though the denial of the husband's right were not equally well settled, it is plain that the step which, it is claimed, is required by justice is not a new application of an existing common-law principle, but the creation of a new principle. Such a step would be better taken by statute and not accomplished by sheer judicial legislation.12

RECENT CASES.

ATTORNEYS RELATION BETWEEN ATTORNEY AND CLIENT ATTORNEY'S CONSENT TO HEARING BEFORE LESS THAN FULL Court. - A statute provided that every appeal to a certain court should, when the subject-matter was a final order, be heard before not less than three judges, unless all parties filed a consent to its being heard before two judges. The parties themselves not being present in court when such an appeal was called, their counsel filed a written consent that the appeal should be beard before the two judges present. Held, that the two judges may hear the appeal. Haworth v. Pilbrow, [1912] Wkly. Notes 6 (Eng., C. A., Dec. 12, 1911).

An attorney has been said to be the general agent of the client in all matters which may reasonably be expected to arise for decision in the cause. See Prestwich v. Poley, 18 C. B. N. s. 806, 816. He has complete authority over the suit, the mode of conducting it, and all that is incident to it, though not over collateral matters. See Swinfen v. Lord Chelmsford, 5 H. & N. 890, 922. It is well settled that an attorney has the power to consent to a reference of the cause to arbitrators without special authority from his client. Filmer v. Delber, 3 Taunt. 486; Brooks v. New Durham, 55 N. H. 559. Cases of this class rest upon the principle that authority to prosecute a suit implies a power to adopt any mode of prosecution which the law provides. Buckland v. Conway, 16 Mass. 395; Smith v. Bossard, 2 McCord Eq. (S. C.) 406. The principal case seems within this rule. The statute, as amended, made legal the trial of a final appeal before two judges. STAT. 38 & 39 VICT. c. 77, § 12; STAT. 62 & 63 VICT. c. 6, § 1. Hence the consent of the attorney to this mode of trial is within his implied powers and in such a case is the consent of the client himself.

BANKS AND BANKING DEPOSITS- SPECIAL DEPOSIT OF CHECK AS COLLATERAL SECURITY. A bank discounted notes for the plaintiff and took from him as collateral security a check for $2000, charging his account with $2000. The bank suspended payment. The notes were duly paid. The plaintiff sued to recover the $2000 left as collateral security. Held, that he must share as a general creditor. Richardson v. Cheney, r46 N. Y. App. Div. 686, 131 N. Y. Supp. 594.

When a bank discounts notes, and extends credit for their value, it is a simple debtor. Carstairs v. Bates, 3 Campb. 301. The ordinary relation of banker to depositor is that of debtor. Marine Bank v. Fulton Bank, 2 Wall. (U. S.) 252. If the depositor agrees not to use part of his credit, the banker remains no less a debtor. But if the collateral security is deposited to be returned in specie, the transaction constitutes a bailment. Jenkins v. National Village Bank,

hold property and depriving the husband of his right to her services, the husband is no longer liable for debts of his wife contracted before marriage. Howarth v. Warmser, 58 Ill. 48.

12 See 2 BISHOP, MARRIAGE AND DIVORCE, 5 ed., § 469.

58 Me. 275. If the bank is not allowed to mix the fund with its general assets, there is a trust. McLeod v. Evans, 66 Wis. 401, 28 N. W. 173; Harrison v. Smith, 83 Mo. 210. Deposits for a special purpose, such as security, have often been called trusts. People v. City Bank of Rochester, 96 N. Y. 32; Kimmel v. Dickson, 5 S. D. 221, 58 N. W. 561. Whether they are is essentially a question of fact. Mutual Accident Association v. Jacobs, 141 Ill. 261, 31 N. E. 414; Anderson v. Pacific Bank, 112 Cal. 598, 44 Pac. 1063. Ordinarily, when money is deposited, the bank may use it as its own. It merely promises to pay over a similar amount when the special purpose is accomplished. Hill v. Smith, 12 M. & W. 618. In the absence of special circumstances to show that the fund is to be kept intact, the deposit creates only a debt. Mulford v. People, 139 Ill. 586, 28 N. E. 1096. Thus a deposit to be paid to a third party may be withdrawn before the beneficiary accepts. Brockmeyer v. Washington National Bank, 40 Kan. 376, 19 Pac. 855; First National Bank v. Higbee, 109 Pa. St. 130.

BILLS OF PEACE — APPLICABility to Negligence Cases. An explosion in the complainant's mine killed 110 workmen, whose administrators, the defendants, sued the complainant at law under the Employers' Liability Act. The complainant's bill asked to have these suits enjoined, and its liability determined in equity, and damages assessed in equity if it should be found liable. Held, that the case is not within equity jurisdiction. Southern Steel Co. v. Hopkins, 57 So. 11 (Ala.).

Pomeroy's rule that the mere presence of a single issue in many suits against the same person is a basis of equitable interposition has been much disputed. See I POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 264, note (b). It receives its severest test when applied to enjoining several suits for injuries caused by a single act of the complainant, for courts hesitate to deny jury trials in such cases. If the complainant presents to the equity court an issue of contributory negligence, or of damages, with each defendant, so that no simplification would result from a single trial, Pomeroy's rule does not apply; but where a single issue is presented, by the complainant's alleging absence of negligence on his part, jurisdiction should be taken. See I POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 251%. But courts failing to appreciate this distinction have rejected Pomeroy's rule altogether. Tribette v. Illinois Central R. Co., 70 Miss. 182, 12 So. 32; Ducktown Sulphur, Copper, & Iron Co. v. Fain, 109 Tenn. 56, 70 S. W. 813; Vandalia Coal Co. v. Lawson, 43 Ind. App. 226, 87 N. E. 47. It is to be regretted that the Alabama court, in overruling a former decision based on Pomeroy's rule, while now recognizing that the case was not within the rule, nevertheless repudiates the rule. Only one opinion adopts Pomeroy's rule in a negligence case. Whitlock v. Yazoo & Mississippi Valley R. Co., 91 Miss. 779, 45 So. 861 (tacitly overruling Tribette v. Illinois Central R. Co., supra).

BOUNDARIES PAROL AGREEMENT TO ESTABLISH BOUNDARY. The owner of a lot conveyed a part of it to the defendants by a deed in which the boundaries were described by courses and distances. The vendor pointed out the boundary to the purchaser and the latter erected a house along the line indicated. The plaintiff by mesne conveyances acquired the adjoining portion of the lot and discovered that the established line did not correspond with the deed. The plaintiffs and each of their predecessors had been shown the land prior to their respective purchases. Held, that the boundary established by the parol agreement should govern. Price v. De Reyes, 119 Pac. 893 (Cal.).

A parol agreement between adjoining landowners as to the location of a disputed boundary, followed by acquiescence in possession according to the agreement, is binding. Steidl v. Link, 246 Ill. 345, 92 N. E. 874; Tritt v. Hoover, 116 Mich. 4, 74 N. W. 177. If the description in the deed is ambiguous, such an agreement is not within the Statute of Frauds, as it involves no transfer

of title, but merely an application of the language of the instrument. Blair v. Smith, 16 Mo. 273; Hagey v. Detweiler, 35 Pa. St. 409. But if the description is clear, the agreement is avoided by the statute, as it involves an actual transfer of land. Olin v. Henderson, 120 Mich. 149, 79 N. W. 178; Vosburgh v. Teator, 32 N. Y. 561. Yet it has been held that a line thus marked out and acted upon is conclusive, even when the description is certain. Helm v. Wilson, 76 Cal. 476, 18 Pac. 604. Cf. Knowles v. Toothaker, 58 Me. 172. It seems just that the original parties or a purchaser with notice should be estopped to dispute the validity of such an agreement, but it is difficult to see how a purchaser who acted in reliance on the deeds without notice of the agreement could be affected by it. McKinney v. Doane, 155 Mo. 287, 56 S. W. 304. The principal case may be supported on the ground that the purchasers, having seen the property, had notice of its agreed bounds. Bartlett v. Young, 63 N. H. 265.

CONSTITUTIONAL LAW CONSTRUCTION, OPERATION, AND ENFORCEMENT OF CONSTITUTIONS - RIGHT OF COUNTY TO TEST CONSTITUTIONALITY OF STATUTE. - A statute authorized the expenditure of state money for certain roads within certain counties. The plaintiff county sought to restrain the state officers from proceeding under the statute on the ground that it was unconstitutional. The county was not required to contribute in taxes as a corporation, and its property rights were not affected. Held, that the county has no legal capacity to sue. County of Albany v. Hooker, 204 N. Y. 1, 97 N. E. 403. No person whose rights are not directly affected by a statute can object to its constitutionality. Clark v. Kansas City, 176 U. S. 114, 20 Sup. Ct. 284. The doctrine is general that, in the absence of a statute imposing the duty on some official, any taxpayer may enjoin the misapplication of public funds by municipal officers, on the ground that the act, in increasing taxation, directly injures him. Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249. But where his individual interests are not involved, the taxpayer cannot sue. Prince v. Crocker, 166 Mass. 347, 44 N. E. 446. Counties are local subdivisions of the state. Board of Commissioners of Hamilton County v. Mighels, 7 Oh. St. 109. They are not protectors of private interests or property of taxpayers and cannot intervene to prevent injuries to them. See People v. Ingersoll, 58 N. Y. 1, 29. So a county cannot complain if the state regulates the funds to be raised to pay county debts of a public character. State ex rel. Dillon v. Braxton County Court, 60 W. Va. 339, 55 S. E. 382; City Council of City and County of Denver v. Board of Commissioners of Adams County, 33 Colo. 1, 77 Pac. 858. In the principal case, the county in its corporate capacity will suffer no injury, since it is not a taxpayer; and, as the court points out, the public by authorized proceedings should have brought the suit. Clearly if the funds of the county as a corporation, in its possession or to which it was equitably entitled, were being misappropriated, the county could sue. Bridges v. Board of Supervisors of County of Sullivan, 92 N. Y. 570; Woods v. Board of Supervisors of Madison County, 136 N. Y. 403, 32 N. E. 1011.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW STATUTE REQUIRING COMMITMENT FOR REFUSAL TO TESTIFY BEFORE LEGISLATIVE COMMITTEE BY JUDGE OF COURT WITHOUT HEARING. - A statute provided that when a witness duly subpoenaed refused without reasonable cause to testify before a committee of the legislature, he might by warrant be committed to jail until he submitted to do so, by a judge of any court of record upon proof by affidavit of the facts. Held, that the statute is unconstitutional. In re Barnes, 132 N. Y. Supp. 908 (App. Div.).

Notice and an opportunity to be heard are, as a general rule, essential elements of due process of law. See Simon v. Craft, 182 U. S. 427, 436, 21 Sup. Ct. 836, 839. One apparent exception to the rule, however, has always existed

in the case of summary commitments for contempt committed in the presence of the court. Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77; Thwing v. Dennie, Quincy (Mass.) 338. But in the case of a contempt either criminal or civil, not committed in the presence of the court, there must always be a hearing and, in most cases, notice before attachment. Ex parte Stricker, 109 Fed. 145; Ex parte Langdon, 25 Vt. 680. But cf. Ex parte Haley, 37 Mo. App. 562. The legislature may also punish a contempt, such as a refusal to testify, committed before it or its committee carrying on an investigation for legislative purposes. People ex rel. McDonald v. Keeler, 99 N. Y. 463, 2 N. E. 615; Lowe v. Summers, 69 Mo. App. 637. But where the contempt is committed before a committee, it cannot be punished by the committee but must be reported to the legislative body for its action. See In re Davis, 58 Kan. 368, 379, 49 Pac. 160, 163; COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 193. As held in the principal case, therefore, it would seem not due process of law to allow a court to punish without notice or a hearing a contumacious act which not only did not occur in its presence but was not a contempt of the court but of the legislature.

CONTEMPT POWER TO PUNISH FOR CONTEMPT- POWER OF SUPREME COURT TO PUNISH FOR CONTEMPT OF LOWER Court. - A newspaper published statements tending to prove that a person accused of murder and remanded to appear before a lower court was guilty. Application was made to the Supreme Court to punish the members of the staff of the paper for contempt. Held, that the Supreme Court has jurisdiction in the matter. In re Packer, [1911] V. L. R. 401.

Every superior court possesses an inherent power of employing contempt proceedings to prevent any interference with its administration of justice. Ex parte Fernandez, 10 C. B. N. S. 3; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77. This power can be exercised only by the court whose authority is being defied. Androscoggin & Kennebec R. Co. v. Androscoggin R. Co., 49 Me. 392; People v. Placer County Judge, 27 Cal. 151. Accordingly, the few American cases on the subject hold that an upper court cannot punish for contempt of a lower court. Lessee of Penn v. Messinger, 1 Yeates (Pa.) 2; In re Emery, 149 Mich. 383, 112 N. W. 951. The earlier English cases also took this view. Rex v. Burchett, 1 Str. 567; In the Matter of an Application for an Attachment for Contempt of Court, 2 T. L. R. 351. The recent English authorities, however, decide that where a lower court is powerless to prevent an interference with its administration of justice, the upper court will intervene by an attachment for contempt. Rex v. Davies, [1906] 1 K. B. 32; Rex v. Clarke, 103 L. T. 636. These authorities argue that the purpose of contempt proceedings is to protect the administration of justice rather than the dignity of any court. Yet it is because a particular court is being prevented from exercising its proper functions that the summary contempt process is allowed. See United States v. Hudson, 7 Cranch (U. S.) 32, 34; Cartwright's Case, 114 Mass. 230, 238. Indictment is the proper remedy for the public wrong involved. Rex v. Fisher, 2 Camp. 563. The reasoning of the principal case is therefore open to criticism, although the result accomplished is perhaps desirable.

COPYRIGHTS

COMMON-LAW RIGHT: PROPERTY IN MUSICAL IDEA. The plaintiff was the author of the music of a song, on each published copy of which appeared the reservation "Public performance strictly forbidden." The defendant without authorization transferred the music to phonograph records. Held, that the plaintiff is not entitled to an injunction against the making or selling of the records. Monckton v. Gramophone Co., 132 L. T. J. 295 (Eng., C. A., Jan. 24, 1912).

For a discussion of the principles involved, see 19 HARV. L. REV. 134.

CORPORATIONS

TORS.

DIRECTORS AND OTHER OFFICERS - DE FACTO DIREC

The de facto directors of a private corporation, in due form elected other directors to fill vacancies in their board. An action, in statutory form, was brought to oust all the directors from office. For the new directors it was argued that they had become de jure officers, because elected by officers acting in the due course of their assumed duties. Held, that the election of all the directors be set aside. Matter of Ringler & Co., 204 N. Y. 30. See NOTES, p. 550.

CORPORATIONS - DIRECTORS AND OTHER OFFICERS - DIRECTORS' ADVERSE INTEREST IN CONTRACT WITH CORPORATION. A director of a corporation, who was also the superintendent of its factory, contracted with it through its president to superintend its proposed branch factory. Held, that the corporation cannot avoid the contract. Wainwright v. P. H. & F. M. Roots Co., 97 N. E. 8 (Ind.). See NOTES, p. 553.

CORPORATIONS

INSOLVENCY OF CORPORATION VOLUNTARY PETITION IN BANKRUPTCY BY DIRECTORS. - By resolution of the board of directors without a vote of the stockholders, a corporation filed a voluntary petition in bankruptcy. Held, that the adjudication will not be set aside. In re Kenwood Ice Co., 189 Fed. 525 (Dist. Ct., D. Minn.).

The Bankruptcy Act of 1867 permitted a voluntary petition by a corporation by a vote of the majority of stockholders present at a meeting called for the purpose. U. S. REV. STAT., 1878, § 5122. The present act permits a voluntary petition, but provides no form of corporate action. 36 U. S. STAT. AT Large, Sess. II. c. 412, § 3. Directors have power to commit acts of bankruptcy. Thus the weight of authority permits them to make a general assignment for the benefit of creditors. Rogers v. Pell, 154 N. Y. 518, 49 N. E. 75; Birmingham Drug Co. v. Freeman, 15 Tex. Civ. App. 451, 39 S. W. 626. But cf. Abbot v. American Hard Rubber Co., 33 Barb. (N. Y.) 578. Directors may commit a preference. Dana V. Bank of the United States, 5 Watts & S. (Pa.) 223. And they may apply for a receiver. Exploration Mercantile Co. v. Hardware & Steel Co., 177 Fed. 825. They may also make a written admission of the corporation's inability to pay debts and willingness to be adjudged a bankrupt. In re Lisk Mfg. Co., 167 Fed. 411. Contra, In re Bates Machine Co., 91 Fed. 625. Nor is this an ineffectual act of bankruptcy when the directors solicit a petition by creditors. In re Moench & Sons Co., 123 Fed. 965. So the step taken by the principal case seems inevitable. Contra, Donly v. Holmwood, 4 Ont. App. 555. Objection on the ground that directors may thus effect a fundamental change should have been taken to the doctrine of general assignment. Bank Commissioners v. Bank of Brest, Har. (Mich.) 106. See Beaston v. Farmers' Bank of Delaware, 12 Pet. (U. S.) 102, 138. Contra, Town v. President, etc. of Bank of River Raisin, 2 Doug. (Mich.) 530. Moreover, it should be noted that the Act of 1867, requiring a vote of the stockholders, did not allow the corporation a discharge, whereas the present act does. In re Marshall Paper Co., 102 Fed. 872.

DAMAGES MEASURE OF DAMAGES EFFECT OF NOTICE OF SPECIAL CIRCUMSTANCES AFTER DELIVERY OF GOODS TO CARRIER. - The defendant undertook to carry a printing press by rail to the residence of the plaintiff. Part of it was delivered, and the plaintiff thereupon gave notice of special damages he would suffer if the remainder was not promptly delivered. The plaintiff brought suit for the special damages alleged to have accrued from delay after the notice was given. Held, that such special damages cannot be recovered. Hassler v. Gulf, C. & S. F. Ry. Co., 142 S. W. 629 (Tex., Ct. Civ. App.).

Unless notice of special circumstances be given to the carrier, damages for delay are limited to those which both parties may reasonably be supposed to