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and other sanitary inconveniences than would other- Statute, which we held to be constitutional. It being wise be required. In Secor's case, Pratt, J., says: “A within the constitutional power to regulate the disinproper respect for the memory of the dead, a regard terment and removal of the dead, and to provide offor the tender sensibilities of the living, and the due ficers to scrutinize and supervise the operation in order preservation of the public health, require that the to secure a couformity to the laws, we see no reason corpses should not be disinterred or transported from why a fee cannot be charged to and collected from place to place, except under extreme circumstances of those who desire to excrcise the privilege to defray the exigency.” 18 Alb. L. J. 488; 31 Legal Int. 268. The expenses of the inspection and supervision. The fee exposure of unburied human remains, or neglect to is charged under the law, not for the transportation or inter the same by the person on whom the duty is cast, for the privilege of carrying the remaius out of the is a misdemeanor at common law. See Rex v. Stewart, country, but to pay the expenses of supervising their 12 Ad. & E. 773; Chapple v. Cooper, 13 Mees. & Wels. disinterment and due preparation for passing through 252; Ambrose v. Kerrison, 10 Com. B. 776; Jenkins v. the territory of the State, and through the streets of Tucker, 1 H. Black. 394; Willes, 536. And this is populous cities either to other parts of the State or doubtless so in part, at least, upon sanitary considera- | elsewhere, without endangering the health of the peotions generally recognized among enlightened nations.

ple. We see nothing in the language of the act, in the For similar reasons the provision in question does surrounding circumstances, or in the nature of the not violate subdivision 2 of section 10, Article I, of the subject-matter upon which the statute operates, to Constitution, which provides that “no State shall, justify us in holding that the object of the Legislature without the consent of Congress, levy any imposts or was to impose burdens on the commerce or intercourse duties on imports or exports, except what is absolutely between this country and China, rather than to pro- necessary for its inspection laws." The case also seems vide wholesome sanitary regulations for the protection to be within the terms of this exception. Besides, the of our people. The statute is general, and operates remains of deceased persons are not " exports" within wholly upon matters within the territorial jurisdiction the meaning of the term as used in the Constitution. of the State, and without discrimination as to remains The term refers ouly to those things which are propto be removed to any considerable distance, whether erty. There is no property in any just sense in the within or without the State, and is within the principle dead body of a human being. 18 Alb. L. J. 487; 17 id. of the case In re Rudolph, recently decided in the 258; Pierce v. Pro. of Swan Point Cemetery, 14 Am. United States Circuit Court for Nevada, upon drum- Rep. 667; 10 R. I. 227, and cases cited. There is no mer's licenses. 10 Cent. L. J. 224; 2 Fed. Rep. 65. impost or duty on exports in any proper sense, or in The exhumation and removal of the dead is not a matter the sense of the Constitution. This provision of the of public indifference, harmless in itself, like the style Constitution was intended to prevent discrimination of wearing the hair, as in the queue case; but it affects in matters of trade. the public health, and its regulation is like the regula- There is no violation of the Fourteenth Amendment tion of slaughter-houses and other noxious pursuits, to the National Constitution. There is no discriminastrictly within the police powers of the State. See E.c tion against or in favor of any class of residents. It parte Shrader, 33 Cal. 286; Slaughter-House cases, 16 operates upon aliens of all nationalities and upon all Wall. 36.

citizens alike. It applies to all cases of remains to be In Gibbons v. Ogden, 9 Wheat. 203, Mr. Chief Justice removed beyond the boundaries of the county, whether Marshall says: “But the inspection laws are said to be to foreign countries, to other States, or to other parts regulations of commerce, and are certainly recognized of this State. And there are no restrictions upon disin the Constitution as being passed in the exercise of a interments and removals of Chinese dead to other power remaining with the States.

* The ob- places within the same county for burial not applicable ject of inspection laws is to improve the quality of to citizens and all other aliens. It may be that the articles produced by the labor of a country; to fit large number of Chinese removals suggested the necesthem for exportation; or it may be for domestic use. sity for stringent supervision; but we see no reason to They act upon the subject before it becomes an article suppose that the act was not intended to operate upon of foreign commerce, or of commerce among the States, all within its terms; and the testimony shows -- if it is and prepare it for that purpose. They form a portion admissible to look at the testimony – that it is, in of that immense mass of legislation which embraces fact, enforced against all alike. But whether enforced everything within the territory of a State not surren- or not, the subject-matter, as we have seen, is a proper dered to a general government, all of which can be one for regulation; and if the act is not enforced upon most advantageously exercised by the States them- all alike, there is a gross neglect of duty on the part of selves. Inspection laws, quarantine laws, health laws of those appointed for tbis purpose under the law. If the every description, as well as laws for regulating the provisions of the act affect a larger number of Chinese internal commerce of a State, and those which respect than of any other class, it is not on account of any turnpike roads, ferries, etc., are component parts of discriminations made by the law, but only because unthis mass.” If then, as claimed, the transportation of der their customs there is a much larger number of the remains of deceased persons to China is a part of disinterments and removals by them than by any foreign commerce, these supervising and inspection others. In re Rudolph, supra, and cases cited. laws “act upon the subject before it becomes an arti- There is nothing in the provision in question in concle of foreign commerce," and while the remains are flict with Article IV of the Burlingame Treaty, which being “prepared for that purpose.” They simply pro- provides that “ Chinese subjects of the United States vide that the preparation of the remains for foreign shall enjoy entire liberty of conscience, and shall be transportation, while still within the State and under free from all disabilities or persecutions on account of its jurisdiction, shall be made in such a manner as not their religious faith or worship.” Conceding that the to be detrimental to the public health.

religious sentiment of the Chinese requires that they The principles relating to sanitary laws, recognized in shall remove the remains of their deceased friends to City of New York v. Miln, 11 Pet. 102; Thorpe v. R. & China for final burial, there is nothing in the provision B. R. Co., 27 Vt. 140; Passenger cases, 7 How. 283; forbidding or unduly obstructing the performance of Railroad Co. v. Huson, 95 U. S. 471, and numerous that rite or religious duty, and nothing that does not other cases, are broad enough to cover the provisions equally apply to aliens and other citizens. It is ouly in question. In these respects this case differs mater- provided that in the performance of that duty proper ially from the Queue case, reported in 5 Sawyer, 553, precautions shall be taken not to endanger the health and is more like the cases arising under the Cubic Air of the people among whom they have elected to live,

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and have died and once been buried. The fee estab- tracks in the streets of the city, is not the grant of a lished is only to liquidate the portion of the expense of franchise, but is simply a license. No estate or propsupervision and inspection imposed upon the public erty right whatever was granted to it, for the city bad resulting from their custom; and like the other ex- no power to grant ans, nor to confer upon it any penses of disinterment and removal, which the surviv- franchise. The streets are held in trust for the people, ing friends voluntarily incur, is necessarily incident to and are not corporate or municipal property. Theretheir peculiar practice. The custom of the Chinese in fore, where the city reserved the right to revoke the this respect renders the supervision necessary and

license for non-compliance with its conditions, it may proper; and we can perceive no impropriety in charg- do so by resolution without obtaining a judgment ing them with the expense incident to it. The amount declaring the forfeiture. Buffalo City Railway Co. v. of ten dollars may seem large, but it is charged alike N. Y. Cent., etc., R. Co. Opinion by James M. Smith, to all, and is not so large as to justify us in holding

J. that it was manifestly intended to obstruct the per- MORTGAGE TO A CORPORATION DE FACTO-ESTOPPEL formance of the duty; and we do not understand that BUILDING ASSOCIATION – USURY.-- Where a memthe amount is regarded as objectionable if the charge ber of a corporation de facto executed a mortgage to it is otherwise legal. Besides, it may well be questioned and afterward gave mortgages to other parties, it was whether the treaty making power would extend to the held that neither the mortgagor nor the mortgagees protection of practices under the guise of religious

could question the validity of the mortgage on the sentiment, deleterious to the public health or morals,

ground that the corporation had no legal existence; or to a subject-matter within the acknowledged police the certificate of incorporation not having been filed power of the State. See Reynolds v. United States, 98 as required by statute. The right of a corporation de U. S. 145, with respect to religious belief as affected facto to exercise the powers and privileges of that class by the First Amendment to the National Constitution. of corporations to which it belongs, cannot be inquired But under the view we take, it is unnecessary to con- into in a private action to which such corporation is a sider the question now.

party. Persons who become members of a corporaWe are satisfied that the provisions of the act in tion de facto by subscribing to or taking shares of its question do not violate any provision of the National

stock, and those who make contracts and deal with it Constitution or of the treaty with China, and that in its corporate capacity, so as necessarily to recognize there is no ground for discharging the prisoner by this its corporate existence by such contracts and dealings, court.

and who accept the benefits thereof, are thereby preLet the writ be discharged, and the prisoner re- cluded from denying the legal validity of its incorporamanded to the custody of the officer from whom he

tion. And estoppels bind not only the parties, but was taken.

their privies. When a party by his coutract, his acts Hoffman, District Judge, concurred.

or his statements, has qualified his own rights, and

another succeeds him as heir, grantee, or executor, he SUPERIOR COURT OF BUFFALO.

succeeds only to the right as thus qualified when his

title commenced. 1 Greenleaf on Ev., $ 189. ThereSPECIAL TERM ABSTRACT:

fore, as the mortgagor was estopped from showing

that the association was not a corporate body, for the CHATTEL MORTGAGE – RIGHTS OF JOINT MORT- purpose of invalidating his mortgage, his grantees or GAGEES.– One part owner of a chattel mortgage, not mortgagees are also estopped. His title being subject holding the same as partners, can make no agreement to the lien of the mortgage, any subsequent grant or with the mortgagor which will affect the rights of the incumbrance by him must necessarily be subject to other; as for example, by permitting mortgagor to the same lien. See Merch. Exch. Bauk v. Com. Wareretain possession after default in payment of an in- house, 49 N. Y. 643, note; Mason v. Lord, 40 id. 476; stallment. Gock v. Keneda, 29 Barb. 120; White v. Stewart v. Bramhall, 74 id. 85; Real Est. Trust Co. v. Osborn, 21 Wend, 72; Tyler v. Taylor, 8 Barb. 585. Seagrave, 49 How. 489. (2) A bond and mortgage And such an agreement does not even preclude the given by a member of a building association to secure mortgagee making it from taking possession of the a loan, and conditioned to pay seventy cents coutribuchattel by virtue of the clause in the mortgage that tiou and forty cents interest each and every week the mortgagee may, at any time he deems himself un- during the existence of the association, and also all safe, tako possession. Hanrahun v. Roche. Opinion dues, fines and penalties which may be imposed upon by James M. Smith, J.

the mortgagor as a member of it, pursuaut to the ConCONSIDERATION - MARRIAGE.- Where, at the time stitution, etc., is within the provision of the act of of a loan made by plaintiff to defendant, the latter

1851, ch. 122, $ 7, and is exempted from the statute of was under a legal obligation to marry plaintiff's

usury. Citizens' Mut. Loan Assoc. v. Webster, 25 daughter, the performance of that obligation can form

Barb. 263. In Melville v. Amer. Benev. Assoc. 33 no consideration of a promise by the plaintiff, made

Barb. 108, the mortgage was given previous to the act subsequent to the loan, to forgive him the debt if he

of 1851. Erie County Savings Bank v. Baldirin. fulfilled his obligation. Gerlach v. Steinke. Opinion Opinion by James M. Smith, J. (Affirmed at General by James M. Smith, J.


- VACATING ORDER OF ARREST — REFER- RAILROADS IN CITIES.-(1) Where twenty-four per- ENCE--ENTRY OF ORDER.- -(1) Section 719 of the Code, sous subscribed articles of incorporation, while the which provides that an application to vacate au order statute required twenty-five, and filed the same pur- of arrest must be finally decided within twenty days suant to the statute, and exercised the powers and after it is submitted for decision, is directory merely, franchises which would have belonged to them if duly and a decision made after that time is valid. See Peoincorporated, they become de facto a corporation, and ple ex rel. v. Dodge, 5 Ilow. Pr. 47; Burger v. Baker, 4 a defendant in an action brought by the corporation Abb). 11; Stewart v. Slater, 6 Duer, 81; O'Brien v. cannot question the validity of its incorporation. Bowes, 4 Bosw. 663; Heroy v. Kerr, 21 How. 409. And That can be done only in an action by the people, the court or judge may, even after the twenty days, brought for the purpose of testing its right to the cor- refer it to a referze to take proofs of the facts stared porate powers and franchises which it has assumed. in the affidavits, and the reference, though unexecuted (2) A resolution of the common council of a city giv- at the hearing of the motion to vacate it, will not be ing to a railroad corporation permission to lay its set aside. See Brinkley v. Brinkley, 56 N. Y. 192.








(2) This section was made for the protection of the

MAINE SUPREME JUDICIAL COURT ABparty under arrest. Plaintiff is not injured by the

STRACT.* delay, for the order of arrest remains in force. He can proceed with his action and all his remedies are HUSBAND AND WIFE --- REPLEVIN DOES NOT LIE BEperfect, no matter how long the decision of the motion

An action of replevin cannot be maintained to vacate the order of arrest is delayed, or even if it is

by a husband against his wife while the marital relanever decided. (3) Until an order is entered no mo- tion between them is in full force. Replevin is an tion can be made to vacate it. Gallt v. Finch, 24 How.

action of tort. It was decided in Abbott v. Abbott, Pr. 133; Whittaker v. Defosse, 7 Bosw. 678. The order of

67 Me. 304, that a wife after divorce could not maintain reference may be entered by either party, and either

an action for an assault committed on her during may proceed to execute it. Peet v. Cowenhoven, 14

coverture. A fortiori, au action of tort cannot be Abb. 56; Matter of Rhinebeck, etc., R. Co., 8 Hun, 34.

maintained by the one against the other during coverStafford v. Ambs. Opinion by James M. Smith, J. ture. Hobbs v. Hobbs. Opinion by Appleton, C. J. PLEADING – ALLEGATION

MARITIME LAW – BILL OF LADING AFTER SUIT BROUGHT, IRRELEVANT, ETC.- A libel- GOODS OWNERS OF VESSELS RESPONSIBLE - AUTHORITY lous publication made after suit brought is not ad- OF MASTER — NATURE OF INSTRUMENT - CONTRADICTmissible in evidence for the purpose of showing malice, ING BY PAROL. — Under a contract by a common carnor for aggravating the damages. Frazier v. McClos- rier for the carriage of goods by water, evidenced by a key, 60 N. Y. 337; Distin v. Rose, 69 id. 125. Yet in bill of lading in the usual form signed by the proper Corbin v. Knapp, 5 Hun, 197, circulation of the same agent in the ordinary course of business, the owners of libel after suit brought was allowed to be set up by the vessel are responsible only for such goods as are supplementary complaint. Therefore, an allegation of embraced in the bill of lading and delivered on board such a publication, though made before service of the the vessel, or into the actual custody of the master, or complaint, will be stricken out as immaterial and ir- such as were so delivered as and for those embraced in relevant. Storck v. Buffalo German Republican Print- the bill before the vessel sails. It is not competent by ing Asso. Opinion by Beckwith, J.

evidence aliunde to show that such a bill of lading was

intended to or did embrace goods elsewhere so as to SERVICE OF IMPERFECT COPY OF ORDER. - A defective copy of an order cannot be treated as a nullity

make the owners responsible therefor. Ordinarily the

master has no authority to bind the owners by giving if its sense and object can be ascertained from its

a receipt for goods at any other than the accustomed terms and from the affidavits served. Thus, where the

place of delivery. There can be no constructive decopy read: “It is hereby ordered that the time for the

livery of goods so as to bind the owners for their cardefendant to interpose his answer therein be and the

riage except at such place, as where by constant same is hereby for ten days from the date thereof."

practice and usage they have received property left for Osgoodby v. Seifert. Opinion by Beckwith, J.

transportation. Rowley v. Bigelow, 12 Pick. 314; The WILL — CONTRACT — UNDUE INFLUENCE

Delaware, 14 Wall. 600; The Lady Frauklin, 8 id. 3:29; - POWERS IN TRUST.-- (1) In order to invalidate a

1 Chit. on Contr. 689 n. A bill of lading is an instruwill or contract on the ground of fraud or undue in

ment of a two-fold character. It is a receipt as to the fluence, it must be shown that certain parties made

quantity and quality of the goods to be carried and a false and fraudulent statements to influence the de

contract as to their carriage. As a receipt it is open to ceased to execute the instrument, and which he relied

explanation or contradiction the same as other receipts. upon as true; or that they exercised such influence

Its acknowledgment of the apparent condition of the over him as amounted to moral coercion, which de

goods, though strong proof of its truth, is no exception stroyed his independent action and free agency; or

to the rule. An admission of that which is not true that by importunity and persuasion, which he was una

is not binding except when an estoppel. In this case ble to resist, he was constrained to do that which was

the admission is not an estoppel because there has been contrary to his free will and real purpose. Brick v.

no assignment of the bill of lading, nor has the plaintBrick, 66 N. Y. 144; Cudney v. Cudney, 68 id. 148; Chil

iff acquired any new rights or changed his position in drens' Aid Asso. v. Loveridge, 70 id. 387. The mere fact

consequence of it. O'Brien v. Gilchrist, 34 Me. 554; that the parties were very desirous that the deceased

Tarbox v. Eastern Steamboat Co., 50 id. 339; Sears v. should execute the contract as he did, and were active in

Wingate, 3 Allen, 103; Shepherd v. Naylor, 5 Gray, 591; procuring its execution, that it was highly advantageous

Blanchard v. Page, 8 id. 287; Richards v. Doe, 100 to them, and that it was an improvident one, and

Mass. 524; Hastings v. Pepper, 11 Pick. 43; Maryland its performance on the testator's part would re

Ins. Co. v. Ruden's Admr., 6 Cranch, 310; Nelson v. sult iu serious loss to the estate, is not sufficient, al

Woodruff, 1 Black. 156; Ship Howard v. Wissman, 18 though the contract was executed in his last sickness,

How. 231; The Delaware, 14 Wall. 601; 2 Whart. on and two days before his death. (2) Devise and bequest

Ev., $ 1070; 1 Greenl. on Ev., $ 305. Witzler v. Collins. to the executors in trust to pay the income thereof to

Opinion by Danforth, J. the widow during her life, and upon her decease to NEGLIGENCE — WHEN CONTRIBUTORY, QUESTION FOR pay to plaintiff a legacy upon attaining his majority, JURY.- Whether a person travelling with a safe horse and in case of his death, without issue, before that and carriage, in the night without a light, upon a hightime, to defendant; and to convey and deliver the way wholly obscured by darkness, but in the vicinity residue of the estate to defendant. Held, that the of his residence, and over which he has travelled many power of alienation was not suspended beyond two years, is in the exercise of ordinary care, is for the jury lives in being at the testator's death. That immedi- to determine under all the circumstances of the case. ately upon the death of the widow the entire residuary Stevens v. Boxford, 10 Allen, 25; Williams v. Clinton, estate would vest in defendant. Embury v. Sheldon, 28 Conn. 264; Norris v. Litchfield, 35 N. H. 271; Wood68 N. Y. 227. The trust estate would terminate with man v. Nottingham, 49 id. 387; Sleeper v. Sandown, the widow's death, and the other provisions of the will 52 id. 244; Shear. & Red. on Neg., $ 413 et seq. and notes. could be executed as powers in trust. Post v. Hover, Haskell v. Inhabitants of New Gloucester. Opinion by 33 N. Y. 593. Where certain provisions of a will can- Virgin, J. bot be fully upheld as creating valid trusts under the

PLEADING DECLARATION AGAINST EXECUTOR DE statute, yet they will be executed as powers in trust SON TORT. — The declaration against an alleged execuwhenever it can be lawfully and rightfully done. Jost 1. Jost. Opinion by James M. Smith, J.

* To appear in 70 Maine Reports.

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tor is the same in form, whether the defendant be the in an error of judgment, or an entire misapprehension rightful executor, or executor de son tort. Myrick v. of official duty under the law. Western Railroad Co. Anderson, 68 E. C. L. 719. An executor de son tort is of Minnesota v. De Graff. Opinion by Cornell, J. to be declared against as if he were the lawful execu- [Decided July 12, 1880.] tor, though the party died intestate. Brown v. Leavitt, 6 Foster, 495. The liability of such an executor is enforced against him as if he were rightful executor.

WISCONSIN SUPREME COURT ABSTRACT. Shaw v. Hallihan, 46 Vt. 389. The executor de son tort

JUNE, 1880. may be sued and treated as the rightful executor. Stockton v. Wilson, 3 Penn. 129. Such has been the

BANKRUPTCY - DISCHARGE OF ONE PARTNER DOES rule in this State. Allen v. Kimball, 15 Me. 116; White

NOT RELEASE OTHER. Plaintiff and defendant, who v. Mann, 26 id. 361; Lee v. Chase, 58 id. 432. Sawyer v. Thayer. Opinion by Appleton, C. J.

were in partnership, dissolved, defendant taking the assets and assuming the debts of the firm, among

which were notes due F. Thereafter defendant was MINNESOTA SUPREME COURT ABSTRACT.

discharged in bankruptcy through composition pro

ceedings, F. siguing the composition agreemeut and INJUNCTION - MAY BE ISSUED IN ONE EQUITABLE receiving only a portion of the amount due. ThereACTION TO RESTRAIN ANOTHER IN SAME COURT.- A after plaintiff paid the balance due F. Held, that court of equity may in one action restrain proceedings plaintiff was not, by the bankruptcy proceedings, disin another action before it. The general rule as to in- charged from liability to F., and his payment to F. junctions is thus stated in 3 Daniel's Ch. 17:25: “In- was not voluntary. Ex parte Jacobs, 44 L. J. B. 34. junctions may be obtained to stay proceedings in other In McGrath v. Gray, 43 L. J.(N. S.), C. P. 63, the quescourts of justice, whether such courts are courts of tion whether a discharge of one of two partners, by a law or equity, or spiritual courts, or courts of admir- composition in bankruptcy, discharged his copartner, alty, or courts in a foreign country." This statement was decided in the negative, after a very full discussion restricts the rule to staying proceedings in other courts. of the case, and a very elaborate opinion by Ch. J. ColeThe power in one equitable action to restrain proceed-ridge, who concludes as follows: “Consequently, an ings in another equitable action in the same court is order of discharge in all these cases releases only the affirmed in Erie R. Co. v. Ramsey, 45 N. Y. 637. That debtor in whose favor it is given, and leaves bis solvent case decides only on the power and jurisdiction to en- co-debtor liable to be sued separately by a joint credjuin, but does not determine when it is proper to itor who has been a party to the release of the insolve exercise it. The same thing was decided in Prudential ent debtor.” Tho same conclusion was arrived at by Assurance Co. v. Thomas, L. R., 3 Ch. App. 74, in the Supreme Court of New York in Mason & Hamlin which it was held that a bill of interpleader was a Organ Co. v. Bancroft, 1 Abb. N. Cas. 415. The arguproper case in which to enjoin proceedings in another ment in these cases is that the discharge had in bankequitable suit in the same court. And inasmuch as ruptcy, through a compromise, has the same and no the injunction operates only upon the parties to the greater effect as to sureties and joint contractors than action, and not upon the court in which it is pending, the discharge granted in such proceedings without we can see no difference, so far as the power to restrain compromise. The compromise proceedings are held is concerned, between an action in the same and one to be a substitute for the ordinary proceeding in bauk. in another court. In either case the power or juris- ruptcy for the accomplishment of the same object, and diction exists. Mann v. Flower. Opinion by Gilfillan, in construing the whole statute together it must be C. J.

held that Congress did not intend to give any greater [Decided April 17, 1880.]

or other effect to the discharge obtained through the MANDAMUS - WILL NOT ISSUE AGAINST EXECUTIVE

compromise proceedings than are given to the disOF STATE.- Whether under the Constitution of Min

charge given in the ordinary way; and as the statute nesota any officer of the executive department of the

provides that the ordinary discharge shall not affect Stato government can be subjected to judicial control

the creditor's right to proceed against the sureties or and interfereuce in the performance of an official duty

joint contractors for the recovery of bis debt, the disis a question which has been before this court in

charge obtained through the compromise does not imdifferent forms and at different times for considera

pair that right. Knapp v. Anderson, 15 B. Reg. 316; tion and decision, and the holding has uniformly been

Hall v. Fowler, 6 Hill, 630; Holyoke v. Adams, 10 B. against the existence of any such jurisdiction or power

Reg. 270; Towle v. Robinson, 15 N. H. 408; In re Levy, in the courts. In re Application of Seuate, 10 Mimn.

1 B. Reg. 220; Payne v. Able, 4 id. 327; In re Stevens, 5 78; Rice v. Austin, 19 id. 104; State ex rel. Treasurer of

id. 112; Done v. O'Neil, 6 Nev 155; Winslow v. Park. Mille Lacs County v. Dike, State Treasurer; State ex

hurst, 1 Root, 268; Blumenst. Bankr. 514,:515. Hill v. rel. Wright v. Jennison, Secretary of State, 20 id. 363;

Truiner. Opinion by Taylor, J. St. Paul & Ch. R. Co. v. Brown, 25 id. 517, 573, 574. The MUNICIPAL CORPORATION — NOT LIABLE FOR INreasons for the holding are fully stated in Rice v. Aus- JURY FROM DEFECTIVE APPROACH TO BRIDGE NOT tin, and Treasurer v. Dike, supra. It rests upon the OWNED BY IT IN ITS LIMITS. — A bridge was, with its constitutional principle that each of these departments approaches, owned by a corporation which took toll of government is entirely independent of the others, for its use. It was purchased by the county in which so that neither can be made amenable to any other for it was located and made a free bridge and maintained its action or judgment in discharging the duties im- by the county. One of the approaches was in the city posed upon it, wbatever their sources or nature. The of Centralia, within the municipal limits. Some slight principle applies to the performance of all official du- repairs had at one or more times been made by tho ties, whether imposed by the Constitution or by legis- street commissioner of Centralia, upon the roadway lative enactment simply, or whether they are of a and sidewalk of such approach, but it did not appear) character strictly ministerial, or such as call for the that they were authorized by the municipality. The exercise of discretion and judgment alone. It fol- public used these approaches in the same manner as a lows that every act done or attempted to be done by public street of the city. Held, that the city was not any officer of the executive department, in his official liable for an injury to one passing over the sidewalk of and not in his individual capacity, is shielded from all the approach, caused by a defect in such sidewalk. judicial interference or control, either by mandamus The county and not the city was bound to keep the or injunction, even though such act may be founded bridge in repair. The approaches being for the sole



of enabling the public to reach the bridge is cutting timber on his own land, by mistaking the
treated as part of the bridge itself, And the line of division, cuts on his neighbor's land; and yet,
the sidewalk was used as a public thorough- in both cases, the law would hold them as trespassers.”
id not render the city liable. State v. Super Cooley on Torts, 348, lays down the same doctrine.

Wood, 41 Wis. 28. The liability for injuries | Llazleton v. Week. Opinion by Cole, J.
z from the want of repairs to a bridge or other
!, under the statute, rests alone upon the mu-

y upon which the law casts the duty of making
airs, and not upon the mere fact that the high-
within the bounds of the municipality. This is

FIRE POLICY - AGENCY - AUTHORITY OF AGENT -itrine laid down in Houfe v. Town of Fulton, 34

NON-PAYMENT OF PREMIUM - WAIVER. — In a fire pol18-617. In that case the late Chief Justice Dixon | icy was a condition rendering it void if default was * It is, of course, a proposition generally correct,

made in payment of a premium note for thirty days town is not liable for damages caused by an

after due. Held, that an agent of the insurance comiency, unless the place where the injury was

pany authorized only to receive applications for insurd and the insufficiency exists, was a lawful

ance and collect and transmit premiums had no aupu. highway, which it was the duty of the town to

thority to extend the time of payment of a premium keep in a state of reasonable safety and repair.” The

note so as to avoid a forfeiture by reason of a failure cases of Johnson v. City of Milwaukee, 46 Wis. 568, and

to pay such premium note within thirty days after James v. City of Portage, 5 N. W. Rep. 31, distin- maturity. An agent employed to collect a claim does guished. Bishop v. City of Centralia. Opinion by

not thereby have authority to bind his principal even Taylor, J.

to grant an extension of time. Hutchings v. Munger,

41 N. Y. 155; Kirk v. Hiatt, 2 Cart. (Iud.) 322; Coming TRESPASS - CUTTING TIMBER

v. Strong, 1 id. 329. Where an agent is intrusted with FROM WRONG-DOER WITHOUT KNOWLEDGE LIABLE. a policy for the purpose of delivering it, and does deH. entered upon lands of plaintiff without authority | liver it, though in violation of a provision of the policy and cut logs thereon. These logs ho sold to defendant, as to prepayment, it has been held that the assured has who did not know that H. was a trespasser, but sup- a right to assume that prepayment has been waived. posed H. owned the logs, and defendant went upon Young v. Hartford Fire Ins.Co., 45 Iowa, 377; Bowman plaintiff's land and removed them. Held, that defend- V. Agricultural Ins. Co., 59 N.Y. 521; Mississippi Valley ant was liable to plaintiff in trespass for the damago Ins. Co. v. Neyland, 9 Bush, 430; Sheldon v. Connectidone by the cutting and removal of the logs. In Dex- cut Ins. Co., 25 Conn. 9. But the waiver rests, not ter v. Cole, 6 Wis. 319, an action of trespass, it ap- simply upon something said by the agent, which could peared that the defendant, a butcher in Milwaukee, be construed into an agreement of waiver, but upon was driving sheep he had purchased toward the city, something done by the agent which he was employed upon the highway, when they became mixed with a to do. The authorities all agree that a mere agreement small lot belonging to the plaintiff, running at large to waive prepayment will not put a policy in force upon the highway. The defendant drove the whole where it is not delivered. It is therefore the delivery flock into a yard near the road, for the purpose of part- of the policy which constitutes the ground of waiver. ing them, and did throw out a number which he did It is true that in Hallock v. Commercial Ins. Co., 2 not claim, and pursued his way with the remainder to Dutcher, 268, a recovery was allowed, althongh the his slaughter-house, where they were slaughtered in premium had not been paid, nor the policy delivered. his business. The evidence tended to show, and the But the agreement for the insurance had been made jury found it did show, that some four of the plaintiff's and the premium tendered, which the agent declined to sheep remained in the flock, and were driven to Mil- receive because the policy was not made out. In waukee and slaughtered. The court maintained the Trustees of Baptist Church v. Brooklyn Ins. Co., 19 action on the ground that any unlawful interference N. Y. 305, there was a parol contract for a renewal, but with, or acts of ownership over, property, to the ex- no payment of the renewal premium. It was held that clusion of the owner, was sufficient to sustain the the plaintiff was entitled to recover. That case was action, and that it was not necessary to show actual or substantially like the case at bar, except that the conforcible dispossession of property; that the intent did tract was made by the officers of the company, and not not necessarily enter into the trespass; that it was by an agent. The principle decided therefore was sufficient if the act done was without a justifiable materially different. Nor does the case at bar come cause or purpose. But, perhaps, the case nearest in within the rule held in Viele v. Germania Ins. Co., 26 point to the one at bar is Higginson v. York, 5 Mass. | Iowa, 9. That was a case where the risk was increased 341. The head note thus states the case: " A having by the act of the assured contrary to the provisions of entered the close of B, and having cut a quantity of the policy. It appeared, however, that the agent ascord-wood, sells the same to C, who hires D, the master sented to the use of the premises, by reason of which of a coasting vessel, to go in company with C and the risk was increased. Such assent was held to be a transport the wood to market. D was held liable for waiver of the forfeiture. There is nothing in this the value of the wood in an action of trespass quare doctrine that affords support to the proposition that clausum fregit, brought by B, although it was agreed an agent who has not power to make a contract of he was ignorant of the original trespass committed by insurance can bind the company by his contract to an A.” In Hobart v. Hagget, 12 Me. 67, an action of indefinite postponement of the payment of a renewal trespass for taking an ox belonging to plaintiff, it was premium, and keep the policy in force in contravenproved that defendant met plaintiff in the street, and tion of its provisions. In Bonton v. American Mut. bought of the latter an ox, which plaintiff directed Lifo Ins. Co., 25 Conn. 542, the premium was actually him to go and take out of his in re, and defendant, paid to the agent, though after the day it fell due. by mistake, took the wrong ox. The defendant was It was held that though the agent had power to make held liable. The court say: "The taking of the plaint- the contract of insurance, and had power to receive iffs ox was the deliberate and voluntary act of the tho premium when due, he had no power, without an defendant. He might not have intended to commit express authorization, to bind the company by receivtrespass in so doing. Neither does the officer, when, ing it after it was due. Substantially the same doctrine on a precept against A, he takes, by mistake, the prop- was held by implication in Insurance Co. v. Norton, erty of B, intend to commit a trespass; nor does he 96 U. S. 334. In that case a recovery was allowed where intend to become a trespasser, who, believing that he the agent had extended the time of payment of prem

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