v. Georgia Home Ins. Co. 42 Ga. 456; Bigler v. New York Ins. Co. 22 N. Y. 402; May, Ins. § 364. "There is still an intermediate view, taken by the Supreme Court of Iowa in the case of Hubbard v. Hartford F. Ins. Co. 33 Iowa, 325, to the effect that the question of the validity of the prior policy turns upon whether the subse quent policy has in fact been avoided."
"Firearms."— Ordinary breech-loading Spring field rifles which have been altered so that they can not discharge a missile by means of gunpowder or any other explosive, which fact is not obvious to the ordinary observer, are "firearms" within the mean ing of Stat. 1893, chap. 367, § 124, prohibiting un authorized bodies of men to parade with firearms. Com. v. Murphy (Mass.), 32 L. R. A. 606. The Court said : — "It appeared in evidence that the defendant, with ten or twelve other men, formed one company in the parade, and that all the men in this company carried ordinary breechloading Springfield rifles, which had been altered and bored in the barrel near the breech, and the firing pins had been tiled down, so as to make them immovable; and in this condition they could not discharge a missile by means of gunpowder or any other explosive. The defendant contends that these weapons were not 'firearms' within the meaning of the statute. The purpose for which these alterations were made is not disclosed. They would not be obvious to the ordinary observer, while the rifles were carried in the parade. So far as appearance went, it was a parade with firearms which were efficient for use. To the public eye it was a parade in direct violation of the statute. The men who carried these weapons could not actually fire them, but it would be generally supposed that they could. With the exception of the danger of being actually shot down, all the evils which the statute was intended to remedy still exist in the parade in which the defendant took part. To hold that such a weapon is not a ' firearm,' within the meaning of the statute, would be to give too narrow and strict a con struction to its words. It was originally a firearm which was effective for use. The fact that it was disabled for use did not change its name."
Lien on Mortuary Monument. — In Brooks v. Tayntor, New York Supreme Court, Special Term, 17 Misc. 534, it was held that chap. 543, Laws of 1888, giving a lien for the unpaid purchase of a mortuary monument, with power to remove it after erection, is unconstitutional as authorizing the taking of property without due process of law. The judge observed : — "The act in question is almost without precedent in the legislative history of the state. It confers upon the lienors the right to go upon the plaintiff's burying plot and dig up and remove the monument and sell it at public auction without the consent of the owner and without instituting legal proceedings of any kind. In removing the monument
they may desecrate the graves and disturb the remains of plaintiff's deceased wife and daughter, and the statute in question affords him no protection. The learned counsel for the defendants contended upon the argument that desecrating the graves is merely a sentiment, and that the act permitting it to be done is not against public policy. Conceding that it is a mere matter of sentiment, it is one, however, that has received the sanction and approval of mankind of all ages. Every civilized country regards the resting place of the dead as hallowed ground, and not subject to liens and to be sold upon execution like ordinary property. Courts of equity have always been ready to re strain those who threaten to desecrate the graves of the dead, and to protect the sentiment of natural affection which the surviving kindred and friends entertain for their departed relatives. It is a sentiment that the Legislature of this State recognized years ago by passing appropriate laws to preserve and protect the resting places of the dead."
Definitions — "Public Accommodation and Amusement."— A drug-store, in which soda-water is sold, is not a place of " public accommodation and amusement," within a statute providing "That all persons within the jurisdiction of said state shall be entitled to the full and equal enjoyment of the ac commodations, advantages, facilities, and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land or water, theatres, and all other places of public accommodation and amuse ment." The Court said that "such places can be considered places of accommodation or amusement to no greater extent than a place where dry goods or clothing, boots and shoes, hats and caps, or groceries are dispensed." Cecil v. Green, 161 Ill. 265; 32 L. R. A. 566.
The Dangers of Obiter. — If there is any doc trine that is disputed, and indeed discarded by a majority of courts in this country, it is that of the celebrated English case of Fletcher v. Rylands, L. R. 1 Ex. 265, that one who dams water on his own land, does so at his peril, and is responsible for its escape, to the injury of a neighbor, even if he is not negligent — the wild beast theory. This is said by the Ohio Supreme Court to "be in exact accord with justice and sound reason " : Defiance Water Co. v. Olinger, 32 L. R. A. 736, but in the same sentence they admit, that as negligence was alleged, the doc trine so expressed "does not concern us at this time." Then why express it? This is an unwise and very mischievous habit. It is as much as most judges are able to do, to lay down the law applicable to the case in hand, without going outside, and such excur sions are especially reprehensible when they applaud a doctrine that has been received with so little favor as that in question.
