Lawyers' Reports Annotated

carriage or other vehicle, on meeting any other | fected in any way by the former deed. Cen-
person so traveling on any highway or bridge, tral Land Co. v. Laidley (W. Va.)
to pass on the right of the center of the trav-
eled part of the road. State v. Collins (R. I.)
394

6. A sidewalk is intended for the use of pe-
destrians, and a person on a bicycle makes an
unlawful use of it when he rides or drives
his bicycle along it longitudinally. Mercer v.
Corbin (Ind.)
221

NOTES AND BRIEFS.

Liability for accidents upon.

HOMESTEAD.

826
2. A purchaser of land from á married wo-
man, under a deed which is void because of a
defective certificate of examination and ac-
knowledgment, is not entitled to have the con-
sideration refunded by a second purchaser un-
der a valid deed, or to have the land charged
therewith.
Id.

3. A married woman who has given a deed
which is void for lack of proper acknowledg-
ment cannot ratify it during coverture by mere
257 admissions or recitals or other acts in pais, but
only by acknowledgment of the void deed, or
the execution of another instrument in the

2. A wife to whom her husband has con-
veyed homestead property by a valid deed pri-
or to the commencement of a divorce suit
must be regarded as "the former owner," under
Cal. Civ. Code, § 146, subd. 4, which provides
that on a divorce a homestead which has been
selected from the separate property of either
party shall be assigned to the former owner
subject to the power of the court to assign it
for a limited period to the innocent party. Id.

NOTES AND BRIEFS.

form required by statute to pass her title. Id.

4. Where by deed land was conveyed direct-
ly to a married woman, prior to the West Vir-
ginia Code of 1868, such a conveyance did not
create in her a separate estate, but the husband
became entitled to a freehold estate in the land,
which would continue at least during the joint
lives of the husband and wife, with remainder
in fee to the wife.

Id.

5. A wife may, with her husband's consent,
maintain an action against a firm of which he
is a member, for the breach of an agreement
contained in a lease to it of her separate real
estate; and in such action the husband alone
can interpose the defense of the legal unity of
the parties as created by the marriage; and in
case he neglects to answer, and there is no
other defense to the action, judgment will be
entered in her favor. Freiler v. Kear (Pa.) 839
6. A married woman owning a separate
estate, where there is no restriction upon her

Conveyance of, by husband and wife; effect power, is authorized by the Tennessee Act of

of divorce.

HOMICIDE.

781

Brakemen on a railway train are not guil-
ty of negligent homicide "in the perform-
ance of a lawful act," under Tex. Pen. Code,
art. 579, if, while on the train in motion, they
omit to stop it or to signal the engineer to
stop it, after seeing a child on the track, and
in consequence of their failure to act the child
is killed by the train. It is the exclusive duty
of the engineer and fireman to look out for ob-
structions and give signals of danger, and the
brakemen have no legal duty to perform in the
matter. Anderson v. State (Tex.)

NOTES AND BRIEFS.

644

1869-70 to convey such estate without her
husband joining in the deed, where she has
a privy examination before a chancellor, or
circuit judge of the State, or clerk of the
county court. Robinson v. Queen (Tenn.) 214
7. The expenses incurred by a husband in
building a house on his wife's land and improv-
ing the property, on her assurances that he
should enjoy it with her as a home, may be
allowed to him when she has driven him away,
on the ground that her action is in bad faith
and fraudulent. Finlayson v. Finlayson (Or.)
801

INCUMBRANCE. See COVENANT, NOTES | may enjoin one who proposes continuously to
AND BRIEFS.

AND COMPLAINT.

An indictment for attempting to destroy a
dam sufficiently locates the dam if it alleges
that it is within a certain town which is named.
Com. v. Tolman (Mass.)

NOTES AND BRIEFS.

747

damage private property for a public use
without first making compensation, although
no statute has been enacted prescribing the
manner in which the amount of compensation
shall be ascertained and paid in such cases.
Kansas City, St. J. & C. B. R. Co. v. St. Ju-
240
seph T. R. Co. (Mo.)

7. The destruction of valuable property
rights by raising the grade of a street so that
the dirt falls on adjoining land, covering up a
portion of a dwelling house, is more than a
mere trespass; and an injunction may be grant-
ed to prevent it from being done without com-
INFANTS. See MASTER AND SERVANT, 9 pensation to the owner. Vanderlip v. Grand
Rapids (Mich.)

For negligent homicide.

10; NEGLIGENCE, 15.

INJUNCTION.
ERROR, 2.

644

See also APPEAL AND

3. The resolution of a common council
that the mayor and city clerk take immediate
steps for the letting of a contract to some
reliable company for the construction of water-
works, and threats and declarations of the
officers that they intend to enforce the resolu-
tion and let the contract, will not authorize an
injunction on the ground that the contract
could not be authorized without a vote of the
electors of the city. No tax having been
levied or assessed, and at most a mere antici-
pated or threatened contract contemplated,
which has ripened into nothing injurious to
the taxpayers, and which may never do so, a
court of equity cannot be invoked in advance
to restrain the action of the city officers. Ped
rick v. Ripon (Wis.)

269

5. Where the facts show that a stream is
not navigable for floating logs without doing
irreparable injury to the estate through which
it flows, and a person claims a right to use such
stream for that purpose, not only for himself,
but for the public, and threatens to commit, and
claims the right to repeat, the numerous tres-
passes which the exercise of such right neces-
sarily involves, an adjoining landowner is en-
titled to an injunction to prevent irreparable
injury, and to avoid a multiplicity of suits.
Haines v. Hall (Or.)
609

6. The constitutional provision that pri-
vate property shall not be taken or damaged
for public use without compensation must be
held to be self enforcing; and a court of equity

247

8. A grant of "a right of way as now pro-
vided and used, from the street to the hall"
on the third floor over a store, will not be pro-
tected by injunction if, after the hall, which
at that time was used for public entertainments
of all kinds, has been cut up into four rooms
and let to six or seven societies, some of them
secret societies-trades unions,-of mixed mem
bership amounting in all to from 500 to 1,000,
and holding meetings from four to six nights
a week, the complainants can, at relatively
small outlay, re-establish on their own prem-
ises a stairway which formerly led to the hall.
The use, having become oppressive, will not
be enforced in equity, but redress must be
sought at law. McBryde v. Sayer (Ala.) 861

INSANE PERSONS. See CONTRACTS,
11; INSURANCE, 1, 2; TRIAL, 14.

INSOLVENCY AND ASSIGNMENT
FOR CREDITORS. See also BONDS,
4; CONFLICT OF LAWS, 1; PARTNERSHIP,
5; SALE, 1.

1. Ga. Code, § 1953, last clause, permitting
a debtor to prefer one creditor to another by
means of a mortgage, sale, or transfer of prop-
erty, provided the surplus is not reserved for
the benefit of "any other favored creditor to
the exclusion of other creditors," was repealed
by the Act of Feb. 23, 1866; and a debtor may
now sell his property bona fide to pay a debt,
and devote the surplus to a particular creditor
or creditors in preference to other creditors.
Powell v. Kelly (Ga.)

139

2. Land which has been conveyed by an in-
solvent debtor to a bona fide purchaser for value,
by a deed which is not recorded until after the
vendor's assignment in insolvency, does not

pass to the assignee, but the title thereof is in
the purchaser. Smythe v. Sprague (Mass.) 822
3. The assignees of an insolvent banking
firm, the surviving partner of which has made
an assignment, cannot hold as assets of the
firm the proceeds of checks and drafts which
were in the mails at the time of the death of
the other partner, one morning before banking
hours, and were received by the survivor the
same day, and paid by charging them against
the accounts of the drawers, the proceeds
being placed to the credit of the bank which
sent them. Alexandria First Nat. Bank v.
Payne (Va.)
284

NOTES AND BRIEFS.

Assignment of preferences; annexing sched-
ule; sufficiency of schedule and affidavit; va-
lidity of assignment, in form of bill of sale.
139

Bond of assignee; breach of.

5. The provisions in an accident insurance
policy which covers a weekly indemnity for
injuries not resulting in death, as well as a
payment in case of death,-that the insurance
"shall not extend to any bodily injury of which
there shall be no external and visible sign up-
on the body,"-has reference to a claim made
for weekly indemnity, and not an injury result-
ing in death. Paul v. Travelers Ins. Co. (N.
Y.)
443

6. An exemption from liability for death
from "inhaling of gas," in the clause of an
accident insurance policy declaring that no
liability shall exist where the injury is caused
"by the taking of poison, taking of poisonous
substances, or by the inhaling of gas, or by any
surgical operation or medical treatment,"-
must be construed, in the light of the context,
to mean a voluntary and intelligent act of the
insured, and not an involuntary and uncon-
scious act, and does not exempt the company
from liability for an accidental death by in-
702 haling air filled with illuminating gas, while
asleep.
Id.

168

Awards by Commissioners of Alabama
Claims do not pass by assignment.
460
Law of place; assignment in foreign State
upheld; transfer of property.

INSURANCE.

See also BENEFIT SOCI-
ETIES, 2; DAMAGES, 3; PLEADING, 19.
1. In order to work a forfeiture on the
ground of self destruction, under a policy of
insurance providing that no claim shall be
made when death is caused by suicide, the as-
sured must have had sufficient mental capacity,
not only to understand that the act will de-
stroy his life, but also to distinguish its moral
quality and consequences, and must have per-
formed the act with an evil motive. Blackstone
v. Standard L. & A. Ins. Co. (Mich.) 486
2. Death caused by the cutting of his own
throat by an assured person while insane, with-
out knowing the result of his act and without
intending thereby to kill himself, will consti-
tute "death by external, violent, and accidental
means," within the terms of a policy providing
that death must be occasioned by such means
to justify a recovery under the policy. Id

3. Proof that the assured was insane some
twenty years before the policy was issued,
which fact was not inserted therein or men-
tioned to the company, is immaterial and will
not justify a forfeiture of the policy on the
ground of concealment, if it appears that the
company's agent filled out the body of the pol-
icy without questioning the assured in regard
thereto, and that the only question talked over
was as to the amount of the policy.
Id.
4. Where a man, after the death of his
wife, and while he had two children living, a
son and a daughter, surrendered a policy of
insurance upon his life, which was payable to
"his wife and children," and took therefor a
paid-up policy, also payable to "his wife and
children," without naming them; and at the
same time took out another policy, designating
the beneficiaries in the same terms; and, after
the death of his son, died without having con-
tracted another marriage,-the proceeds of the
policies belong to the daughter and the per-
sonal representatives of the son, including the
share which would have belonged to the wife,

7. "External, violent, and accidental means,"
within the meaning of an accident insurance
policy, includes gas in the atmosphere, which
causes the death of a person who breathes it
while asleep.

Id.

8. A fire insurance policy which provides
that it shall become void in case the situation
or circumstances affecting the risk shall be al-
tered so as to increase the risk, with the know-
ledge or consent of the assured and without
the consent of the insurer, is rendered abso-
lutely void by a temporary increase of risk
caused by the manner of using the premises,
and which is not a casual, inadvertent, or inev
itable thing; and the policy will not revive
upon the termination of such increase of risk
before destruction of the property by fire.
Kyte v. Commercial Union Assur. Co. (Mass.)

508

of loss on a building insured is not a waiver
of the benefits of a statute making the amount
stated in the policy the measure of damages,
and does not operate to limit the recovery on
the policy to the award of the arbitrators. Seyk
v. Miller's Nat. Ins. Co. (Wis.)
523

13. A woman who, on the death of her
husband without having made any other pro-
vision for her, becomes entitled, by an ante-
nuptial contract, to a life estate in premises
insured by a policy providing that it shall be-
come void in case of any change in the title or
possession "except by succession by reason of
the death of the assured,"-does not acquire her
rights by succession, and is not entitled to any
interest in the proceeds of the policy. Quarles
v. Clayton (Tenn.)

170 INTEREST.

14. In the absence of any covenant, con-
tract, agreement, or understanding that the
husband should insure for the benefit of his
wife property in which she acquired a life
interest on his death by virtue of an antenup-
tial contract, she has no equitable interest in
the proceeds of a policy of insurance thereon.

Id.

SURETY.

542

See also PRINCIPAL AND

bond for the payment of money is not limited
1. The recovery against the surety in a
to the penalty, but may exceed it so far as
necessary to include interest from the time of
the breach. Interest after the breach is re-
coverable, not on the ground of contract, but
as damages. Frink v. Southern Exp. Co. (Ga.)
15. An insurer's option to pay or rebuild
482
when premises are destroyed by fire is not suf
2. Interest on a bond in an action for neg-
ficient to raise an equity in favor of third per-ligence whereby money was lost is recoverable,
sons disappointed by the exercise of the insur- not from the time the money was lost, but
er's election to pay, though they would be en- from the time of a demand for payment made
titled to the use of the structure if rebuilt. Id. upon the principal and surety; and if no de-
16. A provision in an insurance policy, that mand had been previously made, it is recover-
the insurance shall not enure to the benefit of able only from the time the writ was served
any carrier, is not void as in restraint of trade upon the defendants.
ld.
or contrary to public policy. North America
Ins. Co. v. Easton (Tex.)

424

17. A policy of insurance containing a war-
ranty that it shall not enure to the benefit
of any carrier is avoided and ceases to be ope
rative if, during the time specified for its con-
tinuance, the insured contracts to give a car-
rier any right to benefit under the policy. Id.
18. A certificate of insurance, to convey all
the rights of the original policy holder to a pur-
chaser of the insured property, issued after his
agents had delivered the property to carriers
under a bill of lading providing that the car-
rier should have the benefit of any insurance
upon the property, confers no right on the
carrier, where the original policy contained a
warranty that the insurance should not enure
to the benefit of any carrier, and the certificate
was issued without notice of the provisions of
the bill of lading, although the carrier had no
notice of that warranty in the policy. Id.

19. A policy valid upon its face and in the
hands of the insured at the time of a loss,
which is not null and void, but merely voida-
ble at the option of the company, because a
subsequent policy from another insurer was
taken without the consent of the first insurer,
is to be treated as "other insurance," within
the meaning of a clause in the latter policy,
providing that the insurer's liability on the
policy shall be only in proportion to the whole
amount of insurance. Saville v. Etna Ins.
Co. (Mont.)
542

INTOXICATING LIQUORS. See also
CONSTITUTIONAL LAW, 8; CONTRACTS,
18; STATUTES, 12.

1. Intoxicating liquors purchased in another
State, when delivered to the purchaser, though
remaining in the original packages, become at
once subject to the laws of the State where
to use or dispose of them in a manner differ-
they are delivered; and the owner has no right
ent from that prescribed by the laws of the
State for the sale or use of such property gen-
erally. Collins v. Hills (Iowa)

110

2. The prohibition of the sale of intoxicat-
ing liquors, being a matter which belongs to
the police powers of the government, may with
propriety be left to each county; and a statute
providing for local option in this respect is not
an unconstitutional delegation of legislative
power. Territory, McMahon, v. O'Connor
(Dak.)

355

Territorial Legislature may pass a local option | tion, although by consent of the parties, is il-
law.
ld. legal and void. Block v. Henderson (Ga.) 325

6. A statute providing for local option as 2. Where a court of general jurisdiction
to the sale of intoxicating liquors, which does has summary powers conferred upon it which
not seek to confiscate, destroy, or prevent any are wholly derived from statute, and not ex-
lawful use of them except in so far as a de-ercised according to the course of the common
preciation in value may result from prohibit- law, or are not part of its general jurisdiction,
ing the sale, is not unconstitutional as impair- its decisions must be regarded and treated like
ing the rights of private property.
Id. those of courts of limited and special jurisdic
tion. Furgeson v. Jones (Or.)

7. The Dakota Local Option Law of 1887,
chap. 70, is not invalid for failure to provide
penalties, because in terms and by implication
it continues the former penalties in force, and
provides an additional remedy for the restraint
of the sale of intoxicating liquors by injunc-
tion.
Id.

8. Where an incorporated association pur
chases beer outside of the State of Kansas, and
brings it into the State, and then sells chips to
its members, each chip representing a drink or
glass of beer, and then furnishes a drink or
glass of beer for each chip returned by a mem-
ber, and the beer is drank as a beverage, and
neither the association nor any of its members
has any permit to sell intoxicating liquors, the
members of the association who deliver the
beer on the return of the chips, and the presi-
dent of the association, who is present at the
time and knows of these things, may be prose-
cuted, convicted, and punished for selling in-
toxicating liquors in violation of law. State
v. Horacek (Kan.)
687

9. An action to recover damages for in-
jury to support by the death of plaintiff's hus-
band while intoxicated by liquor given or sold
him by defendant is not an action of tort at
common law, but is purely statutory. Cruse
v. Aden (Ill.)
327

10. The Illinois Dramshop Act, § 9, giving
a right of action for injury in person or prop-
erty or means of support by an intoxicated per-
son, or in consequence of intoxication, against
the persons selling or giving the intoxicating
liquors which caused the intoxication in whole
or in part, does not apply to persons not either
directly or indirectly engaged in the liquor
traffic, and gives no right of action against one
who gives a glass of intoxicating liquor to a
friend as a mere act of courtesy or politeness,
without any purpose or expectation of pecu
niary gain or profit.

NOTES AND BRIEFS.

Libros

Lawyers' Reports Annotated, Libro 3