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tice Sharkey in Turney v. State, 8 Smedes & M. 120; Gunter v. Watson, 4 Jones (La.), 455. Because the error may have prejudiced the plaintiff in error, it is fatal to the conviction. Sup. Ct. Wis., May 15, 1884. Klock v. State. Opinion by Lyon, J. (19 N. W. Rep.

543.)

INSURANCE LAW.

FIRE-DESCRIPTION OF PREMISES-WARRANTIES AND REPRESENTATIONS-MATERIALITY--CONDITIONS WORKING FORFEITURE-WAIVER.-(1) Where in an application for insurance whereby the assured agrees that the application is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property, so far as the same are known to him, and are material to the risk, it is immaterial whether the statements are regarded as warranty, or merely as representations of the truth of the statement, because the applicant only assumes responsibility for their truth so far as the facts are known to him and material to his risk. Houghton v. Manufacturer's Ins. Co., 8 Met. 114. The application and the policies are to be read together, and it is a familiar rule in the interpretation of conditions which work a forfeiture that they are not to be extended by construction, and being inserted for the benefit of the insurer, they are to be liberally construed in favor of the assured. No effect can be given to the covenant on the part of the applicant at the end of the application, unless it is construed as restricting his undertaking and holding him accountable for the accuracy of his statements so far only as the facts stated are material to the risk. If every statement and the truth of every answer were to be treated as material, there would be nothing upon which the restriction could operate. In this application the assured represented by his answer to the eighteenth question that there was no planingmachine upon the premises, but the premises to which the question and answer refer are the insured premises, not the adjuncts or adjoining premises. Northwestern Ins. Co. v. Germania Ins. Co., 40 Wis. 446; Carlin v. Western Assurance Co., 57 Md. 515. There was therefore no misrepresentation. (2) When a question is not answered it is not to be inferred that there was nothing which required an answer, and in such case, if the answer is not responsive or satisfactory, the insurer waives a full answer. Higgins v. Phoenix Ins. Co., 74 N. Y. 6; Carson v. Jersey City Ins. Co., 43 N.J. L. 300; Com. v. Hide & Leather Ins. C., 112 Mass. 136. (3) Conditions that work a forfeiture are not to be extended by construction. Being put into the policy for the benefit of the insurer, they will be construed most liberally for the assured. (4) The materiality of the representation is a question of fact. The test is the probable effect of the representation upon the judgment of the insurer. Cir. Ct., N. D. N. Y., March 4, 1884. Mulville v. Adams. Opinion by Wallace, J. (19 Fed. Rep.)

NEW BOOKS AND NEW EDITIONS.

14TH BRADWELL. Reports of the Decisions of the Appellate Courts of the State of Illinois. By James B. Bradwell, vol. xiv. Containing all the remaining opinions of the first district up to, and including a portion of those filed on the 20th day of May, 1884, and all the remaining opinions of the second and third districts, up to June 19, 1884, and all the remaining opinions of the fourth district, up to the 15th day of July, 1884. Chicago, Chicago Legal News Company, 1884. pp. 723.

The reporter's work on this series, which is now so well known in the profession, has always been and continues to be admirably done; indeed some engaged in the same work might study them as models. He makes a head-note, and does not make it a mere reiteration of the words of the opinion, with the aid of the scissors. The present volume is well printed and has a good index. We note the case of Johnson v. Van Epps, p. 201, holding that the beneficiary in a life policy where the insured retains the control thereof may be changed with the consent of the insurer. The court discusses the cases at length. In St. Louis, etc., R. Co. v. Hill, p. 579, the court discusses the question of discrimination by carriers regarding freight.

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Order of General Term affirmed-People v. William Couraly.- Motion to put on preferred calendar granted without costs-People ex rel. Alfred Lawrence, respondent, v. Elias Mann and another, appellants; George Mark and another, appellants, v. State of New York, respondent.-Motion to put cause on preferred calender granted, with costs-People, respondents, v. Western Union Telegraph Company, appellants; People v. Gold and Stock Telegraph Company.-Motion for this court to request Supreme Court to return remittitur denied, without costs-Charles Wager and others, respondents, v. Eliza H. Wager, appellant.— Motion for re-argument denied, without costs-John D. McLean, respondent, v. Andrew McLean, appellant.-Motion to dismiss appeal denied with $10 costs-John A. Hurron, respondent, v. William G. Oppenheim, appellant.

NOTES.

The American Law Register for September contains a leading article on Railway Insurance by Adelbert Hamilton, and the following cases: Queen v. Price (Eng.), on cremation as a nuisance, with note by Marshall D. Ewell; Ort v. Fowler (Kans.), on negligent signing of a promissory note, with note by Henry Wade Rogers; Davis v. Duncan (U. S. Circ.), on liability of receiver for torts of employees, with note by Charles L. Billings; Railroad Co. v. Gallagher (Ohio), on liability of master to one summoned by his servant to assist him, with note by John F. Kelly.-—— " Life ” wants to know if a blind man can maintain an action on a draft at sight. The late Mr. Beavan, the most voluminous reporter of his day, was a generous son of the Middle Temple. A silver snuff-box presented by him has for years lain on the polished oak of the senior bar mess, and is during term duly sneezed over night after night by barristers who never take snuff out of hall. One of the items of his will is a bequest of "my gold répoussé snuff-box" to the benchers," over which they will in the future have an opportunity of blessing one another."-London Law Journal. (Referring to the classic custom of saying "God bless you!" whenever any one sneezes.)

The Albany Law Journal.

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ALBANY, OCTOBER 25, 1884.

CURRENT TOPICS.

UR reminiscences of Judge Folger have awakened considerable interest among our readers. One of them early discovered that the judge was wrong in attributing the poem, "The Auld Ash Tree," to Motherwell, and we are indebted to another for information of the authorship and a copy of the poem. The poem was written by Thomas Davidson, a young Scotch clergyman of a good deal of promise, who died about 1870. The poem has a sad significance when read in the light of Judge Folger's last letter to us. It is as follows:

THE AULD ASH TREE.

There grows an ash by my bour door,
And a' its boughs are buskit-braw

In fairest weeds o' simmer green,

And birds sit singing on them a'.

But cease your sangs, ye blithesome birds,
An' o' your liltin' let me be;

Ye bring deid simmers frae their graves
To weary me, to weary me!

There grows an ash by my bour door,
And a' its boughs are clad in snaw;
The ice drap hangs at ilka twig

And sad the nor' wind soughs thro' a'. Oh, cease thy mane, thou norlan' wind And o' thy wailin' let me be;

Thou brings deid winters frae their graves To weary me, to weary me!

Oh, I wad fain forget them a';

Remembered guid but deepens ill
As gleids o' licht far seen by nicht
Mak' the near mirk but mirker still.
Then silent be, thou dear auld tree-
O' a' thy voices let me be;

They bring deid years frae their graves
To weary me, to weary me!

Other correspondents have conjectured the meaning of the word “bin ” in the poem of "De Massa ob de Sheepfol'," which puzzled Judge Folger. One writes us: "I may be wrong, and certainly would not fancy I could ever understand a word that Judge F. did not, but is not this word clearly the old fashioned bin, of corn-bin and coal-bin? There is in this poem a repetition, as sheepfol' is a more correct expression than sheep-bin, though the latter is not incorrect, and sheep fol' bin is simply the expressive poetic repetition that yearned after more rhythm.' Two others write to the same effect. One says 66 sheep bin" and "sheepfold bin" are common expressions in the south.

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Another goes a little deeper into the subject, and into the "sheepfol'," as follows: "You see the poet uses the term 'sheepfol' bin, evidently meaning an enclosure within an enclosure. The sheepfold is one thing, while the bin within it, or attached to it, is another thing. Now, as a farmer's VOL. 30- No. 17.

boy of sixty or seventy years ago, I think, I remember that we had a bin, or sheep-bin, as we called it, built within the general enclosure for the flock, in which we put sheep about to lamb, sheep that had just lambed, with the little tender lambs themselves, for the purpose of giving them better care and attention than the general flock required. Am I right? I do not think I have heard the word for fifty years, used in that way, but your letter calls it up from the shadowy past, and I more than half think that was the sense in which the poet used it. I am confirmed in this opinion, that it is put in the mouth of "de black and thin" negro, who makes the nice distinction between the divine 'massa' who watches the 'sheepfol'-bin,' where his lambs, and the weak and the old of his flock are specially cared for, and the 'hirelin' shepa'd' who only cares to bring the fat and the thrifty ones into the fold." We ourselves suggested to the judge, at the time of his letter, that "bin" must mean a pen or enclosure, but the conjecture of our correspondent last quoted gives a deeper meaning to the expression. We are sure our readers will thank us for dropping into literature sufficiently to put before them two such exquisite poems.

The judges have several bad habits which ought to be corrected, and we are sure they will be glad to have them pointed out by a disinterested party. In some States, especially the western, there is a tendency to cite too many authorities. We have repeatedly found of late from twenty to thirty citations on a single page. This is "damnable iteration." If it is essential to refer to the authorities of all the States on a vexed question, it certainly is not necessary to cite the whole line in each State; the latest or the earliest, or both, would answer every purpose. The judges ought not to degenerate into digest makers or digest transcribers that is about all there is of this habit. What adds to the annoyance is that in many instances the citations are incorrect; it is bad enough to be superfluous without being mistaken.

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Another bad habit is citing reports by the name of the reporter. We have spoken of this before. It is of course unavoidable to refer to the early reporters in this way, but where the reports have begun to be numbered as State series they should be cited by the number of that series, as in Massachusetts, New York, Ohio, etc. In Pennsylvania the judges persist in the most annoying manner in citing "P. F. Smith," "Outerbridge," etc., instead of the numbers of Pennsylvania State. At all events there should be some uniform system, and the system of citing by the number of the State series seems to us by far the best. In Massachusetts and New York the reporters' names have long since been sunk, as they ought to be, and we wish the Pennsylvania judges would follow the example. The most obvious advantage of the new plan is that it avoids confusion.

The last bad habit to which we refer is the habit of reporting nasty cases in detail. We are sure this is generally the fault of the judges, and not of the reporters, although the latter usually get the blame. The details of all sexual cases ought to be suppressed. There is a case of this sort in 48th Georgia (covering more than one hundred pages) that is a disgrace to the reported jurisprudence of the State, and the same may be said of one in 53 Missouri. We have been told by reporters that judges insisted on the reporting of such cases. this goes on we shall be obliged to have expurgated editions of State reports for the chaste youth of our profession to study. The reports ought not to be loaded with such filth.

If

We have had great enjoyment in reading Mr. Justice Bradley's recent address delivered before the law department of the University of Pennsylvania, as we always have in reading any thing from the pen of this most admirable of judicial writers. Two or three extracts will serve to show its quality. Of the influence of law he says: "At first view, when we walk about amongst our fellow men, we may not observe the omnipotent influence and controlling effect of the law. Its power is so subtle and all-pervading that everything seems to take place as the spontaneous result of existing conditions and circumstances. It is like gravitation in the natural world, which, whilst it governs and controls every movement, and produces all the order of the Universe, is itself unseen. It must be studied in its effects in order to understand its power. So with law in civil society. It is over, under, in, and around every action that takes place. Its silent reign is seen in the order preserved, the person and property protected, the sense of security manifested; in the freedom of intercourse, in the cheerful formance of labor, in the confidence with which business is transacted, and trust is reposed by one man in another; in the peaceful and contented pursuit of trades and occupations, and the bestowal of services; all goes on cheerfully and smoothfully, working out and interworking the constant evolution of human happiness - because of the ever-existing (though generally unrecognized), consciousness of the presence, the watchfulness, and the allsufficient protection of the law. In ordinary conduct, conformity to its rules and requirements is pursued almost as a second nature; but in transactions requiring authentic evidence, greater knowledge, perhaps professional skill, is required; and when questions of ambiguity, complexity and difficulty arise, which the parties themselves cannot amicably solve, then of course the skill of the lawyer, and perhaps the wisdom and authority of the judge, must be resorted to. But compared with the millions of transactions which take place, these ripples on the surface do not often occur. The mighty river of things generally moves on with an undisturbed current; but only because it is kept in its banks and regulated in its course by the power of law."

Of codes he says: "Codes are undoubtedly useful for the purpose of settling disputed and doubtful points, and giving to the citizens the ordinary rules of law in a compact and intelligible form; but they should not be allowed to usurp the prerogatives of justice itself, seated in man's bosom, by giving to the letter of the code the inexorable fixity of a statute, and thus reducing the exposition of the law to a question of philology and verbal criticism, instead of a question of reason and justice. Used as a statement of principles and rules applicable to cases clearly within their scope, and not as restraints upon the judge in reference to other cases which are not provided for, and which require a new application of principles, i. e., the principles of right and justice governing analogous cases, codes may not only be admissible, but may be of great service in systematizing and perfecting the law. They should never be employed for the purpose of giving to the law a cast-iron fixity of form, and thereby repress ing all progress and imposing a deleterious and smothering restraint upon society itself."

He pays the following tribute to one of the great est lawyers whom our country has ever produced, but one almost unknown to fame: "One of the greatest, if not the greatest, of forensic speakers, as well as lawyers, that I ever knew, was the late Mr. George Wood, of New York

in his early days a leader of the bar of New Jersey. His discourse to the court was always grave, dignified and commanding; his diction was chaste and pure, and his style was rich in correct legal phraseology; so that he seemed when speaking to be the personification of the law itself. He made no gestures, and but few references to authorper-ities; he did not need authorities; you knew as he spoke that what he said was the law. All was reduced to such plain and simple principles, and enforced with such logical clearness of argument, in the chastest, as well as the richest and most appropriate legal diction, that he compelled the closest attention and carried conviction along with him to the end. I have often hung upon his lips with chained attention, even when opposed to him in case, and can truly say that I never enjoyed a greater intellectual treat than in listening to his arguments."

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Kentucky forever! This time it is ex-Chief Justice Hargis who has been distinguishing himself. Our readers will have seen in the daily press the account of his gallant encounter with another lawyer at the bar, and how the grave ex-chief condescended to throw a pair of law books at his antagonist's head. It is to be hoped that wounded honor is now satisfied, and that nobody will kill himself or any body else. The only mistake the ex-chief made was in not selecting heavier missiles of the like kind. A volume of Louisiana Annual in bulk or of West Virginia in quality must inevitably have done for his enemy if it had hit him.

NOTES OF CASES.

I offensive sights or

Anderson v. Doty, 33 Hun, 160, it was held that

sounds, an action will not lie to enjoin the maintaining of a bawdy house near the plaintiff's house, by means whereof the selling and rental value of the latter is liable to be diminished. The court, Rumsey, J., said: "There is no allegation of any noise, or any physical discomfort or tangible injury to the persons of the occupants of plaintiff's houses, or to the property, but the injury complained of is entirely consequential in its nature, arising from the fact that decent people will avoid such places, however quietly conducted, because of the inconveniences which they apprehend may occur, although such apprehensions may never be realized. The defendant's counsel bases his motion upon the ground that a private action will not lie to restrain a public nuisance, unless the plaintiff suffers an injury by it to his person or property different in character from that common to all citizens, and that this particular injury must be some sensible physical discomfort, or visible injury to property. The general rule is well settled that a private individual cannot restrain a public nuisance by his private action unless he suffers damage different in kind from that which the nuisance causes all other people. Coke, 56a; Stetson v. Faxon, 19 Pick. 147. But this private injury must be physical, that is, it must be offensive to the senses, or endanger health, or render the use of property uncomfortable, or actually interfere with its use. Wood Nuis. 4; Catlin v. Valentine, 9 Paige, 575; Brayton v. Fall River, 113 Mass. 219-229; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. Mere liability to injury is not suffi cient. Blackwell v. Old Colony R. Co., 122 Mass. 1-3; Milarkey v. Foster, 25 Am. Rep. 531, and note; Stetson v. Faxon, 31 Am. Dec. 123, and note. Nor is mere consequential injury, because plaintiff's premises are rendered less desirable or less valuable, where no physical damage has been done to the property, or no personal discomfort sustained by the occupants, a ground for private action. Lansing v. Smith, 8 Cow. 146, 167; Ricket v. Metro, Ry. Co., 5 B. & S. 149. It may be quite difficult to lay down any general rule. But I think it is safe to say, as is said by Wood, it is not enough that it diminishes the value of surrounding property. It is not enough that it renders other property less salable, or that it prevents one from letting his premises for as large a rent as before, or to as responsible or respectable tenants. Wood Nuis. 4; Big. Lead. Cas. on Torts, 467, et seq. In this case there are alleged no offensive sights or sounds from defendant's house, but the injury is caused because the existence of the nuisance gives the neighbor

hood a bad name.

I do not think this is sufficient

injury to plaintiff to enable him to maintain this action. But there are reasons of public policy and propriety why in my judgment this action should not be maintained by the plaintiff. The house kept by defendant is a nuisance, not because it is a

source of discomfort to the immediate neighborhood, but because its probable and natural conse quence is harmful to the social and moral welfare of the public. It is a nuisance because it is a crime, and it can only cease to be a nuisance when it is abated. I do not think that courts of equity are the proper tribunals in which to do this. The usual and customary means, and those always heretofore employed, are set in motion by the courts which administer the criminal law, whose machinery is sufficient to give to the community full relief in a case of this kind, and at the same time to administer such punishment as will prevent the recurrence of the evil. It is the duty of the plaintiff to apply to those tribunals to which the law has given the power not only to punish the guilty persons, but to abate the nuisance (Code Crim. Proc., § 953), and to execute its judgment to that effect. I cannot doubt that if the plaintiff, and all persons aggrieved by the existence of such places would resort to the criminal courts, the law would be promptly and rigorously enforced. At all events the duty of dealing with offenses of the kind charged against the defendant is confined to the criminal courts, and should not be assumed by nor imposed upon courts of equity." Barker, J., dis

sented.

In Schwander v. Birge, 33 Hun, 186, an action of damages for the death of the plaintiff's intestate, employed in the defendant's factory, by reason of the defendant's neglect to provide means of escape in case of fire, it was held that the questions of negligence and contributory negligence were for the jury. The deceased was nineteen years old, and the particular negligence alleged consisted in not providing a ladder or staircase leading to a scuttle in the roof. The court, Smith, P. J., said: "It is contended by the respondents that the deceased entered the employment of the defendants with full knowledge of the condition of the building, and he must therefore be presumed to have taken the risks arising from such condition, and for that reason cannot recover. Doubtless the general rule is that the employee loses the right of action when he voluntarily and unnecessarily puts himself in a place of danger. Whart Neg., § 215. So too it has been held that if a servant accepts service with knowledge of the character and position of structures from which employees might be liable to re ceive injuries, he cannot call upon the master to make alterations, or in case of injury hold him liable. Gibson v. Erie R. Co., 63 N. Y. 449; Owen v. N. Y. C. R. Co., 1 Lans. 108. But those rules apply only to the natural and ordinary risks incident to the work in which the servant engages, and the perils which in legal contemplation are presumed to be adjusted in the stipulated compensation. The fact that the intestate knew that there was no staircase or ladder leading to the scuttle was not, under the circumstances and as matter of law, conclusive of want of due care on his part. As was said by Mr. Justice Byles, in Clarke v. Holmes, 7 Hurlst. &

Nor. 937, 'a servant knowing the facts may be utterly ignorant of the risks.' It was held in Coombs v. New Bedford Cordage Company, 102 Mass. 572, that the fact that very near where a workman is voluntarily employed in a manufactory, machinery not connected with his work is in motion, the dangerous nature of which is visible and constant, is not conclusive that he has taken on himself the risk of being injured by it, in modification of the implied contract of his employer to provide for him a reasonably safe place in which to do his work; and if through inattention to the danger he meets with such an injury while doing his work, and sues his employer therefor, the questions whether he met it with due care on his own part, and whether by reason of the neglect of his employer to give him suitable notice of the danger, are for the jury.' In this case the danger from which the injury to the intestate resulted was not a natural and ordinary risk incident to the work in which he engaged. His employment did not require him to be at all times on the fifth floor, but it took him into all parts of the building. Assuming that he was in the fifth story when the fire broke out, the fact that he was there at that time was, in a measure, accidental. Nor can it be presumed, as matter of law, that this lad, nineteen years old when he entered the employment of the defendants, took into consideration the risk of the fatal disaster that afterward befell him, and that his compensation was measured accordingly. We think that under the circumstances the question whether the intestate took the risk of the danger referred to was one of fact to be decided by the jury." We agree with the judge that "the question is not free from doubt." We do not see that the employer was bound to provide any means of escape. This was held in Jones v. Granite Mills, 126 Mass. 84; S. C., 30 Am. Rep. 661, where the court said: "It is no part of the contract of employment between master and servant so to construct the building or place where the servants work that all can escape in case of fire with safety, notwithstanding the panic and confusion attending such a catastrophe. No case has been cited where an employer has been held responsible for not providing such means of escape."

In Waterhouse v. Spreckels, Hawaiian Supreme Court, July, 1884, the action was for libel in publishing a private letter written by the plaintiff to a person other than the defendant, apologizing for a slander and inclosing money to compromise a suit therefor, and authorizing the receiver to print and circulate one hundred copies of the letter. Judd, C. J., citing authorities, upholds the action, saying: "Under these authorities the receiver of the letter in question would not be authorized to make publication of it to any extent greater than authorized by the writer. A fortiori third parties, as these defendants are, have no such authority. Even Judge Story, though finding that courts of equity would not exercise the injunctive power of the court un

less the letters were of literary value, says that these matters are "cognizable in a civil or criminal action at law.' Story Eq. Jur., § 948a. In Brandreth v. Lane, 8 Paige, 23, Chancellor Walworth refused to restrain the publication of a libellous work, but left the plaintiff to his action at law. In Woolsey v. Judd, 4 Duer, 379, it is held that a court of equity cannot prevent the publication of private letters merely on the ground that such publication is injurious to the interests of society. It must stand on the ground that the writer has an exclusive property remaining in him, and the right to an injunction does not depend upon the question whether the letter possesses value as a literary composition. But Chancellor Kent, 2 Com. 381, says: 'The publication of private letters ought to be restrained when it would be a breach of confidence and trust, as letters of courtship, or when injurious to the character or happiness of others.' In Hopkinson v. Lord Burghley, 2 L. R. 448, Lord Cairns says: 'The question in all these cases is, what was the purpose or object in the mind of the person sending the letter. The writer is supposed to intend that the receiver can use the letter for any lawful purpose, and it has been held that publication is not such a lawful purpose.' It seems to me, that as the complaint avers, not only was an injury intended to plaintiff by defendants, but that one was done to the feelings, character and reputation of the plaintiff by the wrongful and injurious publication of this letter; this injury is not one that is without redress. Upon principle, and I think upon sufficient authority, to wit: Mr. Justice Story, Lord Cairns and Judge Cooley, the plaintiff ought to have the remedy for the wrong done him. Where there is a right there is a remedy. As Lord Holt has said: 'It is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.' Ashley v. White, Ld. Raym. 938; 1 Smith Lead. Cas. 105. Here the plaintiffs had been denied the right to vote for members of Parliament. 'No such case' says Cooley, 'had ever been adjudged, and there was no precedent for the suit. But in the opinion of Lord Holt & precedent was not important, the material question was, had they a right to vote? When the facts were found in their favor the legal conclusion must follow: 'Having a right, the remedy was of course.' In the case before me the wrong has been done, the letter has been published; it cannot now be restrained by injunction. To sustain this demurrer would be to hold that the defendants may continue to publish this letter from year to year, indefinitely, in all parts of the world, wherever the defendants may think it would damage the plaintiff. It wonld be a reproach to justice to say that such conduct is remediless." See 2 ALB. LAW JOUR. 131.

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