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Vol. I.)

DIGEST or CASES.

[No. 5.

LANDLORD AND TENANT. AN AGREEMENT FOR STIPULATED PRICE PER MONTH IS NOT A LEASE. — An agreement permitting, for a stipulated price per month, the use on a portion of a public wharf of certain described utensils for loading and unloading, is not a leasing of the premises on which these conveniences are placed, and does not create the relation of landlord and tenant, under which the tenant could be dispossessed as holding over after expiration of lease. Daniels v. Cushman, Daily Reg., April 1, 1874.

LEASE. NOTICE TO QUIT. — A lessor retains sufficient interest in the premises leased, after the conveyance of the premises to a third party, to entitle him to give the necessary notice to the tenant to quit. Glenn v. Thompson, Leg. Gazette, April 3, 1874.

See SURETY, 1.

LEGISLATURE. 1. THE POWER TO DO A SPECIFIC ACT conferred by the legislature is exhausted when that act is performed. Smith v. The Mayor, gc. of New York, Daily Reg., March 26, 1874.

2. AUTHORITY TO INCREASE PAY OF AN OFFICER. A reference in an act of the legislature to a fact does not render valid the authority under which that fact had come into existence. The authority to increase the pay of an official cannot be established by implication of law ; it must be by direct and positive enactment. Ib.

3. APPROPRIATION OF MONEY FOR PAYMENT OF SALARIES. The fact that an appropriation of money made by the legislature for the payment of the salaries of certain officials is sufficiently large to cover the sum claimed by one of them is no authority for its payment. 16.

LIFE INSURANCE.

1. AGENT. — Colton, not being a regular agent of the defendant, procured an application for insurance on the life of the deceased, and the policy was made out and delivered to him with instructions not to deliver it to the insured till the premium was paid. Disregarding instructions, he delivered the policy and received the premium some nine days afterward, when the health of the insured was materially changed for the worse. Held, that prior to the execution of the policy, Colton was not an agent of the defendant, although he may have professed so to act.

Held, that upon the execution and delivery of the policy to him he became a special agent of the company to receive the premiums and deliver the policy on such receipt.

Held, that assuming that the representations in the application are true, if the De Camps were made acquainted on June 5 or 6 with the terms of the policy, and if they paid the premium on the 14th to Colton, that thereupon it became a perfected and binding policy, notwithstanding that Colton never paid the premium to the defendant.

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Held, that if any material change in the health of the insured takes place before the contract is consummated, it is the duty of the parties to inform the company of these facts.

Held, that if the policy was executed by the defendant, and handed to Colton to be delivered to the applicants on the receipt of the premium, and that they became acquainted with the contents on the 5th or 6th of June, and assented thereto and promised to pay the premium in a few days, that the contract then became consummated, subject only to the payment of the premium, and that it was not obligatory upon the plaintiff to inform the defendant of any change in the health of the insured, if any, taking place between the 5th and the 14th of the month.

Held, that the fact of the delivery of the policy on the 5th of June was immaterial, except that it is important for the plaintiff to show that she acquiesced in the terms of the contract prior to any supposed change in the health of the insured, and that there was an assent on the part of the plaintiff and defendant in the terms of the policy.

Held, that if naught remained but the payment of the premium, it is unimportant who had possession of the policy between the 5th and 14th of June ; but if the payment of premium and receipt of the policy were a part of a collusive scheme between the plaintiff and Colton, whereby she got possession of the policy, the plaintiff cannot recover.

Held, that if the questions in the application were not rightfully answered by the applicant, the representations which he made were untrue, and if untrue in this material respect, the company did not have an honest statement of the risk they were called upon to insure, and therefore the policy is avoided.

Held, that in cases where the construction of the language of the policy is doubtful, it is to be construed against the company, but where the

meaning is plain, this rule is not so important.

Held, that the plaintiff is not concluded by the physician's certificate as to the cause of death, nor by the verdict of the coroner's jury. De Camp v. N. J. Mut. Life Ins. Co., Ins. L. J., February, 1874.

2. SUICIDE. - Held, that to make the insurer liable, the mind of the deceased must have been so far deranged that he was incapable of using a rational judgment in regard to the act of self-destruction. Coverston v. Conn. Mut. Life Ins. Co., Ins. L. J., February, 1874.

3. SUICIDE BY INSANE IMPULSE. Held, that if the insured was impelled by an insane impulse which his remaining reason did not enable him to resist, or if his reasoning powers were so far overthrown that he was unable to exercise them on the act he was about to perform, the company is liable. Ib.

4. Held, that there is NO PRESUMPTION OF LAW THAT SELF-DESTRUCTION ARISES FROM INSANITY; and if, by reason of sickness, or distress of mind, or a desire to provide for his family, the insured takes his own life in the exercise of his usual reasoning faculties, the company is not liable. Ib.

5. Held, that the BURDEN OF PROOF lies upon the company to show that the death was caused by suicide and not by accident. Ib.

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LIMITATIONS. 1. STATUTES OF THE SEVERAL STATES. - The statutes of limitations of the several states are not binding upon the rights of the United States. Gardiner v. Miller, Pac. Law Rep., March 17, 1874.

2. LEGAL TITLE TO UNDEFINED MEXICAN GRANT. — The legal title to a quantity of land granted by Mexico with undefined boundaries, to be located within designated exterior boundaries, remains in the United States until the patent to a particular tract is issued. Ib.

3. STATUTES OF LIMITATIONS NOT APPLICABLE ANTERIOR TO PATENT. — The statute of limitations of California has no application to the title of a patentee of the United States anterior to the issuance of the patent. 16.

MISDEMEANOR. 1. DEFINITION OF. — A misdemeanor is an act or omission for which a punishment other than death or imprisonment in the state prison is denounced by law. The breach of a city ordinance, as against drunkenness, is not a misdemeanor. Pillsbury v. Brown, Pac. Law Rep., March 10, 1874.

2. DISTRICT ATTORNEY. — The statute of 1869–70, providing fees of district attorney upon convictions for misdemeanors, referred only to misdemeanors defined as such by the general public law of the state. П. .

MORTGAGE.
See INSURANCE, 1.

PARTNERSHIP. 1. LIMITED PARTNERSHIP. When there has been a substantial conformity with the law which authorizes the formation of limited partnerships, the court will hold the statutory proceedings to be valid. Levey v. Lock, Daily Reg., March 28, 1874.

2. PUBLICATION AND RECORDING OF TERMS OF PARTNERSHIP. – These proceedings having been published and recorded previous to the transactions involved in the suit; held, that notice was given plaintiff of the fact that defendant was a special partner sufficient to put him on his guard. Ib.

PATENT LAW. 1. USE OF PART OF COMBINATION. - A combination of three distinct parts is not infringed by the making and sale of two of the parts to be used without the third. Cooledge v. McCone, Pac. Law Rep., March 17, 1874.

2. USELESS PARTS REJECTED. When the invention claimed and patented is a combination of three distinct parts, it is no infringement to make and use two of the parts, even though the third is useless. 16.

PLEADING AND PRACTICE. 1. NOTICE OF ARGUMENT ON MOTION FOR NEW TRIAL. — Under the old practice act either party could notice for argument a motion for a new trial, and if the party opposing the motion neglected to bring it on, he waived his objection to any delay. Griffith v. Gruner, Pac. Law Rep., March 3, 1874.

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2. NOTICE TO PARTY APPEARING BY ATTORNEY. — Under the practice act, where a party appears in an action by attorney, a notice to take depositions must be served on the attorney and not on the party personally. 16.

3. OBJECTION TO EVIDENCE. — Objection to the form in which evidence is offered must be first taken in the trial court. Gill v. O'Connell, Pac. Law Rep., March 10, 1874.

4. CERTIORARI. — If the president judge certifies, in answer to a certiorari suggesting diminution of the record, that all has been fully and perfectly returned, the certiorari has performed its office, and the only remedy is an action against the judge for a false return. Flagg v. Searle, Leg. Int., March 27, 1874.

5. DEPOSITIONS. — Defendant may be compelled, on application of plaintiff, to file the depositions taken on his behalf on payment by plaintiff of the costs for taking the depositions. Martin v. Dearie, Leg. Int., April 3, 1874.

6. ROAD JURORS should be sworn in the manner required by the act of assembly. In re Cambria Street, Leg. Int., April 3, 1874.

7. WHEN TO BE SWORN. All the jurors should be sworn before they enter on their duties. 16.

8. AMENDMENT. An amendment made by the court cannot cure radical defects in the proceedings of the jury. Ib.

9. CONSTRUCTION OF STATUTE. Held, that a later statute which is general and affirmative does not abrogate a former which is particular, unless negative words are used, or unless the two acts are irreconcilably inconsistent. City of St. Louis v. Life Association of America, Ins. L.J., February, 1874.

10. REMOVAL OF ACTION FROM STATE COURT INTO CIRCUIT COURT OF UNITED STATES. - An action cannot be removed from a state court into the circuit court of the United States under the act of Congress of 1867, c. 196, after a trial on the merits, although such trial has resulted in a disagreement of the jury. Galpin v. Critchlow, Am. Law Reg., Feb

ruary, 1874.

See CONSTITUTIONAL LAW; JUDICIARY Act.

PRACTICE.

See PLEADING AND PRACTICE.

PREEMPTION. VOID CONTRACT. — An executory contract, made by one claiming the benefits of a preëmption law of 1841, before making proof and payment as a preëmptor, to convey land upon receipt of a patent from the United States, cannot be enforced. Hutson v. Walker, Pac. Law Rep., March 10, 1874.

RAILROADS. 1. CHARTER. — An act prohibiting a railroad company from charging at a greater rate per mile for carriage of passengers or freight from place to place within a state, than for similar carriage through or beyond the state, no such power to regulate charges having

been reserved in the char

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ter, is unconstitutional and void, Phila. fc. R. R. Co. v. Bower, Am. Law Reg., March, 1874.

2. Such an act is not within the police power of the state. The legislature may regulate the exercise of the corporate franchise by general laws passed in good faith for the legitimate ends of the police power, that is, for the peace, good order, health, comfort and welfare of society; but it cannot, under color of such laws, destroy or impair the franchise itself, nor any of those rights or powers which are essential to its beneficial exercise. 16.

See COMMON CARRIERS.

REAL PROPERTY.
See STATUTE OF FRAUDS.

SEIZURE. CUSTOM LAWS. - Where dutiable merchandise was imported as passengers' baggage, but no attempts were made by the owners and consignees to have it passed as such ; and the owner, without knowledge of the seizure by the officers of customs, offered the goods, with correct bills of lading and moneys, for entry at the custom-house. Held, that such goods were not forfeitable either under the 50th section of the act of March 2, 1799; the 1st section of March 3, 1863; or the 4th section of July 18, 1866. The United States v. Ninety-five Boxes, containing, fc., Int. Rev. Rec., March 28, 1874.

STATUTE OF FRAUDS. A PAROL AGREEMENT TO PURCHASE REAL ESTATE is of no effect. A part payment without possession, and which was afterwards appropriated to another indebtedness, will not take it out of the statute of frauds. Newkumet v. Kraft, Leg. Int., April 3, 1874.

SURETY. LEASE. — A was surety on a lease renewable from year to year, and having given sixth months' notice that he would not continue surety after the end of the current year; held, that he having died in the mean time, his estate was not liable for any rent in arrear after that date. In re Estate of De Silver, Leg. Chron., March 28, 1874.

TRADE-MARK. 1. FAMILY NAME. — A manufacturing company will be protected in the use of a certain trade-mark, though part of the trade-mark consists of a family name. Meriden Britannia Co. v. Parker, Am. Law Reg., March, 1874.

2. Equity will restrain the use of the same name in so far as it forms a material part of the trade-mark, and will necessarily injure the company, even though another may acquire the right of that name from parties to whom it legitimately belongs.

It is not every use of the name, however, that will be held to necessarily infringe the trade-mark, or that will be restrained by injunction. 16.

3. Though equity will not protect a trade-mark which deceives the pub

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