Page:Harvard Law Review Volume 10.djvu/413

387 RECENT CASES. 387 of a common law debtor, is indicated by the fact that he may be indicted as an em- bezzler. Furthermore, it would seem clear that, if the officer became bankrupt, and the public funds were traceable, the organization to which he was responsible would have a specific claim on the funds and would not come in as a general creditor. The court, in the principal case, leaves open the question as to the legal result were the orficer prevented from responding by the act of God or the public enemy, intimating, however, that in this case he would be exonerated. There is thus suggested a very strong analogy between a public officer and a common carrier. Suretyship — Right to Reserve Fund. — A building agreement between the United States and a contractor provided for the retention of ten per cent of the con- tract price until the completion of the work. After beginning the work, the contractor agreed to deliver this reserve to the plaintiff bank, because of advances then made by it for the purpose of going on with the work. The contractor defaulted, and his surety completed the contract. Held, that the lien of the bank was inferior to the rights of the surety in the reserve. Bank v. U. S., 17 Sup. Ct. Rep. 142. The case presents an interesting application of the doctrine that the reserve is as much for the indemnity of the surety as of the party to whom the guaranty is given ; Brags; x.Skain, 49 Cal.' 131, and this equity of the surety arose at the time of his entering into the guaranty. The assignee of the contractor could acquire only such rights as the contractor had, and these were subject to the rights of the United States and the surety in the reserve. To hold the assignee entitled to the fund would be to deprive the surety of the indemnity of this reserve, and so alter the terms of his guaranty, thereby releasing him. Calvert v. Dock Co., 2 Keen, 638. Torts — Contributory Negligence in Mitigation of Damages. — fleld,ii2it where the defendant's negligence was the direct or proximate cause of the plaintiff's injury, contributory negligence on the part of the plaintiff will not prevent a recovery, but will be considered in mitigation of damages. Southern By. Co. v. Pugh, 37 S. V. Rep- 555 (Tenn.). This case apparently represents the established rule of the Tennessee courts. See Nashville By. Co. v. Smith, 6 Heisk. 174. The doctrine seems to be essentially the same as that of "comparative negligence" and of similar rules adopted in Georgia and other American jurisdictions. See Beach on Contributory Negligence, 2d ed., §§ 72- 99; Cooley on Torts, 2d ed., 813-816; Rev. Stats, of Florida (1892), 764, 1008. The Illinois courts have, however, in recent divisions, discarded their anomalous doctrine of comparative negligence. 8 Harvard Law Review, 279, 356; 2 Jaggard on Torts, 979. It seems unfortunate that the courts in Tennessee do not also see their way clear to the adoption of a better rule, such as that of the prevailing common law rule repre- sented by Neal v. Gillett, 23 Conn. 437. Unquestionably there is something to be said in favor of the rule in the principal case (Beach on Contributory Negligence, § 95), but it would seem that practical considerations, such as the impossibility oftentimes of equitably apportioning the damages in common law courts, should lead to its abandonment. Torts — Master and Servant — Relief Asscciation. — In an action by a servant against a railway company to recover damages for an injury through negli- gence, held that a plea that the servant accepted benefits as a member of a relief association, organized by the company, under the agreement that he thereby relin- quished his right of action, does not constitute a good defence, since it does not sufficiently appear that his contract was not voidable for want of consideration. C, B. <5r^ Q. Baihvay Co. v. Miller, 76 Fed. Rep. 439. The court go on the assumption that the stipulation in question is not opposed to sound public policy; and this would seem to be correct, inasmuch as the employee retains, until after he sustains the injury, the right to elect whether he will sue the company for negligence or acceijt benefits from the association. Leas v. Penn Co., 37 Fed. Rep. ^zt,', Johnson w. Phil. &> Bead. B. B., 163 Pa. 127. But in cases of this character, where the contract invoked as a defence lies close to the line of public policy, it would seem doubly necessary that a sufficient consideration to support such a contract should appear with great clearness. Bailroad Co. v. McGraw, 45 Pac. Rep. 383. Torts— Proximate Cause — Injuries from Fright. — Defendant, by negli- gent driving, frightened plaintiff so that she afterward suffered a miscarriage and a long illness, //eld, that no recovery may be had for injuries resulting from flight, caused by negligence of another, where no immediate personal injury is received, and that the negligence was not the proximate cause of the miscarriage. Mitchell v. Bock- ester By. Co., 45 N. E. Rep. 354 (N. Y.). This reverses in a short opinion a long and carefully reasoned decision in the Cir- cuit Court, 25 N. Y. Supp. 744, affirmed by the Supreme Court, 28 N. Y. Supp. 1136.