as a bill of discovery as it was not averred that any suit was brought or intended, in support of the defense of which the discovery was material. Pease v. Pease, 49 Mass. (8 Metc.) 395. Where a party has an adequate remedy at law as to the relief sought, and there is no allegation in his bill that an action at law is pending or to be brought, the bill cannot be maintained for discovery. Haskins v. Burr, 106 Mass. 48; Vol. 16 Cent. Dig., Discovery, Secs. 20-25.

CORPORATIONS-TRUST DEEDS PASSING PROPERTY TO TRUSTEE IN BANKRUPTCY-FORECLOSURE AND INJUNCTION.-In Re Jersey Island Packing Co.. 138 Fed. Rep. 625, the facts were that the assets of said alleged bankrupt consist of about 4,000 acres of land described in the petition, together with the improvements, machinery, implements, and tools thereon situated, all of the value of $400,000; that on February 14, 1902, a mortgage on said property was executed to the Mercantile Trust Company, a corporation, to secure $100,000, represented by bonds of said corporation; that, as the petitioners are advised and believe, the issue of said bonds was and is illegal and void, for the reason that they were not used for purposes and objects of the company, and were issued neither for money paid, labor done, nor property actually received; that on December 11, 1902, said corporation executed to the Germanic Trust Company, afterwards known as the Central Trust Company, a conveyance and assignment of all the property of said corporation, and on April 27, 1905, said Central Trust Company transferred all of said property to William H. Wright, who in said transfer was alleged to be the owner and holder of a note for $30,000 issued by said Jersey Island Packing Company, and secured by said deeds of trust; that on September 19, 1903, there was filed for record in Contra Costa County, Cal., another deed of trust, executed by said corporation to William H. Wright and Myra E. Wright to secure the payment of $100,000; that in said deeds of trust it is provided that notice of a sale thereunder shall be published in a newspaper in the city and county of San Francisco, as well as a newspaper published in the county in which the property is situated, and petitioners aver that notice has been published under said provisions, and that the time of sale under said notices is May 22, 1905; that William H. Wright is the treasurer of said Jersey Island Packing Company, and that, as petitioners are informed and believe, he has attempted to conceal from said company and others interested the intended sale of said property; that unless restrained by this court, said sale will be made on May 22, 1905, to the irreparable loss and injury of all unsecured creditors, and said trustees under said deeds of trust will be the only bidders at said sale, and will bid in the property for the amount of the indebtedness mentioned therein; that, if all the property of said alleged bankrupt is disposed of

as a whole in this court, it will realize sufficient to pay all its indebtedness, secured and unsecured; and that the unsecured claims aggregate about $140,000. The court said:

"It is earnestly insisted on behalf of the petitioners that the district court had no jurisdiction to make the order enjoining the sale; that the deeds of trust are absolute conveyances of the property of the alleged bankrupt, and the right of the trustees thereunder to sell upon default is not and cannot be affected by the proceedings in bankruptcy. Upon the proposition that the trust deeds are absolute conveyances of the property of the alleged bankrupt, and the right of the trustees thereunder to sell upon default is not and cannot be affected by the proceedings in bankruptcy. Upon the proposition that the trust deeds are absolute conveyances, the petitioners rely upon Powell v. Patison, 100 Cal. 234, 34 Pac. Rep. 676, and Moore v. Calkins, 95 Cal. 435, 30 Pac. Rep. 583, 29 Am. St. Rep. 128. The first of these cases goes no further than to recognize the established distinetion between a defeasible and an absolute trust, and to say that the latter is a conveyance of property to a trustee for the purpose of selling it to pay debts, the effect of which is to pass the title unconditionally to the trustee and to vest it in him unconditionally and indefeasibly for the purposes of the trust. The second case held only that the instrument then under consideration was a trust deed; that it conveyed to the grantee, who was a creditor of the grantor, the legal title; and conferred on him the power to sell the property thus conveyed, and transmit the legal title to his grantec. The trust deeds of the alleged bankrupt's property in this case are clearly not in the nature of an absolute conveyance. They are conveyances to secure debts of the grantor not then due. 'Like the mortgage at common law, the trust deed passes the legal title to the grantee in those jurisdictions where a mortgage passes such interest, and leaves in the grantor the equity of redemption only. Likewise in those states where it is held that the legal title remains in the mortgagor the same rule is generally applied in favor of the grantor in a trust deed.' 28 Am. & Eng. Enc. of Law (2d Ed.), 753. The grantor of these trust deeds undoubtedly retained an interest in the property conveyed, which in bankruptcy would pass to its trustee for the benefit of its unsecured creditors. In re Union Trust Company, 122 Fed. Rep. 937, 59 C. C. A. 461. The filing of a petition in bankruptcy is in substance and effect an attachment and an injunction, and it places the property of the bankrupt constructively in the custody of the court of bankruptcy. Loveland on Bankruptcy, § 150; In re Weinger, Bergman & Co. (D. C.), 126 Fed. Rep. 875. Property on which there is a mortgage or other lien passes to the trustee in bankruptcy, and is therefore in the custody of the court of bankruptcy. In re Rochford, 124 Fed. Rep. 182, 59 C. C. A. 388; In re

Kellogg, 121 Fed. Rep. 333, 57 C. C. A. 547; Chauncey v. Dyke Bros., 119 Fed. Rep. 1, 55 C. C. A. 579; In re Booth (D. C.), 96 Fed. Rep. 943. And the beneficial interest of a bankrupt in property held in trust passes, also, in all cases where that interest might have been transferred to another by the bankrupt, or might have been levied upon under judicial proceedings against him. Stanford v. Lackland, 2 Dill. 6, Fed. Cas. No. 12,312; Spindle v. Shreve, 111 U. S. 542, 4 Sup. Ct. Rep. 522, 28 L. Ed. 512. The trustee in bankruptcy has the election to refuse to take possession of mortgaged property, if its value, over and above the incumbrance, is not sufficient to justify an attempt to administer it. It is true that the bankruptcy act provides that liens such as the lienholders had under the trust deeds in this case shall not be affected by bankruptcy, but that is far from saying that such lienholders may, after the commencement of proceedings in bankruptcy against the debtor, proceed to enforce their liens or contiacts in the manner prescribed in the instruments which create them; and this is true whether such lien is an ordinary mortgage, or a deed of trust with provision for a strict foreclosure by a notice and sale. The provision of the bankruptcy act that such a lien shall not be affected by the bankruptcy proceedings has reference only to the validity of the lienholder's contract. It does not have reference to his remedy to enforce his right. The remedy may be altered without impairing the obligation of his contract, 80 long as an equally efficient and adequate remedy is substituted. Every one who takes a mortgage or deed of trust intended as a mortgage, takes it subject to the contingency that proceedings in bankruptcy against his mortgagor may deprive him of the specific remedy which is provided for in his contract.

In the present case there was no jurisdiction over the property of the bankrupt in any other court. The only jurisdiction was in the court of bankruptcy. The interest of the bankrupt in the mortgaged property will pass to the trustee when he is appointed, and in the meantime it is under the protection of the bankruptcy court.

The petitioners also cite In re Browne (D. C.), 104 Fed. Rep. 762. In that case McPherson, District Judge, while declining to pass on the question whether the court had jurisdiction to interfere and prevent a fraudulent or oppressive exercise of the right of sale of personal property which had been pledged by the bankrupt more than four months prior to bankruptcy, in a case where it had been agreed that the creditors intended to deal fairly with the property pledged, and to make an honest offer to sell for the best prices that could be obtained, was of the opinion that the bankruptcy act gave the court no authority to interfere between the creditors and the exercise of their right to sell given them by the collateral notes. It may be remarked in this connection that the interest of a pledgee differs from that of a mortgagee. The pledgee has a

special property in the thing pledged, which entitles him to the possession, to protect which he may maintain detinue, replevin, or trover, and the interest of the pledgor is not subject to execution. The decision in Re Browne may be accepted as authority for the proposition that a district court will not interfere with a sale by a pledgee of the thing pledged, under the power of sale given by the terms of his contract, when there is no claim that such power is exercised in a fraudulent or oppressive manner.

The bankruptcy act provides (Act July 1, 1898, ch. 541, § 2, cl. 15, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3421]) that courts of bankruptcy shall have power to make such orders, issue such process, and enter such judgment, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of the act. Under this provision the court may, upon proper application and cause shown, restrain not only the debtor, but any other party, from making any transfer or disposition of any part of the debtor's property, or from any interference therewith. Beach v. Macon Grocery Co., 116 Fed. Rep. 143, 53 C. C. A. 463.

We are of the opinion that the district court had jurisdiction to make the restraining order. Of the propriety of that order, assuming that the court had the power to make it, there can be no question. All the property of the alleged bankrupt was about to be sold, at the instance of its treasurer, to obtain satisfaction of debts owing to him and his wife, secured by the trust deeds. These facts evidently came to the knowledge of unsecured creditors but a few days before the proposed sale. They had no time in which to bring the creditors together, or to secure bidders for the property, or otherwise to protect their interests. The sale of the property under the trust deeds would have extinguished the equity of redemption. By selling the property under the direction of the bankruptcy court, the interests of all parties may be protected, and the trustees of the trust deeds will not be injured. They will be entitled to the proceeds of the sale to the same extent that they would have been if they had themselves made the sale under the power of sale given them by the trust deeds.

NOTE. Like the mortgage at common law, the trust deed passes the legal title to the grant e in those jurisdictions where a mortgage passes such interest, and leaves in the grantor the equity of redemption. It has been judicially determined that a trust deed passes the title to the grantee in the follwing cases: Newman v. Jackson, 12 Wheat. (U.S.) 570; Stevens v. Clay, 17 Colo 489, 31 Am. St. Rep. 328; Sargent v. How, 21 III. 148; Thornhill v. Gilmer, 4 Smead. & M. (Miss) 153; Brown v. Doe, 10 Smead. & M. (Miss.) 268; Anderson v. Holman, 1 Jones L. (46 N. Car.) 169; Taylor v. King, 6 Munf. (Va.) 358, 8 Am, Dec. 746. And in the following cases the title was held to be in the grantor: Norman v. Samuels, 17 Iowa, 528; Lenox v. Reed, 12 Kan. 223; Webb v.

Haselton, 4 Neb. 308, 19 Am. Rep. 638; Hurley v. Estess, 6 Neb. 386; Kemp v. Small, 32 Neb. 318; Cullen v. Casey (Neb.), 95 N. W. Rep. 605; Hoffman v. McKall, 5 Ohio St. 124; Brown v. Drakes, 4 Hawks (11 N. Car.), 342, 64 Am. Dec. 637; McLean v. Paschal, 47 Tex. 365.

MASTER AND SERVANT-CHANGING FLAGMAN'S BOX DURING HIS ABSENCE FOR REPAIR, BEING REPLACED TOO NEAR TRACK, STRUCK BY TRAIN -FLAGMAN INJURED. In the case of Philadelphia, B. & W. R. Co. v. Devers, 61 Atl. Rep. 418, the facts were as follows: The appellee was a flagman in the employ of the appellant at the crossing of a street over its railroad in the city of Chester, in the state of Pennsylvania. His duty was to watch for passing trains, and give notice thereof to persons passing along the highway. For the better performance of his duty, the appellant provided him with a watch box, where he could find shelter when not obliged to be upon the track. He had been so employed for more than seven years. Three tracks, two of them main and one a siding, there crossed the street. The box was placed between the two main tracks. It was about eight feet high, four feet across, and weighed three or four hundred pounds. It had been in use several months. On he morning of the accident it had been moved temporarily, by the employees of the appellant, from its foundation, for the purpose of being repaired. The appellee, whose term of service was at night, was absent while the repairs were being made. He returned to his work before the repairs were fully completed, but after the box had been moved back to the place where it belonged. There was testimony tending to show that it was replaced apparently in its original position with relation to the location of the track, and no change was observable other than that the step had been removed and some alteration had been made in its structure. He testified that on his return he noticed no change in the location of the box.

The substantial question in the case is whether this watch box, under the circumstances of this case, falls within the familiar rule that requires the master to exercise all reasonable care to provide and maintain proper and safe machinery, appliances, and places for his employees, and that such duty he cannot avoid by showing that he has used reasonable diligence in the selection of his agents to perform the work. In such a case the negligence of the servant to discharge this duty would be a negligence imputable to the master, for which he would be responsible, and this is so because there rests on the master a positive duty which he cannot delegate. Russell's Case, 88 Md. 571, 42 Atl. Rep. 214; Jamar's Case, 93 Md. 412, 49 Atl. Rep. 847, 86 Am. St. Rep. 428. But the appellant contends that the watch box ought not to be considered as a structure or appliance, or "a place in which to work," but must be regarded as "a structure used as incidental to the work." The distinction thus

sought to be made in order to relieve the master of his obligation, we think is more fanciful than real. It is certainly not borne out by any of the cases cited to support it. Yates v. McCullough Iron Co., 69 Md. 370, 16 Atl. Rep. 280; Baltimore & O. R. Co. v. Stricker, 51 Md. 69, 34 Am. Rep. 291; Maryland Clay Co. v. Goodnow, 95 Md. 330, 51 Atl. Rep. 292, 53 Atl. Rep. 427; American Tobacco Co. v. Strickling, 88 Md. 500, 41 Atl. Rep. 1083. The court said it was the clear duty of the company to construct and maintain this structure in a safe condition, so that it could be safely used. The duty of maintaining, as well as of constructing, suitable and sound appliances, rests upon the master himself, and he cannot subject his employees to risks beyond those which are inci-. dent to the employment contemplated at the time of the contract of service, and the employee may presume that this duty has been discharged. Stricker Case, 51 Md. 47, 34 Am. Rep. 291; Baker Case, 84 Md. 19, 35 Atl. Rep. 10. The court also said: "But he did not assume the risk of a watch box placed, without his knowledge, so close to the track as to be liable to be struck by passing trains. A watch box so placed is a dangerous structure. As it stood at the time the appellee was injured, it was a constant menace to those whose duties required them to use it. As was said by the United States Supreme Court in Railroad v. McDade, 191 U. S. 67, 24 Sup. Ct. Rep. 24, 48 L. Ed. 96, where the structure was an overhanging spout, it was so devoid of all exigencies of expense, necessity or convenience, so free of any consideration of skill except that of the foot rule, and so entirely destitute of any element of choice or selection, that not to make such a construction safe is a conviction of negligence.' The case was properly submitted to the jury.”

EFFECT OF PAYMENT OF A PROMISSORY NOTE AT PLACE OF PAYMENT NAMED IN THE INSTRUMENT.

It is not necessary, of course, that any place of payment be designated in a promissory note, or other like obligation. At maturity, the obligation may be presented to the drawer wheresoever he may be, and if payment be refused, an action can at once be commenced to enforce payment. When notes are executed to a bank, it is customary and almost universal to name a place of payment, and the bank to which the note is made payable is usually designated as the place where payment is to be made. And when a place is thus named in the instrument, certain rights, privileges and duties accrue by which both the maker and payee are to be governed.

One effect of such a stipulation in a note is to authorize a tender of the money at the place named when due. And if the maker, u on maturity, tenders the face of the note and any accrued interest at the place of payment, this amounts to a tender in law and the rights of the parties are governed by the usual rules in cases of tender. One effect of the tender, being to stop interest and cost.1 The effect of this is to make it the duty to a certain extent of the payee to have the note at the place of payment at the maturity thereof. If he should fail to do this, and the maker should have the necessary money there to make the payment, the payee could not insist on the payment of any interest after this tender at the place named for the purpose of payment. But, in order that the maker may avail himself of this advantage, it is necessary that he keep the tender up, for this is all the offer to pay at the named place amounts to, and it is a familiar rule that a tender, in order to be effective in law, must be kept up and profert in curia properly made. This rule applies to cases of tender at the place of payment. And if the maker of the note fails to thus keep the tender up, he loses his protection against damages and cost. If he abandons the tender, he is no longer entitled to the benefits thereof. If the maker should go further and actually pay the note at the place named, regardless of whether the note were still owned by the original payee or whether it had been sent there for collection by an indorsee, a more important question would arise. payment of a note at the place named therein relieve the inaker in the event the note has been indorsed to another in the usual course of business for value without notice to the transferree of any equities which the maker might assert? In other words, is it the duty of the payee or indorsee of a note to have it ready at the place of payment when it matures as a condition precedent to the right of recovery?

1 Greely v. Whitehead, 35 Fla. 525; Bank v. Smith, 11 Wheat. 171, 175; Watkins v. Crouch, 5 Leigh (Va.), 522; Bowie v. Duval, 1 Gill & J. (MC.), 175, 182; Mulherin v. Hannum, 2 Yerg. (Tenn.), 81; Nichols v. Pool, 47 N. Car. 23, 28; Reeve v. Pack, 6 Mich. 240; Yeaton v. Berney, 62 Ill. 61; Eaton & Gilbert, Com. Paper, p. 441.

2 Caldwell v. Cassiday, 8 Cowen, 271; Carley v. Vance, 17 Mass. 388, 392; Mulherrin v. Hannum, 2 Yerg. (Tenn.), 81; Mahan v. Waters, 60 Mo. 167; Faden v. Sharp, 4 Johns. 183; Lyon v. Williamson, 27 Me. 149; Greely v. Whitehead, 35 Fla. 523, 530.

3

On this point the language of Mr. Chief Justice Ewing, speaking for the court in Weed v. Ven Houten, is instructive. After a careful review of the authorities, the learned jurist, speaking for the court, said: "I have no hesitation in expressing my entire concurrence in the American decisions so far as is necessary for the present occasion. that on a promissory note made payable at a particular place, in an action by the payee against the drawer, a special averment of presentment at the place is not necessary to the formality or validity of the declaration, nor is proof of it requisite on the trial on a plea of non assumpsit to sustain the issue on the part of the plaintiff. This rule, I am satisfied, is most conformable to sound reason, most conducive to public convenience, best supported hy the general principles and doctrines of the law, most assimilated to the decisions which bear analogy more or less directly to the subject This language of the learned court was ex-pressly approved by the Supreme Court of the United States in the leading case of Wallace v. McConnell, and the doctrine here announced has become the ruling of the ccurts of last resort in nearly all the states where the question has been passed upon. It must be considered as fairly settled therefore, that it is not absolutely necessary for the payee or indorsee to demand payment at the place named: Of course in questions of protest, demand can always be made at the place of payment and a failure of the maker to have the necessary money at the place when the in

4

39 N. J. Law (4 Halst.), 189.

4 13 Pet. 136, 150.

5 Sumner v. Ford, 3 Ark. 359, 402; Nichols v. Bowes, 2 Camp. N. P. 498; Brigham v. Smith, 15 N. H. 274; Carley v. Vance, 17 Mass. 389; Greely v. Whitehead, 35 Fla. 523; Dougherty v. Bank, 13 Ga. 287, 293; Walcott v. Van Santvoord, 17 Johns. 248; Caldwell v. Cassidy, 8 Cowen, 271; Eaton & H. Ry. Co. v. Hunt, 20 Ind. 457; Bank v. Smith, 11 Wheat. 171, 175; Ripka v. Pope, 5 La. Ann. 61, 63; Fenton v. Goudry, 13 East, 459; White v. Kehlor, 85 Mo. App. 557; Ruggles v. Patten, 8 Mass. 480; Bank v. Ingerson, 105 Iowa, 349; Bowie v. Duvall, 1 Gill & J. (Md.), 175; McNairy v. Bell, 1 Yerg. (Tenn.), 502; Lyon v. Sandins, 1 Camp. N. P. 423; Dockery v. Dunn, 37 Me. 442; Grissom v. Bank, 87 Tenn. 350, 355; Armistead v. Armistead, 10 Leigh (Va.), 512; Nichols v. Pool, 47 N. Car. 23, 28; Conn. v. Gano, Hammond (Ohio), 483; Eastman v. Fifield, 3 N. H. 333; McKenney v. Whipple, 21 Me. 98; Gammon v. Everett, 25 Me. 66: Hardin v. Sweeney, 14 Wash. 129; Reeve v. Pack, 6 Mich. 240; Montgomery V. Tutt, 11 Cal. 367; Yeaton v. Berney, 62 111. 61; Clark v. Moses, 50 Ala. 326; Klindt v. Higgings, 95 Iowa, 529; Eaton & Gilbert, Com. Paper, p. 441.

strument falls due to take it up, would subject it to protest without further search for the maker to demand the payment personally. In fact, this is one of the useful purposes in embodying a place of payment in a promissory note. A note or similar obligation usually provides a place of payment convenient to the payee, and he usually selects the place subject, of course, to the right of the maker to refuse to adopt the suggestion just as he might refuse to agree to any other provision offered. But another consideration should not be lost sight of. This is the question of agency with reference to the collection of the note. If, by the stipulation making a named place the point of payment the firm, person or corporation in control of such place should thereby become the agent of the payee or indorsee to effect the collection at maturity, a payment at such place would be effective to release the maker from any further liability whether the note was at the place of payment or not, and whether or not in the hands, possession or control of the person, firm or corporation where made payable. But it is clear, both from the standpoint of reason and the decisions as well, that an agency for the purpose of making the collection or with authority to receive payment, is not created by the simple act of naming a place of payment in the instrument. The agreement to pay at a named place cannot be consistently held to amount to an agreement to pay to the person in charge of the named place of payment when the instrument has been made payable to order and indorsed to an innocent party in the usual course of business in good faith, or when the payee for any reason does not have it at place of payment for collection. If such were the law, it would materially affect the security of dealing in commercial paper. The bank might fail or go out of business, or the person or firm at whose place payment is to

6 Bank v. Cannon, 6 Minn. 95; Adams v. Improvement Co., 44 N. J. Law 638; Grissom v. Bank, 87 Tenn. 350; Engbert v. White, 92 Iowa, 97; Cummings v. Heard, 49 Mo. App. 139, 147; Clark v. Moses, 50 Ala. 326; Caldwell v. Evans, 5 Bush (Ky.)), 380, 382; Glatt v. Fortman, 120 Ind. 384; Wallace v. McConnell 13 Pet. 136; Ward v. Smith, 7 Wall. 447; Cheney v. Libby, 134 U. S. 68, 83; Hills v. Place, 48 N. Y. 520; Wood v. Savings Co., 41 Ill. 261, 269; Gas Co. v. Pinkerton, 95 Pa. St. 62; Greely v. Whitehead, 35 Fla. 523; Bank v. Ingerson, 105 Iowa 349; Jenkins v. Shinn, 55 Ark. 457; Pease v. Warren, 29 Mich. 10, 12; Zane, Banks and Banking, Sec. 326; Daniel Neg. Instruments (5th Ed.), Sec. 326; Tiedeman, Com. Paper, Sec. 310.

And

be made may move elsewhere, or, for any reason, discontinue business before the maturity of the instrument. But where a maker of a note, either negligently or otherwise persists in paying the instrument at the place named, he takes the risk of the person to whom he pays it being either the owner of the ncte, or duly authorized by the owner or holder to make the collection. In other words, where he pays to a person other than the payee, or where he pays to the original payee after the note has been transferred in good faith in the usual course of business before maturity, he thereby makes the person to whom he thus makes payment his agent to take up the note from the legal holder or owner thereof. if such person neglects or fails to take up the note and thereby satisfy the holder, his failure so to do is the failure of his principal and, therefore, in law, the failure of himself." More than this, though a creditor makes a note payable to order at a certain place, and at maturity the debtor has an amount of money on deposit with the party at whose place of business the note is made payable, such custodian of the money cannot appropriate a sufficiency thereof to make payment of the note without instructions from the maker to this effect. Merely having money on deposit with a bank or other place at which a note is made payable will not justify the custodian of the fund in appropriating it to the payment of any debt the maker may owe, though the instrument or bill evidencing the indebtedness is made payable at the place where money generally belonging to the debtor is on deposit. 8 This is reasonable upon several grounds. Where money is on deposit it is subject to check. Ordinarily, money deposited cannot be withdrawn except by a check or some kind of written order. The debtor is not compelled to pay the obligation out of the fund on deposit. He may prefer to let that remain and arrange about the payment otherwise. But if the bank with which the money is on deposit would be justified in meddling with the financial affairs of its depositor to the extent of assuming to take money coming to

7 Bank v. Cannon, 46 Minn. 95; Carley v. Vance, 17 Mass. 380; Cheney v. Libby, 134 U. S. 68, Pease v. Warren, 27 Mich. 10, 12; Bank v. Ingerson, 105 Iowa, 351; Daniel, Negotiable Inst. (5th Ed.), Sec. 326, p. 328.

8 Grissom v. Commercial Natl. Bank, 87 Tenn. 350, 356; Wood v. Savings Co., 41 Ill. 267.