JETSAM AND FLOTSAM.

THE Congregation of the Inquisition at Rome has just issued a decree that has created a great sensation in Belgium, forbidding Catholic judges to grant divorces to Catholic suitors. There has been a divorce law in force in Belgium since 1803, and it has been administered under six different Popes without interference. Moreover, Leo XIII. passed three years at Brussels as Papal Nuncio, and witnessed its operation. His allowing the issue of this decree by the Inquisition is, therefore, looked on now as signifying in some degree the triumph of the Jesuit reactionists at the Vatican, and it promises a renewal of the bitter war between the Liberals and the clergy in Belgium. It probably means that the declining health of the Pope creates increased difficulty in resisting what our presidents know so much about-"pressure." The pressure of the reactionists is constant, while the power of resistance varies greatly in different men and at different periods of life. The persons whom the decree will most perplex, however, are the Catholic judges. They have sworn already to administer the law, and have been administering it without scruple or hindrance from ecclesiastical authorities. They must administer it still or resign. It will be interesting to see how many will do so; that is, how many will risk eternal damnation in order to keep their places. It seems rather hard on them, too, to be singled out for restrictions which are not imposed on their French, or English, or American' brethren. The English or American judges could escape by leaving divorce cases to the Protestant brethren, but in Belgium the judges are all Catholic, and generally pious.-The Nation, N. Y.

PURLOINING A JUDGE'S SALARY.-One of the boldest and most remarkable cases of forgery by a boy ever known in Philadelphia has just come to light, and it was no fault of the boy that he did not succeed in getting away with a large sum of money. James Barber, sixteen years old, who lives on the top floor of the Orphan's Court building, is in prison on the charge of larceny and forgery. Detectives Muller and Sharkey on Saturday arrested him in Mount Moriah Cemetery for stealing a warrant for $1,750 belonging to Judge William N. Ashman, and forging the name of the judge and that of City Treasurer Bell in an attempt to have it cashed. The warrant represented the judge's salary for three months, and was delivered by a lettercarrier at the court building on May 26, it having been sent by mail from the auditor-general's office at Harrisburg. The lad either took it from the mail-box or from a table in the judge's room. He then wrote a letter to City Treasurer Bell, saying: "Please give me a check for this warrant, and send by bearer. Yours, W. N. Ashman." Young Barber took the warrant and forged note to Mr. Bell. The warrant was not indorsed, and the lad was told to take it to the judge and have him sign his name on the back. The hopeful forger left, but instead of going to Judge Ashman he stopped at a place in the vicinity, and placed the judicial signature on the back of the paper. He again visited the city treasurer, who, upon carefully scanning the warrant, discovered that the amount was written $1,700 in the body of the warrant, while the figures were $1,750. The lad was again directed to return with the warrant to Judge Ashman, and a letter written by the city treasurer calling attention to the mistake in the warrant was also sent. When a safe place was reached the redoubtable youngster destroyed Mr. Bell's note and composed one of his own. said: "Please send up your bill. Something's wrong

It

in your account." When the note was delivered to Judge Ashman he was puzzled, and said he would call at the city treasury. When he called there the judge and city treasurer soon learned the true state of affairs. The detectives were immediately employed to catch the thief and forger. Later in the day, seeing that he was baffled, he sent the warrant to Judge Ashman, with a letter signed "Jimmy So-so." When arrested, he made a confession.

THE Irish bull is sometimes introduced into this country with the most gratifying effect. Baron Dowse, of the Irish Exchequer, let loose some famous specimens when he sat in the House of Commons. Replying to a question relating to some sectarian celebrations in Derry, he is reported to have said: "These celebrations, sir, take place at an anniversary which occurs twice a year in Derry." The other evening we encountered an equally well-developed example of the bull. A member of the English Bar, an Irishman well known in society for his many amiable qualities, was discussing a current topic with considerable animation. He was occasionally interrupted by one of the company, and at length becoming irritated, he addressed his friend with much dignity, and said: "You can interrupt me, surr, when I'm done speaking!" -Pump Court (Eng).

THE COURT HAD A FELLOW FEELING.- Major Gassaway, a prominent San Antonio lawyer, is famous for his long speeches. They are so long they cause his clients to get long sentences from the exasperated jury.

Recently Major Gassaway defended a murderer, and addressed the jury off and on for the better part of two days. The jury gave the man imprisonment for life in the penitentiary, and they would have given Gassaway twice as much if they could have legaily done so.

When Judge Noonan, who was on the bench, asked the doomed man the usual question as to his having objection to sentence being pronounced on him according to law, the latter replied:

“I think, your honor, that the time consumed by my attorney, in addressing the jury, ought to be deducted from my term of imprisonment."

Judge Noonan said that he thought so, too.-Texas Siftings.

DOG LAWS.-A dog law is everywhere and at all seasons the occasion of much miscellaneous growling. -Hark to the London Law Journal.

"The dog controversy is raging furiously. One 'leading' journal has opened a 'London Dog-hunt' column to the rabid correspondents on both sides. It is needless to remark that in a controversy conducted as this is likely to be, there will be plenty of bad language and irrelevant matter. But it will do some good if it convinces the Commissioner of Police that the metropolis is not a nigger settlement, and that the warning surtout point de zele applies with peculiar force to the administration of the police laws in such an unwieldy overgrown community as London."

"Nigger settlement" is good! On this side of the water it has been defendu for twenty years past to spell the word with two g's.

ST. LOUIS, OCTOBER 22, 1886.

CURRENT EVENTS.

CROWDED DOCKETS.-In our article on jury trials in our last issue, we expressed the opinion that very little of the law's delay is in civil cases attributable to the jury system. It is more fairly chargeable to the judges, or to be still more accurate, and to put the responsibility upon, the primary delinquent, to the legislative branch of the government, which fails to provide an adequate judicial force. So far as the United States are concerned, the following slip from a newspaper tells the whole story:

"WASHINGTON, D. C., Oct. 10.-The October term of the Supreme Court of the United States opens here to-morrow with a larger and more crowded docket than ever before. A year ago when the court met there were 1,033 cases on the docket, to-morrow there will be 1,100 facing the court. Last year the court cleared up about 400 cases and with that number as a fair basis of work for the coming year, the court, it may be said, is nearly three years behind, and with fair prospects of running still further behind this and succeeding years, unless Congress does something to remedy matters."

From this it appears that any litigant unfortunate enough to be involved in a "Federal question," no matter how just his cause, or how urgent his need, must after the ordinary delays of the lower courts, submit to the torture of hope deferred for three long years before the Supreme Court of the United States can do him justice. For two good reasons this condition of affairs is utterly inexcusable. One is that the delay is, in many cases, an absolute denial of justice. Under the present conditions of society and business, a delay for three years, is quite equivalent, in evil consequences, to a delay of twenty years in Lord Eldon's time. The other is that it is the constitutional duty of Congress to provide for the due administration of justice, it ought to have the wisdom to do so, and it assuredly has superabundant Vol. 23.-No. 17.

tional judges and courts cannot be pleaded as an excuse in a country in which one of the leading questions of the day is: what shall the government do with its surplus money?

In many of the States the same evil exists; in some it has been partially remedied by the missioners, and by following the Federal preorganization of intermediate courts and comcedent, of denying to minor litigants the benefit of appellate revision of the judgments of subordinate courts.

That the pecuniary limitation on the jurisdiction of appellate courts is undemocratic, is obvious; it denies to the poor, judicial facilities for obtaining justice enjoyed by the rich. It is, however, unavoidable, and if the the limitation is reasonable, is no doubt judicious. With that limitation and the aid of commissioners and intermediate courts, the fact remains that in most of the States the dockets of the appellate courts are still too full, and the course of justice is still impeded. Whether this results from the litigious spirit of the people, or distrust of the courts of the first instance, might be a question. Whatever may be the cause, the duty of the government, State and Federal, is the same-to provide such judicial facilities as will insure the speedy administration of justice.

NOTES OF RECENT DECISIONS.

INSURANCE-FIRE AND STORM-CONDITION -VACANCY OF HOUSE.-In the Supreme Court of Iowa an insurance case of some interest was recently decided. The action was brought on a policy of insurance against fire and storms, and it appeared that the house was destroyed by "a high wind cyclone or tornado." In the policy was a condition that the company should not be liable while the premises shall be vacant or unoccupied. The tenant before the loss occurred had moved out of the house leaving in it nothing but a few tools.

The court held that a condition in a contract cannot be disregarded when it is attempted to enforce the contract.

"The parties contracted that the building should not be permitted to be vacant or unoccupied. We cannot vary or depart from their contract. It may be, but the point we do not determine, that if the condition required the performance of acts which in no way affected the hazard, or the non-performance of which could work defendant no prejudice, that the courts would not regard it. But it cannot be justly claimed that the hezard of "high winds, cyclones, or tornadoes" was not increased by the vacancy of the building. The occupants of a dwelling, for their own safety, and the protection of the property they may have in it, will exercise care for the protection of the building by keeping closed and secure the windows and doors of the house during high winds, which would, to some extent, secure to it increased stability and capacity of resistence to storms. The tools and other articles of the plaintiff, and other articles owned by the tenant in the house at the time of the loss, did not constitute occupancy, as contemplated by the policy. The building was described in the policy as a 'dwelling-house,' and was insured under the policy as such. The contract contemplates that it shall be occupied as a dwelling. Its occupancy, for the purpose of storing tools, jars, etc., did not comply with the condition against the vacancy of the building."

That the condition of occupation expressed in the policy is material to the risk, is well settled by authority. In New York a summer residence was burned; the policy had a condition that it should be void if the house remained vacant without the consent of the insurer for more than thirty days, and a breach of that condition defeated a recovery.2 And in Missouri there was a like ruling in a similar case, although the plaintiff had left a man in charge, with instructions to sleep in the house every night, which he did until within a few days before the fire, when he left the premises. To the same effect is a Wisconsin ruling on a policy which recited that "unoccupied premises must be insured as such," and vacated the policy if the occupant vacated the premises without immediate notice to the insurer and the payment of additional

8

2 Herman v. Adriatic etc. Co., 85 N. Y. 162. 3 Cook v. Continental etc. Co., 70 Mo. 670.

premium. And in Massachusetts, a shop was held to be "unoccupied" within a like condition in the policy, if no practical use was made of it. And a farm-house is "unoccupied" when it is only used by the owner and his servants to take their meals in, and a barn is "unoccupied" when it is only used for the storage of grain, hay and farming tools." And if the terms are more stringent the condition will be fully enforced; thus, where there was, "warranted a family to live in said house throughout the year," the court held it a breach of the warranty that, at the time of the fire and for some time before, the only occupancy of the house was by two workmen who took their meals there and were at work elsewhere in the day, but slept in the house at night. If the condition is that the house shall not, during the term, become vacant if the assured can prevent it, it is incumbent upon him to prove that the house became vacant by reason of causes beyond his control.8

7

Of course the contract in such cases must receive a reasonable construction, and not only so, but the "unoccupied" condition of the house must be shown to have existed at the time of the disaster, and that, in a proper sense, it was unoccupied. In an Iowa case,9 the court expresses this limitation thus: "Of course the terms of the contract must receive a reasonable construction. The parties did not intend that one tenant should not move out and another move in. Nor did they intend that the house should be deemed vacant if the occupant should close it and go off on a visit, and not occupy it for a reasonable time."

CARRIER OF PASSENGERS - MASTER AND SERVANT DAMAGES-EXEMPLARY DAMAGES. -The Supreme Court of Tennessee has recently held, that a deck passenger on a steamboat may recover, against the owner of the boat, exemplary damages for an assault committed on him by the mate of the boat.10

4 Wustine v. City etc. Co., 15 Wis. 139.

5 Keith v. Quincy etc. Co., 10 Allen 228.

6 Ashworth v. Builders' etc. Co., 112 Mass. 422; see also Corrigan v. Connecticut etc. Co., 122 Mass. 298. 7 Poor v. Humboldt etc. Co., 125 Mass. 274.

8 North American etc. Co. v. Zanger, 63 Ill. 464.

9 Dennison v. Phoenix Ins. Co., 52 Iowa 457.

10 R. R. Springer etc. Co. v. Smith, 1 S. W. Rep. 280.

The defense relied upon was, that the plaintiff, consorting with certain deck hands, violated, with them, the rules of the boat, and that the mate had used no more force than was necessary to secure proper behavior by the plaintiff, and preserve the property of the shippers from plunder. And further that if, in inflicting the injury complained of, the mate had exceeded his rightful powers, the defendant company was not liable, as the acts complained of were without the scope of his authority.

It appeared, however, to the satisfaction of the jury, that the mate abused his rather indefinite authority, and in administering the customary discipline to the deck hands, "took in" the plaintiff also, and kicked him in the mouth. The jury therefore rendered a verdict against the defendant company, owners of the boat, for $1,250 damages. Upon appeal the Supreme Court said:

"That the court charged the jury, and we think properly, that if the mate, while in charge of the vessel, committed an

unwar

The

rantable assault upon the plaintiff, a passenger, plaintiff might recover." In the opinion of Justice Clifford, of the Supreme Court of the United States, sitting in United States Circuit Court, Rhode Island District, it is said the principles of law applicable to the relations of master and servant, do not fully define the rights, duties, and obligations between carriers and their passengers. carrier agrees to carry, for hire, the passengers from one place to another, and is responsible for any breach of the obligation they assume, in the ill treatment of the passenger, by himself or employes. And in the case cited it was held that a clerk of a steamer, on one of her regular trips, getting into a dispute with one of the passengers, and inflicting personal injuri s upon him, the owner was liable; and this would be so, irrespective of the dispute, and as if none had arisen, although defendant did not authorize the acts of his employe. Exemplary damages, in actions for torts, are given, where fraud, malice, gross negligence, or oppression intervenes,12 and where the liability of the princi

11 This principle is declared in Thomp. Carr. 352, and in the case, therein reported, of Pendleton v. Kinsley, reported in 3 Cliff. 416.

12 Sedg. Dam. 35.

pal arises from the acts of agents, employes, or officers, the law is well settled, in Tennessee the rule prevails in respect to exemplary damages. 13

13 Haley v. Mobile & O. R. Co., 7 Baxt. 240; Louisville & N. R. Co. v Garrett, 8 Lea 438; Louisville N. & G. S. R. Co. v. Guinan, 11 Lea 98; see also Sedg. Dam. (6th ed.) note on pages 570, 571.

ACTION OF USE AND OCCUPATION AGAINST A TRESPASSER.

1. General Principles-Necessity of the Existence of the Relation of Landlord and Tenant.

2. The Action Will not lie Against a TrespasserIllustrative Cases.

3. Summary.

4. Observations-The Doctrine Examined.

of the

1. General Principles-Necessity Existence of the Relation of Landlord and Tenant. The general doctrine, supported by an almost unbroken line of authorities, is, that the action for use and occupation lies only where the conventional relation of landlord and tenant subsists between the parties, founded upon agreement, expressed or implied.1

And at common law this action could not be maintained upon a lease for years, either pending or after the expiration of the term, "for a lease was considered to be a real contract, the only remedies upon which were, by distress or action for debt on the demise.' " 2

While this was the general common law rule, yet, however, a few cases permitted the action."

1 Wood's Landlord & Tenant, p. 948; Hathaway v. Ryan, 35 Cal. 188; Murdock v. Brooks, 38 Cal. 596; Harley v. Lamoreaux, 29 Minn. 138; s. c., 12 N. W. Rep. 447; Taylor on L. & T., § 636; Abbott's Trial Ev., 351; Carpenter v. U. S, 17 Wall. 489; Boston v. Binney, 11 Pick. 1; Mayo v. Fletcher, 14 Pick. 525; O'Fallon v. Boismenn, Mo. 405, 408-9; Ackerman v. Lyman, 20 Wis. 54; The Aull Savings Bank v. Aull, 80 Mo. 199, 201; Holmes v. Williams, 16 Minn. 164; Hood v. Mathias, 21 Mo. 308, 313; Bancroft v. Wardwell, 13 Johns. 490; s. c., 7 Am. Dec. 396, note; Hutton v. Powers, 38 Mo. 350, 356; Cohen v. Kyler, 27 Mo. 122; Newly v. Vested, 6 Ind. 413; Smith v. Stewart, 6 Johns. 46; The DePere Co. v. Reynen, 65 Wis. 271; s. c., 22 N. W. Rep. 761; Preston v. Hawley, (N. Y.) 2 Central Rep. 762; Vegely v. Robinson (Mo.), 2 Western Rep. 551.

2 Featherstonhaugh v. Bradshaw, 1 Wend. 135; Taylor on Land. & Tenant, § 635.

3 Crouch v. Brilles, 7 J. J. Marshall, 257; Pott v.

"In order to obviate the difficulties, which occurred in the recovery of rent, where the demise was not by deed the statute of II Geo. II, C. 19, sec. 14, authorized a recovery in an action on the case, for the use and occupation of the premises."4

The Missouri Statute also provides, that "a landlord may recover a reasonable satisfaction for the use and occupation of any lands or tenants, held by any person under an agreement not made by deed. ''5

6

The revised Statutes of New York contain substantially the same provisions, as well as many other state statutes.

It seems that this legislation does not change the general rule, for it is held that the relation of landlord and tenant must still exist to support this action. The law will imply a contract to pay rent from the mere fact of occupancy, yet, no implication can arise where there was no tenancy in contemplation between the parties, or where neither party expected to pay rent, or where the position of the parties to each other can be referred to any other ground than that of a distinct tenancy,8 or where the occupancy is of such a character as to negative the existence of a tenancy."

7

Occupancy alone will raise this relation by implication only where it has been with the. assent of the owner, 10 and without any act or claim on the part of the occupant, inconsistent with an acknowledgement by the occupant of the owner as his rightful landlord." But this implication may be rebutted by proof of a contract, or any other facts inconsistent with the existence of such a relation.12

The authorities affirm that the facts must show, expressly or impliedly, that the defendant occupied as tenant of the plaintiff. When a person occupies the land of another,

Lesher, 1 Yeat. 578; Roberts v. Lemel, 3 Munr. 253; Green v. Scovil, 4 Day, 228; Epps v. Cole, 4 Hen. & Munf. 161; 8. C., 4 Am. Dec. 512.

4 Taylor's Land. & Ten., § 635. 51 R. S. Mo. 1879, § 3081, p. 516.

61 R. S. 739, § 26; Tavlor's Land. & Ten., § 635.

7 Clark v. Clark's Admr., 2 New Eng. Rep. (Vt.) 213. 8 Taylor's Land. & Ten., § 636.

9 Chambers v. Ross, 25 N. J. L. 293, 294. See Moore

v. Harbey, 50 Vt. 297, 300.

10 Wood's Land. & Ten., 948.

11 Chambers v. Donahue, 44 Vt. 57.

12 1d.; Stacy v. R. Co., 32 Vt. 551; Hough v. Birge, 11 Vt. 190; Strong v. Garfield, 10 Vt. 502. See Stocket v. Walkins, 2 Gill. & John. 326; s. C., 20 Am. Dec. 438, with note.

not as tenant, but adversely, or where the circumstances under which he enters show that he does not recognize the owner as his landlord, the action of use and occupation will not lie. 13

And the question as to whether an implied contract of tenancy existed is said to be for the jury.14

Many authorities hold that neither an express demise nor an express promise is necessary to sustain this action; but that it is sufficient if the defendant held as a tenant of the plaintiff or by his permission or sufferance, recognizing the plaintiff's title, for the reason that in such cases the law will imply a promise to pay a reasonable sum for such use and occupation.15

*

To sustain the action, "something in the nature of a demise must be shown, or some evidence given to establish the relation of landlord and tenant. That relation can only grow out of contract. The contract need not be technical and formal, but there must at least be a permissive occupation by the tenant. Occupation by the tenant with the assent of the landlord is indispensible to the maintenance of the action."'16

Where the defendant occupies the premises by mere license of plaintiff, it being revocable at plaintiff's pleasure, so long as it remains executory, and, until so countermanded, it can only operate as an excuse for trespass, or, if the occupancy is not with permission of plaintiff, then it is a mere trespass and not a demise. The relation of landlord and tenant

18 Butler v. Cowles, 4 Ohio, 213.

14 Chamberlain v. Donahue, 44 Vt. 57; Wood's Land. & Ten., 948; Chambers v. Ross, 25 N. J. L. 293.

15 See Gunn v. Scovill, 4 Day (Conn.), 228; s. c., 4 Am. Dec. 208, which holds that an action of indebitatus assumpsit, may be maintained on the implied promise, arising merely from the use and occupation of real estate, by permission, without an express promise to pay rent, and this in the absence of statute, by virtue of common law principles. Wood's Land. & Ten., 699. "Almost any evidence which shows the relation of landlord and tenant to exist between the parties, will support this action. It is not necessary for the plaintiff to prove an express contract with the tenant when he took possession; or any particular reservation of rent; nor that the tenant has once paid rent; for an understanding to that effect will be implied, in all cases where a permissive holding is established." Taylor, § 635; 2 Gill. & Johns. 326; 6 Ad. & El. 839, (n.) See, also, Sutton v. Mandeville, 1 Munford, 407; s. C., 4 Am. Dec. 549; Eppes v. Cole, 4 Hen. & M. 161; s. C., 4 Am. Dec. 512.

16 Central Mills Co. v. Hart, 124 Mass. 123, 125.