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check, an accord and satisfaction is fairly shown. Plaintiff had no business to keep and use the check otherwise than on the conditions on which it was sent. As the court aptly puts it," When he indorsed and collected the check referred to in the letter asking him to sign the enclosed receipt in full, it was the same, in legal effect, as if he had signed and returned the receipt, because acceptance of the check was a conclusive election to be bound by the condition upon which the check was offered." 2 Parsons on Contracts, 8th ed., p. *687 and note t, has a discussion of the subject. In connection with this subject it is interesting to note a case just decided in Michigan, where plaintiff, having received a sum for wages minus the amount of a railway fare, which defendant expressly refused to allow, and having given a receipt in full, was held thereafter precluded from successfully suing on the claim for the fare, though both parties admitted the sum actually paid to be due so far as it went. Tanner v. Merrill, 65 N. W. Rep. 664 (Mich.). Two judges dissent, on the ground that payment of a debt admittedly due is no considerationfor a discharge of a further claim. But as the two claims were not separate, and the payment and receipt were given for a lump amount which was unliquidated, the case would seem to be analogous to the New York case.

CONTRACTS -- ILLEGALITY. The plaintiff and defendant had entered into a partnership to carry on certain faro and crap games. The plaintiff now sues for his share of the proceeds in the hands of his partner. Held, that where the illegal contract has been carried out, the illegality of the contract is not a bar to calling the partner who holds the profits to account. Mc Donald v. Lund, 43 Pac. Rep. 348 (Wash.).

The decision in this case is carefully reasoned out and well supported by authorities cited, yet it does not appear sound. The plaintiff's claim is founded on the contract, and allowing a recovery is carrying the contract into effect. The better mode of dealing with such cases is to leave the parties remediless. The vice of the contract enters into the settlement, and the law should interfere to aid neither when both are in pari delicto. Dixon v. Olmstead, 9 Vt. 310; Embrey v. Jemison, 131 U. S. 336; Harvey v. Merrill, 150 Mass. 1; 2 Parsons on Contracts, 8th ed. p. *747, and cases cited.

CONTRACTS - PUBLIC POLICY AGREEMENT TO WAIVE CLAIM FOR NEGLIGENCE. Where an employee joins a voluntary relief association to which he contributes, and his employers guarantee the obligations, pay the operating expenses, make up deficits in the fund, supply surgical attendance, etc., an agreement by him in his voluntary application for membership that acceptance of benefits from the association for an injury shall operate as a waiver of his claim for damages, is not void as against public policy. Otis v. Pennsylvania Co., 71 Fed. Rep. 136.

Where under a similar agreement he elects to accept aid from the association in ignorance of the strength of his claim against the company, it was held in another recent case that the effect of his election, in barring an action against the company, is not avoided. Vickers v. C. B. & Q. R. R., 71 Fed. Rep. 139.

Both decisions are amply supported by the authorities cited. It is the election given to the employee either to receive aid from the association or to sue the company, that removes the objection that the contract is one to avoid liability for one's own negligence. Contracts of the latter class are of course void. Roesner v. Hermann, 8 Fed. Rep. 782; Runt v. Herring, 21 N. Y. Supp. 244.

CONTRACTS THE POWERS OF COLLEGE AUTHORIities. Plaintiff, who had beer. expelled from defendants' college, brought an action for breach of contract, alleging that the expulsion was unlawful. Held, that the relation between a student and his college is not contractual, that there was no ground for judicial interference, and that plaintiff's only remedy was by appeal to the Visitor. Green v. Master and Fellows of St. Peter's College, Cambridge, 31 Law Journal, 119. See NOTES.


LIABILITY OF CHARITABLE CORPORATION FOR NEGLIGENCE OF ITS SERVANTS. — Held, a charitable corporation (in this case a hospital) is not liable for injuries to a patient due to negligent treatment by the physicians and nurses in its employ where it has exercised due care in their selection. Hearns v. Waterbury Hospital, 33 Atl. Rep. 595 (Conn.). See Notes.

CORPORATIONS MISAPPROPRIATION BY DIRectors. Held, that one who holds stock as collateral may maintain a bill against the directors whose misappropriation impairs his security. Green v. Hedenberg, 42 N. E. Rep. 851 (Ill.).

An English case decided in 1852 held that a cestui que trust of shares in a railway could, by joining its trustee, maintain a bill against the directors alleging certain illegal acts were in contemplation. Ry. v. Rushout, 5 De G. & S. 290. In 1879 the Supreme Court of Minnesota held that an action would lie by pledgees of stock against the directors, not in the name of the corporation, but directly to protect their own interest against a breach of trust. Baldwin v. Canfield, 26 Minn. 43. The principal case follows this latter decision without comment.

CORPORATIONS ULTRA VIRES-LAWFUL ACT FOR UNLAWFUL PURPOSE. The receiver of an insolvent national bank sued a State bank for an assessment made upon shares of an insolvent bank owned by the defendant corporation, which pleaded that it did not become possessed of the shares by way of pledge, upon execution, or upon compromise of a debt, the only ways in which it lawfully might; that its president had bought the stock and caused its transfer to the defendant, against provisions of both Federal and State statutes. Held, that the defendant could not set up its own violation of law to escape the responsibility resulting from its illegal action." State Bank v. Hawkins, 71 Fed. Rep. 369.

The court carefully distinguishes between ultra vires in the sense of a lack of corporate authority to perform the act in question under any circumstances, in which case it is available as a defence to either party to the contract, and ultra vires as applied to an act which the corporation is authorized to perform for a specific purpose, and which has been performed for an unauthorized purpose, in which case it is not. The present decision falls within the latter class. On the first point, see C. T. Co. v. Pullman Co.,139 U. S. 24; 8 HARV. LAW REV. 506. The principal case cites numerous authorities upon the second point. See especially Bank v. Matthews, 98 U. S. 621; Fritts v. Palmer, 132 U. S. 282; Ditch Co. v. Zellerbach, 37 Cal. 543. CORPORATIONS ULTRA VIRES CONTRACT SURETY. A. contracted with a county to furnish water supply. B. signed A.'s bond as surety. The county paid the contract price in advance and A. refused to perform, on the ground that the contract was ultra vires. Held, (1) A. is liable to the county on a quantum meruit for the consideration so paid; (2) B. cannot be held as surety for this liability. Edwards County v. Jennings, 33 S. W. Rep. 585 (Tex.).

It is well settled in many jurisdictions that where one party to a contract has performed and the other party repudiates and sets up the defence of ultra vires, the party so repudiating is liable on a quantum meruit. See R. R. Co. v. Keokuk Co., 131 U. S. 389. The principal case is interesting as bringing out very clearly the nature of this liability. It results from the invalidity of the contract, and is not in any sense grounded on the contract itself. Therefore the surety whose liability was only on the contract was not bound. The rule that a surety will not be held beyond his original liability is elementary. See opinion of Judge Story in Meller v. Stewart, 9 Wheat. 680.

EQUITY CONVEYANCE IN FRAUD of IntendeD HUSBAND. — A., ten days before her marriage to B., voluntarily conveyed her real estate to C. without the knowledge of B. A child was born and A. died. C. conveyed to D., who conveyed to the child, both deeds reciting a nominal consideration. Held, such conveyances were in fraud of the marital rights of the husband, and void as to him. Therefore he is entitled to his curtesy. Leary v. King, 33 Atl. Rep. 629 (Del.).

Before the modern Married Women Acts the doctrine was universal that a voluntary secret conveyance by either husband or wife during the engagement and before marriage was a fraud on the marital rights of the other, and void to that extent. Strathmore v. Bowes, Ves. Jr. 22; see also collection of authorities in 1 Wh. & T. L. C. 317. Under the modern statutes the courts have shown no disposition to alter the doctrine, and the rule remains substantially the same. Duncan's Appeal, 7 Wright, 67; Beere v. Beere, 44 N. W. Rep. 809 (Ia.); Murray v. Murray, 13 S. W. Rep. 244 (Ky.); Ferebee v. Pritchard, 16 S. E. Rep. 903 (N. C.).

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EQUITY UNAUTHORIZED USE OF PUBLIC FUNDS — ATTORNEY GENERAL ONLY CAN ENJOIN. By statute an appropriation was made for the erection of an insane asylum and defendants were thereby appointed as commissioners to locate and build the asylum. One Taylor filed a bill in equity in the name of the State as plaintiff, alleging that this statute was unconstitutional and that the expenditure of the State's money in the erection of the asylum was therefore unauthorized. The bill prayed that defendants be enjoined from expending the appropriation. Held, that equity has no jurisdiction to interfere. State v. Lord, 43 Pac. Rep. 471 (Ore.).

The decision is handed down in a lengthy but interesting opinion by Wolverton, J. He supports the result on several distinct grounds. The most satisfactory of these grounds appear to be that the Attorney General does not appear as a party to the bill; that the bill must therefore be taken as if filed in the name of Taylor; that on the allegations of the bill no property right of Taylor's will be infringed by the proposed expenditure; that the Attorney General is the only proper party to ask an injunction against an unauthorized use of public funds; that the bill does not therefore disclose any ground on which equity can take jurisdiction at the instance of Taylor. The opinion goes on to consider under what circumstances equity will take jurisdiction of a bill for an injunction filed by the Attorney General in behalf of the State.

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EQUITY - WRONGFUL CONVEYANCE BY TRUSTEE- RIGHTS OF PURCHASER AFTER PARTIAL PAYMENT. This was a bill by a cestui to recover land wrongfully conveyed by the trustee to defendant. Defendant claimed an indefeasible title as purchaser for value without notice. It appeared that part of the purchase money had been paid before notice. The court directed that defendant should convey. Held, that this was correct, since defendant, to insist on his right to retain the legal title as security for the money paid in good faith, should have claimed this in his answer. Webb v. Bailey, 23 S. E. Rep. 644 (W. Va.).

While it is too late to contend that a purchaser in a case like this should have an indefeasible title, still, as the court admits, he has an equity pro tanto for money paid before notice. Perry on Trusts, § 221. Under the modern doctrine one seeking to recover land wrongfully conveyed by a trustee must allege in his bill that defendant is not a bona fide purchaser for value. Moloney v. Rourke, 100 Mass. 190. How then can it be said plaintiff was entitled to the relief the court has given him in the principal case when it clearly appears defendant has rights as a bona fide purchaser for value? The rights of a bona fide holder of a bill or note under like circumstances would seem to be analogous. Dresser v. Ry. Co., 93 U. S. 92.

EVIDENCE-ATTEMPT AT MODIFICATION ON A NEW TRIAL. - On a new trial the evidence of the plaintiff's witnesses was changed with the apparent purpose of avoiding the decision of the appellate court. Held, the evidence of the witnesses at the former trial is to be taken as the fact. Williams v. D. L. & W. R. R., 36 N. Y. Supp. 274.

It would seem to be plain law that when a new trial is ordered in general terms the issues of fact are again open for determination upon the evidence adduced. Hidden v. Jordan, 28 Cal. 301. It does not clearly appear in the principal case that the witnesses at the two trials were the same persons, but if so the discrepancies in their testimony would merely serve to impeach their credibility. Chamberlayne's Best on Evidence, 634.

EVIDENCE-PAROL EVIDENCE.-A., B., and C., nephews of one X., since deceased, occupied certain lands belonging to X., executing a lease for two years, which was extended from time to time. After the uncle's death, the nephews set up against certain devisees an oral agreement made with them by X. that the lands should be theirs at his death. There were provisions in the lease seemingly inconsistent with such an agreement, particularly in the last extension, which apparently gave X. power to sell. Held, the court is competent to reconcile on a reasonable basis these inconsistencies; and on the whole there is sufficient evidence of the parol portion of the agreement to justify the granting of specific performance. Jenkins, J, dissenting. Harman v. Harman, 70 Fed. Rep. 894.

The case defines the extent of the rule allowing parol evidence when an entire contract is originally verbal and a part only is reduced to writing, namely, that the parol portions of such an agreement must be made out clearly and satisfactorily, and must not contradict the written portion. For a statement of the rule, see 1 Greenleaf, Evidence, 284a (13th ed.); Ballston Bank v. Marine Bank, 16 Wis. 120, 136.

EVIDENCE-PAROL EVIDENCE RULE. The plaintiff was tenant to the defendant under a written lease, and brings this action for injury from non-repair of house. Parol evidence was offered to show that in addition to the terms of the written contract the defendant had undertaken to repair the tenement. This evidence was rejected. Held, that no attempt was made to vary the written contract, but the evidence offered tended merely to establish a collateral stipulation concerning the same subject matter, and should have been admitted. Hines v. Wilcox, 33 S. W. Rep. 914 (Tenn.). ̧

The exception to the "parol evidence rule" recognized in this case is well established. Greenleaf, Evidence, § 284a, note b; Best's Evid., § 226 A, and cases cited. The collateral contract should be very distinctly collateral. Previous decisions, however, have gone as far as the present in this respect. Ayer v. Bell Mfg. Co., 147 Mass. 46, and cases referred to above.

GIFT OF GROWING CROPS DELIVERY.-A life tenant of certain land gave plaintiff by parol a growing crop of corn. Before the crop was ripe, the life tenant died, and the remainderman conveyed his interest in the land to the defendant. Plaintiff brings an action to enjoin defendant from appropriating the corn crop to her use. Held, that life tenant could dispose of growing crops by gift, and his gift to plaintiff was valid. Shaffer v. Stevens, 42 N. E. Rep. 620 (Ind.).

It is well understood that a gift, unaccompanied by actual or constructive delivery of the property given, is not valid. In Noble v. Smith, 2 Johns. (N. Y.) 52, Chief Justice Kent decided that growing corn was susceptible of delivery only by putting the donee in possession of the soil, and that anything less than this left the gift ineffectual.

It would seem, therefore, in the principal case, that the growing corn passed to the life tenant's executor (Taylor, Landlord & Tenant, § 534), and that the plaintiff had no interest in it.

JUDGMENTS-RES ADJUDICATA. - The defendant was arrested and an order of deportation issued under the Chinese Exclusion Act. She had previously been arrested and discharged on habeas corpus proceedings. Held, that though the discharge was obtained by perjury and a fraudulent writing, it was decisive of the present case, and the order of deportation must be reversed. U. S. v. Chung Shee, 71 Fed. Rep. 277.

This is sound, and in accord with previous decisions. Collateral impeachment of a judgment in habeas corpus can be made only on the ground of want of jurisdiction. Freeman, Judgments, § 619. Judgments in general are not subject to collateral attack by parties on the ground set forth in this case. See Freeman, § 334, and Wells's Res Adjudicata, Chap. I. Sec. 9.

LIFE INSURANCE-Rights of BENEFICIARY. By statute the beneficiary in a life policy is entitled to the proceeds of the policy, not exceeding $10,000, free from the claims of creditors of the insured, though the premiums were paid by him. Held, that a man's wife, the beneficiary in several policies maintained by him, may retain the proceeds, though it turns out his estate is bankrupt and the proceeds exceed $10,000, since it did not appear that he paid premiums after bankruptcy. A policy payable to a beneficiary is not part of the estate of the person who pays the premiums. Jones v. Patty, 18 So. Rep. 794 (Miss.).

The decision is in accord with the weight of authority that the beneficiary named in a policy has a vested right with which the insured cannot interfere. Pingrey v. Ins. Co., 144 Mass. 374, I HARV. LAW REV. 156; Garner v. Ins. Co., 110 N. Y. 266, 2 HARV. LAW REV. 239; Bliss on Life Ins. § 318; Beach on ins. § 602. But see 17 Western Jurist, 297. This seems the better view. It is difficult to say just what the nature of this right is because of the confusion on the subject of the rights of beneficiaries in contracts. It is not a trust, since there is no res held in trust, and yet it has elements similar to a trust. There is a difficulty, however, when premiums are paid by a bankrupt. Even without a statute it would seem that a reasonable provision may be made for his family by a bankrupt. Central Bank v. Hume, 128 U. S. 195; McCutcheon's Appeal, 99 Pa. St. 133. Cf. Stokes v. Coffey, 8 Bush, 533.

MORTGAGE DEFECTIVE RECORD OF INSTRUMENT. A mortgage left at the recorder's office is to be regarded as recorded from that time, in spite of the fact that it is actually recorded in the wrong book. Farribee v. McKerrihan, 33 Atl. Rep. 583 (Pa.). This may be regarded as the settled doctrine in Pennsylvania since the case of Glading v. Frick, 88 Pa. St. 460, which overruled Luch's Appeal, 44 Pa. St. 519, going back to the case of M'Lanahan v. Reeside, 9 Watts, 511. The rule may seem harsh on a purchaser, but that the owner of land should suffer for the negligence of the recorder seems equally hard. Many instruments may be wrongly recorded in the absence of negligence, as where they appear to be deeds, but are in fact mortgages. Should they be held unrecorded until after some court has passed on their character, and so enabled them to be entered on the right book? What if the court then reverses its decision? Must the owner wait till then before he can rely on the record? He has done all that is required of him when he deposits the deed in the hands of the recorder. That is all the statute demands of him. Of course, if it exacted not only a recording, but a recording in such and such a book, a different decision might be reached.

PATENT LAW-GENERIC AND SPECIFIC PATENTS.-The issue by the patent office of a specific patent covering part of an invention for which an application is pending in the office is not an anticipation of the broader patent when it is issued. Thomson-Houston Electric Co. v. E. & H. Ry. Co., 71 Fed. Rep. 396. See Notes.

PERSONS MARRIAGE AFTER DIVORCE-VALIDITY OF PROHIBITED MARRIAGE. -Held, that where, under a statute, the decree of divorce prohibited the offender's marrying again, a marriage in spite of this is not void, there being no nullity clause in the statute. Crawford v. State, 18 So. Rep. 848 (Miss.).

Being res nova in Mississippi, the court avowedly adopts this view against the weight of authority. It examines the nature of the marriage contract, and finds strong grounds of public policy for holding such marriages valid when the statute will permit. The tendency of the courts to do this is pointed out in the cases that have arisen under statutes regulating the manner of solemnizing marriages. See Bishop, Mar., Div. & Sep., §§ 449, 698, 707. On the other hand, the Supreme Court of Vermont in the recent case of Ovitt v. Smith, 33 Atl. Rep. 769, holds such a marriage void, on the ground that a marriage contract, like any other contract, is void when prohibited by law.


Held, that a pledgee, who repledges for an amount greater than the pledgor's debt the goods intrusted to him on the contract of pledge, is guilty of conversion. The pledgor has an immediate right of action in trover without tendering payment of the debt. Richardson v. Ashby, 33 S. W. Rep. 806 (Mo). See NOTES.

PROPERTYBUILDING HIGH FENCE-MALICE. A. and B. owned adjoining lots. A.'s house was built on the boundary line. B. on his own land erected a high fence so as to completely shut off the light and air from the windows of A.'s house. B. acted purely from malicious motives. Held, A. had no remedy at law or in equity. Letts v. Kessler, 42 N. E. Rep. 765 (Ohio).

The case is interesting as an extreme application of the rule that an act legal in itself does not become illegal because actuated by a malicious motive. This rule is sustained by the great weight of authority, especially in cases where the act is a malicious use of a property or contract right. Stevenson v. Newnham, 13 C. B. 285 (Eng.); Chatfield v. Wilson, 28 Vt. 49. Chesley v. King, 74 Me. 164, is contra, but its authority is greatly diminished by the decision in Heywood v. Tillson, 75 Me. 225. Bartlett v. O'Connor, 36 Pac. Rep. 513 (Cal.), contra, is ill considered and entitled to little weight.

The civil law, in cases of adjoining owners, allowed an action for the malicious use of property rights. D. 39, 3, 1, 12 (Ulpian). The Scotch and German courts have followed the civil law, and are therefore opposed to the common law rule. In Massachusetts there is a statute giving a remedy in case of malicious erection of fences. St. 1887, c. 348.

PROPERTY - Dedication of STREET. - The plaintiff sued for a trespass by defendant company in laying gas pipes on certain land of his. The defendant claimed that the land had been dedicated as a public street, and offered in evidence a deed by plaintiff conveying adjoining land and reserving the land in question as that piece "lying within the lines of Bates Street as laid out upon the city plan." Held, that such a plotting did not amount to an actual dedication, nor was the plaintiff estopped to deny any public right of way over the land. Patterson v. People's Natural Gas Co., 33 Atĺ. Rep. 575 (Pa.).

This decision seems undoubtedly correct. A parol dedication to the public must be more than prospective to have any effect. Cincinnati v. White, 6 Peters, 431. The reference to this land as a street in the deed did not give rise to any public right of way. Leigh v. Jack, 5 Ex. Div. 264.

PROPERTY-RIPARIAN RIGHTS ACCRETION. - Plaintiff owned a farm on the east bank of the Missouri River. An island formed in the east half of the river and opposite plaintiff's farm. By accretion to the island the river channel between the island and plaintiff's farm was gradually choked up, and finally the entire body of the Missouri flowed through what had formerly been the western channel. Held, that a riparian owner on the Missouri owns the soil to the river's edge only, and not to the thread of the stream; that consequently plaintiff's western boundary was not affected by the closing up of the eastern channel. Perkins v. Adams, 33 S. W. Rep. 778 (Mo.). There is a conflict of authority as to whether a riparian owner on the great inland rivers owns to the thread of the stream or only to the water's edge. Kent's Comm., 12th ed., Vol. III. pp. *428-*431. A long line of decisions has firmly established the latter doctrine in Missouri. It follows as a consequence of this doctrine that an island which forms in such a river does not become the property of the riparian owners. In the principal case as long as any part of the Missouri could be said to flow to the east of the island, plaintiff's claim was limited to the eastern edge of the eastern channel. At some particular moment the entire body of the Missouri began to flow through what had been the western channel. Plaintiff could not claim that he, by this sudden change in location of the eastern bank of the Missouri, became entitled to the very appreciable body of land lying between the new location of the eastern bank and its location immediately before the change occurred.

PROPERTY-RULE AGAINST PERPETUITIes - RestrainT ON ALIENATION.— The testator, being in partnership with his son and another, directed that said partnership should continue so long as his son or any of his son's children should desire, the firm to have the use of real estate now occupied, paying rent therefor, and of the tools and other assets comprising testator's share of the capital. Subject to these provisions, he gives all his property, including his share of the partnership income, to a charity; if the partnership ceases for any cause, he gives one fourth of his share of the firm property to his son or his heirs, and three fourths to the charity. Held, that these provisions would make the executor a trustee of that portion of the estate which was part of the firm's capital, so long as testator's son or any of his children should desire, and that this is obnoxious to the rule against perpetuities; that consequently one fourth

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