« ZurückWeiter »
JUDGMENT OF JUSTICE OF PEACE - INSUFFICIENCY PENNSYLI’ANIA SUPREME COURT ABOF EVIDENCE. – A judgment rendered by a justice of
STRACT. the peace cannot be upheld by mere intendment; there must be some legitimate evidence tending in some degree to establish erery fact essential to the cause of
ATTORNEY - HAS NO POWER TO COMPROMISE CLIaction. Evidence held insufficient to establish em
ENT'S CLAM. - An attorney at law in Pennsylvania ployment of real estate broker, and that he was the
has, as such, no authority to compromise his client's
claim. procuring cause of the sale. Chappell v. Truscott.
In Stokely v. Robinson, 10 Cal. 315, it was held Opinion by Beckwith, J.
that an attorney, by virtue of his professional rela
tion, has no power to compromise his client's case JUSTICE'S JUDGMENT EXCESSIVE COSTS. - If a without the client's authority or sanction; and this judgment rendered by a justice court violates the doctrine is supported by the cases of Huston v. statute, which provides that "the whole amount of Mitchell, 14 S. & R. 307, and Stackhouse v. O'Hara's all the items of such costs, except charges for the
Ex'rs, 2 Harris, 88. In the latter case it was said, per attendance of witnesses from another county, shall Coulter, J.: An attorney at law in Pennsylvania has not, in any case, exceed five dollars ” (3 R. S. 247, § 117), very extensive power in relation to conducting a suit, the whole is vitiated. Kunz v. Echhert. Opinion by but after judgment this plenary power, in a great James M. Smith, J.
measure, ceases, excepting as to his power of receiving
the amount of the judgment and giving a receipt for MORTGAGE OF MERCHANDISE - WHEN NOT FRAUDU
it." Housenick v. Jiller. Opinion by Gordon, J. LENT. · Where there was no express agreement or
[Decided March 22, 1880.) stipulation, verbal or written, that the mortgagor should remain in possession of the merchandise mort
CONTRACT — NON-PERFORMANCE CAUSED BY ACT OF gaged and sell it in the usual course of business, but
GOD NO BREACH.-C. agreed with J., who owned a the mortgagor did continuo in possession of the mer
hotel, to supply spring water to the hotel through chandise and soli part of it in the usual course of
pipes that were laid from a spring that was tho only trade at retail, with the knowledge of the mortgagee,
regular source of supply since the hotel was built. J. and though there was no proof that any part of the
leased the hotel, agreeing with the lessee that the hotel proceeds had been applied on the mortgage, held, that
should “be supplied with spring water during said the mortgage was not, as a matter of law, fraudulent
term in the manner tho samo is now supplied under as against the creditors of the nortgagor, and a non
that certain agreement between C. and J. Held, suit of the mortgagee was error. Hastings v. Parke.
that a failure of the water supply, caused by the dryOpinion by Beckwith, J.
ing up of the spring, was not a breach of the contract.
Taril v. l'ance. Opinion by Trunkey, J. SALES FRAUDULENT AGAINST CREDITORS. - - After [Decided March 22, 1880.] trial, but before judgment rendered against him, a
ILLEGAL CONSIDERATION - PROOF OF. — The proof man executed and delivered to his wife a bill of sale
of a mere threat of prosecution for a felony, inducing of furniture in the house occupied by them, but with
the execution of an instrument, is not sufficient to out any actual and continued cbange of possession of
establish the invalidity of the instrument as having the goods. In replevin by the wife against a constable
been given for an illegal consideration, there being no who levied upon the goods under the judgment afore
proof of the felony or of an agreement not to prosecute. said, held, that tho plaintiff was bound to establish
Swope v. Jefferson Fire Insurance Co. Opiuion by affirmatively that the sale was made in good faith and
Sterrett, J. without any intention to defraud creditors. Randall
[Decided May 3, 1880.] v. Parker, 3 Sandf, 69; Jones v. O'Brien, 36 N. Y. Sup. Ct. 58. Marvin v. Smith. Opinion by Beckwith, J.
NEGLIGENCE- RAILROAD ENGINE SPARKS SETTING
FIRE-THAT FIRE OCCURS NOT EVIDENCE OF NEGLIUSURY - MORTGAGE — PAROL EVIDENCE — ESTOPPEL
GENCE. – In an action against a railroad company for BY GUARANTY OF MORTGAGE. -- A conveyed lands to
fire caused by sparks from its engine, it was claimed B, and received in return a bond and mortgage, which
that its spark arresters were defective and its engines he sold and assigned to plaintiff, with a guaranty of
carelessly managed, but no evidence of that fact or their payment, and shortly thereafter B re-conveyed
that the company was negligent was given, except that the lands to A. In an action to foreclose the mortgage,
it was shown that tho dry grass and stubblo along the hell, (1) that evidence was admissible to show that the company's track were ignited. Held, not sufficient to deed, bond and mortgage were given without any con
establish negligence, and a submission of the question sideration, and were made for the sole purpose of
to the jury was improper. Tho company in operating obtaining a loan of money from the plaintiff at a usuri
its road had a right to use steam engines; and no perous rate of interest, by the sale of the bond, etc., to son, natural or artificial, is answerable in damages for him, and that the same was known to him when he
the reasonable exercise of a right, accompanied with a purchased and took the assignment of them. Parol proper regard for the rights of others. The company evidence is admissible to show that an instrument is
was bound, however, to use spark arresters of tho most void, or that it never had any legal existence or binda approved kind, keep them in good order, and exercise ing force, either by reason of fraud, or for want of due
reasonable care and vigilance in running its engines. execution and delivery, or for the illegality of the
The bare fact that dry grass and stubble on the line of subject-matter; or that it was made for the further- the road were ignited was not of itself evidence of ance of objects forbidden by law; whether it be by negligence in either of these particulars. It is imposstatute, or by an express rule of the common law, or siblo so to construct or equip an engine that no sparks by the general policy of the law. (2) That the mort
will be emitted. The most that can be done is to pregagee (A) was not estopped by reason of his guaranty
vent tho escape of large sparks or coals. The most from showing these facts. Where the assignee of a approved spark arresters necessarily permit the escape mortgage sets up an estoppel against the mortgagee,
of small sparks, and if these come in contact with dry based on the warranty or assurance of the validity of
and combustible material on a windy day, the result the security by the mortgagor, the latter may show is very frequently a fire, more or less extensive accordthat the assignee could not have believed or acted upon ing to the kind and quantity of material at hand for such assurance or warranty, because he well knew the it to feed upon. The burning of dry grass and other mortgage was void. Fellows v. Wallace. Opinion by combustible material along the line of the road, withJames M. Smith, J.
out more, was neither negligence nor evidence from
which a jury would be justified in finding negligence. The principle involved in this case was recognized and applied in Jennings v. Railroad Co., recently decided in the Western District. Upon a state of facts differingin no essential particular from those of the present case, the jury was instructed to render a verdict for defendant; and in affirming the judgment, it is said: ,' To hold that the fact of the fire having taken place was prima facie evidence that the spark arrester was defective, and therefore that the case ought to be submitted to the jury, would be practically to hold railroad companies liable for all fires; it is a notorious fact that no spark arrester has yet been invented to prevent all sparks, and a little spark may kindle as large a conflagration as a large one. It depends on the dryness or humidity of the atmosphere, whether a spark will go out before reaching the ground, and whether what it reaches is in a condition to be easily ignited." Reading & Columbia Railroad Co. v. Latshaw. Opinion by Sterrett, J. [Decided March 15, 1880.]
ILLINOIS SUPREME COURT ABSTRACT.
in People v. Mayor, 4 N. Y. 419: “This is an appropriate mode when lands or goods are taken, because their value is uncertain, but not when money is taken, because its valuo is already fixed.” Whether or not a special tax on contiguous property in a city or town for a local improvement, as a sidewalk frouting the sanie, exceeds the actual benefit to the lots taxed, is not material. It may be supposed to be based on a presumed equivalent, and where the corporate authorities determine the frontage to be the proper measure of probable benefits, this cannot be disputed or disproved. White v. People of Illinois ex rel.City of Bloomington. Opinion by Sheldon, J.; Walker, C. J., and Scholfield, J., dissented.
NEGLIGENCE – LANDING OF PASSENGERS - CARRIER OF PASSENGERS — STEAMBOAT.- Where a steamboat is landing at a wharf for the purpose of enabling passengers to go ashore, it is the duty of the proper otficers of the boat to provide means for the safo transit of those who wish to leave the boat — and the fact that a stage plank placed for the use of passengers iu landing, fell while a passenger, in the exercise of due care, was walking over it, is prima facie evidence of negligence on the part of the officers of the boat in the performance of that duty, and in an action by the passenger to recover for an injury caused by the falling of the plauk, the burden is upon the defendant to show the falling of the plank was not the result of negligence on the part of the officers of the boat. This position is sustained in Pittsburg, Cin. & St. L. R. Co. v. Thompson, 56 Ill. 138, and in Railroad Co. v. Pollard, 22 Wall. 34., and in Stokes v. Saltonstall, 13 Pet. 181. In the last named case it is held that the upsetting of a stage coach, by which a passenger is injured, is prima facie evidence of negligence on the part of the driver, and casts upon the proprietor the burden of showing the driver was in every respect qualified, and acted with reasonable skill and the utmost caution. Although it may appear that the end of the boat was moved around by the wind, and that this caused the falling of the stage plank, yet it not being shown that the boat was fastened to the wharf in any way, or that it could not have been fastened so as to havo prevented it from being moved by the wind, there would not appear to have been due care on the part of the officers of the boat to discharge it from liability. Eagle Packet Co. v. Defries. Opinion by Dickey, J.
ATTORNEY - INVESTING IN CLAIM AGAINST CLIENT. It is not to be tolerated that an attorney shall advise or encourago a client in investing in a bad title, and himself afterward buy up the better title and assert it as against his former client. Such a practice would open a door to endless wrongs and villanies, and bring great and just reproach upon the profession. “If an attorney employed by the party should designedly conceal from his client a material fact or principle of law, by which he should gain an interest not intended by the client, it will be held a positive fraud, and he will be treated as a mere trustee for the benefit of his client and his representatives; and in a case of this sort it will not be permitted to the attorney to set up his ignorance of law or his negligence as a defense or an excuse. It has been justly remarked that it would be too dangerous to the interests of mankind to allow those who are bound to advise, and who ought to be able to give good and sound advice, to take advantage of their own professional ignorance, to the prejudice of others. Attorneys must, from the nature of the relation, be bound to give all the information which they ought to give, and not be permitted to plead ignorance of what they ought to know." Gibbons v. Hoag. Opinion by Scholfield, J.
CONSTITUTIONAL LAW -- EMINENT DOMAIN - -TAKING PRIVATE PROPERTY FOR PUBLIC USE-ASSESSMENT FOR SIDEWALK NOT.— The constitutional limitation that private property shall not be taken for public use without just compensation, to be ascertained by jury when not made by the State, has reference only to the exercise of the power of eminent domain, and not to special taxation of contiguous property for the building of a sidewalk or other public improvement by cities, towns and villages. Warren v. Henley, 31 Iowa, 31. It is quite clear that the levying such local assessments (for the building of sewers and sidewalks) is not taking private property for public use under the right of eminent domain, but is the exercise of the right of taxation, inherent in every sovereign State. Per Redfield, J., in Allen v. Drew, 44 Vt. 175. The courts seem to be very generally agreed, that the authority to require the property specially benefited to bear the expense of local improvement is a branch of the taxing power, or included within it. ? Dill. on Mun. Corp., & 596. The compensation, under this provision, is to be ascertained by a jury. As remarked
IOWA SUPREME COURT ABSTRACT.
EVIDENCE - INTEREST OF WITNESS -- MAY NOT BE SHOWN BY ADMISSIONS. — Under a statute declaring that a person interested in the event of a suit should not be excluded as witness, but allowing the fact of his interest to be shown for tho purpose of affecting the credibility of his testimony, held, that statements made to others by the witness that he vas interested could not be shown. The rules relating to the admissibility of evidence showing the interest of a witness are the same at common law and under the statute. A difference arises only as to the effect of the interest, and consequently as to the time when it may be shown. At common iaw the court passes upon the evidence, and if the interest be established, excludes the testimony; under the statute the evidence goes to the jury, and is considered upon the question of the credibility of the witness. The difference above referred to does not extend to the manner of showing the interest of the witness. Decisions of the courts made at commion law must therefore determine the question under consideration. It has been often held that testimony for the purpose of establishing declarations of a witness, to the effect that he is interested in the event
Appearing in 91 and 95 Illinois Reports.
- ISSUE OF
of the suit, is not admissible; it is regarded as merely sisted, has been overruled by Malone v. Hathaway, 64 hearsay evidence. Rich v. Eldridge, 42 N. H. 153; N. Y. 5. This is a mistake, as it was followed in the Vining v. Wooten, Cooke (Tenn.), 127; Commonwealth | later case of Booth v. Boston & Albany R. Co., 73 N. y. Waite, 5 Mass. 261; Pierce v. Chase, 8 id. 487; Pol- | Y. 38. Braun v. Chicago, Rock Island & Pacific Raillock's Lessees v. Gillespie, 2 Yeates, 129; Young v. road Co. Opinion by Severs, J. Garland, 18 Me. 409; Stewart v. Lake, 33 id, 87; Cotchett v. Dixon, 4 McCord, 311; Dunn v. Cronise, 9 Ohio, 82; OHIO SUPREME COURT ABSTRACT. Sims v. Givan, 2 Blackf. 461; Freem uu v. Luckett, 2 J. J. Marsh. 390; Davis v. Whiteside, 4 id. 116; Jones v.
CERTIFICATE Tevis, 4 Litt. 25; Stimmel v. Underwood, 3 Gill &
STOCK WITHOUT SURRENDER OF OLD - LIABILITY FOR Johns. 282; Walker v. Coursin, 19 Penn. 321. A differ
WRONGFUL ISSUE — DIVIDENDS.- On the 9th of Sepent rule was recognized in Dunn v. Jones, 1 Cox, 46;tember, 1854, the Cleveland and Mahoniug Railroad Anon. 2 Hayw. 340; and Colston v. Nichols, 1 Harr. & Company issued to V. certificates of its capital stock. Johns. 105. The last one was overruled in Stimmel v. The certificates declared upon their face that the stock Underwood, supra; Lucas v. Flinn, 35 Iowa, 9. Erick- was transferable on the books of the company upon the son v. Bell. Opinion by Beck, J.
surrender of the certificates. Ou the 16th of Septem
ber, 1854, the stock was sold to F. by V. who delivered MARRIED WOMAN - DEED BY -- CANNOT BE CONTRA
to him the certificates with blank powers of attorney DICTED BY PAROL. -- In the execution of a mortgage by
to enable him to have the stock transferred. The cera husband and wife, the fact that she was induced to
tificates were mislaid by F. and were not discovered sign by deception on the part of her husband cannot
until December, 1871. In the meantime, on May 8, be set up against an innocent mortgagee. In the 1863, the board of directors of the railroad company, absence of fraud by the mortgagee, or mutual mistake, the court must look to the instrument alone to deter- assumed to sell the stock, new certificates of stock, on
on the application of V. issued to B. & P., to whom V. mine whether she concurred in it. Edgell v. Hagens, the supposition that the original certificates had been 5 N. W. Rep. (Iowa) 504. It cannot be contradicted
lost by V. On the application of the administrators by parol testimony. It is undoubtedly true that many
of F., for a transfer of the stock to their names and married women execute deeds and mortgages in pro
for an account of the dividends, the company refused found ignorance of their contents, and with unlimited
the application on the ground of the issue of the new confidence that their husbands will not mislead them.
certificates to B. & P. The by-laws provided that no But they cannot be allowed to plead this ignorance
new certificates should be issued in place of any certiand confidence to the detriment of innocent parties.
ficate previously issued, until such previous certificate Ætna Life Insurance Co. v. Franks. Opinion by
was surrendered and cancelled. There was also proAdams, C. J.
vision in the by-laws, that certificates might be issued MASTER AND SERVANT — DUTY AS TO SAFE MACHIN- on the special order of tho board of directors in the ERY - FELLOW-SERVANT - INSPECTOR AND BRAKEMAN place of certificates lost or destroyed, on proof of such NOT. — It is the duty of a master not only to provide, loss and destruction, and on receiving security to inin the first instance, proper and safe machinery for his demnify the company against loss consequent upon employees, but to use ordinary care by inspection to the issuing of such new certificates. Ileld, the issuing see that the machinery remains safe. An inspector of of the new certificates to B. & P., and the allowing cars on a railroad is not a co-servant of a brakeman, so the transfer of the stock to them was a breach of the as to relieve the railroad company from liability for duty which the company owed to F. as the holder of such inspector's negligence causing injury to the brake- the original certificates, and this breach of duty creman. Negligence on the part of the corporation may ated a liability on the company to replace the stock to consist of acts of omission or commission, and it neces- which F. was entitled, or to account for its value. The sarily follows that the coutinuing duty of supervision issuing of the certificates, under the by-law providing and inspection rests on the corporation ; for it will not for the issue of certificates in place of such as may have do to say that, having furnished suitable and proper been lost or destroyed, does not affect the liability of machinery and appliances, the corporation can there. the company to F., as the holder of the original certiafter remain passive. The duty of inspection is affirm- ficate. The object of the by-law is to enable persons, ative, and must be continuously fulfilled and positively whose certificates appear to havo been lost or deperformed. In ascertaining whether this has been stroyed, to obtain others, on indemnifying the comdone or not the character of the business should be pany against loss, in case other parties should assert considered, and any thing short of this would not be rights against the company under the original certifiordinary care. As the corporation must act through cates; but does not affect tho rights of such parties. agents and employees, the negligence of tho employee The company is not liablo for the dividends paid on upon whom the duty of inspection is devolved is the the stock, before it had notice of tho transfer of the negligence of the corporation. The brakemen on certificates to F. Unlike the transfer of the stock, the freight trains and an inspector of such trains cannot surrender or production of tho certificates was not be regarded as co-employees in such sense as to pre- necessary to draw tho dividends. Until the company vent the former from recovering of the corporation was notified of the transfer of the certificates, it because of the negligence of the latter. Greenleaf v. was warranted in paying the dividends to V., the I. C. R., 29 Iowa, 14; Kroy v. C., R. I. & P. R. Co., registered owner, or to his order, and by paying 32 id. 357; Buzzell v. Laconia Mfg. Co., 48 Me. 113; the dividends to B. & P. as purchasers under V., Shanny v. Androscoggin Mills, 66 id. 420; Snow v. the company is as fully protected as if the payHousatonic R. Co., 8 Allen, 441; Gilman v. Eastern R. ments had been made to V. directly. Until the Co., 10 id. 233; S. C., 13 id. 433; Ford v. Fitchburg R. transfer of the stock to the holders of the original Co., 110 Mass, 241; Mullan v. Phila. & Southern M. S. certificate was refused, or they had notice of the Co., 78 Penn. 25; Chicago & N. W. R. Co. p. Jackson, transfer of tho stock to other parties, the statute of 55 Ill. 492; Brabbits v. Chicago & N. W. R. Co., 38 Wis. limitations did not begin to run. Boynton, J., was of 298; Harper v. R. Co., 47 Mo. 567; Brothers v. Carter, opinion that as the new certificates were issued in 52 id. 373; Porter v. Hannibal & St. Jo. R. Co., Sup. good faith by the company, in accordance with the byCt. Mo., Oct. Term, 1879; Thompson v. Drymala, 1 N. law, it was discharged from further liability. CleveW. Rep. 17; Warner v. Erie R. Co., 39 N. Y. 468; lund & Mahoning Railroad Co. v. Tapett's Adm's. Laning v. N. Y. C. R. Co., 49 id. 522; Flike v. Boston | Opinion by White, J. & Albany R. Co., 53 id. 549. This last case, it is in- | [Decided March 30, 1880.]
MUNICIPAL BONDS — BOARD OF EDUCATION - ACTS And while the modern authorities hold that a covenant IN ISSUING BONDS IN EXCESS OF POWER DO NOT REX- in a deed against incuinbrances would embrace tho DER BONDS VOID – INNOCENT HOLDER. — (1) Where a inchoate right of dower, none can be found which power to contract is conferred by statute and has been hold that in a policy of insurance the word incumfully executed, and something additional not author- brance would embraco such a claim or interest as a ized by the statute is stipulated to be done, which is contingent right of a woman whose husband is still clearly distinguishable from the rightful execution, living. Virginia Supreme Court of Appeals, March the execution of the power, so far as authorized, is Term, 1879. Southern Mutual Insurance Co. v. Kloeber. good, and void as to the excess. (2) A board of educa- Opinion by Christion, J. (Appearing in 31 Grattan's tion, under the provisions of the act of March 13, 1868 Reports.) The same doctrine is held in Virginia Fire & (S. & S. 710), authorizes it to borrow money to pay Marine Insurance Co. v. Kloeber, decided by the same existing indebtedness by the issue and sale of bonds court at the same time. Opinion by Anderson, J. bearing interest at a rato not exceeding eight per cent Citing Wooddy v. Old Dominion Ins. Co., 31 Gratt. per aunum, payable semi-annually, agreed to borrow a 362, and Hough v. City Fire Ins. Co., 29 Conn. 10. sum of money at an aggregate rate of interest of fif
FIRE INSURANCE –
VALUATION WITHOUT teen per cent, in manner following: For the amount
WRONGFUL INTENT, IN PROOF OF LOSS, DOES NOT AVOID su to be borrowed bonds were to be issued bearing the
POLICY. - - In the preliminary proofs of loss of property authorized rate of interest, and for the excess of interest orders on the treasury were to be issued payable at
insured against fire, the plaintiff, who was insured
stated the value at $5,000. In an action on the policy the same time as the legal interest. The bonds were
the referee found the value to be $2,000. The regularly issued, bearing eight per cent interest, and sold at par, and the money was received and used as
referee likewise found that the plaintiff, in making authorized. For the excess of interest, orders on the
proofs of loss for the purpose of establishing his claim treasury were at the same time issued and delivered to
under the policy, did not knowingly, willfully and for the purchaser, as agreed to by the parties, but were
the purpose of defrauding the defendant, swear to a
false statement of the value of the property, but that never presented for payment, and after their maturity he offered to return them for cancellation. IIeld, that
he grossly exaggerated its value and quantity, in conthis agreement to pay excess of interest is void, and
sequence of his imperfect knowledge of the English having never been executed in whole or in part, will language, while acting under the direction of the per
son who aided him in making the proofs. But accordnot avoid a recovery on the bonds. The fact that such agreement for unlawful interest was made does not
ing to the finding of the referee, the actual value of make the purchaser chargeable with notice of the prior
the property destroyed exceeded the amount of insurfraudulent practice of members of the board in incur
ance upon it. Under these circumstances, if the plaintring the debt, for the payment of which the money
iff did honestly, or without any fraudulent intent, was borrowed, which had no connection with the sale place an extravagant valuation upon the property, it of the bonds, and of which the purchaser had no
would not prevent a recovery upon the policy. Parker knowledge. State of Ohio ex rel. Laskey v. Board of
v. Amazon Ins. Co., 31 Wis. 361; Ins. Co. v. Weides,
14 Wall. 375; Williams v. Phønix F. Ins. Co., 61 Me. Elucation of Perrysburg. Opinion by Johnson, J. Oakey, J., dissented, being of opinion that the real
67; Moore v. Protection Ins. Co., 29 id. 97; Franklin F. transaction was a sale of bonds at less than par, in
Ins. Co. v. Updegraff, 43 Penn. St. 350; Marion v. violation of the statute.
Great Republic Ins. Co. of St. Louis, 35 Mo. 148; Wolf
v. Goodhue F. Ins. Co., 43 Barb. 400. Wisconsin Su[Decided March 16, 1880.]
preme Court, May 27, 1880. Dogge v. North-western
National Insurance Co. Opinion by Cole, J.
FIRE INSURANCE -- WAIVER OF CONDITION - WHAT
IS NOT. – A policy of insuranco against fire contained, FIRE INSURANCE - INCHOATE RIGHT OF DOWER NOT among other conditions, the following: “And whenAN INCUMBRANCE AVOIDING POLICY. - The existence ever required, the insured or person claiming shall of an inchoate right of dower in the wife of a former | produce and exhibit the books of account, bills of purowner of insured real property does not render a state- chase, or duplicates thereof, and other vouchers, to the ment by the insured in the application that his inter-insurers or their specially authorized agent, in support est in the property is “feo simple," a misrepresentation of the claim, and permit extracts and copies thereof to avoiding the policy under a condition warranting the be made; and until such proofs and exhibitions are truth of the statements made in the application. An produced, and permitted by the claimant, when reinchoate, contingent right of dower is defined by quired as above, the loss shall not be payable." After Bishop as a mero possibility; not only is it no estate, a fire whereby a loss occurred to the insured, notiee but the right itself is a mere contingent possible thing and preliminary proofs of loss, as required by another If the wife dies before her husband, all is vanished. condition of tho policy, were furnished. This prelimiJudge Baldwin defines such a right in the wife as an pary proof, however, not being satisfactory, an agent emanation from the ownership of her husband. See of the company, sent to make scrutiny of the matter, Wilson v. Davidson, 2 Rob. 381, 405. Before assign- demanded of the insured that ho should produce his ment, even after the death of husband, the widow has bills of purchase, and upon being informed by the inno estate in the lands of her husband. It is a mere sured that these had been burned, the agent demanded chose in action, and before assignment is strictly a duplicates of such bills, which tho insured failed to claim. Greenl. Cruise tit. Dower, ch. 3, § 1; 4 Muuf. produce. The company refused to pay the amount 382; 4 Seld. 110. In a recent Missouri case, Bliss, J., claimed by the insured, and his attorney notified the observed of this sort of inchoate dower that it is not company of his intention to instituto suit for the rean estate, but a mero contingent claim, not capable of covery of the claim. To this notification the agent sale in execution, nor the subject of grant or assign. replied by letter as foilows: "In reply to your favor of ment. The dowress has merely a contingent possibility 26th, giving notice of intended suit, I am instructed to of interest in the premises, but no property, no actual say, that the Farmers' Fire Insurance Company will iuterest in it which is the subject of grant or assign contest the payment of A. Mispelhorn's claim (in' its ment.” 44 Mo. 512, 515; see, also, 2 Bish. on Mar. Wom., | present exaggerated form), under the terms and con$ 348. Formerly it was questioned even whether the ditions of his policy, though we should have preferred existence of this inchoate dower could be alleged as a an amicable compromise. The company is more imbreach of warranty in a deed against incumbrances. pelled to this course, as we cannot learn that the City Co., on the same risk, have, or intend paying the claim and has been abrogated by the new Code, permit me as made. When they pay, this Co. will probably not to make the following observations: delay longer. If, however, you prefer litigation with 1. It seems to me that Mr. Murray states the reason this Co., we shall contest the claim as above." The of the rule somewhat plainly himself when he says at insured afterward sued the company, and offered this p. 50: “If both parties should set up an apparently letter in evidence to show waiver of further prelimi- good title and it should become necessary to determine nary proof of loss under the afore-recited condition their validity the action should perhaps be dismissed, of the policy. Held, (1) that this letter was no waiver, because it seems the courts of one State or country cannot but meant that the company still adhered to and would settle the title to lands in another." But better still is persist in its refusal to pay the claim, because it was the lauguage of Hare & Wallace in their notes on excessive in amount, and that the terms and condi- Smith's Leading Cases (7th Am. ed.) p. 1063: “A tions of the policy would be relied on as a protection court of justice should obviously be slow to entertain. against what was regarded as an exaggerated demand. a question depending upon the local law of a foreign (2) That the object of the condition in the policy was country and which it can only resolve at second hand to put means in the power of the insurer to scrutinize by the testimony of experts. A judgment in trespass the claims of the insured and to protect itself against may be as conclusive of the right to real estate as a fraud. The provision was such as the parties were judgment in a writ of entry or ejectment, and should competent to make, and having made it a part of their therefore only be pronounced by a tribunal which can contract, the courts have no dispensing power over it. take judicial cognizance of the statutes, principles and The insured was not only bound to produce and exhibit usages constituting the lex loci rei sito which must ulto the company or its agent, upon being required so to timately prevail where immovable property is condo, the bills of purchase if within his power or control, cerned. If a foreign court could adjudge such quesbut if they were destroyed, he was bound to produce tions it might mulct the defendant in damages for an duplicates thereof, if it were possible for him so to do. act which was subsequently ascertained to be a Compliance with this condition, if required by the legitimate exercise of the authority implied in ownercompany, was indispensable to the insured's right of ship.” The rule is as old as the law and has the action. Maryland Court of Appeals. Farmers' Fire
sanction of the most learned jurists in this country Insurance Co. of York, Penn., v. Mispelhorn. Opinion and in England, including Chief Justice Marshall and by Alvey, J. (To appear in 50 Maryland Reports.)
Lord Mansfield, and has been affirmed in nearly every
There would seem therefore to be some reason in not
such cases when by the law of the place the matters XIV NEVADA REPORTS.
proved might not constitute a trespass, or the plaintiff
be entitled to sue if it were, and every reason for Reports of Cases determined in the Supreme Court of the State of Nevada, during 1879 and 1880. Reported by
remitting the parties to that jurisdiction where the Chas. F. Bickell, clerk of Supremo Court, and Ilon.
local statutes, laws and customs can be intelligently Thomas P. Hawley, Associate Justice. Volume XIV.
and with certainty administered. Although in some San Francisco: A, L. Bancroft & Co., 1880. Pp. 500. few cases it inay be a hardship, no rule of l:w can pre
vent that. The contrary rule would be productive of HIS volume contains among others the following vastly more. striking cases: Blaisdell v. Stephens, p. 17. - In an
2. Respecting the claim that the rule has been abroaction of trespass against two or more acting inde- / gated by the new Code. pendently, and producing a result injurious to the 1. Inlthe article alluded to, the cases of the American plaintiff, ono cannot be held for the acts of the others.
Union Telegraph Co. v. Middleton and De Courcy v. State v. Cliford, p. 72. — If one finds lost property, and Stewart, are noticed. One was a decision by the New knows the owner, or there are marks on the property | York Court of Appeals rendered March 19, 1880, in a by which he can ascertain the owner, and he converts
case begun in December, 1879 (and which came thus the property to his own use, intending at the time of quickly before the court on appeal from an order of finding so to convert it, ho is guilty of larceny, but not
arrest), and the other by the General Term of the Suso if that intention is not formed until afterward.
preme Court, First Department, rendered April 7, State v. Ah Chwey, p. 79. -- On a question of personal | 1880. As the sections 982 and 991 of the new Code identity, a witness testified that the defendant had quoted to sustain the above position have been in force certain tattoo marks on his person. The court com- since September 1, 1877, these decisions must be acpelled the defendant, against his objection, to exhibit cepted as settling the law under the new Code the his person to the jury. Held, no error. Gaston v. other way Drake, p. 175. — An agreement before an election to
2. Neither of the expositors of the Code, Mr. Bliss share the salary aud fees of an office, in consideration
or Mr. Throop, has taken the view that these sections of the plaintiff's using his influence to elect the de- of the Code extended the jurisdiction of our courts to fendant to such office, is void. State v. Hallock, p. cases of this character. Indeed, I have a letter from 202. – An act to establish and maintain a State asylum Mr. Throop in which he distinctly assures me that for the poor and maimed of the State is unconstitu- such was not the intent. Equitable actions to compel tional. State v. Nevada, p. 439. — It is no defense to specific performance of contracts relating to land in an indictment for escape, that the jail was unhealthful foreign jurisdictions, to compel conveyances of lands and filthy.
so situated, etc., have been entertained for some time,
and the last sentence of section 982, which is new and is CORRESPONDENCE.
the foundation of your correspondents claim, relates
to such actions and provides for their place of trial. It ACTION FOR TRESPASS ON LAND IN ANOTHER STATE.
is to be read as if the words, "" of which the court has
jurisdiction,” were interpolated; as regulating the To the Editor of the Albany Law Journal:
practice, not as extending the jurisdiction. Regarding the article contributed by Mr. F. P. Mur- 3. Section 982 reads as follows: * Each of the followray to your last number, by which he seeks to establishing actions must be tried in the county in which the that the rule of law requiring actions for injuries to subject of the action or some part thereof is situated; real property to be brought in the jurisdiction where an action of ejectment; for the partition of real propthe real property is situate, is not founded in reason, erty; for dower; to foreclose a mortgage upon real