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Page:Harvard Law Review Volume 1.djvu/415

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Marriage—What Constitutes.—Under the provision of the California code that consent alone will not constitute marriage, but must be followed by a solemnization, “or by a mutual assumption of marital rights, duties, or obligations,” it is not necessary to the validity of the marriage that the relation of the parties be made public, and proof of cohabitation is sufficient to show a mutual assumption of marital rights and duties. Two judges dissent. Sharon v. Sharon, 16 Pac. Rep. 345 (Cal.).

The case contains an elaborate inquiry as to what is essential to a lawful marriage. See, also, Beverlin v. Beverlin, 27 Am. L. Reg. 94 (W. Va.), with a note giving the law of the different jurisdictions in this country in detail.

Negligence—Burden of Proof.—While in the defendant’s depot, in passing through a swinging door, in which was a pane of glass, the plaintiff was cut by reason of the breaking of the glass when he put out his hand to receive the force of the door as it swung from the hand of a person receding him. The plaintiff contended that this was a prima facie case of negligence, because the defendant was a carrier. Held, that the rule shifting the burden of proof applied only where the injury was caused by the machinery of transportation or in the course of business peculiar to a railroad company. Hayman v. Pa. R. Co., 11 Atl. Rep. 815 (Pa.); Morris v. Railroad Co., 13 N.E. Rep. 455 (N.Y.), accord.

Negligence—Fire.—Defendant was burning cornstalks in his own field. The fire, by reason of a change in the wind, got beyond his control and threatened haystacks in a neighbor’s meadow. He attempted to save the stacks by setting a back-fire in the meadow, but this fire escaped and burned the stacks. Held, that there was no liability unless the defendant was negligent, and that no extraordinary care was required; and further, that there was no error in an instruction to the effect that negligence in the management of the back-fire would not render him liable if the first fire escaped without his fault, and would surely have destroyed the stacks. Sweeney v. Merrill, 16 Pac. Rep. 454 (Kan.).

Partnership.—The defendant A, having an empty storehouse, told the defendant B that he would give him the use of the house and $200 for carrying on his business, in return for one-half the profits of such business. B carried on the business in his own name, and both A and B agree in their testimony “that A was to have one-half the profits for the use of the house and the money.” Held, that A was a partner as to third persons, and liable for debts contracted by B in the course of the business. Marbut v. Moore, 4 S.E. Rep. 383 (Ga.).

Partnership—Dissolution.—One partner, without the knowledge of his copartner, sold most of the firm property, took the rest with him, and went into business in his own name in another State. As soon as his whereabouts was discovered, the defrauded partner sought him out, and induced him to give a promissory note for a bona fide debt. He afterward attached the stock, part of which had been purchased by the absconding partner on his sole credit. Held, that the attachment gave a priority over those who had thus furnished goods, since the defrauded partner was justified in treating the partnership as dissolved, and was, therefore, like any other creditor. Strong v. Stapp, 15 Pac. Rep. 835 (Cal.).

Power of Appointment—Effect of.—It was agreed by a marriage settlement that if either husband or wife should thereafter become entitled to realty or personalty to the value of £500 at one time, and from the same source, it should be settled like the other property. The wife’s father bequeathed £4,000 to trustees for such person as she should appoint, and in default of appointment for her separate use, declaring his intention to enable her to defeat the covenant in the marriage settlement. She appointed the whole to herself by successive appointments, each less than £500. Held, that it was not bound by the covenant. Re Lord Gerard, 84 L.T. 278 (Ch. D.).

Rule against Perpetuities—Charitable Trust.—Money was devised in trust to pay the income to the incumbent of a certain church and his successors so long as no demand was made for pew-rent; then it was to fall into the residue and be treated as a part of the residuary personal estate. Held, that the gift over was not void under the rule against prpetuities, since it was merely a direction that it should go as the law would have made it go. Re Rendell, 84 L.T. 279 (Ch. D.).

Sale, Conditional—Bona-Fide Purchaser without Notice.—The plaintiff sold goods to a purchaser, with a stipulation that the title should not pass until the price was all paid. The purchaser mortgaged the goods to the defendants, who had no notice of the agreement. Held, the defendants are pro-