ernor for, notwithstanding a contrary opinion entertained by the surrendering Governor, in law, that of the demanding Governor must be respected "unless clearly overthrown." Except where passion has enslaved reason it is difficult to imagine a demand so wholly without foundation as to be susceptible of such a fate. Such a condition would not merely be beneath the dignity of an ancient and honorable office, but would suggest such a deplorable and obvious wantonness, oppression and prejudice as to assure unfitness for office and a misrepresentation of a respectable people. And yet a recalcitrant Governor may nullify this law.

The capricious or wanton refusal of the surrendering Governor is the greatest vice, since there is not apparent a judicial remedy. The protected fugitive needs no other assistance and the Governor cannot be coerced except when driven by public opinion. But, an inflamed public sentiment based upon this misinformation, or any of the passions heretofore pointed out, may lend an ephemeral support from which the Governor would plead justification for the protection given to the legally indicted fugitive.

If we have succeeded in developing the point, there will follow in the minds of the thoughtful a conviction of the necessity, if happy interstate relations shall continue, of a standardization of the rules (we will not call them laws) of extradition, so firmly established as to be compulsory over politics, passion, prejudice or State pride. It is a problem of our complex nationalism awaiting the wisdom of a Solomon. But, there is no reason why one should not hope and help and wait. The basis of it may be found in Hogan v. ONeill. The necessary energy may be found in a wholesome public sentiment born of the necessity of freeing justice from the caprice of Governors or the incubus of the influence of politics and passion.

THOMAS W. SHELTON.

NOTES OF IMPORTANT DECISIONS.

AGREEMENT ΤΟ EXECUTE A NEW LEASE WITHIN STATUTE OF FRAUDS.Some lawyers make the mistake of thinking that an oral agreement to make a new lease and simply remaining on premises is enforceable, without more, on the theory of part per formance. There must be in such cases a special reliance on the oral agreement to execute the lease, such as making expenditures in fitting up and improving the property for the purposes contemplated by the lease, to constitute such part performance which will take the contract out of the Statute of Frauds.

This distinction is made clear in the recent case of Blumenfeld v. Bernstein (N. Y. App. Div.), 65 N. Y. L. J. 153. In this case the plaintiff lessee claimed that in September, 1919, the rent collector of landlords' premises negotiated with him for a new lease, to commence upon the expiration of the existing lease, upon the following April 30, 1920, and that two copies of the proposed new lease were thereafter prepared specifying a yearly rent of $3.240, which he signed, and that he was assured that everything would be all right. The landlords did not send the new lease as promised. On November 19, 1919, the tenant received a registered letter from landlords, in which tenant was told he could have a new lease at a yearly rental of $3,900, and requesting reply by return mail. The tenant did not reply, and admitted that he knew at least five months before the expiration of his term that the landlords would not lease the premises to him at the yearly rental of $3,240. On April 30, the last day of the old term, the landlords were served with an order to show cause in an action enjoining them from commencing or prosecuting any proceeding to recover the possession of the premises, and demanding specific performance of the alleged agreement of lease at the $3,240 rental. The Special Term found that plaintiff relied upon defendants' representations that the leases would be executed, and that in reliance thereon plaintiff made no efforts to secure suitable quarters for his business elsewhere.

The Appellate Division held that the Statute of Frauds was a complete defense to plaintiff's claim, and nothing was done to take the case out of the operation of the statute, as there was no written lease subscribed by the defendants or by their lawfully authorized agent,

nor was there any part performance of the alleged agreement to lease.

The case of Roedmann v. Hertel, 78 Misc. 55, shows the circumstances under which the rule of part performance is applied. In that case it appeared that the day after an unsigned lease was given to the party, he paid a deposit and received a receipt reciting a five-year lease, and then entered into possession and made permanent improvements, which cost a considerable amount of money. The court held under these circumstances that there was evidence

that the act complained of was done in contemplation or furtherance of that dispute, but even assuming these facts to be proved, the tort may be actionable on other grounds not covered by the limitations of this section.

Thus, in Conway v. Wade,2 Lord Loreburn in the course of his judgment says: "It is clear that if there be threats or vio

pliance with the statute to justify specific performance of the agreement.

INDUSTRIAL COERCION.

The question of interference for labor or business reasons with the individual freedom either of a workman or of a capitalist is one which is causing at present much conflict of opinion here. At common law, every man has a right to dispose of his labor as he chooses, subject to the limitations recognized by law. The raison d'etre of this sound maxim is concisely stated by Lord Sumner in his judgment in Rodrigue v. Speyer: "A man validly contracts as he will because he is a free man; he validly disposes of his property as he will because it is his own." By statute, however, (The Trades Disputes Act of 1907) it is provided that, if an act is done by a person in contemplation or furtherance of a trade dispute, it is not actionable on the ground only that it induces some other person to break a contract of employment, or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.

There have been a large number of Trade Union cases in which the above section has been pleaded as a defense to the action, and in each case the onus is upon the defendant to show that there was a trade dispute in existence or contemplation,

then there is some ground of action besides the ground that 'it induces some other person to break a contract' and so forth. So far, there is no change. If the inducement be to break a contract (of employment) without threat or violence, then this is no longer actionable, provided always that it was done 'in contemplation or furtherance of a trade dispute' If there be no threat or violence, and no breach of contract, and yet there is 'an interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or his labor as he wills,' then again there is perhaps a change. It is not to be actionable, provided that it was done 'in contemplation or furtherance of a trade dispute.'

It is also clear that if the "inducement or interference in contemplation or furtherance of a trade dispute" is brought about by coercion or intimidation, the section of the Act affords no protection. Whether or not such is the case is a question of fact which it is often very difficult to determine. As Astbury, J., says in Valentine v. Hyde and Howard:3 "Provided that the method employed to affect a purpose otherwise lawful did not consist in anything beyond a warning it had been said that that was unobjectionable in law, but the distinction between coercion in its varied forms, which was unlawful, and a warning which was not was a fine one in many cases, and it was a question to be determined on the facts, and the true inference

to be deduced from them in each case, on which side of the line the action fell."

There is much uncertainty as to what the familiar terms-"coercion," "intimidation," "restraint of trade," "Peaceful persuasion" really amount to. The decision in Davies v. Thomas, to which we now refer though apparently in favor of the Association really turned on the facts of the case. The rules of an association of employers in a particular trade provided that if an employe of a member of the association left the service of his employer no other member of the association should employ or supply him for twelve months. The plaintiff, who was employed as a traveler by Williams, the secretary of the association, left him and entered the service of Hopkins, another member, for whom he canvassed the customers of Williams. At a meeting of the association convened by Williams, Hopkins was persuaded by Williams and other members to give the plaintiff notice to terminate his employment. No illegal means, such as coercion, threats, or intimidation were used to induce Hopkins to dismiss the plaintiff. The plaintiff brought an action against Williams, and the other officials of the association for an injunction to restrain them from interfering with him in his calling, and for damages. Mr. Justice Lawrence held and the Court of Appeal affirmed that the plaintiff had no cause of action against the defendants.

The following observations by Lord Justice Warrington are of very general interest today-"If I see that a man is employing a person under circumstances which make it, in my opinion, not quite fair or right that he should be employing him, am I committing an illegal act because I get a man who also holds the same opinions to go with me and we together represent to the employer that he is not doing what he ought to do? I think that can only be answered in one way. It seems to me, therefore, that on the facts, as I have stated

them, which I think are the result of those found by the learned judge, that the plaintiff could have no right of action against these defendants. But I must not dismiss it quite so shortly as that. It may be that, if a great number of persons are engaged in the transaction, from that fact you may be able to infer pressure or unconscious influence, which it would be impossible to infer from the act of one person by himself. I do not deny that that may be so, and, in that sense, the fact that the inducements are used by more persons than one, may become a material element, but it is excluded in the present case, because the learned judge has found on the facts in this case that there was no undue pressure or undue influence of any sort. Therefore, in this case at any rate, the fact that the persuasion was used by several people acting together is immaterial. But then it is suggested that what was done was in pursuance of an unlawful conspiracy because the parties in question were all members of the association, the rules of which include a rule to this effect: "On an employe leaving an employer who is a member of the association, the employer shall, if desirous, report the same to the secretary who shall advise all the members, and no other member of the association shall employ, or sup ply him for twelve months." I confess I cannot follow that.

"Unlawful conspiracy" was defined by Willes, J., in this way: "conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means." That is to say, to be a conspiracy-that is an unlawful conspiracy, one which gives rise to either an indictment or a right of action-it must have an unlawful object, that is, the act which it is intended to bring about must be in itself unlawful, or if not in itself unlawful then it must be brought about by

(5) Mulcahy v. R. (1868), L. R. 3 H. L. 317.

Under Section 3054 of the Civil Code of California, a bank or banker has a general lien, dependent upon possession, upon all property in its or his hands belonging to a debtor-customer, for the balance due to it or him from such customer in the course of business. And where the bank or banker holds a mature or a past-due negotiable instrument of a depositor, a general deposit of such customer-debtor may be applied in discharge of such mature or past-due obligation.

Under the Uniform Negotiable Instruments Act, passed by the California legislature and approved on June 1, 1917, it is held to be the duty of a bank or banker to apply a general deposit in discharge of pastdue obligations on negotiable instruments of the depositor which are held by the bank, and that the failure to make such application, but permitting the depositor to checkout or withdraw his deposit without first discharging his obligation on the past-due paper, releases an accommodation indorser from his liability on his contract of indorsement under the present Section 3110 of the Civil Code, which is Section 22 of the

(1) All copyright interests reserved by James M. Kerr.

(2) The Alabama legislature adopted, in 1907, the Uniform Negotiable Instrument Act proposed by the American Bar Association, so that the courts of Alabama are controlled by the same statutory provisions, on this subject, as the California courts are controlled now. The holding above set forth was made in the case of Tatum v. Commercial Bank and Trust Co., 193 Ala. 120, L. R. A. 1916C, 767, 69 So. 508, but in that case the note was payable in Kentucky, and there was no proof that the Uniform Negotiable Instrument Act was in force in that State, so that the decision is not, under N. I. Act.

Uniform Negotiable Instruments Law, as proposed by the Conference of Commissions on Uniform State Laws.

The liability of an indorser in due course, or of a surety upon an instrument and not a principal contracting party thereby, stands upon a different footing, it seems. The discharge of persons secondarily liable upon a negotiable instrument is governed by the present Section 3201 of the California Civil Code, which is Section 120 of the Uniform Negotiable Instrument Act as drafted and advocated by the American Bar Association's Commission. This section enumerates the acts and things which will discharge a person secondarily liable, but does not specify among these things the failure of a bank to apply a general deposit of the maker or principal obligor in discharge of the obligation of the customer-debtor.

In some of the states, as in Oklahoma,3 a surety may require his creditor to proceed against the principal obligor, or to pursue any other remedy in his power which is not open to the surety and which he cannot pursue himself, and which would lighten the burden of the surety; and in case the creditor fails or neglects to proceed against the principal debtor, or to pursue the other remedy open to him, as desired by the surety, such surety will be exonerated to the extent that he is injured by such failure or neglect of the creditor. Such a statutory provision is not in conflict with Section 3201 of the California Civil Code (§ 120, W. N. J. Law), but is an enlargement of the grounds of discharge as therein enumerated.1

In the absence of any aiding statute on the subject, what is the effect, as to persons secondarily liable, of the failure of a bank, which is the owner of a note or other commercial paper upon which there are indorsers or sureties, and which bank, at the maturity of such debt, is indebted to the

principal maker or obligor on a general deposit in an amount equal to or in excess of the due-indebtedness on the commercial paper, and the bank neglects to apply the general deposit-indebtedness to the satisfaction of the commercial paper, but permits such general deposit to be checked out or withdrawn?

The general rule, which is practically universal, is to the effect that a creditor who has in his hands means of paying his debt out of the creditor's property and fails to so apply the property, but relinquishes his security upon the debtor's property, thereby discharges, pro tanto, all persons secondarily liable, excepting always those cases in which there was consent to and concurrence in the conduct of the creditor by such persons secondarily liable. In other words,

(5) See, among other cases: Cullen V. Emanuel, 1 Ala. 23, 34 Am. Dec. 757; Perrine v. Fireman's Ins. Co., 22 Ala. 575; Dawson v. Real Estate Bank, 5 Ark. 283; Montgomery v. Sayre, 100 Cal. 182, 38 Am. St. Rep. 271, 34 Pac. 646; Eppinger v. Kendrick, 114 Cal. 630, 46 Pac. 613; Day v. McPhee, 41 Colo. 467, 93 Pac. 670; First Nat. Bank v. Watt, 7 Idaho 510, 64 Pac. 22 Phares v. Barbour, 49 Ill. 370; Kirkpatrick v. Howk, 80 Ill. 122; Sample v. Cochran, 82 Ind. 260; Wasson v. Hodshire, 108 Ind. 26, 8 N. E. 621; Redlon v. Heath, 59 Kan, 255, 52 Pac. 862; Young Men's Christian Assoc. v. United States Fidelity & Guaranty Co., 90 Kan. 332, 133 Pac. 894; Royster v. Heck, 14 Ky. L. Rep. 266; Provan v. Percy 11 La. Ann. 179; Gay v. Blanchard, 32 La. Ann. 497; Springer v. Toothaker, 34 Me. 381, 69 Am. Dec. 66; Cummings v. Little, 45 Me. 183; Baker v. Briggs, 25 Mass. (8 Pick.) 122, 19 Am. Dec. 239; Finnegan v. Janeway, 85 Minn. 384, 80 N. W. 4; C. Gotzian & Co. v. Heine, 87 Minn. 429, 92 N. W. 398; Ferguson v. Turner, 7 Mo. 497; State Bank v. Bartle, 114 Mo. 726, 21 S. W. 816; Bronson v. McCormick Harvesting-Machine Co., 52 Neb. 342, 72 N. W. 312; Stewart v., American Exchange Bank, 54 Neb. 461, 74 N. W. 865; Pierce v. Atwood, 64 Neb. 92, 89 N. W. 669; Morgan v. Salmon, 18 N. M. 72, 135 Pac. 553; Griswold v. Jackson, 2 Edw. Ch. (N. Y.) 461; Third Nat. Bank v. Shields, 55 Hun (N. Y.) 274, 8 N. Y. Supp. 298; Nelson v. Williams, 22 N. C. (2`Dev. & B. Eq.) 118; Smith v. McLeod, 38 N. C. (3 Ired. Eq.) 390; Johnson v. Jones, 39 Okla. 323, 135 Pac. 12; Brown v. Rathburn, 10 Oreg. 158; Appeal of Neff, 9 Wats & S. (Pa.) 36; Bank of Gettysburg V. Thompson, 3 Grant Cas. (Pa.) 114; Everly v. Rice, 20 Pa. St. 297; Fegley v. McDonald, 89 Pa. St. 128; Molaka v. American Fire Ins. Co., 29 Pa. Super. Ct. Rep. 149; Hoss v. Crouch (Tenn. Ch. App.), 48 S. W. 724; Kain v. Cummings, 13 Tex. Civ. App. 198, 36 S. W. 770; Shannon v. McMullin, 25 Gratt. (Va.) 211; Evans

a creditor must apply to the payment of his debt, or hold in trust for sureties and other persons secondarily liable, all securities which he may receive for that purpose by contract, or by operation of law; and where a surety is compelled to discharge the indebtedness, he is entitled to be subrogated to such sureties. The same is true of an indorser, even though a judgment may have been taken against him on the indebtedness."

But the question whether a general deposit on account in a bank, which is the holder of mature or of past-due commercial paper, is within the above rule, is one upon which the decisions are not harmonious. One line of decisions adopt the doctrine that a general deposit in a bank is a security for, or the means of satisfaction of, a note or other commercial paper of the depositor, which paper is mature or pastdue and held by the bank; and that permitting the debtor-depositor to check-out or withdraw such deposit without having first discharged his past-due obligation, has the same effect, upon persons secondarily liable, as the surrender to the principal debtor of a collateral security pledged for the payment of the debt would have. Some of the

v. Kister, 35 C. C. A. 28, 92 Fed. 828; Wood v. Brown, 43 C. C. A. 474, 104 Fed. 203; Brown v. First Nat. Bank, 66 C. C. A. 293, 132 Fed. 450. (6) Glazier v. Douglass, 32 Conn. 393. (7) McDowell V. Bank of Wilmington & Brandywine, 1 Harr. (Del.) 369.

(8) See Second Nat. Bank v. Hill, 76 Ind. 223. 40 Am. Rep. 239; Falkner v. Cumberland Valley Bank, 14 Ky. L. Rep. 923; Fordsville Banking Co. v. Thompson, 26 Ky. L Rep. 534, 82 S. W. 251; Bank of Taylorsville v. Hardesty, 28 Ky. L Rep. 1285, 91 S. W. 729; Burgess v. Deposit Bank. 30 Ky. L. Rep. 177, 97 S. W. 761; Planters' State Bank v. Schlamp, 30 Ky. L. Rep. 473, 99 S. W. 216; Pursiful v. Pineville Banking Co., 97 Ky 154, 53 Am. St. Rep. 409, 30 S. W. 203; Bank of Marysville v. Windisch-Muhlhauser Brewing Co... 50 Ohio St. 151, 33 N. E. 1054; Commercial Nat. Bank v. Henninger, 105 Pa. St. 496; German Nat. Bank v. Foreman, 138 Pa. St. 474, 21 Am. St. Rep. 908, 21 Atl. 20; Mechanics' & Traders' Bank v. Seitz, 150 Pa. St. 632, 30 Am. St. Rep. 853, 24 Atl. 356; Newbold v. Boon, 6 Pa. Super. Ct. Rep. 511.

"If the bank, at the maturity of a note held by it, holds funds that, by the scratch of a pen, it could apply upon the note, thus securing itself.