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On the 29th of October, 1872, she wrote that this agent was at a distance from to her husband, saying that "certain the writer; that this letter was taken by facts had come to her knowledge which would prevent her returning to his house, and she was glad, therefore, that he proposed that they should live separate."

The negotiations having failed, the present suit was brought, in the Court of Sessions, for a judicial separation by reason of the adultery of the husband, and praying also for alimony.

The husband denied the adultery, and set up the use by the wife of narcotics and alcoholic liquors to excess. The Lord Ordinary held that the adultery was not proved, and found for the husband; but the wife appealed to the First Division, and the adultery was found to be proved, the separation was ordered, and £100 yearly was allowed for alimony, payable half-yearly. The Court further found. the wife entitled to the custody of the children during their respective pupilarities, and required the husband to deliver them up to her forthwith, and to pay her £25 per annum for each of them.

that

appellant to his solicitor as soon as he rereceived it, and before there was any accusation against him, and that although he knew of the girl's pregnancy, and had sent her to Ireland, he never mentioned to his wife, when he met her, that the children's nurse had gone away.

The husband alleged that his wife was satisfied that the imputations against him were groundless, whilst he had concealed the facts from her.

The husband appealed.

The Lord Chancellor (Lord Cairns)

said:

I am at a loss to understand how any other conclusion upon these facts could be arrived at than that the adultery had been established.

By the Act of Parliament the Court is given the widest and most general discretion as to the disposition of the children, and since I find nothing to justify the charge of bad habits in the wife, and nothing to show that she is an unfit person to have charge of the girls, I think she should have charge of them.

And since the father is ardently attached to his children; is in middle life, and in established business, and that before this affair he had borne a high character for uprightness and morality, I think he should have the boys.

The evidence of the adultery was, that there was no male person about the house but the appellant; that the girl was not in the habit of associating with any male acquaintances out of doors; although there was the greatest anxiety on the part of the appellant to trace her in all her movements about the time the There should be an opportunity of acpregnancy would have occurred, it was not suggested that any other person cess to the children on both sides. The than the appellant could have been the interlocutor should be changed in this father of the child; that on the pregnancy of the girl being discovered, the appellant was most anxious to get a let-the respondent, since she could not be made to bear costs as against her husband.

ter from her that no one at Nyeholm (his residence) was the child's father; that although the girl at first demurred to writing such a letter, she was persuaded to do so by the appellant and by his agent, a female relative, who accompanied the girl to her grandmother's in Ireland, whence she wrote the letter and gave it to the appellant's agent, when, by the terms of the letter, it would be supposed

regard.

And the costs should be awarded to

Lord O'Hagan said: the corroboration of the charge of adultery is strong and persuasive, and I concur on the question of fact with The Lord Chancellor.

As to the children, the father's guardianship of his child is high and sacred; our law holds it in much reverence, and it should not be taken away from him

gage.

The plaintiff Watkins executed the instrument in December, 1869, upon the representation that that would facilitate the matter, he being at some inconvenient distance, and left it with Collins, his cotrustee.

unless for such gross misconduct on his engrossed on the indenture of the mortpart as would lead to the injury of the health or the morals of the children. There seems to be no such danger in this case, for the appellant, except in this instance, uad a high character. We have jurisdiction to dispose of the children, and I agree with the Lord Chancellor as to that disposition, since we must be controlled not by strict, hard rules of practice, but by the real interests of the parties whom our decision shall affect. And it may be that by such a disposition, notwithstanding what has happened, that, through the children, the husband and wife may be brought together again.

Lord Selborne said: I agree as to the proof of the adultery.

I think that the girls should go to the mother; and that there is nothing in the general character and life of the father to take away his guardianship of the boys.

The views of The Lord Chancellor were adopted and an order entered to that effect.

Mrs. Symington (the wife), respt., v. Mr. Symington (the husband), applt.

L. R. House of Lords, 2 Scotch Appeals, pp. 415-430. March 18, 1875.

ESCROW.

Nothing further was done until April, 1872, when Skyrnie, in company with Watkins, called on Collins, and told him that the defendant was about to sell the property, and intended to pay off the mortgage in the following week, and requested Collins to execute the reconveyance, so as to enable him, Skyrnie, to take it to London, that he might have it stamped without paying the penalty for not stamping, by making an affidavit explanatory of the omission. Collins consented, and Skyrnie took the conveyance with him, after having undertaken in writing to return it in two days. It was returned, but the money was not paid.

In April, 1873, Skyrnie died and was then discovered that defendant had paid him the £2,000 which Mr. Skyrnie had fraudulently misapplied. The interest had regularly been paid to Skyrne by permission of the trustees, so that they were not apprised by the non-payment of the interest of the condition of things.

A suit to foreclose was brought and the question to be determined was, whether or not the reconveyance was delivered or was an escrow.

Held, That there was no delivery. The Delivery. Stranger. Sheppard's Touch- execution was only operative on certain

stone explained.

The defendant made his mortgage in 1866 to plaintiff's for £2,000. The money was part of the trust fund of a marriage settlement executed on the marriage of John Henry Skyrnie, a solicitor, under which the wife took the first life interest in the settled property.

In 1869 Skyrnie, who was defendant's solicitor, told plaintiffs that defendant would pay off the mortgage and take a reconveyance, The reconveyance was

conditions. In Collins' hands it was not executed by him, and Skyrnie held it in escrow for all the parties interested.

The rule stated in Sheppard's Touchstone, that an escrow must be delivered to a stranger, means only that it cannot be delivered to the grantee or to the party who is to have the benefit of the instrument.

Watkins v. Nash.

L. R., 20 Equity Cases, pp. 262–267.
Opinion by Hall, V. C, May 5, 1875.

FALSE REPRESENTATIONS.

Mining Company. Suit against Trustees. Who is liable. Jury.

This action was brought to recover damages for alleged fraudulent representations, by which the plaintiff was in. duced to purchase certain shares of the Central Mining Co. of Colorado, of which company the defendants were trustees. The alleged fraudulent representations were contained in a prospectus issued ostensibly by the company, and bearing upon its title page the names of the trustees. The prospectus was prepared by the defendant A., upon the suggestion of the defendants McV. and G. It did not appear that the other defendants took any part in the preparation thereof, or knew of its existence. The evidence tended to show that the statements in the prospectus as to the character, development and value of the mining lands owned by the company were false, to the knowledge of those who prepared it, and that plaintiff purchased stock in reliance thereon. Upon the trial plaintiff was nonsuited.

Held, That the nonsuit was error as to the defendants McV., G. and A.; that the testimony was sufficient, as to them, to put them to their defense, and to raise a question of fact for the jury.

Morgan, applt. v. Skiddy et al., respdts.
N. Y. Court of Appeals.
Opinion by Andrews, J. Case not yet
reported.

HAY AND STRAW, BALED.-SALE OF.

NEW YORK.

SECTION 1. It shall not be lawful in the State of New York to sell, or to offer

for sale, baled hay or straw, with more than twenty pounds of wood to a bale of two hundreds or upward, or more than ten pounds of wood to a bale of less than two hundred pounds.

SEC. 2. The gross weight shall be plainly marked on each bale, and no person shall sell it, or offer it for sale, if it

weigh less than the gross weight after deducting five pounds for shrinkage.

SEC. 3. A violation of the preceding sections shall be a misdemeanor, to be prosecuted in the ordinary course of proceedure in the city or town where committed, and shall be punished by a fine not exceeding three dollars, for each bale so sold, and the cost of the proceedings, and to stand committed until said fine is paid.

Passed April 26, 1875.

INSURANCE, LIFE. Application not a part of the policy. Statements and representations in an application not warranties. Warranty and representation in insurance defined and distinguished.

On the trial of the cause the defendant took exception to the evidence, to the charge of the Judge, and to his refusals to charge:

1. The policy, dated November 10, 1871, was offered in evidence, but the defendant objected to it unless the application was made a part of it.

2. Dr. Greenleaf, a witness, who had attended the insured, was asked by the plaintiff, on cross-examination, whether the assured recovered from a certain

sickness, to which he replied that he did. Defendant objected, but was overruled and excepted.

3. Defendant offered to show that the plaintiff, before the death of the assured, and prior to the date of the policy, had a conversation with one Aldrich about the assured.

The question was overruled and defendant excepted.

The Court was asked to charge the jury, that

(a.) If the assured had suffered from any disease of the liver before the 4th of November, 1871; (b.) If he had been seriously ill before that date;

(c) If he was not in good health at

that date, the plaintiff could not subscription of the policy." (62 Barb.,

recover.

(d.) If he had a chronic affection of the liver, he was not in good health within the meaning of the law, and the plaintiff could not recover. (e.) That the declarations and statements of the assured in the application for insurance, are warranties, and, if any one of them was fraudulent or untrue, the plaintiff could not recover, being warranties;

(f.) That if the assured made untrue answer to any question in the application, the facts in respect to which, from their nature, must have been within his personal knowledge, then, in law, his representations were fraudulent; (g.) That, in order to make the statements or representations fraudu lent or untrue, so as to avoid the policy, it was not necessary that they should have been made with the intention to mislead or defraud;

644.)

Cushman, Adtrx., v. The United States
Life Insurance Company.

N. Y. Supreme Court, Gen'l T., 3d
Dept., June, 1875.
Opinion by James, J., Learned, P. J.,
and Boardman, J., concurring.

INJUNCTION.

User of accommodation bridge, how limited. Right to build private road. Effect of undertaking not to repeat trespass on new trespass.

The plaintiff was incorporated in 1791, with power to purchase lands for a canal and certain works, and, also, to erect and maintain such bridges and other works as the Company should think requisite and convenient for the purposes of such navigation, and for the carrying and conveying goods and other things to and

from the canal.

It was also enacted, that if the company was about to destroy or impede any carriage road, public or private, that it should, before taking any steps, make a good road conveniently near.

(h.) That it was not necessary that these statements and representations should have been material; It was also enacted, that all persons if untrue, they barred a recovery-should use the private roads and ways of The Court ruled against the defendant the company for horses, cattle and caron all these points, and exceptions were riages, for conveying goods and other

taken.

Held, There was no error: 1. For there was no warranty in the application, or the policy, as to the truth of the answers to the several interrogatories in application.

2. "A warranty in the law of insurance differs from a representation in this: the former is a stipulation inserted in writing on the face of the policy, or in another writing referred to in the policy, and made a part of it, on the literal truth or fulfillment of which the validity of the contract depends: a representation is a verbal or written statement made by the insured to the underwriter before the

things to and from the canal, and any wharfs, quays and landing places belonging thereto, except the towing path, without paying therefor; and with power to navigate on the canal, and to use the wharfs, quays and landing places for loading and unloading goods, and the towing paths for hauling and drawing boats and barges, on the payment of the granted rates.

It was also provided, that for fencing the towing paths, for gates and stiles, for bridges, culverts, arches, etc., that the company should not make the canal or any feeder in or across any common, highway, public bridleway or foot path, until,

they were again laid down by defendant, and in December, 1873, plaintiff commenced an action in the Common Pleas for trespass.

at its own expense, it had made and per- moved the rails and tram-plates, and fected such bridges, etc., and all these works were to be kept in good repair; and in case of refusal or neglect by the company, private persons were authorized to construct and maintain all necessary means of transit.

Defendant pleaded their right to carry minerals over the bridges, for the better and more commodious use of their land, through which the canal was constructed, and for that purpose to construct and maintain a tramway upon, across it.

over and

And it was provided, further, that should the bridges, etc., erected and maintained by the company be insufficient for the commodious use and occupation of the respective lands, grounds, mills and hereditaments of any person or persons, Issue was joined, and in May, 1874, an that such person or persons, with the con- order was made that defendant should sent and approbation of the company, withdraw its plea withdraw its plea "on payment of £1 or, on their refusal, with the consent and damages, and costs to be taxed, all furapprobation of certain commissioners, ther proceedings to be stayed, the deshall have power to erect and maintain fendant undertaking not to repeat the such suitable and commodious means of trespasses, and also forthwith to put transit, but not to interfere in building plaintiffs' bridge and that portion of the unreasonably with the company. land in the declaration mentioned adjoinThe canal was constructed through the ing the bridge in the state they were preYnisarwed farm and across vious to the tresspasses complained of." a private road from the farm house to the turnpike And an undertaking was given not to road from Neath to Glynneath, and the repeat the trespasses. company built a bridge when this road was cut by the canal; and it had been used ever since by those entitled to use it in going to and from the farm house and the turnpike.

In 1871 the owner of the coal pits on the Ynisarwed property, which had been worked for fifty years, the coal being shipped by the canal, commenced laying a tramway across the bridge to connect the tramway leading to the canal with a tramway on the other side of the bridge leading to the railway, for the purpose

But in 1875, defendant again laid down a tramway across the bridge, and used it for carrying coals and minerals to the Vale of Neath Railway. On this occasion they did not disturb the fabric of the bridge, or make any holes in the soil, but laid fresh material on the surface and laid rails on this fresh material.

They claimed that this was a simple exercise of their right of user of the bridge without detriment to the property of the Canal Company.

The plaintiff applied for an interim inof taking the coals to the Vale of Neath junction, which was granted, without reRailway, which ran outside of the former quiring an undertaking from plaintiff as property and beyond the turnpike. The to damages.

plaintiff threatened legal proceedings and the work was stopped.

Defendant appealed.

Held, The action at law having been In 1873 the defendant, a steam col- determined against the defendant, and liery company, leased the coal property submission having been made thereto, and recommenced making a tramway and the undertaking having been given. upon the bridge and the approaches not to alter the bridge, not to do, in fact, thereto, and part of the fabric of the what they are doing. bridge being excavated and holes dug in the soil of the approaches. Plaintiff re

If the defendant has any good reason to set aside the undertaking, it must

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