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FRAUD- Continued.

Action to have a bill of sale absolute in form adjudged to have been given
as security only what proof is required to sustain it fraud or mistake need
not be established.

Fire insurance policy misstatement of the loss, not fraudulent, does
not avoid the policy.
See CHEEVER O. SCOTTISH UNION & N. Ins. Co. (No. 1)...


GAS COMPANY — Liability for the bursting of a gas receiving tank.

GENERAL DENIAL- In a pleading.




GOOD WILL- Of a partnership sale of.

See Sale.
GRADING — Of a street.


GUARANTY - Contract of.


GUARDIAN AND WARD A surety company's liability on a guardian's
hond for money of the infant left in the guardian's possession at the time of his
appointment.) Prior to January 1, 1902, a firm of attorneys, composed of
William F. Hodge and Robert H. Slocum, recovered, on behalf of an infant
client, a judgment for $5,502.76, which amount they deposited on January
2, 1902, in the name of Hodge & Slocum. On the same day Slocum drew
from the bank the sum of $3,347.61 which he claimed was due to his firm
for services rendered in the action, leaving in the bank a balance of $2,311.04
which concededly belonged to the infant client.

January seventh Slocum prepared a petition for his appointment as general
guardian of the infant, which petition recited that the infant was possessed
of $2,311.04, which was in the hands of Hodge & Slocum. January ninth
the petition, and a bond for twice the sum mentioned in the petition, were
filed with the surrogate, and letters of guardianship were issued to Slocum.
The day prior to the issuing of the letters of guardianship Slocum withdrew
from the bank by check $1,390 of the infant's funds, but it did not appear
that he did not have on hand, at the time the letters of guardianship were
issued, the entire sum of $2,311.04 belonging to the infant. Slocum
subsequently absconded with almost all of the infant's funds.

Held, that, under section 2596 of the Code of Civil Procedure, providing,
A person to whom letters are issued is liable for money or other personal
property of the estate which was in his hands or under his control when his
letters were issued, in whatever capacity it was received by him or came
under his control,” the surety was liable for the moneys withdrawn by
Slocum from the bank on the day before the letters of guardianship were
issued. MATTER OF FARDETTE 0. U. S. F. & G. Co.......

Guardian's sureties — when they may be sued, although proceedings
for an account have not been instituted against the guardian.
Kurz v. Hess.....

HABEAS CORPUS – Office of a writ of certiorari in a criminal case as com-
pared with that of a writ of habeas corpus.

HIGHWAY - City or village streets.







HUSBAND AND WIFE- Complaint, alleging a cause of action both for
criminal conversation and for alienation of a wife's affections the unlaw-
ful intercourse constitutes matter in aggravation of damages.] 1. The com-
plaint in an action alleged that the defendant, contriving and wickedly
* * * intending to injure the plaintiff and wrongfully to deprive him
of the affections * *
* society * * and assistance of the plain-
tiff's wife, did wrongfully
plan and undertake to alienate the
affections of plaintiff's said wife ** * and did finally acquire an improper
influence over" her. It also alleged that the defendant had sexual inter-
course with the wife of the plaintiff; that "the improper influence of defend-
ant over plaintiff's said wife has been so used by defendant, that the love,
affection and respect of plaintiff's said wife for plaintiff has been since
said September 11, 1899, wholly alienated and destroyed;
* and
that by reason of the premises" the plaintiff had been wrongfully deprived
of the comfort and society of his wife and his home had been made desolate.
Held, that, while the complaint probably contained sufficient allegations
to support an action for criminal conversation, it also included all the essen-
tial elements of a complaint in an action for the alienation of the affections
of the plaintiff's wife;


That the pith of an action for the alienation of the affections of the plain-
tiff's wife is the plaintiff's loss of his wife's society, and that while unlawful
intercourse is not a necessary element of such a cause of action, that fact
may properly be alleged in aggravation of the damages inflicted.





2. A copy of a letter admitting such intercourse written by the wife and
addressed to the defendant is competent evidence on the plaintiff's behalf — it is
not a confidential communication between the husband and wife, though written
in the former's presence.] Upon the trial of the action the plaintiff testified
that his wife, in his presence, wrote a letter, addressed to the defendant
at the latter's residence, acknowledging criminal relations with him. The
plaintiff also testified that he mailed this letter to the defendant. The
defendant denied having received the letter, and it was not produced upon
the trial. The plaintiff's wife was sworn as a witness for the defendant
and denied having had criminal relations with the defendant. For the pur-
pose of contradicting his wife the plaintiff offered in evidence a copy of the
letter in question in her handwriting, but such copy was excluded on the
ground that it was a confidential communication to her husband.

Held, that the ruling was erroneous, and that the copy of the letter was
competent evidence. Id.

3. Evidence insufficient to establish desertion of a wife by her husband.]
A husband and wife, while residents of the State of Massachusetts, separated
in that State, and the husband went to the city of New York. Some months
later the wife followed him to that city and offered to live with him, and
asked him if he would support her, which he refused to do.

The parties had children who had never been in the city of New York,
and who resided with their grandparents in Nova Scotia. The parties had
never cohabited in the State of New York, and it did not appear which of
the parties was to blame for the separation, which occurred in Massachusetts.

Held, that the husband had not deserted the wife within the meaning of
section 685 of the revised Greater New York charter, which provides:
"Every person in the city of New York, as constituted by this act, who
actually abandons his wife or children without adequate support, or leaves
them in danger of becoming a burden upon the public, or who neglects
to provide for them according to his means, or who threatens to run away
and leave his wife and childreň a burden upon the public, may be arrested."


Proof that the wife is likely to become a public charge.] What proof
fails to show that the wife is likely to become a charge upon the public,




Agreement by a wife to will to her stepson so much of the estate left
to her by his father as might not be used by her it is not enforcible by the




Dower interest of the widow.



An unmarried woman may insure her life for the benefit of her
reputed husband. RUOFF v. JOHN HANCOCK MUT. LIFE INS. Co.......



ICE- Negligence—what neglect of a city to keep a sidewalk free from ice
requires the submission of a case to the jury.


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INDORSEMENT - Of negotiable paper.



INDICTMENT - Selling pools on a horse race- when an indictment therefor
sufficiently states the crime and the acts constituting it. - when it is not defective
for duplicity - if the defendant is not advised with sufficient definiteness of the
acts with which he is charged, he should apply for a bill of particulars.


INFANT - Rights and duties of guardians of infants.

In civil actions.



See TAX.




INJUNCTION To prevent the execution of a resolution adopted by the votes
of members worshipping at chapels connected with a parent church where such
practice has been acquiesced in for many years, and no property rights are
involved, equity will not interfere.





Contempt where the use of a system of figures is enjoined, the placing
and use, before each figure of such system, of the figure 1 is a contempt.




Erection of telephone poles in a street — an injunction pendente lite to
prevent it refused.




INSURANCE - Mutual benefit life insurance · what is sufficient to effect a
change of beneficiary.] 1. The by-laws of mutual benefit life insurance
association provided, A member may at any time change, alter or amend
the designation of person or persons, to whom the benefits named in his
Certificate are payable, by surrendering said Certificate after having filled
or caused to be filled the blank which shall be provided for that purpose,
on the back of the same, providing for new designation, and attaching his
signature to it. The Secretary of his branch shall attach his signature as
witness, and the seal of his branch, and forward it to the Grand Secretary,
if in his immediate jurisdiction. Upon the receipt of the same, by the
Supreme Recorder, he shall issue a new Certificate in accordance with such
change of designation."

A member of the association, with intent to change his beneficiary, pro-
cured the blank on the back of the certificate to be filled in and attached
his signature thereto. He then procured the certificate and indorsement to
be delivered to the president of the local branch to which he belonged.
The president and secretary of the branch then went to the branch lodge
room, and the secretary, although he did not see the member sign the instru-
ment, signed his name as a witness and affixed the seal of the branch to it.
He then delivered the certificate to the president of the local branch, who,






in turn, delivered it to one of the grand trustees of the association. The
latter mailed the certificate and indorsement to the supreme recorder of
the association, by whom they were received the next morning, and he at
once issued a new certificate, naming the new beneficiaries therein. After
the instrument had been mailed, and before it had been received by th
supreme recorder, the member died.

The grand secretary, to whom the by-laws directed each change of bene-
ficiary to be forwarded, had no duty to perform with reference to the change
of beneficiary, except to pass it over to the supreme_recorder, who was the
officer of the controlling body of the association. In the usual course of
business of the association applications for a change of beneficiary were
received, not only from the grand secretary, but from other sources, even
directly from the insured.

Held, that a change of beneficiary had been properly effected.



Held, that the plaintiffs were not entitled to recover upon the policy.


2. A clause that if the building fall, all insurance shall cease—it covers
the case of a store, not injured by the fall of another part of the building,
although damaged in consequence of a fire occasioned by such fall.] In an action
to recover upon a policy of fire insurance containing the following clause:
"If a building or any part thereof fall, except as the result of fire, all insur-
ance by this policy on such building or its contents shall immediately cease,”
it appeared that the policy covered the plaintiffs' stock of merchandise which
was contained in the westerly store in a building bounded by four brick
walls. The building was three stories high and had three cellars, one extend-
ing the entire depth of the building and the other two only under the rear
portion thereof. The principal story was divided into two equal parts by a
stairway formed by lath and plaster partitions leading from the street to the
stories above. The plaintiffs occupied the store on the street floor west of
the stairway and also that portion of the upper cellar immediately beneath
the store. The principal floor on the easterly side of the stairway and the
upper floors of the entire building and that portion of the upper cellar under
the easterly half of the building were occupied as a hotel. The two lower
cellars were occupied for purposes not connected with the plaintiffs' busi-
ness. There was no communication between the plaintiffs' premises and the
other portions of the building.

During the term of the policy, the east wall of the building, which was the
east wall of the hotel, collapsed, causing the stories immediately above and
some portion of the roof or stories over the plaintiffs' store to fall into the
hotel premises. A fire started in the ruins, and, in attempting to extinguish
it, the insured property was damaged. The plaintiffs' property was in no
manner injured by the falling walls and, but for the fire, they would have
suffered no damage.

3. Fire insurance policy — competency of a list of articles wholly
destroyed - purchase price as evidence of value-limitation, imposed by the
policy, to cash value — misstatement of the loss, not fraudulent, does not avoid
the policy.] In an action to recover upon a policy of fire insurance covering
pictures, furniture and other personal property contained in a hotel, the
plaintiff offered in evidence what purported to be lists of 500 articles which
she claimed were in the hotel at the time of the fire and which were totally
destroyed. The plaintiff testified that such lists had been made up within
two weeks after the fire while the matters were fresh in her mind, and
that, at the time they were made, she knew them to be correct. The lists
stated the place of purchase and the purchase price of the articles in ques-
tion, and the length of time they had been in use.

Held, that the lists were admissible, not as evidence in themselves, but
as a record of the things in detail to which the witness had testified;

That the purchase price of the property was some evidence of its value;
That the fact that the policy limited the defendant's obligation to the cash
value of the property at the time of the fire, and that the plaintiff's esti
mate of her loss was based on the purchase price of the articles, did not
defeat her right to a recovery, it not appearing that the plaintiff had been
guilty of fraud;







INSURANCE - Continued.

That a mere misstatement of the loss, based upon an erroneous estimate of
value, would not operate to avoid the policy; that, in order to have that
effect, the misstatement must be false and fraudulent.
CHEEVER 0. SCOTTISH UNION & N. Ins. Co. (No. 1). ......

4. Payable to a designated beneficiary and at the option of the company
to the administrator the administrator cannot sue therefor.) A policy of life
insurance provided: “In the event of the decease of the insured while this
policy is in force, payment of the amount due hereunder will be made within
twenty-four hours after satisfactory proof of death to the beneficiary, if liv-

but the company may make payment to the executor or
administrator of said insured, or to any relative by blood, or connection by
marriuge or to any other in the judgment of said company equitably enti-
tled to the same by reason of having incurred expense in any way on
bebalf of the insured for burial or for any other purpose, and the receipt of
any such person shall be conclusive evidence that payment has been properly
made and shall discharge the company from liability under the policy.

At the time of the insured's death the beneficiary designated by the insured
was living

Held, that the administrator of the insured was not entitled to maintain an
action to recover upon the policy
RuoFF 0. John HANCOCK MUT. LIFE INS. Co.......

5. An unmarried woman may insure her life for the benefit of her reputed
husband.] A woman may insure her life for the benefit of her reputed hus-
band, even though she is not lawfully married to him. Id.

6. Accident insurance - death from an injury to the appendix caused
by the muscle rubbing against it while the insured was riding a bicycle.] A
policy of accident insurance obligating the insurance company to pay cer-
tain sums if death resulted solely from bodily injury effected through exter-
nal, violent and accidental means, which, independent of all other causes,
resulted in the death of the insured, does not impose liability upon the insur-
ance company where the insured died as the result of appendicitis caused
by a bicycle ride voluntarily and deliberately taken by the insured, when
it appears that, during the continuance of the ride, the insured did not
sustain any fall or shock or come into collision with anything, and that the
appendicitis was due to the fact that one of the muscles used in the opera-
tion of riding the bicycle necessarily rubbed against the appendix and

7. Neglect of the insured to serve proof of lo88 within sixty days waiver
thereof.] A waiver of a condition contained in a policy of fire insurance,
that proofs of loss shall be served within sixty days after the fire, may be
established by proof of acts or conduct on the part of the insurance com-
pany occurring subsequent to the breach of the condition, which fairly
indicate an intention to waive the same.

The waiver need not be made in express terms; it may be inferred
from circumstances.

No new consideration is necessary to support such a waiver, and, when
once established, it cannot be recalled and a frrfeiture insisted upon.

8. Retention of proofs serred after the sixty days.) When determining
the question whether there was a waiver of this condition, the jury may take
into consideration the fact that the insurance company, with full knowledge
of the insured's failure to serve the proofs of loss within the prescribed
time, based its refusal to pay solely on another ground, and that, without
objection, it retained, for a period of nine or ten days, proofs of loss served
by the insured after the prescribed time had expired. Id.

9. An insurance adjuster to whom the company refers the matter may
waite the defect.] An insurance adjuster, in whose hands the insurance com-
pany places the claim for settlement and to whom it refers the insured as
the proper person with whom he is to negotiate, has power to waive the
furnishing of proofs of loss within the prescribed time. Id.

10. Fire insurance policy an oral agreement contemporancous with a
written agreement of appraisal is incompetent.) Where, after a loss under a

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