to preserve the status quo. Hinson v. Adrian, 91 N. C. 372. Hence it would seem that,

pending an appeal from the decree granting an injunction, the lower court is the proper tribunal to punish disobedience of the injunction. State v. Dillon, 96 Mo. 56.

The

CORPORATIONS CORPORATE Powers and their Exercise — EXTERIOR ADVERTISING ON PUBLIC OMNIBUS. The plaintiff corporation maintained large, highly colored advertising signs upon the outside of its omnibuses. When threatened with interference by the city, the plaintiff sought to enjoin municipal action. Held, that an injunction will not be granted, as the plaintiff in engaging in exterior advertising is acting ultra vires. The Fifth Avenue Coach Co. v. City of New York, 38 N. Y. L. J. 1675 (N. Y., Sup. Ct., Jan. 1908). The case presents a novel application of the doctrine of ultra vires. franchises of public corporations are strictly construed and the courts are slow to allow them to indulge in subordinate undertakings which are not incidental to the prosecution of their main undertaking. See Davis v. Old Colony R. R., 131 Mass. 258. While refreshment rooms in depots add to the convenience of passengers, they derive no benefit from exterior advertising, and to hold that the plaintiff has no such incidental power seems proper. Pittsburgh, etc., Ca. v. Seidell, 6 Pa. Dist. 414. Advertising on station platforms, however, is justified on the ground of custom. See Interborough R. T. Co. v. City of N. Y., 47 N. Y. Misc. 221. The court regrets its inability to treat the advertising as a nuisance. There is a marked tendency in recent cases to recognize public æsthetics as a basis for legal action. See 20 HARV. L. REV. 35. But as yet the use of private property has not been limited by prohibiting offensive advertisements. City of Chicago v. Gunning System, 214 Ill. 628. It is to be hoped that the courts will soon declare that the prohibition of unsightly advertising is as much within the police power as the prohibition of offensive noises and odors. See FREUND, POLICE POWER, § 182.

CORPORATIONS DISTINCTION BETWEEN CORPORATION AND ITS MEMBERS - BINDING EFFECT ON STOCKHOLDers of CoNTRACT MADE BY CORPORATION. — The X corporation with the assent of the individual defendants, its principal stockholders, sold all of its property, including good will, to the plaintiff, and covenanted that it would no longer engage in the same business. The individual defendants with others thereafter formed the defendant corporation, which proceeded to carry on that same line of business. Held, that neither the individual defendants nor the defendant corporation is precluded from so doing by the contract of the X corporation. Donnell v. Herring, etc., Co., 208 U. S. 267.

For a discussion of this case in the lower court, see 20 HARV. L. Rev. 223. DAMAGES Measure of DAMAGES-Loss of USE OF AUTOMOBile. The plaintiff's automobile was damaged by the negligent act of the defendant, and the plaintiff was deprived of its use for three weeks while it was undergoing repairs. He was accustomed to use the car solely for purposes of health and pleasure. Held, that it is improper to admit evidence of the rental value of the machine. Bondy v. New York City R. Co., 56 N. Y. Misc. 602.

The ordinary measure of damages in the case of injury to personal property is the expense of restoration, deterioration in value, and compensation for the loss of the use of the chattel. Streett v. Laumier, 34 Mo. 469; Allen v. Fox, 51 N. Y. 562. The plaintiff may recover for the deprivation of the use though he suffers no pecuniary loss thereby. The Mediana, [1900] A. C. 113. He is entitled to the use of his property and should be compensated for the loss of that use whether he would have gained a profit from it or enjoyed it himself. If the plaintiff had hired another automobile he could have recovered the reasonable expense of so doing. Cf. Wellman v. Miner, 19 N. Y. Misc. 644. It would seem to follow that if he chooses to do without a machine, he is entitled to compensation for the deprivation, which does not seem to be conjectural damage. In ascertaining the value of the use of a chattel, the rental value is proper evidence. Chauvin v. Valiton, 8 Mont. 451. The principal case, however, is in accord with a previous decision of the same court. Foley v. Forty-Second St. R. Co., 52 N. Y. Misc. 183.