under the general statute authorizing the be void if the assured "shall die by his formation of Gas Light Companies (Chap. 37, Laws of 1848, p. 48), and was clothed by Chap. 757, Laws of 1870, p. 1878, with the powers given by the General Railroad Act of 1850, to railroad corporations, for acquiring the title to real estate necessary for their use, and ascertaining the compensation to be made therefor. This proceeding was commenced for the appointment of Commissioners to ascertain the competion, if any, to be made to respondent for the use of the highway in front of his farm for laying their gas pipes. The Commissioners made an award to respondent of $350. This was confirmed by the Special Term upon respondent's application. own hand or act." The death was from the deceased having hung himself, and the company defended under the proviso. There was evidence to show that the assured was insane at the precise time that he hung himself, and the jury found against the company, under the instruc tions of the court, which were as follows: 1. On the plaintiff's prayers that the proviso would not defeat a recovery if they found from the evidence; first, that the deceased killed himself in a fit of insanity which overpowered his consciousness, reason and will, and thus acted from a mere blind and uncontrollable impulse; or, second, that he killed himself in a fit of insanity impelled by an insane impulse he could not resist. Held, That the order confirming the award was proper; that by the appropria2. On the defendant's prayers, after tion of respondent's land for a public some modification of one of the prayers; highway the public only acquired a mere first, that if they found that the deceased right of passage, with the powers and took his own life, then they should privileges incident thereto; that the fee of the land remained in him, and as the use of the highway in laying the petitioner's gas pipes imposed an additional burden on the land, respondent was entitled to compensation therefor. find for the defendant, unless they believed, from the evidence, that he was at the time of such self-destruction impelled thereto by insane impulse which the reason left him did not enable him to resist, and the presumption is that he was not Also held, That there was no objection impelled thereto by such an impulse, in to respondent's application to have the the absence of evidence to the contrary, report of the Commissioners confirmed. and such evidence must relate to the preIn re pet. of the Bloomfield and Roch-cise time of the occurrence if he was only ester Natural Gas Light Compa- subject to fits of insanity. Second, That ny, appl't, v. Calkins, resp't. after they are satisfied that he died by N. Y. Court of Appeals, Sept. 21, 1875. his own hand, it becomes incumbent on Opinion by Miller, J. the plaintiff, on her part, to offer proof sufficient to prevent the operation of the proviso, and she does not comply with such exigency by proof merely that he was insane at times; she must prove that he was insane when the act was committed, and in the absence of proof of his condition at the precise time when the act was committed, they must presume that he was then sane, and that they cannot draw an inference that he was insane from the fact that he took his own life. Miller, J. : J.:** *That these instructions state the law more favorably for INSURANCE-LIFE. When the assured "dies by his own hand," and in such a condition of insanity that he does not act voluntarily, the proviso of a policy that it shall be void if the assured shall "die by his own hand," does not attach. The specific insanity at the time of the act must be shown, else sanity will be pre sumed. The policy on the life of the assured contained a proviso that the policy should The only question argued was whether the Court had jurisdiction to make the decree. The petitioner relied on the the insurer than is found in any of the restraining defendant from selling the American authorities yet known. They property. This injunction was granted, exclude altogether the idea of any exer- and a creditor of the defendant applied cise of volition in the commission of the to have the decree vacated on the ground act, and the power to refrain from doing "that at the date of the institution of the it. If a man's consciousness, reason and suit there was no original jurisdiction in will are overpowered, and he is impelled the Court at the instance of the trustee to the act by an insane impulse which he complainants to foreclose the mortgage cannot, or which the reason he has left of the corporation defendant." does not enable him to resist, how can it be any more justly said that the resulting death was "by his own hand or act" than if he killed himself by accident or proposition that the jurisdiction of the mistake? Were it possible for one in Supreme Court in such a case as this was that condition, and acting under such an taken away by the present Constitution. impulse, to possess sufficient power of Art. V., Sec. 3, inter alia, declares that mind and reason to understand the phy- the Judges of the Supreme Court shall sical nature and consequences of the act, have original jurisdiction in cases of inand to have a purpose to cause his own junction where a corporation is a party death, still, as he is deprived of all power defendant; of habeas corpus; of mandaof resistance he does the act involunta-mus to Courts of inferior jurisdiction; and rily, and it is impossible to call it "his of quo warranto as to all officers of the voluntary and willful act." In our opin- Commonwealth whose jurisdiction exion the instructions given cover this part of the case, and state the law most favorably for the defense. There was consequently no error in the rejection of the appellant's other prayers on the same subject. The Knickerbocker Life Ins. Co., appellant, v. Peters, appellee. Maryland Court of Appeals. April, 1875. JURISDICTION. Constitutional law. Constitution of Pennsylvania, Art. V., Sec. 3. Supreme Court -extent of its original jurisdiction. Incidental relief-how affected, when the Court has no jurisdiction of the substantial matter. tends over the State; but shall not exercise any other original jurisdiction. Held, That the bill is not for an injunction, but for a decree requiring the trustees to sell the mortgaged premises. The injunction is a mere incident to the substantial thing sought. And this Court has no jurisdiction to make the decree of sale. Fargo et al., trustees, v. The Oil Creek LANDLORD AND TENANT. Distress. Suit for rent whilst distress is held. Election of remedy. The landlord distrained for three months' rent due; kept the goods, and, when another month's rent accrued, sued for the four months rent. The defendant made a mortgage of its road to the complainants to secure certain bonds, and the trustees filed a bill at Nisi Prius, averring that the defendant Held, The plaintiff is concluded by was in default in the payment of the in- his election of his remedy. He cannot terest on the bonds, and asking for a de- hold the distress and then sue for the cree of foreclosure, and for an injunction rent. Lear v. Edmonds (1 B. & Ald., Constitutional prohibition. Art. I., sec. 14. Agricultural land cannot be leased for more than twelve years. The charac ter of the land is the test of the validity of the lease. This action was brought to recover rent under a lease to defendant for seventeen years. The premises were described in the lease as "the iron ore lot," and the lessee was given the right to dig, excavate, and remove iron ore therefrom, and the lessors reserved certain rights of way and the exclusive use of the north half of the lot, except the lessee's right to excavate and remove iron ore from said north half. Defendant pleaded in his answer that the land, at the time of the lease, was agricultural land. An order having been made requiring plaintiff to reply to this answer, he put in a reply admitting that part of the demised premises were agricultural lands, part being rocky and unfit for agriculture, and alleged that the lease was only for the purpose of getting iron ore therefrom. Upon the trial defendant moved for judgment on the pleadings, on the ground that it appeared from them that the lease was void, being in contravention of Art. I., sec. 14 of the State Constitution, which declares that no lease or grant of agricultural land thereafter made for a longer term than twelve years, in which any rent or service of any kind shall be reserved, shall be valid. The Court denied the motion. Held, Error. That the Constitution makes the character of the land the test of the validity of the lease, and not the purpose for which the lease was made; and there being no restriction in the lease as to the use to which the land was to be put, the constitutional prohibition applies. If the mining right was all that was intended to be demised, the lease should have been put in that form, and it would have been free from objection. Odell, respt., v. Durant, applt. 1875. Opinion by Rapallo, J. MALICIOUS PROSECUTION. ACTION. No civil action will lie against a member of the grand jury which found the indictment. Want of probable cause must be shown before malice will be implied. Acquittal merely not sufficient to raise such implication. New trial must not to be burdened by a condition. The appellee was arrested upon an indictment charging her with having received stolen goods of the appellants, knowing that they had been stolen. One of the appellants, Ullman, was a member of the grand jury which found the bill, and he gave the jury information in the case. The cause was tried, and there was a verdict of acquittal. And the appellee brought an action for malicious prosecution. It was shown that the appellant Ullman was a grand juryman, and there was no other evidence of malice than that the appellee was acquitted. The Court below offered Ullman a new trial on the payment of costs, which he refused. Held, 1. That the action against the appellee, Ullman, he having been one of the grand jurors, cannot, from motives of public policy, be maintained. 2. The plaintiff in an action for malicious prosecution must show a want of probable cause before the implication of malice will arise. 3. No malice will be implied from the clerk, and the Board of Supervisors has acquittal merely. 4. It was error to offer the new trial to Ullman, attaching the payment of costs as a condition. He was entitled to a new trial as of right, if the Court erred in its instructions, and the costs should abide the final result of the action. no power to change the method of indexing prescribed by statute, and to transfer the duty of making the indices from the County Clerk to any one else. The mandamus applied for would be an unlawful interference with the custody of the books and records vested by law in Ullman et al., appellee, v. Abrams, ap- the County Clerk. pellant. Kentucky Court of Apeals. 9 Bush, pp. 738-744. Opinion by Peters, J. The People, etc., ex rel. Welch, applt., MANDAMUS. Will not lie to compel former clerk to have access to the books and records of a county clerk's office to index them. The clerk has exclusive control, and, by statute, must make the regular indexes. NEGLIGENCE. One is not to be conclusively held to know when not warned the sweep a piece of timber dragging to a wagon will make when the wagon turns a corner. This action was brought to recover The Board of Supervisors of Catta- damages for injuries received through raugus Co., at its annual session in 1873, the alleged negligence of one of deand while the relator was clerk of that fendants' employees. It appeared that county, passed a resolution employing a truck loaded with plank was being him to re-index all the record of mort- driven along State street, in Brooklyn, gages and miscellaneous intruments in his approaching the place where plaintiff office, upon a new and improved plan, was standing, and as the truck turned and fixing the compensation he was to into Columbia street, and as plaintiff receive therefor. The defendant having was about stepping off the sidewalk to been elected County Clerk in that year, entered upon the duties of the office Jan'y 1, 1874, before the re-indexing had been completed. Having refused to allow the relator the occupation of the office and the use of the records to complete the reindexing, the latter, upon an order to show cause, moved at Special Term for a writ of mandamus to compel him to do so. cross State street, the plank dragging behind the truck swept around and struck her, causing the injuries complained of. No warning of danger was given to plaintiff by the driver of the truck. At the close of plaintiff's evidence defendants' counsel moved for a non-suit, on the ground that plaintiff, by her own negliligence, contributed to the accident. The motion was granted. Held, That when the relator ceased to be Held, Error; that plaintiff's failure to County Clerk the duty of making indices, observe the rather unusual and dangerous when necessary, devolved upon his suc- appendage dragging behind the truck, and cessor in office, and became one of his to calculate the sweep it would make when official duties; that by Chap. 199, Laws the truck should turn the corner, can hardof 1843, which regulates the subject of ly be held, as matter of law, to be concluindexing the books, and prescribes the sive evidence of negligence on her part; manner in which the indices are to be and it was for the jury to say, in the abmade, the duty is devolved upon the sence of warning, whether plaintiff had his interest to the new firm, and authorized defendant, White, a general partner in both firms, to convert the same into cash, and pay the cash into the new firm. On the 1st March, 1869, the certificate required by statute in reference to the formation of limited partnerships (1 R. S., 764, § 4), was made, and filed, as was also an affidavit of White, as required by the statute (Sec. 7), stating that the sum specified in the certificate as contributed by White had been "actually and in good faith paid in cash." The Referee found, upon evidence deemed sufficient by the Court, that the assets had not in fact been converted and the money paid in, in cash, at that time, but that the required amount due Whitman from the old firm was credited to him by the new firm and considered as cash. Held, That Whitman was liable under the provision of the statute (Sec. 8) making all the persons interested in the copartnership liable as general partners in case of any false statement in the certificate or affidavits; that the statute is not satisfied by a contribution of any thing else save cash, however convertible at the time, nor need there be an intentional false statement to bring the parties within the statute. Ward vs. Newell, 42 Barb., 482; The Mad. Co. B'k vs. Gould, 5 Hill, 309, distinguished. Van Ingen, resp't., v Whitman, im pleaded, etc., app'l't. N. Y. Court of Appeals, Sept. 21, 1875. Opinion by Folger, J. PUBLIC SCHOOLS. Teacher not authorized to compel a pupil to pursue a study forbidden by parent. Parent's authority superior. Punishment of a child by teacher for obeying parent an assault and battery. This was an action against defendants as copartners to recover for goods sold the firm. Defendant, Whitman, defended upon the ground that he was a special partner only, and so not liable. It appeared that he had, prior to February 1, 1869, been a special partner of a former firm which was dissolved. He The plaintiff was a qualified teacher of had an interest in its assets of over a public school, and she inflicted corporal $30,000; he contributed that amount of punishment on the defendant's son for |