Page:Harvard Law Review Volume 12.djvu/524

504 HARVARD LAW REVIEW. The ground of the decision in this case is distinctly opposed to the well settled prin- ciple in the law of bills and notes that the rights of a bona fide holder for value cannot be affected by equities existing between the original obligor and obdgee. Cf. Arpin v. Owens, 140 Mass. 145; Gottz v. Bank of Kansas City, iig U. S. 551. A recovery in this suit on any ground is objectionable, in that it leaves the payee still exposed to the drawer's claim for an account of the bill deposited for collection. A suit in equity would work a more satisfactory adjustment of the various rights affected. The legal claim of the above defendants against their collecting agents for the proceeds of the bill was exercisable by them only for the benefit of the drawer. The drawer, however, was guilty of a fraud upon the plaintiff and so held for his benefit, as a constructive trustee, the product of his wrong, namely, an equitable claim against the above defendants. The plaintiff was thus entitled as a cestui qtte trust to reap the benefit of these various claims, by joining the drawer, the above defendants and their collecting agent, as par- ties defendant to a suit, in which the final decree would be a binding adjustment of the rights of all the parties involved. Carriers — Liability for Assault by 'Euvi.OYt. — Held, that a carrier of pas- sengers is liable for an assault upon a passenger by one of its employes, though the employe was not acting within the scope of his employment. Haver v. Central R. R. Co., 41 Atl. Rep. 916 (C. A., N. J.). The decision has the support of the great weight of American authority. Elliott, Railroads, 2578. The English courts apply to common carriers the rule of agency that a master is liable for the acts of his servant only when acting within the scope of his employment. Waiker v. South-Eastern Ry. Co., L. R. 5 C P. 640. But reasons of policy seem to require that carriers be held to a greater liability for the acls of their servants than masters in general. The law imposes upon the carrier the duty of pro- tecting the passenger, as far as possible, from injury, and there is a breach of that duty whether the passenger is injured by an employe or by a stranger. The complaint of the pass3nger in this class of cases is based upon the failure of the employe to protect him, and it may be said with accuracy that the carrier is liable for the inaction, rather than for the action of his servant. Carriers — Stamp Act — Regulation of Charges. — By Act of Congress ex- press companies are required at every shipment of goods to issue a bill of lading with a one cent revenue stamp attached. Held, that a uniform increase of one cent in all express rates, regardless of the bulk of goods or the distance to be carried, is an un- reasonable regulation of charges, being an attempt to shift upon the shipper a burden imposed by law upon the carrier. Attorney-General v. American Rxpress Co., 77 N. W. Rep. 317 (Mich.). The Stamp Act contains no provision which expressly or impliedly prohibits an express company, which has paid the tax as specified, from reimbursing itself by an additional charge to the shipper. The carrier has a right to receive for its services a reasonable compensation, the amount of which may be determined by long usage. Hutchinson, Carriers, 2d ed., § 447. If, then, the rates in force before the passage of the Stamp Act were not unreasonable, it is hard to see how they can be adjudged un- reasonable after theAct is in force, I^y reason of an increase in amount which is only commensurate with the additional expense inflicted by Congress on the conduct of the carrier's business. The doctrine of the principal case, which seems really to involve a forced construction of the Stamp Act, would have worked a deplorable result, had the amount of the tax been large enough to make a material diminution in the carrier's profits. See, contra to principal case, Crawford y. Hubbell, 89 Fed. Rep. 961 (Cir. Ct. N. Y.). Chattel Mortgages — Uncertainty in Description. — An owner mortgaged fifty cows, part of a larger herd, without designating the particular animals. Held, that the mortgage conferred on the mortgagee the right to select the number from the herd, and was a writing, "intended to operate as a lien." within Rev. St. [1895], ^^• 3328. Aniory v. Popper, 48 S. W. Rep. 572 (Tex., Sup. Ct.). That a mortgage of a stated number of chattels out of a larger sum total, without special identification or description, is void as to third parties, may be regarded as settled law. Parker v. Chase, 62 Vt. 206; Jones, Ch. Mort., 4th ed., § 56. As to the exact nature of the relation created between the parties to such an instrument there seems to have been little discussion. It is clear that the mortgagee acquires no title to nor lien on particular chattels. The principal case regards him as having a power to select the property, on the ground that the instrument is to be construed most strictly against the mortgagor, and the result thus reached is as satisfactory as any. The same view seems to have been taken in Call v. Gray, 37 N. H. 428, and in Gttrley v. Davis, 39 Ark. 394. It is, however, a wide stretch of the term lien to make it include such a power as this, and on that point the principal case can hardly be supported.