cannot be varied by any notice or representations not brought to
the actual knowledge of one of the company's principal officers, and
that there shall be no waiver not authorized by the company, parol
evidence, in a suit upon the policy, after the death of the insured,
of statements and representations made to and by the general and
local agents of the company, for the purpose of showing a waiver
of the breach of the warranty contained in the policy, and that the
company is estopped from setting up such breach as a defense, is
admissible to show such waiver and estoppel. (Ward v. Metropoll-
tan etc. Ins. Co., 80.)
17. INSURANCE, LIFE PAYMENTS PREVENTED BY
INSANITY OF THE ASSURED.-If a person, by express
contract, engages absolutely to do an act not impossible or unlaw-
ful at the time, neither inevitable accident, nor other unfore-
seen contingency not within his control, will excuse him. Hence,
if a member of an assessment insurance company promises to
pay certain mortuary assessments, and a stated sum annually
for expenses, within thirty days after notice that the same is
due; payment by the insured of the stipulated sums as they
become due is a condition precedent to any subsequent lia-
bility on the part of the company, though the mental faculties of
the insured, at the time of receiving notice of a mortuary assess-
ment, are so far impaired as to prevent him from doing business.
(Pitts v. Hartford etc. Ins. Co., 96.)
18. LIFE INSURANCE-WHEN TIME IS OF ESSENCE OF
CONTRACT TO MAKE PAYMENTS.-If a certificate of member-
ship in an assessment insurance company provides that the insured
shall make certain payments when due; that the certificate shall be
null and void if the payments are not so made; and that all moneys
paid thereon shall be forfeited to the company in case of neglect to
make any required payment, the time of payment is of the very
essence of the contract, and nonpayment, when the money is due,
involves absolute forfeiture, and releases the company from liabil-
Ity without any affirmative action on its part. (Pitts v. Hartford
etc. Ins. Co., 96.)
19. LIFE INSURANCE-NOTICE OF ASSESSMENT, VALID-
ITY OF.-A notice of a mortuary assessment, sent to a member of
an assessment insurance company, is not rendered defective by the
fact that it includes an item for three months' expenses in advance,
which the insured had for seven years elected to pay quarterly,
rather than monthly. (Pitts v. Hartford etc. Ins. Co., 96.)
20. INSURANCE, LIFE.-THE KILLING OF THE ASSURED
BY AN INSANE BENEFICIARY, under such circumstances as
would make the killing murder if the beneficiary were sane, does
not forfeit the latter's right to recover the insurance money.
(Holdom v. Ancient Order of United Workmen, 183.)
21. INSURANCE, LIFE— ESTOPPEL-A life insurance company
cannot be estopped from setting up a breach of warranty that all
statements in the application for insurance are true, unless it has
waived its right to take advantage of It. (Ward v. Metropolitan
etc. Ins. Co., 80.)
22. INSURANCE, LIFE. VOLUNTARY EXPOSURE TO UN.
NECESSARY DANGER means intentional exposure to such dan-
ger. (De Loy v. Travelers' Ins. Co., 787.)
23. EVIDENCE OF VOLUNTARY EXPOSURE TO DANGER. —
The intention of the assured to voluntarily expose himself to unnecessary
danger may be inferred from his acting so recklessly and carelessly as to
show an utter disregard of known danger, or from his taking a risk of a
danger which is so obvious that a prudent man, exercising reasonable
forethought, would not have taken it. (De Loy v. Travelers' Ins.
Co., 787.)
24. A CONDITION EXEMPTING THE INSURER FROM LIA-
BILITY for injuries suffered by the assured while walking or being on a
railway bridge or roadbed, does not extend to injuries suffered by him
when his business calls him to a track or crossing for a lawful purpose,
unless it was in a time of danger, and he willfully exposes himself to
such danger. (De Loy v. Travelers' Ins. Co., 787.)
25. A CONDITION IN A POLICY EXEMPTING AN INSURER
from liability for injuries suffered by the assured while on a railway road-
bed does not extend to the whole right of way, but only to that space
where a person might be injured by cars running along the track.
(De Loy v. Travelers' Ins. Co., 787.)
26. INSURANCE-ACCIDENT-BURDEN OF PROOF.-Under a
policy insuring against death from such violent and accidental inju-
ries as shall externally be visible on the body, and which alone
cause death, evidence that the insured was found dead and mangled
on a railroad track, establishes a prima facie case, and casts the bur-
den of proof upon the insurer to show that death resulted from a
violation of some of the conditions in the policy specially pleaded in
defense. (Meadows v. Pacific etc. Ins. Co., 427.)
27. INSURANCE — ACCIDENT – ROADBED.-A space between
railroad tracks, constituting a well-beaten, level, and smooth walk
is not a part of the roadbed, within the meaning of an accident in-
surance policy, not insuring against accidents "on a railroad
bridge, trestle, or roadbed." (Meadows v. Pacific etc. Ins. Co., 427.)
28. INSURANCE ACCIDENT - PRESUMPTION.-A person
whose death is caused by injury is presumed to have been in the
exercise of ordinary care at the time of his death. This presump-
tion is not rebutted by the unexplained fact that his body was
found mangled upon a railroad track. (Meadows v. Pacific etc.
Ins. Co., 427.)
INTEREST-LIABILITY OF STATE.-The state is not liable
for interest upon matured coupons of Indian war bonds issued under
a statute which does not expressly subject it to such Hability.
(Molineux v. State, 49.)
See Penalties, 2; Statutes, 7.
REFUSAL TO SURRENDER GOODS-INTERPLEADER.-
In an action against a carrier, or other bailee, to recover for the refusal to
surrender the goods to a person other than the bailor, claiming to be the
owner, the bailee may, by answer in the nature of an interpleader, re-
quire the claimants to litigate and determine the question of title be
tween themselves. (Shellenberg v. Fremont etc. R. R. Co., 561.)
1. INTERSTATE COMMERCE. -THE QUESTION WHETHER
A PACKAGE in which goods are offered for sale and sold is an original
package, is a question for the jury when the facts are in dispute, but is
a question of law when they are agreed upon, and are presented by a
special verdict. (Commonwealth v. Paul, 776.)
2. ORIGINAL PACKAGE.-A package devised by a nonresident
manufacturer, adapted for the sale at retail to individual consumers of
his goods, and in which they are sold to such consumers by him or his
agent, is not an original package, within the meaning of the law relat-
ing to interstate commerce. (Commonwealth v. Paul, 776.) ·
3. A STATE HAS POWER TO PUNISH SALES OF OLEOMAR-
GARINE contained in tubs not exceeding ten pounds in weight. To do
so is not to interfere with the power of Congress to regulate interstate
commerce. (Commonwealth v. Paul, 776.)
4. A TUB OF OLEOMARGARINE, CONTAINING TEN POUNDS,
put up for the purpose of being sold at retail, is not an original package,
the sale of which is protected by the law of interstate commerce.
(Commonwealth v. Paul, 776.)
5. CARRIERS-INTERSTATE COMMERCE.-A statute permit-
ting the garnishment of common carriers is not a regulation of inter-
state commerce. (Landa v. Holck, 459.)
6. INTERSTATE COMMERCE-FREIGHT CHARGES.-A stat-
ute prohibiting an increase in freight rates over the rate charged at
the time freight is tendered to a railroad company, is valid, and not
in violation of the law of interstate commerce. (Chicago etc. R. R.
Co. v. Wolcott, 320.)
1. IRRIGATION-NEGLIGENCE IN CONSTRUCTING DITCH-
INSTRUCTIONS.—It is error to instruct the jury, in an action for dam-
ages, caused by the breaking of the defendant's irrigating ditch, that
"it is incumbent upon the defendant to construct its flumes and ditches
in such a reasonable and prudent manner as that no damage shall result
to the person whose lands are crossed by the ditch." The defendant is
thus held not only to the highest degree of care, but is made an insurer
against all damages, without regard to the question of negligence.
(King v. Miles City etc. Ditch Co., 506.)
2. IRRIGATION-CONSTRUCTION OF STATUTE.—A statute con-
ferring upon irrigation companies power to acquire a right of way for
necessary canals and reservoirs, and providing that "no tract of land
shall be crossed by more than one ditch." includes lands owned by cor-
porations. (Paxton etc. Land Co. v. Farmers' etc. Land Co., 585.)
3. IRRIGATION-CONSTRUCTION.-A statute conferring upon an
irrigation company power to acquire a right of way for necessary canals
and reservoirs, and providing that "no tract of land shall be crossed by
more than one ditch, canal, or lateral without the written consent and
agreement of the owner thereof, if the first ditch, canal, or lateral can
be made to answer the purpose for which the second is desired or in-
tended," implies that no tract of land shall, without the consent of the
owner, be burdened with two or more ditches for watering the same
territory. The question is not, whether the first ditch may be so enlarged
or extended as to answer the purpose for which the second was designed,
but whether it may, as constructed, be made to supply the lands within
the reach of both. (Paxton etc. Land Co. v. Farmers' etc. Land
Co., 585.)
4. IRRIGATION-CONSTRUCTION OF STATUTE.—A statute con-
ferring upon irrigation companies power to acquire a right of way for
uecessary canals and reservoirs, does not, in the absence of express pro-
vision, confer upon it the right to connect with the ditches of another
company, not to take water therefrom, without the consent of the latter
company. (Paxton etc. Land Co. v. Farmers' etc. Land Co., 585.)
See Cotenancy, 2; Eminent Domain, 7; Waters, 12, 13.
JEOPARDY.
See Former Jeopardy.
1. JUDGMENTS VOID FOR WANT OF JURISDICTION.-A
personal judgment showing upon its face that the court rendering It
had no jurisdiction, either of the person or of the subject matter, is
absolutely void. (Moyer v. Bucks, 251.)
2. JUDGMENTS.-NOTICE BY PUBLICATION, made in the ab-
sence of any law authorizing it, is the same in effect as no notice, and
a judgment based upon it is void. (Moyer v. Bucks, 251.)
3. NOTICE BY PUBLICATION.-A personal judgment rendered
against a defendant in a bastardy proceeding, without his having
been arrested or taken into custody, and upon whom no process was
served except unauthorized notice by publication, is void. (Moyer
▼. Bucks, 251.)
4. RES JUDICATA.—A judgment denying the right of the plain-
tiff to compel the issuing to him of a certificate of stock in lieu of
one which has been lost, because he has not given a bond of indem-
nity, is not conclusive against him in another suit brought for the
same purpose, without first giving a bond, when more than four years
have intervened between the two suits, during which time the alleged
lost certificate has not been heard from, and no other claimant has
appeared therefor, and the legislature has enacted a law providing
for the renewal of stock certificates which have been worn out, lost,
or destroyed. (Guilford v. Western Union Tel. Co., 407.)
5. RES JUDICATA.-THE FINDING OF THE JURY UPON
ONE PARAGRAPH ONLY of the complaint, where there is evidence
tending to support another paragraph, precludes an action on the
cause averred in the paragraph as to which no finding was made.
(Adams v. Main, 266.)
6. JUDGMENTS MODIFICATION-EXTENDING TIME OF
PAYMENT.-A judgment prescribing a time within which money must
be paid to one party to entitle the other party to the benefit of the judg-
ment, may, in furtherance of justice, be modified by the court, after the
expiration of such time, by extending the time for payment, and pro-
viding that it may be made to the clerk of the court for the benefit of
such former party. (Tyler v. Shea, 660.)
7. JUDGMENT, RELIEF FROM. WHILE PERJURY of the
plaintiff in testifying falsely upon an issue disclosed by the com-
plaint will not, of itself, entitle defendant to relief from a judgment
procured thereby, if the facts testified to were not peculiarly or ex-
clusively within the knowledge of the plaintiff, yet such perjury
may be considered in connection with other circumstances tending
to disclose a fraudulent scheme on the part of the defendant to put
It out of the power of the plaintiff to defend the action, and as giv-
ing color to his prior acts, which are alleged to have been fraudu-
lent. (Colby v. Colby, 420.)
8. A JUDGMENT BY DEFAULT can be taken only when it ap-
pears that the defendant has been duly served with the summons, and
has failed to answer the complaint. (White v. Johnson, 726.)
9. JUDGMENT, VACATING FOR EXCUSABLE NEGLIGENCE.
It is proper to open a default against a defendant, upon the ground of
his excusable negligence, where his attorney was informed by the clerk
that no business would be transacted by the court until after a certain
date, and, relving upon this statement, he did not appear until such
date, when he found that his pending demurrer had been over-
ruled. (Anaconda Min. Co. v. Saile, 472.)
10. JUDGMENT BY DEFAULT, VACATING-TERMS-STATUTE
OF LIMITATIONS.-In opening a default against a defendant upon the
ground of his excusable negligence, the court commits no error in refus-
ing to impose any terms interfering with his right to interpose the de-
fense of the statute of limitations. (Anaconda Min. Co. v. Saile,
472.)
11. JUDGMENT BY DEFAULT, VACATING-NEGLIGENCE.-
It is not negligent, within the meaning of the law as to defaults, for s
defendant's attorney not to withdraw a frivolous demurrer, and file an
answer, before the demurrer has been disposed of in the ordinary course
of practice. (Anaconda Min. Co. v. Saile, 472.)
See Equity, 4; Evidence, 14; Process, 3, 4; Scire Facias.
JUDICIAL NOTICE.
See Evidence, 3.
JUDICIAL SALE-OBJECTIONS TO TITLE.-Though the
property sold has a frontage somewhat less than that stated in the no-
tice of sale, the purchaser will not be released from his bid on that
account, if there was a plat referred to in such notice as being in the
commissioner's office, which showed distinctly the true frontage. If he
saw this plat, he would not be relieved on proving that he did not ex-
amine it. (Carneal v. Lynd, 819.)
JURISDICTION-COLLATERAL ATTACK.-If, after a pro-
ceeding in court confirming an assessment-roll, an application is
made to the court for an order authorizing the sale of delinquent
property, evidence will not be received to prove that an affidavit of
the publication of a notice required to authorize such confirms-
tion was not true. (Hertig v. People, 162.)
See Actions; Appeal, 1; Judgments, 1; Process.
JUSTICE OF THE PEACE-EXCESSIVE FEES.-A justice of
the peace who demands and receives excessive fees is liable in an action
for the statutory penalty therefor; and it is no defense that he had no
corrupt motive or intent in collecting them; or that he was ignorant of
the fact that the fees were illegal; or that, upon discovery of his extor
tion, he tendered back the fees; or that the person paying them knew
that they were excessive, and kept silent. The question as to voluntary
payment, in such a case, is immaterial. (Leggatt v. Prideaux, 498.)
See Definitions; Execution, 5, 6.
1. VALIDITY OF COVENANT-PUBLIC POLICY.-A covenant
in a lease, providing that the lessor shall not be liable for damage
caused by fire, is v lid and not opposed to public policy as increas-
ing the risks and dangers to the public as to the destruction of its
property by fire. (Stephens v. Southern Pac. R. R. Co., 17.)
2. LANDLORD AND TENANT-COVENANT AGAINST LOSS
BY FIRE.-Under a covenant in a lease between a railroad com-
pany and its lessee of land adjoining its depot grounds, providing
that the lessor shall not be liable for damage by fire arising from
any cause, the lessee cannot recover for the loss of a warehouse
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