Page:Harvard Law Review Volume 10.djvu/410

384 384 HARVARD LAW REVIEW. the question whether the subsequent one has in fact been avoided. This opinion is clearly insupportable, for it makes the validity of an agreement between two parties turn on the arbitrary acts of a third party, which were not provided for in the agree- ment. The opinion in the principal case is well reasoned. Insurance — Subrogation. — A lessor agreed with a sub-tenant to layout any money received from his (the lessor's) insurance on repairing, and the sub-tenant cove- nanted with his lessor to leave in repair. The sub-tenant then took out insurance with the plaintiff company in his own name, and on the destruction of the property re- covered tlie amount of insurance from the plaintiff. Held, that the plaintiff might recover the amount which it had paid, the defendant having, for his own reas(5n, released his lessor from the covenant to make good such damage, and thereby having deprived the plaintiff of its right of subrogation. West of England Ins. Co. v. Isaacs. [1896] 2 Q. B. 377. A policy of fire insurance is a contract of indemnity, and the insurer on making good the loss is entitled to stand in the shoes of the insured. Darrell v. Tibbetts, 5 Q. B. D. 560. Moreover the insurer is entitled to any rights which have accrued to the assured, whether fulfilled or unfulfilled. Castellain v. Preston, 11 Q. B. I). 380. The release of the lessor, since there was no question of fraud on his part, was a valid one ; but as the defendant had no right to release him, Monmouth Ins. Co. v. Hutchinson, 21 N. J. Eq. 107, it seems only reasonable that the assured should be liable to the insurer for the benefit, to which they had a right to be subrogated, and which was lost to the insurer by the act of the assured. Persons — Sale of Opium to Wife. — /('■^/flT, that a husband may recover dam- ages from a druggist who, against the husband's orders, has sold laudanum to his wife, in consequence of which she has become a confirmed subject of the opium habit, result- ing in the loss of her services and companionship. 25 S. E. Rep. 972 (N. C ). In North Carolina a husband is entitled to his wife's earnings, so that the plaintiff has suffered a more tangible injury than mere loss of companionship. The court takes the ground that the defendant is liable because he has wilfully assisted the wife in doing an act which has deprived her husband of her services and companionship. To be sure it was in the course of business and with the purpose of gain, but that hardly justifies the voluntary infringement of the husband's rights. Hoard . Peck, 56 Barb. 202, is in accord with the principal case. It would be interesting to see whether the same view would be taken to-day in jurisdictions where by statute a married woman is practically independent. In such States it seems that the same rule should apply to actions by the wife for loss of her husband's companionship under like circumstances. Property — Adverse Possession — Infancy of Tenant in Common. — In an action for the recovery of land, by tenants in common, held that the minority of one tenant in common will protect the entire property held in common from the operation of the Statute of Limitations in favor of an adverse claimant in possession. Garret v. Weinberg, 26 S. E. Rep. 3 (S. C). There seems to be no reason why the minority of one tenant in common should pre- vent the Statute from running against the adult tenants. The defendant has had ad- verse possession for the statutory period. But the infant tenants, having been under a disability during that time, are protected. The adults, however, have labored under no disability, and against their claims the defendant should be allowed to plead the Statute of Limitations. The contrary doctrine, as held in South Carolina is the result of early decisions in that State, ajdopted with reluctance in later cases. Hill v. Saunders, 4 Rich. 521. Property — Construction of Will — Election. — In an action to which plaintiff was not a party, it was decided that on the death of one of testator's married daughters without children her share should go to her sisters. Plaintiff through his wife received a share under such division. On her death, he now claims that the will should be construed to give her property to her heirs generally, including him. Held, that, having acquiesced in the above distribution of a similar interest, he could not now contend for a contrary interpretation of the will. In re Lart, [1896] 2 Ch. 788. The point decided is a novel one. The only cases cited by counsel, holding that where one stands by while a will in which he is interested is being interpreted he is bound by the result, were distinguished by the court on the ground that the exact claim now presented had not been decided in the previous judgment. The gift to the first daughter, though similar, was not identical with the one in question. The result reached, however, is clearly correct, resting on the broad and ancient doctrine that a man taking a benefit under an instrument may not maintain inconsistent positions. See 4 Com. Dig. 76. It has frequently been held that one who accepts a benefit under