"Plainly the statute contains no definition of who are to constitute the next of kin to whom a right of recovery is granted. But, as speaking generally under our dual system of government, who are next of kin is determined by the legislation of the various States to whose authority that subject is nominally committed, it would seem to be clear that the absence of a definition in the act of Congress plainly indicates the purpose of Congress to leave the determination of that question to the State

law."

There is then replied to the contention that use by Congress of common law terms is with their "common law significance." It is stated this rule will not ascribe intent by Congress in defining a class to overthrow the local law of the States, and if the contention were good as to one part of the act being considered it would be good as to another and thus set aside legislation of States "on subjects of the most intimate domestic character and substituting for it the common law as stereotyped at the time of the separation" of this country from England. The claim for uniformity does not meet such a need, for to apply such a rule would amount to "producing discord and want of uniformity."

There are cited Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, and Blagge v. Blach, 162 U. S. 439, where local State statutes were applied to define terms used in Federal statutes.

While the rule as to common law terms used in Federal law being taken in their common law sense is, generally speaking, a wise rule of construction, yet it is plainly subject to intent in the Federal law in their use, and in such a statute as the Federal Employers' Liability law, which State courts are to enforce, it is hardly to be supposed that Congress intended to enforce a rule where States would and do have different dates of separation from the mother country, as shown by statutes adopting the common law as the rule of decision.

RECENT DECISIONS IN THE BRITISH

COURTS.

Two cases lately decided here as to solicitors and bank transactions with clients' money may interest American practitioners. Our law as to money deposited in bank is that the bank receipt constitutes a contract, in terms of which repayment to the depositor must be made. Should the bank make payment to a wrongful holder of the receipt, they must pay over again to the true owner, unless on proof that they

have been misled in some way by the original depositor, as for example, by negligence on his part facilitating or inducing the fraud.

In the first of the cases referred to, National Bank of Scotland Ld. v. Dickson & ors., 1916, I S. L. T. 307, the facts were these: In 1890 a sum of £155 belonging to an executory estate was deposited in the plaintiff bank, the receipt bearing that the money had been received from the executors and that it should be payable on the signature of Messrs. Wylie Robertson and Rankin, solicitors for the executors. In 1896, Mr. Rankin retired from the firm, and the business was carried on by the other partners under the name of Wylie & Robertson. In 1898, Mr. Wylie died, and Mr. Robertson assumed another partner, the business being still carried on under the name of Wylie & Robertson. In 1904, Mr. Robertson applied to the bank for payment of the money deposited and upon his indorsing the receipt with the signature of Wylie, Robertson & Rankin, and also with the signature of Wylie & Robertson, he received payment of the money, and subsequently misappropriated it. In 1914, the representatives of the executors claimed the money from the bank on the ground that they had paid it neither to the depositors or persons in their right, nor to the persons authorized on the face of the receipt to receive payment. The bank maintained that they had made payment in terms of their contract, Robertson, as sole surviving partner of the firm of Wylie, Robertson & Rankin, being entitled to sign the firm's name and to receive payment of the money. Lord Anderson held that the bank was liable, for in the circumstances after the lapse of fourteen years they should have been put on their inquiry as to whether the executory still existed, as to who were the actual owners of the money and as to whether the authority to pay on the signature of the agents still existed. On appeal, however, that judgment has been reversed, the court finding that the effect of the receipt granted by the bank was plainly to acknowledge the deposit of money to be repaid on the terms and conditions set forth on the face of it. These terms and conditions had, in their opinion, been satisfied for Mr. Robertson had been within his legal rights in adhibiting the signature of Wylie, Robertson & Rankin, either on the ground that it was a necessary act in order to wind up the affairs of the partnership, or on the ground that it was necessary to complete a transaction begun but unfinished at the date of dissolution of the firm. It was not said that the signature was a forged signature, and the bank was entitled to say that if the receipt bore the signature of the

to pay the money, they were both entitled and bound to pay to the person who presented the receipt. It was no concern of theirs what became of the money after it was so paid.

The other case, Thompson v. London City & Midland Bank Ld., has not yet appeared in the official law reports, having just been tried at the recent Birmingham Assizes. The plaintiff was a lady of independent means, who had as her advisor one Balden, a solicitor for whom she became guarantor and deposited shares in security with the defendant bank to the value of £3,000, covering Balden's indebtedness to the bank. Subsequently Balden was convicted of fraud and embezzlement, and now plaintiff claimed to have her guarantee canceled and the shares returned to her, the basis of her claim being that she was entirely in the hands of Balden and had not been independently advised. The defense was that the plaintiff fully understood what she was doing, and in support of this one of the bank's branch managers gave evidence as to the interview in Balden's office when the transaction took place. He narrated that Miss Thompson asked if she was running any risk, and witness replied that that was more a matter between herself and Balden; if Balden paid back the money advanced to him on the security she would run no risk, but if he did not she would lose the money. Balden then interposed, "What he means is, if I become bankrupt, you will lose the money." Miss Thompson, however, witness continued, agreed to take the risk because she expressly wished Balden to have the money. She said she quite understood the nature of the documents she signed. They were handed to her one by one and explained to her. The court accepted that testimony at its full value, agreeing that there had been no trickery or concealment on the part of the bank, yet for the simple reason that the old lady had not had the benefit of separate advice, it was held that the bank failed in its defense, and order was made for cancellation of plaintiff's bond and delivery of the shares back to her.

The ground of decision was the fact that there had been non-observance of the professional rule well enough known to professional men, and which cannot be better stated than in the words of Mr. Justice Rowlatt, who, in his judgment in the case, referred to, said: "It was a very well known principle of equity that a solicitor, and especially a confidential family

solicitor, could not take a benefit for himself

from his own client unless the client had been separately advised in the matter. The prin

must be obvious to anyone who knew anything about life. If a solicitor wanted to change his position from that of an adviser he must put himself at arm's length and see that his client is separately advised." That principle has long been applicable in the fullest and strictest sense to transactions between a solicitor and his client. There have been cases, too, and Thompson's case is of the number, where it has operated to render void transactions between the solicitor and third parties; and rightly so, the rule is widely known to business men, and ignorance of it cannot be pleaded. Thus in the case mentioned, the fact that the plaintiff, a lady, was benefiting her own solicitor should have at once suggested to the banker that inquiry ought to be made. His defense was that he did make inquiry by putting some questions to the lady herself, but that perfunctory observance of the rule was not enough; genuine inquiry would have forced the bank to realize that an independent agent should be called in. That, however, was not done, and a security granted in such circumstances was accordingly held bad.

Glasgow, Scotland.

DONALD MACKAY.

RELEASES OF RIGHTS OF ACTION ACCRUING UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.

Many interesting and important questions may arise in connection, with releases of claims for personal injury. For example, if a release is to be attacked, is the return of the consideration a condition precedent? Must it be returned before suit, or may it be credited on the judgment? Must the attack be made in a special proceeding brought for the purpose, or may it be made collaterally in an action for the injury? Does a solution of the last question, in cases for fraud, depend on whether the fraud is in the procurement or in the representations made, or on whether the release be, or be not, under seal? On all these questions the courts have reached. varying conclusions, and the only safe course is specially to examine the law of the proper jurisdiction.

Again, there is a considerable body of law dealing with the question of releases of rights before the injury is sustainedthat is, contracts exempting from liability. It is not intended to deal here with such

cases.

This note, accordingly, must be limited; and all that will be attempted will be a brief discussion of certain special questions (principally as to parties) arising as to releases, given after the injury, of rights arising under the federal Employers' Liability Act.

Obviously, in considering the release of a right, the first questions to be determined are, what is the nature of the right, and in whom is it vested? These questions are answered in the case of St. Louis, etc., R. Co. v. Craft. The Act2 confers two separate rights of action, viz.:

(1) A right of action in favor of the injured employe, which (under the amendment of April 5, 1910), in the event of his death survives to his personal representative for the benefit

(a) of the surviving widow or hus-
band and children; or, if none,
(b) of the parents; or, if none,
(c) of the next of kin.

(2) In case of death resulting from the injury, a new right of action in favor of the personal representative for the benefit of the relatives named above.

(1) The Employe's Right of Action.— Taking up these in order, it is entirely clear that if the employe is injured, and death does not result, a release from the employe alone is sufficient.

Moreover, if such release has been given, and the employe subsequently dies, whether or not as the result of the injury, it is obvious that the cause of action in his favor, which the amendment of 1910 provided should survive to his personal representative, having been extinguished by the release, is at an end.

As to the new cause of action given the personal representative in favor of the designated relatives, the Supreme Court of the United States has not yet had occasion to consider the effect of a release given by the employe in his lifetime. It is believed, however, that when this question is presented, the release will be held to be an effective bar to a subsequent action. A very strong argument to the contrary, based on the theory that an independent cause of action in favor of the wife and children cannot be divested by any act of the employe, is made by the majority opinion, in connection with a similar statute, in the case of Rowe v. Richards, but it is conceded there, emphasized by the two dissenting opinions in the case, and demonstrated by the notes to Louisville R. Co. v. Taylor, that the overwhelming current of decision is to the contrary effect. Moreover in the Vreeland case, supra, the Court said:

"But as the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent upon the existence of a right in the decedent immediately before his death to have maintained an action for his wrongful injury."

If the decedent had released his rights, it would seem that the "new action" must fail. But as to this we cannot speak dogmatically, but only in terms of high probability.

A similar conclusion persuasively results from Northern, etc., R. Co. v. Adams.

(2) The Personal Representative's New Right of Action.-Far more important to the practitioner, is the question of how the new right of action given the personal representative in cases of death can be released, no release having been given by the decedent.

Upon this question the language of the

(3) S. D., 151 N. W. 1001, L. R. A. 1915, E. 1075. (4) Ky., 27 L. R. A. (N. S.) 176, and State, etc., v. United, etc., Co. of Baltimore (Md.), L. R. A. 1915. E. 1163.

(5) 192 U. S. 440, 48 L. Ed. 513; see also 13 Cyc. 325; and, for the opposite view, Note in 70 Am. St. Rep. 669, at p. 684.

act affords no solution; nor have there been found any decisions construing it in this regard. We are remitted, accordingly, to principle, and to decisions construing other statutes in pari materia.

It is clear that there may be at least three types of releases, having regard to the parties:

(a) Releases by the personal represen-
tatives;

(b) Releases by all the beneficiaries;
(c) Releases by some of the benefi-

ciaries.

(a) Releases By the Personal Repre

sentatives. As to these, while the intimations of some courts are otherwise it is

believed to be immaterial to examine the common law powers of a personal representative, for the reason that his functions under the act are of a special character, as trustee for certain designated beneficiaries, and not at all as the representative of the estate of the deceased. This is well brought out in the case of Washington, etc., R. Co. where a statute required personal representatives to secure the consent of the probate court to proposed compromises, but it was held that this did not apply to the compromise of death cases.

The following cases hold that a release by the personal representative is valid, in the absence of fraud.8

It would seem that a release by a per

(6)

Parker v. Providence, etc., Co. R. I., 14 L. R. A. 414; Olston v. Oregon, etc., Co., Ore., 96 Pac. 1095, 20 L. R. A. (N. S.) 915. (7) I11., 26 N. E. 653. (8)

Loveman v. Birmingham, etc., Co., Ala., 43 So. 411; Henchey V. Chicago, 41 III. 136; Washington v. Louisville, etc., R. Co., Ill., 26 N. E. 653; Hemmick v. Baltimore, etc., R. Co., Ill., 104 N. E. 1027 (here the personal representative was the widow and was also guardian for the only child); Gipe v. Pittsburgh, etc., R. Co., Ind., 82 N. E. 471 (the case so holds by necessary implication, the release having been given by the personal representative, who was the widow, and there having been minor children; but the question is not discussed); Foot v. Great Northern R. Co., Minn., 84 N. W. 342 (but if obtained by fraud the Minnesota court holds that it may be collaterally attacked in a new suit against the tort-feasor: Aho v, Jesmore, 112 N. W. 538, 10 L. R. A. [N. S.] 998; Aho v. Steel Co., 116 N. W. 590); Olston v. Oregon, etc., Co., Ore., 96 Pac. 1095, 20 L. R. A. [N. S.] 915; Parker v. Providence, etc., R. Co., R. I., 14 L. R. A. 414.

sonal representative is good in California. In Hartigan v. Southern Pacific Co., it was held that the personal representative had the right to compromise, with the approval of the probate court; and there is cited to sustain this the case of Moulton v. Holmes, which holds that the approval of the court is merely for the protection of the personal representative, who retains his common law right to compromise claims.

In Mississippi, the widow is the proper party plaintiff, though the recovery is to be distributed as personal property of the husband, which gives the children an in

terest therein; and in Natchez, etc., Co. v. Mullins11 a compromise by the widow of a $6,000 judgment for $1,000 was upheld over the protest of the children.

The law of Pennsylvania, for the purposes of this question, is the same as that of Mississippi, and a settlement by the widow is held valid.12

These cases inferentially support the right of the personal representative to release.

See also, contruing the Pennsylvania statute, and reaching the same conclusion as the Pennsylvania Court, the decision of Judge Hand.13

The case last referred to arose under an Arizona statute giving the right to sue to all or any of certain specified beneficiaries, and requiring the jury to allot the recovery. Under this a verdict was obtained in a suit brought by the widow for herself and certain named beneficiaries. which verdict fixed the recovery in favor of each. The widow then filed a remittitur reducing all the recoveries, including her own, and fixing some at merely nominal

amounts.

This the Court held she could

not do. The case is probably distinguishable from the Mississippi and Pennsylvania

cases on two grounds: first, that under the Arizona statute, the beneficiaries other than the widow had the right, if so advised, to become parties to the record; and second, that in it the rights of the other beneficiaries had been fixed by what amounted to separate verdicts in their favor, and could not therefore he impaired by the widow. So far as I have been able to find, the case has never been cited save in Judge Hand's opinion, supra.

A somewhat peculiar situation exists in Tennessee and Missouri. In Tennessee, the statute gave the right to sue first to the personal representative, second, if he failed to sue, to the widow, and third, if she failed to sue, to the children or to a personal representative for the benefit of the next of kin. In Greenlee v. R. Co.15 it was held that the widow, rightfully suing, had the right to compromise, though the children. had an interest in the recovery or compromise, as the case might be. The same holding was made in Stephens v. Nashville, etc., R. Co.16 and in Prater v. Tennessee, etc., Co.1 Moreover, as long as the right to sue is vested in the widow, she may compromise as well before as after suit is brought, and may receive and give due acquittance for the amount paid by way of compromise.18 But the situation is otherwise where the right has passed to the personal representative for the benefit of the next of kin. Then the widow is merely one of the beneficiaries, and cannot validly compromise the action.1

In Missouri, a similar statute gave the right first to the consort, and the second, if there was none, or if he or she failed to sue within six months, to the minor children. In McNamara v. Stevens 20 the widow sued within six months, but later dismissed the suit-presumably having compromised it. It was held that the children had no right

And in New Jersey, there is a statement in Pisano v. B. M., etc., Shanley Co.23 that there are decisions in other states to the effect that the administrator is so purely a formal party that his release of the cause of action without the consent of the beneficiaries will not be permitted; but no such decisions are cited; and the statement was unnecessary to the decision of the case.

(b) Release By All the Beneficiaries.The courts generally hold that a release by the sole beneficiary, or by all the beneficiaries, is valid.24

But a different doctrine obtains in Indiana.25

And in Kentucky.20

(21) Mo., 154 S. W. 86.

(22) Baltimore, etc., R. Co. v. Hottman, 25 Ohio Cir. Ct. R., 140, as digested in 7 Am. Dig. (Dec. Ed.) 391.

(23) 48 Atl. 618. (24) Kennedy v. 55 Davis, Ala., So. 104; Christie v. Chicago, etc., R. Co., Iowa, 74 N. W. 697; Sykora v. J. I. Case Threshing Co., Minn., 60 N. W. 1008 (under Minnesota statute expenses of last sickness and funeral expenses must be met out of recovery, and persons having claims therefor are beneficiaries, but they must be demanded in the complaint, and settlement would in any case be good as against other beneficiaries); Schmidt v. Deegan, 69 Wis. 300, 34 N. W. 83; McKeigue v. Chicago, etc., R. Co., 130 Wis. 543, 110 N. W. 384, 11 L. R. A. [N. S.] 148; Doyle v. New York, etc., R. Co., 72 N. Y. Supp. 936 (but in this case it additionally appeared that the beneficiary had, subsequently to the settlement, been appointed administrator; and it was held that this appointment related back to the death of the intestate. Moreover, in New York, the sole beneficiary cannot settle so as to leave the personal representative burdened with funeral expenses. Bruck v. New York, etc., R. Co., 151 N. Y. Supp. 286).

(25) Yelton v. Evansville, etc., R. Co., 134 Ind. 414, 33 N. E. 626, 21 L. R. A. 158 (the reasoning of this case would indicate that the personal representative has the right to compromise, but the court states that he could only do this under authority of the court).

(26) Louisville v. Hart's Admr., 143 Ky. 171, 136 S. W. 212, reported sub nom. Louisville v. Schneider, 35 L. R. A. (N. S.) 207 (but in this