Page:Harvard Law Review Volume 10.djvu/84

58 58 HARVARD LAW REVIEW, him to keep and deal with the goods as his own. If the bai/ee has acted in good faith, A should be without remedy against him. In Newman v. Newman, L. R. 28 Ch. D. 674, a trustee who received from the cestui que trust a relinquishment of the latter's equitable claim, without notice of a prior assignment by the cestui que trust to A, prevailed against A. The right of the bailee would seem to be indistinguishable in principle from that of the trustee. The decision in Nicholson v. Harper, [1895] 2 Ch. 415, is, however, in- consistent with the doctrine here mentioned. The bailor, after selling to A certain goods in the possession of a warehouseman, persuaded the latter to loan him money on the security of the goods. Mr. Justice North decided that the innocent warehouseman must deliver the goods to A without getting repayment of his loan to the bailor. The case was argued and decided wholly upon the effect of the Factors Acts, which were righdy held not to help the warehouseman. But the real strength of the bailee's case, that A was a mere assignee of the bailor's chose in action, seems not to have occurred to the court or counsel. If a bailor should pledge goods for present and future advances, and then sell them to A, and after the sale receive further advances from the pledgee, who had no notice of the sale to A, would the court say that A, in order to get the goods, must repay the money loaned before, but not the money loaned after the sale by the bailor? No such distinction ought to be made, and it is difficult to believe that it would be made. RECENT CASES. Admiralty — Damages in Tort— One Third off New for Old. — In a col- lision of two ships equally in fault, one suffered so that new parts were necessary. Held, that the damages must be estimated at the full value of the new parts rather than by deducting one third the cost of the new as of more value than the old parts before the accident; that the rule one third off new for old was applicable to insurance as a contract liability, but did not apply to torts, for the injured party must not be put to expense in order to be re-established. The AInnster, 12 T/ie Tivies L. R. 264. The distinction is settled law ; and the universal law of appraising costs of repair in insurance is not applied to injuries arising from negligence and causing liability in tort. The Gazelle, 2 W. Rob. 281 ; The Clyde, Swabey, 24; The Pactolus, Ibid. 124. The American law follows the English. The Baltimore, 8 Wall. 386. Though the real obligation in either case is to pay for the actual damage only, it is more equitable that the party in fault should pay for the unavoidable increase in the value of the property by the new materials, than that the innocent owner should have to pay to be in as good a position as he held at first. Agency — Duty of Solicitor as Officer of Court. — Held,^^-^^ a solicitor, on connecting himself with proceedings whereby a fund had been obtained out of court should investigate and see that the court has been informed of everything necessary for a proper disposition of the matter before it. For failure to do so he must make good a loss that could have been prevented by prompt action, though there was nothing to lead him to suspect anything wrong. The CJiance7-y Forgery Case {Marsh. Joseph), 12 The Times L. R. 255, 266. See Notes. Bankruptcy— Bankrupt's Debtor — Bankrupt's Right to Sue. — An as- signee in bankruptcy under the Bankruptcy Act of 1867 was appointed for plaintiff after this action of assumpsit had been begun. The assignee did not enforce plaintiffs claim against defendant, and the assignee's right to enforce it was now barred under § 5057 of the Bankruptcy Act. It was urged for defendant that by the assignment in bankruptcy a bankrupt is divested of all right to sue his debtors. Held, that " not- withstanding the assignment under the Bankruptcy Act, there is left in the bankrupt