OMISSION OF ASSURED TO DISCLOSE HIS INTEREST.
such party be stated in this policy": Held, that this condition did not
require the assured to disclose his interest when he made the applica-
cation; on the contrary, by implication, it excused him from so doing.
Norwich Fire Ins. Co. v. Boomer, 442.
DESCRIPTION OF INTEREST Of assured.
10. Of the description of an interest in a trustee. A policy issued to
the owner of property, contained, in the body of it, this clause: "Loss,
if any, payable to Elias Greenebaum, trustee, as his interest may appear.”
This was held to be a sufficient description of the interest of Greene-
baum, who held a deed of trust upon the property, and a compliance
with a condition in the policy that an interest in the premises less than
an absolute estate must be stated therein. Commercial Insurance Co.
v. Spankneble, 53.
OCCUPANCY OF PROPERTY INSURED.
11. As to a continued occupancy of the premises insured. Under a
clause in a policy upon a brewery, which provided that if the premises
should be vacant or without occupant during the term of insurance, the
policy should become void, if the premises were in the same condition
in that respect at the time of the loss, they were when the policy was
issued, and such condition was known to the agent at the time, the right
of recovery by the assured will not be affected by the fact that the
premises were without an occupant at the time of the loss. Ibid. 53.
12. But where the building insured was used as a brewery, and was
not occupied as a residence when insured, it can not be said it had
become vacant, because no one resided in the brewery when it was
destroyed. Ibid. 53.
PROHIBITION OF SALE OF PROPERTY INSURED.
13. Construction thereof. A policy upon a building occupied as a
brewery, covered, also, a steam boiler and connections, vats, tubs, &c.,
contained in the building, and stated, as one of the conditions, that “in
case of any sale, alienation, transfer, conveyance, or change of title in
the property insured," the insurance should be void. This was held to
relate alone to the real estate, and did not operate as a prohibition of
the sale of the articles of personal property covered by the policy.
Commercial Ins. Co. v. Spankneble, 53.
14. But the various articles were separately insured, the risk on
each being specified, and if the condition prohibiting the sale did relate
to the personalty, it would be a fair and reasonable construction to
say, that the sale named in the condition referred to each item of sepa-
rate insurance, and that the sale of one class separately insured would
not affect the others. Ibid. 53.
15. And where the assured was a married woman, a sale of property,
even if within the prohibition, made by her husband without her
INSURANCE. PROHIBITION OF SALE OF PROPERTY INSURED.
procurement or consent, would not affect her rights under the policy.
Commercial Ins. Co. v. Spankneble, 53.
16. Nor would a mortgage upon the realty constitute a sale or trans-
fer thereof, within such a prohibitory clause. And in this case, espe-
cially, such a construction would be excluded by an explanatory clause
in the policy, which was, that "an entry for foreclosure of mortgage,
or the levy of an execution, or an assignment for the benefit of credi-
tors, shall be deemed an alienation of the property." Ibid. 53.
PRELIMINARY STATEMENT OF LOSS.
17. Whether conclusive. It has been held by this court that, where
a party, in making an account of his loss under an insurance, to be
submitted with the preliminary proofs, omits any article therefrom,
even by inadvertence, he will be concluded thereby, if the company
I settles the loss promptly according to the account exhibited; but if
the assured is compelled to resort to his action to obtain justice, he may
prove the loss of any article inadvertently omitted from his account.
Commercial Ins. Co. Chicago v. Huckberger et al. 464.
STATEMENT OF LOSS UNDER OATH.
18. Whether conclusive. Where the assured, besides the preliminary
proofs, is required to submit to an examination under oath, touching
the condition of his affairs as connected with the insurance, and upon
such examination the company withhold his books of account from him,
so that he must speak from memory alone, if he make a mistake in his
statement he will not be concluded thereby, but it will be open to cor-
rection. Ibid. 464.
SEIZURE OF PROPERTY INSURED.
19. By a government officer. A quantity of cotton, situated in the
State of Mississippi, was insured in an office in Chicago. At the time
it was insured, the place where it was situated was under military occu-
pation by the United States, and it was held, that the mere seizure of
the property under the order of a government office, without evidence
of its condemnation, or of an act of forfeiture, would not divest the
owner's title, or affect his right to recover the insurance. Keith et al.
v. Globe Ins. Co. 518.
INSURANCE BY A MORTGAGOR.
20. In the name of his mortgagee. Where a mortgagor, in pursuance
of an agreement for further security, pays the premium on a policy of
insurance effected on the mortgaged property in the name of the mort-
gagee, the property being afterwards destroyed, the fact of the mort-
gagor having paid the debt secured by the mortgage, will not prevent
a recovery of the insurance against the company. In such case, the
mortgagor is the beneficial party, and has the right to recover the
same in the name of the mortgagee. Norwich Fire Ins. Co. v. Boomer,
442.
INSURANCE. Continued.
INSURANCE BY A MORTGAGEE.
21. In his own name. But, it seems, where a mortgagee applies for
a policy, pays the premium, and effects the insurance in his own name,
the company, on the occurrence of loss and payment by them of the
insurance to the mortgagee, would be entitled to subrogation, and to
an assignment of the mortgage. In such a case, the insurance would
be considered as a further security of the debt, and on the principle,
that a surety who pays the debt may resort to the principal debtor for
payment, the insurer could recover from the mortgagor. Norwich Fire
Ins. Co. v. Boomer, 442.
INSURANCE BY A MARRIED WOMAN.
22. Whether a married woman is the absolute owner of her own realty.
A married woman may insure a building which she owns, and which
is situate upon ground to which she holds the title in fee, and she will
be regarded as being the absolute owner of such property, and within
the requirement in a policy thereon, which provides that if the inter-
est of the assured be not an absolute ownership, it should be so stated in
writing, with the true title of the assured, although her husband may
have acquired an estate by the curtesy in the premises before the pas
sage of the married women's act of 1861. Commercial Ins. Co. v.
Spankneble, 53.
REFORMING A MISTAKE IN A POLICY.
23. As to the persons obtaining the insurance. Where a member of a
partnership firm applied for insurance upon partnership property, and
in the name of the firm, and the officers of the company so understood
the application, but, by mistake, issued the policy in the name of the
individual partner alone, it was held, a court of equity would reform
the policy so as to make it conform to the intention of the parties.
Keith et al. v. Globe Ins. Co. 518.
1. In trover. The owner of a carriage shipped the same by a common
carrier, the amount to be charged for the transportation being first
agreed upon, and upon the carriage reaching its destination, it was
demanded by the owner, he offering to pay the charges as agreed upon,
but the agent of the carrier refused to deliver it except upon payment
of a larger amount. After the refusal to deliver, the carriage was
destroyed by fire: Held, in such case, where the owner brought trover
against the carrier, the plaintiff was entitled to interest on the value of
the property from the time of the demand and refusal. Northern
Trans. Co. of Ohio v. Sellick, 250.
2. On setting aside a fraudulent sale. Where a fraudulent sale has
been had under a deed of trust, and the sale set aside, interest may be
INTEREST. WHEN RECOVERABLE. Continued.
properly allowed on a judgment for the debt, which accrued between the
time of setting aside the fraudulent sale and a subsequent sale under
the deed. Hopkins v. Granger et al. 505.
Right of private persons to enter the same. See PUBLIC OFFICES, 1.
OF AN INDIVIDUAL WITH A BODY OF PERSONS.
1. Where an association of persons employ an individual to render a
service for them, a third person, not a member of the association, may
become jointly bound with them. Boyd v. Merrill, 151.
1. In inferior courts. No particular form is required in the proceed-
ings of an inferior court, to render its order a judgment. It is sufficient
if it be final, and the party may be injured. Johnson v. Gillett, 358.
2. In a county court, on adjudicating a claim against an estate. So,
where the order of a county court, in respect to a claim presented
against an estate, was, "after having taken the matter under advise-
ment, the court this day, after due deliberation, rejects the claim," this
was held to be a sufficiently formal judgment from which an appeal or
certiorari would lie. Ibid. 358.
WHERE A FEME SOLE PLAINTIFF MARRIES PENDING SUIT.
3. Judgment may be rendered in her favor by her original name,
unless a change of name be brought, in some way, to the notice of the
court. Wilson et al. v. McKenna, 43.
VACATING JUDGMENT AFTER THE TERM.
4. Power of the court. The rule is, that the circuit court has no
power to set aside a judgment at a term of the court subsequent to
that at which the judgment was rendered. Windett v. Hamilton, 180.
5. Exception to this rule. But, where a final judgment is entered
upon a default, a motion is made at the same term to vacate the
judgment, and set aside the default, and such motion is continued
to a subsequent term, the court thereby retains its control over the
judgment, and the motion may be allowed at such subsequent term.
Ibid. 180.
6. This case differs in this respect from the cases of Cox v. Brackett,
41 Ill. 222, and Messervey v. Beckwith, ib. 452. In those cases final judg-
ment had been entered, and no motion to vacate and set aside was made
at the term. Ibid. 180.
OBTAINING JURISDICTION OF THE PERSON BY FRAUD.
1. Illegal arrest-abuse of process. No court will take jurisdiction
of a party, where it is obtained by fraud; nor is a defendant amenable
to process unless he is in, or comes voluntarily within, the territorial
jurisdiction of the court. Even a valid and lawful act can not be accom-
plished by such unlawful means as enticing a party, by fraud, to come
within the jurisdiction of the court so as to subject him to its process.
Wanzer et al. v. Bright, 35.
2. And where a party has been fraudulently induced to come within
the jurisdiction of a court so as to render him or his property amenable
to its process, he may have his action therefor. Ibid. 35.
3. So where a person residing in another State was induced to come
into this State by certain creditors residing here, by the latter falsely
representing to him, through a telegraphic dispatch and a letter, under
another name, that the person whose name was so used desired to see
him in Chicago, on a certain day, upon business not connected with the
real object in view, which was to allure the party into this State for the
purpose of arresting him under civil process, to compel the payment or
securing of his debts, and when the party came within the jurisdiction
of the courts of this State, in compliance with such request, he was
arrested at the instance of the creditors, and imprisoned, it was held,
that the creditors guilty of such fraudulent conduct and abuse of pro-
cess, not only could not make them availing for the purpose intended,
but were liable to an action at the suit of the party injured for the ille-
gal arrest and imprisonment. Ibid. 35.
4. Nor would the fact that the false correspondence, by means of
which the party was enticed within the jurisdiction of the court, was
dictated by the attorney of the creditors in whose interest the fraud
was perpetrated, at all exonerate those creditors from their liability to
respond in damages, when they were previously consulted about it, and
sanctioned the act, or at least afterwards approved of it, and sought to
profit by it. Ibid. 35
ACTION OF ACCOUNT-JUSTICES OF THE PEACE.
5. A justice of the peace has no jurisdiction in an action of account.
Crow v. Mark, 332.
In an action of account. See JURISDICTION, 5.
DELAY IN PRESENTING CLAIMS AGAINST AN ESTATE.
Should be considered. See ADMINISTRATION OF ESTATES, 2.
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