not appear that even as between the deceased and the heating company his estate did not remain liable for the performance of the contract. But whether it did or not, it was liable, so far as appears, to make good its share of any loss to the defendants, and was entitled to share in any gain: Schenkl v. Dana, 118 Mass. 236; King v. Leighton, 100 N. Y. 386, 393, 394; McClean v. Kennard, L. R. 9 Ch. 336; Newell v. Humphrey, 37 Vt. 265, 270. See Freeman v. Freeman, 136 Mass. 260; 142 Mass. 98.

However the value of Putterill's interest would have been ascertained had the question arisen before performance, there is no doubt that, as the defendants have gone on and have performed the contract, his estate has a right to share the profits realized. The master's ruling to that effect is correct, and the defendant's exceptions thereto must be overruled: McClean v. Kennard, L. R. 9 Ch. 336; King v. Leighton, 100 N. Y. 386.

The report opens no other question. The master finds that Putterill's death made it necessary to employ the plaintiff in his private capacity, and has deducted the cost of his service from Putterill's share. This appears to be proper, and is not excepted to. The master makes no further allowance to the defendants, and there is nothing to show, as matter of law, that he ought to do so: See Schenkl v. Dana, 118 Mass. 236, 239; Robinson v. Simmons, 146 Mass. 167, 177.

Exceptions overruled.

Decree for the plaintiff.

SURVIVORSHIP OF ACTIONS. As to what actions survive, see extended note to Boor v. Lowrey, 53 Am. Rep. 525-539; note to Susong v. Vaiden, 30 Am. Rep. 56-58.

FLAHERTY V. Moran.

[81 MICHIGAN, 52.]

NUISANCE HIGH FENCE ERECTED FOR SPITE, and with malice, and with no other purpose than to shut out the light and air from a neighbor's window, is a nuisance.

E. L. Carroll, for the appellant.

Thompson and Temple, for the respondent.

LONG, J. The parties to this cause own adjoining lots in the city of Grand Rapids, complainant's lot being on the northwest corner of Goodrich and Lagrave streets, and the defendant's lot adjoining it on the north, both extending westerly to an alley in the rear. The line of the lots was established before either of the parties purchased. The defendant built a house some years ago near the north line of his lot, and standing back some distance from the street. cupies this property as his home.

He oc

In August, 1888, the complainant commenced the erection. of a house on the front end of his lot. It was to be a double house, facing Lagrave Street, and the north wall being laid about four feet from the line between the two lots; the front wall being much nearer Lagrave Street than defendant's house. After the foundation wall was laid, the defendant built a screen or board fence, about ten feet in height, along the line of the lots, but upon his own premises, extending from the front wall of the complainant's house backward the whole length of complainant's house.

It is claimed by the complainant that the screen or fence was built maliciously, and for the purpose of darkening his (com

plainant's) rooms, and for no useful purpose. The bill is filed to compel the defendant to remove such fence. On the hearing in the court below, the court decreed such removal within sixty days from the decree, and perpetually enjoined the defendant from building or maintaining such a screen or fence. From this decree defendant appeals.

The testimony was taken in open court, and there seems but little dispute of fact, except as to the motive which induced the defendant to build such a fence. It appears that while the complainant was building his house, and during the time the foundation wall was being placed, the wife of the defendant came up and saw Mrs. Flaherty near there, and inquired if the complainant's house was to stand so near the street; and being advised that it was, she remarked that it would spoil the looks of their place and shut off their south view, and if it was so built, she would build a board fence between them twelve feet high. Soon after this talk, the fence was built. Posts were put in the ground, stringers put across, and the boards, extending up and down, were nailed on these stringers, on the defendant's side, the side towards complainant's house being rough and unplaned. This fence stands within about four feet of complainant's house, and as the proofs show, darkens his rooms, and obstructs the light and air. The defendant claims not to have known much about the erection of the fence; but it is shown that he brought the posts there, and paid the bill presented for its construction, though his wife looked generally to the height and character of the fence while it was being built.

It is not profitable to recite the evidence given on the hearing. The only excuse made by the defense for its erection comes from the wife of the defendant, who testifies that, while the walls of the complainant's house were being erected, she met Mrs. Flaherty on the corner of the lawn, and inquired if the house was to come so near the street as that, and being told that it was, she responded to Mrs. Flaherty: "Don't you know that you are going to injure the property on the street, and injure ourselves, entirely?"

Mrs. Flaherty said: "We are building the house for our selves, not for other people."

Mrs. Moran said: "Very well. We will build a fence for ourselves, and we will make it twelve feet high."

Soon after this the fence was built, and has ever since been so kept and maintained. Mrs. Moran says, upon an inquiry

being made as to who maintains it: "I do, for my own benefit, to keep the neighbors from looking through my house, and to protect my lawn. It is not pleasant to live in a house where folks can look right through it, and have another house down in front of you, that you cannot sit down by a window unless your neighbors can see you. There are times when folks want to be alone in their own house; and furthermore, I want that fence to plant vines on."

The animus of the whole matter is plainly discernible from the testimony of Mrs. Moran. The complainant had built his house standing somewhat nearer the street than defendant's house, so that Mrs. Moran's view was obstructed towards the south, and she thought it hurt the looks of her place. It is very evident that the fence serves no useful or needful purpose, and was built, and is now maintained, out of pure malice and spite. The case comes so squarely within the opinion of Mr. Justice Morse in Burke v. Smith, 69 Mich. 380, that I shall not discuss the questions of law involved. It was there held, by an equal division of the court as then constituted, that a fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's window, is a nuisance. I fully approve of the reasoning of Mr. Justice Morse in that case, and rest this case upon the reasons there given by him. The decree must be affirmed, with costs.

FENCES ACTION FOR THE MALICIOUS ERECTION OF HIGH FENCE.-In Mahon v. Brown, 13 Wend. 361, cited in the note to Phelps v. Nowlen, 28 Am. Rep. 103, the court decided that the plaintiff could not maintain an action on the case against the defendant, who had maliciously erected a high fence upon his own premises, not for any benefit to himself, but merely to annoy the plaintiff and obstruct her air and light.

In Guest v. Reynolds, 68 Ill. 478, 18 Am. Rep. 570, it was decided that the plaintiff, showing no prescriptive right to light and air, could not maintain an action against defendant for the erection upon his own land of a high board fence within two feet of plaintiff's house, whereby light and air were shut off from such house and the rooms therein rendered dark and unfit for habitation. In Massachusetts, however, there is a statute which declares certain high fences, maliciously erected by one upon his own land, to be private nuisances, and provides a remedy therefor: Mass. Stats. of 1887, c. 348. And in Rideout v. Knox, 148 Mass. 368, 12 Am. St. Rep. 560, and Smith v. Morse, 148 Mass. 407, the provisions of such statute were held to apply to fences existing at its passage and subsequently maintained.

A somewhat analogous principle underlies the decision of the court in Fal loon v. Schilling, 29 Kan. 202, 44 Am. Rep. 642, in which the rule is laid down that an owner of land may erect small and cheap movable tenement-houses thereon close to the line of an adjacent owner and let them to orderly colored tenants, notwithstanding his avowed purpose is to punish such adjacent

owner for refusing to sell him his land at an adequate price, and to compel him to do so. Nor can a private dwelling be declared a nuisance merely be cause it may injure an adjacent owner by cutting off his breeze from and his view of the sea: Quintini v. Board of Aldermen, 64 Miss. 483; 60 Am. Rep. 62. Compare note to Phelps v. Nowlen, 28 Am. Rep. 101-103, as to actions against the owner of land for lawful acts done maliciously upon his own premises.

MILLER V. OTTAWAY.

(81 MICHIGAN, 196.]

NEGOTIABLE INSTRUMENTS-BREACH OF WARRANTY, WHEN NO DEFENSE TO A NOTE. — It is not a good defense against a bona fide holder for value that he was informed that the note was made in consideration of an executory contract of warranty, unless he was also informed of its breach. NEGOTIABLE INSTRUMENTS - Collateral WARRANTY NO Defense against PURCHASER OF NOTE BEFORE MATURITY. — A mere collateral agreement or warranty made at the time a note is given does not affect its negotiability, although the purchaser before maturity may know of such agreement.

NEGOTIABLE INSTRUMENTS BREACH OF WARRANTY IN SALE NO DEFENSE ON NOTE A purchaser of mares, sold at auction under warranty that they are with foal, who gives his note in payment, which is purchased by a third person for value, in good faith and before maturity, with knowledge of the warranty, but without knowledge of its breach, cannot set up the defense of a breach of the warranty in a suit on his note. Howard and Gold, for the appellants.

Durand and Carton, and Ira T. Sayre, for the respondent. CHAMPLIN, C. J. This suit was brought to recover the amount of a promissory note dated November 15, 1887, due in one year, payable to Archibald Carmichael or bearer, for $407.

The consideration for which the note was given was one span of mares and two colts, purchased by James Ottaway at an auction sale. Ottaway bid off the span of mares for $285, and the colts for $122, and gave his note for the amount. Defendants claim that at the time of sale the mares were warranted to be with foal, and if they proved to be so, then he (Ottaway, the purchaser) was to pay the further sum of sixteen dollars for the service of the horse. Plaintiff purchased the note of the payee on December 3, 1887, and paid full value for it. It turned out that the mares were not with foal. The plaintiff was present at the auction sale, and acted as clerk for Mr. Carmichael, who was confined to his house by sickness, and had general control of the auction. If the warranty

AM. ST. REP., VOL. XXI. — 33