Page:Harvard Law Review Volume 2.djvu/118

 lOO HARVARD LAW REVIEW.

Interest — Liquidated Account — Statement Rendered. — Where an account is not payable by contract at any particular time, the rendering of an account, without objection being made in a reasonable time, is equivalent to a demand of payment, and renders it an account stated. Interest is allowable as a matter of law from the time it thus becomes a liquidated claim. Henderson Cotton M'fg Co. V. Lowell Machine Shops, 7 S. W. Rep. 142 (Ky.).

Landlord and Tenant — Defecpive Premises — Liability to Third Person. — Plaintiff, while walking on the sidewalk in front of premises owned by defendants, but which were at the time leased to other parties, without any cov- enants by defendants to keep same in repair, was injured by stepping into a coal- hole, the cover of which was insufficiently secured. Held, that, in the alienee of proof that the defect complained of existed at the time the premises were leased, plaintiff could not recover. Johnson v. McMillan, 36 N. W. Rep. 803 (Mich.).

Larceny — Notes op Testimony. — Phonographic notes of testimony taken at a trial, are personal propertv, subject to larceny. They do not come within the exception of title-deeds ancl choses in action. Territory v. McGrath, 17 Pac R. 116 (Utah).

Lease — Breach op Covenant to Insure — Relief in Equity. — A lessee agreed to insure in a certain form, but accidentally the insurance was taken in a different form. He was willing to correct the mistake. Held, to be a case where equity will relieve from forfeiture for breach of condition. The English rule that equity will not srant relief from forfeitures for breach of condition to insure, does not apply to those cases where the failure is due to accident or mistake. Mactier v. Osborne, i j N. E. Rep. 64 (Mass.).

The court even show a disposition to treat the covenant to insure like a cove- nant to pay rent, where equity will relieve although the breach was wilful, if the lessor can be put in the same position as if the breach had not occurred. It may be doubted if tnat is strictly possible in the case of a covenant to insure.

Mandamus — Governor — Ministerial Duties. — Proceedings in mandamus to compel the Governor to declare the county seat of Grant County, as provided by statute. Held (i), in all purely ministerial itiatters, the executive officers of the State are controlled by the judidary; (2), the judiciary decides what acts and duties are ministerial, and what ones are discretionary with the Governor. Semble, the courts have the right to issue a subpoena against the Governor. Martin v. Ingham, 17 Pac. R. 162 (Kan.).

Marriage — Living Apart — Liability op Husband for Necessaries op Wife. — Where a husband has turned his wife out of doors on account of adultery committed by his connivance, he is liable for necessaries subsequently supplied to her. Wilson v. Glossop, 20 Q. B. D. 354 ; s. c 37 Alb. L. Jour. 273 (Eng.).

Negligence — Injury by Servant op Contractor to Servant of An- other Contractor under same Employer. — Two contractors, A and B, were employed on the same piece of work, B's part of the work being dangerous to A*s servants near by. One of A's servants working in the place appointed by A was injured by the negligence of the servants of B. Held, that he could recover from B. The maxim *• Volenti non fit injuria " does not apply. Thrussell v. Handyside, 20 Q. B. D. ; s. c. 27 Alb. L. Jour. 274 (Eng.).

The rule stated in Heaven v. Pender, 11 Q. B. D., at 509, applies to this case.

Nuisance — Church-Bells. — The plaintiff, by reason of a sunstroke, was in such a condition as to be thrown into convulsions by the ringing of a church-bell opposite his house. The pastor of the church, although requested not to do so, ordered the bell to be rung, much to the plaintiffs injury. There was no claim of express malice; but the pastor testified that he probably would not have stopped the bell even if he knew that the noise would kill the plaintiff. Held, that there was no ground of action against the pastor, on the familiar principle that one can- not complain of another's use of his own property without malice in a way not calculated to annoy persons in an ordinary condition. Rogers v. Elliott, 15 N. E. Rep. 768 (Mass.).

Quare, whether malice would have rendered the pastor's conduct actionable ?

Principal and Surety — Release of Principal — Effect on Indemni- fied Surety. — C for whom defendant had become surety on a note in favor