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baloon is the only method by which he can reach his peculiar portion of the atmosphere, and this all because Lord MANSFIELD refused to look at the lease as a contract for the use of a particular thing, which it really was, and insisted upon regarding it as creating a temporary estate or interest in a portion of the surface of the earth.

In justice to our courts, however, it is fair to say that with us where the leased premises consist of a room in the building, and the building is entirely destroyed by fire or otherwise, the tenant is discharged from his obligation to pay rent: Stockwell. Hunter, 11 Met. (Mass.) 448; Graves v. Berdan, 26 N. Y. 498; Pollock on Contracts, 363 et scq.

Other English cases following Arden . Pullen are Gott . Gandy, 2 E. & R 845; Keates v. Earl Cadogan, to C. B. 591.

The English Courts, which seem to be abandoning the position of Lord MANSFIELD in 1825 and 1830, return to it again in 1839 and 1840. In 1843, however, the same Lord ABBINGER, who had decided the case of Arden r. Pullen in 1842, entirely abandoned his position in his decision in the celebrated case of Smith . Marrable, 11 M. & W. 5. (But see Hart v. Windsor, 12 M. & W. 68,. This case, on which the peculiar English law on this subject is largely based, was ant action for rent brought to recover a balance of five weeks rent of a furnished house at Brighton, which had been rented by the defendant of plaintiff under the following conditions: "Mr. John Smith, of 24 St. James Street, agrees to let, and Sir Thomas MarraBLE agrees to take, the house No. 5 Brunswick

Place, at the rent of eight guineas per week, for five or six weeks, at the option of the said Thomas MARRABLE." Under this agreement, the defendant and his family entered into possession of the house. On the following day, Lady MarRABLE complained to the plaintiff that the house was infested with bugs, and he sent a person in to take means for getting rid of them. This means, however, did not prove successful, and at the end of the first week Lady MARRABLE removed from the premises and returned the key to the plaintiff. There was no stipulation in the contract that the house should be habitable. The fact that it was a furnished house was evidence that it was to be used as a dwelling house. Baron PARKE cites, with approval, the cases of Edward v. Etherington and Collins v. Barrow, while Lord ABBINGER, who had distinctly overruled those cases in Ardon . Pullen, asserts here that he is "glad that authorities have been found to support the view which I took at the trial," and even adds that, for his own part, no authorities are wanted, as its com mon sense alone enables him to decide. The inconsistency of these two opinions was such that it soon became necessary for the learned judge to attempt to draw some distinction between them. This he did in the case of Sutton v. Temple, 12 M. & W. 52 (1843). In this case the rent of a meadow was in question. The plaintiff refused to pay the rent, because the meadow turned out to be unfit for the pasturage of cattle. It is not clear, from the report of the case, whether the tenant could have used the premises in any other way than as a pasturage. In his decision, in

Div.) 336 (1877), would seem to indicate that there would ultimately be embodied in the English law of the obligations of the tenant under a lease to pay rent the principles of the civil law. This last case, as the case of Smith v. Marrable, was the rent of a furnished house. When the tenant moved in she found that the drains were in such a condition that the house was not reasonably fit for habitation. KELLY, C. B., said, in his opinion, permitting the defence, "we have allowed me argument to be addressed to us by counsel for the defendant, not because we entertained any real doubt upon the question raised in this case, but because of the general importance of the points involved, and because of the comments which had been made at various times on the law as laid down in the case of Smith . Marrable." The attitude of the learned judge is totally different from that taken by Lord MANSFIELD in 1811. To his mind the contract is for a house, and not, as with Lord MANSFIELD for a piece of land which may happen to have a house on it. All through the opinion, we see the question of what the parties to the lease inten; ded rather than how should decide the case as a technical question of real property. The only case cited, as a case in point, is that of Tully. Howling, 2 Q. B. D. 182, which was a case of admiralty law on an agreement to charter a ship. The other judges who decided the case advance at the question from the same standpoint. That this standpoint reaches results which are entirely irreconcilable with the American law and the position of Lord Mansfield in Baker v. Holtpzaffell will soon


favor of the plaintiff, Lord ABBINGER says: "If this case involved the necessity of overruling the case of Smith. Marrable, I should hesitate long before I should acquiesce in so doing so, for I entirely approve of the decision which we came to in that case." He then sets out the ground of distinction. The first case is the letting of a house and furniture Being for both house and furniture, it must be meant for Occupation. The furniture must he fit for use, i. e., so must the house. But he assumes that the tenant in the case before him could only use the land as a pasturage. He admits that the land could not be used for pasturage, but it is not the landlord's fault, he has no knowledge that his field is in a bad condition and will poison cattle which are put upon it. Therefore, he cannot be held responsible. For our own part, we cannot follow this logic. It seems to us that there is no evidence that the plaintiff in Smith . Marrable knew that his premises were infested with bugs or that they were so infested from any fault of his. Why then should that case rest on a different principle than that of Sutton v. Temple? Where is the real distinction?

Following the trend of the decis ion in Sutton v. Temple. BACON, B. C., in Powell . Chester, 52 L. T. Rep. 722, said that the principle of the decision in Smith v. Marrable should be confined to where a person rents a house for a month or two at the seashore. In that limitation, however, there is no reason..

We believe that the English courts will sooner or later overrule one case or the other and adopt a consistent principle. The case of Wilson v. Hatton, 2 L. R. (Ex

become apparent to the English Bench. To hold a man liable to pay rent if the house burns down, but to discharge him from the obligation if it happens to be infested with bugs, is absurd. The American law which holds a tenant liable under all circumstances, except where there has been fraud or misrepresentation on the part of the landlord, has at least the advantage of being perfectly clear and logically consistent. The position of the American courts has also this practical advantage, in spite of its apparent unfairness to the tenant, and the absurdity of its conclusion when we look at the real intention of the parties to the lease of a house. So many tenants, who have not inserted the fire clause in their lease, have been obliged to pay rent for a burnt ruin, that the law on the subject is well known throughout the States. Being well known, the parties put what they really intend in black and white, and in doing so, tend to lessen litigation. If every time, for instance, that a tenant thought his house was uninhabitable, he could move out and leave it to a jury to say whether his action was reasonble, there would be endless suits n the subject, and we would go over our experience in the law of negligence, where it has taken thousands of cases to enable us to get any more definite statement of the law than that a man should exercise reasonable, care. It is sometimes questionable, and it may be here, whether justice to he obtained in each particular case by a jury is as advantageous as having definite rules of law, which may, until they are generally known, work substantial injustice. Take the very principle that the tenant

has to pay for his premises burnt or not, can any attorney point to a lease which has come under his notice which does not provide for the contingency of the premises being destroyed by an act of God.

The following are the principal American cases on the subject:

Massachusetts.-Here there is no implied warranty in the rent of a dwelling house that the house shall be habitable during the terms: Bowne 7. Hunking, 135 Mass. 380; Foster . Peyser, 9 Cush. (Mass.) 242; Welles . Castles, 3 Gray (Mass.), 323.

Nor that a store rented as a warehouse for dry goods shall be suitable for that purpose: Dutton v. Gerrish, 9 Cush. (Mass.) 89.

New York.-The Massachusetts rule on this question is adopted in New York: Gillis . Morrison, 22 N. B. 207.

New Jersey.-Naumberg Young, 44 N. J. L. 331. 345. remarks of DEPUE, J.

Of course, when a house is rented generally, with no circumstances which indicate that it must be used for a dwelling house only, there is no question that the landlord does not warrant it suitable for any par ticular purpose: Howard v. Doo. little, 3 Duer (N. Y.), 464. See remarks of DUER, J., on page 274: Jaffe . Harteau, 56 N. Y. 398; Cleves . Willoughby, 7 Hill (N. Y.), 83, per BARDSLEY, J.; Scott v. Simons, 54 N. H. 426; Loupe v. Wood, 51 Cal. 586; Royce 2. Guggenheim, 106 Mass. 201-202, per GRAY, J.; Robbins v. Mount, 4 Robt. 553; O'Brien v. Capwell, 59 Barb. (N. Y.) 497; Edwards '. N. Y. H. R. R. Co., 98 N. Y. 245247. EARLE, J., and in Minnesota the courts have gone so far as to say that, where the lessor stated

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By the very fact of his employment, an attorney-at-law acquires Complete control of the action, in so far as the managemeut and direction thereof, and the remedy sought, are concerned; and he has an implied authority to do any acts, or take any steps, which merely relate to the conduct of the suit, or the remedy; but he cannot take any measures, or enter into any agreement, which tends to affect the right of action, without some express additional authority from the client. Davis t. Hall, 90 Mo. 659:

Reported in 34 N. F. Rep. 261.


Compromise of Suit by Attorney.

A compromise of a pending 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 judgment founded on such compromise, and to order it and the compromise stricken from the files.


S. C., 3 S. W. Rep. 382. By virtue of this implied authority, he may waive the client's right of trial by jury by an agreement to refer the case to arbitrators: Thomas V. Hews, 2 C. & M. 327; Buckland v. . Conway, 16 Mass. 396; Jenkins v. Gillespie, 10 Sm. & M. (Miss.) 31; Holker . Parker, 7 Cranch, 436; Morris Grier, 76 N. C. 410; Bingham . Guthrie, 7 Harris (Pa.), 418; Sargeant r'. Clark, 108 Pa. 588. May withdraw a juror: Swinfen v. Ld. Chelmsford, 5 H. & N. 890; Strauss t. Francis, 1 L. R. Q. B. 379

May restore an action after non pros: Reinhold v. Alberti, 1 Binn. 469. And, when several suits are brought by the same plaintiff against different defendants, the grounds of defence being the same in each case, the attorneys for the several parties may bind their clients by an agreement that all the cases should abide the final decision in one case R. R. 7. Stephens, 36 Mo. 150. It has also been held that the attorney may, without special authority, dismiss or discontinue the suit: Davis . Hall, 90 Mo. 659; S. C., 3 S. W. Rep. 382; Gaillord

. Smart, 6 Cow. 385; Simpson 2. Brown, t Wash. Ty. 247, but this is controverted in Filby v. Miller, 25 Pa. 264. And if allowable at all, can only be permitted when it is without prejudice, for an attorney has no power to release or abandon his client's claim to the defendant: Smith. Dixon, 3 Metc. (Ky.) 438; Gilliland . Gasque, 6 S. C. 406; Hickey v. Stringer, 21 S. W. Rep. 716.

On the other hand, an attorney cannot surrender any substantial right of his client, without the consent of the latter: Dickerson 7. Hodges (N. J.), 10 Atl. Rep. 111. And it has even been held in that State that this applies to matters that relate to the conduct of the suit Howe . Lawrence, 22 N. J. L. 99; though, in view of the general rule as to such matters, it is difficult to understand how this can be true, unless there is proof of fraud or collusion on the part of the attorney.

Accordingly, without special authority, an attorney cannot waive his client's right to redeem the property in the action, or any steps necessary thereto: Graves Long, 87 Ky. 441; S. C., 9 S. W.

Rep. 297. Cannot agree that the dismissal of a suit shall operate as a bar to the maintenance of an action thereon for malicious prosecution: Marbourg. Smith, 11 Kan. 554. Cannot bind a landlord who has brought suit to evict a tenant, by an agreement that if the tenant will submit to a default, execution shall not be issued for a week, or if issued, shall not be served within that time: Weiland 2. White, 109 Mass. 392. nor make a valid agreement to extend the time of the payment of a judg ment, or suspend proceedings thereon: Beatty z. Hamilton (Pa.), 17 Atl. Rep. 755 Lockhart Wyatt, 10 Ala. 231; Pendexter . Vernon, 9 Humph. (Tenn.) 84. He cannot release the sureties upon a note or claim: Stoll v. Sheldon, 13 Neb. 207; Givens . Briscoe, 3 J. J. Marsh (Ky.), 529; Sav. Inst. 2. Chinn, 7 Bush. (Ky.) 539. Nor give an extension of time to the principal obligor on a note, especially when, if the act were valid, its immediate legal consequence would be the release of the sureties: Roberts . Smith, 3 La. Aan. 205. Whether or not he has implied power to release property from the lien of an attachment is in some doubt. It seems to be the prevail: ing opinion that when the attachment is only an incident of the form of action, he may release it before judgment: Monson v. Hawley, 30 Conn. 51: Moulton Bowker, 115 Mass. 36; Levy v. Brown, 56 Miss. 83. But he cer tainly cannot release the lien of a judgment without express authority Dollar Sav. Bk. v. Robb, 4 Brews. (Pa.) 106; Doub r. Barnes, 1 Md. Ch. 127; Phillips . Dobbins, 56 Ga. 617. Even though he honestly believe that it will be for

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