Wurtz v. Hart, 13 Ia. 515. The holder of collateral security does not by accepting it surrender his primary right against the debtor personally. When the debtor makes a general assignment, the personal right is converted into an equitable claim against the assets in the hands of the assignee, which remains equally distinct from the right against the security. Paddock v. Bates, 19 Ill. App. 470. Hence the creditor should be permitted to collect dividends upon his entire claim and to supply any deficiency out of the proceeds of the collaterals. Should the dividends plus the proceeds exceed the amount of the debt, the creditor will hold the balance in trust for the assignee. See Graff's Appeal, 79 Pa. St. 146. If in consequence the secured creditor recovers his entire claim while other creditors do not, this is but the natural result of foresight in obtaining security. Statutes, however, in some jurisdictions require the surrender of collaterals as a condition to receiving dividends upon the whole claim. See SwedishAmerican National Bank v. Davis, 64 Minn. 250.

BILLS AND NOTES-DELIVERY ACCOMMODATION PAPER DISCOUNTED BY OTHER THAN PAYEE. - The defendant executed an accommodation note payable to a certain bank for the purpose of enabling a friend to raise money by having it discounted. The bank having refused to discount it, the plaintiff was induced to do so. The latter brought suit upon the note in his own name. Held, that the plaintiff may recover. Bull v. Latimer & Helm, 80 S. W. Rep. 252 (Tex., Civ. App.).

The result of the principal case is open to the technical objection, deemed fatal in many jurisdictions, that the note in the hands of the plaintiff is really not a valid instrument, since it has never been delivered to the payee. First National Bank of Centralia v. Strange, 72 Ill. 559. Some courts, however, hold that it is desirable to let the plaintiff recover on the note, because, the object of the note being merely to raise money, it must ordinarily be immaterial to the maker by whom it is discounted. Accordingly a number of jurisdictions allow recovery, but require the suit to be brought in the name of the payee. Bank of Rutland v. Buck, 5 Wend. (N. Y.) 66. If recovery is to be allowed at all in such a case the Texas court seems logical in allowing the plaintiff to bring the action in his own name; for the bank having refused to discount the note can have no more property in it than the plaintiff, and so no technical consistency is gained by requiring the action to be brought in its name.

CARRIERS PERSONAL INJURIES TO PASSENGERS - INSULTS BY SERVANT. The defendant's conductor refused to return to the plaintiff her change, and abused her in the presence of her fellow-passengers. Held, that the plaintiff may recover for mental humiliation. Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347. For a discussion of the principles involved, see 15 HARV. L. REV. 670.

CARRIERS WHEN A CARRIER BECOMES WAREHOUSEMAN. - The plaintiff, a consignee of certain goods carried by the defendant company, lived outside of its delivery limits. The goods were stolen after the plaintiff had made arrangements to have them removed, but before a reasonable time for their removal had elapsed. Held, that the defendant company is liable. Burr v. Adams Express Co., 58 Atl. Rep. 609 (N. J., Sup. Ct.).

The law of New Jersey upon this point has previously been regarded as unsettled. This decision, however, seems to place that state squarely among the jurisdictions holding that liability as a common carrier continues until the consignee has had a reasonable time to remove the goods. See 9 HARV. L. REV. 153.

CONFLICT OF Laws- RIGHTS OF PROPERTY · - VALIDITY OF FOREIGN CHATTEL MORTGAGES. A debtor executed a chattel mortgage to the plaintiff in Illinois which was duly recorded in that state. The property was taken into Tennessee and there levied upon by local creditors of the mortgagor. The plaintiff brought replevin. Held, that the defendant cannot be charged with constructive notice of the mortgage and is entitled to priority. Snyder v. Yates, 79 S. W. Rep. 796 (Tenn.).

The position taken by the Tennessee court that a mortgage recorded in another state is not effective against creditors attaching property which has been brought into Tennessee, seems to reverse the stand previously taken by that state on this question. See Bank v. Hill, 99 Tenn. 42. The holding of the court is supported by several states. Corbett v. Littlefield, 84 Mich. 30. The majority of decisions however, take the view that a chattel mortgage validly executed and recorded according to the requirements of the state where made, is valid in every state into which the property may be brought, against purchasers or attaching creditors, unless contrary to some rule of statutory or common law policy. Parr v. Brady, 37 N. J. Law 201. Against this view it may be urged that a recording statute can have no force outside of the jurisdiction enacting it and that creditors of a foreign state having no access to the record cannot be charged

with notice. The answer to this would seem to be that since by the statute of the state having jurisdiction of the res the chattel mortgage passed title good against third parties, that title should be protected wherever found.

CONSTITUTIONAL LAW-PERSONAL RIGHTS-BREACH OF CONTRACT OF SERVICE MADE INDICTABLE. A statute was enacted in Alabama making it a penal offense for any laborer who should make a written contract of service and then abandon his employment without the consent of his employer and without sufficient excuse, to make a similar contract with a second party without informing him of the previous agreement. Held, that the statute is unconstitutional under the Constitution of Alabama and under that of the United States. Toney v. State, 37 So. Rep. 332 (Ala.). For a discussion of the principles involved, see 17 HARV. L. REV. 121.

CONSTITUTIONAL Law — RIGHT TO TRIAL BY JURY - PROTECTION AFFORDED BY THE FOURTEENTH AMENDMENT IN CRIMES AGAINST THE STATE. - By a state statute the recorder of Macon was authorized to sentence summarily certain municipal offenders to not more than six months on the county chain gang, a body composed of felons and municipal offenders, and used for labor on the public works. The petitioner being accordingly condemned to serve on such chain gang applied to the federal court for a writ of habeas corpus. Held, that the writ should be granted, since the statute providing for the infliction of such punishment without a jury trial is unconstitutional. Jamison v. Wimbish, 130 Fed. Rep. 351 (Dist. Ct., S. D. Ga.). See NOTES, p. 136.

- PUBLIC Office.

CONSTITUTIONAL LAW · VESTED RIGHTS - Held, that an officer appointed for a definite time to a public office has not a vested property interest therein, or contract right thereto, of which the legislature cannot deprive him. Mial v. Ellington, 46 S. E. Rep. 961 (N. C.).

This decision overturns a long line of cases in North Carolina and brings the law of that state on the point involved into harmony with the law prevailing in the rest of the Union. See 14 HARV. L. REV. 218.

TITLE ACQUIRED

CONSTRUCTIVE TRUSTS-MISCONDUCT BY NON-FIDUCIARYBY MURDER HELD SUBJECT TO CONSTRUCTIVE TRUSTS. A wife held a policy of insurance on the life of her husband, payable to her if she should survive, otherwise to his representatives. The husband murdered the wife and then killed himself. Her representatives sought to recover the proceeds of the policy from his representatives, who had received it, by agreement, subject to this suit. Held, that they are entitled to recover. Box v. Lanier, 79 S. W. Rep. 1042 (Tenn.).

For a discussion of the questions of title and of equitable interest involved, see 9 HARV. L. REV. 474; 14 ib. 375.

· FOREIGN CORPORATIONS

CORPORATIONS WHAT CONSTITUTES DOING BUSINESS. The plaintiff, a foreign corporation, having sold to the defendant some machinery through an order taken and filled by its local agent, sued on a note given for the purchase price. Held, that the single transaction constitutes a doing of business, within the statute barring corporations doing business in the state from maintaining an action without having obtained a certificate. John Deere Plow Co. v. Wyland, 76 Pac. Rep. 863 (Kan.).

As the Kansas court points out, the usual statement, that the doing of a single act of business does not constitute the doing or carrying on of business within the meaning of statutes requiring certificates, has generally been made in reference to isolated and incidental transactions. See Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Commercial Bank v. Sherman, 28 Ore. 573. The suggestion here advanced that where the single transaction indicates a purpose to carry on a substantial part of the corporation's dealings within the state, the certificate must be obtained, seems sound. If this were not so, any corporation would be entitled to complete at least one transaction without obtaining a certificate, however clear and indisputable its intention to carry on business in the state regularly thenceforward. This would conflict with the legislature's intent to protect citizens in all their dealings with foreign corporations. See Farrior v. New England, etc., Co., 88 Ala. 275. The practical difficulty of determining whether the single transaction evidences a purpose to engage in business permanently, is one of fact purely, and is properly for the jury. Oakland Sugar Mill Co. v. Wolf Co., 118 Fed. Rep. 239.

DEATH BY WRONGFUL ACT - STATUTORY LIABILITY DAMAGES. — An action was brought under a statute providing for the recovery of damages by the widow or personal representative of a person killed through negligence or default. Held, that

though mortality tables may be produced to assist the jury in estimating the decedent's expectancy of life, they may not be used to show the probable duration of the life of the plaintiff, widow of the decedent. Emery v. Philadelphia, 208 Pa. St. 492.

The general rule under similar statutes is that the damages recoverable are those suffered by the beneficiaries, not the loss to the decedent's estate. Rajnowski v. Detroit, etc., R. R. Co., 74 Mich. 20. Under Lord Campbell's Act, the jury apportion the sum recovered among the beneficiaries according as each has been damaged. The Pennsylvania statute, like those of most states, provides for its distribution among the beneficiaries in proportion as they would take the decedent's personalty in case of intestacy. The inconsistency arising under this mode of distribution, of allowing a recovery based on the damage to the several beneficiaries, and then dividing the whole arbitrarily, has been noted. Richardson v. New York, etc., R. R. Co., 98 Mass. 85; Richmond v. Chicago, etc., R. R. Co., 87 Mich. 374. This consideration leads the court in the present case to base the damages solely on the husband's expectancy, independently of the fact that the wife's may be much shorter, and her loss consequently less than the damage done to the decedent's estate. By general authority elsewhere, damages are based on the joint expectancy of the two. Hall v. Germain, 14 N. Y. Supp. 5. On examination of the Pennsylvania decisions it would appear that the court, in striving for consistency, has deviated from established precedent to avoid a hypothetical complication concerning only the distribution of the damages and not necessarily involved in the main issue. Cf. Caldwell v. Brown, 53 Pa. St. 453; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. St. 185.

DEEDS DELIVERY IN ESCROW SUBSEQUENT SALE BY GRANTOR BEFORE HAPPENING OF CONTINGENCY. A father, in consideration of the release of a debt, made a deed of land to his daughter, which he delivered to a stranger to give to the daughter upon his death. Subsequently the father made a grant of the same land to the defendant, who knew all the facts. After the father's death, the daughter brings this action to quiet title. Held, that the plaintiff is entitled to relief, since title is in her by relation from the time of delivery. Emmons v. Harding, 70 N. E. Rep. 142 (Ind., Sup. Ct.). See NOTES, p. 138.

EQUITY JURISDICTION STATUTE OF LIMITATIONS.

REMOVAL OF CLOUD ON TITLE ACQUIred under - Held, that equity will not grant a decree confirming the title to land claimed by possession under the statute of limitations. Miller v. Robertson, 24 Can. L. T. 205 (Can., Sup. Ct., April, 1904).

This decision can be reached only on the ground that adverse possession does not ripen into title, for where one is in possession and has title a bill quia timet will lie. Holland v. Challen, 110 U. S. 15, 20. It seems now generally recognized that one in possession for the statutory period gains an undisputed legal title. Scott v. Nixon, 3 Dr. & War. 388. For most purposes, the statute should not be regarded as merely stripping the owner of all remedy. It extinguishes his title and vests it in the adverse possessor. It is against the very purpose of statutes of limitations, in their nature statutes of repose, to deny a bill for the destruction of the existing paper title. Arring ton v. Liscon, 34 Cal. 365. The present case seems clearly wrong on theory and is against overwhelming authority. In accord are only two jurisdictions. See McCoy v. Johnson, 70 Md. 490; Contee v. Lyon, 19 D. C. 207. The argument that whether title was, in fact, acquired through adverse possession is properly determinable at law ought to have no weight. If only equity can afford relief, it is no objection that a question of fact must be decided.

EQUITY JURISDICTION WINDING UP A BENEFIT SOCIETY. - Employees of a company formed a voluntary association for the payment of sick benefits and old age pensions out of the dues. The society was neither incorporated nor registered. After the company ceased business, the association gained no new members so that its funds became unequal to the increasing liabilities, present and contingent. A majority of the members accordingly voted for a dissolution by the court and commenced for this purpose an action in equity in which all classes of members were represented. Held, that equity has jurisdiction. In re Lead Company's, etc., Society, [1904] 2 Ch. 196.

This jurisdiction is not rested on the equity jurisdiction for the dissolution of partnerships, because a benefit society is not a partnership, since it has neither the purpose nor the incidents of one. See Flemyng v. Hector, 2 M. & W. 172. Nor is the jurisdiction confined to relief against the fraud or the illegal acts of the officers, nor to societies where the funds are held in trust for the members. See Atnip v. Tennessee Mfg. Co., 52 S. W. Rep. 1093 (Tenn.). The basis of the jurisdiction is the recognized purpose of equity to protect property rights which have no adequate protection at law.

See Rigby v. Connol, L. R. 14 Ch. D. 482, 487. In the principal case it was apparent that the society was steadily losing assets; that, if the pensions were continued, the contingent rights of the younger members would be worth nothing; in short that the society was insolvent and could no longer fulfil its mission. The court gave the only adequate protection to the property rights of the members, a winding up of the society. Most of the law of friendly societies is comparatively modern and unsettled, but this jurisdiction of equity is supported by the few authorities in point. See Pearce v. Piper, 17 Ves. 1; Reeve v. Parkins, 2 Jac. & W. 390.

ESTOPPEL - ESTOPPEL IN PAIS-FAILURE TO ACT. The plaintiffs, bankers in Toronto, discounted a note purporting to bear the defendants' signature and placed the proceeds to the credit of the holder. On the same day that the defendants, merchants in Montreal, received from the plaintiffs a notice to provide payment at maturity, the plaintiffs paid out the proceeds of the discount. If the defendants had wired notice that the signature was a forgery this payment would have been stopped, but a letter sent in due course would have been too late. Held, that since the defendants did not telephone or send a telegram, they are estopped to assert the forgery. Ewing v. Dominion Bank, 40 Can. L. J. 468 (Can., Sup. Ct., June, 1904). See NOTES, p. 140.

DECLARATIONS CONCERNING BODILY CONDITION.

-

EVIDENCE The plaintiff was injured in a railro 1 collision. Evidence was offered that a witness who was not a physician had heard him say with his hands on his head, "Oh, if I could only get rid of these headaches." Held, that the evidence is admissible. Cashin v. New York, etc., R. R. Co., 185 Mass. 543

Evidence of statements of present physical suffering is generally admitted when the physical condition of the person making the statement is in issue, and evidence of statements of past suffering is generally excluded. State v. Fournier & Co., 68 Vt. 262. This rule is not universal, however, and in a few states no evidence of assertions of pain is admitted unless the assertions were made to a physician. Davidson v. Cornell, 132 N. Y. 228. In Massachusetts and a few other jurisdictions, evidence of statements of past suffering is admitted when the statements were made to a physician. Roosa v. Boston Loan Co., 132 Mass. 439. In the principal case, since the statement was not made to a physician, the admission of the evidence had to be rested solely on the ground that it was a statement of present suffering. Although no authority directly in point has been found, the court seems to have been justified in holding that it was admissible on that ground. The statement necessarily carried with it an idea of past suffering as proof of which the evidence would be inadmissible; but since it also clearly referred to present pain it was not on that account objectionable.

- DUTIES

EXECUTORS AND ADMINISTRATORS - LIABILITY FOR DEFAULT OF COEXECUTOR. One of two joint executors received certain checks in discharge of a mortgage debt due the estate, and another debt was paid to him in cash. He forwarded both checks and cash to his coexecutor, who represented himself as having opportunity to make an investment to better advantage. The latter cashed the checks, kept their proceeds and the money received, and later became insolvent. Held, that the executor who originally received the checks is not liable to the estate for their proceeds, but is liable for the cash received and turned over to his coexecutor. In re Johnson, 87 N. Y. Supp. 733.

In cases of joint administration, each executor has power over the whole of the estate. He is therefore not liable for waste or misappropriation by his coexecutor of funds which the latter collected. Duncan v. Davison, 40 N. J. Eq. 535. But for that part of the estate which he himself collects he is responsible, and cannot ordinarily evade liability by turning the funds over to a coexecutor. Langford v. Gascoyne, 11 Ves. Jun. 333. In New York, however, it is held that receipt of a check is not receipt of the money, and that the executor who cashes the check is alone responsible. In re Provost, 87 N. Y. App. Div. 86. This distinction seems difficult to support. The executor who receives the check can, and ordinarily should, present it for payment and hold the proceeds for the estate; how by turning the check over to his coexecutor he escapes the responsibility which would attach to him if he cashed it and remitted the proceeds, it is hard to see. And it would seem that in this particular a check is like a bond or note, for which an executor under such circumstances is liable. Townsend v. Barber, Dick. 356; Edmonds v. Crenshaw, 14 Pet. (U. S.) 166.

FEDERAL COURTS - RELATION OF STATE AND FEDERAL Courts - EFFECT OF DECISION OF STATE COURT ON THE VALIDITY OF A STATUTE UNDER THE STATE CONSTITUTION. - Held, that where rights have been fixed under a contract before an

adjudication by the state courts upon the validity of a statute under the state constitution, the federal courts may declare a statute valid which the state courts have declared void. Great Southern, etc., Co. v. Jones, 24 Sup. Ct. Rep. 576. See NoTES, p. 134.

FRAUDULENT CONVEYANCES TRANSFERS FOR VALUE - COVENANT IN CONSIDERATION OF MARRIAGE TO CONVEY ALL AFTER-ACQUIRED PROPERTY. By an ante-nuptial settlement a man settled property on his wife and children and covenanted to convey on similar trusts all property, except business assets, which he should acquire during the joint lives of himself and wife. Later, after giving notice of suspension of payment, he conveyed a house and furniture worth £17,000 to the trustees of the settlement and soon after was adjudicated a bankrupt. Held, that the conveyances are not void under Stat. 13 Eliz. c. 5, against fraudulent conveyances. Re Reis, Ex parte Clough, 23 Law Notes 169 (Eng., C. A.).

It is well settled that from the point of view of bankruptcy proceedings marriage is a good consideration for a conveyance. Fraser v. Thompson, 1 Giff. 49; Tolman v. Ward, 86 Me. 303. Nor can creditors avoid a conveyance in pursuance of an antenuptial agreement to settle a fixed sum. Ex parte McBurnie's Trustees, 1 DeG. M. & G. 441; Kinnard v. Daniel, 13 B. Mon. (Ky.) 496. But it has always been supposed that such a contract, to be valid against creditors, was limited to what was reasonable under all the circumstances. See Ex parte McBurnie's Trustees, supra; Goldsmith v. Russell, 5 DeG. M. & G. 547. An earlier case is opposed to the present decision, holding a contract to convey all future-acquired property void against creditors as contrary to the plain reason and policy of the law, whether made with actual intent to defraud or Ex parte Bolland, L. R. 17 Eq. 115. The earlier decision seems preferable. In spite of the exception of business assets from the operation of the contract, the decision reached in the present case would allow a business man practically to exclude his future creditors from realizing upon his estate. The argument sometimes advanced that such a contract may be specifically enforced is not conclusive against the right of third parties to avoid it. Seymour v. Wilson, 19 N. Y. 417.

not.

HIGHWAYS INJURIES FROM OBSTRUCTIONS LIABILITY OF PERSONS OBSTRUCTING FOR INJURIES TO PASSERS-BY.-The defendant unlawfully obstructed the sidewalk by placing large boxes upon it, in passing which the plaintiff slipped on vegetable matter dropped by a third person, and fell. But for the defendant's obstruction, she would probably not have stepped where she did. She sues the defendant for injuries caused by the fall. Held, that the plaintiff may recover. Garibaldi and Cuneo v. O'Connor, 112 Ill. App. 53.

In the present case, the court seems to create a new liability on the part of a person who unlawfully obstructs the sidewalk. The effect of the decision is to impose upon him an absolute liability to passers-by for injuries caused by its condition. No other case has been found which goes to this extent. The authorities cited by the court seem to be based upon the ground that the obstruction was the proximate cause of the injury. Cf. Murphy v. Legett, 164 N. Y. 121. In the principal case, however, the unlawful obstruction maintained by the defendant was at most only a causa sine qua non; and it is clear that, generally speaking, the commission of an act without which the injury would not have occurred is not enough, in itself, upon which to base a liability. It therefore seems that in the absence of authority in support of the doctrine enunciated, the court might fairly have refused to hold the defendant liable.

INJUNCTIONS - ACTS RESTRAINED - NUISANCES. The defendant had erected enormous blast furnaces at great expense. These furnaces were continually throwing out ore dust which fell upon the plaintiff's property in large quantities, creating a nuisance. Held, that a permanent injunction will issue to restrain the defendant from so using its furnaces. Sullivan v. Jones and Laughlin Steel Co., 57 Atl. Rep. 1065 (Pa). This decision seems, in effect, to overrule an earlier Pennsylvania case and to place that state among the jurisdictions which, in issuing a permanent injunction, disregard the fact that it will damage the defendant far more than it will benefit the plaintiff. Cf. Richards's Appeal, 57 Pa. St. 105. The plaintiff's remedy at law in these cases is plainly inadequate. In most jurisdictions he is put to repeated actions for damages which fail to compensate him, and in all he is left unable to prevent the virtual taking of his property for the private purposes of the defendant. Notwithstanding this, the cases in accord with the earlier decision hold that the injunction is a matter of grace, and as such should not be granted where it is against the balance of convenience. Huckenstine's Appeal, 70 Pa. St. 102. This result amounts to a grant of immunity to a person who has made a sufficiently expensive outlay on the instruments of his tort.