Gambar halaman

words of the State law; and in those cases where Con- it is rather to the advantage than the disadvantage of gress has been content to denounce the offense by its the offender to have Congress declare his offense a common-law name, as in murder and rape for example felony. Be this as it may, the clause under considera(Revised Stats., 5339, 5354), they stand as if Congress had tion may operate, in other than capital cases, to give re-enacted the common law totidem verbis. And in the defendant ten challenges in the following classes such cases, unquestionably, if the crime be a felony at of cases: 1. Where the defense is declared by statute, common law or by State statute, it is a felony under expressly or impliedly, to be a felony. 2. Where Conthe act of Congress; and if not punished capitally gress does not define an offense but simply punishes it would fall within the designation of any other felony," by its common-law name, and at common law it is a as used in this section 819, by force, not of the com- felony. 3. Where Congress adopts a State law as to mon law or State statute, but of the Federal statute. an offense, and under such law it is a felony. Murder is a felony at common law, but it may be It only remains to be determined whether the ofdoubted if rape is, it having been made so by stat- fense charged in this indictment comes within either ute. Merton, 2; 1 Hale's P. C. 226. If this latter of these categories. Making counterfeit coin was by offense were not punished capitally, and we were con- the ancient common law treason, and subsequently a fined as in some of the States to the ancient common felony, while uttering or passing it was only a misdelaw, and not that existing at the time of the revolu- meanor. Fox v. Ohio, 5 How. 410, 433; Tomlin's Dict., tion, it would become a very difficult matter to deter- tit. “Coin;" 1 Hale's P. C. 210, 224; United States v. mine how it was to be ruled under this section 819. McCarthy, 4 Cranch's C. C. 304; United States v. ShepThis is mentioned to illustrate the almost inextricable herd, 1 Hughes, 521. The act of 1790 (1 Stats. 115) deperplexity which arises from the use of this word clares counterfeiting the public securities a felony and "felony" in the present state of our law, in acts of punished it with death. The act of 1825 reduced the Cougress without some statutory definition of it. It punishment to hard labor not exceeding ten years. 4 does not follow, however, because we can find no Stats. 119. The act of 1806, the first to protect the common-law definition of this term which will give it coin, declared counterfeiting a felony punishable by and this statute operation according to that law, and imprisonment at hard labor. 2 Stats. 404. The act of are forbidden to adopt the definition found in the 1825 declared counterfeiting the coin a felony punishmodern use of it in Stato statutes, that this clause of able with imprisonment at hard labor not exceeding the section is nugatory. The authorities cited show ten years. 4 Stats. 121. The act of 1873 declared counthat Congress has the undoubted power to create fel- | terfeiting treasury notes a felony, as did the acts of onies by legislation operating within the limitations of 1847 and 1861. 9 Stats. 120; 12 id. 123; 17 id. 434. its jurisdiction over crimes, and that from time im- Counterfeiting postage stamps was declared felony by memorial Legislatures having general jurisdiction over the acts of 1851 and 1853. 9 Stats. 589; 10 id. 256. criminal offenses have added felonies to the common- Counterfeiting three cent pieces was by the act of 1865 law list. United States v. Tynen, 11 Wall. 88. Statutes made a misdemeanor. 13 Stats. 518. create felonies either by declaring offenses to be felon- The Revised Statutes drop this classification, as does ies, in express terms, or impliedly, as in the ancient the act of 1877, and these offenses are no longer destatutes, by enacting that the defendant should have clared felonies. Rev. Stats., 5414, 5457, 5464; 19 Stats. judgment of life and member where the word “fel- | 223. And this demonstrates that the legislative will ony" is omitted, or where the statute says an act no longer declares this offense a felony, and we think under particular circumstances shall be deemed to the felony feature is impliedly repealed. It is argued have been feloniously committed. 1 Arch. Cr. Pr. 1, very earnestly, however, that the effect of this is only and note; 1 Russ. on Crimes, 43, and authorities above to leave it a felony as at common law. We have alcited. Now, where the common law operates, this ready shown that under our system there is no comdeclaration, express or implied, entailed the conse- mon-law felony unless Congress merely defines a crime quences of forfeiture and if the statute fixed no pun- which is a felony at common law by its common-law ishment there was superadded by the ancient law the name. If the act said “counterfeiting" shall be punpenalty of death, and now in England transportation ished as prescribed, it would be a felony; but does and in our American States confinement in the peni- not say so; it defines the offense for itself and does not tentiary. But it is manifest that the jurisprudence of declare it a felony for the obvious reason that such a the United States, as long as section 5326 of the Re- declaration would not chauge the character of the vised Statates and other prohibitions of forfeiture of crime or the punishment, and would be wholly useless. estate and corruption of blood as a punishment for Besides, it would be absurd to punish the misdemeancrime continues to be the law, and as long as Congress ors of uttering and passing counterfeit coin with preadopts no general legislation punishing felonies as cisely the same punishment, all defined in the same such, either capitally or otherwise, the declaration section, and then say it was the intention of Congress that an offense shall be a felony in an act of Congress to give a defendant charged with making the counteris merely brutum fulmen, except so far as it inclines the feit ten challenges, and another defendant who passed legislative mind to affix a more severe penalty for the it only three, while both offenses are defined and puncommission of the offense. Notwithstanding this, ished by the same section and with the same punishhowever, it has been, until recent years, the constant ment. There is no substantial reason for such a dishabit of Congress to declare offenses created by it tinction. One crime is just as heinous as the other in either felonies or misdemeanors in express terms or to the sense of this statute, and are upon an equal footing. leave them to be misdemeanors by making no declara- | It is ruled that the defendant can have but three chaltion on the subject. There is no doubt that offenses lenges. are felonies when so declared to be, and the accused is entitled in such cases, where not punished capitally, to NOTE.-It has been stated that the commissioners ten challenges under this section 819, and this is about who prepared the Revised Statutes were so perplexed the only substantive effect such a declaration bas, un- with the word “felony" in connection with section less it be that it further gives the accused the right to 819 that they applied, by circular, for information from be proceeded agaiirst only by indictment under the the district attorneys and others as to the practice unfifth amendment to the Constitution; though it has der the acts of 1865 and 1872. been judicially declared that under our system a felony The Constitution uses the word “felony" in art. I, is not an infamous crime in the sense of that amend- sec. 6, where senators and representatives are privment. United States v. Cross, supra, and tbe other ileged from arrest in all cases except treason, felony, authorities above cited. It would seem therefore that and breach of the peace;" in art. I, sec. 8, where Congress is granted power to define and punish “piracies might issue certificates of indebtedness for rolling and felonies" committed on the high seas, and offenses stock, and that the same might be charged upon the against the law of nations; and in art. IV, seo. 2, which road as a lien paramount to subsisting liens. It was requires a person charged in any State with "treason, said, however, that the power should be exercised felony, or other crime,” who shall flee and be found in with great caution. In Stanton v. Railroad Co., ? ahother State to be delivered up. In this last section Wood, 506, it was held that the court might authorize the whole phrase has been construed to mean any of- the receiver to borrow money to complete an inconsidfense against the law of the State from which the erable portion of the road, and make the sums borfugitive flees, and manifestly the word “felony" is rowed a lien paramount to the first mortgage, it apused synonymously with the word “crime" in the pearing to be necessary for the protection of the rights same phrase. Kentucky v. Ohio, 24 How. 66. In art. of the parties in interest. See, also, Kennedy v. St. P. II, § 4, the Constitution allows officers to be im- & P. R. Co., 2 Dill. 448, where certain work was aupeached for "treason, bribery, or other high crimes thorized in making an extension which was necessary and misdemeanors." The amendments in art. V use to prevent the forfeiture of an important land grant, the phrase "capital or otherwise infamous crime," in which all parties were interested. It is said, how. and in art. XIV, sec. 2, “rebellion or other crime.” ever, in High on Receivers, $ 390, that “the receiver is These phrases all show that not much attention was seldom authorized to enlarge the operations of the paid to technical classification of offenses according to company, or extend its line of road, his functions the common law into high treason, petit treason, fel- | being usually limited to the management of the prop. onies, misprisions, misdemeanors and crimen falsi, al- erty in its existing condition." But a lien may not be though many common-law terms are used.

displaced by an order made in a proceeding to which The Revised Statutes have, by express words or im- the lien-holder is not a party. Snow v. Winslow et al. plication, declared offenses not capital to be felonies in Opinion by Adams, C.J. Seevers, J., dissented on the the following sections: 5346, 5356, 5362, 5383, 5394, 5424, ground that S. was only entitled to a lien which re5425, 5426, 5427, 5448, 5456, 2998, 3105, 3311, 3324, 3375, quired an action to establish when the receiver was 3397, and sec. 5509. The implication may be doubtful appointed. in some of these sections, but in most of them it is quite plain. Offenses are oftener declared misdemean

TRADE-MARK - RIGHT TO, INDEPENDENT OF STATors, and “misprision of treason” and “misprision of UTE — INJUNCTION,- In an action to restrain defendfelony" are mentioned respectively in sections 5333

ants from using as a trade-mark the words “Shaver and 5390.

Wagon Eldora,” it appeared that defendants, one of It is curious to note the incongruvus distribution of

whom was of the same name as plaintiff, had previously punishment throughout these statutes, as applied to

been associated with him in business, painted the created felonies in contradistinction to the misde

words in a different form on the wagons manufactured meanors and those offenses not called by any name.

by them, and painted their own initials near such If the original draughtsman happens to be an old

words. The wagons in general style and in painting common-law lawyer the statute separates the crimes

resembled those manufactured by plaintiff, and were into felonies and misdemeanors, after the old style,

not inferior thereto. Held, that there was a wrongful but if a modern inuovator, it abandons the classifica

use of plaintiff's trade-mark which equity would tion as useless.

restrain. For three hundred years the common law The whole subject is illustrative of what Amos says

has recognized the right of the proprietor of a tradein his “Ruins of Time," that “the common law of

mark to its exclusive use, and has awarded damages crimes is in reality the patchwork of every judge, in

for the deprivation of such use. Southern F. How, every reign from Coeurde Lion to Victoria." Pref. X,

Popham, 143, 144. The right has been, without inter2 Bouv. Diot., title “Criminal Law;" only it is not

ruption, recognized and protected by the courts of always the judges who do the patching. E. S. H.. England and the United States from that day to the

present, in the absence of statutes declaring the existIOWA SUPREME COURT ABSTRACT.

ence of such right, or providing regulations for its

exercise and remedies for its deprivation. Many cases JUNE 2, 1880.

involving the subject have been decided by the courts.

The jurisdiction of chancery to restrain the use of a RECEIVER — TAKES SUBJECT TO CLAIM OF LIEN- trade-mark without the consent of the proprietor was HOLDER NOT PARTY.- A receiver of a railroad was first recognized at a later day. In 1742 Lord Hardappointed in an action to which S., a lienholder, was wicke denied it (Blanchard v. Hill, 2 Atk. 484), but not a party. He was authorized by the court to com- within the last fifty years it has been repeatedly exer plete the railroad and issue certificates therefor. The cised in England and in this country. No Americertificates were foreclosed and tho road sold, the can case can be found denying it. It has been exlien-holder not being a party to this proceeding. Held, pressly held that the right to the exclusive use of s that the lien of S. was not affected. A receiver's pos- trade-mark, where statutes exist regulating and prosession is subject to all valid and existing liens upon tecting it, does not depend upon such statutes. Derthe property at the time of his appointment. What ranger v. Plate, 29 Cal. 292; Filley v. Fassett, 44 Mo. expenses a receiver may properly incur becomes a 173. In the language of Ames, C. J., in Barrons T. question sometimes of great doubt and difficulty. The Knight, 6 R. I. 434, “it never could have been a quesfundamental idea is tbat he must preserve the prop- tion that a designed imitation by the defendant of the erty, and hold the same to be disposed of under the trade-mark of the plaintiff, whereby the former fraudorders of the court. To that end he may, under the ulently passed off his goods in the market as goods direction of the court, make repairs. Blunt v. Cith- manufactured by the latter, and to his injury, would erow, 6 Ves. 799; Attorney-General v. Vigor, 11 id. support an action.” The rule is firmly settled that 563; Thornhill v. Thornhill, 14 Sim. 600. A receiver chancery will, in a proper case by injunction, protect of a railroad may operate it, and pay the expenses in- the proprietor of a trade-mark in its exclusive use. cident thereto, because this is deemed necessary for Certain principles and rules pertaining to the subject its proper presentation. Ellis v. B., H. & E. R. Co., of trade-marks are applicable to this case. A trade107 Mass. 1. That he may even go further and provide mark is a name, sign, symbol, mark, brand, or device additional accommodations, stock, etc., was held in of any kind, used to designate the goods manufactured Cowdry v. Railroad Co., 1 Wood, 331. In Wallace v. or sold, or the place of business of the manufacturer Loomis, 97 U. S. 162, it was held that the receiver or dealer in such goods. The exclusive right in a


trade-mark is acquired by its use, which the law does Wood, 20 Ohio, 26, the name of the grantor in a deed not require shall be continued for any prescribed was incorrectly given. In Parrett v. Shaubhut, 5 Minn. time. The trade-mark is often intended to indicate 323, the mistake consisted in the omission of one of the the quality of the goods, and it is unlawful to ap- subscribing witnesses, whereby the deed was made to propriate it to indicate goods of a quality equal to appear insufficiently executed. In Shepherd v. Brubthose manufactured or sold by its proprietor. Tay- halter, 13 Ga. 443, the name of the mortgagor was not lor v. Carpenter, 11 Pai. 292; Coats v. Holbrook, 2 appended to the mortgage as recorded. In Sawyer v. Sandf. Ch. 586. The use of a trade-mark, ignorantly Adams, 8 Vt. 172, the deed was recorded in an unused or innocently, with no intention to defraud or deceive book and not indexed. Terrell v. Andrew Co., 44 Mo. the proprietor or the public, will be restrained by 309, was another case of error in giving in the record chancery. Millington v. Fox, 3 My. & C. 338; Cartier v. the amount of the mortgage, and the following are Carlisle, 31 Beav. 292. In order to authorize the inter- cases in which the thing conveyed was misdescribed : ference of chancery it is not necessary that the trade- Chamberlain v. Bell, 7 Cal. 292; Miller v. Bradford, 12 mark should be copied with the fullest accuracy. Anim-Iowa, 14; Baldwin v. Marshall, 2 Humph. 116; Brydon itation which varies from the original in some respects v. Campbell, 40 Md. 331; Breed v. Conley, 14 Iowa, will be restrained. The rule is that if the imitation is 269; Gwinn v. Turner, 18 id. 1. This court has also calculated to deceive and may be taken for the original, held that a sherift's notice of attachment was ineffecits use will be restrained. Filley v. Fassett, 44 Mo. 173; tual where by mistake it failed to describe the land Boardman v. Meriden Brittania Co., 35 Conu. 402; attached. Barnard v. Campau, 29 Mich. 162. On the Falkenburg v. Lacy, 35 Cal. 52; Woodward v. Lazer, other hand, it has been held in Illinois, under a statute 21 id. 448; Sexe v. Provezende, L. R., 1 Ch. App. 192; which gave a deed effect as against subsequent bona Wotherspoon v. Currie, L. R., 5 Eng. & Ir. App. 5118; fide purchasers from the time it was filed for record, Bradley y. Norton, 33 Conn. 157; Davis v. Kendall, 2 that the grantee was not affected by errors in recordR. I. 566. See, also, 2 Hill. on Torts, 62; 2 Story's Eq. ing, he having done all that the law required of him Jur. (11th ed.), $ 951; High on Injunc., ch. 16; Addison when he had filed his deed with the recorder. Merrick on Torts (4th ed.), 874. Shaver v. Shaver. Opinion by v. Wallace, 19 Ill. 486; Polk v. Cosgrove, 4 Biss. 437; Beck, J.

Riggs v. Boylaud, 4 id. 445. So, in Alabama, under a

statute which made a conveyance“ operative as a recMICHIGAN SUPREME COURT ABSTRACT. ord” from the time it was left for registration, it was

decided that a mortgage was a valid lien for the JUNE, 23, 1880.

whole amount, though incorrectly recorded as for

a smaller sum. Mims v. Mims, 5 Ala. 23. The RECORD— MISTAKE OF REGISTER IN RECORDING following are cases which recognize the rule that DOES NOT PREJUDICE MORTGAGEE.— The statutes of filing a deed for record gives it effect as a Michigan held to provide that a mortgage is consid- cord. Dubose v. Young, 10 Ala. 365; Bank of Kenered recorded when received by the register of deeds tucy v. Hagan, 1 A. K. Marsh. 306. The different confor record. This officer is required to keep an entry book clusions in these cases are the result, in the main, of of mortgages in which are set forth the date of recep- differences in the statutes under which the records tion of the instrument,the names of the mortgagors and have been made or attempted, and perhaps if all the mortgagees, township, where lands are situated, etc. statutes had been alike, all the decisions would have Afterward the instrument is to be recorded at length been harmonious. Sinclair v. Slawson. Opinion by in a book kept for the purpose. A mortgage was re- Cooley, J. ceired and the proper entries made by the register in the entry book. In copying the same at length in the WAIVER-APPEARANCE IN JUSTICE'S COURT.-In an proper book the name of the mortgageo was omitted. action in a justice's court the court had lost jurisdicHeld, that the mortgage was recorded so as to affect a tion on account of an adjournment from time to time subsequent purchaser with notice. Under a New

in the absence of defendant. Upon an adjourned day York statute, which provided that no mortgage should the defendant's attorney answered to the case and ap"defeat or prejudice the title of any bona fide pur- plied for a postponement to a later hour the same day. chaser, unless the same shall have been duly regis- The plaintiff's attorney objected and the application tered," Chancellor Kent held that “the registry is was denied. The defendant's attorney then stated notice of the contents of it and no more, and that the

that he appeared specially to object to further proceedpurchaser is not to be charged with notice of the con- ings. Held, that the defect in jurisdiction was waived tents of the mortgage any further than they may be by the acts of defendant's attorney. If he had apcontained in the registry. The purchaser is not bound peared specially and for the purpose of assisting the to attend to the correctness of the register. It is the suit on account of previous irregularities, there would business of the mortgagee; and if a mistake occurs to have been no waiver. But if the appearance was for av his prejudice, the consequences of it lie between him other purpose, and with the view to prolong the pendand the clerk, and not between him and the bona fide ency of the action, and it contemplated a step adapted purchaser.” The statute, he adds, intended the regis- to a case regularly on foot, it was a waiver of the prior try "as the correct and sufficient source of informa- defects. Falkner v. Beers, 2 Doug. 117; Clapp v. tion; and it would be a doctrine productive) of im- Graves, 26 N. Y. 418; Briggs v. Humphrey, 1 Allen, 371; mense mischief to oblige the purchaser to look at his Rittenauer v. McCausland, 5 Black, 540; Heeron v. peril to the contents of every mortgage, and to be Beckwith, 1 Wis. 17; State v. Messmore, 14 id. 115; bound by them, when different from the contents as U. M. T. Co. v. Whittaker, 16 id. 220; Baizer v. Larch, declared by the registry. The registry might prove 28 id. 268; Abbott v. Sample, 25 Ill. 107; Swift v. Lee, only a snare to the purchaser, and no person could be 65 id. 336; Ulmer v. Hiatt, 4 Greene, 439; Clark v. safe in his purchase without hunting out and inspect- Blackwell, id. 441; Deshler v. Foster, 1 Morris, 403. ing the original mortgage, a task of great toil and

The motion for a continuance was a step in the cause, difficulty. I am satisfied that this was not the inten- and one which meant that the action should be prestion, as it certainly is not the sound policy of the stat- ently kept on foot, and there was nothing to qualify ute." Frost v. Beekman, 1 Johns. Ch. 288, 298. The it. The subsequent explanation did not abate its effect. mistake in the record in that case consisted in a misre- It was not made until the motion was denied, and cital of the amount secured. The case has been often at that time the representation of the parties had befollowed. In Sanger v. Coague, 10 Vt. 555, the error come complete, and the irregularities were waived. consisted in misdescribing the land. In Jennings v. Lane v. Leach. Opinion by Graves, J.




cussing the meaning of the terms reference was made

to a school-house in vacation as not ceasing to be occuFIRE POLICY — ACTION

pied for school purposes. Michigan Sup. Ct., April 21AGAINST ONE NEGLIGENTLY CAUSING FIRE JOINDER

1880. Stupetzki v. Transatlantic Fire Insurance Co. OF PARTIES. - The law is well established that an in

Opinion by Campbell, J. surance company which has been compelled to pay, or

TOTAL LOSS - WHAT IS. — In an action on a polhas paid, a loss covered by its policy, has, after such icy which had a provision for an appraisement of payment, a right of action against the person who wrong. damage to property not totally destroyed” there was fully caused the fire and loss to the amount such insur- a dispute as to whether there was a total or a partial ance company paid even without any formal assignment loss. Held, that a charge to this effect was not error: by the assured of his claim against the party primarily “A total loss does not mean an absolute extinction. The liable. And the courts have likewise been very firm question is whether all the parts and material composin supporting the right of the insurance company to ing the building are absolutely or physically destroyed, bring an action in the name of the assured, and will but whether, after the fire, the thing insured still exnot allow the latter to defeat such action even by a re- ists as a building. Although you may find the fact lease or discharge of the person by whose act the dam- that after the fire a large portion of the four walls was age was occasioned. Hart v. Western R. Co., 13 Metc. left standing, and some of the iron work still attached 99; Monmouth County Fire Ins. Co. v. Hutchinson, 21 thereto, still if you find that the fact is that the buildN. J. Eq. 107; Connecticut Fire Ins. Co. v. Railway ing has lost its identity and specific character as a Co., 73 N. Y. 399. These authorities distinctly affirm building, you may find that the property was totally this position on the ground that the assured, by ac- destroyed within the meaning of the policy." In Nave cepting payment of the insurer, subrogates the latter v. Home Mutual Ins. Co., 37 Mo. 430, it was held that to his rights, giving such insurer full authority to sue a policy of insurance upon a building is an insurance the party causing the loss in bis name. And where upon the building as such, and not upon the material the right to maintain an action for a loss by fire of which it is composed. See, also, Huck v. Globe Ins. through defendant's negligence is assigned to several Co. (Mass.) Ins. L. J., Dec. 1879. In Insurance Co. v. insurance companies jointly, such companies may Fogarty, 19 Wall. 644, which was an action on a policy maintain the action jointly. Wiscousin Sup. Ct., June, of marine insurance, the Supreme Court of the United 1880. Swarthout v. Chicago & North-western Railroad States held that the doctrine of an absolute extinction Co. Opinion by Cole, J.

of the thing insured is not the true doctrine, even in VACANCY OF DWELLING --TEMPORARY ABSENCE

that class of cases where the rule is stricter than in OF FAMILY NOT.- - By a condition in a fire policy on

cases like the present. In the course of the opinion, a dwelling it became void if the house should “become

in speaking of the case of Hogg v. Augusta Ins. Co., 7 vacant or unoccupied without the assent of the com

How. 595, where there was an insurance of jerked pany. The insured used the premises as his own

beef of 400 tons, part of which was thrown into the dwelling. About ten days before a fire by which it

sea, and part of the remainder so seriously damaged was destroyed he received a dispatch summoning him

that the authorities of the city of Nassau refused to

allow more than 150 tons of it to be landed, the court to the bedside of his dying daughter, in another State, and with his wife left the house alone, and did not re

say: “It will be observed that in this case, as in the turn until after the fire. A son who lived near by, un

case of Morcardier v. Chesapeake Ins. Co., 8 Cranch, der the direction of insured, visited the house daily 47, the destruction spoken of is destruction as to speduring his absence to look after the premises and stock cies, and not mere physical extinction. Indeed, philthereon. Held, that the house was not “vacant or

osophically speaking, there can be no such thing as abunoccupied, within the terms of the policy. It would

solute extinction. That of which the thing insured not convey to an ordinary mind the idea that a house

was composed must remain in its parts, though deis vacant or unoccupied when it has an inhabitant who stroyed as to its specific identity. In the case of the intends to remain in it as his residence, and who has jerked beef, for instance, it might remain as a viscid left it for a temporary purpose. If the phrases were

mass of putrid flesh, but it would no longer be either used in their strict legal sense no one would imagine

beef or jerked beef. The case of Judah v. Randall, 2 that the tenant was not such an occupant as would be

Cai. Cas. 324, where a carriage was insured and all lost liable to the responsibilities attached by law to occu

but the wheels, is another illustration of the principle. pants, or that there was such a vacancy of possession A part of the carriage — namely, the wheels, a very imas would suspend possessory rights. It would be bur

portant part - was saved; but the court held that the glary to feloniously break and enter the house, and ar

thing insured - to wit, the carriage — was lost; that it son to maliciously burn it. There may be less occasion

was a total loss. Its specific character as a carriage roas to care for a house in which no one lives, than for oue

gone." California Sup. Ct., March 29, 1880. Williams tenanted, but a person temporarily absent will usually

v. Hartford Fire Insurance Co. Opinion by Ross, J. take some pains to have his premises kept under oversight, and in the present case such provision was made

RECENT ENGLISH DECISIONS. for the domestic animals, as well as for the house itself. It would be regarded as singular doctrine to AGENCY-SALE ON CREDIT TO AGENT BELIEVED TO BE hold that families leaving their houses on excursions A PRINCIPAL.- Although a seller, who has given credit or other temporary occasions, cease to occupy them. In to an agent, believing him to be a principal, cannot Cummins v. Agricultural Ins. Co., 67 N. Y. 260, it was have recourse against the undisclosed principal, if the held that a removal by a son and his family to his principal has bona fide paid the agent at a time when father's house, in the neighborhood of his own, to re- the seller still gave credit to the agent, nevertheless if main with his mother in his father's house while she at the time of dealing in the goods the seller was inneeded their company, but with the intention of re- formed that the person who came to buy was buying turning to his own house, which was not dismantled, for a principal, but was not told who that principal was not a vacating by removal of the son's house, al- was, he may afterward have recourse to the undisthough the absence actually continued about three closed principal, who will be liable even after payment months. It was also held in Whitney v. Black River to his agent, unless he has been reasonably led to infer Ins. Co., 72 N. Y. 118, that a saw-mill, lying idle for that the debt has been paid by the agent, or that the several weeks for lack of water or logs, did not thereby seller elects to look to the agent alone for payment. cease to be occupied during the intervals, and in dis- Ou 10th March, 1879, defendants gave to C. & Co. an order to buy certain oil. On 12th March C. & Co. pur- to stop the surplus proceeds payable by the sub-purchased the oil from plaintiffs, stating that it was for a chaser, after discharging intermediate equities. E: principal in the country, but not giving his name. parte Golding, Davis & Co., re Knight & Son, 42 L. T. Part of the oil was delivered on 13th, and the remain- Rep. (N. 8.) 270; 13 Ch. Div. 6:28, followed. Ct. Appeal, der on 15th March. On the latter date defendant paid May 13, 1880. Ex parte Falk; re Keill. Opinions by C. & Co. for the oil by their acceptances. On 17th or James, Baggallay and Bramwell, L. JJ., 42 L. T. Rep. 18th March plaintiffs applied to C. & Co. for payment; (N. S.) 780. other applications were made to C. & Co. between 21st and 25th March. C. & Co. stopped payment on 27th

NEW BOOKS AND NEW EDITIONS. March, and on 28th March application was for the first time made to defendants for payment of the price of the oil. Defendants repudiated all liability, where

32D NEW JERSEY EQUITY REPORTS. upon this action was brought to recover tho amount. Reports of Cases decided in the Court of Chancery, the PreHeld, that as no such delay had intervened from the rogative Court, and on appeal in the Court of Errors and purchase of the oil as to lead defendants reasonably to

Appeals, of the State of New Jersey. John H. Stewart,

Reporter. Vol. V. Trenton, N. J., 1880. Pp. xxvi, 907. infer that plaintiffs looked no longer to their credit, or that they looked to the agent alone, plaintiffs were en- IIS titled to recover. Cases referred to: Thompson v. interest. The following cases are annotated in the Davenport, 9 B. & C. 78; Heald v. Kenworthy, 10 Ex. most thorough manner by the reporter: Cray v. Cray, 739; Armstrong v. Stokes, L. R., 7 Q. B. 598; Smyth p. 25.— A denial of a marriage de jure, because comV. Anderson, 7 C. B. 21. Ct. Appeal, June 11, 1880. plainant had another husband living when she married Irvine & Co v. Watson & Sons. Opinions by Bramwell, defendant, accompanied by an admission of a marBaggallay, and Brett, L. JJ., 42 L. T. Rep. (N. 8.) riage de facto, presents a proper case for alimony pen800.

dente lite. Smillie v. Titus, p. 51. – A mortgage FIRE INSURANCE — CONTRACT OF INDEMNITY ONLY.

executed by a prisoner, while under arrest on a charge A policy of fire insurance is a contract of indemnity of appropriating gold intrusted to him to be refined, Premises were held under lease containing a covenant the prisoner confessing the crime, is not void for to repair, under which the tenant was liable to repair duress. Central R. R. of N.J. v. West Line R. R. Co., injury by gas. An explosion of gas damaged the

p. 67.- A complainant must elect between his suit premises. The tenant recovered compensation froin pending in the State court and his suit for the same the party who caused the explosion, and repaired the

cause pending in the Federal court. Homeopathic M. premises. The landlord had received payment under

L. Ins. Co. v. Marshall, p. 103.- In the absence of a fire policy, and the insurer, on discovering that the

fraud or duress a married woman cannot contradict premises had been repaired, sued for the return of the

her acknowledgment of a deed. Williams v. Vreeland, money so paid. Held, (reversing the judgment of p. 135. - Specific performance will be decreed of an Lush J.), that the plaintiff was entitled to recover.

oral promise by A to B, in consideration of a legacy North British Ins. Co. v. London, Liverpool, etc., Ins.

from B, to pay C a part thereof. Hedges v. Norris, p. Co., 37 L. T. Rep. (N. S.) 6:29. Ct. Appeal, May 12, 1880. 192. — The statute of limitations does not bar a suit in Darrell v. Tibbetts. Opinion by Brett, Cotton, and equity for the recovery of a legacy payable only out of Thesiger, L. JJ.

the personalty. Cooper v. Bloodgood, p. 209.- A ri

parian owner granted lands, including the water front LEASE - COVENANT TO PAY TAXES AND ASSESSMENTS

between high and low-water mark, with the usual --WHAT IS AN ASSESSMENT.- Plaintiffs, as owners of covenants of title, and procured for the grantee a certain premises, were summoned by the urban sanit- wharf license, by virtue of which the grantee built a ary authority for not complying with a notice to abate wharf on the granted premises. Subsequently, without a nuisance thereon occasioned by defective sewerage, notice to the grantor, the grantee obtained from the and for that purpose to make drainago communication State a riparian lease of the premises. Held, that the with the common sewer. On the hearing of this sum

necessity for such lease was under the circumstances mons a magistrate's order was made under section 96

in equity not tantamount to an eviction. Bussom v. of the Public Health Act, 1875 (38 and 39 Vict., ch. 55), Forsythe, p. 277.- The legitimacy of a heir may be directing plaintiffs to execute the works in question, contested, notwithstanding the intestate's recognition which they accordingly did. Defendant was tenant of of his legitimacy by entries in his family bible, and in the premises under a lease, by which he covenanted to

other ways, and notwithstanding it was never ques“bear, pay, and discharge” certain specified taxes and tioned until after the death of all the ancestry, and just rates, “and all other taxes, rates, duties, and assess

as distribution was to be made. Parker v. Reynolds, p. ments taxed, charged, rated, assessed, or imposed on 290.- General creditors of a testator are not “agthe said demised premises or any part thereof, or upon grieved,” within the meaning of the Constitution, so the landlords or tenants in respect thereof." Held, by

as to have a right of appeal from an order of the orBramwell and Baggallay, L.JJ. (Brett, L. J., dissent phau's court directing the sale of lands to pay debts of ing), that under this covenant plaintiffs were entitled

the estate. Palys v. Jewett, p. 302. — A receiver, apto recover from defendant the costs of executing the pointed by an equity court, can be sued at law for a above works. Judgment of Grove, J., affirmed. Cases | tort, but only by leave of the equity court. American referred to: Tidswell v. Whitworth, L. R., 2 C. P.326; Dock, etc., Co., v. Trustees of Public Schools, p. 428.Thompson v. Lapworth, L. R., 3 C. P. 149; Crosse v.

A State cannot be sued without its own consent, or a Raw, L. R., 9 Exch. 209; Rawlins v. Briggs, L. R., 3 C.

constitutional provision or special enactment to the P. D. 368; Hartley v. Hudson, L. R., 4 C. P. D. 367 ; contrary. Johnston v. Hyde, p. 446.- One who has Sweet v. Seager, 2 C. B. (N. S.) 119; Payne v. Burridge, granted lands, reserving a right to maintain an open 12 M. & W. 727. Ct. Appeal, June 23, 1880. Budd v.

raceway over them, is not estopped, by his acquiMarshall, 42 L. T. Rep. (N. S.) 793.

escence in the substitution of a small wooden trupk, MARITIME LAW - CARRIER -- STOPPAGE

from insisting on the restoration of the raceway. SITU.- Where the master of a ship has still the char- Cook v. Cook, p. 475.- Communication of a venereal acter of carrier and retains a lien for freight upon the disease by husband to wife is “extreme cruelty," for cargo, the fact of a subsale and handing over of a de- which a divorce will be granted. Yorston v. Yorston, livery order for the cargo to the sub-purchaser, and p. 495. — Acquiescence by a wife, for seven years, in actual receipt by him of part, does not put an end to a divorce obtained by her husband, irregularly, as she the transitus so as to defeat the unpaid vendor's right | avers, the husband having married again and had two


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