The sun. [volume] (New York [N.Y.]) 1833-1916, 1916-02-27
NOVEL POINTS OF THE LAW.

landlord to a tenant In the case of the
destruction of leased property In Eng
land by enemy air raids, 'under the
plea. unfortunately not cognizable in any
human court, of military necessity and
advantage" The LdD times decides
that the question Of liability is so sur
rounded with doubtful features that II
10 impossible to predict what the de-
cisiOn Will be when such "A case IL tried.
The editorial brings to light the follow
ing step taken by the English Govern
ment for the protection OF the landlord !:
The Government. as Is we'll known.
ha put forward n scheme Of insurance,
But II u not, as perhaps II ought to be.
and rs II was In the case OF the East
Coast naval raids In the earlier stages
OF the war. one OF a national character.
Its benefits are confined to those who
choose to take advantage of II by paying
tho necessary premiums. In confederation
Of which the policies are issued. The
prudent owner or orcupier of house prop
erty will no doubt endeavor TO avail
himself Of those benefits and. having
regard to the uncertainty which must
prevail, as the following obeervatiOns
will show, until actual decisions are pro-
nounced, as to the real incidence Of the
liability In question. as well as TO the
uncertainty respecting the financial abil-
ity to bear the burden. Of those on whom
II falls. the best course would obviously
be for The parties to arrange between
hemeelveA II poafble. to share the pay
ment Of the insurance IN agreed pro
portions. There will. however. be .
vast number Of cases In which persons
will prefer to run the risk in question
(which appears TO them perhaps to be
only %triflng) rather than add. even to
a slight extent, to tho heavy burdens
which they have TO bear at this difficult
| stv,n .~A A. a.. - .---- H.
lar hat the following remarks will
apply. Tho leases and agreements re-
ferred to are Of course those which were
entered into before the beginning OF the
war"
The decision by the Court Of Queen's
Bench IN Baily We. De Crcsigny Is re-
ferred to IA citing a general principle In
favor OF the landlord AZ follows:
There can be 20 doubt that q man
may by an absolute contract bind him
self TO perform things which subse--
puently become impossible, or 20 pay
damages for the non-perforrnance. and
this construction 10 to he put upon an
unqualified undertaking where me event
which causes the lmnoss'bility was or
might have been anticipated or guarded
against In the contract. or where the
impossibility arises from the act or de-
fault OF the promisor. But when the
event is OF such a character that Il can
not reasonably no supposed 10 have been
In the contemplation Of the contracting
! parties when the contract vas made.
they will not he held hound nv general
words which. though large enough to IN
clude. were not used with reference 10
: the possibility of the particular con-
t'ngency which aftcruard happens. II
Is on this principle that the act Of God
IL IN some cases said 20 excuse a."
breach OF a contract. THIS Is IN fact
Z - 900. .1-..
) II IL an answer 10 a compliant OF an
alleged breach OF contract ;ha, The thinr
| done or eft undone was SO by the act
of God, what Is meant Is that IL was not
? within the contract"
; The Lar Timcs says that applying
"this test Il seems capable OF being urged
, with some force that ~ destruction of
the premises by aircraft could scarcely.
! before the beginning OF this war, be
, reasonably he supposed 20 have been
4 within contemplation. the general words
:. Of the covenant 20 repair. In the terms
! Of the learned Judge which have jus.
. been quoted. were not used with refer
. ence TO the possibility OF the particular
j.. contingency which afteIward happens
And the argument. al least AT first sight.
appears a formidable one. The answer,
however. seems TO no supplied by n con-
sidcration which has already been re-
|. ferrcd 70. I. is No douh, true that II tho
. event spoken ~ "a 'he destruction ~
, the property by bombs ~ missiles from
|, aircraft. and that only. Y IS probably
!, one altoge,hc: outside the cnu'cmpla-
, tion OF tho parties. But the acts 81
foreign enemies taken as a whole class
cannot he 81 spoken OF. and Mo acts Tn
I question are. as already pointed ont. orl,
/, particular Instances OF that class"
I In Mercer Va. Lowery. In the 50. Louis
Court Of Appeals. Missouri. IN the SUI
-. preme Cou-. of Missouri CJanuary. 1916.
ISL s. w. lo5o), y was held hat where
e a husband took his wife 90 a hotel and
/ contracted for lodging there. his goods
hu. not his wife's wee suhtcr' 70 tho
lien provided ny Revised statutes 1909
section sea-. ~ ssouri. providing That
! hotel Keepers shall have n lien on 'Ac
. baggage and other valuah'cs ~ their
r guests brought into the hotel by the
guests FOR proper charges hue from .h'
. guests. since the word quest a. used
IN the statute. applies "a the party con-
! tracing for the entertainment and mo-
o 10 his guests.
The question ~ 20 whether the will o'
n blind man was valid as complying
with the North Carolina statute rcqIir-
o ing that 4. be "suhscr3hcd ny tho VII.
ncSses IN the presence ~ the 'cs'ator.'
although they were In the am room
WIN MN NfF lAl't III Nv N'N' w
Allrcd's will ny tho supreme Cour, OF
n tina. state. IN which tho court said
, There was n ono time n disposition
10 give n restricted meaning to the term
in the presence OF the 'cstator.' and ,C
hold that IL meant In the sight OF q,
& within the scope 81 the vision bur. rs
o Il was soon seen that this narrow con.
struCtion would prevent a blind MAI
from making a will, and that II exclude
n tn" operation Of The other srnses. cXccp'
q that Of sight. a broader and more ll,crI
n construction has been generally adopted
and II IL now VOL settled that u bin,
r man may know of tho presence ~ III,
Il witness without sight. and that he ma,
make n will"
The court refers to the decision II
Reynolds W.. Reynolds before the SUI
o preme Court ~ South Carolina, In which
the opinion said
"It II true that II II stated in man!
cases that witnesses are not In the pres
ence of the t~estator unless they ar,
within his sight but these statements
n are made with reference TO testator'
n who can sec. As most men can sec
q vision IL the usual and safest test q
@ presence. hut IL il not the only tcs'
d A man may take note ~ tho prcscuc,
II NJ another by the other senses. as hear
ing or touch, Certainty, II two hin,
men are IN tho same room, talking 20
gether. they are in each others presence
n . . In cases where he has lost or can
d not use his sense Of sight. Il his min,
and hearing are not affected. ~ he Il
sensible OF what Is b"inE done, II th'
n