view of the learned justice at the trial judgment for $1,200, and the defendant was erroneous, and a new trial should appealed. be granted. The plaintiff was entitled to have the issue passed upon created by the amendment allowed upon the trial, namely, whether or not the defendant's testator was a joint contractor with Harrison, and there must therefore be a new trial; costs to abide the event. Opinion by Brady, J; Davis, P.J. and Daniels, J. concurring. CIVIL DAMAGE ACT. Appellee's husband had, for years, been drinking to excess at appellant's drinking saloon, and continued to drink there up to the time he became insane, June 21st, 1874. He was sent to the insane Asylum at Elgin in July, 1874, and remained there under treatment until sometime in April, 1875, when he was released and returned home. The averment in the declaration is, that the defendant sold and gave to Eppy intoxicating liquors, "and thereby caused him, the said George Eppy, to William Roth, applt., v. Mary Eppy, become, and he was during that time respt. Decided June 30, 1876. before named, habitually intoxicated." It is claimed this is an averment that the intoxication was caused in whole Where it was alleged that the intoxication wascaused in whole by the defend-by the defendant, and that such must ant, and the proof was that the intox be the proof; that it is not sufficient ication was caused only in part by the that the intoxication was caused in defendant, held, that a recovery part by defendant; and that the most might be had. which the proof shows, is that defendant caused the intoxication in part. What constitutes intoxication is a question of fact, to be determined by the jury upon the whole evidence, Held, The statute gives the right in the light of their own observation. of action where the defendant shall As bearing upon the question of dam- have caused the intoxication in whole ages, it was proper to show any want of, and inability to obtain, employor in part. (See N. Y. R. S. Part I, ment, in consequence of Eppy's pre Chap. 20, Title 10, Ed. W. Dig.) vious habits of intoxication. Contracts are entire, and must be proved That to support a finding of exemplary substantially as alleged, but torts are damages, there must be a finding of divisible, and in them the plaintiff may actual damage, and that without this, exemplary damages cannot be prove a part of his charge and recover, if there be enough proved to support the tort. Hite v. Blanford, 45 Ill. 9. awarded. This was an action on the case, brought on September 24th, 1874, by Mary Eppy, under the liquor act, against William Roth, to recover for injury in her means of support, in consequence of the habitual intoxication of her husband, George Eppy, from intoxicating liquors sold and given to him by Roth. The plaintiff in the court below recovered a verdict and It was insisted that the evidence fails the part of George Eppy. to show any habitual intoxication on It was conceded by appellant's counsel that the insanity of Eppy was caused by long continued excessive use of alcoholic liquors, that he had been in the habit of using intoxicating liquors to excess for many years, but it was denied that it was to the extent of being habit-proceeded on the hypothesis that actual ually intoxicated. damage had been proved, it was not in conflict with Frieze v. Tripp, 70 Ill. 496. There was a conflict of testimony as to the opinions of witnesses, whether at the various times testified to, the condition of Eppy, from the liquor he drank was one of intoxication or not. The testimony of some of the witnesses was, that they frequently saw Eppy at defendant's place intoxicated. Other witnesses stated his condition as verging on but not amounting to actual intoxication. Held, The question was one of fact for the determination of the jury, uppon the whole evidence in the light of their own observation. The decision of the question should rest with the finding of the jury, no sufficient reason appearing for disturbing it. Eppy having recovered, he returned home from the insane asylum in April, 1875, and inquiries were made of witnesses as to his efforts to get employment, to obtain his former situation as locomotive engineer on the railroad, and his inability to do so. Exception was taken to such inquiries, which were permitted. Judgment affirmed. Opinion by Sheldon, J.; Breeze, J., dissents on the ground that the dam• ages are excessive. ACTIONS AGAINST RECEIVERS SUPREME COURT OE Iowa. Allen, applt. v. Central Railroad Company of Iowa, respt.. (December, While a court of equity will, on a 1875.) proper application, protect its own receiver, when his possession is sought to be disturbed, and while a plaintiff desiring to prosecute a claim against the receiver might, very properly, obtain leave to prosecute, yet his failure to do so is no defense to his action on the trial thereof, and especially so where there is no attempt to interfere with the possession of the receiver, but only to obtain a judg ment on a claim for damages. This was an action for damages in being ejected from a car by one of defendant's employees. The petition showed that plaintiff, on Held, That as bearing on the question of damages, it was proper to show the 18th of January, 1875, purchased of the ticket agent of defendant, at any want of and inability to obtain employment in consequence of Eppy's Albia, a ticket from Albia to Oskaprevious habits of intoxication. The loosa. The conductor, before the train inquiry as to his desire for intoxicating liquors should have been excluded, but the refusal to exclude the inquiry was not of sufficient importance to amount to a fatal error. The third instrnction for the plaintiff was that under its hypothesis, the jury had a right, if they thought proper, to allow the plaintiff such punitive damages as they thought the evidence arrived at Eddyville, took up plaintiff's ticket, and afterwards demanded of him the fare from Eddyville to Oskaloosa, and upon his refusal willfully and maliciously ejected him from the train. The answer denies all the allegations of the petition, and alleges that on the 7th day of January, 1875, one D. W. Pickering was duly appointed receiver of the defendant, with full powers, by the Judge of the Circuit Court of the United States for the District of Iowa, warranted. and that it was ordered that he take Held, no error; that as the court charge of all the property, income, &c., of defendant, and that he pay no debts roneous; that the court did not, in this or expenses except to operate the road, without special orders; that he accepted and entered upon the discharge of his duties, and has operated the road since January 7th, 1875. Plaintiff demurred, but the demurrer was overruled, and he thereupon filed a reply denying every allegation of the answer. On the trial the judge instructed the jury as follows: instance, nor in any other, direct the jury that defendant was not liable for wrongs done whilst the road was in the hands of a receiver; that the instruction impliedly rec gaizes this liability, but directs that the action cannot be prosecuted against defendant unless leave has been given to do so by the court appointing the receiver. That while it is admitted that a court of equity will, on a proper application, "The foregoing instructions are giv-protect its own receiver, when the posen upon the theory that plaintiff is en- session which he holds under the authortitled to maintain this action, but if you ity of the court is sought to be disturb find that at, and before, the commission ed, and while a plaintiff desiring to of the alleged injury, by a decretal prosecute a legal claim for damages order of the United States Circuit against a receiver might, in order to reCourt, the defendant corporation passed lieve himself from the liability to have into the hands of a receiver, and that his proceedings arrested by an exercise in said order, among other things, it of this equitable jurisdiction, very propwas decreed That said receiver take erly obtain leave to prosecute, yet full charge of all the property, income, the failure to do so is no bar to the profits, earnings and receipts of said jurisdiction of the court of law, and no Central Railroad Company of Iowa, and that the said receiver pay out of the income, receipts and earnings of the road, no debts or expenses of any kind, without special order * * defence to an otherwise legal action on the trial, especially where there is no attempt to interfere with the actual possession of the property which the except receiver holds under the order of the such as shall become due, belong to, court, but only an attempt to obtain a and come within the category and judgment on a claim of damages. Kincharacter of operating expenses of the ney v. Crocker, rec'r, 18 Wis. 74; road,' and you further find that no leave Paige v. Smith, 99 Mass. 395; Hills v. has been asked and given to prosecute Parker, 111 Mass. 508; Camp v. Barthis case, as against defendant, to and ney, 11 N. Y. 373. by the United States Circuit Court, Judgment reversed. then you will find for defendant; but Opinion by Day, J. if such leave has been given, or no such order or decree has been entered and made, and no such proceedings had, then you will not consider this branch of the case." There was a verdict and judgment for defendant, from which plaintiff appeals. Held, That the instruction was er RAILROAD COMPANIES. DAM. N. Y. COURT OF APPEALS. Decided June 6, 1876. vides that the railroad company contained an express provision to that should assume the usual risks upon effect. 15 N. Y. 444. express matter, except that it should Smith v. N. Y. C. R.R.Co. 24 N. Y. 222; not assume any risk or loss upon Bissell v. 66 any money, &c., for which, with the 66 66 66 25 Id. 442; 49 Id. 263; 32 Id. 333; express company's safes and messen- Poucher v. " gers, no charge for carriage was to Stinson v. be made and the latter were to ride and Eaton v. D. L. & W. R.R. Co. 57 free, will not protect the railroad Id. 382 distinguished. company from liability for negli-. gence of its employees, by means of which one of the messengers is killed. Such protection can only be invoked where there is an express provision to that effect in the contract. It seems that a person employed temporarily in the place of the messenger would stand in the same position. Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed. Opinions by Miller and Allen, J.J. FOURTH DEPARTMENT. An agent of an insurance company This action was brought to recover damages for the death of plaintiff's intestate which was alleged to have been caused by the defendant's negligence. FIRE INSURANCE. WAIVER. Defendant claimed that it was not N. Y. SUPREME COURT. GEN'L TERM. liable, upon the ground that the deceased, who was a messenger of the U. S. Express Co., was bound by the terms of a contract between said company and defendant. This contract originally provided that defendant should transport free of charge the money-safes, contents, and messengers of the express company, defendant "assuming no liability whatever in the matter." This was subsequently modified, and it was provided that defendant should assume the usual risks upon express matter, except that it should not assume any risk or loss upon any money, &c., for which, with the express company's safes and messengers, no charge for carriage was to be made, and the latter were to pass free of charge. policy, even where the policy requires any waiver to be endorsed on the policy. This is an action on a policy of insurance. Plaintiff was owner of a mill on which plaintiff and several other companies had policies. The mill had been owned by H. & A. and they sold to plaintiff. Plaintiff, after the sale, took all of his policies to defendant's agent, who was also agent for other companies, to obtain consent to the transfer of such property. Defendant's agent took the policies and made endorsements E. C. Sprague, for applt. on some and entries in his books and Geo. B. Bradley, for respt. handed all back to plaintiff. Plaintiff Held (Earl, J., dissenting), That de- supposed defendant's policy was enfendant could not, under the contract, dorsed with the rest, as it was handed claim to be protected from liability to the agent with the others and examfor negligence on the part of its em- ined by him, but after the fire it was ployees; that such protection could discovered the policy was not so endorsonly be invoked when the contracted, and defendant's agent made no mem orandum of it. The policy contained ment in favor of plaintiffs against one the usual condition as to change of Henry S. Leszynsky. title, and that such consent must be The answer sets up for defence that endorsed on the policy. Defendant's agent acted under a written commission and had all the powers of an Insurance agent. There was a verdict for plaintiff. Thayer & Benedict, for respt. Held, That an agent authorized by an insurance company to accept risks, to agree upon and settle terms of insurance and to carry them into effect by issuing and renewing policies, is a a general agent, and as such he has power to waive a condition in the policy that any waiver of any condition in the policy must be in writing and endorsed on the policy, and such waiver may be by parol. Judgment affirmed. SURETIES ON UNDERTAKING. FIRST DEPARTMENT. Samuel T. Knapp, et al., respts., v. Orrin B. Anderson, et al., applts. after the rendition of the judgment against Leszynsky, and before its affirmance by the General Term upon the appeal taken therefrom, Leszynsky, the judgment debtor, was duly discharged from all his debts under the provisions of the U. S. Bankrupt Act of 1867, and debt of a character not excepted from that the judgment was founded upon a the operation of said act. The plaintiffs demur upon the ground that the answers do not disclose a sufficient defense. The only question presented upon the appeal was whether the discharge of Leszynsky, the principal debtor, before the affirmance of the judgment, releases the sureties upon the undertaking on appeal. John A. Mapes, for respts. Held, That whether the sureties are discharged or not depends upon the effect of section 33 of the Bankrupt Act, which provides as follows: "No discharge granted under this act shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, contractor, endorser, surety or otherwise.” Decided July 6, 1876. The discharge of a bankrupt judg ment debtor from a judgment from That the view taken by the appelwhich an appeal is pending, and be- lants and defendants that they were fore its affirmance upon such appeal, not liable until the affirmance of the does not discharge the sureties upon the undertaking on appeal given to stay proceedings upon the judgment pending the appeal. judgment is erroneous. That the discharge of the principal under the U. S. Baekrupt Act does not release the sureties upon the undertaking, and that the order appealed from must be affirmed. Opinion by Brady, J.; Daniels J., Appeal from an order sustaining the plaintiffs, demurrer to the answer, with liberty to the defendants to answer. Action brought upon an undertaking concurring. on appeal given by defenda ts to stay proceedings upon appeal from a judg |