extensive reach to protect the plaintiff's
rights. If the defendant has been dishonest
in the transaction, plaintiff may disregard
them all and sue directly for the fraud, James H. McVeigh.

Alexander M. Earle, et al., applts., v.

and give parol evidence of the representations, though they are not noticed in the written contract. 13 J. R., 325; 18 Wend., 193.

Defendant claimed that plaintiff was not the real party in interest and could not maintain this action, that C. did not purchase the engines as agent for plaintiff, or assume to act as such agent, and that the money paid by C. has not been repaid to him by plaintiff, and that the papers which passed between C. and defendant showed that C. dealt as a principal, and that parol proof that he acted as an agent, was incompetent. It appeared from the evidence that C. was plaintiff's agent, and that it authorized him to purchase the engines.

Held, That as C. acted as plaintiff's agent, all loss resulting necessarily from the transaction was plaintiff's loss, and it could enforce all rights of action acquired thereby against defendant, whatever ob ligations and liabilities arose in the transaction from plaintiff to C. 15 East 62; 2 Smith's L. Cas., 342; 9 B. & C., 78. Plaintiff had a r ght to intervene and take to itself the transaction, and to show by parol that it was the real party in interest. The referee received evidence of witnesses, who saw the engines, at a place distant from that of sale, some time thereafter, as to thei value. It appeared that they were then in the same condition

as at the time of sale.

Held, no error; that the value of the engines was not governed by the state of the market at a particular time; but as to such property the whole country is but a single market.

Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Folger, J.

Decided October Term, 1875.

Due notice, actual or constructive, to the defendant, is essential to the jurisdiction of all courts. What is a good notice under a statute providing for constructive process, decided.

Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

Two suits were commenced by the plaintiff against the present defendant, and the plaintiff thereon obtained service of process in the respective suits on the same day, in the words following: "Executed the within summons February 24, 1862, on James H. McVeigh, by leaving a copy thereof posted at the front door of his usual place of abode, neither he nor his wife, nor any white person who is a member of his family, and above the age of sixteen years, being found at his said usual place of abode."

The defendant not appearing, judgments were rendered against him.

It was admitted that defendant had been for many years a resident of the place where the process was served; that he was the head of a family, owning the dwelling in which he resided; that he, together with his family, left their house seven months prior to the alleged service of process, owing to the threatened occupation of the town by the Federal force went within the Confederate lines and there remained until the close of the war; that his absence from the town was not one which he regarded as absolute and permanent, but contingent and temporary, depending for its continuance upon the fortunes of the war. It also appeared he had left no white person in the house, and that these facts were known to the plaintiff's attorney, and to the officer who made the return.

The statute provides for service of pro- of the debtors of the estate, in Confedecess upon resident defendants, temporarily rate money, and pay it over to the reabsent from home, by delivering a copy, ceiver of the Confederate States. When and giving information of its purport to this was done the country was under his wife, or any white person found at his complete military rule, and he acted, conusual place of abode, who is a member of trary to his wishes, under Confederate his family and above the age of sixteen authority, which he was compelled to obey. years; or if neither he nor his wife, nor This, he claimed, excused him from any such white person be found there, by accountability to the plaintiff or this leaving such copy posted at the front amount, and the Supreme Court of the door of his usual place of abode. State has so decided.

The question now raised is whether the judgments are valid.

Held, That the service was insufficient; that it appeared by the evidence that the house was not the usual place where the defendant or his family resided at the time the notice was posted; that usual

place of abode did not mean last place of LIFE INSURANCE. FALSE STATE

abode; that the law intends that the person against whom the notice is directed, should then be living or have his home in said house, although temporarily absent. Decree setting aside judgment affirmed. Opinion by Clifford, J.



Charles Rockhold, plf. in error v. Thomas Rockhold, et al., defts in error.

Decided October Term, 1875.

A claim by a trustee, that he was com pelled to pay over the trust funds to the Confederate States, when the country was under military rule, is not a Federal question, and will not give this court juris iction to review a decision of the state court.

H, This is not a Federal question, and the motion to dismiss the case for

want of jurisdiction must be granted.


Opinion by Waite, C. J.



The Etna L. I. Co., plff. in error v. France, deft. in error.

Decided October Term, 1875.

A life insurance policy, containing a clause providing it shall be void, if the answers made to questions by the insured in his application, are found to be false in any respect is wholly avoided by a false answer whether it be material or not.

In such case neither the court nor the jury can inquire into the materiality of either the question or answer. Error to U. S. Circuit Court, Eastern District of Pennsylvania.

Action of assumpsit to recover $10,000, the amount of a policy insured upon

In error to the Supreme Court of the the life of Andrew J. Chew in 1865. AnState of Tennessee. nexed to the policy and made part of it, was the application of Chew containing the questions and answers usual in such

This suit was to bring the executors of the will of Thomas Rockhold to an account with the plaintiff, Charles Rock- applications. hold, one of the legatees. The defendant, The policy contained the following

William D. Blevins, one of the executors, answering the bill, said, in substance, that, contrary to his wishes, he was forced by a military power that he could not control, to receive the sum of $5,004.74 from one

clause. It is understood and agreed, that if the proposals. answers, and declarations * shall be found in any respect false or fraudulent, then and in such case this policy shall be null and void.

* * **

Among others were the following questions and answers:

Question. Age next birth day?

Answer. 30 years.


Question. Has the party ever had any of the following diseases? rupture (and others)?

Answer. None.

The defendants are a Mutual Insurance Company. In September, 1847, they executed and delivered to the complainant at Philadelphia a sealed policy of insurEvidence was given on both sides tend-ance in $5,000 upon his life, payable to ing to show that Chew was 37, or at least his wife. The premium paid was $155 50. 35 years old when he signed the applica- The insurance was for a year, with the privilege of continuing it from year to Evidence was also given upon the ques-year on payment of a premium of equal tion of his having suffered from a rupture. amount before the end of each year. The


The Court left it to the jury to say policy contained a provision that if the aswhether the rupture (of which it was con-sured should not make the annual payceded the insured at one time suffered) ments on or before the several days apmaterially affected the soundness of his pointed, then, and in every such case, the health, at the time of application, or defendants should not be liable to the paywhether it was so far recovered, or was so ment of the sum insured or any part remote as not to have increased the risk thereof, and the policy should cease and or the premium if mentioned, or whether determine, and all previous payments the suppression of its existence was wil- made thereon, and all profits for which fnl, and as to the age, the Court charged scrip should not have been issued, should that the representation must be material, be forfeited to the defendants. but that if the insured was 35 the difference would not be immaterial.


Held, That the question of materiality of the answers did not arise; that the parties had determined and agreed that they were material; that their agreement on that point was conclusive, and that the only questions for the jury were: first, were the representations made; second,quently; and made it unlawful for the were they false, and that the Court err d defendants to receive any such payment in submitting the question of materiality during the continuance of the hostilities. to the jury.

The complainant continued to pay the annual premiums punctually at Philadel phia until 1861, when the whole sum thus paid had amounted to $2,177. He was a resident of the State of Virginia. The civil war, which broke out in April, 1861, prevented him from paying the premiums in September, 1861, and subse

New trial ordered.

Opinion by Hunt, J.

which has been forfeited by reason of non payment of premiums, where payment of such premiums was impossible.



The defendants being in possession of the policy, treated the insurance as ended by reason of the non-payment of the premium in September, 1861; and wrote upon the policy that it was "forfeited" and "cancelled," obliterating the signaDIS-tures of their officers.

On the termination of the hostilities, Bird v. Penn Mutual Life Insurance the complainant, by a letter of 31st May, Company

Decided February 7th, 1876.

1865, expressed a desire to know what steps he must take to continue his insurance. On 9th June, 1865, they wrote in holder of a life insurance policy answer stating that "the policy of insur

A Court of Equity will reinstate the

ance was forfeited for non-payment of pre- of the City and County of New York,

mium in 1861, and will not now be re-respts.
vived by the company." In the following
year he renewed the correspondence, urg-
ing his right to be reinstated in the insur-
ance. They repeated, and never in any
wise qualified their original declaration.
that the insurance was forfeited. The
correspondence was closed in December,


The bill was filed on 2d July, 1874. Its purposes were that the policy, &c., still in the possession of the defendants, should be exhibited by them, that the complainant should be permitted to pay all the accrued premiums which are unpaid, that the policy be declared valid and to have remained in force, and that the defendants should account for all the dividends

which had been, or ought to have been declared upon it.

Decided February 1, 1876. Where, upon the return of an order to show cause why a mandamus should not issue, affidavits are presented on behalf of the defendant, upon which the relator takes no issue, but proceeds to argument, he admits the truth of the defendant's averments. What was once a claim against the County of New York, having become a liability of the city, the latter may be sued upon it and a man

damus will not lie.

The relator applied for a peremptory mandamus to be issued, commanding defendant to authorize stock of the County of New York to be issued in pursuance of

chap. 583, laws of 1871 § 4, for the purpose of raising moneys advanced and overdrafts paid by the relator to the Commissioners of the new County Court House in the City of New York. On the return of the order to show cause, affidavits were presented on the part of the Board to the effect that the loans and over-drafts, if made as alleged, were made by I., one of the commissioners, a director of the relator, withou authority from the Board of Commissioners, and the sums were not advanced to the commissioners but to I., the relator, well knowing that the money was not to be used for the completion of the Court House, and that it was not so used. The relator took no issue upon the allegations of the affidavits and papers presented by defendant, but proceeded to argument and asked for

Held, That the complainant was entitled to the relief demanded; that defendants should account to him for his share of the profits of its business since their last settlement; that whatever he may be entitled to should be deducted from the amounts of the premiums since 1861, with interest; that he pay the balance to defendant, and that defendant deliver the policy to complainant a peremptory mandamus, which was with as beneficial effect as if it had been cancelled or effaced.

awarded by the Special Term.

Henry H. Anderson, for applt.
John H. Strahan, for respts.

Opinion by Cadwalader, J.

The defendants, by their answer, and in argument, insisted that the insurance had been forfeited in 1861, that the complainant had never made any tender of the premiums in question, and that his delay to institute the present proceedings ought to preclude him from relief if he were otherwise equitably entitled to it.

Held, That the relator's action was equivalent to a demurrer to the defendant's averments. admitting the truth of them, but denying their sufficiency in law to prevent the issuing of the writ, 1




People ex rel. The Tenth National Wend, 474; and as defendant's papers Bank, applts. v. Board of Apportionment showed that the relator was not entitled

to the moneys claimed, no case was made would have been necessary to join her for the issuing of a peremptory writ, and husband with her in the action, and he the order at Special Term granting it was may still be so joined under the act of 1853, Chap 576, as held in Lenox v. Eldred, 1 N. Y. Sup. Court Rep., 142. But such joinder is not necessary or imperative. The execution would not go against the husband's property if he were joined as defendant, as at common law, but would only bind the separate property of the wife.


The Board of Apportionment of the city and county of New York has power to examine claims presented to it, and to exercise a judgment whether they are rightful before giving assent to provision for the payment of them.

Also held, That what was once, if the claim is legal, a liability of the county of New York has become a liability of the city, and the latter may be sued upon it. In such a case relief by mandamus will be denied.

Order of General Term, reversing order of Special Term granting a maudamus, affirmed.

Per curiam opinion.



Henry M. Helles et al., respts., v. Amy E. Rossele, applt.

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Decided January, 1876.

For goods purchased by a feme sole,
she may be sued after marriage
without joining her husband.
The action was for goods sold the de-
fendant, who was at the time a feme sole,
carrying on a separate business in her
own name and for her own account.
She afterwards married, and is sued by
her married name for au account made
with the plaintiff before marriage. The
referee held her liable to be sued alone,
without her husband, and gave judgment
for amount of the account, from which
defendant appeals to this court.

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The husband in such case is in no sense responsible for the debt, except in respect to the property of the wife which may come to his possession by the marriage. For this he would be liable to account in a proper proceeding against him, if the separate estate remaining in the hands of the wife should prove insufficient to discharge the judgment.

The judgment should be affirmed.
Opinion by E. Darwin Smith, J.



Malone, Adm'r'x, &c., respt. v. Hatha-
way, Surv'r, &c., applt.
Decided January 18, 1876.


master is not liable to his servant, for the negligence of a fellow ser vant who has not been negligently appointed.

Where a master has left the control of his business to an employe, reserving to himself no discretion, he is liable for the neglect or omission of duty of the one thus representing him.

This action was brought to recover damages for the death of plaintiff's intestate, who was an employe of the firm of B. & Co., of which defendant was the surviving member, and was killed while in

Held, the defendant was a feme sole when the debt was contracted, and liable to be sued as such upon the demand. Her the discharge of his duty, by the breaking subsequent marriage did not change her of a tub filled with boiling mash in the rights or liabilities in respect to said debt. defendant's brewery. The evidence tendAt common law after the marriage it ed to show that the fall of the mash tub

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