« SebelumnyaLanjutkan »
on a fair construction, indicates the purpose of the observed that the statement of the doctrine we have Legislature to legislate on the subjects contained in the made extends it no further than to cases prosecuted in body of the act, so that making every reasonable in- the usual manner where defendants suffer no special tendment in favor of the legislative act, it may reason- damages or grievance other than is induced by all deably be said that the object of the law is expressed in fendants in suits brought upon like causes of action. its title. Town of Fiskill v. Fishkill, 22 Barb. 634; if the bringing of the action operates to disturb the Contieri v. Mayor of New Brunswick, 15 Vroom, 58. peace, to impose care and expense, or even to cast dis(3) In an act entitled "An act to provide for licensing credit and suspicion upon the defendant, the same reboats, hacks and other vehicles by incorporated camp- sults follow all actions of like character, whether they meeting associations or seaside resorts, and for the be meritorious, or prosecuted maliciously and without better government of the same," the Legislature can- probable cause. They are incidents of litigation. But not include provisions authorizing the licensing, regu- if an action is so prosecuted as to entail unusual bardIsting or probibiting of the manufacture or sale of sbip upon the defendant, and subject him to special liquor, such a subject not being within the legislative loss of property or of reputation, he ought to be compurpose as expressed in the title of the act. Grover v. pensated. So if his property be seized, or if he be Tristees of Ocean Grove Camp-Meeting Asso. Opinion subjected to arrest by an action maliciously prosecuted, by Depue, J.
the law secures to him a remedy. In the case at bar
the pleading and evidence show no such special damIOWA SUPREME COURT ABSTRACT.* ages. No action could be prosecuted to recover money
fraudulently obtained, in which the defendant would DEED – IN EFFECT, MORTGAGE — WAIVER.— Where
not suffer the very things for which plaintiff in this a deed of land, absolute on its face, was given by D. to
case seeks compensation in damages. Wetmore v. M., and some months afterward, dispntes having arisen
Mellinger. Opinion by Beck, J. (This is in harmony between them, an instrument of settlement and ad
with Muldoon v. Rickey (Penn.), 29 Alb. L. J. 457.
ED.] justment of all controversies was executed by them,
[Decided April 9, 1884.] in which this deed was mentioned, held, that by the instrument of settlement D. waived and abandoned PARTNERSHIP -- INFERRED - STATUTE OF FRAUDS the right to insist that the deed was a mortgage. Bald- LIMITATION RUNS FROM DISSOLUTION.-(1) Where parnoin v. Davis. Opinion by Seevers, J.
ties have contracted to engage in the venture of buy[Decided April 10, 1884. ]
ing lands, which are to be held in trust for both of STATUTE OF FRAUDS-TELEGRAM-PAROL EVIDENCE.
them, and they are to have equal interests and shares - Where ir an action for an alleged breach of a written
in the common speculation, the fact that there is no con tract of sale made by telegraph, the telegrams fail
agreement that both shall be respectively liable for the to show what the property contracted for is, what the
losses does not prevent the contract from constituting price to be paid for it is, aud to whom it is sold, they are
a partnership. The liability may be inferred from the insufficient to establish a written contract, and to take
intent of the parties or tbeir acts, or from the circum
stances that attend the contract. Parsons' Partner the case out of the statute of frauds; por can verbal testimony be admitted to supply the defects or omis
ship, 57, 60; Miller v. Hughes, 1 A. K. Marsh. 181. (2) sions therein. Watt v. Wisconsin Cranberry Co. Opin
A contract to enter into a partnership, for the purpose
of speculating in lands, is not within the statute of ion by Adams, J.
frauds, and need not be in writing. This question has [Decided April 10, 1884. ]
been much discussed by the courts, and it is not to be MALICIOUS PROSECUTION-WHEN ACTION DOES NOT denied that there are adjudged cases which hold that LIE FOR BRINGING CIVIL SUIT.-We think the doctrine is such a contract is within the statute of frauds. See well established by the great preponderance of author- Smith v. Burnham, 3 Sumn. 435. On the other hand, ity that no action will lie for the institution and prose- there are many cases which hold that a parol contract cution of a civil action with malice and without prob
of partnership is not within the statute. Dale v. Hamable cause, when there has been no arrest of the per
ilton, 5 Hare, 369; Essex v. Essex, 20 Beav. 449; Bunson or seizure of the property of defendant, and no
nel v. Taintor, 4 Conn. 273; Chester v. Dickerson, 54
N. Y. 1; Holmes v. McCrary, 51 Ind. 358. (3) The reresult in all suits prosecuted to recover for like causes
lation of the parties being a partnership, the statute of of action. See 1 Am. Lead. Cas. 218, note to Munus v.
limitations does not begin to run until the dissolution Dupont, and cases there cited; Mey er v. Walter, 64
thereof, or until a sufficient time has elapsed after a Penn St. 289; Kramer v. Stock, 10 Watts, 115; Bitz
demand for an accounting and settlement. Richards F. Meyer, 11 Vroom, 252; S. C., 29 Am. Rep. 233; Eb
v. Grinnell. Opinion by Rothrock, C. J. erly v. Rupp, 90 Penn. St. 259: Gorton v. Brown, 27
[Decided March 9, 1884.] III. 489; Woodmansie v. Logan, 2 N. J. L. 93 (1 ANIMALS – TRESPASSING ON RAILROAD-COMPANY Pen.); Parker's Adm’rs v. Frambes, id. 156; NOT LIABLE FOR INJURY.-- Where animals, which are alPotts v. Imlay, 4 N. J. L. 330 (1 Suth.) This iowed to run at large in violation of a city ordinance, doctrine is supported by the following considera- stray upon a railroad track, they become trespassers, tion: The courts are open and freu to all who have and the company is not answerable for injuries ingrievances and seek remedies therefor, and thereflicted upon them by any negligence of its servants, should be no restraint upon a suitor, through fear of not amounting to wanton or reckless misconduct. The liability resulting from failure in his action, which rule as to injury to trespassing animals which become would keep him from the courts. He ought not, in exposed by the trespass, and through the owner's ordinary cases, to be subject to a suit for bringing an fault, appears to us to be well settled. In Maynard v. action, and be required to defend against the cbarge Boston & M. R. Co., 15 Mass. 458, a recovery was of malice and the want of probable cause. If an action sought for an injury to the plaintiff's horse, sustained may be maintained against a plaintiff for the malicious while trespassing upon defendant's track. The trial prosecution of a suit without probable cause, why court took substantially the same view of the law that should not a right of action accrue against a defend- the court below did in the case at bar. It refused to ant who defends without probable cause and with instruct, as asked, that “the defendants would not be malice? The doctrine surely tends to discourage vex. liable unless the plaintiff proved a wanton and reckations litigation, rather than to promote it. It will be less misconduct of their employees in the management of the train when the horse was killed." It was the interviews the defendant authorized the plaiutifis held that this instruction should have been given. to go on with the building of the organ, aud at the Gray, C. J., said: “If the horse had been rightfully same time demanded a written agreement. None of upon the defendant's land it would have been their the agreements were satisfactory to the defendant, duty to use reasonable care to avoid injuring him. each containing something he alleged he had not But it being admitted by the plaintiff that the horse agreed to, and finally he broke off further attempts at was trespassing upon the railroad, they did not owe an agreement. B. and C. thereupon bronght suit for him that duty, and were not liable to him for auy- breach of contract. Held, by a divided court (affirthing short of reckless and wanton misconduct." See, ing the judgment of the court below), that there was also, Touawanda R. Co. v. Munger, 5 Denio, 255; S. no binding contract between the parties, it being the C., 4 N. Y. 349; Validegrift v. Rediker, 2 Zab. 185; clear intention of the defendant that he should not Railroad Co. v. Skinner, 19 Pemu. St. 298; Tower v. be bound until all the terms of the contract were reProvidence & W. R. Co., 2 R. I. 404; Cincinnati, H. & duced to writing and signed by the parties, and that D. R. Co. v. Waterson, 4 Ohio St. 424; Louisville & the defendant was not liable for work done on the er. Frankfort R. Co. v. Ballard, 2 Metc. (Ky.) 177; Vance pectation or hope on the part of the plaintiff that such v. Cayuga, etc., R. Co., 26 N. Y. 428; Bowman v. an agreement would be consummated. MacMackin . Troy & B. R. Co., 37 Barb. 516; Terry v. N. Y. C. R. Timmins. Opinion per Curiam. (See 20 Eng. R. 20); Co., 22 id. 574; Bush v. Brainard, 1 Cow. 78. l'an 22 id. 393; 25 id. 131, 572; 30 id. 839.- ED.] Horn v. Burlington, etc., R. R. Co. Opinion by [Decided Feb. 25, 1884. ) Adams, J. [Decided March 19, 1884.] *
CONSTITUTIONAL LAW FEES OF OFFICER - CANNOT MUNICIPAL CORPORATION —
INCREASE OR DIMINISH.— Where it is the official daty
CHANGING GRADE -LIABILITY - JUDGMENT BAR.- Where the grade of a
of a sheriff to board the prisoners in the county jail, street has been lowered from curb to curb in such a
the sum secured to him by law as compensation for manner that a corresponding change in the level of
this service is an “emolument" within the meaning the sidewalk must inevitably follow, an entire cause
of the Constitution of Pennsylvania, article 3, section of action arises at once in favor of the abutting owners
13, which cannot be increased or diminished during for the full amount of the damage: and recovery of
bis term of office. Where at the beginning of a sherjudgment for the alteration of the grade of the drive
iff's term of office his compensation for boarding prisway is a bar to any further action on account of the
oners in the county jail is fixed by law at a certaiu rate grading of the sidewalk. Hempstead v. City of Des
per diem, the law cannot be so altered during the Moines. Opinion by Rothrock, C. J.
sheriff's term of office as to make his compensation [Decided March 19, 1884.]
for said service rest in the discretion of a majority of the judges of the Court of Quarter Sessions. Apple
v. County of Crawford. Opinion by Green, J. PENNSYLVANIA SUPREME COURT [Decided Feb. 18, 1884.) ABSTRACT.
FRAUD - IFMUTUAL, GOOD CONSIDERATION - COURT
WILL NOT RELIEVE FROM.- Where an insolvent debtor ARBITRATION AND AWARD – DUTY OF ARBITER - in fraud of his'creditors assigus his property to a third EFFECT OF AWARD – UNCERTAINTY.-(1) Where a
person, taking from him judgment notes for the value contract contains a submission to a designated person thereof, and subsequently assigns one of said judgas a common arbiter of all and every question of
ment notes as collateral security to a creditor (bank) difference between them, growing out of the contract," who has knowledge of the fraud, the maker of such the non-performance of the contract by one of the par- note cannot set up the fraud as a defense in an action ties constitutes
within the jurisdiction brought against him by the creditor thereon. The of the arbiter. (2) Such a submission is a binding mutual fraud of the parties constituted sufficient conone on the parties, and it includes questions of law sideration in the above case for the note in suit. It is as well as of fact; the arbiter, though not learned in
settled by numerous authorities, that there is no more the law, may pass upon the construction of the con
binding consideration known to the law than the tract; and where it is a material question whether a
mutual fraud of the parties. The books are full of clause therein providing that ten per cent of the con- cases wbere a party to the fraud has sought relief in tract price shall be retained by one of the parties upon the courts from the consequences of his unlawful act, certain contingencies is to be treated as a penalty or but the decisions have been uniformly adverse to such as liquidated damages, he must decide that question.
applications. It is not the province of the law to help (3) When the arbiter does not so decide, but awards
a rogue out of his toils. The rule is to leave the parone sum upon one construction of said clause, and an- ties where it finds them, giving no relief and no coun: other sum if another construction “should properly tenance to contracts made in violation of statutes. be held,” the award is bad as uncertain and indefinite, Hershey v. Weiting, 14 Wright, 240; Evans v. Dravo, and as driving the parties to a different tribunal for
12 Harris, 62. It follows that the defendant would the settlement of differences which they had con
have no defense to this note as against the obligee or tracted should be finally determined in one of their payee. The learned judge of the court below, bow. own choosing. Gratz v. Gratz, 4 Rawle, 438; Etnier
ever, was of opinion, and so instructed the jury, that v. Shope, 7 Wr. 110; Stanley v. Southwood, 45 Penn.
if the bank had knowledge of the fraud and afterward St. 189. Connor v. Simpson. Opinion by Green, J. took the note, it became a party to the fraud and [Decided Oct., 1883.]
could not recover. The fallacy of this ruling is obvi. CONTRACT - WHEN NOT BINDING UNTIL REDUCED TO
The note is good as between the parties, for the WRITING.– A., who was a Roman Catholic priest, en
reason that the maker cannot set up his fraud as a de. tered into negotiations with B. and C., organ builders,
fense. If he cannot set it up against the payee, neither for the construction of an organ for his church. The
can he set it up against the bank, and the inquiry preliminaries of the contract were apparently agreed
whether the bank had knowledge of the fraud was upon after several interviews. At the outset, defend
wholly irrelevant. Winton v. Freeman. Opinion by ant asked for a written agreement, and throughout
Paxson, J. the interviews constantly insisted upon it. At one of
[Decided March 26, 1883.)
ILLINOIS SUPREME COURT ABSTRACT.* Singerly v. Fox, 75 Penn. St. 114. (2) The powers of a JUNE TERM, 1883.
receiver are coextensive only with the jurisdiction of
the court appointing him, and a foreign receiver will EVIDENCE-INTENT-CONTRACT FOR FUTURE DELIV- not be permitted, as against the claims of creditors ERY.-In an action to recover the price of wheat resident in this State, to remove from this State the bought by the plaintiff, as factor, for the defendant, assets of the debtor, it being the policy of every govfor future delivery, where the defense was that the ernment to retain in its own hands the property of the transaction was & gambling contract, no delivery debtor until all domestic claims against it bave been being intended, but only an adjustment of differences satisfied. (3) But where a receiver has once obtained in price, it was held error to refuse to let the defend- rightful possession of personal property situate within ant testify as to conversations had by him with the the jurisdiction of his appointment, which he was applaintiff before the orders for the purchases were act- pointed to take charge of, he will not be deprived of ually given, as throwing light upon the nature of the its possession though he takes it, in the performance of contract. These surrounding circumstances constitu- bis duty, into a foreign jurisdiction. While there it ting part of the res gestæ may always be shown to the cannot be taken from his possession by creditors of jury along with the principal part. 1 Greenf. Ev., $ the insolvent debtor who reside within such jurisdic1018. It is not alone the last words spoken or written tion. Pond v. Cooke, 45 Conn. 126; Cagill v. Woolthat in all cases give character to a transaction. A dridge, 8 Baxter, 580: Kilmer y. Hobart, 58 How. Pr. promissory note containing usurious interest, or made 452. Chicago v. Packet Co. Opinion by Sheldon, C. J. upon a fraudulent consideration, or for a gambling debt, may be explained, or even contradicted, by show
RAILROAD FRANCHISE NOT EXCLUSIVE - OTHER ing previous facts out of which it grew. Hewitt v.
ROADS MAY CROSS OR RUN PARALLEL.–The mere grant Dement, 57 Ill. 500; 1 Greenl. Ev., $ 284, and pote. of the right to build a railroad between given termini Why then may not a verbal contract, alleged to be a creates no implied obligation by the State to not theregambling contract, be explained by facts, circum- after grant the right to build other railroads parallel stances or conversations, which shed light upon the
with it between the same termini. Charles River meaning of its words? It is in such case proper to as
Bridge Co. v. Warren Bridge Co., 11 Pet. 420; Hudson certain such intriusic facts as the parties may have
and Delaware Canal Co. v. New York and Erie R. Co., bad in view at tbe time the order for the contract was 9 Paige, 323; Illinois and Michigan Canal v. Chicago & made in order to obtain the meaning of its words. R. I. R. Co., 14 Ill. 314. Nor does it imply an obligaDoyle v. Teas, 4 Scam. 202. Brand v. Henderson. tion on behalf of the State that other railroads, with Opinion by Dickey, J.
their tracks and switches, shall not thereafter be
granted the right to cross the State in a different direcJUDGMENT – APPEAL FROM, OPERATES AS STAY
tion, and thus pass over its tracks and switches. ChiLIES NOT DIVESTED.-An appeal from a judgment of
cago & Alton R. Co. v. Joliet, Lockport and Aurora the Circuit Court to the Supreme Court does not va
Rr. Co., 105 Ill. 388. The public welfare especially recate the judgment, or destroy its lien on real estate or
quires that the business of carrying shall be open to its capacity to become a lien on land acquired pending competition as far as possible, and no monopoly in that the appeal. Its only effect is to operate as a stay of
regard, however limited the sphere of its operation, proceedings to enforce the judgment. Oake3 v. Wil
can be presumed to have been intended by the Legisliams. Opinion by Walker J. [See 2 Eng. Rep. 124.
lature in the enactment of the general law for the -ED.)
formation of railroad corporations. Lake Shore v. EMINENT DOMAIN-EXCESSIVE DAMAGES-PROCEED- Chicago, 97 Ill. 506; Central City v. Fort Clark, 81 id. ING TO CONDEMN RIGHT OF WAY-PRESUMPTION.-On 253, distinguished. Connecting Railroad v. Union, etc. an assessment of damages for right of way, where the Opinion by Scholfield, J. jury, at the request of both parties, view the premises, and no other evidence is offered, every presumption will be indulged in favor of the correctuess of the verdict. In such case in cannot be known the damages assessed are excessive, as it cannot be known
WISCONSIN SUPREME COURT ABSTRACT. what the jury saw. Peoria, etc., v. Barnum. Opinion by Scott, J.
CONTRACT_PAYMENT OF MONEY TO THIRD PARTY.TAXATION-HOW LIEN FOR TAXES ENFORCED.—The
Where, at the time of borrowing money, it is agreed lien given by law upon land for taxes due thereon,
between the parties that the borrower should pay it to whatever its force and scope may be, can not be en
a third party, to be by bim delivered to the lender, and forced in an ordinary action at law by the county or
it is paid to such party as agreed, the borrower is disState agaiust the tax debtor. That can only be done
charged from further liability. Fiske v. Fisher, 100 by bill in chancery under the statute. Biggins v. Peo
Mass. 97; Osborn v. Baird, 45 Wiz. 189. Where an inple, 106 111.270. Douthett v. Winter. Opinion by Scott,
struction asked for covers a point material to the isJ.
sue, and there is some evidence tending to support it,
the party requesting it is entitled to have it given. RECEIVER-FOREIGN-POWERS CONFINED TO JURIS.
Whether the facts stated therein are true or not is a DICTION APPOINTING-CREDITORS CANNOT INTERFERE
question for the jury, not for the court. Campbell v. WITH POSSESSION. - (1) Where a receiver takes pos.
Campbell, 54 Wis. 98; 11 N. W. Rep. 456. Sailer v. session of a barge within the jurisdiction of the
Barnbusky. Opiniou by Cassoday, J. court appointing him, as the property of the insolvent
[Decided March, 1884.] debtor, he becomes invested with a special property in it, like that of a sheriff on a valid levy, and he may JOINT PARTIES--TORT-FEASORS–DISCHARGE OF ONE. protect this special property while it continues, by ac- -The discharge of one of two tort-feasors, against tion, in like manner as if he were the absolute owner.
whom separate actions have been brought, does not Cantwell v. Sewell, 5 Hurl. & N. 728; Clark v. Connec
discharge the other unless the satisfaction accepted by ticut Peat Co., 35 Conn. 303; Taylor v. Boardman, 25
the plaintiff was intended by him to extend to the enVt. 581; Crapo v. Kelly, 16 Wall. 610; Waters v. Bar- tire injury. Ellis v. Eason, 50 Wis. 138. Pogel v ton, 1 Cold. (Tenn.) 450; Boyle v. Tonnes, 9 Leigh, 158; Meilke. Opinion by Cole, C. J. *To appear in 107 Illinois Reports,
[Decided April 8, 1884. ]
MISSOURI SUPREME COURT ABSTRACT.* FIRE-INFANCY OF INSURED NO DEFENSE TO CON
PANY-AMOUNT OF EVIDENCE IN CIVIL CASES. - It is no DEED - DEFECTIVE ACKNOWLEDGMENT CORREC- defense to an action upon a policy of insurance that TION.--After a married woman's deed has been deliv. the insured, being infants, were not bound by the couered, and the officer who certified the acknowledg- tract. In the case of New Hampshire Mut. Fire Ins. ment had gone out of office, he undertook to correct a Co. v. Noyes, 32 N. H. 345, it was held that an infant defect in her certificate. Held, that this act was void who had insured his stock of goods was not liable to for want of power. Wannell v. Kem, 51 Mo. 150; S. C., the company ou his premium note, as for necessaries, 57 id. 478, distinguished. Gilbraith v. Gallivan. Opin
when the infant interposed the plea of infancy; but ion by Winslow, Commr. [See 29 Alb. L. 356.-En.)
the contract of insurance was not held void. Many
contracts of infauts are not void, but voidable merely, STATUTE OF FRAUDS—MEMORANDUM-PAROL EVI- in which case iufancy is a personal privilege of the inDENCE.-(1) A memorandum offered in evidence was fant,of which no one can take advantage but the infant as follows: Messrs. Parlin & Orendorff: Gentlemen himself while living. Contracts which are manifestly -.Please execute the following order for plows, culti- for the benefit of the infant are not void, but voidable vators, *
etc., to be delivered on board cars merely. The contract of insurance is of this class, and in Chillicothe, Mo., marked for J. F. Lash: No. 6. 14. although entered into between the defendaut and the inch cut, medium steel landside old ground plows, minors jointly with their mother, is binding on the the iron beam, $22; No. 7 (extra). 16-inch cut, medium defendant. There was no fraud or concealment pracsteel landside, three-horse, old-ground plows, iron ticed upon the defendant with respect to the infanos beam, $22; and other items of Plows in detail. Culti- of the parties it was contracting with; the policy de vators - Iron beam, Parlin's patent, with shields, scribes them as minors. A person to whom a promise $14.50; wood beam, Parlin's patent, with shields, is made may sue upon it, though the consideration $13.50. For which I agree to give you my notes paya- moves from another. Mallon v. Whipple, 1 Gray, 321 ble with exchange, or by express, prepaid, at above
All contractees must join in suing upon a promise list, for plows, less forty-five per cent, and payable all made to them jointly, and any defense that is good January 1, 1879, with ten per cent interest; cultivators against one of them personally will defeat the entire less net per cent, and payable January 1, 1879, with ten action; nor cau such person help the others by assigoper cent interest. Parlin & Orendorff, per Taylor." ing his claim to them. The interests of parties who Held, that though not a complete and perfect con- have jointly taken out a policy of insurance are not tract, this was a sufficient memorandum of a contract severed by the occurrence of a loss; and any subsebetween J. F. Lash and Parlin & Orendorff, so as to be quent failure upon the part of one of them to comply admissible in evidence in an action by the former with the conditions imposed by the policy will defeat against the latter; and that parol evidence was admis- any action that may be brought upon it. In a civil sible to explain and apply it to the contract actually action, when the defense relied upon amounts to the existing between the parties. (2) When a written charge of a crime, this defense need only be proved by memorandum of a contract does not purport to be a
a preponderance of evidence; but the presumption of complete expression of the entire contract, or part of innocence exists as in a criminal case, and should be it only is reduced to writing, the matter thus omitted taken into consideration in fixing the preponderance may be supplied by parol evidence. O'Neil v. Crain, of evidence. Sup. Ct. Mich. April 9, 1884. Monaghan 67 Mo. 250; Rollins v. Clay brook, 22 id. 407; Moss v. V. Agricultural Fire Ins. Co. Opinion by Champlin, J. Green, 41 id. 389; Briggs v. Muuchon, 56 id. 467 ;
(18 N. W. Rep. 797.) Moore v. Mountcastle, 61 id. 425. Lash v. Parlin.
FIRE-INTEREST OF ASSURED-CONDITION WAIVEDOpinion by Winslow, Commr.
ATTEMPT AT FRAUD WORKS FORFEJTURE.-(1) Where a JUDGE DISQUALIFICATION.-In a proceeding to policy of iusurance provided that if the interest of the condemn land for a street, a judge who is a party to the
assured in the property were not entire and uncondi. record camuot sit in the case even by consent of par
tional, it must be so expressed in the written part of ties. The statute which authorizes a judge“who is in
the policy, or else the policy should be void, and a part terested in any suit" to try it, if the parties consent,
of the property was mortgaged to A., held, that though has no application to such a case. R. S., $ 1041. City
the mortgage was not originally mentioued in the polof Kans(18 v. Knotts. Opinion by Martin, Commr.
icy, the company, by indorsing thereon, “loss, if any, [See 28 Eug. R. 787.--Ed.]
payable to A., according to his interest," waived the breach of condition and was bound by the contract. (2) A clause in the policy requiring proofs of loss to be
made by the party originally insured, even though the INSURANCE LAW.
amount should be made payable to a third party, does
not entitle the insured in such a case to recover the FIRE-WAIVER OF FORFEITURE-RECEIVING ASSESS- amount of the loss as bis own. (3) Any attempt by the MENT.-Where an insurance company has notice of a insured, by means of application under oath, to rebreach of the contract which would avoid the same, cover the full amount of the loss in such a case, is & but fails to cancel the policy, and even receives an as- fraud upon the company within the meaning of a sessment on the plaintiff's stock in the company, on clause in the policy providing that “all frauds, or ataccount thereof, these acts amount to a waiver of the
tempt at fraud, by false swearing or otherwise, shall breach. There could scarcely be any act more strongly cause a forfeiture of all claims." Sup. Ct. Iowa. indicating the continuance of this policy, after the April 9, 1884. Lewis v. Council Bluffs Ins. Co. Opinbreach of conditions thereon, than this assessment. It ion by Beck, J. (18 N. W. Rep. 885.) is so held in Viall v. Genesee Ins. Co., 19 Barb. 440. In support of the principle we might cite cases too numerous to mention in this opinion. See Joliffe v. Madi. son M. Ius. Co., 39 Wis. 111; Palmer v. St. Paul F. &
INDORSER-NOT LIABLE-PAPER NOT NEGOTIABLE. — Orton, J. (18 N. W. Rep. 749.)
A promissory note bore upon its face a statement that
it was issued as collateral to the makers' draft ac*To appear in 78 Missouri Reports.
cepted by a third party. In an action against the in
dorsers of this note in their cbaracter of indorsers, bear the consequences of such misleading defect. But held, that the undertaking of the makers was a contin- when the name of the maker is not so fashioned as to gent one; that the amount due on the note at its ma- suggest to the notary a false name, but he finds it turity was uncertain; that the note was not negotia- illegible, then it plainly becomes his duty to use reable, and that the indorsers, as indorsers, were not lia- sonable endeavors to ascertain who is the person thus ble. Sup. Ct. R. I. American National Bank v. indistinctly signified. He is, when thus placed, put Sprague. Opinion by Tillinghast, J. (To appear in 14 upon inquiry, and must use proper diligence. Such I R.I.)
understand to be the legal rule. Pars. on Bills and TAXATION-NOTES “USED FOR CIRCULATION Notes, 485. Sup. Ct., N. J. Nov., 1883. McGeorge v. NOTES GIVEN TO EMPLOYEES.—The nineteenth section Chapman. Opinion by Beasley, C. J. (To appear in of the act of February 8, 1875 (18 St. 311), providing 45 N. J. L.) that “every association other than national bank associations, and every corporation, * *
CRIMINAL LAW. pay a tax of ten per centum on the amount of their own notes used for circulation and paid out by them,"
LIQUORS — TAX NOT LICENSE-CONSTITUTIONAL DISdoes not apply to certificates of indebtedness, bear.
CRIMINATION.-(1) The imposition of the tax upon the ing interest and payable to bearer on a certain day business of selling intoxicating liquors supplied from therein named, issued in denominations of five and
manufacturers out of the State is not a license, and is ten dollars each, and paid out by a railroad company
not a violation of the Constitution of this State. to its employees for wages, and providing that they Youngblood v. Sexton, 32 Mich. 406; Kitson v. Mayor would be received by the company at or before matu- of Ann Arbor, 26 id. 326. It is a restraint upon such rity for any debts due the company. These notes or traffic through the police power of the State. Bartecertificates, having been issued only to the employees meyer v. Iowa, 18 Wall. 129; License Cases, 5 How. of the company on account of wayes, and when paid 504; Gibbons v. Ogden, 9 Wheat. 205; Passenger Cases by the company having been cancelled and not reis- 7 How. 283. (2) The statute (act 226, Sess. Laws 1875) sued, were not “used for circulation," and that they does not prohibit the introduction or sale of liquors were used afterward by those to whum they were is.
made outside the State; it simply taxes the person sued to discharge their debts to others or to purchase who carries on the business here by making sales in subsistence for themselves, does not affect the charac- this State, and is not in conflict with the article of the ter imposed upon them by the company. We are of Federal Constitution regarding the commerce between opinion that this case is ruled by U. S. v. Wilson, 106 States. The statute does not prohibit the introducC. S. 620; 2 Sup. Ct. Rep. 85. In every essential par- tion and sale of liquors made outside the State. It ticular the certificates issued there and those in ques- simply taxes the person who carries on the business tion here are remarkably alike. The former were cer- here by making sales in this State. It in no way intificates of indebtedness, good for round sums, paya- torferes with the introduction of the liquors here. It ble to bearer at a future day, with interest, and one- tolerates and regulates, but seeks not to prohibit. I fourth of their face value was receivable before matu- think in this case no question can be successfully made rity for freight and debts due the company, and were under this clause of the Constitution until the poiut paid out again at their face value with interest. Un- bas been reached where regulation ceases and probibider these circumstances the Supreme Court held that tion begins. A State may pass all such laws as she it was not satisfied that these certificates
were calcu. may deem necessary or desirable for the safety, health, lated or intended to circulate or be used as money." or morals of her people, and may use whatever means Now in view of this decision, we cannot hold that cer- she may think proper to that end, provided she does tificates of similar form, used by the railroad com- not antagonize any law of Cougress. Com. 7. Kimball, pany, not for circulation, but as evidence of wages due 24 Pick. 363; License Cases, 5 How. 575. The right of to its employees, are within the scope and meaning of a State to tax occupations generally is recognized in the act of Congress. Cir. Ct., E. D.Penu. March, 1884. Brown v. Maryland, 12 Wheat. 444; Nathan v. LouPhiladelphia & R. R. Co. v. Pollock. Opinion by Mc- isiana, 8 How. 80; Pierce v. New Hampshire, 5 id. Kennan, J. (19 Fed. Rep. 401.)
593; Hinson v. Lott, 8 Wall. 148; Machine Co. v. NEGOTIABLE INSTRUMENT-BURDEN OF PROOF-AC
Gage, 100 U. S. 676. (3) There is no unjust discrimina
tion in the above act against citizens of other States; COMMODATION NOTE TRANSFERRED AFTER MATURITY. --When it is a part of the defense that a note was
the person paying the tax stands on the same footing taken after its maturity such fact in general must be
as the resident dealer, both as to sales made and quanproved by the defendant. Duncan v. Gilbert, 5 Dutch.
tity sold. Woodruff v. Parham, 8 Wall. 123; 521; Harger v. Worrall, 69 N. Y. 370. Au accommo.
Baltimore, 100 U. S. 438; Ward v. Maryland, 12 Wall. dation note is negotiable after its maturity, and if
418; 18 V. W. Rep. 807. Sup. Ct. Mich., Apr. 9, 1884. taken for value will bind all parties to it. The plaintiff People v. Walling. Opinion by Sherwood, J. (See 29 was a married woman, aud had taken the note in suit
Alb. L. J. 412. – ED.) in the State of Pennsylvania by indorsement from her husband. There was no proof of the law of Pennsyl
RECENT ENGLISH DECISIONS. vania. Held, that the rule of the common law was applicable, and that she showed no title to the note. Sup.
SHIP AND SHIPPING-BILL OF LADING-LIMITATION Ct., N. J. Nov., 1883. Seyfert v. Edison. Opinion by
OF LIABILITY--NEGLECT OF DUTY TO PROVIDE SHIP FIT Beasley, C. J. (To appear in 45 N. J. L.)
FOR ITS PURPOSE.-Certain cattle were shipped on board
a steamer for conveyance from London to New York NEGOTIABLE INSTRUMENT-PROTEST-DILIGENCE OF
under a bill of lading which provided that “these aniNOTARY.-When the maker's name to a note is illegible mals, being in sole charge of shippers' servants,” “it is the notary, in making protest, must make a reasona
hereby expressly agreed that the National Steamship ble effort to ascertain the name. If the notary neglect
Company, or its agents or servants, are as respects such duty or misdescribes such name, whereby an in
these animals in no way responsible either for their dorser is misled, the protest will not be available as to
escape from the steamer or for accidents, disease or such party. A mistake of that character is not attributable to the negligence of the holder of the paper, or
mortality, and that under no circumstances shall they
be held liable for more than 51. for each of the animals." that of his agent, giving notice of its dishonor, but the Held, that the above clause limiting the liability of indorser who passes the paper into circulation must shipowners to 51. for each of the cattle did not apply