admits that the question is one of fact, but declares that a written protest does not override the evidence of acceptance afforded by the cashing of the draft. It seems doubtful, therefore, whether any evidence would have satisfied the court that the inference of acceptance had been rebutted. If that be so, the principal case shows a strong tendency to overthrow the rule that the question is the one of fact referred to above. For a discussion of the principles involved, see 17 HARV. L. Rev. 459, 469–473.

ADMIRALTY-TORTS-DAMAGES RECOVERABLE FROM ONE OF TWO VESSELS AT FAULT. - In a collision at sea a vessel in tow was injured by the fault of the tug and a third vessel. Held, that the vessel in tow may recover her whole damage from the third vessel. The Devonshire, 27 T. L. R. 490 (P. D.).

This is clearly irreconcilable on principle with the English rule that an innocent cargo can recover only one half of its damage from one of two vessels injuring it. The Drumlanrig, [1910] P. 249. If the court allows contribution on the facts of the principal case, the result will be that where a vessel is injured, the English rule as to joint tortfeasors will be the same as the American. See 24 HARV. L. REV. 150. But it seems hardly likely that the English court will allow contribution in a separate suit, since it has refused to allow it where both tortfeasors are in court. The Avon and Thomas Joliffe, [1891] P. 7.

ADVERSE POSSESSION SUBJECT MATTER AND EXTENT — APPLICATION OF CONSTRUCTIVE POSSESSION DOCTRINE TO LARGE TRACTS OF LAND. - The defendant having been for more than 25 years in actual possession of 15 to 20 acres of land under color of title to a 320-acre tract, the plaintiff brought an action of ejectment to recover the entire tract. Held, that the defendant has acquired title to the 320 acres. Marietta Fertilizer Co. v. Blair, 56 So. 131 (Ala.).

By the American doctrine, the occupation of part of a tract of land under color of title to the whole is constructive adverse possession of the entire tract. Ellicott v. Pearl, 10 Pet. (U. S.) 412. The reason for this rule is that it is impracticable for the occupant to clear and cultivate an entire farm at one time. See Jackson d. Gilliland v. Woodruff, 1 Cow. (N. Y.) 276, 287. This reasoning is obviously inapplicable to a case where actual possession of a few acres is made the basis for a claim to a vast expanse of country. Chandler v. Spear, 22 Vt. 388. Accordingly, several courts have held that the amount of land which can be thus obtained must be limited to a tract which can be used in one body according to the usual manner of business of the country. Thompson v. Burhans, 61 N. Y. 52. See Murphy v. Doyle, 37 Minn. 113, 116, 33 N. W. 220, 222. The difficulty of applying such a rule is perhaps increased, as the principal case points out, by the large-scale methods of modern business, but its necessity is clear. Archibald v. New York Central, etc. R. Co., 1 N. Y. App. Div. 251, 37 N. Y. Supp. 336. The weight of authority, however, is perhaps in accord with the principal case. Doe d. Lenoir v. South, 10 Ired. (N. C.) 237; Hicks v. Coleman, 25 Cal. 122. The question is regulated by statute in several states. N. Y. CODE CIV. PROC., § 370; CAL. CODE CIV. PROC., 1906, § 323.

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AGENCY AGENT'S LIABILITY TO THIRD PARTIES THEORY OF UNDISCLOSED PRINCIPAL APPLIED TO TORTS. The defendant, concealing the fact that he was merely an agent, employed the plaintiff to work on a building. The plaintiff did not know till after the injury complained of that the defendant was an agent. There was no evidence that the defendant was personally negligent. Held, that the defendant is liable as if he were the principal. Yarslowitz v. Bienenstock, 130 N. Y. Supp. 931 (Sup. Ct.).

The agent of a disclosed principal is not liable for injuries to subagents unless he himself has been negligent. Stone v. Cartwright, 6 T. R. 411; Brown

v. Lent, 20 Vt. 529. But when the employing agent conceals his agency, he is liable as if he were principal. Malone v. Morton, 84 Mo. 436; Morris & Co. v. Malone, 200 Ill. 132, 65 N. E. 704. The principal case apparently suggests that this distinction is explained by the doctrine of undisclosed principal, that an agent who contracts as principal is liable on the contract. Simon v. Motivos, 3 Burr. 1921; Pierce v. Johnson, 34 Conn. 274. The same rule holds where one contracts as agent but fails to name his principal. Cobb v. Knapp, 71 N. Y. 348; Ye Seng Co. v. Corbitt, 9 Fed. 423. The reason usually given is that the agent is a party to the contract; and in accord with this reason the agent is allowed to sue. Joseph v. Knox, 3 Camp. 320; Short v. Spackman, 2 B. & Ad. 962. But the principal may also sue on the contract. Cothay v. Fennell, 10 B. & C. 671; Huntington v. Knox, 7 Cush. (Mass.) 371. As there is a contract with but one person, and on true principles of agency that contract is made with the principal, the reasoning of the cases holding the agent on the contract seems unsound. Certainly it is inapplicable to the principal case, where the liability is not contractual. The decision should be placed on the short ground that the defendant, having induced the plaintiff to enter the employment by holding himself out as principal, is estopped to show that he is not the principal.

AGENCY - SCOPE OF AGENT'S AUTHORITY BONA FIDE PURCHASER FROM PURCHASER WITH NOTICE OF AGENT'S FRAUD. An agent, in violation of his instructions, delivered a deed which had been executed with the name of the grantee blank. The deed was recorded with the name of a party for grantee, who was chargeable with notice of the agent's wrong. This grantee conveyed to a purchaser for value and without notice. The principal joined all parties in a suit to quiet title. Held, that he is entitled to a decree provided he makes good the bonâ fide purchaser's loss. Guthrie v. Field, 116 Pac. 217 (Kan.).

In Kansas, parol authority to complete a deed executed with the grantee's name blank is sufficient. Exchange National Bank v. Fleming, 63 Kan. 139, 65 Pac. 213. This is so even where a third party with the agent's authority writes in the name. Cf. Commercial Bank v. Norton, 1 Hill (N. Y.) 501. The agent's incidental power to convey does not depend upon the third party's belief in its existence. Edmunds v. Bushell, L. R. 1 Q. B. 97; Watteau v. Fenwick, [1893] 1 Q. B. 346. The third party's knowledge of the agent's wrong would make the transaction voidable as to him but would not prevent the passage of title. The bona fide purchaser's title, therefore, should be unassailable. Arnett's Committee v. Owens, 23 Ky. L. Rep. 1409, 65 S. W. 151; Somes v. Brewer, 2 Pick. (Mass.) 183. The court relies upon the doctrine that, of two innocent parties, the loss must fall upon the one whose misplaced confidence enabled the wrongdoer to cause it. As applied by the courts in cases like this, it does not differ from estoppel. Friswold v. Haven, 25 N. Y. 595; State v. Matthews, 44 Kan. 596, 25 Pac. 36. From the nature of a deed it is difficult to find a representation to the purchaser from the grantee, upon which to base an estoppel. Cf. Grant v. Norway, 10 C. B. 665. And if there is an estoppel, the innocent purchaser should obtain a perfect title. Horn v. Cole, 51 N. H. 287; Grissler v. Powers, 81 N. Y. 57. Contra, Campbell v. Nichols, 33 N. J. L. 81. In unusual cases, relief upon the terms of the decree in the principal case might be granted. Cf. New York & New Haven R. Co. v. Schuyler, 34 N. Y. 30. If the third party completed the deed, without authority from the agent, title would not pass. But the court does not accept this theory of the facts.

BANKRUPTCY PROPERTY PASSING TO TRUSTEE-CORPORATE NAME.The trustee in bankruptcy of a corporation sold its good will and trade name. The corporation received its discharge. Held, that the purchaser from the

trustee may, and the corporation may not, use the corporate name. Myers Co. V. Tuttle, 188 Fed. 532 (Circ. Ct., S. D. N. Y.).

The good will of an individual bankrupt can be sold by the trustee, but not so as to prevent his subsequently doing business in his own name. Cruttwell v. Lye, 17 Ves. 335; Bellows v. Bellows, 24 N. Y. Misc. 482, 53 N. Y. Supp. 853; Helmbold v. Helmbold Mfg. Co., 53 How. Pr. (N. Y.) 453. This rule exists because a man's name is considered so peculiarly his own and so necessary to him that it should be left to him after discharge in order to give him another chance in life. See Helmbold v. Helmbold Mfg. Co., supra, 459. Obviously this reasoning does not apply to a corporation, which gets its name from the state, and is given more chance in life than it deserves by being allowed a discharge in bankruptcy at all. There is hence no justification for applying the rule to corporations, and the corporate name should be sold just as all other assets. There seems to be no reason why a corporate name cannot be sold. Lothrop Pub. Co. v. Lothrop, etc. Co., 191 Mass. 353, 77 N. E. 841. Cf. Lamb Knit Goods Co. v. Lamb, etc. Co., 120 Mich. 159, 78 N. W. 1072. See I MACHEN, CORPORATIONS, § 468. As far as the wording of the statute is concerned, it could pass to the trustee as "property which . . . he [the bankrupt] could by any means have transferred." BANKRUPTCY ACT OF 1898, § 70 a (5). Or perhaps the term “trade-marks ” would include it. BANKRUPTCY ACT OF 1898, 870a (2). See PAUL, TRADE-MARKS, § 160. It may be objected that this decision deprives corporations of an incident of the discharge allowed them. It is submitted that it merely refuses them a privilege given for special reasons to an individual.

BILLS AND NOTES - DOCTRINE OF PRICE v. NEAL - OVERDRAFT PAID BY DRAWEE BANK. - The plaintiff bank, under the mistaken belief that the drawer had sufficient funds deposited, paid a check to the payee, the defendant. Held, that it cannot recover the amount so paid. Spokane & Eastern Trust Co. v. Huff, 115 Pac. 80 (Wash.).

The case represents the great weight of authority. Hull v. Bank of South Carolina, Dud. (S. C.) 259; First National Bank of Denver v. Devenish, 15 Colo. 229, 25 Pac. 177. The decision is often based on the cases denying relief in the case of forged bills. See Hull v. Bank of South Carolina, supra, 261. But there the holder, having no claim at all against the supposed drawer, loses if he must refund. In this case, the note being valid, a claim does exist against the drawer, and the parties may be put in statu quo whether in giving up the note the holder gave value or not. Some authority may be found opposed to the principal case. President, etc. of Appleton Bank v. McGilvray, 4 Gray (Mass.) 518. See Whiting v. City Bank, 77 N. Y. 363, 366. These cases intimate that a change of position such as a release of indorsers would be a good defense. Though the rule of the principal case is too universal to be changed, it is well to recognize that it is not due to an equality of equities between the parties, but merely to hesitancy in overturning transactions with commercial paper. See National Bank of New Jersey v. Berral, 70 N. J. L. 757, 760, 58 Atl. 189, 190. It may well be doubted whether this is here a sufficient reason to make an exception to the general rule. Cf. Merchant's National Bank v. National Bank of the Commonwealth, 139 Mass. 513, 2 N. E. 89.

CARRIERS BAGGAGE · LIMITATION OF LIABILITY. The plaintiff's ticket stated: "The company assumes no risk for baggage except for wearing apparel, and limits its responsibility to $100." The plaintiff's baggage was lost while in the custody of the defendant's trainman, as he was assisting the plaintiff in changing cars. Held, that the limitation applies only to baggage regularly checked for the journey. Hasbrouck v. New York Central & Hudson River R. Co., 202 N. Y. 363, 95 N. E. 808.

Although the terms of the contract limiting liability include all baggage, the decision that the limitation does not apply to hand baggage retained, except temporarily, by the passenger is undoubtedly correct. Holmes v. North German Lloyd Steamship Co., 184 N. Y. 280, 77 Ñ. E. 21. Cf. Runyan v. Central R. Co. of New Jersey, 61 N. J. L. 537, 41 Atl. 367. Contra, Le Conteur v. London & South Western Ry. Co., L. R. 1 Q. B. 54. The words must be strictly construed, for, first, the language is that of the carrier, and second, the limitation is in derogation of his common-law liability. Mynard v. Syracuse, Binghamton, &New York R. Co., 71 N. Y. 180. Moreover, the distinction between baggage bailed to the carrier for the journey and that retained in the personal control of the passenger is clear. See NOTES, p. 178.

CARRIERS BAGGAGE - PERSONAL EFFECTS RETAINED IN CONTROL OF PASSENGER. Goods disappeared from the plaintiff's handbag while it was in the custody of a servant of the defendant railroad, who was assisting the plaintiff in changing cars. No explanation of the loss was offered. Held, that the defendant is liable for negligence, but not as an insurer. Hasbrouck v. New York Central & Hudson River R. Co., 202 N. Y. 363, 95 N. E. 808. See NOTES, p. 178.

CARRIERS

LIMITATION OF LIABILITY PUBLICATION IN INTERSTATE RATE SCHEDULES AS NOTICE BINDING SHIPPER. The plaintiff, an interstate passenger of the defendant railroad, claimed as damages the actual value of baggage lost through the defendant's negligence. The defendant in compliance with the Interstate Commerce Act had filed with the Interstate Commerce Commission, and conspicuously published, schedules of rates and regulations with notice that it undertook to check free, baggage not exceeding a certain value. A higher rate was provided for baggage in excess of this value. The plaintiff did not know of the schedules or of any limitation of liability. Held, that she may recover the actual value of the baggage lost. Hooker v. Boston & Maine R., 95 N. E. 945 (Mass.).

I

By the common law in Massachusetts one shipping baggage is not bound by stipulations for limitation of liability of which he is ignorant. See Hood Co. v. American Pneumatic Service Co., 191 Mass 27, 29, 77 N. E. 638. The extent of his recovery may, however, be restricted by express contract or assent to the regulations. Bernard v. Adams Express Co., 205 Mass. 254, 91 N. E. 902; Graves v. Adams Express Co., 176 Mass. 280, 57 N. E. 462. This is law quite generally. Windmiller v. Northern Pacific Ry. Co., 52 Wash. 613, 101 Pac. 225. Contra, Hughes v. Pennsylvania R. Co., 202 Pa. St. 222, 51 Atl. 990. See 1 HUTCHINSON, CARRIERS, 3 ed., §§ 401 et seq. The English law seems more favorable to the carriers in giving effect to notices of limitation not actually brought to the shipper's attention. See Richardson, Spence, & Co. v. Rowntree, [1894] A. C. 217, 219; Parker v. South Eastern Ry. Co., 2 C. P. D. 416, 424. The Interstate Commerce Act requires schedules of rates and regulations to be filed and published. 3 U. S. COMP. STAT., 1901, Tit. 56 A, c. 1, § 6. The public are held to these rates and regulations when so filed and published regardless of knowledge of, or assent to, the rates. Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628; Melody v. Great Northern Ry., 25 S. D. 606, 127 N. W. 543. Whenever Congress has seen fit properly to legislate, the state law must give way. Gulf, Colorado, & Santa Fé Ry. Co. v. Hefley, 158 U. S. 98, 15 Sup. Ct. 802. But a stipulation of limited liability is not a rate nor a regulation, nor a necessary part of the schedule required by the act, so as to take the case out of the state law. It seems, therefore, that the Massachusetts common law, which requires assent to the stipulation, was properly held to apply in the principal case. Cf. Miller v. Chicago, Burlington, & Quincy R. Co., 85 Neb. 458, 123 N. W. 449; Fielder v. Adams Express Co., 71 S. E. 99 (W. Va.).

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CONFLICT OF LAWS - EFFECT AND PERFORMANCE OF CONTRACTS LAW GOVERNS NOTICE OF DISHONOR TO INDOrser of a NOTE. - The plaintiff was the holder of a promissory note payable in Canada, indorsed by the defendant in Illinois. Notice of dishonor was given in compliance with the law of Canada, but insufficient by the Illinois rule as to notes payable in Illinois, to charge the indorser. Held, that the defendant is liable upon his indorsement. Guernsey v. Imperial Bank of Canada, 188 Fed. 300 (C. C. A., Eighth Circ.).

There is a conflict of authority as to what law determines the time and sufficiency of notice of dishonor to charge the indorser. See note to Spies v. National City Bank, 61 L. R. A. 193, 217. The English cases hold that this is governed by the law of the place where the bill or note is payable. Rothschild v. Currie, 1 Q. B. 43; Rouquette v. Overmann, L. R. 10 Q. B. 525. This is the rule of the Bills of Exchange Act. STAT. OF 1882, 45 & 46 VICT. c. 61, § 72. The Negotiable Instruments Law has no provisions on conflict of laws, but the weight of American authority seems to prefer the law of the place of indorsement, on the ground that the contract is made there, and that due notice of dishonor according to the lex loci contractus is a condition precedent to any liability. Aymar v. Sheldon, 12 Wend. (N. Y.) 439;_ Snow v. Perkins, 2 Mich. 238. See STORY, CONFLICT OF LAWS, 8 ed., 440. Contra, Wooley v. Lyon, 117 Ill. 244, 6 N. E. 885. It is submitted that the Illinois rule is the more reasonable. The holder must act where the instrument is payable. To require that he find out the place of, and the law governing, each indorsement is a considerable burden. The indorser, on the other hand, always knows the place of payment and is free to protect himself accordingly.

CONSIDERATION

VALIDITY OF CONSIDERATION CONSIDERATION MOVING TO PROMISOR FROM THIRD PERSON. The directors of an insolvent corporation mutually agreed to forego their claims for directors' fees. The liquidator was a party to the agreement, although he gave no consideration in behalf of the corporation. Held, that the corporation can hold a director on the agreement. West Yorkshire Darracq Agency, Limited v. Coleridge, [1911] 2 K. B. 326. There are conflicting dicta in early English cases as to whether a person can sue on a promise made to him, the consideration for which has moved from a third party. See Pigott v. Thompson, 3 B. & P. 147, 149; Lilly v. Hays, 5 A. & E. 548, 550. In cases of contracts for the benefit of one not a party to the contract, the fact that the beneficiary is a stranger to the consideration has in some decisions been the ground for denying him recovery. Crow v. Rogers, I Str. 592; Tweddle v. Atkinson, 1 B. & S. 393. But it would seem that the true ground is that no promise is given to the beneficiary. See Price v. Easton, 4 B. & Ad. 433, 435. It is submitted that the basis of the common-law rule requiring consideration is that a promise, if paid for, should be binding, whether it is paid for by a stranger or by the promisee. In the United States this result has been reached where the consideration is an act performed by a third party. Palmer Savings Bank v. Ins. Co. of North America, 166 Mass. 189, 44 N. E. 211; Hamilton v. Hamilton, 127 N. Y. App. Div. 871, 112 N. Y. Supp. 10. It has been held, also, in accord with the principal case, that the promisee can recover when the consideration is a promise by a third party. Rector, etc. of St. Mark's Church v. Teed, 120 N. Y. 583, 24 N. E. 1014. This result secures the intention of the parties, and, it is submitted, is correct.

CONSTITUTIONAL LAW CONSTRUCTION, OPERATION, AND ENFORCEMENT OF CONSTITUTIONS CONSTITUTIONALITY OF AN APPELLATE COURT WITH FINAL JURISDICTION. A state constitution provided that the judicial power should be vested in a Supreme Court, circuit courts, and such other courts as the General Assembly might establish. A statute gave to an Appellate Court final