« AnteriorContinuar »
trade-mark is acquired by its use, which the law does Wood, 20 Ohio, 26, the name of the grantor in a deed not require shall be continued for any prescribed was incorrectly given. In Parrett v. Shaubhut, 5 Minn. time. The trade-mark is often intended to indicate 3:23, the mistake consisted in the omission of one of the the quality of the goods, and it is unlawful to ap subscribing witnesses, whereby the deed was made to propriate it to indicate goods of a quality equal to | appear insufficiently executed. In Shepherd v. Brubthose manufactured or sold by its proprietor. Tay- | halter, 13 Ga. 443, the name of the mortgagor was not lor v. Carpenter, 11 Pai. 292; Coats v. Holbrook, 2 appended to the mortgage as recorded. Iu Sawyer v. Sandf. Ch. 586. The use of a trade-mark, ignorantly Adams, 8 Vt. 172, the deed was recorded in an unused or innocently, with no intention to defraud or deceive book and not indexed. Terrell v. Andrew Co., 44 Mo. the proprietor or the public, will be restrained by 309, was another case of error in giving in the record chancery. Millington v. Fox, 3 My. & C. 338; Cartier v. the amount of the mortgage, and the following are Carlisle, 31 Beav. 292. In order to authorize the inter cases in which the thing conveyed was misdescribed : ference of chancery it is not necessary that the trade- Chamberlain v. Bell, ñ Cal. 292; Miller v. Bradford, 12 mark should be copied with the fullest accuracy. Anim- | Iowa, 14; Baldwin v. Marshall, 2 Humph. 116; Brydon itation which varies from the original in some respects | v. Campbell, 40 Md. 331; Breed v. Conley, 14 Iowa, will be restrained. The rule is that if the imitation is | 269; Gwinn v. Turner, 18 id. 1. This court has also calculated to deceive and may be taken for the original, held that a sherift's notice of attachment was ineffecits use will be restrained. Filley v. Fassett, 44 Mo. 173; | tual where by mistake it failed to describe the land Boardman v. Meriden Brittania Co., 35 Conn. 402; | attached. Barnard v. Campau, 29 Mich. 162. On the Falkenburg v. Lacy, 35 Cal. 52; Woodward v. Lazer, other hand, it has been held in Illinois, under a statute 21 id. 448; Sexe v. Provezende, L. R., 1 Ch. App. 192; which gave a deed effect as against subsequent bona Wotherspoon v. Currie, L. R., 5 Eng. & Ir. App. 5:8; fide purchasers from the time it was filed for record, Bradley v. Norton, 33 Conn. 157; Davis v. Kendall, 2 that the grantee was not affected by errors in recordR. I. 566. See, also, 2 Hill. on Torts, 62; 2 Story's Eq. ing, he having done all that the law required of him Jur. (11th ed.), $ 951; High on Injunc., ch. 16; Addison when he had filed his deed with the recorder. Merrick on Torts (4th ed.), 874. Shaver v. Shaver. Opinion by v. Wallace, 19 III. 486; Polk v. Cosgrove, 4 Biss. 437; Beck, J.
Riggs v. Boyland, 4 id. 445. So, in Alabama, under a
statute which made a conveyance “ operative as a recMICHIGAN SUPREME COURT ABSTRACT. ord” from the time it was left for registration, it was
decided that a mortgage was a valid lien for the JUNE, 23, 1880.
whole amount, though incorrectly recorded as for
a smaller sum. Mims v. Mims, 5 Ala. 23. The RECORD -- MISTAKE OF REGISTER IN RECORDING following are cases which recognize the rule that DOES NOT PREJUDICE MORTGAGEE.— The statutes of filing a deed for record gives it effect as a reMichigan held to provide that a mortgage is consid cord. Dubose y. Young, 10 Ala. 365; Bank of Kenered recorded when received by the register of deeds tucy v. Hagan, 1 A. K. Marsh. 306. The different confor record. This officer is required to keep an entry book clusions in these cases are the result, in the main, of of mortgages in which are set forth the date of recep differences in the statutes under which the records tion of the instrument,the names of the mortgagors and have been made or attempted, and perhaps if all the mortgagees, township, where lands are situated, etc. statutes had been alike, all the decisions would have Afterward the instrument is to be recorded at length been harmonious. Sinclair v. Slawson. Opinion by in a book kept for the purpose. A mortgage was re Cooley, J. ceived and the proper entries made by the register in the entry book. In copying the same at length in the WAIVER—APPEARANCE IN JUSTICE'S COURT.-In an proper book the name of the mortgagee was omitted. action in a justice's court the court had lost jurisdicHeld, that the mortgage was recorded so as to affect a tion on account of an adjournment from time to time subsequent purchaser with notice. Under a New in the absence of defendant. Upon an adjourned day York statute, which provided that no mortgage should the defendant's attorney answered to the case and ap“defeat or prejudice the title of any bona fide pur plied for a postponement to a later hour the same day. chaser, unless the same shall have been duly regis
The plaintiff's attorney objected and the application tered,” Chancellor Kent held that “the registry is
was denied. The defendant's attorney then stated notice of the contents of it and no more, and that the
that he appeared specially to object to further proceedpurchaser is not to be charged with notice of the con ings. Held, that the defect in jurisdiction was waived tents of the mortgage any further than they may be by the acts of defendant's attorney. If he had apcontained in the registry. The purchaser is not bound peared specially and for the purpose of assisting the to attend to the correctness of the register. It is the suit on account of previous irregularities, there would business of the mortgagee; and if a mistake occurs to have been no waiver. But if the appearance was for an his prejudice, the consequences of it lie between him other purpose, and with the view to prolong the pendand the clerk, and not between him and the bona fide | ency of the action, and it contemplated a step adapted purchaser.” The statute, he adds, intended the regis to a case regularly on foot, it was a waiver of the prior try “as the correct and sufficient source of informa defects. Falkner v. Beers, 2 Doug. 117; Clapp y. tion; and it would be a doctrine productive) of im
Graves, 26 N. Y.418; Briggs v. Humphrey, 1 Allen, 371; mense mischief to oblige the purchaser to look at his
Rittenauer v. MoCausland, 5 Black, 510; Heeron v. peril to the contents of every mortgage, and to be Beckwith, 1 Wis. 17; State v. Messmore, 14 id. 115; bound by them, when different from the contents as U. M. T. Co. v. Whittaker, 16 id. 220; Baizer v. Larch, declared by the registry. The registry might prove 28 id. 268; Abbott v. Sample, 25 Ill. 107; Swift v. Lee, only a snare to the purchaser, and no person could be 65 id. 336; Ulmer v. Hiatt, 4 Greene, 439; Clark v. safe in his purchase without hunting out and inspect Blackwell, id. 441; Deshler v. Foster, 1 Morris, 403. ing the original mortgage, a task of great toil and The motion for a continuance was a step in the cause, difficulty. I am satisfied that this was not the inten and one which meant that the action should be prestion, as it certainly is not the sound policy of the stat-| ently kept on foot, and there was nothing to qualify ute." Frost v. Beekman, 1 Johns. Ch. 288, 298. The it. The subsequent explanation did not abate its effect. mistake in the record in that case consisted in a misre It was not made until the motion was denied, and cital of the amount secured. The case has been often at that time the representation of the parties bad befollowed. In Sanger v. Coague, 10 Vt. 555, the error come complete, and the irregularities were waived. consisted in misdescribing the land. In Jennings v. | Lane v. Leach. Opinion by Graves, J.
cussing the meaning of the terms reference was made to a school-house in vacation as not ceasing to be occu
pied for school purposes. Michigan Sup. Ct., April 21FIRE POLICY -- ACTION BY INSURANCE COMPANY
1880. Stupetzki v. Transatlantic Fire Insurance Co. AGAINST ONE NEGLIGENTLY CAUSING FIRE - JOINDER OF PARTIES.--- The law is well established that an in
Opinion by Campbell, J. surance company which has been compelled to pay, or — TOTAL LOSS — WHAT 13.- In an action on a polhas paid, a loss covered by its policy, has, after such | icy which had a provision for an appraisement of payment, a right of action against the personwho wrong. “damage to property not totally destroyed" there was fully caused the fire and loss to the amount such insur- a dispute as to whether there was a total or a partial ance company paid even without any formal assignment loss. Held, that a charge to this effect was not error: by the assured of his claim against the party primarily | "A total loss does not mean an absolute extinction. The liable. And the courts have likewise been very firm question is whether all the parts aud material composin supporting the right of the insurance company to | ing the building are absolutely or physically destroyed, bring an action in the name of the assured, and will but whether, after the fire, the thing insured still exnot allow the latter to defeat such action even by a re ists as a building. Although you may find the fact lease or discharge of the person by whose act the dam that after the fire a large portion of the four walls was age was occasioned. Hart v. Western R. Co., 13 Metc. left standing, and some of the iron work still attached 99; Monmouth County Fire Ins. Co. v. Hutchinson, 21 thereto, still if you find that the fact is that the buildN. J. Eq. 107; Connecticut Fire Ins. Co. v. Railway ing has lost its identity and specific character as a Co., 73 N. Y. 339. These authorities distinctly affirm building, you may find that the property was totally this position on the ground that the assured, by ac destroyed within the meaning of the policy." In Nave cepting payment of the insurer, subrogates the latter | v. Home Mutual Ins. Co., 37 Mo. 430, it was held that to his rights, giving such insurer full authority to sue a policy of insurance upon a building is an insurance the party causing the loss in his name. And where upon the building as such, and not upon the material the right to maintain an action for a loss by fire of which it is composed. See, also, Huck v. Globe Ins. through defendant's negligence is assigned to several Co. (Mass.) Ins. L. J., Dec. 1879. In Insurance Co. v. insurance companies jointly, such companies may | Fogarty, 19 Wall. 644, which was an action on a policy maintain the action jointly. Wisconsin Sup. Ct., June, of marine insurance, the Supreme Court of the United 1880. Swarthout v. Chicago & North-western Railroad States held that the doctrine of an absolute extinction Co. Opinion by Cole, J.
of the thing insured is not the truo doctrine, even in - VACANCY OF DWELLING — TEMPORARY ABSENCE
that class of cases where the rule is stricter than in OF FAMILY NOT. – By a condition in a fire policy on
cases like the present. In the course of the opinion, a dwelling it became void if the house should “become
in speaking of the case of Hogg v. Augusta Ins. Co., 7 vacant or unoccupied without the assent of the com
How. 595, where there was an insurance of jerked pany. The insured used the premises as his own
beef of 400 tons, part of which was thrown into the dwelling. About ten days before a fire by which it
sea, and part of the remainder so seriously damaged was destroyed he received a dispatch summoning him
that the authorities of the city of Nassau refused to to the bedside of his dying daughter, in another State,
allow more than 150 tons of it to be landed, the court and with his wife left the house alone, and did not re
say: “It will be observed that in this case, as in the turn until after the fire. A son who lived near by, un
case of Morcardier v. Chesapeake Ins. Co., 8 Cranch, der the direction of insured, visited the house daily
47, the destruction spoken of is destruction as to speduring his absence to look after the premises and stock
cies, and not mere physical extinction. Indeed, philthereon. Held, that the house was not “ vacant or
osophically speaking, there can be no such thing as abunoccupied, within the terms of the policy. It would
solute extinction. That of which the thing insured not convey to an ordinary mind the idea that a house
was composed must remain in its parts, though deis vacant or unoccupied when it has an inhabitant who
stroyed as to its specific identity. In the case of the intends to remain in it as his residence, and who bas
jerked beef, for instance, it might remain as a viscid left it for a temporary purpose. If the phrases were
mass of putrid flesh, but it would no longer be either used in their strict legal sense no one would imagine
beef or jerked beef. The case of Judah v. Randall, 2 that the tenant was not such an occupant as would be
Cai. Cas. 324, where a carriage was insured and all lost liable to the responsibilities attached by law to occu
but the wheels, is another illustration of the principle. pants, or that there was such a vacancy of possession
A part of the carriage - namely, the wheels, a very im. as would suspend possessory rights. It would be bur
portant part - was saved; but the court held that the glary to feloniously break and enter the house, and ar
thing insured - to wit, the carriage - was lost; that it son to maliciously burn it. There may be less occasion
was a total loss. Its specific character as a carriage was to care for a house in which no one lives, than
gone." California Sup. Ct., March 29, 1880. Williams tenanted, but a person temporarily absent will usually
v. Hartford Fire Insurance Co. Opinion by Ross, J. take some pains to have his premises kept under oversight, and in the present case such provision was made
RECENT ENGLISH DECISIONS. for the domestic animals, as well as for the house itself. It would be regarded as singular doctrine to | AGENCY-SALE ON CREDIT TO AGENT BELIEVED TO BE hold that families leaving their houses on excursions A PRINCIPAL.- Although a seller, who has given credit or other temporary occasions, cease to occupy them. In to an agent, believing him to be a principal, cannot ('ummins v. Agricultural Ins. Co., 67 N. Y. 260, it was have recourse against the undisclosed principal, if the held that a removal by a son and his family to his principal has bona fide paid the agent at a time when father's house, iu the neighborhood of his own, to re the seller still gave credit to the agent, nevertheless if main with his mother in his father's house while she at the time of dealing in the goods the seller was inneeded their company, but with the intention of re formed that the person who came to buy was buying turning to his own house, which was not dismantled, for a principal, but was not told who that principal was not a vacating by removal of the son's house, al was, he may afterward have recourse to the undisthough the absence actually continued about three closed principal, who will be liable even after payment months. It was also held in Whitney v. Black River to his agent, unless he has been reasonably led to infer Ins. Co., 72 N. Y. 118, that a saw-mill, lying idle for that the debt has been paid by the agent, or that the several weeks for lack of water or logs, did not thereby | seller elects to look to the agent alone for payment. cease to be occupied during the intervals, and in dis- 1 On 10th March, 1879, defendants gave to C. & Co. an order to buy certain oil. On 12th March C. & Co. pur- | to stop the surplus proceeds payable by the sub-purchased the oil from plaintiffs, stating that it was for a chaser, after discharging intermediate equities. E:; principal in the country, but not giving his name. | parte Golding, Davis & Co., re Knight & Son, 42 L. T. Part of the oil was delivered on 13th, and the remain Rep. (N. 8.) 270; 13 Ch. Div. 6:28, followed. Ct. Appeal, der on 15th March. On tho latter date defendant paid | May 13, 1880. Ex parte Falk; re Keill. Opinions by C. & Co. for the oil by their acceptances. On 17th or James, Baggallay and Bramwell, L. JJ., 42 L. T. Rep. 18th March plaintiffs applied to C. & Co. for payment; (N. S.) 780. other applications were made to C. & Co. between 21st and 25th March. C. & Co. stopped payment on 27th
NEW BOOKS AND NEW EDITIONS. March, and on 28th March application was for the first time made to defendants for payment of the price
32D NEW JERSEY EQUITY REPORTS. of the oil. Defendants repudiated all liability, whereupon this action was brought to recover tho amount.
Reports of Cases decided in the Court of Chancery, the PreHeld, that as no such delay had intervened from the
rogative Court, and on appeal in the Court of Errors and
Appeals, of the State of New Jersey. John H. Stewart, purchase of the oil as to lead defendants reasonably to infer that plaintiffs looked no longer to their credit, or
Reporter. Vol. V. Trenton, N. J., 1880. Pp. xxvi, 907. that they looked to the agent alone, plaintiffs were en
THIS volume of this most admirable series is full of titled to recover. Cases referred to: Thompson v. 1 interest. The following cases are annotated in the Davenport, 9 B. & C. 78; Heald v. Kenworthy, 10 Ex. most thorough manner by the reporter: Cray v. Cray, 739; Arinstrong v. Stokes, L. R., 7 Q. B. 598; Smyth I p. 25.— A denial of a marriage de jure, because comv. Anderson, C. B. 21. Ct. Appeal, June 11, 1880. plainant had another husband living when she married Irvine & Co v. Watson & Sons. Opinions by Bramwell, defendant, accompanied by an admission of a marBaggallay, and Brett, L. JJ., 42 L. T. Rep. (N. S.) riage de facto, presents a proper case for alimony pen800.
dente lite. Smillie v. Titus, p. 51. – A mortgage FIRE INSURANCE — CONTRACT OF INDEMNITY ONLY.
executed by a prisoner, while under arrest on a charge A policy of fire insurance is a contract of indemnity.
of appropriating gold intrusted to him to be refined, Premises were held under lease containing a covenant
the prisoner confessing the crime, is not void for to repair, under whicb the tenant was liable to repair
duress. Central R. R. of N.J. v. West Line R. R. Co., injury by gas. Au explosion of gas damaged the
p. 67.- A complainant must elect between his suit premises. The tenant recovered compensation froin
pending in the State court and his suit for the same the party who caused the explosion, and repaired the
cause pending in the Federal court. Homæopathic M. premises. The landlord had received payment under
L. Ins. Co. v. Marshall, p. 103.- In the absence of a fire policy, and the insurer, on discovering that the
fraud or duress a married woman cannot contradict premises had been repaired, sued for the return of the
her acknowledgment of a deed. Williams v. Vreeland, money so paid. Held, (reversing the judgment of P.
p. 135. - Specific performance will be decreed of an Lush J.), that the plaintiff was entitled to recover.
oral promise by A to B, in consideration of a legacy North British Ins. Co. v. London, Liverpool, etc., Ins.
from B, to pay C a part thereof. Hedges v. Norris, p. Co., 37 L. T. Rep. (N. S.) 6:29. Ct. Appeal, May 12, 1880.
192. — The statute of limitations does not bar a suit in Darrell v. Tibbetts. Opinion by Brett, Cotton, and
equity for the recovery of a legacy payable only out of Thesiger, L. JJ.
the personalty. Cooper v. Bloodgood, p. 209.- A ri
parian owner granted lands, including the water front LEASE - COVENANT TO PAY TAXES AND ASSESSMENTS I between high and low-water mark, with the usual -WHAT IS AN ASSESSMENT.- Plaintiffs, as owners of
covenants of title, and procured for the grantee a certain premises, were summoned by the urban sauit wharf license, by virtue of which the grantee built a ary authority for not complying with a notice to abate wharf on the granted premises. Subsequently, without a nuisance thereon occasioned by defective sewerage,
notice to the grantor, the grantee obtained from the and for that purpose to make drainago communication State a riparian lease of the premises. Held, that the with the common sewer. On the hearing of this sum necessity for such lease was under the circumstances mong a magistrate's order was made under section 96 in equity not tantamount to an eviction. Bussom v. of the Public Health Act, 1875 (38 and 39 Vict., ch. 55), | Forsythe, p. 277.-- The legitimacy of a heir may be directing plaintiffs to execute the works in question, contested, notwithstanding the intestate's recognition which they accordingly did. Defendant was tenant of Lof his legitimacy by entries in his family bible, and in the premises under a lease, by which he covenanted to
other ways, and notwithstanding it was never ques“bear, pay, and discharge " certain specified taxes and
tioned until after the death of all the ancestry, and just rates, “and all other taxes, rates, duties, and assess
as distribution was to be made. Parker v. Reynolds, p. ments taxed, charged, rated, assessed, or imposed on 290.- General creditors of a testator are not "agthe said demised premises or any part thereof, or upon
grieved," within the meaning of the Constitution, so the landlords or tenants in respect thereof." Held, by
| as to have a right of appeal from an order of the orBramwell and Baggallay, L. JJ. (Brett, L. J., dissent. phan's court directing the sale of lands to pay debts of ing), that under this covenant plaintiffs were entitled
the estate. Palys v. Jewelt, p. 302. - A receiver, apto recover from defendant the costs of executing the pointed by an equity court, can be sued at law for a above works. Judgment of Grove, J., affirmed. Cases tort, but only by leave of the equity court. American referred to: Tidswell v. Whitworth, L. R., 2 C. P.326; Dock, etc., Co., v. Trustees of Public Schools, p. 428.Thompson v. Lapworth, L. R., 3 C. P. 149; Crosse v. A State cannot be sued without its own consent, or a Raw, L. R., 9 Exch. 209; Rawlins v. Briggs, L. R., 3 C.
constitutional provision or special enactment to the P. D. 368; Hartley v. Hudson, L. R., 4 C. P. D. 367;
contrary. Johnston v. Hyde, p. 446.- One who has Sweet v. Seager, 2 C. B. (N. S.) 119; Payne v. Burridge, granted lands, reserving a right to maintain an open 12 M. & W. 727. Ct. Appeal, June 23, 1880. Budd v. raceway over them, is not estopped, by his acquiMarshall, 42 L. T. Rep. (N. S.) 793.
escence in the substitution of a small wooden trunk, MARITIME LAW –CARRIER — STOPPAGE IN TRAN from insisting on the restoration of the raceway. SITU.- Where the master of a ship has still the char Coole v. Cook, p. 475.- Communication of a venereal acter of carrier and retains a lien for freight upon the disease by husband to wife is "extreme cruelty," for cargo, the fact of a subsale and handing over of a de which a divorce will be granted. Yorston v. Yorston, livery order for the cargo to the sub-purchaser, and p. 495. — Acquiescence by a wife, for seven years, in actual receipt by him of part, does uot put an end to a divorce obtained by her husband, irregularly, as she the transitus so as to defeat the unpaid vendor's right | avers, the husband having married again and had two children by the second wife, is fatal to het application in the Rochester Democrat and Chronicle. In this for a divorce. Bailey v. Ross, p. 544.- An intestate column there appeared from time to time comments on died without issue, wife, or father, and never having the militia, which were not entirely of a complimenthad any brother or sister of the whole or half blood. | ary nature. Similar comments appeared in some of His mother survived, and was entitled to his lands for the other papers of that city. Now, had the author of life. His nearest relatives were two brothers of his these comments been simply and solely an editor, outfather, and a sister of his mother, and several children | raged military honor might have made its grievances of deceased uncles and aunts. After his death, and known by some irreligious remarks, but it certainly during the life of his mother, the two uncles and the would not have made them known in any other way. aunt died, leaving children. Held, that the last took The fact that the author held a commission in the to the exclusion of the uncles and aunts who died in | militia was the burden which sat heavy upon the souls his life-time. Gilmore v. Tuttle, p. 611.- A case con- of his comrades in arms. cerning the proper exercise of a trustee's discretion in Wherefore Col. S. S. Eddy, commanding the 54th making investments Fort v. Edwards, p. 641. — A regiment of the 12th brigade, preferred charges against testator bequeathed his wife $5,000, “ to be paid to her, Major Spahn, alleging that he had been guilty of conas far as can be, out of the insurance money coming to duct unbecoming an officer and a gentleman, and conmy estate from the insurance on my life." He had duct prejudicial to good order and discipline, in causthree policies on his life, amounting to $2,500, all pay- | ing and procuring to be published the comments able to his wife, on which he always paid the prem- before mentioned. Thereupon a court-martial was iums, which he always kept in his possession, and convened, which, on or about the 18th day of June, which he delivered to his executor. He had no other 1880, found Major Spahn guilty of the charges and life insurance. Held, that the amount of these poli sentenced him to be cashiered. This sentence was apcies, received by the widow, must be credited on the proved by Maj.-Gen. Henry Brinker, July 30, 1880. legacy English v. English, p. 738.-In 1875 a wife left on the 31st day of July, after the time within which her husband, on account of his abuse of marital rights, an appeal to tho commander-in-chief could be taken taking with her their two children, a boy and girl, then had expired, Major Spahn obtained a writ of certiorari aged six and four years respectively. She sued for a di- at a Special Term of the Supreme Court, held by Hon. vorce, but this was denied on his promise of conjugal F. A. Macomber, returnable at a Special Term to be kindness. She refused to return to him, notwithstand- | held in the city of Rochester on the last Monday in ing his entreaties. Held, that this was not such “mis- | August, 1880. This writ was directed to and served conduct” as should deprive her of the custody of the upon the members of the court-martial and Adjutantchildren, she being capable and willing to maintain and General Frederick Townsend. educate them, the boy being of a delicate constitution Now the idea of having the matter brought before and they preferring to remain with her, although the the civil tribunals was utterly repulsive to the militia; father was sober, moral, industrious, and of pecun and so it came to pass that a motion was made at the iary ability. We also note the following: Kuhn V. | August Special Term, in behalf of the adjutant-genJewett, p. 617. - Owing to defendant's negligence, pe eral, to have the writ of certiorari "annulled, vacated, troleum being carried on a railway train, burst its and set aside," on the following grounds: 1. That the tanks, was set on fire, flowed into a brook, and was writ should have been directed to the commander-incarried by the water to and ignited the complainant's chief instead of the adjutant-general, and 2d, that barn, at a considerable distance. Held, that defend- | Major Spahn had made no attempt to take the appeal ant was liable. Thornton v. Ogden, p. 723.- A convey to the commander-in chief, provided by section 195 of ance executed for a very inadequate consideration, by the Military Code, as amended by chap. 275 of the an unmarried sister to her brother, in whose house she Laws of 1878. The motion was argued by George was an inmate, in confidence that he would deal justly | Raines, Esq., for the respondent and R. E. White, by her, set aside. Laible v. Ferry, p. 791.-Where ex Esq., for the relator. The first ground was soon abanecutors, carrying on business under a will, had, with-doned; but in support of tho second ground the reout authority, used the proceeds to improve the lands spondent's counsel cited the cases of The People ex rel. of the testator, not subjected to the risks of trade, and Gray v. Phillips, 67 N. Y. 582, and The People ex rel. which under the will belonged in remainder to married Corwin et al. v. Walter, 68 id. 403. The principal case women and infants, held, that this would not justify cited by the relator's counsel was that of The People the court in charging the estate of the remaindermen, 1 ex rel. Garling v. Van Allen, 55 N. Y. 31, and as it was to any extent, with the trade debts. Mayer v. Attorneys directly in point, it was decisive. The motion was General, p. 815.- In an insolvent mutual life insurance denied, and it was ordered that the adjutant-general company, the holders of matured policies are preferred prepare and file with the clerk of Monroe county a copy creditors, and the holders of running policies are of all the record and proceedings directed by the writ members of the corporation, and the former cannot be to be returned, on or before the last Monday of Sepcalled on to share, pro rata, losses occurring after their tember, either party having the right to notice the writ claims matured; but where, at the date of the insolv | for argument at the Special Term to be held at the ency, the risk on endowment policies had not been city of Rochester, September 27, 1880. “So there the terminated, the holders of such policies are not credit- | thing remains;" and it now devolves upon the civil ors, although all the premiums liable to be called for courts to determine to what extent an entrance upon had been paid.
the arduous and dangerous duties appertaining to the
life of a militiaman debars a citizen from carrying on CORRESPONDENCE. ;
his business or exercising his profession.
APPARENTLY INCONSISTENT DICTA. A case, which may be of interest to the readers of Editor of the Albany Law Journal: the JOURNAL, is now pending in the Supreme Court In the case of Armstrong v. Henry M. Cummings and in this county. Until quite recently, Jacob Spahn, Charles D. Ingersoll, 20 Hun, 313, Mr. Justice Barrett Esq., of the city of Rochester, was major and engineer observes (Davis, P. J., concurring), the case being one of the 12th Brigade, 7th Division, N. G. S. N. Y., on concerning the jurisdiction in summary proceedings of the staff of Brig.-Gen. Wm. H. Briggs, commanding a civil justice in the city of New York, whose power in said brigade. He was also editor of a military column I such proceedings extends only over certain wards of the city, “It is insisted that the justice was without | Clifford, J.), say: “Properly construed a party under jurisdiction. If that were so it should have been that provision may proceed in rem in the admiralty, if proved as a matter of fact that the premises were not a maritime lien arises, or he may bring a suit in persituated in either the nineteenth or the twenty-second sonam in the same jurisdiction, or ho may elect not to ward. * * * It is proper to say that the courts go into into admiralty at all, and may resort to his will take judicial notice of the statute creating these common-law remedy in tho State courts, or in the Cirwards, and so we find the premises in question within cuit Courts of the United States, if he can make their boundaries." P. 314.
proper parties to give the Circuit Court jurisdiction of In the case of The People ex rel. Duchardt v. William his case." H. Kelly, 20 Hun, 549, the statement is made per Cur It is submitted, however, that even after the text iam (Davis, P. J., Brady and Barrett, JJ.), this being has been corrected as above suggested the author's aca certioruri to review a summary proceeding had be | count of the jurisdiction in admiralty and maritime fore the justice of the sixth judicial District Court in cases is not entirely satisfactory. the city of New York, “the case was tried upon the BALTIMORE.
T. B. M. assumption on both sides that the premises were in fact in the sixth judicial district. Although that fact
LAW REPORTS. is within our personal knowledge, we cannot take judi
Editor of the Albany Law Journal: cial cognizance of it.” P. 551.
While fully concurring with what you say on page Why the court may not take judicial cognizance of
142 of your present volume in reference to brevity in the sixth judicial district if it may take notice of the
law reporting, I think no report should be considered wards of the city does not appear entirely evident.
complete that does not contain a memorandum of all From what source the members of the court derived
authorities cited by counsel. When this is omitted their knowledge concerning that district, although not
there is no way of knowing whether or not prior cases stated, is a matter of necessary inference. Knowledge
in point were overlooked. Besides, the collection of concerning its boundaries could have been derived
authorities is an immense saving of labor to counsel only from Laws of 1860, chap. 300, where the wards
looking up any similar question. composing the district are mentioned.
Yours, etc., B. F. LEE. Does not the court take notice of this public statute?
NEW YORK, Sept. 14, 1880.
C. W. S. NEW YORK COURT OF APPEALS DECISIONS.
COOLEY'S AMERICAN CONSTITUTIONAL LAW.
THE following decisious were handed down Tuesday, Editor of the Albuny Law Journal :
1 Sept. 21, 1880: Judge Cooley, in his manual of American Constitu Judgment affirmed with costs — Thornton v. Wabash tional Law (Student's Series), after stating that the Railroad Co.; Bommer v. American Spiral Spring Co.; jurisdiction of the Federal courts in cases of prize is Remington Paper Co. v. O'Dougherty; O'Dougherty v. exclusive, goes on to say (p. 114): “But it is also ex Remington Paper Co.; Wayne County Savings Bank v. clusive in all cases of maritime torts and contracts, Low, Harris v. White; Simmons v. Cloonan; Thompand liens for maritime services, though suits in per son v. Bank of British North Americu; Taylor v. sonam in the same cases, whether authorized by the Mayor, etc., of New York; Hynes v. McDermott; Henprinciples of the common law or by State statutes, are lein v. Powers; Reynolds v. Robinson; James v. Burchcognizable only in the State courts."
ell; Ilarrington v. Clark; McCombs v. Alien; Howe The word “only " in the above extract is probably a | Machine Co. v. Harrington. — Judgment affirmed misprint for "also.” It is not likely that the author with costs. Appeal from order granting a new trial as overlooked common law remedies in the Circuit to defendant Smith, dismissed with costs – Hun v. Courts of the United States, as well as libels in per Cary. — Judgment reversed and new trial granted, sonam in the District Courts, the less so, as in Leon costs to abide event – Ponvert v. Belmont; Crispen v. v. Galceran, 11 Wall. 187, one of the cases cited by Babbitt; Burnett v. Snyder (two cases); Carr v. Breese ; him, the opinion of the court begins thus:
Bray v. Farwell; Thompson v. MacGregor ; Halstead “ Mariners, in suits to recover their wages, may pro v. Seaman; Viele v. Juilson; Wuring v. Somborn ; ceed against the owner or master of the ship in per | Mansfield v. Beard. — Judgment modified by striksonam, or they may proceed in rem against the ship or ing out the affirmative relief as to parcels eight and ship and freight, at their election. Where the uino and as so modified affirmed, without costs in this suit is in rem against the ship or ship and freight, court to either party - Remington Paper Co. v. the original jurisdiction of the controversy is O'Dougherty. — Order affirmed with costs - In the exclusive in the District Courts, as provided by matter of opening of Eleventh avenue, People ex rel. the ninth section of the Judiciary Act, but when Thurston v. Town Auditors of Elmira; Woodmansee v. the suit is in personam against the owner or mas Rogers, in re Manhattan Savings Institution. -Order ter of the vessel, the mariner may proceed by libel of General Term reversed and judgment on verdict in the District Court, or he may, at his election, pro | affirmed with costs – Brill v. Tuttle. - Orders of ceed in an action at law either in the Circuit Court, if General Term and Special Term reversed without he and his debtor are citizens of different States, or in costs — The People ex rel. Egan v. The Justices of the a State court as in other causes of action cognizable in Marine Court of the City of New York. — Order of the State and Federal courts exercising jurisdiction in General Term reversed and that of Special Term afcommon-law cases, as provided in the eleventh section firmed without costs. Motion to dismiss appeal deof the Judiciary Act."
nied with $10 costs — Sheridan v. Andrews. — Order To the same effect are The Belfast, 7 Wall. 624, also of General Term reversed, and that of Special Term cited by the author, and numerous other cases which affirmed with costs — Inre Robbins to vacate, etc.; In explain the meaning and operation of the reservation re New York Episcopal Public School to vacate. in the ninth section of the Judiciary Act of 1789, “say Order affirmed and judgment absolute for respondent ing to suitors in all cases the right of a common-law on stipulation with costs – Lafond v. Deems; Gerould remedy, where the common law is competent to give | v. Wilson. - Order of General Term reversed and
judgment of Special Term affirmed with costs — ConIn Steamboat Co. v. Chase, 16 Wall. 552, the court (per ger v. Conger. — Order reversed in so far as it di