« ForrigeFortsett »
their places. Defendants agreed to promote the in- jured party. The second set up a settlement and comterests of the company, to furnish the means necessary promise of plaintiff's claim. The third denied “each for carrying on its business, of which they were to and every other allegation” in the complaint not behave the entire control, aud to make up accounts and fore specifically “admitted, qualified or denied.” divide profits every six months. In an action to compel Held, that the answer did not put in issue the allegaan accounting for payment of profits, held, that in the tions of the complaint that defendants made the exabsence of proof to the contrary the presumption was cavation which caused the injury, or that the same that the contract was authorized by the proper officers was in a public street, and that plaintiff was not reof the company, and was entered into for its benefit quired to prove the same on the trial. It was held in and advantage; also that it had power to make the the case of Allis v. Leonard, reported in memorandum,
In the absence of proof showing a want of au 46 N. Y. 688, and more fully, 22 Alb. L. J. 28, that an thority or a violation of the plaintiff's charter, the answer which admitted the execution and delivery of claim that the contract was ultra vires cannot be up a promissory note, and denied every fact not expressly held. Every presumption is in the contrary direction. admitted, did not concede the truth of an allegation Another complete and perfect answer to the objection in the complaint stating a transfer upon good considurged is that the defendants, having reaped the bene eration of such note by the payee to the plaintiff. The fits arising from the contract, cannot under the plea of facts of that case however leave no question as to ultra vires seck to defraud the other parties. Even what was admitted or claimed and do not bear upon although it may have been made without express au the questions raised here. But there seems much reathority, the contract must be allowed to stand as the son for saying in this case within the principle stated plainest rules of good faith demaud. Castle v. Lewis, in Potter v. Smith, 70 N. Y. 300, and People v. North78 N. Y. 131. The rule is well settled that the plea of ern R. Co., 42 id. 227, that the implied admission conultra vires should not, as a general rule, prevail, tained in the first and secoud courts of the answer whether interposed for or against a corporation, when may be construed as coming within the description of it would not advance justice, but on the contrary facts excepted from the effect of the general denial as would accomplish a legal wrong. Whitney Arms Co. having been theretofore specifically admitted. Under v. Barlow, 63 N. Y. 02. Seo also Atlantic State Bank the second defense defendants introduced in evidence v. Savery, 82 id. 291. Under the authorities cited, it the record in au action brought by plaintiff's wife is very manifest that the defendants cannot avail against defendants to recover damages for the same themselves of the plea of ultra vires. Some of the de- | injury. In the answer in that action defendants adcisions also hold that this plea can only be interposed mitted that the place of the accident was a publio by a corporation and not by an individual dealing with street, and that defendants caused the excavation. such corporation. Bissell v. Mich. South. R. R., 22 N. | Ileld, that the admission so made, unexplained, must Y. 258; Davis v. Old Colony R. R., 131 Mass. 258. But be taken as an admission in this action, and aside inasmuch as the defendants cannot interpose such a from the question of pleading, justified a refusal to plea on the ground already referred to, it is not neces uonsuit. Clark v. Dillon. Opinion by Ruger, C. J. sary to determine the last point. The doctrine is well [Decided Nov. 25, 1884.] settled that where joint contractors are sued, a recorery against one discharged the liability of the others, and no action will lie afterward against the party now
IOWA SUPREME COURT ABSTRACT,* included in the first suit (Candee v. Smith, 93 N. Y. 319); and upon no principle can it be held that the
INSURANCE-MASONIC AID ASSOCIATION-BY-LAWS plaintiff was bound to sue each one of the defendants
ALLOWING CHANGE OF BENEFICIARY-WILL DOES NOT individually to recover moneys not accounted for,
CHANGE.-R. S. became a member of the Northwestwhich were received by reason of their joint liability.
ern Masonic Aid Association, and received a certifiRider Lije Rast Co. v. Roach. Opinion by Miller,
cate providing that if he was a member at his death J.
the association would pay to his wife, R., four-fifths [Decided Nov. 25, 1881.]
of $2,500, and to his daughter, M. A. I)., Que-fifth.
The by-laws provided that any member might change PLEADING-CONSTRUED AGAINST PLEADER-DENIAL
the name or names of the beneficiaries in his certifiADMITTED, QUALIFIED OR DENIEI ”-ADMISSIONANSWER IN ANOTHER SUIT.-It was formerly the set
cate upon application in writing to the secretary, stattled rule to construe doubtful pleadings most strongly ing to whom he desired such benefits paid, whereupov against tho pleader, but this rule has been so far modi
the secretary, upon surrender of his old certificate, ficd by the Code as now to require them to be liberally
should change upon the record the name of such beneconstrued with a view to substantial justice between
ficiary, and issue a new certificato of the same number
as the old one. S. made a will, in which he bethe parties. This modification has however been held to extend only to matters of form and not to apply to
queathed to his sons, T. S. and J. F. S., and his daughthe fundamental requisites of a cause of action. Spear ter, M. A. 1)., $2,500, the proceeds of his life insurance, v. Downing, 34 Barb. 522; ('ruger v. Hudson R. R. Co.,
in equal shares. Held, that the beneficiaries could only 12 N. Y. 190; Bunge v. Koop, 48 id. 225. A construc
be changed in the manner designated in the by-laws; tion of doubtful or uncertain allegations in a pleading,
that the will was not effectual for that purpose; and which enables a party by thus pleading to throw upon
that the fund should be divided as stated in the cer. his adversary the hazard of correctly interpreting
tificate. McClure v. Johnson, 56 Iowa, 620; S. S., 10 their meaning, is no more allowable now than for
N. W. Rep. 217; Kentucky Masonic Mutual L. Ins. merly; and when a pleading is susceptible of two
('o. V. Miller's Adm'r, 13 Bush, 189; Foster v. Gile, 50 meanings, that shall be taken which is most unfaror
Wis. 603; S. C., ñ N. W. Rep. 555. Supreme Council v. able to the pleader. Bates 5. Rosekrans, 23 Ilow. Pr. Priest, 9 N. W. Rep. 181, distinguished. Stephenson v. 98. Plaintiff's complaint alleged that defendants ex
Stephenson. Opinion by Seevers, j. [See 2. Eug carated a pit in a city street and left the same un
Rep. 702.] guarded, in consequence whereof plaintiff's wife, while [Decided (ct. 21, 1881.] passing along the street, fell into the pit and was in
NEGLIGENCE-ACCIDENT-XO PRESIMPTION FROM.jured. The answer contained three defenses, separately stated. The first alleged that the injuries com
In an action for personal injury caused by reason of a plained of were caused and contributed to by the in
* Appearing in 21 Northwestern Reporter.
car door falling upon plaintiff while he was standing ou a street where a freight train of defendant containing the car was passing, where it does not appear how the door bappened to fall except that the fastenings had become insufficient, probably by wear or breakago, mere proof of the accident and its attending circumstances does not raise a presumption of negligence on the part of the defendant, and cast the burden of rebutting such presumption upon it, but plaintiff must prove that the defect causing the 'accident came to the knowledge of defendant, or existed for such a leugth of time that knowledge should be presumed. Gandy v. C. & N. W. R. Co., 30 Iowa, 420; McCummons v. C. & N. W. R. Co., 33 id. 187; Aylesworth v. C., R. I. & P. R. Co., 30 id. 459; Perry v. Railroad Co., 36 id. 102; Davis v. C., R. I. & P. R. Co., 40 id. 292; McCormick v. C., R. I. & P. R. Co., 41 id. 193; Losee v. Buchamnan, 51 N. Y. 476; Garrison v. New York, 5 Bosw. 497; Hall v. Manchester, 40 N. H. 410; Hart v. Brooklyn, 36 Barb. 226; Thomp. Neg. 1227. Case v. Chicago, etc., R. Co. Opinion by Adams, J. [Decided Oct. 22, 1884.]
10. It has beeu held that when trustees are personally qualified by citizenship to bring suit in the Federal courts the jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified. Coal Co. v. Blatchford, 11 Wall. 172; Knapp v. Railroad Co., 20 id. 123. The converse of this proposition must be true. The results of the litigatiou belong to the parties beneficially interested. The trustees in one sense are mere conduits; but as they control the litigation, and are legally the owners of the cause of action, they are entitled to maintain the action. We do not understand Jones v. League, 18 How. 76, conflicts with the foregoing views. In that case the question was whether there had been a change of citizenship, so that the Federal courts had jurisdiction. The court said: “The change of citizenship, even for the purpose of bringing suit in the Federal court, must be with the bona fide intention of becoming a citizen of tbe State to which the party removes.” This case recognizes the right of a party to change his residence, although it may be done for the express purpose of affecting the jurisdiction of the Federal courts. The motive or intent therefore of the change is immaterial. Vermont v. Chicago, etc., R. Co. Opinion by Seevers, J. [Decided Oct. 21, 1884.]
MISSOURI SUPREME COURT ABSTRACT.*
NEGLIGENCE-CAUSE OF ACTION ASSIGNABLE-MAINTENANCE-DEPRIVING OF RIGHT TO REMOVE TO FEI)ERAL COURT.-An action for a tort is assignable so as to vest in the assignee a right of action in his own name. In Weire v. C'ity of Davenport, 11 Iowa, 49, it was held that a right of action for a tort could be sold and transferred at common law, and in Gray v. McCallister, 50 lowa, 497, it was held that a claim for a personal tort, which dies with the party, could be sold or transferred like any other cause of action. See also Small v. Railroad Co., 50 Iowa, 338. We are not disposed to depart from the rule established in these cases, therefore the assignment in this case is valid under the law of tbis State, J., who was injured by the negligence of defendant railroad company, assigned his claim for damages to V., and V. executed the following agreement: “ In consideration of the assignment to me by J. of his claim for damages against the Chicago & Northwestern Railway Com. pany, resulting to him by reason of an injury received by him on or about the 31st day of August, 1881, on said railway, I hereby agree to dispose of the entire amount realized on said claim as follows: For my own compensation in and about the prosecution of said claim, and for the use of any advances of money I may make I am to retain thereof the sum of $50; I am also to retain all sums of money that I may advance in the prosecution of said claim; next, I agree to pay out of the proceeds of said recovery the reasonable fee of the attorneys and agents employed to prosecuto said claim on such fee therefor, as may be agreed upon, if any agreement for a specific amount shall be agreed upon, and the balance of said recovery I agree to pay to the said J." IIeld, that the cause of action was assignable; that the assigument and agreement did not constitute barratry, cham perty or maintenance; and that V'. was entitled to maintain an action for damages against the railway company in his own name. ('onceding that the object of the assignment was to deprive the defendant of the right to removo the action to the Federal court, yet it had the effect to vest the legal title to the claim in the plaintiff. Ile legally owns and controls it, and if the action is tried on the merits the judgment is conclusive against the world. There is no law wbich prohibits the assignment. ('learly the act of Congress does not do so. It cannot therefore be a fraud on the rights of the defendant. At most the defendant has been deprived of a right in a manner uot prohibited by law. The assignment does not havo the effect to cut off any defense the defendant may have. This case is clearly distinguishable from Browne v. Strode, 5 Cranch, 303, and McNutt v. Bland, 22 Ilow.
MARRIAGE-WIFE'S PROPERTY ACQUISITIONS BY PURCHASE -- BY GIFT – ACT OF 1875. - The married woman's act of 1875 (now $ 3296, Rev. Stat. 1879) in nowise interfered with the right of married womeu to acquire, or in the manner iu which they might acquire il separate estate in personalty by gift or purobase, as it previously existed. The act was designed to enlarge the operation of the right, to simplify the proof of the existence of the estate, and to afford protection, especially against the effects of the husband's reducing the property to possession by providing that no such reduction should be effectual unless evidenced by writing signed by her. The purchases of a married woman protected by that act are those made with her separate money or means, and those only. The act protects gifts as well as purchases; and where a married woman by her pleading claimed property by virtuo both of gift and purchase, and there was evidence tending to show that she acquired it in consideration partly of love and affection and partly of money paid, held, that it was error so to instruct the jury as to permit a verdict for her only in case they found the money paid was her separate means. She might fail to show this, and consequently so far as the acquisition was a purchase it might be without the pale of the act, and yet so far as it was a gift be protected; and the possible difficulty of ascertaining the exact extent of her interest would not warrant the court in withholding the question from the jury. Held, also, that where a married woman had such an undivided interest, if a person claiming through her husband appropriated the property to his exclusive use, and denied ber right altogether, that was in law a conversion and entitled her to maintain an action against him as in trover for damages to recover her interest. Wiles v. Maddox, 26 Mo.17; Watson v. King, 4 Campb. 272; Wilson v. Reed, 3 Johns. 175; Holcomb v. People's Savings Bank, 92 Pem. St. 338. JcCoy v. Hyatt. Opiuion by Philips, Com’r.
EVIDENCE-AGENT'S DECLARATIONS.—The declarations of an agent are admissible as evidence against his priucipal only when made while trausactiug the
* To appear in 80 Missouri Reports.
business of the principal and as a part of the transac sett, 21 id. 162; State v. Gibson, 36 Ind. 389; Š. (., 10 tion wbich is the subject of inquiry. Hence where the Am. Rep. 42; 1 Bish. Marr. & Div., $ 87; State v. Kenbaggage-muster of a railroad company, while away nedy, 76 N.('. 251; S. C., 22 Am. Rep.683; Ellis v. State, from the baggage-room of the company and engaged 42 Ala. 525; Burus v. State, 48 id. 195; S. C., 17 Am. in the transaction of his private business on his own Rep. 34; U. S. v. Stanley, 109 U. S. 3. State v. Jackson. premises, gare directions to a stranger with reference Opiniou by Henry, J. [Seo 3:2 Eng. Rep. 7.] to the delivery of baggage, held, that they were not binding on the company. Adams v. Railway Co., 74 Mo. 554. City of Chillicothe v. Raynard. Opinion by Norton, J.
MAINE SUPREME JUDICIAL COURT
CONTRACT-PERSONAL LIABILITY OF AGENT.—Tho equity has no power to compel specific performance, to reform a deed, or to do any thing else which will di
defendants gave the plaintiff a note reading: “$1,000. vest title to land out of her. Fence where there
Carmel, April 22, 1870. For value received, we, the were two deeds of trust executed by husband and
subscribers for the Carniel Cheese Manufacturing Comwife, and both intended to cover the same land, but
pany, promise to pay William Simpson, or order, one
thousand dollars in six months from date, with interby mistake the earlier deed described a different tract,
est. F. A. Simpson, Rufus Work, A. S. Garland.” and because the holder of the later deed had notice of the mistake, the court decreed that the first deed
IIeld, that an action upon the note could not be mainshould be reformed and enforced as a first lien against
taived against the signers, as it did not purport to bo
their promise, but the promise of their principal, aud the true laud. Ileld, that this decree was correct so
if given without proper authority the agents may be far as it related to the busband's interest, but errone
liable in another form of action. Nor could an action ous so far as it related to the wife's, and as to her in
of money had and received bo maintaiued against terest the second deed must remain the first lien. Shroyer v. Nickell, 55 Mo. 261; 7 Cent. L. J. 182; At
them where they received the money as agents, and
disposed of it for the benefit of their principal before kison v. Heury, 80 Mo. 151. Veier v. Blume. Opin
the commencement of the suit, and without notice to ion by Sherwood, J.
withhold it. The note does not contain the promiso MARRIAGE-HUSBAND) AND WIFE'S JOINT ESTATE of the defendants. There are in it no apt words to CONVEYANCE OF-TITLE BOND-EQUITY.–Where a hus bind them, but the promise is expressly made for the band and wife aro seised in entirety the husband may corporation. The testimony introduced has no tendwithout joining his wifo convey his legal or equitable ency to fasten that promise upon them, nor would estate, subject to ḥer right of survivorship. But that or any other having that tendency be competent where the husband alone executed a title bond for for the purpose. So far as the action is founded upon such land, held, that the wife's estate could not be di that contract, it must stand or fall with it. Any vested by reason thereof, although she afterward re proof offered, whether in writing or otherwise, must ceived from her husband part of the purchase-money, correspond to the allegations in the writ. If they and thereupon expressed satisfaction with the sale. have signed a note purporting to bind a principal Hall v. Stephens, 65 Mo. 670; Shroyer v. Nickell, 55 id. without authority, the note is simply void. The agent 264; 1 Cent. L. J. 182; Dovorse v. Suider, 60 Mo. 235; thus doing may be liable in another form of action, Baldwin v. Snowden, 11 Ohio St. 203; Ackert v. Pultz, but certainly not in a suit upon a contract into which
Barb. 386; Purcell v. Goshorn, 1ī Ohio, 105; Pilcher he never entered. This seems to be clear upon priuv. Smith, 2 Head, 208; Martin v. Develly, 6 Wend. I. ciple, and is supported by a decided preponderance of Atkison v. IIenry. Opinion by Sherwood, J.
authority. It may be considered as well settled law
in this State and Massachusetts. In New York, whilo ASSIGNMENT-CAUSE OF ACTION FOR TORT.-A causo
the earlier decisions were opposed, the later are in faof action against a railroad company arising under the
vor. It is not necessary to cite all the cases or discuss 43d section of the Railroad Law, for double damages
them in detail. The following will givo all the light for the killing of live stock, cannot be assigned so as to
necessary : Harper v. Little, 2 Je. 11; Stetson r. Patinvest the assignee with the right to sue. Citing Wal
ten, id. 358; Noyes v. Loring, 55 id. 108; Ballou V. lou v. Railway Co., 74 Mo. 5:21, and distinguishing Talbot, 16 Mass. 461; Abbey v. ('hase, 6 ('ush. 54; Jefts Smith v. Kennett, 18 id. 151. Snyder v. Iubush, St.
v. York, 4 id. 371; S. ('., 10 id. :39:2; Bartlettr. Tucker, Louis & Pac. Ry. Co. ()pinion by Norton, J.
104 Mass. 330; Bray v.Kettell, 1 Aller), 80; 1 Pars. ('ont. CONSTITUTIONAL LAW-INTERMARRIAGE BETWEEN
68, and note. Thus it is evident that the defendants WUITES AND NEG ROES. –The act making intermarriage
caupot be holden upon the noto declared upon, even between white persons and negroes a felony (Rev.
though they had no authority to bind the principal; Stat., $ 1540) is no violation of the 14th amendment of nor can they be holden upon the count for money had the Constitution of the United States. Neither is that
and received; for whatever money they had was clause of the act which provides that the jury trying a
received as agents, and disposed of for the benefit of party accused of such a marriage may determine the
their principal before the commencement of the suit, proportion of negro blood in either party to the mar
and without notice to withhold it. Simpson v. Garriage from the appearance of such person, a violation
land, Opinion by Danforth, J. [See 17 Am. Rep. of that clause of section 5:1, article 4 of the ("onstitu
818.] tion of Missouri, which provides that “the General
FRAUI)-RESCISSION OF CONTRACT-OFFER TO REAssembly shall not pass ang local or special law regu
STORE-DAMAGES.–To rescind a contract of sale of lating the practice or jurisdiction of or changing the
merchandise, which has been delivered, on the ground rules of evidence in any judicial proceeding.” “The
of fraudulent representations of the seller, the buyer privileges and immunities of citizens of the l'uited
must restore the goods to the seller, if they are of any States " protected by the 14th amendment are such as
value, or to offer to restore them under such circumare secured to them by the Constitution of the l’nited
stances as to show an existing intention and ability to States and laws enacted in pursuance thereof, and the
deliver them into the possession of the seller, or is ho right of unrestricted marriage is not among these. The Slaughter House cases, 16 Wall. 36; Minor y. llapper
*To appear in 76 Maine Reports.
elects, to accept them. When such a contract has not standing sold the note, and G. was compelled to pay been rescinded the buyer is liable for the contract it, principal and interest, to the purchaser. Held, that price, less the damages occasioned by any fraud that by the sale of the note C. violated a trust, and thereby was practiced upon him in the sale. Sharp v. Ponce. forfeited his right to retain that portion of the purOpinion by Walton, J. (See 27 Alb. L. J. 218, 375. chase-money received from G., and that assumpsit for -ED.]
money had and received was a proper form of action
in which to recover it. Moore v. Dlarshall. Opinion by ELECTION--ELECTOR DISFRANCHISED--UNREASONABLE
INJUNCTION-JUDGMENT NOT ENJOINED_RES ADpermit a legal elector to vote on the ground that his
JUDICATA.-A court of equity never enjoins a judg. name was checked; that another man had falsely per ment except upon some distinct equitable ground sonated him and voted under that name, is unreason
which neither was nor could have been set up as a deable, and renders them liable to an action under R. S.,
feuse to the action at law. An issue once tried in a ch. 4, S 63. (2) It appears to us that the question was one
court of law is never retried by a court of equity. The upon which men of common intelligence, acting fairly parties have had their day in court, and they must and without bias, could not be expected to take oppo)
abide by the result. The rule was correctly stated by site sides. The defendants claim that they were jus-Chief Justice Marshall in Marine Ins. Co. v. Hodgson, tified in their action, because two gentlemen present, 7 Cranch, 33:2. It is that any fact which clearly shows who were lawyers, declared that the plaintiff should
it to be against conscience to execute a judgment at not be permitted to vote, as it would invalidate the law, and of which the complainant could not have election; and fearing that effect, they refused the
availed himself at law, or which he was prevented vote. We cannot conceive how two lawyers, giving from availing himself of by fraud or accident, untheir opinions upon their responsibility as such, could mixed with any fraud or negligence of himself, or his express such an opinion. It must have been inspired agent, is ground for enjoining the judgment; but a by political interest or bias rather than by legal learn- legal defense, actually made at law, is not ground for ing. The idea that becauso a fraudulent ballot had enjoining the judgment, though the court may think been put into the ballot box, which, if it would change it ought to have prevailed. “It is now, I apprehend the result, any tribunal having power to determine
well settled,” said Redfield, J., in Emerson v. Udall, tho election would reject, the reception of the honest,
13 Vt. 477, “that a court of equity will not examine legal ballot would invalidate the whole election, is, to
into the foundation of a judgment of a court of law, say the least, unique. No elector can be legally dis upon any ground which either was tried, or might franchised by being falsely personated by another as in
have been tried in the court of law. The judgment of this case. The defendants were so advised by several
a court of law is conclusive upon all the world as to all lawyers, among them the solicitor for the town, whose matters within its cognizance. If a party fail by not opinion was given at the request of the chairman presenting his defense, when he should have done it, of the board, and that they ought to permit he can have no redress in a court of equity. Much the plaintiff to vote. (3) Where the act of the select- less can ho expect relief in a court of equity, when he mou in refusing to permit a legal elector to vote is un has had a full trial at law upon the very grounds which reasonable, but not corrupt, punitivo damages will not
he now wishes to urge anew. To the same effect is be awarded in an action against them by such elector. 2 Story Eq., $ 894, and High on Iuj., $ 96. Buchelder v. Pierce v. Getchell. Opinion by Libbey, J.
Bean. Opinion by Walton, J.
MASTER ANI) SERVANT—EVIDENCE AS TO FITNESS OF EMPLOYEE-JURY CANNOT DECIDE FROM SIGIIT.-(1)
CRIMINAL LAI. In an action for personal injuries alleged to have been caused by the negligenco of the employer in retaining the services of a fellow servant who was careless, and
VERI)ICT-RECEIVING IN ABSENCE OF DEFENDANT
-RIGHT TO POLL JURY-SUNDAY NOT COURT DAYwhose carelessness caused the injury, a witness testified that ho considered tho fellow serrant slow and
ERROR.–The jury returned their written verdict in a lazy, and not fit for the service, he was so slow, and
criminal case to the judge of tho court on Sunday, in witness had so informed the agent of the employer;
the absence of the defendant and his counsel, and and in answer to a question, if the fellow servant was
without either of them being called or notified. The competent and careful in the performance of his du- judge received the verdict, and discharged the jury
from further consideration of the case. ties, witness testified: “Yes, he was always careful
At the openabout his work.” IIeld, that this evidence was not
ing of the court on the next day (Monday), the desufficient to establish the negligenco of the employor.
fendant asked the court to recall the jury, and allow . (2) The jury is not authorized to decido that a person
him the opportunity of having the jury polled in his is unfit to be employed as a brakeman on a railroad, on
presence; but the court denied the application. The account of what they saw or supposed they saw, or
defendant also moved that the verdict be set aside and oould read in his face and manner whilo testifying be
stricken from the files; that the jury bo recalled, and fore them as a witness, and determine from that alono
directed to return a proper verdict; all of which mothat tho railroad company was negligent in employing tions, as well as the motion for a new trial, were oversuch a personi. Corson v. Muine Cent. R. Co. Opinion ruled. Ileld, that neither tho defendant nor his coun
sel, in the absenco of notice, were bound to be in atby Walton, J.
tendance upon the court on Sunday on the coming in MONEY HAT) AND RECEIVEI)—TRUST-SALE OF NOTE.
of the jury; and held further that on account of the -C. and G. were tenants in common of a parcel of action of the court in discharging the jury, and refusreal estato. (! conveyed his party to G. and took G.'s ing to poll the jury in the presence of the defendant, note therefor. Both parties agreed that the salo was the judgment must be reversed and
new trial ono only in form, that ('. was to continue the actual granted. When a verdict is announced the defendant owner of one-half and that G. should not be required may require that the jury be polled. A party has, to pay the note. G. Bold and conveyed a part of the in all cases, the right to know whether the supposed land and paid to (. a portion of the purchaso-money
verdict is the verdict of each juror, or only one of the received therefor. ('. then in violation of the under jury; and examining the jury by the poll is the only
recognized means of ascertaining whether they were It also appeared that divers rooms, closets and drawers unanimous in their decision. This right is equally ap in the house were ransacked; but there was no eviplicable to civil and criminal cases. The appellant dence that burglar's tools had been used to effect the therefore had the legal right to poll the jury, and he entry or to open inner doors or drawers. Held, that cannot be deprived of that right without his consent. ev oce that he defendant, when arrested, had such Cr. Code, $ 208; Civil Code, $ 283; Maduska v. Thomas, tools in his possession was nevertheless admissible. 6 Kans. 159; Munkers v. Watson, 9 id. 668-673; James People v. Winters, 29 Cal. 658. State v. Davis. Opinion v. State, 55 Miss. 57; 30 Am. Rep. 496, and notes; State by Hough, (. J. (80 Mo.) v. Hughes, 2 Ala. 102. If it be urged that the appellant was voluntarily absent from the court-room on the coming in of the jury, and thereby waived his
INSURANCE LAW. right to have the jury polled, it is sufficient to answer that veither he nor his counsel, in the absence of FIRE-LOSS-LOCATION OF GOODS.- Whero a policy notice, were bound to be in attendance upon the court of fire insurance in one clause insures household goods, on Sunday. Dies dominicus non est juridicus-the furniture, clothing, etc., contained in a "two-story Lord's day is not a court day. While it is lawful for a frame dwelling-house and additions, occupied as a court to receive a verdict on Sunday, yet as the parties residence," and in another clause insures“ horses, have the right to poll the jury, the court ought not to buggies, hay, etc., aud barn tools,” the insured cannot make such disposition of the case, in the absence of
recover for the loss of the household goods by burning the parties and counsel, as to prevent the exercise of
of the barn into which they had been removed ou acthis right. Stone v. Bird, 16 Kans. 488; Norvell v. count of a previous fire in the dwelling-house. HartDeval, 50 Mo.272; Reid v. State,53 Ala. 402; Stewart v.
ford Ins. Co. v. Farrish, 73 111. 166; Annapolis, etc., R. People, 23 Mich. 63; James v. State, supru;1 Bish. ('r. Co. 7. Baltimore Fire Iug. Co., 32 Md. 37; S. C., 3 Am. Pro., SS 270, 272. Sup. Ct. Kans. State v. Muir. Opin Rep. 112; and Bryce v. Lorillard Ins. Co., 55 N. Y. 240. jou by Horton, C. J. (32 Kaus. 481.) [See 4 Neb. 86; Sup. Ct. Mich., Nov. 19, 1884. English v. Franklin Fire 28 Am. Rep. 484; 67 N. C. 283; 88 Penn. St. 189; 49 Insurance Co. Opinion by Cooley, C. J. (21 N. W. Cal. 41.]
Rep. 340.) BASTARDY-CIVIL PROCEEDING -- PREPONDERANCE
FIRE-FORM OF POLICY_WAIVER OF PROOFS OF LOSS. OF EVIDENCE — CHARGE BELIEVING CERTAIN WIT
In the absence of averment as to the form of an insurNESSES. -If a doubt is raised as to the paternity of a ance policy agreed to be issued, it will be assumed that bastard child by reason of the complainant's comec the form stipulated for was the form then in use by tion with other men at about the time it was begotten, the company, and that the terms of such policy were other facts may be shown suflicient to satisfy the jury enibraced by implication in the contract. Flubbard v. that the accused is the father. State v. Pratt, 40 Iowa, IIartford Ins. Co., 33 Iowa, 325. Seo also De Grove v. 631. In other words, the jury are to determine from Insurance ('o., 61 N. Y. 594. Acts or omissions relied all the evidence before them whether or not the ac upon as a waiver of preliminary proof should, to concused is the father of the child. The first instruction stitute such waiver, take place before action is brought therefore was properly refused. The second instruc if not before the time has expired within which the tion also was properly refused. The proceeding is es
insured has a right, under the terms of the contract, sentially a civil one, and the rules of evidence govern to supply such proof. Beatty v. Lycoming Co. Mut. ing civil actions are applied. ('arter v. Kriso, 9 Ohio St. Ins (0., 16 P. F. Smitb, 9; Fland. Ins. 593, note. Be402; Glenn v. State, 46 Ind. 368; State v. Evans, 19 id. sides in this case no waiver was pleaded. Lumbert v. 92; Byers v. State, 20 id. 47; State v. Brown, 44 id. 329. Palmer, 29 Iowa, 104. Sup. ('t. Iowa, Oct. 24, 1881. In this State a preponderance of evidence is all that is
Smith v. State Ins. Co. Opinion by Adams, J. (21 N. required in civil actions, even in cases of fraud. Pat
W. Rep. 115.) rick v. Leach, 8 Neb. 538; Search v. Miller, 9 id. 30;
FIRE PREMISES “VACANT OR UYOCCUPIED, Kopplekom V. Huffman, 1:2 id. 101. In Patrick v.
Where the owner of a dwelling, who after a tenaut has Leach, p. 538, it is said: “In a civil action the law
vacated the premises, mores his furniture into and does not require the jury to be satisfied beyond a reasonable doubt, as in criminal cases." The court
cleans up the house with an intention of making it his
resideuce, but during that time does not actually ocdid not err therefore in refusing to give the instruc
cupy it at night, subsequently leaves it temporarily on tiou. Sup. Ct. Neb., Nov. 18, 1881. Altschuler v. Algaza.
business, and puts a party in possession until his reOpinion by Maxwell, J. (21 N. W. Rep. 401.)
turn, the house cannot be considered as vacant or PRACTICE-ASSAULT WITH INTENT TO KILL-REVER
unoccupied,” within the meaning of a clause in the
policy providing that if the insured building shall “ be SAL-SECOND TRIAL FOR ASSAULT-CHALLENGE.- When
or become vacant or unoccupied” the policy shall be a party has been convicted of au assault with intent to kill, and on appeal such conviction has been reversed
void unless consent in writing is indorsed thereon, and on the ground that the evidence would not sustain
he will be entitled to recover for a loss occurring dursuch charge, he can only be tried a second time on the
ing such temporary absence. In contemplation of same information for the offense charged therein, and
law her occupation of the house would have been conif the court put him on trial for a simple assault, and
tinuous. Stupetski r. Translantic Fire Ins. Co., 43 restrict the number of his challenges of jurors to fire,
Mich. 373; S. C., 5 N. W. Rep. 401; ('ummings v. Aga conviction for the assault will be reversed, and the
ricultural Ins. Co., 67 N. Y. 260; Ilerrman v. Meraocused discharged. Sup. Ct. Mich., Nov. 20, 1881.
chants' Ins. ('0., 81 id. 181; Phoenix Ins. ('0.v. Tucker, 92 People v. Comstock. Opinion by Champlin, J. (21 N.
111.61; Dennison v.Phonix Ins. ('o., 52 Iowa, 457; S. C., W. Rep. 384.)
3 N. W. Rep. 500. The only question then is whether
the fact that for the few days she remained at home LARCENY EVIDENCE – PRISONER'S POSSESSION OF before starting on the business trip she did not sleep BURGLARS' TOOLS.—On a trial for larceny from a in the house or take her meals there should make any dwelling-house, it appeared that defendaut was ar difference. Under the circumstances we think not. rested in the vicinity of the locus delicti immediately The insured had taken possession of the house, as the after the commission of the larceny, under suspicious jury must have found, for the purposes of permanent circumstances tending to connect him with the crime. occupancy. She had moved in her household furniture