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THE AMERICAN LAW TIMES.

NEW SERIES.-FEBRUARY, 1874.- VOL. I., No. 2.

DIGEST OF CASES

PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERIODICALS.

AGREEMENT TO REFER.

NOT REVOCABLE AFTER CASE WELL ADVANCED. - An agreement to refer to arbitrators, by which important rights are gained and lost reciprocally, and which is not merely a naked power to refer, is not revocable after the referees have gone far into the case. Paist v. Caldwell, Legal Gazette, February 6, 1874.

ARBITRATION AND AWARD.

1. THE PARTIES BY WRITING HAVING AGREED TO REFER all matters in controversy in a pending suit to arbitrators," without the right to appeal, file exceptions, or take out a writ of error," the court refused to disturb the award. Shisler v. Keavy, Legal Gazette, February 6, 1874; Legal Chronicle, February 7, 1874.

2. AN AWARD OF ARBITRATORS THAT EXCEEDS THE SUM CLAIMED in the several counts of the narr, but is not greater than the amount of damages claimed, will not be disturbed. Graham v. Walker, Legal Chronicle, February 14, 1874.

3. THE COURT OF COMMON PLEAS has no power to reform, remodel, or alter an award of arbitrators which has become an absolute judgment of record. Ib.

ATTORNEY.

See JUDGMENT; PARTNERSHIP, 1.

BANKRUPTCY.

1. USURY. POSITION OF CREDITOR. - A creditor offering to prove a debt against a bankrupt estate stands in the position of a plaintiff at law, and in Illinois, if his debt is usurious, forfeits the whole interest.

The assignee can take advantage of usury, and the defence is good so long as any part of the principal debt remains unpaid. In re Prescott, Chicago Legal News, January 31, 1874.

2. SET-OFF.- - MUTUAL DEBTS AND CREDITS. CONSTRUCTION OF SECTION 20.— INSURANCE. — Plaintiff borrowed money of an insurance company, but before the time of payment the company became insolvent, and a decree of bankruptcy was entered against it. Held, that under the twenVOL. I.

2

Vol. I.]

DIGEST OF CASES.

[No. 2. tieth section of the bankrupt law he can set off, as against this debt, claims for the amounts due on policies of insurance issued to him by the company, although this would give him a preference over the other creditors; that this was a case of mutual debt and credit within the meaning of this section; that in this case the money loaned not being due at the time the bill was filed, it is competent for the plaintiff to call upon a court of equity to allow a set-off. Drake v. Rollo, Ins. Law Journal, December, 1873.

BOND.

OF PHYSICIAN NOT TO PRACTISE, WITH PENALTY. - A bond conditioned that the defendant, a physician, should not practise medicine within five miles of the village of Skippackville, does not operate as a liquidation of damages for a breach of its condition, but as a penalty designed to cover any damages the plaintiff might suffer by the defendant's breach of the bond, in practising within the prescribed limits. Bigony v. Tyson, Legal Gazette, February 6, 1874.

See TREASURER.

CERTIORARI.

LACHES IN APPLICATION FOR. - A certiorari must be applied for within a reasonable time. Laches of the defendant will deprive him of the benefit of any exception to the proceedings had before a justice of the peace. Scheafer v. Smith, Legal Chronicle, February 14, 1874.

CONSTITUTIONAL LAW.

REGULATION OF COMMERCE BETWEEN THE STATES. - An act of a state legislature, as follows: "In the month of September, annually, each railroad company shall fix its rates of fare for passengers and freight, for transportation of timber, wood, and coal per ton, cord, or thousand feet, per mile; also, its fare and freight per mile for transporting merchandise and articles of the first, second, third, and fourth grades of freight; and on the first day of October following shall put up at all stations and depots on its road a printed copy of such fare and freight, and cause a copy to remain posted during the year, For wilfully neglecting so to do, or for receiving higher rates of fare or freight than those posted, the company shall forfeit not less than one hundred dollars, nor more than two hundred dollars to any person injured thereby and suing therefor," is not invalid as being beyond the power of the State to control commerce.

The above section is not in conflict with the Constitution of the United States, art. 1, sec. 8, which gives to Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;" it is merely a police regulation, and as such clearly within the control of the state legislature.

Semble, if the above section was a regulation of commerce, it would in the light of the authorities, of reason and of principle, be valid until superseded by the paramount action of Congress. The case of Fuller v. The Chicago & Northwestern Railway Co. 21 Iowa, 187, approved and affirmed; Chicago & N. W. R. R. Co. v. Fuller, Western Jurist, February,

Vol. I.]

DIGEST OF CASES.

[No. 2.

CONTRACT.

1. CONSTRUCTION OF CONTRACT TO PAVE. PREVENTION OF COMPLETION OF CONTRACT BY LEGISLATIVE ACTION. — - A city ordinance authorized the paving of Beckett Street from Woodland Street to 43d Street, and the city made a contract with the plaintiffs, for paving the street between those two points. The plaintiffs were prevented from paving the whole distance by an act of Assembly, which prohibited the opening of streets through Hamilton Park. The work was done by the plaintiffs under the supervision of the commissioner of highways, and was approved by him. Held, that the plaintiffs having paved the street as far as they were permitted by law to pave, were entitled to recover from the property owner for the portion of the work with which he was chargeable.

A selection of the paver made by the property owners is not vitiated by the fact that it was made before the passage of the ordinance authorizing the paving, if it was allowed to remain in full force, unrevoked and unobjected to, and the work was allowed to proceed without objection. Other points relative to contracts for paving public streets. Phila. v. Fell, Legal Intelligencer, February 13, 1874.

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2. NOT TO PRACTISE "IN THE NEIGHBORHOOD." Before a covenant not to practise medicine "in the neighborhood can be enforced in equity, evidence must be given to show the extent of the practice sold to plaintiff. McNutt v. McEwen, Ib.

A. desiring to

3. BY LETTER. — IMPLICATION OF LAW AS TO DEED. sell, and P. to buy certain tracts of land belonging to A., entered into a correspondence by letters and telegrams, in which the lands and the prices were sufficiently described. Held, that the correspondence contained all the requisites of a valid contract of sale.

Where the parties agree, the one to sell and the other to purchase land at a price mentioned, the law implies that a deed will be executed and the money paid in a reasonable time. Polhemus v. Ashley, Pac. Law Reporter, January 20, 1874.

DAMAGES.

1. BY CONSTRUCTION OF RAILROAD. — In estimating damages caused construction of a railroad, the general selling price of lands in the neighborhood is to be taken as a standard. Hays v. Briggs, Pittsburg Leg. Jour., February 4, 1874.

2. IN ACTIONS FOR LIBEL, the question of damages is for the jury, and the court cannot assume, as a matter of law, that the plaintiff is entitled to only nominal damages. Lick v. Owen, Pac. Law Reporter, January 20, 1874.

See BOND.

DEED.

See CONTRACT, 3.

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DIGEST OF CASES.

[No. 2.

GIFT.

DELIVERY ESSENTIAL TO VALIDITY OF. The decedent executed an assignment, sealed it up in an envelope, and placed it in the fire-proof of the firm of which he was a member. Upon the outside of the envelope, he wrote the name of the assignee, adding, " Please send this to him on my death." After his death it was found in the fire-proof. Held, not to be a gift, or to create a trust in favor of the assignee, as there had been no delivery. Taylor's Appeal, Legal Gazette, February 13, 1874.

GUARDIAN.

POWERS OF. A guardian is but a representative of his ward, and has no greater power in the disposition of the property of his ward than the latter would have if laboring under no disability. Flege v. Garvey, Pac. Law Reporter, February 3, 1874.

HOW ALIENATED.

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HOMESTEAD.

The estate held by a husband or wife in a homestead cannot be alienated by the voluntary act of either or both of the parties, except in conformity to the statute in force at the time. Flege v. Garvey, Pac. Law Reporter, February 3, 1874.

HUSBAND AND WIFE.

Held,

1. WIFE'S REAL ESTATE. JUDGMENT AGAINST HUSBAND. - The plaintiff purchased at public sale certain real estate owned by a married woman, and made a deposit upon account of the purchase. Ascertaining afterwards that there were numerous judgments against the husband, he rescinded the contract and sued to recover the money deposited. that the facts showing that the property was purchased by the owner out of her own means, the plaintiff was not entitled to recover. Schlessinger v. Ellis, Legal Gazette, February 6, 1874; Legal Int., February 6, 1874. 2. INSURANCE. - A husband has an insurable interest in the buildings on a wife's real estate. Am. Cen. Ins. Co. v. McLanathan, Ins. Law Journal, December, 1873.

See HOMESTEAD.

INJUNCTION.

LICENSE TO PERFORM PARTICULAR ACT. An injunction to restrain defendant from removing surplus soil, &c., from land, was refused where it was shown that a license to make such removal had been granted to defendant, and he had expended money on the faith of the license. Davis v. Souder, Legal Gazette, February 13, 1874; Legal Intel., February 13, 1874.

INSURANCE.

1. AGENT. KNOWLEDGE OF BINDS PRINCIPAL. — Held, that an agent authorized to issue policies of insurance and consummate the contract binds the principal by any act, agreement, representation, or waiver, within the ordinary scope or limit of insurance business, which is not

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[No. 2.

known by the assured to be beyond the authority granted to the agent. Am. Cent. Ins. Co. v. McLanathan, Ins. Law Journal, December, 1873. 2. APPLICATION. OPINION OF EITHER PARTY.— Held, that the opinion of the president of the company as to the truthfulness of certain statements made in the application, or what he would have done under certain circumstances, had no bearing on the case, and was properly rejected. Held, that it is a question of law for the court, and not to be settled by either party, how far false statements in the application affect the validity of the contract. Wash. Life Ins. Co. v. Haney, Ib.

3. ASSESSMENT. PREMIUM NOTES AS CONSIDERATION. STATUTE

LIABILITY NOT TO BE ASSESSED TILL PREMIUM NOTES EXHAUSTED.

Held, that premium notes in a mutual fire insurance company are a part of the contract price, or consideration of the insurance, and constitute a reserved fund or investment of the capital of the corporation. Held, that the application of such an assessment as between the members themselves, must be determined by the character of the liability, which is subject to the assessment. Held, that the statute liability, outside of the deposit note, is not properly of the corporation, but is rather an indemnity imposed by law upon the members. Held, that under the general statutes, c. 58, §§ 48-54, the deposit notes should first be exhausted before resorting to the further liability imposed by law on the policy holders. Commonwealth v. Mon. Mut. Fire Ins. Co. Ib.

4. DAMAGES. REFUSAL TO REBUILD. Plaintiff in error gave notice that it would repair the building injured by fire, but neglected to do so for upward of a month, when it had suffered additional injury by being exposed to the weather. Held, that defendant in error is entitled to recover for the damages incident to this delay. American Central Ins. Co. v. McLanathan, Ib.

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5. DESCRIPTION OF PREMISES. ERROR IN. The property of the defendant in error, insured by plaintiff in error, was described as situated on the corner of Second and Vine streets. As a matter of fact, the property, as was well known to the agent, was situated on the corner of Second and Elm streets, and the mistake was made by the agent in writing the policy. Held, that the contract was not void for uncertainty, nor is there any need of applying for a reformation of the contract, provided it appears from the face of the instrument or extrinsic facts which is the true and which the false description. Ib.

6. EXPIRATION OF POLICY. - One condition of a policy of life insurance was, that "within each calendar month the insured shall also pay as a mortuary assessment, the further sum of two dollars," &c. It was further provided that a non-performance of any of the conditions of the policy nullified the contract of insurance and worked a forfeiture of any claim on the part of the insured against the insurer. On one of its customary printed blank forms of receipts and notices of mortuary assessments, the insurer, April 13, 1872, gave its receipt for an assessment for March 1872, and, annexed thereto, this notice of the assessment for April: "Mortuary Assessment No. 30 will be due and payable on or before the 1st day of May, 1872." Without that assessment having been paid, the insured died on the night of May 1st, 1872, before midnight. Held, that the policy continued until midnight of May 1st, and the insurer was liable. Och

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