« AnteriorContinuar »
COURT OF APPEALS ABSTRACT.
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 ivith Dygert v. Remerschnider, 32 N. Y. 631. In Strong * Skinner, 4 Barb., and Tisdale v. Jones, 38 id., the marriages took place before the act of 1819, 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, 041; 25 N. Y. 328). Ib. Opinion by Barnard, J.
INJUNCTION. See Damages.
LIFE INSURANCE. Effect of the civil war on contracts of insurance. - On January 28, 1850, the defendant insured the life of James Sauds 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 anuual premium payable on that day. Sands died July 12, 1802, haring 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 issumg of the proclamation of August 16, 1961, ipso facto (a) destroy the original contract of insurance, or (0) render unlawful its preservation from forfeiture by further payments of premium? (2.) Did the same circumstances ipso facto revoke Muldou's authority as agent? (5.) 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 plantiff's husband for years had paid the premiun to defendant's agent. After the war commenced plaintiff's husband paid to defendant's agent the premiuin. 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.)
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 himseli. Adams 1. Outhouse. Opinion by Allen, J.
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. Ileld, 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.
Authority of. – An 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 B. A. gave D. notice that she had chosen one apright to do so, and brought an action against A. for praiser, and requested him to appoint one to act with breach of covenant of seisin, to recover the value of him in appraising the buildings or improvements upon the buildings. It appeared on the trial at the circuit, the premises; he did so, but they failed to agree upon that said buildings were erected by the tenants the value of such buildings, etc. Nothing further was during an unexpired term of lease to them of the done until the expiration of the lease, when A. brought premises by A.; that said lease was renewed to them, an action of ejectment against C., the sub-tenant of the tenants agreeing to return the premises in as good D., who was in possession of the buildings. Held, that state as found, damages by the elements, etc., excepted. there was no legal or equitable defense to the action. The premises were sold by A. to B. before the expira Scoville v. Maury. Opinion by Allen, J. tion of the lease. Held, that on the renewal of the
EXECUTION. lease, without reservation of the buildings erected, the title to them passed to the lessor, and that the remedy
1. Death of judgment debtor: notice of sale under: of B, was against the person wrongfully removing the
effect of irregularity in. — Where, after judgment, probuildings, and not upon B.'s covenant. Loughram v.
cess is issued for the collection of the judgment by the Ross. Opinion by Allen, J.
sale of the real property of the debtor, and a sale com
menced by the advertisement of the property, the exeCARRIERS.
cution of the process is not arrested by the death of 1. Misrepresentations as to vehicles of transportation. the judgment debtor. Wood v. Moorehouse. Opinion A. contracted with B., as common carrier, to transport | by Allen, J. (Peckham, J., dissenting.) a cargo of rye from Troy to New York, agreeing to pay
2. And the provision of the statute (2 R. S. 368, $ 27), B. five cents per bushel and assume all risks of the voy
that, in case of the death of a party after judgment, age. B. represented his boat as rated as second class on but before execution, no execution shall issue on such the insurance register; but it was found to be rated judgment until one year after the death, does not only as third class, consequently A. was unable to pro
arrest the proceedings upon an execution already cure an insurance on his cargo. He immediately in
issued. Ib. formed B. of that fact, and forbid him carrying the
3. The regularity of a sale of real estate by the rye upon the terms agreed upon. Afterward B. mad sheriff is not affected by the fact that six full weeks an effort to procure an insurance, but failed, and started did not elapse betweeu the first publication of the the boat on its voyage. Navigation was hazardous, and notice of sale and the day fixed for such sale. The within a few miles a collision occurred, which produced statute is complied with by a publication once in each a leak, and the rye was injured. Held, that A. had a week for six weeks before the sale. Ib. right to rescind the contract in consequence of the mis
4. Where it is claimed that a sheriff has not comrepresentation of B. as to the ratable character of the
plied with the statute as to posting notices, the omisboat, and that B., in taking the rye, assumed the risks sion must be proved affirmatively. The officer is preof navigation and the ordinary liability of common
sumed to have done his duty. Ib. carriers. Dauchy v. Silliman. Opinion by Church, 5. Where one purchases in good faith and without C. J.
notice of any omission of the sheriff to give the legal 2. Delivery to connecting line. — The Michigan Central
notice of sale, the validity of his title is not affected Railroad Company contracted as common carriers to
by such omission. He need not be a purchaser for a tako a quantity of wheat from Kalamazoo to Detroit,
valuable consideration. Ib. and deliver it there to a propeller of the New York
FALSE REPRESENTATIONS. Central R. R. line of propellers on Lake Erie. After
IV hat constilutes. — A., by representations made to B., its arrival at Detroit, the Michigan C. R. R. Co. gave
induced B. to sell him goods on credit. The sale renotice according to a custom prevalent with them and
sulted to the damage of B. The referee found upon the carriers who were accustomed to take goods from
trial, that such representations made by A. were false them. This custom was to deposit a written notice of
and untrue, and expressly refused to find further, the presence of the freight in a letter box appropriated
although requested to do so by A. The referee held, to the particular carrier by whose line the freight was
that the law presumed, without requiring further proof. to go. The custom was uniform and fully recognized by
that fraud and intent to deceive were the necessary all connecting lines. No evidence was produced that
concomitants of a false representation, and the loss the plaintiff (the shipper of the wheat) knew of this
sustained thereby. Held, that the referee erred in thus custom. The wheat was destroyed at Detroit, before its delivery to the propeller line. Held, that the rail
bolding, and that the finding of the facts by him did road company were liable for the wheat until its deliv
not contain enough to sustain the conclusion of law.
Meyer v. Amidon. Opinion by Folger, J. ery to the New York line of propellers on Lake Erie. Mills v. Mich. C. R. R. Co. Opinion by Grover, J.
HOTEL AND INNKEEPERS.
1. Liability of, for money and watch and chain stolen EJECTMENT.
from room. — A. was a guest at the Metropolitan hotel, A. demised certain premises to B. for the term of and on retiring for the night he locked the door of his seventeen years, at an annual rent. A. had the elec room, and placed his watch with chain and seal worth tion at the expiration of the term to pay for certain $350, and $50 in money under his pillow. Both money buildings or improvements upon the premises, deduct and watch were stolen during the night. It was shown ing eight per cent from their appraised value, or renew on the trial that a notice was posted in A.'s room, the lease for five years. The appraisal of the buildings to the effect, “that a safe was provided in the hotel for or improvements was to be made by two disinterested the safe keeping of money, jewels and ornaments (as freeholders, to be chosen by each of the parties. The required by the act, to regulate the liability of hotellease - and the term created by it - came, before the keepers). A. brought an action to recover the value of expiration of the term, to one D., by assignment from the watch and also the fifty dollars in money. Held,
that the defendant was not liable for the fifty dollars away. Held, that B. was guilty of a larceny. People in money, having fulfilled the requirements of statute v. McDonald. Opinion by Church, J. by posting notice that he would not be liable for money, 2. It was urged upon the trial that the indictment jewels or ornaments, unless deposited with him for should have been for stealing the draft instead of the sufe-keeping. Held, further, that the defendant was
money. Held, that an indictment for stealing the liable for the value of watch and chain. Rameley v. draft could not be sustained, as A. delivered the draft Leland. Opinion by Allen, J.
to the broker himself, and in contemplation of law he 2. Any property which is useful or necessary to the intended to part with the possession and control of it, comfort and conveniences of the guest, that which is and never expected its return, and it was not in fact usually carried and worn as a part of the ordinary appropriated. Ib. apparel or outfit, or is ordinarily used and is convenient 3. Stress was laid upon the fact that B. indorsed the for use to travelers, as well in as out of their rooms, is draft, and was argued that this gave him a right to left, as before the statute, at the risk of the inn receive the money, and also gave him some interest in keeper. Ib.
it. Held, that the evidence showed that B. had a felo3. A watch is neither a jewel nor ornament, as these nious intent when he indorsed the draft, and that words are used and understood, either in common par the indorsement was a contrivance to get possession lance or by lexicographers. It is not used and carried of the money. Ib. as a jewel or ornament, but as a time piece or chro 4. If money or property is delivered to a person for nometer. It is as useful and necessary to the guest in mere custody or charge, or for some specific purpose, his room as out of it- in the night as in the day time — the legal possession remains in the owner, and a crimiand is, therefore, not covered by the statute. Ib. nal conversion of it by the custodian is larceny. Ib. LANDLORD AND TENANT.
PARTNERSHIP. Consideration. - A. entered into an agreement with 1. Authority of copartner to bind firm.-Partners are B., which, in substance, was as follows: A. had leased not liable for the contract of one of their firm when unto B. a certain building in New York city from the such contract is not within the common enterprise 1st day of October, 1867, to May 1, 1868, and the for which they were associated. Cobb v. Shepard. entire lofts of said building from May 1, 1868, for Opinion by Allen, J. (Grover, J., dissenting.) the term of three years thereafter, unless sooner ter 2. The defendants entered into agreement minated as hereinafter specified, it being stipulated whereby they were to be jointly interested in the purand agreed between the parties hereto as a considera chase of certain lands, and in the cutting and markettion in part of the letting of the premises herein, that ing of the wood on the lands, which was to be done in case at any time prior to the expiration of the said under the direction of one of their number. While term the common council of said city, or any of its carrying on the cutting of the wood, an agent of the authorities, should order the removal of any part of directing partner caused the erection of a saw-mill said building, for the improvement or extension of the upon a part of the land, which part had been purstreet, then the said party of the second part (B.) will chased by such agent. Held, that the building of a not hold the party of the first part (A.) liable for any saw-mill was not, under the agreement to cut and damage he may sustain by reason of such removal; he market wood, within the limits of the agency of the (B.) to receive the award, if any, from the authorities directing partner, and that another partner would not for damage sustained for such unforeseen termination, be liable, as such, for machinery furnished for said and also pay the rent up to the time of such removal, mill. Ib. when this lease shall cease and come to an end. The 3. The use of the note of such other partner, in paytitle of said premises passed to the city at the date of ment for the lands, was no evidence that he was interthe confirmation of the report of the commissioners ested in the purchase. Ib. of estimate and assessment, December 30, 1867.
PROMISSORY NOTES. Under this arrangement B. continued to occupy the premises until January, 1869, when he voluntarily
1. Agreement to extend time for payment. — A. purremoved therefrom. The city did not interfere with
chased of B. a promissory note made by C. A. sued C. the premises until April, 1869. A. brought an action
to recover on the same. C. gave evidence showing, to recover the quarter's rent due February 1, 1869.
that while the note was in B.'s hands an action was comHeld, that B. was liable for the rent of the buildings
menced thereon, and it was agreed between C., B. and up to the time of the removal of them by the city.
plaintiff in the action, that the suit should be disconPhyfe v. Elmer. Opinion by Rapallo, J.
tinued; that C. should pay the costs accrued thereon,
and have during the ensuing month to pay the note. LARCENY.
The costs were paid and suit discontinued. A. brought 1. Of proceeds of draft by indorser. – A. was the his action before the expiration of the time agreed owner of a draft for $2,500, drawn upon a banking upon by the parties to the former action. Held, that house in New York city, which he desired to procure there was no valid agreement to extend the time of the money upon. B. expressed his willingness and payment. Parmelee v. Thompson. Opinion by Allen, J. ability to procure the money for him. He took A. to 2. It is competent for the parties, by a parol agreea broker with whom he (B.) was acquainted, and an ment, to enlarge the time of performance of a simple arrangement was made by which B. was to indorse the contract, and the time of payment of the note in suit draft, and the broker was to procure the money and might have been extended by such agreement made have it at his office on the same day at three o'clock, upon a sufficient consideration. But a promise to where the parties were to come, and A. was to receive extend the time of payment, unless founded on a good the money. B. indorsed the draft and delivered it to consideration, is void. Ib. the broker, with the consent and in the presence of A. 3. A payment of a part of the debt, or the interest Afterward, and before three o'clock, B. came to the already accrued, or promise to pay interest for the broker's office and procured the money and carried it future, is not a sufficient consideration. Ib.
STATUTE OF LIMITATION.
4. If the only consideration for the promise of the recover the price, held, that B., by neglecting to return creditor is the performance by the debtor, or the the mattresses, assented to the performance of the promise to perform some act which the latter is legally contract by A., and that he waived his right to rescind bound to perform, the promise is without considera the same. Pomroy v. Shaw. Opinion by Church, C. J. tion. Ib.
2. A party purchasing goods, after having an oppor5. Waiver by indorser of demand and notice. The tunity to examine them, must then decide whether he liability of an indorser of a note to pay it is in general will accept or reject them. He cannot say that the upon the implied condition that payment thereof shall article is not what he agreed for, but that he will be demanded of the maker at maturity, and, in case of receive it, and pay only such price for it as he may be default, that notice of non-payment shall be given to able to prove it worth. He cannot thus change the the indorser. The right that demand should be made contract, and compel the seller to incur the hazard of and notice given is personal to the indorser, and the losing the substantial benefit of it. Ib. 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 1. As to attorney's services. — The statute does not of the indorser. Sheldon V. Horton. Opinion by commence to run as against the account of an attorAndrews, J.
ney until his connection with the proceeding in which 6. A. was the holder of a certain note a short time he is employed is finally terminated. Mygatt v. Wilbefore its maturity. B., the maker, requested A. to cox. Opinion by Grover, J. hold it for another year. A. called upon C., the in 2. A party who employs an attorney is personally dorser, and stated to him the request of B., and asked liable to him for his services, though acting as a trushim if he was willing to have it held for another year. tee or in a representative capacity in the business in C. consented. The holder of the note allowed it to which he employs him. Ib. mature without demand or notice, and deferred its 3. Where the defendants, who were administrators, collection for the term suggested. Held, that the lia- | employed the plaintiff in a matter connected with bility of the indorser became absolute on the maturity their estate, there being no pretense that the plaintiff of the note, and no subsequent demand or notice at undertook to look to the estate for payment for his any time was required. Ib.
services, they became personally liable therefor. Ib.
WILLS. 1. Appointment of commissioners to locate road:
A. made his will, and, among other devisees, he befailure to give notice. It is the intention of the
queathed to C. and D., severally, a life estate in two general railroad act, that the commissioners, upon the
certain parcels of real property, and after their death petition of one objecting to the proposed location of a
he gave the same in fee to their children; both of them railroad, should have jurisdiction of the entire subject
died in the life-time of the testator, leaving no survivof the location of the road through the county in
ing issue. The question was, whether the heirs of A. which the land of the person applying for the appoint
took this land on the ground that it was not disposed ment is situated. Matter of petition of Long Island
of by the will, or whether the devisees took it under the R. R. Co. Opinion by Andrews, J.
residuary clause, which read as follows: "All the rest, 2. The appointment of such commissioners can only residue and remainder of my property and estate, real be made after all the notices required by law have been
and personal, whatsoever and wheresoever situate, and served, and the fifteen days have expired within which
not herein and hereby specifically devised or bepersons aggrieved may apply for such appointment. Ib.
queathed, I give, devise and bequeath” to certain 3. And where proceedings are commenced before
persons named therein. Held, that there was a reany notice — provided for by section twenty-two of the
mainder in the lands given to (. and D. on the death general railroad law has been served upon one of the
of either of them, leaving no surviving issue, and interested parties, and commissioners appointed under
that such remainder went to the devisees under the such proceedings, the application is premature and
residuary clause, and not to the heirs. Young v. Young. unauthorized, and the subsequent proceedings there
Opinion by Grover, J. under void, and such interested party is entitled to apply for the appointment of a commission, whose appointment will be valid. Ib.
DIGEST OF RECENT AMERICAN DECISIONS. 4. An order of the general term setting aside such appointment of commissioners is appealable. Ib.
SUPREME COURT OF WISCONSIN.*
BIGAMY See Criminal Law. SALE AND DELIVERY. 1. Duty of vendee to return, when articles defective. —
BILLS AND NOTES. A. manufactured upon B.'s order a large number of Evidence of an oral agreement between the parties mattresses, amounting to $2,475.92. The mattresses to a note, at the time it was made, is admissible to were to be of the best quality of hair, and of a specified show a partial or total failure of the consideration, weight, and if they lacked in either element B. was not Smith v. Carter. bound to receive them, or if, on receiving them, he
COMMOX CARRIERS. discovered any defect, he had a right to return them. A railroad company received goods at Pittsburg, Pa., The mattresses were delivered to B., and he accepted destined for Hudson, Wis., stipulating against responsithem. B. alleged that they were deficient in weight, bility as a carrier beyond its own line, but guarantying but neglected to return them, offering A. therefor the that the cost of transportation to Hudson should not price agreed upon, less $500, which he claimed was all exceed a certain sum – less than the aggregate of the they were worth. A. offered to take back the mat
charges on the several lines between Pittsburg and tresses, and refund B. what money he had advanced on them. B. declined the offer. In an action to
* 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
The time for redemption of land from a tax sale guaranty. Held, (1) That this was not a 'through having expired on Saturday, the clerk of supervisors contract.” (2) That even if there had been a “through promised the owner's agent on Sunday following that contract,” the other facts remaining, the rights of the
he would not open his office the next day until the successive carriers would be as hereinafter stated. (3) regular hour (8 A. M.), and would then give him a fair That each carrier after the first might charge and pay opportunity to redeem; but, by collusion with the back charges, at the usual rates; and the last (or the
agent of the holder of the tax certificate, he opened warehouseman who received from it, paying back
the office at six o'clock Monday morning, and executed charges) has a lien on the goods for the total amount
the tax deed and had it put upon record. Held, that of such charges. (4) That the remedy of the shipper is
on these facts the tax deed might not only be annulled against the first carrier, on the guaranty. (5) Whether
in equity, but treated as void, for fraud, in ejectment. the result in this case would be different if the other
Hutchinson. carriers had had notice of the guaranty, quære. Schnei
HIGHWAY der v. Evans. CONSTITUTIONAL LAW.
1. No action by town officers is necessary to consti
tute a valid acceptance by the public of land dedicated Declarations of a murdered person, made “when he
for a highway; but travel thereon, to such an extent was at the point of death, and every hope of this world
and for such a length of time as to show that the pubgone, as to the time, place and manner in which, and
lic convenience requires the road, is sufficient; and the person by whom, the fatal wound was given, are admissible in evidence, notwithstanding the provision
this time may be less than ten years. Dixon, C. J.,
dissents. Buchanan v. Curtis. in the bill of rights as to the right of an accused person
2. Proof of the owner's declarations after the opento “meet the witnesses face to face.” Miller y. The
ing of the road, and during the use by the public relied State. See Jurisdiction.
on as evidence of a dedication, is admissible to show
that there was no intention to dedicate. Ib. CRIMINAL LAW.
3. Objects within the limits of a highway, naturally 1. To sustain an indictment for bigamy it must be calculated to frighten horses of ordinary gentleness, may shown that the first marriage was valid by the law of constitute such defects in the way as to render the the place where it was contracted. Weinberg v. The
town liable, even though so far removed from the State.
traveled path as to avoid all danger of collision. 2. Where, by the law of the place of marriage, it was
Foshay v. Glen Haven. required to be entered into as a civil contract before a 4. An instruction “that an object existing within the magistrate, and the celebration of a religious ceremony
limits of the highway, but leaving the traveled path of marriage without such prior civil marriage was pro
unobstructed, so that the traveler is safe from collision hibited under severe penalties, proof of the religious
with it, is not an insufficiency in the way, merely ceremony, in a prosecution for bigamy, would not because it exposes the traveler's horse to become frightauthorize a presumption that the civil ceremony had
ened at the sight of it, and the town in such case would been performed. Ib.
not be liable - held erroneous, because, in its most 3. If two persons conspire to commit a felony, and, obvious sense, and as applied to the facts in the case, it while they are engaged in prosecuting that common
conflicts with the law as above stated. Ib. design, one of them commits murder, the other is
INSURANCE AGAINST FIRE. guilty of murder also. Miller v. The State.
1. A policy of insurance was issued upon a factory 4. The court, on the trial of the wife in such a case,
which was only run during a part of the year, and the instructed the jury “ that if defendant, without any answers of the company's printed interrogatories, fear or compulsion of any kind from her husband,
stating the use of the building and the precautions agreed with him to go to the store of the deceased and
against fire, were such as, from their nature, were rob it, the husband telling her, and she believing, that appropriate only to the time during which the mill was he did not intend to kill the deceased, but would do
run; and the agent who issued the policy was made him no greater bodily harm than to knock him down
fully aware of the facts, and himself filled up the and stun him, so that the store could be robbed; and
application, and wrote down such portions of the if she was present when her husband struck the fatal
applicant's statements as he considered important. blow, but gave no intentional assistance to him — then,
Held, that the company, even if it had not expressly defendant and her husband being engaged in an made itself responsible for the agent's accuracy, could attempt to perpetrate a robbery, the jury would be not avoid liability for a loss incurred during the season justified in finding her guilty of murder in the third
when the factory was stopped, on the ground that degree.” It seems that this instruction was too favora
the answers in the application were warranties that ble to the accused, and that she was chargeable (if she the same state of things should continue during the acted voluntarily throughout) with the same crime as
life of the policy. May v. Buckeye Mut. Ins. Co. the husband. Ib.
2. The policy in this case, after stating what the
application must contain, and that any false descripThe owner of land on which there is a pond or reser tion by the assured, or omission to make known any voir of surface water cannot lawfully discharge it fact material to the risk, shall render said policy void, through an artificial channel directly upon the land of adds: “But the company will be responsible for the another, greatly to his injury. Pettigrew v. Evansville. accuracy of surveys made by its agents.” Held, that the
word “survey" must here be construed to include DYING DECLARATION. See Constitutional Law.
the whole application, when made out by the agent, See Constitutional Law; Railroads, 3; and the company is thus expressly precluded from Bills and Notes.
taking advantage of his inaccuracy or omission in
DRAINAGE OF LAND.