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a person who was under age without due publica- to inculcate that respect for the highest judicial tion of banns, penal servitude for life on a boy for tribunal of the country to which it is entitled by its attempting to extort money by threats of false ac- position, its history and the purity, abilities and cusation, and eighteen months' imprisonment of the learning of the judges. This may be done, and young man called Rowden, or Rawden, for falsely ample room will be left for free and enlightened publishing in a newspaper that he was engaged to criticism of its decisions. It is a reasonable expecmarry a young lady of high rank, are really a group tation that the law will be finally settled in such of sentences which must excite amazement in the a way as to reconcile complete protection of corpoordinary mind. Indeed, when we compare them rate rights and vested interests with the unimpaired with the punishments often awarded by judges for exercise of the soverign powers of the State. The offenses complicated with violence, they would ap- majority of the court regard that as even now acpear to be eccentric, and passed with a view to in-complished, but as to this there is a wide difference vite the interference of the home secretary.” Down of opinion. One of the judges, who has most strenin Texas, as we may have remarked before, they uously resisted the doctrine that the taxing power sometimes punish a man more for stealing a mule can be restricted by charter-contract, predicts that than for killing a man; but then perhaps the mule it must be finally abandoned. Whether this can be is worth the more. All this matter of sentences done without overthrowing the whole system of dedepends on the magistrate's digestion. If he makes cisions is doubtful; because, as we have seen, the a good breakfast, and his wife has not nagged him, taxation cases are those wherein the principle that the criminals get the benefit. Sometimes we are a charter is a contract has been most frequently and inclined to believe in the practice of letting the explicitly affirmed. If the principal case is not rejury assess the punishment. It may be that one versed, still less is it probable that the remedy sugman is as little fit 'to decide continually on the gested by the most earnest of its opponents, an measure of punishment as he is to pass upon dis- amendment of the Federal Constitution, will be atputed questions of fact.
tained. It would be resisted by all the power
of corporations, and such a measure could not be en
acted unless by practical unanimity of all public inThe Dartmouth College Case is the subject of a terests, and general concurrence of professional and thoughtful essay by Mr. William P. Wells
, of De- public sentiment. If the aims, the ambitions, the troit, presented at the last meeting of the Ameri- independence of corporations should continue to be can Bar Association, and now printed in pamphlet aggressive, and become dangerous to the public Mr. Wells starts out with contrasting the opinion welfare, remedies must and will be found.” of Chancellor Kent, written in 1826, with that of Judge Cooley, written fifty years later, which go far to warrant his own deduction that the decision
NOTES OF CASES. was originally well founded in principle, but that the march of corporation legislation and adjudica-In People v. M Neal, Michigan Supreme Court, tion has left it practically out of sight, or at least
Oct. 211886, Morse, J., expressed the followgreatly diminished in the perspective. Mr. Wellsing views in regard to the construction of ballots
, stands by the dissenting opinions in the Railroad in which we heartily concur: “I cannot let this ocCommission Cases, 116 U. S. 307. He concludes: casion pass without expressing my dissent from the “It is idle for the profession to ignore the serious doctrine laid down by this court in People v. Tischarge that by reason of the decision in the Dart- dale, 1 Doug. 59, and since reluctantly followed in mouth College case corporations possess almost sov- People v. Higgins, 3 Mich. 433, and People v. Cicott, ereign powers, and that the doctrine of an inviola- 16 id. 283, that a ballot containing the initials only ble charter-contract has suspended, in their favor, of the given names of a candidate cannot be the exercise of the sovereign powers of the State.counted for him. It is at variance with the rule in This charge must be met according to its gravity; almost all the States of the Union, and there is no it must be considered whether the need of restraint
sense or justice in it. When James A. Dger and upon corporations is increasing or diminishing, and one or two other persons of entirely different names where the remedies for corporate abuses and ag- are running for the same office, every one at once gression are to be found, if required. But this in- knows that a ballot cast for J. A. Dyer is intended, quiry will not be prosecuted, either in the legal without doubt, for James A. Dyer. If so, why not profession or in the judicial tribunals, in any spirit count it as the voter meant it should be counted? of undiscriminating enmity to corporations. The Under the rule thus established in 1 Doug., many incalculable benefits they have conferred upon the men have held and enjoyed the honors and profits country, the great work they have performed in its of offices to which they were never elected by the progress and development, are manifest. The le people, and to which they and everybody else knew gal profession can do much to influence and guide they were not elected; and men who were really public opinion; to show that the demand for the elected have not been permitted to qualify and enreversal of the Dartmouth College case is impracti- ter upon the duties which the majority of the eleccable; to maintain the integrity and permanence of tors intended they should perform. In the case of principles which are, to say the least, settled law; | People v. Cicott, Judges Christiancy and Graves
both adhered to the decision in People v. Tisdale, 1 uel Tobey, and the will of the voter been expressed. against their own opinion of its justice or sound. As it is, he has also been deprived of his vote for ness, because they did not think it wise to disturb supervisor. It happens in this case that the disthe precedent so long esta shed. Judge Cooley enfranchisement of two electors does not alter the expressed himself strongly against the reason and result, although both are deprived of their votes justice of the rule, and regretted that the other for supervisor, and each of the two candidates lose members of the court would not join with him in à vote. But there are plenty of cases where the overturning it. Most men are as well, if not bet-loss to the elector of the franchise is also a loss to ter, known by their initials than by their full another of an office, which in right and justice, he
The signature of any officer to any judicial ought to hold. In People v. Kennedy, 37 Mich. 67, document, by the initial letters of the first or given this court took a step in the right direction in denames, is just as valid and effectual in this State as claring that a ballot cast for John Jochim was prethe full name. There is no sound reason why a sumptively intended for John W. Jochim, when it vote for J. A. Dye should not be counted for did not appear that there were two persons named James A. Dyer, in a case where no other J. A. Dyer John Jochim in Ishpeming. Applying this newer is a candidate, or living within the district covered and better doctrine to the case at bar, and it by the office. The rule established in this State not appearing that there was a person by the name has but one effect, to-wit, to deprive, in many cases, of Samuel Toley, and it expressly appearing there the rightfully elected officers from taking posses- was not in Byron, the vote should have been sion of the office to which the electors have chosen counted for Samuel Tobey. When we all know, him, thus defeating the will of the people. Be- from the ballot itself, that it was intended for Samlieving in the right of the people, at all times and uel Tobey, no amount of theorizing that it might in all places, to have their ballots counted fairly as some time happen that there would be two men of cast, in my opinion, the ballot, wherever the name the same initials, who might be running for the Charles R. Stewart, the prohibition candidate for same office, and yet have different full names, or supervisor, was erased, and the name Byron McNeal that there might some time be a Samuel Toley pitwritten opposite the words ' for supervisor,' should ted against a Samuel Tobey for office, can excuse or have been counted for McNeal. The erasure of the justify the plain violation of the spirit of the law, words 'for supervisor upon this ballot was evi- and the deprivation of the right of the elector to dently a mistake, and it is plain upon the face of bave his ballot counted as he intended, when that the ballot itself that the voter intended to vote for intention is clear beyond cavil. A bad precedent McNeal for supervisor. No one having common should not always be followed.” sense and intelligence enough to perform the duties of an inspector of elections could fail to know, and be satisfied, by a mere inspection of the ballot, that In City of Louisville v. Weible, Kentucky Court of the man who deposited it in the box meant to vote Appeals, Sept. 30, 1886, it was held that where a for McNeal for supervisor. It needed no extrinsic | party contracts with a city for the exclusive right evidence to ascertain the intention of the voter, but to remove the carcasses of all dead animals, and to under the technical ruling of the Circuit judge, in- use its public streets for this purpose, the law will fluenced probably by the decisions in Pemple v. T'is- protect him in his monopoly, and the work cannot dale, the intent of the voter, which is as clear as noon- be engaged in by others as a general business enday, is defeated, and he is deprived of the right of terprise. The court said: “It is contended in besuffrage. It is also clearly apparent that the writing half of appellant that as the removal of dead ani. which the judge read Samuel Toley was meant for mal carcasses from the city, and the disposal of Samuel Tobey. Every inspector knew, when the them, is one of the police powers of the city necesvotes were counted, that there was no man by the sary to be exercised at all times to preserve the pubname of Samuel Toley in the township of Byron, lic health, comfort and cleanliness of the city, she and that the vote, if not really written Samuel has no legal power to limit or surrender its control Tobey, was certainly intended to be so written. | by contract over that subject, or kindred ones, beThe Circuit judge, as well as all the members of this yond her recall at pleasure. The State has never court, know for whom the ballot was intended, surrendered its power — sometimes called its' poand it is simply a perversion of justice to be scan- lice power,' but more properly its sovereign power ning with the naked eye, or exploring with a mi-- by which it controls, through its municipalities croscope, to find the lack of a loop in a letter to de- and other agencies, within certain limits, everyfeat the known will of an elector. Common sense thing within its territorial limits relating to the applied to the counting of votes is better than the welfare of its people. In the exercise of that power technical theories and distinctions laid down in it creates and controls educational and charitable some of the law books. If it had not been for this institutions, and provides for the establishment of decision in People v. Tisdale, if no law had been re- public highways, canals, wharves, ferries, and also sorted to or known by the inspectors, but the plain, the public health, public morals, and public safety, honest men constituting the board had followed and almost numberless other things. These powthe plain dictates of their own good sense and jus- ers she has, and exercises in absolute right, except tice, this ballot would have been counted for Sam- as limited by the Federal Constitution, or by her own fundamental law. She may also, in the exer- carry them out under his contract, provided howcise of her powers, grant 'exclusive separate pub- ever such new regulations were not inconsistent lic privileges in consideration of public services.' with his essentiel rights under the contract, or if it She may also grant special or private privileges to became necessary to recall the contract in toto, in certain individuals, provided the rights of others order to prevent a nuisance arising from carcasses are not affected by it. She has the right to confer in the city, then the city had the right to recall it. upon cities and towns, as integral parts of the State, Those powers are inherent in the city, upon the the exercise of such of these powers as may be fundamental principle of necessity, and consequent deemed necessary, prudent, or expedient for their duty of protecting the pnblic health of its citizens, local welfare and comfort. She may also grant to which it is the duty of its employees to yield. many exclusive privileges to persons and corpora- But to allow the city to disregard or recall its contions, also relinquish many of her powers. She may tract with its contractors, or employees engaged to also recall them at pleasure, except when the person service by fixed terms, upon its mere caprice, or to to whom the grant is made proposes to render a gain a pecuniary advantage, would be the exercise public service in consideration thereof; or when, in of an arbitrary power that does not exist in the case of the grant of a special private privilege, the land." person to whom the grant is made proposes, in consideration thereof, to engage in some enterprise that care and caution to preserve the premises from dam- to a traveller upon a public highway or walk, and the age or injury by fire or otherwise. There were also a defect complained of is either in, or in close proximity number of other rooms in the building occupied for to such highway or walk; as in Inhabitants of Milford stores and other purposes; and all were, on or prior to v. Holbrook, 9 Allen, 17; Readman v. Conway, 126 November 22, 1884, in the possession of tenants. The Mass. 374; Brown v. Weaver, 5 Atl. Rep. 32. The rule only means of access into said Armory Hall was seems to be well settled, that in the absence of any through a double door, on the south side of said build- secret defect or deceit or warranty or agreement on ing, opening immediately into a stairway leading to the part of the landlord to repair, the tenant takes the the second floor, where there was a hall-way, and leased premises in the condition they happen to be in from thence by another stairway, leading to the third at the time of the leasing, and that in such case the floor and thence into Armory Hall; and said stairways landlord is not liable to the tenant for an injury caused and balls leading to said Armory Hall were for the by the premises being out of repair during that term. common use and convenience of said Guards and other
LANDLORD AND TENANT-DEFECT IN PREMISES he would not or could not have otherwise done — -LIABILITY OF LANDLORD TO REPAIR. then such grants or privileges, public and private, become contracts for a sufficient consideration, and
WISCONSIN SUPREME COURT.
SEPTEMBER 21, 1886. cannot be impaired by any subsequent act of the State. The power to protect, through her cities
COLE V. MCKEY.* and towns, and other public agencies, the public
In the absence of any secret defect, deceit, warranty, or health, the public morals, and the public safety, can
agreement on the part of the landlord to repair, he cannot be relinquished or surrendered, for the govern- not be held liable to the tenant, or any one rightfully oc. ment is bottomed upon the fundamental principles, cupying under him, for an injury caused by the leased promotion of the peace, safety, happiness and se- premises getting out of repair during the term, unless it curity of its citizens. Therefore any surrender of
be by reason of his own wrongful act, or failure to per
form a known duty. This principle extends to cases its power to protect the public health, the public
where premises are leased to several tenants, and the in. morals, the public peace, the public safety of the jury has been caused by a defect in parts used by all of citizen, would violate this fundamental principle, them in common, like halls and stairways and tend to revolution and anarchy. The power
Where a landlord has been guilty of some wrongful act or therefore cannot be surrendered. The State how
breach of positive duty in not repairing leased premises,
he is not liable for an injury caused thereby to one occuever, and its municipalities intrusted with the exe
pying the premises without rightful authority, as to & cution of this power, may provide the means of pro- subtenant in possession contrary to the terms of the orig. tecting the public health; it is its duty to do so. Any means may be adopted that will effect that end; such as employing competent and trusty per
APPEAL from Circuit Court, Rock county. sons to take the matter in charge, under the super- July 15, 1884, in pursuance of an oral agreement vision and control of the State or city. Here the made about May 1, 1884, the defendant, in behalf of appellant did not surrender her right to the control himself and others, constituting, the McKey heirs, but of the public health of the city in the removal of
in his own name, and in writing, and upou the condidead animal carcasses, etc.
She exercised that
tious, conventions, covenants, provisos, and reserva
tions therein contained, leased to the Beloit City right, as her admissions show, in an efficient and
Guards, by S., B. and A., the hall known as Armory provident manner, She contracted with appellee, Hall, in the third story, and three rooms in the second for a sufficient consideration, that he, for the pe
story fronting on State street, in the McKey block, riod of five years, should have the exclusive privi
situated on the corner of State and Broad streets, in
the city of Beloit, for the term of two years from May lege of performing that duty for her, and on her
1, 1884, at the rate of $175 per annum, payable monthly behalf. This he did faithfully and efficiently. in advance, “ to be used for the usual purpose of a There existed no cause of complaint on the part of drill-room and dancing-hall.” The said Guards, in the city. Appellee kept the city promptly cleared and by said lease, in effect covenanted and agreed to of carcasses, and no nuisance was allowed to occur ‘pay rent in the manner aforesaid, and deliver up the from them. But the city, without just cause, or
said premises, together with the appurtenances, there
unto belonging," peaceably and quietly, at the expiany cause of complaint, capriciously tired of its
ration of said term, in as good condition and repair as contract, and proposed to break it.
This she could the same were then, or might be put into by the lesnot do. If appellee had failed to comply with his sor, inevitable accidents, reasonable use, and natural contract then the city would have the right, by or- wear and decay excepted; and further, that they dinance, to recall it, or if it became necessary, in
would not do or suffer any waste in said premises;
that they would use the same for the above purpose the exercise of the reasonable judgment of the city,
only; that they would not underlet the same, or any to establish new regulations, for the purpose of part thereof; that they would not assign said lease, or more effectively preventing a nuisance arising from any interest therein; that they would observe special them, she had the right to require the appellee to
*S, C., 29 N. W. Rep'r, 279.
Hart v. Windsor, 12 Mees. & W. 68; Keates v. Earl of tenants occupying said building, and such other per- Cadogan, 70 E. C. L. 591; Doupe v. Genin, 45 N. Y. 119; sops as had lawful right to enter said building.
McAlpin v. Powell, 70 id. 126; Edwards v. N. Y. & H. It appears from the evidence that about November R. R. Co., 98 id. 245; Dutton v. Gerrish, Cush. 89; 1, 1884, the plaintiff went to Beloit to visit the family Woods v. Naumkeug S. C. Co., 134 Mass. 357; 8. C., 45 of her son-in-law, W. D. Wangor, living at that place. Am. Rep. 344; Bowe v. Hunking, 135 Mass, 380; S. C., Soon after November 1, 1884, Wansor, without the 46 Am. Rep. 471; Brewster v. De Fremery, 33 Cal. 341; knowledge or consent of the defendant, or any of the Krueger v. Ferrant, 29 Minn. 385; 8. C., 13 N. W. Rep. owners of the block, rented Armory Hall of the City 158; IIumphrey v. Wait, 22 U. C. C. P. 580; Wood Guards for the purposes of a skating-rink. He adver- Landl. & Ten., $ 382. So it seems that the rightful tised it to be opened as such on the evening of No- subtenant, servant, employee, or even oustomer of the vember 14, 1884. It was opened as a skating-rink by lessee, is under the same restriction, because he enters Wansor. The plaintiff, with her daughter, Mrs. Wan- under the same title, and not by any juvitation, exBor, attended such skating-rink twice before Novem- press or implied, from the owner, and hence assumes ber 22, 1884, and on one occasion asssisted her son-in- the same risk. Taylor Landi. & Ten., $175; Jaffe v. law in running the rink. She took tickets at the door. Harteau, 56 N. Y. 398; Ryan v. Wilson, 87 id. 471. Tickets were purchased of her and paid for at the In the case before us there is no claim of any secret door. One evening she acted as floor manager of the defect, deceit, warranty, or agreement on the part of rink for her son-in-law, and once went and paid the the defendant to repair. On the contrary, it was exrent for him. After that, and on the evening of No
pressly agreed upon the part of the tenant to “devember 22, 1884, the plaintiff and her daughter, Mrs. liver up the said premises, together, with the appurteWansor, started to go to the entertainment at the pances thereunto belonging, * peaceably and skating-rink, as she had before. It was dark, rainy, quietly, at the expiration of said term (of two years' and the wind blew bard. There was no ligbt at the time), in as good condition and repair as the same" foot of the stairs, and the hallway was dark. As she were at the time of making the lease. Undoubtedly went in, the right-hand part of the door of the en- the lease gave to the lessees, and those rightfully using trance was shut, and the left-hand part of the door
any part of the leased premises under them, the right open; and as she went through the part of the door
of passage through and up the hallways and stairways that was open, and stepped to the right, just at the mentioned, as there was no other means of access. right of the part of the door that was shut a little from
Pomfret v. Ricrost, 1 Saund. 321; Doyle v. Lord, 64 N. the edge of the door, she stepped into a hole in the Y. 432; Royce v. Guggenheim, 106 Mass. 201. floor, and went down into it with one leg up as far But it is claimed that notwithstanding such right of as she could fall, wear to the groin, and wrenched aud
passage, yet that as the defendant had other tenants badly injured her leg. The hole was formed by the in the same building, having a like right of passage, floor breaking through, and had been there for more such hallways and stairways must be deemed to have than three weeks, and during that time was known to remained in the possession and control of the defendbe there by members of the Guards. It was about six ant, and hence that he was responsible for injury by inches wide, and eight or ten inches long. At the reason of any want of repair therein. time of the agreement to lease, the place where the It has been held that where the landlord only rented hole was had become rather worn, but otherwise in a portion of the premises, and retained the possession, good condition. Armory Hall had been used as a occupancy, and control of the balance, he was liable rink in the winter of 1881-82 and 1882-83. In August tu one injured, while rightfully passing over the poror September, 1884, the Presbyterian Society gave a tion in his possession, by reason of a defect therein. kind of fair or entertainment in the hall. Prior to Camp v. Wood, 76 N. Y. 92; Edwards v. N. Y. & H. R. May 1, 1884, the Guards had talked with the defend- R. Co., 98 id. 255. This rule has been extended to a ant about improving and repairing the hall, which he passage-way over staircases and entries used by the refused to do, because they would not pay more rent lessee “iu common with the landlord and the other than named in the lease. The undisputed evidence tenants" in the same building. Looney v. McLean, 129 shows that neither the defendant, nor any of the own- Mass. 35. ers of the block lived in Beloit, or had any knowledge In commenting upon that case, the same court said : or information as to the existence of the hole in ques- “It may be that there is an obligation on the owner tion until after the plaintiff's injury, November 22, to keep the ways (staircases and passage-ways) in such 1884. The rents were collected through the bank. At a condition that they can be safely used by the tenthe close of the testimony, of which the above state- ants; but this obligation has never been extended so ment is the substance, the defendant moved for a non- as to require a construction of the ways on a different suit, which was granted ; and from the judgment en- plan, if the ways, as they existed when the premises tered thereon the plaintiff brings this appeal.
were hired, were not altogether convenient or safe by Buckley & Wickhem and C. N. & F. M. Scanlan, for
reason of some fault in the original plan which was appellant.
apparent;” and so it was accordingly held that a Winans & Hyzer, for respondent.
landlord letting several tenements in the same build
ing, with a common exterior flight of entrance steps, CASSODAY, J. The case at bar is clearly distinguish- without a railing, was not liable to a tenant injured by able from that class of cases cited where the injury is falling on ice accumulated ou the steps, although they
were so made, and of such material, as to collect ice. doubts upon the soundness of Looney v. McLean, sitWoods v. Naumkeag S. C. Co., supra.
pra, and claiming that it stands alone. It is there lu a still later case of Bowe v. Hunking, supra, the said tbat “the duty of the tenant to keep in safe consame court held that a landlord was “ not liable to his ditiou, for his own use, the demised premises, extends tenant for a personal injury by reason of a defect in a to all the appurtenances connected therewith, and this stairway in the tenement caused by a previous ten- includes steps, stairways, and other approaches. ant; there having be?n an opportunity to examine the Whatever passes to the tenant under the lease is, for premises at the time of hiring, and no warranty of fit- the term designated, under his control and in his posness, and no kuowledge on the laudlord's part of any session;" citing Pomfret v. Ricroft, supru. See also unsafeness."
The defect in the staircase there com- Howard v. Doolittle, 3 Duer, 464; Corey v. Mann, 14 plained of was that “the tread of the second stair had How. Pr. 163; Kaiser v. Hirth, 46 id. 161; Loupe v. been sawed about four inches from each end, across to Wood, 51 Cal. 586; Krueger v. Ferrant, supra; Platt v. within about an inch of the back side of it, and length- | Farney, 16 Bradw. 216. wise cut out about an inch from and parallel to the It is unnecessary here to determine the apparent back side of the tread, and was, at the time of the ac- conflict between the Massachusetts case mentioned cident, unsupported."
and other cases cited; since it is pretty clear from the Looney v. McLean, supra, is quite similar in its facts authorities, that in the absence of any secret defect, to the Scotch case cited, of McMartin v. Hannay, 10 deceit, warranty, or agreement on the part of the Sel. Cas. (3d ser.) 411, in which Lord Benholme made landlord to repair, he cannot be held liable to the tenthis distinction: “The landlord undertook to be aus- ant, or any one rightfully occupying under him, foran werable for the outside stair. He actually kept a man injury caused by the premises getting out of repair in his employment for the purpose of looking after it, during the term, unless it be by reason of his own and other similar stairs in various tenements. This wrongful act, or failure to perform a kuown duty. relieves my miud of considerable doubts, for often the Thus iu Carstuirs v. Taylor, L. R., 6 Exch. 222, where landlord is not near the place where the property is the landlord rented the lower part of the house, and situated, and kuows nothing about the dangerous retained possession of the upper part, it was said on condition into which it may have got. In such cases the part of the court: "The defendant can only be there may be a considerable room for arguing that liable if he was guilty of negligence." the tenant may have incurred certain responsibil- The defendant here testified that he did not know of ity."
the defect in the entry-way until after the injury; and In the recent case of Ivay v. Hedges, 9 Q. B. Div. 80, the circumstances preclude any presumption of such the defendant let out his house in apartments to sev- knowledge. It would be unwarranted to find, upon eral tenants, with the privilege of using the roof, which such facts, that he was guilty of negligence. But the was flat, having an iron rail at the outer edge, for dry. case is very much stronger for the defendant than any ing their linen. The plaintiff, one of the tenants,went of the cases cited. Wansor was not occupying the upon the roof to remove some linen, when his foot ball as a skating-rink by any rightful authority from slipped, and the rail being out of repair to the knowl- the defendant, or any of the owners of the building. edge of the landlord, he fell, and was injured. The On the contrary, the letting to Wansor by the Guards nousuit of the plaintiff was sustained on the ground was expressly prohibited by the written Jease. The “that there was no duty on the part of the landlord occupancy by Wansor, and those under him, or upon to protect such a place, and that if the lodgers chose his invitation for such a purpose, was wrongful, as to use the roof for the purpose stated, they must take against the defenda
the other owners. The it cum onere."
plaintiff at the time of the injury was so occupying Iu Humphrey v. Wait, supra, the defendant leased This being so, neither the defendant, nor any of such to the plaintiff a room in his house. The only mode owners, under any of the authorities, owed her the of access to it, and the other rooms on the same story, duty of security in passage while she was in the act of was by a certain passage, in which there was an un- invading their rights. To constitute actionable neglicovered stovepipe hole, into which the plaintiff, while gence, the defendant must be guilty of some wrongful rightfully passing, slipped aud was injured; and it was act or breach of positive duty to the plaintiff. This is held that in the absence of an express contract, the elementary, and has often been recognized by this defendant was under no legal obligation to keep the court. Cahill v. Layton, 57 Wis. 600; S. C., 16 N. W. premises in repair, avd hence be was not liable. It is Rep. 1; Griswold v. Chicago & N. W. Ry. Co., 64 Wis. there said by the chief justice on the part of the court: 652; S. C., 26 N. W. Rep. 101 ; Purcel v. English, supra; “If a man rent th upper story of a house, with the Ryan v. Wilson, supra. There is no claim of any such staircase-the only means of approach-in a ruinous wrongful act. It is very clear that the defendant owed and unsafe state, I see no implied obligation on the to the plaintiff no such duty. landlord to uphold it, or to answer in damages for an The judgment of the Circuit Court is affirmed. injury resulting from its insecure state. It would be a singular state of the law if the laudlord would not De answerable if he demised the stairway with the upper story, and would be answerable if he only gave a CONSTITUTIONAL LAW INTERSTATE COMright to use it as an approach to the part of the house MERCE-STATUTE FORBIDDING DISCRIMactually demised."
INATION IN RAILROAD CHARGES. This language has received the express sanction of the Supreme Court of Indiana. Purcell v. English, 86
SUPREME COURT OF THE UNITED STATES, Ind. 34. In that case it was held that “where a stair
OCTOBER 25, 1886. way, connected with apartments hired in a tenement house occupied by several tenants, is rendered unsale WABASH, ST. LOUIS AND PACIFIC Ry. Co. v. PEOPLE by temporary causes, such as the accumulation of snow
OF THE STATE OF ILLINOIS. and ico. the landlord is not liable to the tenant who
A statute of Illinois enacts that if any railroad company uses such a stairway with full knowledge of its dan- shall, within that State, charge or receive for transportgerous condition, unless there is a contract ou the
ing passengers or freight of the same class, the same or part of the landlord to keep the premises in repair and
a greater sum for any distance than it does for a longer fit for safe use." In that case there is a discriminat
distance, it shall be liable to a penalty for unjust discriming and well-written opinion by Elliott, J., throwing ination. The defendant in this case made such discrim