proper time and place; that defendant wrongfully refused to accept it; that L. thereupon gave notice that he rescinded the contract and demanded payment of the four premiums and interest, which defendant refused to pay. The answer averred that the policy contained a stipulation and condition that, unless all the statements made in the application for the same were true, the said policy should be void, and all payment of premiums made thereon should be forfeited to the defendant, and the application for the policy contained a statement that Michael Lowe, the person whose life was covered by the terms of said policy, was fifty-eight (58) years of age at the date of said policy, when in truth he was several years older than the age fixed by said statement." There was no reply. The only evidence offered at the trial was the policy. After verdict for defendant, L. moved for judgment on the pleadings notwithstanding the verdict. This the court refused and rendered judgment on the verdict. Held: The last "proviso" in Sec. 18, Chap. 2, of the Insurance Act passed April 27, 1872, as amended by the act of April 2, 1873, (70 O. L., 99), did not repeal Sec. 32 of said chapter and act. (69 O. L, 160). The words in the Act of 1873, conflicting with said Sec. 32, modified the terms on which the right to do business in Ohio was granted to companies of other States. While they deprived foreign companies of the right to set up an untrue statement as to age, it left Sec. 32 in full force as to Ohio companies. Judgment affirmed. 441. Continental Life Insurance Company of Hartford, Conn. v. Hamilton. Error to the District Court of Delaware County. BY THE COURT. On Aug. 11, 1866, defendant issued to C., a married woman, a policy tor $5,000 on the life of A., her husband. It was for her benefit, and payable to her, "her executors, administrators or assigns." In case of her death before that of A., the insurance was payable to their children for their use, or to their guardian if under age." Upon a surrender of the policy, after two annual premiums had been paid she would be entitled to a paid up policy for two twentieths of the sum originally insured. C. died intestate in October, 1866, leaving no children. A. survived her, and paid the annual premiums until 1875. when he offered to surrender the policy and demanded a paid up policy. This was refused, and he sued the company in his own name. One half of each premium had been paid in cash and for the other half promissory notes payable twelve months after date were given. Five of these were still owned and held by the company. For the payment of these notes the policy was pledged. The policy was of the kind entitled to dividend credits. Five dividends had been credited by the company on the last five premiums. A. claimed dividends for the first four years of the policy, but did not aver that there had been any omission by the company to declare any dividend to which the policy was entitled. The only evidence supporting his claim was a circular of the company's secretary, dated Dec. 15, 1873, and mailed to one E., who hadno connection with C. or A. It contained the following paragraph: "The reason of the above action is, that the experience of this company, and the experience of other companies, older, carefully managed, and successful, has demonstrated the impracticability of sustaining a yearly dividend of fifty per cent. upon life, and forty per cent. upon endowment policies, such as this company has sustained during the past six years, and which it is the last of all the companies to abandon. Aside from the impracticability of continuing the dividend at this rate, the system of large dividends deferred in payment for several years, coupled with a system of credits or notes in payment of premiums, has proved cumbersome and expensive, defeating thereby the very object intended, viz: the reduction of the cost of insurance, and, as a consequence, rendering the results unsatisfactory. The effect of continuing the dividend of the company upon the plan heretofore pursued would, in a few years, have been more apparent, and would have rendered a change of the most arbitrary nature immediately necessary, while the difficulty of making it would have been greatly augmented and the ability of the company to co-operate with the insured greatly impaired.” The charter was in evidence, and showed that the Directors were by by-laws and resolutions to regulate dividends. The by-laws and minutes were not offered or called for. The secretary testified that the dividends declared in favor of C.'s policy were made in the fifth and subsequent years and were all applied in payment of the dividends for said years. The court excluded his further statement that under the rules of the company no policy holder was entitled to a dividend until after four annual premiums had been paid. The decree allowed to A. a paid up policy and also a dividend for each of the first four years. Held, 1. As C. died before the second premium was paid, her administrator had no right to a paid up policy. 2. The company having for eight years after C.'s death, treated A. as the beneficiary of the policy, it is estopped to deny his right to sue in his own name as such beneficiary. 3. The circular was not evidence that any dividend payable on C.'s policy had been declared. 4. Under the issue the policy was entitled only to dividends declared by the directors as payable upon it. Judgment reversed and decree of Common Pleas modified. 466. The Pennsylvania Company v. Theodore B. Hine. Error to the District Court of Lucas county. BY THE COURT. H. at Toledo bought of defendant (acting for itself and other companies) a ticket good for a passage to Washington D. C. and return; but so limited as to expire with the 10th day of March, 1881. He left Washington in time to arrive in Toledo before midnight of said day, but, without his fault, his train did not arrive in Pittsburgh until after defendants train had started for Toledo. Defendants road extended from Pittsburgh westward. Without applying at the railway office in Pittsbugh for permission to use his ticket on a later train, he entered that train early on the morning of March 11, tendered to its conductor the last coupon of the ticket, and told him of the delay and its cause. Under the rules of the company it was the duty of the conductor to remove a passenger from the train who neither presented a ticket that by its terms gave a right to ride on that train, nor tendered the proper fare in money. Having so notified H., and demanded the proper fare in money, which H. refused to pay, the conductor, without unnecessary injury, removed him from the train. H. expended about six dollars in getting to Toledo, and arrived there about twelve hours after the train from which he had been so removed. He had, however, increased the delay by stopping in Cleveland for several hours on other business of his own. He sued the P. Company for breach of contract and wrongful removal from the train. In the charge the court said to the jury that incase of a finding for the plaintiff "it will be your duty to return what we will say are compensatory damages; take into account loss of time caused by the delay in proceeding to Toledo, and also under that rule the mortification to the feelings of the plaintiff. He is entitled to compensation for that-the inconvenience, annoyance and mortification to his feelings in being ejected from the car. It is for you to say what those damages shall be for that. You are to fix the amount. You are not to fix damages in the spirit of punishment; but to cover whatever damages the plaintiff has sustained in connection with the loss of time in proceedingupon his journey, and such as relates to his feelings, annoyance, mental suffering, mortification for being ejected from the car." This was duly excepted to. A verdictfor the plaintiff for $500 was rendered. A motion for a new trial was overruled and judgment entered on the verdict. Held: The removal of H. from the train was a proper exercise by the conductor of the right of defendant, and for that removal it was not liable in damages. If the defendant was liable for breach of contract because the train east of Pittsburgh was so delayed that H. could not enter the train upon which his ticket gave him a right to ride, that liability did not confer upon H. a right to ride upon the train from which he was removed. Shelton v. R. R. Co., 29 O. S. 214; Townsend v. R. R. Co., 56 N. Y. 295; Frederick v. R. R. Co. 37 Mich. 342; R. R. Co. v. Pierce, 47 Mich. 277. Judgments below reversed and cause remanded. 324. O'Brien v. Farr. Error to the District Court of Portage county. Judgment of the District Court reversed and that of the Common Pleas affirmed. No further report. 325. Day v. King. Error to the District Court of Portage county. Judgment affirmed. 447. Peters v. Peters. Error to the District Court of Lawrence county. Judgment affirmed. No report. 458. Sanderson v. Gilmore et al. Appeal. Reserved in the District Court of Mahoning county. Decree so construing the will as to give to Kate Gilmore in presenti one-half of the residue as it was at the death of the testator, and the other half when Laura Gilmore marries. Executor to hold Laura's half as directed by the will. No further report. Counsel are expected to prepare the decree. MOTION DOCKET. 51. Vance v. Baker. Motion to re-instate cause No. 461, General Docket. Motion overruled. 52. Pritz v. Drake et al. Motion to re-instate cause No. 460, General Docket. Motion overruled. 53. Wagner et al. v. Freeman. Motion to re-instate cause No. 425. General Docket. Motion overruled. 54. Flickinger et al. v. Smith et al. Motion to dismiss cause No. 691. General Docket. Motion overruled. DIGEST OF CASES. Attorney and Client-Authority to Compromise cannot be inferred from Relation of Attorney and Client.—An authority to compromise cannot be inferred from the bare relation of attorney and client. Persons dealing with an attorney at law respecting his client's business may justly infer he has all the powers implied by the relation, but not that he has the powers of a general agent to compromise and release debts or transfer and convey the goods or lands of his client. Isaacs v. Zugsmith's Ex'x. Sup. Ct., Pa. Pittsb. Leg. Jour., Sept. 24, 1884. Divorce-Liability of Husband for Counsel Fees-Death of Husband Pending Suit.-Where a wife institutes suit for a divorce, and the husband dies before a decree is rendered, she cannot maintain a suit against the husband's estate for the amount of the fees charged by her counsel in the suit. Where it appears that there was good ground for the suit for divorce the counsel may themselves maintain such suit. Handy v. Stockbridge; McCurley v. Stockbridge. Md. Ct. App. 13 Md. L. Rec. False Imprisonment—Arrest of Insane Person.-The insanity of a person justifies his arrest without legal process in case of reasonable necessity. Kelleher v. Putnam, S. C. N. H. Reporter's Advance Sheets. Good Will-Sale-Remedy for Breach.-Where a party, who sells his business and the good will thereof, contracts that he will not carry on the same business at the place of sale, or within a certain distance thereof, for three years, "under penalty of $100," and violates the agreement, the only remedy is an action to recover the amount named in the contract, and in such an action an injunction to restrain the continuance of such business in violation of the contract can not be granted. Stafford v. Shortreed. Sup. Ct. Ia., Dec., 1883. Judgment, Once Paid- When May be Kept Alive-Subsequent Creditors. -A judgment as between the parties may be kept alive, although once paid, for the purpose of securing another loan. As against subsequent lien creditors a mortgage or judginent once paid cannot be kept alive. Pierce v. Black. Sup Ct. Pa., Pittsb. Leg. Jour., Sept. 24, 1884. Liquor Law-Landlord and Tenant-Knowledge.-Under the statute making the premises where liquors are unlawfully sold, liable for all fines, costs and judgments imposed for sales in violation of law, it is essential that the owner of the premises be shown to have leased them for the purposes of selling liquor there, and that he knew of and consented to the sales which were unlawful, with a knowledge of the facts rendering them unlawful. Where the owner of premises, leased for a saloon, knows of the sale of liquor to a certain person, but does not know of his being intoxicated, or his habit of becoming so, the property cannot be made subject to a lien for the damages recovered against the saloon keeper who made the sale. Beck, J., dissents. Myers v. Kirt. Sup. Ct. Ia. 19 N. W. Rep. 846. Partnership-Confession of Judgment by Partner in Favor of Firm.One partner may become the debtor of a firm of which he is a member, and he may lawfully secure such debt in the same manner that he can secure any other creditor. His confession of judgment in favor of the firm for such debt, if made bona fide is good against subsequent lien creditors. Ziegler v. Hardwick, S. C. Pa. April 14, 1884; 41 Legal Intell., 338. Personal Injuries-Train Going at Greater Speed than Allowed by Ordinance.-At the time the deceased was killed by the train, it was going at a greater rate of speed than was allowed by the ordinance of the village, but under the circumstances as shown by the evidence, the deceased was guilty of gross negligence and his administrator cannot recover. That intoxication will not excuse a man from the exercise of due care. Wabash, St. Louis, & Pacific Ry. Co. v, Weisbech, Mo. App. Ct., Fourth District, Chic. Leg. News, May 10. Sale-False Representations-Concealing Indebtedness.—A. applied to the plaintiff to purchase goods on credit, and was requested to state "how he stood." In response he stated that he had $3,000 in his business, consisting of merchandise and book accounts, and had $300 in cash. On the strength of this statement he obtained goods on credit. He did not state that he owed $2,100 at the time. Held, not to be a mere passive non-disclosure; that having undertaken to answer the inquiry, a partial statement of the truth was calculated to mislead and convey false impresssion. Newell v. Randall, Minn. Sup. Ct., June, 1884. 18 Rep., 344. Tort-Assisting in Defalcation.—If a bank teller knowingly assist the cashier or any other officer in embezzling the funds of the bank he will be civilly responsible for the loss to which he thus contributes. Dovetl v. Hobart, N. J. Ct. Err. June, 1884. Will-Due Execution Ex Facie-Acknowledgement of Signature-Forgetfulness of Witness.-When a will is ex facie duly executed, and there is no suggestion of fraud, probate ought not to be refused merely because the persons whose names appear as attesting witnesses cannot, when examined, recollect either baving seen the testator sign the document, or that his signature was there before they signed, and did not know the nature of the document they were signing. Wright v. Sanderson, Eng. Ct. App., 51 L. T. N. S,, 769. |