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Page:Harvard Law Review Volume 2.djvu/68

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50

HARVARD LAW REVIEW.

Constructive Trust — Land obtained by Fraud — Restitution. — 6 sold to M a certain tract of land which was misdescribed in the deed. M, intending to convey the land he had purchased of B, executed a deed to G, who, knowing of the error in original description, had prepared the deed containing a description of a por- tion of the premises actually conveyed by B to M. G sold to a bona fide purchaser. B in the meantime had sold the land described in the deed from B to M to one Mul- len, from whom plaintiff traces title. Held^ that G was a constructive trustee of the property while the title was in his name; that having disposed of the land he was chargeable to plaintiff with its value at the time of the conveyance to the bona fide purchaser ; and that the amount due from such purchaser should be applied in satis- faction of the same. Coggswll v. Griffith, 39 N. W. Rep. 538 (Neb.>

There are two theories upon which the plaintiff may recover in such a case as this : — (1) On the theory of constructive trust, where the plaintiff recovers either the land or its proceeds. (2) On the theory that the defendant must make restitution for that which he has taken from the plaintiff ; tiiat is, restore the land if he has it, if not, give its equivalent. This case, which was apparently decided upon the latter theory,' sa3r8 that the equivalent is the value of the land at the time it was conveyed to the bona fide purchaser. It may be asked, why would it not be complete restitution to give the plaintiff the present value of the hmd ?

Copyright — Adaptation of Sheet Music to Organettes. — The manufac- ture and sale of perforated strips of paper, to be used in organettes for producing a certain tune, is not a violation of the copvrighted sheet music of the same tune. Ken- nedy V. McTammany^ 33 Fed. Rep. 584 (Mass.).

Criminal Law — Assault with Intent to Kill. — A nurse administered to a little child tincture of assafoetida, which she supposed to be poisonous, but was really not so. There was no direct evidence that force was used. Heldy that she was guilty of an assault with intent to kUl, and the jury vtras authorized to find that force was used from the fact that so small a child had drunk so nauseous a drug. SttiU v. Clever, 4 S. E. Rep. 564 (S. C).

Eminent Domain — Illegal Taking of Land — Intervention of Public Rights. — Ejectment was brought against a railroad company which had wrongfully seized land. The owner had apparently acquiesced in the seizure for a long time. The case turned upon another point, but the court said that acquiescence until after publk rights had intervened would prevent the owner from recovering the land^ although acquiescence would be no bsur to an action for compensation. It is no prin» dple of estoppel which prevents recovery of the land, but public policy simply, /if- diana, B., &* W, Ry, Co, v. Allen, 15 N. E. Rep. 446(Ind.>

Estates — Deed reserving Title till Grantor's Death. — In consideration of personal services, A granted, bargained, sold, aliened, conveyed, and confirmed cer- tain land to B and his heirs, the title to remain in A during his lifetime, and at his death to vest in B. Held, that B had an immediate estate in fee, subject to a life estate in A. White v. Hopkins, 4 S. E. Rep. 863 (Ga.>

Evidence — Account-Books. ~ In an action by the administrator of the payee of a promissory note against the maker, in order to establish certain alleged payments on the note, an account-book kept by the maker himself, and containing entries of the payments in question, was offered in evidence. The maker was alive and present in court. Held, inadmissible. The court said : ** There is no doubt that shop-books may be introduced as evidence of sales made or work done, etc., under pressure of certain necessities ; but the record of payments on a debt evidenced by a bond or note of the debtor, made by the debtor himself, do not come within the rule." Well^ AdmW V. Ayres, 5 S. E. Rep. 21 (Va.).

Evidence — Character. — In an action against a railroad company for injuries due to the negligence of its employes, it was held that the general reputation of a fiagman at a railroad crossing for carelessness is inadmissible in evidence to prove his carelessness on a particular occasion. Baltimore <^ O, R, Co, v. Colvin, 12 AtL Rep. 337 (Pa.>

Evidence — Deposition — Conviction and Execution of Deponent before Second Trial. — The deposition of one C, then confined in jail on a charge of murder, was taken and read at the trial of a civil action. On appeal, judgment was reversed and a new trial ordered. Before the second trial, C was convicted of murder and executed. Held, that C*s deposition was inadmissiUe as evidence in the second trial. If C had been convicted before the second trial, but not yet executed, being