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sion continuously for the statutory period, it would appear that on principle no more need be required.

ONE-MAN CORPORATION.

The case of Broderip v. Salomon (1895, 2 Ch. 323), has attracted considerable attention in England, and some adverse criticism. The facts were as follows. One Salomon, a leather dealer, appreciating the advantages of limited over unlimited liability, organized a corporation composed of himself and family, sold his business to it at an exorbitant price, and took in payment bonds secured by a floating charge on all the corporation assets, present as well as after acquired. Each of the six straw members took one share of stock; the remainder went to Salomon. In this way he virtually reserved his property, and the control and profits of the business, while shifting the liability for future debts to a pauper corporation. Perhaps this might be done if the public was fairly notified of the charge on the capital stock. But there is no registration of mortgages in England to give such a notice. As a consequence, the unsecured creditors would have found themselves out in the cold when it came to liquidation had not the court held Salomon liable to indemnify the company for the debts incurred. Several theories are suggested to support this liability, the one most prominently advanced being that the company was a trustee for the promoter vendor, and as trustee entitled to be reimbursed for liabilities incurred on his behalf. That would seem to be a question of fact, however, as it would be were Salomon held as principal. If the liability rests on fraud, it is difficult to see why Salomon alone was taken and his family left. The real grievance appears to be the lack of any registration of such mortgages, as Mr. Edward Manson, in 11 Law Quart. Rev., 186, 352, points out.

Supposing, however, there were such a registration, what is the policy of general corporation acts? Do they permit one man virtually to limit his liability, if due notification is given to creditors? (11 Law Quart. Rev. 185.) That appears to be a question of economic policy. Under ordinary circumstances justice demands that every debtor, whether a corporation or not, pay all the debts he incurs. Limited liability is an exception, a privilege justified only so far as it gives a proper stimulus to industrial enterprise. It is doubtful if individual enterprise needs such a stimulus.

NEW YORK CODE REVISION. The troublesome experience of New York with the existing code of civil procedure should have been sufficient warning against ill considered methods of change; but the present course of revision in that State is more likely, one would think, to lead to further confusion, than to any reform of the inconsistencies and ambiguities that now characterize the code. After long agitation the State Bar Association secured the passage of an act which empowered the Governor to appoint a commission of three to examine codes of procedure and practice acts of other States and countries, and prepare a revised New York Code. So far, all well and good! The Governor at this stage appointed the three Commissioners of Statutory Revision to constitute the commission for revising the code. These commissioners competent men in their department—are not shown to have any peculiar

fitness for this additional task. The advantages of codification are debatable; but once the policy is adopted, no one can question that the preparation of a code should be intrusted, as a prerequisite for its satisfactory accomplishment, to those who have a thorough familiarity with the principles and theory of the particular branch of the common law to be codified, and a specialist's knowledge of its details. Incidentally, but not so imperatively, an acquaintance with the defects and merits. of existing codes is desirable. In the present case, to throw the burden of drafting a revised code of procedure on the shoulders of the commissioners - confessedly not specialists in the law of civil procedure, and already behindhand in their work of revising the statutes is probably to repeat the history of 1877, when a similar commission of statutory revision was required to revise the procedure code. The result was that the revision of the statutes was never completed; while the procedure code is so defective and ill drawn that, rather than practise longer under it, the bar of the State now welcome the uncertainties of a new revision. It is only fair to add that the report, which the commissioners must submit December next, of the results of their examination of other codes and rules of procedure may reveal unexpected and unhoped for qualifications for the task assigned them.

THE RULE IN DEARLE V. HALL.- An assignee of a cestui's interest in a trust fund, will, if the trustee have no notice of the assigment, be postponed to a subsequent assignee who gives notice. This, it will be remembered, is, in a word, the doctrine known to English lawyers as the rule in Dearle v. Hall (3 Russ. 1). The confusion which it has worked and is continuing to work in the English law of trusts is well pointed out by Mr. E. C. C. Firth in an article in the October number of the Law Quarterly Review. That the rule is devoid of principle in all cases where the second assignee makes no inquiries of the trustee, and so is not mislead by the first assignee's neglect, has often been said and seems clear enough. Whether it is consonant to principle where the second assignee does make inquiries, and takes his assignment in reliance on the trustee's ignorance of the prior assignment, is a question on which there is likely to be a difference of opinion. Mr. Firth denies the right of the second assignee even in this case, on the ground that the first owes him no duty and so is not guilty of negligence in omitting to give notice. Accordingly there can be no estoppel by negligence. It would seem, however, that a duty to give notice might very well be contended for, where a probable consequence of taking the assignment without notice is that some one will be defrauded.

The question is, of course, no longer an open one in England, where, by a series of decisions, the rule has been "improved" until now it has nothing to do with the merits of the successive assignees. Foster v. Cockerell (3 Cl. & F. 456) decided that it was immaterial that the second assignee made no inquiries of the trustee; Low v. Bouverie (1891, 3 Ch. 82) that the trustees were not bound to answer inquiries if they were made; Lloyd v. Banks (3 Ch. 488) that the first assignee should be preferred although he neglected to give notice, if the trustees happened by accident to hear of the assignment. Thus, in all cases where the second assignee gives notice, it has come to be essential for the trustee

to have a bit of information which he is not bound to impart to anybody which the first assignee is not bound to give him, and which the second is not bound to trouble himself about.

It is certainly not to be regretted that a rule so purely artificial and technical has, in many American jurisdictions, failed to gain a foothold. See the cases collected in Ames, Cases on Trusts, 2d ed., 326-328; and see also 7 HARVARD LAW REVIEW. 305.

SHALL A NEGLIGENT PARENT RECOVER FOR A CHILD'S DEATH? Though the authorities are still in conflict, it seems clear on principle that, where an infant sues for injuries caused by the defendant's negligence, the contributory negligence of his custodian should not be imputed to him so as to defeat his action. In jurisdictions where this doctrine is accepted a more difficult question arises. When a child is killed through the combined negligence of his parent and the defendant, and the parent, as administrator, brings action for the death of the child, being himself the sole beneficiary in case of recovery, is his contributory negligence a good defence? The courts which have been called upon to answer this question are pretty evenly divided in their answers. In the recent case of Bamberger v. Citizens' St. R. Co.(31 S.W.Rep.163) the Tennessee court discusses the subject thoroughly, and comes to the conclusion that in such a case the parent's contributory negligence is a good defence to the action. Wymore v. Mahaska County (78 Iowa, 396) presents the opposite view. (See Tiffany on Death by Wrongful Act, §§ 69-71, for a full discussion of the subject.)

On the one hand it is urged that the action is purely in the right of the child, his estate in fact is suing, and it should consequently recover whenever the child himself could have recovered had his injuries not proved fatal. At first sight this seems the strictly logical view. On the other hand, it must be remembered that the right of the administrator to bring this action is not a common law right, but is purely statutory. The statutes, of which every State has one, are copied more or less closely from Lord Campbell's Act, and ordinarily provide, in substance, that where the deceased could have recovered if he had lived, his administrator can recover for the benefit of the next of kin; and the courts which support the view taken in the Tennessee case add the qualification that, as the next of kin is the real party in interest, he must have been free from fault himself in order to reap the benefit provided for by the statute. This works justice, but is it reading too much into the statute? It hardly seems so. It is by no means uncommon in statutory actions for damages for courts to hold that contributory negligence is a good defence, though not mentioned in the statute. (See Quimby v. Woodbury, 63 N. H. 370.) And in the case under discussion it would apparently do no violence to the intention of the legislature to interpret the statute as not merely providing for the survival of the child's right of action, but as giving the next of kin a new right of a special nature, the enforcement of which is conditioned on freedom from contributory negligence. This interpretation supports Mr. Tiffany's conclusion that the right of the deceased to maintain an action is not the sole test of the right of the beneficiaries to recover damages for his death, but merely one of the conditions of their right.

BANKS AND BANKING

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RECENT CASES.

NEGLIGENCE IN SUPERVISION OF BANK OFFICER. Where a special deposit for gratuitous safe-keeping was made with a bank and stolen by its cashier, held, that the bank was not discharged from liability if negligent in retaining the cashier when it ought to have known that he had become unworthy of trust. Merchants' National Bank v. Carhart, 22 S. E. Rep. 628 (Ga. ).

If a bank official undertakes to act in a manner which is ultra vires of the corporation, his act will not bind the corporation or furnish a cause of action against it. Atlantic Bank v. Merchants' Bank, 10 Gray, 532. A bank must use ordinary care, however, in the gratuitous keeping of a special deposit, and the fact that due care has been exercised in procuring a servant in the first place is no reason why diligence should cease in regard to him. Gilman v. Railroad Corporation, 10 Allen, 233. The decision seems sound, therefore, and is supported by such meagre authority as there is on the subject. Scott v. National Bank, 72 Pa. St. 471.

BILLS AND NOTES - BONA FIDE PURCHASER NOTICE. The payee of a note fraudulently procured from the defendant, indorsed it to the plaintiff for valuable consideration, in violation of an agreement not to convey. The plaintiff had notice of the agreement, but not of the fraud. Held, that the plaintiff could recover on the note. Thompson v. Love, 32 S. W. Rep. 65 ( Ark.).

It is difficult to say on what ground the court put this decision, but the right result seems to have been reached. If the agreement were oral and simultaneous with the giving of the note, it would probably be inadmissible as varying the effect of the writing; this would dispose of the matter at once. But if the agreement were in writing, or made subsequently for good consideration, the case would be more doubtful. Even such an agreement, however, would not affect the validity of the note, and a breach of it would result only in the personal liability of the promisor. It seems equally clear that no notice of the fraudulent procurement of the note could be imputed to the indorsee because of his knowledge of the agreement.

BILLS AND NOTES - STATUTE OF LIMITATIONS. Where, for thirteen years, no demand was made upon a promissory note payable thirty days after demand, hela, since it did not appear that the parties intended to limit the time within which presentment should be made, the holder of the note was not barred from suit against the maker. Cooke v. Pomeroy, 32 Atl. Rep. 935 (Conn.).

Action does not accrue upon a note payable a certain number of days after demand until demand is actually made. Until such time, then, the Statute of Limitations cannot begin to run against it. There are some authorities which hold that the demand must be made within a reasonable time, which is ordinarily fixed at the period allowed by statute for suing on a note payable at the time of its date. Palmer v. Palmer, 36 Mich. 487. The court here errs in attempting to distinguish those cases on the ground of extrinsic evidence, for where they do not refer exclusively to the discharge of an indorser, they are clearly wrong. Wenman v. Mohawk Insurance Co., 13 Wend. 267.

CARRIERS BILL OF LADING -DEFICIENCY IN THE CARGO. - Action by the assignee of the consignor of grain by defendant's vessel on the following bill of lading. "All the deficiency in cargo to be paid for by the carrier. . . . and deducted from the freight." On the vessel's arrival at the port of destination it was ascertained that some 2,000 bushels less than supposed were on board, the deficiency being due to a mistake in the weighing at the port of departure. Held, that the carrier was liable for the shortage in the cargo though the grain had never actually been loaded cn board the vessel. Sawyer v. Cleveland Iron Min. Co., 69 Fed. Rep. 211.

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Where the case arises between the carrier and a consignee, the bill of lading and facts being otherwise similar to those set out above, the consignee is allowed to recover. "Otherwise, says the court in Merrick v. Certain Wheat, 3 Fed. Rep. 340, "there would be no necessity for inserting the stipulation at all, because the consignee, without any express stipulation, has the right to deduct from the freight a deficiency in the cargo actually received by the carrier and arising from his fault, . . . and it is not reasonable to suppose the parties meant to insert a useless condition in the contract. The court in the present case thought the same rule applicable to a consignor, as no evidence showed the consignor was privy to the mistake, he being entirely unrepresented at the weighing in question except by the carrier, and so in the same relative position in this respect as a consignee would bear to the carrier. If the consignor could have recovered, then his assignee, the plaintiff can recover.

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CONSTITUTIONAL LAW-EXEMPTION OF VETERANS FROM CIVIL SERVICE RULES. The Constitution of New York, Art. 5, § 9, provides that appointments in the civil service shall be made according to fitness, which shall be determined so far as is practicable by competitive examination; but veterans shall be entitled to preference without regard to their standing on any list from which such appointment may be made. Held, a statute providing that when a veteran is an applicant competitive examinations shall not be deemed practicable if the salary of the position does not exceed $4 per day, but that the only examination shall be one to test the ability of the applicant to fill the position, is unconstitutional and void. In re Keymer, 35 N. Y. Supp. 161.

The provisions of the New York statutes in regard to veterans in the civil service were gradually relaxed from 1883 to 1894, when the legislature declared that the civil service laws should not apply at all in cases where the compensation did not exceed $4 per day. This statute has been abrogated by the new Constitution (In re Sweeley, 33 N. Y. Supp. 369), the provisions of which in regard to the preference of veterans are very similar to those of the law which was passed by the Massachusetts legislature last June over the Governor's veto. Acts of Mass., 195, chap 501. The court says that the power to declare examinations impracticable in one case implies the power to declare them impracticable in every case, and thus to annul the whole constitutional provision. The judgment of the lower court awarding a mandamus to the Commissioners to give the orator a non-competitive examination is accordingly reversed.

CONSTITUTIONAL LAW-FEDERAL COURTS-FOLLOWING STATE DECISIONSCHANGE OF RULING. A federal court made a decision respecting the rights of parties before it in certain property, based upon a series of decisions of the highest court of a State, as to the interpretation of a statute of such State, and the decision was affirmed upon appeal. In a later case respecting the identical property, the State court reversed its former decisions. Held, this fact does not make it the duty of the federal court to reverse its decision as to the rights of the parties in the same property, in proceedings subsequently arising. National Foundry & Pipe Works v. Oconto Water Co., 68 Fed. Rep. 1006.

The court says (though the decision of the case does not require it) that "it will doubtless be proper for this court, in any case hereafter arising, where rights have accrued subsequent to the last decision of the Supreme Court of the State upon the question, to give due consideration to the later rulings of that tribunal." This would seem to be sound, though no cases in which this additional step has been taken, have been called to our attention. The decision is in accordance with authority. Burgess v. Seligman, 107 U. S. 20. A note at page 34 collects the principal cases bearing upon the subject.

CONSTITUTIONAL LAW-PUBLIC USE-IRRIGATION. An act of California allowed fifty landholders, whose lands were susceptible of a common system of irrigation, to submit a plan of irrigation for the whole common district, which plan, if accepted by two thirds of the landholders of the district, was to be binding. To meet expenses, all the lands of that district could be assessed, and for failure of payment, sold. The landowners could be heard only on the question of valuation. The act was held unconstitutional. Bradley v. Fallbrook Irrigation District, 68 Fed. Rep. 948.

The court objects to this as a taking of property for other than a public use, on the ground that the landowners of the district were the only persons benefited. But it is difficult to distinguish this from such cases as Hagar v. Reclamation District, 111 U. S. 701, where a similar act to drain swamp lands was upheld. It is not merely a question of the public health; the legislature may provide also for other phases of the public benefit, and it would seem that the turning of large tracts from deserts into gardens was a suitable field for such legislative consideration. This view was taken in a recent case in Nebraska, which held that the taking of land for purposes of irrigation lay within the discretion of the legislature. Paxton Irrigating Co. v. Farmers' Irrigation Co., 64 N. W. Rep. 343 (Neb.).

From another aspect, too, it is proper for the legislature to interpose a controlling hand. The irrigation necessary to improve these lands could only be accomplished by the co-operation of all the landowners, and it has been laid down that the legislature has a power "to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which by reason of the peculiar natural condition of the whole tract cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful at their joint expense. Wurts v. Hoagland, 114 U. S. 613. The court, in fact, seems to admit this view, and goes off to discuss the case on another ground.

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