this clause does not necessarily import that a change of receivers dur- ing the life of the policy would work a change either in title or pos- session; (2) That the title is not in the receiver, but in those for whose benefit he holds the property; (3) That in a legal sense the was not in his possession, but in the possession of the court, through him as its officer.
4. The principle reaffirmed that when a policy is so drawn as to require in- terpretation, and to be fairly susceptible of two different constructions, that one will be adopted which is most favorable to the insured. Ib. 5. Although the policy in this case provided that no action upon it should be maintained after the expiration of twelve months from the date of the fire, yet the benefit of this clause might be waived by the insurer, and will be regarded as waived if the course of conduct of the insurer was such as to induce the insured to delay bringing suit within the time limited and if the insured delayed in consequence of hopes of adjustment, held out by the insuring company, the latter will not be permitted to plead the delay in bar of the suit. Ib.
6. Where a policy of marine insurance excepts losses and perils occasioned by want of ordinary care and skill in navigation, or by want of sea- worthiness, and a statute of the country to which the insured vessel belongs requires all vessels to go at a moderate speed in a fog, and the insured vessel, having a defective compass, is stranded while going at full speed in a fog, and a loss ensues, the burden of proof is on the insured to show that neither the speed at which the vessel was running nor the defect in the compass could have caused, or contributed to cause, the stranding. Richelieu and Ontario Navigation Co. v. Boston Marine Ins. Co., 408.
7. The exception in a marine policy of losses occasioned by unseaworthi- ness is, in effect, a warranty that a loss shall not be so occasioned, and it is therefore immaterial whether a defect in the compass of the vessel which amounts to unseaworthiness was or was not known before the loss.
8. When in a policy of marine insurance it is provided that acts of the insurers or their agents in recovering, saving and preserving the property insured, in case of disaster, shall not be considered as an acceptance of an abandonment, such acts in sending a wrecking party on notice of a stranding of a vessel, in taking possession of it and in repairing it, if done in ignorance of facts which vitiated the policy, do not amount to acceptance of abandonment; but it is a question for the jury to determine whether such acts, taken in connection with all the facts, and with the provisions in the policy, amounted to such an acceptance. Ib.
9. Although a protest by a master of a vessel after loss is ordinarily not admissible in evidence during his lifetime, yet in this case it was rightfully admitted, because it was made part of the proof of the loss. Ib.
10. A stranded insured vessel, having been recovered and repaired, was libelled and sold for the repairs, neither the owners nor the insurers being willing to pay for them. In an action between the owners and the insurer to recover the insurance; Held, that the record in that suit was not admissible against the insurer to establish acceptance of an abandonment. Ib.
A. OF THE SUPREME COURT OF THE UNITED STATES.
1. When the matter set up in a cross-bill is directly responsive to the averments in the bill, and is directly connected with the transactions which are set up in the bill as the gravamen of the plaintiff's case, the amount claimed in the cross-bill may be taken into consideration in determining the jurisdiction of this court on appeal from a decree on the bill. Lovell v. Cragin, 130.
2. Under the will of a testatrix who resided in New York, Cornell Uni- versity, a corporation of that State, was made her residuary legatee. It was provided in its charter that it might hold real and personal property to an amount not exceeding $3,000,000 in the aggregate. The Court of Appeals of New York having held that it had no power to take or hold any more real and personal property than $3,000,000 in the aggregate, at the time of the death of the testatrix, and that, under the jurisprudence of New York, her heirs at law and next of kin had a right to avail themselves of that fact, if it existed, in the controversy about the disposition of the residuary estate, this court held that such decision of the Court of Appeals did not involve any federal question and was binding upon this court. Cornell University v. Fiske, 152. 3. A federal question was involved in this case, arising under the act of Congress of July 2, 1862, 12 Stat. 503, c. 130, granting lands to the State of New York to provide a college for the benefit of agriculture and the mechanic arts. lb.
4. Upon appeal from a decree in equity of the Circuit Court of the United States accompanied by a certificate of division in opinion be- tween two judges before whom the hearing was had, in a case in which the amount in dispute is insufficient to give this court jurisdiction, its jurisdiction is confined to answering the questions of law certified. Union Bank v. Kansas City Bank, 223.
5. Upon the question of the construction and effect of a statute of a State, regulating assignments for the benefit of creditors, the decisions of the highest court of the State are of controlling authority in the courts of the United States. Ib.
6. An appeal from a decree of the Circuit Court of the United States, dis- missing a bill filed by creditors to set aside a mortgage by their debtor, is within the jurisdiction of this court as to those creditors only whose debts severally exceed $5000. Smith Middlings Purifier Co. v. Mc- Groarty, 237.
B. OF CIRCUIT COURTS OF THE UNITED STATES.
1. The Nashua and Lowell Railroad Corporation was incorporated by the State of New Hampshire June 23, 1835, “to locate, construct and keep in repair a railroad from any point in the southern line of the State to some convenient place in or near Nashua," seven persons being named as incorporators. The Nashua and Lowell Railroad Corpora- tion, (three out of the seven being named as incorporators,) was in- corporated by the State of Massachusetts on the 16th of April, 1836, "to locate, construct and finally complete a railroad from Lowell" "to form a junction with the portion of said Nashua and Lowell Railroad lying within the State of New Hampshire." The legislature of Mas- sachusetts, on the 10th of April, 1838, enacted that "the stockholders" of the New Hampshire Company "are hereby constituted stockhold- ers" of the Massachusetts Company, "and the said two corporations are hereby united into one corporation," and further provided that the act should "not take effect until the legislature of . . New Hampshire shall have passed an act similar to this uniting the said stockholders into one corporation, nor until the said acts have been accepted by the said stockholders." The legislature of New Hamp- shire, on the 26th of June, 1838, enacted "that the two corporations
are hereby authorized, from and after the time when this act shall take effect, to unite said corporations, and from and after the time said corporations shall be united, all property owned, acquired or enjoyed by either shall be taken and accounted to be, the joint prop- erty of the stockholders, for the time being, of the two corporations." A common stock was issued for the whole line, and for the forty-five years which intervened the two properties were under the manage- ment of one board of directors; but there was no other evidence that the stockholders had acted on these statutes; Held, that the New Hampshire Corporation, being a citizen of that State, was entitled to go into the Circuit Court of Massachusetts, and bring its bill there against a citizen of that State; and that its union or consolidation with another corporation of the same name, organized under the laws of Massachusetts, did not extinguish or modify its character as a citi- zen of New Hampshire, or give it any such additional citizenship in Massachusetts, as to defeat its right to go into that court. Nashua and Lowell Railroad v. Boston and Lowell Railroad, 356.
See EXTRADITION, 2;
HABEAS CORPUS, 1.
C. OF DISTRICT COURTS OF THE UNITED STATES. See HABEAS CORPUS, 3.
The waters of the Ohio River, when Kentucky became a State, flowed in a channel north of the tract known as Green River Island, and the
jurisdiction of Kentucky at that time extended, and ever since has extended, to what was then low-water mark on the north side of that channel, and the boundary between Kentucky and Indiana must run on that line, as nearly as it can now be ascertained, after the channel has been filled. Indiana v. Kentucky, 479.
See CONSTITUTIONAL LAW, A, 11, 12.
LANDLORD AND TENANT.
See LOCAL LAW, 10.
A plaintiff who delays for fifteen years after an alleged fraud comes to his knowledge before seeking relief in equity is guilty of laches, and his bill should be dismissed. Norris v. Haggin, 386.
1. In Louisiana the holder of one or more of a series of notes, secured by a concurrent mortgage of real estate, is entitled to a pro rata share in the net proceeds, arising from a sale of the mortgaged property, at the suit of a holder of any of the other notes; and an hypothecary action lies to enforce such claim, based upon the obligation which the law casts upon the purchaser to pay the pro rata share of the debt repre- sented by the notes that were not the subject of the foreclosure suit. Lovell v. Cragin, 130.
2. Such obligation, cast by law upon the purchaser, partakes of the nature of a judicial mortgage, and, in order to be effective as to third persons, (i.e. persons who are not parties to the act or the judgment on which the mortgage is founded,) it must be inscribed with the recorder of mortgages, and no lien arises until it is so registered. Ib.
3. Under the laws of Louisiana a claim for damages arising from alleged wrongful acts of a party with respect to removing personal property from a plantation while he had possession of it, and for waste com- mitted by him about the same time, are quasi-offences, and are pre- scribed in one year. Ib.
4. Section 354 of the Revised Statutes of Missouri of 1879, concerning voluntary assignments for the benefit of creditors, does not invalidate a deed of trust, in the nature of a mortgage, by an insolvent debtor, of all his personal property to secure the payment of preferred debts reserving a right of redemption. Union Bank v. Kansas City Bank, 223.
5. By the law of Missouri, one partner has power to bind his copartners by a mortgage of all the personal property of the partnership to secure the payment of particular debts of the partnership. Ib.
6. By the law of Missouri, a mortgage by one partner of the personal prop- erty of an insolvent partnership, to secure the payment of particular debts of the partnership, is valid, and does not operate as a voluntary assignment for the benefit of all its creditors under § 354 of the Re-
vised Statutes of 1879; although another partner does not assent to the mortgage and has previously authorized the making of a voluntary assignment under the statute; and although the partner making the mortgage procures a simultaneous appointment of a receiver of all the partnership property. Ib.
7. The filing of a voluntary assignment for the benefit of creditors, and of the assignee's bond, in a probate court, under the statutes of Ohio, does not prevent a creditor, who is a citizen of another State, and has not become a party to the proceedings in the state court, from suing in equity in the Circuit Court of the United States to set aside a mort- gage made by the debtor contemporaneously with the assignment. Smith Middlings Purifier Co. v. McGroarty, 237.
8. In Ohio, a mortgage by an insolvent trading corporation to prefer some of its creditors, having been held by the Supreme Court of the State to be invalid, under its constitution and laws, against general creditors, such a mortgage must be held invalid in the courts of the United States.
9. A and B intermarried in Arkansas in 1859, during which year a child was born to them alive, capable of inheriting, but died in 1862. In 1864, C died, the owner of estate, real and personal in Arkansas, leaving as sole heirs at law, his father, D, his brother, A, and a sister, E. The two latter became the owners in common of decedent's realty, subject to a life estate in D, their father. In 1870 D died, after which in 1871, A and E agreed upon a partition. A desiring to vest the title to his share in his wife- he being then solvent-con- veyed (his wife uniting with him to relinquish dower) to his sister E, all his interest in the lands inherited from his brother. By deed of date January 2, 1871, E (her husband joining her) conveyed to A's wife what was regarded as one-half in value of the lands for- merly owned by C, including those in dispute in this suit. This deed was recorded May 24, 1875, in the county where A's wife then and ever since resided. No other schedule of it, nor other record nor intention to claim the lands in dispute as her separate property was ever filed by her. After the date of the deed to A's wife, the lands in dispute were cultivated by him as agent of his wife, and in her name, for her and not in his own right. In 1884, his creditors obtained a judgment against him, and another on a debt contracted in 1881, sued out execution, and caused it to be levied upon the lands in dispute, and advertised them to be sold. A's wife brought a suit in equity to enjoin the sale upon the ground that the lands were not subject to her husband's debts, and that a sale would create a cloud upon her title; Held, (1) The constitution of Arkansas of 1868 placed property thereafter acquired by a married woman, whether by gift, grant, inheritance or otherwise, as between herself and her hus- band, under her exclusive control, with power to dispose of it or its proceeds, as she pleased; (2) The deed by E and her husband to A's
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