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common law contribution is allowed between the co-principals of an agent who has made them liable for a tort, unless the principals were personally culpable. Wooley v. Batte, 2 C. & P. 417; Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320.

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TO ATTEND INJURED TRESPASSER. The defendant's station agent engaged the plaintiff to attend a man who had been seriously injured by one of defendant's trains. The plaintiff had rendered first aid when he was notified that defendant would not be liable for medical attendance on the injured man who had been found to be a trespasser. The plaintiff now sues to recover for services rendered both before and after the notification. Held, that he may recover for the first-aid services only. Bryan v. Vandalia R. Co., 110 N. E. 218 (Ind.).

It has sometimes been held that a station master has authority to bind the railroad to a physician only when the injured person has a cause of action against the company for the injury. Union Pacific Ry. Co. v. Beatty, 35 Kan. 265, 10 Pac. 845. The physician must, therefore, guess the railroad's liability at his peril. Elsewhere the rule has been stated that the servant's authority is never sufficient to bind the railroad to a contract for attendance on an injured trespasser. Mills v. International, etc. R. Co., 41 Tex. Civ. App. 58, 92 S. W. 273; Adams v. Southern R. Co., 125 N. C. 565, 34 S. E. 642. But in some jurisdictions the servant has emergency authority, during the interval between the injury and the discovery of the causes, to contract in the name of the railroad for whatever may lessen damages in case it is later found liable. Bonnette v. St. Louis, etc. Ry. Co., 87 Ark. 197, 112 S. W. 220; Terre Haute, etc. Co. v. McMurray, 98 Ind. 358; Cincinnati, etc. R. Co. v. Davis, 126 Ind. 99, 25 N. E. 878. As the imposition by law of an emergency authority can best be supported on the theory that a railroad would normally desire its agents to have power to guard it from injury in unforeseeable contingencies where the fact that authority was not given would not imply that authority was denied, the latter rule seems most sound. But when liability is no longer threatened and the company's interest no longer at stake, there is nothing to support an implied authority. And with no just grounds of implication, the law should not force the company to authorize acts it has no duty to perform.

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ATTACHMENT-EFFECT OF ATTACHMENT-APPEARANCE-FILING OF FORTHCOMING OR REPLEVY BOND. - In a foreign attachment proceeding, the nonresident defendant, who did not enter the jurisdiction, secured the release of the property by giving a bond with sureties for its return. Held, that there was not such an appearance as to justify judgment by default against him and his surety, even for the value of the property. American Surety Co. v. Stebbins, Lawson & Spraggins Co., 180 S. W. 101 (Tex.).

When an alien defendant is not in the state, there can be no jurisdiction over his person except by his consent. See DICEY, CONFLICT OF LAWS, 383. But, by an attachment suit, jurisdiction can be had over any property within the state. In such a case there must also be notice, actual or constructive. Haywood v. Collins, 60 Ill. 328. See Walker v. Cottrell, 6 Baxt. (Tenn.) 257, 274; I WADE, ATTACHMENT, § 45. The question of whether the filing of a bond dispensed with the giving of such notice must be largely determined by the particular statute, since without statutory authority there is no jurisdiction quasi in rem. Harland v. United Lines Telegraph Co., 40 Fed. 308; Barber v. Morris, 37 Minn. 194, 33 N. W. 559. Statutes for constructive service are to be strictly construed. See McCook v. Willis, 28 La. Ann. 448, 449; Greene v. Tripp, 11 R. I. 424, 425. Now a bail bond, as it is conditioned on paying any judgment recovered, clearly carries consent to the jurisdiction and turns the

action into a personal one. Butcher v. Cappon & Bertsch Leather Co., 148 Mich. 552, 112 N. W. 110; Blyler v. Kline, 64 Pa. St. 130. Again a replevy bond may be given the effect of an appearance by express statute. Camp v. Cahn, 53 Ga. 558; Buice v. Lowman, etc. Mining Co., 64 Ga. 769. Such a provision would make the filing of a replevy bond, as of a bail bond, confer personal jurisdiction, since the defendant may get his property only on condition that he give the required consent. But the Texas statute is silent as to the effect of the replevy bond as an appearance. See 1 MCEACHIN'S TEXAS CIVIL STATUTES, art. 258, 269, 1885. Hence the filing of such a bond, as it is not conditioned on paying the judgment but merely on returning the property, should not be treated as a general appearance. See contra, Richard v. Mooney, 39 Miss. 357, 358. But a replevy bond, even though not construed as a general appearance, gives consent to the attachment so as to waive technical defects in the summons. New Haven Co. v. Raymond, 76 Ia. 225, 40 N. W. 820; McCordCollins Mercantile Co. v. Dodson, 32 Okla. 561, 121 Pac. 1085. Contra, Burch v. Watts, 37 Tex. 135. It would seem that since defendant is thereby shown to know of the action, the filing of the bond should similarly waive the technical defect of lack of constructive notice. Peebles v. Weir, 60 Ala. 413; Reynolds v. Jordan, 19 Ga. 436.

BANKRUPTCY - EXEMPTIONS - HOMESTEADS - VALIDITY OF HOMESTEAD EXEMPTION ACQUIRED AFTER ADJUDICATION. - A state statute provided that the head of a family residing upon his own premises might, by executing and filing for record a proper declaration, convert them into a homestead exempt from levy and forced sale. REV. CODE OF MONT. (1907), §§ 46944722. A bankrupt filed such a declaration after the adjudication against him. Held, that the exemption will be allowed. In re Lehfeldt, 225 Fed. 681 (U. S. Dist. Ct., Mont.).

The Bankruptcy Act provides that the bankrupt's title shall vest in the trustee as of the date of the adjudication, except as to property which is exempt. 1898, 30 STAT. AT L. 544. The power of the bankrupt to hold as owner is completely determined as of that moment. See Mueller v. Nugent, 184 U. S. 1, 14. It would seem that the exemption, to be valid, should be then existing. The homestead statute in the principal case in terms gives no exemption until the filing of the declaration; and it and similar statutes have been so construed. See Vincent v. Vineyard, 24 Mont. 207, 214, 61 Pac. 131, 132; Alexander v. Jackson, 92 Cal. 514, 519, 28 Pac. 593, 594; Nevada Bank v. Treadway, 17 Fed. 887, 893. No doubt a liberal policy prevails in the construction of exemption statutes. See Smith v. Thompson, 213 Fed. 335, 336; In re Crum, 221 Fed. 729, 732. Thus, a partner has been allowed an exemption though dissolution of the firm was subsequent to the judgment against it. O'Gorman v. Fink, 57 Wis. 649, 15 N. W. 771; Blanchard, Williams & Co. v. Paschal, 68 Ga. 32. But even such a case is distinguishable, as no title in the creditor is involved. A number of decisions, however, in accord with the principal case, sustain exemptions acquired by a bankrupt after adjudication. In re Mayhew, 218 Fed. 422; In re Culwell, 165 Fed. 828; In re Fisher, 142 Fed. 205. Whatever policy there may be sustaining such a view, it seems insufficient to override the clear language of the statute, and one court at least has reached the opposite result. In re Youngstrom, 153 Fed. 98.

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BILLS AND NOTES CHECKS CERTIFIED CHECKS RETRACTION OF CERTIFICATION MADE UNDER MISTAKE. - The drawer of a check payable to the plaintiff ordered the bank on which it was drawn to stop payment. The cashier, overlooking this stop order, certified the check. Before the plaintiff had changed his position, the cashier notified him of his error and attempted to retract the certification. The plaintiff now sues on the certified check with

out showing that he has suffered any loss because of the mistake. Held, that he cannot recover. Baldinger and Kupperman Mfg. Co. v. ManufacturersCitizens Trust Co., 156 N. Y. Supp. 445 (N. Y. Sup. Ct.).

An exception to the general rule that money paid under a mistake of fact may be recovered when the parties can be put in statu quo has grown up in the law of negotiable instruments, where the drawee of a forged bill pays or accepts it. Price v. Neal, 3 Burr. 1354. See BRANNAN, NEGOTIABLE INSTRUMENTS LAW, § 62. An exactly parallel situation is presented when, as in the principal case, an instrument has been certified or paid by a bank under a mistake as to the amount of the drawer's deposit. In these cases, as in cases of a forged instrument, the holder and the payer have both parted with value in good faith; neither were negligent; and, if the situation is looked at as an entirety, their equities appear equal. See Ames, "The Doctrine of Price v. Neal," 4 HARV. L. REV. 297. Again, in both groups of cases, if the situation is further analyzed, the equity of the holder is found to rest solely on the fact that he has parted with value in exchange for a worthless claim to a desired res, to which he later acquired title. However, in the second type of cases it is well settled that the bank will be given relief if it notifies the holder in time to save his rights against the drawer and indorsers. Irving Bank v. Wetherald, 36 N. Y. 335; Security Savings & Trust Co. v. King, 69 Ore. 228, 138 Pac. 465; Merchants National Bank v. National Bank of the Commonwealth, 139 Mass. 513, 2 N. E. 89. This would seem to indicate that the doctrine of Price v. Neal has not become a broad principle of the law of negotiable instruments but remained a solitary anomaly.

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BILLS AND NOTES - NEGOTIABLE INSTRUMENTS LAW NOTICE OF DISHONOR - WHETHER NECESSARY TO CHARGE INDORSER SHOWN BY PAROL EVIDENCE TO BE JOINT MAKER OR SURETY.— The payee of a note which was indorsed on the back before delivery, sues the indorser without having demanded payment of the maker, offering parol evidence that the defendant was a co-maker. Held, that he cannot recover. Overland Auto Co. v. Winters, 180 S. W. 561 (Mo.).

The directors of a corporation gave to a bank, as collateral security for notes discounted for the corporation, a note made by one of their number to the order of another, and indorsed before delivery by all the directors. The bank now seeks to enforce the collateral note against the estate of one of the indorsers, without having presented it to the maker for payment. Held, that the indorser's estate is liable. In re Marquardt's Estate, 95 Atl. 917 (Pa.).

Both Missouri and Pennsylvania have adopted the Uniform Negotiable Instruments Law. See REV. ST. Mo. 1909, ch. 86; 3 PURDON'S DIGEST (Pa.), 13 ed., 3250-3318. This law provides that "a person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity." See BRANNAN, NEGOTIABLE INSTRUMENTS LAW, § 63. Some courts have held that this merely creates a presumption, which may be rebutted by oral evidence. Mercantile Bank v. Busby, 120 Tenn. 652, 657, 113 S. W. 390, 392. Cf. Haddock, Blanchard & Co. v. Haddock, 192 N. Y. 499, 85 N. E. 682. Such a construction is not only unwarranted by the language of the act, but defeats its purpose of securing uniformity. The better view, therefore, is that the statute fixes the legal effect of the signature, and that parol evidence of an intention to be bound as jointmaker, as surety, or in some other capacity cannot be allowed to give it a different effect. First National Bank v. Bickel, 143 Ky. 754, 137 S. W. 790; Deahy v. Choquet, 28 R. I. 338, 67 Atl. 421. See Baumeister v. Kuntz, 53 Fla. 340, 346, 42 So. 886, 888. Now an indorser is ordinarily entitled to demand and notice unless the instrument was made for his accommodation. See BRAN

NAN, NEGOTIABLE INSTRUMENTS LAW, §§ 70, 80, 89, 115-3. A note indorsed before delivery by stockholders or directors of a corporation which receives the proceeds, is made, not for their accommodation, but for the accommodation of the corporation. First National Bank v. Bickel, supra; McDonald v. Luckenbach, 170 Fed. 434, 437. Contra, Mercantile Bank v. Busby, 120 Tenn. 652, 667, 113 S. W. 390, 394. And an accommodating indorser is discharged in the absence of demand and notice. Mechanics' & Farmers' Savings Bank v. Katterjohn, 137 Ky. 427, 125 S. W. 1071.



CARRIERS - INTERSTATE LIABILITY OF INITIAL CARRIER FOR DELAY UNDER CARMACK AMENDMENT. — The plaintiff shipped strawberries by the defendant railroad to a point beyond the defendants' own lines. Through the negligence of a connecting carrier the shipment was delayed. The Carmack Amendment subjects the initial carrier to liability for "loss, damage, or injury to such property" caused by a connecting carrier. U. S. COMP. STAT. 1913, § 8592, cl. 11. Held, that the initial carrier is liable. New York, etc. R. Co. v. Peninsula Produce Exchange, Sup. Ct. Off., No. 137, Jan. 24, 1916.

The court declares the broad purpose of the Act to be to localize responsibility for "any failure to discharge a carrier's duty with respect to any part of the transportation to the agreed destination." It therefore holds that the words "loss" and "damage" mean loss or damage to the owner, not loss or damage to the property. For a discussion of this clause of the Carmack Amendment, see 29 HARV. L. REV. 217.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - RIGHT TO HEARING ON TAX ASSESSMENT. - The Colorado Tax Commission and the State Board of Equalization made a forty-per-cent increase in the valuation of all the taxable property in Denver. No opportunity for a hearing was given taxpayers aside from the fact that the time of meeting of the boards was fixed by law. The plaintiff seeks to enjoin the enforcement of this order on the ground that it violates the Fourteenth Amendment. Held, that the injunction will not issue. Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S.


Where a person may be deprived of property, the right to be heard in quasijudicial proceedings is fundamental to the idea of due process. Petition of Ford, 6 Lans. (N. Y.) 92; Stuart v. Palmer, 74 N. Y. 183. Consequently tax assessments where no opportunity for a hearing is given, are held void. Albany City Nat. Bank v. Maher, 9 Fed. 884; Central, etc. Ry. Co. v. Wright, 207 U. S. 127; Scott v. City of Toledo, 36 Fed. 385, 396. See 20 HARV. L. REV. 320. However, it has been held that a horizontal increase in the valuation of a certain large class of property, as in the principal case, does not necessitate notice and an opportunity for a hearing to the individuals of the class affected. State Ry. Tax Cases, 92 U. S. 575, 609. On the other hand, the failure to give such notice in the assessment of a paving tax on a considerable number of people, in each case on individual grounds, has been held to be a denial of due process. Londoner v. Denver, 210 U. S. 373. The result seems to be that if a large number of people are equally affected no direct notice is required, while the reverse is true if the group is small or its members are unequally affected.

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CONSTITUTIONAL LAW -CONMAKING AND CHANGING CONSTITUTIONS STITUTIONAL CONVENTION RESTRICTION BY LEGISLATURE. - A constitutional convention was called in Louisiana by popular vote adopting a proposal of the legislature. This proposal contained restrictions on the power of the convention to revise certain matters, but gave the convention power to enact

a new constitution without submission to popular vote. ACTS OF LA., EXTRA SESSION, 1913, 1. Two years after it went into effect, the validity of certain clauses violating these restrictions was attacked. Held, that the clauses in question are invalid. Foley v. Democratic Parish Committee, 70 So. 104 (La.); State v. American Sugar Refining Co., 68 So. 742 (La.).

For a discussion of the powers of Constitutional Conventions, see NOTES, p. 528.

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CONTRACTS DIVISIBLE CONTRACTS REPUDIATION AFTER PART PERFORMANCE NEED THE PARTY WHO WOULD RELY ON THE REPUDIATION ACT AT ONCE? - The defendant agreed to take the plaintiff's news service for five years at a weekly rate, to be paid each week in advance. After two years the defendant gave notice of intention to repudiate the contract. The plaintiff remonstrated and urged continuance. He continued the service five weeks more; but on getting no further payments stopped the service, and sues for the contract price of service during the five weeks and for his loss of profits for the remainder of the contract. Held, that he can recover for past services, but not for future profits. United Press Association v. National Newspapers' Association, 227 Fed. 193 (Dist. Ct., Dist. Colo.).

Repudiation of a contract after part performance commonly justifies the other party in stopping work and suing for lost profits. Northrop v. Mercantile Trust & Deposit Co., 119 Fed. 969; Cort v. Ambergate, etc. Ry. Co., 17 Q. B. 127. See Parker v. Russell, 133 Mass. 74, 76. But it is said this must be done at once, since the repudiation is an offer for a breach, which will become complete only on prompt acceptance. This doctrine is frequently laid down in cases dealing with so-called breach of contract by anticipation. Smith v. Georgia Loan, etc. Co., 113 Ga. 975, 39 S. E. 410; Dalrymple v. Scott, 19 Ont. App. 477; Zuck v. McClure, 98 Pa. St. 541. See Roehm v. Horst, 178 U. S. I, II, 13; Johnstone v. Milling, 16 Q. B. D. 460, 467. But see 15 HARV. L. REV. 306. Whatever its sanction in that class of cases, a doctrine so foreign to the business understanding of the matter should not be extended further. Repudiation of a contract by one party justifies the other in believing that his contract is not going to be carried out. This belief reasonably lasts until the repudiation has been taken back. Therefore at any time before that, provided the repudiating party has done no act in reliance on the other party's statement of intention to go on, the latter is justified in stopping work. The contract is then broken totally in consequence of the defendant's wrongful act, and the defendant should be liable for all the profits lost. Louisville Packing Co. v. Crain, 141 Ky. 379, 132 S. W. 575. See Williston, "Repudiation of Contracts," 14 HARV. L. REV. 421; WILLISTON'S WALD'S POLLOCK, CONTRACTS, 3 ed., 347 et seq. The defendant's refusal to make payments is just another straw. It may be that this, standing by itself, would not justify a total refusal to go on. Beatty v. Howe Lumber Co., 77 Minn. 272, 79 N. W. 1013. See WILLISTON, SALES, § 467, at 822. But when colored by the prior repudiation, as yet unretracted, it becomes of greater import, and should be held to justify the plaintiff's conduct.

CORPORATIONS CAPITAL, STOCK, AND DIVIDENDS - APPORTIONMENT OF STOCK DIVIDENDS BETWEEN LIFE TENANT AND REMAINDERMAN. - Stock in a corporation was held in trust to pay the income to the life tenant with remainder over. The corporation declared a stock dividend of one hundred per cent, entirely out of earnings accrued since the stock was subjected to the trust. Held, that the life tenant is entitled to the dividend. In re Heaton's Estate, 96 Atl. 21 (Vt.).

In order to evade the difficulties involved in determining the rights of the life tenant and the remainderman to extraordinary dividends, whether in cash

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