but good risks will be accepted under any circumstances."

Why no medical examination is required or was had in case of people, over 60 years of age is easy to understand in view of the scheme as carried out.

Yet the by-laws provide, that applicants must be of "sound mind and body."

The sincerity of this rule may well be doubted when a medical examination is dispensed with. Memberships were issued to persons between 20 and 60 years of age inclusive 259; from 60 to 70, 1128; from 71 to 80, 3091; from 81. to 86, 1074; thus only 259 out of 5552 members accepted, were subjected to any medical examination.

The applications on file show, that some if not many of them were at the time and had been for years, not of sound body, and some died shortly after they wer insured for the benefit of others than heirs or members of the family.

As a fact the agents of the company, the medical examiners of applications, the trustees and the beneficaries, were each and all, under the plan adopted, directly interested in obtaining the worst risks, possible to secure. An old and decrepit person, "with one foot in the grave" and the other soon to follow, was a much more profitable member than a sound one.

In such a case, at least eighty per cent. of the admission fee, went to the agent who could more readily earn it, when no examination was required, and the balance went to the "expense fund." The sure prospect of an early death, stimulated the affectionate regard of "sons-in-law" and others, not members of the family or heirs, to advance this fee and assume the risk of paying death assessments that might happen before the subject of their insurance should die, when they would receive in the shape of an assessment, their reward for having selected the most dangerous risk. The more risks of this kind, the more assessments, out of which the trustees deducted from 20 to 30 per cent. to pay themselves large salaries, and additional salaries. This is in violation of all sound principles of life insurance, the two material factors of which are, the rates of mortality of its risks and the expenses of management. It is essential to the success of a life insurance and to the value of insurance to the policy holder, that these factors be reduced to the minimum by care in selecting risks, and by economy of management, but in such a company as this, the nearer the grave the better the risk. Those having a reasonable prospect of an early demise alone are wanted. As is said in a recent Report of the Commissioner of Insurance of Pennsylvania: "This is worse than lotteries, faro tables, and other forms of gambling denounced as immoral, and punished by fine and imprisonment. It is gambling in human life and furnishes strong incentives to worse crime. It is using the name of life insurance as a convenient cloak for lotteries, in which greedy gamblers cheat one another, with stakes upon the lives of venerable paupers."

This is especially true in the co-operative or mutual assessment plan, where there is no reserve or surplus fund, and where the assessments to pay benefits are collected directly from the members, who generally do not understand the mysteries of life insurance management.

These associations doubtless had their origin in the friendly and benevolent organizations and fraternities claiming like affiliation and purpose. There are other organizations having for their object the mutual aid benefit and relief of their members, or their families or heirs, when honestly and economically administered as a sacred trust, and not with a view to profit, are worthy the protection of law.

Beneficence and charity are justly claimed as cardinal graces, and should be fostered and encouraged, but the protection of the people from fraud and imposture, acting under the name of these virtues, should meet with special condemnation.

Counsel for the corporation make an appeal to the court, in behalf, it is said, of the 4295 members, to spare the corporate life of the associa tion, and simply oust it of certain franchises which it has abused. In support of this it is said that these members have paid in their money, all of which they will lose, if judgment of ouster, as prayed for, is entered. This assumes, among other things, that there is no individual liability. of the trustees for their unauthorized acts. How this is, we have not now to determine.

This is not the case of exceptional excess of corporate power. The whole plan of operations. and their practical exemplifications, manifest a carefully formed scheme to make money for the trustees. It is a speculative insurance company in a most objectionable form. To prolong its existence, and thus enable the trustees to continue in such business, would be a failure of duty on the part of the court.

Judgment of ouster.

OKEY, C. J., took no part in the decision of this case.

The State ex rel., Attorney General,

V.

The Middletown Mutual Aid & Life Ass'n.
Quo warranto.

This case presents the same questions as that of The State, ex rel., v. The Standard Life Association, just decided. The relation charges the same acts of misuser, exccpt, perhaps, more spe

cifically. The truth established that the corporation is formed on the same plan, and is doing the same kind of business. The only difference that is worthy of note is, that the trustees called the profits realized from death assessments and regularly distributed to themselves by that name, and did not attempt to disguise the same, under the name of "salaries," or "additional salaries."

Judgment of ouster.

its officers in payment of salary, which the payee endorsed to the defendant in error, the Meader Furniture Company. Prior to the judgment of ouster, the Meader Furniture Company recovered judgment on the note against the maker in its corporate name of the Southwestern Transportation and Wharf Boat Company. The assets of the company proving insufficient to satisfy the judgment, the present action was instituted by the judgment creditor, in the Superior Court,

CORPORATION-STOCKHOLDERS-PAYMENTS OF STOCK SUBSCRIPTIONS.

SUPREME COURT OF OHIO.

CHARLES W. ROWLAND

v.

THE MEADER FURNITURE COMPANY.

June 13, 1882.

1. Whero a corporation de facto, in a proceeding in quo warranto, has been ousted from the franchise of being a corporation, such ouster is no defense to a suit by a creditor against stockholders, to enforce payment of their stock subscriptions. Gaff v. Flesher, decided by the Commission, (33 Ohio S. 115. 453), approved and followed. 2. The act of Feb. 27, 1846, "regulating suits by and against companies and partners," (S. & C. 1138), applies only to unincorporated companies. Neither corporations de jure nor de facto are within its provisions; and an action cannot be maintained under the act, to charge the stockholders with the payment of a judginent against the corporation.

3. Corporations de facto and de jure stand on the same footing as respects their liability to creditors; and the liability of the stockholders of the former, whether arising by statute or on stock-subscription, may be enforced for the benefit of creditors, the same as the liability of the latter.

Error to the Superior Court of Cincinnati. The facts are stated in the opinion. Hoadly, Johnson & Colston, and Storer & Harrison for plaintiff in error.

iffs in error, who were stockholders in the company, to charge them as partners, with the payment of the balance due on the judgment.

The action was brought under the Act of Feb. 27, 1846, "regulating suits by and against companies and partners." S. & C., 1138. The first section is as follows: "That any company or association of persons for the purpose of carrying on any trade or business, or for the purpose of holding any species of property within the State of Ohio, and not incorporated as such, may suc or be sued in any of the courts of this State, by usual or ordinary name as such company, partnership or association may have assumed to itself, or be known by; and it shall not be necessary in such case to set forth in the process and pleadings, or to prove at the trial the name, of the persons comprising such company."

The fourth section provides: "That the plaintiff in any judgment so recovered against a company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a petition against the several members thereof, setting forth his judgment and the insufficiency of the partnership property to satisfy the same; and to have a decree for the debt, and an award of execution against all such persons, or any of them as may appear to have been members of such company, association or firm."

This statute applys only to unincorporated com

ners; in re Mendenhall, 9 Nat'l Bank Reg., 497; Medill v. Collier, 16 Ohio St., 599; Fay v. Noble, 7 Cush., 188; Bigelow on Corp., 194; Trowbridge v. Scudder, 11 Cush., 83; Blanchard v. Kaull, 44 Cal., 440. And the action was improperly brought under Section 632 S. & C., 1139.

are within its provisions. That the Southwestern Transportation and Wharf Boat Company was, prior to the judgment of ouster, a corporation de facto was held by the Commission in Gaff v. Flesher, 33 Ohio S., 115,453.

The facts in relation to the organization of the company, and of the proceedings in quo warranto whereby it was ousted from being a corpo

ners, and cited Ridenour v. Mays, 29 Ohio St 138; Wells v. Gates, 18 Barb., 554; Keasley v. Codd, 2 Carr & Payne, 409; Fuller v. Rowe, 57 N. Y., 23; Cutler v. Thomas, 25 Vt. 73.

WHITE, J.

The Southwestern Transportation and Wharf Boat Company was organized in May, 1871, and engaged in business as a corporation under the Act of May 6, 1869. 66 O. L. 127.

On December 11, 1873, in a proceeding in quo warranto in this court, the company was ousted from the franchise of being a corporation.

On March 12, 1873, the company in its corporate name executed its promissory note to one of

case, hence they need not here be re-stated. It is sufficient to say that we are satisfied with the judgment rendered in that case.

The rights of the creditors of the company, and the liabilities of the stockholders in respect to the payment of the creditors, were not affected by the judgment of ouster. These rights and liabilities would have been the same if the proceedings in quo warranto had not been instituted. The fact that their enforcement is sought after, instead of before the judgment of ouster, does not affect their adjudication on the merits."

Corporations de facto and de jure stand on the same footing, as respects their liability to credit

ors; and the liability of the stock holders of the former, whether arising by statute or on stock subscriptions may be enforced for the benefit of creditors, the same as the liability of the stockholders of the latter. McCarthy v. Lavasche, 89 Ill., 270.

Judgment reversed and petition dismissed. [This case will appear in 38 O. S.]

CONTRACTS-DEBT RELEASED SUBSEQUENT PAYMENT.

COURT OF APPEALS OF MARYLAND.

INGERSOLL V. MARTIN.

October Term, 1881.

A promise to pay a debt, made after a voluntary release under seal has been executed and delivered by the creditor, is void; it is not supported by a sufficient legal consideration, the debt having been released.

Action on two promissory notes made by appellant to the order of appellee. The pleas were non-assumpsit, payment and release. It appears that appellant was in January, 1880, indebted to appellec in 8840. He paid $336 on condition that he should be released from the whole sum, and a release under seal was accordingly given him. At the same time he executed to appellee a note for $255 44; the notes in suit were renewals of the note given.

ALVEY, J.

As between the immediate parties to a negotiable promissory note, as in this case, while the note itself is prima facie evidence of the consideration, the question of consideration is always open; and it is competent to the defendant to show, by parol, that there was no sufficient consideration, or that the consideration had failed, or that the paper had been given for accommodation merely. This is a settled principle in the law of evidence in relation to negotiable instruments. 1 Parsons on N. & B., 176-194. This being clear, the next general principle involved. is that the payment of a smaller sum in satisfaction of a larger is not a good discharge of a debt. If, therefore, a debtor, by paying part of his admitted debt, obtains from his creditor an agreement to discharge the re idue, such an ageement is nudum pactum, and inoperative, for the simple reason that the debtor is under a legal obligation to pay the whole debt. This proposition has often been decided, both by the courts of England and of this State. Fitch v. Sutton, 5 East 232, approved and followed in Geiser v. Kershner, 4 G. & J., 305. And to these many other cases might be added. But a release under seal imports considertion, and such a release of an existing debt is a sufficient discharge without anything more. Such has been the law from an early time. Co. Litt. 212 b. v. Gott, 44 Md., 341, 347. The question then is, whether, notwithstanding the release under seal, the former debt could constitute a sufficient legal consideration for the promise in the notes sued on in this case.

It may be conceded that there was a moral obligation to pay the debt in full, notwithstanding the technical release; and yet a mere moral obligation simply would not be a sufficient legal foundation for the promise. It was said by Lord Mansfield, in Hawkes v. Saunders, Cowp. 289, that "where a man is under a legal or equitable obligation to pay, the law implies a promise, though none was ever actually made. A fortiori, a legal or equitable duty is a sufficient consideration for an actual promise. Where a man is under a moral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration." This general statement of the principle stood for some time as an authoritative enunciation of the law; but more recent decisions have considerably qualified the latter part of the statement. It is now understood, both in England and in this State, as being so restricted as not to apply or extend to that class of cases which arise out of the moral duties or affections alone. There must be something more to support an express promise to pay. Ellicott v. Turner, 4 Md., 476, 492; Eastwood v. Kenyon, 11 Ad. & E., 438. But while such limitation upon the general principle has been established, it is perfectly well settled that where there is a pre-existing obligation to pay, either legal or equitable, which cannot be enforced, and the party promises, notwithstanding he may be exem from all liability by operation of law, the former liability, in connection with the honesty and rectitude of the thing forms sufficient consideration to support the promise. Ellicott v. Turner, supra. miliar illustrations of this principle and its apAnd as faplication, the cases of promises to pay debts barred by the statute of limitations and those to revive debts discharged by the operation of bankrupt or insolvent laws may be cited. Yates v. Hollingsworth, 5 H. & J., 216.

There is, however, a distinction taken in the decided cases between the case of an exemption or discharge from liability by the ordinary act of the creditor himself. In the former case it is held by all the authorties that the pre-existing obligation, though fully and completely discharged by operation of law, is, nevertheless a sufficient foundation for a new promise to pay; as in cases before referred to of a debt barred by the statute of limitations, or where the debtor has been discharged therefrom under a bankrupt or insolvent law; while in the latter case, that is, by act of the creditor, it has been held by what would appear to be a preponderance of authority that the pre-existing liability that has been so released does not form a sufficient consideration for a new promise to pay. The distinction certainly is not very broad; but still it has obtained the sanction of several courts of high nuthority, and we are not disposed to disregard it. It was upon this distinction that the case of Stafford v. Bacon, 1 Hill, 532, was decided. There a debt had been discharged by accord and satisfaction for less than the amount due, and it was held that there remained no such moral ob

ap

ligation to pay the balance as would support a subsequent promise to pay, though it would have been otherwise, as declared by the court, if the discharge had been by mere operation of law. So in Warren v. Whitney, 24 Me., 561, it was held that a promise to pay a debt that had been voluntarily released by the creditor was not binding for want of a sufficient legal consideration, proceeding upon the distinction that we have just stated. And the same principle, founded upon this same distinction, was held and plied in Montgomery v. Lampton, 3 Met. (Ky.), 519, and also in Shepard v. Rhodes, 7 R. I. Rep., 470. In Willing v. Peters, 12 S. & R., 179, it was thought that the distinction was not substantial and well founded, and it was there held that a promise by a debtor to pay a balance of a debt after it had been voluntarily released by the creditor was good and binding, though it would appear the courts have not been inclined to follow that decision. Taking, then, the distinction to be established, and that a promise to pay a debt, after it had been voluntarily released by the creditor, is not supported by a sufficient legal consideration to make it binding, it follows that there was error in the ruling of the court below in respect to instructions asked by the respective parties.

Reversed, and a new trial ordered.

MURDER-EVIDENCE-PRACTICE.
NEW YORK COURT OF APPEALS.

SINDRAM V. THE PEOPLE.

Feb. 28, 1882.

Where it does not appear that the homicide was committed under the influence of provocation or sudden anger, evidence that the prisoner was irascible and subject to fits of passion from slight causes is inadmissible. Proof of such fact by itself will not authorize the inference that he committed the act under a sudden impulse attributable to the eccentricities of his character.

The theory that eccentricities of character and inordinate passion can render a sane man incapable of committing an offense which involves deliberation is wholly inadmissible.

Comments upon testimony by a judge in his chargo, s0 long as he leaves all the questions of fact to the jury and instructs them that they are the sole judges of matters of fact, are not the subject of exception.

The plaintiff in error, S. was convicted of murder in the first degree. Upon the trial his counsel offered to prove that for a number of years past he had been characterized by peculiarities and eccentricities of conduct which had caused criticism with reference to his mental capacity; that he was known to be the victim of inordinate passion, giving expression to it in various ways and at various times. This offer was stated to be more to enable the jury to consider the character and mental condition of S. prior to and in view of the circumstances of the killing, in order that they might be enabled to pass upon the grade of homicide, whether murder in the first degree or manslaughter in the third degree. This evidence was claimed to be admissible as bearing upon the question

whether the act of S. was the result of impulse and anger, or of a deliberate and premeditated design to effect death, and whether S. had a mind which, under the circumstances detailed in the case, could have formed a deliberate and premeditated design to inflict death, it being at the same time avowed that the evidence offered did not amount to proof of insanity.

Held, That if the evidence disclosed no circumstance indicating that the homicide was committed under the influence of provocation at the time or sudden anger, evidently that S. was irascible and subject to fits of passion from slight causes was not admissible. Such proof would not of itself have authorized an inference that he committed the act under a sudden impulse, attributable to the eccentricities of his character, in the absence of any circumstances occurring at the time which tended to excite his passion.

At the time the evidence was offered the prosecution had just closed its testimony. They had shown that on the day preceding the killing, S., who had up to that time been a lodger in the house of the deceased and her husband, had reco.ved notice to quit, and had left in the evening using angry expressions concerning the deceased and threatening to return the next day and make a bloody row. About two o'clock the following morning S. came to the house, entered with a pass key and was accosted by H., a stepdaughter of the deceased. H. testified that S. then appeared angry and excited. He said he wanted to see her mother, and when asked what for, replied "Never mind, I want to see your mother." Her mother. who was up stairs, heard the noise and asked who was there and witness told her. The deceased asked what he wanted and said he had no right there. S. said, come down here and I will show you what I want, speaking, as H. expressed herself, very saucy, crossly, angrily. Witness then went part of the way up stairs and looking back saw S. pulling out a pistol from his pocket slowly. She called out, mama, run, he has got a pistol, he is going to kill you. The deceased opened a window on the landing at the head of the first flight and called, watch, police. S. ran up the stairs, pushed the witness one side and fired at the deceased as she was calling out of the window. The ball went through one of the panes of glass; deceased then crouched in the corner and S. advanced upon her, putting the muzzle of the pistol within three inches of her head fired another shot which was fatal. On cross-examination the witness testified that no words passed between the deceased and S. except as above stated, and that when she called to the deceased that S. had a pistol and was going to kill her, deceased said to him, what do you want to kill me for, I never did anything to you. E., another witness, testified that she was up stairs and heard the conversation in the hall between H. and the prisoner, and that all she heard the deceased say was "what do you want with me," she did not hear the prisoner say anything in reply.

Held, That there was no legitimate connection between the eccentricities and peculiarities of character sought to be shown and the deed of the prisoner.

Also held, That the theory that eccentricities of character and inordinate passion can render a sane mant incapable of committing an offence which involves deliberation is wholly inadmissible.

Comments upon testimony by a judge in his charge, so long as he leaves all questions of fact to the jury and instructs them that they are the sole judges of matters of fact, are not the subject of legal exception. It is desirable that the court should refrain so far as possible from saying anything to the jury which may influence them either way in passing upon the controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error.

Judgment of General Term, affirming judgment of conviction, affirmed.

Opinion by Rapallo, J. All concur.

TROUBLES innumerable beset the path of voters in petticoats on every hand. A bill recently introduced in the New York legislature providing that "every woman shall be free to vote under the qualifications required of men" had lived long enough to reach a third reading, and now the attorney-general has crushed the hearts aud blighted the hopes of its friends by declaring the measure unconstitutional as being in conflict with the provision in the constitution that "every male citizen of twenty-one years * * * shall be entitled to vote,"etc. The attorney-general holds that the fact that women are not expressly prohibited does not bring the measure in harmony with this provision of the constitution, which is to be construed that to only male citizen shall the right therein con ferred be given.

DeWitt . Jones, administrator, &c. Error to the Dis trict Court of Franklin County. Settled and dismissed by the parties.

975. James T. Warder et al., v. The Board of Commissioners of Clark County. Appeal from the Court of Common Pleas of Clark County. Reserved in the District Court. Demurrer sustained and petition dismissed. To be reported hereafter.

1057. Joseph J. Dresback v. The State of Ohio. Error to the Court of Common Pleas of Fairfield County. Judgment reversed and new trial granted, for error in excluding evidence offered as shown by bill of excep tions No. 21; also, on the ground that the charge as applied to the case, was misleading as to the duty of the jury in respect to their finding as to the degrees of homicide. To be reported hereafter.

1137. Robert C. Lindsay v. The State of Ohio. Error to the District Court of Jefferson County. Judginent affirmed. To be reported hereafter.

1155, William F. Brown v. The State of Ohio. Error to the District Court of Ashtabula County. Judgment affirmed. To be reported horcaftor.

1183. H. C. Rutter, Superintendent. et al., v. The State of Ohio, on relation of Jamos Gatrol. Error to the District Court of Franklin County. Judgment reversed and petition dismissed. To be reported hereafter.

1191. The State ex rel., the Attorney General, v. The Pioneer Live Stock Company. Quo warranto. Judgmont of ouster. To be reported hereafter.

MOTION DOCKET.

82. J. L. Wilcox v. James McNally. Motion to dismiss cause No. 691 on the General Docket for want of

printed record. Motion granted.

93. Theophilus P. Brown v. The Merchants' National Bank of Toledo. Motion for injunction in cause No. 1164 on the General Docket. Motion overruled.

96. Pittsburgh, Cincinnati & St. Louis Railway v. George Leathley. Motion for a stay of execution in cause 1174 on the General Docket. Motion overruled. 118. Herman Eckel v. Joseph Renner. Motion to dispense with the printing of certain exhibits in cause Nc. 1178 on the General Docket. Motion granted.

119. James King v. the Incorporated Village of St. Paris. Motion for leave to file a petition in error to the District Court of Champaign County, and to take same out of its order for hearing. Motion granted and execution suspended as per entry.

120. Ohio ex rel John H. Meyer v. Edward Henderson, City Clerk, etc. Motion for an alternative writ of mandamus, and to take same out of order. Motion overruled on the ground that relief should be sought in a court below.

121. James N. Stark v. James Lytle. Motion to dismiss cause No. 378 on the general docket for want of printing, etc., and to assess penalty. Motion to dismiss granted and motion to assess penalty overruled.

123. Jofferson W. Davis v. Phillip Bauer. Motion for leave to file printed record in cause No. 988 on the General Docket. Motion granted.

124. Ohio ex rel. Phillip Rising v. Commissioners of Fayette County. Motion for a peremptory mandamus. Motion granted.

125. Ohio ex rel. James Good v. Commissioners of Fayette County. Motion for a peremptory mandamus. Motion granted.

126. Austin Davis v. Tho State of Ohio. Motion for leave to file a petition in error to the Court of Common Pleas of Morgan County. Motion overruled.

127. City of Youngstown v. James E. Montgomery. Motion to re-instate cause No. 966 on the General Docket. Motion granted.

128. Adelbert Post v. The State. Motion for leave to file a petition in error to the Court of Common Pleas of Lucas County. Motion granted.

129. James Coleman v. The State. Motion for leave to file a petition in error to the District Court of Hamilton County. Motion held under advisemeut.

Saturday, July 1st, 1882.

92. Mary Ann Huston et al. v. Thomas Crooks, executor, &c. Error to the District Court of Montgomery County. Judginent of the District Court reversed and that of the Common Pleas modified. To be reported

hereafter.

The Court adjourned to September 25th.