Page:Harvard Law Review Volume 12.djvu/591

571 RECENT CASES. 5/1 may be regarded as performing a function similar to execution in the case of a will, and a relaxation in the rules requiring this solemnity is a departure from the safe- guards which the law has placed around all acts of a testamentary nature. Property — Loss of Lien. — Held, that one who has a lien upon live stock for its keep does not lose his lien by levying an attachment upon the stock. Lambert V. Nicklass, 31 S. E. Rep. 951 (W. Va.). There is singularly little authority upon the question here decided. Of the three cases which are directly in point, .tiv), Jacobs v. Latour, 5 Hiug. 130, and Les^^ v. iVil- lard, 17 Pick. 140, are in agreement with, and the other, Arrenda/e v. Morgan, 5 Sneed, 703, is contrary to the principal case. It seems that sound reasoning requires a dif- ferent conclusion than is here reached. That posses-sion. is a necessary element to the existence of a lien is fundamental. Forth v. Simpson, 13 Q. H. 680. Hut the lien-holder gives up possession of the goods when he permits them to be taken on attachment, and the possession of the sheriff is equally distinct from the previous possession of the lien-holder, whether the attachment is made at his or at a third party's suit. In the former case, as in the latter, the sheriff is not the agent of the attaching creditor, but is acting as the representative of the law, nor is anything gained by saying that the view taken as to the necessity of the lien-holder continuing in possession is technical, since it is based upon the fundamental conception of the nature of a lien. QUASI-CONTRACTS — LeASE — ASSIGNMENT — LIABILITY OF SuB-LeSSEE OF AS- SIGNEE. — An assignee of a term made a sub-lease to defendant, who covenanted to pay out of the rents and profits the rent accruing to the superior landlord. The original lessee, having been compelled to pay to the lessor rent which accrued while defendant was in possession, brought this action against the latter to recover the amount thus paid. Held, that the action cannot be maintained. Bonner y. Tottenham, <Sr»<:. Society, [1899] I Q. H. D. 161. If the defendant had been an assignee of the term instead of a sub-lessee, plaintiff ■would have recovered. Aloule v. Garrett, L. R. 7 Ex. loi. There, however, the lessor would have had a direct remedy against defendant on the covenant which would have run with the land. Both plaintiff and defendant being bound to the lessor, the former would be regarded as a surety for defendant, and entitled to a surety's remedies against him. The actual case is different, in that there was no privity of contract or estate between the original lessor and defendant; so that in England defendant incurred no liability at law to the former. Defendant's contract was made with his own lessee to discharge the latter's obligation to the superior landlord. In many of the United States, the beneficiary in such a case would be allowed to sue at law. Where that rule prevails the present case would seem to fall within the principle of Moule v. Garrett, supra. According to the best American authorities, however, the landlord is not per- mitted to proceed at law, but he is entitled, in equity, to the benefit of defendant's promise, and may enforce specific performance thereof. Keller v. Ashford, 133 U. S. 610. To the lessor's right in this regard the plaintiff, on paying the rent, would be subrogated. That very equitable and just doctrine has never been squarely adopted in England, and the principal case is especially interesting because of a dictum that some such remedy may exist. Torts — Gratuitous Bailment — Duty of Care. — The defendant lent. his steam engine gratuitously to the plaintiff, without knowledge of any defect in it. The boiler of the engine burst and plaintiff was injured. Held, defendant is not liable for negligence in not finding out the defect, and informing the plaintiff of it. Coughlin v. Gillison, [1899] t Q. B. D. 145. The case follows the English authorities. Blackmore v. Bristol Railway,?) E. & B. 1035; MacCarthy v. Young, 6 H. & N. 329. The line seems to be sharply drawn, that in the case of gratuitous lending, the bailor is not liable unless he has knowledge of the defect, while if the bailment is for hire, the bailor must use due care to find hidden defects. Hymart v. Nye, 6 Q. B. Div. 685; Fo%vler v. Locke, 7 C. P. 272. The law in this country, as regards bailments for hire, seems to agree with the English doctrine. Homes. Meakin, 115 Mass. 326; Hadlcy v. Cross, 34 Vt. 586; IVindle . Jordan, 75 Me. 149. It is very probable that the principal case would be followed also, but there is very little authority on the point. See Schouler, Bailments, 3d ed., § 79; 5 Harv. Law Rev. 222. Torts — Negligence — Law and Fact. — Held, that where the evidence is not contradictory, proximate cause is a question of law to be determined by the court and not a question of fact to be submitted to the jury. Schwartz v. Shall, 31 S. E. Rep. 914 (W. Va.). It is often difficult to determine whether the application of a given rule of law to the facts is for the court or for the jury. If the rule of law is clearly defined and the appli- 74