case, that the pledgee is under no duty to sue. Black River Bank v. Page, 44 N. Y. 453; Rice v. Benedict, 19 Mich. 132; Smith v. Felton, 85 Ind. 223. But see Wakeman v. Gowdy, supra. This is especially true where the pledgor makes no tender covering the expense of litigation. Wells & Dewing v. Wells & Scriber, 53 Vt. 1. See Culver v. Wilkinson, 145 U. S. 205, 213. Although the pledgee's assent and subsequent failure to foreclose might constitute such negligence as to render him liable, yet if the pledgor had notice of this inaction and an opportunity to protect himself, the pledgee would not be liable. See City Savings Bank v. Hopson, 53 Conn. 453, 457.

QUASI-CONTRACT-RECOVERY OF MONEY PAID UNDER MISTAKE OF FACTPAYMENT BY MISTAKE ON A POST-DATED CHECK. A bank paid the payee of a post-dated check, not noticing the future date. After payment, but before the date of the check, the drawer ordered payment stopped. The bank sought to recover the amount from the payee. Held, defendant's ignorance that the bank paid under a mistake is not a sufficient defense. Second National Bank of Reading v. Zable, 66 Pitts. L. J. 774.

Generally, one who pays another money under a mistake of fact may recover. Hummel v. Flores, 39 S. W. 309 (Texas); United States v. Phillips, 21 D. C. 309. The purpose of allowing such a quasi-contractual action is to prevent the unjust enrichment of the defendant. Moses v. McFerlan, 2 Burr. 1005, 1012. There is no recovery, therefore, in cases where the plaintiff, though under a duty to pay, paid under a mistake as to the nature of his obligation or legal liability. Johnson v. Hernig, 53 Pa. Super. Ct. 179; Buel v. Boughton, 2 Den. (N. Y.) 91; Morrison v. Payton, 31 Ky. L. Rep. 992, 104 S. W. 685. And recovery is not allowed when the defendant has with honesty so changed his position that if the plaintiff recovered, he could not be restored to his former status. Bend v. Hoyt, 13 Pet. (U. S.) 263; Behring v. Somerville, 63 N. J. L. 568, 44 Atl. 641. From the foregoing it would seem that in the principal case the bank should recover. The law, however, for commercial security treats banks more strictly, and in the absence of fraud, denies them recovery for money paid the holders of checks under mistake as to the sufficiency of the funds of the drawers or their solvency. National Exchange Bank v. Ginn, 114 Md. 181, 78 Atl. 1026; American National Bank v. Miller, 185 Fed. 338. The present case seems to relax the strict rules.

RAILROADS STATE REGULATION - UNLAWFUL INTERFERENCE WITH INTERSTATE COMMERCE. - A Missouri statute prohibits railroad corporations from issuing mortgage bonds without authority from the Public Service Commission, imposes heavy penalties for violation of the statute and purports to invalidate bonds so issued. (1913, Mo. Laws, 592, 593, 600.) The commission is required to charge a fee proportionate to the value of the authorized issue. (Ibid., 567.) The plaintiff company is a Utah corporation engaged in interstate transportation, a small part of its line extending into Missouri. The company applied to the Missouri Public Service Commission for a certificate authorizing it to issue $31,848,900 worth of bonds secured by a mortgage on its entire interstate line. The commission granted the authority, charging a fee of $10,962.25. The company accepted the grant under protest, alleging that the fee was an unconstitutional interference with interstate commerce. The Supreme Court of Missouri held that the company by accepting the benefits was estopped to assert the invalidity of the fee. (In a subsequent case the Missouri court held the statute inapplicable to foreign corporations. Public Service Commission v. Union Pac. R. R. Co., 271 Mo. 258.) On appeal to the United States Supreme Court, held, the charge was an unlawful interference with interstate commerce, the company not being estopped to assert its illegality, since the payment was under duress. Union

Pac. R. R. Co. v. Public Service Commission, U. S. Supreme Court, October Term, 1918, No. 65.

A corporation, in accepting the benefits permitted by statute, estops itself from contesting the validity of the statute. Minneapolis & St. L. Ry. Co. v. Gowrie & N. W. Ry. Co., 123 Iowa, 543, 99 N. W. 181; Commonwealth v. Southern Pac. Co., 150 Ky. 97, 149 S. W. 1105. If, however, accepting the benefits is not a voluntary act, but is procured by duress, no estoppel is created. See Cicotte v. Wayne, 59 Mich. 509, 513, 26 Ń. W. 686, 687; BIGELOW, ESTOPPEL, 6 ed., 646. In the principal case, it appears that the payment of the fee in return for the certificate was an act under duress. The issuance of the mortgage bonds was necessary to reimburse the railroad company for expenditures upon its property. Without the certificate, the bonds would be not only unmarketable but, if the statute were held applicable, would be absolutely void, and the corporation would be subject to heavy penalties. Scottish Union & National Ins. Co. v. Herriott, 109 Iowa 606, 80 N. W. 665; Swift v. United States, 111 U. S. 22. It is true the Missouri court later held the statute inapplicable, but the corporation was not bound to take the risk of the court deciding otherwise. Atchison, T. & S. Fe Ry. Co. v. O'Connor, 223 U. S. 280. Accordingly, the jurisdiction of the United States Supreme Court was not excluded on the ground that the company waived its federal rights. Cresswill v. Grand Lodge, 225 U. S. 246. Since the charge for the certificate was fixed in proportion to the value of the bonds issued, the same being secured by railroad property most of which was in states other than Missouri, the burden on the railroad was apparently so heavy as to constitute an illegal interference with interstate commerce. Cf. Western Union Telegraph Co. v. Kansas, 216 U. S. 1; International Paper Co. v. Massachusetts, 246 U. S. 135. See JUDSON, INTERSTATE COMMERCE, 3 ed., §§ 21, 22, 39.

SEAMEN SEAMEN'S ACT OF 1915DEDUCTIONS IN AMERICAN PORT OF ADVANCES MADE TO FOREIGN SEAMEN BY A FOREIGN VESSEL IN FOREIGN PORT. The Seamen's Act (38 STAT. AT L. 1165) provides that "every seaman of a vessel of the United States shall be entitled to receive on demand from the master of the vessel to which he belongs a one-half part of the wages which he shall have then earned at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended, and all stipulations in the contract to the contrary shall be void. Any failure on the part of the master to comply with this demand shall release the seaman from his contract, and he shall be entitled to full payment of the wages earned. . . . This section shall apply to seamen of foreign vessels while in the harbors of the United States, and the courts of the United States shall be open to such seamen for its enforcement." A British vessel in a British port made advances to the seamen, a lawful and customary practice by the law of England. On arriving in an American port the seamen demanded half the wages earned. The master deducted the advances made in Liverpool, and the seamen deserted and libeled the ship. Held, the libellants cannot recover. The Talus, U. S. Supreme Court, October Term, 1918, No. 392.

It is well established that advances made to seamen by any vessel, American or foreign, in any port of the United States are within the statute and illegal. The Eudora, 190 U. S. 169; The Kestor, 110 Fed. 432. See 15 HARV. L. REV. 411. The cases are in conflict as to advances made in a foreign port by an American or foreign vessel where by the law of such foreign country advances are allowed. The Windbrush, 250 Fed. 180; The Imberhorne, 240 Fed. 830; The Ixion, 237 Fed. 142; The Belgier, 246 Fed. 966. See 31 HARV. L. REV. 1169. The reasons for allowing such advances to be deducted on reaching an American port are that the contract is good by the law of the place where made, that Congress had no intention of rendering such contract void or of

imposing a criminal liability thereon, if such were possible. However, such construction, it is submitted, does violence to the English language. The statute states expressly that it is applicable to foreign vessels in American ports. The violation is not the making of a contract in a foreign country, but in deducting such advances in an American port and in refusing to pay one-half of the wages then earned. Though the result reached in the principal case is a desirable one from an international point of view, the real remedy would seem to be with the legislature and not the judiciary.

SHIPPING FREIGHT - WHEN RIGHT TO FREIGHT BEGINS. The claimant, a shipowner, contracted to carry a cargo of paper for the libellant from New York to Bordeaux. The bill of lading provided that restraints of princes and rulers were to be excepted and "freight for the said goods to be prepaid in full without discount retained and irrevocably, ship and/or cargo lost or not lost." Before the ship was ready to sail, an embargo was placed upon all vessels whose voyages would bring them within the submarine zone, and clearance was consequently refused to the claimant's ship. The cargo was subsequently discharged and the shipowners refused to return the prepaid freight. Held, that the shipowner may retain freight though the ship had not broken ground. The Gracie D. Chambers, 253 Fed. 182 (Circ. Ct. App.).

At common law, no freight is due until the cargo has been delivered at the port of destination. Osgood v. Growing, 2 Camp. 466; Post v. Robertson, 1 Johns. (N. Y.) 24. As the carrier's contract is entire, it follows, then, that he could not recover for services rendered prior to the ship's breaking ground. Curling v. Long, 1 B. & P. 634; The Tornado, 108 U. S. 342. By the law maritime the result would be the same, since the right to freight begins only upon inception of the voyage. Curling v. Long, supra. See MACLACHLAN, MERCHANT SHIPPING, 5 ed., 546. In England, however, if the contract provides that freight be prepaid, it is not recoverable whether earned or not. De Silvale

v. Kendall, 4 M. & S. 37; Allison v. Bristol Marine Ins. Co. (1876), 1 A. C. 209. In such a case, therefore, where the cargo is destroyed before the ship breaks ground, but after the time fixed for prepayment of freight, the owner may retain the sums advanced. Coker v. Limerick S. S. Co., 34 L. T. R. 18. In the United States the common law applies alike to prepaid freight, and it must be returned when there has been no full performance. Watson v. Duykinck, 3 Johns. (N. Y.) 335; Benner v. Equitable Ins. Co., 6 Allen (Mass.) 222. See I PARSONS, SHIPPING AND ADMIRALTY, 210. But a specific contract similar to the one in the principal case clearly suspends the common-law rule and produces the same effect as a provision for prepaid freight under the English law. On the basis of the English decision and as a matter of pure construction, therefore, the principal case seems correctly decided. The dissenting opinion prompted by a desire to avoid a harsh result cannot, however, be supported in view of the clear terms of the contract.

STATUTE OF FRAUDS — INTEREST IN LANDS - VALIDITY OF AN ORAL AGREEMENT TO PAY FOR IMPROVEMENTS TO LAND. - By an oral agreement defendant leased his premises to plaintiff, and promised to allow plaintiff to remove all improvements or to compensate him for their value. After plaintiff had made certain improvements, including the planting of an orchard, defendant terminated the lease and took possession. The plaintiff brings this action on the oral agreement for the value of the improvements. Held, that plaintiff could recover on equitable principles as well as on the oral agreement. Fredell v. Ormand Mining Co., 97 S. E. 386 (N. C.).

By the better view, an oral agreement for the sale of standing trees is invalidated by the Statute of Frauds. Green v. Armstrong, I Denio (N. Y.) 550; Hirth v. Graham, 50 Ohio St. 57. Contra, Marshall v. Green, 1 C. P. D. 35.

See 13 HARV. L. REV. 225. But an agreement between a landowner and an outsider for payment for planting trees or making other improvements to land is generally held not to be within the statute. Frear v. Hardenbergh, 5 Johns. (N. Y.) 272; Lower v. Winters, 7 Cow. (N. Y.) 263. But see Falmouth v. Thomas, 1 Cromp. & M. 89, 108. The reasoning is that such an agreement is simply a contract for payment for certain labor and chattels to be applied in a given manner, and does not effect a transfer of any interest in the land. The agreement in the principal case comes within this reasoning, so that it seems unnecessary to resort to equitable principles to justify the recovery.

TORTS UNFAIR COMPETITION PIRACY OF NEWS. The Associated Press brought a bill in equity against the International News Service asking that the latter be enjoined, inter alia, from copying news from bulletin boards and early editions of complainant's newspapers and selling this, either bodily or after rewriting it, to defendant's customers, until its commercial value as news to the complainant and all of its members had passed away. Held, such acts constitute unfair competition, complainant has a limited property in news gathered by it, and a preliminary injunction will be granted. International News Service v. The Associated Press, U. S. Sup. Ct., December 23 (October Term, No. 221), 1918.

For a discussion of this case, see NOTES, page 566.

BOOK REVIEWS

A SHORT TREATISE ON CANADIAN CONSTITUTIONAL LAW. By A. H. F. Lefroy. Toronto: Carswell Company. $4.00.

Mr. Lefroy has written a valuable and informative book. American lawyers are in general lamentably ignorant of the working of federalism in the two great English commonwealths; and it has been in the past the excuse that books like Mr. Lefroy's larger treatise on Canada and Mr. Moore's admirable volume are too large for anyone save the student of details. Mr. Lefroy's book removes the basis for this excuse, so far, at least, as Canada is concerned. In three hundred pages he gives us an admirable summary of the main legal hypotheses of Canadian federalism and a mass of notes which refer to the more important cases on the subject. Professor Kennedy of Toronto contributes a useful historical introduction in which Canadian constitutionalism prior to 1867 is discussed.

One or two observations of special importance may be noted. Legally the question meets us on the threshold as to whether Canada is to be regarded as a federation at all. If A. G. for Australia v. Colonial Sugar Refining Co., [1914] A. C. 237, is to be accepted as good law, Canada is to be regarded as simply a rather striking instance of decentralization in which old powers were redistributed. Mr. Lefroy argues that it is impossible to accept this point of view. It mistakes a confederation for what may be the same thing in result, but utterly different in its origin. The Federation Act of 1867 clearly intended to recognize national unity in the milieu of a very complete right to local selfgovernment, exactly as in the case of the Constitution of the United States.

It is well known that Mr. Lefroy is the urgent advocate of a complete distinction between American and Canadian federalism, and it is worth while to summarize the grounds of his argument. (1) In Canada there is no separation of powers. The existence, both in the federal and provincial governments, of the English parliamentary system, with its fusion of executive and legislature, marks a fundamental difference from the system of America. (2) There

is no such restriction on the legislative power as in things like the Fourteenth Amendment. The limitation of the constitution is not as to the contents of an act but as to its subjects. (3) Residual sovereignty belongs not to the local but to the central government. (4) Nó popular reserve power of constitutional amendment exists in Canada. This is, without question, an interesting attitude. At least it is certain that the Canadian system did not consciously, as did Australia, attempt the adaptation of the American system to its peculiar problem. Yet it is worth noting that Australia, like Canada, has a parliamentary executive without any marked divergences from American federalism. And both in Canada and Australia the power of judicial review - the real keystone of the federal arch has been very notably developed, particularly in recent years.

Several minor points of distinct utility may be noted. The remarks on copyright (page 159 f.) are wholly admirable and put the problem in the clearest possible light, despite its complexity. The note on estoppel from setting up unconstitutionality as a plea (page 196) is most suggestive. Particularly interesting is the discussion on locally restricted dominion laws (page 88 f.). Altogether the volume suggests how differently existing books on American constitutional law might be written if they were intrusted to people with Mr. Lefroy's broad constitutional insight. His work, on its scale, is a model for American lawyers to emulate. H. J. L.

A SOURCE-BOOK OF MILITARY LAW AND WAR-TIME LEGISLATION. Prepared by the War Department Committee on Education and Special Training. St. Paul: West Publishing Company. 1919.

The idea of establishing a Students' Army Training Corps in the colleges of the country was well conceived. It is probable that in practice the plan would eventually have worked out well, and that there would have been a reservoir from which young officers could have been drawn. The wisdom af establishing units of the S. A. T. C. in the law schools was much more doubtful. The leading law schools of the country had already been drained of all the students who were available for military service in any form. Only in schools in which high school graduates were admitted could be found possible officer material in any numbers. The plan of the Committee on Education and Special Training of the War Department included a course on International Law, one on Military Law, one on War-Time Legislation, and one on War Issues; and such ordinary law courses as time allowed. It would seem that the committee in attempting to provide for the imparting of information of practical military value and for the general intellectual training of the student in order to make him a more useful member of the army, and in attempting at the same time to assist him in preparing for his subsequent career at the bar, was attempting to ride several horses with very different gaits a difficult feat even for the War Department. It is difficult to see just what would have been the advantage to the military establishment in keeping students in the law schools. A smattering of legal knowledge would hardly make a young man certainly not one from eighteen to twenty-one years of age more useful in the army, even though that knowledge should include a few weeks' acquaintance with International Law, Military Law, and such statutes as the National Defense Act, the Shipping Board Act, the Espionage Act, and the War Risk Insurance Act. And useful as such knowledge is, it could hardly take the place of the usual law courses as a preparation for the practice of the law.

However this may be, if the S. A. T. C. was to be established in the law schools, it was necessary to provide material for the courses to be pursued.