72; Thornton . Mo. Pac. Ry., 42 Mo. App. 58: sheriffs: Rea . Smith, 2 Handy (Ohio), 193; Stamper . Temple, 6 Humph. (Tenn.), 113: deputy sheriffs: Warner Grace, 14 Minn. 487; chiefs of police: Day . Ins. Co., 16 Minn. 408; watchmen: Pool :. Boston, 5 Cush. (Mass.) 220; customs officers: Davis : Burns, 5 Allen, (Mass. ) 352 ; and overseers of the poor: Ring ". Devlin (Wis.), 32 N. W. Rep. 121. Even a private person, who applies for and receives from a sheriff a warrant and special deputation to arrest a fugitive from justice, becomes a deputy thereby, and cannot recover a reward for the arrest: Malpass . Caldwell, 70 N. C. 130. But if the warrant was illegal, or otherwise conferred on him no authority to make the arrest, he can still claim the reward: Hayden 7. Souger, 56 Ind. 42; S. C. 26 Am. Rep. 1. This exception does not apply, however, where the services are outside of the officer's line of duty: England. Davidson, 11 Ad. & El. 856. As where a fugitive from one State is arrested without process by an officer of another State: Morrell v. Quarles, 35 Ala. 544. Or even by an officer of another county: Davis 2. Munson, 43 Vt. 676; S. C. 5 Am. Rep. 315. A constable temporarily suspended does not act in the line of his duty in securing evidence to convict a criminal: Smith 7. Moore, 1 C. B. 438. It is no part of the duty of a municipal officer to leave his city and county, and prosecute an offender in another county: Bronneberg. Coburn, 110 Ind. 169; S. C. 11 N. E. Rep. 29. It is not the duty of an officer to make an ar rest without warrant for an offence not committed in his view, and without legal complaint made against the party arrestel: Kasling. Morris, 71 Tex. 584; S. C. 9 S. W. Rep. 739; Russell . Stewart, 44 Vt. 170. So, when a sheriff of a county in New York pursued a fugitive to Illinois, and there arrested him under a requisition, it was held that he did not receive process in Illinois as sheriff, that he made the arrest as a private citizen, that the fact that he was sheriff, or that the requisition described him as such, added nothing to his authority, and that he was. entitled to the reward: Gregg ". Plerce, 53 Barb. (N. Y.) 387. But see Malpass . Caldwell, 70 N. C. 130. And, similarly, a fireman can recover a reward for rescuing a body from a burning building, as it is no part of his duty to risk his life in the service: Reif . Paige, 55 Wis. 496; S. C. 42 Am. Rep. 731. A reward for the arrest of "any one who has killed another, and is flecing or attempting to flee before arrest " is carned by a private person, who arrests a criminal who has escape from arrest by another private person: Wilson v. Wallace, 64 Miss. 13; S. C. 8 So. Rep. 128; but not when he has escaped from an officer: Candler v. Itawamba Co., 62 Miss. 194. IV. Liability on Offer.-There is sometimes a doubt as to whether the offor of a reward creates a personal liability. If offered by a private individual, acting for himself, it undoubtedly does so; but where it is offered by a public officer, or by a person acting as the agent of another, it depends wholly upon the authority of the offeror to bind his principal by such an offer. An agent may bind his principal by offering a reward for the recovery of property: Gibb's Case, 14 Ct. of Cl. 544. And a railroad superintendent, without express authority, may bind the company by the of fer of a reward for the arrest of persons offending against its property rights: Cent. R. R. & Bkg. Co. 2. Cheatham, 85 Ala. 292 ; S. C. 4 So. Rep. 828. But whether an offer of a reward by the chairman of a political committee binds him personally is a question for the jury: Wilmoth 7. Hensel (the principal case), 151 Pa. St. 200; S. C. 31 W. N. C. 237; 25 Atl. Rep. 86. Public officers, however, must show clear authority to bind the municipality; and if they do not, they will be personally liable, although they make the offer under their official designation: Prentiss 7. Farnham, 22 Barb. (N. Y.) 519; Freeman v. Boston, 5 Metc. (Mass.) 56; Brown 7. Bradlee, 156 Mass. 28; Borough of York v. Forscht, 23 Pa. St. 391; Lec' v. Trustee, 7 Dana (Ky.), 28. In general an offer of a reward is to be construed as the public would understand it, and not with strict technicality: Fargo v. Arthur, 43 How. Pr. (N. Y.) 193; Wilmoth v. Hensel (the principal case), 151 Pa. St. 200; S. C. 31 W. N. C. 237; 25 Atl. Rep. 86. Whether it applies to past offences, or future, or both, is to be gathered from the wording of the particular offer: Cent. R. R. & Bkg. Co. v. Cheatliam, 85 Ala. 292; S. C. 4 So. Rep. 828; Cornelson. Ins. Co., 7 La. An. 345; Saibadore . Ins. Co., 22 La. An. 338; Freeman . Boston, 5 Metc. (Mass.) 56; Loring . Boston, 7 Metc. (Mass.) 409: Re Kelly, 39 Conn. 159. Although the finder of lost property has no claim to a reward, if none has been offered: Watts Ward, Oreg. 86; Wentworth v. Day, 3 Metc. (Mass.) 352; Nicholson. Chapman, 2 II. Bl. 254; only to be reimbursed his neces sary expenses in keeping it: Amory v. Flynn, 10 Johns. (N. V.) 102; yet if a reward has been offered, the finder has a lien on the property to the amount of the reward, and can retain it until the reward is paid: Wentworth v. Day, 3 Metc. (Mass.) 352; Cummings v. Gann, 52 Pa. St. 484. But no lien is implied when the offer is merely of a "liberal reward:" Wilson v. Guyton, 8 Gill. (Md.) 213. If the finder has sued for the reward and recovered judgment, he can still retain the property until the judgment is paid, and the owner cannot replevy it: Everman v. Hyman, 3 Ind. App. 459. When two persons claim a reward, it is held in England that it is not a proper case for an interpleader Collis v. Lee, 1 Hodges, 204; but in New York, that it is : Fargo v. Arthur, 43 How. Pr. (N. Y.) 193. When a reward has been earned by one person, but paid to another through fraud or mistake, an action will lie to recover it from the wrongful receiver: Stephens v. Brooks, 2 Bush. (Ky.) 137, but not assumpsit for money had and received; for there is no privity between them: Sergeant . Stryker, 16 N. J. L. 464. When an offer of a reward for arrest or information is in the disjunctive, and one person arrests and another gives the information required, the offeror must pay each a sum equal to the reward offered: Per Ld. Kenyon, in Ernst's Case, 3 Went. Plead. 30. When the claimant did not know at the time that a reward had been offered, any sum accepted by him in return for the services performed will be considered as in satisfaction thereof: Marvin v. Treat, 37 Conn. 96. V. Practice.-A reward need not be declared on specially, but may be recovered on a general indebitatus assumpsit: Bank v. Hart, 55 III. 62. The declaration must show that the plaintiff has performed the conditions of the offer: Codding v. Mansfield, 7 Gray (Mass.), 272. To recover on a reward for arrest and conviction, the plaintiff must allege that he was instrumental in procuring the conviction, not merely that the criminal was convicted: Furman v. Parke, 21 N. J: L. 310; Morris v. Kasling (Tex.), 15 S. W. Rep. 26. The record of conviction is evidence that the claimant has earned the reward: Brown v. Bradlee, 156 Mass. 28; overruling on this point Mead v. Boston, 3 Cush. (Mass.) 404. The Statute of Limitation does not begin to run against a claim for a reward until it has been earned by full performance: Ryer v. Stockwell, 14 Cal. 134. [NOTE.-"People are very ready to offer rewards for the discovery of offenders whilst smarting under the loss or injury they have sustained, but are slow indeed to pay them when the claimants present themselves:" C. J. Tindal, in Smith ». Moore, C.B.438] R. D. S. NOTES AND COMMENTS ON RECENT DECISIONS. In the February number of the AMERICAN LAw Register AND REVIEW, in a note to Railway Co. v. Spencer, the English cases of Rayner v. Preston, and Castellain v. Preston, were cited and discussed. I think that Raynor v. Preston, is good law in New York, and ought to be good law everywhere. Castellain v. Preston, I am not very well satisfied with. In the first place, its conclusion is not demonstrated to be consistent with the doctrine of indemnity. It proceeds upon the notion that the value of the property at the time of the fire, must be the same as its value at the time of the execution of the executory contract to sell. This may not have been so. There was in that case a two year period within which to exercise option to complete sale. But a more serious objection is this. An executory contract to sell a house and lot in future is not a present sale, and, until the time comes for closing title, the vendor, who is still the owner, would seem to have the right to reap the advantage of pending contracts with third parties relating to his property. When the time for closing title arrives, the vendee is entitled to receive substantially what he has contracted for. If the house has meanwhile burned down, or has been substantially injured or destroyed by fire, it does not seem to me that the vendee is legally obligated to take the property under the usual executory contract of sale. And this position is not without warrant of authority, and has been expressly held in New York. Listman v. Hickey, N. Y. Law Journal, p. 1249, Feb. 20, 1892; Smith v. McCluskey, 45 Barb. 610; Goldman v. Rosenberg, 116 N. Y. 78; Smyth v. Sturges, 108 N. Y. 492. If the vendee chooses to complete the purchase, he does so because he considers the property still worth the purchase price. If the vendor cannot compel a purchase, there is no legal right in his favor to form a basis for subrogation in favor of the insurance company. Moreover, the rule in Castellain v. Preston, would not work well in practice. To compel the parties to a future executory contract to complete as matter of legal obligation when both of them prefer to cancel before the time for closing would be manifestly inconvenient. But if the law permitted them to cancel their executory contract, they would, by consent, do this upon the occurrence of the fire, in order to compel the insurers to pay the loss, provided, Castellain v. Preston, were good law. After cancelling the subsisting contract of sale, a new contract of the same tenor and effect might immediately be substituted under which it could not be claimed that the insurance company would have any right of subrogation to the purchase price. The insurance contract is, in its terms, an agreement to pay to the vendor the cash value of his property destroyed. The starting point and presumption should be, that the contract is to be enforced according to its express terms unless a clear consideration of public policy intervenes, and where the assured has respected the doctrine of the necessity of an insurable interest at the time of the issuance of the policy, and also during its entire life it is hardly worth while to press the doctrine of indemnity any further. According to Castellain v. Preston, the insurers may receive premiums for nothing, though no condition of the contract has been violated by the insured; and this result is in itself inequitable. The strict doctrine of indemnity has for convenience been abandoned in the law of life insurance on this account. Nor is it uniformly applied in the law of fire insurance in accordance with the rigid rules iaid down in Castellain v. Preston. In proof of this, many cases might be cited from the English and American reports: Blackstone v. Alemahnia Ins. Co., 56 N. Y. 104; Mut. Safety Ins. Co. v. Hone, 2 Comst. (N. Y.) 235; Collingridge v. Royal Exchange Ins. Co., 3 Q. B. D. 173; Seymour v. Vernon, 21 L. J. Ch. 433; Burnard v. Rodocanachi, 7 App. Cas. 333, 339. In fact, in Castellain v. Preston, the learned justices seem to |
