due, and failed to pay the annual interest then due for the past year upon the two notes above described. No payments have since been made on said policy, or on the notes above described. "In apportioning the surplus in the shape of dividends, the trustees have uniformly refused to allow dividends to those persons who at the time the dividend was declared, were in arrears to the Company. "Under this rule, when, in 1868, a dividend on the business of 1865 was made, no dividend was allowed on the policy to Warnecke, because of his not paying his second premium note for $43.25, given July 12, 1866, and the interest thereon (as well as on the first note), coming due July 12, 1867. "Wm. Warnecke died at Dubuque, Iowa, on the 25th of October, 1869, of a natural death. His widow, Charlotte, intermarried with one Whitman, and died subsequent to the institution of this suit. The present plaintiff has been appointed administrator of her estate by the Circuit Court of Dubuque County, Iowa. Proofs of death were furnished, and notice of his death given to defendant on or about July 12th, 1871. "Facts touching the payment of pre- of 1866, no dividend was allowed on said miums. "By Section 13, Charter of the Company, it is provided: "That the officers of said company may cause a balance to be struck of the affairs of the company, annually, biennially, triennially or once in five years, as the Board of Trustees may determine, and shall credit each member with an equitable share of the profits of said company.' 1858. "For the same reasons, when, in 1869, a dividend was declared on the business policy to said Warnecke, and for the like. reasons, none was allowed on the dividend declared in 1870, on the business of 1867. "In figuring up the dividends for the years 1865, 1866 and 1867, and since that date, the policy of Warnecke and all others similarly situated, were treated by the company as lapsed policies no longer binding upon the company. "The per cent. of dividends declared 66 The company commenced business in The first division of surplus was and paid to the policy-holders in the made in 1864, on the business of the five year 1868, on the business of 1865, was preceding years; the next in 1867, on the thirty (30) per cent. on the total amount business of 1864; in 1868, on the business of each annual premium. of 1865; in 1869, on the business of 1866; in 1870, on the business of 1867. "On the business of 1866, declared and paid in 1869, thirty-five per cent. on the total amount of each annual premium. And a like percentage on the business of 1867, declared and paid in 1870. "The defendant is a corporation duly organized under the laws of the State of Wisconsin; is a mutual company, and the headquarters of its business or home office is at Milwaukee, Wisconsin. "There was never any surrender of the premium notes by the company to the insured, nor offer so to do, neither was there a surrender of the policy by Warnecke. "No demand was ever made rpon Warnecke at any time for payment of the principal of either of the two pre- certificate. The plaintiff did not get pay mium notes given July 18th, 1865, and July 12th, 1866. Held, The non-payment of the principal of the premium notes does not work a forfeiture. All the assured had to pay, under the contract, were the cash payments and the interest on the premium The payment of the premium notes was provided for from the dividends. on them, and by their deduction from the sum due at the death of the assured. notes. ment, and brought his action, which the appellate court assumed to be pending when the repealing Act of November, 1874, was passed. The plaintiff insisted that the Act of 1874 impairs the obligation of a contract, and is invalid, as in contravention of the Constitution of the United States. On the trial below judgment was for the defendant, and plaintiff appealed. Held, That the proceeding of the General Assembly, appropriating money to pay the interest, was in no case a contract, it was ex parte. 2. The original contract, as shown by the bonds and coupons, remains intactit is not impaired. There has been no action of the State on the contract. 3. The control of the public money is exclusively with the Legislature. The Treasurer and the Auditor are ministerial officers only. 4. The mandumus will not lie. Wilson, Trustee, etc., v. Jenkins, Pub- A proceeding in rem. against a vessel for a maritime contract cannot be had in a State Court. Sheriff or other officer cannot justify under a void process. A Sheriff seized a steamboat, with her tackle and furniture, under warrant of The Constitution of 1868 ordered the General Assembly to provide for the prompt payment of the interest on the public debt, and the General Assembly directed the Treasurer to pay the interest out of any public money not otherwise attachment of a State Court, issued by appropriated. The amendment to the Constitution in 1874 repealed the provision of 1868, and the General Assembly, in November, 1874, repealed the Act of 1868, providing for the payment of the interest, and forbade these officers to act except as directed by law. virtue of an Act of the Legislature of the State. The attachment was vacated and set aside. Held, 1. That there is no authority in the State to give a proceeding in rem. against a vessel for the enforcement of a maritime contract. The Act of the Legislature was unconstitutional. The plaintiff had made due demands on the Treasurer for the money, and `on 2. The process being void on its face, the Auditor for his action, on the Trea- it is no protection to the officer; he cansurer refusing to pay without the Auditor's not excuse his ignorance of the law. He would not have been liable for refusing to execute a void process, and he could have protected himself by a bond of indemnity. Campbell v. Sherman. 35 Wisconsin, pp. 103-111. Opinion by Cole, J. MARRIED WOMAN. acre tract of land conveyed to Williams, and to have her deed declared void; or, if this relief cannot be granted, that she recover the Walnut street property from Cohen and wife, or the consideration agreed to be paid therefor, with interest, and, lastly, if not entitled to relief upon either of the foregoing grounds, that the mountain land be decreed to her, and the difference in value between it and the 4 acres be paid to her out of the estate of John P. Hodges, or out of the Power of married woman to convey separate estates. May do so when the assets of the firm of Womicut & Hodges. power is not withheld from her in deed The cause was heard upon the demurrer or devise; and without the consent of of Cohen and wife, Ragsdale, McKinney the husband, if there is a private exam- and Key. The demurrer was overruled ination legally taken under Tennessee and the defendants allowed to appeal. Statute. She could convey with the Williams answered the bill, but no aphusband's consent, if so examined, and the husband may join in the deed. pearance was made by the administrator or minor heirs of John P. Hodges, nor The complainant, in her bill, alleges that on the 11th of May, 1860, E. A. were any steps taken to bring the cause Clay conveyed to her, to her sole and to a hearing as to them. separate use, 4 acres of land in or near Chattanooga; that afterwards she joined her husband, John P. Hodges, in a conveyance of this land to W. P. Williams, the proceeds going to pay debts due from the firm of Womicut & Hodges, of which her husband was a member; that her husband, to reimburse her, conveyed to her, to her sole and separate use, a certain lot in Chattanooga, called in the record the Walnut street property. Afterwards she joined her husband in the conveyance of this latter property to Cohen and wife for $2,000, part of which was paid in cash on debts of her husband. Three notes were executed payable to herself and husband, one for $710 was turned over to her, and she has disposed In Gray v. Robb, 4 Heiskell, 74, this of it, as a matter of necessity, to raise Court held, that if the deed creating the money for herself and family. The two separate estate of a married woman con$500 notes were placed in the hands of tains no power of disposition, no such S. A. Key as collateral security to secure power can be exercised, and the deed of D. B. Ragsdale and P. A. McKinney as the husband and wife in such case was a securities of said John P. Hodges, for nullity. This was in regard to a deed money due for the purchase of certain executed in 1862. The Act of 1869-70, mountain land described. John P. Ch. 99, however, is to be considered. The Hodges afterwards died. 3d section is as follows: "Femes covert Held, the case, as to Williams and the heirs and administrator of Hodges, is not before us. We will consider only the questions raised by the demurrer of the other defendants. The objection upon the ground of multifariousness was withdrawn. First, as to the right of the complainant to recover the Walnut street property from Cohen and wife. The complainant held this property under a deed from her husband, conveying it to her sole and separate use. The deed contains no provision in regard to her power of sale or disposition. No such power is in terms conferred, nor is there any restriction upon the power. The bill prays, first, to recover the 4 or married women owning a separate estate settled upon them and for their a privy examination in this case, and the separate use, shall have and possess the power of disposition was not expressly same power of disposition by deed, will withheld in the deed of Mrs. Hodges. or otherwise, as are given by the first and So we hold that, under this statute, the second sections of this Act-provided the deed to Cohen and wife was not void for power of disposition is not expressly want of power to make it. We think withheld in the deed or will under which there is no sufficient allegation of fraud they hold the property." or undue advantage to avoid the deed. The first section enacts: "Married The result is, that the decree of the women over the Chancellor overruling the demurrer as of twenty-one years, age owning the fee or other legal or equit- to Cohen and wife, is erroneous-it able interest or estate in real estate, should have been sustained, but the deshall have the same power of disposition cree was correct in overruling the deby will, deed or otherwise, as femes sole." murrer as to Key, Ragsdale and McKinThe second enacts that the powers of ney. Whether the complainant's equimarried women to sell, convey, devise, ties are superior to those of McKinney charge or mortgage their real estate shall and Ragsdale, it is not proper now to not depend upon the concurrence of the husband, provided her privy examination shall take place before a Chancellor, Circuit Judge or Clerk of a County Court. A subsequent section limits the provisThe decree will be reversed and the deions of the Act, except the third section, murrer sustained as to Cohen and wife, to femes covert whose husbands have and affirmed and remanded as to the other abandoned or refused to live with them, defendants. The costs of this Court will or are non compos mentis, with a proviso be paid one-half by complainant and onethat married women may devise their half by Ragsdale and McKinney. real estate as femes sole, but not to defeat Hodges v. Williams et al. tenancy by the courtesy. Supreme Ct. of Tennessee, June, 1875. Opinion by McFarland, J. The third section is to be taken with the first and second sections, except that the third section is not limited, as is the first and second sections, to that class of married women above mentioned. From 66 this it would seem to result that a married woman having a separate estate" where the power of disposition is not expressly withheld in the deed or will, may convey the same as a femes sole, without the concurrence or consent of her husband, provided her privy examination be taken by a Chancellor, Circuit Judge or Clerk of the County Court. We take it that if she could convey without the concurrence or consent of her husband, she could certainly do so with his consent, provided the privy examination be had as required. The joining of the husband could not vitiate the deed. The bill does not deny that there was determine. The question as to complainant's rights against Williams, or the heirs and administrator of her husband, are not before us. the crossing where he was killed. He engine; the engine was in that position stopped and sold them some cakes, and until it struck the wagon; I suppose the then drove on. One of the witnesses, horse's head was within a few feet of the Alfred Ensminger, in answer to the ques- track when I first saw it; when I first tion, "What was the next thing that saw the horse, I was about half way from attracted your attention after the baker the whistling-post to the crossing, as near started on his way westward?" said, as I can tell; when I struck Weber, "Well, after a young man had bought the horse stood with his hind feet the cakes from him, Alfred Priesler, we just across the north rail of the started right away to work again; I was south track, as near as I can tell; Weber working with my face eastward, stooping was sitting in the wagon—not quite in down tamping a tie, and I heard a sharp the middle of the wagon-a little nearer whistle; I turned around and looked to the front than the middle; when I got up the road, and I saw the engine strike close enough to him, I saw he had hold the wagon and horse." The other wit- of the lines, pulling back, as though he ness, P. Deitz, said: "I bought some cakes was trying to back the horse; I think from him, me and Priesler. After the the two front wheels stood near about purchase of the cakes, we went back to the north rail of the south track; the work again and he started on." In re- shafts stood the same as a horse backing ply to the question, "Where did you next or trying to back, standing up alongside see him?" he said: "Well, I heard a of his neck." Henry Robinson, the firewhistle; I looked up; says I, 'There goes man, testified: "My attention was called the baker'—we just call him the baker. first as I was sweeping off the foot-board This whistle was just as the baker was by an alarm-whistle; I looked on my driving on, as near as I can tell. The side and saw the horse; I saw a man train and the baker were approaching each other at the time; I did not know that the train was coming until I looked up; I did not hear any but the one whistle." In answer to the question put to him on cross-examination," Was the horse close to the rail when you saw him?" he said: "I could not say positively, because I was scared; I could not say how close he was; I could see the horse, though." On behalf of the defendant, Samuel H. Fee, the engineer of the train, testified as follows: "When we got to the end of the stone wall, or near about there-I believe the whistling-post stands near the endI blew the whistle four blasts, for the next crossing below. About half way from that (the whistling-post) to the crossing below, I saw the horse coming out on the road towards the track; I blew the whistle again, some four or five blasts, sharp and quick, and a very short time after that the horse and wagon stopped on the track; as soon as they stopped, I pulled the patent brake and reversed the &c.; you should find for the defendants, seated in the wagon near the middle, as near as I could tell by the appearance; the horse was stopped; it appeared to me that he was trying to back the horse off the road, as the shafts were up alongside of the horse's neck, and the wagon had run on him." This was the substance of the testimony on the subject. The defendant requested the Judge to charge: "As the uncontradicted evidence in this case shows that George H. Weber did not stop before arriving on the track, the verdict must be for the defendants.” And the answer was: "We cannot affirm this point, but say again that the first presumption of law is that he did stop, look and listen. But this presumption will give way to the actual truth, that he did not do so. And we again say, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, |