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laws of the State, any subsequent Legislature is not fense to an action against a town for damages to land thereby deprived of the power to alter the law and re- from an overflow of water occasioned by the negligent move the exemption. People v. Roper, 35 N. Y. 629; management of an adjacent bighway, that the water East Saginaw Manf. Co. v. City of East Saginaw, 19 was prevented from escaping the land as quickly as it Mich. 259; S. C., 13 Wall. 373; Rector, etc., of Christ otherwise would by reason of an embaukment made Church v. County of Phila., 24 How. 300; Hager v. Su- by the owner of the land for a walk. Parker v. Nashua. pervisors of Yolo Co., 47 Cal. 222. Iu Salt Co. v. East Opinion by Allen, J. Saginaw, 13 Wall, 373, it is held that a State law offering to all persons, and corporations to be formed for the purpose, a bounty of ten cents for every bushel of salt manufactured in a State from water obtained by WISCONSIN SUPREME COURT ABSTRACT. boring in the State, and exemption from taxation of the property used for the purpose, is not a contract in
SUNDAY - - TRAVELLING ON, NO DEFENSE IN NEGLIsuch a sense that it cannot be repealed. Such a law is
GENCE. -In an action by a passenger in a street car for nothing but a bounty law, and in its nature a general
injury from the railroad company's negligence, held, law, regulative of the internal economy of the State,
that the fact that the injury occurred on Sunday was dependent for its continuance upon the dictates of
not a defense. The right of the plaintiff to recover is public policy and the voluntary good faith of the Leg
not affected by the fact that he was travelling for islature. General encouragement, held out to all per
pleasure on the Sabbath day. He did not thereby besons indiscriminately, to engage in a particular trade
come an outlaw, but was as much within the protecor manufacture, whether in the shape of bounties,
tion of the law, and was entitled to the same degree of drawbacks, or other advantage, are always under the care by the defendant to protect him from injury as legislative control, and may at any time be discontin
though he had postponed bis ride on the defendant's ued. Shiner v. Jacobs. Opinion by Rothrock, J.
car until the following day. It was so held in Sutton v. Wauwatosa, 29 Wis. 21, and the rule was reasserted
and empbasized in McArthur v. G. B. & M. Canal Co., NEW HAMPSHIRE SUPREME COURT 34 Wis. 139. The rule rests upon sound principle, and ABSTRACT. *
this court has no disposition to disturb it. Knowlton v. Milwaukee City Ry. Co. Opinion by Lyon, J. (45
Am. Rep. 304.) CORPORATION ESTOPPEL - OFFICERS MAKING CONTRACT WITHIN SCOPE OF AUTHORITY.--A corporation COVENANT-AGREEMENT AS TO MAINTAINING FENCE is estopped to deny its liability under a contract, on RUNS WITH THE LAND—TO BUILD DOES NOT-CONDIthe ground that its officers were not technically au- TIONS SUBSEQUENT NOT FAVORED CONSTRUED thorized to make it, or that its owu proceedings in the AGAINST GRANTOR.-Gerlach having built a barn which premises were irregular, when the contract was within projected over land lying west of his, belonging the scope of its powers, was entered into by proper offi- to Hartung, procured a conveyance of a strip of lavd cers, and has been recognized by corporate acts. “The adjoining his own from Hartung. Following the same presumptions are applicable to corporatious as granting part of the conveyance was this: “Upon the are continually made in relation to private persons." express condition that the fence around (on) said piece Hilliard v. Goold, 34 N. H. 230, 239; Sherman v. Fitch, of land is to remain where it now stands, so that the 98 Mass. 59. “If officers of a corporation openly exer- said Hartung shall have the right to join and connect cise a power which presupposes a delegated authority the fence of his land with the fence of said Gerlach; for the purpose, and other corporate acts show that and that said Gerlach shall always keep said fence in the corporation must have contemplated the legal ex- lawful repair, and not bring a suit against said Haristence of such authority, the acts of such officers will tung to recover damages done within Gerlach's inclosbe deemed rightful, and the delegated authority will ure by beasts belonging to said Hartung; and furbe presumed.” Bauk v. Daudridge, 12 Wheat. 64, 70; thermore that said Gerlach shall keep the entire fence Lyndeborough Glass Co. v. Mass. Glass Co., 111 Mass. around the west side of his, Gerlach's, land in lawful 315; McLaughlin v. Detroit & M. R. Co., 8 Mich. repair." Held, that the agreement as to the fence 100; Olcott v. Tioga R. Co., 27 N. Y. 564; Glidden was a covenant, and not a condition. A condition or v. Unity, 33 N. H. 571. Peterborough R. Co. v. a covenant may be created by the same words, and Nashua & Lowell R.Co. Opinion by Foster, J.
conditions subsequent are not favored by law, and
technical words do not make a condition if they are NEGLIGENCE – CLERK'S FAILURE TO ENTER MORT
controlled, and may be otherwise interpreted by the GAGE-DAMAGES-COUNSEL FEES-NOTICE TO DEFEND.
context or inatter of tho instrument, and they may -In an action for neglect of a city clerk to enter a
serve to work a covenant only according to the inten. mortgage upon the record iudex, whereby the plaint
tion of the parties. Paschall v. Passmore, 15 Penu. St. iffs were induced to take a mortgage of the same prop
295; Cromwell's Case, 2 Coke, 71a; Chapin v. School erty, supposing it to be unincumbered, counsel fees
Dist., 35 N. H. 445; Hoyt v. Kimball, 49 id. 326; Wheepaid in defending a suit by the prior mortgagee for the
ler v. Danscomb, 3 Cush. 285; Krantz v. KcKnight, 51 property will not be an item of damages unless
Penn. St. 232. First. This clause is not a condition, they were the natural and reasonably necessary conse
80 far as it relates to the maintaining of the fence ou quence of the negligence, and the defendant was noti
or near the west line, because there is no clause of forfied to take the defense of the suit and refused. Kings- feiture, and conditions subsequent must be strictly bury v. Smith, 13 N. H. 110, 121, 125; Robinson v. Hill,
construed against the grautor (Moore v. Pitts, 53 N.Y. 15 id. 477, 479; Richards v. Whittle, 16 id. 259,
85), because the penalty or compensation for its breach 260; Hoitt v. Holcomb, 32 id. 185, 211; Westfield v.
is provided for, rather than a forfeiture. In this clause Mayo, 122 Mass. 100, 105; 3 Pars. Cont. 213; Kennison
it is provided that in case that fence shall not be kept v. Taylor, 18 N. H. 220, 221; French v. Parish, 14 id.
in repair and maintained, and the beasts or domestic 496-502. Chase v. Bennett. Opinion by Allen, J.
animals of the grantor shall pass over the same into Town-OVERFLOW OF WATER-EMBANKMENT MADE
the premises of the grantee on that account, he shall BY OWNER NO DEFENSE TO ACTION-It is not a de- not be liable for any damages which they may commit.
Board of Ed., etc., v. Trustees, 63 Ill. 204. Because an *To appear in 59 New Hampshire Reports.
agreement to maintaiu a fence between the lands
granted and those of the grantor is never construed as the town managed by the society, that the object of a condition, but as a covenant. Sedg. & Wait, Tr., $ the institution was not gain, there being on the con213. The only exception to this rule (if it is an excep- trary geuerally a loss shown against the society. Held, tion) which I could find is the case of Emerson r. nevertheless, that the proposed user would be a breach Simpson, 43 N. H. 475. There it was a condition in the of the covenant, and must therefore be restrained. very strongest language, with a clause of forfeiture for Ch. Div., Nov. 23, 1883. Rowls v. Miller. Opinion by the grantee to maintain forever a good and lawful | Pearson, J. (49 L. T. Rep. [N. 8.) 628.) fence on the true line, at shis, the grantee's, own expense. The language of forfeiture was too strong for MALICIOUS PROSECUTION-BURDEN OF PROOF-REAthe court to construe it as a mere covenant, and under SONABLE CAUSE.-In an action for malicious prosecuthe rule of strict construction, and inasmuch as the tion the burden of proof as to reasonable and probable condition did not bind the heirs and assigns, it was cause lies on the plaiutiff, and if in order to show held to be a personal agreement, which continued only absence of reasonable and probable cause it is necesduring the life of the party bound thereby. See also sary to establish any minor propositions, the burden on a similar question Merrifield v. Cobleigh, 4 Cush. of proving each of such propositions also lies on the 184. This could hardly be called an exception, because plaintiff. Iu an action for malicious prosecution it the case was decided on its own peculiarities, and it was proved that the plaintiff had been charged by the was held that it was not a condition subsequent. Sec- defendants with conspiracy to defraud, had been comond. That part of the clause which relates to the mitted for trial by the magistrates, trie at the assizes, fence then existing is a covenant: (1) Because it is in and acquitted. The judge asked the jury to find the body of the deed, and under seal; (2) because it is whether the defendants had taken reasonable care to a real covenant, and runs with the land, and binds the inform themselves of the true state of the case before heirs and assigns of the grantee. 1 Hill. Real Prop. 363; taking proceedings, and whether the defendants 1 Washb. Real Prop. 497. It runs with the land be- honestly believed the case they laid before the magiscause it affects the land granted in the management trates, and he told the jury that the burden of proof and couduct thereof, and is not a mere collateral
was on the plaintiff. The jury answered both quesagreement, which is the test of a personal covenant.
tions in the affirmative, and the judge thereupon ruled Spencer's Case, 5 Rep. 16; Patten v. Deshou, 1 Gray,
that there was no absence of reasonable and probable 325; Howland v. Coffin, 12 Pick. 125; Van Rensselaer cause, and directed a verdict for the defendants. Held v. Hays, 19 N. Y. 81; Cook v. Brightley, 46 Penu. St. (reversing the judgment of Grove and Lopes, JJ.), 445; Scott v. Hunt's Adir., Pet. 606; Baldwin v. that the direction was correct, and the defendants Walker, 21 Coun. 168; Crawford v. Chapman, 17 Ohio,
were entitled to judgment. Ct. of App., June 22, 1883. 849; Plumleigh v. Cook, 13 Ill. 669; Bronson v. Coffin, Abrath v. North Eastern R. Co. Opinions by Brett, 108 Mass. 175. Such a covenant operates as a charge M. R., and Bowen and Fry, L. JJ. (49 L. T. Rep. [N. upon the estate, and affects the value thereof (1 Shep. S.] 618.) Touch. 140-179), and imposes a servitude upon the land granted. Brewer v. Marshall, 18 N. J. Eq. 338; Dor
RAILWAY sey v. St. Louis, A. & T. H, R. 06., 58 I11. 66; Norfleet
CROSSING-CONTRIBUTORY NEGLIGENCE.-Plaiutiff was v. Cromwell, 64 N. C. 1; Bally v. Wells, 3 Wils. 25; crossing a railway by a level crossing. A hedge and Duffy v. N. Y., etc., R. Co., 2 Hilt. 49; Platt, Cor? buildings obstructed the view, so that he could not see 481; Beddoe's Exr. v. Wadsworth, 21 Werd. 120; Nor along the line to the left until he got on to the railway, man v. Wells, 17 id. 136; í Smith, Lead. Cas. 115; 2
but he could then have seen and he did not look. He Keut, Comm. 472; 2 Hill. Real Prop. 371; Kellogg v.
was injured by a train approaching from the left on Robinson, 6 Vt. 276; Tyl. Bound. 314; Hunt Bound.
the further line. The engine-driver did not whistle, 50. (3) Because it relates to a fence already in esse, and
and the gatekeeper at the level crossing gave no binds the grantee to maintain and keep it in good re
warning. In an action against the railway company pair. A corenant to build aud maintain a partition
to recover damages for the injury, held, that these fence or party wall does not run with the land, and is
facts showed that the injury was caused solely by only personal. Platt, Cov. 471; Tayl. Landl. & T. 301;
plaintiff's own negligence, and therefore there was no Williams Landl. & T. 290; Lametti v. Anderson, 6 Cow.
evidence of defendants' liability to go to the jury, and 307 ; Tbompson v. Rose, 8 id. 266; Allen v. Culver, 3
plaintiff was rightly nonsuited. Judgment of the Denio, 284; Tallman v. Coffin, 4 N. Y. 136; Sampson v.
Queen's Beuch Division affirmed. Ct. of App., Nov. Easterby, 9 Barn. & C. 505; Doughty v. Bowman, 11 Q.B. 28, 1883. Davey v. London & Southwestern R. Co. 44; Congleton v. Pattison, 10 East, 138; 6 Bing. 644;
Opinions by Brett, M. R., and Bowen, L. JJ. (49 L. T. Cole v. Hughes, 54 N. Y. 444. Hartung v. Witte: Rep. [N. S.] 739.) Opinion by Orton, J.
PARTNERSHIP-FIRM OF SOLICITORS-LIABILITY FOR TORT OF COPARTNER.—The plaintiffs, trustees of a will,
deposited with P., a partner in the firm of solicitors RECENT ENGLISH DECISIONS.
which acted for them in the administration of their
trust estate, certain bouds payable to bearer, part of LEASE-RESTRICTIVE COVENANT AGAINST TRADE
their testator's estate. Some of the bonds were realCHARITABLE BUSINESS. — The application of the words ized, and their proceeds accouuted for. P. retained **trade or business of any description whatsoever" in the rest for safe custody. The other partners had no a restrictive covenant extends to the user of the premi-actual knowledge of this, but letters referring to the ses for something about which charitable people oo
bonds were charged for in the firm's bill of costs, aud cupy themselves sedulously without any object of copied in the firm's letter-book. P. also on some ocgain, and which would be ordinary business if carried casions paid the interest received ou the bonds by the on by an individual for the purpose of profit. A les- firm's checks, and these payments were entered in the see of a house in London, held under a lease contain. firm's ledger. P. made away with the bonds. Held, ing a restrictive covenant of the above nature, pro
that under the circumstances P.'s partners had notice posed to allow it to be opened by a certain charitable
that P. had undertaken the custody of the bonds as society as a home for working girls. The girls were to
tirm business, and were liable for their loss. Ch. pay a small sum for board and lodging, but it appeared, Div., July 23, 1883. Cleather v. Twistden. Opinion by from balauce-sheets of similar homes in other parts of Denman, J. (49 L. T. Rep. [N. S.) 633.)
CRIMINAL LAW-FALSE PRETENSE-LETTER MAILED LETTER OF CREDIT-LIABILITY FROM AGREEMENT IN ENGLAND FOR FRANCE. -- A false pretense was TO ACCEPT.-(1) In order to render the writer of a letmade by letter in N., England, and posted there to, ter of credit liable, either upon an implied acceptance and received by a person in France. In consequence or an agreement to accept drafts taken on the faith of of the letter that person drew a check in France, such letter, the drafts must be taken for a valuable payable at N. in England, and sent it to the prisoner consideration. A promise to have the drafts disat N. in England, who cashed the check in England. counted, and to take up notes on which the persons Held, that the prisoner was properly indicted and taking the drafts are liable as indorsers, is not a valutried at N. in England. Crown Cases reserved. No- able consideration. (2) If a letter of credit provides vember 24, 1883. Regina v. Holmes. Opinion by that drafts drawn under its authority shall be used Lord Coleridge, C. J. 49 L. T. Rep. [N. S.] 540.)
only for the purpose of being discounted at a particu
lar bank, persons taking such drafts, with notice that PROMISSORY NOTE - INDORSEMENT—INDORSER's co
they have been offered to the bank for discount and SURETIES. — The whole facts and circumstances at tending upon the making, issue, and transfer of a bili January Term, 1883, Sherwin v. Brigham. Opinion by
refused, cannot recover thereon. Ohio Supreme Ct., or note may be referred to in order to ascertain the
Upson, J. (39 Ohio St. 137.) true relations of the parties who have put their signature upon it. The respondent was sued as indorser of NEGOTIABLE INSTRUMENT - INDORSEMENT COXa promissory note, and was held liable to pay the
STRUED A GUARANTY-LIABILITY OF INDORSER. — M. amount. He then brought an action against the ap
sold and delivered to B., before it was due, the promis. pellant as prior indorser. It appeared that the note
sory note of H., payable to K. (but which had never in question had been made by a company of which the been indorsed by K.), and at the time of the delivery appellant and respondent were both directors, and M. iudorsed it "holden without demand or notice." had been deposited with the baak as security for an
H. was solvent at the time of the maturity of the note, overdraft by the company, and bad been indorsed by and for about three years thereafter, when he became the appellant, the respondent, and two other directors of
utterly insolvent. In the meantime M. made one or the company, at the request of the bank, who asked
more requests of B. to collect the note of the maker. for the personal guaranty of the directors. Held
In a suit afterward brought by B. against M. to re(reversing the judgment of the court below), that
cover the amount of the note, held, that M. was a under these circumstances the proper legal inference
guarantor; that by the terms of his indorsement he was that the parties had indorsed as co-sureties, and
waived a demand and notice; that he was liable to B. that the ordinary principles of the law merchant as to
for the amount of the note. Birchard v. Bartlett, 14 the liabilities inter se of the successive indorsers of a
Mass. 279; Irish v. Cutter, 31 Me. 536; Bickford v. note did not apply. Privy Council. July 11, 1883.
Gibbs, 8 Cush. 156; Wildeg v. Savage, 1 Story, 22. MacDonald v. Whitfield. Opinion by Lord Watson.
Maine Supreme Judicial Court, December 14, 1883. (49 L. T. Rep. [N. S.] 446).
Bray v. Marsh. Opinion by Danforth, J. (75 Me. 462.)
SAVINGS BANK-DUTY OF REASONABLE CARE-PAYFINANCIAL LAW.
MENT TO WRONG PERSON.-A stipulation between a
savings bank and a depositor, that his deposit may be CURRENCY-FEDERAL TAX ON NOTES ISSUED FOR
paid to any one presenting his book, does not relieve CIRCULATION--NOTES PAYABLE IN GOODS.-(1) Section
the bank from the duty of exercising reasonable care. 19 of the act of Congress, of February 8, 1875, which
New Hampshire Supreme Court. Kimball v. Norton. provides, “that every person, firm, association, other
Opinion by Doe, C. J. (59 N. H. 6.) tban National bauk associations, and every corporation, State bank, or State banking association, sball pay a tax of 10 per cent on the amount of their own notes used for circulation and paid out by them,"
INSURANCE LAW. must be construed as limited in its effect to notes payable in money; otherwise all sorts of negotiable paper, FIRE POLICY-SOLE AND UNCONDITIONAL OWNER.such as "grain receipts,” fare tickets, and the like,
A policy of fire insurance described the property inmight be subject to the same taxation. (2) Section
sured as “his two-story dwelling-house," etc., and it 2172, United States Revised Statutes, provides how the
appeared that he had purchased the fee and taken a notes contemplated by the National Bank Act shall be
bond for a conveyance, but that the vendor bad only a printed and what they shall contaiu. No provision is
life estate in the property, with a remainder in sixmade for a note for less than one dollar. A note for a
sevenths thereof; that a suit had been instituted to fractional sum is not only unknown to the law, but its
perfect the title, to which the jusured was a party; issue is unlawful. Section 3583. The Supreme Court,
and that there was an outstanding purchase note, by deciding that an obligation“ payable in goods
which be owned at the time of the insurance and the was not illegal, has left the inference to follow almost
loss. Held, that the outstanding note, and the fact necessarily that it was not such a note as was contem
that the iusured only held under a title bond, was not plated by the statute, and therefore not taxable. U. S.
material to the risk, and that the fact of the outstandDist. Ct., N. D. New York, March, 1883. Matter of
ing seventh interest or remainder did not prevent him Aldrich. Opinion by Coxe, J. (16 Fed. Rep. 369.)
from being “the sole and unconditional owner," INDORSEMENT-RESTRICTED ONE TO AGENT- EVI- within the meaning of the policy. See I:surance Co. DENCE.-An indorsement, “ Pay B, or order, for ac- v. Haven, 95 U. S. 245; Hough v. City Ins. Co., 29 count of C," is a restricted indorsement, vests no gen.
Conn. 10; Wineland v. Security Ips. Co., 53 Md. 276; eral property in B., but simply constitutes him the American Basket Co. v. Farmville Ins. Co., 3 Hughes, agent of C. for the purpose of collection. Such an in- 251 ; Washington Mills Co. v. Commereial Ins. Co., 13 dorsement is a contract in writing, and not subject to Fed. Rep. 646; Waller v. Northern Ass. Co., 10 id. 233; contradiction by parol testimony. Kansas Supreme Rumsey v. Phønix Ius. Co., 1 id. 396. U. S. Cir. Court, July Term, 1883. Armour Brothers' Banking Ct., Kentucky, Feb. 19, 1883. Williams v. Buffalo Co. v. Riley County Bank. Opinion by Brewer, J. (30 German Insurance Co. Opinion by Barr, J. (17 Fed. Kaus. 163.)
FIRE POLICY-PAROL APPLICATION-OPNION AS TO premium) by the net value of the policy as a single MATTERS MATERIAL TO RISK DOES NOT AVOID.—Plaint- premium, all unpaid notes given for annual premiums, ifr's agent, an insurance broker, applied to the agent including those for the part of the year subsequent to in Boston of the defendant iusurance company for an the forfeiture, are deducted in determining the net insurance on certain property of the plaintiff in value of the policy. Foster v. Hill, 36 N. H. 526; Pitt Bridgewater. When he made the application, he v. Berkshire Life Ins. Co., 100 Mass. 500. New Hamp. showed a printed list which he stated he believed was shire Sup. Ct. Marston v. Massachusetts Life Ins. Co. a correct list of the existing insurance on the plaint- Opinion by Allen, J. (59 N. H. 92.) iff's property at Bridgewater; but this list did not contain a policy then existing and issued by the defend. ant, in part covering a portion of this same property. This error in the expression of belief was wholly unin
CRIMINAL LAW. tentional, and the defendant's agent, by looking at the books and records in his office, could have ascer. INDICTMENT - AVERMENT AS TO TIME. - The avertained in a few minutes whether the list was correct. ment of time in an information, as in indictThe defendant's agent made a verbal contract to effectments, must be of a day certain before the time of the insurance, and subsequently a policy was issued fling the information, and within the period in which to the plaintiff. The policy contained the warranty by the statute of limitations the offense is punishable. that all the facts and circumstances in regard to the Hinson v. State, 7 Mo. 244; State v. Pratt, 14 N. H. property insured, as far as known to the assured and
459; State v. Caverly, 51 id. 446; Com. v. Doyle, 110 material to the risk, had been truly stated in the ap- Mass. 103; State v. Davidson, 36 Tex. 325; 1 Arch. Cr. plication for insurance; and provided that "if any Pl. 257 ; 2 Hawk. P. C., ch. 25, $ 77. New Hampshire material fact or circumstance shall not have been Sup. Ct. State of New Hampshire y. Ingalls. Opinion fairly represented,” the risk should cease and deter- by Allen, J. (59 N. H. 88.) mine and the policy be null and void. Held, that the policy was valid and binding on defeudant. There INCEST-BROTHER-IN-LAW AND SISTER-IN-LAW.-A was no written application such as was apparently brother-in law and sister-in-law are, within the meancontemplated by the provisions of the policy; anding of the statute prescribing the punishmeut of incest, expressions of opinion and belief made in good faith nearer of kin, by affinity, than cousins. Supreme Ct. as to matters material to the risk are not to be taken of Ohio, January Term, 1883. Stewart v. State of Ohio. as misrepresentations of fact. National Bank v. In- Opinion by the Court. (39 Ohio St. 152.) surance Co., 95 U. S. 673; Wood v. Firemen's Insur
ARSON VARIANCE ADJOINING."- An indictance Co., 126 Mass. 316. If the insurance company is
ment, charging that the respondent attempted to set content with expressions of belief, if they are honestly
tire to an out-building adjoining a dwelling-house, is made, it has no right to complain that facts or circumstances have not been fairly represented. Especially
not supported by evidence tbat the building was near must this be so, when the means of correcting any joining" is a synonym for “ adjacent to,”, “contigu
to but not in contact with the dwelling-house. "Aderror are in its own power, and it fails to avail itself of
ous," that is, in contact with. Arkell v. Ins. Co., 69 them. Massachusetts Sup. Jud. Ct., March, 1883.
N. Y. 192; Rex v. Hodges, 1 Moo. & M. 341; Peverelly Bridgewater Iron Co. v. Enterprise Ins. Co. Opinion
v. People, 3 Park. 59; 2 Kuss. Cr. 557-561. New Hampby Devens, J.
shire Sup. Ct. State of New Hampshire v. Down3. LIFE POLICY-FAILURE TO PAY PREMIUM-DECLA
Opinion by Stanley. (59 N. H. 320.) RATION OF AGENT EVIDENCE OF WAIVER NOTICE AND PLEA IN ABATEMENT-INDICTMENT PENDING, BADPROOF OF DEATH-NOTE GIVEN FOR PREMIUM-WHEN CONVICTION OR ACQUITTAL.-It is well settled, on POLICY FORFEITED-NET VALUE POLICY.--(1) The dec- both reason and authority, that the pendency of an laration of the agent of a life insurance company, have indictment is not good ground for a plea in abatement ing notice of the death of the assured, that the policy to another indictment in the same court for the same was forfeited by a failure to pay the premium when cause. Whenever either of them-and it matters not due, and making no objection to the want of formal
which—is tried and judgment pronounced thereon, notice and proof of death, is evidence of a waiver of such judgment will afford a good plea in bar to the the provision in the policy requiring due notice and other, either of autre fois convict, or autre fois acquit; proof of death within a given time. Goodwiu v. Insur- but nothing short of a conviction or acquittal will ance Co., 73 N. Y. 480. (2) The occasional payments support such a plea. Commonwealth v. Drew, 3 Cush. of premiums and notes given for premiums, after due, 279; Regina v. Goddard, 2 Ld. Raymond, 920; Whart. and consequent renewals of the policy by the company Crim. Plead. and Prac., $ 431; 4 Hawk. P. C. 309; Fost. are not a waiver, as to premiums subsequently due, of C. L. 105; 1 Chit. C. L. 446. Pennsylvania Sup. Ct., the stipulation in the policy making a failure to pay Nov. 5, 1883. Smith v. Commonwealth of Pennsylvania. any premium or premium pote when due condition Opinion by Sterrett, J. of forfeiture of the policy. When the annual premium is paid partly in cash and partly by a note payable be
VARIANCE MISNOMER IN INDICTMENT FOR NUIfore the end of the year, and a receipt renewing the
SANCE. — (1) The State's attorney filed an information policy for a year is given, the policy is forfeited when under the liquor law against the respondent, as the note is due on a failure to pay it at that time. See
“ Thomas, J.," for maintaining a nuisance. The reNew York Ins. Co. v. Statham, 93 U. S. 24; Howell v. spondent pleaded in abatement that his name was Knickerbocker Life Ins. Co., 19 Abb. Pr. 217; “Timothy, J.” Held, that the information was Patch v. Phønix Ins. Co., 44 Vt. 481: Robert v. New amendable. As said by the court in Turps v. ComEngland Life Ins. Co., 1 Dis. (Ohio) 355; Thompson v.
monwealth, 6 Metc. 224: “The issue for the jury of Knickerbocker Life Ins. Co., U. 8. Cir. Ct., So. Dist.
trials is not what is the individual's name, but whether Ala., 1876; 3 Am. L. T. Rep. 370; Mutual Benefit Ins. the person who has pleaded in chief on his arraignCo. y. French, 2 Cin. Sup. Ct. Rep. 321; Roebner v. ment is guilty of the offense charged upon him. The Knickerbocker Life Ins. Co., 4 Daly, 512. (3) Under
conviction, therefore, must follow the indictment. the non-forfeiture law of Massachusetts (Gen. Sts. of
The exception can be taken only in abatement.” It Mass., ch. 186), providing for extending life insurance
could not be reached by demurrer. Scott v. Soons, 3 companies (otherwise forfeited for non-payment of a
East, 111. It, at most, is a formal defect within the scope of State v. Arnold, 50 Vt. 731. Such defects and valuable as a book of reference, and though I hare greater in informations were amendable at the con- read with much interest the various pamphlets issued, mon law. Regina v. Steadman, 2 Lord Raymond, and the editorials and communications to the JOUB1307; Rex v. Seawood, id. 1472; Rex v. Harris, 1 Salk. NAL, yet I cannot quite answer to my own satisfae47; State v. Weare, 38 N. H. 314. Vermont Supreme tion many objections to civil codification. Court, May Term, 1883. State of Vermont v. Murphy, Without presuming to obtrude any views of my Opinion by Ross, J. (55 Vt. 547.)
own, I desire to cite the preface to the first edition of “Byles on Bills," as embodying tersely and con
cisely, what appears to be the main, though perhaps CORRESPONDENCE.
not unanswerable objection to a Civil Code. He
says: GOING FOR MR. GOEPP
"Simple as the form of a bill or note may appear,
the rights and liabilities of the different parties to Editor of the Albany Law Journal:
those instruments have given rise to an infinity of I have tried hard to keep informed upon the discus- legal questions, and multitudes of decisions. A striksion, to which you have given up so many pages, about ing proof of what the experience of all ages bad already the proposed Civil Code. I have read most of the let- made abundantly manifest - that law is, in its own Da. ters you have published, and all but one I hope under- ture, necessarily voluminous; that its complexity and standingly. I refer to Mr. Goepp's letter on page 280. bulk constitutes the price that must be paid for the As I fear there are others who cannot comprehend it, reign of certainty, order and uniformity; and that any I trust you will in some way make plain the utility of attempt to regulate multiform combinations of cirits publication.
cumstances by a few general rules, however skilfully Mr. Goepp first said-page 219—that one reason why constructed, must be abortive." we need a Civil Code is because a friend of his had to
EDWIN QUACKENBUSH. travel 120 miles to find a decision upon a point in BALLSTON SPA, April 7, 1884. Criminal Procedure and then could not find the book.
[We have outgrown Byles on Codification, just as Mr. Hornblower then said-page 259—that this shows we have outgrown Noah on Navigation.-ED. ALB. no reason for a Civil Code, because we already have a LAW JOURNAL.] Code of Criminal Procedure where the principle of such a decision ought to be codified, if at all.
Now Mr. Goepp says, and I wonder what he means, that with regard to this single illustration, his object
ETERNAL VIGILANCE. in addressing it was to show how the absence of a code, by leaving us without a standard for distinguish- Editor of the Albany Law Journal : ing important doctrines from unimportant, makes it
DEAR SIR.-One of your correspondents from Selma, necessary to hunt for a decision which is now worth
Ala., in your last JOURNAL, inquires if you or any of citing, but which with a code would rank only as an
your readers can give the name of the author of the unimportant gloss.
expression, Eternal vigilance is the price of LibNow I venture to ask: How does the absence of a
erty"? Civil Code leave us without a standard for distinguish
Victor Hugo is the author. The expression may be ing the doctrines of Criminal Procedure, which are
found in his Les Miserables. already codified ?
Very truly yours, Why if we had another code, would the decision re
CYRUS A. PEAKE ferred to rank as an unimportant gloss any more than
YONKERS, N. Y., April 12, 1884. it does now?
The story told by Mr. Goepp seems to me to illus. [The expression is a great deal older than Les trate, more than any thing else, the thought which Miserables.--ED. ALB. LAW JOURNAL.] forces itself upon every practical lawyer, that in spite of the enormous multiplication of decisions which everybody bewails continually, there is always a great dearth of cases directly in point upon the question which you happen to have on hand. Instead of studying the great principles of the law which can be found
NEW BOOKS AND NEW EDITIONS. tersely stated in any good text-book, lawyers in their desperation travel hundreds of iniles to find some nisi
Fox on WARRANTY IN FIRE INSURANCE. prius case, perhaps where another lawyer, no better than themselves but only earlier, has discussed the A Treatise on Warranty in Fire Insurance Contracts. By question.
Fontaine T. Fox, Jr., late vice-chancellor of the LouisConsidering that this case, if it could have been ville Chancery Court. Chicago; Callahan & Co., 188%. found, would be law only so far as its reason and good
Pp. 268. sense commended it, is it uot a little wild to say, be
This work appears to have been written with the cause this friend could not find the book in New
purpose of establishing as law the views of the author York, that “it is a matter of proof that there is in
upon the subject of warranty in the fire insurance conAmerica no place where a man can be informed of the
tract, rather than for the purpose of exhibiting what law he is expected to obey ?
the conclusions of writers and courts in reference Very respectfully yours,
thereto really are. He dissents from the views of both H. A. HARMAN.
Mr. May and Mr. Wood, who are well-known writers, BUFFALO, N. Y., April 7, 1884.
and whose works we believe to be standard authority
upon the law of insurance. Whether Mr. Fox has CODIFICATION.
in his treatise established the fact that his rule is the Editor of the Albany Law Journal :
better one we do not pretend to say; but his producThough familiar with Field's Civil Code, published tion is well written, and worthy of consideration by in 1865, by Weed, Parsons & Co., having found it iu
all who have an interest inuts subject-matters.