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itself, a sale for the assessment upon the claimants' lots would not even create a cloud upon his title. For as every person must be presumed to know the law, a proceeding which is upon its face not only illegal, but absolutely void, does not constitute a cloud upon the title to real estate against which a court of equity will relieve." In Van Doren v. Mayor of New York, 9 Paige, 389, the same eminent judge, reaffirming the principle of the previous case, adds: "A valid legal objection appearing upon the face of the proceedings, through which the adverse party can alone claim any right to the complainants' land, is not in law such a cloud upon the complainants' title as can authorize a court of equity to set aside or stay such proceedings. But where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, as where the defendant has procured and put upon record a deed obtained from the complainant by fraud, or upon a usurious consideration, which requires the establishment of extrinsic facts to show the supposed conveyance to be inoperative and void, a court of equity may interfere and set it aside as a cloud upon the real title to the land." The chancellor cites Simpson v. Lord Howden, 3 My. & Craig, 97, in which it was decided that there is no jurisdiction in equity to order a legal instrument to be delivered up, on the ground of an illegality which appears upon the face of the instrument itself. In Pixly v. Huggins, 15 Cal. 127, it was held that if the sale which it was sought to restrain is such, that in an action of ejectment brought by the purchaser under the sale, the real owner would be obliged to offer evidence to defeat a recovery, then such a cloud would be raised as to warrant the interference of equity to prevent the sale. High on Injunction, § 272, recognizes the same rule as settled by the general current of authorities which draw a distinction between cases where the invalidity or illegality charged as the cloud is shown by evidence dehors the record, and where it appears upon the face of the proceedings. And while in the former case the relief is freely granted, in the latter courts of equity will not interfere. To the same effect is Heywood v. City of Buffalo, already cited, approved by Ewing v. St. Louis, 5 Wall. 413, and by Dows v. Chicago, 11 id. 108. In Ewing v. St. Louis, the court say, that with the proceedings and determinations of inferior boards or tribunals of special jurisdiction courts of equity will not interfere, unless it should become necessary to prevent a multiplicity of suits or irreparable injury, or unless the proceeding sought to be annulied or corrected is valid upon its face, and the alleged invalidity consists in matters to be established by extrinsic evidence. The most recent case on this point that has come under our notice is Wells v. City of Buffalo, 21 Alb. L. J. 234, which was an application to set aside an assessment as a cloud upon the title to the plaintiff's land on the ground that the statute authorizing the assessment was unconstitutional, and the court held that no cloud could be created by an assessment which was void upon its face, and dismissed the complaint.

The owner of personal or real property, seized or sold under execution for the collection of an illegal municipal tax, has an adequate remedy at law, either by paying under protest the amount demanded, and bringing an action against the city to recover it back, or by an action of trespass for the recovery of damages. In the case of a sale of real property under a void assessment, as in the case of a sale by a sheriff on a void judgment, the purchaser buys at his peril, and the owner may fold his arms in defiance, or if dispossessed, maintain his rights by an action of ejectment. Under such circumstances the owner can sustaiu no irreparable injury and would suffer a loss only by his own passive submission to a wrong. A party claiming title under a corporation tax

sale must show that every prerequisite to the power of sale has been complied with, and compliance with law must appear on the face of the proceedings. 2 Dill. on Mun. Corp. 658; Collector v. Day, 11 Wall. 113.

A writ of certiorari will afford the owner of property, subject to an illegal assessment, another mode of redress or relief. This remedy is expressly referred to as an appropriate one by Mr. Justice Field, in delivering the opinion of the court in Ewing v. St. Louis, and is approved by Judge Dillon in his excellent work on Municipal Corporations. That learned author remarks: "The unquestionable weight of authority in this country is, if an appeal be not given, or some specific mode of review provided, that the superior common-law courts will, on certiorari, examine the proceedings of municipal corporations, even although there be no statute giving this remedy; and if it be found that they have exceeded their chartered powers, or have not pursued those powers, or have not conformed to the requirements of the charter or law under which they have undertaken to act, such proceedings will be reversed or annulled. An aggrieved party is, in such case, entitled to a certiorari ex debito justitiæ." 2 Dill. on Mun. Corp. 740.

Equity will interpose, in a proper case, to prevent a multiplicity of suits, excessive litigation, or circuity of action. A court of equity, on a bill being filed for a discovery, will sometimes proceed to take jurisdiction of all the matters in controversy between the parties, instead of sending them to a court of law, and thus avoid circuity of action. And so, to prevent a multiplicity of suits, as of one against many, or of many against one, in relation to the same cause of action, the aid of equity may be invoked. But multiplicity does not mean multitude, and equity will not interfere where the object is to obtain a consolidation of actions, or to save the expense of separate actions. Sheldon v. Center School Dist., 25 Conu. 224; Dodd v. City of Hartford, 24 id. 232; Lord Tenham v. Herbert, 2 Atk. 483; Eldridge v. Hill, 2 Johns. Ch. 283. Or where the claim of right rests on a mere question of law, as for ascertaining the legality of the proceedings of a municipal corporation. West v. Mayor of Albany, 10 Paige, 539. Chancellor Kent, in Eldridge v. Hill, supra, says: "Enjoining litigation at law seems to have been allowed in only one of those two cases, either where the plaintiff has already established his right at law, or where the persons who controvert it are so numerous as to render an issue under the direction of this court indispensable to embrace all the parties concerned, and to save multiplicity of suits." A distinction is also to be observed between bills for the prevention of multiplicity of suits or bills of peace, whose object is the suppression of useless and vexatious litigation, and cases where the real object of the relief sought is the consolidation of a number of suits of like nature, since in the former class of cases courts of equity may properly enjoin, but in the latter they will refuse to interfere. Thus, where an injunction was asked to stay proceedings in ninety-two actions of ejectment, until one or more might be tried, the parties, pleadings, title and testimony being the same in all the cases, the relief was refused, the real object sought being a consolidation of the actions which a court of law might properly grant. High on Inj. 329; Peters v. Provost, 1 Paine's C. C. 64. In Penn. Coal Co. v. Del. & H. Canal Co., 31 N. Y., it was said that where a right can only be adequately protected or enforced by ruinous and expensive lawsuits, courts of equity have interposed their jurisdiction, and have given the party redress by injunction, specific performance or other adequate relief, in order thereby to prevent litigation and the mischief which results from it. Bills of peace, says another authority, have been sustained by the court to settle the rights of parties in a single suit, in cases where the questions to be determined

were questions of fact, or mixed questions of law and fact. But no such bill can be sustained to restrain a defendant from suing at law, where the rights of the parties depend upon a question of law merely, and where the defendant in a suit at law must eventually succeed in his defense, without the aid of a court of chancery, if the law is in his favor. West et al. v. Mayor of Albany, supra. The real object sought to be reached by the complainants being a consolidation of their actions, or remedies, against the defendant corporation, they have not presented such a case on the facts and the law as would warrant a court of equity in taking cognizance of their controversy to the exclusion of a common-law court, which has all the necessary jurisdiction and power to grant them full and adequate redress. It would be an evasion of principle to allow a dozen or twenty property owners to tie up the hands of a tax collector, while the individual owner was compelled to seek his remedy in a court of law. A combination of taxables could at any time arrest the operations of a municipal government by enjoining the collection of taxes and thus subordinate public to private interests.

The charge that some of the complainants, being only equitable owners of a portion of the real estate subject to the lien of the assessment, are absolutely remediless at law, would furnish a strong reason for interference if they were not represented by a trustee duly appointed, who has accepted the trust, is acting in that capacity, and has signed the bill of complaint. Holding the legal title to the land, he is in all respects competent to protect the rights and interests of his cestuis que trust in a court of law.

The application for an injunction being unsupported by the facts and the settled principles and practice of equity, as we understand them, we think the bill was properly dismissed by the chancellor. In coming to this conclusion we have purposely abstained from expressing any opinion on the sufficiency of the main objections to the assessment. The appropriate tribunal for their settlement is the Superior Court, by which they can be heard and determined without interrupting for a single hour the collection of the public taxes, and without impairing the rights or injuring the property of the complainants.

Decree affirmed.

MAIL AGENT ON RAILROAD A PASSENGER. PHILADELPHIA COMMON PLEAS, SEPT. 4, 1880.

PRICE V. PENNSYLVANIA RAILROAD Co. Where a railway company received a gross sum for transporting the mails and route agent over its lines, held, that such route agent was a passenger and the company were liable where he was killed by reason of its negligence while travelling on its trains.

ACTION for the death of plaintiff's husband, who

was killed while travelling as mail-route agent on one of defendant's trains, by a collision caused by defendant's negligence. The jury found for plaintiff for $5,000, subject to the opinion of the court upon the question whether deceased was, at the time of his death, a passenger or employee of defendant. Other facts appear in the opinion.

Barton & Sons, for plaintiff.

Hampton & Dalzell, for defendant.

EWING, P. J. While lawfully on the train of the defendant company on the way from Blairsville to Pittsburgh, the husband and father of the plaintiffs was killed by a collision of trains resulting from the gross negligence of defendant's agents. He was not an employee of the company; he was in his proper place, guilty of no misconduct or negligence. The

plaintiffs are clearly entitled to recover unless precluded therefrom by the terms of the first section of the act of 4th April, 1868 (P. L., p. 58), which is as follows:

"That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee. Provided, that this section shall not apply to passengers."

The plaintiff's husband was "route agent" for the United States post-offico department, travelling daily over defendant's road from Allegheny city to Blairsville and return, in charge of the United States mails, receiving and delivering mails at intermediate stations, and assorting and delivering the mails at the termini of the trip.

Under the statutes and regulations of the post-office department the defendant company received a gross sum for transporting the mails and the route agent; likewise furnishing a car properly fitted for the purpose. Is the case governed by the act of assembly above quoted?

At common law the action would have abated at the death of A. J. Price. If plaintiffs are entitled to recover it is by virtue of the 26th section of the act of 31st April, 1846, chartering the company and the act of 15th April, 1851. The right to recover in such cases being a statutory right, the Legislaturo had power to modify and restrict that right as to any or all classes of persons. We are, therefore, unable to see that the fact that Mr. Price was at the time of the injury in the employ of the United States government has any effect on the question. We know of no sanctity or superior right created by such employment, nor do we conceive that it would affect the question had the deceased been on an inter-State route. The right to recover is based wholly on the laws of Pennsylvania. This act of 1868 has received authoritative construction in Kirby v. Penn. R. R. Co., 76 Penn. St. 506, and in Richard v. U. Pa. R. R. Co., 7 W. N. C. 77. The terms of the act are very broad. It includes all persons lawfully employed in or about the roads, trains, cars, etc., of the railroad company. The terms of the section being so broad the minds of the Legislature seem to have been directed to the danger of going beyond the supposed evil intended to be remedied and the proviso is added: "This section shall not apply to passengers."

To our minds it is very clear that Price was lawfully employed on the train of the defendant, at the time of his injury, and unless saved by the proviso as to passengers, the plaintiffs cannot recover.

Was Price a passenger? Webster defines a passenger: "One who travels in some conveyance as a stage coach or steamboat." The fact that a man is employed on his travels does not exclude him from being a passenger in the popular acceptation of the term, nor does it in view of the statute, else why the proviso excepting passengers? While in our view of the case the deceased was carried for hire, in view of the many authorities, some of which will hereafter be referred to, we deem it immaterial as to whether or not he was carried for hiro or carried free, nor is it material that he was carried on the contract of another with defendant.

In the case of Collett v. L. & N. W. Railway, 16 Q. B. 984, plaintiff was a mail agent travelling in the course of his employment on defendant's train. The mail and agents were carried under the directions of an act of Parliament and regulations similar to those of our case- -except that the agent was to be carried free. Plaintiff was injured by negligence of defendant's servants. It was held to be immaterial that he

was carried under a contract with the government. That he was a passenger carried by consent of the company, to whom they owed the duty to carry safely.

In the case of Nolton v. Western R. R. Co., 15 N. Y. 444, plaintiff was a mail agent carried under the same statute and orders as was Price, when he (plaintiff) was injured by the gross negligence of defendant's employees. Held, that he was entitled to recover as a passenger to whom the company owed a duty.

In Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71, the plaintiff was agent or messenger for Wells, Fargo & Co., and was carried under a contract of the express company with the defendant, whereby the defendant agreed to the freight and messenger for a fixed monthly compensation. The plaintiff, while on the car of the defendant company, was injured by reason of the negligence of defendant's servants. Held, that the plaintiff was a passenger and entitled to recover.

In Blair v. Erie R. R. Co., 66 N. Y. 313, the plaintiff was an express agent on the train in the course of his business, in pursuance of a contract, whereby the railroad company contracted to transport the freight of the express company for a certain consideration, and to transport the money safes and messengers free of charge. Plaintiff was allowed to recover. In argument of the case the court treated the agent as a passenger, carried without hire.

In Hammond v. N. E. R. R. Co., 6 Richardson (D. C.), 130, the plaintiff was a route agent in performance of his duty when injured by the negligence of the defendant's employees. The conditions were precisely similar to those of our case. The court held plaintiff entitled to recover, clearly putting it as a case of a passenger, although not in terms calling him such.

In Penn. R. R. Co. v. Henderson, 1 P. F. Smith, 315, plaintiff's husband was a drover in charge of his cattle on defendant's train, he riding on a drover's pass, directing the conductor of the passenger car attached to stock train, to pass the bearer in charge of his stock in certain cars. In an exhaustive opinion the court held the plaintiff entitled to recover for the death occurring by the negligence of defendant's agents. Throughout the whole opinion the decedent is treated as a passenger; numerous other cases are to the same effect. In most of these cases the person injured was employed on the train, the travel being but an incident of the employment.

In the case before us, while Price was employed, he was not in any way responsible for the running of trains. The conductor had no more power over him and no less than over any other passenger on the train. He had his proper place on the train, but that and his regular travel was all that distinguished him from the other passengers.

The case of the Penn. R. R. Co. v. Henderson, and several of the other cases cited, had been decided before the passage of the act of 1868. It is a fair presumption that the Legislature had this class of cases in view when the proviso excepting passengers was inserted. Being of the opinion that the deceased, at the time of his injury, was a passenger on defendant's train within the meaning of the proviso of the act of 1868, the plaintiff is entitled to recover.

REPLEVIN IN STATE COURT OF GOODS SEIZED UNDER FEDERAL PROCESS. MICHIGAN SUPREME COURT, OCTOBER 13, 1880.

HEYMAN V. COVELL.

Defendant, as United States marshal, under an execution from a Federal court against plaintiff's husband, seized goods belonging to plaintiff. Held, that plaintiff could maintain replevin against defendant for such goods in a State court.

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Norris & Uhl, for plaintiff in error.

Butterfield & Withey, for defendant in error,

CAMPBELL, J. Mrs. Heyman, the plaintiff, sued defendant in replevin for certain goods, which, as we understand the finding, the court below held were unlawfully taken from her by defendant, but nevertheless gave judgment in his favor. Defendant at the time the goods were replevied held them as United States deputy marshal, under an execution issued from the Circuit Court of the United States for the Western District of Michigan, against one Adolph Heyman, who was plaintiff's husband. There are no legal conclusions set out in the finding, and there are some facts set out which would seem to indicate that there were questions discussed concerning the validity of plaintiff's title. We have had some doubt whether the court below did not err in failing to find more specifically as requested. But the facts actually found show title in plaintiff and show nothing to controvert it. We shall assume, therefore, what has been assumed by counsel for both parties, that the ground of the decision was that defendant's possession, though wrongful, must prevail over State process issued in favor of the real And we shall consider the record as involving the question whether a United States marshal, by seizing the property of a stranger to the execution in his hands, can cut off the right of the owner to recover his property thus wrongfully seized. For the right is effectually cut off if it cannot be replevied in the State court, when there is no remedy provided by law for trying the title anywhere else.

owner.

The case supposed to stand in the way of this remedy is Freeman v. Howe, 24 How. 450. The language of that case does, when taken by itself, tend to sustain the claim of defendant, and if it were applicable here, and not affected by subsequent decisions, we should be disposed (as stated in Carew v. Mathews, 41 Mich. 576) to regard it as perhaps disposing of the case. But when this decision is considered in the light of other decisions which are recognized as binding in the United States courts, we think it has no force when applied to the issue before us. The only ground of the decision was that the property there in controversy was in the custody of the United States court for legal purposes, and that an effectual remedy existed in that court to try and determine the rights of the adverse claimant. If this was so there was little room for discussion. The remedy there suggested was a bill in equity, which it was said would not be treated as a separate suit but only as a collateral proceeding in the same suit. And reference was there made to some other cases in which the question decided was, not whether one jurisdiction could interfere with another, but whether the remedy in equity was a proper remedy to protect the particular rights in controversy. In Freeman v. Howe, there can be little doubt that there was a remedy in equity so far as the subject-matter was concerned, for the complaining parties were railroad mortgagees in trust and the property replevied by them was taken in that capacity against a levy not by execution, but under mesne process.

There was certainly some force in the suggestion that the remedy was there adequate, and the fact that the property was in the custody of the court was assumed. Possibly that is true in some cases in regard to property held under mesne process. But such has not been the view concerning property held under final process, and it has been uniformly held that a marshal is a trespasser and in no way protected by his process when he seizes the property of a stranger,

In Buck v. Colbath, 3 Wall. 334, the action was tres

pass, and therefore all that was said about other remedies was obiter. But it was distinctly intimated that the difficulty did not arise except concerning property actually or constructively in the possession of the court, and while litigation was still pending. Property under mesne process is in some cases the only basis of jurisdiction, and it is often subject to disposition for various purposes pendente lite, so that it may not only be discharged from seizure but may sometimes be dealt with otherwise. This creates at least a colorable, if not a real distinction, and may give some force to the claim that it is in the custody of the court, although we are not prepared to say the distinction is usually in fact very important. The case of Buck v. Colbath is significant in confining the doctrine of conflict to interference with the action of courts, and in holding that a marshal who levies on the property of a stranger is in no sense acting under process unless the writ directs the seizure of the specific property taken. The distinction between writs against specific property and those against undescribed property of named persons is made the turning point. And it was said emphatically that the plaintiff in error is mistaken when he asserts that the suit in the Federal court drew to it the question of title to the property, and that the suit in the State court against the marshal could not withdraw that issue from the former court. No such issue was before it, or was likely to come before it, in the usual course of proceeding in such a suit.

In the subsequent case of McKee v. Rains, 10 Wall. 22, it was held that a trespass suit by a third person against a marshal could not be removed into a court of the United States, because his levy could not be regarded as made under any authority of the United States. This is certainly equivalent to holding that he is no better off than if he had no process, and it is difficult to conceive how it leaves any room for holding that a disturbance of his wrongful possession is an interference with the court.

It would not be, we suppose, competent for Congress or any State, even by positive enactment, to deprive the owners of property of the right to vindicato their title by legal process in a judicial trial. There is no legislation which provides any method whereby Mrs. Heyman could secure her rights in the United States court against Covell. Unless she has such a remedy in due form of law her only resort must be to the State courts, and this is recognized in McKee v. Rains as well as in Slocum v. Mayburry, 2 Wheat. 2. It was indeed held in Freeman v. Howe, that equity would relievo in that particular instance, and was said that it would in any case of wrongful levy on a third person's goods. If this were so, the case would not be difficult of redress. But it has since been held that there is no such remedy. In Van Norden v. Norman, 99 U. S. 378, a bill in equity was filed in the Circuit Court of the United States for the district of Louisiana to secure protection and restoration against a marshal's levy under an execution from the same court, and the Circuit Court made such a decree. But on appeal to the United States Supreme Court it was held that replevin was the proper remedy to regain possession, or some similar proceeding in the nature of a commonlaw replevin, and that equity had no jurisdiction. The decree was reversed for want of jurisdiction, without prejudice to an action at law or other redress.

If there is no remedy by bill in equity then it follows that a common-law action is the proper redress, and such action can only be brought in a court of the United States where the parties are such as to confer jurisdiction; and in such cases the statutes have made the jurisdiction concurrent with power of removal under certain circumstances. In the present case it does not appear that suit could have been brought anywhero but in the State court, and the case has gone to judgment in the usual course. We think there was no

ground for refusing redress to plaintiff, and that she was entitled to judgment on the finding.

Judgment must be reversed with costs and judgment entered for plaintiff with nominal damages of six

cents.

Cooley, J., dissented.

NEW YORK COURT OF APPEALS ABSTRACT.

ARBITRATION -REFUSAL OF ARBITRATORS TO HEAR TESTIMONY- MISCONDUCT VITIATING AWARD JUDGMENT OF ARBITRATORS AS TO THEIR POWERS REVIEWABLE-CONSTRUCTION OF SUBMISSION. —(1) In an arbitration between plaintiff and defendant, plaintiff offered to produce certain witnesses named, in order to reconcile contradictory statements made by plaintiff and defendant, but was met by a refusal on the part of the arbitrators to receivo any testimony except the statements of the parties, they construing the submission to limit their power to the act of passing upon the statements of the parties. Plaintiff did not offer to show what the witnesses offered would testify to. Held, that if the arbitrators were erroneous in the construction of the submission, their refusal to receive the testimony offered was such misconduct as would vitiate their award and that plaintiff had not forfeited his rights by a failure to show what the proposed witnesses would testify to. The refusal of an arbitrator to examino witnesses is sufficient misconduct on his part to induce the court to set aside his award, though he may think he has sufficient evidence without them. Phipps v. Ingram, 3 Dowling, 669. In Van Cortlandt v. Underhill, 17 Johns. 405, it was held that if the arbitrators refused to hear evidence pertinent and material, it will vitiate the award. In Fredicar v. Guardian Ins. Co., 62 N. Y. 392, it is said that if an arbitrator refuses to hear competent evidence on the merits, his award will be set aside. (2) The decision of arbitrators as to their powers was not conclusive. No such question was submitted to them. It is for the court to judge whether arbitrators have exceeded their powers or refused to exercise them. The general rule that their decisions are not reviewable on the mere ground that they are erroneous, is applicable only to their decisions on matters submitted to them. The submission is the foundation of their jurisdiction, and they are not the exclusive judges of their own powers. (3) A submission contained this: "The arbitration shall be conducted and decided upon the principle of fair and honorable dealing between man and man." Held, not to justify the arbitrators in refusing to hear testimony other than the statements of the parties. Judgment reversed. Halstead, appellant, v. Seaman. Opinion by Rapallo, J. [Decided Sept. 21, 1880.]

INSURANCE-LIFE POLICY — INSOLVENT COMPANY — NON-PAYMENT OF PREMIUMS. — In this case appellants represented claims against an insolvent insurance company in the hands of a receiver, upon policies which wero running at the date of the appointment of the receiver, and upon which premiums had been paid to some time subsequent to such date. The persons insured by such policies died subsequent not only to the appointment of the receiver, but subsequent also to the time to which premiums had been paid. It appeared that the receiver had given express notice that he would receive no more premiums. Held, that these claims were within the principle laid down in People v. Security Life Ins. Co., 78 N. Y. 129. The policies were in full force at the time when the insured persons died. The further payments of premiums were excused by the failure of the company, as well as by the express notice of the receiver that he would receive no more premiums. For the purpose of enforcement, the policies were just as effectual as if the premiums had

been actually paid. They were not, properly speaking, death claims, but claims for damages upon policies running at the appointment of the receiver; and the rules laid down in the case cited furnish an accurate and just basis for the computation of such damages. Order affirmed. Matter of Attorney-General v. Guardian Mutual Life Insurance Co. Opinion by Earl, J. [Decided October 15, 1880.]

INSURANCE

LIFE POLICY - INSOLVENT COMPANYRIGHT OF RECEIVER TO APPEAR IN PROCEEDING TO DETERMINE PRIORITIES CONSTITUTIONAL LAW — OBLIGATION OF CONTRACT-REGISTERED POLICIES — ANNUITIES COMPUTATION OF VALUE FORFEITURES — UNCONSCIONABLE AGREEMENT — USURY.—(1) In a proceeding solely to determine the rights of several claimants to the funds of an insolvent insurance company in the hands of a receiver, held that the receiver had a right to appear and file exceptions to the report of the referee. The receiver represents not only the company, but he stands as a trustee of its funds for all its creditors. He is supposed to be impartial between the several claimants upon the funds; and yet he may intervene to see that no injustice is done to any one and that the funds are properly protected, disposed of and administered. Bookes v. Hathorn, 78 N. Y. 222. In such cases the claimants do not all usually appear before the referee by counsel. They may choose to rely upon the protection the receiver as their trustee will give them, and that he may afford them such protection he may appear before the referee, file exceptions to his report and appeal from any order or decree made at any stage of the proceedings affecting the funds in his charge. (2) A life insurance company commenced business in 1862 and continued business until 1877. For several years previous to the last date it issued what were named registered policies under Laws 1866, chap. 576, 1867, chap. 508, and 1869, chap. 902, which policies were, under said statutes, entitled to priority of payment over other policies out of a fund created by premiums upon such registered policies. Held, that the statutes named were not unconstitutional as impairing the contract between the ordinary policy-holders and the company. It is clear that the obligations of the company were in no way interfered with or impaired. The company remained liable to discharge all its obligations just as it made them, and precisely according to their terms. The holders of non-registered policies had no lien upon the property of this company at the time of the passage of these acts, and they were therefore deprived of no lien. Laws abolishing imprisonment for debt and distress for rent, and increasing the amount of property exempt from execution, have been held not to impair the obligation of contracts previously existing. Laws could be passed giving servants a preference of payment in all cases out of the estates of their employers without impairing the obligation of other contracts entered into with such employees. So the Legislature could, for reasons of public policy and jus tice, give classes of creditors preference over other classes, so long as creditors not preferred were left with substantial remedies. Here the holders of registered policies were given a preference of payment upon a fund substantially created with money contributed by them. The special fund created for their benefit could never, in the ordinary management of a company, be greater than the money contributed by such policyholders, and it seems absurd to say that a provision that they should havo payment out of such fund in preference to other policy-holders violated the obligation of any contract within the meaning of the Constitution. A debtor does not violate the obligation of his contracts with other creditors by pledging to a class of his creditors a portion or all of his property for the purpose of securing their claims, and the same must be true of an insurance company which sets apart

a portion of its assets in pursuance of law for the purpose of securing a certain class of its creditors. (3) In computing the value of annuity bonds issued by the insurance company, the Northampton table with interest at six per cent (People v. Security Life Ins. Co., 78 N. Y. 114) should not necessarily be followed. The true rule to measure the value of such annuities is to take such a sum as will, for the remainder of the life of the annuitant, purchase an annuity for the same amount. In the case of running policies in insolvent companies, the court has held that the amount of damage to a policy-holder is the value of the policy destroyed, and that such value is the sum, which, together with the same future premiums, will procure another policy in a solvent company. So the value of au annuity bond binding the company to make certain annual payments during life is such a sum as will purchase a similar bond in another solvent company for the remainder of life. Nothing short of that will give the party whose bond is destroyed full indemnity. It would do exact justice between an annuitant and the company to compute the value of his annuity by the same table which was used when he purchased the annuity. It would not be just to take a basis of six per cent interest, when a basis of four or four and a half per cent, requiring a larger gross sum, was used in the purchase. (4) A provision in paid-up policies issued in lieu of other policies upon which notes had been given for portions of the annual premiums, that in case the interest should not be paid as agreed upon any note thus given, the policy should become void and the company not be liable for any part of the sum assured, held not to be oppressive, unconscionable or usurious. Such contracts are no more unconscionable or oppressive than subscriptions to stock upon condition that the stock shall be forfeited for non-payment of calls. In such case a large amount of stock may be forfeited for non-payment of the last call, and that a small one, and yet a court of equity would not relieve against the forfeiture Sparks v. Liverpool Water Works, 13 Ves. 429; Prendergast v. Turnton, 1 Y. & C. (N. R.) 98, 110 to 112. See, also, Andrews v. St. Louis Hope Ins. Co., 5 Bigelow, 527; Martin v. Etna Life Ins. Co,, id. 514; Patchen v. Phoenix Mut. Life Ins. Co., 44 Vt. 481; Knickerbocker Life Ins. Co. v. Vashti, 8 Ins. L. J. 349; Nettleton v. St. Louis Hope Ins. Co., 6 id. 426; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 742. There was no usury because in addition to the seven per cent upon the notes, the forfeiture was also exacted in case of non-payment of the interest. The policy was not affected by any usury, because it was not a contract for the loan or for borrowing of any money. Even the note would not be usurious if it contained a stipulation that the policy should be forfeited by default in payment of the interest, because the maker of the note could avoid the forfeiture by payment of the interest. Burtow's case, 5 Co. 69. In 2 Pars. on Cont. 393, it is said: "An agreement to pay more than intefest, by way of penalty for not paying the debt, is not usurious, because the debtor may relieve himself by paying the debt with lawful interest." (5) One P. paid 100,000 francs for an annuity of 18,388 francs, payable each 22d of December, during life. Annuities were paid in 1874, 1875 and 1876. The receiver was appointed in March, 1877, and P. died in November, 1878. Held, that the annuity was not to be valued in favor of P.'s representative, at what the expectancy was worth when the receiver was appointed, but at what the bond was shown to be actually worth by the death of P. The failure of the company did not increase the amount of the damages or the value of the bond. Order modified and affirmed. Matter of Attorney-General v. North America Life Insurance Co. Opinion by Earl, J. [Decided Sept. 28, 1880.]

MASTER AND SERVANT-ON WHAT LIABILITY OF MASTER FOR INJURY TO SERVANT DEPENDS—SUPERIN

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