notwithstanding the identical

property had been seized by the trustee in bankrutcy by virtue of its release from the lien of the attachment."

The lien hereby declared to be released is not like a sub-contractor's lien which is given on property improved, which is not released because of the contractor's bankruptcy, a situation considered by us in 69 Cent. L. J. 100. The sub-contractor's lien is a lien in rem and a special way is provided for its enforcement, and it is a lien not on the bankrupt's property, but on the property of another than the bankrupt. It is also a specific lien for a particular benefit.

An attachment lien is general in its nature rendered specific by levy, and while it and the sub-contractor's lien must be preserved, yet the latter is not by seizure like the former. Seizure is by fact of the right of attachment being good and remaining good by force of continuing law. When the continuing law is displaced, it should be as if it had never been begun.

We doubt, however, whether the fact, that the property in the delivery bond and that seized by the trustee might be identical would be any reason for not holding the surety. If the bankruptcy act intended there should be no disturbance in the situation, the fact that the bond opened the way for disturbance would make the surety liable at all events. the law meant was that the debtor could transfer his property for a present consideration up to the time of petition filed for adjudication and creditors should have no rights as to attachments filed within the prescribed period.

FOR

What

BANKS AND BANKING-RIGHT OF BANK TO INTERPOSE SET-OFF DEPOSITOR'S BENEFIT.-The New York Court of Appeals considers the question of the value and efficiency of a certified check and incidentally it was held that a bank may not escape its liability upon certification of a check by proving a set-off in favor of a depositor. Carnegie Trust Co. v. First Natl. Bank of N. Y., 107 N. E. 693.

It was only necessary to hold this much in the case of a bank issuing a certified check, at the request of payee, instead of paying cash on presentation of the check. The court argues all through that to certify a check instead of paying it, the drawer of the check is discharged as by express provision of negotiable instruments law. But we see no reason for holding that a bank may upon presentation of a check do anything but pay it or re

fuse to pay for it, and therefore, generally speaking, it could not urge a set-off or a counterclaim in favor of any drawer. Whom would the judgment bind?

Speaking of a case where a bank pays a sum of money by its own check on another bank, the court says: "If the bank that made the payment has a cause of action for money paid under a mistake, it must invoke that remedy directly." As seen by case referred to in editorial in this issue, courts generally rule against any right of a bank to plead mistake in a payment, this ruling being regarded as an exception to the general rule. But even were this otherwise, it is very plain it cannot involve any drawee bank in any question between it and the payee without itself attempting to restrain drawee bank by a direct proceeding. It would have small chance to effect any result where by a course of business dealing the question has passed beyond its control by acceptance and payment in cash or by certification.

The court well says: "If the holder of a check, after procuring it to be certified by a bank, may be required to litigate the question whether the maker of the check had a right of counterclaim or set-off, the transaction has not been safely closed. That has not heretofore been supposed to be true."

ASSAULT AND BATTERY-WILLING ENTRANCE INTO FIGHT AS DEFENSE IN ACTION FOR DAMAGES.-In Lewis v. Fountain, 84 S. E. 278, decided by Supreme Court of North Carolina, a refused request by defendant for an instruction read as follows: "If you find from the evidence that plaintiff and defendant were willingly engaged, in a mutual assault upon each other with pistols, brought on by the plaintiff going to defendant's house and engaging in an altercation, and the plaintiff was injured while they were willingly assaulting each other, then plaintiff is not entitled to recover damages resulting from his own wrong."

The court said: "This was properly refused. Bell v. Hansley, 48 N. C. 131; White v. Barnes, 112 N. C. 327, 16 S. E. 922. To have given this instruction would legalize duelling or other fighting by consent or affrays."

In the latter case the following instruction was sustained: "If the jury believe that Barnes struck White with a stick described in evidence and broke his nose, the plaintiff is entitled to recover, even though they believe that White entered the fight willingly."

It seems to us a singular kind of reasoning, which would sustain a civil, private right mere

ly because it is supposed that to deny it would be to make a public wrong lawful. There is no connection between the two aspects of such a matter. Rather do we agree with Kentucky Court of Appeals in its ruling that an agreement to fight being unlawful the law will refuse damages to either party. Lykins v. Hammick, 144 Ky. 80, 137 S. W. 852.

But in what a singular position does the North Carolina ruling place courts? It sets aside the rule "ex turpi causa, non oritur actio," the rule of contributory negligence barring recovery, and puts upon courts the duty of unravelling a matter where both sides are in the wrong.

For example, if one party to an affray willingly entered upon-no matter which partysues, the other may counterclaim and the verdict be merely arrived at, not according to any view of right, but merely by the extent of the damage inflicted. What does the law care about a question of that kind?

It may be that statute might make the slayer of another in a duel liable to the latter's family. Such statute would be sustainable under police power as discouraging duelling, but hardly, we think, on any other principle. There is also another principle which seems to apply and that is volenti non fit injuria. That may apply as well where one puts himself where he probably may be hurt as where he consents to a particular injury.

MAILING A LETTER AS DETERMINATIVE OF PLACE OF DELIVERY OF A CONTRACT.

A well known author has said, and what he says is supported by universal authority, that "Notes, deeds and other

contracts of that character do not become completed and binding contracts merely by the fact of the promisor's signing them. They must also be delivered. Hence if the signing occurs in one state, while the delivery takes place in another, the latter state, not the former, is the locus celebrationis." But when he deduces the conclusion that the "locus celebrationis" is always definitely fixed as at the place where a note, bond and "other

(1) Minor on Confl. Laws, § 157.

contracts of that character," including the written acceptances of a proposal, are signed and mailed, or, if reply is by telegram, where the reply message is delivered to the telegraphic company, I purpose to take issue with such deduction." Two cases at the opposite extremes on this question are found in Hlinois and New York. The former of these cases shows that a wife, whose domicile was in Illinois, was temporarily in Florida. At the solicitation of her husband she executed a note and deed of trust valid under Illinois law, but invalid by the law of Florida regarding contracts of married

women.

The Illinois Supreme Court ruled in a suit attempting to foreclose the deed of trust on property in that state that the transaction was governed by Florida law. The opinion said: “A note takes effect from the time of its delivery and not from its date. Until the maker of a note parts with the possession and control of the instrument he may cancel it or dispose of it as he pleases, and a note is not executed until delivered. The note in this case was made in Florida and the trust deed was signed at the same time. *** (The husband) had designated the United States mail as the means of transmission of the note and trust deed to him and (the wife), in compliance with his request, deposited them in the mail in the state of Florida. When the note and trust deed were so deposited (the wife), the maker, parted with the possession of and lost all control over the papers and all right to retake or reclaim them. Under such circumstances, the delivery was complete in Florida, when the note and the trust deed were placed in the mail, directed to Charles H. Tobey, Trustee of the Ludington Estate." There are a number of cases cited.

Before adverting to the New York case, I may observe, that, if this mailing had been done on a reservation within state lines, there would seem no necessary conclusion that it made a delivery within that state, because the mailing would be essentially federal business and the location of the reservation but a fortuitous circumstance. Is not a postoffice or a mail station on the same footing as reserve territory within the confines of a state?

In the New York case the facts show that a renewal note was dated at Washington, D. C., where the arrangement for renewal was made and the note was there handed to the maker to execute, and as intended he took it to New York where he signed as maker and appellant as indorser and mailed it to payee. The note provided for a rate legal in Washington but usurious in New York. Appellant set up usury as a defense to the note as a New York contract, and the defense was held by New York court to be untenable.

It was said: "There was here every essential to a valid contract under the laws of plaintiff's domicile. *** For the affixing of the signature to the note by the maker and indorser, however important as acts, was yet but a detail of the performance and execution of the contract, which had been agreed upon with the plaintiff. * * * When appellant indorsed the note, which had been prepared and was brought to him, and sent it through the mail to the plaintiff, his engagement was with respect to a contract validly made according to the laws of the District of Columbia, and when the note was received by the plaintiff the transaction was then consummated in that place. In Lee v. Selleck, 33 N. Y. 615, it was said, with respect to an indorsement in Illinois of a note made in New York, that the fact of the indorser writing his name elsewhere was of no moment. *** For

the court to hold, because the note was not actually signed and indorsed in the District of Columbia, where the agreement it evidenced was made *** that the contract was void as contravening the usury laws of the place of signature would be intolerable and against decisions of this court." Here are cited among other cases, two by Minor in support of the conclusion that the place of signature and mailing is the place of the contract," and it may be well to briefly notice these cases at this point.

The former case shows a renewal note agreed to by a Pennsylvania corporation which was made, dated and payable in New York and mailed to the plaintiff in Pennsylvania. The discount was at a rate lawful in Pennsylvania, but unlawful in New York. The defense of usury was disallowed. The court said, among other things, that: "Neither can it be claimed, that because the obligation, instead of being signed in the state where the contract was made, is signed in another state and sent by mail to the place of contract, it must be governed by the us ury laws of the place where it was signed."

In the latter case it was held if a case where a renewal note was given at a rate usurious in New York, but lawful in Illinois, where it was executed and mailed, that it was an Illinois contract, it being said it was not shown there was any intention to evade the usury laws of New York, “and the note was manifestly executed with reference to the laws of the state of Illinois, where the maker resided." The sending by mail was referred to as a mere incident. As we have seen. however, the case was directly mentioned in citation in the opinion in the Staples case as supporting it, and the only fair construction to be drawn is. that the use of an agency, like the post office. to trans

(5) Wayne Co. Sav. Bank v. Low, 81 N. Y. 566. 37 Am. Rep. 533; Sheldon v. Haxtun, 91 N. Y. 131

mit a signed instrument is merely a circumstance, which in no way fixes or tends to fix the place of delivery. The intent of the parties as to what law shall govern subordinates the use of the agency to the purpose of the parties to a con'tract.

The Rule That Mailing Shows Place of Contract Limited.-In one of the cases cited by the Burr case supra, the defendant claimed under New York law, and the plaintiff under Maryland law. The notes were drawn in Maryland and sent to New York there to be signed and returned by mail. The opinion said:. "No particular place of payment is specified in either note. The authorities agree, that, if no particular place of payment is specified in a note, or if in other words, it is payable generally, the law of the place where it is made determines not cnly its construction, but also the obligation and duty it imposes on the maker. ***But by the place where the note is made is not meant the place where it is written, signed and dated, but the place where it is delivered, delivery being essential to its consummation as an obligation." It is said that by depositing such a "note in the mail, with the intent that it shall be transmitted to the payee in the usual way, the maker parts with his dominion and control over it, and the delivery is in legal contemplation complete." The court, therefore, held as to this note, payable generally, that it was a New York note, but this was far from holding, that such deposit would control as to any other kind of a note. It was said that: "In such cases the post office may be regarded as the common agent of both parties; of the maker for the purpose of transmitting the note, and of the payee for the purpose of receiving it from the maker." But this does not say that the post office should be regarded as the

(6) Bartlett v. Dodge, 16 R. I. 740, 19 Atl. 530, 27 Am. St. Rep. 777.

"common agent of both parties," where the maker is to deliver a note intended by the parties to be a contract of another place than where it is mailed. On the contrary, if deposit in the post office fixes the place of contract, it must be supposed that both parties intended accordingly.

The failure to apply the principle to notes signed and mailed in one state is shown in the fact of their being payable in another. Thus a Massachusetts case tuled that: "As the instrument was a promissory note and as it was payable in South Dakota, and was sent to the payee by mail and received by him in that state, it was a South Dakota and not a Massachusetts contract."

A striking parallel to the Burr case supra, with an opposite conclusion, is found in a Tennessee case, where the ruling was that the note was a contract in the state where it was made payable. The note was executed in Tennessee by a married woman expressed to be payable in Ohio and sent to the payee there by mail. As a Tennessee contract it would have been void. The court said: "We think it quite plain that the note in suit is an Ohio contract, notwithstanding it was signed by Mrs. Harley in Tennessee, it having been delivered and consummated in Ohio, and is payable in that state, as the place of performance." Here it would appear that the court disregards the evidence of mailing as showing a delivery, but says though the mailing is in Tennessee, the delivery is in Ohio, thus implying that the post office is not the common agent of both parties, but only the agent of the sender of a note expressed to be payable in another state.

The Indiana case" referred to as authority by the Burr case plainly shows the restricted application of the rule the

(7) Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456, 105 Am. St. Rep. 381. (8) First Nat. Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807, 97 Am. St. Rep. 840. (9)

Garrigue v. Kellar, 164 Ind. 676, 74 N. E. 523, 108 Am. St. Rep. 324.

Burr case supports. Thus notes were inade in Illinois payable at a bank in another state and sent to the latter by mail. In Illinois these notes by a married woman were valid and by Indiana law invalid. They were held to be Illinois contracts, but this was upon the theory that interpretation should be in favor of the validity of contracts. "This conclusion is supported by the rule of sanity and honesty that no contract must be held as intended to be made in violation of law, whenever by any reasonable construction it can be made consistent with the law and which it was competent for the parties to adopt." Had the fact of signing and mailing been deemed conclusive on the subject of delivery, this reasoning would be deemed not only unnecessary but very confusing indeed.

Where a note is signed for negotiation in another state-not to be a binding obligation until negotiated-it seems according to the weight of authority not to be completely delivered, though put in the mails for transmission, until it becomes a binding obligation.10 Of these cases there is a strong dissent by two members of the court in the New York case and the Connecticut case is upon same facts as the Mitchell case, which expressly dissents from its view.

the

The Chapman case supra has been succeeded by a case, which rules that there is no inherent lack of authority in a married woman to bind herself by signing a note in a state, where she cannot bind herself by her contracts, where it comes into the hands of an innocent holder without notice.11

(10) Milliken v. Pratt, 125 Mass. 374; Bell v. Packard, 69 Me. 105; First Nat. Bank v. Mitchell, 92 Fed, 565, 34 C. C. A. 542. Contra, Union Nat. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672, 57 L. R. A. 513, 88 Am. St. Rep. 614; Freeman's Appeal, 68 Conn. 533, 37 Atl. 420.

(11) Chem. Nat. Bank v. Kellog, N. Y., 75 N. E. 1103, 2 L. R. A. (N. S.) 299. Contra, Strawberry Point Bank v. Lee, 117 Mich. 122, 75 N. W. 444.

There lie entirely outside of the question here considered cases holding that the lex domicilii controls without regard to where a contract by a married woman is made and delivered, so far as enforcibility in the courts of the domicile are concerned.12 It would appear in these cases that the notes were sent by mail, but the court goes on the theory of the notes being North Carolina transactions without discussion of how they were delivered.13 And it has been ruled to be a prerogative of sovereignty to define the disabilities not only of resident inhabitants, but also of those temporarily there.14

A Maine case1 is very instructive on the question of mailing as a delivery. In this case the note was written in Maine and sent to Massachusetts by mail and to be returned in the same way to the payee in Maine. By the law of Massachusetts the married woman, a signer, as surety for her husband, could not bind herself. By the law of Maine she could. It was said: "Our opinion is that the note was made and intended by the parties to be paid in Skowhegan. For although it was signed in Cambridge, (Mass.) it was delivered to the payee in Skowhegan, (Me.); and it was not a completed contract until delivered. This proposition needs no citation of authorities, still we cite Laurence v. Bassett, 5 Allen, 140, as precisely in point."

The court then goes on to say: "But even if this were not conclusive, we should have no hesitation in deciding that the construction and legal effect of the note declared on must be determined by the laws of this state (Maine) on the ground that no contract must be held

(12) Hanover Nat. Bank v. Howell, 118 N. C. 271, 23 S. E. 1005; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 25 L. R. A. 188.

(13) See also Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 3 L. R. A. 214; Thompson v. Taylor (N. J. L.) 46 Atl. 567.

(14) Bank of La. v. Williams, 46 Miss. 618, 12 Am. Rep. 319.

(15) Bell v. Packard, 69 Me. 105.