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Published in November, January, March and May by the faculty and students

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EDITORS AND MANAGERS
CHARLES KELLOGG BURDICK, Faculty Editor
WILLIAM JAMES GILLERAN, New York, Student Editor-in-Chief
FRED SCHUYLER REESE, JR., New York, Business Manager
JAMES ALLEN EWING, Ohio, Assistant Business Manager

Student Associate Editors
RICHARD H. BROWN, New York

HARRY H. HOFFNAGLE, New York LOUIS W. DAWSON, New Jersey

FREDERIC M. HOSKINS, New York RALPH L. EMMONS, New York

CHARLES V. PARSELL, JR., New York JANE M. G. FOSTER, Ohio

OLIVE J. SCHMIDT, New York
EUGENE F. GILLIGAN, New York

HARVEY I. TUTCHINGS, New York
WILLIAM E. VOGEL, New York

Lieutenant-Colonel Edward Davis, LL.B., '96, accompanied General Allenby's forces into Jerusalem as United States Military Observer.

Major Andrew E. Tuck, Ph.B., '98, LL.B., '99, has been transferred from the office of Chief of Staff, 27th Division, to duty as Adjutant to Brigadier-General Carleton, commanding the Pioneer Division.

Below is a list of graduates of the College of Law who have recently received commissions, supplementary to the lists previously published in THE QUARTERLY:

1903—G. H. Russ, Capt., Inf.
1908—R. M. Sohngen, ist Lt., Inf., O. R. C.
1911-F. J. Maldiner, Capt., Inf., O. R. C.
1912–C. A. Hoornbeek, 2d Lt., Signal R. C.; V. C. Ryder, Lt., Inf.

1913—R. D. W. Clapp, Instructor, U. S. S. C., Aviation Section; C. A. Major, ist Lt., Signal R. C., Aviation Section; J. H. O'Connell, 2d Lt., Photo Detachment, U. S. S. C., Aviation Section; F. E. Wegner, Lt., Inf.

1915–B. H. Coiner, ist Lt., Inf., U. S. A.

1916-H. T. Byrne, 2d Lt., Inf., O. R. C.; F. R. Curtis, 2d Lt., Inf., O. R. C.; A. M. Hamburg, Provisional 2d Lt., C. A., U. S. A.; R. J. McLauchlin, 2d Lt., Inf., O. R. C.

The following members of the Senior Class have been elected to membership in the Order of the Coif: Jane M. G. Foster, Fred S. Reese, Jr., and Olive J. Schmidt. The first and second Fraser Scholarships for the year 1917-18 have been awarded to William J. Gilleran and Harvey I. Tutchings, respectively.

Notes and Comment

Accord and Satisfaction: Disputed or unliquidated claim as affected by an offset claimed by the debtor.Scott, J., writing the prevailing opinion in Frank v. Vogt, 178 App. Div. (N. Y.) 833 (1917), held that there was no accord and satisfaction where merchandise was sold and delivered under an express contract of sale, and the vendor in payment therefor sent a check "in full” for the agreed purchase price minus a deduction of 5%, the deduction being justified by the claim that the goods were not up to the agreed quality, which check was accepted and used by the vendor. In the language of the court: "That defendant, when he sent the check, wrote that he was sending it as full payment does not affect the question. He could not by paying an amount admittedly due in any event, foreclose plaintiffs from claiming that more was due, nor yet subject them to the risk of postponing the payment of the whole claim, until defendant's relatively small counterclaim could be judicially liquidated. To hold otherwise would result, in many cases, in permitting a debtor to coerce his creditor into making an unjustified deduction from his bill.”

By the weight of authority, an assertion of an offset or damages arising out of the same transaction on which a claim is based, will render such claim unliquidated, even though the primary claim itself is undisputed except in respect of the damages or offset asserted.2 However, there is strong authority in New York and elsewhere of which the instant case is an example which is seemingly squarely in conflict with that rule. Yet even in New York there are decisions in accord with the weight of authority,* so the question may to some extent be regarded as still open.

The jurisdictions that are in accord with the weight of authority take the view that there is no material difference between a dispute involving the primary claim itself, and a dispute involving an offset against the claim; that there is a dispute, whatever may have given rise to it. The instant case, and others analogous, reason that, as at least part of the claim is admitted, and only so much is paid as is admitted to be due, there is no consideration to satisfy the disputed balance.

In its final analysis, the question resolves itself into an inquiry as to whether a disputed offset arising out of the same transaction on which

Reversing Frank v. Vogt, 97 Misc. (N. Y.) 674 (1916). 2Ostrander v. Scott, 161 Ill. 339 (1896); Tanner v. Merrill, 108 Mich. 58 (1895); Uvalde Asphalt Paving Co. v. New York, 99 App. Div. (N. Y.) 327 (1904); Hull v. Johnson, 22 R. I. 66 (1900).

Klinefelter v. Granger, 152 App. Div. (N. Y.) 896 (1912); Windmuller v. Goodyear Tire and Rubber Co., 123 App. Div. (N. Y.) 424 (1908); Demeules v. Jewel Tea Co., 103 Minn. 150 (1908).

*Jackson v. Volkening, 81 App. Div. (N. Y.) 36 (1903), affirmed without opinion in 178 N. Y. 562 (1904); St. Regis Paper Co. v. Tonawanda Co., 107 App. Div. (N. Y.) 90 (1905), affirmed without opinion in 186 N. Y. 563 (1906); Fuller v. Kemp, 138 N. Y. 231 (1893); Ravenswood Paper Mill Co. v. Dix, 61 Misc. (N. Y.) 235 (1908); Brewster v. Silverstein, 78 Misc. (N. Y.) 123 (1912).

5Hull v. Johnson, supra, note 2.

the primary claim is based renders the whole claim unliquidated. It is difficult to see how a claim, any part of which is in dispute, can be liquidated within the rules governing accord and satisfaction, for as said in Nassoiy v. Tomlinson, unless it appears how much is due, the demand is not liquidated, even though it appear that something is due.

It hardly seems correct to say that the payment of a balance due after deducting a variable offset goes only in consideration of that part of the primary claim which is admittedly due. In the instant case no separate and distinct part is admitted to be due, for that which defendant offered was in full payment of the whole claim and not to any individual part thereof. It should be immaterial as to how the debtor computed the amount which he offers in satisfaction of the claim, except perhaps in so far as it tends to show a bona fide dispute, yet the courts substantially ground their reasoning thereon.

And even if the conclusion is reached that the debtor has admitted a certain sum to be due, yet he undoubtedly denies that the full claim is due, for his reserved admission that there is but a part due is in itself pregnant with denial of any greater liability. And by the weight of authority, if one of two specific sums is admitted to be due but there is a dispute as to which is the correct amount, the claim is to be considered unliquidated within the meaning of that word in its application to the doctrine of accord and satisfaction.?

Frederic M. Hoskins, '19.

Descent and Distribution: Right of inheritance from adopted child.-In Brewer v. Browning, 76 So. (Miss.) 267 (1917), an infant died unmarried and without issue. The infant had been adopted some years before by a family named Rule. Mr. Rule died intestate some time after the adoption and the adopted child inherited from him a large amount of property. After the infant's death, her property was claimed by her natural brothers and sisters and by her adoptive mother. Several other questions were involved in this action, but only this question will be considered here. The Mississippi statute regulating adoption has the following clause:

16* * * * and thereafter (after decree of adoption by the court] the petitioner shall have and exercise over such person so adopted all such power and control as parents have over their own children." In a former decision of a case arising between the same parties, the court had held that the natural brothers and sisters would take the property. In the principal case, the former decision was repudiated, and the adoptive mother was held to be entitled to the property which the deceased had inherited from the adoptive father; this result was said to be "more consistent with justice," and to best harmonize with the public policy in encouraging adoption.

6148 N. Y. 326 (1896).

"Greenlee v. Mosnat, 116 Iowa 535 (1902); Treat v. Price, 47 Neb. 875 (1896); Nassoiy v. Tomlinson, supra, note 6.

Hemingway's Ann. Miss. Code, sec. 299. ?Fisher v. Browning, 107 Miss. 729 (1914).

Since adoption was unknown at common law and is made possible only by statute, the question as to the right of the adoptive parent to inherit from the adopted child when the latter dies unmarried and without issue is largely one of statutory interpretation. The different wording of the statutes, however, does not alone account for the conflicting decisions in the various jurisdictions.

In many states it has been held that in the absence of a clause in the statute expressly providing for inheritance by the adoptive parents, property held by the child, no matter from what source acquired, will descend to the natural parents or other blood relatives, rather than to the adoptive next of kin. This result is reached by a very strict construction of the statutes relating to adoption; the courts refuse to change the common law in any way not expressly ordered by statute. This rule would seem to obtain in a majority of jurisdictions.

Other states hold that the relationship of parent and child is established by the adoption; that the adoptive parents take the place of the natural parents in every way, and therefore inherit all the child's property.

Still other jurisdictions make the criterion the original source of the property. If acquired from the natural parents, it goes to the blood relatives; if acquired from the adoptive parents, it goes to the adoptive next of kin.

It would seem that the rule giving all the property to the adoptive parent or the adoptive next of kin would be the correct one, if the view were taken that the adoption not only creates the relation of parent and child between the parties to the adoption, but also destroys that relation between the child and the natural parents. But as the law exists, recognizing the adopted child's relationship to its blood kin for the purpose of inheriting from them, an unfair result is sometimes reached by applying such a rule. On the other hand, the refusal of the courts in many states to recognize the existence of the family

Spencer, Dom. Rel., sec. 464.

White v. Dotter, 73 Ark. 130 (1904); Russell v. Jordan, 58 Colo. 445 (1915); Estate of Namauu, 3 Haw. 484 (1873); Baker v. Člowser, 158 Ia. 156 (1912); Reinders v. Koppelmann, 68 Mo. 482 (1878); Edwards v. Yearby, 168 N. C. 663 (1915); Daisey's Estate, 15 W.N.C. (Pa.) 403 (1884); Commonwealth v. Powel, 16 W.N.C. (Pa.) 297 (1885); Murphy v. Portrum, 95 Tenn. 605 (1895); Hole v. Robbins, 53 Wis. 514 (1881). In Heidecamp v. Jersey City St. Ry: Co., 69 N. J. L. 284 (1903), it was held that the adoptive parents were not entitled to sue as the next of kin under the Death Act.

Estate of Jobson, 164 Cal. 312 (1912); Humphries v. Davis, 100 Ind. 274 (1884), over ruling Barnhizel v. Ferrell, 47 Ind. 335 (1874); Paul v. Davis, 100 Ind. 422 (1884); Dunn v. Means, 48 Ind. App. 383 (1911); Calhoun v. Bryant, 28 S. D. 266 (1911); In re Havsgord, 34 S. D. 131 (1914). This is the rule in Minnesota by Gen. St. Minn., Sec. 7156. In Carpenter v. Buffalo Electric Co., 213 N. Y. 101 (1914), it was held that the adoptive parents were the proper parties to sue as next of kin under the Death Act.

6Swick v. Coleman, 218 I11. 33 (1905), decided under express statutory provision. Lanferman v. Vanzile, 150 Ky. 751 (1912); MacMaster v. Fobes, 226 Mass. 396 (1917), decided under express statutory provision; Upson v. Noble, 35 Oh. St. 655 (1880).

"Wagner v. Varner, 50 Ia. 532 (1879); Humphries v. Davis, supra, note 5; Clarkson v.

Hatton, 143 Mo. 47 (1897).

relationship between the child and the adoptive parents for the purpose of inheritance from the child disregards the spirit of the adoption statutes, and at times works an unfair result to the adopting family.

Certainly an equitable qualification on either rule, though one which is not always easily applied, is that established by statute in some states, that the property shall descend to the family from which it came.' In its decision that, at least in the case of property received from the adoptive family, the rights of that family to inherit should be held superior to that of the blood kin, the court in the principal case seems to have reached a just result. It is submitted that the provisions of the Massachusetts statute are most satisfactory,10 which provide that property acquired by the adopted child through his own efforts shall go to his adoptive family, and that property which has come to him from either family shall be inherited by that family.

Richard H. Brown, '19.

Divorce: Effect of statute forbidding remarriage.-Woodward v. Blake, 164 N. W. (N. D.) 150 (1917), presents the question of interpretation of statutes forbidding the remarriage of divorced persons; and Hall v. Industrial Commission, 162 N. W. (Wis.) 312 (1917), the question of what effect shall be given such statutes in a foreign jurisdiction. In the North Dakota case the statute read: “The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons, except that neither party to a divorce may marry within three months after the time such decree is granted.” The court held that a marriage contracted within the state by a divorced person less than three months after the decree was granted was not void and could not be assailed collaterally upon the probate of such person's estate. The opinion is based upon the reason that since the legislature had, in numerous other statutes, expressly declared certain marriages void and others voidable, the intent to make this the one or the other was not clear and since marriage is regarded with favor by the law, statutes should not be so construed as to make a marriage null unless the language of the statute makes the

legislative intent clear and unequivocal. Upon this basis of decision, the inference may be drawn that the court would not have held the marriage voidable.

Statutes prohibiting remarriage after divorce, but silent as to the effect of disobedience, are either directory or mandatory. If deemed directory, the marriage is usually held valid, or at most voidable; if mandatory, the marriage is void. The question is one of legislative intent and the holdings of the various courts are conflicting, due partly to the different wording of similar statutes.

Since there is a presumption in favor of marriage, the courts have construed strictly statutes merely prohibitory upon both parties,

8See comment in 39 Am. St. Rep. 228. 'Jones & Add. Ill. Stat. Ann., sec. 198; Mass. Rev. Laws, ch. 154, sec.7; Howell's Mich. Stat. (2d ed.), sec. 10972.

10 Supra, note 9.
"Bishop, Marriage, Divorce and Separation, sec. 423.

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