to a large amount. These bonds were sent by him to D. in New York
(the plaintiff in error) to be sold and the proceeds to be invested in
coupon bonds of the United States. D. made this exchange, and
transmitted the coupon bonds to S. as directed. S. made a settlement
with J. as executor, and afterwards died; and after his death it ap-
peared that he had diverted the coupon bonds to his own use. The
widow then took out letters from the Surrogate in New York, in her
own name, ancillary to the probate in England, and thereupon brought
an action at law in the Circuit Court of the United States for the
Southern District of New York, in her name, as sole executrix under
and by virtue of the letters so issued to her, against the complainants
for conversion of said United States bonds, alleging that the decedent
was domiciled in France, and the Alabama probate was invalid for
that reason, and that these letters testamentary to her were conclusive
on D. so far as the right to maintain the action was concerned. D.
thereupon filed a bill in equity against F., in which the relief sought
was an injunction against setting up or claiming in the action at law
or elsewhere that the decedent was not domiciled in Alabama, that his
will was not duly admitted to probate there, and that the administra-
tion thereunder of J. as sole executor and S. as his attorney were not
valid and binding, and against using in support of such allegations the
ancillary letters testamentary, which defendants had fraudulently and
unlawfully procured to be issued to or in the name of the widow, dis-
covery of the facts within defendants' knowledge, &c. On general
demurrer this bill was dismissed. Held, that the demurrer should
have been overruled, and the defendant required to answer. Ib.
5. In this case the bill having called for answers under oath, and such
answers having been made denying each and every allegation of fraud,
and the evidence of two witnesses, or of one witness corroborated by
circumstances, being wanting in support of the charges of fraud, this
court will not reverse the decree dismissing the bill. Morrison v. Durr,
518.
See LIMITATION, STATUTES OF, 1, 2;
TAX AND TAXATION, 1.
1. If a decree in equity be broader than is required by the pleadings, it
will be so construed as to make its effect only such as is needed for
the purpose of the case made by the pleadings, and of the issues which
the decree decides. Barnes v. Chicago, Milwaukee & St. Paul Rail-
way, 1.
2. The decree entered in accordance with the opinion of this court in
James v. Railroad Co., 6 Wall. 752, when properly construed, invali-
dated the foreclosure of the mortgage made by the La Crosse and Mil-
waukee Railroad Company to the plaintiff in error only as to the
creditors of the company subsequent to the mortgage who assailed it in
that suit, but did not affect it as to the rights of the plaintiff in error
or of the bondholders secured by the mortgage, which were acquired
under that foreclosure. Ib.
3. On a bill in equity filed under § 4915 of the Revised Statutes, to obtain
an adjudication in favor of the granting of a patent, the plaintiff must
allege and prove that a delay of two years and more in prosecuting the
application after the last action therein of which notice was given to
him was unavoidable, or the application will be regarded as having
been abandoned, within the provision of § 4894. Gandy v. Marble,
432.
ESTOPPEL.
See EQUITY, 2, 3, 4;
INSURANCE, 1, 2.
The letter of the defendant in error of March 20, 1876, was admissible in
evidence. Struthers v. Drexel, 487.
See INSURANCE, 3, (1) (2);
TRESPASS ON THE CASE, 2;
WARRANTY.
1. No question is presented for the decision of this court by a bill of ex-
ceptions which does not state any rulings in matter of law, or any
exceptions to such rulings, otherwise than by referring to an exhibit
annexed, containing the whole charge of the court to the jury, and
notes of a conversation ensuing between the judge and the counsel of
both parties as to the meaning and effect of the charge, interspersed
with remarks of either counsel that he excepted to that part of the
charge which bore upon a certain subject, or to the refusal of the
court to charge as orally requested in the course of that conversation.
Hanna v. Maas, 24.
2. When a bill of exceptions is so framed as not to present any question
of law in a form to be revised by this court, the judgment must be
affirmed. Ib.
3. Where a bill of exceptions is signed after the beginning of the term of
this court when the writ of error is returnable, and during a term of
the Circuit Court succeeding that at which the case was tried, but was
seasonably submitted to the judge for signature, and the delay was
caused by the judge and not by the plaintiff in error, the bill of excep-
tions will not be stricken out. Davis v. Patrick, 138.
EXECUTIVE.
See COURT-MARTIAL.
FIXTURES.
See RAILROAD, 4.
The transcript of the evidence at the trial of this case, which is contained
in the bill of exceptions, does not connect the defendant in error with
the frauds which gave rise to this suit. McLeod v. Fourth National
Bank of St. Louis, 528.
K. owing property of the value of $91,400, and owing individually $3400 of
debts, and about $3000 more as a member of a firm, conveyed land in
Alabama, to his daughter, in 1866, as an advancement on her mar-
riage. In 1876, K. was adjudged a bankrupt. His assignee in bank-
ruptcy sued the daughter in equity, to set aside the deed of the land,
alleging in the bill that the deed, being voluntary, was void under the
laws of Alabama. No fraud as to creditors was alleged: Held, that
the assignee did not represent the prior creditors, because the land was
not conveyed in fraud of creditors, within the meaning of § 14 of the
Bankruptcy Act of March 2, 1867, c. 176, 14 Stat. 522, now §§ 5046
and 5047 of the Revised Statutes. Warren v. Moody, 132.
See ASSIGNMEnt for Benefit of Creditors, 1, 2, 3.
1. An owner of one-fourth interest in a vessel took out a policy of insur-
ance on his interest in the vessel, which contained these words: “ War-
ranted by the assured that not more than $5000 insurance, including
this policy, now exists, nor shall be hereafter effected on said interest,
either by assured or others, to cover this or any other insurable interest
in said interest, during the continuance of this policy." The acceptors
of drafts drawn by the master effected for their own protection insur-
ance on the freight and earnings of the vessel in excess of this amount,
and a like insurance on freight and earning in excess was effected on
account of other owners: Held, that this was no breach of the cove-
nant of warranty. Merchants' Ins. Co. v. Allen, 376.
2. P., as agent for an insurance company in Hartford, Connecticut, received
at Southbridge, in Massachusetts, the application of E. for an insur-
ance upon his life, and the premium therefor (paid May 24, 1882);
transmitted both to the company; received from the company a policy;
and delivered the latter to E. The policy contained a provision that
in case of death of the assured, his representatives should “give imme-
diate notice in writing to the company, stating the time, place, and
cause of death," and should "within seven months thereafter, by direct
and reliable evidence, furnish the company with proofs of the same,
giving full particulars." E. died June 19, 1882. P. was verbally in-
formed of it on the same day, and a day or two afterwards informed
the family that he was going to Hartford, and would notify the com-
pany of the death, and would procure the necessary blanks for proof.
He went there, gave the notice to the company, with all the informa-
tion in his possession, obtained the blanks, and gave them to a repre-
sentative of the administratrix, telling him to return them to him (P.)
when completed. The blanks were filled in and were returned to P.
on the 3d of July, 1882. When more than seven months had expired
after the death, P., who had not forwarded the papers to Hartford
returned them to the administratrix, saying that they were incomplete
and asking for fuller information. The papers were then completed
in accordance with P.'s directions, were returned to him January 29,
1883, and were by him transmitted to the company February 7, 1883,
and received by it without objection. Held, that without deciding
whether the verbal notice to P. was a sufficient compliance with the
terms of the contract in that respect, or whether it would have been
sufficient to deliver the proofs of death to P., if there were no more
than that in the case, the action of the company, upon P.'s communi-
cating the death of E., and its delivering to him of blank affidavits
and forms to be filled up, together with the subsequent correspondence,
showed that P. was regarded throughout by the company as its agent;
and the company is therefore bound by what he did. Travellers' Ins.
Co. v. Edwards, 457.
3. An application for a policy of life insurance contained these questions
and answers: Q. "Are you, or have you ever been, in the habit of
using alcoholic beverages or other stimulants?" A. "Yes, occasion-
ally." Q. "Have you read and assented to the following agreement?”
A. "Yes." The agreement referred to contained the following: “It
is hereby declared that the above are the applicant's own fair and true
answers to the foregoing questions, and that the applicant is not, and
will not become, habitually intemperate or addicted to the use of
opium." The policy declared that if the assured should become in-
temperate so as to impair his health or induce delirium tremens, or if
any statement in the application, on the faith of which the policy was
made, should be found to be in any material respect untrue, the policy
should be void. The assured having died, his creditor for whose ben-
efit the insurance was made sued the insurer to recover on the policy.
The defendant set up (1) that at the time of making the policy the
insured was and had been habitually intemperate, and that his state-
ments on which the policy had been issued were fraudulent and un-
true; (2) That after the policy was issued he became so intemperate
as to impair his health and to induce delirium tremens. On both these
issues the insurer assumed the affirmative, taking the opening and
close at the trial. Held: (1) That the opinion of a witness as to the
effect upon the assured at the time of the issue of the policy, of a habit
of drunkenness five years before that date (the witness knowing noth-
ing of them during the intervening period), was properly excluded.
(2) That under the 1st issue the defendant was bound to prove that the
assured was habitually intemperate when the policy issued; and under
the 2d, that he was so after it issued. (3) That while in a very clear
case a court may assume on the one hand that certain facts disclose a
case of habitual intemperance, or on the other that they warrant the
opposite conclusion, in the main these are questions of fact to be sub-
mitted to the jury. (4) That the charge of the court contained all
that it was necessary to say by way of assisting the jury to arrive at a
just verdict, and that he was not required to give them the same in-
structions over again in language selected by the defendants' counsel.
(5) That other requests made by defendant's counsel took from the
jury the decision of the question which should be left to them. North-
western Ins. Co. v. Muskegon Bank, 501.
INTEREST.
See COLLISION, 3.
INTERSTATE COMMERCE.
See CONSTITUTIONAL LAW, 2.
JUDGMENT.
See JURISDICTION, A, 4.
A. JURISDICTION OF THE SUPREME COURT.
1. The question whether, upon all the facts specially found by the Circuit
Court when a trial by jury has been waived, the plaintiff has the legal
right to recover, is not one which can be brought to this court by a
certificate of division of opinion. State Bank v. St. Louis Rail Fasten-
ing Co., 21.
2. In a suit in equity brought in the Circuit Court by two or more persons
on several and distinct demands, the defendant can appeal to this
court as to those plaintiffs only, to each of whom more than $5000 is
decreed. Gibson v. Shufeldt, 27.
3. A debtor having made an assignment of his property to a trustee to
secure a preferred debt of more than $5000, other creditors filed a bill
in equity in the Circuit Court against the debtor, the trustee, and the
preferred creditor; the defendants denied the allegations of the bill,
but asked no affirmative relief; and the decree adjudged the assign-
ment to be fraudulent and void as against the plaintiffs, and ordered
the property to be distributed among them. Held, that this court
had no jurisdiction of an appeal by the defendants, except as to those
plaintiffs who had recovered more than $5000 each. Ib.
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