Page:The Green Bag (1889–1914), Volume 07.pdf/170

 * Rh particular clause was a bargain fairly made and deliberately entered into by the plaintiff, with full knowledge of its purpose, scope and effect, and therefore the plaintiff should be held to abide by it. But it is not correct to say that even with respect to this clause, the parties dealt with each other at arm's length. The defendant, when sugges ting it, had the advantage of his secret knowledge that its statements were false, while the plaintiff, on the other hand, relying upon the truth of the representations made as to the extent and character of the business, was not upon his guard, but assuming that the defendant has told him the truth, was readily induced to sign a statement, which, upon such assumption was obviously of no consequence. In fact, it was but a link in the chain, and the crowning act which was to secure to the defendant the full fruits of the fraud, and thus enable him not only to overreach the plaintiff, but the law itself." This seems good morals, and it ought to be good law. It certainly seems against public policy to allow parties to bargain for immunity for fraud. It resembles the case of a man selling goods expressly for and to assist actively in an illegal business, and the buyer agreeing not to raise that defense in an action for the price of the goods.

H5

In an extensive and valuable note in 24 L. R. A. 629, it is said : " Counsels fees have been looked upon and considered in the light of necessaries, for which the husband would be liable, as upon an im plied contract, in Massachusetts, New Hampshire, while the contrary has been held in Alabama, Con necticut, Illinois, Iowa, and West Virginia." We find that the husband's liability has been denied in Shelton Pendleton. 18 Conn. 417; Clarke v. Burke, 65 Wis. 359 : 56 Am. Rep. 631; Pearson v. Darrington, 32 Ala. 227; Ray v. Adden, 50 N. H. 82; Morrison v. Holt, 42 N. H. 478; 80 Am. Dec. 120; Coffin v. Dunham, 8 Cush. 404; Dow?/. Eyster, 79 Ill. 254; Peck v. Marling, 22 W. Va. 708; Wing v. Hurlburt, 15 Vt. 614: 40 Am. Dec. 695; Wil liams 7'. Monroe, 18 B. Monr. 514; Johnson v. Williams, 3. G. Greene, 97; 54 Am. Dec. 491 (Iowa); while the husband's liability has been as serted in Porter v. Briggs, 38 Iowa, 166; 18 Am. Rep. 27; overruling Johnson v. Williams, supra; Musick v. Dodson, 76 Mo. 624; 43 Am. Rep. 780; Sprayberry v. Merke, 30 Georgia, 81; 76 Am. Dec. 637; Cook?/. Walton, 38 Ind. 228; Langbein v. Schneider, 27 Abb. N. C. 228. The case of Conant v. Burnham, 133 Mass. 503; 43 Am. Rep. 532, Husband's Liability for Counsel* ees of Wife in Divorce Suit.— An interesting question of the is not at all in point, although cited by courts and liability of the husband, at common law, for counsel text writers, for it related to the husband's liability fees of his wife in her action for divorce, is recently for counsel fees in defence o/ his wife on a complaint decided in Wolcott v. Patterson, Michigan Supreme against her for being a common drunkard. It ap Court, 24 Lawyers' Rep. Ann. 629. The court holds pears to us that the true reason of the matter is ex that the husband is not liable, and consequently that pressed in Morrison v. Holt, supra, as follows : the wife may make herself liable. This is put on " The wife's authority, where it exists, arises from the ground that the statute " clearly indicates that the relation, if not as an incident essential to its pre such proceedings are to be maintained at the cost of servation, certainly as a consequence of its continued the wife, unless the court shall relieve her of such existence, and not as a power reserved for its de cost by an order for expense money to be paid by struction." the husband." The court, however, observe that aside from the statute " the authorities are not uni The Yf.w-Tree Doctrine. — Several years ago form upon the question, but we think the weight of authority negatives such liability. In some of the we metrically reported in this magazine the celebrated states the liability of the husband is asserted. Spray- case of Crowhurst v. Amersham Burial Board, 4 Ex. Div. 5, in which it was held that if A. maintained on berry v. Merk, 30 Ga. 81, 76 Am. Dec. 637; Por ter <'. Briggs, 38 Iowa, 166, 18 Am. Rep. 27; his land a yew tree, whose branches projected over Langbein v. Schneider, 27 Abb. N. C. 228; and in the boundary between his land and that of another these jurisdictions it is held that the wife is not com person, and that person's horse, on his land, cropped petent to charge herself with such expenses. Musick the projecting branches, which are poisonous to v. Dodson, 76 Mo. 624, 43 Am. Rep. 780; Cook horses, and died in consequence, the horse's owner v. Walton, 38 Ind. 228; Whipple v. Giles, 55 N. could recover against the owner of the tree. Now H. 139. See however a dissenting opinion of Pettit, that decision has been recently distinguished in Ch. J., in Putnam v. Tennyson, 50 Ind. 461. We Ponting v. Noakes (1894), 2 Q.B. 281, an action think the cases which deny the husband's liability brought to recover damages for the death of a horse, are more consonant with the holdings of this court, caused by eating the leaves of a yew tree growing on that one who supplies the wife with goods apparently the defendants' land. The tree grew near the suitable to her situation in life does so at his peril, boundary of the defendants' land, which was separ and can only recover if the husband has failed to ated from the plaintiffs by a fence and a ditch be supply necessaries. Clark v. Cox, 32 Mich. 204."' longing to the defendants, the plaintiffs boundary