FORMER JUDGMENT.

Vide EVIDENCE, 10, 14.
JUDGMENT, 1, 2.

FORMER RECOVERY.
Vide EVIDENCE, 10, 11.

FORWARDERS.

1. Express company receiving goods,
to deliver, for a price covering whole
cost of transportation: Held, carriers
and not forwarders merely although
they use the conveyances of others
in performing their service. Read v.
Spaulding,
.395

FRAUD.

1. Admissibility of cotemporaneous
transactions in evidence. Durbrow
et al. v. McDonald et al.,.......130

FRAUDS, STATUTE OF.

1. Where, by a written and sealed
contract between B and C, B
covenanted to furnish the brown
stone for eight houses, and set them
by a certain time, for $2,000, to be
paid in notes of $500 each, to be
made by R, and delivered as the
work progressed, and C agreed to
pay therefor in such notes accord-
ingly; and C drew an order on R
to deliver such notes to B "when
the stone is delivered according to
the contract, and at such times as
therein stated," and R afterwards ac-
cepted such order by an indorsement
thereon signed by him thus: "Ac-
cepted Oct. 17, 1856," the contract
of R is one to answer for the debt or
default of C, and the writing so
signed by him does not express the
consideration thereof, and is void
by the statute of frauds.
Roberts,

...

Wilson v.
..100

1. In an action against a Sheriff to
recover the possession of personal
property which the latter has seized
under an attachment issued in an
action on contract, pursuant to the
Code, against the plaintiff's vendor,
the Sheriff may allege in his answer,
and show by way of defense, that
the transfer to the plaintiff was made
with intent to defraud the creditors
of his said vendor, having first shown
the existence of a debt by such ven-
dor, to the plaintiff in such attach-
ment, and that the attachment was
duly and regularly issued and exe-
cuted. Thayer v. Willet, Sheriff,.344

2. It is essential to the right of
plaintiffs in a judgment to maintain
an action to set aside a deed of real
estate made by the defendant in such
judgment, as having been made with
intent to defraud creditors, that an
execution should have been issued
on such judgment to the Sheriff be-
fore suit brought. McCullough v.
Colby et al.,....
.477

3. Unless the complaint avers the
fact of issuing such execution, it will
not state facts sufficient to consti-
tute a cause of action. ... id

4. Although such an execution be
issued after suit brought, that fact
cannot be made a part of the plain-
tiff's case, either by amendment of

1. Where a charter-party stipulated
on the part of the charterers, that
the master should be supplied by
them with a sum not exceeding one-
third of the freight "free of inte-
rest and commission, which is to
be in part payment of the freight
at the exchange of twelve per cent
premium, together with the cost of
insurance on such advance," and by
further provisions any other advan-
ces they thought fit to make on the
credit of the freight should, with
premium, interest, commission and
insurance, be considered in part
payment of freight. Advances made
under the first stipulation, where
the voyage is in part performed, are
at the risk of the charterers, volun-
tarily placed by them at the hazard
of the voyage, and are to be deem-
ed freight earned, and not liable to
be refunded, though the vessel is
afterwards lost. Kinsman v. The
New York Mutual Insurance Com-
pany,
...460

2. Where the service has been in
part performed, and the owner vol-
untarily receives the goods at an in-
termediate port, to which the vessel
is driven by perils of the sea, freight
pro rata itineris is earned and may
be demanded.
id

Vide ASSIGNMENT, 1.
EVIDENCE, 1.

INDORSEMENT.

1. Where notes are pledged as secu-
rity for the repayment of a loan, and
the pledgor indorses such notes
making them payable in terms to
the pledgee "for account of" him-
self. (e. g., "pay A B, for account
of C D") the pledgee takes the
title to the notes, and may sue upon
and collect them. Such collection
and the application of the proceeds
to the payment of the debt due to
himself is receiving payment for
account of the pledgor, within the
meaning of such an indorsement.
Nelson et al. v. Wellington,.....178
Smith et al. v. Hall,..

..319

2. The uniform custom and habit of
an insurance company is sufficient

INSOLVENT CORPORATION.

1. A transfer of collateral security
made in good faith to secure a pre-
sent loan to be used in due course
of business, is not a transfer with
intent to give a preference within
the act (9) forbidding transfers
by corporations, when insolvent,
with intent to give a preference
to one creditor over others.
brook v. Basset et al.,.
Nelson et al. v. Wellington,.....178

Hol-

147

2. An Insurance Company cannot be
said to be insolvent, or to act in con-
templation of insolvency, within
the act last mentioned, merely be-
cause the sums insured greatly ex-
ceed its capital; nor when its assets
are more than sufficient to meet all
losses of which the Company has
any notice, information or suspi-
cion; nor under such circumstances
can a loan made by the Company,
secured by collaterals, for the pur-
pose of meeting the liabilities of the
Company as they arise, with the
belief that the Company is solvent
and will meet all its engagements,
and in order to sustain the Company
in its business and enable it to do
so, and with the application of the
money raised to that object, be
deemed a transfer with intent to
give an unlawful preference. ....id

INSURANCE.

1. An insurer of passage money, gen-
erally for the voyage, by a policy
in the usual form of a freight policy,
is not liable because the vessel is
delayed on her voyage by perils of
the sea, if she actually makes the
voyage in suitable condition to carry
to the port of destination all who
embark on the voyage. Howard
et al., v. Astor Mutual Insurance
Company,
.38

2. Insurance of passage money, gen-
erally, is not an undertaking that
the ship shall perform the voyage
within any particular time, or that
the insured shall have the benefit
of special contracts for passage. But
only that the ship shall not be pre-
vented by the perils insured against
from making the voyage, and earn-
ing the passage money of those who
embark in her; and that she shall
not by a peril insured against be
prevented from using her ports and
receiving and transporting such per-
sons as have engaged passage and
are ready to embark in her......id

3. Mere delay of arrival is not ground
of recovery from the insurer, al-
though in consequence of such delay
those who have engaged and paid
in advance for passage at an inter-
mediate port for the residue of the
voyage, refuse to wait, and demand
and receive back their passage
money.
.id

4. Where a policy of insurance upon
buildings against loss or damage by
fire provides "that in case of any
transfer or termination of the inte-
rest of the insured, either by sale or
otherwise, without the consent of
the insurers manifested in writing,
the policy shall thenceforth be void
and of no effect," and where the in-
sured contracted to sell and convey
the insured property to one S. for
$5,500; viz.: $2,500 cash, and
$1,500 in twelve and $1,500 in
twenty-four months, and to keep
Bosw.-VOL. V.
93

the premises insured, and that the
benefit and indemnity against loss
and damage by fire should enure
to the said S., who was to pay to
such insured the premium she might
pay for the insurance, and to convey
the property by warranty deed to
S. on full payment by him of the
purchase money; and S. forthwith
took and kept possession of said
premises, and where subsequently
and after the $1,500 first payable
had been paid, and before the other
$1,500 was paid, and while the poli-
cy was in force, the premises were
damaged by fire to more than $2,000,
the sum insured; and where no no-
tice of the contract between the
insured and S. had been given to
the Company until after the loss;
the insured is entitled to recover to
the extent of the unpaid purchase
money and interest due thereon,
and to that extent only. Shotwell
V. The Jefferson Insurance Com-
pany,

.247