covenant not to assign is not broken by an involun tary alienation by operation of law, or by deposit of the lease as security for money received, because this is not a parting with the lessee's interest."

§ 10. Same-Same- Covenant to deliver in good repair.-As a general thing a lease contains a covenant on the part of the lessee to deliver up the premises at the end of the term, in as good repair and condition as they are in at the date of the lease, natural wear and tear and damage by the elements excepted. Under such a covenant the lessee will not be bound to put up new buildings in the place of those which have been destroyed by fire, and the like, unless there is a special covenant to repair and rebuild. Thus it is said by the Supreme Court of Mississippi in the case of Levy v. Dyess, that a covenant to "re-deliver or restore the property in the same condition or plight," or other words of like import, does not bind the tenant to rebuild in case of casual consumption by fire; that such covenant amounts to an agreement simply to take ordinary reasonable care of the property, according to its nature, and to surrender possession at the expiration of the term."7 Such a covenant does not

in any manner not inconsistent with the terms of the lease. Crommelin v. Thiess, 31 Ala. 412; S.C., 70 Am. Dec. 499. Compare McBurney v. McIntyre, 38 Ga. 261.

44 Smith v. Putnam, 20 Mass. 221; Jackson, ex d Schuyler, v. Corliss, 7 Johns. 531; Doe, d. Mitchinson, v. Carter, 8 Durnf. & E. 57; S. C., 4 Rev. Rep. 586; Croft v. Lumley, 6 H. L. Cas. 672; S. C., 27 L. J. Q. B. 321.

45 Doe, ex d. Pitt, v. Hogg, 4 Dow. & Ry. 226; S. C., 16 Eng. C. L. 196.

46 Levy v. Dyess, 51 Miss. 501; S. C., 3 Cent. L. J. 221.

47To repair and deliver up" has been said to bind the lessee to rebuild in case of loss by fire during the term. (Nave v. Berry, 22 Ala. 382.) "To deliver up 99 simply imposes an obligation against holding over. (Nave v. Berry, 22 Ala. 382.) "To surrender in good condition" renders the tenant liable for waste, through resulting from accident, occurring without his fault. (Parrott v. Barney, 2 Abb. 197.) "To keep the premises in a good state of repair" obligates the lessee to restore buildings destroyed by fire. (David v. Ryan, 47 Iowa, 642.) "To repair obligates the lessee to rebuild in case of the destruction by fire or other casualty. (Levy v. Dyess, 51 Miss. 501; S. C., 3 Cent. L. J. 221.) To uphold and repair" imposes loss by fire or other casualty upon the tenant. (Levy v. Dyess, 51 Miss. 501; S. C., 3 Cent. L. J. 221.)

To keep up all repairs" has reference only to doing ordinary repairs, and does not bind the lessee to insure against natural wear and decay. (Polack v. Pioche, 35 Cal. 416; S. C., 95 Am. Dec. 115.

require that the premises be put and left in better repair than they were at the date of the covenant." A covenant to deliver up in good repair sometimes includes a stipulation to surrender all improvements made upon the premises by the lessee during the term; in such case every addition, alteration, annexation, or erection made by the lessee during the term, to render the premises more available, comfortable, profitable, or useful will be included.49 In covenants to repair there is generally an exception made as to 66 damages by the elements or acts of Providence;" but such exceptions extend only to damages to which human agency does not in any way contribute.50

§ 11. Same Same Covenant against waste.There is an implied covenant in every lease that the lessee shall use the premises demised in a husbandlike manner and keep the buildings and other structures in repair, and his failure to do so renders him liable to an action for waste;51 but there is no implied covenant on the part of the lessee to make other repairs upon the demised premises. If he undertakes to make repairs, however, by implied covenant he is bound to do so in a workmanlike manner.5 52 Where the lessee has entered into an unqualified covenant to repair, he will be required to do so whatever may have caused the damage;53 but where there is no such covenant and the tenant uses the premises devised in a good husband-like manner, he will not be liable to repair damages done either by the elements or by strangers without his fault. But the lessor is entitled to an injunc

48 West V. Hart, 7 J. J. Marsh. 258. It is said in the case of Thorndike v. Burrage (111 Mass. 531), that the leaving of a cart-load of ashes, brickbats and rubbish by a tenant on quitting the demised premises is not a breach of his agreement to peaceably yield up the premises in good, tenantable repair.

49 French v. Mayor, 16 How. Pr. 220.

50 Polack v. Pioche, 35 Cal. 416; S. C., 95 Am. Dec. 115.

51 Nave v. Berry, 22 Ala. 382; Thorndike v. Burrage, 111 Mass. 531, 532.

62

Estep v. Estep, 22 Ind. 114; Gill v. Middleton, 105 Mass. 477, 478; S. C., 7 Am. Rep. 548; Leavitt v. Fletcher, 92 Mass. 121; Elliott v. Aiken, 45 N. H. 30, 36; Doupe v. Genin, 45 N. Y. 119; S. C., 6 Am. Rep. 47; Post v. Vetter, 2 E. D. Smith, 148; Sheets v. Selden, 74 U. S. 423; bk. 19 (L. ed.), 166; Gott v. Gaudy, 22 Eng. L. & Eq. 173.

53 Gibson v. Eller, 13 Ind. 124, 128; Leavitt v. Fletcher, 92 Mass. 121; Phillips v. Stevens, 16 id. 228; Abby v. Billups, 35 Miss. 618; Walton v. Waterhouse, 2 Saund. 422.

54 Gibson v. Eller, 13 Ind. 124, 128; Leavitt v. Fletcher, 92 Mass. 121; Wells v. Castles, 69 id. 323;

IRISH CHIEF BARON.

action, but is principally due to bacteriological action. Where, however, a new product is obtained it is certain that a new process has been invented. The serum is a complex body, and its composition is by no means simple. The extent of the new treatment is still under discussion, but there is no doubt that there are contained in the serum some active principles which are useful for the treatment of diphtheria. It is, at the same time, certain that the serum also contains matter which is detrimental

and liable to cause trouble to the patient. Any process, therefore, which enables the good part to be retained and the injurious part to be rejected constitutes subject-matter for letters patent. Another important point of the invention lies in the concentration reducing the serum to one-tenth of its bulk. Assuming that the improved product possessed but a small part of the qualities attributed to it, there can be no doubt that letters patent would be sustained. Supposing that valid letters patent are eventually granted, there may be some curious cases of infringment. The patent grants the sole right to make, use, exercise and vend." The person, therefore, who has been cured by infringing material is liable for the consequences of infringement. This question of infringement may bring into play a section of the Patent Act, 1883, hitherto neglected. Section 22 provides for a compulsory license in the event of the patentee refusing to grant licenses on reasonable terms, and "if the reasonable demands of the public cannot be supplied." This section of the act has been very little used, but the section has by no means been a dead letter, as there are instances where foreign manufacturers have taken measures to create works in England for the purpose of controlling the manufacture in their own hands, and of obviating the necessity of granting licenses under the section. - Law Journal.

DAMAGES.

CARRIERS OF PASSENGERS Where plaintiff, a traveling salesman, received as compensation a certain salary, his railroad expenses, and a certain percentage of the amount of his sales, such percentage is not "profits" in the sense of that word as used in the decisions discussing the right to recover profits as such in actions for breach of contract; and, in an action for damages sustained from having received personal injuries, plaintiff may recover such percentage, and, in order to lay a foundation for such recovery, may show the extent and amount of his ordinary business. (Rio Grande Western Ry. Co. v. Rubenstein [Colo.], 38 Pac. Rep. 76.)

A JUDICIAL HUMOURIST.

THE Right Hon. James Whiteside, who was lord chief justice of Ireland from 1866 till 1876, in an article written in 1830, and entitled "The Irish Exchequer as it was in 1829," gives the following description of the Irish Lord Chief Baron O'Grady of that time, who was afterward created Viscount Gauillamore. A person, says Mr. Whiteside, but indifferently skilled in the art of physiognomy might from his countenance form a tolerably accurate judgment as to the temper and character of Chief Baron O'Grady. Cynicism, it may be fairly concluded, forms the most prominent feature of bis character. He seems to have laid it down as a rule, from which it would be criminal in the extreme to deviate, never to suffer the opportunity of saying a severe thing to escape, no matter how galling it may be to the feelings of the person against whom it is aimed. This cruel propensity renders him no great favorite with the junior bar, toward whom his manner is not unfrequently discouraging and repulsive. Thus, when a young barrister had resumed his seat, after having zealously labored for two hours to convince the court, Mr. Whiteside records that he heard the chief baron observe, in his customary drawling and uncourteous style, “Well, sir, all that may be very fine, but I confess I cannot understand it." In this point of view he was no respecter of persons, as the following anecdotes will sufficiently demonstrate. Mr. Crampton, an eminent King's counsel, who was afterward a judge, having in a law argument cited Palgrave's case with confidence, and relied upon it with great emphasis, the chief baron observed with his usual politeness: "Mr. Crampton, you have taken that case from some abridgment. Palgrave was neither the plaintiff nor the defendant, but the lawyer who conducted the cause, and who was remarkable for nothing but his ignorance, hence it was called Palgrave's case; and I dare say that, if ever this case should be cited hereafter as a precedent, it will be known by the appellation of Crampton's case." A scene which occurred with a different sort of person deserves to be commemorated. Sir William Stamer, a portly, consequential alderman of the venerated corporation of Dublin, a magistrate and terror of all evil-doers, when sitting as a foreman of a jury, interrupted the chief baron at a critical moment by vehemently protesting he could no longer endure the intensity of the cold, and begging permission to wear his hat. His lordship, casting an affectedly sympathizing glance on the half-frozen baronet, dryly replied, "Sir William, it is not usual for gentlemen to wear their hats in courts of justice, but if a wig would answer I am sure the members

of the bar will kindly accommodate you with a good fit." The alderman sat down confounded and abashed.

There is, says Mr. Whiteside, a class of shabby lawyers in Dublin whose practice is exclusively confined to the defense of criminals at Green street, the Irish Old Bailey. These gentlemen are sometimes clamorous and contumacious; the chief baron, however, had the happy knack of bringing them to a proper sense of their situation. One of these barristers having, on the trial of a pickpocket, been employed as counsel for the prosecution for lack of any other, assumed on this occasion an imperious air, and took special care to reiterate loudly and frequently for the information of his lordship that he was counsel for the Crown. The chief baron bore this patiently for a time, till at last, provoked by his pertinacity, when the pompous little gentleman, elated with the unwonted honor, again exclaimed he was counsel for the Crown, his lordship kindly remarked, "Yes, sir, and I believe sometimes for the half-crown, too." When presiding in the town of Mullingar, in the criminal court, two culprits were put on their trial for an atrocious burglary; a flaw being discovered in the indictment, an acquittal was directed, when counsel for the defense, proud of his display of forensic skill, confidently demanded of his lordship to discharge his injured clients from the dock. "Oh, thank you," said the sagacious chief baron, "you will allow me, if you please, to get half an hour's start of your clients out of the town."

Mr. Whiteside gives some curious instances of the brevity of Chief Baron O'Grady's charges to juries. On the trial of a criminal for stealing stockings several witnesses deposed to his good character, after which his lordship charged the jury in this concise, or rather comic, strain: "Gentlemen of the jury, here is a most respectable young man, with an excellent character, who has stolen twelve pair of stockings, and you will find accordingly." Upon the trial of an action for debt to which the defendant had pleaded as a set-off a promissory note of somewhat long standing and an old brokendown gig which he had furnished the plaintiff, the following charge was spoken with infinite gravity by the learned chief baron: "Gentlemen of the jury, this is an action for debt to which the defendant has pleaded as a set-off two things—a promissory note, which has a long time to run, and a gig, which has but a short time to run. The case seems clear. You may find for the plaintiff."- Law Times.

Rent accruing after an assignment is not a debt entitled to share in the assets of the assigned estate. (In re Wiman's Estate [Penn.], 30 Atl. Rep. 389.)

Abstracts of Recent Decisions.

CONTRACT BY WIFE-SEPARATE ESTATE. -Where a married man makes application for life insurance, and his wife, in the absence of the husband, agrees to take the policy on condition that it be made payable to her, and gives her note in payment of the first premium, her separate estate is charged with its payment. (Mitchell v. Richmond [Pa.], 30 Atl. Rep. 486.)

FRANCHISE TAX

RECEIVER.

CORPORATION Where a receiver has been appointed for an insolvent corporation, and has taken possession of its assets, and exercises its franchises, he is a necessary party to a petition by the State for an injunction to restrain the further exercise of any franchise or transaction of any business of the company by him because of non-payment of the State franchise tax. (In re George Mather's Sons Co. [N. J.], 30 Atl. Rep. 321.)

CRIMINAL LAW-BAIL-RECOGNIZANCE.—It is no defense to a recognizance that it was taken and acknowledged before the clerk of the district court, where this was done by order of the district judge, made at the request of the accused, and to secure his speedy discharge. (Hunt v. United States, U. S. C. C. of App., 63 Fed. Rep. 568.)

DECEIT DAMAGES.-Where defendant sold plaintiff a stallion by means of false representations as to his breeding abilities, plaintiff, on recovering a verdict in an action for damages, can recover the cost of keeping the stallion a reasonable time for the purpose of testing him. (Peak v. Frost [Mass. ], 38 Pac. Rep. 518.)

DEED - CONSTRUCTION.—Where land is conveyed to a trustee for the sole and separate use of a married woman, giving her full power to sell and convey the property, and it is provided that, in case she dies without disposing of the property by deed or will, the trust shall cease and determine, and the property shall revert to and vest in her husband, held that, on the death of the wife, the property being undisposed of, an equitable fee-simple title to the land vested in the husband. (Yore v. Yore [U. S. C. C., Mo.], 63 Fed. Rep. 645.)

EASEMENT DRAINAGE.--A deed to part of a tract of land, reserving to the grantor, his heirs and assigns, the right to use a certain drain across the premises, creates an easement of drainage over the land conveyed. (Jones v. Adams [Mass.], 38 N. E. Rep. 437.)

EQUITY-JURISDICTION.— Equity will not take jurisdiction of an action to recover a simple debt on the ground that a pretended payment thereof was fraudulent. (Cary & Moen Co. v. Moen [Mass. ], 38 N. E. Rep. 505.)