cept $50,000 in the debentures issued by the court, and in the bonds of the $15,000,000 issue at the percentage upon their fair value equal to the dividend to which they would be entitled upon a distribution of the proceeds of the sale, is not inequitable. Substantially, such a provision in a decree met with the approval of the United States Supreme Court in Ketchum v. Duncan, 6 Otto R. 659. The bill, also, in attacking the sale charges the trustees with neglect in respect thereto, amounting to fraud. I am not prepared to admit that the allegations of the bill in that behalf entitle the complainant to any relief. In the order confirming the sale the following provision was inserted: "This order is made by and upon the consent and at the request of the trustees, the complainants, and upon the consent of the parties defendants, · · · and the right to make any further order order is reserved." In view thereof I think the complainant, if entitled to any relief against the sale and the confirmation thereof, on petition and proper showing, might be admitted a party to the original foreclosure suit, and his objections would then be considered. He can have such opportunity' at the next June term of the court. The demurrer is sustained and the bill dismissed.
F ARlIfERS' lNs. Co.
(Circuit Oourt, S. D. Ohio. - - , 1880.)
lNeuRANcE-ExPLOSION CAUSED BY FIRE-COKDITION IN POLrcY.-The
destruction of a building by an explosion caused by a fire is a loss by tire within the meaning of a provision in the policy of insurance pro. viding that the company shall not be liable for any loss damage caused by explosion of any kind, unless fire ensues, and then for the loss by fire only.
Sage &; Hinkle, for plaintiff. Matthews, Ramsey d: l1fatthews, for defendant. SWING, J., (charging jury.) This action is brought by the
WASHBURN V. FARMERS' INS. CO.
plaintiff to recover from the defendant the sum of $2,100, the amount of a policy of insurance issued by the defendant to the plaintiff on the thirteenth day of February, 1878, upon bis flouring mill, situated in Minneapolis, Minnesota, and the mill machinery, tools, implements and fixtures therein and attached thereto, insuring the plaintiff against loss and damages by fire to the extent of the amount named in said policy, $700 of which was placed upon the building, and $1,500 upon the machinery, tools, implements and fixtures. The plaintiff alleges that other insurance to a large amount was placed upon the property; that on the second day of May, 1878, the said mill, machinery, tools, implements and fixtures were damaged by fire to an amount largely in excess of all the insurance upon the property; that on the twentyfifth day of May, 1878, due notice and proof of loss was given and made to the defendant, according to the conditions and terms of the policy; and the plaintiff further avers that he has duly performed all the conditions of said policy upon his part, and prays judgment against the defendant for the sum of $2,100, with interest from the twenty-fourth day of July, 1878. 'The defendant, by its answer, admits the issuing of the policy as alleged by the plaintiff, but denies that the property was injured or destroyed by fire within the meaning of the policy; but says that the injury thereto was caused by an explosion of some substance in said mill building, against which the policy did not insure the plaintiff. By this policy of insurance the defendant, in consideration of $63, the premium paid it by the plaintiff, agreed to indemnify the plaintiff against loss and damage by fire to the· property described therein, according to the terms and conditions of the policy, one of the conditions of which is "that the defendant shall not be liable for any loss or damage caused by explosion, including steam boilers, unless fire ensue, and then for the loss and damage by fire only." It is admitted, by counsel for the defendant, that the property insured was damaged to an amount in excess of all the insurance thereon; and it is also admitted that due and v.2,no.3-20
legal notice ana proof of the loss were given ana made, as required by the terms of the policy. It is admitted that at the time of the destruction of this property there was an explosion by which the entire structure was demolished. By the plaintiff it is claimed that the explosion was produced by a. fire which existed prior thereto in the mill; and, therefore, the damage was produced by fire. By the defendant this is denied, and it is claimed that the damage was caused by the There is, therefore, but one question of fact for you to ascertain under the law which I shall give you, and that is, by what cause was the damage to this property produced? The defendant, by its. contract, agreed to indemnify the plaintiff against damage and loss by fire to the building and machinery of a flouring mill. Whatever may, therefore, be necessarily connected with the building and machinery, in their use in the manufacture of flour, or growing necessarily out of and resulting from such use, by which the property would be rendered more liable to fire than ordinary property, must be held to ha.ve been in the contemplation of the defendant a.t the time of the issuing of the policy, and it must be held to have been contracted in reference thereto; and, if the damage to the property was produced by fire, it must be liable therefor. In law the cause to which the result must be attributed is not the cause nearest the result, but it is that cause which sets the other causes in operation. In the language of Justice Strong in Ins. 00. v. Boon, 95 U. S. 130: "The proximate cause is the efficient cause-the one that necessarily sets the other causes in operation. The causes that are merely accidental, or instruments of a superior or controlling agency, are not the proximate causes, and the responsible ones, though they may be nearest in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster." The rule of law announced in the foregoing case, by the learned justice, is clearly applicable to the present case. If, therefore, the evidence satisfies your minds that there
IN :BE CORSE.
existed a. fire in this mill, and the fire produced an explosion,. the fire would be the proximate cause. Although the explosion thus produced may have contributed in a large degree totha destruction of the property, it would nevertheless be a loss by fire, within the meaning of the policy, and the defendant will be liable to the plaintiff for such loss. But if there was no fire, and an explosion from some other cause than fire oc. cUlTed, by which the property was damaged, it would not be a loss by fire, within the terms of the policy, and the defend· ant would not be liable for such loss. The plaintiff must satisfy your minds, by a preponderance, that a fire existed which produced the explosion. If he has done so he is entitled to your verdict. If he has failed to do so your verdict will be in favor of the defendant. Verdict for the plaintiff.
THE MATTER OF ConSE,
(District Oourt, S. D. New York. May 3,1880.)
WIPE-WIFE's SEPARATE PROPERTy-GlFT.-FactBln this case considered, and held that certain property conveyed to the wiflt under the will of her father, and held in trust for her by his executors, which by arrangement was by them transferred to the husband, was. not intended as a gift to him BAME-SAME-SALE OJ' REAL ESTATE TO HUSBAND.-The transfer to the husband of certain real estate as part of such property, held, to havit been a sale, and not held by him as trustee for the wife. &ME-CLAIM OJ' WIFE AGAmBT HUSBAND'S BANKRUPT ESTATE.-Wiflt held entitled to prove her claim for such property against the husband's estate in bankruptcy, and also entitled to interest thereon.
P. Cantine, for creditors. C. Whitaker, for claimant. CHOATE, D. J. This is a proceeding for the re-examination of a proof of debt filed by the wife of the bankrupt for the sum of $88,672.10. In the proof of the claim it is described as "a balance due deponent for real estate, bonds, mortgages, notes and drafts conveyed, consigned, transferred and set.