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awning fell, not from any inherent defect in its origi-ber, 5 B. & S. 73, 485, “the nuisance must be one which nal construction, or from an unsound condition which is, in its very essence and nature, a nuisance at the rendered it unfit for the ordinary use for which it was time of the letting, and not something which is capaconstructed, but from an unreasonable and improper ble of being thereafter rendered a nuisance by the tenuse of it for a purpose for which it was not con- ant.” “The nuisance," says Blackburn, J., in the structed; for the uncontroverted facts are that a great case, “must be, if I may so term it, a normal number of people were crowded upon it to witness the

To the same effect will be found the law in march of a public procession through Broadway, and cases in the courts of the United States. they got onto the awning through a ball in the second In Owings v. Jones, 9 Md. 108, the defendant, a landstory of the building to which it was attached. The lord, was held liable to the plaintiff for the consehall was then occupied and controlled by a political quences of an unlawful act, in the original construcclub to whom it had been rented, and the janitor of tion of the sidewalk in front of the building, committhe club permitted the public to go through the hall, ted by him before he demised the building. The unand out of the windows, onto the awning, taking with lawful act was the making of a hole in the sidewalk, them the cbairs and benches of the hall. The lower which he covered with a sufficient grating, but withstory of the building was also at the time rented to out obtaining the requisite license from the city audifferent tenants in possession.

thorities. The plaintiff fell through the hole, and was The exact time when the premises were demised to injured, and the court held, that although the premthe tenants in possession does not appear. The only | ises were at the time of the accident in the possession evidence upon the question is the following by the de- of the defendant's tenant, the defendant was liable for fendant Shattuck: “Previous to the 9th of September, the consequences of his unlawful act; and while it is 1880, I leased the hall to the Republican Central Club true, says the court, if property not theu a nuisance is of Oakland. From July to November, 1850, I had no demised, but becomes so only by the act of the tenant, control over the hall in any way whatever." Nor is the landlord is not liable, yet where the owner leases it made to appear by any evidence what was the cou- premises which are a nuisance, or must in the nature dition of the awning at the time the building, or any of things become so from their user, aud receives rent, part of it, was let to the tenants. The sole ground he is liable. upon which the verdict and judgment seems to be On like ground, in Bellows v. Sackett, 15 Barb. 96, a founded is that the relation of landlord and terant ex- landlord was held liable for injury from the drip from isted between the appellants and the occupants of the a roof built of defective materials, where the injury building, and that it was the duty of the landlords to arose from the ordinary user of the premises. And in prevent the fall of the awuing, although the building Godley v. Hagerty, 20 Penn St. 387, and Carson v. Godwas in possession of their tenants at the time. There-ley, 26 Penn. St. 111, a landlord was held liable for infore it is contended that they, as owners and landlords, juries from the fall of buildings defectively constructed are liable to the plaintiff for the consequences result for storage, for which purpose they had been let to ing to her from the fall of the awning.

tenants in possession. The liability of the owner was But there is no proof that Maria Hillegas had any made to turn upon the question: "Did the landlord connec:ion with the construction of the awning, or permit the buildings to pass from his possession defileased any part of the building, or claimed that those cient in some particular essential to their future safety iu possession were her tenants, or received any rent when reasonably used in the business and for the purfrom any of them. In the complaint she is described poses for which they were constructed ?" It was adas the administratrix of the estate of William Hillegas, mitted that if a building, constructed with ordinary deceased, who, in his life-time, was co-owner with the care, falls from the tenant's misuse, or if the tenant defendant Shattuck of the building. But as she had had ordered the construction, inspected and accepted no connection with the construction of the awning, it, then he alone would be liable for injuries from its had not demised any part of the building, never fall. “But," says the court, “if the catastrophe results claimed that the persons occupying it were her tenants, from occult defect, * * as if the materials be inor received any rents from them, she cannot be said to ferior, etc., the landlord, aud not the tenant, would be have made herself, as administratrix or otherwise, in liable. * * The wrong consisted *

* in build
any way responsible for the continuance of the awn- | ing and renting a store for a specific purpose for
ing, even if it was a nuisan e, or for the consequences which it was unfit."
to the plaintiff from its breaking down. As to her the So in Swords v. Edgar, 59 N. Y. 28; S. C., 17 Am.
verdict and judgment are therefore unsustained by Rep. 295, a lessor was held liable for injuries to a third
the evidence. Oakham v. Holbrook, 11 Cush. 303. person, caused by the fall of a wharf which was unsafe

As to the defendant Shattuck the only question is and defective at the time he leased it, although it was
whether, as owner and landlord of the building, he is in the possession of the tenant at the time of the acci-
liable for the consequences to the plaintiff of a nuisance dent.
in connection with the building, in the possession and But it is maintained that, whatever may have been
control of his tenants. It is well settled that a land- the time of the demise to the tenants in possession, the
lord is not liable for such consequences unless (1) the awning was a nuisance per se, because it was con-
nuisance occasioning the injury existed at the time the structed over the sidewalk without license or leave of
premises were demised; or (2) the structure was in the corporate authorities, and without the sanction of
such a condition that it would be likely to become a the legislature. Bill. Mun. Corp., S 521; Wood. Nuis.,
nuisance in the ordinary and reasonable use of the $ 502. That however is the assumption of a fact which
same for the purpose for which it was constructed and nowhere appears in the case. No such issue was raised
let, and the landlord failed to repair it (Jessen v. Swei- by the pleadings, or proved at the trial. The complaint
gert, 4 Pao. Rep. 1188; Rector v. Buckhart, 3 Hill. 193; contains no allegation which expresses, or from which
Mullen v. St. John, 57 N. Y. 667; Husssy v. Ryan, 2 it could be implied, that the awning was constructed
Atl. Rep. 728; Wood Nuis., $$ 295, 676; Wood Landl. & without license or aut hority. On the contrary,
Ten. 918), or (3) the landlord authorized or permitted seemingly assuming, that it had been lawfully
the act which caused it to become a nuisance occasion, constructed, liability for the injuries occasioned
ing the injury.

by its fall was sought to be enforced against The rule of law on the subject is thus stated by the the defendants on the sole ground of negligence English courts : “ To bring liability home to the owner on their part in suffering it to be in such an unsound of real property," says Crompton, J., in Gandy v. Jub- and unsafe condition that it fell and injured the plain'




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tiff. To the maintenance of that allegation, as the any objection or suggestion of mistake to a hearing ground of her cause of action, all the evidence given and final judgment, and where the party appealiog for the plaintiff was directed. We must therefore pre- thus got the full benefit of his appeal by an unobsume that those who constructed the awning acted un- structed and full hearing on the merits in the appelder authority of law. Yet even upon that assumption, late court, it is not open to him afterward to question the law would impose upon them the obligation to the validity of the judgment, on the ground of his own keep in repair what they were authorized to erect and failure to furnish security in proper form for the prosmaintain; and if they, by neglect, unskillfully con- ecution of his appeal, as to him the judgment stands structed it, or negligently maintained it, so that it was valid and irreversible. Glazier v. Carpenter, 16 Gray, or became a nuisance, they would be answerable civi- 385; Commonwealth v. Sullivan, 11 id. 203. But if the liter in damages to a person injured by their neglect to party himself is not entitled to a reversal of the judgperform their obligation to properly erect and suffi- ment on a writ of error or review, neither can the ciently maintain it. It was upon that principle that sureties avoid it by plea and proof. There is no sugo the plaintiff's cause of action was founded and tried. gestion of any collusion or fraud on the part of the de

But there was no such cause of action made out fondant in improperly submitting to a judgement in against the appellauts; for there was no evidence that order to charge the Bureties. The provisions of the bond the awning was defectively constructed, or that it was are no more onerous than those which a recogvizance in such a condition, at the time of the demise of the would have contained. The bond contemplated prebuilding, that it constituted a nuisance, or would be cisely the proceedings which were actually had aud likely to become such in the ordinary uses for the pur- the result which was reached. The object for which poses for which the awning was constructed. On the it was giren has been fully accomplished. The liabilcontrary, it was shown by evidence, in which there ity on a bond is no greater than it would have been was no substantial conflict, that the fall of the awning on a recognizance. Execution is only awarded for so was attributable to an improper and negligent use of much of the penal sum as is due and payable in equity the awning by the tenant. It did not fall in conse- and good conscience. Pub. Stats., ch. 171, $ 10. The quence of the negligence of the owner to keep in re- judgment being valid as against the principal, there pair, as in the cases of Jessen v. Sweigert, 4 Pac. Rep. is no good ground upon which the sureties can im1188, and Burke v. Schwerdt, 6 Pac. Rep. 381. It would peach it. Fall River v. Riley, 140 Mass. 488. Mass. not have fallen if it had not been for the people that Sup. Jud. Ct., June 30, 1886.

Granger v. Parker. crowded upon it by the permission of the tenant. It Opinion by C. Allen, J. broke down because subjected to a weight too heavy for it to bear. Permitting it to be used in that way

DIVORCE — DISMISSAL “WITHOUT PREJUDICE.". was the wrongful act which made of it a nuisance, and

A decree dismissing a libel for divorce, "without as a nuisance it was created by the tenant, and the ten

prejudice,” even after the evidence has been beard, is ant alone is liable; the landlord is not, unless he is

not a bar to a new libel for the same cause. The shown to have participated in the wrongful act by au

general practice has obtained in this country and in thorizing or permitting it to be done. A landlord,"

England, when a bill in equity is dismissed without a says the Supreme Court of Massachusetts, “is not re

determination of the merits, for the purpose of giving sponsible to other parties for the misconduot or inju

the complainant the right or privilege in his election rious acts of his tenants to whom his estate has been

to take further legal proceedings upon the subjectleased for a lawful and proper purpose, when there was

matter of the controversy, for the court to exno nuisance or illegal structure upon it at the time of

press in its decree that the dismissal is without the lease. Sultonstall v. Banker, 8 Gray, 195. See also

prejudice. When a dismissal is so qualified it Mellen v. Merrill, 126 Mass. 545; Leonard v, Storer, 115

is never regarded or treated as an adjudication Mass. 86; 8. C., 15 Am. Rep. 76; Wood Nuis. 79, 80, 142.

of the merits of the subject-matter between the Judgment and order reversed, and cause remanded

same parties. Freem. Judg. 270: Borrowscale v. Tutfor a new trial.

tle, 5 Allen, 377; Bigelow v. Winsor, 1 Gray, 301; We concur: Morrison, Ch. J.; Ross, Myrick, Sharp

Foote v. Gibbs, id. 412; Sewall v, Eastern R. CO., 9 stein, McKinstry, JJ.

Cush. 5; Peripe v. Dunn, 4 Johns. Ch. 140; Neafie v.
Neafie, 7 id. 1; Walden v. Bodley, 14 Pet. 156; Parish
v. Ferris, 2 Black, 606; Hughes v. U. 8., 4 Wall. 237;

Durant v. Essex.Co., 7 id. 107; Woollam v. Hearn, 7

Ves. 211, b; Lindsay v. Lynch, 2 Sch. & Lef. 10: Stev

ens v. Guppy, 3 Russ. 171; Coop. Eq. Pl. 270; 2 Dan. CISIONS.

Ch. Pr. 993-5; Mills v. Mills, 18 N. J. Eq. 444; Gove v.

Lyford, 44 N. H. 525. No authority has been brought APPEAL- UNDERTAKING - RECOGNIZANCE - SURE- to the attention of the court which entertains a differTIES.- A party giving a bond to perfect his appeal ent view. Cases may at times be so peculiarly circumfrom a District to the Supreme Court, pursuant to an stanced after full hearing of the evidence, even as to order of the District Court, in an action in which make it manifestly equitable and proper for the court, that court had full jurisdiction, may not, after final in order to prevent probable injustice being done, to judgment, object that the form of the security should dismiss the proceeding without prejudice. The power have been by recognizance instead of by bond, and the of the court in such cases, after hearing the evidence, boud will be held valid both as against the principal to enter up such a qualified judgment is fully recogand the sureties. But where the objection to the jur- nized in Hepburn v. Dunlop, 1 Wheat. 179. Courts of risdiction in a civil action rests simply on the ground law, in the exercise of their special jurisdiction of that the party appealing did not give security for the hearing and determining libels for divorce, are propprosecution of his appeal in the proper form, but gave | orly given as great discretion as courts of equity in a bond instead of a recognizance, where there was no equity proceedings. The precedents uniformly show actual requirement to adopt the particular form of a that the discretionary power of courts in divorce probond, where the conditions of the bond are the same, ceedings, in continuing causes and ordering and enterwhich are prescribed by statute, and it is not apparent ing of final decrees against libellants is very large. A that any injury can have resulted from the substitu- suit for divorce is different in character from a prition of a bond in place of a recognizance; where no vate action in which the personal rights of the parties suggestion of a mistake in this respect was made in alone are concerned. It is one in which the public the appellate court, but the cause proceeded without have an interest, and in the conduct and result of

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which the best interests of society are concerned. The that time had been given by the holder to the acrights and interests of society and the public, as well ceptor, but apprehending that he was still liable on as of the parties, are in a measure involved in each the bill in default of the acceptor, three months after libel, and must not be overlooked. This of itself is it was due, said he knew he was liable, and would pay sufficient reason for the courts exercising this jurisdic- it if the acceptor did not, and it was held that he was tion with great discretion, and in modes unknown to bound by the promise. S.C., 2 Camp. 332. The unithe common law, and in paying little attention to the versal rule is ignorantia juris non excusat, the word jus strict rules of pleading applicable to common-law being used as denoting general law-the ordinary law cases. Such is the procedure in divorce cases, not of the land-and not a private right. 1 Benj. Sales, only in this State, but in Massachusetts, New Hamp- $611. The cases that hold that money paid in iguoshire, Maine aud several other States where jurisdio- rance of the law is not recoverable are analogous. tion in divorce proceedings is given to courts of law. Brisbane v. Dacres, 5 Taunt. 144; Clarke v. Dutcher, 2 Bish. Marr. & Div. 767; Thurston v. Thurston, 99 9 Cow. 674. Any act that is a detriment to the plainMass. 39; Brown v. Brown, 37 N. H. 536; Ashmead v. tiff is a sufficient consideration for a promise to pay Ashmead, 23 Kans. 262; Vance v. Vance, 17 M. E. 203. money. Williamson v. Clements, 1 Taunt. 523. It was In Thurston v, Thurston, 99 Mass. 39, it was held that a detriment to the plaintiff to give up the old note, as "in libels for divorce the usual form of a final decree it was good against Brown; and the fact that Brown against a libellant is that the libel is dismissed. In was insolvent makes no difference, for the note must this respect it is like a decree against a plaintiff in be taken to have some value, and a small consideration equity. If it is not intended to be a bar to a new libel | will support a larger promise. Hitchcock v. Caker, 6 for the same cause the decree is that it be dismissed A. & E. 438; Creswell, J., in Southall v. Rigg, 11 C. B., without prejudice.” Such is the recognized rule of 381, 494; Denman, C. J., in Haigh v. Brooks, 10 A. & practice in this State; and when the libel is, in the E. 309; Harrington v. Wells, 12 Vt. 505. In Shortside discretion of the court, dismiesed without prejudice, v. Cheek, 1 A. & E. 57, the giving up of a note against it is not a conclusive adjudication on the merits, nor a third person was held to be a sufficient consideraa bar to a new libel for the same cause. The same tion from a promise to pay the amount of it. Parke, rule of practice is followed in New Jersey. Mills v. J., said: “There is no doubt that the giving up of any Mills, 18 N. J.Eq. 444. The court in its discretion may, pote on which the plaintiff might sue would be a suffiafter hearing the evidence, continue the cause to an- cient consideration." In Haigh v. Brooks, 10 A. & E. other term of court for the purpose of giving oppor. 309, tbe consideration for the promise was that plaintunity to procure further evidence, which the court, tiff gave up to the defendant his guaranty on behalf in the discharge of its duty to the public and the par- of a third person; and it was contended that the guarties, deem ought to be heard; or if the evidence de- anty was void for not expressing a consideration ou velops such a peculiar state of circumstances as satis- | its face, and that therefore the giving of it up constifies the court, in view of such duty, that a bill of di- tuted no consideration for the promise. But without vorce ought not then to be granted, and that a dismis- deciding whether the guaranty could have been made sal of the libel ought not to be a; bar to another libel available or not, the Queen's Bench gave judgment for for the same cause, it may in its discretion dismiss the the plaintiffs on the ground that they had parted with libel without prejudice. Such a qualified dismissal something they might have kept, and the defendant cannot be attacked collaterally, nor can the reasons obtained that which he desired by means of his promof the court for making such an order of dismissal be ise; that both being free, and able to judge for theminquired into in a second libel for the same cause. It selves, the defendant would not be justified in breakis all within the judicial discretion of the court to ing his promise on afterward discovering that the which the petition for divorce is addressed. Vt. thing in consideration of which he made the promise Sup. Ct., July 1, 1886. Burton v. Burton. Opinion by did not possess the value he supposed it did. The ExWalker, J.

chequer Chamber affirmed that judgment, both ou the NEGOTIABLE INSTRUMENT - COPARTNERSHIP - IN

ground that the guaranty might have been made good DORS ER-NOTICE OF PROTEST.--

:-A notice to a member by explanatory evidence, and on the ground-Maule, of a firm, indorsers of certain promissory notes, that J., doubting—that the actual surrender of the possesthe makers have on demand refused payment, is good sion of the paper to the defendant was a sufficient con

sideration without reference to its contents. it sent to what had been the place of business of the

Opinion by firm, where its affairs are actually in process of settle-Ct., July 19, 1886. Churchill v. Bradley. ment under a trust deed of assignment, the firm being

Rowell, J. insolvent; it being the place where the member ex- RAILROAD-FAILURE TO STOP AT STREET CROSSING. pected that notices and letters would be sent to -The failure of a locomotive engineer to bring his him, and had arranged that if sent there they train to a full stop at a street crossing, on discovering should be handed to his counsel to be forwarded to that an approaching team is frightened, is negligence. him, and there was no other place of business of the | The defendant was not in the legitimate use of the firm, or of the member, and he had absconded. And crossing at the time of the accident, and that use innotice so sent is good, although the court finds that volved the plaintiff in danger, avoidable by the dethe member's family was residing in a town which was fendant postponing its use of the crossing for a few the member's domicile, because he intended to return moments. The supreme and first use of a street is for there when he thought he was safe from arrest. Mass. the ordinary travel over it-the right of a railroad to Sup. Ct., July 3, 1886. Bank of America v. Shaw. operate its trains across it is subordinate to the use by Opinion by Field, J.

the general public. Tex. Sup. Ct., June 1, 1886. Hous

ton & T. C. Ry. Co. v. Carson. Opinion by Robert-CONSIDERATION-IGNORANTIA JURIS.--The sur. render of an old promissory note is a sufficient consideration for a new one executed by a gurety, although SALE-IMPLIED WARRANTY-SALE the surety had been released from payment of the old SPECIFIED NAME.-In the sale of goods of a kind specinote by the action of the insolvent principal, where | fied by name there is no implied warranty that the both parties knew the substantial facts, but being ig- goods bargained for are of a quality suited for any parnorant of the law, in good faith supposed the surety ticular use. The evidence on the part of the plaintiff was liable for the old note.' In Stevens v. Lynch, 12 tended to prove that the coal was more suitable for the East. 38, tbe drawer of a bill of exchange, knowing | manufacture of glass than was that which is described

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Vt. Sup.

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as “the run of the mine," and that both sorts were well settled that when & known, described and defined
furnished by the defendant. The plaintiff also offered article is ordered, even of a manufacturer, although it
proof in relation to the nature and extent of tbe dam is stated to be required by the purcbaser for a particu.
age to the glass caused by the use of the inferior coal. lar purpose, and if the kuown, described and defined
The evidence on the part of the defendant tended to thing be actually supplied, there is no implied war-
prove that the coal delivered to the plaintiff was Key- ranty that it shall answer the particular purpose in-
stone coal, fine, and the “run of the mine," and was tended by the buyer. In such case the purchaser takes
not inferior to other coal of that description. It will upon himself the risk of its effecting its purpose.”
be perceived that by the terms of the contract there Rasin v. Conley, 58 Md. 65. In the case now under
is no express warranty with respect to the quality of consideration the contract was for the sale and deliv-
the coal. In England the older decisions enunciate ery of Keystone coal, either fine or the ran of the
the general principle that the seller is not liable for de mine, and it was not even specified in the contract
fects of any kind in the thing sold unless there is an that the coal was to be fit for any particular purpose.
express warranty or fraud on the part of the seller. A The evidence of the plaintiff shows that the coal re-
sound price is not tantamount to a warranty of the ceived from the defendant was the kind of coal de-
quality of the thing sold. Harvey v. Young, Yelv. 21; scribed in the contract. Md. Ct. App., June 24, 1886.
Parkinson v. Lee, 2 East, 322. In Hall v. Conder, 2 Warren Glass Works Co. v. Keystone Coal Co. Opin-
C. B. (N. S.) 40, it is said that "the law is quite firmly | ion by Yellott, J.
established that on the sale of a known ascertained


- WATERarticle there is no implied warranty of its quality.” It is true that in soine cases there may be what is termed to build a mill, and the privilege to draw and use the

WHEELS-USE OF-RESERVATION.-A grant of a right falso demonstratio, as in the sale of goods by samples; and it has been beld that under a contract to supply said mill”--the grantor reserving the right "to the

water from a mill-pond "for the purpose of carrying goods of a specified description, which the buyer has had no opportunity of inspecting, the goods must not iug-mill and three breast-wheels,” with the machinery

use of sufficient water from said pond to carry a fullonly in fact correspond to the specific description, but connected with the same-does not restrict the grantor must be salable or merchantable under that description. But no such case is presented by this record. quantity of water suficient to carry three breast

to the use of breast-wheels, but limits bim to "the The contract was for Keystone coal, fine coal, and the run of the mine, and the plaintiff's evidence shows

wheels.” Mass. Sup. Jud. Ct., July 3, 1886. Coburn v.

Middlesex Co. Opinion by Field, J. that it received coal corresponding to this particular description. The contract specifies Keystone coal,

WILL - BEQUEST – GRANDCHILDREN OF TESTATOR "fiue, and the run of the mine," aud there is nothing

TAKING BY PER CAPITA.--A testator,after making proelse in its terms to indicate the quality contracted for. vision for his widow, bequeathed a certain portion of When delivered at the place designated, the plaintiff his estate to his executors, as trustees, to pay the incertainly bad ample opportunity to ascertain the

come to his two sons J. and F. in equal shares during quality by an inspection. There is therefore no four-their lives, and on the decease of either, leaving po dation for an implied warranty, and the authority of

children or wife, the reversion to go to such children Joues v. Just, L. R., 3 Q. B. 197, is applicable to the and wife. The third clause of the will provided that case presented by this record. It is true that at least if J. and F. “leave no issue, then my will is that said in two of the States the doctrine of the civil law, that reversion, in both cases or either case, shall go to all a sale for a sound price implies a warranty of the my grandchildren in equal shares, as hereivafter prothing sold, was at one time recognized and adopted.

vided with reference to other portions of my estate." Bailey v. Nickols, 2 Root, 407; Whitefield v. McLeod, A subsequent clause in the will provided that certain 2 Bay, 380. But in most of the States this doctrine other portions of the estate should be given to J. and has been repudiated. In Seixas v. Woods, 2 Caines, 48, F., and with the same disposition of the reversion aud Kent, J., adopting the language of Sir Edward Coke, remainder to their wives and children as provided says that “by the civil law every man is bound to war- in the said third clause; and if they should leave no rant the thing he selleth, albeit there be no express

wife or children, “then equally to all my grandchilwarranty; but the common law biudeth him not, un- dreu that may be living." Held, that upon the death less there be a warranty in deed or law." And in a of J., leaving no wife or children, that all the grandlater case the same court decided that “there is so im. children of the testator were entitled to have the plied warranty in a general sale that the quality shall

share of J., held by the trustees, divided among them be equal to the price.” Hart v. Wright, 17 Wend. 269. per capita, and that the fund was not to be divided per In Mixer v. Coburu, 11 Metc. 561. Chief Justice Shaw stirpes. Held also, that the words “that may be live says: “ The defendant contends that there was an im- | ing" meant “living at the death of J. or F.” Mass. plied warranty on the sale that the goods were mer

Sup. Jud. Ct., July 3, 1886. Morrill v. Phillips. Opinchantable and sound. But we think this position can

ion by Morton, C. J. not be maintained. The rule of the common law is

ANNUITY APPORTIONABLE INTEREST well established that upon a sale of goods, if there is TAXES. — The will gave $1,000 to the testator's wife; no express warranty of the quality of the goods sold, also "the whole iuterest and income of $6,000, to be and no actual fraud, the maxim caveat emptor applies, paid to her each and every year during her life;" and and the goods are at the risk of the buyer.” The cita- so much of the $6,000 itself as shouid be required to tion of authorities supplied by the decisions in other support her in a manner becoming her station in life, States would seem to be unnecessary, as in Barnard v. if the “said interest or income" should prove insuffiKellogg, 10 Wall. 383, the Supreme Court of the United cient to effect that purpose, and then provided that States ays: “Of such universal acceptance is the doc- the personal estate should be sold or reuted “to raise trine caveat emptor in this country that the courts of funds to pay debts, legacies and expenses." Held, all the States in the Union where the common law that the widow was entitled to the whole of the inprevails, with one exception, sanotion it." The rule

come and interest, without deduction of taxes or excaveat emptor has always received the sanction of the

penses. An annuity given to a widow in lieu of dower courts in this State. Hyatt v. Boyle, 5 Gill & J. 120; is apportionable, and payable for a part of a year to Gunther v. Atwell, 19 Md. 171; Rice v. Forsyth, 41 id. the time of the annuitant's death. Vt. Sup. Ct., July 404. And in one of the latest cases in which this 19, 1886. Matter of Cushing's Will. Opinion by Veaquestion was presented the court said: “The law is zey, J.

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The Albany Law

and who was ignorant alike of the art of the Law Journal.

troubadour and the weight of a coat of mail.”

Speaking of the crazy queen Christine, he says: ALBANY, SEPTEMBER 18, 1886. “Her reputation as a murderess did not make her

so unwelcome as her character as a bore.” She CURRENT TOPICS.

“possessed a considerable amount of miscellaneous

information, which was perhaps extraordinary in a THERE is no reading more entertaining than

monarch, but would have been very superficial in a

subject.” Of Mad. de Longueville, a Condé, the ing for lawyers is Mr. James Breck Perkins' new

mistress of Rochefoucauld, who becoming penitent history of “France under Mazarin, with a review

after losing her power, retired to a convent: “The of the administration of Richelieu.” This work next year, wishing to do still more penance for her gives a rapid but very comprehensive view of the past sins, she returned to her husband in Norevents of Richelieu's administration, without add- mandy, and lived with him till his death.” Of the ing much to our former stock of information, or

Elector of Saxony he says, “his piety was such presenting the wily, intrepid and unscrupulous car

that on the days when he received the communion dinal in any new light. But the main topic, the

he never got drunk in the morning.” Again : It administration of Mazarin, is treated with consider

was felt that the right to beat one's peasantry, ocable fulness, and the writer has had the advantage casionally, ran with the land.” We can heartily of some new sources of information, particularly commend these volumes as a learned, dignified, the carnets, or note-books of the minister, in

wise and entertaining contribution to French his-
which he set down his inmost thoughts and his real tory by an American scholar.
designs and opinions. Mr. Perkins also convinces
us that Mazarin was the favored lover of the regent,
Anne. These two great cardinals unintentionally Those gentlemen who believe that nobody can
did a great deal toward bringing about the fall of ever tell what any statute means will feel great joy
monarchy in France by depressing the nobles and over the disagreement between the Court of Appeal
exalting the crown to absolutism, until the inevita- and the lord chief justice in respect to the con-
ble result was the rising of the oppressed people struction of the statute which provides that costs
against the king a century later. These volumes shall follow the event unless the trial judge shall
will convince the reader that the world is better “for good cause otherwise order." The lord chief
than it used to be, despite the contrary opinion of justice takes this to invest the trial judge with an
some gloomy religionists. There certainly never absolute and conclusive discretion; and on the
was a viler and more despicable people or era than other hand the Court of Appeal treat the existence
those here depicted. It was the age


virtue of good cause as a question of fact, and subject to and uneasy vice. Everybody was false, faithless, review. Non nostrum tantas componere lites, but here venal, greedy, cruel, licentious, debauched, unpatri- our courts would probably say that the matter was otic

women as well as men, and the women rather reviewable only for a manifest "abuse of discrethe worse — the only restraining characteristic was tion.” The lord chief justice argues that “ good timidity, and the only alleviating characteristics implies opinion and a moral judgment, as to which that we can recall were the bravery which has al- opinions will widely differ, and rather satirically ways been common to Frenchmen, and the wit observes that “it is desirable to treat it as a queswhich has been the possession of many. Mr. Per- tion of fact only if it is wished to multiply appeals, kins' style is not remarkable, but it is by no means and to introduce the interesting element of tertain dull or heavy, and is occasionally enlivened by uncertainty into the otherwise strict and certain some touches of antithesis and sly humor. His ac- science of the law,” and he concludes his judgment count of the development of the French judicial | in Huxley v. West London Extension Ry. Co., 17 system will be of peculiar interest to lawyers. The Q. B. Div. 373, with the following lively remarks: first judges were the nobles, but judicial duties be- “I make no apology for the strength of some of coming irksome to them they called in clerks, the expressions which I have used. If I have learned in the law, to act as advisers. The ad-spoken strongly it is because I have felt strongly. visers and assistants,” says Mr. Perkins, in time It cannot be necessary to disclaim all intentional became themselves the judges.

They became the offense. For the Court of Appeal I have, as every bombazine for the ermine. To hear prolix discus-lawyer must have, deep and genuine professional sions of Latin texts which they could not under- respect. But I think that in their recent decisions stand, containing rules of law which they could not on this matter they have unnecessarily, and therecomprehend, was repugnant to gentlemen who did fore mischievously, interfered with the discretion not wish to exchange their swords for inkstands. of the judges. I do not speak of their dignity and It was not pleasant for a gentleman longing for the independence. These are personal, and may exist chase or the tournament to listen to a tedious and and be displayed as well by the youngest magisconfusing trial, only to become in his decision the trate of the smallest borough as by the lord chanmouthpiece of some black-gowned student of Bo- cellor himself. But I speak of an interference logna, who did not know the first rules of venery, which, if unnecessary and uncalled for, is a practi

Vor 34 No 12

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