gation to furnish such certificate unless required to do so, and notice
to him to comply with the conditions of the policy is not notice to
furnish the certificate. (Moyer v. Sun Ins. Office, 690.)
18. INSURANCE CONDITIONS IN POLICY-WAIVER.-If the
insured, in good faith and within the stipulated time, does what he
plainly intends as a full compliance with the requirements of the
policy, good faith equally requires that the insurer shall promptly
notify him of his objections, so as to give him the opportunity to ob-
viate them, and mere silence, or failure to notify him, as to what
further information is desired, or mere notice that "strict compliance
with the requirements of the policy will be required," misleading the
insured, to his disadvantage, constitutes a waiver by estoppel to ob-
ject to the proofs furnished or to require other or further proofs.
(Moyer v. Sun Ins. Office, 690.)
19. INSURANCE, FIRE-MONEY REPRESENTS HOUSE DE-
STROYED.-The money due upon an insurance policy upon a house
represents to the owner of the property the house lost, and the de-
struction of the house by fire is an involuntary conversion of the
house into money, as fully as if it had been sold under an execution
or deed of trust. (Chase v. Swayne, 742.)
20. INSURANCE-PROOF OF LOSS-WAIVER.—If an assured in
good faith and within the time stipulated, does what he plainly in-
tends as a compliance with the requirements of his policy in respect
to proofs of loss, the failure of the insurance company to notify him
of any objections to the proofs furnished constitutes a waiver of ob-
jections to such proofs, and of any other or further proof. (Moyer v.
Sun Ins. Office, 690.)
21. INSURANCE-A JOINT ACTION MAY BE MAINTAINED
BY A HUSBAND AND WIFE on a policy of insurance issued to
them upon a dwelling used as a homestead, though the title thereto
was vested wholly in the wife. (Webster v. Dwelling House etc. Ins.
Co., 658.)
22. A POLICY OF INSURANCE ISSUED TO A HUSBAND AND
WIFE cannot be avoided on the ground that the real property de-
scribed therein was wholly hers and the personal property wholly
his, while in the application it was represented as theirs jointly. By
the use of this word they did not necessarily affirm that they were
tenants in common, but merely that they together owned the prop-
erty, and that no other person was interested in it, it being in their
joint possession and use as husband and wife. (Webster v. Dwell-
ing House Ins. Co., 658.)
23. INSURANCE AGENT, POWERS OF.-An agent of a corpo-
ration, permitted to insure persons from loss from the insolvency of
their customers, and who is authorized, on behalf of his principal,
to solicit insurance, transmit applications, and collect premiums,
has power to make an agreement that where customers are not rated
in Dun's Commercial Agencies, as required in the original contract
of insurance, the insured may use, as to them, the rating of Brad-
street's Mercantile Agencies. (Shakman v. United States etc. Co.,
920.)
24. INSURANCE-GENERAL AGENTS, WHO ARE.-One con-
stituted the agent of an insurance corporation to accept risks, to
agree upon and settle the terms of insurance, and to carry them
into effect by issuing and renewing policies, must be regarded as a
general agent. (Goode v. Georgia etc. Ins. Co., 817.)
25. INSURANCE-CLERKS OF AGENTS.-An insurer is respon-
sible for the acts of, and is affected by notice given to, the clerks
and employés of his general agents, who are known to assist such
general agents in the discharge of their duties. (Goode v. Georgia
etc. Ins. Co., 817.)
26. INSURANCE-CLERKS OF AGENTS.-General agents of insurance corporations authorized to contract for risks, receive, and collect premiums, and deliver policies may confer upon a clerk or other subordinate authority to exercise the same powers. (Goode v. Georgia etc. Ins. Co., 817.)
27. INSURANCE, WAIVER OF CONDITIONS.-If an insurer pleads as a defense that the plaintiff, in making out the application for insurance, falsely stated that there was no lien and no other insurance on the property insured, the plaintiff should be permitted to prove that a clerk of a general agent of the insurer solicited the insurance, and was truly informed respecting the lien and the other insurance, and that it was by his advice that the applicant did not disclose these facts. (Goode v. Georgia etc. Ins. Co., 817.)
28. INSURANCE AGAINST LOSS BY INSOLVENCY, CONSTRUCTION OF CONTRACT.—If a policy of insurance against loss by insolvency of customers provides that, in calculating losses, no credit shall be included therein exceeding a credit of thirty per cent of the lowest capital rating of the customers in specified books, though a credit is given exceeding such rating, the assured does not lose the right of indemnity altogether, but his indemnity is restricted to thirty per cent of such rating. (Shakman v. United States etc. Co., 920.)
29. INSURANCE AGAINST LOSS BY INSOLVENCY OF CUSTOMERS, CONSTRUCTION OF.-If a policy, as written, purports to indemnify a party from all loss within one year from July 1, 1889, from the insolvency of his customers, provided they are rated in Dun's Mercantile Agencies, but on objection being made that the assured should be permitted to use Bradstreet's rating as well as Dun's, at the time of the delivery of the policy, November 8, 1889, the agent of the assured wrote thereon a memorandum extending the liability to persons rated in Bradstreet's Agency, the liability of the insurer is not limited to the business transacted after the latter date, but extends, as to both classes of customers, to all business done with them after the commencement of the term of insurance named in the policy. (Shakman v. United States etc. Co., 920.)
30. INSURANCE, LIFE-EFFECT OF FALSE ANSWERS AS TO SPECIFIC AILMENTS.-A policy of insurance is avoided by false answers of the insured as to his freedom from specific diseases, without reference to their materiality as to the risk, as answers respecting specific ailments are warranties, whether material to the risk or not. (Mutual etc. Ins. Co. v. Simpson, 757.)
31. INSURANCE, LIFE-"DISEASE"-WARRANTY AS TO SPECIFIC AILMENT.-The word "disease" may include, and is often used to designate, ailments more or less trivial; and an insurance company may, if it elects, inquire about any ailment, and take a warranty concerning it, lest it may affect the risk, although it cannot be known that it will. (Mutual etc. Ins. Co. v. Simpson, 757.)
32. INSURANCE, LIFE-FALSE ANSWER AS TO HEADACHE -INSTRUCTIONS-REVERSIBLE ERROR.-If an applicant for insurance answers that he has never been subject to "headachesevere, protracted, or frequent," and there is testimony, under proper pleadings, showing the answer to be false, it is reversible error to instruct the jury that "temporary illness of the assured in the course of every-day life, brought on by excessive exercise or overwork, is not embraced in said application," and that the answers of the assured have reference "to such diseases or ailments as indicate a vice in the constitution, or are so serious as to have some bearing on the general health," and in the continuance of life. (Mutual etc. Ins. Co. v. Simpson, 757.)
33. INSURANCE-ACCIDENT.-AN INJURY INTENTIONALLY
INFLICTED on an assured by another person is an accidental injury
within the meaning of a policy of insurance against injuries from
external violence and accidental means, though the policy provides
that the insured shall not be liable for intentional injuries. The
word "intentional," as here used, refers to the acts of the insured
alone. (Button v. American etc. Acc. Assn., 900.)
See Attachment, 2; Homestead, 1.
1. INTEREST IS NOT THE MERE INCIDENT of a debt, at-
taching only to contracts, express or implied, for the payment of
money, but is compensation for the use of, or for the detention of,
money. (Sullivan v. McMillan, 239.)
2. INTEREST.-IF A SPECIAL DEPOSIT or pledge of moneys
is made, the pledgee is not liable for interest until he refuses, after
demand, to make restitution of the amount of the pledge. (Ander-
son v. Pacific Bank, 228.)
3. DAMAGES-INTEREST ON.-Whenever it is ascertained that
at a particular time money ought to have been paid, whether in sat-
isfaction of a debt, or as compensation for a breach of duty, or for
failure to keep a contract interest attaches as an incident. (Sullivan
v. McMillan, 229.)
4. DAMAGES-INTEREST ON.-As soon as it is the legal duty
of one to pay a claim, he is liable for interest, and as he must have
been in default before an action could be maintained against him, and
as his default consisted in withholding money due, he is liable for
interest on the claim in suit from the date of the writ thereon. (Sul-
livan v. McMillan, 239.)
5. DAMAGES-INTEREST ON UNLIQUIDATED DEMANDS.—
In the allowance of interest the distinction formerly existing be-
tween liquidated and unliquidated demands is practically obliterated,
and whenever a verdict liquidates a claim and fixes it as of a prior
date, interest should be allowed on the claim from that date. (Sulli-
van v. McMillan, 239.)
INVENTIONS.
See Railroads, 29, 30.
INVESTMENTS.
See Trusts, 7, 8.
JOINT LIABILITY.
See Negligence, 2, 8.
1. JUDGMENT WITHOUT JURISDICTION IS VOID.-Hence a
judgment directing foreclosure proceedings, and a sale, to enforce an
assessment for building a sidewalk in a city is void, where the court
is without jurisdiction of the amount of the demand, and there is no
lien upon the lot sold. A sale thereunder does not confer any title
upon the purchaser. (Higgins v. Bordages, 766.)
2. JURISDICTION OF ABSENTEES.-Process cannot go beyond
the state, and compel a person in another state to return to the
state where an action is pending, and to there make a defense,
though he is a native of, and has a domicile in, such state. Hence
a personal judgment against one who was not in the state when the
action was commenced nor afterward, and who did not appear vol-
untarily, nor otherwise, is void. (De La Montanya v. De La Mon-
tanya, 165.)
3. JUDGMENT, FRAUD IN PROCURING.-It cannot be suc-
cessfully contended that there was fraud in the recovery of a judg-
ment because the plaintiff, as a witness in his own behalf, in testi-
fying to the facts constituting his alleged cause of action, made no
mention of a chattel mortgage and the seizure of the property in
question under it for the payment of the debt secured thereby, under
which mortgage it is claimed by the defendants that they rightfully
took the property, they not being present or represented at the trial.
(Nye v. Sochor, 896.)
4. RES JUDICATA.-Under plea of the general issue, a former
recovery may be shown in evidence. (Little v. Barlow, 249.)
5. RES JUDICATA-EVIDENCE.-If the matter in issue in a for-
mer suit does not appear upon the record offered, under the plea of
the general issue, as evidence of such former adjudication, it may be
shown by extrinsic evidence. (Little v. Barlow, 249.)
6. RES JUDICATA-EVIDENCE.-To sustain the contention of
res judicata, the complete record in the former suit, including the
judgment therein, and not detached portions thereof, must be offered
in evidence. (Little v. Barlow, 249.)
7. RES JUDICATA-CONCLUSIVENESS.-A former recovery,
when pleaded in bar and proved, is conclusive upon the parties.
(Little v. Barlow, 249.)
8. RES JUDICATA-EVIDENCE OF UNDER GENERAL IS-
SUE-CONCLUSIVENESS.-If evidence offered under a plea of the
general issue to support a contention of res judicata shows that the
same subject matter has already been litigated and adjudicated be-
tween the parties by the final judgment of a court of competent jur-
isdiction, it is as conclusive a bar to any further recovery as though
it had been urged by special plea in bar. (Little v. Barlow, 249.)
9. JUDGMENT-WHEN NOT RES JUDICATA.-A judgment of
the appellate court, reversing the judgment of the superior court, and
remanding the cause to that court for further proceedings is not final,
and does not conclude the parties, in the supreme court, upon a sub-
sequent appeal, from a later judgment of the superior court. (Board
of Trade v. Nelson, 312.)
10. JUDGMENTS-LIEN
a statute
providing that the docketing of a judgment shall make it "a lien on
the real property, in the county where docketed, of every person
against whom any such judgment shall be rendered, and which he
may have at the time of the docketing thereof in the county in which
such real property is situated, or which he shall acquire at any time
thereafter, for ten years from the date of the rendition of the judg-
ment," the lien of docketed judgments attaches to after-acquired
lands in the same county at the mement that the title vests in the
judgment debtor, and the proceeds of a sale under such judgments
must be distributed pro rata among the judgment creditors without
reference to the date when their judgments were docketed. (Moore
v. Jordan, 576.)
11. JUDGMENT.-A MOTION MAY BE ENTERTAINED TO VA-
CATE A JUDGMENT, though the moving party does not come into
court, nor make an affidavit of merits, nor otherwise submit himself
to its jurisdiction, where the ground of the motion is that the Judg.
ment, or the part sought to be vacated, is void because the court did
not have jurisdiction of the person of the defendant, the process
having been constructively served on him beyond the state. (De La
Montanya v. De La Montanya, 165.)
12. JUDGMENT NUNC PRO TUNC as of the date of the submis-
sion of a cause for decision may be entered where it appears that
the defendant had ceased to be a corporation after such submission.
The forfeiture of the charter of the corporation is equivalent to the
death of a natural person, and the judgment in the one case as in the
other may be entered, nunc pro tunc, as of a day in the lifetime of
the party where it might have been entered in such lifetime but for
some delay of the court. (Shakman v. United States etc. Co., 920.)
See Appeal, 1, 2; Equity, 1-3; Fraudulent Conveyances, 4-6; Injune-
tions, 8-10; Insurance, 11.
JUDICIAL NOTICE.
See Corporations, 24; Evidence, 3.
JUDICIAL SALES.
SALES-SETTING
ASIDE-INADEQUACY OF
PRICE.-While inadequacy of price alone does not justify the set-
ting aside of a judicial sale, yet when such inadequacy is very great,
slight circumstances tending to show that interested parties were
misled, or by accident or mistake prevented from attending the sale,
or preventing it, it may be set aside. (Rogers etc. Hardware Co. v.
Cleveland Building Co., 494.)
See Appeal, 1; Habeas Corpus; Judgments, 1; Larceny, 2; Marriage
and Divorce, 2; Prohibition; Receivers, 2, 8; Statutes, 7.
LACHES.
See Partition, 4.
1. LANDLORD AND TENANT-LEASES-COVENANT FOR
QUIET ENJOYMENT.-A guardian cannot bind his ward nor the
ward's estate by a covenant for quiet enjoyment contained in a lease
of the ward's land; but a guardian executing a lease containing such
covenant binds himself individually and becomes personally liable
for its breach. (Chestnut v. Tyson, 101.)
2. LANDLORD AND TENANT-LEASES-COVENANTS FOR
QUIET ENJOYMENT-BREACH OF NOTICE.-If a tenant is
evicted under a judgment obtained by a stranger having a paramount
title, and brings an action against the landlord to recover for a
breach of a covenant for quiet enjoyment contained in his lease, it
is not necessary to the maintenance of the action that the tenant
aver and prove that he notified the landlord of the pendency of the
action under which he was evicted. (Chestnut v. Tyson, 101.)
3. LANDLORD AND TENANT-LEASE-COVENANT FOR
QUIET ENJOYMENT-BREACH OF AND RIGHT TO RECOVER
FOR.-If, in an action by a tenant to recover for the breach of a
covenant for quiet enjoyment contained in the lease, the gist of the
action is the deprivation of the possession and use of the leased
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