and incidentally the liability of all unincorporated associations has excited unusual interest in both England and the United States. Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, [1901] A. C. 426. The plaintiff company's property having been illegally picketed by agents of the defendant society-a registered trade union

an interim injunction against the agents personally and against the society in its registered name was granted by Farwell, J. An application of the society to have its name stricken out was dismissed. The only point argued here or in the higher courts was the amenability of the union to an injunction in its registered name. This decision, reversed in the Court of Appeal, was restored by the House of Lords. Mr. Justice Farwell regarded the union as a legal entity- an idea expressly repudiated by the Court of Appeal. In the House of Lords the Chancellor and Lords Brampton and Shand distinctly inclined to that view however. Although the opinions of Lords Macnaghten and Lindley were ambiguous on this point, the latter thought the individual members would not be liable at law for the acts of the society. But the meaning and scope of the injunction were not accurately defined by any of the judges who considered the case.

That men by forming an association can free both themselves and the association from liability for the acts of their agents cannot be the law, in the absence of legislative enactments plainly to that end. For its clear assertion of this principle the present case is admirable. But in the important practical question of determining who is responsible for the acts of an organized association, under given circumstances, the opinions help little. A main factor in answering this question is the legal character of the association. If the body is one recognized by the law as a distinct entity, that entity alone is primarily liable, and the individual members are liable only secondarily if at all. An injunction against the association like a judgment would usually affect directly only the association, and not the members. So if the members as individuals and not as agents of the association should do acts prohibited by the injunction, they would not be liable for violation of the injunction, although under some circumstances possibly liable for contempt of court. See Lord Wellesley v. Earl of Mornington, 11 Beav. 180, 181; Avory v. Andrews, 30 W. Rep. 564; Mayor, etc., v. New York, etc., Co., 64 N. Y. 622. On the other hand, if the body is legally not an entity, but a mere collection of individuals, these individuals are primarily liable for their agents' acts. If it be impracticable to join all these individuals as defendants, courts of equity find no difficulty in allowing some to represent all. See Meux v. Maltby, 2 Swanst. 277.

The orthodox doctrine of the common law, which recognizes only individuals and corporations as entities, undoubtedly lags far behind the ordinary conceptions of laymen. The principal case is indicative, perhaps, of a tendency to abandon this doctrine whenever justice or expediency requires it. Before the Trade Union Acts of 1871 and 1876 trade unions were as entities hardly distinguishable from other unincorporated associations. So far, however, as their purposes were in restraint of trade — and this was a main object of most of the societies — the unions were illegal. The Act of 1871 provided that the purposes of trade unions should not be deemed unlawful merely because in restraint of trade. The Acts further provide certain formal requirements in regard to the registration of trade unions, and prescribe the mode in which the

property of the unions shall be held by trustees. It is not expressly stated that registered unions may be sued by their registered names. The Acts in no way create trade unions, they simply regulate the trade unions hitherto existing. From this case it would appear that statutory regulation of unincorporated associations less than that usually believed requisite to create corporations may suffice to induce the English courts to recognize them as legal entities. Public policy would not prevent the courts from going still further in making the law in regard to associations accord with the actual facts.

SUBSCRIPTIONS TO CHARITABLE ORGANIZATIONS. Theory and decision are unfortunately in irreconcilable conflict in the majority of instances where charitable subscriptions have been enforced. In a late case a subscription for the purchase of a church site is held binding, on the ground that the consideration for the defendant's promise is to be found in the meritorious object of the subscription and in the mutual promises of the subscribers. First Church v. Pungs, 86 N. W. Rep. 235 (Mich.). Although many authorities accord with this decision it is impossible to agree with it unless it can be rested on other grounds than those stated. To support the subscriber's promise a consideration must move from the other contracting party, in conventional phrase, the promisee must incur a detriment at the request of the promisor. HARVARD LAW REVIEW, 515. Ordinarily the subscription paper contains, in express terms at least, neither a request by the subscriber nor a promise by the beneficiary. The subscription usually is a mere gratuity. In re Hudson, 54 L. J. Ch. 811.

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The American courts at first found this difficulty insuperable, but their desire to enforce promises so obviously binding in foro conscientiæ led to the gradual adoption of various specious suggestions of consideration. See note, 16 Am. Law Reg. n. s. 548. The modern law on the subject is in great confusion and incumbered with many inaccurate statements. It is often said, as in the principal case, that the mutual promises of the subscribers form the consideration. Petty v. Trustees of Church, 95 Ind. 278. Even if it be in fact true that the subscribers give their promises in exchange for each other, the beneficiary of the subscription, who is usually the plaintiff, is not privy to the contract. Cottage Street Church v. Kendall, 121 Mass. 528. In states where a beneficiary is allowed to sue, however, a satisfactory result may be worked out on this doctrine if the facts admit of its application. Cf. Irwin v. Lombard University, 56 Oh. St. 920. But usually such a construction of the facts is false. It is also a fictitious consideration that is found in an implied counter-promise by the beneficiary, arising when the subscription is accepted or acted upon. Maine Institute v. Haskell, 73 Me. 140. A third view enforces the promise on the theory that the subscriber is equitably estopped from denying the consideration after the beneficiary has acted on the faith of it. Beatty v. Western College, 177 Ill. 280. This avoids the contractual difficulty only by substituting an infringement of the doctrine of estoppel. See 12 HARVARD LAW REVIEW, 506. The most generally accepted theory considers the subscription an offer merely, which is made binding when expense or liability has been in curred in reliance upon it. Trustees of Church v. Garvey, 53 Ill. 401.

This necessitates an implied request by the promisor that such liability be incurred an implication of fact, not usually justifiable. Presbyterian Church v. Cooper, 112 N. Y. 517. If a request can be inferred from the subscriber's promise, it would seem that entire performance and not merely a beginning of the contemplated undertaking would be requisite to complete the unilateral contract. Where there has been an express request however, there is of course no difficulty in enforcing the subscription after performance by the beneficiary. On this ground the principal case might possibly have been rested. Cf. Barnes v. Perine, 12 N. Y. 18.

Although on strict theory a charitable subscription can seldom be construed as a binding contract, it is eminently desirable in many cases that such subscriptions, although gratuities, should be enforced, as numerous worthy institutions are absolutely dependent upon them. Such enforcement, however, if it is to rest upon consistent and rational grounds must be obtained through suitable enactment by state legislatures, and not through judicial legislation, which violates the fundamental principles of contracts.

LEGAL PROTECTION TO UNBORN CHILDREN. By Lord Campbell's Act, where death has resulted from a wrong which would have entitled the injured party to sue had he lived, a cause of action is given to his administrator or next of kin. Under a similar statute the death of a child caused by its premature birth for which the defendant was responsible was held to give no cause of action, as the child could not have sued if it had survived. Gorman v. Budlong, 49 Atl. Rep. 704 (R. I.). It is true that a child harmed before birth has been invariably denied redress by the courts, on the ground that rights belong only to persons and that an unborn child is not a person. Walker v. Great Northern Ry. Co., L. R. (Ir.) 28 Q. B. & Ex. Div. 69; Allaire v. St. Luke's Hospital, 184 Ill. 359. The plaintiffs seem never to dispute this reasoning, but they rely on that rule governing the distribution of property, that a child is to be considered born if it is for its benefit to be so considered. The decisions however must be taken to settle beyond pertinent discussion that to apply this rule as suggested is either to make the defendant a tort-feasor by a fiction, or substantially to change the convenient and fundamental rule that fixes birth as the precise point at which existence as a person begins. See 12 HARVARD LAW REVIEW 209. If then a child permanently crippled a moment before its birth by a careless accoucheur or even by an intentional wrong-doer is to have a remedy, it must be on some other ground.

One conceivable theory involves no sacrifice of legal principle. At the moment of birth the rule that an unborn child has no rights ceases to affect the case. If the child at birth acquires as a legal person a specific right to begin life with a sound body, violation of that right is a tort. To allow an action on the case would not be to declare that an unborn child is a person or has rights, but to ascribe to every born child a right of bodily integrity. The right so defined has never been judicially recognized. It is peculiar in being broken as soon as it comes into existence, and necessarily some considerable time after the defendant's original fault was committed. Its peculiarities however are common to the right to means of support conceived by courts which give a

posthumous child damages for the wrongful killing of its father. See The George and Richard, L. R. 3 A. & E. 466; cf. Quinlen v. Welch, 69 Hun 584.

In view of the serious abuses which might result, the expediency of recognizing a legal right of the sort described is doubtful. On the difficult question of cause the mother may incline to romancing and the jury to superstition. Gorman v. Budlong, supra, shows an additional danger likely to be frequent. The child has died soon after birth. If it has suffered a tort an action by the next of kin, though perhaps not contemplated by the framers of Lord Campbell's Act, is strictly within its provisions; and substantial verdicts often undeserved may result. In many such cases recovery could be refused only on the ground that these abuses render it inexpedient to recognize at all the right of bodily integrity. Whether this ground should be taken, it is submitted, is the real question.

RECENT CASES.

ADMIRALTY - MASTER OF A Dredge - LIEN FOR WAGES. A libel for wages was filed against a dredge. The libellant was licensed as master, had full charge of the dredge, and performed the usual duties of a master except that he received no money for the owners. He also acted as engineer, fireman, and general deck hand. Held, that he was not a master within the rule that a master has no lien upon his vessel for wages. The John McDermott, 109 Fed. Rep. 90 (Dist. Ct., Conn.). In England originally contracts of mariners for wages were not regarded as maritime contracts. See De Lovio v. Boit, 2 Gall. 398, 453. Therefore neither masters nor men could proceed in admiralty for their wages. When, later, seamen were allowed a lien enforceable in admiralty, the privilege was still denied to masters on the ground that they contracted with the ship-owner personally. Clay v. Snelgrove, Carth. 518. In the United States, likewise, a master has no lien. Steamboat Orleans v. Phoebus, 11 Pet. 175. His contract for wages, however, is regarded as maritime and within the admiralty jurisdiction. Willard v. Dorr, 3 Mason 91. Further, it has been held in this country that the fact of contracting directly with the owner does not prevent the acquisition of a lien. The Carlotta, 30 Fed. Rep. 378. Thus the principal reasons given in the English cases for denying the master a lien and for distinguishing between masters and seamen, have been swept away, while the distinction is retained. The courts have therefore shown a not unnatural tendency to limit the class of masters as narrowly as possible, and while the principal case lays down no satisfactory test, its result is hardly to be regretted. In England the distinction is now abolished by statute.

BANKRUPTCY PREFERENCES SURRENDER. A creditor knowingly received a preference voidable under the Bankruptcy Act of 1898, § 60 b, and refused to give it up till compelled to do so under a judgment obtained by the trustee. Held, that he could not thereafter prove his claim against the bankrupt's estate. In re Owings, 109 Fed. Rep. 623 (Dist. Ct., W. D. Mo.).

case.

The Bankruptcy Act of 1898 provides (§ 57 g) that "the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences." There is yet little authority as to what constitutes a surrender under this provision, but the tendency seems to be toward the rule of the principal In re Beiber, 2 N. B. N. Rep. 943; see In re Keller, 3 N. B. N. Rep. 845; contra, In re Baker, 2 N. B. N. Rep. 195. It was well established under the analogous provision in the Bankrupty Act of 1867, § 23, that surrender meant a voluntary act of the creditor and did not include payment under judgment. In re Richter's Estate, 4 N. B. R., 2nd ed., 221; In re Leland, 9 N. B. R. 209. That interpretation of the word seems accurate, for when the transfer of the preference has been invalidated by the

court, the creditor has in legal contemplation nothing left to surrender. The result is equitable, for when a creditor has elected to resist the trustee, he should not stand on an equal footing with those over whom he has attempted to retain an illegal advantage.

BILLS AND NOTES — ALTERED CHECKS-FAILURE OF DEPOSITOR TO EXAMINE VOUCHERS. The plaintiff's clerk altered checks drawn by the plaintiff on the defendant bank, and appropriated the proceeds above the original amount of the checks. It was his duty to examine the returned vouchers. The bank charged the plaintiff with the full amount of the checks and the fraud was undiscovered for about two years. The plaintiff sues for the difference between the amount of the checks as signed by him and as altered. Held, that he can recover. Critten v. Chemical Nat. Bank, 60 N. Y. App. Div. 241.

It seems to be generally considered in America that a depositor who fails to examine his vouchers within a reasonable time after their return, is precluded from disputing the right of the bank to charge him with the amount of altered checks. First Nat. Bank v. Allen, 100 Ala. 476; see also note, 27 L. R. A. 426. The principle seems to be estoppel by conduct. Some cases deny the estoppel when the examination of the vouchers has been intrusted by the depositor to the man who altered the check. Hardy v. Chesapeake Bank, 51 Md. 562; Frank v. Chemical Nat. Bank, 84 N. Y. 209. The better rule, however, makes no exception of such cases. Leather, etc., Bank v. Morgan, 117 U. S. 96; Dana v. Nat. Bank of the Republic, 132 Mass. 156. It rests upon the ground, not that the principal is affected with knowledge gained by the agent in perpetrating the fraud, but that the bank, by reason of its business relationship with the depositor, is entitled to rely upon the assumption that he has made the examination customary among prudent business men. Whether he does so personally or by agent does not concern the bank, and the negligence or fraud of the agent cannot excuse the principal. Cases of forged indorsement, sometimes cited as opposed to these principles, are not in point, since an examination of vouchers would not reveal the forgery. See Shipman v. Bank of the State of New York, 126 N. Y. 318. The result in the principal case, therefore, seems unsound.

CARRIERS AGENCY - DELIVERY TO AN IMPOSTOR. X, who lived in a town to which an express company did not run, instructed the company to deliver to the conductor of a railway train which ran to his town, all packages addressed to him. The railroad company was paid for the service. An impostor ordered goods in the name of X, and they were shipped in the usual way. The agent of the railroad offered the goods to X, who after examination refused to receive them. Later the impostor called for the package, claiming the same name as X and identifying himself by showing the express receipt. The agent of the railroad delivered the goods. Suit was brought by the consignor against X and the railroad company. Held, that both are liable for the value of the goods. Bruhl v. Coleman, 39 S. E. Rep. 481 (Ga.).

The decision holding X liable for the delivery to the impostor, is based on the ground that the railroad company, by virtue of its arrangement with X, received this package and dealt with it as his agent. It is submitted that this is error. The railroad company was not in his employ in the sense that it was bound by his orders. It was paid a fixed charge for its services, and was clearly in the position of a second carrier. Therefore when the supposed consignee refused the goods, his responsibility ceased. The question remains whether the carrier was properly held liable for misdelivery. The weight of authority both in this country and in England holds that after reasonable effort to find the consignee or after tender and refusal the carrier is bound only to use reasonable care and is not an insurer against misdelivery. The Drew, 15 Fed. Rep. 826; Heugh v. London, etc., Ry. Co., L. R. 5 Ex. 51; contra, Pacific Express Co. v. Shearer, 160 Ill. 215; see also note, 37 L. R. A. 177. The prevailing view seems the sound one, and is apparently opposed to the decision in the principal case. It is therefore unnecessary to consider the difficult question of title in the goods. See 14 HARV. LAW REV. 60.

RIAGE.

CONFLICT OF LAWS RECOGNITION OF ACQUIRED RIGHTS - FOREIGN MARA Russian Jew married his niece in Russia, where such marriage was lawful. Later he came to the United States and was naturalized. By the law of Pennsylvania such a marriage, if contracted there, would be void. Held, that the marriage will not be recognized in Pennsylvania, since a continuance of the relation would expose the parties to indictment. United States ex rel. Devine v. Rodgers, 109 Fed. Rep. 886 (Dist. Ct., E. D. Pa.).