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tified to the truth. It seems, looking at the record alone, that there is room for a different conclusion. But there are many cases in the books where it has been held that the mere act of voting at a particular place is not conclusive on the question of residence. Many well-considered cases of that kind are cited to our attention in the brief of counsel for respondents. Robinson v. Charleton, 104 Iowa, 296, 73 N. W. Rep. 616'; Dennis v. Bank, 19 Neb. 675, 28 N. W. Rep. 512; Mallard v. Bank, 40 Neb. 784, 59 N. W. Rep. 511; Corey v. Schuster, 44 Neb. 269, 62 N. W. Rep. 470; Campbell v. Potter (Ky.), 29 S. W. Rep. 139. In the last case cited the Kentucky court said: This court has held that the homestead right is never forfeited when there has been an occupancy and then a temporary removal with the intent to return and make the premises a home. Appellants endeavored to show that the appellee abandoned all purpose to return to the property and that his residence had been permanently located elsewhere by proving that he registered and voted in wards in Bowling Green other than the one in which his home was situated. The proof shows that he did this. This act is not conclusive of the question, but is merely a fact, in connection with the other facts proven, to aid the court in determining whether the removal of the appellee from the premises was permanent or temporary.

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purely a judicial question, to be considered substantially the same as that of whether the legislature has exceeded its constitutional authority, reasonable doubts being resolved in favor of municipal power. Clason v. City of Milwaukee, 30 Wis. 316; Barling v. West, 29 Wis. 307; Hayes v. City of Appleton, 24 Wis. 542; 17 Am. & Eng. Enc. Law (1st Ed.), p. 246, and cases cited; 1 Beach, Pub. Corp. §§ 319, 320, 327; Elliott, Roads & St. § 187. Many cases will be found within the field covered by the above citations which in principle condemn an ordinance requir ing a bell on a street car to be continuously sounded while the car is in motion upon a street. In North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207, an ordinance prohibiting the use of a steam motor on street cars was held void. In Van Vorst v. Mayor, etc., 27 N. J. Law, 497, an ordinance prohibiting a railroad train from obstructing a street more than two minutes at a time was so held. In Delaware, L. & W. R. Co. v. Township of East Orange, 41 N. J. Law, 127, an ordinance compelling the maintenance of flagmen at grade crossings was likewise held void. In Hayes v. City of Appleton, this court, speaking by Dixon, C. J., said: "The power of a common council therefore extends only to the making of regulations for the good of the State. They must be such as only prudence and reason require, not unreasonably prejudicial to private rights and interests.' Who can say that prudence and reason require that a bell shall be continuously sounded on a street car while it is in motion upon the street? No one, we venture to say, who applies ordinary reason to matters of common knowledge. Common sense suggests that instead of operating to protect persons traveling upon the street it would have the opposite

effect. It would tend to alarm horses not familiar with it; and persons would naturally become so

MUNICIPAL ORDINANCE - MUST BE REASONABLE.-Municipalities are not supreme in legislative power, and to that rule the city of Eau Claire, Wisconsin, is indebted for wiping off an ordinance requiring the continuous ringing of a bell on street cars while in motion, and rendering them guilty of negligence per se in failing to do 80. It is difficult to understand how a municipal assembly even of school boys, could have been guilty of the lack of common sense which the pessage of such an ordinance would seem to sig-familiarized with the sound that it would cease to nify. To demand that the motorman of an electric car shall keep his gong going continually while his car is in motion is not only ludicrous and impossible, but absolutely unnecessary. In the case of Stafford v. Chippewa Valley Electric Railway Company, 85 N. W. Rep. 1036, the Supreme Court of Wisconsin held that the violation of such an ordinance would not render a street railway company guilty of negligence per se in a crossing accident, even though the ordinance is a condition in the grant of a franchise to the company, since the condition is unreasonable. The court's opinion is clear on this point:

"It is elementary that the power of the city council to enact ordinances is not unlimited. It may go, within the field delegated to it by the State legislature, to the boundaries of reason. Within such field its discretionary power is supreme, but it cannot legitimately go beyond. If it does, in so far its enactments are void. Whether, in any given case where the facts are undisputed, a city council has exceeded its power by the -enactment of an unreasonable ordinance, is

attract attention. Without continuing the discussion, we venture to say that no good reason can be assigned for such a regulation in the operation of street railroads. The ground of the doctrine that the violation of an ordinance designed to promote the safety of individuals is negligence per se, is that it is a reasonable regulation to that end. Smith v. Traders' Exchange, 91 Wis. 360, 64 N. W. Rep. 1041, 30 L. R. A. 504. Hence it goes almost without saying that whether the violation of a regulation which is part of a granted franchise constitutes actionable negligence must turn on the same principle."

LIFE INSURANCE-MISSTATEMENTS AND CONCEALMENTS IN THE APPLICATION. Statutes in many of the States require applications for life insurance to be made in the utmost good faith and declare that representations are considered as covenanted to be true, and that a variation by which the nature, extent or character of the risk is changed will void the policy. The United States Circuit Court of Appeals has just

passed upon facts arising under such a statute in the case of Fidelity Mutual Life Association v. Jeffords, 107 Fed. Rep. 402. Under such a statute, containing a further provision that failure to state a material fact, if not done fraudulently, does not avoid this policy, it was held that an untrue statement by the insured that he did not have consumption, or his omission to name, when requested, all physicians who examined him within a specified time, would not avoid his policy, if his answers were made in good faith, and the misstatement or omission was not willful, but due solely to his ignorance or failure to recollect, notwithstanding, he distinctly certified that his answers were true, and agreed that, if any concealment or untrue statement or answer be made, the policy should be void. The court said:

"It may be stated as a general rule that answers to questions propounded to insured in an application for insurance, unless they are clearly shown by the form of the contract to have been intended by both parties to be warranties to be strictly and literally complied with, are to be construed as representations and not as warranties. Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. Rep. 500, 30 L. Ed. 644. One of the statements that the insured was required to make to obtain the insurance was that he was 'free from any and all disease,' except as stated. Placing the construction upon the application which the plaintiff in error contends for, the policy would be made void if the insured had a disease material to the risk, although he was entirely ignorant of the fact. It might be a disease so undeveloped that it could not be discovered by an expert physician, and yet if it afterwards developed, and it could be shown that the germs of the disease were active in the insured at the date of his application, the policy would be made void. We cannot believe that this contract is fairly susceptible to such construction. Such a construction ought to be avoided unless clearly demanded by legal rules. In the absence of explicit and unequivocal words requiring such interpretation, the court should not conclude that the insured took a life policy with the distinct understanding that it should be void, and all premiums paid forfeited, if at the time of his application he had a disease of which he was entirely unconscious. Moulor v. Insurance Co., 111 U. S. 335, 4 Sup. Ct. Rep. 466, 28 L. Ed. 447. We do not think that it was the purpose of the insurers to exact from the insured, as a condition precedent to a valid contract of insurance, a guaranty against the existence of diseases of which he had no knowledge, and which even a skillful specialist, on careful examination, would be unable to detect. We are not unmindful of the fact that the insured distinctly certifies that the statements in his application are true, and that he agrees that, if any concealment or untrue statement or answer be made, the policy of in-surance shall be void. Referring to the Georgia

statute, and probably without the statute, concealment means 'willful concealment.' Construing a life policy, Mr. Justice Harlan asked what was meant by true and untrue answers, and he answered the question, saying: 'In one sense, that only is true which is confirmable to the actual state of things. In that sense, a statement is untrue which does not express things exactly as they are. But, in another and broader sense, the word "true" is often used as a synonym of "honest," "sincere," "not fraudulent." Look ing at all the clauses of the application, in connection with the policy, it is reasonably clearcertainly the contrary cannot be confidently asserted-that what the company required of the applicant, as a condition precedent to any binding contract, was that he would observe the utmost good faith towards it, and make full, direct, and honest answers to all questions, without evasion or fraud, and without suppression, misrepresentation, or concealment of facts with which the company ought to be made acquainted, and that by so doing, and only by so doing, would he be deemed to have made "fair and true answers. Moulor v. Insurance Co., 111 U. S. 335. 345, 4 Sup. Ct. Rep. 466, 28 L. Ed. 447."

WILLS-RENTS AND PROFITS ACCRUING AFTER TESTATOR'S DEATH.-In the Case of Cole v. Edwards, 62 S. W. Rep. 642, the Supreme Court of Tennessee decided an interesting point of law relating to the rights of the residuary devisees to the rents and profits accruing after the testator's death and before the vesting of the estate in them. In that case it was held that where a will directed that the residue of testator's property remaining after payment of stipulated amounts should be divided into equal shares, and each share conveyed in trust for testator's children, who should receive the rents and profits for life, the rents and profits accruing after testator's death, and before the conveyance to trustees, should not be added to the corpus, but such life tenants were entitled to receive such rents and profits, except those for the first year. We quote the following from the opinion:

"The next assignments in logical order are the third and fourth assignments, filed by Mrs. Edwards and Mrs. Benson. These present the contention that the net rents, profits, and interest arising upon that portion of the funds and assets of the estate which are the subject of the several life estates, and accruing between the death of the testator, and the conveyance to the trustees provided in item 17 of the will, do not go into the corpus of the several trusts, but belong to the life tenants. The question is one that arises between the life tenants and the remaindermen. The rule is that the life tenant is entitled to all the interest, rents, and profits arising on the property which is the subject of the life estate. Pritchitt v. Trust Co., 96 Tenn. 472, 477, 36 S. W. Rep. 1064, 33 L. R. A. 856; In re Turner, 101 Tenn. 701, 50 S. W. Rep. 757; For

per

sey v. Luton, 2 Head, 184; Hunt v. Watkins, 1 Humph. 498, 506. In a well-considered case the court of errors and appeals of New Jersey, said: There is another class of cases which are apparently exceptions to this general rule [that legacies do not bear interest until the expiration of one year from the testator's death]; but these cases stand upon peculiar and special grounds, and are regarded as a class by themselves. On a bequest of the residue of the testator's estate, or of some aliquot part or proportion thereof, in trust to pay the interest or income to a legatee for life, with a gift of the principal over at his death, the interest or income payable to the life tenant will be computed from the testator's death. Green v. Green, 30 N. J. Eq. 456; Same v. Blackwell, 32 N. J. Eq. 768; Van Blarcom v. Dager, 31 N. J. Eq. 783; 2 Spence, Eq. Jur. 552-569; Howe v. Earl of Dartmouth, 7 Ves. 137, and the notes to that case in 2 White & T. Lead. Cas. Eq. 486. Cases of this class are distinguished from legacies of a definite sum with remainder over, with respect to the computation of interest to the life tenant. 2 Williams, Ex'rs. 1301; Fearns v. Young, 9 Ves. 549, per Lord Eldon; Baker v. Baker, 6 H. L. Cas. 623, Lord Chelmsford; Van Blarcom v. Dager, 31 N. J. Eq. 783, per Dood, J. In the case last cited the computation from the testator's death of interest or income to the life tenant, where the gift is of the residue, is placed on a special equity as between the parties who are to participate in the gift, arising from the injustice that would be done to the life tenant by the addition of the entire interest to the capital. 2 Rop. Leg. 1320.' Welsh v. Brown, 43 N. J. Law, 37, 41. See, also, Rodman v. Fincke, 68 N. Y. 239; Marsh v. Taylor (N. J. Ch.), 10 Atl. Rep. 486; Green v. Green, 30 N. J. Eq. 456; Same v. Blackwell, 32 N. J. Eq. 773. In Williamson v. Williamson, 6 Paige, 298, 304, 305. After a full examinalion of the authorities, Chancellor Walworth, said: "The result of the English cases appears to be-and I have not been able to find any in this country establishing a different principle-that in the bequest of a life estate in a residuary fund, and where no time is prescribed in the will for the commencement of the interest or the enjoyment of the use or income of such residue, the legatee for life is entitled to the interest or income of the clear residue, as afterwards ascertained, to be computed from the time of the death of the testator. All the cases which appear to conflict with this rule, except the two decided by Sir John Leach, which are no longer to be considered as authority, will be found to be cases in

investment is made,-either within the year or at the expiration of that time. But, as a year is considered a reasonable time for the executor to comply with the testator's directions as to the conversion or investment, the legatee for life cannot be kept out of the interest or income beyond that period.'"

PLEDGES AND PROCEDURE TO FORECLOSE BY ACTION.

Pledges were in constant use under the civil law. They seem to have been in use in England from the time of Glanville, but no judge of the common law courts appears to have given a correct definition of the term until Chief Justice Holt, in deciding Coggs v. Bernard, reviewed nearly the whole law relating to bailments, and in speaking of a pledge, said: "When goods and chattels are delivered to another to be security to him for money borrowed of him by the bailor," the thing deposited is a pledge.1 In a case somewhat later2 Gibbs, C. J., says: "Undoubtedly, as a general proposition, a right of lien gives no right to sell the goods. But where goods are deposited by way of security to indemnify a party against a loss of money, it is more than a pledge. The lender's rights are more extensive than those that occur under an ordinary lien in the way of trade. These goods were deposited to secure a loan. Therefore, the contract was this, 'If I, the borrower, repay the money, you must return the goods, but if I fail to repay it you may use the security I have left with you to repay yourself.' "' In a case in the exchequer court where a party had borrowed a large sum of money giving his own note therefor secured by certain shares of stock and afterwards became bankrupt when the payee sold a sufficient amount of the stock to pay the note, in an action against him by the assignee in bankruptcy it was held that no recovery could be had. It is said, p. 392: "There are three kinds of security; the first, a simple lien; the second, a mortgage passing the property out and

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made, a security for a debt, and the right to the property vests in the pledgee so far as is necessary to secure the debt." And the assignment of an insurance policy on mortgaged premises as further security for the debt is a pledge. But an agreement of a debtor to permit the creditor to take and sell certain property in the possession of a third party and apply the proceeds to the debtor's claim and return the surplus, if any, to the debtor, is merely an executory pledge with power to sell, and where the creditor fails to take possession of the property the agreement has no effect against a subsequent attaching creditor. And as against creditors a pledge of corporate stock must include delivery, and momentary possession of the stock and return of the same to the pledgor are insufficient. And where a debtor authorized his creditor in case of the death of the debtor to take certain policies of insurance from among his papers and hold the same as collateral security for the debt, but nothing to effect such transfer was done during the life of the debtor, it was held that the articles named were not taken in pledge, that the death of the debtor revoked the authority of the creditor to obtain possession of the securities, and as possession of them had not been obtained during the debtor's lifetime, the creditor could not hold them as a pledge." | But where a debtor ordered his agent to set apart certain packages containing oil as se curity for payment of claims of his creditor, it was held that an acceptance in writing of the agent of the creditor transferred the possession of the oil and operated as a pledge for the debt. So where the owner of certain horses agreed with the creditor that he might retain one of the horses as security for the claim for feeding all of them, it was held that the transaction constituted a pledge."1 But the mere intent to pledge property does not constitute a pledge. There must be a delivery to the pledgee. Therefore, where

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company where they never passed from his control there was no pledge of the same to a syndicate of which he was a member, although he may have intended to pledge the same for loans made to the company by the syndicate.1 It is said: "He still held them as president of the company, and they remained under his control. Whatever his intention in regard to a pledge of the bonds it was never effectuated by any action of the owner of them or by delivering them to Marcus, the trustee of the syndicate."'13 While possession of the property is essential to the execution of a pledge, yet the possession may be according to the nature of the thing pledged. And where property is not capable of manual delivery and possession as where certain shares of the stock of a corporation can be transferred only on the books of the institution, a pledge may be created by a written transfer thereof.15 In the last case cited the contract was as follows: "$2,000. I promise to pay to Jacob Little or order two thousand dollars for value received with interest at the rate of seven per cent. per annum, having deposited with them as collateral security with authority to sell the same at the broker's board or at public auction or at private sale at option on the non-performance of this promise without notice on" the pledgor. The court held that although there was a waiver of notice there was no waiver of demand, and that such demand was necessary. It was also held that

although the transfer was absolute in form, yet it did not appear from the whole proof that the object was to secure a loan, and, therefore, the pledgor had a right to redeem.

Sale Under the Trust.-A trustee under a first mortgage afterwards made a second loan to the debtor taking security in certain second mortgage bonds. It was held that the right of the creditor to sell the trust property according to the terms of the pledge was not affected by the commencement of a suit to

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a price proposed by the purchaser, the seller will not be permitted to assert that his consent extended only to such sales as he had a joint interest in with the person named.17 And an action for an accounting will not lie where the pledgor authorizes a sale of the stock at private sale where a short time previously the pledgor had consented to a sale of such stock at the price received.18 It is said, p. 561: "The complainant, Smith, in the notes evidencing the debts for which the stock was pledged as security, had agreed that the holders of the notes might sell the stock at public or private sale without advertising the same, or without demanding payment or giving notice to Smith, and the validity of such contract is recognized in Illinois.19 But if the contract had not been carried out in good faith, the debtor, no doubt, could maintain a suit for an accounting. Delivery to the pledgee of things pledged is essential to create the relation of pledgor and pledgee.20 Some of the reasons are stated in the fourth point of the syllabus of the case cited." The requirement of possession in the pledgee is an inexorable rule of law adopted to prevent fraud and decepThere must be an actual delivery of the chattels as distinguished from a mere promise, and the change of possession must be continuing, not formal, but substantial." The pledgee must take and retain possession of the property as long as he claims the property as pledgee." There must be a delivery either actual or symbolical, as the nature of the goods may require. A mere intent to pledge is not sufficient.28 Thus, an agree

tion.

ment for the sale of steam boilers then in use in a factory which provided that they shall be taken out and delivered by a time stated in the future is not an executed contract, and does not deliver the title to the proposed vendee.24 But where the owner actually delivered property to an agent of certain bonds

17 Smith v. Lee, 84 Fed. Rep. 557.

18. Omith - Loa 94 Wad Don K37

men of the owner with authority to sell the property and apply the proceeds upon the liability of such owner, it was held that the agent thereby becomes a pledgee and acquires a superior right to such property against all persons except those who have valid prior liens. 25 The reasons assigned for requiring the pledgee to receive and retain possession of a pledge are that he has a mere special property in the thing pledged, and does not possess the legal title. His claim, therefore, is stronger, but somewhat analogous to a common law lien which is lost by a surrender of the thing to which the lien attached. At common law a mortgage of chattels is a sale upon condition, and becomes an absolute interest at law if not redeemed at the time fixed for the satisfaction of the claim, and possession is not indispensable to its validity. The general tendency of the courts at the present time is to treat a chattel mortgage as a mere lien, and the property must be sold either upon statutory notice or under a decree to bar the mortgagor's right to redeem. It will thus be seen that the principal difference between a pledge and a chattel mortgage at the present time is, that the mortgagor may be permitted to retain possession of the property until the time of default or sale of the property. There is another ground of difference, viz., if no time is fixed for the redemption of the pledge, and the pledgee makes no demand on the pledgor to redeem, the latter has his whole life in which to redeem.26 A tender of the amount for which the pledgor is liable on the day the debt becomes due, whether it is accepted or not, discharges the lien of the pledge, and revests the title in the pledgor free from the claim of the pledgee." Minnesota case, which is well considered, it is said: "It is a general principle that tender of payment of a debt to secure which personal property has been pledged, discharges the lien, terminating the special property rights of the pledgee. Coggs v.

In the

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