Page:Harvard Law Review Volume 1.djvu/264

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.

allowed. Union Bank of Lower Canada v. Bulmer, 10 Legal News, 361 (Supreme Court of Canada).

The original note being good against the firm, the renewal of it is partnership business.

PledgeDischarge.—A made a note payable to B or bearer, secured by a real mortgage. B delivered it before maturity to C as collateral security for a pre-existing debt of larger amount. A, not knowing of the transfer, paid the note in cotton to B, who had no authority to receive payment. B converted the cotton into money and remitted it in a check for a larger sum to C. C, in ignorance of how the money was obtained, credited it to B on his debt. A large balance being still due from B, C commenced statutory proceedings against A to foreclose the mortgage, to which A pleaded payment. Held — The debt from A to C was discharged. Coleman v. Jenkins, 3 S. E. Rep. 444 (Ga.).

The Court went on the ground that if A had paid C instead of B, C would have been in exactly the position in which he now is, only he would have had to credit A as well as B. This would seem rather a moral than a legal reason why C should not prevail. When B received the cotton without authority, the legal title passed to him subject to an equity in favor of A. Had B paid this cotton on his own account to C, C would have taken the title free from all equities as a purchaser for value without notice, the value being the giving up pro tanto of his claim against B. That C could have retained the cotton, see Baldwin v. Burrowes, 47 N. Y. 199; Thatcher v. Craig, 113 Mass. 291; Pope v. Lowitz, 14 Bradw. 96 (Ill.). The case of payment of money by B is even stronger, for C could have kept it if B had stolen it from A. C has the right to say, “Having no notice, I dealt with this money as B’s own, and credited it in discharge of his obligation; I have never consented to discharge my security; it is as if B had defrauded A and paid me the money.” A’s obligation, at his peril, was to pay the note to the bearer, and he was guilty of gross negligence in not requiring his note from B. Under the plea of payment he was allowed to show an unauthorized payment to B, who commingled the proceeds in a larger sum, which he paid to C on his own account. If A’s note was a perfect obligation at law, how could equity refuse to foreclose the mortgage securing it?

Promissory NoteIllegalityGambling.—Several persons were playing at dice for money. In the course of the game one of the players borrowed of another various sums, amounting in all to $350. At the close of the game he gave his note for this sum. The lender did not win any of the money. Held—That he could enforce the note. Corbin v. Wachhorst, 15 Pac. Rep. 22 (Cal.).

This decision seems contrary to sound public policy. That the law is otherwise, save in New York, see Greenhood on Public Policy, 94. In Hill v. Spear, 50 N. H. 253, at p. 273, it is said, “ Money loaned to a gambler for the purpose of being staked upon a pending game cannot be recovered.” Corbin v. Wachhorst is not in accord with the more recent English cases, though the American decisions on the analogous cases of a sale made, or of work done, knowing that the property will be used for an illegal purpose, would generally go as far as this case. (Cases collected in 22 Alb. L. J. 405.) For an amusing statement of the modern English law of gaming promissory notes, see 21 Irish Law Times, 668.

Quasi ContractUse and Occupation.—A trespasser who uses land is not liable to the owner for use and occupation, there being no evidence of the relation of landlord and tenant between them. Dixon v. Ahern, 25 Cent. L. J. 344 (Nev.), and note with cases.

Right of WayPrescription.—The lots owned by plaintiff and defendant were separated by a way, the fee in which remained in a former owner of both lots. Successive owners of each lot had used the way in common for more than forty years. The plaintiff brings trespass for interfering with his right of way. Held—two judges dissenting—that it will not lie, since the user proved is not exclusive. Ellis v. Black, 23 Canada Law Journal, 390 (Supreme Court of Canada).

Statute of LimitationsDemurrer.—When it appears on the face of a petition that the claim is barred by the Statute of Limitations, advantage may be taken of it by demurrer, on the ground that it does not state a good cause of action. Merriam v. Miller, 34 N. W. Rep. 625, and note (N.b.).