Page:Harvard Law Review Volume 10.djvu/409

383 RECENT CASES. 3^3 before it has been assigned. 3 Pomeroy's Eq. Juris. § 1383. Her right before assign- ment of dower being a chose in action, and the better view being that, although a chose in action belonging to the debtor cannot be seized upon common law execution, yet it can be reached through the aid of equity Uladden v. Spader, 20 Johns 554), the de- cision in Davison v. Whittlesey, I Mac Arthur, 163, contra to the principal case, seems a more correct exposition of the law. As stated in the last mentioned case, it is unjust for the widow to defeat the rights of her creditors by neglecting to ask for a formal assignment; this forms another good ground for the interposition of equity. Equity — Subrogation. — Petitioner, a tax collector, accepted a check in pay- ment of taxes on the land. The check was never paid, the drawer having become insol- vent. A statute required the payment of taxes in cash. Petitioner prayed that he might be subrogated to the lien of the State for the taxes thus paid. Held, petitioner's case did not entitle him to the relief asked. Mercantile Trust Co. v. Hart, 76 Fed. Rep. 673. A third person who had advanced to the tax payer money with which to pay the taxes on the land could not ask subrogation. On the facts of the principal case the tax' collector is substantially in the position of such third person ; his act amounted to cashing the tax-payer's check on his — the collector's — individual account. The inter- esting question as to whether one can under any circumstances claim subrogation to the State's lien for taxes, though touched on, is not discussed. Evidence — Deceased Witness — Testimony given at Former Trial. — A was accused of murder. On the preliminary trial B was a witness, and testified against him. A was present and had the opportunity of cross-examination. B after- wards died, and at a later trial the evidence was offered which B had given at the former hearing. Held/t was inadmissible. Cline v. State, 36 S. W. Rep. 1099; 37 S. W. Rep. 722 (Tex.). The majority opinion does not seem sound. It is based on too strict a construction of that constitutional provision, which is found in almost every State, to the effect that in criminal prosecutions the prisoner shall be confronted with the witnesses against him. The court reads this language of the Constitution with absolute literalness, failing to appreciate the fact that it should be interpreted in the light of the history of the law. The reasoning advanced, resting as it does on the literal words of the Constitu- tion, would apply equally well to dying declarations, although one would hardly think seriously of contending that these should be excluded. Formerly a few States did refuse to receive the reported testimony of a witness living at a former trial, and since deceased. But the cases are now practically unanimous against this view. Best on Ev. Am. ed., 472,473 ; Jones on Ev. § 345. One of the latest adjudications on the sub- ject is by the United States Supreme Court in Mattox v. United States, 156 U. S. 237, 240, a decision which is directly contra to the result reached in the principal case. Insurance — Interpretation of an Avoiding Clause — Validity of a Prior Policy. — The defendant company issued a policy to the plaintiff, containing the ])rovision that if a subsequent policy should be taken on the same premises the policy should be void. The plaintiff took another policy containing the provision that it should be void if there existed any other policy. Held, that the taking of the second did not render the prior one void, but that the plaintiff could recover. Sweeting v. Mutual Fire Ins. Co., 34 Atl. Rep. 826 (Md.). As this was the first time the question had arisen in Maryland, the court were not bound by any decision in that State, but were at liberty to follow the opinion that, as the second was unenforceable as soon as issued, the condition in the first was not violated. Thomas v. Ins. Co ,iig Mass. 121 ; Ins. Co. v. Holt, 35 Ohio St. 189 ; Stacey v. Ins. Co., 2 Watts & S. 506 ; lindley v. Ins. Co., 65 Me. 3'S8 ; Gee v. Ins. Co., t;5 N. H. 65 ; Ins. Co. V. Nichol, 35 N. J. Eq. 291 ; Ins. Co. v . Slaughter, 20 Ind. 520. The opposite result was reached in Carpenter v. Ins. Co., 16 Pet. 495; Allett v. Ins. Co., 30 La. Ann. 13S6; Somerfield v. Ins. Co., 8 Lea, 547 ; Biglers v. Ins. Co., 22 N. Y. 402 ; Tunke v. Ins Co., 29 Minn. 347. These cases proceed on the theory that the second i)olicy is not void at once, but that the provision in question only gives the insurer a defence in an action on the policy, and until that defence is taken the policy is not void, as its nullity does not appear upon its face. In order to answer this argument recourse must be taken to the intention of the parties and the provision viewed in that light The obvious intention was to prevent the possibility of the insured over-insuring. This purpose is attained when he had only one policy on which he can recover. As the words of the provision will bear such an interpretation, it may well be said that the view taken in the principal case represents the better o])inion, for in it justice and the real object of the provision prevail over a mere technicality. There is another or intermediate view taken in Hubbard v. Ins. Co.., 33 Iowa, 355, that the validity of the prior policy turns on