Page:Harvard Law Review Volume 2.djvu/116

 98 HARVARD LAW REVIEW,

Duress — Equitable. — The plaintiff's son, about to abscond, executed to hit father a conveyance of property to secure liabilities incurred on his account. One of the defendants, W, a justice of the peace, was employed to make the transfers. Soon after the son absconded the defendants obtained a bond and mortgage from the plaintifiF to secure them from loss as creditors of the son. It appeared that the Dond and mortgage were obtained by exciting the fears of the plaintiff, who was a farmer over 70 year^ old, in distressed circumstances, through the representa- tions of W that, unless the plaintiff secured the defendants, the transfers by the son to him would be set aside as fraudulent. Neld^ that the bond and mortgage were void because of undue influence. The relation between W and the plaintiff — that of confidential adviser to effect the transfers — required W to act in good faith, without using the information obtained through that relationship to the dis- advantage of his employer. '*This principle holds good wherever fiduciary rela- tions exist, and there has been a conndence reposed which invests the person trusted with an advantage in dealing with the person so confiding." Fishtr v. Bishop^ 15 N. E. Rep. 831 (N. YJ.

Estoppel — Judgment. — Defendant held certain notes aninst plaintiff. They entered into an executory agreement for a compromise, whereby less than the face value of the notes was to be accepted by the defendant. Before this agreement was carried out defendant brought suit on the notes, and plaintiff defaulted. Plaintiff now sues on the agreement. Held^ that the judgment on the notes is no bar to this action. Where a defence constitutes cause of action it need not be set up as a defence. Hunt V. BrawHy 15 N. £. Rep. 587 (Mass.).

Evidence — Character. — In an action on a note, where the defence was that the note was given for intoxicating liquors sold to the defendant, at a time when

{>laintiff knew that the defendant was a person of intemperate habits (such sale by aw of Alabama being illegal), it was fuU^ that evidence of the general reputation of the defendant was inadmissible to prove that he was a man of intemperate habits, though admissible to show the plaintiff's knowledge of that fact. Collins s.Jon^s, 3 So. Rep. 591 (Ala.).

Evidence — Criminal Law — Admissibility of Former Crimes to show Motive. — The defendant was indicted for bribine a New York alderman to erant a franchise to the Broadway Surface Railway. Heidi that evidence that the de^ndant had the year previously attempted to bribe the clerk of the New York Assembly to alter a bill then pending before the Assembly, so that its terms would authorize the building of a surface railway on Broadway, was inadmissible to show motive in the defendant. This is merelv character evidence, too remote and too dangerous. People V. Sharpy 10 Crim. Law Mag. 200 (N. Y.).

This is an extreme case. "Another act of fraud is admissible to prove the fraud charged only where there is evidence that the two are parts of one scheme or plan of fraud, committed in pursuance of a common purpose." Jordan v. Osgood^ 109 Mass. 457. The principle that on trial for one crime evidence of another crime is admissible to show motive when the two are parts of one plan, actuated by a common purpose, has been approved in the recent Mass. case of Com. v. Robinson^ not yet reported- The two crimes in People v. Sharp were part of one scheme, committed in pursuance of a common purpose, — the getting a Broadway surface railroad. The first attempt went directly to show the existence of this mo- tive in Sharp's mind, and the streng^th of that motive. Shaffner v. Com.^ 72 Pa. St., limiting this doctrine to cases where, previously to the first crime, the two crimes were contemplated in the defendant's mind as parts of the same plan or transaction, has been virtually overruled by Goersen v. CVwi ., 99 Pa. St. 388 ; s. c. 106 Pa. St. 477.

Evidence — " Edmunds Law " — Cohabitation with Legal Wife. — In a trial under the " Edmunds Law," which provides ** that if any male person cohabits with more than one woman, he shall be guilty of misdemeanor,'* the defendant denied cohabitation with his legal wife, A, but confessed cohabitation with B. Held^ it is a conclusive presumption that a husband cohabits with his legal wife if he contributes towards her support and lives within her vicinity. U. S. v. Ham's, 17 Pac. R. 75 (Utah).

Evidence — Fresh Complaint. — In a prosecution for rape, the defendant, on cross-examination, can ask the prosecutrix to give the particulars of the fresh com- plaint; and when this is done to impeach the testimony of the prosecutrix, the State can introduce evidence to corroborate her testimony. Barnett v. Staie, 3 Sa Rep. 612 (Ala.).