Page:Harvard Law Review Volume 12.djvu/523

503 RECENT CASES. S^S being a crime, is a tort, for which a civil action for damages would lie. No such civil action can lie for breaking a statute, unless the statute itself creates a civil liability, and that was not the fact in the principal case. No more should equity have taken control except for the civil wrong. The statute merely created a right in the public, and only the Attorney- General should take advantage of it, — and that in a criminal proceeding. The business of the court of equity is not the enforcement of the penal code, unless the legislature which created the crime gave the court the power to control it by injunction. Such a course is taken in some of our States, although it puts a severe strain upon the machinery of courts ; but the course was not taken by Parliament in the statute in quesdon, and equity should have looked only at the tort. A tort there undoubtedly was ; and upon that the injunction should have been based. RECENT CASES. Agency — Insurance Policies — Waiver of Conditions. — Held, that an agent of a life insurance company has power, before delivery, to waive a condition that the policy shall be void unless the first premium is paid during the lifetime of the insured, notwithstanding the policy expressly states that he has no such power. John Hancock Mut. Life Ins. Co. v. Scklink, 51 N. E. Rep. 795 (111.). The case is in accord with the great weight of authority. It is generally held that a life insurance agent can, before delivery of the policy, waive any of the conditions therein contained, although there is an express statement in the policy that he has no such power, provided, of course, that the insured has no knowledge of this limitation. Dilleber v. Knickerbocker Life Ins. Co., 76 N. Y. 567 ; Piedmont and Arlington Life Ins. Co. V. Young, 58 Ala. 476. This, however, is merely a question as to the extent of the incidental. powers of the agent, and in all cases the jury should decide whether a reason- able man knowing nothing of this express limitation would say it was within the scope of the agent's authority to waive the particular condition. If in such a case, the agent waives or varies the terms of the policy after delivery, contrary to the express stipula- tions therein contained, the company will not be bound, as the insured will be presumed to know that the agent is not authorized to make such a change. Quinlan v. Provi- dence IVashington Ins. Co., 133 N. Y. 356. Bankruptcy — Voluntary Assignments Voidable by Trustee. — A debtor within four months of being adjudged a bankrupt made a voluntary assignment in con- formity with the laws of his state. Held, that the assignment is voidable by the trus- tee in bankruptcy. In re Gittwillig, 90 Fed. Rep. 475 (Dist. Ct., N. Y.). In the case of Mfg. Co. v. Hamilton, 51 N. E. Rep. 539 (Mass.), which was followed in In re Bruss-Kitter Co., 90 Fed. Rep. 651, it was held that state insolvent laws were suspended by the National Bankruptcy Act. But since general assignments are not made under insolvent laws that principle does not determine the present case. How- ever, a result different from the one reached would be subversive of the whole purpose and policy of bankruptcy legislation, since it would permit a debtor to distribute his asset? in a manner other than that provided by the Bankruptcy Act. Another conclu- sive reason given for the decision is that the provision of the Bankruptcy Act, which makes voluntary assignments acts of bankruptcy, would be of no value to creditors, if the assignment were not voidable. A similar decision under the preceding act, and an abundant collection of authorities is to be found in the case of Globe Ins. Co. v. Cleve- land Ins. Co., 14 B. R. 311. Bills and Notes — Fraud by Drawer — Payee's Liability to Drawee. — Action brought by the drawee against the payee of a bill of exchange to recover back money paid to the defendant's collecting agent, on the ground of fraud perpetrated by the drawer on the plaintiff. The delivery by the drawer to the payee was for collec- tion only. Held, that the defendants must be treated as if they were the actual pur- chasers of the bill, and although in no way parties to the drawer's fraud, they were liable to the plaintiff for money paid to their agent under a mistake of fact. Eufaula Grocery Co. v. Missouri National Bank, 24 So. Rep. 390 (Ala.).