Page:Harvard Law Review Volume 12.djvu/377

357 RECENT CASES. 357 Property — Prescription — Highways. — Held, that the uninterrupted adverse use of a private road by the public for twenty years constitutes it a highway. Blumen- thai V. State, 51 N. E. Rep. 496 (Ind.). It is well settled law that the public may acquire a right of way by prescription. Sprow V. Boston tSr" Albany R. R. Co., 16^ Mass. 330 ; Blanchard v. Moulton, 63 Me. 434. This is often put on the ground that adverse use for a certain period, varying in differ- ent jurisdictions, raises a conclusive presumption of a dedication of the road by the original owners and of an acceptance by the public authorities. Fitchburg R. R. Co. v. Page, 131 Mass. 391 ; Reed v. Northfield, 13 Pick. 94. It would seem more sensible, however, to base this rule of prescription on an analogy to the Statute of Limitation-*, as is now b»ing generally done in this country. Tracy v. Atherton, 36 Vt. 503 ; Wallace v. Fletcher, 30 N. H. 434. Quasi Contracts — Mistake of Law. — Plaintiff, as executor, paid a legacy to an adopted child, erroneously believing her to be entitled to it by law. On discovering his mistake, plaintiff sued the child's guardian for the money. Held, that he cannot recover. Phillips v. McConica, 51 N. E. Rep. 445 (Ohio). While money paid under a mistake of fact can generally be recovered, this case holds that there can be no such recovery when the mistake is one of law. The reason given for this distinction, namely, that ignorance of the law excuses no one, seems unsatis- factory, for the plaintiff does not ask to be excused for having injured any one, but merely that the defendant shall not be allowed to make an unjust gam out of the plain- tiff's mistake. Where the mistake is one of fact, recovery is allowed because it is mani- festly inequitable for the defendant to keep the money. This reason evidently applies just. as strongly when the mistake is one of law, and there are a few cases supporting this view. Mansfield -v. Lynch, 59 Conn. 320; Culbreath v. Culbreath, 7 Ga. 64. The great weight of authority, however, supports the principal case. People y. Foster, 133 111. 496; Vanderbeck v. Rochester, 122 N. Y. 285; Carson v. Cochran, 52 Minn. 67. Statute of Frauds — Affirmative Defence. — Held, that the Statute of Frauds is an affirmative defence. Barnes v. Black Diamond Coal Co., 47 S. W. Rep. 498 (Tenn., Sup. Ct). Held, that the Statute of Frauds is available under the general issue. Hillman v. Allen, 47 S. W. Rep. 509 (Mo.). Until the Judicature Acts it was uniformly held in England that the general issue raised this defence, and some American courts are in accord. Reade v. Lamb, 6 Ex. 130; Birchell v. Master, 36 Ohio St. 331 ; Metcalfv. Brandon, 58 Miss. 841. To sup- port these decisions it is argued that the statute merely introduced a new rule of evi- dence, and that the defendant, under a denial of the contract, may object to parol proof of it. But in that case a memorandum, made after action begun, would be good evidence, whereas, in fact, it is inadmissible. Bill v. Bament, 9 M. & W. 36. By the weight of American authority the statute must be pleaded affirmatively. Crane v. Powell, 139 N. Y. 379; Citty v. Manufacturing Co., 93 Tenn. 276. This view is sup- ported on the ground that the enactment of the statute did not affect the nature of a contract, but only prescribed that such contracts as came within its provisions could not be enforced unless the statute was complied with ; that, therefore, proof of the contract shows a legal right in the plaintiff which the defendant must prove is unen- forceable. The result thus reached is believed to be correct. Torts — Action for Death — Pleading. — Action by an administrator for negligently causing the death of intestate, who, as defendant's servant, was incurring, at the time of the injury, an extraordinary danger of the employment. Held, that it is not necessary for plaintiff to allege and prove that decedent was unaware of the danger, because the action is based on a statute in which no mention is made of contributory negligence. Lexington, etc. Mining Co. v. Stephens' Admr., 47 S. W. Rep. 321 (Ky.). The court recognizes the rule, previously laid down in Kentucky, that in an action by a servant against his master for an injury not resulting in death, and arising from an extraordinary risk of the employment, an allegation that the servant was unaware of the danger is necessary to a complete statement of his cause of action. See Bogen- schutz V. Smith, 84 Ky. 342. The ground of distinction made in the principal case has not been generally adopted by the authorities. Tiffany, Death by Wrongful Act, §§ 63, 181. It would seem that on principle the same rules of pleading should apply, whether the action be brought by the servant himself in case he survives the injury, or by his administrator after death, inasmuch as both actions are founded on a viola- tion of the same duty owed by the master to the servant at the time of the injury. Torts — Imputed Negligence — Parent and Child. — The plaintiff, a child under the age of four, was injured by the negligence of the defendant, the negligence of the parent, in allowing the child to wander in the streets alone, contributing to the