Lord Annesley, 2 Sch. & Lef. 607, 634. Many courts of law followed this equitable rule in construing the statute of limitations. First Massachusetts Turnpike v. Field, 3 Mass. 201; Sherwood v. Sutton, 5 Mason (U. S.) 143. See Bree v. Holbech, Dougl. 654. Contra, Troup v. Executors of Smith, 20 Johns. (N. Y.) 33. Later, many of the state codes lent express legislative sanction by providing that the statute should not run until " discovery of the fraud." See WOOD, LIMITATIONS, 3 ed., § 274, appendix. Even under such enactments the statute is held to run not only from actual knowledge of the fraud, but also whenever both the means of discovery and a reasonable cause for suspicion coexist. Archer v. Freeman, 124 Cal. 528, 57 Pac. 474; Higgins v. Crouse, 147 N. Y. 411, 42 N. E. 6; Smalley v. Vogt, 166 S. W. 1 (Texas). When, therefore, as in the principal case, a relation of confidence between the parties prevents suspicion, the statute does not run. Kirkley v. Sharp, 98 Ga. 484, 25 S. E. 562; Arkins v. Arkins, 20 Colo. App. 123, 77 Pac. 256. But the court in the principal case rested its decision on the ground that as the plaintiff had read the conveyance, she had "actual notice of the character of the instrument." Since stupidity, ignorance, or, as in the principal case, inattention born of confidence may prevent comprehension of what is read, such notice is not in fact the necessary result of reading the conveyance. Nor on the ground of policy should such notice be conclusively presumed in an action for fraud, for neither is there culpability in a failure to understand what is read nor should the courts protect a fraudulent defendant on the ground of the credulity of the plaintiff. Fargo Gas & Coke Co. v. Fargo Gas & Electric Co., 4 N. D. 219, 59 N. W. 1066.

- WORKMAN'S COMPENSATION ACTS

CONSTRUC

MASTER AND SERVANT TION OF CLAUSE EXCLUDING OTHER REMEDIES. - An injured seaman applied for a mandamus to the Industrial Insurance Commission to compel his employer to reimburse him for his injury in accordance with the Workman's Compensation Act, which excludes "every other remedy, proceeding, or compensation." 1913 SUPP. WASH. STAT. 667. Held, that the plaintiff is not entitled to the benefit of the act. State v. Daggett, 151 Pac. 648 (Wash.).

Under a similar statute, 1914 SUPP. N. Y. COMP. STAT. 997, it was held that an injured maritime servant could recover. Walker v. Clyde Steamship Co., 765 N. Y. Comb. 529 (Ct. of App.).

An injured maritime servant can sue in admiralty for damages. The Slingsby, 116 Fed. 227. The Judiciary Act, which confers admiralty jurisdiction on the federal courts, saves "to suitors in all cases the right to a common-law remedy where the common law is competent to give it." I U. S. COMP. STAT. 516. This clause has been construed by the courts to include the statutory remedy created by a Workman's Compensation Act. Berton v. Tietjen, etc. Co., 219 Fed. 763; Kennerson v. Thames Towboat Co., 94 Atl. 372 (Conn.). On the other hand, any attempt by a state to modify the admiralty jurisdiction of the federal courts over such a case must necessarily fail. Workman v. City of New York, 179 U. S. 552, 557. See The Fred E. Sander, 208 Fed. 724, 730. Now a statute should not be construed as in conflict with the Constitution and laws of the United States, when it will bear any other interpretation. See Knights, etc. Co. v. Jarman, 187 U. S. 197, 201. It thus follows that the remedy created by the Workman's Compensation Acts should be construed as a substitution for former common-law remedies only, and so be coexistent with a remedy in admiralty, in the case of an injured seaman. The Fred E. Sander, supra. Hence the fact that an exclusive remedy cannot be given in admiralty should not deprive a maritime servant of the benefit of the act.

MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT BILITY OF HEARSAY BEFORE ADMINISTRATIVE TRIBUNAL.

- ADMISSI- An employee

was taken ill while at work and died two weeks later from the effects of an internal hemorrhage which might have been caused by muscular strain or exertion. Declarations of the deceased employee furnished the only evidence as to whether the injury arose "out of and in the course of the employment.' The Workmen's Compensation Act having authorized the disregard of "technical rules of evidence,' the commission based its award upon this hearsay testimony. Held, that the award must be annulled, the rule against hearsay not being a "technical rule." Englebretson v. Industrial Accident Commission, 151 Pac. 421 (Cal.).

On a similar state of facts the New York Workmen's Compensation Commission based an award upon declarations of the deceased employee as to the circumstances of his injury, under an act providing that the commission "shall not be bound by common law or statutory rules of evidence." Held, that the award should be affirmed. Carroll v. Knickerbocker Ice Co., 155 N. Y. Supp. I.

For a discussion of these cases, see NOTES, p. 208.

MUNICIPAL CORPORATIONS

ASSESSMENTS FOR LOCAL IMPROVEMENTS VALIDITY OF FRONTAGE ASSESSMENT FOR PAVING STREET OF VARYING WIDTH. The assessment for paving a street eight blocks long in defendant city was levied equally in proportion to the frontage of the lots, regardless of the varying width of the street. Held, that the assessment was valid. Kaplan v. City of Macon, 86 S. E. 219 (Ga.).

A special assessment is levied for the purpose of collecting part or all of the cost of an improvement from the property especially benefited by it. State v. Jersey City, 36 N. J. L. 56. See 21 HARV. L. REV. 533. Consequently the amount of the assessment must not substantially exceed the benefit to the property. Norwood v. Baker, 172 U. S. 269; Weed v. Boston, 172 Mass. 28, 51 N. E. 204. See 2 PAGE & JONES, TAXATION BY ASSESSMENT, § 651. Assessments by the frontage method have, however, been generally upheld, on the theory that this method will usually approximate a just result. Sears v. Boston, 173 Mass. 71, 53 N. E. 138; Ramsey Co. v. Robert P. Lewis Co., 72 Minn. 87, 75 N. W. 108. But such assessments are invalid as a confiscation of property without compensation if, in fact, the amount assessed on any property greatly exceeds the benefit received thereby from the improvement. White v. Tacoma, 109 Fed. 32. In the principal case there is nothing to show that a uniform application of the frontage method would be unjust, or that property fronting on a wide part of the street would reap a greater benefit from the paving than that facing a narrower part. Giving proper effect to the presumption of the validity of the legislative act, the case seems right. See French v. Barber Asphalt Co., 181 U. S. 324; Savannah v. Weed, 96 Ga. 670, 23 S. E. 900.

QUASI-CONTRACTS

RECOVERY FOR BENEFITS CONFERRED WITHOUT CONTRACT RIGHT OF LIFE BENEFICIARY TO LIEN ON INSURANCE POLICY FOR PREMIUMS VOLUNTARILY PAID. Insurance policies on a husband's life were assigned with other property to trustees for the use of the wife for life and then for her child. The husband covenanted to pay the premiums, and the trustees had discretion to pay them if he failed to do so. The husband being unable to make the payments, the wife paid the premiums for twentyfive years. On the husband's death the wife claimed a lien on the proceeds of the policy for the amount she paid. Held, that she cannot recover. In re Jones' Settlement, [1915] 1 Ch. 373.

One who pays the debt of another, unless the payment was unreasonable or officious, may recover the amount from that other on general quasi-contract principles. Exall v. Partridge, 8 T. R. 308. See 25 HARV. L. REV. 77; 24 HARV.

L. REV. 583. Thus a mortgagee to protect his own interest may pay off a prior incumbrance and hold the mortgagor liable for the amount. Hogg v. Longstreth, 97 Pa. St. 255; Milburn v. Phillips, 143 Ind. 93, 42 N. E. 461; Bowen v. Gilbert, 122 Ia. 448, 98 N. W. 273. In the principal case the husband was legally bound to pay the amount himself, and thus the wife could clearly have a lien on any interest of his. But to repay her the full amount out of the trust fund would practically allow her to force the trustees to pay the premiums and deprive them of their discretion. In re Waugh's Trusts, 46 L. J. Ch. 629. See In re Leslie, L. R. 23 Ch. D. 552, 560, 561. But if a life tenant pays off an incumbrance, he may enforce contribution from the remainderman. Downing v. Hartshorn, 69 Neb. 364, 95 N. W. 801; Whitney v. Salter, 36 Minn. 103, 30 N. W. 755; Jones v. Gilbert, 135 Ill. 27, 25 N. E. 566. See In re Leslie, L. R. 23 Ch. D. 552, 565. Thus, as the wife acted under a strong moral compulsion to protect the interests of her child, on equitable principles she should be entitled to contribution from the remainderman for his proportionate share of the expenditure.

SALE OF FUTURE GOODS -BANKRUPTCY · POSSESSION BY VENDEE PREFERENCE. - The defendant lent money to a partnership, with knowledge of its insolvency, under an agreement that the firm was to manufacture certain property to be his when completed. He took possession of such property within four months prior to the day on which a petition in bankruptcy was filed against the firm. The trustee in bankruptcy sues to recover the property as a voidable preference. Held, that he cannot recover. Sieg v. Greene, 225 Fed. 955 (C. C. A., 8th Circ.).

At one time it seemed that the rule of Holroyd v. Marshall would not afford protection to a mortgagee of future goods if he acquired possession within four months previous to the filing of a petition in bankruptcy against his mortgagor. Matthews v. Hardt, 9 Am. B. Rep. 373; In re Ball, 123 Fed. 164. See 18 HARV. L. REV. 606. But it is now clearly settled that the mortgagee is protected. Thompson v. Fairbanks, 196 U. S. 516; Humphrey v. Tatman, 198 U. S. 91. It seems doubtful whether a similar result in the case of a sale is justified. It is true that when the vendee parts with his money in reliance on a specific return he acquires a right in specie, which at once gives equity jurisdiction, and that the intervening insolvency of the vendor, which renders the legal remedy substantially inadequate, gives ground for equitable relief. But the whole spirit of the Bankruptcy Act seems to make the insolvency of the vendor the signal for proportionate distribution of his assets among all of his creditors, and nothing in the statute justifies a preference of specific over general claims. See WILLISTON, SALES, § 144. Nevertheless, the principal case has the support of a previous Supreme Court decision. Hurley v. Atchison, T. & S. F. Ry. Co., 213 U. S. 126.

SALES BREACH OF WARRANTY - WAIVER OF BREACH BY ACCEPTANCE. In pursuance of a contract to buy and sell all the steers of a certain age then on the ranch of the seller, subject to a fifteen per cent cut, the seller delivered stock depreciated in weight from underfeeding. There was no express warranty in the agreement as to the condition of the cattle. The buyer, because of necessity occasioned by other contracts, accepted the cattle. He did not protest at the time and now seeks to recover damages for the breach. Held, that his right of action does not survive the unprotested acceptance of performance. Cadwell v. Higginbotham, 151 Pac. 315 (N. Mex.).

In ordinary contracts it is well settled that the mere acceptance of a defective performance does not bar the right to sue for a breach. See WILLISTON, SALES, § 485. But in sales and contracts to sell the law is in confusion. Where the

defect in the goods is one which cannot be easily discerned, acceptance never bars the buyer's right of action. Buffalo Barbwire Co. v. Phillips, 67 Wis. 129, 30 N. W. 295; Miller v. Moore, 83 Ga. 684, 10 S. E. 360; Bell v. Mills, 78 N. Y. App. Div. 42, 80 N. Y. Supp. 34. Where the defect is apparent, if the warranty is clearly express, the right to sue will survive a mere acceptance. Day v. Pool, 52 N. Y. 416; Shupe v. Collender Co., 56 Conn. 489, 15 Atl. 405. The same rule applies where the warranty is implied or arises from the description of the goods, provided the sale is executed. Munford v. Kevil, 109 Ky. 246, 58 S. W. 703. But where title has not passed, considerable authority maintains that the buyer's right is destroyed by the mere acceptance of the goods. Day v. Mapes-Reeve Construction Co., 174 Mass. 412, 54 N. E. 878; Reed v. Randall, 29 N. Y. 358. See Gaylord Mfg. Co. v. Allen, 53 N. Y. 515, 519. Contra, English v. Spokane Commission Co., 48 Fed. 196. See Watson v. Bigelow Co., 77 Conn. 124, 130, 58 Atl. 741, 742. The delivery of title to unspecified goods which do not correspond with the warranties of the contract, it is true, furnishes valid consideration to support an accord and satisfaction. See 19 HARV. L. REV. 208. But it is submitted that no waiver of the buyer's rights can occur unless he accept the defective performance as full satisfaction of the seller's obligation, which is by no means a necessary result of accepting defective performance. The question is therefore one of fact to be left to the jury in each case. See Morse v. Moore, 83 Me. 473, 481, 22 Atl. 362, 364. However, the failure to make protest within a reasonable time is strong evidence that the goods were received in full satisfaction, and the Sales Act, to obtain commercial certainty, has made such delay an absolute bar to recovery. See WILLISTON, Sales, § 484.

SCHOOL BOARDS — INJUNCTION AGAINST ABUSE OF DISCRETION POWER TO PASS RULE EXCLUDING MEMBERS OF TEACHERS' UNION FROM SCHOOLS. The Chicago Board of Education appointed some seven thousand teachers, many of whom were members of the Chicago Teachers' Federation, and later passed a rule prohibiting membership in this Federation on the part of the teachers. A taxpayer's suit was instituted to obtain an injunction against the enforcement of this rule. Held, an injunction will issue. People ex rel. Fursman, 3163 Chic. Leg. News 66 (Superior Court of Cook County, Ill.).

On exactly similar facts an Ohio court issued an injunction which was violated and attacked collaterally. Held, that the inferior court had no power to issue the injunction. Frederick v. Owens, 60 Oh. L. Bull. 538, 35

Oh. Circ. Ct. 538.

In general courts are slow to review the acts of an administrative board, deeming it essential to successful administration that if the board act within its powers, its decisions, no matter how unfortunate, should be final. Fitzgerald v. Harms, 92 Ill. 372; Lem Moon Sing v. United States, 158 U. S. 538; Ünited States v. Ju Toy, 198 U. S. 253. School boards are given large discretion in the matter of hiring and dismissing teachers, the statutes generally providing that a teacher "may be dismissed for cause.' See, for example, ILL. REV. Stat., ch. 122, §§ 133, 161. The right of the teacher to have written notice of the charge and to be heard in his defense gives that publicity which is an essential feature of administrative control. As the membership of teachers in a federation is conceivably productive of some slight degree of insubordination in the schools, it would seem to be a possible cause for dismissal. With this established, the fact that a school board acted unwisely in exercising its discretion, cannot give equity power of review. However, Illinois has previously gone to an unusual length in this direction. Adams v. Brenan, 177 Ill. 194, 52 N. E. 314. But elsewhere courts generally refuse to review the decisions of school boards in matters of discretion. Lane v. Morrill, 51 N. H. 422; Wharton v. School Directors, 42 Pa. St. 358; Hysong v. School District, 164 Pa. St. 629, 30 Atl. 482. Again, it is to be noted that the taxpayer's bill in the Chicago case

alleged only that the enforcement of the rule complained of would so disorganize the schools that taxes would be dissipated without adequate return. Though taxpayers' bills are numerous in Illinois they have heretofore been based on a certain injury to the taxpayer. Board of Education v. Arnold, 112 Ill. 11; Martin v. Jamison, 39 Ill. App. 248. See Fitzgerald v. Harms, 92 Ill. 372, 375. While the Chicago teachers have gained a temporary advantage over a blundering school board, the entrance of a court of equity into the field is unfortunate.

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SURETYSHIP - SURETY'S DEFENSES BANK'S FAILURE TO SET OFF CLAIM AGAINST PRINCIPAL DEBTOR. An accommodation note was indorsed to the plaintiff bank at which it was made payable. The bank with knowledge of the accommodation permitted the accommodated indorser to withdraw deposits made after the maturity of the note and sufficient to cover it. It now sues the accommodation maker. Held, that it cannot recover. Tatum v. Bank, 69 So. 508 (Ala.).

At common law, the holder of a bill or note who has knowledge of the suretyship of one party for another has a duty of equitable conduct toward the surety, on pain of discharging him. Laxton v. Peat, 2 Campb. 185; Ewin v. Lancaster, 6 B. & S. 571; Valley Nat. Bank v. Meyers, 17 N. B. R. 257. In some states it is a breach of that duty for a bank which holds accommodation paper to permit the accommodated party to withdraw sums on deposit at or after maturity of the instrument. McDowell v. Bank, 1 Harrington (Del.) 369, 382, 383; Pursifull v. Bank, 97 Ky. 154, 30 S. W. 203. See 2 MORSE, BANKS AND BANKING, 4 ed., § 563; 9 HARV. L. REV. 146. But, by the weight of authority, the surety is not discharged by a mere failure to retain such deposits, as he would be if the bank released a mortgage or pledge to which he might be subrogated. Glazier v. Douglass, 32 Conn. 393; Davenport v. Bank, 126 Ga. 136, 54 S. E. 977; Citizens' Bank v. Booze, 75 Mo. App. 189. Whether the right is regarded as a lien, as in the principal case, or as a set-off, it is well settled that the surety cannot be subrogated to the right of the bank to retain the deposit. See Davenport v. Bank, supra, 146; Pursifull v. Bank, supra. See SHELDON, SUBROGATION, § 124. But, although no right of subrogation is destroyed, the bank, by failing to exercise its right of set-off, which would have afforded a simpler means of satisfying the debt than would be afforded by a pledge, mortgage, or lien, has prejudiced the surety's interests as much as if it had surrendered a security on which it held a specific lien. McDowell v. Bank, supra; Pursifull v. Bank, supra; Law v. East India Co., 4 Ves. 824. Under this view it should make no difference whether the deposits were made before or after the maturity of the note. McDowell v. Bank, supra; Bank of Taylorville v. Hardesty, 91 S. W. 729 (Ky.). See Davenport v. Bank, supra, 144. Cf. People's Bank v. Legrand, 103 Pa. St. 309; Commercial Bank v. Heninger, 105 Pa. St. 496. And it is also immaterial whether the principal debtor is maker or indorser, provided the real relationship between the parties is known to the bank. Ewin v. Lancaster, supra; Guild v. Butler, 127 Mass. 386. Accordingly, the principal case seems correct in holding that the bank should be compelled to make the set-off against the account of the depositor. The court did not have to decide whether the Negotiable Instruments Law would affect the correctness of this result, because the statute of the sister state where the note was payable was not pleaded.

TAXATION · CONSTITUTIONAL RESTRICTION: UNIFORMITY MORTGAGE REGISTRY TAX.- A Kansas statute imposed a tax on mortgages when recorded, making those not recorded unenforceable, and exempting those recorded from the general property tax. The former small registry fee was also continued. Held, that the tax violates the constitutional requirement of "a