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LIFE POLICY

DOES NOT LIE.

INSURANCE LAW.

WHEN ACTION FOR PREMIUMS PAID An action cannot be maintained by the holder of a life insurance policy against the agents of a life insurance company for premiums paid to them on the same, when it appears that the policy conforms to the application, and is in accordance with the agreement of such agents. Nor can such an action be maintained against either the principal or agent without proving that he has offered to return the policy, or that it is worthless. Cutler v. Gilbreth, 53 Me. 176. Maine Sup. Jud. Ct., June 4, 1881. Farrow v. Coch

ran. Opinion by Barrows, J. (72 Me. 309.)
MUTUAL BENEFIT SOCIETY- INSURABLE INTEREST
-ONE NOT RELATIVE OF MEMBER NOT ENTITLED TO
BENEFIT.

- A mutual benefit association organized under a statute authorizing the incorporation of such associations for the purpose of securing "to the family or heirs of any member upon his death" a sum to be paid out of the corporate funds, or by an assessment upon the members in the class to which the deceased belonged, made a contract in the usual form with P. to pay in case of his death $6,000 to H. For this P. paid the usual premium. In the application for this contract, in answer to a question as to the "relation of the beneficiary (H.) to the applicant," P. stated that there was no relation," and the certificate issued was made payable to H., "friend of "P. Held, that upon grounds of public policy the association were not liable upon the contract to H. after the death of P. Michigan Sup. Ct., July 1, 1881. Mutual Benefit Association v. Hoyt. Opinion by Marston, C. J.

MURDER

CRIMINAL LAW.

TRIAL CHALLENGES-PROOF OF MO

TIVE. (1) At a trial for murder, defendant challenged a juror for cause, his challenge was disallowed, and he challenged the juror peremptorily. A jury was obtained without defendant's peremptory challenges, allowed by law, being exhausted. Held, that even if it was error to overrule defendant's challenge for cause, it was not ground for reversal no prejudice having resulted to defendant. Nevins v. State, 16 Ohio St. 221; Erwin v. State, 29 id. 186; State v. Brown, 15 Kan. 400; State v. Davis, 41 Iowa, 315; State v. Elliott, id. In the case last cited it was held that if a juror challenged by the defendant for cause was improperly admitted to the panel, and the defendant accepted the jury, without exhausting his peremptory challenges, it was the voluntary act of the defendant to permit the juror to serve, and error without prejudice. (2) After the corpus delicti was proven and evidence tending to connect the prisoner with the crime given, and it being shown that deceased had committed an assault on a woman named, who was in the prisoner's company, held, that evidence that the woman and prisoner were paramours was admissible. When

in a criminal case the corpus delicti has been established, and evidence has been introduced tending to connect the prisoner with the commission of the crime, it is always competent for the State to introduce evidence properly tending to show a motive on the part of the defendant to commit the crime. The weight to be given to such evidence is for the jury to determine. Its admissibility depends upon whether it tends to establish a motive which might naturally have influenced or controlled the action of the accused. In Overstred v. The State, 46 Ala. 30, the court lay down the rule in the following language: When it is shown that a crime has been committed, and the circumstances point to the accused as the guilty agent, proof of a motive to commit the offense, though weak and inconclusive evidence, is nevertheless admissible." See also, Murphy v. The People, 63 N. Y. 594; State v. Henkle, 6 Iowa, 384; McCue v. Commonwealth, 78 Peun. St. 188; State v. Wilkins, 9 Conn. 52; People v. Start, 4 Park. Crim. R. 114. Minnesota Sup. Ct., Aug. 1, 1881. State of Minnesota v. Lawlor. Opinion by Clark, J.

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PLEADING DILATORY PLEA MUST BE CERTAIN.-It is a settled rule that every dilatory plea must be pleaded with strictness, and be certain to every intent. 1 Bac. Abr., title, "Abatement O," p. 34. And it is consequently essential that the facts should be stated out of which the defense arises, or a negation of the facts which are presumed from the existence of a record. Accordingly as it is the presumption that a grand jury was legally and regularly drawn and impanelled according to law, a plea in abatement should expressly negative this upon the averment of the facts. State v. Brooks, 9 Ala. 10; 1 Whart. Cr. L., § 537. Where the plea fails to aver that the panel never consisted of more than twenty-two jurors, no presumption or intendment will aid the plea. Maryland Ct. of Appeals, Jan. 27, 1881. State of Maryland v. Scarborough. Opinion by Alvey, J. (55 Md. 345.)

RECENT ENGLISH DECISIONS.

JURISDICTION -OF ACTION AGAINST PUBLIC OFFICER.- The Supreme Court of Natal has jurisdiction over all her majesty's subjects, and all other persons whomsoever residing and being within the colony. The appellant was deputy commissary-general, and the respondent brought an action against him in his official character to recover the hire of and also damages for the loss of wagons and cattle belonging to him, which had been employed by the government in the transport service during the conduct of a war in the colony. Held (reversing the judgment of the court below) that the court had no jurisdiction to entertain a suit against the appellant either personally or in his official capacity upon a contract entered into by him in performance of his duty on behalf of the commissariat department. Rogers v. Rajendro Dutt, 13 Moo. P. C. 309; Van Rooyen v. Reit, 2 id. 177; Dyke v. Elliott, 8 Moore P. C. (N. S.) 428; Kirk v. The Queen, L. R., 14 Eq. 558; Gidley v. Lord Palmerston, 3 Bro. & Bing. 275; Mackbeath v. Haldimand, 1 T. R. 174. Privy Council, July 15, 1881. Palmer v. Hutchinson, 45 L. T. Rep. (N. S.) 1880.

STATUTE OF FRAUDS-INSUFFICIENT DESCRIPTION OF VENDOR. — Plaintiff was the lessee of vaults in the city of London under a lease granted by the mayor and corporation of London and the Mercers' Company. The defendant company entered into a negotiation for the purchase of the lease. The secretary of the company wrote to the house agents acting for the plaintiff a letter in which he said that the directors thereby offered to purchase the vaults for 2,500l. cash, and to take over a mortgage for 3,500l. on the lease, these

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terms to include the lease, goodwill, fixtures, etc. The house agents answered as follows: "In reply to your letter of the 7th instant we are now instructed to accept the offer therein contained, and will forward contract as soon as we obtain it from the solicitor." Differences subsequently arose respecting the time when possession should be given, and eventually the plaintiff brought an action against the defendants claiming damages for breach of contract. Malins, V. C., held that the letters contained a binding contract between the parties. Held (reversing the decision of Malins V. C.) that no binding contract had been entered into, first, because the name of the vendor had not been disclosed or a sufficient description given so as to satisfy the statute of frauds; and secondly, because the letters mentioned only what was the property to be purchased and the price to be given for it, but left the other necessary terms of the agreement, such as the time when possession was to be given, to be settled by a formal contract to be prepared by a solicitor in the ordinary way. Ct. of Appeal, June 22, 1881. Donnison v. People's Cafe Co. Opinions by Jessel, M. R., and Lush and Baggallay, L. JJ., 45 L. T. Rep. (N. S.) 187.

WILL GIFT TO ISSUE.

Where the word "issue"

'Provided

is a word of limitation, and only operates to designate the quality of the interest given to the parent, the distinction between future and existing issue disappears, and expressions pointing to future births receive a technical construction. But where there is a direct gift to issue, the words are to have their natural siguification, unless there be something in the context to show the contrary. A testator by his will left certain real property (in the events which happened) to his four grandsons, of whom the appellant was one, for life in equal shares as tenants in common, with remainder to their first and other sons, respectively, in tail male, with cross-remainders over in default of issue. The will contained the following proviso: always, that if any person whom I have made tenant in tail male of my said estate shall be born in my lifetime, then and in such case I revoke the devise so made to him, and in lieu thereof I give and devise the hereditaments comprised in such devise and appointment to the use of the same persons respectively for the term of his natural life, and after his decease to the use of his first and every other son successively according to their seniorities in tail male." W. K. G. was the eldest son of the appellant, and was born in the life-time of the testator before the date of the will, and on coming of age he executed a disentailing deed of his share of the property, and conveyed it to the appellant in fee. The respondent was the eldest son of W. K. G. Held (reversing the judgment of the court below) that the proviso referred only to persons who should be born after the date of the will; and that W. K. G. took an estate in tail male in the said hereditaments, which was duly barred by disentailing deed, and not an estate for life only; and that the respondent took no interest under the proviso contained in the will. Loring v. Thomas, 1 Dr. & S. 497; Re Sheppard's Trust, 1 K. & J. 269; Sturgess v. Pearson, 4 Madd. 411; Trappes v. Meredith, 26 L. T. Rep. (N. S.) 5; Giles v. Melson, L. R., 6 H. L. 24. Privy Council, May 14, 1881. Gibbons v. Gibbons. 45 L. T, Rep. (N. S.) 177.

CORRESPONDENCE.

NOTICE OF LIS PENDENS IN PARTITION. Editor of the Albany Law Journal:

Mr. W. H. Flitner, in his communication on the obove subject, in last week's issue, says, inter alia: "There is absolutely no protection to a purchaser of a plaintiff's interest in the real estate; there is no

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539

period during the progress of the partition suit, or even after judgment of sale therein, when a lien or incumbrance cannot be filed and made effectual against the plaintiff's interest, notwithstanding the filing of the notice of lis pendens."

Mr. F.'s conclusion that all lis pendens in partition should be required to be indexed against the plaintiffs as well as the defendants, is undoubtedly correct, and the advisability of a Code amendment to that effect has been frequently suggested by the undersigned and others, during the past decade, and under the old practice.

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But nevertheless, Mr. F.'s statement quoted above is not justified. A purchaser of a plaintiff's interest" could and would be fully protected thus: He would naturally seek the advice of Mr. Flitner or some other equally able conveyancer, before he purchased any undivided interest in real estate. Suppose he proposed to buy out or to lend upon A.'s undivided interest in the property. An examination of the title would reveal the fact that B., C. and D. were the other owners jointly or in common with A. Lest A. might have begun a partition suit as plaintiff against the others, Mr. F. would undoubtedly search against B., C. and D. (as well as A.), for lis pendens, and such a search would reveal any and every partition suit instituted by any or either of the parties against the others.

Again, a lien or incumbrance cannot be filed or "made effectual against the plaintiff's interest, notwithstanding the filing of the notice of lis pendens," because:

*

I. In case of an actual partition, section 1557 makes the final judgment binding and conclusive upon ** *the plaintiff" and his "legal representatives," and "each person claiming from, through. or under " him.

Now if one should buy or loan upon A.'s undivided interest in certain real estate, and A. should theretofore have brought partition, and final judgment therein should have previously allotted and set apart in severalty to A. specific property, A.'s grantee or mortgagee of his (A.'s) undivided interest would get a specific and determinate, instead of a general and undivided interest or lien in the property, and would therefore be substantially protected.

II. Should there have been a sale, in the given case, sections 1562, 1577 and 1578 would apply; which sections provide for an advertisement for liens, etc., making the final judgment "binding and conclusive upon the same persons as in case of actual partition, and a bar against each person not a party, who has at the time when it is rendered a lien on the undivided share or interest of a party," if notice was given to appear and make proof of liens, etc.

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Are not these provisions ample to protect one dealing with a possible plaintiff in partition, as to his undivided interest in land, especially where a search is made against the other undivided owners? A grantee or incumbrancer of an undivided interest has no right to expect the same protection as if his grantor, etc., were the sole and exclusive owner of the whole. The community of interest between owners in common is per se notice to the world, and in one sense caveat J. C. LEVI. emptor.

NEW YORK, Dec. 19, 1881.

TENDER OF RENT AFTER DEMAND BUT BEFORE SUIT.
Editor of the Albany Law Journal:

In order to settle a dispute, will you please answer, categorically if possible, the following question? A person leases a house for a year, rent payable monthly. The lease is an ordinary one, having a clause of forfeiture for non-payment of reut. Demand is made at the end of a month, but before the expiration of the year, for the rent then due. The demand is made in

accordance with every legal requisite. The rent is not paid; but on the next day, before suit in ejectment is brought, an offer is made in legal tender of the exact amount then due. The offer is refused. The tender is kept good. Can the forfeiture of the lease be enforced? BUCKEYE.

CLEVELAND, O., Dec. 5, 1881.

[Without examining authorities, we should say that the forfeiture cannot be enforced, forfeitures not being favored in law. - ED. ALB. L. JOUR.[

NEW BOOKS AND NEW EDITIONS.

HOYT'S MECHANICS' LIENS.

Mechanics' Liens; How Acquired and Enforced. A treatise referring to and citing the latest statutes designed for general circulation among lawyers, builders, mechanics and owners, to which is added an appendix of forms. By James T. Hoyt, of the New York Bar. New York: J. O. Carpenter, 7 1-2 Times Building, New York City. 12 mo., pp. xxi, 310.

THE

HE maze of statutes in this State on this topic demands a fresh and careful treatise. The present seems to answer the demand. The chapter division is as follows: Persons entitled to a Lien; The Contract; The Owner; The Labor and Materials; The Land; Filing of the Lien the Time; The Notice; Continuance and Discharge of Lien; The Foreclosure; Statutes and their Construction. The author's work seems exhaustive, methodical and intelligent. He has a new method of citation-referring by number only to a numbered table of cases. His style is condensed,

and at the same time clear and comprehensive. Doubtless the little book will prove very useful.

BECKER'S GALLUS AND CHARICLES.

Gallus, or Roman Scenes of the Time of Augustus. With notes and Excursuses illustrative of the Manners and Customs of the Romans. By Professor W. A. Becker. Translated by the Rev. Frederick Metcalfe, M. A., Fellow of Lincoln College, Oxford, and Head Master of Brighton College. Sixth edition. J. B. Lippincott & Co., Philadelphia. Pp. xxi, 535.

Charicles, Illustrations of the Private Life of the Ancient Greeks. With Notes and Excursuses. From the German of Professor Becker. Translated by the Rev. Frederick Metcalfe, M. A., Fellow of Lincoln College, Oxford. Fifth edition. J. B. Lippincott & Co., Philadelphia. Pp. xi,

512.

These celebrated works give a vivid picture of everyday life in ancient Athens and Rome, in the form of romance. They are among the most instructive and entertaining of their class. Prof. Ebers has very successfully followed their plan in his Egyptian romances. Becker's romances are accompanied by very extensive and learned excurseses, important to scholars, but which the general reader can conveniently pass over. We suggest to the publishers to issue an edition of St. John's Ancient Greece, an English work long since out of print, portraying the life, manners, customs and religion of the ancient Greeks, in a very entertaining style. The present books are very neatly printed.

BIDDLE ON STOCK BROKERS.

A Treatise on the Law of Stock Brokers. By Arthur Biddle and George Biddle, of the Philadelphia Bar. Philadelphia: J. B. Lippincott & Co., 1882. Pp. 445. This work is different in scope from the recent one of Mr. Lewis, of Philadelphia, on the Law of Stocks. Its title must be strictly construed. It is divided as follows: Description of the Stock broker; the Stock broker and the Stock exchange; the Stock broker and his principal; the Stock broker and third parties; the thing sold at the Stock exchange; the contract of sale; the effect of the 17th section of the statute of frauds

on the contract; effect of the statute of mortmain on the contract; effect of the 4th section of the statute of frauds on the contract; effect of the usage of trade on the contract; relations of the vendor and vendee after the contract; delivery of the thing sold; avoidance of the contract; formation of the pledge; effects of the pledge; avoidance of the contract of pledge; remedies; measure of damages. Under this logical arrangement the treatment is quite admirable. The book has a good table of contents, a table of cases, an index, and marginal sub-titles and referThe book is elegantly printed; perhaps rather too luxuriously.

ences.

THE

NOTES.

HE Western Jurist for December, contains an artiticle on Burden of proof of contributory negligence in actions for personal injury, by N. B. Raymond. The American Law Register for December contains a leading article on Convertible Property, by A. Douat. Also the following cases in full: Ridgway v. Ridgway (Eng.), on revival of condoned adultery, with note by Edmund H. Bennett; Ward v. Kilpatrick (N. Y.), on mirrors as fixtures, with note by Marshall D. Ewell; Perkins v. Board of Directors, etc. (Iową, on authority of public school directors to exclude pupils from school; City of Logansport v. Justice (Ed.), on notice to city of defect in street, and measure of damages for personal injury by such defect, with note by W. W. Thornton.

In re-reading De Quincey on Murder as one of the Fine Arts, we are amused to see that in depicting the possible career of the artistic murderer, Williams, in case he had taken certain evident precautions, he says he might have emigrated to the United States, become naturalized, and been elected president! The oldfashioned British lion never failsed to make an ass of himself in his hatred and jealousy of "the States."

Counsel in Eldridge v. Phillipson, 58 Miss. 270, remark" testimony which does not stick to that, like the shirt of Nessus, is incompetent and irrelevant." That is, un-Nessus-ary, we suppose. We regret to notice the discontinuance of the Southern Law Journal. It is to be succeeded by the Weekly Pantagraph, which will give the head notes of the Alabama decisions.

The "Proceedings of the New York State Stenographers' Association, including Papers read, etc., at the Sixth Annual Meeting, held at Buffalo, N. Y., Aug. 23d and 24th, 1881," contains some very funny articles, notably, "Reporting at Chautauqua," by Geo. H. Thornton, and "Blunders,' by F. J. Morgan.

In a recent Texas case, Texas & Pacific R. Co. v. Kirby, the trial court gave the following definition: "Contributory negligence is that which contributes to the injury of any person or thing by the careless handling of any railroad or machine, or instrument in the hands of another, or contributory negligence may be attributed to any person in not looking out for his own safety." "It is the opinion of the court that tho Texas & Pacific Railroad Company was guilty of contributory negligence in allowing a sawdust pile to accumulate on her right of way, and so near the track and a general road crossing, to such a height and length as to entirely obscure the approach of any traveller or team until within a few feet of the track."— - We are glad to learn what "ganancial" property is. It is defined in Chanez v. McKnight, 1 New Mex. 147, as "that which is increased or multiplied during the marriage." Meaning babies, probably. In Joseph v. Miller, id. 621, it is held that a horse race is a "gambling device." See ante 502. In Garcia v. Territory, id. 415, it is held that sixty lashes on the bare back is not a "cruel or unusual punishment" for mule stealing.

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