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another bank drawn to his order and indorsed in blank. The defendant placed the full amount to the plaintiff's credit subject to check and the plaintiff drew on it. A month later the defendant sought to charge the amount to the plaintiff's account, on the ground that the check had been lost in the mail. Held, that the bank cannot charge it back. Spooner v. Bank of Donalsonville, 82 S. E. 625 (Ga.).

The nature of the liability of a bank in which a check indorsed in blank is deposited for collection properly depends upon the intent of the parties. Pre, sumptively, however, the transaction should not be regarded as a sale, but rather as an agency, or more accurately, as a trust, since legal title passes by the indorsement. Scott v. Ocean Bank, 23 N. Y. 289. See 18 Harv. L. Rev. 300. Nor is the additional fact that the depositor is allowed to draw against the check at once conclusive of a sale. Moors v. Goddard, 147 Mass. 287. Contra, Hoffman v. First National Bank, 46 N. J. L. 604. See 13 Harv. L. REV. 416. Under this view, the bank should not be liable for the amount of the check unless itself at fault. Many cases, however, agree with the principal case, and hold the transaction presumptively a sale, at least when credit is given the depositor. Metropolitan National Bank v. Loyd, 90 N. Y. 530; Burton v. United States, 196 V. S. 283; Aebi v. Bank of Evansville, 124 Wis. 73, 102 N. W. 329. A question then arises as to the effect of an arrangement between the parties that the bank may charge back if the check proves uncollectible. Here, too, the courts differ; but many hold that the result is to make the bank a mere agent, and not a debtor. Fanset v. Garden City State Bank, 24 S. D. 248, 123 N. W. 686; Davis v. Butters Lumber Co., 130 N. C. 174, 41 S. E. 95. Properly, however, such an arrangement should not negative what would otherwise be regarded as a sale, for it simply provides a short cut for enforcing the indorsee's rights against the indorser. Burton v. United States, supra; Aebi v. Bank of Evansville, supra. On that construction, an arrangement for charging back in the principal case would leave the transaction still a sale, but the case would not even then be a proper one for the bank to charge the depositor as its indorser.

CARRIERS — PASSENGERS: EJECTION OF PASSENGERS — REFUSAL TO PAY UNLAWFUL FARE. An electric railway company interpreted the two franchises under which it was operating as authorizing a fare of fifteen cents between two points. The plaintiff, upon refusing to pay more than ten cents to ride this distance, was ejected from a car and sued the company for assault and battery. The court found that upon a proper construction of the franchises ten cents was the maximum lawful fare. Held, that the plaintiff may recover. Raynor v. New York & L. I. Traction Co., 86 Misc. (N. Y.) 201, 149 N. Y. Supp. 151 (Nassau County Ct.).

At present the authorities tend to decide in favor of the passenger the old conflict concerning a carrier's liability for ejecting a passenger whose failure to produce a proper ticket is the fault of the carrier's agents. See 20 Harv. L. REV. 137. Thus a passenger who has received an invalid ticket or an improper street car transfer may generally recover for his consequent ejection. New York, L. E. & W. R. Co. v. Winter's Adm'r, 143 U. S. 60; Murdock v. Boston Ey Albany R. Co., 137 Mass. 293. Contra, Norton v. Consolidated Ry. Co., 79 Conn. 109, 63 Atl. 1087. Cf. Shelton v. Erie R. Co., 73 N. J. L. 558, 66 Atl. 403. Again, the weight of authority is that a passenger who has been denied an opportunity to buy a ticket may recover if ejected for refusing to pay the higher cash fare. Forsee v. Alabama G. S. R. Co., 63 Miss. 66; Ammons v. Southern Ry. Co., 138 N. C. 555, 51 S. E. 127. Contra, Monnier v. New York Central & H. R. R. Co., 175 N. Y. 281, 67 N. E. 569. In spite of the carrier's primary fault, the real necessity for a regulation requiring the production of tickets, and the possible application of the rule against avoidable damages, raise serious doubts as to the advisability of giving the passenger any other protection than a recovery for the carrier's original neglect of duty. See 2 WYMAN, PUBLIC SERVICE CORPORATIONS, § 889 et seq.; 16 Harv. L. Rev. 139. But in any event the result in the principal case is unimpeachable. The resistance here was not to the enforcement of a regulation of the carrier, but to the collection of a fare in excess of that allowed by law. It is well settled that in such a case one may recover for being ejected. Adams v. Union R. Co., 21 R. I. 134, 42 Atl. 515.

CONSTITUTIONAL LAW — DUE PROCESS OF LAW – RIGHT TO HEAR ADVERSE EVIDENCE IN HEARING BEFORE ADMINISTRATIVE BOARD. -- On an appeal to the English Local Government Board, made under the Housing Acts (53 & 54 Vict., c. 70; 9 Edw. VII., c. 44), from a decision refusing to terminate a closing order against a tenement house, the appellant was heard but was refused access to certain adverse reports which the Board had as evidence against him. The Board was given authority to formulate rules of procedure. Held, that the appellant had a proper hearing. Local Government Board v. Arlidge, Weekly Notes, No. 30, p. 328 (House of Lords).

For a discussion of this most important decision and its bearing on the question of the procedure in hearings before administrative boards, see Notes, p. 198.


DISCOVERY PRIVILEGE NOTES OF PREVIOUS LEGAL PROCEEDINGS MADE IN ANTICIPATION OF FUTURE LITIGATION. — In anticipation of further litigation, the defendant had had shorthand notes taken of the proceedings against him by the owner of the taxicab with which his automobile had collided. In an action against the same defendant arising out of the same collision, the plaintiff asks discovery and inspection of the notes in the possession of the defendant. Held, that discovery will be ordered. Lambert v. Horne, III L. T. R. 179 (C. A.).

This case is in accord with the great weight of English authority. Rawstone v. Preston Corporation, 30 Ch. D. 116; In re Worswick, 38 Ch. D. 370; Nicholl

Jones, 2 H. & M. 588; Ainsworth v. Wilding, (1900) 2 Ch. D. 315. Contra, Nordon v. Defries, 8 Q. B. D. 508. There is no American authority directly in point, although shorthand notes of proceedings before the grand jury have been held privileged, on the ground that such proceedings are not publici juris. State v. Rhoads, 81 Oh. St. 397, 91 N. E. 186. It is true that the privilege protecting communications between attorney and client covers material collected for submission to a solicitor or information obtained by the solicitor for the purposes of litigation. Southwark & Vauxhall Water Co. v. Quick, 3 Q. B. D. 315; Lyell v. Kennedy, 27 Ch. D. 1. But proceedings in open court are in no way privileged or confidential. In re Worswick, supra; People v. Petersen, 60 N. Y. App. Div. 118. And since the words themselves are not privileged, the principal case properly orders discovery of a physical reproduction of them, which involved no peculiar skill or knowledge. For the law cannot deal justly between the parties if either has an unfair advantage, and so long as no hard and fast rule of privilege stands in the way, the court should require any disclosures necessary to aid in reaching an equitable result.

DOMICILE — HUSBAND AND WIFE: POSSIBILITY OF SEPARATE DOMICILE. A wife lived in New York for twenty-six years apart from her husband, who lived outside the state. She had made no attempt to obtain a decree of separation, nor were grounds therefor shown. Held, that she had acquired a domicile in New York. In re Crosby's Estate, 85 Misc. (N. Y.) 679 (Surr. Ct., N. Y. County).

For a discussion of the wife's rights to acquire a domicile apart from her husband without showing cause for divorce, see this issue of the REVIEW,

p. 196.

EMINENT DOMAIN — FOR WHAT PURPOSES PROPERTY MAY BE TAKEN LAND CONDEMNED BY RAILROAD USED FOR PRIVATE WAREHOUSE. - A railroad condemned for its right of way land owned in fee by the plaintiff. Subsequently the railroad leased the land for private warehouse purposes to the defendant, who agreed to prefer the railroad in routing freight. The plaintiff now seeks to recover possession. Held, that he cannot recover. Coit v. OwenbyWofford Co., 81 S. E. 1067 (N. C.).

The principal case takes the ground that, while the land was used directly for a private business, the chief purpose was to afford facilities for the lessee, as a patron of the road, in the storage, receipt, and shipment of freight. If the lessee was one of the largest shippers at that point, and the erection of the warehouse would greatly relieve the facilities for general freight, the lease of railroad land with that end in view would be strictly parallel to the construction of a spur track which reaches only a single large shipper, but improves traffic conditions in general by affording increased trackage facilities and relieving congestion at the point. Hairston v. Danville & Western Ry. Co., 208 U. S. 598. Such a warehouse, again by analogy to the spur track, would be under obligation to serve the general public in case demand were made. See Union Lime Co. v. Chicago & N. W. Ry. Co., 233 U. S. 211, 220.

Unless these facts are assumed as the basis of the present decision, the result must be regarded as wrong. For an ordinary private warehouse, which bears no relation to the transportation facilities of the railroad, is undoubtedly an improper user. Proprietors of Locks and Canals on Merrimack River v. Nashua & Lowell R. Co., 104 Mass. 1. A public warehouse, on the other hand, would unquestionably have been a public purpose. Gurney v. Minneapolis Union Elevator Co., 63 Minn. 70, 65 N. W. 136.

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EXECUTORS AND ADMINISTRATORS TITLE - EFFECT OF REVOCATION OF ADMINISTRATION UPON BONÂ FIDE PURCHASER'S TITLE TO ASSETS. — An administrator sold assets to the defendant, a bona fide purchaser. Thereafter a will was discovered, which appointed the plaintiff executor. He probated the will, had the administration revoked, and now sues the defendant to recover the property. Held, that he may not recover. Hewson v. Shelley, (1914) 2 Ch. 13 (C. A.).

The grant of probate or administration by a court of competent jurisdiction is a judicial act which, until revoked, is conclusive of the rights determined. Prosser v. Wagner, i C. B. N. S. 289; In re Ivory, 10 Ch. D. 372. Consequently, payment of a debt to a regularly appointed executor or administrator is a good discharge, although the probate or grant is afterwards revoked. Allen v. Dundas, 3 T. R. 125. In spite of this principle, the earlier English authorities held that a title acquired under a grant of administration was void against the executor of a subsequently discovered will. The theory was that on the death of the testator title had vested in the executor by force of the will, and that, therefore, the grant of administration conferred no title upon the administrator. Graysbrook v. Fox, 1 Plowd. 275; Ellis v. Ellis, (1905] 1 Ch. 613. But American courts have never recognized this exceptional doctrine. Kittredge v. Folsom, 8 N. H. 98. See Monroe v. James, 4 Munf. (Va.) 194, 196. If the purchaser's title were thus liable to be adjudged worthless, the effective administration of estates would be impeded and respect for judicial acts considerably impaired. It is well, therefore, that the technical English doctrine, born of a time when the ecclesiastical courts were held in jealous disfavor, has been definitely repudiated by the principal case.

INJUNCTIONS — NATURE AND SCOPE OF THE REMEDY - INJUNCTION AGAINST CONTINUING TRESPASS WHERE DAMAGES ARE NOMINAL. - The defendant, the owner of a water-power plant, built a dam in such a way that the level of the stream was raised as it flowed through a chasm owned by the plaintiff. The property encroached upon was of no possible use to the owner, and there had been a judicial determination that the damages were only nominal. The injunction sought by the plaintiff against the continuance of the trespass would cause serious inconvenience to the defendant and to the public. Held, that the plaintiff is not entitled to injunctive relief. McCann v. Chasm Power Co., 211 N. Y. 301, 105 N. E. 416.

The inadequacy of the legal remedy and the danger of a multiplicity of suits establishes the jurisdiction of equity to restrain a continuing trespass. Goodson v. Richardson, L. R. 9 Ch. App. 221; Delaware, L. & W. R. Co. v. Breckenridge, 57 N. J. Eq. 154, 41 Atl. 966. But whether it will be exercised where the damages are only nominal, and the resulting inconvenience to the defendant great, has caused much diversity of judicial opinion. The English authorities argue that the owner's damages from a permanent invasion of his land are of necessity substantial, because of his present power to exact a high price from the trespasser for the coveted privilege, and the danger of the ultimate acquisition of the right by adverse user. Goodson v. Richardson, supra; Powell v. Aiken, 4 K. & J. 343. But the adverse user is easily interrupted and the policy of the principal case seems on the whole more equitable than the rigid rule of the English courts. The danger that it may encourage wilful appropriation of another's land undoubtedly exists. But this seems outweighed by the danger that by granting an injunction a court of equity might be furnishing the owner with a weapon for extorting an unconscionable price for the privilege. Weight should be given also to the consideration that here public interest is against granting an injunction. Conger v. New York, etc. R. Co., 120 N. Y. 29. On the balance of convenience, therefore, equity seems justified in refusing its extraordinary relief. Bassett v. Salisbury Manufacturing Co., 47 N. H. 426; Crescent Mining Co. v. Silver King Mining Co., 17 Utah 444, 54 Pac. 244; McCullough v. Denver, 39 Fed. 307. Contra, Richards v. Dower, 64 Cal. 62, 28 Pac. 113.

INSURANCE ACCIDENT INSURANCE - MEANING OF “ACCIDENTAL” IN THE POLICY. - The insured saw a man accidentally burned to death, and was so affected that he died shortly afterward of apoplexy, produced either by the intense excitement of witnessing the fire or by a fall caused by fainting from such excitement, and perhaps by both. The beneficiary now sues upon an insurance policy payable in the event of the “accidental death” of the insured. Held, that the trier of the facts could reasonably find the death to have been accidental. International Traveler's Ass'n v. Branum, 169 S. W. 389 (Tex. Civ. App.).

The word "accident" in insurance policies has been productive of frequent litigation. Its meaning is purely a question of fact, determined by what an ordinary reasonable man would consider an accident in the popular sense. United States Mutual Accident Ass'n v. Barry, 131 U. S. 100, 121. See 24 Harv. L. REV. 221. Death from disease, of course, is ordinarily not an accident. Sinclair v. Maritime, etc. Ins. Co., 3 E. & E. 478. But when the disease is itself directly attributable to a previous accident, as where a fall produces apoplexy, the death is justly considered accidental. National Benefit Ass’n v. Grauman, 107 Ind. 288. This authority would probably cover the principal case, assuming that the fall was responsible for the apoplexy. For a sudden and temporary physical disturbance like the fainting spell is properly not a disease. · Manufacturer's Accident Indemnity Co. v. Dorgan, 58 Fed. 945, 955; Meyer v. Fidelity & Casualty Co., 96 Iowa 378,65 N. W. 328. The death seems no less accidental

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on the assumption that the excitement produced the apoplexy. In a sense, deliberately witnessing an accident is not an accident, and the natural excitement of such an occasion is perhaps not accidental. Nevertheless the fatal physical reactions were induced not by forces arising primarily within the system, but by something external, by a violent spectacle which affected the beholder in a most abnormal and improbable way. See Yates v. South Kirby, etc. Collieries Ltd., (1910) 2 K. B. 538. Though the outside occurrence operated in mental channels rather than by direct physical contact, the unexpected effect should not be deemed any less an accident. And so it seems to have been held. McGlinchy v. Fidelity & Casualty Co., 80 Me. 251, 14 Atl. 13; Pugh v. London, B. & S. C. Ry. Co., (1896] 2 Q. B. 248.

LEGACIES AND DEVISES - DISCLAIMER BY PAROL. — A testatrix, survived by sons and daughters, had devised and bequeathed her entire estate to the daughters. Shortly after her death the will was destroyed by the sons in the presence of the daughters and without objection on their part. Within a few days the daughters, without consideration, signed an informal writing waiving all rights under the will. They now sue for their interest thereunder. Held, that they cannot recover. Dueringer v. Klocke, 86 Misc. (N. Y.) 404, 149 N. Y. Supp. 332.

The decision takes the ground that the destruction of the will was a valid disclaimer, of which the written waiver was only a memorandum. In this country a parol disclaimer by a devisee or legatee is effective. Defreese v. Lake, 109 Mich. 415, 67 N. W. 505; Wonsetler v. Wonsetler, 23 Pa. Super. Ct. 321; Tarr v. Robinson, 158 Pa. 60. Contra, Bryan v. Hyre,

Rob. (Va.) 94. The law is probably the same in England, but the point has not been definitely decided. See Townson v. Tickell, 3 B. & Ald. 31, 38; Doe d. Smyth v. Smyth, 6 B. & C. 112, 117; SHEPPARD'S TOUCHSTONE, 452; 4 KENT, COMMENTARIES, 534. Bryan v. Hyre, supra, is often cited for the proposition that a disclaimer of realty can only be effected by deed, but the case merely upheld a charge that such disclaimer must be in writing. There is no modern authority to support that decision, although the ancient rule was that a disclaimer must be by matter of record. See Butler and Baker's Case, 3 Coke 25, 26 a; 8 VIN. ABR., DISAGREEMENT. Whether a given set of acts constitutes a disclaimer is a question of fact. Defreese v. Lake, supra. And the renunciation must be unequivocal. Webster v. Gilman, Fed. Cas., No. 17,335. The principal case is clearly correct, although on the ground taken by the court, that the destruction of the will alone constituted a disclaimer, it is arguable that the question should have been left to the jury. A devisee's or legatee's situation is to be distinguished from an heir's, for when property passes by descent, title vests without any possibility of renunciation. Watson v. Watson, 13 Conn. 83.

LIMITATION OF ACTION — NATURE AND CONSTRUCTION OF STATUTE LEGAL DISABILITY: WHETHER PLAINTIFF'S PROOF IN BANKRUPTCY STOPS RUNNING OF STATUTE. — A creditor whose right accrued just before the debtor's bankruptcy in 1904 proved his claim in bankruptcy and was paid dividends upon it. In 1908 he brought suit in the state court, and this action was continued until in 1910 the debtor's application for a discharge in bankruptcy was refused. The period of limitation under the state statute was three years, but any person under a legal disability might bring an action within a year after the disability was removed. Held, that the plaintiff's action is barred. Simpson v. Tootle, etc. Co., 32 Am. B. R. 551 (Okla.).

Whether the pendency of bankruptcy proceedings against a defendant constitutes a legal disability upon the plaintiff has not been decided previously under the present bankruptcy act. Under the law of 1867 a creditor who

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