Page:Harvard Law Review Volume 8.djvu/194

178 17^ HARVARD LAW REVIEW. recovered judgment which was not satisfied. The plaintiff then sued the defendant on the original guarantee. lield^ that the causes of action upon the check and upon the guarantee were not the same, and that the judgment against T. afforded n > defence to the action. {Drake v. iMitchcll, 3 East, 251, followed ; Cambefort. Chapman, L. R. 19 Q. L5. D 229, disapproved.) Weg^i Prosser v. l-.vans, L. R. [1894], 2 Q. B. loi. Wills, J., in his opinion goes carefully over the authorities and comes to the conclusion that Dr,ike V. Mitchell ,2Si6. Cainbefort. f /4<7//;/«« , decided opposite ways, cannot be distin- guished from the principle case or from each other, although the court in deciding the latter case had attempted to distinguish it from Dr,ike v. Mitchell. He therefore follovvs the earlier case, which has been treated as law without disapproval until the decision of Camhefort . Cliapiiian. Mortgage — Foreclosure — Statute of Limitation. — In an action to fore- close a mortgage where the plea was the statute of limitations, held, that an action to foreclose is an action on a specialty and not an action for the recovery of title or possession of real estate, since its purpose was not to give the mortgagee title or pos- session, but to have the land sold and the proceeds used inpayment of the debt. Kerr V. Lydccker, 37 N. E. Rep. 267 (Ohio). The above seems to be the rule in a few States, — California, Texas, Iowa, and Illinois. But the general rule is the other way, that the period of limitation for mort- gages is the same as for any claim to lands where some one has held the lands adversely. This seems right on principle, as the title is in the mortgagee, and, that being so, the same limitation should apply as in an ordinary case. Promoters of Corporations — Interest in sale to Company. — An owner of patents and a promoter made a secret agreement that the latter should form a stock company to purchase the patents and manufacture under them, and that the patentee should pay the promoter one half the price received. IJeld, the company may recover from the promoter his secret profits. The grounds of liability are two : (i) that he promoter stands in a fiduciary relation to the company, (2) fraud, in not making full disclosure to the company of his relations with the property which is the subject of the deal. Yale Gas-Stove Co v. WiUox et ux, 29 Atl. Rep. 303 (Conn.). The decision is not that a promoter may not form a company to buy something in which he is interested, but only that, if he does so, he must make the directors of the company aware that he has an interest. The case where a promoter buys the thing outright from the owner, and then forms a company and sells it at an advance, is dis- tinguishable, for there no part of the purchase-money paid to the original owner comes out of the company. QUASI-CONTKACTS RECOVERY OF MONEY USED BY THIRD PERSON TO CoVER Defalcation. — Defendant's manager, who had no authority to borrow money or to overdraw defendants' bank account, borrowed money of plaintiff, giving a check signed in his name by procuration for defendants. The manager had overdrawn defendants' account a d borrowed the money for his own purposes to replace money of defendants which he had abstracted, paid the money into defendants' account at their bank, and used it to pay the wages of defendants' workmen. Jjeld, as the money had found its way into defendants' possession and been employed for their benefit, it was money received to the use of plaintiff, who is entitled to recover t* ough defendants did not knov/ of the borrowing. Reid. Rigly &' Co.,l. R. (1894) 2 Q. B. 40. The case is obscure as to whether the manager actually used the money so bor- rowed to r place the money abstracted by him. It would seem that he did. If this is so, it is submitted that plaintiff should not recover. The manager used the borrowed money topayadebt of his,?. <■., defendants' claim against him for the money abstracted, and plaintiff can follow it no further since defendants took it in payment of a legal c!aim. hat defendants did with it after so receiving it is not material. In Cra// v. ^'ou'th Po'ton A'. /'., 150 Mass. 207, the treasurer of a corporation obtained money from the plaintiff by false pretences and used it to cover up his defalcations, by paying debts of the corporation. In an action for money had and received, a recovery was not allowed. That case seems to be similar to the one under discussion. See also in this connection 33 C al. 134, p. 147, and Keener on Quasi-Contracts, 330-334. Neither in this case nor in Cra/t v. South /Jos/on H. R. does the question seem to have been raised whether the guilty knowledge of the agent in receiving the money to be regarded in law as the knowledge of the principal. On this point see Atlantic Milts v. Indian Orchard Mills, 147 Mass. 268, 273. Real Property — Covenants Running with the Land — Privity of Estate. — Land was conveyed to a wife separately, who occupied it, while the husband had possession. Under these circumstances the husband covenanted merely as to his