Page:Harvard Law Review Volume 12.djvu/83

RECENT CASES. 63 belief. The prior claimant was therefore properly held to have estopped himself by reason of his negligence in not securing possession of the deeds. In accord with the principal case are numerous other decisions in England and in this country. Farrnnd V. Yorkshire Banking Co., 40 Ch. D. 182; Besson v. Eveland, 26 N. J. Eq 468. Simi- larly, a legal mortgagee, by reason of his fraud or negligence, has been postponed to a subsequent equitable claimant. Northern Counties, etc. Co. v. Whipp, 26 Ch. D. 482. Executions — Garnishment of Judgment Debts. — .^/</, that a judgment debt is subject to trustee process from the court in which the judgment was recovered. Isabellev. Le Blanc, 39 Atl. Rep. 436 (N. H.). Held, that a judgment debt is not subject to garnishee process from any other court. Eisenbergv. Burchiiiell, 52 Pac. Rep. 220 (Colo., Sup. Ct.). These two cases together state and define the better doctrine as to garnishment of judgments, though there is authority contra to both. In some States it is held that a judgment debtor cannot l)e garnisheed in any event, because he would be unfairly bur- dened and exposed to double liability. Black v. Black, 32 N. J. Eq. 74. The force of this argument is very slight where the garnishee process is in the court which rendered the judgment, as the court can then easily protect the debtor, at least before exe- cution has issued. The weight of American authority seems to be in favor of a more liberal view, and a few courts have gone so far as to make judgment debts subject to garnishment in any court. Fithian v. R. R. Co., 31 Pa. St. 114. This is going too far, however, because, if the judgment and the garnishee process are in different courts, a conflict of jurisdiction arises, and the debtor can protect himself only by apply- ing for an injunction against his creditor, or by similar expensive and troublesome proceedings. Nuisance — Abatement. — A ditch draining the defendant's land filled up through natural causes and a pond formed on the premises. The water in this stagnated and became annoying and injurious to the neighborhood. Held, that this is not a nuisance in the legal sense, and the Justices of the Peace cannot order its abatement under Civil Code, § 4760. Roberts v. Harrisoity 28 S. E. Rep. 995 (Ga.). The court goes on the ground that a legal nuisance cannot result from natural causes alone, but that the act of man must have contributed to its existence. The very meagre authority on the subject in this country supports the present case, i Wood, Nuis., § 116; Barring . Com., 2 Duv. 95 (Ky.); State v. Rankin, 3 S. C. 438. The opposite view is suggested in i Bish., Cr. L., §§ 316, 828. This is upheld by the authority of an early English decision. King v. Wharton, 12 Mod. 5 10, and seems to be the correct view. It is the existence of the nuisance which is complained of as injuri- ous to the public. To say that it shall be allowed to continue because it is the result of natural causes seems to give an inadequate reason either on the ground of principle or public policy. Persons — Infant's Contracts — Recovery^jf Consideration. — The plain- tiff, an infant, agreed to purchase a bicycle, and recei^ed it, and made partial payments thereon. She used it three months, and then returned it and demanded the money she had paid. Held, that she can recover the amounts so paid without diminution for the use of the bicycle or for any deterioration in value which was the ordinary result of such use. Rice v. Butler, 44 N. Y. Supp. 494 (Sup. Ct., App. Div.). This decision does not seem to be distinguishable on principle from Bartholomew v. Finnemore, 17 Barb. 428. There an infant gave certain goods in exchange for a horse. He afterwards rescinded the contract, but it was held that he was entitled to recover the value of his goods only on returning the consideration received by him, and that a return of the horse in a depreciated condition was not a return of the consideration received. The principal case, however, places New York in accord with the few authorities in this country. Whitcombv. Joslyn, 51 Vt. 77; McCarthy v. Henderson, 138 Mass. 310. There is great conflict of authority as to whether an infant who re- scinds a contract of purchase can recover the consideration paid without returning the goods purchased. His right to recovery, however, if he does return, seems settled. To allow recoupment for the use of the goods, or for deterioration not the result of the infant's tortious conduct, would subject him indirectly to a liability which could not be enforced directly on account of his infancy. Stack v. Cavanaugh, 30 Atl. Rep. 350. Property — Implied Reservation of Easements. — A land-owner sold part of his estate without expressly reserving a way through the part disposed of. The part retained could be reached only by ocean or through the part sold. Held, that the access by sea will prevent the implied reservation of a way by land. Hildreth v. Googins, 39 Atl. Rep. 550 (Me.). See Notes.