Open main menu

Page:Harvard Law Review Volume 2.djvu/67

This page needs to be proofread.


RECENT CASES. 49

open to criticism, but attorneys should not permit the interests of their clients to suffer by reason of any refined ideas of propriety." In re Barnes y 16 Pac. Rep. 896 (Cal.).

Banks and Banking— Insolvency — Drafts for Collection. — Plaintiff sent to F. bank a draft indorsed " for collection," accompanied with instructions to •* collect and credit proceeds." F. bank sent the draft to defendant, and the latter collected it, received the proceeds and credited them to the F. bank. Defendant notified F. bank of the collection, but the latter suspended business before crediting plaintiff with the proceeds. Heldy that defendant's title depended upon that of the F. bank, and that as the relation of principal and agent, which existed between the F. bank and plaintiff, could only be changed to that of debtor and creditor by a credit of proceeds on books of bank while it was solvent, and as such credit took place after suspension of bank, plaintiff was entitled to recover full amount of draft. First Nat. Bank of Circleviile v. Bank of Monroe ^ 33 Fed. Rep. 409 (New York); In re Arm- stror^y id. 405 (Ohio). See also Giles v. Perkins^ 9 East, 13.

Bill of Exchange — Oral Acceptance. — The drawee of an order on pre- sentment and demand, after taking time to consider, told the payee, *' I think there win be money enough to pay you, and it will be all right, and I will pay it." On another occasion, the payee's agent asked the drawee s^ut the order, and said he

  • would not pav it that afternoon ; but tell Short [the payee] it is all right, and I will

pay it; " and the agent so informed the payee. Held^ that these words, though not in writing, in absence of a statute requiring written acceptances, constituted a valid acceptance. Short v. Blount^ 5 S. E. Rep. 190 (N. C). For comment and collection of authorities on oral acceptances see Ames' Cas. on Bills and Notes, Vol. II., p. 168, note 2.

Charitable Corporations — Civil Liability. — The plaintiff purchased a grave of the defendant, a cemetery association. His wife died, and when the funeral procession reached the grave, it was found that the defendant had carelessly per- mitted the burial of two other bodies in the plaintiff's grave. Trespass was brought, and plaintiff recovered damages. The defence was, that the defendant was a char- itable association, and as such not subject to dvil liability. It was shown that no member received any profit, but that all the funds were used in ornamenting .the grounds, bivying the poor, giving graves to public institutions, and the like. But the court said that the association was not legally a charitable one, because there was nothing in the charter which compelled the application of any part of its funds to charitable uses. That the funds were, in fact, so applied, ought to be no more a defence, than if defendant were a private individual Donnelly v. Boston Catholic Cem. Ass'n, 15 N. E. Rep. 505 (Mass.).

Check upon Fund — Equitable Assignment. — A check drawn on a general deposit before bankruptcy does not operate as an equitable assignment pro tanto, Florence Min, Co, v. BrowUy 8 Sup. Ct. Rep. 531, 534.

Contract — Consideration — Forbearance to Sue. — Defendants agreed to pay the plaintiff I400, in consideration of his forbearing to contest a will which was, in fact, perfectly valid. Held^ that where a person gives up what he in good faith believes to be a right of action, on the promise of another to pay money for such surrender, the real consideration of the contract consists in the detriment suffered by the person consenting to the surrender, arising from the alteration in his position caused by the promise of the other. Rue v. Miers et al.^ 12 Ati. Rep. 369 (N. J.)l

Callisher v. Bischoffsheim^ L. R. 5 Q. B. 449, is followed as autiiority. See also MUes V. New Zealand A If or d Estate Co., 32 Ch. D. 266; Eckfordv. Barelli, 20 W. R. 116; Grandin v. Grandin^ 9 Ati. Rep. 756. To the effect that forbearance to sue is not a good consideration for a promise, unless there is a reasonable doubt as to the validity of the claim, see Langdell, Summary of Contracts (2d ed.)^ §§ 56, 57, and cases there cited.

Constitutional Law — Delegation of Legislative Power. — A local option law forbidding the sale of intoxicating liquors, providing that any county, or any town or dty having a population of over 2,500 inhabitants, may 1^ a majority vote come under the operation of the law, is not a delegation of legislative power, out is a law to take effect upon the happening of a future contingency, namely, the vote of the people of the respective localities. Sherwood, J., dissenting. The case con- tains a full collection and discussion of authorities. State v. Pond, 6 S. W. Rep. 469 (Mo.>