“ that upon


RARI, 2, 4; JUDGMENT, 3; Revivor, 3; SUR

ROGATES, 1. 1. The proper mode of raising the question of

jurisdiction is not by motion, but by answer. LANDLORD AND TENANT. -- Wertheim et al. v. Page et al., 26.

See LEASE. 2. Where it appears that a court of another state, having general appellate jurisdiction

LARCENY. of certain judgments, has entertained and acted upon an appeal from such a judgment,

See INDICTMENT, 1. jurisdiction by a proper notice will be presumed. - The Pacific Pneumatic Gas Co. v.

LEASE. Wheelock, 116.

1. As against the lessee it is not necessary to 3. Where a bill of exchange is drawn by a prove a demand where neither forfeiture nor

bank in Louisiana, to the order of another re-entry is claimed or sought.-Jackson v. bank of that state, upon a firm in New Binns, 105. York City, which firm refuses to pay the

2. Where the agreement of the surety to a bill of exchange, the cause of action arises here where the breach occurred and where

lease is absolute to pay upon the lessee's dethe contract was to be performed. — The

fault without requiring notice of any such Hibernia Natl B'k v. Lacombe et al., 168.

default, the lessor is not bound to make any

demand upon the lessee before bringing ac4. Where a defendant makes an unqualified tion against the surety.--Id.

general appearance in the action, he cannot afterwards object to the jurisdiction of the 3. A person may become bound by any mark court over the person ; such appearance con

or designation he thinks proper to adopt, fers jurisdiction over the person.Palmer v.

provided it be used as a substitute for his The Phenix Mut. Life Ins. Co.,, 179.

name, and he intends to bind himself. The

middle initial forms no part of a person's See APPEAL, 25; ASSESSMENTS, 4, 6; BANK- name, and may be disregarded as a surplus

RUPTCY, 4; Copyright, 1; Guardian, 7-9; age.Jackson v. Binns, 110.

4. A clause in a lease providing
Banks, 4 ; Quo WARRANTO, 1; REFERENCE, 9;
Revivor, 4; SURROGATES, 2, 4, 6, 7, 9-11;

default in the payment of the rent, or any Town Boyds, 3.

part thereof, the said hiring and the relation

of landlord and tenant shall wholly cease JUSTICE OF THE PEACE.

and determine," does not render the lease

absolutely void upon such default, but void1. L., who was a justice of the peace, rendered able only at the election of the lessor.-Id.

judgment against plaintiff in a civil action in favor of one W., and afterwards issued 5. An agreement, by which the owner of land, execution thereon to one H. Subsequently,

who has verbally transferred it to his on complaint of II., L. issued a criminal war

daughter, and put her in possession, takes

an oral lease back to himsell, creates no valid rant for assault against plaintiff. Before he

claim against his estate for rent received on was arrested plaintiff settled the judgment,

a formal lease of the premises by him to a and after the arrest his wife settled the matter with W., who acted for H., for $15,

third person. — Snyder v. Guhrie et al., 353. and paid $13 thereof to L., and the prosecu- 6. So far as installments of such rent are paid tion was ended. In an action against L., W. over by him they operate as gifts, but the and H., which charged a conspiracy to ex- agreement is a nudum pactum, and, it seems, tort money, Held, That L. could not be called would not have been enforceable even if in to account for what he did judicially in the writing.-Id. civil action; that it was not his duty to 7. The relation of landlord and tenant being notify plaintiff of the judgment or ask him to pay it before issuing execution; and that

once established continues until severed by

the agreement of the parties, or by some even if he had no right to allow the crimi. nal prosecution to be settled, or to partici

other act or proceeding sufficient in law to pate in such settlement, he could not be

accomplish that result. - A ckley v. Westermade liable for his conduct in that respect.

velt, 391. Collins v. Lane, 21.

8. The service of a notice by the landlord to 2. In Justice's Court, after issue joined, al

pay the rent or deliver possession of the though the other party fails to appear on the

premises does not have the effect to sever the

relation of landlord and tenant.-Id. adjourned day, no amendment can be allowed changing the nature of the action from 9. The receiver of an insolvent corporation

contract to tort.-Gilmore v. Barnett, 28. had deposited a sum sufficient to pay all disSee Costs, 4, 5.

puted debts and leave a surplus. On peti

tion of the owner of the premises leased by LACHES.

the corporation for an order directing the

payment of rent, Held, That if he showed See ASSESSMENTS, 4; BANKRUPTCY, 9; CERTIO- himself a creditor for the amount claimed, he was entitled to payment without regard to 2. The breach of a collateral agreement to pay any liability assumed by the receiver in ra- part of the consideration for land in another gard to the lease.—The People v. The Na. commodity than money creates no lien on tional Trust Co., 571.

the land, and taking such an obligation is 10. The dissolution of a corporation does not

a waiver of any lien so far as the amount terminate a lease of premises occupied by it;

agreed to be paid in another commodity is

concerned.-Id. it can only be canceled with the consent of the lessor.-Id.

See ATTORNEYS, 1-3, 5, 7, 13-15; BANKS, 4, 6; See Bar, 7; Mor TGAGE, 11; RAILROAD COMPA



LIFE INSURANCE, LEAVE TO SUE. 1. The owner of a debt secured by mortgage 1. An insurance policy, payable to the wife of cannot enforce the obligation by action after

the insured at the expiration of a certain

time, or at the death of the insured if before judgment in an action to foreclose the mortgage, unless authorized by the court.-Earl

the expiration of that period, is not assignv. David, 8.

able by the wife.De Jonge v. Goldsmith, 35. 2. But the court may, upon terms, grant such 2. In case of the assignment of such a policy leave to sue, and allow the complaint in an

to a bona fide purchaser who subsequently action already begun to be amended by set

pays premiums, the assignee is entitled to ting up such leave nunc pro tunc.-Id.

The repayment of the premiums out of the

amount due on the policy, and the assignor 3. Plaintiffs recovered a judgment in the U. S. will be entitled to the balance, although she

Circuit Court for the Southern District of guarantees and warrants the validity of the
New York, and docketed the judgment in assignment.-Id.
Ulster County. Upon an action brought

3. One M. obtained a policy in defendant's comupon this judgment, Held, That leave to

pany from one R., who was not an agent of sue thereon, under sec. 71 of Old Code, was not necessary. That section applies only to

defendant, which provided that it should be judgments recovered in the first instance in

void in case of non-payment of any note the courts of this state. The Goodyear Den

when due. He paid half the first premium by tal Vulcanite Co. et al. v. Friselle et al., 446.

a note, which provided that in case it was not paid, the policy should be void. He also

gave a note to R. for more than the annual LEGACY.

premium, on the understanding that he

should take care of the premium pote. Be. See WILL, 3, 4; SERVICES, 2.

fore the first note came due the policy was

assigned to plaintiff, but the note was not L.

paid. On application by plaintiff to pay the 1. While a citizen has the right to criticise the

second annual premium, defendant's agent report of a public official with satire and

corresponded with defendant, which notified ridicule, he cannot in such criticism attack

the agent of the non-payment of the note

and claimed a forfeiture. M. had died during the private character of such official; to do 80 would be libellous.-Hamilton v. Eno, 403.

the time of this correspondence. Held, That

the policy was forfeited; that no waiver was 2. The court was asked to charge that unless shown, and that none could be inferred from

defendant was moved by actual malice, it a retention of the note by defendant; that was not a case for punitive damages, and R. was not an agent or authorized to waive or that the jury should give such damages only modify any condition; that plaintiff stood in as they thought plaintiff had really borne. the place of M. and took the policy subject Held, That the latter part of the request to all its conditions; that she had no right asked for too much, and that the court was to rely on the statement in the policy that not bound to take the good part of the re- the first annual premium was paid.—How v. quest from the bad and to charge the good. The Union Mutual Life Ins. Co., 39. -Id.

4. A policy provided for payment in 60 days 8. Matter that will serve to mitigate damages after the receipt and acceptance of proofs of

must be connected with or bear upon the death. The company had blanks for such defamatory charge.-Id.

proof which they refused to furnish on ap

plication therefor on the ground that the LIEN.

policy was null and void. Held, A waiver of

the condition as to furnishing proofs of death. 1. A vendor's lien for the purchase price of -Grattan v. The Mutual Life Ins. Co., 111.

land is waived where a note is taken by him 5. Insured represented himself in his applicain which a third person joins as security, tion as a

"soda water maker;" the medical and, a fortiori, where the obligation taken examiuation stated that that was his occupais that of a third person, and not of the tion and he was out of doors most of the time vendee.- Hazeltine v. Moore et al., 293.

selling it. It appeared that that was his

trade, but at that time he was engaged in tendance upon a patient, which information selling it in the streets. Held, That his was necessary to enable such physician to answer was not a false representation, and prescribe, is privileged, whether such infordid not amount to a breach of warranty that mation was derived from oral statement of his answers were true.-Id.

the patient, or from ocular inspection or 6. The medical examiner's certificate was filled

otherwise, while such physician was in atup by him and signed by insured. It con

tendance upon the patient.–Dilleber v. The

Home Life Ins. Co., 180. tained a statement that he had given true answers to the examiner, which were the 14. It is not competent for a physician, in same as those contained in the certificate. an action upon a life insurance policy, to One of the questions was left unanswered, testify to information thus obtained with which was subsequently filled in by the respect to the health of the insured while examiner, but incorrectly. Held, That this such physician was in attendance upon such answer must be taken as the declaration of Assured as a patient.-Id. the insurer, and that it was competent to prove by parol the actual transaction be- | 15. Where evidence is limited to a certain purtween insured and the examiner.-ld.

pose, it can only be used for the purpose for

which it was admitted.-Id. 7. Defendant, in 1870, being the holder of two 16. In an action on a policy of life insurance,

notes on which the firm of B. & Co. were liable, procured from B. a policy on his life,

the answer alleged that the insured had had

certain diseases, had obtained other insurand paid the first premium. Two months later he accepted payment of said notes at

ances, and had been rejected by other comless than their face, and delivered them to

panies, and that with regard to all these B.'s agent. Held, That the policy was held

matters his answers in his application to

defendant were false. The court ordered deas collateral security; that the indebtedness

fendant to deliver a bill of particulars, stating was discharged, and that the defendant could not hold the policy to indemnify him for the

the times, places and details of all these

defenses which it expected to prove. But it deficiency.-Babcock v. Bonnell, 158.

appearing that defendant expected to prove 8. Some years after B. expressed a desire not its defense as to ailments by oral and written

to be regarded as having an interest in the statements of the insured not limited to time policy, and stated that the entire interest was and place, the order was modified so as to in defendant. Held, That this did not have provide that the bill of particulars should the effect of a release or create an estoppel. not preclude defendant from giving evidence -Id.

of confessions or admissions by the insured 9. Previous to the issuing of the policy, B. &

which were general as to time and place.Co. had given defendant a note for a cargo of

Dwight et al. v. The Germania Life Ins. Co.,

525. coal, but the coal was stopped in transitu by defendant, and he afterwards sold it and

LIMITATION claimed to hold B. & Co. for the balance, He held the coal when the policy was issued. 1. The amendment of 1876 to sec. 94 of the The policy was to secure a fixed indebted- Code of Procedure, relating to the time withness." Heid, That defendant had no lien on in which an action for an injury to the person the avails of the policy to secure the balance must be brought, in effect repeals the six of said note.-Id.

years' limitation set by sec. 91, subdiv. 5, for

such actions, and reduces such time to one 10. The act of a general agent of an insurance company in demanding payment of a past

year. Dubois v. The City of Kingston, 82. due note given for premium on a policy of 2. A promissory note was made by two joint life insurance, which note provided that if debtors. The payee afterwards died, leaving

was not paid at maturity the policy such note, having upon it several indorseshould cease, is an election to treat the policy ments of payments, some within the six in force and a waiver of the forfeiture, and years, in her own handwriting. Her execua payment of the note pursuant to such de- tors sued one of the joint makers, relying on mand keeps the policy in force.- Palmer v. such indorsements to take the case out of the The Phønix Mutual Life Ins. Co., 179.

statute of limitations. Held, That the in11. A general agent of an insurance company

dorsements are evidence, but not sufficient,

standing alone, to establish the fact of paymay waive a forfeiture.- Id.

ment by the debtor defendant to the owner 12. Where the general agent of an insurance of the note of the amount indorsed and at the

company for the collection of premiums time when it was indorsed. Some evidence requests the insured to send the money due of these facts must be given before a case is upon a note for premium by mail, and the made for submission to the jury.Hulbert et assured sends the amount of premium by al. v. Nichol, 145. mail, such sending is payment of the pre- 3. Under the amendment of 1851 to § 101 of mium, although the general agent does not receive the money.-Id.

the Code, the time within which an action

could be brought could not, as to a married 13. Information derived by a physician from at- woman, be extended by her disability to sue


more than five years, nor more than one year to be instituted prosecutions against plaintiff
after the disability ceased. These two terms under 3 R. S., bih ed.. p. 965, sec. 18, which
were independent of each other.-Acker v. resulted in plaintiff's discharge, who brought
Acker et al., 305.

this action for malicious prosecution and re-
4. Under the amendment of 1870, this disability

covered a verdiet of $50 damages. Held, No
was taken away, and a married woman was

violation of the spirit of the statute was com-

mitted or contemplated, and the questions of
bound to bring her action on a sealed instru-
ment within twenty years after her cause of

probable cause and actual malice were in this
action accrued; and this rule applied to rights

case, under all the circumstances, questions
of action which had then accrued.-Id.

for the jury.-Rhodes v. Brandt, 94.
6. The mortgage in suit was given in 1856. 3. A person guilty of a crime cannot sustain an
Before that time the defendant had insured

action for malicious prosecution or false im-
his life for plaintiff's benefit, and the policy

prisonment against one who institutes
was held as collateral for the mortgage. The

criminal proceedings against him therefor,
policy was forfeited, and in 1866 plaintiff re-

however much malice may be shown, or
ceived a sum of money thereon from the in-

however improper may have been the
surers. Held, Tbat this did not save the

motives of the prosecution. Actual gnilt is

conclusive evidence of probable cause.-
right of action on the mortgage from the bar

Turner v. Dinegar, 160.
of the statute.-Id.
6. A. and B., partners, became indebted to plain- 4. Where, before beginning the criminal action,

the defendant in the action for malicious
tiff, who sued them. The action was com-
menced in 1858. A. alone was served, but

prosecution or false imprisonment had fully
judgment was entered in form against both.

stated his case to an attorney and counsellor

at law, and obtained his advice as that of one
In 1876 plaintiff took proceedings under the

learned in the law, such advice so given can-
Old Code, sec. 375, et seq. and summoned B.

not be excluded as evidence of probable
to show cause why he should not be bound
by the former judgment. B. set up the

cause of good faith and absence of malice on
Statute of Limitations, which would not have

the ground that the person giving such ad-
been good as a defense if set up by him in

vice was the magistrate who afterwards con-

ducted the proceedings.-Id.
the original action. Held, That it was no
bar in this proceeding.Maples v. Mackey et 5. Defendant caused the arrest of plaintiff for
al., 493.

the larceny of two unrecorded deeds, formerly

executed by plaintiff to defendant. The
See CoxSTITUTIONAL LAW, 1; CONTRACT, 2 ; Cor- affidavit on wbich the arrest was made
PORATIONS, 7, 19; Fraud, 3; RevivoR, 1, 2;

charged the larceny in technical terms, and

stated the facts and circumstances. The

facts were proved true. Held, That an action

for malicious prosecution could not be main-
1. Where the bonds of a foreign government,

tained; that the affiant was liable for the
in addition to the payment of annual interest

statements in the affidavit, but not for the

legal conclusions draw from them by the
and principal, give the holder a chance of

magistrate, district attorney or grand jury.--
drawing a cash prize, such bonds are lottery

Thaule v. Krekeler, 395.
tickets or certiticates within the meaning of

the Revised Statutes.- Kohn v. Kohler, 301. 6. Before a defendant in a suit for malicious
2. Any one buying such a bond may recover

prosecution can be called upon to go into a
of the seller the price paid, and double the

defense, the plaintiff must establish the want

of a reasonable and probable cause for the
value of any goods, &c., given in consider.
ation of such purchase, with double costs.-

coroplaint made, and that it was instituted

for malice.-Id.

7. Plaintiff was asked whether he had made an

offer in the police justice's court to convey

the property to defendant if she would reim-
1. In an action for malicious prosecution, the

burse his expenses. Held, Improper, as the
court charged that the failure of the grand evidence could have po bearing on the ques-
jury to indiet plaintiff for the alleged offence tion of malice or probable cause for the pro-
was conclusive evidence of his innocence.

Held, error.— Barber v. Gould, 81.

8. Defendant was asked if plaintiff had deeded
2. Plaintiff, a physician, was employed by one

the property to other persons about the time
B. to exhume the body of B.'s child, and re-

the deeds in question were stolen. Held,
move a portion of a fractured thigh bone,

Proper, as it bore directly on the question of
which was done, such portion to be used for probable cause.— Id.
the purpose of sustaining a defense of mal-
practice against defeudant, a physician, who

had set such fractured limb, and subsequently
brought an action against B. to recover for 1. A party cannot have s mandamus order un-
his professional services. Defendant caused der the R. S. for the delivery to him of the

books and papers of a certain office, unless will enable a court to presume that there was the removal or expiration of the official term in the beginning an actual bona fide marof the outgoing officer and the election or riage.-Hynes et al. v. McDermott et al., 508. appointment of the relator as bis successor is conceded, or established beyond contro. | 7. In the absence of proof as to the law of marversy. If these facts are not so established

riage in a foreign country, it will not be pre

sumed that it was different from that in this or conceded, quo warranto is the proper rem

State.-Id. edy.- The People ex rel. Cahill v. Hines, 88. 2. In support of a writ of mandamus the relator

MARRIED WOMEN. seeking the writ must show a clear legal right and the absence of a plain and ade. 1. Where a husband has the general care and quate legal remedy:- The People et rel. Cop

management of his wife's property she is pers v. The Trustees of St. Patrick's Cathedral et

bound by his acts, and cannot defend an acal., 124.

tion on a bill contracted by him in relation 3. Where it is sought by mandamus to enforce to said property on the ground that she did

some matter of private interest, the legal not specially authorize such contract or even right of the relator must be complete, not

that she did not know of it.— Armstrong et inchoate. It must also be vested in the re

al. v. Jones, 144. lator. It is not the province of a mandamus 2. Where a wife is made a party with her to enforce a doubtful equity or aught save a husband in action affecting only ber inchoclear legal right.-Id.

ate right of dower in real estate, she may, 4. Mandamus is appropriate where a public

under sec. 450 of the Code, appear and anduty is imposed or some act specifically di.

swer separately.-Janinski v. Heidelberg, rected by statute. But it will not lie to en

202. force mere private contracts, however special See Criminal Law, 6; Life INSURANCE, 1, 2; or peculiar their nature.-Id.


See Revivor, 4, 5.

1. The negligence of a servant in using im

perfect machinery will not excuse his prinMARRIAGE.

cipal from liability to a co-employee for an 1. The validity of a contract of marriage must

injury which could not have happened if the depend upon the place of performance.

machinery had been suited to the use to Campbell v. Crampton, 183.

which it was applied.-Cone v. The D., L. &

W. RR. Co., 232. 2. The place where the parties are to be domi

ciled is the place of performance of the mar. 2. While it is true that a master is not liable to riage contract.-Id.

his servant for damages caused by the negli

gence of a fellow-servant, yet an employee 3. A contract of marriage, void by the laws having charge of a distinct department of

of Alabama, entered into in that State, to the master's business, with authority to embe solemnized in the State of New York, ploy subordinate servants in his department the parties intending to live in Alabama, is and discharge same, is not a fellow-servant, void and cannot be enforced.-Id.

but rather an agent of the master, or 4. In this case, where the relation of aunt and

alter ego, and the master is liable for the nephew exists, the consanguinity of the par

negligence of such agent. And this is true, ties would not render their marriage a

though such agent may be under the direcvoidable one by the statute or

tion of a superior. The test is largely in

common law of this state, but such an agreement of

the power to employ and discharge subalmarriage will not be sanctioned, for it

terns; also, in the independence with which

the function is exercised. Even the latter contravenes the laws of moral decency and public policy.-Id.

need not be absolute.-McCosker v. The L.

I. RR. Co., 388. B. Semble. That marriage should not be sanc: 3. An employer is not liable for an injury to his

tioned in any nearer degree than that of cousins german.-Id.

employee arising from the negligence of a

co-employee. To make him liable it must 6. Under the laws of this state, a man and wo- be proved that the person through whose neg

man who are competent to marry may do so ligence the injury happened had been enper verba de presenti without going before a trusted by the employer with the manageminister or magistrate, without witnesses or ment or control of his business, or some previous public notice, and without form or branch or department thereof to which the ceremony, or record or written evidence kept, person injured belonged, and that the injury and if subsequently the marriage is denied, happened therein in consequence of some proof of actual cohabitation, public acknowl. negligent act or omission of the person so edgment and recognition of each other as entrusted. — Garrison v. The Knickerbocker such, and the general reputation thereof, Ice Co., 602.


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