Page:Harvard Law Review Volume 5.djvu/55

RECENT CASES. 39 tice to himself without an evasion of the statute. He has only to seek the recovery of his money in equity instead of at law. It may be thought that equity has no jurisdiction where the only relief sought is the recovery of money got by fraud. But this is a misapprehension. Bills of this nature have been entertained from time immemorial. In- deed, at one time equity had exclusive jurisdiction of such cases. Now, a bill in equity, not being an action on the case, is not within the letter of the statute of James I. Equity, therefore, in giving effect to the statute follows its spirit, and refuses to apply it where its application would work injustice. The statute does not, therefore, begin to run against a defrauded plaintiff until he discovers, or ought, as a reasonable man, to have discovered, the fraud. 1 Mistake. — The preceding observations apply to cases of money paid by mistake, if the receiver was aware of the mistake at the time of payment. If, however, the money was received innocently, the difficulty of working out the rights of the parties at law is increased. The cause of action must accrue either without, or else only after a demand. If no demand is necessary, the defendant may be unjustly condemned to pay the costs of an action although in no default and ignorant of any liability. If a demand must precede the cause of action, a plaintiff, by failing to make one, may postpone the running of the statute indefinitely. These difficulties are obviated in equity. For the plaintiff may proceed in equity without a demand, but if he acts op- pressively, he must, although victorious in the suit, pay the costs. And, on the other hand, equity would refuse relief, if the plaintiff, knowing of his right, should allow the six years to go by. It should be added that the common-law difficulties have been in great measure removed, in some jurisdictions, by special statutory provisions. RECENT CASES. [These cases are selected from the current English and American decisions not yet regularly reported, for the purpose of giving the latest and most progressive work of the court. No pains are spared in selecting all the cases, comparatively few in number, which disclose the general progress and tenden- cies of the law. When such cases are particularly suggestive, comments and references are added, if practicable.] Agency — Contract by Unauthorized Agent. — A person who contracts bona fide, as agent, without having in fact authority so to do, is personally respon- sible, on an implied warranty of his authority, to those who enter into agreement with him, believing that he is invested with such authority. Farmers' Coop. Trust Co. v. Floyd et al., 26 N. E. Rep. no (Oh.). Agency — Liability of Employer for Injury to Servant — Promise to Repair. — The fact that the plaintiff remained in defendant's employ after he had discovered that the risk thereof had been increased by defendant's negligence, will not preclude his recovery, where defendant promised to remove the threatened danger. Rogers et al. v. Leyden, 26 N. E. Rep. 210 (Ind.). Agency — Liability of Employer for Injury to Servant — Promise to Repair. — Plaintiff was injured in the course of his duty as superintendent of defen- dants' drawbridge. A few days before this accident, he had called the proper officer's attention to it, saying that somebody was likely to be hurt, but not complaining on account of his own increased danger. Held, that he assumed all risks of the employ- 1 Booth v. Warrington, 4 Bro. P. C. (Toml. Ed.) 163 ; South Sea Co. v. W'ymondsell, 3 P. Wms. 143; Blair v. Bromley, 5 Hare, 542; Kirby v. Lake Co., 120 U. S. 130; Gibbs v. Guild, 9 Q. B. Div. 59.