tion, unless that effect is destroyed by distinct reservation at the time that the conduct shall not so operate. Ins. Co. v. French, 4 Big. 369; S. C., on appeal, 30 Ohio, 247, is an example of these cases. See, also, Ins. Co. v. Warner, 80 Ill.. 410; Ins. Co. v. Anderson, 77 Ill. 384; Bouton v. Ins. Co. 25 Conn. 542; Jollife v. Ins. Co. 39 Wise, 119; Seamans v. Ins. Co. 3 FED. REP. 325; Young v. Ins. Co. 4 Big. 5; S. C. 2 Sawy. 325, which was reversed on appeal, because the supreme court took a different view of the facts. Ins. Co. v. Young, 23 Wall. 85. These cases were relied on by the plaintiffs to show that the company not having claimed a forfeiture, by giving notice of it, none had occurred; or, at least, it had been, on the facts of this case, waived. It is plain, however, that the clause under consideration protects this. policy from the principle of these cases so far as they relate to a requirement of notice, and that it is self-forfeiting without such notice. The language of the clause itself makes it clear that it does not refer to notice required by the commercial law to parties to the draft, but notice to "any party or parties interested herein"-that is, in the policy; and it means that the forfeiture shall enure without notice to the plaintiffs, and I so charged the jury.

It would be interesting, perhaps, to follow up the effect of the holding of the court in this case in its application to other situations of the parties not shown by the proot; as, for example, if the draft had been negotiated by the company and the holder had neglected to present, or if it had been accepted and the acceptors had failed to pay. But it is not necessary to test the soundness of the charge by such means. It will be

found on thoughtful consideration, I think, to be consistent with any situation that is possible, to hold that this company came, as to this draft, under all the obligations of any other holder of such paper; and the minor points suggested in the argument I need not consider.

One of the learned counsel makes a plausible and forcible argument against the charge by insisting that the draft was not negotiable under the law merchant. He urged that the

draft was not payable absolutely, and the drawer had an option to discontinue the policy by refusing payment. Perhaps the drawer of this draft had no option to discontinue the policy by refusing to pay the premium itself. He was not in terms bound to pay it. It was the contract of his children, and, while he may have refused to keep it up for them, they could by other means have continued it. The option was theirs, not his. But certainly, in his capacity as drawer of this draft, he had no option about it. If the necessary steps to charge him had been taken he would have been liable and the company had the option to collect it, or, on non-payment, surrender it and rely on the condition for forfeiture. If it had been accepted, or otherwise secured, as by a mortgage, the company, having fixed the liability of the parties, may have chosen to waive the forfeiture and collect the draft; and, as to all the parties to it, the promise was unconditional. That it was negotiable is established by authority. Jarman v. Ins. Co. 3 Cent. Law. J. 303; S. C. 22 Int. Rev. Rec. 162; Kirk v. Ins. Co. 39 Wis. 138; Williams v. Ins. Co. 19 Mich. 451; Wall v. Ins. Co. 36 N. Y. 157; Roehner v. Ins. Co. supra, at page 165 of 63 N. Y.; 1 Daniell, Neg. Inst. (2d Ed.) § 52; Id. §§ 35-44; Bank of Sherman v. Apperson, 4 FED. REP. 25.

The Jarman Case, supra, by the very able judge of the eastern district. of Michigan, sitting in this court, is, on principle, conclusive in favor of the charge given by the court in this case, and so are the others cited; because, if this draft, or the note in that case, be negotiable, so that it would be entitled to grace, (if it had not been waived,) there is no reason why it is not subject to all the other incidents and rules of the commercial law, as the court held it to be. On the whole, I am satisfied the case was correctly tried, and that the verdict is right.

Motion overruled.

MICOU, Adm'r, etc., v. LAMAR, Ex'r, etc.

(Circuit Court, S. D. New York. May 5, 1881.)

1. GUARDIAN-POSSESSION OF PROPERTY IN ANOTHER STATE-PAST-DUE COUPONS-VALUE-INTEREST-ANNUAL RESTS-ACCOUNTING BEFORE AND AFTER TERMINATION OF GUARDIANSHIP.

It is the duty of a guardian to take into his possession, so far as he is able, the estate of his ward, wheresoever it may be; hence, where the property consisted of shares of stock in a Georgia bank, a transfer of which he could have procured to himself, and it did not appear that the guardian had taken the steps required by the laws of that state to enable a foreign guardian to remove property within the state belonging to his ward, held, on the evidence, -the burden of proof being upon the guardian to show that he could not get possession of the property and invest it as required by the terms of his appointment, that the defendant was properly charged in the accounting with the value of the property.

Where the guardian transferred to his newly-appointed successor railroad and city bonds, together with the past-due coupons accompanying them, and it was agreed that the bonds were worth at the time a certain per cent. of their face value, held, that this was prima facie evidence that the over-due coupons were worth an equal percentage of their face value.

Where the wards rejected the investments made by the guardian, and demanded in money the equivalent of a proper investment, the rate of interest with which he is to be charged during the period of the guardianship is that which, with proper and safe investments, he might have realized, and therefore less than the current legal rate.

Hence, where the guardianship terminated long before the legal rate of interest in New York state was changed from 7 to 6 per cent., a guardian accounting in this court should be charged with interest during the period of the guardianship at the rate of 6 per cent.,-1 per cent. less than the current rate,-the account to be taken with annual rests. King v. Talbot, 40 N. Y. 96.

From the termination of the guardianship, however, the guardian's liability was simply to pay over presently a certain sum of money, not to invest or keep it invested.

Therefore, there is no reason for computing the account with annual rests after the termination of the guardianship, nor for charging a less rate than the legal rate of interest in this state, which was 7 per cent. down to January 1, 1880, and 6 per cent. from that date to the present time.

George C. Holt, for complainant.
C. C. Beaman, Jr., for defendant.

CHOATE, D. J. In this case, the complainant having a decree for an accounting, the case comes up again upon exceptions to the master's report.*

The first point raised by the defendant is that the master improperly charged the defendant, in the case of each of the infants, with the value of one-third of 10 shares in the stock of the Mechanics' Bank of Augusta, in the state of Georgia. The evidence is that these shares formerly belonged to W. W. Sims, the father of the infants, who died in 1850; and that at the time of the appointment of defendant's testator as guardian they stood on the books of the bank in the name of Mrs. Abercrombie, the widow of said W. W. Sims, as his administratrix. From February, 1856, to February, 1859, defendant's testator, as guardian of each of the infants, received from the bank one-third of the dividends on these 10 shares, and thereafter, from the death of the mother, Mrs. Abercrombie, until the war, when the stock became worthless, he received from the bank, as guardian of each of the infants, one-half of said dividends. It appears by a memorandum in the guardian's account that in January, 1856, the guardian applied to the bank for a transfer to him, as guardian of the infants, of the two-thirds of the 10 shares, but the bank, though willing to pay the dividends and continuing thereafter to do so, as above stated, refused to make a transfer of the stock itself. I think it is a proper inference from this evidence that the real beneficial interest in onethird of these 10 shares was in each of the infants after the death of their father. The great lapse of time since his death, and the absence of any evidence that the property was needed for payment of his debts, warrant the conclusion that the guardian could, upon requesting it of Mrs. Abercrombie, the administratrix, have had the estate so far settled as to have procured a transfer of the infants' interest to him as guardian. It is argued that the guardian was under no obli gation to reduce property of this kind belonging to his ward in another state to his possession; that the office of guardian. is local, and as to property out of the state, under whose laws

*See 1 FED. REP. 14.

he holds his appointment, he is only chargeable with that of which he actually takes possession. I cannot subscribe to this doctrine. I think it is the duty of the guardian to take into his possession, so far as he is able, the estate of his ward, whoever it may be, and that he is not to be justified in abandoning any part of it because it happens to be outside of the jurisdiction of the state wherein he is appointed. It is objected, however, that the laws of Georgia interposed an obstacle to prevent the guardian from reducing this stock to possession and removing it from the state, or selling it and investing the proceeds as required by the law of New York. There was a short period, from the spring of 1859 to January, 1860, when the infants resided in Georgia with their relatives. After that they resided in Alabama, and before that, from shortly after the appointment of the guardian till the spring of 1852, when their mother, Mrs. Abercrombie, died, in Connecticut with their mother. It appears that by the law of Georgia a foreign guardian cannot remove property within the state belonging to his ward without the consent of the ordinary. The matter appears to be committed to the discretion of the ordinary. I cannot conceive of any reason why the ordinary should refuse his consent, unless it were during the brief period that the wards resided in that state. It does not appear that in this case the guardian ever applied for his consent. And, the burden being upon the guardian to show that he could not get possession of the property and invest it as required by the terms of his appointment, I think the defendant has failed to sustain that burden, or to show that there was any obstacle growing out of the laws of Georgia which prevented his getting possession of the stock and investing it properly. It is also claimed by defendant that he should be allowed a deduction from the value of this stock for the expense that would be necessarily incurred in reducing it to possession. There is no proof what the expense would be, or that it would be more than nominal. It is not to be presumed that the mother of the wards would have interposed any difficulties, or that the guardian would have been charged with any expenses in ob