Page:Harvard Law Review Volume 2.djvu/356

 338 HARVARD LAW REVIEW.

sole benefit, authority being given to the trustee in the deed to mortgage the property on request of the husband and wife. Public policy, it is said, does not demand that the statute be extended "to destroy a power expressly bestowed, and render property inalienable which the donor granted upon condi- tion that it might be conveyed as specified." Brodnax v. Mtna Ins, Co.^ 9 Sup. Ct. Rep. 61.

This is an extreme example of whittling away a statute by judicial construction. The principle of this case seems to be that a statute forbidding certain uses of a wife^s separate estate does not apply to her separate estate which was conveyed with an express condition that it might be used in a manner forbidden by the statute.

Mortgages — Future Advances — Priority of Lien. — To the extent of the sum limited in it, and as against subsequent incumbrances, a recorded mortgage is entitled to priority for future advances made without actual notice of such incum- brancer, though it is not expressed to be for future advances, and the agreement making it such is verbal. Tapia v. Damartini, 19 Pac. Rep. 641 (Cal ).

Negligence — Child — " Due Care." — The " due care " required of a child nine years of age is not such a degree of care as the average child of that age would exercise, but such care as the capacity of the particular child in question enables it to use. iVesiern it A, R, v. Youngs 7 S. E. Rep. 912 (Ga.).

Negligence — Duty of repairing Fixed Property abutting on High- way. — A public highway which terminated at the boundary of the defendant's premises had been continued Iiy a private way over his land. The defendant built a wall six feet high across the end of the public highway, shutting off the private way. Trespassers pulled down this wall, leaving a remnant about seven inches high across the dividing line of the two roads. The defendant, knowing the condition of the wall, left it for several days unrepwired and unlighted at night. The plaintiff was driving in the night on the public road, on what he suppled to be a continuous thoroughfare, and his horse was injured by the remnant of the wall. NeU^ that he could recover damages from the defendant. Wills, J., "In this case there was a practical invitation to the public to go across this piece of private property belonging to the defendant. Now, if the owner of the premises was aware of the true state of affairs, he must have known that some person or other would be likely, especially in the dark, to drive over the whole length of the road. ... He had, therefore, a duty cast upon him to prevent the injury." Siherton v. Marriott, 59 L. T. Rep. N. s. 61 (Eng.).

Negligence — Violation of City Ordinance — Railroads. — It is negli- gence, as matter of law for a railroad company not to use the precautions for safety at public crossings, expressly prescribed by a valid statute or city ordinance. Western & A, R. Co. v. Young, 7 E. S. Rep. 912 (Ga.).

See in accord with the principal case : Petrie v. R. Co., 7 S. E. Rep. 515 (S. C); Kyne v. R. Co,, 14 Atl. Rep. 922 (Del.).

Partnership — Assignment of Firm Property for Benefit of Credit- ors. — A partnership is a distinct entity entirely separate from that of any one of its members. An assignment by the* partnership, therefore, of all the firm property for the beqefit of firm creditors is not rendered fraudulent and void by a failure to include the individual property of the partners. Trumbo v. Hamel, 8 S. E. Rep. 83 (S. C).

This case is important in that it adopts the mercantile conception of a partner- ship as a legal person, and refuses to follow the long line of English and Amer- ican cases, which treat a partnership as a collection of persons jointly liable.

Partnership — What passes to Assignee of Partner's Interest. — Held, that the statute of uses and trusts has no application to an assignment of a partner's interest in partnership property, real and personal, to be held in trust for the assignor, because partnership property, while in the hands of the firm as a legal entity, is to be treated as personal property; and furthermore, the assignment vested no present interest in specific articles of property, but the right transferred was a mere chose in action entitling the assignee to sue for a copartnership accounting. Greenwood \, Marvin, 19 N. E. Rep. 228 (N. Y.).

Statitte of Frauds — Sufficiency op Memorandum. — Plaintiffs salesman took defendants' verbal order for more than fifty dollars' worth of paints^ re- duced it to writing and forwarded it plaintiff. Defendants subsequently wrote to plaintiff saying, *' Don't ship paint ordered through your salesman." Before the