etc. Ry. Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722. The decision of the principal case is supported by much authority, but the better view would seem to be that indicated above.

PARENT AND CHILD - PERSONS ENTITLED TO CUSTODY OF CHILD. - The paternal grandparents in comfortable circumstances sought to obtain custody of a child from the mother, who had been deserted by her husband and was earning a scant livelihood. Held, that they may have it. Brown v. Brown, 56 So. 589 (Ala., App. Ct.).

A white widow with two white children married a mulatto. A Children's Home Society asked for custody of the children. Held, that it may not have it. Moon v. Children's Home Society of Virginia, 72 S. E. 707 (Va.).

In a conflict between the parents as to the right of custody of the child, the early English rule that the father was entitled to it has gradually given way in this country to the sounder principle that the welfare of the child is the most important consideration. King v. Greenhill, 4 A. & E. 624; Turner v. Turner, 93 Miss. 167, 46 So. 413. See SCHOULER, DOMESTIC RELATIONS, 5 ed., § 248. However, when the dispute is between a parent and an outsider, that should not be the sole test, for just claims of the parent must also be considered; the child has duties as well as rights. Accordingly, by the weight of authority, if the parent is able to give the child proper care and is not positively unsuitable for the trust, he will be given custody of the child, even though another can offer it greater material advantages. Moore v. Christian, 56 Miss. 408; Stapleton v. Poynter, 111 Ky. 264, 62 S. W. 730. Contra, Wood v. Wood, 77 N. J. Eq. 593, 77 Atl. 91. The Alabama decision seems, therefore, to neglect the parent's claim, although the entire question is one of discretion, depending on all the facts of the case. The other decision presents a novel form of disadvantage to the child, namely, loss of social position, but, on the principles stated, appears correct. It incidentally holds that remarriage does not deprive a mother of her right to the child. This seems sound, notwithstanding some technical arguments to the contrary. Beall v. Bibb, 19 App. D. C. 311. Contra, Worcester v. Marchant, 14 Pick. (Mass.) 510.

PUBLIC SERVICE COMPANIES RIGHTS AND DUTIES - DISCRIMINATION BY ELEVATOR ALLOWANCES TO SHIPPERS. - The Interstate Commerce Act permits allowances to shippers for services rendered in transportation. Certain railways, on their through rates, made an allowance to elevator owners at Missouri River points for the transfer in transit of their own as well as other grain. The Interstate Commerce Commission found that the process of elevation was being utilized for cleaning, clipping, mixing, and grading the grain belonging to the elevator owners, as dealers, and forbade further allowances upon such grain unless the treatment during elevation was discontinued. Held, that this order exceeds the powers of the commission. Interstate Commerce Commission v. Diffenbaugh, 32 Sup. Ct. 22. See NOTES, p. 456.

RECEIVERS

PRIORITY OF RECEIVERS' CERTIFICATES. The receiver of a steamship company issued certificates and with the proceeds of their sale paid the coupons of the bonds secured by a first mortgage. The funds left in his hands at the final accounting were not sufficient to pay in full both the certificate-holders and the bondholders. Held, that the certificate-holders have a prior claim upon the fund. American Trust Co. v. Metropolitan Steamship Co., 190 Fed. 113 (C. C. A., First Circ.). See NOTES, p. 458.

REFORMATION OF INSTRUMENTS - MORTGAGE AFTER

FORECLOSURE.

By a mutual mistake, a mortgage described the wrong land. The mortgagee foreclosed and bought in the land, acting under the original mistake. Held,

that he is not entitled to reformation of the master's deed. Fisher v. Villamil, 56 So. 559 (Fla.).

A mutual mistake in drawing a mortgage, whereby the wrong land is designated, gives the mortgagee an equity to have the mortgage reformed. If the purchaser at the foreclosure sale acts under the same mistake, his misapprehension and the error of the mortgagor and the mortgagee in the mortgage authorizing the sale may be said to constitute a mutual mistake. The mortgagee's equity of reformation is therefore kept alive and passes to the purchaser, and thus the purchaser gets an equity of reformation against the mortgagor. He should be able to enforce this equity by getting reformation of the mortgage and the sheriff's deed, or, if the court dislikes to reform a judicial proceeding, by getting a conveyance, having the effect of reformation, — provided that this is fair to the mortgagor. Quivey v. Baker, 37 Cal. 465; Waldron v. Letson, 15 N. J. Eq. 126. Contra, Miller v. Kolb, 47 Ind. 220. But if owing to the mistake the land was not sold for all that the right land might have brought, the buyer should be allowed to get reformation of the mortgage and rescission of the sheriff's sale, and a new foreclosure should be had. Conyers v. Mericles, 75 Ind. 443; Blodgett v. Hobart, 18 Vt. 414. Contra, Stephenson v. Harris, 131 Ala. 470, 31 So. 445.

RESCISSION RESCISSION UPON OTHER PARTY'S BREACH, REPUDIATION, OR INABILITY TO PERFORM - FORFEITURE OF DEPOSIT.- The defendant agreed in writing to purchase land of the plaintiff for £2450, of which £50 was to be paid as a deposit to the plaintiff's solicitors, as stakeholders. The contract made no provision as to the disposition of the deposit in the event of the purchaser's default. The deposit was paid, but the defendant neglected to pay the balance of the price, and an order was made rescinding the contract. Held, that the deposit is forfeited to the plaintiff. Hall v. Burnell, [1911] 2 Ch. 551.

When a contract of sale stipulates that part of the purchase price is to be paid down as a deposit and forfeited to the vendor in case of failure to pay the balance, the latter can recover the deposit on the purchaser's default. Collins v. Stimson, 11 Q. B. D. 142; Thompson v. Kelly, 101 Mass. 291. When no provision is made for the disposition of the deposit, the intent of the parties. is to be judged from the whole contract, and if any term is inconsistent with the vendor's retention of the deposit, it must be returned. Palmer v. Temple, 9 A. & E. 508. It is submitted that the relative size of the deposit and purchase price should be regarded as evidence as to whether a forfeiture was contemplated in case of failure to pay the balance. If no evidence as to the disposition of deposit can be gathered, the vendor may retain it, even though he has rescinded the contract or asks simultaneously for its rescission. Howe v. Smith, 27 Ch. D. 89; Dunn v. Vere, 19 Wkly. Rep. 151. Contra, Jackson v. De Kadish, [1904] Wkly. Notes 168. The principal case, following these decisions, shows a tendency to depart from the strict English rule that there can be no rescission unless all benefits acquired under the contract are returned. Cf. Hunt v. Silk, 5 East 449; Blackburn v. Smith, 2 Exch. 783.

RESTRAINT OF TRADE - COMBINATION BY AGREEMENTS AS TO PRODUCT OR PRICES PATENTED ARTICLES. The patentee of a dredger, useful but not indispensable in making enameled bathtubs, licensed four-fifths of the manufacturers of such ware to use it in return for their agreements to resell the unpatented bathtubs at certain prices, and only to designated jobbers, who in turn agreed to maintain non-competitive prices. Held, that the contracts constitute an illegal combination under the Sherman Anti-Trust Act. United States v. Standard Sanitary Mfg. Co., 191 Fed. 172 (Circ. Ct., D. Md.) NOTES, p. 454.

See

SALES -CONDITIONAL SALES — EFFECT ON SELLER'S TITLE OF TRANSFER OF NOTE GIVEN FOR PRICE. Under a contract of conditional sale, the plaintiff delivered an automobile, and took a promissory note for the unpaid balance of the price. He assigned the note to a bank, as collateral security for a loan. Held, that the assignment of the note vested an absolute title in the buyer. Winton Motor Carriage Co. v. Broadway Automobile Co., 118 Pac. 817 (Wash.). See NOTES, p. 462.

SPECIFIC PERFORMANCE — LEGAL CONSEQUENCES OF RIGHT OF SPECIFIC PERFORMANCE - EFFECT OF OPTION TO PURCHASE. - A. leased land to B., giving him an option to purchase at any time within five years on notifying A. or "his legal representative." A. died intestate, and B. notified A.'s administratrix of his intention to exercise his option. Held, that this notice is sufficient. Rockland-Rockport Lime Co. v. Leary, 203 N. Y. 469.

This case, although affirming the decision of the Appellate Division on the ground that the phrase "legal representative" in the option meant the administratrix, expresses a strong opinion that the lower court was in error in regarding the option as working an equitable conversion ab initio. See 23 HARV. L. REV. 70.

STATUTE OF FRAUDS - PART PERFORMANCE

- RETENTION OF POSSESSION.

- The plaintiff, while in possession of land of the defendant's testator as tenant at will, made an oral contract with him for the purchase of the land and continued in possession. Held, that the retention of possession renders evidence of the parol contract admissible, and if possession was retained under the contract, the plaintiff is entitled to specific performance. O'Donnell v. O'Donnell, 11 N. S. W. 340 (C. J. in Eq.).

The general rule unquestionably is that equity will take an oral agreement for the sale of land out of the Statute of Frauds on the ground of part performance only when the acts of part performance are referable exclusively to the existence of an agreement for the transfer of an interest in that land. Frame v. Dawson, 14 Ves. Jr. 386; Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131. The reason assigned for this requirement is that acts which might have been done with another view cannot properly be said to be done by way of part performance of the alleged agreement. See 2 STORY, EQUITY JURISPRUDENCE, 13 ed., 762. In applying the rule, the distinction almost universally made between the act of taking and that of merely continuing to hold possession seems sound on principle, the latter act, if unaccompanied by other circumstances, being clearly equivocal. Emmel v. Hayes, 102 Mo. 186, 14 S. W. 209. See Wills v. Stradling, 3 Ves. Jr. 378, 381; Morphett v. Jones, 1 Swanst. 172, 181. The decision in the present case, therefore, would seem to be difficult of justification, since, while sanctioning and professing to follow cases which adopt the general rule, it not only repudiates the above distinction, but lays down a principle inconsistent with the reason on which the general rule is based.

STATUTES IMPEACHMENT OF STATUTES READING AND RECONSIDERATION. A state constitution required that every bill be read on three different days in each house. The Senate rules provided that a motion to reconsider any bill could be made within two days after its passage. Bills identical in title and matter were introduced in both houses simultaneously. The House bill after passage was substituted for the Senate bill at its third reading. The Senate passed it, reported its passage to the House, and sent it to a joint committee for transmission to the Governor. Within two days the Senate moved to reconsider the bill, but failed to regain possession of it from either the House, the Governor, or the Secretary of State. Held, that the bill is now law. Smith v. Mitchell, 72 S. E. 755 (W. Va.).

One judge dissents upon the ground that the bill had only been read once in the Senate. But an amendment or a change in the number of a bill does not require three new readings. Capito v. Topping, 65 W. Va. 587, 64 S. E. 845; Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809. It seems somewhat technical to say that this bill did not have the required number. Archibald v. Clark, 112 Tenn. 532, 82 S. W. 310. A second and stronger ground for the dissent is that the Senate should have been allowed to reconsider its vote according to its rule. The majority feel that the Senate had lost control of the bill. A governor, within stated limits, can withdraw his approval from a bill so long as he keeps possession of the paper. People v. Hatch, 19 Ill. 283; People v. McCullough, 210 Ill. 488, 71 N. E. 602. Some authorities apparently rest the power of a legislative body upon the same criterion. Wolfe v. McCaull, 76 Va. 876. See JEFFERSON, MANUAL, $43. Others carry a clear implication that, within the time allowed for reconsideration, possession of the bill may be regained if properly applied for. See People v. Devlin, 33 N. Y. 269, 287; CUSHING, LAW AND PRACTICE OF LEGISLATIVE ASSEMBLIES, 2 ed., §§ 1274, 2394 et seq. To allow the Senate to get the bill back from the Governor would apparently curtail the time allotted him for consideration of the bill. W. VA. CONST., Art. 7, § 14.

TRADE-MARKS AND TRADE-NAMES - PROTECTION APART FROM STATUTE PARTICIPATION IN ILLEGAL ENTERPRISE AS BAR TO RELIEF AGAINST UNFAIR COMPETITION. The defendant sold medicinal preparations under a description calculated to produce the impression that they were products of the plaintiff. The plaintiff was violating the law forbidding stock corporations to practise medicine or conduct hospitals. Held, that the plaintiff is entitled to an injunction. World's Dispensary Medical Association v. Pierce, 96 N. E. 738 (N. Y.).

An injunction will issue against selling goods in a manner likely to deceive the public as to the proprietorship of the goods, although the plaintiff's description may not be the subject of trade-mark. Croft v. Day, 7 Beav. 84; Sterling Remedy Co. v. Spermine Medical Co., 112 Fed. 1000. The basis of the relief is not the fraud upon the public but the unfair competition with the plaintiff through the deception of the public. See 4 HARV. L. REV. 321. Relief is refused if the plaintiff is guilty of misconduct relating to the subject matter of the controversy. Thus misrepresentation as to the composition, the manufacturer, or place of manufacture, of the goods, or the existence of a patent upon them, is a bar. Worden v. California Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161; Manhattan Medicine Co. v. Wood, 108 U. S. 218, 2 Sup. Ct. 436; Preservaline Mfg. Co. v. Heller Chemical Co., 118 Fed. 103. But misconduct in collateral matters is no bar. Mossler v. Jacobs, 66 Ill. App. 571. For in applying the doctrine of clean hands the court cannot go outside of the precise matter in litigation. See I POMEROY, EQUITY JURISPRUDENCE, 3 ed., § 399. The sale of other articles with fraudulent representations is collateral. Shaver v. Heller & Merz Co., 108 Fed. 821. So is participation in a combination in restraint of trade. Cf. General Electric Co. v. Re-New Lamp Co., 128 Fed. 154; Cœur d'Alene Consolidated and Mining Co. v. Miners' Union, 51 Fed. 260. In the principal case, the illegality had no immediate or necessary relation to the sale of the goods.

TRADE UNIONS IN GENERAL - LEGALITY AT COMMON LAW. The defendant, who was believed to be totally incapacitated by accident from following his employment, received from his union a sum of money which he agreed to refund in case of recovery. The defendant recovered and refused to return the money. The union officials brought suit upon the agreement.

Held, that trade unions are unlawful at common law, so this action is not maintainable. Baker v. Ingall, 132 L. T. J. 131 (Eng., C. A., Nov. 30, 1911). See NOTES, p. 465.

TRUSTS NATURE of Trust RELATION-CESTUI QUE TRUST AS TRUSTEE. A testator devised property to A. in trust to pay the income to B. for life, and to pay B. any part of the principal which, in his judgment, B. might require for his support; remainder to A. Held, that another trustee should be appointed to manage the trust estate during the life of B. Matter of Townsend, 73 N. Y. Misc. 481 (Surr. Ct., Cattaraugus Co.).

The general rule that no one whose duty and interest may conflict should be appointed as trustee is everywhere recognized. In re Harrop's Trusts, 24 Ch. D. 717. Cf. In re Tempest, L. R. 1 Ch. 485. See I PERRY, TRUSTS AND TRUSTEES, 6 ed., § 59. The rule, being one of discretion, must occasionally yield to special circumstances. Ex parte Conybeare's Settlement, 1 Wkly. Rep. 458. In their application, however, the English courts follow the rule far more carefully than the American. Thus, an English court will not ordinarily appoint a relative or solicitor of a cestui que trust. Wilding v. Bolder, 21 Beav. 222; In re Kemp's Settled Estates, 24 Ch. D. 485. And a cestui que trust is in England never allowed to serve as sole trustee. Re Lightbody's Trusts, 52 L. T. J. 40. On principle and authority there is a difference between the appointment and removal of a trustee. Curran v. Green, 18 R. I. 329, 27 Atl. 596. A settlor or donee of a power to appoint a trustee may appoint as trustee a person whom the court would not itself appoint. In re Earl of Stamford, [1896] 1 Ch. 288, 299. But, it is submitted, in cases where the trustee's duty and interest will inevitably conflict, the court is justified in refusing to confirm a settlor's appointment. The English courts, in similar cases, have reached a result like that in the principal case. In re Norris, 27 Ch. D. 333.

TRUSTS RIGHTS AND LIABILITIES OF THIRD PARTIES PERSONAL LIABILITY OF TRUSTEES. - Trustees mortgaged the trust property and covenanted to pay the mortgage debt "as such trustees, but not otherwise." Held, that the trustees are liable personally for the mortgage debt. In re Robinson's Settlement, 46 L. J. 785 (Eng., Ch. D., Dec. 5, 1911).

A trustee is liable in full on contracts made for the trust estate, although he describes himself as trustee." Duval v. Craig, 2 Wheat. (U. S.) 45; Muir v. City of Glasgow Bank, 4 App. Cas. 337. Since the estate cannot be liable at law, a judgment may always be had against him personally. Taylor v. Davis' Admx., 110 U. S. 330, 4 Sup. Ct. 147. But he may everywhere limit his liability, expressly, to the amount of the trust fund in his hands. Williams v. Hathaway, 6 Ch. D. 544; Shoe and Leather National Bank v. Dix, 123 Mass. 148. It has been held in England that a clause exempting the trustee from "personal liability" attempts to destroy all liability and is void as being repugnant to the covenant itself. Furnivall v. Coombes, 5 M. & G. 736; Watling v. Lewis, [1911] I Ch. 414. Yet the plain intention of such a clause is only to exempt the trustee's own property. A different result would certainly be reached in the United States, where the constant practice is to regard the intention of the parties, retaining the presumption in favor of full liability. Glenn v. Allison, 58 Md. 527; Germania Bank v. Michaud, 62 Minn. 459, 65 N. W. 70. The principal case proceeds on the ground that to limit liability would here destroy it altogether. Cf. Fehlinger v. Wood, 134 Pa. St. 517, 19 Atl. 746. But, in the absence of misrepresentation, the plaintiff has consciously assumed the risk of such a result. Day v. Brown, 2 Oh. 345; Thayer v. Wendell, 1 Gall. (U. S.) 37. See Hussey v. Arnold, 185 Mass. 202, 204, 70 N. E. 87, 88. The words used can scarcely be considered ambiguous. Cf. Gordon v. Campbell, 1 Bell App. Cas. 428.