Page:Harvard Law Review Volume 1.djvu/55



DURESS—WHO CAN AVOID.—In an action against a surety on a bail bond duress of the principal cannot be taken advantage of as a ground of defence, no unlawful restraint having been imposed on the surety. Oak v. Dustin, 7 Atl. Rep. (Me.) 815.

MESNE PROFITS—REAL ACTION.—Where a plaintiff brought suit in ejectment, and asked for mesne profits during defendant’s possession, and recovered in the ejectment suit, it was held that the recovery of the profits was based on an implied contract, and not upon the trespass or disseisin, and was, therefore, barred, because the statutory limit as to the former class of actions had expired, though the limit as to the latter class had not. Seibert v. Baxter, 12 Pac. Rep. (Kan.) 934.

FIDUCIARY RELATION.—It is held in Dunn v. Dunn, 7 Atl. Rep. (N. J.) 842, that where an attorney buys from a client a mortgage of which the attorney has had charge, he stands in a fiduciary relation, and must “show affirmatively that the transaction was conducted in perfect good faith, without pressure of influence on his part, with complete knowledge of the situation and circumstances and entire freedom of action on the part of the seller;” and unless this is shown the client may have a reassignment.

RESULTING TRUST TO PAYOR OF CONSIDERATION.—Where a tenant by curtesy and the heirs of his deceased wife agree that, in order to raise money upon the land, partition proceedings shall be instituted, and that one of the heirs shall buy in the property at the sale, and shall then execute a mortgage of the property, and this is done, receipts from the heirs and the tenants being accepted by the master who made the sale as cash in full payment of the price, a resulting trust arises as to the equity of redemption in favor of the tenant by curtesy and the remaining heirs. Donlin v. Bradley. 10 N.-East Rep. (Ill.) 11. This case is in line with the general principles of resulting trusts (Ames Cas. on Trusts, I. 292), the only peculiarity being the method in which the consideration was advanced by the heirs.

CONDITIONAL SALE—SUBSEQUENT PURCHASER.—In Redewill v. Gillen, 12 Pac. Rep. (N. M.) 872, it was held, in an exhaustive opinion, that when an article is sold on condition that it remains the vendor’s property until all the instalments of the price are paid, a purchaser from the vendee, even without notice, can acquire no title whatever. In New York, Wait v. Green, deciding in favor of an innocent purchaser, has been virtually overruled by Ballard v. Burgett; but the later case of Comer v. Cunningham (77 N. Y. 391) seems to have undermined seriously Ballard v. Burgett. Illinois and Kentucky are ranged with Wait v. Green; but elsewhere, including the U. S. Supreme Court, the weight of authority is to the contrary, and, in deference to it, the court in Redewill v. Gillen decided, against their sense of justice, in favor of the plaintiff.

INJUNCTION—ENFORCING CONTRACT OF EXCLUSIVE SERVICE.—In Peperno v. Harmiston (31 Sol. Journ. 154), where the defendant, who was under an agreement to supply certain horses and performers to a circus, threatened to remove his stock, the court refused an injunction to restrain the removal, on the ground that where specific performance cannot be given, an injunction will not be granted unless damages are an inadequate compensation. This they stated to be the principle of Lumley v. Wagner, the leading case (1 DeG., McN., & G. 604). But the decision in that case (by Lord St. Leonards) makes no such distinction, nor does the Vice-Chancellor in the hearing below (5 DeG. & Sm. 485). It is true that the principle is so stated in a leading New York case, Daly v. Smith (49 How. Pr. 150), but not in a well-considered decision by Lowell, J., in 1 Holmes, 253, nor in the majority of cases (20 Am. L. Reg., N. S. 587).