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For the reasons here given, sustained by the cases sus, in equal share and proportion; and it is my will cited, we think the defendant has no longer a right to and pleasure that my said wife has the pleasure, and is appear by counsel when he has escaped from custody permitted to give to any of my children property to· until he has returned into custody. By breaking jail ward their portion when they arrive at age by having and escaping, he has waived the right to have counsel the samo valued and taking their receipt for the samo appear for him. Commonwealth v. Andrews, 97 Mass., as so much toward their portion of my estate. It is ut supra. In fact, his right to constitute counsel and

my bequest that should my said wife intermarry, that invest him with authority no longer exists while his she take as her portion what tho laws of the State of absence from custody continues.

Missouri will allow her, and no more.' We think it best, in view of all the circumstances, to After the death of testator the son Felix, above direct that the motion to dismiss at once be denied; named, married plaintiff, and afterward died intesand although it is unlikely that he will ever surrender tate, leaving surviving an only child born of such himself into custody, it is ordered that the appeal marriage. Before the commencement of this action herein stand dismissed unless the defendant shall, be- said child died intestate. The widow of testator never fore the first Monday of May, 1881, returu to the cus- remarried, but died intestate before the commencetody of the proper officers of the law. See the orders ment of the action. in Sherman's case, 14 Gratt. 677; Leflwich's case, 20 id. 716; and Smith's case, 94 U.S. Rep. 97.

SHERWOOD, J. (after stating the facts. The learned author of the work on Descents says: “A contingent

remainder is that part of an estate in feo bestowed DEVISE TO CHILDREN TO BE ALIVE AT A conditionally upon one of two or more persons, which FUTURE TIME CONTINGENT

one is not certain; the rest of which is bestowed REMAINDER.

definitely upon some other person or persons named.

The part not thus definitely disposed of to some MISSOURI SUPREME COURT, APRIL TERM, 1880.

particular person or persons, is provided to go to some other person or persons of two or moro named, which

of the two or more is left uncertain, and is to be fixed DE LASSUS V. GATEWOOD, Appellant.

and made certain by succeeding events. The remainA testator devised all his property to his wife “to hold at her der itself is certain, but the person who is to have it is will and pleasure during her natural life or widowhood,

uncertain until it is determined by the events named.” and at the death or marriage of my said wifo it is my

Bingham on Descents, 125. will that all my estate theretoforo bequeathed shall be equally divided between my children that are alive, or

Chancellor Kent says that the definition (of a contheir bodily children, to wit: (naming them), in equal

tingent remainder) in the New York Revised Statutes, share or proportion. And it is my will and pleasure

vol. I, 723, § 13, is brief and precise. A remainder, that my said wife has the pleasure, and is permitted to says the statute, is contingent whilst the person to give to any of my children property toward their por- whom, or the event upon which it is limited to take effect, tion when the arrive at age by having the same valued remains uncertain. 2 Kent, 208, note. and taking their receipt for the same as so much toward

Blackstone divides contingent remainders into two their portion of my estate." Held, that the children in

kinds: “When the estate in 'remainder is limited to tended were such as should be alive at the death or re

take effect, either to a dubious and uncertain person, marriage of the widow, and not such as were alive at the time the will was made, and the estate devised to the

or upon a dubious and uncertain event.” 2 Blackst. children was therefore a contingent remainder. Held,

Com. 169. also, that the power conferred upon the widow of giv- This definition corresponds with that of Fearne, ing to any of the children property toward their portion and falls within his fourth class of contingent remainwhen they should arrive at age, did not affect the char- ders. 1 Fearne, 9. acter of the children's estate, since it was altogether I have been thus particular in the citation of textoptional with her whether sho would exercise it, and it

books, since it is agreed that tho rights of the plaintiff had nothing to do with the ultimate division of the

to maintain her action depends upon whether the will property. A contingent remainder is not a descendible interest.

in question created a vested or a contingent remainder

in those who were to take upon the marriage or death IIS

of the widow. In a case decided a few years since in statement of facts:

Massachusetts the will was as follows: Ceran E. DeLassus died testate, previous to the fifth “I give, devise and bequeath to my present wife, day of May, 1857, seised and owner of a large quantit Julia Ludington, all my estates, real, personal and of land, of which the land described in plaintiff's peti- | mixed, to and for the uses and trusts following, to tion in this cause formed a part.

wit: In trust to use and enjoy the same as she now At the time of his death he left him surviving Ele- does, iu taking care of and maintaining my children, nore, his widow, and Mary E., Joseph, Francis, Levin, so far as the sum will maintain them during the period Camille, Felix, Eli, Numa, Mary J., Adolph, and of her widowhood, and at her decease or marriage, Marion, his only children.

then further in trust to divide the same equally to He left a last will and testament, executed on the and among such of my children as shall then be living, 26th of March, 1856, which was on the fifth day of May, share and sharo alike. The names of my said children 1857, duly admitted to probate containing these provis- are George C., Ann L., Lucy M., Francis A. and Caroions:

line E., to them and to their heirs and assigns for" (2) I will and bequeath unto my wife Elenore all ever." my property, both real and personal, goods and chat- The widow survived unmarried, and signed the deed, tels, moneys and effects, etc., to have and to hold at as did all the children named in the will except Ann her will and pleasure during her natural life or wid- L., who died some years after the testator, leaving one owhood. And at the death or marriage of my said child, Lucy C. Hapgood, who was born a few weeks wife it is my will that all my estate heretofore be- before the testator's death. If said Lucy C. has any queathed shall be equally divided between my children interest in the premises, judgment is to be for the that are alive, or their bodily children, to wit: Mary plaintiff, otherwise for the defendants. E. Picon, Joseph L. DeLassus, Francis C. DeLassus, Gray, J., says: “The devisee at the death or marLevi E. DeLassus, Camille J. D. DeLassus, Felix M. riage of the widow 'to and among such of my children DeLassus, Eli M. De Lassus, Mary J. DeLassus, Adolph as shall then be living, share and share alike;' gives a DeLassus, Numa J. DeLassus, and Marion J. DeLas- contingent remainder to such of the children as shall

This action; ejectment, was tried upon an agreed

be living when the contingency of such death or mar- be alive at the death of the mother that there the reriage happens. In the next clause the testator gives mainder would have been contingent. the names of my said children, that is, all those al- Taking this view of that case it is not ‘at variance ready described as my children,' for he could not with the Massachusetts cases already cited. foretell which of them would be living at a future In Anbuchon v. Bender, 44 Mo. 560, it was held that time; and this clause does not extend the effect of the under a covenant to stand seized for the use of the previous one, by which such of them only as shall be covenantor during his life and after his death his title living, upon the happening of the contingency, are to to vest in his five children who were named, there take. The further words, to them and their heirs and the children took a vested remainder, but that the reassigns forever, do not describe the devisees, but the mainder would have been contingent had the words quantity of their estate; or in other words, merely respecting the children been added: “ As shall be livshows that the estate to be taken by virtue of the pre- ing at the time of his death." Let us apply in the vious words in an estate in fee. The daughter who present instance the principle to be deduced from the died after the testator and before his widow, therefore foregoing authorities and cases cited. took no estate, and none passed to her child." Thom- Here the testator says: “I give and bequeath unto son v. Ludington, 104 Mass. 193. So, also, in Olney v. my beloved wife, Elenor DeLassus, all my property, Ilull, 21 Pick. 311, referred to in the case just cited, the oto., etc., to have and to hold at her will and pleasure use of his real estate during widowhood was denied to during her natural life or widowhood. And at the death the wife of the testator, and then this clause was or marriage of my said wife it is my will that all my added : "Should my wife marry or die, the land then estate heretofore bequeathed shall be equally divided shall be equally divided among my surviving song,'' between my children that are alive, or their bodily eto. And it was held that the remainder to the sons children, to wit: (naming the children) in equal share was contingent, until the marriage or death of the or proportion.” widow; and that upon her death the estate vested in a The question at once arises, to what period of time son who was then living, to the exclusion of the heirs do the words that are alive" refer?

Obviously, I of another son who died before the widow, but after think, to the death or marriage of the wife. And I am the death of the testator. Morton, J., observing: “He of this opinion for these reasons: one, that the will says, Should my wife marry or die, the land then shall speaks from the death of the testator, and not from be equally divided among my surviving sons. The time the time of its execution; another, that it would be when the estate was to be divided among the sons is most unreasonable to suppose that the testator having certain and definite. It was when the intermediate mentioned his children by name did not know that estate terminated at the death or marriage of the ten- they were then alive. And yet we must indulge such aut. Among whom was it to be divided ? Not those unreasonable supposition if those words are to be who survived any prior event, not those who survived referred to the time the will was executed, and not to the father, but those surviving that particular event; a future period when the death or the marriage should those surviving the death or marriage of the widow.” occur. If those words refer to the time the will was

In Emison v. Whiltelsey, 55 Mo. 254, a similar adju- being drawn, then they are absolutely meaningless and dication was made. Mr. Justice Napton, speaking for utterly destitute of any intelligent expression. If, on the court, said: “This was a conveyance to the mother, the contrary, we judge them to refer to the future and upon her death the remainder was conveyed to her event of either death or marriage, they become at once children who survived her, and the children of such of significant. her children as were dead, at her decease. At the time And it would seem beyond question, both from the of the deed it was impossible to say that any one was grammatical construction of the sentence as well as in existence who would take the remainder. No one from other considerations already adverted to, that could tell that any of the children would survive the those words can be referred only to the event in the mother. It was therefore a contingent remainder." future which was to cause the termination of the parAmong the authorities cited in the last-named case, ticular estate and the commencement of that in reand in support of the doctrine there announced, was mainder. that of Jones v. Walers, 17 Mo. 589. There the land When is the estate to be divided ? was devised by the testator to his wife for and during At the death or marriage, etc. her natural life, and after her death to descend to her Among whom divided ? children by him, equally share and share alike," and it The children that are alive," or their bodily chilwas held that this created a vested remainder in the dren. Alive, when ? children, and that one of the sons who predeceased his When the division of the estate is to occur. mother had an interest in the estate devised which It appears very plain that the above are the only was subject to sale. There were several children of answers that can with any show of reason be returned the marriage at tho time of the execution of the will to the foregoing questions. If this be true, then the and the death of the testator.

will under consideration is to be held as bearing the But in delivering the opinion of the court in that same meaning as if the words composing it were transcase Judge Gamble drew the distinction between that posed and it read thus: It is my will that all my estate class of cases and one liko the present, for he is careful heretofore bequeathed shall at the death or marriage to say:

“Here the devisees in remainder are ascer- of my said wife be equally divided between my chiltained by the will; and they are to have the enjoy-dren that are alive or their bodily children. ment of the estate as soon as the estate for life ends. If these views are correct, if the words that are The devise of the remainder is not to such of the children aliverefer to the future, refer to the time when the as may be alive at the death of the mother, but to all the particular estate was to cease, and the estate in rechildren of the marriage. There is no event or contin- mainder was to take effect, then it must needs follow gency interposed between the death of the mother and that those words are the legal equivalent of then living, the enjoyment of the estate by the persons in remain- in which case they come within the rule of the authorder, but immediately on her death it descends to ities already quoted, and the remainder created by the them. The law favors vested estates, and no remain- will must be held a contingent, and not a vested one, der will be construed to be contingent which may con- for until the death or marriage of the tenant of the sistently with the intention be deemed vested.” The particular estate it was impossible to ascertain who of clear intimation in that case is that if the devise of the the children of the testator or their bodily children remainder had been to such of the children as should would be alive to take in remainder.





The conclusion just announced is not affected by the wife. For three years he continued prosperous reason of the fact that the widow was permitted in her in good credit and standing financially in pursuit of discretion to give to any of the children property his previous business and without having incurred any toward their portion when they should arrive at age, extraordinary or unusual risks. He engaged in no specusince by the terms employed it was altogether optional lation except the purchase of the village lots named, with the widow whether she should exercise the power in which he disposed of some of his unproductive perthus conferred or not, and had nothing to do with the sonal property at a large price and which lots brought ultimate division of tho testator's estate.

nearly four-fifths of their purchase-price upon an exeIn Olney v. Hull, supra, it was provided that each cution sale. Ho became insolvent from reverses, withson should, on coming into possession, pay sixty dol- out intent to defraud and without fault except a lars to the daughters of tho testator, but this was held want of foresight. In an action by a judgment creditor not to alter the nature of the interest devised.

of the husband whose debt was contracted more than As the remainder in this case was contingent neither three years after the conveyance to the wife, to set Felix M. DeLassus nor his bodily child, William A., aside the conveyance, held, that such conveyance was had any descendible interest which could pass to the not fraudulent as to creditors. There was no evidence plaintiff.

to show a fraudulent purpose in making it, and the Bingham on Descents, 222, 232: and so she cannot settlement upon the wife was not unsuitable or dispromaintain her action, and judgment reversed. All con- portionate to his means. The cases of Savage v.

Murphy, 31 N. Y. 508; Case v. Phelps, 39 id. 164; Car

penter v. Roe, 10 id. 227 ; Shand v. Hanley, 71 id. 319; NOTE.— An interesting case involving the doctrine of

Mullen v. Wilson, 44 Penn. St. 413, distinguished. contingent remainders was decided on the 5th of July Cases cited, Dunlap v. Hawkins, 59 N. Y. 312; Jencks last by the Chancery Division of the English High

v. Alexander, 11 Paige, 623; Van Wyck v. Seward, 6 Court of Justice (Re Finch; Abbis v. Burney, 43 L. T.

id. 62; Jackson v. Post, 15 Wend. 588; Phillips v. Rep. [N. S.] 20). In this case testator devised free

Wooster, 36 N. Y. 412; Bank of U. 8. v. IIousman, 6 holds to trustees upon certain trusts during tho life of Paige, 526; Babcock v. Eckler, 24 N. Y. 623. JudgH. M., and after the death of H. M. upon trust to con

ment reversed and new trial granted. Carr v. Breese vey to such son of W. M. as should first attain twentyfive. Testator died in 1830. A son of W. M. attained [Decided Sept. 21, 1880.]

et al., appellants. Opiniou by Miller, J. twenty-five in 1836 and died in 1865. H. M. died in 1877. Held, that the limitation to the son of W. M. was a PARTNERSHIP contingent remainder which had vested in him on at

AND THIRD PERSON – SUB-PARTNERSHIP – SUB-PARTtaining twenty-five. Another point passed upon in

NER NOT LIABLE AS PARTNER. Strang, Pratt and the same case was this: Testator had directed that Ryley formed a partnership in the wool brokerage and such son of W. M. as should become entitled under commission business. At the time, a proposition was his will, should within two years after becoming made to Suyder to become a partner in the firm. Ho 80 entitled assume the testator's name and arms, would not do so, but an agreement was made, with the and that in case of refusal or neglect, then after knowledge of all the partners, between Ryley and Snythe expiration of such two years his interest should be

der, whereby Snyder was to take a share of Ryley's invoid and go over. W. M.'s son had not assumed the

terest, viz., one-third of Ryley's share of the profits and testator's name and arms. Held, that “entitled "

losses in the business. No capital was contributed by meant "entitled in possession,” and that the estate any one, the business requiring none. Snyder, who had not been forfeited.—[ED. ALB. L. J.

was a wool buyer for certain mills, aided the firm by purchases and consignments of wool, but took no part

in the management of the business and was not held NEW YORK COURT OF APPEALS ABSTRACT.

out as a partner. Held, that Snyder did not become a

partner in the firm of Strang, Platt & Ryley, as ho had FRAUDULENT CONVEYANCE -- SETTLEMENT BY HUS- no interest in the profits of the firm as profits; but a WIFC - WHAT

CONSTITUTE right simply to demand of Ryley that he should acFRAUD.-A husband is authorized to make a settle- count to him for one-third of his profits, accompanied ment of a suitable amount upon his wife from bis with an obligation to pay one-third of his losses. He property if he has no dishonest purpose in view; and had no joint proprietorship with the members of the such settlement the law will protect. A husband in firm in the profits before division; was not entitled to prosperous circumstances and financially unembar- an account as partner, and had no lien on the partnerrassed, owned real estate which sold for $17,200, and ship assets. Grace v. Smith, 2 Wm. Blacks. 998, folunproductive personal property worth between $4,000 lowed by Waugh v. Carver, 2 H. Bl. 235, decides that or $5,000. He purchased a dwelling-house for $16,300 participation in profits makes one not ostensibly so a and procured the deed to be executed in his wife's partner. Cox v. Hickman, 8 H. L. Cas. 301, impugns name. He paid on the purchase $10,600 from moneys if it does not overthrow this doctrine, and it held obtained from the sale of his real estate, leaving the that those who share in the profits of a business are balance on mortgage upon the property conveyed to not liable as partners unless they carry on the business his wife. He at the time owed not to exceed $2,788.18. personally or others carry it on as their real or ostenHe used the balance of the moneys realized from the sible agents. Snyder was not liable under the doctrine sale of his real estate in paying for stock and fixtures in either of these cases. In this Stato the earlier Engfor a new place of business he had hired, in his busi- lish cases are followed. See Leggett v. Hyde, 58 N. Y. ness and in the purchase of some lots in a village ad- 272. But the participation in the profits of a trade joining the city where he resided. Ho afterwards paid which makes a person a partner as to third persons is in full every debt which he had contracted before the a participation in the profits as such, under circumtitle to the property purchased was vested in his wife. stances which give him a proprietary interest in the The purchase of the house was made openly and with- profits before division, as principal trader (Ex parte out any concealment, the deed thereof immediately | Hamper, 17 Ves. 401; Story on Part., $ 49; Parsons on placed upon record; there was then no prospect or Part. 74), and the right to an account as partner and a probability of financial disaster, and it did not appear lien upon the partnership assets in preference to indithat subsequent embarrassment and final insolvencyvidual creditors of the partner. Champson v. Bostin which the husband became involved were contem- wick, 18 Wend. 181; 3 Kent's Com. 25; 1 Smith's L. plated or expected when the conveyance was made to Cas. 984. Numerous exceptions to the rule have been






established. See Vandenburgh v. IIall, 20 Wend. 70; Justice and equity forbid that one man's money shall Burckle v. Eckart, 3 N. Y. 132; Richardsou v. Hughitt, be applied to the payment of another man's debts. On 76 id. 55. The contract of sub-partnership, which is a this is based the right of a vendor to stoppago in trancontract between a partner and a third person, whereby situ, which arises solely upon the insolvency of the the latter is to share thc profits and losses of such | buyer. Where a vendor has delivered goods out of his partner will not make the person a partner in the firm. possessiou, into the hands of a carrier for delivery to Burnett v. Snyder, 76 N. Y. 344; Ex parte Barrow v. the buyer, if he discovers that the buyer is insolvent, Rose, 25%; Bray v. Fromant, 6 Madd. 5; Killcock he may retake the goods, if he can, before they reach v. Greed, 4 Russ. 285; Frost v. Moulton, 21 Beav. 596; the buyer's possession, and thus avoid having his propColly on Part. (6th ed.), $ 27. Snyder was not, in the erty applied to paying debts due by the buyer to the case at bar, liable for the debts of the firm, Judgment other people. It was long a mooted question whether reversed. Burnett v. Snyder, appellant, et al. Opinion the effect of this remedy of the vendor is a rescission of by Andrews, J.

the sale, or a restoration of possession of the goods [Decided Sept. 21, 1880.]

with the rights of an unpaid vendor; but now it seems the better opinion that the contract is not rescinded.

Although this remcdy of a vendor, which exists only NEBRASKA SUPREME COURT ABSTRACT.

before actual delivery of the goods into the buyer's

possession, cannot be exercised in precisely the samo CRIMINAL LAW - CONFESSION NOT PROOF OF CORPUS mode by a lender money or credit, yet for similar

A confession is not alone sufficient to cause the lender ought to have as efficient a remedy establish the commission of a crime. That a crime has until the money is paid to, or the credit is used by the actually been committed must necessarily be the foun- borrower. The lender's remedy may have the effect of dation of every criminal prosecution, and this must a rescission of the bargain. Goods can be held subject be proved by other testimony than a confession, the to a lien for the price agreed upon, and if disposed of confession being allowed for the purpose of counecting for more than that, the buyer may have the gain or the accused with the offense. In People v. Hennessey, suffer the loss; but when a borrower has as little right 15 Wend. 147, it was held that a confession of embez- to the money as a buyer has to the goods, it is impraczlement by a clerk would not warrant a conviction, ticable to hold and dispose of the money with like unless there was other evidence that an embezzlement result. Nor is there reason for so holding - the value had been committed. Aud in Peoplo v. Parker, 2 of the goods may increase or diminish, whereby the Park. Cr. 14, it was held, in an indictment for blas-buyer may be gainer or loser by bis contract - the phemy, that there must be other evidence of the value of money is fixed. Insolvency takes the pith blasphemy than the mere confession of the accused. out of the borrower's promise to pay, and if he has In the case of State v. Stringfellow, 26 Miss. it was not yet received the money he should not take it. He held that a confession of a murder was not sufficient did not get the credit in view of his bankruptcy. to warrant a conviction, unless the death of the per- Dougherty Bros. & Co. v. Central National Bank. son confessed to have been murdered was proved by Opinion by Trunkey, J.; Mercur and Sterritt. JJ., other testimony. All experience has shown that dissented. verbal confessions of guilt are to be received with [Decided May 3, 1880.] great caution. The danger of mistake from the mis

JURISDICTION — STATE COURTS HAVE, OF ACTIONS IN nse of words, the failure of the party to express his

PERSONAM FOR MARITIME TORTS. - State courts havo meaning, the misapprehension or want of recollection jurisdiction over actions in personam for damages by of the witness, or his zeal in pursuit of evidence, all

reason of a collision between boats on the Ohio river, admonish us to receive such testimony with great care.

against the owners of the boat in fault. Section 563, Priest v. State of Nebraska. Opinion by Maxwell, C. J.

U. S. R. S., prescribes in what cases the District Court [Decided Aug. 31, 1880.]

shall havo jurisdiction, and pl. 8 thereof declares, “of STATUTE OF FRAUDS-DEFENSE UNDER, PERSONAL.- all civil causes of admiralty and maritime jurisdiction, Only a party to a contract can avail himself of a de- saving to suitors in all cases the right of a commonfense founded upon the statute of frauds. Strangers | law remedy, where the common law is competent to cannot set it up. As is said by the court in Cahill v. give it." In Hine v. Trevor, 4 Wall. 570, and in The Bigelow, 18 Pick. 369 : “The effect of the statute is Belfast, 7 id. 644, brought in the State courts, the prothat the promisor, who would otherwise be liable to ceedings were in rem, and as there was no proceeding in such au action, may avoid it." And also in Chicago rem at common law, the cases were held not to come Dock Co. v. Kinzee, 49 Ill. 289: “This statutory de- within the saving clause of the act of Congress. But fense is personal, and cannot be interposed by stran- in Leon v. Galceran, 11 id. 188, it was held the State gers to the agreement. Like usury, iufancy, and a courts have jurisdiction in au action in personam. It variety of other defenses, it can only be relied ou by is true that case was on a contract; but the act of Conparties and privies.” See, also, Robison v. Uhl, 6 Neb. gress makes no distinction between a tort and a con328; Uhl v. Robison, 8 id. 272; Eiseley y. Malchow, 9 tract. The test is, whether the common law gives to a id. 174; McCormick v. Deurnmett, id. 384. Rickards suitor the right of a common-law remedy, to redress v. Cunningham. Opinion by Lake, J.

the wrong which he has suffered. Whenever it does, [Decided Sept. 1, 1880.]

the party injured may maintain such action in a Stato court. Brown v. Gilmore. Opinion by Mercur, J.




SEPTEMBER 21, 1880.* MONEYS LOANED, IN HIS HANDS. Where a lender, before he pays over money loaned on the borrower's CONTRACT - DEED FOR LAND ACCEPTED BINDS note, discovers that the borrower is insolvent, he has GRANTEE NOT SIGNING - PAROL PROOF TO CONTRAa right of a similar nature to that of stoppage in tran- DICT. The acceptance by the grantee, of a deed or situ. He may tender back the discounted note and land contract executed by the grantor alone, binds refuse payment to the borrower: and the borrower's assignees have no superior rights to him in the matter.

* To appear in 50 Wisconsin Reports.

such grantee. Lowbor v. Connit, 36 Wis. 176; Hutch- OFFICE ELIGIBILITY TO. The doctrine that a inson v. Railway Co., 37 id. 582. Plaintiff sold, as- person elected to an office, though not eligible at the signed and delivered to defendant, for an agreed time of the election, may take and hold the office if his consideration in money, certain notes and mortgages of disability is removed within the time limited to him a third party, and all his interest in a contract for the by law for entering upon its duties, adhered to upon sale of certain land by him to such third party, the the ground that it was so decided in State ex rel. Shuet assignment being in writing under seal, executed by v. Murray, 28 Wis. 96. The opinion criticises that dethe plaintiff alone, and containing a statement of the cision. State of Wisconsin v. Trumpf. Opinion by consideration, and stipulations for the security of the Ryan, C. J. plaintiff and as to the effect of a default by the defendant to make the payments therein specified; and in execution of said agreement, defendant paid a part

INSURANCE LAW. of the sum named as consideration, and delivered to plaintiff his three promissory notes for the remainder. FIRE INSURANCE – OWNERSHIP OF MONEY FOR INIn an action on the notes, held, that defendant cannot SURANCE AS BETWEEN VENDOR AND PURCHASER. prove a contemporaneous oral agreement, by which, in After the date of a contract for the sale of a house, case the timber on the lands described in the contract and before completion of the purchase, the house was should fall short of a certain amount, he was to be damaged by fire, and the vendors received the insurallowed at a certain rate per M. for the shortage, and anco money from the insurance company, under a that there was such a shortage. Hunt v. Adams, 7 policy existing at the date of the contract. The conMass. 518; Curtis v. Wakefield, 15 Pick. 437; Moseley tract contained no reference to tho insurance. In an v. Hanford, 10 Barn. & Cress. 729; St. Louis Perpetual action by the purchasers against the vendors, held, that Ins. Co. v. Homer, 9 Metc. 39. Hubbard v. Marshall. the purchasers were not entitled to recover the moneys Opinion by Lyon, J.

from the vendors, or to be allowed to have the amount

deducted from their purchase-money, or to have the JOINDER -- IN ACTIONS FOR TORT -- RELEASE OF ONE

moneys applied in reinstatement of the premises. PARTY WHEN NOT RELEASE OF OTHERS. - Although an

Eng. High Ct. of Just., Ch. Div., April 19, 1880. Rayagreement not to sue one of the several joint and seve

ner v. Preston. Opinion by Jessel, M. R. ral contractors, or joint trespassers, made upon a sufficient cousideration, is not a technical release or dis- LIFE INSURANCE — FORFEITURE BY FAILURE TO PAY charge of the debt or damages, yet to avoid circuity PREMIUM WIEN DUE RELUCTANCE OF COURTS TO of action, the party with whom the agreement has EXFORCE FORFEITURES. A life insurance policy, conbeen made may set it up as a bar to an action brought taining a provision that the same should cease and against him alone for such debt or damages. Lacy v. determine" if the premium should not be paid when Kyanston, 2 Salk. 575; 1 Pars. on Cont. 28 n. (i). In due, is not forfeited by tho failure to pay such prethe absence of any technical release or discharge, un- mium on the day it is due, where tho company negder seal, of one joint trespasser, the receipt of money lected to inform the assured of a change in tho agent from one, with an agreement not to prosecute him, authorized to receive the samo after they had adopted discharges the others only where such money is re- a rule to give such notice in all cases, and the assured ceived as an accord and satisfaction for tho whole tendered the premium in due season to the former injury. Where it is received only as part satisfaction, agent of the company, and was unable to find the new it discharges the others only pro tanto, and the ques- agent after reasonablo inquiry. In such case the astion of fact is for the jury; at ieast in all cases where sured was entitled to a reasonable time before forfeitthe amount of the damages does not rest chiefly in tho ure could be declared. The failure to pay such premium discretion of the jury, but is the subject of proof and for sixty days after it was due was not, under such computation. Bronson v. Fitzhugh, 1 Hill, 185; Corks circumstances, an unreasonablo time, where the comv. Nash, 9 Bing. 341; Brooks v. Stuart, 9 A. & E. 854; pany had waived the time of payment in tho previous Brown v. Cambridge, 3 Allen, 475; McCrillis v. Hawes, year, and it did not appear at what time, if ever, the 38 Me. 568; Gilpatrick v. Hunter, 24 id. 18; Eastman assured was informed of the place of payment. In v. Greene, 34 Vt. 390; Ellis v. Betzer, 2 Ohio, 293; Insurance Co. v. Eggleston, 96 U. S. 572, Bradley, J., Knickerbocker v. Colver, 8 Cow. 111; Cooley on Torts, said: “We have recently, in the case of Insurance Co. 139; Story on Cont., $ 997; Miller v. Lovejoy, 3 Wall. v. Norton (96 U. S. 234), shown that forfeitures are not 1. In an action for a trespass to real estate by enter- favored in the law, and the courts are always prompt ing thereon, and cutting and carrying away from it to seize hold of any circumstances that indicate an saw logs, the jury found the amount and value of tho election to waive a forfeiture, or an agreement to do so logs carried away, and also that plaintiff, considera- on which the party has relied and acted. Any agreetion of a certaiu sum of money (uuch less than the ment, declaration, or cause of action on the part of value of the logs) paid him by one who committed the an insurance company which leads a party insured trespass jointly with defendants, had agreed not to sue honestly to believe that by conforming thereto a forhim therefor; that at that time the damages remained feiture of his policy will not be incurred, followed by unliquidated; but that it was not understood between due conformity on his part, will and ought to estop tho the parties to such agreement that said sum satisfied company from insisting upon the forfeiture, although plaintiff for the damages sustained, but it was under- it might be claimed under the express letter of the stood that he intended to look to the other joint tres- contract." And it was accordingly in that case held, passers therefor, held, that the action was not barred that where an insurance company had been in the by such agreement. Snow v. Chandler, 8 N. H. 92 ; habit of notifying tho assured of tho time when and Spencer v. Williams, 2 Vt. 209; Chamberlain v. Mur- place where premiums were to be paid, he had reasonphy, 41 id. 110; Sloan v. Herrick, 49 id. 3:28; Mathews able cause to expect and rely on receiving such notice, v. Chickopee Co., 3 Robt. 712; Bloss v. Pyenale, 3 and that the company was estopped from setting up West Va. 393; Shaw v. Pratt, 22 Pick. 307; Pond v. that the policy was forfeited by the non-payment of a Williams, 1 Gray, 630; Bank v. Messenger, 9 Cow. 37; premium of which no such notice was given. The folLine v. Nelson, 38 N. J. L. 338; Greenwald v. Milbank, iowing authorities show the reluctance of courts to 15 Abb. Pr. 378 (N. S.); Solly v. Forbes, 6 Eng. Com. enforce forfeitures in this class of cases, and support Law, 551; Thompson v. Lark, 54 id.; Bank v. Curtiss, the general views expressed : Insurance Co. v. Wolff, 37 Barb. 319; Gunther v. Lee, 45 Md. 60. Ellis v. Es- 95 U. S. 326; Insurance Co. v. Pierce, 75 Ill. 426; sau. Opinion by Taylor, J.

Thompson v. Insurance Co., 52 Mo. 469; Mayer v. In

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