National Filtering Oil Co. v. Citizens' Ins. Co. (N. Y. C. A.), 13 North eastern Reporter (Nov. 4, 1887), p. 337; 36 Albany Law Journal (Nov. 19, 1887), p. 413.

Consummation of Contract.-A contract of insurance is deemed to have been made at the date of the policy, notwithstanding it provides for an insurance of the property from a time anterior to that date, when it appears from an express provision of the application upon which the policy was issued that no liability should attach until the application was approved by the insurers, and that such approval was made on the day the policy was dated.

Application-Change in Property Between Date of and Approval-Policy.-An application for insurance stated that no proceedings had been taken to foreclose a mortgage. Such proceedings were instituted after the application was made, and before its approval by the insurers and the issuing of the policy. The policy provided that "the commencement of foreclosure or other proceedings upon any mortgage lien * ** against any of this property named in this policy shall immediately render this policy void." Held, that the statement in the application being true at the time when made, the insurers assumed the risk of a change in the condition of the property in this respect, between that time and the time of its approval, and the foreclosure proceedings were not commenced within the meaning of the condition so as to avoid the policy.

Appeal-Notice of--Presumption.-The statement in appellant's abstract, "the plaintiffs appealed from the judgment," in the absence of any showing to the contrary, is sufficient to warrant the assumption that notice of the appeal was duly filed, and everything done which is necessary to take an appeal.

Day et al. v. Hawkeye Ins. Co. (Iowa S. C.), 34 Northwestern Reporter (Nov. 5, 1887), p. 435.

Practice-General Denial--Proof of Members of Partnership. -Under a simple denial of an allegation of partnership a defendant can not claim that there were other parties interested in the firm who should be parties plaintiff.

Waiver of Defects in Proofs of Loss.-Though proofs of loss may be fatally defective in that they do not accord with the terms of the policy, yet if the proofs are retained by the company, with no notice oi their insufficiency as to particular omissions and defects, but only a notice that the company has not waived, and does not, and will not, waive anything, and expressly reserves any and all objections to any and all claims that have been or may be made by the insured against the company, there was an implied waiver of the conditions.

Karelson et al. v. Sun Fire Office (N. Y. S. C.), 27 New York Weekly Digest (Nov. 4, 1887), p. 148.

Increase of Risk--Forfeiture.--A policy provided that it should be void if the risk was increased, and the working of carpenters, etc., in building, altering or repairing without consent should cause a forfeiture. The premises were occupied as a grocery when insured; they were afterward leased to be used in drying fruit, which necessitated alterations, putting in a furnace, wooden shafts, etc., which was done without consent of the insurer. Held, that there was a violation of the terms of the policy, and that the insurer was not liable.

Mack v. Rochester German Ins. Co. (N. Y. C. A.), 27 New York Weekly Digest (Nov. 4, 1887), p. 166; 36 Albany Law Journal (Nov. 19, 1887), p. 414; 9 Central Reporter (Nov. 24, 1887), p. 277.

Assignment for Benefit of Creditors--Defects in Acknowledgment of Acceptance by Assignee.-Where plaintiff got title to the policy as assignee of the insured for the benefit of creditors, and it appeared that the acknowledgment to the consent of the assignee to become such was defective, held, that this would not prevent a recovery against defendant.

Policy-Filling of Kerosene Lamps.--Violation of a condition in a policy requiring kerosene lamps to be filled in the day time does not make the policy void, but relieves the company from liability caused thereby.

Waiver of Defects in Proofs of Loss.--Where proofs of loss are retained forty-five days before objection made, any objection thereto will be deemed to have been waived.

Jones v. Howard Ins. Co. (N. Y. S. C.), 27 New York Weekly Digest (Nov. 4, 1887), p. 167.

Taxation --Assets-Reserve Fund.-The contingent liability of an insurance company to pay losses, and to refund unearned premiums, is not an indebtedness which may be deducted from its assets when listing its property for taxation; and in the absence of a provision of its charter, or of a statute to the contrary, a fund required by statute to be reserved free from dividends, consisting of certain securities, interest, and the amount received from premiums upon unexpired policies, declared to be unearned premiums, is liable to municipal taxation.

Same Statutory Percentage of Capital Stock-Exemption.The legislative requirement that an insurance company pay into the treasury a certain percentage upon its capital stock does not exempt it from further taxation for municipal purposes, in the absence of such an exemption in its charter, or in any statute.

Kenton Ins. Co. v. City of Covington (Ky. C. A.), 5 Southwestern Reporter (Nov. 14, 1887), p. 461.

Policy-Construction-" Contained in."-Following the case of Haus v. Fire Assoc'n of Philadelphia, 34 Pittsburgh Legal Journal, 207, the

fact that the insured animal was not in the barn at the time of death does not impair the right of recovery.

Delay in Making Proofs of Loss-Excuse-Jury.-Where there is a delay in making proof of loss, and the court leaves it to the jury to decide whether there was a reasonable explanation of the delay, and the jury find there was, no error was committed by the court.

Limitation of Action-Commencement of Action.-An action was commenced within twelve months next after the loss occurred, and, although the writ was not served, an alias and pluries writ were issued, so that a proper service was finally obtained. Held, such writs were the continuance of the original process, and not the inception of a fresh suit.

Notice of Loss-Proofs of Loss.-Where there is a single subject of insurance, which is entirely destroyed, and immediate notice of the loss given to the insurance company, further detailed proof of the loss is not requisite to a right of recovery.

American Central Ins. Co. v. Haus (Pa. S. C.), 18 Pittsburgh Legal Journal (Nov. 16, 1887), p. 142.

Evidence-Waiver-Jury.-Evidence held sufficient to justify a jury in finding that an agent had authority to adjust the loss and waive breaches of conditions in the policy.

Swain v. Agricultural Ins. Co. (Minn. S. C.), 34 Northwestern Reporter (Nov. 19, 1887), p. 738.

Insurance by Mortgagee in Name of Owner-Mutual Mistake in Naming Owner-Reformation of Policy.-Complainant as assignee of a mortgage on premises that had been conveyed by the mortgagor to another, and by him transferred to M., applied to an insurance agent to have the property insured to protect her mortgage interest therein. The property had been sold under an execution against the grantor of M., and purchased by R., and the validity of the sale was being litigated in a suit between the parties in interest. The agent was informed of this suit, and at his suggestion, and solely to protect the interest of complainant, the property was insured in the name of M., who was in possession, claiming as owner "loss, if any, payable to mortgagee." The suit was decided in favor of R., and, the premises having been burned, the company refused to pay, on the ground that M. was not the owner of the property when the policy was issued. Complainant filed a bill to reform the policy by inserting R.'s name therein as owner in lieu of M.'s, and to compel payment to her. Held, that she was entitled to the relief asked.

Balen v. Hanover Fire Ins. Co. (Mich. S. C.), 34 Northwestern Reporter (Nov. 19, 1887), p. 654.

*

Limitation of Action-"Six Months Next After Loss or Damage."-The policy provided, "Every suit, action or proceeding * shall be absolutely barred unless commenced within the term of six

months next after the loss or damage occurs." The premises burned Oct. 4, 1883, and this action was commenced April 18, 1884. Held, that under the condition mentioned, notwithstanding another condition deferring the bringing of any action until after the expiration of sixty days from the completion of proofs of loss, the plaintiff was precluded from recovering. Held, also, that the words "loss or damage" must be taken to relate to the time of the occurrence of the fire.

Blair v. Sovereign Fire Ins. Co. (Nova Scotia S. C.), 7 Canadian Law Times (Nov., 1887), p. 410.

Insurance by Mortgagor—Right of Mortgagee.—The right of a mortgagee to avail himself of the benefit of insurance taken by the mortgagor depends wholly upon contract, and his right to invoke the aid of a court of equity to enforce a lien upon money arising from unassigned policies effected by, and in the name of, the mortgagor, depend upon the existence of an unfulfilled executory agreement on the part of the mortgagor to that effect.

Same. Where a mortgagor, under a covenant to keep the mortgaged premises insured for the benefit of the mortgagee, effects such insurance to the acceptance of the mortgagee, and one of the companies in which the insurance is effected afterwards becomes insolvent, the mortgagee has no right to other insurance taken out by the mortgagor for his own protection, after the satisfaction of the covenant to insure.

Nordyke & Marmon Co. v. Gery et al. (Ind. S. C.), 13 Northeastern Reporter (Dec. 2, 1887), p. 683; 11 Western Reporter (Dec. 10, 1887), p. 346.

Policy-Cancellation-Notice.-A policy of insurance contained the provision that it could be terminated at the option of the company by giving notice to that effect. Notice was given by the company to its agents to cancel the policy, but the insured were not notified until after the loss. Held, that the notice mentioned meant notice to the insured, and that the policy was not canceled at the time of the loss.

Double Insurance-Pro Rata Payments-Pleading and Proof.— The company denied liability generally, and claimed that plaintiff had other insurance, and that if liable it was only pro rata. It also filed an amended answer and cross-petition, making the other insurance companies parties, and asking that they be compelled to pay plaintiff their respective shares of the loss. Held, that, in so far as the amended answer limited the plaintiff to a pro rata recovery from the defendant, it could have been proved under the former plea, and defendant had no concern in the claim, if any, which plaintiff had against the other companies.

Policy Provision for Pro Rata in Case of Other Insurance, Valid or Invalid."-A condition in a policy for pro rata payment in case of other insurance, "valid or invalid," does not apply to policies

issued at the instance of agents of the first company, and without the knowledge, consent or ratification of the insured.

Substitution of Policies-Unauthorized Act of Agent.-The general agents of the defendant company, being notified by the company to cancel its policies with the insured, substituted for such policies those of other companies without the knowledge or consent of the insured, or of the company. Held, that such acts were without the scope of their authority, and incompatible with their trust duties as agents of both parties.

London & L. Fire Ins. Co. v. Turnbull et al. (Ky. C. A.), 5 Southwestern Reporter (Nov. 28, 1887), p. 542.

Special Agent-Authority to Waive Terms of Policy.-Special agents of an insurance company to receive and forward to it applications for insurance, and to receive from it, and deliver to the parties, policies of insurance, and to receive the premiums, have no authority to vary the terms of a policy by giving the insured leave to remove some of the property without giving written notice. And the fact that a calendar was furnished them by the company for distribution, containing a statement of its financial standing, etc., with the names of such agents printed thereon as agents," adds nothing to their authority.

Putnam Tool Co. v. Fitchburgh Mut. Fire Ins. Co. (Mass. S. J. C.), 13 Northeastern Reporter (Dec. 9, 1887), p. 902; 5 New England Reporter (Dec. 20-27, 1887), p. 288.

Violating Terms of Policy-Acts not Injurious to Company.— Where the defense relied on was that the plaintiffs had insured a planingmill, which at the time of the insurance was running full time; that at the time of the fire the mill was idle, and had been running only a part of the time for some time prior to the fire on account of an undertaking of plaintiffs to close out the business and dissolve their partnership; that the defendant was not notified of the fact that the mill was not in full operation, but was running only a part of the time, as required by the policy. Held, that the acts complained of were such as would diminish rather than increase the danger of fire, and that such defense was without merit.

Allemania Ins. Co. v. White et al. (Pa. S. C.), 11 Atlantic Reporter (Nov. 30, 1887), p. 96.

Delivery of Policy-Payment of Premium to Agent.-Where the usual course of dealing between the company and agent is for the company to treat the agent as its debtor for premiums on policies delivered to him, and render statements or bills for the same periodically, payment of the premium by the insured to the agent is payment to the company, and the company is liable, although the premium was not paid by the agent to the company until after the fire.