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not only an undertaking between each subscriber and had been “reliably subscribed," was fulfilled. It was
affirm the proceedings below, or reverse, aud either | timated as nearly as practicable,there is no grouud for order a new trial or discharge the prisoner. That no alleging substantial error merely because of an unbalconstitutional right of the party is invaded must be a anced bid under whioh the contract was let, and if the self-evident proposition, or it is a privilege which is cost of the work has not thereby been euhanced there granted, of which he may, but not must, avail him is no ground for alleging fraud. In the case cited it self. I think that the sounder doctrine which recog. bad been determined that the contract was free from nizes a distinction between jeopardy incurred with the fraud. The case of Brady v. Mayor, 20 N. Y. 312, is consent of the prisoner and jeopardy incurred without not a precise authority for the petitioner, but the that consent. We hold that the jurisdiction of the grounds of the decision are sufficient to sustain this Oyer and Terminer to try the defendant again under contention. The petitioner has a strong equity for his indictment is not affected. The offense charged the reduotion of this assessment. He has no benefit was within its jurisdiction, and the judgment of the whatever from the excessive amount paid to the con. trial court having been reversed for errors committed | tractor, and there is no reason why that amount should on the trial, the case stands as though there had been fall upon him or his lots. The city, in making street 10 trial. The verdict is expunged, and there is no de improvements, the expense of which is to be charged termination in regard to the matter but the judgment to the owners of the property in the vicinity of the imof the appellate court. The defendant must go back and provements, acts iu some sense as the agent of such stand his trial under the indictment, as thought he had owners in making the improvements (Lake v. Trusnever been tried; for he himself has renounced the tees, 4 Denio, 520), and it should in the discharge of bar which was effective to prevent his further trial for its assumed agency be required to exercise reasonable the offense charged. June 5, 1888. People v. Palmer. care and diligence in connection with the work. If Opinion by Gray, J.
by gross negligence on the part of the city or the MASTER AND SERVANT-NEGLIGENCE OF FELLOW
fraud of its officers, the expense of the work has been SERVANT. – Plaintiff was injured while in defendant's
largely and unnecessarily increased, it is certaiuly unemploy, the accident being due to the dullness of a
just that the eonsequences of the wrong should be viscircular saw and the need of its being reset. The em
ited wholly upou the owners of the property in the viployers had provided sharp saws to replace dull ones,
cinity of the improvement. It is just in a case like and a co-servant, whose duty it was to sharpen and re
this, that the excessive aud unuecessary expeuse set saws when dull, had failed to do so on this occa
should be borne by the whole body of tax payers sion, though requested by plaintiff. Helil, that de
of the city instead of being cast upon a few lot-owners. fepdaut was not liable, June 5, 1888. Webber v. Piper.
June 5, 1888. In re Anderson. Opinion by Earl, J. Opinion by Finch, J.
Ruger, C. J., Audrews and Gray, JJ., dissent. MUNICIPAL CORPORATIONS--PUBLIC IMPROVEMENTS
TAXATION-ERRONEOUS ASSESSMENT--BURDEN OF -ESTIMATES-COLLUSION-REMEDY.-Under the New
PROOF.-Under the laws of New York of 1880, chap. York act of 1873, chap. 335, $ 91, all contracts for work
269, which authorizes a review on certiorari of assessto be done in New York city involving an expendi
meuts in respect to illegality, over-valuatiou, and ine
quality of valuation, at the instalice of any person or ture of more than $1,000 must be let to the lowest bidder, in a manner fixed by ordinance of the common
corporation aggrieved by an assessment in any of the council; and it was established by ordinance that in
respects mentioned, in order to be entitled to a reducall such cases the commissioner of public works
tion on the grouud of inequality, it does not suffice should issue proposals, and advertise for bids, and
that the claimant show, that in a particular instance when necessary cause a survey of the work to be made
property on the same roll, and in immediate proximby a competent engineer, and that the advertisement
ity to bis, is assessed at a lower valuation; he must should state as near as possible the quautity and qual
prove that he is subjected to the payment of more than ity of work done. Held, that an estimate which was
his just proportion of the aggregate tax. June 5, 1888. only a random guess, and placed the amount of stone
People, ex rel. Warren, v. Carter. Opinion by Anexcavation at more than double, aud earth excavation
drews, J. at less than one-half the actual amount, did not form a basis for a valid contract. Such estimates, taken in UNITED STATES SUPREME COURT ABconnectiou with a bid of over five times the actual
STRACT. worth for earth-work, and less thau 124 percent of the actual cost of stone-work, thus showing on its face as INSURANCE – ACCIDENT- SUICIDE — PRESUMPTION, the lowest, but really nearly the highest, raises a just -A policy of accident insurance provided that it inference that the contract was the result of fraud and should not extend to any case of death or personal incollusion. In such a case, under the Laws of New jury, unless it was established by direct and positive York of 1880, chap. 550, $ 12, which provides that no evidence that such death or personal injury was court shall have power to vacate or reduce an assess caused by external violence and accidental means. ment for any local improvement in New York city, The insured was found dead with a pistol bullet except to reduce an assessment to the extent the same l through his heart. Held, (1) that the court did not may have been increased by reason of fraud or sub err in instructing the jury that the law would presume stantial error, & property-owner may have his assess that the death was not caused by suicide, but would, ment reduced the full amount which it exceeds the on the contrary, presume that it was unintentional on actual cost of the improvement. It is not needful for the part of the insured, within the meaning of the us to find that there was actual fraud, but it is suffi policy; aud that plaintify, in the absence of rebutting cient that all the facts of the case were such as justi- evidence, was entitled to the benefit of such presumpfied an inference of fraud in the court below. The tions. The policy provided that uo claim should be case of Protestant Episcopal Public School, 75 N. Y. made under it, where the death of the insured was 3A, 18 not an authority for the city in this case. We caused by "intentional injuries iniicted by the indo not hold that every unbalanced bid is per se fraud- | sured or any other person.” Held, (2) that the court ulent, or evidence of substantial error. An unbal erred in instructing the jury that if the insured was anced bid that does not materially enhance the aggre murdered, the means used were “accidental” as to gate cost of the work cannot be complained of. If him, and plaintiff would be entitled to recover. (1) there is no deception or mistake as to the quantities | There is 310 escape from the conclusion that under the and if the ordinances have fairly been complied with, 1 issue presented by the general denial in the answer, it and the quantity and quality of the work has been es- was incumbeut upon the plaintiff to show, from all the
evidence, that the death of the insured was the re ries inflicted by another person. Nevertheless the
tion, and on machinery therein, it appeared that a though not the more powerful advocate. Williams at shaft from the engine-room furuishing the motive | last said to his rival, “I get all the verdicts, and you power to the mill, and a box or spout carrying the get all the judgments." A famous pupil of Van Buren shavings from the mill to the engine-house, were the both in law and in politics, Benjamin F. Butler, afteronly connections between the two buildings. There wards attorney-general in his cabinet, finely contrasted was a road-way between them, and no evidence of any them from his own recollection of their conflicts other addition, Held, that the policy included the when he was a law student. “Never," he said, “wero engine-room and engine. A “mill” is defined to be two men more dissimilar. Both were eloquent; but " (1) An engine or machine for grinding or comminu. the eloqueuce of Williams was declamatory and exting any substance; * * * usually having a word citing, that of Van Bureu insinuating and delightful. prefixed, denoting the particular object to which it is Williams had the livelier imagination, Van Buren the applied. * * * (2) The building with its machinery sounder judgment. The former presented the strong where grinding or some process of manufacturing is points of his case in bolder relief, invested them in a carried on." Webster. “The original purpose of more brilliant coloring, indulged a more unlicensed mills was to comminute grain for feed, but the word and magnificent invective, and gave more life and mill is now extended to engines or machines moved variety to his arguments by his peculiar wit and inby water, wind or steam, for carrying on many other imitable humor, But Van Buren was his su perior in operations." Imperial. Here it conclusively appears analyzing, arranging and combining the insulated mathat the engine in the engine.room was the only mo. terials, in comparing and weighing testimony, in untive power for propelling any of the machinery in raveling the web of intricate affairs, in eriscerating either of the buildings. The engine was used for no the truth from the mass of diversified and conflicting other purpose. It was therefore an essential part of evidence, in softening the heart and moulding it to the mill. Without it there would have been no com- his purpose, and in working into the indgments of his plete mill. The iusurance was upon the “planing hearers the conclusions of his own perspicuous and mill building and addition,” and upon the “ma persuasive reasonings.” Most of this is applicable to chinery, including shafting, gearing, belting, saws, Van Buren's career on the wider field of politics; and tools, force-pump and hose therein." It is claimed much hero said of his early ad versary on the tobaccothat the engine-room cannot be construed to mean an stained floors of country court-houses might bave "addition " to the "planing-mill building," because it been as truly said of a later adversary of his, the does not join directly upon the same; but as we have splendid leader who, rather than Harrison, ought to seen, they were both essential to the completion of bave been victor over Van Buren in 1840, and over the mill. The motive power was by means of pulleys, whom Van Buren rather than Polk ought to have belts and shafts transmitted from the engine in the been victor in 1844. engine-room to the machinery in the main building. The law reports give illustrations of Van Buren's And tbe waste shavings, etc., were conveyed from the precision, his clear and forcible common-sense, and latter building to the engine-room to generate heat to his aptitude for that learning of the law in which the propel the engine. Thus the two buildings were not great counsel of the time excelled. In 1813, soon after only connected, but the machinery in each was inse- his service began as State senator, he delivered an parable, while the whole continued to be a planing. | opinion in a case of "escape;" and in very courteous mill. The words "planing-mill building" would seem words exhibited a bit of his dislike for Kent, then to be broad enough to include the engine-room. The chief justice of the Supreme Court, whose judgment words of the policy, “plauing-mill building and addi- he helped to reverse, as well as his untipathy to imtion," cannot be of less significance. Especially is this prisonment for debt, which he afterward helped to so in the absence of any proof of any other addition. ) abolish. It was a petty suit against the sureties upon True Mr. Roe did not prove there was no other addi-the bond given by a debtor. Under a relaxation of tion; but he did prove this one, and thereby estab- | the imprisonment for debt recently permitted, the lisbed, prima facie, that the subject-matter answered | debtor was, on giving the bond, released from jail, the designation in the polioy. The buildings were uot but upon the condition that he should keep within only connected as stated, but were both in the same the "jail liberties,” which in the country counties curtilage constructed for and devoted to the same geli- was a prescribed area around the jail. His bond was eral yurpose and none other. The fact that the pre- to be forfeit if he passed the "liberties." While the mium paid was 6 per cent for one year, is a circum- debtor was driving a cow to or from pasture, the latstance in favor of this view rather tban against it. ) ter contemptuously deviated “ four, six or ten feet" Stress is laid upon the fact that the engiue, which was from the liberties. The driver, yielding to inevitable the principal machine, was not specifically mentioned bucolio impulse and forgetting his bond, leaped over in the policy. But we are inclined to think that it the imaginary line to bring back the cow. He was was covered by the word “ machinery," and that the without the liberties but a moment, and afterward other things were specifically enumerated for fear duly kept within them. But the creditor was watchtbat they might not otherwise be included. Wis. Sup. ful, and for the technical “escape" sued the sureties. Ct., Feb. 28, 1888. Home Mut. Ins. Co. of California
| Although the debtor was within the limits when suit 5. Roe. Opinion by Cassoday, J.
was brought, the lower court refused to pardon the debtor's technical and unintentional fault. At com
mon law the creditor was entitled to satisfaction of EXTRACTS FROM SHEPARD'S MEMOIR OF the debtor's body; and the milder statute establisbMARTIN VAN BUREN.
ing jail liberties was, the court said, to be strictly
construed against the debtor; it was not enough that WILLIAMS, although his very name is nowadays the creditor had the debtor's body when he called for
I hardly known, we cannot doubt from the uni- | it. The Supreme Court, headed by Kent, affirmed versal testimony of contemporaries, had extraordinary this curiously harsh decision. In the Court of Errors forensic talents. He was a Federalist; and the most
Van Buren joined Chancellor Lansing in reversing
Van Buren joined Chancellor Lansing decisive proof of Van Buren's rapid professional the rule upon an elaborate review of the law, which growth was his promotion to be Williams's chief com to this day is important authority, and which could petitor and adversary. Van Buren's extraordinary | not have been more carefully done bad something application and intellectual clearness soon established greater seemed at stake than a borine vagary and a bim as the better and the more successful lawyer, few dollars. The young lawyer, wearing for a time the judicial robes, now sat in a review, by no means val at the bar than in the politics of New York, gavo unpleasant, of the utterances of magistrates before a contrary opinion; but after killing Hamilton in 1804 whom he bad until then stood in considerable awe; and yielding up the vice-presidency in 1805, his brilaud seized the opportunity, doubtless with a keen per liant professional gifts were exiled from New York. ception of the drift of popular sentimeut on matters On his return in 1812 from years of conspiracy, advenof personal liberty, to enlarge the mild policy of the ture and romance, he took up the discredited Medcef later law. When it was urged that if the law were Eden claim; and in the judicial test of the question not technically administered, imprisoned debtors he, and not Hamilton, proved to have been correct. would of a Sunday wander beyond the limits," se- The struggle went on in a number of suits; and when curely able to return before Monday, when the cred- in 1823 the question was to be finally settled in the itor could sue-Van Buren, with a contemptuous court of last resort, Burr, fearing, as he himself intifling at the Supreme Court, confessed in Johnsonianmated to the court, lest the profound suspicion under sentences his lenient teniper toward these “stolen / which he rested might obscure and break the force of pleasures"-his willingness that debtors should snatch | his legal arguments, or conscious that his past twenty the “ few moments of liberty, which although soured years had dimmed his faculties, called to his aid Van by constant perturbation and alarm, are notwith Buren, then United States senator and a chief of the standiug deemed fit subjects for judicial animadver profession. As Van Buren and Burr attended tosjon." His rhetoric was rather agreeably florid when gether before the Court of Errors, they doubtless rehe declared the law establishing “jail liberties" to be called their meetings in Van Ness's office twenty a concession for humane purposes made by the inflex years before, when Burr, still a splendid though ible spirit which authorized imprisonment for debt. | clouded figure in American life, hoped, by Federalist He strongly intimated his sympathy to be with “the votes added to the Republican secession which he led, exertions of men of intelligence, reflection and philan to reach the governorship and recover his prestige; thropy to mitigate its rigor; of men who viewed it as those days in which the unknown but promising a practice fundamentally wrong, a practice which young countryman had interested a vice president and forces their fellow-creatures from society, from their enjoyed the latter's skillful and not always insincere friends, and their agonized families into the dreary flattery. The firm and orderly procedure of Van walls of a prison; which compels them to leare all Bureu's life was now well contrasted with the dis. those fascinating endearments to become an inmate credited and profligate ability of the returned wanwith vermin;" and all this, not for crime or frauds, derer. Against this earlier but long deposed, and " but for tbe misfortune of being poor, of being un against this later and regnant chief in the Republican able to satisfy the all-digesting stomach of some politics of New York, were ranged in these cases ravenous creditor." The practice was one “con David B. Ogden, the famous lawyer of the Federalist founding virtue and vice, and destroying the distinc ranks, Samuel A. Talcott and Samuel Jones. In Van tion between guilt and innocence which should un Buren's long, masterly and successful argument there ceasingly be cherished in every well-regulated govern was again an edge to the zeal with which he attacked ment." Democrats rejoiced over this passage when the opinion of Kent, the Federalist chancellor, who Vau Buren was a candidate for the presidency. Rich asked the Court of Errors to overrule its earlier decisard M. Johnson, then his associate upon the Demo ions, aud the chancellor's own decision as well, and cratic ticket, had successfully led an agitation for the defeat the intention of the elder Medcef Eden. abolition of such imprisonment upon judgments ren Great lawyers were then fond of illustrations from dered iu the Federal courts.
polite literature; they loved to set off their speeches In 1830, while secretary of state at Washington, he with quotations from the classics, and to give their is said to have appeared before the Federal Supreme style finish and ornament not practicable to the preCourt in the great litigation between Astor and Sail cise, prompt methods which their successors learn in ors' Snug Harbor, in which he had been counsel be the driving routine of modern American cities. Van low; but no record is preserved of his argument Buren did not however become a great orator at the there. His last well-known argument was before the bar. His admirer, Butler, upon returning to partnerCourt of Errors at Albany in Varick V. Jackson, a ship with him in 1820, wrote indeed to an intimate branch of the famous Medcef Eden litigation. This friend, Jesse Hoyt (destined afterward to bring grief long and highly techuical battle was lighted up by the and scandal upon both the partners), that if he were fame and competitions of the counsel. It arose upon Van Buren he would let politics alone," and become, the question whether a will of Eden which gave a as Van Buren might, the “ Erskine of the State." landed estate to his son Joseph, but if Joseph died But though his success, had he continued in the prowithout children, then to his surviving brother, Med- fession, would doubtless have been of the very first cef Eden the younger, created for Joseph the old law.order, his oratory would never have reached the warm yers' delight of au "estate tail." If it were an “estate and virile splendor of Erskine or the weighty magnifitail," then the law of 1782, which, in the general ten- | cence of Webster. Van Buren's work as a lawyer deucy of American legislation after the Revolution, | brought him however something besides wealth and was directed against the entailing of property, would the education and refinement of books, and somehave made the first brother, Joseph, the absolute thing which neither Erskine nor Webster gained. owner, and have defeated the later claim of Medcef. The profession afforded him an admirable discipline in For Joseph had failed while in possession of the prop- the conduct of affairs; and affairs, in the law as out of erty. His creditors, accepting the opinion of Alex. | it, are largely decided by human pature and its vary. ander Hamilton, then the head of the bar, insisted | ing peculiarities. The preparation of details; the that he had been the absolute owner, that the provis-keen and far-gighted arrangement of the best, because ion for his brother Medcef's accessiou to the property the most practicable, plan; the refusal to fire off amwas nugatory as an attempt to entail the estate; and munition for the popular applause to be roused by its upon this view the creditors sold the lands, which by noise and flame; the clear, steady bearing in mind of the rapid growth of the city soon became of large the end to be accomplished, rather than the prolonged value. Hamilton's opinion for years daunted the enjoyment or systematic working out of intermediate younger Medcef and his children from asserting the processes beyond a utilitarian necessity-all these eleright which it was morally plain his father had in ments Van Buren mastered in a signal degree, and tended for him. Aaron Burr, not less Hamiltou's ri- made invaluable in legal practice.