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bound to protect. The peculiar formation which made the Siamese twins unique was exceedingly valuable to them, and the courts would, without question, have protected them against any efforts made without their consent to photograph or by picture to produce a counterpart of that formation for the purpose of exhibition, thereby reducing the profits they might receive from the exhibition of themselves. So, if the face of a woman, by reason

Subscription price, Three Dollars per annum, in advance. Single of its beauty, is especially valuable as a model

number, Twenty-five Cents.

ALBANY, N. Y., SEPTEMBER, 1901.

Current Topics.

from which the picture of a madonna could be painted, there could be no doubt that any attempt by photography to reproduce a face so that it might be sold to a painter, thereby depriving the owner of the opportunity to obtain for herself the profits arising from it, would be be restrained. The court held that in regard a violation of her right of property and would to profits when the person has no intention of making her face or form profitable, the same such cases tested and a precedent established. right exists. It is well to have the rights in Every considerate person will sympathize with

fore the public to advertise brands of flour, corsets, soap, or, mayhap, cheap cigars. Departed statesmen and philanthropists may or may not have any effective means of defense against this form of outrage, but surely the private woman,- and, of course, the private man, still in the flesh and capable of suffering from "guying," should have some legal means of preventing the appropriation of their features for such ignoble uses, against their will in order that thereby some enterprising tradesman may swell his profits by enlarging the sales of his articles.

There have been several suits brought lately by the possessors of pretty faces, claiming heavy damages by reason of the fact that their faces, or "counterfeit presentments" thereof, had been used for advertising purposes without their knowledge or consent. Perhaps the most notable of these cases is that of Miss Abigail Robertson, a pretty girl of eighteen years, living in Rochester, who sued the Rochester Pretty young women in their aversion to havFolding Box Company and the Lockport Mill-ing their portraits or photographs paraded being Company. for $25,000 damages because they had used her photograph without her consent in lithographs to advertise "Flour of the Family," a brand of flour sold by the Lockport Company. The lithographs were manufactured by the Rochester Folding Box Company. Miss Robertson alleged that her right of privacy had been invaded. A demurrer to her complaint was set aside by Mr. Justice Davy. The Appellate Division, in the Fourth Department, affirmed Justice Davy's findings, the opinion of the court being written by Mr. Justice Rumsey, who discussed the question from the standpoint of the legal scholar. He found himself obliged to differ with the contention of the defense that the law takes no cognizance of mental anguish. The court held that the plaintiff was entitled to maintain the action upon the principle that her personal comfort had been interfered with without her consent and to her injury. That a person's features or limbs may be in themselves profitable to the possessor if they are noticeable beauty, the

VOL. 63.- No. 9.

The Circuit Court of Appeals for the Fifth Circuit has recently passed upon a very unusual insurance question. A. had taken out a policy of insurance upon his life, and had made his wife his beneficiary. Later on they assigned a half interest in the policy to their two sons. A. was tried and convicted of the murder of his wife and was duly executed. Between his conviction and execution he assigned his in

terest in the policy to his two sons, who now the Columbia Law School declared a postclaimed, as assignees and as heirs and next-of- graduate faculty after 1903. He founded, last kin, to be the sole owners of the policy. The year, the Columbia Law Review, with the court holds that an action cannot be main-object of bringing advanced students into contained, even though the policy contained no tact with the faculty and well-known lawyers. provision for forfeiture in the event of execu- In the faculty Prof. Keener teaches equity and tion for crime. The court goes further, and trusts, jurisprudence and corporation law, on holds that if the policy, in express terms, per- most of which subjects he has written textmitted such a recovery, it would in effect be books. Prof. Kirchwey who has been apinsuring against the risk of a miscarriage of pointed acting dean by President Low, and justice, and void as against public policy. The court cites the opinion of the lord chancellor in the Fountleroy case (4 Bligh [N. R.], 194, 211), which, by the way, is the only other case upon this point in the books, and was an action by assignees in bankruptcy to collect a policy of insurance on the life of one Fountleroy, who had been convicted of forgery, then a capital offense, and executed. The case is entitled Burk v. Union Central Life Insurance Company, and will be found published in 105 Federal, 419.

who, it is believed, will be made dean of the school when the faculty and trustees meet in the fall, was born in Detroit, Mich., in 1855; he graduated from the Albany High School and from Yale in the class of 1879, and was admitted to the New York Bar in 1881. After some years of practice in Albany, he became professor of law in Union University and dean of the Albany Law School, an allied institution. He became a professor of law in Columbia in 1891, and in 1898 was given the Nash professorship. He is an editor of the Columbia University Quarterly and a member of the faculty committee on athletics. He is the author of several text and treatises dealing with the subjects of mortgages and real property, the law of which he teaches in Columbia. His rapid rise in his chosen field is a subject.

the State and particularly in Albany, where he was reared, and for a number of years practiced his profession in connection with the late James W. Eaton.

Prof. William A. Keener, for the past ten years dean of the School of Law of Columbia University, and one of the best known teachers of law in the country, has resigned his position as dean. Prof. Keener's purpose in relinquish- of satisfaction to his many friends throughout ing the deanship is to escape purely administrative duties which consumed time that he was anxious to devote to legal authorship and consultation; he will, however, as Kent professor of law, retain his chair in the law faculty, and will continue to give the courses which he has offered to the students of the school. The August issue of our always welcome Prof. George W. Kirchwey, the acting dean, contemporary, Law Notes, issued monthly by has taken administrative charge of the law school. Prof. Keener, the retiring dean, was born in Augusta, Ga., in 1856. He graduated from Emory College, and later took his law degree from Harvard in 1877. After practicing as a member of the New York Bar until 1883, he became assistant professor of law in Harvard, and later was elected to a full professorship and the Story chair of law. He came to Columbia in 1890, the same year that Seth Low assumed the presidency, and in 1891, on the resignation of Prof. Theodore W. Dwight, became dean of the school. He introduced into Columbia the "case " system of law instruction, and was instrumental in having

the Edward Thompson Company, law publishers, Northport, Long Island, New York, has come to hand, and well maintains the high literary character which it acquired almost from its inception. Its editorials, articles and notes are, as usual, interesting, but it is not of these we wish to speak. It is rather of the very curious advertisement of the Edward Thompson Company's publications, displayed in bold type upon the first page. We say "curious advertisement" for the reason that it is the first time in our knowledge of advertising methods that we have seen the advertiser wilfully cry down his own wares. In so many words we are told that although "it

takes a vast amount of experience to accom- ings instituted by Schalk, Ward & Wagner, of plish the plodding work of digging through 15 Broad street, the delivery of a check on a the mass of almost countless cases and accurately stating the pertinent authorities," yet their work is done without the aid of "eminent" lawyers, not because of the expense involved ("no pains or expense is spared "), but because "the eminent lawyer has more profitable tasks."

bank does not constitute an assignment of the funds in the bank of the drawer of the check, and hence a person withdrawing the amount to his credit in the bank by a second check, prior to the payment of the first check, does not make himself amenable to the charge of larceny. Dr. Straub was a client of Schalk, Of a truth," The wicked flee when no man Ward & Wagner, and on May 9th last, at the pursueth." To an outsider there is an inter- time of the slump in Northern Pacific stock, esting struggle now in the law publishing fra- held about 1,400 shares of stock. The brokers ternity (sic), though to the participants it is told him on that morning that they required probably too real for enjoyment. As our additional margins, and he gave them a check readers are aware, the Edward Thompson for $5,400 on a bank in Brooklyn, which they Company has for some years enjoyed an ex- credited to his account as security. Later in tremely profitable monopoly in the publication the day, when the panic ensued, his brokers of "various and sundry" encyclopedias upon sold out all of his stock, as he claimed, without different branches of the law. It seems, how-notice to him that they required further ever, that the publication of a new edition con- security. When Dr. Straub learned of this in temporaneously with the completion of the the evening, he drew another check on the first, together with the financially practicable, bank, and withdrew the moneys deposited to though legally abortive scheme of separating his credit, thus stopping payment of his check substantive from adjestive law, caused some, for $4,500 to Schalk, Ward & Wagner. perhaps not unnatural, discontent in the profession at large. This, the American Law Book Company has taken advantage of, and is now publishing a Cyclopedia of Law and Procedure, which it promises shall contain all the law in a splendid series of thirty-five volumes, and judging from their first volume now on the market and the many illustrious con- Schalk, on June 26th, went before Magistributors connected with the enterprise they trate Hogan, and upon his complaint that seem to be in a fair way to accomplish what is Dr. Straub had stolen $5,400 from the firm promised and to command a tremendous by stopping payment of his check, a warrant patronage. was issued for the doctor's arrest. Justice This, of course, was a direct infringement of, O'Gorman in discharging Dr. Straub and susthe "vested right" of the Edward Thompson taining the writ, said: Company to the cash of the book-buying prac"The delivery of the first check did not constititioner, and hence a valid casus belli. The tute an assignment pro tanto of the funds in decurious "Ad." above referred to was doubtless intended to be an opening gun in the battle, but it seems to have been over-loaded and kicked viciously, the charge going in the wrong direction.

According to a decision rendered by Mr. Justice O'Gorman, of the New York Supreme Court, First Department, in the case of Dr. Adam H. Straub, who was arrested not long ago on a charge of grand larceny, in proceed

Dr. Straub subsequently brought an action for illegal conversion of his stock, and claimed $20,000 damages. He also brought two actions against Schalk and Ward individually for slander in calling him a thief because he had stopped payment of the check given their firm.

fendant's bank account, and when he withdrew the same with a second check he was acting quite within his legal rights. An ordinary check does not operate as an assignment or appropriation of the drawer's funds, and, until acceptance or payment by the bank, the fund remains the property of the drawer, who reserves the right to withdraw or otherwise dispose of his deposits."

Dr. Straub has begun an action against the firm of brokers and its members individually for the recovery of $80,000 damages for false arrest and imprisonment.

COLLATERAL FACT.

MONEY PAID UNDER MISTAKE AS TO A action would lie to recover it back." The statement was adopted with approval by the Supreme Court in United States v. Barlow (132 U. S. 271, 282). As That money paid by mistake may be recovered a strict definition, however, it would be too sweeping, has long been a standing rule. As a ground of for it looks only to mistake on the part of the payer, relief, however, it has come to be honored as much and thus gives no effect to the consideration that no in the breach as in the observance. The first strik- one can force himself as a creditor on another withing exception is the sharp denial of redress to such out the latter's consent. Wherever the payee particimistakes as involve errors of law. Courts and pates in no manner in the mistake, the payer is in the jurists have almost with one voice been unwilling to light of a complete volunteer, and settled principles enforce the claims of conscience over so wide and so of policy and law will not permit him to call innospeculative a field. Whatever injustice may be done cent parties to account. Thus, where at the request in the individual case, the public interest is best sub- of an agent acting beyond his authority one confers served by the maxim that ignorance of the law will money or other benefit upon the estate of a principal not excuse. Neither is it all mistakes of fact that who neither approves or ratifies the act, a recovery may be redressed by a money count. No human tri- from the principal is not allowed (Bond v. Aitkin, bunal could afford to enter upon all the motives 6 Watts, 165). In Kelley v. Lindsey (7 Gray, 287), which prompt to human action, or to decide the finer an agent borrowed money without any authority and equities which may arise from all errors of judg-appropriated the same to the payment of the princiment, disappointments or lack of foresight. Even a pal's debt without his knowledge. The court, in court of chancery, with its greater facilities, will not awarding a new trial, said: "No one can thus make venture into this field. To quote Earl, J., in Damb- himself the creditor of another by the unsolicited mann v. Schulting (75 N. Y. 55): payment of debts; and it is not enough to create a liability that the defendant had the benefit of the money. There must have been shown some authority to make such payment, proceeding from the defendant in order to charge him with the same in a suit at law." It is difficult to see, therefore, how the two cases of Stotsenberg v. Fordice (142 Ind. 490), and VanDusen v. Blum (118 Pick. 197), where the need for mutuality is expressly repelled, can be supported. The same objection, however, cannot be raised to that large class of cases where money is lent or services performed for a creature of the law, as an estate or corporation, upon the unauthorized request of its acting representative. In these cases. though there can be no mutuality between the payer and the estate or corporation, there is mutuality with its visible exponent, and the mistake is not as to an agent acting without authority, but as to a principal dealing ultra vires. Accordingly where the payment is made not to the visible principal, but to his employe or factor, the payer's right to recover depends upon the authority of the agent to receive (Deery v. Hamilton, 41 Ia. 16; Lincoln v. Stockton, 75 Me. 141; Church of Erie v. Caughey, 85 Pa. St. 271).

"A court of equity will not give relief in all cases of mistake. There are many extrinsic facts surrounding every business transaction which have an important bearing and influence upon its results. Some of them are generally unknown to one or both of the parties, and, if known, might have prevented the transaction. In such cases, if a court of equity could interfere and grant relief, because a party was mistaken as to such a fact which would have prevented him from entering into the transaction if he had known the truth. there would be such uncertainty and instability in contracts as to lead to much embarrassment. Judge Story lays it down as a general rule that mistake or ignorance of fact in parties is a proper subject of relief only when it constitutes a material ingredient in the contract of the parties, and disappoints their intention by mutual error."

The same definition might well be given of the kind of error that will be a ground of relief at law. Cast in the form of a working formula, it might be described as a mutual mistake lying between the parties to the transaction, and in reference to a present or past fact, which, if true, would in the case of a claim be a ground of action, or in a case of a sale make the identity of the article conform to the belief of the parties. How far complete is this definition will be made clear hereafter. In the meanwhile the force of its various phrases should be pointed out.

I. Mistake must be mutual.

In the first half of the last century Baron Parke, in deciding Kelly v. Solari (9 M. & W. 428), stated as a rule: "Where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid, had it been known to the payer that the fact was untrue, an

In order, however, to regard the mistake as mutual. the payee need not know the exact circumstances under which the payment is made or the precise demand, real or imaginary, which it is designed to meet. If he, in silence, submits his hands to the receipt of the money or services, knowing that they are rendered under a sense of obligation, or on the expectation of payment, he makes the plaintiff's mistake his own (Stewart v. Kendall, 15 Col. 539). If, in such a case, value was given by the plaintiff and received by the defendant when nothing was owing. it follows in logic that it must have been received, as well as paid, by mistake; for otherwise the defendant was guilty of fraud in receiving that to which he had no claim. Hence where the vendor by mistake