ing the unanimous opinion of the court, replied: "Doubtless, a decree of a court having jurisdiction to make the decree cannot be impeached collaterally; but, under the act of Congress, the District Court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest (the owner). Had it done so, it would have transcended its jurisdiction. 9 Wall. 350.

So a departure from established modes of procedure will often render the judgment void; thus, the sentence of a person charged with felony, upon conviction by the court, without the intervention of a jury, would be invalid for any purpose. The decree of a court of equity upon oral allegations, without written pleadings, would be an idle act, of no force beyond that of an advisory proceeding of the chancellor. And the reason is that the courts are not authorized to exert their power in that way.

The doctrine stated by counsel is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend in the extent or character of its judgment the law which is applicable to it. The statement of the doctrine by Mr. Justice Swayne in the case of Cornell v. Williams, reported in the 20th of Wallace, is more accurate. "The jurisdiction," says the justice, "having attached in the case, every thing done within the power of that jurisdiction, when collaterally questioned, is held conclusive of the rights of the parties, unless impeached for fraud. 20 Wall. 250.

It was not within the power of the jurisdiction of the District Court to proceed with the case, so as to affect the rights of the owner after his appearance had been stricken out, and the benefit of the citation to him thus denied. For jurisdiction is the right to hear and determine; not to determine without hearing. And where, as in that case, no appearance was allowed, there could be no hearing or opportunity of being heard, and, therefore, could be no exercise of jurisdiction. By the act of the court, the respondent was excluded from its jurisdiction.

The judgment of the corporation court is affirmed.

GENERAL TERM ABSTRACT.

SUPERIOR COURT OF BUFFALO-GENERAL TERM, DECEMBER, 1876.

GUARANTY.

1. Construction of: parol evidence. Where the words of a guaranty will bear either construction, that the guaranty should expire when advances to the amount therein stated and limited had been given and paid, or that it should continue in force and be good for advances thereafter made to the extent of the amount limited, the words will be read in that sense in which the parties themselves intended they should be understood; and for this purpose evidence of extrinsic facts and circumstances, under which the instrument was given, is admissible. White's Bank of Buffalo v. Myles. Opinion by Smith, J.

2. The guaranty was in these words: "Please discount for A. B. to the extent of $4,000. He will give you customers' paper as collateral. You can also consider me responsible to the bank for the same. W. Myles." Plaintiff discounted paper to the amount of $4,000 and over, which the principal had paid, and this action was brought for paper thereafter discounted.

Held, that as the language of the guaranty will bear either construction, that the amount expressed is intended as the limit of the liability of the guarantor, or of the whole credit to be given to the principal, parol evidence is admissible to show in what sense the parties themselves intended that the words should be

understood. Ib.

NEGLIGENCE.

1. Liubility of the occupant of premises to persons who come there by invitation.-The owner or occupant of premises who, expressly or impliedly, invites another to enter thereon, owes a duty to such person to keep his premises in a safe condition, free from obstructions, pitfalls, or other dangerous conditions; and for breach of this duty, causing injury to such person, he is liable in damages. But this duty does not extend to that part of the premises in which such person is not, expressly or impliedly, invited or expected to enter. Lester v. Lautz. Opinion by Smith, J.

2. Defendants occupied four stores adjoining and opening into each other. The northerly store, No. 1, was occupied by workmen, and was used for packing goods and storing empty boxes. In this store was a hatchway for operating an elevator, which was open and unprotected when the elevator was in use, and was close to and directly opposite an opening, as large as a door-way, in the partition wall between store No. 1 and the southerly store No. 2. Plaintiff called at the office, which was in store No. 2 to purchase some empty barrels, and was directed to see Mr. B. about it, who was in the southerly store No. 4, where he was usually employed, as the plaintiff knew. Instead of going where B. was employed, he turned the other way and entered the opening into store No. 1, and fell into the hatchway, etc. Held, that he could not recover, that he was rightly nonsuited. Ib.

NEGOTIABLE PAPER.

1. Holder cannot be compelled by accommodation indorser to enforce mortgage against maker in first instance.-An indorser, without consideration and solely for the accommodation of the maker or drawer, and known to be such by the holder, who discounted the paper on the faith of a mortgage executed by the maker or drawer, cannot compel or require the holder to resort to his mortgage security in the first instance. First Nat. Bank of Buffalo v. Wood. Opinion by Smith, J.

2. So, where a person makes a note without consideration and solely for the accommodation of the indorser, and is known to be such by the holder, he cannot compel or require the holder, who discounted the note on the faith of a mortgage executed by the indorser, to resort to his mortgage security in the first instance. First Nat. Bank of Buffalo v. Alberger. Opinion by Smith, J.

STATUTORY CONSTRUCTION.

Construction of statute: municipal body may sue, notwithstanding act of 1875, chapter 49.-- Held that the act of 1875, chapter 49, giving to the people of the State a right of action to recover any money, funds, credits or property held or owned by any municipal corporation, etc., which have been without right obtained, received, converted or disposed of, does not take away the right of action existing in the municipal body, nor confer upon the people an exclusive right; that a right of action for the same thing may exist at the same time in two distinct corporations or individuals. City of Buffalo v. Lyon. Opinion by Smith, J.

WITNESS.

1. Competency of witness convicted of perjury: evidence of conviction.- Under a statute providing that every person who shall willfully and corruptly swear, etc., shall, upon conviction, be adjudged guilty of perjury, and shall not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him be reversed" (2 Rev. Stat. 681); Held, that a person who has been convicted by the verdict of the jury, but upon whom sentence has not been pronounced, is a competent witness against the person who suborned him. The People v. Blaufus. Opinion by Clinton, Ch. J.

2. The judgment is the only legal evidence of the party's guilt, for the purpose of rendering him incompetent to testify. Even the admission of the party himself will not suffice without a copy both of the judgment and the conviction. Greenl. Ev., § 375; People v. Whipple, 9 Cow. 707; People v. Herrick, 13 Johns. 82; Hilts v. Colven, 14 Johns. 182; Com. v. Green, 17 Mass. 537. Ib.

LIABILITY OF GOVERNMENT FOR LOSS OF

CHARTERED VESSEL.

the case of Shaw, appellant, v. The United States, just decided, the Supreme Court of the United States hold that where a steamer, lying at the time at the wharf at St. Louis, was taken into the service of the United States, by a quarter-master of the United States, for a trip to different points on the Mississippi river, the compensation for the service required being stated at the time to the captain, and no objection being made to the service or compensation, and the service was rendered, the possession, command and management of the steamer being retained by its owner, in such a case the United States were charterers of the steamer upon a contract of affreightment, and were not liable under such a contract to the owner for the value of the steamer, though she was destroyed by fire whilst returning from the trip without his fault. The case follows that of Reed v. United States, 11 Wall. 591. The court also say that not being liable to the claimant, the United States would, of course, not be liable to insurance companies subrogated to his rights. Macardier v. The Chesapeake Ins. Co., 8 Cranch, 39; The Schooner Volunteer, 1 Sumn. 551; The Brig Spartan, 1 Ware, 153; Donohue v. Kittel, 1 Cliff. 138.

JURISDICTION OF STATE COURTS OVER ACTIONS

RELATING TO VESSELS.-EFFECT OF BANKRUPTCY PROCEEDINGS ON PENDING ACTION AGAINST BANKRUPT.

the case of Norton, Assignee of Hein, and Hein, bankrupts, plaintiff in error, v. Switzer, decided by the Supreme Court of the United States at the present term, Switzer sued the Heins as owners of the steamboat Frolic in an action of assumpsit in a Louisiana State court. His petition alleged that the defendants were indebted to him for services rendered as master and superintendent in repairing the vessel. He also alleged that he was a privileged creditor, that the steamboat was about to leave the jurisdiction, and that he was apprehensive he should lose his claim if she should depart before it was satisfied. Wherefore he prayed for a writ of provisional seizure and for process to compel the appearance of the defendants.

Summonses were issued and served, and the defend ants appeared and filed a plea to the jurisdiction the court, in which they alleged that the suit is not proceeding in rem, but a proceeding against the person of the defendants, and that they reside outside of the jurisdiction of the court. They also filed an excep tion that the plaintiff cannot proceed by provisional seizure because the services for which he claims pay ment did not arise while the steamboat was navigating or trading within the State.

Pursuant to the order of the court, the steamboat was surrendered to the defendants, and they gave the usual bond for value. Defendants filed an answer de nying debt and pleading part payment, and other proceedings were had. Pending the litigation defendants became bankrupts and Norton was appointed and qualified as assignee. Upon a suggestion of that fact the court made an order that the assignee be made a party "in his capacity aforesaid," and process was issued and served upon him. Subsequently judgment was rendered against the assignee for the sum claimed "with costs and privilege on the steamboat," and he took an appeal to the State Supreme Court, setting up the same grounds taken by the original defendants, and also that the decree in bankruptcy divested the subordinate court of all authority to proceed in the case, and that the court had no jurisdiction to render judgment against him. The State Supreme Court affirmed the judgment of the lower court, and the assignee took error to this court. The decision of the State court was affirmed, the court holding that the objection raised to the jurisdiction of the State tribunal on account of the bankruptcy proceedings was not valid. In regard to the other objections, the court say that, while libels in rem to enforce a maritime lien are exclusively cognizable in the courts exercising admiralty jurisdiction, the difficulty in the way of the present plaintiff is that the closing words of the judg ment to which he refers are wholly inoperative and incapable of being enforced for any such purpose. Special proceedings of the kind are utterly unavailing, where the defendant is adjudged bankrupt pending the action, and the suit is allowed to proceed to judg ment under the twenty-first section of the bankrupt act, for the mere purpose of establishing the validity of the claim and the amount due to the creditor. Nor would it benefit the present plaintiff, in the support of his second assignment of error, even if it were conceded that the effect of the judgment is to secure to the plaintiff the alleged preference, for the reason that such a claim for services, rendered to a domestic vessel, does not, under the recent decision of this court, give rise to a maritime lien in favor of the person rendering the services. The Lottawanna, 21 Wall. 571. Seamen have a maritime lien for their wages wherever the services may be rendered, but that just rule was never extended to the master, except in cases where the lien is created by statute. Smith v. Plummer, 1 B. & Ald. 575; Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East. 426; Machlachlan on Ship. (2d ed.), 198; Maude & P. on Ship. (3d ed.), 91; The Orleans, 11 Pet. 184. Authority does not exist in the State courts to hear and determine a suit in rem, as in the admiralty courts to enforce a maritime lien. Doubt upon that subject cannot be entertained, but the recent decision of the court holds that such a lien does not arise in a contract for repairs and supplies to a vessel in her home port, and if not, then it follows that in respect to such contracts it is competent for the States, under

the prior decisions of the court, to create such liens as their legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement. The Belfast, 6 Wall. 645; The Moses Taylor, 4 id. 427; Hine v. Trevor, id. 569.

LIFE INSURANCE - CONDITION AGAINST SUICIDE, "SANE OR INSANE."

UNITED STATES SUPREME COURT- OCTOBER TERM, 1876.

BIGELOW, administratrix, etc., v. THE BERKSHIRE LIFE INSURANCE COMPANY.

A condition in a life insurance policy that the policy should be void if the insured should die by suicide, "sane or insane," held to avoid the policy in case insured died by his own hand, notwithstanding he was of unsound mind and wholly unconscious of the act.

IN

error to the Circuit Court of the United States for the Northern District of Illinois. Action upon a policy of life insurance. The opinion states the case.

Mr. Justice DAVIS delivered the opinion of the court.

This is an action on two policies issued by the defendant on the life of Henry W. Bigelow. Each contained a condition in avoidance, if the insured should die by suicide, sane or insane, and in such case the company agreed to pay to the party in interest the surrender value of the policy at the time of the death of Bigelow. The defendant plead that Bigelow died from the effects of a pistol-wound, inflicted upon his person by his own hand, and that he intended by this means to destroy his own life. To this the plaintiffs replied, that Bigelow, at the time when he inflicted the pistol-wound upon his person by his own hand, was of unsound mind and wholly unconscious of the act. The defendant filed a demurrer to this replication, which was sustained by the court below, and the plaintiffs bring the case here for review.

There has been a great diversity of judicial opinion upon the question, whether self-destruction by a man, in a fit of insanity, is within the condition of a life policy, where the words of exemption are that the insured shall commit suicide" or die by his own hand," which is only another form of expression for suicide. But since the decision in Life Insurance Company v. Terry, 15 Wall. 580, the question is no longer an open one in this court. In that case the words avoiding the policy were, shall die by his own hand," and we held that they referred to an act of criminal self-destruction and did not apply to an insane person who took his own life. But the insurers in this case have gone further, and sought to avoid altogether this class of risks. If they have succeeded in doing so, it is our duty to give effect to the contract, as neither the policy of the law nor sound morals forbid them to make it. If they are at liberty to stipulate against hazardous occupations, or unhealthy climate, or death by the hands of the law, or in consequence of injuries received when intoxicated, surely it is competent for them to stipulate against an intentional act of self-destruction, whether it be the voluntary act of a moral agent or not. It is not perceived why they cannot limit their risks in any manner they see fit, provided the assured is told in proper language of the extent of the limitation, and it is not against public policy. The language of this stipulation

is, shall die by suicide (sane or insane)." These words must receive a reasonable construction. If they be taken in their strictly literal sense, their meaning might admit of discussion, but it is obvious they were not so used. "Shall die by his own hand, sane or insane," is, doubtless, a more accurate mode of expression, but it does not more clearly declare the intention of the parties. Besides, the authorities uniformly treat the terms "suicide" and "dying by one's own hand," in policies of life insurance, as having the same meaning, and the popular understanding accords with this interpretation. Tindall, Chief Justice, in Borradale v. Hunter, 5 Maun. & Grang. 668, says: The expression, dying by his own hand,' is, in fact, no more than the translation into English of the word of Latin origin, suicide,'" and he construed the terms as synonymous. Life insurance companies, in adopting one phrase or the other, have used them without distinction as conveying the same idea. If the words, 'shall commit suicide," standing alone in a policy, import self-murder, so do the words, "shall die by his own hand." Without qualification, they mean

sane man.

in legal contemplation the same thing, and when accompanied by qualifying words the same construction must be adopted, whether the general words consist of either mode of expression. This being so, there is no difficulty of defining the sense in which it was intended the language of this condition should be received. Felonious suicide was not alone in the contemplation of the parties to it. If it had been, there was no necessity of adding any thing to the general words. These had been construed by many courts of high authority to exclude self-destruction by an inSuch a man could not commit felony, but he could take his own life with a set purpose to do so, conscious of the physical nature of the act, but unconscious of the criminality of it. As the line between sanity and insanity is often shadowy and difficult to define, this company thought proper to take the subject from the domain of controversy, and by stipulation exclude all liability by reason of the death of the party by his own act, whether he was at the time a responsible moral agent or not. Nothing can be clearer than that the words "sane or insane" were introduced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the insured was of sound mind or in a state of insanity. These words have a precise, definite, well-understood meaning. No one could be misled by them, nor could an expansion of this language more clearly express the intention of the parties. In the popular, as well as in the legal sense, suicide means, as we have seen, the death of a party by his own voluntary act, and this condition, based, as it is, on the construction of the language, informed the holder of the policy that if he purposely destroyed his own life the company would secure exemption from liability. It is unnecessary to discuss the various phases of insanity in order to see whether a possible state of circumstances might not arise which would defeat the condition. It will be time to decide this question when such a case is presented. For the purposes of this suit it is enough to say, that if the assured be conscious of the physical nature of the act he is committing, and intended by it to cause his death, the policy is avoided, although, at the time, he was incapable of judging between right and wrong, and did not understand the moral consequences of what he was doing. Any other construction would deny to the insurance

ATTACHMENT.

1. Discharge of: obligation of receiptor.- Where the obligation of a receiptor is merely to produce the property attached to satisfy any execution that may be issued, or any judgment that may be recovered, he is discharged by the commencement of proceedings in bankruptcy within four months after the issuing of the attachment. Kaiser v. Richardson, 14 Nat. Bank Reg. 391.

2. Release of bond given to dissolve. If the bankrupt, after the commencement of the proceedings in bankruptcy, gives a bond to dissolve an attachment issued more than four months before that time, and subsequently pleads a discharge, no special judgment can be entered to be enforced by action upon the bond. Hamilton v. Eryant, 14 Nat. Bank Reg. 479.

COMPOSITION.

Where a

1. Before adjudication: refusal to ratify. composition made before adjudication, the mere fact that the debtor retains the possession of his assets, is no ground for refusing to ratify it. The omission of the court in a voluntary case to adjudicate the debtor a bankrupt, does not defeat a composition made before such adjudication. A provision that the debtor may retain his assets does not defeat a composition, for it is a surplusage, and, on the application of a creditor, a warrant may be issued, notwithstanding the terms of the provision. Creditors who are fully secured need not be reckoned in computing the proportion who must join the composition. In re Van Auken and Crane, 14 Nat. Bank Reg. 425.

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2. Discharge of debtor: jurisdiction of District Court. If a resolution of composition has been duly ratified, it confines the secured creditor to his security, and discharges the debtor from personal liability for the secured debt. If a composition is entered into for cash payments secured by a mortgage on real estate, the District Court has no jurisdiction to restrain a creditor from levying an execution on personal property, although the name of such creditor was properly placed on the list of creditors. In re Lytle & Co., 14 Nat. Bank Reg. 457.

DISCHARGE.

Acts of debtor preventing: fraud: courts bound by statute: violation of statute conclusive to prevent discharge.-P., a bankrupt, whose assets are not sufficient to entitle him to his discharge, obtains the necessary consent thereto of more than one-fourth in number and one-third in value of his creditors, who proved their claims and to whom he is bound as principal debtor. Desiring to obtain also the consent of M., another creditor, "to strengthen his application for discharge," gives him a note for forty dollars, with security, and in consideration thereof, M. cigns the paper consenting to P.'s discharge. R. & Co., another creditor, oppose the discharge because of the above transaction with M. Held, (1) that this transaction was a violation of section 29 of the bankrupt act, and the discharge must be refused. (2) The right of a bankrupt to his discharge depends entirely upon the statute, and he can only demand it when he has complied with all of the prescribed conditions. If he has not complied with them all, his position is that of one who is unable to bring himself within the provisions of an act granting discharge from debts upon certain conditions. (3) The courts are as much bound by the provisions of the act as the bankrupt himself, and if it appear, in the regular course of proceedings, that an

applicant for a discharge has failed, in any particular, to perform his duty as a bankrupt, the application must be refused. (4) It is not the necessity of the act which makes it a fraud upon the law, but the statute itself. (5) Perfect equality among creditors is the fundamental principle upon which the bankrupt law proceeds; any thing which defeats that is a fraud upon the law. (6) The obligation incurred to one creditor, as the price of his assent (to a discharge), is as much a fraud upon those who had before signed the certificate of assent as upon those who had not. (7) The act of preference placed the bankrupt outside the statute, and made it the duty of the court to withhold the discharge. (8) The court is not to inquire whether the act complained of has been productive of harm, but whether it has been done. If done, one of the conditions precedent to the discharge has not been performed, and the case is not brought within the statute. Palmer v. Rogers, 14 Nat. Bank Reg. 437.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF WISCONSIN.*

NEGOTIABLE INSTRUMENT.

--

Failure of consideration. In an action on a promissory note, by the payee, the fact that the note was signed and delivered to plaintiff's agent with an agreement that the latter should hold it until a certain time, to be returned to the maker if he should not decide to effect a certain purchase from the plaintiff, and that in the meantime the note should not be considered as delivered to the plaintiff, with the further fact that the maker, at the specified time, notified the agent that he had decided not to effect such purchase, and demanded a return of the note. Held, to constitute a good defense. Hillsdale College v. Thomas, executrix.

RAILWAY.

1. Illegal charges: payment of charges on connecting roads. While chapter 273 of 1874 was in force, defendant, a railway company of this State, received plaintiffs' goods from another company of this State, paying as back charges thereon a greater sum than such other company could lawfully charge, and, on delivery of the goods to plaintiffs, collected from them the amount of such back charges, together with illegal charges for carriage upon its own road. Held, that plaintiffs can recover from defendant only three times the excess in its charges for carriage on its own road, and not for the excess in the charges of the other company. Ackerly v. C., M. & St. P. Railway Co., 36 Wis. 252, distinguished. The fact that shippers or consignees of goods, under the act of 1874, paid unlawful railway charges thereon with full knowledge of the facts, and without protest, will not prevent a recovery. Streeter v. C., M. & St. P. Railway Co.

2. Statute regulating speed of trains to be enforced strictly. The statute regulating the speed of railway trains in cities was passed in favorem vitæ, and its strict observance will be enforced by the courts. Haas, adm'r, v. C. &. N. W. Railway Co.