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little one," being the insertion of two words "and divorce" in §8 of the constitution, so that it will read: "Congress shall have power to establish uniform laws on the subjects of bankruptcies and divorce throughout the United States."

Slight as this alteration in the constitution may appear, we have no doubt that sticklers for State rights will find in it ample occasion for the "view with alarm" style of rhetoric so much affected upon occasion by politicians. Judge Bennett does not seem to have taken this probability into the account at all; he contents himself with suggesting that congress shall take measures to have collected and published "reliable statistics and useful information upon this vital subject, which may arouse the minds of the public and attract the attention of legislators to the appalling evils now existing, and the only apparent cure."

While this is all very well, we think that we can foresee an opposition to this proposal more active than the mere vis inertia of indifference and ignorance which Judge Bennett proposes to combat by the "collection and publication of reliable statistics and useful information." It is true that the proposition is for a constitutional amendment, and, therefore, the strict construction slogan is unavailable for the opponents of the proposed reform; and it is equally true that the State rights sentiment has of late years lost very much of its pristine vigor, and has dwindled to a mere shadow of its ancient stalwart self, but nevertheless it still lives, and would very probably be roused to activity by a proposition to intrust to the general government the control of so strictly and literally a domestic matter as the law of divorce. We most earnestly favor the proposal to make the divorce laws uniform throughout the United States, and in doing so to make them conformable to the standard of the purest morality and the highest and most enlightened civilization, but we are not insensible to the force and description of the opposition which the reform must needs encounter. There will probably be several real grounds of that opposition, but the ostensible ground will be the usual quia timet pretext. If the States give up their jurisdiction of divorce, it will be feared that the control of the whole subject of marriage will next be sur

rendered, then all the law of domestic relations, of education, of descents and distributions, everything will tend to centralization, and, consequently, according to these pessimists, to universal smash. All this is apparently absurd, but we think, nevertheless, that when we undertake to act upon Judge Bennett's proposition we will encounter more serious opposition than he seems to anticipate, and should look well to our weapons.

NOTES OF RECENT DECISIONS.

INSANE PERSON-IMPLIED CONTRACT-LIABILITY OF COMMITTEE TO PAY FOR LUNATIC'S SERVICES. On the 22d day of November, 1886, the Supreme Court of South Carolina decided a case of the first impression, with regard to the liability of the committee of a lunatic to pay for the work and labor of such lunatic.

The facts of the case were that William Ashley, who was a man of fortune, had been appointed, in 1855, the committee of his lunatic son, and had for a number of years exercised the control of him that was warranted by that office as well as by his parental relation. Upon the death of the father, the plaintiff in the action under consideration was appointed committee of the lunatic, and brought suit against the estate of William Ashley, deceased, to recover for the lunatic compensation for the services rendered by the lunatic during the time that his father was his committee. It appeared that during that period the lunatic, besides other labor, "did many things in and about the house, yard and horse lot, such as making fires, cutting and hauling wood, shucking corn, feeding and watering horses and other stock," etc., and that these services were required and enforced by his father and, of course, enured to his

benefit. As these services were of value to the father, the plaintiff contended that the estate of the father was bound to pay to the estate of the lunatic son the value of those services. There was, however, evidence in the case tending to prove that the father employed the son in this manner, not for the

1 Ashley v. Holman, 1 S. E. Rep. 13.

sake of the profit or convenience derived by him from his son's labors, but because of the beneficial effect of that employment on the

son.

Upon this state of facts the court held that, although a technical contract was not possible between a lunatic and his committee, yet the latter was under a legal obligation, independent of contract, to pay for such services as were rendered him by the ward upon his requisition and for his benefit. But if these services were exacted of the lunatic for his own good as a wholesome discipline and employment for him, the committee is not bound to pay for such services, even although he may have derived an incidental benefit from them.

And as

It is not a litttle singular that the law of implied contracts on this subject is so onesided. There is abundant authority for the proposition that a lunatic who is ex vi termini incapable of making a contract can nevertheless be held liable upon an implied contract for necessaries, medicines, etc., but it seems that the rule will not work both ways, for it would appear that no contract will be implied in his favor against persons who have been benefitted by his labor. The obligation, if any such there may be, is, as the court says in this case, independent of contract. far as this case goes, and it is absolutely the only one on record which bears upon the question, the "obligation independent of contract" rests only upon a person who, as guardian or committee, has a legal right to control the actions of the lunatic, and could not be made applicable to any other person. We presume that if a stranger should find means to induce an adjudged lunatic to perform a valuable service, the law would imply a contract for payment, not between the stranger and the lunatic, but between the former and the guardian or committee of the lunatic; but there is no sort of authority tending to show that, if a stranger obtained valuable service from a lunatic incapable of contracting, and without a guardian, he could be made to pay for such service to the lunatic or his (unofficial) friends. In other words, although for certain purposes and in special cases the law will imply a contract against a lunatic, as far as the law has been declared by the courts, it will imply no contract in his favor.

LIABILITY OF JOINT EXECUTORS.

When there are two or more executors, questions often arise as to the liability of one for another's misappropriation of assets. There are three questions in such cases.

First, has the executor whom it is sought to charge for the other's default ever had possession of the assets in question?

Second, if he has had possession, and has delivered them over to another executor, what reason had he for doing so?

Third, if he has not had possession, did he know of the misappropriation by the other executor?

The first question is important, because if the executor has never had possession he cannot be held responsible, unless he knew of the actual misappropriation or was negligent in not knowing, or, as the principle is often stated, an executor is ordinarily responsible only for assets which he receives, and not for those which his co-executor receives; but if property of the estate comes to his possession and is then put by him into the possession of his co-executor, he becomes liable for misappropriation by the latter.1

It is often difficult to decide, under given circumstances, whether the executor has had such possession as to render him liable for the embezzlement of his co-executor. Thus, in the leading case of Langford v. Gascoyne, there were three executors who met the day after the testator's funeral at his home, and the widow, who, under the will, had a life estate in the real and personal estate, brought in a bag of money which she delivered to one executor who counted it, and then delivered it to another who kept it, and afterwards spent it for his own use. It was held that the executor who counted the money had, by that act, and by delivering it to the other, made himself liable to the estate.2

In a recent case in New York, a sum of money belonging to the estate was paid to

1 Langford v. Gaacoyne, 11 Ves. 333; Croft v. Williams, 88 N. Y. 384; Wright v. Dugan, 15 Abb. New Cas. 107; McKim v. Aulbach, 130 Mass. 481; Knight v. Haynie, 74 Ala. 543; Edmunds v. Crenshaw, 14 Pet. 169; Wyckoff v. Van Siclen, 3 Demar. (N. Y.) 75; Young's App. 99 Pa. St. 74; Head v. Bridges, 67 Ga. 227; Adams v. Gleaves, 10 Lea (Tenn.), 367; Lacy v. Davis, 5 Redf. 301; Cocks v. Barlow, Ib. 406; Dixon v. Storm, Ib. 419; Paulding v. Sharkey, 88 N. Y. 432. 2 Langford v. Gascoyne, 11 Ves. 333.

one executor in the presence of the other, without the latter either assenting or objecting to the payment, and it was held that the latter was not bound to supply the loss caused by the misappropriation of the money by the former, since he had never had possession of the money. In another New York case, the two executors, one of whom was the widow, met in a room in the deceased's house, and the widow then brought out a box containing securities, which were appraised and inventoried, returned to the box, and then the box taken by the other executor. In this case it was held that the widow was not liable, the court holding that she had no possession of the securities. But the question naturally arises. in whose possession were the securities, if not in her possession? She was living in the house after her husbands death, and it did not appear that any one else interested in the estate was living there. She had, undoubtedly, such possession of the house as would support an action of trespass against a trespasser without title, and it seems clear that she could have maintained an action of trover for the conversion of the chest of securities against one who wrongfully should have taken it away. Having such possession of the securities she was entitled to keep it as against her co-executor, and having once had this possession on the general principle, it seems that she should have been held liable, unless she had some good reason for paying the money over to the co-executor. In a Massachusetts case, the executors jointly released a mortgage, and sent the release to the mortgagor by an express company. The mortgagor returned the money by the same express company to one of the executors, who misappropriated it without the knowledge of the other. The court held the other not liable, and said that the general rule applied, i. e.. that an executor was responsible only for the assets actually received by him, and that in this case the joint release, being a merely formal act, did not amount to any such direction or authority over the money as would render him liable, and sustained the case of joint receipts by

3 Croft v. Williams, 88 N. Y. 388.

4 Wright v. Dugan, 15 Abb. New Cas. 107.

5 Langford v. Gascoyne, supra.

6 McKim v. Aulbach, 130 Mass. 481.

co-executors where only the one who actually receives the money is liable for it.

If, however, the executor gets possession of assets and then hands them over to another executor, the second question arises, what were his reasons for doing this, for, in some cases, where an executor, in good faith and under circumstances which make the action clearly for the benefit of the estate, delivers over assets to his co-executor, he is not liable for misappropriation by the other. Thus, in the leading case on this point, one executor resided near the late residence of the deceased in Suffolk, the other having the assets resided in London. The latter paid over to the former money to be used in paying local debts of the testator, thinking that the estate would thereby be saved money, and knowing that his co-executor had been employed as attorney and general business agent by the testator. The court held that these circumstances exonerated the London executor from liability for misappropriation by the Suffolk executor. Again, in another case,8 Lord Campbell says, that if an executor in London remits money to pay debts to his co-executor in Suffolk, "he is considered to do this of necessity; he could not transact business without trusting some person, and it would be impossible for him to discharge his duty if he is made responsible when he remitted to a person to whom he would have given credit, and would, in his own business, have remitted money in the same way." These are but instances of cases where an executor may exonerate himself, but he must make out a clear and strong case in order to bring himself within the benefit of this exception. The third question does not seem to demand special discussion, since it results from general principles of equity that, if an executor stands by and sees a co-executor misappropriate funds of the estate, both will be liable."

The foregoing discussion is based upon the common law. In many of the States, statutes provide that the executors must give bond for the faithful execution of their

7 Bacon v. Bacon, 5 Ves. 331.

8 Joy v. Campbell, 1 Sch. & Lef. 341.

9 Booth v. Booth, 1 Beav. 125; Styles v. Guy, 1 Mac. & G. 433; Wood v. Brown, 34 N. Y. 137; Heath v. Allen, 1 A. K. Marsh, 442; Weigand's App. 28 Pa. St. 471.

duties. In that case, if the executors give a joint bond each is liable for the default of the other during the continuance of the joint executorship.10 The death of one of two executors, however, determines the joint executorship, and the estate of the deceased executor is not liable for misappropriation occurring after the death.11 There are also many States where the executors may, by request of the testator in the will, be exempted from giving bond, and in many States also executors may give separate and several bonds. 12 In these cases the common law rules, as stated above, are in force. 15

Boston, Mass.

S. G. CROSWELL.

10 Brazer v. Clark, 5 Pick. 96; Towne v. Ammidown, 20 Pick. 535; Ames v. Armstrong, 106 Mass. 18, 19; Sparhawk v. Buell, 9 Vt. 41; Boyd v. Boyd, 1 Watts, 365; Pearson v. Darrington, 32 Ala. 227; Clark v. States, 6 Gill & J. 288; Bostich v. Elliott, 3 Head, 507; Morrow v. Peyton, 8 Leigh, 54.

11 Brazer v. Clark, 5 Pick. 96; Towne v. Ammidown, 20 Pick. 535.

12 Ames v. Armstrong, 106 Mass. 19; Mass. St. 1874, ch. 366; Pub. Stat. ch. 143, sec. 3.

13 McKim v. Aulbach, 130 Mass. 481.

IMPLIED WARRANTIES ON THE LET

TING OF PREMISES.

There are certain well-established principles of law relating the sale of chattels and the warranties implied by the law as to their fitness for a particular purpose. If a person sees a particular chattel in a shop and buys it, trusting that it will be fit for a particular object which he has in view, he has no remedy against the vendor of the article if it turns out to be unfit for that purpose. But if the same person buys or orders a chattel for a specific purpose from a person who usually deals in such articles, the law implies that the chattel so bought is warranted fit for that particular purpose; and if it turns out not to be fit for that purpose the purchaser has a remedy against the vendor for breach of warranty. That does not seem, at first sight, to be any sufficient reason why the same principles should not apply to contracts for the sale or letting of real property, whether of land or of houses. At present, however, these principles apply only to a limited extent, and it is the object of the fol

lowing observations to indicate how far and in what cases they do apply.

In Smith v. Marrable, it was held that it was an implied condition in the letting of a furnished house that it is reasonably fit for habitation, and that if it be not so fit, for example, if it is greatly infested with bugs, the tenant may quit without notice. This case is generally regarded as a leading case, and is always cited when a question of implied warranty arises. It will be observed that it related to a furnished house. In the cases which immediately followed, an attempt was made to extend the principle of the decision to include land and unfurnished houses. In Sutton v. Temple,2 the defendant had taken a demise of the eatage of some twenty-four acres of land. He entered into possession and stocked the land with beasts, but hardly had he done so when a number of his cattle died from the effects of a poisonous substance which had accidentally been spread over the field without the lessor's knowledge. The defendant thereupon removed the remainder of his cattle, quitted occupation, and refused to pay any rent. In an action to recover the rent it was held that the plaintiff was entitled to recover. Smith v. Marrable was distinguished on the ground that the demise in that case was a house and furniture. In such a case the furniture was the principal thing demised, for that was necessary to make the house fit for immediate occupation. The ordinary rule of law as to the warranty of fitness of a chattel might, therefore, be properly applied to a furuished house. But it was otherwise in the case of a demise of land. In such a case there is no implied warranty that the land is fit for the purpose for which it was taken by the tenant. In the absence of an express warranty, therefore, the tenant must pay his rent although the land may not turn out fit for occupation, or for the purpose for which it was taken. The next case, Hart v. Windsor, related to an unfurnished house. There the defendant took a house and garden, but on entering into possession found the house so infested with bugs that he could not stay in it. In an action for the rent, it was held that there is no implied warranty on a lease of a house or of

1 11 M. & W.5.

2 12 M. & W. 52.

3 12 M. & W. 68.

4

plaintiff, in a condition dangerous to the lives and injurious to the health of the defendant and his family, and wholly unfit for habitation; that the plaintiff had been requested to put the premises in a state fit for habitation and had refused, whereupon the defendant quitted the house. On demurrer this plea was held bad in law. The house being unfurnished, the case was governed by Hart v. Windsor, and not by Smith v. Marrable. The case of Smith v. Marrable, though followed once or twice, as we have seen, was not accepted as a final decision of the law. This may be gathered from some of the judgments in Surplice v. Farnsworth, particularly that of Coltman, J., at p. 316; while in Heard v. Camblins, referring to it as "the famous case upon bugs," said that it was overruled by Hart v. Windsor. But it was never act

8

land that it is or shall be reasonably fit for habitation, occupation, or cultivation, and that there is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let. Both in Sutton v. Temple and in Hart v. Windsor, the case of Smith v. Marrable was referred to and distinguished as relating to a house and furniture. The next case, Keates v. The Earl of Cadogan, carries out the principle of Hart v. Windsor to an extreme. There it was held that there is no implied duty in the owner of a house, which is in a ruinous and unsafe condition, to inform a proposed tenant that it is unfit for habitation; and that no action would lie against him for an omission to do so, in the absence of express warranty or active deceit. Smith v. Marrable was followed in Campbell v. Lord Wenlock.5 In that case Cockburn, C. J., held that, upon the letting of a fur-ually challenged until 1877, when the quesnished house for present occupation, with an express condition that it is fit for occupation; if it is not so, and is at once given up on that account, the landlord cannot recover either the rent or for use and occupation. On such a contract, whether express or implied, it is a breach of the condition if the house is so infested and overrun with bugs as to render it unfit for occupation; and, as the condition applies to the whole house, it is a breach if any of the rooms are in that state. But it must appear that the nuisance existed to a serious and substantial extent, and was such as the tenant could not reasonably be expected either to endure or to extirpate. The learned judge, in his summing up, said, that it did not matter, in his opinion, whether there was an actual express contract that the house should be put into a fit state or not, for he was of opinion, as already intimated, that upon principles of law there was an implied contract that a furnished house let for present occupation should be fit for such occupation. The next case in order of time was that of Murray v. Mace, decided in 1874 by the court of exchequer in Ireland.

6

There

is an action by the landlord for rent of a house, the defendant pleaded that the house, in consequence of bad and imperfect sewerage, became, through the neglect of the

4 10 C. B. 591.

5 4 F. & F. 716.

6 L. R. 8 C. L. (I.) 396.

tion arose in the well-known case of Wilson v. Finch Hatton.9 In that case the defendant had agreed to rent the plaintiff's furnished house for three months from the 7th of 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. 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. The plaintiffs having sued for the rent and for use and occupation, it was 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. Kelly, C. B., said: “I am prepared to hold that the law as laid down in Smith v. Marrable is good and sound law, and I may add that, although some disussions may have taken place about that case, and although some doubts may have been thrown on the law as there propounded by judges of learning and eminence, still I have no hesitation in holding that it is an implied condition in the letting of a furnished house, that it shall be reasonably fit for habitation. I am, therefore, of opinion, that, both on authority of Smith v.

7 8 S. N. R. 307.

8 15 L. T. (O. S.) 437.

9 2 E. D. 336.

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