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the first section of the statute. Applying these prin- of the defendant to kill Lawrence is apparent, ciples to the case under consideration, should the and a circumstance, which of itself is conclusive court have instructed as to murder in the second that the killing was not done under the influence degree? If the killing was deliberately done, it was of uncontrollable passion, is the character of the murder in the first degree. In every homicide, blow given by him on the cheek of Lawrence. however great the provocation may be, if there be Why was such a blow given? One in a towering sufficient time for passion to subside, and reason passion, such as will mitigate a homicide, does to interpose, it will be murder in the first degree. not measure the force of his blows. Wieners was “The law assigns no limits within which the cool- a powerful, and Lawrence a very diminutive man. ing time may be said to take place—every case With his fist he could have felled him; and the must depend on its own circumstances.” A pur- manner in which that blow was given, in the light pose to kill may be conceived and deliberately of what afterwards occurred, evidenced a purexecuted, although but a very brief time elapse pose, on the part of the defendant, to provoke between the conception and the execution of the Lawrence to some act of aggression and then take purpose. Deliberation does not mean brooded his life, as announced by previous threats. When over, considered, reflected upon for a week, a day he struck Lawrence, the latter had a right to deor an hour, but it means an intent to kill, executed fend himself. And the exercise of that right by the party not under the influence of a violent could afford defendant no excuse for killing him. passion, suddenly aroused, amounting to a tempo- So determined was he to take the life of Lawrary dethronement of reason, but in the further- rence that, while his right hand in which he had a ance of a formed design, to gratify a feeling of pistol was held by Litsch so that he could not use revenge, or to accomplish some other unlawful it, with his left hand he fired the fatal shot over purpose. It is no easy matter to draw the line of the shoulder of Litsch, who stood between him distinction betwixt premeditation and delibera- and Lawrence. tion. It is more easily conceived than expressed. We have carefully examined the record to find Instances are more satisfactory than definitions. evidence tending to mitigate the offense of which
The facts, as disclosed by the testimony here, the defendant was guilty, but have failed to disare, that prior to the 29th day of January, 1877, cover a circumstance to indicate that it was other the defendant and the deceased were on friendly than a deliberate murder. That he intended to terms; that about 11 o'clock on the night of that kill; that there was no excuse or justification for day they quarrelled in a saloon, in which deceased the killing; that the provocation was slight, and was a bar-tender, but what was the occasion of that the deceased explained and apologized for it, that quarrel does not appear. Between 12 and 1 were clearly proved, and we should have to disreo'clock the principal bar-tender of the saloon ad- gard all the authorities to hold that it was a joining the Theatre Comique, in St. Louis, sent proper case for an instruction in regard to murder the deceased, who was his assistant, up-stairs to of the second, or manslaughter in any degree. call Wieners down; Wieners was a private watch- There was nothing in the alleged misconduct of man, employed at that theatre. The evidence the prosecuting attorney in interviewing the de. does not show what occurred between Wieners fendant's witness, or in the remarks to the jury in and Lawrence up-stairs, but Lawrence returned his argument that the murder was committed, to to the saloon, followed by Wieners, who appeared justify a reversal of the judgment. On these to be angry. They quarrelled; each applied to points the observations of the court of appeals in the other opprobrious epithets. Wieners drew a its opinion are apposite, and we adopt them as pistol, and, cursing the deceased, threatened to very clearly expressing our views. So of the exkill him, but he was seized by a bystander and in- hibition to the jury of the bones of the vertebral duced to put back his pistol, and agreed to go column of the deceased. It served to show to the home. The altercation continued and Wieners jury the attitudes and relative positions of the parstruck Lawrence a blow on the cheek-one wit- ties when the shot was fired. It was not an unness says with his open hand-another that it was necessary parade of the bones of the dead man to with his fist, but whether with his open hand or fist, excite prejudice against his slayer, but was legitiit did not fell or stagger Lawrence, and was evi- mate and proper evidence, and a party can not, dently a very slight blow. Lawrence reached upon the ground that it may harrow up feelings down under the counter and brought up in his of indignation against him in the breasts of the hand a soda-water bottle, and was in the act of jury, have competent evidence excluded from their throwing it at Wieners when the latter, who had consideration. drawn two pistols, holding one in each hand, shot We are all agreed that the judgment should be, Lawrence with the pistol he held in his left band, and it is, accordingly, affirmed. being prevented from using the right by Litsch, who had hold of him. Soon after the parties
TENDER. commenced to quarrel, Lawrence told the defend- In the case of Story v. Krewson, 55 Ind. 401, the ant, in explanation of his going to call him down, court held that a “tender of the amount due upon that he did it in obedience to orders given by the a promissory note (payable in bank), secured by head bar-tender. The provocation given by de- à mortgage on real estate, made upon the condiceased was slight, and his explanation, which was, tion that said mortgage shall be released or canin effect, an apology, should have been accepted celled, is insufficient." The court say that the by defendant as satisfactory. The fixed purpose authorities are in conflict whether a good tender
held that a tender regularly and lawfully made discharges a lien, but not the debt. G. D.
can be made upon the condition that a non-negotiable note shall be surrendered; but, in the case of commercial paper, the authorities are uniform that a tender upon condition that the paper shall be surrendered is good, “because such paper might be put in circulation after payment, and innocent parties become liable.” The reasoning and the distinction are not sound. If the tender in satisfaction of commercial paper is made before maturity, the holder is not bound to accept it. If made at maturity, and the holder refuses to surrender the paper, this will not enable him to put it into circulation to the prejudice of innocent parties, because an endorsee of overdue paper takes it as dishonored, and subject to any defenses that could be successfully urged against non-negotiable paper. The court then say, a mortgage is a mere incident to a note; the payment of the note satisfies the mortgage; a party bound to pay money can not make the tender conditional upon the giving of a written receipt; and “ a demand to cancel a mortgage as a condition of tender, is not different in principle from demanding a receipt as a condition to the payment.
The cases are not parallel. Where a party offers to pay money upon an indebtedness not evidenced by a writing, there is some reason why the tender should not be conditional upon the giving of a receipt; but where the creditor holds a written evidence of the indebtedness he should not be permitted to demand payment except upon the condition that the evidence of indebtedness is surrendered; and the creditors could not go into court and demand payment without bringing into court such evidence of indebtedness and leaving it upon the files of the court for the protection of the debtor.
In the case before the court, the note and mortgage had been transferred to a third party. At that time there was no law in Indiana—as there is now-authorizing the recording of the assignment of a mortgage, and, therefore, the tender was not a good one, for the reason that the assignor of the mortgage could not release or cancel the mortgage upon the record, he not being a party to it in any way, as would appear from the record.
His release of the mortgage would apparently be the act of a stranger. But it is submitted, that if the tender had been made upon condition that the note and mortgage should be surrendered, the tender would have been good; and if followed up by bringing the money into court, would have carried costs and stopped the interest from the date of the tender,
The statute, up to the time this case was decided, simply required the mortgagee, or his lawful agent, to enter satisfaction of the mortgage when satisfied. The statute now authorizes the assignment of a mortgage to be recorded, and, of course, the assignee can enter satisfaction; and it would be strange if the holder of the mortgage can now demand payment and refuse to enter or acknowledge satisfaction of the same, and drive the mortgagor to an action in the courts to compel an entry of satisfaction.
In Easton v. Mitchell, 26 Mich. 500, the court
In noticing in one of the late numbers of the CENTRAL LAW JOURNAL the decision of the Supreme Court of Wisconsin in Bass v. Chicago & N. W. R. Co., you give a few sentences from the opinion of the Chief Justice, regarding his individuals view on the rale of punitive or exemplary damages. “I always regretted," Judge Ryan says, “that this court adopted the rule of punitory damages. It is difficult, in prin. ciple, to understand why, when the sufferer by a tort has been fully compensated for his suffering, he should recover anything more. And it is equally difficult to understand why, if the tortfeasor is to be punished by exemplary damages, they should go to the compensated sufferer, and not to the public in whose behalt he is punished.” I most fully concur in the regret of the learned Chief Justice.
The doctrine of allowing punitive damages rests, at least at the present time, on an unsound foundation. Eminent legal writers have long ago pronounced against it, and have contended that the rule is against the self-evident and undisputable truth which has become a legal maxim, that a plaintiff ought to recover no more damages than he has actually sustained. I the injury he suffered was accompanied by peculiar indignities, his compensation may, of course, be greater, but still he gets something for what he actually suffered. By looking back into legal history we may find, perhaps, an explanation for the adoption of the rule in question. Amongst our Teutonic ancestors the line between public and private wrongs was not distinctly marked; in fact, excepting, perhaps, high treason and kindred crimes, there was no line at all. Crimes against the person, eren homicide, were settled by the parties by way of composition, every hurt almost having its fixed tariff price. When that failed, the parties, or their relations, resorted to retaliation. The courts were nearly powerless to punish crime, while their jurisdiction in civil cases was generally respected. The state in those ancient times was weak, and the mode of trying crime, when courts undertook to do so, was exceedingly unsatisfactory. Hence, it is, as we presume, that courts, in civil cases, allow injured parties to recover damages not only for the actual injury, but enough more to punish the otfender severely in his pocket.
In the present state of our society, however, such kind of punishment is an anomaly. Every trespass is now, or may readily be made, an offense against the public, for which the guilty is made responsible to the community. The injured party ought not to be made the avenger of a public wrong. Originally, there was an excuse, perhaps a justification, for the doctrine of punitive damages. What was barely reasonable, however, a thousand years ago, has in the course of time become absurd. In the gross injustice its application causes in many cases, by allowing a man ten or twenty, or sometimes fifty-fold the amount of dan ages he has actually sustained, it has been an instrument of mischief, en. couraging a multitude of lawsuits of a speculative character. It has, in part, demoralized an honorable profession, by the prices held out to the litigious and unscrupulous, and their advocates in court, expecting to share in the promised confiscation of another man's property. Let the breaker of the public peace and the offender of the løws make bis fine to the state, the duty of wbich it is to protect, and which pays for the ad. ministration of Justice, but not to the injured person, who, when compensated liberally for his individual loss, has no further elaim on his opponent.
While the private judgment of the Chief Justice of Wisconsin is adverse to the giving of exemplary dam. ages, he nevertheless, in the case before him, concurs in the rule, and assigns as a reason that its having been established by his court some twenty years ago, it is now too late to overturn it. He thinks the legislature should abolish the rule by an enactment.
Now, no reason is perceived why the courts can not unmake a law which they, beyond question, once did make. The reason which I have assigned as probable for this judicial legislation has long ceased to exist; and the rule, like many others which have first been doubted, then shaken and finally overthrown by the courts, ought to be banished out of sight. Were it not that a not inconsiderable number of the legal practitioners may look upon the retention of this national doctrine as yielding them an ample harvest of lucrative fees, I would urge upon the ditferent Bar Associations of the country to agitate the question of undoing the precedents, or, after the advice of Judge Ryan, make an effort with the different state legislatures to confine damages in action for torts to compensation for the injury actually suffered. The very case of Bass v. Chicago & N. W. R. R. Co., where a gentleman was rudely and forcibly removed from a car usually reserved for ladies, by a brakeman, and wkere the company was by a jury made to pay $4,500, shows the iniquity of the principle.
NOTES OF RECENT DECISIONS.
MUNICIPAL COPORATIONS LIABILITY OF, FOR FLOODING CAUSED BY STREET IMPROVEMENTS.-Inman 0. Tripp. Supreme Court of Rhode Island, 17 Alb. L. J. 12. Opinion by DURFEE, C. J. Where a city, by the manner in which it grades a street, collects water from a wide area and empties it charged with the street filth upon plaintiff's adjoining land, and into his cellar and well, it is liable for the damage done plaintiff thereby.
INVALIDITY OF PASSIVE TRUST8.- Verdin v. Slocum. New York Court of Appeals, 17 Alb. L. J. 13. A will, devising lands to executors in trust, contained this: "I direct my said trustees to permit and suffer my son, W. B. S., to hare, receive and take the rents, issues and profits thereof, for the term of his natural life, and after his decease I give," etc. Held, that the son took a life estate in the lands upon which the lien of a judgment would attach, and a judgment creditor of the son was a necessary party to the foreclosure of a prior mortgage upon the lands.
FRAUDULENT REPRESENTATIONS — LIABILITY OF BANK FOR ACTS OF CASHIER-GUARANTY.-Hor. rigan 0. First Nat. Bk. Supreme Court of Tennessee. 10 Ch. L. N. 112. Opinion by FREEMAN, J.-Horrigan applied to Thatcher, the cashier of a bank, for information concerning the solvency of Toof, Phillips & Co.; Thatcher replied favorably as to their credit, and, upon this assurance, plaintiff, from time to time, purchased large amounts of the bills and acceptances of said firm. Eight months later, Toof, Phillips & Co. failed, and plaintiff lost $2,000 by bis investments; thereupon he brought suit against Thatcher and the bank for deceit. Held, an honest statement of a mere opinion, however erroneous as to the solvency or reliability of another, can not furnish the grounds for an action of this character. A party can not be held, in such a case, to have given a continuing guaranty against future contingencies, nor to have bound himself to notify the other of what he may well be assumed to be able to discover for himsell. 1 Metcf. p., 6; 13 Vesey, 133; Wynne & Co. v. Allen, MSS. 2. Answering questions as to the solvency of parties, is no part of the business of a cashier of a
bank, nor fairly included within the scope of such business. It may be, and probably is, an incident of such position, but not incident to it. Held, no liability attaches to the bank in such case. Barwick v. English Joint Stock Company, 2 Law Reports, 265; Swift v. Jewsbury, Law Reports, 1874, 314. 3. When the holder of paper has given credit to a third party upon the recommendation of a cashier of a bank, and the debtor is ready and offers to pay the note at maturity, and the holder instructs the cashier to give the debtor an extension of time, which the debtor acceptı, and then fails, the cashier, tbough he bad rendered himself liable by his recommendation, is discharged by the release of the holder.
RECOVERY OF MONEY PAID ON INCOMPLETE ILLEGAL CONTRACT.-Knowlton v. Congress and Empire Spring Company. United States Circuit Court, Northern District of New York. 17 Alb. L. J. 10. Opinion by WALLACE, J. 1. When payments are made upon an illegal contract, and the parties are in pari delicto, a recovery can be had as for money had and received, where the illegality is in the contract itself and that contract is not executed. In such case there is a locus pænitentiæ, the delictum is incomplete and the contract may be rescinded by either party. A corporation in which plaintiff was a stockholder and trustee illegally instituted proceedings to increase its stock, plaintiff participating in such proceedings and subscribing for stock. By the agreement of subscription it was provided that payments on the new stock should be made to the corporation as called for by the directors, and that, in case of failure to pay within sixty days, the party failing should forfeit all previous payments. Plaintiff paid the first call but failed to pay the second, and a forfeiture was declared against bim, but before any scrip was issued for any of the increased stock the project to increase the stock was abandoned. Held, in an action thereafter brought to recover the money paid on the first call, that the locus pænitentiæ was still open to plaintiff and he might recover. “This case comes here by removal from the state court after a decision adverse to the plaintiff by the Commission of Appeals, reversing the judgment of the Supreme Court in favor of plaintiff, and ordering a new trial. 57 N. Y. 518.
In deciding the present case, the Commission of Appeals (Dwight, Commissioner, dissenting) have held that money paid by one party in part performance of an illegal transaction, can not be recov. ered back where both parties are in pari delicto, and that no distinction exists as to the right of recovery between cases of partial and of entire performance. Notwithstanding the great respect which I entertain for the authority of the Commission of Appeals, I am constrained to differ from the conclusion thus reached, and must hold, in the language adopted by Mr. Justice Bradley (Thomas v. City of Richmond, 12 Wall. 355): A recovery can be bad as for money had and received, where the illegality consists in the contract itself and that contract is not executed; in such case there is a locus pænitentice, the delictum is incomplete and the contract may be rescinded by either party. This statement of the law finds support in the early case of Walker v. Chapman, Lofft. 342, where the plaintiff had paid money to procure a place in the customs, but which he did not get, and brought suit to recover back the payment, and Lord Mansfield decided in his favor; and upon the authority of this case, in the subsequent case of Lowrey v. Bourdiew, Doug, 468, which was an action to recover a premium paid upon an insurance which was merely a gaming contract, but was brought after the event had bappened upon which the insurance was to be paid, Buller, J., said: “There is a sound distinction between contracts executed and executory,' and the plaintiff was defeated because the agreement was not executory. In Tappenden v. Randall, 2 Bos. & P. 466, an action was maintained to recover a pay. ment upon an illegal contract, Heath, J., after adverting to the distinction between executed and executory contracts, stated by Justice Buller, saying: 'I think there ought to be a locus pænitentice, and that a party should not be compelled to adhere to his contract.' In Hazelton v. Jackson, 8 B. & C. 221, Littledale, J., says: If two parties enter into an illegal contract and money is paid upon it by one to the other, that may be recovered back before the execution of the contract, but not afterward,' and a recovery was allowed on this ground. Other cases which proceeded upon this same rule are, Aubert v. Walsh, 4 Taunt. 276; Bush v. Place, id. 291; Bone v. Eckless, 1 Hurlst. & Norm. (Exch.) 925. The bame doctrine has been recognized by our own courts. White v. Franklin Bank, 22 Pick. 184; Nellis v. Clark, -4 Hill, 424; Morgan v. Groff, 4 Barb. 526. And in the latest English case, Taylor v. Bowers, 34 L. T. Rep. (N. S.) 938, decided in the Court of Appeal in 1876, the plaintiff was permitted to recover property transferred to defraud creditors, where the scheme was not fully .carried out, Mellish. L. J., saying: 'If money is paid for goods delivered for an illegal purpose, and that purpose is afterward abandoned and repudiated, I think the person paying the money or delivering the goods may recover; but if he waits until the illegal transaction is carried out, or seeks to enforce it, he cannot maintain his action.' In opposition to these authorities there is not a single case, of which I am aware, sustaining the conclusion of the Commission of Appeals. The cases cited in support of that conclusion, in the opinion of Lott, Chief Commissioner, are: Perkins v. Savage, 15 Wend. 412; Bell, ex parte, 1 M. & S. 751; Howson v. Hancock, 8 Term, 575; Bush v. Place, 6 Cow. 431, and Saratogo County Bank v. King, 44 N. Y. 92. In none of these cases did the question arise whether the plaintiff could succeed in an action in disaffirmance of an unexecuted illegal contract. In conclusion, I concur in the dissenting opinion of Dwight, Comm'r, that the rule is well stated in 2 - Comyn on Cont. 109; if the contract continues executory and the party paying the money be desirous of rescinding it, he may do so and recover back his deposit.' A different rule would hold out an inducement to parties to an illegal transaction to persevere in their efforts to violate the law."
tors, are citizens of the State of New York.” Clearly this is not sufhcient. Where the jurisdiction of the courts of the United States depends upon the citizenship of the parties it has reference to the parties as persons. A petition for removal must, therefore, state the personal citizenship of the parties and not their official citizenship, if there can be such a thing. From the language here employed the court may properly infer that as persons the plaintiffs in error were pot citizens of New York. For all that appears they may have been citizens of New Jersey, as was the defendant. Holding, as we do, that a state court is not bound to surrender its jurisdiction upon a petition for removal until at least a petition is filed which upon its face shows the right of the petitioner to the transfer, it was not error for the court to retain these causes. We need not, therefore, consider whether the act of 1867 limits the right of removal to the citizenship of the parties at the time of the commencement of the suit, or whether the state court had the right to call upon the defendants in error to show cause against the application.” Amory v. Amory. In error to the Superior Court of the State of New York. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.
FIRE INSURANCE-PRACTICEĻAMENDMENT—Loss OCCASIONED BY “INVASION, INSURRECTION," &c.1. The findings of fact by the United States courts belong as fully to the record as the verdicts of a jury, and no bill of exceptions is necessary to bring them upon the record. 2. The court bad power at a subsequent term, by an order, to correct the record by incor. porating into it, nunc pro tunc, a special finding of the facts upon which the judgment had been rendered, where it was but an amendment of form, and there was enough to amend by. 3. A policy provided that “the company shall not be liable to make good any loss or damage by fire, which may happen or take place by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power,” etc. The property was destroyed by a fire, which was started as the only available means of carrying out an order of the military commander of Glasgow, Mo., to destroy the military stores in the City Hall, in consequence of an attack by the rebel forces upon the city. The flames spread and were communicated through two or three intervening buildings. Held, that the proximate cause of the loss was an invasion, or military or usurped power, and the company was not liable. “The proxim. ate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling ageney, are not the proximate causes, and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster. A careful consideration of the authorities will vindicate this rule. Mr. Phillips, in his work on Insurance (sec. 1097), in speaking of a nisi prius case of a vessel burnt by the master and crew to prevent its falling into the hands of the enemy (Gordon v. Rimmington, 1 Camp. 123), says, the “maxim, causa proxima non remota specialur, affords no help in these cases, but is, in fact, fallacious; for if two causes conspire, and one must be chosen, the more scientific inquiry seems to be, whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearest in place or time to the consummation of the catastrophe." And again, in section 1132: “In case of the concurrence of different causes, to one of which it is necessary to at. tribute the loss, it is to be attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster." Iu Brady v. Northwestern Ins. Co.,11 Mich.425, Martin, C. J., in delivering the opinion of the court, said: “That which
DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.
October Term, 1877. REMOVAL OF CAUSES-REQUISITES OF PETITION.– A petition for the removal of a cause from a state to a Federal court, under the act of 1789, must expressly state that the parties were citizens of the respective states at the time the suit was commenced. Phænix Ins. Co.v. Pechner. Iu error to the Court of Appeals of the State of New York. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.
REMOVAL OF CAUSES-REQUISITES OF PETITION.1. A state court is not bound to surrender its jurisdiction upon a petition for removal until at least a petition is filed which, upon its face, shows the right of the petitioner to transfer it. 2. Under the act of 1867, the petition for removal must state the personal citizenship of the parties and not their official citizenship. “These cases are substantially disposed of by the decision in Phænix Ins. Co. v. Pechner, just announced. They earh present the question of the sufficiency of a petition for a removal under the act of 1867. 14 Stat. 558. The suits were in New York by the defendants in error, as executors, against the plaintiff in error, a citizen of New Jersey. The petition for removal sot forth sufficiently the citizenship of the plaintiff in error, but as to defendants in error, the alle. gations are “ that said plaintiffs, as such execu
ABSTRACT OF DECISIONS OF THE COURT
OF APPEALS OF KENTUCKY.
September Term, 1877.
[To appear in 13th Bush.)
is the actual cause of the loss, whether operating directly or by putting intervening agencies (the operation of which could not be reasonably avoided) in motion, by which the loss is produced, is the cause to which such loss should be attributed." In St. John v. Amer. ican Mutual Ins. Co., 1 Kernan, 519, the insurance was against fire, but the policy exempted the insurers from any loss occasioned by the explosion of a steam-boiler. A fire occurred, caused by an explosion,which destroyed the insured property. The court, regarding the explosion, and not the fire, as the predominating cause of the loss, held the insurers not liable. Decisions are numerous to the same effect. Policies of insurance do not protect an assured against bis voluntary destruction of the thing insured. Yet in Gordon v. Rimmington, supra, it was held that, when the captain of a ship insured against fire burned her to prevent her falling into the hands of the enemy, it was a loss by fire within the meaning of the policy. It was because the fire was caused by the public enemy. The act of the captain was the nearest cause in time, but the danger of capture by the public enemy was regarded as the dominating cause. Vide, also, Emerigon, tom. 1, p. 434. And we find the same principle followed in common practice. Often, in case of a fire, much of the destruction is caused by water applied in efforts to extinguish the flames, Yet it is not doubted that destruction is caused by the fire, and insurers against fire are held liable for it. In Lynd v. Tynsboro, 11 Cusb. 563, where it appeared that a traveler had been injured by leaping from his carriage, exercising ordinary care and prudence, in consequence of a near approach to a defect in a highway, the town was held liable, though the carriage did not come to the defect. The defect was regarded as the actual, the dominating, cause. And in this court similar doctrine has been asserted. Insurance Company v. Tweed, 7 Wall. 44, the principle of which case, we think, should rule the present. There it was, in effect, ruled that the efficient cause, the one that sets others in motion, is the cause to which the loss is to be attributed, though the other causes may follow it and operate more immediately in producing the disaster. In Butler v. Wildman, 3 B. & Ald, 398, may be found a case where the captain of a Spanish ship, in order to prevent a quantity of Spanish dollars from falling into the hands of an enemy by whom he was about to be attacked, threw them into the sea. The suit was upon a policy insuring the dollars, and judgment was given for the plaintiff. Bayley, J., said: “It was the duty of the master to prevent anything which could strengthen the hands of the enemy from falling into their possession. Now, as money would strengthen the enemy, it was the duty of the master to throw it overboard, and the sacrifice of the money was, therefore, ex justa causa. It seems to me, therefore, this is a loss by jettison. But it is not a loss by Jettison, it is a loss by enemies. It clearly falls within the principle stated by Emerigon, in the case of the destruction of a ship by fire, and I think the enemy was the proximate cause of the loss.” Holroyd, J., said: “It seemed to him it was a loss by enemies, for the meditated attack was the direct cause of the loss." A similar doctrine was asserted in Barton v. Home Ins. Co., 42 Mo. 156, and in Marcy v. Merchants Mutual Ins. Co., 19 La. An. 388; see, also, Milwaukee R. R. v. Kellogg, 94 U. S. 475. Ætna Ins. Co. v. Boon. In error to the United States Circuit Court for the District of Connecticut. Opinion by Mr. Justice STRONG. Judgment reversed.
PARTITION-VENDEE OF ONE-FOURTI INTEREST IN LAND-LIEN.-1. A vendee of one-fourth interest in a tract of land may partition with the owners of the other three-fourths, notwithstanding his vendor retained a lien for the purchase-money on the fourth interest conveyed to him. 2. The vendor of an undivided fourth interest in a tract of land, after his vendee has made partition with the owners of the other three-fourths, can not assert his lien for the purchase-money on an undivided fourth of the whole, but must assert it on the one-fourth allotted to his vendee. Opinion by PRYOR., J. Affirmed.-Hall 0. Morris, Southwick & Co.
1. WHEN A STATUTE HAS CREATED A NEW RIGHT, and has also prescribed a remedy for the enjoyment of the right, he who claims the right must pursue the statute remedy. 2. A turnpike road company must collect its tolls at its gates, and in the manner prescribed by its charter-by stopping any person riding, driving, etc., from passing through its gates until they shall have paid the toll-and can not reconer such toll by suit, unless an agreement is alleged and proven, upon which a common-law action may be maintained. The Jaw will not imply a promise to pay tolls from the mere use of a turnpike road. Opinion by PRYOR, J. Revesed.-Russell, etc., 0. Muldraughs Hill, Campbellsville and Columbia Turnpike Road Co.
EVIDENCE-ENTRIES IN BANK BOOKS.-1. A correct judgment must be affirmed, although erroneously made to rest upon a different ground by the lower court. 2. Entries in the books of a bank, made by disinterested third persons, must be proved by the persons making them, unless they have died or ab. sconded; and then the entries themselves must be proved, when the books can not be produced to the court. It is not sufficient to prove, as was done in this case, the mere conclusions of witnesses as to their substance and effect. 3. The contents of the books of third persons, and especially of bank books, which bave been regularly kept, are, when properly proved, admitted as evidence as matter of necessity, and may be used in case of the death or absconding of the person by whom they were kept. Bunker v. Shea, 8 Met. (Mass.) 150; Bowker v. Hast, 18 Pick. 555. But the entry itself, or an exact copy thereof, must be presented to the court, and, with the exceptions just named, the witness must identify it as having been made by himself, and, though he need not recollect the specific transaction, he must be able to state that he would not have made the entry if the transaction had not taken place. 18 Pick. 561. Opinion by LINDSAY, C. J. Affirmed.-Poor v. Robinson.
BIGAMY--REQUISITES OF INDICTMENT-EVIDENCE. -1. Indictment for bigamy should aver specificially the time and place of the first marriage, and set out the name of the first husband or wife. 2 Bishop's Crim. Pro., p. 881; 2 Archibald on Crim. Pl. and Prac., p. 1024; Criminal Code, 1877, secs. 122, 124. Commonwealth v. Whaley, 6 Bush. 266. overruled. 2. When the words of a statute are descriptive of the offense, the indictment will be sufficient if it follows the language of the statute and expressly charges the commission of the described offense. But this rule applies only to offenses wbich are complete in themselves when the acts set out in the statute have been done or performed, which is not the case as to the
An English judge a short time ago stated from the bench that there is ten times more perjury committed by women in bis court than by men, and he added that women do not seem to care in the least what they swear to.