RECENT CASES. 527 party's witnesses to have been mistaken as to the facts testified to was not ground for a new trial. Huish v. Sheldon, Sayer, 27. But a much fairer rule now seems to prevail. If it can be clearly shown that one of the witnesses for the successful party perjured himself as to a material point, or was clearly mistaken as to the facts on which his testimony was based, a new trial will be granted. Lister v. Alundell, i Bos. & Pul. 427 ; Richardson v. Fisher, i Bing. 145. A clear case must be made out, however, to entitle a party to a new trial on this ground ; evidence merely tending to discredit a witness's testimony does not come up to the required standard. Holtz v. Schmidt, 12 Jones & Sp. 327 ; Bunn v. Hoyt, 3 Johns. Ch. 255 ; People v. McGuire, 2 Hun, 269. Property — Apportionment of Rent. — Plaintiff leased to defendant land upon which were certain buildings. The buildings were destroyed by a hurricane. Held, that defendant is entitled to an apportionment of the rent accruing after the destruction of the buildings. Wattles v. South Omaha Ice ^^ Coal Co., 69 N. W. Rep. 785 (Neb.). The court concede that this decision is contrary to the established rule of England and America ; note to McMillan v. Solomon, 94 Am. Dec. 654 ; and is supported by only one case, Whittaker v. Hawley, 25 Kan. 674. They justify this departure from the common law largely on the ground that in interpreting contracts they are to give effect to the intent of the parties. The logical result of their reasoning, as is pointed out by the dissenting judges, would be to abrogate most pf the technical rules of property and contracts. If the common law on this point has outlived its usefulness, as the court evidently believes, it should be modified by a statute, which would affect only the evil to be corrected, rather than by a decision which may prove so embarrassing a precedent. Property — Covenant running with the Land. — Defendant deeded certain premises to A, covenanting that the land was free from encumbrances. By mesne con- veyances, the premises became vested in X. It appeared that the land was encum- bered at the time of the delivery of the deed by defendant. X, the remote grantee, purported to assign to plaintiff all right of action for damages for the breach of defendant's covenant. Held, that, although the covenant was broken upon the de- livery of the deed by the defendant, yet, under the Code allowing the assignment of choses in action, the covenant ran with the land, so that the right to sue upon it vested in X, and by his assignment in the plaintiff. Clarke v. Priest, 42 N. Y. Supp. 766. The ground of the decision is, that as it is said in the cases that such covenant does not run with the land, because upon the delivery of the deed it is immediately broken, thus becoming a chose in action, which cannot be assigned {Clark v. Swift, 3 Met. 390), therefore, when a statute allows the assignment of choses in action it will pass with the land. This reasoning is hardly satisfactory. The better view would seem to be that the statute was intended only to cover express assignments. Even if it were extended to implied assignments, however, it seems difficult to gather from the words of a deed of land an intention to pass a chose in action. Property — Damages for Cutting dow^n Trees. — An action was brought to recover damages for the cutting down and taking away of trees. I/eld, the measure of damages, where a trespasser has acted in good faith, is the value of the trees as standing timber. Clerk v. Holdridge, 43 N. Y. Supp. 1 1 5. The court here follow the case of Wooden-ware Co. v. U. S., 106 U. S. 432. Silsbiiry v.McCoun,^ Comst. 379, is an analogous decision. It does not seem correct in these cases to make the measure of damages depend on the good or bad faith of the tort- feasor. A court, if it wishes to punish a defendant, should give exemplary damages ; buc it ought not to judge the actual loss of the plaintiff by the defendant's motive. In this class of cases, it would seem that damages should be assessed at the value of the real estate when it first becomes a chattel. Perhaps in the case of trees a plain- tiff should recover their value as standing timber, whenever the trees are more valuable when standing than they can be after being cut down. Property— Failure of Consideration for Conveyance — Knowledge by Grantor that such Failure might occur. — When land was deeded in fulfil- ment of a supposed marriage contract between grantor and grantee, the long absence of a former husband of grantee being known to both parties, held, that the grantor's heirs cannot recover the land as deeded under a mistake of fact when the former hus- band turned out to have been alive. Ogden v. McHugh, 45 N. E. Rep. 731 (Mass.). A gift by will in such a case, where there was no fraud, could not be impugned. Giles V. Giles, i Keen, 685. 2 Jarman on Wills, 4th ed., 53, n. And though the grantor might have refused to perform this transfer if he had discovered the funda- mental error (Pollock on Contracts, 6th ed., 479), yet his voluntary completion of it, knowing that it might not be obligatory, could hardly be less binding than a gift
