BILLS AND NOTES NOTE PAYABLE AT BANK - PAYMENT . PRESENTMENT AND NOTICE OF DISHONOR. A promissory note was sent by mail for collection by the holder to the bank at which it was made payable. The day after maturity, the maker, hearing that the note had reached the bank, requested the president of the bank to charge it to his account, on which he was credited with sufficient funds to meet the note, and was informed that such would be done. Seven days later the bank failed without having taken further action on the note. During all this time the holder made no inquiries concerning the note. The holder now sues the maker. Held, that he cannot recover. Baldwin's Bank of Penn Yan v. Smith, 109 N. E. 138 (N. Y.).

For a discussion of this case, see NOTES, p. 204.

CARRIERS INTERSTATE COMMERCE - CONNECTING LINES - LIABILITY UNDER CARMACK AMENDMENT FOR EXCESS CHARGE. - The plaintiff shipped lumber by the defendant railway to a point beyond the defendant's lines. By an error of a connecting carrier the lumber was misrouted and additional freight charged. Although the defendant had contracted only to deliver to the connecting carrier and had expressly restricted its liability to its own line, the plaintiff sues for the excess charge under the Carmack Amendment, which subjects the initial carrier to liability for "loss, damage, or injury to such property" caused by a connecting carrier, and forbids any form of contractual exemption. U. S. COMP. STAT. 1913, § 8592, cl. 11. Held, that the defendant is liable. Chesapeake & O. Ry. v. W. T. Ward Lumber Co., 60 Oh. L. Bull. 594, 35 O. C. C. 594.

A carrier's liability beyond its own terminus is contractual. See Erie Ry. Co. v. Wilcox, 84 Ill. 239, 240; Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 680. And whether such a contract has been made is a question of fact. Gray v. Jackson, 51 N. H. 9. The English rule, adopted in a few states, is that the mere acceptance of the goods for a point beyond the carrier's own terminus is prima facie evidence of a contract to carry them there, and thus involves liability for the negligence of the connecting carriers as agents. Muschamp v. Lancaster & P. J. Ry. Co., 8 M. & W. 421. See Erie Ry. Co. v. Wilcox, 84 Ill. 239, 240. See 21 HARV. L. REV. 539. On the other hand, in the United States before the amendment, by the weight of authority, further evidence of a contract was necessary for this liability to attach. Myrick v. Michigan Central R. Co., 107 U. S. 102; Louisville & N. R. Co. v. Cooper, 19 Ky. L. R. II52, 42 S. W.II34; Van Santvoord v. St. John, 6 Hill (N.Y.) 157. On either view, the defendant's liability in the principal case must rest solely upon the Carmack Amendment, since the existence of any contract is expressly negatived. But an excess charge does not come within the scope of the amendment, for a money loss to the owner is not "loss, damage, or injury property." Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U. S. 390; Wolf v. Wall, 40 Oh. St. 111. See Gulf, C. & S. F. Ry. Co. v. Nelson, 139 S. W. 81, 85 (Tex.). Cf. Missouri, K. & T. Ry. Co. v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410. Nor is it possible to consider the amendment as an enactment of the English rule, for the qualifying phrase "to property" clearly refers to all three preceding words. See Great Western Ry. Co. v. Swindon & C. E. Ry. Co., 9 A. C. 787, 808. Accordingly, the principal case seems to impose a wider liability than the provisions of the amendment

to .

warrant.

CONDITIONAL SALES CONFLICT OF LAWS ·SALE BY CONDITIONAL VENDEE. A conditional vendee in Massachusetts sold a chattel in the same state to one who was assumed by the court to have taken without notice of the con

dition. The latter subsequently transported the property to Pennsylvania, where the defendant bought it in good faith. Upon removing it to Delaware he was there sued in replevin by the original vendor. The court gave judgment for the defendant. Fuller v. Webster, 95 Atl. 335.

In Massachusetts and Delaware a bona fide purchase from a conditional buyer does not divest the original seller of his right. Coggill v. Hartford & N. H. R. Co., 3 Gray (Mass.) 545; Watertown Steam Engine Co. v. Davis, 5 Houst. (Del.) 192. In Pennsylvania it does. Dearborn v. Raysor, 132 Pa. St. 231, 20 Atl. 690. Now the rights of a buyer purchasing goods from a conditional vendee should be determined by the law of the place of purchase and not by the law of the state where the conditional vendee had originally obtained the goods. The Marina, 19 Fed. 760; Cooper v. Phila. Worsted Co., 68 N. J. Eq. 622, 57 Atl. 733. See WILLISTON, SALES, § 339. But, in the principal case, if the attempted unconditional purchase by the sub-vendee in Massachusetts was a conversion, the sub-vendee acquired nothing which he could convey in Pennsylvania. However, Massachusetts law recognizes a transfer to the sub-purchaser of the conditional vendee's beneficial interest, where the original contract of sale does not prohibit assignment or removal of the article from the conditional vendee's possession. Day v. Bassett, 102 Mass. 445; Chase v. Ingalls, 122 Mass. 381; Dame v. Hanson, 212 Mass. 124, 98 N. E. 589. The attempted sale is treated as an assignment of the beneficial interest, and the analogy of the tortious transfer of, or swollen claim in, a pledge is wisely ignored. For the interest of a conditional vendee, differing from that of a pledgee, is that of beneficial ownership, and entitles its possessor to use the property as his own. See WILLISTON, SALES, 88 331 et seq. But attachment by a creditor of the conditional vendee is a conversion. Barrett v. Pritchard, 2 Pick. (Mass.) 512; Blanchard v. Child, 7 Gray (Mass.) 155; Nichols v. Ashton, 155 Mass. 205, 29 N. E. 519. The distinction would seem to lie in that the attachment process involves the legal title.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - RIGHT TO CONFER WITH EXPERT WITNESSES. — The plaintiff, who had brought a bill to restrain the defendant, his former employee, from divulging certain alleged secret processes, obtained a preliminary injunction forbidding the defendant from disclosing these processes to expert witnesses whom he intended to call to prove that the processes were well known to the trade. Held, that the injunction denied the defendant due process of law. Masland v. Du Pont De Nemours Powder Co., 224 Fed. 689 (C. C. A., 3d Circ.).

To prevent the impairment of a disputed right, a temporary injunction will be granted at the discretion of the court to preserve the status quo pending the adjudication of that right. Alderman & Sons Co. v. Wilson, 69 S. C. 156, 48 S. E. 85; Sims v. Sims, 110 Ga. 283, 34 S. E. 847. But the court in exercising its discretion should consider the effect of granting or refusing the injunction on both parties and take the course which seems most conducive to justice. See Sampson & Murdock Co. v. Seaver-Radford Co., 129 Fed. 761, 771. It is obvious, in the principal case, that the interest which the plaintiff claims would be utterly destroyed by an unrestrained disclosure of the secret processes to witnesses. On the other hand, the right to enjoy due process of law gives the defendant a right to be heard in his own defense. Harley v. Montana, etc. Co., 27 Mont. 388, 71 Pac. 407. To prevent consultation with expert witnesses is to some extent an infringement of that right. Again, the plaintiff's right can be largely protected by an injunction forbidding the witnesses from disclosing the processes pending suit, the injunction to be made permanent if the plaintiff's contention is sustained. Hence, in the conflict of disadvantages which this case involves, the balance of justice is with the defendant and the result of the principal case seems correct. But it may well be doubted that the opposite result

would necessarily involve a violation of the defendant's constitutional right of due process.

CONSTITUTIONAL LAW PERSONAL RIGHTS - STATUTE RESTRICTING EMPLOYMENT OF ALIENS - INJUNCTION AGAINST CRIMINAL PROSECUTIONS. An Arizona statute forbade an employer of over five men to hire more than a certain percentage of aliens. The plaintiff, an alien employee, without a fixed term of service, was discharged solely because of this provision. He now brings a bill for reinstatement and to restrain action under the statute. Held, that the statute is unconstitutional. Truax v. Raich, Sup. Ct. Off., No. 361. For a discussion of the similar decision of this case in the Circuit Court of Appeals, and the general problem of liberty of contract under the Constitution, see 28 HARV. L. REV. 496. As to the further question of the jurisdiction of the equity court, there is no doubt that equity may restrain criminal prosecutions in order to safeguard property rights. Dobbins v. Los Angeles, 195 U. S. 223. See Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 218. It is equally well settled that the right of an employee not to have his means of livelihood disturbed is a property right, even where his employment is for no fixed term but at the will of his employer. Berry v. Donovan, 188 Mass. 353, 74 N. E. 603; Perkins v. Pendleton, 90 Me. 166, 38 Atl. 96.

CONSTITUTIONAL LAW POWERS OF THE JUDICIARY

DICTION

ADMIRALTY JURIS

· VALIDITY OF TREATIES. A libel in rem was brought in the federal court by an American citizen against a Dutch ship to recover wages earned as a seaman. The owners of the vessel intervene and claim that the court has no jurisdiction, on the ground that a treaty between the United States and the Netherlands gives exclusive jurisdiction over such cases to the consul of the Netherlands. Held, that the court has no jurisdiction. The Albergen, 223 Fed. 443 (Dist. Ct., Georgia).

By Article VI of the Constitution, treaties regularly entered into by the United States are the supreme law of the land. It is well settled, however, that a treaty has only the dignity of a statute and may be repealed by a later act of Congress. Taylor v. Morton, Fed. Cas., No. 13,799; The Cherokee Tobacco, 11 Wall. (U. S.) 616; Thomas v. Gay, 169 U. S. 264. And whatever may be the international effects of a treaty which conflict with the provisions of the Constitution, it is generally agreed that it will be disregarded by the courts. The Neck, 138 Fed. 144. See The Cherokee Tobacco, supra, 621; Doe v. Braden, 16 How. (U. S.) 635, 657. See I WILLOUGHBY, CONSTITUTION, 495. Now Article III, Section 2, of the Constitution gives the Federal courts jurisdiction over "all cases of admiralty and maritime jurisdiction" and it seems clear that this provision precludes the state courts from exercising such jurisdiction. See Martin v. Hunter's Lessees, 1 Wheat. (U. S.) 304, 337; The Moses Taylor, 4 Wall. (U. S.) 411, 428; Claflin v. Housman, 93 U. S. 136. See THE FEDERALIST, No. 80; 2 STORY, CONSTITUTION, § 1754; 2 WILLOUGHBY, CONSTITUTION, 1114. But see The Hine v. Trevor, 4 Wall. (U. S.) 555, 572. Where the libellant was not an American citizen a treaty giving exclusive jurisdiction to foreign consuls over certain admiralty cases has been upheld. The Bound Brook, 146 Fed. 160; The Koenigin Luise, 184 Fed. 170. This result offers no difficulties, for the courts of the United States, while they may take jurisdiction over admiralty controversies between foreigners, and ought to take it where justice requires it and international comity permits it, are not obliged to exercise such jurisdiction. The Bee, Fed. Cas., No. 1,219; One Hundred and Ninety-Four Shawls, Fed. Cas., No. 10,521; The Ester, 190 Fed. 216; The Bound Brook, supra. But it has been held that a treaty cannot operate to deprive an American citizen of his right to a trial in the federal courts when he is involved in an admiralty controversy. The Neck, supra. See The Falls of Keltie, 114 Fed. 357, 359; The Ester, 190 Fed. 216, 225; The Troop, 117

Fed. 557, 559. Nevertheless the result in the principal case seems correct, for it appears that the constitutional provision in question was not intended to limit the treaty-making power, but to mark the division between federal and state jurisdiction. See The Koenigin Luise, supra. Again, similar treaties were concluded in 1787 and in 1788 and were understood by the framers of the Constitution as compatible therewith. See 2 MOORE, DIGEST OF INTERNATIONAL LAW, 300.

CONSTITUTIONAL LAW - REVENUE BILLS-PROHIBITING TAX ATTACHED BY HOUSE TO SENATE BILL. - A federal statute known as the "Cotton Futures Act" imposed a practically prohibitory tax on contracts for the sale of cotton for future delivery not in certain prescribed statutory forms. 38 U. S. STAT. AT L. 693. The bill originated in the Senate in the form of an exclusion of such transactions from the mails, but the House, retaining only the enacting clause, substituted the bill in its present form. The plaintiff sues to recover the tax paid under this statute. Held, that the statute is unconstitutional, being a revenue bill originating in the Senate. Hubbard v. Lowe, 54 N. Y. L. J. 193 (Dist. Ct., N. Y.).

The Constitution requires that all revenue bills originate in the House. U. S. CONST., Art. 1, sec. 7, cl. 1. The courts have tended to construe as revenue bills under this clause only bills primarily for raising revenue and not such bills as might raise revenue incidentally. Millard v. Roberts, 202 U. S. 429; cf. United States v. Hill, 123 U. S. 681; United States v. Norton, 91 U. S. 566. But nevertheless a bill intended as a prohibitory tax, because in form a bill for revenue is considered an exercise of the taxing power. McCray v. United States, 195 U. S. 27, 59. The decision that the statute in the present case is one for revenue seems to follow necessarily from this. The wide scope of amendment allowed the Senate on revenue bills illustrates further the formality with which the Constitution is construed in this regard. Flint v. Stone Tracy Co., 220 U. S. 107, 143. The same spirit of rather formal construction supports the finding that this bill originated in the Senate as certified, although its taxation features originated in the House. Although not expressly based on it, this decision is really compelled by the well-settled rule of the federal courts that the records deposited with the Secretary of State may not be controverted by the Journals of Congress. Field v. Clark, 143 U. S. 649, 671; Harwood v. Wentworth, 162 U. S. 547, 562. The court does not discuss the constitutionality of this statute as an exercise of the taxing power. But see McCray v. United States, supra; U. S. DEPT. OF Agriculture, Office of MARKETS AND RURAL ORGANIZATION, 1915 SERVICE AND REGULATORY ANNOUNCEMENTS No. 5, 51.

CONTRACTS - REWARDS

66

PERFORMANCE WITHOUT KNOWLEDGE OF THE OFFER - MEANING OF ARREST AND CONVICTION.' - The legislature of a state passed a statute providing "that the Governor is hereby authorized to offer a reward for the arrest and conviction of the persons guilty of the murder of X." A reward was offered in pursuance of the statute. A posse, without knowledge of the offer, killed the Indians guilty of the crime. Held, that the members of the posse are entitled to the reward. Smith v. State, 151 Pac. 512 (Nev.).

An offer of a reward is an offer to a unilateral contract, and can be accepted only by performing the act designated. Biggers v. Owen, 79 Ga. 658. Since every contract, unilateral as well as bilateral, requires mutual assent, the act must be performed with an accepting mind, in order to claim the reward. The first requisite of this accepting mind is knowledge of the offer. Howland v. Lounds, 51 N. Y. 604; Williams v. West Chicago R. Co., 191 Ill. 610, 61 N. E. 456. Contra, Dawkins v. Sappington, 26 Ind. 199; Auditor v. Ballard, 9 Bush

(Ky.) 572. It has been said, however, that there is a different rule when the reward is offered by statutory authorization. See Drummond v. United States, 35 Ct. Cl. 356; Broadnax v. Ledbetter, 100 Tex. 375, 378, 99 S. W. IIII, II12. Such a distinction can only be supported on the ground that the legislature intended that the reward should be paid to any one performing the designated act regardless of his knowledge of the offer. The legislature can, of course, make such a provision; but it is submitted that it is not to be presumed without clearer language than that of the statute in this case. Smith v. Vernon Co., 188 Mo. 501, 87 S. W. 949. As to the question of whether in the principal case there was sufficient compliance with the terms of the offer; though the reward was offered for "arrest and conviction," its real object was to prevent the murderers from repeating their crime; and this object was attained. The growing trend of authority is to construe the terms used here liberally. In re Kelly, 39 Conn. 159; Wilmoth v. Hensel, 151 Pa. St. 200, 25 Atl. 86; Moseley v. Stone, 108 Ky. 492, 56 S. W. 965. But see Williams v. West Chicago R. Co., supra.

DAMAGES - MEASURE OF DAMAGES RECOVERY FOR BREACH OF WARRANTY AFTER RESALE OF SEED. - The defendant sold to the plaintiff a quantity of cucumber seed for purposes of resale, warranting it to be of a certain variety. The seed was resold, and, when planted, produced a crop of an inferior variety of cucumbers. The plaintiff, although he has not yet been sued by the sub-buyer, and has neither paid nor adjusted the latter's claim, now sues for breach of warranty. Held, that he can recover the difference in value between the crop actually produced and an equal crop of the warranted variety. Buckbee v. P. Hohenadel, Jr., Co., 224 Fed. 14 (C. C. A., 7th Circ.). Where the seller has notice of the buyer's intention to resell the goods warranted, the buyer can recover any damages which he has been compelled to pay to a sub-buyer to whom the goods were resold with a warranty. Reggio v. Braggiotti, 7 Cush. (Mass.) 166; Reese v. Miles, 99 Tenn. 398, 41 S. W. 1065. See 3 SUTHERLAND, DAMAGES, 3 ed., § 675; 2 MECHEM, SALES, § 1834. Now as the wrong in breach of warranty consists in the sale of the defective goods, the buyer may sue immediately and recover nominal damages without proving substantial injury. Vogel v. Osborne, 34 Minn. 454, 26 N. W. 453. See Hammar Paint Co. v. Glover, 47 Kan. 15, 27 Pac. 130. Accordingly, in an action for breach of warranty of title, the better view is that the buyer may sue at once and recover prospective damages though he has not been dispossessed. Grose v. Hennessey, 13 Allen (Mass.) 389. The case of breach of warranty of quality is analogous, and the buyer who has resold the goods may recover for the liability incurred although no claim has been made against him by the sub-buyer. Randall v. Raper, E. B. & E. 84; Muller v. Eno, 14 N. Y. 597. See Passinger v. Thorburn, 34 N. Y. 634, 639. Nor are the damages in the principal case too conjectural, for the plaintiff is clearly liable to the sub-buyer. See WILLISTON, SALES, § 615. And the measure of damages there laid down is the one usually adopted. See 21 HARV. L. Rev. 286.

ELECTIONS ·CONSTITUTIONALITY OF STATUTE PROVIDING FOR PREFERENTIAL VOTING. - The constitution of Minnesota guarantees to all electors the right to vote "for all officers. . . elective by the people.' A statute authorized preferential voting at certain municipal elections. The plaintiff, a voter of the city, contests the election of the defendant under this statute. Held, that the statute is unconstitutional. Brown v. Smallwood, 153 N. W. 953.

On the same facts and under a similar constitutional provision, held, that the statute is constitutional. Orpen v. Watson, 93 Atl. 853 (N. J.).