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; Cum- Rep. 762, and Insurance Co. v. Garland, 108 mings v. Insurance Co., 55 N. H. 457; Steen 11. 220, are not opposed to the conclusions v. Insurance Co., 89 N. Y. 315; Shearman above stated. The case first cited involved a v. Insurance Co., 46 N. Y. 527; Hooper v. policy which contained a provision that “if the Insurance Co., 17 N. Y. 424; Ellis v. Insur- title of the property is * * * incumbered, ance Co., 64 lowa, 507, 20 N. W. Rep. 782; * * this policy shall be void." At the Wood, Ins. SS 110, 366.

time the policy was assigned there was a Where an estate is sold and the policy trans- mortgage on the property, which remained ferred to the purchaser, and, upon notice to upon it until after the loss. This condition, the insurer, he assents to it, a new and origi- as the court well says, pertained to the charnal contract of indemnity arises to the as- acter of the risk as it then was or should signee, which he may enforce in his own thereafter be, and when the assignee became name. The policy in such case expires with a party to the condition, he virtually agreed the transfer of the title to the estate, but the that if there was then or should thereafter be assent of the insurer to the assignment of the an incumbrance on the property, he should policy constitutes a new contract. Pratt v. not, in case of loss, be entitled to recover. Insurance Co., 64 Barb. 589; Fland. Ins. The contract provided against subsisting in412, 484; Foster v. Insurance Co., 2 Gray, cımbrances as fully as it did against those 219.

which might be made thereafter, and the gist Aside from the prohibitory clause, policies of the defense which the court sustained was of insurance, prior to any loss, are not in that the incumbrance was allowed to remain. their nature assignable from one person to The court fully recognizes the doctrine of its another without the express consent of the former decisions which hold that an assigninsurance company issuing them. They are inent of a policy, with the assent of the intherefore subject to the common-law rule, the surance company, creates a new contract, and effect of which is that where the assignee of that the assignee is not affected by the acts of a contract gives notice of the assignment to the assignor. The other case relied upon the other party to the instrument, and the was predicated upon a policy which contained latter assents to it, the transaction constitutes a stipulation to the effect that if “the assured a new engagement between one of the parties shall allow the buildings herein insured to to the contract and the assignee of the other, become vacant or unoccupied and so remain, the terms of which are regulated and fixed by * * * this policy shall become void.” It the original contract. Fogg v. Insurance Co., was properly held that this provision was imsupra; Wilson v. Hill, supra; Hooper v. In- ported into the new contract, and became a surance Co., supra; Fland. Ins. 484.

present agreement with the assignee, and In order that a policy of insurance may be that as he permitted the premises to remain effectual, the insured must have an interest unoccupied the company had the right to in the property covered by the contract of in- avoid the policy because he had violated his surance, not only when the contract is en- agreement. The distinction between the tered into, but when the loss occurs. If the cases relied on and the present case is obvious. interest in the property and the interest in In those cases the defenses were not predithe policy become separated, the operation of cated upon acts or defaults of the vendor, but the policy becomes suspended; and if a loss upon violations of the terms of the policy by occurs while the policy is thus suspended, no the vendee himself. The policy involved in recovery can be had. An assignment of an the present case contained no provision insurance policy, without a transfer of the against subsisting incumbrances. Future inproperty insured, would be an idle ceremony cumbrances alone were referred to, and the so far as transferring to the assignee any established rule is that conditions which beneficial interest in the contract. On the create forfeitures will not be extended by conother lanıl, the transfer of the property in-struction. Insurance Co. v. Hazelett, 105 sured suspends the operation of the policy, Ind. 212, 4 N. E. Rep. 582; Symonds v. Inwhich 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 be part of the insured to make known facts tween the purchaser and the insurance com- which the insurer may regard as material to pany, to all intents and purposes the same as the risk is not a breach of a condition in the if a new policy had been issued, embracing policy, avoiding it in case of any omission to the terms of the old. In such a case, no de- make known every fact material thereto, befense predicated on supposed violations of the cause the insured has a right to suppose that conditions of the policy by the assignor will be the insurer will make proper inquiries conavailable against the assignee. Until the lat- cerning all facts except such as are supposed ter himself does some act or permits a condi- I to be known or are regarded as immaterial.

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Short v. Insurance Co., 90 N. Y. 16; Burritt were presented to him, and that he signs v. Insurance Co., 5 Hill, 188; Clark v. In- them; but the general bill is not signed. surance Co., 8 How. 235. In the case last There was not, it is obvious, a compliance cited the court said: “As to the ordinary with the law. Wagoner v. Wilson, 108 Inil. risks connected with the property insured, if 210, 8 N. E. Rep. 925; Stone v. Brown, 116 no representations whatever are asked or Ind. 78, 18 N. E. Rep. 392; Colt v. McCongiven, the insurer must be supposed to as- nell, 116 Ind. 249, 19 N. E. Rep. 106. sume them, and if he acts without inquiry The appellant submitted to the court the anywhere concerning them, seems quite as form of a special verdict, and asked that it be negligent as the insured, who is silent when placed before the jury, but did not request not requested to speak.”

that a special verdict be returned. The court An applicant for insurance is not bound, did not err in refusing to submit the paper unless inquired of, to disclose whether or not prepared by the appellant to the jury. If the the property insured is incumbered. As the appellant had demanded a special verdict a public records usually give information in very different question would be presented. 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. evidence is not in the record. Insurance Co.

v. Blankenship, 94 Ind. 535-548; Stockton v. (120 Ind. 140)

Stockton, 40 Ind. 225-228; Tucker v. Conrad, LOUISVILLE, N. A. & C. Ry. Co. v. KANE et al. 203 Ind. 349, 2 N. E. Rep. 803; Railroad Co.

v. Rowan, 104 Ind. 88–96, 3 N. E. Rep. 627. (Supreme Court of Indiana. Sept. 17, 1889.)

No harm was done the appellant by refusAPPEAL-RECORD-TRIAL-INTERROGATORIES.

ing to require the jury to give a more definite 1. A stenographer's report of the evidence, unsigned by the judge, is not a part of the record.

answer to the twenty-sixth interrogatory pro2. A statement in a separate paper by the judge pounded by the appellant. Answers to other that several special and one general bill of excep, interrogatories very fully covered the matters tions were presented to him, and that he signed referred to in the twenty-sixth interrogatory. them, does not render the papers referred to a part If the court erred at all, and we incline to think of the record.

3. Refusal of the court to submit to the jury a it did err, it was in allowing that interrogatory paper prepared by one party as a form of a special to go to the jury. It is not the object of the verdict is not error, when there is no demand by statute to permit many interrogatories to go to that party for a special verdict.

4. Inconsistency between the answers to inter- the jury, and certainly not to permit the reprogatories and the general verdict is not a ground etition of questions. The statute was defor a new trial in Indiana.

5. In a case where the evidence is not in the signed to elicit material facts, not mere items record, the answers of the jury to the interroga- of evidence. It was not intended that intertories cannot be used to determine whether the rogatories should be employed to harrass or verdict is supported by the evidence. 6. The refusal of a judge to compel the jury is to elicit the facts so that the court may

confuse jurors, but the purpose of the statute to return a definite answer to an interrogatory is not cause for a new trial, if the matters referred pronounce judgment upon them. There is to in the interrogatory are fully covered by the an- no material inconsistency between the answers to other interrogatories.

swers to the interrogatories and the general Appeal from circuit court, Madison county; verdict. Judgment affirmed. D. Moss, Judge. Action by Thomas J. Kane and Theodore

(120 Ind. 23) P. Davis for legal services rendered to the STATE ex rel. HULMAN 0. HARPER, Sheriff, Louisville, New Albany & Chicago Railway

et al. Company. Judgment was rendered for plaintiffs, and defendant appealed.

(Supreme Court of Indiana. Sept. 17, 1889.) George W. Friedley and George R. EL- LIABILITIES OF SHERIFFS-FAILURE TO LEVY Exdridge, for appellant. Kane & Davis, pro se.


Where a debtor owns property not exceedELLIOTT, C. J. This action was brought such ownership is unknown to the sheriff, he

ing the amount exempt from execution, though by the appellees to recover for services ren- and his bondsmen are not liable for his failure to dered the appellant as attorneys. There is levy execution upon said property, in the absence no bill of exceptions containing the evidence, of a showing that the judgment, upon which the

execution issued, was rendered for a tort. and many of the questions discussed by appellant's counsel are not presented by the rec Appeal from circuit court, Montgomery ord.

county; E. C. SNYDER, Judge. There is in the record a paper purporting Action by Herman Hulman against Alexto be the stenographer's report of the evi- ander Harper, as sheriff of Montgomery dence, but it is not signed or attested by the county, and the sureties on his official bond. judge, and is, therefore, entirely without Judgment for defendant, and plaintiff apforce.

peals. The judge recites in a separate paper that John R. Courtney, for appellant. Wright special bills of exceptions and a general one' & Seller, for appellees.

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 solvent. Dick v. Hitt, 82 Ind. 93; Simpout another execution on said judgment, kins v. Smith, 94 Ind. 470; Williams v. Oswhich also came to the hands of the appel- borne, 95 Ind. 317; Williams v. Osbon, 75 lee Alexander Harper, as such sheriff, which Ind. 280. While it is true that the right to he failed to levy; and he permitted this writ claim property as exempt from execution is also to die in his hands. No part of the said the personal privilege of the debtor, as such judgment has ever been paid. While said exemption is for his benefit, the law preappellee held said writs he demanded of the sumes that he will make such claim. Campexecution defendant, Howard Wilcox, prop bell v. Gould, 17 Ind. 133; Williams v. Oserty to satisfy the same, but was informed borne, 95 Ind. 347. 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 bis partner. He was informed, how- and that he may sell the same or make such ever, by the appellant, during the life of said disposition thereof as he may choose, even executions, that the undivided one-half of while the execution remains in the hands of said property was owned by the said Howard the officer. Durbin v. Haines, 99 Ind. 463; Wilcox, and the same was pointed out by the Taylor v. Duesterberg, 109 Ind. 165, 9 N. appellant as subject to execution. Howard E. Rep. 907; Barnard v. Brown, 112 Ind. Wilcox during all said time was a resident 53, 13 N. E. Rep. 401. The command of an householder of Montgomery county, Ind., and execution for the collection of a debt is that during all said time was the owner of the un- the sheriff shall levy the same on the properdivided one-half of said property, the same ty of the execution debtor subject to execubeing owned by him and another as partners tion. Rev. St. 1881, § 682. We think it in carrying on the saloon business, said prop- follows from the authorities here cited that erty consisting of billiard and pool tables, where the execution debtor's property does safe, ice-box, side-bar, bar glasses, decanters, not exceed the amount allowed by law as stoves, tables, desk, pictures, and furniture. exempt from execution, the sheriff is not The interest of said Howard Wilcox during required to make a levy upon such property. all said time was worth $500, and no more, Indeed, he could not do so without exceedand this was all the property owned by him. ing the commands of his writ. It is true Howard Wilcox, at all times, disclaimed the that he would be liable to nominal damages ownership of said property, and the appellee for failing to return the execution within had no personal knowledge of the fact that the time therein specified, but for a failure he was the owner of the same at the time he to levy upon property, upon which his execuheld either of said executions.

tion was not a lien, we are of the opinion Upon these facts the court stated as conclu- that he is not liable. It is claimed by the sions of law that the appellee, and the sureties appellant that as it does not appear from the on his official bond, were not liable to the ap- special finding that the judgment upon pellant for failure to levy said executions, and which the execution in this case issued was the appellant excepted. He appeals to this rendered upon a contract, we must presume court, and assigns as error-First, that the that it was rendered for a tort. We are not circuit court erred in its conclusions of law inclined to adopt this view. It was for the upon the facts above stated; second, that appellant to make out his case. When it the court erred in overruling the appellant's was shown that the property of the execution demurrer to the second and third paragraphs defendant did not exceed $600 in value, we of the appellees' answer.

think it should have been shown by the apIt is earnestly contended by the appellant pellant, if he desired to show a liability on that it was the duty of the sheriff to levy the the part of the sheriff, that the judgment execution in his hands upon the property of was rendered in an action not sounding in the execution debtor, regardless of the ques. I 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, John F. McKee, D. W. McKee, and Berry as the answers set up the same matters here & Berry, for appellant. Urmston & Carter, discussed. There is no error in the record and Jones & Jones, for appellees. for which the judgment of the circuit court should be reversed. Judgment affirmed. OLDS, J. This is a proceeding for the

drainage of certain real estate under the (150 Mass. 54)

drainage act of 1883. The original petition COMMONWEALTH V. JOHNSON et al.

was filed on the 16th day of April, 1884, and (Supreme Judicial Court of Massachusetts. on the 17th day of September, 1884, an amendBerkshire. Sept. 16, 1889.)

ed petition was filed. At the November term, LARCENY-EVIDENCE.

1884, of said court, proof of posting notices Where, on trial for larceny of sheep alleged to was filed, and the court ordered the cause belong to a certain person, it appears that the latter's sheep were in a pasture and were stolen at docketed as an action pending, and referred the same time as those of one P., evidence that some the petition to the commissioners of drainsheep in a flock found in defendants' possession age, with orders to report on a day named. shortly after the larceny, which flock resembled in The commissioners made report which innumber and marking the sheep stolen, were those of P., is admissible as tending to identify the cluded lands not named in the petition, and whole flock as that stolen, and it is immaterial notice was given to the owners of the land that such evidence may also prove another crime. included in the report and not included in

Exceptions from superior court, Berkshire the petition. At the April term, 1885, the county; EDGAR J. SHERMAN, Judge. commissioners of drainage filed an amended

Indictment of Henry Johnson and others report. One Robert Darr, whose lands were for larceny of sheep alleged to be the prop- reported as benefited, remonstrated, and erty of one Coleman. Defendants were con- there was a trial and finding in favor of Darr victed, and except.

on his remonstrance; and the petition again J.C. Crosby and H. C. Joyner, for defend- referred to the commissioner of drainage, and ants. A. J. Waterman, Atty. Gen., for the an order was finally made for the commisCommonwealth.

sioners to report on the first day of the February term, 1886.

They failed to report MORTON, C. J. This is an indictment for upon that day, and on the second day of said the larceny of a number of sheep alleged to term the petitioners filed a petition stating be the property of one Coleman. There was the reasons for the failure of the commisevidence which would justify the jury in sioner to report, and the time was extended. finding that the sheep of Coleman were in a Various steps were taken, and finally a repasture, together with sheep of one Parsons, port was filed by the commissioner. Some and that all the sheep of both owners were of the persons whose lands were assessed stolen at the same time. There was evidence made a special appearance and moved to set tending to show that a short time afterwards aside the report, and, without their motions a flock of sheep was found in the possession being passed upon, appeared and filed reof the defendants, which, by its number and monstrances. 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 ings, stating, among other reasons for the fact that it might prove another crime com- setting aside of the report and the dismissal mitted by the defendants is immaterial. of the proceedings, that no notice had been Com. v. Riggs, 14 Gray, 376. Exceptions given of the filing and pendency of the petioverruled.

tion, as required by the act of 1883, and that

the only notice which had been given by said (120 Ind. 19)

petitioner in said cause was a notice stating SITES V. MILLER et al.

that “at the next term of the Franklin coun(Supreme Court of Indiana. Sept. 17, 1889.) ty circuit court the said Sites would petition DRAINAGE-NOTICE-WAIVĖR.

the said court for the drainage of certain real Where a petitioner for drainage has failed to estate, describing it,” and that a large numgive the statutory notice, though some of the par, ber of the persons, whose lands were affected ties interested have waived the proper notice, and the cause has proceeded to a final report of the by such drainage, had not appeared to said commissioners, it is proper, upon motion of a par- petition and had in no way submitted to the ty who has not made such waiver, to set aside the jurisdiction of said court.

The court susnotice and subsequent proceedings.

tained the motion of said Hetrick and made Appeal from circuit court, Franklin county; a finding that the “material allegations set FERDINAND SWIFT, Judge.

forth in said motion were true, and that all Proceeding by Jacob Sites against Perry of the notices concerning the filing of the peMiller, Lafayette M. Hetrick, and others for 'tition in this cause were that the petitioner

would file a petition at the next term of the At this stage of the case, in order to proFranklin circuit court, and that he had filed ceed further as to those who had not waived his petition;" and the court ordered “that notice at least, it was necessary that a furthe order of the court docketing this cause as ther and proper notice of the filing of the pean action pending in said court, and the or- tition should have been ordered and given. ders referring said petition to the commis. The petitioners refused to give any further sioners of drainage, and the report of said notice, and the court; on its own motion, commissioners be set aside, and held for dismissed the proceedings and petition; but naught;" to which ruling of the court in there is no bill of exceptions presenting the sustaining said motion, appellant excepted, question as to the action of the court in the and assigns the same as error. Hetrick had dismissal of the cause; and the question as not waived notice in this case. The first to the correctness of the ruling of the court step taken by him was his special appearance, in dismissing the petition as to those who and motion to dismiss on the grounds of the had waived notice, is not properly presented insufficiency of the notice. The case of Mc- for the decision of this court. Judgment afMullen v. State. 105 Ind. 334, 4 N. E. Rep. firmed, with costs. 903, is decisive of the question in this case. The motion of Hetrick was properly sustained. The record shows that after the

(120 Ind. 46)

HOLLAND V. BARTCHI. court sustained the motion of Hetrick, and at a subsequent term of the court, the peti- (Supreme Court of Indiana. Sept. 18, 1889.) tioner appeared in court and notified the NEGLIGENCE - PLEADING-BICYCLE-RIDING-LAW court that he would not give any further no

OF THE ROAD. tice of the filing of the petition, and refused 1. In an action for damages, allegations that to give any further notice of the filing of defendant negligently and carelessly rode his bi

cycle in the center of the road at the rate of 15 such petition. Whereupon the court, on its miles an hour, up to within 25 feet of the faces of own motion, dismissed the cause and peti- plaintiff's horses, whereby they became frightened, tion, at the costs of the petitioner, to which are not sufficiently specific as to defendant's negli action of the court the petitioner objected and is in the manner of riding such bicycle, and not in

gence, where the negligence sought to be charged excepted.

the speed and place in which it was ridden. Counsel for appellant contends that as 2. A person in a carriage drawn by horses, and some of the parties whose lands were af- the rider of a bicycle, have equal rights upon the

highway; and allegations that defendant rode a bifected by the proposed drainage had appeared cycle in the center of the road at the rate of 15 and filed remonstrances, they had thereby miles an hour, up to within 25 feet of the faces of waived notice, and that the action of the plaintiff's horses, whereby they became frightened court in dismissing the proceedings as to and ran away and injured plaintiff, do not state a such persons who had waived notice was erroneous; but this question is not properly Appeal from circuit court, Wayne county; presented to this court. To review the ac- D. W. COMSTOCK, Judge. iion 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 OLDS, J. This is an action for damages. this state of facts: The petitioner filed his The first paragraph of the complaint alleges petition for the drainage of certain real es- that “the plaintiff, on the 16th day of Autate, but failed to give the proper notice of gust, 1885, was seated in a two-seated carthe pendency of the petition; the cause pro- riage, to which two gentle and well-broken ceeded step by step until a final report was horses, both properly harnessed with good and made and filed by the commissioners of drain- sufficient harness, were properly and securely age; a few of the parties interested appeared, attached and hitched in the usual way; which and without objecting to the notice, remon- said horses were then and there carefully and strated, whereby they waived the giving the properly driven by a careful and competent proper notice of the filing of the petition. driver, seated in said carriage, and was then Carr v. Boone, 108 Ind. 241, 9 N. E. Rep. and there driving said team and carriage in 110.

which plaintiff was seated, as aforesaid, on At this stage of the proceedings Hetrick, the public road and highway leading from whose lands were described in the petition, Cambridge City, Ind., to Jacksonburg; and entered a special appearance and moved to when about two miles east of said Cambridge set aside the notice and all proceedings sub-City, and in said county of Wayne, and drivsequent thereto. The notice being insuffi- ing carefully along and upon said highway, cient, the court properly sustained his mo- and in the part thereof usually driven upon tion. The ruling of the court on the motion by such teams and carriages, they were met of Hetrick is properly presented by bill of ex- at the place in said highway last above named ceptions.

by said defendant, seated upon and riding a

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