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'the rule that an admitted or clearly established mis Louis, and employed by defendant in that capacity for apprehension of the law does not create a basis for the seven inonths, does not imply that there was a special interference of courts of equity, resting on discretion, contract for a year. The time for which he was bired, and to be exercise I only in the most unquestion : and the question of the power to discharge, are still ble and flagrant cases is certainly more in consonance open. And, where plaintiff was hired by a special with the best considered and best reasoned cases upon 1 agent with limited powers, the burden is on plainlift the point, both Englieh ard American.' The same to show the special contract, and the authority of the author suys: "We trust the principle, that cases may agent to make it. 2. The issue as to the authority of and do occur where courts of equity feel compelled to the special agent to employ general agents for a year grant relief, upon the mere ground of the misappre could not be affected by testimony as to a custom of hension of a clear rule of law, which has so long employing general agents of insurance companies. maintained its standing among the fundamental rules Evidence of a custom to employ such agents for one of equity jurisprudence, is yet destined to afford the year and more was erroneously admitted against the basis of many wise and just decrees, without infring. objections of defendant. 3. The construction of the ing the general rule that mistake of law is presumpt by-laws of a corporation is for the court, not for the svely no sufficient ground of equitabıle interference.' jury. 4. Evidence of a recognition of plaintiff by deIn the case under consideration the alleged mistake is sendant as its general agent did not tend to prove that proven to the entire satisfaction of the court. It is he was employed by the year, or for a year. Reversed equally clear that the assent of Keith to the insurance and remanded. Opinion by HAYDEN, J.-Bougher 0. being made in his name was superinduced by the rep Maryland Life Ins. Co. resentation of the company's agent, that insurance, in that form, would fully protect the interest of the firm
APPEAL-REHEARING-PRINCIPAL AND SURETY. in the cotton. Assuming, as we must from the evidence,
-1. One of several parties to a suit, though on the same that this representation was not made with any inten
side, may appeal without the concurrence of his cotion to mislead or entrap the assured, it is, however, parties. 2. A motion for rehearing may be filed when evident that Keith relied upon that representation, exceptions to the report of a referee are overruled, and, not unreasonably, relied also upon the larger and such motion has all the etfect of a motion for a new experience and gr ater knowledge of the insurance trial in an ordinary case, and suspends the judgment agents in all matters concerning the proper mode of
until its decision. 3. Where sureties engaged for the consummating, by written agreement, contracts of in faithful discharge of the duties of a book-keeper of a surance according to the understanding of the parties. city bank, and the principal in the bond was employed He trusted the insurance agents with ihe preparation in the double capacity of book-keeper and teller withof the written agreement which should correctly ex out the knowledge of the sureties, and whilst thusem. press the meaning of the contracting parties. He is ployed he made false entries in the books of the bank, not chargeable with negligence because he rested in by which erroneous payments of money made by him the belief that the policy would be prepared in con as teller were concealed, or in consequence of which formity with the contract. As soon as he had a reasona they were made and loss accrued to the bank, it is im. ble opportunity to consult counsel he discovered ihe material whether the loss of the bank was caused by mistake, and insisted upon the rights secured by the the wrong-doing of the employee as book-keeper, or original agreement. A court of equily could not deny by his wrong-doing as teller. In neither case, can the relief under such circumstances, without enabling the i sureties be held, where it is found as a fact in the case insurance company to obtain an unconscionable ad.
that the offices of book-keeper and teller are quite disvantage through a mistake for which its agents were
tinct, and that those of a teller are more responsible, chiefly responsible. In all such cases, there belng no and that, as teller, the employee was afforded oppor. laches on the part of the party in discovering and al tunities and exposed to temptations to take money of leging the mistake, equity will lay hold of any addi
the bank, which, as book-keeper, he would not have tional circumstances, fully established, which will jus.
had. The change imposed upon the sureties a risk tify its interposition to prevent marked injustice
wbich they did not undertake, and exonerated them being done. Wheeler v. Smith, 9 How. 82. In
from all liability on the bond. 4. To accept a surety deciding, therefore, as we do, that the complain
known to be acting on a belief that there are no upuants are entitled to have the policy reformed in ac
su:) circumstances by which his risk is materially in. cordance with the original agreement, it is not per
creased, whilst the party thus accepting him knows ceived that we enlarge or depart, in any just sense,
that there are such circumstances, and withholds tbe from the general and salutary rule that a mere mistake
knowledge from the surety, is a legal fraud by which of law, stripped of all other circumstances, constitutes
the surety is discharged. Reversed and remanded. no ground for the reformation of written contracis."
Opinion by Bakewell, J. Home Savings Bank t. Snell 0. Atlantic Fire and Marine Ins. Co. Appeal
Traube. from the Circuit Lout of the Uuited States for the Northern District of Illinois. Opinion by Mr. Justice FIRE INSURANCE-CONDITION "KEEPING OR STORHARLAN, Decree reversed.
ING."-1. A clause in an insurance policy against “keeping or using camphene, spirit gas, burning fluid, or chemical oils," is not violated by using a buruing
fluid not in its nature like campbene or spirit gas. 2. ABSTRACT OF DECISIONS OF ST. LOUIS
The burthen of proof to show the character of the fluid COURT OF APPEALS.
used, and its similarity to those named in tbe same
clause of the policy, is on the insurance company. 3. [October Term, 1878.]
Keeping a burning fluid, the use of which is not, by
tbe express terms of the policy prohibited, as a light ju Hon. EDWARD A LEWIS, Presiding Justice.
moderate quantities, to fill the lamps used on tbe pren. ROBERT A. BAKEWELL, Associate Justices.
ises from day to day, is not "keeping or storing" the CHAS. S. HAYDEN,
oil in a sense intended to be prohibited by those terms,
nor was it "80 using the premises as to in. AGENT-HIRING FOR A YEAR – CUSTOM -- Evi: | crease the risk ” within the meaning of the pole DENCE.-1. Admission in tbe pleadings that plaintiff icy. 4. The case being tried, both on the pleadings was hired by defendant as its general agent in St. I ånd evidence, on the theory that there was a violation
of one special clause in a policy, it is too late to contend were not to be removed from Caldwell county. Plaintiff in the appellate court that there was a violation of oth furnished the cattle, delivered them to defendant, who er clauses not relied upon at the trial, Affirmed. Opin fed and took care of same, and threatening to remove ion by BAKEWELL, J. Wheeler v. American Cent. Ins. and dispose of the cattle, was enjoined by plaintiff Co.
from so doing, which injunction was by the trial court on the bearing dissolved and plaintia's petition dismissed. From this judgment plaintiff appeals, and
the main and controlling question in the case was, ABSTRACT OF DECISIONS OF SUPREME
whether the agreement as above stated entered into
between plaintiff and defendant constituted them COURT OF MISSOURI.
partners. Held, in the recent case of Donnell v.
Harshe, 67 Mo. 170, the subject of partnerships and October Term, 1878.
what constituted them was examined at some length as well as numerous authorities referred to, and the
court there held that an agreement whereby the tenant [Filed December 2, 1878.]
was to cultivate the farm of his landlord on sbares, the
Jandlord and tenant each defraying one moiety of the HON. T. A. SHERWOOD, Chief Justice.
expenses attendant on such cultivation, and sharing “ WM. B. NAPTON,
equally in the profits thereof, did not constitute a part* WARWICK HOUGH, \ Judges.
nership. The only difference between that case and “ E. H. NORTON,
the present one is, that here, with money furnished by “ JOHN W. HENRY,
plaintiff, cattle are purchased to eat the produce raised
on the farm. This fact does not distinguish it in prin. CRIMINAL LAW – RECORD MUST Show TWELVE ciple from the one just cited. A mere participation in JURORS PRESENT WHEN VERDICT IS RENDERED profit and loss does not necessarily constitute a partINDICTMENT FOR EMBEZZLEMENT-SUFFICIENCY OF nership. In this case the agreement does not confer AVERMENTS-FACTS TAKING CASE OUT OF STATUTE on each party power to manage the whole business and OF LIMITATIONS SHOULD BE STATED, - In 1876 de dispose of the whole property. The property in the fendant Myers was indicted under sec. 35, art. 2, ch. cattle remained in plaintiff, and no right to dispose of 42, Wag. Stat., for embezzleing certain United States them was conferred by the contract on defendant, nor bonds, charged to have been received by him as agent to reinove them from plaintiff's farm without his conof one Zumbro, and was convicted at February Term, sent, and the case falls within the rule announced by 1878, of Newton Circuit Court, to which venue bad Shepley, C. J., in Dwinel v. Stone, 30 Mo. 384. Rebeen awarded. It appears from the record that only versed and remanded. Opinion by SHERWOOD, C. J. eleven jurors were present when the verdict of the -Musser v. Brink. jury was received by the court. Held, 1. Tbis was a falal defect, and the judgment must be reversed. State v. Mansfield, 41 MO. 470. 2. The bonds were described in the indictment as "certain United States ABSTRACT OF DECISIONS OF SUPREME five-twenty government bonds, which are valuable securities of the value of five thousand dollars.”
COURT COMMISSION OF OHIO.
This is sufficient; a more particular description not being required by the statute. Wag. Stat., 1091, secs. 28, 30.
December Term, 1878. Neither was it necessary to set out in detail the nature and purpose of the agency, the agency and the receipt
[Filed December 11, 1878.) of the bonds by the defendant in his capacity of agent being distinctly averred. The contract between de
Hon. W. W. JOHNSON, Chief Judge. fendant and owner of the bonds need not be set out,
JOSIAH SCOTT, but such contract when proven must establish an
46 D. T. WRIGHT, į Judges. agency within the meaning of the statute under which
LUTHER DAY, he was indicted, and not an ordinary bailment. 3. It
46 T. Q. ASHBURN, ) appears from the record that the indictment was found more than three years after commission of offense charged, although the indictment alleges commission
ACTION- LAND CONTRACT - FINAL JUDGMENT.of otřepse within tbree years. The better practice in
In an action to recover the balance due on a land consuch cases is to allege the time of commission of of.
iract, and to subject the land to sale for the payment
thereof, the defendant, by cross-petition, set up an alfense, and set forth the facts which avoid tbe bar of the statutes of limitations as an excuse for not having pre
leged cloud on the plaintiff's title to the land. The
court, on the trial, made an entry, finding that the ferred the indictment sooner, though it has been held
cloud had been removed; that the plaintiff had deposthat the offense may be alleged to have been committed
ited with the clerk of the court deeds conveying a clear within the time fixed by the statute, and that the facts
title; the amount due on the contract; and adjudging which suspend the running of the statute may be
the defendant to pay the amount to the clerk within proved at the trial. Reversed and remanded. Opinion
thirty days, and in default tbereof that execution issue by Hougu, J.-State v. Myers.
therefor; and on payment by lefendant that the deed LANDLORD AND TENANT — WORKING LAND OR be delivered to him. The land was sold, and for the PASTURING CATTLE FOR AN EQUAL SHARE OF palance remaining due au execution was issued on the PROFITS DOES NOT MAKE TENANT A COPART judgment and levied on other lands of the defendant, NER WITH LANDLORD.-Plaintiff leased to defendant | which were claimed by another party under a lien aca farm, and by the contract of renting it was agreed quired after the rendition of said judgment. Held, that plaintiff was to furnish money sufficient to pur that the entry so made was a final determination of the chase stock enough to eat up the grain and produce rights of the parties to the action, and was, therefore, raised by defendant on said farm, and that when any a judgment within the meaning of section 370 of the
a judgment within the meaning of section sale of such stock was made plaintiff' was to be refund code; and, being a final judgment against the debtor ed the purchase price of same, and the balance was to for the payment of money, under section 421, became be divided equally between the parties. The cattle ' a lien on his lands in the county where it was render
The Central Law Journal. I wen non-disclosure of principal does not render agent
(See HOMESTEADS AND EXEMPTIONS.)
to take it at present, and a promise to send for it when
sland for a timu and occasionally using it. Ibid.
(See CRIMINAL EVIDENCE.]
recuvery on quantum merui , 77.
swear falsely in a cause in another state, in conse.
without proof of ability to pay, 178.
other state where he is arrested on civil process,
though debt justly due, 203.
fecling plaintity with venereal disease where she con.
induce plaintiff to leave his home and travel into an.
other state, 376.
[See EXECUTORS AND ADMINISTRATORS.)
empting ship owners from liability for loss by fire, 376.
[See PLEADING AND PRACTICE.]
that latter owed them debt sued on, not conclusive
ing orders, 22.
right to keep the same as against the principal. Ibid.
etc. (L. 1863, ch. 91, sec. 3) construed, and a person
its provisions. Ibid.
Vol. 7 No. 26.
Construction of authority to receive payment, 271.
(See PLEADING AND PRACTICE.]
Executions against trust funds and annuities, 483.
OF THE PEACE.)
less incorporated in the bill of exceptions, and a bill of
Jefferson v. Opel. with note, 46.
party to sign and soitle "case made,” 117.
cient reasons, if the record discloses any sufficient
ground for it, non-suit will not be disturbed, 160.
directions, new trial on merits cannot be had, 217.
appeal bond, does not render it void, 257.
supreme court, 26).
ted in oill of exceptions, 316.
mand or refusal cannot be first made on appeal, 319.
without leave, 378.
duly excepting to such order may refuse to take part
late court. Blanchard v. Wolf, 4+5.
though it may have been granted erroneously, he
the trial court proper. Ibid.
may appeal without concurrence of co-parties, 498.
tioned equally where the parties cannot agree and
neither hits the right to fix the proportion, 419.
award costs, including their own fees, 375.
eby Waives biso been granted agent trial, al.
the ground of
was not aware the lime he gave
not be alleged, 198.
tion for infecting with venereal disease, 291.
omitted, through accident, mistake or fraud, a good
title will pass in eqnity by mere delivery, 1.
pay money to become due on Contract; advances by
(See also, INSOLVENT LAWS.]
attachment. Lehman v. Berdin, 269.
cover judgment, can noi resort to bond to compel pay.
ered for client, 6.
tices of the peace, and conduct suits by their agents,
sale is confirmed. Bi
ble unless offered in evidence by client, 196.
coming a witness in his own behalf, 316.
instructions of ciient, 342.
though attorney did so without authority, 343.
restore him to rights of attorney during its pendency,
pressly authorized by law, 379.
in open court, will be enforced; oral agreements, made
conducted by any one of them, 419.
pleases, subject to the solicitor's lien, the lien doo- not
the suit, 481.
implied warranty of title, 192.
[Soe ARBITRATION AND AWARD.)
1874, does not operate as a satisfaction of debts fraudu:
of value of les communicationaired by be.
of judgment-debtor. Withers v. Stinson, 224.
includes every creditor who appears at any session of
taken he is not present, 435.
posits at office in Philadelphia, not liable to taxation in
latter state, 21.
loss which is the result of want of due diligence; illus-
conaplete. Levi v. National Bank of Missouri, 249.
bank; right to collect and credit after suspension. Ibid.
Bank barred by representations of president, 379.
[See APPEALS AND APPELLATE PROCEDURE.)
(Seu NEGOTIABLE AND ASSIGNABLE PAPER.)
[See MUNICIPAL BONDS; OFFICIAL BONDS; SURETIES.)
Abbott's United States Digest, Vol. 8, 39.
" Introduction to, Walker's, Force, 399.