Gambar halaman

Wis. 367.) The power of courts in this State, in such

UNITED STATES SUPREME COURT ABSTRACT, actions, to divest the husband of the title to realty in

OCTOBER TERM, 1877. favor of the wife, rests entirely on sec. 29, ch. III, R. S., as construed in Donovan v. Donovan, 20 Wis. 586,

COMMON CARRIER. and subsequent cases. Bacon v. Bacon. Decided Feb. 5, 1878. Opinion by Ryan, C. J.

1. Contract for transportation over connecting lines :

power to make and liability under: presumption.-De2. Alimony: not an estate, but an allowance. In the

fendant, a railroad company, contracted to carry sixstatute, as in the practice of the English courts, ali

teen car-loads of cattle for defendant from East St. mony is not an estate, nor part of the husband's estate

Louis to Philadelphia. Nothing was said about a assigned to the wife as her own, but an allowance, an

change of cars or about other companies. Held, that nual or in gross, out of the husband's estate, for the

defendant might, unless forbidden by its charter, make nourishment of the wife; and the court granting it

a contract to carry cattle over connecting lines, and may from time to time revise its judgment, and ren

it would be liable in all respects upon other lines, as der such new judgment as it might originally have

on its own. Railroad Co. v. Pratt, 22 Wall. 123. In made, in respect thereto. Ib.

such cases the public has a right to assume that the FIRE INSURANCE.

contracting company has made all the arrangements 1. Conditions in policy avoiding it: unoccupied build

necessary to the fulfillment of the obligations it has ing.-A policy of insurance against fire, which provides

assumed. Railway Co. v. Blake, 7 H. & N. 987; Bulin terms that it shall be void if the building insured

ton v. R. R., L. R., 3 Q. B. 549; Weed v. R. R., 19 shall become unoccupied without the consent of the iu

Wend. 534; Knight v. R. R., 56 Me. 240. Judgment surer indorsed on the policy, is voidable at the option

of Circuit Court, E. D. Missouri, affirmed. Ohio & of the insurer after a loss, if, at the time of such loss,

Mississippi R. R. Co., plaintiff in error, v. McCarthy. the building was unoccupied without the insurer's

Opinion by Swayne, J. consent so indorsed. Gans v. St. Paul F. & M. Ins. Co.

2. Ultra vires: when railroad corporation cannot set Decided Jan. 3, 1878. Opinion by Lyon, J.

up.- Injury was done to plaintiff's cattle by the delay 2. When company estopped from claiming avoidance. -If an insurance company, with notice, actual or con

and negligence of a connecting line to transfer thein structive, of facts rendering the policy voidable at its

promptly. In an action against defendant for the loss,

held, that defendant could not set up that the contract option, objects upon otber grounds only to proofs of

of shipment was ultra vires. When a contract is not loss furnished, and subjects the insured to trouble

on its face necessarily beyond the scope of the power and expense in furnishing new proofs, it will be

of the corporation by which it was made, it will, in the estopped from setting up such facts in avoidance of

absence of proof to the contrary, be presumed to be the policy. And this estoppel arises although such first proof did not, and the new proofs do, furnish the

valid. Corporations are presumed to contract within company cumulative evidence of the facts relied upon

their powers. The doctrine of ultra vires, when in

voked for or against a corporation, should not be as a breach. Ib. 3. When knowledge on part of agent of violation of justice or work a legal wrong. (Union Water Co. y.

allowed to prevail where it would defeat the ends of conditions is knowledge of company.-Knowledge on the part of the agent of an insurance company, author

Murphy's Co., 22 Cal. 620; Morris R. R. Co. v. R. Rd. ized to issue its policies, of facts which render the con

Co., 29 N. J. Eq. 542; Whitney Arms Co. v. Burton,

63 N. Y. 62.) Ib. tract voidable at the insurer's option, is knowledge of

3. Agency: principal not bound by acts of agent beyond the company; and the effect of such knowledge is not varied by stipulations in the policy, that "the use of

powers. - A person sent with the cattle to take care of general terms, or any thing less than a distinct, spe

them, in order to get them forwarded over the con

necting line, signed under protest a new contract. cific agreement, clearly expressed and indorsed on the policy, shall not be construed as a waiver of any

Held, that plaintiff was not bound by such contract so priuted or written condition or restriction therein;"

as to relieve defendant. Ib. that the agent “has no authority to waive, modify or

4. Estoppel: assigning new reason for aet after suit strike from the policy any of its printed conditions;"

brought. -- Defendant gave as a reason for neglect to that his assent to an increase of risk is not binding ship the cattle, want of cars, and gave evidence to that upon the company until it is indorsed upon the policy,

effect on trial. Afterward he claimed that the Sun. and the increased premium paid; and that, in case

day law of West Virginia forbade the shipment of cattle the policy shall become void by violation of any con

on Sunday. Held, that this point could not be raised dition thereof, the agent has no power to revive it. Ib.

by defendant. Where a party gives 'a reason for his 4. Stipulation in policy cannot make insurance agent

conduct and decision touching any thing involved in a agent of insured.-Where A is authorized by an insur

controversy, he cannot, after litigation has begun, ance company to receive applications for and issue its

change his ground and put his conduct upon another policies, a provision in a policy so issued, that “any

and a different consideration. He is not permitted

thus to mend his hold. person, other than the assured, who may have pro

He is estopped from doing it cured the insurance to be taken by this company,

by a settled principle of law. (Gold v. Banks, 8 Wend. shall be deemed to be the agent of the assured, and

567 ; Holbrook v. White, 24 id. 169; Everett, v. Şulters, 15 not of this company, under any circumstances what

id. 474; Wright v. Reed, 3 Durnford & East, 554; Dui'y ever, or in any transaction relating to this insurance,"

v. O'Donovan, 46 N. Y. 223; Winter v. Coit, 3 Selden, cannot substitute the assured for the company as A's

294.) Ib. principal. Ib.

INJUNCTION. 5. Waiver of written condition by parol.-A clause in Will not be granted to restrain acts done under valid an insurance policy, declaring that a waiver of any condition thereof, to be binding, must be indorsed

act of Congress.- In an action by the State of Wisupon it, may itself be waived by parol, or by acts in

consin to enjoin the construction of a canal in the pais. Ib.

State of Minnesota by the city of Duluth, which it was


claimed would injure or render unnavigable a naviga- Bennett's Fire Insurance Cases and the American Reble river, which formed the boundary between Minne

ports, a very proper thing, as the volumes of reports sota and Wisconsin, it appeared that the United States mentioned have found their way into the libraries of Congress had appropriated $10,000 toward construct- very many lawyers both in this country and England. ing the canal. Held, that Congress had authority to The volume is excellently printed and bound and conmake the appropriation and thus adopt the work, and tains a good index and a table of cases cited. this court could not forbid such work. Cases cited: South Carolina v. Georgia, 93 U. S. 4; Gibbons v. Og

WHARTON'S LEGAL MAXIMS. den, 9 Wheaton; The Blackbird Creek Marsh Case, 2

Legal maxims, with observations and cases. Part I. Ono Peters, 250; The Wheeling Bridge Case, 18 How. 528; hundred maxims, with observations and references to Gilman v. Philadelphia, 3 Wall. 713. Bill in equity

English cases. Part II. Eight hundred maxims, with

translations, by George Frederick Wharton, of the Engdismissed. State of Wisconsin, complainant, v. City of lish Bar. To which are added in this edition, Part III.

Several hundred maxims, with references to American Duluth. Opinion by Miller, J.

cases. New York: Baker, Voorhis & Co., 1878.

A collection of legal maxims is always interestNEW BOOKS AND NEW EDITIONS.

ing reading, and there is no doubt that the prin

ciples of law conveyed thereby obtain a more perWOOD ON FIRE INSURANCE.

manent lodgment in the mind than do abstract A treatise on the law of Fire Insurance, adapted to the

statements or the law itself. The tendency of people present state of the law, English and American, with to put the results of their experience into these brief, copious notes and illustrations. By H. G. Wood, author of "The Law of Nuisances," "The Law of Master and

homely expressions indicates in what estimation the Servant, etc. Banks & Brothers, New York and maxim is held as a means of conveying practical Albany, 1878.

truths. Every business or professional man of expeNY work bearing the name of Mr. Wood as author rience has at his tongue's end numerous maxims peris certain to treat of the subject to which it

taining to his calling, and the lawyers are not behind relates in a way that cannot be improved upon. The

any of the others in this matter. Broom has long reputatiou this gentleman has achieved as a careful,

been the standard writer on this subject, though he painstaking and consequently accurate writer is a

does not by any means include all the current sayings guarantee to the profession that they will find in the

of the profession. The present collection embraces, book before us the most complete as well as the latest

we imagine, every thing of value or that has received exposition of the law of Fire Insurance.' But not

the approval of authority. The maxims given by Mr. only in the way of accuracy is Mr. Wood pre-eminent

Wharton number nine hundred, and about four hunamong modern law writers. His skill in deducing

dred are added by the American editor. Very many principles from adjudicated cases, and his happy manner

of these four hundred are indeed repetitions of of expression, make his treatises at once instructive

what is given by Mr. Wharton, and are merely insertand entertaining. Elementary law books upon special

ed in order to refer to the American adjudications subjects are too often merely a jumble of case head

upon them, but it may safely be said that the book notes, strung together without much system, and

contains fully twelve hundred maxims. The obseroftentimes serving to confuse rather than to enligh

vations and illustrations appended to the first hundred ten the student. But in the books of this author,

maxims are well written, and clearly explain and apply the principles that govern the subject upon which he

them. The references to American cases are full and treats, with their essential modifications, are stated in

we should judge accurate. The collection of maxims his own language, and the expositions of the courts are

with explanatory notes taken from the Civil Code forused to fortify and give authority to his statements.

merly prepared for the State of New York by the The present work has come to the profession at an

commissioners of the Code, but never adopted, adds opportune time. During the past few years the law,

materially to the value of the work. In every way controlling many features of insurance contracts, has

the book is well done and we heartily recommend it been essentially modified, especially in relation to the

to the profession. powers and functions of agents, implied waiver, estoppel and the scope of the risk, and there was no work

DIGEST OF MOAK'S ENGLISH REPORTS. that treated properly of these subjects. The book before us very fully covers every one of them, giving Digest of Moak's English Reports, Volumes 1 to 15 inclusive,

with a list of cases reported, table of cases reversed, overthe gist of the latest and freshest cases, both those ruled and considered, by James Simmons ; also a Diwhich have appeared in the reports and those not yet gest of American Notes, by Nathaniel C. Moak, Albany. published there. The author treats first of the general The English Reports,' edited by Mr. Moak, conprinciples relating to the contract, next comes a chap- tain all the judgments of the English courts renter devoted to the policy and its incidents, then one dered since the begiuning of the year 1872, which relating to the application, including the topics of were believed to be of interest to the legal prowarranties, representations, concealments and misrep- fession of this country. With such judicious discrimiresentation; then come hapters devoted to each of nation have the selections been made that very few these topics, and following them are other chapters American lawyers will ever have occasion to consult wherein are considered the subjects of alteration or an English decision not contained in the series. change of risk, insurable interest, alienation, assign- The digest of the series which is now issued will, ment of policies, double insurance, agents' notice and therefore, practically answer every need of the proofs of loss, limitation of action, adjustment of loss, American lawyer, so far as he feels the need of an subrogation, reformation of policies, questions for English Digest. court and jury, remedies in policies, waiver, estoppel, To the possessor of Mr. Moak's Reports this digest evidence, and mutual insurance. In referring to the will be especially welcome, as it guides him to the cases cited the author notices not only the original coutents of the editor's notes.


whara they are found, but also the place in Of Mr. Simmons' part of the work we cannot speak




in praise, although he has done better than is his custom. His great fault is his failure to give proper and complete cross-references. A single illustration will show how unreliable — inexcusably so - his work is in this regard. The only cross-references given under the title “ Director" are "Joint Stock Company" and “Public Company"; but on turning to “ Corporations" we find the first two principles headed with the catch-line “Power of Directors" and the next two with the catch-line “Liability of Directors." His Index is even worse, as in that under “Directors" he refers only to“ Public Company," this time omitting “Joint-Stock Company" because, very likely, he had discovered there was nothing under that title except “See Public Company.” Here then in a case taken at random we find that Mr. Simmons has not only omitted to give a cross-reference to a title containing few pertinent principles, but has actually given a cross-reference to a title containing absolutely nothing.

Fortunately, however, the compiler's lack will not seriously interfere with the usefulness of the book, since a repetition of principles under different heads renders it almost impossible to miss any thing.

The letter-press, paper and binding are unusually good.

E are pleased to welcome among our list of ex

changes the Juristische Blatter, published at Vi. enna. This periodical is the leading law journal of the Austro-Hungarian empire, and contains each week learned and interesting articles upon legal and social subjects. The great changes that are now being made in the constitution and procedure of the German courts are having a considerable influence in Austria, and the subject of law reform occupies quite a prominent place in the newspapers and magazines of that country. The matters discussed are treated from a philosophical rather than a practical standpoint, but the legislation which results from such discussions is apt to be as practical as that drawn entirely from precedent. The contributions appearing in the numbers of the Juristische Blatter which we have already received, are particularly able and exhaustive.

By a recent amendment of the Constitution of Wisconsin the number of judges of the Supreme Court of that State is to be increased from three to five. The two new judges will be elected by the popular vote in April next. By an arrangement between the leaders of the two political parties, one candidate has been presented by each party. The candidates thus brought forward are David Taylor, republican, and H. S. Ortou, democrat. Both have been Circuit Court judges.



ENJAMIN FRANKLIN WADE died on the 2d inst.

at his residence at Jefferson, Ohio. He was born near Springfield, Mass., October 27, 1800. He received a common school education. He came to Ohio in 1826, and in 1828 was admitted to the bar of that State. In 1835 he was chosen prosecuting attorney of Ashtabula county. In 1837 he was elected to the State Senate, aud was twice re-elected. In 1847 he was elected presiding judge of the third judicial district of Ohio, which office he held until chosen to the United States Senate in 1851, which place he held for several terms. His last official position was that of commissioner to investigate affairs in St. Domingo, which he held in 1871. His reputation as a lawyer was very high, but it was overshadowed by the eminent place in political life occupied by him.

The dean of the Boston University Law School, Hon. E. H. Bennett, has announced the following as the subject for the Hillard prize essay next June: * Insanity as a Defense in Criminal Cases." - - It is stated that the cost of the new Palace of Justice in Brussels, which will be a splendid building, will amount to 35,000,000f. The original estimate was 8,000,000f.

** In

The death is announced in England of Mr. Thomas Chitty, the well-known Special Pleader, at the ripe age of 76. He was the author of several well-known works, Chitty's Practice and a collection of statutes being the best known. He was the father of Mr. J. W. Chitty, Q. C., one of the leaders in the Rolls Court. Mr. Thomas Chitty had the following well-known lords and gentlemen as his pupils in by-gone days: Chancellor Cairns, Lord O'Hagan, Chief Justice Whiteside, Mr. Justice Willes, Mr. Justice Quain, and Sir James Hannen.

In the Croyden, England, County Court, in a case entitled Sanders v. Evans, the English idea of giving every one a chance was well illustrated. Plaintiff sought to recover damages for the loss of a lamb, which had been killed by defendant's dog. answer to his honor, the plaintiff said he could not prove that the defendant was aware that the dog was in the habit of biting other animals. “ His honor thereupon remarked that by the law of England a dog was allowed his first bite. Assuming that the lamb did die through an attack made by the defendant's dog, plaintiff was not entitled to recover unless he could say that the defendant was aware that the dog had previously misconducted himself in a similar way. He, therefore, nousuited the plaintiff, and advised the defendant to take better care of his dog in future.” It is suggested by a correspondent of the Solicitors' Journal, that there is a statutory provision covering the case. In that case the court may have erred, but it is to be assumed that he stated the common law correctly.

Samuel Currey, one of the oldest members of the Rhode Island Bar, died at Providence, R. I., on the 1st nst. He filled various public stations during his life.

Asa Biggs died at Norfolk, Virginia, on the 6th inst., aged sixty-eight. He held the position of member of Congress for several terms, United States Senator and United States District Judge for North Carolina.

In the case of Bowery Nat. Bank v. Duryee, decided by Judge Lawrence on the 20th ult., it is held that under section 558 of the new Code a party who obtains an order of arrest must set forth in his complaint tho facts which he alleges entitle him to such an order, so that the defendant may take issue on that question and have the issue disposed of by a jury.

The Senate have confirmed the nomination of Judge Blatchford for Circuit Judge.

The Albany Law


ALL communications intended for publication in the

tack upon a judge in or about the courts. In 1616 LAW JOURNAL should be addressed to the editor, and the Sir John Tyndal, one of the masters in chancery, name of the writer should be given, though not necessa

was killed by a shot fired at him while entering his rily for publication.

chambers at Lincoln's Inn, by a man named BertCommunications on business matters should be ad

ram, against whom he had given a decision. Shortly dressed to the publishers.

thereafter the assailant committed suicide. In 1631

Chief Justice Richardson, who was holding the asJournal. sizes at Salisbury, was assaulted by a condemned

prisoner, who threw a brickbat. For this act

the prisoner was immediately and severely punished, ALBANY, MARCH 16, 1878.

his right hand being forth with cut off and fixed to

a gibbet, upon which he was then hanged in the CURRENT TOPICS.

presence of the court. HE president evidently means that the regular

An “inquiring friend” desires to know what the business of the United States courts shall be views of THE LAW JOURNAL are as to the future of done at the regular terms, as he has vetoed a bill

the Revision, which would seem to indicate that which had passed both houses of Congress, author

THE LAW JOURNAL has not made itself wholly inizing the United States Circuit Court for the South-telligible on the subject. The view of The LAW ern District of Mississippi to hold a special session JOURNAL is, in short, that the commission should at Scranton, in Jackson county, for the purpose of

be reorganized and continued, for the sole purpose conducting the trial of suits instituted by the gov- of revising and reporting the remaining four comernment against persons alleged to have stolen tim- pleted Codes, heretofore reported by the Code and ber from the public lands. The grounds assigned Practice Commissioners, which are, the Code of by the president were that the government could not

Criminal Procedure, the Political Code, the Penal prepare for the trial of the cases by the time the

Code and the Civil Code. The work of such a recourt was appointed to be held, and that no pecun- vision would not be a laborious one at all. It must iary provision was made for such preparation. be assumed at the start, that the reports which these Scranton, where the sitting was proposed to be held, commissioners made were carefully considered, and is in the heart of the timber district, and it is inti- need scarcely any thing now to be done to them, mated that those against whom proceedings have beyond adapting them to subsequent legislation. been taken are more confident of success there than

The work could all be done in season for the next they would be at another place, and that the bill | legislature. The law which we would recommend was passed in their interest.

to the legislature to pass, if our advice were asked,

would be this: The commission to revise the statThe narrow escape of the Master of the Rolls utes, established under the act for the revision of from death at the hands of an insane suitor, noticed the Statutes, passed March 20, 1870, shall be reby us a few weeks ago, has furnished the English organized, and continued for one year from the first papers an opportunity to discuss the dangers of the day of May next, in the manner and for the purjudicial position, which are said to be much greater pose following, that is to say, five commissioners than is generally believed. A disappointed litigant shall be appointed in the manner provided by the who has, as is not unusual, staked not only his prop- said act, who shall enter upon the exercise of their erty but his whole prospects in life upon the result office on the first day of May next, when the terms of a single decision, is not the one to take coolly a of office of the present commissioners will expire, determination against him. This is especially so and whose duty it shall be to revise the Code of when the adverse result is not by any reason of a Criminal Procedure, heretofore reported by the want of merit in his case, but because of a failure Commissioners on Practice and Pleadings, and the to comply with some technicality of procedure Political, Penal and Civil Codes, reported by the which he before knew nothing about, and even then Commissioners of the Code, and report the same, does not half understand. The people generally with such amendments as may appear to them necdo not comprehend the narrow limits of judicial essary, at the next session of the legislature. power, and are apt to attribute the conclusion at which a judge arrives to influences other than the The bill providing that the verdict of nine jurors true ones. It is not to be wondered that attacks shall be sufficient in civil actions, recently introare sometimes made upon judges, but rather that duced in the legislature and referred to in our last they are so uncommon. The judicial history of number, will probably meet with considerable oppoEngland seems to furnish but four recorded in- sition from many who regard any change in respect stances, including the present one and the famous to the system of jury trial with apprehension. egg assault, where a suitor has made a personal at- | Wherever the common law prevails the institution

Vol. 17.-- No. 11.

of trial by jury is looked upon as the most excellent unprotected. People are often in incipient stages among all human contrivances for securing justice of insanity, when they should be committed before in controversies between individuals, or between they become violent enough to do harm. This law society and those who are charged with violating would compel the physicians to stand still until the such regulations as society may have deemed neces patient has actually become a furious madman. sary for its security and order. And an essential The judge believes that the law of 1874, with some excellence of the institution is believed to be the few amendments, would accomplish all that is derequirement of unanimity. Now and then, however, sired. Authority should be given only to such phyan obstinate juryman will so embarrass the trial of an

sicians as are approved by a court of record to important case that courts and litigants will begin to certify to the insanity of a person who is taken to doubt whether the system so extolled is the best, at

an asylum, and this approval should be given in least for civil trials. A case entitled Regina v. open court and upon an application made in public. Truelove, recently tried in the Queen's Bench Divis- | The certificates upon which a person is committed ion of the English High Court of Justice, was left to an asylum should be filed with some of the higher undetermined, simply because a single juror would courts of record and be accessible to every one, and not accept the law applicable to the case from the

a report from the person in charge of an asylum court, but would hold to his own views of what it should be required to be made to a court of record ought to be. Cases of this kind are in the experi- of each committal and the reasons thereof, within ence of every practitioner, oftentimes the disagree three days after it is made. He would make a mament being produced by a less commendable mo

licious conspiracy to send a sane person to an insane tive, yet the annoyance has not been such as to asylum a felony instead of a misdemeanor, as at create any thing more than a few complaints in the present. The suggestions made by Judge Davis, newspapers, which had no influence upon the

while they may not meet approval in all respects,

general public or upon legislation. The case men

are worthy of consideration. tioned has, however, led to considerable discussion in England, and it would not be surprising if a

A bill has been introduced in the legislature prostrong effort should be made to establish there a

viding that in any criminal proceeding or trial, the rule somewhat similar to that proposed in the legis- complaining witness may be assisted by such counlative bill mentioned. Unanimity was not required sel as he may select, unless the district attorney or in the early days of the jury trial. Accord his assistant appears. This will not vary the pracing to Lambard, in a jury of twelve the ver

tice usual heretofore, but it will give the prosecutor dict of eight was to prevail, and from Bracton and

as a right what has heretofore been accorded to him Fleta it would appear that the practice in their time as a courtesy. The provision of the bill is a very was for the judges, when the jury could not agree, proper one. to add to its number until twelve out of the entire number could be got to concur in a verdict. In Two bills of local interest are pending in the Senthe time of Edward I, the judge had the option of ate. One provides for the creation of a court of doing this or starving the jurors until an agreement civil jurisdiction, to be known as the Supreme was had. The starving process continued for many

Court of Rochester; and the other directs the boards years in vogue, though it has in modern times been of supervisors of the several counties in the Third done away with. In France, Italy, Germany and Judicial District to appropriate the sum of $10,000 Scotland unanimity is not required, and in Texas to be applied in payment of the salaries of the jusand Nevada a verdict of nine is sufficient.

tices of the Supreme Court of said district, in ad

dition to the compensation now allowed them by A reporter of the New York Herald has inter- salaries of the justices mentioned.

law. This adds the sum of $2,500 per annum to the viewed Mr. Justice Davis, of the Supreme Court of this State, upon the subject of our present lunacy laws, and he gives to the public the views of the The passage of the supplemental code by the judge, which contain some interesting suggestions. almost unanimous vote of both houses does not In speaking of a bill introduced in the legislature by dishearten the opponents of that measure, who have Mr. Thain, he says, that while in some respects excel-renewed the struggle before the executive. It lent, it has obvious defects. The first clause of the would seem that the vote upon the passage of the proposed law requires a jury trial in every case ex- bill was so decided that the action of the governor cept of violent mania, before committal. This, the would avail nothing to change the result. Yet, judge thinks, would entail too much trouble and while there is life there is hope, and the governor expense upon the community. The second clause may be induced to withhold his assent, and may allows no summary committal except in cases of present such cogent reasons as to influence senators furious mania; this would leave the community too | and assemblymen to abandon the position they

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