REVIEWS. 317 ing any of the checks in question, and it would seem that the defendant was entitled to recover the proceeds of all. The plaintiff's right is not founded upon the ground that the moment of failure fixes the status of all the parties concerned, as the court holds, but upon the fraud of the defendant in receiving the deposits with knowledge of its insolvency. Craigu v. Hadley, 99 N. Y. 131. Where the defendant has obtained title to personal property by fraud, and afterwards disposes of the property, a constructive trust arises as to the proceeds, in favor of the former owner, so long as the proceeds can be traced. American Co. v. Fancher, 145 N. Y. 552. In the principal case, the defendant held in trust its claim against the correspondent for the proceeds of all the checks. An interesting recent case in this connection is that of City Bank v. Blackmore, 75 Fed. Rep. 771, where, a deposit of a draft having been received with knowledge ot insolvency, and forwarded to a correspondent, the latter applied the draft to reduce the indebtedness of the insolvent bank of deposit to the correspondent. After some delay, the draft was paid to the correspondent upon the express request of the i)laintiff, the depositor. It was there ^<r/^that, although the depositor would have had a right to rescind the contract of deposit on the ground of fraud by the bank receiving it, yet, having authorized the payment to the correspondent, plaintiff was estopped from deny- ing that the title of the correspondent to the draft was good as against himself and the bank of deposit; therefore, the only ground on which the plaintiff could recover would be that the insolvent bank had been thereby enriched after the failure to the amount of the draft ; but although the debt of the insolvent bank had been reduced by the amount collected, it was benefited only to the extent of the dividends to which the correspondent would have been eutitled as a general creditor, and this was the measure of plaintiffs recovery. Trusts — Misappropriation of Fund — Action at Law. — Money was de- posited in a bank by a mother to the credit of herself or her son, as trustee, for the purpose of her support and burial. The son drew it out, and appropriated it to his own use, without the mother's knowledge or consent. Held, that the beneficiary might sue at law to recover the definite sum misappropriated, as money had and received. Ifenchey v. Henckey, 44 N. E. Rep. 1075 (Mass.). Apparently, the court go on the ground that, even supposing a trust to have been created here, and accepted by the trustee, an action at law could be maintained against the trustee Ijecause his misappropriation was of a definite sum of money. This cannot be supported on principle. The defendant had accepted the trust, and it was still open. The mere fact that the subject of the trust was a known sum of money is not material. Therefore, the doctrine of the principal case might well be extended to cases where land, the subject of a trust, is sold by the trustee in violation of the terms of the trust, and an action at law ought to be allowed for the value of the land. Kut the law is clear, that in such a case recourse must be had to equity. Norton v. J^ay^ 139 Mass. 230. See Jasper v. Hagen, i N. Dak. 75. REVIEWS. A Preliminary Treatise on Evidence at the Common Law. Part I. Development of Tri.al by Jury. By James Bradley Thayer. Boston: Little, Brown, & Co. 1896. pp. x, 186. These one hundred and eighty pages are only a portion of the first volume of Professor Thayer's expected treatise on the Law of Evidence. This portion may well stand by itself, however, as an important contribu- tion to legal learning. Just how important, can probably be fully appre- ciated only by one already learned in the subject. At the first reacling, indeed, the novice will hardly realize how many vexed and obscure points of legal antiquities are here elucidated, simply l)ecause he will, if he have a real interest in the history of English law, find it such delightfully easy reading. Every serious historical scholar nowadays tries to get at the original sources, and cite them in his book. Unfortunately, however, very k'ff of them have the art of making the original authorities tell their
