covering the property by mistake granted to the defendant. Held, that the defendant holds the land in trust for the plaintiff and must convey to him. Lamb v. Schiefner, 40 N. Y. L. J. 1495 (N. Y., App. Div., Jan. 8, 1909).

It is obviously inequitable that a grantee retain property not intended to be conveyed to him. As between the original parties equity will in such case either allow complete mutual restitution or convert the grantee into a constructive trustee of the property inadvertently passed, and order a reconveyance. Brown v. Lamphear, 35 Vt. 252. It has been declared in general terms that redress will also be given as between those claiming under the original parties in privity. I STORY, EQ. JUR., 13 ed., § 165. Privity in this connection has been variously interpreted. See White v. Kingsbury, 77 Tex. 610; Farley v. Bryant, 32 Me. 474. It is submitted that on principle and authority no narrower rule should govern than that applicable to the running of equities generally. May v. Adams, 58 Vt. 74. Thus conceived, privity may be based either upon assignment of the contract or upon succession to the property. By construing the common grantor's deed to the plaintiff as a transference of his beneficial interest, the court readily finds privity of estate. A desirable result is accordingly achieved by correct technical processes. See Widdicombe v. Childers, 124 U. S. 400.

CORPORATIONS Federal JuRISDICTION FORMATION OF NEW CORPORATION TO EFFECT DIVERSITY OF CITIZENSHIP. A South Dakota corporation brought ejectment against a citizen of Georgia in the United States Circuit Court, claiming jurisdiction by diversity of citizenship. The plea showed that the plaintiff was not the real party in interest, but had been organized and was doing business that citizens of Georgia might use its corporate name in order to create an apparent diversity of citizenship, and so get into the federal courts. Held, that the action be dismissed, as an attempted fraud on the court's jurisdiction. Southern Realty Investment Co. v. Walker, U. S. Sup. Ct., Ján. 4,

1909.

This decision is the logical outcome of a number of similar cases, where the property in controversy was conveyed to a new corporation organized for the purpose of acquiring federal jurisdiction. The Supreme Court has uniformly dismissed these suits. Lehigh Mining & Mfg. Co. v. Kelly, 160 U. S. 327; Miller & Lux v. East Side Canal, etc., Co., 211 U. S. 293. The fraud is still more palpable where the cause of action is assigned, or where the name of the corporation organized for the fraudulent purpose is "borrowed." An assignment to an existing foreign corporation doing a legitimate business would probably be treated in the same way, since the transaction would be as much for the sole benefit of the real owner as in the case of a transfer of the property. However, a bona fide purchaser of the claim, or of the property, should, of course, be allowed to sue. For a discussion of the principles involved, and a consideration of the Miller & Lux case, see 22 HARV. L. REV. 290.

EQUITABLE CONVERSION Devolution after Total Failure of PURPOSES OF CONVERSION. By a marriage settlement, real estate was conveyed by the settlor to trustees to the use of the settlor for life, and then to the use of trustees upon trust to sell for certain specified purposes. Afterwards, by his will, the settlor devised all his interest in these estates to his successor in fee. At the time of the settlor's death all the purposes for which conversion had been directed had failed. Held, that these estates devolve as realty under the testator's will. In re Lord Grimthorpe, [1908] 2 Ch. 675.

When real estate is settled upon trust to sell for certain purposes, the general rule is that the conversion takes effect as soon as the deed is executed. Griffith v. Ricketts, 7 Hare 299. Under this rule, the estates would be treated as personalty from the time of the marriage settlement. Nevertheless, since the settlor possessed the entire beneficial interest at the time of his death, he was entitled to elect, as he did by his will, that the property should remain in the form of realty. See Harcourt v. Seymour, 2 Sim. N. S. 12; Stead v. Newdigate, 2 Meriv. 521. The court, however, obtained the same result by the less artificial

theory that since no one was ever entitled to enforce the sale, there was never any conversion into personalty. See Davenport v. Coltman, 12 Sim. 610. The case would seem somewhat clearer if it were held that a conversion does not take place until the contingency upon which the sale is to be made has occurred. See Paisley v. Holzshu, 83 Md. 325. But see Clarke v. Franklin, 4 Kay & J. 257. Such a view would make applicable the rule, that there can be no conversion where all the purposes for which the conversion was directed have failed before the time when the conversion would otherwise occur. Read v. Williams, 125 N. Y. 560; Smith v. Claxton, 4 Madd. 484.

EQUITABLE CONVERSION WHETHER SURPLUS PROCEEDS OF SALE OF LAND BY COURT DESCENDS AS REALTY OR PERSONALTY. - On A's death B became entitled to certain land. This land was subsequently sold by order of the court for the payment of the costs of settling the estate. After the sale B died intestate. Held, that the surplus resulting from the sale sonalty. Burgess v. Booth, [1908] 2 Ch. 648.

descends as per

This decision reverses that of the lower court, criticized in 21 HARV. L. REV. 630.

ESTOPPEL-ESTOPPEL IN PAIS - FUTURE CONDUCT AS BASIS OF ESTOppel. A sold land to B, taking a mortgage in part payment. B agreed to improve the land and to resell to A, who stipulated in the agreement that his mortgage should be subordinated to any mortgage which B might place on the premises to secure the payment of contemplated building loans. C, to whom B showed the agreement, made loans to B, and took a mortgage on the premises. Subsequently B released A from his subordination agreement. Held, that A, in seeking to foreclose his mortgage, is estopped to set up its priority. Loudner v. Perlman, 40 N. Y. L. J. 1439 (Dec., 1908).

In England a representation as to future conduct cannot form the basis of an estoppel. See Jorden v. Money, 5 H. L. C. 185, 214. In this country the tendency of the courts, expressed mainly in dicta, is to make an exception in cases where the representation relates to the intended abandonment of an existing right, if the representation is made to influence others and is in fact acted upon. Insurance Co. v. Mowry, 96 U. S. 544. In such cases equity should not aid the promisor in evading his undertaking. Faxon v. Faxon, 28 Mich. 159. But the decision here may be supported on another ground. In New York an agreement made for the benefit of creditors of the promisee gives them a vested right against the promisor when they show their consent by word or act. Gifford v. Corrigan, 117 N. Y. 257. In the case considered the legal remedy of C, the creditor, is distinctly inadequate, and equity, therefore, should grant him specific performance. Hermann v. Hodges, L. R. 16 Eq. 18. Then C's right to specific performance of A's agreement to subordinate his mortgage gives C an equitable defense in a foreclosure by A. Randall v. White, 84 Ind. 509.

EXECUTORS AND ADMINISTRATORS - ADMINISTRATION BONDS SURETY'S LIABILITY. B, the executrix of X, found among the assets of the estate shares of stock which in good faith she inventoried. She sold them and applied the money to the purposes of the estate. It subsequently appeared that the stock had been paid for by X with forged bonds. A, a judgment creditor of X, sued B and her surety on their bond. Held, that since the executrix appropriated the money as part of the estate, the surety is liable on his bond. Wiseman v. Swain, 114 S. W. 145 (Tex., Ct. App.).

The surety on an executor's bond obligates himself only for the principal's faithful administration of the assets. Campbell v. Sacray, 19 Ky. L. Rep. 1912. Assets are such things as the executor may properly appropriate to paying debts and legacies. Given's Case, 34 N. J. Eq. 191. By the weight of authority trust funds coming into the hands of an executor are not assets of the estate, even though treated as such by the executor. People v. Petrie, 191 Ill. 497.

Contra, Matter of Hobson, 61 Hun (N. Y.) 504. The law is the same where rents are collected by the executor. McPike v. McPike, 111 Mo. 216. In the case considered, since the shares were acquired by the testator's fraud, the proceeds of their sale should be held by the executrix on a constructive trust. American Sugar Refining Co. v. Fancher, 145 N. Y. 552. Clearly, then, the shares and their proceeds, which were incapable of being received by the executrix in her official capacity, cannot be regarded as assets. Campbell v. Sacray, supra. The decision, which would make the determination of what are assets depend on their treatment by the executor, is therefore difficult to support or reconcile with authority.

EXECUTORS AND ADMINISTRATORS RIGHTS, POWERS, AND DUTIESRIGHT OF SET-OFF AGAINST LEGATEES OR HEIRS. - The defendant was a beneficiary under the will of A and the residuary legatee under that of B. A debt due from B to A was barred by the Statute of Limitations. The trustees of A's estate took out a summons to determine the question of the defendant's liability to the estate. Held, that the defendant need not bring into account the amount of the debt as against his share of the testator's estate. In re Bruce, [1908] 2 Ch. 682 (Ct. App., Oct. 27, 1908).

For a discussion of this case in a lower court, see 22 HARV. L. REV. 143.

EXECUTORS AND ADMINISTRATORS RIGHTS, POWERS, AND DUTIES WAIVER OF STATUTE OF LIMITATIONS By Interested Executor. - A promissory note was barred by the Statute of Limitations before the maker's death. One of his executors, who was also one of the payee's heirs-at-law, made a payment as executor on account of the note. The payee's administrator brought a bill in equity to recover the amount of the note, to which the maker's other executor pleaded the statute. Held, that the note is barred. Haskell v. Manson, 39 Banker and Tradesman 264 (Mass. Sup. Jud. Ct., Jan. 7, 1909). Many of those jurisdictions which allow an executor to waive the Statute of Limitations extend the rule so as to make a waiver by one co-executor binding upon the others. Shreve v. Joyce, 36 N. J. L. 44; contra, Pitts v. Wooten's Executors, 24 Ala. 474. Assuming that this extension is adopted, it is at least questionable whether it should be carried further so as to apply to claims in which the executor has an interest. An executor may waive the statute as to his own claims against the testator that were not barred at the time of the latter's death. Preston v. Cutter, 64 N. H. 461. As to those that were then barred, it has been said that the executor steps into the testator's place and so can revive claims held by him in his individual capacity. Baker v. Bush, 25 Ga. 594. But it is submitted that the executor steps into his testator's place solely for the purpose of protecting the estate. His duty being to use his discretion as to what barred claims are well founded and just, there is an obvious practical objection to allowing him this discretion in regard to a claim in which he is personally interested. Batson v. Murrell, 10 Humph. (Tenn.) 301; Hoch's Appeal, 21 Pa. St. 280.

GENERAL AVERAGE - NATURE, CAUSE, AND MANNER OF SACRIFICE EFFECT OF INHERENT VICE OF CARGO UPON THE RIGHT TO CONTRIBUTION. -Y & Co. shipped coal upon G & Co.'s vessel. The cargo ignited by spontaneous combustion, whereupon water was poured into the hold, damaging the unburned coal. In respect to this damage Y & Co. claimed a general average contribution from G & Co. Held, that, in the absence of negligence on their part, Y & Co. are entitled to contribution. Greenshields, Cowie & Co. v. Stephens & Sons, [1908] A. C. 431.

A cargo of garbage tankage took fire by spontaneous combustion. The whole cargo of garbage tankage was destroyed in putting out the fire. The plaintiff insurance company had to indemnify the cargo owner and sued the vessel for a general average contribution. Held, that the plaintiff is entitled to contribution. Atlantic Mutual Insurance Co. v. Schooner W. J. Quillan, 40 N. Y. L. J. 2073 (U. S. Dist. Ct., S. D. N. Y., Jan. 1909).

The English case affirms the decision of the lower court discussed in 21 HARV. L. REV. 369. The question is now raised for the first time in this country by the New York case, which, in the consequent absence of authority, expressly defers to the above ruling by the House of Lords.

GIFTS GIFTS INTER VIVOS-BANK ACCOUNT: INTENT TO MAKE PRESENT GIFT. A deposited a sum of money in a savings bank and the following entry was made in the pass book: "A in case of death payable to B." A delivered the pass book to B and subsequently died. The bank filed a bill of interpleader, and B's claim of the deposit was denied on the ground that there had been no valid gift. Held, that there is not a valid gift to B. Jones v. Crisp, 71 Atl. 515 (Md.).

X deposited money in a savings bank in her own name. She lost her pass book, but obtained from the bank an order transferring the account to Y, which she indorsed and delivered to Y, stating that she gave this fund "subject to her own use during her lifetime." Held, that there is a valid gift to Y. Candee v. Conn. Savings Bank, 71 Atl. 551 (Conn.).

It is clearly settled law that a valid gift either inter vivos or causa mortis of a deposit in a savings bank may be made by a delivery of the pass book. Camp's Appeal, 36 Conn. 88; Ridden v. Thrall, 125 N. Ý. 572. But there must be a clear intention on the part of the donor to relinquish immediately to the donee all control over the fund. Bath Savings Institution v. Fogg, 101 Me. 188. Thus, where A had a deposit put in the names of A and B, there was held to be no gift, since A would retain control during his life. Schippers v. Kempkes, 67 Atl. 74 (N. J.). The decision in the first case under consideration that there was no gift is therefore clearly correct, since, by the express terms of the deposit, B was to get no rights until A's death. And as a testamentary disposition such a gift is invalid under the statute of wills. Augusta Savings Bank v. Fogg, 82 Me. 538. But in the second case there was no attempt to make a testamentary disposition, and the reservation of a use for life, while it may presumptively, does not conclusively, negative an intent to make an absolute gift in praesenti. Bone v. Holmes, 195 Mass. 495.

GUARDIAN AND WARD- OPPOSITION OF WARD NO BAR TO ACTION BY GUARDIAN. - An infant sold personal property to the defendant. His guardian, against the infant's wishes, brought suit to recover possession of the property. Held, that the ward's opposition is no defense to the action. Hughes v. Murphy, 63 S. E. 231 (Ga., Ct. of App., Dec. 22, 1908).

The courts differ as to the guardian's right to his ward's real estate, some holding that he is entitled to the possession, others that he can only have the rents and profits. Matter of Hynes, 105 N. Y. 560; Muller v. Benner, 69 III. 108. But in most states either by statute or by common law he is entitled to the possession of his ward's personalty. Walker v. Watson, 32 Ga. 264. At common law an infant could only sue by next friend, but many statutes allow the guardian to sue without an appointment by the court as next friend. Hutton v. Williams, 35 Ala. 503. It follows that he can bring action for the possession of the ward's personal property. Boruff v. Stipp, 126 Ind. 32. A new promise by the guardian will revive a debt of his ward barred by the Statute of Limitations, when a promise by the ward will have no effect. Manson v. Felton, 30 Mass. 206. And a conveyance by the ward is no defense to an action for possession by the guardian. ́ Freeman v. Bradford, 5 Port. (Ala.) 270. Since the reason for appointing a guardian is to substitute the discretion of an adult for that of an infant, the principal case seems rightly decided.

ILLEGAL CONTRACTS CONTRACTS COLLATERALLY RELATED TO SOMETHING ILLEGAL OR IMMORAL· ACTION FOR Goods Sold IN FURTHERANCE OF AN ILLEGAL AGREEMENT. The plaintiff corporation was formed in violation of the anti-trust laws, and made an unlawful agreement with the defendant to sell it all the paper required by defendant at specified prices. Accordingly,

the plaintiff made several sales to the defendant and sued for the balance of the price, on an account stated. Held, that the plaintiff may not recover. Continental Wall Paper Co. v. Voight & Sons Co., U. S. Sup. Ct., Feb. 1, 1909. See NOTES, p. 435.

ICY.

INSURANCE-MARINE INSURANCE MEANING OF "PIRACY" IN POLSupplies for the plaintiff government, which were insured under a marine policy covering the risk of loss from piracy, were illegally taken by insurgents who, though not politically organized, were attempting to set up an independent government in Bolivian territory. Held, that this is not a loss by "piracy" within the meaning of the policy. Republic of Bolivia v. Indemnity, etc., Assurance Co. Ltd., 126 L. T. 302 (Eng., Ct. App., Jan. 1909).

Piracy has usually been considered as robbery within the jurisdiction of the admiralty. See Rex v. Dawson, 13 St. Tr. 454. And depredating on the high seas without authority from any sovereign power is piracy by the law of nations, war being sanctioned among sovereign powers only. The Ambrose Light, 25 Fed. 408. However, a capture by a regularly organized de facto government, engaged in open and actual war against its enemy, and against its enemy only, is not piracy. Mauran v. Insurance Co., 6 Wall. (U. S.) 1. But see Dole v. Merchants', etc., Insurance Co., 51 Me. 465. Likewise vessels engaged in hostilities under an unrecognized government that has been treated as a belligerent are not pirates. United States v. Palmer, 3 Wheat. (U. S.) 610. According to the law of nations, there seems to have been a loss by piracy in the principal case. The court admitted this; but held, however, that the meaning of the word "piracy" in an insurance policy must be based on the popular understanding - that is, that a pirate is one who plunders indiscriminately for his own ends. See Davison v. Seal-skins, 2 Paine (U. S.) 333. This, it is true, seems to be the natural meaning of the word in a document used by business men for business purposes. See HALL, INTERNATIONAL Law, 5 ed., 262.

INTERSTATE COMMERCE CONTROL BY STATES - GENERAL DISCUSSION OF LIMITS. A railroad refused to haul the plaintiff's cars from an adjoining railroad to a near-by town, although this service was performed for other mill owners. The plaintiff brought mandamus in a state court. Held, that the state court has jurisdiction. Mo. P. R. R. v. Larabee Flour Mills, 29 Sup. Ct. Rep. 214 (Jan. 11, 1909). See NOTES, p. 437.

INTERSTATE Commerce WHAT CONSTITUTES Interstate CommERCE AGENT SELLING FOREIGN OWNED GOODS. A city ordinance imposed a license tax upon persons soliciting orders for the sale of goods at retail. The defendant solicited orders by samples, sent the orders to his principal in another state and on approval of the orders received the goods, delivered them to purchasers and collected the price. Held, that the fact that the defendant was agent both to solicit orders and to deliver the goods and collect the price does not prevent the transaction from being interstate commerce. City of Kinsley v. Dyerly, 98 Pac. 228 (Kan.).

The negotiation of sales of goods which are in another state for the purpose of introducing them into the state in which the negotiation is made is interstate commerce." Robbins v. Shelby Co. Taxing District, 120 U. S. 489. It is the transportation of goods from one state into another which gives a transaction interstate character, and a contract which is a necessary incident of such transportation is exclusively within federal control. A tax on the privilege of selling is a tax on the goods themselves. American Fertilizing Co. v. Board of Agriculture, 43 Fed. 609. The right to sell implies a right to sell through agents, and a local tax upon agents soliciting orders for a non-resident principal is invalid. Asher v. Texas, 128 U. S. 129. The right to sell further implies a right to deliver and collect the price. Hence an agent of a non-resident for this purpose is not subject to a local tax even though the goods are shipped to him in bulk. Caldwell v. North Carolina, 187 U. S. 622. Such a restriction is no