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passenger, a fortiori ought it to be liable when he assaults a passenger, even though he may 13 be under no individual liability in either case.

There remains the question whether the plaintiff's conduct in provoking the insult should be considered in mitigation of compensatory damages. The courts are divided where an insult by the plaintiff provokes the assault by the servant of the defendant company.14 On the one hand, it is urged that the plaintiff, having brought the injury upon himself, should not recover full damages therefor; on the other, that to allow such mitigation may in effect make provocation a justification, since it enables the jury to give only nominal damages. Regardless of whether or not mitigation should be allowed in actions between individuals, 15 the true view seems to be that the vital interest of the public forbids its application in suits against public service companies.16

RECENT CASES.

ADVERSE POSSESSION SUBJECT MATTER AND EXTENT OF ADVERSE POSSESSION MINERALS: SEVERANCE FROM SURFACE BY DEED: GRANTEE OF ADVERSE POSSESSOR HOLDING POSSESSION FOR HIS GRANTOR.—The plaintiff's grantor took possession of certain land without any paper title and held it adversely for seven years. He then conveyed the surface of the land to X., reserving the minerals; and X. and his grantees entering held possession of the surface for the remainder of the statutory period, no one meanwhile operating the mines. Thereafter the plaintiff bought the minerals from the grantor, and brings this bill to quiet his title to them. Held, that the plaintiff is entitled to the relief sought. Moore v. Empire Land Co., 61 So. 940 (Ala).

The court decides that while the conveyance of the surface reserving the minerals actually worked a severance of the mineral and surface rights as between grantor and grantee, nevertheless as regards all outsiders the possession of the surface by the grantee is also a possession of the minerals. This possession of the minerals, however, the grantee holds for his grantor, and at the end of the statutory period the grantor, though not in actual possession himself, has obtained a good title to the mineral rights by adverse possession. Hence on this reasoning it follows that a purchaser from him should be permitted to quiet title to the minerals. In a similar Alabama case it was held conversely that adverse possession of the surface by a grantor was also a possession of the minerals for the benefit of his grantee of the minerals. Black Warrior Coal Co. v. West, 170 Ala. 346, 54 So. 200, see 24 HARV. L. REV. 582, for an editorial comment on this case.

13 The word "may" is used advisedly. It is possible that in time the employees of a public service company will themselves be regarded as public servants. This doctrine, however, is yet in its incipiency.

14 That it should - Houston, etc. R. Co. v. Batchler, 32 Tex. Civ. App. 14, 73 S. W. 981; that it should not Mahoning Valley Ry. Co. v. De Pascale, 70 Ohio St. 179, 71 N. W. 633. That it should mitigate exemplary damages, all courts agree. This is satisfactory, since the awarding of such damages against a corporation whose proper officers have not ordered the acts complained of, is anomalous, in that it punishes a personally innocent defendant. See SEDGWICK, DAMAGES, 9 ed., § 380.

15 The general rule seems to allow mitigation if the insult is recent. Daniel v. Giles, 108 Tenn. 242, 66 S. W. 1128. See Le Laurin v. Murray, 75 Ark. 232, 238, 87 S. W. 131, 133. Contra, Goldsmith's Adm'r v. Joy, 61 Vt. 488, 17 Atl. 1010.

16 The analogy referred to in note 10, supra, is applicable here also.

AGENCY PRINCIPAL'S RIGHTS AGAINST AGENT LIABILITY OF GRATUITOUS AGENT FOR NON-FEASANCE. The defendant, at the plaintiff's request, undertook gratuitously to procure the immediate cancellation of an insurance policy issued by the plaintiff. The defendant directed its local correspondent to investigate the risk with a view to action in the future. The policy remained outstanding, and the plaintiff was obliged to indemnify for a loss. Held, that the defendant is liable in tort. Condon v. Exton-Hall Brokerage & Vessel Agency, 142 N. Y. Supp. 548 (City Court of New York).

For a discussion of the liability of a gratuitous agent for non-feasance, see p. 167 of this issue of the REVIEW.

AGENCY

PRINCIPAL'S RIGHTS AGAINST THIRD PERSONS IN CONTRACTS EFFECT OF RECEIPT OF USURIOUS COMMISSION BY AGENT. The plaintiff intrusted $400 to his agent to loan. The agent loaned $350 to the defendant, taking the latter's note for the sum with legal interest, and exacting besides a $50 commission for himself. The principal knew nothing of the commission, nor derived any benefit from it. In a suit on the note, the defendant sets up usury. Held, the principal can recover, for in exacting the bonus the agent was not acting within his authority. Brown v. Johnson, 134 Pac. 590.

The result is not altogether free from difficulties, although in line with the weight of the authorities. Condit v. Baldwin, 21 N. Y. 219; Call v. Palmer, 116 U. S. 98. The problem arises whether the transaction is one agreement or two distinct agreements. Now where the principal, or the agent acting within his authority, makes the contract, or where the principal is undisclosed, there is one agreement, and the whole is tainted by usury. Hall v. Maudlin, 58 Minn. 137, 59 N. W. 985; Erickson v. Bell, 53 Ia. 627, 6 N. W. 19. So it may be argued the contract is an entirety here. Security Co. v. Hendrickson, 13 Neb. 157, 12 N. W. 916. See Condit v. Baldwin, supra, 229. If so, the contract is the principal's, and since it is unenforceable for usury, even the sum lent cannot be recovered. Security Co. v. Hendrickson, supra. Or better, the contract fails entirely, not on account of the usury, but because the agent exceeded his authority in making it. See Bell v. Day, 32 N. Y. 165, 183; Condit v. Baldwin, supra, 230. The principal, under the last construction, should recover his money in an action for money had and received. See Bell v. Day, supra, 179, 183; Condit v. Baldwin, supra, 230. This latter view seems the best practical solution. But as a matter of fact it seems there are two agreements. Condit v. Baldwin, supra. That was the intention of the parties. So the principal case appears logically correct in allowing a recovery on the good contract. Nor is there any difficulty with the consideration, for the loan was paid. No doubt if the principal had received the bonus from the agent, he would be barred on account of his participation in the illegality. Bliven v. Lydecker, 130 N. Y. 102.

ASSAULT AND BATTERY CRIMINAL RESPONSIBILITY SPECIFIC INTENT OF DEFENDANTS ENGAGED IN COMMON ENTERPRISE. While the defendants were endeavoring to escape apprehension for poaching, one of them shot a gamekeeper. On an indictment for shooting with intent to murder, the court charged that both would be guilty if there had been any arrangement between them to resist capture at all costs, or if the nature of the enterprise was such that both must have realized that resistance at all costs was likely to happen. Held, that the instructions were correct. Rex v. Pridmore, 77 J. P. 339 (C. C. A.).

All who embark upon a common unlawful enterprise are responsible for the intended results of their adventure, since each of them is equally a proximate cause of the other's acts. Rex v. Whithorne, 3 C. & P. 394; Ferguson v. State, 32 Ga. 658. Even if the results are not intended, no break in the causation relieves the confederates from responsibility so long as the results are foreseeable

from the nature of the common design. Regina v. Salmon, 14 Cox C. C. 494; Williams v. State, 81 Ala. 1, 1 So. 179. But where either sudden impulse or preconceived purpose leads one of the number to perpetrate a crime not incidental to the common enterprise, he alone may be held therefor. Rex v. Hawkins, 3 C. & P. 392; Rex v. Collison, 4 C. & P. 565. And when, as in the principal case, a specific intent is an element of the crime, the instructions of the trial judge should require a finding that such intent existed in each defendant in order to establish his guilt. Regina v. Bowen, Car. & M. 149; State v. Taylor, 70 Vt. 1, 39 Atl. 447. Such requirements would not be satisfied in the principal case by proof that if the bullet had killed instead of wounding the gamekeeper the crime would have been murder, for malice aforethought may be inferred from a felonious course of action, without a positive intention to murder. Regina v. Cruse, 8 C. & P. 541. The specific intent necessary in the principal case is a positive intention to murder. The instructions given only require a realization that killing may probably ensue, which although sufficient to constitute malice aforethought is not intent to murder.

BAILMENTS BAILOR AND BAILEE CONVERSION BY BAILEE - DEVIATION FROM TERMS OF BAILMENT WITHOUT DAMAGE DURING DEVIATION. The plaintiff, a liveryman, rented a horse and carriage to the defendant to drive from A. to B. The defendant in violation of the terms of the bailment drove beyond B. to C. After returning to B., the horse was killed without fault on the part of the defendant and not as a result of the deviation. Held, that the defendant is not liable in trover. Daugherty v. Reveal, 102 N. E. 381 (Ind. App. Ct.).

In general, to sustain an action for conversion, there must be an exercise of dominion over property inconsistent with, or in repudiation of, the true owner's rights. Johnson v. Farr, 60 N. H. 426. See Spooner v. Holmes, 102 Mass. 503. If this exercise of dominion be under an outright claim of ownership, it is of itself a conversion, even if made by mistake. Hartford Ice Co. v. Greenwoods Co., 61 Conn. 166, 23 Atl. 91. But if it be the temporary use of another's property, special circumstances of the case should govern the decision. Where damage occurs during an intentional deviation, trover will lie. Burnard v. Haggis, 14 C. B. N. s. 45; Perham v. Coney, 117 Mass. 102. Contra, Harvey v. Epes, 12 Grat. 153. But if the deviation be unintentional, even if accompanied by damage, it would not be conversion. Spooner v. Manchester, 133 Mass. 270. Substantial damage, moreover, is often held an indispensable element in the plaintiff's cause. Fouldes v. Willoughby, 8 M. & W. 540; Simmons v. Lillystone, 8 Exch. 431. Thus have the courts taken a common-sense view of this subject, and accordingly it is submitted the principal case is correct in holding technical wrong unconnected with loss insufficient to impose full liability upon the defendant. This seems fairer than the old rule that mere deviation is conversion. Wheelock v. Wheelwright, 5 Mass. 104. And what modern authority there is, is in accord. Farkas v. Powell, 86 Ga. 800, 13 S. E. 200; Doolittle v. Shaw, 92 Ia. 348, 60 N. W. 621. See 8 HARV. L. REV. 280.

BANKRUPTCY - PARTNERSHIP CASES - Power of BANKRUPTCY COURT TO ADMINISTER NON-BANKRUPT PARTNER'S ESTATE. - The court of bankruptcy having adjudicated two partners and the bankrupt firm, the trustee petitions that as part of the administration of the firm bankruptcy, the court should be allowed to draw to itself for administration the estate of a third partner, not adjudicated. Held, that such order be made. Francis v. McNeal, 228 U. S. 695, 33 Sup. Ct. 701, affirming 186 Fed. 481 (C. C. A. 3d Cir.). The Supreme Court settles this controverted point in accordance with the weight of authority of the lower federal courts. In re Meyer, 98 Fed. 976

(C. C. A. 2d Cir.); In re Stokes, 106 Fed. 312 (D. C.); Dichas v. Barnes, 140 Fed. 849 (C. C. A. 6th Cir.). Contra, In re Bertenshaw, 157 Fed. 363 (C. C. A. 8th Cir.). But it practically denies the expression of the entity theory of partnership in the Bankruptcy Act of 1898. That theory would lead to a contrary result, since the court of bankruptcy would have no right to administer any property which does not belong to the bankrupt. In re Bertenshaw, 157 Fed. 363 (C. C. A. 8th Cir.). See 18 HARV. L. REV. 495; 20 HARV. L. REV. 589, 594; 19 HARV. L. REV. 615. The case also decides that it is impossible for the firm to be insolvent so long as any of its members remain able to pay its debts, a necessary result of the aggregate theory of partnership adopted by the court. Vaccaro v. Security Bank, 103 Fed. 436 (C. C. A. 6th Cir.); In re Blair, 99 Fed. 76. Those who desired to see a recognition of the entity theory in the act would of course have reached a contrary result. In re Bertenshaw, 157 Fed. 363 (C. C. A. 6th Cir.). See COLLIER, BANKRUPTCY, 4 ed., 119; 18 HARV. L. REV. 495, 498. A recent decision in the Federal District Court for Southern New York decided after the principal case but not citing it, reaches the same result, because the court felt bound by authority, arguing nevertheless for the adop tion of the entity theory. In re Samuels Lesser. Ex parte Quinn, 30 Am. B. R. 293 (D. C. for So. N. Y.).

BANKS AND BANKING DEPOSITS: LIABILITY TO DEPOSITOR - DEPOSIT TO PERSONAL ACCOUNT OF CHECK PAYABLE TO TRUSTEE. - The defendant bank allowed a guardian to deposit to his personal account a check which, to the knowledge of the bank, represented guardianship funds. The guardian later checked out his entire deposit and absconded. Held, that the bank is liable to the surety on the guardian's bond. United States Fidelity & Guaranty Co. v. People's Bank, 157 S. W. 414 (Tenn.).

Ordinarily a trustee who deposits trust funds to his personal account commits a breach of trust. McAllister v. Commonwealth, 30 Pa. 536; Booth v. Wilkinson, 78 Wis. 652, 47 N. W. 1128. Contra, Goodwin v. American National Bank, 48 Conn. 550. Such a form of deposit in many cases may cause the cestui great difficulty in establishing his right to this specific fund. The deceiving appearance may induce creditors of the trustee to attach it, or, in case of the trustee's death, may induce his executor to claim it, thus greatly embarrassing the administration of the trust. Wagner v. Coen, 41 W. Va. 351, 23 S. E. 735; School District v. First National Bank, 102 Mass. 174. Although a bank must honor checks drawn on it by depositing trustees without inquiry as to the intended use of the money, and is therefore not liable for subsequent misappropriation by the trustee, yet, if it knowingly assists a trustee in a breach of trust by allowing a misuse of banking facilities it is liable to the cestui for loss caused thereby. This assistance may be by transferring funds from the separate trust account to the personal account of the trustee, or by setting off a deposit of trust funds against a debt due the bank from the trustee. Or it may consist in accepting a deposit of trust funds to the trustee's personal account. Allen v. Puritan Trust Co., 211 Mass. 409, 97 N. E. 916; Bank of Hickory v. McPherson, 59 So. 934 (Miss.); Boone County Bank v. Byrum, 68 Ark. 71, 56 S. W. 532. An apparent conflict between the cases as to the bank's liability in the last instance may perhaps be explained by a consideration of the nature of the trust involved. In the case of an official trustee, as sheriff, commissioner, administrator, or guardian, the cases uniformly hold that mere notice to the bank that the fund deposited is held in trust will render it liable if harm results from an improper form of deposit. This is doubtless due to the fact that an official trustee never has a right to deposit the funds to his private account. But where the bank merely knows that the deposit consists of private trust funds, it cannot be held liable for permitting such a deposit, as by the terms of the trust the trustee may have the right to use that form of deposit. Batchel

der v. Central National Bank of Boston, 188 Mass. 25, 73 N. E. 1024; Ashton v. Atlantic Bank, 3 Allen (Mass.) 217. Where the defendant knows, as it did in the principal case from the fact that he was a guardian, that the trustee has no authority to deposit to his personal account, it is properly held liable. Duckett v. National Mechanics' Bank, 86 Md. 400, 38 Atl. 983.

BILLS AND NOTES DEFENSES - INTOXICATION AND INSANITY. The defendant signed a note as accommodation co-maker while in a state of complete intoxication. Held, that a holder in due course cannot recover. Green v. Gunsten, 142 N. W. 261 (Wis.). See NOTES, p. 164.

BILLS AND NOTES RIGHTS OF HOLDER AGAINST GARNISHING CREDITOR OF DRAWER. A depositor drew a check on the R. bank, for a smaller amount than his deposit, in favor of the M. bank. Before M. sent the check to R. for payment, a creditor of the depositor garnished the R. bank and M. intervened. Held, that the intervener is entitled to the amount of the check from the deposit in the R. bank. Farrington v. F. E. Fleming Commission Co., 142 N. W. 297 (Neb.).

A check against a specified account, or for the whole deposit, or when accompanied by an assignment agreement, has been held to be an equitable assignment pro tanto of the depositor's claim. Fortier v. Delgado & Co., 122 Fed. 604; Taylor's Estate, 154 Pa. St. 183, 25 Atl. 1061; Throop Grain Elevator Co. v. Smith, 110 N. Y. 83. But these are only exceptions to the commonlaw principle accepted in the great majority of jurisdictions that a check is not an assignment, the payee having no more right against the drawee than on any other unaccepted bill of exchange. Hopkinson v. Forster, L. R. 19 Eq. 74; O'Connor v. Mechanics' Bank, 124 N. Y. 324. A few states, including Nebraska, took the opposite view. Fonner v. Smith, 31 Neb. 107, 47 N. W. 632. If the check is not an assignment, the garnishing creditor of the depositor prevails against the holder of the check who has no claim upon the funds. Dickenson v. Coates, 79 Mo. 250; Kuhn v. Warren Savings Bank, 11 Atl. 440 (Pa.). The Negotiable Instruments Law, § 189, adopted in Nebraska, expressly provides that a check is not an assignment. Contrary to the principal case, Kentucky, which formerly held a check to be an assignment, has recognized that the adoption of this statute changed the old law. Taylor's Adm'r v. Taylor's Assignees, 78 Ky. 470; Boswell v. Citizens Savings Bank, 123 Ky. 485, 490, 96 S. W. 797, 799. The principal case follows the old minority view and is directly opposed to the express words of the Negotiable Instruments Law.

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CARRIERS DISCRIMINATION AND OVERCHARGE MISTAKE: LIABILITY FOR NEGLIGENCE FOR QUOTING TOO HIGH A Rate by MISTAKE. — A carrier quoted a rate to a shipper which by error was less than that published in accordance with sec. 6 of the Interstate Commerce Act. The shipper in reliance made a contract for the sale of certain cotton seed, and loaded it on cars. Later the carrier notified the shipper that a mistake had been made and quoted a new rate, which by a second mistake was higher than the published rate. The shipper refused to ship, but stated that he would have shipped at the correct rate and sued for lost profits. Held, that he may recover. Aldrich v. Southern Ry. Co., 79 S. E. 316 (S. C.).

The case is unquestionably sound in holding the carrier liable for refusing to accept at a reasonable rate the shipment tendered to it. Pickford v. Grand Junction Ry. Co., 8 M. & W. 372. The published rate is held legally to be the only reasonable one. Texas&P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350. The case, however, is made to depend solely on the actual tender of the goods, and recovery would have been denied if the shipper's remedy had been dependent merely on the negligence of the carrier.

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