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Vol. IV.)

DIGEST OF CASES.

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and the lot conveyed to D., together with a tenement in the house, and to S. the rest of the homestead estate. For a long period, but not for the time required to gain an easement by prescription,

all the occupants of the homestead estate had crossed the land between the homestead and D.'s lot on their way to the well. In trespass quare clausum brought by the grantees of J. against S., held, that the way across J.'s lot could not be claimed as a way of strict necessity. Held, further, that the way could not be implied from the circumstances of the case as one reasonably necessary. O’Rorke v. Smith, S. C. R. I., Am. Law Reg., April, 1877.

EVIDENCE. WIDOW. - IN A SUIT RESPECTING A DECEDENT'S ESTATE his widow may testify as to any matters her knowledge of which was not acquired in à confidential relation as the wife of decedent. Conrad v. Conrad, S. C. Pa., W. N. C., May 3, 1877.

See INSURANCE, 2, 3.

HUSBAND AND WIFE.
See EVIDENCE; MARRIAGE.

INFANT.

See NEGLIGENCE, 3.

INSURANCE. 1. ASSIGNMENT OF POLICY. A person cannot purchase and take an assignment to himself, for his own benefit, a policy of life insurance so as to vest the title in himself, unless he has an insurable interest in the insured. But after the death of the insured the policy may be assigned. Franklin Life Ins. Co. v. Cone, S. C. Ind., Ins. L. J., February, 1877.

2. IT IS IMPROPER TO ADMIT IN EVIDENCE THE LETTERS OF THE COMPANY'S SECRETARY to the widow of deceased, tending to show that the company was not liable, and had waived a forfeiture, without first showing that the adjustment of losses was within the scope of his authority, or that his letters had been ratified by the company. Ib.

3. REFORMATION OF POLICY. EVIDENCE. PLEADING MISDESCRIPTION, ETC. -- The phrase in a policy, “occupied as a dwelling,” is ordinarily a warranty that the building is, at the time of issuing the policy, occupied in that way only. The words having a fixed legal construction, the insured cannot in an action at law vary their purport by parol evidence. But parol evidence tending to show that the insured sought to have the phrase corrected to correspond with the facts, and was dissuaded by the insurer, may be admitted to estop the insurer from alleging the misdescription as a bar to recovery. Such evidence may also be received if it tends to make a case in equity for a reformation of the policy. Where the pleading contains no specific allegation of a mistake of fact, but avers that which shows that the parties were mistaken as to the effect of the language they used : Held, that this is sufficient averment of matter upon which a reformation of the contract may be based. Evidence showing

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that the insurer and insured meant to insure the building that was burned, but by a misconception as to the meaning and effect of the language used terms in the policy which misdescribed it, and exonerated the company from legal liability, makes a proper case for reformation of the contract. An action may be brought for reformation of the contract, and for a recovery at the same time upon the contract when reformed, and it is not irregular to try such action before a judge and jury. The insured asserted, and swore in the preliminary proof, that the building was occupied as a dwelling only, which was not true. The policy provided that any fraud or false swearing should forfeit all claims under it. Held, where the occupation was given in the same form of words as in the policy, where it was à misdescription through mutual mistake, authorizing a reformation of the contract, that there was not fraud or false swearing within the meaning of the policy. Such proofs are sufficient compliance. Maher v. Hibernia Ins. Co., Ct. App. N. Y.,

Ib. 4. OMISSION TO GIVE INFORMATION A QUESTION FOR THE JURY.Where the evidence, taken in connection with the answers, left it a fair question for the jury whether the insured could be charged with an omission to give information, which constituted a fraudulent suppression of the truth and vitiated the policy, a refusal to allow the questions to be submitted to the jury was error calling for reversal of judgment. Edington V. Mut. Life Ins. Co., Ib.

5. WARRANTY AND MISREPRESENTATION. KNOWLEDGE OF AGENT. - A misrepresentation in the absence of fraud must be in respect to some circumstance material to the risk in order to avoid the policy, while a warranty must be literally true, whether material or not; the materiality is not to be considered. Where the policy stipulated that if any of the statements or declarations in the application proved in any respect untrue, it should be void, and the applicant answered that he was aware that any untrue answers in the application would avoid the policy. Held, that the answer of the insured that he had never had certain diseases was a warranty, and a knowledge of its falsity by the agent would not relieve from the consequence of the breach. Barteau v. Phoenix Mut. Life Ins. Co., Ib.

6. WHETHER OR NOT A HOUSE IS “OCCUPIED,” is a question of fact for a jury. Mere temporary absence is not enough to avoid a policy which provides that it shall become void if the house becomes vacant. Cummins V. Agricultural Ins. Co., Ct. App., Ib.

JUDGMENT.

See SUBROGATION.

JURISDICTION.
See BANKRUPTCY, 1, 13.

LEASE.

COVENANT TO RENEW. EXECUTION WHERE RENTAL TO BE FIXED BY ARBITRATION. A lease of certain real property in St. Louis was made for ten years with a covenant by the lessor for periodical renewals

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extending through terms aggregating a period of 500 years ; the amount of the rental at the end of each ten years was to be ascertained by assessors to be appointed by the parties; the lessor fraudulently sought to evade the provisions of the lease in respect to renewal; the lessee, on the faith of the covenant for renewal, had expended in buildings on the demised premises $113,000; the lessor sued the lessee at law for use and occupation, whereupon the lessee filed this bill in equity to stay the action at law until the lessor appointed an assessor as required by the lease : Held, that a general demurrer to the bill should be disallowed; and the lessee being willing to comply with the lease as to renewal, the court entered an order staying the proceedings at law, until the lessor should appoint an impartial assessor to make the valuation, reserving the right to discharge or modify the order as justice might require. Tscheider v. Biddle, C. C. U. S. E. D. Mo., Cent. L. J., April 6, 1877.

MARRIAGE. 1. DOMICIL. — CONFLICT OF LAWS. — Although a marriage between a negro and a white person is allowed in South Carolina, and although such a marriage is there entered into according to the formalities of that law, yet if it be between parties then domiciled in North Carolina, who went into South Carolina to contract such a relation in evasion of the laws of North Carolina, which declare such a marriage void, it will be held void in the latter state. State v. Kennedy, S. C. N. C., Cent. L. J., April 27, 1877.

2. IBID. A marriage contracted in South Carolina.according to the forms of her laws and not prohibited by them, between a negro and a white person domiciled there, will be held valid in North Carolina when such persons remove into the latter state, notwithstanding that such a marriage is in terms declared void by a statute of North Carolina. State v. Ro88, Ib.

MORTGAGE. 1. MORTGAGE TO SECURE FUTURE ADVANCES. — RIGHTS OF SUBSEQUENT PURCHASER OR INCUMBRANCER. — 1. Where the mortgagee has bound himself to make advances or incur liabilities, such advances when made relate back, and the mortgage will be a valid lien against subsequent purchasers or incumbrancers with notice of the mortgage. 2. But where there is no obligation on the mortgagee and such advances are merely optional with him, and he has actual notice of a subsequent conveyance of the mortgaged premises before making such advances, his lien will not hold as against the subsequent purchaser. 3. A., B., and C., partners, mortgaged their partnership property to D., in consideration that he would subsequently indorse the paper of C. to the amount of $4,000; and afterwards C. sold his interest in the mortgaged property to A. and B., of which D. had notice at the time; and D. afterwards, in pursuance of the terms of the mortgage, indorsed C.'s paper to the amount specified which he was compelled to pay: Held, D. had a valid lien on the mortgaged premises to the extent of his loss. Brinkmeyer v. Browneller, S. C. Mo., Cent. L. J., April 20, 1877.

WHERE SUCH MORTGAGEE BY VIRTUE OF THE MORTGAGE OBTAINS

a

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ADDITIONAL SECURITY for an already existing liability, it is a valid and sufficient consideration for his promise to make such future indorsements, and it is not optional with him, but there is a legal obligation on him, to perform his agreement. 16.

See ATTORNEY; BANKRUPTCY, 8.

NEGLIGENCE. 1. THE KEEPING OF A VICIOUS DOG NEAR A PUBLIC HIGHWAY, endangering the safety of persons passing thereon, is a nuisance, operating as an obstruction, and renders the person knowingly keeping it there liable to an action by any person injured thereby. Such unmistakable evidence of a vicious propensity on the part of a dog may be shown by one instance of aggression as to make his owner, who had notice thereof, liable for any subsequent act of a similar character. And in such case it is not necessary that the previous act of aggression should be precisely similar to that on which the action against the owner is founded, if it indicated a disposition to commit injuries substantially like those which form the basis of the cause of action. In an action against the owner of a dog for an injury occasioned by its vicious act, it is not admissible for the owner to prove the general good behavior of the dog, unless there be a conflict of testimony in regard to the act of aggression, in which case the general conduct and habits of the dog may be considered in determining the credit to be given to the witnesses. Mann v. Wieam, S. C. Pa., W. N. C., May 3, 1877.

2. THE NEGLIGENCE OF A DRIVER OF A WAGON IN DRIVING WITH INSUFFICIENT HARNESS will not be imputed to a passenger riding in the wagon, and is no defence to an action for injuries to the passenger caused by the frightening of the horses through the negligence of the defendant. 10.

3. TRESPASS BY INFANT. — A., the owner of a private alley abutting on a public highway, bad constructed in it a movable platform twentyfour feet back from the street. At the entrance of the alley were gates, with the words thereon “ Private” and “ No admittance.” The platform weighed eight or nine hundred pounds, and worked upon a hinge projecting from the wall. When it was raised it rested against the wall, and was counterpoised simply by its own weight. On one occasion, the gates being open, B., a child of six years, went into the alley and pulled over the platform, thereby receiving injuries from which he died. In an action against A. by the parents of B.: Held, that the question of defendants' negligence was properly submitted to the jury to determine under all the circumstances of the case. Phila. Hydr. Works Co. v. Orr, S. C. Pa., Ib. April 26, 1877.

4. LIABILITY OF ONE WHO STORES WATER ON HIS OWN LAND. — ACT OF GOD. — One who stores water on his own land, and uses all reasonable care to keep it safely there, is not liable for damages effected by an escape of the water, if the escape be caused by the act of God, or vis major; e. g. by an extraordinary rainfall, which could not reasonably have been anticipated, although, if it had been anticipated, the effect might have been prevented. On the defendant's lands were ornamental pools containing large quantities of water. These pools had been formed by damming up with

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Vol. IV.]

Notes Of New Books.

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artificial banks a natural stream which rose above the defendant's land and flowed through it, and which was allowed to escape from the pools successively by weirs into its original course. An extraordinary rainfall caused the stream and the water in the pools to swell, so that the artificial banks were carried away by the pressure, and the water in the pools, being thus suddenly let loose, rushed down the course of the stream and injured the plaintiff's adjoining property. The plaintiff having brought an action against the defendant for damages, the jury found that there was no negligence in the maintenance or construction of the pools, and that the flood was so great that it could not reasonably have been anticipated; though, if it had been anticipated, the effect might have been prevented. Held, affirming the judgment of the court of exchequer, that this was in substance a finding that the escape of the water was caused by the act of God, or vis major, and that the defendant was not liable for the damage. Rylands v. Fletcher, Law Rep. 3 H. L. 330, distinguished. Nichols v. Marshland, Ct. App. Eng., Cent. L. J., April 6, 1877.

NOTES OF NEW BOOKS. Institutes of Common and Statule Law. By John B. MINOR. Second edition, revised and corrected. Sold by McKENNIE & Son, University of Virginia.

Professor Minor's Institutes may be fairly classed among the books of the law that are destined to last. It has been heretofore appreciated chiefly by those who have enjoyed the privilege of personal intercourse with the author. The present edition, however, will be large enough to supply the general demand.

The title of the work imports its nature. It is narrow only in that it treats of the Statutes of Virginia, and not of statute law generally. Barring this feature, it is in the broadest sense comprehensive. The work is to be commended to the old lawyer no less than the young, and merits a much larger sale than it will ever have.

The Law of Mines, Minerals, and Mining Water Rights. San Francisco : SUMNER WHITNEY & Co. This work, although hardly what it might have been in some respects, will be appreciated. It is confined narrowly to the subjects enumerated in its title.

A Commentary on the Law of Evidence in Civil Issues. By Francis Wharton, LL. D., author of Treatise on Conflict of Laws, Medical Jurisprudence, Negligence, Agency, and Criminal Law. In two volumes. Messrs. Kay & Brother, of Philadelphia, are prepared to fill orders.

Third Otto has been published. It would seem that the omission of arguments of counsel is not likely to materially reduce the number of volumes to a term.

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