Page:Harvard Law Review Volume 9.djvu/317

RECENT CASES. 289 Partnership — Set-off of a Personal Debt of one Partner. — A partnership was owed by the estate of a deceased person the sum of $40,604.55. A member of the partnership, Thomas H. Allen, owed the estate $38,678.28, a debt growing. out of his acts as executor of said estate. Held, that Allen could set off a personal judgment for that sum against himself in favor of the estate against the indebtedness of the estate to the firm. Kugentei al. v. Allen etal , 32 S. W. Rep. 9 (Tenn.). As a rule, a debt which is owed by one of the members of a firm cannot be set off at law against a debt owing to the firm, i here are exceptions to this rule, however. One exception is that if the parties have agreed expressly or impliedly thai a debt owing by one of tjiem can be set off against a debt owing to the firm, effect will be given to that agreement and the case taken out of the general rule, i Lindley on Partnership, *294 ; Rogers v. Bafchelor, 12 Peters, 221. The principal case falls within this exception, as the court thought that Thomas H. Allen had, if not express, at any rate implied authority to set off the two debts. Pledge — Convi rsion — Tortious Sale by Pledgef. — A pledgee made a tortious sale of his pledge ; no tender of the indebtedness had been made. Held, the tortious sale by the pledgee gives the pledgor right to immediate possession, and he may maintain trover without making tender of the indebtedness. IVariiig v. Gaskill^ 22 ."). E. Rep. 659 (Ga.). The opinion here handed down does not discuss the authorities bearing on the point decided, nor does it disclose the reasoning on which the decision is based. This is the more to be regretted because the cases contra^ Donald v. Suckling, L. R. i Q. B. 585, and Ilalliday v. Holg.tte, L. R. 3 hxch. 299, are cited by the text-books without disapproval. The reasoning of the English cases is, that a sale or a repledge for a larger amount, though a tortious act, does not terminate the pledgee's interest in the pledge, i. e. does not give the pledgor a right to immediate possession; the pledgor has not such right to immediate possession until tender of the indebtedness, and until he has such right he cannot maintain trover. In Whitaker v. Swnner, 20 Pick 399, Bali. Ins. Co. v. Dairy mple, 25 Md. 269, at 2,06, Bulkely w. IVelch, t^i Conn. 339, and Stearns v. JlJarsk, 4 Denio, 227, at 231, a misuser of the pledge was held to give the pledgor right to immediate possession. 1 he doctrine of these cases is, it is sub- mitted preferable to the English view ; the contract is interpreted as by implication of law giving the pledgor a right which in the ordinary case of pledge, as it seems to us, every pledgor would require and every honest pledgee would willingly concede, if their attention were directed to this point at the time of making the contract of pledge In accord with the principal case see the dissenting opinion of Mr. Justice Williams in Johnson v. S:ear, 15 C. B. (n. s.) 330. Property — Landlord and Tenant — Implied Condition of Fitness for Habhaiion. — Where one hires furnished lodgings, there is no implied agreement that they shall continue habitable throughout the term, and therefore, when the fam ly of the lessor becomes infected with scarlet fever which is communicated to that of the lessee, the latter cannot recover from the former medical expenses thereby incurred. Sarson v. Roberts, [1895] 2 Q B. 395. There is in general no implied covenant on the part of a lessor that the premises are fit for habitation, nor that he will make any repairs during the term. An exception has been laid down in the English courts to the effect that in a lease of a furnished house or of apartments there is a warranty that the premises are reasonably inhabit- able and if they are not so the tenant may quit without notice. Smith v. AJarrable, 11 M. & W. 5 lyUson V. Finch- Hat on, L. R. 2 Ex. D. 336 ; Birdw. Lord Grevile, i C. & E. 317. These cases have been questioned in the United States, and even in England the exception has never been extended far enough to imply a warranty that the premises shall remain in tenantable condition throughout the term. See I/ouard v. Doolittle, 3 Duer, 464 ; Button v. Gerrish, 9 Cush. 89. Property — Staiute of Limitations — Adverse Possess'on. — A landowner, in the belief that his land extended to a certain line, occupied up to such line and culti- vated the land as his own for more than the statutory period of limitation. In fact, a part of the adjoining section was included within the line, but he never intended to claim more than rightfully belonged to him. //^A/, that the possession was not adverse. Davi:. V CaLhvcll, 18 So Rep. 103 CAla.). 1 his is a step back by the Alabama court, and is to be regretted. The doctrine here laid down finds support in the case of Bro^vn v. Cockerell, -x^ Ala. 38, cited in the opinion, but is almost nullified by the later decision in Alexander v. Wheeler, 69 Ala. 332, a so cite.l. The courts of Ransas, Iowa, Maine, and one or two other jurisdic- tions, have reached the same result, but the current of authority is against it and it seems indefensible on principle. The fallacy arises from laying too much stress upon 38