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baloon is the only method by Place, at the rent of eight guineas which he can reach his peculiar per week, for five or six weeks, at portion of the atmosphere, and this the option of the said Thomas all because Loru MAXSFIELD re MARRABLE." Under this agreefusal to look at the lease as a ment, the defendant and his family contract for the use of a particular entered into pr ssession of the house. thing, which it really was, and On the following day, Lady MARinsisterl upon regarding it RANLX complained to the plaintiff creating a temporary estate or that the house was infested with interest in a portion of the surface bugs, and he sent a persou in to of tlic earth.
take means for getting rid of them. In justice to our courts, however, This means, however, clicl not prove it is fair to say that with us where successful, and at the end of the the leased premises consist of a room first week Lady MARRABLX re. in the building, and the building is moved from the preinises and entirely destroyed by fire or other returned the key to the plaintiff. wise, the tenant is dischargeil from There was no stipulation in the his obligation to pay rent: Stock contract that the house should be well i. Hunter, 11 Met. (Mass.) habitable. The fact that it was a 448; Graves . Berdun, 26 N. Y. furnished house was evidence that 498 ; Pollock on Contracts, 363 et it was to be used as a dwelling scq.
house. Baron PARKE cites, with Other English cases following approval, the cases of Eilward v. Arilen 7. Pullen are Gott ::. Gandy, Etherington and Collins v. Barrow, 2 E. & R 845 ; Keates v. Earl Calle while Lori ABRINGER, who had ogan, io C. B. 591.
distinctly overruled those cases in The English Courts, which seemn Ardon ?'. Pullen, asserts liere that to be abandoning the position of he is "glad that authorities have Lord MAXSFIELD in 1825 and 1830, been found to support the view return to it again in 1839 and 1840. which I took at the trial," and even In 1843. however, the same Lord adds that, for his own part, no ABBINGER, who had decided the authorities are wanted, as its com.. case of Arden r'. Pullen in 1842, mon sense alone enables him to entirely abandoneil his position in decide. The inconsistency of these his lecision in tlie celebrated case two opinions was sucli that it soon or Smith i. Marrable, 11 M. & W. became necessary for the learned 5. (But see Hart v. Windsor, 12 judge to attempt to draw some lis M. & W. 68,. This case, on which tinction between them. This he the peculiar English law on this did in the case of Sutton r'. Temple, subject is largely based, was an 12 M. & W. 52 (1843).
In this action for rent brought to recover a case the rent of a meadow was in balance of five weeks rent of a question. The plaintiff refused to furnished house at Brighton, which pay tlie rent, because the meadow had lxeen rented by the defendant turned out to be unfit for the of plaintiff under the following pasturage of cattle. It is not clear, conditions : "Mr. John th, of from the report of the case, whether 24 St. James Street, agrees to let, the tenant could have used the and Sir Thomas MARRABLE agrees premises in any other way than as to take, the house No. s Brunswick a pasturage. In his decision, in
fivor of the plaintiff, Lord SARIN. Dir.), 336 (1877), would seem to C:ER says: "If this case in:olve the indicate that there would ultimately necessity of overruling the case of be emborliecl in the English law of Smith *. Marrable, I should hesi the obligations of the tenant under late long before I should acquiesce a lease to pay rent the principles of in so doing so, for I entirely approve
the civil law. This last case, as of the decision which we came to in the case of Smith 7. Marrable, was that case." He then sets out the the rent of a furnisher house. Kround of distinction. The first When the tenant moved in sbe riese is the letting of a house and found that the drains were in such furniture Being for both house a conlition that the house was and furniture, it must be meant for not reasonably fit for habitation. occupation. The furniture must KELI,Y, C. B., said, in his opinion, lie fit for use, i. e., so must the pernitting the defence, "we have louse. But he assumes that the allowed me argument to be aillenant in the case before him could dressed to us by counsel for the only use the land as a pasturage. defencant, not because we enterHe aluils that the land cuuld not taineal any real doulst upwon the he userl for pasturage, but it is not question raised in this case, but the lanılloni's fault, he has no because of the general importance knowledge that his field is in a bad of the points involvedl, and because condition and will poison catlle of the comments which had been which are put upon it. Therefore, macle at various times on the law he cannot be held responsible. For as laiil clown in the case of Sunitha. nur own part, we cannot fullow Marrable." The attitulle of the this logic. It seems to us that learned julge is totally different there is no evidence that the plain from that taken by Lond. Jasstiff in Smith :. Marrable knew FIELD in 18u. To his mind the that his premises were infested with contract is for a house, ani nint, 18 brugs or that they were so infested with lonel MANSFIELD for a piece from any fault of his. Why then of land which may happen to have should that case rest on a different # house on it. All through the principle than that of Surton v. opinion, we see the question of Teniple? Where is the real dis what the parties to the lease inten; tinction ?
dled rather than low should Following the trene! of the decis. decide the case as a technical quesion in Sutton i'. Temple. BACOX, tion of real property. The only B. C., in Powell ::. Chester, 52 I.. case citert, as a case in point, is T. Rep. 722, said that the principle that of Tully 7'. Howling, 2 Q. B. D. of the decision in Smith v. Marra 182, which was a case of aclmiralty ble should be confined to where a law on an agreemnent to charter a person rents a house for a month or ship. The other judges who deci. Iwo at the seashore. In that limi cled the case advance at the questation, however, there is no reason.. tion from the same standpoint
We believe that the English That this standpoint reaches results courts will sooner or later overrule wbich are entirely irreconcilable one case or the other and arlopt a with the American law and the consistent principle. The case of position of Lord DIAXSFIELD in Wilson v. Hatton, 1 L. R. (Ex Baker v. Holtpaaffell will soon
become apparent to the English has to pay for his premises burnt Bench. To bold a man liable to or not, can any attorney point to a pay rent if the house burns down, lease which has come under his but to discharge him from the notice which does not provide for obligation if it hoppens to be in. the contingency of the presnises sested with bugs, is absuril. The being destroyed by an act of God. American law which holds a tenant The following are the principal liable under all circumstances, American cases on the subject : except where there bas been fraud Massachusells. Here there is or misrepresentation on tie part of no implied warranty in the rent of the landlord, has at least the advan. a dwelling house that the house take or being perfectly clear anil shall be habitable during the terms : legically consistent. The posi. Buwne ?'. Hunking, 135 Mass. 380 ; tion of the American courts has Foster r. Peyser, 9 Cushi. (Mass.) Also this practical advantaje, in 2.42; Welles i'. Castles, 3 Gray spite of its apparent unfairness to
(Mass.), 323 the tenant, and the absurdity of its Nor that a store rented as a conclusion wliell we look at the wareliouse for dry goouls shall be seal intention of the parties to the suitable for that purpose: Dutton i'. lease of a house'. So many tenants, Gerrishi, 9 Cush. (Mass.) 89. who have not inserted the fire Netv York.-The Massachusetts clause in their lease, have been rule on this question is adopted in obliged to pay rent for a burnt ruin. New York : Gillis i'. Morrison, 22 that the law on the subject is well
N. B. 207. known Uiroughout the States. Net Jirsi''.-Nrumerk Being well known, the parties put Young. 44 N. J. I.. 3.31, 345. Sec what they really intend in black remarks of DILER., J. aml white, anel in doing so, lend to of course, when a liouse is renteil lessen litigation. If every time, for generally, with no circumstances instance, that a tenant thought his which indicate that it must be usell house was uninhabitable, he coulel for a dwelling house only, there is move out and leave it to a jury to no question that the landlord does 11 whether his action was reason It warrant it suitable for any par. ble, there would be endless suits ticular purpose : Howard v. Doo. rosi the subject, and we would go little, 3 Duer (V. Y.), 464. See ver our experience in the law of remarks of DUER, J., on page 274 : negligence, where it has taken Jassez. Harteau, 56 N. Y. 398; thousands of cases to enable us to Cleves t'. Willoughby, 7 Hill (N. get any more definite statement of Y.), 83. per BARDSI.EY, J. ; Scott z'. the law than that a man should Siinons, 54 X. H. 426; Loupe v. exercise reasonable, care. It is Wood, si Cal. 586; Royce 7. Gug. sometimes questionable, and it genheim, 106 Mass. 201-202, per may be here, whether justice to be GRAY, J.; Robbins v. Mount, 4 obtained in each particular case by Robt. 553; O'Brien v'. Capwell, 59 A jury is as aclvantageous as having Barb. (N. Y.) 497; Edwards i'. definite rules of law, whicu may, N. Y. H. R. R. Co., 98 N. Y. 245until they are generally known, 247. EARLE, J., and in Minnesota work substantial injustice. Take the courts have gone so far as to the very principle that the tenant may that, where the lessor statel
in reply to the question of the lesSee, that the sewer connected with the preinises was in a goul condi. tion if he did not know the asser. tion to be false, he would not be liable to repair the drainage,
though the sewer was entirely out of ord This, however, is not law in Pennsylvania : See Wolfe v. Arrolt, 10g Pa. 473.
W'. D. L.
DEPARTMENT OF PRACTICE AND PLEADING.
W11..IAM SAXORRSOX PURST.
Daltos :: WEST list STREET RAway Coo.'
JUDICIAL. CNRT OF MASSACHUSETTS.
Compromise of Suit by Allorney. i compromise of a peuling suit by an attorney, in violation of express instructions from his client, will not bind the latter; and when the parties can be placed in statu quo, and application is seasonably made, the Court has power to vacate any judgincnt founded on such compromise, and to order it and the compromise stricken from the files. POWER OF ATTOKSEY TO BIND CLIENT BY COMPROMISK
OR SETTLEMEST. By the very fact of his employ. S. C., 3 S. W. Rep. 382. By virtue ment, an attorney-at-law acquires of this implied authority, he may complete control of the action, in waive the client's right of trial by so far as the managemeut and direc. jury by an agreeinent to refer the tion thereof, and the remedy sought, case to arbitrators: Thomas v. are concernedl; and he has an im Hews, 2 C. & M. 327; Buckland d. . plied authority to do any acts, or Conway, 16 Jass. 396; Jenkins o. take any stops, which merely relate Gillespic, 10 Sm. & M. (Miss.) 31; to the conduct of the suit, or the Holker t. Parker, 7 Cranch, 436; remedy; but he cannot take any Morris ;. Grier, 76 X. C. 410; measures, or enter into any agree Bingham z'. Guthrie, 7 Harris (Pa.). inent, which tends to affect the 418; Sargeant r'. Clark, 108 Pa. 588 right of aclion, without some ex May withdraw a juror: Swinfen v. press additional authority from the Li. Chelmsford, 3 H. & N. 890; client. Daris r'. Hall, 90 Mo. 659 : Strauss r'. Francis, 1 L. R. Q. B. 379
Reported in 34 N. P.. Rep. 261.
May restore an action after non Rep. 297. Cannot agree that the pros: Reinhold i'. Alberti, : Binn. disruissal of a suit shall operate as 469. And, when several suits a bar to the maintenance of an are brought by the same plaintiff action thercon for malicious prosegainst different defendants, the cution : Marlourg i. Smith, 11 grounds of defence being the same
C:innot bind a land. in cach case, the attorneys for the Jorel who has brought suit to evict voveral parties may bind their a tenant, by all agreement that if clients by an agreement that all the the tenant will submit to a default, cases should aliile the final decision (xccution shall not be issued for a in one case : R. K. 7. Stephens, 36 week, or if issuell, shall not lx Mo. 150.
It has also been hell that served within that time : Weilanıl the allorney may, without special i'. White, 104 Mass. 392. 11or make tuthority, lisoniss or discontimie a vadiel agreeincit iu extend the the suit : Davis i'. Hall, go Mo. 659; time of the payment of a judy. $. C., ; S. W. Rep. 3.82 ; Gaillorri ulicuit, suspended proceedings :. Smart, 6 Cow. 385 ; Simpsoti v. thereon : Beatty 7. Hamilton (Pa.), Browni, 1 Wash. Ty. 247, but this is 17. Atl. Rep. 755; Luckbart is controwertel in Tilby v. Miller, 25 Wyatt, 10 Ala. 231; l'endexter i. P'a. 264. And if allowable at all, can Vernon, 9 Hluniph. (Tenn.) 84. He only he prinitted when it is with camiot release the sureties upon a out prejudice, for an attornicy las note or claim : Stoll v. Sheldon, no power to release or abandon his 13 Nch. 207: Givens i. Briscoe, 3 client's claim to the defendant: J. J. Marslı ikv.), 529 : Sav. Iust. Smith i'. Dixon, 3 Metc. (Ky.) 438; i'. Chinn, 7 Bush. (ky.) 5.29. Nor Gilliland 7. Gaspuc, 6 S. C. 406; five an extension of time to the Hickey v. Stringer, 21 S. W. Rep. principal obligor on a note, especi. 715.
ally when, if the act were calid, its On the other hand, an attorney immediate legal consequence woulil cannot surrender any substantial In the release of thie sureties : right of his client, without the con. Roberts i'. Smith, 3 La. Aon. 203. sent of tlic latter : Dickerson i. Whether or not he has implieri Hodges (N. J.;, 10 All. Rep. 111. power to release property from the And it has even xen held in that lies of an attachment is in sonie Slate that this applies to matters doubt. It seems to be the prevail; that relate to the conduct or thic ing opinion that when the attachsuit : Howe 2. Lawrence, 22 N. J. mnent is only an inciilent or the L. 49; though, in view of the form of action, he may release it general rule as to such matters, it before julgament: Monson v. Hawis dificult to understand how this ley, 30 Comu. 51; Moulton i'. can be true, unless there is proof or Rowker, 115 Mass. 36; Levy i'. fraud or collusion on the part or Brownı, 56 Miss. 83. But hic cere the attorney:
tainly cannot relcase the lien of a Accordingly, without special judgment without express author. ภuthority, an attorney cannot ity : Dollar Sav. Bk. 7'. Robb, 4 waive his client's right to releem Brews. (Pa.) 106; Doub 7'. Barnes, the property in the action, or any i Md. Ch. 127; Phillips 1. Dobs. steps necessary thereto : Graves 2. hins, 56 Ga. 617. Even though he Long, 87 Ky. 441; S. C., 9 S. W. honestly believe that it will he for