evidence of this swing from the contractual back to the relational than in that of public service. A legion of cases reported in the century before Elizabeth show how clearly the courts then based their recovery on the character of the profession of the public servant rather than on his agreement. But in the centuries that followed, the law of public callings almost disappeared except that of innkeepers and carriers, which continued within fixed rules, and when in the nineteenth century its great modern development began, the earlier principles were largely forgotten and the law was often phrased solely in terms of what the parties had agreed to do. At the present time the courts are unwilling to confine this branch of the law within the bounds of contract, so that while decisions still often sound in its phrases, the results themselves are inconsistent with that explanation."

8

No matter what language the courts may use, it seems clear on a survey of the law, that the great body of rules governing public callings are not based upon contract. Obligations are imposed upon those engaged in such pursuits by numerous statutes, as for example the laws passed by Congress regulating interstate commerce," - obligations which must be fulfilled regardless of the will of the parties in entering the relation. Although in construing one of these statutes, the Supreme Court was at first able to say that its provisions were "implied" terms of the contract, when confronted with a case in which no contract could be worked out, they rested their decision squarely on the ground of a relational duty irrespective of agreement. At common law, without the aid of statutes, the courts enforce liability in the very face of attempted contracts such as ones limiting liability of a carrier for negligence of its servants.1 10 Private persons could make such contracts, but the status of a public servant fixes his duties and imposes this disability. It is the veriest truism that a public servant is bound to serve all who apply, at reasonable rates, providing them with adequate facilities, and to do all this without discrimination. Even if agreements are made in accordance

Anon., Keilw. 50, pl. 4. "Note that it was agreed by all the court that where a smith declines to shoe my horse, or an innkeeper refuses to give me entertainment at his inn, I shall have an action on the case, notwithstanding no act is done; for it does not depend upon agreement." Numerous other cases showing the way the early law regarded public callings have been translated in WYMAN, PUBLIC SERVICE CORPORATIONS, ch. 1. Of these see especially Y. B. 22 Edw. IV. 49, pl. 15; Y. B. 19 Hen. VI. 49, pl. 5; Y. B. 39 Hen. VI. 18, pl. 24.

This view was never more concisely expressed than in Pounder v. Northeastern Ry., [1892] 1 Q. B. 385, when Smith, J., asked, "What is the duty of a railway to its passengers?" and answered, "It arises out of the contract.

6 "The carrier's contract is to protect the passenger against all the world." Craher v. Chicago & N. W. Ry., 36 Wis. 657, 673. There is of course no such term in the actual contract between the parties. This is part of the duty which the law imposes on the carrier.

7 E. g., the HEPBURN ACT, June 29, 1906, c. 3591, 34 STAT. 584.

Kansas, etc. Ry. Co. v. Carl, 227 U. S. 639, more particularly at 650; see also Missouri, etc. Ry. v. Harriman, 227 U. S. 657.

Boston, etc. Ry. v. Hooker, 233 U. S. 97. The language in the majority decision on the subject of duties imposed by the statute is excellent. The correctness of the result, however, in applying the general principles to the facts of the particular case was criticised in 27 HARV. L. REV. 737.

10 New York Central R. v. Lockwood, 17 Wall. (U. S.) 357. trary are influenced by the ordinary doctrines as to contracts. cuse, B. & N. Y. R., 71 N. Y. 180.

The cases to the con

See Mynard v. Syra

with these enforced duties and without attempt at contractual evasion, the obligations are thus imposed by law from the relation of patron and public utility and do not arise from the will and intent of the parties. It becomes apparent that contract can exist in this part of the law only so far as it does not conflict with the paramount duty of the public servant to the public."

In view of these principles, the present case sounds the note of midVictorian individualism in its most objectionable form. A traveller surrendered her ticket to the conductor of the first of two railroads over which she was making a through trip and neglected to receive a voucher in return. The ticket, which was offered bona fide and accepted without objection, was not in fact good. Recovery for physical suffering caused by insults from the conductor of the defendant second railroad was refused on the ground that there was no contract on which to base an action. It may be admitted that the defendant's conductor could have ejected the plaintiff upon her inability to produce a voucher if she refused to pay her fare.12 But permitting her to remain and then insulting her is indefensible, for she had the same right to be protected from the insults of the defendant's servants as any other person rightfully on the train.13 To place the victim of a mistake in the position of a trespasser is indeed an unfortunate result, and shows in what a position the law finds itself when it abandons the conception of status and adopts that of contract.

11 Three recent cases show various methods of approach to this problem. In Middleton v. Whitridge, 52 N. Y. L. J. 1621 (N. Y. Ct. of App.), the court held that there was an added duty imposed on a carrier to care for a passenger who became sick on the journey. It was said that "that duty springs from the contract to carry safely" but that "of course the carrier is not bound" without notice. Such a distinction shows that the "contract" the court is talking about is only the duty imposed by the law. The Supreme Court of Arkansas in an analogous case, Weirling v. St. Louis, I. N. & S. R., 171 Ŝ. W. 901, laid no emphasis on the contract of carriage, but the duty of the carrier is put rather on relational grounds. And in Gilkerson v. Atlantic Coast Linc R. Co., 83 S. E. 592 (S. C.) it was held that there was a duty upon a carrier to wake a passenger in order to allow him to alight at his destination when the conductor had agreed to do this.

12 See Delaware, L. & W. Ry. v. Bullock, 60 N. J. L. 24, 36 Atl. 773, "The right of the company was to refuse to carry him under existing conditions."

13 See Delaware, L. & W. R. v. Trautwein, 52 N. J. L. 169, 19 Atl. 178, “The duty of persons engaged in these public employments to safely and securely carry is independent of contract. It is a duty imposed by law from considerations of public policy, and arises from the fact that persons or property are received in the course of the business of such employments.' And see Marshall v. York, N. & B. Ry., 11 C. B. 655; Carroll v. Staten Island R., 58 N. Y. 126. The person injured need not be a "passenger" in order to recover. Bradford v. Boston & Maine R., 160 Mass. 392, 35 N. E. 1131. It is enough to make the carrier liable that the person injured was rightfully there. See Hale v. Grand Trunk Ry., 60 Vt. 605, 15 Atl. 300; Philadelphia & Reading R. v. Derby, 14 How. (U. S.) 468. It is a general rule of railroads that persons need not purchase tickets until after they get on the train, and yet they have all the rights of passengers before fare is collected.

RECENT CASES

AGENCY NATURE AND INCIDENTS OF THE RELATION · SALE BY AGENT TO HIMSELF. The defendant employed the plaintiff as agent to sell land at a certain minimum price, the agent to have as commission everything above that price. The plaintiff tendered the price himself and asked for a conveyance, but the defendant refused. The plaintiff now seeks specific performance. Held, that specific performance will be granted. Hulton v. Sherrard, 150 N. W. 135 (Mich.).

An agent owes the highest duty of loyalty to his principal, and therefore an agent to sell cannot himself become the buyer. McNutt v. Dix, 83 Mich. 328, 47 N. W. 212; Porter v. Woodruff, 36 N. J. Eq. 174; Rockford Watch Co. v. Manifold, 36 Neb. 801, 55 N. W. 236. It has been suggested, however, that where the price is fixed and leaves the agent no discretion he may act for both buyer and seller. See Empire State Ins. Co. v. American Central Ins. Co., 138 N. Y. 446, 449, 34 N. E. 200, 201. Whatever may be the merits of such a doctrine, the principal case seems unimpeachable. By express agreement the agent was to act for himself after the price stipulated for by the principal was reached, and accordingly, he had no interest against his duty. To say that the contract should be voidable because the agent might be tempted to sell to an unwelcome purchaser would be entirely too fanciful an objection. Synott v. Shaughnessy, 2 Ida. 111, 7 Pac. 82.

BANKS AND BANKING - COLLECTIONS - LIABILITY OF COLLECTING BANK IN GARNISHMENT PROCEEDINGS. The defendant deposited in the A bank for collection a draft drawn on the plaintiff payable to the bank. The A bank credited the amount to the defendant's account, which was already overdrawn, and sent the draft to the B bank which collected from the plaintiff. The plaintiff then sued the defendant and garnished the B bank. The A bank intervened and claimed the fund. Held, that the A bank is entitled. Scott v. McIntyre Co., 144 Pac. 1002 (Kan.).

The question whether the deposit of paper in a bank for collection creates the relation of debtor and creditor, or of agent or trustee, is largely one of fact. One view is that primâ facie the bank becomes an agent for collection. Balbach v. Frelinghuysen, 15 Fed. 675. See 18 HARV. L. REV. 300; 28 id. 205. The weight of authority, however, appears to be that, at least under the circumstances of the principal case, the relation is that of debtor and creditor. Metropolitan National Bank v. Loyd, 90 N. Y. 530; Burton v. United States, 196 U. S. 283. Under the latter view the decision is clearly right, for the bank takes the draft as its own and is entitled to the proceeds. On the former hypothesis, the situation is somewhat more complicated. Some courts hold that the collecting bank is a sub-agent, and give the depositor a direct legal right against it. First National Bank of Circleville v. Bank of Monroe, 33 Fed. 408. See San Francisco National Bank v. American National Bank, 5 Cal. App. 408, 90 Pac. 558. On the other hand, it is sometimes said that the depositor has only an equitable right. See Naser v. First National Bank, 116 N. Y. 492, 499, 22 N. E. 1077, 1078. This would seem the correct view, for the depositary bank is in effect the trustee of the claim for the depositor. See 18 HARV. L. REV 300. The Kansas statute, however, allows garnishment of credits in which he principal defendant may be interested up to the extent of his interest. KAN. GEN. STAT., § 5835. This would seem to cover a case where the interest is equitable. But since the depositor must work out his rights through the depositary bank, the garnishing creditor would on any theory be postponed to

the depositary, whose lien in the principal case in fact exceeded the sum collected.

BILLS AND NOTES - CHECKS NEGLIGENCE OF DRAWER: USE OF PROTECTOGRAPH.

NEGLIGENT

A bank check for three dollars, otherwise properly drawn, was negligently stamped with a protectograph, "Not over $500." The payee raised the check to three hundred and sixty dollars and indorsed it to a bona fide purchaser, who now sues the drawer to recover the face value of the check. Held, that he can recover. Second National Bank of Vincennes v. Campbell, Ct. App., Hamilton County, Ohio (not yet reported).

If a check or other negotiable instrument is drawn in such a way as to suggest and facilitate the making of alterations which cannot be detected on inspection, a bona fide purchaser of the altered instrument may recover the full face value. Garrard v. Haddan, 67 Pa. St. 82; Harvey v. Smith, 55 Ill. 224; see Young v. Grote, 4 Bing. 253. Contra, Knoxville National Bank v. Clark, 51 Ia. 264; Colonial Bank of Australasia v. Marshall, [1906] A. C. 559. In the United States the authority to the contrary limits recovery to cases where the relation of banker and customer exists. See Greenfield Savings Bank v. Stowell, 123 Mass. 196, 201; 2 DANIEL, NEGOTIABLE INSTRUMENTS, 6 ed., § 1405. But a protectograph stamp is not an essential of a properly drawn check. It is in the nature of the marginal figures, which are not an integral part of the instrument. Smith v. Smith, 1 R. I. 398; Garrard v. Lewis, 10 Q. B. D. 30. See I DANIEL, NEGOTIABLE INSTRUMENTS, 6 ed., § 86. The case is thus not to be judged as if the bank was guilty of negligence in omitting to stamp the draft, "Not over $5." If the drawer had left the perfectly drawn instrument unstamped, he clearly would not have been liable. Dana v. Underwood, 19 Pick. (Mass.) 99; Smith v. Chester, 1 T. R. 654. And yet the forger could then have forged the alteration with equal ease and added a protectograph stamp to confirm his forgery. The mere presence of the protectograph, furthermore, cannot be said to have facilitated the alterations, for it was still necessary for the forger himself to erase parts of the existing instrument. By drawing the check properly in all its essential elements, the drawer satisfied his duty to the purchaser; the mere fact that in taking an unrequired precaution to safeguard his own interests, he acted without due care in attaching the protectograph stamp, should not make him liable to a purchaser who placed an uninvited reliance upon the same safeguard. Accordingly the decision in the principal case must be deemed wrong.

BILLS AND NOTES - DEFENSES - RELEASE OF SECURITY BY PAYEE WITHOUT ASSENT OF SURETY CO-MAKER-NEGOTIABLE INSTRUMENTS LAW. The defendants signed a note as surety co-makers. The principal co-maker gave the plaintiff payee a deed of trust on land as security. The plaintiff, with notice of the suretyship relationship and without the assent of the defendants, released this security. Held, that the plaintiff cannot recover. Long v. Shafer, 171 S. W. 690 (Mo. App.).

The court reaches this result on the ground that a payee cannot be a holder in due course, and that under Section 58 of the Negotiable Instruments Law the instrument is therefore "subject to the same defenses as if it were nonnegotiable." At common law, of course, any binding extension of time or release of security by a holder with notice of the suretyship would give a defense to the surety co-maker. German Savings Ass'n v. Helmrick, 57 Mo. 100; Cummings v. Little, 45 Me. 183; see 59 U. OF PA. L. REV. 532; I BRANDT, SURETYSHIP, 3 ed., § 38. But under the Negotiable Instruments Law it has been held that Section 192, making an accommodation maker primarily liable, and Sections 119 and 120, specifying extension of time as a method of releasing a party secondarily liable and not mentioning it for one primarily liable,

have altered the law. Union Trust Co. v. McGinty, 212 Mass. 205, 98 N. E. 679; Lane v. Hyder, 163 Mo. App. 688, 147 S. W. 514; Cowan v. Ramsey, 140 Pac. 501 (Ariz.). See 28 HARV. L. REV. 102. Apparently only one other court has, like the principal case, relied on Section 58 to release the surety. Fullerton Lumber Co. v. Snouffer, 139 Ia. 176, 117 N. W. 50. To relieve the surety, however, on the ground that a payee cannot be a holder in due course is unfortunate. The weight of authority at common law and under the English and American statutes is to the contrary. Watson v. Russell, 3 B. & S. 34; Lucas v. Owens, 113 Ind. 521, 16 N. E. 196; Lloyd's Bank, Ltd. v. Cooke, [1907] 1 K. B. 794, 806; Boston Steel & Iron Co. v. Steuer, 183 Mass. 140, 66 N. E. 646. See 15 HARV. L. REV. 579; 16 id. 596. A better method of reaching the desired result would be to hold frankly that Sections 119 and 120 do not apply. Cf. Farmer's Bank of Wickliffe v. Wickliffe, 134 Ky. 627, 121 S. W. 498. See BRANNAN, NEGOTIABLE INSTRUMENTS LAW, 2 ed., 117. Such a course would be particularly justifiable in this case, as a release of security, unlike an extension of time, is not specifically mentioned in Section 120. Probably the best solution, however, would be to eliminate two sections which so inadequately attempt to codify the law of suretyship and leave the situation as it was at common law. See 14 HARV. L. REV. 241, 254; 16 id. 255, 259; 59 U. OF PA. L. REV. 532, 542.

BONDS - NEGLIGENT REISSUE BY OBLIGOR UNDER FORGED INDORSEMENT: RIGHTS OF BONA FIDE PURCHASER. Executors owned bonds transferable only by indorsement and surrender. A thief stole the bonds, and by forging the indorsement, secured a reissue from the obligor in the name of one of the executors. The thief then forged the signature of this executor, and sold the bonds to a bona fide purchaser, who secured new bonds from the obligor in his own name. The obligor was found to be negligent in not discovering the forgery when the bonds were presented for the first reissue, but not in reissuing bonds to the purchaser. Held, that the executors are entitled to the bonds; but that the obligor, because of his negligence, must reimburse the purchaser. Chester County, etc. Co. v. Securities Co., 150 N. Y. Supp. 1010 (App. Div.).

The transfer of bonds or notes under a forged indorsement of course passes no title even to a bonâ fide purchaser. Dana v. Underwood, 19 Pick. (Mass.) 99; Smith v. Chester, 1 T. R. 654. Hence the executors were clearly entitled to recover the bonds in the principal case, as an altered form of the res. Graves v. American Exchange Bank, 17 N. Y. 205; Hatton v. Holmes, 97 Cal. 208, 31 Pac. 1131. Furthermore, the obligor may ordinarily recover a payment made to a holder under a forged indorsement. Canal Bank v. Bank of Albany, I Hill (N. Y.) 287; United States v. National Park Bank, 6 Fed. 852. See AMES, "Doctrine of Price v. Neal," 4 HARV. L. REV. 297, 307. Cf. London & River Plate Bank v. Bank of Liverpool, [1896] 1 Q. B. 7. A fortiori, the obligor in the principal case could not be held liable to the purchaser, in spite of the legal title given to the purchaser by the reissue, unless in some way estopped to deny the forgery of the indorsement. It is true that negligence in signing commercial paper under the belief that it is an instrument of a different nature, estops the signer from denying liability on the instrument. Douglass v. Matting, 29 Ia. 498; Chapman v. Rose, 56 N. Y. 137; Winchell v. Crider, 29 Oh. St. 480. By analogy, the negligent reissue of an instrument under a forged indorsement should estop the issuer from denying the title of a subsequent bonâ fide purchaser of the new instrument. But in the principal case, the payee's indorsement on the new instrument was also forged, and since there was no negligence in the second reissue, the purchaser cannot recover unless the negligence of the obligor in the first reissue estops him from asserting the subsequent forged indorsement. To utter commercial paper in an improper form