Page:Harvard Law Review Volume 12.djvu/458

438 438 HARVARD LAW REVIEW. erty would not, as here, fall upon the creditor, but upon the surety, which is clearly a more equitable result. Suretyship — Nature of Defences. — A surety on a note, which on its face showed him to be liable as a principal, filed a bill to enjoin its collection on the ground that time had been given to the real principal. Held, that the suit was properly brought in equity, as the facts show no defence to an action at law. Grier v. Flitcraft, 41 Atl. Rep. 425 (N. J., Ch.). See Notes. Torts — Cemeteries — Trespass. — Held, that one having the right of burial in a lot which is part of a public cemetery, can bring trespass quare clausum /regit against the owner of the fee for a disturbance thereof. Hoff v. Olson, 70 N. W. Rep. 1121 (Wis.). There is but scant authority on this point. The action has been allowed when the trespass was committed by a stranger. Smith v. Thompson, 55 Md. 5. And the princi- pal case has the direct support of one other decision. Bessemer, etc. Co. v. Jenkins, iii Ala. 135. The owner of a lot in a public cemetery is generally regarded, in this coun- try, as having only a license to bury therein to the exclusion of others. Page v. Symonds, 63 N. H. 17. While a court might be justified in allowing the action of trespass to such a licensee against a stranger, on the ground of possession, still, to allow it against the owner of the fee can hardly be reconciled in any way with legal principle. Torts — Deceit — Misrepresentation as to Intention. — The defendant per- suaded the plaintiff to convey land to him on a promise to supply the plaintiff with certain live stock, etc. The defendant did not supply the live stock, and, in fact, never intended to keep his agreement. Held, that an action of deceit will lie. McCready v. Phillips, 76 N. W. Rep. 885 (Neb.). It is well settled that a false represejitation, in order to form the ground for an action of deceit, must be of some past or existing fact. Some jurisdictions hold, contrary to the present case, that a false representation as to a matter of intention, or a promise to perform an act made with the intention not to perform is not a misrepresentation of an existing fact upon which an action of fraud may be founded. Dawe v. Morris, 149 Mass. 191; Farris v. Strong, 48 Pac. Rep. 963 (Colo.). The better opinion seems to be, in accord with the present case, that an action of deceit will lie. In the oft-quoted words of Lord Bowen, in Ed gin gton v. Fitzmaurice, L. R. 29 Ch. D. 459, "the state of a man's mind is as much a fact as the state of his digestion," and a misrepresenta- tion as to this state of mind is, therefore, a misstatement of an existing fact. Swift v. Rounds, 19 R. I. 527; Stewart v. Emerson, 52 N. H. 301. Trusts — Fraud by Agent — Statute of Fraxjds. — Defendant orally agreed to act as agent for plaintiffs to purchase certain land in their name. He, however, had the conveyance made out to himself, paid for it with his own money and denied the agency. Held, that defendant is liable to plaintiffs as trustee ex maleficio. Halsell v. Wise County Coal Co., 47 S. W. Rep. 1017 (Tex., Civ. App.). There is much authority holding that the defendant is not liable on these facts, on the ground that the trust is created by the agreement of agency, and so is within the section of the Statute of Frauds requiring declarations of trusts in land to be in writing. Burden v. Sheridan, 36 Iowa, 125; Nestal v. Schmid, 29 N. J. Eq. 458. The result in the principal case seems more just and to be reached by sounder reasoning. Agency, though created by an agreement, is properly a relation or status, which, for a particular purpose, is fiduciary, and involves the devotion of the agent to his principal's interests. An abuse by the agent of this fiduciary relation is a fraud on his principal, and renders him liable for the proceeds of his wrongful act as a constructive trustee. This trust, then, really results by operation of law, and so is not within the Statute of Frauds. Browne, Statute of Frauds, § 96; Winri v. Dillon, 27 Miss. 494; Jenkins v. Eldredge^ 3 Story, 181, 290. REVIEWS. A Preliminary Treatise on Evidence at the Common Law. By James Bradley Thayer. Boston: Little, Brown & Co. 1898. pp. xxxvi, 636. It is a bold thing to say of a book that it expresses what has not been said before; but two things Professor Thayer emphasizes which before