Gambar halaman


Jan. 1878, whereby ho gave his residuary personal Cr. 56, decided two things, first, that cousin means estate, “one-third to my first cousins and two-thirds cousin german; and secondly, that first cousin onco to my second cousins." The only question raised was removed does not mean second cousin. In the other, whether “second cousins" meant second cousins Stoddart v. Nelson, 6 De G. M. & G. 68, the question strictly so called, or whether it also included children was, whether cousin did not mean first cousin once of first cousins, or as they are commonly called, first removed and second cousin, and the Lord Chancellor, cousins once removed.

in deciding in favor of tho first cousins simpliciter,

uses words which evidently refer to what, as I have JESSEL, M. R. The question I have to decide is, pointed out, occurred in Mayott v. Mayott. When you what is the meaning of " second cousins” in this will? look at the case, the most that can be said against it is, * First cousins" clearly means cousins german, both in that the Lord Chancellor does not appear to have ordinary parlance and according to the authorities. noticed that in the case before Lord Kenyon there was So, too, the term “second cousins" has a well-known

no person to answer the one description. As regards meaning, as signifying collateral descendants from a

the case of Re Blower's Trusts, L. R., 6 Ch. 351, I have common great-grandfather. No doubt as to the mean

only to remark, that it shows that modern judges are ing has been suggested, but it is said that I am bound coming to this principle - that in questions of conto alter that meaning because of certain decisions.

struction you are not to alter the well-defined legal Now, unless those decisions lay down some principle, meaning of words, unless there are circumstances in they do not bind me, and accordingly it is said that the nature of the gift, or by way of context, to show the principle they establish is this -- that a gift to

that the testator intended a different meaning, includ* second cousins” is a gift to all persons related withining in such circumstances the state of affairs at the that degree. Has it been so laid down? The first case

date of the will, is Mayott v. Mayott, 2 B. C. C. 125, which I am bound to say succeeding judges have misunderstood. That case is stated much more fully in the note in the last NEW YORK COURT OF APPEALS ABSTRACT. edition, and it there appears that the same persons, and no others, must have been living at the date of the ADMINISTRATOR will and the death of the testator, and therefore that SURROGATE MAY COMPEL ACCOUNTING AND DISTRIBUat the date of the will be had no second cousins. It TION AFTER REMOVAL. — (1) The statutes (2 R. 8. 77, was evident he was referring to some persons whom he $ 42) do not prescribe the tenor (Doug, 193; 7 Exch. knew, and consequently it was necessary to hold that 537) of the condition of the bond to be given by an he used the term " second cousing" in other than its administrator; they prescribe the substance. A bond strict sense. The decision accordingly was, that he given by an administrator to whom letters were issued meant persons within the same degree of relationship, by the surrogate of Steuben county, named the surroso that even his grandniece was included. With all gate of Ontario county as ono whose orders the prinrespect, I should not have let in the grandniece, but in cipal was to obey, but contained a clause that he should other respects I see no objection to the decision. Noth-faithfully execute the trust reposed in him as adminising is better settled than this, that where there is no trator, and another that he should obey all orders of person or property answering the description, the court any other officer or court having jurisdiction in the looks to see whether there is not some one or some- premises, touching the administration of the estate thing that may be within it. That is all that case committed to him. Held, sufficient to render the really decided. The next case is Silcox v. Bell, 1 Sim. sureties liable in case of failure of the principal to pay & S. 301. The report does not state what relations the moneys ordered to be paid by the surrogato of Steuben testator left; it is evident that the decree did not fol- county. In such bonds the substance is looked to low the words of the will, but we cannot see now why more than the form, even though it is a surety to be the direction was framed as it was. If, however, you held. Wiser v. Blachly, 1 Johus. Ch. 607. See, also, look at Mr. Sugden's argument, you will see that Ring v. Gibbs, 26 Wend. 502; Casori v. Jerome, 58 N. Mayott v. Mayott is altogether misdescribed by him, Y. 315. (2) Upon an order made upon the application and yet the Vice-Chancellor in his judgment follows of one of the next of kin, a final accounting was had, that argument. So here we have a case, in my opinion, the administrator rendered his accounts, and the surentirely wrong, where the Vice-Chancellor was clearly rogate found and decreed that there was due and paymisled by counsel - a counsel, no doubt, of great influ- able to the person next of kin named, a sum specified ence and eminence - as to the effect of Mayott v. as her distributive share of the intestate estate and Mayott. The next case of Charge v. Goodyer, 3 Russ. the administrator was ordered to pay it to her. But 140, is an illustration of the danger of following authori- it appeared that before the proceedings for accounting ties without looking at them. There the gift was to were instituted, the letters of the administrator had first and second cousins, and the report says: “It was been revoked. No one had been appointed in his admitted that the bequest to first and second cousius, place, and the moneys in question had come into his had it stood unmodified by any circumstance or ex- hands as administrator. Held, that the surrogate had pression, would have iucluded all persons of the degree power to decree a distribution of the moneys in the of second cousins; that is, first cousins once removed administrator's hands to the next of kin. This he and first cousins twice removed." The cases of Mayott would have under the provisions of Laws of 1837, chapv. Mayott and Silcox v. Bell are then referred to, and ter 460, and without this act, under 2 R. S. 92, $ 52. throughout this is spoken of as the legal construction The statutes in general terms give to the surrogate the of the gift, and in his judgment the Master of the Rolls authority to cite an administrator to an account after gives no decision as to whether that was the legal con- the lapse of eighteen months from his appointment, struction, although, with all respect, it seems to me and the section ($ 52) does not mean to confine the that that was the point before him. Those are the power so that it may not be exercised save against one cases supposed to establish the proposition that a gift who is actually in the office of an administrator. See to second cousins is a gift to all within the degree of Dakin v. Deming, 6 Pai. 95; Everts v. Everts, 62 Barb. second cousin. But there is a good deal of authority 577; Annett v. Kerr, 2 Robt. 556. The order of disthe other way. There is the case of Corporation of tribution made by the surrogate bound the adminisBridgmorth v. Collins, 15 Sim. 541, in which Shadwell, trator and the sureties upon his bond. Schofield v. V. C., held that second cousins meant second cousins Churchill, 72 N. Y. 565. Order affirmed. Gerould v. and nothing else. There are two cases decided by Lord Wilson, appellant, et al. Opinion by Folger, C. J. Chancellors. The one, Sanderson V, Bayley, 4 My.& [Decided Sept. 21, 1880.]

NEW YORK CITY — REMOVAL OF OFFICER MUST BE from the assignor to the city at the time of the assigoFOR CAUSE-SUPERVISING ENGINEER — NOT ANSWER- ment. Although the general rule is that to compel a ABLE FOR NEGLIGENCE OF SUBORDINATES — REVIEW set off of two demands, there must be a mutual right OF REMOVAL. — (1) The relator was, under the city of action upon them at tbe same time (Myers v. Davis, charter, the engineer baving supervision of public 22 N. Y. 489), yet the circumstance that one party is work done upon the streets for the city of New York. required to take some preliminary step before institutAn arch constructed while relator was in such posi- ing his action does not affect the right of set-off. Retion, upon a street in that city, fell in consequence of viewing Patterson v. Patterson, 59 N. Y. 579; Jordan bad workmanship and materials. The workmen em- v. National Bk., 74 id. 467; McDowell v. Tate, 1 Dev. ployed in building that arch were not appointed by 249; Frances v. Dudworth, 4 C. B. 202. An English relator; and inspectors were appointed by the com- court held that a debt might be set off though because missioner of public works, who directed the work, of an especial statute an action could not then be which inspectors were required to inspect, the material maintained upon it. Brown v. Tibbetts, Il C. B. (N. to be furnished and the work done under the agree- S.) 855. It is the condition or state of the demand ment, and to see that the same corresponded with the at the time that is looked at. Wells v. Stewart, 3 Barb. specifications, and to report to the commissioner him. | 40; Martin v. Kunzmuller, 87 N. Y. 396, 401; see 5 self and to the superintendent of street improvements. Edm. St. 574; note to 2 R. S. 354, $ 18, subd. 5, citing 6 In consequence of the fall of the arch the commis- Cow. 615, and 5 Johos. 105; 3 id. 150; Pomeroy on sioner, who had authority under the charter for such Remedies, $ 452, etc. An infant cannot maintain an purpose, removed the relator from his position. In action on a demand unless he first procures a guardian proceedings to review such removal, held, that relator ad litem appointed, but could set off that demand could only be removed for cause. People v. Fire Com- against a suit by the assignee of a claim held by his missioners, 72 N. Y. 445; Sims y. Fire Commissioners, debtor. Whitmarsh v. Hall, 3 Den. 375, does not con73 id. 437. The protection given by the charter to his flict with this. In the case at bar the creditor had at tenure of office this court has held to be substantial common law the same right to maintain his action and effective, and not merely shadowy or formal. The against the city as against any other debtor. By statute commissioner had a right to call on relator for an ex- this right is abridged, and such a statute is construed planation, and prima facie it was relator's duty to strictly, and as this statute does not in terms include have discovered and prevented the defect in the arch the case of set-off, that right is not taken away. Under causing its fall. The supervising engineer, if he con- an English law an attorney cannot maintain an action trols the appointment of the workmen under him, is for costs against his client until thirty days after he responsible for their skill and fidelity. But he is not has presented his bill, but this has been held not to so respousible wbere he has no power of appointment. deprive him of a right of set-off for costs in an action Kelly v. Mayor of New York, 11 N. Y. 432; Pack v. against him by his client where he had not presented Mayor of New York, 8 id. 222. In such case he is his bill. Martin v. Winder, Douglass, 199, n. x63; guilty of no negligence. The unwise and improper Bullard v. Birket, 1 Esp. Cas. 449. See Lester v. appointment is not his, and every rule of justice would Lazarus, 2 Cr. M. & Ros. 665; Downer v. Eggleston, 15 be violated by imputing to him the negligence of an Wend. 51. (2) By the statute an action against the agent whom be did not select and could uot remove. county of New York is not maintainable upon a county And here the provision made for inspecting imposed charge, a contingent expense of the county. Plaintiff's upon others the duty of supervision. While the work assignor held a claim against the county which was progressed, relator had a right to assume that the in- such a charge; the county held at the same time a claim spectors appointed by his chief were doing their duty, against the assignor that was due. Held, that the two and that they were guarding against weak construction claims were the subject of set-off. The principle that and poor material. He had a right to leave this duty a demand against a State cannot be set off by its citiwhere the commissioner bad placed it, and to assume zens against a demand of the State does not apply. that his own skill and care were to be exercised in The reason for such a principle is that a State cannot other directions. He was not, therefore, at fault for be coerced in its own courts. State v. Blank, 1 Hayes, the defect in the arch, and there was no cause for his 223; State v. Balt. & Ohio R. Co., 34 Md. 374, which removal. (2) The rule that this court will not review reason does not apply to counties. The county is exthe decision of such a commissioner on the merits empted from liability to action by the statute, an (People v. Board of Police, 69 N. Y. 409) explained : abridgment of a common-law right to be strictly con“Where there is any evidence before the officer from strued. The courts may compel a county, by manwhich au inference of incapacity or unfitness could be damus, to pass upon and allow a legal claim. People drawn, we are not to reverse the decision, because our v. Supervisors, eto., 45 N. Y. 199. And a mandamus own conclusions would perhaps have been different. proceeding is a suit within the meaning of the Federal But there must be some evidence to justify the re- Constitution. Weston v. City of Charleston, 2 Pet. moval. If there is none, the removal is not for cause, 449; Holmes v. Jennesou, 15 id. 564. Judgment affirmed. and the statute is violated.” Order reversed. People Taylor et al., appellants, v. Mayor, etc., of New York. ex rel. Campbell, appellant, v. Campbell. Opinion by Opinion by Folger, C. J. Finch, J.; Rapallo, Andrews and Earl, JJ., coucurred; (Decided Sept. 21, 1880. ] Folger, C. J., Miller and Danforth, JJ., dissented. [Decided Oct. 5, 1880.)



SEPTEMBER, 1880. TIONABLE SUBJECT OF.—(1) The statute provides that po action shall be maintained against the city of New CONFLICT OF LAW - ATTACHMENT VALID AGAINST York unless the claim on which it is brought has been PREVIOUS ASSIGNMENT FOR CREDITORS IN ANOTHER presented to the comptroller and he has neglected, for STATE. — A debtor in Rhode Island made an assignthirty days thereafter, to pay the same. One holding ment for the benefit of creditors, valid under the laws a claim for services against the city which had not of that State. The assignee came into Massachusetts been presented to the comptroller assigned the same and took possession of personal property tbere belong. to plaintiff. Held, that in an action upon the sane by ing to the debtor. Before this property was removed plaintiff, the city might set off an indebtedness due from Massachusetts it was attached by D., a creditor living there. At this time no creditor had assented to legal rate, six per cent. The court say that in Brannon the assignment, and the only consideration therefor v. Hursell, 112 Mass. 63, it was held in an action upon was the acceptance of the assignee. Afterward all

a promissory note payable in four months, “with increditors but D. proved their claims in the assigument terest at ten per cent," that interest was to be comproceedings. Held, that the assigument was invalid as puted at that rate not merely to the maturity of the against the attachment. Independently of insolvent note, but to the time of the verdict; and upon reconlaws or assignments for the benefit of creditors autbor- sideration of the authorities there referred to, and ized by statute, it has always been held by this court examination of the numerous decisions cited at the that voluntary assigoments by a debtor in this State in argument of the present case, we see no reason to trust for the payment of debts, and without other overrule or qualify the point adjudged. See Price v. adequate consideration, are invalid as against an at- Great Western Railway, 16 M. & W. 244; Morgan v. tachment, except so far as assented to by the creditors Jones, 8 Exch. 120; Keane v. Keane, 3 C. B. (N. S.) for whose bepefit they were made. Edwards v. 144; ('ook v. Fowler, L. R., 7 II. L. 27; Gordillo v. Mitchell, 1 Gray, 239; May v. Wannemacher, 111 Mass. Weguelin, 5 Ch. D. 287; In re Roberts, 14 id. 49. Be207. The assent of creditors is not presumed, but must fore the decision in Brannon v. Hursell, the rule there be shown by some affirmative act, such as presenting declared had been established in Indiana, California, claims, or becoming parties to the written assignment. Texas, Illinois, Iowa, Wisconsin and Nevada. It has Russell v. Woodward, 10 Pick. 407. Such assignments since been affirmed by decisions of the highest courts made by judicial or legislative authority in another of Ohio, Miobigan, Virginia and Tennessee. And it State are not binding here. Taylor v. Columbian Ins. has been acted on by Judge Lowell in the Circuit Court Co., 14 Allen, 353. And an assignment made by the of the United States for this district. Burgess v. debtor himself in another State, which, if made here, Southbridge Savings Bank, 2 Fed. Rep. 500. In Conwould be set aside for want of consideration, will not necticut, the law seems formerly to have been cousidbe sustained against an attachment by a Massachusetts ered as settled in accordance with these decisious; and, creditor, although valid in the place where it is made. although some recent dicta have a tendency to explain There is no comity which requires us to give force to away the grounds assigned in the earlier judgments, laws of another State which directly conflict with the there is no adjudication to the contrary. The earlier laws of our own, or to allow to the act of a debtor decisions in New York support the same rule, both as resident in another State an effect in disposing of his to mortgages and as to ordinary debts. But in the property, as against his creditors here, which it would light of later cases, the questions may perhaps be connot have if he lived in Massachusetts. Zipsey v. sidered an open one in that State. The leading cases Thompson, 1 Gray, 243; Swan v. Crafts, 124 Mass. 453; in support of the opposite view are Ludwick v. HuntFall River Iron Works v. Croade, 15 Pick. 11. The zinger, 5 W. & S. 51, and Brewster v. Wakefield, 22 subsequent assent of the Rhode Island creditors to How. 118. The same rule appears to have been folthis assignment, manifested by proving their claims lowed by the Supreme Court of the United States in under it, cannot defeat the title to this property which Brunbisel v. Firman,

22 Wall. 170. And it has since the creditor in Massachusetts acquired by his attach- been adopted as a general rule by the courts of Kansas, ment. Bradford y. Tappan, 11 Pick. 76; Ward v. Lam- Minnesota, South Carolina, Rhode Island, Kentucky, son, 6 id, 358; Pierce v. O'Brien. Opinion by Colt, J. Arkansas and Maine. But the later judgments of the CONSIGNMENT

Supreme Court exhibit a difference of opiuion as to GOODS OF CONSIGNEE AT ONE TIME-- RIGHT OF ACTION

the general rule, though not of adjudication in the BY CONSIGNOR AGAINST PURCHASER. - - A firm of deal- particular cases before the court. Cromwell v. County ers in window and plate glass, in Boston, made

of Sac, 96 U. S. 51; Holden v. Trust Co., 100 id. 72. tract with defendant to furnish glass for a building ho

Union Institution for Savings v. City of Boston. Opinwas about to erect, according to specifications fur

iou by Gray, C. J. nished, for the gross sum of $688. The contract desoribed the quality and dimensions of ths glass to be ILLINOIS SUPREME COURT ABSTRACT. furnished, and the number of lights of each quality. The firm was the selling agent for the plaintiff for

FRANCHISE - WHAT IS RIGHT OF RAILROAD COMplate glass, and the first four items of glass to be fur

PANY TO LAY TRACK THROUGH CITY — RIGHT NEED nished as specified in the contract were plate glass and

NOT BE EXCLUSIVE BUT MUST BE FROM SOVEREIGN belonged to the plaintiff, having been consigued to the

POWER. — Power in a railroad company to exercise the firm for sale. The remainder of the glass was fur

right of eminent domain in a city is a franchise, within pished by the firm. The defendant had no knowledge

the meaning of that word as used in the Constitution, that any of the glass belonged to the plaintiff. Held,

in defining what cases must be taken to the Supreme that plaintiff could not maintain an action against de

Court by appeal or writ of error. It is not essential to fendant for the plate glass belonging to him. The firm

a franchise, in its legal sense, that it should, in all cases, could not recover for any portion of the glass fur

be exclusive. This court has held that a license by a nished, but only upon the entire contract. A factor

city to use a street for a horse railway is uot a franmay sell his own goods with those of his principal, and

chise. Chicago C. R. Co. v. People, 73 Ill. 547. Cortake a note which includes the amount due for both.

porate franchises in this country emanate from the Hapgood v. Batchelder, 4 Metc. 473; Vail v. Durant, 9 sovereign power. It has decided that a right to memAllen, 408. They could therefore mingle the goods of

bership in a board of trade is not a franchise. Board plaintiff with their own and make an entire contract,

of Trade v. People, 91 III. 80. See, also, City of Bridgeand the remedy against the purchaser must be upon

port v. New York, etc., R. Co., 36 Conn. 255. A the contract itself, the character of which would pre

franchise is, in law, sometimes used to mean an excluclude the plaintiff from suing upon it. Roosevelt v.

sive right held by graut from the sovereign powerDoherty. Opinion by Endicott, J.

such in its nature that the same right cannot be granted INTEREST - WHEN AT CONTRACT RATE AFTER DUE.— to another without an invasion of the franchise of the A mortgage to secure a note set forth that it was to be first grantee. The strictly legal signification of the void if the mortgagor should pay the sum secured in word is not always couined to exclusive rights; but five years, "with interest at the rate of seven and one- the term is used in law to designate powers and privihall per cent per annum." Held, that after the five leges which are not exclusive in their nature. The years, if the note was not paid, the rate of interest Supreme Court of the United States, speaking through would be seven and one-half per cent, and not the Taney, C. J., said: “Franchises are special privileges




conferred by government upon individuals, and which

other cases." And in case a bond so filed should not do not belong to the citizens of the country, of common be approved, and a satisfactory bond should not be right.” Bank of Augusta v. Earle, 13 Pet. 595. The filed within fifteen days after such disapproval, the term, according to Blackstone, embraces in its legal person soiu default should "be deemed to have refused meaning several kinds of rights, some exclusive and said office, and the same should be filled as above prosome not exclusive. 2 Bl. Com. 21. Kid says: “A vided.” And further, the charter made it “the duty corporation is a political person capable of enjoying a of the clerk to notify all persons elected to office of variety of franchises.” Spencer, J., says: “If there their election, and unless such persous should respectare certain immunities and privileges in which the ively qualify within fifteen days thereafter the office public have an interest, as contradistinguished from should become vacant." It was held, these provisions private rights, and which cannot be exercised without in respect to the time within which the official bonds authority derived from the sovereign power, it would were required to be filed were not mandatory, but seem to me that such immunities and privileges must merely directory. The municipal authorities were embe franchises.” People v. Ætna Ins. Co., 15 Johns. powered, in their discretion, to declare a vacancy, or 387. And so the Supreme Court of New York held in to waive the default as to the mere time of filing bond, that case, unanimously, that the right of an insuranco and to accept and approve it when afterward filed. company to carry on banking business was a franchise, The mere default in that regard would not, of itself, although the judges differed on the question wbether operate to vacate the office. And in case the city the defendant in that case had lawful right to such

authorities waived a default, the bond filed would be franchise. Chicago & Western Indiana Railroad Co. v. valid against the sureties. Ross v. People, 78 IU. 375; Dunbar.

Rex v. Loxdale, 1 Burr. 447; Kane v. Footh, 70 Ill. [Decided Aug. 11, 1880.]

590; People v. Holly, 12 Wend. 480; State v. Churchill,

41 Mo. 41; State v. Porter, 7 Ind. 204; and see Kearney SURETYSHIP- OFFICIAL BOND - BOND SIGNED WITH

v. Andrews, 2 Stockt. Ch. 70; Speake v. United States, UNFILLED BLANKS — ESTOPPEL-OFFICE VACANT BY

9 Cranch, 28; State v. Toomer, 7 Rich. (Law) 216; DEFAULT IN FILING BOND — WHEN PROVISION AS TO

Sprowl v. Lawrence, 33 Ala. 674. City of Chicago v. VACANCY DIRECTORY.-(1) A party executing a bond

Gage. Opinion by Sheldon, J. knowing that there are blanks in it to be filled up by [Decided Sept. 13, 1880.] inserting particular names or things necessary to make ito perfect instrument, must be considered as agreeing that the blanks may be thus filled after he has executed

OHIO SUPREME COURT ABSTRACT. the bond. If the party signing tho paper shall insert

OCTOBER 5, 1880. in the appropriate places the amount of tho penalty, or the names of the sureties, or any other thing he may

CONSTITUTIONAL LAW – ACT REQUIRING CONSTRUCdeem of importance as affecting his interest, he may in

TION OF FISH-WAYS BY DAM OWNERS.— A legislative act that way protect himself against being bound other- requiring the owner of a dam constructed across a wise than as he shall thus specify. But if, relying upon

stream not navigable, and who has enjoyed the adverse the good faith of the principal, the surety shall permit

use of such dam for the period of twenty-one years, to bim to havo possession of a bond signed in blank, the

construct and maintain at his own expense, a chute or surety will have clothed the principal with an apparent

passage way over the same, for tish, held, unconstituauthority to fill up the blanks at his discretion, in any tional. Whether the act is valid where the adverse appropriate manner consistent with the nature of the

use is less than twenty-one years is not decided. obligation proposed to be given, so that, as against the

Woolever v. Stewart. Opinion by Boynton, J. obligee receiving the bond without notice or negli- STATUTE OF FRAUDS PROMISE TO ANSWER FOR gence, and in good faith, the surety will be estopped to DEBT OF ANOTHER. — C., who was a large stockholder allege that he executed the paper with a reservation or of a business corporation, aud president thereof, verupon a condition in respect of the filling of such blanks, bally promised M. that if ho would subscribe and pay and this, whether the blanks to be filled bavo reference $500 to tho capital stock of the company he should, to the penalty of the bond, the names of co-sureties, within one year, receive fifteen per cent on the amount or other thing. The apparent authority of tho prin- invested. M., in consideration of this promise, subcipal in an obligation which has been executed in blank scribed and paid for the stock. No dividends were by others as sureties, to fill in the blanks in an appro- made or earned within the year. Held, that this was priate manner, may be implied from the facts and cir- not a contract to answer for the debt, default or miscumstances attending the transaction, and may be carriage of another. Morehouse v. Crangle. Opinion sbown by parol; and this rule applies to instruments

by Johnson, J. under seal as well as to those which are not under seal.

STATUTE OF LIMITATIONS - SET-OFF. - The statute United States v. Nelson, 2 Brock. 64; Speake v. United States, 9 Cranch, 28; Smith v. Crooker, 5 Mass. 538;

of limitations ceases to run against a set-off from the

date of the commencement of the action in which it Butler v. United States, 21 Wall. 272; Dair v. United States, 6 id. 1; Drury v. Foster, 2 id. 24; Inbabitants

is pleaded. McEwing v. James. Opinion by Me

Ilvaine, C. J. of Berwick v. Huntress, 53 Me. 89; State v. Pepper, 31 Ind. 76; McCormick v. Bay City, 23 Mich 457; State v. Young, 23 Minn. 551; Packard v. Sears, 6 Ad. & El.

WISCONSIN SUPREME COURT ABSTRACT. 469; Welland Canal Co. v. Hathaway, 8 Wend. 480.

SEPTEMBER 21, 1880. The doctrine in People v. Organ, 27 Ill. 29, bas not been followed. Bartlett v. Board of Education, 53 MUNICIPAL CORPORATION - VILLAGE CANNOT EXIll. 364; Texira v. Evans, referred to, 1 Anstruther, 228; BRACE DISCONNECTED TRACT OF LAND. – An uninhabSmith v. Board of Supervisors, 59 Ill. 412; Comstock ited tract of country, nowhere adjoining an existing v. Gage, 91 III. 328. (2) The charter of a city provided village, and in which such existing corporation has no that all city oficers who were required to give bonds special interest, cannot be made by act of the Legislafor faithful performance of oficial duties should "file turo a part of such village, for the mere purpose of their bonds with the city clerk within fifteen days after increasing the corporate revenues by the exaction of their election," etc. The charter further provided that taxes. The court say: “The idea of a city or village when bonds should not be so filed, “the person so in implies an assemblage of inhabitants living in the default should be deemed to have refused said office, vicinity of each other and not separated by any other and the same should be filled by appointment as in intervening civil division of the State. We do not by this decision intend to set bounds to the discretion of and received from the secretary of the company his the Legislature in fixing the boundaries of a village so deposit note, there being contested claims whicb were long as tho territory of which it is composed is adja- subs quently established and on which he paid nothing, cent or contiguous, nor to intimate that the Legislature and afterward a receiver was appointed who made an may not incorporate as ono village two or more assem- assessment on the said assured for payment of said blages of inhabitants living at some distance from each losses, it was held that the matter had been adjusted other, with spaces of uninhabited lands intervening, between the company and the assured, and the rewhen such intervening spaces are also included in suchceiver could not impeach or disaffirm the lawful acts village, but that a villago cannot be incorporated con- of the corporation. Hyde v. Lynde, 4 N. Y. 387. taining two or more tracts of territory not contiguous After tho filing of a petition by a mutual insurance or adjoining, and separated by some other civil subdi- company, but before publication of the appointment vision of the State, and especially that an uninhabited of a receiver, tho maker of a premium note paid au and separate tract of country cannot be annexed to or assessment thereon and surrendered his policy under made a part of an incorporated village. If by an act an agreement with an authorized agent of tho comof the Legislature a tract of country not inhabited, pany that such payment and surrender should be in and not adjoining a village, cau be made a part of such full of said note, which was agreed to be given up, but village, then it would seem to follow that by another was not; the note was extinguished, and the receiver act of the Legislature the inhabited part of such vil- could not maintain an action thereon. Sands v. Hill, lage might be separated therefrom, and we would have 55 Ņ. Y. 18. A good faith agreement between the the anomalous thing of a village without inhabitants, parties in a contract of insurance, to annul it, is valid. and composed simply of a tract of territory, which Pennsylvania Sup. Ct., May 31, 1880. Acker, receiver, would be an absurdity.” Smith v. Sherry. Opinion v. Hite. Opinion by Trunkey, J. by Taylor, J.

MARINE INSURANCE – UNSEAWORTHY SHIP. – To REAL ESTATE - FIXTURES TREATED AS PERSONALTY render a ship “seaworthy," within the meaving of a BY ALL PARTIES, NOT — ESTOPPEL. Where a junior contract of insurance, she must be sufliciently furchattel mortgagee took possession of mortgaged fix- | nished with proper cables and anchors. 1 Kay's Shiptures and severed them from the real estate with which masters, 90. In Wilkie v. Geddes, 3 Daw. 57, a ship was they were connected, to subject them to sale to satisfy held to be unseaworthy where it appeared that the best his mortgage, held, that he could not, as against a prior bower anchor and the cable of the small bower anchor chattle mortgagee, assert that such fixtures were a part were defective. Lord Eldon, in his opinion in the of the realty. When all the parties have seen fit to House of Lords, says nothing is more clear than that treat what might otherwise be fixtures and part of the there is an implied warranty, in every contract of realty as personal property, by their agreements, and marine insurance, that the ship is seaworthy at the thus sever them from the freehold and license their commencement of the risk, or at the time of her sailremoval, the law will consider such fixtures, as between ing on the voyage insured, and is provided with suffithe parties, personal property to all intents and pur- cient ground tackle to encounter the ordinary perils of poses. Smith v. Benson, 1 Hill, 176; Ford v. Cobb, 20

The law seems to be perfectly well settled on N. Y. 344; Tift v. Horton, 53 id. 377; Hunt v. Bay this point. Merchants' Mut. Ins. Co. v. Sweet, 6 Wis. State Iron Co., 97 Mass. 279. Smith v. Waggoner. 670. Wisconsin Sup. Ct., Sept. 21, 1880. Lawton v. Opinion by Orton, J.

Royal Canadian Insurance Co. Opinion by Cole, J.

the sea.






The busi- against several defendants jointly for an aggravated ness of an insuranco company, whether conducted on

assault, the jury found the defendants guilty and the mutual or stock plan, is managed by its officers and

assessed tho punishment “at $250 fine and six months agents, and the corporators are bound by the acts of imprisonment,” no separato verdict or assessment besuch agents in all matters properly done within the ing made as to each defendant. The judgment entered scope of the powers committed to them. A policy of

was of the punishmeut assessed against each defendinsurance and the premium noto given therefor con

ant. Held, erroneous. It is well settled that when stitute a contract between the company and the in- several are joined in onu indictment a joint award of sured, and the parties usually have tho same power to

one fine against them all is erroneous, for it ought to rescind it by mutual agreement as they had to make it.

be several against each defendant, for otherwise one Such a power on the part of the company seems essen

who has paid his proportionable part might be contially necessary to the safe and proper transaction of

tinued in prison till the others havo also paid theirs, its business. Boland v. Whitman, 33 Ind. 64; Wads

which would be, in effect, to punish him for tho offenso worth v. Davis, 13 Ohio St. 123. Most mutual com

of another." 2 Hawkins' P. C. 633; Stato v. Guy, 10 panies insert stipulations in their policies that they Mo. 277. In Strangham v. State, 16 Ark. 37, it was shall become void, either ipso facto or at the option of said: "In criminal cases, though several persons conthe company, for certain acts of omission or commis cerned in the same offense may be jointly indicted and sion by the insured, and when avoided, the rights and

tried together * * * yet each one is answerable for liabilities of the member are ended, except his liability

his own criminal conduct and not for his associates, for debts already incurred. Columbia Ins. Co. v.

and the verdict and judgment against them should be Masonheimer, 26 P. F. S.; Wilson v. Trumbull Ins. several, that is, should fix the fine or punishment to be Co., 7 Harris, 372. The right of the company to can

paid or suffered by each, but the judgment for costs cel policies and thus terminate the contract, for various may be joint. Citing 4 Ark. 430; Whart. on Crim. acts of the insured, though such

right be not expressly Law, 156, 694; March v. People, 7 Barb. 393. The same reserved, has constantly been recognized, and it would

doctrino was declared in Allen v. State, 34 Tex. 230. be strange if it could not agree with the insured to

Texas Ct. of Appeals, March 26, 1880. Flynn v. State abrogate the contract when deemed expedient or ad- of Texas. Opinion by White, P. J. vantageous. In one sense the premium note is a LARCENY BY BAILEE PURCHASER UNDER CONsecurity, but it may be given up for a good considera- TRACT OF SALE OR RETURN NOT BAILEE. – The owner tion. Thus when the assured surrendered his policy of horses placed them in possession of defendant un

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