even in a more fully developed locality, such a taking would be so clearly unwarranted and arbitrary as to be declared unconstitutional. The suggestion of the court in the principal case would seem, therefore, to be based on sound reason and a liberal conception of the legislative power.

THE ASSIGNMent of a ClaIM ALREADY PARTIALLY COLLECTED BY THE ASSIGNOR'S AGENT. Some interesting questions are raised by a recent decision in the New York Court of Appeals. Curtis v. Albee, 167 N. Y. 360. The plaintiff assigned to the defendant a claim against an insolvent as "a claim for an unpaid balance of $2000." Unknown to both parties, at the time of the assignment about $800 had been paid upon the claim by the insolvent's assignee to the attorney of the plaintiff. The defendant afterwards learning of this payment induced the attorney to turn over to him the money thus collected, and the plaintiff brought an action for a reformation of the contract of assignment and other equitable relief. In denying that the plaintiff was entitled to any relief against the defendant, the court took the position that the attorney was still indebted to the plaintiff, and the defendant apparently indebted to the attorney, but that the defendant owed nothing to the plaintiff directly.

The dictum that the transfer of a claim does not carry with it payments made without the knowledge of the assignor before the transfer is clearly sound. A contrary result, however, was effected by the construction of an instrument of assignment in an essentially similar case. Klock v. Buell, 56 Barb. (N. Y.) 398. Assuming that the assignment passed to the defendant no interest in the money wrongfully paid over to him by the attorney of the plaintiff, the decision that the plaintiff cannot recover it from him directly seems to be undesirably technical. The money, when paid to the attorney, was held by him in trust for the plaintiff. Frost v. M'Carger, 14 How. Pr. (N. Y.) 131. If he kept the money apart from his own funds until he paid it to the defendant, it is the simple case of trust funds paid to a volunteer with notice. If he wrongfully mingled the amount with his own funds, he stood in the position of a debtor to the plaintiff. Nevius v. Disborough, 13 N. J. L. 343. But upon his designating certain money as that belonging in equity to his principal there seems to be no good reason why the latter should not be permitted to claim it as trust funds, and follow it into the hands of a volunteer. Such in effect was the decision in Matter of Le Blanc, 75 N. Y. 598.

Although the decision in the principal case in denying the assignor a direct recovery from the assignee cannot be supported upon the reasoning advanced, the result seems equitable upon grounds apparently not presented in argument. The assignor of a claim impliedly warrants that it is an existing and valid claim for the amount specified. Gilchrist v. Hilliard, 53 Vt. 592. The measure of damages for the breach of this warranty is the difference in value of the claim as actually transferred and as represented. Bennett v. Buchan, 61 N. Y. 222. In the principal case the value of the plaintiff's claim against his debtor became fixed upon the latter's insolvency. The difference between what the defendant received upon the claim as actually transferred, and what he would have received upon the claim as described, is measured by the sum paid to the plaintiff's attorney before the assignment. A recovery of that amount by the plaintiff in this action would be followed by a recovery

of the same amount by the defendant in an action upon the implied warranty. Equity to avoid circuity of action should leave the parties in their present position. Dodd v. Wilson, 4 Del. Ch. 399. It will be remarked that the same conclusion follows in a case where the debtor was solvent at the date of the assignment, but in a case where his insolvency intervened between the payment and the assignment a different result would be reached.

CONSPIRACY TO INJURE IN BUSINESS. Few questions have given rise to more litigation than those concerning combinations of capital or labor. A recent case before the Supreme Court of Wisconsin squarely presents the issue: Can acts, which are lawful for an individual, become unlawful or actionable, when done by a confederacy? Hawarden v. Youghiogheny, etc., Co., 87 N. W. Rep. 472 (Wis.). Certain wholesale dealers in substantial control of the local coal supply and certain retail dealers agreed to trade exclusively with one another for the purpose, among others, of forcing out of the trade those retailers not in the combination. In pursuance of this agreement the defendant conspirators refused to sell to the plaintiff, whose business was thereby destroyed. On demurrer to the declaration the court decided there was a cause of action at common law.

There can be no doubt that each defendant singly had the legal right to refuse to sell to the plaintiff. Such discrimination could be exercised by an individual, although he had a practical monopoly. See Brewster v. Miller, 101 Ky. 368. The motive also is immaterial, for the right to discriminate is regarded as an absolute right, except in the cases of public servants such as carriers, telegraph companies, etc., under which category coal dealers do not fall. Opinions of the Justices, 155 Mass. 598. If an act is not tortious, when done by one it is said to follow logically that it cannot be tortious, when done by several, and on this reasoning, the decisions contra to the principal case are based. Hunt v. Simonds, 19 Mo. 583; Bohn Mfg. Co. v. Hollis, 54 Minn. 223 (semble).

But is it true that the concerted refusal to deal with a man is precisely the same act as the refusal of an independent individual? Andrews, J., in Leathem v. Craig declares, "Their commission [i. e. acts] by the concerted action of a number materially alters their character in this respect at least, that they thereby become more formidable, more oppressive, harder to resist, and therefore more generally dangerous; and this independent of motive." Leathem v. Craig, [1899] L. R. Ir. 2 Q. B. D. 667, 676; s. c. Quinn v. Leathem, [1901] A. C. 495. This distinction seems valid. Nor is the force of it destroyed by the fact that in some one particular instance an individual may have more power to injure than an associated number. It is not merely the addition of combination, but the alteration in the character of the acts done, which explains the liability of the defendants. Moreover, their agreement of necessity involves the inducement of each party to it by the others not to deal with the plaintiff. The right to influence another to the damage of a third person is, under the modern conception of the law of torts, unquestionably a qualified right the exercise of which, if exerted to injure a third person, demands justification. Plant v. Woods, 176 Mass. 492. See 8 HARV. L. REV. I. Though the cases are in undoubted conflict, there is authority as well as reason to qualify the general proposition, that what an indi

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vidual may lawfully do, several may combine to do. Gregory v. Duke of Brunswick, 6 M. & G. 953; see I EDDY, COMB., §§ 474, 501. This qualification does not mean that every confederacy which causes pecuniary loss must respond in damages to the injured party. Fair business competition is an universally recognized justification. Mogul Co. v. McGregor, [1892] A. C. 25. The line between "fair" and " fair" competition cannot be drawn rigidly, but it would seem that such facts as those in the principal case ought generally to amount to a justification. See Bowen v. Matheson, 14 Allen (Mass.) 499. The demurrer admitted that one purpose of the defendants was to injure the plaintiff. If that had been their sole purpose the combination would be unlawful. But in all "fair" competition the infliction of injury is contemplated and therefore intended, though as incidental to self-advancement. The decision is perhaps attributable to the prevalent feeling against monopolies as evidenced by Wisconsin legislation.

THE TITLE TO CERTIFICATES INDORSED IN Blank. It is well known that even a thief can give a bona fide purchaser a good title to money, bank bills or currency in any form. On the other hand a thief can never pass good title to stolen chattels. The reason for this distinction rests in the fact that expediency requires that the title to any medium of exchange should pass with possession. There is an intermediate class of instruments, including, for example, certificates of stock payable to bearer or indorsed in blank. These instruments are not negotiable, a mere thief cannot make a valid transfer of them, and yet, unlike chattels, one entrusted with their possession can pass a good title. Jarvis v. Rogers, 15 Mass. 389; Rumball v. Metropolitan Bank, 2 Q. B. D. 194. The question as to what is a sufficient entrusting has arisen in rather a curious way lately in Massachusetts. The owner of two certificates of indebtedness indorsed in blank left them in a sealed envelope with brokers for safe keeping. The brokers, knowing of the contents, subsequently tore open the envelope, and pledged the certificates for their own debts. They were sold under this pledge to the defendant, who bought without notice, and who was then sued by the original owner in trover. The court was ready to apply the rule that one entrusted with possession could pass title if it had been found that such was the custom, for the rule rests on the theory that one who has given all the indicia of title to another cannot assert title against a buyer in good faith from the latter. But the court held that although there was evidence of entrusting the envelope there was no evidence of entrusting the certificates. Scollans v. Rollins, 60 N. E. Rep. 983 (Mass.). In support of this finding is cited the ancient doctrine of larceny by breaking bulk. The doctrine is that if a package of goods is delivered to a bailee, and he separates them, and disposes of them he commits larceny. Commonwealth v. Brown, 4 Mass. 580. Of course the difficulty in such a case is to find the taking of possession against the will of the owner, which is a necessary element of larceny. The doctrine is ordinarily explained by means of the fiction that the bailee in breaking bulk ends the bailment and by the same act takes possession wrongfully. 2 East, P. C., 695; 3 GREENL., Ev., § 162; Commonwealth v. James, 1 Pick. (Mass.) 375. It is true, under this view of the doctrine, that by a fiction the bailee subsequently lost possession, and

wrongfully retook it. His possession at the time of sale had not beer entrusted so that he could not pass title to the defendant. Clearly, however, this fiction in no way renders the plaintiff more deserving, and it should not alter the actual fact that the brokers never lost possession. By the plaintiff's delivery the brokers were given that real possession which ultimately enabled them to make the sale. Under these circumstances, this fiction of the criminal law established for a wholly different purpose, should not be invoked to the prejudice of a bona fide purchaser.

The court rests its decision, however, upon another theory of the doctrine of breaking bulk. One judge alone in the case in which that doctrine originated, and a Massachusetts judge by way of dictum, explain the rule on the ground that the bailee never is given possession of the contents of the package. Carrier's Case, Y. B. 13 Edw. IV. 9, pl. 5, per Choke, J., Belknap v. National Bank of N. A., 100 Mass. 376, per Chapman, C. J. As has been indicated, this view is opposed to the great weight of authority. It does not accord with the actual facts, and is at most a fiction, like the other view of the doctrine. Consequently as a basis for a decision it is unsatisfactory.

THE LIABILITY OF BUCKET SHOPS AS CONSTRUCTIVE TRUSTEES. The rule is well recognized that where a defendant aids in a breach of trust while acting in good faith and with the trustee's authority, his liability to the cestui is limited to making restitution for the benefit actually received. Florence, etc., Co. v. Zeigler, 58 Ala. 221; Bonesteel v. Bonesteel, 30 Wis. 516. A recent Court of Appeals decision involves the application of this doctrine to a novel set of facts. Bendinger v. Central, etc., Exchange, 109 Fed. Rep. 926. Without notice of the trust a bucket shop received misappropriated trust funds as margins. After the payment of profits to the trustee, the whole was finally "wiped out" when the market fell. In a suit against the bucket shop the cestui was allowed to recover the total amount advanced without deducting the profits returned to the trustee. The ratio decidendi is that as the transactions were outlawed by a statute, which also allowed the recovery of money lost in gambling, the defendant became a trustee de son tort from the moment of receiving the original funds. Had the transactions been legitimate, that is, had the margins been lost through a depreciation in investments actually purchased, the defendant would have been protected, as he would have retained no part of the trust res. Dunlap v. Limes, 49 Ia. 177. On this reasoning it might seem that the defendant in the principal case ought not to be responsible for the money returned to the trustee. But the defendant, while purporting to pay profits, was as an actual fact merely paying a lost bet. On somewhat similar facts an English case holds that when the defendant makes fictitious entries he cannot later plead that they are untrue. Rapp v. Latham, 2 B. & Ald. 795. It might seem therefore that the defendant here cannot maintain that the repayment to the trustee "as profits" is a part of the principal. This reasoning is not adopted in the principal case, however, the language of which denotes an intention to punish the defendant merely as a law breaker. The result of the position taken by the court makes a party with no knowledge of the trust absolutely liable to the beneficiary from the moment

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he receives the funds; and to be consistent the court would have to go so far as to hold that even if the defendant had actually and in good faith repaid the principal to the trustee he would still be liable to the cestui. This is introducing a new element into the law of constructive trusts, which has heretofore limited the liability of a constructive trustee acting in good faith to the amount of benefits actually received. Florence, etc., Co. v. Zeigler, supra. Furthermore the contention is unsound that an act that is criminal and void cannot be said to be founded upon good faith." The term good faith as used in this class of cases means ignorance of the beneficiary's equity, and no amount of criminality on the defendant's part can transform this ignorance into fraudulent knowledge. Although the reasoning of the court is careless, the result may well be beneficial in discouraging bucket shops. The actual decision however may be supported either on the doctrine of Rapp v. Latham, supra, or possibly by construing each repayment of so-called "profits as a closing of one transaction, and a reinvestment of the original sum advanced, and the latter would therefore represent the actual benefit to the defendant. The court appealed from gave judgment in favor of the plaintiff for the amount of the margins less the amount returned to the trustee. On the whole, this decision seems more equitable than that of the upper court, and more in accord with the general rule in regard to constructive trustees.

COMPULSORY PILOTAGE. It is by no means settled what effect statutes requiring the employment of licensed pilots have upon the liability of the owner for the negligence of such pilots. In a recent case where the defendant's vessel, while under the command of a New York licensed pilot and wholly through his fault collided with a pier owned by the plaintiff, the court held that the defendant was not liable in an action at common law, upon the ground that he was not personally at fault and that, as the employment of the pilot was compelled by the New York statute, the defendant could not be made responsible as principal. Homer Ramsdell Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406. This result in an action at law seems obviously correct. Yet the injured party may also have alternative remedies in admiralty, and since his rights are then governed by the principles of maritime law, it is by no means necessary that the same result should be reached. A libel in rem is based upon the distinct conception that the right to redress is against the ship itself; in other words that the ship is the offending person regardless of the fact under whose control it was at the time of the collision. As culpability may thus be fixed upon the ship it has consequently been held in the United States that a libel in rem will be sustained under such circumstances. The China, 7 Wall. 53. In England, after many conflicting decisions the opposite conclusion has been reached. The Halley, L. R. 2 P. C. 193. Although perhaps a trifle harsh the American rule is a logical outcome of the principles of maritime law; it is furthermore supported by the law of continental Europe. 5 LYON-CAEN ET RENAULT, DROIT COMMERCIAL, §§ 190, 190 bis. In the remaining alternative open to one injured under such circumstances -a libel in personam against the owner- the peculiar doctrine which allows recovery where the ship is libelled in rem can have no application, and the same result should be reached as in an action at law. See CURTIS, MERCHANT SEAMEN, 196.