The plaintiff, a consenting victim of such a crime, sues the perpetrator. Held, that the plaintiff may recover. Priboth v. Haveron, 139 Pac. 973 (Okla.); Hough v. Iderhoff, 139 Pac. 931 (Ore.).

Both courts argue that consent is rendered legally impossible. This seems questionable. Although common law rape involves non-consent, it does not follow that in a statutory crime of the same name consent is legally nonexistent while present in fact. See Hardin v. State, 39 Tex. Cr. R. 426, 431, 46 S. W. 803, 806. It is less fictitious and equally in harmony with the wording of the statutes cited to say that consent is made immaterial to criminal liability. The more satisfactory basis for the result is the reasoning underlying the well-established doctrine that the consent of either participant in an illegal mutual combat is no defense to an action by the other. Bell v. Hansley, 3 Jones (N. C.) 131; Barholt v. Wright, 45 Oh. St. 177, 12 N. E. 185. Contra, Lykins v. Hamrick, 144 Ky. 80, 137 S. W. 852. This rule appears to rest upon considerations of policy which render it supposedly inadvisable that consent to such a breach of the peace should remove all civil liability. Stout v. Wren, 1 Hawks (N. C.) 420. Such a conception is anomalous in civil law, where consent is normally a complete defense. But the courts have probably been influenced by the criminal-law principle that consent does not excuse an act which tends to a breach of the peace, or severe bodily harm, unless it negatives an essential element of the crime. If the doctrine of these mutual combat cases be accepted, as it must on authority, it seems a fortiori sound to allow an action to the immature victim of such a crime as that in the principal cases, where there has been an express legislative declaration of policy.

ATTORNEYS RELATION BETWEEN ATTORNEY AND CLIENT MEASURE OF DAMAGES FOR DISCHARGE WITHOUT CAUSE. - An attorney was employed under a written contract to procure certain awards, his fees to be a percentage of the recovery. After having made material progress, he was discharged without cause. The client employed another lawyer who procured the awards. The original attorney now sues on the contract. Held, that he may recover the agreed compensation. Martin v. Camp, 161 N. Y. App. Div. 610.

A client may discharge his attorney at any time without cause. In re Prospect Ave., 85 Hun 257, 32 N. Y. Supp. 1013. But such action merely dissolves the relation, and the client remains liable for the breach of the contract of retainer. Texas v. White, 10 Wall. (U. S.) 483. Where the fee is a fixed amount, or if contingent, has been rendered certain by subsequent events, as in the principal case, the attorney may recover the agreed compensation in full. Carlisle v. Barnes, 102 N. Y. App. Div. 573, 92 N. Y. Supp. 917; Webb v. Trescony, 76 Cal. 621, 18 Pac. 796. This measure of damages involves no departure from the usual rule of damages for breach of contract of employment, for it depends upon the impossibility of calculating the value of the contract to the attorney in any other way. Thus where the attorney would have been put to certain inevitable expenses in carrying out the rest of the contract, his recovery is reduced by that amount. Brodie v. Watkins, 33 Ark. 545. On the other hand, if the claim proves worthless after the discharge, an attorney engaged on a percentage basis is only entitled to nominal damages. Swinnerton v. Monterey Co., 76 Cal. 113, 18 Pac. 135. But if the client recovers through the new counsel, or compromises the claim, it seems that the original attorney may sue at his option for the reasonable value of services rendered, instead of on the contract. French v. Cunningham, 149 Ind. 632, 49 N. E. 797.

BAILOR AND BAILEE

BAILMENTS LIABILITY OF BAILEE FOR ACTS OF SERVANT. In pursuance of its contract to call for the plaintiff's car and care for it in its garage, the defendant company sent an employee for the car. This servant took it on a frolic of his own, and while acting outside the scope of his

employment negligently damaged the car in a collision. Held, that the defendant is liable. Southern Garage Co. v. Brown, 65 So. 400 (Ala.).

Under a contract of bailment which contains no special provision concerning the care required of the bailee, it is well settled that he need exercise only ordinary care, and if he has exercised such care, he is not liable for injury done by a third person. Russell v. Koehler, 66 Ill. 459. Injury done by a servant acting outside the scope of his employment would seem to be analogous to injury done by a third person. In cases where the act of the employee is criminal, such as the embezzlement of a special deposit by the cashier of a bank, the law is clear that the bailee is not liable. Foster v. Essex Bank, 17 Mass. 478. The principal case does not seem properly distinguishable from this class of cases and it must be regarded as wrong. It is also opposed to authority, as the opposite result has been reached both in this country and in England in earlier cases. Evans v. A. L. Dyke Automobile Supply Co., 121 Mo. App. 266, 101 S. W. 1132; Sanderson v. Collins, [1904] 1 K. B. 628.

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BILLS AND NOTES DEFENSES - EXTENSION OF TIME TO PRINCIPAL JOINT MAKER - NEGOTIABLE INSTRUMENTS LAW. The defendant signed a joint note as surety for his co-maker. The payee knew of the suretyship relation, but made a binding contract with the principal maker, extending the time of payment, without the knowledge of the defendant, and now sues him. Held, that the plaintiff may recover. Cowan v. Ramsey, 140 Pac. 501 (Ariz.).

A surety co-maker will be discharged, at common law, by a binding extension of time given the principal debtor by a holder with notice of the suretyship relation. Pooley v. Harradine, 7 E. & B. 431; Horne v. Bodwell, 5 Gray (Mass.) 457. The principal case decides that the Uniform Negotiable Instruments Law abrogates this rule and permits recovery against the surety. Section 120 of the act enumerates the different modes of discharging a party secondarily liable, including the case of extension of time to the principal debtor. But it is obvious that a surety co-maker, being "by the terms of the instrument absolutely required to pay the same," is primarily liable under section 192. Section 119 gives five ways of discharging the instrument without mentioning discharge by extension of time to the principal. It is argued, therefore, in the principal case that since the provision as to discharge by extension of time is included in the section dealing with the discharge of parties secondarily liable, and omitted from the section as to the discharge of the instrument, and hence parties primarily liable, the legislative intent was not to discharge parties primarily liable in this manner. Union Trust Co. v. McGinty, 212 Mass. 205, 98 N. E. 679; Cellers v. Meachem, 49 Ore. 186, 89 Pac. 426. Such an inference would not seem necessary, however, since section 119 deals not with the discharge of parties to the instrument, but with the discharge of the instrument itself, and the discharge of the surety co-maker would not be a discharge of the instrument. Hence the omission of the provision as to extension of time would have no significance. By section 196, cases not provided for by the Negotiable Instruments Law are governed by the law merchant. The ordinary rules of suretyship would, therefore, apply to the principal case and the surety co-maker should be discharged by the extension of time. This result seems permissible by a fair construction of the statute, and would avoid overthrowing the established law of suretyship. Farmers' Bank of Wickliffe v. Wickliffe, 134 Ky. 627, 121 S. W. 498. See BRANNAN, NEGOTIABLE INSTRUMENTS LAW, p. 117.

BILLS AND NOTES PAYMENT AND DISCHARGE ·PAYMENT BY ANOMALOUS INDORSER. - The plaintiff indorsed the defendant's note for the accommodation of the payee, in ignorance of an equity in favor of the defendant.

At maturity the defendant refused payment, whereupon the plaintiff took up the note from a holder in due course, and sued the maker. The Uniform Negotiable Instruments Law, section 121, provides that, "where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties." Held, that the plaintiff can recover on the note, and that section 121 of the Uniform Negotiable Instruments Law does not apply. Lill v. Gleason, 142 Pac. 287 (Kan.).

At common law an anomalous indorser who took up an instrument at maturity acquired all the rights of the party from whom he took. Breckenridge v. Lewis, 84 Me. 349, 24 Atl. 864; Moynihan v. M’Keon, 16 N. Y. Misc. 343, 38 N. Y. Supp. 61; Andrews v. Meadow, 133 Ala. 442, 31 So. 971. Literally, this situation now seems to be controlled by section 121 of the Uniform Negotiable Instruments Law. If this section is applicable, the anomalous indorser having had no rights on the instrument to which he could be remitted, would be unable to recover thereon. Such a result has been reached. Quimby v. Varnum, 190 Mass. 211, 76 N. E. 671. See Noble v. Beeman, etc. Co., 65 Ore. 93, 107; 131 Pac. 1006, 1012. In both instances, however, the courts denied that they were applying section 121. The first decision, it is submitted, was warped by the exceptional Massachusetts doctrine, that an anomalous indorser was to be regarded as a co-maker, although this rule had already been abrogated by the adoption of the Negotiable Instruments Law. Cf. Pray v. Maine, 7 Cush. (Mass.) 253. In the principal case the provision for remitter to former rights in section 121 was construed, according to its obvious intention, as applicable only when the party secondarily liable had been himself connected with the title of the instrument. This interpretation reaches the proper esult and its general adoption would accomplish uniformity without the necessity of amendment.

BILLS AND NOTES PURCHASERS FOR VALUE WITHOUT NOTICE - PURCHASER WITH NOTICE FROM INNOCENT PLEDGEE. The plaintiff purchased from an innocent pledgee for value a note given in violation of the Small Loans Act. He bought the note for less than its face value and with notice of the defense, and now sues the maker on the instrument. Held, that he may recover the full amount of the note. Burnes v. New Mineral Fertilizer Co., 105 N. E. 1074 (Mass.).

It is agreed that at common law, in order to avoid circuity of action, the bonâ fide pledgee of a note to which the maker has a defense can recover only the amount of his loan. Stoddard v. Kimball, 6 Cush. (Mass.) 469; Yellowstone National Bank v. Gagnon, 19 Mont. 402, 48 Pac. 762. See II HARV. L. REV. 194. But the rights of the transferee with notice from such a pledgee are not clear on authority. When the pledgor pledges his own notes, the purchaser from the pledgee with notice of the pledge is usually allowed recovery for only the amount of the pledge debt. Peacock v. Phillips, 155 Ill. App. 514. Contra, In re Trust Estate of Woods, Weeks, & Co., 52 Md. 520. The purchaser's rights are likewise limited against an accommodation indorser of the pledgor's note. Berkeley v. Tinsley, 88 Va. 1001, 14 S. E. 842. Cf. Security Bank v. Kingsland, 5 N. D. 263, 65 N. W. 697. See COLEBROOKE, COLLATERAL SECURITIES, § 181. Logically, the principal case seems indistinguishable from the situation where the pledgor pledges his own notes. The purchaser derives his only rights from the pledgee and should be limited to the pledgee's rights. The principal case must be supported, if at all, on the ground that the saleability of the pledgee's security should not be impaired by such a limitation on his power of sale. Under the Negotiable Instruments Law, by section 27 a pledgee is made a holder for value only "to the extent of his lien," and the purchaser in this case is not a holder in due course in his own right within

section 52. But it may be argued that section 27 applies only when the pledgee is suing on the note himself and not when he has exercised a special right of sale.

CARRIERS SLEEPING CARS - LIABILITY FOR LOSS OF BAGGAGE. - The plaintiff, a passenger on defendant's Pullman car, left his bag by the side of the berth when he went to sleep at night. When he awoke in the morning the bag was gone. Held, that these facts alone made out a primâ facie case of negligence. Goldstein v. Pullman Co., 147 N. Y. Supp. 133 (N. Y. App. Div.).

It is generally agreed that the liability of sleeping car companies for the loss of baggage is not that of insurers, but depends on negligence. See 16 HARV. L. REV. 367. Most of the authorities also require other evidence of negligence than the mere loss of the passenger's baggage. See BEALE, INNKEEPERS, § 392. A line of Georgia cases, none of which squarely decides the point, has been the only contrary authority heretofore. Kates v. Pullman Palace Car Co., 95 Ga. 810, 23 S. E. 186; Pullman Co. v. Schaffner, 126 Ga. 609, 55 S. E. 933. The principal case, however, apparently applies the dicta of these cases in full strictness, and holds that a prima facie case of negligence is made out by proving the passenger's loss of baggage on the sleeping car at night, without evidence of specific negligence on the part of the company. Such a doctrine seems a desirable development, for the situation is one where practically all the evidence is in the hands of the sleeping car company or its servants.

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CONFLICT OF LAWS - SITUS OF CHOSES IN ACTION - SITUS OF PROMISSORY NOTES FOR PURPOSES OF TAXATION. - A non-resident died out of the state, leaving in a New York safe deposit vault promissory notes made by residents of Virginia and Illinois. Held, that the notes are "property within the state" subject to transfer tax under New York Laws oF 1905, c. 368, § 1. Wheeler v. Sohmer, 34 Sup. Ct. 607.

For purposes of assessment it is commonly stated that a debt has its situs at the creditor's domicile. Kirtland v. Hotchkiss, 100 U. S. 491. More accurately, the creditor personally is assessed according to the value of his personal assets, whatever their situs. See 27 HARV. L. REV. 107, 114. The truth is that a debt, as such, can have no actual situs. But from ancient times it has been the law that a debt represented by a specialty is situated where the bond is. Byron v. Byron, Croke Eliz. 472. Commissioner of Stamps v. Hope, [1891] A. C. 476. Four justices in the principal case extend this primitive conception to negotiable instruments, despite the contrary authority of Buck v. Beach, 206 U. S. 392. Five justices reject this view, but of these two concur in the decision, holding that New York has jurisdiction over the transfer of the notes, though their situs is elsewhere. Blackstone v. Miller, 188 U. S. 189. See Buck v. Beach, supra, 408. A negotiable instrument does in fact give the debt concrete form, and is considered tangible property for many purposes. See New Orleans v. Stempel, 175 U. S. 309. Moreover, it may be sold for cash anywhere by mere indorsement, and so has a marketable value at the place where the paper is located. Blain v. Irby, 25 Kan. 499. See 21 HARV. L. Rev. 50. The leading opinion of the principal case has, therefore, both logical and practical justification. Fisher v. Commissioners of Rush County, 19 Kan. 414. Contra, Yeoman v. Bradshaw, Holt, 42. The concurring opinion is hard to justify, except by precedent. For artificial reasoning must be adopted to establish jurisdiction over a transfer of property owned by non-residents and assumed to be outside the state.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - PIPE-LINE AMENDMENT TO INTERSTATE COMMERCE ACT. - By an amendment to the Interstate Commerce Act of 1906, Congress provided that all pipe lines engaged in the inter

state transportation of oil should be held common carriers. The act was construed to apply to all pipe lines which transported oil from other wells but their own, irrespective of whether they professed to carry for the public. Held, that the act, so construed, is constitutional. United States v. Ohio Oil Co., 34 Sup. Ct. 956.

For a discussion of this case in the lower court, see 26 HARV. L. REV. 631. For an analysis in connection with the Insurance Rate Case, see NOTES, p. 84.

- PERSONAL RIGHTS

CONSTITUTIONAL LAW LIBERTY TO CONTRACT LEGISLATIVE MINIMUM WAGE FOR WOMEN AND MINORS. A state legislature passed an act creating a commission to declare standards of conditions of labor, hours of labor and minimum wages for women and minor workers in any industry. Failure of an employer to comply with the standards thus to be imposed was made a misdemeanor. Suit was brought to enjoin enforcement of a ruling of the commission fixing a minimum wage for women employed in factories. Held, that the act is constitutional. Stettler v. O'Hara, 139 Pac. 743 (Ore.).

For a discussion of this case and a comparison of the principles involved in minimum wage and maximum hours statutes, see this issue of the REVIEW, p. 89.

CONSTITUTIONAL LAW- POWERS OF LEGISLATURE: DELEGATION OF POWERS DELEGATION OF POWER TO ADMINISTRATIVE OFFICIALS. - The Legislative Assembly of Porto Rico by statute levied a license tax on certain businesses and empowered the Insular Treasurer to classify each one of such businesses into one of five classes based on its importance and volume in comparison with other businesses. The defendant, an officer of a company taxable under this statute, refused to furnish the Treasurer with accounts necessary to assist him in his classification; whereupon mandamus was brought and resisted on the ground that the statute was unconstitutional. Held, that the writ of mandamus should be issued. People of Porto Rico v. Neagle, Sup. Ct. P. R., Aug. 1, 1914 (not yet reported).

For a discussion of the interesting question in administrative law here involved, see this issue of the REVIEW, p. 95.

CONSTITUTIONAL LAW - PRIVILEGES, IMMUNITIES AND CLASS LEGISLATION - VALIDITY OF STATE ANTI-TRUST ACT EXEMPTING COMBINATIONS OF LABOR. The Missouri Anti-Trust Acts, as interpreted by the Supreme Court of the state, applied only to combinations of manufacturers and vendors and exempted associations of wage-earners from the statutory prohibitions against combinations to lessen competition and regulate prices. Held, that the statutes, as interpreted, do not violate the constitutional guaranty of equal protection of the laws. International Harvester Co. v. Missouri, 34 Sup. Ct. 859.

The Fourteenth Amendment does not prohibit a state legislature from passing acts regulating certain classes of persons and property and leaving others unregulated. Soon Hing v. Crowley, 113 U. S. 703. The laws may also operate differently upon the various classes, but the classification must be based upon a reasonable difference in the subjects of the legislation and must apply equally to all members of the classes defined. Barbier v. Connolly, 113 Ū. S. 27, 31. And it is not enough to invalidate the statute that the court does not think its policy a wise one. Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512. The difficulty arises in deciding when the legislative classification has become vicious. The older cases drew the line much more narrowly than we find it drawn in the principal case. Thus the Illinois Anti-Trust Act was declared