Page:Harvard Law Review Volume 1.djvu/313

 ——A devised land to B, but if he died without issue to C and his heirs. B conveyed to D. D, becoming alarmed lest B should die without issue, represented to the plaintiff’s mother that B had a fine property left to him, which would go to the heir, and thus induced her to marry B. The plaintiff, the sole issue of the marriage, filed a bill against D for a conveyance of the land. Held, equity will treat D as a constructive trustee for the plaintiff, and compel him to convey. Piper v. Hoard, 13 N.E. Rep. 626 (N.Y.), affirming the decision of Supreme Court.

The Court go upon the ground that one who makes a representation as to the estate of the proposed husband, forming an inducement to the marriage, is bound to make it good in the manner represented. The plaintiff, being the issue, is considered to have all the rights of her mother, especially since, if the representation had been true, all the property would have gone to the plaintiff. Upon legal principles the result reached by the Court seems somewhat extraordinary. No authority is cited that in the least sustains the proposition, that D’s misrepresentation about his property to the mother made him a constructive trustee for the mother, and so for her heir. Her remedy was at law for deceit. It may be possible to conceive that D’s fraud was an equitable tort toward the unborn issue, but the right to the kind of relief here given by no means follows.

——“Letter-press copies are but copies, and cannot be introduced if the originals be unaccounted for, and it is not shown that they could not have been produced at the trial.” State v. Halstead, 35 N.W. Rep. 457 (Iowa).

—In an action on a promissory note, evidence that the defendant was not to pay except from sales of a patent washing-machine, and that that machine was so worthless that nothing was realized from such sales, is not admissible. De Long v. Lee, 34 N.W. Rep. 613 (Iowa). See also Mason v. Mason, 34 N.W. Rep. 208 (Iowa); Appeal of Potts, 10 Atl. Rep. 887 (Pa.); ''Merchants’ Exch. Bank v. Luckow'', 35 N.W. Rep. 434 (Minn.).

——Defendant agreed to pay $1,000 for a page advertisement in a certain publication, on a guaranty that 100,000 copies would be mailed. In an action for the money it was proved that the full number of copies was delivered to the Brooklyn post-office, and that postage was paid at second-class rates. But it was also brought out that the publication was not entitled to transmission as second-class matter, and it was decided that performance was not made out, since there is no presumption that matter accepted at a post-office reaches its destination, unless the postal laws are complied with. Brundage v. Sheffield, 32 Daily Register, 1117 (New York City Court).

——On grounds of public policy a wife is not a competent witness for or against her husband in criminal cases in the United States Courts. United States v. Jones, 32 Fed. Rep. 569.

A note states modifications of this common-law rule, which are recognized in many jurisdictions in this country.

—A tenant who accepts a new lease does not thereby lose his right to remove fixtures unless the new lease expressly covers them, thus showing that such was the intention of the parties. ''Second Nat. Bank v. Merrill'', 34 N.W. Rep. 514 (Wis.). See contra, Loughran v. Ross, 45 N. Y. 792; Watriss v. ''First Nat. Bank'', 124 Mass. 571.

—A mortgagee was fraudulently induced to assign the mortgage on the supposition that she was merely extending the time. Held, that nothing passed by the assignment, even to an innocent holder. Herchmer v. Elliott, 23 Can. Law Jour. 4l4 (Ch. D. Can.).

——The keeper of a betting stand decamped with the money that he had taken in. He was prosecuted for stealing and convicted. A point was reserved as to whether there was any evidence of stealing to go to the jury. The conviction was affirmed, the Court holding that there was evidence of a preconcerted design to get the money by a trick, and, as the owners never intended to part with it except in a certain event which did not happen, the offence was larceny. Regina v. Buckmaster, 22 Law Jour. 166 (C.C.R.).

——The furniture in a hotel was sold and mortgaged back to secure the unpaid purchase