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lawful in its inception, and npon which large sums of money have been paid for
premiums, is not dissolyed by war between the States. The contract remains.
The remedy, simply, is suspended, but revives with the return of peace, lb,

6. MueeUane<m9,

148. For benefit of wi£i. On the application of a wife, a policy of insurance
on the life of her husband was issued for her sole benefit, and, in the event of
her death before her husband, for the benefit of her children. The wife hav-
ing died leaving children, the husband surrendered the policy to the company
and procured another, likewise on his own life, for the same amount at the
same premium, ante-dated to correspond with the date of the former policy,
and made payable solely to himself. The husband soon died. Held, that the
children were equitably entitled to the proceeds of the substituted policy as
against the creditors of the husband. 1860. Chopin v. Fellowea (86 Conn. 182),
IV. 49.

149. A life insurance policy, taken out by a husband on his own Ufe for

the benefit of his wife, is assignable during his life, with her consent, as col-
lateral security for his debts where there Is no statute directly prohibiting it,
and she is debarred, by the assignment, from recovering the proceeds of the
policy. 1871. Charter Oak Life Ins. Co. v. Brant (47 Mo. 419), IV, 828.

160. Rights of pledgee of poUoy. A resident of Illinois insured his life
with a company chartered in Massachusetts, by a policy payable to his repre-
sentatives or assigns, and conditioned to be void if assigned without the written
consent of the company, which jiolicy he afterward delivered, without the com-
pany's consent, to the plaintiff, a resident of Massachusetts, as security for a
debt. Upon his death, an administrator of his estate was appointed in Dlinois*
and afterward, the debt being unpaid, the plaintiff was appointed ancillary
administrator in Massachusetts. The principal administrator sued the insurers
upon the policy in Illinois, and their agent duly accepted, in pursuance of a
State statute, service of the summons and of an injunction not to pay the policy
to the creditor. The plaintiff, as ancillary administrator, then sued on the
policy in Massachusetts, and the insurers in answer admitted their liability,
and expressed a willingness to pay the policy to the person entitled. Seld,
that the pendency of the first suit was no bar to the second, and that the
plaintiff could recover the amount of the policy in preference to the principal
administrator, inasmuch as he represented the equitable interest and posses-
sory right of the pledgee of the policy. 1869. MerriU v. Ifew England Mut*
Ufs Ins. Co. (108 Mass. 245), IV, 548.

161. Or6ditox*8 right to pirooeeds. A policy of insurance on the life of B.
was made payable to M., who held it for the benefit of a creditor of the insured,
although without the knowledge of the creditor. B. having died, held, that an
action lay against M. by the creditor for so much of the proceeds of the jiolicy
as would satisfy the debt 1871. jETu^eAtn^t v. JfiiMr (46 N. Y. 456), VII. 869.



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212 INSURANCE.

162. AottoQ — partias. A pollcj of life insurance provided that in case of
the death of the assured " the amount of said insurance shall be payable to
their children for their use. or their guardian, if under age." Held, that an
action on the policy was well brought by the guardian ad Utem of the children,
being under age. 1871. Price v. PJumia Mutual Life Jm. Go. (17 Minn. 497).
X,166.

v. MABmi mSUBAKCB.

163. Policy. A policy of insurance against all marine risks is just as bind*
ing and effectual as if the risks are spedfled in detail 1868. Parkhwnt ▼.
Qloueeit&r Mutual FUMng Insuranee Co. (100 Mass. 801), 1, 105.

164. Barratry. Those risks include barratry of the master and mariners;
and it is immaterial that the assured was the owner of the vessel and appointed
the master and mariners, lb,

166. Insurabls interest— mortgagee. The mortgagee of a vessel has an
insurable interest, distinct from that of the owner, and can recover upon an
insurance against barratry of the master, " unless the insured is owner of the
vessel," even where the loss occurs by reason of such barratry. 1868. Clark
y.WaehingUm Insuranee Co. (100 Mass. 509), 1, 185.

166. Time poUoy. In an action on a policy of marine insurance on a vessel,
effected April 9, 1866, " for one year from March 14, 1866, at noon," it appeared
that the agent of the company, for receiving and forwarding applications, in
his letter of April 9, stated that the vessel " was at Gibraltar " March 14. Meld,
that the statement of her whereabouts was immaterial. 1871. Vifforeaux v.
Lime Bock Insurance Co. (59 Me. 457), VTH, 438.

167. Under a time policy of marine insurance, it is immaterial where

the vessel may be at the inception or termination of the risk. lb.

168. Port of discharge. A vessel arrives at a " port of discharge," when
she arrives at any place at which it is usual to discharge cargo, and to which
she is destined for the purpose of discharging cargo. Upon her arrival at that
place, a policy, insuring her until arrival at a *' port of discharge," terminates,
and cannot be extended or revived after she has discharged part of her cargo
there, by her removal to another port, or to another place in the same port,
either for the purpose of discharging the rest of her cargo, or for any other
purpose. 1870. Bramhall v. Bun Mutual Insurance Co. (104 Mass. 510), VI,
261.

169. Prohibited port. An insured vessel was sailing toward a prohibited
port with the intention of entering, when she was lost at sea. Hetd, that the
policy was not avoided. 1872. Snow v. The Cohmbia Insurance Co. (48 N. T.
624). Vra, 578.

160. A warranty not to use a certain port means not to go into it ; an

intention to use a prohibited port does not violate the policy. lb,

161. A marine insurance company issued its policy on plaintiff's vessel,

containing a clause as follows: "Prohibited from the river and golf of St.
Lawrence, Northumberland straits, or Oape Breton, and Black sea, between
October 1 and May 1." The vessel was in one of the prohibited ports in March,



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INSURANCE. 213

Boon after the insarance was effected, and was lost at sea many months after-
ward. Hddy that the implied warranty of the dause contained in the policy
had been broken, and plaintiff could not recover. 1869. Odume v. Ifeto Eng-
land Mut, Ina, Co. (101 Mass. 551), III. 401.

162. Deviatioii. A policy of insarance was issued on a vessel underling
repairs in New York, " at and from New York to Havana." On the completion
of the repairs, the vessel went on a trial trip to Elizabethport, sixteen miles
distant, and to take in coal. She return^d to New York, and sailed thence to
Havana. Meld, a deviation so as to avoid the policy. 1872. Femandet v. The
Great Wettern Insurance Co. (48 N. Y. 571), VIII, 671.

163. On a passage. A vessel insured for a year by a policy containing the
provision that if she was '* on a passage at the end of the term " the risk was
to continue until her arrival at port of destination, sailed from the Chincha
Islands for the Canary Islands, put into Callao, on the mainland (which is the
port of entry for the Chinchas), for the necessary clearance, water and crew for
her further voyage." While there the year expired. Meld, that she was not
" on a passage " within the meaning of the policy. 1869. Wash. Ins. Co. v.
White (108 Mass. 288), IV, 548.

164< Abandonment. To warrant the abandonment of a stranded vessel as
a total loss, it must appear, to the satisfaction of the jury, that the delivery of
the vessel from the peril was, upon reasonable grounds, judged to be imprac-
ticable, or not to be effected unless at an expense that would absorb all her
value. 1870. CopMin v. The Phanix Insurance Co. (46 Mo. 211), II, 504

166. The owner of a vessel, abandoned as a total loss, is not bound to

receive her from the underwriters if there is any material deficiency in her
repairs, nor unless she be repaired and returned within a reasonable time. lb.

166. A policy of marine insurance was issued on merchandise against

" perils of the sea," " free of particular average only." The vessel was subse-
quently wrecked, and with the cargo was abandoned by the master in good
faith ; but the insurers refused to accept the abandonment, and afterward
recovered from the wreck some of the cargo. Meld^ that, as the loss was total
to the insured, they were entitled to recover on the policy. 1870. WaU&rstein
V. Colombian Insurance Co. (44 N. Y. 204), IV, 664.

167. Ziom — whMA is maiuraro pf damage. In an action on apolicy of marine
insurance issued upon a cargo of com, it appeared that only a portion of the
com was damaged. Held, (1) that, by the terms of the policy, loss, if any,
being ** payable to the Bank of Montreal in funds current in the city of New
York," the premium on gold should not be allowed in estimating the amount
to be paid by the insurers ; (2) that the measure of damages, in such cases, is
not the difference between the market value of sound and damaged com, but
such a proportion of the valuation fixed in the policy as the difference between
the market value of sound and damaged com bears to the market value of
sound com ; (8) that charges for surveys, inspection and sale at auction, being
reasonable, are part of the loss ; and (4) that amounts paid for insurance while
retaining the cargo in store, and charges for storage, being unreasonable, are



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214 mSUEANOE.

not part of the loss. 1870. Lamar Iruuranee Co, y. McOUUhen (54 HI 518),
V, 162.

168. In oompatlng a partial loss, returned duties receiyed by the insured
from the custom-house are not to be deducted from the amount to which the
insurers are to contribute. 1871. Ccry ▼. BayUton Fire 4b Marine Inturanee
Co, (107 Mass. 140), IX, 14.

169. A warranty " that the vessel be commanded bj a captain holding a
certificate from the American Shipmasters' Association/' means a valid and
subsisting certificate. 1868. McLoon v. Commercial Imuranee Co, (100 Mass.
472), 1, 129.

170. Warrlmty against lading — dunnage A polii^ of insurance upon a
ship contained the clause : " Warranted not to load more than her registered
tonnage/' with certain specified articles, including coal. Held, that the war-
ranty was not broken by taking on board, besides the amount limited as a
cargo, a quantity of coal as dunnage, that being a suitable article for the pui^
pose, and it appearing that it was so used in good faith, and no more than waa
necessary, even though freight was received for its carriage. 1869. Thmng
V. Gfreat Weetem Inmranee Co. (108 Mass. 401), IV, 567.

171. Bursting of boilers. A poli<^ of marine insurance expressly excepted,
from the perils insured against, '* damage that might be done from the burst-
ing of boilers/' but provided that only "loss or damage occurring subsequent
to and in consequence of the bursting of boilers is covered by this policy."
The boiler Of the vessel burst and she was immediately submerged. Held,
that, as the vessel was rendered worthless the moment the rents and apertures
were made, the policy did not cover the loss. 1870. Evans v. The Columbian
Ineurance Co. (44 N. Y. 146), IV, 650.

172. Leakage. A policy of marine insurance on champagne wine provided
that the insurers should not be liable for leakage, unless occasioned by strand-
ing or collision. Held, that the insurers were exempt from liability for all
leakage, ordinary or extraordinary, and from whatever cause, whether gradual
or violent in its operation, except those specified. 1871. Cory v. Boykton Fire
and Marine Ineuranee Co. (107 Mass. 140), IX, 14.

173. Dampness — oontaot with sea wator. In a policy of marine insurance
on champagne wine, valued by the case, it was provided that the insurers
should not be liable *' for damage or injury to goods by dampness, rust, change
of flavor, or by being spotted, discolored, musty or mouldy, unless the same be
caused by actual contact of sea water with the articles damaged, occasioned by
sea peril." Held, that so far as the sea water came into actual contact with any
case or package, the insurers were liable for any injury occasioned, either by
such direct contract or by any heat or dampness thereby generated, but not for
any injury by dampness, or change of flavor to other packages, no part of
which came into actual contact with the sea water. lb,

174. Under the suing and laboring clause in a policy of marine insurance
the underwriters are liable for a proportion of any reasonable expenses incurred
in preserving the property from the operation of the perils insured against



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mSUEANOE — INTEREST. 215

but not for expenses of ascertaining the amount of the loss, nor for expenses
of refitting the property for market. 1871. Cory ▼. BoyUion Fire and Marine
iMuranee Co. (107 Mass. 140), IX, 14.

175. Freight insurance. A vessel, under a policy of freight insurance, while
on her voyage was disabled, unloaded her cargo and was laid up for repairs,
but winter set in and she was unable to proceed on account of the ice, where-
upon the master voluntarily surrendered the cargo, free of freight, to the
underwriters of the shippers. Held, that the free surrender was premature
and that no recovery of freight-money could be had on the cargo thus surren-
dered. 1871. AUeny.MereaniOe Mutual Ineurance Co, (Ul!^.Y,^^,TV,7W.

176. Subrogation. Where a loss, partially covered by insui|moe, is occas-
ioned by a wrong-doer, the insurer, after paying the insurance, is, in a proper
case, entitled to be subrogated quoad hoc, to the right of the assured against
the wrong-doer. If the assured sustains a loss beyond the amount of the Insur*
ance, he has a right to have it satisfied by an action against the wrong-doer.
And if, in such action, there comes into his hands any sum for which he ought
to account to the insurer, re-imbursement will, to that extent, be compelled in
an action by the latter. But the assured will not be required to account for
more than the surplus remaining in his hands, after satisfying his own excess
of loss, in full, and expenses incurred, unless the insurer shall have con-
tributed to, and joined him in the prosecution. 1872. Jfewcomb v. Cineinnaii
Insurance Co. (23 Ohio St. 882), X, 746.

177. Action by oomiMmy as assignee of biH of lading. A's property, which
was insured by B, an insurance company, was lost while being transported
upon the Mississippi river. A, for the purpose of effecting a settlement with
B, assigned to the latter the bill of lading and his claim against the owner of
the vessel occasioning the loss. Held, that B could maintain an action as
assignee and in his own name against the owner ; and that the unseaworthi-
ness of the vessel and the doubtful liability of the plaintiffs on the policy
would not invalidate the assignment or affect the right of plaintiff to recover.
1871. Rrnie Insurance Co. v. Northweetern Packet Co. (82 Iowa, 228), VII, 188.

See RsKOYAL of Cause.

INTEREST.

1. In action against carrier. In case of loss for which a carrier is found
liable interest is recoverable upon the value of the property from date of loss.
1869. Mote v. Chicago, etc., R. B. Co. (27 Iowa, 22), 1, 212.

2. Administraton will be charged interest in case of unnecessary delay in
settling the estate ; and compound interest in case Ihey use the funds in private
specuUtion. 1870. Johnson v. ffedriek (89 Ind. 129), V, 191.

3. Daring civil war. Interest continues to run in time of civil war on debts
due from a citizen of one belligerent to a citizen of the other. 1870. Spencer
V. Brou>&r (82 Tex. 668), V, 254, but see note, 266.

4. On coupons. Interest, by way of damages, is recoverable upon the over-
due coupons or interest warrants of railroad bonds, from the time of demand



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216 INTEREST— JUDGE.

and ref oBal of pajinent. 1864. WhUaker ▼. Bartfcrd, «fo., & J2. Cb. ^ B. I.
47). V, 547.

6. Act imposiiig intereit on prior debts ▼oid. An act providing that debts
not theretofore bearing interest shall bear interest, is Toid so far as it relates
tp debts contracted before its passage. 1868. Goggam ▼. Tum/^9e€d (1 S. C.
N. S. 80), VU, 28.

6. Interest on interest When a promissory note is given, with a Bt^>ala-
tion that the interest is to be paid annnally or semi-annnally, the mak» is
chargeable with interest at the like rate upon each deferred payment of inter-
est, as if he had given a promissory note for the amount of sach interest. By
this mode of ccmipatation compound interest is not given, but a middle course
is taken between simple and compound interest. 1873. Bledsoe v. Ifixcn (69
N.C.89),XII,643.

See Bills ahd Notes : Baitks aitd BANKCRe ; Pabthiership.

INTEBNAL REVENUE.

1. Penalties. Under the United States Statutes of 1862, ch. 119, § 31 , or 1864,
ch. 173, g 41, an informer cannot sue an internal revenue collector, in a State
court, for a share of a penalty paid to the collector, unless the penalty has been
recovered by a judgment of a United States court. If a penalty is paid by
compromise or agreement, before final judgment, neither of these statutes gives
an informer any share therein. 1870. Biee v. Thayer (106 Mass. 258). VII, 516.

2. Uen for. The fixtures and furniture of the tenant of a distillery, upon
which the United States had a lien, were sold under an execution issued on a
judgment obtained against him by a creditor in a State court. Mold, that the
property was not sold subject to the lien, but that the lien was to be first dis-
charged. The lien of the United States on the proceeds is superior to that
of the judgment creditor or of the landlord for rent. 1871. Dungan*» Appeal

(68 Penn. St. 204), VIII, 169.

See Sale.

INTERNAL REVENUE STAMPS — .8^ Stamps.

INTERNATIONAL LAW — Sw Wab.

INTOXICATING LIQUOR— ^ Jury.

JAILER — See Escapb.

JETTISON — iS^ Ship and Shippino.

JUDGE.
A judge of probate appointed his wife's brother administrator of an estate
of which her father was a principal creditor. HM^ that the Judge was
disqualified by personal interest, and that the appointment was Toid. 1870.
BtU V. TJuiy&r (105 Mass. 219), VII, 518.



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JUDICIAL NOTICE— JUDGMENT. £17

JUDICIAL NOTIOt

1. The statata of another State must be Introduced in evident e ; a court will
not Uke judicial notice of it. 1870. Hunt t. Johnson (44 N. Y. 27), IV, 681.

2. Courts will take judicial notice of acts creating municipal corporations.
1871. PreU v. McDonald (7 Kans. 426), XU, 423

JUDGMENT.
I. Op akothsr statb.
n. Actions on.

III. Miscellaneous.

IV. Against icakried woman — Ses Marriage.
y. In criminal cases — See Criminal law.

I. Of another state.

1. A Judgment of another State cannot be impeached hj showing irregu
laritj in the forms of proceeding, or a non-compliance with some law of the
State where the judgment was rendered relating thereto, or that the decision
was erroneous. Jurisdiction confers power to render the judgment, and it will
be regarded as valid and binding until set aside in the court in wliich it was
rendered. 1871. Kinnier v. Kinnier (45 N. T. 585), VI, 182.

2. But the record of such judgment may be contradicted as to the facts

necessary to give the court jurisdiction, and if it be shown that such facts did
not exist, the record will be a nullity, notwithstanding it may recite that they
did exist 1872. Marx ▼. Fore (51 Mo. 69), XI, 482 and note; Hoffman y. Hoff
man (46 N. Y. 80), VH, 299 ; PeopU v. DaweU (25 Mich. 247). XII, 260.

3. In a suit brought upon a judgment rendered in another State, the

record of which showed that the defendant appeared and pleaded therein,
defendant set up an answer that he was never served with process in the
original action, did not know of the action, and did not authorize any one to
appear for him, and that he had a good defense to such action upon the merits.
EM (Wagner, J., dissenting), that the answer was good. 1872. Marx v. Fore
(51 Mo. 69), XI, 482, and noU, 485.

^ Judgments in divorce suits, as in other cases, may be impeached and

set aside for fraud. 1871. ^donu v. ul({af7M (51 N. H. 888), Xn. 184.

6. how 6ar concluslTe. The courts of the State in which a judgment of

a court of another State is sought to be enforced have a right to inquire how far
the judgment presented may be conclusive in the State in which it was ren-
dered. And in determining this question the courts of this State will require
that the whole record of the proceedings be produced under which the judg-
ment was obtained, in order to show how far it may be conclusive. 1871.
McLaren db Co, v. KM&r (28 La. An. 80), VIII, 591.

6. If a judgment of the inferior jurisdiction of another State has been

appealed and the Supreme Court has pronounced a final judgment thereon, and
the judgment or demand passed upon is sought to be enforced in this State,



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218 JUDGMENT.

the reooTd or prooeedings of the Supreme Court, being the final judgment in
the cause, is the proper transcript to present to enable the courts of this State
to ascertain how far it is conclusive in the State where it was rendered, lb.

7. Although a judgment of a court of another State, between the same

parties, upon the same cause of action, upon the merits, is conclusive, yet, to
conclude the parties, it must be a definite judgment on the merits only ; not a
mere interlocutory order, made upon a special application, and not settling and
adjudging finally the rights of the parties. 1872. * Brinkley v. Brinkley (50 N.
Y. 184), X. 480.

8. Judgment in rem. A judgment, rendered in another State in a proceed-
ing in rem where the defendant is at the time a resident of this State, and has
not been served with notice of the pendency of the action, and has not appeared
therein, has no binding force or effect upon the defendant in personam, so that
an action can be maintained thereon in this State to recover the amount of
the judgment. 1871. Melhop v, Doane (81 Iowa, 897), VU, 147.

9. But where property of a defendant residing in this State, who was

not personally served and who did not appear, has been seized and sold in satis-
faction of a judgment rendered in a proceeding of attachment in another State,
he is concluded from recovering the value thereof in an action in this State
against the plaintiff in the foreign judgment, unless in a proper case he can
show that it was procured through fraud. lb,

n. Actions on.

10. action on. An action may be midntained on a judgment rendered

in another State, notwithstanding an appeal from such judgment is pending.
1870. Taj/lor v. Shew (39 Cal. 586), U, 478.

11. Plaintiff recovered judgment in Louisiana against the defendant,

and on this unsatisfied judgment, again recovered judgment in New York.
After the recovery of the first judgment, the judgment debtor in New York
made a voluntary conveyance to his son of land owned by him in Texas ; and,
pending the suit in New York, the son, without consideration, conveyed said
land to a stranger charged with notice of all the facts. All of the parties were
non-residents. This action was commenced on the New York judgment by
attachment, to set aside the conveyance and to subject the lands to the payment
of the claim. Held, that the action was properly brought, and that the plain-
tiff could maintain the action without first recovering judgment upon such
demands in an independent action brought in a court of this State. 1870.
Ward V. MeKemne (88 Tex. 297), VII. 261.

12. -; — bar to action on same demand. Plaintiff had a valid, unsatisfied
judgment in another State, which defendant had not attempted to avoid. He
sued on the original demand, and defendant plead the judgment in bar.
Held, that the plaintiff could not recover. 1870. Henderson v. Staniford (105
Mass. 504), VII, 551.

13. To an action on a Judgment, accord and satisfaction is a good defense
1872. aaoage v. Everman (7a Penn. St. 815), X, 676.



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JUDGMENT — JUfilSDICTION. 219

IIL MlSCELIiAl^BOUB.

14. A Judgment againit an adminlitrator, in the form that " plaintiff have
and recover from the defendant's administrator" the sum adjudged, is sulfi-
dent, although the better mode would be to have added the words, ** to be
levied of the goods and chattels of his intestate, in his hands to be adminis-
tered." 1870. Quice v. SeOwi (48 Miss. 62), V, 476.



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 28 of 51)