The law on the subject, despite the increasingly liberal view taken by the majority of courts, is in a very unsatisfactory state. The rule is declared to exist in full force, yet so many arbitrary exceptions have been grafted on it that, in fact, nothing remains thereof. Thus far, at least ten well-defined exceptions have been established. (1) A mistake of foreign law has been dealt with practically everywhere, as a mistake of fact; and so, with a foreigner mistaking the law of the forum. (2) Public moneys erroneously disbursed are recoverable; 5 (3) money paid to trustees or court officers under mistake may not be retained; and (4) payments made under a void statute or on reliance of a decision later overruled must, in some jurisdictions, be returned. (5) Where a court officer in administering a fund makes erroneous payments as between the beneficiaries, the court will allow a set-off against future claims or will order repayment, as the case may require.9 (6) The courts have everywhere laid hold of an accompanying mistake of fact and have accorded the adequate remedy; 10 (7) and likewise with an equity present in the case, such as fraud," superior knowledge of a party,12 or a fiduciary relationship.13 (8) A mistake as to legal title or another antecedent right is a well-established exception in England and one growing in favor in this country.14 (9) Where the parties in reducing an oral agreement to writing have failed to express the intent of all concerned through the technical use of language or otherwise, the courts have almost universally granted reformation, 15 though it is difficult to perceive why a

250 Pa. 304, 95 Atl. 462; Penn. Stave Co.'s Appeal, 225 Pa. 178, 73 Atl. 1107; Godwin v. Da Conturbia, 115 Md. 488, 80 Atl. 1016; Euler v. Schroeder, 112 Md. 155, 76 Atl. 164.

But in Connecticut and Kentucky the distinction between a mistake of law and one of fact is disregarded both in equity and at law. Bronson v. Liebold, 87 Conn. 293, 87 Atl. 979; Park Bros. v. Blodgett and Clapp Co., 64 Conn. 28, 29 Atl. 133; Supreme Council Catholic Knights v. Fenwick, 169 Ky. 269, 183 S. W. 906; Blakemore v. Blakemore, 19 Ky. L. Rep. 1619, 44 S. W. 96.

3 Sampson v. Mudge, 13 Fed. 260; Rosenbaum v. U. S. Credit System Co., 64 N. J. L. 34, 44 Atl. 966. By statute in California a mistake of foreign law is a mistake of fact. CAL. CIV. CODE, § 1579. Similarly in North Dakota, South Dakota, Montana, and Oklahoma.

4 Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652.

State v. Young, 134 Ia. 505, 110 N. W. 292; Wisconsin & Central R. R. Co. v. United States, 164 U. S. 190. Contra, People v. Foster, 133 Ill. 496, 23 N. E. 615. 6 Ex parte James, L. R. 9 Ch. 609; Gillig v. Grant, 23 App. Div. (N. Y.) 596, 49 N. Y. Supp. 78.

7 Spalding v. City of Lebanon, 156 Ky. 37, 160 S. W. 751. Contra, Yates v. Royal Ins. Co., 200 Ill. 202, 65 N. E. 726.

Centre School ¡Township v. State, 150 Ind. 168, 49 N. E. 961. Contra, Kenyon v. Welty, 20 Cal. 637.

9 Finch . Smith, [1915] 2 Ch. 96; In re Birkbeck, etc. Society, [1915] 1 Ch. 91; Hemphill v. Moody, 64 Ala. 468.

10 Freeman v. Curtis, 51 Me. 140; Ray & Thornton v. Bank of Kentucky, 3 B. Monroe (Ky.) 510.

11 Chelsea Nat. Bank v. Smith, 74 N. J. Eq. 275, 69 Atl. 533; Tolley v. Poteet, 62 W. Va. 231, 57 S. E. 811.

12 Moreland v. Atchison, 19 Tex. 303; Jordan v. Stevens, 51 Me. 78.

13 Tompkins v. Hollister, 60 Mich. 470, 27 N. W. 651.

14 Cooper v. Phibbs, L. R. 2 Eng. & Ir. App. 149; Stoeckle v. Rosenheim, 10 Del. Ch. 195, 87 Atl. 1006; Burton v. Haden, 108 Va. 51, 60 S. E. 736; McIntyre v. Casey, 182 S. W. 966 (Mo.).

15 Griswold v. Hazard, 141 U. S. 260; Gross Construction Co. v. Hales, 37 Okla. 131,

court of equity should distinguish such a case from one where the written contract represents the agreement of the parties and the error occurs as to its legal effect.16 (10) Two states have succeeded in drawing a metaphysical distinction between mistake and ignorance of law, allowing relief in the former case only.17 In all other cases · - if any the maxim

remains intact. The continued lack of frankness on the part of the courts, obvious from the presence of this formidable array of exceptions, makes it clear that relief from the confusion can hardly be expected from that source. Nor are attempts by writers to provide criteria for reconciling old cases and for granting relief in new ones of much value. Such criteria have in the past been attempted,18 and those which have not been wholly discarded have served only to establish additional exceptions and thus to increase further the confusion. In fact, no criterion is possible, much less, desirable. It can result only in an effort to save the last vestige of a decrepit doctrine unsupportable on principle, and unjust in its operation. Legislative action, abolishing the maxim and establishing a mistake of law on an equal footing with one of fact, seems to be the only solution. Yet relief even from that source is unhoped for, if the judiciary adopts the attitude recently taken toward such legislation in Oklahoma." There the court, by construing statutes less narrowly, could have given them the effect of banishing the maxim entirely from its operation in civil cases, where it properly has no application; but instead, the court stood strictly on precedent and practically negatived the true purpose of the legislation.20 However, statutes more clearly defined in terms and scope than those thus far passed 21 would make the recurrence of such judicial obstruction impossible.

RECENT CASES

ADMIRALTY PRACTICE SUIT AGAINST NONRESIDENT ENEMY ALIEN. A British company sued an Austrian corporation in personam in a United States admiralty court after England declared war on Austria. The defendant appeared and gave a bond releasing an attachment placed on one of its ships; but the District Court dismissed the libel, and by the time the case reached the Supreme Court, the United States also had declared war on Austria, and had prohibited all intercourse with Austrian subjects. The supervening 129 Pac. 28; Good Milking Machine Co. v. Galloway, 168 Ia. 550, 150 N. W. 710; Philippine Sugar, etc. Co. v. Philippine Islands, 247 U. S. 385.

16 See I STORY, EQUITY JURISPRUDENCE, 13 ed., 113, note.

17 Culbreath v. Culbreath, 7 Ga. 64; Lawrence v. Beaubien, 2 Bailey (S. C.), 623. 18 See Cooper v. Phibbs, supra; KERR, FRAUD AND MISTAKE, 3 ed., 431; STORY, EQUITY JURISPRUDENCE, 13 ed., § 121, I L. QUART. REV. 298; 17 CENT. L. JOUR. 12; 18 CENT. L. JOUR. 7; 2 POMEROY, EQUITY, 3 ed., § 849; 5 COL. L. REV. 366.

19 Campbell v. Newman, 51 Okla. 121, 151 Pac. 602.

20 But see Gregory v. Clabrough's Executors, 129 Cal. 475, 62 Pac. 72. The statutes in California and Oklahoma are the same, but the California court construed them as including recovery for money paid by mistake as well as reformation of

contracts.

21 See CAL. CIVIL CODE, § 1578; N. DAK. CIV. CODE, 1913, § 5855; So. DAK. CIV. CODE, § 1207; Okla. Rev. Laws, 1910, § 909; MONT. REV. CODE, 1907, § 4984..

charges in fact and in law were considered by the Supreme Court as is the practice in an admiralty case. Held, that the case be remanded for further proceedings, but no action, except to preserve the security, to be taken until the defendant can present his defense adequately. Watts, Watts & Co., Ltd. v. Unione Austriaca di Navigazione, etc., U. S. Sup. Ct. Off., October Term (1918), No. 25.

Since the proceeding is in personam, the Austrian corporation is to be treated as an enemy alien defendant, for the admiralty doctrine that a personal defendant is a claimant is applicable only to proceedings in rem, where the right to appear is based on a claim to the property. See BENEDICT, ADMIRALTY, 4 ed., § 296. Where a suit against a nonresident alien enemy is entertained, he is permitted to defend. Seymour v. Bailey, 66 Ill. 288 (1872); McVeigh v. United States, 11 Wall. (U. S.) 259 (1870); Robinson v. Continental Insurance Co., [1915] 1 K. B. 155. Still, if the defense cannot be adequately presented it is not fatal, where there has been an appearance or the proceeding is quasiin-rem. Porter v. Freudenberg, [1915] 1 K. B. 857; Dorsey v. Dorsey, 30 Md. 522 (1869). See 31 HARV. L. REV. 471, 475. The delicate problem is to afford the plaintiff, an ally, as effective a remedy as he would have if suing a loyal citizen, since otherwise the enemy is really protected; and yet allow the defendant a fair hearing. The solution is often in the form of a postponement within the discretion of the court. See Porter v. Freudenberg, [1915] 1 K. B. 857, 892; Robinson v. Continental Insurance Co., [1915] 1 K. B. 155, 162. When the plaintiff is amply protected by a bond such a practice is commendable, but it might be a hardship on the plaintiff to insist that he shall wait. See In re Amsinck's Estate, 169 N. Y. Supp. 336. The more flexible practice of allowing the lower court to grant a continuance in court in its discretion is to be favored, especially in admiralty. See The Kaiser Wilhelm II, 246 Fed. 786.

BANKRUPTCY

PREFERENCES - PAYMENT TO THE HOLDER OF A NOTE AS A PREFERENCE TO THE INDORSER OR SURETY. - Within four months of the petition to have him adjudged a bankrupt, the maker of a note paid the holder. His trustee in bankruptcy sues the accommodation indorser alleging the payment was a preference to the indorser which he had reasonable cause to believe would be effected. Held, on a motion to dismiss the bill, the trustee may recover. Cohen v. Goldman, 42 Am. B. Rep. 85 (C. C. A., 1st Circ.).

There is no question that a surety or indorser is a creditor of the principal debtor. Stern v. Paper, 183 Fed. 228. It is also clear that a creditor may receive a preference by a transfer to a third person. Western Timber Co. v. Brown, 129 Fed. 728. If the surety solicits the payment of a note by the maker to the holder, many courts compel the surety to surrender that amount. Kobusch v. Hand, 156 Fed. 660; In re Sanderson, 149 Fed. 273; Brown v. Streicher, 177 Fed. 473; Atherton v. Emerson, 199 Mass. 199, 85 N. E. 530. The surety has been compelled, as in the principal case, to surrender such payment even when he did not participate in the transfer. Paper v. Stern, 198 Fed. 642. Contra, Reber v. Shulman, 183 Fed. 564. As a necessary construction of the Bankruptcy Act, the view of the principal case is sound, though one's first impression is that it is severe on the surety. Generally, the holder of a note, who has surrendered a payment by the maker as a fraudulent preference, may still hold the sureties. Harner v. Batford, 35 Ohio St. 113; Hooker v. Blount, 44 Tex. Civ. App. 162, 97 S. W. 1083; Perry v. Van Norden Trust Co., 118 App. Div. 288, 103 N. Y. Supp. 543. Contra, Re Ayers, 6 Biss. 48. The surety may, however, prove in bankruptcy his right of subrogation. BANKRUPTCY ACT, § 57 i. If the holder of the note retains the payment, the surety suffers no greater hardship by surrendering that amount, for he now may prove in bankruptcy his claim for reimbursement. BANKRUPTCY ACT, 857 g; Keppel v. Tiffin Bank, 197 U. S. 356.

BILLS AND NOTES

FORGED CHECKS - NEGLIGENCE OF DEPOSITOR. A depositor had a special employee whose duty it was to check up his bank statements but by whose neglect of duty another employee was enabled to make a series of forgeries before being detected. The forgeries would have been obvious on a simple checking of the account. Held, the bank is not liable for the payment of forged checks which could have been prevented by the depositor's use of due care. California Vegetable Union v. Crocker National Bank, 174 Pac. 920 (Cal.).

A payment by a bank of a forged check can not in general be charged to a depositor's account. Morgan v. U. S. Mortgage & Trust Co., 208 N. Y. 218, IOI N. E. 871; Shipman v. The Bank of the State of N. Y. 126 N. Y. 318, 15 N. Y. S. 475. In England it is held that when a pass book is taken out of the bank by the customer or some clerk of his and returned without objection there is no settled account between the bank and customer by which both are bound. The Kepitigalla Rubber Estates, Limited v. National Bank of India, Limited, (1909), 2 K. B. 1010, 1027. But in the United States the great weight of authority requires some examination of the bank's statement. Leather Manufacturer's Bank v. Morgan, supra; First National Bank v. Allen, 100 Ala. 476, 14 So. 335; Jordan Marsh Co. v. National Shawmut Bank, 201 Mass. 397, 87 N. E. 740. Some courts hold that a depositor may by his course of conduct, negligence or laches create an estoppel which prevents recovery. Denbigh v. First National Bank, 174 Pac. 475 (Wash.). Others reach the same result on grounds of contractual obligation. Morgan v. U. S. Mortgage & Trust Co., supra. It is generally conceded, however, that the duty of the depositor does not extend the discovery of forged signatures. Critten v. Chemical National Bank, 171 N. Y. 219, 228, 63 N. E. 969; Prudential Insurance Co. v. National Bank of Commerce, 177 N. Y. App. 438, 164 N. Y. S. 269. It is, however, agreed that where a forgery is discovered by the depositor it becomes his duty to report it immediately. Pratt v. Union National Bank, 79 N. J. L. 117, 75 Atl. 313; McNeely Co. v. Bank of North America, supra; Findley v. Corn Exch. National Bank, 166 Atl. 57. Even where the clerk of the depositor has done the forging and cleverly concealed the same the depositor has been held liable for injury caused the bank. Meyers v. Southwestern Bank, 193 Pa. 1, 44 Atl. 280; 13 HARV. L. REV. 304. A fortiori, the American cases would hold the depositor liable for injury to the bank caused by lack of due care in checking the account. The effect of decisions like the principal one is to recognize the business sense of an implied contractual obligation on the part of the depositor.

CARRIERS INJURIES TO PASSENGERS - EVIDENCE OF NEGLIGENCE. The defendant's ship was anchored in Havana harbor, and the passengers were to go ashore in lifeboats on an excursion. A seaman offered his arm to the libellant to assist her in entering the boat. While she was relying on his aid, he took away his arm, and the libellant fell and was injured. Held, there was no evidence of negligence to go to the jury. Goode v. Oceanic Steam Navigation Co., 251 Fed. 556, C. C. A., 2d Co.

As a general rule, a carrier owes no duty to give personal assistance to a passenger in entering or leaving the conveyance. Hurt v. St. Louis, Iron Mountain & So. R., 94 Mo. 255, 7 S. W. 1. If there are unusual dangers or obstacles, however, the carrier must render assistance. Alexandria Ry. v. Herndon, 87 Va. 193. Cf. New York, Chicago, & St. Louis Ry. Co. v. Doane, 115 Ind. 435, 17 N. E. 913. The same is true if the carrier has accepted as a passenger one obviously infirm. Southern Ry. Co. v. Mitchell, 98 Tenn. 77, 40 S. W. 72. And while a carrier is not ordinarily liable for the failure of its servant to perform what under ordinary circumstances would be an act of courtesy on his part, it is liable if on account of exceptional circumstances it would also become a duty instead of a mere courtesy. Weightman v. Louisville, New

Orleans & Texas Ry. Co., 70 Miss. 563, 12 So. 586. In the principal case the question whether the courtesy had become a duty, owing to exceptional circumstances, should have been left to the jury. Citizens Street Ry. Co. v. Shepherd, 29 Ind. App. 412, 62 N. E. 300. If it had been answered in the affirmative, the carrier would have been liable for failing to perform such duty with due care.

CARRIERS WHO ARE COMMON CARRIERS EXCLUSIVE SERVICE TO COKE PLANT. The defendant, an independent company organized under a general railroad act, operated a network of switch tracks wholly within the premises of a coke corporation. Its sole business consisted in shifting cars for the coke corporation between the plant and two connecting belt lines, such cars coming from and going to places in different states. The plaintiff seeks damages for injuries received in the defendant's employ, charging the latter with violation of the federal Safety Appliance Act. Held, that the defendant is a common carrier engaged in interstate commerce and liable for violation of the federal Safety Appliance Act. Kenna v. Calumet, H. & S. E. R. Co., 120 N. E. 259 (Ill.). A common carrier is defined as one who undertakes for hire to transport from place to place the goods of such as choose to employ him. Illinois Central R. R. v. Frankenberg, 54 Ill. 88; Lloyd v. Haugh, etc. Storage, etc. Co., 223 Pa. 148, 72 Atl. 516. See I HUTCHINSON, CARRIERS, 3 ed., § 47; STORY, BAILMENTS, 7 ed., § 495. Whether the one charged as a common carrier is within this definition is a question of fact for the jury. Schloss v. Wood, 11 Colo. 287, 17 Pac. 910; Collier v. Langan, etc. Storage, etc. Co., 147 Mo. App. 700, 127 S. W. 435; Avinger v. South Carolina R. R. Co., 29 S. C. 265, 7 S. E. 493; The Tap Line Case, 23 I. C. C. 277. In the principal case, it does not appear that the defendant held itself out for purposes of general transportation. Its only business consisted in switching cars for the coke corporation between the plant and the belt railroads. If this system of internal trackage had been operated by the coke corporation itself, such system, as the court admits, would have constituted a mere plant facility. Wade v. Lutcher & Moore Cypress Lumber Co., 20 C. C. A. 515, 74 Fed. 517; Taenzer & Co. v. Chicago, R. I. & P. R. Co., 95 C. C. A. 436, 170 Fed. 240; General Electric Co. v. N. Y. C. & H. R. R. Co., 14 I. C. C. 237. The fact that the system was operated by an independent corporation does not alter its character. Crane Iron. Works v. U. S., 1 U. S. Com. Ct. 453, 209 Fed. 238; In re Muncie & Western R. Co., 30 I. C. C. 434. Furthermore, the railroad was not even a public utility, for since its lines were wholly within the premises of the coke corporation it was not accessible to the general public. Cf. Matter of the Split Rock Cable Road, 128 N. Y. 408, 28 N. E. 506; Weidenfeld v. Sugar Run R. Co., 48 Fed. 615 (U. S. C. C., Pa.). Nor could organization under the general railroad act clothe the business with a public interest; the facts alone could give it that character. Munn v. Illinois, 94 U. S. 113; People v. Budd, 117 N. Y. 1, 22 N. E. 670; Brass v. North Dakota, 153 U. S. 391. Unless by accepting the benefits of the act, the defendant was estopped to show that it was not a common carrier, the decision seems wrong. See Turnpike Co. v. News Co., 43 N. J. L. 381; Chicago, M. & St. P. R. Co. v. Ackley, 94 U. S. 179.

. WILLS CONFLICT OF LAWS EQUITABLE ELECTION. Testatrix died domiciled in England, having devised realty in Paraguay upon trust for charity. By the law of Paraguay this devise was valid only as to one-fifth, four-fifths being the legal portion of the obligatory heirs. These heirs were also legatees of property situated in England. Though under the Paraguayan law the obligatory heirs took both under and against the will and were not required to elect, yet, held, that they must elect. In re Ogilvie, [1918] 1 Ch. 492.

When A makes B, his heir, and C legatees under his will, and the legacy to