one thousand, eight hundred and seventy-eight, at 12 o'clock at noon, and to be paid ninety days after due notice and proofs of the same shall have been made by the assured and received at this office, with the terms and provisions of this policy."

The application thus made a part of the policy contained among other things the following representation:

"The above description and diagram contains a full and accurate description of the buildings and property insured and the insurance on the buildings does not exceed two-thirds their actual cash value. J. R. BUTLER."

During the life of the policy, the dwelling house insured was totally destroyed by fire. The petition prayed for a judgment for $800.00, the full. amount of insurance on the dwelling house.

The answer denied that the dwelling house destroyed was of the value of $800.00.

During the trial in the court of common pleas, the following bill of exceptions was filed: "Be it remembered that at the trial of the above case, the defendant, to maintain the issue on her part, offered evidence tending to show that the dwelling house mentioned in plaintiff's petition, was not worth, at the time the same burned, more than the sum of four hundred dollars, and that the plaintiff was not damaged by the burning of the same more than the said sum of four hundred dollars, and that to said evidence the plaintiff, by his attorneys, objected; which objections the court sustained, to which ruling and decision the defendant excepted, and now comes in open court with this, her Bill of Exceptions, and prays that the same may be allowed, signed and sealed, and ordered to be made a part of the record in this case, which is accordingly done."

Trial to the court. Judgment for plaintiff for $800.00 and $34.80 interest, and also for costs. On proceedings in error in the district court it was assigned for error that the court of common pleas erred in excluding evidence as set forth in the bill of exceptions; but the district court affirmed the judgment below.

This proceeding is now prosecuted to reverse the judgments of the district and common pleas

courts.

MCILVAINE, J.

Whether the policy of insurance in this suit is valued or open, is the sole question in this

case.

A policy of insurance is essentially a contract for indemnity in case of loss. Wager policies are contrary to public policy. The insured must have an interest in the subject of the insurance -an interest in its preservation. In case of loss, his contract rightfully entitles him to compensation-nothing more. The reason upon which this principle rest, is the prevention of fraud and crime, by removing all inducement and temptation to commit them, which would naturally arise from the great disparity between the consideration paid and the indemnity re

ceived by the insured. This disparity, however, does not amount to inadequacy, or even a suspicion of fraud; because of the supposed remoteness of the contingency of loss; nevertheless its existence requires the utmost good faith on the part of the insured.

While these considerations do not, in the least, exempt the insurer from liability on his contract they do show that in the absence of a contract to the contrary, the amount of recovery on a policy of insurance should be limited to the actual loss sustained by the assured on account of the risk against which the policy was taken. In other words, a policy of insurance must be regarded as an open one, unless it appears to have been the intention of the parties to the policy, upon a fair and reasonable construction of its terms, to value the loss, and thereby fix, by contract, the amount of recovery. Mr. Wood, in his treatise on fire insurance, section 41, says: "Valued policies are those in which both the property insured and the loss are valued, and which bind the insurer to pay the whole sum insured, in case of total loss. They may be said to be policies in which the insurer himself, at the time of making the policy, assesses the damages in case of total loss, unless fraud, inducing an over-valuation on the part of assured, is established." And further along in the same section, he says: "If there is anything in the policy that clearly indicates an intention on the part of the insurer to value the risk and the loss, in whatever words expressed, the policy is valued, otherwise it is open." Again, "No particular form of expression is necessary; the intention of the parties, gathered from the whole instrument, must determine the matter." Fuller v. Boston etc. Ins. Co., 18 Pick. 523.

It has been decided that a policy of a company whose charter limited its liability to a certain proportion of the actual value of the property insured, which refers to the value of the property as stated in the application of the insured, is a valued policy. 10 Cushing, 351. Other cases go so far as to hold generally, that a policy which refers to the valuation of the property as it appears in the application which is made a part of the policy, is a valued one. 1 Allen 63,

100 Mass. 475.

Without expressing an opinion as to the soundness of such construction when nothing further appears in the policy, we are satisfied that the policy before us, which contains the further stipulation, that "said Farmers' Insurance Company hereby agrees to make good unto the said assured, his heirs, executors, administrators or assignees, all such loss or damage, not exceeding in amount the several sums insured, as shall happen by fire or lightning to any of the aforesaid property, from the 28th day of March, 1873, at 12 o'clock at noon, to the 28th day of March, 1878, at 12 o'clock at noon, and to be paid ninety days after due notice and proofs of the same shall have been made by the assured and received at this office, with the terms and provisions of this

policy," shows, that it was not intended by the insurer to make the sum assured the measure or value of the damages, although the loss might be total. Proofs of loss or damage here required as a condition precedent to the payment, refer to cases of total as well partial loss. The amount of liability on the policy was left open to inquiry, limited, however by the amount of insurance named in the policy.

The court of common pleas, therefore erred, in rejecting testimony offered by the defendant below, as to the amount of actual loss. And the district court erred in affirming the judgment of the common pleas.

Judgments reversed and cause remanded. [This case will appear in 38 O. S.]

BAIL BOND IN STATE COURT EXONERATED FOR FOFEITURE THROUGH INTERVENTION OF THE UNITED STATES COURT.

KENTUCKY COURT OF APPEALS.

COMMONWEALTH

v.

OVERBY.

April 1st, 1882.

A bail bond having been executed in the Christian Circuit Court, for the appearance of Jno. H. Overby at its ensuing term, to answer the charge of passing a counterfeit United States treasury note, but the defendant having failed to appear because of the fact that the day following the execution of the bail bond, he was arrested by an officer of the United States and carried before a United States Commissioner, and by him held to appear and answer at the next term thereafter of the United States Circuit Court, by which tribunal he was, in due time, tried on the same charge for which he had been required to appear in the State Court, convicted and imprisoned.

Held: That the bail should not be liable upon the bail bond, because he was by the United States officer deprived of the power to surrender the defendant to the State Court; and, furthermore, because the defendant in this case could not have been tried and convicted, even if present in the Christian Circuit Court, after having been tried and convicted of the same offense by the United States Circuit Court.

Appeal from Christian Circuit Court.
Chief Justice LEWIS.

On the 19th of November, 1880, appellee, executed a bail bond for the appearance of John H. Overby in the Christian Circuit Court, at its ensuing February term, to answer the charge of passing a counterfeit United States treasury note, but the defendant having failed to appear, the bond was forfeited, and summons issued against appellee.

In his response he alleged the following facts which are conceded: That on the day following the execution of the bail bond, Overby was arrested by an officer of the United States and carried before a United States Commissioner, and by him held to appear and answer at the next term thereafter of the United States Circuit Court, held in the city of Louisville, the same charge for which he had been required to appear and answer in the State Court; that failing to give bail he was committed to the jail of Jeffer

son County, where he remained until February, 1881, when he was indicted, tried and convicted in the United States Court for the offense, and sentenced to confinement in the penitentiary of the State of New York for the term of five years.

The court below having overruled the demurrer to the response, and dismissed the proceeding against appellee, the Commonwealth prosecutes this appeal.

By the terms of the bail bond in such cases, the bail undertakes that the defendant shall appear in court at the time and place designated, to answer the charge upon which he is in custody, and at all times render himself amenable to the orders and process of the court in prosecution of the charge; or if he fail to perform either of these conditions, that the bail will pay to the Commonwealth the sum at which the penalty is fixed.

But it is expressly provided by law that the bail may, at any time before the forfeiture of the bond, surrender the defendant to the jailer of the county in which the prosecution is pending, and be thereupon exonerated. And for the purpose of surrendering him the bail, at any time before judgment against him, and at any place within the State, may arrest the defendant or by an endorsement upon a certified copy of the bail bond, may direct the arrest to be made by any peace officer of the State, or by any other person over twenty-one years of age, designated in the endorsement. And it is also provided that, if, before judgment is entered against the bail, the defendant be surrendered or arrested, the court may at its discretion, remit the whole or part of the sum specified in the bail bond.

There is, therefore, in the bail bond, an implied undertaking on the part of the Commonwealth, that the bail shall not be hindered or prevented by herself, or any other authority within the limits of the State, in surrendering the defendant before the forfeiture of the bond, and the farther undertaking that the Commonwealth has the power through her peace officers, to arrest the defendant, if within the State, and will so arrest him at any time before judgment against the bail, when he shall so direct.

It has accordingly been held by this court that, when the Commonwealth, by her own act, prevents the appearance of the defendant in discharge of the bail bond or recognizance, she should not enforce the penalty against the bail for non-compliance. Alquin v. Commonwealth, 3 B. M., 349; Kirby v. Commonwealth, 1 Bush,

114.

Although in this case the bail was not deprived of his right to surrender the defendant, and thus to become exonerated by the Commonwealth, he was effectually prevented exercising that right, as was the defendant prevented appearing in discharge of the bail bond by the United States government. And, in our opinion, it does not make any difference whether the non-appearance of the defendant in compliance with the bail bond, be caused by the Commonwealth, or by the United States government, for

CHURCH DISCIPLINE.

Upon principle, as well as according to the weight of authority in this State, the facts set forth in the response by appellee constitute a sufficient defense to the proceeding against him, and the demurrer was properly overruled.

In the case of the Commonwealth v. Terry, 2 Duval, 383, it was held by this court that, in a proceeding against the surety upon a forfeited recognizance, it was a sufficient defense that the defendant, being a soldier in the Federal army. was refused a furlough, and by reason thereof was unable to appear in discharge of the recognizance. And in the case of the Commonwealth v. Webster, etc., 1 Bush, 616, it was held that the defendant having been arrested by a provost marshal, and taken from the county where the prosecution against him was pending, the bail should not be made liable upon the bail bond, because he was, by the United States officer, deprived of the power to surrender the defendant.

But the case of the Commonwealth v. House, 13 Bush, 680, though the facts are not fully set forth, appears to be somewhat in conflict with the two just referred to, In that case it is conceded that if the Commonwealth, before the time stipulated for his appearance, arrests the principal and detains him at another place, so that he cannot appear at the time and place mentioned in the bail bond, the bail is exonerated. But it is intimated that the bail would not be exonerated when the principal is arrested and detained by the United States government. Perceiving no reason why the bail should be exonerated in the one case and not in the other, we must adhere to the doctrine announced in the

two cases in 2 Duval, and 1 Bush, supra, and overrule the case in 13 Bush, supra, so far as it is inconsistent with this opinion. But there is another ground upon which the bail in this case should be exonerated. The object of a bail bond or recognizance is to secure the appearance of the defendant in the court having jurisdiction, that he may answer the charge against him, and, if convicted, render himself in execution thereof. Manifestly, the defendant in this case could not have been tried and convicted even if present in the Christian Ciruit Court, after having been

tried and convicted of the same offense in the United States Circuit Court, still it was the same offense, for which he was held to answer in the State Court, denounced alike by the laws of the United States and of this State.

The judgment is affirmed.

THE STATE

V.

WM. LINKHAW.

The disturbance of a religious congregation by singing, when the singer does not intend so to disturb it, but is conscientiously taking part in the religious services, may be a proper subject for the discipline of his church, but is not iudictable.

Defendant was indicted for disturbing a religious congregation. The evidence as detailed by several witnesses was substantially this: Defendant is a member of the Methodist Church; he sings in such a way as to disturb the congregation; at the end of each verse, his voice is heard after all the other singers have ceased. One of the witnesses being asked to describe defendant's singing, imitated it by singing a verse in the voice and manner of the defendant, which "produced a burst of prolonged and irresistable laughter, convulsing alike the spectators, the Bar, the jury and the Court."

It was in evidence that the disturbance occasioned by defendant's singing was decided and serious; the effect of it was to make one part of the congregation laugh and the other mad; that the irreligious and frivolous enjoyed it as fun, while the serious and devout were indignant. It was also in evidence (without objection) that the congregation had been so much disturbed by it that the preacher had declined to sing the hymn, and shut up the book without singing it; that the presiding elder had refused to preach in the church on account of the disturbance occasioned by it; and that on one occasion a leading member of the church, appreciating that there was a feeling of solemnity pervading the congregation in consequence of the sermon just delivered, and fearing that it would be turned into ridicule, went to the defendant and asked him not to sing, and that on that occasion he did not sing. It also appeared that on many occasions the church members and authorities expostulated with the defendant about his singing and the disturbance growing out of it. To all which he replied: "That he would worship his God, and that as a part of his worship, it was his duty to sing." Defendant is a strict member of the church, and a man of exemplary deportment.

It was not contended by the State upon the evidence that he had any intention or purpose to disturb the congregation; but on the contrary it was admitted that he was conscientiously taking part in the religious services.

Defendant prayed the Court to instruct the jury that if the defendant did not intend to disturb the congregation he was not guilty.

This instruction his Honor refused, and among other things, told the jury that it would not excuse the defendant to say that he did not intend to disturb the congregation. The question is, did he intend to commit the act which did disturb the congregation? The jury must be satisfied

that there was an actual disturbance occasioned by the defendant's act. It is a general principle that every man is presumed to have intended the necessary consequences of his own acts.

There was a verdict of guilty. Judgment, and appeal by the defendant."

SETTLE, J.

The defendant is indicted for disturbing a congregation while engaged in divine worship, and the disturbance is alleged to consist in his singing, which is described to be so peculiar as to excite mirth in one portion of the congregation and indignation in the other.

From the evidence reported by his Honor who presided at the trial, it appears that at the end of each verse his voice is heard after all the other singers have ceased, and that the disturbance is decided and serious; that the church members and authorities expostulated with the defendant about his singing and the disturbance growing out of it; to all of which he replied that he would worship his God, and that as a part of his worship it was his duty to sing. It was further in evidence that the defendant is a strict member of the church, and a man of most exemplary deportment.

"It was not contended by the State upon the evidence that he had any intention or purpose to disturb the congregation, but on the contrary, it was admitted that he was conscientiously taking part in the religious services."

This admission by the State puts an end to the prosecution. It is true, as said by his Honor, that a man is generally presumed to intend con sequences of his acts, but here the presumption is rebutted by a fact admitted by the State.

It would seem that the defendant is a proper subject for the discipline of his church, but not for the discipline of the Courts. 1-69 N. C. Reports.

LIABILITY OF INNKEEPER FOR LOSS OF GUEST'S PROPERTY.

What great events from little causes spring. The original and ostensible cause of the Crimean war was, in the words of her Majesty, "the key of the back door of a mosque." Leaving a bedroom door unbolted was the origin of the conflict in Herbert v. Mark well. But, like the heroes of the chill heights of the Tauric Chersonese, the litigant innkeeper and his guest, who figure in the Law Times Reports of the 28th ult., are now at peace-concluded, let us trust, not on the principle of "leaving the door open," against which Mr. Disraeli inveighed, when he called upon her Majesty's Government, in 1855, to "shut the door, and let those who want to come in knock at the door, and then we shall have a safe and honorable peace."

Is a guest at an inn negligent in not locking his door? Such was the question presented in the case referred to (45 L. T. N. S. 649), on which three learned judges delivered elaborate judgments. The plaintiff, who was a solicitor, and his wife were staying at the defendant's

hotel, and it is recorded that, on the eventful night of Sunday, the 8th of May, the plaintiff went to bed about a quarter to twelve, while his good lady had retired about an hour and a half before. Under such circumstances, we are clearly of the opinion that it was, at all events, not the wife's duty to bolt the bedroom door. But, was that duty imposed on the husband? There was no necessity for having recourse to the feeble protection of "a wooden or iron pin, used to keep meat in form," as Dr. Johnson defines the instrument which was applied by the "little maid,' whom Wilks has immortalized; for the doorthough it had no handle on the outside, but a key that acted as a handle, and might have been prudently removed-was properly provided with a bolt. The plaintiff deposed on the virtue of his oath that he bolted the door when he went into the room, but opened it again to put out his boots. Did he then re-bolt it? He swore he did, but he exhibited some uncertainty in his evidence, and admitted that, shortly after the occurrence which gave rise to the action as next to be narrated, he said, in reply to an observation, that it was impossible to unbolt the door from the inside, "If that is so, I must have made a mistake;" and he certainly showed an absence of caution in other respects, by not removing the key from the outside, and by not depositing any valuables under lock and key in the wardrobe or elsewhere in the room. Be this as it may, it was discovered next morning that his watch, which he had left on a table near the bed, and his wife's watch and some jewelry, which she had left on the dressing-table, had been abstracted. The action was brought to recover the value of the stolen property; and the jury found that the loss would not have happened if the plaintiff had used the ordinary care that might be expect a from a prudent man under the circumstances, and did not happen through any wilful act or default on the part of the defendant or any se vant in his employ. They assessed the value of the property at £19 10s; and a verdict was en tered for the defendant, which the plainti sought to have set aside, on the grounds the there was no evidence of negligence on the part the plaintiff to go to the jury, and that his neghgence (if any) was not the proximate cause of the loss, which might have been avoided if the defendant had himself used proper care and dili gence.

Now in Calye's case (8 Coke 32, 1 Sm. L. C 122), it was said, "It was no excuse for the in keeper to say that he delivered to the guest th key of the chamber in which he is lodged, and that he left the chamber door open; but he ought to keep the goods and chattels of his guest there in safety." Again, in Morgan v. Ravey (6 H. A N. 267), the defendant was held liable, thongh the plaintiff had forgotten to lock his door, notwithstanding notices posted up cautioning travellers to lock their doors. And in Oppenheim v. White Lion Hotel Co. (L. R. 6 C. P. 51), find one of the judges saying, "I agree that here is no obligation on a guest at an inn tolk his

we

bedroom door. Though it is a precaution which any prudent man would take, I am far from saying that the omission to do so alone would relieve the innkeeper from his ordinary responsibility." Those cases were cited; but there are others that might be mentioned. For instance, in Mitchell v. Woods (16 L. T. N. S. 676), we find Kelly, C. B., holding that there was no obligation on a guest to lock his door, and that, consequently, his omission to do so was not negligence. And in the American case of Classen v. Leopold (2 Sweeny, 705), we find the court saying, "Calye's case has not thus far been overruled or questioned in this State. Nor do I perceive any reason why it should be. The doctrine of the case was that the sole object of the giving to and acceptance by the guest of the key of his chamber (there being no attendant circumstances to show a different one), was to enable him to secure privacy at his pleasure; that the entrance of thieves or suspicious characters into the inn without the knowledge or consent of the innkeeper, was to be provided against by the outer door, which was under the care and control of the innkeeper, and which it was his duty so to keep as to prevent such entrance; while as to those guests who obtained entrance with the knowledge and consent of the innkeeper, as well as to the servants, it was his duty to see that they were not thieves or suspicious characters, and if he entertained doubts as to their character, to take proper precautionary measures to preserve his other guests from loss; and that guests had a right to rely on the faithful performance of these duties by the innkeeper, and to believe that they might repose in security in their chambers, with unlocked doors, and that no necessity existed for locking the doors except for the purpose of securing privacy when they might desire it. There is no reason to be derived from the present state of society, civilization and commerce, why the doctrine should not still hold good. The only reason why a guest should be held guilty of negligence in not locking his door is that it is easier to rob a room, the door whereof is unlocked, than one, the door of which is locked. This reason existed at the time of Calye's case, and it is no more apparent to courts and guests at this present day than it

was then."

But, truly, the common law liability of innkeepers, on which Calye's case is the leading case, originated at a time when your Boniface was ordinarily the accomplice of cut-throats and highwaymen, while even locking your door was no protection against "a rat" in the arras, or the entry of some grim cut-purse through a secret panel in the wainscot. And as Wiles, J. observed in Oppenheim's case, Cöke, in the passage already quoted from Calye's case, "evidently means that the fact that the guest having the means of securing his door, and neglecting to avail himself of them, affords the innkeeper no excuse by way of plea as a matter of law." thought," said Bowen, J. in Herbert's case, "that, if it was any authority, it had long been killed

"I

by the judgment of Willes, J. in Oppenheim's case." And certainly, Oppenheim's case, and the still later case of Spice v. Bacon (36 L. T. N. S., 896), are distinct authorities establishing that, while there is no absolute duty or obligation on a guest to lock or bolt his door, and his omission so to do is not per se negligence, it is an element to be considered by the jury with other facts which might be proved, and which, taken together might amount to negligence. In accordance with this, is also, the American case of Bohler v. Owens (60 Ga. 185); and why such questions should be treated as questions of fact is well shown in Burgess v. Clements (4 M. & S. 311), where we find Lord Ellenborough saying: "I agree that if an innkeeper gives the key of his chamber to his guest, this will not dispense with his own care, or discharge him from his general responsibility as innkeeper. But if there be evidence that the guest accepted the key and took on himself the care of the goods, surely it is for the jury to determine whether this evidence of his receiving the key proves that he did it animo custodiendi, and with.a purpose of exempting the innkeeper, or whether he took it merely because the landlord forced it on him, or for the sake of securing greater privacy, in order to prevent persons from intruding themselves into his room." And see Cashill v. Wright 2 E. & B. 891; Armistead v. Wilde, 17 Ad. & E. 261; Jones v. Jackson, 29 L. T. N. S. 399. But, as Montague Smith, J. said in Oppenheim's case: "The law in Calye's case may remain untouched. But the fact of the guest having the means of securing himself, and choosing not to use them, is one which, with the other circumstances of the case, should be left to the jury. The weight of it must, of course, depend upon the state of society at the time and place. What would be prudent in a small hotel in a small town, might be the extreme of imprudence in a large city like Bristol, where, probably three hundred bedrooms are occupied by people of all sorts." For those reasons, we ourselves are quite of the opinion arrived at in Herbert v. Markwell-that it cannot be laid down as a proposition of law that leaving the door unbolted is not evidence of negligence, but each case must depend on its own circumstances, and not bolting the door is one of those circumstances; and that here, even if leaving the door unbolted was not in itself sufficient evidence of negligence to be left to the jury, there were other circumstances which, coupled with it, would be sufficient. Nor is it to be regretted if, apart from 26 and 27 Vic., c. 41, this case should give a lesson to any future guest "who forgot to bar the door, O."-Irish Law Times.

PROFANITY.

A few days ago, in England, a Parsee, being called as a witness, and refusing to be sworn either upon the Qld or New Testament or the Koran, was permitted to bind his conscience by holding openly in his hand a sacred relic, which