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"So far is Law to be placed in the scale with War, as it is to be the last Refuge, never to be used but when all means else do fail. And then the Pleaders ought to hold themselves to that. Who vindicates the Law, does no man wrong: But he that digresseth to impertinences, or the personal stains of men, is rather a fly that buzzes and sucks the sore, than a Champion for Truth, or a helmet to keep the head of justice whole."

LIMITATION OF EASEMENT BY ACTS OF GRANTEE.

NEW YORK COURT OF APPEALS-NOVEMBER 9, 1877.

ONTHANK V. LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD Co.

Plaintiff, by written instrument, gave defendant a right to lay and maintain across his land a pipe to convey water from a spring. The instrument did not specify the size of the pipe or where it should be laid. Held, that by laying pipe of a particular size across plaintiff's land defendant fixed the size, and was not entitled thereafter to replace it by pipe of a larger size.

APPEAL by defendant from an order of the General

Term of the Supreme Court in the Fourth Department granting a new trial. The facts appear in the opinion.

A. P. Laning, for appellant.

H. C. Kingsbury, for respondent.

EARL, J. In May, 1863, one Brown, whose farm adjoined that of the plaintiff, executed to the Buffalo and State Line Railroad Company a deed, granting to it and its successors and assigns forever, the right to enter upon his land "for the purpose of building and maintaining a reservoir for water, and laying down and maintaining an iron pipe or conductor to carry the water from said reservoir to the water-tanks at the Portland station, and also the right to build and maintain blind and covered ditches to conduct the water to the said reservoir; the said iron pipe is to be laid at least two feet below the surface of the ground." The plaintiff, knowing of the contents of this deed, on the same day executed to the same company a deed granting to it, and its successors and assigns forever, the right to enter upon his land "for the purpose of laying down and keeping in repair an iron pipe or conductor, to carry water to the water-tank near the Portland depot, which pipe are to be laid at least two feet below the surface of the ground." The defendant has succeeded to the rights of the grantee in these deeds. At the date of the deeds there was a spring on Brown's land, the water of which flowed out of his land into and across plaintiff's land in a well-defined natural channel, which furnished a constant supply of water for plaintiff's cattle and horses.

After the deeds were given the grantee excavated a reservoir upon Brown's land and collected therein the water of the spring and of the adjacent land, and it laid down two-inch iron pipe from the reservoir across Brown's land and plaintiff's land to Portland station. The pipe thus laid down remained until 1871, and dur ing all that time there was enough surplus water flowing in the old channel to supply all plaintiff's wants. In 1871 the defendant improved and repaired the reservoir and the drains leading into it, and put down a four-inch pipe instead of the two-inch pipe, and thus

used so much of the water of the spring as to leave running an insufficient quantity for the use of the plaintiff. This action was brought for the injury caused plaintiff by laying down the enlarged pipe, and thereby diverting the increased quantity of water.

Plaintiff's grant to the railroad is general and indefinite. It does not define or limit the place in which the pipe was to be laid, nor specify what water was to be conducted. Hence, the surrounding circumstances, such as the existence, of the spring, the channel over plaintiff's land, the execution of the deed by Brown, the topography of the country, and the acts of the parties, both prior and subsequent to the grant, may be considered for the purpose of learning the intention of the parties, and thus defining and limiting the easement granted. French v. Hays, 43 N. H. 30.

It is thus made manifest that it was intended by plaintiff's grant to give the right to lay down pipe to conduct water from the reservoir on Brown's land over his land to the Portland station, which would otherwise flow in the natural channel above mentioned.

After the grantee had once laid its pipe and thus selected the place where it would exercise its easement thus granted in general terms, what was before indefinite and general became fixed and certain, and the easement could not be exercised in any other place. This is confessedly so in reference to rights of ways granted in similar terms. Washb. on Easem. 225, 240; Wynkoop v. Burger, 12 Johns. 222. And the same rule of construction was applied to the right to lay an aqueduct from a spring granted in general terms in Jennison v. Walker, 11 Gray, 423. In that case Bigelow, J., said: "Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised cannot be definitely ascertained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and definite course, with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee." He says: "This rule rests on the principle that when the terms of a grant are general or indefinite so that its construction is uncertain and ambiguous, the acts of the parties contemporaneous with the grant giving a practical construction to it, shall be deemed to be a jus, exposition of the intent of the parties."

It is clear, then, that the right to lay the pipe under plaintiff's grant was fixed by the act of the grantee and the acquiescence of the grantor to the place taken, and it cannot be exercised in any other place across plaintiff's land. But why is not the right also fixed for the same reasons as to the size of the pipe and the quantity of water to be diverted? I can perceive no reason for confining the operation of this rule to the mere place where the right is to be exercised. There is the same reason for applying it to the entire right granted. In Bannon v. Angier, 2 Allen, 128, the same learned judge again said: Where a right of way or other easement is granted by deed without fixed and defined limits, the practical location and use of such way or easement by the grantee under his deed, acquiesced in by the grantor at the time of the grant and for a long time subsequent thereto, operate as an assignment of the right, and are deemed to be that which was intended to be conveyed by the deed, and

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are the same in legal effect as if it had been fully described by the terms of the grant."

The language used in plaintiff's grant shows quite clearly that it was not intented that after the grantee had laid down a pipe it should have the right to enter upon the land to lay down a larger pipe. The right granted was to enter upon the land and lay down a pipe two feet below the surface, and to keep that pipe in repair-not to enter upon the land at any time and dig up the soil for the purpose of laying down a larger pipe.

Plaintiff's action is, therefore, maintainable, and the order of the General Term must be affirmed.

All concur, except Church, Ch. J., not voting. Folger and Miller, JJ., absent.

LIABILITY OF TELEGRAPH COMPANIES. ENGLISH COURT OF APPEAL, NOVEMBER 3, 1877. DICKSON AND OTHERS V. REUTER'S TELEGRAPH COMPANY (LIMITED).

The recipient of a telegram, misdelivered to him through the negligence of a telegraph company, cannot, in the absence of an express contract with the company, maintain an action against them to recover damages for a loss occasioned by his having acted on the tele

gram.

Plaintiffs carried on business as merchants at Valparaiso, and were a branch house of a firm at Liverpool. De fendants, a telegraph company, through the negligence of their agent, misdelivered a telegraphic message to plaintiffs. The message purported to be from plaintiffs' Liverpool house, and to be a large order for barley; but in fact it was not from the Liverpool house, nor intended for plaintiffs. Plaintiffs executed the supposed order, and, having suffered a heavy loss in consequence, claimed damages against defendants. On demurrer to a statement of claim setting out the above facts, it was held (affirming the decision of the Common Pleas Division), that plaintiffs were not entitled to maintain their action, as there was no contract between themselves and defendants, nor any duty upon defendants to transmit messages correctly.

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PPEAL from Common Pleas Division. The case in the court below is reported 35 L. T. Rep. (N. S.) 842.

The plaintiffs' statement of claim was as follows: 1. The plaintiffs are merchants carrying on business at Valparaiso, under the style or firm of Dickson, Bennett & Co., and were a branch house of the firm of Dickson, Robinson & Co., of Liverpool.

2. The defendants are a telegraph company, having their chief offices in London, and agencies in Liverpool and in various parts of the world, including South America. In December, 1874, the defendants had an agency at Monte Video, but not at Valparaiso.

3. Previous to December, 1874, the plaintiffs' Liverpool firm were in the habit of sending messages to the Valparaiso firm through the defendants' company, and were instructed by the défendants to head such messages by the registered cipher word "Felix," indicating that the messages were intended for the plaintiffs' Valparaiso firm. The plaintiffs' Liverpool firm accordingly so headed their messages, and still continue so to head them.

5. On the 26th December, 1874, the plaintiffs received at Valparaiso a telegraphic message which had been transmitted by the defendants from Monte Video, in the following words and figures: "Dickson Bennett Valparaiso - London - 24 - ship - distilling barley steamer-36-cost-freight-quarter

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6. The signification of such message, when written at full length, was understood by the plaintiffs to be, and is, as follows: To Dickson, Bennett & Co., Valparaiso, a message dispatched from London, the 24th inst. ship distilling barley by steamer at 36s. cost and freight per quarter of 4201b., or 34s. by sailing vessel. Stop purchases of nitrate silver, 57%1⁄2d per ounce. Remit from Dickson, Liverpool, through Havas, Monte Video.

7. Such message was not in fact sent to the plaintiffs by the Liverpool firm, nor was it intended for the plaintiffs. The misdelivery of the message was caused by the negligence of the defendants or their agents.

8. On receiving the telegram the plaintiffs supposed, and were justified in supposing, that it contained the instructions of their Liverpool firm, and the plaintiffs thereupon proceeded to execute the order in the ordinary course of business.

9. On the 15th February, 1875, the plaintiffs' Liverpool firm received a letter from their Valparaiso firm, advising a large shipment of barley. Inquiries were made, and the blunder of the defendants was discovered, and the plaintiffs' Liverpool firm lost no time in telegraphing to their Valparaiso firm to discontinue the shipments; but before the telegram reached them they had already completed several other purchases, which were forwarded to England. 10. There were three shipments of barley under the supposed instructions--3,299 bags were shipped per Illimani, S. S.: 2,773 bags per Cordillera, S. S. and 8,540 sacks per Zadok.

11. In consequence of the fall of the market for barley, the plaintiffs have lost on the first shipment £687 178. 1d, on the second shipment £441 9s. 11d, and on the third shipment £1,481 17s. 8d.

The plaintiffs claimed £2,611 48. 8d damages, with interest on that sum from the 24th May, 1876, until payment.

The defendants demurred to the plaintiffs' statement of claim, on the ground that it showed no contract between the plaintiffs and the defendants, and no breach thereof, and did not, independently of contract, disclose any matter in respect of which any action can be maintained by the plaintiffs against the defendants, etc.

Joinder in demurrer.

The Common Pleas Division upheld the demurrer, and the plaintiffs appealed.

Herschell, Q. C. (Benjamin, Q. C., and W. H. Butler with him), for the plaintiffs. There is here a breach of warranty, the defendants having warranted to the plaintiffs that they had been employed to deliver this. message. Duties are imposed upon the defendants as to the manner in which they carry on their business, and they are responsible to those who may be injured by their negligence. They have represented to the plaintiffs that they received a certain message, whereas, in fact, such message never was received. There is a warranty by the defendants that they have been authorized to receive messages. In a less strong case than this the American courts held that an action lies. In Playford v. The United Kingdom Electric Telegraph Co., L. R., 4 Q. B. 706, there was a sender; here there was none. The defendants warrant that they act as agents. [BRAMWELL, J. A. The cases are not quite analogous. In the present case the message was not for the man at all; in Playford v. The United Kingdom Telegraph Co. there was a variation in the words

of the message.] They warrant that they have authority to send; perhaps not the accuracy of the message. In Collen v. Wright, 28 L. T. Rep. (N. S.) 267; 7 F. & B. 301; and in Exchequer Chamber, 30 L. T. Rep. (N. S.) 209; 8 E. & B. 647, the defendant represented himself as agent, not being so in reality, and it was held that an action lay against him; so that where a person represents himself to be an agent he warrants himself as such. Randall v. Trimen, 18 C. B. 786, is also in support of this proposition. A person who carries on a business, the negligent conduct of which may result in serious damage to the public who employ him, renders himself liable if he is guilty of negligence. Here the defendants negligently carried on their business. There was a negligent use of the cipher of the plaintiffs who have employed them from time to time. Is there not an obligation from them to the plaintiffs to use due care in the use of their cipher? Is there not an implied undertaking to use such care? May not the fact of the defendants being frequently employed by us create a liability? There are many American cases on the question of the defendants' liability. In The New York and Washington Printing Tel. Co. v. Dryburgh, 35 Penn. St. 298, a telegraph company was held liable for misfeasance. There is a distinction between an erroneous statement, where no relation exists between the parties, and an act done in the - ordinary course of business. The principle is that, if a man carries on his business in such a manner that negligence will, to his knowledge, cause an injury, the injured party may have his action. My case is stronger than an erroneous message, for here there was no message at all the defendants acted without instructions, it was their own voluntary act. With reference to agency, the principles upheld in Collen v. Wright, ubi sup., should be extended to this case.

Watkin Williams, Q. C. (with him H. D. Greene), for the defendants. A telegraph company cannot be responsible for a message they do not even understand. In paragraph 6 of the statement of claim it is said that the message was understood by the plaintiffs, but not a word about the defendants understanding it. The defendants were mere conveyers. The first point for plaintiffs was that there was here a warrant of authority by the telegraph company on the part of the sender to send and deliver a message. The second, of fraudulent misrepresentation, was abandoned. The third was the negligent performance of a business, the carrying on of which created a duty to the public at large. As to the first point, it is necessary to establish a relationship of contract between the parties. A telegraph company are merely mechanical senders, and do not even understand what they send. As to the third point, negligence is alleged; but negligence is the breach of a duty. But here no relationship is shown between the parties to create a duty, and to ascertain what is negligence you must first show the duty.

BRAMWELL, L. J. I am of opinion that this judgment must be affirmed. The general rule is undoubted that if a statement is untruly made, even though it is acted upon and damage ensues, no action will lie unless the statement was made fraudulently. Mr. Herschell says that Collen v. Wright, ubi sup., shows an exception to the general rule, and that this case comes under it. Collen v. Wright establishes that if a person makes an assertion that he has authority to act, and so causes another to enter into negotiations with a person whose authority he represents himself to

hold, he is liable to the person whom he thus causes to enter into such negotiations. But it does not appear to be so in this case. Here there was no request to any thing of any sort. The defendants simply deliver the message. There is no request by them to the plaintiffs to do any thing. This case is, therefore, distinguishable from Collen v. Wright. The next point alleged by Mr. Herschell is negligence. Mr. Williams says that a duty must be shown before negligence can be established. Duty can only arise out of contract or by law. If this duty arose by law then the law must be that an action will lie against a man for an innocent misrepresentation made through carelessness. But there is no such qualification, and, therefore, there is no action on the ground of negligence. Mr. Herschell says that this is done in the course of their ordinary business. Now, I see no difference between an inaccuracy in the course of this business and one in an ordinary matter. It was argued that the law must be in favor of the plaintiffs on account of the consequences. I think not. In the first place, one must look at general principles. If you say a man is liable for a negligent statement, however bona fide made, a man must not speak to another without qualifying every remark. A telegraph company is under an obligation to the sender of messages, and its natural desire to get custom is its guarantee for the best efforts of accuracy. A telegraph company may say, "I do not represent this message as true; you can repeat the message and see whether or no it is accurate." I see no similitude between the case of a carrier and this case, as in the former case there is an employment and an ownership, and even if the cases were analogous it is doubtful if an action would lie on the ground of misdelivery of the goods carried. The defendants here merely say, "I send a message for you; you can act upon it or not as you like, but we do not warrant its accuracy."

BRETT, L. J. I am of the same opinion. A telegraph company merely undertakes to deliver messages a priori; therefore, their only contract is with the person who employs them to send and deliver the message. Here there is no contract with the plaintiffs, They have made an erroneous communication, but they did not know that it was so. If they have made a misrepresentation of a fact, there is no action, because they did not make it fraudulently. Collen v. Wright has been said to make an exception to the general rule, but that case, I think, is founded on the independent rule, that if you invite a person, expressly or by contract, to negotiate with you on an assertion that you fulfill a certain character you warrant that you do fulfill that character. But Collen v. Wright does not say that misrepresentation alone would be sufficient to constitute the liability; there must be misrepresentation, coupled with the contract, entered into on an assertion that one has authority to act in a certain character. The telegraph company, as a mere messenger, did not invite the plaintiffs to act with them in any character; and this case is not within the principle established in Collen v. Wright. As to negligence, there can be no negligeuce unless there is a duty, and here no duty has been established. I cannot, therefore, see any liability on behalf of the defendants.

COTTON, L. J. I also am of the opinion that the judgment of the court below must be upheld. The telegraph company are simply conveyers of messages. They did not say, we are agents," but "here is a

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message, act on it or not as you like." They have, therefore, no obligation, and no contract as in Collen v. Wright. With regard to Mr. Herschell's argument as to negligence, I think that there is no guarantee by a telegraph company as to the accuracy of the sender. If so, where could you stop? From the nature of their business this is impossible. They cannot say nor guarantee who the sender may be, nor what is the nature of the message.

Judgment affirmed.

COURT OF APPEALS ABSTRACT.

ACTION.

1. To set aside lien of assessment: when it will not lie. - In an action to set aside the lien of an assessment for opening a street in Brooklyn as a cloud upon the title of plaintiff's land, the complaint alleged that the signatures of the property owners appended to the petition required, in order to render the opening and assessment valid, were taken from another document. Held, that as the petition itself, on its face, appeared regular and valid, and extrinsic evidence would be required to show its invalidity, the complaint stated enough facts to constitute a cause of action. Judgment of the General Term reversed and that of Special Term affirmed. Boyle v. City of Brooklyn. Opinion by Rapallo, J.

2. Stating bad ground of complaint does not invalidate complaint as to good ground.-The complaint also set forth as another ground an objection to the validity of the lien of the assessment which it was claimed would, if well founded, appear in proceedings to enforce the lien. Held, that that circumstance should not deprive plaintiff of his rights under the first ground of action, but, if true, the statement setting it forth might be treated as surplusage. Ib. [Decided Oct. 2, 1877. Reported below, 8 Hun, 32.]

COMMON CARRIER.

1. Stipulations against liability in contract: general words do not include negligence of carrier.— Plaintiff shipped animals by railroad under a contract, whereby he agreed to release and discharge the railroad company "from all claims, demands and liabilities of every kind whatsoever for or on account of, or connected with, any damage or injury to or the loss of said stock, or any portion thereof, from whatsoever cause arising." Held, that the contract did not release the company from liability for loss resulting from the negligence of the company or its servants. Where general words, in such a contract, may operate without including the negligence of the carrier or his servants, it will not be presumed that it was intended to include it. (New Jersey S. N. Co. v. Merch. Bank, 6 How. [U. S.] 344; Alexander v. Greene, 7 Hill, 533; Wells v. Steam Nav. Co., 8 N. Y. 375; Steinweg v.

43 id. 123; Magnew v. Dinsmore, 56 id. 168; Lockwood v. Railroad Co., 17 Wall. 357; Clark v. Railroad Co., 14 N. Y. 573.) Judgment of General Term reversed. Mynard v. Syracuse, Binghamton and New York Railroad Co. Opinion by Church, C. J.

2. Liability as to animals carried.-A carrier is excused from liability for loss caused by the inherent tendencies or qualities of animals; but beyond this the common-law liabilities exist against him the same as against the carrier of any other kind of property. Ib. [Decided Nov. 13, 1877. Reported below, 7 Hun, 399.]

CONTRACT.

Ratification of void contract: agency: effect of receipt.-Plaintiff, by a verbal contract, sold defendant, a railroad company, 2,000 cords of wood at a specified price. The wood was to be delivered at defendant's yard, and was to be subject to inspection and measurement by defendant, and a portion of the wood was to be delivered more than a year from the time the contract was made. A part of the wood was delivered and accepted by W., defendant's agent, for that purpose, and defendant paid for it. Thereafter, defendant leased its railroad to the D. & H. Co., who took charge of the same and retained the same employees, among whom was the agent mentioned. Plaintiff had no knowledge of the lease. Subsequently, he delivered the remainder of the wood at the place agreed upon, and the same was measured and accepted by the agent referred to. Held, (1) that although the contract was originally void under the statute of frauds, the delivery and acceptance of the wood by defendant bound it to pay the contract price therefor; (2) that the acceptance by the agent of the remainder of the wood bound defendant. Held, further, that a receipt by plaintiff, of part payment for the wood, after it had been delivered and accepted, from the D. & H. Company, did not release defendant, and this would not be affected by the form of a receipt for the money paid, signed by plaintiff at the time of such part payment. Judgment below affirmed. Barkley v. Rensselaer & Saratoga R. R. Co. Opinion per Curiam. [Decided Nov. 13, 1877.]

HUSBAND AND WIFE.

Ante-nuptial contract: presumption as to: when deemed invalid. Every presumption is against the validity of an ante-nuptial contract when it is asked to be enforced against the wife, and the burden of proof is cast upon the husband, or those who represent him, in order to uphold and enforce the same as a valid and subsisting agreement. The relation between parties intending to marry is confidential, and a court of equity will interpose its authority to set aside an instrument executed under such circumstances when there is evidence showing fraud or even when it appears that undue influence has been exercised when one party is so situated as to exercise a controlling influence over the will, conduct, and interests of another. Accordingly, where a woman intending to marry signed a contract whereby she released all her contingent rights as widow in the estate of her proposed husband, in consideration of $500, and she believed at the time that the contract gave her much more, which belief the husband encouraged, held, that the contract was invalid, and she was entitled to a distributive share of her husband's estate on his decease. (Sears v. Shafer, 6 N. Y. 268; Nesbit v. Lockman, 34 id. 167; Tarbell v. Tarbell, 10 Allen, 278; Fay v. Rickman, 1 N. C. 275; Woodward v. Woodward, 5 Sneed, 49; Kline v. Kline, 57 Penn. St. 120; Kline's Estate, 64 id. 122.) Judgment below affirmed. Pierce v. Pierce. Opinion by Miller, J.

[Decided Nov. 13, 1877.]

MARRIED WOMAN.

1. Contracts in behalf of, by agent: limitation of authority. The husband of defendant, who did not carry on any business in her own name, had authority "to make, sign, indorse and accept all checks, notes, drafts and bills of exchange for " the defendant and in her name, and this power was deposited in the bank

where she kept an account. Held, not to authorize him to bind her by a post-dated check given for a loan to him by plaintiff. Judgment below reversed. Nash v. Mitchell. Opinion by Allen, J.

2. What is not carrying on a separate business.-The management by a married woman of her landed property, the receipt of the rents and income, and disposing of them, is not a trade or business within the meaning of the statute enabling married women to carry on a trade or business. That statute has respect to business pursuits, mechanical, manufacturing or commercial. Ib.

3. The disabilities and liabilities of married women: burden of proof. -The disabilities of a married woman are general and exist at common law; the capabilities are created by statute, and are five in number, and exceptional. It is for him who asserts the validity of a contract of a feme covert by evidence to bring it within the exceptions. Ib.

[Decided Nov. 13, 1877. Reported below, 8 Hun, 471.]

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW.

1. Law impairing obligation of contract: change of remedy.-In modes of proceeding and forms to enforce a contract, a State legislature has the control and may enlarge, limit or alter them, provided that it does not deny a remedy or so embarrass it with conditions and restrictions as seriously to impair the value of the right. (Sturgess v. Crowninshield, 4 Wheat. 122; Mason v. Haile, 12 id. 378; Bronson v. Kenzie, 1 How. 311; Van Hoffman v. City of Iowa, 4 Wall. 535; Bruce v. Schuyler, 9 Ill. 253; Evans v. Montgomery, 4 Watts & S. 218; Read v. Frankfort Bank, 23 Me. 318.) Judgment of Supreme Court of Tennessee affirmed. State of Tennessee ex rel. Bloomstien, plaintiff in error, v. Sneed. Opinion by Hunt, J.

2. Substitution of one remedy for another not a violation of the constitutional provision. Plaintiff held bank bills which, under the law as he claimed, were payable for taxes to the State. In 1872, he tendered them to the collector for taxes, and they were refused. At that time he had a right to enforce his claim by mandamus, but a statute passed by the State legislature, in 1873, took away that remedy and provided that he might pay his tax under protest and bring action therefor against the collector, and if successful the comptroller should reimburse him out of the State treasury. Held, that a sufficient remedy was provided to enforce plaintiff's claim, and the statute was not invalid. Ib.

LIFE INSURANCE.

Effect of war upon contract: tender of premiums to agent in hostile territory does not prevent forfeiture.-S., residing at Petersburg, Virginia, before the war, procured a policy of insurance upon his life in the N. Insurance Company, located in New York. The policy was conditioned to be void if the premiums were not paid when due. The premiums were, up to the commencement of the war, paid to an agent of the company who resided at Petersburg, who was authorized to receive them and who was furnished receipts for such a purpose. After the war commenced, S. tendered the premiums to the agent, who refused to receive them, and tender was also made after the close of the war to him with like result. Held, (1) that the war suspended the contract of agency between the company and its agent, in the absence of an agreement to the contrary,

and the agent had no authority to receive the premiums, and a tender of them to him did not avail to save the rights of S. under the policy. (Conn. v. Penn., Peters' C. C. 525; Buchanan v. Curry, 19 Johns. 141; Fulz v. Stover, 22 Wall. 206; Dennison v. Imbrie, 3 Wash. C. C. 403; Ward v. Smith, 7 Wall. 447; Brown v. Hiatts, 15 id. 177; Montgomery v. United States, id. 395.) Judgment of Circuit Court, E. D. Virginia, reversed. New York Life Insurance Co., plaintiff in error, v. Davis. Opinion by Bradley, J.

PUBLIC OFFICER.

Government not responsible for laches of.-The fact that a goverment officer, in violation of his duty, dispenses with the requirement of the law, does not bind the government or release the liability to or of a surety who suffers loss by reason of the dispensation of such requirement. The government is not responsible for the laches or the wrongful acts of its officers. (Gibbons v. United States, 8 Wall. 275: United States v. Kirkpatrick, 9 Wheat. 735; United States v. Vanzandt, 11 id. 187; United States v. Nicholl, 12 id. 509; Jones v. United States, 18 Wall. 663.) Judgment of Circuit Court, N. D. Ohio, affirmed. Hart, plaintiff in error, v. United States. Opinion by Waite, C. J.

SURETYSHIP.

Misappropriation of moneys by public officer: when principal need not be proceeded against. A register of

the land office received fees under a provision of the act of Congress, March 3, 1853, which requires that "the surplus which shall remain" of such fees, beyond the compensation to which the register is entitled, "shall be paid into the Treasury of the United States as other moneys." The register was not entitled to hold the surplus in his own right. (United States v. Babbit, 1 Black, 55.) Held, that the neglect and refusal to pay over to the United States the surplus beyond the compensation to which he was entitled by law was a breach of the condition of his official bond, both as respected himself and the sureties in the bond, and that the United States were under no necessity to proceed against the principal in the bond by an action on the case for money had and received. Judgment of the Circuit Court, Iowa, reversed. United States, plaintiff in error, v. Babbit. Opinion by Swayne, J.

TRUSTS.

In favor of corporation not in esse: practice: trusts void for uncertainty: perpetuities. · A testator in the District of Columbia devised lands to trustees, or the survivor of them, and the heirs, executors and administrators and assignees of such survivor in trust, to hold for a site for a "hospital for foundlings," to be erected by an association to be incorporated by an act of Congress to be passed, such corporation to be approved by the trustees, their survivor or successors, and the land to be held until a corporation should be created by act of Congress which should be approved by the trustees. Held, (1) that the validity of charitable endowments and the jurisdiction of courts of equity never depended on the statute of 43d Eliz., chap. 4. (McGill v. Brown, Brightly, 346; Burr's Executors v. Smith, 7 Vt. 241; Fountain v. Ravinal, 17 How. 349.) (2) That the devise was not void for uncertainty. (Perry on Trusts, § 699; 2 Story's Eq. Jur., § 1,164, note, § 1,190, note;) nor (3) was it void as creating a perpetuity. (Croxall v. Sherrard, 5 Wall. 268; Franklin v. Armfield, 2 Sneed, 305; Dartmouth College v. Woodward, 4 Wheat. 641; Perrin v. Carey, 24 How. 195; Stanley v. Colt, 5

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