Page images

to the equitable relief demanded. Brewer v. Marshall, ABSTRACTS OF VARIOUS RECENT DE19 N. J. Eq. 537, is oited by the respondent as requir

CISIONS. ing a different construction. The general rules in regard to such covenants are not stated differently in

ATTORNEYS - MISCONDUCT- DISBARMENT -- OFFERthat case; but in the opinion of the court, it was not

ING MONEY FOR TESTIMONY - PROCURING PERSON TO one for the interference of the court of equity.

| STEAL PAPERS — EVIDENCE.-An attorney, believing a Among many other cases, Tulk v. Moxhay, supru, 18 I certain paper to be a forgery, hired an expert to excited; and the learned court say: "It will be found,

amine it. The expert expressed his doubt as to the upou examination, that these decisions proceed upon

forgery; and the attorney, supposing that the expert the principle of preventing a party having knowledge

believed the paper a forgery, and only expressed a of the just rights of another from defeating such

doubt to extort money, offered him a large sum of rights, and not upon the idea that the engagements

money to testify in regard to the forgery. Held, that enforced create easements, or are of a nature to run such conduct was subject to criticism, but not surfiwith the land. In some of the instances the language | cient ground for disbarment. The respondent was of the court is very clear on this point." And from a charged with procuring one to steal a paper, but the “review of the authorities," the court say “it is en

only evidence against him was the testimony of the tirely satisfied that a court of equity will sometimes

party who lost the paper that the person who stole it impose the burden of a covenant relating to lands on

said that respondent had hired him to steal it. Held, the alienee of such lands, on a principle altogether that such statement was not evidence, and the reaside from the existence of an easement or the ca

spondent could not be disbarred on the charge. Howpacity of such covenant to adhere to the title." The

ever much it may be regretted, we know that experts only questiou which the court regarded as possessed

are often employed and paid 'arge sums for their serof difficulty was whether the covenant then in contro vices, and practically for their testimony; for it often versy was embraced within the proper limits of this

requires labor as well as skill to examine and deterbranch of equitable jurisdiction. By a divided court,

mine the question upon which an opinion is to be an injunction was denied. The circumstances were

giveu, aud sometimes to prepare an effective exhibit quite unlike those before us, and the decision furn

of the facts for the court. The money paid was unishes no precedent for us to follow. All concur, ex derstood by both parties to be for such services, aud I cept Peckham, J., not voting, and Andrews and Earl, | do not believe that Barnes thought that the money JJ., dissenting, on the ground that the covenant did would cause the witness to change his opinion or his not run with the land. Oct. 28, 1887. Hodge v. Sloan. evidence as to the genuineness of the signature. The Opinion by Danforth, J.

respondent knew, or thought he did, that the sigua.

ture was a forgery, aud he seems never to have ESTOPPEL - BY DEED.-A grantor cannot, after con

doubted that Gumpel was of the same opinion, and veying land, estop his grantees and their successors

he regarded, as he well might, the occasional argufrom denying the validity of an incumbrance on the

ments of the witness on the other side as mere intiland, by a certificate that such incumbrance is valid

mations that he wanted some money. Under such and binding on the land. A clause in a deed that the

circumstances, no doubt, it would have been more in title conveyed shall be “subject to all liens of mort

accordance with exalted ideas of propriety for Barues gages" on the land is not an admission, on the part of

to have denounced the witness and dismissed him, a subsequent purchaser, that a mortgage which such

but I doubt whether many practitioners would have purcbaser had herself sigued as wife of a former

acted very differently from the course of the respond. owyer is valid aud binding on the land. Juue 5, 1888.

ent. Lawyers meet and are compelled to contend Purdy v. Coar. Opinion by Finch, J.

with all sorts of people. They have in their hands the MASTER AND SERVANT - NEGLIGENCE — ASSUMP

interests of their client, and they should not permit TION OF RISK.--Plaintiff, who had been for some time

him to lose the benefit of important testimony upon a 'longshoreman, while loading defendant's vessel was

any refined ideas of propriety. Frequently witnesses thrown into the water and injured by the fall of the

whose testimony is essential know the value of their platform between the vessel and the dock. Accord

position, and too often attempt to realize upon it. It ing to plaintiff's evidence, it is the anty of 'longshore

is a trying thing for au attorney to be placed in a situmen to attend to the fastenings of the platform,

ation where he must deal with such a witness; and which is left loose on the shore side, and to regulate

while an honorable attorney would be careful to make the fastenings to the rise and fall of the tide. The

no payments or promises which could affect the truth. platform was in good order, and no neglect was showu

fuluess of the evidence, all would try to retain the on the part of defendant. Held, that plaintiff could

wituess, however much he would be compelled to denot recover. June 5, 1888. Hudson v. Ocean S. S. Co.

spise him. I have considered the matter entirely from Opiniou by Gray, J.

the stand-point of the respondent; and while I think

his conduct, according to his own testimouy, may MISTAKE — REFORMATION OF CONTRACTS - WAIVER. justly be criticised, I do not think it sufficient ground -In an action upon a written contract, where defend. | for a disbarment. Cal. Sup. Ct., March 2, 1888. In re ants allege a mistake in reducing the same to writing, Barnes. Opinion by Temple, J. but do not pray judgment for a reformation of the contract, the defect in the answer is waived, if not AUCTION-AUCTIONEER BIDDING FOR PURCHASER. raised until after the trial. In such case, if the facts, If an auctioneer, without the seller's assent, makes as found by the court, show that defendants were en bids for a purchaser, his conduct is fraudulent, and titled to a reformation of the contract, the technical the sale is not enforceable by the purchaser. Whether error of decreeing a dismissal of the bill instead of a Lif due notice was given that the auctioneer would bid reformation of the contract is not cause for remaud- | for an intending purchaser, and the sale was in other ing the case, but the decree will be modified to con respects unimpeachable, the seller would be estopped form to the findings. Where it is sought to reform a from objecting afterward to the sale is not decided. written instrument on the ground of mistake in re An autioneer is the agent of the seller in making the ducing the same to writing, there having been po mis. sale. When however the property is struck off, he betake in the contract as agreed upon, it is not necessary comes also the agent of the purchaser to the extent of to allege that the mistake was mutual. June 5, 1888. binding both parties by his memorandum of sale. Up Born v. Schrenkeisen. Opinion by Ear), J.

to this point his duty is to the vendor. Bateman Auo,

[merged small][ocr errors][ocr errors][ocr errors]

*20, *126, note (x). It is a well settled rule that a trus I BANKS--CONVERSION OF SPECIAL DEPOSIT-INSOI-
tee or agent cannot buy the property of his principal, VENCY-PREFERENCE OF DEPOSITOR. — The plaintiff
because of the inconsistent relations that he would deposited certain bonds with a banker for safe-keep-
thus hold as purchaser and seller. Story Ag., & 211; | ing, which he wrongfully sold and applied to his own
Bateman Auc. *125; Michoud v. Girod, 5 How. 503 ; | use. The proceeds found their way into the hands of
2 Sugd. Vend. (14th Am. ed.) 687. These rules were his assignee for the benefit of creditors. Held, that
most carefully examined on principle and authority the plaintiff had a paramount right to be first paid out
by Chancellor Kent in Davone V. Fanning, 2 Johns. of the assets. This case is clearly ruled by the decis-
Ch. 252. In this case a sale by a trustee at public auc ions in McLeod v. Evans, 66 Wis. 401, and Francis v.
tion, bona fide and for a fair price, to a third person as Evans, 33 N. W. Rep. 93, unless those cases are to be
agent for the trustee's wife, was set aside, although overruled. A majority of the court are not disposed
the wife was a cestui que trust, and had an interest in to disturb them, or modify the doctrine laid down in
the estate sold. Among the cases cited was Ex parte them. It seems inequitable that the general directors
Bennett, 10 Ves. Jr. 381, where a solicitor to a commis should profit by, or have the benefit of the fraud
Bion in bankruptcy made bids for a third party. The committed by the assignor in respect to these bonds;
sale was set aside upon the ground that if a trustee or for Hodges never owned them; they were never a part
agent cannot bid for himself, upon the same principle of his estate by right, but by a gross violatiou of trust
he cannot bid for another. Lord Eldon held, that amounting to a crime, he mixed this trust property
although the temptation in the latter case is weaker, with his own, and the assignee seeks to hold it for the
"that distinction is too thin to form a safe rule of benefit of all the creditors. The plaintiff has a para-
justice." In Twining v. Morrice, 2 Bro. C. C. 326, spe- mount right to be first paid out of the assets. This is
cific performance was denied where the seller's agent the doctrine of the cases decided by the court, which we
at an auction sale bid for the plaintiff. In Veazie v. see not sufficient reason for changing. It was not my
Williams, 8 How. 134-152, Judge Woodbury expresses purpose at this time to enter upon a discussion of the
the opinion that to allow an auctioneer to bid for principles upon which these cases rest. Enough is
another would tend to weaken his fidelity in the exe said in the opinions to indicate our views upon that
cution of his duties to the owner. In Brock v. Rice, subject. I shall make but one further remark. Among
27 Gratt. 812, the following rule is laid down: “No the authorities cited to sustain the decision in the
person employed or concerned in selling at a judicial McLeod case was People v. Bank, 96 N. Y. 32, which
sale is permitted to become a purchaser, or even to act as reported would seem to be in point. In that case
as agent of a purchaser. It is impossible with good the court says that the object of Sartwell, Hough &
faith to combine the inconsistent capacities of seller Ford, in drawing and depositing their checks with the
and buyer, crier and bidder, in one and the same trans- / bauk, was to provide a fund for the payment of the
action. If the commissioner or auctioneer faithfully specific notes mentioned, and the engagement of the
discharges his duties, he will of course honestly obtain bauk was thus to apply the fund. “Thus a trust was
the best price he can for the property. On the other created, the violation of which constituted a fraud, by
hand, if he undertakes to become the purchaser for which the bank could not profit, and to the benefit of
himself or for another, his interest and his duty alike which the receiver is not entitled. * * * The
prompt him to obtain the property on the most ad. checks were impressed with a trust, and no change of
vantageous terms. There is an irreconcilable conflict them into any other shape could divest it so as to give
between the two positions. And so the courts have the bank or its receiver any different, or more valid
always held.” In respect to the duty of the auctioneer claim in respect to them than the bank had before
there is no distinction between a judicial and an ordi their conversion." The decision of the same court in
nary auction sale. In this State an auctioneer is an Cavin v. Gleason, 105 N. Y. 256, would seem to be in
officer elected especially for the purpose of securing direct conflict with that iv the Bauk case. The court
fair dealing at such sales. The only case that has however say in Cavin v. Gleason that the case of Peo-
come to our attention which holds that an auctioneer ple v. Bank seems to have been misunderstood; that
may bid for another is Scott v. Mann, 36 Tex. 157. The it was not claimed in the latter case that the proceeds
report of this case is not clear upon this point, and it of the checks of Sartwell & Co., the petitioners, had not
is quite possible that the auctioneer took only one bid gone into the general funds of the bank, or that they
from the purchaser, and made that bid at the sale, | had not passed in some form to the receiver. In fact
which would be very different from bidding gradatim what the case does show upon that point is that these
in his behalf. Taking the case however as it stands, checks were marked paid, and the amounts were de-
we think it is overborne both by reason and authority. ducted from the deposits of the drawers in the bank.
But it may be urged that as no one increased the bid Bnt the notes themselves, which the checks were in-
of the purchaser no harm was done to the defendant. tended to pay, were not owned by the bank, but bad
This is not a sufficient answer. The conduct of an been previously sold, and the avails used in its busi-
auction sale is so completely in the hands of an auc ness, as we iufer. These are the facts as we under-
tioneer that it is an easy thing for him to strike off stand them. We shall not attempt to reconcile these
property according to his interest, even though by cases in New York. It is sufficient to say that a ma-
further urging other bids might be made. It is not jority of this court adhere to the decisions which we
enough to say to the seller, “You cannot prove that have made, and which clearly dispose of every point
I could get more.” There must be no room for temp relied on in the case at bar for a reversal of the judg.
tation and the hazard of abuse. Upon this ground the ment of the court below. Wis. Sup. Ct., Feb. 28, 1888.
sales for a fair price have been set aside in some of the Bowers v. Evans. Opinion per Curiam. Taylor and
foregoing cases. See also Sugd. Vend. (14 Am. ed.) | Cassoday, JJ., dissenting.
689, § 5, and note 8. The burden is on the complain- | CRIMINAL LAW – CLAIM OF RIGHT — PUBLICITY OF
ant, who seeks to compel a performance to show that TAKING.– Where one went to a milk wagon, of which
he fairly bought the property at a fair sale. By the he had formerly been the driver, while it was stand-
uulawful conduct of the agent whom he selected, ing in a public street, took from it a bell, rang it
whose duty he should have knowii was to the defend loudly for some time, and upon the non-appearance
ant, he did not fairly purchase at a fair sale, and con. | of the driver, left word with a by-stander that he had
sequently he is not entitled to the relief he asks. R. I. taken his bell, and where it appeared that he had
Sup. Ct., Feb. 18, 1888. Randall v. Luutenberger. / bought the bell pending his employment as driver,
Opinion by Stiness, J.

| and upon his discharge had left it, and his successor

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

bad used it, a verdict fuding him guilty of larceny “bonnet” in this country? What was its meaning on was not sustained by the evidence, although there March 3, 1883? The lexicons are of course the first was testimony that the former employer of the de- | authority to be consulted upon such a question. But feudaut bad accounted to him for the value of the bell I do not understand, under the decisions, that they in a settlement had between them, but which the de are the sole fountain of authority, and that the court fendant denied. The authorities are abundant that, | in deciding the question, is restricted to the precise when one takes property under a fair claim of right, it is definition used in any particular dictionary. Two pot larceny; and the publicity of the taking is very dictionaries are recognized as the standards for this powerful evidence to establish the bona fides of the country-Webster and Worcester. The edition of claim of right. There could hardly have been greater Worcester which has been put in evidence gives as the publioity, because this was done in an open street, first definition, “a cap or hat worn by men," with a pear the heart of the city, as we would infer from the quotation from Shakespeare in illustration, coupled evidence, and the ringing of the bell was loud enough | however with a sign indicating that it was obsolete at to be beard in adjacent streets; so the witnesses testi the time that edition of the dictionary was published, fied. It seems he made a sort of bell-ringing proclama which was in the year 1860. Webster's dictionary, tion that he was about to resume his ancient pos edition of 1865, does not contain any express statesession, and seemed to desire it to be known and ob ment that the word has become obsolete when used in served of all men; and that is a very strong circum- that sense; but the phraseology of the first definition stance in favor of the man's innocence. In addition which it gives is such as not necessarily to be in conto this be proved a good character for honesty and in flict with the statement in Worcester. It is: “A cap tegrity. He appears from this record to be a man of or covering for the head, in common use before theinexcellent standing for a colored man, and it is very troduction of hats, and still used by the Scotcb." probable that he is innocent of the crime of larceny; Whether or not that particular paragraph means that and we reverse the judgment and direct that the case the cap or covering was in common use, or that the be tried again. As to claim of right see 1 Hale P. C. | name of bonnet in that sense was in common use, is 509; 2 Russ. Crimes, 163; 2 Archb. Crim. Pl. & Pr. | not entirely clear-grammatically clear-upon the face 1183; 1 Whart. Crim. Law, $ 884: 1 Bish. Crim. Law, 1 of the paragraph. If there is no conflict between the $ 884; id., $ 297 ; id., $ 851. As to open taking see 1 | two authorities, then the statement in Worcester may Hale P. C. 509; 2 Russ. Crimes, 158; 2 East P. C. 661; be taken as conclusive. If however there is a con2 Bish. Crim. Law, 842, note 1: 2 Archb. Crim. Pl. & | flict between them, then the court must determine Pr. 1183, note 1. Ga. Sup. Ct.. Jan. 30, 1888. Causey | this question from its awn knowledge as to the use of v. State. Opinion by Bleckley, C. J.

the word. Three witnesses, and I do not refer to their CUSTOMS DUTIES-CLASSIFICATION-WOOL COVER

testimony as enlightening the court upou the meaning INGS FOR THE HEAD—" BONNETS.''- Articles made of

of the word, wor do I predicate my ruling upon their wool, knit ou frames, imported from Scotland, and

testimony, but I refer to it in illustration merelyused for a covering for the head, are properly assessed

tbree witnesses gave suggestive testimony upon this

point. Mr. Duulap sells a great many of these capsfor duty under the Tariff Act, par. 363, which reads: "Flannels, blankets, hats of wool, kuit goods, and all

imports and sells them--and buys them also, I pregoods made on knitting frames," etc., and not under

sume, from manufacturers here. He sells them on paragraph 400, which provides for duty on “bonnets,

the call of his customers as caps, except that Scotchhats and hoods for men, women and children, com

men have called and asked for a bonnet. Mr. Russell,

himself a Scotchman, kuows what & bonuet is : but posed of chip, grass, palm leaf," etc., as the word "bonnet" in the statute is not sufficiently broad, vor

though he has been in business here long, and sold such peculiar, technical trade-meaning coupled with

many of them, he testifies that no one here has asked it as to cover these goods. The first thing to be deter

for these goods, asking for them by the name of bone mined is the meaning of the word “bonnet." What

net. The other, a most important witness on that is its ordinary and received acceptation in the English

point, is the plaintiff himself. No one arriving in a language as used in this country, where Congress leg

strange city anywhere in this country, and wishing to iblates? What is its popular and received import?

purchase a Scotch cap, who should look over a busiSuch, under the decisions. is the question which is to

ness directory to find a shop at wbich to buy it, would be answered. Now it needed not a reference to the

go to a person who advertised himself as a dealer in

bonnets. The plaintiff seems to have recoguized that quotations which were read here on this trial to sat

fact fully, for upon bis sign he described himself as au isfy us all that heretofore, at the time when the Bible

importer of Scotch caps. U.S. Cir. Ct., S. Dist. N. Y., was translated, at the time when Shakespeare wrote his

Jan. 12, 1888. Toplitz v. Hedden. Opinion by Laplays, at the time that Walter Scott wrote his novels, and to-day even, in norels, narratives or poems de

combe, J. scriptive of Scotch life--the word “bonnet" was and

INFANCY – AVOIDANCE OF CONTRACT -- RECOVERY is used as meaning and including a cover for the head. | OF CONSIDERATION.-An infant may, before or on arIs it in use in that sense however now-by now, I mean riving at age, disaffirm a purchase of personalty, other March 3, 1888-in this country? Several lexicons and

than necessaries, made by him during his minority, of clopædias published in England aud in Scotland | and recover back the consideration paid, without rehave been referred to, but I suppose there is no better storing the property sold and delivered him, where it authority upon the English language to-day, so far as I

has been taken from him, whether rightfully or not, it goes-for the first volume oviy is out--than the Eng

upon an execution against a third person. In such lish dictionary published under the auspices of the case he is not required, as a condition of his right to Philological Society, and edited by Mr. Murray. That | recover, to take any steps to recover tbe property dictionary, under the definition of “bonnet," de-| taken from him. It is sufficieut in such case that the scribes it as a “head dress of men and boys, usually property ceases to be in his possession or subject to soft, and distinguished from the bat by want of a his control. The true doctrine now seems to be that Drim; in England superseded in common use appar- | the contract of an infant is in no case absolutely void. ently before 1700 by cap. but retaiaed in Scotland: | 1 Pars. Cont. 295, 348; Pol. Cout. 36; Harner V. Dinhence sometimes treated as equivalent to a Scotoh ple, 31 Ohio St. 72; Williams V. Moor, 11 Mees. & W. cap.” That seems to be the Englisb authority on the 256. An infant may, as a general rule, disaffirm any use of the term. But it is not its use in England which contract into which he has entered; but until he does concerns us here. What is the meaning of the word so, the contract may be said to subsist, capable of be.

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

ing made absolute by affirmance, or void by disaffirm- the right of the plaintiff to recover; but a careful ex.
ance, on his arriving at age; in other words, infancy amination will disclose that such is not the case. Ohio
confers a privilege rather than imposes a disability. Sup. Ct., Jan. 10, 1888. Lemon v. Beeman. Opinion
Hence the disaffirmance of a contract by an infant, in by Miushall, J.
the exercise of a right similar to that of rescission in

- NEGLIGENCE — PRESUMPTION. - Between the the case of an adult, the ground being minority, inde

ages of seren and fourteen a child is prima facie pendent of questions of fraud or mistake. But in all

incapable of being guilty of contributory negligence: else the general doctrine of rescission is departed

hence, in an action to recover damages for injury from no further than is necessary to preserve the

done to such a child, a demurer to the complaint, on grounds upon which the priviiege is allowed; and is

the ground that it does not allege that the child was governed by the maxim that infancy is a shield and

free from negligence, is bad. Ala. Sup. Ct., Feb. 2, not a sword. He is not in all cases, as is an adult, re

1888. Pratt Coal & Iron Co. v. Brawley. Opinion by quired to restore the opposite party to his former con

Clopton, J. dition; for it he has lost or squandered the property received by him in the transaction that he rescinds, INSURANCE-SOCIETIES-STATUS OF.-A corporation and so is unable to restore it, he may still disaffirm organized to provide for its members during life, and the contract and recover back the consideration paid their families after death, provided in its constituby him without making restitution; for if it were tion and by-laws for the payment to the member at otherwise, his privilege would be of little avail as | death of a certain sum in consideration of the payshield against the inexperience and improvidence of ment of a membership fee and certain future assessyout. But when the property rescinded by him from ments. Every candidate was obliged to be examined the adult is in his possession, or under his control, to by a physician and found to be in good health before permit him to rescind, without returning it or offer. becoming a member. The officers and agents of the ing to do so, would be to permit him to use his privi. corporation received good salaries. Held, that the lege as a sword, rather than as a shield. This view is organization was not a corporation for benevolent pursupported, not only by reason, but by the greater poses, but was an insurance company, and subject to weight of authority. It was recognized and applied | all the provisions relating to such companies. This by this court in Cresinger v. Welch, 15 Ohio, 156, deci. contract has all the features of a life insurance policy. ded in 1846. The following is the language used by | It is a contract by which one party, for a consideraMr, Tyler ou the subject: "If the contract has been tion, promises to make a eertain payment of money executed by the adult, and the infant has the property | upon the death of the other; and it is well settled or consideration received at the time he attains full that whatever may be the terms of payment of the age, and he then repudiates the transaction, he must consideration by the assured, or the mode of estimatreturn such property or consideration or its equiva- ing or securing payment of the iusurance money, it is lent to the adult party. If however the infant has still a contract of insurance, no matter by what name wasted or squandered the property or consideration, it may be called. Com. v. Wetherbee, 105 Mass. 149; received during infancy, and on coming of age repudi. State v. Benevolent Ass'n, 18 Neb. 281. It is in effect ates the transaction, the adult party is remediless." the ordinary contract made by insurance companies He then adds that “there are expressions of judges with the assured, differing from it in no important reand text writers against the latter proposition, but," spect. The terms of payment are somewhat different, he says, "the weight of authority is in harmony with the amount being greater or less according as the it, and is decidedly in accord with the general princi- member lives long or dies early; still it is a payment ples of law for the protection of infants." Tyler Iul. | to be made at his death. The assured cannot be (2d ed.) 80, and cases cited by the author. See also the forced by suit to pay future premiums; but he loses case of Price v. Furman, 27 Vt. 268, and the notes his membership if he defaults in this respect. It is a thereto of Mr. Ewell, in his Leading Cases on Infancy common provision in insurance policies that if the as& Coverture, 119. After an exhaustive review of the sured fails to perform some of the conditions of this cases, this author says: “The true doctrine, and the contract, that his policy may be cancelled, and the one supported by the weight of authority (at least in premiums paid shall in that event become forfeited to the United States), would seem tu be that when an in the company. The provision that membership may be faut disaffirms his executed contract, after arriving at | forfeited for non-payment of assessments is in effect age, and seeks a recovery of the consideration moving the same thing; for the assessments serve the purposes from him, and whero the specific consideration re- of premiums in an ordinary life policy. The examinaceived by him remains in his hands, in specie at the tiou too which precedes admission into membership is time of disaffirmance, and is capable of return, it the same as that which occurs before the issuance of must be returned by him; but if he has during in- I a policy, and is intended to secure the society against fancy wasted, sold or otherwise disposed of, or ceased | fraud or imposition; to prevent an unsound person to possess the consideration, and bas none of it iu his from becoming insured, and to reduce its risks of loss hands in kind on arriving at majority, he is not liable and increase its chances of profit. It matters not that therefor, and may disaffirm without tendering or ac the member was entitled to benefits in case of sickcounting for such consideration." This statement of 1 ness. Insurance can be effected upon the health as the law, supported, as it is, not only by the greater | well as the life of an individual. These benefits too weight of authority, but also of reason, meets with are incidental to the main object of the institution, our full approval. There is however much conflict in and the certificates issued by it are noue the less polithe decisions of the different States; greater perhaps cies of insurance, though the insured derive sums of than upon any other question connected with the law | money from the contract other than those for which of infancy (Metc. Cont. 76); but we deem it unneces he has specially bargained. We are of opinion theresary to attempt to review or discuss them, for the fore that appellants constituted an insurance comvery good reason that it has been done with thorough- pany within the spirit and true meaning of tha: term, ness and ability by the authors just referred to. See | and not an association conducted in the interest of also the notes of Mr. Ewell to the recent case of benevolence, as contemplated by title 20 of our ReAdams v. Beall, decided by the Maryland Court of vised Statutes. This question has been frequently beAppeals, 26 Am, Law Reg. 710. We have been cited fore the courts of other States, and so far as we can by counsel for the defendant below to a number of ascertain has been universally decided in accordance the previous decisions of this court, supposed to affect | with the opinion above expressed. In Bolton v. Bol

[ocr errors][ocr errors]

ton, 73 Me. 299, the subject underwent thorough iu | to its tenor, if the acceptance be absolute. It is in vestigatiou, and an institution, with purposes similar substance an agreement to pay the sum of money to the present, was held to be a mutual life insurance specified in the bill as therein directed. I Chit. Bills, company. In State v. Critchett, 32 N. W. Rep. 787, the 281; Story Bills, $ 238; 1 Pars. Notes, 281. No parSupreme Court of Minnesota held a company formed ticular words, or form of words, or manner are necesby married men for the purpose of endowing the wife sary to a valid acceptance, but it sbould generally be of each member upon marriage with a sum of money in writing, because this is orderly, promotes the conequal to the then number of members, not to be a be venience of business transactions, renders them more nevolent association. The members paid quid pro quo, certain, and facilitates the proof of acceptance. Writand did not receive their money as an act of benevo ing however is not essential in the absence of statulence on the part of their fellow members. In State tory regulation requiring it. The acceptance may be v. Benevolent Ass'u, supra, A society with a constitu. verbal or in writing. Either method is valid, but it tion like the present, was held an insurance company must appear by express words or reasonable implicawithin the meaning of a statute similar to our own. tion. The intention of the acceptor to pay the bill The benefits received are not gratuitous. They are due must clearly appear, in whatever manner evinced. to the member on account of the money he pays into the Usually the donee makes his acceptance by writing society. It takes the risk of his continued existence his name across the face of the bill, and just over it and good health. Jf it be benevolent to pay one money the word "Accepted : " but it may be made by any under such circumstances, then every mutual life in word or phraseology implying substantially the same gurance company is acting in a benevoleut manner thiug. Any words used by the drawee to the drawer toward the family of an insured member when it pays or holder, or the agent of either, which by reasonable the policy it had issued thereon for a moneyed con intendment signify that he honors (the bill (will pay sideration. It matters not what name the association it) will amount to an acceptance. And though he may may assume. The law looks to the real objects of the not, on presentment of the bill, accept at once, if he body, and not to the name indicative of benevolence afterward does so, this will be sufficient to bind him, which it may bave assumed. These views will be found although the holder would have the right to insist supported by the following authorities, in addition to upon prompt acceptance according to the terms of the those already cited : May Ins., $ 550; State v. Citizens' bill. N. C. Sup. Ct., Feb. 21, 1888.' Short v. Blount. Ass'n, 6 Mo. App. 163; State v. Merchants', etc., Opinion by Merrimon, J. Ass'n, 72 Mo. 146; People v. Wilson), 46 N. Y. 477; NEW TRIAL -- MISCONDUCT OF JURY - DRINKING State v. Life Ass'n, 38 Ohio St. 281. Iu some of the WITH PARTY.-During the progress of the trial of the States these societies have been exempted by special cause in the District Court, while the court had ad#tatute from the requirements exacted of other insur journed for dinner, the defendant took two certain ance companies. In Illinois a special statute which members of the jury in said cause, who were engaged in provides that “associations intended to benefit wid- | trying the same, into a public liquor saloon, and treated ows, orphans, heirs and devisees of deceased members, them to intoxicating liquor, which was then and there and when no annual dues are required, and where the drunk by said jurors. Held, that the verdict be set members receive no money or profit or otherwise, shall | aside and a new trial granted. One of the earliest not be deemed insurance companies." Heuce it is of | American cases involving a question of this character course held in that State that a society with the fea. is that of People v. Douglass, 4 Cow. 26, which was tures prescribed, and lacking in those excepted by the | tried in 1825. The facts out of which the question statute, is not an insurance company. It is admitted arose iu that case were as follows: "The trial comthat without such a statute they would be included in menced on the 11th of January; at about 2 P. M. the the general sense of that term. League v. People, 90 jury had liberty to retire from the box, under the Ill. 166. In Ohio a statute declares that such associa charge of two sworn constables, and the direction of tions shall in no mavner be subject to the laws of the the court to keep together and return speedily. This State relating to life insurance companies. Hence the was before the trial was coucluded. The jury re. decisions of that State are inapplicable to the present tired to consider their verdict about 11 P. M., and recase. State v. Protection Ass'u, 26 Ohio St. 19. The turned a verdict of guilty about 4 the next morning. decision in Com. v. Aid Ass'n, 94 Peun. St. 481, is ex After the conviction a motion was made * * * for pressly founded upon a statute of similar character. a new trial, on the ground that two of the jurors, Aud we think this will be found to hold true as to all while out under the care of the constables, separated cases, which hold such societies exempt from statu from their fellows, ate, drank whisky, put cakes in tory provisions as to other insurance companies. See their pockets, and conversed with by-standers on the Supreme Council v. Fairman, 62 How. Pr. 386; State subject of the trial.” A new trial being refused, the v. Bankers' Ass'n, 23 Kaus. 499. Tex. Sup. Ct., Jan. case was brought to the Court of Errorg. In deliver31, 1888. Farmer v. State. Opinion by Willie, C. J. ing the opinion of the court, Woodworth, J., said:

"Clearly we should disregard the fact of eating as NEGOTIABLE INSTRUMENTS — ACCEPTANCE - WHAT forming any ground for setting aside the verdict; for CONSTITUTES.-The drawee of an order, on present though this might be a contempt of court, being withment and demand, after taking time to consider, told out their leave, yet an opportunity to take reasonable the payee, “ I think there will be money enough to refreshments would always be granted at a proper seapay you, and it will be all right, and I will pay it." son; and the circumstance of their being obtained On another occasion the payee's ageut asked the somewhat irregularly could not prejudice the prisoner. drawee about the order, and he said he “would not But here the doubt is whether there was not further pay it that afternoon; but tell Short (the payee) it is abuse in drinking spirituous liquors. This should not all right, and I will pay it;" and the agent so in be tolerated in any shape in the jury during the proformed payee. Held, that these words, though not in gress of the trial; and we have uniformly held that it writing, in absence of a statute requiring written ac

vitiated the verdict in a civil cause, even where the ceptances, constituted a valid acceptance. By the ac

liquor was given to the jury by consent. It will not ceptance of a bill of exchange is meant the act or

I do to weigh and examine the quantity which may declaration by which the drawee therein named

have been taken by the jury, nor the effect produced." evinceg.-makes iranifest-hig assent and agreement

etc. A new trial was granted. The case of Brant v. to comply with, and be bound by the request and

Fowler, Cow. 502, was a civil case before the same order contained in the bill directed to him, according court two years later. Ou the trial, after the judge

« PreviousContinue »