« ForrigeFortsett »
ant, and given in a modified form, are, as they went to the jury, consistent with the other instructions which we have approved. It follows, therefore, that there was no error in modifying them, as was done. The twelfth instruction asked by the defendant was properly refused, because it was in direct contlict with the other instructions given.
The court refused to permit the defendant to prove by experts the manner of adjustment of losses by insurance companies. This was clearly incompetent evidence. The rights of the plaintiff were perfect or otherwise, under the policy, when the loss occurred. A custom as to the manner of adjusting such loss could not affect her, unless she had knowledge thereof at the time the policy was executed, or at least that such custom was so general and well understood that it must have entered into and formed a part of the contract. It is lastly urged that the court erred in overruling the motion for a new trial; and, as we understand the point made, it is that the evidence is not sufficient to warrant the verdict. Under the settled principles of this court, we can not interfere with the verdict on this ground. Affirned.
203; Mississippi Ins. Co, v. Neyland, 9 Bush. 430; Sheldon v. Cenn. Mutual Ins. Co., 25 Conn. 207; Viele v. Germania Ins. Co., 26 Iowa, 9; Westchester
ire Ins. Co. v. Earle, 33 Mich. 143; Bowman v. Agricultural Ins. Co., 59 N. Y. 521; Brohun v. Williamsburg Ins. Co., 35 N. Y. 131, and cases there cited. In Hartford Fire Ins. Co. v. Walsh, 54 Ill. 664, the policy stipulated that “ if the premises shall be vacated by removal of the occupant for a period of more than thirty days without notice and consent indorsed upon the policy, it shall be void.” While it was in force consent was obtained to let them remain vacant. The party to whom notice was given ceased to be an agent for the insurer. The policy was renewed, and afterwards one of the houses became vacant for more than thirty days. It was held that the policy was avoided. In American Ins. Co., v. Padfield, 8 Ch. L. N. 138, it was held that the consent of an agent before the issuance of the policy, and at the time of the application for insurance, to the non-occupancy of the premises, could not bind the company. The other cases holding the same doctrine and involving substantialiy the same state of facts, are Wustum v. City Fire Ins. Co., 15 Wis. 138; Ashworth v. Builders Mutual Ins. Co., 112 Mass. 422; Ætna Ins. Co. v. Burns 6 Ins. L. J. 69; Keith v. Quincy Mutual Ins. Co., 9 Allen, 231. But in some of these cases the principle question involved was what constituted an occupancy, Although cited as holding a contrary doctrine to that enunciated in the case under consideration, the fact is the question is not fully raised in any one of them, and mostly the opinions in regard to the question under consideration are extra-judicial.
But opposed to this are the cases of Hough v. City Fire Ins. Co., 29 Conn. 10; Cannell v. Phønix Ins. Co., 59 Me. 582; Foy v. Ætna Ins. Co., 3 Allen (N. B.), 29; Young v. Hartford Fire Ins. Co., supra; Peoria Fire & Marine Ins. Co. v. Hall, 12 Mich. 213; Warner v. Peoria Fire & Marine Ins. Co., 14 W is. 319; Rowley v. Empire Ins. Co., 36 N. Y. 050; Keenan v. Missouri State Mutual Ins. Co., 12 Iowa, 131, and cases there cited. In all these cases, the question was raised and discussed, and the same conclusion was reached as in the case at bar.
C. M. D.
NOTE.-In regard to the question of the proofs of loss in the foregoing opinion of the learned judge, it certainly appears that he has given great latitude to one of the cases cited in support thereof, viz.: Ayers v. Hartford Ins. Co., 17 Iowa, 176. The difference between that case and the present one is this. In this case the question was whether the proofs of loss were made according to the terms of the policy, requiring them to be made before the nearest magistrate. If they were not made before the nearest magistrate they were inadmissible as proof. In Ayres' v. Hartford Ins. Co., supra, there was no dispute as to the validity of the proofs themselves; but that they were made by only one party in interest, he making them for himself and the plaintiff Ayres. In that case, the court held that if the co-owner was not an agent for the plaintiff, the proofs so made were not sufficient. Mason v. Harvey, 8 W. H. & G. 819; Keenan v. Dubuque Mutual Ins. Co., 13 Iowa, 375. However, the ruling of the court regarding the construction of the clause in the policy in regard to proofs of loss is sustained by the weight of authority. Francis v. Ocean Ins. Co., 6 Cow. 404; Catlett v. Pacific Ins. Co., 1 Wend. 561; Ocean Ins. Co.v. Francis, 2 Wend. 64; Bumstead v. Div. idend Mut. Ins. Co., 12 N. Y. 81; MacMasters v. Westchester Mutual Ins. Co., 25 Wend. 37; Thuring v Great Western Ins. Co., 111 Mass. 93; Imperial Fire Ins. Co. v. Murray, 73 Penn. St. 13; Globe Ins. Co. v. Boyle, 21 Ohio St. 119, and cases there cited.
The question discussed by the learned judge regarding the occupancy of the building and the power of the agent to bind his principal is not altogether clear or free from doubt. The decisions thereon are yet conflicting; but the better opinion seems to be that every statement of an agent to the insured, having the power to issue policies, receive premiums, give consent to increase of risks, and waive forfeitures, which waives any printed conditions of the policy, is binding on the company, And the insured is not bound to take notice of the powers and duties of the agent. If he has knowledge of any limitations on his powers, such as heretofore enumerated, he is bound thereby. But he is not bound as in matters of which he is chargeable with having knowledge, such as matters of common observation. Young v. Hartford Ins. Co., 45 Iowa, 376; Bartholomew v. Merchants Ins. Co., 25 Iowa, 507: Aultman v. Phænix Ins. Co., 27 Iowa,
CITY OF INDIANAPOLIS V. INDIANAPOLIS
GAS LIGHT AND COKE CO.
Supreme Court of Indiana, June, 1879.
1. A MUNICIPALITY CAN NOT ABRIDGE ITS LEGISLATIVE POWER by contract, and it can not impair a contract by its legislative power; neither can it make a valid contract beyond its power to contract, and a contract made within its power to contract is valid.
2. A CONTRACT MADE BY A MUNICIPAL CORPORATION, not ultra vires, not against public policy, and not fraudulent, may be enforced the same as the contract of a person.
BIDDLE, J., delivered the opinion of the court:
The complaint in this cause alleges, in substance, that, on the 22d day of July, 1876, the city of Indianapolis and the plaintiff entered into a contract in due form of law, whereby the latter agreed to furnish gas of a quality and kind specified in the
3d section of an ordinance of the city, enacted March 19, 1866, for the supply of all the street lamps, city offices, engine houses, council chamber, tunnels, bridges, station houses, and all other places where gas was required for the use of the city in her corporate capacity, in consideration of an agreed compensation; that the contract was to be in full force and operation for the term of five years from its date, and a further term of five years, if the city so elected; that, among other provisions, it contained the following: “It is further stipulated and agreed, that nothing in this contract shall alter, modify or suspend the provisions of the contract at this time existing between the said party of the first part (the company), and the said city of Indianapolis, as evidenced by the ordinance (of March 19, 1866, and which was for a term of tw nty years), except so far as may be necessary to give effect to the provisions of this contract, and when this contract shall terminate, either by the expiration of the time limited, or by the failure or refusal of the city to perform its part thereof, then the said contract of March 19, 1866, shall stand and continue for the unexpired term thereof, to be the contract between the parties hereto
in all respects as though this contract had never been made."
It was also stipulated between the parties that, if the Gas Company failed to keep the street lamps and posts clean and in repair, the city should cause them to be cleaned and repaired, and deduct the cost from any sum of money due to the gas company from the city; and, also, that the city should have the right to deduct from any amount due to the company, fifteen cents for each la mp for each night that it was not lighted, and kept lighted during the time required by the time-table. Also that the city should, at all times, have the right to test the quality of the gas furnished by the company, and the capacity of the burners on the street lamps.
It is further alleged that, on the faith of this contract, and for the purpose of being better able to carry it out, the plaintiff had, in good faith, from time to time, made extensive additions to its apparatus, extended its mains, etc., into newly-added streets, on many of which there were few, if
any, private consumers, made large repairs to lamps, etc., and was, by reason of the contract, enabled to furnish gas to private consumers at a rate much less than would be practicable without it; that the plaintiff had fully complied with the contract, and was prepared to, in all things, discharge its obligations; and that the city had so done, until the
-, 1878, when it notified the plaintiff, through its clerk, “ that unless it accepted $55,000 for 2,000 hours, and the company to light and extinguish the lamps so as to give the most light, that the city would discontinue the use of gas on August 1, 1878, and that payment of said gas should begin July 1, 1878, and end June 30,
the plaintiff returned answer to the defendant, refusing to recognize the action referred to, and setting out at length the reasons therefor, and also declaring its intention to continge lighting the streets, etc., as provided for by the contract, until the city should refuse to pay as therein provided; that on the ensuing 31st day of July the council and board resolved that, inasmuch as the legislature, by the act of 1877, bad limited the levy, for revenue purposes of tbe city, to ninety cents on the one hundred dollars, and the decline in valuations had greatly reduced the amount of taxables on the city duplicate, thereby reducing the revenue for the then fiscal year, and it was impossible to carry on the city government, and light the streets, etc., as during the preceding year, and no arrangement could be made with the company for lighting which would be within the city's revenue, it was deemed that the best interests of the city required the discontinuance of the lighting with gas from August 1, 1878, and the same was accordingly ordered, and the engineer was directed to notify the company that the city would pay for no gas consumed, etc., after that day. He was also ordered to remove the burners and seal the lamps, and it was ordered that inquiry should be made respecting the cost of lighting by other means than gas. It is averred that a copy of the resolution was served on the company, but notwithstanding, it continued to furnish gas and perform its agreements until the nineteenth day of August following, when the parties entered into a provisional agreement, which was set out in full in the complaint. After reciting the execution of the contract of July 22, 1876, that disputes had arisen respecting its validity, and that suit involving this question had been instituted by the company, it was provisionally agreed for the term of one year from August 2, 1878, that the company should proceed to furnish gas, etc., according to the terms specified, and that after the expiration of the contract the parties were to be remitted to whatever rights they had under the contract of July, 1876, and that the provisional agreement was not to be construed as against the positions occupied by the parties respecting its validity, etc., nor as barring any right of action the company may have had for gas furnished, etc., on the first day of August, 1878. The contract concludes as follows:
And, for the purpose of determining the right of said company to recover for said gas, and lighting and extinguishing the same, the following facts are agreed, to wit: That said city, on the twentyninth day of July, 1878, notified said gas company that she did cot regard herself bound by said contract of July 22, 1876, and elected to, and did treat said contract as a nullity; and that the city would not pay said company for gas furnished, and for lighting. extinguishing, cleaning and repairing of lamps, under the terms of said contract, on and after the first day of Angust, 1878; and that she (the said city), claimed the right to regulate the lighting of the streets and alleys of said city, and of determining what amount of gas should be consumed by the city; and that the city, by her Common Council and Board of Aldermen, had resolved
nished by the city civil engineer,” and which notice was based on a resolution to that effect, of the Board of Aldermen and Common Council, adopted July 22, 1878; that, on its reception,
and determined, on and after said first day of Au- etc., of the corporation, and their control, and gast, 1878, not to light the streets and alleys of the concludes with the following proviso: “That city as, and in the manner provided for in said con- nothing in this act shall be so construed as to grant tract, and resolved and determined upon other reg- to said Gas-Light and Coke Company the excluulations for lighting the streets and alleys of said sive privilege of furnishing said city with gas for city. And after said notice by the city, the said the purposes within named." gas company, notwithstanding the objection of the The sixth section is as follows: “ The said city city, proceeded to, and did light all the lamps of Indianapolis, in its corporate capacity, shall mentioned in said contract of July 22, 1876 (2840 have power to contract with said company to furin number), in all things according to the terms of nish gas for the purpose of lighting the streets, said contract of July 22, 1876, on said first day of August, 1878. And it is agreed that the gas fur- or buildings, and may provide means to pay for the nished, and the lighting and extinguishing the said same in such a manner as they may deem best," lamps, on said first day of August, was, and is of etc., etc. the value of $230, according to the terms of the
In the general law relating to cities, under which contract of July 22, 1876. Now if, upon the facts the city of Indianapolis is now incorporated, the aforesaid, the contract of July 22, 1876, was a fifty-third section, in enumerating the powe:s of binding and operative obligation upon the city on cities, has the following: “ Twenty-eighth-To said first day of August, 1878, the said gas company construct and establish gas-works, or to regulate shall have judgment for $230; otherwise, the city the establishment thereof by individuals or comshall recover her costs."
panies, or to regulate the lighting of streets, pubThe complaint, in conclusion, alleges that the gas lic grounds and buildings, and to provide, by ordifurnished, etc., on the first day of August, was, as nance, what part, if any, of the expense of lightmeasured by the prices and terms of the contract ing any street or alley shall be paid by the owners of July 22, 1876, of the value of $230, and judg- of lots fronting thereon, and in what manner the ment therefor was prayed.
same shall be assessed and collected, and to make To this complaint the defendant interposed a de- the same a lien upon real estate.” 1 R. S. 291. morrer, assigning, for reason, that it did not state The city of Indianapolis, at the time the appelfacts sufficient to constitute a cause of action. lee was incorporated, was acting under its original
The demurrer was overruled. The defendant charter, granted in 1838. The question was mooted excepted, and refused to plead further; where- rather than discussed, whether the city, by abanupon the court rendered judgment for the plain- doning the original charter, and accepting its frantiff. The only question in the case, therefore, is chises under the general act for the incorporation thus presented upon demurrer to the complaint. of cities, did not forfeit its rights to contract with
The following is the statutory authority upon the gas company, as expressly conferred by the which the contract is based :
sixth section of the act incorporating the company. The plaintiff was incorporated on the 12th day
We do not examine this question particularly, as of February, 1851. Local Acts of 1851, page 295. we are of the opinion that the city had ample The legislature reserved no right, either to repeal authority under the 28th clause of section 53 of the or amend the charter. The first section of the general act, as above quoted, to contract with the charter creates certain persons named and their company concerning the subject matter in conassociates, a body corporate and politic, “ with troversy; and, having the power, might exercise perpetual succession.” This created a corpora- it according to its own discretion, within the limits tion without any limit as to its duration, unless of its franchise. There is not any doubt but the there is some other provision in the charter clear- company had the power to contract with the city. ly indicating that it was not the legislative inten- We may thus safely conclude that the parties tion to confer upon the company a perpetual ex- had the power to contract concerning the subject istence. The second section of the charter indi- matter. cates the purpose for which the corporation was But the appellant claims that “to regulate the created, to wit: “to manufacture and sell gas, to lighting of the streets is a legislative power which be made from any or all the substances, or a com- can not be delegated away, surrendered or restrictbination thereof, from which inflammable gas is ed by contracts or otherwise; and that the conobtained, and used for the purpose of lighting the tract in question is a restriction upon that legiscity of Indianapolis or streets thereof, and any lative power, and therefore invalid." This we unbuildings, manufactories, public places, or houses derstand to be the basis of the appellant's defense therein contained, and to erect necessary works to the contract. and apparatus for conducting gas in the streets or As to the power to contract: All persons may avenues of said city.” The fifth section, after contract unless the power is denied by law; providing that the corporation may make by-laws, as in case of minority, coverture, or other legal etc., not inconsistent with the Constitution and disability. No corporation can contract unless laws of the United States, or of the State of Indi- the power is granted by law. This power is ana, provides, " said company shall have the priv. generally granted to business corporations, as for lege of supplying the city of Indianapolis and its banking, manufacturing, shipping; and such corinhabitants with gas, for the purpose of affording porations generally have no legislative or governlight for the term of twenty years." The section niental powers, except the power to make bythen makes provision as to the duties of agents, laws for their own government; they can not pass
ordinances for the government of others. Municipal corporations, besides the power to contract, which is generally granted to them within certain limits, have legislative or governmental powers, by which they make by-laws to govern themselves, and pass ordinances to govern others, as the citizens of a town or city within their geographical limits. This power to legislate, within the authority delegated to them by law, is distinct from the power to contract, although exercised by the same corporation. They can not, by contract, delegate or restrict their legislative power, nor can they merely, by their legislative power, make a contract. These two powers need not be confounde The exercise of the legislative power requires the consent of no person except those who legislate, while it is impossible to make a contract without the consent of another, or others. We think, therefore, that when the city of Indianapolis made the contract in question, with the gas light company, it made it in the exercise of its power to contract, and not in the exercise of its power to legislate, although the power to make the contract was authorized by an ordinance; and having the power to make a contract touching the subject-matter, it had the right to make it according to its own discretion, as to its prudence or good policy, within the limits of its franchise. Nor can we see that the contract in the least restricts the legislative power of the city, except that, as the sanctity of the contract is shielded by the Constitution of the United States, it can not, in the exercise of its legislative power, impair its validity; for it would be a solecism to hold that a municipal corporation, by an ordinance or resolution, can impair the validity of a contract, when the State, which created the corporation by its most solemn acts, has no such power.
The counsel upon both sides, who discussed the question before us, seemed to think that the authorities upon the question were seriously in conflict. This court had occasion to remark, in the case of Roll. v. City of Indianapolis, 52 Ind. 547, as follows: “ The question presented in this case is one of intrinsic difficulty. The authorities may possibly be reconciled, but they are not entirely barmonious. No doubt the discrepancies sometimes arise out of the differences in the powers granted by municipal charters, which are not always distinguished in the decision, thus leaving us in danger of being misled by propositions which seem general, when they are applicable only to a given municipality." So, we may well say in the present case, we do not think the authorities, upon the principles of construing the powers of municipal corporations, are in serious conflict. If all the charters were the same, we think the authorities would essentially harmonize. It is necessary, therefore, in examining the authorities, to be particular in ascertaining the premises in each case; where they are the same the authorities will generally agree. They all agree in the following propositions, we believe: That a municipality can not abridge its legislative power by contract, and that it can not impair a contract by its legislative power; that a municipality can not make a valid contract beyond its
power to contract; and that a contract made within its power to contract is valid; so that, when the powers granted are different, the conclusions must be different also. But the case of Rittenhouse v. The Mayor, etc., 25 Md. 336, which seems to hold that the repeal of an ordinance authorizing a contract, abrogates the contract, it must be admitted can not be reconciled with the current of authori. ties. We have found no other case that does not hold upon that point directly the reverse; we therefore can not follow that case.
The case of Garrison v. City of Chicago, 7 Biss. 480, relied upon by appellant's counsel, does not seem to us to support their views. That case was upon a contract made by the gas company with the city of Chicago, to furnish the city with gas for ten years. At the time the contract was made, or, rather, at the time when a previous contract was extended, the charter contained a provision that no contract should be made by the city involving any expense, unless due appropriation was previously made to meet it; and the comptroller was required in May of each year, to submit an estimate of the amount necessary to defray the expenses of the city for the current fiscal year. No such appropriation was previously made, and the court puts the case expressly on that ground, in the following words: “The question to be determined is whether there was a reasonable necessity, on the part of the city council, to extend the contract in controversy here, and which will not be maintained for ten years from its date, there being no appropriation made commensurate with the obligation of the contract." Here is a contract not only without authority in the charter to make it, but made in violation of its express terms, which both parties were bound to know at the time they contracted. Of course such a contract is invalid. The extension of the contract already made, ten years beyond its terms, is not different in principle from making a new one.
In the case of City of Oakland v. Carpentier, 13. Cal. 540, wherein the trustees pretended to convey to Carpentier and his representatives, the exclusive right and privilege of constructing wharves, piers and docks, at any point within the coporate limits of the town of Oakland, with the right of collecting such wharfage and dockage as he might deem reasonable, upon certain conditions expressed in the ordinance." This contract was held to be invalid, because it parted with the public authority over the wharves and docks, and left them to be controlled by private interest, and not because the city of Oakland had no power to contract for building wharves and docks. By the contract we are considering, the city of Indianapolis is not restricted in any respect from the legitimate exercise of its public power touching the subject-matter of the contract; but expressly reserves its administrative authority to keep the posts, lamps, and burners in good order and repair, if the gas company should fail to do so; and also reserves the right to test the quality of the gas furnished by the company, and the capacity of the burners at all times. We can not see wherein, by the contract, the city is restricted from extending its streets, es
tablishing an additional number of lamps, obtain- deed of suretyship. In the dealings between plaintiff Ing gas from other sources, or establishing its own and Scott as to the promissory note and various re
newals, no reference was made to the estate of the gas works, as the public interests might require;
surety nor to the deed-and the co-executors of Scott and all this it can do without violating its contract.
had no knowledge or notice of such dealings: Held, No exclusive right is granted to the gas company.
affirming the judgment of the Common Pleas, that the Nor can we recognize the fact averred in the com
dealing between plaintiff and Scott had the effect of plaint, that the legislature has reduced the ratio of
releasing the liability of the estate of the surety-nottaxation, and thus embarrassed the city in its withstanding that Scott was at the time of such dealfinances, as rendering the contract invalid, or in ing one of the executors of the surety.-Austin v. any manner excusing the city from the perform
Gibson. Ontario (Canada) Court of Appeal, 15 Can..
L. J. 189. ance of its stipulations. A municipal corporation not having either body,
CRIMINAL LAW ABORTION SUPPLYING limbs, feet or hands, but being merely a legal en
“Noxious THING.”—The prisoner supplied a preg.
nant woman with two bottles of Sir James Clarke's. tity, can not execute its own acts, nor administer
female pills, with instructions to take twenty-five pills its own affairs. To do this it must employ persons,
at a dose, and it would procure a miscarriage, but if other corporations, or agencies of some kind, and
taken as directed in the wrapper on the bottlesto employ them and agree to pay them is to make namely, one pill night and morning, and increasing
contract; and if it could not make such contract the dose to four pills a day, it would have a contrary and was not bound thereby, it could not carry on effect. It was proved that the pills contained oil of the purposes or attain the objects for which it was
savin, and that a bottleful, consisting of from three to established. Its ordinances will not execute them
four dozen pills, would contain about four grains,
which would probably be sufficient to procure an selves, and to deny it the power to have them ex
abortion; that oil of savin in any dose was a most ecuted would be to render it useless and helpless. dangerous thing to give to a pregnant woman, and When it makes a contract within the scope of its was given in such cases to procure abortion. Held, power-not ultra vires—which is not against public that there was a supplying of a noxious thing, within policy and not fraudulent, it must be enforced the the meaning of the act, 33, 34 Vict. ch. 20, sec. 60, D, to same as the contract of a business corporation, or
procure an abortion.-Reg. v. Stett. Ontario (Canada)
Court of Common Pleas, 15 Can. L. J. 193. a person. Upon what is averred in the complaint, it is impossible for a court to say that the contract MASTER AND SERVANT ENTICING SERVANT TO
DESERT EMPLOYMENT-- MEASURE OF DAMAGES. before us is open to any of these objections. The
1. Plaintiff sued defendants for enticing and procuring authorities upon the question are too numerous to
certain servants of plaintiff to desert his service. be noticed in detail; but we think their main cur
| The evidence at the trial established that the parties rent supports the views we have taken in this opin- in question were in plaintiff's service,and with the exion. Nor do we think that, upon principle, they ception of one of them that they were induced by deare seriously conflicting. The apparent conflict fendants' manager to leave the same. Held, following arises from applying their language generally,
Lumley v. Gye, 2 E. & B. 216, that plaintiff was entiwhen it was only meant to apply to some particular
tled to recover, and that the measure of damages was
not confined to the loss of services, but that they were municipality. Dillon Mun. Corp., $$ 52, 55, 60, 61,
justified in giving ample compensation for all dama97, 245, 250, 371, 372, 382, 394, 395, 547, 548; 15
ges resulting from the wrongful act. 2. Plaintiff while Ind. 393; 39 Ind. 373; 42 Ind. 200; 52 Ind. 547; 9 objecting to one of the parties going, said he did Cal. 453; 16 Maine, 317; 7 Hill, 61; 27 N. Y. 611; not know that he would trouble him if he did leave, 59 N. Y. 228; 28 Ga. 50; 31 Ala. 542; 2 Dill. 70; 18 but he did not consent to his so doing. Held, that Ohio, 563; 23 How. 435; 8 Wall. 64; 6 Otto, 341;
this did not in law amount to a permission to leave his 28 Mich. 228; 39 Miup. 671; 13 Iowa, 229; 29 Wis.
service.--Hewett v. Ontario Copper, etc. Co. Ontario
(Canada) Court of Queen's Bench, 15 Can. L. J. 205. 454; 25 Conn, 19; 31 Penn. St. 175; 64 Penn. St. 169, and numerous other authorities.
HUSBAND AND WIFE-AUTHORITY OF WIFE WHEN
HUSBAND A LUNATIC-NECESSARIES-ARTICLES OF Judgment affirmed.
LUXURY.-1. During the temporary confinement of the defendant in a lunatic asylum, his wife hired a
pianoforte, and purchased a piannette, from the plainSOME RECENT FOREIGN DECISIONS.
tiffs on credit, for an expensive residence in London, which the defendant had taken previous to his infirm
ity. The defendant was possessed of a considerable PRINCIPAL AND SURETY-GIVING TIME TO PRIN
estate, the entire income derived from which his wife CIPAL-DISCHARGE OF SURETY.-The testator, who
was in receipt of, same being abundant for the main. was surety in a covenant for the payment by the de- tenance of herself and their family. Held, that although fendant, Scott, of a sum of money, died, leaving a where a husband is a lunatic, and living separate will by which he appointed Scott and the other two
from his wife, she possesses an implied authority to defendants executors. After his death, Scott, on his pledge his credit for goods strictly necessary for her own behalf, made various payments on account of the maintenance, the defendant was not liable in respect debt, and being unable to pay the balance, some of the articles hired and purchased, as they were not $1,152, when due, he got the plaintiff to take his prom- necessaries, and his wife was in receipt of his whole issory note therefor payable in three months, Scott income, same, though exceeded, being sufficient to having arranged with his bankers to discount this note
support herself and family. 2. Semble, that he would not on which plaintiff got the money. When the note have been liable even for necessaries supplied on credit, matured part of the amount was paid by Scott and the in the absence of a finding by the jury of express aubalance renewed by another note of Scotl's indorsed thority given, as his income, wholly received by his by the plaintiff as before, the last renewal being for
wife, was so adequate and ample.- Chappell v. Nun. $618, which amount the plaintiff sought to recover in Irish High Court of Justice, Queen's Bench Div., 13. bis action against the defendant as executor in the
Ir. L. T. Rep. 104.