citizens, to pay, since under it, A who owns one million dollars worth of realty and no personalty escapes taxation, while B who owns one hundred dollars worth of personalty is taxed; — and yet obviously A is more able to pay than is B. If the state can collect a tax of this sort, solely from the owners of personalty lying without the jurisdiction, a tax on red-headed persons to the exclusion of others, being scarcely less arbitrary, would seem to be legal. Taxation is relative; the amount that A pays must bear some fair ratio to the amount that B pays, and as the present case infringes upon this principle, by taxing A without taxing B who is equally able to pay, it is invalid. It might be suggested that, since this form of taxation has been practiced for a long time, it has become sanctioned by law and hence is due process. The court, however, seems properly to have considered that, for the decision of the question at issue, a broader concept of due process of law is required.

"TENTATIVE" TRUSTS IN SAVINGS BANK DEPOSITS. A trust may be created without consideration either by a transfer of the property to another as trustee,' or, since Lord Eldon's time, by a mere declaration by the owner that he holds the property in trust.2 Though a power of revocation may be reserved, a trust without such power, when once created, is irrevocable.1 These fundamental principles have sometimes been lost sight of by the courts in considering cases of trust deposits in savings banks, a common form of gratuitous trusts. Massachusetts, for example, arbitrarily requires notice to the beneficiary. New York also appears to depart from principle. By a case decided in that jurisdiction last year, it was held, contrary to previous decisions of the lower court, that the mere fact that a deposit stands in the depositor's name as "trustee " for another is not ground for holding that an irrevocable trust was created, but establishes the creation of a "tentative" trust merely, revocable by the depositor in his lifetime." As a question of evidence, the decision is not unreasonable, for in view of the common practice of making deposits in the form of trust accounts to evade some rule of the bank, it is perhaps unsafe to find from the mere form of deposit an actual intent to create a trust; and if such intent is not found, no trust should be held created. But the decision strikes deeper than that; it assumes that a trust was created, but treats it as revocable. Moreover, the court says that if the depositor dies without having revoked the trust, the presumption arises that an absolute trust was created as to the balance on hand at his death. Much can be said, it is true, in favor of the result of the decision, for it gives effect to the intention with which such deposits are commonly made by the humbler class, namely, to enjoy full

1 Van Cott v. Prentice, 104 N. Y. 45. See also Ames, Cases on Trusts, 2d ed., 233 n.

2 Ex parte Pye, 18 Ves. 140.

3 Perry, Trusts, 5th ed., § 104. See also Ames, Cases on Trusts, 2d ed., 233 n.

4 See Dickerson's Appeal, 115 Pa. St. 198, 210.

5 Clark v. Clark, 108 Mass. 522.

6 Robertson v. McCarthy, 66 N. Y. Supp. 327; Jenkins v. Baker, 78 N. Y. Supp.

1074.

7 Matter of Totten, 179 N. Y. 112.

8 As a rule limiting individual deposits, or giving a higher rate of interest on small deposits. See Brabrook v. Boston Bank, 104 Mass. 228; Weber v. Weber, 9 Daly (N. Y.) 211.

9 Brabrook v. Boston Bank, supra.

11

ownership of the money during life, but to secure its passage to the named beneficiary upon death. While it may be possible to effect this intention. without violating fundamental principles, it is not clear that the New York decision is based upon the correct theory. The transaction must plainly be taken as a present trust if anything, else we meet two difficulties: first, that we are allowing what is in substance a testamentary disposition in irregular form,10 and second, that equity will not enforce an incomplete voluntary trust. To call it a present trust and still effectuate the depositor's intention can only be done, perhaps with some effort, by finding a power of revocation impliedly reserved to the depositor, who, while the trust remains unrevoked, is trustee for himself for life, with full power of disposal, remainder to the named beneficiary. This theory, however, admittedly somewhat over-nice, does not seem to be the one the court proceeds upon, the apparent reasoning being that a trust of this kind is in its nature revocable during life, but made absolute by death. The idea of death perfecting the trust is clearly indefensible, for the trust if ever created was created at the time the deposit was made, and the sole question is whether the depositor then intended to create a trust of the complex character described. That the doctrine of tentative trusts will grow by application to analogous cases is shown by a recent New York decision, Lattan v. Van Ness, 95 N. Y. Supp. 97, which held merely tentative a trust created by transfer of the deposit and the bank book to another as trustee for a third party. Unless this decision can be rested on a similar theory to that suggested above, it would seem a greater departure from principle than the earlier case, for the irrevocability of a trust created in this way was established much earlier and with a sounder basis than that created by mere declaration.

EFFECT OF ACCEPTANCE ON Right to Sue for Defective PERFORMANCE. A question constantly arising under a contract of sale is whether acceptance of a tender of goods differing from the terms of the contract as to quality, quantity, time or place of delivery prevents a recovery of damages for the imperfect performance. If an express warranty of quality accompanying the sale has been broken, courts generally are agreed that a right of action survives acceptance.1 But there is confusion in cases of implied warranties. Cases of this kind arise most frequently in reference to the merchantable quality of goods. The weight of authority is that mere acceptance does not prevent the buyer from afterward recovering for breach of promise, either by a separate action, or by counter-claim in an action brought by the seller. Some courts, however, hold that such acceptance precludes any claim for defective performance. On a similar question as to time of delivery, the Kentucky court recently stood evenly divided as to whether the buyer waived any cause of action for delay. Lucile Min. Co. v. Fairbanks, Morse & Co., 87 S. W. Rep. 1121.

8

Though most courts in this class of cases, as in cases where inferior goods have been delivered, hold that mere acceptance does not prevent the buyer

10 See Nicklas v. Parker, 61 Atl. Rep. 267 (N. J.).

11 See Bartlett v. Remington, 59 N. H. 364.

1 See Mechem, Sales, 1st ed., § 1395.

2 English v. Spokane Commission Co., 57 Fed. Rep. 451. See Williston's Cases on Sales, 2d ed., 779, note 1.

8 Studer v. Bleistein, 115 N. Y. 316. See 16 HARV. L. REV. 465, 468.

from suing for delay, there is considerable authority to the contrary, on the ground that he has waived his right."

6

If by "waiver" these courts mean a gratuitous renunciation of a cause of action, once accrued, the cases cannot be supported, for such waiver is really a release, and to be binding must be founded on consideration; though waiver of a defence need not be. The term "waiver" is, however, used loosely in the cases, and it would be unfair to infer that courts always mean to allow a gratuitous release of a cause of action, for it is often possible to find consideration. The seller, after having broken his promise, is not bound to make a subsequent tender, so that such tender, being a legal detriment, may constitute the consideration for an accord. By this use of the term "waiver," then, courts may be taken to mean a contract to waive or, more accurately, an accord and satisfaction. Viewed in this way, the question becomes mainly one of fact, whether the parties actually made this new agreement. It should be clear that, when the buyer explicitly states that the subsequent tender is not taken as satisfaction, no new agreement can be found. On the other hand, it should be equally clear that when the seller states or his conduct implies that the tender is an offer to an accord, the acceptance completes an accord and satisfaction which precludes the buyer. from claiming damages for defective performance. The main conflict in the decisions is when neither party has said anything. In such a case it is difficult to find mutual assent to the new agreement. It seems more natural to suppose that the seller's late tender is an attempt to carry out the original contract to the best of his ability. His action, therefore, amounts to a waiver on his part of his right not to be compelled to make a late tender, which, as it is not a release of a cause of action, obviously requires no consideration. All doubts should be construed in favor of the buyer, since the seller alone has been at fault. Whenever, accordingly, tender and acceptance are made without explanation on either side, it may well be ruled, as a matter of law, that there is no evidence upon which a jury could find that the seller had satisfied the burden of proving an accord and satisfaction.

MAN.

RECENT CASES.

ADMIRALTY - TORTS - LIABILITY OF SHIP FOR WILFUL TORT OF SEAOne of the crew of a steam-tug, acting outside the scope of his employment, wilfully blew off steam and hot water from the boiler so as to deluge the side of another tug. Held, that the former vessel is liable for the damage done. The Bulley, 138 Fed. Rep. 170 (Dist. Ct., S. D., N. Y.).

At common law, a master is liable only for those wilful acts of his servants which are done within the scope of their employment. Mott v. Consumers' Ice Co., 73 N. Y. 543. And in admiralty by the English rule, it is doubtful whether the vessel can be proceeded against where the owner would not be personally

4 Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203. See Garfield & Proc. tor Coal Co. v. Fitchburg R. R. Co., 166 Mass. 119.

5 Roby v. Reynolds, 72 N. Y. 487; Minneapolis Threshing Machine Co. v. Hutchins, 65 Minn. 89.

See Anson, Contracts, 10th ed., 334; 18 HARV. L. REV. 365.

7 Sigourney v. Wetherell, 6 Met. (Mass.) 553; Uhler v. Farmers' National Bank, 64 Pa. St. 406.

8 Jones v. National Printing Co., 13 Daly (N. Y.) 92.

liable. The Druid, I Wm. Rob. 391, 399; see also CARVER, CARRIAGE BY SEA, 4th ed., § 707. In America, however, the vessel is liable regardless of the personal responsibility of the owner, on the theory that the vessel itself is the wrongdoer. United States v. Brig Malek Adhel, 2 How. (U. S.) 210, 233; The China, 7 Wall. (U. S.) 53, 68. But if the vessel itself is not the instrument in the wrongdoing, there seems no ground for holding it liable as the offender; and in such a case, therefore, our courts would probably follow an English decision that where the crew of one vessel cut the cable of another alongside, the former vessel was not liable. Currie v. M'Knight, [1897] A. C. 97. Whether the vessel is the instrument may often be difficult to determine; and perhaps no more definite test can be laid down than that it may be so regarded, whenever the vessel itself or any integral part thereof is employed in the wrongdoing. Here the vessel seems clearly the instrument, so that the general American doctrine applies.

AGENCY - CREATION OF AGENCY-WHETHER SPECIAL POLICE OFFICER IS AGENT OF EMPLOYER. The charter of New York City provided that the police board might, on application, appoint special patrolmen to be paid by the applicant, but to be subject to the orders of the chief of police, and to "possess all the powers and discharge all the duties of the police force, applicable to regular patrolmen." A special patrolman, appointed under this provision on the application of the defendant, arrested the plaintiff. Held, that, in an action for false imprisonment, the defendant is not liable for the arrest, as he did not specifically request it. Samuel v. Wanamaker, 107 N. Y. App. Div. 433.

This question arises on statutes usually falling into one of two classes. The first class, for instance, makes the conductors or station agents of railroads, by virtue of their positions as employees, conservators of the peace, with power and duty to arrest disorderly persons on trains or in stations. The second class is typified by the statute in the present case. In the former class it seems that the employee is not actually made an officer of the state, but rather that the powers of the railroad are increased to better enable it to perform its duties as a common carrier. The railroad, therefore, is held liable for the misuse of this authority. King v. Illinois Central Rd. Co., 69 Miss. 245. But in the principal case it is clear that the special patrolman was an officer of the state, acting as a member of the police force, and that the defendant would have no power to restrain him from performing his duty. Cf. Sharp v. Erie Rd. Co., 90 N. Y. App. Div. 502. That he was paid by the defendant is not material. Woodhull v. Mayor, etc., of Brooklyn, 150 N. Y. 450. The patrolman could not be the servant of the defendant while performing acts as an officer of the state. Railway Co. v. Hackett, 58 Ark. 381.

ATTACHMENT OF REALTY EFFECT. The plaintiff, having brought an action in a federal court, attached certain realty of the defendant. Later, a receiver under state insolvency proceedings against the defendant took possession of the property, and instituted proceedings in the state court to enjoin the federal marshal from interfering therewith. The plaintiff moved the federal court to enjoin the action of the receiver. Held, that the motion must be denied. Ingraham v. National Salt Co., 139 Fed. Rep. 684 (Circ. Ct., E. D., N. Y.).

It is generally recognized that comity forbids interference by one court of concurrent jurisdiction with property in the "possession" of another. Buck v. Colbath, 3 Wall. (U. S.) 334. The case under consideration turns on the question whether such "possession " is obtained by the attachment of realty. The court holds that it is not; and this result is supported by another circuit court decision. Re Hall & Stilson Co., 73 Fed. Rep. 527. But it is as squarely opposed by a holding and a strong dictum in circuit courts of appeal. Gates v. Bucki, 53 Fed. Rep. 961; Southern, etc., Co. v. Folsom, 75 Fed. Rep. 929. Though the federal authorities are divided there are several state dicta to the effect that there is no possession in a court by virtue of the attachment of realty. Scott v. Manchester Print Works, 44 N. H. 507. It is true that in the case of personalty attached and corporeally taken into the possession of an

officer, an attempt by another court to take custody of the same goods would precipitate an unseemly physical struggle. Yet no such result need follow in the case of realty where actual possession is never taken on attachment. Therefore the policy of the rule of non-interference does not apply.

ATTORNEYS COMPENSATION AND LIEN LIEN ON FUND RECOVERED FOR PERSON OTHER THAN CLIENT.-Minority stockholders of a corporation brought action against certain directors, with whom the corporation was joined as defendant, to recover dividends wrongfully paid. After commencement of the action, but before trial, the defendant directors repaid to the corporation the full amount claimed. Held, that the plaintiffs' attorneys are not entitled to have their claim for compensation declared a lien thereon. Matter of Meighan, 106 N. Y. App. Div. 599.

The New York Code of Civil Procedure, § 66, gives an attorney a lien upon his client's cause of action that cannot be affected by any settlement between the parties before judgment. But here the attorneys were not retained by the corporation; and the general rule is that an attorney must look to his client alone for his fee, not to other persons who may be benefited by the action. Scott v. Dailey, 89 Ind. 477. It is true that the minority stockholders merely set the judicial machinery in motion, and that in effect the action is that of the corporation. Poм. EQ. JUR., зd ed., § 1095. And doubtless they should be given the right of reimbursement for reasonable attorney's fees from the fund recovered in an action which the corporation should have brought. Meeker v. Winthrop Iron Co., 17 Fed. Rep. 48; and see Trustees v. Greenough, 105 U. S. 527. But the attorneys should look to their clients for remuneration, and not be given a direct lien on this fund. If the minority stockholders had agreed that their attorneys should have one-quarter of the judgment recovered, no one would maintain that the attorneys would have a lien for this amount against the fund paid to the corporation. There is, however, direct authority against this decision. Grant v. Lookout Mountain Co., 93 Tenn. 691; Central Rd., etc., of Georgia v. Pettus, 113 U. S. 116, 124.

ATTORNEYS COMPENSATION AND LIEN-PRIORITY OVER RIGHT OF SET-OFF. The defendant had obtained a judgment against the plaintiff for costs. In the same cause of action, though upon an independent appeal in a different court, the plaintiff secured a judgment against the defendant upon which her attorney claimed a lien for disbursements. 'The defend

ant's motion to set off his judgment against the plaintiff's judgment was denied. The defendant appealed. Held, that the attorney's lien has priority over the right of set-off. Smith v. Cayuga Lake Cement Co., 107 N. Y. App. Div. 524.

The conflict in England on this question between the courts of Common Pleas and the King's Bench was finally settled after the Judicature Acts of 1873 in favor of the equitable rule that the attorney's lien is subject to a set-off. See JONES, LAW OF LIENS, 2d ed., § 215. There is a singular conflict in this country. If the client has assigned the judgment to his attorney before an attempt at set-off has been made, the attorney's right will defeat the set-off. Ripley v. Bull, 19 Conn. 53; contra, Fitzhugh v. McKinney, 43 Fed. Rep. 461. But if no such assignment has been made, the courts are about evenly divided as to whether the lien is prior. The New York court has already allowed the lien to prevail when the judgments were rendered in separate actions although between the same parties. This court now applies the rule where the judgments are rendered in the same action. The attorney's lien is a derivative claim depending upon the interest of his client in the judgment. If this interest in the hands of the client is subject to an existing right of set-off, logically it is difficult to see how the attorney has a greater right. Cf. National Bank of Winterset v. Eyre, 8 Fed. Rep. 733.

BANKRUPTCY - PREFERENCES - GIVING POSSESSION UNDER A PRIOR BILL OF SALE. More than four months before bankruptcy, A gave B a bill of sale of her stock in trade as security for a loan, but the bill of sale was not