claim through his assignor. Each assignee then has exactly the same right, viz., a claim against the trustee through the cestui, and one is prior. The English court says that the priority is divested by a failure to give notice. This deprivation or priority must arise from the failure to perform some duty. The assignee owes no duty to the assignor, but, on the contrary, may hold his assignor to an obligation; nor does he owe any duty to the trustee, for the latter is protected if he pays the cestui without notice of the assignment. The only possible duty, therefore, is a duty to give notice, in order that future purchasers may not part with their money for a valueless claim. The soundness of this view depends on the somewhat questionable hypothesis that the assignee of an equitable interest is bound to anticipate and provide against the rascality of his assignor; and certainly no severe criticism can be passed on those courts which do not adopt the rule (e. g., New York, Muir v. Schenck, 3 Hill, 228, and Massachusetts, Putnam v. Story, 132 Mass. 205). But the English courts in Foster v. Blackstone, 1 My. & K., affirmed in Foster v. Cockerell, 3 Cl. & F. 456, extended their principle beyond the limits of this debatable ground into the territory of judicial legislation, and held that the assignee first giving notice obtained the priority, although he had made no inquiry as to previous assignments. However desirable the result, - and that it is desirable appears from its similarity to our registry laws, - the decision must be regarded as unjustifiable from the judicial point of view.

Under these circumstances, the opinion of Lord Macnaghten in the recent case of Ward v. Duncombe, Appeal Cases [1893], 369, is of the utmost value. The case itself simply amounted to a refusal to extend the rule of Dearle v. Hall unnecessarily; but Lord Macnaghten's discussion of the subject is the most valuable to be found in the books.

"It

He shows that the reasoning in defence of the rule is vicious. has been said that notice is necessary in order to 'perfect' the title of the assignee, in order to 'complete' his title. Notice does not render the title perfect. Notice was not even a step in the title until it was made so by the decision in Foster v. Cockerell. Apart from the rule in Dearle v. Hall, an assignee of an equitable interest from a person capable of disposing of it has a perfect equitable title, though the title is no doubt subject to the infirmity which attaches to all equitable titles. And that infirmity is not and cannot be wholly cured or removed by notice to the trustees."

Further, he shows that notice does not "convert” the trustee of the fund into a trustee for the person who gives the notice. Notice fixes a personal liability upon the trustee, but he is just as much a trustee for the persons rightfully entitled before as after notice, though before notice he would be justified in paying the fund to those who appeared to be the true owners. Lord Macnaghten admits that Dearle v. Hall has the binding force of law, but concludes that " it has on the whole produced at least as much injustice as it has prevented."

The American courts do not in general adopt the rule of Dearle v. Hall. See Perry on Trusts, vol. i., 2d ed., p. 527, note 1.

RECENT CASES.

AGENCY - DEL CREDERE FACTOR - CLAIM AGAINST ESTATE OF INSOLVENT PRINCIPAL. - A factor under a del credere commission was by his contract to make monthly advances to his principal. The principal became insolvent, and the question arose whether the factor could prove for his full claim against the assignee and look to the property in his hands for anything still due. But it was held, that he must exhaust that property first, and only prove against the assignee for the balance. Balderston v. Rubber Co., 27 Atl. Rep. 507 (R. I.).

The advances are treated substantially as prepayment to the principal. The factor, therefore, had no claim until he had exhausted the property in his hands. The case follows Gihon v. Stanton, 9 N. Y. 476, and seems to adopt a sensible construction of the contract of a del credere factor who makes advances. As the court point out, the term "advance" is meaningless if the party who makes an advance can immediately turn round and sue to recover it back. Upham v. Lefavour, 11 Met. 174, and Dolan v. Thompson, 126 Mass. 183, are treated in the principal case as opposed to the doctrine there expressed. Probably they go no farther than to say an advance is a loan for a reasonable time, and after the expiration of such a time the factor can sue for the loan without first exhausting the property in his hands. They are, therefore, opposed to the opinion expressed in the principal case as to the precise construction of the contract, but would not necessarily involve a different result upon the facts.

BILLS AND NOTES CONSTRUCTIVE NOTICE. The directors of a railroad corporation authorized one Frost, its president, to purchase flat cars and give notes of the corporation for that purpose. In pursuance of this vote notes were made in the name of the corporation, and signed by Frost as president. For safety of the corporation in case of loss, instead of making the notes payable in blank, they were made payable to the order of Bruen, Frost's private secretary, who was to indorse them when Frost got ready to use them. Subsequently these notes, having received the blank indorsements of Bruen and of Frost & Son, a firm of which said Frost was a member, were pledged by Frost, together with bonds belonging to the firm, as collateral security for a loan made by the plaintiff to the firm. Frost appropriated the loan to his own use. Later the plaintiff became entitled to the notes outright, and brought action upon them against the corporation. Held, that as the plaintiff knew that Frost was president of the corporation, he was bound to inquire how the president came to use the notes for his individual benefit, and therefore the plaintiff acted at his peril and cannot recover. Cheever v. Pittsburgh S. & L. E. Ry. Co., 25 N. Y. Supp. 449.

This decision cannot be supported. There was no evidence of any actual notice, and it is impossible to take the step which the court take so easily, and say with them that the plaintiff had constructive notice of fraud, and was put upon his inquiry. The court does not seem to have appreciated fully the transaction between Frost and the plaintiff. It was simply this: Frost, as a member of the firm of Frost & Son, went to the plaintiff to borrow money for the firm, just as any other member of the firm might have done. He obtained the loan to the firm, and gave the plaintiff as security what appeared to be firm property; namely, bonds, and the notes in issue, which, from aught that appeared on their faces, were the property of the firm. We have, then, a case where notes, apparently firm property, are pledged as such by a member of the firm to secure a loan to the firm; and there is no fact shown which could give rise to the application of the principle of constructive notice. See Freeman's National Bank v. Savery, 127 Mass. 78.

PAYMENT. - Plaintiff sent

BILLS AND NOTES - DRAFT SENT FOR COLLECTION for collection a demand draft on defendant to a bank with which defendant had an account. Defendant was accustomed in such cases to write his acceptance upon the draft, and to pass it back to the bank, where it was treated by defendant and the bank in all respects as a check. According to such custom, defendant wrote his acceptance on the draft in suit, passed it back to the bank, and charged himself with the amount in his pass-book; but the bank failed before remitting to the plaintiff. Held, that this transaction did not amount to payment of the draft. State Bank of Midland v. Byrne, 56 N. W. 355 (Mich.).

In view of the fact that the collecting bank must be regarded as the plaintiff's agent, it is hard to see how this transaction can be properly distinguished from the defendant's paying the amount in money into the bank, which would surely have been held to be payment to the plaintiff. See Welge v. Batty, 11 Ill. App. 461.

CONSTITUTIONAL LAW - JUDGMENT OF SISTER STATE - EXECUTION. - A bill in equity is brought, asking specific performance of an order directing the payment of alimony, and the method thereof, made upon a judgment in a suit for divorce in the State of New York. Held, that the bill will not be sustained. The first section of the fourth article of the Constitution of the United States, directing that full faith and credit be given to the judgments of a sister State, does not extend to the execution of such a judgment. For this purpose a new judgment must be secured in the State in which an execution is sought, and full faith and credit shall be given to the original judgment as evidence of the matters involved. An execution of the order made upon the original judgment, as regards property without the jurisdiction of the court in which such judgment was obtained, is possible only so long as the person remains within the jurisdiction of that court. Bullard v. Bullard, 27 Atl. Rep. 435 (N. J.).

The case follows the weight of authority.

CONTEMPT OF COURT - PUNISHMENT. - Held, where a petition filed in a court contains scandalous matter reflecting on the integrity of the judge and the master in chancery of the court, it may be stricken from the files without notice, though it sets up a good cause of action. Pleasants, J., dissenting. Herndon v. Campbell, 23 S. W. Rep. 558 (Texas).

The result is contrary to Hovey v. Elliott, 21 N. Y. Sup. 108, and to the spirit of McVeigh v. United States, 11 Wall. 259, p. 267. It is submitted that in the absence of a statute in Texas giving the court power to take such action, the New York decision is the better. It certainly seems contrary to the first principles of justice that the plaintiff here should have his petition stricken from the files without any notice whatever. Every litigant is supposed to have the right of a hearing, at least.

CONTRACTS – CONSIDERATION. -Plaintiff had agreed to furnish wood to defendant at a certain price per cord, but was unable to carry out the agreement on account of the high wages that his workmen demanded. He wrote defendant that he must ask for a better price, and defendant agreed to pay more per cord. Held, there was a consideration for the second agreement. Foley v. Storrie, 23 S. W. Rep. 442 (Texas).

The theory is that the first contract is waived by the making of this second agreement. And, of course, this being true, the mutual promises furnish sufficient consideration for the latter. Hare on Contracts, p. 220; 9 Pick. 298, 305; 9 Cush. 135; 6 Ex. 839; 69 Ill. 403; 36 N. Y. 388, 392; 128 Mass. 116; 47 Mich. 489; 28 Vt. 264. But the better view seems to be that plaintiff was already bound by the first contract; that defendant never agreed to a waiver of it, and consequently that there is no consideration. Wald's Pollock on Contract, p. 179, note v; 6 Ohio St. 1; 52 Ia. 478; 69 Pa. St. 216; 91 N. Y. 392.

CORPORATIONS - LIBEL. In an action against a corporation for libel it was held, that evidence of the defendant's wealth was not admissible. Randall v. Evening News Association, 56 N. W. Rep. 361 (Mich.).

The courts of Michigan allow this evidence in an action against an individual for libel; but it is considered a dangerous rule, to be used with great care. The court seems right, therefore, in refusing to extend the doctrine to the case of a corporation; but it is submitted that the argument that this sort of evidence is not so material in the present case as in that of an action against an individual is given too great weight in the decision.

CORPORATIONS - PUBLIC DUTIES - ULTRA VIRES LEASE OF FRANCHISE. — А corporation, having a franchise to lay its gas-pipes in the public streets, leased its rights and privileges to another gas company without the consent of the Legislature. The contract was partly carried into effect. Held, that no action lay for a breach of covenant in the lease; that the lease was ultra vires and void, as the company owed a duty to the public, and the only remedy for the plaintiff corporation would be to disaffirm the lease, and sue as on a quantum meruit for the amount which the defendant was actually benefited. Brunswick Co. v. Gas Co., 27 Atl. Rep. 525 (Maine).

This is the general rule, namely, that the Legislature has control over a gas company, and that it cannot escape its duty to the public by leasing its franchise. Even admitting this to be so, many cases allow a recovery on the contract when it has been partly performed; but the opposite view, as adopted in this case, is certainly more logical. The authorities upon this subject are in hopeless conflict. See 2 Beach Corp. § 423.

CRIMINAL LAW CONSPIRACY RESTRAINT OF TRADE. - Retail coal dealers formed an association to fix prices of coal at Lockport. According to the by-laws, a vote of the association determined prices, subject to the limitation that they must be reasonable, and never more than one dollar above the wholesale rate. The prices actually adopted were reasonable. Held, that the members of the association were guilty of a conspiracy under a statute which forbids two or more persons to conspire "to commit any act injurious to trade or commerce." People v. Sheldon, 34 N. E. Rep. 785 (N. Y.).

From the report of the principal case in the court below, 66 Hun, 590, it appears the association gave notice to wholesale dealers to sell to nobody in Lockport not a member. The statute under which the defendants were indicted is a very old one in New York, said to be declaratory of the common law. People v. Fisher, 14 Wend. at p. 17. When the case appeared in the court below, it was suggested, therefore, in a note in HARVARD LAW REVIEW, vii. 52, that the conspiracy was in the attempt to prevent the wholesale dealers from selling to anybody outside the association, and not in the mere contract to fix prices. Such an agreement, though unenforceable, is not at common law a crime. Mogul S. S. Co. v. McGregor (1892), App. Cas., at pp. 39, 46, 47. In the Court of Appeals, however, Andrews, C. J., adopts a construction of the statute which seems to make every contract in restraint of trade a crime, and does nor even mention the attempt of the association to "boycott" all who are not members. Such a construction of the statute is entirely possible, though there are strong reasons of expediency against it. Wharton Crim. Law, 9th ed. §§ 1366-69.

EVIDENCE BURGLARY EVIDENCE OF OTHER BURGLARIES. - In a trial for burglary, evidence that other burglaries were committed on the same night was admitted, in connection with proof that footsteps found about the houses entered corresponded with the shoes worn by defendant. Held, that the evidence was properly admitted, as tending to show a general system under which the crime in question was committed. Frazer v. State, 34 N. E. Rep. 317 (Ind.).

Although questions of this nature are largely within the discretion of the trial judge, still it would seem that this was a case in which the upper court might well have interfered. The principle relied on is perfectly sound. Though in general in a trial for a crime, evidence that defendant committed another crime is inadmissible, as proving nothing but defendant's wickedness, yet such evidence is undoubtedly admissible where it tends to show the existence of a general plan, pursuant to which the crime in question was committed. Commonwealth v. Robinson, 146 Mass. 571. But it is submitted that the principle was misapplied in this case: The evidence submitted apparently shows not such a general plan, but rather several distinct burglaries, supposed to have been committed by the defendant, which have no logical bearing upon the crime for which he was being tried.

EVIDENCE - CONJECTURAL AND MISLEADING. - Defendant was a packing company, and plaintiff, as its employee, was engaged in piling barrels. A barrel in a lower row of the pile commenced to leak, and, by order of defendant's foreman, the head of the barrel was knocked out and its contents removed. Subsequently, some barrels on the top of the pile fell off and struck plaintiff, breaking his leg. Plaintiff claimed that the injury was caused by negligence of defendant in allowing the empty barrel to remain in such a position. Defendant offered to prove by its foreman that experiments with similar piles of barrels had been made, and that a barrel in the same relative position as the empty barrel in this case had been removed without causing the pile to fall. This evidence was excluded at the trial. Held, no error. Libby et al. v. Scherman, 34 N. E. Rep. 801 (111.).

The court say that such evidence is conjectural merely, and would involve a multitude of collateral issues. Such questions seem to lie very largely in the discretion of the trial judges, and their rulings are not often reversed by the courts, unless a strong case is made out. This is, therefore, a question on which courts may well differ. If it could be shown that the experiments were made under substantially the same conditions as existed in the case in question, it would seem that the evidence might be admitted as tending in some degree to disprove defendant's negligence, provided it was submitted to the jury with careful instruction as to its weight and bearing. Evidence of a similar kind was admitted in the following cases: L. R. 1 C. P. 300; 107 U. S. 519; 52 N. H. 401. In the following it was excluded: 3 Allen, 410; 33 N. J. Law, 260.

EVIDENCE - STATUTORY PRESUMPTIONS. - A statute making it a misdemeanor to use or traffic in certain kinds of bottles, unless they have been sold by the original owner, or his written consent to their use has been obtained, declares "the having, by any junk-dealer, possession of any such bottles without such written consent," " presumptive evidence" of unlawful traffic in them. Held, that such a provision does not restrain the jury from acquitting the prisoner even though there be no evidence beyond the fact on which the presumption is declared to rest, but, on the contrary, they must still acquit if they are not satisfied beyond a reasonable doubt of the guilt of the accused; that the fact on which the presumption was to rest has a fair relation to and a natural connection with the main fact; and that, therefore, the Legislature did not exceed its powers in enacting that the presumption should exist. People v. Cannon, 34 N. E. Rep. 759 (Ν. Υ.).

This decision is noteworthy for bringing out more clearly than previous decisions that these statutory presumptions leave room for the jury to have reasonable doubts as to the prisoner's guilt, and allow the jury to acquit him, though no evidence to rebut the presumption be offered. Justice Earl's opinion would have been still more satisfactory if his language had been such as to leave clear beyond a doubt that the court considered it no part of the legitimate effect of these statutes to regulate in any way the jury in passing on the facts. It is submitted that such regulation is no part of their legitimate effect, and that their proper effect is simply to require the trial judge to leave a case to the jury where the designated fact is all that is given in evidence, when without the statute he might have directed an acquittal on the ground of lack of evidence, and, as a corollary, restrain him from setting aside a verdict as against evidence when such fact is the only evidence in the case.

REAL PROPERTY - DEED - BOUNDARIES. - Land was deeded by plaintiff's ancestors to defendant's grantors, described as beginning on north side of Bloomingdale Road, thence by various courses to place of beginning. The road was closed legally, and plaintiff now seeks to recover one-half of it by an action of ejectment. Defendant claims it by the deed. Held, though the grantor may have retained the fee, it was subject to a private easement, impliedly granted, of which the grantor, his heirs, and assigns, cannot, after the highway is closed, deprive the grantee or his successors in title. Holloway v. Southmayd, 34 N. E. Rep. 1047 (N. Y.).

It

This is the view of the majority of the court, Earl, Finch, and O'Brien, JJ., dissenting. Maynard, J., adopts what is submitted to be the most consistent view, - that the fee passed by the deed to the centre of the street. Gray, J., who delivers the opinion of the majority, does not meet this question squarely, but says, whatever the law may be on that subject, the implied grant of an easement is enough to decide the case. may be doubted whether, if a man expressly excludes the highway in his deed (as must be assumed here to support this as an easement), he impliedly grants an easement. The two things seem inconsistent. The simplest and soundest view is that the grantee took to the centre of the road. The deed read "beginning at north side along the road." These words have been held insufficient to rebut the ordinary presumption that the grant is to the middle of the road. 33 Pa. 124; 39 N. J. L. 469; contra, 2 R. I. 508; 38 Mich. 62; 141 Mass. 51. See also Washburn on Real Property, vol. iii. pp. 423 et seq.

REAL PROPERTY - LANDLORD AND TENANT - FIXTURES - CHATTEL MORTGAGE. - A lease of mining land provided that whatever machinery the lessees might put in should form part of the realty, but that upon the termination of the lease the lessees should, on paying all rent and taxes, be entitled to remove such machinery. Held, that this provision included certain machinery on the land at the time the lease was executed, at that time purchased by the lessees from the lessor for unpaid rent, superior to the claims of the defendant under a chattel mortgage given by the lessees at the time the machinery was purchased from the lessor. Pendill et al. v. Maas et al., 56 N. W. Rep. 597 (Mich.).

This somewhat forced construction of the lease raises the question whether the purchaser of property of the nature of fixtures may prevent its becoming part of the realty on being affixed thereto, as against the owner of the fee, - either a lessor or a subsequent vendee or mortgagee, - by placing upon it, at the time of purchase, a chattel mortgage; and the decision, that he may not, follows the same principle in Clary v. Owen, 15 Gray, 522 (Mass.). The extreme view opposed is that of Ford v. Cobb, 20 N. Y. 344, where the holder of a chattel mortgage on fixtures is allowed to take them, as against a subsequent mortgagee of the realty who took his mortgage on the faith of these fixtures. A more satisfactory decision is reached in Davenport v. Shants, 43 Vt. 546, where the holder of a chattel mortgage is allowed to take the fixtures except where the vendor or mortgagee of the realty has relied upon them, as part of the realty, in buying or accepting the mortgage.

REAL PROPERTY - NATURAL GAS - INJUNCTION. - Plaintiffs induced defendants to drill a gas-well in their land adjoining plaintiffs', expecting to buy it when completed. There was a disagreement about the price, and defendants allowed it to burn without utilizing it in any way. This tended to drain the sand-rock and reduce the flow in the wells on plaintiffs' land. Plaintiffs went on defendants' land and closed the well. Defendants now threaten to remove the cap, and an injunction to restrain them is sought. Held, no injunction will be granted. Defendants had the right to use the gas