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Entered, according to act of Congress, in the year eighteen hundred and seventy-seven, BY WEED, PARSONS AND COMPANY,

In the office of the Librarian of Congress, at Washington.

THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

THE

ALBANY, JANUARY 6, 1877.

CURRENT TOPICS.

THE court to determine upon what are known as Alabama Claims closed its business on the 29th ult., leaving undistributed over one-half the money received under the award of the Geneva tribunal. This circumstance gives great dissatisfaction to many, especially to those who are interested in the insurance companies that took war risks, and were compelled to pay for vessels lost. It seems that when the award was estimated at Geneva, a list was made covering all the losses of private citizens that were shown to have been caused by the privateer Alabama, without any regard to whether there was insurance upon the property lost. The court passing upon the individual claims, have merely paid those of persons who were not re-imbursed by the insurance companies, but the claims of the insurance companies themselves for losses paid were not allowed, the ground being that the transactions of the Alabama and other vessels of the same character rendered the marine insurance business profitable rather than otherwise. The question is one of considerable difficulty. On the one hand, it would appear that the losses which really fell upon the insurance companies had been presented to the English government, allowed by it, and paid in trust for the losers to the United States, and that these companies were, in equity at least, entitled to receive the benefit of that act.

But, on the other hand, it is said that the companies cannot justly claim a re-imbursement for the whole amount paid by them; the amount of premium received for the risk should be deducted and given to the owner of the property insured. Then there might come the claims of those who were compelled to pay war risks by reason of the presence at sea of the Alabama, and there is a seeming justice in the assertion that these perVOL. 15.-- No. 1.

sons stand in as good a situation to demand compensation as the companies do, if not in a better one, though it might be a matter of difficulty to determine, in every instance, who justly belonged to the class mentioned. If all who would assert themselves to belong thereto were compensated, we think there would be but little left for the insurance interest to dispute about. The fact is that the money was awarded by the Geneva arbiters to pay losses caused by the Alabama, and if an individual did not, in fact, directly lose by her operations, he is not entitled to any thing from the award, either equitably or otherwise. If the doctrine of subrogation should be applied here, the result would be in favor of the claims of the insurance companies. According to the opinion of a former distinguished minister to

England, as the matter now stands, the Geneva arbiters appear responsible for "cheating the British government out of a large sum, which the American government declares was not properly claimed, and yet which it declines to return to its rightful owners."

The fact is that the English government were adjudged to be liable for the losses caused by the Alabama; these losses amounted to a certain sum which has been paid. Out of that sum private owners who have had property destroyed by the Alabama are entitled to compensation, but a portion of these have been repaid their losses already. The companies which repaid them, although perhaps as a whole they really did not lose any thing by the existence of privateers preying upon American commerce, or may have really made profits from war premiums, seem to stand in the shoes of those whose property was captured by the Alabama, at least to the extent of the amount of losses paid by them in excess of premiums received. The equitable claims of the third class of losers must be excluded by reason of the difficulty of establishing definitely what portion of their losses was due to the Alabama, as distinguished from losses due to other privateers. At least the losses of this class do not appear to have been considered by the Geneva tribunal.

We have little faith in any attempts to make men moral or sober by law, but we must confess that the experiment of Mr. Bergh in the direction of making them humane has met with a wonderful degree of success. The society organized by him show, as the result of their work for the year just past, 850 prosecutions in court, 1,794 disabled horses turned out of harness in the streets, and more than 2,000 acts of cruelty prevented by interference by its agents. This, in addition to an unlimited number of other acts done for the comfort and well-being of brutes, is a remarkable record of what is being accomplished under an experiment in legislation, which, but a few years ago, was deemed visionary, not to say fanatical.

un

Mr. Francis C. Barlow is a waggish fellow - in fact a very Falstaff. Last week he sent to Mr. Elihu Root, the opposing counsel in a cause, a request to return his brief in the case, saying, "I make now a further and formal request, for the purpose of basing upon it, if still uncomplied with, an action of replevin, or if the argument has been destroyed, an action of trover coupled with the arrest of the guilty parties." To which Mr. Root returned the following laconic and orthodox reply: "Don't be a damned fool." Not heeding the request, Barlow responded at considerable length, saying, among other things: "I request that you will inform me on or before 12 M. of Saturday next, whether you will meet me at a point to be designated by yourself, in Canada, during the coming week, that we may settle this matter of difference in a dignitied way. If you answer in the affirmative, I will request a friend to wait upon you, whom you can refer to some gentleman who will act for you. Should you decline to give me this satisfaction, I can only ask you to be prepared to defend yourself (of course I mean by the use of fire-arms) whenever and wherever I may meet you, always excepting, of course, the courts as a place of encounter. Upon recognition I shall feel at liberty to fire upon you, as the only method of adjustment left me of this difficulty." A warrant for Mr. Barlow was sought, whereupon Mr. Justice Davis interposed his "friendly offices," and Barlow solemnly asseverated that it was all a "joke."

The message of the governor of this State, like those of his predecessors, makes many suggestions as to legislation, some of which will be acted upon and some of which will not. Among those that ought to receive attention is the one in relation to savings banks, the disasters occurring among such institutions during the past year or two indicating that the existing laws are not sufficient to secure depositors against loss from maladministration by

managers. The reference to the state of the law in regard to insecurity of places of public resort is timely, and the recent theater disaster in Brooklyn will probably give sufficient force to it to secure appropriate legislation. The remarks upon municipal reform will meet the approval of those who have to pay taxes. In fact, any thing that can be done to check the extravagant expenditure of municipalities will be welcome, and we believe that the depression in values which is now existing, will render it impossible to continue much longer a system of government which necessarily leads to such extravagances. Some of the suggestions concerning taxation will meet with approval, and some with adverse criticism. Of course, the subject of exempting churches from taxation is one upon which all will not think alike; neither will those who do not hold stock in banks probably acquiesce in any measure looking to the relief of such institutions from taxaation. Yet, it has been well said that taxation, no "matter how imposed, sooner or later distributes itself so that all feel its burden. It is not so much the methods of taxation that are apt to be inequitable, as the changes that are made in the methods. What the governor says about legislation in appropriation bills is proper, but we suppose if occasion comes hereafter for the insertion of a provision of general legislation in such a bill it will be done all the same.

Among the judges who have long occupied the Supreme Bench of our State, to the satisfaction of the public and of the bar, we know of no one who stands higher than the Hon. E. Darwin Smith, of the Seventh Judicial District. Chosen to the judicial office twenty-one years ago, he has continued therein uninterruptedly until the beginning of the present year. During the whole time he has actively discharged the duties incumbent upon his position, and he now retires under the constitutional provision, regretted by all who have occasion to transact business with the court in which he sat. During the time he has occupied the judicial position, he has written many opinions of value, which appear in our various State reports. We trust his retirement from the bench will not terminate his relations with the profession, but that we may in other ways retain the benefit of his learning and experiHon. J. C. Smith has been appointed to fill the position at the General Term of the Fourth Department, heretofore occupied by the retiring judge.

ence.

The theater accident in Brooklyn led the public to consider what the law had done and could do toward making human life safe in buildings where large crowds are wont to assemble, and the recent railway accident at Ashtabula occasions the same inquiry as to public conveyances for travel. In each instance the inquiry resolves itself into two ques

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tions, namely: Is it possible, in the nature of things, to obtain absolute safety to human life in the construction of public buildings and in the construction and operation of railways, or what, to a reasonably cautious person using them, will amount to absolute safety? And, second, providing the first question is answered in the affirmative, is it possible, by law, to compel the adoption of such measures as will secure such safety? We imagine the answer to the first question will be yes, and to the second question, so far as theaters and public buildings are concerned, in the affirmative also. The public conveyance presents a different question. It may be within the reach of human ingenuity and care to prevent every accident to passengers; but the expense of such ingenuity and care may be so great as to preclude their adoption. It is necessary for people to travel, and they are justifled in being willing to undergo some risk to life and limb to do so. It is not necessary for them to assemble in large bodies in dangerous public buildings, and they are not justified in risking life and limb to do so. Consequently the law is entitled to require that places of public assemblage be made safe at all hazards, and without regard to the expense necessary. But in regard to railways and other means of travel, it can only say, "You must manage these with the utmost safeguards that are possible in connection with the maintenance of traffic." If the theater performance cannot be conducted without danger to human life, it is of little moment that it is stopped. If the conduct of railways involves some danger to life, that danger must be encountered, although the minimum of risk compatible with the continuance of railway traffic on the given line should be exacted.

IN

NOTES OF CASES.

N the case of Kane v. Reserve Mutual Life Ins. Co., decided by the Supreme Court of Pennsylvania (8 Weekly Notes of Cases, 201), an adult son was held to have an insurable interest in the life of his father. The law of Pennsylvania, as does that of most other States, renders an adult son liable for the support of his father, and the court say that such legal liability is sufficient to support the contract of insurance. It has been held, however, in England that, when the life of a pauper dependent on his son for support was insured, a son had not an interest in the father's life sufficient to uphold the contract, under the English statute. Shilling v. Accidental Death Co., 27 L. J. Exch. 16, 19.

"He will not be allowed

to enter into a speculation upon the father's life and limbs." The ground upon which the English decision rests, is that it is a gambling venture, and it is said that the true rule then is that where a policy is sought to be supported by an interest derived from relationship, the person obtaining it must him

self have a legal claim for support upon the person whose life is insured. Thus it has been there held

that, while a wife has an insurable interest in the life of her husband, the husband has not one in hers. Bunyon on Ins. 14. Though this has been denied. Hebden v. West, 3 B. & S. 579. See, as to the question of insurable interest, Lord v. Dall, 12 Mass. 115, where a sister was held to have an insurable interest in the life of a brother who supported her; and even a married sister, not dependent upon her brother, has been said to have such interest, he being unmarried and without issue or parent living. France v. Etna L. Ins. Co., 2 Ins. L. Jour. 657; Loomers v. Eagle L. & H. Ins. Co., 6 Gray, 396, where a father is held to have such an interest in the life of his minor son. See, also, Mitchell v. Ins. Co., 45 Me. 104; Ins. Co. v. Johnson, 4 Zab. 576; Bevin v. Ins. Co., 23 Conn. 251; Ins. Co. v. Robertshaw, 2 Cas. 190; Cunningham v. Smith, 20 Sm. 456.

In the case of McLennan v. Gerrie's Trustee et al., recently decided by the Sheriff Court of Aberdeen, the facts were these. Gerrie bought goods of three different London merchants, from two on credit, and from one for cash, the goods in the latter case, however, to be delivered before payment was remitted. The goods were to be sent to Aberdeen, Scotland, by steamer, and were so sent. They arrived at Aberdeen at various times from the 28th of June until the 5th of July. It was the custom of Gerrie to convey goods consigned to him, from time to time, by the line of steamers over which the goods in question were sent, by his own vehicle to his place of business, and the steamer company were accustomed to keep his goods until he did so. On the 15th of July, while the goods in question were still on the premises of the steamship company, or on premises adjoining, he went into bankruptcy. On the same day he wrote as follows to the vendors: "Having in the mean time suspended payment, I have refused goods of invoice dated June 28th, and given instructions to steamboat company to store in the weigh-house." He gave the instructions mentioned in respect to all the goods on that date, which were complied with. The court held that as at the date when the letters were dispatched to the vendors, the goods never had been in the possession of the bankrupt, the contract of sale was thereby effectually rescinded, and the goods belonged to the vendors and not to Gerrie's assignee. The court say that the goods were on the 15th in transitu, and arrestable by the vendors. See Bolton v. Lancashire & Yorkshire Railway, L. R., 1 C. P. 431; Schotsman v. Lancashire Railway Co., L. R., 2 Ch. 332; Borndston v. Strang, L. R., 4 Eq. 481; Biggs v. Barry 2 Curtis C. C. 259; Atkins v. Colby, 20 N. H. 154; Stubbs v. Lund, 7 Mass. 457.

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