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portion of the same which was libellous might also be false, it
could only therefore be justified upon the ground, that the defend-
ant's privilege extended to the publication of all which passed in
Parliament, and to such comments thereon and such repetition
and amplification of such charges as come fairly within the scope
of an editor and publisher, actuated by the honest and bond fid4



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880 THE BANKRUPT ACT.

purpose of instructing and informing the public in regard to sucli
matters of public concern as he may properly consider that they
have a bond fide interest in correctly understanding, provided he
be actuated solely by the motive of rendering his paper a fair
and faithful instructor in regard to and commentator upon such
matters, and not by any sinister and malicious motive towards
those thereby exposed to opprobrium. This is, indeed, a very
broad shield, a privilege scarcely less than that of the member
of Parliament. But we do not well see how it could be much
narrowed, without restricting it within such limits as to render
the privilege of no avail. It is well, perhaps, that the freedom
of the press should cover all matters of public concern, where the
publisher is actuated solely by a desire correctly to instruct the
public mind, and by no spice of personal malice.

I. F. E.

LoNDOV, December 27th 1867.



THE BANKRUPT ACT. A COMPLIMENT TO AMERICAN
LEGISLATION.

Having been assured that the bankruptcy bill now pending in
the English Parliament, was to a great extent copied from the act
now in force in the United States, we have taken some pains to
authenticate a fact so honorable to American legislation and
reflecting such credit upon the accomplished author of our act,
the Hon. Thos. A. Jenckes, of Rhode Island. The following is
believed to be a correct statement of the facts.

Ever since the passage of Lord Westbury's Act in amendment
of the bankrupt laws, in 1860, efforts have been made each ses-
sion of Parliament, to rid it of some of its cumbrous and expen-
sive features, and to simplify its details, which were found to be
almost as burdensome as the provisions of the previously existing
bankrupt laws. A special committee was appointed to in(juire
into the working of the law, which took considerable testimony
on the subject, and, in 1865, after the first draft of our bankrupt
bill had been made public and had passed the House of Repre-
sentatives, made a partial report recommending amendments to
Lord Westbury's Act. More than three-fourths of these proposed
amendments had already been incorporated into the bill before



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THE BANKRUPT ACT. 831

Congress. That coramitteo expired with the Parliament, but
immediately on the assembling of the new Parliament a new com-
mittee was raised, and at the session in the summer of 1860, after
the bill which has since become the bankrupt law of this country
had passed our House of Representatives, a bill consolidating and
amending all the English bankrupt laws was reported to the House
of Commons by Sir Roundell Palmer and Sir George Grey,
fr.->m the committee, which contained some other provisions similar
to those in our law. That bill fell with the Gladstone ministry,
but the committee was continued, and, in- April 1867, after our
bill had become a law, an entirely new bill was reported to the
House of Commons, and is now pending there, which closely
resembles our law in its structure and in the great majority of its
details, and also in its analysis, method, and language.

Many provisions of our law had been taken from the English
statutes of bankruptcy, with modifications of language, and when
these provisions were retained in the new bill, the new language
of our statute also appears. The most striking point of resem-
blance is in the machinery by which the law is carried into effect.
The English laws are administered by commissioners and regis-
trars, who have fixed places of holding court, and before whom
the proceedings are dilatory and expensive. The simple device
of making the registers in bankruptcy under our law movable,
like a Yankee Probate Court, and requiring them to act without
delay, and to report regularly to the court, and always to be under
control of the court, has made possible the successful practical
working of a bankrupt law in this country. The new English bill
provides for precisely such a system in England. A court of
bankruptcy is established in London in the metropolitan district,
and in the country the county courts are made courts of bank-
ruptcy, just like our district courts, and the registrars of these
courts perform the same functions as our registers. The old com-
missioners and registrars are not removed, for that would require
an indemnification to them by pensions, but they are to perform,
while they live, the same duties as the registrars of the 3ounty
courts, and when they shall all have died out, the system will be
homogeneous like ours. A Court of Appeal in Bankruptcy has
the same powers and jurisdiction as our Circuit Courts. There
has been almost as great a difference between a register's court
of bankruptcy in this country and a commissioner's or registrar's



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332 ENSWORTH r. N. Y. LIFE INS. CO.

court in England as between a Yankee Probate Court and the
Court of Arches, but our simple device has commended itself to
the learned lawyers charged with the preparation of their new
bill.

There are some provisions in the proposed English Act which
are new, and are decided improvements on any other English sys-
tem, but which are not well adapted to the circumstances of this
country. These also seem to be encumbered with a machinery
which must prove dilatory and expensive in operation, and the
bill was recommitted to the committee for modification in these
respects and to report at the session to be held during the present
month (February 1868). It is expected that the bill will then be
brought before the House of Commons by the Attorney-GeneraU
and some explanation of its history and composition may be ex-
pected in his opening speech. J. A. J.



RECENT AMERICAN DECISIONS.

United States Circuit Courts Northern District of Ohio, Jan-
uary Term, 1868.

JEREMIAH ENSAVORTII v. THE NEW YORK LIFE INSURANCE CO.

In a suit brouglit in assumpsit for breach of a contract between an insurance
agent and his insurance company, by which it was agreed that he should receive a
percentage on all renewals of policies procured by him as long as such policies
remain in force : Ueld^ that the action may l>e sustained as upon a contract indivi-
pible, and testimony will be admitted to show the probable expectancy of the dura-
tion of such policies.

An e8tabli>hed custom among insurance companies as to an agent's property in
lists of policies procured by him may be introduced to explain such contract.

The plaintiff brouorht his action in a state court, from which
the defendant, The New York Life Insurance Company, caused
the same to be removed, under the provisions of the Act of 1789,
to the Circuit Court of the United States.

The plaintiff was in 18G1 appointed defendant's agent at Cleve
land, Ohio, and an agreement made by which he was to receive
10 per cent, on first premiums, on policies procured by him, and
5 per cent, on the renewal premiums, as long as such policies
should remain in force. In February 1865, the plaintiff was dis



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ENSWORTH r. N. Y. LIFE INS. CO. 833

missed from the agency, on the ground that he engaged in procur*
ing policies for another company, although there was nothing in
his agreement, or acceptance of the agency, which specifically
forhade his doing this. During his agency he had procured fifty
policies, a majority of which were for the lives of the insured,
and the remainder required premiums to be paid for ten years.
Some had expired by forfeiture, or by the death of the insured.
Upon the termination of the agency the collection of the renewal
premiums was taken away from the plaintiff, against his consent,
and given to his successor. It was shown that the probable
expectancy of the life of the policies so procured would be from
eight to thirteen years; and taking all the contingencies of for-
feitures and deaths into consideration, they would remain in force
an average of at least ten years. Also, that a custom prevailed
among insurance companies and agents, by which agents acquired
a property in lists of policies procured by them.

Plaintiff claimed that the withdrawal of the collection of such
premiums on renewals from him, was a breach of the contract by
which he had suffered damages to the amount of $2837.

Wyman ^ Barlow^ for plaintiff, argued that the damages arising
from the breach of contract are definite and immediate ; are a
subject of mathematical calculation ; that the list of policies pro-
cured by the agent has an intrinsic and market value, and that
his damages in consequence of the breach are recoverable at
once ; and cited 2 Black 590 ; 31 Verm. 582 ; 3 Parsons 189.

F, J. Dickman and S, J". Andrews^ for defendant, claimed
tJie forfeiture by the plaintiff of his right to commissions under
the contract by misconduct ; that the commissions on renewal
premiums to be paid in future, could not be considered in measur-
ing damages ; and that actions must be brought yearly for the
future commissions.

Sherman, J., after reciting the contract, and instructing as to
the gouei al weighing of testimony, charged the jury : — That if an
agent should grossly misconduct himself in the course of his
agency, and should prove unfaithful to his trust, he would forfeit
his claim to his compensation or commission — but his misconduct
and infidelity must be gross and aggravated before such conse-
quences would follow : ordinary or slight misconduct would not



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aS4 ENSWORTH r. N. Y. LIFE INS. CO.

work a forfeiture of his commissions, although it might be a good
cause for a revocation of his agency.

In this case the contract is claimed by the plaintiff to be an
entire contract, and that there may be an entire breach ; that the
damages can be readily ascertained from well-known principles
derived from long-used life tables. On the other side, it is
claimed to be a divisible contract, and that the breach can be
severed into several parts ; I know of no general rule of law that
would absolutely and definitely determine into which class this
particular case would fall, nor can any adjudicated case, similar
in all respects to this, be found. If any existed, it would un-
doubtedly have been found by the learning and research of the
counsel. This contract may be said to be a continuing contract ;
but whether it is an entire or divisible contract depends upon its
terms. When a contract is made for the building of a house, and
a party refuses to fulfil, it may be considered an entire contract ;
and one refusal may properly be treated as an absolute breach,
and one suit may cover all the damages. On the other hand, a
contract to deliver the crops of a farm for several successive
years is one capable of division, and several actions may be
brought each year for the refusal to deliver the crops.

Again, it has been held and decided, that a continuing contract
to pay a sura of money by instalments, or the hire of a laborer
by the month for a whole year, is a divisible contract, and may
be sued on from month to month, or when the instalments become
due and payable. On the other hand, it is well settled that a
contract to board, clothe, and support old people during their
lives, is one entire contract ; and one suit may be brought for the
whole damages sustained by a breach. The principle deduced
from these cases is, that if a contract is formed of parts which
are so far inseparable, that if any one is taken away there is a
completed and final breach, then all must be included in the dam-
ages ; but if the contract is such that it can be separated and
divided into one or more distinct and separate breaches, then an
action will lie and damages be had for those breaches.

If it be found from the evidence that this contract contemplated
that the plaintiff should have the absolute right and ownership ia
the policies obtained by him, to the extent of five per centum on
their renewals during the life of them, and that this right became
fixed at the moment and could not be divided from other duties



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ENSWORTH V. N. Y. LIFE INS. CO.



83/>



And other matters ; then it is one entire contract, and you must
find and fix his damages from the evidence given as to the value
of such an interest in the policies. But if the contract contem-
plated that he was entitled to the commissions on the premiums,
only as the policies were renewed from year to year and the pre-
miums paid to the life insurance company, then the contract is
divisible, and he can only sue and recover damages after those
premiums for renewals are paid in. In this case the plaintiff
would be entitled to recover the amount of the commissions on the
renewals only down to the day on which he brought his suit.

In this connection, it may be said that a well-established custom
among life insurance companies and their agents, as to the kind
and extent of property that agents may possess in the lists of poli-
cies they procure, may be considered as explaining the contract
as claimed, because the parties are presumed to make the contract
in reference to that custom.

The verdict rendered was for the plaintiff, damages $1000,
which was the full value of the commissions on the ren&wal pre-
miums to become due during their estimated prob&bV^ lifetime,
after deducting the costs of collection.



The business of life insurance has
within a few years past assumed such
surprising dimensions, and the cuftoro
of compensatinp agents bv commissions
on the premiums obtained has become so
general, that the foregoing, although
only a nisi prius cn^e, will be rcceired
with interest by the profession as one of
first impression, but quite likely to arise
frequently hereafter.

A similar state of facts existed in the
case of Macheite v. Netc England Mutual
Life Ins, Co., reported in the Philadel-
phia I^gal Intelligencer for May 3d,
1867, though the questions raised were
different. In that case the plaintilf
Machette claimed to have a contract as
agent of the defendant company for a
certain percentage on original and re-
newal premiums, and also that he was
" to have the right to collect every such
renewal premium, and remit the same to
the company, after deducting the siiid



compensation.'* The defendant com-
pany sent notices to policy holders whose
insurance had been procured by plnintitT,
that he was no longer an agent of the
company, and requiring future renewal
premiums to be paid to another person,
whereupon plaintiff filed a bill in equity
in the Court of Common Pleas of Phila-
delphia to enjoin the defendants ** from
interfering with the complainant in col-
lecting the renewal premiums until ade-
quate security is given for the commis-
sions to which complainant is entitled."
An answer was put in by defendants,
denying substantially all the equities of
the plaimiflf's bill, and the injunction
was therefore refused ; but the court
went further, and expressed its opinion
that even on the plaintiff's own case, hi«
right to commissions, and his authority
to collect the premiums, were distinct
and independent priviJeges, and thai
while the company could do no art to



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336 MORRISON V. MARQUARDT.

deprive him of his ripht to the former, briefly, with special reference to em-
yet tliey niijjht revoke hi8 authority for ployees discharged before the end of the
ilic hitter. term for which engaged, in the note to
The subject of entire and divisible Huntington v. Railroad Co.^ ante p. 147
co'itracts, treated somewhat in the prin- J. T. M.
cipal case, will be found discussed



Supreme Court of Iowa.

MORRISON AND STARTSMAN v. MARQUARDT ET AL.

There may be a dedication of land to public use by parol ; but the intent to
dedicate shouhl in such case be clearly shown.

The sufficiency of evidence to establish a dedication discussed.

The Kngli!.h doctrine that there may be a grant of light and air bt/ implication
is not applionble to the situation and condition of this country. Per Dillon. C. J.

Tlic Knglish rule is this: If a man sells a house with windows and doors
opening on to his vacant ground, neither he nor his grantee can afterwards build
upon such vacant ground so as to obstruct the riow of light and air without express
reservation of the right to do SO : Helil^ that if such a rule should be recognised in
this country, it should be applied only in cases where the circumstances make it
clcnr that such must have been the intention of the parties.

The nature of the conveyances to the plaintiffs ; the character of the buildings
showing them not to be essentially dependent on the rear windows for light ; the
ii.iturc and effect of previous alienations of adjacent property by the common ven-
ilur ; the express provision of a four-feet right of way in the rear of the plaintiffs*
tenements, were held to be circumstances sufficient to negative any implied ease-
ment of light anil air over a<ljacent land retained by the vendor of the plaintifll^.

It is settled law that there is no impiieil rettervation of a right to light and air.
So that if one sells vacant land and retains the house adjoining, the purchaser of
the vacant land may build thereon, though he darken thereby the windows of the
hou«c of his vendor

r'The owner of the servient estate cannot by the unlawful destruction of an
easement extinguish the right of the owner of the dominant estate thereto ; and the
latter owner may, in proper cases, have relief in equity, and not be driven to an
action for damages.

Cross appeals from Johnson District Court.

The plaintiifs, Morrison and Startsman, severally own two
brick stores in Iowa City fronting north on Washington street.
k>tartsman purchased the ground on which he erected his store
of the defendant Robinson, there being on it at the time an old
i'rame building. Morrison purchased his present store also of
Robinson. These stores are described in the opinion. Robin-
ion m his conveyances to the plaintiifs expressly granted to each
of them a right of way four feet in width. This way was located



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MORRISON V. MARQUARDT. 837

just in the roar of and adjoining the premises conveyed to the
plaintiffs. Robinson also granted to the plaintiffs the right to use
a privy which adjoined this right of way, but was situate upon
vacant land then owned by Robinson, but afterwards, and quite
recently conveyed to the defendant, Marquardt. Robinson sold
to the plaintiff Startsman first. He afterwards conveyed to the
defendant, Marquardt, a store, fronting west on Clinton street,
the rear of which was near to the rear of the store now owned by w
Morrison.

After the first conveyance to Marquardt, Rob.inson conveyed
to the plaintiff Morrison, still retaining vacant ground in the rear
of all of these stores, and south of the four feet right of way.
This vacant ground (being the same on which the privy before
referred to was situated) he afterwards sold and conveyed to the
defendant. Shepherd and Hess owned the ground on the east
of that which formerly belonged to Robinson.

After his purchase of this vacant ground, Marquardt, claiming
that the privy vault was filled, and the structure itself a nuisance,
removed the same, and commenced preparations to extend his
store eastward, and clear across the open ground and over the
site of the privy, up to the walls of the store of Shepherd and
Hess.

If the proposed building should be erected it would be within
four feet of the rear windows of the plaintiff's stores — being sepa-
rated therefrom only by the above-mentioned four feet right of
way.

Whereupon plaintiffs, Morrison and Startsman, filed this bill in
equity.

Fairall ^ Boal and Edmonds ^ Ransom^ for plaintiffs,
claimed, 1st. That Robinson dedicated the ground east of the
stores fronting on Clinton street and south of the plaintiffs' stores,
viz., the vacant ground on which Marquardt now proposes to
build, as a court, area, or space to be permanently left and kept
open for the use and convenience of said stores.

2<l. That when Robinson sold plaintiffs the said property they
became by necessity or implication entitled to an easement of
light and air, and that this easement will be destroyed by the
erection oi the proposed addition to his building by the defendant,
Marquardt.

Vol. XVI.— 22



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338 MORRISON V. MARQUARDT.

3d. That they had an easement in the privy ; and that Mar
quardt had no right to remove or destroy the building.

Plaintiffs prayed an injunction to defendants from building on
the open area aforesaid or any part thereof; and that plaintiffs be
entitled to have erected and maintained at the expense and costs
of said Robinson said privy so removed as aforesaid.

TF". Penn Clarke and A, W. Gaston^ for defendants.

The answer denied any dedication of the open area ; admitted
the removal of the privy, and claimed that it was a nuisance and
the vault full ; also admitted that Marquardt did propose to extend
his store two or three stories in height^ east^ but not so as to
interfere with the four feet right of way south of plaintiffs' pre-
mises ; and denied that the proposed erection would substantially
interfere with the comfortable or reasonable enjoyment of the
plaintiffs' stores as respects air and light.

The cause was referred to a referee whose report was in favor
of allowing the defendant to erect a building in the rear of plain-
tiffs' premises one story in height.

A decree was entered accordingly. Both parties appeal.

Plaintiffs claim that Marquardt should have been restrained
from erecting any building whatever in the rear of their stores.
On the other hand, Marquardt claims that the injunction should
have been dissolved and that he should have been allowed to
build without ani/ restriction as to height. The other questions
made appear in the opinion.

Dillon, C. J. — The main principles involved in this cause have
never been judicially settled in this state. They are principles
of no ordinary importance. The adjudications elsewhere upon
the same or similar questions are not uniform. This court is
charged with the duty of deciding, which is the better, or what is
the true rule in cases of this character.

Before proceeding further it should be observed that the testi-
mony is voluminous and upon some points conflicting. So far a^
tTie case involves questions of fact merely, it is not proposed to
enter into an extended review of the evidence.

So far as it involves questions of law and principles applicable



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MORRISON V, MARQUARDT. 839

to future cases, a more extended examination is not only proper,
but is required, both by the importance of the cause itself and
the conspicuous ability with which it has been argued by the
respective counsel.

It should be further remarked that the defendant admits the
existence of the four feet right of way immediately south of the
plaintiffs' premises, and claims no right to build thereon ; but
admits that he proposes to build up to the line thereof.

I. As to the alleged dedication. — Plaintiffs insist that the pro-
perty on which the defendant now proposes to build, was dedi-
cated by Robinson as an open area for access to the various stores,
as a place whereon to deposit barrels, boxes, &c., and to supply
the rear of the stores with light and air. It is claimed also that
the defendant knew of this dedication prior to his recent purchase
of this vacant ground.

No map or plat showing, and no writing expressing such dedi-
cation was ever made.

But plaintiffs contend that there may be a dedication by parol,
and that the present is a case of that character.

That there may be a dedication to ptiilic use without a deed or
other written evidence, is undoubtedly true. But in such cases
the intent to dedicate should be clear, and the acts or circum-
stances relied on to establish such intention unequivocal and con-
vincing.

The present case does not meet this requirement. The plain
tiffs testify that as an inducement to the purchase of their
respective parcels, Robinson stated to them that the area should
remain open to the use of all of the stores around it, the same as



Online LibraryAndrew PritchardThe American law register, Volume 7 → online text (page 36 of 93)