Imágenes de páginas

The evil will reach the plaintiff, if at all, through the the constituted authorities will do their duty and poisoning and iufection of the air, and not from any adopt some plan to remove it. Such a plan the court discharge of sewerage upon his lands or any deposits below suggests, involving a very serious increased exof it there by the river currents.

pense. That ought not to be forced upon the city unThe findings plainly disclose two characteristics of til some present necessity shall compel. the apprehended danger. It is not imminent, and it To sustain this judgment would pusb our authority is wholly contingent and not inevitable. No immedi- beyond its limits, and hamper official bodies making ate danger exists. It is found to be possible within public improvements beyond reason. one or two years, but not certain to occur sooner than So much of the judgment of the General Term as is in three years.

appealed from should be reversed, the injunction disEvery finding which proguosticates threatened evil solved, and a new trial granted, costs to abide the is qualified by the phrase “in time," which limits it to event. some indefinite future period; and when the findings All concur. seek to fix that, they postpone it as a certain danger Judgment reversed. for three years. But they leave it then merely a contingency, depending, as the findings express it, upon the condition that the branch sewers “should be mainly used by the inhabitants" of the adjoining LUNATIC INDORSEMENT INNOCENT PURstreets. Nobody knows when they will be so "mainly

CHASER. used." Houses which have their own cess-pools and privy vaults may not for many years be fitted with

CIRCUIT COURT, DIST. NEBRASKA, JUNE 7, 1886. modern closets and sewer connections. Such improvements are beginning to be questioned for their own

ANGLO-CALIFORNIA BANK Y. AMES.* evils and dangers, and may come slowly, and no evidence or finding indicates the probable period. The The indorsement of a certificate of deposit by an insane per. contingency as to time is further made to “depend son, in whose favor it was drawn, obtained by fraud, car. very much upon the quantity of water used in the ries no title, even to an innocent purchaser. sewer."

The twenty-sixth finding of the trial judge explicitly AT law.

declares that “the peruicious effects of the depositing

J. W. Savage and Dwight Hull, for plaintiff. sewer matter at this point, and the time when such will be selt, are dependent upon various uncertain fu. J. L. Webster, for defendant. ture events;" and this shows tbat the evil itself and

BREWER, J. This was an action on a certificate of the date of its appearance, are alike contingent and deposit. It was tried by a jury, and a special verdict not inevitable. The danger therefore which can alone

returned. The plaintiff claims as a bona fide purchaser support this injunotion is in the air of an uncertain

of the paper. The bank, maker of the certificate. and indetinite future. Its possible coming rests upon

brought the money into court, and left the issues to opinion and speculation. It is both doubtful and re

be tried between the plaintiff and the defendant, mote. Experience only can test the question satisfac

Ames, the payee and indorser of the certificate. The torily, and meantime a carefully planned system of jury found that Ames at the time of the indorsement sewerage, meant to secure health and cleanliness to a

was of unsound mind, and did not know what be was growing city, is maimed and disjointed.

doing; that the indorsement was obtained by fraud Such a result, it seems to us, ought not to be sustained. The restraining force of a court of equity ation therefor. Of these facts the bank was ignorant

and deceptiou, and that Ames received no considershould very rarely, in the absence of fraud or bad

wheu it purchased. faith, set itself above the discretion and judgment of

The question therefore is between a lunatic and an administrative officers to whom the law commits a decision. High Inj., $ 1270. And this for the evident innocent purchaser of his paper. How far the conreason that a reversal of their judgment is but saying tract of a lunatic, not as yet under guardianship, can

be enforced, may not be clearly settled. When full that the court judges differently upon what has been

consideration has been given, and the contract made intrusted to another discretion, and simply confronts

in good faith, the mental infirmity has often been disthat opinion with its own. And where the evidence

regarded, and the contract enforced. Yet obviously, is conflicting, and the injury doubtful, eventual or contingent, the tribunal intrusted by the law with the

on principle, any promise of such a person lacks the

essential element of a contract, to-wit, assent. As plan and execution ought not to be overruled. Hill. Inj., 305; Swett v. City of Troy, 62 Barb. 630. “Injury, 20: “Looking at the subject in the light of reason, it

said by the Supreme Court in Dexter v. Hall, 15 Wall. material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or

is difficult to perceive how one incapable of underprobable results of the actions sought to be restrained.

standing or acting in the ordinary affairs of life can

make an instrument the efficacy of which consists in People v. Canal Board, 55 N. Y. 397. The injury described in the findings before us is problematic, dis

the fact that it expresses his intention, or more proptant, merely possible. Consistently with all their erly, his mental conclusions. The fundamental idea averments it may never occur, and it is only prophe- minds, but a lunatic, or a person non compos mentis,

of a contract is that it requires the assent of two sied upon the basis of the happening of certain contin- has nothing which the law recognizes as a mind, and it gencies which may or may not arise. Meantime a plan of improvemeut, looking to the health and comfort of

would seem therefore on principle, that he cannot the city and its inhabitants, adopted in good faith by

make a contract which may have any efficacy as

such." the municipal authorities, with the aid of an engineer not claimed to be incompetent or unskillful, is stopped lack of ability to distinguish difference of mental con

One great difficulty in this class of cases lies in our and dismembered, and the branch fewers left useless to the inconvenience of all desiring their benefit. For

dition and the paucity of language to accurately dethree years at least, and very probably for a louger faculties seem all unbalanced, in whose chambers of

scribe such differences. Between him whose mental period, the findings leave it certain that no evil will result; and if upon actual experiment, it is found that thought chaos reigns supreme. confusion worse conno sources of dauger exist, it must be presumed that

*27 Fed. Rep. 727.

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founded," and him but a single wheel of whose men- without fraud, and upon a proper consideration. tal mechanism is out of gear, there is a world-wide There must be a limit to the civil responsibility of perdifference, and yet both are classed as persons of un- sous of unsound mind; otherwise their property sound mind. We determine one's mental condition would be at the mercy of unsorupulous and designing ouly from his words and acts; yet often how difficult men. If the holder could recover against one who it is to look through the outer life to the inner soul? was insane when he indorsed or made the note withThe craziest reason correctly-speak and aot sensibly out consideration therefor, no wider door could be -upon some subjects; while there are others so many opened for the swindler to despoil such helpless perof whose mental processes are rational, and so few un- Bons of their estates. An infant who makes or inbalanced and in confusion, that we hesitate to declare dorses a note may, by his representative, plead his them incapable of self control, and irresponsible for infancy as a complete defense. In like manner a lunatheir actions and contracts. Is it strange, in respect tic may plead insanity and want of consideration. to such a person, that when every thing seems to have The consideration respects himself, not the holder been fairly done, and a full consideration passed, the who may have given value to the indorser. If the fact. courts have spoken lightly of the mental infirmities, that the holder had paid value were enough, the lunaand upheld the contract? On the other hand, when tic could not defend for fraud upon him, or for want gross injustice has been done, especially when the of cousideration. Then an innocent holder could remental incapacity is obvious and pronounced, the in- cover, though the judgment would sweep away the clination has been to denounce the wrong, and protect | lunatio's entire estate, and he had not been benefited the unfortunate imbecile from the rapacity of the a farthing; nor would a nominal sum be sufficient. It willful spoiler. Such is this case. The defendant was is said that the law protects those who cannot proof unsound mind. He received nothing. He knew tect themselves; but it would be sorry protection if not what he was doing. His contract was obtained by one holding a valid note against a helpless man îor fraud and deception. There is not a single feature four thousand dollars could get it renewed for ten which would give the slightest excuse for upholding thousand dollars, aud recover the full amount of the the transaction as between the immediate parties. renewal vote.'"

Does the plaintiff, as a bona fide purobaser, occupy McClain v. Davis, 77 Ind. 419, was a case where a any better position than the wrong-doer from whom promissory note was obtained from an insane man to it purchased ? Doubtless it is entitled to all the pro- cure him of a disease, as in the case at bar. The note tection given to such a purchaser of negotiable paper; came into the hands of a bank, for value, without but such protection does not extend to an indorse- notice. The court say: “There was nothing received ment like this. There was no valid contract of in- in consideration of the contract under consideration dorsement created by defendant's signature on the of which it can be said that restitution should be back of the paper. It was no better than a signature made before a disaffirmance should be permitted; and written in a state of somnambulism, or even than a it ie no objection that the pote had passed, before ma. forgery. No negligence is imputable, for oue who is turity, into the hands of an indorsee. Commercial incapable of prudence cannot be guilty of negligence; paper is not an exception to the rule which permits a nor can there be an estoppel. He who is legally dis- disaffirmance by any one who was of unsound mind at abled to act cannot be estopped from denying that he the time of becoming a party thereto. The purohaser has acted. An estoppel creates no power; and while of such paper takes with constructive notice of all legal in favor of a bona fide purchaser inquiry is denied as disabilities of the party, such as ipfancy, coverture, to equities between prior parties, yet such protection and unsoundness of mind. 1 Pars. Notes & Bills, 149, does not cut off inquiry into the contractual capac- 150; Edw. Bills, 63, 69." ity of those parties. Such at least is the better doc- See also 1 Dan. Neg. Inst., $ 210, in which the autrine, although it must be conceded that there are

thor says:

"No matter how perfect the note may be authorities to the contrary, especially in the Euglish in form, it would be void in the hands of every person courts.

however innocent, as against the imbecile or lunatic." The case of Wirebach v. First Nat. Bank, 97 Penn. See also Burke v. Allen, 29 N. H. 106. 543; 8. C., 39 Am. Rep. 821, is a late case, in which this I think judgment should be entered on the special subject received consideration. In it we find this verdict in favor of the defendant. language: “The question now presented is, will an [Compare Fay v. Burditt, 81 Ind. 433: S. C., 42 Am. action lie on the accommodation indorsement of a Rep. 142; Rusk v. Fenton, 14 Bush, 490; S. C., 29 Am. promissory note by a lunatic? If the determination Rep. 473.-ED.) of this was not made, it was clearly indicated, in Moore v. Hershey, 9 Nor. 196. There the action was

INNKEEPER-LIEN FOR BOARD— PROPERTY OF by an indorsee against the maker of a promissory

note, and evidence was offered to prove that the

maker had received no consideration for the note;
which fact the plaintiff had admitted in conversation,

proof having been made that the maker was insane.
But the offer was rejected, the court below ruling that
as the note in suit was commercial paper, and the

plaintiff a holder for value,the consideration could not An innkeeper who receives a piano in his character as inn-
be inquired into. This was held to be error. Paxson, keeper, and as the property of his guest, is entitled to his
J., said: “We place our ruling upon the broad lien against the piano for board and lodging furnished his
ground that the principle of commercial law above re- guest, although the piano is in fact the property of a
ferred to does not apply to commercial paper made by

third person.
mad-men. * * * The true rule applicable to such

Wm. Kaiser, for appellant.
cases is that while the purchaser of a promissory note
is not bound to inquire into its consideration, he is

Wm. M. Ramsay and G. G. Bingham, for respondaffected by the status of the maker, as in the case of a

ent. married woman or a minor. In neither of these cases LORD, J. This suit was instituted by the plaintiff, as can he recover against the maker. In the case of a an innkeeper, to enforce a lien against a piano, put in lunatic however he may recover, provided he had no his possession by the defendant, as his guest, for a kuowledge of the lunacy, and the note was obtained debt due for lodging and entertainment. By the facts

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stipulated, it is admitted that the relation of innkeeper and why not a piano-forte? If therefore the innkeeper aud guest existed between the plaintiff and defendant be liable for the loss, it seems to follow he must also when the plaintiff, at the request of the defendant, have a lien upon them. And if he has a lien upon paid the freight charges on the piano, and took it into them as against the guest, the two cases cited (and his custody; that the piano was in fact the property of there are more) show that if the thing be brought by a third person, who bad consigned it to the defendant the guest as owner, and the landlord takes it-takes it to sell on comunission; but that the plaintiff did not in thinking it is the guest's own-he has the samo know it was the property of such third person, but re- rights against the stranger-the real owner-as against ceived it in his character as an innkeeper, and as the the guest.” Upon appeal from the decision of this property of his guest.

case, in Threfall v. Borwick, L. R., 10 Q. B. 210, it was L'pon this state of facts we are to inquire whether held, affirming the decision, that whether the dethe piano is chargeable with an innkeeper's lien for fendant, as innkeeper, was bound to take in the piano board and lodging furnished his guest. At common or not, having done so he had a lien upon it. ' law the liability of an innkeeper for the loss of the Although there are certain dicta, not necessary to goods of his guest is special and peculiar, and like that the decision, in Broadwood v. Granara, supra, to the of the common carrier, is founded on grounds of pub- effect that the innkeeper was not bound to receive the lic policy. It must not however be confounded with piano, yet the real ground of the decision was based on that of a common carrier; the liabilities, though sim- the fact that the inukeeper knew that the piano sent ilar, are distinct. Clark v. Burns, 118 Mass. 275; S. C., to his guest was the property of a third person, and 19 Am. Rep. 456; Schouler Bailm. 259. Whatever con- did not therefore receive it as part of his guest's troversy may exist in the judicial mind as to the true goods; that the right to subject the piano to his lien measure of the innkeeper's responsibility, it cannot be was denied; but e converso, if he had not known tho denied that his liability for the loss of the goods of his piano was the property of a third person, and bad reguest is extraordinary and exceptional. Schoulerceived it as the property of his guest, would not his Bailm. 261, and notes; Coggs v. Bernard, 1 Smith lien have attached? It is not material whether the Lead. Cas. (Am. notes) 401. Compelled to afford en- innkeeper is bound to receive such property or not, tertainment to whomsoever may apply and behave although it is said the liability may be well extended, with decency, the law, as an indemnity for the extra- according to the advanced usages of society; yet if he ordinary liabilities which it imposes, has clothed the does receive it as the property of his guest, and thereby innkeeper with extraordinary privileges. It gives becomes liable for it, he must be entitled to his lien. him, as a security for unpaid charges, a lien upon the Threfall v. Borwick, supra. Whenerer by virtue of property of his guest, and upon the goods put by the relation of innkeeper and guest, the law imposes this guest into his possession. Overt. Liens, 129. Nor is extraordinary responsibility for the goods of the guest, the lien confined to property only owned by the guest, it gives the innkeeper a corresponding security upon but it will attach to the property of third persons, for the goods put by the the guest into his possession. whom the guest is bailee, provided only he received It is true that the piano was shipped to the defendthe property on the faith of the innkeeping relation. ant in his name, but he brought it to the inn as his Schouler Bailm. 292; Calye's case, 1 Smith Lead. Cas. property; or at least it was brought there at his re219; Munning v. Hollenbeck, 27 Wis. 202. But the lien quest, and upon his order, and put in the custody and will not attach if the inukeeper knew the property possession of the plaintiff as the property of his guest. taken in his custody was not owned by his guest, nor It is admitted that the plaintiff received it as an innhad he any right to deposit it as bailee or otherwise, keeper, and safely kept it as the property of his guest; except perhaps some proper charge incurred against nor is it doubted but what he would have been liable the specific chattel.

for its loss; and in such case it is difficult to perceive In Broadwood v. Granara, 10 Exch. 417, the inn- upon what principle of law or justice he can be denied koeper knew that the piano sent to the guest did not his lien. belong to him, and did not receive it as part of the The judgment must be affirmed. guest's goods, and it was on that ground alone he was Waldo, C. J., concurring; Thayer, J., dissenting. held not entitled to his lien. But in Threfall v. Borwick, L. R., 7 Q. B. 711, where the innkeeper had received the piano as part of the goods of his guest, it NEW YORK COURT OF APPEALS ABSTRACT, was held he had a lien upon it. Meller, J., said: " When having accommodation, he has received the CLOUD ON TITLE -- JURISDICTION EVIDENCE. guest, with his goods, and thereby has become liable Plaintiff by his complaint alleged that he was the for their safe custody, it would be hard if he was not owner of premises in dispute, and asked that the deto have a lien upon them; and under such circumstan- fendant deliver up a tax deed under which the latter ces, the lien must be held to extend to goods which he occupied, and that the clerk of arrears cancel it, and might possibly have refused to receive.” Lush, J., all records relating to it in his office. Plaintiff's only said: “I am of the same opinion. The innkeeper's proof of title was a deed from one Foley, as referee lien is not restricted to such things as a travelling duly appointed in a decree in partition entered at a guest brings with him in journeying; the contrary has | Special Term, July 31, 1882. The complaint and the been laid down long ago. It extends to all goods the proof showed that defendant, Townshend, was at the guest brings with him, and the innkeeper receives as time of the decree, and a long time prior, in possession his. If he has this lien as against the guest, the cases under a deed dated September 13, 1873, from the compbave established, beyond all doubt, that he has the troller of New York, under city assessment sale. Held, same right as against the real owner of the article, if (1) that the proof was inadequate to establish any title it has been brought to the inn by the guest as owner." in the plaintiff as against a stranger to the action in To the same effect, Quain, J., said: There is no au- which it was given. (2) It is further urged by the apthority for the proposition that the lien of the inn

pellant that the facts disclosed on the trial did not keeper only extends to goods which a traveller may be show any right on the part of the respondent to equitaordinarily expected to bring with him.

* The

ble relief. We think this point also is well taken. The liability, as shown by the old cases, extends to all only ground alleged from the relief demanded was the things brought to the iun as the property of the guest, want of an adequate remedy at law, and yet the facts aud so received, even a chest of charters or obligations, stated showed presumptively the existence of such a


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remedy, and the falsity of the averment. No reason them. Upon the trial the plaintiff was nonsuited by
is averred in the complaint why the plaintiff could not the court below upon the ground that there was no
obtain all of the relief to which he was entitled by an cousideration for the promise to pay commissions. We
action of ejectment, and an examination of the fiud- think the judgment was properly ordered upon that
ings and evidence shows that none iu fact existed.ground, and that it can also be sustained upon the
Phillips v. Gorbam, 17 N. Y. 270. The complaint was ground of the fraudulent suppression of the material ·
manifestly insufficient in this respect. Bookes v. Lan- facts by the plaintiff in making the contract, as well
sing, 74 N. Y. 443; Ocean Bauk v. Olcott, 46 id. 19; as that it was contra bonos mores. The plaintiff, while
Allerton v. Belden, 49 id. 378; Venice v. Woodruff, 62 ) assuming to act for the defendants in obtaining the
id. 467. We have been unable to find any case where a contract of sale, was in fact under equal obligations to
party out of possession has been allowed to sustain an competiug dealers to assist them in effecting the same
action quia timet to remove a cloud upon title, except sale. Thus if plaintiff's services could have been of ad-
when it was specially authorized by statute, or when vantage to any one, he was under the necessity of being
special circumstances existed, affording grounds for treacherous to one employer or another. An agent is
equitable jurisdiction aside from the mere allegation held uberrima fides in his dealings with his principal,
of ownership of the legal title. Indeed the right to and if he acts adversely to his employer in any part of
appeal to a court of equity in such cases was originally the transaction, or omits to disclose any intent which
based upon the assumption that the legal title to the would naturally influence his conduct in dealing with
property in dispute had been established by an action the subject of the employment, it amounts to such a
at law, and jurisdiction was entertained solely for the fraud upon the principal as to forfeit any right to
purpose of proteoting the party in the enjoyment of compensation for services. Story Agency, $$ 31, 334 ;
rights in possession thus legally established; and while Story Eq. Jur., $ 315; Ewells Evans Agency, 368; Dun-
the jurisdiction has in the course of time been some- lap Paley Agency, 105, 106; Carman v. Beach, 63 N. Y.
what extended, it has never been stretched to cover 97, 100. It is an elementary principle that an agent
cases brought merely to establish a legal title to recover cannot take upon himself incompatible duties or char-
possession alone. Spencer Eq. Jur, 658; Story Eq. Jur. acters, or act in a transaction where he has an adverse
(11th ed.), $ 711; Adams Eq. 199; Pom. Eq. Jur., ss interest or employment. New York Cent. Ins. Co. et
1395-1399. In all the cases cited to the effect that equity al. v. Pro. Ins. Co., 14 N. Y. 85; Ewell's Evans Agency,
will entertain jurisdiction to set aside assessments and 14; Greenwood v. Spring, 54 Barb. 375; Neuendorff v.
conveyances as a cloud upon title when the invalidity World Mut. Life Ins. Co., 69 N. Y. 389. In such a case
of the alleged title or incumbrance does not appear he must necessarily be unfaithful to one or the other,
upon the face of the conveyance or proceeding, and as the duties which he owes to his respective princi-
requires extrinsic evidence to demonstrate its exist- pals are conflicting and capable of faithful perform-
ence, the party bringing the action was in possession ance by the same person. The plaintiff in this case
of the property, or other circumstances gave equitable was a bidder for the contract, and if he succeeded in
jurisdiction. Scott v. Onderdonk, 14 N. Y. 9; Hatch obtainiog it bimself and had not the piles to fulfill it,
Y. City of Buffalo, 38 id. 276; Fonda v. Sage, 48 id. he was under equal obligations to several different per-
173; Marsh v. City of Brooklyn, 59 id. 283. When the sons to employ their piles in its performance. Some
invalidity of the disputed titlo appears on the face of or all of his principals must have been disappointed
the conveyance, or in any proof which the claimant is by him, and he would have been under the necessity
required to produce in order to maintain an action to of violating his obligations to some of his employers.
establish it, no suit whatever can be maiutained in Such conduct is violative of the plainest principles of
equity to set it aside, because it is said that a title ob- morality and fair dealing, and cannot be sustained by
viously void does not constitute even a cloud upon the a court of justice. Neither does the proof show that
title of the true owner. Lattin v. McCarty, 41 N. Y. he rendered any service to the defendants in affecting
107, and Remington Paper Co. v. O'Dougherty, 81 id. the sale. His situation rendered him incapable of serv.
474, distinguished. June 1, 1886. Moores v. Town- ing the defendants to advantage, even if he had desired
shend. Opinion by Ruger, C. J.

to do so, but the evidence fails to show any effort on

his part to sell the defendant's property. He did atCONTRACT-PUBLIC POLICY--AGENT FOR COMPETING

tempt to sell his own property or secure the contract PARTIES. - The plaintiff, a timber broker, learning that

for furnishing piles, but whether this was done for dethe Hamburg-American Packet Company was about

fendants' benefit or not does not appear. As we have to build a pier, requiring a large number of piles in its

seen, he was under contract obligations to others as construction, and to advertise for bids from timber well as to the defendants, and it does not lie in his merchants to supply them, visited the several dealers

mouth to allege that he intended to defraud others in such materials in New York and Brooklyn and ob

for the benefit of the defendants. There was no evitained prices therefor, and under the inducement that he would act for them respectively in securing a sale

donce showing a performance by the plaintiff of the

obligations of his contract with the defendants, and of piles, obtained promises from each that if he se

he was therefore properly nonsuited on the trial. cured a sale for such dealer he should receive a com

June 1, 1886. Murray v. Beard. Opinion by Ruger, mission of twenty-five cents on each pilo sold. He

C. J.
did not inform the dealers of the name of the intend-
ing purohaser, or the fact that a contract could only be

CRIMINAL LAW-LARCENY-DISTINGUISHI ED obtained by competitive bidding, or that he had ef- CONVERSION.-A fraudulent conversion of the profected a similar understanding with other dealers.

ceeds of property placed in defendant's hands to enaThe company soon thereafter issued proposals for the ble him to procure a loan upon it, is not larceny of supply of the piles, and sent invitations to dealers

the property. June 1, 1886. People v. Cruger. Opingenerally, among whom were the defendants, to com

ion by Danforth, J. pete for a contract for the piles required. A number of DAMAGES-WHEN PARTY INJURED MUST LESSEN-POpersong, among whom were the plaintiffs, the defend- LICEMAN SUING FOR SALARY.–The plaintiff was a poants and other dealers,submitted bids for such contract, liceman in the city of Brooklyn,duly appointed to that and after a canvass of such proposals by the company's office, and having entered upon the performance of engineer, be awarded the contract to the defendants. his duties. He was attempted to be removed from The defendants having refused to pay the plaintiff's office by the police commissioners, but upon a certioclaim for oommissions, this act was brought to recover rari the order was reversed, and the plaintiff restored

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to his office. Between the order of removal and that to such proof as would afford reasonable assurance of restoration he rendered no service as policeman, that their liability for loss existed, but where the polbecause not permitted so to do, but during the inter- icy does not require specific information, uothing more val resumed for a time his old occupation as a machin- can afterward be required. The company did howist, and that failing, engaged in work at Schutzen ever prepare inquiries upon the points named in the Park, the character of which is not disclosed; and policy, and they were answered. They had from the from these two sources earned during the period of claimant the time of death, its remote and its immehis removal the sum of $500. The defendant conceded diate cause. They also had much other information, that plaintiff was entitled to recover the unpaid salary to which the terms of this policy make no allusion. of his office, but insisted that his earnings of $500 They had from a friend of E., and from the undertaker should be applied upon and deducted from it. The who buried him, positive statements on oath as to his rule sought to be applied by the city to the claim of death and actual burial, and his identity with the perthe plaintiff finds its usual and ordinary operation in son insured. They suggested no defect in these recases of master and servant and landlord and tenant; spects. Nor was any suggested on the trial. The relations not at all analogous to those existing be-claim was that the copy of the proceedings on the intween the officer and the State or municipality. The quest given, in addition to the proof required by the rule iu those cases is founded upon the fact that the policy, made out a case of suicide, and required the action is brought for a breach of contract, and aims to plaintiffs to show the contrary, I can discover no recover damages for that breach or compensation for principle upon which such a proposition can stand. the servant's loss actually sustaived by the default of The policy makes no provision for it. The original the master. That loss he is required to make as small proceedings would not be evidence upon the issue. Its as he reasonably can. His discharge without just verity is not admitted by the claimant; it is denied. cause is not a license for voluntary idleness at the ex- It could not have been required by the defendants; it pense of the master. If he can obtain other employ- was not adopted by the plaintiffs, but out of what meut he is bound to do so, and if he engages in other must now seem ill-advised courtesy was furnished to service, what he thus earns reduces his loss flowing the defendants at their request. It contained matter, from the broken contract. But this rule of damages which if properly substantiated, would have availed has no application to the case of an officer kuing for the defendants in maintaining an affirmative defense, his salary, and for the obvious reason that there is no but in no view suggested to us by the learned counsel broken contract or damages for its breach where there for the respondents, could it, as now presented, is no contract. We have often held that there is no change the burden from them to the plaintiffs. If by contract between the officer and the State or munici. any process of reasoning any part could be taken as an pality by force of which the salary is payable. That admission of the plaintiffs, it must be taken as a belongs to him as an incident of his office, and so long whole, and so taken, is no concession of auy fact, but as he holds it; and when improperly withheld he may a mere communication of hearsay evidence, the truth sue for it and recover it. When he does so he is enti- of which is at the same time denied, enough to put the tled to its full amount, not by force of any contract, defendants upon inquiry, but in itself is no answer to but because the law attaches it to the office; and the plaintiff's claim, even in the first instance. Insurthere is no question of breach of contract or resultant ance Co. v. Newton, 22 Wall. 32, distinguished. The damages out of which the doctrine invoked has insurer raised no issue to the preliminary proofs of grown. We think therefore it has no application to death, and they were in all respects complete without the case at bar, and the courts below were right in re- the statement as to the coroner's inquest. Its confusing to diminish the recovery by applying the wages tents formed no part of the representations of the earned. Juue 8, 1886. Fitzsiminons v. City of Brook-claimants, the statements were not sworn to by them, lyn. Opinion by Finch, J.

nor presented as worthy of belief. They were in no

respect bound by them. June 1, 1886. Opinion by INSURANCE --LIFE-PROOFS OF DEATH-SUICIDE

Danforth, J. BURDEN OF PROOF-CORONER'S INQUEST.-In ap action to recover on a life policy the burden of proof is on MARRIAGE-DIVORCE - FAILURE TO PROVE MARthe company to establish the defense of suicide. De- RIAGE.--In an action for divorce it is incumbent on fendant introduced in evidence the proofs of death, to the plaintiff to prove that the parties to the suit are the sufficiency of which no question was raised, and to husband and wife. And if the evidence given by the which was attached a record of a coroner's inquest, plaintiff shows that their connection at first was illeshowing that death was caused by suicide, the verity gal, and that its continuance depended upon nothing of which the plaintiff denied. No other proof as to more binding than the will of the defendant, 10 di. the cause of death was offered. Held, that the state- vorce can be decreed. That the union between the ments were not prima facie evidence of death by sui- | parties was at first illegal is conceded; if a change occide,and the ruling of the trial court to that effect, and curred, it was followed by no formal celebration, nor that the burden of proof was on the plaintiff to show is there evidence of any present agreement to take the contrary, was error. Iu the first place the com- each other for husband and wife, and that they ever plaint alleges and the answer admits the issuing of the passed by contract or by mutual consent from the policies, the death of E. during the life of the policies, state of concubinage into that of marriage is made that proof of his death was served upon the defend- doubtful by the admission of the plaintiff, proven by ants, and demand of payment made, as set forth in the testimony of his sister, by that of the defendant's the complaint. So far there was a complete case con- father and by other witnesses. If that testimony is ceded, and if the plaintiffs' title to recover had not de- true it is difficult to find that she herself regarded the pended upon their character as assignees, which was connection as matrimonial, or that its continuanco denied by the answer, no evidence could have been re- depended upon any thing more binding than the inquired on their part. Under the first policy the obli- clination or will of the defendant. It is true, that he gation of the defendants became perfect in sixty days assumed the character of husband and she of wife, and after the death of E., and notice and proof of his reported themselves in that relation to their associates death. No particular form of proof was specified in and others, and there was enough in their conduct the policy, and the only reference to it is the clause prima facie to entitle each to the civil rights which bewhich thus fixes the time when the money is to he- long to the real character, but the testimony to which come payable. No doubt the company were entitled I have referred, and circumstances disclosed by

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