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international maritime rights, inferior to that of no the Supreme Court. The truth is, that the feeling of one of his contemporaries at home or abroad.
the country was deep and strong against England, and I had an opportunity to answer Judge Nelson's in the judges, as individual citizens, were no exception to quiry as to the result of the case, by announcing to this feeling. Besides, the court was not then familiar him that his opinion had been sustained by awards to with the law of blockade. As evidence of the latter, the claimants of the Circassian for $225,264.
the Chief Justice had put the decision of the case in It is due to Judge Nelson to add, that this was the his opinion mainly upon the proclamation of the presionly case in which the decision of the Commission was dent, fixing the time when the blockade should cease in direct contradiction to a judgment of the Supreme at New Orleans. But, after hearing my dissenting Court.
opinion, he asked permission to modify it, as it now W. B. LAWRENCE.
appears in the report, which was readily granted. OCHRE POINT, NEWPORT, R. I., 16th December, 1873.
As to the feeling of hostility to England at the time,
Judge Black told me that, after my dissenting opinion OCHRE POINT, NEWPORT, R. I., I
was read, one of the most eminent members of the June 16th, 1873.
bar said to him, “that the delivery of it was the greatDEAR JUDGE NELSON - I have had occasion recently
est mistake of my life." to examine the case of the “Circassian” (2 Wallace,
Now that the passions and prejudices of the hour 156). As it was not decided till 1864, and consequently
| have passed away, there are not, or cannot be, two difnot till after the publication of the second edition of
ferent opinions in that case. Lawrence's Wheaton, which appeared in 1863, there is no
Have the Mixed Commission passed upon the case ? notice of it in my book, and — what is pretty strong evi- | I should be pleased to be advised of the result. dence that Dana took all his authorities from me - it is
Very truly, not alluded to in the spurious one of 1866, published
Your ob'd't servant, more than a year after the second of Wallace.
S. NELSON. It is, however, referred to by Tudor, in the edition Hon. W. B. LAWRENCE. of “Leading Cases of Mercantile and Maritime Law," 1868, p. 837. I inclose a copy of so much of his note, as relates to the cessation of a blockade, when the port
COURT OF APPEALS ABSTRACT. falls into the possession of the blockading power, and
ARREST AND BAIL. which shows how the respective opinions of the judges,
1. Escape: execution against body: power of Supreme who decided that case, are regarded abroad.
Court to set aside. - This action was brought against I cannot give any other plausible solution to the
defendant, as sheriff of Montgomery county, for an opinion of the Chief Justice than that he decided the
alleged escape on June 4, 1866. Plaintiff, in an action case, not by the law of belligerent blockade, but by the
for breach of promise to marry, obtained a judgment act of 13th July, 1861, authorizing, among other things,
against W.; April 12, 1869, plaintiff had said W. arrested the closing of the ports by executive authority, which
upon an execution against the person, issued upon said he had drawn and under which he had acted whilst in
judgment, and committed to jail. He gave bail for the the treasury. Indeed, I notice that, when the point
liberty of the yard. April 20, 1869, upon application was before the court, in the case of the “Gray Jacket"
of W., without notice to plaintiff, an order was made (5th of Wallace), as to the application of that act to the
at special term setting aside the execution against the remission of forfeiture of a vessel on the high seas,
person of W., and discharging him from custody. Upon bound to a foreign port, the counsel referred, for pre
the presentation of the order to defendant he released cedents, to remissions made in similar cases by Secre
W. Held, that the order, being valid upon its face, is tary Chase.
a justification to the sheriff for the release. (BullyOf course, I had the highest regard for the late Chief
more v. Cooper, 46 N. Y. 236, distinguished.) Pinckney Justice, and in dicussing his views I shall refer to them with respect, but it is impossible for me to recognize
v. Hegeman, Sheriff, etc. Opinion by Folger, J.
2. Also, held, that the Supreme Court has jurisdiction his law in this case, especially when I have before me
and full control over his own process, and may set the unanswerable argument by which it was contro
aside an execution against the person issued upon & verted. It has been to me inexplicable that there
judgment therein, after an imprisonment and an arrest should have been no other dissentient than yourself,
of the judgment debtor under and by virtue of the exthough that with jurists will little affect the intrinsic
ecution. Although the execution is completely exeweight of your opinion.
cuted by such arrest and imprisonment, yet it is not I trust, my dear judge, that you will not deem my inquiries intrusive. For the reputation of the court I
annulled. The writ is still the authority for the detenshould regret that there was but one judge who held
tion of the prisoner, and an order setting it aside takes that a blockade ceased when the blockaded port came
away that authority and obligates his release. Ib. into the possession of the blockading power.
National banks. — Plaintiff is a national bank in the
city of Elmira; it has a capital stock of $100,000, inW. B. LAWRENCE.
vested in U. S. government bonds. In 1868 the asses
sors of Elmira assessed plaintiff $5,000 on real estate COOPERSTOWN, August 4th, 1873. and $95,000 on personal property; the latter being the DEAR SIR--I have read your argument before the capital stock. The assessors' affidavit attached to the Mixed Commission, in the case of the Circassian, with roll was sworn to before the deputy county clerk of very 'great interest, and barring the compliments to Chemung. Upon such assessment a tax was imposed me, I regard it as unanswerable.
upon plaintiff of $2,080; a levy was made upon a quanYou refer to the allegation on the other side, that tity of bank bills belonging to plaintiff; they were sold, there was but one dissent in the decision of the case in I and the amount of the tax paid over to the city treas.
urer, and the balance to the county treasurer. Plain- | preservation and protection as well as the erection tiff then brought this action for the unlawful taking thereof. In re Application of Fowler et al. Opinion and conversion of the property levied upon. Held, that by Folger, J. the assessment upon the capital stock and the tax 2. As the exercise of the right of eminent domain against plaintiff, in violation of the provisions of the may be delegated by the legislature to municipalities, act "authorizing the taxation of stockholders of to boards of officers and to public agents, the necessity banks," eto. (8 1, chap. 761, Laws of 1866), which pro of an appropriation of lands by them cannot be inhibits the assessment of a tax upon such capital stock quired into by the courts. If the lands are to be put were void, and an action on behalf of the bank would to a public use, the legislature, or the instrumentality lie against defendant to recover the amount collected it employs, is the sole judge of the necessity, unless the by it upon such assessment. The remedy by certiorari enactment provides otherwise. Ib. is not adequate in such case. That is appropriate to
CONVEYANCE. review erroneous assessments, not where property has
Exception of highway from grant. - This action was been taken in violation of law under an illegal assess
for an injunction restraining defendant from digging ment.
upon two strips of land formerly a highway extending The assessor's oath to the affidavit attached to their
through defendant's lands, who claimed title through assessment roll must be taken before a justice of the
a deed from F. R. Tillou given in 1836, which after a peace ($ 8, chap. 176, Laws of 1851); the deputy county clerk has no authority to administer the same. Church,
description of the premises contained the following Ch. J.
clause, “but saving and excepting all and so much and Assessors are subordinate officers and must act with
guch part and parts thereof as has or have been lawfully in the authority conferred upon them. When in a
taken for a public road or roads." At the time of the given case they have no power to act at all, either as to
conveyance there were two highways running through
the land, which were used until 1840, when they were persons or property, their acts are void, and where their right to act depends upon the existence of some fact,
abandoned. The lands covered by these roads were an assessment founded upon an erroneous determina
conveyed by Tillou to plaintiff, and are the strips of tion by them as to the existence of such fact is illegal.
land in question. They cannot acquire jurisdiction by determining that
Held, that the exception in the deed was of the land they have it. Assessors have no power to determine
covered by the highways, not simply of the public what property is taxable; that is the province of the
easement therein, that the fee of the lands so covered legislature, and they are as liable for an erroneous de
remained in the grantor and passed by the conveyance
to plaintiff. Munn v. Worrall. Opinion by Rapallo, J. cision on their part, as to what is taxable, as for one as to who is a taxable inhabitant and an assessment founded
EVIDENCE. thereon is void. A decision of assessors in these cases This action was brought upon a joint promissory note may be attacked collaterally. National Bank of Che for $1,000 made by L. G. M. and his co-defendant, G. mung v. City of Elmira. Opinion by Church, Ch. J. L. M. The defense was substantially that the note had
in fact been paid from the joint funds of the makers, BROOKLYN - EMINENT DOMAIN.
that plaintiff was not a bona fide holder, but that the 1. The board of water and sewerage commissioners of note was nominally assigned to him under a pretended the city of Brooklyn, in carrying out their plau of sew- arrangement between him and G. L. M. which was, in erage and drainage, constructed a sewer in an unopened fact, a sham and a fraud upon defendant. The plaintiff's portion of Dean street, but through or upon which the evidence tended to show that G. L. M. had in the hands municipal corporation had not yet acquired a right of of an agent, one N., of Syracuse, the sum of $1,055, way. After such construction an application was made the proceeds of the sale of certain real estate in that at the special term of the Supreme Court, in conformity | city, the title to which, prior to sale, was in said G. L. with the provisions of section 8, chapter 521, Laws of M., who transferred the same to plaintiff, his son, to 1857, to lawfully open Dean street at the points under pay a debt he owed him of about $400, and the balance consideration. The application was opposed, princi. as a loan, and that N. with these funds, by plaintiff's pally upon the ground that, as the sewer had already direction, purchased the note in suit. Defendant been built, there was no necessity for the applica proved that he and G. L. M. had been partners and had tion, and the authority of the board was spent. Held, been operating in real estate, and by articles of agreethat the power of the commissioners was not spent; | ment between them it was agreed that the real estate that the authority to apply was based solely upon the and the interest of the parties therein, whether standfinding by the commissioners of the necessity of the ing in the name of the one or the other, should be for construction of the sewer, and that there was nothing their joint benefit. Evidence was given as to their in the act requiring the opening of the street before joint interest in the Syracuse property. Defendant building the sewer; that, for the purpose of maintaining offered to show that the accounts of the receipts and and preserving the sewer, it was as necessary that the disbursements in respect to that property were entered municipality should have the lawful use of the street in the partnership books as partnership accounts, also as for the purpose of building it, and that therefore that the property was in fact joint property. Plaintiff the application was properly granted. The Supreme objected to this evidence, and it was excluded. Court cannot, upon an application under section 8, Held error; that the evidence was proper as tending chapter 521, Laws of 1857, inquire into or pass upon the to show that the note was purchased with joint funds, question of the necessity of opening the street, further that no question of a trust was involved, and the prothan may be incidentally involved in the determina vision of the statute of uses and trusts abolishing retion of the question whether it is for a public use. The | sulting trusts, arising from the payment of the purchase phrases “to construct” and “be constructed,” as | money of lands by one, the title being taken by another, used in said section, are not confined to the mere act did not apply, that that provision could not defeat an of building the sewers; they include the maintenance, Toxpress covenant, or be made the instrument of fraud, also that the evidence was competent upon the ques | conveyed, the remainder shall be first applied to distion as to the bona fides of the transaction between | charge the incumbrance, defendant, as purchaser upon plaintiff and G. W. L. Marvin v. Marvin, Impl'd, etc. the foreclosure of the W. mortgage, was entitled to Opinion by Allen, J.
have Mrs. E.'s equity of redemtion in the H street JURISDICTION.
property first applied to the satisfaction of the judgof State court at suit of assignee in bankruptcy. This
ment, and was entitled to sell the same under said
judgment, and out of the avails of the sale plaintiff action was brought in the Supreme Court of this State
was first entitled to what was due on the C. mortgage, by plaintiff as assignee in bankruptcy of C. to recover money and property alleged to have been transferred to
and then defendant was entitled to the payment of
the judgment, and the surplus, if any, belonged to and converted by defendants with the view of preventing its coming to the assignee. Defendants insisted that
plaintiff. Reynolds, adm'r, etc. v. Park. Opinion by
Grover, J. the Supreme Court had no jurisdiction, and hence the complaint should be dismissed. Held, that the Supreme Court has, under the constitution and laws of this
UNITED STATES SUPREME COURT. State, jurisdiction of all cases in law and equity, and there being nothing in the bankruptcy acts limiting
ABSTRACTS FROM 16 WALLACE. such jurisdiction, plaintiff, as assignee of C., had a right
ACTION. to bring an action, either legal or equitable, in that
Where an incorporated company undertook to work court, to recover the property of the bankrupt. The
in the streets of a city, agreeing that it would "proState courts have concurrent jurisdiction with the
tect all persons against damages by reason of excavaUnited States courts in such action. Cook v. Whipple
tions made by them in doing it, and to be responsible et al. Opinion by Grover, J.
for all damages which may occur by reason of the neglect MORTGAGE FORECLOSURE.
of their employés on the premises; held, on the comThis action was brought to restrain defendant from pany's having let the work out to a subcontractor, selling certain real estate situated in Rochester, N.Y., through the negligence of whose servants injury accrued belonging to plaintiff. The wife of E. had title to two to a person passing over the street, that an action lay pieces of real estate, one known as the H street, and against the company for damages. Water Company v. the other as the S street property. She gave to C. a Ware, 566. mortgage upon the former. An action in the nature
ADMINISTRATOR DE BONIS NON. of a creditor's bill was commenced by K. against E. 1. Cannot sue the former administrator or his reproand his wife upon a judgment against E., alleging that sentatives for a devastavit, or for delinquencies in office; this property had been conveyed to Mrs. E. in fraud nor can he maintain an action on the former adminisof the creditors of her husband. C. was not made a trator's bond for such cause. The former administraparty. The judgment in this action declared the deeds tor, or his representatives, are liable directly to creditto Mrs. E. to be fraudulent, and void as to creditors, ors and next of kin. The administrator de bonis non and the property was adjudged to belong to E., and to has to do only with the goods of the intestate unadbe subject to K.'s judgment, and was ordered to be ministered. If any such remain in the hands of the sold to satisfy the same. Mrs. E. subsequently exe discharged administrator or his representatives, in cuted a mortgage on the S street property to W. which specie, he may sue for them either directly or on the was foreclosed and the premises bid off and conveyed bond. Beall v. New Mexico, 535. to defendant. K. was not made a party to the fore- 2. Regularly, a decree of the Probate Court against closure. C. afterward foreclosed his mortgage and the administrator for an amount due, and an order for did not make K. a party. Upon the sale plaintiff's | leave to prosecute his bond, are prerequisites to the intestate purchased the premises. Defendant there. | maintenance of a suit thereon. Ib. upon purchased and took an assignment of K.'s judg
ADMINISTRATOR'S SALE. ment, and was proceeding to enforce it by a sale of the H street property, when plaintiff brought this
A purchaser at judicial sale by an administrator action to restrain him. Held, 1st, that the lien of C.'s
does not depend upon a return by the administrator mortgage was paramount to K.'s judgment, and that
making the sale, of what he has done. If the prelimthe equity of redemption of Mrs. E. in the H street
inary proceedings are correct, and he has the order of property only became subject to the lien of the judg
sale and the deed, this is sufficient for him. McNitt v. ment; that by omitting to make K. a party to the
ADMIRALTY. foreclosure it was void as to such lien, and the equity of redemption still remained subject thereto; and that
A statute of a State giving to the next of kin of a plaintiff by his purchase became the owner of the fee,
person crossing upon one of its public highways with subject to the lien of the judgment upon the equity of
reasonable care, and killed by a common carrier by redemption. 2d. That the S street property and such
means of steamboats, an action on the case for damequity of redemption in the H street property, were
ages for the injury caused by the death of such person,
does not interfere with the admiralty jurisdiction of subject to an equal liability upon K.'s judgment, that
the District Courts of the United States, as conferred the mortgage given to W, alienated pro tanto the in
by the Constitution and the Judiciary Act of Septemterest of Mrs. E. in the former, and created an equity in his favor to have the judgment satisfied out of her
ber 24, 1789; and this is so, even though no such remedy,
enforceable through the admiralty, existed when the remaining interest in both parcels, that the foreclosure of said mortgage extinguished and was in effect an
said act was passed, or has existed since. Steamboat alienation of all her title to the premises, leaving her
Company v. Chase, 522. still the owner of the equity of redemption in the H
BAIL. street property. 3d. That under the rule that where a 1. The act of the law" which will discharge bail portion of lands subject to an inoumbrance have been from an obligaton to surrender their prisoner must be
one which renders the performance impossible, and | 10. The District Courts sitting in bankruptcy have must be a law operative in the State where the obliga- no jurisdiction to proceed by rule to take goods seized, tion was assumed, and obligatory in its effect upon her before any act of bankruptoy by the lessees, for rent authorities. Taylor v. Taintor, 367.
due by them in Louisiana, under “a writ of provisional 2. The fact that there has been placed in the hands seizure" - and then in the hands of the sheriff, and of the bail, by some one, not the person arrested nor held by him as a pledge for the payment of rent due any one in his behalf, nor so far as the bail knew, with out of his hands, and to deliver them to the assignee in his knowledge, a sum of money equivalent to that for bankruptcy to be disposed of under the orders of the which the bail and himself were bound, has no effect, bankrupt court; neither the sheriff nor the lessor havin a suit against the bail, on the rights of the parties. Ib. ing been parties to the proceedings in bankruptcy nor
served with process to make them such. Marshall v. BANK DEPOSIT – BANKRUPT ACT.
11. Where, under the 41st section of the Bankrupt 1. A creditor has reasonable cause to believe his Act of 1867, a trial by jury is hąd in the District Court debtor “insolvent" in the sense of the, when such a | in a case of application for involuntary bankruptcy, state of facts is brought to his notice respecting the and exceptions are taken in the ordinary and proper affairs and pecuniary condition of his debtor, as would way, to the rulings of the court on the subject of evilead a prudent business man to the conclusion that he, dence and to its charge to the jury, a writ of error lies the debtor, is unable to meet his obligations as they from the Circuit Court when the debt or damages mature in the ordinary course of business. Buchanan claimed amount to more than $500; and if that court v. Smith, 277.
dismiss or declines to hear the matter, a mandamus 2. A debtor “suffers” or “procures" his property to will lie to compel it to proceed to final judgment. Inbe seized on execution, when knowing himself to be surance Company v. Comstock, 258. insolvent, an admitted creditor who has brought suit 12. Where the goods of a tenant seized by a landlord against him -- and who he knows will, unless he applies for rent, before any act of bankruptcy, have been for the benefit of the, secure a preference over all other taken out of his hands and given to the assignee in creditors - proceeds in the effort to get a judgment bankruptcy, by an order of the District Court acting until one has been actually got by the perseverance of summarily and without jurisdiction, and sold by such him the creditor and the default of him the debtor. Ib. assignee, the Circuit Court, having got possession of
3. Such effort by the creditor to get a judgment, and the case by bill filed by the lessor, to be regarded as such omission by the debtor to "invoke the protecting one in an original proceeding, will proceed and decide shield of the," in favor of all his creditors, is a fraud the whole controversy. Marshall v. Knox, 551. on the, and invalidates any judgments obtained. Ib. 13. And where the seizure for rent has been made
4. The fact that the debtor, just before the judgments under a statute like that prevailing in Louisiana, and were recovered, may have made a general assignment where the landlord's lien is a perfected one, in the which he meant for the benefit of all his creditors nature of a pledge or execution, it will give the lessor equally, does not change the case. Such assignment is the full value of the goods sold clear of all expenses, a nullity. Ib.
whether the assignee obtained that value or not (lim5. The transfer by a debtor who is insolvent, of his ited, of course, by the amount of rent which he is property, or a considerable portion of it, to one creditor entitled to have paid to him), and also to all the taxaas a security for a pre-existing debt, without making ble costs to which he has been put by the litigation. any provision for an equal distribution of its proceeds Damages may be more appropriately claimed at law. to all his creditors, operates as a preference, and must Ib. be taken as prima facie evidence that a preference was
BOND. intended, unless the transferee can show that the
A bond regular on its face cannot be avoided even by debtor was at the time ignorant of his insolvency, and
sureties (the obligee not having had knowledge thereof) that his affairs were such that he could reasonably
by the fact that they signed it on a condition that expect to pay all his debts. Wager et al. v. Hall, 584.
other persons were to execute it who did not execute 6. Such a transfer, if made within four months
it. Dair v. United States, 1. before the filing by the party of a petition in bankruptcy, is void. Ib.
BONUS. 7. A sale by a retail country merchant then insolvent A bonus is not a gift or gratuity, but a sum paid for of his entire stock, suddenly, is a sale “not made in services upon a consideration in addition to or in the usual and ordinary course” of his business; and,
excess of that which would ordinarily be given. Kentherefore, prima facie evidence of fraud, within the nicott v. The Supervisors, 453. 35th section of the bankrupt law. Walbrun v. Babbitt, 577.
CAPTURED AND ABANDONED PROPERTY ACT. 8. This presumption of fraud can be overcome only A claim under, for a vessel taken and sold by the by proof on the part of the buyer that he pursued in Treasury Department, held to have been rightly disgood faith all reasonable means to find out the pecuni. missed, the property which was the subject of it ary condition of the vendor. Ib.
having been used in waging or carrying on war against 9. One purchasing in such a case from a vendee who the United States; and this so held although the govhe knows has used no such means, but on the contrary ernment, in ignorance of the fact just stated, had has bought under other suspicious circumstances, takes hired the vessel in a regular way, and used her for a with full knowledge of the infirmity of the title. And | whole year as i she were belonging to a loyal citizen as against either or both purchasers the assignee in who had never misused her; after which under some bankruptcy may set the sale aside if made within six | general order it disregarded the owner's claims, and months before a decree in bankruptcy, even though a turned her over for sale by the Treasury Department. fair money consideration have been paid by each. Ib. I Slaroson v. United States, 310.
A court of equity will not relieve a party from the An amendment to a charter treated as part of a effect of omitting to perform an act, although the charter, in a subsequent statute giving certain privi
omission was caused by subsequent illegality or im posleges "granted by the charter.” Humphrey v. Pegues,
sibility arising from the act of God, where such act 244.
was merely optional, and the other party had no right
to enforce its performance. COLLISION.
The agency of one representing an insurance comThough a sailing vessel having the wind is prima
| pany, authorized to receive premiums and renew polifacie bound to adopt such a course as will prevent sol
cies, becomes unlawful when the insured and insurer lision with other sailing vessels not having it, it is still
become publio enemies. the duty of these last in an emergency to make their
Humes & Posten, for plaintiff; Randolph, Hammond courses so as not to render it difficult for the vessel
& Jordan, for defendants. having the wind to do her duty by rendering it doubtful what movement she should make. The Mary Eveline, 348.
EVIDENCES OF LIFE IN THE NEWLY-DELIVCOMMERCIAL BROKERS.
ERED CHILD. Who act wholly as buyers, not liable under the In
BY WM. B. ATKINSON, M, D., ternal Revenue Act of July 13, 1866, to the tax of onetwentieth of one per cent on the amount of “sales"
PHYSICIAN TO THE DEPARTMENT OF OBSTETRICS AND made by commercial brokers. The Collector v. Doswell
DISEASES OF WOMEN AND CHILDREN, HOWARD HOS& Co., 156.
PITAL, PHILADELPHIA, ETC., ETC.
My opinion having recently been asked as to the fact WAR AND LIFE INSURANCE.
of a child having life at delivery, in a case involving a The controverted question of the effect of the recent
large estate, I have been led to investigate the subject, civil war on policies of Life Insurance has been recently
and collate the views and opinions of authorities on passed upon by Emmons, J., of the United States Cir
this delicate and important point. cuit Court for the Western District of Tennessee. The
First. What are the indications of life? following is an abstract of the decision :
Before delivery the fætus possesses circulation with
out respiration. While this continues, and while the CIRCUIT COURT OF THE UNITED STATES FOR THE
heart maintains its action, the foetus lives and carries WESTERN DISTRICT OF TENNESSEE.
on all the functions of embryonic life. The cessation W. E. Tait et al., Heirs of Dr. Samuel Bond, deceased,
of the heart's action, and consequently of the circulav. New York Life Insurance Co. Emmons, J. tion of the blood, marks the death of the child, and A policy of insurance which indemnifies a public decomposition soon commences. enemy against loss in time of war is unlawful; and So long as pulsation continues in the cord, the fætus, where entered into before hostilities, is abrogated though inaccessible to the touch, is regarded as poswhen they occur. The relations it establishes are ille sessing life. This belief is so well established that all gal between belligerents.
obstetricians hesitate in the performance of certain When a life policy provides that it shall be void upon operations which may be rendered necessary by malthe non-payment of premiums within the time pre formation of the pelvis, or malposition of the child, scribed, such payment is a condition precedent; time is when such operation must necessarily lead to the deof the essence of contract, and there can be no recov struction of life in the child. Indeed, the Roman ery if punctual payment is omitted.
Catholic Church provides for the baptism of the undeWhere the performance of a condition precedent be livered child under such circumstances, and does not comes unlawful, or by the act of God, impossible, this hesitate to pronounce such an infant as saved if the will not authorize a recovery upon the contract with ceremony is performed while such pulsations are out performance. Such case distinguished from those | known to exist, however feebly they may occur. in which subsequent impossibility and illegality are Now, if the fætus is living as long as pulsation exrelied upon as a defense.
ists, may we not equally claim it as alive if such pulA contract of insurance, the continuance of which sation exists after delivery, even though respiration depends upon the election and acts of the insured, is has not been established, or even attempted. not like a debt, the obligation of which is absolute, Upon this point obstetrical authors maintain a reand which is suspended only by war.
markable silence. In works on medical jurisprudence The relations between the members of a corporation we find more light thrown upon this intricate and imfor mutual insurance present all the evils and are dis portant matter. Beck says: “There are two ways golved by war for the same reasons as those between in which a child may be born. When born, the cord ordinary copartners.
may be pulsating, showing that it is alive, and yet it The reasons for the dissolution of executory con- may not respire. In this state it may continue for a tracts by war are not alone that such contracts involve sufficient length of time to die from natural causes, or inter-communion across the hostile lines, or that they in consequence of criminal interference, before respi. relate to property liable to capture; but more especially ration has commenced.”-Beck's Med. Juris., eleventh because their execution increases the resources of the ed., 1860, vol. I, p. 494. enemy.
Taylor tells us: “It was formerly supposed that if A court of equity has no authority to decree the the lungs contained no air the child could not have specific performance of an agreement in favor of a respired, and it must have been born dead. But neither party who has failed to perform a condition which is of these views is correct; children have been known of the essence of the contract, although prevented by to respire faintly, and continue in existenoe many its becoming subsequently illegal or impossible by act hours without visibly distending the cells of the lungs of God.
with air; the absence of air from the lungs, therefore,