so much on barn, a misrepresentation as to the house will not affect the insurance on the barn, and vice versa; but where the subjects of insurance are connected, as where the barn is insured in a certain amount and the contents of the barn in different amounts named, a misrepresentation as to the barn or any of its contents will avoid the whole in

surance.

Policy-Incumbrance-Judgment.-The policy provided that "if the property shall hereafter become mortgaged or incumbered

*

*

*

this policy shall be null and void." Held, that the allegation of the answer that a judgment was recovered and entered against the insured, and became an incumbrance on the property, constituted no defense, as this was not the kind of incumbrance contemplated, nor did it show a continuing incumbrance.

Phoenix Ins. Co. v. Pickel (Ind. S. C.), 21 Northeastern Reporter (June 28, 1889), p. 546.

Cancellation-When Complete.-When an insurance policy is returned for cancellation to the company's agent, who has authority to cancel it, the policy ceases to be in force though the agent does nothing but receive the policy, and makes no response to the request of the insured for an extra rebate.

Same-Same-Return to Insured After Loss.-After a policy has been surrendered to the agent for cancellation, its return by him to the insured after the property has been destroyed by fire does not revive it.

Crown Point Iron Co. v. Boatman's Fire and Marine Ins. Co. et al. (N. Y. S. C.), 6 New York Supplement (August 22, 1889), p. 602; 18 Insurance Law Journal (August, 1889), p. 644.

Policy-Arbitration-Estoppel.-A policy of insurance provided that either party might require an arbitration "touching any loss or damage," and that the award "shall be binding as to the amount of any such loss or damage, but shall not decide the liability of the company under the policy." Held, that an arbitration and award, merely as to the amount of the loss, at the instance of the insurer, did not forbid the subsequent denial of legal liability upon the ground that the policy was void for reasons known to the assured when the arbitration was instituted.

Same-Other Insurance-Forfeiture. The policy provided that it should be void in case of other insurance "without notice and consent of this company." It also authorized the company to cancel the policy at any time, at its option, by giving notice and returning a ratable proportion of the premium. Held, that additional insurance, unless consented to, or unless a waiver was shown, ipso facto avoided the contract, and the fact that the company had not, after notice of such insurance, canceled the policy, did not justify the legal conclusion that it has elected to allow it to continue in force.

Johnson v. American Fire Ins. Co. (Minn. S. C.), 43 Northwestern Reporter (August 24, 1889), p. 59.

Policy-Fraud and False Swearing-Warranty.—In an action on a policy providing that " any fraud, or attempt at fraud, or any false swearing on the part of the assured, shall cause a forfeiture of all claims under this policy," if the insured was guilty of willful fraud or false swearing the warranty was broken, and he could not recover.

Same-Same-Instruction.—It was necessary to show that the fraud or attempt at fraud was willful, and not the result of inadvertence or mistake but it was error to charge that before the plaintiff's right to recover was forfeited it must appear not only that his own testimony was false, but also that the testimony of "other witnesses produced by him, was false and corrupt."

Same-Forfeiture-Construction.-An insurance policy requiring the insured to produce account books and vouchers in case of fire, is not avoided by failure or refusal to produce them, unless the policy provides in express terms for such forfeiture but the failure or refusal may be proven, and is a proper subject for comment before the jury as to the extent of the loss.

Measure of Damage. The extent of actual loss or injury to the property is the measure of damages recoverable under the policy.

Excessive Valuation-Witness.-It was error to exclude testimony as to the excessive valuation placed on the goods, because the testimony was that of a witness in the employ of the defendant's agent, as that fact, if it could affect the witness at all, could only do so as to his credibility. Evidence-Value-Opinion.-The opinion of a witness as to whether the plaintiff's demand was based on a fair valuation, was properly rejected.

Lion Fire Ins. Co. v. Starr (Tex. S. C.), 12 Southwestern Reporter (Sept. 16, 1889), p. 45.

FRATERNAL BENEFIT ORDERS.

a

Proof of Death-Estoppel by Admission. In an action on policy of life insurance excepting from the risks assumed death of assured "by his own hand or act, voluntary or involuntary, sane or insane," it appeared that the proofs of death signed by plaintiff contained this question: "Was the death caused by his own hand or act?" The answer was: "See statement of coroner's physician, Dr. J." That statement gave "the immediate cause of death as "shock from penetrating shot wound of head-mental aberration, superinduced by chronic headache," and set out that he (Dr. J.) could not say further than that whether the assured came to his death "by his own hand " or not. After the testimony was all in, and there was evidence that the statement of Dr. J. was based on heresay, the company asked an instruction to the effect that plaintiff was estopped by the proofs of death to contend for any other cause of death than suicide, and that the burden was on the plaintiff to show that death did not result from suicide. Held, properly refused, the statement in the proofs not working an estoppel, the company not having been prejudiced thereby, and the whole charge upon the subject having instructed the jury to consider the proofs, and upon all the evidence to say what the exact truth was.

Evidence-Conversation-Relevancy-Cross-Examination.-Defendant introduced its secretary, and he was allowed to state his version of a conversation between the attorney for plaintiff and himself. He was asked on cross-examination if he had not said in that conversation that "if it depended upon him, the loss would be paid without delay." Held, that the question, relating as it did to the conversation, part of which had gone in, was relevant; plaintiff being entitled to all that had transpired.

Finality of Verdict - Verdict Contrary to Evidence New Trial. The fact that the court would, if the cause had been tried without a jury, have reached a different conclusion, is not sufficient ground by itself for setting aside a verdict as contrary to the evidence, and granting a new trial.

Sargent v. Home Ben. Ass'n (N. Y. C. C.), 35 Federal Reporter (October 2, 1888), p. 711.

By-Laws Public Policy.—The by-laws of a railroad relief association requiring its members to release the railroad company from any

claim for damages before applying to the association for relief, is not against public policy, as it simply puts a claimant to his election whether he will look to the railroad company, or the relief association, for damages.

Estoppel-Privity of Parties.—A person is not estopped from claim ing compensation of the railroad company for an injury resulting from a collision by having been previously compensated by the relief association for the injury, which he then untruthfully alleged was caused by malaria, jaundice, constipation, etc., as the railroad company and the association are separate corporations, and, while the former guaranty all contracts of the latter, yet the association funds were sufficient to meet all liabilities likely to arise.

Negligence after Injury-Aggravation of Injury - Apportionment of Damages. When plaintiff's injuries are wholly caused by defendant's negligence, but are aggravated by his own subsequent and independent acts, and the jury apportion the damages, he is entitled to recover to the extent of the damages sustained without his fault, but not for that portion caused by his subsequent acts.

Owens v. B. & O. R. R. (U. S. C. C.), 35 Federal Reporter (October 2, 1888), p. 715.

Policy-Death in Violation of Law-Suicide to Prevent Arrest.— A policy of insurance provided "if the assured shall die in consequence of the violation of any criminal law of any country, state or territory in which the assured may be, this certificate shall be null and void." Held, that suicide committed by an alleged fugitive from justice, to avoid arrest and trial for a crime committed by the assured, is not to be considered as the proximate result of the alleged crime, and that his death by suicide is not, within the proper meaning of the policy, to be considered as the violation of law therein referred to (with note).

Same-Suicide.-Suicide is no defense to an action on a policy issued for the benefit of a third person, where there is no stipulation to that effect in the policy.

Same-Measure of Damages. By their contract the association undertake to pay 66 an amount equal to $1.50 for each certificate in force at the time such amount shall become due, but not to exceed $4,000." and also a ratable proportion out of the assessment fund. Held, that the defendant association was liable absolutely to pay plaintiff a sum equal to $1.50 for each certificate in force when the insurance money became due, and a ratable proportion with other policies out of any money in the assessment fund applicable to such claims.

Kerr v. Minn. Mutual Benefit Ass'n (Minn. S. C.), 39 Northwestern Reporter (October 6, 1888), p. 312.

Change of Beneficiaries.-A benefit certificate of a benevolent association was by its constitution payable on the death of a member to his family, or as he might direct. W. made his certificate payable to

F. This certificate he surrendered and took out a second, payable to three persons. This was also cancelled and a third was taken, with other beneficiaries named in it. Held, that the beneficiaries in the first and second certificates had only contingent interests, which W. defeated by the appointment in the third certificate. (With note.)

Beneficiaries—Right of Appointment.-The constitution provided that certificates issued to members should be payable only to members of their families, or persons dependent on them. W. made a portion of his certificate payable to L., neither a member of his family nor dependent on him, the association not knowing this latter fact. Held, that the association alone could question the validity of the assignment to L., and that they waived it by payment into court for distribution.

Knights of Honor v. Watson et al. (N. H. S. C.), 15 Atlantic Reporter (September 19, 26, 1886), p. 125.

Forfeiture-Waiver.-The insured was in default in the payment of assessments due in May, 1886. In August, 1886, the defendant made a demand for payment of those dues, and of an assessment on the death of a member, and he at once remitted the amount. Held, that the defendent had waived the forfeiture of the certificate by receiving the semi-annual dues and the assessment after the 30 days' default, and by otherwise showing that they had no intention, up to the deceased's death of taking advantage of the default.

Horton v. Provincial Provident Institution (Ont. H. C. J.), Canadian Law Times (October, 1888), p. 344.

Insolvency--Distribution of Safety Fund-Death Claims--Attachment.--The certificates provided for payment of death benefits by assessments on certificate holders, and for payment to a "safety fund," which was to inure to the benefit of members of five years' standing by having the income of it, after five years, or after it had amounted to $100,000, applied to the payment of future dues. If, after that time, the association should fail to pay the indemnity provided in the certificates, the fund was to be divided among all the holders of certificates then in force, but the fund should "be in no way chargeable or liable for any use or purpose except as above mentioned." The association failed before the five years, and while the fund was only $19,000. Held, that the fund should be divided equally among all the holders of certificates which were in force at the time the bill to dissolve the association was filed, and could not be taken by attachment or otherwise, by the holders of death claims, notwithstanding general expressions on the back of the certificates asserting that the association provided substantial protection for the families and dependents of deceased members by means. of the safety fund.

Same-Same-Same.-The legal representatives of holders of certificates who died without having incurred any forfeiture,and who had not