Page:Harvard Law Review Volume 4.djvu/258

242 242 HARVARD LAW REVIEW, from a defective highway, it appeared that the plaintiff, after having so far re- covered from h s injuries ( a Ijroken leg ) as to be able to be about on crutches, had his leg broken a second time by an accident to a carriage in which he was riding. The court instructed the jury that if there was no negligence on the part of the plaintiff contributing to the second accident, and if the injury would not have occurred except for the weakened and impaired condition of his leg re- sulting from the previous accident, in contemplation of law the second breaking would be a direct consequence and result of the previous accident, for which the plaintiff could recover damages. Held, that the instructions were correct. Weitin^ v. Millston, 46 N. W. Rep. 879 ( Wis. ). Property — Apportionment — Income. — The X. Company divided a por- tion of a reserve fund created by setting aside from time to time a portion of the current profits. lieU^ that, as between tenant for life and remainder-man under a settlement, this must be considered income, although a portion of the fund came from profits earned and set aside in the testator's lifetime. /// re Ahbury, 45 Ch. D. 237 ( Eng. ). This case follows Bouch v. Sproule, 12 App. Cas. 385, which, in deciding that a given payment was capital, laid down the principle that a reserve fund like this was either capital or income, as the company chose to treat it. Previous to this case the authorities were conflicting, and there was an impression that such a fund was capital. Quasi Contracts — Support of Paupkr. — The plaintiff furnished a pauper with necessaries which the defendant was legally bound to provide. The defendant had already been notified by the plaintiff of the destitute state of the pauper. Held, that the plaintiff could recover from the defendant on the ground of an implied promise to pay for the necessaries supplied. Eckman v. Township of Brady, 45 N. W. Rep. 502 ( Mich. ). Real Property — Covenants Running with the Land. — The owner of land covenanted to give the covenantee one-eighth of the lead ore mined by him on his land. Held, that the parties were tenants in common of all the ore in the land, and that the covenant was binding upon the devisee of the covenantor. Crawford v. Witherbee^ 46 N. W. Rep. 545 (Wis,). The conclusion reached in this case, that the burden of the covenant would run, was right ; but it would seem that the reasoning of the court was erroneous. If it were true that the parties became tenants in common, the covenant would not run. But if upon a true construction of the deed the covenantee simply obtained a right of profit in the land, the decision would be correct ; for, according to the American authorities, a covenant in aid of a profit will bind the assignee of the covenantor. See Morse V. Aldrich, 19 Pick. 449. Real Property — Estoppel. — An heir-apparent conveyed the land of her ancestor by a warranty deed, and died in the lifetime of her ancestor, leaving children. Held, that on the death of the ancestor the land would go to the children, and would not pass to the grantee by estoppel. The children take the land as heir of the ancestor, and not of the grantor. Habig v. Dodge, 25 N. E. Rep. 182 (Ind.). Real Property — Possession of Tenant — Notice to Vendee. — The possession of land by a tenant is sufficient notice of the landlord's title under an unrecorded deed to put a purchaser on inquiry. Levy v. Holberg, 7 So. Rep. 431 ( Miss. ). Replevin — Depreciation Pending Appeal. — The plaintiff brought re- plevin for bonds which the defendant, by giving security, retained in his posses- sion during the trial. The plaintiff got judgment for the bonds and, under a provision of the code, for the depreciation up to the date of the judgment. The defendant appealed and the judgment was affirmed. This action was brought to recover the loss due to depreciation between the date of the judgment and the final affirmance. Held, the action would not lie. Corn Exchange Bank v. Blye, 25 N. E. Rep. 208 ( N. Y. ). Salf.s — Warranty. — Vendor of a horse gave a written warranty that the horse was registered in the Stud Book of England. Held, in an action for the failure of this warranty, that the seller could not show, by parol evidence, that prior to the sale he had informed the purchaser that the horse w as not registered. Watson V. Roode, 46 N, W, Rep. 491 ( Neb. ).