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tified to the truth. It seems, looking at the rec. purely a judicial question, to be considered subord alone, that there is room for a different con stantially the same as that of whether the legisclusion. But there are many cases in the books lature has exceeded its constitutional authority, where it bas been held that the mere act of vot reasonable doubts being resolved in favor of mu. ing at a particular place is not conclusive on the nicipal power. Clason v. City of Milwaukee, 30 question of residence. Many well-considered | Wis. 316; Barling v. West, 29 Wis. 307; Hayes y. cases of that kind are cited to our attention in the City of Appleton, 24 Wis. 542; 17 Am. & Eng. brief of counsel for respondents. Robinson v. Enc. Law (1st Ed.), p. 246, and cases cited; 1 Charleton, 104 Iowa, 296, 73 N. W. Rep. 616; | Beach, Pub. Corp. $$ 319, 320, 327; Elliott, Dennis v. Bank, 19 Neb. 675, 28 N. W. Rep. 512; Roads & St. $ 187. Many cases will be found Mallard v. Bank, 40 Neb. 784, 59 N. W. Rep. 511; within the field covered by the above citations Corey v. Schuster, 44 Neb. 269, 62 N. W. Rep. which in principle condemn an ordinance requir: 470; Campbell v. Potier (Ky.), 29 S. W. Rep. 139. | ing a bell on a street car to be continuously In the last case cited tbe Kentucky court said: sounded while the car is in motion upon a street. *This court bas beld that tbe homestead right is In North Chicago City Ry. Co. v. Town of Lake never forfeited when there has been an occu View, 105 Ill. 207, an ordinance prohibiting the pancy and then a temporary removal with the use of a steam motor on street cars was held void. intent to return and make the premises a home. In Van Vorst v. Mayor, etc., 27 N. J. Law, 497, Appellants endeavored to show that the appellee an ordinance probibiting a railroad train from abandoned all purpose to return to the property obstructing a street more than two minutes at a and that his residence had been permanently time was so beld. In Delaware, L. & W. R. Co. located elsewbere by proving that he registered v. Township of East Orange, 41 N. J. Law, 127, and voted in wards in Bowling Green other than an ordinance compelling the maintenance of flagthe one in which his home was situated. The men at grade crossings was likewise held void. proof shows that he did this. This act is not con In Hayes v. City of Appleton, this court, speakclusive of the question, but is merely a fact, in ing by Dixon, C. J., said: "The power of a comconnection with the other facts proven, to aid the mon council therefore extends only to the making court in determining whether tbe removal of the of regulations for the good of the State. They appellee from the premises was permanent or must be such as only prudence and reason retemporary.'”
quire, not unreasonably prejudicial to private MUNICIPAL ORDINANCE – MUST BE REASON
rights and interests.' Who can say that pruABLE.-Municipalities are not supreme in legis
dence and reason require that a bell shall be conlative power, and to that rule the city of Eau Claire,
tinuously sounded on a street car while it is in Wisconsin, is indebted for wiping off an ordi
motion upon the street? No one, we venture to nance requiring the continuous ringing of a bell
say, who applies ordinary reason to matters of on street cars while in motion, and rendering
common knowledge. Common sense suggests tbem guilty of negligence per se in failing to do
that instead of operating to protect persons travso. It is difficult to understand how a municipal
eling upon the street it would have the opposite assembly even of school boys, could have been
effect. It would tend to alarm borses not familiar guilty of the lack of common sense which the
with it; and persons would naturally become so 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 elec
attract attention. Without continuing the discustric car sball keep his gong going continually
sion, we venture to say that no good reason can while his car is in motion is not only ludicrous
be assigned for such a regulation in the operaand impossible, but absolutely unnecessary. In
tion of street railroads. The ground of the docthe case of Stafford v. Chippewa Valley Electric
trine that tbe violation of an ordinance designed Railway Company, 85 N. W. Rep. 1036, the Su
to promote the safety of individuals is negligence preme Court of Wisconsin held that the violation
per se, is that it is a reasonable regulation to that of such an ordinance would not render a street
end. Smith v. Traders' Excbange, 91 Wis. 360, railway company guilty of negligence per se in
64 N. W. Rep. 1041, 30 L. R. A. 504. Hence it a crossing aecident, even though the ordinance
goes almost without saying that whether the viois a condition in the grant of a franchise to the
lation of a regulation wbich is part of a granted
franchise constitutes actionable negligence must company, since the condition is unreasonable. Tbe court's opinion is clear on this point:
turn on the same principle.". "It is elementary that the power of the city council to enact ordinances is not unlimited. It LIFE INSURANCE-MISSTATEMENTS AND CONmay go, within the field delegated to it by the CEALMENTS IN THE APPLICATION. — Statutes State legislature, to the boundaries of reason. in many of the States require applications for Within such field its discretionary power is su. life insurance to be made in the utmost good preme, but it cannot legitimately go beyond. If faith and declare that representations are conit does, in so farits enactments are void. Whether, sidered as covenanted to be true, and that a varin any given case where tbe facts are undisputed, iation by which the nature, extent or character a city council bas exceeded its power by the l of the risk is changed will void the policy. The enactment of an unreasonable ordinance, is United States Circuit Court of Appeals bas just passed upon facts arising under such a statute in statute, and probably without the statute, conthe case of Fidelity Mutual Life Association v. cealment means “willful concealinent.' ConJeffords, 107 Fed. Rep. 402. Under such a stat struing a life policy, Mr. Justice Harlan asked ute, containing a further provision that failure what was meant by true and untrue answers, and to state a material fact, if not done fraudulently, he answered the question, saying: 'In one does not avoid this policy, it was held that an sense, that only is true which is confirmable to untrue statement by the insured that he did not the actual state of things. In that sepse, a statehave consumption, or his omission to name, ment is untrue which does not express things when requested, all physicians who examined exactly as they are. But, in another and broader him within a specified time, would not avoid his sense, the word "true" is often used as a synonym policy, if his answers were made in good faith, of “honest," "sincere," "pot fraudulent." Look and the misstatement or omission was not willful, ing at all the clauses of the application, in conbut due solely to bis ignorance or failure to nection with the policy, it is reasonably clearrecollect, notwithstanding, he distinctly certified certainly the contrary cannot be confidently asthat his answers were true, and agreed that, if serted—that wbat the company required of the any concealment or untrue statement or answer applicant, as a condition precedent to any bindbe made, the policy should be void. The court
ing contract, was that he would observe the utsaid:
most good faith towards it, and make full, direct, "It may be stated as a general rule that and honest answers to all questions, without evaanswers to questions propounded to insured in sion or fraud, and without suppression, misrepan application for insurance, unless they are resentation, or concealment of facts with which clearly shown by the form of the contract to have the company ought to be made acquainted, and been intended by both parties to be warranties to that by so doing, and only by so doing, would be be strictly and literally complied with, are to be be deemed to have made "fair and true answers." construed as representations and not as warrant Moulor v. Insurance Co., 111 U. S. 335, 345, 4 ies. Insurance Co. v. Raddin, 120 U. S. 183, 7 | Sup. Ct. Rep. 466, 28 L. Ed. 447." Sup. Ct. Rep. 500, 30 L. Ed. 644. One of the statements tbat the insured was required to make to WILLS-RENTS AND PROFITS ACCRUING AFTER obtain the insurance was that he was free from
TESTATOR'S DEATH.-In the Case of Cole y. Ed. any and all disease,' except as stated. Placing wards, 62 S. W. Rep. 642, the Supreme Court of the construction upon the application which tbe Tennessee decided an interesting point of law plaintiff in error contends for, the policy would relating to the rights of the residuary devisees be made void if the insured had a disease mater to the rents and profits accruing after the tesial to the risk, although he was entirely ignor.
tator's death and before the vesting of the estate ant of the fact. It might be a disease so unde
in them. In that case it was held that where a veloped that it could not be discovered by an will directed that the residue of testator's propexpert physician, and yet if it afterwards de. erty remaining after payment of stipulated veloped, and it could be shown that the germs of amounts should be divided into equal shares, and the disease were active in the insured at the date each share conveyed in trust for testator's of his application, the policy would be made children, who should receive the rents and void. We cannot believe that this contract is profits for life, the rents and profits accruing fairly susceptible to such construction. Such & after testator's death, and before the conveyance construction ought to be avoided unless clearly to trustees, should not be added to the corpus, demanded by legal rules. In the absenoe of ex but such life tenants were entitled to receive plicit and unequivocal words requiring such in such rents and profits, except those for the first terpretation, the court should not conclude that year. We quote the following from the opinion: the insured took a life policy with the distinct "The next assignments in logical order are understanding that it should be void, and all the third and fourth assignments, filed by Mrs. premiums paid forfeited, if at the time of his ap Edwards and Mrs. Benson. These present the plication he had a disease of which he was en contention that the net rents, profits, and intertirely unconscious. Moulor v. Insurance Co., 111 est arising upon that portion of the funds and U.S. 335, 4 Sup. Ct. Rep. 466, 28 L. Ed. 447. We assets of the estate which are the subject of the do not think that it was the purpose of the in several life estates, and accruing between the surers to exact from the insured, as a condition death of the testator, and the conveyance to the precedent to a valid contract of insurance, a trustees provided in item 17 of the will, do not guaranty against the existence of diseases of go into the corpus of the several trusts, but bewhich he had no knowledge, and which even a long to the life tenants. The question is one tbat skillful specialist, on careful examination, would arises between the life tenants and the remaindbe unable to detect. We are not unmindful of ermen. The rule is that the life tenant is enthe fact that the insured distinctly certifies that titled to all the interest, rents, and profits aristhe statements in his application are true, anding on the property which is the subject of the that he agrees that, if any concealment or untrue life estate. Pritchitt v. Trust Co., 96 Tenn. 472, statement or answer be made, the policy of in. 477, 36 S. W. Rep. 1064, 33 L. R. A. 856; In re surance shall be void. Referring to the Georgia Turner, 101 Tenn. 701, 50 S. W. Rep. 757; For
sey v. Luton, 2 Head, 184; Hunt v. Watkins, 1, investment is made,-either within the year or at Humph. 498, 506. In a well-considered case the the expiration of that time. But, as a year is court of errors and appeals of New Jersey, said: | considered a reasonable time for the executor to There is another class of cases which are ap comply with the testator's directions as to the parently exceptions to this general rule (that conversion or investment, the legatee for life legacies do not bear interest until the expiration cannot be kept out of the interest or income beof one year from the testator's death); but these yond that period.'” 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
PLEDGES AND PROCEDURE TO FOREof some aliquot part or proportion thereof, in
CLOSE BY ACTION. trust to pay the interest or income to a legatee for life, with a gift of the principal over at his | Pledges were in constant use under the death, the interest or income payable to the life civil law. They seem to have been in use in tenant will be computed from the testator's
'England from the time of Glanville, but no death. Green v. Green, 30 N. J. Eq. 456; Same
judge of the common law courts appears to V. Blackwell, 32 N. J. Eq. 768; Van Blarcom v. Dager, 31 N. J. Eq. 783; 2 Spence, Eq. Jur.
have given a correct definition of the term 552-569; Howe v. Earl of Dartmouth, 7 Ves. 137, until Chief Justice Holt, in deciding Coggs and the notes to that case in 2 White & T. Lead. v. Bernard, reviewed nearly the whole law Cas. Eq. 486. Cases of this class are disting
relating to bailments, and in speaking of a uished from legacies of a definite sum with re
pledge, said: “When goods and chattels are mainder over, with respect to the computation of interest to the life tenant. 2 Williams, Ex'rs.
delivered to another to be security to him 1301; Fearns y. Young, 9 Ves. 549, per Lord for money borrowed of him by the bailor,'' Eldon; Baker v. Baker, 6 H. L. Cas. 623, per the thing deposited is a pledge.' In case Lord Chelmsford; Vap Blarcom v. Dager, 31 N. somewhat later? Gibbs, C. J., says: “UnJ. Eq. 783, per Dood, J. In the case last cited
doubtedly, as a general proposition, a right the computation from the testator's death of interest or income to the life tenant, wbere the gift
of lien gives no right to sell the goods. But is of the residue, is placed on a special equity as where goods are deposited by way of security between the parties who are to participate in the to indemnify a party against a loss of money, gift, arising from the injustice that would be it is more than a pledge. The lender's done to the life tenant by the addition of the en
rights are more extensive than those that octire interest to the capital. 2 Rop. Leg. 1320.'
cur under an ordinary lien in the way of Welsb v. Brown, 43 N. J. Law, 37, 41. See, also, Rodman v. Fincke, 68 N. Y. 239; Marsh v. Tay trade. These goods were deposited to lor (N. J. Ch.), 10 Atl. Rep. 486; Green v. Green, secure a loan. Therefore, the contract 30 N. J. Eq. 456; Same v. Blackwell, 32 N. J. was tbis, 'If I, the borrower, repay the Eq. 773. In Williamson y. Williamson, 6 Paige,
money, you must return the goods, but if I 298, 304, 305. After a full examinalion of the authorities, Chancellor Walworth, said:
fail to repay it you may use the security I
"The result of the English cases appears to bemand
have left with you to repay yourself.'»3 In I have not been able to find any in this country
a case in the exchequer court* where a party establishing a different principle-that in the had borrowed a large sum of money giving bequest of a life estate in a residuary fund, and his own note therefor secured by certain where no time is prescribed in the will for the
shares of stock and afterwards became bankcommencement of the interest or the enjoyment of the use or income of such residue, the legatee
rupt when the payee sold a sufficient amount for life is entitled to the interest or income of the of the stock to pay the note, in an action clear residue, as afterwards ascertained, to be against him by the assignee in bankruptcy it computed from the time of the death of the tes was held that no recovery could be had. It tator. All the cases which appear to conflict
is said, p. 392: “There are three kinds of with this rule, except the two decided by Sir Joba Leach, which are no longer to be consid.
security ; the first, a simple lien; the second, ered as authority, will be found to be cases in a mortgage passing the property out and which the testator bad directed one species of out; and the third, a security intermediate property to be converted into another, or the between a lien and a mortgage, viz., a pledge residuary fund to be invested in a particular
whereby a contract, a deposit of goods is · manner, and bad then given a life estate in the fund as thus converted or invested. In such cases it appears to be consistent with the will of
12 Ld. Raym. 909. the testator to consider the life interest as com
2 Pothonier v. Dawson, 1 Holt, 385. mencing when the conversion takes place and the
3 Halliday v. Holgate, 3 Exch. 299.
made, a security for a debt, and the right to company where they never passed from his the property vests in the pledgee so far as is control there was no pledge of the same to a necessary to secure the debt.” And the as syndicate of which he was a member, alsignment of an insurance policy on mort though he may have intended to pledge the gaged premises as further security for the same for loans made to the company by the debt is a pledge. But an agreement of a syndicate. It is said: “He still beld them debtor to permit the creditor to take and sell as president of the company, and they recertain property in the possession of a third mained under his control. Whatever his inparty and apply the proceeds to the debtor's tention in regard to a pledge of the bonds it claim and return the surplus, if any, to the was never effectuated by any action of the debtor, is merely an executory pledge with owner of them or by delivering them to Marpower to sell, and where the creditor fails to cus, the trustee of the syndicate."]3 While take possession of the property the agree-' possession of the property is essential to the ment has no effect against a subsequent at execution of a pledge, yet the possession taching creditor. And as against creditors | may be according to the nature of the thing a pledge of corporate stock must include de. pledged.14 And where property is not caplivery, and momentary possession of the stock able of manual delivery and possession as and return of the same to the pledgor are where certain sbares of the stock of a corpoinsufficient. And where a debtor author- ration can be transferred only on the books ized his creditor in case of the death of the of the institution, a pledge may be created debtor to take certain policies of insurance by a written transfer thereof. In the last from among his papers and hold the same as case cited the contract was as follows: collateral security for the debt, but nothing “$2,000. I promise to pay to Jacob Little to effect such transfer was done during the or order two thousand dollars for value relife of the debtor, it was held that the arti. ceived with interest at the rate of seven per cles named were not taken in pledge,8 that cent. per annum, having deposited with them the death of the debtor revoked the author. as collateral security with authority to sell ity of the creditor to obtain possession of the the same at the broker's board or at public securities, and as possession of them bad not auction or at private sale at option on the been obtained during the debtor's lifetime, non-performance of this promise without nothe creditor could not hold them as a pledge.' tice on” the pledgor. The court held that But where a debtor ordered his agent to set although there was a waiver of notice there apart certain packages containing oil as se was no waiver of demand, and that such decurity for payment of claims of his creditor, mand was necessary. It was also held that it was held that an acceptance in writing of although the transfer was absolute in form, the agent of the creditor transferred the pos- | yet it did not appear from the whole proof session of the oil and operated as a pledge that the object was to secure a loan, and, for the debt. So where the owner of cer therefore, the pledgor had a right to redeem. tain horses agreed with the creditor that he | Sale Under the Trust.— A trustee under a might retain one of the horses as security for first mortgage afterwards made a second the claim for feeding all of them, it was held | loan to the debtor taking security in certain that the transaction constituted a pledge. 11 second mortgage bonds. It was held that the But the mere intent to pledge property does right of the creditor to sell the trust property not constitute a pledge. There must be a according to the terms of the pledge was not delivery to the pledgee. Therefore, where affected by the commencement of a suit to bonds were held by the president of a railroad foreclose the first mortgage.16 So where a a price proposed by the purchaser, the seller men of the owner with authority to sell the will not be permitted to assert that his con property and apply the proceeds upon the sent extended only to such sales as he had a liability of such owner, it was held that the joint interest in with the person named.17 agent thereby becomes a pledgee and acAnd an action for an accounting will not lie quires a superior right to such property where the pledgor authorizes a sale of tbe against all persons except those who have stock at private sale where a short time pre valid prior liens.25 The reasons assigned for viously the pledgor had consented to a sale requiring the pledgee to receive and retain of such stock at the price received.18 It is
pledgor of stock in a corporation consented 5 Savings Bank v. Middlekauff, 45 Pac. Rep. 840.
to a sale of a part of it to a person named at 6 Rowell v. Claggett, 41 Atl. Rep. 173.
7 McFall v. Buckeye, etc. Assn., 55 Pac. Rep. 253; 12 Hook v. Ayres, 26 C. C. A. 287. George v. Prince, 55 Id. 775.
18 Id. 290. 8 Heilbron v. Guarantee L. & T. Co., 43 Pac. Rep. 14 Wilson v. Little, 2 N. Y. 443; Allen v. Dykers, 3 932.
Hill, 593; Dykers v. Allen, 7 Id. 497. 91d.
18 Wilson v. Little, 2 N. Y. 443. 10 First Nat. Bank v. Harkness, 21 S. E. Rep. 548. 16 Guaranty Trust Co. v. Galveston, 87 Fed. Rep. 11 Megular v. Thomas, 42 S. W. Rep. 846.
possession of a pledge are that he bas a mere said, p. 561: “The complainant, Smith, in special property in the thing pledged, and the notes evidencing the debts for which the does not possess the legal title. His claim, stock was pledged as security, bad agreed therefore, is stronger, but somewhat analthat the holders of the notes might sell the logous to a common law lien which is lost by stock at public or private sale without ad. a surrender of the thing to which the lien vertising the same, or without demanding attached. At common law a mortgage of payment or giving notice to Smith, and the chattels is a sale upon condition, and bevalidity of such contract is recognized in Il comes an absolute interest at law if not relinois.9 But if the contract bad not been deemed at the time fixed for the satisfaction carried out in good faith, the debtor, no of the claim, and possession is not indispendoubt, could maintain a suit for an account sable to its validity. The general tendency ing. Delivery to the pledgee of things of the courts at the present time is to treat & pledged is essential to create the relation of chattel mortgage as a mere lien, and the pledgor and pledgee.20 Some of the reasons property must be sold either upon statutory are stated in the fourth point of the syllabus potice or under a decree to bar the mort. of the case cited.” The requirement of pos gagor's rigbt to redeem. It will thus be session in the pledgee is an inexorable rule seen that the principal difference between a of law adopted to prevent fraud and decep pledge and a chattel mortgage at the present tion. There must be an actual delivery of time is, that the mortgagor may be permitted the chattels as distinguished from a mere to retain possession of the property until the promise, and the change of possession must time of default or sale of the property. There be continuing, not formal, but substantial.21 is another ground of difference, viz., if no The pledgee must take and retain possession time is fixed for the redemption of the plerige, of the property as long as he claims the prop
and the pledgee makes no demand on the erty as pledgee. 22 There must be a delivery pledgor to redeem, the latter bas bis whole either actual or symbolical, as the nature of life in which to redeem.26 A tender of tbe the goods may require. A mere intent to amount for which the pledgor is liable on the pledge is not sufficient.23 Thus, an agree day the debt becomes due, whether it is acment for the sale of steam boilers then in use cepted or not, discharges the lien of the in a factory which provided ibat they shall pledge, and revests the title in the pledgor be taken out and delivered by a time stated
free from the claim of the pledgee.?? In the in the future is not an executed contract, Minnesota case, which is well considered, it and does not deliver the title to the proposed is said: “It is a general principle that tenvendee.24 But wbere the owner actually de der of payment of a debt to secure which livered property to an agent of certain bonds personal property has been pledged, dis
charges the lien, terminating the special 17 Smith v. Lee, 84 Fed. Rep. 557.
property rights of the pledgee. Coggs v. 18 Smith v, Lee, 84 Fed. Rep. 567. 19 Cushman v. Hayes, 46 II]. 145; Trust Co. v. Rig
Bernard, 2 Ld. Raym 909.917; Ratcliffe v. don, 93 Id. 458; Zimpleman v. Veeder, 98 Id. 513. Davies, Cro. Jac. 244 ; Hancock v. Ins. Co., 20 Maboney v. Hale, 69 N. W. Rep 334.
114 Mass. 155; Hathaway v. Bank, 131 91 First Nat. Bank v. Kelly, 57 N. Y. 34; Van Cise v.
Mass. 14; Ball v. Stanley, 5 Yerg. 199 (165); Mercbants' Bank, 33 N. W. Rep. 897.
Langdon v. Buel, 9 Wend. 80; Seymour v. Col. burn, 43 Wis. 67.
25 Lewis v. Dillon, 22 C. C. A. 489, 81 Fed. Rep. 439. 23 Cunningham Iron Co. v. Warren, 80 Fed. Rep. 26 Kent, Com. vol. 4, 138. 978; Hook v. Ayres, 80 Fud. Rep. 978.
27 Norton v. Baxter, 41 Minn. 146, 42 N. W. Rep. | 865.