writing or printing, the property shall be sold, is not violated by a
judicial sale of the property and its confirmation, if payment of the
purchase price is not made and no bill of sale is executed. (Me.)
International Wood Co. v. National Assur. Co., 288.
8, 9. INSURANCE-Fire-Proof Safe Clause-Failure to Observe
Warranty.-A warranty in a fire insurance policy that the insured
will keep his books of accounts and inventories securely locked in a
fire-proof safe at night, and when the building is not actually open
for business, or in some place not exposed to fire which would destroy
the building insured, is directly within the terms of a statute provid-
ing that no misrepresentation or warranty, unless made with actual
intent to deceive, or, unless the risk or loss is thereby increased, shall
defeat or avoid an insurance policy. Hence, failure to observe the
warranty contained in the fire-proof safe clause does not necessarily
avoid the policy. (Tenn.) Continental Fire Ins. Co. v. Whitaker,
916.
Misrepresentation-Encumbrances.
10. INSURANCE-Misrepresentations-Evidence.-If the appli-
cant for insurance makes correct statements to the insurance agent,
who puts them down incorrectly, and the application is signed by the
insured without reading it, he may prove such facts, and is then
exonerated from the charge of misrepresentation. (Tenn.) Con-
tinental Fire Ins. Co. v. Whitaker, 916.
11. INSURANCE-Encumbrances-Misrepresentations. If the in-
sured makes no statements as to encumbrances, and signs the appli-
cation for insurance without reading it when such application is
written by the insurance agent, the insured is not guilty of misrep-
resentation, although the application falsely states that there is no
encumbrance upon the insured property. (Tenn.) Continental Fire
Ins. Co. v. Whitaker, 916.
12. INSURANCE.-Misrepresentation as to Encumbrances will not,
under the statute of Tennessee, avoid an insurance policy, since an
encumbrance does not increase the risk. (Tenn.) Continental Fire
Ins. Co. v. Whitaker, 916.
13. INSURANCE.-The Right of a Mortgagee to Recover on a
Policy of Insurance in Favor of His Mortgagor is dependent upon
the inception and continuance of a valid contract of insurance be-
tween the insured and the insurer. (R. I.) Smith v. Union Ins. Co.,
882.
14. INSURANCE in Favor of Mortgagee, Construction of Mort-
gage Clause-Want of Insurable Interest in the Mortgagor.-A policy
of insurance providing that the loss, if any, shall be payable to S.
as mortgagee as interest may appear, and that the insurance as to
the interest of such mortgagee shall not be invalidated by any act
or neglect of the mortgagor or owner, nor by foreclosure or other
proceedings or notice of sale relating to the property, nor by any
change in its title or ownership, nor by the occupation of the prop-
erty for a purpose more hazardous than permitted by the policy,
contains two separate contracts of indemnity relating to the same
subject but applying to different interests therein, and may be valid
as to the interest of the mortgagee, though invalid as to the insured
mortgagor, because he had no insurable interest in the property.
(R. I.) Smith v. Union Ins. Co., 882.
15. INSURANCE.-It is not Necessary that the Premium be Paid
by the Person Whose Interest is Insured. Hence, it is no defense
to an action by a mortgagee suing on the mortgage clause contained
in a policy that the mortgagor who paid the premium had no insurable
interest, as the policy was at no time valid as to him. (R. I.) Smith
v. Union Ins. Co., 882.
INSURANCE.-The Assignment of a Policy of Insurance Cov-
ers Only Such Interest as the insured may have in the property at
the time of the insurance and of the loss. The rights of the assignee
cannot be more extensive than the rights of the assignor. (R. I.)
Smith v. Union Ins. Co., 882.
17. INSURANCE-Delay in Making Proof of Loss.-If a policy of
insurance provides that notice and proof of loss must be furnished
within a certain time after loss has occurred, but does not impose a
forfeiture for failure to furnish them within the time prescribed, nor
impose a forfeiture for a failure to comply with other provisions of
the contract, the insured may maintain an action, though he does not
furnish notice and proof of loss within the prescribed time, provided
he does furnish them at some time prior to commencing his action,
although the policy provides that no action can be maintained until
after full compliance with all of its requirements. (Tenn.) Con-
tinental Fire Ins. Co. v. Whitaker, 916.
Adjustment and Arbitration.
18. INSURANCE, FIRE-Adjustment of Loss.-If a fire insur-
ance policy provides that if the insurer and insured differ in esti-
mating the amount of the loss, appraisers shall be appointed to fix
the amount, there must be a real difference between the parties
before a demand for appraisers can be made. The fact that the in-
surer merely declines to pay the amount of loss fixed by an itemized
account made by the insured is not such real difference between them.
(Ky.) Continental Ins. Co. v. Vallandingham, 218.
INSURANCE, FIRE-Adjustment of Loss-Refusal to Submit
to Arbitration.-If a fire insurance policy provides that if the insurer
and the insured differ as to the amount of the loss, appraisers shall
be appointed to fix the amount, and that no suit shall be brought on
the policy until its provisions shall have been complied with, the
failure or refusal of the insured to submit the adjustment of the
loss to appraisers, unless he has good cause therefor, is a good de-
fense to a suit on the policy. (Ky.) Continental Ins. Co. v. Valland-
ingham, 218.
20. INSURANCE, FIRE-Adjustment of Loss-Submission to Ar-
bitration, Waiver of.-A provision in a fire insurance policy that in
case of a difference between the insured and insurer as to the amount
of the loss, that question shall be submitted to appraisers, and that
no suit shall be commenced by the insured on the policy until he
has complied with such provision is inserted wholly for the protec-
tion of the insurer, and if he attempts to enforce it oppressively, or
in bad faith, he must be deemed to have waived the benefit of it.
(Ky.) Continental Ins. Co. v. Vallandingham, 218.
21. INSURANCE, FIRE-Adjustment of Loss-Failure to Request
Arbitration. If a person for whose benefit a clause is inserted in an
insurance contract desires to take advantage of it, he must bring
himself within its terms, else he will not be excused because the
other party has likewise failed. Thus, unless the insurer asks for
arbitration of the loss, before suit brought, if that is provided_for
in the policy, the failure to arbitrate is not a defense. (Ky.) Con-
tinental Ins. Co. v. Vallandingham, 218.
22. INSURANCE, FIRE—Adjustment of Loss-Arbitration.—If,
the insurer demands arbitration of the loss as provided for in the
policy, it must in good faith nominate a competent, disinterested
person as an arbitrator, before it can defend upon the ground that
the insured has failed to keep that part of his contract. (Ky.) Con-
tinental Ins. Co. v. Vallandingham, 218.
23. INSURANCE, FIRE—Adjustment of Loss-Waiver of Arbitra-
tion. The insurer, once having waived the right to demand arbitra-
tion of the loss under the terms of the policy, cannot require that
the matter in dispute be again submitted to arbitrators. (Ky.) Con-
tinental Ins. Co. v. Vallandingham, 218.
24. FIDELITY INSURANCE.-The Failure of an Employé to Sign
a Bond of Indemnity renders it entirely inoperative, where such bond
declares on its face that it will be invalid unless signed by the em-
ployé, and that it is essential to the validity of the bond that his
signature to be thereto subscribed, and that these are conditions
precedent to the right of the employer to recover under the bond.
This freedom from liability on the part of the insurer continues not-
withstanding the receipt of premiums and the issuing of two renewal
receipts, if they declare that they are subject to all the conditions
contained in the original bond. (Md.) Union Central Life Ins. Co.
v. United States Fidelity etc. Co., 313.
25. INSURANCE-Reinsurance, Meaning of "Pro Rata" in Con-
tracts of. If two insurers obtain reinsurance from a third "the loss,
if any, payable pro rata at the same time, and in the same manner
as by such companies," the respective amounts of loss which the origi-
nal insurers and the reinsurer must pay is proportionate to the
amount of the original and the amount of the reinsurance, and this
proportion cannot be changed by any act of the original insurers in
diminishing the amount of the insurance. Hence, if the original in-
surance was for ten thousand dollars and the reinsurance for five
thousand dollars, and afterward the original insurance was reduced
to two thousand dollars, and subsequently a loss occurs, the rein-
surer's liability is for one-half of the last-named sum only. (N. Y.)
Home Insurance Co. v. Continental Ins. Co., 772.
See Benefit Associations.
Intent, definition of, 986.
evidence of other crimes for the purpose of proving criminal,
evidence, what admissible to prove criminal, 992.
INTEREST.
See Damages, 2.
1. JUDGMENTS-Persons not in Being-Ninety-nine Year Lease.
Persons not in esse who may, on the happening of certain contin-
gencies, become interested in a trust estate, may be bound by a de-
cree which approves the making of a lease by the trustee for ninety-
nine years, if persons in esse, whose interests are the same, are be-
fore the court and have their interests protected by the judgment.
(Ill.) Denegre v. Walker, 98.
2. JUDGMENTS Against Public Officers-Conclusiveness Against
County. If, under statutes, the sheriff of a county, in so far as his
powers relate to taxation, is merely a tax collector, a judgment by
default against him in a suit by a taxpayer to enjoin the collection of
taxes, to which the county is not made a party is not conclusive or
binding on it, in a subsequent action by it to collect such taxes. In
such case the sheriff, as tax collector, is not the legal representative
of the county or in privity with it, so as to make a judgment against
him binding upon the county. (Ky.) Henderson County v. Hender-
son Bridge Co., 197.
3. JUDGMENTS-Abatement by Death.-A judgment against a
person upon his conviction for a crime is abated by his death, and
cannot be enforced against his personal representative. (Colo.)
Overland Cotton Mill Co. v. People, 74.
Judgments against governmental bodies, when conclusive on persons
not parties to the action, 208.
against governmental bodies, when conclusive upon taxpayers,
208.
against public officers, collusive, cannot prejudice third persons,
against public officers, effect of, against citizens and taxpayers,
against public officers, effect of, on bondholders, 215-217.
against public officers, effect of, upon another officer of the
same governmental body, 212.
against public officers, effect of, upon their successors in office,
211.
against public officers, effect of, when rendered by default, 205.
against public officers, effect of, when they represent a different
interest, 217.
against the state declaring property to be exempt from taxation,
206.
against the state or the United States, effect of, 205, 206.
against the state when it is a nominal party only, 206.
bondholders, injunctions, when not bound by, 216.
bondholders, when bound by judgments for or against public
officers, 215-217.
counties, judgments against, when conclusive on residents and
taxpayers, 208.
counties, when not bound by judgments against their officers,
governmental bodies, when bound by, 208.
in quo warranto, when do not bind the state. 206.
in ejectment against officers of the state, effect of, 212.
injunction against public officer, effect of, when he represents a
different interest, 217.
municipal corporations. judgments against, when conclusive on
residents and taxpayers, 208.
municipal corporations, when not bound by judgments against
their officers, 211.
Judgments, state, when bound by a judgment against another person
or political body, 206, 207.
state, when bound by a judgment concerning the location of a
county seat, 207.
state, when not bound by a judgment against its agent or of
ficer, 210.
taxpayers, interests of distinct from those of the general public,
are not bound by judgments to which they are not parties,
209.
taxpayers, judgments respecting matters not of public interest
do not bind, 209.
taxpayers, when bound by judgments against municipalities and
other governmental bodies, 208.
taxpayers, when bound by judgments against public officers, 213.
United States, when not bound by a judgment against its agent
or officer, 210.
1. JUDICIAL SALE-Effect of Order Vacating Confirmation.—
After a judicial sale and the entry of an order confirming it, the court
has power to vacate the sale and order of confirmation, and such
vacating determines the status of the title as between the parties to
the sale, and the vacating order cannot be impeached collaterally by
an insurance company for the purpose of showing that a sale had been
made, and one of the conditions of its policy thereby violated. (Me.)
International Wood Co. v. National Assur. Co., 288.
2. JUDICIAL SALE.—Until the Delivery of a Deed of real estate
sold at a judicial sale the title does not pass. (Me.) International
Wood Co. v. National Assur. Co., 288.
3. DELIVERY OF A BILL OF SALE, What Will not be Deemed
to be a. Where a receiver is authorized to sell property, and the
sale is made and confirmed, with directions for him to deliver a bill
of sale on payment of the purchase price, any delivery of such bill in
advance of such payment must be regarded as provisional only, and
not as passing the title to the property. (Me.) International Wood
Co. v. National Assur. Co., 288.
See Executions, 2-5; Executors and Administrators, 10-13.
1. JURY TRIAL-Verdict, When may not be Set Aside.-A court
is not required, or even permitted, to set aside a verdict merely be-
cause the jury came to a conclusion different from that to which the
court would have come. The jurors have the right for themselves
to determine the credibility of the witnesses, how far their stories
are true, and, from the truth of the statements thus made, to make
all legitimate inferences, and, unless their conclusions are palpably
wrong, their verdict cannot be disturbed. (Me.) Butler v. Rockland
etc. St. Ry., 267.
2. TRIAL BY JURY, When not Provided for.-A statute au-
thorizing the search for, and seizure and destruction of, intoxi-
cating liquors kept for sale in a prohibited district, and that any
person on whose premises or in whose custody any such liquor shall
be found is entitled to his day in court, and after notice of the
charge, to an opportunity to present his defense and meet witnesses,
and the benefit of the legal presumption of innocence, a jury not
being mentioned, does not provide for, nor require, a jury trial. (Ark.)
Kirkland v. State, 25.
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