Page:Harvard Law Review Volume 9.djvu/459

Rh —Several persons associated themselves for the purpose of organizing a corporation, entered into contracts in the name of the proposed corporation, and then abandoned their purpose. Held, the relation of such promoters to each other is that of principal and agent, and each is liable for such contracts as he authorized or ratified. ''Roberts Manuf. Co. v. Schlick'', 64 N. W. Rep. 826 (Minn.).

This is the doctrine admirably stated in Johnson v. Corser, 34 Minn. 355, and, it is submitted, is correct. The notion that such promoters are liable as partners or nothing (Martin v. Fewell, 79 Mo. 401), is indefensible. The ordinary principles of agency cover the case.

—Where a debtor made a general assignment for all his creditors, it was held that a creditor whose debt was partly secured by a lien on specific property could recover from the assignee on the basis of his whole debt without deducting the amount which he would realize on his separate lien. Winston v. Biggs, 23 S. E. Rep. 316 (N. C).

In many States a secured creditor is allowed to receive a dividend only upon the balance remaining unpaid after exhausting his security. Wurtz v. Hart, 13 Iowa, 515; National Union Bank v. National Mechanics' Bank, 30 Atl. Rep. 913 (Md.); Merchants' Bank v. ''Eastern Ry. Co.'', 124 Mass. 518. The prevailing view, however, is in accord with the principal case. Allen v. Danielson, 15 R. I. 481; West v. Bank of Rutland, 19 Vt. 403; Paddock v. Bates, 19 Ill. App. 470; Moses v. Raulet, 2 N. H. 488; Graeff's Appeal, 79 Pa. St. 146; Kellock's Case, L. R. 3 Ch. App. 769. These latter cases, it is submitted, are correct, resting on the theory that the security is something collateral, and does not reduce the debt, but only secures the creditor pro tanto in case the debtor cannot pay.

—Defendant was indebted to plaintiff, and W. was indebted to defendant. Defendant made a written assignment to plaintiff of W.'s debt to him, and V. assented. Defendant then sued W. for the debt assigned and recovered, W. failing to protect himself by pleading the novation. Plaintiff now petitions for an injunction to restrain defendant from collecting the judgment. Held, that plaintiff still had his remedy at law against W., who had subjected himself to a double recovery. Injunction refused. Perry v. Thompson, 18 So. Rep. 524 (Ala.).

Plaintiff's rights of course are not prejudiced unless W. is insolvent, in which case the injunction should have been granted.

— The plaintiff in this case claims under a will which was discovered twenty years after the testator's property had been distributed among his next of kin. Held, that the action was not barred, since there was mutual and blameless mistake. Crawford's Adim'r v. Smith's Ex'r, 23 S. E. Rep. 235 (Va.).

In this country the statute of limitations operates as a bar in equity, as well as law, ex suo vigore. But where through fraud or mistake it would be inequitable to permit it to bar the suit, courts of equity interpose, as in England. Fraud and mistake come within the same rule. Brooksbank et al. v. Smith, 2 Younge & Coll. 58; Hough v. Richardson, 2 Story, 659; Story's Equity Jurisprudence, § 1521 a.

—Held, that a confession to an officer, who informed his prisoner "that it might go lighter with him if he told all about" the crime, was admissible as evidence. Thomas v. State, 32 S. W. Rep. 771 (Tex.).

The decision is based upon the erroneous assumption that a positive promise is necessary in order to render a confession inadmissible. It might well have been held that the officer's words to the defendant furnished an inducement fatal to the trustworthiness of the confession, and this conclusion is authorized in the books. Com. v. Curtis, 97 Mass. 574; State v. York, 37 N. H. 175. Of course, were a positive promise made, the confession obtained thereby would be properly excluded. Such was the decision in the recent case of State v. Smith, 18 So. Rep. 482 (Miss.).

—Defendant was indicted for burglary; plea insanity. Held, that evidence by the prisoner's mother that she had another son, an imbecile from birth, should be admitted. Schaeffer v. State, 32 S. W. Rep. 679 (Ark.).

The court cites People v. Garbutt, 17 Mich. 9, as directly in point, and the decision follows the weight of authority in this connection. Such evidence of a family trait is cumulative, and is only admissible in connection with and in support of other evidence tending to a direct proof of the same fact. This the court recognized in the present case. See Snow v. Benton, 28 Ill. 306; People v. Smith, 31 Cal. 466; and Wharton & Stile's Medical Jurisprudence, §§ 375, 377.