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Entered, according to act of Congress, in the year eighteen hundred and seventy-seven,
BY WEED, PARSONS AND COMPANY,
THE ALBANY LAW JOURNAL:
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
sons stand in as good a situation to demand compen
sation as the companies do, if not in a better one, ALBANY, JANUARY 6, 1877.
though it might be a matter of difficulty to determine, in every instance, who justly belonged to the
class mentioned. If all who would assert themselves CURRENT TOPICS.
to belong thereto were compensated, we think there THE court to determine upon what are known as would be but little left for the insurance interest to Alabama Claims closed its business on the 29th
dispute about. The fact is that the money was ult., leaving undistributed over one-half the money
awarded by the Geneva arbiters to pay losses caused received under the award of the Geneva tribunal.
by the Alabama, and if an individual did not, in This circumstance gives great dissatisfaction to
fact, directly lose by her operations, he is not enmany, especially to those who are interested in the
titled to any thing from the award, either equitably insurance companies that took war risks, and were
or otherwise. If the doctrine of subrogation should compelled to pay for vessels lost. It seems that
be applied here, the result would be in favor of the when the award was estimated at Geneva, a list was
claims of the insurance companies. According to made covering all the losses of private citizens that
the opinion of a former distinguished minister to were shown to have been caused by the privateer England, as the matter now stands, the Geneva Alabama, without any regard to whether there was
arbiters appear responsible for “cheating the British insurance upon the property lost. The court pass
government out of a large sum, which the American ing upon the individual claims, have merely paid
government declares was not properly claimed, and those of persons who were not re-imbursed by the
yet which it declines to return to its rightful owners." insurance companies, but the claims of the insurance companies themselves for losses paid were not The fact is that the English government were allowed, the ground being that the transactions of adjudged to be liable for the losses caused by the the Alabama and other vessels of the same character | Alabama; these losses amounted to a certain sum rendered the marine insurance business profitable which has been paid. Out of that sum private rather than otherwise. The question is one of con- owners who have had property destroyed by the siderable difficulty. On the one hand, it would Alabama are entitled to compensation, but a portion appear that the losses which really fell upon the in- of these have been repaid their losses already. The surance companies had been presented to the Eng- companies which repaid them, although perhaps as lish government, allowed by it, and paid in trust for
a whole they really did not lose any thing by the the losers to the United States, and that these com- existence of privateers preying upon American companies were, in equity at least, entitled to receive
merce, or may have really made profits from war the benefit of that act.
premiums, seem to stand in the shoes of those
whose property was captured by the Alabama, But, on the other hand, it is said that the at least to the extent of the amount of losses paid companies cannot justly claim a re-imbursement by them in excess of premiums received. The for the whole amount paid by them; the amount equitable claims of the third class of losers must be of premium received for the risk should be de- excluded by reason of the difficulty of establishing ducted and given to the owner of the property definitely what portion of their losses was due to insured. Then there might come the claims of the Alabama, as distinguished from losses due to those who were compelled to pay war risks by reason other privateers. At least the losses of this class of the presence at sea of the Alabama, and there is do not appear to have been considered by the Gena seeming justice in the assertion that these per- eva tribunal.
VOL. 15.--- No. 1.
We have little faith in any attempts to make men
managers. The reference to the state of the law in moral or sober by law, but we must confess that the regard to insecurity of places of public resort is experiment of Mr. Bergh in the direction of making
timely, and the recent theater disaster in Brooklyn them humane has met with a wonderful degree of
will probably give sufficient force to it to secure apThe society organized by him show, as propriate legislation. The remarks upon municipal the result of their work for the year just past, 850
reform will meet the approval of those who have to prosecutions in court, 1,794 disabled horses turned pay taxes. In fact, any thing that can be done to out of harness in the streets, and more than 2,000 check the extravagant expenditure of municipaliacts of cruelty prevented by interference by its
ties will be welcome, and we believe that the depresagents. This, in addition to an unlimited number sion in values which is now existing, will render it of other acts done for the comfort and well-being
impossible to continue much longer a system of of brutes, is a remarkable record of what is being government which necessarily leads to such extravaaccomplished under an experiment in legislation, gances. Some of the suggestions concerning taxawhich, but a few years ago, was deemed visionary,
tion will meet with approval, and some with adverse not to say fanatical.
criticism. Of course, the subject of exempting
churches from taxation is one upon which all will Mr. Francis C. Barlow is a waggish fellow — in not think alike; neither will those who do not hold fact a very Falstaff. Last week he sent to Mr. Elihu stock in banks probably acquiesce in any measure Root, the opposing counsel in a cause, a request to looking to the relief of such institutions from taxareturn his brief in the case, saying, “I make now ation. Yet, it has been well said that taxation, no a further and formal request, for the purpose of matter how imposed, sooner or later distributes itself basing upon it, if still uncomplied with, an so that all feel its burden. It is not so much the action of replevin, or if the argument has been methods of taxation that are apt to be inequitable, destroyed, an action of trover coupled with the as the changes that are made in the methods. What arrest of the guilty parties." To which Mr. the governor says about legislation in appropriation Root returned the following laconic and bills is proper, but we suppose if occasion comes orthodox reply: “Don't be a damned fool." Not hereafter for the insertion of a provision of general heeding the request, Barlow responded at con- legislation in such a bill it will be done all the same. siderable length, saying, among other things: “I request that you will inform me on or before 12 m.
Among the judges who have long occupied the of Saturday next, whether you will meet me at a
Supreme Bench of our State, to the satisfaction of point to be designated by yourself, in Canada,
the public and of the bar, we know of no one who during the coming week, that we may settle
stands higher than the Hon. E. Darwin Smith, of this matter of difference in a dignitied way. If
the Seventh Judicial District. Chosen to the judiyou answer in the affirmative, I will request a
cial office twenty-one years ago, he has continued friend to wait upon you, whom you can refer to
therein uninterruptedly until the beginning of the some gentleman who will act for you. Should
present year. During the whole time he has actively you decline to give me this satisfaction, I can
discharged the duties incumbent upon his position, only ask you to be prepared to defend yourself
and he now retires under the constitutional pro(of course I mean by the use of fire-arms) whenever
vision, regretted by all who have occasion to transact and wherever I may meet you, always excepting, of
business with the court in which he sat. During course, the courts as a place of encounter. Upon
the time he has occupied the judicial position, he recognition I shall feel at liberty to fire upon you,
has written many opinions of value, which appear as the only method of adjustment left me of this
in our various State reports. We trust his retiredifficulty.” A warrant for Mr. Barlow was sought,
ment from the bench will not terminate his relawhereupon Mr. Justice Davis interposed his
tions with the profession, but that we may in other "friendly offices,” and Barlow solemnly asseverated
ways retain the benefit of his learning and experithat it was all a “joke.”
Hon. J. C. Smith has been appointed to fill
the position at the General Term of the Fourth DeThe message of the governor of this State, like partment, heretofore occupied by the retiring judge. those of his predecessors, makes many suggestions as to legislation, some of which will be acted upon The theater accident in Brooklyn led the public and some of which will not. Among those that to consider what the law had done and could do ought to receive attention is the one in relation to toward making human life safe in buildings where savings banks, the disasters occurring among such large crowds are wont to assemble, and the recent institutions during the past year or two indicating railway accident at Ashtabula occasions the same that the existing laws are not sufficient to secure de- inquiry as to public conveyances for travel. In each positors against loss from maladministration by instance the inquiry resolves itself into two ques
tions, namely: Is it possible, in the nature of things, self have a legal claim for support upon the person to obtain absolute safety to human life in the con- whose life is insured. Thus it has been there held struction of public buildings and in the construction that, while a wife has an insurable interest in the and operation of railways, or what, to a reasonably life of her husband, the husband has not one in hers. cautious person using them, will amount to absolute Bunyon on Ins. 14. Though this has been denied. safety? And, second, providing the first question Hebden v. West, 3 B. & S. 579. See, as to the quesis answered in the affirmative, is it possible, by law, tion of insurable interest, Lord v. Dall, 12 Mass. to compel the adoption of such measures as will | 115, where a sister was held to have an insurable secure such safety? We imagine the answer to the interest in the life of a brother who supported her; first question will be yes, and to the second question, and even a married sister, not dependent upon her so far as theaters and public buildings are concerned, brother, has been said to have such interest, he in the affirmative also. The public conveyance pre- being unmarried and without issue or parent living. Bents a different question. It may be within the France v. Ætna L. Ins. Co., 2 Ins. L. Jour. 657; reach of human ingenuity and care to prevent every Loomers v. Eagle L. & H. Ins. Co., 6 Gray, 396, where accident to passengers; but the expense of such in- a father is held to have such an interest in the life of genuity and care may be so great as to preclude his minor son. See, also, Mitchell v. Ins. Co., 45 their adoption. It is necessary for people to travel, Me. 104; Ins. Co. v. Johnson, 4 Zab. 576; Bevin v. and they are justified in being willing to undergo Ins. Co., 23 Conn. 251; Ins. Co. v. Robertshar, 2 some risk to life and limb to do so. It is not neces- Cas. 190; Cunningham v. Smith, 20 Sm. 456. sary for them to assemble in large bodies in dangerous public buildings, and they are not justified in risking life and limb to do so. Consequently the In the case of McLennan v. Gerrie's Trustee et al., law is entitled to require that places of public recently decided by the Sheriff Court of Aberdeen, assemblage be made safe at all hazards, and without the facts were these. Gerrie bought goods of three regard to the expense necessary.
But in regard to different London merchants, from two on credit, railways and other means of travel, it can only say, and from one for cash, the goods in the latter case, “You must manage these with the utmost safe- however, to be delivered before payment was reguards that are possible in connection with the main-mitted. The goods were to be sent to Aberdeen, tenance of traffic.” If the theater performance Scotland, by steamer, and were so sent. They arcannot be conducted without danger to human life, rived at Aberdeen at various times from the 28th of it is of little moment that it is stopped. If the con- June until the 5th of July. It was the custom of duct of railways involves some danger to life, that Gerrie to convey goods consigned to him, from time danger must be encountered, although the minimum to time, by the line of steamers over which the of risk compatible with the continuance of railway goods in question were sent, by his own vehicle to traffic on the given line should be exacted.
his place of business, and the steamer company were accustomed to keep his goods until he did so.
On the 15th of July, while the goods in question NOTES OF CASES.
were still on the premises of the steamship comIN N the case of Kane v. Reserve Mutual Life Ins. pany, or on premises adjoining, he went into bank
Co., decided by the Supreme Court of Pennsyl- ruptcy. On the same day he wrote as follows to the vania (3 Weekly Notes of Cases, 201), an adult son
vendors: “Having in the mean time suspended paywas held to have an insurable interest in the life of ment, I have refused goods of invoice dated June his father. The law of Pennsylvania, as does that of 28th, and given instructions to steamboat company most other States, renders an adult son liable for the to store in the weigh-house." He gave the instrucsupport of his father, and the court say that such legal tions mentioned in respect to all the goods on that liability is sufficient to support the contract of insur- date, which were complied with. The court held ance. It has been held, however, in England that, that as at the date when the letters were dispatched when the life of a pauper dependent on his son for to the vendors, the goods never had been in the support was insured, a son had not an interest in the possession of the bankrupt, the contract of sale father's life sufficient to uphold the contract, under
was thereby effectually rescinded, and the goods the English statute. Shilling v. Accidental Death Co., belonged to the vendors and not to Gerrie's as27 L. J. Exch. 16, 19. “He will not be allowed signee. The court say that the goods were on the to enter into a speculation upon the father's life and 15th in transitu, and arrestable by the vendors. limbs.” The ground upon which the English de- See Bolton v. Lancashire & Yorkshire Railway, L. R., cision rests, is that it is 4 gambling venture, and it 1 C. P. 431 ; Schotsman v. Lancashire Railway Co., is said that the true rule then is that where a policy L. R., 2 Ch. 332; Borndston v. Strang, L. R., 4 Eq. is sought to be supported by an interest derived 481; Bigg8 v. Barry 2 Curtis C. C. 259; Atkins v. from relationship, the person obtaining it must him- Colby, 20 N. H. 164; Stubbs v. Lund, 7 Mass. 457.