Page:Harvard Law Review Volume 2.djvu/70

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HARVARD LAW REVIEW.

as collateral security for the payment of a note of which he was maker. The bonds were applied in part payment of the note, and the banker shortly afterwards became insolvent. Held^ that the proceeds of the bond went to increase the assets of the bank, and that plaintiff's claim should be preferred to those of general creditors. Bowers v. Evans^ 36 N. W. Rep. 629 (Wis.).

It is questionable whether, in the above case, the facts warrant the conclusion that the proceeds of the bonds "went to increase the assets of the bank which were assigned." Wherever it is clear, however, that the fund of the assignee is greater than it would have been if there had been no misappropriation, the dSrauded person is to be preferred to the amount of such excess. For collection of authorities see I Harv. L. Rev. 104, note.

Master and Servant — Supervising Architect — Liability for Negli- gence. — When, in the erection of a building on the defendant's premises, the worit is done under the direction of a supervising architect having discretion as to the mode of doing the work, but subject to the control of the defendant, who has the ultimate power of ordering how the work shall be done, semblcy that the defendant is liable for personal injuries to a workman, caused by negligent performance of the work. The architect in such a case is not an independent contractor. Campbell v. Lumfordf 3 So. Rep. 522 (Ala.).

A note cites cases on the question as to when the terms of a written contract for work are sufficient to prevent the contractor from being independent, so that the rule respondeat superior will apply.

Mistake of Law — Voluntary Payment of Judgment Debt. — Plaintiff, to avoid an execution sale, made a voluntary payment of a judgment debt. In the mean time an appeal had been entered which resulted in a revers^ of the judgment I/eld^ that the payment being voluntary, plaintiff was not entitled to restitution. Gould et ux. V. McFall, 12 Atl. Rep. 346 (Pa.).

In support of the proposition that money voluntarily paid with a full knowledge of all the facts cannot be recovered back because the party was ignorant of, or mistook, the law as to his liability, see County of Jefferson v. Hawkins ^ 2 South. Rep. 362 (Fla.); Baldwin v. Foss^ 32 N. W. Rep. 389 (Iowa); Shipman v. Dist, of Columbia^ 7 Sup. Ct Rep. 134; Gillian v. Alfordy 6 S. W. Rep. 757 (Tex.).

Perpetuities — Statutory Rule Against. — Under a statute which provides that every future estate shall be void in its creation which shall suspend the abso- lute power of alienation for more than two lives in being, held^ that a clause in a wiU which conflicted with such statute, thus making invalid certain trusts created by the will, should be treated as a nullity. Palms v. Palms^ 36 N. W. Rep. 419 (Mich.).

As the property was devised to trustees with a power of sale, the case is valu- able as showing that the conception of the common-law rule against perpetuities, that if the future estate may not vest within the required limits it is void, is applied to a statutory rule which simply prohibits the suspension of the power of alienation. A statute similar to the above exists in California, Indiana, Minnesota, New York, and Wisconsin.

Statute of another State — How far Enforceable. — Plaintiff's intestate was killed by defendant railroad company in Michigan, where, by statute, a right of action accru^ to the personal representatives of deceased. Action was brought in Indiana, where a simUar statute was in force. Heldy that a right of action arising under a statute of another State will be enforced as readily as if it arose under the common law, provided that the statute in question is not against the express pro- visions or the policy of the law of the State where action is brought. Cases for and against this proposition are collected. Bums v. Grand Rapids 6r* I. R, Co,^ 1 5 N. £. Rep. 230 (Ind.).

Trusts — Resulting. — A conveyed land to B upon which C had a mortgage. D paid off the mortgage and directed C to convey his interest to 6. Held^ that there was no resulting trust in favor of D, because a trust will result only when considera- tion is furnish^ for a conveyance of the land itself, not when money is advanced merely to discharge an incumbrance. The court makes some interesting observations in regard to resulting trusts. **The doctrine of resulting trusts is a very difficult one ; indeed, it should be swept away by legislation, and should have no resting- place in this State. It served its purpose long ago. When a man makes a deed to another, no trust being reserved in the deed, Imt the whole title being conveyed, with warranty, etc., no trust should result" Boyer v. Floury ^ 5 S. £. Rep. 63 (Ga.).