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ruined. Here there is not always the protection of public opinion, so potent in the case of the country storekeeper. There is the strongest social interest to be secured, and it can be secured without substantial burden on the manufacturer, for to compel him to sell without discrimination would be only to compel him to do what in the general understanding of the business community he has undertaken to do by entering the business. Yet here also the common law, with its stern individualism, has refused to lend its aid.


In a note in a previous issue,5 discussing the Cream of Wheat case, a method was suggested by which compulsory sales could be effected in such a case, without running counter to any constitutional difficulties. In the Michigan Law Review for January the conclusions reached in that note are vigorously criticized. The writer concedes that the method proposed would in all probability be constitutional, but the policy of the plan is attacked on the ground that it would enable such a company as the plaintiff in the Cream of Wheat case, by selling to the public below cost for the purpose of attracting customers, to "make it impossible for ordinary retailers to carry these goods, .. thus perhaps demoralizing retail trade, crippling manufacturers, with ultimate approach to, instead of prevention of, monopoly."

The undesirability of such a result may be conceded; but is the result a necessary one? Because a retailer is to be given the power to compel a manufacturer to sell to him without discrimination, it does not follow that he must be allowed to use that power to wreck the retail trade. If price cutting is an evil, it can be prevented, as, for instance, by bringing it within the definition of "unfair methods of competition," prohibited by the Trade Commission Law. And even if statutory enforcement of a price-maintenance system is thought inadvisable, the court or commission charged with the enforcement of a compulsory sales law might well be empowered to refuse relief if the complainant threatens to use his power in an anti-social manner, just as a court of equity now refuses relief if the complainant's conduct is unconscionable. To lay down a flat rule, and enforce it though the heavens fall, smacks of a stage of our law when legal principles had not yet attained diversification, and the science of administration was as yet unborn. As Mr. Justice Holmes has said in another connection, "between the variations... that I suppose to exist, and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years.' 199

5 29 HARV. L. Rev. 77.

6 14 MICH. L. REV. 228.

738 STATS. AT LARGE, 717, 719. This seems only a phase of the infusion of business morality into law, for which Dean Wigmore has made so powerful a plea. See 10 ILL. L. REV. 178, especially at 186 ff.

8 Thus in Worden v. California Fig Syrup Co., 187 U. S. 516, where the owner of a patent medicine asked the court to enjoin the defendant from appropriating his good will by fraudulent advertising, the court denied relief, on the ground that the plaintiff himself was guilty of deceptive advertising.


Leroy Fibre Co. v. Chicago, M. & St. P., Ry., 232 U. S. 340, 354.


ADMIRALTY PRACTICE RIGHT TO WITHDRAW SUIT AFTER DEFENDANT HAS PETITIONED FOR LIMITATION OF LIABILITY. - The claimant brought suit for the loss of her baggage on the "Titanic." The defendant filed a petition for limitation of liability under a United States statute. The claimant now desires to withdraw her suit, presumably to sue in England where the damages would be higher. Held, that the suit may be withdrawn on payment of costs. The Titanic, 225 Fed. 747 (C. C. A., 2d Circ.).

At common law a plaintiff may voluntarily dismiss his suit at any time before judgment; and his reasons for discontinuing are immaterial. Banks v. Uhl, 6 Neb. 145; Petition of Buller, 101 N. Y. 307, 4 N. E. 518. And merely that the plaintiff's claim has been resisted does not deprive him of his right to dismiss the action. Wilborn v. Elemendorf, 40 S. W. 1059 (Tex.); McCabe v. Southern Ry. Co., 107 Fed. 213. But a dismissal will not be permitted when the defendant asks affirmative relief such as a set-off or counterclaim. Grignon v. Black, 76 Wis. 674, 45 N. W. 122; Boyle v. Stallings, 140 N. C. 524, 53 S. E. 346. Contra, Huffstutler v. Louisville Packing Co., 154 Ala. 291, 45 So. 418. A petition in admiralty for the limitation of liability is like recoupment in that it makes no affirmative claim for damages, but seeks merely to reduce the amount for which the shipowner is liable. On the other hand, all other suits against the petitioner are temporarily enjoined and, if the petition is granted, the injunction is made perpetual. See BENEDICT, ADMIRALTY, §§ 525, 526. In this respect it resembles a cross bill in equity which is frequently held to prevent the plaintiff's dismissing the suit. Tift v. Keaton, 78 Ga. 235, 2 S. E. 690; Pullman's Palace-Car Co. v. Central Transportation Co., 49 Fed. 261. Contra, Waite v. Wingate, 4 Wash. 324, 30 Pac. 81. Thus, if the petition is to be regarded as a mere defense to the claim for damages, with the perpetual injunction only an incident to this relief, the principal case can be supported; but if it is regarded as giving affirmative relief apart from resistance to the present action, the defendant was unjustly prejudiced by the permission given to the claimant to withdraw her suit.

APPEAL AND ERROR - INVITED ERROR VERDICT WITHOUT EVIDENCE ON INSTRUCTIONS REQUESTED BY APPELLANT. -The defendant, on trial for murder, was convicted of manslaughter under an instruction requested by himself. The instruction was not justified by any evidence, though there was evidence capable of supporting a conviction of murder. Held, that he is entitled to a new trial. Griggs v. State, 86 S. E. 726 (Ga.).

Erroneous or inappropriate instructions cannot be objected to by the party that requested them. Flowers v. Helm, 29 Mo. 324; Threlkeld v. State, 128 Ga. 660, 58 S. E. 49. Instructions are meant to be acted on by juries: if that on which the jury ought to act is free from attack by the defendant, their action on it ought to be. Under the facts, the verdict of manslaughter can only have been an act of mercy by a jury who really believed defendant guilty of the higher crime; to allow an appeal on the ground that the jury was improperly kind to him at his request seems an unnecessary lenience. Their error was as much "invited error" as was the error of the court in instructing them. And it is a common holding that a verdict cannot be impeached in an appellate court as against evidence when the complaining party has failed to move to take the question from the jury. McDonnell v. United States, 133 Fed. 293; Browning v. Dorton, 143 Mo. App. 249, 128 S. W. 230; Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27. See State v. Kiger, 115 N. C. 746, 750, 20 S. E.

456, 457. In the outcome, defendant was sent back to his trial for murder, as could be done under prior Georgia holdings. Brantley v. State, 132 Ga. 573, 64 S. E. 676. In other jurisdictions he could be tried again only for manslaughter. State v. Martin, 30 Wis. 216; State v. Dowling, 84 N. Y. 478. See Trono v. United States, 199 U. S. 521; 19 HARV. L. REV. 300. In such a jurisdiction a ruling like that in the principal case would be very unfortunate indeed.

ASSIGNMENTS FOR CREDITORS VALIDITY ASSENT OF CREDITORS. Pursuant to a resolution adopted by his creditors, the debtor executed and delivered a deed of assignment for the benefit of his creditors to the trustee selected by them. Before communication of the execution of the deed to any creditor, a judgment creditor who had not joined in the resolution levied on the property covered by the deed. Held, that as the deed passed no title to the trustee, the judgment creditor should succeed. Ellis & Co. v. Cross, 113 L. T. R. 503 (K. B.).

Under the view generally accepted in the United States, a deed of assignment for the benefit of creditors is enforceable upon execution and delivery, consent thereto on the part of creditors being either unnecessary or presumed. Nicoll v. Mumford, 4 Johns. Ch. (N. Y.) 522; Hyde v. Olds, 12 Oh. St. 591; Tompkins v. Wheeler, 16 Pet. (U. S.) 106. See 11 HARV. L. REV. 412; BURRILL, ASSIGNMENTS, 6 ed., § 257. In England and Massachusetts, however, the assent of creditors is required. In Massachusetts, the assignment is held a fraudulent conveyance until assented to, and is then validated to an amount equal to the aggregate claims of the creditors who assented. Widgery v. Haskell, 5 Mass. 144. In England, no title passes to the trustee unless one or more creditors subsequently assent to the deed. Until such assent the deed is treated as creating a revocable power given to the "trustee" to dispose of the property for the benefit of the debtor. Garrard v. Lauderdale, 3 Sim. 1. If the trustee is a creditor, however, it is said that he takes a power coupled with an interest which makes the agency irrevocable and the deed good. Siggers v. Evans, 5 El. & Bl. 367. In the principal case, it is submitted, that the assent given before the execution should be as good as assent after. An analogy is afforded in the law of sales of personal property where consent prior to an act of appropriation is just as good as assent after the act. WILLISTON, SALES, § 274. In Massachusetts this assent would have prevented the deed from being a fraudulent conveyance to the extent of the total claims of the assenting creditors. Cf. Fall River Iron Works v. Croade, 15 Pick. (Mass.) 11, 17. Even in England it has been held that a prior consent would at least have prevented any assenting creditor from treating the assignment as an act of bankruptcy. Ex parte Stray, L. R. 2 Ch. App. 374.

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BILLS AND NOTES DEFENSES NEGLIGENCE OF MAKER SIGNING IN BLANK. The defendant handed his blank note to a friend to hold till further instructions were given. The next day he directed that it be destroyed or returned to him. The note was filled out and indorsed to the plaintiff, a holder in due course, who now sues. Held, that he may recover. Hancock v. Empire Cotton Oil Co., 86 S. E. 434 (Ga.).

The maker of a complete instrument keeps it at his peril, and lack of delivery is no defense to a suit by a bona fide purchaser. Shipley v. Carroll, 45 Ill. 285. Contra, Sheffer v. Fleischer, 158 Mich. 270, 122 N. W. 543. But the maker of an incomplete instrument cannot be subjected to liability unless express or implied authority has been given for filling the blanks. Baxendale v. Bennett, 3 Q. B. D. 525; Ledwich v. McKim, 53 N. Y. 307; Linick v. Nutting & Co., 140 App. Div. 265, 125 N. Y. Supp. 93. Though it is well settled that by delivering an incomplete instrument for negotiation the maker authorizes its completion and is liable to a holder in due course regardless of whether the au

thority was abused, when, as in the principal case, all authority was expressly negatived, the maker can only be held liable if he is precluded by his conduct from denying the validity of the instrument. It is submitted that the bare entrusting of incomplete instruments to a custodian is not such conduct as to subject the maker to liability. Smith v. Prosser, [1907] 2 K. B. 735; but see Putnam v. Sullivan, 4 Mass. 45. For with an incomplete instrument there is no duty of care to prevent its getting into circulation. Baxendale v. Bennett, supra. Even negligence in signing and delivering a blank form not intended. as a negotiable instrument will not support recovery. First Nat. Bank v. Zeims, 93 Ia. 140, 61 N. W. 483. Cf. Costelo v. Barnard, 190 Mass. 260, 76 N. E. 599. There is an exception, however, in the duty owed to the drawee bank not to sign checks in blank. Trust Co. of American v. Conklin, 65 Misc. 1, 119 N. Y. Supp. 367.

BILLS AND NOTES-INDORSEMENT - FORGED INDORSEMENT: WHETHER DRAWEE MAY RECOVER PAYMENT NEGLIGENTLY MADE TO HOLDER. — A drawee bank, negligently disregarding notice by the drawer to stop payment, paid a check, on which payee's indorsement was forged, to a bona fide holder for value. On discovering the forgery the drawee bank seeks to recover from the holder. Held, that the bank cannot recover. National Bank of Commerce v. First National Bank of Coweta, 152 Pac. 596 (Okl.).

Where an indorsement is forged, as the holder never receives title to the check, the true owner may recover from the holder any payment the latter has received. Dana v. Underwood, 19 Pick. (Mass.) 99; Arnold v. Cheque Bank, 1 C. P. Div. 578. If the owner brings no action the drawee is allowed to recover back from the holder. Canal Bank v. Bank of Albany, 1 Hill (N. Y.) 287; Onondaga County Savings Bank v. United States, 64 Fed. 703. See Robarts v. Tucker, 16 Q. B. 560, 578. It is submitted that the correct theory on which such recovery may be permitted is that the drawee sues on the payee's right of action and holds the sum recovered in trust for him. See Ames, "Doctrine of Price v. Neal," 4 HARV. L. REV. 297, 307. But the drawee has been held to lose his right if after discovery of the forgery he delays giving notice to the holder. National Exchange Bank of Providence v. United States, 151 Fed. 402; United States v. Clinton National Bank, 28 Fed. 357. See 2 DANIEL, NEGOTIABLE INSTRUMENTS, 5 ed., § 1371. In England recovery is barred even though notice is given immediately on discovering the forgery. London & River Plate Bank v. Bank of Liverpool, [1896] 1 Q. B. 7. But considerable authority holds that the drawee should recover unless the holder has been prejudiced by the delay. Yatesville Banking Co. v. Fourth National Bank, 10 Ga. App. 1, 72 S. E. 528; Canal Bank v. Bank of Albany, supra. Though on the grounds of business practice a delay in giving notice of a known forgery might in itself defeat recovery, it would be unfortunate to go further and let a negligent failure to discover the forgery bar relief when the holder has been in nowise damaged. In the principal case it is difficult to see how the holder would have benefited had the drawee regarded the drawer's notice.

BILLS AND NOTES PRESENTMENT AND NOTICE OF DISHONOR WAIVER: ASSENT BY INDORSER TO EXTENSION OF TIME. - The plaintiff brings an action against the defendant as indorser of a note on the face of which the latter had written an agreement to remain bound "notwithstanding any extension of time granted the principal, hereby waiving all notice of such extension of time." Three extensions were given to the maker, no notice of which was given to the defendant, nor was any notice of dishonor by non-payment given him when the last extension period had expired. Held, that the indorser's assent to extension constituted a waiver of demand and notice. First National Bank of Henderson v. Johnson, 86 S. E. 360 (Sup. Ct., N. C.).

At common law it is settled that an indorser's consent to an extension of time on a negotiable instrument constitutes a waiver not only of a defense to his liability, but also of demand, and notice at the original date of maturity. Cady v. Bradshaw, 116 N. Y. 188, 22 N. E. 371; Glaze v. Ferguson, 48 Kan. 157, 29 Pac. 396; Norton v. Lewis, 2 Conn. 478. Contra, Michaud v. Lagarde, 4 Minn. 43. If the extension be actually granted, this result presents no difficulty, for then there has been no default. But the same result is reached even where the extension is not actually granted, on the ground that the indorser has shown an unconditional willingness not to have the maker pay on the date of maturity. Sheldon v. Horton, 43 N. Y. 93; National Hudson River Bank v. Reynolds, 57 Hun 307, 10 N. Y. Supp. 669; Jenkins v. White, 147 Pa. St. 303, 23 Atl. 556. The principal case may be supported on this ground, for when the third extension period had matured, the continuing consent to further extensions would thus waive demand and notice at that time, even though a further extension was not granted. The court proceeded on another view which would also justify the result. The consent to an extension of time is held to waive demand and notice even at the extended date of maturity, on the ground that, by waiving demand and notice at the original date of maturity, the indorser has waived the condition which qualifies his promise to pay and has made his promise absolute, assuming thereby the position of a guarantor. Amoskeag Bank v. Moore, 37 N. H. 539; Ridgway v. Day, 13 Pa. St. 208; Barclay v. Weaver, 19 Pa. St. 396. See Shelton v. Horton, supra, 99. But cf. Hudson v. Wolcott, 39 Oh. St. 618, 623; Walker v. Graham, 21 La. Ann. 209. The result on either of these grounds seems an arbitrary exception to the equally arbitrary rule which discharges the indorser from all liability if no notice of dishonor be given him, even though he suffer no injury through such neglect. Nor does the Negotiable Instruments Law appear to alter the result. Sections 120, 89, 109 and 110 which are applicable to the case merely enact the general principles of the common law as to waiver of demand and notice without attempting to enumerate the many means by which demand and notice may be impliedly waived. See First National Bank v. Gridley, 112 App. Div. 398, 405, 98 N. Y. Supp. 445, 450. Thus if there would be a waiver at common law there should be under the act.

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CONFLICT OF LAWS REMEDIES - LIMITATION OF ACTIONS - LIMITATION IN FEDERAL EMPLOYERS' LIABILITY ACT AS EXTINGUISHING THE CAUSE OF ACTION. - Suit had been brought in a state court in North Carolina on a cause of action arising under the Federal Employers' Liability Act. The act provides "that no action shall be maintained... unless commenced within two years...." The state Statute of Limitations allows three years' time. More than two but less than three years had elapsed between the accrual of the cause of action and the commencement of the suit. A judgment entered for the plaintiff was reversed in the United States Supreme Court. Atlantic Coast Line R. Co. v. General Burnette, 239 U. S. 199.

Statutes of Limitation are generally remedial, and hence without extra-territorial effect. Le Roy v. Crowninshield, 2 Mason 151; O'Shields v. Ga. Pac. Ry. Co., 83 Ga. 621, 10 S. E. 268. But where a statute creating a new right limits the time in which action thereon may be brought, the limitation is construed as curtailing the right itself, and therefore governs any action based on that right, although brought in another jurisdiction. Pittsburg, etc. Ry. Co. v. Hine, 25 Oh. St. 629; The Harrisburg, 119 U. S. 199. The North Carolina court, when the case was before it, refused to construe the limitation in the Liability Act in this manner, both on the ground that Congress, by the act, had intended to facilitate the recovery of damages by employees, not to limit their rights, and that the act conferred no right but merely withdrew a defense. See principal case, 163 N. C. 186, 192, 79 S. E. 414, 416. But the abrogation of a defense

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