has been uniformly recognized by the courts. Yet it has become almost universal to lay down certain arbitrary tests governing such relief. The most striking example is the rule that voluntary payments cannot be recovered.2 It is to be regretted that such an expression ever came to be frequently applied, for not only are the courts hopelessly confused as to what is a voluntary payment, but only too often has the use of the words as a solving phrase obscured the true ground of the relief given.1

In a recent English case the highway authorities of a parish made some repairs on a road which the defendants were under a statutory duty to make but refused to undertake. It was held that the authorities were volunteers in making the repairs and could not recover their expense. Macclesfield Corporation v. The Great Central Ry., [1911] 2 K. B. 528.

6

The cases which have recognized the true equitable nature of the problem seem to have arrived at the result that, once the primary liability is fixed on the defendant, it is only just that he should pay one who has relieved him of it, unless the facts show that the payment was made as a gift or was unreasonable, officious. Thus recovery may be had for payments made under compulsion of any kind even though it does not amount to duress. Acting in pursuance of a strong moral duty will be enough to warrant recovery. Doing an act which is for the public benefit or in the furtherance of which the public has an interest will be sufficient reason for recovery even though the motive is also to benefit the actor.10 Where a finder preserves lost property, he may recover from the owner for services so rendered." On the same principle a purchaser at an execution sale may recover from the debtor if the latter had

1 Moses v. Macferlan, 2 Burr. 1005; Western Assurance Co. v. Towle, 65 Wis. 247. 2 Recovery is denied on this ground very frequently. See Fellows v. School District, 39 Me. 559; Wood v. City of New York, 25 N. Y. App. Div. 577. The same tendency is shown in the rule that there may be no recovery for mistake of law. Bilbie v. Lumley, 2 East 469. Another example is the rule requiring a plaintiff who has waived a tort to abide by his choice at all events. Terry v. Munger, 121 N. Y. 161.

3 Some cases have required an element of compulsion to prevent the payment from being voluntary. Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535. Others require that the plaintiff have acted in furtherance of a duty either legal or equitable. Earle v. Coburn, 130 Mass. 596. The only thing that seems settled is that payments are not necessarily voluntary in which the actor's mind is active, or which are not made under duress, or undue influence. Exall v. Partridge, 8 T. R. 308; Patterson v. Patterson, 59 N. Y. 574.

Matheny v. Chester, 141 Ky. 790. Thus recovery has been denied of payments illegally charged for a permit to build vaults under a city street. Wood v. City of New York, supra.

5 Moses v. Macferlan, supra.

Osborn v. The Governors of Guys Hospital, 2 Str. 728; Doyle v. The Rector, Churchwarden and Vestrymen of Trinity Church, 133 N. Y. 372.

7 KEENER, QUASI-CONTRACTS, 388.

8 Exall v. Partridge, supra. Payment in pursuance of an illegal demand of taxes may be recovered. Preston v. City of Boston, 12 Pick. (Mass.) 7.

9 Recovery is allowed a plaintiff from the deceased's estate for burial of a corpse. Ambrose v. Kerrison, 10 C. B. 776. A plaintiff who supports one in need may recover from the person chargeable in the first instance. Forsyth v. Ganson, 5 Wend. (N. Y.) 558.

10 Nicholson v. Chapman, 2 H. Bl. 254. Cf. Great Northern Ry. Co. v. Swaffield, L. R. 9 Exch. 132.

11 Nicholson v. Chapman, supra; Chase v. Corcoran, 106 Mass. 286.

no title to the goods sold.12 But where both the effect and motive serve only a personal desire, such as to save one's credit when the payment could not have been demanded, recovery has been denied.13

Though there is no actual compulsion in the principal case, yet it is submitted that the services were not so unreasonable as to justify the denial of a recovery. The repair of streets is as much to be encouraged, as a public matter, as the preservation of lost property. Even though the repairs were made to protect the plaintiffs' position as highway authorities, yet that should be no bar to recovery, since their position makes it reasonable for them to act. Since they represent the voters in the repair of streets, it is as reasonable for them to act as it would be for the voters themselves. And it would be difficult to say that the voters of a district were officious in repairing their roads. In truth the highway authorities could not avoid making the repairs without prejudicing themselves and repudiating their duty toward the voters, which exists even though legal liability to repair is removed. It seems, therefore, that an arbitrary use of the phrase "voluntary payment" has led the court to deny relief in a case where in equity and good conscience the defendant should pay.

THE DATE TO WHICH THE TITLE OF THE TRUSTEE IN BANKRUPTCY RELATES BACK. Under the Bankruptcy Act of 1867 the title of the assignee to the estate of the bankrupt related "back to the commencement of the proceedings in bankruptcy." It was held that under this provision the assignee could sue to recover goods transferred by the bankrupt after the filing of the petition but before the adjudication.2 The present act provides that "the trustee of the estate of a bankrupt, upon his appointment and qualification, . . . shall . . . be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt." But among the classes of the bankrupt's property so passing to the trustee the act mentions "(5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him."3 An attempt has been made to reconcile these different statements as to the date of relation back of the trustee's title by saying that the words "prior to the filing of the petition" refer to what property passes to the trustee, the words "as of the date he was adjudged a bankrupt" to the time when the property passes. But it is plain that the effect of either phrase must be merely to determine what property passes to the trustee, since the trustee cannot really take title till his appointment and qualification.5

12 McGhie v. Ellis, 4 Litt. (Ky.) 244; Preston v. Harrison, 9 Ind. 1; Reed v. Crosthwait, 6 Ia. 219. These decisions are in equity. No case seems to have arisen at law, but Professor Keener believes the same result should be achieved. KEENER, QUASICONTRACTS, 396.

13 Harvey v. Girard National Bank, 119 Pa. St. 212.

1 U. S. REV. STAT., 1878, § 5044.

2 Bank v. Sherman, 101 U. S. 403.

BANKRUPTCY ACT OF 1898, § 70 a.

See In re Pease, 4 Am. B. R. 578, 581; COLLIER, BANKRUPTCY, 8 ed., 807.

' Fuller v. New York Fire Ins. Co., 184 Mass. 12; Rand v. Iowa Central Ry. Co.,

It would seem, since no reference is made to the date of the filing of the petition in connection with the other classes of property passing to the trustee, that the reference to it in connection with the fifth class was due to inadvertence and that Congress really intended to make the adjudication the date of cleavage. Dicta may be found which seem to interpret the statute as having this effect. By the decided weight of authority, however, it is interpreted as making the filing of the petition the date of cleavage. Thus a leading case holds that the bankrupt need account to the trustee only for moneys received from goods sold from the stock as it existed at the date of filing of the petition, not from other goods sold before the adjudication. Property transferable by the bankrupt at the date of filing passes to the trustee. But property acquired by him between that date and the adjudication does not. And therefore the latter need not be included in the bankrupt's schedules.10 This construction of the statute has been used as an argument to give jurisdiction to the court in which a petition is first filed as against the court making the first adjudication." It has been adopted as the basis of an inference that all provable claims must exist at the time when the petition is filed.12 And, finally, it has been invoked to permit recovery by the trustee from creditors of money obtained by the attachment of the bankrupt's property between the filing of the petition and the adjudication.13

In a recent case, a bank, having on deposit moneys belonging to one against whom a petition in bankruptcy had been filed, without notice of the filing, paid out money on checks delivered by the depositor to the payee previous to the filing of the petition. It was held that the bank could not be required, on summary order, to turn over to the trustee in bankruptcy the amount so paid out. Matter of Zotti, 26 Am. B. R. 234 (C. C. A., Second Circ.). This case proceeds on the theory, opposite to that indicated above, that the trustee cannot recover on the ground that his title relates back to a period prior to the date of adjudication. It finds support in a decision allowing a lienee of the bankrupt's property to perfect his title after the petition has been filed.14 If it is to be reconciled with the current of authority on other than procedural grounds, it must be by a loose construction of the statute which will make the date of filing of the petition the test of the bankrupt's title for most purposes, but will protect “honest transactions” occurring between that date and the date of adjudication.15 A similar distinction is specifically provided for by the English statute.16

186 N. Y. 58; Gordon v. Mechanics' & Traders' Ins. Co., 120 La. Ann. 441. Cf. Rand v. Sage, 94 Minn. 344.

6 See Hiscock v. Varick Bank of New York, 206 U. S. 28, 40; Keegan v. King, 96 Fed. 758, 760; In re Peacock, 178 Fed. 851, 855; Matter of Fletcher, 16 Am. B. R. 491, 493; Atchison, T. & S. F. Ry. Co. v. Hurley, 153 Fed. 503, 509.

7 In re Pease, 4 Am. B. R. 578.

8 In re Barrow, 98 Fed. 582; In re Driggs, 171 Fed. 897.

In the Matter of Freeman, 2 N. B. N. Rep. 569; In re Ghazal, 174 Fed. 809. See Sibley v. Nason, 196 Mass. 125, 131.

10 In re Harris, 2 Am. B. R.1359. See In the Matter of Oliver, 2 N. B. N. Rep. 212, 217. 11 In re Elmira Steel Co., 109 Fed. 456. 12 In re Burka, 104 Fed. 326.

13 State Bank of Chicago v. Cox, 143 Fed. 91. 14 In re Mertens, 144 Fed. 818.

15 Cf. I REMINGTON, BANKRUPTCY, §§ 1132-1136.

16 BANKRUPTCY ACT, 1883, 46 & 47 VICT. c. 52, §§ 43-49.

RECENT CASES.

ADMIRALTY PRACTICE APPEARANCE OF OWNER AFTER LIBEL IN REM; JUDGMENT IN PERSONAM. The defendants' vessel was arrested, in a suit in rem, for damages caused by a collision. The defendants, who were foreigners, though not served, entered an appearance, bonded the vessel, defended the suit, and put in a counterclaim. Held, that personal judgment may be given against the defendants and their bail for the whole damage, though it exceeds the value of the vessel arrested. The Dupleix, 27 T. L. R. 577 (P. D.). This case, following two cases on substantially the same question, may be taken to settle the law in England to the effect that, if the defendant enters an appearance in an action in rem, a personal judgment may be given against him. The Dictator, [1892] P. 304; The Gemma, [1899] P. 285. The arrest of a vessel on a libel in rem is thus given the same effect as a foreign attachment, which results in a personal action. Atkins v. The Disintegrating Co., 18 Wall. (U. S.) 272. Such an attachment is the nearest approach to an action in rem found in the practice of the ancient admiralty court of England. See CLERKE, PRAXIS CURIAE ADMIRALITATIS ANGLIAE, 3 ed. (1722), 38. It seems curious that the later English cases should follow this practice in a suit professedly in rem, inasmuch as the conception of an action purely against the thing itself, based on a maritime lien, and quite distinct from a suit against the owner, was recognized by the Privy Council in 1850. The Bold Buccleugh, 7 Moore P. C. 267. Dr. Lushington, in 1842, expressed the opinion that no judgment in personam could be given in a suit in rem. See The Volant, 1 W. Rob. 383, 389. His view is followed in the United States. The Monte A., 12 Fed. 331; The Nora, 181 Fed. 845.

BANKRUPTCY - DISCHARGE — EFFECT ON SURETY ON ATTACHMENT BOND. - Property of the defendant was attached more than four months prior to the filing of his petition in bankruptcy, and released on a surety bond. The defendant pleaded his discharge in bankruptcy. Held, that a special judgment with stay of execution may be rendered to hold the surety. Butterick Pub. Co. v. Bowen Co., 80 Atl. 277 (R. I.).

Property of an insolvent defendant was attached within four months prior to his bankruptcy, and released on a surety bond. The plaintiff recovered judgment. The court granted an order upon the defendant and its surety for the production of the property attached, to enable the plaintiff to sue on the bond. Held, that the order should be annulled. Wise Coal Co. v. Columbia Zinc & Lead Co., 138 S. W. 67 (Mo., St. Louis Ct. App.).

These cases represent the weight of authority. U.S. Wind Engine & Pump Co. v. North Penn Iron Co., 227 Pa. St. 262; Windisch-Muhlhauser Brewing Co. v. Simms, 55 So. 739 (La.). The first rests upon the fiction that the bond is given for the lien. This is hard to sustain on principle, because the bond does not become a debt until judgment is unsatisfied. Carpenter v. Turrell, 100 Mass. 450. The discharge being a bar to the action, the contingency on which the surety's liability depends can never happen. See Wolf v. Stix, 99 U. S. 1, 9. But except for the bond, the plaintiff could enforce his lien. Bassett v. Thackara, 72 N. J. L. 81. A contrary decision in the principal case would mean that the plaintiff's advantage is lost if the defendant can, and retained if he cannot, obtain a surety. See In re Albrecht, 17 N. B. R. 287, 292. The decision accords with the spirit of § 16 of the Act of 1898, and does substantial justice. See Hill v. Harding, 130 U. S. 699, 703.

BANKRUPTCY - PARTNERSHIP AND INDIVIDUAL CLAIMS AND ASSETS EFFECT OF ACT OF BANKRUPTCY ON NON-ASSENTING PARTNER.

- One of

two partners executed a general assignment of firm property. In bankruptcy proceedings against the partnership and the individual partners, the partner not assenting to the assignment set up that his individual assets exceeded his individual debts. The property of the firm together with that of both partners was not sufficient to pay the firm debts. Held, that the non-assenting partner may be adjudged a bankrupt. Yungbluth v. Slipper, 185 Fed. 773 (C. C. A., Ninth Circ.).

This case is opposed to the generally approved rule that partners in a bankrupt firm cannot be adjudicated bankrupts if they have not committed or been participants in committing an act of bankruptcy. See In re Meyer, 98 Fed. 976, 980. This rule is a logical result of the entity theory of partnership in bankruptcy. In re Hale, 107 Fed. 432. But the courts fail to apply the entity theory consistently, holding that upon adjudging a firm bankrupt, the court may draw to the administration the individual estates of the partners. Dickas v. Barnes, 140 Fed. 849; Francis v. McNeal, 186 Fed. 481. Although illogical, the principal case accomplishes this result in a practical way and simultaneously provides for the partner's discharge.

BANKRUPTCY - PROPERTY PASSING TO TRUSTEE-DATE TO WHICH TRUSTEE'S TITLE RELATES BACK. A bank, having on deposit moneys belonging to one against whom a petition in bankruptcy had been filed and having no actual notice of the filing, paid out money on checks delivered by the depositor to the payee previous to the filing of the petition. Held, that the bank may not be required, on summary order, to turn over to the trustee in bankruptcy the amount so paid out. Matter of Zotti, 26 Am. B. R. 234 (C. C. A., Second Circ.). See NOTES, p. 79.

BANKRUPTCY PROPERTY PASSING TO TRUSTEE LIENS WHICH ARE VOID AS TO CREDITORS. A bankrupt gave a chattel mortgage which by the state (Ohio) law was void as to judgment creditors of the mortgagor, though good inter partes. The mortgagee claims his lien on the mortgaged property, now in the trustee's hands. Held, that the trustee takes the property free from the mortgage lien, having the right of a judgment creditor under § 47a of the Bankruptcy Act as amended by the Act of June 25, 1910. In re Hammond, 26 Am. B. Rep. 336 (Dist. Ct. N. D. Ohio).

This construction of the amendment to § 47 a does away with the unfortunate rule of York Mfg. Co. v. Cassell, 201 U. S. 344. See 24 HARV. L. Rev. 620. Cf. In re Franklin Lumber Co., 26 Am. B. R. 37.

BANKRUPTCY · PROPERTY PASSING TO TRUSTEE - RIGHT OF ACTION FOR LIBEL. The plaintiff, in an action for a libel concerning his credit, which caused him pecuniary damage, became bankrupt. Held, that the right of action did not pass to the trustee in bankruptcy. Epstein v. Handverker, 116 Pac. 789 (Okl.).

For a discussion as to what rights of action in tort should pass to the trustee in bankruptcy, see 24 HARV. L. REV. 396. The principal case seems correct, as the right of action in it arises not from injury to property, but from injury to reputation; and it is only an indirect effect of the tortious act to diminish the bankrupt's estate.

BILLS AND NOTES - PURCHASERS FOR VALUE WITHOUT NOTICE - RIGHT OF MAKER TO FUNDS OF WRONGDOER HELD BY PLAINTIFF. The plaintiff, a holder in due course of a check wrongfully indorsed to him, had, at the time of bringing suit against the maker of the check, funds of the wrongdoer in its hands. Held, that the defendant cannot avail itself of these funds as a set-off. Amalgamated Sugar Co. v. United States National Bank of Portland, 187 Fed. 746 (C. C. A., Ninth Circ.).

For a discussion of the principles involved, see 24 HARV. L. Rev. 665.