VARD LAW REVIEW, 233. Among the States which apply this rule there are some, including New York itself, which hold that a promise by a bank to its depositor that it will pay the depositor's debts to third persons (check-holders) will not support an action by the check-holders against the bank. It is hard to see how the cases can be reconciled on any principle, but as there is no common law principle at the bottom of the rule in Lawrence v. Fox, the inconsistency may presumably be treated as a determination on the part of those courts to narrow the scope of the rule, and not to apply it where the third party is merely one of an undetermined class of the promisee's creditors, instead of being a single creditor definitely named by the contracting parties.

The New York court in Etna Bank v. Fourth Bank (46 N. Y. 82, 87) endeavored to distinguish the cases as follows: "Lawrence v. Fox was upon an express promise to pay a sum of money, received by the defendant from a debtor of the plaintiff, to the plaintiff; and the promise was the consideration upon which, and upon which alone, he received the money. . . . Here the defendant was a debtor upon a general banker's account; there was no special loan on an express promise to pay the plaintiff." In New Jersey this inconsistency exists (Huyler's Executors v. Atwood, 26 N. J. Eq. 504; Creveling v. Bloomsbury Bank, 46 N. J. Law, 255); and in Pennsylvania also (Merriman v. Moore, 90 Pa. St. 78; First Bank v. Shoemaker, 117 Pa. St. 94); but in the latter State they allow a suit if the check is for the whole amount of the deposit (Saylor v. Bushong, 100 Pa. St. 23), on the theory that such a check is an assignment of the funds in the bank, an objectionable doctrine, it would seem, when it is remembered that a bank, instead of holding any specific funds of the depositor, is merely his debtor, and that a check is an order to pay, in the nature of an unaccepted bill of exchange. In Maryland and Michigan, states which follow Lawrence v. Fox, the courts seem to deny the right of a check-holder to sue the bank, although the point does not appear to have been directly adjudicated. (O'Neal v. School Commissioners, 27 Md. 227; Moses v. Franklin Bank, 34 Md. 574; Crawford v. Edwards, 33 Mich. 354; Brennan v. Merchants' Bank, 62 Mich. 343.) Perhaps the most interesting example of this inconsistency is in Colorado. In Lehow v. Simonton (3 Colo. 346), a third party, to whom the money was by the contract to be paid, was allowed to sue on the contract; but in Boettcher v. Colorado Bank (15 Colo. 16), a suit by a check-holder against the bank was decided in favor of the bank; one judge, however, feeling himself bound by Lehow v. Simonton, dissented, on the ground that the cases were indistinguishable.

A number of authorities on this point are cited in a recent and carefully considered case in Ohio (Cincinnati H. & D. R. R. Co. v. Metropolitan Bank, 42 N. E. Rep. 700), which holds that the check-holder has no right of action against the bank for refusal to pay the check.

CONVERSION BY A PLEDGEE. - Two recent cases, Waring v. Gaskill, 22 S. E. Rep. 659 (Ga.), and Richardson v. Ashby, 33 S. W. Rep. 805 (Mo.), are authority for the proposition that where a pledgee tortiously sells his pledge, or repledges it for a greater sum than the debt for which it is security, the pledgor has an immediate right to bring an action in trover without tendering the amount of his indebtedness. What little law

there is on this subject is unsettled. It would seem the more natural step to bring an action for violation of the contract of pledge, or to tender payment before bringing the action of trover. In the action on the contract, at least, an equitable defence would be allowed. The plaintiff's damages would be diminished by the amount of his debt to the defendant, the pledgee.

On the precise question involved in the two cases cited there is a conflict of opinion. In England the law is contrary to these authorities. The first English case on the subject, Johnson v. Stear, 15 C. B. N. s. 330, held that the pledgee's act was conversion, but that the amount of damages should be only the pledgor's actual loss, that the pledgee's interest in the pledge at the time of the conversion should be taken into account. Mr. Justice Williams in an able dissenting opinion maintained that the pledgee stood in practically the same position as a factor, - that by his act the pledgor regained immediate right of possession, and was entitled to judgment in trover for the full value of the goods. Obviously, if there was conversion at all, full damages should have been awarded. Two later cases, Donald v. Suckling, L. R. 1 Q. B. 585, and Halliday v. Holgate, L. R. 3 Ex. 299, practically overruled Johnson v. Stear by holding that there was no conversion. To support this view, the court maintained that a pledge is something more than a mere bailment, and that the pledgee, by parting with possession, does not lose his special property in the pledge. Mr. Justice Shee dissented in Donald v. Suckling on the grounds put forth by Mr. Justice Williams in the earlier case. Nevertheless, these two cases represent the English law.

In the United States the question is still open. Some courts adopt the English view without question or hesitation. Others maintain the views adopted by Georgia and Missouri courts. The English doctrine would seem to be the less satisfactory. There is no cogent reason for holding that the pledgee gets so much more extended rights than a bare bailee that he can dispose of the article pledged without losing his lien. It would seem more natural and consistent that, apart from the privilege of pledging up to the amount of the original security, - a proceeding which in no way affects the first pledgor's position, - the pledgee should have no more right. than the factor holding his principal's goods, on which he loses his lien in parting with possession. Just as the pledgor may maintain trover for destruction of the pledged goods by the negligence of the pledgee, so should he be allowed trover when the pledgee has repledged the goods for an amount greater than the original pledgor's indebtedness to him.

RESPONDEAT SUPERIOR IN THE CASE OF CHARITABLE CORPORATIONS. Is the doctrine of respondeat superior to be applied to charitable corporations? A résumé of the judical decisions in point may start appropriately with the case of Duncan v. Findiater, 6 Cl. & Fin. 894 (1839), decided on appeal from the Scotch Court of Session. The only importance of the case lies in a dictum by Lord Cottenham to the effect that the funds of a body incorporated for public purposes can never be diverted from those purposes to the payment of damages which are recovered for injuries caused by the negligence of the servants of the corporation; and that a suit for such damages is consequently idle, and will not be entertained by the courts. This view was reaffirmed and applied to charitable corporations

in Feoffees of Heriot's Hospital v. Ross, 12 Cl. & Fin. (1846), also a Scotch appeal case. Holliday v. St. Leonard's Parish, 11 C. B. N. s. 192 (1861), although dealing with the liability of a local surveying board, lays down a rule which is often invoked to protect charitable corporations: "Persons intrusted with the performance of a public duty, discharging it gratuitously, and themselves taking no personal share in the mode of its performance, are exempted from liability for the negligent acts of the persons employed by them." (Per Erle, C. J., p. 204.) The great case on this point of law was decided in the House of Lords in 1866 ("Mersey Docks and Harbor Board" Trustees v. Gibbs, L. R. 1 H. L. 93). This case also, though not dealing with charitable corporations, is applicable to them. The court overthrows the dictum in Duncan v. Findlater. Trustees here managed certain docks solely for the public benefit; but according to the terms of the incorporating statutes, as interpreted by Blackburn, J., a duty was imposed upon the corporation "to take reasonable care that they" (i. e. the docks) were in a fit state" for public use; and it was held that the corporation, despite its public nature, could not rid itself of liability for non-performance of its duty, by relegating performance of that duty to its servants. The funds of the corporation were held applicable to the payment of damages recovered for breaches of duty. Foreman v. Mayor &c., L. R. 6 Q. B. 214 (1884), marks the limit reached by the English cases. A servant of the local board of highway surveyors had negligently left stones on the highway. It does not appear whether this was a breach of the duty imposed on the board, or mere collateral negligence of the servant. It was said, however, that a corporation established for public purposes was liable for the negligence of its servants to the same extent that a private person or private corporation would be liable; and it was also said that Mersey Docks &c. Trustees v. Gibbs had overruled Holliday v. St. Leonard's, though not by

name.

In Donaldson v. Commissioners &c., 30 New Bruns. Rep. 379 (1890), plaintiff brought suit against a hospital for negligent treatment at the hands of the hospital physicians and nurses. The defendant's demurrer admitted the alleged duty to see that its patients received proper treatment, but rested its defence on the broad claim that a charitable corporation is not liable for torts of its servants, and cited Holliday v. St. Leonard's, and the earlier House of Lords cases, supra. It was properly held, however, that as the defendant had admitted a duty to bestow careful treatment, it was liable for non-performance of that duty, although the non-performance was due to its servants' negligence. This case plainly goes no farther than Mersey Docks &c. Trustees v. Gibbs.

In the United States, the decisions are irreconcilable. Downes v. Harper Hospital, 101 Mich. 555 (1894), takes the extreme view supported in Feoffees &c. v. Ross, supra, that a charitable corporation can never be liable for the negligence of its servants. McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876), and Union Pacific Ry. Co. v. Artist, 60 Fed. Rep. 365 (1894), take a middle ground, that the duty of a charitable hospital corporation is confined to the exercise of reasonable care in furnishing suitable accommodations and competent attendants; and that beyond the performance of these duties there is no liability of the corporation for the negligence of its servants. Glavin v. R. I. Hospital, 12 R. I. 411 (1879), on the other hand, holds that, once the relation

of servant and master is made out, a charitable corporation is liable for its servants' negligent acts, adopting the doctrine of Foreman v. Mayor &c.

Despite Downes v. Hospital, supra, it is generally law then that a corporation designed for charitable (or public) purposes is liable for the non-performance of whatever duty may be imposed upon it; nor is it a sufficient answer to allege that its non-performance was due to its servants' negligence, or that it possessed no funds but those dedicated to carrying out its charitable or public purposes. The exact extent of the duty imposed is often a troublesome question. That difficulty, however, does not affect the liability of a corporation once the duty is determined. But the decisions cited supra show that the question whether, beyond this liability for the non-performance of duty, there is a liability for the negligence of the corporation's servants, is still open. The English courts (Foreman v. Mayor &c., supra) now decline to recognize any distinction in applying the doctrine of respondeat superior to charitable and to business corporations. Yet this doctrine has never been sustained on satisfactory grounds; it has been vigorously assailed at times (see Parliamentary Blue Book on the Employers' Liability Bill, 1877; testimony of Bramwell and Brett, L. JJ., pp. 58, 59, 115, 119), and is questioned in Pollock on Torts, 2d edition, 69, 70. It may be well doubted, therefore, whether it should be extended to the case of charitable corporations, where it is more likely to impair than to secure substantial justice. The Connecticut Supreme Court in the last decided case on the point (Hearns v. Waterbury Hospital, 33 Atl. Rep. 595), after a careful and exhaustive consideration of authorities, has refused to make such an extension. The outcome of a similar case, at present awaiting decision in the New Hampshire Supreme Court, will be watched with interest.

Of course if, in certain circumstances, a charitable corporation can be said to be a servant of the public in the sense that an officer of state is such a servant, the doctrine of respondeat superior is inapplicable on other grounds.

RECENT CASES.

AGENCY-LIBEL LIABILITY OF MANAGING EDITOR OF NEWSPAPER. — Held, where the managing editor of a newspaper is also an officer of the corporation owning the paper, he is equally liable with the publisher and proprietor for the consequences of a libellous publication, and mere want of knowledge on his part is no defence, since it is his business to know. Smith v. Utley, 65 N. W. Rep. 744 (Wis.).

If in this case the libellous matter actually passed through the hands of the managing editor to those employed in the actual work of printing, there is no question of his liability. It is a positive act, like a trespass on land. But assuming that it did not so happen, the case turns on the distinction between nonfeasance and misfeasance. Did the editor by assuming his position so interfere, and play such an active part, that he became responsible to third persons for the careful conduct of the paper? It seems difficult to say that he did not, and yet it has been held that a general agent, having control of real estate, cannot be held for injuries received from the falling of a door on account of its being out of repair. Baird v. Shipman, 132 Ill, 16. The fact that the editor here was an officer of the corporation has no bearing on the matter.

AGENCY WHEN KNOWLEDGE OF AGENT IS KNOWLEDGE OF PRINCIPAL. Where the agent of an insurance company has acquired knowledge of outstanding

over-insurance, by virtue of his relation as attorney for the party insured and in a transaction wholly foreign to the business of the company which it is his duty to transact, his knowledge does not estop the company. Union Nat. Bank v. German Ins. Co., 71 Fed. Rep. 473.

The general statement that knowledge of the agent is knowledge of the principal means that the knowledge of the agent is so when acquired in a transaction which is part of the agency. Knowledge acquired in a wholly collateral proceeding cannot be imputed to the principal. It is on this ground the case rests, and not on the fact that the statements between attorney and client are confidential. In Trentor v. Pothen, 49 N. W. Rep. 129, and in St. Paul Ins. Co. v. Parsons, 50 N. W. Rep. 240, a full discussion of the subject will he found.

BILLS AND NOTES-INNOCENT PURCHASER-KNOWLEDGE AT TIME OF ACTION BROUGHT OF AN EQUITABLE Defence. — A bill was drawn on and accepted by the defendant payable to the drawer, and by him indorsed to the plaintiff, an innocent purchaser. The bill was dishonored at maturity, but before trial was begun in this action the plaintiff learned that between the drawer and the defendant there was a failure of consideration. The plaintiff held at the time of dishonor, and still holds, sufficient funds of the drawer to pay the bill, but neglects to appropriate them and prosecutes this action at the instigation of the drawer. Held, the funds of the drawer in the hands of the plaintiff should be offset against the bill. Van Winkle Machinery Company v. Citizens' Bank, 33 S. W. Rep. 862 (Tex.).

The result reached is eminently satisfactory and seems correct. The true ground would seem to be that under the circumstances the drawer became the real debtor, for whom the defendant was a surety, who, when sued by the creditor, is entitled to set off any assets of his principal in the hands of the plaintiff.

BILLS AND NOTES - UNACCEPTED CHECK. - A bank is not liable to a checkholder in a suit on the check, although it has funds of the drawer more than sufficient to pay the check. The question arose on demurrer. Cincinnati, Hamilton, & Dayton R. R. Co. v. Metropolitan Nat. Bank, 42 N. E. Rep. 700 (Ohio).

Ohio thus accords with the majority of jurisdictions; a few States are contra. 2 Randolph on Commercial Paper, 280; 2 Daniels on Negotiable Instruments, § 1638. See NOTES.

CONFLICT OF LAWS-DOMIcil — EvidenCE OF CHANGE - RESIDENCE AT VARIOUS PLACES.-D.'s domicil of origin and birthplace were Scotch. At the age of eleven he went to school in England, remaining there for eight years, but spending vacations in Scotland. He then went to Media for five years, there becoming a priest in the Church of England. He returned to Scotland for six months. For twenty-six years thereafter he served in eight or more churches in England, spending however a year upon the Continent, another in Scotland, and two in Grenada. During all these years, unless abroad. D. spent two or three months in each year in Scotland. In England he lived principally in apartments and in the houses of others, but soon after marriage, in 1872, took a house for three months, and later the lease of another for seven. His wife died in 1891, the question being as to D.'s domicil at the time of her death. Held, that it was Scotch. In re Dunbar, 12 The Times Law Rep. 153.

The court thought that the domicil of origin had never been changed, though the case did not require a decision as to this. The case exhibits a tendency to follow In re Patience, 29 Chan. Div. 976, although its facts would seem to bring it within the decision of In re Craignish, L. R. [1892] 3 Chan. 180. American courts have less difficulty in finding a change of domicil. Williams v. Roxbury, 12 Gray, 21; Wilbraham v. Ludlow, 99 Mass. 587; Hicks v. Skinner, 72 N. C. 1.

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ACCORD AND SATISFACTION.

CONSTITUTIONAL LAW — GETTysburg ReservaTION. — Under an act of Congress providing for monuments and tablets at Gettysburg "for the purpose of preserving the lines of battle at Gettysburg, Pa., and for properly marking with tablets the positions occupied by the various commands," proceedings were begun for the condemnation of land. Held, the act is within the constitutional power of the national legislature. United States v. Gettysburg Electric Ry. Co., 16 Sup. Ct. Rep. 427. See Notes. CONTRACTS Plaintiff and defendant disagreed as to the amount due the former as commission for a sale. Defendant sent a check for the amount admitted by him to be due plaintiff, and enclosed a voucher, to be signed and returned by plaintiff, acknowledging receipt of the check "in full payment for commissions." Plaintiff kept and used the check, but did not return the voucher. Held, by accepting the check, plaintiff had precluded himself from disputing the fact that the check was full payment. Nassoiy v. Tomlinson et al., 42 N. E. Rep. 715 (N. Y.). The claim here being for an unliquidated sum, and plaintiff having accepted the