a purchaser may act upon the state of the record.

Would a judgment plaintiff be guilty of any contempt of court in assigning his judgment after notice or knowledge of the defendant being garnished? We greatly doubt that he would, because execution on the judgment would not be in any way interfered with.

The court cites cases and draws the conclusion that the weight of authority supports the rule against garnishment in such a case, but says the judgment debtor could ask relief by audita querela, and the costs entailed on the garnishee, which he might not be entitled to recover from the garnishing creditor. The court says: "This may be conceded to be true, but in comparison to the great benefit to the people at large by reason of our holding this occasional inconvenience and loss must yield." How would it be an "occasional inconvenience and loss," if it happened every time this sort of garnishment is resorted to? It is more like a necessary loss and there seems no reason for saddling it on another party.

The court says, in conclusion: "In reversing this case we wish to say that the district court was evidently entirely justified in the action which it took in so far as the point under discussion is concerned. *** This court, however, has the power and it is its duty to so mold the law of the state as to bring about a harmonious system calculated, in its opinion, to work out the greatest good to the people." But this power seems only a discretionary power as to future holdings and does not go to the extent of taking away any right in a judgment lawfully rendered. In this case it took away a party's vested right, as the court impliedly says.

BULK SALES LAW-SUBROGATION TO RIGHTS OF CHATTEL MORTGAGEE WHO WAS PAID BY PURCHASER.-In Hicks v. Beals, 163 Pac. 83, decided by Oregon Supreme Court, it was ruled that where a purchaser of a stock of merchandise failing to comply with Bulk Sales statute as to giving notice to creditors, paid off a chattel mortgagee at the time in possession under his mortgage, but omitted to have the mortgage assigned to him, and it was released of record, he may sue to have the mortgage revived, and be subrogated to all the rights of the mortgagee to intervene in an attachment suit by the seller's creditors to subject the stock to their claims.

There are averments by the plaintiff of ignorance of the bulk sales law as excusing his not

attempting to comply with its provisions, his paying the mortgagee as part of the purchase price, his lack of knowledge of the seller having creditors, and his entire good faith in making the purchase. A decree granting the relief prayed for was affirmed by the supreme court.

We lay no great stress on the averments in plaintiff's petition, because all of them turn upon his ignorance of the Bulk Sales statute. Nevertheless, we think the ruling was right.

Subrogation is an equitable right and the only thing that plaintiff did, in effect, was to get the property he bought out of the possession of the mortgagee and claim it as his own. In doing this he injured mortgagee's creditors in no way. He did, however, bring the Bulk Sales statute into play, by his contract of purchase. He could have done the same thing by having the chattel mortgage assigned to him and then purchasing the stock. It would be a harsh rule, indeed, that would make him lose, because of technical requirement that he could not hold a lien on property belonging to himself. As matter of fact, he would not be holding property belonging to himself absolutely, but only as a trustee for the seller's creditors. It seems to us the privilege of subrogation, which is an equitable principle, was well applied in this

case.

EXECUTORS AND ADMINISTRATORSATTORNEY FEES IN DEFENDING WRONGFUL CHARGE OF MALADMINISTRATION.It ought to be plain that the guardian of a trust fund should not cause its depletion by any misconduct of his own. And it also would seem plain that no controversy, even in good faith, about the management of such a fund, whether rightful or wrongful, should involve any cost to the fund. Such questions should be deemed wholly apart from the fund.

In Loring v. Wise, 115 N. E. 302, decided by Massachusetts Supreme Judicial Court, there were charges of fraud and conspiracy against an administrator. They were held to be unfounded and the administrator was allowed his expenses, including attorney's fees, out of the estate in defending his conduct.

The court in approving these allowances, said: "The general rule that executors and administrators who are obliged to employ counsel in the settlement of their accounts shall be allowed to charge to the estate their reasonable fees cannot be doubted. *** In view of the charges of fraud made against the admin

istrator, and of all the circumstances, it cannot be said that the employment of counsel was without justification, or that the charges for such services were unreasonable."

This case showed a very acrimonious and long drawn-out controversy, in which the estate was interested, if at all, only on the side of those assailing the accounts. If they were successful, the assets would be increased; otherwise, they would stand as they were. The objector having no right over the estate, yet puts it to the hazard of loss by an unsuccessful suit. It has been held, that if one sues to recover a trust fund, the one withholding may be taxed, if the suit is successful, with attorney fees incurred by plaintiff. Harrison v. Perea, 168 U. S. 311. Why should it not be that if he is unsuccessful, he should be made to pay all expense in defending an unfounded charge?

Suppose it be conceded that the administrator should not be saddled with such expense, if charges are unfounded, yet is it less unjust that the estate should? It had nothing with the controversy. We think there is here room for a statutory rule.

In

ACTION-RECOVERY OF MONEY PAID ON ILLEGAL EXECUTORY CONTRACT. Greenberg v. Evening Post Assn., 99 Atl. 1037, decided by Connecticut Supreme Court of Errors, there is discussed the interesting question, whether there is a locus poenitentiae, so that one in pari delicto may recover money advanced in a corrupt bargain.

The facts giving rise to the suit were that there was a prize contest conducted by a newspaper, and its canvasser managing it agreed that, if plaintiff paid him $300 he would so arrange the voting for candidates by procuring fake subscriptions, each subscription entitling a candidate to a certain number of votes, that plaintiff would win the prize offered. The newspaper knew nothing about this arrangement, until plaintiff repenting made demand on it for a return of his money, all prior to the contest being decided. Upon refusal to return the money, plaintiff brought an action for its recovery.

The court said, in speaking of plaintiff's case: "His action is founded, not on the bargain, but on his repudiation of it, before the contest was closed, or the prizes awarded, or the rights of other competitors impaired. The question is whether it is not quite as consistent with sound public policy to encourage the prompt repudiation of illegal and immoral contracts by per

mitting, under such circumstances, the recovery of money paid upon an illegal or immoral consideration, as to declare the money forfeited the moment it is paid, and thus discourage repentance in such cases. The defendant practically concedes that the weight of authority authorizes the recovery of money paid for a purpose which is merely illegal, in case the bargain is repudiated promptly and before it is performed by the other party; but it insists that the rule is otherwise where the money is paid under an arrangement involving moral turpitude. We fail to see the propriety of such a distinction. In either case the recovery is not allowed out of tenderness for the plaintiff, but in some cases on the ground that the maxim, ex turpi non oritur actio, does not apply, because the action is not brought on the corrupt bargain; in other cases on the same ground, supplemented by the consideration that the law ought to favor the prompt repudiation of corrupt bargains. In all these cases the reasoning of the decisions would apply regardless of the degree of corruption involved in the original arrangement. It is true that in some cases when the original transaction involved only malum prohibitum it has been suggested that no recovery would have been allowed had the original transaction involved moral turpitude. ***We think the court correctly charged the jury that, in an action to recover back money paid for the purpose of carrying out a proposed illegal or immoral design, the plaintiff may recover upon proof that he seasonably repented of his bargain, and evidenced such repentance by repudiating the arrangement with reasonable promptness and before the other party had so far acted in performance of it as to carry any part of the illegal or immoral design into effect."

It was contended that the action did not lie, because the fraud here was a moral wrong and not merely malum prohibitum, but the cases cited and discussed held that recovery was to be based solely on the repudiation and not on the bargain, for example, Falkenberg v. Allen, 18 Okla. 210, 90 Pac. 415, 10 L. R. A. (N. S.) 494, where money was wagered on a fake footrace. But, if a newspaper was really conducting, or trying to conduct, a "square" contest, the repudiator ought to make it entirely whole as a condition precedent to right of withdrawal, and its agent should not have been deemed acting within his authority in making such a bargain. But this consideration induces the conclusion, that if it was promptly apprized, it ought to have been deemed to have ratified the arrangement, if it holds on to the money paid.

states. This amount, or such part thereof as was taken from individual owners, is waiting to be turned over to such owners or their heirs, upon proof of property according to the statute in such cases made and provided, which, in these cases, is the law embodied in Section 162 of the judicial code. I do not wish to be understood as saying that five million dollars in actual gold, silver or currency has been lying in the treasury vaults half a century, nor is there at this present writing, Uncle Sam don't do business in that way, but it is and has been theoretically there, and is as good as there to the fortunate claimant as a judgment in his favor will be followed by speedy realization of the amount awarded by the court of claims.

To understand the origin and character of the cotton restitution fund, as it may aptly be styled, it is necessary to begin at the beginning, which was the 12th day of March, 1863, when Congress passed the Abandoned and Captured Property Act. The title clearly expresses the purpose of the statute, which was to provide for the disposition of such property as might be captured by the Union forces as they advanced south; also property abandoned by the enemy and appropriated by the United States troops. The law provided for the sale of property taken from the enemy or abandoned by the enemy; but for the purpose of protecting the interests of loyal owners whose property might be taken, it further provided that such owners might bring an action in the court of claims, and by proving ownership, sale and deposit of the proceeds of the sale in the treasury,

recover such amount. The suit by loyal owners must be brought within two years from the close of the war. The time designated as the close of the war was exceedingly problematical in the early spring of 186 when the law was enacted, but subsequent events show it to have been August 20, 1866, making the limitation of time for bringing suit August 20, 1868.

While the close of the war was the date above designated, as decided by executive proclamation and judicial decision, the actua! close of hostilities was the 26th day of April, 1865, when General Johnston, following the example of General Lee, sur

rendered to the Union commander. While

desultory fighting continued for a brief period in Texas, the actual war virtually closed with the surrender of the two great Southern leaders. Now the period of cotton operations may be divided into two parts: First, that before the surrender: second, that after the surrender. The conditions prevailing, the circumstances attending the capture and disposition of cotton, the legal character of the operations. and of the property taken were radically different during each period.

During the actual hostilities, from the commencement of the Civil War to the surrender of the Confederate armies, cotton played a conspicuous part. It has been been appropriately called by the Supreme Court of the United States "the sinews of war to the Confederacy." During the first stages of the war it was exported in large quantities to Europe in exchange for munitions of war and other necessities for the people of the South. It was currency for the Confederate government and horse, foot and artillery to its armies. If its exportation had not been checked and well nigh prevented by the rigorous blockade of the Southern ports the war might have been indefinitely prolonged. Later, when exportation became practically impossible. large amounts were destroyed by the Confederate forces to prevent its falling into the hands of the United States troops, who,

in their turn, destroyed what they were unable to carry away to prevent its possession by the Confederate government. Large amounts survived the onslaughts of both Federals and Confederates, being found after the war stored in public warehouses and on plantations where it had been produced.

Numerous claims were presented to the Confederate Congress for the value of cotton destroyed by their troops to prevent it falling into the hands of the enemy, among them one from President Jefferson Davis for two hundred bales. For cotton captured or destroyed during this period, from the beginning of the war down to the close of actual hostilities, congress has made no provision by general law for the relief of owners, excepting the privilege granted to loyal owners to sue in the court of claims up to August 20, 1868. Special statutes may have been enacted in behalf of individuals, but no general measure has been taken to compensate parties for their propery captured or destroyed during the war, which is in accord with the well known principles of international law that no government can be held responsible for property destroyed in the track of war, whether belonging to friend or foe; the government is not liable, and cannot be held responsible unless such responsibility be assumed by voluntary act of the government.

Shortly after the surrender it was ascertained from captured Confederate documents, that large quantities of cotton remained on the plantations of owners, who had sold it to the Secretary of the Confederate treasury, taking in exchange Confederate bonds and giving bills of sale with an agreement to deliver it on call of the secretary at some designated point on the railroad or other convenient shipping place.

The Secretary of the Treasury of the United States appointed special agents to go south and collect the cotton disclosed by the Confederate documents and ship it to New York, where a general agent was appointed to sell it and deposit the net pro

ceeds in the treasury. The authority of the special agents was confined to the collection of cotton that had been sold to the Confederate government, or taken from it, or captured during the war, and no other. They were authorized to take what was known as Confederate cotton and instructed to take no cotton from private individuals. The treasury regulations issued at this time showed that the department considered the war closed with the surrender of the Confederate armies so far as taking property under the Abandoned and Captured Act was concerned. Such was the only logical conclusion under the plain terms of the act, as well as the construction given it by the Supreme Court. The court held that abandoned property was that which had been abandoned by the enemy, that captured property was that which had been captured from the enemy. Since the enemy had laid down its arms and submitted to the Federal government, there was no enemy from whom to capture property, neither was there any enemy to abandon property, hence the Abandoned and Captured Property Act had passed away with the conditions that led to its

enactment.

The special agents appointed by the secretary of the treasury and provided with information derived from the Confederate records, set out to gather together the cotton within their respective districts. The cotton collected by them was forwarded to some available point on the railroad or to the most convenient seaport from whence it was shipped to New York, sold, and the proceeds deposited in the treasury where it still theoretically remains, constituting the five million dollar cotton fund.

If the treasury agents had adhered to their instructions, and made no mistakes in taking cotton, and had been perfectly honest in their operations, then, none but cotton that had been sold to the Confederate government would have been appropriated and sold, and the money in the treasury would be the proceeds of the sale of prop

erty for which no individual claims would lie, as the Supreme Court has decided that cotton sold to the Confederate government, for which Confederate bonds had been received in payment, became the property of that government and upon its downfall reverted to the United States. But treasury agents did not adhere to their instructions, mistakes were undoubtedly made in taking some cotton and far more was taken with dishonest intent, so that thousands of bales were taken from Confederate storehouses or other sources, the proceeds of which never reached the United States treasury.

Conditions existing at the time the treasury agents went forth to find and appropriate Confederate cotton were peculiar. The cotton that had escaped the ravages of the war was scattered over the cotton belt. Some was stored in stored in Confederate warehouses, some in possession of individuals, some had been spirited away and hidden in the woods, some, and probably, much the larger part of the Confederate cotton, still remained on the plantations of the owners who had sold it to the Confederate secretary of the treasury. The former owners, who still retained the property in their possession, which they had sold for bonds which had become value- | less by reason of the downfall of the Confederacy, were naturally averse to giving Individuals who owned no cotton were desirous to obtain a share of Confederate cotton which appeared to be regarded as common prey to whoever could get hold of it. The informer also infested the land, ready to point out hidden cotton to the government agent who would share with him. The times were propitious for graft and grafters were not wanting, and last of all, most important of all, and worst of all, were some of the United States treasury agents. I do not indulge in wholesale denunciation of the government agents sent south by the Secretary of the Treasury in those troublous days. I believe such condemnation to be as untrue as it is unjust, but too many were represented by the en

it up.

ergetic official who loaded a ship with cotton and sailed with it to France, presumably never to return to the United States.

Numerous complaints to Congress were made by individuals that their cotton had been wrongfully taken from them by treasury agents under the pretense that it was Confederate property. Finally, on the 18th of May, 1872, Congress authorized the secretary of the treasury to investigate such claims and make restitution in such cases as he found to be well founded. Under the act, the secretary's jurisdiction continued only six months, during which period claims were presented for 136,000 bales of an estimated value of $13,600,000; an allowance was made of only $195,896. The act of May 18, 1872, expired on the 18th of November of the same year, from which date no relief was granted by Congress to cotton claimants by general law, until given by a law taking effect January 1, 1912, conferring jurisdiction upon the Court of Claims to hear and determine the claims of owners whose cotton had been taken under the provisions of the Abandoned and Captured Property Act subsequent to June 1, 1865, and upon proof of ownership, taken by a treasury agent, sale and deposit of the net proceeds in the treasury, said claimant to recover said proceeds. Some eight hundred cases have been filed in the Court of Claims under the above act, amounting, in the aggregate, to about $14,000,000.

The relief granted by the statute is limited to owners whose cotton was sold and the money derived from the sale placed in the treasury. The restitution is limited to the fund in the treasury produced by the sale of such cotton. Congress does not provide compensation for those whose property was wrongfully taken by its agents, though it was lost, destroyed or or stolen while in the care and custody of such agents. If cotton were taken from A and B at the same time by the same agent that belonging to A were shipped to New York, sold and the proceeds of the sale

and