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MAINE SUPREME JUDICIAL COURT

ABSTRAСТ.
MAY 1883.*

INSURANCE LAW.

DAMAGES - IN ACTION FOR NEGLIGENCE. - In an action for damages for personal injuries, the law will not allow the plaintiff to recover for his own loss of

FIRE POLICY-CONDITION AS TO CHANGE OF TITLE AVOIDING. A provision in a fire policy rendering it void if the title to the property insured be changed in any way other than by succession by reason of

time and loss of capacity to labor, and in addition death, or if the policy be assigned without written as

thereto, recover what he has to pay another to supply that loss of labor. Blackman v. Proprietors of Gardiner and Pittston Bridge. Opinion by Watson, J.

MONEY HAD AND RECEIVED FROM ONE PARTY FOR ANOTHER-WHEN DEMAND UNNECESSARY. - The defendant as agent for S. and M.,to pay their employees, deducted from the wages of the men the amount due from them severally to the plaintiffs on store account, and then retained in his own hands the sums thus deducted, alleging that the plaintiffs were indebted to him to that amount, when in fact they owed him nothing. Held, that the plaintiffs were entitled to recover the sums thus retained by the defendant, in an action for money had and received, and that it was not necessary to show a demand before bringing the action. The case falls within the doctrine maintained in Hall v. Marston, 17 Mass. 575, which has been affirmed and supported in many other cases. An action for "money had and received" is a most liberal action, and may be as comprehensive as a bill in equity. It was held in the case cited that the action may be supported without any privity between the parties, other than created by law, and that the law may create both the privity and the promise. The broad ground is there taken that whenever one man has in his hands money which he ought to pay over to another, he is liable to the action, although he has never seen or heard of the party who has the right to it. This doctrine applies to all cases when no rule of policy or strict law intervenes to prevent. Freeman v. Otis, 9 Mass. 272; Hills v. Bearse, 9 Allen, 403; Lewis v. Sawyer, 44 Me. 332. Keene v. Sage. Opinion by Virgin, J.

PAYMENT NEGOTIABLE INSTRUMENT ACCEPTED IS NOT UNLESS PAID-TOWN DEBT.--(1) The creditor of a town received from the treasurer a check in part payment of the debt, and a negotiable note signed "Т. B. Swan, treasurer of the town of Minot," for the balance. Held, that the note, having been taken by the creditor under a misapprehension caused by the treasurer, was not evidence of a payment pro tanto of the demand for which it was given, and that the town was liable on the original demand to the extent of such note. Melledge v. Boston Iron Co., 5 Cush. 158; Perkins v. Cady, 111 Mass. 318; Appleton v. Parker, 15 Gray, 173; Fowler v. Ludwig, 34 Me. 455; Paine v. Dwinel, 53 id. 52; Strang v. Hirst, 61 id. 15; Olcott v. Rathbone, 5 Wend. 490; Everett v. Collins, 2 Camb. 515; Puckford v. Maxwell, 6 D. & E. 152, (2) Where the money is in fact paid over to the creditor on such a debt, and re-borrowed by the treasurer on the credit of the town, and a note signed as above given therefor, the creditor cannot recover the amount of such note of the town without showing that the money was in fact appropriated to the legitimate uses of the town. Bessey v. Unity, 65 Me. 347; Parsons v. Monmouth, 70 id. 262; Billings v. Monmouth, 72 id. 174. (3) A debtor who appropriates the funds out of which a check given by himself or his agent in payment of a debt is to be paid, and thereby causes the check to be dishonored, cannot afterward claim that there has been a payment by means of it. Atkinson v. Inhabitants of Minot. Opinion by Barrows, J.

*To appear in 75 Maine Reports.

sent of the company indorsed thereon, is reasonable and just. But it does not apply to a stock of goods disposed of in the ordinary course of trade, unless the sale be in mass, or a new member be admitted into the firm. North Carolina Supreme Court, February Term, 1883. Biggs v. North Carolina Home Insurance Co. Opinion by Ruffin, J. (88 N. C. 141.)

LIFE POLICY-INSURABLE INTEREST-TENANT INSURING LIFE OF LANDLORD. - Where there is, when the contract is made, an adequate insurable interest to support the policy, the insurer must pay the full amount of insurance according to the contract, without reference to the subsequent diminution or cessation of the insurable interest. Where the tenant of a landlord having only a life interest in the land, insured the landlord's life for the full term of the life assured, he is entitled to recover the face of the policy, regardless of the expiration of the lease, and cannot be limited to the value of the leasehold, either at the time of the death or date of the policy, upon any theory that the contract is one of indemnity, or that any insurance over the interest actually existing at the death is a wagering contract. U. S. Cir. Ct., W. D. Tennessee, May 26, 1883, Sides v. Kuickerbocker Life Insurance Co. Opinion by Hammond, J. (16 F. R. 650.)

MARINE POLICY-MEANING OF "SEAWORTHY GULF OF MEXICO PART OF ATLANTIC OCEAN.-(1) Seaworthy in a marine policy held to mean in such a condition of strength and soundness as to resist the ordinary action of the sea, wind, and waves during the contemplated voyage. A ship is seaworthy, in this sense, when her hull, tackle, apparel, and furniture are in such a condition of soundness and strength as to withstand the ordinary action of the sea and weather. Where it was established that the vessel was sound and seaworthy for two years previous to her loss, and that she was wrecked in a cyclone, the burden of proof is upon the insurers to establish, satisfactorily, the alleged unseaworthiness. (2) The loss of a vessel wrecked in the Gulf of Mexico is covered by a policy of insurance containing a special clause by which the ship is limited "to navigate the Atlantic ocean between Europe and America;" the Gulf of Mexico being a part of the Atlantic ocean. U. S. Cir. Ct., E. D. Louisiana, June, 1883. The Orient. Opinion by Pardee, J. (17 F. R. 916.)

MUTUAL BENEFIT CERTIFICATE-WHAT INCLUDED IN CONDITION AS TO DEATH BY POISON.-A mutual benefit association certificate which was limited to insurance against death or personal injury "caused by external violence and accidental means," contained a clause declaring that the benefits under it should not extend to any death or disability which might have been caused "by the taking of poison." Held, that it was not necessary to defeat liability for death by poison, that the poison be taken with an intent to produce death. If the poison was innocently taken, and without any knowledge of the injurious effect which it was likely to produce, the insured could not recover. Pennsylvania Supreme Court, Feb. 12, 1883. Pollock v. United States Mutual Accident Association. Opinion by Mercur, J.

RECENT ENGLISH DECISIONS.

SALE OF PERSONAL PROPERTY TO BE SHIPPED-PAYMENT DUE WHEN BILL OF LADING PRESENTED.

Where by the terms of the contract of sale of goods to be shipped payment is to be made in exchange for bills of lading of each shipment, the purchaser is bound to pay when a duly indorsed bill of lading, effectual to pass the property in the goods, is tendered to him, although the bill of lading be drawn in triplicate, and all the three are not then tendered or accounted for; and if he refuses to accept and pay, he does so at his own risk as to whether it may turn out to be the fact or not that the bill of lading tendered was an effectual one, or whether there was another of the set which had been so dealt with as to defeat the title of the purchaser as indorsee of the one tendered. Per Brett, M. R., the seller of such goods should make every reasonable exertion to forward the bills of lading to the purchaser as soon as possible after the shipment, but there is no implied condition in such a contract that the bills of lading shall be delivered to the purchaser in time for him to send them forward so as to be at the port of delivery either before the arrival of the vessel with the goods or before charges are incurred there in respect of them. Ct. of App., April 28, 1883. Sanders v. Maclean. Opinions by Brett, M. R., aud Cotton and Bowen, L. JJ. (L. R., 11 Q. B. D. 327.)

CORRESPONDENCE.

RELIEF OF COURT OF APPEALS.

Editor of the Albany Law Journal:

I am very glad to see that you have called attention to the present condition of the calendar of the Court of Appeals. It is a subject of vital importance, not only to the bar, but to all litigants in our State, present and prospective--and therefore to all the people of the State. For who knows how soon he may be compelled to be a litigant, plaintiff or defendant, in a civil or criminal action? You will remember that before the organization of the present court, the old Court of Appeals was terribly behind. It was stated in the Constitutional Convention of 1867, by Mr. Cooke of Ulster, that "every suitor knows that when a case comes to the Court of Appeals all proceedings in it are suspended for some six or seven years." (See vol. 3, Proceedings and Debates, p. 2283.) That convention devised our present system. It was thought that by the aid of a commission to clear off the old cases, the new court would be able to "keep up" with the new cases as they came up. This was not however by any means the unanimous conclusion of the convention. Many saw and foretold (among others Mr. Cooke) that in a few years a "block" must come again, and the old evil of delay return. Well it has come. It cannot grow better, under our present system, but with the constantly increasing litigation of this great State, it must grow worse from year to year. The fault is not with the judges. They are able and industrious. But it is utterly impossible for seven men, sitting together, all giving judgment in every case, to consider carefully the cases coming before them and keep up with the business of the court. Some remedy must be applied, or the existence of the court will be not a help, but an absolute obstruction to justice. What are the remedies suggested?

1. A further limitation of cases appealable to that

court.

We have already a limitation of $500. A further limitation might be imposed by the Legislature, without the necessity of a constitutional amendment. But an increase to $1,000 would amount to very little. A trifling proportion of the cases now in the court involve less than $1,000. No limitation less than $5,000

would be very effective in diminishing the calendar. Even with this limitation, the United States Supreme Court is hopelessly in arrear. And such a limitation which would make the court a rich man's court, and practically a court almost exclusively for the benefit of New York city, would not be tolerated by the people. No Legislature is likely to adopt such a limitation.

2. A commission. This would be at best a makeshift. During its existence we should have two absolutely independent courts of last resort, necessarily differing in views, and neither bound by the decisions of the other. Let us hear no more of Commissions!

3. The enlargement of the court, so that all the judges need not sit at once, thus making practicable a substantially continuous court, sitting every month in the year, except perhaps July, August and September.

This plan was suggested and advocated by Mr. Cooke and others, in the Constitutional Convention. He proposed to make the number of judges nine, five to constitute a quorum (the chief judge always to be one). The concurrence of four judges to be necessary to reverse a judgment. The chief judge to designate the judges to hold any term and to have power to assemble all the judges for consultation and review of any case or cases pending in the court. (See vol. 3, Proceedings and Debates, Constitutional Convention of 1867, p. 2282.)

My own opinion is that the number of judges should be larger; eleven, or perhaps twelve; so as to provide for the contingency of illness, etc. Or there might be a provision for designating Supreme Court Justices to act as substitutes for judges of the Court of Appeals, when disabled or absent. The details of the plan could easily be worked out; but the great feature of it would be the increase of the number of judges, without increasing the number necessary for a quorum, so that each judge should have time to consider the cases heard by him, and write opinions, without interfering with the sessions of the court; with a provision that in cases of great importance or great difficulty the opinion of the whole court might be takenunder such a system there might be a new calendar every month-provision might be made for Special Terms to hear appeals from orders, in which, if thought best, three judges might be made to constitute a quorum. Such a system could of course be adopted only by a constitutional amendment, which would require the assent of two Legislatures; but when adopted it would give the people of the State a court which could hear and decide appeals promptly, without overtaking the judges, and thus would prevent appeals solely for delay. The additional expense of such a system in my judgment is not to be considered in comparison with the benefits to be derived from it. These thoughts, hastily and imperfectly expressed, are submitted, Mr. Editor, in the hope that they may lead to a fuller and more thorough discussion of the subject by others more competent; and that some plan will be adopted that will give the needed relief. Μ. Η.

ALBANY, December 24, 1883.

Editor of the Albany Law Journal:

Referring to the serious question you discuss in your current number, viz.: "What relief for the Court of Appeals shall be adopted?" I venture to contribute a suggestion. The question involves both business principles and the claims of humanity. As to the latter you say, referring to the arduous labors of the judges to clear the calendar "but at what a sacrifice of life and health" this work has thus far been done.

My suggestion is this: Let a new Court of Appeals be organized by an amendment to the State Constitution. It may be known as a Special Court of Appeals, or a Commission of Appeal. Let this court consist of five judges. Let its jurisdiction be limited to all appeals involving probate questions, suits by and against executors and administrators, also construction of wills, including all appeals from decisions of surrogates, also all appeals in criminal cases.

This assignment would probably give the new court plenty of work; but if not, appeals in life insurance cases might be properly added as having a quasi resemblance to probate cases, at least in the fact that they relate to and affect estates of deceased persons. Yours,

BROOKLYN, N. Y., Dec. 24, 1883.

J. W.

CODE OF CRIMINAL PROCEDURE, § 717; PENAL CODE, § 222.

Editor of the Albany Law Journal:

In reply to "Subscriber" in No. 723 of the ALBANY | LAW JONRNAL, regarding section 221 (I suppose he means section 222, Penal Code) and section 717 of Code of Criminal Procedure, and to Mr. Hale in No. 724, I would say that section 717 of Code Criminal Procedure is not inconsistent with section 222,

Penal Code.

Section 56 of Code Criminal Procedure gives courts of special sessions "exclusive jurisdiction" (in first instance) to hear and determine the several offenses therein named as "assault in the first degree," subject to the power of removal provided for in section 57, Code Criminal Procedure (or for some cause rendering the magistrate an improper person to try the defendant, as prejudice, relationship, etc., so that he could not give a fair impartial judgment), which right and power of removal has nothing to do with courts of special sessions or courts of record as such.

The Penal Code defines assault in the third degree, and also the sentence to be pronounced by the court in judgment upon conviction therefor. See sections 219, 222, Penal Code. The fifty-sixth section of Code Criminal Procedure gives courts of special sessions exclusive jurisdiction to try the offense (assault in third degree) as above stated. Must not said court on conviction pronounce the judgment specifically made for this offense?

As to the several other offenses named in section 56 of Code Criminal Procedure there is no specific judgment to be pronounced by the court on conviction, on each particular offense; but a general provision for all, as in section 717, Code Criminal Procedure. That is, section 717 provides for all cases within the jurisdiction of courts of special sessions generally, and where no specific judgment is provided for, as in assault in third degree.

Assault in third degree must be tried in court of

special sessions (section 56, Code Criminal Procedure) if not removed to a court of record, as per section 57, Code Criminal Procedure, and in whichever court judgment is given on conviction, the judgment and sentence of the court must be according to section 222, Penal Code. An act of the Legislature might aid by an amendment to make it clearer.

PERRY, Dec. 18, 1883.

O. HARRIS.

NEW BOOKS AND NEW EDITIONS.
SPEAR'S FEDERAL JUDICIARY.

The Law of the Federal Judiciary, a treatise on the provisions of the Constitution, the laws of Congress, and the judicial decisions relating to the jurisdiction of, and practice and pleading in the Federal courts, by Samuel T. Spear. Baker, Voorhis & Co. 1883.

long needed. It is not surprising therefore that Dr. Spear's publication has met with a general welcome from bench and bar. After the testimony of the Federal judges in its favor, it would be in doubtful taste, even if we were so disposed, to criticise Dr. Spear's efforts, embodied in this last publication. But we are not so disposed; the useful character of the work, and its excellent quality calls for praise, not criticism.

The greatest merit of a practice book is a methodical arrangement of its subject-matter. What seems so easy is often extremely difficult, as the frequent failures in this direction bear evidence. Dr. Spear's arrangement is admirable, and enables the practitioner to readily diagnose the subject he has in hand.

Part I. relates to the Federal judicial power in the abstract. Part II. to the extent of such power, or to the power applied in the special case.

In Part II. each class of cases in which the Constitution authorizes the judicial establishment to act is taken up seriatim, and the authorities collated and briefly discussed, or referred to the proper point. Ordinarily this treatment of authorities is confused by reason of the difficulty of extracting the precise ratio decidendi from the given case. But Dr. Spear seems to have an unusual aptitude in evolving the principle from adjudged cases, as well as in referring the authority to its proper place.

Part III. contains a very excellent description of the practical modes in which the Federal judicial establishment exercises the judicial powers of government. Here the jurisdictions of the various courts are shown again, in detail and sharply contrasted. That jurisdiction of the Supreme Court which is exercised by means of the great prerogative writs strikes us as particularly good, and it hitherto has been difficult to readily ascertain.

Part IV. which treats of the removal of causes from the State to the Federal courts, sums up all the current authority in this branch of practice-learning, and it is convenient to have it embodied in works of practice where it properly belongs. We presume the discussion of the more uncommon propositions, such as at what term an equity cause in which there is a feigned issue may be removed into the Federal courts, and whether under the latest act foreigu defendants may not remove an indivisible cause in which citizens are made co-defendants, are too refined for extended discussion, no express adjudications having yet fully determined these points. It is certain that Congress has the power to direct a removal of suits in which foreign subjects are joined as parties. Whether it has done so, is the question. None of the text writers discuss these particular propositions. Judge Blatchford has decided the latter point adversely, but the Supreme Court has not considered it, we believe.

It is unnecessary to mention each of the other parts in which this book is divided for more convenient treatment. We have examined them and found them thorough and comprehensive. Part VI. is particu

larly good. We looked there to find whether the

almost forgotten dissertation of Du Ponceau, concerning the common-law jurisdiction of the Federal courts, in its day a classic, could be found. Dr. Spear had not over-looked it, although the cases have long superseded it.

We have no hesitation in pronouncing this new book an excellent practical treatise, indispensable to the practitioner in the Federal courts. We would suggest to Dr. Spear that he supplement it by a volume of practice forms, well approved in the Federal courts. Such a work with judicious marginal notes would also cover good ground, and prove welcome, we have no doubt. No one could cover this ground so easily and so accurately at the present time as Dr.

A new and well printed work on the jurisdiction, practice and pleadings in the Federal courts has been | Spear.

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CORPORATIONS (see Current Topics; Taxation).

VOL. 28.

on...

181

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Ecclesiastical law; Mackonochie case

DEFENSE of real estate, force as..

145

121

Edmonds' select cases, reply to criticism of review of 342 DEVISE (see Leading Articles).

evidence, conversation through telephone.

422

DISSECTION and resurrection...

107

practical tests in. People v. Carney

62

good name, value of, as established by North Caro

DIVORCE (see Current Topics).

lina Supreme Court

201

Guiteau trial, opinion of Lord Coleridge as to con-

ECCLESIASTICAL LAW (see Current Topics).

duct of

361 ENGLAND (see Recent English Decisions).

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482

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innkeeper, liability for valuables stolen.

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IOWA Supreme Court Abstract (see Recent American
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561

right of wife to exclude husband from her house 222

Mason, pardon of, by President

422

JUDGE (see Current Topics).

municipal corporation, liability for negligence of

fire department..

461

Nelson, the late Mr. Justice, presentation of por-

trait of, to Court of Appeals

402

O'Donnell murder case, exclusion of Gen. Pryor,
London Law Journal on

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KNOWLEDGE (see Presumption).

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