Rep. 47; Chambers v. Atlas Ins. Co. 51 Conn. 17; 50 Am. Rep. 1; Virginia F. Sc. M. Ins. Co. v. Wells, 83 Va. 736; Travelers' Ins. Co. v. Cal. Ins. Co. 1 N. Dak. 151; 8 L. R. A. 769; Blanks v. N. O. H. Ins. Co. 36 La Ann. 599; Fullam v. N. Y. U. Ins. Co. 7 Gray 61; 66 Am. Dec. 462; State Ins. Co. v. Meesman, 2 Wash. 459; McElroy v. Continental Ins. Co. 48 Kans. 200; Owen v. How ard Insurance Co. 87 Ky. 571; Hocking v. Howard Ins. Co. 130 Pa. S. C. 170; Lentz v. Teutonia F. Ins. Co. 21 Minn. 85; Chandler v. St. Paul F. & M. Ins. Co. 21 Minn. 85; 18 Am. Rep. 385. It seems to us that the principal case and the majority of the decisions are clearly right. It is difficult to appreci ate the reasoning by which the time when the loss or injury shall " occur " or " happen " is post poned from the time of the accident or casualty to the time when the amount is definitely and formally claimed by the party. The loss or injury consists in the destruction by fire or the occurrence of the acci dent, and it is impossible for language to make the intent plainer, unless the contrary is explicitly nega tived, which no reasonable human being would think necessary or sensible. One might as well say that the birth of a child does not occur until it is chris tened.
Surrender of Custody of Infant Child. — In Enders v. Enders, 164 Pa. St. 266, 27 L. R. A. 56, it was held that a contract, by a wife separated from her husband, to surrender the permanent cus tody of an infant to her father, a man of means, is not against public policy. This is in accord with the general consent of authority, as shown in the notes in 27 L. R. A. 56, and Browne on Dom. Rel. 77. The Court say that they cannot find that such a contract has ever been held void or voidable, and cite cases where such a contract, even with a stranger, has been upheld (Van Dyne v. Vreeland, 11 N. J. Eq. 371; Hill v. Gomme, 1 Bear. 541), when for the interest of the infant, and observe : — "We concede the authorities establish that the contract of a parent, by which he bargains away for a consideration the custody of his child to a stranger, he attempting to re lieve himself from all paternal obligation and place the burden on another, who is to shoulder it, it, without natural affection or moral obligation to prompt to the per formance of parental duty, but only because of a bargain, is void as against public policy. Such a contract would be the mere sale of the child for money. But this was a family compact. The pride of the grandfather centered on the child as his only living male descendant, in whose future there was promise." In the principal case the grandfather had promised to give the mother $20,000 by will or otherwise, in
consideration of the transfer of the child, had died without doing so, and the action was to compel it, and was sustained.
Composition — Fraudulent Preference. — In Hanover National Bank v. Blake, 142 New York, 27 L. R. A. 33, it was held that where a debtor secretly gives to a creditor a preference, by way of additional security on composition notes, the notes are not there by rendered void. The substance of the decision is that in such cases only the additional inducement or benefit is avoided, and the creditor may recover the proportionate amount of the composition common to all. This is contrary to the English doctrine, which holds that such a preference renders the security totally void. The Court cited the weighty authority of Judge Duer, in Breck v. Cole, 4 Sandf. 79, and the cases of Fellows v. Stevens, 24 Wend. 294; Bliss v. Matthews, 45 N. Y. 22; Harloe v. Foster, 53 N. Y. 385; White v. Kuntz, 107 N. Y. 581; 1 Am. St. Rep. 886; Meyer v. Blair, 109 N.Y. 600; 4 Am. St. Rep. 500; Solinger v. Earle, 82 N. Y. 393, Judge Gray observes : — "If we should say that the fraud of the secret agreement made by the creditor operated to avoid the whole transac tion of composition, the result would be to leave him with the original indebtedness unreleased. If the composition agreement, by which the debt was compromised, is to be deemed nullified by the fraudulent transaction, I do not see why the creditor would not be at liberty to pursue the orig inal debt; a view which Littledale, J., regarded as possible in Howden v. Haigh. It would certainly seem to be the logical outcome of the proposition asserted below that, if the composition agreement has been avoided, it has be come inoperative as an agreement, for any purpose. We assert a wholesome rule, and one which works a just result, if we hold that the secret and fraudulent agreement itself is illegal, and is inoperative to confer any rights or advan tages upon the creditor. Perfect equality is to be main tained among the creditors. It was thought below that the secret agreement and composition agreement constituted but a single and indivisible transaction or agreement. I am not prepared to accede to that proposition, though it has support in some of the English cases referred to. It seems to me the case falls easily within the rule which per mits a severance of the illegal from the legal part of the covenant . . . We should be careful, in our desire to punish the harsh and unscrupulous creditor, who presses his debtor, and bargains for an advantage over other creditors, by deprivation of legal rights and remedies, that we do not go too far, and lay down a rule which may result unjustly in other ways. It ought not to be possible that, through his fraud, he may be reinstated in his original position as a creditor for the whole sum due." This seems to be the first time that this doctrine has been necessarily and unequivocally adjudged. The case is well annotated in the L. R. A.
