Gambar halaman
PDF
ePub

If we assume it to be true, as a general proposition, that the policy speaks from the date of its issue, and that the obligation of the applicant to make a full disclosure continues down to the completion of the contract, and that the occurrence of a material change before the contract is consummated must be communicated to the company, we do not advance essentially in the case before us. The question recurs, when was the contract of Dr. Day consummated? If on the 14th of October, when the renewal-receipt was delivered, as the company contends, then the rule mentioned bars the plaintiff's right to recover. If, as the plaintiff contends, the contract by the intention and understanding of the parties relates to the first of October, when the premium was paid by the applicant and the certificates of health presented and transmitted, or to a point of time within a few days thereafter, within which the company ought to have examined and to have accepted a risk in all respects suitable to be accepted within its own rules, then the general rule quoted is not applicable. The case is governed by different principles. It is not necessary, therefore, to question the principle assumed in the authority quoted, or to examine the cases cited to sustain it.

We are of the opinion that the exceptions to the charge of the judge, upon the theory that the representations by Dr. Day were made on the 14th day of October, or that concealment was then practiced by him, on the ground that the previous representations, necessarily and as a matter of law, were continuous, and that the contract was consummated on that day, cannot be sustained. It was a question proper under all the circumstances for the consideration of the jury. If they had found for the plaintiff we are of the opinion that the verdict would not have been vacated as being without or against the evidence.

In many English companies a formal acceptance of the proposal for insurance is issued. In some companies this acceptance is unconditional, so that the premium be paid within the month, the letter of acceptance running to the effeet that the proposal has been accepted, and that a receipt is ready at the office for the premium, upon the payment of which the assurance will commence, but that if the same be not paid within thirty days a reappearance and fresh certificate will be required. In other companies the acceptance is qualified by the condition, not only that the insurance shall not commence till the payment of the premium, but that no material change shall have occurred prior thereto. Bunyon, p. 58, cited Bliss, § 99.

The practice is not uniform, and there is nothing remarkable in allowing a certificate of health to stand good for thirty days, no reappearance or examination for that interval being required.

Among the cases relating to this subject the following may be referred to as showing the effect of the contract by relation, and that the consummation of the contract does not necessarily depend upon the delivery of the policy.

In Lightbody v. N. Am. Ins. Co., 23 Wend. 24, it was held that a policy bearing date on the day the premium is paid takes effect by relation from that day, although the policy be not delivered for several days afterward. In this case the buildings were burned on the day after the premium was paid and before the policy was delivered.

In Perkins v. Wash. Ins. Co., 4 Cow. 465, the rule was applied in a case where the agent was authorized

to make insurances, "provided the office shall recognize the rate of premium and be otherwise satisfied with the risk," it was held that the company was bound to issue a policy where the insurance was a proper one and the premium was paid or tendered. although before the premium was received at the home office the property was consumed by fire.

In Chase v. Hamilton Ins. Co., 22 Barb. 527, the agent forwarded a proposition for insurance, which was altered by the company, and the alteration communicated to and accepted by the applicant, and the premium paid to the agent. Held, that the company was bound to issue its policy and was liable for the loss.

In Insurance Co. v. Webster, 6 Wall. 129, the party having received his policy, it was held that he was not affected by afterward signing a memorandum that the insurance was to "take effect when approved by E. D. P., general agent." See also, Cooper v. Pacific M. L. Ins. Co., 3 Big. Ins. R. 656; 7 Nev. 616; Carpenter v. M. S. Ins. Co., 4 Sandf. Ch. 408; Am. Horse Ins. Co. v. Patterson, 28 Ind. 17; City of Davenport v. Peoria M. and F., 17 Iowa, 276; Le Farom v. Insurance Co., 2 Big. Ins. R. 158.

Second objection.

At the close of his charge the judge instructed the jury as follows: "That the plaintiff is not responsible for or in any way affected by any of the statements in Dr. White's affidavit, unless the jury find that before and at the time of filing it with the agent of the company she had actual knowledge of its contents and adopted and used them as her own declarations. That affidavit is her declaration or no, as she knew and was advised of it and procured and approved it." To which instruction the counsel for the insurance company then and there excepted.

In establishing her case at the trial the plaintiff was bound to prove that notice of the death of her husband, Dr. Day, had been given to the company, and that a demand of payment of the amount claimed had been made. For that purpose only she offered in evidence the proofs of loss which had been furnished to the company, except the affidavit of Dr. White, forming a part of the same, which she did not offer in evidence. Those proofs contained the sworn statement of Mrs. Day herself, the sworn statement of Dr. Isaac White, certificates of the clergyman and undertaker, and proof of identity by J. F. Patterson.

These affidavits were all on one paper, and the court required that the proofs of loss should be put in 'as an eutirety; that is, that all the papers containing the preliminary proofs should be put in evidence, and the same were thereupon put in evidence by the plaintiff, including the affidavit of Dr. White. In Dr. White's affidavit thus introduced occurred the following questions and answers: "How long have you known the deceased? I have known Dr. R. H. B. Day seventeen years. How long was deceased sick? About five months. Date of your first visit? November 28, 1870. Date of your last? January 22, 1871. Of what disease did he die? Pulmonary consumption." It appeared further that Dr. White was not a resident of Washington, but left that city immediately after making the affidavit mentioned, on the 28th of January, 1871.

Mrs. Day testified that Dr. White had not seen her husband at any time between September, 1869, and the latter part of November, 1870.

The struggle as to Dr. White's affidavit and the ruling upon it are quite immaterial. He stated in answer to one of the questions that Dr. Day had been ill about

five months, and as he died on the 22d of January, 1871, this would carry his illness back to the 22d of August, 1870, of course including all the month of October of that year. The insurance company apparently sought the benefit of this evidence on the contest in regard to Day's health.

It is, however, manifest that White's statement was not one of personal knowledge, but was upon rumor, or made without sufficient reflection. This is evident both from the testimony of Mrs. Day, which is entirely unimpeached and uncontradicted, that Dr. White did not see her husband during all of the year 1870 until the latter part of November. Upon this subject she could not well be in error. It was equally evident from the statement of White himself, that this first visit to Day was on the 28th of November, 1870.

Day's bodily health on the first day of October, 1870, was satisfactory to the company, and the attempt was to show an unfavorable alteration between that date and the 14th of the same month. But White had not seen him during those fourteen days, nor for months before nor for more than six weeks afterward.

Whether the presentation of the affidavit of White by Mrs. Day made its contents evidence; whether she knew its contents or not; whether she did or did not adopt or procure it, was not of the slightest consequence. The paper contained nothing that was legal evidence upon the point in issue, and a verdict founded upon it could not have been sustained. The disposition of the subject by the judge was one that could not possibly work legal injury to the insurance company. There was, therefore, no error. Starbird v. Barrons. 43 N. Y. 200; Pepin v. Lachenmeyer, 45 id. 27; People v. Brandreth, 36 id. 191; Porter v. Ruckman, 38 id. 211; Corning v. Troy Iron and Nail Works, 44 id. 577.

The effect of facts set forth in preliminary proof as admissions is discussed in Insurance Company v. Newton, 22 Wall. 32. Where an agent of the insurance company stated that the proofs were sufficient to show the death of the insured, but that they showed that he committed suicide, it was held that the whole admission must be taken together. Where the party or ber agent stated in the preliminary proofs that the deceased had committed suicide, furnishing the verdict of a coroner's jury to that effect, and where the narration of the manner of the death of the deceased was so interwoven with the death of the deceased that the two things were inseparable, it was held that the whole was competent to go before the jury.

We see no occasion to question the positions of that

case.

Upon the whole case we are all of the opinion that the judgment must be affirmed.

UNITED STATES SUPREME COURT ABSTRACT.

ACKNOWLEDGMENT.

**

1. What is substantial compliance with statutes of Tennessee relating to.- By the statutes of Tennessee deeds for the conveyance of lands are to be" acknowledged by the maker or proved by two subscribing witnesses" and the prescribed formula of acknowledgment is Personally appeared before me, etc., the within named bargainer with whom I am personally acquainted and who acknowledged that he executed the within instrument, etc." Held, that an acknowledgment wherein it was certified that the individual executing it was "* Personally known to the acknowl

""

edging officer was a compliance with the statute and the acknowledgment was valid. Decree of Circuit Court, W. D. Tennessee, affirmed. Kelly et al., appeltants, v. Calhoun et al. Opinion by Swayne, J.

2. Deed from corporation-There is no statutory provision in Tennessee as to the execution or acknowledgment of deeds by corporations. In such cases the officer affixing the seal is the party executing the deed within the meaning of the statutes requiring deeds to be acknowledged by the grantor. (Lovett v. Steam Mill Associatian, 6 Paige, 69). Ib.

ADMIRALTY LAW.

Liability of shipowners in cases of collision: limit of liability of stipulators. - Shipowners are in no case liable for any loss, damage or injury occasioned by collision beyond the amount of their interest in the colliding ship and her freight pending, except for costs and interest by the way of damages in case of default of payment and suit to recover the amount. Nor are the stipulators, either for cost or value, eve. liable for any default of their principal beyond the amount specified in the stipulation which they gave, except for costs and interest by the way of damages in case of their own default to make payment pursuant to the terms of the stipulation. (9 Stat. at Large, 635; The Cordes, 21 How. 26; The Ann Caroline, 2 Wall. 548; The Union, 4 Blatch. 92; The Palmyra, 12 Wheat. 10; Houseman v. North Carotina, 15 Pet. 51; The Hope, 1 W. Rob. 155; The John Dunn, 1 id. 160; The Volant, 1 id. 386; The Dundee, 2 Hagg. 143; Ex parte Rayne, 1 Gale & Davison R. 377; Gall v. Laurie, 5 Barn. & Cress. 163; Ives v. Bank, 12 How. 165; The Diana, 3 Wheat. 58; Sneed v. Wister, 8 id. 696). Decree of Circuit Court S. D. New York, affirmed. Sparrow et al., uppellants, v. Avery et al. Opinion by Clifford, J.

BANK CHECK.

Check properly stamped and paid not object of taxation under revenue law: collector entering place where kept. Under section 3,177 of the United States Revised Statutes, authority is given to any collector, deputy collector, or inspector of internal revenue to enter, in the day time, any building or place within his district, where any articles or objects subject to such taxation are made, produced, or kept, so far as it may be necessary for the purpose of examining such objects or articles, and the provision is that any owner of such building or place, or any person having the agency or superintendence of the same, who refuses to admit such officer or suffer him to examine such articles or objects shall for every such refusal forfeit five hundred dollars. Held, that under this provision paid bank checks, which were duly and sufficiently stamped at the time they were made, signed, and issued, are not articles or objects subject to taxation, and an officer of a bank where such checks are may lawfully refuse to suffer the collector to examine such checks. (Cases, etc., cited, United States v. Cook, 17 Wall. 74; 1 Bishop Cr. Pro. [2d ed.] sec. 81; Arch. Cr. Pl. & Ev. [18th ed.] 54 Rev. Stat. sec. 3,418; 18 Stat. at Large, 310; The Mary Ann, 8 Wheat, 389; The Hoppet, 7 Cr. 393; 2 Pars. on Ship and Admr. 386; The Caroline, 7 Cr. 500; The Anne, 7 id. 571; Conkl. Treat. [5th ed.] 546; 2 Colby Cr. Law, 114; People v. Wilbur, 4 Park. C. C. 21; Com. v. Cook, 18 B. Mour. 149; Steel v. Smith, 1 Barn, & Ald. 99; Conkl. Treat. [5th ed.] 548.) Judgment of Circuit Court, Minnesota, affirmed. United States, plaintiff in error, v. Mann. Opinion by Clifford, J.

[ocr errors]

CONTRACT.

Construction of contract for surrender and re-issue of railroad bonds. There being matters of dispute between S. and D. and A. Railroad Company, in which certain bonds of the company were involved, S. proposed in writing to surrender all of such bonds and procure a release from D., if the company would in exchange therefor execute and deliver to him a specified number and amount of new bonds secured by mortgage on the railroad. A portion of the old bonds were handed in and canceled and new ones issued. With reference to the other old bonds there was a dispute between S. and third parties. Held, that the company was not bound to make the exchange with reference to the remaining bonds until S. obtained control of them and surrendered them. Decree of Circuit Court, Kansas, reversed. Union Pacific R. R. Co., appellant, v. Stewart. Opinion by Wait, C. J.

FORFEITURE.

1. Of leased land upon which a distillery stands: acts of distiller bind owner of land. The unlawful acts of the distiller bind the owner of the property, in respect to the management of the same, as much as if they were committed by the owner himself. Power to that effect the law vests in him by virtue of his lease, and if he abuses his trust it is a matter to be settled between him and his lessor, but the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner. (The Vrouw Judith, 1 C. Rob. 151; Spring Valley Distillery, 11 Blatch. 265; The Reindeer, 2 Cliff. 68; U. S. v. Bags of Coffee, 8 Cr. 464; The Ship Crockery, Parker R. 230.) Judgment of Circuit Court, Iowa, affirmed. Dobbins, plaintiff in error, v. United States. Opinion by Clifford, J.

2. Confessions of lessee of distillery admissible against owner in proceedings for forfeiture. Accordingly admissions by the lessee of property upon which a distillery is situated, which was proceeded against under the revenue act for the purpose of forfeiture, held, admissible against the owner of such property in such proceeding. Ib.

MUNICIPAL CORPORATION.

1. Construction of guaranty: contract with private corporation. Where an ordinance of a city authorizing a contract with a gas company and the issue to it of bonds of the city, provided that the company should "guaratee the said bonds and assume the payment of the principal thereof at maturity," held, 1st, that the guaranty embraced both the principal and interest of the bonds; and 2d, that the ordinance contemplated two undertakings by the company-one to the bondholder and one to the city. The guaranty was to be for the security of the boudholder; it was to be an undertaking to answer for the city's liability. The other undertaking was to be for the security of the city by placing the company under obligation to provide for the payment of the principal of the bonds on their maturity, an obligation which otherwise would

3. Legislative right to compel payment by city of equitable claims. It is competent for the legislature to impose upon a city the payment of claims, just in themselves, for which an equivalent has been received, but which from some irregularity or omission in the proceedings by which they were created cannot be enforced at law. (Blanding v. Burr, 13 Cal. 343; The Town of Guilford v. Supervisors of Chenango County, 16 Barb. 615, Same case in Court of Appeals, 3 Kern. 143.) Ib.

4. Retroactive law. A law requiring a municipal corporation to pay such a claim is not within the constitutional provision inhibiting the passage of a retroactive law. Ib.

STATUTE OF FRAUDS.

1. Necessary contents of note or memorandum. — The note or memorandum required by the statute of frauds must furnish evidence of a complete and practical agreement, and unless the essential terms of the sale can be ascertained from the writing itself or by reference in it to something else the writing is not a compliance with the statute, and if the agreement be thus defective it cannot be supplied by parol proof. Accordingly receipts given for the payment of money on an alleged purchase of real estate not containing any thing to show what real estate was the subject of purchase, held, not sufficient under the statute. (Baptist Church v. Bigelow, 16 Wend. 31; Morton v. Dean, 13 Metc. 385; 2 Kent's Com. [12th ed.]511; Norris v. Lain, 16 Johus. 151; Dung v. Perkins, 52 N. Y. 494; Baltzen v. Nicolay, 53 id. 467; Wright v. Weeks, 25 id. 153; Parkhurst v. Van Cortland, 1 Johns. Ch. 273; 14 id. 15; Barry v. Coombs, 1 Pet. 648; Clark v. Burnham, 2 Story C. C.; Story on Sales [4th ed.] sec. 257). Decree of Supreme Court, D. C., reversed. Williams et al., appellants, v. Morris, executor. Opinion by Clifford, J.

2. Part performance: what party claiming benefit of must show. Where the attempt is to take the case out of the statute upon the ground of part performance, the party making the attempt must show by clear and satisfactory proof the existence of the contract as laid in his pleading, and the act of part performance must be of the identical contract which he has in that manner set up and alleged. It is not enough that the act of part performance is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill or answer. (Phillips v. Thompson, 1 Johns. Ch. 149; Browne on Fraud, sec. 452; Jones v. Peterham, 8 Serg. & R. 543; Morphett v. Jones, 1 Swanst. 172; Ex parte Hooper, 19 Ves. 477; Frame v. Dawson, 14 id. 386; 7 id. 341; 3 Parsons on Cont. [6th ed.] 60; Chitty on Cont. [10th ed.] 66 and 278; 1 Story's Eq. [9th ed.] sec. 761). Ib.

COURT OF APPEALS ABSTRACT.

ARREST AND BAIL.

Cause of action not entitling to arrest included in com

not have existed. Judgment of Circuit Court, Louisi-plaint takes away right to arrest.— If a plaintiff unites a ana, affirmed. Jefferson City Gas-light Co. v. Clark et al. Opinion by Field, J.

2. What amounts to substantial compliance with contract. The indorsement by the president of the company on the bonds guaranteeing "the payment of the principal and interest" thereof, was a substantia compliance with the provision of the ordinance and contract as to the guaranty. Ib.

bailable and a non-bailable cause of action in the same
complaint he waives his right to bail in both, and an
order of arrest cannot be sustained, if, upon any one
of the causes included in the action, the defendant is
not liable to arrest. (Smith v. Knapp, 30 N. Y. 581;
McGovern v. Payne, 32 Barb. 83.) Order below revers-
ed. Madge v. Puig. Opinion by Allen, J.
[Decided Dec. 11, 1877.]

ASSESSMENT.

Statutes relating to must be strictly followed: official outh in form prescribed must be taken by officials.—In statutory proceedings affecting the property of a citizen the statute must be strictly followed and any departure in substance from the formula prescribed by law, vitiates the proceedings. Accordingly where a statute required commissioners to make a village improvement and assess the cost upon property to be benefited to make oath before entering upon their duties "faithfully and fairly to discharge the duties," etc.; an oath by each one to perform the duties "to the best of his ability," held, not a compliance with the statute and the acts of the commissioners invalid. ( Gilbert v. Columbia Ins. Co., 3 Johus. Cas. 107; Rex v. Cooke, 1 Cowp. 76; Adams v. S. & W. R. R Co., 10 N. Y. 328; Doughty v. Hope, 3 Den. 595; Seymour v. Judd, 2 N. Y. 464; Sharpe v. Spier, 4 Hill, 81; Thatcher v. Powell, 6 Wheat. 119; Thompson v. White, 4 S. & R. 135; In re Cambria Street, 75 Penn. St. 357; People v. Connor, 46 Barb. 333.) Judgment below reversed. Morris v. Village of Portchester. Opinion by Allen,

J.

[Decided Nov. 27, 1877.]

BILLS OF LADING.

When fraudulent bills by general owner af cargo give no title: estoppel: fraudulent delivery by owner wrongfully in possession. - Fraudulent bills of lading of wheat purporting to have been shipped by N. at Buffalo by certain canal-boats and consigned to defendants at New York, were made and transferred to defendants, and defendants paid certain drafts drawn by N. against the supposed cargoes. At the time the wheat described was on board a vessel in transit between Milwaukee and Buffalo, under a bill of lading which had been transferred to plaintiff as security for the payment of a note of N., discounted to enable him to pay a draft drawn on plaintiff for the purchase price of the wheat. Subsequently, without authority of plaintiff, or any act on its part enabling him to do so, N. fraudulently shipped the wheat by the canalboats mentioned, and delivered it to defendants, they not parting with any value at the time on the faith of such delivery. Held, that at the time of the making of the false bills of lading plaintiff was the pledgee and special owner of the wheat in possession; that N. had no authority to transfer title to the same; that N.'s unauthorized interference with the wheat and delivery to defendants did not relate back so as to make valid the transfer by the false bills; that plaintiff was not estopped from asserting title to the wheat by the interference of N., and that after demand of the wheat and refusal to redeliver it was entitled to maintain an action for the same against defendants. Judgment below affirmed. Marine Bank of Buffalo v. Fiske. Opinion by Allen, J. [Decided Dec. 4, 1877.]

CANALS.

Appropriation of soil for repair of. - Defendants contracted with the State to build a new dam in place of an old one, and a short distance below, across the Mohawk. Thereafter the State took proceedings to appropriate an acre of plaintiff's ground near the dam, and gravel was taken from the acre to tighten the old dam, so that it could be used for canal navigation while the new dam was being built. Held, that the appropriation was not in violation of the provision of the statute authorizing the canal commissioner to enter

upon lands for the purpose of taking material for repairs when the navigation of the canal is endangered (1 R. S. 221), and that plaintiff had no claim against defendants for that reason for the gravel taken from such land. Judgment below reversed. Ten Broek v. Sherill. Opinion per Curiam. [Decided Nov. 27, 1877.]

EVIDENCE.

1. When judgment admissible in collateral action: to show status of witness. In an action in which the former husband of a witness was plaintiff, for the purpose of showing the status of the divorced wife and her competency as a witness, the judgment of divorce was introduced in evidence by plaintiff. Held, that it was admissible for the purpose mentioned, and could not be impeached collaterally, and that objections (1), that it was improper and immaterial, and (2), that the record showed upon its face that the divorce was granted upon improper and illegal testimony, would not lie. Judgment below affirmed. Wottrick v. Friedman. Opinion by Allen J.

2. Questions designed to show bias of witness. — For the purpose of showing a hostile relation between a witness for plaintiff and defendant, defendant asked witness if a suit for crim. con. brought by witness against defendant was not pending, to which he answered there was such a suit. Held, that the question was competent and a question by plaintiff, asking if witness had not a had suit several years ago against defendant for crim. con. which was settled, it not being shown that there were two suits, was also competent. Ib.

[Decided Nov. 20, 1877.]

INJUNCTION.

Liability of plaintiff: undertaking: terms of under taking fix liability thereunder.-Without some security before the granting of an injunction or without some order of the court or judge requiring some act on the part of the plaintiff which is equivalent to giving security such as a deposit of money in court, the defendant has no remedy for any damages which he may sustain from the issuing of the injunction. And when an undertaking is executed by sureties defendant has no greater or other reliance than is afforded by the terms of that instrument. Accordingly, where a bond was given under old code, § 222, the condition of which was that the plaintiff would pay to the defendant such damages, not exceeding a specified amount as the defendant might sustain by reason of the injunction, "if the court shall finally decide that the plaintiff was not entitled thereto," and after the suit had progressed and the injunction had been modified by the court, the parties of their own free will made a settlement and the suit was, in pursuance thereof, discontinued, held, that the condition of the undertaking was not broken by plaintiff's failing to pay damages, and an action could not be maintained thereon. Orders below reversed. Palmer v. Foley. Opinion by Folger, J. [Decided Nov. 13, 1877. ]

1

MUNICIPAL CORPORATION.

1. Charter of Saratoga Springs: mandamus: issue of corporate bonds: warrant to pay moneys. - Under the provisions of the charter of the village of Saratoga Springs moneys cannot be paid from the treasury save on the warrant of the trustees. By Laws 1875, chap. 517, the trustees of the village are authorized to raise money by the issue of bonds for the payment of the

floating indebtedness of the village, and from the moneys so raised claims are to be paid on the warrant of the auditors. Held, in order to entitle one holding a claim against the village, which, if valid, would be included in the floating indebtedness, to compel by mandamus the receiver of taxes or financial officer of the village to take steps in order to pay his claim, he must procure a warrant from the auditors directing such payment. An authenticated copy of the proceedings of the village auditors, showing the audit of plaintiff's claim, is not a warrant, and would not be sufficient. Order below affirmed. People ex rel. Cooke v. Wood. Opinion by Folger, J.

2. Title a part of legislative act in this State. — In this State, especially in local and private acts, the title is part of the act. Ib.

[Decided Dec. 4, 1877.]

NOTES OF RECENT DECISIONS.

Carrier of passenger: liability of steamboat company for loss of baggage. — A steamboat company is liable for the value of passenger's baggage destroyed by a fire on the steamer, unless it be clearly proved that the fire occurred from some cause over which the company had no control. Court of Q. B., Quebec, Dec. 14, 1877. Canadian Nav. Co. v. McConkey (Mont. L. News.)

Fire insurance: omission to state previous insurance: verbal notice to agent. The plaintiff, when making application for insurance, mentioned to the defendants' agent that there was a previous insurance in the Gore Mutual, but could not remember the amount which was on the property insured with the defendants. The policy contained a proviso that in case the insured should have already any other insurance against loss by fire on the property, and not notified to the company and mentioned in or indorsed upon the policy, the insurance should be void. The policy contained no mention of the insurance in the Gore Mutual. Held, that the plaintiff could not recover. Court of Error and Appeal, Ontario, Dec. 17, 1877. Billington v. Provincial Ins. Co. (Mont. L. News).

Life tenancy: open mines: waste: right of life tenant to pursue, underground, veins of open mines restricted.— A. died, seized of two tracts of land, separated by an intervening tract. Upon one of them a coal mine had been opened in A.'s lifetime. A.'s widow who was a tenant for life under A.'s will, leased both the tracts to the Westmoreland Coal Company, who owned the intervening tract. The coal company pursued underground a vein of coal from the open miue on one tract, through their intervening tract, and within the boundary of the other tract. Held, that the taking of coal from the second tract constituted waste. Sup. Ct. Pennsylvania, Nov. 5, 1877. Westmoreland Coal Company's Appeal (4 W. N. Cas. 533).

Maritime law: life salvage; liability of owners of lost ship to contribute.-Where lives and cargo have been salved from a ship, but the ship has been totally lost, the owners of the cargo are liable to pay salvage in respect of the lives, and the owners of the lost ship are not liable to contribute to such payment. Life salvage awards can only be made out of the resalved, and not against owners of a ship personally. Eng. High Ct. of Justice, P. B. & A. Div., Nov. 27, 1877. The Specie ex Sarpedon (37 L. J. Rep. N. S., 505).

Municipal corporation: grading and paving: after contract is properly let the city has no right to alter it by an ordinance: no recovery can be had by a con

tractor on a quantum meruit.- Where the law requires that all municipal work of a certain character shall be performed under contract let to the lowest and best bidder after due advertisement, no recovery can be had for work done in any other manner; and neither the municipality nor its subordinate officers can make a binding contract for such work except in compliance with the requirements of the law. Sup. Ct. Pennsylvania, Nov. 12, 1877. Addis v. City of Pittsburgh (4 W. N. Cas. 529).

|

Negligence: carrier of passengers: person invited on horse car by driver.- Where the driver of a street car invites a boy to get on the car and give him a glass of water, and then directs him to get off while the car is in motion, and refuses to stop the car when requested, but, on the contrary, increases its speed, held, that the company was liable for an injury to the boy in getting off the car. In order to render the company liable for injuries caused by the acts of its servants it is not necessary that the relation of passenger aud carrier should exist. N. Y. Sup. Ct. Gen. Term, 2d Dept., Dec., 1877. Day v. Brooklyn R. R. Co. (N. Y. Week. Digest).

NEW BOOKS AND NEW EDITIONS.

THE NEW RULES OF COURT.

Rules of all the Courts of Record of the State of Now York, with Notes, References and an Index. by Marcus T. Hun, Reporter of the Supreme Court. New York: Banks & Brothers, 1877.

General Rules of Practice of the Supreme Court, with Rules of the Court of Appeals and other Courts of Record of the State of New York, with Annotations and an Index. New York: Baker, Voorhis & Company, 1878.

THES

HESE books purport to cover the same ground and may therefore be conveniently noticed together. Each gives the rules of the various courts in force on the first of January, with notes referring to decisions and kindred statutes. The first is the more elaborately, the second the more accurately, annotated. Indeed we are surprised at Mr. Hun's inattention to, or ignorance of, some matters that should be within the cognizance of every lawyer, and more especially of every one who undertakes to prepare such a work as that to which he has set his hand. Here are a few of the errors that a casual reading has discovered: On page 7 he gives in full chapter 322, Laws 1874, which was expressly repealed by chapter 417, Laws 1877, but he nowhere gives, so far as we observe, § 191 of the Code of Civil Procedure, which takes the place of ch. 322. Of the 18 statutes cited as in force on page 29, all but two were repealed by the same act. The statutes as to law schools given on page 39 were repealed by the same act and were superseded by § 58 of the new code, which Mr. Hun forgets to note. On page 57 he announces that "the Supreme Court is authorized by the Revised Statutes (2 R. S. 199, §§ 21 to 28), to compel the discovery of books, etc.," and that these provisions were not repealed by "section 388 of the Code "; but he neglects to say that they were repealed expressly by chapter 417 of last year, and that their place is taken by $$ 803 to 809 of the new Code. Mr. Hun has also omitted to notice a number of recent cases pertinent to the matter in hand, but the errors of commission already cited will suffice, we believe, to justify the assertion that he has not done his work well.

On the other hand the book bearing the imprint of Baker, Voorhis & Co., and which we understand was annotated under the supervision of Mr. Bliss, seems to

« SebelumnyaLanjutkan »