Albany Law Journal

ILLINOIS SUPREME COURT ABSTRACT.*

JUNE TERM, 1883.

DECREED

SPECIFIC PERFORMANCE-WHEN NOT BREACH OF CONTRACT TO ASSIGN PATENT-REMEDY AT

LAW.-(1) Courts of equity never decree the specific performance of a contract when the decree will be a vain and imperfect one. Tobey v. Bristol, 3 Story, 800. So a contract to assign an interest in letters patent for an invention will not be specifically enforced on bill filed only a short time before the patent expires. (2) A court of equity has no jurisdiction of a bill seeking solely to recover damages for a breach of a contract to perform services, and to assign an interest in letters patent, when there is no partnership account to be adjusted, and the contract is a personal one between the parties, not as partners, but as individuals. The remedy in such case is complete and adequate at law. For the breach of such covenants and agreements the remedy is an action of covenant where the instrument is under seal, and where it is not, assumpsit. Parsons on Part. 285, note a; Collyer on Part. (Perk. ed.) § 245. See also Doyle v. Bailey, 75 Ill. 418; Story's Eq. Jur., § 294. Werden v. Graham. Opiniou by Scholfield, J.

JUDICIAL SALE-SETTING ASIDE FOR FRAUD-REDEMPTION.-Land was sold on execution at a grossly inadequate price, and bid in by one who was the family physician of the debtor, and regarded as an intimate friend and adviser, the debtor being an aged illiterate person, almost wholly ignorant of his legal rights. The purchaser promised to give the debtor all the time he wanted to redeem, telling him he had fifteen months in which to redeem, and by artifice and misrepresentation lulled him into a sense of security until the time of redemption had passed, with the knowledge and participation of the assignee of the certificate of purchase, to whom a sheriff's deed was made. It was held that the debtor, under these circumstances, was entitled, on bill in equity, to redeem from the sale, and have the sheriff's deed set aside as a cloud on his title. Palmer v. Douglass. Opinion by Mulkey, J.

MUNICIPAL CORPORATION-LIABILITY FOR DEFECTIVE SIDEWALK-NOTICE.-A city had notice of a hole in a sidewalk near a railroad crossing, and neglected to repair the same within a reasonable time. A person in passing over such walk, exercising due care, stepped into the hole, whereby he was unavoidably thrown upon the railway track before an approaching train of cars, and in attempting to get up his clothes caught upon a spike or nail in the sidewalk, and he was struck by the train before he was able to extricate himself, and killed. Held, the city was liable in damages under the statute to the personal representatives of the deceased for causing his death. City of Chicago v. Schmidt. Opinion by Mulkey, J. (See 7 Am. Rep. 39, 43 n.; 39 id. 79, 98. -ED.)

COVER.

INSURANCE LAW.

LIFE-WAGER-FRAUDULENT ASSIGNEE CANNOT REWhere the assignee of a policy of life insurance took the assignment, knowing that the policy had been taken out for speculative purposes by persons having no insurable interest in the life of the assured, and brought suit to recover the money paid as consideration for the assignment, on the ground that it was fraudulent. Held, that he was a party to the fraud, and could not recover. It is settled law that one who sells a note, bond, or other chose in action impliedly warrants not only the title thereto, but the *To appear in 107 Illinois Reports.

validity thereof and the right to recover thereon. Flynn v. Allen, 7 P. F. Smith, 485; Lyons v. Divelbis, 10 Har. 185. * * But his own testimony shows that he was as deep in the fraud as any of the others. It appears that he was a recognized agent of this and other companies of like character, and was engaged in what he naively terms "the speculative life insurance business as a business." It also appears this was only one of several policies which he held on this same The plaintiff bought a worthless thing, knowing it to be worthless. He perhaps supposed that owing to his connection with the company the latter would assess the loss and pay. Be that as it may, he certainly knew that if he got his money some one would be cheated. In doing this the law will not aid him. Blattenberger v. Holman. Opinion by Paxson, J. (14 Weekly Notes, 283). [See 13 Am. Rep. 313; 26 id. 761.-ED.]

woman.

* *

[Decided May, 1883.]

LIFE-CONDITION AS TO LIABILITY-ASSESSMENTS.Where a clause of a policy issued by a mutual insurance company provided that the only action maintainable on the policy should be to compel the association to levy the assessments agreed upon, and that if a levy were ordered by the court the association should only be liable for the sum collected, held, that the provision was valid, and that the only mode of enforcing the policy in the first instance was by proceedings in chancery. Lueders' Ex'r v. Hartford L.& A. Ins. Co., 12 Fed. Rep. 465, distinguished. It is not held that there may not be cases where resort can be had to a common-law remedy under contracts like that in question, but it is held, as expressed on demurrer in this case, that the clause in the contract as to the mode of ascertaining the rights of the parties is obligatory (18 Fed. Rep. 14), with the possible exceptions suggested. Cir. Ct., E. D. Mo., Dec., 1883. Eggleston v. Centennial, etc. Opinion by Treat, J. (19 Fed. Rep. 201.)

FIRE-RENEWAL RUNS FROM EXPIRATION OF ORIGINAL POLICY.-A policy of insurance was taken out on a mill and machinery for "one year, from June 10, 1877, to June 10, 1878;" on June 13, 1878, application was made for renewal, and on June 19, 1878, a renewal was issued "for one year, from June 10, 1878, to June 10, 1879." On June 16, 1879, the mill and contents burned, and the insurance money was sought to be recovered under the claim that the renewal extended for a year from the date of its issue. Held, that the policy and renewal expired before the fire, and that neither was in force at the time of the fire. It is contended that the renewal should be construed as though it had read that it should be continued in force for the term of one year from the date thereof; and to enforce this claim it is insisted that the defendant was not bound until the renewal receipt was in fact issued. The difficulty with this contention is that it calls upon the court to make an agreement for the parties, instead of construing the agreement which they made for themselves. This is not the province of this court. Redmon v. Phoenix Ins. Co., 59 Wis. 302, 303; 8 N. W. Rep. 226. If it is true, as claimed, that the plaintiff had no contract of insurance binding upon the company during the first nine days of the year stipulated for, yet that would not authorize the court to extend the contract for a period of nine days after the expiration of the year. Bast v. Byrne, 51 Wis. 531; 8 N. W. Rep. 494. It is a circumstance entitled to weight in giving a construction if the wording of the contract is such as to admit of construction. In Isaacs v. Royal Ins. Co., L. R., 5 Exch. 296, the policy was for six months, from February 14, 1868, to August 14, 1868, but the precise time of neither day was named. Tak

ing the whole policy together, the court held that the first day was excluded and the last day included. Where the precise time of the commencement and end of the term is not definitely fixed there is some room for construction, but even in such case, and where the alleged agreement rested wholly in parol, the rule contended for has been rejected. Strohn v. Hartford Fire Ins. Co., 37 Wis. 625; Taylor v. Phoenix Ins. Co., 47 id. 365; 2 N. W. Rep. 559, and 3 id. 584. If in such a case the absence of any definite agreement as to the duration of the risk renders the contract incomplete, and hence ineffectual, then certainly the clause in a written agreement definitely fixing the precise duration of the risk should not be rendered nugatory by mere construction. The application for the insurance was a part of the contract, and properly admitted in evidence. Sup. Ct. Wis. Fuchs v. Germantown, etc. Opinion by Cassoday, J. (18 N. W. Rep. 846.)

very well done-concise, clear and practical. It is a good guide through the maze of the statutes on this subject, and one that is much needed.

MURFREE ON SHERIFFS.

A Treatise on the Law of Sheriffs and other Ministerial Officers. By William L. Murfree, Sr. St. Louis, Mo.: F. H. Thomas & Co., 1884. Pp. x, 758.

There has long seemed to be a place for a treatise on this topic, and this volume seems to fill it well. Mr. Murfree is a sound writer, and he has here done a very judicious and useful work. His plan and division are excellent, and his treatment is clear and discriminating. The text is divided into sections, with headlines, and the volume has a good index and tables of contents and cases cited. The printing is admirable.

RECENT ENGLISH DECISIONS.

WILL-GIFT FOR LIFE-SURVIVOR.-A testator gave his real and personal estates to his wife for life, and at her decease he gave the same to M. & W. if they were both living at the time of her decease, and in case of the death of either M. or W. before her decease, he gave the whole unto the survivor of them. Both M. and W. died in the life-time of the testator's wife. Held, that the gift to the survivor of M. and W. referred to a survivorship of the testator's wife, and that neither M. nor W. had acquired a vested interest. White v. Baker, 2 L. T Rep. (N. S.) 583, distinguished. Ch. Div., Apr. 12, 1884. Matter of Hill and Chapman. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 204.)

BILL OF EXCHANGE-POWER OF DIRECTORS-PERSONAL LIABILITY.-The defendants, being two directors and secretary of a company, having no power to accept bills, accepted a bill of exchange in their own names on behalf of the company, as a recognition of a debt of the company to the drawer. The defendants told the drawer not to negotiate the bill, but took no other steps to restrain its negotiation. The drawer, notwithstanding this prohibition, obtained discount of the bill from the plaintiffs, who sued as indorsees. Held, that the defendants were personally liable on the bill. They made a false representation by implication on the face of a negotiable instrument which the plaintiffs are entitled to have made good, and that the defendants by this false representation are bound as between themselves and an indorsee for value without notice. Beattie v. Lord Ebury, 7 Ch. App. 777; 3 Eng Rep. 625; 7 H. L. 102; 9 Eng. Rep. 64, is no authority upon this subject, for it was simply a question of the construction of a document. Q. B. Div., Dec., 1883. West London, etc., v. Kitson. Opinion by Day and Smith, JJ. (50 L. T. Rep. [N. S.] 208.) [See 14 Eng. Rep. 237; 30 id. 666.-ED.]

THE

COURT OF APPEALS DECISIONS.

THE following decisions were handed down Tuesday, June 10, 1884:

Judgment affirmed, and appeal from the order dismissed without costs to either party in this courtJames M. Smith, receiver, etc., respondent, v. Henry M. Platt, executor, etc., appellant.. -Order affirmed with costs-George Whitney et al., appellants, v. State, respondent.-Judgment affirmed with costs-Lucius fray et al., respondents.B. Warner, assignee, etc., appellant, v. Edward S. JafJudgment affirmed with costs--Nathan Pakalinsky, respondent, v. N. Y. C & H. R. R. Co., appellant.-Judgment affirmed with costs-Catharine E. Dodge, an infant, respondent, v. Frederick M. St. John, appellant.--Judgment affirmed with costs-People ex rel. Timothy McDonough, appellant, v. Board of Managers of Buffalo Asylum for the Insane, respondent.—Order of General Term reversing the judgment and granting a new trial reversed, and the judgment entered upon the verdict affirmed with costs of the appeal to the General Term and to this court-Martin L. Ehrgott, appellant and respondent, v. Mayor, etc., of New York, respondents and appellants.- Judgment affirmed with costs-John S. Harris v. David Van Wart, assignee, etc., appellant, and Aaron Healy, respondent.-Judgment reversed, new trial granted, costs to abide the event-Samuel P. Knapp, appellant, v. Ulrich Simon, impleaded, etc., respondents. Judgment affirmed with costs-Chas. E. Patterson, receiver, etc., appellant, v. Daniel Robinson et al., respondents.-Motion to amend remittitur denied without costs-Henry A. Valable v. New York, L. E. & W. Ry. and nine other cases.

NEW BOOKS AND NEW EDITIONS. SOUTHWORTH & JONES ON MANUFACTURING CORPORATIONS.

A Treatise on the New York Manufacturing Corporation Act of 1848 and Business Corporation Act of 1875, together with said acts, as amended, extended and modified to March, 1884, with Forms and By-Laws. By Edwin W. Southworth and Dwight A. Jones. New York: Baker, Voorhis & Co., 1884. Pp. xx, 308.

This subject is of very important local interest, and deserves a mauual like the present. The work seems

NOTES.

The American Law Register for May contains a leading article by Benjamiu F. Rex, on Liability of Telegraph Companies, and the following cases: Rintoul v. New York Cent.. etc., R. Co. (U. S. Cir.), on carrier's stipulation that he shall have benefit of shipper's insurance even against carrier's negligence, with note by Arthur Bidell; Rouede v. Mayor, etc. (U. S. Circ.), on rights of bona fide purchase of irregular municipal bonds, with note by Adelbert Hamilton; Hersheiser v. Florence (Ohio), on note of wife as surety for husband, with note by John F. Kelly; Goodnow v. Empire Lumber Co. (Minn.), on disaffirmance of minor's deed, with note by M. D. Ewell.

The Albany Law Journal.

ALBANY, JUNE 21, 1884.

CURRENT TOPICS.

THE Kentucky Law Reporter and Journal for June

contains articles on Codification, by Mr. Wm.

Reinecke and Mr. C. B. Seymour, both strongly urging general codification. Mr. Reinecke has heretofore made the ablest plea on this side of the subject that we have ever seen, and some extracts from which we gave in 28 Alb. Law Jour. 38. Mr. Reinecke now says, among other things: "Leaving out of view entirely the vast bulk of statutory law,

there are 5,500 volumes of reported decisions in the English language in which we are expected to seek the common law. They are increasing at the rate of 100 volumes, annually. By a legal fiction which under existing circumstances is almost a mockery, all the people are presumed to know the law. least, the duty is imposed upon them at their peril, to obey its commands, although they neither know them nor can know them. Must it not slowly perhaps, but surely destroy in the hearts of the people that confidence and hearty acquiescence upon which all law and all order rests, to have withheld from them the means of knowing their rights and their duties? No one will be bold enough to deny that it is their good right to know the law. But is that vast library of 5,500 volumes of decisions accessible to them? And if it were, could they find the law in them? Suppose then that they despair of the task (as they surely will if they try it) and that they call to their aid the best legal advice which money, liberally bestowed, can buy. Can the lawyers, without wading through all these reports, do more than guess at the law? We should be insincere if we failed to confess that the best legal marksmen occasionally make very wild shots. And even if we have guessed with such apparent safety that we felt secure in advising a client unhesitatingly to act upon our conclusions, when he has acted upon our advice and got into trouble and relies upon us to get him out and our case comes to trial, we may find to our dismay a lawmaker in the place of the judge upon the bench, who, creating a new rule, which until then had no existence, applies it to a transaction entered into upon the faith of the law as theretofore expounded. But he could not do it if the old rule was written down in a statute, instead of an opinion. * It is paradoxical to call that conduct which a rule of Our is not certain or which is unknown. Unless it is already written down in a statute or in the reports, the law does not exist at all, although we all know to our cost how it is sometimes evolved from the inner consciousness of the court, and how the non-existing law becomes a cudgel with which existing rights are beaten over the head. * * It is too late in the day to doubt sincerely the possibility of making a code of the body of the exVOL. 29-No. 25.

* *

isting law. With Mr. David Dudley Field's New

York Code before the world the best lexicon of legal definitions and of the outline of jurisprudence which was ever written the practicability of condensing the law of the land into clear, concise rules, making one volume of moderate size, is no longer an open question. It is just as futile now for the

army of legal Podsnaps to continue the jeers with

which they first greeted this undertaking, as it derided the folly of Christopher Columbus, after the would have been for the junta at Salamanca to have

prow of his caravel had touched the shore of San Salvador. The responsibility, the solemn duty of originating this greatest of all law forms rests with the legal profession. If the people knew the necessity as know it,

they would force from us this inestimable gift.

may But they do not, and we as well win ourselves the credit of having given it to them without coercion. For more than two centuries, to the

top-story in the first quadrangle of All Souls' College at Oxford a great sun-dial has been affixed, bearing upon it in large golden letters the words: Pereunt et imputantur, referring to the fleeting hours Time passes, marked by the large pointers below.

and it goes down, too, against our account."

Mr. Seymour said: "The one real objection to codification is that it will limit the legislative powers of the courts. By a singular fiction the courts, from time immemorial, have pretended that they simply declared the law, and did not make the law; yet we all know that this pretense is a mere fictionas much a fiction as the losing and finding in trover, and the lease, entry and ouster in ejectment. The effect of this fiction has been to obscure the boundaries of the legislative function of the courts. In times when Parliaments were seldom called together the bulk of legislative work had to be done by the courts; in these times when legislatures meet biennially, the legislative powers of the courts ought to be reduced to a minimum. Judicial legislation is always the making of a rule to apply to an act already done. Such has been its character from the time of the famous case of Zelophehad's daughters in the Pentateuch, XXXVI, Num. 6-12, unto this present. The boasted element of elasticity is simply uncertainty. Every settled doctrine of the law ought to be incorporated into a statute, so as to be put out of the reach of the courts as far as possible. Judicial discretion has been of service, and yet discretion has in it a strong element of do-asyou-please. This objection to codification seems to me its strongest recommendation. question of practicability resolves itself into a question as to the patience, attention, care and thought of the codifiers. In order that a code may be produced that is worth having, the Legislature and the codifiers must possess a large amount of that greatest of political virtues - self control; and this virtue is unfortunately a rare one." Mr. Seymour then particularly urges immediate codification of the criminal law and the law of coverture. In

The

respect to the latter he says: "It is safe to say that no lawyer in this State to-day knows what is the Kentucky law as to married women's separate estate. The amount of litigation produced by the uncertainty is not edifying. The recent tendency of decisions is to increase the uncertainty. Probably the result cannot be avoided by any care of the courts, if the labor of making laws on this subject is to be thrust upon the courts; and indeed it must not be forgotten that a precedent so far as it is authority at all is a law, differing from other laws indeed in being the work of courts and in being arrived at through a competition of conflicting analogies."

In the very excellent and thoughtful preface to Mr. Henry Reed's new treatise on the Statute of Frauds, the author speaks of the necessity of reducing precedents to some concise expression. Although he speaks of the construction of a statute, yet what he says is still more applicable to the unwritten law, for if what is written gives rise to so much construction, how much more that which is unwritten or existing only in scattered and conflicting authorities! Mr. Reed says of the growing necessity for carefully considered text-books: "If the 'lawless science of our law' is ever to be made single and homogeneous, if the 'myriad code of precedent' is to be reduced to a system, it must be done through some such preliminary process. The number of decisions, and the physical difficulty alone of using them, as we are in the habit of doing, must at last bring about the adoption of a plan radically different from that in use. The contradictory, subtle and yet practically important subject of the Statute of Frauds gives as good a fleld for experiment as perhaps could be found; and if the present work has been written as it should be, it will show how and where the courts when unfettered by authority, and under any circumstances the Legislature can formulate such rules, that the only real occupation for a judicial tribunal will be the ascertaining of facts in the particular controversy. The writer has no hesitation in saying that if skill and care are employed a statute can be drawn which can set at rest three-fourths of the questions of law connected with the Statute of Frauds; and as the trials of questions of fact will not be reported to be a later source of perplexity, the mass of precedents may be kept within a reasonable compass." This is an excellent answer to those who oppose general codification on the ground that statutes give rise to so much discussion. Our late Legislature enacted a law that married women may contract as if single. This is so far a codification.

We do not know that there can be any objection to it. And yet if the arguments against codification are sound, we should be forced to believe that this act is only to be tolerated because it is in the statute book and not in a code.

The lawyers who are jealous of women in court will find some comfort in the case of Mrs. Weldon,

of whose appearance in court we gave some account, ante, 221. It seems that she has been "wearying' the judges with the scriptural result. The Law Times says: "The evils arising from suitors appearing in the courts in person have been illustrated by Mrs. Weldon, who will very soon become an intolerable nuisance and a very costly intruder upon the time of the judges. She has found out that an attractive woman, appearing as her own advocate, will be allowed to say and do many things which no one else could do or say with impunity. Consequently

she is proceeding to abuse the license allowed her, and if a judge sums up in a way she does not like she condemns him as a nasty man; and if another judge wishes to keep her to the point she denounces him as prejudiced, and threatens to go to the Court of Appeal. She is also, we regret to say, leading judges into wrong decisions. Justices Cave and Smith restored some parts of a statement of claim which had been struck out by a master and a judge, which were as objectionable, from a pleading point of view, as they could possibly be. They set up the motives for a trespass; suggesting aggravation of damages. This, we suppose, is on the same lines as allowing an allegation of seduction in a claim for breach of promise of marriage (Millington v. Loring), a decision we always considered erroneous."

The recent death of Noah Haynes Swayne, a jus tice of the United States Supreme Court from 1862 to 1881, at the age of eighty-four years, brings into respectful remembrance an able and faithful public servant, who participated in the decisions of that tribunal during the most important period of its history, and has left the impress of a calm and clear judgment and full legal learning upon the Federal jurisprudence. We call attention to a beautiful tribute to his memory, in another column.

The resignation of Judge Erskine, of Georgia, from the Federal bench is the subject of regret The bar among the people of his jurisdiction. of Atlanta have caused his portrait to be painted and placed in the Federal court room, and on its presentation recorded their testimony that hewas "a judge who, by a fair interpretation and just enforcement of the laws of the United States, did much to make hearts once estranged feel a new love for the National government; a judge who, in his dealings and intercourse with the bar, was always kind, accommodating and considerate of their feelings and wishes; a judge who, in times of temptation, when the honesty of others was questioned and charges were rife against them, passed among his fellow men without reproach, unchallenged, for what he was, an honest man, a good citizen, respected and beloved, and a judge able, intelligent, learned, laborious, upright and impartial." There is probably no class of public servants in this country who do more work for such meagre pay, and are generally so little thanked, as the judges of the Federal Circuit and District Courts. It is quite refreshing to find one appreciated.

NOTES OF CASES.

N Atwater v. Mayor, etc., New Jersey Chancery Court, March 19, 1884, 7 N. J. L. Jour. 176, it was held that a public market held in the street may constitute a nuisance to an adjoining land owner, and may be enjoined, although authorized by ordinance. The fact of the nuisance was admitted in argument, and the chancellor granted a preliminary injunction. The Journal accompanies the case with a note stating that this is the first case directly involving this question in that State, and citing Knox v. Mayor, 55 Barb. 404; Wartman v. Philadelphia, 33 Penn. St. 202; Com. v. Wentworth, Bright, 318; Rex v. Russel, 6 East, 427; Wilkes v. Hungerford Market; Sattermole v. Mayor, etc., 15 Fla. 206. In Henkel v. City of Detroit, 49 Mich. 249; S. C., 43 Am. Rep. 464, it was held that a city having established a public market in a portion of a public street duly condemned for that purpose, no action can be maintained against the city for injury to his adjoining property by the incidental obstruction of the street by the collecting of wagons in the neighborhood, and the selling of produce therefrom, where the same is under police regulation.

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