distinctions drawn by the court between different sorts of ultra vires acts were perhaps relevant, and the facts deposed to would certainly seem to have warranted the dismissal of the writs.

In the

ACCEPTANCE Of a Deed of CONVEYANCE BY THE GRANTEE. usual case of a conveyance of land, acceptance by the grantee constitutes part of the delivery of the deed. A good delivery may be effected, however, where the deed is given to a third party for the grantee, or even where the grantor himself retains possession of the instrument. In these two latter instances the question arises, how far an acceptance by the grantee, independent of such delivery, is essential to the passing of title. The English courts, though somewhat wavering, take the position that no acceptance is necessary. The American courts, while ostensibly almost unanimous in asserting the necessity of acceptance, are really in conflict on the question. The apparent weight of authority holds that where the deed is beneficial to the grantee, acceptance will be presumed in the absence of actual dissent; but a strong minority of decisions insists that even here actual assent by the grantee is a prerequisite to the passing of title. How far the presumption doctrine has been carried is well illustrated by a recent Arkansas case, where a deed running to the wife, duly executed and delivered by the husband to a third party, was held to pass an immediate title, although it plainly appeared that the wife was ignorant of the existence of the deed until after the death of the grantor. Russell v. May, 90 S. W. Rep. 617.

6

The modern rule requiring a grantee's assent to a conveyance is said to have been established to obviate the practical difficulty of having title with its possible burdens forced upon an unwilling grantee, and is based, as a matter of theory, upon the conception that the transaction is contractual in its nature. The fact that an insane person is capable of taking as a grantee' is, however, fatal to the theory of the doctrine; and, on the practical side, though the requirement of actual consent does rescue a grantee from forced burdens, it also deprives him of benefits, since the rights of attaching creditors and other third parties against the grantor accruing between the delivery and assent, must prevail against the grantee. The presumption of acceptance in the case of beneficial grants substantially relieves the latter situation, but at the expense of grafting another odious fiction upon the law. One situation, however, even this doctrine fails to meet satisfactorily. Where land is conveyed upon trust the deed cannot be regarded as beneficial to the grantee, and the basis of the presumption must fail, thus defeating the trust. The courts, however, have squarely met this situation by vesting title in the trus tee without his assent, subject to the right of disclaimer. The same rule is applied in the case of title passing to a devisee,10 a disclaimer in either

1 Thompson v. Candor, 60 Ill. 244; Exton v. Scott, 6 Sim. 31.

2 Thompson v. Leach, 2 Vent. 198; cf. Siggers v. Evans, 5 E. & B. 367.

8 But see Skipwith's Ex'r v. Cunningham, 8 Leigh (Va.) 271.

4 Mitchell v. Ryan, 3 Oh. St. 377; Wuester v. Folin, 60 Kan. 334.

Welch v. Sackett, 12 Wis. 243.

6 Ibid.

7 Campbell v. Kuhn, 45 Mich. 513.

Welch v. Sackett, supra; Knox v. Clark, 15 Col. App. 356.

9 Adams 7. Adams, 21 Wall. (U. S.) 185; see Ames, Cases on Trusts, 2d ed., 229 n. 10 Tarr 7. Robinson, 158 Pa. 60.

instance relating back so as to remove any burdens imposed. It is difficult to distinguish in principle between a conveyance upon trust and an absolute conveyance, so that the doctrine of title passing without the assent of the grantee subject to disclaimer would seem to be perfectly applicable to both cases, thus attaining the practical benefit of the rule requiring assent without incurring its objectionable features.11

LIABILITY OF CORPORATION DIRECTORS FOR NEGLIGENCE. — It is well settled that directors of corporations are personally liable to the corporation for losses caused by their negligence, but there is a wide variance in the language used by the courts to define the degree of care imposed upon them. The cases which profess to set the most severe standard cite Hun v. Cary 1 to support the proposition that directors are bound to use the high degree of care which men prompted by self-interest generally exercise in their own affairs. Other cases, like a recent Kentucky decision, purport to adopt a milder rule, for which Spering's Appeal is relied upon, namely, that directors are liable only for carelessness so gross as to be conclusive evidence of fraud. Ebelhar v. German American Security Co.'s Assignee, 91 S. W. Rep. 262.

Differing so widely in their statement of the director's duty, the two groups of cases seem at first sight to be in sharp conflict, but an examination of their facts shows that, in reality, they are governed by the same rule. The correct principle, and the one actually underlying the decisions, is that directors in any corporation must devote the amount of care to the business which ordinary men would give under the circumstances. Hun v. Cary1 was an action against the directors of a savings bank, and the defendants were held to a high degree of care. As savings banks solicit the business of small depositors who are seeking safety for their earnings rather than a high rate of interest, and as the men who act as directors of such institutions realize that the confidence reposed in them by the depositors puts them in a fiduciary position, the decision was in harmony with the principle stated above. So high a standard has not yet been applied to cases other than those involving savings banks, but it seems that the same reasoning would apply to the directors of modern life insurance companies. In Spering's Appeal the corporation was conducted merely for profit, and the duty of care actually required was slight. This decision, too, conforms to the correct principle. The directors of an ordinary corporation are men who have not time to watch the details of the corporate business and who frequently do not understand them. They are not expected to devote the same amount of attention to the business as savings bank directors. As to their acts of commission, all that the law requires is that they exercise an honest judgment on the questions coming before them. They are not responsible for mistakes of judgment, however foreseeable they may have been, nor do they guarantee the possession in themselves of skill and business acumen.* When loss results because of their omissions, such as failure to detect dishonest employees, they are ordi

11 See 14 HARV. L. REV. 456; Tiffany Real Property, § 407.

narily not liable if they have used reasonable care in appointing officers, instituting systems of reports, and investigating the things that come under their observation." They are justified in leaving the management to subordinates and they need not watch details.

As what is due care varies, therefore, with the circumstances of each case, it is impossible to formulate general rules which will cover all states of fact, but the tendency is toward a low standard except in a restricted class of cases. Inasmuch as the directors are usually stockholders and interested in the enterprise, the corporation seldom suffers because of the leniency of the law; on the other hand a harsher rule would directly injure the corporation by making desirable men unwilling to serve.

8

2

ESTOPPEL AS TO PART OF A TRANSACTION. It is probable that estoppel by conduct, rightly termed "equitable estoppel," had its beginnings in an injunction against the pleading of facts which it would be unconscionable to assert.1 The doctrine, as often stated, is that when one person has made assertions, which he as a reasonable man should know will be acted upon and should know are false, to another who so acts upon them that the denial of their truth would cause him loss, the former is estopped from maintaining their falsity. The rule, however, as thus stated, needs to be applied with caution. If A has changed his position upon the faith of B's misrepresentation, B should not be permitted to withdraw his words so as to rob A of the advantage he counted upon as arising from the change. But unqualifiedly to estop him from proving the truth may often result in compelling him to assume losses incurred before his duty to speak the truth arose. This is to lose sight of the equitable nature of the proceeding. For example, A is bitten by a dog which B represents is his. When, however, A has brought action against him in tort he denies his ownership. A did not upon B's representation alter his relation to the original cause of action or to the actual wrongdoer, but with respect to a new matter, the costs of his suit. Hence the estoppel should go no further than to saddle B with those costs, as an injunction against pleading the truth should certainly be conditional upon their non-payment. Similar principles apply where A discounts a bill with B's name forged upon it, and after he has paid part of the proceeds is told by B that the signature is genuine. most jurisdictions there can be no ratification of a forgery. There may, however, be an estoppel, but this should extend only to what was done under the influence of B's representations. Of course if B's representa

6 Brannin v. Loving, 82 Ky. 370.

• See The North Hudson, etc., Ass'n v. Childs, 82 Wis. 460.

1 See Horn v. Cole, 51 N. H. 287; 2 Pomeroy, Eq. Jurisp. 3d. ed., § 802.

2 Horn v. Cole, supra; Pickard v. Sears, 6 Ad. & E. 469.

In

Tobey v. Chipman, 13 Allen (Mass.) 123; Grissler v. Powers, 81 N. Y. 57, distinguishing Payne v. Burnham, 62 N. Y. 69.

See Eikenberry v. Edwards, 67 Ia. 14; Phillipsburgh Bank v. Fulmer, 31 N. J. Law 52; contra, Robb v. Shephard, 50 Mich. 189; Stables v. Eley, 1. C. & P. 614, overruled in Smith v. Bailey, [1891] 2 Q. B. 403.

5 Merrill v. Tyler, Seld. Notes (N. Y.); Bryce v. Clark, 16 N. Y. Supp. 854; see DeMoss v. Economy, etc., Co., 74 Mo. App. 117; contra, Ewing v. Dominion Bank, 35 Can. L. Rep. 133, criticised in 19 HARV. L. Rev. 113.

tions have caused A to delay in seeking relief against the forger of the bill who has consequently escaped or parted with his property, A may recover of B the amount advanced before the representation as well as after, for here the position of A with respect to the entire matter has been altered, and the scope of the estoppel should be correspondingly widened. Some of these views, in substance, were recently expressed by the St. Louis (Mo.) Court of Appeals, which held that any liability of a principal based upon equitable estoppel, because of his failure to repudiate the contract of an agent acting beyond the scope of his authority, should extend only to such performance as took place after the duty to repudiate arose. St. Louis Gunning Advertising Co. v. Wanamaker & Brown, 90 S. W. Rep. 737. Some might be disposed to quarrel with the court's treatment of the vexed question of ratification by silence, but the opinion at least embodies a clearly expressed recognition of the true nature of equitable estoppel and of its proper limitations.

RECENT CASES.

ANIMALS DAMAGE TO CHATTELS BY ANIMALS- RECOVERY FOR AS AGGRAVATION OF TRESPASS ON REALTY BY BEES. The defendant's bees entered the plaintiff's close and therein stung to death the plaintiff's mules. The plaintiff brought trespass for the value of the mules, offering no proof of negligence. Held, that he cannot recover. Petey Mfg. Co. v. Dryden, 62 Atl. Rep. 1056 (Del. Superior Ct.).

The owner of a wild animal is commonly absolutely liable for its mischiefs. Filburn v. Peoples Palace and Aqarium Co., 25 Q. B. 258. Though bees have been classified as wild animals for purposes of ownership, they are not so treated in fixing responsibility for their evil deeds. Earl v. Van Alstine, 8 Barb. (N.Y.) 630; Cf. Parsons v. Manser, 119 Iowa 88. This is reasonable, as they are no more prone to violence than many domestic animals, and their culture is too useful to be discouraged by imposing an insurer's liability. But in the principal case the bees were trespassing; and as a rule an owner is liable, irrespective of negligence, for his animals' trespasses on real property; all injury to chattels during the trespass being counted in aggravation of damage, even though the trespass itself be purely nominal. Dolph v. Ferris, 7 W. & S. (Pa.) 367; cf. Van Leaven v. Lyke, í N. Y. 515; Loftus v. Ellis Iron Co., L. R. 10 C. P. 10. There is however, no absolute liability for the trespasses of dogs because their trespasses are not usually injurious to the realty. Brown, Esq., v. Giles, 1 C. & P. 118. The same rule should obviously apply to bees, and if the owner is not to be held absolutely responsible for their trespasses on realty, a fortiori he should not be so held for incidental damage to personalty.

BANKRUPTCY-PARTNERSHIP AND INDIVIDUAL CLAIMS AND ASSETS ADMINISTRATION OF NON-BANKRUPT PARTNER'S ESTATE. A partnership was adjudged bankrupt, but some partners had not participated in the act of bankrupcy, and others, being in the exempt class, could not be adjudicated bankrupts. By an order of the court all the partners were required to turn over their property to the trustee of the partnership estate, to be administered as if each had been adjudged bankrupt. Held, that as an incident to the administration of the partnership estate, a court of bankruptcy may administer

Knights v. Wiffen, L. R. 5 Q. B. 660; Continental Bank v. National Bank, 50 N. Y. 575.

the individual estate of the partners. Dickas v. Barnes, 140 Fed. Rep. 849 (C. C. A., Sixth Circ.).

The present Bankruptcy Act marks a radical departure in treating a partnership as a legal person apart from its constituent members. Therefore a partnership may be put into bankruptcy without proceeding against the individual partners. In re Stein, 127 Fed. Rep. 547. Conversely, the bankruptcy of all its members does not give jurisdiction over a firm and its assets. In re Mercur, 116 Fed. Rep. 655. But an adoption of the mercantile conception of a partnership compels a recognition of the fact that the true relationship of the partners to the partnership is that of contributories or quasi-sureties. See 19 AM. L. REV. 32. The liability of the partners to satisfy any deficiency in meeting firm obligations is one of the assets of the firm. This is recognized in refusing to regard the firm insolvent while one of its members is solvent. Vaccaro v. Security Bank, 103 Fed. Rep. 436; In re Perley & Hayes, 138 Fed. Rep. 927. If, then, the partnership is a distinct legal entity, and the right to call upon the partners for contribution is merely a firm asset, that asset should be collected like other assets, and there is no more basis for administering the individual estates of the partners, who could not be adjudicated bankrupts, than that of a surety on an obligation to the firm. Yet the principal case finds support in previous rulings. In re Stokes, 106 Fed. Rep. 312; see In re Meyer, 98 Fed. Rep. 976. This unwarranted result indicates a failure to appreciate fully the legislative innovation in partnership law, and shows an unconscious adherence to the older law.

BANKS AND BANKING DEPOSITS · DIRECTORS' LIABILITY FOR DEPOSITS RECEIVED AFTER KNOWN INSOLVENCY. With knowledge of a bank's insolvency a director permitted it to receive deposits in the usual manner. The plaintiff became a surety on the bond of the bank to secure deposits of county funds, and having paid the depositing county for the loss it suffered through the insolvency, sought to recover that sum from the director. Held, that the director is not liable, since he is not a trustee for creditors, nor does he individually owe depositors any duty. Hart v. Evanson, 105 N. W. Rep. 942 (N. Dak.).

Where directors are not under a statutory liability to depositors for deposits received after knowledge of the bank's insolvency they have been held directly liable at common law. Foster v. Bank of Abingdon, 88 Fed. Rep. 604; Cassidy v. Uhlmann, 27 N. Y., App. Div., 80, 163 N. Y. 380; Delano v. Case, 121 Ill. 247. It is true, as this decision points out, that those cases regard directors as trustees for creditors - -a position hardly tenable. Bank v. Hill, 148 Mo. 380. But it does not follow that the directors are therefore under no liability whatever to such depositors. An officer or director who, knowing the bank's insolvency, expressly represents it to be sound, is liable in deceit. Giddings v. Baker, 80 Tex. 308. Although an individual by silence as to his embarrassed condition does not ordinarily represent his solvency, it has been suggested, that since a bank is under an extraordinary duty to discontinue business upon known insolvency, for a director to permit it to operate thereafter is a representation of solvency. Cf. St. L., etc., Ry. Co. v. Johnston, 133 U. S. 566, 578. Again, a bank which receives deposits under such circumstances becomes a constructive trustee, ex maleficio, for the depositor. Wasson v. Hawkins, 59 Fed. Rep. 233. And it is submitted that the director who acquiesces in mingling such funds with general assets colludes in a breach of trust and should be liable to the depositor and therefore, in the principal case, to the plaintiff, who is subrogated to the depositor's rights. Cf. United Society v. Underwood, 9 Bush (Ky.) 609, 619. BILLS AND NOTES NEGOTIABILITY "PAYABLE ABSOLUTELY." defendant, a joint-stock company, issued coupon bonds payable out of the assets of the association, the stockholders, however, to be free from liability upon them. Held, that the bonds are not non-negotiable as being payable only out of a particular fund. Hibbs v. Brown, 35 N. Y. L. J. 249 (N. Y., App. Div., April, 1906).

The

From the necessity of making negotiable paper in the highest degree an