laborers claimed payment of their wages. The estate was not sufficient to pay both the laborers and the bank. Held, that the bank has an equitable lien on the proceeds of the contract to the extent of the assignment to it, which lien is superior to the labor creditors' right to priority under the National Bankruptcy Act. In re Cramond, 145 Fed. Rep. 966 (Dist. Ct., N. D. N. Y.).

As a result of the assignment, the bank acquired a valid equitable lien on the fund arising from the contract. Peugh v. Porter, 112 U. S. 737. And it is well settled that a trustee in bankruptcy takes the property subject to all liens valid as against the debtor and his creditors. Hewit v. Berlin Machine Works, 194 U. S. 296. But § 64 b of the Bankruptcy Act provides that wages due laborers shall be given a priority against the estate. U. S. COMP. STAT. 1901, p. 3447. On the other hand, however, § 67 d states that certain liens, including those like the present, shall not be affected by the Act. U. S. COMP. STAT. 1901, p. 3449. In order to give effect to this later provision it would seem clear that the lienholders should be paid before the wage-earners are given their priority. Two of the other three cases found on the point are in accord with the present one. In re Frick, 1 Am. B. Rep. 719; In re Kirby-Dennis Co., 95 Fed. Rep. 116. In the case contra no reason is given for the conclusion. In re Tebo, 101 Fed. Rep. 419.

BANKS AND BANKING-Deposits - RIGHTS OF DEPOSITOR UPON SUBDEPOSIT BY DEPOSITARY BANK. In order to stifle competition, several banks made an agreement by which bank A submitted the highest bid for county funds and thereby secured the deposit. Following out the agreement, bank A deposited a certain part of the county funds received by it with the other banks, drawing upon them only for their proportionate share of drafts by the county upon bank A. The other banks paid bank A the same rate of interest which A, in accordance with its bid, was paying the county. Bank A failed. Held, that the county may recover the sums on deposit in the other banks in preference to the other creditors of Bank A. In re Salmon, 145 Fed. Rep. 649 (Dist. Ct., W. D. Mo.). See Notes, p. 140.

BILLS AND NOTES - CHECKS Negligence OF DRAWER. - An executor drew several checks on the appellant bank, in each instance leaving a space to the left of the amount, and forwarded them to the respondents, his co-executors, who signed them. The first drawer then raised the amounts by filling in the mentioned spaces. The bank, exercising due care, honored the checks for the altered amounts, and the respondents sued the bank. Held, that there was no evidence to go to the jury that the respondents violated any duty to the bank, which accordingly is liable for the amount of the forged checks. Colonial Bank of Australasia v. Marshall, 22 T. L. R. 746 (Jud. Com. P. C., July 27, 1906). See NOTES, p. 139.

BILLS AND NOTES - DOCTRINE OF PRICE 7. NEAL DRAWEE'S RIGHT TO RECOVER PAYMENT OF FORGED CHECK. - The defendant caused to be presented to the plaintiff a check purporting to be drawn by A on the plaintiff in favor of B. The check was indorsed by the defendant and the several parties through whose hands it had passed in the usual course. The plaintiff, as did the defendant, believed the check to be genuine, paid it, and charged it to the account of A. Later it was discovered that A's name had been forged, and the plaintiff brought suit to recover back from the defendant the amount of the check so paid. Held, that the money, being paid under a mistake of fact, can be recovered back in the absence of proof that the defendant had been misled or prejudiced by the plaintiff's failure to detect the forgery. First National Bank of Lisbon v. Bank of Wyndmere, 108 N. W. Rep. 546 (N. D.). This case is contrary to the well-settled doctrine of Price v. Neal. For a full discussion of the principles involved, see 4 HARV. L. REV. 297; 16 ibid. 514.

CARRIERS EJECTION OF PASSENGER PRESENTATION OF WRONG TRANSFER CHECK.-A conductor gave a passenger a wrong transfer check, which the conductor of a second car refused to accept. The passenger was evicted on

failure to pay another fare. Held, that the company is liable in damages for the eviction. Georgia Ry. & Electric Co. v. Baker, 54 S. E. Rep. 639 (Ga.). See NOTES, p. 137.

CARRIERS LIENS CONVERSION BY REFUSAL TO DELIVER DAMAGED GOODS WITHOUT PAYMENT OF FREIGHT. - The defendant, a carrier, so negligently delayed the transmission of certain goods consigned to the plaintiff that the damages due to the delay were greater than the amount of the freight charges. Without tendering these charges, the plaintiff demanded the goods, and upon the carrier's refusal to deliver them without payment, brought suit for their value. Held, that the plaintiff may recover, because the carrier has been guilty of conversion. Missouri Pacific Ry. Co. v. Peru-Van Zandt Implement Co., 85 Pac. Rep. 408 (Kan.).

It has been held for almost half a century that a consignee whose goods have been damaged in transit can offset his claim against the charges for freight. Gleadell v. Thomson, 56 N. Y. 194. Reasoning from this position, the further decision has been made that, if the damages equal or exceed the amount of the freight, the carrier's lien is destroyed entirely and the consignee may bring replevin. Bancroft v. Peters, 4 Mich. 619. The result obtained in allowing replevin is highly satisfactory, since it allows the owner the possession and use of his goods, settling at the same time the dispute as to freight and damages. See Dyer v. Grand Trunk Ry. Co., 42 Vt. 441. The result in trover is harder for the carrier, for it compels it to pay for the goods and become a retail merchant to prevent loss. See Miami Powder Co. v. Port Royal, etc., Ry. Co., 38 S. C. 78. But, granting that replevin lies properly, trover should also logically be allowed; and even from an equitable point of view it is justifiable. It saves the consignee the unnecessary advance of the freight charges, and simply imposes on the carrier the necessity of deciding at its peril whether or not the damage is in excess of the freight, without causing it any loss unless it unwisely asserts the lien.

CARRIERS STEAMSHIPS

RIGHT OF PASSenger to BertH. - The plaintiff, on buying a ticket for a steamboat journey over-night, asked for a berth. He was told that he must wait until the boat had started. He complied, but was unable to get a berth, and had to sit up all night. Thereupon he brought action. Held, that, on this evidence, it is error to grant a nonsuit. Patterson v. Old Dominion S. S. Co., 53 S. E. Rep. 224 (N. C.).

Carriers must serve their passengers with adequate facilities for their comfort as well as for their safety. Fort Worth & D. C. Ry. v. Hyatt, 12 Tex. Civ. App. 435. To the carrier's discretion is left open the whole scope of reasonable facilities; only when affirmatively shown to be unreasonable will the courts interfere. Gardner v. Providence Telephone Co., 23 R. I. 312. On voyages of length it seems that a berth must be provided and that custom includes it in the price of transportation. The Oriflamme, 3 Saw. (U. S.) 397. As to carriage by water over-night a distinction must be made. Sleeping-quarters involve additional compensation, passengers frequently travel without them and companies habitually oversell their accommodations. In view of these customs a traveler reasonably expects with his passage-ticket only the privilege of buying a berth if he apply in time. Having professed, however, to sell berths, the company should, in reason, provide an appropriate place for their purchase before the passenger has irrevocably committed himself to the journey. Chicago & Alton Ry. v. Flagg, 43 Ill. 364. Furthermore, silence, as here, when the supply is exhausted would seem to amount to a misrepresentation. The decision may be rested on either of these grounds.

CHINESE EXCLUSION ACTS - EXCLUSION OF CHINAMAN CLAIMING CITIZENSHIP. Held, that a Chinaman within the United States who resists deportation on the ground that he is an American-born citizen, may not be deported until the right of the government to deport him has been judicially reviewed. Moy Suey v. United States, 33 Nat. Corp. Rep. 40 (C. C. A., Seventh Circ., April, 1906).

The court holds that there is a fundamental distinction between this case and that of a Chinese citizen of the United States who has left the United States and is excluded when he seeks to return. For a discussion of the latter case, see 19 HARV. L. Rev. 60.

CONSTITUTIONAL LAW - DUE PROCESS OF Law - ADMINISTRATION OF ESTATE OF LIVING PERSON. A state statute provided that the orphans' court might, under certain restrictions, judicially determine to be dead any person who had been absent and unheard of for seven years. Under this statute a petition was filed asking that letters of administration be granted upon the estate of such an absentee. The court decreed the absentee judicially dead, and granted the letters as prayed. An appeal was taken. Held, that the lower court was without power so to decree, as the statute is null and void under the due process clause of the fourteenth amendment to the Constitution of the United States. Savings Bank of Baltimore v. Weeks, 64 Atl. Rep. 295 (Md.).

The decision is sustained by authority. For a discussion of a case which involved the interpretation of a similar statute, see 19 HARV. L. Rev. 535.

CONSTITUTIONAL LAW-SEPARATION OF Powers- DelEGATION OF LEGISLATIVE POWERs to Boards of HEALTH. — An act of assembly provided that the boards of health of boroughs should adopt suitable rules for the registration of plumbers, and that breach of these rules should be a misdemeanor punishable by a fine or imprisonment. Under this act the Board of Health of Dubois provided that every master plumber should register his name and address, and, upon showing certain qualifications described by the board, should receive a license permitting him to work. The defendants were indicted for doing plumbing without a license. Held, that the act of assembly is unconstitutional as a delegation of legislative power. Commonwealth v. Shafer, 37 Pittsb. Leg. J. 71 (Pa., Clearfield Co. Ct., May, 1906).

Except in the case of municipal corporations, the legislature cannot constitutionally delegate its lawmaking power to agents. See In re Kollock, 165 U. S. 526. This rather vague rule has been liberally interpreted in favor of boards of health. For example, a statute authorizing measures preventive of smallpox confers constitutional authority upon a board to compel vaccination during an epidemic. Blue v. Beach, 155 Ind. 121. So a statute giving general sanitary power constitutionally authorizes a board to keep adulterated milk out of a city. Polinsky v. The People, 73 N. Y. 65. If it were not for this broad interpretation of the courts, public policy might demand an extension of the exceptional legislative privileges of municipal corporations to boards of health. See Cooper v. Schultz, 32 How. Prac. (N. Y.) 107; 19 HARV. L. REV. 203. The case under consideration follows by analogy a decision in the same jurisdiction, that power to prepare a "standard insurance policy" is legislative and may not be delegated to an insurance commissioner. O'Neill v. The Fire Insurance Co., 166 Pa. St. 72. In making this analogy the court attaches importance to the size of the penalty provided by the statute in the present case, but it disregards the significant fact that the agent empowered is a board of health.

CORPORATIONS STOCKHOLDERS' RIGHTS INCIDENT TO MEMBERSHIP DISTRIBUTION OF DIVIDENDS IN VIEW OF LIQUIDATION BETWEEN LIFE TENANT AND REMAINDERMAN. A corporation sold out to a trust and went into liquidation. Part of its assets was retained and turned into cash, which was distributed among the stockholders as a dividend. Both the life tenant and the remainderman of certain stock held in trust claimed this dividend. These assets were admitted on demurrer to represent surplus earnings. Held, that the remainderman takes. Bulkeley v. Worthington Ecclesiastical Society,

63 Atl. Rep. 351 (Conn.).

Whether life tenant or remainderman is entitled to dividends is determined primarily from the testator's intention as revealed in the instrument of trust; this failing, the law provides rules. Lowry v. Farmers' Loan & Trust Co.,

172 N. Y. 137. The Pennsylvania rule apportions to each party that part of the dividend earned during his term. Earp's Appeal, 28 Pa. Št. 368. The Massachusetts rule seizes upon the time of declaration as its criterion, and gives to the life tenant all cash dividends declared during his life, no matter when earned. Minot v. Paine, 99 Mass. 101. Connecticut follows this rule. Smith v. Dana, 77 Conn. 543. In their desire to formulate a workable rule, of easy application by trustees and courts, the latter courts have laid great stress on the doctrine that dividends are never due until declared. See 16 HARV. L. REV. 54. This reason for the rule logically forbids its application to dividends declared in view of liquidation, for they are not discretionary dispersals of profits, but ministerial distribution of assets. Gifford v. Thompson, 115 Mass. 478; Brownell v. Anthony, 189 Mass. 442. The court in the principal case, therefore, properly disregards as immaterial the admission on demurrer that only earnings were represented, and makes the Connecticut law a homogeneous whole. Cf. Second Universalist Church v. Colegreve, 74 Conn. 79. The rule seems to be the same whether the liquidation be for reorganization, consolidation, or final wind-up. Clarkson v. Clarkson, 18 Barb. (N. Y.) 646; In re Armitage, [1893] 3 Ch. 337. No decision has been noted under the Pennsylvania rule. But see Simpson v. Moore, 30 Barb. (N. Y.) 637.

CRIMINAL LAW-SPECIFIC INTENT - CRIMINAL RESPONSIBILITY Of DiRECTORS FOR ULTRA VIRES APPLICATION OF FUNDS. - The vice-president of the New York Life Insurance Co., who was also a member of the finance committee, having consented to an ultra vires application of the funds of the company, was arrested for statutory larceny. Habeas corpus proceedings to the warrant were instituted. Held, that there is no evidence disclosed to have justified the magistrate in issuing a warrant. People ex rel. Perkins v. Moss, 113 N. Y. App. Div. 329.

This decision reverses that of the lower court, commented upon in 19 HARV. L. REV. 61I.

DAMAGES MEASURE OF DAMAGES RECOVERY For Death of Wife. The plaintiff placed his mentally unbalanced wife in the hospital of the defendant for treatment. As she needed constant watching, the defendant contracted with the plaintiff to furnish such service. The defendant negligently failed to guard the woman, and in her delirium she threw herself from the window of her room and was killed. The plaintiff brought suit for breach of the contract, asking as damages the value of the services, care, and affection of his wife. Held, that the action for the negligent breach of the contract should be ex delicto and not ex contractu, and that, treating this cause as an action ex delicto, damages cannot be recovered at common law for the death of the wife. Duncan v. St. Luke's Hospital, 113 N. Y. App. Div. 68.

The plaintiff in the present case was clearly entitled to his action ex contractu. In all cases where the suit is for a breach of duty stipulated for by contract, express or implied, whether case lies or not, assumpsit does. Nevin v. Pullman Palace Car Co., 106 Ill. 222; Pittsburg v. Grier, 22 Pa. St. 54; cf. Brown v. Boorman, 11 Cl. & Fin. 44. Yet it may well be that by existing law the plaintiff was entitled to nothing more than nominal damages for the breach of his contract. It is settled that at common law no action ex delicto lies for the death of a human being. Green v. Hudson River Rd. Co., 28 Barb. (N. Y.) 9; Major v. Burlington R. R., 115 Ia. 309. The reason usually given for the doctrine, actio personalis moritur cum persona, is undoubtedly good where the plaintiff sues as personal representative; but where he is suing for loss of services, it utterly fails. As the wrong to the plaintiff is quite independent of the wrong to the deceased, the doctrine which denies recovery for loss of services must be regarded as anomalous. See Osborn v. Gillet, L. R. 8 Exch. 88, 93. Yet the rule being established as to tort cases where the duty violated is imposed by law, there seems to be no logical reason why any different result should obtain where the duty violated is imposed by contract. But as the doctrine is anomalous where the action is for loss of services, the court might well have drawn back in the principal case and awarded the damages sought.

DAMAGES

Measure OF DAMAGES RECOVERY FOR MENTAL SUFFERING NEGLIGENTLY CAUSED. - The plaintiff and her invalid daughter, while passengers on defendant's railroad, were greatly annoyed and frightened as a result of the negligence of its employees, but they received no physical impact of any kind. The employees knew of the relationship between the two. Held, that the plaintiff, in addition to damages for physical injury resulting from mental suffering caused by the mistreatment of herself, can recover for her mental suffering caused by the mistreatment of her daughter. Gulf, C. & S. F. Ry. Co. v. Coopwood, 96 S. W. Rep. 102 (Tex. Civ. App.).

Texas permits recovery for bodily harm due to mental suffering caused negligently without physical impact. Gulf, etc., Ry. Co. v. Hayter, 93 Tex. 239. When there is a recognized basis for an original recovery, this jurisdiction allows additional damages for mental suffering caused by the negligent act. Texas, etc., Ry. Co. v. Armstrong, 93 Tex. 31. No fault can be found with the decision on the ground that causal connection was broken, for the defendant's servants, knowing of the relationship between the plaintiff and the invalid, could reasonably have foreseen that mental suffering to the plaintiff would result from their acts. But the court might well have refused to go to such an extreme, on the ground of expediency. This stand has been taken in Minnesota. Sanderson v. Northern Pac. Ry. Co., 88 Minn. 162. And the same view had been adopted in a previous Texas case misinterpreted in the present decision. Pullman Palace Car Co. v. Trimble, 8 Tex. Civ. App. 335. The majority of jurisdictions allow recovery for mental suffering negligently caused only as an additional element of damage when there has been physical impact. Kennon v. Gilmer, 131 U. S. 22. These jurisdictions, however, almost unanimously deny such recovery for mental suffering due to another's injury. Cleveland, etc., Ry. Co. v. Stewart, 24 Ind. App. 374. Therefore, generally speaking, the result in the main case would be doubly impossible outside of Texas.

DIVORCE ALIMONY — RIGHT OF Divorced Wife TO LANDS CONVEYED IN FRAUD Of Dower AS SECURITY FOR ALIMONY. - A man under engagement to marry made a gratuitous conveyance of land in order that it might not be subject to the dower right of his prospective wife. The grantee knew the object of the conveyance. The marriage took place, and later the wife secured a divorce and alimony. Held, that there is a lien on the land conveyed to secure payment of the alimony. Goff v. Goff, 53 S. E. Rep. 769 (W. Va.).

The weight of authority is that a later creditor may set aside a conveyance in fraud of a prior one. Claflin v. Mess, 30 N. J. Eq. 211. The obligation of a husband not to make conveyances to defraud his wife of dower is similar to the obligation of a debtor not to defeat his creditors by such conveyances. See Youngs v. Carter, 10 Hun (N. Y.) 194, 199. When the wife has recovered alimony, she becomes, as to it, a quasi-creditor. See Bouslough v. Bouslough, 68 Pa. St. 495, 499. Logically, therefore, the divorced wife should be allowed to set aside the conveyance which was in fraud of her own prior right of dower. And even disregarding the creditor analogy, she should be allowed to do so in jurisdictions where alimony is given as a substitute for dower. Probably where alimony is regarded as a mere allowance for support, the result should also be the same, for it is inequitable that the husband should be allowed to profit by a divorce resulting from his own wrongful conduct. The only case found in point with the present is in accord, and seems to be decided on the ground that the conveyance before marriage was in fraud of the wife's marital property rights in general. Way v. Way, 67 Wis. 662.

EASEMENTS SEVERANCE

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AND TRANSFER OF RIGHT EQUITABLE RIGHTS RESULTING FROM ATTEMPTED RESERVATIONS OF EASEMENTS IN GRANTS OF DOMINANT TENEMENTS. - The plaintiff conveyed land to the defendant "reserving the easements in the street. . . now being used by the New York Elevated Railroad Co." The defendant received compensation from the railroad company for the impairment of the easements. Held, that the defendant is liable as trustee for the plaintiff of the sums thus received. Freund v Biel, 35 N. Y. L. J. 1567 (N. Y., App Div., July, 1906). See NOTES, p. 136.