Page:Harvard Law Review Volume 9.djvu/314

286 286 HARVARD LAW REVIEW. the question. Held hy a majority of the court, that, as the present had formed one of three distinct claims in the lower court, and neither its record nor the defendant's an- swer in the present case showed that it had been adjudicated there, the judgment was no estoppel, and that as all agreed that the fact of the contract being iiliravires was no bar to the plaintiff's claim, he ought to recover. Nashua ^ L. A Corp. v. Bostcn &^ L. R. Corp., 41 N. E. Rep. 268 (Mass ). That such a claim as the present is not barred by the fact that plaintiff corporation acted ultra vires is well settled. The recovery should be in quasi contract, and not on the contract itself, as it is illegal. In the first form of action the law implies a prom- ise, and so the illegal contract is not put in question Keener on Quasi Contracts,p. 272, note I. Whether the claim is barred by a previous judgment, in which it formed one of three distinct issues, is a more difficult question, and was the one on which the court differed. The majority seems to think that the defendant should show that the claim was not adjudicated below. 1 ut why should theburden of establishing this be on defendant t The judgment of the court below raises at least z. prima facie case against plaintiff's claim, and, if it does not entirely estop him from showing that it was not adjudicated there, it at any rate puts on him the burden to show it was not. Paine v. Ins. Co., 12 R. I. 440. The opinion of the majority of the court is open to doubt on this point, even if one does not feel inclined to go as far as Mr. Justice Holmes, who, in dissenting, remarks, "When the pleadings present three distinct issues, and the final decree is for the plaintiff in two of them and is silent as to the third, it has the same effect with regard to that issue as if it had been expressly for the defendant. " Goodruh y. Yale 8 Allen, 454 ; Schmidt v. Fahensaorf, 30 la. 498. Contracts — Stock Gambling — Recovery of Securities.— Plaintiff and de- fendant had entered into a contract by way of wager on the differences of tape prices of stocks. As security for payment the plaintiff deposited certain shares, and for the recovery of these this action is brought. The defendant relied on the following clause in the Gaming Act of 1845 = " ^^ ^^^^ shall be brought . . . for the recovery of any valuable thing . . . deposited in the hands of any person to abide the event on which any wager shall have been made. " Held, that this clause applies only to deposits to which the happening of the event is to determine the title ; that the securities are not of such a nature, and may be recovered. Strachan v. Universal Stock Exchange Limited^ [1895] 2 Q. B. 329. This decision seems sound and to accord with the rule allowing recovery of de- posited stakes when depositor has repented and demanded the wager of the stake- holder before the happening of the event. The ground of the decision in both cases is that it does not aid or affirm an illegal contract, but arrests it. Corporations — Floating Security — Subsequent Mortgage of Charged Assets. — The defendant railway company issued a set of debentures, and, as floating security for the payment of interest thereon, charged all its property, present and future. A condition provided that "notwithstanding the said charge the company shall be at liberty to use, sell, or otherwise deal with any part of its property until default shall be made in the payment of interest for three calendar months. " After an instalment of interest had fallen more than three months in arrear, the company mortgaged a part of its assets to secure the payment of anewset of bonds then issued. The plaintiff on be- half of the debenture holders brought this action to enjoin the payment of the money on the bonds. Held, by the Court of Appeal, reversing decision of North, J, that after the expiration of the three months the security still remained floating and the assets at the disposal of the company until some action was taken by the debenture holr'er • to enforce the securty. The bondhol ^ers therefore had priority, the morttag ha ing been in trust for them. Government Stock Investment and other Securities Co, v. Manila Ry. Cc»., [1895] 2 Ch. 551. The reversal of the decision of Nor h, J., seems t > have rested aHogether on a mere differe ce of interpretation. North, J., was of opinion that, the charge as floatingsecu- rity being not enforceable until interest was three mon'hs i < arr-?r, the proper infer- ence w s that rt the end of that perio 1 it became a fixed ch-^rge with- ut any action on the 1 art of the debenture holders, and so granted the decree prayed for. The view entertained by the Court of Appeal would seem to be the sounder. Corporations — Powers of a City in Regulating the Price of Gas. — In 18S6 the city of lola granted t > the lola Gas and Coal Co. the right to lay pipes, etc., and to supply the city with gas. No rates were prescribed. In 1889 the compary assigned all its rights and interests to Pryor and Paullin. In 1895 the city passed an ordinance making it unlawful for any person or firm to charge for gas anythirg in excess of certain prices specified in the ordinance. Held, that said ordinance is in- operative and void as to Pryor and Paullin, in so far as it purports to establish prices