3. INSURANCE-BENEFIT SOCIETIES-CHANGE OF BEN-
EFICIARY.-A member of a benevolent insurance association can-
not change the beneficiary named in his certificate of membership
except in the manner pointed out in the by-laws and rules of the
association, and any material deviation therefrom invalidates the
change or transfer. (Independent Foresters v. Keliher, 785.)
4. INSURANCE-BENEFIT SOCIETIES-CHANGE OF BEN-
EFICIARY.-If the by-laws of a benevolent insurance association
require a member who wishes to change his beneficiary to file a
written petition with his local branch of the association, stating
certain facts, and directing the local secretary to send the petition
and the certificate of membership to the grand secretary, who shall
issue a new one, the failure of the member to file such petition or
surrender his old certificate is an omission of material acts, and an
alteration by the local secretary of the name of the beneficiary in
the original certificate is ineffectual to change the beneficiary. (In-
dependent Foresters v. Keliher, 785.)
5. INSURANCE-BENEFIT SOCIETIES-CHANGE OF BENE-
FICIARY-WAIVER OF BY-LAWS.-The failure of the grand
lodge of a benevolent insurance order to supply subordinate lodges
with proper blank forms of petition for, or application for, change
of beneficiaries, or the failure of a subordinate lodge to meet on a
regular day when a petition for change of a beneficiary might have
been considered, is not a waiver of the by-laws of the organization
as to change of beneficiaries, nor is it any excuse on the part of
the insured member for failing to substantially comply with such
by-laws. (Independent Foresters v. Keliher, 785.)
6. INSURANCE, LIFE - BENEFICIARY — OWNERSHIP OF
POLICY-POWER TO TRANSFER.-A life insurance policy, and
the money to become due upon it, belong, the moment it is issued,
without delivery, to the person named therein as beneficiary; and
there is no power in the person procuring the insurance, by any
act of his, by deed or will, to transfer to any other person the
interest of the beneficiary without the latter's consent. The bene-
ficiary designated in the policy is the proper person to receipt and
sue for the insurance money. (Jackson Bank v. Williams, 530.)
INSURANCE-LIFE-BANKRUPTCY.-A policy of insur-
ance on the life of a bankrupt, payable to his legal representa-
tives, and having no cash surrender value and no value for any
purpose except the contingency of its becoming valuable at the
death of the bankrupt if the premiums are kept paid, does not
vest in the trustee in bankruptcy as assets of the bankrupt's estate.
(Morris v. Dodd, 129.)
8. VENDOR AND PURCHASER-LOSS BY FIRE-When a
binding agreement is entered into to sell land, and the improvements
thereon were destroyed by fire before the vendor was in a condi-
tion to convey and before the vendee had gone into possession,
the loss falls upon the vendor and not on the purchaser. (Phinizy
v. Guernsey, 207.)
INSURANCE MONEY-WHO ENTITLED TO-VENDOR
AND PURCHASER.-Where, as between a vendor and vendee of
real estate, the improvements on which are destroyed by fire, the
loss falls upon the vendor, he is entitled to collect and hold the
money due on insurance policies issued on the property. (Phinizy
v. Guernsey, 207.)
INSURANCE, FIRE-MISSTATEMENT AS TO OWNER-
SHIP. If the owner of an undivided one-half interest in a build-
ing states in his written application for fire insurance that he is
the sole and unconditional owner of the building, the issuance is
vold, although such applicant is sincere in making such misstatement, as his co-owner had verbally promised to convey to him upon the payment of a certain sum. (Liverpool etc. Ins. Co. v. Cochran,
FORFEITURE OF POLICY.-Under an insurance policy which provides that proofs of loss shall be furnished within sixty days, but the furnishing of the proofs within such time is not made a condition precedent to recovery, the failure so to do will operate simply to postpone the right of the insured to bring a suit until after he has furnished the proofs of loss required by the policy. (Southern Fire. Ins. Co. v. Knight, 216.)
12. INSURANCE-PROOFS OF LOSS-TIME OF FURNISHING.-Where an insurance policy stipulates that the loss shall not become payable until sixty days after the proofs of loss have been furnished, and requires also that any suit on the policy must be commenced within twelve months after the fire, the insured must submit his proofs of loss in time for sixty days to elapse between the time when they were furnished and the expiration of the twelve months' limitation. (Southern Fire Ins. Co. v. Knight, 216.) 13. INSURANCE IRON-SAFE CLAUSE. INVOICES OF GOODS PURCHASED, covering every article embraced within a stock of merchandise on a given day, is not an inventory of such stock with the meaning of an "iron-safe clause," which requires the insured to take a complete itemized inventory of stock on hand at least once in each calendar year. (Southern Fire Ins. Co. v. Knight, 216.)
14. INSURANCE-DIFFERENT CLASSES OF PROPERTYENTIRE CONTRACT-FORFEITURE.-Where an insurance policy is issued in consideration of a gross premium, and provides that the policy shall be void in the event of a breach of a certain condition named therein, and this condition is broken, no recovery can be had on the policy, though separate classes of property are insured, and the stipulation violated relates solely to a matter connected with but one of these classes. (Southern Fire Ins. Co. v. Knight, 216,)
15. INSURANCE-FIRE-PROOF OF LOSS.-If a policy of insurance stipulates that if fire occurs the insured shall give immediate notice of any loss thereby in writing to the company, and, in sixty days after the fire, shall render a sworn statement stating the knowledge and belief of the insured as to the time and origin of the fire, and that, in the absence of compliance with such stipulations, no action can be maintained against the insurer, the submission of proofs of loss to the insurer within the time prescribed is a condition precedent to the payment of the loss or the maintenance of an action. (Cannon v. Phoenix Ins. Co., 124.)
16. INSURANCE-FRIENDLY FIRES.-If fire is employed as an agent, either for the ordinary purposes of heating the insured building, for the purposes of manufacture, or as an instrument of art, the insurer is not liable for the consequences thereof, so long as the fire itself is confined within the limits of the agencies employed, as from the effects of smoke or heat evolved thereby, or escaping therefrom from any cause, whether intentional or accidental. (Cannon v. Phoenix Ins. Co., 124.)
17. INSURANCE-FIRE SMOKE AND WATER-FRIENDLY FIRES.-Under a policy of insurance against all direct loss or damage by fire, the insurer is not liable for damage arising from smoke and soot escaping from a defective stovepipe and resulting from a
fire intentionally built in a stove and kept confined therein, nor
for damage caused by water used in cooling a portion of the build-
ing heated by such stovepipe, when the use of such water is not
necessary to prevent ignition. (Cannon v. Phoenix Ins. Co., 124.)
INSURANCE-FIRE-EVIDENCE-PROOF OF LOSS.-In
an action on a fire insurance policy, parol evidence is not admis-
sible on the part of plaintiff to prove a fact in support of his claim
of loss, when no proof thereof has been made and presented to
the insurer prior to the institution of the suit, and it does not
appear from the record that such fact was not discovered by plain-
tiff before suit was brought. (Cannon v. Phoenix Ins. Co., 124.)
19.
CONSTITUTIONAL LAW-PROHIBITING FOREIGN IN-
SURANCE. THE LEGISLATURE has power to prohibit foreign
insurance companies, their agents or brokers, from soliciting busi-
ness within a state, even though the insurance contract makes the
solicitors the agents of the insured in the transaction. (Common-
wealth v. Nutting, 483.)
1. MUNICIPAL CORPORATIONS INTEREST ON WAR-
RANTS.-Warrants for the payment of money against a municipal
corporation presented to the city treasurer and indorsed by him "not
paid for want of funds," as authorized by ordinance, are there-
after interest bearing from that date. (Monteith v. Parker, 768.)
2. MUNICIPAL CORPORATIONS ARE LIABLE FOR INTER-
EST on their debts the same as individuals. (Monteith v. Parker,
768.)
3. MUNICIPAL CORPORATIONS INTEREST ON WAR-
RANTS.-If an interest bearing warrant against a city is surren-
dered and others to an equal amount are issued in lieu thereof, and
dated and indorsed as the original, the later issue cannot be re-
garded as a payment, but merely as an exchange, and they too bear
interest the same as the original. (Monteith v. Parker, 768.)
4. CARRIERS- NEGLIGENT DELAY - DAMAGES INTER-
EST.-A judgment for damages against a carrier for negligent de-
lay in the shipment of goods does not bear interest as matter of law.
(Railroad v. Cabinet Co., 933.)
JURISDICTION OVER NONRESIDENT-INTERPLEADER
-ESTOPPEL.-Where a nonresident is made a defendant by a
proceeding in the nature of an interpleader, and a judgment is
rendered against him upon a personal service of process in the state
where he resides, such judgment is void, and a recital therein that
service had been duly made and that he should be forever barred
of any claims in respect to the subject matter of the suit works no
estoppel. (Hinton v. Penn Mutual Life Ins. Co., 636.)
1. INTERSTATE COMMERCE-AGENCY.-If a person, after
obtaining orders for goods from resident customers, submits such
orders in his own name to a nonresident manufacturer, and ob-
tains the goods which are charged to him individually, shipped to
him directly in a single package, which is broken by him, and the
goods delivered to the several customers and the price collected by him, the transaction is not one of interstate commerce exempt from a state license or privilege tax, and he sells the goods as owner, and not as an agent. (Croy v. Obion County, 931.)
2. CONSTITUTIONAL LAW INTERSTATE COMMERCE INTERFERENCE WITH SEAMEN.-A statute making it a crime to persuade or attempt to persuade any seaman to leave any vessel within the jurisdiction of the state, is a valid exercise of the police power, and not unconstitutional as a regulation of or interference with interstate or foreign commerce. (Ex parte Young, 772.)
3. CONSTITUTIONAL LAW-INTERSTATE COMMERCE.-It is only when a statute of a state conflicts with an act of Congress regulating foreign or interstate commerce, or contravenes the general policy of the government, that it must yield. (Ex parte Young, 772.)
CONSTITUTIONAL LAW-REGULATION OF COMMERCE. A state has power to enact a statute regulating commerce within its borders if the subject covered is one over which Congress has not assumed control. (Ex parte Young, 772.)
1. TO MAKE PERSONS JOINT TORT FEASORS they must actively participate in the act which causes the injury. (Brown v. Louisburg, 677.)
2. RELEASE-EFFECT OF, ON PARTY SECONDARILY LIABLE FOR TORT.—A full release and discharge, for a valuable consideration, of a party primarily liable for a tort injury operates as a release of the party secondarily liable, especially where the latter is entitled to recover from the former whatever damages he might be compelled to pay to the injured party. (Brown v. Louisburg, 677.)
1. JUDGMENT-ASSIGNMENT.-Without an assignment of the undertaking on appeal the assignee of a judgment cannot maintain an action against the sureties on the appeal bond, no matter whether the assignment was made pending the appeal or after the judgment has become a finality. (Chilstrom v. Eppinger, 46.) 2. JUDGMENTS - ASSIGNMENT. THE CONTRACT OF SURETIES upon an appeal bond is entirely distinct from, and Independent of, the judgment, and not a necessary incident to it, and the rights under it do not pass by assignment of the judgment. (Chilstrom v. Eppinger, 46.)
3. JUDGMENTS AGAINST DEAD PERSONS-COLLATERAL ATTACK.-A judgment against a deceased defendant theretofore duly served with process is void, and both such judgment and a sale under execution in satisfaction thereof may be collaterally attacked. (Keger v. Vickery, 318.)
4. JUDGMENTS - SISTER STATE - CONCLUSIVENESS OF PRESENT DEBT.—A judgment recovered in another state is not conclusive of the existence of a present debt, because of the defenses which may be urged against it. (First Nat. Bank v. Randall, 867.) 5. JUDGMENTS.-COURTS HAVE INHERENT POWER TO AMEND OR SET ASIDE their judgments for cause. (State v. Watson, 871.)
Am. St. Rep., Vol. LXXVIII-64
6. JUDGMENTS-RES JUDICATA-DEFENSE AVAILABLE
ON FIRST TRIAL.-After final judgment in attachment, a release
alleged to have been given after the attachment and before the
return day of the writ is not available as a defense in an action on
the bond given to release the property from attachment. Such de-
fense was within the knowledge of the defendant, and should have
been pleaded in the suit on the attachment, and he is concluded by
the judgment therein. (Tucker v. Carr, 893.)
7. JUDGMENTS-RES JUDICATA AVAILABLE.-A judgment
is conclusive against all defenses which might have been set up be-
fore it was rendered, and this is true for the purposes of every
subsequent suit between the same parties and their privies, whether
founded upon the same or a different cause of action. (Tucker v.
Carr, 893.)
8. JUDGMENTS - RES JUDICATA - PARTIES.-A judgment
recovered against a municipal corporation for injury caused by a
defect or obstruction in the highway is conclusive evidence of its
necessary facts and conditions, in a subsequent action by the mu-
nicipality against a third person, the author of the defect or nui-
sance, who is liable over and who was notified of the first suit.
(Pawtucket v. Bray, 837.)
9. JUDGMENTS-RES JUDICATA-PARTIES.-No party is, as
a general rule, bound in a subsequent suit by a judgment, unless
the adverse party, now seeking to secure the benefit of the former
adjudication, would have been prejudiced by it if it had been deter-
mined the other way. In order to come within the rule as to res
Judicata, the first judgment must have been binding on both par-
ties to the second action. (Walker v. Philadelphia, 801.)
10. JUDGMENTS-RES JUDICATA-HUSBAND AND WIFE.-
If a wife, in an action to which her husband is merely a formal par-
ty, recovers judgment for personal injury to herself, and her hus-
band brings another action to recover for the loss of the wife's ser-
vices resulting from the same injury, the record of the first suit is
not admissible in evidence, as conclusive of the defendant's negli-
gence. Such record is res inter alios acta, and instead of being con-
clusive of such negligence, is wholly inadmissible. (Walker v.
Philadelphia, 801.)
11. RES JUDICATA-RECOVERY OF MONEY PAID ON
JUDGMENT.-A bank, which pays its money to satisfy a judgment
obtained against it by mistake as trustee of the principal defendant
in a court of competent jurisdiction, in a suit in which the bank was
duly served with process, and appeared and voluntarily took such
action as made the judgment a necessary result of the proceedings,
cannot recover such money, so long as the judgment remains un-
reversed. (People's Savings Bank v. Heath, 481.)
12. RES JUDICATA-SUBMISSION ON AGREED FACTS.—
The fact that a case is submitted on agreed facts, so that all ob-
jections to the form of action are waived cannot authorize a court
to disregard the effect of a former unreversed judgment. (People's
Savings Bank v. Heath, 481.)
JUDGMENTS-RES JUDICATA-APPEALABLE ORDERS.
An order denying the right of an insolvent debtor to the proceeds
of a crop grown upon land claimed by him as a homestead, and
establishing the right of the assignee in insolvency thereto, is
appealable, and, after the time for an appeal therefrom has elapsed,
becomes res judicata and a bar to an action by the homestead
claimant to recover the value of the crop against such assignee in
his individual capacity. (Sunkler v. McKenzie, 86.)
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