extensive reach to protect the plaintiff's JUDGMENT. PROCESS. rights. If the defendant has been dishonest

U. S. SUPREME COURT. in the transaction, plaintiff may disregard

Alexander M. Earle, et al., applts., v. them all and sue directly for the fraud,

James H. McVeigh. and give parol evidence of the representa

Decided October Term, 1875. tions, though they are not noticed in the written contract. 13 J. R., 325; 18 Due notice, actual or constructive, to Wend., 193.

the defendant, is essential to the ju

risdiction of all courts. Defendant claimed that plaintiff was What is a good notice under a statute not the real party in interest and could

providing for constructive process, not maintain this action, that C. did not decided. purchase the engines as agent for plaintiff,

Appeal from the Circuit Court of the or assume to act is such agent, and that United States for the Eastern District of the money prid by C. has not been repaid Virginia. to him by plaintiff, and that the papers

Two suits were commenced by the which passed between C. and defendant plaintiff against the present defendant, showed that C. dealt as a principal, and and the plaintiff thereon obtained service that parol proof that he acted as an agent, of process in the respective suits on the was mcompetent. It appeared from the

same day, in the words following: " Exeevidence that C. was plaintiff's agent, and cuted the within summons February 24, that it authorized him to purchase the 1862, on James H. McVeigh, by leaving engines.

a copy thereof posted at the front door of Held, That as C. acted as plaintiff's his usual place of abode, neither he nor agent, all loss resulting necessarily from his wife, nor any white person who is a the transaction was plaintiff's loss, and it member of his family, and above the ag! cuald enforce all rights of action acquired of sixteen years, being found at his said thereby against defendant, whatever ob usual place of abode.” ligations and liabilities arose in the trans The defendant not appearing, judgaction from plaintiff to C. 15 East 62; ments were rendered against him. 2 Smith's L. Cas., 342; 9 B. & C., 78. It was admitted that defendant had Plaintiff had a r ght to intervene and take been for many years a resident of the to itself the transaction, and to show by place where the process was served; that parol that it was the real pırty in interest. he was the head of a family, owning the

The referee r ceived evidence of wit. dwelling in which he resided; that he, nesses, who s:lw the engines, at a place together with his family, left their house distant from that of sale, some time seven months prior to the alleged service thereafter, as to thei va'ue. It appeared of process, owing to the threatened occuthat they were then in the same condition pation of the town by the Federal force as at the time of sale.

went within the Confederate lines and Held, no error; that the value of the there remained until the close of the war; engines was not governed by the state of that his absence from the town was not the market at a particular time; but as to one which he regarded as absolute and such property the whole country is but a permanent, but contingent and temporsingle market.

ary, depending for its continuance upon Judgment of General Term, affirming the fortunes of the war. It also appeared judgment for plaintiff, affirmed.

he had left no white person in the house, Opinion by Folger, J.

and that these facts were known to the plaintiff's attorney,and to the officer who made the return.

The statute pr:vides 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 hume, 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 ana above the age of sixteen authority, which he was compelled to obey. years; or if neither he nor his wise, nor This, he ciuimed, excused him from any such white person be found there, by accountability to the plaintiff or this leaving sueh 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

HM, This is not a Federal question, judgments are valid.

and the motion to dismiss the case for Held, That the service was insufficient; want of jurisdiction must be granted. that it appeared by the evidence that the

Dismissed. house was not the usual place where the dfendant or his family resided at the

Opinion by Waite, C. J. time the notice was posted; that usual place of abode did not mean last place of LIFE INSULANCE. FALSE STATEabode; that the law intends that the


MENT. son against whom the notice is directed,

U. S. SUPREME COURT. should then be living or have his home in

The Ætna L. I. Co., p?tf. in error v. said house, although temporarily absent.

France, deft, in error. Decree setting aside judgment affirmed.

Decided October Term, 1875. Opinion by Clifford, J.

A life insurance policy, contuining a JURISDICTION.

clause providing it shall be voil, if

the answers made to questions by the U.S. SUPREME COURT.

insured in his application, are founil Charles Rockhold, plit in error v. to be false in any respect is wholly Thomas Rockhold, et al., defls in error.

avoided by a fulse answer whether it

be material or not. Decided October Term, 1875.

In such case neither the court nor the A claim by a trustee, that he was com

jury can inquire into the materiality pelled to pay over the trust funds to the Confederate States, when the

of either the question or answer. country was under military rule, is Error to U. S. Circuit Court, Eastern not a Federal question, and will not District of Pennsylvania. give this court jurisiction to review Action of assumpsit to recover $10,a decision of the state court. 000, the amount of a policy insured upon

In error to the Supreme Court of the the life of Andrew J. Chew in 18tj5. AnState of Tennessee.

nexed to the policy and made part of it, This suit was to bring the executors of was the application of Chew containing the will of Thomas Rockhold to an ac- the questions and answers usual in such count 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, clause. It is understood and agreed, that answering the bill, said, in substance, that, if the proposals. answers, and declarations contrary to his wishes, he was forced by a

shall be found in any remilitary power that he could not control, spect false or fraudulent, then and in such to receive the sum of $5,004.74 from one case this policy shall be null and void.

Among others were the following ques which has been forfeited by reuson tions and answers :

of non payment of premiums, where Question. Age next birth day?

payment of such premiums was imAnswer. 30 years.

possible. Question. Has the party ever had any

The defendants are a Mutual Insurof the following diseases ?

ance Company. In September, 1847, they rupture (and others)?

executed and delivered to the complainant Answer. None.

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 8155 50. 35 years old when he signed the applica- The insurance was for a year, with the tion.

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 paycrded 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. male thereon, and all profits for which fn), 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 differ The complainant continued to pay the ence would not be immaterial.

annual premiums punctually at PhiladelHeld, That tne question of materiality phia until 1861, when the whole sum of the answers did not arise; that the par- thus paid had anjounted to $2,177. He ties had determined and agreed that they was a resident of the State of Virginia. were material; that their agreement on The civil war, which broke ont in April, that point was conclusive, and that the 1861, prevented him from paying the preonly questions for the jury were: first, miums in September, 1861, and subsewere 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 defendants being in possession of New trial ordered.

the policy, treated the insurance as ended Opinion by Hunt, J.

by reason of the non-payment of the pre

mium in September, 1861; and wrote LIFE INSURANCE. FORFEITURE.

upon the policy that

“ forfeited” EQUITABLE RELIEF.

and “cancelled," obliterating the signaU S. CIRCUIT Court-EASTERN Dis- tures of their officers. TRICT OF PENNSYLVANIA.

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

1865, expressed a desire to know what Decided Febrnary 7th, 1876.

steps he must take to continne his ipsurA Court of Equity will reinstate the ance. On 9th June, 1865, they wrote in

holder of a life insurance policy answer stating that“ the policy of insur


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 Decided February 1, 1876. year he renewed the correspondence, urg- Where, upon the return of an order to ing his right to be reinstated in the insur

show cause why a mandamus should ance. They repeated, and never in any not issve, afidavits are presented on wise qualified their original declaration behalf of the defendant, upon which that the insurance was forfeited. The

the relator takes no issue, but pro. correspondence was closed in December, ceeds to argument, he admits the

truth of the defendant's averments. 1867. The bill was filed on 20 July, 1874. Its What was once a claim against the

County of New York, having bepurposes were that the policy, &c., still in

come a liability of the city, the latter the possession of the defendants, should

may be sued upon it and a manbe exhibited by them, that the complain damus will not lie. ant should be permitted to pay all the ac

The relator applied for a peremptory crued premiums which are unpaid, that the policy be declared valid and to have fendant to authorize stock of the County

mandamus to be issued, commanding deremained in force, and that the defend

of New York to be issued in pursuance of ants should account foi all the dividends which had been, or ought to have been chap. 583, laws of 1871 $ 4, for the pur

pose of raising moneys advanced and declared upon it.

overdrafts paid by the relator to the ComThe defendants, by their answer, and in missioners of the new County Court argument, insisted that the insurance had House in the City of New York. On the been forfeited in 1861, that the complain- return of the order to show culise, affidaant had never made any tender of the vits were presented on the part of the premiums in question, and that his delay Board to the effect that the loans and to institute the present proceedings ought over-drafts, if made as alleged, were made to preclude him from relief if he were by I., one of the commissioners, a director otherwise equitably entitled to it.

of the relator, withou authority from the Held, That the complainant was en- Board of Commissioners, and the sums titled to the relief demanded; that de- were not advanced to the commissioners fendants should account to him for his but to I., the relator, well knowing that share of the profits of its business since the money was not to be used for the comtheir last settlement; that whatever he pletion of the Court House, and that it may be entitled to should be deducted was not so used. The relator took no from the amounts of the premiums since issue upon the allegations of the affidi1861, with interest; that he pay the bal- vits and papers presented by defendant, ance to defendant, and that defend. but proceeded to argument and asked for ant deliver the policy to complainanta peremptory mandamus, which was with as beneficial effect as if it had been awarded by the Special Term. cancelled or effaced.

Henry H. Anderson, for app!t. Opinion by Cadwalader, J.

John H. Strahan, for respts.

Held, That the relator's action was

equivalent to a demurrer to the defendMANDAMUS. PRACTICE. ant's averments. admitting the tr·th of

them, but denying their sufficiency in law N. Y. COURT OF APPEALS.

to prevent the issuing of the writ. 1 People ex rel. The Tenth National Wend., 474; and as defendant's papers Bank, applis. 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 erroneous.

1853, Chap 576, as held in Lenox v. ElThe Board of Apportionment of the dred, 1 N. Y. Sup. Court Rep., 142. But city and county of New York has power such joinder is not necessary or imperato examine claims presented to it, and to tive. The execution would not go against exercise a judgment whether they are the husband's property if he were joined rightful before giving assent to provision as defendant, as at common law, but for the payment of them.

would only bind the separate property of, Also held, That what was once, if the the wife. claim is legal, a liability of the county of The husband in such case is in no sense New York has become a liability of the responsible for the debt, except in respect city, and the latter may be sued upon it to the property of the wife which may In such a case relief by mandamus will be come to his possession by the mai riage. denied.

For this he would be liable to account in Order of General Term, reversing order a proper proceeding against him, if the of Special Term granting a maudamus, separate estate remaining in the hands of affirmed.

the wife should prove insufficient to disPer curiam opinion.

charge the judgment.

The judgment should be affirmed.

Opinion by E. Darwin Smith, J.


JURIES FROM NEGLECT OF FEL. Henry M. Helles et al., respts., v. Amy E. LOW SERVANT. Rossele, applt.

N. Y. COURT OF APPEALS. Decided January, 1876.

Malone, Adm'r'x, &c., respt. v. HathaFor goods purchased by a feme sole,

way, Surv'r, &c., applt. she may be sued after marriage

Decided January 18, 1876. without joining her husband.

A master is not liable to his servant The action was for goods sold the defendant, who was at the time a feme sole,

for the negligence of a fellow sern

vant who has not been negligently apcarrying on a separate business in her pointed. own name and for her own account. Where a master has left the control oj She afterwards married, and is sued by his business to an employe, reserving ber mirried name for an account made to himsel, no discretion, he is liable with the plaintiff before marriage. The for the neglect or omission of duty referee held her liable to be sued alone, of the one thus representing him. without her husband, and gave judgment This action was brought to recover for amount of the account, from which damages for the death of plaintiff's intesdefendant appeals to this court.

tate, who was an employe of the firm of Held, the defendant was a feme sole B. & Co., of which defendant was the surwhen the debt was contracted, and liable viving member, and was killed while in to be sued as such upon the demand. Her the discharge of his duty, by the breaking bubsequent 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

« ForrigeFortsett »