Page:Harvard Law Review Volume 1.djvu/114

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tion was possible, or the exercise of any other act of ownership, tended to decide whether the sale had been absolute or conditional. Carpenter v. Bank, 10 N.-East Rep. (Ill.) 18.

Consideration. — A claim upon a judgment, made in good faith, is a good consideration for a promissory note, even though the judgment is in fact invalid. Brown v. Ladd, 10 N.-East. Rep. (Mass.) 839.

Constitutional LawAmending Indictment.Ex parte Bain (7 Supr. Ct. Rep. 781). The petitioner, Bain, was indicted for an offence against the laws of the United States. By order of court the indictment was slightly changed, by striking out what seemed to the court a superfluous clause. The trial proceeded and the prisoner was convicted. The prisoner now applies to this court for a writ of habeas corpus, on the ground that the change in the indictment renders the trial void. The petition was granted on the following grounds: The indictment can only be changed by the grand jury who framed it. If it is changed by order of the court or by the prosecuting attorney, it is no longer the indictment of the grand jury. The constitution of the United States provides that “no person shall be held to answer for a capital or infamous offence, unless on a presentment or indictment of a grand jury.” This provision would be of little use if courts could change the indictment to suit the necessity of the case.

Constitutional Law — “Due Process of Law.” — A judgment in personam against a non-resident of a State is unconstitutional and invalid unless there has been a personal service of the writ within the State, or a voluntary appearance of the defendant. Eliot v. McCormick, 10 N.-East. Rep. (Mass.) 705.

Constitutional LawFormer Jeopardy. — An indictment for an offence against a city ordinance is no bar to an indictment under a State law, though the self-same act constitutes the offence in both cases. Kemper v. Commonwealth, 3 S.-W. Rep. (Ky.) 159. See 4 Cr. L. Mag. 79, for a valuable case on this point, and id. 496 for an article relating to it.

ContractParol Evidence. — A receipt “in full of all demands” may, like any receipt, be contradicted by parol evidence that payment was not made as acknowledged; but the statement that the release was to be a discharge in full of all demands cannot be contradicted by parol evidence. Cummings v. Baars, 31 N.-W. Rep. (Minn.) 449.

Contract for Benefit of Third Party. — B agreed with C to furnish him such sums of money as might be necessary to pay C’s current expenses; a creditor of C sued B upon this promise. It was held that though a third party for whose direct benefit a contract is made may sue upon it, and though such a person may be only one of a class, as a creditor, yet this principle gives no right to one who, as here, was only indirectly and incidentally to reap the benefit of the promise. Burton v. Larkin, 13 Pac. Rep. (Kas.) 398. See Fisher v. Martin, 25 N. Y. W’kly Dig. 539; and for a collection of cases on this right of the beneficiary, see 24 Cent. L. J. 112.

Contributory NegligencePassenger in Open Horse Car. — If a passenger, at the invitation or with the consent of the conductor, stands up between the seats of an open horse-car, the seats all being occupied, and is thrown down and injured, in consequence of the rapid driving of the car around a curve, the passenger is not, as a matter of law, guilty of such contributory negligence as will prevent recovery. Lapointe v. Middlesex R. Co., 10 N.-East. Rep. (Mass.) 497.

CorporationImplied Contract. — Where, in an action for a salary by a professor against the trustees of a college, the plaintiff shows that he has performed the services, expecting to be paid, and that he was advertised as a professor in the college catalogue, the corporation is liable for the value of the services, though the board passed no resolution authorizing his employment. Tyler v. Trustees, 13 Pac. Rep. (Or.) 329. “As against individuals the law implies a promise to pay in such cases, and the implication extends equally against corporations.”

EasementNotice. — Where for a consideration A agreed with B, owner of adjoining property, in writing not recorded, that A should have the right to use the wall of B’s building, and after A had erected a frame shop against B’s wall, B’s property passed by successive sales into C’s hands, it was held that A could not replace the frame shop by a brick building, using the support of C’s wall without compensation, the existence of the shop not being