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the rights of nations in time of war, forms properly a part of the internal law of each separate State, deriving its origin mainly from the decisions and usages of other States? The class of cases arising in the Admi

months. Held, that a right of action arising uuder such statute could be enforced in a court of Michigan, but subject to the limitation of the statute.

ralty Court being in general so different from those ACTION by an administrator against the owners of

usually arising in the court of common law, it is not to be wondered that the rights and remedies recognized and administered in the High Court of Admiralty should materially differ from the rights and remedies in similar cases recognized and administered in the other courts.

In the case of the Milford (Swa. Ad. Rep., 362, A. D. 1858), which was an action by a foreign master against the freight for his wages, the owners appeared under protest, and among other things protested that by the law of America (to which the ship belonged) the master has no lien upon or right of action against the freight for wages earned as master.

Dr. Lushington in giving judgment referred to the great importance of the question involved, referred also to the fact that except by statute the Admiralty Court in England had no jurisdiction in respect of the master's wages, and he says (p. 366): "It was very ingeniously contended that the law of the United States formed part of the contract; but I cannot think so. The proceeding originated in this country. It is a question of remedy, not of contract at all.

"Now in this case the legality of the arrest of the freight is the whole matter in dispute, then comes the important question, whether the lex fori in the present case is to be the general maritime law as formerly used in this court, or that law as modified and extended by statutes? If the old law is to govern, it entirely puts an end to the master's case."

He then refers to the statute (the Merchant Shipping Act of 1854), and decides that he is bound to apply the remedy given by the act, and adds: "If I thought it my duty to go into the lex loci contractus I certainly would come to no conclusion one way or the other about it on the evidence now before me; but I think I am bound to apply the general law of this court as it at present exists to overrule this protest with costs and allow the case to proceed." This case was confirmed in the case of Jonathan Goodhew, Swa. Ad. Rep. 524.

If there be a general maritime law binding upon all nations, how could that law have been extended or modified by the statutes of one State without a breach of the international obligation created by the general law? It may be safely stated that many other States besides England have extended or modified the maritime law at one time existing in such States, but who ever heard of an objection thereto because the law of nations was thereby broken?

The late case in England of the Leon, 44 Law Times Rep. (N. S.) 613, has brought this subject prominently forward there. Sir Robert Phillimore makes the statement that "there is no doubt as to the existence of the general maritime law," but he does not go on to explain what it consists of, or how it is distinguished from the municipal law, which is capable of being changed at the pleasure of the legislative authority. The subject is worth discussing. Will some of the readers of the ALBANY LAW JOURNAL discuss it? Z. A. LASH.

OTTAWA, CANADA

LIMITATION OF FOREIGN STATUTE AP-
PLIES TO ACTIONS UNDER IT.
UNITED STATES CIRCUIT COURT, E. D. MICHIGAN,
OCTOBER 17, 1881.

BOYD V. CLARK.

A statute of Ontario gave an action for death by negligence, limiting the time within which it must be brought to twelve

a steamboat for the death of plaintiff's intestate, caused by the explosion of the boiler of such steamboat, which was claimed to be due to the negligence of defendants. The explosion took place within the limits of the province of Ontario. By a statute of that province an action for damages may be brought in the name of the administrator or executor of a person whose death was caused by the negligence of another against such other, if there would have been liability at common law if death had not occurred. The statute also provides that "every such action shall be commenced within twelve months after the death of the deceased person."

The declaration was demurred to on the ground that the action was not brought within twelve months after the death occurred

William I. Carpenter and Alfred Russell, for complainants.

F. H. Canfield and G. V. N. Lothrop, for defend

ants.

BROWN, D. J. It is a well-established principle of law that where a right of action is given by a State statute such right may be enforced in another State, and also that such right will be enforced according to the forms and modes of procedure in use in the latter State. Or to put it briefly, the lex loci contractus goverus the rights of parties, but the lex fori determines the remedy. This principle has been applied in a large number of cases arising upon contracts, but in the recent case of Dennick v. Railroad Co., 103 U. S. 11, it was applied to a statute of this description, where the administrator brought his action in another State. An almost unbroken series of adjudications has also established the further proposition that the time within which an action may be brought relates generally to the remedy, and must be determined by the law of the forum. Hence, it would follow that if this statute contained no limitation of time within which an action must be brought, and the time had been left to depend upon the general statutes of limitations in the province of Ontario, it is clear that we should have disregarded such statute, and permitted the plaintiff to bring this action at any time before actions of this description would be barred by the statutes of this State.

An exception to this general rule however is suggested by Mr. Justice Story, in his Conflict of Laws, section 582, of cases where the statutes of limitation or prescription of a particular country do not only extinguish the right of action, but the claim or title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period; and the parties are within the jurisdiction during the whole of that period, so that it has actually and fully operated upon the case.

"Suppose, for instance, personal property is adversely held in a State for a period beyond that prescribed by the laws of that State, and after that period has elapsed the possessor should remove into another State, which has a longer period of prescription, or is without any prescription, could the original owner assert a title there against the possessor, whose title, by the local law and the lapse of time, had become final and conclusive before the removal."

The cases of Shelby v. Guy, 11 Wheat. 361; Goodman v. Munks, 8 Port. 84 (overruled by Jones v. Jones, 18 Ala. 248); Brown v. Brown, 5 Ala. 508; and Fears v. Sykes, 35 Miss. 633, do in fact lend support to this distinction; the general tenor of these cases being to the effect that where the statute of one State declares that

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the possession of personal property for a certain period vests an absolute title, such prescription will be enforced in every other State to which the property may be removed, or wherein the question may arise. In the Pittsburg, Cin. & St. LR. Cov Ohio St. 629, it was held that undese, signed compensation for causing death lect or default, which gave such action should be on after the death of such was a condition qualifyi

tion of the surgabove quoted.vided that he purwo years tias a breac!, the proviso action, and not a mere limitation on the remedy The accident occurred on the 24th of September 1870. The suit was begun on the 23d of January, 1873. In March, 1872, the act was amended by increasing the amount for which recovery might be bad, and by omitting the limitation contained in the proviso, and also by repealing the section as it stood before. The court held that in creating or giving the right it was within the power of the Legislature to impose upon it such restrictions as were thought fit; and if restrictions were imposed they must be referred to the newly-created right itself, if the restricted language used would warrant it; for the act being in derogation of the common law, any restrictive language used in it must be construed against the right created by it. And it was also suggested that it would have been different if the act were merely remedial as to existing rights. It was further held that the plaintiff's right must be determined as the act originally stood, and was therefore subject to the restrictions contained in the proviso, and the action, not having been brought within the two years, could not be sustained. The case differs from the one under consideration only in the fact that the limitation was contained in a proviso to the section directing in whose name the action should be brought.

In the case of Eastwood v. Kennedy, 44 Md. 563, it was held that where a statute of the United States for the District of Columbia gave a claim for the recovery of usurious interest, provided suit to recover the samo be brought within one year after the payment of such interest, it would not be competent for a party to recover in Maryland after the lapse of a year, and that the courts of that State were bound to respect and apply the limitations contained in the act. The cases of Baker v. Stonebraker's Admr., 36 Mo. 349, and Huber v. Stiener, 2 Bing. (N. C.) 202, are somewhat analogous, but throw little additional light upon the question.

To this extent go the authorities, and no further. None of them are controlling here. None are precisely upon all-fours with the case under consideration. We are compelled then to deal with it to a certain extent as an original question. The Legislature of Ontario has given a right unknown to the common law, but it has seen fit to qualify this right by providing that no more than one action shall lie for the same subject-matter, and that every such action shall be commenced within twelve months after the death of a deceased person.

To permit an action to be brought upon it here after the twelve months would be giving plaintiff a right which the statute he invokes does not authorize, and to that extent nullifying the statute. In the Dennick case the Supreme Court held that the method of distribution provided by the local act, although a part of the remedy, should be pursued by the court in which the action is brought. It would seem from this that even so far as the remedy is concerned the court will not universally adopt the law of the former. The true rule I conceive to be this: that where a statute gives a right of action unknown to the common law, and either in a proviso to the section conferring the right or in a separate section, limits the time within which an action shall be brought, such limitation is

operative in any other jurisdiction wherein the plaintiff may sue.

It results from this that the action is barred by the *ute and the demurrer must be sustained. instalm

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An entry by a vendor in his memorandum book and with his signature, of the fact and terms of a sale, does not bind him as a written contract, unless signed by or for the vendee.

Where the vendee's agent, known by the vendor to be acting as such, also signs such memorandum, both parties are bound by it as a written contract.

A written contract of sale, which does not show that it was made by sample, cannot be explained or modified by proof that it was so made.

ACTION for breach of contract of sale of grain.

The opinion states the case.

Harlow Pease, for respondent.

Smith, Rogers & Frank, for appellant.

TAYLOR, J. This action was brought by the respondent to recover for a breach of contract for the purchase of 300 bushels of barley which he alleges he bought of the appellant, and which the appellant refused to deliver according to the terms of the contract. The evidence shows that at the time of the alleged sale by the appellant to the respondent, the appellant, who was a farmer, had in his possession on his farm about 300 bushels of barley which he desired to sell, and that this fact was made known to the respondent; that the father of the appellant, acting as his agent, saw the respondent at his place of business, some distance from the place where the barley was, and made a sale of the same to the respondent. Upon such sale the respondent paid to the appellant's agent the sum of $25 upon the contract, which was received by the appellant from his agent. Upon making the sale the following writing was made and signed by the respondent, and by the father as agent of the appellant:

"Bought of Cass Whipple about 300 bushels of barley, at 65 cents for 50 pounds, to be delivered by the fifteenth of September next. Paid on same $25. "A. WHIPPLE. "S. M. WIENER.

"WATERLOO, August 24, 1880."

Upon the trial it was shown that the appellant, C. H. Whipple, delivered one load of barley to the respondent, which was accepted and paid for, and that he afterward offered to deliver two loads more, which the respondent refused to accept, alleging that it was not of the quality which he bought; the respondent claiming that he bought the barley by sample, and that the barley tendered by the appellant was not as good a quality as the sample.

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The learned counsel for the appellant alleges as error that the county court permitted the respondent on the trial to give parol evidence in show that the RIOLLA sale of the barley was by appellant objected to such evidence of Dondent on the trial, and also the evidecy to show that the barley tendered and with the priv t of as good a quality as the sample. ving the annual sadtract for assura mitted against his objection. d forfeiture fo judge instructed the jury that if they evidence that it was a sale by sample, a premiums. In poli

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tendered by appellant was of a quality in.. he essence

sample, then the respondent was entitled t

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but if they found it was not a sale by sample, then the appellant was entitled to their verdict. The appellant excepted to this instruction.

The case presents this question: Was it competent for the plaintiff, after having made and signe hose writing above set forth, to show by par at the pûr- |' chase was a purchase by sample? The respondent testified that after he made the purchase of the agent of the appellant he paid the $25, and then took out his memorandum book and wrote the above-quoted memorandum therein, which was signed by himself and the agent of the appellant. The respondent kept the memorandum in his possession. On the part of the learned counsel for the appellant it is urged that this writing is in itself a perfect contract, which shows on its face that the respondent purchased of the appellant 300 bushels of barley at a price named, to be delivered within a specified time; and that the same being signed by the agent of the appellant, although in the name of the agent, it bound the appellant to deliver the barley according to its terms. We are inclined to think the question of the admissibility of the parol evidence showing the terms of the sale depends upon the question whether the appellant was bound by the terms of the writing. If the appellant were not bound by its terms, then the respondent would not be. If the respondent, after making the contract of purchase, had made fan entry of the terms of the sale in his memorandum book for the mere purpose of aiding his memory in regard to the matter, and for his own convenience, without requiring the agent of the appellant to sign the same, such memorandum would not constitute the contract between the parties, and would bind neither. It would have no greater effect as proof of the contract in fact made by the parties than any other entry made by a party to which he might refer for the purpose of refreshing his memory as to the terms of the transaction. The appellant would not be bound by such an entry, because made without his being called upon to consent to its terms, and the respondent would not be bound, because it would be held to be a mere memorandum of the transaction in aid of his memory, and not intended as binding him to its exact terms. The appellant would be at liberty to insist that the parol contract was the only contract he had made. The writing made, without his assent thereto, by the other party could in no way bind him, and consequently would not bind the other contracting party. If in such case the appellant insisted the parol contract was in fact the same as the writing made by the respondent in his memorandum book, such memorandum could be used as an admission of the respondent to support his version of the contract, and to that extent only would it be evidence for him.

The effect of a memorandum of sale, made without the assent or authority of all the parties to the contract, is illustrated by the decisions of the courts upon the sufficiency of such unauthorized memorandum to satisfy the statute of frauds. It has been often held that the party not assenting to the making of such memorandum is not bound thereby, and may prove the terms of the parol contract for the very purpose of showing that the memorandum does not state the real contract between the parties, and so defeat a recovery upon it under the statute of frauds for want of a sufficient note or memorandum thereof in writing. See Benj. Sales (in ed.), §§ 209, 212, and notes. It is evident thaTION Osiple of these cases can have no applicat PLIES TOere it is shown that both parties h o and signed the writing. It is well NITED STATES authorities that where a writing all the elements of a valid agreement one part and to buy on the other, so far ag sets out, either in express terms or by A statutet, the conditions of the contract, it cannot lind by parol evidence.

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It is said on the part of the learned counsel for the respondent that this writing does not bind the appellant because his agent signed his own name and not the name of his principal, and so it should not and does not bind the respondent. It is also said that the caused by went signed the memorandum as a mere ack, which was cif the receipt of the $25, and not as assentilants. The expto its terms as an agreement to sell. The vince of Ontat clear that when a persons acts for a principaan for da fact is known to the party dealing with him, his contract, though executed in bis own name, binds his principal equally as though signed in the name of such principal, and that parol evidence is admissible to show the fact of his agency in order to charge the principal, notwithstanding the writing is executed by the agent in his own name. Benj. Sales, § 236; Trueman v. Loder, 11 Ad. & E. 587-594; Stowell v. Eldred, 39 Wis. 615; Tainter v. Prendergrass, 3 Hill, 72; Higgins v. Senior, 8 M. & W. 840; Huntington v. Knox, 7 Cush. 371; Story on Agency, § 40. Many other cases might be cited to the same point. These cases go so far as to hold that such signature of the agent is good under the statute of frauds. The signature of the agent in such case is deemed the signature of the principal, and is a sufficient signing to take the case out of the statute.

In an action upon this writing by the respondent against the appellant, it seems to us clear that the appellant would be bound by its terms. Had the price of barley advanced he would be bound to deliver according to its terms for the price fixed therein. In our opinion the writing signed by the vendor admits that the vendee, whose name is also signed thereto, bought of him 300 bushels of barley at 65 cents per 50 pounds, to be delivered as therein stated, and that the vendee had paid him $25 on the contract price. All these matters are made clear by the writing itself in express terms. It is equally clear that from the terms of the writing the law implies that payment was to be made on delivery, and probably that barley should be merchantable; but for the purposes of this case it is unnecessary to determine whether the merchantable quality of the barley to be delivered is a legal implication from the terms of the contract or not. It is enough for the determination of this case to know that there is neither an express statement in the writing, nor a legal implication from what is stated, that the barley was sold by sample, or that it should be of the quality of a sample furnished to the buyer at the time of the contract. This court has repeatedly held that where there is a written instrument binding upon both of the parties thereto, which in itself is a complete contract capable of being understood and enforced, parol evidence cannot be resorted to to change its express provisions or their legal effect. In Charles v. Denis, 42 Wis. 56, it was held that one who indorses a note in blank, without any qualification to such indorsement in writing, cannot show by parol any matter which varies or contradicts the legal liability which the law attaches to such indorsement. In that case the indorser offered to show that when he indorsed the note it was understood and agreed between the parties that he should not be liable upon such indorsement, and that it was simply made to transfer the title to the

note.

The written contract being plain and unequivocal, no parol evidence can be given to explain or change its terms. Peet v. Railroad Co., 19 Wis. 118, and 20 id. 594. These cases involve the construction of a contract in the shape of a receipt given by the railroad company for freight agreed to be transported by it. It was held that by the terms of the receipt the railroad company agreed to transport to and deliver in New York, and it could not show by parol that it was agreed that it should deliver the goods at the terminus of its road in Chicago to another carrier, to be transported

from there to New York by such other carrier. The case of Meyer v. Evereth, 4 Camp. 22, was in all respects like the case at bar. The plaintiff had bought "50 hogsheads of Hambro sugar loaves at 155s., free on board a British ship; acceptance, 90 days." The writing in the case was what is called a bought note, signed by the defendant, and the description of the sugar bought, with price, etc., was as above quoted. In his complaint the plaintiff alleged that he purchased the sugar by sample; and alleged, as a breach of the contract, that the sugar delivered was not as good as the sample. Lord Ellenborough nonsuited the plaintiff on the trial, giving the following reasons: "It was no part of the contract the sugar should be equal to the sample. Where goods are sold in this way, I think evidence might be admissible to show that at the time of the sale a sample was fraudulently exhibited to deceive the buyers, whereby the plaintiff had been induced to purchase the commodity, which turned out of greatly inferior quality and value. But when the sale note is silent as to the sample, I cannot permit it to be incorporated into the contract. This would be contrary to Meres v. Ansell, 3 Wilson, 275, and would amount to an admission of parol evidence to contradict a written document."

Gardner v. Gray, 4 Camp. 144, was in all respects like Meyer v. Evereth, and a like decision was made by the same learned judge. Although these are nisi prius cases, they are considered good law in England, and are quoted as authority in Benj. Sales (3d ed.), § 650. These decisions are sustained upon the well-settled rule that parol evidence cannot be received to contradict, vary or add to the written contract, perfect in itself. This court has adhered strictly to the rule that a written contract cannot be varied or changed by parol proof. See Whiting v. Gould, 2 Wis. 552; Lowber v. Connit, 36 id. 176; Hubbard v. Marshall, 50 id. 322; Schultz v. Coon, 51 id. 416. In the last case cited the written contract of sale was hardly as definite as the one proved in the case at bar, yet this court held that it was evidently a contract of sale, and parol evidence could.not be given to vary or contradict its terms.

It appearing that the contract was in writing, and such written contract failing to show that the sale was by sample, it was clearly error to permit the plaintiff to show by parol that the sale was in fact made by sample. Upon the competent evidence given upon the trial, the question whether the sale was by sample or otherwise was immaterial, and should not have been submitted to the jury.

The judgment of the county court is reversed and the cause remanded for a new trial.

The policy was in the usual form. The consideration for its issue was the payment to the insurance company by Caroline Klein of an annual premium of one hundred and seventy-three dollars, in semi-annual installments of eighty-six dollars and fifty cents each, on the first day of September and the first day of March of every year during the life of Frederick W. Klein.

The policy contained the following provision: “And it is also understood and agreed by the within assured to be the true intent and meaning hereof that * * * in case the said Caroline Klein shall not pay the said premium on or before the several days herein mentioned for the payment thereof with any interest that may be due thereon, then and in every such case the said company shall not be liable for the payment of the sum assured or any part thereof, and this policy shall cease and determine."

The premiums were punctually paid until March, 1871, when default was made in the payment of the semi-annual installment which matured on the first day of that month, and it remained unpaid until the death of Frederick W. Klein, which occurred March 18, 1871. The agent of the insurance company, after proof of the death of Klein, offered to pay Caroline Klein the surrender value of the policy. She declined to accept this or any sum less than the amount of the insurance. The company then insisted upon the absolute forfeiture of the policy, according to its terms.

Thereupon the appellaut filed the bill in this case. It alleged as the ground of relief that the policy was taken out by Frederick W. Klein without the knowl edge of his wife, and that she had received no information of its terms or conditions until after the death of her husband; that he was taken down by the illness of which he died about February 1; that for about twenty days prior to March 1, and thence up to the time of his death he was, in consequence of his sickness, deranged in mind and incapable of attending to any matter of business whatever, and for that reason and that alone failed to pay the premium when it was due, and that the appellant failed to pay it because she was ignorant of the existence of the policy aud of its terms.

The prayer of the bill was as follows: "That the said New York Life Insurance Company may be prevented from insisting upon and taking advantage of the alleged forfeiture of said policy of insurance, and that your oratrix may be relieved from said alleged default upon her part, and the accidental default of the said Frederick W. Klein in the non-payment of said semi-annual premium maturing March 1, 1871, and that the said New York Life Insurance Company may be decreed to pay to your oratrix the said sum of five thousand dollars," etc. The answer of the company denied its

INSANITY AS GROUND OF RELIEF FROM liability upon the policy of insurance, aud insisted that

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the contract of insurance had ceased and determined by reason of the non-payment of the premium due March 1, 1871, and denied the equity of the bill. Upon final hearing in the Circuit Court the bill was dismissed and the case has been brought to this court for review by the appeal of the complainant.

Conceding, for the sake of argument, that the case made by the bill is sustained by the evidence, the question is presented whether upon the facts the appellant was entitled to the relief prayed for. In the case of New York Life Ins. Co. v. Stratham, 93 U. S. 24, it was held by this court, Mr. Justice Bradley delivering its opinion, that a life insurance policy "is not a contract of insurance for a single year, with the privilege of renewal from year to year by paying the annual premium, but that it is an entire contract for assurance for life, subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums.' But in the same case the court further said: "In policies of life insurance time is material and of the essence of the contract, and non-payment at the day involves

absolute forfeiture, if such be the terms of the contract."

While conceding this to be the rule which would apply if an action at law were brought upon the policy, the appellant insists that she is entitled to be relieved in equity against a forfeiture, by reason of the excuses for non-payment of the premium set out in the bill, and this contention raises the sole question in this case. We cannot accede to the view of the appellant. Where a penalty or forfeiture is inserted in a contract merely to secure the performance or enjoyment of a collateral object, the latter is considered as the principal intent of the instrument, and the penalty is deemed only as accessory. Sloman v. Walter, 1 Bro. Ch. 419; Sanders v. Pope, 12 Ves. 282; Davis v. West, id. 475; Skinner v. Dayton, 2 Johns. Ch. 535. But in every such case the test by which to ascertain whether relief can or cannot be had in equity, is to consider whether compensation can or cannot be made.

In Rose v. Rose, Amb. 332, Lord Hardwicke laid down the rule thus: "Equity will relieve against all penalties whatsoever against non-payment of money at a day certain, against forfeitures of copyholds, but they are all cases where the court can do it with safety to the other party, for if the court cannot put him in as 'good condition as if the agreement had been performed, the court will not relieve." A life insurance

policy usually stipulates, first, for the payment of premiums; second, for their payment on a day certain; and third, for the forfeiture of the policy in default of punctual payment. Such are the provisions of the policy which is the basis of this suit. Each of these provisions stands on precisely the same footing. If the payment of the premiums and their payment on the day they fall due are of the essence of the contract, so is the stipulation for the release of the company from liability in default of punctual payment. No compensation can be made a life insurance company for the general want of punctuality among its patrons.

In was said in New York Life Ins. Co. v. Stratham, supra, that "promptness of payment is essential in the business of life insurance. All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipt of premiums when due, but upon compounding interest upon them. It is on this basis that they are enabled to offer insurance at the favorable rates they do. Forfeiture for non-payment is a necessary means of protecting themselves from embarrassment. Delinquency cannot be tolerated or redeemed except at the option of the company."

If the insured can neglect payment at maturity and yet suffer no loss or forfeiture, premiums will not be punctually paid. The companies must have some efficient means of enforcing punctuality. Hence their contracts usually provide for the forfeiture of the policy upon default of prompt payment of the premiums. If they are not allowed to enforce this forfeiture they are deprived of the means which they have reserved by their contract of compelling the parties insured to meet their engagements. The provision therefore for the release of the company from liability on a failure of the insured to pay the premiums when due is of the very essence and substance of the contract of life insurance. To hold the company to its promise to pay the insurance, notwithstanding the default of the insured in making punctual payment of the premiums, is to destroy the very substance of the contract. This a court of equity cannot do. Wheeler v. Conn. Mut. Ins. Co., 82 N. Y. 543; see also, the opinion of Judge Gholson in Robert v. New England Life Ins. Co., 1 Dis. 355.

It might as well undertake to release the insured from the payment of premiums altogether as to relieve him from forfeiture of his policy in default of punctual

payment. The company is as much entitled to the benefit of oue stipulation as the other, because both are necessary to enable it to keep its own obligations. In a contract of life insurance the insurer and insured both take risks. The insurance company is bound to pay the entire insurance money, even though the party whose life is insured dies the day after the execution of the policy, and after the payment of but a single premium. The assured assumes the risk of paying premiums during the life on which the insurauce is taken, even though their aggregate amount should exceed the insurance money. The assured also takes the risk of the forfeiture of his policy if the premiums are not paid on the day they fall due.

The insurance company has the same claim to be relieved in equity from loss resulting from risks assumed by it as the assured has from loss consequent on the risks assumed by him. Neither has any such right. The bill is therefore based on a misconception of the powers of a court of equity in such cases.

There is another answer to the case made by the bill. The engagement of the insurance company was with Caroline Klein, and not with Frederick W. Klein. It entered into no contract with the latter. It agreed to pay Caroline Klein the insurance, provided she paid with punctuality the premiums. She was never incapacitated from making payment. The alleged fact that she had no knowledge of the existence and terms of the policy does not relieve her default. If the fact be true, her ignorance resulted from the neglect of her husband, who in respect to this contract of insurance was her agent, in not informing her about the insurance upon his life and the terms of the policy. The bill is therefore an effort by the appellant to obtain relief in equity against the appellee from the consequences of the carelessness or neglect of her own agent.

We are of opinion that the decree of the Circuit Court is right and should be affirmed.

ALTERATION OF BANK NOTE - RIGHTS OF HOLDER FOR VALUE.

ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, JULY 4, 1881.

SUFFELL V. BANK OF ENGLAND.

An alteration in the number of a note of the Bank of England is not such a sufficient and material alteration of the note as to enable the bank to refuse payment of the same to a bona fide purchaser for value without notice.

F

URTHER CONSIDERATION. This case was tried before Lord Coleridge, C. J., and a special jury at Guildhall on the 5th April, 1881. The material facts were admitted, and the jury were discharged, and the point of law reserved for further consideration. The pleadings in the action were as follows:

Claim. 1. The plaintiff is a money changer, carrying on business in Brussels.

2. Upon the 10th Jan., 1880, the plaintiff purchased from a person ten notes issued by the defendants, dated the 3d Sept., 1878, for 201. each, payable to bearer on demand, and also six notes issued by the defendants, dated the 2d July, 1878, for 501. each, payable to bearer on demand.

3. The plaintiff has demanded from the defendants payment of the notes aforesaid, but the defendants have refused to pay the same.

Defense. 1. The defendants admit that on the 20th April, 1880, when the notes were presented for payment, they refused and still refuse, under the circumstances hereinafter appearing, to pay to the plaintiff the alleged value of the notes sued upon, or any of

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