The only reported American case where this question is discussed, is Sawyer v. The United States Casually Company, 8 Am. Law Reg. N. S. 233, in which, after discussion of Hooper's Case, Reed, J., held that the words "totally disabled from the prosecution of his usual employment," in an accident policy, meant disabled from doing substantially all kinds of the plaintiff's accustomed labor to some extent, and that the assured must be deprived of the power to do to any extent substantially all the kinds of his usual labor.

In the present policy in use by the Travelers' Insurance Company the condition is, "which shall independently of all other causes immediately and wholly disable and prevent him from the prosecution of any and every kind of business."

Stress is laid here on immediate disability caused by accident, in order to avoid remote claims for subsequent disability arising from mixed causes, and total disability sufficient to occasion the entire loss of business time, in consequence of his injuries. But the new clause has not yet been judicially construed in any reported case, and, while in terms very stringent, it would be a question of fact for the jury to decide whether the assured was totally disabled, and what was his business, for which he was disqualified; and probably the practical result will be nearly the same construction as that put on the old form.

The risks which are insured against are classified according to employment or occupation, and various rates of premium are charged as the employment is more or less dangerous. The assured in Provident Life Insurance and Investment Co. v. Martin, 32 Md. 310, was a "locomotive engineer." The company contended that, in climbing over the tender to apply the brakes on the next car, he was acting outside of his regular occupation and doing the work of a brakeman, and thus avoiding the policy. But the court said there was no warranty or stipulation that the assured should not engage in any other occupation, nor that the company should be liable only for accidents occurring in the course of his regular employment, but, on the contrary, the policy covered all accidents, except certain specified ones.

Burroughs was hurt in pitching hay, while on a visit to his grandfather. The company objected that he did not give notice of, nor pay for, the extra hazard of doing this work, which was outside his ordinary occupation. But the court say there was no evidence of any change in his occupation, and that what he did on this visit did not amount to a change of business within the meaning of the policy. North American Life and Acc. Ins. Co. v. Burroughs, 69 Penn. St. 43. In Stone's case the policy provided that it should be void if the assured changed his occupation to a more hazardous one. He was a teacher, and, when he fell from the frame of his house, was engaged in building two dwelling-houses. But the whole proof of change in business consisted in the fact of his causing these houses to be built, apparently for his own use, and the court declared that fact to be no evidence whatever of the assumption of any new business by him, and the point was left to the jury with the instruction that “changing occupation" meant an engaging in another employment as a usual business; and the court above said it was preposterous to affirm that because he, a teacher out of employment, had two houses built by contract, he thereby became a builder by profession.

But the company further insisted that, even if he did not change his business, he lost his life in doing an

act not incident to his occupation of teacher, but incident to that of a builder. The court above considered that the instruction given to the jury was too favorable for the company, although the jury found for the plaintiff, and therefore the company had no exception. The instruction given to the jury was, that the company is exempted from liability for injuries received in doing any act which falls peculiarly within the ordinary duty of any forbidden occupation, as if an attorney at law should take charge of a steam engine on a single occasion. But the appellate court held that the injuries excluded, which were described as "received in any employment, or by any exposure either more hazardous in itself," or so classified by the company, had reference to employments, and not to individual acts. The whole wording was ambiguous, and, if so important a qualification was intended to be made, the company must make it plainly, for they had the power to do so in the body of their own contract, not merely by implication from a classification of risks indorsed on it. Nor is the broad construction of this clause a practical one. Who can say what acts are properly incidental only to one occupation? The subdivisions of life are too numerous and diverse to admit of such sharp lines of distinction; and it would be improper by construction of any contract to import into it such confusion, especially where the restrictions against exposure afford protection to the company, and would cover the supposed case of an attorney's becoming an engine-driver. Stone v. U. S. Casualty Co., 5 Vroom (34 N. J.), 371.

These risks were classified on the back of Stone's policy, and were not expressly referred to in the body of it, nor embraced in it as a modification. The court further objected that this arrangement was not sufficient to make them a modification of the terms of the contract.

The Provident Life Insurance and Investment Co., after its usual fashion, raised this defense also, in a characteristic way. In Provident Life Insurance Co. v. Fennel, 49 Ill. 180, the assured was described as a "switchman," and the company offered to show that at the time of his death he was acting as "brakeman." The court excluded the evidence as immaterial, saying there was no covenant that he should not engage in any other occupation nor do any act except as a switchman; the policy was against accidents generally, not against those of his own occupation.

The same rules about non-payment of premium apply to accident policies which hold in life policies. Simpson v. Accidental Death Ins. Co., 2 C. B. N. S. 257 (1857); S. C., 2 Big. Cas. 497, 529 and note. It has been decided that the clause acknowledging receipt of premium cannot be controverted. Provident Life Ins. Co. v. Fennel, 49 Ill. 180, 181. But the weight of authority and reasoning is otherwise. There is no sound reason why the receipt in the policy should not be open to explanation like the same receipt in a deed, so far as to allow unpaid premiums to be recovered, though not of course to permit the policy to be invalidated.

It is held extremely necessary to construe the policies contra proferentem. Fitton v. Accidental Death Ins. Co., ut supra; Smith v. Accident Ins. Co., ut supra. If any exceptions are to be made, they must be clearly expressed, and they will be interpreted strongly against the insurers; but the same rules which apply to all written contracts apply here (Stone v. U. S. Casualty Co., ut supra), and clauses printed on the back of policies are not part of the policy unless expressly made so

by reference and explicit adoption in the body of the policy. Ib.

No medical examination is required in accident insurance, and consequently there is not the same full disclosure as to health required as in life insurance. Nondisclosure of former insanity was held in Mallory v. Travelers' Insurance Co., 47 N. Y. 52, not to be a fraudulent concealment, and the court held that, unless the deceased concealed the facts which were in his own mind material to the risk, the policy was not void.

Where it appears that death is the result of an accident or of suicidal injury, the presumption, in absence of proof, is that the injury was accidental, because all men are presumed to be sane. Ib.

properly to continue until the assured had fairly left the conveyance. But the case does not include every accident happening during a journey, unless it happen in a railway carriage.

Northrup's case was taken to the court of appeals, and the decision of the court below reversed (43 N. Y. 516, 1871), the judges holding that the risk covered the whole journey, and that constructively a person who was walking from steamboat to cars on a through trip was to be deemed traveling by public conveyance from one end of the route to the other. This construction of the contract is open to the objection that the principle laid down would apply equally to walking across the whole city of New York on a through trip to Washington, as well as to going from the ferry-boat at Jersey City to the train in the adjoining station. A traveler, therefore, in prosecuting his journey "by public or private conveyance" might find himself run over by an omnibus in Broadway, or hurt by a fireengine in the Bowery, or knocked down by a falling brick from a building, and yet hold the company liable for an injury which manifestly is excluded in contemplation of their contract, and not covered by their

In Southard's case, the assured was hurt internally by jumping off a car in a railroad station, and running voluntarily, for his own convenience in business. The injury was considered by the arbitrator to be caused by his own voluntary act, and to be in the nature of disease; since there was no violence or unexpected occurrence in course of the running and jumping, but every thing happened as Southard expected, and there was no accident unless intentional running and jumping be accidents.

An accident ticket insuring against "any accident while traveling by public or private conveyance provided for the transportation of passengers,' was purchased by a locomotive engineer. He was accidentally killed while riding on an engine, and in charge of it. The court, by an error manifest in the decision, treated this insurance as if procured under a “general accident" ticket, which insured against all accidents. The case is evidently decided upon a misapprehension of the contract, or else allows to agents a power to vary the contract in a manner wholly without legal precedent. Brown v. Railway Passenger Ass. Co., 45 Mo. 221 (1870).

The same ticket came up for construction in the supreme court of New York, in 1869, in Northrup v. Railway Passenger Ass. Co., 2 Lans. 166. The assured started by public conveyance for Madison county. On landing at the steamboat wharf at Geneva, she started to walk from the steamboat to the railroad, about seventy rods, in further prosecution of her journey, and, while walking, slipped and fell on the sidewalk, and received injuries from which she died. There were carriages to transport the passengers, but she chose to walk. The company contended that the contract only covered risks "while traveling by public or private conveyance," and that a woman's legs could not be held to be either within the meaning of the contract. The case of Theobald v. Railway Passengers' Ass. Co., 10 Exch. 45 (1854), was different; for there the assured was hurt while stepping out of the railway carriage, and the liability of the company for a "railway accident while traveling in any class carriage" was held

casualties. The court say: "It can surely make no difference in principle that the space to be walked over, in going from one conveyance to another, is a few steps more or less." Such construction really makes a new contract, which is all the more hard on the insurers, because they issue a "general accident ticket," which is this precise risk, and for which the premium is accordingly graduated. Manifestly no form of insurance can be safe which does not rest on averages exact and defined. Accidents while traveling by public and private conveyance are a class by themselves. A person walking is exposed to manifold risks which are excluded in the computation of conveyance risks. No construction contra proferentem should enlarge a contract of insurance by implication, so as to undermine its very foundation, and yet this is the effect of the decision of the court of appeals.

The same ticket, in 1870, came before the United States circuit court, in the western district of Michigan, and the same clause was construed. In Ripley v. Railway Passengers' Ass. Co., 2 Big. Cas. 738, the assured was going from Grand Haven, Michigan, to Dalton. He reached Muskegon Village at eleven o'clock at night, and thence started for Dalton on foot. When about half-way there, at midnight, he was waylaid and murdered. He held a "traveler's ticket," and suit was brought on it. The main issue was, "Was he traveling by private conveyance when walking these last eight miles of his journey?" Withey, J., in an able discussion, decided that "it will not answer any just rule of construction to hold that in one sense it is possible to say, that a man walking on foot is a private conveyance for himself, and therefore such must be its interpretation. The ordinary import of language, and not the possible import, must control." He therefore held that the plaintiff could not recover.

The case then went, by writ of error, to the United States supreme court, where the case was argued March 12, 1873. A decision has just been had, and we quote from it. The opinion was given by Chief Justice Chase. The only error complained of was, that the court below held that the insured, walking on foot at the time when the injuries were received by him, was not "traveling by public or private conveyance," as required by the policy.

not upon the ground that jurisdiction was not established by proper proof, but upon the ground that the proceedings, shown by the record, are void, the objection is insufficient to raise the question of jurisdiction upon appeal. Ib.

4. Questions relating to matters of practice, affecting the regularity of such proceedings, cannot be reviewed collaterally in another action. Ib.

5. An inquisition under a writ de lunatico inquirendo, showing that at the time of the execution of a deed the grantor was non compos mentis, is presumptive but not conclusive evidence of the grantor's incapacity in an action wherein a party claims under the deed. Ib.

EXPRESS COMPANY CHARGE.

1. Action to recover damages for neglect of duty on the part of the American Express Company in collecting a promissory note delivered to it for that purpose. Plaintiff delivered the note to defendant's agent at Rochester, with directions to take it to San Francisco, the place where the maker resided, and present it for payment; and, in case of refusal to pay, to sue and collect immediately. The agent placed the note in a collection-envelope, and indorsed upon the envelope the amount of the note, from whom received and by whom made, adding these words: "If not paid on presentation, have it sued and collected as soon as possible." Defendant's line only extended to New York, where it was delivered to Wells, Fargo & Co.'s Express, which forwarded the note to its destination. Plaintiff was not aware that defendant's line did not extend to San Francisco, and was not advised thereof at the time of the delivery of the note.

Held, that the contract with defendant was one to carry, not to forward, the note; that Wells, Fargo & Co. became the agent of defendant, and the latter is responsible for damages resulting from the negligence or non-compliance by the former with the directions. Palmer v. Holland, Treas'r Am. Ex. Co. Opinion by Gray, C.

2. Where several propositions are contained in one request to charge, unless all are material and true in law and in fact, the court does not err in refusing to comply with the request. Ib.

1. A tax upon the capital stock of a bank, including that portion invested in United States securities, was assessed, levied and paid prior to the decision of the supreme court of the United States, holding that the portion so invested was exempt from taxation; and a claim was made to the board of supervisors, under the provisions of the act to provide against illegal taxation (Laws of 1867, ch. 938), for the repayment of that portion of the tax so illegally assessed.

Held, that it was no answer to the claim that the claimant did not appear before the assessors and object to the assessment, or that it voluntarily paid the tax. People ex rel. Oneida Valley Nat. Bank v. Board of Supervisors of Madison Co. Opinion by Earl, C.

2. It is the office of a common-law certiorari to review the determinations of a board of supervisors, and this remedy is proper in case such a board rejects, as not just or legal, a claim which the legislature has declared by statute to be just and legal, and has directed the board to audit and allow. Although the court cannot, by certiorari, compel a performance of this duty, it can reverse the erroneous decision, leaving the party, in case of further refusal to perform its duty, to such fur

ther remedy by mandamus or otherwise as the law gives him. Ib.

ILLEGAL TAXATION-MANDAMUS TO SUPERVISORS. 1. The relator showed that it owned and was assessed upon United States stocks; that it paid the taxes claimed, and properly presented its claims therefor under section 1, chapter 938, Laws of 1867, to defendant. These facts were not disputed. Defendant adopted a resolution, in substance, that the claim was invalid, and that the same be disallowed.

Held, that a mandamus directing defendant to hear the claims of relator, and to determine whether it paid the taxes as stated, and if so, to audit and allow the amount thereof and cause the same to be levied and collected as prescribed by said statute, was proper. People ex rel. Otsego County Bank v. Board Supervisors Otsego County. Opinion by Earl, C.

2. The provision of the act providing for relief against illegal taxation, section 1, chapter 938, Laws of 1867, authorizing and empowering the boards of supervisors of certain counties therein named to hear and determine claims for illegal assessments upon United States securities and to repay the amount collected upon such assessment, is mandatory. Upon the presentation of a claim thereunder, the only question to be determined by the board, and in reference to which it has any discretion, are whether the claimant has such a claim, and if so, the amount thereof. When the fact of the existence of the claim is undisputed, the board has no authority to reject it as illegal, and it can be compelled by mandamus to exercise its discretion upon the facts and the amount of the allowance. Ib.

3. Where a statute provides for the doing of an act for the sake of justice, or where it clothes a public body or officer with power to do an act which concerns the public interests or the rights of individuals, though the language of the statute be permissive merely, it will be construed as imperative, and the execution of the power may be insisted upon as a duty. lb.

INSURANCE.

Action upon a policy of insurance issued by defendant to plaintiff, insuring him against loss by fire upon a stock of fire-works and other merchandise, hazardous and extra hazardous, in the city of New York. In the classification upon the policy, fire-works were classified as specially hazardous. It was provided in the policy that whenever any article subject to legal restrictions should be kept in quantities, or in a manner not allowed by law, unless the use or keeping was specially provided for, the policy should be void. By an ordinance of the city, fire-works, excepting "works of brilliant colored fires," were allowed to be kept in limited quantities for a limited time, and upon permission for retailing. Plaintiff purchased and placed in his store a quantity of signal lights, classed as "works of brilliant colored fires." A fire occurred which the evidence tended to show originated in the signal lights. The court directed a verdict for the plaintiff.

Held, error; that it could not be presumed the policy was intended to cover an article so specially hazardous that the assured was prohibited from keeping it, but that the term "fire-works," within the meaning of the policy, only had reference to such fire-works as might, by permission, be kept in store; that if defendant was not entitled to a nonsuit, it, at least, was entitled to have the question, whether the risk was increased, submitted to the jury. Jones v. Fireman's Fund Ins. Co. Opinion by Gray, C.

PRACTICE.

1. To determine whether the reversal by the general term, of a judgment entered upon the report of a referee, was upon questions of fact, resort cannot be had to the opinion of the general term. Unless it appears by the order or judgment of said court, it will be deemed to have been upon questions of law only. Sheldon v. Sheldon. Opinion by Earl, C.

2. If any material fact has been found by the referee, wholly without evidence or against the undisputed evidence, it is an error of law reviewable upon appeal. Ib.

RAILROAD MORTGAGE-ROLLING STOCK-DIRECTORS.

1. That the rolling stock of a railroad is not a part of the realty, but retains its character as personal property. Hoyle et al. v. P. & M. R. R. Co. et al. Opinions by Johnson and Reynolds, CC.

2. A mortgage, including its rolling stock, executed by a railroad corporation under authority of the general railroad act of 1850 (ch. 140, Laws 1850, § 28), was, prior to the passage of the act of 1868 (ch. 779, Laws 1868), exempting it therefrom in certain cases, subject to the provisions of the act requiring mortgages of personal property to be filed when not accompanied by an immediate delivery, etc. (ch. 279, Laws 1833), and such a mortgage not filed as prescribed by said act was void as against creditors of the corporation. (Reynolds, C., dissenting.) Ib.

3. It seems that, for the purposes of said act, a railroad corporation is to be deemed resident in all the towns and cities in which any part of its line is located. Ib.

4. The office of director of a railroad company is fiduciary in its character, and in consequence a director is incapacitated from dealing in his own behalf in respect to the corporation property, or in respect to any matters involving his powers and duties as such director. This incapacity is not limited to the time he is acting as director, but continues during all the period of his directorship. Ib.

5. A director, therefore (considering that relation only), cannot become purchaser of the property of the corporation, upon a sale under an execution against it, except subject to its right to disaffirm and to demand a resale, actual fraud or actual advantage in such case need not be shown. Where, however, the director is also an execution creditor, he has the right to sell under his execution; but whether at such sale or at a sale under a prior execution he can purchase to protect his own right, and hold absolutely against the corporation, quere. Ib.

6. The P. & M. R. R. Co. executed two mortgages of its real estate and equipments, etc., to trustees for bondholders. The mortgages were not filed as chattel mortgages. Various judgments were subsequently obtained against the company including one in favor of defendant V., who was one of its directors. The rolling stock of the company was sold under executions issued upon these judgments, and V. became the purchaser. Plaintiffs, as successors of the original trustees, brought this action to foreclose the mortgages. Held, that the mortgages, so far as they affected the rolling stock, were void as to creditors. (Reynolds, C., dissenting.) That, conceding V. could not purchase and hold the property absolutely as against the company, plaintiffs had no equitable rights until after all the judgments were satisfied, and as their case was not based upon any such ground, the court was not called upon to consider what might have been their

rights, upon an offer to pay the judgments as a condition of a resale, and that plaintiffs had no lien upon the property, or rights therein that could be enforced in this action. Ib.

VENDOR AND VENDEE - TITLE.

Plaintiff purchased certain premises upon foreclosure sale, October 4, 1864. By the memoranda of sale signed by him, the residue of the purchase-money was to be paid, and deed delivered upon receipt thereof, at the referee's office, November 1, 1864; if plaintiff neglected to call at that time, he was to be charged with interest thereafter, upon the whole amount of his purchase, unless the referee should deem it proper to extend the time. The deed was ready at the time specified, but plaintiff did not call or pay, or offer to pay, the balance due; nor was the time extended by the referee. Plaintiff paid the balance, with interest upon the whole purchase, August 5, 1865, and received his deed. There was a surplus which defendant, as owner of the equity of redemption, received. In an action to recover rents collected by defendant, from November 1, 1864, to August 5, 1865, held, that plaintiff acquired no title or right of possession prior to the delivery of the deed; that, conceding that a retrospective effect could be given to the deed, it could only be where its delivery had unjustly withheld without fault of plaintiff; that the interest was to be considered as part of the purchase-price, not as an equivalent for the rents, and that its payment gave plaintiff no right of action. A legal title cannot vest under a deed before its delivery. Mitchell v. Bartlett. Opinion by Lott, Ch. C.

CORRESPONDENCE.

HOWARD'S REPORTS.

DEAR SIR-It is quite time to enlarge your classification of the evils of reporting. There should be added the lazy and outrageous. You will find both classes well illustrated in the June number of Howard. Take three cases: Holland v. Hayman; Kinne v. Kinne and Crouse v. Garlock, and observe the space given to the points of counsel, discussing evidence for the most part, notably so in the first and third. The first occupies seventeen pages. Judge Learned disposes of the case in twenty-four lines. Yet Mr. Howard gives sixteen pages for counsel to discuss conflicting evidence!! In the third, nine pages are filled with the report of the case, seven given up to counsel to discuss conflicting evidence!! The second consumes nine pages. Judge Smith says all that he cared to say in seventeen lines, and Mr. Howard gives counsel eight and onehalf pages!!

Here then we have a pamphlet of about ninety-five pages, thirty-one of them-almost a third of the whole publication-given up to counsel!! This is only in three cases! If the discussion were of any value or interest, this might seem pardonable. It is extremely rare that either the general term or court of appeals would even listen to it, and yet the profession are paying for it! The matter of these three cases is as unworthy as the manner. The same may be said of at least two others in this number.

It is difficult to conceive how these cases ever were thought worthy of a place in any series of reports. Often a reporter is bored by the assiduity of ambitious young lawyers, and the chagrin of disappointed older ones. The one class desire to figure in the reports from the love of conspicuity. The other to show