-

Judgment affirmed with costs-Staats v. Bristow; Wallace v. Vreeland; Clussman v. Long Island Railroad Co.; Sandford v. Wheeler; People ex rel. Haneman v. Commissioners of Taxes; The Third National Bank of Buffalo v. Blake; Higgins v. Murray. Order affirmed with costs White v. Bogart. Motion denied without costs Rathbun v. The Citizens' Steamboat Company of Troy. Motion for reargument denied with $10 costs-Phelps v. Nawlen.— - Judgment reversed and new trial granted; costs to abide event - Dutchess County Mutual Insurance Company v. Hackfield; Elsworth v. Etna Insurance Co. - Order reversed and new trial granted; costs to abide event - Jennings v. Conboy. Order granting new trial reversed, and judgment ordered on verdict, with costs-Moore v. The Mayor, etc., of New York. Order of General Term reversed, and order of Special Term affirmed, with costs - People ex rel. Thompson v. Board of Supervisors of Hamilton Co.

CORRESPONDENCE.

THE POSITION OF THE COURT OF APPEALS AS TO WHOM AN INSURANCE AGENT REPRESENTS.

To the Editor of the Albany Law Journal:

SIR-I have been much astonished to find in the foot note to page 629 of Mr. Wood's Treatise on The Law of Fire Insurance, a book which otherwise I have found to be very carefully prepared, the remarkable statement, in discussing the subject of the power of the insurer, as he styles it, "to make its agent the agent of the assured," that the decision in Train v. Holland Purchase Ins. Co. leaves the whole doctrine unsettled in the Court of Appeals of this State. This statement is so entirely erroneous, and so likely to mislead some who may read this book and accept it as authority that it ought to be immediately corrected. The decision in Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47, written by Judge Folger, and in which all the judges concurred, placed beyond the reach of a doubt the right of an insurance company to insert in its policy the clause in question that " any person other than the assured who may have procured this insurance to be taken by this company shall be deemed to be the agent of the assured named in this policy, and not of this company under any circumstances whatever or in any transactions relating to this insurance," and established the binding effect, of such a clause in the contract, upon the assured who accepts the policy. What language could be stronger than that of Judge Folger in this case, where he says that "the plaintiff and defendant have in the policy, the contract between them expressly agreed that Brand should be deemed the agent of the plaintiff and not of the defendant under any circumstances whatever;" and again where he says: "But we must take the contracts of the parties as we find them and enforce them as they read."

This decision of the Court of Appeals in Rohrbach v. Germania Fire Ins. Co., which Mr. Wood cites, was followed by the same court in Alexander v. Germania Fire Ins. Co., decided February 22d, 1876, and reported in 66 New York Repts. 464, a case which Mr. Wood has

wholly overlooked and has not cited at all in the note referred to, although he had previously cited it as affirming this very doctrine on page 412 of his book, and afterward on another point on page 637, wrongly indexed page 635. In this case the court, Rapallo, J., said: "But the policy now in question contains an express agreement that any person other than the assured who may have procured the assurance to be taken by the company shall be deemed to be the agent of the assured and not of the company under any circumstances whatever or in any transaction relating to the assurance. In Rohrbach v. The Germania Insurance Company (62 N. Y. 47) this court decided that this clause was operative and precluded the assured from claiming that the company was bound by the knowledge of a similar agent through whom a policy had been procured." All the judges, except Church, C. J., and Miller, J., who did not vote, concurred in the opinion following the decision in Rohrbach v. Germania Ins. Co.

How can Mr. Wood say that Train v. Holland Purchase Ins. Co. leaves the whole doctrine unsettled? It does not appear by the decision which was rendered by Judge Miller in that case that the question was considered at all by the Court of Appeals. "The only question," the judge says, "arising upon this appeal is whether, at the time when the plaintiff and defendant entered into the contract contained in the policy of insurance upon which this action was brought, there was another policy in the Andes Insurance Company in violation of the contract between the parties," and having thus stated the question he proceeds upon the assumption that Goggin, the agent who procured the insurance, was the agent of the plaintiff, as the defendant claimed, and, without entering into the discussion of any other question, he affirms the judgment upon the ground of the fact that the surrender and cancellation of the Andes policy was complete before the insurance in the defendant's company was effected. I cannot perceive the slightest sign here of the Court of Appeals wavering or receding by a single step from the position taken by it in the decisions first above cited, or any ground for Mr. Wood's statement that the case last cited leaves the whole doctrine unsettled. On the contrary, the Court of Appeals has, by their decisions in the cases cited, without a dissenting opinion, determined and set the question forever at rest in every case where the clause in question is contained in the policy, and I think no company now issues any policy without this clause in it.

NEW YORK.

M. WINSLOW.

[To this letter Mr. Wood makes the following answer. Ed. A. L. J.]

To the Editor of the Albany Law Journal:

SIR-Your correspondent (Mr. Winslow) calls attention to an erroneous citation upon page 629 of my work on Fire Insurance. The case intended, is "Sprague" v. Holland Purchase Ins. Co. instead of "Train," and it will be seen that this is the case intended by reference to page 628, and to the case cited at the end of the note on page 627. I had previously discovered the error and caused the correction to be made in the plates. I regret that the error should have crept into the work, but, I have never yet seen a law book citing numerous cases in which more or less such mistakes did not occur. The most patient and careful proof-reading will not detect every error, and it often happens that the

operative after trial and conviction. Kellman v. State, p. 222. A canvas tent, kept for the purpose of public prostitution, held to be a disorderly house under the statute. Pringle v. State, p. 300. In the absence of any thing in the record of a capital case, to show that the accused was either arraigned or that he pleaded to the indictment, the judgment of conviction will be reversed and the cause remanded. Davis v. State, p. 425. A license, granted under the provisions of a city charter, to keep a house of prostitution, held to be a defense to an indictment for the offense of keeping such a house under a statute enacted previously to the granting of the charter. Haney v. State, p. 504. Upon the trial of an indictment for burglary the jury found the prisoner guilty of "burgerally and theft." Held, a ground for arrest of judgment. In Pugh v. State, p. 539, drunkenness is held, not to mitigate voluntary crime, and in Coldbath v. State, p. 391, temporary insanity, caused by drunkenness, is said not to excuse crime, though the fact that the accused was drunk at the time is admissible as evidence upon the question,

whether the murder was of the first or second degree. Holoman v. State, p. 610. Selling candy in packages, containing prizes, held to be a violation of the law against lotteries.

NOTES.

THE April number of The American Law Review

contains several articles of interest to the profession in a general way, and a single one on criminal law of practical value. The opening essay upon the "Nicholas Plan for electing the President," by Temple Bodley, Esq., of Louisville, Ky., will be read with interest by those who are engaged in political life. "The Turf Frauds and the Detectives," is an interesting history of a prosecution which occupied the attention of the English authorities and public within the past year, and attracted considerable notice elsewhere as showing the defects of the detective system. Mr. John Wilder May discusses, under the head of "Mens Rea," the question whether one who does an act which appears to him to be lawful, but which is in fact unlawful, should be convicted. The concluding article is entirely made up of two letters written by Chancellor Kent upon the subject of codification and the penal law. The digests, book notices and other editorial matter in the present number are, as usual, interesting and valuable.

A correspondent of the London Times quotes from Professor Leone Levi, in his "International Commercial Law," the following account of the legal modes of accepting bills in various countries of Europe: "Denmark and Sweden-Acceptance is expressed by the word 'accept' written on the bill itself, and followed by the signature of the drawee. Netherlands and Portugal-The acceptance must be clearly expressed in the bill itself, and must be written and signed by the acceptor. Russia-The acceptance is expressed by the word 'accepted' written on the bill itself, followed by the signature of the acceptor. Spain-If the drawee accept, he must express it in the bill itself in such words as 'I accept,' or 'We accept.' The acceptance must be written. Italy-The requisites of bills of exchange are the same as those expressed by the French code."

The English judiciary seem to secure for their relatives and those bearing their names very many lucra

tive appointments. The following list of officers and their names shows the advantage of having a friend in court: Secretary of Presentations, the Hon. E. P. Thesiger, 4001.; Secretary of Commissions, Mr. W. M. Cairns, 3001.; Secretary of Causes, Mr. J. Romilly, 1,000l.; Clerk of Records and Writs, the Hon. E. Romilly, 1,2001.; Registrar in Lunacy, Mr. C. N. Wilde, 1,000l.; Queen's Coroner and Attorney, Mr. Fred. Cockburn, 1,2001.; Master at the Crown Office, Mr. J. R. Mellor, 1,200l.; Associate, Mr. T. W. Erie, 1,000l.; Associate Exchequer Division, Mr. H. Pollock, 1,000l.; Master, Sir F. Pollock, 1,500l.; ditto, Mr. G. F. Pollock, 1,500l.; Queen's Remembrancer, Sir F. Pollock, 2,000l.; Secretary to Sir J. Hannen, Mr. J. C. Hannen, 3001.; Secretary to Sir R. Phillimore, Mr. Walter Phillimore, 3001.; Register in Bankruptcy, Mr. J. R. Brougham, 1,300l.; Clerk of Assize for Home Circuit, the Hon. R. Denman, 9531.; Associate, Mr. R. Denman, Jr.; Clerk of Assize, Midland Circuit, Mr. Arthur Duke Coleridge (salary not mentioned); Clerk of Assize, Oxford Circuit, Mr. E. Archer Wilde, 1,000l.; and Clerk of Assize, Western Circuit, Mr. W. nepotism. The judges think that it is a man's duty C. Bovill, 1,000l. Some people call this sort of thing

to look after his relations, when he can do so without injury to the public service; and no one can say that the judges have been unmindful of their duty in this respect.

Lord Justice Brett made some useful observations at Manchester, England, a few weeks since, on the difficulty of measuring sentences. A few days before he had inflicted on a prisoner, convicted of forging bills of exchange, a penalty of twenty years' penal servitude; in the case before him he sentenced a prisoner, convicted of the same offense, to fifteen months' imprisonment. The difference between the sentences was great, but so, also, was the difference between the guilt of the prisoners. The first was an old offender, who had been five times convicted of gross dishonesty, and three times of forgery; the second prisoner had borne a good character for honesty, frugality, and careful attention to business, and had been tempted to commit the crime by trade difficulties arising out of the present state of affairs abroad. The first, in short, was about as bad a case, and the second as mild a case as could well be imagined; and the discretion allowed to judges in regard to sentences would be a mockery if no difference were to be made in the penalties inflicted. The motive which sometimes seems to operate to prevent the proportioning of sentences to the guilt of the prisoner in the accurate mode adopted by Lord Justice Brett is the necessity of making a public example. It may be said that forging negotiable instruments is a very serious offense in a commercial country, and the public who hear that a light penalty has been inflicted are not aware of the circumstances of mitigation, and consequently complain of the sentence.

The St. Louis Court of Appeals, in the case of State v. Doepke, decided on the 19th ult., hold that a coffin used to cover a corpse may, after burial, be the subject of larceny. The court say: and the property may be said to be in the person who bought the coffin for the purpose of interment. Articles which have no market value may, nevertheless, have a value which the law will recognize. It is competent for a jury, in case of larceny of a coffin, to arrive at the value of the coffin at the time it was stolen, from the fact that the coffin was new, and from the price shown to have been paid for the coffin when bought. And, where it was shown that the coffin cost $35, they might well, under the circumstances, find the offense grand larceny, under an instruction that, to so find, they must find the coffin to be worth more than ten dollars. In a buried coffin containing a corpse there is no ownership that can be asserted by one person against another in a civil action; but an ownership of a character sufficient to support a charge of larceny will be taken to exist somewhere. It is not necessary for the purposes of the criminal law to fix this ownership, and an indictment is sufficient which charges that the coffin is the property of some person to the jurors unknown.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, APRIL 20, 1878.

CURRENT TOPICS.

ate.

The only hope of those who favor the continuance of the law is in delaying a vote upon it, which we trust will not be permitted.

That a uniform bankruptcy law might be devised which would be a benefit to the country, we do not pretend to deny. But to amend the present law in such a way as to render it a useful one, and at the same time satisfactory to those who now actively favor a bankrupt law, is not possible. A statute somewhat similar to the law regulating assignments for the benefit of creditors, now in force in this State, with a provision that on the payment of a certain

peal the bankrupt law. The very large majority given for this measure in the more conservative branch of our National legislature, indicates that the people of the country are not in favor of the law, and sustains the belief we have frequently expressed that its continued existence is due to a very small body of interested persons who derive profit from its operation. Years ago it became manifest that the expectations which existed when the present bankrupt law went into force would never be realized. Twice before the experiment of a uniform bankrupt law had been tried, namely, in 1800 and 1841, and both times a repeal had followed the enactment. It was said, however, that each of these acts were defective and one sided; one of them unduly favoring the creditor, and the other the debtor. The act of 1867, it was claimed, avoided all the mistakes of its predecessors, and it was believed that it would, at the same time, afford to the honest but unfortunate insolvent a means of relief, and prevent the perpetration of frauds by the dishonest one. That these anticipations have not proved correct is a patent fact. The law, at first, afforded relief to a few who for years had been oppressed by debts which were beyond their power to satisfy, but since then it has been a source of trouble to almost every business man. Dishonest men have been able to use it to protect themselves from the consequences of unlucky ventures, while honest tradesmen, temporarily embarrassed, have frequently been ruined by it. It has interfered with the operation of the ordinary laws for the collection of debts, and has discouraged the exercise of vigilance by creditors. While professing to be uniform it has as many rules as to exemption as there are States in the Union, allowing the bankrupt in California to retain a greater proportion of his property than the bankrupt in New York. That it is generally believed to have failed in its purpose, the vote in the Senate emphatically shows. The bill now goes to the House of Representatives, and its fate there, if a vote is reached, cannot be doubtful. The popular body, at a former session, pronounced very strongly in favor of repeal, but the bill did not pass the SenVOL. 17.- No. 16.

leased, would be unobjectionable. But this would do away with the various official fees which now appertain to the administration of the bankrupt law, and would of course meet with no favor from the registers, marshals, etc., who receive such fees. Under the New York law, if a debtor is insolvent and desires to fairly divide his property among his creditors, he makes an assignment to some business friend who is able to give security that he will deal with the estate for the best interest of the creditors. This assignee is under the control of the court and liable to those injured if he makes an improper use of his trust. The estate is not subject to the burden of any official fees, and only a trifling commission is allowed to the assignee. Under the bankrupt law a large sum must be deposited in court; the property of the debtor must oftentimes pass through the hands of the marshal who obtains a large sum for his services; the register must be paid for every step taken; process connected with the proceeding must be served by marshals, and the assignee must be paid heavy and uncertain fees and expenses. The result is that the creditor gets little or nothing though the debtor's estate may be solvent. Abuses exist under the State law, and some estates are not prudently administered, but in nearly every case the creditor receives more than he possibly could under the bankrupt law.

The decision of Judge Baxter in the United States Circuit Court for the Northern District of Ohio, in the case of Bank of Toledo v. Cumming, on the 8th inst., passes upon a question of considerable importance to stockholders in National banks. In the year 1876 complainant's capital stock was assessed for local taxes at its full value, while all other property was assessed at from thirty to forty per cent only of its value. Complainant applied for an injunction restraining the collection of this tax. The court granted the relief asked to the extent of sixty per cent of the tax, saying that whether the result of the assessment was from inadvertence or design, it was an injustice that contravened the provisions of the Constitution of Ohio, as well as those of the National Banking Law, and was a wrong which the