17 Ohio 407 (Ohio 1848), Trumbull County Mut. Fire Ins. Co. v. Horner

Citation:17 Ohio 407
Opinion Judge:READ, J.
Party Name:TRUMBULL COUNTY MUTUAL FIRE INSURANCE COMPANY v. JAMES T. HORNER
Attorney:Van R. Humphrey, McLain & Palm, and Crowell & Brown, for plaintiff in error Hoffman & Hutchins, M. & C. G. Sutliff, R. P. Ranney, and Geo. M. Tuttle, for defendant
Court:Supreme Court of Ohio
 
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Page 407

17 Ohio 407 (Ohio 1848)

TRUMBULL COUNTY MUTUAL FIRE INSURANCE COMPANY

v.

JAMES T. HORNER

Supreme Court of Ohio

December, 1848

THIS is a writ of error to the Court of Common Pleas of Trumbull county.

The action below was assumpsit. It was brought to recover an assessment upon the deposit note of the defendant, a member of said company, executed by him to the company upon the issuing of a policy to him by the company -- the assessment being needed to pay a loss sustained by fire.

The defendant demurred to the plaintiff's declaration. The demurrer was sustained, and judgment rendered for the defendant. That judgment is sought to be reversed by these proceedings.

Two points were intended to be raised by the demurrer. 1. That there was no averment in the declaration that $ 100,000 had been subscribed before the company issued the policy of the defendant, in accordance with the provisions of the charter. 2. That there was not a sufficient averment of demand before suit brought.

The case was reserved for the purpose of publishing the opinion of the court upon the first point.

Judgment reversed and cause remanded.

SYLLABUS

A member of a mutual fire insurance company, when sued upon an assessment upon his deposit note, to pay a loss occasioned by fire, cannot set up as a defense that he and his associate corporators have neglected to comply with the provisions of their charter.

Van R. Humphrey, McLain & Palm, and Crowell & Brown, for plaintiff in error, cited the following authorities:

Henriques v. Dutch West India Co., 2 Lord Raym. Rep. 1535; Ang. & Ames on Corp, 506-7, 574-5, 746-9; 14 Johns. Rep. 245; 6 Cowen's Rep. 23; 8 Ohio Rep. 552; 10 Ohio Rep. 111; 15 Ohio Rep. 322; 5 Mass. 230; 5 Johns Rep. 378; 7 Pick. Rep. 370; 12 Ohio Rep. 146; 3 Met. Rep. 137; 1 Wend. Rep. 557; 2 Blackf. Rep. 367; 16 Mass. 100; 9 Mass. 423; 9 Mass. 403; 16 Mass. 94; 14 Johns. Rep. 338; 13 Ohio Rep. 1.

Hoffman & Hutchins, M. & C. G. Sutliff, R. P. Ranney, and Geo. M. Tuttle, for defendant, cited the following authorities:

Bank U.S. v. Dandridge, 12 Wheat. Rep. 64; Bank of Augusta v. Earl, 13 Pet. Rep. 587; Ohio v. Granville Alexandrian Society, 11 Ohio Rep. 12; 2 Kent's Com. 298; 4 Pet. Rep. 152; 8 Ohio 286; 11 Ohio Rep. 97, 393; 10 Ohio Rep. 108; 4 Wheat. Rep. 636; 13 Conn. Rep. 267; 8 Ohio Rep. 257; 2 Pet. Rep. 527; 3 Wend...

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