Central Law Journal. ST. LOUIS, MO., JULY 5, 1895. The recent decision of the Supreme Court of Wisconsin in the case of State v. Duket, calls attention to a serious defect in the law of that State, which may be found to exist in other States. The constitution of that State provides that the legislature shall not grant any divorce. It was, nevertheless, held that a statute of that State, providing that a sentence of imprisonment for life shall dissolve the marriage of the person sentenced, without any judgment of divorce or other legal process, is not in conflict with the constitution, and operates to absolutely dissolve the marriage when either party is sentenced for life. The action in the case mentioned was a prosecution for adultery, the gravamen of the alleged offense being that the defendant had married a woman whose husband had been sentenced to imprisonment for life, the marriage being contracted a few days before the reversal of the husband's conviction on appeal, although defendant was aware that proceedings for a new trial were then pending, and that defendant continued to cohabit with said woman after a reversal of the former husband's sentence. The court, in deciding the main question, says that the intent of the constitutional provision that the legislature shall not "grant any divorce" was not to restrict the legislature in the enactment of appropriate general laws, but the mischief sought to be suppressed was the granting of divorces by the legislature in special instances, by special laws-in view of the ease and facility with which such divorces might be procured, a power likely to be capriciously, improvidently and sometimes unjustly exercised. The court was, however, compelled to go further ard hold that the effect of the statute, as dissolving a marriage on the sentence of either party to life imprisonment, is not affected by the subsequent reversal of the | sentence. This result is logical, sound and supported by authority. The reversal of the sentence cannot operate to restore the parties to their former matrimonial relations, as in the case of reversal of a valid judgment of Vol. 41-No. 1. In divorce for mere error in its rendition. States where sentence to imprisonment in the State prison for a term of years is made ground for an action of divorce, it has been held that as soon as the sentence has been given the right of the other party to apply for a divorce is complete (Handy v. Handy, 134 Mass. 394), and that such right is not suspended by a bill of exceptions, on which the conviction and sentence may be reversed (Cone v. Cone, 58 N. H. 152). But the law should be amended so as to work a dissolution of the marital relation only upon the final affirmance of a sentence, or the expiration of the time to appeal. Indeed, this case will suggest forcibly the necessity for an amendment of the law so as to make a sentence of imprisonment ground merely for divorce. There is no reason why an innocent spouse should have her marriage dissolved if she prefers that the matrimonial status should continue. The decision of the United States Court of Appeals in the South Carolina registration case, reversing Judge Goff's ruling and dissolving the injunction granted by him, to which we called attention in a recent issue (40 Cent. L. J. 487), is based on the general ground that Federal courts cannot pass upon abstract political questions. Some State courts of highest resort pronounce upon the constitutionality of laws as an abstract proposition, but the United States Supreme Court never does. It is essentially a "case" court. Somebody must show that he is injured or imperilled, either in his property or civil rights by any given legislation before the court will so much as take up the question of its constitutionality. The bill of complaint in the case mentioned challenged the constitutionality of certain laws of South Carolina, but the question was raised on the threshold whether the case made was one of equitable cognizance. Chief Justice Fuller, who delivered an opinion, said that it was well settled that a court of chancery is conversant only with questions of property and the maintenance of civil rights. The court has no jurisdiction in matters of a political nature, or to interfere with the duties of any department of government except under special circumstances and when necessary for the protection of rights of property, or in matters merely criminal or merely informal, which do not affect any right of property. Here there is a plain and adequate remedy at law, nor does illegality alone afford ground for equitable interference. Tested by these principles the bill of complaint cannot be maintained, for it asserts no threatened infringement of the rights of property or civil rights, and no adequate ground for equity interposition. The merits of the question involved are gone into more at length in an opinion read by Judge Hughes, who says that the original bill contains no allegation that the provisions of law complained of were devised against the complainant or those for whom he sues on account of their race, color or previous condition of servitude, and that there are no averments in the bill which show that the case falls within the purview of the fifteenth amendment of the constitution of the United States. The bill charges that the effect of the provisions of the registration acts complained of is to give unequal facilities of registration to different classes of citizens, but it does not point out how this is so. It confounds privilege with protection. The bill has no reference to a Federal election in setting out complainant's case. The gravamen of the bill contemplates only a State election to be held for members of the State convention to convene in August next, and it is not shown that any federal election is to be held in the State of South Carolina before November, 1895. The judge added that while the right of the judiciary to pass upon the constitutionality of the laws is undoubted, it has that right simply as an incident to its protection of private rights. It has not that right as a mere means of settling abstract questions, and even in the enforcement of private rights it has not the power to interfere with the discretion vested in the other departments or with the exercise of the political powers of those departments. He declared it to be a dangerous encroachment upon the prerogatives of the other departments of government if the judiciary be intrusted to exercise the power of interfering with the holding of an election in a State. In case that is so, a single citizen in each county (and in the case at bar he is not even a qualified voter) can enjoin an election throughout the entire State, and thus deprive thousands of their rights to vote, and if a court has power to do this free elections are at an end. If elections are improperly held, he said, there are appropriate means provided by law for questioning their results results and remedying wrongs without the exercise of this dangerous power by the courts. NOTES OF RECENT DECISIONS. FEDERAL OFFENSE-POSTAL LAWS-MAILING NON-MAILABLE MATTER-DECOY LETters. -In Grim v. United States, 15 S. C. Rep. 470, decided by the United States Supreme Court, which was a federal prosecution under Sec. 3893, U. S. Rev. Stat., as amended by Act Sept. 26, 1888, ch. 1039, for mailing nonmailable matter, one ground upon which the conviction below was attacked was because the letters of defendant were deposited in the mails at the instance of the government, and through the solicitation of one of its officers; that they were directed and mailed to fictitious persons; that no intent can be imputed to defendant to convey information to other than the persons named in the letters sent by him; and that as they were fictitious persons there could in law be no intent to give information to any one. The court, however, overruled the objection saying: There has been much discussion as to the relations of detectives to crime, and counsel for defendant relies upon the cases of U. S. v. Whittier, 5 Dill. 35, Fed. Cas. No. 16,688; U. S. v. Matthews, 36 Fed. Rep. 891; U. S. v. Adams, 59 Fed. Rep. 674: Saunders v. People, 38 Mich. 218,-in support of the contention that no conviction can be sustained under the facts in this case. It is unnecessary to review these cases, and it is enough to say that we do not think they warrant the contention of counsel. It does not appear that it was the purpose of the post-office inspector to induce or solicit the commission of a crime, but it was to ascertain whether the defendant was engaged in an unlawful business. The mere facts that the letters were written under an assumed name, and that he was a government official,-a detective, he may be called,do not of themselves constitute a defense to the crime actually committed. The official, suspecting that the defendant was engaged in a business offensive to good morals, sought information directly from him, and the defendant, responding thereto violated a law of the United States by using the mails to convey such information, and he cannot plead in defense that he would not have violated the law if inquiry had not been made of him by such government official. The authorities in support of this proposition are many and well considered. Among others reference may be made to the cases of Bates v. U. S., 10 Fed. Rep. 92, and the authorities collected in a note of Mr. Wharton, on page 97: U. S. v. Moore, 19 Fed. Rep. 39; U. S. v. Wight, 28 Fed. Rep. 106, in which the opinion was delivered by Mr. Justice Brown, then district judge, and concurred in by Mr. Justice Jackson, then circuit judge; U. S. 1. Dorsey, 40 Fed. Rep. 752; Com. v. Baker, 155 Mass. 237, 29 N. E. Rep. 512, in which the court held that one who goes to a house alleged to be kept for illegal gaming, and engages in such gaming himself, for the express purpose of appearing as a witness for the government against the proprietor, is not an accomplice, and the case is not subject to the rule that no conviction should be had on the uncorroborated testimony of an accomplice; People v. Noelke, 94 N. Y. 137, in which the same doctrine was laid down as to the purchaser of a lottery ticket, who purchased for the purpose of detecting and punishing the vendor; State v. Jansen, 22 Kan. 498, in which the court, citing several authorities, discusses at some length the question as to the extent to which participation by a detective affects the liability of a defendant for a crime committed by the two jointly. State v. Stickney, 53 Kan. 308, 36 Pac. Rep. 714. But it is unnecessary to multiply authorities. The law was actually violated by the defendant; he placed letters in the postoffice which conveyed information as to where obscene matter could be obtained, and he placed them there with a view of giving such information to the person who should actually receive those letters, no matter what his name; and the fact that the person who wrote under these assumed names and received his letters was a government detective in no manner detracts from his guilt. ANIMAL-INJURIES BY DOMESTIC ANIMALTENANTS IN COMMON. -In Morgan v. Hudnell, 40 N. E. Rep. 716, the Supreme Court of Ohio decides that the owner of a domestic animal is not in general liable for an injury committed by such animal while in a place where it rightfully may be, unless it is shown that the animal was vicious in the particular complained of, and that the owner had notice of such vicious propensity. But if the animal breaks into the close of another, and there damages the real or personal property of the one in possession, the owner of the trespassing animal is liable, without reference to whether or not such animal was vicious, and without reference to whether such propensity was known to the owner, and that one tenant in common of a pasture field may maintain an action against the owner of a domestic animal which breaks into the field and injures the live stock of such tenant rightfully grazing therein, and the other tenants are not necessary parties to such action. The following is from the opinion of the court: Undoubtedly, it is settled law that the owner of a domestic animal is not, in general, liable for an injury committed by such animal while in a place where it rightfully may be, unless it is shown that the animal was vicious in the particular complained of, and that the owner had notice of such vicious propensity. But we regard it as equally well settled that if the animal breaks into the close of another, and there damages the real or personal property of one in possession, the owner of the trespassing animal is liable, without reference to whether such animal was vicious, and without reference to whether such propensity was known to the owner, for the law holds a man answerable, not only for his own trespass, but for that of his domestic animal. The natural and well known propensity of horses, as well as other cattle, is to rove, and the owner is bound to confine them on his own land; so that if they escape, and do mischief on the land of another, under circumstances where the other is not at fault, the owner ought to be liable. Beckwith v. Shordike, 4 Borrows, 2092; Angus v. Radin, 5 N. J. Law, 815; Dolph v. Ferris, 7 Watts & S. 367; 3 Bl. Comm. 211. The question, then, in this case, is, whether or not Hudnell was in possession of the pasture field, in such sense as to authorize him to maintain the action. It is the duty of this court to give such construction to the record as will sustain the judgment of the court below, if it can be reasonably done. Looking to the bill of exceptions, we find that the plaintiff "had the right to keep the horse in question in Houser's pasture field, on pasture," and "paid a certain price per month for such right;" that is, Hudnell, the plaintiff, was keeping the horse there. Houser, the owner of the land, was not keeping the horse there. It does not appear that he was keeping any animal there. Other persons, who had like right with plaintiff, had their horses in the same field, on pasture. It does not appear that Houser reserved any right to use the field for his own stock, nor for the stock of others. Indeed, the circumstances are consistent with the idea that Houser had, for the time these contracts remainded in force, given up the possession of those who had thus hired the pasture. In this view, they were, then, the owners of the growing herbage. The rule that tenants so in possession may maintain trespass against even the owner of the fee seems to rest on reason and abundant authority. Crosby v. Wadsworth, 6 East, 602; Tompkinson v. Russell, 9 Price, 287; Clap v. Draper, 4 Mass. 266; 1 Add. Torts, 371, 372. It would follow from this that, had damage to the herbage been the ground of complaint, the tenants might have maintained a joint action for trespass. If the conclusion just stated is justified-and we think it is the only question remaining is as to the right of one of several tenants in possession, holding by separate contracts, to maintain an action in trespass, where the damage for which he seeks to recover is to his own individual property rightfully in the close, by virtue of his rental contract. That the damage is to personalty will not, according to the authorities, stand in the way of a recovery. True, such damage is treated by many authorities as an incident, and in the nature of aggravation. But this distinction seems to have arisen from a desire to preserve the common law form of action, and at the same time not deny the injured party a remedy. The old action for trespass quare clausum fregit was strictly an action for damages to the land following an unlawful entry, and hence could not be resorted to for the purpose of a recovery for damages to personalty only. But forms of action not being important in this State, since the adoption of the Code, we need not be embarrassed by any such distinction. The question in every case is not what is the proper form of action, but, has the party a right of action? Upon this phase of the in quiry we do not find authorities. But, upon princi ple, why should not one of several tenants in common have such an action? Had he been in exclusive pos session, no doubt would exist. Why should the mere fact that others are interested in the growing herbage bar a recovery? They are not concerned in the special damage suffered by plaintiff, and holding, not by virtue of a joint contract, but by separate several contracts, are not necessary or proper parties. It cannot prejudice the defendant that others having the same right of pasture do not join in the action, for they have no concern with it. If the claim were for damage to the herbage, the case would be different, inasmuch as it might be urged that the defendant's entire liability should be determined in one action, and hence all should be parties. In Virginia and Vermont it is held that even in that case one alone may maintain the action, though it appears that the trend of authority is the other way. Probably, the latter view would prevail in this State. And yet, if it were attempted to recover in one action for damages to the real estate suffered by all, and for damages to the personalty of one alone, a vexed question of misjoinder would arrive, because all the parties would not be interested in each ground of action. To hold, therefore, that one tenant could have no standing to recover for damages to his personalty, save by joining with him the other tenants, is practically to refuse him any relief whatever. And this would, in effect, be to say that the law will take cognizance of a claim for damage to real estate, though it may amount only to a few cents, and refuse a hearing to a claim for destruction of personal property, under like facts, which may reach hundreds of dollars. It would be to say further that a party suffering injury to his personalty by an animal trespassing upon premises of which he has sole possession may be made whole, but if it hap pens that the possession is shared by others he is without remedy. Such a result would cast discredit on the power of the law to work out justice. To deny the right of the injured party to maintain action for damage to his separate personalty upon any of the grounds referred to would, we think, be to interpose a technicality for the purpose of defeating justice. It is the duty of courts, as we understand it, to override mere technicalities, where they stand in the way of doing justice between man and man. Stated in brief, the case is this: The plaintiff's horse was in a close where the owner, having rightful enjoyment, had a right to keep him. He had a right in the field. The defendant's horse, by breaking the fence which his landlord was bound to maintain, became a trespasser, and, while thus unlawfully invading the close as a trespassing animal, inflicted the damage to plaintiff's property. For such wrong we think the law should, and does, afford a remedy. INSURANCE-WAIVER OF CONDITION-PREMIUM NOTE.-It is held by the Supreme Court of Nebraska in Phenix Ins. Co. v. Rollins, 63 N. W. Rep. 46, that a clause providing that an insurance policy shall be suspended during the time the premium note shall remain unpaid after maturity is for the benefit of the company, and may be waived by the insurer. In that case a fire insurance policy for the term of five years at a gross premium for the entire time, the insured giving his note for such premium, due in one year from date, contained a stipulation to the effect that the failure by the insured to pay the premium note, when due, suspended the policy during such default, but that a subsequent payment of the premium in full revived the policy for the remainder of the term. The defendant made default in the payment of such note, and in an action thereon it was held that the company was entitled to recover the full amount of the note. Norval, C. J., says in part. If we correctly understand the argument of counsel for defendant, It amounts to this: That by virtue of the foregoing provision contained in the policy and the stipulation in the note, the insurance terminated upon default being made in the payment of the premium note, and the insurance having ceased in favor of the plaintiff at the maturity of the note, the premium likewise ceased to accrue against the defendant. This is, doubtless, the view adopted by the trial court. If this is the proper construction to be placed upon the clauses quoted above, when read in the light of the facts in the case, the decision is right, otherwise the judgment must be reversed. By the terms of the contract the policy was voidable upon the defendant making default, but voidable merely at the option of the company. The condition declared the insurance suspended during default of payment of the premium note. The provision was inserted in the policy for the sole benefit of the insurer, and not the insured, and is valid and binding. This stipulation could be waived by the company. This was decided in Insurance Co. v. Bachelder, 32 Neb. 490, 49 N. W. Rep. 217, and the same doctrine is held by other courts. Zinck v. Insurance Co., 60 Iowa, 266, 14 N. W. Rep. 792; Mehurin v. Stone, 37 Ohio St. 58; Palmer v. Sawyer, 114 Mass. 13. It appears that this defendant has retained the policy, and never offered to surrender it, and that plaintiff has at all times since the maturity of the note endeavored to enforce the collection of the note, and brought this action for that purpose. As to what acts have been construed as a waiver of conditions in a policy similar to the one in this case, see Johnson v. Insurance Co., 79 Ky. 403; Insurance Co. v. Woods (Ind. App.) 37 N. E. Rep. 180; Insurance Co. v. Perkey (Tex. Civ. App.), 24 S. W. Rep. 1080; Brady v. Insurance Co. (Com. Pl. N. Y.) 29 N. Y. Supp. 44; Insurance Co. v. Scheidle, 18 Neb. 495, 25 N. W. Rep. 620; Insurance Co. Christiensen, 29 Neb. 572, 45 N. W. Rep. 924; Insurance Co. v. Dungan, 37 Neb. 470, 55 N. W. Rep. 1069. In the last case the stipulations in the premium note and policy were the same as in the case before us. After the maturity of the note, a payment was made thereon, and the note was left with an agent for collection. Before the note had been fully paid, the property covered by the policy was destroyed by fire. In an action to recover for the loss it was held (we quote from the syllabus) "that the policy was voidable only at the election of the insurance company, and that by receiving and retaining the part payment after the default, and retaining the note for collection, it waived the right to insist upon a forfeiture thereof.” Whether, had a loss occurred after the maturity of the note in question, and an action had been brought to recover upon the policy, the company could have interposed as a defense that the note had not been paid, it is unnecessary to now decide, as the determi nation of such question adversely to the company would not defeat its action upon the note. As elsewhere stated, the clause contained in the policy was intended for the protection of the company merely. To permit the defendant to insist that the contract of insurance terminated by his own failure to pay the note would allow the insured to take advantage of his own laches or wrong, which the law will not sanction. The defendant contracted to pay the plaintiff 40 for carring the risk on his property for the full period of five years, with the contingency, thoroughly understood at the time, that the insurance might be suspended by the failure of the insured to pay the premium when due. There is no stipulation releasing the defendant from the payment of any portion of the note in case he should fail to comply with the contract. The company has furnished and the defendant has receivd all the contract required. The insured could have continued the policy in force for the five years, had he chosen to do so, by paying the note according to its terms. The company acquired a present vested right in the premium as an entirety immediately upon the execution and delivery of the note and policy. The failure of the assured to pay the note did not render the policy absolutely void, but merely suspended it during the continuancy of the default. A voluntary or enforced payment of the premium would have the effect to revive the policy for the remainder of the original term of the risk. We are fully satisfied that plaintiff is not restricted to a recovery of such part of the premium as equaled the customary short rates for one year's insurance, but it was entitled to collect the full amount of the note. The construction we have placed upon the stipulations of the parties is sustained by the following authorities: Insurance Co. v. Klink, 65 Mo. 78; Robinson v. Insurance Co., 51 Ark. 441, 11 S. W. Rep. 686; Insurance Co. v. Henley, 60 Ind. 515; Insurance Co. v. Coleman (Dak.), 43 N. W. Rep. 693; Insurance Co. v. Boykin, 25 S. C. 323; Insurance Co. v. Hoffman, Id. 327; Insurance Co. v. Olson (Minn.), 44 N. W. Rep. 672. The defendant relies upon three cases to justify his position, namely: Yost v. Insurance Co., 39 Mich. 581; Insurance Co. v. Stoy, 41 Mich. 385, 1 N. W. Rep. 877; Matthews v. Insurance Co., 40 Ohio St. 135. These cases are not like the one under consideration. In each a note payable in annual installments was given for the premium, each installment being a premium for a distinct year's insurance. The policy stipulated that, if any installment was not paid at maturity, the policy should be null and void until payment was made. It was held that the insurance was not for a term of years, but as an annual insurance, renewable each year for a period not exceeding such term, the policy was void so long as there was any default in the payment of any installment, and that no recovery could be had for successive installments of the premium. In the case before us the defendant agreed to pay a gross sum as premium for the carring of the risk for the full period of five years, subject to the provisions of the policy. In the Ohio case two of the judges dissented; and the Michigan court, in Williams v. Insurance Co., 19 Mich. 451, and Caufield v. Insurance Co., 47 Mich. 447, 11 N. W. Rep. 264, in continuing an insurance policy purporting to be for five years, containing a stipulation that upon the non-payment at maturity of any installment note given for the premium the policy should be void until revived, and the whole amount of installments remaining unpaid should be considered earned, decided that the insured was liable upon the installment notes, thereby recognizing the law as we have stated it to be. The findings and judgment of the District Court are reversed, and the cause remanded. MECHANIC'S LIEN - COUNTERCLAIM.-The Appellate Court of Indiana in Reichart v. Krass, 40 N. E. Rep. 716, decided that in an action to foreclose a mechanic's lien, if defendant sets up a counterclaim growing out of the same transaction, the whole controversy is "drawn into equity," and defendant is not entitled to a trial by jury. The counterclaim was for damages, arising out of alleged inferior work and the use of unsuitable materials in the construction of the building for which the mechanic's lien was filed. On the facts the action is substantially analogous to the recent case of Deeves v. Metropolitan Realty Co., 141 N. Y. 587, noticed in the New York Law Journal June 11, 1895. The Indiana court disposed of the question somewhat dogmatically, probably having principally in mind the great practical inconvenience and possible oppression of allowing separate trials before different tribunals of the issue raised by the complaint and the counterclaim respectively. The opinion concluded as follows: The grievances complained of in the counterclaim grew out of the same contract and transactions which are the basis of the complaint. The defendant may, under such circumstances, elect whether he will use the injuries he has sustained as a defense by way of recoupment, or he may use it as a counterclaim or as an independent cause of action. Brower v. Nellis, 6 Ind. App. 325, 33 N. E. Rep. 672; Aultman v. Richardson (Ind. App.) 38 N. E. Rep. 532; Aultman v. Forgy (Ind. App.) 36 N. E. Rep. 939. If he use the matter in defense by way of recoupment, he can have no judgment over for any excess of damages. If he use it as a counterclaim, he may have judgment over for the excess found due him. But in either event the plaintiff's right to a recovery will be defeated. As the plaintiff's right to a recovery in his equitable action is liable to be defeated by the counterclaim, the whole controversy is drawn into equity, and is triable by the court without the aid of a jury. Towns v. Smith, 115 Ind. 480, 16 N. E. Rep. 811; Martin v. Martin, 118 Ind. 227, 20 N. E. Rep. 763. It is true that the appellant might have elected to use the breach of the contract set out in his counterclaim as an independent cause of action, and have had the issues thereon tried by a jury; but, as he voluntarily brought it into an equitable proceeding, he will be bound to submit to the rules that govern in such proceedings. |