TRUE V. MANHATTAN FIRE INS. CO.
But, while revising this verdict, there is another circumstance that ought to be considered. The United States was entitled to interest on the value of this lumber from the time of the conversion, in the summer or faU of 1882, until the finding of the ,verdict,November 27, 1885. No claim for interest was made on the trial, or the court would have instructed the jury to allow the same. But, under the circumstances, I think it nothing more than right to provide that the interest which the plaintiff was entitled to recover be deducted from the $250, and the verdict considered as excessive only for the remainder. Three years' interest at 8 per centum per annum on $500 is $120, which, being deducted from $250, leaves a remainder of $130. The order of the court will be that the verdict be set aside, and the cause retried, unless the plaintiff, within 10 days hel'eof, enters a remittitur for the amount of $130.
OoZorado. August 6, 1885.)
FIRE INSURANCE-FoRFEITURE-AsSIGNMENT OF POLICY TO SECURE LOAN.
An assignment of a policy merely to secure a loan is not one which is forbidden in the usual prohibition against assignments, since the interest of the insured is not divested; and where such assignment is made with the company's consent. the re-assignment, upon payment of the loan, without consent, does not work a forfeiture, and the insured is entitled to recover.
Ruling on Demurrer. HALLETT, J., (orally.) True v. Manhattan Fire Ins. 00. is an action upon a policy of insurance. It is averred that the Manhattan Company issued to the plaintiff a policy upon certain property in Poncha Springs, and thereafter, and before the loss occurred, the same property was reinsured in the Phrenix Company. The defendants answered separately, denying the matters alleged in the complaint, and then setting up a separate defense that after the policy was made, and before the loss, plaintiff assigned and transferred his policy to his brother, whose Christian name is to the defendant unknown, which assignment was sanctioned and assented to by the Manhattan Company, and that the brother remained the owner of the policy until after loss occurred. To that the plaintiff replied that the assignment of the policy was to secure a loan made by his brother to him, which was then secured upon the property insured in and by said policy, and that before the institution of the suit the plaintiff paid off and discharged the loan which he had thereto1
From Insurance Law JQurnal. ,
fore obtained, and as collateral to secure the payment for which he had transferred said policy to said H. A. True. Thereupon the said H. A. True reconveyed and made over the said policy, and all rights to recover any sum that might be due and payable therefor. There is a demurrer to this replication. An assignment of a policy as a security of a loan of money is not one which is forbidden by the usual provision in policies to the effect that if any assignment be made without the written consent of the company, it shall work a forfeiture of the policy. That clause is held to relate only to such assignments as divest the assignor of all interest in the policy and in the property. If he make sale of the property, and thereupon assign the policy to the purchaser, without the consent of the company, it will avoid his policy. But any transfer which does not have the effect of divesting him of all interest in the property, if, notwithstanding the transfer, he still retains an insurable interest in the property. it does not have that effect. The reason is, the company is only entitled to know when the property passes into the hands of another, so that the risk may depend upon' the other, instead of the person to whom the policy was issued. To borrow money upon the premises does not havethat effect. In some policies there are clauses forbiding the incumbering of the property. Perhaps, in such a case, the incumbrance would avoid the policy; but that is not the question here, because it is not alleged in the answer that the plaintiff incumbered the property, but only that he assigned his policy; so that the question is, upon the answer and upon the replication to the answer, whether the assignment being made as security for a loan, that will operate to discharge the company; ,and upon that it must be said that it will not have that effect. Upon paying off the loan, the right in the plaintiff to the policy was regained, -became complete again,-and I think th,is would be true whether there had been any express assignment or reassignment by H. A. True or not. This position is supported by authorities cited in May, Ins. § 379. The demurrers to the replications will be overruled.
UNITED STATES V. SINNOTT
Oregon. January 11,1886.)
Lumber made at the saw-mill on the Grand Ronde Indian reservation is in fact the "property" of the Indians thereon, and not that olthe United 8tlttes. within the purview ,of section 3618 of the Revised Statutss;Pond,the agent, subject to the instructions of the commissioner of Indian affairs, may dispose of any portion of the same, and apply the proceeds to the support 9f the mill, or otherwise for the benefit of the Indians, without reference tc>section8617
UNITED STATES V. SINNOTT.
of the Revised Statutes, requiring money received for the use of the United States to be deposited to its credit.
DOUBLE PAYMENT OF SALARY.
The superintendent of Indian affairs in Oregon returned to the department two vouchers for the payment by him of the salary of the agent of the Grand Ronde reservation for the second quarter of 1873, each being marked "triplicate," from which the accounting officers assumed that the salary was paid twice, and'charged the agent with the amount of such payments in the settlement of his official accounts. Held, (1) that on the face of the transaction it was apparent that these two papers were but parts of one voucher taken In triplicate, and that there was but one payment; and (2) that, if there had been two payments, the agent, although liable for the excess, as an individual, as for money had and received to the use of the United States, was not liable therefor on his bond.
MONEY PAID BY AGENT WITHOUT AUTHORITY.
The defendent Sinnott employed a person on the reservation aforesaid, as "superintendent of farms and mills," and, in reJlorting the fact tothe come missioner, said that he did so at the instance of some political friends," but there was really no necessity for the employment, and advised that it be disapproved, which was done; but the agent continued the person in such employment, and paid him therefor, l\nd, on. settlement of his .ac.coun.ts.at.the. treasury, $1,500 thereof was disallowed. Held, that the r.ayments being not only without authorit)', but contrary thereto, were illega, and the agent ·and his sureties are liable therefor.
At Law· . James F. Watson, for plaintiff. William B. Gilbert, for defendants. DEADY, J. This action is brought on the bond dated March 5,1872, of the defendant Patrick B. Sinnott, as Indian agent at the Grand Ronde reservation, and of the defendants Luzerne Besser and E. Cahalin, as sureties therein, to recover a balance of $3,048.18, alleged and ascertained to be due the plaintiff thereon, at the United States treasury, March 21, 1885, on account of money and property received by said Sinnott under said bond and not duly accounted for, with interest from said date at the rate of 6 per centum per annum, and costs and disbursements. The answer of the defendants consists of a denial of the failure of Sinnott to account, and the correctness and justice of the settlement at the treasury. The case was heard by the court without the intervention of a jury. The sum sought to be recovered consists of these items, namely: (1)$1,179, the proceeds of the sale of certain lumber made at the Indian saw-mill; (2) $375, the amount of a second payment by the superintendent to the agent on his salary account, for the second quarter of the year 1873; (3) $1,500 paid to C. D. Folger, between July 1, 1874, and August 25. 1876, as "superintendent of farms and mills," less a credit of $5.82 for an unexpended balance deposited to the credit of the United States. The mill at which this lumber was sawed was erected by the United States for the Indians of this reservation in pursuance of the treaty with the Umpquas,of November 29, 1854,(10 St. 1125,) and that with the Molallas. of December 21, 1885, (12 St. 981,) and in fact belongs to them; and therefore, in my judgment, such lumber was not the "property" of ,the United States, wit,hinthe purview of sec-
tion 3618 of the Revised Statutes, which requires the proceeds of any sale thereof to be conveyed into the treasury; nor was the money received therefor, received "for the use of the United States," within the purview of section 3617 of the Revised Statutes. As the agent arid guardian of the Indians, it was the duty of the defendant Sinnott, subject to the instructions of the commissioner of Indian affairs, to dispose of the lumber made at this mill, and not needed by the Indians for their own use, and to use or apply any money or other property received therefor for their benefit. This lumber was the product of Indian labor, combined with the labor and skill of white men, that the United States bound itself to furnish them in consideration of the cession of their lands. It was not, then, properly speaking, the property of the United States; and certainly not within the contemplation of the sections of the Revised Statutes, 3617, 3618. In this case it appears from the treasury statement and the defendant's accounts that in 1873 he received $1,079.31 from the sale of lumber, of which he deposited to the credit of the United States, or in some way conveyed into its treasury, $100.31, and used the remainder in payment of current expenses of the agency, including the wages of the sawyer and loggers, first charging himself with the amount received. At the time he had no instructions to make any other or special disposition of these funds, and did not receive any until October, 1876, when he was instructed to deposit the same to the credit of the United States. In the second quarter of 1874 the defendant furnished $200 worth of this Indian lumber for the building of the manual labor school on the reservation, and paid for it out of the funds furnished and designated for that purpose. The money received for this lumber he then applied to the payment of current expenses, first himself with the amount, as in the case of the funds so received in 1873. It is objected that this transaction was contrary to section 3679 of the Revised Statutes prohibiting expenditures in any department of the government in excess of appropriations. But, certainly, this section has no application in the premises. There is no question but that the money expended for the lumber for the labor school was appropriated for that purpose, and the agent had as much right to use it in the purchase of material from the Indians as anyone. So that the item of $200 is in the same category as the one of $979, and the question concerning both is, was the money disbursed or accounted for according to law? As I have said, in the absence of any instruction to the contrary, in my judgment it was; and the defendant nott should be credited with the amount· . And, even if the disposition of the money received from the sale of the lumber was a technical violation of section 3617 or 3618 of the Revised Statutes, there is no pretense but that the defendant acted in good faith, and the Indians to whom the, money really belonged of it. And therefore, upon any equitable view of the had the