Page:Harvard Law Review Volume 10.djvu/272

246 246 HARVARD LAW REVIEW. as paid iKider a mistake of fact. Riverside Bank v. First National Bank of Shenandoah ^ 74 Fed. Rep. 276. The courts of Massachusetts and New York allow recovery in such cases, but the weight of authority is against it. See, for cases and full discussion. 4 Harvard Law Review, 305. The principal case is undoubtedly right in leaving the loss where it fell without defendant's fault, and in clearly recognizing the fact that certification is as final as the payment of money. The one cannot be rescinded and the other cannot be recovered. Bills and Notes — Forged Indorsement. — The plaintiff deposited a check for collection with the defendant bank. The check was paid by the bank on which it was drawn, but it afterwards turned out that a prior indorsement had been forged, without the plaintiff's knowledge, and the defendant refunded the amount to the drawee. Held, the defendant could apply any fund of the plaintiff afterwards coming into its posses- sion to reimburse itself, although at the time of refunding the money it had not notified the plaintiff of the forgery. Greeti v.' Ptircell Bank, 37 S. W. Rep. 50. (Ind. Ter.) The case is important as involving the point that money paid on a check containing a forged indorsement can be recovered back by the drawee, for unless there was such legal right of recovery the defendant would not have been entitled to charge the plain- tiff, who indorsed to it. That this is the correct view seems evident (see 4 Harvard Law Review, 297, 307), but the Queen's Bench Division has recently reached a directly opposite conclusion. London Bank v. Bank of Liverpool, [1896] i Q. B. 7. See 9 Harvard Law Review, 480. Bills and Notes — Negotiability — Certainty as a Requisite. — A mort- gage contained a provision that if the mortgagor should leave any taxes unpaid for thirty days, such taxes, and the principal and interest of the note accompanying the mortgage, should at once become payable. Held, that the note was non-negotiable on account of uncertainty in the amount payable on it. Brooke v. Struthers, 68 N. W. Rep. 272 (Mich.), See Notes. Carriers — Negligent Delay — Liability for Consequential Damage. — Held, that a carrier is not liable for special damage resulting from delay, caused by negligence after notice, provided he did not know that it might result when he made the contract. Bradley v. Chica^i^o Ry. Cf., 68 N. W. Rep. 410 (Wis.). The obligation to carry does not rest on contract, though the decision in the principal case might give one that impression. The carrier is bound to transport goods though he expressly refuses to take them. On the other hand he owes a duty to shippers only, not to all the world. A breach of it therefore is not a tort. The courts recognize this, and that there is no action specially fitted to enforce the carrier's obligation, by allowing suit in either assumpsit or case. In the principal case there was a breach of the duty to carry with reasonable speed, and when the carrier learns of additional cause for haste he should use corresponding care. If he negligently delays he violates his common law duty. The rule of damages in torts is therefore more appropriate than the rule in contracts. Cases in England and dicta in this country support the principal case, but the recent decisions in England are tending the other way. See 9 Harvard Law Review, 215. Conflict of Laws — General and Particular Domicil. — A, having a domi- cil in Tennessee, went to Texas, which he proposed to make his home. He had in mind, however, no definite place as a local residence, but intended to live from time to time in different parts of the State. Held, that he immediately acquired a domicil in Texas. Marks v. Marks, 75 Fed. Rep. 321. The case is interesting as deciding that a person may have a general State domicil, without being domiciled at any particular place in the State. This doctrine has some- times been denied; Lord Fullerton's opinion in Arnottw. Groom, 19 Sc. Jur. 43, 45. But on principle the status of ^^«<fr«/ domicil would seem entirely permissible under circumstances like those in the leading case. For the two requisites of domicil, the factum and the auimns, the actual living and the intention to remain, are both present. Moreover, an argument in favor of this view is, that the only alternative is to invoke the " constructive " theory, and by a fiction set up a past domicil. Now domicil should be based, as far as possible, on facts rather than on legal fictions. The latter should be resorted to only in a case of necessity. And it is much more in accord with the real facts to regard a man's home as in that place where he is and expects to stay perma- nently, than as in some State in which he formerly resided, but with which he now has absolutely no connection, /n re Craignish, [1892] 3 Ch. 180, 192. The case may become a leading one, as the exact question which it raises seems never to have been decided before, at least in the United States. The current of opinion