The Albany Law Journal.

ALBANY, JANUARY 3, 1880.

CURRENT TOPICS.

HE Indiana Legislature at the last session author

Tized the governor to appoint an insurance com

mission, to act with the attorney-general and the State auditor, in codifying the present laws of insurance and preparing a draft of a new law covering the subject. The governor accordingly appointed Mr. John A. Finch, of Indianapolis, the same gentleman, if we mistake not, who once gave some vigorous and lively views of the business of insurance at a convention of insurers in the city of New York some years ago. The commission have under consideration the following questions: I. What is necessary to give the public accurate information concerning the standing of companies from without the State seeking to do business in Indiana? II. How should such companies be brought within the process of the courts of the State? III. Upon what basis should such companies be taxed, if taxed at all? To whom shall taxes be paid — the treasurer of State, or to treasurers of the counties where premiums are collected? IV. Supposing

such a law to be constitutional, is it desirable on any account, or equitable to adopt what is known as the reciprocal or retaliatory law? And the commission has solicited answers from the principal insurance companies to the following inquiries: 1. Should a retiring policy-holder have a cash surrender value secured to him? 2. Should the reserve on the policy of a retiring policy-holder be applied to purchasing paid-up insurance, or to extending time of his policy at its face value? 3. Should any provision be made for ascertaining the additional value a tontine policy may have at lapse over an ordinary life policy? 4. What State has most fairly met this subject according to your experience? 5. Could a non-forfeiture law be in the alternative, to apply only in case no other and equivalent agreement is made between the policy-holder and the company? 6. Can you submit the form of a non-forfeiture law which will embody your views?

VOL. 21. No. 1.

An Indiana newspaper calls attention to a recent decision of the Supreme Court of that State, holding that an indictment simply alleging that the accused had "sold a gill" of intoxicating liquor, was insufficient, under a law prohibiting the sale of such liquors in quantities less than a quart. The court said: "In selling a quart or a barrel, the accused would sell a gill, and yet be guilty of no violation of law." The Indianapolis Herald pronounces this "the silliest opinion ever entered on the records of a court since the curse of law came into the earth with sin and death." The editor argues, that on the like reasoning, if a man says he bought a gill of molasses, he must be understood as meaning that he bought a quart, unless he negatives that inference; and if he says he walked a mile yesterday, he must be understood to have walked ten miles unless he expressly says he did not. And the editor adds: "What a precious institution a court is that must have a language of its own, utterly unlike the language of the people who give it business, pay its judges, and bear its follies!" But what would become of the rights of citizens if courts did not have a language of their own? The basis of this decision, which seems so absurd to this editor, is very simple to lawyers. It is not unreasonable to demand, where the citizen's liberty and reputation are at stake, that the accusation against him shall be stated in unambiguous language, leaving nothing to inference, and taking nothing for granted. The gravamen of the offense in question is the selling in quantities less than a quart, and although a gill is less than a quart, yet the bare allegation of the sale of a gill does not necessarily negative the possibility that a quart was sold. If the purchaser of a quart should swear that he bought a gill, he would technically be telling the truth. It is pretty hard for the editors of newspapers, particularly political newspapers, to appreciate the importance of strict accuracy of statement, but the law lays great stress on this point.

Last week we gave an article on Chattel Mortgages on Stocks in Trade. This topic is also treated by Mr. Jones, the author of the well-known treatise on Mortgages, in the current number of the Southern Law Review, in which the writer takes very radical ground. He says of the New York decis

ions, compiled by our contributor, holding that the mortgagor's possession with power of disposal is conclusively fraudulent, "they have very little in them to deserve commendation." In spite of that, as the New York Daily Register remarks, they are "substantially followed in Illinois, Minnesota, Missouri, Nebraska, New Hampshire, Ohio, Tennessee and Texas, Virginia, and Wisconsin. In Indiana the rule is still more strict." The latest decision in our State, we believe, is Southard v. Pinckney, 5 Abb. N. C. 184. On the other hand, the courts of Alabama, Georgia, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, North Carolina and Rhode Island have pronounced that the mortgagor's possession, with power of disposal, is only prima facie evidence of fraud. In this equal numerical division, the Federal Supreme

Court incline the scale to the New York side. Mr. Jones concludes: "That the doctrine of absolute fraud arising in a mortgage of merchandise from the mortgagor's retaining possession, with a power of disposal in the usual course of trade, is not supported by any preponderance of authority; that it is contrary to sound principles of jurisprudence; that it has no reason for its existence, derived from general observation and experience; that it is contrary to sound policy; and that the qualifications of the doctrine made by leading courts have in large measure destroyed its force, and are indicative that these courts wish themselves well rid of the whole

of it, and soon will be." Don't be too sure of that, Mr. Jones. There are things in the law a thousand times more absurd than this, of which we have made long and loud complaints, but which the courts are just as far as ever from correcting. Stare decisis is an obstinate beast. Legislation alone will correct such things. And we are not nearly so sure as Mr. Jones is that the New York doctrine is wrong. contrary would certainly be a very unsafe doctrine for vendors, although it might be beneficial to weak purchasers. Mr. Herman, in his treatise on Chattel Mortgages, adopts the New York doctrine, and gives good reasons for his preference.

The

We have received a letter from a gentleman down in Texas, by the name of Blanc, censuring us for invading sacred things in our comments on the Coppers burial case in New York, and calling us a "bigot" and a "very little pigmy." We cannot conceive what Mr.- - means by "bigot," unless he accepts the definition given by a colored gentleman in the south, who said that another gentleman of his race was a "bigoted nigger," and when asked by his master if he knew what "bigoted" meant, replied that a "bigoted nigger was one who knew too much for one nigger and not enough for two." We can assure Mr.- that we would censure the priests of any sect who should act like those in the Coppers matter. This is not a religious or sectarian matter. If a minister breaks the law, he must be punished or corrected, just like a man out of orders, and no matter what sect he belongs to. We regret to notice that such a stickler for

reverence to sacred things as Mr.

should write God with a small "g" à la Mr. John Morley, and also that he writes the plural of pigmy, "pigmy's." Gigantic Mr., pray contain yourself, and write no more impudent and illiterate letters to editors, for they don't like them. Mr.however, emits a gleam of sense by renewing his subscription and paying for it. We could stand a great many more such letters if the writers would do likewise.

Subject to correction from our Texas subscriber above mentioned, we would call attention to the exemption of ecclesiastical property from taxation.

Our statute, like the statutes of many other States,

* *

exempt from taxation "every building for public buildings are situate." Under this provision it has worship * been the practice in some localities to exempt parsonages, owned by religious societies, and situated on adjoining or other lots. In answer to an inquiry from Oswego in regard to the legality of this pracfollowing very sensible reply: tice, our State Assessor, James A. Briggs, makes the

and the lots on which such

"This does not exempt a dwelling-house standing by the side of a church, altho' the society owns the land. Suppose a church society should buy a lot 150 x 150 feet, put up a church for public worship occupying 100 feet front of the lot by 150 feet deep, and adjoining it should put a fine store 50x100 feet, would the store be exempt from taxation because the society claimed it was on the church lot? I have yet seen but one building on a lot. The parsonage belonging to Grace church and adjoinging it on Broadway, New York city, is assessed at $80,000. The parsonage of the marble Methodist church on Fourth avenue, whose walls on one side are the walls of the church, is assessed at $18,000. The parsonage of the catholic bishop is assessed at some $50,000. Your assessors have obeyed the law in assessing the parsonages in Oswego. Your common council or supervisors have no more right to relieve the parsonages of taxes than they have the Doolittle House or the house of George B. Sloan; and it is very much easier for the members of one of your religious societies to pay the taxes on a parsonage than it is for some widow that has a little home, or some honest, industrious fellow whose wife or child has been sick for months, to raise money for the tax bills. I hope soon all church property will be made subject to taxation and thus we shall settle all dispute."

A man down in Tennessee is trying to re-instate the institution of slavery there, and owing to the popular misconstruction of rights and remedies, has seemed to have met with some indorsement from the courts. Brimingham was indicted for forcibly carrying away Julia Brimingham, a person of color and of African descent, with the intent that she should be held in Lauderdale county, Tennessee, as a slave; and for enticing, persuading and inducing Julia to go to a place in said county with the intent that she should be then and there held as a slave. This indictment was drawn under section 5525 of the Revised Statutes, which is as follows: "Every person who kidnaps or carries away any other person, with the intent that such other person be sold

into involuntary servitude, or held as a slave, or who entices, persuades or induces any other person to go on board any vessel, or to any other place with the intent that he may be made or held as a slave, or sent out of the country to be so made or held, or who in any way knowingly aids in causing any other person to be held, sold, or carried away to be held or sold as a slave, shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment of not more than five years, or by both." Judge Hammond decided that this act of Congress did not apply to the case of a man pretending to own a slave in Tennessee, where slavery is unknown. The indictment was based upon a misapprehension of this act of Congress, which was enacted to prevent the kidnapping of colored people and carrying them out of the country to be sold into slavery. Whether the Civil Rights bill or any other act of Congress can be made to apply, is a question which was not before the United States Court, and was not decided. The Memphis Avalanche says:

"The Constitution and laws of Tennessee fully protected the two girls against any restraint of their liberty and any wrongful deprivation of their rights to the wages of labor. They had the same law to redress their grievances as other citizens had. Their remedies were unobstructed and ample, the Constitution, laws and practices in Tennessee being in harmony with the Thirteenth Amendment to the Constitution of the United States abolishing slavery. No Federal legislation or Federal court is needed in Tennessee to enforce a full recognition of the laws against slavery. These girls seem only to have been too stupid to invoke the protection of the law, and when their neighbors finally commenced legal proceedings they began in the wrong place and in an illegal mode. There is no end of courts and remedies for them, but like other people they must be confined to the remedies appropriate to their case."

NOTES OF CASES.

IN Darland I., Taylor; North. p. 100,

́N Darland v. Taylor, Iowa Supreme Court, Dethe ques

tion of symbolical delivery of a gift was decided. The plaintiff's intestate held certain notes against the defendant, her grandson. One night, three weeks before her death, feeling sick, and that she was liable to die at any time, and fearing that she might die leaving the notes behind her, she got up and destroyed them. She afterward, and during her last sickness and shortly before her death, repeatedly declared that she did not wish that defendant should have to pay them after her death.

Held,

a valid gift, pro causa mortis, unrevoked by her recovery and survival for three weeks after the night when she destroyed the notes, and effectuated by a symbolical delivery. In Garrigan v. Auden, 10 Johns. 292, a father bought a ticket in a lottery, which he declared he gave to his daughter, and wrote her name upon it. After the ticket had drawn a prize he declared that he had given the ticket to his child and that the prize money was hers. This was held sufficient to authorize a jury to infer all the formality requisite to a valid gift, and that the

title to the money was complete and vested in the daughter. In Gardner v. Gardner, 22 Wend. 526, a debt contracted by the wife was held to be discharged as a gift, causa mortis, by the husband's destroying the bond, the evidence of the debt, and declaring that the money was hers. In Hillebrant v. Brewer, 6 Tex. 45, where the father branded certain cattle in his son's name, and recorded the brand, it was held sufficient to establish a symbolical delivery. In Blasdel v. Locke, 52 N. H. 238, A deposited a sum of money in a savings bank in the name of B, who was her niece, intending that it should be a gift to B, but retained the deposit-book in her own possession until her death. During her last sickness, A for the first time informed B of the gift. On a bill in chancery, brought by the administrator of A against B and the bank to recover the deposit, it was held that the deposit created a trust in the bank in favor of B, and that upon information of what had been done being conveyed by A to B, and acceptance by B, her title to the money became absolute, although there was no delivery of the depositbook. In Ellis v. Secor, 31 Mich. 185; S. C., 18 Am. Rep. 178, on a slate by the bedside of E., who was found dead, was, in her writing, and signed by her, the following: "I wish Dr. L. to take possession of all, both personal, real, and mixed. I am so sick I believe I shall die; look in valise." In a valise was found a memorandum written by her, directing Dr. L. to take all of her property. Held, a valid gift, causa mortis, of personal property. See, also, note to same case, 18 Am. Rep. 184, and note to Sheedy v. Roach, 26 id. 684.

In Johnson v. Union Insurance Co., Massachusetts Supreme Court, October, 1879, the plaintiff procured insurance with defendant on his stock in trade and personal property as follows: "$900 on three billiard tables, balls, and cues; $500 on bar and saloon fixtures, furniture and pictures; $100 on stock in trade, chiefly liquors and cigars, including glass and other ware contained in frame building, known as the Franklin billiard hall, situate on Franklin street, Quincy Adams, Mass." The policy contained this condition: "And in case any gunpowder or other article subject to legal restriction shall be kept in quantities greater than the law allows, or in a manner different from that prescribed by law," "this policy is to be null and void." The billiard and liquor business was carried on for gain on the premises mentioned as one business. The plaintiff was not licensed to keep billiard tables, which license is required by statute when billiard tables are kept for gain. Held, that this case was governed by the decision in Kelly v. Home Ins. Co., 97 Mass. 288. The keeping of the billiard tables for hire and of the liquors for sale being carried on as one business, and the policy being illegal as to the former, the whole contract is void.

The Kelly case above cited held that a policy of insurance on intoxicating liquors is void, if they are kept by the assured for illegal sale. This is on the principle that the law will not give effect to a con