Page:Harvard Law Review Volume 2.djvu/309

 RBCBNT CASES. 29I

Is prima facu eTidence of negligence (^Watson v. IVeiks, unreported), the care- less act of a farm servant, causing a farm horse to run away and knock down a Tisitor crossing the farm, does not render the farmer liable to the visitor for any breach of duly. Tolhausen v. Davits^ 57 1*. J, Q. B, 392; noted in 4 Law Quart 488.

See Corby v. Hill^ 4 C. B. N. s. 556, and note, for cases on duty of owner of premises to bare licensees.

Negligence — Imputed Negligence. — The plaintiff was injured by being thrown out of a vehicle driven by a person who had invited her to drive, whose efficiency she had no reason to doubt, and over whom she had no control. Held^ that his negligence was no bar to her recovery against the town for a defect in the highway. Tmvn of KnightsioTtm v. Afusgrovet 18 N. E. Rep. 452 (Ind.).

The court denied the doctrine of Tkorogood v. Bryan^ 18 C. B. 115. The case of The Bernina^ 12 P. Div. 58, 57 L. J. Rep. Q. B. 65, was not cited. See 2 Harv. L. Rev. 140; and see, also, Hoag v. R, R, Co,^ 18 N. E. Rep. 648 (N. Y.).

Negligence — Volenti non fit Injuria. — In an action for negligence against a railway company for injuries sustained by the plaintiff in falling down steps leading to the platform of the railway station, which were in a dangerous condi- tion, it was held that an admission by the plaintiff, on cross-^xamination, that he thought it was dangerous to go down the steps, was not sufficient to entitle the defendants to succeed on the ground that the maxim volenti non fit injuria applied, but that the onus of proof lay upon the defendants to show that the plaintiff "freely and voluntarily, with full knowledge of the nature and extent of the risk be ran, impliedly agreed to incur it," and to establish the fact that the maxim applied. Osborne v. London <Sb JV. IV, Ry. Co., 59 L. T. Rep. N. s. 227 (Eng.); s. C. 38 Alb. L. J. 460.

The authority of Thomas v. Quatermaine, 18 Q. B. D. 685, is questioned.

Sale — Warranty — Recoupment of Damages. — A warranty by the vendor of a printing-press, that the machine will work "satisfactorily," does not entitle the vendee to recoup damages in an action against him for the price. If the cov- enant bad been that the press should work well, the ordinary rule would have applied, and the damages would have been the difference in value between a press which would work reasonably well, and that which was actually furnished; but it is impossible to fix the value of a machine which would work to the ** sat- isfaction" of defendant. Campbell Printing.Press Co, v. Thorpe 36 Fed. Rep. 414 (Mich.).

The opinion contains a very excellent discussion of the authorities on sales with warranties.

Trusts — CoNSTRUcnvE Trusts — Purchase by Attorney of Outstand- ing Title. — An attorney, employed to prepare an abstract of title to land about to be sold by his client, discovered a defect which he concealed. The land was conveyed to the proposed purchaser by a warranty deed. The attorney then, by false representations, procured from the proper parties the legal title for himself. Held, that he could not maintain ejectment, since he was a constructive trustee of the legal title for his client's grantee. Downard v. Hadleyy 18 N. E. Rep. 457 (Ind.).

It is doubtful whether the trust was based on a duty owed by the attorney to the grantee, or whether it was based on the client's equity against the attorney, to which the grantee became entitled by virtue of the warranty.

Waters and Watercourses — Right of the State in Great Ponds. — The State of Massachusetto authorized by statute the city of Fall River to take so much water from a pond called "Watuppa Pond," that owners of land bordering on a natural stream flowing therefrom were greatly damaged. It was held that the "Colony Ordinance of 1647," providing that householders shall have free fishing and fowling in any great ponds over ten acres in size within the pre- cincts of the town, and may pass and repass on foot through any man's land, so that they trespass not on corn or meadow land, vests in the State both the jus publicum and the jus privatum in great ponds, so that it can devote their waters to a public use without compensation to those injured thereby. tVatuppa Res- ervoir Co. V. City of Fall River, 18 N. E. Rep. 465 (Mass.).

For a criticism of this case see "The Watuppa Pond Cases," 2 Harv. L. Rev. 195. It should be noticed that the statement, made by Chief Justice Morton in hit opinion, that by Sutute of 1869^ c 384, the State of Massachusetts