date, as between themselves, their contract of sale for a supposed violation of the act.

was a brother in-law of Minzesheimer. On the morning of the fourth of January, Minzesheimer, who was to pay for the This was a suit in trespass brought by stamps, purchased them and went with appellee, Minzesheimer, against appel- his son and Blumenthal to the factory lants, to recover damages for the taking with two wagons. Blumenthal pointed to of 10,700 cigars to which Minzesheimer the cigars, gave Minzesheimer several claimed title under a purchase from one boxes, saying: Here are your cigars." Regina Blumenthal, the cigars having Minzesheimer looked them over, and they been levied upon and sold by appellant began stamping. Schloss' foreman, in Ayars, a deputy sheriff, under a writ of charge of the place, then offered to stamp attachment in favor of appellants, Straus them with the aid of a boy, and to have and Sawyer, against Regina Blumenthal, and one Schloss, her partner. The record shows the following facts:

them completed by 4 o'clock, which was assented to, and Minzesheimer and Blumenthal then left. About 4 o'clock of the afternoon Minzesheimer and Blumenthal came back, but in the meantime the levy had been made under the attachment writ in favor of appellants Straus and Sawyer, against Schloss & Co.

Defendant, among other things, requested the court to charge, that under the act of Congress of July 20, 1868, there could be no sale of the cigars until they were boxed and stamped, which request was refused.

Verdict for plaintiff.

In 1872 Minzesheimer was in partnership with J. W. Schloss and Regina Blumenthal in the cigar business in Chicago, under the firm name of F. Minzesheimer & Co. This firm dissolved October 16, 1872, and the business was continued by J. W. Schloss and Regina Blumenthal, under the name of J. W. Schloss & Co. The new firm became indebted to Straus & Co. in the sum of about $800. Regina Blumenthal lived in New York, and the business was conducted by Schloss in Chicago. Julius Blumenthal, husband of Regina, came to Chicago acting under a power of attorney from his wife, and dissolved the firm, Blumenthal taking the assets and agreeing to pay the firm debts. Blumenthal took charge of the firm assets, including cigars, tobacco, and fixtures at store No. 39 South Canal street, and the cigars in controversy, at factory, No. 39 Waller street. Blumenthal was to take charge of the cigars as soon as they could be packed and ready to be stamped. Be- U. S. CIRCUIT COURT-NORTHERN DIS

fore they were packed or stamped, and on the 2d of January, 1873, Minzesheimer claims to have bought the cigars of Blumenthal. The alleged sale was made at 283 West Lake street, a mile and a half from the cigars at 39 Waller street. Minzesheimer had never seen the cigars; he paid $428 for them, and received a written. memorandum of the sale. Blumenthal was to deliver them January 4, 1873. He

tiff.

Held, 1. That the title vested in plain

2. That the act of Congress in no wise affected the relative rights of the parties to this sale.

Judgment affirmed.
Opinion by Sheldon, J.

LIFE INSURANCE.

WARRANTY.

REPRESENTATION.

TRICT OF OHIO.

nothing to do with the contract. The and void." The defendant av s that the only question is, were they untrue, said answer above stated was not in all and if so, the policy is void. But respects true and correctly stated, but was if representations, then to avoid the incorrect and untrue in this, the father of policy, they must be substantia ly said Jeptha C. did not die at the age of and materially untrue, or made for 58, but he died before he was of the age the purpose of fraud. The rule determining what amounts to a warranty or representation stated. This suit is founded upon a policy of insurance upon the life of Jeptha C. Buell, for the benefit of his wife, the plaintiff.

of thirty years: Wherefore the defendant says said policy was and is void and of no effect, and said plaintiff not entitled to recover any amount against the defendant.

To this answer the plaintiff files her demurrer, alleging as reason therefor, that all of said statements and allegations are redundant and irrelevant, and constitute no defense to the plaintiff's action. The demurrer admits that the answer to the question as stated in respect to the age of the father at the time of his death, was untrue and incorrect. That being the fact, does it constitute a defense to this action?

Held, Statements in the application for insurance in the declaration, or answers to the questions are either warranties or representations If warranties then materiality, or want of materiality as to the The only question is were they untrue, risk has nothing to do with the contract. and if so the policy is void. But if representations, then to avoid the policy, they must be substantially and materially untrue, or made for purpose of fraud.

The defendant, as a second defense to the action, sets up in its answer that in the declaration ma le at the time of the application for insurance, among other things, the plaintiff says: "And I do hereby agree that the answers given to the following questions and the accompanying statements, and this declaration shall be the basis and form a part of the contract or policy between me and said company; and if the same be not in all respects true and correctly stated, the said policy shall be void." That among the questions in said declaration above referred to, was the following question: "Has father, mother, brother or sister of the party died, or been afflicted with consumption, or any disease of the lungs, or insanity? If so, state full particulars of each case." That the answer to the above question given by the plaintiff was as follows: "No. Father died from exposure in water; age 58. Mother living; age It is believed the true rule in relation about 50." That the policy issued upon to the question of what amounts to a said declaration and questions and answers, warranty, or what amount only to repreand sued upon, contains the following sentation, in the answers to questions in condition, to wit: "And it is also under- this class of applications, is: Where the stood and agreed to be the true intent answers are responsive to direct questions and meaning hereof, that if the proposals, asked by the insurance company, they are answers and declaration made by said to be regarded as warranties, and where Anna M. Buell, and bearing date the 19th they are not so responsive, but volunteered day of March, 1866, and which are here- without being called for, they should be by made part and parcel of this policy as construed to be mere representations. fully as if herein recited, and upo the The part of the answer in question in faith of which this agreement is made, this case in reference to the age of the shall be found in any respect untrue, father at death, being a mere representathen, in such case this policy shall be null' tion, does not constitute a defense unless

it appears to have been material as well to furnish indemnity; that the certificate as fa'se.

The demurrer is therefore sustained.
Opinion by Welker, J.

PROMISSORY NOTE. INDEMNITY.
N. Y. COURT OF APPEALS.
Frank, respt., v. Wessels, applt.
Decided February 8, 1876.

A receipt given on the deposit of moneys,
agreeing to pay the depositor or order
in paper currency the amount deposited
upon the return of the receipt, is a ne-
gotiable promissory note.

In an action brought thereon the defendant, under the 2 R. S., 406, is entitled to a bond of indemnity where the instrument has been lost.

This action was brought to recover a sum of money alleged to have been deposited by F., plaintiff's assignor, with defendant, for which the latter gave him a certificate or receipt, which contained an express promise to pay F. or order, in paper currency upon demand, the money loaned, with interest, upon return of the certificate. The assignment of the claim. was put in evidence upon the trial, and it set forth that the cert ficate had been lost or stolen, and had not been indorsed by F,; that he was the owner of it and entitled to its possession, and had not, until at that date, parted with or disposed of his interest therein. Upon the trial plaintiff's counsel stated that plaintiff would indemnify defendant if required; but no bond was given. Defendant's counsel then moved for a non-suit, on the ground (among others) that the indemnity provided by statute in actions upon lost negotiab e notes, 2 R. S., 406, had not been offered.

The Court directed a verdict for plaintiff without requiring him to deliver the

bond.

S. S. Harris, for respt.

Samuel Hand, for applt.

was a negotiable promissory note; that the words "upon the return of this certificate" did not make it payable upon a contingency or constitute a condition precedent to any payment, and if so, no money could be had without a return of the certificate; that the fact that the certificate had not been indorsed did not alter the case. Patterson v. Poindexter, 6 M. & S., 227, distinguished and limited. That the character of the certificate was not changed by the fact that it was payable in paper currency, as it must be construed as referring to legal tender paper currency, which under the U. S. laws

is money.

Judgment of General Term, affirming judgment for plaintiff, affirmed, if plaintiff within thirty days gives bond of indemnity, to be approved by one of the judges of the City Court of Brooklyn, without costs of this Court to either party; otherwise judgment reversed and new trial granted.

Opinion by Church, Ch. J.

TRESPASS. COSTS.
N. Y. SUPREME COURT-GEN'L TERM.
FOURTH DEPT.

Smith, respt., v. Ferris, applt.
Decided January, 1876.
When lands are old under a contract of

sale without a conveyance thereof, the legal title remains in the vendor. Damages for opening a highway through such land should be awarded to and all releases should be made by the vendor. Costs.

This action was brought for an alleged trespass on plaintiff's lands.

In May, 1872, plaintiff executed to one Spring a contract in writing for the sale and conveyance of said lands, and Spring went into possession of the same under said contract. In 1873, Spring being still in possession, made an oral agreement

Held, error: That plaintiff was bound with one D. for the sale thereof, and D.

For this error the judgment must be reversed and a new trial granted, costs to abide the event.

Opinion by Gilbert, J.

paid $500 down and went into possession cognizance, because the title to real propof said lands with Spring erty came in question (Code, § 54, sub. 2, The lands were assessed to S., and he § 55). In such cases costs are allowed to and D. continued to occupy the same the plaintiff, of course (Code, § 304, sub. until 1874. In December, 1873, proceed-3). ings were taken to lay out a highway through said lands, and D. and wife, then being in possession, by an instrument under seal released all claim for damages. by reason of laying out such highway. Spring also executed a similar release. Sometime in April, 1874, Spring and ESTOPPEL. D., although they had paid $500 on the land, suffered Smith, the plaintiff, to retake the same. The defendant is the Commissioner of Highways or Street Superintendent of the village in which said. lands are situated.

Defendant entered upon the lands to construct the highway, and this action was brought for the trespass. There was a verdict for plaintiff for $150.

On the trial the court charged the jury that unless they found a verdict of at least $50 it would not carry costs.

The main question was, whether under the holding of S. and D. of the land in suit they were, within the intent and meaning of the statutes, owners, &c.

Cheeseman & Davison, for respt.
Martindale & Oliver, for applt.

Held, We are of opinion that the term owner of the land" was used in the statute applicable to this case (1 R. S. 515, § 64), as amended in 1847 (2 Lans. 1847, p. 588), in its ordinary acceptation, and imports the person who is entitled in law. to the legal estate in the land. The venIdee in this case had no estate in the lands. He was not, therefore, "owner of the land" within the meaning of the statute, whatever other ownership the contract conferred upon him.

FORMER JUDGMENT. PLEA IN BAR.

U. S. SUPREME COURT. Gould, executrix v. Evansville & Crawfordsville Railroad Company.

Decided January, 1876.

When a former judgment is set up in bar of a pending action, it is not required to be pleaded with any greater strictness than any other plea in bar.

In the plea of a former judgment, the parties and the cause of action being the same, the prima facie presumption is that the questions presented for determination are the same unless it appears that the merits of the controversy were not involved in the issue.

A judgment rendered upon a demurrer to the declaration or other pleading in chief, is equally conclusive of the matter confessed by the demurrer as a verdict finding the same facts would be. If, however, the plaintiff fails on demurrer in his first action, for the omission of an essential allegation in his declaration, which is fully supplied in the second suit, the judgment in the first suit is no bar to the second.

Error to the Circuit Court of the United States for the District of Indiana.

This was an action of debt commenced by the plaintiff's testator in his life time. The court fell into an error in inform- to recover the amount of a judgment ing the jury that the plaintiff must re- which the testator of the plaintiff, as he cover $50 to entitle him to costs. The alleged, recovered on the third of August, action belongs to a class of which justices 1860, against the defendant corporation, of the peace are prohibited from taking in the Supreme Court of the State of

New York, by virtue of a certain suit ration in that case, as in the present case, therein pending, in which, as the defend- alleged that the court which rendered the ant alleged, the court there had jurisdic- judgment was a court competent to try tion of the parties and of the subject- and determine the matter in controversy, matter of the action; and he also alleged and that the judgment remains in full that the judgment still remains in full force, unreversed and not paid. force and not in anywise vacated, re- Superadded to that, the defendants in versed, or satisfied. Defensive averments, the present suit allege, in their plea in of a special character, are also contained bar, that the plaintiff averred in the forin the declaration, to which it will pres- mer suit that the said Evansville and Ilently become necessary to refer in some linois Railroad Company, by virtue of a detail, in order to determine the principal law of the State of Indiana, consolidated question presented for decision. Suffice their organization and charter with the it to remark in this connection, that the organization and charter of the Wabash testator of the plaintiff alleged, in con- Railroad Company, and that the two comclusion, that by virtue of the several alle- panies then and there and thereby, begations contained in the declaration, an came one company by the corporate name action had accrued to him to demand and of the Evansville and Crawfordsville Railhave of, and from the defendant corpora- road Company, and that the consolidated tion the sum therein mentioned, with in- company then and there by that name, terest from the date of judgment. took possession of all the rights, credits, Service was made, and the corporation effects, and property of the two separate defendants, in the suit before the court, companies, and used and converted the appeared and pleaded in bar of the action same, under their new corporate name, to a former judgment in their favor, ren- their own use, and then and there and dered in the County Circuit Court of the thereby became and were liable to pay all State of Indiana, for the same cause of the debts and liabilities of the first named action, as more fully set forth in the railroad company, of which the claim of record, from which it appears that the the plaintiff in that suit is one; that the testator of the present plaintiff, then in plaintiff also averred that the consolidated full life, impleaded the corporation de- company from that date directed and fendants in an action of debt founded on managed the defence wherein the said the same judgment as that set up in the judgment was rendered, and that the act present suit, and alleged that he, the of consolidation and the aforesaid change plaintiff, instituted his action in that case of the corporate name of the company, in the Supreme Court of the State of were approved by an act of the LegislaNew York, against the Evansville and Il-ture of the State, and that the consolilinois Railroad Company, a corporation dated company became and is liable to created by the laws of the State of Indiana, and that the said corporation defendants appeared in the suit by attorney, and that such proceedings therein were had that he, on the third of August, 1860, recovered judgment against the said corporation defendants for the sum therein mentioned, being for the same amount, debt and cost, as that specified in the judgment set up in the declaration of the case before the court, and that the decla

pay the judgment, interest, and cost; and that a copy of the judgment and proceedings mentioned in the declaration in that suit, as also copies of all the acts of the Legislature therein referred to, were duly filed with said complaint as exhibits thereto, and that the corporation defendants appeared to the action and demurred to the complaint, and that the court sustained the demurrer and gave the plaintiff leave to amend.