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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 presi. dents know so much about—"pressure.” The pressure of the reactionists is constant, wbile 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 bindrance 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 Frinch, 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.
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 w 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 ani. mation. 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.— Teras Siftings.
Dog Laws.-A dog jaw 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 bas 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.
PLAUSIBLE. Magistrate: “Well, Patrick, what have you got to say about stealing the pig?”
Patrick: “Well Y'r Honnor-r, ye see, it was jist this: the pig tuk upon bim to sleep in my bit of a garden for three noights, y'r Honn'r-r, and I jist sayzed him for the rint!"-Judy.
PURLOINING A JUDGE'S SALARY.-One of the boldest and most remarkable cases of forgery by a boy ever known in Philadelphia bas just come to ligbt, 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. Asbman." 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. It said: "Please send up your bill. Something's wrong
The Central Law Journal. pecuniary means. The expense of addi
tional judges and courts cannot be pleaded
as an excuse in a country in which one of the ST. LOUIS, OCTOBER 22, 1886.
leading questions of the day is: what shall the
government do with its surplus money? CURRENT EVENTS.
In many of the States the same evil exists; in some it has been partially remedied by the
organization of intermediate courts and comCROWDED DOCKETS. -In our article on jury
missioners, and by following the Federal pretrials in our last issue, we expressed the opin
cedent, of denying to minor litigants the benion that very little of the law's delay is in
efit of appellate revision of the judgments of civil cases attributable to the jury system. It
subordinate courts. is more fairly chargeable to the judges, or to
That the pecuniary limitation on the jurisbe still more accurate, and to put the respon
diction of appellate courts is undemocratic, sibility upon, the primary delinquent, to the
is obvious; it denies to the poor, judicial falegislative branch of the government, which
cilities for obtaining justice enjoyed by the fails to provide an adequate judicial force.
rich. It is, however, unavoidable, and if the So far as the United States are concerned, the
the limitation is reasonable, is no doubt jufollowing slip from a newspaper tells the
dicious. With that limitation and the aid of whole story:
commissioners and intermediate courts, the "WASHINGTON, D. C., Oct. 10.—The Oc
fact remains that in most of the States the tober term of the Supreme Court of the dockets of the appellate courts are still too United States opens here to-morrow with a full, and the course of justice is still impeded. larger and more crowded docket than ever Whether this results from the litigious spirit before. A year ago when the court met there
of the people, or distrust of the courts of the were 1,033 cases on the docket, to-morrow
first instance, might be a question. Whatever there will be 1,100 facing the court. Last
may be the cause, the duty of the governyear the court cleared up about 400 cases and
ment, State and Federal, is the same—to with that number as a fair basis of work for
provide such judicial facilities as will insure the coming year, the court, it may be said, is
the speedy administration of justice. nearly three years behind, and with fair prospects of running still further behind this and succeeding years, unless Congress does something to remedy matters."
NOTES OF RECENT DECISIONS. From this it appears that any litigant unfortunate enough to be involved in a “Fed INSURANCE-FIRE AND STORM_CONDITION eral question,” no matter how just bis cause, -VACANCY OF House.-In the Supreme or how urgent bis need, must after the ordin Court of Iowa an insurance case of some ary delays of the lower courts, submit to the interest was recently decided. The action torture of hope deferred for three long years was brought on a policy of insurance against before the Supreme Court of the United fire and storms, and it appeared that the States can do him justice. For two good house was destroyed by "a bigh wind cyclone reasons this condition of affairs is utterly in or tornado.” In the policy was a condition excusable. One is that the delay is, in many that the company should not be liable while cases, an absolute denial of justice. Under
the premises shall be vacant or unoccupied. the present conditions of society and busi The tenant before the loss occurred had ness, a delay for three years, is quite equiva- moved out of the house leaving in it nothing lent, in evil consequences, to a delay of but a few tools. twenty years in Lord Eldon's time. The The court held that a condition in a conother is that it is the constitutional duty of tract cannot be disregarded when it is atCongress to provide for the due administra
tempted to enforce the contract. tion of justice, it ought to have the wisdom to do so, and it assuredly has superabundant Sexton v. Hawkeye etc. Co., The Reporter, Vol 22:
Vol. 23.-No. 17.
“The parties contracted that the building premium.' And in Massachusetts, a shop should not be permitted to be vacant or un was held to be “unoccupied" within a like occupied. We cannot vary or depart from condition in the policy, if no practical use their contract. It may be, but the point we was made of it. And a farm-house is “undo not determine, that if the condition re occupied” when it is only used by the owner quired the performance of acts which in no and his servants to take their meals in, and a way affected the hazard, or the non-perfor-barn is "unoccupied” when it is only used for mance of which could work defendant no
the storage of grain, hay and farming tools.6 prejudice, that the courts would not regard And if the terms are more stringent the condiit. But it cannot be justly claimed that the tion will be fully enforced ; thus, where there hezard of “high winds, cyolones, or torna was, “warranted a family to live in said does" was not increased by the vacancy of house throughout the year," the court held it the building. The occupants of a dwelling, a breach of the warranty that, at the time of for their own safety, and the protection of the fire and for some time before, the only the property they may have in it, will exer occupancy of the house was by two workmen cise care for the protection of the building who took their meals there and were at work by keeping closed and secure the windows elsewhere in the day, but slept in the house and doors of the house during high winds, at night. If the condition is that the house which would, to some extent, secure to it shall not, during the term, become vacant if increased stability and capacity of resistence the assured can prevent it, it is incumbent to storms. The tools and other articles of upon him to prove that the house became vathe plaintiff, and other articles owned by the cant by reason of causes beyond his control.8 tenant in the house at the time of the loss, Of course the contract in such cases must did not constitute occupancy, as contemplated receive a reasonable construction, and not by the policy: The building was described only so, but the “unoccupied” condition of in the policy as a 'dwelling-house,' and was the house must be shown to have existed at insured under the policy as such.
the time of the disaster, and that, in a proper tract contemplates that it shall be occupied sense, it was unoccupied. In an Iowa case, as a dwelling. Its occupancy, for the pur the court expresses this limitation thus: “Of pose of storing tools, jars, etc., did not com course the terms of the contract must receive ply with the condition against the vacancy of a reasonable construction. The parties did the building.”
not intend that one tenant should not move That the condition of occupation expressed out and another move in. Nor did they inin the policy is material to the risk, is well tend that the house should be deemed vacant settled by authority. In New York a summer if the occupant should close it and go off on residence was burned; the policy had a con a visit, and not occupy it for a reasonable dition that it should be void if the house re time." mained vacant without the consent of the insurer for more than thirty days, and a breach of that condition defeated a recovery.?
CARRIER OF PASSENGERS
MASTER AND And in Missouri there was a like ruling in a
SERVANT-DAMAGES-EXEMPLARY DAMAGES. similar case, although the plaintiff had left a
- The Supreme Court of Tennessee has reman in charge, with instructions to sleep in
cently held, that a deck passenger on a the house every night, which he did until within
steamboat may recover, against the owner of a few days before the fire, when he left the
the boat, exemplary damages for an assault premises. To the same effect is a Wiscon
committed on bim by the mate of the boat.10 sin ruling on a policy which recited that unoccupied premises must be insured as such,"
4 Wustine v. City etc. Co., 15 Wis. 139. and vacated the policy if the occupant va 5 Keith v. Quincy etc. Co., 10 Allen 228. cated the premises without immediate notice 6 Ashworth v. Builders' etc. Co., 112 Mass. 422; see
also Corrigan v. Connecticut etc. Co., 122 Mass. 298. to the insurer and the payment of additional
7 Poor v. Humboldt etc. Co., 125 Mass. 274.
8 North American etc. Co. v. Zanger, 63 Ill. 464. 2 Herman v. Adriatic etc. Co., 85 N. Y. 162.
9 Dennison v. Phænix Ins. Co., 52 Iowa 457. 3 Cook v. Continental etc. Co., 70 Mo. 610.
10 R. R. Springer etc. Co. v. Smith, 1 S. W. Rep. 280.
The defense relied upon was, that the plaint- pal arises from the acts of agents, employes, iff, consorting with certain deck hands, vio- or officers, the law is well settled, in Tenneslated, with them, the rules of the boat, and see the rule prevails in respect to exemplary that the mate had used no more force than damages. 13 was necessary to secure proper behavior by the plaintiff, and preserve the property of 13 Haley v. Mobile & 0. R. Co., 7 Baxt. 240; Louisthe shippers from plunder. And further that
ville & N. R. Co. v Garrett, 8 Lea 438; Louisville N. &
G. S. R. Co. v. Guinan, 11 Lea 98; see also Sedg. Dam. if, in inflicting the injury complained of, the
(6th ed.) note on pages 570, 571. mate had exceeded his rightful powers, the defendant company was not liable, as the acts complained of were without the scope of his authority.
ACTION OF USE AND OCCUPATION It appeared, however, to the satisfaction
AGAINST A TRESPASSER. of the jury, that the mate ahused his rather indefinite authority, and in administering the 1. General Principles-Necessity of the Existence of
the Relation of Landlord and Tenant. customary discipline to the deck hands,
2. The Action Will not lie Against a Trespasser"took in” the plaintiff also, and kicked him
Illustrative Cases. in the mouth. The jury therefore rendered 3. Summary. a verdict against the defendant company,
4. Observations—The Doctrine Examined. owners of the boat, for $1,250 damages. Upon appeal the Supreme Court said:
1. General Principles-Necessity of the "That the court charged the jury, and we
Existence of the Relation of Landlord and think properly, that if the mate, while in
Tenant.—The general doctrine, supported by charge of the vessel, committed an unwar
an almost unbroken line of authorities, is, rantable assault upon the plaintiff, a passen
that the action for use and occupation lies ger, plaintiff might recover. In the opinion only where the conventional relation of landof Justice Clifford, of the Supreme Court of
lord and tenant subsists between the parties, the United States, sitting in United States
founded upon agreement, expressed or imCircuit Court, Rhode Island District, it is said
plied. the principles of law applicable to the rela
And at common law this action could not tions of master and servant, do not fully de
be maintained upon a lease for years, either fine the rights, duties, and obligations be
pending or after the expiration of the term, tween carriers and their passengers. The
"for a lease was considered to be a real con
tract, the only remedies upon which were, by carrier agrees to carry, for hire, the passen
distress or action for debt on the demise.” 2 gers from one place to another, and is responsible for any breach of the obligation
While this was the general common law they assume, in the ill treatment of the pas
rule, yet, however, a few cases permitted the
action.3 senger, 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
1 Wood's Landlord & Tenant, p. 948; Hathaway v.
Ryan, 35 Cal. 188; Murdock v. Brooks, 38 Cal. 596; dispute with one of the passengers, and in
Harley v. Lamoreaux, 29 Minn. 138; S. C., 12 N. W. flicting personal injuri s upon him, the owner Rep. 447; Taylor on L. & T., $ 636; Abbott's Trial Ev., was liable; and this would be so, irrespective
351; Carpenter v. U. S, 17 Wall. 489; Boston v. Bin.
ney, 11 Pick. 1; Mayo v. Fletcher, 14 Pick. 525; O'Falof the dispute, and as if none had arisen, al
lon v. Boismenn, 3 Mo. 405, 408–9; Ackerman v. Ly. though defendant did not authorize the acts man, 20 Wis. 54; The Aull Savings Bank v. Aull, 80
Mo. 199, 201; Holmes v. Williams, 16 Minn. 164; Hood of his employe. Exemplary damages, in ac
Mathias, 21 Mo. 308, 313; Bancroft v. Wardwell, 13 tions for torts, are given, where fraud, mal- Johns. 490; 8. C., 7 Am. Dec. 396, note; Hutton v.
Powers, 38 Mo. 350, 356; Cohen v. Kyler, 27 Mo. 122; ice, gross negligence, or oppression inter
Newly v. Vested, 6 Ind. 413; Smith v. Stewart, 6 venes, and where the liability of the princi- Johns. 46; The De Pere 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 West11 This principle is declared in Thomp. Carr. 352, ern Rep. 551. and in the case, therein reported, of Pendleton v. 2 Featherstonbaugh v. Bradshaw, 1 Wend. 135; TayKinsley, reported in 3 Cliff. 416.
lor on Land. & Tenant, $ 635. 12 Sedg. Dam. 35.
3 Crouch v. Brilles, 7 J.J. Marshall, 257; Pott v.
“In order to obviate the difficulties, which not as tenant, but adversely, or where the occurred in the recovery of rent, where the circumstances · under which he enters show demise was not by deed the statute of II that he does not recognize the owner as his Geo. II, C. 19, sec. 14, authorized a recovery landlord, the action of use and occupation in an action on the case, for the use and oc- will not lie. 13 cupation of the premises."'4
And the question as to whether an implied The Missouri Statute also provides, that contract of tenancy existed is said to be for "a landlord may recover a reasonable satis- the jury. 14 faction for the use and occupation of any Many authorities hold that neither an exlands or tenants, held by any person under
press demise nor an express promise is necan agreement not made by deed.'5
essary to sustain this action; but that it is The revised Statutes of New York contain
sufficient if the defendant held as a tenant of substantially the same provisions, as well as
the plaintiff or by his permission or suffermany other state statutes.
ance, recognizing the plaintiff's title, for the It seems that this legislation does not
reason that in such cases the law will imply a change the general rule, for it is held that
promise to pay a reasonable sum for such use the relation of landlord and tenant must still
and occupation.16 exist to support this action. The law will
To sustain the action, "something in the naimply a contract to pay rent from the mere
ture of a demise must be shown, or some evifact of occupancy, yet, no implication can
dence given to establish the relation of landarise where there was no tenancy in contem
lord and tenant. That relation can only grow plation between the parties, or where neither
out of contract.
The contract need party expected to pay rent,? or where the
not be technical and formal, but there must position of the parties to each other can be
at least be a permissive occupation by the referred to any other ground than that of a
tenant. distinct tenancy,8 or where the occupancy is
Occupation by the tenant with the
assent of the landlord is indispensible to the of such a character as to negative the exis
maintenance of the action.”:16 tence of a tenancy.' Occupancy alone will raise this relation by
Where the defendant occupies the premises implication only where it has been with the. by mere license of plaintiff, it being revocable assent of the owner, 10 and without any act or
at plaintiff's pleasure, so long as it remains claim on the part of the occupant, inconsis
executory, and, until so countermanded, it tent with an acknowledgement by the occu
can only operate as an excuse for trespass, pant of the owner as his rightful landlord.11
or, if the occupancy is not with permission of But this implication may be rebutted by
plaintiff, then it is a mere trespass and not a
demise. The relation of landlord and tenant proof of a contract, or any other facts inconsistent with the existence of such a relation. 12
13 Butler v. Cowles, 4 Ohio, 213. The authorities affirm that the facts must
14 Chamberlain v. Donahue, 44 Vt. 57; Wood's Land. show, expressly or impliedly, that the de
& Ten., 948; Chambers v. Ross, 25 N. J. L. 293. fendant occupied as tenant of the plaintiff. 15 See Gunn v. Scovill, 4 Day (Conn.), 228; s. C., 4
Am. Dec. 208, which holds that an action of indebita. When a person occupies the land of another,
tus assumpsit, may be maintained on the implied
promise, arising merely from the use and occupation Lesber, 1 Yeat. 578; Roberts v. Lemel, 3 Munr. 253; of real estate, by permission, without an express Green v. Scovil, 4 Day, 228; Epps v. Cole, 4 Hen. & promise to pay rent, and this in the absence of statute, Munf. 161; 8. C., 4 Am. Dec. 512.
by virtue of common law principles. Wood's Land. & 4 Taylor's Land. & Ten., $ 635.
Ten., 699. “Almost any evidence which shows the re51 R. S. Mo. 1879, $ 3081, p. 516.
lation of landlord and tenant to exist between the par. 61 R. S. 739, $ 26; Tavlor's Land. & Ten., $ 635. ties, will support this action. It is not necessary for 7 Clark v. Clark's Admr., 2 New Eng. Rep. (Vt.) 213. the plaintiff to prove an express contract with the ten8 Taylor's Land. & Ten., $ 636.
ant when he took possession; or any particular reser9 Chambers v. Ross, 25 N. J. L. 293, 294. See Moore
vation of rent; nor that the tenant has once paid rent; v. Harbey, 50 Vt. 297, 300.
for an understanding to that effect will be implied, in 10 Wood's Land. & Ten., 948.
all cases where a permissive holding is established.” 11 Chambers v. Donahue, 44 Vt. 57.
Taylor, $ 635; 2 Gill. & Johns. 326; 6 Ad. & El. 839, (n ) 12 10.; Stacy v. R. Co., 32 Vt. 551; Hough v. Birge, See, also, Sutton v. Mandeville, 1 Munford, 407; s. C., 11 Vt. 190; Strong v. Garfield, 10 Vt. 502. See Stocket 4 Am. Dec. 549; Eppes v. Cole, 4 Hen. & M. 161; s. C., v. Walkins, 2 Gill. & John. 326; s. C., 20 Am. Dec. 4 Am. Dec.512. 438, with note.
16 Central Mills Co. v. Hart, 124 Mass. 123, 125.