was made to depend upon actual proof of public prejudice or injury, it would be very difficult, in any case, to establish the invalidity, although the moral evidence might be very convincing. We are of opinion that the principle upon which the case was submitted to the jury is sanctioned by the decisions in this State, and that the jury were properly instructed that, if the purpose of the agreement was to prevent competition in the price of coal between the retail dealers, it was illegal, and justified the conviction of the defendants.

LANDLORD AND TENANT-EASEMENT-LEASE. -The Supreme Court of Illinois in Keating v. Springer, 34 N. E. Rep. 805, decide interesting questions of the law pertaining to easement of light and air. The holding is that a lessee of a building surrounded by land of the lessor has no implied right to the use of light and air from the adjoining land and that where a lease contains a provision that the lessor "shall not build at the rear of said premises nearer than 25 feet, and no obstruction higher than six feet shall be placed in such manner as to obstruct light to said premises," the erection by the lessor of a building at the side of the leased premises so as to obstruct the light thereto is such a breach of the lease as will entitle the lessor to recover damages therefor, either in an action brought by him for that purpose, or as an offset to an action for rent accruing while he remains in possession. Magruder, J., says:

The evidence tends to show that a strong light is necessary for such business of manufacturing and polishing marble, as appellant was engaged in and that the demised premises were selected by the appellant for that business mainly because of their freedom from surrounding obstructions to the supply of light. Accordingly the defendant below offered to prove that the erection of the Springer building on the south side of the Keating building prevented the entry of light into the latter from the south and west. Upon objection by the plaintiff, the court refused to receive the testimony, and an exception was taken to its rulings by the defendant. The action of the trial court was correct, if there is no express covenant or agreement in the lease obligating the landlord to permit the light to pass over the south lot into the leased premises. The English doctrine is that, "if one who has a house with windows looking upon his own vacant land sell the same, he may not erect upon his vacant land a structure which shall essentially deprive such house of the light through its windows." Washb. Easem. marg. p. 492, par. 5. This doctrine, however, does not prevail in the majority of the American States. It is held to be inapplicable in a country like this, where the use, value, and ownership of land are constantly changing. Air and light are the common property of all. The owner of a lot cannot be presumed to have assented to an encroachment thereon if he has permitted the light and air to pass over it into the windows of his neighbor's house, situated *upon the adjoining lot. The actual enjoyment of the

air and light by the latter is upon his own premises only. The prevalent rule in the United States is that an easement in the unobstructed passage of light over an adjoining close cannot be acquired by prescription. 2 Woodf. Landl. & Ten. marg. p. 703, and notes; 1 Tayl. Landl. & Ten. §§ 239, 380, and notes; Keats v. Hugo, 115 Mass. 204; Mullen v. Stricker, 19 Ohio St. 135. In the early case of Gerber v. Grabel, 16 Ill. 217, this court held that such a right might be so acquired; but in the later case of Guest v. Reynolds, 68 Ill. 478, the Gerber Case was, in effect, overruled, and it was held that "prescription right, springing up under the narrow limitation in the English law, to prevent obstructions to window lights," "cannot be applied to the growing cities and villages of this country without working the most mischievous consequences, and has never been deemed a part of our law." It is established by the weight of American authority that a grant of the right to the use of light and air will not be implied from the conveyance of a house with windows overlooking the land of the grantor; and that, where the owner of two adjacent lots conveys one of them, a grant of an easement for light and air will not be implied from the nature or use of the structure existing on the lot at the time of the con veyance, or from the necessity of such easement to the convenient enjoyment of the property. Keats v. Hugo, supra; Mullen v. Stricker, supra; 1 Wood, Landl. & Ten. § 209, pp. 422-424, and note; Morrison v. Marquardt, 24 Iowa, 35. "A grant by the owner of two adjoining lots of one of them does not imply the right of an unobstructed passage of light and air over the other." 2 Woodf. Landl. & Ten. marg. p. 703, and note. "The law of implied grants and implied reservations, based upon necessity or use alone, should not be applied to easements for light and air over the premises of another." Mullen v. Stricker, supra; Haverstick v. Sipe, 33 Pa. St. 368; Keiper v. Elein, 51 Ind. 316. It follows that a landlord will not be liable for obstructing his tenant's windows by building on the adjoining close, in the absence of any covenant or agreement in the lease forbidding him to do so. Myers v. Gemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Keiper v. Elein, supra; 2 Woodf. Landl. & Ten. marg. p. 703, and note.

But the authorities all agree that the right to have the light and air enter the windows of a building over an adjoining lot may exist by express grant, or by virtue of an express covenant or agreement. Hilliard v. Coal Co., 41 Ohio St. 662; Brooks v. Reynolds, 106 Mass. 31; Keats v. Hugo, supra; Morrison v. Marquardt, supra. The question then arises whether the erection of the Springer building could have been regarded as a violation of the express terms of the lease, if proof had been admitted showing that it obstructed the light necessary to carry on the business. The lease contains the following provision: "Party of the first part shall not build at the rear of said premises nearer than 25 feet, and no obstruction higher than six feet shall be placed in such manner as to obstruct light to said premises." The meaning of the word "premises," as here used, is not to be restricted to the Keating building alone, but embraces also the space in the rear thereof. The lease speaks of "all those premises described as follows;" and then mentions, as constituting those premises-First, the basement; second, the store floor; "also a space in the yard in the rear," 25 feet deep. The space in the rear is as much a part of the premises demised as the basement and the store floor. Therefore the appellee agreed that he would not build nearer than 25 feet to the west line of the demised space west of the Keating

building, which space was 25 feet wide from east to west. The Springer building was 75 feet deep, while the Keating building was only 50 feet deep. It follows that the extension of the former west of the rear of the latter was along the south line of said space in the yard at the rear. The north wall of the Springer building did not extend further west than the west line of said space in the yard, and consequently the whole of the Springer building was south of the demised premises; hence we think counsel for appellee is right in the contention that no part of that building can be considered as an obstruction placed in the rear or to the west of the premises leased to appellant. But we cannot agree with counsel in so construing the language of the provision as to limit it to obstructions placed in the rear. The landlord does not agree that no obstruction higher than six feet shall be placed in the rear in such manner as to obstruct light to said premises. His agreement is that no obstruction higher than six feet shall be placed, whether to the north or to the west or to the south, in such manner as to obstruct light to said building; that is, to said space in the rear, as well as to said building. The Springer building-a brick structure, five stories high-was so constructed that its north wall joined the south wall of the Keating building, and the south line of the space in the yard at the rear thereof. In view of the express provision in the lease, as above quoted and construed, we are of the opinion that the defendant below was entitled to prove, if he could, that the Springer building was an obstruction placed in such manner as to obstruct light to said premises, and that the trial court should have admitted the proof upon that subject when offered.

It is claimed, however, that the offered evidence was properly rejected, because this suit is for rent accruing during a period while the tenant was in possession. In order to constitute an eviction, it is not necessary that there should be an actual physical expulsion. Acts of a grave and permanent character, which amount to a clear indication of intention on the landlord's part to deprive the tenants of the enjoyment of the demised premises, will constitute an eviction. Hayner v. Smith, 63 Ill. 430. If the acts of the landlord are such as merely tend to diminish the beneficial enjoyment of the premises, the tenant is still bound for the rent, if he continues to occupy the premises. Unless he abandons the premises, his obligation to pay the rent remains. Skally v. Shute, 132 Mass. 367. We said in News Co. v. Browne, 103 Ill. 317: "The rule is well settled that the wrongful act of the landlord does not bar him from a recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession either actually or constrnctively, or the premises rendered useless. Edgerton v. Page, 20 N. Y. 284; Haligan v. Wade, 21 Ill. 470; Leadbeater v. Roth, 25 Ill. 587." To "evict" a tenant, according to the original signification of the word, is to deprive him of the possession of the land. But the landlord, without being guilty of an actual physical disturbance of the tenant's possession, may yet do such acts as will justify or warrant the tenant in leaving the premises. The latter may abandon the premises in consequence of such acts, or he may continue to occupy them. If he abandons them, then the circumstances which justify such abandonment, taken in connection with the act of abandonment itself, will support a plea of eviction, as against an action for rent. If, however, the tenant makes no surrender of the possession, bu: continues to occupy the premises after the commis of the acts which

would justify him in abandoning them, he will be deemed to have waived his right to abandon, and he cannot sustain a plea of eviction by showing that there were circumstances which would have justified him in leaving the premises; hence it has been held that there cannot be a constructive eviction without a surrender of possession. It would be unjust to permit the tenant to remain in possession, and then escape the payment of rent by pleading a state of facts which, though conferring a right to abandon, had been unaccompanied by the exercise of that right. Edgerton v. Page, supra; Boreel v. Lawton, 90 N. Y. 293; De Witt v. Pierson, 112 Mass. 8; Warren v. Wagner, 75 Ala. 188; Wright v. Lattin, 38 Ill. 293; 1 Tayl. Landl. & Ten. (8th Ed.) §§ 380, 381, and notes; Wood, Landl. & Ten. (2d Ed.) § 477, pp. 1104-1106; Alger v. Kennedy, 49 Vt. 109; Scott v. Simons, 54 N. H. 426; Jackson v. Eddy, 12 Mo. 209. But though the tenant will not be allowed to plead eviction as a bar to the recovery of rent where he has remained in possession after the performance of the acts which would have justified him in leaving the premises, yet he is not for that reason without remedy. In those States where the doctrine of recoupment is recognized, he may recoup such damages as he may have sustained by reason of the acts of the landlord, against the rent sought to be recovered. 1 Tayl. Landl. & Ten. § 374; 2 Tayl. Landl. & Ten. § 631; 2 Wood, Landl. & Ten. § 477, p. 1107; Edgerton v. Page, supra; Warren v. Wagner, supra. Taylor, in his work on Landlord and Tenant (Section 631), says: "By the law of recoupment, as now established in many of the United States, the tenant can avail himself, as a defense pro tanto to an action of debt for rent, of the landlord's breach of his covenants." The doctrine of recoupment is recognized in this State, and has been applied in proceedings begun by the issuance of distress warrants, and in actions for rent. Wright v. Lattin, supra; Lindley v. Miller, 67 Ill. 244; Lynch v. Baldwin, 69 Ill. 210; Pepper v. Rowley, 73 Ill. 262. In Lynch v. Baldwin, supra, where the landlord had issued a distress warrant, we said: "As to recouping damages for any loss or injury sus. tained by the tenant, we have no doubt that it may be done, as they grow out of the same transaction. The object of this inquiry is to ascertain the amount of rent due; and, if the acts of the landlord impaired the value of the use of the premises, then the tenant should not pay the same rent as if the landlord had done no act to reduce such value." In Pepper v. Rowley, supra, which was an action to recover rent due under a lease, we said: "If there has been a breach of any covenant contained in the lease, whatever damage appellee had sustained in consequence thereof may be recouped in this action from the amount of rent due under the lease." In the case at bar the consolidated proceeding not only includes a suit for rent, but also several proceedings begun by the issuance of distress warrants; and the stipulation permits the defendant to introduce, under the general issue, "any defense and also any set-off, whether matter of contract or tort, that he may have, in the same manner as if specificially pleaded." We therefore think that the offered testimony as to the effect of the erection of the Springer building upon the supply of light should have been received, in order that any damages which the defendant may have sustained thereby might be recouped in reduction of the amount of recovery, and that defendant was not precluded from showing such damages by his failure to surrender possession at an earlier date.

OF

FOREIGN JUDGMENT DISALLOWANCE CLAIM BY PROBATE Court. The Supreme Court of Wisconsin decides in the case of Sanborn v. Perry, 56 N. W. Rep. 337, that under Gen. St. Minn. 1878, ch. 53, § 6, requiring all claims against a decedent to be presented to the Probate Court within 18 months after his death, and prohibiting any action against an executor or administrator, the disallowance of a claim by the Probate Court of that State, not presented for nearly 20 years after the death of a resident and citizen of that State, has the force and effect of a judgment in favor of his estate against the claimant; and such disallowance, affirmed on appeal by the District Court of that State, is conclusive on the claimant in Wisconsin, under Const. U. S. art. 4, § 1, which requires "full faith and credit to be given in each State to the public acts, records and judicial proceedings in every other State." Cassoday, J., says:

The question presented by the record turns upon the effect to be given to the disallowance of the plaintiff's claim by the Probate Court of Ramsey county, Minn., October 9, 1889, and the affirmance thereof by the district court of the same county, June 3, 1890. By the stipulation and agreement of the parties made in the trial court, and of record herein, the statutes and laws of Minnesota, and the decisions of the Supreme Court of that State, as to the questions here involved, are to be considered and taken as evidence in this case. The debtor died December 25, 1860, and administrators of his estate were thereupon appointed by the Probate Court of Ramsey county, in which he resided at the time of his death. Upon granting letters of administration, the statute of that State required commissioners to be appointed to examine and adjust all claims and demands against the estate. Section 1, ch. 53, Gen. St. 1878. The statutes of that State also required the Probate Court to limit the time within which such claims should be presented, not exceed ing 18 months in the first instance, and which time the court was at liberty to extend, so that the whole time should not exceed two years from the time of appointing such commissioners. Section 6, 7, Id. The statutes of that State also provided that "in no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator." Section 53, Id. The case at bar does not come within the exceptions therein expressly made. True, the commismissioners appointed failed to qualify, but the statute of that State also required the judge of the Probate Court to perform the duties conferred upon such commissioners. Chapter 69, Laws 1879. We perceive no reason why the plaintiff might not have presented his claim and forced the settlement of the estate. The Supreme Court of that State appears to have frequently held that every claim which is not presented for allowance within the time limited by the Probate Court for that purpose is forever barred, unless it came within some one of the exceptions named in the statute. Bank v. Slatter, 21 Minn. 172, 174; Fern v.

Leuthold, 39 Minn. 212, 39 N. W. Rep. 399; Hill v. Townley, 45 Minn. 168, 47 N. W. Rep. 653; Hill v. Nickols, 47 Minn. 382, 50 N. W. Rep. 367. The law, as thus declared, was, in effect, continued and preserved by the new "Probate Code" of that State, which was enacted and approved April 24, 1889, and which by its express terms went into force and effect October 1, 1889, being eight days prior to the disallowance of the plaintiff's claim by the Probate Court of Ramsey county. Sections 102-115; 2 St. Minn. 1891, §§ 57155729. Moreover, section 102 of that Probate Code expressly declares that "the allowance or disallowance of any claim shall have the same force and effect as a judgment for or against the estate." Id. § 5715. Thus it appears that the disallowance of the plaintiff's claim by the Probate Court, October 8, 1889, had the force and effect of a judgment in favor of the estate and against the plaintiff; and of course the affirmance of that judgment by the District Court, June 3, 1890, had the same force and effect, and therefore was conclusive upon the plaintiff in that State, whatever may have been the law of Minnesota prior to that enactment. If the plaintiff was dissatisfied with such adjudications of the Probate and District Courts, he had his remedy by appealing to the Supreme Court of that State. His failure to appeal would seem to indicate an absence of any doubt as to the correctness of that judgment. The question here presented is whether that judgment shall have the same force and effect in this State that it has in that State. The constitution of the United States declares that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State." Section 1, art. 4. This provision is binding upon the courts of this State as well as the courts of other States. The provision quoted has frequently been construed by the Supreme Court of the United States, and such construction is necessarily binding upon all State courts. Following Mills v. Duryee, 7 Cranch, 481, it was said by Marshall, C. J., speaking for the whole court, in Hampton v. McConnel, 3 Wheat. 235, that: "The doctrine there held was that the judgment of a State Court should have the same credit, validity, and effect, in every other court in the United States, which it had in the State where it was pronounced; and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other court in the United States." So in McElmoyle v. Cohen, 13 Pet. 325, 326, Mr. Justice Wayne, speaking for the whole court, said: "The faith and credit due to it [the foreign judgment] as the judicial proceeding of a State is given by the constitution, independently of all legislation." And again, quoting from Mr. Story's Commentaries, he said: "If a judgment is conclusive in the State where it is pronounced, it is equally conclusive everywhere in the States of the Union. If re-examinable there, it is open to the same inquiries in every other State." Numerous cases in the same court might be cited to the same effect. Chicago & A. R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. Rep. 398; Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. Rep. 224. In a very recent case it has been held by that court that "the construction given by the Supreme Court of a State to a statute of limitation of the State will be followed by this court, even in a case decided the other way in the Circuit Court [of the United States] before the decision of the State Court." Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. Rep. 466. See, also, Morgan v. Hamlet, 113 U. S. 449, 5 Sup. Ct. Rep. 583. The judgment of the Circuit Court is reversed, and the cause is remanded, with direction to affirm the judgment of the county court.

FALSE PRETENSE IN THE PURCHASE OF MERCHANDISE-RESCISSION OF THE CONTRACT OF SALE. Introductory.-This discussion is intended to cover the quasi-criminal nature of subject rather than that of the offense against the public, to discuss the relative attitude of vendor and vendee of goods; the right of the one to make representations for the purpose of obtaining credit, and the right of the other to rely upon such representations in the sale of his merchandise, and to rescind the contract of sale of such merchandise when the falsity of the representations upon which credit was predicated, is ascertained.

The discussion is intended to be limited as nearly as convenient to the transactions among merchants and jobbers, restricting the term merchant to the retail trade. In order to constitute a false pretense, or to make the offense complete, of which the vendor complains, the falseness of the representations must, of course, be shown, since if no designedly misrepresentation is made by the vendee to obtain credit, there would not exist the intent to defraud. Of course, a man may have it in his heart not to pay for the goods for which he is ready to pledge his word, and he may even design not to pay for them, but if he makes no false statements of his ability to pay, and offers no inducements of a fraudulent character in order to obtain the credit, it cannot be claimed that he has resorted to false pretense in overruling objection or influencing the action of his creditor. Their relation under such circumstances would be simply as debtor and creditor. The vendor must rely upon these false statements to such a degree that the credit would not have been extended to vendee without them.1 These statements on the part of the vendee constitute in a sense the consideration upon which the credit is extended and the vendor releases possession of his merchandise. These statements designed to influence the action of the vendor must be made before the sale is consummated. For upon the consummation of of the sale, statements of business character, financial worth, and all those representations of purchasers, wickedly designed to effect their object, can have no bearing upon this question and ought not to be received to

1 See Adams v. Schiffer, 11 Col. 15, 7 Am. St. Rep. 202.

The

show the offense of false pretense. vendor did not rely upon such statements before concluding to extend the credit to the purchaser. In some of the States a prosecution for the offense of obtaining goods by means of false pretenses, cannot be maintained unless the statements relied upon to prove the offense are in writing. This is the rule in New York. In Illinois, in order to proceed against a fraudulent buyer, by an order of arrest in a civil case, these statements relied upon to show the false pretense must be in writing. There are authorities which hold that the exact time as to which the false statements are made before sale is consummated, is unimportant, except it may be to show whether or not the vendor relied upon these statements or not. If the false representations are made at any time before sale and the vendor acts, or is permitted to act, in pursuance of the false statements made by purchaser in order to get the credit which is ultimately given, this sale has been held void by the courts of Maine and Massachusetts by reason of the continued fraud on the part of vendee." It would seem as if the courts in these States took a very liberal view of the rights of vendors, in these cases at least; probably a much more liberal view than they would take at this day. It would seem also, in order to obviate much misunderstanding that might arise in consequence of the lapse of time, and change of circumstances of the purchaser, these representations in order to bind him, in simple justice to him, should be renewed from time to time and reduced to writing.

Too much latitude is allowed either to vendor or purchaser in cases where credit is extended upon the representations of the one as to his ability to pay at that time, or some certain time, and the right of the other to insist upon these representations to cover the condition of a sale made at a date, for subsequent to that upon which the representations. were made, although no objection is made on the part of the purchaser, and no explanation offered of his changed circumstances. It is unsafe to stand upon such a rule of practice, it seems to us. Again, goods may be purchased by the false representations, scheming and fraud of the vendee and these same

2 See Seaver v. Dingley, 4 Me. 306; Skinner v. Flint, 105 Mass. 528.

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goods passed on to third persons, and notwithstanding the bad character of the title of the original vendee he may sell to these third persons whose title will hold good if the matters within their knowledge did not reasonably suggest to him the propriety of inquiring into the transactions in which the vendor was engaged, and if this course would not have discovered the fraudulent character of the title of the original vendee. The position of the Maryland court may be sound in this case, but the anomaly is presented of one acquiring title from one who has no title to transfer. However, the weight of authorities sanction this anomaly, so long as the transaction has the bona fide character attached to it. In cases like the above, of course, the goods, or merchandise procured by means of this kind of fraud could not be recovered by the original vendor. But upon rescinding the contract of sale and while the good remain in possession of the vendee, or in the possession of one having no color of legal title, they may be retaken by the vendor, and re-possessed by him and damages recovered for their detention. As the false pretense or misrepresentations constitutes a fraud upon the vendor, the contract is of course void, the vendor may therefore follow and retake them. Some State courts have held that the vendor may reclaim the goods from a third party who took them in payment of an antecedent debt, or from an attaching creditor, or from an execution creditor, or an assignee in bankruptcy. Raw materials that have been manufactured into various articles may be taken in its improved condition. In Georgia it has been contended that the legal right of rescinding the contract and taking the property of the defrauded vendor did not exist. If the rights of the vendor had depended upon mere misrepresentation made by the buyer as to his financial condition at the time of obtaining the goods, it is probable this view of the case would be right. But there is a distinction between the merely obtaining goods by false representations, which are often made for the purpose of inducing credit, when the buyer has full intention to

pay, and where he has reasonable expectations of being able to pay, and the obtaining of goods with the intent in the mind of the buyer never to pay for them. It is difficult

to determine in a prosecution for false pretense just what the intent of the buyer may be at the time he is making the representations for the purpose of inducing the credit. As with other crimes the true intent is to be arrived at by viewing all the circumstances as they existed at the time of the sale. But even here the buyer's intent may be utterly at variance with his financial condition at the date of sale. From the foregoing it will be seen that the offense of a false pretense is made up of four elements which must concur. False statements. means of them. on these statements. ment of the fraud."

The intent to defraud by The reliance of the vendor The actual accomplish

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False Statements.-The law gives a different effect to a representation of existing facts, from that given to a representation of facts to come into existence. To make a false representation the subject of an indictment; or of an action two things are necessary, viz: that it should be a statement likely to impose upon one exercising common prudence and caution, and that it should be a statement of an existing fact. Falsely claiming a differerent personalty in order to collect money constitutes this offense. A representation of some fact or circumstance, calculated to mislead, which is not true. And a false pretense prima facie imports a misrepresentation as to something existing. The misrepresentation must be of something material, constituting the inducement or motive to the act or omission of the other and by which he is actually mislead to his injury; and as to something as to which one party places a known confidence in the other, not merely of a matter of opinion equally open to both for examination and inquiry, and when neither party is presumed to trust to the other, but to rely upon his own judgment.10 "The misrepresentation which will vitiate a contract of sale must relate not only to a material matter constituting an inducement to the contract,

6 See Commonwealth v. McDuffy, 126 Mass. 470.

7 See Anderson's Dic. Law, 808.

8 State v. Goble, 70 Iowa, 447.

9 Commonwealth v. Drew, 19 Pick. 184.

10 Mason Lumber Co. v. Buetel, 101 U. S. 637; Buck ner v. Street, 15 F. R. 368.