South Boston R. Co., 150 Mass. 200, 22 N. E. 917. See Ryan v. World Mutual Life Ins. Co., 41 Conn. 168, 171. But cf. Blair v. Baird, 43 Tex. Civ. App. 134, 94 S. W. 116. On this ground the courts refuse to attribute the knowledge of the agent to his principal, when its concealment is to the personal interest of the agent. American Surety Co. v. Pauly, 170 U. S. 133, 18 Sup. Ct. 552. See Kettlewell v. Watson, 21 Ch. D. 685, 707. But the defendant may be liable for his agent's acts, because the misrepresentations are made to a third party. Barwick v. English Joint Stock Bank, L. R. 2 Exch. 259.

ASSIGNMENTS FOR CREDITORS - RIGHTS OF CREDITORS - PROOF OF COSTS IN JUDGMENT OBTAINED AFTER ASSIGNMENT. After an assignment for the benefit of creditors, directing the assignee to pay "all the debts and liabilities now due or to grow due," the plaintiff recovered a judgment against the assignor for a conversion which had occurred before the assignment. Held, that the entire judgment, including costs and interest, is provable. Matter of Whitney, 146 N. Y. App. Div. 45.

The decision as to the costs should not be rested on the words "to grow due" in the assignment, since they require no wider interpretation than will make them apply to claims not yet payable, though already in existence. In the absence of express words in the assignment, only claims incurred before the assignment are provable. Weinmann and Co.'s Estate, 164 Pa. St. 405, 30 Atl. 389. Cf. Dean and Son's Appeal, 98 Pa. St. 101. The reduction to judgment, however, of a claim incurred before the assignment does not so change it as to deprive the creditor of his right to prove it. Second National Bank v. Townsend, 114 Ind. 534, 17 N. E. 116. Moreover, a judgment is conclusive on the assignee, as the privy of the debtor, with regard to the amount of the indebtedness established thereby. Matter of Roberts, 98 N. Y. App. Div. 155, 90 N. Y. Supp. 731; Merchants' National Bank v. Hagemeyer, 4 N. Y. App. Div. 52, 38 N. Y. Supp. 626. The only exceptions ordinarily allowed are in cases of judgments obtained by fraud or collusion. See Ludington's Petition, 5 Abb. N. C. (N. Y.) 307, 322. But see Garland v. Rives, 4 Rand. (Va.) 282, 316. These being absent in the present case, the result reached would seem to be correct. A contrary view, however, has been taken in at least one state. Assigned Estate of Jamison, 163 Pa. St. 143, 29 Atl. 1001. But cf. Pittsburgh and Steubenville R. Co.'s Appeal, 2 Grant (Pa.) 151.

ATTORNEYS ·RELATION BETWEEN ATTORNEY AND CLIENT — COLLUSIVE DISCONTINUANCE BY CLIENT. — A., having employed B. for a contingent fee to sue C., made a collusive settlement with C., after a verdict for the plaintiff and motion for a new trial, to defeat B.'s fee. B. brought a bill in equity to restrain C. from using the agreement to procure a dismissal of the action. Held, that the bill will not lie, since in the trial at law B. can proceed to final judgment for his own benefit. Burkhart v. Scott, 72 S. E. 784 (W. Va.).

A valid contract for the payment of a contingent fee does not give the attorney such an interest in the cause of action as to prevent the plaintiff from compromising the suit. Coughlin v. New York, etc. R. Co., 71 N. Y. 443; Wright v. Wright, 70 N. Y. 96. It is also clear that although an attorney has a lien for his costs on a judgment that has been obtained, he has none on the cause of action itself. Hanna v. Island Coal Co., 5 Ind. App. 163, 31 N. E. 846. See Sandberg v. Victor Gold and Silver Mining Co., 18 Utah 66, 76, 55 Pac. 74, 77. Where by statute a lien is given on the cause of action, it has been held that, upon the settlement of a case, the attorney, by obtaining leave of court, can prosecute the suit to judgment for his own benefit. Manning v. Manning, 61 Ga. 137; Coleman v. Newsome, 58 Ga. 132. At common law, however, this right appears to be limited to cases of collusive settlements. See Randall v. Van Wagenen, 115 N. Y. 527, 531-532. In these cases, the right would seem

to be eminently desirable for the protection of attorneys, and it is quite commonly allowed. Jones v. Morgan, 39 Ga. 310; Pilkington v. Brooklyn Heights R. Co., 49 N. Y. App. Div. 22, 63 N. Y. Supp. 211. It has sometimes been thought that its existence is an anomaly. See Coughlin v. New York, etc. R. Co., supra, 448. It is submitted, however, that it can be justified by reference to the summary or equitable jurisdiction possessed by common-law courts to prevent an abuse of their authority. See SMITH, ACTION AT LAW, 10 ed.,

20-23.

BANKRUPTCY PROPERTY PASSING TO TRUSTEE - BANKRUPT'S TITLE IN CAUSE OF ACTION BEFORE APPOINTMENT OF TRUSTEE. - A voluntary bankrupt brought suit against the defendant after filing the petition, but before the election of a trustee. Held, that the defendant may not defeat the suit by showing the pendency of the bankruptcy proceedings. Johnson v. Collier, U. S. Sup. Ct., Jan. 9, 1912.

Though authorities are few, the better opinion seems to be that the title to the bankrupt's property after the adjudication and prior to the election of a trustee is not in custodia legis, but is defeasibly vested in the bankrupt. See 20 HARV. L. REV. 411; 21 id. 531; 25 id. 79.

BANKRUPTCY SET-OFF - DEBT OF BANKRUPT AND DEBT OF CREDITOR TO TRUSTEE. A trustee in bankruptcy sued on a claim for services rendered by him as trustee. The defendant set up a counterclaim for the failure of the bankrupt to perform a contract. This failure had occurred subsequently to the bankruptcy. The Bankruptcy Act, § 68, allows set-offs in "cases of mutual debts or mutual credits;" the set-off against the bankrupt must be a provable claim. Held, that the set-off should not be allowed. Howard v. Magazine & Book Co., 131 N. Y. Supp. 916 (App. Div.).

Mutual debts must be in the same right. Wright v. Rogers, 3 McLean (U. S.) 229; Bausman v. Kinnear, 79 Fed. 172. The trustee in bankruptcy acts in a dual capacity, representing the creditors and the bankrupt. Rights and obligations passing to him from the bankrupt are in the interest of the bankrupt; obligations incurred by him subsequently, in that of the creditors. Obligations of the latter kind must be settled in full, whereas the bankrupt's creditors obtain only a dividend. The debts are clearly in different rights, and it would be unfair to give one creditor full payment, merely because he became indebted to the trustee. The English law under like statutes is in accord. Alloway v. Steere, 10 Q. B. D. 22; West v. Pryce, 2 Bing. 455. The converse of the principal case should be similarly decided. But see In re Crystal Spring Bottling Co., 100 Fed. 265. The case suggests the further question whether a claim on an executory contract is provable at all. See BANKRUPTCY ACT OF 1898, § 68. If the contract is unilateral, it should be, for there is a fixed liability of the bankrupt to perform; but when it is an assignable bilateral contract, there is a contingency that the trustee will elect to make it his own and not the bankrupt's, and the provability of contingent claims is doubtful. See 23 HARV. L. REV. 636.

BANKRUPTCY VOLUNTARY PROCEEDINGS - DISTRIBUTION OF SURPLUS. After the principal of all approved claims against a voluntary bankrupt's estate was paid in full, together with interest to the date of filing of the petition, a large surplus remained in the hands of the trustee. Held, that those who held approved claims are entitled to interest accruing on them after the filing of the petition. Johnson v. Norris, 190 Fed. 459 (C. C. A., Sixth Circ.). Under the present bankruptcy act, insolvency is not a voluntary petition. BANKRUPTCY ACT OF 1898, § 4 a. BANKRUPTCY, 42; COLLIER, BANKRUPTCY, 8 ed., 96.

requisite to filing a See I REMINGTON, But the act makes

no provision for the disposition of a surplus remaining after all debts of the bankrupt are paid in full. Therefore, as to such a surplus, the court is remitted to ordinary equitable principles, and it is equitable that the bankrupt should get the surplus only after the trustee has paid the creditors the interest on their claims up to the date of payment. A similar result was reached under the Act of 1867, under a former English act, and under several state insolvency laws. In re Hagan, Fed. Cas., No. 5898; Bromley v. Goodere, 1 Atk. 75; Williams v. American Bank, 45 Mass. 317. In the only other case involving the distribution of a surplus under the present act, this point seems to have been assumed. Re Osborn's Sons & Co., 177 Fed. 184.

CARRIERS PERSONAL INJURIES TO PASSENGERS - DUTY TO PROTECT FROM ARREST. - The plaintiff was a passenger in a sleeping car on the defendant's train. Public officers, having information that a person suspected of having committed murder in Indiana was in the berth occupied by the plaintiff, boarded the train in New York, and showed their police badges to the conductor, who pointed out the plaintiff's berth. The plaintiff was arrested without a warrant and removed from the train, but was released the following day. Held, that the defendant is not liable. Burton v. New York, etc. R. Co., 46 N. Y. L. J. 1287 (N. Y., App. Div., Dec., 1911).

Although the carrier is bound legally to use the highest degree of care practicable to protect passengers, it is not an insurer of their safety. Boyce v. Anderson, 2 Pet. (U. S.) 150; Wright v. Chicago, B. & Q. R. Co., Colo. App. 102, 35 Pac. 196. The majority opinion in the principal case, proceeding on the ground that the arrest was valid, coincides with settled law that the carrier owes no duty to interfere with the lawful arrest of a passenger. See Brunswick & Western R. Co. v. Pouder, 117 Ga. 63, 43 S. E. 430, 431. It would seem that the carrier owes no greater duty of protection from unlawful arrest by officers having apparent authority. See Duggan v. Baltimore & Ohio R., 159 Pa. St. 248, 255, 28 Atl. 182, 185. The carrier is not negligent in submitting to the demands of officers whose duty it is to enforce the laws. Mayfield v. St. Louis, I. M. & S. Ry. Co., 97 Ark. 24, 133 S. W. 168. See 2 HUTCHINSON, CARRIERS, 3 ed., § 987. To hold otherwise would impose upon the carrier the precarious duty of passing on the right of a legal officer to make an arrest. Bowden v. Atlantic Coast Line R. Co., 144 N. C. 28, 56 S. E. 558. The argument of the dissenting judge is based partly on the analogy of attachment of goods in the hands of the carrier, who is protected only if the process is valid. Edwards v. White Line Transit Co., 104 Mass. 159. It is submitted that this ignores the distinction between the liability of the carrier of goods and that of the carrier of passengers.

CONFLICT OF LAWS SITUS OF CHOSES IN ACTION ATTACHMENT OF STOCK CERTIFICATES. The plaintiff brought an action in Kentucky and recovered judgment against the defendant A., a resident of New York. The plaintiff, in proceedings under a Kentucky statute, served a writ of attachment on the defendant B., a Delaware corporation having its principal office, its books, its plant, and all its assets in Kentucky. The attachment covered a certificate for stock transferred to B. by A. in fraud of creditors, and also stock, the certificate for which A. himself held in New York. Held, that the attachment is valid as to all the shares. Bowman v. Breyfogle, 140 S. W. 694 (Ky.).

As a corporation exists only at its domicile, its stock should be attachable there alone, irrespective of the location of the certificates. Ireland v. Globe Milling and Reduction Co., 19 R. I. 180, 32 Atl. 921; Christmas v. Biddle, 13 Pa. St. 223; Smith v. Downey, 8 Ind. App. 179. Two courts, however, hold the contrary view, considering that stock certificates are now generally treated

as personal property. Simpson v. Jersey City Contracting Co., 165 N. Y. 193, 58 N. E. 896; Puget Sound National Bank v. Mather, 60 Minn. 362, 62 N. W. 396. But this obscures the fundamental distinction between the property in the certificate itself and the interest in the corporation represented by it. Moore v. Gennett, 2 Tenn. Ch. 375. See 25 HARV. L. REV. 74. As to the New York shares the court held that the defendant corporation had become domesticated, thus making Kentucky the situs of its stock a conclusion supported by one case in which statutes required the corporation to undergo certain domesticating processes before entering the state. Young v. South Tredegar Iron Co., 85 Tenn. 189, 2 S. W. 202. The Kentucky provision that "stock in a corporation is attachable hardly justifies this result, and similar provisions under almost identical circumstances have been held to cover only domestic corporations. Plimpton v. Bigelow, 93 N. Y. 592, reversing 29 Hun (N. Y.) 362; Ireland v. Globe Milling and Reduction Co., supra. And although there appears no inherent prohibition on legislative enactment making the possibility of such attachment a condition precedent to the corporation's entering the jurisdiction, it is submitted that for reasons of comity and justice the court should construe this as covering only the property in the certificate itself.

CONTRIBUTORY NEGLIGENCE STATUTORY ACTIONS INTENT OF STATUTE TO ABROGATE DEFENSE. A statute required railroads to erect cattle guards and provided that the railroad should be liable civilly for any injury to cattle or stock resulting from a failure to comply with the statute. Held, that contributory negligence is no defense to an action on the statute. Chapin v. Ann Arbor R. Co., 133 N. W. 512 (Mich.).

A statute made it illegal to sell oil under 105° Fahrenheit test and provided that anyone violating the statute should be liable civilly for any injury caused by an explosion thereof. Held, that contributory negligence is a bar to recovery. Morrison v. Lee, 133 N. W. 548 (N. D.). See NOTES, p. 463.

CORPORATIONS- CORPORATIONS DE FACTO-LIABILITY OF DIRECTORS AS PARTNERS. - The plaintiff sold goods to the F. J. Pound Company, not knowing whether the company was a corporation or a partnership. The company had attempted incorporation but had failed because it had not filed articles of association with the county clerk. Held, that the plaintiff cannot recover from the directors as copartners. Newcomb-Endicott Co. v. Fee, 133 N. W. 540 (Mich.).

66

The principal case falls midway between two well-established cases. (1) Where one sells goods to a de facto corporation, reasonably believing it to be a partnership, he can hold the incorporators to an individual liability. Guckert v. Hacke, 159 Pa. St. 303, 28 Atl. 249. Cf. Rust-Owen Lumber Co. v. Wellman, 10 S. D. 122, 72 N. W. 89. (2) Where there has been dealing on a corporate basis with a de facto corporation, collateral attack will be denied. Snider's Sons Co. v. Troy, 91 Ala. 224, 8 So. 658. Cf. Whitney v. Wyman, 101 U. S. 392, 397. There is said to be a presumption of dealing on a corporate basis when a corporate-sounding name" is used. Allen v. Hopkins, 62 Kan. 175, 61 Pac. 750. Cf. Seymour v. Harrow Co., 81 Ala. 250, 1 So. 45. It is doubtful whether this presumption is warranted in all cases, since partnerships and even individuals lawfully may, and often do, use such names in business transactions. Anderson v. Walsh, 189 N. Y. 159, 81 N. E. 764. See LINDLEY, PARTNERSHIP, 7 ed., 107. The better rule would seem to be that where, as in the principal case, a seller does not consider whether he is dealing with a corporation or a partnership, the associates in order to escape individual liability should make out de jure incorporation. There is no argument ad hominem or reason of policy for confining the seller to an action against the de facto corporation. See 20 HARV. L. Rev. 456, 471-474.

DECEIT GENERAL REQUISITES AND DEFENSES - REPRESENTATIONS OF VALUE AS FACT. The defendant induced the plaintiff to buy her hotel property by making representations, known to be false, that it was worth $35,000 and was a “big paying proposition." In fact the property was worth about $17,000. The plaintiff was particularly ignorant and inexperienced in business matters, as the defendant knew. The court charged that the plaintiff could recover if the misrepresentations were intended and understood by the parties as assertions of fact. Held, that this is not error. Adan v. Steinbrecher, 133 N. W. 477 (Minn.).

As a general rule misrepresentations of value are regarded as mere statements of opinion, "seller's talk," and not actionable. Chrysler v. Canaday, 90 N. Y. 272. But under some circumstances a statement ordinarily one of opinion may be a statement of fact. Andrews v. Jackson, 168 Mass. 266, 47 N. E. 412. So an action is allowed where the vendor has special means of knowledge which the vendee has not. Shelton v. Healy, 74 Conn. 265, 50 Atl. 742. Or where the value is difficult of ascertainment, and can be known only to an expert. Picard v. McCormick, 11 Mich. 68. Or where the defendant is in a position of trust or confidence. Hauk v. Brownell, 120 Ill. 161, 11 N. E. 416. See Gustafson v. Rustemeyer, 70 Conn. 125, 133, 39 Atl. 104, 106. Or where the vendor dissuades the vendee from making inquiries which would disclose the truth. Nysewander v. Lowman, 124 Ind. 584, 24 N. E. 355. Whether in a particular case the words are a statement of fact or of opinion must depend largely on the circumstances of the case, with the broad general principle that the law does not permit misrepresentations made with intent to deceive intending purchasers. Cf. Watson v. Molden, 10 Idaho 570, 582, 79 Pac. 503, 507. The principal case accords with the modern tendency to hold the doctrine of "seller's talk" inapplicable where the misrepresentation of value is made and acted on as an affirmation of fact. Crompton v. Beedle, 83 Vt. 287, 75 Atl. 331; Hetland v. Bilstad, 140 Ia. 411, 118 N. W. 422.

EVIDENCE CHARACTER SPECIFIC ACTS TO SHOW CHARACTER OF DECEASED ON ISSUE OF SELF-DEFENSE. Evidence was excluded that the deceased had said that he was a 66 desperado nigger" and had been sentenced to the state penitentiary. Held, that this is not error. Coulter v. State, 140 S. W. 719 (Ark.).

When there is some evidence of self-defense, the violent character of the deceased, even if unknown to the defendant, may probably be used to show who was the aggressor. See I WIGMORE, EVIDENCE, § 63. Threats by the deceased may also be used for this purpose. Wilson v. State, 30 Fla. 234, 11 So. 556; State v. Turpin, 77 N. C. 473. But particular acts of violence should not be admissible for this purpose unless closely connected with the act charged. People v. Gaimari, 176 N. Y. 84, 68 N. E. 112; State v. Sale, 119 Ia. 1, 92 N. W. 680. But cf. State v. Beird, 118 Ia. 474, 92 N. W. 694. When the issue of self-defense is raised and the accused knew of the violent character of the deceased, this may be used to show that the former acted under the apprehension of danger. Monroe v. State, 5 Ga. 85, 137; Horlock v. State, 43 Tex. 242. Threats by the deceased known to the accused may also be used for this purpose. Powell v. State, 52 Ala. 1; State v. Burton, 63 Kan. 602, 66 Pac. 633. As to whether specific acts of violence by the deceased known to the accused may be admitted for this purpose, authorities differ. People v. Harris, 95 Mich. 87, 54 N. W. 648; People v. Thomas, 67 N. Y. 218; Alexander v. Commonwealth, 105 Pa. St. 1. But since there is no allegation in the principal case that the defendant knew of the facts excluded, the decision seems sound. Nor do the statements show the mental attitude of the deceased in regard to the crime charged sufficiently to claim admission on that ground. Cf. Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961.