of habeas corpus or upon such writ when issued, a final order of the
Circuit Court denying petitioner's application for discharge on a writ of
habeas corpus cannot be reviewed by the Circuit Court of Appeals on a
writ of error, but only on an appeal.
-Rainbow v. Young, 154 Fed. 489...
In civil actions, see "Appeal and Error," § 8.
See "Municipal Corporations," § 2; "Navigable Waters," § 1.
Duties, see "Customs Duties."
Habeas corpus, see "Habeas Corpus."
Of public land, see "Public Lands," § 1.
Review of order relating to Indian land as dependent on finality of determina-
tion, see "Appeal and Error," § 1.
Leases of allotments of Indian minors in the Indian Territory, confirmed
and approved by the trial courts of that territory since April 26, 1906,
are not subject to the approval or disapproval of the Secretary of the
Interior, but the orders of the courts confirming and approving them are
final.
-Morrison v. Burnette, 154 Fed. 617...
INDICTMENT AND INFORMATION.
For offenses against postal laws, see "Post Office," § 1.
§ 1. Joinder of parties, offenses, and counts, duplicity, and election.
Averments in an indictment that artifices used in furtherance of a
scheme to defraud, to be carried on through the use of the mails, were
intended to give one understanding of the scheme to one class of in-
vestors and another and different understanding to a different class, both
being deceived and defrauded by the same artifices, do not make out two
separate schemes so as to render the indictment bad for duplicity.
-Gourdain v. United States, 154 Fed. 453...... ...83 C. C. A. 309
Of patent, see "Patents," § 5.
Of trade-mark, see "Trade-Marks and Trade-Names," § 1.
Necessary parties in suit for, see "Equity," § 2.
Restraining proceedings in United States courts, see "Courts," § 4.
Restraining use of patented devices, see "Patents," § 4.
Review of discretionary rulings, see "Appeal and Error," § 8.
§ 1. Violation and punishment.
A decree of a federal court foreclosing mortgages on the property of
corporation and directing a sale thereof, after determining the rights
and priorities of the parties under mortgages given by successive owners.
provided that the purchaser at the sale should hold the property free
and discharged from the lien of all the mortgages and free from all
claims of every kind or nature of any of the parties or those claiming
under them; also, after reserving certain questions for future disposition.
it provided that "jurisdiction of this cause is retained in this court for
the purpose of determining all such reserved questions and of enforcing
the conditions of this decree and of any further order made herein, and
any party to this proceeding may apply to the court for further orders
and directions at the foot of this decree." A sale was made, and certain
dissatisfied bondholders under one of the mortgages, who were not parties
to the suit, except by representation by the trustee in the mortgage, ap-
peared individually and objected to its confirmation. Their objections
were overruled and the sale confirmed by an order, which, inter alia.
prohibited and enjoined all parties to the suit and all persons claiming
through or under them, their attorneys, solicitors, etc., "from setting up
any pretended or alleged title against the title of the purchasers." Such
dissatisfied bondholders, having been denied an appeal on the ground
that they were not parties, filed a bill in a state court against the pur-
chasers and others, praying for a foreclosure of their mortgage, where
upon their solicitor was cited into the federal court on petition of the
purchasers and adjudged in contempt for violation of its injunction in
instituting such suit. Held, that the injunctional provision of the order
of confirmation was not within the power reserved by the court by the
decree to enforce its conditions, and, not being within any issue in the
suit, was without jurisdiction and void as against the individual bond-
holders, or their counsel, who were not parties in any sense which would
confer jurisdiction over their persons, to make such order binding upon
them and to deprive them of their right to a hearing on their alleged in-
dividual rights in any court of competent jurisdiction; and that it af-
forded no basis for the proceedings in contempt.
-Lewis v. Peck, 154 Fed. 273.....
Of fraudulent grantor, see "Fraudulent Conveyances," § 1.
Of national bank, see "Banks and Banking," § 1.
Evidence of custom in action on policy, see "Customs and Usages."
Harmless error in action on indemnity bond, see "Appeal and Error," § 8.
Rights of guarantor under fidelity bond, see "Guaranty,” § 1.
Scope and extent of review in action on fidelity bond, see "Appeal and Error,"
§ 8.
§ 1. The contract in general.
Where a fire policy insuring property in Virginia was executed, ac-
cepted, and delivered in New York by a company not authorized to do
business in Virginia and having no agent there, it was not affected by
Va. Code 1904, p. 630, § 1296a, providing that fire insurance companies
not incorporated by the laws of the state, but legally authorized to do
business therein, shall not make contracts of insurance on property in
Virginia, save through regularly constituted agents residing within the
state.
-Globe & Rutgers Fire Ins. Co. of New York v. David Moffat Co.,
154 Fed. 13....
...83 C. C. A. 91
Where a New York insurance policy was issued on property located
in Virginia, and provided that it should expire "at noon" on a certain
day, the contract, being performable in Virginia, was not governed by
Laws N. Y. 1892, p. 1491, c. 677, § 28, providing that an act required to be
performed within a specified time should be performed according to
standard time.
-Globe & Rutgers Fire Ins. Co. of New York v. David Moffat Co.,
154 Fed. 13......
..83 C. C. A. 91
Where insured prepared an elaborate rider describing the property
intended to be covered, which was attached to the policy, such rider should
not be expanded as against the insurer beyond its plain and ordinary
meaning, on the theory that the policy should be interpreted against the
insurer.
-Globe & Rutgers Fire Ins. Co. of New York v. David Moffat Co.,
154 Fed. 13.....
.....83 C. C. A. 91
Plaintiff tanning company prepared an elaborate rider to be attached
to its insurance policies, attempting to specify every species of property
for which insurance was desired on plaintiff's premises, which rider re-
ferred to a plan of the premises on file in the office of plaintiff's insurance
broker. The rider attached to the policy in question provided no insur-
ance on "bark ground and unground" contained in the building marked
"3" on the plan, nor on bark and liquors in the leach house and coolers
marked "2" on the plan, or on bark and liquors contained in a leach house
marked "16," nor on the bark sheds on the tannery premises marked "S"
on the plan, but $10,000 on "bark in piles and under sheds on the tan-
nery premises marked 8 on the plan." Held, that the policy should be
construed to include bark in piles on that part of the tannery premises
marked "8," and did not include a bark pile in a square plot on the
premises not so marked, but in proximity to a bark shed.
-Globe & Rutgers Fire Ins. Co. of New York v. David Moffat Co..
154 Fed. 13..
....83 C. C. A. 91
An employer's liability bond is essentially a contract of indemnity
against loss, governed by the rules applicable to ordinary life and fire in-
surance policies.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545.....
...83 C. C. A. 431
An application for insurance is a proposition to the insurance company
which must be accepted as made, if at all.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545.....
...83 C. C. A. 431
Where there is doubt and uncertainty concerning the effect of corre-
spondence on an employer's liability bond, such doubt should be resolved
in favor of sustaining the contract as executed in favor of the insured.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545......
.83 C. C. A. 431
§ 2. Cancellation, surrender, abandonment, or rescission of policy.
Where an assessment life insurance company and a policy holder differed
as to the construction of the contract, and the company made an assess-
ment which the policy holder thought excessive and refused to pay, but
tendered a smaller sum, his action was an election to stand on the contract
as still in force, which election was final; and he could not afterward
maintain an action in disaffirmance of the contract on the ground that
the act of the company in making the assessment was an anticipatory
breach.
-Blakely v. Fidelity Mut. Life Ins. Co., 154 Fed. 43. .83 C. C. A. 155
Under the law of New York the wrongful refusal of a life insurance
company to receive premiums on a policy which are due by its terms and
to continue the policy in force is a breach of the contract which entitles
the policy holder to maintain an action to recover damages therefor.
-Michaelsen v. Security Mut. Life Ins. Co., 154 Fed. 356.
§ 3. Avoidance of policy for misrepresentation, fraud, or breach of
warranty or condition.
A single standard form of fire insurance policy adopted by a state can-
not be construed as intended for use only in the insurance of real prop-
erty alone or personalty alone, but may be used for the joint insurance
of both, and, where so used, a provision that it shall be void, "if the
subject of insurance be personal property and be or become incumbered
by a chattel mortgage." applies and renders it void as to both realty and
personalty, where there were chattel mortgages on the personalty covered
thereby when it was issued, which fact was not disclosed to the insurer.
-Fries-Breslin Co. v. Star Fire Ins. Co., 154 Fed. 35. .83 C. C. A. 147
§ 4. Forfeiture of policy for breach of promissory warranty, cove-
nant, or condition subsequent.
An original employer's liability bond was issued in 1901, insuring plain-
tiff against the employé's misconduct for a year. It was renewed for
a new consideration for the succeeding year, and again for the years
1903 and 1904; the renewal reciting that it was made in consideration of
$20 premium, and continued the bond in force to June 1, 1904, "subject
to all the covenants and conditions thereof." Held, that the renewal did
not include a statement issued February 24, 1903, in which plaintiff
represented that checks signed by the insured employé should be safe-
guarded by certain other signatures, so that a failure to perform such
representation did not relieve defendant from liability on the bond.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545......
...83 C. C. A. 431
An employer's liability bond provided that the insurer should indemnify
the employer against fraudulent or dishonest acts of the employé amount-
ing to embezzlement or larceny, subject to the condition that the insurer
should be notified in writing of any fraudulent or dishonest act on the
part of the employé which might involve a loss for which the company
was responsible, immediately after the occurrence of such act should
have come to the employer's knowledge. Held, that the notice required
was one which would charge the employé with the commission of a
felony, and hence the employer was not bound to give such notice until it
had acquired knowledge sufficient to justify a reasonable man in making
such a charge.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545.....
..83 C. C. A. 431
5. Estoppel, waiver, or agreements affecting right to avoid or for-
feit policy.
Where the execution by a servant of an employer's liability bond was
not made a consideration for nor a condition of the creation of liability
by the insurer, but the latter thereafter continued the bond, which was
not signed by the servant, three times for a further new consideration,
subject to the conditions and covenants of the bond, defendant was not
entitled to object that it was not liable on the last renewal, because the
bond was not originally signed by the servant as contemplated.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545......
...83 C. C. A. 431
6. Risks and causes of loss.
It was error for the court under such circumstances to charge that the
term "wound" as used in the policy included any lesion of the body re-
sulting from external violence, whether accompanied by a rupture of the
skin or mucous membrane or not.
-Fidelity & Casualty Co. of New York v. Thompson, 154 Fed. 484....
83 C. C. A. 324
An accident policy covered, inter àlia, blood poison sustained by physi-
cians or surgeons resulting from septic matter introduced into the system
through "wounds" suffered in professional operations. Plaintiff, a den-
tist, was operating on a patient, who suddenly coughed, and particles of
septic matter from his mouth were thrown against the mucous mem-
brane of plaintiff's eye. The septic matter, without abrading, penetrating
or bruising the membrane, infected it and caused blood poisoning. Held,
that plaintiff had not received any wound, within the meaning of the pol-
icy, and was not entitled to recover under such provision.
-Fidelity & Casualty Co. of New York v. Thompson, 154 Fed. 484...
83 C. C. A. 321
7. Extent of loss and liability of insurer.
A marine policy, insuring freight on board, or not on board, valued
at £2,062, or actual freight, if more, "full interest admitted, the policy
being deemed sufficient proof of interest," should be construed to cover
the freight at risk at the valuation specified, though the freight actually
at risk was much less in value.
-New York & Cuba Mail S. S. Co. v. Royal Exch. Assur., 154 Fed.
.83 C. C. A. 235
Where a marine policy insured freight on board, or not on board, val-
ued at a specified sum, or actual freight, if more, full interest admitted,
and of the actual freight insured lost the whole, except a small salvage.
there having been no abandonment, the percentage of actual freight lost
should have been applied to the value in the policy.
-New York & Cuba Mail S. S. Co. v. Royal Exch. Assur., 154 Fed.
315....
.83 C. C. A. 235
In an action on an employer's liability bond, evidence held to sustain
a finding that plaintiff gave immediate notice of the employé's default,
after acquiring knowledge that such default amounted to the crime of
embezzlement or larceny, against which the bond only granted indemnity.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545....
...83 C. C. A. 431
In an action on an employer's liability bond, the court charged that the
employer's statement, made by plaintiff and pleaded by defendant as be-
ing the basis and part of the contract, was confessed by the pleadings and
admitted to have been executed and delivered to plaintiff by defendant.
Held, that such instruction should be construed to mean that plaintiff
admitted only that the statement was executed and delivered for some
purpose, and not that it was the basis of the contract.
-Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154
Fed. 545..
..83 C. C. A. 431
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