and left the remainder unlisposed of, agreed upon for the labor. S. worked un-
and that on the death of the son of Peter, der the contract for about four years. J.
the first-na ned devisee, plaintiff's right died in September, 1864, without paying
as heir at law of the testator, C., accrued. for any part of the labor. S. presented
Held, That as the will indicated an in- his claim to the administratrix, and pay-
tent on the part of the testator to dis- ment was refused. In July, 1867, the
pose of his whole estate, and as there claim having been assigned, an action
was no residuary clause, and as the law was commenced against the administra-
favors a construction which will prevent trix, and in July, 1870, judgment was
partial intestacy (53 N. Y., 351), the entered therein in favor of the plaintiffs,
clause will be construed as giving a fee. but there were no personal assets to pay
That the word children, as used, was not the same. This action was commenced
equivalent to heirs, and so the rule in in July, 1872. It was held at the trial
Shelly's case did not apply; and that, that the contract, under which the ser-
therefore, Peter, the son, took a life vices were rendered, was void by the
estate, and his children, in esse, at the Statute of Frauds, because not to be per-
death of the testator, took a vested re- formed within a year; that a right of ac-
mainder in fee, which would open to let tion existed against the decedent upon
in after born children. (4 J. R., 61.) the performance of the services on a
Judgment affirmed.
quantum meruit, and the service having
been performed in 1845, and the debtor
having died in 1864, this action, not
having been brought until 1872, was
barred.

Opinion by Church, Ch. J.

FRAUDS, STATUTE OF.

N. Y. COURT OF APPEALS.

Held, That this contract was not within the Statute; that the performance of it

Kent et al., Applts., v. Kent et al., was not necessarily, or by its terms, post

Respts.

Decided Sept. 21, 1875.

ministrators.

not taken below.

poned for more than one year from the
time it was made; that the time of pay-
ment depended upon the continuance of

Equity. Remedy. Agreement for one
year construed. Executors and ad- the life of the deceased, and that the
Evidence. Objection debt might become due at any moment
(19 N. Y., 305; 15 Wend., 336). That
this Statute does not include contracts
which may or may not be performed
within one year from the making, but
merely those which by their terms and
consistent with the rights of the parties
cannot be performed within that time
(10 Wend., 426; 3 Bur., 1278; Dresser
v. Dresser, 35 Barb., 573, explained).

This action was brought to set aside a
conveyance of real estate by J. in his
lifetime, as in fraud of creditors, and to
charge the same with a claim of which
plaintiffs were the assignees, for labor
performed by S. for J. in his lifetime
and payable at his death. The contract
out of which the claim arose was made
by parol, about 1840, and by its terms Also held, That the limitations pre-
S. K. agreed to work for J. K., and the
latter agreed to pay him for his services
during his lifetime, if he so elected; but
if not, that the pay for such labor to be
come due at J. K.'s death, in which case
he agreed to leave his property in such a
manner that S. K. should be paid for his conveyed by the debtor in his lifetime in
services out of his estate. No price was fraud of creditors.

scribed by statute as to the time for com-
mencing actions against executors and
administrators were not applicable, the
action having been brought on a claim
against the estate of the deceased debtor
to reach property alleged to have been

Also held, That the judgment against lution of the Court below, was whether the administratrix was not evidence the township or county was liable for against the present defendants of the the expense of this filling, so as to make claim (45 N. Y., 802), but the claim the bridge accessible to the public for having been established aliunde, the whose convenience it was erected. The record was evidence that an action had learned Judge below held that this liabeen brought within the time allowed by bility rested upon the township; and law, and a judgment recovered, and was conclusive evidence that the claim was not barred against the personal repre sentatives.

The only limitation available as a bar to the action was that applicable to ac tions for equitable relief against fraud, but under the ruling of the Court on the trial that the contract was invalid, evidence bearing upon that question, or of circumstances showing when the cause of action accrued and the statute commenced running, would have been incompetent, and as the point was not raised below it

cannot be raised here.

Judgment of General Term, affirming judgment at Special Term dismissing plaintiff's complaint, reversed, and new trial granted.

Opinion by Allen, J.

HIGHWAYS.

SUPREME COURT OF PENNSYLVANIA.
Penn Township v. Perry County.
Decided May 24, 1875.

this on the ground that the wing walls and earth filling were not technically part of the bridge proper, but rather part of the road leading thereto.

Held, The approach to a bridge is part of the highway, true, but so also is the bridge itself; and as the construction of this part of the highway is too expensive for the township to bear, therefore it is imposed on the county.

The design of bridging is to provide a safe and convenient passage for the public over some stream or ravine, but no such passage is afforded when the structure cannot be approached. Can a house be said to be finished till there are steps up to its doors, or stairs to its chambers? And how can a bridge be said to be completed without the proper means of access? Certainly, this is so necessary to its use that, without it, the structure is a vain thing; utterly useless and of no account. The bridge is incomplete until everything necessary for its proper use has been supplied, and every such necessary appliance is part of the bridge. When, therefore, the Act of Assembly

Bridge. Road-Act March 24, 1873, (P. directed the counties of Dauphin and

L. 369.)

Perry to build this bridge over the Juni

Error to Common Pleas of Perry ata, it meant that these two counties,

without the aid of the townships, should provide a safe and convenient passage or highway over that river, and not merely that they should set up a structure which the public could not reach.

The judgment is reversed, and judg ment is now entered, on the case stated, in favor of the Township of Penn and against the County of Perry for the costs of this case, and it is ordered that the records be remitted to the Court below for execution.

Opinion by Gordon, J.

INSURANCE-LIFE.

N. Y. COURT OF APPEALS.

and from which the jury found, that before it became due there was an exten-

Dean, Respt., v. Ætna Life Ins. Co., sion of time, and an offer of payment

Appli.

Decided Sept. 21, 1875. Proofs of loss, sufficiency of service of Evidence. Admissions. Agents' authority. Consideration to support extension of policy. Motion to dismiss. Exception to evidence.

This is an action upon two policies of life insurance. One question was as to whether proper proofs of the death of the insured had been made. The plaintiff was allowed to prove, under objection, the declaration of defendant's general agent, to the effect that the proofs had been received by the company.

within the extended time, and a refusal to receive.

Held, That the extension was not the making of an entire new contract with the necessity for the observance of the pre-requisites, such as a re-examination, but was simply a change of one of the terms in the contract yet in life, and that the policy was not forfeited.

Defendant is a foreign corporation. The agreement for extension of time was made with the agent having charge of its business in New York City, who was styled by it as its manager. He was accustomed to extend the time of payments without consultation with the home office, to give a paper to that effect, for which

Held, Error; as the declarations did not accompany, but were at a time subsequent to and not connected with he had printed blanks, approved by de

any action of the agent within the scope of his agency.

Certain testimony was claimed to be incompetent. It was not objected to on that ground when received, but defendant claimed that the point was raised by a motion to dismiss the complaint for want of evidence.

fendant. Such extensions had been adopted and approved by defendant.

Held, That the evidence was sufficient to warrant the Court in charging that the agent had in law authority to extend the time of payment, and that the defendant was bound by his acts.

The

It was claimed that the agreement to Held, That while the omission to ob-extend was without consideration. ject to the testimony did not prevent evidence showed that the insured, at the raising the question as to its competen- time of the extension, executed notes for cy, by a request to charge, or a motion part of the premium, and promised to to dismiss, it must clearly appear that pay the cash part of the premium. the request or motion is based upon the alleged incompetency of the evidence. That the motion here did not point out any such defect, but simply whether, upon all the testimony, plaintiff had made. out a case. Therefore the question of the incompetency of the testimony could not be presented on appeal.

By the terms of the policies, in case the policies were not paid when due, they closed and determined, and could be revived only upon payment of the premium, and a re-examination by a physician. The last payment was not made, but evidence was given tending to show,

Held, That these promises were a sufficient consideration for the extension, as, before the agreement, he was under no obligation to pay.

Hutchings v. Nunger, 41 N. Y., 138, distinguished.

Judgment of General Term affirming judgment in favor of plaintiff at Circuit reversed, and new trial granted.

The reversal was simply upon the ground that it was error to receive in evidence the admissions of the agent of the receipt of proofs of loss.

Opinion by Folger, J.

INTERNAL REVENUE.

UNITED STATES CIRCUIT COURT-W.

OF PENNSYLVANIA.

D.

Although the contested assessment in that case was upon corporate earnings, the principle of the decree was equally applicable to the tax upon interest, pay

The Schuylkill Navigation Company able upon corporate bonds, because the v. Eiliott.

tax upon both is imposed by the same sections of the Act of 1864, 1866 and

Decided Oct. 4, 1875. Assessment. Interest on bonded indebt- 1867 which the Court declare, are conedness.

The plaintiffs, on the 10th and 16th of September, 1870, returned to the Internal Revenue Assessor the amount of interest on its bonded indebtedness, payable on and between the 1st days of January and July, 1870, upon which a tax of 5 per cent. was assessed by the Assessor, and paid by the plaintiff's under protest, to the defendant, as collector.

The question to be determined was whether this interest was subject to taxation.

Held, McKenna, J.: Whether the 120th, 121st, 122nd and 123rd Sections of the Internal Revenue Act of June 30, 1864, did or did not expire by limitation with the year 1869, the Act of July 14, 1870, Statutes at Large, vol. 16, page 26, is decisive as to plaintiffs' liability, the Supreme Court having decided, in Stockdale, Collector, v. Atlantic Insurance Co. of New Orleans, 20 Wall., 323, that the 17th Section of that Act re-enacts Sections 122 and 123 of the Act of 1864, as modified by subsequent Statutes, and subjects to the tax imposed by them, the earnings of corporations which had accrued before its passage.

The Act of 1870 was declared by the Court in that case to be "not an attempt

tinued in force by the Act of 1870.

As the tax in this case was levied after the passage of that Act, it must be held to be legally demandable. Judgment upon special verdiet for defendant.

MARRIED WOMEN.

N. Y. MARINE COURT-GEN'L TERM.
September, 1875.

Jourdan et al. v. Bernheim.

Negos

Practice. Default. Evidence.
tiable Paper. Married women, liabili
ty of, and remedy against.

On the 21st day of August, 1875, the plaintiffs commenced an action in this Court, by the service of a summons and complaint on the defendant, and the defendant having in the meantime failed to serve an answer to the complaint, according to the requirement of the summons, judgment was, on the 9th day of September, 1875, duly entered against her, by default, for the sum of $1,339.92 gold, $23.61 currency, interest, and $17.63 costs.

The defendant thereupon obtained an order to show cause why the judgment should not be set aside for certain irregularities.

by construing a Statute differently from "what the Court had construed it, to in- Upon the hearing of the motion, the "terfere with and invade personal rights Justice at Special Term, after holding "which were beyond the constitutional that the alleged irregularities were not power of Congress. But it was a le- tenable (fol. 64), held that the affidavits "gitimate exercise of the taxing power disclosed a defense (fol. 65), upon the by which a tax which might be sup-ground assumed by the Justice, that the (6 'posed to have expired, was levied and defendant was a married woman at the "continued in existence for two years time the debt was contracted, and that "longer. It was therefore voted for that the complaint failed to show a case in "purpose, and the tax must be upheld." which her separate estate could be

66

charged under the decisions (fols. 63 to their payment until the original term of 72). The Justice thereupon granted the credit expired. This oral understanding motion, vacated the judgment, and set aside an execution issued upon it, upon condition, however, that the defendant pay $10 costs of the motion. The plaintiffs appeal from this order, under the statute peculiar to this Court allowing appeals in such cases.

constituted no defense, for it has been settled by numerous authorities that negotiable instruments cannot be altered or varied, either in their terms or legal effect, by any oral agreement made at or prior to the time of their delivery (Gridley v. Dole, 4 N. Y., 486; Payne v. Ladue, 1 Hill, 116; Ely v. Kibborn, 5 Den., 514; and see 1 Den., 400; 1 Cow. en, '249; 45 Barb., 214; 7 Bosw., 366; 27 Barb., at p. 489). Nor could the oral

Opin on. It is evident, from an examination of the papers used upon the motion at Special Term, that the defendant relied for the success of her motion upon what she regarded as irregularities understanding, under the circumstances, in the plaintiffs proceedings, rather than have any efficacy as an independent obliupon any defense which she supposed she gation. The defendant also alleges that had to the plaintiffs' claim; and, when the goods were inferior in style and the Justice below decided, as he properly did, that the irregularities alleged to exist were untenable, the motion to vacate the judgment should have been denied. The discretion residing in the Court to open a judgment by default as matter of favor is to be exercised only, in furtherance of justice, in cases where the default is excused, and where it is satisfactorily made to appear by the party in default that a valid defense exists, and that injustice will be done if the discretion be not exercised. There was nothing calling for the exercise of this discretion in the present case.

quality to those ordered by her, but she retained and used the goods, and the alleged inferiority furnished, at most, ground for an abatement of the price, and there is nothing in the affidavit showing any specific amouut that should be properly allowed in abatement; it is left entirely to conjecture, and is uncertain, evasive and unsatisfactory; in fact, the Justice at Special Term seems to have attached no weight whatever to these supposed defenses, and puts the vacating of the judgment entirely upon the technical ground that the defendant was a married woman, and that the complaint The action was brought against the had failed to allege that the drafts had defendant as acceptor of three certain any relation to her separate estate, and past-due drafts, payable to the plaintiffs' that the drafts upon their face did not in order. The defendant, in her affidavit terms charge her separate estate. The to open the default, alleged that she car- statute provides that married women ried on business in the City of New may sue and be sued, in all matters reYork, and that she purchased a quantity lating to their separate estate or of goods from the plaintiffs, upon the business done by them, as if they agreement that the time of payment were sole and unmarried (1860, therefor should not mature until certain chap. 90, sec. 7; 1862, p. 345, sec. 7), times named; and that after the terms and a general complaint in an action upof such purchase had been fully agreed on a contract of a married woman is upon, she gave the plaintiffs the three proper. The law makes her liable as a drafts sued upon, payable at an earlier feme sole, if the contract was made in day than that first agreed upon; and that her separate business or in relation to her the plaintiffs agreed that notwithstanding separate estate. If the contract sued on the different time of payment specified in is one which she is not authorized to the drafts, that they would not require make, the objection should be taken by