Insurance Company v. O'Maley.
application, ordinarily, to proceedings by suit of levari facias for the sale of real estate.
"In The Commonwealth Insurance Co. v. Berger et al., 6 Wright, 285, a condition precisely the same as that before us was construed by the Supreme Court. In that case, after the policy was issued, and before the fire occurred, an execution was placed in the hands of the sheriff, and a levy was made on the goods of the insured, but they were not taken into the custody of the officers, or left in charge of a watchman, nor was the actual possession of the insured disturbed. While this condition of affairs existed the goods were destroyed by fire, and the insurance company defended against payment of the loss on the ground that the insurance ceased when the levy was made. The court held that the levy did not terminate the risk, and that the company was liable.
"The principles of this case rule the one before us; the fact that the levy was on personal property cannot change the principle of construction. If there is any difference, the reason would be still stronger in the case of a levy on real estate, which is always a mere technical seizure without any interference with the possession at least until after sale.
"The plaintiffs are therefore entitled to judgment."
The defendant took this writ, and assigned for error the entry of judgment for the plaintiffs on the question of law reserved.
William L. Chalfant, for plaintiff in error.
W. H. Sutton & Son, for defendants in error.
PER CURIAM. The judgment of the court below is sufficiently sustained in the opinion of Judge STERRETT.
ACKNOWLEDGMENT.
Of deed-certificate of] See DEED, 128.
To a stranger will not defeat the statute of limitations.] See LIMITATION OF
ACTIONS, 280.
1. For property wrongfully taken.] Assumpsit will not lie for the value of
personal property against one who has wrongfully taken it, provided he
still has it in his possession; the action must be tort. Moses v. Arnold
(Iowa), 239, and note, 242.
2. Lis pendens — effect of delay in prosecuting action.] The benefit of the rule
relating to lis pendens may be lost by such long-continued inaction as
amounts to gross negligence in the party prosecuting, when such inaction
is to the prejudice of innocent persons. Fox v. Reeder (Ohio), 370.
-] A mortgage was executed in 1837, upon which bill of foreclosure was
filed in 1840, decree taken and order for sale issued in 1842. Save continu.
ances, no further action was had in the case until 1868. In the meantime,
the mortgagor, who had remained in open and notorious possession, had sold
portions of the premises to innocent purchasers, without actual notice of
the pending suit. Such purchasers, and those under whom they claimed,
had remained in actual possession more than twenty-one years, when the
plaintiff in the foreclosure suit, in 1869, caused to be issued another order
of sale. Held, that the failure to take any action in the cause from 1842
to 1868, unexplained, was such negligence as prevented an enforcement of
the decree against actual purchasers, without actual notice. Ib.
For enticing away servants.] See MASTER AND SERVANT, 475.
When it lies for deficiency in sale of land.] See VENDOR AND PURCHASER,
Statutory allowance to widow-effect of ante-nuptial agreement upon.] A
statute provided that upon the death of a married man certain specific
articles should be allowed to his widow. Held, that such allowance was
for the benefit of both widow and children, and that where there were
children the allowance could not be affected by an ante-nuptial agreement.
Phelps v. Phelps (Ill.), 149.
See ADMINISTRATOR; EXECUTOR.
Sale by ―by whom to be made - sale by auctioneer.] Where an administrator
is authorized by a decree of court to sell land for the payment of debts,
the sale must be made by him personally or by his agent in his presence.
If made by an auctioneer in the absence o the administrator it is not
valid. Sebastian v. Johnson (Ill.), 144, and nove, 145.
Liability of, for rents unlawfully collected.] See WIDOW, 362.
ADMIRALTY LAW.
See JURISDICTION, 397.
Of carrier-fraudulent issue of bill of lading by.] See CARRIER, 26, 603.
When individually liable on notes.] See NEGOTIABLE INSTRUMENTS, 175, 177
ALTERATION OF INSTRUMENTS.
See NEGOTIABLE INSTRUMENTS.
AMENDMENT.
See GRAND JURY, 552.
1. Injury to dog-license-statutory construction · any person."] A statute
authorized" any person " to kill a dog going at large and not licensed and
collared. In an action to recover for the killing of plaintiff's dog by
defendant's dog, held, no defense that plaintiff's dog was not licensed and
collared, as defendant's dog was not a "person.' Heisrodt v. Hackett
(Mich.), 529.
2. Liability of owner of dog for injury.] One injured by the bite of a dog
may recover damages of its owner on proof that the dog was vicious and
that the owner knew it, without showing that it had ever before bitten
any one. Rider v. White (N. Y.), 600.
Unlawful detention.] See ASSAULT, 669.
Liability of servant who burns his master's house by procurement of master.]
A servant who sets fire to his master's house by his master's procurement
for the purpose of defrauding the insurers is not guilty of arson either at
common law or under a statute making it arson to burn the dwelling-
house of another. State v. Haynes (Me.), 569.
Arrest—unlawful detention.] A constable arrested, without warrant, a per-
son who was intoxicated, and imprisoned him in the “lock-up” until he
became sober, when he discharged him without taking him before
magistrate. Held, that the constable was guilty of a criminal assault and
battery. State v. Parker (N. C.), 669.
Of damages for right of way of railroad.]
ASSESSMENTS FOR LOCAL IMPROVEMENTS.
Rule as to constitutional law.] A statute provided that the cost of improv
ing streets and roads should be assessed upon the abutting property in
proportion to the frontage. Held, unconstitutional as applied to rural or
suburban property. Seeley v. Pittsburgh (Penn.), 760.
See CONSTITUTIONAL LAW, 321.
Fund due from charitable societies.] See POWER, 52.
1. Set-off.] The assignment of a non-negotiable demand, arising on contract,
before due, defeats a set-off by the debtor of an independent cross-demand,
on which no right of action had accrued at the time of the assignment.
Fuller v. Steiglitz (Ohio), 312.
2. Conflict of laws.] An assignment of personal property and choses in action
by an insolvent debtor for the benefit of creditors, in conformity to the
laws of the State of New York, where such debtor resided and did busi-
ness, operates to transfer the right of action to recover said choses in
action to the assignee, and he may maintain an action as such assignee
in the courts of this State, to collect the same, although said assignment,
as authorized by the laws of New York, gives preferences to certain of
the creditors. Ib.
8. Lex domicilii.] In case of such an assignment of choses in action, the law
of the domicile of the assignor controls and determines what is a sufficient
transfer to authorize the assignee to collect the same. Ib.
4. Action by assignee—inter-state comity.] The principles of comity between
States will allow such assignee to maintain an action, in the courts of this
State, against one of its citizens, to collect the same, notwithstanding
such preferences, in the absence of any set-off or other defense to such
action, or of any lien or charge against said claim under the laws of Ohio
by the debtor. Ib.
Of trade-mark.] See TRADE-MARK, 44.
For property wrongfully taken.] See ACTION, 239.
Of exempt property — homestead.] See BANKRUPTCY, 278.
Cannot confer jurisdiction.] See JUDGMENT, 340.
1. Of stocks-action.] G., owning shares of the Marietta and Cincinnati
Railroad stock, in 1856-7, transferred the same to F., who gave to G.
written obligations for its return, substantially as follows: "Borrowed
of William Greene one hundred and nine shares of Marietta and Cincin-
nati Railroad stock, drawing interest at eight per cent, to be returned on
demand." Afterward, the Marietta and Cincinnati Railroad Company,
having become hopelessly insolvent, in 1860, a mortgage on the road was
foreclosed; all its property and rights sold; sale confirmed and deed made
to the purchaser; and afterward all the property, rights and fran-
chises of the Marietta and Cincinnati Railroad Company having been
conveyed to a new corporation, the old corporation ceased to exist in
fact, and its stock, from that time on, ceased to have a legal existence,
and had no value. Held, the transaction between G. and F. was in the
nature of a mutuum, and payment in discharge of the loan could be made
by a return of an equal number of shares of stock of the Marietta and
Cincinnati Railroad Company without regard to its market value. Fos-
dick v. Greene (Ohio), 328.
2. Of stocks to be returned on demand.] When, by the terms of the contract,
the borrowed stock is to be returned on demand, it is meant that an
equal number of shares of stock of the same company shall be returned,
and no cause of action accrues to G. until demand is made or waived, or
fact exists that avoids the necessity for demand. b.
-] The financial condition of the Marietta and Cincinnati Railroad Com-
pany; the subsequent existence, or non-existence of the corporation, or its
stock as a representative of value, will not affect the construction of
the contract. Its terms determine the duties and liabilities of the par-
ties each to the other. Ib.
4. Demand.] If the lender has made no demand during the legal existence
of such old company, or of its stock, and until after a return of such stock
has become impossible, without fault of the borrower, his right to a
return of such stock is gone, and he is not damaged by a failure after-
ward to return the same. Ib.
5. Damages.] When a cause of action does accrue in such case, the measure of
damage will be the market value of such stock at the time the cause of
action accrued. If at that time the stock was worthless, only nominal
damages can be recovered. Ib.
By national bank of deposits for safe-keeping.] See NATIONAL BANK, 35
1. Forged check -recovery by drawee of money paid on.] The defendant re-
ceived a check in good faith and for value, but afterward had reason to
doubt its genuineness. He presented it to plaintiff's bank, on which it
was drawn, and demanded payment without disclosing his suspicions.
The teller expressed doubts as to the signature, but said he would pay it
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