had attempted to interfere with any of the rights of complainant in the use of the chartered turupike such interference would not have been tolerated. (2) That the State imposes a tax on the privilege of deriving profit from the use of property in a certain manner does not render such use public, but rather recognizes the fact that the property is private, and subject to the control of its owner. Cir. Ct., E. D. Tenn. Sharp v. Whiteside. Opinion by Key, J.

INSOLVENCY--STATE LAW--RIGHTS OF CREDITOR RESI DENT OF SISTER STATE--FEDERAL JURISDICTION.-The insolvent laws of Louisiana do not, by their declaratory force solely, without any other investiture of title, the possession remaining in the debtor, remove the property of the debtor beyond the reach of a creditor who is a resident of another State, and who proceeds in the Circuit Court. In the case presented here the plaintiff is in possession, and both as respects title and possession his right is absolute but for a right, which if it exists at all, comes from the inherent force of a State insolvent law, which, unaccompanied by possession, is, as to this plaintiff, like an extra-territorial bankrupt or insolvent law, and according to the summary of authorities in Booth v. Clark, 17 How. 322 (decided at the same term with the case of Horn v. Bank, 17 How. 159), gives to the foreign assignee no title as against local creditors who attach. The Constitution of the United States operates within as well as without the State which enacts insolvent laws. No State laws in conflict with it can be rules of property. The doctrine of comity between the Federal and State courts has been constantly extending in recognition and clear and rigid enforcement; but the rules of law, as expounded in Ogden v. Saunders, 12 Wheat. 213, are, as it seems to me, unchanged. In accordance with that case, in this forum at least, the possession of a foreign citizen under an attachment must prevail against the syndic who claims merely by the declaratory force of a State insolvent law. A mere declaration in a statute, which is by the settled adjudications inoperative against a party domiciled as is the plaintiff, cannot oust this court of administration of the property, which is, consistently with all the rules of judicial comity, in its possession. Cir. Ct., E. D. La. Mississippi Mills Co. v. Ranlett. Opinion by Billings, J.


CONVERSION-VENDEE OF LAND HARVESTING WHEAT WITH KNOWLEDGE OF TITLE IN THIRD PERSON.-(1) The plaintiff herein sowed wheat in certain lands under an agreement with the guardian of the estate of which the lands were a part. This agreement the guardian had a legal right to make. Campan v. Shaw, 15 Mich. 226; Kinney v. Harrett, 46 id. 89; 8 N. W. Rep. 708. (2) A party who purchased the land after the wheat was planted, and with knowledge of the agreement, carried the wheat off as soon as it was harvested and locked it up in his barn. Held, that the agreement was a valid one, and that the taking of the wheat amounted to a conversion thereof. Wheldon v. Lytle. Opinion by Champlin, J. [Decided March 6, 1884.]

MANDAMUS-ACT PROCEEDINGS.-Mandamus will lie to compel the recorder of a village to sell property for delinquent taxes where the order of the common council is regular upon its face. The duty is ministerial, and his business is to proceed as ordered, and to let the individual taxpayers raise their own objections and question the legality of the assessments. There may be none to object however irregular the proceedings, and this mandamus does not affect the right of the taxpayers to object on


any ground they see fit. We have decided heretofore that certiorari is not a proper remedy in this class of cases; and all the objections to allowing tax proceedings to be reviewed on certiorari are applicable here, and we therefore decline to consider the regularity of the tax proceedings on their motion. See Whitbeck v. Hudson, 50 Mich. 86; 14 N. W. Rep. 708; Tucker v. Parker, 50 Mich. 5; 14 N. W. Rep. 676. Hudson, etc., v. Whitney. Opinion by Sherwood, J. [Decided March 6, 1884.]

INFANCY -MINOR CONVEYS-ATTAINING FULL AGE GIVES DEED TO ANOTHER-SECOND GRANTEE MAY MAINTAIN EJECTMENT-RE-ENTRY UNNECESSARY.-Defendant claimed title under deed given by an infant who, arriving at majority, conveyed to plaintiff. Held, that the deed of an infant is voidable, and must be avoided before the action will lie; but when properly avoided no other thing is necessary to be done before bringing suit. The necessity for the infant to make entry before giving the deed of avoidance, or before bringing suit, does not exist in this State. Title by descent, and our mode of transferring title by deed, are regulated by statute. The old common-law doctrine of feoffment with livery of seisin does not constitute any part of our law of conveyancing. Our registry laws supply their place, and furnish the notoriety of transfer intended to be given by that ancient mode of passing title; and the making and recording of the second deed in this case was entirely sufficient. 2 How. Stat., ch. 216, §§ 5652, 5657; 1 Pars. Cont. (3d ed.), pp. 373, 374; Eagle Fire Co. v. Lent, 6 Paige, 635; Cressenger v. Welch, 15 Ohio, 192; Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 id. 124; Hoyle v. Stowe, 2 Dev. & B. Law, 320; Lessee of Tucker v. Moreland, 10 Pet. 58; Bing. Inf. 60; Dixon v. Merritt, 21 Minn. 196; McGan v. Marshall, 7 Humph, 121; Peterson v. Laik, 24 Mo. 541; Lessee of Drake v. Ramsay, 5 Ohio, 252; Hastings v. Dollarhide, 24 Cal. 195; Pitcher v. Laycock, 7 Ind. 398; Laws of 1881, p. 385; Crane v. Rieder, 21 Mich. 82; Prout v. Wiley, 28 id. 164. This record fails to show any equities existing which required action on the part of the minor after she arrived at age, or her grantee, to make notice necessary before bringing suit. We find nothing in the case showing the plaintiff in any way estopped from bringing his suit. Haynes v. Bennett. Opinion by Sherwood, J. (See 30 Eng. R. 618.-ED.) [Decided March 6, 1884.]


EQUITY-ADEQUATE REMEDY AT LAW-IRREGULAR JUDGMENT.-This is a complaint to enjoin the sale of the lands of the plaintiff by the defendant, as sheriff, upon two executions, issued upon two pretended judgments against her, which she alleges are no judgments, on the grounds, as to one, that it had not been properly docketed, and as to the other, that there were no parties to it. This appeal is taken from an order dissolving a preliminary injunction which had been issued upon the complaint. All possible and adequate remedies which may be obtained in one suit must be sought in that suit rather than by another suit, either at law or in equity. This is an elementary principle. Where there is an adequate remedy at law courts of equity will not take jurisdiction is another elementary principle. Both of these principles are violated in this action. In Thomas v. West, 17 N. W. Rep. 684, Mr. Justice Taylor said: "Where a court of equity proceeds to set aside a judgment at law it proceeds upon equitable considerations only. If the judgment rendered is not inequitable as between the parties, no matter how irregular or void the same may be, a court of equity will

not interfere, but will leave the defendant to such remedies as a court of law can give him to avoid the effect thereof," citing Stokes v. Knorr, 11 Wis. 389; Ableman v. Roth, 12 id. 81-90; Merritt v. Baldwin, 6 id. 439; Wright v. Eaton, 7 id. 595; McIndoe v. Hazelton, 19 id. 396; Barber v. Rukeyser, 39 id. 590; Jilsen v. Stebbins, 41 id. 235; Hiles v. Mosher, 44 id. 601, and other cases. Wilkinson v. Rewey. Opinion by Orton, J. (See 4 U. S. Sup. Ct. 232.-ED.) [Decided Feb. 19, 1884.]

INSANITY-RETURN TO, AFTER LUCID INTERVALBURDEN OF PROOF.-Lunacy being once established, the burden is on the party claiming through some act of the lunatic to show that it was done in a lucid interval. A return to sanity being proved, the burden is on the party who shows that he has again become insane. Wright v. Jackson. Opinion by Lyon, J. [Decided Feb. 19, 1884.]


BOND FOR FAITHFUL PERFORMANCE DAMAGES INTEREST ON PENALTY.-(1) Where an additional bond is given as further security for a guardian's performance of his trust, the surety thereon is liable for the failure of such guardian to account for money received by him both before and after the execution of the bond, unless it affirmatively appear that a conversion of it took place before the surety became bound; for such conversion he would not be liable. United States v. Giles, 9 Cranch, 215-237; United States v. Linn, 1 How. 104-113; Farrar v. United States, 5 Pet. 373-389; United States v. Boyd, 15 id. 187; Vivian v.Otis, 24 Wis. 250; State v. Hood, 7 Blatchf. 127; Rochester v. Randall, 105 Mass. 295; distinguished by Myers v. United States, 1 McL. 493. (2) The evidence clearly established the fact that the amount due from the principal in the bond to the respondents at the time of filing their claims in the county court exceeded the penalty of the bond. The only question is, can the obligee in a penal bond recover in an action against the surety any amount beyond the penalty? We think the authorities in this country establish the doctrine that when the damages resulting from the breach or breaches of the bond exceed the penalty, interest on the amount of the penalty may be recovered from the time of the breach in excess of the penalty. This rule must be limited to cases where interest is recoverable against the principal upon the damages resulting from the breach of the condition of the bond. United States v. Arnold, 1 Gall. (U. S. C. C.) 348-360; Warner v. Thurlo, 15 Mass. 154; Harris v. Clapp, 1 id. 308; Carter v. Thorn, 18 B. Mon. 613; Brainard v. Jones, 18 N. Y. 35; Long's Adm'r v. Long, 16 N. J. Eq. 59; 2 Suth. Dam. 15, note 1, cases cited; 2 Sedg. Dam. (7th ed.) 262, note a, and cases cited; State v. Hoarey, 44 Wis. 615-621. The cases are not entirely harmonious as to the date from which interest should be computed upon the penalty. The case cited from New York holds that interest may be recovered from the date of the breach of the bond, if the damages then equal or exceed the penalty; and in Massachusetts it is held that interest is recoverable from the date of the commencement of the action. We need not determine which of these rules should be followed, or whether the rule in equity should be followed which gives damages by way of interest on the penalty when the plaintiff is unjustly delayed in his recovery by vexatious proceedings as was held in Grant v. Grant, 3 Sim. 340; see cases cited on page 355, as the allowance of interest in these cases comes within all the rules above stated. Clark v. Wilkinson. Opinion by Taylor, J.

[Decided Jan. 19, 1884.]



money paid for stock of a corporation at half its value, being in violation of section 1753 of the Revised Statutes, held, that plaintiff was not entitled to recover. Being void by statute, neither party could maintain an action founded upon such contract to enforce the same, nor could one party recover damages for the other for a refusal to perform it on his part. This has been so often determined in this and in other courts that it needs no further discussion. Smith v. Finch, 8 Wis. 245; Blanchard v. McDougal, 6 id. 167; Swartzer v. Gillett, 2 Pin. 238, 239; Moore v. Kendall, id. 99; Brandeis v. Neustadtl, 13 Wis. 153; Knoll v. Harvey, 19 id. 99; Tiernan v.Gibney,24 id.190; Plank R. Co. v. Plank R. Co., 7 id. 59; Melchoir v. McCarty, 31 id. 252; Troewert v. Decker, 51 id. 46; S. C., 8 N. W. Rep. 26; Ins. Co. v. Harvey, 11 Wis. 394; De Forbes v. Railroad Co., 52 id. 320; S. C., 9 N. W. Rep. 17; In re Comstock, 3 Sawy. 218; Bank v. Merrick, 14 Mass. 324; Russell v. De Grand, 15 id. 37; Wheeler v. Russell, 17 id. 280; White v. Bank, 22 Pick. 181; Belding v. Pitkin, 2 Caines, 149; Shiffner v. Gordon, 12 East, 304; Noel v. Drake, 28 Kans. 265; Bank of U. S. v. Owens, 2 Pet. 538; Harris v. Runnells, 12 How. 83; William v. Cheney, 3 Gray, 222; Roche v. Ladd, 1 Allen, 441; Insurance Co. v. Pursel, 10 id 232; Insurance Co. v. Slaughter, 20 Ind. 520; Insurance Co. v. Rosenthal, 55 Ill. 90. Admitting this to be the law, the learned counsel for the respondent contends that it does not bar his right to recover in this action. He claims he is not seeking to enforce the illegal and void contract, but repudiates it, and claims the right to recover what he has paid to the corporation upon such void contract. This presents the real question in the case. The respondent and the company are in pari delicto, both violators of the law, and no action in favor of either which grows directly out of the illegal contract can be maintained. It does not follow that because a contract is void money paid uuder it can be recovered back by the payor in all cases. The cases cited by the learned counsel for the respondent, in which the court has held that money paid upon a void contract may be recovered back by the payor, are cases either where the contract itself is not prohibited by law, but is declared to be void because not made or evidenced in the manner prescribed by law, or where the contract is declared void by law as to one party in order to protect the other against injustice and oppression. Brandeis v. Neustadtl, 13 Wis. 158; Follenson v. Gunderson, 1 id. 113; and Thomas v. Sowards, 25 id. 631, are cases of the first class; Wood v. Lake, 13 id. 84; Gill v. Rice, id. 549; Dole v. Northrop, 19 id. 249; Lee v. Peckham, 17 id. 394; Bank v. Plankington, 27 id. 177, and many others that might be cited are cases of the second class arising under the usury laws of this State. In the last case cited ths late Chief Justice Dixon says: "It is a familiar doctrine or rule of construction with respect to these laws, supposed to be enacted to protect the weak and necessitous from being overreached and oppressed by the powerful and rich, that both parties are not particeps criminis, but only the lender can be regarded as the oppressor, and he alone is within the pale of the law. All the penalties of the law are enacted against him, and he alone can be guilty of a violation of it. * * ** Hence the borrower, whatever his knowledge or intention may be, is always regarded as innocent." The following cases in this court would seem to be conclusive against the plaintiff's right to recover: Moore v. Kendall, 2 Pin. 99. In this early case it was held that a sale of property on Sunday was a violation of law, and yet, when the sale and delivery were made on that day neither party could rescind the contract and recover back the property or purchase money. Swartzer v. Gillett, 2 Pin. 238. In this case the court refused to interfere to set aside a conveyance of real estate, which was made by the

plaintiff to the defendant to compound a felony. Melchoir v. McCarty, 31 Wis. 252. In this case the plaintiff brought his action to recover for liquor sold without a license; and it was held that the contract was illegal and no recovery could be had. Morse v. Ryan, 26 Wis. 262; Hill v. Sherwood, 3 id. 343; Walsh v. Blatchley, 6 id. 422; Froewert v. Decker, 51 id. 46; S. C., 8 N. W. Rep.26; Insurance Co. v. Harvey, 11 Wis. 394; Miller v. Larson, 19 id. 463; John v. Larson, 28 id. 604; Plauk R. Co. v. Plank R. Co., 7 id. 59. In Melchoir v. McCarty, Justice Lyon, in the opinion of the court, says: "The general rule of law is that all contracts which are repugnant to justice or founded upon any immoral consideration, or which are against the general policy of the common law, or contrary to the provisions of any statute, are void; and that if a party claiming a right to recover a debt is obliged to trace his title or right to the death through any such illegal contract, he cannot recover, because he cannot be allowed to prove the illegal contract as the foundation for his right of recovery. It is quite immaterial whether such illegal contract be malum in se or only malum prohibitum. In either case the maxim ex turpi causa non oritur actio is applicable; and a contract in violation of a statute is void, although the statute fails to provide expressly that contracts made in violation of its provisions shall not be valid. It is sufficient that it is prohibited, and its invalidity follows as a legal consequence." Packet Co. v. Shard, 37 Wis. 655, distinguished. Clarke v. Lincoln Lumber Co. Opinion by Taylor, J.

[Decided Feb. 19, 1884.]


PARTIES PLAINTIFF.-The defendant employed a law firm to render legal service, supposing that a former member of the firm was still connected with it, and the name of such former member was signed to the summons and complaint. Before the services sued for were rendered the defendant was notified that the old firm had been dissolved, and that the retiring member's name had been used without authority; he was thereupon specially retained by the defendant. Two bills were rendered the defendant; one in the favor of the remaining members of the old firm, and one in favor of the member who had retired; the defendant paid the first, but the latter he declined to pay. Held, that he was liable for the second bill also. Although the contract made with the retired partner was for his services alone, still he was at the time in the partnership, and the action was properly brought in the partnership name. Jackson v. Bohoman. Opinion by Cassoday, J.

[Decided Jan. 29, 1884.]


[ocr errors]

the legal title is in the plaintiff, and he has not attempted to divert it from the use of the church. We are not called upon to more accurately define the rights of the parties in respect to the property. When therefore the defendants interfered with it they were guilty of a trespass. Heiss v. Vosburg. Opinion by Cole, C. J.

[Decided Feb, 19, 1884.]


PURSUED.—The statute authorizing the construction
of such drains or ditches as may be necessary for the
improvement or preservation of highways, even
though it may become necessary in doing so to go
upon land in the vicinity, and not adjacent to such
highway, is the taking of such lands for a public use
within the meaning of the Constitution, but such acts
are not unconstitutional, merely because they do not
provide for actual payment in advance of the taking,
since the taxable property of the town or municipality
constitutes a pledge or fund to which such owner may
resort for payment in the manner prescribed by stat-
ute. Smeaton v. Martin, 57 Wis. 364; 15 N. W. Rep.
403, and cases there cited. See also Mercer v. Mc-
Williams, 1 Wright (Ohio), 132; Bates v. Cooper, 5
Ohio, 118; McCormick v. President, 1 Cart. (Ind.) 52;
Loweree v. Newark, 8 N. J. L. 51; Smith v. Helmer, 7
Barb. 426. (2) The necessity for taking lands for pub-
lic use is to be determined by the Legislature, which
may, in its discretion, delegate the exercise of such
power to town supervisors. Their determination as
to whether the use is a public one is not conclusive,
yet when it is a public one, the determination as to
the necessity of the taking is conclusive upon the
courts. (3) A stream not navigable, stands on a com-
mon footing with other private property so far as the
right of eminent domain is concerned. If the public
good requires it, all kinds of property are alike subject
to it, as well that which is held under it as that which
is not."
New York, etc., R. Co. v. Boston, etc., R.
Co., 36 Conn. 198, and cases there cited. In the case
of a navigable stream the bed of the river is a public
highway of the State, and within its absolute control,
subject only to the rights of commerce. Green v.
Swift, supra; Black River, etc., Co. v. La Crosse, etc,
R. Co., 54 Wis. 659; S. C., 11 N. W. Rep. 443. But the
stream in question is not navigable. This being so, it
stands on a common footing with other private prop
erty, so far as the right of eminent domain is con-
cerned. Thus in Glover v. Powell, 10 N. J. Eq. 211, it
was "held that the Legislature had the right to au-
thorize the obstruction of the creek, there being noth-
ing in the case to show that its navigation was de-
manded by the public interest." Certainly, all prop-

TRESPASSTEARING DOWN CHURCHBISHOP OWNER. Where a Catholic bishop holds church property is held upon the implied condition that it may be erty by a deed in fee-simple, though he may not, under the church regulations, dispose of the same, and appropriate the proceeds, still he has such a sole ownership in the property that the possession is his as a matter of law, and the congregation who voluntarily contributed to build the church have no right to tear it down without his consent, and if they do they are simply wrong-doers. That the old church edifice was out of repair and entirely unfit for use; that a majority of the congregation desired to erect a new building on the old site, and they were executing their wishes in what they did, affords no legal justification for tearing down the building against the protests of the plaintiff. For neither they nor the congregation had any such interest in or right to the property as would warrant the exercise of any such acts of ownershover it. It is sufficient for this case to say that

reclaimed by the government, in the manner and
upon the terms prescribed by law, whenever the pub-
lic necessities so demand. See also Hazen v. Essex,
12 Cush. 476, 477; Trustees v. Dennett, 5 T. & C. 207;
Central v. Lowell, 4 Gray, 474. (4) Where lands are
taken for public use the owner should pursue the
statutory remedy, and an action for tort will not lie
against those who make the improvement under a
power conferred by statute. Sprague v. Worcester, 13
Gray, 139; Bartlett v. Crozier, 17 Johns. 447. In that
case Chancellor Kent said: "Such a limited and pre-
carious duty in the reparation of bridges cannot, as I
apprehend, afford ground for a private action against
the overseer from any and every person who may hap-
pen to be injured by a bad bridge within his district."
Smith v. Gould. Opinion by Cassoday, J.
[Decided Feb. 19, 1884.]


JUNE TERM, 1883.



LAW.—(1) Courts of equity never decree the specific performance of a contract when the decree will be a vain and imperfect one. Tobey v. Bristol, 3 Story, 800. So a contract to assign an interest in letters patent for an invention will not be specifically enforced on bill filed only a short time before the patent expires. (2) A court of equity has no jurisdiction of a bill seeking solely to recover damages for a breach of a contract to perform services, and to assign an interest in letters patent, when there is no partnership account to be adjusted, and the contract is a personal one between the parties, not as partners, but as individuals. The remedy in such case is complete and adequate at law. For the breach of such covenants and agreements the remedy is an action of covenant where the instrument is under seal, and where it is not, assumpsit. Parsons on Part. 285, note a; Collyer on Part. (Perk. ed.) § 245. See also Doyle v. Bailey, 75 Ill. 418; Story's Eq. Jur., § 294. Werden v. Graham. Opiniou by Scholfield, J. JUDICIAL SALE-SETTING ASIDE FOR FRAUD-REDEMPTION.-Land was sold on execution at a grossly inadequate price, and bid in by one who was the family physician of the debtor, and regarded as an intimate friend and adviser, the debtor being an aged illiterate person, almost wholly ignorant of his legal rights. The purchaser promised to give the debtor all the time he wanted to redeem, telling him he had fifteen months in which to redeem, and by artifice and misrepresentation lulled him into a sense of security until the time of redemption had passed, with the knowledge and participation of the assignee of the certificate of purchase, to whom a sheriff's deed .was made. It was held that the debtor, under these circumstances, was entitled, on bill in equity, to redeem from the sale, and have the sheriff's deed set aside as a cloud on his title. Palmer v. Douglass. Opinion by Mulkey, J.

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


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

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




[Decided May, 1883.]

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

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

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

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


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

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



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

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



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

Judgment affirmed, and appeal from the order dismissed without costs to either party in this courtJames M. Smith, receiver, etc., respondent, v. Henry M. Platt, executor, etc., appellant. -Order affirmed with costs-George Whitney et al., appellants, v. State, respondent.-Judgment affirmed with costs-Lucius B. Warner, assignee, etc., appellant, v. Edward S. Jaffray et al., respondents.- Judgment affirmed with

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



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

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


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

« ForrigeFortsett »