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cial importance by the vastly increased number and scale of industrial undertakings in civilized society within the last few generations, is historically connected by descent with notions so remote from our present frame of mind that it requires an effort for a civilized man to understand them. It would be rash, however, to jump at the inference that a rule whose descent can be so traced is nothing but a relic of barbarism. The doctrine of vicarious liability has persisted in the jurisprudence of civilized people for so long a time and with such general acceptance that it must in some way commend itself to the political common-sense of mankind, whose traditions, difficult as it may be to put them into a logical form, are often more to be trusted than any direct calculation of utility that can be made with the means at our command.-The Pall Mall Gazette.

STIPULATIONS ALLOWING COSTS OF COLLECTION IN PROMISSORY NOTE.

SUPREME COURT OF KANSAS-JULY TERM, 1877.

SEATON, plaintiff in error, v. SCOVILLE ET AL. A note otherwise negotiable is not rendered non-negotiable by the addition of a stipulation to pay costs of collecting, including reasonable attorney's fees, if suit be instituted thereon.

A note payable in Topeka was, on August 5th, legally protested there and notice thereof forwarded by mail by the banker who held the note for collection to the owners at Fort Scott. Notice when received was sent by them by mail to the indorser at Atchison. It took a letter two days to go by mail from Topeka to Fort Scott, and two days to go in like manner from Fort Scott to Atchison. The indorser received the notice on August 10th. The 9th was Sunday. Held, that a finding that legal notice had been given must be sustained although it appeared that there was a daily mail between Topeka and Atchison, and that all parties except the notary knew where the indorser resided, and although it was not shown at what exact hour the notice was deposited in the post-office at Topeka or at Fort Scott, or received by the owners or indorser, or what hours the mail left Topeka or Fort Scott, or reached Fort Scott or Atchison. RROR to the District Court of Atchison county. The facts appear in the opinion.

ER

David Martin, for plaintiff in error.

B. P. Waggener, for defendant in error.
BREWER, J., delivered the opinion of the court.
This was an action upon the following note:
"$250.00.

TOPEKA, KAN., June 24, 1874. "Thirty-nine days after date we promise to pay to the order of John Seaton, at the Topeka Bank and Savings Institution, Topeka, Kansas, two hundred and fifty dollars, with interest at twelve per cent per annum after due until paid; also costs of collecting, including reasonable attorney's fees, if suit be instituted on this note. Value received.

"Topeka Rolling Mill Co., by

"R. D. COLDREN, President."

And the first question presented is, whether this was a negotiable note; and the claim is, that because of the stipulation for payment of costs of collection and attorney's fees, the amount due on the paper is uncertain, while both the common law and the statute define negotiable paper as drawn for a "sum or sums of money certain." Story on Prom. Notes, § 1; Gen. Stats., § 1, p. 114. This claim cannot be sustained. The amount due at the maturity of the paper is certain, and the only uncertainty is in the amount which shall be collectible in case the maker defaults at the maturity of the paper in his promise to pay, and the

holder is driven to the necessity of instituting a suit for collection, and then only as to the expenses of such collection. In the case of Sperry v. Harr, 32 Iowa, 184, the stipulation in the note was: "If not paid when due, and suit is brought thereon, I hereby agree to pay collection and attorney's fees therefor," and the note was held to be negotiable. The court say, in the opinion: "The agreement for the payment of attorney's fees in no sense increased the amount of money which was payable when the note fell due, and we are unable to see that it rendered that amount uncertain in the least degree. It simply imposed an additional liability in case suit should be brought, and such liability did not become absolute until an action was instituted. This agreement relates rather to the remedy upon the note, if a legal remedy be pursued, to enforce its collection, than to the sum which the maker is bound to pay. It is not different in character from a cognovit, which, when attached to promissory notes, does not destroy their negotiability."

The same proposition is affirmed in Carr et al. v. Louisville Bank Co., 11 Bush (Ky.), 180, in which the court declares that "the reason for the rule, that the amount to be paid must be fixed and certain, is that the paper is to become a substitute for money, and this it cannot be unless it can be ascertained from it exactly how much money it represents. As long, therefore, as it remains a substitute for money, the amount which it entitles the holder to demand must be fixed and certain; but when it is past due it ceases to have that peculiar quality denominated negotiability, or to perform the office of money, and, hence, any thing which only renders its amount uncertain, after it has ceased to be a substitute for money, but which in nowise affected it until after it had performed its office, cannot prevent its becoming negotiable paper." Dietrich v. Baylie, 23 La. Ann. 767; Stoneman v. Pyle, 35 Ind. 103. That it is no longer an open question in the latter State is evident from the cases of Wyant v. Pottorf, 37 Ind. 512, and Walker v. Wollen et al., 4 Cent. L. J. 248. See, also, Dinsmore v. Duncan et al., 57 N. Y. 573, and Zimmerman v. Anderson, 67 Penn. St. 421, in which last case a stipulation, waiving appraisement, stay of execution, etc., was held not to affect the negotiability of the paper; Bradley v. Lill, 4 Bissell, 473, in which the promise was to pay a certain amount with exchange, and the amount of the exchange not stated, and still it was held to be negotiable. And, on the same point, see Smith v. Kendall, 9 Mich. 241; Johnson v. Frisbie, 15 id. 286; Leggett v. Jones, 10 Wis. 34; Gutacap v. Woulwise, 2 McLean, 581; contra, Bank v. Gay, 63 Mo. 33; Samstag v. Conly et al., 5 Cent. L. J. 29. It seems to us, however, a just conclusion that paper, otherwise negotiable, is not rendered nonnegotiable by a stipulation for the payment of costs of collection, including attorney fees, in case suit is brought thereon.

A second proposition of plaintiff in error is, that if the note be considered negotiable, notice of non-payment was not given within a reasonable time, so as to charge the indorser. The evidence upon this point showed that the protest was made August 5, 1874, and that the said John Seaton did not receive notice thereof until August 10, 1874; that said John Seaton resided in Atchison, Kansas, within the knowledge of all the parties, except the notary at Topeka, making protest, and was in business and attended the post-office two or three times every day; that Atchison was and is the terminus of the Atchison, Topeka and Santa Fe

railroad, a daily mail route, and is also the terminus of the Missouri Pacific or Atlantic and Pacific railroad, a daily mail route: that Topeka is situated on said Atchison, Topeka and Santa Fe railroad, fifty miles from Atchison; that the notice to said John Seaton was transmitted in the same envelope with the certificate of protest to the plaintiff at Fort Scott, where they resided, and said notice was sent by the plaintiff to the said John Seaton, and that it took two days for a letter to go by mail from Topeka to Fort Scott, and two days from Fort Scott to Atchison, Kansas, and the said note was placed in a Topeka bank, at Topeka, Kansas, for collection and protest if not paid when due, and was in said bank when so due, and after protest was returned to plaintiffs at Fort Scott, Kansas.

No question is made upon the protest, providing the note was negotiable. Upon this we remark that it rests upon the party seeking to charge an indorser to prove a legal notice. No presumptions arise in his favor. It is a question of fact, and the onus probandi is upon him. But, like any other question of fact, it is to be settled upon the testimony as it is given, and need not be proved beyond the possibility of mistake. A reasonable construction must be given to the testimony, and reasonable inferences may be drawn from it. And if, from this, it appears that legal notice was given, it will be sufficient, although it at the same time appears that further testimony, more full, explicit and definite, might possibly show an unwarrantable delay on the part of some one of the various parties. We are not to presume facts that are not proven, and we may rest upon the testimony given and any reasonable inferences to be drawn from it.

We remark again, that where the holder and the party to whom notice is to be given reside at different places it is generally sufficient if notice is sent by the mail of the day next succeeding the day of dishonor. Williams v. Smith, 2 B. & Ald. 501; Bray v. Hadmen, 5 Maule & Selwyn, 68; Bank of Alexandria v. Swan, 9 Peters, 33. It is sometimes said that it must go by the next practicable mail, and, on the other hand, where the mail of the next succeeding day starts at an unseasonable hour, it will be sufficient if it is deposited in the post-office at any time on that day so as to be ready for the mail of the succeeding day. Our statute says, "within a reasonable time." Gen. Stat., p. 115, $7. What is a reasonable time is generally a question of law for the courts. Byles on Bills, marginal p. 322, and cases in note. 2 Greenf. on Ev., § 186. We are not in this case advised as to the hour of the departure of the mail from Topeka for Fort Scott, or from Fort Scott for Atchison, and so no question of seasonableness and unseasonableness of such hour is before us. We can, then, only fall back upon the general rule that the notice must be deposited in the post-office in time for the mail of the next succeeding day. In other words, the protest having been on the 5th, the notice must have left Topeka in the mail of the 6th, or at least been deposited in the post-office in time for such mail. Again, the holder of protested paper is not obliged to give notice to all prior parties - he may simply give notice to his immediate predecessor on the paper, and then such predecessor has the same time in which to notify his predecessor, and so on. So that, where there are many parties to dishonored paper, the first indorser may not receive notice of the dishonor for weeks or months thereafter, and that, too, although all the parties reside in the same vicinity. In the case before us it is entirely immaterial

whether the notary did or did not know of the residence of John Seaton, or whether said Seaton resided nearer to Topeka than Fort Scott, the residence of plaintiffs. Eagle Bank v. Hathaway, 5 Metc. 212; Triplett v. Hunt, 3 Dana, 128; Farmer v. Rand, 4 Shep. 453; 3 Kent's Com., side p. 106, and note; 2 Greenl. on Ev., § 187; 1 Parsons on Notes and Bills, 513. And, again, a banker or agent to whom the paper has been transmitted, for the purpose of obtaining acceptance or payment, is, so far as the question of notice is concerned, to be considered as though he were the real holder and his principal a prior indorser. He may notify only his principal, and such principal has the same amount of time in which to give notice to prior parties. 1 Am. Lead. Cases, side p. 394; 2 Greenl. on Ev., § 187a; Byles on Bills, side p. 224.

Now, applying these principles to the case, and it was proper for the notary at Topeka to forward notices to plaintiffs at Fort Scott, without mailing any directly to Seaton at Atchison, and whether he did or did not know of Seaton's place of residence. Notice leaving Topeka by the mail of the 6th, would reach Fort Scott on the 7th; leaving Fort Scott on the 8th, would reach Atchison on the 9th. It was received by Seaton on the 10th. But the 9th was Sunday, so that he received it on the very day that he should have received it, going by the first mail and in the usual time. It is true that the testimony fails to disclose the exact hours at which the notice was mailed at Topeka, or at Fort Scott, or of the departure of the mails from those places, or of the arrival of the mails at Fort Scott or Atchison, or the receipt of the notice by plaintiffs or Seaton, and if all these facts were disclosed it might possibly appear that there was, either on the part of the notary at Topeka or of the plaintiffs at Fort Scott, such a delay in forwarding notice as would discharge the indorser. But upon the testimony as it stands we think there was no error in the finding that due diligence had been used in giving notice." 1 Parsons on Notes and Bills, 517, and cases cited in note.

A final proposition of the learned counsel for plaintiff in error is, that "neither the pleadings nor the proofs show any right of the plaintiffs below to recover against Mr. Seaton." The petition alleges that plaintiffs are the assignees in bankruptcy of the Fort Scott Coal and Mining Company; that they have full power and authority to prosecute this action; and that John Seaton indorsed and transferred to plaintiffs said note, giving copy of indorsement, and that they are now the holders and owners thereof. No denial is made of these allegations. It is said by counsel that it does not appear that Seaton was ever indebted to the coal company, and that assignees in bankruptcy have no general power or authority to discount notes, etc., in behalf of their estates, and that no special authority from the bankrupt court is alleged. It is unnecessary to inquire whether the petition could not have been attacked by motion, or the authority of plaintiffs challenged by answer. Nothing of the kind was attempted. The defendant was content to go into trial upon the admission, by failure to deny that plaintiffs were the owners and holders of the paper, that they acquired title to it by indorsement to them, and that they had full authority to prosecute and maintain this action. As they could not be the owners and holders without having authority to receive title by the indorsement, and as it is not questioned but that, under some circumstances, they could legally take title to such paper, we think the general allegations of the petition, un

challenged by motion, answer or evidence, are sufficient to sustain the judgment.

Upon the whole record we see no error, and the judgment will be affirmed.

NOTE. The foregoing decision upon the question of the negotiability of notes of the character mentioned is in direct conflict with the case of Woods v. North, recently decided by the Supreme Court of Pennsylvania, and reported 16 Albany Law Journal, 116.

THE NEW LAW COURTS.

THE following from the Solicitors' Journal is the best

description we have met with of what will be when finished the most extensive court-house in the world. We refer to the New Law Courts in London, now approaching completion:

It may be interesting to attempt a slight sketch of the nature of the accommodation to be provided. The plan of the building, as is well known, is in form a rectangular parallelogram, measuring about 450 feet on each of its four sides. Roughly speaking, the whole of the space inclosed within this boundary is occupied by an outer row of buildings and two interior quadrangles, one of which is taken up by the large central hall; or perhaps it gives a more correct idea to say that the whole plan consists of two quadrangles, round one of which are grouped the offices and round the other the courts, this last being roofed over and forming the central hall. The length of this hall is 200 feet and its breadth 50 feet. Eighteen courts, seven on each side and two at either end, surround the hall. Entering from the Strand the public may use the hall as a promenade, but they will not find it so easy to go into and out of the courts as it now is at Westminster Hall. The level of the Strand is eighteen feet below that of Carey street, and the courts are on the Carey street level, so that, standing on the floor of the hall, which is a little above the Strand level, the courts are all on an upper floor, and cannot be approached directly from the hall. There is, in fact, no public communication between the central hall and the courts. If an idler desires to go the round of the courts he must come out again into the Strand, and, turning either to the right or left, will find a doorway leading to a winding staircase which will take him to a corridor which gives access to a gallery in every court. This corridor is provided for the special behoof of the public, and the idler will not there be jostled either by judges, barristers, solicitors, jurymen or witnesses. Taking each row of courts as it runs up the side of the central hall, there is a corridor for the bar on one side, and a corridor for the judges on the other side. Solicitors, and jurymen, and witnesses will be able to enter the courts from the corridors on the level of the hall, which are immediately below those of the bar and the judges. The offices of the chief clerks of the chancery division open out of the solicitors' corridors, and are underneath the courts.

But to return to the courts. The corridor for the judges is so arranged that every judge can communicate by means of it with every other judge, and all along the corridor will be found the judges' entrances to the court on the one hand, and their retiring-rooms on the other. In the corrider devoted to the bar are the entrances to the courts on the one side, and on the other are sundry consultation-rooms. All the courts, except two at the south end of the hall, are so placed as to be far removed from the noise of street traffic,

and each court is lighted from above, having no building over it. There are two entrances in Carey street set apart for the judges, and one for the bar. Two large rooms, one at either end of hall, are devoted to the bar, and rooms for library and refreshments are not wanting.

So far with reference to the western portion of the building, which occupies two-thirds of the space. The great quadrangle, round which the eastern portion of the building stands, measures about 300 feet in length by about 100 feet in breadth. In this portion of the building, which begins on the south side in the Strand, runs up the whole length of Bell-yard and some distance along Carey street on the north are grouped on three floors some of the most important offices in connection with the courts. The offices of the masters of the common-law divisions occupy the southern end and about a third of the way up Bell- yard, and on the court floor the chancery registrars occupy the rest of the building, being two-thirds of the length of Bellyard, and a short distance along Carey street. Underneath the court floor in this part of the building are the offices of the taxing masters, the record and writ clerks, and the report office. Spacious storage room in the cellars is provided for keeping the records of the courts, which are exceedingly voluminous.

The original project comprised a building of more than 900 apartments, including twenty-two courts, but the necessity for modifying the scheme has caused all superfluous accommodation to be abandoned. As it is, we believe there will be not less than 700 apartments in the building. All the corridors will be warmed by means of hot-water pipes, and the rooms by ordinary open fireplaces. In various parts of the building are lifts, for the purpose of raising coals to the several floors, and the sanitary arrangements are every where very complete. Protection against fire is provided by hydrants in every corridor, and all the floors are fire-proof.

The enormous building will, when completed and fully occupied, present a busy scene. It is estimated that not less than a thousand officials will enter the building daily to perform their duties, the barristers and solicitors whose business will take them into the building will probably number five hundred; then there are witnesses and jurymen, and lastly, the idlers and sightseers. The eastern portion of the building was contracted to be finished this month, and by the time this is in print the greater part of the scaffolding on the front toward Bell-yard will have been removed. The unsightly hoarding will be shortly taken away, and replaced by an iron railing.

GENERAL TERM ABSTRACT.

SUPERIOR COURT OF BUFFALO.

AGENCY.

1. Authority of agent to execute negotiable paper, when not implied.-The power of an agent to bind his principal by a negotiable instrument can be conferred only by the direct authority of the principal, except where by necessary implication the exercise of such a power is indispensable to carrying on the business in which the agent is employed, or where it is usually or customarily exercised in such business, or where the agent has customarily exercised such a power with the knowledge of the principal. An agent employed in carrying on the business of a meat market for and in

the name of the principal, has no authority, by implication from the nature of that business, to bind his principal by a negotiable note given in the course of that business. Park v. Lesher. Opinion by James M. Smith, J.

2. The defendant's husband conducted for her and in her name, and upon premises owned by her, the business of a meat market; and the defendant was ndebted to P. for lumber furnished and used in erecting an ice-house upon those premises. The plaintiff sold and assigned to defendant, through the agency of her husband, an account against said P., for the purpose of being used as an offset against P.'s claim, and the husband executed in her name a negotiable promissory note, expressly charging her separate estate with the payment. It did not appear that defendant ever knew of the existence of this note before suit brought. Assuming that the note was given in the course of the business conducted by the husband for the wife, and that he was authorized to buy the account, it was held, that there was nothing in the nature of that business or transaction from which an authority to execute a negotiable instrument could be implied. Ib.

MORTGAGE FORECLOSURE- REFEREE'S REPORT.

1. Report should state reasons as to why premises should be sold as a whole or in parcels.-When a referee decides that the property may be sold in parcels without injury to the interests of the parties, he should state the relative situation and value of the several parcels, and which should be first sold, and such other facts in relation to them as will enable the court to act understandingly in making such an order of sale as will be most beneficial to the parties. Selkirk v. Ascough. Opinion by Sheldon, J. (Special Term).

2. If he decides that a sale of the whole premises is necessary, he should state the reasons why that will be most beneficial to the parties. The sale cannot be of the entirety unless it is necessary, that is, most beneficial to all parties. It is not a matter of convenience; it is a matter of right, arising out of the necessity of the case and the greater benefit to all interested. If he reports that, physically, a sale can be made in parcels, yet that the property should be sold as a whole, he should state the reasons for his conclusions, so that the same may be considered by the court. Ib

3. Therefore, where a referee reported that the property could be sold in parcels without injury to the interests of the parties; that his reasons for such opinion are that the mortgaged premises consist of four adjoining lots, upon two of which there are dwelling-houses and the others are vacant; that the whole premises are incumbered by a mortgage of $800 now due and which is a lien thereon prior to plaintiff's mortgage; that the whole premises are insufficient in value to pay the mortgage of $800 and the plaintiff's claim; and, therefore, he recommends that the whole of said premises be sold together for the convenience of the parties. Held, for the reasons above stated, that this report was insufficient. Ib.

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descriptive of the manner, purpose, or feeling with which the material acts of the parties were done. People ex rel. Hogan v. Haberstro. Opinion by James M. Smith, J. (Special Term).

2. The complaint alleged, in substance, that the defendant being engaged in the business of carrying passengers for hire, agreed with the plaintiff, in consideration of the fare paid by him, to carry him from A to B; that under this agreement he took passage in defendant's cars, but the defendant failed to perform its agreement, and carelessly, negligently and wrongfully carried defendant beyond B, maliciously refusing to stop the cars so that he could leave them at B, whereby, etc. Held, that a cause of action upon contract, and not in tort, was here set forth, and that, therefore, an execution against the plaintiff's person for costs could not issue. Ib.

RECENT ENGLISH DECISIONS.

AUCTION.

Personal liability: conditions of sale: delay in clearing goods within prescribed time: condition precedent.In an action for the non-delivery of goods, it appeared that the defendants, who were auctioneers, issued printed catalogues, headed "Great Western Railway Company. Catalogue of unclaimed property, etc., which will be sold by auction by Messrs. H. & E. (the defendants), on Tuesday, November 7th, and following day. By order of the directors of the above company," etc. The catalogue contained, among others, the following conditions: "The lots to be cleared away within three days after the sale at the purchaser's expense, etc. If any deficiency shall arise, or from any cause the auctioneer shall be unable to deliver any lot or portion of a lot, then in such case the purchaser shall accept compensation. Upon failure of complying with the above conditions, the money deposited in part payment shall be forfeited. All lots unclaimed within the time aforesaid shall be resold by public or private sale without further notice, and the deficiency made good by the defaulter." The plaintiff attended the sale, received a catalogue, bought one of the lots, and paid a deposit. He did not fetch the goods away on Saturday (the last of the three days for clearing), but went for them on the Monday following, when he was told by one of the defendants that the lot had been delivered to another person. There was evidence that the lot was seen on Saturday morning in the defendant's possession as if ready for delivery, and that it was usual to delay the delivery of large lots like it till the smaller lots had been delivered. The plaintiff having been nonsuited, held, first, that on the face of the catalogue and conditions, there was evidence that the defendants contracted personally with the plaintiff for the delivery of the goods purchased by him. Secondly, that the condition as to clearing the lot within three days was not a condition precedent to the plaintiff's right to claim delivery. Woolfe v. Horne, L. R., 2 Q. B. D. 355.

BILL OF LADING.

Transfer of: rights as between transferee and unpaid vendor: valuable consideration: stoppage in transitu.The transfer of a bill of lading for valuable consideration to a bona fide transferee defeats the right of stoppage in transitu of the unpaid vendor of the goods, although the consideration was past and not given at the time the bill of lading was handed to the trans

feree by the lawful holder. In December, 1875, G. & Co. purchased from defendant a shipment of nuts, to be paid for by acceptance at three months on receipt of shipping documents. On the 1st of January, 1876, G. & Co., being already indebted to plaintiff, applied to him for a further advance, which, he said, he would give, but they must first cover their account. G. & Co. promised to give him cover (not naming any particular securities), and plaintiff at once advanced them a further sum of £2,000. On the 4th of January the bill of lading of the nuts, indorsed in blank, came into the possession of G. & Co. from defendant, and they accepted defendant's draft; and on the following day they handed the bill of lading to plaintiff with other securities, in fulfillment of their promise to give him cover. This transaction between plaintiff and G. & Co. was bona fide. On the arrival of the ship on the 3d of February, G. & Co. having in the meantime stopped payment, defendant sought to stop the nuts in transitu, and plaintiff claimed them under the bill of lading. Held, that the plaintiff had a good title as against the defendant. Rodger v. Comptoir d'Escompte de Paris, L. R., 2 P. C. 393, dissented from. Leask v. Scott Brothers, L. R., 2 Q. B. D. (C. A.) 376.

CARRIER OF PASSENGERS.

Railway company: by-laws: passenger failing to produce ticket: demand of fare: penalty or forfeiture.— By one of the by-laws of a railway company it was provided that any passenger traveling without a ticket, or failing or refusing to show or deliver up his ticket, should be liable to pay the fare from the station whence the train originally started. Held, that, before the by-law could be enforced by the company, a demand must have been made for the amount of the fare at the time the offense was committed. Semble (1) that such a by-law is not void for uncertainty. Semble (2) that the fare to be so paid is in the nature of a penalty or forfeiture. Q. B. Div., June 7, 1877. Brown v. Great Eastern Railway Co., 36 L. T. Rep. (N. S.) 767; S. C., L. R., 2 Q. B. D. 406.

CRIMINAL LAW.

He ad

Rape: consent: submission: carnal connection under pretense of surgical operation.-The prisoner professed to give medical and surgical advice for money. The prosecutrix, a girl of nineteen, consulted him with respect to illness from which she was suffering. vised that a surgical operation should be performed, and under pretense of performing it, had carnal connection with the prosecutrix. She submitted to what was done, not with any intention that he should have sexual connection with her but under the belief that he was merely treating her medically and performing a surgical operation, that belief being willfully and fraudulently induced by the prisoner. Held, that the prisoner was guilty of rape. Reg. v. Barrow, L. R., 1 C. C. 156, questioned. The Queen v. Flattery, L. R., 2 Q. B. D. (C. C. R.) 410.

FALSE REPRESENTATION.

Contagious disease, animals affected with: sale in market: implied representation that animals not suffering from disease: conditions of sale.-A person who sends animals destined for human food to a public market for sale, impliedly represents that they are, so far as he knows, not infected with any contagious disease dangerous to animal life; and a condition of sale that they are to be "taken with all faults" does not negative or qualify this representation. Ward v. Hobbs, L. R., 2 Q. B. D. 331.

LANDLORD AND TENANT.

Lease of a furnished house: implied condition of fitness for occupation.-In an agreement to let a furnished house there is an implied condition that the house shall be fit for occupation at the time at which the tenancy is to begin, and if the condition is not fulfilled the lessee is entitled thereupon to rescind the contract. The defendant agreed to rent the plaintiff's furnished house for three months from the 7th of May, but having at the beginning of the intended tenancy discovered that the house was, owing to defective drainage, unfit for habitation, refused to occupy it. The plaintiffs repaired the drains, and on the 26th of May tendered the house in a wholesome condition to the defendant, who refused to occupy or to pay any rent. Plaintiffs having sued for the rent and for use and occupation, held, that the state of the house at the beginning of the intended tenancy entitled the defendant to rescind the contract, and that he was not liable for the rent or for use and occupation. Smith v. Marrable, 11 M. & W. 5; 12 L. J. (Ex.) 223, approved. Wilson v. Finch Hatton, L. R., 2 Ex. D. 336.

STATUTE OF FRAUDS.

Lease: option of holding after three years (29 Car. 2, c. 3) ss. 1, 2: 8 & 9 Vict., c. 106, s. 3.- By writing, not under seal, plaintiff agreed to let, and defendant to take, "from the 14th February next until the following midsummer twelve months, and with right at end of that term for the tenant, by a month's previous notice, to remain on for three years and a half more." Held, reversing the judgment of the Exchequer Division, that this was a valid lease, not exceeding three years (viz., until midsummer twelve months), and therefore a deed was not required. Ct. App., June 15, 1877. Hand v. Hall, 36 L. T. Rep. (N. S.) 765.

VENDOR AND PURCHASER.

Rent: use and occupation: admission by demurrer.Claim, that by an agreement for the purchase by the plaintiffs of property belonging to the defendants, the purchase was to be completed on the 29th of September, 1869, from which time the plaintiffs were to receive all rents and profits and to pay interest on the purchase-money until the completion of the purchase. That the purchase was not completed until the 13th of March, 1876, and that the plaintiffs had duly paid the interest. That the defendants had remained in possession, but had paid no rent. That the plaintiffs claimed rent for use and occupation at the rate of £150 per annum as a fair value. The defendants demurred. Held (affirming the judgment of the Queen's Bench Division), that under the agreement a fair rent must be paid by the defendants for the time they remained in possession, and that by demurring they had admitted £150 a year to be a fair rent. The Metropolitan Railway Co. v. Defries, L. R., 2 Q. B. D. (C. A.) 387.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF OHIO.*
HOMESTEAD.

Mortgage of: interest of wife of debtor. — A mortgage of premises, no part of which constitutes the family homestead of the mortgage debtor, at the time of the execution and delivery of the mortgage, although not executed by the wife, is not affected by the subse

To appear in vol. 29, Ohio State Reports.

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