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child would have taken equally as constituting the class named in this devise under the term "family." Does a wife lose her membership in the "family" of her husband when her children die? Or, is birth of issue necessary before a "family" can be said to exist between those joined in the holy bonds of matrimony.

It seems to us that the word "family" was carefully chosen by the testator with the intention of providing for those toward whom the contingent remaindermen sustained a family relation. If the testator desired to limit the devise to blood relations of the remainderman, he could easily have used the term "descendants."

THE RECOVERY OF THE VALUE OF STOLEN PROPERTY BY ACTION OF ASSUMPSIT. In a recent case the Superior Court of Delaware discusses the following interesting question of procedure: Can the plaintiff, where there is a tortious or wrongful taking or detention of personal property, which has not been sold by the tortfeasor, waive the tort and recover the fair value thereof, in an action of assumpsit upon a count for goods sold and delivered?

In the case of Conaway v. Pepper, 108 Atl. Rep. 676, the evidence showed that defendant tortiously secured possession of plaintiff's wagon by misrepresenting to plaintiff's hired man that plaintiff had granted him permission to use the wagon. Defendant still retained the wagon and refused to return it, claiming that plaintiff had agreed to trade his wagon for one of defendant's. Plaintiff brought suit in indebitatus assumpsit for goods sold and delivered. Defendant secured instruction directing a verdict in his favor on the ground that an action in assumpsit was an improper count on the fact adduced, since it did not appear that defendant had sold the wagon and was retaining any proceeds thereof belonging to plaintiff.

There can be no doubt that this was the common law rule, which was due to the fact that for a long while, in the history of the English law, the count for money had and received was the only form of indebitatus assumpsit which was used in cases involving the waiver of tort. 2 Street, Foundations of Legal Liability, 216.

The old rule in Delaware was the common law rule and the trial court was justified in its ruling. Hutton v. Wetherald, 5 Harr. 38. In reversing the decision of the lower court, therefore, the appellate court was compelled to overrule its former decision which it proceeded to do, however, without apparent reluctance. The Court said:

"It would seem that every reason for allow ing a recovery in assumpsit, upon a count for money had and received, of the amount for which the property was sold, will apply with equal force, to a case for the recovery of the fair value of the property, upon a count for goods sold and delivered, where the property is not sold, but retained or consumed by the tortfeasor."

The rule announced by the Court in this case is abundantly sustained by the authorities of many states. Keener, Quasi Cont. 192; 2 Page on Cont. § 843; 2 R. C. L. 756, 757; Woodruff v. Zaban, 17 Ann., Cas. 975 (note) 977; 1 Cooley on Torts, §§ 109, 111; 1 Hilliard on Torts, 47; Putnam v. Wise, 1 Hill (N. Y.) 240 (note); Hill v. Parrott, 3 Taunton, 274; Bradfield v. Patterson, 106 Ala. 397, 17 South. 536; Roberts v. Evans, 43 Cal. 380; Fountain v. Sacramento, 1 Cal. App. 461, 82 Pac. 637; City of Elgin v. Joslyn, 136 Ill. 525, 26 N. E. 1090; Reynolds v. N. Y. Trust Co., 188 Fed. 611, 110 C. C. A. 409, 39 L. R. A. (N. S.) 309; Douns v. Finnegan, 58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. 488; Crane v. Murray, 106 Mo. App. 697, 80 S. W. 280; Galvin v. Mac Mining & Milling Co., 14 Mont. 508, 37 Pac. 366; Abbott v. Blossom, 66 Barb. (N. Y.) 353; Terry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803; Braithwaite v. Akin, 3 N. D. 365, 56 N. W. 135; Barker v. Cory, 15 Ohio, 9; Albrook v. Hathaway, 3 Sneed (Tenn.) 454; Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S. E. 835, 115 Am. St. Rep. 864, 8 Ann. Cas. 736.

The basis of the rule today of the right to waive the tort and sue on indebitatus assumption for goods sold and delivered is the unjust enrichment of the tortfeasor. There is a quasi contract, for breach of whch the plaintiff is allowed to recover the amount which it is against conscience for the defendant to keep. Keener, Quasi Contracts, 159, 160.

A CONFESSION NOT AFFECTED BY THE FACT THAT ACCUSED WAS SUFFERING WITH THE INFLUENZA-The "flu" is not a disease to be "sneezed at" or made light of, as the writer can well certify to from experience. But whether it is a disease serious enough to interfere with the ordinary operations of a rule of evidence might well be left to the circumstances of each individual case. In the recent case of State v. Babineaux, 83 So. Rep. 558, the "flu" was interposed as an objection to the introduction of a confession on the part of the defend. ant who alleged that he was out of his head at the time it was made. In overruling the objection the Supreme Court of Louisiana said:

"The confessions of two of the accused were objected to as having been induced by promises, and that of the other accused as having been

made while sick with the "Flu," and out of his head. The accused testify to the promises having been made, but the persons to whom the confessions were made testify positively and unqualifiedly to the contrary. While the accused, who was sick, testifies to his having been out of his head when he made the confession, and the person to whom he made it says that the accused was very sick-said he had pneumonia -the fact remains that he was not so far out of his head as not to have been able to make the confession; and there is no pretense that he was induced to make it by any promise or prompting from anybody."

BETWEEN

LIABILITY FOR COLLISION RAILROAD AND AUTOMOBILE WHERE VIEW IS UNOBSTRUCTED. - The great number of automobile accidents at railroad crossings and the many legal questions that arise out of such accidents is sufficient to make the recent case of Barrett v. Chicago, M. & St. Paul Ry. Co., 175 N. W. Rep. 954 of some interest.

In this case plaintiff's intestate was riding as a guest in an automobile being driven through the city of Tama, Iowa, across the tracks of the defendant railroad. The plaintiff could have seen the train, probably did see it a long way off, but claimed that the train was exceeding the speed allowed by city ordinance. He also claimed that the enginer could have seen the automobile in time to have stopped the train and that under the last clear chance doctrine the defendant was liable. The plaintiff secured a judgment, which, however, was reversed on appeal and the Supreme Court carefully reviews the whole case and clearly states the respective rights of automobile and railroad under such circumstances.

On the question of speed the Court holds that, although plaintiff's intestate saw the train approaching, he had a right to assume that the engineer would give the customary warning and would not run at a speed in excess of that allowed by law.

The point in the case on which the Court reversed the judgment was the declaration in the instruction that the defendant was liable on the doctrine of last clear chance if the engineer by the exercise of ordinary care should have discovered the peril of the deceased. On this point the Court said:

"Nor does the instruction under which this issue was submitted correctly state the law. In the twenty-fourth paragraph of the charge, the Court said that:

"The rule that, where one, through his own fault, puts himself in a place of danger on a railroad track, he is precluded from recovering damages for his resultant injury or death, is subject to the qualification that where the engineer has, or by the exercise of ordinary care

should have, discovered the peril of the deceased or his position, and it is apparent that he cannot escape, or he, for any reason, does not make effort to do so, it becomes the duty of the engineer to use all means in his power to avoid injuring the person."

"The italics are ours, and are used to point out the precise error the court fell into. It is the settled doctrine of this court that, in order to render the employes of a steam railway company negligent under the doctrine of last fair chance, they must have actually seen the persons injured in such time that, by the exercise of ordinary care, they could have avoided injuring them. It is not enough that, by the exercise of ordinary care, they must have seen. It must appear from the evidence that they in fact did see or knew of their perilous position."

We discussed this rule in an annotation to the case of Aiken v. Metcalf, 102 Atl. Rep. 330; 86 Cent. L. J., 68. The rule of last clear chance is generally limited to cases of wanton, willful injuries inflicted on those whose contributory negligence has placed them in a position of peril. A very recent case by the Supreme Court of Connecticut was announced requiring the injuring party to use every reasonable precaution to discover one who is in a position of danger due to his own negligence. Tullock v. Connecticut Co., 108 Atl. Rep. 556. We believe this rule is open to the objection that one is not expected to anticipate that another will act carelessly in a given emergency.

Another interesting question in the case was that plaintiff claimed that his decedent, Berger, was a guest in the machine operated by one Reinig and that therefore the latter's negligence was not to be imputed to him. The defendant insisted that Berger and Reinig were engaged in a joint enterprise. But the Court, after declaring that the evidence clearly showed that Berger was a guest, held that this was unimportant since even a guest in a machine is liable for failing to look out for his own protection. On this point the Court said:

"Whether or not they were engaged in a joint enterprise, however, was not very important, for Berger, even though a guest, was required, in the exercise of ordinary care for his own protection, to keep a vigilant lookout for approaching trains, when about to pass over the railroad crossing. He was sitting on the front seat with the driver, and enjoyed opportunities for seeing and listening equal to those of the driver. There is no reason for exacting a less degree of care in these respects than Reinig was required to exercise. Beemer v. Railroad, 181 Iowa, 642, 162 N. W. 43."

This last holding by the Court should not be understood to change the well-settled rule that the contributory negligence of the driver of an automobile is not to be imputed to the guest. The rule stated by the Court and which

seems to have surprised both the plaintiff and the defendant is one which requires a passenger in an automobile to exercise reasonable care for his safety. Just what is the extent of a passenger's responsibility in this regard is not clearly settled by the authorities. The guest, of course, is not expected to interfere with the operation of the machine. Latimer v. Anderson Co., 95 Car. 187. But one thing he is required to do: He must keep his eyes open and not close them to obvious dangers. Sherris v. Northern Pac. Ry. Co. (Mont.) 175 Pac. 269; Virginia, etc., Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887. It is his duty to use reasonable care in looking and listening for trains as an automobile approaches a crossing and to call the attention of the driver to the presence of danger. Lawrence v. Denver, etc. Ry. Co. (Utah), 174 Pac. Rep. 817; Anzinger v. Ry. Co. (Pa.), 105 Atl. 87; Brommer v. Ry. Co., 179 Fed. 577, 29 L. R. A. (N. S.) 924; Thompson v. Ry. Co., 165 Cal. 748, 134 Pac. 709.

IS A COVENANT AGAINST ASSIGNMENT OF LEASE WITHOUT LANDLORD'S CONSENT EXTINGUISHED BY CONSENT ONCE GIVEN?

When a lease has a covenant that the tenant shall not assign the agreement, or underlet any part of the premises, and that even though the landlord shall consent to an assignment, no further assignment shall be made without express consent in writing by the landlord, and there is not a similar covenant that no further underlettings shall be made without express consent, and one consent to underlet is given, is the condition not to underlet thereby discharged?

The question of the right to sublet under a lease which requires the consent in writing of the lessor has arisen in New York and elsewhere from the fact that rentals have recently increased enormously since many leases were made, and landlords have refused to accept unobjectionable sublessees, hoping thereby to force the tenant to surrender the premises. Heretofore in this country the provision requiring the consent

of the landlord has been invoked by the landlord in order that undesirable tenants should not be substituted for the original lessee without his consent, and cases are not found providing that consent shall not be withheld except upon reasonable objection, but in England the greed of landlords has forced such a provision into leases for dwellings, and hereafter it will be necessary for tenants here to see to it that they are protected in this particular.

"In the absence of statutory or contractual restrictions to the contrary, a lessee for years may, without the lessor's consent, or an express provision in the lease, either assign, sublet, or mortgage or otherwise encumber the term granted by the lease."1

And it would seem that the lessee's right to sublet may be so restricted by statute or in the terms of the lease by a covenant requiring the lessor's consent in writing, without providing that consent shall not be withheld except upon reasonable objection, that the lessor can arbitrarily refuse to give consent, in which case the lessee will not have any remedy against the lessor for refusal to consent thereto, provided that appropriate language is used. A covenant not to assign or sublet is to be construed strictly against the lessor.2

There are two lines of decisions upon this question, the one laid down in McAdam on Landlord and Tenant, where it is said:

"A single license to sublet or waiver of one act of subletting does not authorize a subsequent subletting, the rule in regard to assignments being inapplicable. The Court, in McKildoe's Ex'r v. Darracott, said: "The only difference between an assignment and underlease in this respect is that the doctrine of Dumpor's case in regard to assignments has not been extended to underleases. It was held in that case that a

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license to assign any part is a dispensation also, 24 Cyc. 962, and cases cited, quoted of the whole condition, and the lessee or his assignees may assign all the residue without license. Whereas, it has been since held that a lessor who has a right of re-entry on a breach of covenant not to underlet, does not, by waiving his entry on one underletting, waive his right to re-enter on a subsequent underletting. In the former case the waiver is of the condition itself. In the latter only of the forfeiture for a particular breach. But in the latter each breach is a complete and not a continuing act of forfeiture.''

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The cases quoted to sustain this position are McKildoe's Ex'r v. Darracott, in which it is held that (1) a lease being forfeited by the act of the lessor in subletting the premises, the forfeiture will be waived if the lessor with knowledge of the forfeiture accepts rent or sues out a distress for rents accruing after the forfeiture; (2) a subletting is not a continuing act of forfeiture, and if the forfeiture is once waived, the waiver cannot afterwards be retracted.

The Court relied on Doe v. Bliss, but in that case it was held that, "Dumpor's case is the law and we cannot now revoke it." In Doe v. Bliss, the covenant was that the lessee should not underlet the premises, which he did, and the landlord received the rent. And it was claimed that by condition broken and forfeiture waived by the first underletting the condition was gone forever, and Dumpor's case was cited as authority to sustain that position. The Court said in Doe v. Bliss:

"I suppose the defendant relies on Dumpor's case and infers that this tolerance is tantamount to a license, but this is too strong a proposition," which clearly draws the distinction between waiver of a breach of a condition and giving a license to sublet. It is stated in 1 Taylor, § 410, that there is no distinction between giving license to assign or to sublet, and the statement in this case that the doctrine in Dumpor's case has not been extended to subletting is without correctness or weight. See,

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In Lynde v. Hough, 10 the lease contained a clause not to let or underlet any part or the whole of the demised premises without written consent of the lessor, under penalty of forfeiture. The lessee, E. C. Hough, without license or consent, assigned his interest to H. R. Hough. Plaintiff sued to recover possession and got a verdict for $4,000.

The Court held that the assignment of his right and interest in the lease without the consent of the plaintiff was not a breach of the covenant not to underlet. Dumpor's case is not denied and the case turns on the breach being an assignment of the term, and not an underletting.

Seaver v. Coburn11 was an action for breach of covenant not to underlet or permit any other person to occupy certain premises. Defendant underlet to Eagle Lodge. Plaintiff accepted rent quarterly for six years. It was held that as

"the use by Eagle Lodge has been subsequently sanctioned by the plaintiff by receiving from them the quarterly payment for rent, and if, as to such use, there was a full waiver of the breach of covenant 'not to permit any other person to occupy,' that would be no bar or defense to an action for another and distinct breach, that had not been waived."

All the above cases except Lynde v.. Hough are waivers of breaches of covenants or conditions after breach, which is a different thing from giving a license to a tenant who has not broken a covenant, as is the case in the question under consideration, which distinction is made in Doe v. Bliss.12 The waiver of the breach of a condition reaffirms the lease as it was before the breach. The other doctrine is stated in 1 Taylor on Landlord and Tenant, § 410, as follows: "When a license to assign or underlet has once been given, the condition is thereby discharged, and no forfeiture is

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incurred by any subsequent alienation; for a proviso, or condition, cannot be divided. or apportioned by act of the parties." Where there is a mere condition and no covenant, a license discharges all restriction; but if there is a covenant with a proviso of forfeiture super-added, the latter only is discharged.

In Dumpor's case,13 there was a bare condition, not a covenant. The two cases, Doe v. Clark, 8 East. 185, and Doe v. Hawke, 2 East. 481, merely attempted to state that case; both were dicta, and in the former case the covenant was against underletting. And in Dickey v. McCulloch,14 it was held that the condition was discharged, but that an action still lay on the covenant. The reason for this will appear on referring to the leading case, which went on the insusceptibility of a condition to be apportioned, while a covenant may be. Note 4, § 410, supra.

This doctrine that there is no difference between a license given to assign or to sublet is correct, and in harmony with it is the statement in 24 Cyc. 962, 967, concerning the right to assign or sublet in the absence of contractual restrictions, which cites Schenkel v. Lischinsky,15 which held that an agreement by a lessee to convey a lesser interest than he himself possessed is not an agreement to assign a lease, but is an agreement to sublet and in the absence of a prohibition against subletting in the original lease, is enforceable.

A license to assign or a license to sublet is a license in either case, which in itself has the same characteristics in law in each case, although the act to be done in each is different. A license is merely a permission to do an act, or authority to do some act, as stated in Clifford v. O'Neill. 16

The leading case in New York on the question under discussion is Siefke v.

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Koch, which case has been cited but once. In the syllabus it is said:

"The consent of the landlord or lessor that the lessee may assign the lease to another operates as a discharge thereafter of the covenant that the lease should not be assigned without the lessor's consent." In the opinion, the Court says:

"The consent of the plaintiff (lessor) that Krakenbuhl, the lessee, might assign to the defendant (assignee), operated as a discharge thereafter of the covenant that, the lease should not be assigned without the plaintiff's consent, and the defendant took by the assignment the remaining interest in the premises, free from the restraint of the condition."18

In other states this doctrine is followed as follows: Where there is a condition in a lease against the assignment of the term without the consent of the lessor, and such consent is given to one assignment without any restriction as to future assignments, the condition is waived altogether, and the assignee may assign the term without the consent of the lessor.19

If the lessor consents to an assignment of the lease (where the lessee covenants that he will not assign without the lessor's written consent), or if he waives the lessee's breach of condition against assigning, the covenant is extinguished in the absence of statute to the contrary,20

Where a lease contains a covenant against assignment, and the restriction is once removed, it operates as a removal of the restriction forever.

"It is questionable whether in any case such a covenant would be enforced so as to produce forfeiture. It is a restraint on alienation and therefore against the policy of the law."2

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