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was by a motion for its resettlement, and notice on plaintiff's attorney; that the orignot for an order requiring the referee to inal undertaking was duly filed in the act in violation of the terms of the former sheriff's office. But this is not a misrepreorder. sentation to this Court, nor does the affi davit allege that no such original was filed, but only that somebody said so. That party may have made the misrepresentations and

Order affirmed without prejudice to a motion for a resettlement of the order of the General Term.

Opinion by Daniels, J.; Davis, P. J., not the defendants' attorney. I cannot see concurring.

PRACTICE. IMPROVIDENT ORDER. MARINE COURT-CITY OF NEW YORK. A. Schlumpf v. Henry Downes, Jose Vilar et al.

Decided January 27, 1876. An order made upon unfounded allegations of fact, which, had they been true, would have sustained it, is not improvidently granted.

This was an action in which an attach

ment was issued against property of defendants, in which J. & P. Vilar appeared by attorney, and on December 23, 1875, caused to be served on Sheriff an undertaking on part of said defendants to vacate and set aside said attachment, and on same day served copy on plaintiff's attorney. Plaintiff's attorney did not except to sufficiency of the sureties within three days. These facts appearing by affidavit of one of defendants' attorneys, the Court did, by a ex parte order, on December 28, 1875,

vacate and set aside said attachment as to

property of J. & P. Vilar. Plaintiff's attor. ney then obtained an order to show cause why said order of December 28, 1875 should not be set aside as improvidently made, for that the same was obtained by misrepresentations.

T. Darlington, for plaintiff.

Brown & Robe, for defendants Vilars. Held, The order to show cause does not specify in what respect the order dated December 28, 1875, was improvidently made, nor by what alleged misrepresentations it was obtained; neither does the affidavit on which the order to show cause was obtained set out any such misrepresentations. It sets out that defendant served

wherein the order of Judge Spaulding was improvidently made. If it was made upon unfounded allegations of fact, which, had they been true, would have sustained it, it was not improvidently granted. The plaintiff has mistaken his remedy. If he had served notice of exception he holds the sheriff liable. If his proof of having given such notice is missing, his application should be to supply that. If the original undertaking is necessary, his application should be to supply that loss. In either case I do not see any reason to disturb the

order of December 28. If he claims that no original bond was ever filed, he must allege and prove that. He has very clearly

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N. Y. COURT OF APPEALS. Campbell et al. respts. vs. Seaman applt. Decided January, 18, 1876. Burning brick with anthracite coal for fuel is a nuisance.

A refusal to grant an injunction is appealable.

A judgment claimed to be broader and

more unlimited than the report of a referee authorizes, can only be cor

rected on motion to correct or set

aside the judgment, it can not be corrected on appeal.

An appeal heard at General Term by three Judges can, after the death of one, be decided by the other two.

This action was brought to recover damages for injuries done to plaintiffs' property, and for an injunction restraining defendant from manufacturing brick on his own premises by means of mi eral coals. It appeared that plaintiffs are the

owners of certain real estate upon which iff's purchased the adjoining land. One they had erected an expensive dwelling cannot erect a nuisance upon his land house in 1857, and since then they have adjoining vacant lands owned by another, been engaged in improving and beautify- and thus measurably control the uses to ing by grading, terracing, laying out roads which his neighbors' land may, in the fuand walks,and planting trees and shrubs, ture, be subjected. both ornamental and useful. Defendant It appeared that from 1840 to 1853 no owned a brick yard which adjoined bricks were burned upon the defendant's plaintiffs' land, and was about 1,320 feet premises; that bricks were burned there south of their dwelling house,and 567 feet from 1853 to 1857; that the brickyard south of their woods. Defendant, in was ploughed and used for agricultural burning brick, used anthracite coal, and purposes from 1857 to 1867; that plaint, during the burning of a kiln sulphuric iffs objected to the brickmaking before acid gas, which is poisonous to vegetation, this suit was brought. was generated in quantities, and when the wind blew from the south, while the kilns were burning, this gas was carried upon plaintiffs' property,and had, after repeated attacks,destroyed many of plaintiffs' ornamental trees, and had injured their grape vines and plum trees. It also appeared that defendant's property had been used as a brick yard at intervals before plaintiffs purchased their property, and for more than twenty years.

G. W. Miller for applt.
G. P. Jenks for respts.

Held, That the burning of the brick

with anthracite coal for fuel was a nuisance, and plaintiffs were entitled to an injunction restraining defendant from the use of the same; that an injunction was the proper remedy for plaintiffs, as an ac

Held. That no such acquiescence in the nuisance by plaintiffs was shown as would be a bar to the relief sought; that defendant could not claim a right by prescription, as, if such right could be thus acquired, there had not been a continuous user and exercise of the right, by which alone it could be established.

It was claimed that the portion of the judgment awarding an injunction, was broader and more unlimited than the report of the referee authorized.

Held, That the error, if it existed, could only be corrected on motion to correct it, or to set aside the judgment; it could not be corrected on appeal.

It appeared that one of the judges who heard the appeal at General Term, died before the decision was made, and the appeal was decided by the two remaining

judges, and this appeal is from that deci

Judgment of General Term, affirming judgment for plaintiffs, entered upon report of referee, affirmed. Opinion by Earl, J.

tion at law was not an adequate remedy. An injunction can be demanded to pre-sion. vent irreparable injury, interminable liti- Held. That the decision was properly gation and a multiplicity of suits, and its made, as two judges can hold a General refusal in a proper case would be error to Term. 2 Lans, 499. be corrected by an appellant tribunal. The granting or refusal of it is a matter of grace only in that it rests in the sound discretion of the Court, and if that discretion is improperly exercised, the error can be corrected on appeal. The fact that the brick burning was not continual, and that the injury was only occasional, furnished no answer to the claim for an injunction. It did not matter that defendant's property was used as a brickyard before plaint

REPAIRS. CONNECTICUT SUPREME COURT OF ER

RORS.

Daniel Hatch and another agst Anna
Stamper.

Decided January, 1875.

Lessee bound to make ordinary repairs.

Statute 1869 applies only to cases building which shall have been or shall where the building becomes untenant- be, without any fault or neglect on their able by reason of some sudden and part, destroyed or so injured by the ele unexpected calamity.

ments or any other cause as to be untenAssumpsit for the use and occupation antable or unfit for occupancy, shall not of leased premises brought to the Court be liable or bound to pay rent to the lesof Common Pleas of Fairfield County, and sor, lessors or owners thereof after such tried to the Court, on the general issue destruction or injury, unless otherwise exwith notice, before DeForest J. Judg-pressly provided by written agreement bement for the plaintiffs, and motion for a new trial by the defendant. The case is sufficiently stated in the opinion.

tween such parties." It further provides that the lessee may quit possession of the leased building, surrender the same to the lessor, and require the cancellation of the lease.

This statute manifestly has no reference to ordinary repairs, such as the lessee at common law is bound to make. It applies only to cases where the building becomes untenantable by reason of some sudden and unexpected calamity; as where it is wholly or partially destroyed by fire, water, or by a mob, or other like

Carpenter, J.: The plaintiffs leased to the defendant, for the term of one year, an old two-story dwelling-house, the lower story of which she used for a millinery store, and the upper for a residence. The lease was by parol, the lessors agreeing to repair the roof and water pipes, but nothing more. Around the windows, and where an addition was joined to the main building, water came in during rain storms and damaged the defendant's cause. It was designed to relieve the goods to the amount of several hundred dollars. The leakage also rendered the occupancy of the house inconvenient in other respects, making it damp, and to some extent unhealthy. Both parties refused to repair, and at the end of the tenth month the defendant vacated the premises and tendered the possession thereof to the plaintiffs, which they refused to accept. This suit is brought to recover rent for the remainder of the term.

The defendant claims that the leased premises had become untenantable, that by the act of 1869 she was justified in vacating them, and that she was absolved from all liability to pay rent thereafter.

It is conceded that by the common law, unless otherwise agreed, the tenant is bound to make ordinary repairs. But it

tenant of the burden of paying rent after it had become impossible for him to use. and occupy the premises leased.

In this case the motion describes the condition of the building, states that the leakage "might have been prevented by proper repairs, and at no great expense," and expressly finds as follows: "that said tenement did not become in fact untenantable or unfit for occupancy from the causes aforesaid, or from any other cause, during the term of said lease."

The case, therefore, is not within the statute; and the court below, in deciding, upon the facts stated, that the defendant was liable for rent, decided correctly, and a new trial must be refused.

SALE OF GROWING TREES. IN

TEREST IN LAND. STATUTE
OF FRAUDS.

is claimed that the statute referred to, in
the absence of a special agreement,changes
the common law in this respect, and ENGLISH REPORTS.
throws the burden of making all repairs
upon the landlord.

The statute referred to is as follows:

COMMON PLEAS

DIVISION.

Marshall v. Green.
Decided Nov. 6, 1875.

"The lessee, lessees, or occupants of any A sale of growing timber, to be taken

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Declaration. 1st count for trespass to land and cutting down certain trees of the plaintiff; 2d, trover.

Pleas: Not guilty, not possessed, leave and license, &c., and a special plea setting forth that the plaintiff had sold to defendant a large quantity of timber trees growing upon the land, with liberty to the defendant to go on the land to remove the trees, and that the acts complained of were done in pursuance of the agreement, and with the privity and consent of plaintiff. Issues thereon.

Upon these facts a verdict was entered for plaintiff, leave being reserved to defendant to move to enter it for himself, on the grounds that the facts disclosed a down and remove the trees. right on the part of defendant to cut

A rule nisi had been obtained accord

ingly.

a

Held, (by Coleridge, C. J.) If there was valid sale of the trees, plaintiff must fail.

It is not denied that there was a verbal contract, and the question, therefore, is whether this was a contract which required to be in writing under the Statute of Frauds. The first question is whether this was a contract within the 4th section, as being a "contract or sale of lands, tenements or hereditaments, or any interest in or concerning them." If the matter were res integra, I should be inclined to think that the words of the Statute were never meant to apply to such a matter as this at all, but referred only to such interests as are known to conveyancers. It is, however, too late to maintain this view now.

On the trial it appeared that plaintiff was the owner of the land upon which the timber was growing; that negotiations It is clear on the decisions that there having been had between plaintiff and de-are certain natural growths which, under fendant as to the purchase of the timber certain circumstances, have been held to by the latter, and some controversy hav-be within the Section. It is difficult to ing arisen as to the number of trees, the lay down a rule which can stand the test parties, on February 27th, went over the of every case. ground, viewed the trees, and contracted orally that defendant should take 22 trees at 26£., the trees to be got away as soon as possible.

I find the following statement of the law with regard to this subject, in the notes in Williams' Saunders upon the case of Duppa v. Mayo, p 395." The princiThe defendant entered and commenced ple of these decisions appears to be this, to cut the trees upon the 2d of March. that wherever at the time of the contract When six trees had been cut the plaintiff it is contemplated that the purchaser countermanded the sale and demanded an should derive a benefit from the further alteration of the terms before allowing the remaining timber to be felled. Nevertheless defendant felled the balance, and, notwithstanding a notice from plaintiff to the contrary, subsequently removed the whole.

Before the plaintiff had countermanded the sale, the defendant had agreed to sell the stumps and tops to a third person.

growth of the thing sold from further vegetation and from the nutriment to be afforded by the land, the contract is to be considered as for an interest in land; but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the con

tract is for goods sold. This doctrine has ownership by selling the tops and stumps been materially qualified by later deci--the words of the section having received sions, and it appears to be now settled all the fulfilment the subject matter was that, with respect to emblements or fruc- capable of. tus industriales, &c., the corn and other growth of the earth which are produced not spontaneously, but by labor and industry, a contract for the sale of them while growing, whether they are in a state of maturity or whether they have still to derive nutriment from the land in order to bring them to that state, is not a contract for the sale of any interest in land, but merely for the sale of goods."

The propositions so laid down, as applied to the present case, seem to afford a very clear and intelligible rule. Here the contract was that the trees should be got away as soon as possible, and they were almost immediately cut down. Apart from any decision on the subject, and as a matter of common sense it would seem obvious that a sale of twenty-two trees to be taken away immediately was not a sale of an interest in land, but merely of so much timber. It seems to me, therefore, that both common sense and authority combine to show that this was not a contract for an interest in land within the Section.

2. The remaining question is whether this contract was within the 17th section. This depends on whether there was here an acceptance and actual receipt of part the goods.

Held, (by Brett, J.) There are certain tests applicable to peculiar cases. Where the subject-matter of the contract is growing in the land at the time of the sale, then if by the contract the thing sold is to be delivered at once by the seller, the case is not within the section; where, although the thing may have to remain in the ground some time, it is to be delivered by the seller finally, and the purchaser is to have nothing to do with it until it is severed, the case also is not within the section. Then there comes the class of cases

where the purchaser is to take the thing away himself. In such case where the things are fructus industriales, then, although they are still to derive a benefit from the land after the sale, in order to become fit for delivery, nevertheless it is merely a sale of goods, and not within the section. If they are not fructus indusiriales, then the question seems to be whether it can be gathered from the contract that they are intended to remain in the land for the advantage of the purchaser, and are to derive a benefit from so remaining; then part of the subject matter of the contract is the interest in the

land, and the case is within the section. But if the thing, not being fructus indusIt was very early determined that an triales, is to be delivered immediately, actual manual receipt of the article was whether the seller is to deliver or the not necessary, but that a constructive re-buyer is to enter and take it himself, then ceipt would do. Here six of the trees the buyer is to derive no benefit from the were cut down before the sale was coun- land, and consequently the contract is not termanded, and at a time when it must for an interest in land, but relates solely be taken that that was done with the as- to thing sold itself. sent of the owner. What more could have been done short of actually removing the trees?

Here the trees purchased were timbertrees, and the purchaser was to take them

If anything short of actual manual pos-immediately; therefore, applying the test last mentioned, the contract was not within the 4th Section.

session could be sufficient, all was done that could be done. The trees were bulky, and could not well be removed.

In regard to the question whether or The defendant had exercised an act of not there was an acceptance and actual

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