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him upon the terms and conditions therein | tion of things to exist in violation of the expressed. Wilson v. Hill, 3 Metc. 66; Fogg terms of the policy, he is not in default. Elv. Insurance Co., 10 Cush. 337; Flanagan lis v. Insurance Co., 68 Iowa, 578, 27 N. W. v. Insurance Co., 25 N. J. Law, 506; Cummings v. Insurance Co., 55 N. H. 457; Steen v. Insurance Co., 89 N. Y. 315; Shearman v. Insurance Co., 46 N. Y. 527; Hooper v. Insurance Co., 17 N. Y. 424; Ellis v. Insurance Co., 64 lowa, 507, 20 N. W. Rep. 782; Wood. Ins. §§ 110, 366.

Where an estate is sold and the policy transferred to the purchaser, and, upon notice to the insurer, he assents to it, a new and original contract of indemnity arises to the assignee, which he may enforce in his own name. The policy in such case expires with the transfer of the title to the estate, but the assent of the insurer to the assignment of the policy constitutes a new contract. Pratt v. Insurance Co., 64 Barb. 589; Fland. Ins. 412, 484; Foster v. Insurance Co., 2 Gray, 219.

Aside from the prohibitory clause, policies of insurance, prior to any loss, are not in their nature assignable from one person to another without the express consent of the insurance company issuing them. They are therefore subject to the common-law rule, the effect of which is that where the assignee of a contract gives notice of the assignment to the other party to the instrument, and the latter assents to it, the transaction constitutes a new engagement between one of the parties to the contract and the assignee of the other, the terms of which are regulated and fixed by the original contract. Fogg v. Insurance Co., supra; Wilson v. Hill, supra; Hooper v. Insurance Co., supra; Fland. Ins. 484.

Rep. 762, and Insurance Co. v. Garland, 108 Ill. 220, are not opposed to the conclusions above stated. The case first cited involved a policy which contained a provision that "if the title of the property is *** incumbered, *** this policy shall be void." At the time the policy was assigned there was a mortgage on the property, which remained upon it until after the loss. This condition, as the court well says, pertained to the character of the risk as it then was or should thereafter be, and when the assignee became a party to the condition, he virtually agreed that if there was then or should thereafter be an incumbrance on the property, he should not, in case of loss, be entitled to recover. The contract provided against subsisting incumbrances as fully as it did against those which might be made thereafter, and the gist of the defense which the court sustained was that the incumbrance was allowed to remain. The court fully recognizes the doctrine of its former decisions which hold that an assignment of a policy, with the assent of the insurance company, creates a new contract, and that the assignee is not affected by the acts of the assignor. The other case relied upon was predicated upon a policy which contained a stipulation to the effect that if "the assured shall allow the buildings herein insured to become vacant or unoccupied and so remain, *

this policy shall become void." It was properly held that this provision was imported into the new contract, and became a present agreement with the assignee, and that as he permitted the premises to remain unoccupied the company had the right to avoid the policy because he had violated his agreement. The distinction between the cases relied on and the present case is obvious. In those cases the defenses were not predicated upon acts or defaults of the vendor, but upon violations of the terms of the policy by the vendee himself. The policy involved in the present case contained no provision against subsisting incumbrances. Future incumbrances alone were referred to, and the established rule is that conditions which create forfeitures will not be extended by construction. Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. Rep. 582; Symonds v. In

In order that a policy of insurance may be effectual, the insured must have an interest in the property covered by the contract of insurance, not only when the contract is entered into, but when the loss occurs. If the interest in the property and the interest in the policy become separated, the operation of the policy becomes suspended; and if a loss occurs while the policy is thus suspended, no recovery can be had. An assignment of an insurance policy, without a transfer of the property insured, would be an idle ceremony so far as transferring to the assignee any beneficial interest in the contract. On the other hand, the transfer of the property insured suspends the operation of the policy, which becomes inoperative for want of a sub-surance Co., 23 Minn. 491. ject-matter to act upon, until, by the assign- There is no pretence that the assignee ment and assent of the company, a new con- made any misrepresentation concerning the tract of insurance, embodying the same terms condition of the risk at the time the company and conditions as the old, arises between the gave its assent to the assignment. The rule latter and the purchaser. The contract of in-applicable is that a failure or neglect on the surance thus consummated arises directly between the purchaser and the insurance company, to all intents and purposes the same as if a new policy had been issued, embracing the terms of the old. In such a case, no defense predicated on supposed violations of the conditions of the policy by the assignor will be available against the assignee. Until the latter himself does some act or permits a condi

part of the insured to make known facts which the insurer may regard as material to the risk is not a breach of a condition in the policy, avoiding it in case of any omission to make known every fact material thereto, because the insured has a right to suppose that the insurer will make proper inquiries concerning all facts except such as are supposed to be known or are regarded as immaterial.

Short v. Insurance Co., 90 N. Y. 16; Burritt v. Insurance Co., 5 Hill, 188; Clark v. Insurance Co., 8 How. 235. In the case last cited the court said: "As to the ordinary risks connected with the property insured, if no representations whatever are asked or given, the insurer must be supposed to assume them, and if he acts without inquiry anywhere concerning them, seems quite as negligent as the insured, who is silent when not requested to speak."

were presented to him, and that he signs them; but the general bill is not signed. There was not, it is obvious, a compliance with the law. Wagoner v. Wilson, 108 Ind. 210, 8 N. E. Rep. 925; Stone v. Brown, 116 Ind. 78, 18 N. E. Rep. 392; Colt v. McConnell, 116 Ind. 249, 19 N. E. Rep. 106.

The appellant submitted to the court the form of a special verdict, and asked that it be placed before the jury, but did not request that a special verdict be returned. The court did not err in refusing to submit the paper prepared by the appellant to the jury. If the appellant had demanded a special verdict a very different question would be presented.

An applicant for insurance is not bound, unless inquired of, to disclose whether or not the property insured is incumbered. As the public records usually give information in reference to such matters, he may assume Inconsistency between the general verdict that the insurer knew of any existing in- and the answers to interrogatories is not a cumbrances or deemed it immaterial whether cause for a new trial; nor can the answers or not the property was incumbered. These be used to determine whether the verdict is conclusions lead to an affirmance of the judg-supported by the evidence in a case where the ment. Judgment affirmed, with costs.

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3. Refusal of the court to submit to the jury a paper prepared by one party as a form of a special verdict is not error, when there is no demand by

that party for a special verdict.

4. Inconsistency between the answers to interrogatories and the general verdict is not a ground for a new trial in Indiana.

5. In a case where the evidence is not in the record, the answers of the jury to the interrogatories cannot be used to determine whether the verdict is supported by the evidence.

6. The refusal of a judge to compel the jury to return a definite answer to an interrogatory is not cause for a new trial, if the matters referred to in the interrogatory are fully covered by the answers to other interrogatories.

Appeal from circuit court, Madison county; D. Moss, Judge.

evidence is not in the record. Insurance Co. v. Blankenship, 94 Ind. 535-548; Stockton v. Stockton, 40 Ind. 225-228; Tucker v. Conrad, 103 Ind. 349, 2 N. E. Rep. 803; Railroad Co. v. Rowan, 104 Ind. 88-96, 3 N. E. Rep. 627.

No harm was done the appellant by refusanswer to the twenty-sixth interrogatory proing to require the jury to give a more definite pounded by the appellant. Answers to other interrogatories very fully covered the matters referred to in the twenty-sixth interrogatory. If the court erred at all, and we incline to think it did err, it was in allowing that interrogatory to go to the jury. It is not the object of the statute to permit many interrogatories to go to the jury, and certainly not to permit the repetition of questions. The statute was designed to elicit material facts, not mere items of evidence. It was not intended that interrogatories should be employed to harrass or is to elicit the facts so that the court may confuse jurors, but the purpose of the statute pronounce judgment upon them. There is no material inconsistency between the answers to the interrogatories and the general verdict. Judgment affirmed.

(120 Ind. 23)

Action by Thomas J. Kane and Theodore P. Davis for legal services rendered to the STATE ex rel. HULMAN v. HARPER, Sheriff, Louisville, New Albany & Chicago Railway Company. Judgment was rendered for plaintiffs, and defendant appealed.

George W. Friedley and George R. Eldridge, for appellant. Kane & Davis, pro se.

ELLIOTT, C. J. This action was brought by the appellees to recover for services rendered the appellant as attorneys. There is no bill of exceptions containing the evidence, and many of the questions discussed by appellant's counsel are not presented by the record.

There is in the record a paper purporting to be the stenographer's report of the evidence, but it is not signed or attested by the judge, and is, therefore, entirely without force.

The judge recites in a separate paper that 'special bills of exceptions and a general one

et al.

(Supreme Court of Indiana. Sept. 17, 1889.): LIABILITIES OF SHERIFFS-FAILURE TO LEVY EX

ECUTION-EXEMPTIONS.

Where a debtor owns property not exceedsuch ownership is unknown to the sheriff, he ing the amount exempt from execution, though and his bondsmen are not liable for his failure to levy execution upon said property, in the absence of a showing that the judgment, upon which the execution issued, was rendered for a tort.

Appeal from circuit court, Montgomery county; E. C. SNYDER, Judge.

Action by Herman Hulman against Alexander Harper, as sheriff of Montgomery county, and the sureties on his official bond. Judgment for defendant, and plaintiff appeals.

John R. Courtney, for appellant. Wright & Seller, for appellees.

solvent. Dick v. Hitt, 82 Ind. 93; Simpkins v. Smith, 94 Ind. 470; Williams v. Osborne, 95 Ind. 347; Williams v. Osbon, 75 Ind. 280. While it is true that the right to claim property as exempt from execution is the personal privilege of the debtor, as such exemption is for his benefit, the law presumes that he will make such claim. Campbell v. Gould, 17 Ind. 133; Williams v. Osborne, 95 Ind. 347.

COFFEY, J. This was an action by the ap- tion as to whether it exceeded the amount pellant against the appellees, Alexander Har- exempt from execution; while, on the other per, as the sheriff of Montgomery county, hand, it is contended by the appellees that, and the sureties on his official bond. It ap- unless such debtor was the owner of properpears from the special finding of facts in the ty exceeding in value the amount exempt by case that the appellant, Herman Hulman, law from levy and sale, he was insolvent, recovered a judgment in the Montgomery and that such insolvency constituted a legal circuit court on the 15th day of December, excuse for making no levy. The case of 1884, for the sum of $467, against Howard State v. Neff, 74 Ind. 146, was an action on Wilcox. On the 24th day of December, in a constable's bond for failure to levy an exthe same year, he sued out an execution on ecution. It was held in that case that a gensaid judgment, which came into the hands eral plea of the insolvency of the execution of the appellee Alexander Harper, as the debtor was a bar to the action. The quessheriff of said county, on the same day. tion, therefore, is, when is a debtor in legal Said sheriff failed to levy said execution, and contemplation insolvent? A debtor who permitted it to die in his hands. On the has no property subject to execution is in27th day of June, 1885, the appellant sued out another execution on said judgment, which also came to the hands of the appellee Alexander Harper, as such sheriff, which he failed to levy; and he permitted this writ also to die in his hands. No part of the said judgment has ever been paid. While said appellee held said writs he demanded of the execution defendant, Howard Wilcox, property to satisfy the same, but was informed by said debtor that he had no property what- It has been held repeatedly by this court ever; and that the property, which was be- that where a debtor owns less property than ing used by the said Wilcox and his partner he is entitled to claim as exempt from execuin the saloon business, was the property of tion, such property is not subject to levy, and Lydia Wilcox, the wife of the said Howard, an execution does not become a lien upon it, and his partner. He was informed, how-and that he may sell the same or make such ever, by the appellant, during the life of said executions, that the undivided one-half of said property was owned by the said Howard Wilcox, and the same was pointed out by the appellant as subject to execution. Howard Wilcox during all said time was a resident householder of Montgomery county, Ind., and during all said time was the owner of the undivided one-half of said property, the same being owned by him and another as partners in carrying on the saloon business, said property consisting of billiard and pool tables, safe, ice-box, side-bar, bar glasses, decanters, stoves, tables, desk, pictures, and furniture. The interest of said Howard Wilcox during all said time was worth $500, and no more, and this was all the property owned by him. Howard Wilcox, at all times, disclaimed the ownership of said property, and the appellee had no personal knowledge of the fact that he was the owner of the same at the time he held either of said executions.

Upon these facts the court stated as conclusions of law that the appellee, and the sureties on his official bond, were not liable to the appellant for failure to levy said executions, and the appellant excepted. He appeals to this court, and assigns as error-First, that the circuit court erred in its conclusions of law upon the facts above stated; second, that the court erred in overruling the appellant's demurrer to the second and third paragraphs of the appellees' answer.

It is earnestly contended by the appellant that it was the duty of the sheriff to levy the execution in his hands upon the property of the execution debtor, regardless of the quesv.22N.E.no.10-6

disposition thereof as he may choose, even while the execution remains in the hands of the officer. Durbin v. Haines, 99 Ind. 463; Taylor v. Duesterberg, 109 Ind. 165, 9 N. E. Rep. 907; Barnard v. Brown, 112 Ind. 53, 13 N. E. Rep. 401. The command of an execution for the collection of a debt is that the sheriff shall levy the same on the property of the execution debtor subject to execution. Rev. St. 1881, § 682. We think it follows from the authorities here cited that where the execution debtor's property does not exceed the amount allowed by law as exempt from execution, the sheriff is not required to make a levy upon such property. Indeed, he could not do so without exceeding the commands of his writ. It is true that he would be liable to nominal damages for failing to return the execution within the time therein specified, but for a failure to levy upon property, upon which his execution was not a lien, we are of the opinion that he is not liable. It is claimed by the appellant that as it does not appear from the special finding that the judgment upon which the execution in this case issued was rendered upon a contract, we must presume that it was rendered for a tort. We are not inclined to adopt this view. It was for the appellant to make out his case. When it was shown that the property of the execution defendant did not exceed $600 in value, we think it should have been shown by the appellant, if he desired to show a liability on the part of the sheriff, that the judgment was rendered in an action not sounding in contract. The sheriff is presumed to have

done his duty, and the burden rested upon | drainage of real estate. Proceedings were the appellant to remove such presumption by dismissed upon motion of Hetrick, and plainproper proof. What we have said here also tiff appeals. disposes of the second assignment of error, as the answers set up the same matters here discussed. There is no error in the record for which the judgment of the circuit court should be reversed. Judgment affirmed.

(150 Mass. 54)

COMMONWEALTH v. JOHNSON et al. (Supreme Judicial Court of Massachusetts. Berkshire. Sept. 16, 1889.)

LARCENY EVIDENCE.

Where, on trial for larceny of sheep alleged to belong to a certain person, it appears that the latter's sheep were in a pasture and were stolen at the same time as those of one P., evidence that some sheep in a flock found in defendants' possession shortly after the larceny, which flock resembled in number and marking the sheep stolen, were those of P., is admissible as tending to identify the whole flock as that stolen, and it is immaterial that such evidence may also prove another crime. Exceptions from superior court, Berkshire county; EDGAR J. SHERMAN, Judge.

John F. McKee, D. W. McKee, and Berry & Berry, for appellant. Urmston & Carter, and Jones & Jones, for appellees.

OLDS, J. This is a proceeding for the drainage of certain real estate under the drainage act of 1883. The original petition was filed on the 16th day of April, 1884, and on the 17th day of September, 1884, an amended petition was filed. At the November term, 1884, of said court, proof of posting notices was filed, and the court ordered the cause docketed as an action pending, and referred the petition to the commissioners of drainage, with orders to report on a day named. The commissioners made report which included lands not named in the petition, and notice was given to the owners of the land included in the report and not included in the petition. At the April term, 1885, the commissioners of drainage filed an amended report. One Robert Darr, whose lands were

Indictment of Henry Johnson and others for larceny of sheep alleged to be the prop-reported as benefited, remonstrated, and erty of one Coleman. Defendants were convicted, and except.

J. C. Crosby and H. C. Joyner, for defendants. A. J. Waterman, Atty. Gen., for the Commonwealth.

there was a trial and finding in favor of Darr on his remonstrance; and the petition again referred to the commissioner of drainage, and an order was finally made for the commissioners to report on the first day of the February term, 1886. They failed to report upon that day, and on the second day of said term the petitioners filed a petition stating the reasons for the failure of the commissioner to report, and the time was extended. Various steps were taken, and finally a report was filed by the commissioner. Some of the persons whose lands were assessed made a special appearance and moved to set aside the report, and, without their motions being passed upon, appeared and filed remonstrances.

MORTON, C. J. This is an indictment for the larceny of a number of sheep alleged to be the property of one Coleman. There was evidence which would justify the jury in finding that the sheep of Coleman were in a pasture, together with sheep of one Parsons, and that all the sheep of both owners were stolen at the same time. There was evidence tending to show that a short time afterwards a flock of sheep was found in the possession of the defendants, which, by its number and marking, resembled the Coleman and Parsons The appellee Lafayette M. Hetrick, whose sheep. It was competent to show that some lands were described in the petition and reof this flock, identified by peculiar marks, ported as benefited, made a special appearwere the sheep of Parsons. It tended to iden-ance and filed his written motion to set aside tify the whole flock as the flock which was the report of the commissioners of drainage stolen, and thus to show that some of the and the notice, and to dismiss the proceedflock were the property of Coleman. The fact that it might prove another crime committed by the defendants is immaterial. Com. v. Riggs, 14 Gray, 376. Exceptions overruled.

(120 Ind. 19)

SITES V. MILLER et al. (Supreme Court of Indiana. Sept. 17, 1889.)

DRAINAGE-NOTICE-WAIVER.

Where a petitioner for drainage has failed to give the statutory notice, though some of the parties interested have waived the proper notice, and the cause has proceeded to a final report of the commissioners, it is proper, upon motion of a party who has not made such waiver, to set aside the notice and subsequent proceedings.

Appeal from circuit court, Franklin county; FERDINAND SWIFT, Judge.

Proceeding by Jacob Sites against Perry Miller, Lafayette M. Hetrick, and others for

ings, stating, among other reasons for the setting aside of the report and the dismissal of the proceedings, that no notice had been given of the filing and pendency of the petition, as required by the act of 1883, and that the only notice which had been given by said petitioner in said cause was a notice stating that "at the next term of the Franklin county circuit court the said Sites would petition the said court for the drainage of certain real estate, describing it," and that a large number of the persons, whose lands were affected by such drainage, had not appeared to said petition and had in no way submitted to the jurisdiction of said court. The court sustained the motion of said Hetrick and made a finding that the "material allegations set forth in said motion were true, and that all of the notices concerning the filing of the petition in this cause were that the petitioner

At this stage of the case, in order to proceed further as to those who had not waived notice at least, it was necessary that a further and proper notice of the filing of the petition should have been ordered and given. The petitioners refused to give any further notice, and the court, on its own motion, dismissed the proceedings and petition; but there is no bill of exceptions presenting the question as to the action of the court in the dismissal of the cause; and the question as to the correctness of the ruling of the court in dismissing the petition as to those who had waived notice, is not properly presented for the decision of this court. Judgment affirmed, with costs.

would file a petition at the next term of the Franklin circuit court, and that he had filed his petition;" and the court ordered "that the order of the court docketing this cause as an action pending in said court, and the orders referring said petition to the commissioners of drainage, and the report of said commissioners be set aside, and held for naught;" to which ruling of the court in sustaining said motion, appellant excepted, and assigns the same as error. Hetrick had not waived notice in this case. The first step taken by him was his special appearance, and motion to dismiss on the grounds of the insufficiency of the notice. The case of McMullen v. State. 105 Ind. 334, 4 N. E. Rep. 903, is decisive of the question in this case. The motion of Hetrick was properly sustained. The record shows that after the court sustained the motion of Hetrick, and at a subsequent term of the court, the petitioner appeared in court and notified the NEGLIGENCE-PLEADING-BICYCLE-RIDING-LAW court that he would not give any further notice of the filing of the petition, and refused to give any further notice of the filing of such petition. Whereupon the court, on its own motion, dismissed the cause and petition, at the costs of the petitioner, to which action of the court the petitioner objected and excepted.

(120 Ind. 46)

HOLLAND V. BARTCH. (Supreme Court of Indiana. Sept. 18, 1889.)

OF THE ROAD.

1. In an action for damages, allegations that defendant negligently and carelessly rode his bicycle in the center of the road at the rate of 15 miles an hour, up to within 25 feet of the faces of plaintiff's horses, whereby they became frightened. are not sufficiently specific as to defendant's negliis in the manner of riding such bicycle, and not in gence, where the negligence sought to be charged the speed and place in which it was ridden.

2. A person in a carriage drawn by horses, and the rider of a bicycle, have equal rights upon the highway; and allegations that defendant rode a bicycle in the center of the road at the rate of 15 miles an hour, up to within 25 feet of the faces of plaintiff's horses, whereby they became frightened and ran away and injured plaintiff, do not state a

cause of action

Appeal from circuit court, Wayne county; D. W. COMSTOCK, Judge.

Counsel for appellant contends that as some of the parties whose lands were affected by the proposed drainage had appeared and filed remonstrances, they had thereby waived notice, and that the action of the court in dismissing the proceedings as to such persons who had waived notice was erroneous; but this question is not properly presented to this court. To review the action of the lower court in the dismissal of Action by Charlotte M. Holland against the cause on the refusal of the petitioner to Edward Bartch, for damages. Defendant give further notice of the filing of the peti- being a minor, Reuben Bartch was appointed tion, it was necessary to preserve the ques- guardian ad litem. Judgment for defendtion by bill of exceptions. While many ques-ant, and plaintiff appeals. tions are presented by the bill of exceptions, C. C. Binkley, for appellant. T. J. Steedy, yet this question is omitted. Pennsylvania for appellee. Co. v. Niblack, 99 Ind. 149.

The case, as presented to this court, shows this state of facts: The petitioner filed his petition for the drainage of certain real estate, but failed to give the proper notice of the pendency of the petition; the cause proceeded step by step until a final report was made and filed by the commissioners of drainage; a few of the parties interested appeared, and without objecting to the notice, remonstrated, whereby they waived the giving the proper notice of the filing of the petition. Carr v. Boone, 108 Ind. 241, 9 N. E. Rep. 110.

At this stage of the proceedings Hetrick, whose lands were described in the petition, entered a special appearance and moved to set aside the notice and all proceedings subsequent thereto. The notice being insufficient, the court properly sustained his motion. The ruling of the court on the motion of Hetrick is properly presented by bill of exceptions.

OLDS, J. This is an action for damages. The first paragraph of the complaint alleges that "the plaintiff, on the 16th day of August, 1885, was seated in a two-seated carriage, to which two gentle and well-broken horses, both properly harnessed with good and sufficient harness, were properly and securely attached and hitched in the usual way; which said horses were then and there carefully and properly driven by a careful and competent driver, seated in said carriage, and was then and there driving said team and carriage in which plaintiff was seated, as aforesaid, on the public road and highway leading from Cambridge City, Ind., to Jacksonburg; and when about two miles east of said Cambridge City, and in said county of Wayne, and driving carefully along and upon said highway, and in the part thereof usually driven upon by such teams and carriages, they were met at the place in said highway last above named by said defendant, seated upon and riding a

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