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REDMAN'S LAW OF RAILWAY COMPANIES.
NOTES. A Treatise on the Law affecting Railway Companies as Car
riers of Goods and Live Stock. By Joseph Haworth kedman, of the Middle Temple, Esquire, Barrister-at-Law: WF forgot last week, in connection with our corro
spondent's letter about “Contracts to SatisfacSecond edition. London: Reeves & Turner, 1880. Pp. tion,” ante, 20, to explain ourselves. What puzzled us XX, 201.
was not the position of the appellate court, as reported A neat and concise treatise for quick reference, in 45 Conn., but to see how the trial court, in the face especially adapted to the English market. It contains of the decision of the appellate court, in 44 Conn., the English statutes concerning railway traffic, includ- could have rendered the judgment they gave on the ing that of 1873, and since the former edition two new trial; for it is scarcely conceivable that the facts chapters have been added on Passengers' Luggage and could meantime have wheeled about. Perhaps “T. C. the Liability of Railway Companies as Warehousemen..J." can explain this It will be useful to our lawyers as affording a succinct and late view of English statutes and decisions from We regret to learn that Mr. Grattan, the old and an English standpoint.
well-known reporter of the Virginia Court of Appeals, is in feeble health. He has completed his labors to Feb. 19, 1880, and announces that these will be his last.
His familiar name and faithful service will be missed. CORRESPONDENCE.
Among other valuable matter, the Virginia Law
Journal for July contains a leading article on ImpeachCAN AN ASSIGNEE FOR CREDITORS SET ASIDE HIS AS- | ment of Witnesses. -Judge W. R. Staples, of the SIGNOR'S FRAUDULENT TRANSFER?
Virginia Court of Appeals, writes us: “I desire to
congratulate you on the ability with which the JOURTo the Editor of the Albany Law Journal:
NAL is conducted, and the reputation it has established Does chap. 314, Laws 1858, give to a voluntary as
throughout the country In this State it stands designee the right to attack for fraud as against credit- servedly high both with the bench and the bar.” ors a previous transfer by the assignor? This question is an important one since the repeal of the Bankrupt The most extensive and important enterprise in legal Act, and yet I cannot find that it has ever been de- reporting in this country is that of the West Publishcided by our courts.
ing Company, at St. Paul, Minn. We have received The statute is referred to in Fort Stanuix Bank v. the 1st volume of the new series of their North-western Leggett, 51 N. Y. 552, 554, but this question receives no Reporter, containing 1,089 pages and 337 cases in full, discussion. Miller v. Halsey, 4 Abb. (N. S.) 28, does being all the decisions of the Supremo Courts of Minnot touch this point. The dictum, at page 33, relates nesota, Wisconsin, Iowa, Michigan, Nebraska and only to the fraud of the assignor in retaining and con- | Dakota, from April 26, 1879, to August 30, 1879. These cealing assets from the assignee. I am aware that are issued in weekly parts, and give the opinions, as Burrill in his work on Assignments, and Bishop in his soon as filed, at $5 a year. The price of this volume book on Insolvent Debtors, state that this statute ap- is $2.50. In addition, this company issue supplements plies to cases of voluntary assignments, but they cite of the samo character, giving tho full opinions of the no authorities supporting it.
Supreme Courts of Ohio, Illinois, Missouri, Indiana, Previous to this statute it was well settled that a Kentucky and Kansas, at $3 a year each, separately, voluntary assignee could not set aside such transfers, or with the Reporter, as follows: Reporter and one nor receive the fruits of them after they were set supplement, $8; Reporter and two supplements, $11; aside by creditors. Brounell v. Curtis, 10 Pai. 211, 219; | Reporter and three supplements, $14; Reporter and six Browning v. Hart, 6 Barb. 91. The reason given is supplements, $15; including indexes, tables of cases that the assignee took only such rights as the assignor and postage. They also issue, in like manner, the had, and of course the assiguor could not impeach Federal Reporter, giving the opinions in full of all the such transfers.
Federal Circuit and District Courts througbout the The Legislature, undoubtedly, had the power to give United States, at $10 a year. The editing and publishthis right to voluntary assignees, however unwise it ing are well done, and tho enterprise deserves the may be to exercise that power. But it seems to me success which we are informed it meets. clear that the plain intent of the act referred to is to give this right to those assignees only that are ap- Several days ago a white man was arraigned before a pointed by the court under the insolvent act. 2 R. S., colored justice, down in the country, on charges of p. 21, $ 27. The second section omits the word “as- killing a man and stealing a mule. “Wa'al," said the signee," and speaks only of “executors, administra- justice, “de facts in dis case shall be weighed wid tors, receivers or other trustees” of a “deceased person, kerefulness, an’if I hangs yer, 'taint no fault ob mine." or insolvent corporation, association, partnership or “Judge, you have no jurisdiction only to examine individual.” A voluntary assignee is nowhere called
“Dat sorter work ’longs to the regular justice, a “trustee” of an insolvent. On the other hand it but yer see I have been put on as a special. A special was held in Ferriss v. Am. Ins. Co., 22 Wend. 586, that hez de right to make a mouf at Supremo Court if he such an assignee is not a “trustee of a debtor” within chuses ter.” “Do the best for mo you can, judge.” the meaning of the statute regulating security for “Dat's what I'se gwine to do. I'se got two kinds of costs; but that an assignee appointed by the court un- law in dis court, the Arkansaw an' de Texas law. I der the insolvent act is such a trustee.
generally gives a man de right to choose fur hisself. If this statute applies to voluntary assignees, what a Now, what law does yer want, de Texas or de Arkantemptation it holds out to debtors to make fraudulent saw?” “I eve I'll take the Arkansas." transfers of property, then make a general assignment den, I'll dismiss you fer stealing de mule "Thank to an assignee of their own choosing who will lend | you, judge.” “And hang you fer killing de man—" himself to the trick of bringing suits, ostensibly to set "I believe, judge, that I'll take the Texas.” “Well, them aside, but really to procure a decision upholding den, I'll dismiss you for killing de man “You them, and which shall be conclusive on the creditors have a good heart, judge." An' hang yer for steal(4 Barb. 232), except they can prove the conspiracy being de mule. I'll jus take de 'cashion here to remark tween the assignor and assignee.
B. dat de only difference 'tween the two laws is der way UTICA, July 1, 1880.
yer state de case."'-- Little Rock Gazette.
The Albany Law Journal.
freedom from such connections, and says that if we are wise (though, as an American, he would be
proud to see us all under the Stars and Stripes), we ALBANY, JULY 24, 1880.
will remain unannexed as long as the corruption of public morality and the betrayal of high office to
ambition and gain continues as he has represented CURRENT TOPICS.
it and as Mr. Frost's case proves it to be.” The PHE London Law Journal says of the recent de
American gentleman who could seriously utter such THE cision in the Tichborne claimant's case: "It
nonsense as this did well in carrying his wares to a can hardly be said that Pegina v. Castro decides foreign market. Let not the hysterical editor of much, except, as Lord Justice James compendiously
the high latitudes be alarmed. We have foolish citiexpressed it, that there is nothing in the objec
zens enough without wishing to annex him. On the tions taken to the indictment. We think that there subject of annexation, Canada is always as nervous was something in' at least one of the points taken;
as the elderly lady at the siege in Don Juan, who and at all events, the argument is of interest to law- | inquired, “when will the ravishing begin ? » Let
the Gazetteer hide his fevered and timorous brow in yers, as going over very obscure ground seldom traversed by so high an authority.” “We confess
the snows of Labrador, and shout his compatriot's that the judgment of the Court of Appeal on this
grievances to the inhabitants of the north pole, who point is disappointing in its tone. The reductio ad
may possibly think him right. An esteemed correobsurdum seems to us to have been out of place." spondent, who sends us this amusing extract, a law"It is not unreasonable that there should be a dis- yer of experience and high standing in Canada,
writes us: "You will be better able to deal with it tinct trial for every imposition of a distinct seven years.” “It is fairly open to argument that the
than I, whose only means of judging are the expractice is in some cases hardly fair to the prisoner.” ceptionally learned and able opinions of the New The Solicitors' Journal says: “It does not seem to
York bench which appear in your columns." We us altogether absurd to contend that under these
assure our friend it is no more possible to deal seriwords there can be only one sentence on
ously with such midsummer madness as this, than viction, and that there can only be one conviction
with the ravings of a lunatic who should complain for this purpose at one and the same trial.” The
that the man in the moon was making faces at him. Law Times does not commit itself to an opinion, but says, “the lords justices were unusually severe
The Honorable George McCormick, attorney-genupon the principle upon which that case proceeded ” eral of Texas, has transmitted to the governor an
- meaning the Troeed case. In the next breath it interesting report concerning the enforcement of the says, “it does not appear, indeed, that the ratio criminal law in that State. We extract the followdecidendi of that decision was clearly stated." ing comparative statements of indictments and con
victions for four years: The fool-killer should go at once to the office of
Indictments: 1875. 1877. 1878. 1879. the Montreal Gazette. In the issue of that precious
344 newspaper of July 13th is a long article, entitled “ Justice in the State of New York." The text of
2,260 2,371 2,081 Arson.
30 26 24 19 the article is the pretense of one Frost, a native of
100 82 90 England and a naturalized citizen of the United
779 44 Rape..
53 53 34 States, attorney and counsellor of this State and
51 49 47 resident in New York city, that he has been unlaw
99 85 258 fully imprisoned on civil process for four years, and
155 176 Burglary.
175 154 183 that the judges have connived at the injustice, and persistently denied him the writ of habeas corpus,
4,515 3,130 3,548 2,942 and issued stays and prohibitions and injunctions most wickedly. Frost does not tell why he is imprisoned, but he ought to know that every judge
Convictions: 1875. 1877. 1878. 1879. refusing him the writ of habeas corpus, when legally Murder..
115 applied for, is liable to forfeit $1,000 to him for Theft.
956 471 558 651 every refusal. We advise Frost to set this machinery Arson ..
5 in motion, and if he is unlawfully imprisoned, we Perjury..
1 10 will furnish him a lawyer to vindicate his rights. Rape...
9 16 But the Gazette continues: “An American gentle- Robbery.
9 man of position, probity and intelligence, says that Forgery.
9 17 19 in the State of New York almost every judge is a Burglary.
70 58 61 82 huckster who sells his decisions for money, for favor or for political influence, that few decisions are un
Total..... 1,177 641 799 907 purchased and that were one-tenth of the rascality practiced by the judiciary told, it would not be “It will thus be seen,” says the attorney-general, credited. In conclusion he congratulates us on our “that for the eight species of crime named there
VOL. 22. – No. 4.
were, in 1875, 4,515 indictments presented, and 1,177 The heathen Chinee has scored another victory. convictions had, being about one conviction to every In the cases of Ah Chong, Wong Hoy, Ah You, Foo four indictments. In 1877 there were 3,130 indict- Iloy, Foo Hee, and Ah Mee, in the Federal circuit ments and 641 convictions, being about one convic- for the district of California, 5 Pac. C. L. J. 451, it tion to every five indictments. In 1878 there were was held that a statute of California prohibiting all 3,548 indictments and 799 convictions, the ratio of alievs, incapable of becoming electors of the State, convictions to indictments being about the same as from fishing in the waters of the State, is unconstiduring the preceding year. For the year just past tutional and in conflict with the treaty with China. there were only 2,942 indictments for these crimes, The court distinguish McCready v. Virginia, 94 U. while there were 907 convictions, being nearly one
S. 341. They say:
“ Citizens of other States havconviction for every three indictments. This state-ing no property right which entitles them to fish ment shows not only a decrease as to the number of against the will of the State, a fortiori, the alien, crimes committed, but also a corresponding increase from whatever country he may come, has none whatin the number of convictions had, and argues well
ever in the waters or the fisheries of the State. for those charged with the execution of the law, Like other privileges he enjoys as an alien by perbesides showing that crime is greatly on the decrease mission of the State, he can only enjoy so much as in our State.” It is noteworthy, however, that the the State vouchsafes to yield to him as a special decrease is mainly in the crime of theft. Murder privilege. To him it is not a property right, but in has not decreased, but comparing the last two years the strictest sense, a privilege or favor. To exclude with the first two, it has greatly increased, showing the Chinaman from fishing in the waters of the 893 as against 729. Is it possible that there is some
State, therefore, while the Germans, Italians, Engfoundation for the colored judge's remark, which lishmen, and Irishmen, who otherwise stand upon we published last week, that in Texas they hang a the same footing, are permitted to fish ad libitum, man for stealing a mule, and only imprison him for without price, charge, let, or hindrance, is to premurder ? The convictions for murder of late, how- vent him from enjoying the same privileges as are ever, have more than kept pace with the increase of 'enjoyed by the citizens or subjects of the most the crime, and there can be no doubt that the good favored nation;' and to punish him criminally for men of the State are seriously trying to render life fishing in the waters of the State, while all aliens of and property safe there.
the Caucasian race are permitted to fish freely in the
same waters with impunity and without restraint, It will interest the members of the profession in
and exempt from all punishments, is to exclude him
from enjoying the same immunities and exemptions this State to know that, at a recent meeting of the
as are enjoyed by the citizens or subjects of the trustees of the State Library, a subject-index cata
most favored nation;' and such discriminations are logue of the law library was directed to be made.
in violation of articles V and VI of the treaty with The matter was brought to the attention of the
China, cited in full in Parrott's case.
The same trustees by a communication from Mr. S. B. Griswold, the law librarian, in which he states that privileges which are granted to other aliens, by
treaty or otherwise, are secured to the Chinaman by “there are at the present time upon the shelves of
the stipulations of the treaty. Conceding that the the law library 13,500 volumes, and 2,500 trials and
State may exclude all aliens from fishing in its law pamphlets, which are not embraced in any catalogue available for use by readers in the library.” waters, yet if it permits one class to enjoy the priv
ilege, it must permit all others to enjoy, upon like Mr. Griswold proposes that the new catalogue “shall
terms, the same privileges whose governments have contain not only the treatises and reports, but also civil and criminal trials, essays, opinions, arguments ileges granted to the most favored nation.”
treaties securing to them the enjoyment of all privand leading articles in the standard law periodicals, properly classified and arranged under their respect ive subjects.” It is also his intention to include in
NOTES OF CASES. the catalogue an index to the more important official reports on leading topics of legislation that are con- THE Vienna “ Juristische Blaetter ” reports an imtained in the 14,000 volumes of State papers which portant decision on insurance law. A. had obform a part of the law library collection, thus ena- tained an insurance on the roofs of certain buildbling members of the Legislature to consult these ings, clothes, bedding, corn and household goods. volumes which now stand upon the shelves unused. Each item was insured for a certain amount, sepaIt is estimated that it will take the librarian two rately, but only one policy was issued. A fire ocyears to prepare the proposed catalogue. In view curred, and A. was afterward convicted of fraud of the increased labors of the librarian, Mr. H. E. attempted against the company, by concealing artiGriswold has been appointed an assistant in the law cles which he had saved, and claiming insurance library. The preparation of this catalogue could therefor, and by stating that other articles were not have been committed to more competent hands, destroyed, which he never possessed. One of the and the scheme proposed by Mr. Griswold is unique conditions of the policy (§ 26 ) was, that the same in usefulness. There is a vast amount of interest- should be wholly avoided, and the holder should ing and important matter now practically inaccessi- lose all claim for compensation, if he should be ble in legislative reports and law periodicals. found guilty of fraud in regard to the object in
sured, or if he should conceal articles saved, and mental condition of the recipient, to ascertain if his ask pay for them, or if he should rate his loss too mind was in a proper state to reason or act of his high, and state that more was lost than what was in own volition; that the sacraments could only be adexistence at the time of the accident. On these ministered after such a preliminary examination; grounds the company refused to pay A. any thing, and that therefore, as a priest, he was daily required while he claimed that he should be compensated at to exercise and pass his judgment on the mental least for the loss of the roofs, in regard to which he condition of persons.' It has been shown by the had not been guilty of any of the acts mentioned authorities already referred to that physicians in in the policy, and the injury to which had been general practice who have never made a specialty of estimated by the company's agents at 254f., 7kr. the subject of insanity, as well as physicians who So he brought his action for that sum, and the com- are not engaged in the practice of their profession, pany defended on the ground of fraud under sec- and also nurses, are deemed experts on this subject; tion 26 of the policy. The Austrian Imperial Su- and on what principle or for what reason could the preme Court held the company liable, on the ground witness Serda be held not to be an expert ? It was that the insurance of the various articles at separate a part of his collegiate education, and it was amounts, though all in one policy, was to be con- specially a matter of daily practice with him for ten sidered like a separate insurance on each article, by years to familiarize himself with the mental condiseparate policies, and that the conditions applied tion of persons upon whom he was called on to atonly to those articles in regard to which there had tend in his character as a priest; and it does seem been fraud. Contra: Moore v. Virginia F. & M. to us that from both education and experience, he Ins. Co., 28 Gratt. 508; S. C., 26 Am. Rep. 373. was peculiarly qualified to express an opinion as an The question whether a breach of warranty as to expert on the question of mental disease.” one of several subjects separately insured in the same policy avoids the policy altogether, is answered
In Borough of Norristown v. Fitzpatrick, 8 W. N. in the affirmative in Schumitsch v. American Ins, Co., Wisconsin Supreme Court, Jan., 1880, and in the borough, by the firing of a cannon by a crowd of
C. 459, A. was injured while crossing a street in a negative in Merrill v. Agricultural Ins. Co., 73 N. Y.
The jury found in a special verdict that the 452; s. C., 29 Am. Rep. 184. See, also, note to firing had been going on for some hours, without the Wisconsin case, 9 Ins. L. J. 56. This case also illustrates how speedily the Austrians obtain justice. ities, and that a policeman standing by at the time
any special authorization from the borough authorA. commenced his action in the Circuit Court, May did not interfere to stop it. The borough was 31, 1879; it was there decided December 23, 1879; specially directed by act of Assembly to appoint on appeal the Supreme Court of Bohemia decided
policemen to preserve the public peace, remove it Jan. 27, 1880, and ultimately the Imperial Su
nuisances, etc. In an action by A. to recover dampreme Court, April 22, 1880.
ages for said injuries, held, that the borough was
not liable. After showing that the borough was not The case of Toomes' Estate, California Supreme liable for the negligence of the police officers, the Court, April 7, 1880, 10 Rep. 10, should be added court continue: “Then upon what ground can the to our chapter on the powers of the clergy. It is defendant be held liable for the damages suffered by there held that a Roman Catholic priest, regularly the plaintiff ? Certainly not upon any principle of educated and officiating as such, and constantly re- common law, for we all know, that for damages required by the duties of his office to pass his judg- sulting from the conduct of a mob or unlawful ment upon the mental condition of invalids and assembly, neither city nor county, borough nor dying persons, to the end that he may administer township can be held, except by special statute. Is the sacraments only to those whose minds are in a it then on the ground that the assemblage comproper state to reason or act of their own volition, plained of obstructed the public street, and so became is an expert as to the sanity of a person. The court a nuisance which the borough was bound to remove ? said: “Was the witness Serda an expert on the But the difficulty of supporting the case on this question of insanity ? Was he skilled in the science theory is twofold: first, the jury has found that the of mental diseases ? A reference to his evidence street was not so obstructed that persons could not will answer these questions. He says he was regu- readily pass and repass, and that the injury resulted larly educated in a college of Spain, and had offi- not from any such obstruction, but from the act of ciated as a priest for ten years; that it was a part of firing the gun; second, admitting that a mob is a his preparatory education to become competent to nuisance, and that of the worst kind, nevertheless, pass upon the mental condition of communicants in it is one that a municipal corporation cannot abate his church, and for that purpose physiology and by the use of ordinary appliances, such as suffice psychology were branches of his studies; “that pre- for the removal of natural or material obstructions vious to his officiating as a priest, it was requisite in or near a highway; resort must therefore be that he should be skilled in determining the mental had to the police force, but as we have already condition of those who sought the sacraments; that seen, for the doings or misdoings of those who comin every case of the administration of the rites of pose this force, the municipality is not liable. The his church to invalids or dying persons it was neces- difference between those cases in which cities, borsary for the priest to make an examination of the loughs, and townships have been held responsible for neglect, and the one in hand,
class. The circumstance that the beneficiaries are the maintenance and repair of highways, sewers, to be of a particular religious faith is only of imwharves, etc., belong to their immediate jurisdic- portance as designating the class. It indicates a tion, and over them they alone have control, hence certain portion of the whole community who are to their responsibility. But the conservation of the be recipients of the charity. It has the same effect peace is a great public duty, put by the Common in this respect as the words seamen, stonemasons, wealth into the hands of public officers- - the blind persons, poor widows, etc., in the cases aljudges, justices of the peace, and mayors, the gov- ready mentioned. For the purpose of defining the ernor, sheriffs, constables, and policemen; hence class of persons, who, as distinguished from all cities and boroughs can no more be charged with other persons in the community, are to enjoy the damages, resulting from their misconduct, than can benefits of the donor's bounty, the legal effect is the counties, townships, or the State at large.” The same, whether the words used be seamen, Episcosame is held as to misfeasance of public officers, in palians, blind persons, poor widows, Jews, stonePollock's Adm’rs v. Louisville, 13 Bush, 221; S. C., masons, or Presbyterians.” The court also observed 26 Am. Rep. 260, and cases referred to in latter re- that there was no proof, and they could not assume, port; also in Grumbine v. Mayor, 2 McArthur, 578; that the preference of Episcopalian children would S. C., 29 Am. Rep. 626. Very similar to the prin- exhaust the capacity of the institution. In Delacipal case in the circumstances and holding was ware County Institute of Science v. Delaware County, Boyland v. Mayor, 1 Sandf. 27.
8 W. N. C. 449, the same court held that an insti
tute of science whose object is the “promotion and In Burd Orphan Asylum v. School District of Upper the community at large," but whose benefits are re
diffusion of general and scientific knowledge among Darby, 8 W. N. C. 446, to which we referred, ante,
stricted to its members except at the pleasure of its p. 42, the question was whether an asylum, for admission to which children of Episcopalians were to
managers, is not a "purely public charity," and is be preferred, was a “purely public charity.” The
not therefore exempt from taxation as such. court observed: "Now it must be conceded, and it has been decided here and elsewhere, that the word 'purely' is not to have its largest and broadest sig-LEGAL DEFINITIONS OF COMMON WORDS. nificance when used in this connection. In the opposing line of thought it is admitted that the word
III. is to have a limited meaning. It is not contended
66 that a charity to be purely public must be open to
PPENDAGE" was defined in School District v. the whole public, nor to any considerable portion of Perkins, 21 Kans. 536; S. C., 30 Am. Rep. the public. Without doubt, an asylum for the sup- 447, where a stereoscope and stereoscopic views port of fifty blind men, or an equal number of pau- were held not to be "
necessary appendages” to a pers, would not be obnoxious to the objection that school-house. The court said the word "would it was not 'purely public. A charity for the main- seem to refer to things connected with the building tenance of disabled seamen, or of aged and infirm or designed to render it suitable for use stonemasons, resident in the city of Philadelphia, school-house." would undoubtedly be a purely public charity; and We have had a definition of "rainy day,” 21 Alb. so also would a charity for the education and main- L. J. 186. Now we find one of “fine day,” in Mctenance of the children of such persons. And if | Andreu v. Whitlock, 52 N. Y. 40. On the day in such a charity should be limited to the white female question it rained till 9 a. M., then cleared up, but orphan children of such persons between the ages rained again about 2:30 P. m., and from 4:30 P, M. of four and eight years, such limitations, though all the rest of the day and night. Held, not a fine they would very greatly restrict the class and the day.” number of the beneficiaries, would constitute no The “most direct route of travel” between A. valid objection to the purely public character of the and T., within a statute giving the sheriff mileage charity. But seamen and stonemasons are only for conveying prisoners to the penitentiary, is the designated classes of persons, distinguished by their railroad, although it is 64 miles long, while the occupations. A charity for the support of poor highway is but 35. Maynard v. Cedar County, Iowa widows, or indigent old men, or the insane poor, of Supreme Court, June 13, 1879, 1 N. W. Rep. (N. a city, county, borough, or township, would be S.) 701. equally a purely public charity, no matter how small A temporary ailment is not a “disease," within would be the number of the beneficiaries, or how the meaning of warranty against disease in a pollimited the class. Why then would not a charity icy of life insurance. As where the warranty was for the support of poor Episcopalians, Catholics, against “disease of the liver," but the assured had Jews, or Presbyterians, of a State or city, be purely bad temporary attacks of congestion of the liver, public; or a charity for the education and main- from which he recovered. Cushman y, United States tenance of the orphan children of such persons ? | Life Ins. Co., 70 N. Y. 72. In like manner hardenNo private gain or profit is subserved, the objects of ing of the brain is not “insanity.” Newton v. Mut. such a charity are certain and definite, and the per- Ben. L. Ins. Co., 76 N. Y. 426; and insanity is not sons benefited are indefinite within the specified "sickness."