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the State under whose laws it is created or formed, ignorant of the circumstances which render it voidaand in which it has its corporate existence, and a suit ble by the principal. Thompson v. Lockwood, 15 by or against such corporation is therefore presumed Johns. 256; Fisher v. Shattuck, 17 Pick. 252; Robinson to be a suit by or against citizens of the State which v. Gould, 11 Cush. 55; Bowman v. Hiller, 130 Mass. created it. 0. & M. Ry. Co. v. Wheeler, 1 Black, 295, 153; Harris v. Carmody, 131 id. 51; Griffith v. Sitand cases there cited; Cowles v. Mercer Co., 7 Wall. greaves, 90 Penn. St. 161. Thefcase of Hawes v. Mar. 1:21; Railway Co. v. Whitton, 13 id. 283. And this chant, 1 Curtis, 136, in this court, was not a case of durule is upon principle as applicable to corporations ress at common law, but of oppression by the illegal formed under the laws of a foreign country, as under exercise of official power in excess of statute authority the laws of any of the States of the Union, which are and was decided upon that ground. (4) A mere allegaso far foreign to one another. A corporation formed tion of fraud in general terms, without stating the under the laws of Great Britain is necessarily resident facts upon which the charge rests, is insufficient. J'Antherein, and its members are presumed to be subjects son v. Stuart, 1 Term R. 748, 753. Lord Chancellor Selthereof. The suit being between an alien on the one bourne, Lord Hatherly and Lord Blackburn, in Wallhand, and citizens of a State of this Union on the ingford v. Mutual Society, 5 App. Cas. 685, 697, 701, other, the court has jurisdiction of the controversy, 709; 34 Eng. Rep. 65; Service v. Heermance, 2 Johns. let the questions involved therein be what they may. 96; Brereton v. Hull, 1 Denio, 75; Weld v. Locke, 18 Art. 3, $ 2, U. S. Const.; Act of 1875, $ 1 (18 St. 470); | N. H. 141; Bell v. Lamprey, 52 id. 41; Phillips v. PotCummings v. National Bank, 101 U. 8. 153. Cir. Ct., ter, 7 R. I. 289, 300; Sterling v. Mercantile Ins. Co., 32 D. Oreg., Aug. 18, 1884. Dundee, etc., Investment Co. | Pevn. St. 75; Giles v. Williams, 3 Ala. 316; Hynsou v. v. School Dist. No. 1. Opinion by Deady, J.

Duun, 5 Ark. 395; Hale v. West Virginia Co., 11 W. AGENT-TO SELL, CANNOT DEDICATE--STREET-VA

Va. 229; Capuro v. Builders' Ins. Co., 39 Cal. 123; Cole CATING-TITLE RÉVERTS TO ORIGINAL OWNER.- - (1) A

v.Joliet Opera House, 79 Ill. 96. Cir. Ct., D. R. I., power of attorney to sell and convey does not imply Aug. 4, 1884. Hazard v. Griswold. Opinion by Gray, authority to the attorney to dedicate or give any part

J. ([4] See 7 Am. Rep. 281.-Ed.) of the principal's property to the public; but when the CONTRACT—ESTOPPEL WHETHER PRINCIPAL power is expressly to dedicate, the owner is estopped AGENT-ADEQUATE REMEDY AT LAW.-(1) He who conto deny the act of his agent. (2) In the event of a tracts as a principal will not be permitted to show, in street, previously dedicated to the city of Chicago, be- the absence of mistake, fraud or illegality, that he ing vacated by an ordinance of the common council, contracted as an agent in a controversy between himsuch vacation to continue so long, and so long only, as self and the other contracting party. Whart. Ag., $$ the ground shall be used for railroad purposes, a subse- 410, 492. And the knowledge of the other contracting quent resolution, declaring the vacation absolute, is party of his real character does not affect the rule. sufficient to operate as a waiver by the city of its re- Tayl. Ev., $ 1054. The case is not like those where a served rights in the premises, notwithstanding the part only of a verbal contract has been reduced to writfact that the latter resolution was passed by a majority ing (Potter v. Hopkins, 25 Wend. 417; Batterman v. rather than two-thirds of the aldermen elected. (3) Pierce, 3 Hill, 171; Grierson v. Mason, 60 N. Y. 394), When the city of Chicago assumes to vacate, even con- or where an agreement collateral to the written ditionally, a street previously dedicated to it loses all

agreemeut is set up (Lindley v. Lacey, 17 C. B. [N. S.] title with which it was vested by the act of platting. 578; Chapin v. Dobson, 78 N. Y.74; Crossman v. Ful(1) By the vacating of the city of Chicago of a street ler, 17 Pick. 171) which does not interfere with the previously dedicated to it, the title to the ground does terms of the written contract, though it may relate to not pass to the abutting lot-owner, but to the original the same subject-matter. The written contract here owner of the land. Hyde Park v. Borden, 94 Ill. 26; | is of the very essence of tbe transaction between the Canal Trustees v. Havens, 11 id. 554. Cir. Ct., N. D. parties, and creates the relation of vendor and purIII., May, 1884. Wirt v. McEnery. Opinion by Blod- chaser between them. It fixes their mutual rights and

obligations, and cannot be subverted by extrinsic evi. NEGLIGENCE SIGNING INSTRUMENT

dence. As is stated by Denio, J., in Barry v. Ransom, JURISDICTION, WANT OF

12 N. Y. 464, “the legal effect of a written contract is FRAUD - MUST STATE FACTS — DURESS. — (1) A per

as much within the protection of the rule which forson capable of reading

and

understanding bids the introduction of parol evidence as its laninstrument which he signs, is bound in guage." (2) While courts of equity have concurrent julaw to know the contents thereof, unless prevented risdiction in all cases of fraud, they will not ordinarily by some fraudulent device, such as the substitution of

exercise it, if there is a full and adequate remedy at one instrument for another. Thoroughgood's case, 2 | law (Bisp. Eq., $ 200; Ambler v. Choteau, 107 U. S. 586), Co.Rep.9b; Anon. Skin.159; Maine Ins.Co.v.Hodgkins, and the Federal courts are especially admonished not 66 Me. 109; Seeright v. Fletcher, 6 Blackf. 380; Haw- to entertain such cases. The statutory enactment ($ 16 kins v. Hawkins, 50 Cal. 558. (2) In an action for of Judiciary Act, Rev.Stat., 8 723), if only declaratory of breach of a boud given in a suit in equity bronght by the pre-existing law, is at least intended to emphasize a stockholder in behalf of himself and other stock

the rule and impress it upon the attention of the court. holders, the obligors cannot defeat the action by plead- New York Co. v. Memphis Water Co., 107 U. S. 205. ing that the court had no jurisdiction of the suit in

It is the duty of the court to enforce this rule sua equity because the bill failed to allege that the corpo- sponte. Oelrichs v. Spain, 15 Wall. 211; Sullivan v. ration bad been requested and had refused to bring Portland R. Co., 94 U. S. 806. Cir. Ct., S. D. N. Y., the suit, the record made part of the plea showing that

Aug. 11, 1884. White v. Boyce. Opinion by Walthe defendant was personally served and appeared in lace, J. such suit. Hawes v. Oakland, 104 U. S. 450; Hazard v, Durant, 11 R. I. 195. See also Jesup v. Hill, 7 Paige.

MASSACHUSETTS SUPREME JUDICIAL 95; Griswold, Petitioner, 13 R.I.125. (3) Duress at com

COURT ABSTRACT. mon law, where no statute is violated, is a personal defense, which can only be set up by the person subjected to the duress; and duress to the principal will

CORPORATION-FRAUDULENT TRANSFER OF STOCKpot avoid the obligation of a surety; at least unless

NEW CERTIFICATE ISSUED.-We see no principle upon the surety at the time of executing the obligation is which it can be held that by merely recording the

gett, J.

WITHOUT

READING — PLEADING

an

transfer and issuing a new certificate in accordance which he did. It is only in this mode that, as between with it, the defendant is guilty of negligence which the other creditors of Seekell and Foster, it can be derenders it liable to the estate for the stock or its value termined whether he had such a right. The result to in any form of action. When a transfer of its stock is which we have arrived does not conflict with the depresented to a corporation, it is bound at its peril to cision in Wilson v. Bryant, 134 Mass. 291. Bristol Co. see that it is a genuine transfer by one who has the Savings Bank v. Woodward. Opinion by Devens, J. power of disposition over the stock. Sewell v. Boston [Decided July, 1884.) Water Power Co., 4 Allen, 277; Merriam v. Boston, Clinton & Fitchburg Railroad, 117 Mass. 241; Pratt v.

LIMITATIONS-NEW PROMISE-LETTER.—The general Taunton Copper Co., 123 id. 110. If it issues a new

rules of law applicable to this case are well settled in certificate upon a forged or unauthorized transfer, the

this Commonwealth. As the plaintiff's original cause real owner retains his property in the stock, and the

of action accrued more than six years before bis suit corporation may also be liable to a bona fide holder of

was commenced, it is incumbent upon him, in answer the new certificate. But when a transfer, by one who

to the defense of the statute of limitations, to prove a has the full power to transfer, is presented, it has the

new promise in writing, either absolute or conditional, right to act upon it, and it is not its duty to inqnire

by the defendant within six years. Pub. Stats., ch. into the purposes of the parties or to investigate the

197, $ 15; Bangs v. Hall, 2 Pick. 368; Gardner v. Tuquestion whether the transaction is in good faith or is

dor, 8 id. 206; Bailey v. Crane, 21 id. 323; Penuiman v. fraudulent. Rand, as executor, had the full power of

Rotch, 3 Meto. 216; Roscoe v. Hale, 7 Gray, 274; Wesdisposing of this stock; there is nothing in the will re

ton v. Hodgkins, 136 Mass. 326, cited. The defendant stricting his general authority as executor as to it; he

in bis letter does not deny or question the plaintiff's had the power and right to sell it or to pledge it for

debt; by fair implication he admits it. But the letter the purposes of the estate. The defendant took care

does not contain any new promise to pay the debt. to inform itself of the authority of Rand, and knew

The plain object of the letter was not to make a new the relation of heir and legatee which Dillon sustained

promise, but to refuse to make a new promise by girtoward the estate. We do not think it was bound to

iug a note as requested by the plaintiff. The only go further and ascertain at its peril whether the trans

plausible ground for contending that the letter conaction between Rand and Dillon was in fraud of the

tains a new promise is founded upon the last sentence. estate. Hutchins v. State Bank, 12 Meto. 421. Construing it in connection with the other facts of the Crocker v. Old Colony R. Co. Opinion by Morton,

letter, it cannot reasonably or by fair implication C. J.

be ipferred that the defendant intended by it to make [Decided July, 1884.]

a new promise or create a new obligation. The fact to

be proved by the plaintiff is a new promise, and we are INSOLVENCY-HOLDER OF COLLATERAL SECURITY

of opinion that the letter is insufficient for this purPROOF OF CLAIM. - Where the creditor of the insolvent

pose. Krebs v. Olmstead. Opinion by Morton, C. J. estate of a deceased person holds a mortgage or other

[Decided Sept., 1884.] collateral security for his debt, which he received from his debtor, he cannot be admitted to prove his SHIP AND SHIPPING-GENERAL AVERAGE- FAILURE debt except for the balance which may remain after TO MAKE ADJUSTMENT OF LOSS-FIRE EXTINGUISHED deducting the value of the security (which value is BY MUNICIPAL AUTHORITY.-The gist of the action is first to be ascertained by sale or appraisal), unless he negligence in delivering the cargo without an adjustwill surrender the security to go into the common ment of the loss as a general average loss, and without fund for the payment of creditors. Amory v. Francis, taking security for the payment of the contributive 16 Mass. 308; Middlesex Bank v. Minot, 4 Metc. 325; shares. The fundamental question is, was this a genSavage v. Winchester, 15 Gray, 453; Haverhill Asso

eral average loss? Although the steamship was at her ciation v. Cronin, 4 Allen, 141. But as this rule does wharf, the maritime adventure was not at an end; the not apply where the collateral security is furnished by ship was still bound to the cargo for its safe delivery, a third person not primarily responsible for the debt, and the cotton, on account of which the suit bas been because if the security is first applied to the reduction brought, was undischarged. It must be considered of the debt there is eo instanti created a new debt of that it is now established that damage to unburnt porequal amount in favor of the surety whose property is tions of the cargo, caused by water intentionally used tbus expended, the claimant deems that it has here to extinguish a fire in a ship, is of the nature of a genno proper application. The security in question was eral average loss. Whitecross Wire Co.v.Savill, 8 Q. B certainly furnished by the debtor; but the claimant's D. 653; Nelson v. Belmont, 21 N. Y. 36; Nimick v. contention is that as it here appears that Seekell, pre- Holmes, 25 Penn. St. 366. The defense is that the fire viously to conveying in mortgage to the plaintiff, bad was extinguished, not by the master or by any person made a quit-claim deed of the premises to Foster, re- in charge of the steamship or her cargo, but by the serving to himself and wife a life estate therein, al- chief engineer of the fire department of New Bedford though the record title was still in him, he had no under his authority to extinguish fires within the city. right thus to furnish security to the claimant, and it and that it was necessary to do what he did, not only must be dealt with as if it had been furnished by Fos- for the purpose of saving the ship and cargo, but for ter. A proceeding to wbich Foster is not a party does preventing the spread of the fire to buildings mot afford the means of determining whether as be- and other property in the city. The right to tween her and Seekell the latter had a right to make

extinguish fires in the city of New Bedford is a part of this mortgage and furnish the security, nor whether the police power of the Commonwealth. It is clear the application to the reduction of this debt would or that the chief engineer and his men were not employed would not immediately create a new debt equal in to extinguish the fire by any person lawfully in cbarge amount thereto from the estate of Seekell to her. As of the steamship, but that they acted wbolly under the security was not furnished to the plaintiff by Fog- their public employment. To constitute a general arter, it has made no contract and is under no obligation

erage loss, there must be an intentional sacrifice of a to her, and it should avail itself of the security re- part of the property for the purpose of saving the received from Seekell toward the satisfaction of its mainder from a common peril, or extraordinary exdebt, or by a proper assignment and transfer of it to

penditures must be incurred for the purpose of saving the administrator of Seekell's estate enable him to as

the property in perll. The authority to determine sert, as against Foster, the right of Seekell to do that

when a sacrifice shall be made and what property sball 497

or

or

be sacrificed rests with the master or other person law extent to which Hogan was injured, but this furnishes fally in command of the ship. His right to sac- no reason against maintaining this suit. Hoosac Tun. rifice the property of other persous than the nel Dock Co. v. O'Brien. Opinion by Mortou, C. J. ship ow uer is derived from necessity, whereby iu [Decided July, 1884.] circumstances of great peril he becomes the agent of all persons whose property in the common adventure is in peril. If this property is injured or destroyed by NEBRASKA SUPREME COURT ABSTRACT. strangers to the ship and cargo, who are not employed by tbe master or other person in command, it is not a SPECIFIC PERFORMANCE-SALE OF LAND-ASSENT OF general average loss. This is evident if the act of the VENDOR-ASSIGNMENT OF CONTRACT.-A condition in stranger is a tort; but we do not see that it makes any a contract for a sale of real estate, requiring the assent differeuce in principle if the act of the stran- of the vendor to an assignment of the same, but not ger is justifiable on the grouud of a public providing for a penalty or forfeiture of the contract,

paramount right. Tbe distinction between will not defeat an action by the assignee thereof, who fire put out by the authority of the master has fully performed, for specific performance. Such

other person in command, and one put out provisions are sometimes inserted in leases, because it by public authority without regard to the will of the seems to be a reasonable privilege that the lessor shall master, we think is sound. When a ship has been select such tenants as in his opinion will take proper brought to a wharf, so far as it has become subject to care of the leased premises and pay the reut punctmunicipal control, if that control is exercised, we ually (Tayl. Landl. & T. [7th ed.] 349); but it is a rethink that it stands no differently from any other prop

straint which courts do not favor. Crusoe v. Bugby, erty within the municipality over which the same con- 2 W. Bl. 7766; S. C., 3 Wils. 234; Church v. Brown, 15 trol has been exercised; and that the general maritime Ves. 258, 265; Tayl. Landi. & T. 349. Upon a breach law does not govern the reciprocal rights and obliga- the original lessee becomes liable for damages; but tions of the parties to the maritime adventure, so far the lease is not terminated, or the interest of the subas the consequences of this control are concerned, but lessee destroyed, unless the original lease is made on that they are to be determined by municipal law. condition that there shall be no assignmeirt or underWamsutta Mills v. Old Colony Steamboat Co. Opinion letting, or provides that the original lessor may, upon by Field, J.

any assignment or underleasing, enter and expel the

les see or his assigns. 1 Pars. Cont. (5th ed.) 506; 1 ARBITRATOR-EXEMPTION FROM LIABILITY - AT

Smith Lead.Cas.(6th ed.) 89 et seq. But to create a good
TORNEY-LIABLE FOR SUBORNING WITNESS-JUDG-
MENT-COLLATERAL ATTACK.-(1) The principle is too

condition upon which a term granted by a lease shall well settled to require discussion that every judge,

end before it expires by lapse of time, a right to rewhether of a higher or a lower court, is exempt from

enter on breach must be expressly reserved. Dennison liability to an action for any judgment given by him

Read, 3 Dana, 586; Vanatta v. Brewer, 32 N. J. Eq. in the due course of the administration of justice.

268; Boone Real Prop., $ 102; 1 Washb.Real Prop. (4th Yates v. Lansing, 5 Johns. 28.2, and 9 id. 395; Pratt v.

ed.) 479. Where however, as in this case, there was an Gardner, 2 Cush. 63, cited. A similar immunity ex

absolute sale of the property, and the terms of the tends to jurors. The question whether a like immu

contract have been fully complied with by the purnity extends to arbitrators seems never to have arisen

chaser or his assignee, it is no defense to an action for in this Commonwealth. An arbitrator is a quasi-judi

specific performance to allege that the defendant did cial officer under our laws exercising judicial func

not give his assent to the assignment. There is no tions. There is as much reason for protecting and in

claim or pretense, nor indeed could there be, that the Buring his impartiality, independence and freedom

contract is forfeited, or that the defendant's security from undue influences as in the case of a judge or ju

is impaired in any manner by the assigument. Where The same considerations of publio policy apply,

a penalty of forfeiture is designed as a mere security and we are of opinion that the same immunity extends

to enforce the principal obligation, it has performed its to him. Jones v. Brown, 54 Iowa, 74. It follows that

purpose when the party insisting upon the penalty or this suit cannot be maintained against the defendant,

forfeiture is fully paid his money or damages. Story Sprague, and his demurrer must be sustained. The Eq., $ 1316; Peachy v. Somerset, 1 Strange, 447; Skindemurrer of the defendant, O'Brien, presents a differ

ner v. Dayton, 2 Johns. Ch. 535. The defendant in this ent question. The immunity from actions

case has been paid according to the terms of the contended to Sprague on grounds of public policy does not

tract. While receiving and retaining the plaintiff's protect O'Brien. (2) If a lawyer who brings a suit, by money for the land, and thereby admitting the valid

ity of the contract, his ouly plea is that he has not ouborning wituesses, by bribing the judge, jury or arbitrators, or by other corrupt and illegal practices, given his assent to the assignment to the plaintiff

. He procures au unjust judgment against his adversary, we

has the notes of the original purchaser, and the plaintknow of 10 legal reason why he should not be responsi: tract, by a mortgage on the land. This is sufficient,

iff offers to secure them, as agreed upon in the conble for his illegal acts to the party injured. He is not

and the answer constitutes no defense to the action.
exonerated, because for reasons which do not apply to
him, a joint tort feasor cannot be reached. Rice v.

Wagner v. Cheney. Opinion by Maxwell, J.
Coolidge, 121 Mass. 393. (3) The defendant contends that [Decided July 16, 1884. ]
the judgment founded on the award cannot be im- TRIAL-JUROR-COMPETENCY-HEARING PREVIOUS
peached, and that it is conclusive on the plaintiff, and CASE.—That a juror was one of a jury which had just
while unreversed prevents him from maintaining this tried a case between the present plaintiff and another
action. This argument is founded upon a misappre- party, for a similar cause of action involving the same
hension of the effect of the former judgment. The general considerations, does not render him incompe-
parties in this suit are not the same as in the former tent to sit in the subsequent case. In the case of Al-
suit. The plaintiff in this suit does not impeach the gier v. The Maria, 14 Cal. 167, the action was for dam-
former judgment; on the contrary, the plaintiff relies ages against defendant for negligence, by which sparks
upon it and the fact that it is conclusive as between it of fire escaped from the chimney of the steamer while
and Hogan, as the foundation of its claim against pavigating Feather river, and burned up one mile of
O'Brien. The plaintiff may have to try in this suit plaintiff's fence along the river bank. On the trial,a jury
one of the issues involved in the former suit, viz., the from the regular panel being called, defendant objected

ror.

ex

bate Court of A. county, in Illinois, to tbe plaintiff in error, who applied to the District Court of L. county, in this State, for license to sell the real estate. Held, that such administrator had no authority as such in this State, and such license could be granted legally only to an administrator appointed by the Probate Court of L. county, in this State, that being tbe place of domicile of the deceased at the time of his death. It is a generally recognized legal proposition that the last place of domicile of the deceased is the place where letters testamentary or of administration must issue, and that the Probate Court of that place alone bas jorisdiction. Iu Rubber Co. v. Goodyear, 9 Wall. 789, the Supreme Court of the United States has held that the last domicile of the deceased determines the jurisdiction as to administration. See also Wells Juris., $ 275. See also Creighton v. Murphy, 8 Neb. 356; 8. C., 1N. W. Rep. 138; Minkler v. Woodruff, 12 Neb. 270; S. C., 11 N. W. Rep. 296; Cadman v. Richards, 13 Neb. 386; 8. C., 14 N. W. Rep. 159. McAnulty v. McClay. Opinion by Reese, J. [Decided Aug. 7, 1884.]

INSURANCE LAW.

*

to the panel, on the ground that they had just passed upon a similar case between the same plaintiff and others against the same defendant, for burning the grain of plaintiffs on the same day the fence was burned, and that they were not fair and impartial, but had formed and expresed an opinion. The court overruled the objection. Upon error the Supreme Court affirmed the judgment, and in the opinion by Baldwin, J., say: “ We do not see how tbe court could de. termine, in advance of the development of the facts, that the questions involved in this case were the same as in the case before tried by the jury. They might or might not have been. The opinion expressed or implied by the jury in their verdict was merely hypothetical. It was merely the conclusion they drew from the facts in evidence and the law given them in the charge in the particular case before them. It would be absurd to say that if they had rendered a verdict a year before, on facts before them going to establish, or which they supposed established, the liability of a steamer for acts of negligence, they could not now sit upon a case which might involve the same liability; and the question is not different merely because the first trial was immediately before the last. The jury could not possibly know what facts would be brought out in the case, nor what the argument of counsel would be, nor what the rulings of the court * * If one plaintiff sues a sheriff for not making money on an execution, and the jury find for plaintiff, and if a dozen other plaintiffs should afterward sue for similar malfeasance it would scarcely be contended that a juror was incompetent in every case after the first." See also Com. v. Hill, 4 Allen, 591. Chariton Plow Co. v. Deusch. Opinion by Cobb, C. J. [Decided Aug. 7, 1884.)

NEGLIGENCE-CONTRIBUTORY.-G., a boy, between eleven and twelve years of age, while walking on a rail. road track at a point where there was no thoroughfare, by accident stepped between the guard and main rail at a switch, and was unable to extricate his foot, and a switch engine being turned on to that line, ran over and crushed his foot. Held, that if the employees of the company, after becoming aware of the perilous condition of the plaintiff, by the exercise of a reasonable degree of care, could have prevented the injury, the company was liable. The rule is well settled that a party who is injured by the mere negligence of another cannot recover for the injury, if be by his ordipary negligence or willful wrong, proximately contributed to produce the injury complained of, so that but for his co-operating fault it would not have occurred, except where the proximate cause of the injury is the omission of the defendant, after becoming aware of the danger to which the plaintiff is exposed, to use a proper degree of care to avoid injuring him. Shear. & Red. Neg.,$ 25; C.,C. & R. ('o.y. Elliott, 4 Ohio St. 474; Brown v. Hannibal, etc., R. Co., 50 Mo. 461; Railroad Co. v. Davis, 18 Ga. 679; Cooper v. Central R. Co., 44 Iowa, 134; Cooley Torts, 674; Trow y. Railroad Co., 24 Vt. 487; Isbell v. Railroad Co., 27 Conn. 393; Hicks v. Railroad Co., 64 Mo. 430. If therefore the employees of the defendant in charge of the locomotive, after being aware of the perilous condition of the plaintiff, did not exercise a reasonable degree of care to prevent the injury, the defendant cannot rely on the plaintiff's negligence to defeat the recovery. Burtnett v. Burlington, etc., R. Co. Opinion by Maxwell, J. [Decided Aug. 6, 1884.]

ADMINISTRATOR LETTERS ISSUED IN ANOTHER STATE-AUTHORITY.- A citizen and resident of this State died at his home in L. county owning property in this State and the State of Illinois. Letters of administration of his estate were granted by the Pro

FIRE-PROOFS OF LOSS—“FCRTHWITH"- JUESTION FOR JURY.-Compliance as to giving notice and furnishing proofs of loss, is a conditiou precedent to re covery, when the loss is not payable until after such notice is given, etc., and such compliance must be alleged and proved; and a want of such allegations and proof can be taken advantage of ouder the general issue; it is not necessary to plead such defense specially. Edgerly v. Farmers' Ins. Co., 43 Iowa, 587; St. Louis Ins. Co. v. Kyle, 11 Mo. 278; Inman v. Western Fire Ius. Co., 12 Wend. 452; Columbian Ins. Co. v. Lawrence, 10 Pet. 507; Mason v. Harvey, 8 Exch. 819. One required to give notice of loss “forthwith" must give such notice with due diligence and within a reasonable time. St. Louis Ins. Co. v. Kyle, and Inman v. Ins. Co., supra; Peoria M. & F. Ius. Co. v.Lewis, 18 I11.553; Niagara Fire Ins.Co.v.Scammon, 100 111.644; S. C., 11 Ing. Law Jour. 614; Phillips 5. Protection Ins. Co., 14 Mo. 220; Edwards v. Baltimore Ins. Co., 3 Gill, 176. And although the notice was given twenty-two days after the fire, it was held to be a question for the jury, whether given forthwith. The Supreme Court of Connecticut in Lockwood v. Ins. Co., 47 Conn. 553, hay: Extreme cases either way may be easily determined. Between them there is a wide belt of debatable ground, and cases falling within it are governed so much by the peculiar circumstances of each case that it is much better to determine the matter as a question of fact." Such being the rule, the defendant had no right to have the question passed upon as one of law, and his request was properly refused. But the refusal did not termivate the duty of the court in the matter. Whether the insured had given notice forthwitb, was a point material to the decision of the case; without proof of that fact the plaintiff could not recover. There was evidence upon that point, and it was the duty of the court to charge correctly and fully whether requested to do so or not. Vaughan v. Porter, 16 Vt. 266. A party is entitled to such a charge as the facts in the case require. Hazard v. Smith, 21 Vt. 123. The County Court is always bound to charge the jury according to the rules of law whether specifically requested so to do or not. Redfield, J., in Buck v. Squiers, 23 Vt. 498; and see 16 id. 579; 28 id. 222 ; 39 id. 565; 40 id. 495. The plaintiffs claim that such notice may be waived; but a waiver is an intentional relinquishment of a kuown right. The existence of such an intent is a matter of fact. First Nat. Bank v. Hartford L. & A. Ins. Co., 45 Conn. 22;

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Home Ins. Co. v. Davis, 98 Penn. 280: Dey v. Martin not need construction; hence Insurance Co.v. Berger, (Va.), 16 Rep. 443; but no question of waiver was 6 Wright, 285, and other cases cited have no applicabrought into the case; had it been, and found against tion. The argument that the judgment was entered the defendant, there would have been no error in this without the kuowledge of the assured is without point. Sup. Ct. Vermont. Donahue v. Ins. Co. Opin- force. It was entered upon his confession, and he is ion by Taft, J. (56 Vt. 374.)

chargeable with knowledge. A man who gives a judg. LIFE-POLICY-PREMIUM NOTE-WAIVER.-A policy

ment or mortgage knows that it may and probably of insurance was made September 4, 1879, to run five

will be placed on record. He may not have actual years, and a note taken for the premium due May 1,

knowledge of the time of its enty, but the act is his, 1880. The policy contained a provision tbat if the

and ho must be held responsible therefor. I am aware note was not paid when due the policy should be void.

that it has been held in Green v. Homestead Fire In October, 1880, a loss occurred. The premium note

Ius. Co., 82 N. Y. 517, and other New York cases, that was paid in April, 1881. Held, that the acceptance of

mechanics' liens are not incumbrances within the the premium was a waiver of the forfeiture of the pol- meaning of similar clauses in fire insurance policies. icy, and that the company was liable for the loss; that

These cases however go upon the ground that the the policy was voidable, not void. Sup. Ct. Neb.,

liens were not entered by the consent or procurement May 27, 1884. Phænix Ins. Co. v. Lansing. Opinion by

of the assured. These cases are not analogous, and do Maxwell, J. (20 N. W. Rep. 22.)

not apply. Sup. Ct. Penn., April 30, 1883. Hill v.

Penn. Mut. Fire Ins. Co. Opinion by Paxson, J. (See FIRE-INTRODUCTION OF NEW PARTNER INTO FIRM

37 Am. Rep. 830; 28 Eug. Rep. 161.-Ed.] (15 W. AVOIDS.--The sale or transmutation of the various in

Notes, 43. terests between partners themselves, and nobody else

FIRE--CONDITIONS-WRITTEN AND PRINTED--CONFLICT having the control, and leaving the possession where

CONSTRUED AGAINST INSURER.-Insurance being a conit was, does not invalidate the policy; but the introduction of a new partner, with an investiture of an in

tract of indemnity, policies must have a reasonable con

struction in view of that main intent of the parties, terest in him wbich he did not have before, does in

having reference to the particular nature and situavalidate the policy. Cir. Ct., D. Minnesota, June 26,

tion of the subject matter insured. Where the reason 1884. Drennen v. London Assurance Corp. Opinion by

of a general condition in a policy of insurance does not Miller, J. (20 Fed. Rep. 657.)

exist in a particular case, the condition itself becomes FIRE-AUTHORITY OF AGENTS-WAIVER OF PROOFS meaningless and inoperative. Where therefore a form OF LOSS.- Where the authority of agents of a fire in- of policy is used by an insurance company for the insurance company cousists of full power to receive pro- surance of a peculiar kind of property, peculiarly situposals for insurance, to receive moneys, and to coun- ated, which policy contains general conditions which tersign, issue, and renew policies, subject to such are inapplicable to the subject-matter of the insurrules and regulations as may be adopted by the com- znce, such conditions will be ignored by the court in pany, and such instructions as may, from time to time construing the contract. Where priuted clauses in a be given by the management, they have authority to policy of insurance conflict with written clauses waive the immediate payment of premiums. Where therein, the former must yield to the latter. Harper an insurance company asserts that a policy has been v. Insurance Co., 22 N. Y. 443. If a policy of insurcancelled previous to a fire, it waives all right to in. ance be obscure in its meaning, it must be construed, sist that the policy has been forfeited because the as between the parties, most strongly against the insurproofs of loss came too late. Portsmouth Ins. Co. v. ance company which issued it. A. owned individuReynolds, 32 Grat. 613; Allegre v. Maryland Ins. Co., ally and owned in common with others a certain num6 Har. & J. 408; Graves v. Ing. Co., 12 Allen, 391; Nor. ber of barrels of petroleum placed for transportation & N. Y. Transp. Co. v. Ins. Co., 34 Conn. 561; Girard and storage iu the Tidioute and Titusville Pipe Line, Co. v. Ins. Co. of New York, 97 Penn. St. 15; Ben- limited. To protect himself from loss by assessment nett v. Ins. Co., 14 Blatchf. 4:22; 9 How. 196; May in case of fire, he took out a policy of insurance for Ing., $ 469. But whether there was, in this case, a $2,500 on petroleum, “his own or held by him in trust complete waiver or not, it is quite clear, under the for others.” One of the printed conditions of said circunstances in proof, that the plaintiff should be policy provided that “if the insured is not the sole, held to be excused for the neglect, if neglect it was, to absolute, and unconditional owner of the property inforward the proofs sooner. Cir. Ct., Dist. Ind., Feb., sured, then this policy to be void.” An assessment 1884. Ball, etc., Wagon Co. v. Aurora Fire and Mar. having been made on A. for a loss from fire. Held, Ins. Co. Opinion by Woods, J. (20 Fed. Rep. 232.) that the condition above set forth was not uider the

FIRE-CONDITION-INCUMBRANCE-JUDGMENT IS.- circumstances applicable, and that the insurance comA. held a policy of fire insurance for $800 upon certain pany was liable to the extent of the policy, upon all premises, issued in the usual form, and containing, oil destroyed in which A. had any interest whatever. inter alia, the following condition: “If after insur- The company in the above case was not liable for the ance * 本

* the property * shall be incum- loss of oil in which A. had no interest but which the bered by judgment, mortgage, or otherwise * owners had in writing requested him to insure before and the assured should neglect or fail to give written the issuing of the policy in suit. See Insurance Co. v. notice thereof, and pay such additional premium as Berger, 6 Wright, 285; Insurance Co. v. Mills, 8 id. 241; the company shall determine, and obtain written con- Hutchison v. Com., 1 Nor. 472. Sup. Ct. Penn., June sent of the company to a continuance of the policy, 9, 1884. Grandin v. Rochester German Ins. Co. Opinsuch insurance shall be void and of no effect." A. ion by Paxson, J. (15 Week. Notes, 1.) afterward gave a bond, with confession of judgment, and the same was entered of record without his knowl

CORRESPONDENCE. edge, and without notice to or consent of said company. The condition of the bond was duly complied

LAW OF JUDGMENT DEBTS. with, so that at no time could execution have issued

Editor of the Albany Law Journal: upon the above judgment, held, that such judgment

There are certain causes at work, especially ia our was an incumbrance upon the insured premises within large cities, which will result, it seems to us, sooner or the meaning of said policy and that upon a subsequent

later, in a great diminution of legal business. In the loss of the premises by fire there could be no recovery.

first place, nearly every large organization, like, for exThe terms of the policy are not ambiguous, and do

ample, the New York Stock Exchange, has a private

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