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Resort is no more to paper and pleading8 ; but to used so much of the water of the spring as to leare powder and steel..

running an insufficient quantity for the use of the * *

plaintiff. This action was brought for the injury “So far is Law to be placed in the scale with War, as caused plaintiff by laying down the enlarged pipe, and it is to be the last Refuge, never to be used but when thereby diverting the increased quantity of water. all means else do fail. And then the Pleaders ought Plaintiff's grant to the railroad is general and into hold themselves to that. Who vindicates the Law, definite. It does not define or limit the place in which does no man wrong: But he that digresseth to impert the pipe was to be laid, nor specify what water was to inences, or the personal stains of men, is rather a fly be conducted. Hence, the surrounding circumstances, that buzges and sucks the sore, than a Champion for such as the existence of the spring, the chaunel over Truth, or a helmet to keep the head of justice whole.” plaintiff's land, the execution of the deed by Brown,

the topography of the country, and the acts of the

parties, both prior and subsequent to the grant, may LIMITATION OF EASEMENT BY ACTS OF

be considered for the purpose of learning the intenGRANTEE.

tion of the parties, and thus defining and limiting the NEW YORK COURT OF APPEALS - NOVEMBER 9, 1877.

easement granted. French v. Hays, 43 N. H. 30.

It is thus made manifest that it was intended by

plaintiff's grant to give the right to lay down pipe to ONTHANK V. LAKE SHORE AND MICHIGAN SOUTHERN

conduct water from the reservoir on Brown's land RAILROAD Co.

over his land to the Portland station, which would Plaintiff, by written instrument, gave defendant a right to otherwise flow in the natural channel above men

Jay and maintain across his land a pipe to convey water from a spring. The instrument did not specify the size

tioned. of the pipe or where it should be laid. Held, that by

After the grantee had once laid its pipe and thus laying pipe of a particular size across plaintiff's land defendant fixed the size, and was not entitled thereaf selected the place where it would exercise its easement ter to replace it by pipe of a larger size.

thus granted in general terms, what was before inPPEAL by defendant from an order of the General

definite and general became fixed and certain, and the A Term of the Supreme Court in the Fourth De

easement could not be exercised in any other place.

This is confessedly so in reference to rights of ways partment granting a new trial. The facts appear in the opinion.

granted in similar terms. Washb. ou Easem. 225, 240;

Wynkoop v. Burger, 12 Johns. 222. And the same A. P. Laning, for appellant.

rule of construction was applied to the right to lay an H. C. Kingsbury, for respondent.

aqueduct from a spring granted in general terms in EARL, J. In May, 1863, one Brown, whose farm ad Jennison v. Walker, 11 Gray, 423. In that case Bigejoined that of the plaintiff, executed to the Buffalo

low, J., said: “Where an easement in land is granted and State Line Railroad Company a deed, granting to

in general terms, without giving definite location and it and its successors and assigns forever, the right to

description to it, so that the part of the land over which enter upon his land“ for the purpose of building and the right is to be exercised cannot be definitely ascermaintaining a reservoir for water, and laying down

tained, the grantee does not thereby acquire a right to and maintaining an iron pipe or conductor to carry use the servient estate without limitation as to the the water from said reservoir to the water tanks at the place or mode in which the easement is to be enjoyed, Portland station, and also the right to build and main When the right granted has been once exercised in a tain blind and covered ditches to conduct the water to fixed and definite course, with the full acquiescence the said reservoir; the said iron pipe is to be laid at and consent of both parties, it cannot be changed at least two feet below the surface of the ground." The the pleasure of the grantee.” He says: “ This rule plaintiff, knowing of the contents of this deed, on the rests on the principle that when the terms of a grant same day executed to the same company a deed grant are general or indefinite so that its construction is uning to it, and its successors and assigns forever, the certain and ambiguous, the acts of the parties conright to enter upon his land "for the purpose of lay temporaneous with the grant giving a practical coning down and keeping in repair an iron pipe or con struction to it, shall be deemed to be a jus, exposition duc

arry water to the water-tank near the Port- | of the intent of the parties." land depot, which pipe are to be laid at least two feet | It is clear, then, that the right to lay the pipe under below the surface of the ground." The defendant has plaintiff's grant was fixed by the act of the grantee succeeded to the rights of the grantee in these deeds. and the acquiescence of the grantor to the place taken, At the date of the deeds there was a spring on Brown's and it cannot be exercised in any other place across land, the water of which flowed out of his land into | plaintiff's land. But why is not the right also fixed and across plaintiff's land in a well-defined natural for the same reasons as to the size of the pipe and the channel, which furnished a constant supply of water | quantity of water to be diverted ? I can perceive no for plaintiff's cattle and horses.

reason for confining the operation of this rule to the After the deeds were given the grantee excavated a mere place where the right is to be exercised. There reservoir upon Brown's land and collected therein the is the same reason for applying it to the entire right water of the spring and of the adjacent land, and it granted. In Bannon v. Angier, % Allen, 1:28, the same laid down two-inch iron pipe from the reservoir across learned judge again said: “Where a right of way or Brown's land and plaintiff's land to Portland station. other easement is granted by deed without fixed and The pipe thus laid down remained until 1871, and dur. defined limits, the practical location and use of such ing all that time there was enough surplus water flow way or easement by the grantee under his deed, acing in the old channel to supply all plaintiff's wants. | quiesced in by the grautor at the time of the grant In 1871 the defendant improved and repaired the re and for a long time subsequent thereto, operate as an servoir and the drains leading into it, and put down a | assignment of the right, and are deemed to be that four-inch pipe instead of the two-inch pipe, and thus which was intended to be conveyed by the deed, and

are the same in legal effect as if it had been fully de- ! 6. The signification of such message, when written scribed by the terms of the grant."

at full length, was understood by the plaintiffs to be, The language used in plaintiff's grant shows quite and is, as follows: To Dickson, Bennett & Co., Valclearly that it was not intented that after the grantee paraiso, a message dispatched from London, the 24th had laid down a pipe it should have the right to enter inst.: ship distilling barley by steamer at 36s. cost upon the land to lay down a larger pipe. The right and freight per quarter of 4201b., or 348. by sailing vesgranted was to enter upon the land and lay down a sel. Stop purchases of nitrate silver, 57%d per ounce. pipe two feet below the surface, and to keep that pipe | Remit from Dickson, Liverpool, through Havas, Monte in repair — not to enter upon the land at any time and Video. dig up the soil for the purpose of laying down a larger 7. Such message was not in fact sent to the plainpipe.

tiff's by the Liverpool firm, nor was it intended for Plaintiff's action is, therefore, maintainable, and the the plaintiffs. The misdelivery of the message was order of the General Term must be affirmed.

caused by the negligence of the defendants or their All concur, except ('hurch, Ch. J., not voting. Fol agents. ger and Miller, JJ., absent.

8. On receiving the telegram the plaintiffs supposed,

and were justified in supposing, that it contained the LIABILITY OF TELEGRAPH COMPANIES. instructions of their Liverpool firm, and the plaintiffs

thereupon proceeded to execute the order in the orENGLISH COURT OF APPEAL, NOVEMBER 3, 1877.

dinary course of business. DICKSON AND OTHERS V. REUTER'S TELEGRAPH COM

9. On the 15th February, 1875, the plaintiffs LiverPANY (LIMITED).

pool firm received a letter from their Valparaiso firm,

advising a large shipment of barley. Inquiries were The recipient of a telegram, misdelivered to him through the negligence of a telegraph company, cannot, in the

made, and the blunder of the defendants was disabsence of an express contract with the company, covered, and the plaintiffs' Liverpool firm lost no maintain an action against them to recover damages for a loss occasioned by his having acted on the tele

time in telegraphing to their Valparaiso firm to disgram.

continue the shipments; but before the telegram Plaintiffs carried on business as merchants at Valparaiso, and were a branch house of a firm at Liverpool. De.

reached them they had already completed several fendants, a telegraph company, through the negligence other purchases, which were forwarded to England. of their agent, misdelivered a telegraphic message to plaintiffs. The message purported to be from plaintiffs'

10. There were three shipments of barley under the Liverpool house, and to be a large order for barley; but supposed instructions -- 3,299 bags were shipped per in fact it was not from the Liverpool house, nor intended for plaintiffs. Plaintiffs executed the supposed

Illimani, S. S.: 2,773 bags per Cordillera, S. S.: and order, and, having suffered a heavy loss in consequence, 8,540 sacks per Zadok. claimed damages against defendants. On de nurrer to a statement of claim setting out the above facts, it was

11. In consequence of the fall of the market for barheld (affirming the decision of the Common Pleas Divis ley, the plaintiff's bave lost on the first shipment £687 ion), that plaintiffs were not entitled to maintain their action, as there was no contract between themselves

17s. 1d, on the second shipment £441 9s. 11d, and on and defendants, nor any duty upon defendants to trans the third shipment £1,481 17s. 8d. mit messages correctly.

The plaintiffs claimed £2,611 4s. 8d damages, with inAPPEAL from Common Pleas Division. The case

terest on that sum from the 24th May, 1870, until payA in the court below is reported 35 L. T. Rep. (N.

ment. S.) 842.

The defendants demurred to the plaintiffs' stateThe plaintiffs' statement of claim was as follows: ment of claim, on the ground that it showed no con

1. The plaintiffs are merchants carrying on business tract between the plaintiffs and the defendants, and at Valparaiso, under the style or firm of Dickson, Ben no breach thereof, and did not, independently of connett & Co., and were a branch house of the firm of tract, disclose any matter in respect of which any Dickson, Robinson & Co., of Liverpool.

action can be maintained by the plaintiffs against the 2. The defendants are a telegraph company, having defendants, etc. their chief offices in London, and agencies in Liver Joinder in demurrer. pool and in various parts of the world, including The Common Pleas Division upheld the demurver, South America. In December, 1874, the defendants

and the plaintiffs appealed. had an agenoy at Monte Video, but not at Valpa Herschell, Q. C. (Benjamin, Q. C., and W. H. Butler raiso.

with him), for the plaintiffs. There is here a breach 3. Previous to December, 1874, the plaintiffs' Liver of warranty, the defendants having warranted to the pool firm were in the habit of sending messages to the plaintiffs that they had been employed to deliver this · Valparaiso firm through the defendants' company, and | message. Duties are imposed upon the defendants as were instructed by the defendants to head such mes to the manner in which they carry on their business, sages by the registered cipher word “Felix,” indicat and they are responsible to those who may be injured ing that the messages were intended for the plaintiffs' by their negligence. They have represented to the Valparaiso firm. The plaintiff' Liverpool firm ac plaintiffs that they received a certain ressage, whereas, cordingly so headed their messages, and still continue in fact, such message never was received. There is a 80 to head them.

warranty by the defendants that they have been au5. On the 26th December, 1874, the plaintiffs re thorized to receive messages. In a less strong case ceived at Valparaiso a telegraphic message which had than this the American courts held that an action lies. been transmitted by the defendants from Monte Iu Playford v. The United Kingdom Electric Telegraph Video, in the following words and figures : “ Dickson Co., L. R., 4 Q. B. 706, there was a sender; here there Bemuett - Valparaiso --- London - 24 – ship - distill was none. The defendants warrant that they act as ing – barley - steamer – 36 — cost – freight - quarter agents. [BRAMWELL, J. A. The cases are not quite - 420 — pounds -- 34 – sailing - stop — nitrate- silver | analogous. In the present case the message was not - 5712 — remit. -- Dickson – Liverpool -- Havas – M. | for the man at all; in Playford y. The United KingVideo."

| dom Telegraph Co. there was a variation in the words

of the message.) They warrant that they have au- | hold, he is liable to the person whom he thus causes thority to send; perhaps not the accuracy of the mes- | to enter into such negotiations. But it does not apsage. In Collen v. Wright, 28 L. T. Rep. (N. S.) 267 ; 7 pear to be so in this case. Here there was no request E. & B. 301; and in Exchequer Chamber, 30 L. T. Rep. to any thing of any sort. The defendants simply de(N. S.) 209; 8 E. & B. 617, the defendant represented liver the message. There is no request by them to himself as agent, not being so in reality, and it was the plaintiffs to do any thing. This case is, therefore, held that an action lay against him; so that where a distinguishable from Collen v. Wright. The next point person represents himself to be an agent he warrants alleged by Mr. Herschell is negligence. Mr. Williams himself as such. Randall v. Trimen, 18 C. B. 786, is says that a duty must be shown before negligence can also in support of this proposition. A person who car be established. Duty can only arise out of contract ries on a business, the negligent conduct of which may or by law. If this duty arose by law then the law result in serious damage to the public who employ must be that an action will lie against a man for an him, renders himself liable if he is guilty of negli | innocent misrepresentation made through carelessgence. Here the defendants negligently carried on ness. But there is no such qualification, and, theretheir business. There was a negligent use of the fore, there is no action on the ground of negligence. cipher of the plaintiffs who have employed them from Mr. Herschell says that this is done in the course of time to time. Is there not an obligation from them to their ordinary business. Now, I see no difference bethe plaintiffs to use due care in the use of their cipher? tween an inaccuracy in the course of this business and Is there mot an implied undertaking to use such care? one in an ordinary matter. It was argued that the law May not the fact of the defendants being frequently must be in favor of the plaintiffs on account of the employed by us create a liability? There are many consequences. I think not. In the first place, one American cases on the question of the defendants' must look at general principles. If you say a man is liability. In The New York and Washington Printing liable for a negligent statement, however bona firie Tel. Co. v. Dryburgh, 35 Penn. St. 298, a telegraph com- made, a man must not speak to another without qualipany was held liable for misfeasance. There is a distinc fying every remark. A telegraph company is under tion between an erroneous statement, where no rela an obligation to the sender of messages, and its pattion exists between the parties, and an act done in the ural desire to get custom is its guarantee for the best . ordinary course of business. The principle is that, if efforts of accuracy. A telegraph company may say, it man carries on his business in such a manner that | "I do not represent this message as true; you can renegligence will, to his knowledge, cause an injury, the peat the message and see whether or no it is accurate." injured party may have his action. My case is stronger I see no similitude between the case of a carrier and than an erroneous message, for here there was no mes this case, as in the former case there is an employsage at all the defendants acted without instruc ment and an ownership, and even if the cases were tions, it was their own voluntary act. With reference analogous it is doubtful if an action would lie on the to agency, the principles upheld in Collen v. Wright, ground of misdelivery of the goods carried. The deubi sup., should be extended to this case.

fendants here merely say, “I send a message for you; Watkin Williams, Q. C. (with him H. D. Greene), for you can act upon it or not as you like, but we do not the defendants. A telegraph company cannot be re warrant its accuracy.". sponsible for a message they do not even understand. BRETT, L. J. I am of the same opinion. A teleIn paragraph 6 of the statement of claim it is said graph company merely undertakes to deliver messages that the message was understood by the plaintiffs, but a priori; therefore, their only contract is with the pernot a word about the defendants understanding it. son who employs them to send and deliver the mesThe defendants were mere conveyers. The first point sage. Here there is no contract with the plaintiffs, for plaintiffs was that there was here a warrant of au They have made an erroneous communication, but thority by the telegraph company on the part of the they did not know that it was so. If they have made sender to send and deliver a message. The second, of a misrepresentation of a fact, there is no action, befraudulent misrepresentation, was abandoned. The cause they did not make it frauduleutly. Collen v. third was the negligent performance of a business, Wright has been said to make an exception to the genthe carrying on of which created a duty to the public eral rule, but that case, I think, is founded on the inat large. As to the first point, it is necessary to estab- dependent rule, that if you invite a person, expressly lish a relationship of contract between the parties. A or by contract, to negotiate with you on an assertion telegraph company are merely mechanical seuders, | that you fulfill a certain character you warrant that and do not even understand what they send. As to you do fulfill that character. But Collen r. Wright the third point, negligence is alleged; but negligence does not say that misrepresentation alone would be is the breach of a duty. But here no relationship sufficient to constitute the liability; there must be is shown between the parties to create a duty, and misrepresentation, coupled with the contract, entered to ascertain what is negligence you must first show into on an assertion that one has authority to act in the duty.

a certain character. The telegraph company, as a mere BRAMWELL, L. J. I am of opinion that this judg messeuger, did not invite the plaintiffs to act with ment must be affirmed. The general rule is undoubted them in any character; and this case is not within the tbat if a statement is untruly made, even though it is principle established in Collen v. Wright. As to legacted upon and damage ensues, no action will lie une ligence, there can be no negligeuce unless there is a less the statement was made fraudulently. Mr. Her- | duty, and here no duty has been established, I canschell says that Collen v. Wriyht, ubi sup., shows an not, therefore, see any liability on behalf of the deexception to the general rule, and that this case comes fendants. under it. Collen v. Wright establishes that if a per COTTON, L. J. I also am of the opinion that the son makes an assertion that he has authority to act, judgment of the court below must be upheld. The and so causes another to enter into negotiations with telegraph company are simply conveyers of messages, a person whose authority he represeuts himself to | They did not say, “we are agents,” but “here is a message, act on it or not as you like.” They have,

CONTRACT. therefore, no obligation, and no contract as in Collen Ratification of void contract: agency: effect of v. Wright. With regard to Mr. Herschell's argument receipt.--Plaintiff, by a verbal contract, sold defendant, as to negligence, I think that there is no guarantee by a railroad company, 2,000 cords of wood at a specified a telegraph company as to the accuracy of the sender. price. The wood was to be delivered at defeudant's If so, where could you stop? From the nature of their yard, and was to be subject to inspection and measurebusiness this is impossible. They cannot say nor guar ment by defendant, and a portion of the wood was to antee who the sender may be, nor what is the nature be delivered more than a year from the time the conof the message.

act was made. A part of the wood was delivered Judgment affirmed. and accepted by W., defendant's agent, 'for that pur

pose, and defendant paid for it. Thereafter, defend

ant leased its railroad to the D. & II, Co., who took COURT OF APPEALS ABSTRACT.

charge of the same and retained the same employees, ACTION.

among whom was the agent mentioned. Plaintiff had

no knowledge of the lease. Subsequently, he delivered 1. To set aside lien of assessment: when it will not lie. the remainder of the wood at the place agreed upon, - In an action to set aside the lien of an assessment and the same was measured and accepted by the for opening a street in Brooklyn as a cloud upon the agent referred to. Held, (1) that although the contract title of plaintiff's land, the complaint alleged that was originally void under the statute of frauds, the the signatures of the property owners appended to the

delivery and acceptance of the wood by defendant petition required, in order to render the opening and bound it to pay the contract price therefor; (2) that assessment valid, were taken from another document.

the acceptance by the agent of the remainder of the Held, that as the petition itself, on its face, appeared wood bound defendant. Held, furtber, that a receipt regular and valid, and extrinsic evidence would be re

by plaintiff, of part payment for the wood, after it had quired to show its invalidity, the complaint 'stated

been delivered and accepted, from the D. & H. Comenough facts to constitute a cause of action. Judg- pany, did not release defendant, and this would not ment of the General Term reversed and that of Spe-| be affected by the form of a receipt for the money paid, cial Term affirmed. Boyle v. City of Brooklyn. Opin

signed by plaintiff at the time of such part payment. ion by Rapallo, J.

Judgment below affirmed. Barkley v. Rensselaer & 2. Slating bad ground of complaint does not invali

Saratoga R. R. Co. Opinion per Curiam. date complaint as to good ground.-The complaint also [Decided Nov. 13, 1877.] set forth as another ground an objection to the validity

HUSBAND AND WIFE. of the lien of the assessment which it was claimed would, if well founded, appear in proceedings to en

Ante-nuptial contract: presumption as to: when force the lieu. lleld, that that circumstance should

deemed invalid. - Every presumption is against the not deprive plaintiff of his rights under the first ground

validity of an ante-nuptial contract when it is asked of action, but, if true, the statement setting it forth

to be enforced against the wife, and the burden of might be treated as surplusage. Ib.

proof is cast upon the husband, or those who represent [Decided Oct. 2, 1877. Reported below, 8 Hun, 32.]

him, in order to uphold and enforce the same as a valid

and subsisting agreement. The relation between parCOMMON CARRIER.

ties intending to marry is confidential, and a court of 1. Stipulations against liability in contract: general

equity will interpose its authority to set aside an in

strument executed under such circumstances when words do not include negligence of carrier. -- Plaintiff

there is evidence showing fraud or even when it shipped animals by railroad under a contract, where

appears that undue influence has been exercised when by he agreed to release and discharge the railroad company “from all claims, demands and liabilities of every

one party is so situated as to exercise a controlling inkiud whatsoever for or on account of, or connected

fluence over the will, conduct, and interests of another.

Accordingly, where a woman intending to marry with, any damage or injury to or the loss of said stock, or any portion thereof, from whatsoever cause arising."

signed a contract whereby she released all her continHeld, that the contract did not release the company

gent rights as widow in the estate of her proposed from liability for loss resulting from the negligence of

husband, in consideration of $500, and she believed

at the time that the contract gave her much more, the company or its servants. Where general words, in such a contract, may operate without including

which belief the husband encouraged, held, that the

contract was invalid, and she was entitled to a distribthe negligence of the carrier or his servants, it will not be presumed that it was intended to include

utive share of her husband's estate on his decease. it. (Nec Jersey S. N. Co. v. Merch. Bank, 6 How.

(Sears v. Shafer, 6 N. Y. 268; Nesvit v. Lockman, 34 id. [U. S.] 314; Alexander v. Greene, Hill, 533 ;

167; Tarbell v. Tarbell, 10 Allen, 278; Fuy v. Rickman, Wells v. Steum Nuv. Co., 8 N. Y. 375; Steinweg v.

1 N. C. 275; Woodward v. Woodward, 5 Sueed, 49; - 43 id. 1:23; Magnew v. Dinsmore, 56 id. 168; Lock

Kline v. Kline, 57 Peun. St. 120; Kline's Estate, 64 id. wood v. Ruilroad Co., 17 Wall. 357; Clark v. Railroad

1:22.) Judgment below affirmed. Pierce v. Pierce. Co., 14 N. Y. 573.) Judgment of General Term re

Opinion by Miller, J. versed. Mynard v. Syracuse, Binghamton and New

[Decided Nov. 13, 1877.] York Railroad Co. Opinion by Church, C. J.

MARRIED WOMAN. 2. Liability as to animals carried.- A carrier is ex- 1. Contracts in behalf of, by agent: limitation of aucused from liability for loss caused by the inherent thority. - The husband of defendant, who did not tendencies or qualities of animals; but beyond this the carry on any business in her own name, had authority common-law liabilities exist against him the same as “to make, sign, indorse and accept all checks, notes, against the carrier of any other kind of property, Ib. drafts and bills of excbange for" the defendant aud in [Decided Nov. 13, 1877. Reported below, 7 Hun, 399.] | her name, and this power was deposited in the bank where she kept an account. Held, not to authorize and the agent had no authority to receive the him to bind her by a post-dated check given for a loan premiums, and a tender of them to him did not avail to him by plaintiff. Judgment below reversed. Nash to save the rights of S. under the policy. (Conn. v. V. Mitchell. Opinion by Allen, J.

Penn., Peters' C. C. 525; Buchanan v.Curry, 19 Johns. 2. What is not carrying on a separate business.-The | 141; Fulz v. Storer, 22 Wall. 206; Dennison v. Imbrie, management by a married woman of her landed prop- | 3 Wash. C. C. 403; Ward v. Smith, 7 Wall. 447; Broren erty, the receipt of the rents and income, and dispos- | v. Hiatts, 15 id. 177; Montgomery v. United States, id. ing of them, is not a trade or business within the | 395.) Judgment of Circuit Court, E. D. Virginia, remeaning of the statute enabling married women to versed. New York Life Insurunce Co., plaintiff in carry on a trade or business. That statute has respect error, v. Davis. Opinion by Bradley, J. to business pursuits, mechanical, manufacturing or

PUBLIC OFFICER. commercial. Ib.

Government not responsible for laches of.-The fact 3. The disabilities and liabilities of married women:

that a goverment officer, in violation of his duty, disburden of proof.–The disabilities of a married woman

penses with the requirement of the law, does not bind are general and exist at common law; the capabilities

the government or release the liability to or of a surety are created by statute, and are five in number, and

who suffers loss by reason of the dispensation of such exceptional. It is for him who asserts the validity of

requirement. The government is not responsible for a contract of a feme covert by evidence to bring it

the laches or the wrongful acts of its officers. (Gibbons within the exceptions. Ib.

v. United States, 8 Wall. 275: United States v. Kirk[Decided Nov. 13, 1877. Reported below, 8 Hun, 471.)

patrick, 9 Wheat. 735; United States v. Vanzandt, 11

id. 187; United States v. Nicholl, 12 id. 509; Jones v. UNITED STATES SUPREME COURT ABSTRACT. United States, 18 Wall. 663.) Judgment of Circuit

Court, N. D. Ohio, affirmed.
CONSTITUTIONAL LAW.

Hart, plaintiff in error,

v. United States. Opinion by Waite, C. J. , 1. Law impairing obligation of contract: change of

SURETYSHIP. remedy.-In modes of proceeding and forms to enforce

Misappropriation of moneys by public officer: when a contract, a State legislature has the control and may enlarge, limit or alter them, provided that it does not

principal need not be proceeded against. – A register of

the land office received fees under a provision of the deny a remedy or so embarrass it with conditions and

act of Congress, March 3, 1853, which requires that restrictions as seriously to impair the value of the

“the surplus which shall remain" of such fees, beright. (Sturgess v. Crowninshield, 4 Wheat. 122; Mason v. llaile, 12 id. 378; Bronson v. Kenzie, 1 How. 311;

yond the compensation to which the register is entiVun Hoffman v. City of Iowa, 4 Wall. 535; Bruce v.

tled, “shall be paid into the Treasury of the United

States as other moneys." The register was not entiSchuyler, 9 Ill. 253; Evans V. Montgomery, 4 Watts &

tled to hold the surplus in his own right. (United S. 218; Read v. Frankfort Bank, 23 Me. 318.) Judg

States v. Babbit, 1 Black, 55.) Held, that the neglect ment of Supreme Court of Tennessee affirmed. State of Tennessee ex rel. Bloomstien, plaintiff in error, v.

and refusal to pay over to the United States the

surplus beyond the compensation to which he was Sneed. Opinion by Hunt, J.

entitled by law was a breach of the condition 2. Substitution of one remedy for another not a viola

of his official bond, both as respected himself and the tion of the constitutional provision. – Plaintiff held

sureties in the bond, and that the United States were bank bills which, under the law as he claimed, were

under no necessity to proceed against the principal in payable for taxes to the State. In 1872, he tendered

the bond by an action on the case for money had and them to the collector for taxes, and they were refused.

received. Judgment of the Circuit Court, Iowa, reAt that time he had a right to enforce his claim by

versed. United States, plaintiff in error, v. Babbit. mandamus, but a statute passed by the State legislature, in 1873, took away that remedy and provided that

Opinion by Swayne, J.

TRUSTS. he might pay his tax under protest aud bring action

In favor of corporation not in esse : practice: trusts therefor against the collector, and if successful the comptroller should reimburse him out of the State

void for uncertainty : perpetuities. — A testator in the treasury. Held, that a sufficient remedy was provided

District of Columbia devised lands to trustees, or the to enforce plaintiff's claim, and the statute was not in

survivor of them, and the heirs, executors and adminvalid. Ib.

istrators and assignees of such survivor in trust, to LIFE INSURANCE.

hold for a site for a “hospital for foundlings," to be Effect of war upon contract: tender of premiums to agent erected by an association to be incorporated by an act in hostile territory does not prevent forfeiture.-S., resid of Cougress to be passed, such corporation to be aping at Petersburg, Virginia, before the war, procured proved by the trustees, their survivor or successors, and a policy of insurance upon his life in the N. Iusurance the land to be held until a corporatiou should be created ('ompany, located in New York. The policy was con by act of Congress which should be approved by the ditioned to be void if the premiums were not paid trustees. Held, (1) that the validity of charitable enwhen due. The premiums were, up to the commence dowments and the jurisdiction of courts of equity ment of the war, paid to an agent of the company who never depended on the statute of 43d Eliz., chap. 4. resided at Petersburg, who was authorized to receive (McGill v. Brown, Brightly, 346; Burr's Executors v. them and who was furnished receipts for such a pur Smith, ñ Vt. 241; Fountain v. Ravinal, 17 How. 349.) pose. After the war commenced, s, tendered the (2) That the devise was not void for uncertainty. (Perry premiums to the agent, who refused to receive them, ou Trusts, $ 699; 2 Story's Eq. Jur., $ 1,164, note, $ 1,190, and tender was also made after the close of the war to note;) nor (3) was it void as creating a perpetuity. him with like result. Held, (1) that the war suspended (Croxull v. Sherrard, 5 Wall. 268; Franklin v. Armfield, the contract of agency between the company and its | 2 Sneed, 305; Dartmouth College v. Woodward, 4 Wheat. agent, in the absence of an agreement to the contrary, 641; Perrin v. Carey, 24 How. 195; Stanley v. Coll, 5

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