the policy delivered to him and the premium paid by him within a day or two from the date of the policy. The first blank remained at the place of Hotaling & Co., and the second with Friedenrich, by whom it was kept to serve as a guide for similar cases, he having no experience in the business.

plaintiff was the owner of the property unqualifiedly and this is denied by the answer. But in the application for the policy the plaintiff stated the nature of his interest in The property correctly, and on the argument it was admitted that this was an insurable interest. Of this there can be no doubt upon authority. (Wood on Fire Ins. § 248, et seq.) The plaintiff took the policy home with And because it also appears that the defend him without reading it—in fact, was unable ant with full knowledge of the facts issued a to read it. On July 8, 1878, the mill buildpolicy to the plaintiff and accepted the prem-ing and machinery were destroyed by fire. ium thereon, it is now estopped to say, the Upon application to Hotaling & Co., for the plaintiff had no insurable interest in the insurance, they claimed that the policy only property for the purpose of avoiding the covered the building and offered to pay the policy. (Wood on Fire Ins) § 498.) plaintiff $1,500 for the loss. This the plaintiff refused, and insisted that it was his understanding that the machinery was included in the risk—particularly that which was fixed in its character.

The plaintiff being so in possession, after previous solicitation by said Friedenrich, on July 15, 1876, applied to said agent for a policy upon said property against fire, in which the same appears to be described as a On the first application, which is called "building" valued at $4,000, to be insured exhibit No. 1, there is no description of the for $3,000 at 4 per centum premium. This property except the printed words or formuapplication was made upon one of the de-la-"On buildings" with the s crossed out, fendant's blanks, entitled "Store buildings followed by the figures in writing ——“$4,000,” and merchandise survey," and was filled up "$3,000" and "4,000" under the words "val. by the agent and by him soon after trans-uation"-"Sum to be insured" and "Rate,” mitted to Hotaling & Co., where the clerk in respectively. charge of this business, on July 20, 1876, These figures are not in the hand writing filled out a policy for one year upon the of Friedenrich, and appear to be in that of plaintiff's three story frame water power mill the clerk of Hotaling & Co. who wrote the building,” for the sum, and at the sale afore-word "building" and the same figures theresaid and forwarded the same to Friedenrich after in the second application, called exhibit at Hillsborough for delivery to the plaintiff C. Therefore it appears there was no deupon the payment of the premium. At scription of the property in the first applicathe time the application was delivered to the tion when signed by the plaintiff on July 15, clerk at the place of Hotaling & Co., he re- 1876. The exhibit C was filled up partly by marked to the party delivering it that it was the clerk aforesaid, and in answer to the 42d made out on the wrong blank, and taking up question therein-"What is the cash value one containing many more questions and in- of the building or buildings above the foundatended for the survey of mill property filled it tion?" he wrote $4,000; but when the appliup so far as the information contained in the cation came to Friedenrich, at Hillsborough, one already signed by the plaintiff would [and he completed the filling up, he drew a permit, and handed it to the party, saying line through the figures "4,000" and wrote that he would issue the policy and send it to $2,000" in their place; and in answer to the Friedenrich, but to take the mill blank to subdivision "B" of the same question, on Hillsborough and have the filling up com- the next line below-"Of the machinery," pleted there and have it signed by the plain- that is the value-he wrote $2,000—thus tiff. The second blank was taken to Hills-making the application read in effect, the borough on the afternoon of the same day. The filling up was completed by Friedenrich and the paper signed by the applicant, and

value of the building and machinery together is $4,000. This application is signed by the plaintiff but not dated. For the defendant

it is suggested rather than asserted that it was not signed until after the policy was delivered, and probably not until after the fire. But the only persons who know what is the truth of the matter are the plaintiff and the defendant's agent, Friedenrich, and they both swear positively that it was signed before the delivery of the policy.

Recent Decisions.

MASTER AND SERVANT.

1. Master liable for his own negligence to servant; and to inferior servant for negligence of superior one. A master, whether an individual or a corporation, is responsible to his servants for his own negligence, but, as a general rule, not for that of their fellowservants. Where, however, a master places one servant in a position of subordination to another servant, and the subordinate servant, without fault, is injured through the negligence of the superior servant while both are acting in the common service, the master is liable therefor.

On this state of facts both exhibit No. 1 and C, ought, I think, to be considered parts of one and the same application, unless the latter should be regarded as superseding the former altogether. But in either view of the matter, although only the word "Building" is used in No. 1 to denote the property insured and also in the general description in C, yet the fact being, that in the more particular statement as to value in C, the $4,000 2. Engineer and brakeman-brakeman not is equally distributed between the building subordinate to engineer. Where an engineer and the machinery, it is satisfactorily shown and brakeman were employed by a railroad that it was the intention of the parties to the company in operating the same train, and contract to include them both in the policy. there was no evidence to prove that the But insurers are presumed to be acquainted brakeman was placed in a position of suborwith the nature of the property they insure. dination to the engineer, other than what And when we consider how unreasonable, if may be implied from the rules of the comnot absurd, it is to suppose that any sane pany requiring the engineer to give certain man would propose to iusure a mill-house-specified signals as "a notice" to apply or the mere shell or covering-against fire and leave the more valuable machinery exposed to almost certain destruction and lo s in case the house was burned, it seems clear that this application was neither made by the plaintiff nor received by Friedenrich as for insurance upon the shell or building only, but for the property as a whole--the house and machinery. Besides the amount upon which the premium was paid by the plaintiff and re-fore, the company was not responsible to the ceived by the defendant was manifestly more than the value of the mere building, and this tends to show also that something more was intended and agreed upon than a policy on

the house alone.

It is not to be presumed that the plaintiff would insure his mill building for more than twice its value when from the nature of the case, if it was destroyed by ffre, its real value could be shown, If it was a stock of goods or something the character and value of which was not known to the whole neighborhood, it might be otherwise.

[Concluded Next Week.]

loose the brakes, and requiring the brakeman. to manage the brakes "according to cireumstances and the signals of the engineman,' and placing the brakeman while on the train in subordination to the conductor: Held, that the engineer and brakeman were servants of the company engaged in common service; that the relation of superior and subordinate did not exist between them; and that, there

brakeman for an injury occasioned by the negligence of the engineer. (Pittsburg, Fort Wayne, and Chicago Railway Co. v. Lewis, Sup. Ct. Com. Ohio.)

LAW OF MECHANICS' LIENS OF CALIFORNIA, and material men. For mechanics with explanatory remarks. This accurate, complete, and valuable work, of 32 pages, has just been handed us by the authors, Messrs York and Clement, of the San Francisco Bar; and to all who need such a work we can safely recommend it as reliable, and with a full supply of the proper forms for use. Furnished by the RECORD OFFICE, price only 50 cents.

Vol. II.—No. 13.] SATURDAY, DECEMBER 28, 1878.

THE MORE MURDER CASE.

PROCEEDINGS IN CONTEMPT THE COUNSEL
FOR DEFENSE FINED $250 EACH.
SAN BUENAVENTURA, December 24th.-In
the District Court this morning the contempt
case of Messrs. Haymond, Allen and Brooks
was called up, and Colonel Hines, for the
defense, read the following affidavit of the
respondents:

ises as such attorneys and counsellors, and to the end that their client, the said Churchill, might have whatever benefit or advantage should arise therefrom, they advised said Churchill to make the affidavit now on file in this Court, and thereupon, and upon the grounds mentioned in said affidavit, they, as attorneys of said Churchill, in an orderly, respectful and decorous manner, presented in writing their objections to said Eugene Now comes the said Creed Haymond, W. Fawcett acting as Judge of this Court in the W. Allen and J. Marion Brooks, and each trial of said cause. That in so advising their for himself says, that he is an attorney and said client and presenting said objections to ́ counselor at law; that he is the attorney of this Court they acted within their duty as J. S. Churchill, who is accused by the grand attorneys and counsellors, believing that on jury of the county of Ventura of the crime of precedent and authority the said Eugene murder, and that said Churchill is now on Fawcett has vacated his office of District trial upon said charge before this Court. Judge. That neither in giving such advice And they further say that in consequence of or presenting said objections to this Court the poverty of said Churchill, and his inabil- did they intend any contempt of the authority to retain counsel for his defense, they and ity of this Court, but all their acts and each of them are defending said Churchill doings in the premises were taken and had from a sense of duty and obligation, which in good faith toward their client and this they believe is imposed upon them by virtue Court, and with proper regard to the dignity of their office as attorneys and counsellors-at- of this Court and of their office as attorneys law, to defend all persons charged with crime and counsellors. That neither the affidavit who may apply for their services, and who, of said Churchill, or the objections made by reason of poverty, are unable to make thereon, are scandalous or impertinent, either compensation; and that they, or either of in law or in fact, nor were the same, nor them, have not received any fee or reward either of them, presented for the purpose of for their service in said case, nor have they intimidating this Court from the performance or either of them any hope or expectation of of its duty or for the purpose of intimidating ever receiving any. That in defending the it in any manner whatever, or for any other said Churchill upon the said charges as afore-purpose than to secure to their client the said, they believed it to be their duty to object to the trial of the cause of the People against Churchill before this Court, if the Hon. Eugene Fawcett should preside as the Judge thereof, because they and each of them believed and still believe that the said Hon. Eugene Fawcett was and is not in law competent or qualified to act as the Judge of this Court, or to preside on the trial of said cause, because they were and are of opinion tha the said Hon. Eugene Fawcett had, and has in law, vacated and impliedly resigned his said office of District Judge, by accepting another office, to wit: the office of Delegate to the Convention to revise a Constitution for the future government of this State. That in pursuance of their dnty in the prem

advantage of said objections in case the verdict of the jury and the judgment of the Court should be adverse to him, and to the end that he might have the benefit of said objections on appeal, and to secure to him all his legal rights in the premises, and for no other purpose. And these deponents further say that none of the acts charged upon them by the order of this Court requiring them to show cause why they should not be punished for contempt, constitute in law a contempt of the authority of a Court or a Judge thereof. That whether the objections made and taken by them to the rights of Eugene Fawcett to preside as the Judge of this Court on the trial of said cause are tenable in law or not, these deponents believed and still be

greeable things in connection with the conduct of some of the counsel ever since the commencement of these trials. Finding, from questioning that gentleman, that Mr. Allen had never been admitted to practice in the Supreme Court of this State, but only in the Seventeenth Judicial District Court, his honor imposed an additional fine of $250 upon him, with the alternative of imprisonment, for having acted as an officer of this Court without having the right to do so. A stay of proceedings for ten days was granted.

lieve that on the authority of analagous cases in other States, and especially those decided by the Court of Appeals of the State of Kentucky, that their point was well taken, and should have been sustained by this Court, and they so contend and urge; and so believing they would have been recreant to their client and to the obligations of their oaths as attorneys and counsellors if they had failed to record their said objections. And further answering to said order, these deponents say they are not guilty of contempt in law or in fact; that they have simply endeavored, to While these proceedings were being had, the best of their ability, to perform in good the jury in the Churchill case sent in a note faith their duty towards an unfortunate asking to be discharged as it was impossible human being whose life is in the issue on for them to agree. The court refused to distrial before this Court, and in his interest, charge them at present. Counsel partly exand from no other motive, they have pre-pect to agree when this case is over to try sented to this Court a legal objection to the the remaining prisoners together, including competency of the presiding Jndge. Churchill, if a miss-trial occurs. They are Wherefore they ask that the order herein consulting together over it. made be vacated and dismissed.

CREED HAYMOND,
W. W. ALLEN,

J. MARION BROOKS,
ALFRED A. COHEN,

Of counsel for said Creed Haymond,
W. W. ALLEN and
J. MARION BROOKS.

Bulletin, Dec. 24.

OHIO STATE REPORTS.-We have just received from Messrs. Robert Clarke & Co. of Cincinnati, Ohio, the advance sheets, part 1 of vol. 34, of the Ohio State Reports,-with the explanatory notice, that "by arrangement of the courts, vols. 32 and 33, will contain the decisions of the Supreme Court Commission, andvol. 34, the decisions of the Supreme Court."

Colonel Hines argued the matter at some length. His Honor replied that he could not be expected to measure swords with counsel and discuss his own right to sit where he did. The sitting Judge is the de facto Judge, and his right to act as such cannot be attacked We have heretofore noticed the issue of in this way. all the parts of vols. 30 and 31, and no doubt He referred to the case of Justice Noah those of 32 and 33 will soon be forthcoming. Davies, of New York, who had punished These advance sheets are issued at $2.50 counsel for similar proceeding, and his de- per vol. sent by mail post paid, and will be cision had been acccepted by an enlightened bound upon return of the parts, for $1 per public opinion. Counsel for the defense were vol. familiar with law, and knew that the political code provided a method of attacking his right to preside. It could not be done in this manner, after a jury had been impaneled and a case was ready to be tried. To sustain the dignity of his Court, and for no other reason, he should impose a fine of $250 on each of the counsel, with imprisonment until paid at the rate of $10 per day, and also giving a stay of proceedings of thirty days. The Court said there had been many disa

LOST PROPERTY.-Durfee purchased, and left with Jones for sale, an old safe, giving Jones permission to use. The latter found hidden in it a roll of bank bills belonging to some unknown party. Durfee first demanded the money, and then the safe with its contents as received by Jones. The safe was returned but not the money. Held that as against Durfee's right, Jones was entitled to retain the money.-Durfee vs. Jones, Sup. Ct., R. I.