common law of the state.

The Constitution of the United States and the laws made under it are the laws of the state because expressly adopted by the people of the state. The federal courts are, therefore, courts of the state, and as such administer state laws. That the federal court may differ from the state court in its interpretation of the common law, as in the principal case it differed from it in the interpretation of a statute, is due to the fact that they are courts of co-ordinate power with no common superior. Such difference in interpretation results in uncertainty as to what is the law but does not create two systems of law upon the same subject-matter. The conception of a federal common law as a "general system of jurisprudence hovering over local legislation and filling up its interstices" 10 is fundamentally opposed to the basic principle of our common law that there is no law apart from territory.

SUCCESSIVE ASSIGNEES OF A MORTGAGE DEBT, EACH WITH A LEGAL RES. Both the courts which regulate the rights of successive assignees of the same chose in action by priority of notice to the obligor1 and those which apply the rule of priority of assignment agree that where the obligation is contained in an instrument the assignee who obtains the instrument prevails. This harmony of opinion results from the general policy of equity not to deprive a purchaser of any legal advantage which he has acquired without taint of conscience. In applying this doctrine the courts have gone to great lengths. For example, when a party to an action had a common law right to refuse to testify, equity would not grant against a bona fide purchaser a bill for the discovery of evidence which would prejudice him in his honestly purchased rights. Nor would it, in an action of ejectment, restrain him from setting up the purely technical and unmeritorious plea of a satisfied outstanding term in a third person.

4

In view of these principles, facts such as are presented by a late New York case seem to raise a rather complicated question. The obligee of a bond secured by mortgage assigned the debt and delivered the bond to A. Later he assigned the same debt to B, to whom he surrendered the mortgage deed. Both A and B were bona fide purchasers for value. Syracuse Savings Bank v. Merrick, 96 N. Y. App. Div. 581. The court was relieved of the necessity of deciding the case on its merits because A had failed to record his assignment as required by statute, but the same case has arisen where consideration of the registry system was not involved. The courts, starting with the well established rule of mortgage law that an assignment of the debt carries with it the security, have held that A, who gets the debt by getting the instrument containing the obligation, is entitled to preference whether the assignment to him precedes or follows that to B.

9 Simonton, The Federal Courts, 2d ed., 31; see McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 403.

10 Duponceau, Jurisdiction of Federal Courts 87.

1 English, etc., Trust v. Brunton, [1892] 2 Q. B. 1; Third Nat. Bank of Philadelphia v. Atlantic City, 126 Fed. Rep. 413.

2 Putnam v. Story, 132 Mass. 205.

Bridge v. Connecticut Life Ins. Co., 152 Mass. 343; see Re Gillespie, 15 Fed. Rep. 734

4 See Emmerson v. Ind, Coope & Co., 33 Ch. D. 323.

5 Whittemore v. Gibbs, 24 N. H. 484.

• Morris v. Bacon, 123 Mass. 58.

7 Kernohan v. Manss, 53 Oh. St. 118; Boyle v. Lybrand, 113 Wis. 79.

Do these decisions deprive B of a legal right which he has obtained for value and without a charge upon his conscience? The answer must depend entirely upon the right which he actually gets by his bargain. And it would seem that he gets nothing more than a security title which he is only conditionally entitled to retain. If the obligee first assigns to B and delivers the mortgage but retains the bond, he must hold the bond on a constructive trust for the benefit of B. B holds the mortgage title as security for the payment of the debt, but with full knowledge that it is a mere security title. Consequently, he must be taken to know that his right to retain that security depends wholly upon his interest as cestui que trust in having the debt paid to his trustee. He, of course, intends to perfect his right to the security by later obtaining possession of the bond; but if in the meantime the obligee, in violation of the constructive trust, assigns and delivers the bond to A, who has no notice of the trust, B's rights as cestui sink, and his right to the security perishes with them. The same conclusion must be reached where A's assignment is prior, for the measure of B's right in that which he knowingly takes as security is his right in the obligation secured.

RIGHT TO TRIAL BY JURY IN CRIMINAL CASES UNDER THE FOURTEENTH AMENDMENT. - The fourteenth amendment to the Constitution of the United States provides that no state shall " 'deprive any person of life, liberty, or property, without due process of law." From state legislation which would infringe this right to "due process," an appeal lies to the federal courts.1 The District Court of the Southern District of Georgia lately decided that this amendment guarantees a jury trial to municipal offenders sentenced to infamous punishment; and that a Georgia statute providing for the summary infliction of such punishment was unconstitutional. Jamison v. Wimbish, 130 Fed. Rep. 351. This case raises the question how far the amendment necessitates a jury trial in criminal cases. The courts which have interpreted the amendment most favorably for the principal case have gone no further than to say that it confirmed this right in all cases where the accused had it by the system of law obtaining in the state prosecuting him, at the time of the adoption of the amendment.* From the earliest times magistrates have exercised summary jurisdiction over municipal offenses. This was the practice in Georgia at the time the amendment was adopted. Nor does the infliction of infamous punishment entitle the prisoner to a jury trial. Such punishments were imposed summarily by justices of the peace at common law. If then cases such as the principal case were dealt with summarily by the common law of Georgia at the time the amendment was adopted, and infamous punishment could be inflicted by a court without a jury, the constitutional provision was not violated by the Georgia statute.

It is not proposed, however, to reach this result merely on the ground that the principal case is not within even the above interpretation of the amend

1 Allen v. Georgia, 166 U S. 138, 140; Wilson v. North Carolina, 169 U. S. 586, 593.

2 Callan v. Wilson, 127 U. S. 540, 549; In re Kemmler, 136 U. S. 436, 448.

3 See Byers v. Commonwealth, 42 Pa. St. 89; Green v. Superior Court of San Francisco, 78 Cal. 556.

4 Williams v. City Council of Augusta, 4 Ga. 509; Floyd v. Commissioners of Eatontown, 14 Ga. 354.

5 See 3 Burn, Justice of the Peace, 30th ed., 142; see also St. of James I., c. 4.

7

8

ment, but rather on the theory that the fourteenth amendment does not include the right to trial by jury. The authorities cited by the court in the principal case in support of the right to such trial are hardly in point ; since those cases arose in federal jurisdictions where the fifth and sixth amendments applied; and these amendments have no application to prosecutions for crimes against a state. On the other hand Justice Bradley, who in the slaughterhouse cases carried the force of the fourteenth amendment further than any other member of the court, later said with reference to this amendment: There is nothing in the constitution to prevent any state from adopting any system of laws or judicature it sees fit for its territories." " States should be allowed to do away with jury trial to-day as readily as they could before 1870. On this ground only, can the extension by statute of equity jurisdiction be supported. To limit states to the procedure then in vogue would make no allowance for progress in systems of judicature induced by new conditions. Nor does it seem right so to interpret the amendment as to sanction summary conviction in one state and to forbid it in another, merely because the one had allowed itself such jurisdiction before 1870, and the other had not. Any legal procedure in accord with the established usage in England and America and in conformity with the constitution and laws of the United States, or with its treaties, should be considered "due process of law." 10 Such an interpretation of "due process" is adopted by the Supreme Court in civil cases; 11 and while this question has not been squarely raised in criminal cases, there seems no reason for holding that what is "due process as to the former is not "due process as to the latter, since the same safeguards are extended to " 'life, liberty, or property."

PART PERFORMANCE UNDER THE STATUTE OF FRAUDS. - It is well established that equity will not allow one party to an oral contract for the sale of land to set up the statute of frauds when the other party, in reliance on this contract, has partially performed.1 In determining what acts constitute a sufficient part performance to take the case out of the statute, the English courts and the majority of the courts in this country seem to require only that the acts must be overt, and of such a nature that they may be unequivocally attributed to the existence of an oral agreement. Under this rule the courts have held that mere entry by the purchaser under the oral contract was enough to take the case out of the statute, while on the other hand a tenant in possession who made improvements on the premises relying on an agreement to extend his lease was denied specific performance because his acts, not being inconsistent with the original tenancy, could not be unequivocally attributed to the existence of the parol agreement.* Such

6 United States v. Johanssen, 35 Fed. Rep. 411; In re Mills, 135 U. S. 263; Callan v. Wilson, supra.

In re Sawyer, 124 U. S. 200; Eilenbecker v. Plymouth Co., 134 U. S. 31.

8 Brooks v. Missouri, 124 U. S. 397.

9 Missouri v. Lewis, 101 U. S. 22, 31.

10 Hurtado v. California, 110 U. S. 538; Lowe v. Kansas, 163 U. S. 81, 85.

11 Walker v. Sauvinet, 92 U. S. 90; see also Hallinger v. Davis, 146 U. S. 314.

1 Browne, Stat. of Frauds, ch. xix.; Mundy v. Jolliffe, 5 Myl & Cr. 167.

2 Maddison v. Alderson, L. R. 8 App. Cas. 467; Harris v. Knickerbacker, 5 Wend.

(N. Y.) 638.

3 Pain v. Coombs, 1 De G. & J. 34.

Frame v. Dawson, 14 Ves. Jun. 385.

6

an arbitrary requirement can be based only on the notion that a court of equity will enforce a contract whenever it is sufficiently satisfied of its existence. Since, however, the statute of frauds expressly provides that all contracts for the sale of land must be evidenced in writing signed by the party to be charged," the court in upholding a contract proved in any other way is acting in direct contravention to the statute. The ground, if any, for equitable interference in such cases is that the defendant should be charged, not upon the contract itself, but upon the equities resulting from its partial execution, thus enforcing specific performance apart from the statute of frauds, and not in spite of it. In conformity with this reasoning several states in this country, notably Massachusetts, follow a rule seemingly superior to that laid down by the majority of jurisdictions. The case usually arises in the following way: The plaintiff enters upon the land and in reliance on the contract to convey erects improvements costing more than their intrinsic value, so that even if he were allowed a quasi-contractual action he could not recover adequate damages. In consequence of these cases, it is commonly said that part performance, in order to take the case out of the statute of frauds, must consist of a change of possession accompanied by such acts on the part of the purchaser that adequate compensation can be given him only by a conveyance of the premises. From this it might appear that change of possession is necessary and that the plaintiff must always be the purchaser. But since the rule would seem to depend on the fact that unless specific performance is granted, the plaintiff will inevitably be damaged through his reliance on the defendant's representations, a proper case for its application may readily arise, where there is no change of possession and the plaintiff is the seller. An example is furnished by the facts of a late English case, where the plaintiff, in reliance on the defendant's oral promise to buy a portion of his land, built a house on it according to the latter's specifications. Dickenson v. Barrow, [1904] 2 Ch. 339. Though the case went off on another point, if the improvements made in anticipation of the sale were more expensive than valuable, it is difficult to see why specific performance should not have been granted here under the Massachusetts rule.

1

PURCHASE FROM THE GRANTOR OF A DEED IN ESCROW. Delivery of the deed is necessary to pass the title to land, and escrow is a method of delivery. Under the general rule, this delivery does not avail to pass the title until the performance of the conditions or the happening of the contingency upon which the deed is held in escrow ; but if for any reason such as insanity, coverture, or death, the grantor becomes incapacitated from passing title before the delivery out of escrow, this second delivery is by the fiction of relation carried back to the time of the delivery into escrow so as to make the title pass as of that time. Since then, in the ordinary case, it is not the grantor's deed until the second delivery, the question arises whether a subsequent grantee getting a conveyance before the performance of the conditions of the escrow would get a title indefeasible at

5 Stat. 29 Car. II., ch. iii. sec. iv.

6 Per Selbourne, L. J., in Maddison v. Alderson, supra.

* Glass v. Hurlbert, 102 Mass. 24; Burns v. Daggett, 141 Mass. 368.

1 Smith v. South Royalton Bank, 32 Vt. 341.

2 Webster v. Kings County Trust Co., 145 N. Y. 275.

law. It is the policy of the law to favor the grant in escrow. At least it is not regarded as just that one charged with notice of the grant in escrow should nevertheless take a complete legal title; and all jurisdictions agree that he cannot, though there may be an exception where the original grantee is a volunteer. Since however the cases reach this result on different grounds, a conflict arises as to whether an innocent purchaser will take a complete legal title.

Some jurisdictions cut off the intervening grant to a purchaser with notice by extending the use of the fiction of relation. But as it is a general doctrine that a fiction invoked to do justice should not be used against innocent third parties, in these jurisdictions a bona fide purchaser from the grantor of a deed in escrow takes an indefeasible title," and this doctrine has been recently followed. Emmons v. Harding, 70 N. E. Rep. 142 (Ind., Sup. Ct.).

Other jurisdictions do not allow an innocent purchaser to defeat the grantee in escrow.6 These jurisdictions hold that after the deed is placed in escrow the grantor no longer has full legal title. The grant in escrow puts the land out of his power and makes it possible for the grantee to get something analogous to specific performance at law. All that the grantor has is a title subject to a defeasance, and a title subject to a defeasance is all that a purchaser from him, whether mala fide or bona fide, can buy. Therefore, notwithstanding the intervention of third parties, the grantee in escrow gets a full legal title upon performance of the conditions. The latter decisions invoke no fiction in reaching this result and seem to support the better rule.

COMMUNICATION OF REVOCATION. An offer to make a contract is good, generally speaking, until revoked. A question presenting considerable difficulty, however, is whether knowledge by the offeree, indirectly acquired, that the offerer intends to revoke or has done an act inconsistent with the continuance of the offer, is sufficient revocation. The leading case on the subject is Dickinson v. Dodds.' The defendant offered to sell to the plaintiff certain land. On the following day knowledge came indirectly to the plaintiff that the defendant was negotiating a sale of the property to another; whereupon the plaintiff, before any notice of revocation had been communicated to him by the defendant, handed the latter an acceptance of his offer. The defendant, having already sold the land to another, refused to perform, and the plaintiff brought a bill in equity against the defendant and his vendee. The court refused to grant specific performance. The case has been followed in Maryland, and is again approved and followed in a late Wyoming case. Frank v. Stratford-Handcock, 77 Pac. Rep. 134. While in each of these cases the plaintiff is praying specific performance, which it would seem could not be granted in any event, since the vendee's right to the property is equal and arose prior to

8 McDonald v. Huff, 77 Cal. 279.

4 Viner's Abdg. tit. "Relation."

Wolcott v. Johns, 7 Col. App. 360.

6 Hall v. Harris, 5 Ired. Eq. (N. C.) 303.

2

? Hooper v. Ramsbottom, 6 Taunt. 12; Fort v. Beekman, 1 Johns. Ch. (N. Y.) 288.

8 Leiter v. Pike, 127 Ill. 287.

1 L. R. 2 Ch. D. 463.

2 Coleman v. Applegarth, 68 Md. 21.