Imágenes de páginas


ground of paramount necessity. The law does not resolution, and he does not claim that he was. His contemplate such an exigency, and therefore does not claim is that his property has been unlawfully deprovide for it. If it did it would no longer be the un- stroyed. If it was not in fact a nuisance, then no defined law of necessity. Nelson, J., in People v. Cor- ground for its destruction existed, and the plaintiff has poration of Albany, 11 Wend. 540.

been unlawfully deprived of his property. It would Nuisances may be abated by an individual; but they be strange indeed if he cannot, under such circummust in fact exist. The determination of the individ- stances, recover a just and adequate compensation. ual that a nuisance exists does not make it so; and if Rounds v. Mansfield, 38 Me. 586; Green v. Underwood, he destroys property on the ground it is a nuis- before cited. We are not called on to determine from ance he is responsible, unless it is established that the whom he may recover, nor must we be understood as property destroyed constituted a nuisance. This pre- intimating whether the house was or was not a nuiseise power, and no more, is conferred by the statute on ance. This was a question for the jury under proper cities and towns. In Wood Nuis., 740, it is said: instructions by the court. We think the court erred * If the authorities of a city abate a nuisance under in instructing the jury as above stated, and also erred authority of an ordinance of the city, they are subject in refusing to instruct in substance as asked in some to the same perils and liabilities as an individual, if of the instructions presented by counsel of plaintiff. the thing in fact is not a nuisance." See also Clark v.

Reversed. Mayor, 13 Barb. 32; Welch v. Stowell, 2 Doug. (Mich.) 332; Underwood v. Green, 42 N. Y. 140; Yates v. Mil

CONTEMPT-COURT MAY REVOKE ORDER. waukee, 10 Wall. 497; Haskell v. New Bedford, 108 Mass. 208; Wreford v. People, 14 Mich. 41; Everett v. Council Bluffs, 46 Iowa, 66; City of Salem v. Eastern CIRCUIT COURT, DISTRICT OF MASSACHUSETTS. R. Co., 98 Mass. 431. The last case was an action

APRIL 2, 1884. brought to recover the expense of removing an alleged nuisance caused by the defendant, who had no oppor

HENDRYX V. FITZPATRICK.* tunity to be heard as to the question whether a nuis

An order committing a defendant for contempt in refusing ance in fact existed; and it was held that the defend

to pay a sum of money is civil, and not criminal, in its ant was not concluded by the findings and adjudica

nature, and the court which committed him is at liberty to tions of the corporate authorities, but it could contest

release him again in case he shows himself unable to comall the facts upon which its liability depended. Cities ply with the requirements of the court. and towns may undoubtedly define, and by ordinance declare, what shall constitute a nuisance, and their

N the Matter of Contempt of Court. legislative discretion in this respect cannot be controlled. If a puisance is created or erected after the T. W. Porter and J. McC. Perkins, for complainpassage of the ordinance, and it is then provided that it

ants. may be abated, we are not prepared to say this may not be done, or the person erecting the nuisance pun

A. H. Briggs, for defendant. ished as prescribed in the ordinance. Ordinarily, be- Before LOWELL and NELSON, JJ. fore property is destroyed on the ground that it is a

LOWELL, J. In this case the defendapt was waisance, the owner should have the opportunity to

joined from infringing a patent, pendente lite, because, be heard in some manner in accordance with the usual

though the court had serious doubts of its validity, the forms prescribed by law; and this is true where the

defendant bad himself sold the patent to the plaintproperty has been summarily destroyed, and he seeks

iffs for a considerable sum of money, and it was to recover damages sustained by its destruction.

thought no more than justice that he should refrain 2. Counsel for the defendants insist that the only

from violating his own implied warranty until the remedy the plaintiff had was to test the validity of the

final hearing. Afterward proceedings for contempt action of the town council by certiorari, and cites State

for a violation of the injunction were prosecuted by v. Roney, 37 Iowa, 30; Iske v. City of Newton, 54 id. 586; 7 N. W. Rep.13; Stubenranch v.Neyensch, 54 Iowa,

the plaintiffs, and after evidence taken and a hearing,

the defendant was ordered to pay the fees of the mas567; 7 N. W. Rep. 1. These cases are clearly distin

ter by a certain day, the costs of the proceedings, and guishable. It may be conceded that the plaintiff could

certain profits assessed by the master, by certain other have thus proceeded, but he was not bound to do so,

days, and in default of payment to be committed. and after the destruction of his property such a pro

These last two sums, when paid in, were to be paid out ceeding would have been useless. It may be the plaint

to the plaintiffs. The defendant failed to make the iff had two remedies--one by certiorari, and the other

last two payments, and was committed to prison. the one adopted in this case. Both these remedies are

After he had been in confinement for about two weeks legal, and not equitable, and he could adopt either,

the District judge,with my approval, though I was uu3. Counsel further claim that the members of the

able to sit in the case, permitted the defendant to go council are not individually liable, because what they

before the master and prove, if he could, in proceeddid was done in a judicial capacity; that is, that the de

ings like those under the poor-debtor law of Massachutermination of the question as to the existence of the

setts, that he had no property which he could apply to nuisance was of a judicial character. In support of this

the payment of his debts. The plaintiffs were duly proposition Walker v. Hallock, 32 Ind. 239; Baker v.

notified of the hearing before the master and did not State, 27 id. 485; Harvey v. Dewoody, 18 Ark. 252; No

attend, and the master admitted the defendant to lan v. Mayor, 4 Yerg. 163, are cited.

take the poor-debtor's oath; and thereupon the The first two cases grew out of the same facts.

court discharged him upon his own recoguizance. The nuisance complained of was the erection or con

The plaintiffs now move that the defendaut may be tinuance of a market-house, and it was sought to make the members of the city council individually responsi· that every order since made in the cause is ultra vires

recommitted under the original order. They argue ble therefor. This is a very different question from the

and void, because the first order was a final decree in one before us. In the Arkansas case it was determined that a nuisance in fact existed, and therefore responsi- term; and because the defendant could ouly be dis

a criminal case, and could uot be varied after the bility for its abatement did not attach. The case last

charged from arrest by the pardou of the president. cited has no applicatiou whatever to the case at bar. The plaintiff was not damaged by the passage of the

*19 Fed. Rep. 810.


It would be a sufficient answer to this argument, that County Court, sitting in bankruptcy, James, L. J., if the order was a criminal one, having the conse- said: “The order, on the face of it, is wrong, for it is quences contended for, the fine should have been made an absolute order of commitment for contempt of payable to the United States, and the plaintiffs would court for non-payment of money. This is a penal senhave no concern with it; but we will explain why all tence. The court of chancery never made an order in the orders are, in our opinion, proper. The original this form." And again: “The order of commitment order was an interlocutory civil order, for the benefit was such as had never been made in the court of chanof the plaintiffs; and the commitment was for failure cery, and was justly characterized by the chief judge to pay the money, not for the original contempt. as novel and surprising." Ex parte Hooson, L. R., 8 While therefore the imprisonment may not have been Ch. 231. This distinction is preserved in our Revised strictly and technically within our poor-debtor law Statutes. The courts have power to punish for con(Rev. Stat., $ 991), which however we think it was, yet tempt (8 725), but all forms and modes of proceeding it should, at all events, be governed by similar rules. which are usual in equity may be followed in cases in It was made in this way, because the master found equity. Section 913. that the contempt was not willful, and I thought that By virtue of section 725 the District Court may pun no punishinent was necessary. The process of con- ish contempts. Like power is given the District judge tempt bas two distinct functions, one, criminal, to when sitting in chambers in bankruptcy, by section punish disobedience, the other, civil and remedial, to 4973; and the cognate but distinct power of enforcing enforce a decree of the court and indemnify private his decrees " by process of contempt, and other 'remepersons. In patent causes it has been usual to com- dial' process,' is recognized by section 4975. See In bine the two, and to order punishment if it is thought re Chiles, 22 Wall. 157. proper; or indemnity to the plaintiff, if that is all that Some of the older cases hold that in contempt in justice requires; or both. Re Mullee, 7 Blatchf. 23; civil cases at common law, the proceedings, after the Doubleday v. Sherman, 8 id. 45; Schillinger v. Gunther, order of attachment, should be on the crown side of 14 id. 152; Phillips v. Detroit, 3 Ban. & A. 150; Dunks the court; that is in the name of the sovereign. The v. Gray, 3 Fed. Rep. 862; Searles v. Worden, 13 id. 716; King v. Sheriff of Middlesex, 3 T. R. 133; Same v. Matthews v. Spangenberg, 15 id. 813.

Same, 7 id. 439: Folger v. Hoogland, 5 Johns. 235. This We are aware that it was at one time the opinion of is still the better practice, or at least a good practice, Judge Blatchford that a sum of money ordered to be if panishment is asked for. Cartwright's case, 114 Mass. paid to a plaintiff, in a cause of this kind, was a crimi- 230; Durant v. Suprs., 1 Woolw. 377; United States et nal fine, which could only be remitted by a pardon; rel. v. A., T. & S. F. R. Co.,16 Fed. Rep. 853. If this was but we are of opinion that such a fine for the benefit ever the rule of chancery, it has long since ceased to of a private person cannot be remitted by the presi- be so, when the sole purpose of the attachment'is to dent, and is a debt of a civil nature; and that Judge enforce a decree or order, such for instance, as to sign Blatchford has so treated it in the latest case which an answer, to make a conveyance, to pay money, etc. has come before him. His first opinion is stated in All such orders may be waived or condoned by the Mullee's case, 7 Blatchf. 23, and Fischer v. Hayes, 6 private person interested in them, and are civil and Fed. Rep. 63; but when the latter case came before the remedial. Ex parte Hooson, supra; Ex parte Eicke, 1 Supreme Court, they expressed a significant doubt Glyn. & J. 261; Wall v. Atkinson, 2 Rose, 196; Wyllie whether the order to pay money for the use of the v. Green, 1 De Gex & J. 410; Buffum's case, 13 N. H. plaintiff was not an interlocutory decree in a civil 14; People v. Craft, 7 Paige, 325; Jackson v. Billings, 1 cause (Hayes v. Fischer, 102 U. S. 121), and when the Caines, 252; Anon., 2 P. Wms. 481; Const v. Ebers, 1 caso came back, Judge Blatchford admitted the de- Mad. 530; Smith v. Blofield, 2 Ves. & B. 100; Broron v. fendant to bail (Fischer v. Hayes, 7 Fed. Rep. 96), Andrews, 1 Barb. 227 ; Ex parte Muirhead, 2 Ch. Div. which he could not have done if the judgment were 22; Lees v. Newton, L. R., 1 C. P. 658; Re Rawlins, 12 criminal in its nature. The doubt of the Supreme Law T. (N. S.) 57. Court might well have been eren more strongly ex- In patent cases it has been usual to embrace in one pressed. An order upon a defaulting trustee, assignee proceeding the public and the private remedy-to in bankruptcy, or other person subject to account, to punish the defendant if found worthy of punishment, pay money into court, is civil, and may be waived by and at the same time, or as an alternative, to assess the party adversely interested, and is a debt to which damages and costs for the benefit of the plaintiff, as is a bankrupt law, discharging the debt, and an insol- seen by the cases cited in the beginning of this opinvent law, discharging the person, are applicable. See ion. A course analogous to this has been said, obiter, Baker's case, 2 Strange, 1152; Ex parte Parker, 3 Ves. to be proper, by Miller, J., in Re Chiles, 22 Wall. 157, 554, and the decisions hereinafter cited.

168. “The exercise of this power has a twofold asIn McWilliams' case, 1 Schoales & L. 169, a defend. pect, namely, first, the proper punishment of the ant in contempt for not paying a legacy into the court guilty party for his disrespect of the court and its of chancery inobedience to its order was attached order; and the second, to compel his performance of while attending the commissioner to be examined as a some act or duty required of him by the court which bankrupt. His arrest was lawful, if the contempt was he refuses to perform," citing Stimpson P. Putnam, 41 a criminal offense. That very learned chancery law- Vt. 238, where a defendant was, at the same time, yer, Lord Redesdale, said that it was merely a mode fined $50 for the benefit of the State, and $1,170 and of enforcing a debt; that if it were not so he had no interest and costs for that of the party injured by right to make the original order; that the substance breach of an injunction. The chancellor in that case and uot the form of the proceeding must govern, and said: “This proceeding for contempt is instituted its substance was not criminal. The petitioner was not only to punish the guilty party, but also, and discharged. The same point was decided iu the same perhaps chiefly, to cause restitution to the party inway in Ex parte Jeyes, 3 Dea. & Ch. 764; and Ex parte jured.” Such we peat, has been the practice in patBury, 3 Mont. D. & D. 309.

ent causes. It is used in other cases, as in the familThe remark of the lord chancellor in Mc Williams' iar one of a witness neglecting to answer a summons, case, that he had no right to make an order of this sort who may be fined for his disobedience, and also be re. for the benefit of a private person, excepting as a civil quired to testify. remedy, is bighly pertinent to this case.

If the proceedings should be criminal in form it Where a person had been committed to prison for would make no difference. A criminal sentence, for nine months for contempt in not paying money into a the benefit of a private person, is to be treated as civil

to all intents and purposes. It is beyond the king's the other because the defendant had been discharged pardon, and within the equitable jurisdiction of the as an insolvent. In the former of these cases, it was court at all times. 4 Bl. Com. 285. At this place the said by Pashley, arguendo, that the courts had exerauthor, speaking of disobedience to any rule or cised the power to discharge a defendant in such a order of court, of the sort we are considering, case, on account of poverty, as early as 29 Edw. I. says:

It was admitted, in argument, in the case before us, ** Indeed the attachment for most part of this spe- that the court would not have been justified iu imposcies of contempts, and especially for non-payment of ing a pecuniary fine upon the defendant if he had costs and non-performance of awards, is to be looked proved his poverty before the order was made, but that upon rather as a civil execution for the benefit of the afterward it was too late. We are of opinion that no such injured party, though carried on in the shape of a distinction can be maintained, but that the defendant criminal process for a coutempt of the authority of the should be released from imprisonment in such a case, court. And therefore it hath been held that such con- though his evidence is produced while the order is in tempts, and the process thereon, being properly the process of enforcement against him. civil remedy of an individual for a private injury, are Petition denied. not released or affected by the general act of pardon." Where a defendant had been convicted of an offense

UNITED STATES SUPREME COURT ABagainst the laws prohibiting lotteries, and had been

STRACT. sentenced to a term of imprisonment, which had expired, and to pay costs for the use of the prosecutor, MUNICIPAL CORPORATION--BONDS-POWER TO ISSUE and had not paid them, he was discharged from cus- UNDER CODE OF TENNESSEE-BONA FIDE HOLDER.tody under the lord's act, which was an early insol. Mere political bodies, constituted as counties, are for vent law, like our poor-debtor laws, so far as the dis- the purpose of local police and administration, and charge of the person is concerned. Rex v. Stokes, having the power of levying taxes to defray all public Cowp. 136.

charges created, whether they are or are not formally Aston, J., after saying that an attachment is an exe- invested with corporate capacity, have no power or cution for a civil debt, and that the public offense had authority to make and utter commercial paper of any been purged by the imprisonment, added: “This kind, unless such power is expressly conferred upon stage of the cause therefore is merely of a civil nature, them by law, or clearly implied from some other power and a matter solely between party and party, uncon- expressly given, which cannot be fairly exercised withnected with the offense itself;" that it comes within out it. Our views on this subject were distinctly exthe insolvent debtor's act: “ If not, the consequence pressed in the case of Police Jury v. Britton, 15 Wall. must be imprisonment for life; for a general pardon 566, where, speaking of the power of local political bodwould not extend to him;" that is, would not release ies to issue commercial paper, we said: “It seems him from costs due a private person, or from impris- to us to be a power quite distinct from that of inonment on account of them, “as was agreed in Rex v. curring indebtedness for improvements actually auStokes, 23 Geo. II.” So where a penalty was inflicted thorized and undertaken, the justness and validity of by a criminal proceeding, but for the benefit of a pri- which may always be inquired into. It is a power vate person, and an attachment was issued for want of which ought not to be implied from the mere authority a sufficient distress, Buller, J., said that the proceed to make such improvements. It is one thing for county ing was like a civil action, and that Ex parte Whit- or parish trustees to have the power to incur obligachurch, 1 Atk. 54, where attachment for not perform-tions for work actually done in behalf of the county or ing an award was held to be criminal, was no longer parish, and to give proper vouchers therefor, and a tolaw. It was held therefore that the defendant could tally different thing to have the power of issuing unnot be attached on Sunday. The King v. Myers, 1 impeachable paper obligations which may be multiT. R. 265. We do not mean to be understood that plied to an indefinite extent. If it be once conceded the court has a general discretion to annul orders that the trustees or other local representatives of passed for the benefit of a party to the suit; but that townships, counties and parishes have the implied where inability is shown to comply with the order, as power to issue coupon bonds, payable at a future day, for instance, insanity, if the decree requires an act to which may be valid and binding obligations in the be done, or poverty, if the decree is for the payment of hands of innocent purchasers, there will be no end to money, it is according to the course of the court, and the frauds that will be perpetrated. We do not mean of all courts, to discharge the imprisonment, of which to be understood that it requires in all cases express the end is proved to be unattainable. See besides the authority for such bodies to issue negotiable paper. cases already cited, Wall v. Court of Wardens, 1 Bay, The power has frequently been implied from other ex434; Re Sweatman, 1 Cow. 144; Kane v. Haywood, 66 N. press powers granted. Thus it has been held that the C. 1; Galland v. Galland, 44 Cal. 478; Pinckard v. power to borrow money implies the power to issue the Pinckard, 23 Ga. 286.

ordinary securities for its repayment, whether in the Where an attorney of any court fails to pay over form of notes or bonds payable in the future." Pp. money to his client, the court may, after due proceed- | 571, 572. In Mayor v. Ray, 19 Wall. 468, the following ings, commit him for a contempt. This was formerly remarks were made, which were quoted with approval considered to be crimiual, and is fully explained in 2 in the subsequent case of Wall v. County of Monroe, Hawk. P. C. 218 et seq. But it has long since been set- 103 U. S. 78: “ Vouchers for money due, certificates of tled that it is of a civil character. Ex parte Culliford, indebtedness for services rendered, or for property fur8 Barn. & C. 220; Rex v. Edwards, 9 id. 652. The lord nished for the use of the city, orders or drafts drawn chief justice in the latter case said that it had by one city officer upon another, or any other device "always" been held that attachments for non- of the kind, used for liquidating the amounts legitipayment of money were in the nature of civil pro- | mately due to public creditors, are of course necessary cess.

instruments for carrying on the machinery of mupioi. In Reg. v. Thornton, 4 Exch. 820, and The Queen v. pal administration, and for anticipating the collection Hills, 2 E1. & BI. 175, costs in a criminal case were in of taxes. But to invest such documents with the charquestion, and the defendant was discharged-in one, acter and incidents of commercial paper, so as to renbecause the prosecutor had proved for the amount in der them in the bands of bona fide holders absolute obbankruptcy, and thus waived the attachment, and in ligations to pay, however irregular or fraudulently issued, is an abuse of their true character and purpose." raise the requisite funds was given. Under the Code And again: “Every holder of a city order or certifi- of Tennessee contracts may of course be made for the cate knows, that to be valid and genuine at all, it must erection and repair of public buildings, and the power have been issued as a voucher for city indebtedness. to issue vouchers for payment is necessarily implied: It could not be lawfully issued for auy other purpose. but no power is given to issue bonds or other commerHe must take it therefore subject to the risk that it cial paper having the privileges and exemptions achas been lawfully and properly issued. His claim to corded to that class of commercial securities. No such be a bona fide holder will always be subject to this power is expressly given, and in our judgment no such qualification. The face of the paper itself is notice to power is necessarily implied. Claiborne County v. him that its validity depends upon the irregularity of Brooks. Opinion by Bradley, J. its issue. The officers of the city have no authority to [Decided April 21, 1884.) issue it for any illegal or improper purpose, and their

WRIT OF ERROR-LIES ONLY FROM FINAL JUDGMENT acts cannot create an estoppel against the city itself,

-PRESUMPTION--REHEARING--PRACTICE.--In Brockett its tax payers or people. Persons receiving it from

v. Brockett, 2 How. 238, it was decided that a petition them know whether it is issued, and whether they re

for rehearing, presented in due season and entertained ceive it for a proper purpose and a proper considera

by the court, prevented the original judgmeut from tion. Of course they are affected by the absence of

taking effect as a final judgment, for the purposes of these essential ingredients; and all subsequent holders take cum onere, and are affected by the same defect."

an appeal or writ of error, until the petition was dis. The counsel for the defendant in error relies strongly posed of. The record in this case does not show in

express terms when the motion for a rebearing was on the cases of Lynde v. County of Winnebago, 16

made, but it was entertained by the court and decided Wall. 6, decided by this court, and State ex rel. Ross

on its merits. The presumption is therefore, in the V. Anderson County, 8 Baxter, 249, decided by the

absence of any thing to the contrary, that it was filed Supreme Court of Tennessee, as well as upon various

in time to give the court control of the judgment decisions of other State courts, particularly Williams

which had been entered, and jurisdiction to enforce port v. Commonwealth, 84 Penn. St. 487; Mills v.

any order that might be made. This presumption has Gleason, 11 Wis. 470; Bank of Chillicothe v. Chilli

not been overcome. The writ of error as issued is on cothe, 7 Ohio, pt. 2, p. 31. Conceding that views differ

its face for the review of the final judgment, not of ent from those which we have expressed are entertained by some of the State courts, and that they may

the order refusing a rehearing. The judgment is suffi

ciently described for the purposes of identification. We be controlling in the States where they are thus enter

are of opinion therefore that the judgment as entered tained, we are more especially concerned to know what

is properly before us for consideration. It was exis held to be the law in Tennessee, as well as what may

pressly ruled in Brockett v. Brockett, which has been have been held in the decisions of this court in former cases. In the case in 8 Baxter, supra, the Supreme

followed in many cases since, that if a petition for re

hearing is presented in season and entertained by Court of Tennessee, it is true, expressed an opinion

the court, the time limited for an appeal or writ of er. that authority to issue the bonds was implied from

ror does not begin to run until the petition is disposed the power given to subscribe for stock, without the

of. Slaughter-House Cases, 10 Wall. 289; Memphis v. aid of the act of 1854, stating, as a general rule, “that

Brown, 94 U. S. 717. The motion for rehearing in this a county, like another corporation, having right to create a debt, has also the incidental right to issue the

case was not decided until December 21, and the writ

of error was sued out and served within sixty days commercial evidence of it, in such forms as may be

thereafter. This was in time to secure the supersedeas. satisfactory to the parties." But the statement of

The motion to vacate is therefore overruled. Texas this genera! proposition may be regarded as only a dic

Pac. R. Co. v. Murphy. Opinion by Waite, C. J. tum in the case, since the judgment was fully supported by the express provisions of the act of 1852, ch. 191, if

[Decided April 21, 1884.] not by the power given to subscribe for stock in a railroad corporation. We are not referred to any other decision of the Supreme Court of Tennessee which MARYLAND COURT OF APPEALS ABSTRACT. comes apy nearer to a determination of the question. It is undoubtedly a question of local policy with each NEGLIGENCE - CONTRIBUTORY INTOXICATION State what shall be the extent and character of the

PROXIMATE CAUSE-CONCURRENT—NO RECOVERY.-In powers which its various political and municipal or

an action against a railroad company for its alleged ganizations shall possess; and the settled decisions of

negligence, whereby the plaintiff was injured, he must its highest courts on this subject will be regarded as

show the injury he received was occasioned excluauthoritative by the courts of the United States, for it

sively by the negligence of the defendant. If thereis a question that relates to tho internal constitution

fore it be found that the plaintiff has himself been of the body politio of the State. But as all, or nearly guilty of any negligence or want of ordinary care that all, the States of the Union are subdivided into politi- l has directly contributed to cause the accident, he can cal districts similar to those of the country from which

have no cause of action against the defendant for the our laws and institutions are in great part derived, injury received, though the latter may likewise bave having the same general purposes and powers of local

been guilty of negligence. And this whether the government and administration, we feel authorized, in plaiutiff was sober or drunk at the time the accident the absence of local State statutes or decisions to the

occurred. Although the plaintiff may have been contrary, to interpret their general powers in accord

guilty of negligence, and such negligence may, in fact, auce with the analogy furnished by the common proto

have remotely contributed to the production of the types, varied and modified of course by the changed accident, yet if the defendant could, in the result, by conditions and circumstances which arise from our pe

the exercise of reasonable care and diligence, in view culiar form of government, our social state and physi

of the circumstances of the case, have avoided the accal surroundings. In the case of Wells 7. Supervisors,

cident, the plaintiff's negligence, being the more re102 U. S. 631, we held that the power to issue county

mote cause, will not excuse the defendant. If the bonds did not arise from a power to subscribe for stock plaintiff

, who was injured by the alleged negligence of in a railroad company, where authority was at the

the railroad company, was in fact drunk, and failed to same time given to assess and collect a tax for the payment of the capital stock, and no other authority to

*To appear in 61 Maryland Reports.

observe the reasonable precautions to avoid danger to

INSURANCE LAW. himself while in the act of crossing the defendant's road tracks, or wbile upon the tracks of the road,

LIFE POLICY-BENEFIT-TO WHOM PAID.-- Where a though improperly there, and under circumstances to

life insurance policy provided that the benefit shall, at constitute negligence on his part, yet if the defend

the death of the insured, be paid to his wife and child ant's servants in charge of the train, after discovering dren,held, that such benefit should be paid to his the perilous situation of the plaintiff, could by the ex

wife and children equally, and not one-half to his wife ercise of reasonable care and diligence have avoided

and the other half to his children; and further held, the accident, they were bound to do so. If they pos

that each child should receive his share of the benefit, sessed knowledge of the plaintiff's situation, and failed although one of such children may have never lived to make proper and reasonable exertions whereby he with his father as a part of his father's family, and could have been saved, the defendant would be liable, may have also received a portion of his father's estate though it was by reason of the negligencc or drunken prior to his father's death. Hamilton Pitcher, 53 condition of the plaintiff that he was found in the

Mo.334, 336. Sup. Ct., Kans. July, 1883. Felix v. Ansituation of danger. In such case their failure to use

cient Order Workmen. Opinion by Valentine, J. (31 due care and exertion would constitute negligence,

Kans. 81.) which would form the direct and proximate cause of

FIRE — "

OTHER INSURANCE"-CANCELLATION-NOthe injury. If on the other hand, the plaintiff was on

TICE-REPAYMENT-RIGHTS OF MORTGAGEE.- (1) A the crossing, or at any other place on the road tracks provision in a policy of insurance, “that in case there of the defendant, in such condition as not to be able be any insurance in any other office extending to the to take care of himself, or paid no heed to the waru

property hereby insured, then this company, in case of ings of the approach of the train; or if from negli- a loss, will only be liable to pay its ratable proportion gence, or reckless indifference to the perils of bis situ- of the damage," has relation to the existence in fact of ation, he failed to observe the precautions necessary other insurance at the time of the loss, and does not to his safety, and his situation was not known to

bind the assured to keep up another policy which was those in charge of the train, and while observing a

on the property. He may consent to or submit to a careful lookout, was not discovered by them in time,

cancellation of the latter before the loss has occurred by the use of reasonable care and diligence, to save

without affecting his rights under the former. Hand bim from injury, then his own want of care and reck

v. Williamsburgh Ins. Co., 57 N. Y. 41, 47. (2) To effect less negligence in putting himself in such place of

the cancellation of a policy under a condition that danger would deprive him of all ground of action

“the insurance may be terminated at the option of the against the defendant. And this would be the case company on giving notice to that effect and refunding though there may have been negligence on the part of

a ratable proportion of the premium for the unexpired the defendant in detaching the engine from the cars

term of the policy,” there must be proof that the conand allowing the latter to run down the switch by ditions on which the right to terminate the insurance their own momentum, or by the force of the 'grade. depended were complied with before the loss occurred. la such case, the negligence would be mutual or con

(3) A notice dated February 3, 1874, stating that the current, and that of the plaintiff so directly contribut company, desiring to cancel the policy, will allow the ing to the production of the accident as to preclude assured until the 4th of February, 1874, to replace the the right of recovery. Kean v. Baltimore & 0. R. Co.

same in some other company, but on and after said Opinion by Alvey, C. J.

date will consider said policy as cancelled and of no

further force and effect, is sufficient in form. But WILL-CONSTRUCTION-VESTING OF ESTATE- proof that the notice was prepared on the day it bears VESTED REMAINDER.—In the absence of plain expres-date for immediate service; that it was found among sions, or an intent plainly inferable from the terms of the papers of the assured after his death-the fire. the will, the earliest time for the vesting of property which happened February 12, 1874, having occurred in will be adopted where there is more than one period his life-time--is not sufficient proof of service. (4) A mentioned in the will. A testator by his will gave his policy of insurance issued to the owner of the premfarm in A. A. county to his wife and brother in trust ises, in which is written "Loss, if any, payable to F. for his wife, A. E. C., to use and enjoy said farm and L. and A. L., mortgagees," is a contract by the insurer premises,and receive the income tberefrom “until such with the mortgagees to pay them the insurance money time as they shall have an offer of one hundred thousand according to the terms of the policy. State Ins. Co. v. dollars, and shall invest fifty thousand dollars of the Maackens, 9 Vroom, 564. It is also a contract for the proceeds of such sale in good and safe securities under full term for which the policy is issued, and the insuthe direction of the court,and pay the interest received rer, under such a stipulation as is in question, cannot from the said fifty thousand dollars so invested unto terminate the contract of insurance by withdrawing it my wife, A. E. C., during her natural llife, and at her before the expiration of the term specified in the condeath said fifty thousand dollars, or the securities in tract, without notice to the mortgagees. (5) Repay. which the same may be invested, shall go to and be- ment, or a tender of the ratable proportion of the come the property and estate of such person or persons premium, is also a prerequisite to the termination of as would, by the now existing laws of the State of the policy. Notice without repayment, or an actual tenMaryland, be entitled to take an estate in fee simple der of payment, is no compliance with the condition in lands by descent from me, and the heirs, executors unless there be a waiver of repaymeut. Van Valkenand administrators of such person or persons, per burgh v. Lenox, 51 N. Y. 465; Hathorn v. German Ins. stirpes, and not per capita.Held, that the remainder Co., 55 Barb. 28; Peoria Ins. Co. v. Botto, 47 IV. 516; in said fifty thousand dollars vested in the persons Wood on Ing., $ 106. (6) Repayment or a tender to who were the heirs of the testator at the time of his the assured is compliance with the condition; but a death. Estates will be held to be vested whenever it credit by the company of a ratable proportion of the can be fairly done without doing violence to the lan- premium on a debt due to it from the assured, not asguage of the will, and to make them contingent there sented to by him, is not sufficient. In Bergson v. must be plain expressions to that effect, or such intent Builders' Ins. Co., 38 Cal. 541, the policy had been ismust be so plainly inferable from the terms used as sued on a credit of part of the premium, and when the to leave no room for construction. Taylor v. Mosher, notice of cancellation was given the payment that had 29 Md. 443, adopted in Fairfax v. Brown, 60 Md. 50. been made by the assured on account of the premium Crisp v. Crisp. Opinion by Stone, J.

was not sufficient to cover pro rata the time that had


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