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11 Harv. L. Rev. 125 (1897-1898)
Recent Cases

handle is hein.journals/hlr11 and id is 141 raw text is: RECENT CASES. fond of society, of yachting, of the opera, of all amusements; he was a capital host, and used to gather at his famous table the brilliant and interesting people of the day. In the street he is said to have appeared for all the world like a groom taking a holiday, but on the bench his presence was dignified and imposing. RECENT CASES. AGENCY - MASTER AND SERVANT. - Plaintiff was sent with a horse by his employer to do work for defendant. He was under the immediate control and direc- tion of the defendant's foreman, and while engaged in the work was injured by negli- gence of one of defendant's servants. Held, that he was not a servant of defendant so as to fall within the fellow-servant rule. Murray v. Dwight, 44 N. Y. Supp. 234. The court go on the ground that the defendant did not select and hire the plaintiff, and suggest also that Quarman v. Burn:ett, 6 M. & W. 499, indicates that the hiring of the horse with the driver puts the case on a different basis from the hiring of one's servant alone. This suggestion hardly appeals to one's reason, and the dissenting judge seems to take a better view in following Hasty v. Sears, 157 Mass. 123, and McInerney v. Ca,:al Co., 151 N. Y. 411, which hold the fact that the plaintiff was under the defend- ants control as to details to be the decisive circumstance in determining their rela- tion. This rule was followed also in a recent Massachusetts case, Samuelian v. American, &c. CO., 46 N. E. Rep. 98. BILLS AND NOTES- DESTROYED NOTE-INDEINITY.- Held, that the holder of a note which is destroyed may recover on the note without giving a bond of indem- nity. Filley v. Turner, 47 Pac. Rep. 1037 (Col.). It seems reasonable, considering the uncertainty of all proof, to require the plaintiff to indemnify the maker against any possibility of future annoyance or expense in the matter, even where the note is found by the jury to have been destroyed. This is the logical result of the reasoning in lansard v. Robinso,n, 7 B. & C. 90; see Story, Prom. Notes, 5th ed. § 449; and it is the practice in England under 45 and 46 Vict. c. 61, §§ 69 and 70; Byles on Bills, 5th ed., 392, n. It is also the law in a few Ameri- can jurisdictions, Welton v. Adams, 4 Cal. 37; Dumas v. Powell, 2 Dev. & B. Eq. 122; Irwioin v. Planters' Bank, I Humph. 145. The weight of American authority is, how- ever, in accord with the principal case. Sebree v. Dorr, 9 Wheat. 558; Palmer v. Logan, 4 111 56; Des Arls v. Leggett, 16 N. Y. 582; Moses v. Trice, 21 Grat 556. BILLS AND NOTES - EXECUTION. -In an action by payee against a surety upon a promissory note, held, that the execution of a note includes its delivery, and therefore a denial by a surety of the authority of the maker to deliver the note without the signa- ture of the co-surety is, in substance, a plea of non estfactum. Lomax v. First Nat. Bank, 39 S. W. Rep. 655 (Tex.). The court appears to have reached a sound result on the facts, but the reasoning seems erroneous on principle. The note was in effect delivered to the maker in escrow, and then in breach of the condition delivered to the payee. But it is difficult to see how it can be said that there was no delivery, and that the two essentials of execution, signing and delivery, were not present. The correct theory in such cases is that there is due execution, but that such an agreement as was made here may be a personal de- fence, effective, as in this case, because the payee had notice, and that the plea is an equitable one, and not non estfactum. On the principles adopted by the court, the settled law, that if plaintiff here had had no notice or had been a bona fide vendee of the payee, he could have recovered, can be worked out only on the theory that the de- fendant would have been estopped to deny execution. But this would throw the bur- den of establishing beonay des and value on the plaintiff, whereas it should rest upon the defendant, who seeks to avoid the effect f execution; and this is a very practical objec- tion to such a theory. See Marston v. Allen. ,' M. & W. 494; Bell v. Viscount Ingestre, 12 Q. B. 37, for forms of pleas in cases of indorsements under like circumstances. CONSTITUTIONAL LAW - EQUAL PROTECTION OF THE LAWS. - A statute of Texas provided that life insurance companies failing to pay a loss within the time specified in the policy should be liable to pay the holder twelve per cent of the amount of the loss,