Gambar halaman

prevails in full force only when the contracts of between the parties, the burden was on the defendcorporations of this character remain wholly execu- ant to support the deeds or gifts, and that he should tory. In Parish v. Wheeler, 22 N. Y. 494, a simi- satisfy the court that they had not been obtained by lar doctrine is maintained, it being held that a rail- reason of confidence reposed, or undue influence. road company could not defend itself against a claim In Robinson v. Adams, 62 Me. 369, the subject of for money paid at its request to one who advanced spiritualism, and its effect on the validity of wills, the price of a steamboat purchased for it, on the is extensively discussed, and the conclusion reached ground that the purchase was ultra vires, though that when a will is attempted to be impeached upou the plaintiff when he paid the money knew all the the ground that it was the result, to some extent, facts; and the court says that while “contracts with of assumed spiritual communications with the decorporations, made in excess of their powers, which ceased husband of the testatrix, and of her belief are purely executory on both sides, and where no that her son-in-law possessed supernatural power wrong will be done if the parties are left in their over his wife, and was possessed of devils, the jury previous situation, will not be enforced, because must determine how far these beliefs were founded such contracts contemplate an unauthorized divis- in insane delusion, or exercised undue influence in ion of corporate funds, and, therefore, a breach of producing the will. See, also, note to this case in private trust, the executed dealings of corporations Redfield's Leading American Cases on Wills, p. 384. must be allowed to stand for and against both par- See, also, as to undue influence from other relations, ties when the plainest rules of good faith so re- Dean v. Negley, 41 Penn. St. 312; Monroe v. Barclay, quire.” See, also, Bissell v. Mich. So., etc., R. R. Co., 17 Ohio (N. S.), 302; Rudy v. Ulrich, 69 Penn. St. 22 N. Y. 258. It' is held that the defense necessa- 177. rily rests upon the violation of trust or duty toward

In Force v. City of Elizubeth, 1 Stewart (28 N. J. stockholders, and is not to be entertained when its allowance will do a greater wrong to innocent third

Eq.) 403, the alteration of the number of a municiparties, and that the contracts of corporations in ex

pal bond, payable to bearer, when different bonds cess of their rightful powers, but free from any

of the same series are distinguished alone by the

numbers, is held to render the instrument void in the other vice, are not illegal in the sense of the maxim

hands of the person who made the alteration, and er turpi contractu non oritur actio. See, also, Brad

of those who claim under him. The ground upon ley v. Bullard, 55 Ill. 413. The general rule pre

which this decision is placed is that the number was vails, even a3 to public or municipal corporations

the only mark of distinction of the bond, and a in analogous cases. Trask v. Daris, 10 Cush. 252; change in that destroyed all evidence of identity. Fuller v. Melrose, 1 Allen, 166; Allegheney v. Mc

The court cites in support of its conclusion the case Cluskan, 14 Penn. St. 81.

of Hunt v. Gray, 6 Vroom, 227, where the Supreme In Leighton v. Orr, 44 Iowa, 679, one Wolcott had

Court of New Jersey hold that even immaterial allived for years in unlawful relations with a woman

terations are fatal, because to render any rule upon who shared his home, and who claimed to be a spir- the subject efficacious it must absolutely interdict itualistic medium, and to have daily communica

the owners of written contracts from tampering tions with his deceased wife, whose memory he

with them at all. This effect is also claimed for

See Lubbering greatly revered. During this time she acquired immaterial alterations in other cases.

v. Kolbricher, 22 Mo. 598; Turner V. Bellagram, 2 great influence over him, and controlled him to a

Cal. 523. And in 1 Greenl. Ev., $ 568, it is said that large degree in the management of his business af- if the alteration be fraudulently made by the party fairs, and at the same time he was addicted to the claiming under the instrument, it does not seem imuse of alcoholic liquors to such extent that he be- portant whether it be in a material or immateria!

part, for in either case he has brought himself under came debilitated in mind and body. Previous to

the operation of the rule established for the prevenhis death he conveyed large portions of his prop- tion of fraud. But in 2 Daniel on Negotiable Inerty, for the considerations of “one dollar and struments, 373, it is said that in none of the cases friendship,” to this woman. The court held that quoted by Greenleaf, " which we have seen, did it

that the alteration was immaterial, and was these conveyances should be set aside on the ground | Kela to have vitiated the instrument by reason of that they were procured by undue influence. This

the fraudulent intent." If the change destroys the case, in one respect, resembles that of Lyon v. Home, identity of the instrument, as in the principal case, L. R., 6 Eq. Cas. 655. The defendant in that action it is material, and the rule as it is generally under

stood is the safer one. In Modge v. llerndon, 30 was somewhat celebrated as a spiritualist. The

Miss. 120, it is said that an immaterial alteration plaintiff sought him and thrust her gifts upon him;

may be treated as no alteration, and it was accordin consequence, however, of directions received, ingly held that if the act was immaterial and could as she supposed, through the defendant, from her work no injury, it was irrelevant to inquire into

See, deceased husband. There were, however, no illegal the motives with which it was committed. or immoral relations between the parties

. The however, Adams v Frye, 3 Metc. 103; Homer v.

Wallace, 11 Mass. 309; Smith v. Dunham, 8 Pick court held that, owing to the confidential relations | 246.




work of the commission) was adopted. These THE FUTURE OF THE REVISION.

Codes were the Code of Civil Procedure, of Crimi

nal Procedure, the Civil Code, the Penal Code, and THE "HIE fate of the Statutes Revision of this State, the Political Code. These Codes have been adopted which rests in the hands of this legislature, is a

in some ten or twelve of the States, and one or matter of considerable present importance. The another of them has become the statute law of existing Commission will expire by limitation on

the great majority of the States of the Union. the 1st of May next, unless it be given a new lease

Not only this but the Code of Civil Procedure was of life at this session. Of the fate of the work ac

the model upon which the revised procedure of complished there is little doubt. Not only will the

England was founded. As concise, perspicuous and Code of Civil Procedure already adopted be retained, exact statements of the law, they are excelled by no with amendments, but the nine supplemental chap codes ever prepared, and they have received unqualters will be added. If nothing else, the inconven- ified commendation from sources whence undeserved iences arising from a change is an argument strong

commendation would not come. In 1870 Mr. Thring, enough to bring about such a result. And, per parliamentary draftsman, and the allest English haps, under the circumstances, this is not to be re

authority on legislative drafting, prepared a series gretted, although it gives us the bulkiest Code of

of instructions in statute drafting for the use of the Procedure in the world. But what of the work British Parliament, wherein lie used the following undone or incompleted – the substantive law,

language : “The draftsman should read carefully civil and penal, and the criminal procedure ? | Mr. Coode's book on legislatire expression, above reIs the Commission to go on or is it to go out ? ferred to, and should study, for forms of expression, Are we to have, once for all, what we have

the Code of Criminal Procedure and Civil Procedbefore attempted, a thorough and complete re- ure of the State of New York.” (See 2 Alb. L. J. p. vision and codification of laws,

107.) Now it seems to us that we ought not longer to these 3,318 sections of procedure to be the only ignore this body of law already prepared to our hand. outcome of all the treasure and years of labor It was hoped, when the existing Commission was apexpended ? For our own part, we are most decidedly

pointed, that the Commissioners would find these of the opinion that the revision ought to be con

codes useful as the basis, at least, of their revision, tinued, and the whole law and procedure reduced

and to that end the legislature expressly authorized to a congruous, concise and perspicuous code. It is the Commissioners to incorporate them into and too late in this State—where the movement in favor make them a part of their revision. This they have of codification had its origin-to question the utility not done. It is most certainly advisable in every or desirability of a code. In the language of the view to continue the commission and the revision. Code commissioners of 1857, “If the law is We have gone too far, wisely to retreat, were rea thing to be obeyed, it is a thing to be known, treat desirable. But at the same time let the comand if it is to be known, there can be no better, not mission be continued expressly for the purpose of to say no other, method of making it known than of taking these unadopted codes as the basis and subwriting and publishing it. If a written constitu- stance of their work. Let them be required to retion is desirable, so are written laws. The same

form or revise those codes so far as they may need reasons which affect the one affect also the other.” change in the light of our juridical history since The statute law of this State is contained in some they were reported, but let the “ amending hand” eighty odd volumes, and covers about 75,000 pages; be so hedged in that there shall be no more change, the case law in upwards of 450 volumes of reports. for change sake only. By so doing we shall gain This law, both statute and case, every man is pre- in time, in money, and, what is of much greater imsumed to know-is bound to know. The purpose of portance, in our jurisprudence. a revision or a code is to " boil down" this incongruous, incomprehensible mass into a congruous,

UNITED STATES SUPREME COURT ABSTRACT. comprehensible and concise system. The necessity of reducing “ into a written and

OCTOBER TERM, 1877. systematic Code the whole body of law of this State" was distinctly recognized and provided for in the

Meaning of word fraud" in $ 33, Bankrupt lau.Constitution of 1846, and in pursuance of its provis- The word "fraud,"as used in the 33d section of the bankions two commissions were appointed—the Prac- rupt law of 1867, means positive fraud, or fraud in fact, tice Commission, consisting of David Dudley Field, involving moral terpitude or intentional wrong, as Arphaxed Loomis, and David Graham, and the Code dues embezzlement, and vot implied fraud, or fraud in Commission, consisting of Mr. Field, William law, which may exist without the imputation of bad Curtis Noyes and Alexander W. Bradford. These purchased notes belonging to an estate, from an execu

faith or immorality. Accordingly, where a person Commissions prepared and reported fire Codes-only tor, at a discount, under such circumstances that renone of which (and that the incomplete and partial 'dered him guilty of a constructive fraud by being im




the affidavit of the printer, or his foreman, or his

plicated in a devastarit committed by the executor, one years, been in notorious and adverse possession, in selling the notes, held, that the fraud was not such paying the taxes and exercising all the usual rights of as would preclude him from setting up a discharge in ownership, and his title has, for the whole period, bakruptoy against an action to recover the value of been on record in the proper office. Stemfler v. Robsuch notes. Judgment of Supreme Court of Appeals erts, 6 Harris, 283; Fox v. Lyon, 9 Casey, 481; Brock v. of Virginia reversed. Neul, plaintiff in error, v. Savage, ? id. 421; Hulsey v. Tate, 2 P. F. Smith, 311; Scruggs. Opinion by Harlan, J.

Lingenfeller v. Richey, 12 id. 123. Judgment of CirJURISDICTIOX.

cuit Court, W. D. Pennsylvania, affirmed. King, Foreclosure of mortgage: parties: citizens of different plaintiff in error, v. Pardee. Opinion by Bradley, J. States.--In an action brought by certain bondholders in the United States Circuit Court to foreclose a mort

1. Proof of service of summons : service by publicagage given to a trustee upon property belonging to a

tion on a non-resident: statute of Oregon.-A statute corporation, for the benefit of the bondholders, it ap

of Oregon, after providing for service of summons in peared that the trustee had refused to bring action,

an action upon parties or their representatives personiand that the bondholders were residents of a State

ally or at their residence, declares that when service other than that in which the corporatiou was situated.

cannot be thus made and the defendant, after due dilHeld, that the complainants had a right to have suit

ligeuce, cannot be found within the State, and “that for a foreclosure in the name of the trustee, and hav

fact appears, by affidavit, to the satisfaction of the ing applied to him for that purpose and he having re

court or judge thereof, and il, in like manner, appears fused to perform his duty, the complainants, with the

that a cause of action exists against the defendant, or other parties interested in the security, might properly become the actors in such a suit against the mort

that he is a proper party to an action relating to real

property in the State, such court or judge may grant gagor, impleading the trustee also as a respondent.

an order that the service be made by publication of Held, also, that the United States Circuit Court had

when the defendant is not a resident jurisdiction of the action as being between citizens of

of the State, but has property therein and the court different States. Judgment of Circuit Court, Ne

has jurisdiction of the subject of the action "- the braska, affirmed. Omaha Hotel Company, appellant,

order to designate a newspaper of the county where 5. Wade. Opinion by Clifford, J.

the action is commenced in which the publication shall 2. Joinder of parties.—Some of the other bondhold

be made--and that proof of such publication shall be ers were not joined as parties to the suit. Helil, not to affect the jurisdiction of the court. Holders of

principal clerk:'' Held, that defects in the affidavit such securities otherwise entitled to sue in the Circuit

for the order can only be taken advantage of on apCourt to foreclose the mortgage or trust deed are not

peal or by some other direct proceeding, and cannot compelled to join as respondents other holders of

be urged to impeach the judgment collaterally ; and similar securities, if resident in other States, even if

that the provision as to proof of the publication is they refuse to uvite as complainants, as the effect

satisfied when the affidavit is made by the editor of would be to oust the jurisdiction of the court. Ib.

the paper. Judgment of Circuit Court of Oregon al3. When security not void on ground that lender is a

firmed. Pennoyer, plaintiff in error, v. Neff. Opinion trustee of borrower.-It was claimed that the bonds

by Field, J. and mortgage were void upon the ground that the

2. Effect of personal judgment on non-resident: lenders of the money were also the directors of the

when no lille passed upon sale under -A personal judg. company. The terms of the contract were sanctioned

ment rendered in a State court in an action upon a by the stockholders, and the money loaned was

money demand against a von-resident of the State, Jieeded to complete the building, and it was ap

without personal service of process upon him within plied to effect the purpose for which it was borrowed.

the State, or his appearance in the action, upon service Veld, that the claim could not be sustained. (Stark

by publication, is without any ralidity; and no title to v. Coffin, 105 Mass. 333; Credit Associution v. Coleman,

property passes by a sale under an execution issued Law. Rep., 5 Ch. 568; Troup's Case, 29 Beav. 353;

upon such a judgment. Ib. floare's Case, 30 id. 225; Smith v. Lansing, 22 N. Y.

3. When Stute tribunals may and may not a ljudicute 5:26; Busby v. Finn, 1 Ohio St. 422.) Ib.

claims against non-residents.- The State having with4. Usury: what does not constitute. Most of the

in its territory property of non-residents may hold directors who took the bonds and advanced the money

and appropriate it to satisfy the claims of its citizens were owners of stock iu the bank where the money

against them, and its tribunals may inquire into their when paid to the use of the company was deposited. obligations to the extent necessary to control the disInterest was not paid on the deposits, and it was in

position of the property. If non-residents have no sisted by the company that the transactiou was usuri

property in the State, there is nothing upon which the ous. Held, that in the absence of any evidence that

tribunals can adjudicate. Ib. any agreement was ever made that the money should

4. Substituted service, when sufficient: when not sufbe deposited in that baik, the proposition could not ficient.-- Substituted service by publication, or in any be sustained. Ib.

other authorized form, is sufficient to inform parties of LIMITATION OF ACTION.

the object of proceedings taken, where property is Aclion to enforce resulting trust.-It is an undoubted ouce brought under the control of the court by seizure rule of law in Pennsylvania that a resulting trust in or some equivalent act. The law assumes that propland, if not sought to be enforced for a period of twen- erty is always in the possession of its owner, in person ty-one years, and is not reaffirmed, or continued, will, or by agent, and proceeds upon the theory that its under ordinary circumstances, be extinguished. This seizure will inform him that it is taken into the cusrule is especially applicable where the party having the tody of the court, and that he must look to any prolegal title has, during the required period of twenty- ceedings authorized by law upon such seizure for its covdemnation and sale. But where the entire object , ownership, by title derived under the laws of the of the action is to determine the personal rights and United States, of certain valuable mines that could obligations of the defendants, that is, where the suit only be worked by the hydraulic process, which necesis merely in personam, constructive service in this sarily requires the use of the channels of the river and form upon a nou-resident is ineffectual for any pur- its tributarios in the manner complained of, and they pose. Ib.

alleged that they claimed the right to this use under 5. Process of Stale tribunals not valid out of State: the provisions of certain specified acts of Congress publication.-Process from the tribunals of one State and also alleged that the action arose under, and cannot run into another State and summon parties

that its determination would necessarily involve and there domiciled to leave its territory and respond to

require the construction of the laws of the United proceedings against them; and publication of process

States specifically enumerated, as well as the pre-empor notice within the State in which the tribunal sits

tion laws, but stated no facts to show the right cannot create any greater obligation upon the non

they claim or to enable the court to see whether it resident to appear. Process sent to him out of the necessarily depended upon the construction of the State and process published within it are equally un

statutes. Held, not sufficient to entitle defendants to availing in proceedings to establish his personal liabil

a removal of the cause. Judgment of Circuit Court, ity. Ib.

California, affirmed. Litlle York Gold Washing and 6. When substituted service not effectual: property

Water Company et al., plaintiffs in error, v. Keyes. in Stale essential.- Except in cases affecting the per

Opinion by Waite, C. J. Bradley, J., dissented. sonal status of the plaintiff, and cases in which that

SPECIFIC PERFORMANCE. mode of service may be considered to have been as

Defense in action for: title: parties plaintiff.-W., by sented to in advance, the substituted service of process

will made in 1852, devised certain real estate to H. by publication, allowed by the law of Oregon, and by

for life, then to B., in trust, to apply the income to the similar laws in other States, where actions are brought

use of his brother during life, and thereafter to H., Jr. against non-residents, is effectual only where, in con

Before his death W. contracted to sell the estate to denection with process against the person for commenc

fendant below, defendant taking possession and pay.. ing the action, property in the State is brought under

ing part of the purchase-money. In an action brought the control of the court and subjected to its disposi

by H. and B. to compel specific performance by detion by process adapted for that purpose, or where the

fendant of his agreement to purchase, it was objected judgment is sought as a means of reaching such prop

that there was a defect of parties plaintiff on the erty or affecting some interest therein; in other words,

ground that H. and B. were not able together to make where the action is in the nature of a proceeding in

a title that ought to be satisfactory to defendant. rem. Ib.

Ileld, that the objection was not well taken. The 7 Relation of Federal tribunals to State tribunals.

execution of the contract (with the partial payment Whilst the courts of the United States are not foreign

thereoni) was a transfer in equity of the title of the tribunals in their relations to the State courts, they land to defendant, leaving in the representatives of are tribunals of a different sovereignty, exercising a

W. simply a naked title as trustee for defendant, to bo distinct and independent jurisdiction, and are bound

conveyed upon performance on his part.

By the to give to the judgments of the State courts only the

terms of the will this legal title was vested in B., the same faith and credit which the courts of another

trustee, to preserve remainders. Judgment of Circuit State are bound to give to them. Ib.

Court, South Carolina, affirmed. Bissell, appellant, 8. Meaning of "due process of law": essentials to

v. Heyward. Opinion by Huut, J. constitute it.-The term, “due process of law,” when

2. Tender: must be kept good to stop interest and applied to judicial proceedings, means a course of legal

costs.-To have the effect of stopping interest or costs proceedings according to those rules and principles

a tender must be kept good, and when used by the which have been established in our systems of juris

debtor for other purposes it ceases to have that effect. prudence for the protection and enforcement of

(Rouell v. Bull's Head Bank, 55 Barb. 574; Giles v. private rights. To give such proceedings any validity,

Hart, Salk. 622; Smailwood v. Squire, id. 623.) Ib. there must be a tribunal competent by its constitution

3. Contract made with reference to Confederate currento pass upon the subject-matter of the suit, and if that

cy: measure of value.-The contract was made with refinvolves merely a determination of the personal liabil

erence to Confederate currency, which was the only ity of the defendant, he must be brought within its

currency in circulation at the place where it was made jurisdiction by service of process within the State, or

(South Carolina) at the time. The master found the his voluntary appearance. Ib.

balance due upon the contract to be $28,353.50, and in

reaching this result he compared the value of the ConREMOVAL OF CAUSE. Removal under act of 1875, $ 2: when not allowed.

federate currency, in which the contract was payable, In order to entitle a party to a removal of a case from

with United States paper currency at the dates of the a State to a United States court under section 2 of

contract and of the tender. The defendant insisted

that the value of the Confederate notes should be rethe act of 1875, providing for the removal of suits arising under the Constitution or laws of the United

duced to gold or sterling exchange, which would still States, the decision of the case must depend upon

further depreciate their value. Held, that this objecthe construction of the law or Constitution. A cause

tion could not be sustained. By the laws of the cannot be removed from a State court simply because,

United States all contracts between individuals could in the progress of the litigation, it may become neces

then be lawfully discharged in the legal-tender notes sary to give a construction to the Constitution or

of the Uuited States. These notes, and not gold or laws of the United States. Accordingly, where in an

silver sterling exchange, were the standard of value to action brought to restraiu defendants below from de

which other currencies are to be reduced to ascertain positing the debris from their mines in the channel of

their value. (Knox v. Lee, 12 Wall. 457; Thorington v.

Smith, 8 id. 14; Dooley v. Smith, 13 id. 604; Rer. a river, the petition for removal set forth defendants' Stat. So. Car., p. 285.) Ib.

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Payment of the alleged loss being refused, the plain

tiffs instituted the present suit in the State court, OWNERSHIP.

which was subsequently removed into the Circuit SUPREME COURT OF THE UNITED STATES, OCTOBER

Court of the same district, the parties agreeing that TERM, 1877.

the plaintiffs might prove any claim they have under

the common counts as if they should add special LYCOMING FIRE INSURANCE Co., plaintiff in

counts, and that the defendants might prove any error, v. Haren et al.

defense they have to the action under the general

issue, the same as if it was set up in a special plea. In a ire insurance policy on buildings, issued to plaintiff below, it was provided that "if the interest of the in

Pursuant to that stipulation the parties went to sured in the property be any other than the entire un- trial and the verdict and judgment were for the plain. conditional and sole ownership of the property for the use and benefit of the insured, or if the buildings tiffs in the sum of thirty-seven hundred and thirty insured stand on leased ground, it must be so repre- dollars damages, with costs of suit. Exceptions were sented to the company and so expressed in the wriiten part of the policy, otherwise the polier shall be void.

taken by the defendants to the charge of the court, The plaintiff owned the land upon which the buildings and they sued out a writ of error and removed the yere erected in fee simple, and the premises were leased to another party for a term of years, Nothing

cause into this court. was expressed in the policy to indicate that the interest Neither title deeds nor evidence of the same was of the insured wis other than the entire unconditional and sole ownership of such property, or indicating that

introduced by the plaintiffs, but the defendants admost of the buildings stood on leased ground. Heid, mitted at the trial that “the plaintiffs were owners in that the condition of the policy was not violated, and plaintiff was entitled to recover thereon in case of

fee of the land on which the buildings insured stood" loss.

at the time of the fire, as appears by the bill of excepNerror to the Circuit Court of the United States for tions. Proofs were introduced by the plaintiffs, the Northern District of Illinois. The facts are

admitted by the defendants to be in due form, which contained in the opiniou.

showed that the buildings described in the policy Mr. Justice ('lifford delivered the opinion of the

were, on December 31, 1870, destroyed by fire, and court.

that the property insured belonged to the plaintiffs, Policies of fire insurance are contracts whereby the subject to the lease mentioned in the proofs so introinsurers undertake for a stipulated sum to indemnify duced, to which more particular reference will the insured against loss or damage by fire, in respect

presently be made. Other evidence was introduced to the property covered by the policy, during the pre

by the plaintiffs, but the defendants offered no eviscribed period of time, to an amount not exceeding the dence, and the court directed the jury to return a sum specified in the written contract. Angell on L. verdict in favor of the plaintiffs for the amount of and F. Ins. 43.

the policy, with interest from the expiration of sixty Insurance was effected by the plaintiffs, on the ninth

days subsequent to the time the proof of loss was exof May, 1870, in the company of the corporation de- hibited. fendants, for the term of one year, against loss or Seasonable exceptions were filed to the charge of damage by fire, to the amount of three thousand the court, upon the ground that the lease mentioned dollars, covering the ten buildings therein described, in the proofs of loss show that the plaintiffs were not cach of which being insured in the sum of three at the time of the loss the entire, unconditional, and hundred dollars.

sole owners of the property for their own use and It appears by the bill of exceptions that the policy benefit. was in the usual form of policies issued by the defend- Sufficient ap pears to show that the fee-simple title ants, and that it provided that “if the interest of of the land was in the plaintiffs and that they were the insured in the property be any other than the the entire owners of the property destroyed, subject entire, unconditional, and sole ownership of the to the lease mentioned in the proofs of loss, and it was property for the use and benefit of the insured, or if admitted by the defendants that the fire caused a total the buildings insured stand on leased ground, it must loss of the property and that the value of the buildings be so represented to the company, and be so expressed exceeded the amount of the insurance. in the written part of the policy, otherwise the policy By the terms of the lease referred to in the proofs of shall be void."

oss it appears that the instrument was for a term of Two other stipulations are contained in the policy, ten years, from May 1, 1868, to May 1, 1878, and that it which it is important to notice: 1. That “the use of covered the land on which the insured buildings stood general terms, or any thing less than a distinct specific and the buildings and improvements to be built thereagreement clearly expressed and indorsed on the on, having been executed before the buildings were policy, shall not be construed as a waiver of any print- | erected, at a rental of three thousand five hundred ed or written condition or restriction therein." 2. dollars per annum for the first five years, and five That the policy is made and accepted in reference thousand nine hundred and seventy-six dollars per to the foregoing terms and conditions, which are annum for the second five years. declared to be a part of the contract, and may be used Ten buildings were to be erected, to cost not less and resorted to in order to determine the rights and than twenty-four thousand dollars, and the lesser was obligations of the parties to the policy.

to pay one-half the amount in installments, each inNothing was expressed in the written part of the stallment to be one thousand dollars, and to be paid policy indicating or tending to indicate that the inter- when the lessee had expended twice that amount in est of the insured in the property purporting to be the prosecution of the work. Arrangements of a insured was any other than the entire, unconditional, contingent character are also prescribed in case the and sole ownership of such property for the use and lease is continued or determined, and for the basis of benefit of the insured, or indicating or tending to adjustment in either event and for payment or repayindicate that the buildings insured stood on leased ment as the case may be, which it is not necessary to ground.

reproduce in the present case.

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