Imágenes de páginas

(2) This section was made for the protection of the

MAINE SUPREME JUDICIAL COURT ABparty under arrest. Plaintiff is not injured by the

STRACT.* delay, for the order of arrest remains in force. He can proceed with his action and all his remedies are

HUSBAND AND WIFE-- REPLEVIN DOES NOT LIE BEperfect, no matter how long the decision of the motion

TWEEN. — An action of replevin cannot be maintained to vacate the order of arrest is delayed, or even if it is

by a husband against his wife while the marital relanever decided. (3) Until an order is entered no mo

tion between them is in full force. Replevin is an tion can be made to vacate it. Gallt y. Finch, 24 How.

action of tort. It was decided in Abbott v. Abbott, Pr. 193; Whittaker v. Defosse, 7 Bosw. 678. The order of

67 Me. 304, that a wife after divorce could uot maintain reference may be entered by either party, and either an action for an assault committed on her during may proceed to execute it. Peet v. Cowenhoven, 14

coverture. A fortiori, an action of tort cannot be Abb. 56; Matter of Rhinebeck, etc., R. Co., 8 Hun, 34.

maintained by the one against the other during coverStafford v. Ambs. Opinion by James M. Smith, J. ture. Hobbs v. Hobbs. Opinion by Appleton, C. J.

PLEADING – ALLEGATION OF LIBEL PUBLISHED MARITIME LAW - BILL OF LADING – FOR WHAT AFTER SUIT BROUGHT, IRRELEVANT, ETC.- A libel GOODS OWNERS OF VESSELS RESPONSIBLE - AUTHORITY lous publication made after suit brought is not ad OF MASTER — NATURE OF INSTRUMENT - CONTRADICTmissible in evidence for the purpose of showing malice, ING BY PAROL. — Under a contract by a common carnor for aggravating the damages. Frazier v. McClos- rier for the carriage of goods by water, evidenced by a key, 60 N. Y. 337; Distin v. Rose, 69 id. 125. Yet in bill of lading in the usual form signed by the proper Corbin v. Knapp, 5 Hun, 197, circulation of the same agent in the ordinary course of business, the owners of libel after suit brought was allowed to be set up by the vessel are responsible ouly for such goods as are supplementary complaint. Therefore, an allegation of embraced in the bill of lading and delivered on board such a publication, though made before service of the the vessel, or into the actual custody of the master, or complaint, will be stricken out as immaterial and ir- such as were so delivered as and for those embraced in relevant. Storck v. Buffalo German Republican Print the bill before the vessel sails. It is not competent by ing Asso. Opinion by Beckwith, J.

evidence aliunde to show that such a bill of lading was

intended to or did embrace goods elsewhere so as to SERVICE OF IMPERFECT COPY OF ORDER. -- A de

make the owners responsiblo therefor. Ordinarily the fective copy of an order cannot be treated as a nullity

master has no authority to bind the owners by giving if its sense and object can be ascertained from its

a receipt for goods at any other than the accustomed terms and from the affidavits served. Thus, where the

place of delivery. There can be no constructive decopy read: “It is hereby ordered that the time for the

livery of goods so as to bind the owners for their cardefendant to interpose his answer therein be and the

riage except at such place, as where by constant same is hereby for ten days from the date thereof."

practice and usage they have received property left for Osgoodby v. Seifert. Opinion by Beckwith, J.

transportation. Rowley v. Bigelow, 12 Pick, 314; The WILL — CONTRACT — UNDUE INFLUENCE — DEVISE

Delaware, 14 Wall. 600; The Lady Franklin, 8 id. 3:29; - POWERS IN TRUST.- (1) In order to invalidate a

1 Chit. on Contr. 689 n. A bill of lading is an instruwill or contract on the ground of fraud or undue in

ment of a two-fold character. It is a receipt as to the fluence, it must be shown that certain parties made |

quantity and quality of the goods to be carried and a false and fraudulent statements to influence the de

contract as to their carriage. As a receipt it is open to ceased to execute the instrument, and which he relied

explanation or contradiction the same as other receipts. upon as true; or that they exercised such influence

Its acknowledgment of the apparent condition of the over him as amounted to moral coercion, which de

goods, though strong proof of its truth, is uo exception stroyed his independent action and free agency; or

to the rule. An admission of that which is not true that by importunity and persuasion, which he was una

is not binding except when an estoppel. In this case ble to resist, he was constrained to do that which was

the admission is not an estoppel because there has been contrary to his free will and real purpose. Brick v.

no assignment of the bill of lading, nor has the plaintBrick, 66 N.Y. 144; Cudney v. Cudney, 68 id. 148; Chil

iff acquired any new rights or changed his position in drens' Aid Asso. v. Loveridge, 70 id. 387. The mere fact

consequence of it. O'Brien v. Gilchrist, 34 Me. 554; that the parties were very desirous that the deceased

Tarbox v. Eastern Steamboat Co., 50 id. 339; Sears v. should execute the contract as he did, and were active in

Wiugate, 3 Allen, 103; Shepherd v. Naylor, 5 Gray, 591; procuring its execution, that it was highly advantageous

Blanchard v. Page, 8 id. 287; Richards v. Doe, 100 to them, and that it was an improvident one, and

Mass. 524; Hastings v. Pepper, 11 Pick. 43; Maryland its performance on the testator's part would re

Ins. Co. v. Ruden's Admr., 6 Cranch, 310; Nelson v. sult in serious loss to the estate, is not sufficient, al

Woodruff, 1 Black. 156; Ship Howard v. Wissman, 18 though the contract was executed in his last sickness,

How. 231; The Delaware, 14 Wall. 601; 2 Whart. on and two days before his death. (2) Devise and bequest

Ev., $ 1070; 1 Greenl. on Ev., $ 305. Witzler v. Collins. to the executors in trust to pay the income thereof to

Opinion by Danforth, J. the widow during her life, and upon her decease to NEGLIGENCE - WHEN CONTRIBUTORY, QUESTION FOR pay to plaintiff a legacy upon attaining his majority, JURY.- Whether a person travelling with a safe horse and in case of his death, without issue, before that and carriage, in the night without a light, upon a hightime, to defendant; and to convey and deliver the way wholly obscured by darkness, but in the vicinity residue of the estate to defendant. Held, that the of his residence, and over which he has travelled many power of alienation was not suspended beyond two years, is in the exercise of ordinary care, is for the jury lives in being at the testator's death. That immedi to determine under all the circumstances of the case. ately upon the death of the widow the entire residuary Stevens v. Boxford, 10 Allen, 25; Williams v. Clinton, estate would vest in defendant. Embury v. Sheldon, 28 Conn. 264; Norris v. Litchfield, 35 N. H. 271; Wood68 N. Y. 227. The trust estate would terminate with man v. Nottingham, 49 id. 387; Sleeper v. Sandown, the widow's death, and the other provisions of the will 52 id. 244; Shear. & Red. on Neg., $ 413 et seq. and notes. could be executed as powers in trust. Post v. Hover, Haskell v. Inhabitants of New Gloucester. Opinion by 33 N. Y. 593. Where certain provisions of a will can Virgin, J. not be fully upheld as creating valid trusts under the

PLEADING — DECLARATION AGAINST EXECUTOR DE statute, yet they will be executed as powers in trust

SON TORT. -The declaration against an alleged execuwhenever it can be lawfully and rightfully done. Jost v, Jost. Opinion by James M. Smith, J.

* To appear in 70 Maine Reports

tor is the same in form, whether the defendant be the in an error of judgment, or an entire misapprehension rightful executor, or executor de son tort. Myrick v. of official duty under the law. Western Railroad Co. Anderson, 68 E. C. L. 719. An executor de son tort is of Minnesota v. De Graff. Opinion by Cornell, J. to be declared against as if he were the lawful execu [Decided July 1:2, 1880.] tor, though the party died intestate. Brown v. Leavitt, 6 Foster, 495. The liability of such an executor is enforced against him as if he were rightful executor. WISCONSIN SUPREME COURT ABSTRACT. Shaw v. Hallihan, 46 Vt. 389. The executor de son tort

JUNE, 1880. may be sued and treated as the rightful executor. Stockton y. Wilson, 3 Peun. 129. Such has been the

BANKRUPTCY - DISCHARGE OF ONE PARTNER DOES rule in this State. Allen v. Kimball, 15 Me. 116; White

NOT RELEASE OTHER. — Plaintiff and defendant, who v. Mann, 26 id. 361; Lee v. Chase, 58 id. 432. Sawyer

were in partnership, dissolved, defendant taking the v. Thayer. Opinion by Appleton, C. J.

assets and assuming the debts of the firm, among

which were notes due F. Thereafter defendant was MINNESOTA SUPREME COURT ABSTRACT.

discharged in bankruptcy through composition pro

ceedings, F. signing the composition agreement and INJUNCTION -- MAY BE ISSUED IN ONE EQUITABLE

TONE EQUITABLE | receiving only a portion of the amount due. ThereACTION TO RESTRAIN ANOTHER IN SAME COURT.- A after plaintiff paid the balance due F. Held, that court of equity may in one action restrain proceedings plaintiff was not, by the bankruptcy proceedings, disin another action before it. The general rule as to in charged from liability to F., and his payment to F. junctions is thus stated in 3 Daniel's Ch. 17:25: “In.

was not voluntary. Ex parte Jacobs, 41 L. J. B. 34. junctions may be obtained to stay proceedings in other In McGrath v. Gray, 43 L. J.(N. S.), C. P. 63, the quescourts of justice, whether such courts are courts of tion whether a discharge of one of two partners, by a law or equity, or spiritual courts, or courts of admir- composition in bankruptcy, discharged his copartner, alty, or courts in a foreign country." This statement was decided in the negative, after a very full discussion restricts the rule to staying proceedings in other courts. of the case, and a very elaborate opinion by Ch. J. ColeThe power in one equitable action to restrain proceed ridge, who concludes as follows: “ Consequently, an ings in another equitable action in the same court is order of discharge in all these cases releases only the affirmed in Erie R. Co. v. Ramsey, 45 N. Y. 637. That debtor in whose favor it is given, and leaves his solvent case decides only on the power and jurisdiction to en co-debtor liable to be sued separately by a joint credjuin, but does not determine when it is proper to itor who has been a party to the release of the insolyexercise it. The same thing was decided in Prudential | ent debtor.” The same conclusion was arrived at by Assurance Co. v. Thomas, L. R., 3 Ch. App. 74, in the Supreme Court of New York in Mason & Hamlin which it was held that a bill of interpleader was a Organ Co. v. Bancroft, 1 Abb. N. Cas. 415. The arguproper case in which to enjoin proceedings in another ment in these cases is that the discharge had in baukequitable suit in the same court. And inasmuch as ruptcy, through a compromise, has the same and no the injunction operates only upon the parties to the greater effect as to sureties and joint contractors than action, and not upon the court in which it is pending, the discharge granted in such proceedings without we can see no difference, so far as the power to restrain compromise. The compromise proceedings are held is concerned, between an action in the same and one to be a substitute for the ordinary proceeding in bankin another court. In either case the power or juris ruptcy for the accomplishment of the same object, and dictiou exists. Mann v. Flower. Opinion by Gilfillan, in construing the whole statute together it must be C. J.

held that Congress did not intend to give any greater [Decided April 17, 1880.]

or other effect to the discharge obtained through the MANDAMUS – WILL NOT ISSUE AGAINST EXECUTIVE

compromise proceedings than are given to the disOF STATE.- Whether under the Constitution of Min

charge given in the ordinary way; and as the statuto nesota any officer of the executive department of the

provides that the ordinary discharge shall not affect State government can be subjected to judicial control

the creditor's right to proceed against the sureties or and interference in the performance of an official duty

joint contractors for the recovery of his debt, the disis a question which has been before this court in

charge obtained through the compromise does not imdifferent forms and at different times for considera

pair that right. Knapp v. Anderson, 15 B. Reg. 316; tion and decision, and the holding has uniformly been

Hall v. Fowler, 6 Hill, 630; Holyoke v. Adams, 10 B. against the existence of any such jurisdiction or power

Reg. 270; Towle v. Robinson, 15 N. H. 408; In re Lers, in the courts. In re Application of Senate, 10 Mimn.

1 B. Reg. 220; Payne v. Able, 4 id. 327; In re Stevens, 5 78; Rice v. Austin, 19 id. 104; State ex rel. Treasurer of

id. 112; Done v. O'Neil, 6 Nev, 155; Winslow v. ParkMille Lacs County v. Dike, State Treasurer; State ex

hurst, 1 Root, 208; Blumenst. Bankr. 544, 545. Hill v. rel. Wright v. Jennison, Secretary of State, 20 id. 363;

Truiner. Opinion by Taylor, J. St. Paul & Ch. R. Co. v. Brown, 25 id. 517, 573, 574. The MUNICIPAL CORPORATION — NOT LIABLE FOR INreasons for the holding are fully stated in Rice v. Aus JURY FROM DEFECTIVE APPROACH TO BRIDGE NOT tin, and Treasurer v. Dike, supru. It rests upon the OWNED BY IT IN ITS LIMITS. — A bridge was, with its constitutional principle that each of these departments approaches, owned by a corporation which took toll of goverument is entirely independent of the others, for its use. It was purchased by the county in which so that neither can be made amenable to any other for it was located and made a free bridge and maintained its action or judgment in discharging the duties im by the county. One of the approaches was in the city posed upon it, whatever their sources or nature. The of Centralia, within the municipal limits. Some slight principle applies to the performance of all official du repairs had at one or more times been made by tho ties, whether imposed by the Constitution or by legis street commissioner of Centralia, upon the roadway lative enactment simply, or whether they are of a and sidewalk of such approach, but it did not appear character strictly ministerial, or such as call for the | that they were authorized by the municipality. The exercise of discretion and judgment alone. It fol- | public used these approaches in the same manner as a lows that every act done or attempted to be done by public street of the city. Held, that the city was not avy officer of the executive department, in his official | liable for an injury to one passing over the sidewalk of and not in his individual capacity, is shielded from all the approach, caused by a defect in such sidewalk. judicial interference or coutrol, either by mandamus The county and not the city was bound to keep the or injunction, even though such act may be founded I bridge in repair. The approaches being for the sole purpose of enabling the public to reach the bridge is cutting timber on his own land, by mistaking the must be treated as part of the bridge itself. And the line of division, cuts on his neighbor's land; and yet, fact that the sidewalk was used as a public thorough- in both cases, the law would hold them as trespassers." fare would not render the city liable. State v. Super Cooley on Torts, 348, lays down the same doctrine. visors of Wood, 41 Wis. 28. The liability for injuries Hazleton v. Week. Opinion by Cole, J. resulting from the want of repairs to a bridge or other highway, under the statute, rests alone upon the mu

INSURANCE LAW. nicipality upon which the law casts the duty of making the repairs, and not upon the mere fact that the highway is within the bounds of the municipality. This is

FIRE POLICY - AGENCY — AUTHORITY OF AGENTthe doctrine laid down in Houfe v. Town of Fulton, 34

NON-PAYMENT OF PREMIUM — WAIVER. — In a fire polWis. 608-617. In that case the late Chief Justice Dixon

icy was a condition rendering it void if default was says: “It is, of course, a proposition generally correct,

made in payment of a premium vote for thirty days that a town is not liable for damages caused by an

| after due. Held, that an agent of the insurance cominsufficiency, unless the place where the injury was

pany authorized only to receive applications for insurreceived and the insufficiency exists, was a lawful

ance and collect and transmit premiums had no aupublic highway, which it was the duty of the town to

thority to extend the time of payment of a premium keep in a state of reasonable safety and repair." The

note so as to avoid a forfeiture by reason of a failure cases of Johnson v. City of Milwaukee, 46 Wis. 568, and

to pay such premium note within thirty days after James v. City of Portage, 5 N. W. Rep. 31, distin

maturity. An agent employed to collect a claim does guished. Bishop v. City of Centralia. Opinion by

not thereby have authority to bind his principal even Taylor, J.

to grant an extension of time. Hutchings v. Munger,

41 N. Y. 155; Kirk v. Hiatt, 2 Cart. (Iud.) 322; Coming TRESPASS — CUTTING TIMBER – WHEN PURCHASER v. Strong, 1 id. 329. Where an agent is intrusted with FROM WRONG-DOER WITHOUT KNOWLEDGE LIABLE. — a policy for the purpose of delivering it, and does deH. entered upon lands of plaintiff without authority | liver it, though in violation of a provision of the policy and cut logs thereon. These logs ho sold to defendant, as to prepayment, it has been held that the assured has who did not know that H. was a trespasser, but sup a right to assume that prepayment has been waived. posed H. owned the logs, and defendant went upon Young v. IIartford Fire Ins.Co., 45 Iowa, 377; Bowman plaintiff's land and removed them. Held, that defend- | v. Agricultural Ins. Co., 59 N.Y. 521; Mississippi Valley ant was liable to plaintiff in trespass for the damago Ins. Co. v. Neyland, 9 Bush, 430: Sheldon v. Connectidone by the cutting and removal of the logs. In Dex cut Ins. Co., 25 Conn. 9. But the waiver rests, not ter y. Cole, 6 Wis. 319, an action of trespass, it ap simply upon something said by the agent, which could peared that the defendant, a butcher in Milwaukee, be construed into an agreement of waiver, but upon was driving sheep he had purchased toward the city, | something done by the agent which he was employed upon the highway, when they became mixed with a to do. The authorities all agree that a mere agreement small lot belonging to the plaintiff, running at large to waive prepayment will not put a policy in force upon the high way. The defendant drove the whole where it is not delivered. It is therefore the delivery flock into a yard near the road, for the purpose of part of the policy which constitutes the ground of waiver. ing them, and did throw out a number which he did | It is true that in Hallock v. Commercial Ins. Co., 2 not claim, and pursued his way with the remainder to Dutcher, 268, a recovery was allowed, although the his slaughter-house, where they were slaughtered in | premium had not been paid, nor the policy delivered. his business. The evidence tended to show, and the But the agreement for the insurance had been made jury found it did show, that some four of the plaintiff's and the premium tendered, which the agent declined to sheep remained in the flock, and were driven to Mil receive because the policy was not made out. In waukee and slaughtered. The court maintained the Trustees of Baptist Church v. Brooklyn Ins. Co., 19 action on the ground that any unlawful interference N. Y. 305, there was a parol contract for a renewal, but with, or acts of ownership over, property, to the ex no payment of the renewal premium. It was held that clusion of the owner, was sufficient to sustain the the plaintiff was entitled to recover. That case was action, and that it was not necessary to show actual or substantially like the case at bar, except that the conforcible dispossession of property; that the intent did tract was made by the officers of the company, and not not necessarily enter into the trespass; that it was by an agent. The principle decided therefore was sufficient if the act done was without a justifiable materially different. Nor does the case at bar come cause or purpose. But, perhaps, the case nearest in within the rule held in Viele v. Germania Ius. Co., 26 point to the one at bar is Higginson v. York, 5 Mass. Iowa, 9. That was a case where the risk was iucreased 341. The head note thus states the case: “A having by the act of the assured contrary to the provisions of entered the close of B, and having cut a quantity of the policy. It appeared, however, that the agent ascord-wood, sells the same to C, who hires D, the master sented to the use of the premises, by reason of which of a coasting vessel, to go in company with C and the risk was increased. Such assent was held to be a transport the wood to market. D was held liable for waiver of the forfeiture. There is nothing in this the value of the wood in an action of trespass quare doctrine that affords support to the proposition that clausum fregit, brought by B, although it was agreed an agent who has not power to make a contract of he was ignorant of the original trespass committed by insurance can bind the company by his contract to an A." In Hobart v. Hagget, 12 Me. 67, an action of indefinite postponement of the payment of a renewal trespass for taking an ox belonging to plaintiff, it was premium, and keep the policy in force in contravenproved that defendant met plaintiff in the street, and tion of its provisions. In Bonton v. American Mut. bought of the latter an ox, which plaiutiff directed Life Ins. Co., 25 Conn. 542, the premium was actually him to go and take out of his inclosure, and defendant, paid to the agent, though after the day it fell due. by mistake, took the wrong ox. The defendant was It was held that though the agent had power to make held liable. The court say: "The taking of the plaint the contract of insurance, and had power to receive iffs ox was the deliberate and voluntary act of the tho premium when due, he had no power, without an defendant. He might not have intended to commit express authorization, to bind the company by receivtrespass in so doing. Neither does the officer, when, ing it after it was due. Substantially the same doctrine on a precept against A, he takes, by mistake, the prop- was held by implication in Insurance Co. v. Norton, erty of B, intend to commit a trespass; nor does he | 96 U. 8. 334. In that case a recovery was allowed where intend to become a trespasser, who, believing that he | the agent had extended the time of payment of premium, but the right of recovery was made to turn upon Life Ins. Co., 25 Coun. 207. (2) A condition of the polthe ground that the jury was justified in inferring icy is that any interest in property insured not absofrom the practice of the company au authorization of lute, or that is less than a perfect title, must be reprethe ageut to extend the tiine of payment. There was sented to the company and expressed in the policy. no pretense that the agent, by virtue of his power to The insured has the see simple estate in the building, make the contract of insurance and collect premiums, conveyed by deed reserving a lien for the purchasecould extend the time of payment. There is a class of money, about $350; the house worth $1,700. The coli. cases where a receipt of premium by an agent, paid dition has reference to the quantity of the interest or when due, has been held to be a waiver of a forfeiture estate, which is measured by its duration. Or if not, incurred by a violation of a condition of the policy. the words used cannot have been intended to guard Seo Walsh v. Ætna Life Ins. Co., 30 Iowa, 133. But against mere incumbrances. (3) Tho provision in a where an agent, who is authorized to receive prem policy requiring “immediate notice," in case of loss, iums, receives a premium paid when due, he is acting or as in some policies, what is equivalent, notice within the scope of his general authority. The assured “forthwith," inust have a reasonable construction. It has a right to suppose that the payment is valid ; that has always been held, it is said, that due diligence, unit becomes a payment to the company, and that the der all the circumstances, is all that is required. New company by receiving it, if it receives it with knowledge York Central Ins. Co. v. National Protection Ins Co., of the forfeiture, waives the forfeiture. Wo have been 20 Barb. 468, 475. Virginia Sup. Ct. of Appeals. Janunable to discover any rule in the law of insurance |uary term, 1879. Woody v. Old Dominion Insurance which would justify us in holding that an agent can Co. Opinion hy Brooks, J.; Staples, J., dissented. bind the company by his consent to a postponement of (Appearing in 31 Grattan's Reports.) a payment of a renewal premium, and keep a policy in force contrary to its provisions, unless he is ex

CRIMINAL LAW. pressly authorized to do 80. Iowa Sup. Ct., April 22, 1880. Critchett v. American Insurance Co. Opinion

FALSE PRETENSES -- EVIDENCE — INTENT — PROOF by Adams, C. J.; Beck, J., dissented.

OF OTHER ACTS OF LIKE CHARACTER.-U pon the prose- LOSS AFTER PREMIUM PAID BUT BEFORE ISSUE cution of T. for obtainiug goods from M. & Co. upon OF POLICY - EQUITY MAY ENFORCE PAYMENT -- MIS false preteuses, evidence that the accused, in the same REPRESENTATION -- TITLE - NOTICE OF LOSS. -- (1) city and at or about the same time, purchased goods Where a contract for the insurance of a building has from other parties, B. & O., upon the same false prebeen made with the agent of an insurance company

tenses, is admissible to show the intent of the accused having authority to issue policies, and the premium in making the representations to M. & Co., but not as has been paid, but before the policy is issued the build | proof that the accused had committed other offenses ing is consumed by fire, a court of equity has jurisdic not charged in the indictment. And this, though the tion to enforce the payment of the policy at the suit of statute has made the obtaining goods ou false pretenses the assured against the insurance company. Tayloe v.

larceny. Whenever the intent or guilty knowledge of Merchants' Fire Ins. Co., 9 Hlow. (U. S.) 390; Com. a party charged with crime is a material ingredient in Mut. Marine Ins. Co. v. Union Mut. Ins. Co., 19 id. the issue of the case, other acts and declarations of a 318; Post v. Ætna lus. Co., 43 Barb. 351; Angell on similar character tending to establish such intent or Ins., $ 31; Wood on F. Ins., $ 12. The terms of the in knowledge are proper evidence to be admitted, prosurance having been agreed upon by the applicant for vided they are uot too remotely comuected with the insurance and the agent of the insurance compauy, the offenso charged; and what are the limits as to the time applicant tenders to the agent the money for the pre

| and circumstances is for the court, in its discretion, to mium; but the agent living in the house, and being determine. Upon an indictment for maliciously indebted to the applicant for rent, tells him he has in shooting at the prosecutor, it has been held proper to his hands money belonging to bim for rent, and will show that the accused had twice shot at the prosecu. credit him for that amount. This was a valid payment | tor the same day, for the purpose of rebutting the idea of the premium. Hallock v. Commercial Ins. Co., 2 of accident, and of establishing the willful iuteut. Dutch. (N. J.) 298. Ilere plaintiff tendered to an agent, Reg. v. Voke, Russ. & Ry. 531. And so, upon a proswho was applied to for insurance, the premium. aud | ecution for administering sulphuric acid to horses. the agent declined it, and said he would consider it with intent to kill them, evidence is admissible that paid, and leave it with plaintiff, who was a banker the prisoner had frequently mixed sulphuric acid with with whom the agent kept his accounts. The appli | horses' corn. Reg. v. Mogg, 4 C. & P. 364. Upon an cation was sent by the agent to the company, the risk indictment for libel, the publication of other libels was accepted to commence from a previous day, and not laid in the indictment may be given in evidence to the policy signed was forwarded by inail to the agent:

show the quo animo the defendant made the publicabut it turned out that the building insured was de tion in question. 1 Greenl. on Ev., & 53. Indeed, the stroyed by fire on the very day the policy was signed, cases upon this subject are almost innumerable, as may and two hours before it was so signed. The company, be seen upon examination of the books on criminal being ignorant of the fire when the policy was signed. | law. 3 Russ, on Crimes, SS 285, 287, 288; Roscoe on Cr. countermanded the policy. The company was held Ev. 86, 94; Bottomley v. United States, 1 Story, 135; estopped from denying that it had received the pre Cook v. Moore, 11 Cush. 213. In such cases it has been mium. See, also, New York Cent. Ins. Co. v. National held that even the admission of the accused that the Protection Ins. (o., 20 Barb. 468; Chickering v. Globe act was done with a fraudulent intent did not preclude Mut. Life Ins. Co., 116 Mass. 321; Goit v. National | the prosecution from proving it. Commonwealth r. Protection Ins. ('0., 25 Barb. 189. In Bouton v. Amer McCarthy, 119 Mass. 351; Priest v. Groton, 103 id. 530. ican Mut. Life Ins. Co., 25 Conn. 542, it was decided In civil cases the decisions are abundant which hold that an agreement, made in good faith between an in that on the question of intent to defraud by false presurance agent having authority to receive an insurance tenses, other acts or representations of a like character premium and the insured, that the agent shall become done at or about the same time with that in issue are personally responsible to his principals for the amount admissible with a view to the quo unimo. McKinney v. i of such premium, and the insured his personal debtor Dingley, 4 Greenl. 172, is an example. There the suit) therefor, constitutes a payment of the premium as be- was to avoid a sale on the ground of the false and tween the insured and the insurance company. The fraudulent conduct of the purchaser in representing same principle was affirmed in Sheldon v. Coun. Mut. ( himself to be a mau of good property and credit when

he was not; and it was held proper for the vendor to

THROOP'S JUSTICES' MANUAL. give evidence of similar false pretexts successfully used The New York Justices' Manual, containing all the Laws of to other persons in the same town about the same time the State, relating to the official tenure and duties of a to show a general scheme to amass property by fraud. Justice of the Peace, and the Proceedings in Civil Cases In Hennequin v. Naylor, 24 N. Y. 139, for the purpose before him, in force on the first of September, 1890 of proving the fraud the vendor relied in part upon the

with Explanatory Notes and an Appendix of Forms, by

Montgomery H. Throop, late one of the Commissioners fact that the defendant had purchased of several per

to revise the Statutes. Albany: John D. Parsons, Jr., sous large bills of goods, the plaintiff, among the rest,

1880. Pp. xvi, 624. just on the eve of suspension. See, also, Whittier v. Varney, 10 N. H. 291, 477; Murfey v. Brace, 23 Barb.

The enactment of the nine chapters Code bill has 561; Allison v. Matthieu, 3 Johns. 234; Olmsted v.

made an entirely new body of law appertaining to Hotailing, 1 Hill, 317; 1 Phillips' Ev. 653, 73. In

justices' courts. The design of this book is to lay becriminal cases the same rule has been followed. In

fore the justice of the peace and practitioners in his Commonwealth v. Eastman, 1 Cush. 189, an indict

court every law concerning every subject in respect to meut for obtaining goods or money under false pre

which the latter may call on the former to act. The tenses, evidence of other purchasers about the time of

result of our examination is a conviction that it is the alleged offense was held admissible to prove intent.

admirably planned and faithfully executed. No man This case was followed in Commonwealth v. Tucker

in the State can be better qualified by experienceman, 10 Gray, 173: Commonwealth v. Jeffries, 7 Allen,

probably none so well — than the author for this par548. See, also, Wood v. United States, 16 Pet. 342;

ticular task. There seems to be no omission, so far as Bielschofsky v. People, 3 Hun, 40; Reg. v. Roebuck, 2

we can judge, and with this manual before him the D. & B. 24; Queen v. Frances, L. R., 2 (r. Cas. Res.

justice can be satisfied that he has the whole body of 128. Sup. Ct. of Appeals, Virginia. Trogden v. Com

the law. An excellent index and 160 forms will monwealth. Opinion by Staples, J. (Appearing in 31

enable him and practitioners to find and apply these Grattan's Reports.)

laws. The work should be in the hands of every

person who has any interest in the courts of our jusNEW BOOKS AND NEW EDITIONS.

tices of the peace and the enormous mass of litigation

which is there disposed of. KERR ON INJUNCTIONS.

KENNY'S ENDOWED CHARITIES. A Treatise on the Law and Practice of Injunction. By William Williamson Kerr, A. M. Second American, from

The true Principles of Legislation with regard to Property the second English edition. Edited, with notes and

given for Charitable or other Public Uses. By Courtney references to American cases, by Wm. A. Herrick.

Stanhopo Kenny, LL.M., of Lincoln's Inn, Fellow

and Law Lecturer of Downing College, Cambridge, EngBoston: Little, Brown & Co., 1880. Pp. Ixiv, 644.

land. Pp. 274. London: Reeves & Turner, Chancery THE former American edition of this work was pub Lane, 1880. I lished in 1871, and contained 736 pages. The editor

The matter of this book was written as an essay for of the present edition has wisely omitted some matter

the Yorke Prize of the University of Cambridge, Enghaving exclusive reference to English statutes, and has

land. This is one of a class of books that we think, inserted about one hundred pages on injunctions in

and are glad to think, is becoming larger. It is not equity to restrain proceediugs at law. The subject is

the result of the desire to make a book so much as of of the first importance, and has received a great deal

a desire to express the thoughts and conclusions of of adjudication in modern days. The equitable power

study of the author upon a subject that has attracted of the court is a variable and elastic one, incapable of

and interested him and led him to reflection. It treats fixed and strict bounds, but dependent on times,

of property given for charitable or other public uses. places, and the differing characteristics of magistrates.

It was written as a contribution to the discussion on There is no branch of the law less dry, or appealing

the question of charity reform, and from the position more to the inventive and metaphysical faculties. Mr.

that endowed charities have done more good than Kerr's work was founded on English autborities, and

harm; that they should be protected and encouraged; its value for the American lawyer must in large degree

but at the same time superintended and controlled. depend on the editor. The original work was a sound,

Of course from the situation of the author it is adjudicious and well-written one, and the citations by

dressed to the British public, and deals with the questhe editor seem to be copious, but by no means ex

tion mostly as it is of practical importance in Great haustive. Perhaps it is impracticable to exhaust the

Britain. Yet it is a work of interest to us in this subject, for it trenches on many other topics of the

country, where as wealth accumulates and men delaw, which have been separately and elaborately

cease, large and still larger sums are left for public treated, as for example, copyright, nuisance, patents,

uses. Nor is it without discussion of the question as trade-marks, etc. In describing the editor's labors we

we are concerned with it, and there are in it importuse the word citations rather than annotations, as the

ant suggestions worthy of consideration by the lawyer more correct designation. With this work, and Mr.

and legislator of these States, notably as to the conHigh's, the practitioner cannot go astray, and he will

nection of the subject with the growth of ecclesiastical probably not be safe without both.

wealth and power. The essay starts with stating three

peculiarities of charitable endowments, viz., indefiWHARTON'S CRIMINAL EVIDENCE.

niteness, meritoriousness, and perpetuity, and thereIn this volume Dr. Wharton completes at once his from deduces that there is the need of supervision, grand works on Evidence and Criminal Law, both of restriction and revision, by governmental power. It which we have so fully spoken of that detailed comment discusses the question whether those endowments on this is unnecessary. It is sufficient to say that in our should be prohibited by law, and answers it in the opinion it is quite unrivalled; upiting philosophy with negative. It points out the measures that the lawcommon sense in treatment; couched in an exact and giver should take for restriction, supervision and refelicitous style; and so comprehensive and exhaustive | vision. It claims that there should be restriction by as to embrace all important decisions, from the earliest law upon the purposes; the nature and extent of the days of our law to the present year in its examina- subject-matter; the persons who may give and take: tions. The volume contains 334 pages, with independ- the time when the gift may be made and when it may ent tables of contents and cases, and index, and is take effect. the solemnities and the publicity that published by Kay & Brother, Philadelphia.

should go with it. That there should be supervision,

« AnteriorContinuar »