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The Insurance Company of North America v. Brim.

itself was not, however, erroneous. The appellant, so far as we are advised, made no request for further instructions. The case is, therefore, within the rule which denies a reversal in case an instruction is substantially accurate, but which might, with great propriety, have been supplemented with further instructions, in order to render it more intelligible and complete. Wilson v. Trafalgar, etc., G. R. Co., 93 Ind. 287; Board, etc., v. Legg, 110 Ind. 479.

Without detailing the circumstances which appeared in evidence, it is sufficient to say, since it does not appear that the company made any objection to the claim on account of the insufficiency of the notice, or that any detriment resulted to it on account of the delay, the notice was, under all the circumstances, reasonably in time. Wood Fire Ins., section 414. Of course, if the policy had required notice to be given within a definite time, not within the period prohibited by statute, or if the notice had been unreasonably delayed without any circumstances of excuse, a failure to object to a notice given after the right of action on the policy had expired would not revive the right. Trask v. State, etc., Ins. Co., 29 Pa. St. 198. This case is not within that rule. The policy contained a provision to the effect that if a suit or action should be commenced thereon, after the expiration of one year from the date of the loss, the lapse of time should be deemed conclusive against the validity of the claim. This suit was not brought until after the expiration of one year, and it is now contended that the above mentioned stipulation defeated the plaintiff's right to recover on the policy.

The statute already referred to enacts that any condition or agreement in a policy of foreign insurance, " not to sue for a period of less than three years," shall be void, and it also provides that any condition inserted in a policy to avoid the provisions of that section shall be void. It is at once obvious that the condition in the policy and the provisions of the statute can not stand together. It is said the pro«

The Insurance Company of North America r. Brim.

vision in the policy, the practical effect of which was to bar a right of action after one year, was such a contract as the parties had the right to make, and that such right was not subject to legislative control.

While the general proposition may be conceded, that insurance companies have the right to contract that parties shall assert their claims against them within a reasonable time (Riddlesbarger v. Hartford his. Co., 7 Wall. 386), yet the constitutional right of the Legislature to prescribe the terms upon which foreign corporations may transact business within the State is also abundantly established. Farmers, etc., Ins.Co. v. Harrah, 47 Ind. 236; Bank of Augusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; Cooper Man'f'g Co. v. Ferguson, 113 U. S. 727; Cincinnati Mutual, etc., Co. v. Rosenthal, 55 111. 85; Thome v. Travellers Ins. Co., 80 Pa. St. 15.

The statute must be regarded as a legislative declaration, that less than three years is an unreasonable limit within which to require parties holding claims under a policy of foreign insurance to assert their claims or be forever barred. This statute was in force when the contract of insurance was consummated, and it must be conclusively presumed that the contract was made with a due regard for the law. In so far as the statute and the condition in the policy are in conflict, the statute must prevail. It is said the statute is unconstitutional. Counsel have not called our attention to any provision of the Constitution which is supposed to be infringed, and we know of none.

The judgment is affirmed, with costs.

Filed June 15, 1887.

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Hollingsworth V. The State.

113 239 ,114 870 [115 S03

Office And Officek.New Bond.Power of Circuit Judge to Require.De- 13s 4M daring Vacancy—The act of 1852, conferring certain powers upon the judge of the court of common pleas relative to requiring new bonds fin 288 from public officers, declaring vacancies, etc., since such court has been [ISO 392 abolished, is applicable to the circuit court. Section 5538, et sea., R. 8. HI 289 1881. mi 352

Same.County Treasurer.Sureties.Release from Bond.Failure to Give Sew Bond. Vacancy.— Where the sureties in the bond of a county treasurer petition the judge of the circuit court to be released therefrom, such judge may, after proper notice to the treasurer, and a failure on his part to furnish an additional bond, as required by the statute, declare the office vacant.

Criminal Law.Embezzlement.County Treasurer.Indictment.Description of Funds.—Under the act of 1883 (Acts of 1883, p. 106) it is not necessary to the sufficiency of an indictment charging a county treasurer with embezzlement that it should contain a particular description of the different funds embezzled, i. c, whether county funds, school funds, etc.

Sake. Proceedings Declaring Vacancy.Admissibility in Evidence.Defective Summons.—Upon the trial of a county treasurer, charged with embezzlement, proceedings before the circuit judge, upon petition of his sureties, wherein the office is declared vacant, are admissible in evidence, notwithstanding the summons in that proceeding did not state where the petition would be heard. If such a statement is required under sections 5538 and 5515, R. S. 1881, its omission is a mere irregularity, not available collaterally.

Same. —Affirmative Showing of Error.—An objection to the admission in evi-
dence of the order of the judge declaring the office of treasurer vacant,
on the ground that no record of the proceedings appears to have been
made, is not available unless it affirmatively appears that such record
was not made.

Same.—Instructions.BUI of Exceptions. Supreme Court.—The mere act of
the clerk in copying into the transcript what purport to be instructions
given by the court, but which are not made part of the record by a bill
of exceptions or otherwise, does not present them in a manner authoriz-
ing consideration by the Supreme Court.
&A.XE.—Excluding Documentary Evidence.Showing of Error.—The Supreme
Court can not determine that there was error in ruling out offered doc-
umentary evidence if the instruments excluded are not in the record.

Vol. 111.—19

Hollingsworth r. The State.

Same.Embaxlemenl by County Treasurer.Demand hot Necessary to Establish. —A demand upon a retiring county treasurer by his successor for the funds remaining in his hands is not necessary in order to establish a conversion and embezzlement of such funds.

Same.Evidence.Voluminous Records.Expert Accountants.—In a prosecution for embezzlement, or other crime, where the books, records, papers and entries are voluminous, and of such a character as to render it difficult for the jury to arrive at a correct conclusion as to amounts, expert accountants may be allowed to examine such books, etc, and testify to the result.

From the Knox Circuit Court.

J. S. Prilehett, W. H. DeWolf, S. N. Chambers and E. H. De Wolf, for appellant.

L. T. Michener, Attorney General, J. C. Adams, Prosecuting Attorney, H. Gillett and W. F. Townsend, for the State.

Zollars, C. J.—It is charged in the indictment that appellant was elected treasurer of Knox county in 1884, for the term of two years, ending on the 13th day of November, 1886; that he gave bond, qualified and served as such treasurer until the 8th day of May, 1886; that, on the 27th day of April, 1886, the sureties on his official bond petitioned the judge of the Knox Circuit Court, in writing, to be released therefrom; that the judge, on that day, caused a summons to be served on appellant commanding him to appear ten days thereafter, and give additional bond with sureties; that the summons having been served and returned, and appellant having failed to execute a new bond with sureties at the time set for the hearing, the judge declared the office of treasurer vacant, and notified the Governor; that, on the 19th day of May, 1886, Charles S. Mathesie entered upon the discharge of the duties of treasurer for the unexpired term, having been appointed as such treasurer by the board of commissioners of Knox county; that at the time the office was declared vacant by the judge, appellant had in his hands $75,000 of the money which he had received by virtue of the office of treasurer during the term he served as such; that, on the 20th day of May, 1886, Hollingsworth v. The State.

Mathesie, treasurer as aforesaid, demanded of appellant the $75,000, and demanded of him to pay over or account for all the moneys which had come into his hands by virtue of the office; that appellant fraudulently failed and refused, and has ever since failed, to pay over or account for the $75,000, or any part of it, etc.

Appellant questioned the sufficiency of the indictment for the first time by a motion in arrest of judgment.

It is contended, in the first place, that the indictment is bad because it shows upon its face that appellant's term of office had neither expired nor been terminated at the time Mathesie was appointed, nor at the time the indictment was found and returned. This contention rests upon the further contention that the judge of the circuit court had no authority to hear the application of the sureties, nor to declare the offioe vacant. The act authorizing such a procedure was passed in 1852. 1 R. S. 1876, p. 190. The first section provided, that when the sureties in an official bond of any officer might remove from the State, or become insufficient, the clerk of the court of common pleas, on his own motion, or upon the affidavit of a person competent to vote for such officer, should issue a writ to the sheriff", commanding the officer to appear before the judge of the court of common pleas, ten days after the service of such process, at the court-house of the county, to answer such complaint, etc.

The second section provided that such clerk, on return of the process served, should notify such judge of the time and place of hearing.

Section three provided that, at the time set therefor, such judge should hear and determine such complaint, and, if deemed proper, might require a new bond with sufficient additional sureties to be executed and filed within ten days.

Section four provided that, if the bond should not be filed within the required time, such judge might declare the office vacant.

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