83

In Pennsylvania a tenancy at will is construed Held, That a transmissible interest vested in
to be a tenancy from year to year. Hey v. the children upon the issuing of the policy, and
McGrath.

250 that the child of the deceased child took by

descent the interest of its parent, and was en-
Where the sub-tenant purchases the title of titled to the portion of the fund which the par:
the paramount landlord, he is invested with all ent would have received if living. Continental
the latter's rights, including the power to deter. Life Ins. Co. v. Palmer et al.

00
mine the original lease.

Ib.

A life insurance policy, containing a clauso
The provision of law that an agreement not providing it shall be void if the answers made
to be performed within one year is void, does to questions by the insured in his application
not apply to contracts for leasing lands. Reeder are found to be false in any respect, is wholly
et ai. v. Sayre.

253 avoided by a false answer whether it be material

or not. The Ætna Life Ins. Co. v. France. 82
Parol lease, how it affects tenant from year to
year.

Ib. In such case neither the court nor the jury

can inquire into the materiality of either the
Tenant holding over ; tenant sowed crop un- question or answer.

Ib.
der an agreement; the landlord afterwards sold ;
tenant may reap.

Ib. A Court of Equity will reinstate the holder of

a life insurance policy which has been forfeited
Equity will relieve a lessee against forfeiture by reason of non-payment of premiums, where
for breach of a covent to repair when the land- payment of such premiums was impossible.
lord has by his conduct misled the lessee into | Bird v. Penn. Mutual Life Ins. Co.
supposing that the covenant would not be insis
ted on. Hughes v. Metropolitan R. Co. 406 It is not necessary that an applicant for life

insurance should sign the appiication personal.
A parol lease vests in the lessee a present in ly; he may authorize any other person to sign
terest in the premises from the time the lease is for him. Stelwagen v. The Merchants Life Ins. Co.
made. It is not an executory contract. Becar v.

125
Fleres, exp.,
&e.

421

Not stating in the application that the assured
Fraud in executing lease will vitiate it al- bad applied to another company for insurance
though party injured had friends present who does not vitiate the policy.

Ib.
could read and who could examine lease. Edick

A renewal of a life insurance policy, which
v. Dake.

559

had been forfeited by non-payment of premiums,
As to damages for breach of covenants of procured by fraud, is void, and an offer of judg
lease, see DAMAGES.

ment for the amount of the inoney received as

premiums at the time of renewal, with interest
As to evidence in actions on lease, see EVI. and costs, after suit broaght, is a sufficient ten-
DENCE.

der to allow the company to disaffirm. Harris

v. The Equitable Life Ass. Soc. of U. S. 156
As to ejectment for non-payment of rent, see
EJECTMENT.

Statements in the application for insurance in

the declaration, or answers to the questions are
As to leases by married women, see MARRIED either warranties or representations. If war-
WOMEN.

ranties, then materiality, or want of materiality

as to the risk, has nothing to do with the con.
As to release of sureties on lease, see PRINCI. tract. The only question is, were they untrue,
PAL AND SURETY.

and if so, the policy is void. But if representa-

tions, then to avoid the policy, they must be
LEGACIES.

substantially and materially untrue, or made

for the purpose of fraud. Buell v. The Conn. Mu-
See WiLLs.
tual Life Ins. Co.

161
LETTERS OF ADMINISTRATION.

Whether or not a disease is "serious" within

the meaning of a life insurance policy is a ques-
See EVIDENCE.

tion of fact for the jury. Boos v. The World Mu-
tual Ins. Co.

211
LIENS.

An agreement to issue a policy of life insur-

ance is good, although the premium was paid by
As to lien of mortgagor under a mortgage on note, and the note was not paid at maturity,
the income and earnings of a railroad, see EXE- where the policy contains no condition avoiding

policy unless the note is paid. Shaw v. The Re-
public Life Ins. Co.

212
LIFE INSURANCE.

Where the administrator of the deceased had
A wife insured the life of her husband, the received the policy, but it was not in reality de-
amount payable to herself it living, if not, to livered by the agent until after the death of the
their children. She died before her husband, assured, and in ignorance of that event, no re-
and one of the children before him, leaving a covery can be had unless a valid contract of in-
child.

surance existed between the insuror and the in-

CUTION.

284 DENCE.

sured before the latter's death, and the policy pal of outstanding notes, where such an agree-
delivered in pursuance thereof. The Piedmont ment has been made or custom established be-
& Arlington Life Ins. Co, v. Ewing, Admr. 276 tween tho parties by the course of business. 16.

A life policy containing a clause making it Equity cannot relieve against the forfeiture of
void if the insured went south of certain limits a policy on account of non-payment of premiums
without the consent of the company, is invalida- or of interest on premium notes at the time re
ted by the continued stay of the insured south of quired by the terms of the policy.

Ib.
such limits, whither he went under consent of
the company for a prescribed period. Evans v.

As to evidence in life insurance cases, see Evi-
The U. S. Life Ins. Co.
And where the company's officers, after such

LIS PENDENS.
forfeiture, declined to receive further premiums
unless 2 1-2 per cent. more was paid to cover the
additional risk, and gave plaintiff's agent till in an action to have a debt declared a lien upon

A notice of Lis Pendens may properly be filed
next day to pay, agreeing to keep the policy in the separate real estate of a married woman.
force and give credit for the premium and per- Sanders v. Warner.

507
centage, they have the right to abandon their
agreement, and to refuse to receive the premium

MALICIOUS PROSECUTION.
and percentage, and declare the policy forfeited.

16.

As to evidence in actions for, see EVIDENCE.
That the insured was ill, and that it was
highly inconvenient for him to return, affords

MANDAMUS.
no ground for relief, unless it appear that he
was actually unable to travel, even by short

When a party has a legal remedy, by action,
stages and at great expense.

16. against a town, a mandamus will not lié. Marsh
v. Town of Little Valley.

48
A false answer in an application for life insur-
ance avoids the policy, whether the insurer

Wbat was once a claim against the County of
knew its falsity or not, if the answer is a mate New York, having become å liability of the city,
rial one.
Baker v. The Home Life Ins. Co. 366 the latter may be sued upon it and a mandamus

will not lie. The People ex rel. Tenth National
If a true answer is given by the applicant to Bank v. Board of Apportionment.

c4
the company's agent who reduced the answer to
writing, and in so doing modified or varied its A peremptory writ of mandamus, under Chap.
meaning, the company is estopped from chal. 697, Laws of 1867, to compel Board of Assessors
lenging its correctness.

Ib. of New York City to assess damage to property,
Authority to an agent to solicit applications fusal to act. The People ex rel. Carleton v. Board

caused by closing street, is proper upon their re.
for life insurance does not give him authority to

118
collect premiums. Howell v. Charter Oak Life Of Assessors of New York City.
Ins. Co.

383

A presumptive right to the writ is all that is
The principal has a reasonable time to repudi. necessary to be shown to secure success of appli-
ate the acts of an unauthorized agent, even if cant in such case.

Ib.
the death of the insured intervenes; and he

See also, QUO WARRANTO.
need not tender back the premium received by
such an agent. If he notify the agent of his

MARINE INSURANCE.
dissent to his acts he need not notify the insured.

Io.

Where a policy of marine insurance, by its
Where a bond is given by an agent, as a con- terms, provides that the risk is to terminate at
dition of his being retained as such agent, con- the place and at the time the voyage shall be
ditioned that he will pay over all moneys be stopped, in consequence of ice or the closing of
longing to the company which he may receive, navigation making a completion of the voyage
the sureties on such bond are not exonerated by impossible, and allows three days for a dis-
the fact that the agent made a further agreement charge of the cargo, the insured has the right to
at the same time, as required by the company, make every effort to continue the voyage, after
that all his commissions thereafter earned stoppage, to a proper place to discharge the
should be applied to his past indebtedness to the cargo and lay up the boat for the winter, not-
company, of which they were ignorant. Magee withstanding it is apparent it could not be fin
et al. v. The Manhattan Life Ins. ĉo.
418 ished by reason of obstruction by ice. Sherwood

496
The mere relation of principal and surety does et al., exrs. v. Merchants Mutual Ins. Co.
not require the voluntary disclosure of all the
material facts in all cases.

Ib.

MARRIAGE.
The prompt payment of premiums, or of in As to effect of condition in restraint of, see
terest annually in advance on a premium note, WILL,
where the policy by its terms requires such pay.
ments, is a condition precedent to a recovery on

MARRIED WOMEN.
the policy. Anderson et al. v. The St. Louis Mut.
Life Ins, Co.

458

For goods purchased by a feme bole, she may

be sued after marriage withont joining her hus.
Dividends may be first credited on the princi- band. Helles et al. v. Rossele.

85

A married woman, living apart from her hus Where a master has left the control of bis
band and having a separate property of her own, business to an employee, reserving to himse!f
may be made liable for domestic work done for no discretion, he is liable for the neglect c:
herself and children. Conlin v. Cantrell. 128 omission of duty of the one thus representing

him.
The rule may now be considered settled wher-
ever the chancery jurisdiction exists, that a When an employee under a contract for pay.
married woman is to be regarded as a femme ment of money by installments for a term of
sole in respect to her separate property; and service is discharged without cause, he can only
that she may dispose of it as she pleases, unless recover for the amount that would have leen
her power of disposition is restricted or limited due, had he continued in service, at the time the
by the deed or will creating her interest. Smith suit was instituted. Hamlin v. Race. 117
v. Thompson et al.

141

If, when discharged, he rescinds the contract,
Where the beneficiary in a trust deed is a and then sues íor its breach, it may be that he
married woman, and there is no restriction upon can recover for all the damages lie sustained
the mode in which she shall alienate the pro- during the term by the breacı, if the trial was
perty, only that the trustee shall join in the had after the expiration of the term. Ib.
deed, this limitation has no reference to a de-
vise, and her testamentary capacity in regard to

There is no implied liability on the part of an
said pro; erty is complete.

Ib. employer to care for an employee injured in his
service. Rostern v. Dodd.

239
By virtue of the act of Congress regulating the
rights of property of married women, passed

A willful act which will exempt a master
April 10, 1869, a married woman may dispose of from liability for the tort of his servant, is in
her entire property, constituting her separate es- its legal sense malicious also. Rounds v. The D.
tate, whether such property was acquired before L. & W. R. R. Co.

200
or after the passage of the act.

Ib.

The master is not liable for the willful and
A married woman may deal through her hus- malicious act of the servant.

Ib.
band as her agent, Crawford v. Everson et al. 168

It is in general sufficient to make the master
A married woman is incapable of making a liable that he gave his servant authority or
contract except in regard to her separate proper- made it his duty to act in respect to the business
ty, but in reference to that she is treated as a in which he was engaged when the wrong was
femme sole; and if she gives a note, the law im- committed, and that the act complained of was
plies, in the absence of proof to the contrary, done in the course of his employment. Ib.
that she intends to bind her separate estate ; but
the intention must be manifested from the con-

The relation of master and servant exists be-
tract itself and cannot be shown by parol testi-tween the proprietor of a theatre and a star per-
mony. The Metropolitan Bank v. 'Taylor et al. former, and the former is liable for the negli.

218 gence of the latter, whereby a

ectator is in.
jured. Fox v. Dougherty.

201
In order to operate as a charge upon her se-
parate estate, when the engagement of a femme

Where the person who was the immediate
covert is made upon a consideration in which she cause of an accident is a contractor engaged in
or her estate has no direct interest, the intention performing a special work, the relation of mas-
to charge must be expressed in the contract ter and servant does not exist

, and the party
which is the foundation of the charge. Gosman employing him is not liable, unless the work
et al. v. Cruger et al.

329 contracted for is unlawful, or where an officer

or public body charged with a certain duty com-
A married woman who signs a lease not for mits its performance to another. King v. The
the benefit of her separate Estate or business, N. Y. C. & H. R. R. R. Co.

460
and not containing a clause expressly charging
her separate estate, incurs no liability. Eausta-

MECHANICS LIEN.
pere v. Ketchem et al.

377

Whether bringing materials upon the prem-
Her contracts not for the benefit of her separ ises, and building a tence around the lo: would
ate estate are void.

1b. be sufficient to establish a lien, quære. Middle-
town Savings Bank v. Fellowes.

19
As to when property of a married woman is
liable for debts of her husband, see Muirhead v. The work done having far exceeded the price
Aldridge.

480 agreed upon at the time of the taking of a mort.

gage, whether, if the builder's lien had had pre.
As to charging separate estate, see NEGOTIA- cedence, it could have covered more than work
BLE PAPER.

agreed upon, quære.

Ib.
As to release of dower, see DOWER.

A party furnishing a contractor materials,

&c., is not bound to notify owner of property in
MASTER AND SERVANT.
order to get and enforce his lien.

Wheeler e.

35
A master is not liable to his servant for the Schofield.
negligence of a fellow servant who has not Where building was to be completed in one
been negligently appointed. Malone, admrx., v. year, party may extend time verbally and lien
Hathaway, survivor
85 will hold

ló.

When the owner of land permits the con Order releasing defendant, bidding at fore.
struction of a building on his land occupied by closure sale, of his bid, and directing referee to
another, and for another's benefit, the statute pay from the ten per cent. deposit expenses of
permits a lien by a mechanic or person furn- sal., fees and expenses of re-sale having been
ishing material. Nellis v. Bellinger. 213, entered, defendant is entitled only to the bal.

ance of deposit after paying referee's fees and
Property held by the public for specific public expenses of first sale, attorney's costs and ex.
uses, is held in trust for government purposes, penses of re-sale. Knight v. Maloney. 40
and cannot be taken by an individual for the
satisfaction of his private claim. Leonard v. Reyn Where a will divides the whole of testator's
oids et al.

327 property into certain portions, but was not pro-
Under a mechanic's lien the owner is not heirs at law recover the realty, they must resort

perly executed as a will of real estate, and the
obliged to pay any greater sum than he agreed in the first instance to that to pay a mortgage
to pay the contractor nor more than was un-
paid at the time of filing the lien. Before fore. upon it, but any deficiency will be paid from the

49
closure the claimant should be able to show the personalty. Rice, admr., v Harbeson et al.
inability of the owner to perform his promise An actual, visible and open possession of the
or put him in default by demanding perform premises by the owner of an unrecorded title, is
ance. Miner v. Langan.

482

necessary to avoid the lien of a subsequent mort-
A cancellation of the contract by mutual con- gage executed by the owner of record; an

equivocal, occasional, special or temporary pos-
sent by the parties to it cannot affect the rights
of a third party to enforce his lien for materials session will not take the case out of the opera-
furnished the contractor. Jenks et al v. Brown tion of the registry laws. Brown v. Volkening et

al.

86
impld.

487
Where a mechanic's lien has attached, it can formally satisfied and discharged, and the

Where a valid, subsisting mortgage has been
not be affected by any arrangement thereafter
entered into between the contractor and the which embraces other amounts, and the latter

amount thereof included in a new mortgage
owner of the building.

Ib.

mortgage is declared invalid as being usurious,

the former mortgage revives. Paterson v. Bird-
MERGER.
sall et al.

222
Merger will depend upon the intention of the
parties. Beach et al, trustees, v. Allen. 463

And the mortgagee in the second having paid

off the first, upon having his mortgage declared
MISTAKE.

void for usury, is entitled to subrogation to the
rights of the first mortgagee.

Ib.
An act done or a contract made under a mu-
tual mistake or ignorance of a material fact, is

In order to avail himself of usury in a mort-
voidable and relievable in equity. In the matter gage, a party other than the mortgagor must
of the application of Mary E. Jackson, an infant, assert an interest in the mortgaged premises.
for leave to sell her real estate.

17
Hubbell v Mansfield.

256

Where the defendant after commencement of
Where in exchange of real estate on the basis the action pays a mortgage but not the costs,
of an appraised amount per foot, there is a mu: and sets up such payment by answer, it cannot
tual mistake in the amount conveyed by one to be stricken out as sham. 'Wetmore v. Gale et
the other, the injured party is entitled to recover

al.

408
at the appraised rate for the deficiency. Church
v. Steele.

52 Costs in such an action are discretionary, and

it is not certain that the plaintift would be al-
The same can be recovered in an action of as lowed costs.

Ib.
sumpsit for lands sold.

Ib.

An agreement made prior to the bond in suit,
As to correction of mistake in conveyance, see although it refers to it, cannot control it. Smith
DEEDS.

Smith.

422
MORTGAGE.

A junior mortgagee may redeem from a prior

mortgage by paying the amount due thereon
A mortgage given upon the acquisition of and the costs. Dings v. Parshall.

459
title has precedence of a mechanic's lien ac-

The tender of the amount due thereon by
quired by reason of labor on, and materials
furnished to the premises under a contract with junior mortgagee for purposes of redemption is
the mortgagor, who at the time the labor and the money, provided the money tendered is set

equivalent, if properly made, to the payment of
materials were furnished had a contract for, but

apart and kept for such mortgagee.

Ib.
no title to, the premises. Middletown Savings
Bank v Fellowes.

19 The junior incumbrancer having paid the

debt is entitled to subrogation.
In Pennsylvania an equitable mortgage can-

Ib.
not be created by a deposit of title deeds, but a A bona fide endorsee of a note acquires the
Court of Equity will ‘not enforce their return same right in a mortgage given to secure it as
until the party depositing them has complied the original payee would have had if no equi-
with the agreement under which they are held. ties had existed against the note. Logan v.
Sidney v. Stevenson
29 Smith et al.

509

Where the mortgagor sells portions of the remove, or control the officers constituting such
mortgaged premises, they will, on foreclosure, dep tment. Barnes v. The District of Columbia.
be sold in the order of their alienation. Grant-

201
ees will be protected only to the amount of pur-

The authorized body of a municipal corpora-
chase money paid by them. In such a case the
release of one lot does not necessarily discharge tion may bind it by an ordinance or resolution,
the others. McDonald v. Whitney.

529

which, in favor of private persons interested

therein, may, if so intended, opera e as a con-
Where a lite estate is left to a widow, with tract. Town of Moultrie v. The Rockingham Ten
remainder to infants, she stands in a position of Cents Savings Bank.

271
trust towards such infants. And where she sells
a portion of the property (under a power in the

The power to enact and enforce ordinances
will) for a very low price, and did not apply the has always formed an essential feature in the
proceeds on a mortgage on the property, but cr ation of municipal corporations. The legis.
allowed it to be foreclosed, the decree of fore- lature may confer the power upon the Common
closure is ineffectual to bar the equity of the Council, or any of the departments of the muni-
infant remaindermen, who were defrauded cipal government. Cox v. The People. 283
thereby, and they can maintain an original ac-
tion in equity to avoid it. McMurray et al. v; with reference to founding contracts on sealed

Section 104, of chap. 137, of the laws of 1870,
McMurray.

543

bids, considered and applied to a peculiar case.
The purchaser, the mortgagee, having taken Leverich v. The Mayor, &c., of N. Y.

328
it with full knowledge of all the facts, becomes
merely a mortgagee in possession, and is A substantial compliance with the 53d section
bound to account to the infant remaindermen of the charter of New York City, requiring
for their share of what he realizes over and heads of departments to certify to the necessity
above the mortgage.

Ib. of the work, is sufficient to enable a party to

recover a just claim against the city, even
A re-sale of premises under a decree of fore though there has not been a strict and formal
closure will be directed upon equitable terms compliance with the statute.

Ib.
when the first sale is made in such manner as
to prevent a fair competition, or where for any The Board of County Canvassers of New York
cause it would be inequitable to permit the sale City are organized as a distinct board for special
to stand. Phillips et al. v. Cudlipp, impl’d 547 service, and not as town officers, and have the

right to designate the papers in which their
As to what is not a mortgage, see Condi- proceedings shall be published. Harkens v. The
TIONAL SALES.

Mayor, &c., of N. Y.

315
As to effect of sale in partition upon mort-

The provisions of the Revised Statutes re.
gage given by one co-tenant, see PARTITION.

lating to publications by County Canvassers
As to mortgage on income and earnings of (1 R. S., 133), is not in conflict with Chapter
railroad, see EXECUTION.

875, Laws of 1869.

Ib.
As to priority of simultaneous purchase mon-

A board authorized by law to make contracts
ey mortgages, see PRIORITY,

by publishing for proposals, and by giving the

contract to the lowest bidder, has no authority,
MUNICIPAL CORPORATIONS.

after the bids have been opened, to materially

alter the contract as advertised by adding a
Board of revision and correct on have power cluuse thereto, and then award the contract to
to allow, and award damages to property own- ono of the original bidders, without a new ad-
ers, for damages done their property by changes vertisement. Dickinson et al.y. The City of Pough.
in the grade. The People ex rel, Tytler v. Green keepsie.

319
et al.

126
The legislature of a State has authority to debts for entertaining editors visiting the vil.

Village trustees have no power to contract
make a division of a municipal corporation, and lage. Gamble v. Village of Watkins. 361
upon such terms and under such regulations as
it deems proper. Board of Co. Com’rs of Lara-

A municipal corporation does not insure citi.
mie Eo. v. Board of Com’rs of Albany Co. et al. zens avainst damage from works of its construc-

194 tion, but is only liable for negligence or willful
Accordingly where a legislature divided one misconduct. Smith v. The Mayor, &c., of N. Y.

471
county into three without providing for the pay.
ment of the debts of the old county, the pre As to when municipal corporation is estopped
sumption is that the old corporation is responsi- from denying the validity of town bonds, see
ble for all the debts contracted before the sepa- ESTOPPEL.
ration, and a bill in equity, on its behalf against
the new to compel contributions for their pro-

MURDER.
portion toward such indebtedness, cannot be
maintained.

Ib. As to evidence on trial for, see EVIDENCE.
A municipal corporation is liable for injuries

NATIONAL BANKS.
arising from the negligent construction of a
work by one of its subordinate departments, A national bank may sue a citizen of the dis.
although it may not have the power to appoint, trict in which it is located, upon a promissory