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if duly presented; (3) but that the measure of dam- Prentice v. Knickerbocker Life Insurance Co., p. ages was the actual loss, and evidence was admissi- 483.- A policy of life insurance, assigned to plaintble to reduce it to a nominal sum.
iff, provided that the defendant should be notified Comer v. Cunningham, p. 391. Williams bought forth with of the death of the insured, and that the of plaintiffs, at Savannah, Georgia, 118 bales of cot- owner should, as soon as possible thereafter, deliver ton, giving therefor his checks on Bryan & Hunter, to the defendant a particular account of the cause, of the same place, having previously put the latter time, place, and circumstances, and that unless such in funds by his draft on defendants to their order, proofs were presented within twelve months from and otherwise. Plaintiff delivered sixty bales to the time the death occurred the policy should be Williams, and it was shipped by Williams to defend- forfeited. After the assignment the plaintiff paid ants, at New York, the bill of lading being in his the premiums by his checks. About July 1, 1872, name and having attached thereto the draft indorsed the plaintiff, being about to go to Europe, paid in by B. & H. Defendants paid the draft on presenta- advance the premium due August 10. It was then tion, the amount being more than the price of the agreed between him and the general agent that if sixty bales, and the transaction being according to the insured should die before the premium became their custom with Williams, and received the cot- due, the company's agents would know of it before ton without knowledge of any claim on it. One of the plaintiff could, and that the premium should be the checks on B. & H., being post-dated, was dis returned, and that “there was no trouble at all in honored, and plaintiffs brought replevin for forty- regard to that whole thing." The plaintiff returned five bales, part of the sixty, relying on a statute of in October, 1872. The insured died July 27, 1873, Georgia which provides that “cotton, rice, and but his death was not known to either party until other products sold by planters and commission July, 1875. The plaintiff paid the premiums for merchants on cash sale shall not be considered as 1873 and 1874, having received notice from the comthe property of the buyer, or the ownership given pany of the time when they were to fall due, and up until the same shall be fully paid for, although receiving renewal receipts. In June or July, 1875, it may have been delivered into the possession of plaintiff learned of the death, notified the company, the buyer.” Held, that the action could not be received blanks for proofs of death, and delivered maintained; that assuming that the statute was part the proofs to them July 9. The proof stated the of the contract, it simply made the delivery condi- death in July, 1873. The company retained the tional, affected nothing but the delivery, and could proofs until October next without objection, and not affect the rights of a bona fide purchaser in this then took the ground that the policy was forfeited State; and the sale being absolute and uncondi- by the omission to serve the proofs within twelve tional, title passed to defendants.
months of the death. The policy was payable in National Trust Co. v. Gleason, p. 400. — In an ac- three months after proof of death. The company tion against several, including a married woman, for retained the premiums paid after the death, and money had and received by one by means of a never offered to return them until after the action. forgery to which all were parties, it is necessary to Held, that the forfeiture was waived. a recovery against all, to show that all were inter- Steinbach v. Relief Fire Insurance Co., p. 498. ested in the money received; mere complicity in the The defendant, a New York corporation, insured forgery will not charge any in such an action; and the plaintiff at Baltimore, Maryland, against fire, on the married woman could not be rendered liable “his stock of fancy goods, toys, and other articles without showing a contract by her in her separate in his line of business, contained in his store occubusiness, or for the benefit of her separate estate, or pied by him as a general jobber and importer." for which she had charged her separate estate. The The policy contained a condition against storing or conviction of one of felony in another State does keeping hazardous, extra hazardous, or specially not disqualify him as a witness in this.
hazardous articles in the second class of hazards anHennequin v. Clews, p. 427. — A discharge in nexed to the policy, and that during the time of bankruptcy bars an action for the conversion of se- such storing or keeping the policy should be of no curities pledged to the defendant as collateral to a effect. “Fire-crackers in packages” were classed loan, the cause of action not being a debt created as hazardous No. 2 in the second class, and fireby fraud, nor while acting in a fiduciary capacity, works were classed as specially hazardous. There within the meaning of the bankrupt act.
was a written permission “to keep fire-crackers on Butler v. Butler, p. 472. -- Plaintiff agreed to sale,” but no express permission to keep fireworks. furnish and erect on defendant's premises a gas The plaintiff kept fireworks and a fire originated generator "all ready to make gas,” the defendant from them. The plaintiff sued to recover for the agreeing to pay freight, furnish tank and house, loss in a Baltimore court, the cause was removed to and pay $1,500 for the machine, “$500 when the the United States court, and on the trial the court works are on the ground," and the balance in two held that the policy prohibited keeping fireworks, subsequent specified installments. “The plaintiff and rejected proof to show that they constituted an shipped the materials, which the defendant received article in the line of business of a “German jobber and paid the freight on, but the defendant refused and importer,” and gave judgment for defendant. to permit him to erect the machine. Held, that the This was affirmed by the United States Supreme contract was entire and indivisible, and an action Court. Before that action the plaintiff had sued for the contract price was not maintainable. the Lafayette Fire Insurance Company in the New
York Supreme Court on a similar policy on the same attendance and necessary to enable him to prescribe, stock and had recovered, and on appeal the evidence a physician, who had ceased to attend a certain parejected in the United States court was held com- tient, but continued to know and see him, may tespetent, and the appellate court refused to be bound tisy as to his state of health when he ceased to atby the rule laid down in the United States Supreme tend him, and afterward, and whether, in his opinCourt. Plaintiff then brought this action to reform ion, excluding knowledge and information obtained the policy by inserting permission to keep fireworks, while treating him, and judging from his appearon the ground that it was omitted by mistake, and ance, he was and continued in good health. But to recover on the policy so reformed. Held, that see, contra, Grattan v. Metropolitan Life Ins. Co., 21 the judgment of the United States Supreme Court Alb. L. J. 288. is a bar to this action.
The volume contains the proceedings of the court People ex rel. Kelly v. Common Council of Brooklyn, upon the death of Chief Judge Church.
The charter of the city of Brooklyn prohibits every alderman from holding “any other
DRINKS, DRINKERS AND DRINKING. public office," and provides that by election to and acceptance of “such public office,"
?" his office as such alderman shall immediately become vacant,”
CHE dry and thirsty days of summer are here once
more. Drinking is the order of the day. Our and a special election shall be held to fill the va- bodies require to be constantly moistoned internally, cancy. An alderman was elected representative to else with the thermometer among the nineties, quickly Congress, and accepted the office. Held, that his
would the human form divine become little heaps of
dust and ashes. If we cannot drink just now let us office as alderman immediately became vacant; no
think about it. Longfellow says, “He who drinks judicial proceeding was necessary to determine his
beer, thinks beer; and he who drinks wine, thinks title; and it was the duty of the defendant to order wine." Let us for a few minutes foudly imagine the a special election to fill the vacancy.
converse of this to be true, and while we think of beer, McDonald v. Mallory, p. 546. — Under a statute of
cider, wino and ale, let us drink in fancy.
In dealing with this subject let us take the division New York, giving a right of action for wrongfully
suggested by Lindley Murray's definition of a noun, or negligently causing the death of any person, an aud speak of “ person, place and thing." action may be maintained' for negligently causing Then, firstly, as to the “person.” A “common the death of a citizen of New York on the high drunkard” is not a regular tippler, but one who is freseas, on a vessel hailing from and registered in a
quently drunk. Proof that one was drunk six times
on six different days in three months, when there was New York port, and employed by the owners at the
no evidence of his state on the other days, does not time in their own business.
entitle him to the presumption that he was sober on Dickinson v. Edwards, p. 573. – Where a resident the other days. Com. v. McNamee, 112 Mass. 285. of this State makes a note here, dated, payable, and
The rule of law is that things are presumed to continue intended to be discounted here, and specifying no
in statu quo.
An “habitual drunkard” is one who has the habit rate of interest, and the note is first negotiated in
of indulging in intoxicating drink so firmly fixed that another State, at a rate of interest lawful there but
he becomes drunk whenever the temptation is preunlawful here, it is invalid for usury.
sented by his being near where liquor is sold. MagaThe following are of important local application: hay v. Mugahay, 35 Mich. 210. Underwood v. Sutcliffe, p. 58. — A receiver in sup
The phrase "addicted to the excessive use of intoxi
cating liquors" means not the occasional excessive plementary proceedings cannot maintain an action
use, but tho habitual excessive use. Moury v. Home to have the judgment under which he was appointed
Ins. Co., 1 Big. Life and Acc. Ins. Co. Cas. 698. declared a lien upon lands conveyed by the judg- A court being called upon to define in an insurance ment debtor in fraud of his creditors.
what was meant by saying that “a man had alBrown v. Clark, p. 369. — The statutory revoca
ways been sober and temperate,” very wisely con
cluded that such a thing could not be said of one who tion of an unmarried woman's will by her subse
although usually sober and temperate in his habits yet quent marriage is not abrogated by the married
occasionally indulges iu drunken debauches which women's enabling acts.
sometimes end in delirium tremens. Mutual Benefit First National Bank v. Tamajo, p..476. – An oral Life Ins. Co. v. Hotterhof, 2 Cin. Sup. Ct. agreement between parties to an action on trial be- To say that a mau is "intemperate" does not necesfore a referee, entered by the stenographer in his
sarily imply that he is in the habit of getting drunk.
Mullinex v. People, 76 111. 211. We fancy, however, the minutes, but not signed, and fixing no rate of com
courts would not hold the converse of this. pensation, but leaving it to the referee to fix the A“saloou-keeper" is one who retails segars, liquors, rate, is not an agreement in writing within section et hoc genus omne. Cahill v. Campbell, 105 Mass. 60. 313 of the old Code of Procedure.
In England, one who on Sunday walked to a spa two Matter of Garvey, p. 523. — A sidewalk is within
and a half miles away from his home for the purpose
of drinking the mineral water for the benefit of his the purview of a statute providing that when a
health, and then took some ale at an hotel (to keep the street has once been paved and the expense assessed
water down, we suppose), was held by the Court of to the adjoining owners, it shall not be thereafter Common Pleas to be a “traveller.” Pepler v. Richpaved at their expense, unless a majority of such ardson, L. R., 4 C. P. 168. owners petition for it.
England is a small country; one cannot travel far in Edington v. Ælna Life Ins. Co., p. 564. — Under
any direction there without getting his feet damp,
like Kanute and his friends. We presume this is why a statute prohibiting a physician from disclosing any what would here be called “taking a stroll" is there information acquired in the course of professional dignified by the name of "travelling."
In considering the question of selling liquor to a In Massachusetts a jury was held warranted in find“minor," the court held that the fact that a youth ing “ale” to be intoxicating, merely on the testimony wore a beard and said that he was 21 was no proof that of a witness who saw and smelled, but did not taste he was an adult. Gelty v.State, 41 Ind. 162.
it. Haines v. Hanrahan, 105 Mass. 480. Perhaps these The Bench doubtless believed that although every twelve men, good and true, had bad a view themAmerican boy may become Presidevt, still every one selves. is not a George Washington; but that, as Mark Twain In Maine one may be indicted and convioted for says, "Some Americans will lie." As to beards, na- selling for tippling purposes “cider and wine,” alture occasionally “bursts out with a chin-tuft" before though made from fruit grown in the State, if the jury her turn, or where she should not.
find that they are intoxicating. State v. Page, 66 Me. Now as to “place.” Judges do not exactly know- 418. at least when on the Bench-what a.“saloon" is. They How much and how long would it take the jury to say that it does not necessarily import a place to sell find this out? Would they be allowed to take speciliquors; that it may mean a place for the sale of general mens with them into their withdrawing-room, as they refreshments, Kelson v. Mayor of Ann Arbor, 26 Mich. do documents, to examine? Or would the judge look 325; or that it may mean a room for the reception of upon cider and native wine as Mr. Justice Creswell company, or for an exhibition of works of art, etc. State did upon water? A counsel once objected to a jury v. Mansker, 36 Tex. 364. This latter idea shows how having water while considering their verdict. “Why high-toned Texan judges are, and that they have not, Mr. , why not?” queried the judge, “water travelled in foreign parts. Neither an inclosed park of is neither meat' nor 'fire,' and no sane man can say four acres in extent, nor an uninclosed and uncovered it is 'drink;' let the jury have as much as they platform, erected for the votaries of the Terpsichorean
want.” * art and where lager beer is sold, can rightly be con- The “Sabbath night" includes as well the time besidered a “saloon," or a “house," or "building," tween midnight on Saturday and daylight on Sunday, withiu the meaning of the Connecticut statute forbid- as the time between dark on Sunday and midnight. ding Sunday selling of intoxicating liquors, etc. State Kroer v. People, 78 III. 294. v. Barr, 39 Comm. 41.
In England “habitual drunkenness" is not cruelty We opine that the Texan court would have held in the eye of the law (N. B.- 'Tis strange that jusboth this park and platform a "saloon," as there would tice should be blind and law a Polyphemus), so to encertainly be “room for the reception of company,” title a wife to divorce. L. R., 1 P. & M. 46. and if the dancing was good and the dresses of any As to the mode of selling, Richards, C. J., thought Worth these would be an exhibition of works of art. that selling a “bottle of brandy" for $1.25 was selling
A "cellar” may be referred to as “the above-men- by retail (Reg. v. Durham, 35 U. C. R. 508); and in tioned house." Com. v. Intoxicating Liquors, 105 Mass. another case Haggerty, C. J., said that he would as181. In England it was held that a covenant not to sume that a sale of a “bottle of gin” at sixty cents use a house as a “beer house was not broken by the was a sale by retail. Reg. v. Strachan, 20 C. P. 184. sale under a license of beer by retail to be consumed While in Illinois the court held that proof that intoxioff the premises. L. & N. W. Railway v. Garnett, L. cating liquors were retailed " by the drink" warranted R., 9 Ex. 26. One Schofield had a license to sell beer a finding that the sale was in “no larger quantity than
not to be drunk on the premises," the bartender a quart" (as restricted in the Ill. Rev. Stat., 1845). handed a mug of beer through an open window in Lappington v. Carter, 67 Ill. 482. See, also, United States Schofield's house to a thirsty soul, who paid for it and V. Jackson, 1 Hugh, 531. The judges of this court immediately drank it standing on the Queen's high-clearly never heard of the Duke of Tenterbelly. way, but as close as possible to the window; the Court Bishop Hall tells us that this famous nobleman, when of Queen's Bench considered that this was not a case returning thanks for his election, took up his large of selling beer “to be consumed on the premises." goblet of twelve quarts, exclaiming should he be false Deal v. Schofield, L. R., 3 Q. B. 8.
to their laws, “Let never this goodly formed goblet of As to the "thing” itself. The phrase "spirituous wine go jovially through me," and then, says the hisliquors" does not include "fermented liquors." Statetorian, "he set it to his mouth, stole it off every drop, V. Adams, 51 N. II. 508.*
save a little remainder, which he was by custom to set Cider is not a “vinous liquor." Feldman v, Mor- upon his thumb's nail and lick it off as he did.” rison, 1 Ill. App. 469. This seems reasonable enough Now that we have finished we fear that the foregoing in view of the decision that “vinous liquors ” mean will not prove as satisfying as the descriptions of Hawliquors made from the juice of the grape. Adler v. thorne's old Inspector, and that not only is the reader State, 55 Ala. 16.
and the writer, but also the thing written is “dry." A “dram" in common parlance, in Texas, means
R. V. ROGERS, JR. something that has alcohol in it - something that can intoxicate; at least so say the judges. Lucy v. State,
ACTION BY INHABITANT OF CITY AGAINST 32 Tex. 227. Some years ago in Indiana they were very virtuous,
CONTRACTOR WITH CITY FOR and the court decided that the mere opinion of a wit
BREACH OF CONTRACT. ness that common “brewer's beer was intoxicating was not sufficient to prove that it was so, unless the
IOWA SUPREME COURT, JUNE 15, 1880. testimony of the witness was founded on a personal knowledge of its effects, or of its ingredients or mode DAVIS v. CLINTON WATER-WORKS COMPANY. of manufacture; and the court could not take judicial
A water-works company made a contract with a city to notice that it was intoxicating. Glaso v. State, 43 Ind.
furnish water to be used in such city for the extinguish483.
ment of Ares, etc. Held, that an inhabitant of the city But alas for the good old days and the childlike in- had no right of action against the water-works comnocency of judges and jurymen! Now both courts pany for loss from a failure by it to fulfil the contract, and juries in that State will take notice of the fact that whereby his property was destroyed by fire. “whisky” is an intoxicating drink without any proof. Eagen v. State, 53 Iud. 162.
by fire. Sufficient facts appear in the opinion. * But ale and strong beer are "strong and spirituous liq
Nevin v. Ladue, 3 Den. 437, one of the most enter- * The oath of the officer in charge of the jury, down this taining cases in the books.- ED. Alb. L. J.
way, says “water excepted.”—[ED. Alb. L. J.
From a decision overruling a demurrer to the com- benefits enjoyed on account of improved streets, peace plaint defendant appealed.
and order enforced by police regulations, and the like.
It cannot be claimed that the agents or officers of the E. S. Bailey, and Wright, Gatch & Wright, for aprel
city employed by the municipal government to supply lant.
water, improve the streets, or maintain good order, J. S. Darling and A. R. Cotton, for appellee.
are liable to a citizen for loss or damages sustained by
reason of the failure to perform their duties and obliBECK, J. 1. The petition alleges that the defendant
gations in this respect. They are employed by the city entered into a contract with the city of Clinton to
and respousible alone to the city. The people must supply water to be used by the city for the purpose of
trust to the municipal government to enforce the disextinguishing fires. The contract is embodied in an
charge of duties and obligations by the officers and ordinance passed by the city authorizing defendant to
agents of that government. They cannot hold such establish its works for supplying water to the city, and
officers and agents liable upou the contracts between providing for compensation to be paid defendant by
them and the city. These views and conclusions are the city for water furnished for public purposes, in supported by the following authorities: Atkinson v. cluding the extinguishing of fires. The terms and
Newcastle & Gateshead Water Co., L. R., 2 Exch. Div. conditions of this contract need not be recited. It is
441; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. sufficient to state that the parties thereto were the city 24; Vroomun v. Turner, 69 N. Y. 280; Wharton on and the defendant, and the plaintiff in this case in no
Negligence, $$ 438, 439, 440; Shearman & Redfield on seuse was a party to the contract. The power of the
Negligence, 854. The cases cited by counsel for plaintcity to pass the ordinance and enter into the contract
iff, we think, are not in conflict with the view we have is not questioned. The petition alleges that a fire
above expressed. occurred in certain store-rooms owned by plaintiff in
3. Counsel for defendant base an argument upon the the city, and they were entirely consumed, for the rea
position that the city itself would not be liable to deson that the necessary supply of water was not fur
fendant in case it owned and operated the water-works. nished by defendant, and a sufficient pressure of water
They agree that the defendant, therefore, would not was not found at the hydrants contiguous to the build
be liable to plaintiff. We find it unnecessary to conings, which was caused by defective machinery and the
sider the argument, or the premise upon which it is negligence of defendant's servants, all of which was
based. We are content to rest our conclusion upon the in violation of defendant's contract under said ordi- grounds and arguments we have attempted to present. nance of the city. A demurrer to the petition was
The Circuit Court erred in overruling the demurrer overruled.
to plaintiff's petition. Its judgment is, therefore, 2. The only question presented in the case is this reversed. one: Is the defendant liable to plaintiff upon the contract embodied in the ordinance? The petition does
MORTGAGE OF CEMETERY LOTS INVALID. not allege or show any privity of contract between plaintiff and defendant. The plaintiff is a stranger, and the mere fact that she may find benefits therefrom:
NEW YORK SUPREME COURT -SPECIAL TERM, JUNE, by the protection of her property, in common with all
1880. other persons whose property is similarly situated, does not make her a party to the contract, or create
THOMPSON v. HICKEY. a privity between her and defendant. It is a rule of
Plaintiff conveyed to H., by deed absolute in form, a lot in law, familiar to the profession, that a privity of con- a cemetery in which plaintiff had buried his children, tract must exist between the parties to an action upon This deed was intended as a mortgage security for a a contract. One whom the law regards as a stranger loan of money. H. conveyed the lot to F., who conto the contract camuot maintain an action thereon. veyed it to C. for a valuable consideration, C. knowing The rule is founded upon the plainest reasons. The
that interments had been made in the lot. Held, that contracting parties control all interests, and are enti
the deeds were void and equity would restrain a re
moval of the bodies interred. tled to all rights secured by the contract.
If mere strangers may entforce the contract by actions. on the ACTION by Andrew J. Thompson against William
, to would be no certain limit to the number and character veyance of a lot in a cemetery, and to restrain the of actions which would be brought thereon. Excep- removal of the bodies of plaintiff's children buried tions to this rule exist, which must not be regarded as therein. Sufficient facts appear in the opinion. abrogating the rule itself. Thus, if one, under a con
John T. McGowan, for plaintiff. tract, received goods or property to which another, not a party to the contract, is entitled, he may main
Charles Bradshaw, for defendants. tain an action therefor. So, the sole beneficiary of a VAN VORST, J. The evidence clearly enough shows contract may maintain an action to recover property that the conveyance made by the plaintiff to the deor money to which he is entitled thereunder. In these fendant Hickey, of the burial plot, was intended as cases the law implies a promise on the part of the one security only for the repayment of the moneys loaned; holding the money or property to account therefor to and although it is absolute in form, it was a mortgage the beneficiary. Other exceptions to the rule, resting security only, which character it has not lost, and as upon similar principles, may exist. See National such it must be considered. Horn v. Keteltas, 46 N. Bank v. Grand Lodge, 98 U. S. 123.
Y. 605. The case before us is not an exception to the rule we The right of the plaintiff as mortgagor could not be have stated. The city, in exercise of its lawful author- divested by the private sale made by Hickey to Farnity to protect the property of the people, may cause ham, and by the latter to Clark. Lawrence v. Farmwater to be supplied for extinguishing fires and for err' Loan and Trust Co., 13 N. Y. 200. Neither Hickey other objects demanded by the wants of the people. nor his immediate grantee could give any better right In the exercise of this authority it contracts with de- or interest than he really took. Besides, Clark, when fendant to supply the water demanded for these pur- he was asked on the trial as to his knowledge of the poses. The plaintiff received benefits from the water original transaction between plaintiff and Hickey, and thus supplied in common with all the people of the as to its being a loan of money, replied, “In writing I city. These benefits she received just as she does never heard of it.” A fair implication arises from the other benefits from the municipal government, as the qualification, that he had otherwise heard of it, and that would be sufficient to put him upon inquiry. versed at the General Term. Lautz v. Buckingham, 4 Hickey conveyed to Farnham for the nominal con- Lans. 484. But it is to be borne in mind that in that sideration of one dollar, and on the same day Farnham case no interment had been made in the lot at the time conveyed to Clark, for the consideration of two huu- the mortgage was given, and it may be that it might dred and twenty-five dollars, but Clark held back part not be considered an offense, either against good of the price until the bodies of the plaintiff's children morals, public policy, or against the spirit of the statshould be removed. The whole transaction between ute, to convey or mortgage a cemetery lot before an Hickey and the other defendants wears a suspicious interment had been actually made therein. For such appearance, which the evidence does not remove, and a sale or conveyance satisfactory reasons might possibly suggests a plan to deprive the plaintiff of the burial exist. A man might desire to change his lot for ove plot unjustly and without notice. But I apprehend larger or more eligible. that there are sufficient reasons in law and equity to I do not regard the act of April 5, 1850, as affecting prevent the consummation of the wrong.
the question we are now considering. It declares The Greenwood Cemetery Association was incor- under what circumstances a lot is inalienable. It does porated for the purpose of establishing a burial ground, not authorize a mortgage or a sale thereunder by imand for this purpose it was authorized to acquire a plication even. But that it is an offense against good tract of land within the limits of the city of Brooklyn. morals to mortgage a small isolated plot of ground in The corporation was authorized to sell the grounds in a cemetery, dedicated exclusively, under the sanction lots or plots, to be used exclusively as a place of burial of the law, as a sanctuary for the dead of one's family, of the dead (see the original act of April 18, 1839, and and already consecrated by the ashes of one's kindred, the several acts amending same). There does not I am sure cannot be well questioned. Such a transacappear in the charter of this corporation, in terms, any tion is clearly a breach of the policy of the statute, is absolute restraint upon the power of voluntary aliena- contrary to its equity, and is within the evils it was tion of a cemetery lot by an owner.
Yet I am per- designed to cure, and our moral nature protests against suaded that when a person has taken a conveyance of it. As a consequence of such a transaction, we have a burial lot, and has made interments therein of the here a stranger calling upon a father to disinter his dead of his family, it is in such condition that it can- three children, who have been buried for a period of not be mortgaged to secure the payment of a debt or ten years in a cemetery lot, with a threat that if the the return of money borrowed. Such an act is pro- parent will not he himself will do it. And suppose he hibited by the equity and true spirit of the statute. carries his threat into execution, what then? SepulFor observe how careful the Legislature has been to ture must, in the end, be had, and that, it is believed, secure the sleep of the dead from disturbance. The the statute was intended to secure permanently, against cemetery itself is exempted from public taxation, and disturbance from any such cause as is indicated by the the lots or plots of ground when conveyed are declared mortgage in question. to be exempt from assessment, and cannot be sold on The sentiments and feelings which people in a execution or be applied to the payment of debts under Christian State have for the dead the law regards and any insolvent law. And as no public road, street or respects, and however it may have been anterior to our avenue shall be laid out or opened over the land, the legislation on the subject of cemeteries, the dead themsame would seem to be absolutely secured against in- selves now have rights, which are committed to the vasion. A mortgage, equally with an execution upon living to protect, and in doing which they obtain a judgment, might in the end expose the lot for sale. security for the undisturbed rest of their own remains. And although the letter of the cbarter under considera- In any view which may be taken of this subject, I am tion is not so full, yet the Legislature has clearly ex- sure that the defendant should be restrained from inpressed its mind upon this precise subject in the pro-terfering with the children's graves. If the conveyvisions contained in chapter 133 of the Laws of 1847, ance executed by the plaintiff to Hickey, although it entitled an act authorizing the incorporation of “rural be in form absolute, is supposed to confer any present cemeteries.” By section 11 of that act it is provided right, it must yield to the easement of the bodies that when plots or lots shall be transferred to indi- already buried there, which should in no event be disvidual holders, and after there sball have been an in- turbed. Moreland v. Richardson, 22 Beav. 596; S. terment in a lot or plot so transferred to individual C., 24 id. 33; First Presbyterian Church v. Second Presowners, such lot or plot, from the time of such inter- byterian Church, 2 Brewst. (Penn.) 372. ment, shall be forever thereafter inalienable, and shall, But as has been already decided, the conveyance to upon the death of the holder or proprietor thereofy Hickey was a mortgage security only, and until the descend to the heirs-at-law of such holder or proprie- plaintiff's rights have been judicially ended through a tor, and to their heirs-at-law forever; and chapter 310 proceeding in court, his complete possession and conof the Laws of 1879 declares that it shall not be lawful trol of the lot cannot be interfered with, and for that to mortgage land used for cemetery purposes or to reason also the threatened acts should be restrained. apply it in payment of debts.
And a suit in equity is a proper proceeding to secure Legislation upon this subject has been in accord with such restraint. the sentiments of humanity, and with the spirit of our In Kurtz v. Beatty and another, 2 Pet. 566, 584, Judge civilization, and has shown a considerate regard for the Story says: “It is a case where no action at law could sanctity of the resting places of the dead. By the in- afford an adequate and complete remedy. The remedy corporation of cemeteries, and their preservation as must be sought, if at all, in the protecting power of a such, it has secured an immunity from disturbance for Court of Chancery, operating, by its injunction, to the dead, which had failed to be obtained through preserve the repose of the ashes of the dead and the burials in church yards, which were liable to be unset- religious sensibility of the living.' tled by the sale of church property.
Taking up dead bodies from the place where they When the case of Lautz v. Buckingham was before have been interred, without authority, is a misdeJustice Brady at Special Term, he distinctly pro- meanor at common law, Stephen's Com., vol. 4, 371; nounced against the legality of a mortgage executed Reg. v. Twiss, 10 B. & S. 298; see, also, Paper of Mr. R. upon a cemetery lot by the proprietor thereof. He Guernsey, read before Medico-Legal Society, Feb. 4, Bays, “regarding it in the light of a mortgage security, 1880, on the “ Law of Burial.” I think it is not to be sustained. It is against good But in addition to relief by injunction, I am of morals, and therefore against the policy of the law, to opinion that it should be adjudged, for the reasons encourage such instruments." 11 Abb. (N. S.) 64. It above stated, that the transfer made by the plaintiff to is true that the judgment of the Special Term was re- Hickey of the cemetery lot, as security for a loan of