this defendant, on the 26th of January, 1887, | year, the time the premises were untenantable,. issued to plaintiff a policy of indemnity against and claimed that defendant was liable on its damage to her interest as lessee of the build-policy to her for a balance of $3,000, with inings, by fire, in the sum of $6,000. In the policy is this stipulation: "It being understood that this policy is to indemnify the assured for any loss accruing to her by reason of having to pay rent for the within described building [during] such time or times as the building may be untenantable by reason of fire or tires occurring during the continuance of this policy; loss not to be limited by date of expiration of the policy; it being understood that the sum insured is the annual rental of the property, and the amount of loss is to be computed on that basis." Peterson, the landlord, also took out in the Pennsylvania Fire Insurance Company a policy covering the term of the lease, indemnifying him against loss of rents by fire in the sum of $8,500, in which was this clause: It is understood and agreed that in case the above-named building, or any part thereof, shall be rendered untenantable by fire, this company shall be liable to the assured for the actual loss of rent ensuing therefrom, not exceeding the sum insured, which shall be taken as the yearly rent of the premises, and this company shall be liable only for such proportion of any loss as the sum hereby insured bears to the annual rent of the building; the assured agreeing to rebuild or repair said premises in as short a time as the nature of the case will permit. Loss to be computed from the date of the occurrence of said fire, and cease on said building being rendered tenantable. Note. In case the assured shall elect not to rebuild or repair said premises in as short a time as the nature of the case will admit, then the loss of rent shall be determined by the time which would have been required for such pur pose. Pennsylvania Fire Insurance Company. After the fire the property was unoccupied for any purpose until the 24th of July following, a period of six months, when plaintiff entered into an agreement with her landlord that he would within seven months erect a new and better building on the lots covered by the old buildings, and make it larger, by extending it over three adjoining lots. Further, plaintiff agreed that she would accept a lease of the new building for a term of five years at an annual rental of $17,000, payable monthly. There were further stipulations that nothing in the agreement was to affect plaintiff's liability for rent under the old lease until the completion of the new building, and that the entry of the landlord for the purpose of rebuilding was not to be deemed an eviction by him or a surrender by her. It was further stipulated that nothing in the agree ment was to affect the right of either on policies of insurance which each held for rent. After the fire this defendant denied any liability, except a proportionate one on loss of rent under both policies, which was, with interest, $3,096.50, and which it paid to plaintiff without prejudice to her alleged right to claim her entire loss. The Pennsylvania Company, although disclaiming all liability, paid the landlord $2,000 for the benefit of Mrs. Heller. The plaintiff paid the landlord the rent for one terest, payment of which being refused, she brought suit. The defendant filed an affidavit of defense averring that the agreement to rebuild was a collusive arrangement between the parties at the suggestion of the landlord's insurance company, by which that company was to escape any payment on account of the loss. The court below entered judgment for want of a sufficient affidavit of defense. On appeal this judgment was reversed, this court holding that the facts tending to show collusion would, if proved, not relieve the landlord's insurance company from payment of its proportion of the loss, and the evidence tending to show fraud was for the jury. This case is reported in 133 Pa. 152, 7 L. R. A. 411. When the record was remitted the defendant, demurrer to plaintiff's statement of facts, as instead of pleading and going to trial, filed a not being sufficient in law to warrant judg ment. The court below sustained the demur held that under the circumstances as averred So rer, and plaintiff appealed. This court, in an opinion by the chief justice (see 151 Pa. 101), by plaintiff, the averment of fraud in the attidavit having dropped out of the case, she was entitled to recover on her claim set out of record; that the facts neither constituted an eviction by the landlord, nor a rescission of the contract under which the plaintiff was answerable for rent, and for aught that appeared the transaction was a perfectly honest one. awarded. On the trial of the case in the court the judgment was reversed and a procedendo below, considerable evidence was given tending tween the parties and the insurance companies, to show correspondence and negotiations beprincipally with a view to adjustment without suit of their respective rights; but the court being of opinion that no available defense had been proved, at the close of the evidence directed a verdict for the plaintiff for $3,000 and interest. We now have this appeal, assigning six errors. It is unnecessary to discuss them in detail. When the case was last here Chief Justice Sterrett says, with this agreement before him: "It neither constituted an eviction by the landlord nor a rescission of the lease under which plaintiff was liable for the rent as to which she was insured by defendant company.' There is nothing new in the case now to affect the correctness of this conclusion. The parties in open court abandoned any averment of fraud in the making of this agreement. That being the case, defendant's liability remains according to its contract. That stipulates that it was to "indemnify the assured for any loss accruing to her by reason of having to pay rent for the within-described building [during] such time or times as the building may be untenantable by reason of fire." It was untenantable during the entire period covered by her claim, by reason of the fire. The occupation of the lot by the landlord for seven months, in rebuilding, in no reasonable construction of this clause rendered the premises tenantable, while the agreement with the landlord expressly stipulated her liability for rent was to continue during this period. Therefore what rent she paid was her loss, and this the defendant con tracted should be made good. Nor does the $2,000, leaving her still a loser for the year the fact that the landlord paid over to her $2,000 building was not tenantable. $500. As is well received by him from the Pennsylvania Com- said by the learned judge of the court below: pany affect her contract right against this de-Its [defendant's] burden has not been infendant. She received that from a source out-creased, nor has it been deprived of any right side of, and independent of, her contract for it possessed. indemnity, just as she might have received a gift of that amount from any friend who desired to aid her. Defendant lost nothing, and the $2,000 did not even reimburse her in full for her loss. She paid rent for unoccupied premises, $8.500. She claims from this defendant $6,000, less the $3,000 already paid her. She has received from her landlord The landlord and tenaut had a lawful right to make the agreement they did make, and, the risk and loss of the defendant company not having been increased thereby, it is liable for the amount due on its policy." The judgment is affirmed. อ. NEVADA SUPREME COURT. R. SCHWEISS, Petitioner, DISTRICT COURT OF FIRST JUDICIAL DISTRICT. complaint upon the grounds that it did not state facts sufficient to constitute a cause of action against him, and that the court had no jurisdiction of the offense charged, was overruled, and the case set for trial. Thereupon he filed his petition herein, setting out the above facts, and asking that the court be pro *1. A county is not a municipal corpo-hibited from proceeding further in the trial ration, in the full sense of the term. It is only a quasi corporation, and possesses such powers and is subjected to such liabilities only as are specially provided for by law. thereof. The defendant demurs upon the ground, among others, that the petition does not state facts sufficient to constitute a proper ground for the issuance of the writ. Mr. F. M. Huffaker, for petitioner: The legislature has complete control of the entire subject of counties, etc., except where limited by the Constitution. Hess v. Pegg, 7 Nev. 23. The legislature alone is to say what territory a municipal corporation shall occupy. 14 L. R. A. 755; Winbigler v. Los Angeles, 45 Re Madera Irrig. Dist. Bonds, 92 Cal. 296, Cal. 36; 2 Kent, Com. 275; 1 Dill. Mun. Corp. A county is a geographical subdivision of the state. 4. It is also a local and special act regu-$10, 37, 96. (June 23, 1896.) PETITION for a writ of prohibition to pre vent respondent from taking jurisdiction of a prosecution against petitioner for the alleged illegal keeping of a saloon where intoxicating liquors were sold. Refused. Statement by Bigelow, J.: Original application for a writ of 'prohibi tion. The petitioner was convicted in a justice's court of the offense of keeping a saloon in the city of Virginia, wherein liquors were sold by the glass, without having obtained the license therefor required] by an ordinance of said city. From this conviction he appealed to the district court of the first judicial district, Storey County, where his demurrer to the "Headnotes by BIGELOW, Ch. J. NOTE. For the incorporation of a county as a municipality, see also State, Walker, v. Bus (Mo.) 33 State, Beach, v. Finn, 4 Mo. App. 350; Washer v. Bullitt County, 110 U. S. 564, 28 L. ed. 251; Vincent v. Lincoln, 30 Fed. Rep. 749; Faulkner v. Hyman, 142 Mass. 54. When the act of 1895 leaves the business of Storey county to be as heretofore in all respects and the system of county government untouched, how can it be claimed that an act creating a municipal corporation of Storey county is either a regulation of county business, or an establishment of a system of county government? The legislature, by the act of 1895, simply merged said city and town business into the county business, which the legislature had a perfect right to do. State, Rosenstock, v. Swift, 11 Nev. 128. By the act of 1881 there were created and placed under the control of the Storey county board of commissioners a Virginia city fund, derived from taxation of property within the L. R. A. 616; and Kahn v. Sutro (Cal.) 33 L. R. A. 620. 1896. former corporate limits of said city, and similarly a Gold Hill fund, and because the act of 1895 turns these funds over to Storey county, it has been claimed the act is invalid. The legislature is sole judge in such matters. 1 Dill. Mun. Corp. $ 34, 35; State v. Savannah, R. M. Charlt. (Ga.) 250; Police Comrs. v. Louisville, 3 Bush, 597; Diamond v. Cain, 21 La. Ann. 309; State, Belden, v. Leovy, 21 La. Ann. 538. If the legislature could by general law incorporate all the counties of the state, then it would follow, by special act, any county can be made a municipality. State, Clarke, v. Irwin, 5 Nev. 122. ent: and varied powers.-among them, that of having a common seal; of holding and enjoying both real and personal property, either within or without the municipality, and the same to buy, sell, and mortgage; to receive bequests, gifts, and donations of property, either in fee simple, or in trust for charitable or other purposes, with power to manage, sell, lease, or otherwise dispose of the same in accordance with the terms of the trust. Section 2 provides that all buildings, lands, and property, all rights of property and rights of action, all moneys, revenues, and incomes, belonging or appertaining to Storey county (evidently referring to the county as it now exists), to the city of Virginia, or the town of Gold Hill, shall be vested in Storey county; meaning, by the name as now used, the new municipality. Section 3, that the new municipality shall succeed to all property rights, all books, records, etc., of Storey county, VirInstead of having a county government sim-ginia City, or Gold Hill, and shall become ilar to other county governments of the state subject to all liabilities of those organizations. we have a "municipal corporation" known as Section 4, that Storey county (evidently the municipality) may sue for and recover all "Storey county." property, etc., belonging to either said county, city, or town, and that all existing suits, actions, and proceedings to which "said county," Section 7, or the city, or town, is a party, are to be continued by or against "said county." that all county moneys are to be kept in one fund, to be known as the "County General Fund." Section 10, that the board of commissioners may levy a tax for county purposes, not exceeding the sum of $3.50 on each $100 valuation of the property therein. The act of March 15, 1895 (Nev. Stat. 1895, p. 73, chap. 80), is unconstitutional and void, in so far as it in any way affects the action sought to be restrained. Counties are quasi corporations" in contradistinction to "municipal corporations." Dill. Mun. Corp. 23; People, Graves, v. Orange County, 81 Cal. 489; 15 Am. & Eng. Enc. Law, pp. 952, 953, and notes; Hamilton County Comrs. v. Mighels, (1857) 7 Ohio St. 109; Stermer v. La Plata County Comrs. 5 Colo. App. 379. The legislature has the right to say all counties shall be municipal corporations, but it cannot say one particular county shall be a municipal corporation. State, Perry, v. Arrington, 18 Nev. 412. No law specifying a different governmental authority for one county from that of the other counties of the state, and no local or special law regulating county or township business, can be passed. A comparison of this act with the existing laws governing all the other counties in the state seems to demonstrate that it is in conflict with § 20 of art. 4 of the Constitution, which forbids local and special laws regulating county business; with 25 of the same article, which requires the legislature to establish a system of State, Atty. Gen, v. Boyd, 19 Nev. 43; Wil-county governments which shall be uniform liams v. Bidleman, 7 Nev. 68. The subject of the incorporation of a county and provision for its government has not, in the nature of the thing, any proper or neces sary connection with the matter of the creation, dissolution, government, or existence of the cities or towns within that county. State, Norcross, v. Washoe County Comrs. (Nev.) 41 Pac. 145; State v. Humboldt County Comrs. 21 Nev. 235. The lower courts may pass upon the constitutionality of the statute of 1895. Meagher v. Storey County, 5 Nev. 244; State v. Trolson, 21 Nev. 419. Bigelow, Ch. J., delivered the opinion of the court: The question involved in this case is the throughout the state. Clearly, a county is And again, in § 6, the same author says: tions do not usually possess corporate powers | Without property, without records, without under special charters; but they exist under rights in anything, either in possession or in general laws of the state, which apportion the action, its bones are marrowless, and it has territory of the state into political divisions for nothing in common with the living organizaconvenience of government, and require of the tions in the other counties. It is no answer to people residing within those divisions the per- say that the new municipal corporation has formance of certain public duties as a part of taken its place, and has all the powers, duties, the machinery of the state, and, in order that and liabilities that the county formerly had; they may be able to perform these duties, vest for it is an entirely different system of governthem with certain corporate powers." A ment, whereas the Constitution requires them county is certainly very far from being the to be the same. Nor is this true merely in complete corporation that is created by the act matters of form. The municipality has differin question, with all, and probably more than ent and additional powers from those possessed all, the powers that can be vested in a munici by the counties. No county has a common pal corporation. This, of itself, is sufficient seal; nor can it hold property outside its to destroy the uniformity that the Constitution boundaries, or even inside, except for a few requires to exist in the several county govern- purposes, nor purchase, sell, or mortgage propments. In Singleton v. Eureka County, 22 erty generally, nor hold and manage it in Nev. we had occasion to consider this trust for any purpose, while the municipality clause of the Constitution at some length, and of Storey county is authorized to so hold it for there concluded that it meant that such gov- all purposes. Other counties must have at ernment must, in all essential particulars, be least three funds for county purposes,—a genalike. State, Atty. Gen., v. Boyd, 19 Nev. 43, eral fund, an indigent fund, and a contingent is to the same effect. But Storey county, as fund (Gen. Stat. § 2008), but this municipality created into a municipal corporation by this is to have but one. Other counties can under act, is not like the other counties, either in no circumstances levy a tax for county purform or substance, and therefore the act is in poses of more than $2 upon each $100 of propconflict with the Constitution. With the law erty valuation (Stat. 1891, p. 22), while the in question in force, it would be an interesting new Storey county can levy $3.50. In fact, study to determine just what position Storey were it not that the municipality has the same county that used to be, the city of Virginia, name and the same boundaries as Storey and the town of Gold Hill would be in. county, it would be fully as difficult to point While there is no provision for their disestab- out wherein the two governments are uniform lishment, there can be little doubt that the as that wherein they differ. In addition, as framers of the law intended that they should the act is confined to Storey county, it is both practically cease to exist. If not totally de- local and special; and, as it unquestionably stroyed, it was certainly intended that the regulates the business of that county, it is also breath of life should be taken from them. invalid for that reason. property, all rights of action, all revenues and Writ refused. incomes, all books, records, claims, demands, etc., theretofore belonging to Storey county, are transferred to the new municipality. | All Bonnifield and Belknap, JJ., concur. NEW MEXICO SUPREME COURT. Re SPITZ BROTHERS' ASSIGNMENT., of Spitz Bros., a copartnership composed of Individual partners cannot claim their statutory exemption out of the partnership property in case of insolvency, in the absence of a statute expressly authorizing them to do so. (September 1, 1896.) Edward Spitz and Berthold Spitz, made an assignment for the benefit of their creditors to M. W. Flourney, as assignee. The firm of Spitz Bros. were, and had been for some time previous to the date of the assignment, doing a in Bernalillo county, and at Cerrillos, in Santa general mercantile business at Albuquerque, Fé county, New Mexico. The deed of assignment is in the usual and proper form, and conveyed to said Flourney, as assignee, in trust, certain tracts and parcels of real estate (describing the same), and also all the goods, chattels, and effects and property of every kind-real, personal, and mixed-of said firm of Spitz Brothers, and the said Edward Spitz, and the said Berthold Spitz, together with all claims and demands whatsoever and wheresoever, including choses in action, suits now On the 8th day of December, 1894, the firm pending, and judgments, except, however, so APPEAL by petitioners from a judgment of the District Court for Bernalillo County refusing to recognize their right to exemptions in certain partnership property which they had assigned for the benefit of creditors. Affirmed. Statement by Laughlin, J.: NOTE. As to the assumption by a partnership | Re Edwards & Wigginton's Estate (Mo.) 29 L. R. A of the individual debts of the partners, see note to 681. much as may, under the laws of the territory Messrs. Neill B. Field and Felix H. Lester, for appellants: Exemption laws should be construed liberally in favor of the debtor. Montague v. Richardson, 24 Conn. 338, 63 Am. Dec. 173; Carpenter v. Harrington, 25 Wend. 370, 37 Am. Dec. 239; Favers v. Glass, 22 Ala. 621, 58 Am. Dec. 272; Rockwell v. Hubbell, 2 Dougl. (Mich.) 197, 45 Am. Dec. 252; Thompson, Homesteads & Exemptions, $ 5, and cases cited. 219 and note; Blanchard v. Paschal, 68 Ga. 32, 45 Am. Rep. 474; Spade v. Bruner, 72 Pa. 57; Servanti v. Lusk, 43 Cal. 238: O'Gorham v. Fink, 57 Wis. 649, 46 Am. Rep. 58; Russell v. Lennon, 39 Wis. 570, 20 Am. Rep. 60. The members of a partnership are the owners of its assets, and may, with the consent of each other, apply the partnership assets to the payment of individual debts as against partnership creditors. Huiskamp v. Moline Wagon Co. 121 U. S. 310, 30 L. ed. 971. It was not incumbent upon the assignors to make any selection of exempt property, or to claim the exemption at any particular time. Chipman v. Kellogg, 60 Mich. 438; Brooks v. Nichols, 17 Mich. 38. Messrs. R. W. D. Bryan and A. B. McMillen, for appellee: The exemption is of property to be selected. Until selected it was subject to levy and sale. Carpenter v. Warner, 38 Ohio St. 416. The joint property is deemed a trust fund primarily to be applied to the discharge of the partnership debts against all persons not having a higher equity. Story, Eq. Jur. § 1253; Hollins v. Brierfield Coal & I. Co. 150 U. S. 385, 37 L. ed. 1117; Fourth Nat. Bank v. New Orleans & C. R. Co. 78 U. S. 11 Wall. 624, 20 L. ed. 82; United States v. Hack, 33 U. S. 8 Pet. 271, 8 L. ed. 941; Murrill v. Neill, 49 U. S. 8 How. 414, 12 L. ed. 1135. If taxes due from individuals could not be enforced against the assets of the insolvent firm, neither could their individual exemptions. State, Billingsley, v. Spencer, 64 Mo. 355, 27 Am. Rep. 244; Re Corbett, 5 Sawy. 206; 2 Bates, Partn. § 1131. The circuit and district courts of the United States and the supreme courts of almost every state in the United States have passed upon the question and expressly denied the right of a partner to exemptions out of the partnership assets. Giovanni v. First Nat. Bank, 55 Ala. 305, 28 Am. Rep. 723; Giovanni v. First Nat. Bank, 51 Ala. 176; Terrell v. Hurst, 76 Ala. 588; Levy v. Williams, 79 Ala. 171; Schlapback v. Long, 90 Ala. 525; Aiken v. Steiner, 98 Ala. 355; Richardson v. Adler, 46 Ark. 43; Bishop v. Hubbard, 23 Cal. 514, 83 Am. Dec. 132; Kingsley v. Kingsley, 39 Cal. 665; Cowan v. Their Creditors, 77 Cal. 403; McCrimmon v. Linton, 4 Colo. App. 420; Bates v. Callender, 3 Dak. 256; State, Peck, v. Bowden, 18 Fla. 17; Trowbridge v. Cross, 117 Ill. 109; Love v. Blair, 72 Ind. 281; Smith v. Harris, 76 Ind. 104; State, Talbott, v. Emmons, 99 Ind. 452; Ex parte Hopkins, 104 Ind. 157; Drake v. Moore, 66 Iowa, 58; Hoyt v. Hoyt, 69 Iowa, 174; Guptil v. Mc Fee, 9 Kan. 30; Stauffer's Succession, 21 La. Ann. 520; White v. Heffner, 30 La. Ann. 1280, 31 Am. Rep. 238; Thurlow v. Warren, 82 Me. 164: Pond v. Kimball, 101 Mass. 105; Holmes v. Winchester, 138 Mass. 542; Baker v. Sheehan, 29 Minn. 235; Prosser v. Hartley, 35 Minn. 340; Robertshaw Stewart v. Brown, 37 N. Y. 350, 93 Am. v. Hanway, 52 Miss. 713; Woolridge v. Irving, Dec. 578, and note; Skinner v. Shannon, 44 23 Fed. Rep. 677; State, Billingsley, v. SpenMich. 86, 38 Am. Rep. 232; McCoy v. Brennan, cer, 64 Mo. 355, 27 Am. Rep. 244; Julian v. 61 Mich. 362; Waite v. Mathews, 50 Mich. 392; Wrightsman, 73 Mo. 569; Lindley v. Davis, 6 Gilman v. Williams, 7 Wis. 329, 76 Am. Dec. | Mont. 453; People, Till, v. Roy, 3 Neb. 261; Wise Property owned by a debtor as a member of a partnership is alike within the letter and spirit of the exemption laws. The language of the act should be construed in harmony with its humane and remedial purpose. Its design was to shield the poor and not to strip them. The interest it assumes to protect is that belonging to the debtor, be it more or less. Whatever it be, within the limitation of the statute the debtor's interest is exempt, in view of his own necessity and of the probable destitution to which its loss might reduce the family depending on him for support. |