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which they possessed before the passage of upon default, a motion made on behalf of
Buch amendment. Wheelock, assignee, v. Lee. the tenant to open such default, charging

376 his landlord with collusion with holder of
4 The obvious purpose of the amendment is der to oust him and obtain possession for him-

the mortgage to obtain its foreclosure, in or-
to enable the Federal Courts to rid themselves self, is not an attempt on the part of the ten;
of a certain class of cases by sending them to
a forum which is recognized already as having ant to dispute the title of his landlord. Rend

v. Stokes et al.

5 One whose person or property has been
seized under process may question 'the juris-

diction of the Court which issued it, either in 1 Where a person procures another to volun.
an action of trespass for such seizure, or in an | tarily give him possession of goods, with the
action against him by the party in whose favor | intention by such person so receiving them to
it was issued, in which such process is an steal them, that constitutes the crime of lar-
element of the cause of action. Bartlett v. ceny. Macino et al. v. The People. 216

6 An action by an assignee in bankruptcy to

foreclose a mortgage given to the bankrupt is
not a case arising under the laws of the United 1 In an action to recover rent under an alleged
States, and is not therefore affected by or lease, an amendment to the complaint by
within the operation of the U. S. Statutes giv- averring a verbal letting for seven years is al.
ing exclusive jurisdiction to the Courts of the lowable. Thomas v. Nelson.

United States. Burlingame, assignee, v. Parce
et al.


2 Where the keys of the premises have been

sent to the lessor without his request or as-
7 Causes of action accruing to an assignee in sent, a mere retention of them by him will not
bankruptcy by operation of law, as the result amount to a surrender and acceptance. Id.
of actions commenced by him in a State Court,
do not fall within the inhibition of the amend- 3 When the lessee remains upon the premises
ment to the Bankrupt Act, giving jurisdiction until an arrangement is made by which he is
over the legal debts and assets of the bankrupt to repair a defective flue at the lessor's ex-
not exceeding $500 to the State Courts. Tullis pense, a failure to repair estops him from com-
V. Miller.
597 | plaining of the flue.

See BANKRUPTCY, 7, 8; COUNTY COURTS ; | 4 Where premises are leased to the agent of a
STATUTE OF LIMITATIONS, 4; SUPPLEMENTS corporation, the lease being signed by such

agent individually, he alone is liable on the

covenants in such lease. Kiersted et al. v. The
O. & A. RR. Co. et al.


5 The fact that the corporation furnished the

money to the agent to pay the rent does not
make it liable to the lessor.

COURT; CONSTITUTIONAL LAW, 2, 3; Costs, 6 Where the corporation subsequently appoints
12, 13.

a new agent, who takes possession of the prem-

ises, there is no surrender, but the corporation
is presumed to have entered as sub-tenants of

1 A delay of five years in bringing suit for the original lessee.
specific performance is such laches as will for. 7 While a parol lease is not of itself good for
feit the plaintiff's rights. Davidson v. Associ. more than a year, yet if the tenant continue
ates of the Jersey Co.

580 possession under it for more tban a year it be-

comes a tenancy from year to year. Dorr v.


8 A verbal notice that the tenant will leave the
1 A landlord is liable, for an injury to a

premises by the end of the year is not suffi-
stranger by the defective repair of premises cient to terminate such tenancy, nor is a for-

mal notice sufficient where the tenant con-
let to a tenant only in case he has contracted
to do repairs, or where he has been guilty of

tinues in possession of any portion of the
leased premises.

a misfeasance. Nelson v. The Liverpool Brew-

251 9 A clause in a lease which provides that the

lessor shall have a lien as security for the pay-
2 A contract for the sale of land, given to a
tenant, does not change the relations existing ment of rent upon all goods, wares, &c., put
between the landlord and tenant. Bostwick upon the premises, and authorizes the lessor,
v. Frankfield.


in case of non-payment of the rent, to take

and sell such property in same manner as in
3 Where a foreclosure of a mortgage covering case of chattel mortgages, is binding upon the
leused premises has proceeded to judgment | parties. Wisner v. Ocumpaugh.


ery Co.

10 One who was a special partner in the firm sheriff's deed on an execution sale on said which leased the premises, and who, on the dis- judgment is subsequent to such mortgage. solution of the firm, purchases the property, Frost v. The Yonkers Savings Bk.

162 takes it subject to the lease, and cannot maintain an action of trover against the lessor for See ATTORNEYS, 1, 3, 4; LEASE, 9; MORTsubsequently taking the property under the GAGE, 18, 19, 20, 31 ; TRUSTS, 6; VESSELS, chattel mortgage clause in the lease. Id. 4, 5; WILLS, 27. 11 Where a lease provides that in case the premises are destroyed by fire the lessor sball

LIFE INSURANCE. rebuild, and that in case he does not do so

1 A note given by the insured in payment of within a specified time, the lease shall cease, premium, although not paid at maturity, is an if the lessee so elects, the lessee's remedy for adequate consideration to issue a policy of in. damages is complete upon the lessor's failure

surance. Shaw v. The Republic Life Ins. Co. 2 to rebuild. Ganson v. Tifft.


2 When failure to pay the annual premiams 12 The lessee sublet his interest to third par

upon a policy of life insurance is caused by ties for a portion of the term at an increased the occurrence of war between the two secrent, possession to be given up to him at the tions in which the insurer and the insured expiration of the term. Held, To be a sub- respectively reside, the contract is suspended ; lease, and not an assignment of the entire and if the insured die during the war, though term which would transfer any right of action a revival of the contract is impossible, the asagainst lessor.

Id. sured is entitled to a paid-up policy for such 13 The sublease and rent reserved are to be

amount as could be purchased by the excess considered by the jury in determining the when the payments were first omitted, above

of premiums paid upon the policy at the time damage.


the amount necessary to compensate the in14 Future profits, or the enhanced value of the

surer for the risk carried up to that time. lease which might arise from the association | Crawford v. The Ætna Life Ins. Co. 35 of the owners of this and similar property,

3 The intervention of the war made it unlawmay be cousidered by the jury on the question ful for the assured to pay premiums thereof damage.


after; and this without reference to the proc15 A bill of sale of the stock, fixtures, and lamations of the President in relation to inleases of a store operates as an assignment of surrectionary districts and commercial inter. the leases described in it. Booth et al. v. Kehoe course.

Id. et al.


4 In construing a policy of life insurance, a 16 A presumption of fraud cannot arise upon

temporary ailment, in order to be called a disthe assignment of a lease the same as upon a

ease, must be such as to indicate a vice in the transfer of personal property not followed by constitution, or be so serious as to have some actual and continued change of possession. . bearing on the general health and continuance

of life, or such as is commonly called a disease. 17 A recovery by a lessee of the full value of Cushman v. The U. S. Life Ins. Co. 86 the use of premises included in the lease for the time he was deprived of possession is 5 In order to constitute medical attendance it equivalent to possession, and he is thereby es

is not necessary the physician should attend topped from setting up want of possession as

the patient at his own home, an attendance at a defence to a subsequent action for rent.

his own office is sufficient.

Id. Knox v. Hexter.


6 A statement in the proof of death, by the See ALTERATIONS; CONTRACT, 28; RAIL- physician making it, that he had been the ROAD COMPANIES, 7.

medical attendant for a longer period than the policy had run, will not prevent proof on the

trial as to who was the usual medical attendLEGACIES. ant of the insured.

Id. See WILLS.

7 Where an action on a policy of life insur. ance is defended on the ground that the state

ment in the application that the habits of apLICENSE.

plicant were temperate was false, evidence of

intimate friends of insured that they rememSee CIVIL DAMAGE ACT, 5; EXCISE. bered him drinking very seldom, never saw

him intoxicated or under the influence of LIENS.

liquor, and had known him to refuse liquor,

and never saw anything to induce the belief 1 Where the holder of a prior judgment has that he was not perfectly temperate, although made an agreement with a junior mortgagee negative, is pertinent and competent to be that the lien of the judgment shall be post- given on a question of the habits of sobriety poned and considered subsequent to that of of the insured. Van Valkenburgh et al. v. the mortgage, the lien of a purchaser under the American Pop. Life Ins. Co.


new one.

8 A question in an application for life insurance the policy and not to the justness of a cause
as to the use of intoxicating liquors does not of action thereon. The Charter Oak Life Ins.
refer to a single or incidental, but to a custom- Co. v. Rodel.

ary or habitual use.


17 If there is any evidence tending to prove
9 Where, after judgment for plaintiff in an

that deceased was insane when he took the
action to have a policy, which is claimed to poison which caused his death, the question

have lapsed, declared valid and binding, which should be left to the jury.
judgment gives an election to pay the over-due 18 To make the insuring company liable in
premiums within a certain period or to take a cases of suicide, the mind of the deceased
paid up policy, the plaintiff delivers up the must have been so far deranged as to have
policy with an instrument cancelling it, both made him incapable of using a rational judg.
of which are kept by the company after the ment in regard to the act he was committing.
General Term has modified the judgment by If he was compelled to the act by an insane
striking out the provision giving an election, impulse which the reason that was left him
and the company neglects to deliver them up did not enable him to resist, or if his reason-
on demand, without notice of their intentions, ing powers were so far overthrown by his
this is equivalent to a declaration that no ten- mental condition that he could not exercise
der of tb: premiums would be accepted, and his reasoning faculties on the act which he
such tender need not be made. Huyner v. was about to do, the company is liable. Id.
The American Pop. Life Ins. Co.


19 Where a married woman was induced by
10 Where one company, in pursuance of an

the influence and coercion of her husband to
agreement to reinsure the risks assumed by assign two policies on his life, which she
another, upon surrender of a policy in such owned, to secure a debt of her husband, and
other company, issues a policy in consideration

the creditor receiving it arranged with the
of the representations made in the application husband to have the policies lapse, and then
for the surrendered policy, such application take out new policies payable to the creditor.
and representations to apply to and make a

Held, That the new.policies merely took the
part of the policy and warranted to be true.

place of the old ones, and the money payable
Held, That such warranty related to the date

thereon must go to the party entitled under
of the original policy and not to that of the

the old policies. Barry v. Brune et al. 437
Cohen v. The Continental Life Ins. 20 Where the insurance company is willing to


pay the amount due to the person entitled to

it, the Court may determine conflicting claims
11 Where the reinsuring company was to as- to the fund, and provide for the protection of
sume all the risks of the original insurer, it the insurance company against double pay.
cannot set up as a defence to an action by one ment.

of its policy holders that the risk was not such
as a life insurance company could safely or

21 A life insurance company cannot maintain
properly take.


an action for damages against the murderer of

a person insured in such company. The Mu-
12 In an action upon a policy, plaintiff has a tual Life Insurance Co. v. Brame. 511
right in complaining to rely upon such aver-

22 A policy of insurance upon the life of a mar-
ments as state a cause of action, and is not
bound to anticipate the defence.


ried man, issued upon his application and pay-

able to his wife, is in the nature of a provision
13 Where the reinsuring company has notice to

for the support of the wife during widowhood,
produce its contract of reinsurance and de-

and is not assignable. Wilson v. Lawrence. 552
clines to do so, every intendment is to be taken See MORTGAGE, 4.
against it.

14 In an action upon a policy of insurance

which provides that it shall be void in case the

See Excise.
insured should die by his own hand, when the
insured has committed suicide, but it is

claimed that he was insane at the time, the
plaintiff must prove that he was in fact in- 1 In an action for malicious prosecution the
sane. Sanity will always be presumed. Weed burden of proof is on the plaintiff to establish
v. The Mutual Benefit Life Ins. Co.


the want of probable cause for the prosecution,

and where the facts are conceded, the question
15 If, although there is evidence tending to

of probable cause is one of law for the Court.
prove insanity, it is insufficient to sustain a Stewart v. Shellman.

verdict in favor of the claim, and a verdict
finding the fact would be set aside as not war-

2 But if the facts which are adduced as proof
ranted by the evidence, a nonsuit is proper.

of want of probable cause are controverted;
Id. if conflicting evidence is to be weighed; or the

credibility of witnesses is to be considered ; or
16 A clause in a policy which requires that no- the facts are capable of different inferences by
tice “ of the just claim of the assured” shall fair-minded men of ordinary prudence, the
be given, has reference to the claim or title to I question of probable cause becomes a mixed

one of law and fact, to he submitted to the 9 A proceeding by mandamus to require a
jury under proper instructions from the Court. Board of Supervisors to ascertain, fix and de-

Id. termine the amount which a party is entitled

to receive back from a town or towns for taxes
3 An action for malicious 'prosecution on a paid while the boundary line between such
charge of grand larceny cannot be maintained

towns was in dispute, is proper. The People et
if the prosecution is not determined before the re. Witherbee v. Supervisors of Essex Co. 346
action is begun. The proceedings initiated
before a Justice of the Peace are not ended 10 The death of one of several relators after
until the grand jury meets, and the case is the proceedings are commenced does not
presented and ignored, or the complainant abate the writ; after a return to an alterna-
fails to prosecute, Swartwout v. Dickelman. tive writ and issue joined, the proceeding be.

comes an action,


11 A peremptory writ of mandamus ought not

to be granted where almost every material fact
1 The writ of mandamus is not a writ of right, alleged is denied by the defendants. Such
and a Court may, and should, refuse to grant writ is only proper in a case of clear, unques-
it where a proper case for such refusal is pre- tionable legal right. The People ex rel. The
sented, and where the relator has another rein. | N. Y. & C. RR. v. Hutton et al.

edy equally as effective, and attended with
less hardship to those sought to be affected by | 12 A peremptory mandamus will not be award-
the writ. The People ex rel. Mc Kone v. Green ed unless a clear, unquestioned legal right to
et al.

41 the same is made out. The Pcople ex rel.
Cuyler v. Supervisors of Albany.

2 A writ of mandamus to a Board of Supervi-
sors will lie to require them to vacate an or-

13 So held, even where the affidavits read in
der made by them by which they allow exces-
sive commissions. No personal interest in the opposition to the motion were very evasive.

relator is necessary. The People ex rel. Lau-
rence v. Board of Supervisors.


14 Where a village charter provides that no
3 The Court will not direct, as a general rule, moneys shall be paid out of the truasury, er-
á writ of mandamus to issue, to compel the cept on warrant of the trustees, and a subse-
payment of a claim which is disputed. The quent statute authorizes the trustees to raise
exception is when there is no other remedy. the auditors, a mandamus will not lie to com-

money and pay claims upon the warrant of
The People ex rel. Miller v. Board of Police pel the payment of a claim agninst the village


in the absence of a warrant of the auditor.
4 A mandamus will lie to a railroad company

An authenticated copy of the minutes of a
to require it to build a bridge over a turnpike meeting of the Board of Auditors, showing
crossing when the company has failed to do the audit of the claim, is not equivalent to
80 upon request. The People ex rel. Kimball such warrant. The People ex relo Cooke v.
v. T'he B. & A. RR. Co.


5 Where the charter of a city provides that

the Superintendent of the Fire Department SANCE, 2.
“ may suspend, and for cause and after a
hearing, dismiss any fireman or employee of

the department,” a mandamus will lie against
the Superintendent where he has discharged 1 In actions for injuries resulting from marine
the stoker of an engine without a hearing. collisions, the question is one of negligence on
The People ex rel. Donohue v. French. 298 the part of those in charge of the respective

vessels, and that question is one for the jury.
6 A peremptory mandamus to compel a Coun- | Hofman, et al. v. The Union Ferry Co.
ty Treasurer to pay an account which has
been audited by the Board of Supervisors will / 2 A mere omission to comply with a statutory
not be allowed, where it appears that a portion regulation will not bar an action by the injured
of the claim is fraudulent, and that there is vessel, where it appears that such omission did
no legal authority for the allowance of another not contribute to the injury directly or indi.
portion. The People ex rd. Slavin v. Wendell. rectly, but that it was caused solely by the neg.

312 ligence or want of proper care or caution in the
management of either of the vessels.

7 The granting of a peremptory mandamus is
a matter of discretion.

Id. 3 Evidence that other vessels plying the same

waters carried the same lights as the injured
8 Although the Court is authorized to issue an vessel, and different from those prescribed by
alternative mandamus in a case where the statute, is competent for the purpose of bring.
facts are disputed, or upon the suggestion of ing home to those in charge of the other ves.
either party, yet if such suggestion is not sel actual notice of the true position of the
made, the party cannot complain that an al- | injured vessel, the direction of her course and
ternative writ was not granted.
Id. I the service she was in.



4 It is for the jury to determine whether the defendant, does not survive against defendant's
master of the injured vessel exercised due care executor. Price v. Price.

in proceeding through a dense fog. Id.

2 A marriage procured by fraud is voidable
5 It is no defence to such an action that the only at the election of the party defrauded.
injured vessel had no lights, although such | The party who commits the fraud is bound
omission was in violation of law, where such and remains bound until the other party has
vessel could be seen without them. Id. made his or her election. Tomppert's exrs. v.


6 In an action for injuries resulting from a
marine collision, the expenses incurred in re- 3 The right to take advantage of the discovery
taining the crew after the collision and in at- of the fraud is personal and does not pass to
tempting to save the cargo are proper items the executors of the defrauded party. Id.
of damage.


4 Hearsay and traditional evidence of a mar-
7 Where the failure of those on board of a riage is not conclusive, but is prima facie evi-
canal-boat, which is part of a tow, to display a dence of a marriage or of an agreement per
light has contributed to the accident, no re- verba de presenti, followed by cohabitation
covery can be had, although it was in part sufficient for the administration and devolu-
caused by the negligence of those in charge of tion of property. Chamberlain et al. v, Mc-
the tow-boat. The Arctic Fire Ins. Co. v. Kibben et al.



5 C lived with one E, a woman of previous
8 The fact that the proprietors of the tow-boat unchaste character, and had one child by her;
undertook to propel the canal-boat “at the they afterward separated. E afterward joined
risk of the master and owners," does not con- with him in a deed of his property. There was
stitute them common carriers, or render them hearsay evidence that he had stated that she
liable for the acts of those in charge of the was his wife. He afterward formally married
canal-boat, within the doctrine of respondeat one S, who lived with him until his death.

Id. E outlived him, but made no claim upon him
9 The question whether the captain of the tug: marriage to S was lawful.

as his wife or upon his estate. Held, That the

boat was also captain of the canal-boat, and as
such omitted to take proper precautions for

safe navigation, &c., is one of law, and should
not be submitted to the jury.


10 Where a schooner lying at anchor, with the | 1 Where a married woman borrows money for
proper lights set, is run into and sunk by a the benefit of her separate estate, such estate
steamer, the steamer is liable. McCloskey et is charged as soon as the debt is contracted,
al. v. Steamship Achilles et al.

241 and the obligation cannot be affected by a sub-
11 The measure of damage in such case is the sequent diversion of the money to another

purpose. McVey v. Cantrell.

price a prudent owner, wishing but not com-
pelled to sell, would reasonably expect and 2 While parol evidence is inadmissible to show
probably be able to get in a reasonable time, an agreement to charge the separate estate of
at public or private sale, without forcing the a married woman where the obligation sued
sale, and using proper measures to avoid un- upon is in writing, the intention to charge it
due sacrifice.

Id. may be presumed from the nature of the


3 A married woman has no separate estate
1 The term “port risk” in a marine insurance where her only property is her interest in a
policy means a risk upon a vessel while lying farm which was deeded to her and her hus-
in port, and before she has taken her depart- band jointly. Baker v. Lamb.

ure on another voyage. Nelson v. The Sun 4 A promissory note given by a married wo-
Mutual Ins. Co.


man under such circumstances is invalid. Id.
2 Where the ordinary voyage policy blank is 5 An agreement to charge the separate estate
used in making out the policy, the risk is re- of a married woman must be included in the
stricted by the words, “port risk,” used there original contract in order to bind it. Eisen,
Id. lord v. Snyder et al.


6 To maintain an action against the executors

of a married woman, to recover for services
1 A contract for wharfage is a maritime con-

rendered to her, it is necessary to establish not
tract, and may be enforced in admiralty by a only a promise to pay for such services, bouti
proceeding in rem against the vessel, or by a that such services were for the benefit of her
suit in personam against the owner. Ex parte separate estate, and that they were to be a
Euston et al.

335 charge thereon. Neither deciarations by de.

ceased that she intended to provide for plain-

tiff by will, nor a provision therefor in the
1 An action to recover damages for fraud and will itself, will make the ciain a charge upon
deceit, whereby plaintiff was induced to marry I the estate.


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