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the 25th December, 1873, determinable by either lessor or lessee at the expiration of the first seven or fourteen years, and she held an undertaking in writing from the lessors that if she could obtain a responsible and respectable tenant for the house at the rent of one hundred guineas per annum, they would accept a surrender of the plaintiff's lease, and grant to the new tenant a lease for twenty-one years, determinable by the lessee only at the end of seven or fourteen years. On the 22d February, 1877, the defendant had an interview with the plaintiff's agent respecting the house, and on the following day the defendant wrote to the agent a letter in the following terms:
"With reference to our interview last evening, I am willing to take 43, Holland-road" (meaning 43, Elshamroad) at the rent of 105l. per annum for twenty-one years, determinable at my option at seven or fourteen years, on all usual covenants and provisoes, provided the same be put into ornamental and substantial repair as arranged, and to pay 751. for the fixtures and fittings mentioned in the schedule you left with me. Rent to run from the 24th March. Possession to be given on the 14th March next. I shall feel obliged by a definite reply at once, as I have other offers."
The defendant also gave the names of two referees. On the 24th February the plaintiff's agent wrote and sent to the defendant a letter as follows:
"On behalf of Mrs. Hampshire I accept the terms contained in your letter of yesterday, subject to references being approved by the landlord, which I am quite convinced in your case is simply a matter of form."
The lessors were satisfied with the defendant's references, but the defendant subsequently refused to accept the lease, and thereupon the present action was brought. The material defense was that the new lease proposed to be granted to the defendant contained a covenant on the part of the lessee "that he would not, without the previous consent of the lessors, assign, underlet, or part with the possession of the said premises, but such consent not to be withheld to a respectable and responsible tenant, and that he would not, without the consent of the lessors, put up thereon any bill for letting apartments," which was alleged not to be a usual covenant.
Chitty, Q. C., and Creed, for plaintiff.
JESSEL, M. R. There are various objections to the contention of the plaintiff, but the chief objection, to which alone I intend to refer, arose on the defendant's agreement to take a lease of the house "on all usual covenants and provisoes." Now, the lease tendered by the lessors contains a covenant on the part of the lessee that he would not, without the lessors' consent, "assign, underlet, or part with the premises; but such consent not to be withheld to a respectable and responsible tenant;" and further, that he would not, without their consent, put up thereon any bill for letting apartments. That is clearly a very special and very unusual covenant, but it is said that it is less extensive than a general covenant not to assign at all, and that if no objection can be made to an unrestricted covenant against assignment, none can be made to a covenant in this restricted form. I think that reasoning is sound, and shall, therefore, consider whether an unrestricted covenant not to assign is or is not a usual covenant. I am of opinion that it is not. This was decided by Lord Thurlow in Henderson v. Hay,
sup., by Lord Eldon in Church v. Brown, sup., and more recently by the Court of Appeal in Hodgkinson v. Crowe, L. Rep., 10 Ch. 622; 33 L. T. Rep. (N. S.) 388, and by Bacon, V. C., in the same case, L. Rep., 19 Eq. 593; 33 L. T. Rep. (N. S.) 122, so that it caunot now be fairly disputed. It is true that a contrary decision of Romilly was cited. - Haines v. Burnett, sup.- but that case appears to me to be opposed both to principle and authority, and it must now be treated as distinctly overruled by Hodgkinson v. Crowe. In Haines v. Burnett, Lord Romilly, without any special provision having been made in the contract to that effect, held that a covenant should be inserted making the lease determinable on the bankruptcy of the lessee or on his making any arrangement for the benefit of his creditThat was, in fact, nothing less than a variation of the contract. I cannot see any reason for holding such a covenant to be usual, and it is rather difficult, in looking at the case, to understand how it was decided. Lord Romilly seems to have thought that, in considering general covenants and all such other covenants as are usually inserted in leases of property of a similar description, some regard might be had to the peculiar nature and tenure of the property; but I cannot find any evidence on that point mentioned in the report, and it would seem that the judge, from his view of the nature of the property, inserted the clause. But, when we look at the reasoning of Bacon, V. C., in Hodgkinson v. Crowe, I think it is conclusive against any judge being allowed to say from his own view that such a covenant ought to be introduced. The Court of Appeal went further, and held that, under an agreement for a lease to contain "all usual and customary mining clauses," the landlord was not entitled to have inserted in the lease a proviso for re-entry except on non-payment of rent. Usual covenants may vary in different generations. The law declares what are usual covenants according to the then knowledge of mankind. Lord Eldon, in Church v. Brown, puts it thus: "Before the case of Henderson v. Hay, therefore, upon an agreement to grant a lease with nothing more than the proper covenants, I should have said they were to be such covenants as were just as well known in such leases as the usual covenants under an agreement to convey an estate." Now, what is well known at one time may not be well known at another time, so that you cannot say that usual covenants never change. I have, therefore, looked at the last edition of Davidson's Precedents in Conveyancing (3d ed., vol. 5, pp. 48, 49), to see whether the usage is said to have changed. He says: "The result of the authorities appears to be that in a case where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease containing usual covenants,' or, which is the same thing, is an open agreement without any reference to the covenants, and there are no special circumstances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely, covenants by the lessee: 1, to pay rent; 2, to pay taxes, except such as are expressly payable by the landlord; 3, to keep and deliver up the premises in repair; and, 4, to allow the lessor to re-enter and view the state of repair, and the usual qualified covenant by the lessor for quiet enjoyment by the lessee." When he refers to "spec al circumstances," he means peculiar to a particular trade, as, for example, in leases of publichouses, where the brewers have their own forms of leases, the usual covenants would mean the covenants
always inserted in the leases of certain brewers. There is no mention of any other “usual covenants," and as nothing in this case has been lost for want of industry on the part of the counsel who have argued it, I am justified in saying that there is nothing in any text book or book of precedents to show that a covenant not to assign is a usual covenant. I am, therefore, of opinion that it is not a usual covenant, and the plaintiff's case fails. The action must be dismissed with costs.
Plaintiff, having a sum of money to loan, asked defendant if he wished to borrow it. He said no, but he thought his brother would like some. Plaintiff asked him if his brother was good for the amount and he said he was. At that time defendant believed his brother to be solvent and made the representation in good faith. Thereafter plaintiff called upon the brother and lent him the money, taking his note therefor. A few months thereafter and before the note was due, the brother made a general assignment for the benefit of creditors, and plaintiff's note was not paid in full. He then brought this action claiming that he had made the loan on the faith of defendant's representations.
At the trial defendant among other points presented these:
Fourth. To enable the plaintiff to recover, the jury must believe that John C. Duff represented his brother Agnew to be in good and solvent circumstances at the time the plaintiff applied to him; that the plaintiff, owing to his relations with the defendant, had a right to rely upon such representation; that such representation was false; that John C. Duff knew and believed, or had reason to know or believe, it to be false, and made such representation recklessly, without any just reason for making the same, and with the design and intent fraudulently and dishonestly to enable his brother to obtain the plaintiff's money. Answer. It was not necessary that the defendant, if he made the statements and representations, actually knew them to be false. If he made them recklessly, without sufficient reason for knowing and believing them to be true, and with the intent to enable his brother Agnew thereby to obtain the plaintiff's money, and the representations afterward turned out to be false, and damage resulted, it would be sufficient to create the liability of the defendant, without it appearing that the defendant knew or had reason to know or believe them to be false.
Fifth. If the jury believe that John C. Duff from
time to time sought information as to his brother's standing financially, and with an honest belief that he (Agnew) was solvent and could pay his debts, so represented his circumstances to Williams, the plaintiff cannot recover, even if such representations turned out afterward to be incorrect. Answer. This we affirm, if by "so represented his circumstances to Williams" we are to understand, giving or communicating information to plaintiff as information thus obtained merely; but the case would be different if he made the representations and statements as actual facts, as of his own knowledge.
The judgment below was for plaintiff, and defendant took a writ of error.
S. B. Wilson and Frank Wilson, for plaintiff in
John J. Wickham, for defendant in error.
STERRETT, J. In answer to the fourth point the learned judge said to the jury that, if the defendant made the alleged statements and representations, it was unnecessary to show that he "actually knew them to be false." If he made them recklessly, without sufficient reason for knowing and believing them to be true, or did he know that they were false? We are of opinion that the question was submitted to the jury in a manner that was calculated to lead them into an inquiry that was irrelevant and prejudicial to the defendant, and for this reason the first assignment of error should be sustained.
The defendant was entitled to an unqualified affirmance of his fifth point, in which the court was requested to say: "If the jury believe that John C. Duff from time to time sought information as to his brother's standing financially, and with an honest belief that he was solvent and could pay his debts, so represented his condition to Williams, the plaintiff cannot recover, even if such representations turned out afterward to be incorrect." This was putting the defense on its true ground-that of good faith. While the learned judge affirmed this proposition, he did so with a qualification which greatly weakened its force, by saying, "if by the words 'so represented his circumstances to Williams,' we are to understand giving or communicating information to the plaintiff as information thus obtained merely; but the case would be different if he made the representations as actual facts, as of his own knowledge." The jury would likely understand from this that the defendant was bound to inform the plaintiff that he had made inquiry as to his brother's standing, and give him in detail the information he had thus obtained, so that he might have the data from which to draw his own conclusions. Of course there could have been no objection to this mode of imparting information to the plaintiff, but it is not the only way in which it could be honestly done. He could with equally good faith state, as conclusions of fact, the inferences which he drew from the information he had obtained. If, as the result of inquiry, he came to the conclusion that his brother's financial standing was as good as his own, what would be the impropriety of honestly stating this to the plaintiff as a fact, instead of communicating to him the items of information upon which he had formed his judgment and belief? Taking into consideration all that was said and done, it must, after all, resolve itself into a question of sincerity and good faith. The principles involved are so clearly stated in Bokee v. Walker, supra; Boyd's Ex'rs
v. Browne, 6 Barr, 310; Huber v. Wilson, 11 Harris, 178; Rheem v. The Naugatuck Wheel Co., 9 Casey, 358; Graham v. Hollinger, 10 Wright, 55; and Dilworth v. Bradner et al., decided at the present term, 4 Weekly Notes, 505, that it is unnecessary to pursue the subject any further.
Judgment reversed and a venire facius de novo awarded.
COURT OF APPEALS ABSTRACT. APPEAL.
1. To Court of Appeals: order sustaining demurrer not appealable.-An order sustaining a demurrer to a complaint and dismissing it with costs, unless the plaintiff amends and pays costs of demurrer within a specified time, cannot be reviewed in this court until after final judgment has been entered for the defendant dismissing the complaint. Appeal dismissed. Elwell v. Johnson. Opinion by Andrews, J.
2. Judgment for costs not a final one.—A judgment for costs only is not a final judgment on the demurrer so as to give jurisdiction to this court. Ib. [Decided June 4, 1878.]
ASSAULT AND BATTERY.
1. Justification: resisting trespass upon land: title: evidence.-In an action for an assault and battery it appeared that plaintiff and defendant were the owners of adjoining farms, between which a highway ran. Plaintiff had for several years cut the grass on the side of the highway next to his farm. At the time of the affray he had cut the grass and left it to dry. In his absence defendant, who claimed title to the entire highway, began to gather the grass, when plaintiff came and attempted to prevent him. In resisting such attempt the assault was committed. Held, that evidence on behalf of defendant that the title to the highway was in him was admissible in justification of the assault. Judgment below reversed. Bliss v. Johnson. Opinion by Andrews, J.
2. Owner of land out of possession may take possession peaceably and then resist attempt to retake.-The true owner of land wrongfully held out of possession may watch his opportunity and, if he can regain possession peaceably, may maintain it and lawfully resist an attempt by the former occupant to retake possession; nor will he be liable to be proceeded against under the statute of forcible entry and detainer. Ib. [Decided May 21, 1878.]
Of sale and purchase: vendor cannot enforce against assignee of vendee.-Plaintiffs by contract in writing agreed to sell to the firm of Pierce & Co., and Pierce & Co. agreed to buy a quantity of oil at a specified price. Pierce & Co. for value sold and assigned the contract to defendant, and plaintiffs received notice of the transfer. The price of oil having fallen, the firm named made an agreement whereby it in consideration of a release of all liability agreed to pay plaintiffs $2,500, "and also to give them all over this sum that shall be realized from W. S. Dickinson (defendant), on our contracts with him." Plaintiffs having thereafter tendered the oil to defendant brought action against him for the difference between the price at which it was sold and the market price at the time of tender, less the $2,500 paid by the firm. Held, that there was no privity between plaintiffs and defendant, and the contract between the firm and plaintiffs did not operate to transfer to them any claim which the firm might
have against defendant under its contract with him, and the action was not maintainable. Judgment below reversed. Clark v. Dickinson. Opinion per Curiam. Miller, J., dissented; Folger, J., not voting. [Decided May 28, 1878.]
Declarations of vendor after sale not admissible against vendee.-In an action to recover the possession of property which had been sold by one Lane to plaintiffs, and which was thereafter seized by defendant, as sheriff, upon an execution against Lane, on the ground that the transfer to plaintiffs was fraudulent, declarations made by Lane after the action was commenced to a third person that he owned the property, held, inadmissible against plaintiffs. Judgment below reversed. Burnham v. Brennan. Opinion by Earl, J. [Decided June 4, 1878.]
Assignee may maintain action to set aside fraudulent conveyance without judgment.-An assignee in bankruptcy may maintain an action to set aside a conveyance as fraudulent without the necessity of a previous judgment and execution against the debtor who made it, as is required in the case of an individual creditor, and although none of the creditors have obtained a specific lien or have a standing in court to attack the conveyance. Judgment below affirmed. Southard v. Benner. Opinion by Allen, J.
2. Chattel mortgage: on merchandise left in possession of mortgagor fraudulent. - Advances were made by mortgagees to a mortgagor in a chattel mortgage to enable the mortgagor to carry on his business as a dealer in lumber. The entire stock of lumber was covered by the mortgage to secure the advances, and an agent of the mortgagees appointed to supervise the business and watch their interests. Sales were continued by the mortgagor as before and the avails used by him for his support and as his wants and business calls demanded. This was continued for a full year, and only such moneys as the mortgagor could spare were applied toward paying the advances. Held, that the mortgage was fraudulent in law as to creditors and void. Ib.
3. What is fraudulent arran gement.- An arrangement made contemporaneously with a mortgage on mer chandise whereby the mortgagor is to retain possession of the mortgaged property and deal with it as his own, and using the avails, would be conclusive evidence of fraud in fact, and such an agreement may be proved by parol. Ib. [Decided February 5, 1878 ]
Mortgage to: note of married woman binding separate estate is not.-Defendant, a married woman, indorsed a note in the following form: "I hereby charge my separate and personal estate for the payment of the within note. This note was discounted by a national bank. Held, that this indorsement did not become a mortgage on defendant's separate estate so as to preclude the bank from taking it under the National Banking Act. Such an indorsement creates no specific lien on any property, but only creates against the one making it a liability which can be enforced as if she was unmarried. Judgment below affirmed. Third National Bank v. Blake. Opinion by Earl, J.
[Decided April 9, 1878.]
STATUTE OF LIMITATIONS.
1. Does not run as to revival of suit: action against sheriff. An action was commenced within the statutory term against a sheriff to recover damages for the conversion of personal property of the plaintiff therein taken by him under attachment. Pending the suit the plaintiff died, and E. was qualified as her executrix. More than eighteen months thereafter E. served an affidavit and notice of motion for leave to file a supplemental complaint reviving the action as executrix. The motion was granted and a supplemental complaint served. Held, that the service of the supplemental complaint was the continuance of an old action and not the commencement of a new one, and the statute of limitation (Laws 1871, ch. 733), which provides that actions against sheriffs for acts such as the one in question shall be commenced within one year, did not bar the action. Order of General Term reversed and judgment on verdict ordered. Evans v. Cleveland. Opinion by Earl, J.
2. Whatever the rule may be on actions in equity, in a legal action commenced before it was barred by any statute of limitations no mere lapse of time will absolutely defeat an application for its continuance in the name of the representative of a deceased party, and no statute of limitations will bar a recovery. Ib. [Decided February 12, 1878. Reported below, 12 Hun, 140.]
Has not jurisdiction to make legacies charge on real estate.-When, in good faith, an executor resists the charging of a legacy upon the residuary real estate in his hands, and shows that there exists a real question of fact or of law in his refusal to allow it, the surrogate has no jurisdiction to determine the matter. Laws of 1870, chap. 359, § 11, does not affect this rule. An intimation in Harris v. Ely, 25 N. Y. 138, 142, that a surrogate may try the validity of a release declared obiter. Decree below reversed. Bevan v. Cooper. Opinion by Folger, J. [Decided January 29, 1878.]
Construction of: legacy, when not chargeable on real estate. Where a testator, possessed of both real and personal estate, gave legacies to strangers or those remotely related to him, and set apart the residuum of his estate definitely for the support of his widow and children, describing the real and personal property distinctly; and where it did not appear that he contemplated an insufficiency of personal property to pay the legacies; and there was an insufficiency caused by the death of the testator and by his debts, and where there had been a devise of specific real estate as well as legacies, held, that there was no blending of the real estate with the personal into one mass, and the intention would not be imputed to the testator of charging the legacies upon the real estate, and they would not be so charged. Decree below reversed. Bevan v. Cooper. Opinion by Folger, J. [Decided January 29, 1878.]
NOTES OF RECENT DECISIONS.
CHATTEL MORTGAGE : FILING: LEAVING WITH PROPER OFFICER SUFFICIENT COMPLIANCE WITH STAT
UTE. The word "filed," as applied to a chattel mortgage in sections 1, 2 and 3, ch. 39, Gen. Stat., does not include the indorsing and indexing prescribed by section 2, but a chattel mortgage is filed, within the
meaning of the statute relating to chattel mortgages, when it is delivered to, and received and kept by, the proper officer, for the purpose of notice mentioned in the statute. Sup. Ct., Minnesota, May 22, 1878. Gorham v. Summers (N. W. L. Rep.).
CORPORATION: SEWING MACHINE COMPANY MAY
TAKE NOTES OF THIRD PERSONS IN PAYMENT FOR MA
CHINES. When a note taken in payment of a sewing machine by a person who had purchased the machine from the company, and was not their agent, had been turned over to the company before maturity, to be applied in payment of an indebtedness from the payee to the company, and without notice of any defense, it can be collected by the company, even if there was a failure of consideration, if there was no fraud in the execution of the note. A sewing machine company may receive notes of third parties in payment of an indebtedness, although it cannot do a general banking business or discount commercial paper. Appellate Ct., Illinois, February, 1878. Taylor v. Thompson.
NEGOTIABLE INSTRUMENT: WHAT IS: PLACE OF PAYMENT LEFT BLANK: USAGE.-C. made and signed two notes on printed forms, which were left blank as to the bank at which they were to be payable, and procured G. to sign his name on the back thereof, and these notes he delivered to persons under whom the plaintiffs claimed, as collateral security, under an agreement with such persons that he should deliver to them indorsed notes. It being in proof that C. and G. regarded these notes as negotiable, and that there was a usage in R., where C. and G. lived, to leave notes blank as to the bank at which they were payable, and for the holder to fill such blank, it was held, that said notes were to be treated as negotiable, and G., not having been duly notified of their dishonor,
was discharged. Sup. Ct. App., Virginia, March, 1878. Woodward v. Gunn (Va. L. J.).
NEGOTIABLE INSTRUMENT: EFFECT OF SUBSEQUENT INDORSEMENT.-Several promissory notes were executed by one H. to G., who assigned the same by indorsement to F. F. afterward assigned them by indorsement to G., who assigned them to plaintiff. Held, that F.'s liability as between himself and G. being extinguished, the plaintiff, as G.'s indorsee, could not recover of F. U. S. Circ., Ind., April, 1878. Howe Mach. Co. v. Hadden (Cent. L. J.)
RECENT AMERICAN DECISIONS.
SUPREME COURT OF PENNSYLVANIA.
Want of title to premises insured: when no defense.— Want of title of the insured is no defense to an action on a policy of fire insurance, if the insured entered upon his land and took his insurance in good faith, under a reasonable and honest belief that he had title, and if he did not withhold the knowledge of a dispute about his title in bad faith. Monroe Co. Mut. Ins. Co. v. Robinson (W. Not. Cas.). Decided April 4, 1878.
Township warrants are not: warrants on township treasurer: demand.-Warrants upon a township treasurer issued to a contractor or bearer by commissioners appointed to view and open a State road, are not negotiable instruments, entitling the holder to bring suit upon them in his own name. When such warrants are to be paid out of a special tax, a demand on the township treasurer is necessary before a suit can be maintained on the warrants. Township of East Union v. Ryan (W. Not. Cas.). Decided March 20, 1878.
MASTER AND SERVANT.
Negligence: mining operations: responsibility of master for injuries to a servant by an accident caused by negligence of a fellow-servant: who are fellow-servants.In order to bring a case within the rule that a master is not responsible for an injury happening to a servant through the negligence of a fellow-servant, it is not necessary that the injured and the negligent servants should be engaged in the same particular work, it is sufficient if the general scope of their employment be the same. A "driver boss" was killed in a coal mine by an explosion caused by the negligence (if any neglect there was) of the "mining boss," who had given an order to reduce the supply of fresh air. Held, that the two are fellow-servants within the meaning of the rule, and that the owner of the mine was not responsible. Lehigh Valley Coal Co. v. Jones (W. Not. Cas.). Decided March 15, 1878.
1. Fraudulent lease: relation of landlord and tenant does not exist under.-Where a lease is shown to be fraudulent and void, the relation between landlord and tenant under it is overthrown. Bidwell v. Evans.
2. Caveat emptor: inquiry as to right of possessor of real estate. The duty of inquiry as to the right of
those in possession is upon the purchaser. Ib. Decided January 7, 1878.
Computation of time: no time stated means reasonable time.-Where a contract provides for the future performance of an act without specifying any time, the legal presumption is that it shall be reasonable time; and the jury are to say what is reasonable time. Shepler v. Scott. Decided January 7, 1878.
Cannot be eradicated by taking new security.-The taint of usury cannot be eradicated by the substitution of one security or one set of securities for another so long as the original debt survives. Miller v. Irwin. Decided January 9, 1878.
RECENT BANKRUPTCY DECISIONS.
1. Levy on perishable goods: sale of conversion.—A creditor began suit in the Supreme Court of New York against one Spaulding, and obtained from the court a warrant of attachment against the property of said Spaulding, as a non-resident, under which warrant the sheriff levied upon certain goods of Spaulding in New York; three days after the levy an involuntary petition in bankruptcy was filed against Spaulding, in Massachusetts; thereafter, but before any adjudication, and before the election of any assignee in the bankruptcy proceedings, and before the sheriff had notice of such proceedings, an order for the sale of the goods, as perishable, was obtained from the State court, and the sheriff sold the goods under the said order. Held, that the sheriff was guilty of conversion in selling the goods, and was liable in damages to the assignee in bankruptcy subsequently appointed. U. S. Dist. Ct., S. D. New York. Long v. Conner, 17 Nat. Bankr. Reg. 540.
2. Title of assignee relates back to filing petition.Where goods are held by a sheriff under an attachment under mesne process of less than four months' standing at the time of the filing of a petition in bankruptcy, the title of the assignee in bankruptcy subsequently appointed relates to the date of the filing of the petition, and dissolves the attachment and invalidates all proceedings under it subsequent to the filing of the petition, even though such proceedings be taken without notice of the bankruptcy. Ib.
3. Order of State court no protection.-An order by the State court, in the attachment suit, for the sale of the goods attached as perishable, is no protection to the sheriff, when such order is made after the filing of the petition in bankruptcy, though before adjudication. Ib.
4. Measure of damages: true market value: evidence.— The sheriff is liable to the assignee in bankruptcy for the true market value of the property on the day of the sale, and not merely for the amount realized at the sale. In order to determine what was the market value, the jury can consider fair sales made at or about the time, or within a reasonable time subsequently. The amount received at the sheriff's sale furnishes some evidence of value; but the jury are to consider that this may have been a forced sale; where no great length of time or great amount of advertising or notice to the general public was given, the jury are to