CONSTRUCTIVE TRUSTS. In a recent New York case (Hutchinson v. Hutchinson, 32 N. Y. Sup. 390), the plaintiff conveyed lands to the defendant, his sister, without consideration, and in reliance on her parol promise to hold in trust for him. Plaintiff brought action for reconveyance, and it was held that the case fell within the Statute of Frauds, and that plaintiff was not entitled to reconveyance. There was no actual fraud other than breach of promise, and the court held that a confidential relation did not exist between plaintiff and defendant. The case is in line with the New York decisions, which have held consistently since Sturtevant v. Sturtevant, 20 N. Y. 39, that a grantor who conveys on grantee's parol promise to hold in trust for him, can get no redress in case of breach of promise; unless there exist a confidential relation between the parties to the action (Goldsmith v. Goldsmith, 39 N. E. R. 1067). Fraud would take the case out of the Statute, but the New York Courts require something more than a mere breach of parol promise to reconvey to constitute fraud in a legal sense. (Wood v. Rabe, 96 N. Y. 414 at 226.) The English doctrine, on the other hand, recently reaffirmed in Davis v. Whitehead (1894), 2 Ch. Div. 133 (overruling Leman v. Whitley, 4 Russ. 423), allows the grantor to compel reconveyance, not by way of enforcing the parol agreement of trust, but because it would be fraud on the grantor to allow the grantee to keep what he has obtained without giving the promised consideration, or on the ground perhaps that the grantor is entitled — regardless of any element of fraud- to specific restitution for failure of consideration without more. Possibly the escape from the results of the New York doctrine may be found in a more liberal construction of the term "confidential relations," although there is no present authority for extending its meaning beyond very narrow limits. In any event, it is to be regretted that the New York courts have failed to notice, or at least to discuss failure of consideration as a ground for specific restitution. Specific restitution on this ground is not specific performance; it is built up on a very different theory. That the result arrived at in each case is the same a decree for conveyance of land deeded on grantee's parol promise to reconvey-is merely fortuitous. The New York courts, however, are strongly committed, by a long line of precedents, to the doctrine of the principal case; and outside of New York, except in a few jurisdictions, notably Indiana (Giffen v. Taylor, 37 N. E. R. 393), the whole weight of American authority is adverse to the English view. One must be sanguine, then, to hope that the doctrine of specific restitution in cases of this sort will soon find wide acceptance in American courts.

REPORT OF AMERICAN BAR ASSOCIATION FOR 1894. Probably no other event of the year calls together so brilliant an assemblage of legal talent as the annual meeting of the American Bar Association. The published reports of these gatherings always contain suggestive matter for the lawyer concerned to strengthen the morale and raise the standard of the profession, as well as for one interested in a discussion of current legal questions; and this latest volume is particularly rich in material of both kinds.

Prominent in the former class are papers by John F. Dillon on "The True Professional Ideal," and by Wm. A. Keener on "The Inductive Method in Legal Education." Professor Keener's contribution stirred up the old discussion of the comparative merits of the lecture, text-book,

and case systems of teaching law. The consensus of opinion seemed to be that the case method was gaining ground, and that books of cases with some independent matter, like those edited by Prof. J. B. Thayer of Harvard were, perhaps, best adapted to the use of reasonably mature and able students.

An interesting letter was read, describing a Legal Dispensary conducted by the Law School of the University of Pennsylvania, designed to afford students some practical experience in dealing with actual cases. It may be noted in passing that since that time a similar experiment has been attempted by Harvard law students with somewhat profitable results.

The paper read by Charles C. Allen, of Missouri, on "Injunction and Organized Labor," an examination of the jurisdiction of courts of equity in cases of civil disturbance like the Chicago railway riots of last year, evoked the most elaborate discussion of the meeting. Perhaps an idea of the attitude of the profession generally upon this subject may be gained by noting that over three-fourths of those who took part in the argument disagreed with Mr. Allen, who thought an injunction a misconceived and unadvisable remedy under such circumstances. Both from a legal and a political point of view, the full text of the discussion contained in the report is well worth reading.

The other published proceedings of the Association, while interesting, need no special mention except the rather startling result of an investigation conducted by Mr. Frank C. Smith, of New York, which showed that one-half of all the points of law decided in the American courts of last resort in 1893 were points of procedure not involving the merits of the case at issue. Discouraging to relate, the code States make a worse showing than those that have retained the common-law practice. The task of reforming legal procedure seems truly Sisyphean.

RECENT CASES.

AGENCY-EMPLOYMENT OF AN ATTORNEY BY COLLECTING AGENCY - COMPENSATION. - Defendant placed a draft in the hands of a collecting agency for collection, and the agency employed plaintiff, an attorney in the city where the debtor lived, to collect and remit. Plaintiff seeks to recover for his services from defendant. Held, collecting agency acted as principal in the transaction and not as mere agent, and so plaintiff has no claim against defendant. Dale v. Hepburn, 32 N. Y. Supp. 269.

This case follows the settled law in New York and the U. S. Supreme Court. Hoover v. Greenbaum, 61 N. Y. 305; Hoover v. Wise, 91 U. S. 308. In some jurisdictions the courts hold that where paper is to be collected at a distance, there is an implied authority for collecting agency to employ a sub-agent to make the collection on account of the creditor. The question is one of fact, was the agreement that the agency should collect the debt, or that it should merely employ some one else to collect it for the creditor? In the absence of any controlling evidence, it is submitted that the New York rule is the better; for, as the Court says, "if banks into whose care negotiable instruments are placed for collecting are regarded as principals, so much the more should a collection agency whose sole business is to collect claims placed in its hands, be so regarded."

BAIL AFTER CONVICTION PENDING APPEAL POWER OF JUSTICE OF SUPREME COURT. Paragraph 2, rule 36, of the Supreme Court of the United States (11 Sup. Ct. iv.), provides that where a writ of error is allowed in case of conviction of a crime, the justice or judge of the Circuit Court or District Court shall have power to

admit the accused to bail. Held, (1) the Supreme Court had no power to make the above rule, because the common law gives no right to admit to bail after conviction and sentence; no United States statute gives the right; nor does the power to make necessary rules for the orderly conduct of the business of the court give the right. (2) Under this rule Mr. Justice White of the Supreme Court, not being a justice of the circuit where the case was tried, could not make a valid order admitting_defendant to bail pending the case on writ of error. United States v. Hudson, 65 Fed. Rep. 68.

Although bail will not ordinarily be allowed after conviction, yet it seems to be well settled that, in the absence of statute denying bail to a prisoner after conviction and sentence and pending appeal, the admission to bail is purely discretionary with the court, and may be allowed. 1 Bishop's Criminal Procedure, § 253, and cases cited. The decision on the second point would seem to be a sound interpretation of the Supreme Court rule. But both points were reversed in the following case.

BAIL AFTER CONVICTION PENDING APPEAL POWER OF JUSTICE OF SUPREME COURT. The defendant in preceding case petitioned for a writ of mandamus to the district judge to compel him to admit petitioner to bail. Held, (1) bail may be taken after conviction pending appeal, by order of the proper court, judge, or justice. (2) The order of Mr. Justice White admitting defendant to bail subject to the approval of the District Judge, was valid, since "any justice of this court, having power to allow the writ of error . . . has the authority. . . to order the plaintiff in error to be admitted to bail." Mandamus granted to compel district judge to act and to exercise his discretion with regard to admitting petitioner to bail, not to control his discretion. Hudson v. Parker, 15 Sup. Ct. Rep. 450 (Brewer and Brown, JJ., dissenting).

The decision on the first point is unexceptionable. See references cited under preceding case. The second point is more doubtful. As a general rule, any court having appellate jurisdiction may take bail. But as Mr. Justice Brewer says, in his dissenting opinion, the Supreme Court, by naming in the rule certain judicial officers as the ones to admit to bail, has, on the principle expressio unius exclusio alterius, declared that it has named all who are to exercise that authority.

BANKRUPTCY - PETITIONING CREDITOR - POWER TO GO BEHIND A JUDGMENT OBTAINED BY COMPROMISE. A bankruptcy petition was presented to a registrar founded on a judgment obtained by compromise. The registrar found the compromise unfair though not fraudulent, and refused the petition. On appeal to the Court of Appeal, it was held, by Lord Esher and Lopes, L. J., that the court could go behind the judgment and determine whether it was fair; that this was necessary to protect the debtor as well as the other creditors, who would be deprived of their right to get hold of the property if the debtor were put into bankruptcy; that as the fairness of the compromise could be looked into after the debtor was put into bankruptcy, it should be used to protect the other creditors. Rigby, L. J., dissented on the ground that, historically considered, bankruptcy courts had the power to reject a judgment debt only in cases where there was no consideration (which a later Bankruptcy Act had changed) and on ground of fraud. In re Hawkins, Ex parte Troup [1895], 1 Q. B. 404.

The dissenting Lord Justice is undoubtedly correct in his treatment of the cases historically; but the principle enunciated in those cases carries us as far as the majority of the court have gone in this case. See remarks of James, L. J., Ex parte Kibble, 10 Ch. App. p. 373, at p. 376; also of Lord Esher in Ex parte Lennox, 16 Q. B. D. 315, at 321, 322. The principle seems to be that, "having regard to the serious consequences to the debtor [and to other creditors] of allowing a bankruptcy notice to proceed, if the debtor at the hearing... can satisfy the court that the judgment was obtained ... under circumstances that make it inequitable that it should be enforced against him, the court would have power to set the notice aside." Robson's Law of Bankruptcy, 7th ed. p. 190. See also Williams' Law of Bankruptcy, 6th ed. § 37, pp. 113-114. The result of the majority seems an admirable one to reach, and comes within the principle of the previous cases.

BILLS AND NOTES - BANKER'S LIEN DISCHARGE OF SURETY. --- A bank discounted and held a note, and at the maturity thereof, held on general deposit for the maker a sum sufficient to pay the note. It permitted this sum to be checked out. Held, that a surety on the note was thereby discharged. Pursifull v. Pineville Banking Co.'s Assignee, 30 S. W. Rep. 203 (Ky.). See NOTES.

CARRIERS WARRANTY OF SEAWORTHINESS. Held, that a carrier is liable for losses incurred on a shipment of cattle through shrinkage or fall in market value,

resulting from delay occasioned by a breach of the warranty of seaworthiness, although such breach was due to a hidden defect in the propeller shaft of the vessel, not attributable to the carrier's negligence. The Caledonia, 15 Sup. Ct. Rep. 537.

This decision falls in line with the weight of authority and better opinion both in England and the United States, holding a shipowner responsible as an insurer as to latent defects in his vessel, unknown to him and not discoverable upon examination. 3 Kent's Comm. 205. The strong dissenting opinion of three members of the court is based upon an alleged distinction between an injury caused directly by breach of the warranty of seaworthiness and loss resulting from delay caused by such breach. There is no doubt that, generally speaking, a carrier is not an insurer as to the time of delivery or losses flowing out of accidental delay. But this is an action for consequential damages due to a breach of warranty. The fault of the carrier is the breaking the warranty; and it cannot be said that the delay caused thereby is excusable within the rule relied upon by the dissenting justices.

CARRIERS WHEN A CARRIER BECOMES WAREHOUSEMAN. A railway company, having carried plaintiff's goods to their destination, stored them in its warehouse, in which they were destroyed by fire, through no fault of the defendant. Held, that a railroad's liability as a common carrier continues until notice of the arrival of the goods is given to the consignee, and he has had a reasonable time thereafter to remove them. Lake Erie & W. R. Co. v. Hatch, 39 N. E. Rep. 1042 (Ohio).

The case is one of first impression, committing Ohio to the view advanced by the New York Courts in opposition to the great weight of authority, making the liability of the carrier as such terminate with the arrival of the goods at their destination. Formerly, an actual delivery of the goods was required of the carrier; and now that modern modes of transportation have made personal delivery impracticable, the jurisdictions which have settled upon a reasonable time for removal, or a reasonable time with notice, in substitution, claim that they are thus following the old common-law rule. In reality they have extended it beyond its utmost limits by making the carrier liable as a carrier when he has ceased to be one, and when the reasons for his extraordinary liability have ceased to exist.

CHOSES IN ACTION ASSIGNMENT - PRIORITY OF NOTICE TO DEBTOR. - Held, where two assignments of a chose in action are made to different persons, the assignee who first gives notice of his claim to the debtor has the prior right, though the assignment to him is later in date than that to the other assignee. Methven et al. v. Staten Island Light, Heat & Power Co., 66 Fed. Rep. 113.

This case follows the settled rule in the U. Š. Supreme Court, - Spain v. Hamilton's Adm'r, 1 Wall. 604,- in England and in some of our States. The contrary rule, that the prior assignee prevails, is established in New York, Massachusetts, and many of our States. It is submitted that the New York and Massachusetts rule is correct on principle, and that the general principle that "he who is first in time is best in right" should determine this class of cases, except (1) where the second assignee has been misled by prior assignee's failure to notify the debtor, and (2) where the second assignee has obtained payment, or, what is practically the same thing, reduced the claim to a judgment or effected a novation, in which cases the second assignee has obtained a legal right, and should not be compelled to give it up.

The case of Spain v. Hamilton's Adm'r, 1 Wall. 604, which established the rule in the U. S. Supreme Court, seems to have been decided on a misapprehension of an earlier decision by the same court,- that of Judson v. Corcoran, 17 How. 612. There the second assignee had reduced the claim to possession, and the decision is expressly put on that ground. And yet Spain v. Hamilton's Adm'r is decided as being clearly within the principles recognized in Judson v. Corcoran.

CONSTITUTIONAL LAW MUNICIPAL BOUNDARIES - LEGISLATIVE AND JUDICIAL POWER.- An act of the legislature authorized the annexation of a strip of land lying in an adjoining county, to a city. The strip was entirely separated from the city by four distinct municipal corporations, running from the county line to the original boundary of the city. Plaintiff, a landowner in the strip, brought a bill to enjoin the collection of municipal taxes. Held, that the legislature had no power to extend the limits of a specially chartered city by adding to it lands entirely separated by intervening territory. Injunction granted. City of Denver v. Conlehan, 39 Pac. Rep. 425 (Col.).

The court go into the definitions of "city" and "town," and emphasize the idea of unity, of collectiveness, which they think is conveyed by the use of such terms. They conclude by saying that it was never contemplated by the law that the territorial limits of a city might include distinct parcels of land, separated from the city proper by intervening territory. Smith v. Sherry, 50 Wis. 210, seems to support the view taken by the court. But actual instances inconsistent with the above may be noted. Portions of sev

eral English counties lie, like islands, entirely within the boundaries of neighboring counties. In Massachusetts, Cohasset is separated from the rest of Norfolk County by two intervening towns. For some time after the passage of the act authorizing the annexation of certain suburbs to Boston, Brighton was a part of the city, though at no point contiguous thereto. Doubtless similar separations exist. It is submitted that the principal case is an instance of the assumption, on the part of a court, of a power to regulate a matter which might be more properly left, it would seem, to the discretion of the legislature. See Cooley, Const. Lim. (6th ed.) 587, 616, and cases cited; 1 Dill. Mun. Corp. (4th ed.) § 185 and cases cited.

CONSTITUTIONAL LAW POLICE POWER-EXAMINING BOARD. A statute provided for an examining board of plumbers consisting of three experienced plumbers, the chief inspector of plumbing and drainage of the board of health, and the chief engineer having charge of sewers. It further required all persons engaged in the business of employing or master plumbers to undergo an examination by said board as to their fitness for conducting such a business. Held (Peckham, O'Brien and Bartlett, JJ., dissenting), the act is not void, but a valid exercise of the police power. People v. War. den of City Prison, 39 N. E. Rep. 686 (N. Y.).

The case shows a tendency in the New York court to retract from the position taken in People v. Marx, 99 N. Y. 377, and to recognize the bounds beyond which the judiciary cannot interfere with the doings of the legislature. The court takes the ground that where an act is intended and appropriate to accomplish the good of protecting the public health, the exercise of legislative discretion is not the subject of judicial review; and that an act should, if possible, be taken as having been passed with this intent. In accordance with this view, the Supreme Court of the United States, in considering the validity of a statute prohibiting the sale of oleomargarine, has said, "If all that can be said of this legislation is that it is unwise, or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine, as an article of food, their appeal must be to the legislature, or to the ballot-box, not to the judiciary. The latter cannot interfere without usurping powers committed to another department of government." Powell v. Pennsyl vania, 127 U. S. 678. The judiciary of Kansas has in a late case failed to recognize this limitation, and has declared void an ordinance restricting the business of city scavengers to persons appointed by the city. In re Lowe, 39 Pac. Rep. 710.

CONSTITUTIONAL LAW-RAILWAY COMPANY REGULATION OF FARES-REASONABLENESS. - Plaintiff below sued a railway company under a statute which fixed the maximum rate of fare at three cents per mile, and which gave a penalty to the passenger for each overcharge. The company made offers tending to prove that the statutory rate was unreasonable, as under it the company was unable to pay the interest on the capital invested. The offers were ruled out, and the plaintiff had judgment, which was affirmed by the Supreme Court of Arkansas, and, on error, by the Supreme Court of the United States. St. L. & S. F. Ry. Co. v. Gill, 15 Sup. Ct. Rep. 484. The act incorporating the company which built the road originally authorized a charge of five cents per mile; and defendant, having succeeded to the franchise by a mesne conveyance, claimed the same privilege. The court held that the right to fix the fare did not accompany the property in its transfer to a purchaser, in the absence of express provision to that effect in the statute, citing Morgan v. Louisiana, 93 U. S. 217; Wilson v. Gaines, 103 U. S. 417; and Railway v. Miller 114 U. S. 176, as authority.

The court intimated that legislation establishing a rate of fare which was so unreasonable as to practically destroy the value of the carriers' property, might be held unconstitutional, as depriving the company of its property, without due process of law, considering and approving Railroad Commission Cases, 116 U. S. 307; Dow v. Beidelman, 125 U. S. 681; Railway v. Minnesota, 134 U. S. 418; Railway v. Wellman, 143 U. S. 339, and Reagan v. Trust Co., 154 U. S. 362. But to declare an act unconstitutional is an exercise of the highest power of the court, and the necessity of such a decision must plainly appear. Here the defendant's offers had reference only to that part of the road over which plaintiff had been carried, and did not tend to prove the statutory rate unreasonable for the road as a whole, or for that part of it which was situated in Arkansas. The decision of the State Court (54 Ark. JO1), that the correct test was the effect of the act on the defendant's entire line within the limits of the State, was followed; and the court therefore sustained the law for lack of proof going to this extent.

CONTRACTS DELIVERY IN INSTALMENTS - BREACH IN LIMINE DAMAGES.Plaintiff contracted to deliver to defendant 30 bales of silk, - 10 bales July 25, 10 bales August 15, and to bales September 10. Plaintiff failed to make first delivery, and August I defendant gave notice that it cancelled the contract. Plaintiff could not have made the delivery due August 15, but was able to make the last one, had defendant permitted it.