Page images
PDF
EPUB

For the reasons here given, sustained by the cases cited, we think the defendant has no longer a right to appear by counsel when he has escaped from custody until he has returned into custody. By breaking jail and escaping, he has waived the right to have counsel appear for him. Commonwealth v. Andrews, 97 Mass., ut supra. In fact, his right to constitute counsel and invest him with authority no longer exists while his absence from custody continues.

We think it best, in view of all the circumstances, to direct that the motion to dismiss at once be denied; and although it is unlikely that he will ever surrender himself into custody, it is ordered that the appeal herein stand dismissed unless the defendant shall, before the first Monday of May, 1881, return to the custody of the proper officers of the law. See the orders in Sherman's case, 14 Gratt. 677; Leftwich's case, 20 id. 716; and Smith's case, 94 U. S. Rep. 97.

DEVISE TO CHILDREN TO BE ALIVE AT A FUTURE TIME CONTINGENT

REMAINDER.

MISSOURI SUPREME COURT, APRIL TERM, 1880.

DE LASSUS V. GATEWOOD, Appellant.

A testator devised all his property to his wife "to hold at her will and pleasure during her natural life or widowhood, and at the death or marriage of my said wife it is my will that all my estate theretoforo bequeathed shall be equally divided between my children that are alive, or their bodily children, to wit: (naming them), in equal share or proportion. And it is my will and pleasure that my said wife has the pleasure, and is permitted to give to any of my children property toward their portion when the arrive at age by having the same valued and taking their receipt for the same as so much toward their portion of my estate." Held, that the children intended were such as should be alive at the death or remarriage of the widow, and not such as were alive at the time the will was made, and the estate devised to the children was therefore a contingent remainder. Held, also, that the power conferred upon the widow of giv ing to any of the children property toward their portion when they should arrive at age, did not affect the character of the children's estate, since it was altogether optional with her whether sho would exercise it, and it had nothing to do with the ultimate division of the property.

A contingent remainder is not a descendible interest..

THIS action, ejectment, was tried upon an agreed

statement of facts:

Ceran E. DeLassus died testate, previous to the fifth day of May, 1857, seised and owner of a large quantity of land, of which the land described in plaintiff's petition in this cause formed a part.

At the time of his death he left him surviving Elenore, his widow, and Mary E., Joseph, Francis, Levin, Camille, Felix, Eli, Numa, Mary J., Adolph, and Marion, his only children.

He left a last will and testament, executed on the 26th of March, 1856, which was on the fifth day of May, 1857, duly admitted to probate containing these provisions:

[ocr errors]

(2) I will and bequeath unto my wife Elenore all my property, both real and personal, goods and chattels, moneys and effects, etc., to have and to hold at her will and pleasure during her natural life or widowhood. And at the death or marriage of my said wife it is my will that all my estate heretofore bequeathed shall be equally divided between my children that are alive, or their bodily children, to wit: Mary E. Picon, Joseph L. DeLassus, Francis C. DeLassus, Levi E. DeLassus, Camille J. D. DeLassus, Felix M. DeLassus, Eli M. DeLassus, Mary J. DeLassus, Adolph DeLassus, Numa J. DeLassus, and Marion J. DeLas

sus, in equal share and proportion; and it is my will and pleasure that my said wife has the pleasure, and is permitted to give to any of my children property toward their portion when they arrive at age by having the samo valued and taking their receipt for the samo as so much toward their portion of my estate. It is my bequest that should my said wife intermarry, that she take as her portion what the laws of the State of Missouri will allow her, and no more."

After the death of testator the son Felix, above named, married plaintiff, and afterward died intestate, leaving surviving an only child born of such marriage. Before the commencement of this action said child died intestate. The widow of testator never remarried, but died intestate before the commencement of the action.

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 fee bestowed conditionally upon one of two or more persons, which one is not certain; the rest of which is bestowed definitely upon some other person or persons named. The part not thus definitely disposed of to some 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 and made certain by succeeding events. The remainder itself is certain, but the person who is to have it is uncertain until it is determined by the events named." Bingham on Descents, 125.

Chancellor Kent says that the definition (of a contingent remainder) in the New York Revised Statutes, vol. I, 723, § 13, is brief and precise. A remainder, says the statute, is contingent whilst the person to whom, or the event upon which it is limited to take effect, remains uncertain. 2 Kent, 208, note.

Blackstone divides contingent remainders into two kinds: "When the estate in 'remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event." 2 Blackst. Com. 169.

This definition corresponds with that of Fearne, and falls within his fourth class of contingent remainders. 1 Fearne, 9.

I have been thus particular in the citation of textbooks, since it is agreed that the rights of the plaintiff to maintain her action depends upon whether the will in question created a vested or a contingent remainder in those who were to take upon the marriage or death of the widow. In a case decided a few years since in Massachusetts the will was as follows:

"I give, devise and bequeath to my present wife, Julia Ludington, all my estates, real, personal and mixed, to and for the uses and trusts following, to wit: In trust to use and enjoy the same as she now does, in taking care of and maintaining my children, so far as the sum will maintain them during the period of her widowhood, and at her decease or marriage, then further in trust to divide the same equally to and among such of my children as shall then be living, share and share alike. The names of my said children are George C., Ann L., Lucy M., Francis A. and Caroline E., to them and to their heirs and assigns forever."

The widow survived unmarried, and signed the deed, as did all the children named in the will except Ann L., who died some years after the testator, leaving one child, Lucy C. Hapgood, who was born a few weeks before the testator's death. If said Lucy C. has any interest in the premises, judgment is to be for the plaintiff, otherwise for the defendants.

Gray, J., says: "The devisee at the death or marriage of the widow 'to and among such of my children as shall then be living, share and share alike,' gives a contingent remainder to such of the children as shall

be living when the contingency of such death or marriage happens. In the next clause the testator gives the names of my said children, that is, all those already described as 'my children,' for he could not foretell which of them would be living at a future time; and this clause does not extend the effect of the previous one, by which such of them only as shall be living, upon the happening of the contingency, are to take. The further words, to them and their heirs and assigns forever, do not describe the devisees, but the quantity of their estate; or in other words, merely shows that the estate to be taken by virtue of the previous words in an estate in fee. The daughter who died after the testator and before his widow, therefore took no estate, and none passed to her child." Thomson v. Ludington, 104 Mass. 193. So, also, in Olney v. Hull, 21 Pick. 311, referred to in the case just cited, the use of his real estate during widowhood was denied to the wife of the testator, and then this clause was added: "Should my wife marry or die, the land then shall be equally divided among my surviving sons," etc. And it was held that the remainder to the sons was contingent, until the marriage or death of the widow; and that upon her death the estate vested in a son who was then living, to the exclusion of the heirs of another son who died before the widow, but after the death of the testator. Morton, J., observing: "He says, Should my wife marry or die, the land then shall be equally divided among my surviving sons.' The time when the estate was to be divided among the sons is certain and definite. It was when the intermediate estate terminated at the death or marriage of the tenaut. Among whom was it to be divided? Not those who survived any prior event, not those who survived the father, but those surviving that particular event; those surviving the death or marriage of the widow.”

In Emison v. Whittelsey, 55 Mo. 254, a similar adjudication was made. Mr. Justice Napton, speaking for the court, said: "This was a conveyance to the mother, and upon her death the remainder was conveyed to her children who survived her, and the children of such of her children as were dead, at her decease. At the time of the deed it was impossible to say that any one was in existence who would take the remainder. No one could tell that any of the children would survive the mother. It was therefore a contingent remainder." Among the authorities cited in the last-named case, and in support of the doctrine there announced, was that of Jones v. Waters, 17 Mo. 589. There the land was devised by the testator to his wife for and during her natural life, and after her death to descend to her children by him, equally share and share alike," and it was held that this created a vested remainder in the children, and that one of the sons who predeceased his mother had an interest in the estate devised which was subject to sale. There were several children of the marriage at the time of the execution of the will and the death of the testator.

But in delivering the opinion of the court in that case Judge Gamble drew the distinction between that class of cases and one like the present, for he is careful to say: "Here the devisees in remainder are ascertained by the will; and they are to have the enjoyment of the estate as soon as the estate for life ends. The devise of the remainder is not to such of the children as may be alive at the death of the mother, but to all the children of the marriage. There is no event or contingency interposed between the death of the mother and the enjoyment of the estate by the persons in remainder, but immediately on her death it descends to them. The law favors vested estates, and no remainder will be construed to be contingent which may consistently with the intention be deemed vested." The clear intimation in that case is that if the devise of the remainder had been to such of the children as should

be alive at the death of the mother that there the remainder would have been contingent.

Taking this view of that case it is not at variance with the Massachusetts cases already cited.

In Anbuchon v. Bender, 44 Mo. 560, it was held that under a covenant to stand seized for the use of the covenantor during his life and after his death his title to vest in his five children who were named, there the children took a vested remainder, but that the remainder would have been contingent had the words respecting the children been added: "As shall be living at the time of his death." Let us apply in the present instance the principle to be deduced from the foregoing authorities and cases cited.

Here the testator says: "I give and bequeath unto my beloved wife, Elenor DeLassus, all my property, otc., etc., to have and to hold at her will and pleasure during her natural life or widowhood. And at the death or marriage of my said wife it is my will that all my estate heretofore bequeathed shall be equally divided between my children that are alive, or their bodily children, to wit: (naming the children) in equal share or proportion."

The question at once arises, to what period of time do the words "that are alive" refer? Obviously, I think, to the death or marriage of the wife. And I am of this opinion for these reasons: one, that the will speaks from the death of the testator, and not from the time of its execution; another, that it would be most unreasonable to suppose that the testator having mentioned his children by name did not know that they were then alive. And yet we must indulge such unreasonable supposition if those words are to be referred to the time the will was executed, and not to a future period when the death or the marriage should occur. If those words refer to the time the will was being drawn, then they are absolutely meaningless and utterly destitute of any intelligent expression. If, on the contrary, we judge them to refer to the future event of either death or marriage, they become at once significant.

And it would seem beyond question, both from the grammatical construction of the sentence as well as from other considerations already adverted to, that those words can be referred only to the event in the future which was to cause the termination of the particular estate and the commencement of that in remainder.

When is the estate to be divided?
At the death or marriage, etc.
Among whom divided?

The children "that are alive," or their bodily children. Alive, when?

When the division of the estate is to occur.

It appears very plain that the above are the only answers that can with any show of reason be returned to the foregoing questions. If this be true, then the will under consideration is to be held as bearing the same meaning as if the words composing it were transposed and it read thus: It is my will that all my estate heretofore bequeathed shall at the death or marriage of my said wife be equally divided between my children that are alive or their bodily children.

If these views are correct, if the words "that are alive" refer to the future, refer to the time when the particular estate was to cease, and the estate in remainder was to take effect, then it must needs follow that those words are the legal equivalent of then living, in which case they come within the rule of the authorities already quoted, and the remainder created by the will must be held a contingent, and not a vested one, for until the death or marriage of the tenant of the particular estate it was impossible to ascertain who of the children of the testator or their bodily children would be alive to take in remainder.

[ocr errors]

The conclusion just announced is not affected by reason of the fact that the widow was permitted in her discretion to give to any of the children property toward their portion when they should arrive at age, since by the terms employed it was altogether optional with the widow whether she should exercise the power thus conferred or not, and had nothing to do with the ultimate division of the testator's estate.

In Olney v. Hull, supra, it was provided that each son should, on coming into possession, pay sixty dollars to the daughters of tho testator, but this was held not to alter the nature of the interest devised.

As the remainder in this case was contingent neither Felix M. DeLassus nor his bodily child, William A., had any descendible interest which could pass to the plaintiff.

Bingham on Descents, 222, 232: and so she cannot maintain her action, and judgment reversed. All con

cur.

NOTE. An interesting case involving the doctrine of contingent remainders was decided on the 5th of July last by the Chancery Division of the English High Court of Justice (Re Finch; Abbis v. Burney, 43 L. T. Rep. [N. S.] 20). In this case testator devised freeholds to trustees upon certain trusts during the life of H. M., and after the death of H. M. upon trust to convey to such sou of W. M. as should first attain twentyfive. Testator died in 1830. A son of W. M. attained 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 contingent remainder which had vested in him on attaining twenty-five. Another point passed upon in the same case was this: Testator had directed that such son of W. M. as should become entitled under his will, should within two years after becoming so entitled assume the testator's name and arms, and that in case of refusal or neglect, then after the expiration of such two years his interest should be void and go over. W. M.'s son had not assumed the testator's name and arms. Held, that "entitled meant "entitled in possession," and that the estate had not been forfeited.-[ED. ALB. L. J.

NEW YORK COURT OF APPEALS ABSTRACT.

the wife. For three years he continued prosperous
in good credit and standing financially in pursuit of
his previous business and without having incurred any
extraordinary or unusual risks. He engaged in no specu-
lation except the purchase of the village lots named,
in which he disposed of some of his unproductive per-
sonal property at a large price and which lots brought
nearly four-fifths of their purchase-price upon an exe-
cution sale. He became insolvent from reverses, with-
out intent to defraud and without fault except a
want of foresight. In an action by a judgment creditor
of the husband whose debt was contracted more than
three years after the conveyance to the wife, to set
aside the conveyance, held, that such conveyance was
not fraudulent as to creditors. There was no evidence
to show a fraudulent purpose in making it, and the
settlement upon the wife was not unsuitable or dispro-
portionate to his means. The cases of Savage v.
Murphy, 34 N. Y. 508; Case v. Phelps, 39 id. 164; Car-
penter v. Roe, 10 id. 227; Shand v. Hanley, 71 id. 319;
Mullen v. Wilson, 44 Penn. St. 413, distinguished.
Cases cited, Dunlap v. Hawkins, 59 N. Y. 342; Jencks
v. Alexander, 11 Paige, 623; Van Wyck v. Seward, 6
id. 62; Jackson v. Post, 15 Wend. 588; Phillips v.
Wooster, 36 N. Y. 412; Bank of U. S. v. Housman, 6
Paige, 526; Babcock v. Eckler, 24 N. Y. 623. Judg-
ment reversed and new trial granted. Carr v. Breese
et al., appellants. Opinion by Miller, J.
[Decided Sept. 21, 1880.]

[blocks in formation]

Ho

NER NOT LIABLE AS PARTNER. — Strang, Pratt and Ryley formed a partnership in the wool brokerage and commission business. At the time, a proposition was made to Snyder to become a partner in the firm. would not do so, but an agreement was made, with the knowledge of all the partners, between Ryley and Suyder, whereby Snyder was to take a share of Ryley's interest, viz., one-third of Ryley's share of the profits and losses in the business. No capital was contributed by any one, the business requiring none. Snyder, who 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 out as a partner. Held, that Snyder did not become a partner in the firm of Strang, Platt & Ryley, as ho had no interest in the profits of the firm as profits; but a right simply to demand of Ryley that he should account to him for one-third of his profits, accompanied with an obligation to pay one-third of his losses. He had no joint proprietorship with the members of the firm in the profits before division; was not entitled to an account as partner, and had no lien on the partnership assets. Grace v. Smith, 2 Wm. Blacks. 998, fol

FRAUDULENT CONVEYANCE SETTLEMENT BY HUSBAND ON WIFC WHAT DOES NOT CONSTITUTE FRAUD.-A husband is authorized to make a settlement of a suitable amount upon his wife from his property if he has no dishonest purpose in view; and such settlement the law will protect. A husband in prosperous circumstances and financially unembarrassed, owned real estate which sold for $17,200, and unproductive 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 and procured the deed to be executed in his wife's name. He paid on the purchase $10,600 from moneys obtained from the sale of his real estate, leaving the balance on mortgage upon the property conveyed to his wife. He at the time owed not to exceed $2,788.18. He used the balance of the moneys realized from the sale of his real estate in paying for stock and fixtures for a new place of business he had hired, in his business and in the purchase of some lots in a village adjoining the city where he resided. Ho afterwards paid in full every debt which he had contracted before the title to the property purchased was vested in his wife, The purchase of the house was made openly and without any concealment, the deed thereof immediately placed upon record; there was then no prospect or probability of financial disaster, and it did not appear that subsequent embarrassment and final insolvency in which the husband became involved were contemplated or expected when the conveyance was made to

participation in profits makes one not ostensibly so a partner. Cox v. Hickman, 8 H. L. Cas. 301, impugns if it does not overthrow this doctrine, and it held that those who share in the profits of a business are not liable as partners unless they carry on the business personally or others carry it on as their real or ostensible agents. Snyder was not liable under the doctrine in either of these cases. In this State the earlier English cases are followed. See Leggett v. Hyde, 58 N. Y. 272. But the participation in the profits of a trade which makes a person a partner as to third persons is a participation in the profits as such, under circumstances which give him a proprietary interest in the profits before division, as principal trader (Ex parte Hamper, 17 Ves. 404; Story on Part., § 49; Parsons on Part. 74), and the right to an account as partner and a lien upon the partnership assets in preference to individual creditors of the partner. Champson v. Bostwick, 18 Wend. 184; 3 Kent's Com. 25; 1 Smith's L. Cas. 984. Numerous exceptions to the rule have been

established. See Vandenburgh v. IIall, 20 Wend. 70; Burckle v. Eckart, 3 N. Y. 132; Richardson v. Hughitt, 76 id. 55. The contract of sub-partnership, which is a contract between a partner and a third person, whereby the latter is to share the profits and losses of such partner will not make the person a partner in the firm. Burnett v. Snyder, 76 N. Y. 344; Ex parte Barrow v. Rose, 252; Bray v. Fromant, Madd. 5; Killcock v. Greed, 4 Russ. 285; Frost v. Moulton, 21 Beav. 596; Colly on Part. (6th ed.), § 27. Snyder was not, in the case at bar, liable for the debts of the firm. Judgment reversed. Burnett v. Snyder, appellant, et al. Opinion by Andrews, J.

[Decided Sept. 21, 1880.]

NEBRASKA SUPREME COURT ABSTRACT.

CRIMINAL LAW -CONFESSION NOT PROOF OF CORPUS DELICTI. A confession is not alone sufficient to establish the commission of a crime. That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession, the confession being allowed for the purpose of connecting the accused with the offense. In People v. Hennessey, 15 Wend. 147, it was held that a confession of embezzlement by a clerk would not warrant a conviction, unless there was other evidence that an embezzlement had been committed. And in People v. Parker, 2 Park. Cr. 14, it was held, in an indictment for blasphemy, that there must be other evidence of the blasphemy than the mere confession of the accused. In the case of State v. Stringfellow, 26 Miss. it was held that a confession of a murder was not sufficient to warrant a conviction, unless the death of the person confessed to have been murdered was proved by other testimony. All experience has shown that verbal confessions of guilt are to be received with great caution. The danger of mistake from the misuse of words, the failure of the party to express his meaning, the misapprehension or want of recollection of the witness, or his zeal in pursuit of evidence, all admonish us to receive such testimony with great care. Priest v. State of Nebraska. Opinion by Maxwell, C. J. [Decided Aug. 31, 1880.]

STATUTE OF FRAUDS-DEFENSE UNDER, PERSONALOnly a party to a contract can avail himself of a defense founded upon the statute of frauds. Strangers cannot set it up. As is said by the court in Cahill v. Bigelow, 18 Pick. 369: "The effect of the statute is that the promisor, who would otherwise be liable to such an action, may avoid it." And also in Chicago Dock Co. v. Kinzee, 49 Ill. 289: "This statutory defense is personal, and cannot be interposed by strangers to the agreement. Like usury, infancy, and a variety of other defenses, it can only be relied on by parties and privies." See, also, Robison v. Uhl, 6 Neb. 328; Uhl v. Robison, 8 id. 272; Eiseley v. Malchow, 9 id. 174; McCormick v. Deurnmett, id. 384. Rickards v. Cunningham. Opinion by Lake, J. [Decided Sept. 1, 1880.]

[merged small][ocr errors][merged small]

Justice and equity forbid that one man's money shall be applied to the payment of another man's debts. On this is based the right of a vendor to stoppage in transitu, which arises solely upon the insolvency of the buyer. Where a vendor has delivered goods out of his possession, into the hands of a carrier for delivery to the buyer, if he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to the other people. It was long a mooted question whether the effect of this remedy of the vendor is a rescission of the sale, or a restoration of possession of the goods 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 before actual delivery of the goods into the buyer's possession, cannot be exercised in precisely the same mode by a lender of money or credit, yet for similar cause the lender ought to have as efficient a remedy until the money is paid to, or the credit is used by the borrower. The lender's remedy may have the effect of a rescission of the bargain. Goods can be held subject to a lien for the price agreed upon, and if disposed of for more than that, the buyer may have the gain or suffer the loss; but when a borrower has as little right to the money as a buyer has to the goods, it is impracticable to hold and dispose of the money with like result. Nor is there reason for so holding the value of the goods may increase or diminish, whereby the buyer may be gainer or loser by his contract-the value of money is fixed. Insolvency takes the pith out of the borrower's promise to pay, and if he has not yet received the money he should not take it. He did not get the credit in view of his bankruptcy. Dougherty Bros. & Co. v. Central National Bank. Opinion by Trunkey, J.; Mercur and Sterritt. JJ., dissented.

[Decided May 3, 1880.]

JURISDICTION-STATE COURTS HAVE, OF ACTIONS IN PERSONAM FOR MARITIME TORTS. State courts havo

jurisdiction over actions in personam for damages by reason of a collision between boats on the Ohio river, against the owners of the boat in fault. Section 563, U. S. R. S., prescribes in what cases the District Court shall have jurisdiction, and pl. 8 thereof declares, “of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a commonlaw remedy, where the common law is competent to give it." In Hine v. Trevor, 4 Wall. 570, and in The Belfast, 7 id. 644, brought in the State courts, the proceedings were in rem, and as there was no proceeding in rem at common law, the cases were held not to come within the saving clause of the act of Congress. But in Leon v. Galceran, 11 id. 188, it was held the State courts have jurisdiction in an action in personam. It is true that case was on a contract; but the act of Congress makes no distinction between a tort and a contract. The test is, whether the common law gives to a suitor the right of a common-law remedy, to redress the wrong which he has suffered. Whenever it does, the party injured may maintain such action in a State court. Brown v. Gilmore. Opinion by Mercur, J. [Decided Jan. 5, 1880.]

[merged small][merged small][ocr errors][merged small]

such grantee. Lowbor v. Connit, 36 Wis. 176; Hutchinson v. Railway Co., 37 id. 582. Plaintiff sold, assigned and delivered to defendant, for an agreed consideration in money, certain notes and mortgages of a third party, and all his interest in a contract for the sale of certain land by him to such third party, the assignment being in writing under seal, executed by the plaintiff alone, and containing a statement of the consideration, and stipulations for the security of the 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 of the sum named as consideration, and delivered to plaintiff his three promissory notes for the remainder. In an action on the notes, held, that defendant cannot prove a contemporaneous oral agreement, by which, in case the timber on the lands described in the contract should fall short of a certain amount, he was to be allowed at a certain rate per M. for the shortage, and that there was such a shortage. Hunt v. Adams, 7 Mass. 518; Curtis v. Wakefield, 15 Pick. 437; Moseley v. Hanford, 10 Barn. & Cress. 729; St. Louis Perpetual Ins. Co. v. Homer, 9 Metc. 39. Hubbard v. Marshall. Opinion by Lyon, J.

JOINDER- -IN ACTIONS FOR TORT-RELEASE OF ONE PARTY WHEN NOT RELEASE OF OTHERS. — - Although an agreement not to sue one of the several joint and several contractors, or joint trespassers, made upon a sufficient consideration, is not a technical release or discharge of the debt or damages, yet to avoid circuity of action, the party with whom the agreement has been made may set it up as a bar to an action brought against him alone for such debt or damages. Lacy v. Kyanstou, 2 Salk. 575; 1 Pars. on Cont. 28 n. (i). In the absence of any technical release or discharge, under seal, of one joint trespasser, the receipt of money from one, with an agreement not to prosecute him, discharges the others only where such money is received as an accord and satisfaction for the whole injury. Where it is received only as part satisfaction, it discharges the others only pro tanto, and the question of fact is for the jury; at least in all cases where the amount of the damages does not rest chiefly in tho discretion of the jury, but is the subject of proof and computation. Bronson v. Fitzhugh, 1 Hill, 185; Corks v. Nash, 9 Bing. 341; Brooks v. Stuart, 9 A. & E. 854; Brown v. Cambridge, 3 Allen, 475; McCrillis v. Hawes, 38 Me. 568; Gilpatrick v. Hunter, 24 id. 18; Eastman v. Greene, 34 Vt. 390; Ellis v. Betzer, 2 Ohio, 293; Knickerbocker v. Colver, 8 Cow. 111; Cooley on Torts, 139; Story on Cont., § 997; Miller v. Lovejoy, 3 Wall. 1. In an action for a trespass to real estate by entering thereon, and cutting and carrying away from it saw logs, the jury found the amount and value of the logs carried away, and also that plaintiff, in consideration of a certain sum of money (much less than the value of the logs) paid him by one who committed the trespass jointly with defendants, had agreed not to sue him therefor; that at that time the damages remained unliquidated; but that it was not understood between the parties to such agreement that said sum satisfied plaintiff for the damages sustained, but it was understood that he intended to look to the other joint trespassers therefor, held, that the action was not barred by such agreement. Snow v. Chandler, 8 N. H. 92; Spencer v. Williams, 2 Vt. 209; Chamberlain v. Murphy, 41 id. 110; Sloan v. Herrick, 49 id. 328; Mathews v. Chickopee Co., 3 Robt. 712; Bloss v. Pyenale, 3 West Va. 393; Shaw v. Pratt, 22 Pick. 307; Pond v. Williams, 1 Gray, 630; Bank v. Messenger, 9 Cow. 37; Line v. Nelson, 38 N. J. L. 358; Greenwald v. Milbank, 15 Abb. Pr. 378 (N. S.); Solly v. Forbes, 6 Eng. Com. Law, 551; Thompson v. Lark, 54 id.; Bank v. Curtiss, 37 Barb. 319; Gunther v. Lee, 45 Md. 60. Ellis v. Essau. Opinion by Taylor, J.

[blocks in formation]

FIRE INSURANCE-OWNERSHIP OF MONEY FOR INSURANCE AS BETWEEN VENDOR AND PURCHASER. — After the date of a contract for the sale of a house, and before completion of the purchase, the house was damaged by fire, and the vendors received the insurance money from the insurance company under a policy existing at the date of the contract. The contract contained no reference to tho insurance. In an action by the purchasers against the vendors, held, that the purchasers were not entitled to recover the moneys from the vendors, or to be allowed to have the amount deducted from their purchase-money, or to have the moneys applied in reinstatement of the premises. Eng. High Ct. of Just., Ch. Div., April 19, 1880. Rayner v. Preston. Opinion by Jessel, M. R.

LIFE INSURANCE-. FORFEITURE BY FAILURE TO PAY PREMIUM WHEN DUE- RELUCTANCE OF COURTS TO

---

[ocr errors]

ENFORCE FORFEITURES. A life insurance policy, containing a provision that the same should cease and determine" if the premium should not be paid when due, is not forfeited by the failure to pay such premium on the day it is due, where the company neglected to inform the assured of a change in the agent authorized to receive the same after they had adopted a rule to give such notice in all cases, and the assured tendered the premium in due season to the former agent of the company, and was unable to find the new agent after reasonable inquiry. In such case the assured was entitled to a reasonable time before forfeiture could be declared. The failure to pay such premium for sixty days after it was due was not, under such circumstances, an unreasonable time, where the company had waived the time of payment in the previous year, and it did not appear at what time, if ever, the assured was informed of the place of payment. In Insurance Co. v. Eggleston, 96 U. S. 572, Bradley, J., said: "We have recently, in the case of Insurance Co. v. Norton (96 U. S. 234), shown that forfeitures are not favored in the law, and the courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or cause of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, although it might be claimed under the express letter of the contract." And it was accordingly in that case held, that where an insurance company had been in the habit of notifying the assured of the time when and place where premiums were to be paid, he had reasonable cause to expect and rely on receiving such notice, and that the company was estopped from setting up that the policy was forfeited by the non-payment of a premium of which no such notice was given. The following authorities show the reluctance of courts to enforce forfeitures in this class of cases, and support the general views expressed: Insurance Co. v. Wolff, 95 U. S. 326; Insurance Co. v. Pierce, 75 Ill. 428; Thompson v. Insurance Co., 52 Mo. 469; Mayer v. In

« PreviousContinue »