date, as between themselves, their was a brother in-law of Minzesheimer. contract of sale for a supposed vio. On the morning of the fourth of Janulation of the act.

ary, Minzesheimer, who was to pay for the This was a suit in trespass brought by stamps, purchased them and went with appellee, Minzesheimer, against appel- his son and Blumenthal to the factory lants, to recover damages for the taking with two wagons. Blumenthal pointed to of 10,700 cigars to which Minzesheimer the cigars, gave Minzesheimer several claimed title under a purchase from one boxes, saying: Here are your cigars." Regina Blumenthal, the cigars having Minzesheimer looked them over, and they been levied upon and sold by appellant began stamping. Schloss' foreman, in Ayars, a deputy sheriff, under a writ of charge of the place, then offered to stamp attachment in favor of appellants, Straus them with the aid of a boy, and to have and Sawyer, against Regina Blumenthal, them completed by 4 o'clock, which was and one Schloss, her partner. The record assented to, and Mmzesheimer and Blushows the following facts:

menthal then left. About 4 o'clock of In 1872 Minzesheimer was in partner- the afternoon Minzesheimer and B umenship with J. W. Schloss and Regina Blu-thal came back, but in the meantime the menthal in the cigar business in Chicago, levy had been made under the attachment under the firm name of F. Minzesheimer writ in favor of appellants Straus and & Co. This firm dissolved October 16, Sawyer, against Schloss & Co. 1872, and the business was continued by Defendant, among other things, reJ. W. Schloss and Regina Blumenthal, quested the court to charge, that under under the name of J. W. Schloss & Co. the act of Congress of July 20, 1868, The new firm became indebted to Straus there could be no sale of the cigars until & Co. in the sum of about $800. Regina they were boxed and stamped, which reBlumenthal lived in New York, and the quest was refused. business was conducted by Schloss in Chi

Verdict for plaintiff. cago. Julius Blumenthal, husband of Held, 1. That the title vested in plainRegina, came to Chicago acting under a tiff. power of attorney from his wife, and dis 2. That the act of Congress in no wise solved the firm, Blumenthal taking the affected the relative rights of the parties assets and agreeing to pay the firm debts. to this sale. Blumenthal took charge of the firm assets, Judgment affirmed. including cigars, tobacco, and fixtures at Opinion by Sheldon, J. store No. 39 South Canal street, and the cigars in controversy, at factory, No. 39

LIFE INSURANCE. WARRANTY. Waller street. Blumenthal was to take

REPRESENTATION. charge of the cigars as soon as they could be packed and ready to be stamped. Be- U. S. CIRCUIT COURT—NORTHERN DIsfore they were packed or stamped, and on

TRICT OF Ohio. the 2d of January, 1873, Minzesheimer Buell v. The Conn. Mutual Life Insclaims to have bought the cigars of Blu- Company. menthal. The alleged sale was made at

Decided February, 1876. 283 West Lake street, a mile and a half

Statements in the application for infrom the cigars at 39 Waller street. Min

in the declaration, or zesheimer had never seen the cigars; he

answers to the questions are either paid $428 for them, and received a written

warranties or representations. If memorandum of the sale. Blumenthal

warranties, then materiality, or want was to deliver them January 4, 1873. He of materiality as to the risk, has


nothing to do with the contract. The and void.” The defendant av s that the only question is, were they untrue, said answer above stated was not in all and if so, the policy is void. But respects true and correctly stated, but was if representations, then to avoid the incorrect and untrue in this, the father of policy, they must be substantia ly said Jeptha C. did not die at the age of and materially untrue, or maile for 58, but he died before he was of the age the

purpose of fraud. The rule determining what amounts to of thirty years: Wherefore the defend

a warranty or representation stated. ant says said policy was and is void and

This suit is founded upon a policy of of no effect, and said plaintiff not eninsurance upon the life of Jeptha c. titled to recover any amount against the Buell, for the benefit of his wife, the defendant. plaintiff.

To this answer the plaintiff files her The defendant, as a second defense to demurrer, alleging as reason therefor, that the action, sets up in its answer that in all of said statements and allegations are the declaration ma le at the time of the redundant and irrelevant, and constitute application for insurance, among other no defense to the plaintiff's action. The things, the plaintiff says: “And I do. demurrer admits that the answer to the hereby agree that the answers given to question as stated in respect to the age of the following questions and the accom- the father at the time of his death, was panying statements, and this declaration untrue and incorrect. That being the shall be the basis and form a part of the fact, does it constitute a defense to this contract or policy between me and said action ? company; and if the same be not in all

Held, Statements in the application for respects true and correctly stated, the said policy shall be void.” That among the insurance in the declaration, or answers questions in said declaration above refer

to the questions are either warranties or red to, was the following question : “llas representations If warranties then mafather, mother, brother or sister of the terialıty, or want of materiality as to the party died, or been afflicted with con

risk has nothing to do with the contract. sumption, or any disease of the lungs, or

The only question is were they untrue, insanity? If so, state full particulars of and if so the policy is void. But if repeach case.That the answer to the above resentations, then to avoid the policy, they question given by the plaintiff was as fol- must be substantially and materially unlows: “ No. Father died from exposure

true, or made for purpose of fraud. in water; age 58. Mother living; age It is believed the true rule in relation about 50.” That the policy issued upon to the question of what amounts to a said declaration and questions and answers, warranty, or what amount only to repre. and sued upon, contains the following sentation, in the answers to questions in condition, to wit: “And it is also under-this class of applications, is: Where the stood and agreed to be the true intent answers are responsive to direct questions and meaning hereof, that if the proposals, asked by the insurance company, they are answers and declaration made by said to be regarded as warranties, and where Anna M. Buell, and bearing date the 19th they are not so responsive, but volunteered day of March, 1866, and which are here without being called for, they should be by made part and parcel of this policy as construed to be mere representations. fully as if herein recited, and upo the The part of the answer in question in faith of which this agreement is made, this case in reference to the age of the shall be found in any respect untrue, father at death, being a mere representathen, in such case this policy shall be null'tion, does not constitute a defense unless


it appears to have been material as well to furnish indemnity; that the certificate as fa'se.

was a negotiable promissory note; that The demurrer is therefore sustained.

the words “ upon the return of this cerOpinion by Welker, J.

tificate ” did not make it payable upon a contingency or constitute a condition

precedent to any payment, and if so, no PROMISSORY NOTE. INDEMNITY. money could be had without a return of

N. Y. COURT OF APPEAIS. the certificate ; that the fact that the cerFrank, respt., v. Wessels, applt.

tificate had not been indorsed did not Decided February 8, 1876.

alter the case. Patterson v. Poindexter, A receipt given on the deposit of moneys, ed. That the character of the certificate

6 M. & S., 227, distinguished and limitagreeing to pay the depositor or oriler in

paper currency the amount deposited was not changed by the fact that it was upon the return of the receipt, is a ne- payable in paper currency, as it must be gotiable promisso y note.

construed as referring to legal tender paIn an action brought thereon the defend

ant, under the 2 R. S., 406, is entitled per currency, which under the U. S. laws to a bond of indemnity where the instru

is money. ment has been lost.

Judgment of General Term, affirming This action was brought to recover a

judgment for plaintiff, affirmed, if plainsum of money alleged to have been depos- tiff within thirty days gives bond of inited by F., plaintiff's assignor, with de. demnity, to be approved by one of the fendant, for which the latter gave him a jndges of the City Court of Brooklyn, certificate or receipt, which contained

withont costs of this Court to either parexpress promise to pay F. or order, in pa- ty; otherwise judgment reversed and new per currency upon demand, the money

trial granted. loaned, with interest, upon return of the

Opinion by Church, Ch. J. certificate. The assignment of the claim was put in evidence upon the trial, and it

TRESPASS. COSTS. set forth that the cert ficate had been lost or stolen, and had not been indorsed by N. Y. SUPREME COURT—GEN’L TERM. F,; that he was the owner of it and enti

FOURTH DEPT. tled to its possession, and had not, until Smith, respt., v. Ferris, applt. at that date, parted with or disposed of Decided January, 1876. his interest therein. Upon the trial When lands are old under a contract of plaintiff's counsel stated that plaintiff sale without a Sconveyance thereof, the would indemnify defendant if required; legal title remains in the vendor. but no bond was given. Defendant's Damages for opening a highway through counsel then moved for a non-suit, on the

such land should be awarded to and all ground (among others) that the indemni

releases should be made by the vendor.

Costs. ty provided by statute in actions upon lost negotiab e notes, 2 R. S., 406, had not

This action was brought for an alleged been offered.

trespass on plaintiff's lands. The Court directed a verdict for plain

In May, 1872, plaintiff executed to one tiff without requiring him to deliver the Spring a contract in writing for the sale bond.

and conveyance of said lands, and Spring

went into possession of the same under S. S. Harris, for respt.

said contract. In 1873, Spring being still Samuel Hand, for applt.

in possession, made an oral agreement Held, error: That plaintiff was bound with one D. for the sale thereof, and D.

paid $500 down and went into possession cognizance, because the title to real propof said lands with Spring

erty came in question (Code, $ 54, sub. 2, The lands were assessed to S., and he $ 55). In such cases costs are allowed to and D. continued to occupy the same the plaintiff, of course (Code, S 304, sub. until 1874. In December, 1873, proceed- 3). ings were taken to lay out a highway For this error the judgment must be through said lands, and D. and wife, then reversed and a new trial granted, costs to being in possession, by an instrument abide the event. under seal released all claim for damages Opinion by Gilbert, J. by reason of laying ont such highway. Spring also executed a similar release.

Sometime in April, 1874, Spring and ESTOPPEL. FORMER JUDGMENT. D., although they had paid $500 on the

PLEA IN BAR. land, suffered Smith, the plaintiff, to re

U. S. SUPREME COURT. take the same. The defendant is the

Gould, executrix v. Evansville & CrawCommissioner of Highways or Street Su

fordsville Railroad Company. perintendent of the village in which said lands are situated.

Decided January, 1876. Defendant entered upon the lands to

When a former judgment is set up in

bar of a pending action, it is not construct the highway, and this action

required to be pleaded with any was brought for the trespass. There was

greater strictness than any other plea a verdict for plaintiff for $150.

in bar. On the trial the court charged the jury In the plea of a former judgment, that unless they found a verdict of at the parties and the cause of action least $50 it would not carry costs.

being the same, the prima facie preThe main question was, whether under

sumption is that the questions prethe holding of S. and D. of the land in

sented for determination are the

same unless it appears that the merits suit they were, within the intent and

of the controversy were not involved meaning of the statutes, owners, &c. in the issue. Cheeseman & Davison, for respt.

A judgment rendered upon a demurMartindale & Oliver, for applt.

rer to the declaration or other plead

ing in chief, is equally conclusive of Held, We are of opinion that the term the matter confessed by the demurrer owner of the land " was used in the sta as a verdict finding the same facts tute applicable to this case (1 R. S. 515,

would be. If, however, the plaintiff $ 64), as amended in 1847 (2 Lans. 1847,

fails on demurrer in his first action,

for the omission of an essential al p. 588), in its ordinary acceptation, and

legation in his declaration, which is imports the person who is entitled in law

fully supplied in the second suit, the to the legal estate in the land. The ven judgment in the first suit is no bar dee in this case had no estate in the to the second lands. He was not, therefore, “owner of Error to the Circuit Court of the the land” within the meaning of the sta- United States for the District of Indiana. tute, whatever other ownership the con This was an action of debt commenced tract conferred upon him.

by the plaintiff's testator in his life time The court fell into an error in inform- to recover the amount of a judgment ing the jury that the plaintiff must re- which the testator of the plaintiff, as he cover $50 to entitle him to costs. The alleged, recovered on the third of August, action belongs to a class of which justices 1860, against the defendant corporation, of the peace are prohibited from taking in the Supreme Court of the State of

New York, by virtue of a certain suit ration in that case, as in the present case, therein pending, in which, as the defend- alleged that the court which rendered the ant alleged, the court there had jurisdic- judgment was a court competent to try tion of the parties and of the subject- and determine the matter in controversy, matter of the action; and he also alleged and that the judgment remains in full that the judgment still remains in full force, un reversed and not paid. force and not in anywise vacated, re Superadded to that, the defendants in versed, or satisfied. Defensive averments, the present suit allege, in their plea in of a special character, are also contained bar, that the plaintiff averred in the forin the declaration, to which it will pres- mer suit that the said Evansville and Ilently become necessary to refer in some linois Railroad Company, by virtue of a detail, in order to determine the principal law of the State of Indiana, consolidated question presented for decision. Suffice their organization and charter with the it to remark in this connection, that the organization and charter of the Wabash testator of the plaintiff alleged, in con- Railroad Company, and that the two comclusion, that by virtue of the several alle- panies then and there and thereby, begations contained in the declaration, an came one company by the corporate name action had accrued to him to demand and of the Evansville and Crawfordsville Rail. have of, and from the defendant corpora- road Company, and that the consolidated tion the sum therein mentioned, with in- company then and there by that name, terest from the date of judgment. took possession of all the rights, credits,

Service was made, and the corporation effects, and property of the two separate defendants, in the suit before the court, companies, and used and converted the appeared and pleaded in bar of the action same, under their new corporate name, to a former judgment in their favor, ren- their own use, and then and there and dered in the County Circuit Court of the thereby became and were liable to


all State of Indiana, for the same cause of the debts and liabilities of the first named action, as more fully set forth in the railroad company, of which the claim of record, from which it appears that the the plaintiff in that suit is one; that the testator of the present plaintiff, then in plaintiff also averred that the consolidated full life, impleaded the corporation de company from that date directed and fendants in an action of debt founded on managed the defence wherein the said the same judgment as that set up in the judgment was rendered, and that the act present suit, and alleged that he, the of consolidation and the aforesaid change plaintiff, instituted his action in that case of the corporate name of the company, in the Supreme Court of the State of were approved by an act of the LegislaNew York, against the Evansville and Il- ture of the State, and that the consolilinois Railroad Company, a corporation dated company became and is liable to created by the laws of the State of Indi- pay the judgment, interest, and cost; and ana, and that the said corporation de that a copy of the judgment and profendants appeared in the suit by attorney, ceedings mentioned in the declaration in and that such proceedings therein were that suit, as also copies of all the acts of had that he, on the third of August, 1860, the Legislature therein referred to, were recovered judgment against the said cor- duly filed with said complaint as exhibits poration defendants for the sum therein thereto, and that the corporation defendmentioned, being for the same amount, ants appeared to the action and demurred debt and cost, as that specified in the to the complaint, and that the court susjudgment set up in the declaration of the tained the demurrer and gave the plaintiff case before the court, and that the decla- leave to amend.

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