601; Allen v. Merch. M. Ins. Co., 30 La. Ann. 1386; S. C., 31 Am. Rep. 243; Hubbard v. Hartford F. Ins. Co., 33 Iowa, 325; S. C., 11 Am. Rep. 125; Thomas v. Builders' F. Ins. Co., 119 Mass. 121; S. C., 20 Am. Rep. 317, and note, 319; Lindley v. Union Ins. Co., 65 Me. 368; S. C., 20 Am. Rep. 701; Sutherland v. Old Dominion Ins. Co., 31 Gratt. 176; Gee v. Cheshire Co. M. F. Ins. Co., 55 N. H. 65; S. C., 20 Am. Rep. 171. The principal authority is against the decided weight of authority, but it is in accord with the rule in this State.

latter's option. The court said: "The question| Am. Rep. 625; Landers v. Watertown F. Ins. Co., 86 presented by the amended replies has heretofore N. Y. 414; S. C., 40 Am. Rep. 554; Fireman's Ins. been passed upon by this court in the case of Luggs | Co. v. Holt, 35 Ohio St. 189; S. C., 35 Am. Rep. v. Liverpool, London and Globe Ins. Co., MS. opinion. In that case the court in rendering the opinion used this language: 'Appellant contende that the last insurance was absolutely void, and left the first in full force. He is wrong in any aspect of the case. First, the second insurance was not void, but voidable only at the option of the insurer; and second, if it were void ab initio that fact would not relieve appellant from the forfeiture resulting from a violation of the stipulations in the first policy against additional insurance.' It is thus obvious that if the opinion in that case is to be adhered to, the judgment sustaining the demurrer to the amended replies must be affirmed. Counsel for appellant refers us to several authorities holding a doctrine opposite to that announced in the opinion referred to by this court, and perhaps the weight of authority in this country may sustain him. But on the other hand the decision of this court is supported not only by the Supreme Court of the United States and several State courts, but by principle and reason. In the case of Baer v. Phœnix Ins. Co., 4 Bush, 242, where the question arose as to the proper construction to be given to a similar condition contained in a policy of fire insurance, this court said: 'The object of that condition was to assure the underwriter against over-insurance, or insurance equivalent to the entire risk, whereby the insured, relieved of all risk, might be tempted to procure the loss, or to take no care to prevent it. To make it the interest of the insured as well as the insurer to avoid loss, no prudent underwriter ever insures for the full value of the property, but leaves the owner so far interested in preventing the loss as to assure his fidelity and vigilance in proper care to avoid it.' This precaution on the part of insurance companies is not only justifiable, but indispensable to their success, if not existence. For without such provision against cumulative insur. ance, fraud and bad faith on the part of the insured would be encouraged, and the legitimate and useful purposes of fire and marine insurance to a great extent defeated. A contract of insurance, like any other which the law sanctions, should be enforced by the courts according to its terms and conditions. In this case a plain and vital stipulation, which the insurer had the right to insert in the policy, and which the assured understanding, or having the opportunity to understand, agreed to, has been deliberately violated by the latter. And he now seeks to avoid the forfeiture which results from such violation, and is now claimed by the insurer upon the ground that the two subse-effect immediately. quent policies being rendered invalid by like breach of contract and of faith on his part, the first one is now valid and enforceable by either party to it." See Emery v. Mut., etc., Ins. Co., 51 Mich. 469; S. C, 47 Am. Rep. 590; Funke v. Minnesota, etc., Ins. Ass., 29 Minn. 347; S. C., 43 Am. Rep. 216; Jersey City Ins. Co. v. Nichol, 35 N. J. Eq. 291; S. C., 40

In the Matter of Jacobs the General Term of the Supreme Court, for the first department, have held that the act of our Legislature, passed last May, prohibiting in cities of over 500,000 inhabitants the manufacture of cigars in tenement houses, is unconstitutional. The decision is unanimous, Davis, P. J., delivering the principal opinion. He says: "It may be stated as a legal and political axiom, that since the great laboring masses of our country have little or no property but their labor, and the free right to employ it to their own best interest and advantage, it must be considered that the constitutional inhibition against all invasions of property, without due process of law, was as fully intended to embrace and protect that property as any of the accumulations it may have gained. It is not constitutionally competent therefore for the Legisture to deprive by any arbitrary enactment a laborer in any lawful avocation of his right to work and enjoy the fruits of his work, in his own residence and in his own way, except for the purposes of police or health regulations, as hereinafter considered. It is equally true also that when an artisan or laborer has rented a tenement for the residence of his family, with the right to carry on his trade or occupation therein, he has thereby acquired certain rights of property in the use and enjoyment of his tenement, of which he cannot be deprived without due process of law. An arbitrary law for the mere purposes of such deprivation is absolutely dead at its birth by force of the Constitution of the State. * In this case the appellant while in the exercise of a perfectly lawful right to use and enjoy the property of his own labor by conducting a manufacture in the line of his avocation quietly and peaceably, in his 'own hired house,' suddenly finds his business declared a crime, and himself absolutely prohibited from carrying it on in his own house under severe criminal penalties, by an act of the Legislature which takes A careful study of the act has satisfied us that its aim was not 'to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases, and regulating the use of tenement houses in certain cases,' as declared in the title, but to suppress and restrain such manufacture in the cases covered by

* *

* * *

the act, for the purpose of preventing successful competition, injurious to other modes of manufacturing the same article. We think we find abundint evidence of this object on the face of the act. First, it selects for its field of operation from the general and numerous tenement houses of the city limited class, to wit: such as are 'occupied as the home or residence of more than three families livng independently of one another, and doing their cooking upon the premises.' The result of this seection is that all tenement houses having more han three, or more than twenty families living in common, or not doing their cooking on the premses, are not within the act. Certainly, if health were the object all such tenements would be emɔraced, for they are especially within the professed nischief. It is the thronged and overcrowded enements which swarm from cellar to attic with

presented

But in the form in which it comes before us it is so unjust in its inequalities, so harsh and oppressive upon the labor of poverty, so keenly discriminative in favor of the stronger classes engaged in the same occupation, that it certainly ought not to have been enacted; but being enacted ought to be held invalid, because it deprives the appellant of his right and liberty to use his occupation in his own house for the support of himself and family, and takes away the value of his labor, which is his property, protected by the Constitution equally as though it were in lands or money, without due process of law."

OLD CASES REVIVED.

THE CASE OF THE NINE MEMBERS.

enants who live not independently but in promis- MARCH 2, 1629, was a memorable day in parlia

cuous dependence without cooking in their tene-
nents, but from hand to mouth in the streets and
grog shops, or as beggars at houses for food, whose
health most needs the protection of police regula-
ions; but they are not included within the act.
Again, by the third section the first floor of the
lesignated tenement is exempt from the operation
of the law, if in addition to the manufacture there
be a store for selling cigars and tobacco on that
loor. That fact, if health were the object, should
be a reason for more stringent restriction instead of
:xception, because it would cause that floor to be
he resort of more persons whose health might be
xposed; but one nuisance to health is in the the-
>ry of the act cured by another. It is of no con-
equence that on the same floor there may be a half
lozen families each carrying on the manufacture of
igars or tobacco in their living rooms, where they
at and sleep and cook. They are not subject to
he law, while the head of a family on the next or
ny other floor of the same tenement is a criminal
or carrying on his occupation of manufacturing
igars in any room of such floor.
It is
mpossible, we think, to hold that this act is a po-
ice enactment to preserve public health, because it
learly fails to accomplish that purpose to any rea-
onable extent. It does on the contrary quite an-
ther thing. It strikes with unjust and cruel sever-
by a class of humble manufacturers, too poor to
ive elsewhere than in crowded tenement houses;
nable to have a store on their premises or to rent
shop outside of their residences in which to do
heir work, but constrained by the necessities of
heir families or themselves to use a part of their
ooms to carry on their daily occupation. They are
ingled out with keen discrimination, and their in-
ustry is made a crime, unless they submit to aban-
on it or find employment outside of their homes.
f the act were general and aimed at all tenement
ouses, and prohibited, for sanitary reasons, the
anufacture of cigars and tobacco in all such build-
ngs, or if it prohibited such manufacture in the
ving rooms of all tenants, another case would be

* * *

mentary history. On that occasion Speaker Finch, vainly endeavoring to leave the chair in pursuance to a royal command, was forcibly held therein, whilst an exasperated Commons passed resolutions against "Popery and Arminianism, Tonnage and Poundage," and Sir John Elliott, in tumultuous debate, declared that "whosoever goeth about to break parliaments, parliaments will break him!" Thus we find that the first attempt at that systematic obstruction with which the Irish party have lately been so vehemently reproached, was made by a servile speaker, and was nipped in the beginning by a resort to physical force. A similar expedient was clearly out of the question on the later occasions, it being one thing to effect a forci ble detainer on the person of an ancient lawyer, and quite another to carry out a forcible ejectment against some forty lusty Hibernians. The king however in his turn resorted to "vis major," and nine of the most prominent members of the House, to wit, the said John Elliott, and Hollis, Hobart, Hayman, Selden, Coriton, Long, Stroud and Valentine, speedily found themselves ensconced in prison. In due course they sued out their writs of habeas corpus, to which their jailor returned a his authority for their imprisonment, two warrants, one signed by twelve lords of the Privy Council, and alleging no cause, and the other under the king's sign manual. The latter specified their incarceration to be "for notable contempts by them committed against ourself and our government, and for stirring up sedition against us."

In Easter Term the first writs, those taken out by Long and Stroud, came on for argument before a full court of King's Bench, presided over by Hyde, C. J. Ask appeared for Stroud, and had little trouble in disposing of the Privy Council warrant, the want of cause therein being clearly against the petition of right. Upon the seconds, his preliminary contention was that the king himself could not imprison any man, and in support of this he cited Markham and Fortescue, "De Laudibus Legum Anglia." His pretension was that every man im

tus, a host of passages from the Bible and Bacon's Essay "of Seditions and Tumults," "which whole essay," he kindly says, "deserves the reading," and arrived at the conclusion that sedition was merely a synonym for discord. He next showed, at still greater length, that the word had no different signification in law, and herein bore hardly upon Bracton and his fellows, whom he termed obsolete authors, good for ornament but of no binding authority, and (most fatal objection of all) too prone to follow the civil law. He granted that the cause in the return was not traversable upon the present occasion, but contended and cited the reports to prove that there must at least be so much in the return as if false would give the party aggrieved an action in the case. Of Berkley's coercive power he made short work, and as to the house-on-fire illus

prisoned had a right to an action for false imprisonment, but no such action would lie against the king, who, according to the old maxim, could not be a wrong-doer, ergo the king could not imprison. Thus he ingeniously endeavored to turn the most despotic maxim of our books against the despot. From this he proceeded to his main argument, viz., that the cause assigned was too general and uncertain, and here we have anticipated the well known case of the general warrants under Geo. III. He strongly urged that so far from "sedition" being an offense known to the law, the word itself in a substantive form was not to be found in any statute or precedent, and quoted many authorities upon the vice of generality. He was followed by Mason, afterward recorder of London, who did little but reiterate Ask's able argument. For the king, Berkley, Serg't, answered success-tration "observe the true consequence of this arfully the objection that the sovereign could not im-gument-if my house be on fire my neighbor's prison, but calling to his aid the ancient writers, Bracton and Britton, he went dangerously far, and sought to establish a general coercive power, laying it down that "in matter of government, to avoid commotion, the king ought to use his coercive power against those that are enraged." "It is a case well known," he said, "that if a house be set on fire every man may pull down the next house for prevention of a greater mischief, so it seems concerning the incendiaries of state, they ought to be restrained lest others should be stirred up by them to the same combustion." Upon the generality of the return he drew a distinction between the certainty needed in a return and in an indictment, and cited the ordinary return upon certain writs, the very name of which amaze our modern ears, such as “the taking of an apostate, the amoving of a leper, the burning of an heretic, and the burning of an idiot," and finally returning to his high coercive notions he urged that the prisoners should be restrained of their liberty, that the commonwealth might not be damnified. Sergeant Davenport followed in the same strain, and upon the close of the argument the case stood over till Trinity Term.

On the first day of Trinity the writs of the other prisoners came up, and for them Littleton (who afterward became chief justice of the Common Pleas, and who, as solicitor general, argued for the crown in the Ship Money case) appeared. Admitting the king's power to commit he proceeded to state, as the main ground on which he relied, a proposition which is, now we apprehend, the fundamental principle in habeas corpus cases, viz., "that no freeman that is imprisoned only for misdemeanor before conviction may be detained in prison without bail, unless it be in some particular cases in which the contrary is ordained by any particular statute." From this he proceeded to examine whether the return disclosed any thing more than a bailable misdemeanor, and at once fell foul of that unlucky word "sedition." In a lengthy disquisition as to the true meaning of this term he quoted Livy, Taci

must be pulled down. Mr. Selden is seditious, ergo Mr. Herbert, his neighbor, must be imprisoned.” Finally to the Statute of Westminster, with its provision that a man taken by commandment of the king should not be replivisable, he replied, "as oft as that statute is cited I will always cry out the Petition of Right! The Petition of Right! As the king of France cried out, nothing but France! France! when all the several dominions of the king of Spain were objected to him." No one followed Littleton, the counsel for the other prisoners being content to rely upon his argument.

A few days after the attorney-general, Sir Robert Heath, replied for the king, but signally failed to rebut Littleton's learned and convincing discourse. After boldly claiming that the Petition of Right, being simply a confirmation of the ancient rights and liberties of the subject, did not in any way affect or help the prisoners' case he endeavored to rehabilitate the battered word "sedition." Referring, amongst his other quotations, to the town clerk of Ephesus, "who knew not how to answer for this day's sedition," he observed, in passing, "that he wished the greater ones, to-day, were as circumspect as he was," a remark, which read in the light of the king's ultimate fate, has an application somewhat different from that intended by the learned gentleman. Ultimately flying to his last resort, the pretended coercive power, he closed in this wise: "If any danger appear to you in the prisoners' bailment I am confident that ye will not bail them, but first ye will consult with the king, and he will show you where the danger rests."

The court, to their credit, did not act in accordance with Mr. Attorney's suggestion. Timid they undoubtedly were, as the sequel will show, but neither so servile nor corrupt as certain historians have since represented them. Had they then held their patents, as now, quamdiu se bene gesserint, we are inclined to think there would be little fault to find with their decisions, and till we are ourselves perfectly indifferent to considerations of place and income we ought to have a little charity for their

moral cowardice. They fixed a day for judgment, and there seems to have been little doubt what their decision would be. The king at any rate felt uneasy, and resorted to the expedient of transferring the prisoners to the Tower, sending an expla| natory letter to the judges. In this he told them that he purposed that none of the accused should come before them "until we have cause given us to believe they will make a better demonstration of their modesty and civility, both toward us and your lordships, than at their last appearance they did." Beneath this velvet sheathing the trembling justices felt the impending sword, and on the appointed day, no prisoners of course appearing,

BANKRUPTCY-DISCHARGE-ACTION BY BANK-
RUPT AFTER.

VERMONT SUPREME COURT.

LAFOUNTAIN V. SAVINGS BANK.*

Uncollected usury does not pass to the assignee in bank. ruptcy, and it may be collected by the debtor after his discharge in a suit in his own name.

A debtor, after his discharge, may sustain an action in his own name to recover money paid under a mutual mistake, the assignee having settled the bankrupt estate without attempting to enforce the claim, and the statute of limitations having run so that it would be a bar to a second suit in behalf of the creditors.

they refused to give judgment, alleging that it ASSUMPSIT in common counts. Plea, general is

would be to no purpose to do so, as the prisoners being absent could neither be bailed, delivered or remanded. Accordingly the nine members remained in durance throughout the long vacation. Toward Michaelmas the king sent for the chief justice, who attended by one of his puisne justices, the distinguished Whitlock, waited upon him, and in reply to his pressing questions informed him that the judgment of the court would be to bail the prisoners, subject to their giving security for their good behavior. Although not too well pleased, Charles put on a smiling face, telling them that "he would never be offended with his judges, so they dealt plainly with him, and did not answer him by oracles and riddles."

On the first day of term, Mason, of counsel for the members, moved for judgment, and was informed of the decision of the court. The prisoners however were now in the mind of St. Paul at Philippi, and by no means willing to secure their liberty by compromise. Mr. Selden, speaking for all, demanded to be bailed in point of right, "if it be not grantable of right we do not demand it," said he. Serg't Ashley offered his own bail for his son-in-law, Hollis, but Hollis refused to join in the bond, and Long, whose sureties for good behavior were actually in attendance, discharged them and cast in his lot with his brethren. Thus they all cheerfully returned to prison, esteeming loss of liberty a lighter thing than voluntary surrender of their rights. The victory was theirs, and although some died in prison, none were conquered.

Doubt

less they looked for speedy deliverance from Parliament, but for ten years no Parliament was summoned. Their captivity became gradually relaxed, and at length merely formal, and when at length the king was compelled to call his commons together, and the famous Long Parliament met, their turn came. That Parliament forgot no old scores, and in the midst of all its pressing labors found time to recompense the sufferers of 1629. Each survivor received £5,000, and to the deceased Sir Miles Hobart a monument was erected. The noble freedom which our race on both sides of the Atlantic enjoy to-day remains the common monument of all its builders, amongst whom are numbered our nine members.

sue, with an agreed statement of facts. Trial by court, September Term, 1880, Chittenden county, Pierpoint, C. J., presiding. Judgment for the plaintiff. The action was to recover for usury, and for money paid by a mutual mistake to the defendant. Pay. ments of the usury and by mistake were admitted. Afterward the plaintiff was adjudged a bankrupt by the United States District Court, and an assignment of all his estate was made to the assignee in conformity with the provisions of the United States Bankrupt Act.

Thereupon the assignee aforesaid undertook and proceeded with the administration of said trust; but made no claim, nor attempted to collect of the defendant any of the aforesaid overpayments of interest; and never knew of said two payments so made as aforesaid by mutual mistake; and neither party discovered the same until after the bringing of this suit. The assignee settled the estate, and after paying some forty cents on the dollar to the creditors, was discharged. The plaintiff received his discharge from the court.

William G. Shaw, for defendant.

W. L. Burnap and E. R. Hard, for plaintiff. Ross, J. The exceptions, on the facts agreed upon by the parties, present two questions for considera

tion.

1. Did the uncollected usury paid by the plaintiff to the defendant before the adjudication of bankruptcy, pass under the late general bankruptcy law to the as signee of the plaintiff? The solution of this question depends mainly upon the wording of the statute of Vermont in regard to usury, and the decisions of the court construing and interpreting that statute. The language of the bankrupt act is broad and comprehensive; and probably the language, "all his rights of action for property or estate, real or personal, and for any cause of action which he had against any person arising from contract, or from the unlawful tak. ing or detention or injury to the property of the bankrupt," is broad and comprehensive enough to include usury as it exists under most of the State laws. Many decisions, both by State and United States courts, cited by the defendant's counsel, have ad judged that usury under the statutes brought under consideration passed to the assignee, and that he alone had the right to recover it for the benefit of the estate of the bankrupt. In some of the cases the statute did not give the right to recover the usury paid to any one in terms. This is the case under the National Banking act. In other cases the statute gave the right to recover to the person paying the usury or to his legal representatives. These decisions nish but little aid in determining whether usury under our statute passes to the assignee in bankruptcy. The language of our statute confines the right

*To appear in 56 Vermont Reports,

fur