Page:Harvard Law Review Volume 1.djvu/262

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demand notes. (2) The custom of bankers to pay at their banking-houses and not where they find the certificate, as is the case with notes. (3) The analogy of bank-notes, which have repeatedly been held not within the statute.

The weight of authority is probably adverse to Mitchell v. Wilkins. See contra, Birch v. Fisher, 51 Mich. 36 (semble); Lynch v. Goldsmith, 64 Ga. 42, 50 (semble); McGough v. Jamison, 4 Pennyp. (Pa.) 154; Fells Point Inst. v. Weedon, 18 Md. 320; Bellows Falls Bank v. Rutland Bank, 40 Vt. 377; Munger v. Albany Bank, 85 N.Y. 580; Smiley v. Fry, 100 N.Y. 262; Rentchler v. Kunkelman, 17 Bradw. (Ill.) 343; Shute v. Pacific Bank, 136 Mass. 487; Girard Bank v. Bank of Penn., 39 Pa. 92.

Accord, Tripp v. Curtenius, 36 Mich. 494; Brummagin v. Tallant, 29 Cal. 503; Curran v. Witter, 31 N. W. Rep. 705 (Wis.).

For many cases on the subject see “Review of case Citizens’ Bank v. Brown” (Ohio), Chicago Leg. News, Sept. 10, 1887.

ConversionChattel Mortgage.—A gave a chattel mortgage to B with a clause empowering B to sell on default of any condition in the mortgage, and also authorizing him, for further security, to take possession of the chattel at any time. Before the mortgage became due B took possession under the last clause, and having threatened to sell it, A tendered him the amount of the debt and interest, but he refused it and sold the chattel. Trover was brought at once, and allowed. Harder v. Hosp, 34 N.W. Rep. 145 (Wis.).

The Court do not suggest how they support the action without right of possession in the plaintiff.

CorporationCharterLiability after a Lease.—A street-car company by its charter was made liable for all injuries caused by the negligence of its servants in operating the road. The company leased its property to a second company, which agreed to assume all liability, defend all suits, and pay all judgments against the lessor company. The lease was subsequently sanctioned by an act of the Legislature, which did not expressly exonerate the lessor from liability. The plaintiff was injured by the negligence of the servants of the lessee. Held— The lessor could not relieve itself of liability without the consent of the State. A note collects a number of recent cases to the same effect. Breslin v. Somerville Horse R. Co., 13 N.E. Rep. 65 (Mass.).

EasementStreetsTelephone Poles.—The defendant, with the consent of the city of St. Paul, erected poles in front of plaintiff’s lot. The fee of the street was in the plaintiff. The Court below ordered the poles removed, and granted a perpetual injunction. The Chief-Justice being ill, the four remaining judges are equally divided, and the judgment is confirmed. They give no reasons, and say: “We can render no decision which can be deemed to establish the law.” Willis v. Erie Co., 34 N.W. Rep. 337 (Minn.).

Equity JurisdictionBill of Peace.—The plaintiff leased quarry lands from the assignor of the defendant. The assignor, as well as the defendant, used the land as a farm. The defendant commenced to quarry marble. The bill alleged that the quarrying of every stone was a trespass, and, to prevent a multiplicity of suits, asked for an account of the stone taken out and an injunction to restrain future trespssses. Relief granted. Dougherty v. Chesnutt, 5 S.W. Rep. 444 (Tenn.).

In point of jurisdiction this seems a departure from common-law rules. The question of whether or not an act is a trespass is a common-law question, to be determined by a common-law court with a jury. Even in those States where equity and law are united, the question of trespass is submitted to a jury, though a separate action is not necessary. But in Tennessee, where such seems not to be the case, the plaintiff should first have been compelled to establish the fact of trespass at law, and then equity would grant an injunction to prevent multiplicity of suits.

Equity JurisdictionEnforcing Parol Gift of Land.—Equity will enforce specific performance of a parol gift of land, where it is accompanied by possession and valuable improvements on the part of the donee relying on the promise of the donor. Dawson v. McFaddin, 34 N.W. Rep. 338 (Neb.).

Equity JurisdictionRestraining Criminal Prosecution.—An action had been commenced in a State Court to have a brewery abated as a nuisance.