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to look before attempting to cross the a controversy upon the evidence railroad track, in order to avoid an whether she crossed or attempted to approaching train, and not to walk cross the railway at the Ilarris Street carelessly into the place of possible crossing, or at a place not a crossing, danger. Had she used her senses she and that this was a question of fact could not have failed both to hear for their determination. and to see the train which was coin- lleu, Error. To instruct a jnry ing. If she omitted to use them and upon assumed facts to which no eviwalked thoughtlessly upon the track dence applied was error. Such inshe was guilty of culpable negli-structions tended to mislead them by gence, and so far contributed to her withdrawing their attention from the injuries as to deprive her of any right proper points involved in the issue. to complain of others. If using them Judgment reversed and cause l'eshe saw the train coming, and yet manded for a new trial. undertook to cross the track, instead Opinion by Field, J. of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast

ESTOPPEL. upon the defendant.

No railroad

N. Y. COURT OF APPEALS. coinpany can be held for a failure of Knox, applt., v. Ilexter, respt. experiments of that kind.

Decided December 18, 1877. chuoses in such a position to take A recovery by a lessee of the full value of the risks he must bear the possible con

use of prcmises included in the lease for the

time he was deprived of possession is cquiv. sequences of failure.

alent to possession, and he is thereby es. The Court in its charge assumed

topped from setting up want of possession that the light from the train might as a defence to a subsequent action for rent. have been obstructed by cars on the

In the action of Hexter v. Knox, side track in the vicinity of the place 63 N. Y., 561, to recover damages for where the injury was inflicted, and breaches of covenants in a lease, the told them that whether the view was present defendant recovered the full thus obstructed was for them to de- value of the use of certain premises termine; and also instructed the jury included in a lease for the time he as to the right of the deceased in pass- was deprived of possession by the ing the railway upon a public cross-failure of the lessor to complete the ing, to rely upon a substantial com-buildings thereon according to his pliance by the servants of the com- covenant. A counterclaim for a pany with the duties reqnired by law quarter's rent was withdrawn on the in giving signals and warnings of trial, and the jury were instructed, at approach, and as to its liability if the the request of plaintiff, that in making deceased was killed by the cars while up their verdict no allowance was to they were running to and over a pub- be made to the lessor for rent for that lic street crossing without giving the quarter, and the jury made no allowrequired and usual signals of ap- ance therefor. This action proach ; and further instructed then brought to recover the rent for that upon its own motion that there was quarter. Defendant claims that he

was

is not bound to pay it because of the J. Gibson, for applt.
breach of the lessor's covenant to Boies & Thomas, for respt.
complete the buildings.

lleld, That the promise was .valid, John M. Scribner, for applt. and upon the happening of the event Samuel Iland, for respt.

could be enforced against the sepalleu, That the verdict in the for- rate estate of the promisor. 62 N. Y., mer action, in favor of the present de- 505 ; 53 Id., 425. fendant, for the whole value of the Judgment of General Term, affirmuse of the premises of which he was ing judgment for plaintiff, affirmed. deprived was the equivalent to pos- Opinion by Folger, J. All concur. session, and it having been paid he is bound to pay the rent and is es- FIRE INSURANCE. INSURAtopped from setting up the want of

BLE INTEREST. possession as a defence to this action;

U.S. SUPREME COURT. that defendant having, by his former

The Germania Fire Ins. Co. et al., action and course upon

upon the trial, elected to treat the covenant to pay al. (October, 1877.)

pl.ffs. in error, v. Diller Thompsou et rent as independent of the covenant

Where the owners of whiskey in a distiller's to complete the buildings, he must

bonded warehouse are sureties on the distil. now be held to that construction.

ler's bond, their liability for the government Order of General Term, granting tax in case of the destruction of the propnew trial, reversed, and judgment for

erty and failure of the distiller to pay is an

insurable interest. plaintiff at Circuit affirined.

A sale by one of the partners of all his interOpinion by Andrews, J. All con

est in the partnership will not deprive him cur.

of this insurable interest.

Error to the Circuit Court of the MARRIED WOMEN.

United States for the District of N. Y. COURT OF APPEALS. Kentucky. Ilerrington, respt., v. Robertson, Defendants in error recovered exr., &c., et al., applts.

in the Circuit Court of the United Decided November 27, 1877. States for the District of Kentucky a A promise by a married woman to repay, upon joint judginent for $3,317.58 on a

the happening of a certain event, money policy of insurance on whiskey in a advanced by her father as a foundation for

distiller's bonded warehouse. The a separate estate is valid, and upon the happening of the event can be enforced against distillery and warehouse were owned her separate estate.

and conducted by George II. Deaven, *This action was brought to recover but the spirits were distilled for and a sum of money advanced by plaintiff owned by the defendants in error at to his daughter, a married woman, on the time the policy was issued. They her promise that it should be repaid were also sureties on Deaven's distilin an event not unlikely to happen. lery bond to the United States, and as The advancement was à part of a such were liable for the tax on the transaction the purpose and end of whiskey if not paid by Deaven, or which was to create for the daughter made out of the whiskey. By the a separate estate.

terms of the policies the companies bind themselves to “insure Messrs. vision in the policy that it should be Thompson & Co. against loss or dam- void“ if the property be sold, or transage by fire to the ainount of eight ferred, or any change take place in thonsand dollars, for the term of one title or possession, whether by legal year, upon whiskey, their own, or held process, or judicial decree, or volunby them on a cominission, including tary transfer or conveyance. government tax thereon for which The refusal of the Court to do so, they may be liable, contained in the and the charge of the Court to the log bonded warehouse of G. H. Dea- effect that this change in regard to ven.”

the ownership, if true, did not defeat After the whiskey was burned these the right to recover the amount of the coinpanies paid their share, with oth-judgments against plaintiffs for taxes, ers, of the loss on the value of the are the errors on which a reversal is whiskey apart from the tax, but by asked. the receipt which they took it was Held, That the companies are liable. stated that the claim for liability on Where the only interest of the assured account of tax remained undecided. is the full and perfect ownership of Thompson & Co. were sued on their the property, that is the interest inbond with Deaven for this tax, and sured, and the amount to be recovered they notified the insurance companies on the policy of insurance is that full of the suit and asked them to defend value, or such sum less than that as it, which was declined. Judgments the insurer stipulates to be liable for. were obtained in each case on the But it often occurs that the interest bonds, and Thompson & Co. reple of the party insured is not that of full vined the judgments. By this is ownership. IIis interest may be that meant that they gave bail, which ope- of a trustee, or executor, or some other

ted as a stay of execution for the representative character, in which period which the law of Kentucky case the recovery will be in accordallowed in such cases. The present ance with the nature of the contract. action was brought by Thompson and The interest of the plaintiffs in the Walston to recover the amount of whiskey which is insured is threefold these judgments.

—their own, or held on a commission, On the trial evidence was given and the government tax, for which tending to show that before the fire they may be held liable. If the Walston had sold to his partner, makers of this policy intended to inThompson, all his interest in the part- suure no other interest of Thompson nership, and that Hito Thompson had & Co., in the whiskey than their probecome interested with the other prietary interest, the interest which at Thompson in the business to the ex- the time of the loss they had as owntent one-fifth. And on the hypothe- ers of the whiskey, the enumerations sis that the jury believed this, the of the two other interests was useless counsel for the companies asked the and misleading. The facts show that Court in several forins to instruct the they had another interest, and since jury that plaintiffs could not recover. they insured it, it must be presumed This proposition was based on a pro- 1 that it was known to the insurers.

The whiskey which they owned was was paid, since its continued existliable to the government for a tax, ence was his best, if not his only, se and this Mr. Deaven was primarily curity against liability on the bonds. liable for and had promised to pay, Judgment affirmed. but if he did not, the whiskey could Opinion by Miller, J. be sold for it. They had also become bound with Deaven on his bond for the payment of this tax. In the

FIRE INSURANCE. PART.

NERSIIIP. RECEIVER. event of the whiskey being destroyed

N. Y. COURT OF APPEALS. by fire, the danger of their personal liability was greatly increased. They

Keeney, recr., &c., applt., v. The were, therefore, right in wishing to Home Ins. Co. of Columbus, O., be seenred against this loss, also, if respt.

Decided December 11, 1877. the whiskey was burnt. It is impossible to give any other construction The appointment of a receiver in an action to

dissolve a partnership does not change the leto the policy than that the company

gal title to or possession of the partnership agreed to give this indemnity. The

property so as to avoid a policy of insurance. language, when bronght into relation. Where a policy of insurance provides that if with the conceded facts of the case,

any change takes place in the title or posadınits of no other.

session of the property insured, whether by

legal process or judicial decree, &c., then it This interest was an insurable in

should be void, only a change in the legal terest, as much as freights at sea, or title will avoid it. profits in an adventure. The whis- This was an action upon a policy key stood between them and their of insurance on partnership property loss. The whiskey, when in the ware- brought by K. as receiver of the honse, was loaded with this tax. It firm. It appeared that after the would sell for as much less as the tax, policy was issued, K., who was a memunless the tax was paid. So long as it ber of the firm, brought an action for was in the warehouse, plaintiffs were a dissolution thereof and was apnot liable for the tax. The moment it pointed receiver. A dissolution was was lost they became liable. This was subsequently adjudged and a sale dea fairsubject of insurance. 13 B. Mon., creed, but not until after the property 321; 2 Pick., 249; 62 N. Y., 53. was partially destroyed by fire. The

In regard to this interest, Walston had policy provided that “if the property never parted with it. Ilis sale of the be sold or transferred, or any change partnershipinterest did not release him takes place in title or possession, from his liability on Deaven's bonds. whether by legal process or judicial Nor did the subsequent purchase of decree or voluntary transfer or conHite Thompson of one-fifth interest veyance without written permission, in the whiskey have that effect, or then the policy shall be void.” Dedestroy Walston's interest to that ex- fendant claimed that the appointment tent in the whiskey. As to him it is of plaintiff as receiver without its very clear that he had the strongest written permission, effected a change interest that the whiskey should be in the title or possession of the insecure from fire until the tax on it Isured property within meaning of the

above condition and rendered void longed to as many different owners, the policy.

the plaintiffs and their assignors. Robert Sewell, for applt.

Defendant's responsibility for the Geo. W. Parsons, for respt. damage done by the fire is not con

Held, That the claim was not ten- tested. The damages claimed and able ; that the legal title to the prop- allowed by the referee were mostly to erty was not changed by plaintiff's freehold interest. appointment, but remained in those

Rob't S. Green, for applt. in whom it was vested when the ap- J. L. Smith, for respts. pointment was made, 2 Atk., 564; 1 Held, That to uphold the recovery Swanst., 573; 4 Rass., 65 ; 31 Beav., plaintiffs were bound to show such 436;

1 Sand. Ch., 165 ; 75 Penn. St., titles in the several parcels of land as 112; Kerr on Rec'rs., 158; that only to entitle them to damages not merely a change in the legal title would avoid to the possession, but to the freethe policy; that there was no such holds; they could prove their titles change of possession as would avoid either by conveyances showing paper the policy.

title, or by such possession as would Order of General Term, reversing be presumptive evidence of title; in judgment on verdict for plaintiff, re- cases where reliance was placed solely versed.

upon paper title, the land not having Opinion by Andrews, J. All con- been occupied, improved or enclosed, cur, except Earl, J., absent.

proof of a chain of title froin the

original patentee donee was requisite. ACTION FOR DAMAGES TO LAND. TITLE.

Possession unaccompanied with paN. Y. COURT OF APPEALS.

per title requisite to furnish the preMiller et al., respts., v. The L. I. sumption of ownership sufficient to RR. Co., applt.

maintain this action must be actual. Decided December 11, 1877. Such possession of lands unoccupied, To uphold a recovery in an action for damages unimproved and unenclosed can be

to unenclosed and unimproved land, the proved by showing that the lot was plaintiff must show such title as to entitle kept as a wood lot of suitable size for him to damages not merely to the possession but to the freehold; such title may be

an improved farm, and that the owner shown by conveyances showing paper title, of the farm habitually for some years or by such possession as would be presump. cut thereon his firewood, sawlogs, tive evidence of title.

fencing, and building timber. 14 Occasional entries upon a wood lot at long in

tervals of time do not furnish evidence of Wend., 239. Occasional entries at the requisite possession.

long intervals of time upon such a lot Reversing S. C., 3 W. Dig., 323.

do not furnish evidence of the requisThis was an action to recover for ite possession. damages caused to certain lands, Judgment of General Term, affirinmostly unenclosed and unimproved, ing judgment for plaintiffs, reversed on Long Island, by a fire set by a and new trial ordered. passing engine on defendant's road. Opinion by Earl, J. All concur, The land consisted of fifty-four dif- except Folger and Miller, JJ., not ferent parcels, claimed to have be- 1 voting.

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