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verbal agreement, made before or at the plaintiff to the defendant during
the time of issuing the policy, that periods ending on the same day, and
the reinsuring Company would not claims the same sum to be due, fur-
require the payment of the full pre- nishes prima fucie evidence of the
mium stipulated, but would abate truth of the defense. Agate v. Rich-
therefrom fifteen per cent of the ards,

..456
gross amount of premiums earned.
The St. Nicholas Insurance Company 11. Identity of name in connection
v. The Mercantile Mutual Insurance with the same or the like subject
Company,

238 matter is presumptive evidence of

identity of person.
6. To allow such proof to operate
would violate the rule which makes 12. In an action against two defend-
the writing conclusive proof of the ants to set aside a deed of land from
actual agreement between the par- one to the other as a fraud upon the
ties, and forbids that the operation plaintiffs as creditors of the vendor;
and legal effect of a written instru- the record of a judgment by the
ment shall be varied, altered or af- plaintiffs against such grantor, is
fected by proof of a prior or co- conclusive evidence against him that
temporaneous parol agreement rela- he owed the amount of it when the
ting to the same subject matter. .id suit was brought in which it was

recovered. The New York and Har-
7. A written instrument may some-

iem Railroad Company V. Kyle et
times be reformed on proof that by al.,

..587
mistake it was so drawn as not to
express the actual agreement of the 13. It is also prima facie evidence of
parties.

...id

the same fact against such vendee,

upon proof being made of the facts
8. The force and legal effect of an stated in the complaint in such ac-
unequivocal and unambiguous agree- tion, as the cause of action therein;
ment between Insurance Companies and an admission in the answer of
cannot be altered by proof that there the vendee in the suit against him
is a usage and custom not to require and his grantor of the facts consti-
its performance.

..id tuting such cause of action is suffi-

cient evidence thereof.
9. On a question of due diligence on

the part of a notary in endeavoring 14. The record of such recovery
to find the makers of a note to make against such vendor, although re-
presentment, the replies he received covered in an action in which said
to inquiries made of third persons vendee was named as defendant in
and his acts thereupon are com- the summons and complaint therein,
petent evidence. Adams v. Leland, and although the complaint therein
et al., ...

.411 stated the same facts to impeach the

good faith and validity of said deed
10. Where, in an action on contract as the complaint in the last action,

for the sale of goods, wares and is of no effect as evidence for either
merchandise, a former recovery up- party upon the question of the va-
on the same cause of action in a lidity of such deed, such vendee not
suit between the same parties is set having been served with the sum-
up as a defense, a record of a reco- mons, nor appeared in the first ac-
very in a former suit in favor of a tion.

...id
plaintiff and against a defendant of
the same names, where the com- 15. Where a subscription is made in
plaint in each suit alleges, as the writing by which the subscribers
only cause of action stated, the sale agree to advance their notes to an
of goods, wares and merchandise by Insurance Company for premiumns

...id

to be thereafter effected, it is not
competent for a subscriber in de-
fense of an action on his note to
prove that parol agreements were
made, with some of the subscribers,
that they should not be required to
give their notes, or that they should
be otherwise favored above other
subscribers. (SLOSSON, J., dissented.)
New York Exchange Company v.
De Wolf,

.593

Vide BOND.

Books OF ACCOUNT.
BURDEN OF PROOF.
INSURANCE COMPANY, 3.
JUDGMENT.
PARTNERSHIP, 2, 3, 4.
PLEADINGS, 1, 2, 3, 4, 5.
PROMISSORY NOTES, 20, 22.
SETTLEMENT.
USURY.
VERDICT.

EXCEPTIONS.

Vide New TRIAL, 1, 3, 6.

EXPRESS COMPANY.

1. Held, carriers and not forward-
ers merely. Read et al. v. Spauld-
ing,..

395

F

FORMER JUDGMENT.

Vide EVIDENCE, 10, 14.

JUDGMENT, I, 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. Wilson v.
Roberts,

..100

FACTORS AND AGENTS,

Vide AGENTS.

ATTACHMENT.
PRACTICE, title DISCOVERY.

FORMER ACTION.

Vide SETTLEMENT.

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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

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. 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

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

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

Vide ASSIGNMENT, 1.

EVIDENCE, 1.

H

HUSBAND AND WIFE.

1. A promissory note, signed by the
wife and delivered by the husband,
for the purchase of property used
and enjoyed in a business carried on
for their joint benefit, does not ope-
rate both as a note of the husband
making him personally liable and as
an appointment by the wife of her
separate estate or as a charge there-
Palen v. Lent,

..713

on.

I

evidence of the authority of its
president to indorse notes by way
of transfer. Scott et al. v. John-
son, ..

.213

Vide INSURANCE COMPANY, 6.

MONEYED CORPORATION, 10.
PLEADINGS, 1, 2.
Promissory Notes, 11.

INJUNCTION.

Vide PRACTICE, title INJUNCTION.

INSOLVENT CORPORATION.

IDENTITY OF NAME.

Vide EVIDENCE, 10, 11.

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. Hol-
brook v. Basset et al., ..... 147
Nelson et al. v. Wellington, ...178

ILLEGAL CONTRACT.

Vile CONTRACT.

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 CD,") 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. 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

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

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 undertakir.g 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
money. .

.id

their passage,

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. forth with
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
5. The contract and its partial per-
formance do not transfer or termi-
nate the whole interest of the as-
sured; but it continues to the extent
of the amount of the purchase inon-
ey remaining unpaid.

..id

6. It is no defense or ground for ex-
onerating the insurers from liability,
that after suit brought upon the
policy and prior to the trial, S. paid
the purchase money in full and re-
ceived a deed of the insured pre-
mises.

...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

7. By force of the agreement be-
tween the insured and S., the latter
is entitled to the benefit of the sum
recovered; and becomes equitable
assignee of the right of action ac-
cruing from the loss by fire; the
policy in force at the time of the
loss having been obtained by the
insured pursuant to the said contract
between her and S., and the latter
having paid to the insured the pre-
mium thereon..

..id

8. In an action upon a marine policy

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