entirety, and if void in part is void altogether. Hence, if the house is
not a dwelling, but a hotel, and the insurance of it is void on that
ground, the policy is also void as to the stable. Thomas v. Commercial
etc. Assur. Co., 323.
6. PROOFS OF Loss.-NOTARY'S CERTIFICATE of loss in good faith re-
quired by an insurance policy to be furnished by the insured is not
part of, and need not be furnished with, or annexed to, the proof of
loss. A demand for such certificate by the insurer is not a demand for
amended proofs of loss, and does not affect conditions in the policy as
to the time within which proof of loss must be furnished and an action
commenced against the insurer. Merchants' Ins. Co. v. Gibbs, 413.
1. Waiver of PROOFS OF LOSs.—A demand by an insurer for additional
proofs of loss is a waiver of the objection that proofs of loss were not
furnished within the time limited by the policy. Merchants' Ins. Co. v.
Gibbs, 413.
& INSURABLE INTEREST IN TRUST PROPERTY.-Under a policy of insur
ance providing that the assured is insured in his own name on a
"stock of wallpaper, shades, and other merchandise not more haz-
ardous, his own or held by him in trust, or on commission, or sold but
not removed," while contained in a certain building, the insured who
holds such goods for the benefit of the true owners, as their property,
for their use and advantage, receiving a fixed compensation for his
services, holds them in trust, and it is not necessary that, in addition to
such holding, there should be superadded a personal and individual
interest of his own as owner, in order that he may recover in case of
loss. Roberts v. Fireman's Ins. Co., 642.
INSURANCE OF PROPERTY HELD BY AGENT OR IN TRUST.-An agent or
Consignee having the principal's property in his possession, being
responsible for it and having a special interest in it to the amount of
his commissions, may insure it in his own name, and, in case of loss,
recover the full amount of the policy, holding all beyond his own
interest in trust for his principal. Roberts v. Fireman's Ins. Co., 642.
10. EFFECT OF MORTGAGING Insured PROPERTY.—After a contract of in-
surance has been completed the insured cannot escape liability for the
payment of the premium by executing a mortgage upon the property,
notwithstanding a condition in the policy that renders it void if the
title of the property is transferred or changed without the consent of
the insurance company, for giving a mortgage does not change or trans-
fer the title. Hartford Steam Boiler etc. Co. v. Lasher Stocking Co., 859.
11. INSURANCE Against DamAGE FROM EXPLOSION OF BOILER-DEFECTS—
CONDITIONS PRECEDENT-ESTOPPEL.-If, accompanying a policy of in-
surance against damage from the explosion of a boiler, there is a report
from the inspector of the insurance company in reference to certain
changes in the setting of the boiler, the report does not make such
changes a condition precedent to the taking effect of the policy, but is
simply intended as a suggestion to the insured that they ought to be
effected. The issuance of the policy, with a knowledge of such defect,
would simply estop the company from urging it as a defense in a suit
upon the policy. Hartford Steam Boiler etc. Co. v. Lasher Stocking Co.,
19. FOREIGN CONTRACT.-A CONTRACT MADE AND ACCEPTED BY LETTER
BENT THROUGH THE POST IS COMPLETED AND TAKES EFFECT the
moment the letter of acceptance is deposited in the postoffice. The
acceptance, however, must be an absolute, and not a conditional, one,
Hence, if an applicant for insurance delivers his application to the
special agent of a foreign insurance company, who transmits it to the
office of the company, and the policy is issued and mailed to the appli-
eant, the contract takes effect when the policy is mailed. It being a
foreign contract, the question as to whether the insurance company, or
its agent, had a license to transact business in the state where the
application was made is immaterial in an action by the company to
recover a premium. Hartford Steam Boiler etc. Co. v. Lasher Stocking
Co., 859.
13. ASSIGNMENT OF, CONSIDERATION FOR.-One who procures from a mem-
ber of a partnership a loan of the firm's moneys by misrepresentation
is, after such member has made good to his firm the loss resulting to
the firm, under a moral obligation to repay him, and this obligation will
support an assignment of the policy of insurance upon his life made for
the purpose of idemnifying such person for the loss he had thus sus-
tained. Robinson v. Hurst, 266.
14. ASSIGNMENT OF WHEN PAYABLE TO LEGAL REPRESENTATIVES.-A policy
on the life of the assured payable to his legal representatives may be,
assigned by him with the assent of the insurers, and the rights of the
assignee are paramount to the claims of the heirs or personal representa.
tives of the assured. Robinson v. Hurst, 266.
18. LIFE INSURANCE PAYABLE TO HEIRS. The proceeds of a policy of life
insurance made payable to the "heirs" of an insured husband go to
his widow and children, in the proportions provided by the statute for
the distribution of the personal estates of intestate decedents. Leavitt
▼. Dunn, 402.
16. INSURANCE AGAINST ACCIDENT-JURY TRIAL.-Though the evidence
tends strongly to the inference that an assured when injured by an acci
dent was incurring a risk prohibited by the policy, yet the court will
not instruct the jury, as a matter of law, to find for the insurer, if it is
conceivable that he was injured while not incurring such risk. Am
thony v. Mercantile etc. Acc. Assn., 367.
17. ACCIDENT-BURDEN OF PROOF.-Under a policy agreeing to pay a
specific sum on proof of the death of the insured from bodily in-
juries effected through external, violent, and accidental means, pro
vided, always, the death shall not have been produced by any of various
acts enumerated in the policy, the burden of proof that the death arose
from one of the excepted causes must be assumed by the insured, after
the plaintiff has established death from accident. Anthony v. Mercantile
etc. Acc. Assn., 367.
Bee CONFLICT OF LAWS, 2; CONSTITUTIONAL LAW; SUBROGATION,
1. DELIVERY OF TELEGRAPH MESSAGES.-A state statute making it the
duty of every telegraph or telephone company to deliver with prompt-
ness every message received to the person to whom it is addressed, if
the regulations of the company require such delivery, or to forward
it promptly as directed, and providing a penalty for every failure to
deliver or forward such message as promptly as practicable, such penalty
be paid to the person sending the message or to the person to whom it
is addressed, is not void, as imposing a burden upon, or as a regula-
tion of, interstate commerce, when applied to the failure of an inter-
state telegraph company to deliver in that state a message sent from
another state, and deliverable in the former state. Western Union Tel
Co. v. Tyler, 910.
RIGHT TO TAX TRADES.-A state may tax trades, professiors, and avoca-
tions carried on within its borders, although the goods dealt in are
manufactured in another state. State v. Gorham, 494.
& LICENSE TAX.-One acting as agent for the sale and delivery in one
state of the manufacturers of lightning-rods made in another, who,
after receiving the rods in bulk, breaks the original package for dis-
tribution to his customers, and puts up the rods without extra charge
whenever a purchaser requests it, is an itinerant putting up lightning.
rods within the meaning of a statute of the former state, providing for
a license tax on such itinerant, and the imposition of such license tax
on such agent is not the imposition of a burden on interstate commerce.
State v. Gorham, 494.
1. THE INTEREST IN THE MATTER IN LITIGATION WHICH WILL ENTITLE
▲ PARTY TO INTERVENE in an action must be that created by a claim
to the demand, or some part thereof, or a claim to a lien on the
property or some part thereof, which is the subject of the litigation.
McClurg v. State Bindery Co., 799.
2 AN ASSIGNER FOR THE BENEFIT OF CREDITORS of an insolvent corpora-
tion has no right to intervene in an action pending against the corpora-
tion at the date of the assignment if his only purpose is to contest the
liability of the assignor. McClurg v. State Bindery Co., 799.
See CRIMINAL LAW, 5; HOMICIDE, 8–11..
1. PRESUMPTION IN FAVOR OF.-Though the jurat to an affidavit for a
warning order is not signed by an officer, the judgment will not be
treated as void on a collateral attack if there is a warning order in due
form. It will be presumed in favor of the judgment that the oath was
properly administered, but that the officer carelessly omitted to sign
his name to the formal certificate of what he had done, or that another
and perfect affidavit had been made upon which the action of the clerk
had been predicated. Sears v. Sears, 213.
2 ABSENCE OF RECORD AND Loss of Original Papers-PRESUMPTION AS
TO VERDICT And Judgment.-If it appears from entries on the docket
and minutes of the court that a case had been twice continued, that a
verdict and judgment had been entered therein, that a motion for a
new trial had been made and overruled, and that an execution in favor
of the plaintiff had been issued and levied, it will be presumed, after a
long period of time has elapsed, that a declaration was filed, and that
the proper verdict and judgment were rendered, although the orig-
inal papers are not to be found in the clerk's office, and no record of
the case appears in the record of writs. Wiggins v. Gillette, 123.
& VERDICT AND Judgment-WorDS "AS TAX-COLLEctor," When Merely
DESCRIPTIO PERSONE.-In an action for damages against a tax-collector
for wrongfully coercing a party not liable for a tax to pay it, the ver
dict and judgment are not vitiated by the words "as tax-collector,"
following the name of the defendant therein, as such words are merely
descriptive of the person, and have no other legal effect. Stewart v.
Atlanta Beef Co., 119.
RES JUDICATA.-IF A JUDGMENT MAY HAVE BEEN BASED UPON EITHER
OF TWO OR MORE ISSUES presented in the pleadings it is not conclusive
upon either unless evidence is received to show which issue was in fact
determined as the ground of the former adjudication. Uncertainty as
to what was in fact decided is material to the use of a judgment as an
estoppel. Fahey v. Esterley Machine Co., 554.
RES JUDICATA.-WHEN A COURT HAS JURISDICTION IT HAS THE RIGHT
TO SETTLE EVERY QUESTION which occurs in the cause, and, whether
its decision be correct or not, its judgment, until reversed, is regarded
as binding in every court. Barrick v. Horner, 283.
& RES JUDICATA.-A DECREE DETERMINING that the mortgage debt has not
been paid, and that the executors of a certain decedent have power to
make the sale authorized by the mortgage, is conclusive of the exist
ence of such power in such executors. Barrick v. Horner, 283.
7. A JUDGMENT OF A COURT OF COMPETENT JURISDICTION IS CONCLUSIVE
As against parties and privies on all questions adjudicated by it. Bar
rick v. Horner, 283.
8. A JUDGMENT FOR A PART OF ONE ENTIRE DEMAND is a conclusive bar
to any other suit for another part of the same demand. Bullard ▼.
Thorpe, 867.
- To attack a judgment for invalidity shown
by the record itself does not constitute a collateral attack though not
in a direct proceeding to reverse, annul, or set aside such judgment.
Bailey v. Bailey, 713.
10. COLLATERAL ATTACK.-To attack a judgment for invalidity, though
not in a direct proceeding to reverse, annul, or set it aside, and which
is shown by the record itself to be infirm, does not constitute a col-
lateral attack upon such judgment. Woods v. Bryan, 688.
11. VOID CONFESSION - COLLATERAL ATTACK. - The institution of an ac
tion of foreclosure against the mortgagor and a claimant of his title
under a sheriff's sale, made under a prior confessed judgment against
the mortgagor, and in which it is alleged that such judgment is void,
cannot be regarded as a collateral attack upon such judgment where
it appears from the record to be void for noncompliance with the
statutory requirements. Such a judgment is not entitled to any recog
nition, and may be disregarded as a nullity whenever and wherever
it is encountered in any proceeding, direct or collateral.
Woods v.
Bryan, 688.
12 JUDGMENT BY CONFESSION-STATEMENT OF INDEBTEDNESS.-Under a
statute requiring a statement of the facts out of which an indebtedness
arose, there is no authority, in an action upon a note, to enter a con-
fession of judgment, where the note is merely described, but such
statement is not made. As to third persons, such a judgment is void.
Woods v. Bryan, 688.
12. JUDGMENT BY CONFESSION, VOID, IS NOT MADE VALID BY RENEWAL OF
EXECUTION OR REVIVAL OF JUDGMENT.-A confessed judgment, void
because it does not comply with the statutory requirements, cannet,
by successive renewals of the judgment, under orders of court, be
made valid and binding as against a subsequent mortgagee who was
not a party or privy to such proceedings. Woods v. Bryan, 688.
14 ESTOPPEL.-WHERE IN AN ACTION BY THE HOLDER OF A NEGOTI
ABLE NOTE the defendant pleads that it was given upon a purchase
of certain property by him, and that he has rescinded the contract
of purchase because of a breach of warranty, and judgment is en-
tered in favor of the plaintiff, such judgment is not conclusive against
the defendant in another action that there was no breach of warranty,
because though the breach had been proved in a former action, still the
judgment might have been in favor of the plaintiff on the ground that
he was an indorsee of the note before maturity in good faith, and there-
fore could not be prejudiced by defenses existing against the original
payee, Fahey v. Easterley Machine Co., 554.
JUDICIAL NOTICE
See EVIDENCE, 1–3.
1. A JUDICIAL Sale will be Set Aside and ITS CONFIRMATION REFUSED
at the instance of a purchaser, on the ground that the court by which
it was ordered was acting beyond its jurisdiction. Hamilton v. Traber,
258.
FAILURE OF CONSIDERATION AS A DEFENSE. -The equity of the par-
chaser at a judicial sale to relief by reason of the failure of consid-
eration can be set up only as a defense to an action for the purchase
money, and such defense can be considered only where the sale was
not under compulsory process, as in partition cases. It will not be
considered, in the absence of fraud or misrepresentation, where the
sale was made under compulsory process, as where it was made to pay
debts. Latimer v. Wharton, 739.
3. FAILURE OF CONSIDERATION INJUNCTION-PLEADING. -If the pur-
chaser of land sold at a judicial sale for the purpose of paying the debts
of a testator gives a bond and mortgage for the purchase money;
if, upon default in payment, he is sued, but fails to plead failure of
consideration in defense, and judgment is obtained; and if, before
payment, the land so purchased is recovered by title paramount, and
execution on such judgment is levied on other property of the par-
chaser, an injunction will not issue to enjoin a sale under such levy
upon the complaint of the purchaser who makes no allegation of fraud
or misrepresentation by which he was induced to accept the deed to the
land, enter into possession thereof, or execute the bond and mortgage
given to secure the credit portion of the purchase money. Latimer v.
Wharton, 739.
VOID JUDICIAL SALE-SUBROGATION.-If a bona fide purchaser at a void
judicial sale, under foreclosure proceedings, pays his bid, and the money
is applied to the payment of the mortgage debt, he is, to that extent,
subrogated to the rights of the mortgagee. Bailey v. Bailey, 713.
|