St. Paul daily globe., 1896-02-08

would not and furnish him all necessary in
| formation of the status of the proceeding in
| time to enable him to protect himself.
! When after the giving Of such a notice, the
| insurer defended the insured in the proceed
| ing,
| Held the notice was thereby withdrawn.
Held further the evidence is not sufficient
to show that after it abandoned any further
| attempt to protect him, 1t again gave him
| such notice. Order affirmed. -Canty, J.
Thomas j. McCarvel respondent, VS. The
Phoenix Insurance Company Of Brooklyn,
| appellant
. A fire insurance policy provided that within
sixty days after a loss, the insured should
| furnish to the insurer proof of loss contain
| Ing certain matters and particulars of and
concerning the loss and the origin of the fire,
and IL required, should furnish the insurer
certain other matters and a certain official
certificate of and concerning the same; the
| insured furnished an insufficient proof of loss,
which was retained by the insurer, who (when
! the insured would have but two or three days
left In which to furnish sufficient one) OBJ
| jected to the proof SO furnished, and demand
| ed as necessary to obviate the objections, that
| the insured furnish the particulars which by
the policy he was Internationally required to
! furnish and also said matters and certificate
which he was not required to furnish unless
demanded, and which were then for the first
! time demanded
| Held by mixing up unfortunately in its
objection and demand the things which he was
| unconditienally required to furnish and those
which he was not required to furnish unless
| demanded, and by falling tc warn him that he
! had less time in which to furnish the former
the former within sixty days would result in
a forfeiture, the insurer waived the sixty
day limit and extended the time to furnish
| the former to reasonable time in which to
| comply with all the demand together.
The policy contained large number Of con-
| ditions in an action by the insured that he
had fully complied with all of these condi-
tions except one, and as to that one, that de-
| fendant had by certain act waived full COM
| pliance with it; the issue thus raised was the
| only one submitted to the jury, who found for
| plaintiff; 1t was immaterial issue for the
reason that it conclusively appeared that by
another act defendant had waived compl-
ance with this condition within the time lin
tied in the policy; there another ma
terial issue which might have been submit
ted to the jury;
Held, by falling to call the trial courts
attention to such issue, the defendant waived
it, and If there is sufficient evidence to sus-
tain the verdict, it will not be disturbed that
the charge of the court on the issue submit
ted must be viewed in the light of this waiv-
er and that the error committed by the court
in making the rights Of the parties depend on
an immateral issue was induced by the de-
fendant itself.
Held, the verdict is sustained by the evil
dence. Order affirmed. -Canty, J.
Herbert H. Hoyt, appellant, VS.. Melvin J.
Clark, respondent.
Where a judgment in proceedings to
force taxes real estate is in the form
j
favor of its regularity and validity exists as
in respect to judgments in civil actions, but
such presumption is not conclusive. 1t may
be shown by evidence dehors the record that
The court had not jurisdiction to render the
Judgment, as for example by showing that
the delinquent list not in fact published.
But the presumption in favor Of the validity
of the judgment is not overcome by the mere
fact that affidavit of publication has been
fled. Bennett V. Blatz, A MINI. 56,
plained and qualified.
Ditto marks under the word unknown in
the column in the assessment roll headed
lin whose name assessed is sufficient state
ment that the owners name is unknown.
In such case notice of the expiration Of
the time of redemption addressed TO ''un-
known is sufficient. Judgment affirmed.
Buck, ].
Fidelity and Casualty Company of New York
"a corporaticn), respondent, VS.. w. L. Law
ler ct al, defendants; M. Breslauer, appel
liant.
1. Held in this case that the counter bond
sued upon continuing one and bound
the defendants to indemnify plaintiffs against
loss by reason of its guaranty to the eeva-
tor company of the fidelity Of l.. not only
for the original time of one year but for any
renewal or extension thereof.
g The appointment of L. as receiving
agent at Kindred was a special one as to
place, but when the defendants were notified
of the change Of place of the service of L.
to Clifford, and consented thereto by their
letter expressing their willingness to remain
on the bond, they became liable thereon.
8. A promise of to indemnify C against
loss by becoming responsible for DIS faith
full performance of his duty to e is not within
the statute of frauds.
The case of Fidelity and Casualty Company
VS.. Eichoff 65 N. w. R. 351 followed to the
effect that the complaint alleges a default In
the condition of the bond. Order affirmed.
Buck, j.
Edward Vanish, as assignee of st. Paul EIec-
trio Construction Company, respondent, VS..
The Pioneer Fuel Company, appellant
1. The case of Trip VS.. Northwestern Ma
tional Bank, Al MINI. 400, followed to the
effect that the insolvent law of 1881 is appli-
cable to private corporations
2. The deed of assignment under the in
solvency law was signed by the president and
secretary of the corporation under it's cor
pcrate seal.
Held that the presence of the seal gave
rise to prma facie presumption that it was
affixed by the proper authority.
3. The primary object of the insolvency
law of 1881 is a fair and honest division of
the insolvent's unexempt property among his
creditors, and passive as well as active fraud
ulent preferences are forbidden.
Vanish v. Pioneer Fuel Co., 62 N. w. R.
3S7 followed.
4. Where the assignee in insolvency brings
an action to set aside execution sale and
to cancel the record of the sherif's certificate
thereof, upon the grounds that the Judgment
and sale Hereunder constituted a preference
permitted by the insolvent in favor of one of
its creditors.
Held that in such case the defendant was
not entitled to jury trial, that the gist of
the action was to remove a cloud resting upon
the title and thus make the property avail
able assets for the payment of the in
solvents creditors
5. A deed of assignment in insolvency
which in terms assigns all of the unexempt
property of the insolvent for the equal bene-
fit of all his creditors who shall file releases
of their demands against the debtor is suf-
fcient, although the phrase bona fide is not
mod T,,Irx,