ruptcy, it is proper to look behind it to the character of the debt upon
which it is founded; and if it is ascertained that the debt belongs to
a class upon which the discharge does not operate, the judgment will
be enforced.
Donald v. Kell, 1
2. Same.- Revival of Judgment.—Rights of Third Parties.-Record.—Admin-
istrator. — Wrongful Conversion.-Where, in such case, a judgment is
sought to be revived and enforced against real estate acquired by
the debtor after his discharge in bankruptcy, and by him sold to a
third party, and the record shows that the action in which the judg-
ment was rendered was upon a promissory note, executed by the
debtor in his individual capacity, the judgment will not be revived
or enforced against such third party, although, in fact, the note on
which the judgment was rendered had been given by the debtor to his
successor, as administrator, for moneys belonging to the estate, which
had been wrongfully converted by the former to his own use.
Ib.
3. Same.-Pleading.—Answer.—Unnecessary Averments.-Where an answer
to a complaint to revive and enforce a judgment against one who has
been discharged in bankruptcy shows that the judgment is founded on
a promissory note, it is not necessary that there should be an addi-
tional averment that the debt was not incurred in a fiduciary capac-
ity, as the note on its face implies a contract between the parties as
individuals.
[b.
4. Estoppel. Promissory Note.-Failure of Consideration. — Cancellation.—
Where, in a suit upon a part of a series of promissory notes given for
the purchase-price of land, the others not being due, the answer sets
up facts showing a failure of the consideration of the notes sued on
only, but praying that the whole series be declared satisfied, and a
judgment is rendered for the defendant, that judgment is not a bar to
a proceeding upon the remaining notes, and a complaint in equity,
based upon such judgment, to obtain the cancellation and surrender
thereof, will not lie.
Kilander v. Hoover, 10
5. Same.-Action Upon Series of Notes. When Judgment Bars Subsequent
Action. It is only where the judgment involves the whole of a series
of notes, and settles the entire defence thereto, that it operates as an
estoppel as to the whole; otherwise the judgment is a finality only
as to so much of the claims and defences as were actually litigated in
the first suit.
Ib.
6. Conclusiveness of.-Parties.-Judgments are presumptively only conclu-
sive against parties in the character in which they sue or are sued.
McBurnie v. Seaton, 56
7. Same. Estoppel.-Former Adjudication.-The estoppel of a judgment is
only presumptively conclusive where it appears that the suit and the
issues were of such a character that the judgment could not have
been rendered without deciding the particular matter again brought
in question.
Ib.
8. Conclusiveness.-Collateral Attack.-Jurisdiction.-A judgment rendered
by a court having jurisdiction of the subject matter and of the per-
sons of the parties will stand as against a collateral attack.
Walker v. Hill, 225
9. Same.-Guardian and Ward.-Proceedings to Sell Land.- Mere Errors and
Irregularities not Available Collaterally. However irregular and errone-
ous the proceedings and orders of a court having probate jurisdiction
may be, in relation to the sale and conveyance of the real estate of
minor heirs, upon the petition of their guardians, yet if such proceed-
ings and orders are not void, they are conclusive when questioned col-
laterally.
Ib.
10. Costs.-Criminal Law.-Jurisdiction.-Dismissal of Appeal.-A judgment
for costs rendered against the defendant in a criminal prosecution,
upon dismissal by a court having no criminal jurisdiction, is void.
Ferrier v. Deutchman, 330
11. By Default Against Insane Person.-Suit to Set Aside.-Mistake.-Guar-
dian and Ward.-Promissory Note.-Innocent Holder.-Fraud.-Consider-
ation. Where a judgment by default is taken against a person of
unsound mind, after due service of process, by a good-faith holder
of a commercial note, which had been obtained by the original payee
from the defendant by fraud and without consideration, it may be
set aside under section 396, R. S. 1881, at the suit of the guardian or
administrator, and the latter let in to defend, by showing that the
defendant was of unsound mind when he executed the note, and that
it was without consideration, although the plaintiff practiced no fraud
in obtaining the judgment and had no knowledge of the defendant's
insanity, which had not been judicially declared.
Dickerson v. Davis, 433
12. Same.-Collateral Proceeding in Aid of Execution.- Will not Defeat Right to
Relief from Judgment.-The right to obtain relief from a judgment
under section 396 can not be defeated by the plaintiff instituting pro-
ceedings in aid of an execution, to enforce the judgment from which
the defendant, by appropriate proceedings then pending, is seeking to
be relieved.
13. Same.--Sale.-Redemption by Guardian.-The fact that the guardian of
an insane person, against whom a judgment has been wrongfully
obtained, to save his ward's property, redeems from a sale thereof
under proceedings to enforce the judgment instituted during the pend-
ency of a complaint to set it aside, is not a bar to relief under sec-
tion 396.
14. Same.-Wrongful Judgment.-Enforcement.-Effect of Setting Aside.-One
who proceeds with the enforcement of a judgment wrongfully obtained,
with knowledge that proceedings have been instituted by or on behalf
of the defendant to be relieved therefrom, assumes the risk that, if
the judgment be set aside, he will be compelled to restore to his adver-
sary whatever has been so coerced from him.
Ib.
15. Suretyship.-Contribution.--Collateral Attack.-Where a valid judgment
has been rendered against several defendants, in which the question
of suretyship between them has been determined, a suit for contri-
bution afterwards brought by one of such defendants is a collateral
attack on the judgment, and will fail.
Knopf v. Morel, 570
16. Same.-Evidence.--Reversible Error.--Parol evidence attacking a judg
ment which the record thereof on its face shows to be void, though
incompetent, does not prejudice nor impair the rights of the party
claiming under such judgment, and the admission of such evidence is
not reversible error.
JUDICIAL KNOWLEDGE.
See MECHANIC'S LIEN, 4; SUPREME COURT, 9.
See APPEAL, 1; GRAVEL ROAD, 1, 2; JUDGMENT, 8 to 11.
See INTERROGATORIES TO JURY; MORTGAGE, 1.
1. Juror.-Examination of, on Voir Dire.-Misconduct.-Dury of Juror.--Prac-
tice. In the examination of a juror upon his voir dire, if the general
question asked fairly arouses his attention and directs it to the infor-
mation desired, it is enough without specific questions covering mi-
nute phases of the subject, and it is the duty of the juror to make full
and truthful answers, neither falsely stating any fact nor concealing
any material matter within the general scope of the question, and
any violation of this rule is such misconduct as is prejudicial to the
party.
Pearcy v. Michigan Mût. Life Ins. Co., 59
2. Same.-New Trial.-Insurance.-In an action against a life insurance
company to recover upon a policy of insurance, where a juror, in
response to a question asked in the examination of the jury as to
whether he held a policy of insurance issued by the defendant, an-
swered in the negative, the truth being that he had taken out such
a policy on his life for the benefit of his wife, the plaintiff having no
knowledge of the fact, he is guilty by reason of such concealment of
such misconduct as entitles the plaintiff to a new trial, notwithstand-
ing his affidavit and those of his fellow-jurors, that in arriving at
their verdict they were guided solely by the law and evidence. Ib.
JUSTICE OF THE PEACE.
See APPEAL, 1.
LANDLORD AND TENANT.
LAW OF CASE.
See SUPREME Court, 6.
1. Implied Covenant for Quiet Enjoyment.-Landlord and Tenant.-A cove-
nant for quiet enjoyment is implied in every mutual contract for leas-
ing land, by whatever form of words the agreement is made.
Hoagland v. New York, etc, R. W. Co., 443
2. Same.-State Canal. - Lease of Use of Surplus Water.-Quiet Enjoyment.—
Under a lease by the State of the use of so much of the surplus water,
not required for navigation, of the Wabash and Erie Canal as would
be sufficient to propel certain machinery in the lessee's mills, the im-
plied covenant for quiet enjoyment was such that, so long as the canal
was used for purposes of navigation, and while there was, during that
period, a surplus of water, the lessor agreed to do no acts which would
interrupt or deprive the lessee of its enjoyment.
3. Same.-Abandonment of Canal.-Appropriation to Other Uses.—Obstruction
of Channel.-The contract in such case did not impose upon the lessor
or its grantees any obligation to keep the canal in repair, or to main-
tain it in such a condition that a surplus of water would be avail-
able, or to supply the lessee with any water whatever, but the latter
took the lease subject to all the vicissitudes which might attend a
public work of that character, and to the right of the lessor or its
grantees to abandon the canal for purposes of navigation and to ap-
propriate it to other uses, including the construction of a railroad on
the line occupied by it, thereby filling up the channel.
Ib.
LEGISLATURE.
See Town.
LICENSE.
See INTOXICATING LIQUOR; PHYSICIAN.
See ATTORNEY AND CLIENT, 3; JUDGMENT; MECHANIC'S LIEN; MORT-
GAGE; SHERIFF'S SALE; TAXES; TAX SALE.
LIFE INSURANCE.
See INSURANCE; JURY.
1. Mutual Benefit Associations. Members Take Notice of By-Laws.-Certifi-
cate.-Contract. - Mutual benefit associations are in the nature of mut-
ual insurance companies, and persons who become members thereof
are bound to take notice of the by-laws, the latter becoming a part of the
contract the same as if written in the certificate. Holland v. Taylor, 121
2. Same.-Change of Beneficiary.—Provision of By-Laws.-The beneficiary
in a certificate issued by a mutual benefit association, providing for a
change of beneficiary, does not, during the life of the assured, have
an indefeasible right in the contract or fund to be paid thereunder;
but such beneficiary has an interest which can only be defeated by a
change effected in the manner provided by the by-laws.
Ib.
3. Same.-Attempted Change of Beneficiary by Will.-Guardian.-Executors.—
Control of Fund.-Where the by-laws of a mutual benefit association,
not a domestic corporation, provide for the payment of a sum of
money to the dependents of a member, and fix definitely the manner
of changing the beneficiary, upon the death of the assured, without
making a change in the manner specified, the beneficiary named in
the certificate becomes the absolute owner of the fund, unaffected by
a will attempting to make a different disposition thereof, and, if the
beneficiary is a minor under guardianship, the guardian is entitled
to the possession and control of the money as against the assured's
Ib.
4. When Premiums can not be Recovered.-- Where a risk once attaches
under a valid policy, premiums paid upon it during its continuance
can not be recovered back as for money had and received.
Continental Life Ins. Co. v. Houser, 266
5. Policy Incontestable Except for Fraud.-Non-Payment of Premium.-Taking
Order.-- When Insurer Estopped to Deny Payment.-Where both the policy
of insurance, which provides that it is incontestable except for fraud,
and the application state, the one by express words and the other by
clear implication, that the consideration has been paid, the insurer is
estopped to deny payment as against the beneficiary, and the policy
is enforceable by the latter, notwithstanding part of the premium was
not in fact paid, but instead orders were given therefor by the as-
sured on his employer, who, at his request, refused to pay them, and
although the orders stipulated that if they were not paid the assured's
rights were thereby forfeited.
Kline v. Nat'l Benefit Ass'n, 462
6. Same. Interest of Beneficiary in Policy.-Not Affected by Subsequent Acts of
Assured. The beneficiary in an ordinary contract of insurance takes
an immediate interest in the policy, and his rights can not be im-
paired by any act of the assured performed subsequent to its exe-
cution.
7. Age of Assured.--Requirements of By-Laws.-Disregard of.-Estoppel.--A
life insurance company, organized under the laws of this State, which
issues a policy to one under the age required by its by-laws merely,
with knowledge of the assured's true age, or which, after obtaining
such knowledge, still retains the consideration and makes no offer to
cancel the contract, is estopped to set up the matter of age as a de-
fence to an action on the policy. Gray v. Nat'l Benefit Ass'n, 531
8. Same.--By-Laws.— Violation of by Insurer.—Rights of Third Persons.-By-
laws enacted by the directors, for their own government in the man-
agement of the business of the corporation, can not be extended to
affect the validity of acts done in disregard thereof, especially where
the rights of third persons are concerned.
9. Same.--Pleading.--Setting Out By-Law.-Where, in an action on a life
insurance policy, the insurer bases its defence upon its rules or by-
laws, they must be set out in the answer or the latter will be bad. Ib.
10. Insurable Interest.-No one can have the benefit of an insurance effected
by himself upon the life of another, unless he has an insurable inter-
est in the life insured.
Amick v. Butler, 578
11. Same.-Creditor's Insurable Interest in Life of Debtor.-Amount of Insurance
Permissible.-A creditor has an insurable interest in the life of his
debtor, and may in good faith take insurance upon his life. The
amount of the insurance obtained must bear some just proportion to
the debt, or the extent of the obligation assumed, and the contin-
gencies attending the maintenance of the policy, though it can not
be limited to the amount of the debt.
12. Same.-Liability of Creditor for Surplus After Payment of Debt.-Where
money has been collected upon a policy of insurance which had its
inception in a scheme of mere speculation on the life of the insured,
or where insurance is taken out by a debtor as security for the ben-
efit of his creditor, the expense of procuring and continuing the policy
being borne by the former, the amount collected, less the debt secured
or the sums advanced in obtaining and keeping the policy in force,
may be recovered by the personal representatives of the person in-
sured.
Ib.
13. Same.- When Creditor Entitled to Full Amount of Policy.—Where a cred-
itor receives from his debtor a policy of insurance on the life of the
latter, paying all the expenses attending the issuance thereof, and all
subsequent assessments and charges thereon, and being named therein
as beneficiary, and upon the death of the debtor receives the amount
stipulated therein, which is largely in excess of the indebtedness and
the expenses of insurance paid by him, he is not liable to the repre-
sentatives of the debtor for such excess, although it had been agreed
between the parties that if the debtor should pay the indebtedness and
the expense of insurance the policy should be turned over to him. Ib
See GUARDIAN AND WARD; SOLDIER'S BOUNTY; STATUTE OF LIMITA-
TIONS; TRUST AND TRUSTEE.
LOTTERY.
See CRIMINAL LAW, 33.
MALICIOUS PROSECUTION.
1. Complaint.-Averment of Conspiracy.― Evidence.-A complaint in an
action against two or more for malicious prosecution, which charges
that the defendants wrongfully, maliciously, and without probable
cause, did the several things therein charged, to the plaintiff's injury
and damage, is sufficient, and authorizes the admission of evidence
to show that the defendants were acting in concert in bringing about
the alleged injurious result, without an allegation that they confed-
erated and conspired together.
Jenner v. Carson, 522
2. Same-Gist of Action.--Damage.-Conspiracy.-In such case the damage
is the gist of the action, and not the conspiracy.
Ib.
MANSLAUGHTER.
See CRIMINAL LAW, 32.
MARRIED WOMAN.
See CONTRACT, 5; CONVEYANCE, 3; HUSBAND AND WIFE; MORTGAGE, 4,
6, 8; PRINCIPAL AND SURETY, 5; SHERIFF'S SALE, 4.
1. Surety for Husband. - Mortgage.-A mortgage executed in 1875 by a
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