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to show that the note was extinguished, but simply refers to a manuscript decision as having been made to that effect. We might yield to its authority, however, as a general term case, except that it seems inconsistent with Dygert v. Remerschnider, 32 N. Y. 631. In Strong v. Skinner, 4 Barb., and Tisdale v. Jones, 38 id., the marriages took place before the act of 1849, and, of course, do not bear upon the present case, which is assisted by that statute. Whether the plaintiff can sue at law is not a very material question, though we think she can, because there is no doubt she can sue in equity, and as the same court is to administer justice, whether through the form of law or the proceeding in equity, it seems that when we have the case before us, showing that the note was her separate property, we ought in some form to apply a remedy. Judgment affirmed. Wright v. Wright. Opinion by Cardozo, J.

2. The learned judge in dissent considers the contract extinguished at law by the subsequent marriage of the parties, and cites Strong v. Skinner and Tisdale v. Jones, supra; he also considers it unnecessary here to determine the plaintiff's rights in equity; and that the acts of 1848, 1849, 1860, and 1862, give the plaintiff no right to maintain this action (citing 44 Barb. 366; 42 id. 374, 641; 25 N. Y. 328). Ib. Opinion by Barnard, J. INJUNCTION. See Damages.

LANDS UNDER WATER. See Real Estate.

LIFE INSURANCE.

Effect of the civil war on contracts of insurance. - On January 28, 1850, the defendant insured the life of James Sands for $5,000, in consideration of the annual premium of $160, to be paid in advance, on or before the 18th day of January in each year. The premiums were duly paid to one Muldon, the defendant's agent at Mobile, from the commencement of the risk down to and including the premium which fell due January 18, 1861. On January 18, 1862, the said Sands paid to said Muldon, who received the same without objection, $160 in confederate notes, as and for the annual premium payable on that day. Sands died July 12, 1862, having resided until his death in Mobile, Alabama. The questions discussed at the trial before the referee were: (1.) Did the existence of hostilities and the issuing of the proclamation of August 16, 1861, ipso facto (a) destroy the original contract of insurance, or (b) render unlawful its preservation from forfeiture by further payments of premium? (2.) Did the same circumstances ipso facto revoke Muldou's authority as agent? (3.) Was the payment of confederate money a valid payment of the premium? The referee decided all these questions in the affirmative, and dismissed the complaint with costs. On appeal, held, the decision of the referee was wrong. The civil war did not suspend the agency. The plaintiff's husband for years had paid the premium to defendant's agent. After the war commenced plaintiff's husband paid to defendant's agent the premium. The reason why he did not pay the premium to defendants themselves was because he was unable to come to the north to pay it to them. It would be the height of injustice to hold that plaintiff's husband, having paid regularly the premium from 1850 to 1862, was, by no act of his, to be deprived of the benefit of his policy. It should not be the policy of the law to increase the defenses of life insurance companies as against persons honestly insuring with them. Judgment reversed, new trial ordered and reference vacated. Sands v. The New York Life Insurance Co. Opinion by Barnard, J. (Continued next week.)

COURT OF APPEALS ABSTRACT.
AGREEMENT.

Settlement of estate.-A. died intestate, leaving several children. Letters of administration were taken out, and the children with others next of kin met, by appointment of the administrator, for the purpose of an amicable settlement and division of the estate. B., one of the children, charged C., who was also a child of A., with having appropriated to his own use a considerable portion of the personal estate of the deceased which should come under the distribution, and threatened him with suit if he did not account for the same. C. thereupon, and in consideration that if B. would agree to a settlement, and accept his share and portion of the assets that had come to hands of the administrator and agree not to prosecute him, promised that he would pay him $150. B. assented, and accepted his portion of the estate as distributed by the administrator. This agreement was, by an understanding between the parties, concealed from the other children. B. brought an action against C. upon his promise to pay the $150. Held, that the agreement was void, as no one had a right or could in good faith, by any secret arrangement with another, secure to himself any advantage over the others; as each became a party to and acquiesced in the distribution, he did so upon the faith that he was sharing equally with the others; and any secret agreement or arrangement which should disturb this equality was a fraud and a violation of the good faith which each owed to the other, and the confidence which each had a right to repose in the other, which called for the exercise of good faith in all, and prohibited each from securing any special advantage to himself. Adams v. Outhouse. Opinion by Allen, J.

APPEAL.

1. The defendant appealed from an order of the supreme court reversing an order of the city court of Brooklyn setting aside a judgment and granting a new trial, on the ground of newly discovered evidence in connection with fraud on the part of the plaintiff. Held, that the supreme court had no jurisdiction to entertain such an appeal. Baker v. Remington. Opinion by Allen, J.

2. The act of 1850 gave the appeal, and declared the cases in which it might be brought. The appeal given was from a judgment, with the power incidentally to review any intermediate order involving the merits, and necessarily affecting the judgment. No appeal from an order was given, except in connection with an appeal from a judgment. This right of appeal has not been enlarged by any subsequent statute. Ib.

ATTORNEY.

Authority of.-Au attorney retained to conduct a case in the court of appeals has authority to adjust the costs in the case, and to take such steps in the supreme court as may be necessary for that purpose. But where, in such case, a motion at special term for an extra allowance has been denied, and the denial affirmed at general term, the attorney has no authority without the consent of his client to take an appeal to the court of appeals therefrom. Smith v. City of Rochester. Opinion by Grover, J.

BREACH OF COVENANT OF SEISIN.

A. sold to B. certain premises upon which there were buildings. The former tenants of A. having erected and claiming such buildings, removed them after the

conveyance of the premises to B. B. recognized their right to do so, and brought an action against A. for breach of covenant of seisin, to recover the value of the buildings. It appeared on the trial at the circuit, that said buildings were erected by the tenants during an unexpired term of lease to them of the premises by A.; that said lease was renewed to them, the tenants agreeing to return the premises in as good state as found, damages by the elements, etc., excepted. The premises were sold by A. to B. before the expiration of the lease. Held, that on the renewal of the lease, without reservation of the buildings erected, the title to them passed to the lessor, and that the remedy of B. was against the person wrongfully removing the buildings, and not upon B.'s covenant. Loughram v. Ross. Opinion by Allen, J.

CARRIERS.

1. Misrepresentations as to vehicles of transportation.— A. contracted with B., as common carrier, to transport a cargo of rye from Troy to New York, agreeing to pay B. five cents per bushel and assume all risks of the voyage. B. represented his boat as rated as second class on the insurance register; but it was found to be rated only as third class, consequently A. was unable to procure an insurance on his cargo. He immediately informed B. of that fact, and forbid him carrying the rye upon the terms agreed upon. Afterward B. made an effort to procure an insurance, but failed, and started the boat on its voyage. Navigation was hazardous, and within a few miles a collision occurred, which produced a leak, and the rye was injured. Held, that A. had a right to rescind the contract in consequence of the misrepresentation of B. as to the ratable character of the boat, and that B., in taking the rye, assumed the risks of navigation and the ordinary liability of common carriers. Dauchy v. Silliman. Opinion by Church, C. J.

2. Delivery to connecting line. - The Michigan Central Railroad Company contracted as common carriers to tako a quantity of wheat from Kalamazoo to Detroit, and deliver it there to a propeller of the New York Central R. R. line of propellers on Lake Erie. After its arrival at Detroit, the Michigan C. R. R. Co. gave notice according to a custom prevalent with them and carriers who were accustomed to take goods from them. This custom was to deposit a written notice of the presence of the freight in a letter box appropriated to the particular carrier by whose line the freight was to go. The custom was uniform and fully recognized by all connecting lines. No evidence was produced that the plaintiff (the shipper of the wheat) knew of this custom. The wheat was destroyed at Detroit, before its delivery to the propeller line. Held, that the railroad company were liable for the wheat until its delivery to the New York line of propellers on Lake Erie. Mills v. Mich. C. R. R. Co. Opinion by Grover, J.

EJECTMENT.

A. demised certain premises to B. for the term of seventeen years, at an annual rent. A. had the election at the expiration of the term to pay for certain buildings or improvements upon the premises, deducting eight per cent from their appraised value, or renew the lease for five years. The appraisal of the buildings or improvements was to be made by two disinterested freeholders, to be chosen by each of the parties. The lease-and the term created by it-came, before the expiration of the term, to one D., by assignment from

B. A. gave D. notice that she had chosen one appraiser, and requested him to appoint one to act with him in appraising the buildings or improvements upon the premises; he did so, but they failed to agree upon the value of such buildings, etc. Nothing further was done until the expiration of the lease, when A. brought an action of ejectment against C., the sub-tenant of D., who was in possession of the buildings. Held, that there was no legal or equitable defense to the action. Scoville v. Maury. Opinion by Allen, J.

EXECUTION.

1. Death of judgment debtor: notice of sale under: effect of irregularity in. — Where, after judgment, process is issued for the collection of the judgment by the sale of the real property of the debtor, and a sale commenced by the advertisement of the property, the execution of the process is not arrested by the death of the judgment debtor. Wood v. Moorehouse. Opinion by Allen, J. (Peckham, J., dissenting.)

2. And the provision of the statute (2 R. S. 368, § 27), that, in case of the death of a party after judgment, but before execution, no execution shall issue on such judgment until one year after the death, does not arrest the proceedings upon an execution already issued. Ib.

3. The regularity of a sale of real estate by the sheriff is not affected by the fact that six full weeks did not elapse between the first publication of the The notice of sale and the day fixed for such sale. statute is complied with by a publication once in each week for six weeks before the sale. Ib.

4. Where it is claimed that a sheriff has not complied with the statute as to posting notices, the omission must be proved affirmatively. The officer is presumed to have done his duty. Ib.

5. Where one purchases in good faith and without notice of any omission of the sheriff to give the legal notice of sale, the validity of his title is not affected by such omission. He need not be a purchaser for a valuable consideration. Ib.

FALSE REPRESENTATIONS.

What constitutes. — A., by representations made to B., induced B. to sell him goods on credit. The sale resulted to the damage of B. The referee found upon the trial, that such representations made by A. were false and untrue, and expressly refused to find further, although requested to do so by A. The referee held, that the law presumed, without requiring further proof. that fraud and intent to deceive were the necessary concomitants of a false representation, and the loss sustained thereby. Held, that the referee erred in thus holding, and that the finding of the facts by him did not contain enough to sustain the conclusion of law. Meyer v. Amidon. Opinion by Folger, J.

HOTEL AND INNKEEPERS.

1. Liability of, for money and watch and chain stolen from room. — -A. was a guest at the Metropolitan hotel, and on retiring for the night he locked the door of his room, and placed his watch with chain and seal worth $350, and $50 in money under his pillow. Both money and watch were stolen during the night. It was shown on the trial that a notice was posted in A.'s room, to the effect, "that a safe was provided in the hotel for the safe keeping of money, jewels and ornaments (as required by the act, to regulate the liability of hotelkeepers). A. brought an action to recover the value of the watch and also the fifty dollars in money. Held.

that the defendant was not liable for the fifty dollars in money, having fulfilled the requirements of statute by posting notice that he would not be liable for money, jewels or ornaments, unless deposited with him for safe-keeping. Held, further, that the defendant was liable for the value of watch and chain. Rameley v. Leland. Opinion by Allen, J.

2. Any property which is useful or necessary to the comfort and conveniences of the guest, that which is usually carried and worn as a part of the ordinary apparel or outfit, or is ordinarily used and is convenient for use to travelers, as well in as out of their rooms, is left, as before the statute, at the risk of the innkeeper. Ib.

3. A watch is neither a jewel nor ornament, as these words are used and understood, either in common parlance or by lexicographers. It is not used and carried as a jewel or ornament, but as a time piece or chronometer. It is as useful and necessary to the guest in his room as out of it-in the night as in the day timeand is, therefore, not covered by the statute. Ib.

LANDLORD AND TENANT.

Consideration.-A. entered into an agreement with B., which, in substance, was as follows: A. had leased unto B. a certain building in New York city from the 1st day of October, 1867, to May 1, 1868, and the entire lofts of said building from May 1, 1868, for the term of three years thereafter, unless sooner terminated as hereinafter specified, it being stipulated and agreed between the parties hereto as a consideration in part of the letting of the premises herein, that in case at any time prior to the expiration of the said term the common council of said city, or any of its authorities, should order the removal of any part of said building, for the improvement or extension of the street, then the said party of the second part (B.) will not hold the party of the first part (A.) liable for any damage he may sustain by reason of such removal; he (B.) to receive the award, if any, from the authorities for damage sustained for such unforeseen termination, and also pay the rent up to the time of such removal, when this lease shall cease and come to an end. title of said premises passed to the city at the date of the confirmation of the report of the commissioners of estimate and assessment, December 30, 1867. Under this arrangement B. continued to occupy the premises until January, 1869, when he voluntarily removed therefrom. The city did not interfere with the premises until April, 1869. A. brought an action to recover the quarter's rent due February 1, 1869. Held, that B. was liable for the rent of the buildings up to the time of the removal of them by the city. Phyfe v. Elmer. Opinion by Rapallo, J.

LARCENY.

The

was the

1. Of proceeds of draft by indorser.-A. owner of a draft for $2,500, drawn upon a banking house in New York city, which he desired to procure the money upon. B. expressed his willingness and ability to procure the money for him. He took A. to a broker with whom he (B.) was acquainted, and an arrangement was made by which B. was to indorse the draft, and the broker was to procure the money and have it at his office on the same day at three o'clock, where the parties were to come, and A. was to receive the money. B. indorsed the draft and delivered it to the broker, with the consent and in the presence of A. Afterward, and before three o'clock, B. came to the broker's office and procured the money and carried it

away. Held, that B. was guilty of a larceny. People v. McDonald. Opinion by Church, J.

2. It was urged upon the trial that the indictment should have been for stealing the draft instead of the money. Held, that an indictment for stealing the draft could not be sustained, as A. delivered the draft to the broker himself, and in contemplation of law he intended to part with the possession and control of it, and never expected its return, and it was not in fact appropriated. Ib.

3. Stress was laid upon the fact that B. indorsed the draft, and it was argued that this gave him a right to receive the money, and also gave him some interest in it. Held, that the evidence showed that B. had a felonious intent when he indorsed the draft, and that the indorsement was a contrivance to get possession of the money. Ib.

4. If money or property is delivered to a person for mere custody or charge, or for some specific purpose, the legal possession remains in the owner, and a criminal conversion of it by the custodian is larceny. Ib.

PARTNERSHIP,

1. Authority of copartner to bind firm.-Partners are not liable for the contract of one of their firm when such contract is not within the common enterprise for which they were associated. Cobb v. Shepard. Opinion by Allen, J. (Grover, J., dissenting.)

2. The defendants entered into an agreement whereby they were to be jointly interested in the purchase of certain lands, and in the cutting and marketing of the wood on the lands, which was to be done under the direction of one of their number. While carrying on the cutting of the wood, an agent of the directing partner caused the erection of a saw-mill upon a part of the land, which part had been purchased by such agent. Held, that the building of a saw-mill was not, under the agreement to cut and market wood, within the limits of the agency of the directing partner, and that another partner would not be liable, as such, for machinery furnished for said mill. Ib.

3. The use of the note of such other partner, in payment for the lands, was no evidence that he was interested in the purchase. Ib.

PROMISSORY NOTES.

1. Agreement to extend time for payment. — A. purchased of B. a promissory note made by C. A. sued C. to recover on the same. C. gave evidence showing,

that while the note was in B.'s hands an action was commenced thereon, and it was agreed between C., B. and plaintiff in the action, that the suit should be discontinued; that C. should pay the costs accrued thereon, and have during the ensuing month to pay the note. The costs were paid and suit discontinued. A. brought his action before the expiration of the time agreed upon by the parties to the former action. Held, that there was no valid agreement to extend the time of payment. Parmelee v. Thompson. Opinion by Allen, J. 2. It is competent for the parties, by a parol agreement, to enlarge the time of performance of a simple contract, and the time of payment of the note in suit might have been extended by such agreement made upon a sufficient consideration. But a promise to extend the time of payment, unless founded on a good consideration, is void. Ib.

3. A payment of a part of the debt, or the interest already accrued, or promise to pay interest for the future, is not a sufficient consideration. Ib.

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4. If the only consideration for the promise of the creditor is the performance by the debtor, or the promise to perform some act which the latter is legally bound to perform, the promise is without consideration. Ib.

5. Waiver by indorser of demand and notice. The liability of an indorser of a note to pay it is in general upon the implied condition that payment thereof shall be demanded of the maker at maturity, and, in case of default, that notice of non-payment shall be given to the indorser. The right that demand should be made and notice given is personal to the indorser, and the waiver of it requires no new consideration to support it. Such waiver may be by express words, or it may arise by implication from the acts or conduct of the indorser. Sheldon v. Horton. Opinion by Andrews, J.

6. A. was the holder of a certain note a short time before its maturity. B., the maker, requested A. to hold it for another year. A. called upon C., the indorser, and stated to him the request of B., and asked him if he was willing to have it held for another year. C. consented. The holder of the note allowed it to mature without demand or notice, and deferred its collection for the term suggested. Held, that the liability of the indorser became absolute on the maturity of the note, and no subsequent demand or notice at any time was required. Ib.

1. Appointment of commissioners to locate road: failure to give notice.-It is the intention of the general railroad act, that the commissioners, upon the petition of one objecting to the proposed location of a railroad, should have jurisdiction of the entire subject of the location of the road through the county in which the land of the person applying for the appointment is situated. Matter of petition of Long Island R. R. Co. Opinion by Andrews, J.

2. The appointment of such commissioners can only be made after all the notices required by law have been served, and the fifteen days have expired within which persons aggrieved may apply for such appointment. Ib. 3. And where proceedings are commenced before any notice-provided for by section twenty-two of the general railroad law has been served upon one of the interested parties, and commissioners appointed under such proceedings, the application is premature and unauthorized, and the subsequent proceedings thereunder void, and such interested party is entitled to apply for the appointment of a commission, whose appointment will be valid. Ib.

4. An order of the general term setting aside such appointment of commissioners is appealable. Ib.

1. Duty of vendee to return, when articles defective. A. manufactured upon B.'s order a large number of mattresses, amounting to $2,475.92. The mattresses were to be of the best quality of hair, and of a specified weight, and if they lacked in either element B. was not bound to receive them, or if, on receiving them, he discovered any defect, he had a right to return them. The mattresses were delivered to B., and he accepted them. B. alleged that they were deficient in weight, but neglected to return them, offering A. therefor the price agreed upon, less $500, which he claimed was all they were worth. A. offered to take back the mattresses, and refund B. what money he had advanced on them. B. declined the offer. In an action to

recover the price, held, that B., by neglecting to return the mattresses, assented to the performance of the contract by A., and that he waived his right to rescind the same. Pomroy v. Shaw. Opinion by Church, C. J. 2. A party purchasing goods, after having an opportunity to examine them, must then decide whether he will accept or reject them. He cannot say that the article is not what he agreed for, but that he will receive it, and pay only such price for it as he may be able to prove it worth. He cannot thus change the contract, and compel the seller to incur the hazard of losing the substantial benefit of it. Ib.

STATUTE OF LIMITATION.

1. As to attorney's services.-The statute does not commence to run as against the account of an attorney until his connection with the proceeding in which he is employed is finally terminated. Mygatt v. Wilcox. Opinion by Grover, J.

2. A party who employs an attorney is personally liable to him for his services, though acting as a trustee or in a representative capacity in the business in which he employs him. Ib.

3. Where the defendants, who were administrators, employed the plaintiff in a matter connected with their estate, there being no pretense that the plaintiff undertook to look to the estate for payment for his services, they became personally liable therefor. Ib.

WILLS.

A. made his will, and, among other devisees, he bequeathed to C. and D., severally, a life estate in two certain parcels of real property, and after their death he gave the same in fee to their children; both of them died in the life-time of the testator, leaving no surviving issue. The question was, whether the heirs of A. took this land on the ground that it was not disposed of by the will, or whether the devisees took it under the residuary clause, which read as follows: "All the rest, residue and remainder of my property and estate, real and personal, whatsoever and wheresoever situate, and not herein and hereby specifically devised or bequeathed, I give, devise and bequeath" to certain persons named therein. Held, that there was a remainder in the lands given to C. and D. on the death of either of them, leaving no surviving issue, and that such remainder went to the devisees under the residuary clause, and not to the heirs. Young v. Young. Opinion by Grover, J.

DIGEST OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF WISCONSIN.*
BIGAMY. See Criminal Law.

BILLS AND NOTES.

Evidence of an oral agreement between the parties to a note, at the time it was made, is admissible to show a partial or total failure of the consideration. Smith v. Carter.

COMMON CARRIERS.

A railroad company received goods at Pittsburg, Pa., destined for Hudson, Wis., stipulating against responsibility as a carrier beyond its own line, but guarantying that the cost of transportation to Hudson should not exceed a certain sum-less than the aggregate of the charges on the several lines between Pittsburg and

*To appear in 25 Wisconsin Reports.

Hudson at the usual rates; the other connecting lines on the route having no knowledge or notice of the guaranty. Held, (1) That this was not a "through contract." (2) That even if there had been a "through contract," the other facts remaining, the rights of the successive carriers would be as hereinafter stated. (3) That each carrier after the first might charge and pay back charges, at the usual rates; and the last (or the warehouseman who received from it, paying back charges) has a lien on the goods for the total amount of such charges. (4) That the remedy of the shipper is against the first carrier, on the guaranty. (5) Whether the result in this case would be different if the other carriers had had notice of the guaranty, quære. Schneider v. Evans.

CONSTITUTIONAL LAW.

Declarations of a murdered person, made "when he was at the point of death, and every hope of this world gone," as to the time, place and manner in which, and the person by whom, the fatal wound was given, are admissible in evidence, notwithstanding the provision in the bill of rights as to the right of an accused person to "meet the witnesses face to face." Miller v. The State.

See Jurisdiction.

CRIMINAL LAW.

1. To sustain an indictment for bigamy it must be shown that the first marriage was valid by the law of the place where it was contracted. Weinberg v. The State.

2. Where, by the law of the place of marriage, it was required to be entered into as a civil contract before a magistrate, and the celebration of a religious ceremony of marriage without such prior civil marriage was prohibited under severe penalties, proof of the religious ceremony, in a prosecution for bigamy, would not authorize a presumption that the civil ceremony had been performed. Ib.

3. If two persons conspire to commit a felony, and, while they are engaged in prosecuting that common design, one of them commits murder, the other is guilty of murder also. Miller v. The State.

4. The court, on the trial of the wife in such a case, instructed the jury "that if defendant, without any fear or compulsion of any kind from her husband, agreed with him to go to the store of the deceased and rob it, the husband telling her, and she believing, that he did not intend to kill the deceased, but would do him no greater bodily harm than to knock him down and stun him, so that the store could be robbed; and if she was present when her husband struck the fatal blow, but gave no intentional assistance to him- then, defendant and her husband being engaged in an attempt to perpetrate a robbery, the jury would be justified in finding her guilty of murder in the third degree." It seems that this instruction was too favorable to the accused, and that she was chargeable (if she acted voluntarily throughout) with the same crime as the husband. Ib.

DRAINAGE OF LAND.

The owner of land on which there is a pond or reservoir of surface water cannot lawfully discharge it through an artificial channel directly upon the land of another, greatly to his injury. Pettigrew v. Evansville.

DYING DECLARATION. See Constitutional Law. EVIDENCE. See Constitutional Law; Railroads, 3; Bills and Notes.

FRAUD.

The time for redemption of land from a tax sale having expired on Saturday, the clerk of supervisors promised the owner's agent on Sunday following that he would not open his office the next day until the regular hour (8 A. M.), and would then give him a fair opportunity to redeem; but, by collusion with the agent of the holder of the tax certificate, he opened the office at six o'clock Monday morning, and executed the tax deed and had it put upon record. Held, that on these facts the tax deed might not only be annulled in equity, but treated as void, for fraud, in ejectment. Mather v. Hutchinson.

HIGHWAY.

1. No action by town officers is necessary to constitute a valid acceptance by the public of land dedicated for a highway; but travel thereon, to such an extent and for such a length of time as to show that the public convenience requires the road, is sufficient; and this time may be less than ten years. Dixon, C. J., dissents. Buchanan v. Curtis.

2. Proof of the owner's declarations after the opening of the road, and during the use by the public relied on as evidence of a dedication, is admissible to show that there was no intention to dedicate. Ib.

3. Objects within the limits of a highway, naturally calculated to frighten horses of ordinary gentleness, may constitute such defects in the way as to render the town liable, even though so far removed from the traveled path as to avoid all danger of collision. Foshay v. Glen Haven.

4. An instruction "that an object existing within the limits of the highway, but leaving the traveled path unobstructed, so that the traveler is safe from collision with it, is not an insufficiency in the way, merely because it exposes the traveler's horse to become frightened at the sight of it, and the town in such case would not be liable" - held erroneous, because, in its most obvious sense, and as applied to the facts in the case, it conflicts with the law as above stated. Ib..

INSURANCE AGAINST FIRE.

1. A policy of insurance was issued upon a factory which was only run during a part of the year, and the answers of the company's printed interrogatories, stating the use of the building and the precautions against fire, were such as, from their nature, were appropriate only to the time during which the mill was run; and the agent who issued the policy was made fully aware of the facts, and himself filled up the application, and wrote down such portions of the applicant's statements as he considered important. Held, that the company, even if it had not expressly made itself responsible for the agent's accuracy, could not avoid liability for a loss incurred during the season when the factory was stopped, on the ground that the answers in the application were warranties that the same state of things should continue during the life of the policy. May v. Buckeye Mut. Ins. Co.

2. The policy in this case, after stating what the application must contain, and that any false description by the assured, or omission to make known any fact material to the risk, shall render said policy void, adds: "But the company will be responsible for the accuracy of surveys made by its agents." Held, that the word 66 survey" must here be construed to include the whole application, when made out by the agent, and the company is thus expressly precluded from taking advantage of his inaccuracy or omission in

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