The Albany Law Journal.

ALBANY, AUGUST 12, 1871.

DYING WITHOUT CONSENT OF INSURERS.

The decision of the supreme court, in the case of Lappin v. Charter Oak Fire and Marine Insurance Company, 58 Barb. 325, challenges attention, if not criticism. The action was brought by an administrator to recover upon a policy of insurance against fire.

The insurance had been effected on certain buildings by the intestate during his life-time for the term of a year from the 7th of December, 1868. On the 21st of July, 1869, the assured died, leaving three infant children. The property was destroyed on the 9th of November following.

The policy contained an agreement, on the part of the defendants, "to make good unto the said assured, his executors, administrators and assigns, all such immediate loss," etc., and provided that the policy should not be assignable before or after loss without the consent of the company manifested in writing thereon; and that, "in case of assignment without such consent, whether of the whole policy or of any interest in it, the liability of the company shall then cease; also, that "in case of any sale, transfer, or change of title in the property insured by this company, or of any interest therein, such insurance shall be void and cease." There was also the further provision, that, "in case of the entry for foreclosure of a mortgage or the levy of an execution or attachment, or possession by another, of the subject insured without the consent of the company indorsed thereon, this insurance shall immediately cease."

The decision of the court, and the grounds therefor, are shown by the following extract from the opinion: "No consent had been indorsed upon the policy by the company at the time of the fire, and there had been long before, not only possession by others than the assured of the subject insured, but a complete change of title also. It seems clear, therefore, that the policy of the insurance, by the most clear and explicit terms and provisions thereof, became void, and ceased to have any binding force upon the death of the assured, and the vesting of the title to the property insured in his heirs at law. That this was a change of title from the assured to others cannot be denied, and it brings the case within the express terms of the policy. The possession of the property insured by others than the assured, without the consent of the company indorsed upon the policy, also produces the same result. It puts an end to the contract, and renders it no longer obligatory."

The case was distinguished from that of Burbank v. Rockingham Insurance Company (24 N. H. 550), on the ground that, in that case, the policy was to become void if the assured property should be

"alienated by sale or otherwise," and that that decision was an authority only to the effect that descent to an heir was not an alienation. Smith v. The Saratoga Mutual Fire Insurance Co., 1 Hill, 497, Phelps v. The Gebhard Fire Insurance Co., 9 Bosw. 404, and Wyman v. Wyman, 26 N. Y. 253, were also held not to be authorities in the case at bar, as in them it was a transfer or termination of the interest of the assured

in the policy, and not in the premises insured, which was to avoid the policy.

If there is any thing in the maxim noscitur a sociis, the correctness of this decision may be doubted. The policy was to be void "in case of any sale, transfer or change of title." Construed by this maxim, the clause would read, "in case of any sale, transfer or similar change of title;" that is, a change of title by the act or agreement of the party, and not by act or operation of law. The same is equally true of the clause "in case of the entry for foreclosure of a mortgage, or the levy of any execution or attachment, or possession by another;" that is, similar or like possession by another.

It should be remembered that these provisions and limitations in the policy were the language of the defendants, and, if there was any doubt as to their meaning, it was not to be extended in their favor by construction. Supposing the words "change of title" to be unmodified by the preceding words, it is not so clear that they would cover this case. Under the civil law the succession of the heir did not operate as a change of title. He was regarded as the same person as the ancestor, and the estate, instead of being changed by the descent, was held to continue in the heir. This is, to a limited extent, the theory of the common law. A recent writer on descents says that the notion that the death of the ancestor begets title to land in the heir is only qualifiedly true. "The title which the heir has in the land, neither takes its origin nor gains any strength in the death of the ancestor." Bing. on Descents, 1.

The decision of the United States district court for the northern district of Ohio, in the case of Starkweather v. Cleveland Insurance Company, 10 Am. Law Reg. 333, is to a limited extent an indirect authority against this case. It was there held that a policy of insurance containing a clause that if the "title of the property is transferred or changed," or, "if the policy is assigned," the policy shall be void, is not avoided by the bankruptcy of the assured and the assignment of his estate to an assignee in bankruptcy, and the consignee may recover on it in case of a loss.

But whether the succession of the heir operated as a change of title or not, we do not believe it was such a change as was contemplated by the parties at the time this contract was made, nor one which can be fairly construed to come within the terms of the policy. The court remarked that there was "no conceivable reason for straining the provisions of the

contract, if we were at liberty to do so, in favor of the heirs at law of the insured." Possibly not, but what conceivable reason was there for straining it in favor of the insurers? The equities were certainly in favor of the heirs, even if, as the court said, they had "paid the defendants nothing."

A SHORT LESSON FOR TRADES' UNIONS. Cheetham's exclamation, "Oh, if ever you workmen get power, God help the world," has been verified by a case which recently came before the supreme judicial court of Massachusetts for decision.

The facts of the case were, that Carew, the plaintiff, a free-stone cutter of South Boston, had large contracts to supply cut stone. Fearing that he might otherwise fail to fulfill his obligations, he sent some of the stone to be cut in New York. This proceeding infringed upon the rules of the "Journeymen Free-stone Cutters' Association," and, although Carew was not a member, and in no way bound by its laws, it was determined to hold him amenable to them. Accordingly the association imposed a fine of five hundred dollars. He refused to pay. Immediately the association commanded his workmen to leave him, which they did, until reduced to the alternatives of paying the fine or failing to meet his contracts, he chose the former.

Having filled his contracts, he brought an action against the association to recover, not only the five hundred dollars which he had paid, but also the damages he had sustained by reason of the "strike." The superior court nonsuited him at the trial, but on appeal the supreme judicial court reversed the decision of the court below, holding that the money had been extorted by an illegal conspiracy, and that the association was liable both for the money paid and the

loss occasioned.

This case may prove useful, not as establishing any new principle of law, but as illustrating a principle. already established but not always understood, viz.: that combinations of all kinds to interfere with trade are illegal. It has been settled, time out of mind, that the law will not permit any one to restrain a person from doing what his own interest and the public welfare require that he should do, much less will it permit a number of persons to combine with a view to the same end. In fact, it has been frequently held to be criminal for persons to conspire to do some acts which, if done by a single individual, would be innocent. For instance, it is lawful for a man to refuse to work for less than a certain price, but combinations of workmen to enhance the price of labor or to coerce other workmen have been time and again held to be indictable offenses. 3 Chitty's Cr. Law, 1163; People v. Fisher, 14 Wend. 9.

This judgment of the Massachusetts court does not interfere with the trades' unions so far as they confine themselves to legitimate objects; nor does it

abridge the right which every man has to control his own labor either as to price or hours. Its meaning and force is, that trades' unions, or any other combinations of men, cannot conspire or attempt to control the actions of others, nor subject them to the will or rules of their confederation. Although this case did not call for a decision of the question, one would not have to look very far for authorities to prove that all "strikes," gotten up by these unions for the purpose of increasing wages, are criminal offenses, and subject the "strikers" to indictment. See Rex v. Bykerdike, 1 M. & Rob. 179; Archibald's Cr. Pl. 507; Commonwealth v. Curlish, Brightley's Rep. 40; Commonwealth v. Hunt, 4 Met. 111; People v. Fisher, 14 Wend. 9. It will go far toward solving the so-called "great problem of labor and capital," if the working men shall come to understand the relative rights of labor and capital. Let them know practically, as well as theoretically, that any attempt on their part to subject others, whether working men or employers, to their confederation, will entail upon them the legal penalties attached to such an offense, and the result will be greatly beneficial to them, as well as to the public.

THE CIVIL LIABILITY OF COMMISSIONERS OF HIGHWAYS.

It is by no means creditable to our legislation that travelers on the public highways of this State are compelled to trust to chance, rather than the law, for safe passage. Most, if not all, the New England States, and many of the western States, have statutory provisions, making towns liable, civilly, for injuries occasioned by defective highways; but, in this State, there is no provision of the kind, although it was settled by the courts nearly a quarter of a century ago, that, in the absence of an express statutory enactment, no liability attached. See Morey v. Town of Newfane, 8 Barb. 645.

To be sure, the commissioners of highways are charged with the duty of keeping roads in repair; but, supposing them to be liable to a civil action at the suit of one injured by reason of their neglect, the conditions necessary to be shown to justify a recovery are such that no action of the kind, in the absence of special statutes, has yet been successful, although often brought. Their liability in any event has been made to depend upon the question whether or not they had the funds needful to repair, the affirmation of which plaintiffs have usually found it impossible to show.

But it is only recently that it has been settled that the commissioners were liable at the suit of one injured, even when they had the necessary funds to repair. Chancellor Kent expressed an obiter opinion in Bartlett v. Crozier, 17 Johns. 439, that such an action would not lie, on these grounds, substantially: 1. Because the duty to repair is not absolute and imperative, but is dependent upon a train of circumstances.

2. Because they are not supplied by law with the funds nor the means to procure them. 3. Because there is no precedent in this State nor in England to sustain a recovery in such an action.

For aught that appears, that opinion was acquiesced in, except in two instances (Adsit v. Brady, 4 Hill. 630, and Smith v. Wright, 24 Barb. 170), up to a very recent period. In Adsit v. Brady, Judge | Bronson laid down the broad proposition that "when an individual sustains an injury by the misfeasance or non-feasance of a public officer, who acts, or omits to act, contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case.' This case was, in turn, challenged by Selden, J., in Weet v. The Village of Brockport, 16 N. Y. 161, and the rule, above quoted, was pronounced "too broad," inasmuch as "it fails to distinguish between a mere neglect of duty and an affirmative act by which some injury is done; and it makes no distinction between officers who owe a duty to individuals, from whom they receive a compensation for the performance of some specific service, and those whose obligations are to the public alone."

The question was again discussed very elaborately by Wright, J., in Garlinghouse v. Jacobs, 29 N. Y. 197, and the conclusion was reached "that town commissioners of highways are, in no event, liable to a private action for a mere neglect or omission to keep the highways of their town in repair," and this appeared to meet the approval of a majority of the judges. The question did not, however, arise in the case, as it was shown that there were no funds.

Thus the matter rested until the case of Robinson v. Chamberlain, 34 N. Y. 389. In that case the defendant was a contractor with the canal commissioners, to keep in repair the first section of the Chenango canal, and the plaintiff was the owner of a boat which was injured on that section by reason of defendant's neglect. Peckham, J., who delivered one of the three opinions, took the ground that the canal was a public highway, and the contractor, in the position of a commissioner of highways, and from these premises, proceeded to demonstrate his liability, and, at the same time, the liability of highway commissioners. Hunt, J., based his opinion on the ground that the contractor was a public officer, and, therefore, liable. Smith, J., was for affirmance on what, it seems to us, was the correct, and only correct, ground in the case, to wit: That the defendant, by his contract, assumed the absolute duty of repairing a public thoroughfare, and was therefore liable, in a civil claim, in behalf of any individual who had sustained special damage as the immediate consequence of his neglect to repair. We apprehend that there could be no question as to the liability of an individual, bound by a certain contract, to keep a road or bridge in repair. In such case the duty would be perfect and binding at all times irrespective of funds, and would be founded on a valuable consideration.

Whereas, in the case of commissioners of highways, the doubt as to their liability has arisen solely from the fact that their duty was contingent, indefinite and "dependent upon a train of circumstances."

It may be well enough to notice, in passing, a remark of Mr. Justice Peckham, in this case, referring to the distinction laid down by Gould, J., in Lane v. Cotton, 1 Ld. Raym. 646, between officers, whose duties are imposed upon them for public purposes only, and those whose duties are voluntarily assumed, with a view to private advantage; he said, "but now, in this age, I think I am safe in saying that offices in general are accepted because the incumbents suppose their worldly condition will thereby be improved, pecuniarily, socially or otherwise. As to the voluntary assumption by contract, or the imposition of certain duties upon an officer, does any one accept an office in this country involuntarily?" As the learned judge was speaking of highway commissioners, he must have overlooked that provision of the statute (1 R. S. 347) which imposes a penalty of fifty dollars on any person who shall refuse to serve in that capacity.

The question, however, has been definitely settled by the commissioners of appeals, in the case of Hover v. Barkhoof et al., which will probably be reported in 44 N. Y. reports. There the action was brought against the commissioners of highways in the town of Florida, county of Montgomery, for injuries sustained by the plaintiff by reason of the falling of a bridge. The unsafe condition of the bridge was shown, and that the commissioners had knowledge of the fact. It also appeared that, by a special statute (ch. 609, laws of 1853), the commissioners were authorized to borrow money to repair bridges without authority from the town; that is, they had it within their power to procure all needful funds for repairs. The court held that they were liable, following the decisions in Adsit v. Brady and Robinson v. Chamberlain. Of course the essential element of that liability, the negligence being proved, was the possession of funds. The court said: "If the defendants had shown that they did not have funds to repair the bridge, and that they could not have caused it to be repaired upon credit, under the statute, then they would have had a clear ground of defense." After a review of some of the authorities, Earl, C., gave this as the conclusion: "I hold, therefore, that commissioners of highways, having the requisite funds in hand, or under their control, are bound to repair bridges which are out of repair, they having notice of their condition. I do not mean to limit the rule to cases where they have actual notice of the condition of bridges, because there may be cases where their ignorance of their condition would be culpable."

Even with this question settled, the responsibility for the safe condition of highways is altogether too uncertain and contingent. The safety of public

thoroughfares is too important to be left to circumstances or to the caprice or discretion of officers. True, the power of these officers for procuring funds has been somewhat increased of late years, but it is not yet sufficient to enable the highway commissioners of four-fifths of the towns in the State to procure the necessary funds to keep in good repair all the roads and bridges in their several towns. And, considering the fact that they have a discretion as to what roads and bridges they will repair, in the absence of means for repairing all, and that, therefore, a person injured by means of a defective highway or bridge must show not only that they had funds enough to repair the particular defect, but all other defects in the town, it follows that there is practically no remedy, civilly, for injuries of this character.

What is needed is a statute imposing the liability upon the towns and making it imperative and absolute.

AMERICAN REPORTS AND REPORTERS. No. VI.

FLORIDA.

Joseph Branch was the first Florida reporter, and published one volume containing the cases from January, 1846, to January, 1847. He was succeeded by James T. Archer, who also issued one volume, and was succeeded by David P. Hogue, who reported the cases, from January, 1849, to January, 1852, in three volumes. From that date to 1859 the reports were continued by Manaud D. Papy, in three volumes; from 1860 to 1867, by John B. Galbraith, in three volumes, and from that date to 1869 by Mr. Galbraith and A. R. Meek, in one volume.

The fact that the laws of most of the southern States have been materially changed since the war, and the difficulty of procuring copies of the statutes since that date, has rendered it impossible for us to ascertain the existing provisions relative to reporters in most instances.

MISSISSIPPI.

The first reports published in this State were issued in 1834, by R. J. Walker, in one volume, and contained the decisions of the supreme court from the organization of the State government in 1818 to the adoption of the new constitution in 1832. The cases from the January term, 1833, to the January term, 1843, were reported in seven volumes, by Volney E. Howard. Mr. Howard was succeeded by W. C. Smedes and T. A. Marshall, who continued the series from the July term, 1843, to the November term, 1850, in fourteen volumes. John F. Cushman was the next reporter, and his seven volumes contain the cases from the January term, 1851, to the April term, 1855. In pursuance of a statute his reports were entitled Mississippi Reports, and were numbered as a continuation of the reports issued by his predecessors, that is, from the twenty

third to the twenty-ninth. James Z. George succeeded Mr. Cushman, and his reports are in ten volumes, and contain the cases from the December term, 1855, to the April term, 1863. He was followed by R. O. Reynolds, the present reporter, who began with the October term, 1864, and has brought the 'cases down to the October term, 1869, in three volumes.

The chancery decisions between the December term, 1839, and the July term, 1843, were reported by John D. Freeman in one volume, and from 1843 to 1853 by Smedes and Marshall in one volume.

There are two peculiarities about these Mississippi reports. The series of each reporter begins with a very bad preface and ends with a very good index to all the cases in the series.

LOUISIANA.

The first reports of this State were prepared and published by Francis Xavier Martin, one of the judges of the supreme court. The first two volumes, published in 1811-1813, are sometimes called Orleans Term Reports, being cases before the supreme court of the territory of Orleans, from 1809 to 1812 inclusive. These were followed by ten volumes of Louisiana term reports, containing the cases down to February, 1823. Judge Martin continued to report in eight volumes, new series, the cases to the March term, 1830.

The reports of Judge Martin were a private enterprise, but, in 1830, the legislature authorized the appointment of a reporter, at a salary of $1,200. Branch W. Miller received the appointment, and continued the cases from 1830 to August, 1834, in five volumes, when he was succeeded by Thomas Currey, who reported, in 14 volumes, the cases to 1841. The five volumes of Mr. Miller, and the fourteen of Mr. Currey, are cited as "Louisiana Reports," and are sometimes bound in ten volumes.

Merrill M. Robinson was next appointed, and reported the cases from the October term, 1841, to 1846, in twelve volumes, cited as Robinson's Louisiana Reports. It was then provided by the legislature that the reports were to be styled the Louisiana Annual Reports, and that each volume was to contain the decisions of a year. Under this arrangement, Mr. Robinson continued to report the cases till April, 1846, in the first four volumes of the Louisiana Annual Reports. The subsequent reporters of these reports were William W. King, who issued two volumes; William Randolph, who issued five volumes; A. N. Ogden, who issued five volumes; S. F. Green, who issued three volumes; and J. Hawkins, the present one, whose last volume, the twenty-second of the annual report series, and the fourth by him, contains the decisions for the year 1870.

The present provisions in the State relative to the reporter are that he shall be appointed by the governor, on the recommendation of the supreme court,

The earliest cases reports in this State were published in Dallam's Digest of the Laws of Texas in 1845. The first reports were the three volumes of Thomas H. Webb and James Duval, containing the cases from 1845 to 1848. In 1849 Oliver C. Hartley became reporter, and reported the cases from that year to 1858, in eighteen volumes, being from the 4th to the 21st in the series of Texas reports. Mr. Hartley was succeeded by George Moore and Richard S. Walker, who continued the cases in three volumes, to 1860. George W. Paschal reported one volume, containing the cases of the latter part of 1860. Charles L. Robards and A. M. Jackson reported the cases from 1861 to 1865, in two volumes, and Mr. Paschal, the present reporter, has continued the series to 1869, in four volumes, making thirty-two volumes in the entire series.

ARKANSAS.

Albert Pike was the first reporter in this State. His reports, five in number, contain the decisions of the supreme court from 1837 to 1842. E. H. English followed with eight volumes, containing the decisions to 1853. L. E. Barber succeeded, and published the decisions to 1867, in eleven volumes. The present reporter, N. W. Cox, has issued one volume, containing the cases to the December term, 1869, and being the twenty-fifth Arkansas Report.

TENNESSEE.

The earliest reports of this State are two volumes of the decisions of the supreme court of the State (also the decisions of the federal courts in the district), published by John Overton in 1813, 1817, and containing the cases from 1791 to 1815. In 1814 William W. Cooke published a volume of cases adjudged in the supreme court of errors and appeals, and in the federal courts for the district of West Tennessee, from 1811 to 1814.

This was followed by the reports of John Haywood, one of the judges of the supreme court of errors, which contained the cases decided in that court between 1816 and 1818, in three volumes. This Mr. Haywood was the same who a few years previously had reported two volumes in North Carolina, and his last three volumes were numbered three, four and five in the series, with the three North Carolina Reports. In 1824 Jacob Peck, one of the judges of the court, published one volume, containing the cases between the September term, 1822, and the May

term, 1824. This was followed by a volume of John H. Martin and George S. Yerger, containing cases from 1825 to 1828.

By an act of 1831, the legislature created the office of reporter, and provided that he should have the profits on his book as his compensation. Under this law Mr. Yerger was appointed reporter, and commenced with the cases of that year. On the re-organization of the government under the constitution of 1835, provision was made for the appointment of an attorney-general, whose duty it was made, among other things, to report the decisions of the supreme court. Mr. Yerger was appointed the attorney-general, and continued his reports down to and including the December term, 1837, having issued in all ten volumes. Mr. Yerger resigned his office, in 1838, and Return J. Meigs was appointed attorney-general and reporter, and reported the decisions of the supreme court for the terms of 1838 and the early part of 1839.

West H. Humphreys succeeded Mr. Meigs, and reported the cases between the December term, 1839, and the April term, 1851, in eleven volumes. William G. Swan followed, who reported the decisions of 1852, 1853 in two volumes. Then followed the five volumes of John L. T. Sneed, which contain the decisions from 1853 to 1857. Mr. Sneed was followed by John W. Head, who reported, in three volumes, the decisions from 1858 to 1860. Thomas H. Coldwell succeeded, and issued seven volumes, bringing the cases down to the April term, 1870. Joseph B. Heiskell is the present reporter. He has issued one volume, containing the decisions of the supreme court for the eastern division for the year 1870.

THE UNITED STATES STATUTES REVISION.

The commissioners for revising the statute law of the United States have had printed the drafts of three titles or divisions of their work, viz.: "Crimes," "The Legislative Power" and "The Executive Power." The first was drafted by Commissioner Victor C. Barringer, and the other two by Commissioner Benj. Vaughan Abbott. These drafts have been quite extensively circulated among the profession for examination and suggestions, and will be hereafter revised before submitted to congress.

The title on crimes is divided into nine chapters, as follows: (I.) "General provisions;" (II.) "Crimes against the existence of the government;" (III.) "Crimes arising within the maritime and territorial jurisdiction of the United States;" (IV.) "Crimes against justice;" (V.) "Crimes against the operation of the government," under which are forgeries and frauds, etc., counterfeiting coin and postal crimes; (VI.) "Official misconduct;" (VII.) “Crimes against the elective franchise and the rights of citizens;" (VIII.) "Punishment of accessaries;" (IX.) "Concerning discipline and treatment of prisoners."