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the jury, in substance, that if they found that such exigency upon their part that the necessity the note was procured by fraud they should find for the caution required by the rule laid down for the defendant, unless they found that the would impose an unnecessary restriction upon plaintiffs purchased the note before maturity for the business. à valuable consideration without knowledge of In our opinion the plaintiffs did not show the fraud, and in case they found that the plaint- that they purchased without knowledge of the tiffs did so purchase the note, then the ver- fraud, and the judgment must be affirmed. dict should be for them. The plaintiffs do not complain of this instruction; but they say that

LIFE INSURANCE.—WAIVER.-ESTOPPEL. under it the verdict should have been for them, because, while the jury might have been justi

NEW YORK COURT OF APPEALS. fied in finding that the note was procured by fraud, the evidence was conclusive that it

ROBERTSON 0. THE METROPOLITAN LIFE INS. Co. was purchased by plaintiffs without knowledge of the fraud. The purchase was made by one Ten

April 11, 1882. ny, a member of the plaintifts' firm,.who testified that he had no knowledge of any of the circum

A policy of life insurance provided that it should ccase

if any premium should not be paid within thirty days stances connected with the note. To rebut this after it fell due. A premium having fallen due Jan. io, evidence the defendant showed that there had

1877, Plaintiff's agent called on Feb. 10 to attend to it been other victims of hog-cholera notes in that

and was informod by defendant's secretary that it had

been attended to, but in fact the premium was never community, and that Tenny had been informed paid. Held, that defendant was not estopped by tho that it was claimed that the hog-cholura notes, as

statement of its secretary from asserting the forfeiture, a class, were fraudulent. But it is not shown that

as plaintitf was not harmed or prejudiced thereby, the

policy having lapsed before such staternent was made, and whatever information Tenny received upon this that there was no waiver of the forfeiture, as the socresubject was received after the purchase. Tenny's tary's statement was made under a mistake of fact. testimony, therefore, is uncontradicted.

This is an action upon a policy of insurance There remains, then, only to be considered issued by defendant to plaintiffon the life of her whether proof that Tenny was at the time of þusband. It provided that any payment of prethe purchase without knowledge of the fraud mium could be made within thirty days after the was sufficient. The defendant contends that it same became due and payable by the term of the was not. He contends that while Tenny's policy. It also provided that in case any praknowledge would be deemed the knowledge of mium should not be paid on or before the time the firm, his ignorance would not necessarily be required by the policy the policy should cease, deemed the ignorance of the firm. It must be and all previous payments of premiums should aulinitter, of course, that the fact that Tenny be forfeited to the company. "It was also prowas ignorant of the fraud would not show that vided that if, after the company has received his partners were. The general rule is that three or more annual premiums, the assured should where the transferee of a fraudulent note seeks to fail to pay any further premium when due, upon recover thereon he has the burden of showing a surrender of the policy within thirty days after that he purchased in good faith. Now, where such unpaid premium became due, the company the purchaser is a partnership, will it be deemed would in exchange therefor issue a paid up policy a purchaser in good faith if it is simply shown for at least the full amount of even dollars of prethat the purchasing partner had personally, no miums received by it on the policy. The policy knowledge of any fact which would preclude was issued in 1868. Plaintiff failed to pay the good faith? No decision directly upon this portion of the annual premium which fell due point has been cited by counsel, and none has January 10, 1877, on that day or within thirty come to our notice. Upon principle, it appears days thereafter. It appeared that on Febuary to us that the question should be answered in 10, an agent of plaintiff went to defendants ofthe negative. We know of no ground upon fice and stated to its secretary that he had come which it could be presumed that the purchasing to attend to Mr. Robertson's premium, and would partner's copartners were ignorant of the fraud- like to know what the condition of it was. The ulent character of the note because he was. He secretary looked at the books and replied that Mr. might have been the one selected and put for- Robertson had attended to that himself, plaintward to make the purchase, because he was ignoiff's agent understanding the secretary to mean rant. We are aware that if the rule is as we that Mr. Robertson had paid the premium. Uphold that where a partnership, seeks to recover on the return of her agent with the information as a bona fiile purchaser Of a promissory note fraud- thus obtained from its secretary plaintiff learned ulently procured the burden is upon the partner- from her husband that the premium had not ship to show that all the members were ignorant been paid. Three or four days after she went to of the fraud at the time of the purchase, it is defendant's office and tendered the amount of the necessary for the entire safety of a partnership premium then past due, and the company rein purchasing á note that all the members fused to receive payment. Upon the trial de should be consulted or inquired of by the pur- fendant's secretary testified that he bad no recol. chasing partner. But this is imposing no great lection of stating to plaintiff's agent that the burden. We cannot suppose that promissory policy had been attended to. There was no alnotes are often purchased by partnerships under legation in the complaint and the case does not disclose that there was any claim at the trial the same clearness and certainty as any other that the premium had actually been paid or in fact alleged by the defendant in bis defence, any manner attended to or arranged prior to Feb- that is to say, the proof must be such in amount ruary 10, 1877.

that if the single issue of the sanity or insanity Held, That as by the very terms of the policy of the defendant should be submitted to the jury it ceased by the non-payment of the premium in a civil case, that they would find he was inwithin the time stipulated, it could only be re- sane." The rule thus established in this state vived or continued in life by a new agreement, is not subject to the criticism that it deprives a by the operation of an estoppel or of a waiver. defendant in a criminal case of the benefit of a No new agreement was proved or alleged in the reasonable doubt; for, although a defendant is complaint. There was no estoppel, as the plaint- required to prove every fact, in the defence upon iff was not harmed or prejudiced by the mistaken which he relies, by satisfactory evidence,-evior untrue statement made to her agent on Feb

dence which ordinarily produces moral certainty ruary 10, 1877. The policy had then lapsed and or conviction in an unprejudiced mind (S 1853, it was too late for her to do anything to restore or C. C. P.), yet if out of his evidence, together continue it. There was no waiver of the forfeit- with the avidence of the prosecution,-all the ure of the policy, because what was said by the evidence on both sides,—there arises a reasonasecretary on February 10, 1877, was plainly said ble doubt about it, he is entitled to the benefit under a mistake of fact.

of the doubt. But'it will be observed, that it is Ordinarily a party should not be held to have the corpus delicti, -the criminal act—which must waived a forfeiture in the absence of facts consti- be proved beyond a reasonable doubt (S 2061, C. tuting an estoppel, unless he he intended to C..P.), and not a fact in the case itself. In that waive it, nor can he be held to have waived it respect the rights of the defendant were propunless he knew of the facts constituting the for-erly guarded in the trial of the case. For while feiture. 25 Alb. L. J., 274; 2 Platt on Leaser,

the court told the jury that insanity was a fact 469; 81 N. Y, 419; 46 Barb., 333.

for the defendant to establish by satisfactory Judgment of General Term, affirming judg-proof, it at the same time charged them that the ment for plaintiff, reversed, and new trial burden of proof to make out the guilt of the degranted.

fendant was on the prosecution; "that the de

fendant must be presumed innocent until his CRIMINAL LAW-INSANITY-BURDEN OF

guilt is established by proof; and that he is enPROOF.

titled to the benefit of all reasonable doubts, and

cannot be convicted of any degree of crime, unSUPREME COURT OF CALIFORNIA.

less the jury are convinced by the evidence in

the case, beyond all reasonable doubt, that he is PEOPLE 0. HAMILTON.


Judgment affirmed.

May, 1882. In criminal cases, where insanity is relied upon as a defence, the burden of proof is on the defendant, and the proof must be such in amount that if the issue of sanity or insanity of the defendant were submitted to a jury in a dvil case they would find he was insane.

IOWA. Indictment for murder. Among the errors assigned by the defendant, it is alleged that the

(Supreme Court.) court erred in its instruction to the jury on the subject of insanity, which defence was interposed to the charge.

Conn, v. CONN AND OTHERS. JULY 12, 1882. McKEE, J.

Homestead - Dower Election by Widow.-A widThe court did not err in charging the jury on ow may take out of her real estate owned by her the subject of insanity as follows: “Where in- husband either the distributive share or the sanity is relied upon as a defence, the burden of homestead for and during her life, but she canproof is on the defendant; and that the proof not take both ; and occupancy of the homestead must be such in amount that if the single issue for more than 10 years after the death of her of the sanity or insanity of the defendant should husband should be regarded as an election to be submitted to the jury in a civil case they take it for life, instead of her distributive share must find that he was insane.

The insanity or dower. proof.” Such is the law as expounded by this including her share inherited from a deceased court in People v. McDonnell, 47 Cal. 134. The child, and the mortgage was subsequently foreinstruction is substantially the same as was ap- closed, the purchaser at the mortgage sale beproved in that case. Insanity, when relied comes a tenant in common with the surviving upon as a defence in a criminal case, is a fact. heirs, and cannot acquire a tax title to the prejAs a fact it must be proved as any other fact judice of his co-tenants; and an intervenor in the case. “It must,” says the court in Peo- holding under a quitclaim deed from him has no Dle o. Cofman, 24 Cal. 230, "be established with | better right,

Digest of Decisions.

ORMOND v. CENTRAL Iowa Ry. JULY 12, 1882. and the laws of the state wherein it was made,
Custom-Negligence-Railroad.--The custom of

80 far as they attempt to regulate interstate comit neighborhood is not admissible in evidence to

merce, do not enter into it as a part of the con

tract, being repugant to the federal constitution. provo a want of contributory negligence, in an action brought by plaintiff against a railroad

Beck, J., dissenting. compiiny for damages caused by the burning of A contract is subject to the laws of the state stacks of oats in a field along the line of defend

wherein it is made and which are applicable ant's right of way, and caused by sparks from

thereto. defendant's engine.

A state may enact statutes regulating charges In such action it is competent to show that on shipments of goods, unless they should be plaintiff raised the oats on rented land on shares found to be in conflict with the constitution of to prove that he did not own all the gruin de- the United States as a regulation of commerce, stroyed.

and in the absence of any legislation by congress upon the subject, such laws cannot be regarded

as an encroachment upon the authority of the Stuhlmiller, Adm'r, v. CLOUGHLY.JULY 12, 1882, general goverment.

Malpractice - Measure of Dumage.--In an action Such regulations of commerce only as impose for damages for wrongfully causing the death burdens and restrictions are forbidden to the of a married woman by negligent medical treat

states by the constitution of the United States, ment and want of ordinary skill as a physcian, but laws which aid in securing expeditious and an instruction to the effect that the damages, if cheap transportation, and which remove burdens, any, thus caused should be assessed the same as impediments, and restrictions imposed on comthough she had been an unmarried woman, tak- merce by common carriers through unnecessary ing into acount her age, health, habits, educa-delays, and by their unreasonable and unjust tion, expectancy in life, and her degree of ability exaction and discriminating charges, are not to perform various kinds of labor and earn money. regulations of commerce within the contemplais erroneous, as the damnages should not be assessed tion of the constitutiion of the United States. on the sainc basis as though she were unmarried.

DICKEN v, MORGAN. JULY 12. 1882.

Promissory note - Interlineation-Statement of SclContract-Consuleration--Highway over Land.- ler.-In an action upon a promissory note deThere is nothing in the statutes of this state fendant is not prejudiced by the instruction that which requires exceptions to the decree in an

if the word "bearer” was interlined after delivery equitable action to be taken to justify a trial on of the note that would be a material alteration appeal.

and vitiate the note; but if they should find Plaintiff sold land to defendant, and for part that the word "bearer was interlined at or beof the consideration agreed to procure the legal fore delivery, the note would be negotiable and establishment of a highway across one side of

the plaintiff would be entitled to recover, though the land. This he failed to accomplish. Held, they found that the note was procured by fraud that for that part of the consideration money

and without consideration, even if erronous, agreed to be paid for the establishinent of the unless there was some evidence of fraud or want highway defendant was not liable.

of consideration. Where an action was brought

against the road A statement by a seller of property as to its supervisor to prevent the opening of a certain value is a mere opinion, and not to be treated as road, and there was a trial involving the validity a false representation, however insincere the of said road, and the opening of the same was seller inay have been; and such statement is no perpetually enjoined, this must be regarded as defence to an action upon a note given for the an adjudication binding upon the public and up property on all

persons interested, and no road could there- A party cannot rescind an agreement involvafter be legally established along said line. ing several matters without surrending or

offering to surrender what he has received upon

such agreement. JOHN A. CARTON & Co. v.ILLINOIS CENTRAL R. Co. An agreement by parol cannot be admitted JULY 12, 1882.

in evidence to contravene the terms of a written Constitutional Law-Freights.-An act of the contract. So held, where a note sued on was state legislature, whose object and purpose is to attempted to be contravened by proof of an agreecontrol and regulate the shipment of freight to ment that it should be paid by commissions for points in other states, is in violation of article 1, future services as agent of the holder. $ 8, of the constitution fo the United States, as An agent appointed to collect a note has no being legislation on inter-state commerce-a authority to bind his principal by his opinion as subject which is in its nature national, and to the reading of a particular word in such requiring the exclusive legislation of congress.

note. An inter-state contract of shipment, entered The assignee of a note is not affected by an ininto by a common carrier, is an entire contract, terlineation made before he purchased the note,


1 Olio Law Journal.


CIRCLEVILLE, Ohio, JULY, 26, 1882. COLUMBUS, OHIO, : : AUGUST 10, 1882.

Publishers of the Ohio Law Journal.

Columbus, O.

GENTLEMEN: With this number we complete our second

Some weeks since I promised you to write for

your Journal, and for publication, my views on year.

Virginia Military Land titles and the rights of The Ohio Law Journal has taken its place locators and owners of lands in the Virginia permanently as one of the standard law pub- several acts of congress, on the subject, none of

Military district in Ohio, and the bearing of the lications of the country, and as a representi- them having ever been repealed. tive of the great State of Ohio, is at least I presume it is well understood that Virginia

ceded to the United States all right &c., which fairly creditable. We ought perhaps to leave this remark for others to make; but others of country within the limits of her charter

that commonwealth had to the territory or tract may not have the opportunity-possibly not situate, lying and being to the north west of the mind to do so.

the river Ohio, reserving that part of the country We would simply say however, that we

between the rivers Scioto and Little Miami, on

the north west side of the said river, Ohio, for the have been nobly secondel in our effort to give use of the officers and soldiers of the contito the profession of this great State, a Law nental line or so much of the country between Journal—a medium by which the action of those rivers as might be necessary to make up

any deficiency of good land, on the southeast the highest court of the State could be at once side of said river Ohio, which had been reserved transmitted to those most deeply concerned, by law for the Virginia troops upon continental as litigants, attorneys or as lawyers at large. establishment. We are proud of the fact that our subscribers, A deficiency of good land for the satisfaction our patrons, those who appreciate our paper of said troops on the southeast side of said river best and pay for it most promptly, are the Ohio, having been reported to congress, she passed very best and most successful lawyers of the

her act of August 10th, 1790, entitled “An Act to State. town, city and

enable the officers and soldiers of the Virginia

line on continental establishment to obtain county in Ohio.

It is but natural obedience to the law of cause and effect. No

west of the

river Ohio, between the Little Miami and Scioto." lawyer can succeed except by knowing the law. U.S. L. Vol. 1, p. 182. And the law of the first importance to all And on the 9th day, of June, 1794, amended lawyers, is the law of their own state. The her said act. U. S. L. Vol. 1, p, 394. infallible indication of a successful lawyer is On March 23rd, 1804, congress, passed an Act his familiarity with recent enactments and judi- entitled "an Act to ascertain the boundary of cial decisions.

the lands reserved by the state of Virginia, There is but one method of obtaining these

north west of the river Ohio, for the satisfaction immediately after their enactment and pro

of her officers and soldiers on continental estab

lishment and to limit the period for locating mulgation and that method is by reading the

the said lands." Ohio LAW JOURNAL. And the ouly method by

By the 1st section of this act she declared, which the publication of a law journal is ren

“that the line run under the direction of the sur-dered possible is by that generous support veyor general of the United States from the source which we derive from the members of the

of the Little Miami toward the source of the Scioprofession.

to, and which bounds on the east, the surveys of the To our old friends we would further say; lands of the United States, shall, together with that prompt renewals accompanied by cash its course continued to the Scioto River, be conwill be until Sept. 1st, particularly gratifying sidered and held as the westerly boundary line, and opportune.

north of the source of the Little Miami, of the Look over your files of the Law Journal, territory reserved by the State of Virginia, and ascertain at once whether any are missing between the Little Miami and Scioto Rivers, for

the use of the officers and soldiers of the contiWe have but few back numbers! Those who

nental line of that state, provided that the State come first will be first served of course.

of Virginia shall within ten years after the passWhen you have found what numbers you de-ing of this act, recognize such line as the boundsire, let us know at once—with your order for

ary of the said territory." renewal, and we will complete files as far as By the 2nd section she provided “thai all the our numbers on hand will go. Do not wait ! | officers and soldiers or their legal representatives Attend to this at once!

who are entitled to bounty lands within the


above mentioned reserved territory shall com- after the passing of this act, be niade on tracts plete their locations within three years after the of land for which patents have previously been passing of this act, and every such officer and issued, or which have been previously surveyed, soldier, or his legal representatives, whose bounty and any patent which may nevertheless be deland has or shall have been located within that tained for land located contrary to the provisions part of the said territory to which the Indian of this section, shall be considered as null and title has been extinguished shall make return of

L. р his or their surveys to the Secretary of the These acts extending the time for locating Department of War within five years after the lands and returning surveys, were continued passing of this act, and shall also exhibit and to the 1st day of January, 1852, since when no file with the said Secretary and within the same acts have been passed extending the time to time, the original warrant or warrants under make new locations, but on the 3rd day of March, which he claims, or a certified copy thereof, 1855, congress passed an act extending the time under the seal of the office where the said for making surveys &c., as follows: warrants are legally kept: which warrant or “Sec. 1. That the officers and soldiers of the certified copy thereof shall be sufficient evi- Virginia line on continental establishment, dence that the grantee therein named or the their heirs or assigns, entitled to bounty lands, person under whom such grantee claims, was which have, prior to the first day of January, originally entitled to such bounty land, and Anno Domini 1852, been entered within the every person entitled to said lands,' and tract reserved by Viginia, between the Little thus applying shall thereupon be entitled to Miami and Scioto rivers, for satisfying the legal receive a patent in the manner prescribed by bounties to her officers and soldiers upon conti

nental establishment, shall be allowed the furAnd the 3rd section of said act declared : ther time of two years from and after the passage

“That such part of the above mentioned re- of this act to make and return their surveys and served territory as shall not have been located, warrants, or certified copies of warrants to the and these tracts of land within that part of the "General Land Office." "U. S. L. Vol. 10, p. 701. said territory to which the Indian title has been The period limited in this act expired March extinguished, the surveys whereof shall not 3rd, 1857. have been returned to the Secretary of War On the 18th day of February, 1871, congress within the time and times prescribed by this ceded to the State of Ohio the lands remaining act, shall thenceforth be released from any claim "unsurveyed and unsold” in the Virginia Mili. or claims for such bounty land, and shall be dis- tary District. U. S. L. Vol. 16, p. 416. posed of in conformity with the provisions of And on the 25th day of March, 1872, the lege The act entitled, "An Act in addition to, and islature ceded the same lands to the Trustees of modification of the propositions contained in the the "Ohio Agricultural and Mechanical College," act entitled 'An Act to make the people of the (Laws of Ohio, Vol. 69, p. 52) to whom the eastern division of the territory, north west of Honorable Aaron F. Perry furnished an opinion the river Ohio, to form a Constitution and State that under the 3rd Section of the said act of government, and for the admission of such State congress of March 23rd, 1804, all the location of into the Union, on an equal footing with the lands in said Military District, standing upon original States, and for other purposes."

entry merely, and upon entry and surveys not Previous to the expiration of the three years returned to the "General Land Office" (Substilimited in said first section for completing loca- tuted by the Act of Congress of April 25th, 1812, tions on the 2nd day of March, 1807, congress for the Secretary of War. U. 8. L. Vol. 2, p. 717,) passed an act extending the time for locating on or before the 3rd day of March, 1857, had unlands in said district, by section one of which der the 3rd Section of the said act of March 23rd, she provided "That the officers and soldiers of 1804, lapsed to the United States, and within the Virginia line on continental establishment, the meaning of the said act of February 18th, their heirs or assigns entitled to bounty land 1871, were "unsurveyed and unsold lands," and within the tract reserved by Virginia, between by the terms of said cession and the act of the the Little Miami and Scioto rivers, for satisfying legislature of Ohio, the title to said lapsed locathe legal bounties to her officers and soldiers up- tions had become vested in the said Trustees. on continental establishment, shall be allowed This opinion brought congress to an explanation a further time of 3 years from the 23rd of March, in the form of her act of May 27th, 1880, U. S. next, to return their surveys and warrants, or L. Vol 21, p. 142, entitled "An Act to construe certified copies of warrants, to the office of the and define 'An Act to cede to the State of Ohio Secretary of the War Department, anything in the unsold lands in the Virginia Military Disthe act entitled, An Act to ascertain the bound- trict in said State,' approved February 18th, ary of the lands reserved by the State of Vir- 1871, and for other purposes," section one of ginia, north west of the river Ohio, for the satis- which is in the following words, viz: faction of her officers and soldiers on continental "That the Act ceding to the State of Ohio the establishment, and to limit the period for loca- lands remaining 'unsurveyed and unsold' in the ting the said land, to t'e contrary notwith-Virginia Military District in the State of Ohio, standing. Provided that no locations, as afore- had no reference to lands which were included said, within the above mentioned traot shall, I in any survey or entry within said district

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