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Vol. I.)

DIGEST OF CASES.

[No. 5.

EVIDENCE. 1. PAROL TESTIMONY is admissible to establish the existence of a waiver of condemnation, which had been a record and become lost. Hamberger v. Brooker, Leg. Chron., March 28, 1874.

2. OBJECTION TO THE INTRODUCTION OF EVIDENCE must be specifically taken at the trial. Gardiner v. Schmaelzle, Pac. Law Rep., March 10, 1874.

3. WHERE THE PLAINTIFF IN EJECTMENT claimed title to a lot of land under a deed executed by authority of a power of attorney to sell “all lots now unsold : Held, that the power of attorney was admissible in evidence without proof that the lot was unsold. Ib.

4. AFFIDAVIT OF DEFENCE. Statements on information made in an affidavit of defence should be averred to be believed by the defendant. Cake v. Stidfole, Leg. Chron., March 28, 1874.

See LIFE INSURANCE, 5; PLEADING AND PRACTICE, 3.

INSURANCE. 1. AN ASSIGNMENT OF A POLICY was absolute in form, passing the title unconditionally; but the receipt for the assignment contained the clause, “ Said assignment to be null and void upon the payment of said note at its maturity, otherwise to continue for the sole benefit of W." Held, that this contract was a mortgage and not a pledge, and as the note was not paid at maturity, the policy became the absolute property of W. Dungan's Adm'x. v. Mút. Benefit Life Ins. Co., Ins. L. J., February, 1874.

2. WARRANTY. — A discrepancy appeared between the representations made in the policy and the statements in the proofs of loss, and defendant claimed that the proofs of loss were conclusive evidence against the plaintiff that the warranty was broken. Held, that the representation as to the occupancy of the building was a warranty, and if broken avoided the policy.

Held, that the plaintiff was not estopped by the statement in the proofs of loss from showing that the warranty was not broken, and that evidence as to the fact of the occupancy of the building was properly admitted. Parmelee v. Hoffman Ins. Co., Ins. L. J., February, 1874.

3. CHANGE OF TITLE IN PROPERTY INSURED. Personal property insured by the defendants was sold by the insured during the life of the policy to the plaintiff, and the policy delivered to him. The policy contained a condition that if any change took place in the title to the property, by transfer or otherwise, the policy should become void. The plaintiff, to secure the protection of his interest by the insurance, carried the policy to an insurance broker to have whatever was necessary for the purpose done. The broker wrote in pencil on the back of the policy, * Privilege to use kerosene oil for lights — Loss, if any, payable to Charles Batchelor — Transfer," and sent it to the defendants.

The secretary of the company read the memorandum, and wrote in the policy the following: “ July 19, 1867. Privilege to use kerosene oil for lights. Loss, if any, payable to Charles Batchelor.” This he signed in his official

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DIGEST OF CASES.

[No. 5.

character, affixed to the policy a fifty cent revenue stamp (required by law for a new policy, but not necessary for the indorsement actually made), and sent the policy back to the broker, who delivered it to the plaintiff. Before the term of the insurance expired the entire property was burned. Held, that the word “ Transfer,” in the pencil memorandum, was an important word, having a distinct meaning, and must be regarded as conveying notice to the defendants of whatever it would in the circumstances reasonably import.

Held, that the only sensible meaning that could be given to it in its connection, and in view of the use of the same term in the condition of the policy, was, that the property had been transferred to the plaintiff.

Held, that the defendants, by returning the policy to the plaintiff with the loss made payable to him, and by affixing the stamp required for a new policy, were to be regarded as having assented to the transfer of property to the plaintiff, and made the policy an operative one for his benefit.

The plaintiff offered to furnish the defendants with formal proof of the loss, but they informed him that they denied his right to recover for the loss, and that they should not receive any proofs made by him as sufficient. Held, to be a waiver of the proof. 'Batchelor v. Peo. Fire Ins. Co., Ins. L. J., February, 1874.

4. LIBEL BY INSURER. In case of a total loss of a cargo by collision, a libel may be brought by the insurer against the colliding vessel, after notice and proof of the loss and demand of payment, though without actual payment. Traders' Ins. Co. v. Propeller Manistee, Ins. L. J., February, 1874.

5. WHEN WILL LIE, THOUGH LOSS NOT ACTUALLY PAID. The insured having been fully satisfied for the loss, and not intervening or opposing the prosecution of the libel of the insurer, the carrier cannot be permitted to raise the objection of non-payment of the loss before libel brought. 16.

6. POLICY ISSUED IN DISREGARD OF STATUTORY REQUIREMENTS. — Where the statutes of a state require foreign insurance companies to comply with certain requirements, and declare penalties for doing business in disregard of these requirements, in case of a loss on a policy issued in disregard of such requirements, a carrier cannot be permitted to make this a defence to a libel, the loss having been paid by the company. lb.

7. NOTICE OF LOSs. — Notice not given till eighteen days after loss. Held, not reasonable. Trask v. Insurance, 5 Casey, 198, followed and criticised; Edwards v. The Lycoming Mut. Fire Ins. Co., Leg. Int., March 27, 1874.

8. CONTRACT OF INSURANCE. - Held, that in an action against an insurance company to compel it to issue a policy upon an alleged contract of insurance, there must be conclusive proof that such contract was actually made. McCann v. Ætna Ins. Co., Ins. L. J., February, 1874.

9. Held, THAT DUE NOTICE OF LOSS and statements supported by affidavits are conditions precedent to recovery. 16.

10. FRAUD.-INSURABLE INTEREST. -PREMIUMS. – The defendants, through R., their local agent, issued a policy of insurance for $10,000 on the life of L., a brother of the plaintiff, for the benefit of and payable

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DIGEST OF CASES.

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to the plaintiff. By a secret arrangement between R. and the plaintiff, R. advanced $525 toward the payment of premiums, and agreed to advance the subsequent premiums, the amounts so advanced to be refunded by the plaintiff ; and it was further agreed that R. should assume the policy if requested by the plaintiff within three years, and refund to him the amount of premiums paid by him with interest, and should receive $1,000 of the sum insured, if paid by the defendants, in case L. should die within three years. L. did not know of the existence of the policy, and was not examined by a physician as the rules of the defendants required, and the plaintiff had no interest in his life except such as arose from the relationship between them. The defendants were ignorant of all these facts. In the application for insurance the plaintiff stated that he had an interest in the life of L. to the full amount of insurance applied for.

The defendants having cancelled the policy, in an action to recover the amount of premiums paid, Held, that the transaction between the plaintiff and R. constituted a fraud upon the defendants, to which the plaintiff was a party in contemplation of law, and that the defendants could take advantage of the fraud as well against him as against R., although the plaintiff did not actually participate in the fraudulent intent.

Held, that the mere relationship between the plaintiff and L. was not such an interest as would support the policy, but that the policy was prima facie valid, and could only be avoided by showing by parol evidence such want of interest, and that the plaintiff was now estopped from averring such want of interest against the defendants.

Held, that the responsibility assumed by the defendants, and the risk and inconvenience to which they were exposed by the acts of the plaintiff, constituted a consideration for the premiums paid. Lewis v. Phoenix Mut. Life Ins. Co., Ing. L. J., February, 1874.

See LIFE INSURANCE.

JUDICIARY ACT. 1. CIRCUIT COURT. - Original cognizance of all suits of a civil nature, , at common law or in equity, is vested in the circuit courts by the eleventh section of the judiciary act, concurrent with the courts of the several states, subject to certain limitations, conditions, and restrictions. Grover & Baker Sewing Machine Co. v. Florence Sewing Machine Co., Leg. Gazette, March 27, 1874.

2. CONDITIONS OF COGNIZANCE OF SUITS. — Those conditions, applicable to the present case, are that the matter in dispute shall exceed, exclusive of costs, the sum or value of five hundred dollars, and that an alien is a party, or that the suit is between a citizen of the state where the suit is brought and a citizen of another state. 16.

3. WHEN CIRCUIT COURT HAS JURISDICTION. Where the matter in dispute does not exceed, exclusive of costs, the sum or value of five hundred dollars, the circuit courts have no jurisdiction, except in revenue and patent cases; and the restriction applicable to all cases is that no civil suit shall be brought before any circuit court against any inhabitant of the United States by any original process in any other district than that

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whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. Ib.

4. Suits, whether at law or in equity, when commenced in a state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, may, under the twelfth section of the same act, be removed by the defendant for trial into the next circuit court for the same district, provided the defendant file a petition requesting such removal at the time of entering his appearance in the state court, and comply with all the other conditions specified in the section. 16.

5. CONDITION FOR REMOVAL. By the true construction of that section, it is required, in order that the right to effect the removal may arise, that each distinct interest should be represented by persons all of whom are entitled to sue, or such as may be sued in the federal courts; the established rule being that where the interest is joint, each of the persons concerned in that interest must be competent to sue, or be liable to be sued in the court to which the suit is removed.

6. JURISDICTION OF CIRCUIT COURTS DEPENDS ON ACT OF CONGRESS. - Circuit courts do not derive their judicial powers immediately from the Constitution; consequently the jurisdiction of such courts, in every case, must depend upon some act of Congress, as the Constitution provides that the judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish. Ib.

7. JURISDICTION OF COURTS CREATED BY STATUTE. — Courts created by statute can have no jurisdiction in controversies between party and party, except such as the statute confers. 16.

8. DIFFERENT REGULATIONS ENACTED SUBSEQUENT TO THE JUDICIARY ACT. - Different regulations are enacted in the subsequent act for the removal of causes in certain cases from the state courts ; but this act, like the judiciary act, limits the right of removal to the alien defendant and to the defendant who is a citizen of a state other than that in which the suit is brought. Ib.

9. PETITION FOR REMOVAL OF SUITS FROM STATE COURT. — None but the alien defendant or the non-resident defendant have any right under that act to petition for the removal of the case; but the provision is that such a defendant may, at any time before the final hearing of the cause, remove the same from the state court into the circuit court for trial, subject to the conditions therein expressed, even though it appears that a citizen of the state where the suit is brought is also a defendant, if (1) the suit, so far as it relates to the alien defendant or the non-resident defendant, was instituted and is prosecuted for the purpose of restraining or enjoining such defendant; or (2) if the suit is one which, so far as it respects such alien or non-resident defendant, can be finally determined without the presence of the other defendant or defendants as parties in the cause.

16. 10. THE REMOVAL OF CAUSE DOES NOT TAKE AWAY PLAINTIFF'S RIGHT TO PROCEED AGAINST OTHER DEFENDANTS AT THE SAME TIME IN STATE COURT. Cases can only be removed under that act, however, subject to the fundamental condition, that the removal of the cause shall not be deemed to prejudice or take away the right of the plaintiff to pro

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Digest OF CASES.

[No. 5.

ceed at the same time with the suit in the state court, if he shall see fit, against the other defendants. Ib.

11. INTERPRETATION. Nothing can be inferred from that act to support the theory assumed by the defendants, as the material phrase of the act is the same as the language employed in the judiciary act; and the construction must be controlled by the rule that words and phrases, the meaning of which have been ascertained by judicial interpretation, are, when used in a subsequent statute, to be understood in the same sense. 16.

12. THE RIGHT OF REMOVAL OF CAUSES FROM STATE COURTS EXTENDED BY AMENDMENT. Congress amended that act on the 2d of March, 1867, and extended the right of removal in such a case to the citizen of another state, whether he be plaintiff or defendant, in a suit commenced or pending in a state court, in which there is controversy between a citizen of the state in which the suit is brought and a citizen of another state. Ib.

13. ALIENS are not included in the new enactment at all, and the conditions applicable to the non-resident party, whether plaintiff or defendant, are that the petitioner must file in the state court an affidavit, stating that he has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such state court; and the act provides that if he will file such affidavit and comply with all the other specified conditions, he may, at any time before the final hearing or trial of the suit, apply to the state court for the removal of the suit into the next circuit court to be held in the district, and that it shall be the duty of the state court to proceed no further in the suit. 16.

14. RIGHT OF REMOVAL FROM STATE COURTS EXTENDS TO NON-RESIDENT PLAINTIFF AS WELL AS TO NON-RESIDENT DEFENDANT. - Appropriate language to show that the law-makers intended to vest in the nonresident party, whether plaintiff or defendant, the right to remove the suit into the circuit court in a case where a citizen of the state in which the suit is brought is joined in the suit with the petitioner is wholly wanting ; nor is it competent for the court to supply the deficiency by construction, as it is obviously the main purpose of the act to extend the right of removal to the non-resident plaintiff as well as to the non-resident defendant.

Words to express any such purpose are entirely wanting, the language employed being that a pending suit, or one hereafter brought, in a state court, “ in which there is controversy between a citizen of the state in which the suit is brought and a citizen of another state,"

whether he be plaintiff or defendant, “such citizen of another state” may remove the same into the circuit court.

Instead of that, the language of the judiciary act is: If a suit is commenced in a state court - by a citizen of the state in which the suit is brought against a citizen of another state,the defendant may remove the suit into the circuit court, if he file his petition at the time he enters his appearance in the state court.

Beyond doubt, the phraseology of the two provisions is different, but they mean the same thing in respect to the party who may effect the removal, except that the last act extends the privilege to the non-resident plaintiff as well as to the non-resident defendant; but all of the plaintiffs or all of the defendants, as the case may be, must be non-residents, and must join in the petition for the removal of the suit. Ib.

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