payment, has put the vendee into possession under the contract, and induced him to make valuable improvements, and afterward by collusion or other unfair practice, regains the possession. Harris v. Bell, 10 S. & R. 39; Dixon v. Oliver, 5 Watts, 509; Gregg v. Patterson, 9 W. & S. 197; Wykoff v. Wykoff, 3 id. 481; D'Arras v. Keyser, 2 Casey, 249. Eberly v. Lehmam. Opinion by Mercur, J.

[Decided Oct. 4, 1882].

RECENT ENGLISH DECISIONS.

WILL-CONSTRUCTION OF-WHEN DIVORCED WIFE TAKES LEGACY TO “WIFE."-In October, 1879, T. B. and E. C. H. were married. In April, 1881, a decree absolute was made annulling the marriage on the ground of T. B.'s impotency; whereupon a sum of 6.000 was paid by him to her in pursuance of certain arrangements, and acknowledged by her in writing, as "the provision to be made for me consequent on the said decree being made absolute." In July, 1881, T. B, died, having by his will, dated December, 1879, left his residuary estate to trustees "upon trust to pay to my wife, E. C. B., within one month after my decease a legacy of 2001., and in addition thereto to pay to my said wife, so long as she shall continue my widow and unmarried, one annuity of 300l., or otherwise in lieu and in substitution of the said annuity, at the option of my said wife, if she shall prefer it, a legacy of 2,000l. And I direct that the provision hereby made for my said wife shall be in lieu and satisfaction of any dower or thirds to which she might be entitled out of my said estate." Held in an action brought by E. C. H. against the trustees for administration of the estate (1) that in spite of the misdescription and of the provision" of 6,000l., she was entitled to the legacy of 2001.; (2) that never having been the tesator's widow, she had no right to the annuity; and (3) consequently no right to any thing in lieu of, substitution for, or preference to it. Ch. Div., Jan. 23, 1883. Re Boddington. Opinion by Fry, J. (48 L. T. Rep. [N. S.], 110.)

FIRE POLICY FIRE CAUSED BY EXPLOSION. - A policy of insurance against fire contained a condition that if the premises insured "be damaged or destroyed by the bursting of a boiler, or by explosion from any cause, this policy shall be null and void the instant the casualty by explosion occurs." Held, (1) The word "casualty" refers to the damage or destruction of the premises mentioned in the condition, and not to a fire caused by the explosion. (2) The condition is valid and unambiguous; and an explosion and consequent damage to the insured premises terminates the policy. Wisconsin Sup. Ct., Nov. 21, 1882. Waldeck v. Springfield Fire & Marine Insurance Co. Opinion by Lyon, J.

FIRE POLICY SALE UNDER FORECLOSURE NOT CONFIRMED, NOT CHANGE OF TITLE. (2) Where an order confirming a sale, made under a decree of foreclosure, to a mortgagee who is a party, is at the same term vacated and the sale set aside for want of notice as required by statute, the insurable interest of the mortgagor in possession is the same in the property as if such sale and confirmation had not been made. (1) Where a loss of property covered by insurance in favor of the mortgagor occurs after such confirmation and before the order was vacated and the sale was set aside, the insurable interest, which the mortgagor in possession had, was not divested by such unauthorized sale and confirmation. See McBain v. McBain, 15 Ohio St. 337; Hubbell v. Broadwell, 8 Ohio, 120. Mt. Vernon Man. Co. v. Summit County Ins. Co., 10 Ohio St. 347, distinguished. Ohio Sup. Ct. Richland County Mutual Insurance Co. v. Sampson. Opinion by Johuson, J. (38 Ohio St. 672).

NEW BOOKS AND NEW EDITIONS.

XLIV AMERICAN DECISIONS.

This excellent series is making good progress. The present volume contains selections from 27 volumes of State reports, coming down to 1846. The notes are generally judicious, and frequently quite exhaustive; one on seduction covers above 16 pages.

ance

INSURANCE LAW.

FIRE POLICY STATEMENTS OF APPLICANT AS TO TITLE. In a written application for a policy of insurwere the following questions and answers: "Question. What title has the occupant of these premises? Answer. Warranty deed. Q. Number of acres? A. 160." By the terms of the policy the answers were made warranties. The applicant had in fact warranty deeds of the whole 160 acres, but 80 acres thereof had been deeded to him without consideration, merely for the purpose of enabling him to sell and convey the same for the owner. The deed was absolute on its face, and there was no writing executed by the grantee declaring the trust. Held, that the answers were responsive, sufficient, and true. If the insurer desired to know whether there were any outstanding equities upon the premises he should have interrogated the applicant further in respect thereto. Wisconsin Sup. Ct., Nov. 21, 1882. Pavey v. American Insurance Company. Opinion by Lyon, J.

XIV FEDERAL REPORTER.

We take pleasure in observing the continued excellence and usefulness of this publication, which we have often commended, and which fills a unique and important place in current legal reporting.

COURT OF APPEALS DECISIONS.

handed down at IE following decisions were THE Saratoga Springs, Tuesday, June 19, 1883. Order affirmed with costs-Elisha G. Selchor, et al., respondents, v. James S. Baker, et al., appellants.

-Motion to amend remittitur granted, so as to allow costs to respondent, Hulbert, and one bill of costs to respondents Leake and Hathorn together - Rensselaer Riley, appellant, v. John C. Hulbert, et al., respondents.

A young Maryland lawyer writes us: "In your last journal the case of Quinn v. Hulburt, Supreme Court of Vermont, 1883, 15 Rep. 664, is mentioned. Permit me to ask your opinion in regard to the propriety of a court instructing a jury as to the weight of testimony being impaired by the manner in which it is given. Is not that a matter to be left entirely to the jury after the court has pronounced the witness competent? While we have a jury system is it not all important that as to matters of fact the jury should be untrammelled, and neither by word nor look from the court led to judge of the facts otherwise than just as they are presented? After the court said that the witness was a legal witness, was not everything else matter of fact for the jury alone? And for the purposes of evidence what has the court to do with any disability, peculiar or ordinary, after the law, as laid down by that court, permits the witness to speak? Do not the courts generally take a little too much upon themselves, and do not juries have to shoulder a good deal for which they are not really to blame?" We think the direction of the court was right in the case referred to. The witness was dumb, and it was held that the trial court should have called the attention of the jury to the disability as affecting the weight of the testimony. Such a witness of course could not be so effectually cross-examined as one who could talk, and it was proper to point that out to the jury. The mere competency of a witness does not debar the court from commenting on facts which ought to or may affect his credit or intelligence, such as weakness of memory, interest, and the like. For example, a felon who turns State's evidence is competent, and the jury may credit him without corroboration, but the judge certainly may, and perhaps is bound to caution the jury against believing him without corroboration. So a young child understanding the nature of an oath is a competent witness, but the judge certainly may caution the jury about the weight to be attached to its testimony. As a rule, we do not think judges "take too much upon themselves," although some do. An advocate judge is detestable.

The governor of Pennsylvania has vetoed a bill which proposed to allow suitors to withdraw their causes from the courts and submit them to a referee and a jury. We have not seen the bill in question, nor the governor's veto, but as we understand the matter, the governor, we think, is quite right. We understand the bill proposed to allow the parties to any particular suit to have a particular jury, drawn at the public expense, and to be presided over by a referee of their own selection. This would be set

and would have a tendency to bring the ordinary tribunals into contempt. If parties do not want a jury, but prefer a judge, their course is easy. So if they prefer a referee, or an arbitrator, or twelve arbitrators, or thirteen arbitrators. But they should themselves pay for their preferences. The public furnish a judge and a jury, and should not be called on to furnish juries to order to suit the whims and caprices of parties, or enable them to shirk a judge whom they do not like. By the way, this bill is a significant commentary on the amount of public trust that would probably be felt in judges if juries were abolished.

In the case of Hides v. Hides, 65 How. Pr. Rep. 17, there is enough of the curious and the funny to entitle it to particular mention in the humorous phases of the law. This was an action to set aside a marriage and a conveyance of property to the wife on the ground of fraud. The man was old, feeble, deaf, childish, and a fervent believer in spiritualism. The woman pretended to be "very modest and bashful," and a clairvoyant physician able to cure the old man's deafness. So she "maniputated his head, put her fingers into his ears," and held his jaw. After a course of this treatment, she told the old man that the spirits said they must be married within two weeks or something dreadful would "step in between them." She also told him she was from one of the first families of Ireland (it does not appear that she claimed descent from an Irish king), that "her character was as pure as the white snow," and that her relations abroad were very rich. The long and short of it is that by means of these representations — all false — she prevailed on the old man to marry her and deed to her property worth $25,000, including a mineral spring which the spirits had discovered to him. The old man came to his senses after the honey-moon, and prayed to be released on the ground of fraud. The referee granted his prayer, putting his decision solely on the ground of undue influence by means of the spiritual delusion, which he pronounced an "atrocious fraud." The court at special term, Landon, J., confirmed this judgment, observing: "That his mind was predisposed by the faith of many years to a readiness of belief in the truth of such representations made him, it is true, the more easily a dupe and a victim, but it does not make the grossness of the deception less nor accord to the impostor any protection. * * * Our law prescribes no religion, but tolerates all and condemns none, and therefore the plaintiff's case suffers no detriment because his religious belief exposed him to the arts of the defendant.' So it seems if we were called on to construct a syllabus for this case we should have to do it as follows: In an action to set aside a marriage for fraud, practiced by means of the plaintiff's belief in spiritualism, the doctrine of contributory negligence does not apply, any more than in an action of seduction.

IN

NOTES OF CASES.

N Van Liew v. Van Liew, 36 N. J. Eq. (9 Stewart), 637, a husband and wife died within a few hours of each other, intestate and without issue. The wife had a separate estate and an income therefrom. A large sum of money in bank-bills was found, part in a pocket-book marked with the initials of the wife's name, part in another pocket-book marked with her father's name, also some gold coin in a bag, and some silver lying loose all secreted in a trunk, marked with the wife's name, to which both had free access, the key usually being kept by the wife. The amount in the wife's pocket-book was about half the entire amount. Their deeds, bonds, notes, receipts, insurance policies, etc., were also found in the trunk. There was no memorandum or other satisfactory evidence to show the amount contributed by either one to the money so found. Held, that it must be equally divided between their respective representatives. This was by the Court of Errors and Appeals, unanimously reversing the decree of the chancellor. The court observed:

Under these circumstances, there is no presumption of separate ownership either in husband or wife from possession. The only fair and reasonable inference is that the moneys of these parties were mingled together in the trunk with the knowledge and assent of both. There is no allegation or pretense of fraud in either party, or that the commingling was the result of negligence, inadvertence, or accident. It is the undisputed rule both of the civil and the common law that where the goods of two or more persons are so intermixed that they can no longer be distinguished, the owners, if the intermixture be by consent, have an interest in common in proportion to their respective shares. Inst. 2, 1, 27, 28; 2 Bl. Com. 405; 2 Kent Com. 364; Story on Bailm., § 40. This then is the case of a common fund, from which both parties were entitled to take out their respective contributions, and the representatives of each have now the same right, provided the several contributions of their respective intestates to the common fund can be definitely ascertained. But upon this vital point the case presents no satisfactory testimony, and the little we have is of a negative rather than a positive character.* * * There being thus no satisfactory evidence of the amounts respectively contributed by the parties to the common fund, and no certain basis for its division, and each equally culpable for not keeping some account or statement of their respective interests, the only equitable solution of the difficulty is the equal division of the fund in controversy. This view of the case is further supported by the following considerations: Where two persons hold either real or personal estate in joint tenancy or in common, the presumption, in the absence of evidence to the contrary, is that they hold in equal shares or moieties. If two persons are shown to be partners they are presumed to share equally in profits and losses until the contrary be shown. The commingling of goods

by consent necessarily presupposes some agreement or understanding between the parties as to the terms upon which the intermingling was made. It may reasonably be inferred from the relations between these parties, from the manner in which they lived, from their confidence in each other, and from the fact that neither kept any account or statement of the transactions, that the parties themselves considered this a common fund in which each had an equal interest and to which each contributed about an equal share. Probably no division was ever contemplated or thought of by either. The equal division of the fund is also sanctioned by the familiar maxim that 'Equality is equity.' The fund belongs to two parties. There is no certain or satisfactory basis for a division of the mass upon any other principle, and an equal division will best subserve the ends of justice and violate no settled rule of law."

* * *

In McMahill v. McMahill, 105 Ill. 596 (Mr. Freeman's advance sheets), it is held that a widow's homestead right cannot be barred by an ante-nuptial contract. The court said: "Only two modes are provided by which the homestead right or estate may be extinguished: First by a release, waiver or conveyance in writing, subscribed by such householder and his wife, or her husband, if he or she has one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged; or, second, by conveyance of the premises, with abandonment or giving up of possession. It is further provided in the act concerning conveyances, in force July 1, 1872, that no deed or other instrument shall be construed as releasing or waiving the right of homestead, unless the same shall contain a clause expressly releasing or waiving such right, and in such case the certificate of acknowledgment shall contain a clause substantially as follows: 'Including the release or waiver of the right of homestead,' or other words which shall expressly show that the parties executing the deed or other instrument intended to release such right. These provisions of the statute show that homestead is a right secured to both husband and the wife, and is one of which they cannot be dispossessed except by their voluntary action in the mode pointed out by statute. It is protected by the strongest guaranties of the law, and no release or waiver of such right shall be construed as valid unless acknowledged as required by the Conveyance act. After her marriage defendant enjoyed the homestead of her husband, and after his death the law continued in her favor so long as she should choose to occupy it. It is obvious she could not contract, after marriage, by any written instrument not executed in conformity with the statute, to release her homestead, that would be binding upon her after the death of her hnsband. How, then, could she do it before marriage? If a contract to release homestead, not conforming to the statute, made after marriage, is not valid, certainly such a contract made before marriage,

for still more cogent reasons, would be without binding obligation. The policy of the law is, as this court has had frequent occasion to declare, to preserve the homestead for the benefit of the party or parties entitled to it. It has been said the statute was enacted from motives of public concern, and that parties will not be permitted, by ante-nuptial agreements, to annul its beneficent provisions designed to subserve the common welfare. In McGee v. McGee, 91 Ill. 548, it was held that the homestead right could not be barred by an ante-nuptial contract. In that case there were children of the parties, but it is apprehended that fact would not change the basis of the decision. The principle is, the statute secures the homestead to the husband or wife surviving, and such right can only be extinguished in the mode provided by the statute. It can not be done by an ante-nuptial agreement, for the simple reason that is not one of the modes provided by statute by which such right may be extinguished. In Phelps v. Phelps, 72 Ill. 545, it was held the ante-nuptial agreement between the parties barred dower, but did not prevent the widow from sharing in the provisions the law made for the benefit of the family and herself. It was for this reason the provision the law made for her and the family could not be abrogated by private contract. It was thought to be a matter of public concern, for which the Legislature could well provide for its permanent security." Sheldon, Scholfield and Craig, JJ., dissented, holding that the statutory provisions applied only to releases made during the marriage.

As the sky-rocket season is approaching, the case of Ball v. Town of Woodbine, Iowa Supreme Court, June 5, 1883, 15 N. W. Rep. 846, will be of interest. It was there held that the town was not liable to a person injured by the discharge of a rocket by officers of the town in violation of an ordinance of the town. The court said: "It is urged that the fireworks which caused the injury in this case were a dangerous public nuisance, which the officers of the city actually participated in maintaining. It can make no difference who were the individuals who violated the city ordinance. A city is no more liable for the consequences of a violation of an ordinance by its mayor or council, as individuals, than it would be if the illegal act were done by a private citizen. In Morrison v. Lawrence, 98 Mass. 219, it was held that the city was not liable to a person who was wounded by a rocket which was purchased by a committee of the city council, and negligently fired under their direction in celebrating the fourth of July. This ruling was made notwithstanding the fact that it appeared that the city paid for the fireworks purchased by the committee, but it did not appear that any one had been empowered to purchase fire-works on behalf of the city. We think the case cited involves the same question as that presented in the case at bar. Suppose that a number of persons should engage in shooting at a mark or coasting upon a street within an incorporated town

in violation of the ordinances of the town, and the officers of the town should know of the illegal acts, and permit them to proceed to the injury of some one; it appears very plain to us that the city should not be held liable. As in some degree supporting the views herein expressed, see Ogg v. Lansing, 35 Iowa, 495; S. C., 14 Am. Rep. 499; and Calwell v. City of Boone, 51 Iowa, 687; S. C., 33 Am. Rep. 154." To the same effect are Borough of Norristown v. Fitzpatrick, 94 Penn. St. 121; S. C., 39 Am. Rep. 771; Boyland v. Mayor, 1 Sandf. 27.

In Joslin v. Grand Rapids Ice Co., Michigan Supreme Court, June 6, 1883, 15 N. W. Rep. 887, it was held that a master is liable for the negligent driving of a servant, even while the latter is acting temporarily for a third person who has hired a team and its driver from the master; and it is immaterial that the person hiring expressly asked for the services of this particular driver. The court said: "The ground of the recovery is that Scott, the driver, was at the time of the injury in the service of the defendant, and that therefore the defendant was liable for his negligence on the doctrine of respondeat superior. The point of chief contention in the case is whether Collins or the defendant was in law, for the purpose of the application of this doctrine, to be regarded as the master. Defendant employed and paid Scott, and we are to suppose had the power to direct where and for whom his services should be given, and to discharge him for miscon duct or incompetency. But on the other hand, he was engaged in the business of Collins for the day, and Collins had the right to direct his actions, and must be assumed to have sent him with the team along the street where the collision occurred. The facts make the case unusual, and there is ample room for difference of opinion respecting the application of the general principle. But the case is directly within Quarman v. Burnett, 6 M. & W. 499, which, whether correctly decided or not, has been too often and too generally recognized and followed to be questioned now. In that case it appeared that the owners of a carriage were in the habit of hiring horses from the same person to draw it for a day or drive; the owner of the horses providing a driver. This driver on one occasion causing injury by his negligence, the owners of the carriage were held not responsible for this injury. And it was further held to make no difference that the owners of the carriage had always been driven by the same driver, he being the only regular coachman in the employ of the owner of the horses; or that they had always paid him a fixed sum for each drive; or that they had provided him with a livery which he left at their house at the end of each drive; and that the injury in question was occasioned by his leaving the horses while so depositing the livery where he was accustomed to leave it. Baron Parke in that case says: 'Upon the principle that qui facit per alium facit per se the master is responsible for the acts of his servants; and that person is undoubtedly liable who