Page images
PDF
EPUB

Vol. IV.]

DIGEST OF CASES.

[No. 2.

laws, to select and hold the craft, its apparel, or furniture, exempt from execution. Johnson v. Ward, S. C. Ohio, Mo. West Jur., January, 1877.

HUSBAND AND WIFE.

See DEED.

INJUNCTION.
See STREET RAILWAY.

INSURANCE. 1. TAXATION. THE PREMIUM RESERVE FUND OF AN INSURANCE COMPANY is the amount set apart by the company, for the payment of losses accruing from deaths of its policy holders. The amount of this fund depends upon the amount of the policies outstanding, and is the present value of such policies, or, what is equivalent thereto, the sum that is required to safely insure them. Under a statute which declares that “the indebtedness of the tax-payer shall be deducted, and the excess only shall be taxed,” the premium reserve fund of an insurance company is exempt from taxation. Alabama Gold Life Ins. Co. v. Loth, S. C. Ala., Ins. L. J., December, 1876.

2. WHERE, THROUGH A MISAPPREHENSION, AN AGENT ISSUES A POLICY ON ANOTHER BUILDING THAN THAT INTENDED and applied for by the insured, equity cannot reform the contract to apply to the building intended. Mead v. Westchester Fire Ins. Co., Ct. App. N. Y., Ib.

3. ABORTION. WHERE DEATH RESULTED FROM an illegal operation voluntarily submitted to by insured to produce abortion: Held, that public policy would preclude the company from insuring against the consequence of such an act, and no recovery could be had. Hatch v. Mut. Life Ins. Co., S. C. Mass., Ib.

4. PLEADING AVERMENT OF INTEREST. Where the insurance was taken out by H. upon his own life, payable if alive at the end of twentythree years, or for the benefit of his father in the event of previous death. Held, in an action by the latter, an averment of interest was unnecessary in a declaration which set out the policy. Mass. Mut. Life Ins. Co. v. Kellogg, S. C. II., Ib.

See CHATTEL MORTGAGE, 3.

MANDAMUS.

To COMPEL OVERSEERS OF POOR TO RECEIVE PAUPER. Mandamus is the proper remedy to compel the overseers of the poor of a township to receive and maintain a pauper under an order of removal unappealed from. Commonwealth v. Overseers of the Poor, fc., S. C. Pa., Leg. Int., December 15, 1876.

MORTGAGE.

See NATIONAL BANK.

Vol. IV.]

DIGEST OF CASES.

(No. 2.

NATIONAL BANK. 1. MORTGAGE. SALE OF MORTGAGED PREMISES. ULTRA VIRES. – A mortgage given to a national bank to secure a preëxisting debt by the mortgagor, and to secure a future loan to him, is as to the latter ultra vires. If the mortgaged premises be sold, the proceeds arising therefrom must be applied in discharge of such preexisting debt, notwithstanding such proceeds arose from a sale by the sheriff. Woods v. People's Nat'l Bank of Pittsburg, S. C. Pa., Leg. Int., December 29, 1876.

2. AN INDORSER OF NOTES HELD BY A NATIONAL BANK, SECURED BY A MORTGAGE, has a right to have the proceeds arising from a judicial sale of the mortgaged premises by the bank applied to the payment of such notes in his relief.

Ib.

RAILROAD.

See CONTRACT.

RECEIVER.

RIGHT TO SUE IN JURISDICTION OF COURT OTHER THAN THAT BY WHICH APPOINTED. A receiver appointed by a state court, who has reduced property to possession in his own state, may maintain replevin for such property in another state. Cagill v. Wooldbridge, S. C. Tenn., Cent. L. J., January 5, 1877.

STREET RAILWAY.

ABUTTING OWNERS. INJUNCTION.

- DAMAGES. Where, by the charter of a city, its local authorities are vested with exclusive control over the streets, and those authorities grant permission to lay down railway tracks along a street, the owners or occupants of property fronting on such street cannot enjoin the laying of such tracks, nor be allowed any damages or compensation for such use of a street, when no unnecessary damage is inflicted. Chicago, Burlington, f Quincy R. R. Co. v. McGinnis, S. C. Ill., Cent. L. J., January 5, 1877.

TAXATION.

See CONSTITUTIONAL LAW; INSURANCE, 1.

TELEGRAPH COMPANY.

See CONTRACT.

TRUSTS.

DEPOSIT IN SAVINGS BANK. - VOLUNTARY TRUST.

How TRUST CONSTITUTED, ETC. — B. deposited in a savings bank certain money in his own name as trustee for R. and gave the bank book to R., who was his step-daughter ; R. returned the book to B., in whose control it remained until his death. In an equity suit by R. against the administrator of B.,

Vol. IV.]

BLAKE v. THE PEOPLE.

(No. 2.

claiming the deposit as trust funds held by B. for R.: Held, that the trust was completely constituted. Held, further, that the trust being constituted, the fact that it was voluntary was no reason for refusing relief. To constitute a trust it is enough if the owner of property conveys it to another in trust, or if the owner of personalty unequivocally declares, either orally or in writing, that he holds it in præsenti in trust for another. Ray v. Simmons, S. C. R. I., Am. Law Reg., December, 1876.

See ADMINISTRATOR.

ULTRA VIRES.
See NATIONAL BANK.

SUPREME COURT OF ILLINOIS.

[JUNE, 1876.]

IMPRISONMENT FOR FAILURE TO COMPLY WITH DECREE FOR PAYMENT

OF ALIMONY.

BLAKE v. THE PEOPLE.

Decrees for the payment of alimony are governed by the same rules as other decrees for

the payment of money.

Hervey, Anthony f Galt, for appellant.
J. K. Dow, contra.

OPINION by Scott, C. J. Shortly stated, the case made by this record is, that on the eighth day of February, 1875, the court entered an order in the case of Christine Blake against Barnum Blake, then pending for divorce, that defendant should pay the complainant $75 forthwith, and the sum of $65 on the first day of every month next following during the pendency of the suit, for temporary alimony, also pay the further sum of $150 to her solicitors within ten days from that date, as a reasonable retainer and counsel fee, and that defendant refund to her the sum of $6, costs advanced, and that in case of default in the payment of such sums of money, or any part thereof, the same should be collected in accordance with the usual practice in courts of chancery in such cases.

An affidavit having been filed showing defendant had not complied with the decree of the court in that particular, and that there was then due, under the decree, the sum of $126, and that another monthly instalment would mature on the next day, thereupon on the first day of June, 1875, on motion of complainant's solicitors, the court entered an order that defendant be arrested and brought into court for a failure to make payments of the several instalments of alimony and solicitors' fees as he had been directed to do by the original decree.

On being brought into court, defendant first entered a motion that he Vol. IV.]

BLAKE v. THE PEOPLE.

[No. 2.

a

might be discharged from arrest for the reason he was then, and had been, pecuniarily unable to comply with the decree of the court for the payment of the several sums of money specified; and secondly, for a modification of the decree allowing alimony, that the instalments to be paid might be so reduced that he could thereafter pay them. Both motions were based upon affidavits in which were given in detail the facts relied upon in support of the motions. Counter affidavits having been presented and considered, the court overruled both motions, and ordered defendant to pay instanter the amount due under the original decree, and in default of such payment he be remanded to the custody of the sheriff, to be safely kept until he should comply with the order, or be otherwise discharged.

Under our statutes there are several modes in which decrees in chancery may be executed or enforced. When there shall be no direction that a master in chancery or commissioner execute a decree, the same may be carried into effect by execution, or other final process, according to the nature of the case, or the court may, if necessary, direct an attachment to be issued against the party disobeying such decree, and may fine or imprison him, or both, in the discretion of the court, and may also direct a sequestration for disobedience to any decree. R. S. 1874, p. 203, sec. 47.

In divorce cases the court is authorized to require the husband to pay the wife such sums of money as may enable her to prosecute or defend the suit, and when it is just and equitable, may allow her alimony pending the litigation, and may enforce the payment in any “manner consistent with the rules and practice of the court.” R. S. 1874, p. 421, secs. 15, 18.

It is apprehended that decrees for alimony may be enforced by execution or other final process, or other decrees in chancery, or in any other mode consistent with the practice in the courts of chancery. But as cumulative remedies, no doubt the court may enforce decrees for alimony, either by sequestration of real or personal estate, by attachment against the person, by fine or imprisonment, or both, in the discretion of the court, as other decrees in chancery may be enforced.

That courts possess power to commit as for contempt, to compel obedience to decrees for the payment of alimony, has been recognized by this court in a number of cases. Buck v. Buck, 60 III. 105; Ö Callaghan v. O’Callaghan, 69 Ill. 552; Dinet v. The People, Sept. T. 1873. In Buck v. Buck, the court committed defendant for disobedience to a decree for alimony and maintenance, and its action was affirmed on appeal.

While this extraordinary power is conceded to rest in the courts, it is nevertheless subject to this limitation imposed by the Constitution, that a party may not be imprisoned except in cases where it shall appear he has the pecuniary ability to enable him to comply with the decree, and his disobedience is wilful. In O'Callaghan v. 0° Callaghan, it was said: “ The court is empowered to punish wilful obstinacy in such cases by imprisonment, but we think the spirit of our Constitution forbids that the pecuniary inability of the party, not resulting from his fraudulent conduct to produce that condition, cannot be punished as a contempt by imprisonment.

Where the neglect or the refusal to perform the decree is not from mere contumacy, but from the want of means, the result of misfortune, not

Vol. IV.]

NOTES OF New Books.

[No. 2.

induced by any fraudulent conduct on the part of defendant, the party will be compelled to adopt some mode other than imprisonment to enforce the decree consistent with the practice in the courts, either by execution or by other final process, or by sequestration of real or personal estate, or by the exercise of such other powers as pertain to courts of chancery, and which may be necessary to the attainment of justice. It is not perceived in what respect decrees for alimony are different from other decrees for the payment of money. Imprisonment for non-compliance therewith, unless wilful, or unless upon a refusal of defendant upon proper demands made to deliver up his estate in satisfaction of the decree, is within the inbibition of the Constitution against imprisonment for debt.

The case at bar comes within the rule declared. It appears from the affidavit in the record defendant's refusal to comply with the decree of the court was not wilful, but resulted solely from his pecuniary inability, and that, under our former decisions, was sufficient to entitle him to be discharged from arrest. Detailed statements of defendant's financial condition were given, from which it appears he had no means and no income from which he could discharge the decree. This condition was not the result of any fraudulent conduct on his part, but was produced by misfortunes in commercial transactions. There is nothing in the record that disproves or even contradicts defendant's account of his financial condition. It must therefore be regarded as a fair and candid 'exposition of his monetary affairs. Defendant discloses that he has real estate and perhaps personal property, but it is all heavily incumbered. A full exhibit of all his property, real and personal, is made, that it may be subjected to the payment of alimony under the decree, in any manner known to the law or consistent with the practice in the court. This is all he can do, and having offered to surrender his property, such as he has, he is entitled to be discharged from arrest.

The judgment will be reversed and the cause remanded, with direction to the court to enter an order discharging defendant.

NOTES OF NEW BOOKS.

Cases DETERMINED IN THE CIRCUIT COURTS OF THE UNITED STATES FOR THE Fifth Circuit. Reported by Wm. B. Woods, the Circuit Judge. Vol. II. Chicago: Callaghan & Co. The second volume of Judge Woods' series fully sustains the high character of the first. The cases are in almost every instance of substantial value, and are reported with conscientious care. The learned reporter has brought to the execution of his work the same industry and ability that have characterized a large proportion of his opinions. There is every evidence of care, and much that tends to give the volume individuality. It is a thoroughly good book.

Of the subjects discussed, Equity Practice in the Federal Courts, Railway and Municipal Bonds, Railway Mortgages, Receivers, Admiralty, and Bankruptcy have received especial attention. The volume embraces one hundred and twenty cases, with a Table of Cases Cited. There is, perhaps, no series of federal reports that commends itself more highly to the profession than that of Judge Woods.

A TREATISE ON THE LAW OF FIXTURES. By Marshall D. Ewell. Chicago : Callaghan & Co. The above purports to be a comprehensive treatise upon the Law of Fixtures.

« PreviousContinue »