Page:Harvard Law Review Volume 8.djvu/193

177 RECENT CASES. ^11 the fact that cases of this kind do occur and are litigated in the courts would seem to imply that resultant insanity from the shock is a more or less probable result of a collision. Et.kction — Validity — Effect of Illegal Appointment of Ballot Clerks. — The election law requires the appointment by the commissioner of elections of two bal- lot clerks of opposite political parties. Where the commissioner acting without fraud appointed two extra clerks who helped the voters prepare their ballots, hc/ti, that the statute is directory not mandatory, and that no irregularities on the part of the election officers will vitiate an otherwise Isgal election unless it be shown that the result thereof was changed or rendered so uncertain as to make it impossible to obtain the true result. That the will of the people expressed at the polls must not be set aside because their officers acted informally. Brannon, J. cUssen/ing. It is impossible to prove that ballots were altered and the result of the election changed. To require such proof is to nullify the statute. Elections are legal only when held in accordance with the statute, and when the statute is, as here, violated in an important particular they should be set aside. Di^il v. Hollands vorth, 19 S. E 557 (West Virginia). Equity Jurisdiction — Failure ok Husrand to Support Wife — Advances by Third Person. — A husband deserted his wife without making any provision for her support Plaintiff advanced money to her for the purchase of necessaries. Held, an equitable debt is created and plaintiff may recover the money so advanced by suit in equity. {I etippi' v. Osbom's Ex'rs, 29 Atl. Rep. 433 (N. J.). The court follow the principles laid down in Kenyon v. Farris, 47 Conn. 510. Compare also Keener on Quasi Contracts, 341-353. Equity Jurisdiction — Specific Peuformance of Contracts. — The court will not degree specific performance of negative covenants by an actress, in a contract with a manager when the object is indirectly to secure performance of the affirmative covenants. 1 umley v. Wagner, i De G. M. & G. 604 ; denied,) Rice v. D'Arville^ Boston Transcript, Sept. 29, 1894, Mass., Suffolk Equity Session, — Holmes, J. See Noi'ES. Evidence — Negligence — Alteration After Accident. — As evidence that an accident on defendant's railroad was caused by its negligence in maintaining an unsuitable switch, plaintiff offered to show that after the accident defendant removed the switch and replaced it by one of another kind. Held, inadmissible evidence (over- ruling M.irtin v. Toule, 59 N. H. 31). Aldruh v. Concord and Montreal R. R. 29 Atl. Rep. 408 (N. H.). New Hampshire, by adopting this rule of exclusion of evidence, has come into line with the great weight of authority. This is the rule in England, Hart. R .R. Co. 21 L. T. (N. S) 261, as well as in the United States Supreme Court, R. R. Co. v. Haw- tho'iie, 144 U. S. 202. Pennsylvania and Kansas are probably the only States which now hold the contrary view. Evidence — Parol — Conditional — Delivery of Sealed Instrument. — Delivery of an instrument to a party thereto, when not relating to real estate, may be shown to have been given on a parol condition that it should not take effect until the happening or doing of something, although the instrument be under seal, at least where the seal is not required for its validity. Blewitt v. Boorutn el al,, 37 N. E. Rep. 119 (N. Y.). This case is the first which brings up in New York the question whether the fact of there being a seal on the instrument is sufficient to prevent the introduction of evidence as to the condition attached to the delivery. The case does not decide more than that where the seal is superfluous, — is not necessary for the validity of the instrument, — the evidence is admissible. The court, however, intimate strongly that it should be admitted also in cases where the seal is necessary, the basis of the opinion being that such evidence is not introduced to vary the writing, but to show that no agreement ever existed. A clear distinction is drawn between such instruments as the one in the principal case and those involving real estate, in regard to which the law in New York is settled that a conditional delivery cannot be made to the grantee, but to be valid as an escrow it must be made to some third person. Braman v. Bingham, 26 N. Y. 483; Wallace. Berdell, 97 N. Y. 13. The decision in the principle case follows the English rule. Bowker v. Burdekin, 11 M. & W. 127 ; Gudgen v. Bessett, 6 El. & Bl. 986. Judgment — Joint Contractor. — An unsatisfied judgment against one joint contractor on a check given by him alone for the joint debt, is not a bar to an action against the other joint contractor on the original agreement The defendant and T. jointly guaranteed the payment of a third party's rent. The rent being in arrear T. gave the plaintiff his check for the amount. The plaintiff sued T. on the check and