Appeal
from circuit court, Jefferson county; James J. Banks, Judge.
This
action was brought on May 6, 1892, by the appellant, Mrs. E
Feibelman, against the appellee, the Manchester Fire
Assurance Company, to recover insurance on property destroyed
by fire. The original complaint, as shown by the return of
the certiorari, was in words and figures as follows
"The plaintiff claims of the defendant the sum of
fourteen hundred and three 00/100 dollars, being the value of
loss by fire on fixtures, six hundred dollars; two pool
tables, one hundred dollars each; and six hundred and three
dollars on stock of wine, brandy, whisky, beer, tobacco, and
cigars, and other merchandise,-as per adjustment with one
Witherbee, the defendant's adjuster, which the defendant
on the 3d of September, 1891, insured against loss or injury
by fire, and other perils in the policy of insurance, for the
term of one year, which said property was destroyed by fire
on January 10, 1892, of which the defendant has had
notice." On April 12, 1893, the complaint was amended by
adding the following count: "The plaintiff claims of the
defendant a further sum of $1,403, the value of fixtures, two
pool tables, and a stock of merchandise, consisting of wine
brandy, whisky, beer, tobacco, and cigars, and other
merchandise which the defendant on the 3d day of September
1891, insured against loss or injury by fire, which said
property was destroyed by fire on the 10th day of January
1892, of which the defendant has had notice." To this
complaint, as amended, the defendant demurred on the ground
first, that there is a misjoinder of causes of action, in
that the first count is a suit upon an adjustment by the
defendant, and the second is upon a policy of insurance. And
to the second count of the complaint, the defendant
demurred-First, because it does not specify with sufficient
definiteness the fixtures and merchandise alleged to be
destroyed by fire; and, second, because it is a total
departure from the cause of action as set out in the first
count of the complaint. This demurrer was overruled, and the
defendant pleaded, in the first and second pleas, the general
issue, and the denial of the allegations of the complaint,
and the following special pleas: "(3) For further
answer, the defendant says, before the fire named in the
complaint, the plaintiff had disposed of the property alleged
to have been destroyed. (4) For further answer, the defendant
says that the property named in the complaint was not
destroyed by fire, as alleged in the said complaint. (5) For
further answer, the defendant says that, after the policy
named in the complaint was issued, the plaintiff executed a
mortgage upon the three pool tables, a part of the property
insured, which rendered the said policy void, under the terms
and conditions thereof. (6) For further answer, the defendant
says plaintiff is not the owner of the policy of insurance
sued on in this case. (7) For further answer, the defendant
says the property named in the policy was destroyed through
the fault of the plaintiff, and hence the plaintiff cannot
recover in this suit. (8) For further answer, the defendant
says that, after the policy named in the complaint was
issued, H. A. Feibelman, to whom said policy was issued,
executed a mortgage to the South Side Savings Bank, a body
corporate, upon the three pool tables named in the complaint,
the same being a part of the property insured, which rendered
said policy void under the terms and conditions thereof. (9)
For further answer, defendant says that, after the policy
named in the complaint was issued and delivered, H. A.
Feibelman, to whom said policy was issued, before he
transferred the same, executed a bill of sale, thereby
conveying to the South Side Savings Bank the three pool
tables named in the complaint, a part of the property
insured, which rendered said policy void under the terms and
conditions thereof. (10) For further answer, the defendant
says that, at the time the property named in the complaint
was injured or destroyed by fire, the plaintiff did not own
the policy of insurance upon which this suit is brought. (11)
For further answer to the complaint, the defendant says that,
at the time this suit was brought, the plaintiff was not the
owner of the policy which is the foundation of this suit,
under which it is alleged defendant adjusted plaintiff's
loss at $1,403. (12) For further answer to the complaint, the
defendant says that H. A. Feibelman, at the time of taking
out the policy named in the complaint, misrepresented to
defendant the true owner of the property alleged in the
complaint to have been destroyed by fire. (13) For further
answer to the complaint, the defendant says that the
plaintiff never made proof of loss as required by the policy
under which she sues. (14) For further answer to the second
count of the complaint, the defendant says, by the terms of
the policy sued on it is provided that no suit shall be
maintained on said policy unless commenced within 12 months
next after the fire; and defendant alleges that said count
was filed more than 12 months next after the fire, more than
12 months next after the cause of action accrued by which
plaintiff alleges the property named in the complaint was
destroyed. (15) For further answer to the complaint, the
defendant says that E. Feibelman, the plaintiff in this suit,
was not at the time of the alleged loss or damage by fire the
owner of the vinous, spirituous, and malt liquors claimed in
the complaint to have been destroyed by fire. (16) For
further answer to the complaint, the defendant says that,
under and by the terms of the policy, it is provided that
said entire policy shall be void if the interest of the
assured in the property assured be not truly stated therein.
And the defendant avers that the interest of H. A. Feibelman
in the property insured was not truly stated; by reason
whereof the said policy was void. (17) For further answer to
the complaint, the defendant says that, in the policy of
insurance sued on, it was provided, amongst other things, and
stated, that the entire policy of insurance should be void if
the insured concealed or misrepresented, in writing or
otherwise, any material fact or circumstances concerning the
insurance or the subject thereof, or if the interest of the
insured in the property be not truly stated therein. And
defendant avers that H. A. Feibelman, the person insured in
said policy, and who transferred and assigned the same to the
plaintiff, did conceal, in obtaining said insurance, a
material fact from defendant, namely, that he concealed the
fact that a bill of sale or chattel mortgage had, at the time
of the making of said insurance, been given to one or more of
the pool tables which are mentioned and set out and covered
by said policy of insurance, by said H. A. Feibelman, who
claimed to be the owner of said property at the time said
policy was issued, to the South Side Savings Bank. (18) For
further answer to the complaint, the defendant says that, in
the policy of insurance sued on, it was provided, amongst
other things, and stated, that the entire policy of insurance
should be void if the insured concealed or misrepresented, in
writing or otherwise, any material fact or circumstance
concerning the insurance or the subject thereof, or if the
interest of the insured in the property be not truly stated
therein. And defendant avers that the interest of the insured
in said property was not truly stated therein, in this: that
a bill of sale or chattel mortgage had been previously given
by H. A. Feibelman, the person to whom said policy of
insurance was issued, and who had since transferred or
assigned the same to the plaintiff, of one or more pool
tables mentioned in said policy of insurance, and covered
thereby. (19) For further answer to the complaint, defendant
says that, in the policy of insurance sued on, it was
provided, amongst other things, and stated, that the entire
policy of insurance should be void if the insured concealed
or misrepresented, in writing or otherwise, any material fact
or circumstance concerning the insurance or the subject
thereof, or if the interest of the insured in the property be
not truly stated therein, or in case of any fraud or false
swearing by insured touching any matter relating to said
insurance or the subject thereof, whether before or after a
loss under said policy. And defendant avers that the
plaintiff did on the 21st day of January, 1892, before one D.
C. Buckshaw, a notary public in and for the county of
Jefferson, state of Alabama, after said loss is alleged to
have occurred, under oath state, among other things, that
plaintiff had renewed her license (meaning thereby a license
to retail vinous, spirituous, and malt liquors, as required
by the laws of the state of Alabama) for the year 1892,
having done so on the 12th day of January, 1892. Defendant
avers that said statement was made under oath before the said
D. C. Buckshaw, a notary public, as aforesaid, and that said
statement so made was rendered to this defendant with a view
and for the purpose of collecting the insurance covered by
the policy of insurance sued on, and that the same was false,
(20) For further answer to the complaint, the defendant says
that, in the policy of insurance sued on, it was provided,
amongst other things, and stated, that the entire policy of
insurance should be void if the insured concealed or
misrepresented, in writing or otherwise, any material fact or
circumstance concerning the insurance or the subject thereof,
or if the interest of the insured in the property be not
truly stated therein, or in case of any fraud or false
swearing by...
