ed beyond what was necessary for that The bill charges the defendant with purpose, or that he received any injury acts of extreme and repeated cruelty inby resisting. There was ::lso evidence flicted upon the person of the comshowing that the train was in motion plainant, and also alleges desertion for at the time.

the space of two years. Held, That under the circumstances, To the bill the defendant put in an it was questionable whether the request answer in which he de: ied each and to charge was applicable, that if it was, every charge therein contained. He it was sufficiently covered by the charge also filed a cross bill, in which he chargalready made; that if the train was in ed the complainant with desertion, witomotion, the law of self-preservation out cause, for more than two years, upjustified plaintiff in repelling any at- on which ground he he prayed for a ditempt to eject him which would endan-vorce. To the cross-bill the complainger his life or subject him to great haz- ant put in an answer denying the ard and peril. 23 N. Y., 343. Towns- charges therein contained. Replications end v. N. Y. C. & H. R. R. R. Co., 56 having been filed, a trial on both bill N. Y., 295, distinguished.

and cross-bill was had before a jury, Judgment of General Term, affirm- which resulted in a verdict in favor of ing judgment on verdict for plaintiff, the complainant in each of the cases attirmed.

presented by her bill, and against the Opinion by Miller, J.

defendant on the cross-bill. The court,

on motion, set aside the finding in the EVIDENCE. PRACTICE. charge of desertion, but sustained the

SUPREME COURT OF ILLINOIS. verdict as to extreine and repeated cruNicholas Berdell, applt. v. Catharine elty. A decree was therefore rendered Berdell, respt.

dissolving the marriage and dismissing Decided June 30, 1876.

the cross-bill; to reverse which this apIn an action for divorce on the ground peal has been brought by the defendant

of cruelty, bruises and marks ob- in the original bill. served and sworn to by witnesses are competent testimony in confirmation married in 1855, and resided together

The complainant and defendant were of the evidence given by the plainant.

in Cook county until 1851, when the It is the province of the jury to recon- wife left the home of her husband, and

cile the conflict of proof, and deter- they have not since resided together. mine from all the evidence whether

The complainant claims that the the truth is on the side of the complainant or of the defendant; and cause of her leaving was on account of when this has been done, free from repeated acts of personal violence re passion and prejudice, and the rec-ceived from her husband; while, on the ord contains evidence sufficient to other hand, it is claimed she was well sustain or justify the result, the ver-treated, and deserted her husband of

dict must be regarded as final. Evidence of complainant's good char- her own accord, and not through any

acter, her character not being at is- improper treatment on his part, is inadmisible.

The complainant, in her evidence, This was a bill for divorce brought (testifies to numerous acts of personal by Catharine Berdell against Nicholas violence on the part of her husband, Berdell, her husband.

which were unjustifiable and without


cause or provocation; and, if her evi- final. As was said (Coursey v. Courdence be true, there can be no doubt sey, 60 Ill. 186) the jury had the witbut a clear case of divorce was estab- nesses before them, and have passed uplished. But, independent of her evi- on the weight of evidence. dence, on several occasions the marks It is, however, argued that the court of violence were discovered on her per- erred in permitting the complainant to son by her neighbors; often she com- introduce evidence of good character in plained of having received blows from the neighborhood where she resided. her husband.

Held, error. That while it is true Held, That while this character of the defendant introduced, on the trial, evidence is not as satisfactory as if wit- evidence of specific acts of the comnesses had been produced who saw the plainant tending to reflect upon her blows given, yet the bruises and marks character for sobriety and modest, observed and sworn to were competent peaceable behavior, yet, under the rule testimony in confirmation of the evi- announced by Starkie, we do not underdence given by the complainant. stand that she had the right to rebut by

It was also proven, that on two occa- proof of general good character. Her sions, when the complainant returned general good character was not in issue. to the house of the defendant, he al- But it was of no intrinsic strength or lowed her to be assaulted in his weight;" and for that very reason it presence; and in his own honse, on one could do the defendant no harm. occasion, as the evidence shows, pushed Decree affirmed. down stairs; and on another, her hair Opinion by Craig, J. was torn from her head, and her clothing badly injured by an inmate of the CONSIDERATION. house, while, as one witness testifies, N. Y. SUPREME COURT. GENERAL TERM, the defendant held the complainant so

FOURTH DEPARTMENT. she could not defend herself. The defendant, in his evidence pos- A. Harrington et al., applts.

George F. Barton, respt. v. Shelby itively denied every and all acts of violence, and said that he never in

Decided April, 1876. any manner mistreated or abused the The trouble and expense to which a par

ty is subjected in following the dicomplainant, and testified to miscon

rections of a contractor in respect to duct on her part, and introduced other

the time and place of filing his claim evidence tending to establish the truth against a sub-contractor, is a sutjiof his own.

cient consideration to support a Held, That it was the peculiar prov.

promise on the part of the contractor ince of the jury to reconcile the conflict

to pay the debt of the sub-contractor. of the proof, and determine from all

This action was commenced in a justhe evidence whether the truth was on

tice's court. the side of the complainant or the de

The plaintiff had judgment and there fendant; and when this has been done, was an appeal to the county court, free from passion or prejudice, and the a new trial had, and judgment for record contains evidence sufficient to the plaintiff. sustain or justify the finding, the re

The defendants appeal to this court. sult of the verdict must be regarded

The defendants made a contract to

build a railroad and sublet a portion the Union Trust Company, as receiver, of the work to others, who employed to pay over to plaintiffs an accumulathe plaintiff to labor for them. The tion of rents in its custody before any plaintiff, before his pay was due, pre- final judgment in the action as to the sented his claims for wages at the de- rights of the parties, on their underfendants' office, and was told by the taking to repay the same into court person in charge, one of the defend- if so ordered. ants, that the claim was all right and if The rents were collected from prophe wished to have him or the contrac-erty to which defendant, when the actors holden for the same he should take tion was commenced, had the legal tithe papers to Naples and have them tle. His title thereto had been set aside filed in the company's office. That the and his rights reduced to those of a company, defendants, were good for the mortgagee in possession. An accountdebt, and will pay every dollar of it ing directed by the decision is now prowhen due, on the 15th of February. gressing The plaintiff did as directed.

The Union Trust Company had been Briggs & Knox, for respt.

appointed receiver of the rents and E. B. Potter, for applt.

profits of the property on plaintiff's Held, That the promise of the de- motion, defendant consenting. fendant was a new one, formed on a Stephen P. Nash, for applt. new and independent consideration. Ilm. R. Martin, for respts.

The judgment of the county court lleld, That the rents disposed of by was right, and must be affirmed.

the order, having been paid into court Opinion by Mullin, P.J.

by consent of defendant, were subject to its control and direction, and it there

fore rested in the power of the court to POWER OF COURT. APPEAL. determine what disposition should be

N. Y. COURT OF APPEALS. made of them pending the accounting. Platt et al., ex’rs., &c,, respts. v. It had power to make plaintiffs receivPlatt, applt.

er of the fund instead of the receiver Decided June 6, 1876.

originally appointed, and, in the exerRents paid into court on application

cise of its discretion, to award that they of plaintiff's and by consent of de- be paid over to the party to whom the fendant, are subject to its control judgment gave a right to them, subject and discretion, and the court has to the defendant's equitable rights uppower, in the exercise of its discre- on such terms as might be proper untion, to award that they be paid over der the circumstances. to the party to whom the judgment

That even if the order involved a gave a right to them, subject to the rights of the other party.

substantial right it was, notwithstandAn order which, though involving a ing, discretionary, and was therefore substantial right, is discretionary, is not appealable. 59 N. Y. 315. not appealable.

Appeal dismissed. This is an appeal by defendant from Per curiam opinion. an order of the General Term affirming an order of Special Term, directing


the society, was not eligible to office, N. Y. SUPREME Court. GENERAL Term. and that his election was therefore a FIRST DEPARTMENT.

nullity, called upon the President to Matter of Hebra Hased Va Emet. convene a meeting of the society for a Decided May 1, 1876.

new election of Secretary. He de To remove a duiy elected officer of a

clined to comply. They then applied society, because of allegedl ineligibil- to this court for a writ of mandamus ity, the proper mode of proceeding to compel such an election. is by quo warranto, and not by man Gratz Nathan, for applt. damus to compel a new election.

Adolph L. Sanger, for respt. Appeal from order of Special Term

On appeal. denying motion for mandamus. The

Held, That the writ was properly Hlebra Hased Va Emet (Society of denied. It was not the proper remedy Mercy and Truth) is a benevolent or- for the alleged wrong. The opinion of ganization, whose object is the “secur- the court below, which we adopt, sets ing and performance of the rites and forth the reason clearly, as follows, ceremonies practiced among Israelites viz.: as respects the dead.” By the By.

That it is a case of plenarty, and the Laws of the society, “any seat-holder only mode of proceeding is by quo in the congregation “Shearith Israel,' warranto (34 Eng. L. & E. 59; 7 Ad. not married contrary to the religious & E. 215). laws of Israelites, may be elected a The charter of the society does not member of the society," but that any in terms declare the election of an unviolating such laws of marriage, or qualified person void, and that is the discontinuing their seats in the syn- test (1 M. & S., 76; 2 Burr., 1,016). agogue should forfeit their member- Hence Mr. Hendricks fills the office de ship. The officers, including the Sec- facto, until ousted by judgment at the r. tary, were to be elected from among suit of the People, (6 Cow., 23). We the members, on the first Sunday of the are he:e asked, wit:out hearing the Jewish month Tebeth, but if no elec- party to be affected, to adjudge that he tion then took place, the old officers is neither member nor officer, for the were to remain in office, until an elec- mandamus could not in any event issue, tion should be had some time in that unless the court was prepared to say month.

that both of these questions were enIsaac Hendricks held the office of tirely free from doubt. Secretary during the past year, and at

Mandamus denied. the election for this year, was Order of the Special Term affirmed. elected. Some days prior to this elec

Opinion by Davis, P. J.; Brady tion he had discontinued his seat in the and Daniels, JJ., concurring. synagogue “Shearith Israel,” though he still remained a member thereof,

LIFE INSURANCE.. WAIVER. and he was not dismissed from the

N. Y. COURT OF APPEALS. society IIebra, &c. Certain members of this society, claiming that by reason Merseran, admrx. &c., respt., v. The of his discontinuing his seat in the syn- Phenix Mutual Lire Ins. Co., applt. agogue, he was no longer a member of

Decided May 30, 1876.


Insurance companies doing business by previously and regularly signed re

agencies are responsible for the acts ceipts. The judge left it to the jury of an agent within the general scope to say whether there had been a waiver of the business in his charge, and no limitation of his authority will be of payment of the premium. binding on parties with whom he Samuel Hand, for applt. deuls which are not brought to their R. E. Andrews, for respt.

knowledge. But where insurell has knowledge of

Feld, (Church, Ch. J., Andrews the limitation of the agent's author and Miller, JJ., dissenting), error. ity, he is estopped from claiming That the authority of the agent that the agent could contract with being limited as to the receipt of him so as to change the terms of the the renewal premiums, and this being policy or waive performance of its conditions.

known to the insured, he was estopped

from claiming that W. could, as agent This action was brought upon a poli of defendant, contract with him so as cy of life insurance. The defense

to change the terms of the policy or interposed was the non-payment of the semi-annual premium, due August 31, conditions ; that to establish a waiver,

dispense with the performance of its 1872. By the terms of the policy, the

evidence was necessary to justify the liability of the insurer ceased upon the

belief that the company, by direct failure of the insured to pay the renewal premiums at the office of the authority, enlarged the agent's powers

or knowingly permitted him to act for company, at Ilartford, Conn., or to an agent of the company on his producing nally conferred. 33 N. J., 487; 25

it beyond the scope of the power origia receipt signed by the President or

Conn. 542. Secretary on or before the days at

Also held, That insurance compa vhich they were payable. Plaintifi proved that in July, 1872, the insured nies, doing business by agencies, are resaw W., defendant's agent at IIudson, sponsible for the acts of the agent, N. Y., and offered to pay the premium intrusted to his care, and no limitations

within the general scope of the business to become due Aug. 31, 1872, that W.

of his authority will be binding on pardeclined to receive the money because he had not the company's receipt, and ties with whom he deals which are not told the insured that he would keep 560; 51 N. Y., 117; 26 Id., 460; 57

brought to their knowledge. 20 Wall., him good with the company. W. was defendant's local agent at Iludson, and

Barb., 519; 10 Abb. (N. S.), 166. was authorized to solicit insurance, re

Judgment of General Ter, affirmceive and forward applications to the ing judgment on verdict for plaintiff,

reversed and new trial granted. general managers at Albany, and on

Opinion by Allen, J. receipt of the policy, to deliver it and collect the premiums and renewal pre- COMMON CARRIER. AGENT. miums, when he had the receipt of the Co... pany, and upon delivery of the N. Y. SUPREME Court. GEN’L TERM.

FOURTH DEPARTMENT. same to the insured. The policy contained a notice to the effect that the Armstrong, applt. y. American Exagent was only entitled to receive the press Company, respt. semni annual renewal premiums upon Decided Jue, 1876.

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