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hot. But the facts do show this, and, further, that there had been no rain for more than a month past, and that the peat on the lands of these parties was unusually dry and inflammable.

The facts found further show that there were many old decayed roots and limbs of trees extending from the appellant's land to the border of the land of the appellees; that fire burning in lands of the nature of these ordinarily burns and smolders in the peat, eating into the same, burning under the surface and running along the sticks and roots and coming out in new places for an indefinite length of time, and till the same is put out by heavy rains or subdued by active means, and is liable and likely to, and often does, in moderate wind, fly through the air and ignite combustible 409 matter to a distance of several feet; that the manner in which fires burn and operate in such lands was known to men of ordinary experience before and during the time of the fire; that there was no independent or unusual cause intervening to produce the fire which injured the appellees' property other than the fire set and encouraged by the appellant.

The appellant admits that if "the original setting out of the fire was such that its escape, under ordinary conditions and circumstances, would be a natural and ordinary sequence," this would be such negligence as to charge him with liability. This, we think, cannot be controverted. We think it is shown by the special verdict that the condition of the atmosphere and of the material to be burned was such, at the time chosen to kindle the fire, that sparks would almost inevitably fly into the highly combustible material adjacent to the appellant's soil and ignite it, and that men of ordinary prudence would know and recognize this principle also appears amply from the facts found.

This is not the case of the burning of ordinary dead timber or fallow. The care and prudence to be exercised depend, in a great measure, upon the quality and character of the material surrounding the fire, as well as the condition of the atmosphere. Thus it was said in the case of Webb v. Rome etc. R. R. Co., 49 N. Y. 420, 10 Am. Rep. 389: "But if, in a time of extreme drouth and high wind, there be laid or suffered to gather a train of readily combustible matter up to the bounds of another's property, it is not to be denied that it is an act of negligence to drop fire at the hither end of that train; nor but that it is an ordinary, a usual, a necessary result, reasonably to be expected, that the fire will run from particle to particle through it, and catch in whatever will burn which is adjacent at the thither end."

And so we think it quite analogous to reason that where the fire is immediately surrounded by highly combustible and in

flammable material up to the very border of the adjacent 410 proprietor's soil, and from there on indefinitely, it cannot be denied that it is an act of negligence to kindle such fire; and that it is a sequence reasonably to be expected that the slightest breeze will carry sufficient sparks of fire into such combustible matter and ignite it, consuming whatever property will burn which lies in its pathway: See Louisville etc. Ry. Co. v. Nitsche, 126 Ind. 229; 22 Am. St. Rep. 582.

We therefore conclude that the appellant was guilty of negligence in setting the fire, and that the court below correctly adjudged so.

If this be true, then it can make no difference whether the appellant used ordinary precaution to keep the fire from spreading or not. The digging of the ditch one spade deep, or a hundred feet deep, could not have prevented the flying of the sparks, which the jury found were the immediate cause of the communication of the fire from appellant's land to the inflammatory material on the land of the appellees. Nor could the careful watching of the appellant and his hired hand avail to arrest the flight of the disastrous sparks. There was absolutely no safeguard after the setting of the fire, excepting its extinction.

We hold, then, that the facts found by the jury make a prima facie case of negligence against the appellant, and that the court committed no error in rendering judgment in favor of the ap pellees.

The judgment is affirmed, with costs.

Crumpacker, J., having been of counsel below, took no part in the decision of the questions involved in this case.

NEGLIGENCE-SETTING OUT FIRES.-The general rule is well settled that when a private owner of property sets out fire upon his own premises for a lawful purpose, or a fire accidentally starts thereon, he is not liable for the damage caused by its communication to the property of another, unless it started through his negligence or he failed to use ordinary care and skill in controlling or extinguishing it: Extended note to McNally v. Colwell, 30 Am. St. Rep. 501. See, also, the extended note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 823. NEGLIGENCE-WHEN A QUESTION OF LAW.-If the evidence in a cause is plain and positive, admitting of no doubt or controversy, the question of negligence is for the court as a question of law: Harris v. Cameron, 81 Wis. 239; 29 Am. St. Rep. 891, and note. Negligence is never a question of law purely, unless the facts are wholly undisputed and admit of no conflicting inferences: Isham v. Post, 141 N. Y. 100; 38 Am. St. Rep. 766.

DOHERTY V. RAMSEY.

[1 INDIANA APPEALS, 530.]

EXEMPTIONS.-An assignor in an assignment for the benefit of creditors, who points out to the assignee certain property which he desires to have set aside to him as exempt, and which the assignee promises to so set aside at the time of the appraisement, may, if he is prevented by sickness from attending such appraisement, still claim his right to the exemption, and if the whole property is sold by the assignee, the assignor may recover the amount of his exemption out of the assets of the property.

EXEMPTIONS.-If an assignor in an assignment for the benefit of creditors substantially pursues the method prescribed by statute in asserting his right to his exemption, and the assignee refuses to set off the exempt property to him, but converts it into the trust fund, the assignor is equitably entitled to the proceeds of the property which should have been set apart to him, and it is the duty of the court, on proper application, to order the assignee to turn such proceeds over to the assignor.

EXEMPTIONS.-If an assignor, prior to making an assignment for the benefit of creditors, transfers a large amount of money in fraud of them, but subsequently executes a voluntary written order surrendering all of such money to the assignee, he still has a right to claim his exemption out of the property assigned, and cannot be compelled to take such exemption out of the money fraudulently transferred.

FRAUDULENT TRANSFERS. - By the recording of an assignment for the benefit of creditors, the legal title to all of the property owned by the assignor at that time vests in the assignee, including any and all property that may have been sold, conveyed, or assigned by the assignor with the intent to defraud his creditors. EXEMPTION WAIVER. -The exemption to which an assignor in an assignment for the benefit of creditors is entitled, cannot be waived by him by contract made prior to the execution of the assignment.

EXEMPTIONS-FRAUD OF ASSIGNOR.-If the right to an exemption is conferred by express statutory terms, and does not depend upon an enlargement of statutory provisions by equitable construction, the previous fraud of a debtor in transferring, or withholding property subject to execution does not defeat his right to claim an exemption out of property assigned for the benefit of his creditors.

G. D. Hurley and M. E. Clodfelter, for the appellant.

T. H. Davidson, for the appellee.

531 CRUMPACKER, J. On the third day of September, 1889, Marshal D. Doherty executed a deed of assignment of all his property, for the benefit of all his creditors, to Alexander F. Ramsey, as assignee, who assumed the duties of such trust. The deed of assignment was duly recorded, and the assignee proceeded to inventory and appraise the property, and thereafter sold the same in the execution of the trust.

The Montgomery circuit court had jurisdiction of the proceedings, and at the November term, 1879, of said court, Doherty filed a petition against the assignee, asking an order directing him to pay the petitioner, out of the assets of the estate, the sum of six hundred dollars, claimed by him under the exemption laws of the state.

532 The petition is in the following form:

"Your petitioner, Marshal D. Doherty, represents and show to the court that heretofore, to wit, on the third day of September, A. D. 1889, he made an assignment of all his property, both real and personal, for the benefit of all his creditors, to one Alexander F. Ramsey, who accepted said trust, and is now his lawful assignee; that within thirty days after entering upon the duties of his trust, the assignee made, under oath, a full and complete inventory of all the property, real and personal, of the rights, credits, interests, profits, and collaterals which came to his hands, or of which he may have obtained knowledge as belonging to said assignor, and caused the same in said inventory to be appraised by two reputable householders of the neighborhood, who, before proceeding to discharge their duties, took an oath to honestly appraise the property mentioned in the inventory filed by the said trustee in the recorder's office of Montgomery county, Indiana; that your petitioner is a resident householder of the state of Indiana, residing in the city of Crawfordsville, Indiana, and, as such, he is entitled to the benefits of the exemption laws of the state of Indiana, under section 703 of the Revised Statutes of 1881, to the amount of six hundred dollars, and that all of his indebtedness accrued since May 31, 1879, on contracts only; that at the time of the said inventory and appraisement, the assignor was sick and unable to get out of his house, but had, a few days previous thereto, seen the assignee, and requested and demanded of him that six hundred dollars in value of said property be appraised and set off to him as exempt from sale, for the payment of his debts; that said assignee, Ramsey, then and there agreed that buggies, carriages, and harness sufficient to make six hundred would be set off to him at their appraised value by the appraisers; that said assignor selected said buggies, carriages, and harness as the property he desired set off to him as exempt from sale, and expected said buggies, carriages, and harness would be set apart tc 533 him as exempt from sale, for the payment of his debts, as such resident householder, by said appraisers, and he intended to be present at said appraisement, but, by his sickness, he was unable to be present at the time said inventory and appraisement were made, and the said assignee, Ramsey, failed and neglected

to have the appraisers set apart said property as exempt from sale, as he had theretofore demanded, and as said assignee had promised and agreed to do, and, without his, Doherty's, fault or neglect, said assignee neglected and refused to set said property off to him; that said assignee has now on hand a sufficient amount of money to pay him said sum of six hundred dollars.

"He therefore asks the court to make him an allowance of six hundred dollars in and out of said estate, that he is justly and legally entitled to under the law, and that said assignee be authorized by the court to pay said assignor said sum of six hundred dollars."

The assignee appeared to the petition and filed his answer thereto as follows:

"Alexander F. Ramsey, assignee herein, for answer to the petition of his assignor, Marshal D. Doherty, filed November 4, 1889, and numbered 2151, praying for an allowance on account of statutory exemption, says: That on the day before the execution of the indenture of assignment herein, the said Marshal D. Doherty transferred to the possession of one Oscar Street of Kansas City, Missouri, the sum of ten thousand two hundred dollars in money then belonging to him, the said Marshal D. Doherty; that said. transfer was made without any consideration and for the use of said Doherty, and for the purpose of withholding said sum from the operation of his assignment; that after, the said Marshal D. Doherty executed to this defendant, as his assignee, an order on said Street for the payment of said sum of money, but that said Street has not paid the same and refuses to pay the same to defendant, and defendant says that he is now prosecuting a suit to recover said moneys. Wherefore 534 the defendant prays the judgment of the court in the premises."

A demurrer was filed to the answer, which was overruled and exceptions saved, and the petitioner declined to reply but elected to stand by his demurrer. Thereupon it was adjudged that he take nothing by his petition, and that he pay the costs thereof.

The overruling of the demurrer to the answer is the only error assigned in this court, but the consideration of this assignment of error involves the sufficiency of the petition as well as the answer. The law requires an assignee to make a full and complete inventory of all the property owned by the assignor within thirty days after he enters upon the execution of the trust, and within twenty days after the preparation and filing of such inventory he shall cause all of the property mentioned therein to be appraised by two competent appraisers.

Section 2670 of the Revised Statutes of 1881 provides that if

ST. REP., VOL. L.-15

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