Page:Harvard Law Review Volume 5.djvu/424

4 o8 HA R VARD LA W RE VIE W. who holds as security for his debt an obligation of a third person for a sum exceeding the amount of the debt are greatly curtailed. It is held, and it certainly seems just, that in the bankruptcy of such third person, proof may be made against his estate for the full amount of his obliga^ tion, though the dividends will be limited to the amount of the primary debt. This decision must go upon the theory that a creditor may prove for his full legal debt. And the rule based upon this theory, and recognizing the true nature of the defence of payment, is not only con- sistent and sound upon legal principles, but will also be found in application to produce the most satisfactory results. 2. Where A is solvent and B insolvent, and A pays the whole debt, what are the rights of A as to proof in bankruptcy against B's estate? The settled rule is that A can only prove for half the debt. This may rest either on the ground that B really owes A only half of the amount paid, or on the theory suggested above that a creditor can only prove for what he is equitably entitled to receive. It is open to the same criticism as the rule in the case where A and B are both insolvent. If B, for example, can pay fifty per cent., the creditor by going first upon B's estate for the full amount will receive half the amount due, and can recover the other half from A. If he goes first upon A he will recover the whole from him, and B's estate will only be compelled to pay A one-quarter of the amount of the debt. If the view be adopted that the creditor can prove for the whole legal debt, a more satisfactory result will be reached. After A has paid, B is still liable at law to C for the full amount. As we have seen, on principle C should be allowed to prove for the full amount against B's estate, and receive dividends up to half the amount of the debt for the benefit of A. His legal right against B he really holds solely for A's benefit. And it would seem that A should be subrogated to this right, and a'lowed to prove directly against B's estate. There is a line of cases which seem to sup- port this theory. Where it is the law that in bankruptcy specialty debts shall be paid first, if A and B are jointly liable on a bond to C, and A pays the whole, his claim in bankruptcy against B is treated as a spe- cialty claim. This can only rest on the theory that A proves on the legal right against B vested in C, but held by C for A's benefit. It would seem that consistency would require that in such a case A's proof should be for full amount. But the cases hold otherwise. RECENT CASES. [These cases are selected from the current English and American decisions not yet regularly reported, for the purpose of giving the latest and most progressive work of the court. No pains are spared in selecting all the cases, comparat'vely few in number, which disclose the general prog- ress and tendencies of the law. When such cases are particularly suggestive, comments and refer- ences are added, if practicable.] Agency — Master and Servant — Concealed Risks of Employment — Volenti non fit Injukia. — Plaintiff, employed in defendant's factory, was injured by falling upon steps which, as plaintiff was aware, had been rendered icy by the freezing of spray from steam-pipes. Held, that it was error to with- draw the case from the jury upon the ground that the risk was one which, by en- tering the employment, she had assumed. Fitzgerald v. Connecticut River rapcr Co., 29 N. E. Rep. 464 (Mass.). The court reasoned that an employee did not, by entering the service, take the risk (f non-apparent dangers; that it was not established in this case that when plaintiff entered the employ of defendant, she had reason to foresee that the steps