cases is that when there is authority to make the contrket, but some irregularity has occurred in its provision for payment or any other ir· regularity, which does nottnrnupon the;'power'to.make it, lmd a corporation has received the iOOnefit of work done, it mlly be oompelled to pay for it; but, when c(mtract is absolutely and directly prohibited by some .statutory or constitutional enactment,. the contract is void, and it cannot be enforced either as an express or implied contract; and so it must now be held of the one in question. Defendant's counsel, in their ,brief, say that 'fthe bridges remain, as they' have always been, the property of plaintiff." With that view the eourtagrees,' and now' so holds. Certainly, this conclusion is a hardship lipan plaintiff, which the court regrets, for it appears that the bridges were honestly constructed, and at a fair price; plaintiff says, below cost. While courts prefer enforcing contracts when honestly made and oomplied with, and to require all parties to pay for what they have the benefit of, yet they cannot and· shbuld notdiSl'egard snch positive constitutional prohibitions as warned the,parties in this case against the consummation of this contract. Unfortunately, there.is so much ardor in the commercial world to transact business that the heed 'which shoUld be given the law is obscured by theenticing profits of a business transaction; Important constitutional provisions ,for the protection of the people--and there is none, upon the statute books of Idaho more important than the one in question-must be enforced,and those who are so heedless as to violate them 'must bear the quences. Judgment for defendant.
et a1. January 15, 1898.)
(CIrcuit Court; S.D. New York.
The statute of New York, provIding that lando! heIrs and devIsees may be takell in payment of (lebts of the ancestor or testator, gives a remedy only; . the cause of action Is founded on the obligation' of the, ancestor ,or testator to pay the debt;' and' the statute of 1imitations Is avaIlable tQ the 'hE:ir only as it would have been to the ancestor. . I.
SUBJECTING HEIR'S REAL ESTATE TO PAYMENT OF A:NCEBTOR'S DEBT-PROOF OF" T NSUFFIOIEN,TPltRSONAI.TY.
OF ACTIONS-REMEDY AND CAUSE OF ACTION-LIABILITY FOR ANCESTOR'S DEBT.
Where the evidence is such as to leave no reasonabll! doubt that there no personal assets of the ancestor for thepaYll1ent of Il. debt, the real estate In the hands of the heir will be subjected to its payment. '
LIABILITY OF THE HEIR OF AN HEIR FOR DEBTS OF THE ANCESTOR-ABSENCE OF STATUTORY PROVISION. "
Since at common law the heir of an heIr would be liable, to the extent of real received by him, for a specIalty made by the ancestor, and expressed to be binding on heirS, notwithstanding such liability is not expressly created by the Statute of New York, which provides that the lands of heIrs or, devIsees can be taken in payment of debts of the' ancestor or testator, it will be to eXist, and be enforced in equity, in the,absence of an express decision"OIl the poillt by tb,e court of appeals, and ,in vIew of the conflicting decislolul' of the state collrts.
Lord, Day & Lord, fot complainant. Goodrich, Deady, & Goodrich, for defendants.
TOWNSEND, District Judge. This is a suit brought to collect from the heirs of Sarah O. H. Waldo, deceased, the amount due on a bond' made by her in her lifetime. Said bond became.due January 12, 1873. Said Sarah O. H. Waldo died in April, 1873. .This action was commencedln February, 1891. . The only party now defending is RhinehlllderWaldo, a grandson of Sarah O. H. Waldo. Said Sarah O. H. 'Waldo devised all her real estate to her two sons, Horace and Francis, so that said Francis took the same interest as he would have taken if there had been no will. Said Francis subsequently deceased, the .defendant Rhinelander leaving as his heirs three children, is one. The one-sixth of the real estate which came to Rhinelander from his grandlllOther, through his father, is worth more than the onesixth ofthe balance due on the bond sought hereby to be recovered from him. He makes three defenses: Fil1st, that the action is barred by the general statute of limitations in New York, providing that actions Dot speciallY"lMntioned must be brought within 10 years after the accruing of the cause of action; second, it has not been proved that Mrs. Waldo. did not leave sufficient personal property to pay the debt providing that of the plaintiff; third, that the statute of New land af heirs and devisees can be taken in payment of debts of the ancestor or testator, does not apply to heirs of such heirs and devisees. . The question of the statute of limitations seems to be settled by 001gan v. Dunne, 50 Hun, 443;3 N. Y.Supp. 309;;and Hauselt v.Patterson, 124 N. Y. 349, 26N. E.93i',; both of which cases hold that,.although the remedy is given by statute, the cause of action is founded upon the obligation of the ancestor to pay the bond, and that the statute of limitations is no more available to the heirs than it would have been to the ancestor. The bond under seal, by the statutes of New York the action may be brought within 20 years from its maturity, as has been done. Defendant makes no claim under.the statute of limitations of South CarQlip,a, where bond waspll.yable., Moreoyer, the of limitations has not been pleaded as a defense. The evidence is such ,as to leave no reasonable doubt that there were nO personal assets for the payment of this bond; and no evidence or claim is made to the contrary, and in the circumstances it .'. .. should be held sufficient. Illasmuch as the real estate left by Mrs. Waldo was devised to her sons in e¥.aGtly the same manner as they would have inherited, they .take'as heirs. 4 Kent, Comm. 594; Buckleyv. Buckley, 11 Barb. 43. In Fink v. Berg, 50 Hun, 211, 2 N. Y. Supp. 851, it isheldthatthe statute of New Yor4 does not render the heir of a devisee liable for the debts of a testator, and, as it is declaratory of the rights of the creditor,and the liability of the heir of a devisee has not been created, it cannot be maintained under the provisions of the law. The authorities cited in the exhaustive brief of counsel for complainant seem to establish that at common law the heir of an heir would be liable, to the extent of the real estate received' by bim, for a specialty 'made by the' ancestor, and expressed to be binding upon heirs.' And it also appears that this liabHity can be enforced by a court of equity. . Ohewett v. Moran, 17 Fed. 820, and other cases there cited. Triud v; Magnes,49 N. Y. Super. Ot. 309, holds directly that the indebtedness 01 an.·allcestor follows the
WESTERN COMMERCIAL TRAVELERS' ASS'N V. SMITH.
real estate into the hands of the heir or his devisee. This case, although directly contrary to Fink v. Berg, and' five years earlier, is not there mentioned. Colgan v. Dunne, supra, says that the remedy, and not the right of action, is given by statute; and Hauselt v. Patterson, supra, takes the same view. In the absence of any express decision on the point involved by the court of appeals of New York, and in view of the conflicting decisions, that conclusion which is most agreeable to the common law, to justice, and the course of equitable procedure, should be adopted. Let a decree be entered for complainant.
WESTERN COMMERCIAL TRAVELERS' ASS'N. v. SMITH.
(Circuit Court of Appeals, Eighth Circuit.
February 14, 1898.)
ACCIDENT INSURANCE-NOTICE OF INJURY OR DEATH.
An accident policy provided that, in case of "any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, Immediate notice shall be given In writing," with full particulars of the accident, and that a failute to give such notice should Invalidate the claim. Held, that two classes of notices were intended,-one an Immed.late notice of the accident or Injury when not resulting In death, and the other an Immediate notice of death resulting from accident 01' injury, the latter to be given by the beneficiary; and that a notice so given in the latter case'vas sufficient, though no notice of the injury was given before .death.
2. SAME-"AcCIDENTAL MEANS" DEFINED. If a, disease resvlting.in death is the effect of an accident, so as to be a
mere link In the chain of causaticn between the accident and the death, the death is attributable, not to the disease, but to the accident alone. Where blood poisoning results from an abrasion of the skin of a toe by a new shoe, and death follows, the death is properly ath'ibutable to "bodily injuries effecteil by extertlal, Violent, and accidental means," within the meauing of an accident policy.
"Accidental means" are those which produce effects which are not their natural and probable consequences. An effect which Is a natural and proba' ble consequence of an act, or course of action, is not an accident; but on which Is not the natural and probable consequence of an act, or course of action, Is produced by accidental means, and is an accident.
In Error to the Circuit Court of the United States for the Eastern District of Missouri. F. N. Judson (C. S. Taussig and Louis R. Tatum, on the brief), for plaintiff in error. S.L. Swarts (E. M. Merriman and George H. Sanders, on the brief), for defendant in error. Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District Judge. SANBORN, Circuit Judge. The Western Commercial Travelers' Association, the plaintiff in error, has sued out a writ to reverse a judgment against it npon a certificate of insurance against accident which it issued to Freeman O. Smith, one of its members, for the benefit of