LANG 11. LYNCH.
489
sued on was issued, the plaintiff actually had $90,000 of insurance on the properties, and afterwards, without notice to the defendant, canceled $30,000. ' Morris, Newberger &- OultiJJ and Sharp &- Alleman, for plaintiff. W. T. Brown and Vimon Carter, for defeudant. WOODS, J., (after stating the facts as above.) The court does not accede to the proposition that the statement furnished by the assured, when inserted in the policy, became either a representation or a covenant by the assured that he had, or intended to procure, and would maintain, insurance upon the several pieces of property described to the respective amounts set opposite each; nor, if such representations were conceded, does the court think the consequences contended for would follow.· In the absence of any corresponding covenant or condition in the contract, a mere representation of intention in respect to future acts or conduct creates no obligation, and affords no ground of relief from an agreement. It is alleged in the answer that when this policy was written the complainant; had other insurance to the amount of $90,000, butthat can hardly affect the question, there being in the policy no stipulation or condition that any particular amount of insurance should be maintained. Demurrer sustained.
LANG
et ale "'.
LYNCH.
«(Jif'w,it (Jourt, D. New Hampshire. April 19, 1889'1
1.
INTOXICATING LIQUORS-ILLEGAL SALES-AcTION FOR PRICE.
2. SAME. . The effect of that statute is to bar the right to recover the priceof liquor sold in violation of its provisions. Following Jones v. Surpri8e, (N. H.) 9 Atl. Rep.884. 8. SAME-CONSTITUTIONAL LAW-REGULATION OF COMMERCE. That statute is not s. restriction upon interstate commerce. Distinguishing Bowman v. Railway OQ., 8 Sup. Ct. Rep. 689, 1062.
The taking of an order for liquor by a traveling salesman, In New Hampshire, to be filled by his principals residing in another state. forms It part of the contract of sale, so as to make the transaction void under Gen. Laws N. H. c. 109, § 18, making it a criminal offense to solicit or take orders for spirituous liquors in the state, to be delivered at a place without the state, knowing or having reasonable cause to believe that if so delivered the same will be transported into the state, and sold in violation of law. Following Jones. v. Surp.ri8e, (N. H.) 9 AU. Rep. 884-
:
At Law. On motion by plaintiffs for new trial. John Hatch, for plaintiffs. John S. H. Frink, for defendant.
COLT, J. By the laws of New Hampshire it is made a criminal offense ;for a persoll to solicit or take orders for spirituous liquors iIi the state, to be delivered at a place without the state, knowing, or having
,490
FEDERA,J.
vol. 38.
,reasonable cause to believe, that if so delivered the same will be transported into. the state, and sold in violation of law. Gen. Laws, c. 109, § 13. The present suit is brought to recover the price of certain liquor to the defendsold by the plaintiffs, who are residents of ant, a resident of New Hampshire, an agent of the plaintiffs in New Hampshire having first taken an order for the liquors from the defendant. The plaintiffs now move for a new trial on the ground of error in the rulings of the court. There are three grounds on which the plaintiffs claim a new trial: First, that the taking of tqe order forms no part of the contract of sale, and therefore does not bal: a recovery of the price; second, that the law ofJsew Hampshire inflicting l1penalty for the offense of soli9iting or taking an order does not bar the right to recover the price of the liq1,lor sold; third, that the statute is unconstitutional, because it is a regulation. in restraint of commerce between the states. In J.ones v. Surprille, 64 N. H. 243, 9 At!. Rep. 384, the supreme court of New Hampshire, in an elaborate opinion, have considered the first two questions which the plaintiffs now raise by this motion. See, also, Hill v. Spear, 50 N. H. 253. Under the deciE\ionsofthe supreme court of the United States,1 thiI}.k.this tribunal is bound to follow the construction put upon this statute hy,tbe highest court of. the state. From the recent opinion in Bucher v. Railroad Co., 125 U. S. 555, 8 Sup. Ct. Rep. 974,it seems clear that the present case comes within this rule of construction. But, independently of this rule, I agree with the conclusions of the state court in Jones v. Surprise. The case of Ha'r'fW v. Rwnne18, 12 How. 79, cited by the plaintiffs, turned upon the construction of the statutes of Mississippi, and the intent of the legislature relative thereto, but there is nothing in the opinion of the court in that case, nor in SortweU v. Hughes, 1 Curt. 244, which is also relied upon by the plaintiffs, when we carefully analyze those cases, which is in conflict with the decision of the court in Jones v. Surprise. I am of opinion, therefore, that the taking of the order by the agent of the plaintiffs was a part of the contract of sale so far as to forbid a right of recovery upon the contract, and that the statute of New Hampshire inflicting a penalty for the offense prohibits the right of recovery for the price of liquors sold. Upon the point that the law is unconstitutional the plaintiffs rely upon the recent case of Bowman v. Railway Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062. That case decided that a statute of Iowa which restricted the importation of liquors from another state was void because it was a violation of the right of congress to regulate commerce between the states. But that case is not applicable to the present one. The statute of New Hampshire does not rostrict the importation of liquors from other states; it simply forbids the taking of orders for liquors to be sold within the state in violation of law. It may be that the effect of the law is to prevent the importation of liquors from other states, but the distinction between state restrictions upon the importation and state reI3trictions upon the sale of a commodity when within the state is clearly repognized, and. well defined. It is well stated in the closing words of M:r.. J:Uliltice MATTHEWS in Bowman v.Railway Co.:
tI. DOTY.
,
491
"Itisenougbto say'that the power to regulate or forbid the aale of modi ty, after it has been brought j uto the state, does not carry with it the another right and power to prevent ita introduction by transportation state. " The motion for a new trial is overruled.
BURDETT V. DOTY.
«(Jireuit Court, E. D. Miehigan. May 6,1889.) REPLBVIN-JumSDICTION.
Where a writ of, replevin was Inadvertently issued In a case of whIch tbe court bad no jurisdiction. and the property was turned over to the plaintiff pursuant toa statute of the state, held, that the court was not authorized to enter a judgment for a return of the property. or to assess its valuej its power is limited to dismissing the writ.
At Law. On motion to set aside assessment of damages. This was an Iiction of replevin begun on the 21st of March, 1887, for a stock of clothing appraised at $653.38. By the writ the property was described as exceeding $500 ill value. . The suit was commenced in ignorance of the statute of March 2, 1887, raising the minimum ot' jurisdiction from $500 to $2,000. The property was delivered to the plaintiff in replevin upon his executing a bond under the statute of this state, conditioned upon the prosecution of his suit to effect. On the 9th day of January, 1888, an order was made dismissing the case for want of jurisdiction, and directing a return of the property seized under the writ. The defendant waiving a return of the property, a further order was made that he recover its value, to be assessed by a jury, irrespective of the question of plaintiff's right, title, interest. or ownershir therein. Damages were assessed at $900. An application was subsequently made to the supreme court for a writ of mandamus to vacate this judgment, which was denied. Ex parte Burdett, 127 U. S. 771, 8 Sup. Ct. Rep. 1394. Motion was then made to set aside the order assessing these ages, upon the ground that the court had exceeded its power. Griffin & Warner, for plaintiff. C. P. Black, for defendant. " BROWN, J. There is no question that the case was properly dismissed for want of jurisdiction, as the amount in controversy was far of less than $2,000. It is but just to counsel to say that the the act the minimum jurisdictional amount from $.500 to . $2,000 was not generally known to the profession at the time this suit was begun. The court, however, went further, and ordered a return of the property replevied, upon the authority of Mail 00. v. Flanders, 12 Wall. 130. This was a bill in equity against a treasury agent of the United States and an auctioijeer, setting forth that the treasur.y agent,
