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In view of the adoption by courts of law of equitable principles, and the fact that the reformed procedure allows the assignee to sue in his own name, the further question presents itself, whether these changes in procedure have not led or may not lead to the recognition of a legal title to the chose in action in the assignee after notice to the debtor. Without legislative interference, this result was ultimately reached in the Roman Law, which regarded the giving of notice to the debtor as taking possession of the chose by the assignee. Such a view would involve a radical departure from the traditions of our law, and it has been held that the changes of the reformed practice are procedural merely. Leach v. Greene (1875) 116 Mass., 534 ; Glenn v. Busey (D. C. 1886) 5 Mackey 233. This question would arise under the following circumstances : A, in a jurisdiction under the new procedure, assigns without consideration a debt to B. After notice to the debtor, A executes a release. B sues the debtor who, in addition to the release, pleads lack of consideration for the assignment. If B acquires legal title to the debt, this defense is invalid.

RECENT DECISIONS.

ADMIRALTY-SALVAGE–INCIDENTAL BENEFIT RENDERED UNDER CONTRACT WITH Third Party. The defendant barque was forced aground by another vessel. Two tugs under contract with the other vessel towed her from the defendant barque, thus making it possible for three other tugs to get the defendant barque afloat. All five tugs claimed salvage. Held, the two under contract with the other vessel could not recover. The Emilie Gailine (1903) 1 P. 106.

Authority is very meagre both in England and in the United States. That service performed for one vessel which incidentally results in benefit to another will not support a salvage claim against the latter was held in The H. M. Hayes (1861) 1 Lush. 355, 374; 7 uttle v. The Thomas Hil. yard (1893) 55 Fed. 1015; The City of Columbia (1893) 56 Fed. 252, and this would seem to be sufficient authority to support the principal case. The apparently contrary holdings in The Woburn Abbey (1869) 21 L. T., N. S. 707 ; The Vandyck (1881) L. R. 7 P. D. 42, may be distinguished from the cases previously cited on the ground that in the latter the services rendered were more direct than in the former.

AGENCY-APPARENT AUTHORITY—INTENTION TO BENEFIT PRINCIPAL. An agent signed a charter party ostensibly for his principal, the defendant, but in reality for the benefit of a third party. Held, the agent acted within the scope of his apparent authority and the defendant was bound. Rainey v. Potter (1903) 120 Fed. Rep. 651. An agent underwrote a policy of guaranty to the plaintiffs, acting ostensibly for his principal but in reality for his own benefit. Held, since the agent did not act in behalf of his principal he exceeded his authority and the principal was not bound. Hambro v. Burnand (1903) 2 K. B. 399.

In the first case the court finding that the agent was acting within his apparent authority regarded the question of benefit to principal as immaterial ; in the second case the court said that since he was not acting for his principal's benefit the agent exceeded his authority. The second case follows the well-settled rule in England, which view is usually adopted in the Federal Courts and some of our State courts, viz.: that unless the act of the agent though authorized is for the benefit of the principal he is not bound. Grant v. Norway (1851) 10 C. B. 665; Pollard v. Vinton (1881) 105 U. S. 7 : Bank v. C. B. E N. Ry. Co. (1890) 44 Minn. 224. But the better doctrine seems to be that of the first case, viz.: that if the agent is performing acts within the scope of his authority, actual or apparent, whether these be for the principal's benefit or not is peculiarly within the agent's knowledge and not chargeable to a third party. The plaintiff having shown that the act came within the apparent or actual authority, the agent's intention is immaterial. N.Y., N. H. & H. Ry. Co. v. Schuyler (1865) 34 N. Y. 30 ; Bank v. Aymar (1842) 3 Hill 262; Wichita Bank v. Ry. Co. (1878) 20 Kan. 519 ; Sioux City Ry. Co. v. Bank (1880) 10 Neb. 556. ATTORNEYS-PURCHASE OF CLAIMS UNDER N. Y. CODE OF Civil PROCEDURE -TITLE OF SUBSEQUENT HOLDER An attorney purchased a bond and mortgage with the intent and for the purpose of bringing an action thereon, although by the Code of Civil Procedure (SS 73, 75) this is prohibited, and is made punishable as a misdemeanor. Said bond and mortgage were assigned by the attorney to his wife, who now brings suit to foreclose. Held, while the attorney himself could not enforce the security thus acquired, he can pass good title to a bona fide holder, or to one with full

knowledge of the prohibited purchase, and the courts will enforce such title, provided that its enforcement is not in fact in the interest of the attorney.

Beers v. Washbond (1903) 83 N. Y. Supp. 993. Although the provisions of the Revised Statutes (2 Rev. St. First Ed. pp. 288-9, pt. 3 c., 3 tit. 2, $$ 75, 81), allowing the defendant to set up a prohibited purchase as a good defense to an action brought by the attorney, were not re-enactei in the Code of Civil Procedure, such a defense is nevertheless recognized and upheld. Browning v. Marvin (1883) 100 N. Y. 144 ; Maxon v. Cain (1897) 22 App. Div 270. In order for the defense to prevail, however, it must be shown that the sole purpose of the attorney in purchasing the claim was to bring suit thereon. If such a purpose was merely secondary and contingent the defense cannot be sustained. Moses v. Mc Davitt (1882) 88 N. Y. 62. As the acknowledged object of the statutory enactments was to prevent attorneys from buying claims in order to obtain costs by prosecution, Moses v. Mc Davitt, supra; De Forest v. Andrews (1899) 27 Misc. 145, there seems to be no good reason for impeaching the title of such claims in the hands of third persons, who are not, in fact, suing in the interest of the attorney. The holding of the case is, therefore, entirely sound.

BANKRUPTCY_Trustee's Right to SURPLUS INCOME OF Trust Estate. A trustee in bankruptcy sought to reach surplus income of a trust estate, to which a bankrupt was entitled. Under the laws of New York the right of the beneficiary could not be transferred ($ 83, Laws 1895, p. 574: c. 547), but could be reached in equity by a creditor's bill after return of execution unsatisfied. $ 78, Laws of 1896, p. 573, c. 547. Held, the surplus does not vest in the trustee in bankruptcy under the provision in the Act of 1898, $ 70, subd. 5, vesting in the trustee all property which the bankrupt could, by any means have transferred or which might have been levied on and sold under judicial process against him. Butler v. Baudouine (N. Y. 1903) 84 App. Div. 215.

This is a strict construction of $ 70, subd. 5, of the Bankruptcy Law, confining its operation to expressly enumerated cases. Full force is given to the holding in Dittmar v. Gould (1901) 60 App. Div. 94, that the specified procedure to reach the surplus is exclusive. Precisely the opposite conclusion has been reached in a parallel case in the Federal court sitting in the Southern District of New York, in re Baudouine (1899) 96 Fed. 536, on the grounds of liberal construction with a view to effectuating the objects of the whole act, which would require the bankrupt to turn over in good faith all property subject in any way to the demands of any creditors. The latter case finds support in exhaustive dicta in a case in the Fourth Department, Brown v. Barker (1902) 68 App. Div. 594, which goes to the extent of stating a right of transfer in the beneficiary, notwithstanding the prohibitory statute.

CARRIERS - THEFT OF MONEY-LIABILITY OF CARRIER AND OF SLEEPING CAR COMPANY. A passenger in defendant's day coach, temporarily left on the window sill her purse, containing money not intended for travelling purposes, and it was stolen. Held, the defendant was not liable. Levins v. N. Y. etc. R. Co. (Mass. 1903) 66 N. E. 803.

A passenger in defendant's sleeping car left his money in a suit case beside his berth. On awakening he discovered it had been stolen. Held, the defendant was liable for the loss. Morrow v. Pullman Co. (Kas. 1903) 73 S. W. 281.

As the Massachusetts court points out, the liability of a carrier for assaults of its servants or others upon a passenger, as for a failure to protect the passenger, Bryant v. Rich (1870) 106 Mass. 180, has not been extended to cover failure to protect against theft of personal property not baggage, exclusively in the passenger's custody.Weeks v. N. Y. etc. R. Co. (1878) 72 N. Y. 50. Where it accepts custody of such property the carrier's liability is that of a bailee for hire, Jordan' v. Fall River Co. (Mass. 1849) 5 Cush. 6g, and this is the relation of a sleeping car company to personal effects, of its patrons, Root v. Sleeping Car Co. (1887)

Div. 400.

28 Mo. App. 199, except, during the day, such as he may reasonably be expected to keep on his person. . Chamberlain v. Pullman Co. (1893) 55 Mo. App. 474.

These considerations dispose of the principal cases. In the first action the owner, retaining custody, of her purse, the carrier assumed no liability. In the other case the defendant failed in its duty to maintain a reasonable watch. Lewis v. Sleeping Car Co. (1887) 143 Mass. 26-. CONSTITUTIONAL LAW-DEPRIVATION or Property-Police Power. Defendants were convicted on a charge of posting advertising bills upon a fence around vacant property adjacent to a park in violation of an ordinance of the Park Board of New York City prohibiting such acts unless a description or drawing of the advertisement be filed previously and a permit issued therefor. Held, the attempt of the statute to control the use of the property was a substantial appropriation of property without compensation, violating $ 6 of Article i of the Constitution, which could not be justified as an exercise of police power. The Board could not forbid such use, and if it could not forbid, it could not make the use conditional upon obtaining its consent. People v. Green (N. Y. 1903) 85 App.

Property as defined here for purposes of constitutional limitation includes every lawful right of user which the owner may conceivably wish to exercise. Every limitation upon rights of user is pro tanto a diminution of the property, and as such a ground for the plea of invasion of constitutional right. This broad conception of the term has previously met with favor in the courts of New York. People v. Otis (1882) 90 N. Ý. 48; Matter of Jacobs (1885) 98 N.Y. 98. No compensation being provided for this deprivation, the court had next to decide whether the ordinance was a valid exercise of police power. Bent v. Emery (1899) 173 Mass. 495. The object of the ordinance was to free the neighborhood of a public place from displays which might be displeasing to the sense of beauty or orderliness, and did not fall within the recognized scope of police legislation. The maintenance of a relatively uniform architectural effect in a public place will justify an appropriation of property by the state as for a public use if compensation be made, but the individual is not called upon to sacrifice any private right to the public's artistic sense. Parker v. Commonwealth (1901) 178 Mass. 199. CARRIERS-REASONABLE REGULATIONS. Extra fare having been demanded of the plaintiff because he had no ticket, he refused to pay the excess on the ground that the ticket office was closed so that he was unable to procure a ticket. He was ejected from the defendant's train and in a suit for damages. held, he was not justified in disobeying the regulation and could not recover for the ejection. Monnier v. Ř. R. (1903) 175 N. Y. 281. See Notes, P. 577. CONSTITUTIONAL LAW-OHIO ANTI-Trust Act. Defendant was indicted under the Act of April 19, 1898 (93 O. L. 143 Sec. 4427-1 Rev. St. et seq.), which made criminal any combination or agreement between two or more persons that attempted to fix prices or limit competition among themselves, or between themselves and others. Held, a statute which makes criminal any agreement between two or more persons in any way limiting, or tending to limit, free and unrestricted competition, irrespective of whether such agreement infringes the legal right or safety of any individual, class of individuals, or of the public, is a violation of the Fourteenth Amendment to the Constitution of the United States, in that it deprives the citizen of the right to acquire property by contract. without due process of law. Gage v. State of Ohio (1903) 24 Ohio Law Bulletin 224.

The court could have taken the view here that the statute was meant to apply only to contracts in unreasonable restraint of trade, thus following the dissenting opinion (per White. J.) in the case of U. S. v. Freight Ass'n (1897) 166 U. S. 290, or it might have held with the majority view in the same case, that the statute ineant to apply to all contracts in restraint of trade, whether reasonable or unreasonable, at the same time limiting the term “ restraint of trade,” as is attempted in U. S. v. Joint Traffic Ass'n (1898) 171 U.S. 505. Evidently, however, the court thought that, with the sweeping statute before it, the former view would be a piece of judicial legislation, while the latter would lead to embarrassing an il perhaps disastrous consequences. Unable, under this dilemma, to find any proper interpretation of the statute, which would not involve a sacrifice of rights guaranteed to the individual by the constitution, the court was justified in declaring the act unconstitutional. Niagara Fire Ins. Co. et al. v. Cornell, State Auditor et al. (1901) 110 Fed. 816. CONTRACTS - BOND OF INDEMNITY. A contractor gave a city his bond for $10,000 as security for his paying any judgment obtained against both in a suit that had been instituted for injuries sustained through negligence in the performance of the contract work. By the terms of the original contract the contractor was bound to indemnify the city for all such suits. The plaintiff in the suit obtained a judgment for $22,000. An appeal was taken, but the city settled the suit against the protest of the contractor. In a suit on the bond, held, that the defendant was entitled to go to the jury upon the question whether or not the plaintiff acted in bad faith, and if so whether and to what extent the defendant was injured. City of New York v. Baird (1903) 30 N. Y. L. J. 375. See 2 COLUMBIA LAW ReVIEW 498, criticising the decision in this case before the Appellate Division. CONTRACTS-LIQUIDATED DAMAGES-AMOUNT AGREED UPON EXCESSIVE. Defendants were sued as su eties on a bond for the performance of a contract providing for the erection of a building, with a stipulation for damages to the amount of $25 a day for delay in completion. The Court found the actual damage to be about one-fifteenth of that sum. Held, the stipulation could not be upheld. Lee et al. v. Carroll Normal School Co. (Neb. 1901) 96 N. W. 05.

This result would be reached in any jurisdiction. But the rule laid down by the Court and by which the case is tested is much more strict than that usually applied. The Court says that no greater amount can be recovered as liquidated damages than the injured party “can show he has suffered within legal rules.” The general rule is that as long as the stipulation is not unreasonable it will be enforced. (Ward v. Hudson R. B. Co. (1891) 125 N. Y. 230; Poppers v. Meagher (1893) 148 Ill. 192. If the damages are extremely hard to estimate, the latitude allowed in stipulating damages is widened. Robinson v. Centenary Fund, etc. (N. J. 1903) 54 Ati. 416; Wolf v. Des Moines, etc., R. ČO. (1884) 64 Ìowa 380; Jaqua v. Headington (1887) 114 Ind. 309. Contra, it would seem, to these cases is Gillilan v. Rollins (1894) 41 Neb. 540, cited as authority by the principal case. CORPORATIONS-APPOINTMENT OF Receiver-Directors' Right to REsIGx. A stockholder brought an action against the corporation to have a receiver appointed under $ 1810, subd. 3 New York Code, providing for the appointment of a receiver to preserve the assets of a corproration having no officer empowered to hold the same. All the directors had resigned, in order that this action might be instituted, as the corporation was in difficulties. Held, this was not the purpose of the statute, and the resignations were not effective to bring the case within it. (Zeltner v. Zeltner Brewing Co.) (1903) 174 N. Y. 247.

When the Court decides that the statute was not intended to provide for such a situation (see contra, Smith v. Danzig (1883) 64 How. Pr. 320 at p. 326 et seq.) that would seem to be sufficient to dispose of the case. But the court strengthens its position by showing that while a director has the right to resign, and that his resignation is effective without acceptance, Manhattan Co. v. Kaldenberg (1900) 165 N. Y. 1, at p. 10, his resignation is ineffective even though accepted, where the “ immediate consequence would be to leave the interests of the company without proper care and protection," i Morawetz on Corporations, $563, and from

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