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in relation to the items of costs to which the plaintiff | O Tuesday night Sir John Holker, the Attorney
of Mr. Justice Nelson. Stillwell v. Ins. Co., 4 Cent. The necessary disbursements in the action are to be Law Jour. 463.
adjusted by the clerk, and shall be stated in detail and The writ of mandamus is granted.
verified by affidavit. This includes fees allowed by law to sheriffs, clerks, and other officers, witnesses'
fees, referees' fees, expenses of publication of sumCOSTS TAXABLE IN FORECLOSURE CASES.
mons and notice, compensation of commissioners in Na motion made in the case of Armstrong v. Mur
taking depositions, expenses paid for affidavits and dock, which was heard at the April, 1878, Special
postage. Term of the Supreme Court of New York, at Utica, the question arose as to costs to be allowed in the foreclosure of mortgages, where decree is taken in default. LAW LEGISLATION IN ENGLAND. The following is taken from the opinion of Noxon, Justice, on deciding the motion in the case :
LONDON, May 16, 1878. The question arising in this case is an important one
General, introduced in the House of Commons, his is entitled, and which the clerk is authorized to tax,
"bill for modifying and amending the law relating to in actions for the foreclosure of mortgages in cases indictable offenses," otherwise known as the Criminal where a decree is taken by default. The law in rela- Code. The bill has been drawn up mainly by Sir tion to taxation of costs in such cases is general, and James Stephen. The Attorney-General explained its applies alike in all parts of the State. There seems,
provisions at some length, dwelling chiefly on the alhowever, to be a diversity of opinion in the profession terations it proposes to make in the law. It abolishes as to the items properly taxable. The clerks of the the distinction between felony and misdemeanor, and courts in many cases are unable to tax such costs prop- substitutes for them the term “indictable offense." erly, and frequently fall into error without design. Accessories before the fact are done away with, and The statute itself is plain and simple. Although the accessories and criminals are dealt with on the same statutes which formerly regulated the costs and fees footing. There is a large diminution in the number of of attorneys and counsel have been repealed, certain maximum punishments, with a provision against acitems are now allowed to the prevailing party to in- cumulated penalties of hard labor. The term “maldemnify him for his expenses in the action, and these ice" is entirely omitted from the law, constructive allowances are termed costs. In a foreclosure case, murder is done away with, and a more reasonable and where judgment is taken by default, the plaintiff is intelligible definition of provocation is introduced. entitled on application for judgment to...... $25 00
The definitions of laroeny and theft are greatly simFor each defendant served with process not ex
plified by sweeping away the present refinements, and ceeding ten defendants....
1 00 the law of forgery is placed on a more definite and For each defendant exceeding ten defendants.. 2 00
consistent footing. This part of the bill will superFor attending and taking deposition of a wit
sede dozens of text-books, scores of acts of Parlianess, conditionally or to perpetuate his testi
ment, and piles of legal decisions. mony......
10 00 The second part of the bill refers to procedure, and For drawing interrogatories to answer to a com
among the principal alterations under this head are mission for taking testimony.....
the entire abolition of the subtleties of the law of For attending examination of a party before
venue; securities that ample notice shall be given to trial........
an accused person when proceedings are taken by inFor appointment of a guardian for an infant de
dictment in the first instance, and provisions not fendant (but only one in any one action)...... 10 00 only for changing the place of trial, but for conductFor procuring an injunction order.....
10 00 ing trials on the model of civil instead of criminal The plaintiff is also entitled to ten per cent on
procedure. Right of appeal and power to grant new the recovery for any amount not exceeding
trials in criminal cases are given under certain condi$200.
20 00 tions, and an improvement in criminal pleading is For any additional amount not exceeding $400 proposed which will sweep away the present system of five per cent.........
verbose and technical indictments. For any additional amount not exceeding $1,000
Though the bill has been launched under governtwo per cent......
20 00 meut patronage, it is improbable tbat it will become If the action is settled before payment, the same law this year. allowances upon the amount paid or secured upon set- On the motion of Mr. Osborne Morgan, a select comtlement is to be allowed at one-half of the above rates. mittee of the House of Commons has been appointed
I am not aware that the clerk is authorized to tax to inquire what steps ought to be taken for simplifyany other items to be included in a bill of costs for the ing the title and facilitating the transfer of land. In foreclosure of a mortgage (exclusive of disbursements) submitting his motion, Mr. Morgan called attention in cases of default. No trial fee is allowed, and no to the recent frauds of Dimsdale and others, and costs of motion are allowed from the commencement showed that they would have been prevented by even of the proceedings in the action to the entry of the the rudest form of registration. He pointed out how decree or judgment. The services performed are all each measure heretofore adopted with this view had ex parte, and the costs and allowances above provided failed from some defect in drafting, and said that as it are such costs and allowances as the statute bas pro- was necessary to start afresh ou entirely new lines, he vided to cover the plaintiff's expenses for the services would recommend a registration of deeds, a cadastral performed. If the services in any case are worth survey for purposes of identification and power of sale more to the attorney who performs them, he must look for every acre of land in the country, however held, to the party who employs him,
and a registry of sales.
on the property embraced in the assignment. Bauk. RECENT AMERICAN DECISIONS.
ruptcy proceedings were instituted a few days there
after and an assignee appointed, who subsequently SUPREME COURT OF WISCONSIN, MAY, 1878.*
obtained possession of the property. Ou motion by
the sheriff to have the execution declared a lien ou AGENCY.
the property, on the ground that, because of the nonWhen principal liable for acts of agent.--A principal filing of the inventory required by the statute within is responsible for the act of his agent when he has
thirty days, tbe assignment was void. Held, that uneither given the agent authority to do the act, or justi
der the New York Insolvent Act of 1877 (chap. 465), fied the party dealing with the ageut in believing that
the failure to file the inventory does not render the the latter had such authority. Kasson v. Noltner.
assignment void ab initio ; and that at the time the exe
cution was issued the bankrupt had no leviable interest PAYMENT.
in the property to which it could attach. U. S. Dist. Payments on note not indorsed allowed, notwithstand
Ct., S. D. New York. In re Crough well, 17 Nat. Baukr. ing stipulation to contrary.—A stipulation in the note Reg. 337. that no credit should be allowed on it, anless indorsed upon it by the payees, will not prevent the allowance, in an action upon the note, of any authorized pay- When order cannot be enforced by imprisonment: at. ment actually made, but not indorsed. Kasson v. tachment.-Where an order is in effect a final judgNoltner.
ment for the payment of money, whether the proceedRAILROAD.
ing in which it is made is of equitable or legal cogniNeglect to fence: contributory negligence : defense in
zance, it camot be enforced by imprisonment upon the action for animal killed.-In an action against a rail- theory of a contempt. The Atlantic Mutual Life Inroad company for injury occasioned by failure to erect
surance Company was adjudicated bankrupt upon the or to maintain fences on the line of its road, as in other
petition of one of its officers. The adjudication was actions for negligence, contributory negligence of the
subsequently set aside and the proceedings vacated. plaintiff is a defense. The cases in this court on the
l'pon application of the marshal for an order requirsubject reviewed. Plaintiff, living about three-fourths
ing the petitioner to pay the marshal's fees for serving of a mile from defendant's track, which he knew to be
the notices, and that such order be enforced by atunfenced, permitted his cow to pasture, in summer
tachment, held, that the court had no power to grant (presumably with other cattle), on a large tract of un
an attachment in such a case; that the marshal had an inclosed grass land, extending from the neighborhood
adequate remedy by action, to which he must resort. of his residence to the track; and she passed upon the
U. S. Dist. Ct., N. D. New York. In re Atlantic Mut. track from said land, and was injured. Held, that
Life Ins. Co., 17 Nat. Bankr. Reg. 368. upon these facts the question of contributory negligence, being open to doubt and debate, was for the jury. (Lawrence v. Railway Co., 42 Wis. 322, distinguished.) Curry v. Ch. & N. W. Ry. Co.
1. Debtor failing to give information.-A merchant is under obligation to his creditors to exhibit a state
ment of his accounts when demanded, and if he fails to 1. Will signed by mark or by another person.-Under do so he cannot complain of proceedings in bankruptoy our statute of wills, if the testator's name is, in his commenced against him without the requisite uumpresence and by his express direction, signed to the ber of creditors joining in the petition, provided a will by another person, or if the testator affixes his sufficient number join before the trial. U. S. Dist. mark thereto, that is a sufficient siguing. Will of Su- (t., S. D. Mississippi. Perin & Gaj Manuf. Co. v. san Jenkins.
Peale, 17 Nat. Bankr. Reg. 377. 2. Will supported against testimony of subscribing 2. Jurisdiction : what petition should contain,-The witness.-A will may be supported against the testi- petition should contain an averment that the petimony of some, or even all, of the subscribing witnesses, tioners believe that they constitute one-fourth in numif their testimony is overborne by other evidence. ber of the creditors, and that the amount due them Where probate of a will was refused merely on the constitutes one-third of the unsecured provable debts; ground that the two attesting witnesses did not con- it is not required that they should know such to be the cur in testifying to its having been executed and at- fact. Ib. tested in the manner required by the statute, no other 3. Negotiable paper: what is.-An agreement, on the fact being found, the judgment is reversed, and the maturity of a note, given in the course of commercause remanded for a new trial. Ib.
cial business, that it may lay over for that day, is only a forbearance to sue, and does not destroy the character
of the note as commercial paper. Its non-payment is RECENT BANKRUPTCY DECISIONS.
a suspension and non-resumption of payment, and
when continued for forty days constitutes an act of ASSIGNMENT FOR BENEFIT OF CREDITORS.
bankruptcy. Ib. When not void: execution, lien of.–The bankrupt made a voluntary assignment for the benefit of his creditors. Within thirty days thereafter certain cred
When distinct fees not allowable : marshal's fees.itors obtained judgment against him and issued an
The order to show cause and the copy of the involunexecution to the sheriff, under which a levy was made tary petition constitute but one writ or process, and
the marshal is not authorized to charge a distinct fee * To appear in 43 Wisconsin Reports. From 0. M. Con- for the service of each. When the marsbal makes a over, Esq., State Reporter.
charge for personal attention in taking care of the
bankrupt property, be must show by his oath that such services were actually rendered, and the necessity for
UNITED STATES SUPREME COURT ABSTRACT, them. He is not entitled to compensation of one dol
OCTOBER TERM, 1877. lar per hour for the services of persons employed to assist him in making an inventory. When he makes
CONSTITUTIONAL LAW. a charge for time necessarily employed in making an inventory he must support it by his oath as to the fact
1. Act impairing obligation of contract: statutory of the service and the necessity for it. U. S. Dist. Ct.,
construction: privilege of manufacturing malt liquor : Oregon. In re Hellmar, 17 Nat. Bankr. Reg. 362.
prohibitory liquor law.-A statute of Massachusetts passed in 1809 providing for the chartering of manu
facturing corporations contained this: “ Provided alJURISDICTION.
ways that the Legislature may from time to time, 1. The required number and amount joining in peti
upon due notice to any corporation, make further pro
visions and regulations for the management of the tion gives.-Where, upon the return of the order to show cause or upon the adjourned day, the petition
business of the corporation and for the government ing creditors fail to appear or to proceed, any other
thereof, or wholly repeal any act or part thereof croditor to the required amount may intervene and
establishing any corporation, as shall be deemed ex
pedient." In 1828 the Boston Beer Company was pray an adjudication upon the original petition. Such
incorporated “for the purpose of manufacturing malt intervening creditor or creditors need not constitute
liquors in all their varieties in the city of Boston," one-fourth in number and one-third in value of all the creditors. U. S. Dist. Ct., California. In re Sheffer,
and the act of incorporation which was passed by the 17 Nat. Baukr. Reg. 369.
Legislature of Massachusetts provided that said com
pany “for that purpose shall have all the powers and 2. Dismissal of proceedings. The dismissal of the
privileges and be subject to all the duties and requireproceedings, in invitum, is regulated by the provisions
ments contained in " the act of 1809 mentioned. In of the 41st section of the act (R. S., & 5026). Permis
1829 the act of 1809 was repealed with this provision: sion to withdraw will be withheld whenever the ob
“But this repeal shall not affect the existing rights of ject and policy of the act would otherwise be de
any person or the existing or future liabilities of any feated. Where a motion to dismiss has been denied
corporation, or any members of any corporation now and the petitioning creditors decline or omit to pro
established, until such corporation shall have adopted ceed, any other creditor to the required amount may
this act and complied with the provisions herein concontinue the proceeeding. Ib.
tained.' Held, that the repeal of the act of 1809 by the
act of 1829 was not a revocation or surrender by the State PARTNERSHIP.
of Massachusetts of the reserved power to repeal the
charters of corporations, and the passage of an act for1. When adjudication against void: dissolution.-An
bidding the manufacture or sale of malt liquors was adjudication against a firm, obtained by one member
not an act impairing an obligation of a contract with thereof on his voluntary petition, without giving no
the company mentioned and was not in violation of tice to his copartner, as required by rule 18, is void.
the Federal Constitution. Judgment of Superior Court A partnership dissolved by the death of one of its
of Massachusetts affirmed. Boston Beer Co., plaintiff members cannot be treated as still subsisting so as to
in error, v. Commonwealth of Massachusetts. Opinion be subject to the provisions of the bankrupt laws;
by Bradley, J. but, upon the surviving partner being adjudged bank
2. Police power would authorize act to forbid sale of rupt individually and as such surviving partner, his
malt liquor.-Held, also, that even if a right to manufacassignee is entitled to the possession of the firm as
ture malt liquor had been granted by charter without sets. U. S. Dist. Ct., California. In re Temple, 17
the reservation of a right of repeal, it was within the Nat. Bankr. Reg. 345.
police power of the State to require such manufacture 2. General assignment.-A general assignment made
to cease. Ib. in fraud of the Bankrupt Act may be set aside if pro
CRIMINAL LAW. ceedings are commenced within six months from its date. Ib.
Issue of notes for less than one dollar: statutory conSALE.
struction. The act of Congress of July 17, 1872, section
% 12 Stat. 592; Rev. Stat. 711, $ 3583), declares that “no Of goods : agreement as to title: resale : fraud: pre- | private corporation, banking association, firm or insumption.-Where a sale of goods is made on condi- dividual shall make, issue, circulate or pay out any tion that the title of the vendor is not to pass until note, check, memorandum, token or other obligation the purchase-money shall be paid, and the goods are for a less sum than one dollar intended to circulate as delivered to the vendee, held, that such a stipulation money, or to be received or used in lieu of lawful is valid; and, if all taint of fraud is disproved, a sub- money of United States," and provided a penalty sale of the goods by the vendee, before payment in for a violation of the act. Defendant was indicted full to the vendor, will not affect the title of the orig- for circulating an instrument reading as follows: inal vendor. The possession of goods does not of “The Bangor Furuace Company will pay the bearer itself carry along with it the property in them, nor of on demand fifty cents, in goods at their store in Bangor, itself identify the real owner of them. In Virginia Mich.” Held, that the instrument not being payable the possession of the fixtures and outfit of a tobacco iu lawful money the issue and circulation thereof way manufactory does not create the presumption that the not in violatiou of the act in question. Demurrer on title to them is in the person using them. U. S. Dist. certificate of division from U. S. Circ. Ct., W. D. Ct., E. D. Virginia. In re Linford, 17 Nat. Bankr. Michigan, sustained. United States v. Van Auken. Reg. 353.
Opiniou by Swayne, J.
COURT OF APPEALS ABSTRACT.. 1. Patent of, passes title free from control of govern
ACTION. ment.-A patent for any part of the public lands,
For money paid on an erroneous judgment: demand. when issued by the land department acting within the
- The surrogate in a proceeding before him in which scope of its hority, carries with it, when delivered
plaintiff and defendants were parties decided that the and accepted by the grantee, the legal title to the land,
defendants were entitled to certain commissions. While and with it passes all control of the executive depart
the decision was in full force plaintiff paid defendants ment of the government over the title. Decree of the commissions. Afterward the decision was Supreme Court of Illinois reversed. Moore, plaintiff versed as being erroneous. Held, that plaintiff was in error, v. Robbins. Opinion by Miller, J.
entitled to recover back the commissions paid, but a 2. Patent improperly granted can be canceled only by demand was necessary before 'bringing suit. Judgcourt.-If any lawful reason exists why the patent ment below affirmed. Scholey v. Halsey. Opinion by should be canceled or rescinded, the appropriate and Andrews, J. only remedy is by bill in chancery, in a court of com- [Decided February 12, 1878.7 petent jurisdiction, brought by the government, and there exists no power in the Secretary of the Interior
CORPORATION. or any other officer of the government to reconsider
1. Liability of stockholder: stockholder also creditor, the facts on which the patent issued, and to recall or
when not liable.-An action by a creditor of an incorrescind it, or to issue another for the same land. Ib.
porated company against a stockholder under section 3. Fraud or mistake ground for relief.-But when
10, Laws 1848, chapter 40, cannot be maintained when fraud or mistake or misconstruction of the law of the
the stockholder is also a creditor to an amount equal case exists, the United States, or any contestiug claim- to his stock. The debt due the stockholder is a deant for the land, may bave appropriate relief in a fense to this form of action in the nature of an equitcourt of equity. Ib.
able offset. Accordingly when defendant, who was 4. Pre-emption: pre-emptor must prove settlement.- a stockholder, had purchased notes against the Under the 14th section of the act of 1841 (5 Stat. 457), company and advanced moneys for its use
to an and the act of March 3, 1853 (10 Stat. 744), no pre-emp- amount in excess of his stock, held, that he was not tion was of any avail against a purchaser of the land liable in an action brought against him individually at the public land sales, unless the pre-emptor had by a creditor of the company. Judgment below afproved up his settlement and paid for the land before firmed. Mathes v. Neideg. Opinion by Church, C. J. the commencement of the public sales as ordered by [Decided January 15, 1878.] the President's proclamation. Ib.
CRIMINAL LAW. 5. Decision of Secretary of Interior: effect of .-The decisionof the Secretary of the Interior in favor of a pre
1. Practice: what writ of error reaches.-A writ of emption claimant under such circumstances against a
error reaches only errors in the record, and proceedpurchaser at the public sales, held to be erroneous as ings subsequent to judgment forming no part of the a misconception of the law, and the equitable title de- record are not brought before the court by it. Concreed to belong to the latter. Ib.
viction affirmed. People v. Carey, plaintiff in error. Opinion by Earl, J.
2. Assault with dangerous weapon: what sufficient STATUTE OF FRAUDS.
indictment: duplicity.-An indictment for an assault 1. Contract not to be performed within a year.-To
with a dangerous weapon, alleged that the instrument make a parol contract void within the statute of
was “sharp, dangerous; that the assault was made frauds, it must appear affirmatively that it was not to
with intent “to do bodily harm,” and that it was be performed within a year. If performance by de
“without justifiable or excusable cause." Held, that fendant could have been required by plaintiff within
the indictment was uuder Laws 1854, chapter 174, and a year the contract is valid. McPherson v. Cox, 96 U.
not under Laws 1866, chapter 716, and was not open to S. Judgment of U, S. (irc. Ct., N. D. Illinois, af
the charge of duplicity, as charging two distinct of
fenses, Ib. firmed. Walker, plaintiff in error, v. Johnson. Opin
3. Witness: prisoner in his own behalf: questions ion by Miller, J.
tending to impair credit.-When a prisoner offers him2. Subsequent verbal agreement.-When a contract
self as a witness in his own behalf he is subject to the for the delivery of stone exists only in parol, a subse
same rules upon cross-examination as any other witquent verbal agreement varying the manner of deliv
ness. He may be asked questions disclosing his past life ery is binding. Ib.
aud impairing his credibility; and questions which may 3. Trial: comments of judge on charge to jury.- tend to show that he has before been guilty of the The comments of the judge in his charge to the jury same crime as that for which he is on trial, are not as to the circumstances under which the defendant incompetent. Ib. might be entitled to damages against plaintiff, cannot [Decided February 5, 1878.] be a ground of error when there was no such issue, 4. Joinder of several distinct misdemeanors in one inand when the remarks could not have prejudiced the dictment.—The joinder of several distinct misdemeandefendant. Ib.
ors in the same indictment is not a cause for the re4. What instructions court not bound to give. - The versal of the judgment on a writ of error when the court is not bound at the request of counsel to give as sentence is single and is appropriate to either of the instructions philosophical remarks copied from text- counts upon which the conviction was had. Conse. books, however wise they may be in the abstract, or quently where a prisoner was convicted on an indicthowever bigh the source from which they come. Ib. ment charging him with an offense punishable by fine,
and also with one punishable by imprisonment, held, by express provision or from the nature of the parthat there was no legal objection to a sentence of fine ticular case. A State court has jurisdiction of an acand imprisonment. Conviction affirmed. Polinsky, tion brought by an assignee in bankruptcy upon a plaintiff in error, v. People. Opinion by Andrews, J. draft forming part of the assets of the bankrupt, and
5. Selling adulterated milk: city ordinance.-Au ordi- the authority of the bankrupt court is not necessary nance of the board of health of the city of New York to entitle the assignee to sue. Judgment below afprovides against bringing adulterated milk into the firmed. Kidder v. Horribin. Opinion by Andrews, J. city of New York for sale. Held, not to cover the same [Decided January 15, 1878.] ground as Laws 1862, chap. 467, sec. 1 (amended by Laws 1864, chap. 544), that statute relating only to sell
LEASE. ing or exposing impure, etc., milk for sale. Ib.
Rights of lessee dependent on performance of covenant 6. Authority of board of health of New York to pass on his part: estoppel and waiver.-By a lease, wherein ordinance as to adulterated milk.-Held, also, that Laws the lessee covenanted to pay taxes and do other acts, 1873, chap. 335, conferred upon the board of health of it was provided that at the end of the term the lessee New York power to make ordinances in relation to should be entitled to a renewal of the lease, or if that the adulteration of milk, in addition to the general should not be given the lessor should pay the value of law in relation to that subject, and an ordinance passed the building erected on the premises by lessee to be by them making certain acts misdemeanors held valid. determined by appraisers. The appraisers were to be Ib.
appointed before the termination of the lease, and in 7. Constitutional law: poroer of Legislature. – Held, default of one party appointing his appraiser, after a also, that it was within the power of the Legislature to certain notice, the other party might select his, who confer authority on the board of health to pass the could select the other one. Held, that in order to enordinance.
title the lessee to maintain an action against the lessor [Decided March 19, 1878. Reported below, 11 Hun, for the value of the building, after the termination of 390.]
the lease, it was necessary for him to perform his EVIDENCE.
covenants under the lease, and a failure to pay the
taxes for one year would preclude a recovery. Held, 1. When parol,admissible to explain writing.--Defend
also, that the appointment of an appraiser, by the ant sent to the cashier of a bank a letter reading thus:
lessor, after notice by the lessee, but in ignorance that “Please discount for Mr. Cummer to the extent of
the lessee had not performed his covenant, and the four thousand dollars. He will give you customers'
appraisal of the value of the building was not a waiver paper as collateral. You can also consider me respon
of the rights of lessor and would not estop him from sible to the bank for the same." Held, that parol evi
setting up as a defense in such action the failure of the dence of surrounding circumstances was admissible to
lessee to perform his covenants. Judgment below reshow whether this was intended to be a single credit
versed. People's Bank of New York v. Mitchell. Opinfor $4,000, or a continuing guaranty to that extent.
ion by Miller, J. Judgment below affirmed. White's Bank of Buffalo v.
[Decided April 23, 1878.] Myles. Opinion by Earl, J. 2. Construction of instrument of guaranty: continuing
MUNICIPAL CORPORATION. guaranty.-In this case Cummer was carrying on a
1. Construction of charter of Cohoes: declaration of continuous business in Buffalo, and doing his banking result essential to complete election.—By section 9 of the business with plaintiff. Defendant was his father-in
charter of Cohoes, it is provided that the inspectors of law, residing in Canada, and was desirous to aid him.
election of each ward shall, at each city election, can Cummer had already a large line of discount, but
vass the votes given and make a statement determinneeded more to enable him to continue business. Held, ing and certifying the number of votes cast for each that under the circumstances the letter was intended
person for city and ward officers, and for school comas a continuing guaranty. Ib.
missioners, and that such statement shall be delivered [Decided April 16, 1878.]
to the city clerk. By section 10 the city clerk is directed
to deliver the statement to the common council, which FIRE INSURANCE.
shall, at the next meeting, which “ shall be on the A fire insurance policy provided that it should be
Tuesday next after the annual election," upon come void “if without the written consent of the
such statements and certificates, declare and decompany first had and obtained" the insured property termine what persons have been elected to "the “shall be sold or conveyed, or the interest of the
respective offices.” It is also provided that those havparties therein be changed in any manner, whether by
ing the greatest number of votes for the offices to be act of the parties or by operation of law, or the prop
filled by the electors of the several election districts erty shall become incumbered," etc. Held, that the
or wards “shall be declared duly elected.” Held, that change of title caused by the death fof the party in
the declaration and certificate of the common council sured would avoid the policy. (Wyman v. Wyman, 26
was indispensable to the election and qualification of N. Y. 253; Burbank v. Rockingham Ins. Co., 24 N. H.
ward as well as city officers, and that officers who had 550, distinguished.) Order below affirmed. Sherwood
received the greatest number of votes could not act V. Agricultural Ins. Co. Opinion by Rapallo, J.
officially until such declaration. Judgment below re[Decided May 21, 1878.]
versed. People. ex rel. Corliss v. North. Opinion by
2. Provision applies to election of aldermen.-lleld, State courts have, of action by assignee in bankruptcy. also, that the provisions of section 10 are applicable to - State courts have concurrent jurisdiction with the the office of alderman, and that under a provision in Federal courts in cases arising under the Constitution, the charter that the old officers should hold over laws or treaties of the United States, unless excluded until their successors were qualified, acts by a common