Gambar halaman


of the elder female fixes upon yon unoffending The plaintiff in error being under arrest and about youth; she summons him to her side, and the inves- to be tried for the offense of having written and sent tigation commences. Her first demand is for the

through the post-office a threatening letter for the man who wrote out that,” and as it is evident that

purpose of extorting money, and the court having

been informed by the district attorney iu writing that nothing short of the production of the original will

there was a probability that the prisoner was then inand its collation on the spot, with the transcript, sane, and thereby incapacitated to act for herself, and will satisfy her doubts, we leave poor Jackson in ought not, for that reason, to be then put upon her her eiutches, reflecting that after all a berth in the trial, and praying that an inquisition into her mental civil service may have its drawbacks. Never did

condition be then and there ordered and had by the

court in a summary manner, either by a jury or other. we visit this well-hidden office without finding

wise, as to the said court might seem meet, as prothere a more or less numerous gathering of legacy vided by Rev. Stat., $ 4700, the court did then and hunters, but how they get there remains a mystery there order an investigation as prayed for in said apOther public offices lie open and conspicuous to the plication; whereupon a jury was impaneled and sworn passer-by, and are never invaded by the profane

for the purpose, and the investigation thereupon pro

ceeded, and at the close thereof the jury, under the feet of the laity. This one, huddled away down a

charge of the court, found and rendered a verdict that pair of back stairs in an obscure corner of an inner the prisoner was then insane. Thereupon the trial of quadrangle, seeks privacy in vain.

the offense was, on motion of the district attorney, iuAnd now, at last, for Westminster. We


the definitely postponed, and the court thereupon ordered Horse Guards with its glittering troopers, the less

that the prisoner be confined in one of the hospitals

for the insane, as provided by law, to wit, the Milwauobtrusive Admiralty, and the splendid mass of the

kee Insane Asylum at Wauwatosa, there to be held in new Treasury, and crossing the grand old Hall, the custody and care of the superintendent, as the law with its usual throng of applewomen, witnesses, directed; and to be received, confined, and treated by lawyers and policemen, enter the Court of Ex- such superintendent as other insane persons are kept chequer, where Kelly, last of the chief barons, pre

and treated therein; and upon her recovery from such

insanity to notify the sheriff thereof, and thereupou sides, patriarchal and garrulous. You will notice

deliver her to him to be dealt with according to law. that the learned gentleman who happens to be ad- To review that order this writ of error is brought. dressing the court at the present moment occupies David W. Small, for plaintiff in error. a little pen all to himself, instead of being mixed

W. C. Williams, district attorney, for defendant in with the general throng of his compeers.

He is Mr. Webster, the present "tubman" of the court,

CASSODAY, J. Can such an order be reviewed by and by right of his mysterious title occupies his

this court on writ of error? The learned counsel for “tub." Have the Judicature Acts swept away the plaintiff in error has made no reference to the even this old custom?

question, and no authorities have been cited upon it in Our object being to see the list for to-morrow,

behalf of the State. At common law, such writ could which is not yet ready, we have half an hour to

only be brought upon a final judgment, or an award in

the nature of a final judgment. Finch v. Ranow, 1 Ld. spare, and where can we spend it better than in the Raym. 610; S. C., 3 Salk. 145; Rex v. Dublin, 1 Strange, Abbey, just across the street? In three minutes we 536; Jaques v. Cesar, 1 Saund, 101, note; Samuel v. epitomize many a great lawyer's career passing Judin, 6 East, 336; Tyler v. Hamersly, 44 Coun. 409 ; 2 from Westminster Hall through St. Stephen's.into

Burrill, Pr. 132 ; Hill v. Bloomer, 1 Pin. 283; Merril v. the Abbey, and con for the hundredth time the fa

Rollin, id. 411; Dean v. Williams, 2 id. 91; Wheeler v.

Scott, 3 Wis. 362; Paine v. Chase, 14 id. 653; Jenks v. miliar inscriptions. A half hour quickly passes.

State, 16 id. 333; Eaton v. Gillett, id. 546; Crilley v. Returning to the court we find the cause list ready, State, 20 id. 244; 1 Archb. Crim. Pr. & Pl. 623, *199. A and resigning ourselves to the sulphurous discom- writ of error does not lie to review an order. Paine fort of the underground railway we are soon back

v. Chase, supra; Jenks v. State, supra; Eaton v. Gillett, in the city, where the gas-lights gleam confusedly supra; Shannon v. State, 18 Wis. 604.' It does not ex

tend to a decree or judgment in an equity ease. Delathrough the fast thickening fog. An hour's letter plaine v. Madison, 7 Wis. 406; Howes v. Buckingham, writing finishes the office day, and we make tracks 13 id. 442; Costello v. Burch, 25 id. 477. Such was the bomeward to resume with what spirit we can our writ which was preserved by the Constitution. Secstudy of Haynes' Equity.”

tion 21, art. 1. The statute has not enlarged the funcA. B. M.

tions of the writ. Delaplaine v. Madison, supra; Smith v. Thorp, ✓ Wis. 514; Howes v. Buckingham,


In fact, the statute expressly provides that writs of

error in criminal cases may issue, and bills of excepWISCONSIN SUPREME COURT, MAY 15, 1884.

tions may be served, noticed, and settled, in the man

ner and within the time provided by law in civil cases. CROCKER V. STATE.*

Rev. Stat., 84724. And in civil cases it provides that A writ of error may be issued only to review final judgments writs of error may issue to review final judgments in in actions triable by jury as matter of right.

aotions triable by jury, except actions for divorce. Id. Under Rov. Stat. 1878, 8 4700, the right to trial by jury does $ 3043. not extend to the determination of the insanity of a party,

It seems to follow that the order in question being and a writ of error does not lie to review the same. made before any “final judgment" had been pro"RRO

nounced, cannot be reviewed upon this writ of error. The same is true for another reason, even if the order

made upon this collateral issue be oonstrued as in the *S. C., 19N. W. Rop. 435.

nature of a final judgment. The statutory provision

ERROR to Circuit Court, Milwaukee county.

that the writ “may issue to review final judgment in jury or otherwise, “as it deems most proper." Unactions triable by jury," clearly means actions so tri- doubtedly it may, in a proper case, make such inquisiable as a matter of right. Sections 5,7, art. 1. Since tiou by a medical commissioner or otherwise. The the constitutional right must "remain inviolate," it method of making inquisition is left to the discretion cannot be taken away in any class of cases where it ex- of the court. So it appears that a trial by jury of such isted when the Constitution was adopted. Norva' v. preliminary and collateral issue was not a matter of Rice, 2 Wis. 29; Gaston v. Babcock, 6 id. 503; Stilwel strict right prior to the Constitution. “There are," v. Kellogg, 14 id. 461; Mead v. Walker, 17 id. 189; Con. said Sir Mathew Hale, “two sorts of trials of idiocy, Ins. Co. v. Cross, 18 id. 109; Dane Co. v. Dunning, 20 maduess, or lupacy; the first, in order to the commitid. 210; Bennett v. State, 57 id. 69; S. C., 14 N. W. Rep. ment or custody of the persou and his estate, which 912. It has been held in several of the States that this belongs to the king, either to his own use and benefit, right of trial by jury does not extend to proceedings as in case of idiocy; or to the use of the party, in case to commit infants to the industrial school or house of of accidental madness or lunaoy; and in order hererefuge. Ex parte Crouse, 4 Wbart. 9; Prescott v. State, unto there issues a writ or commission to the sheriff 19 Obio St. 184; Ex parte Ah Peen, 51 Cal. 280; In re or escheator, or particular commissioners, both by Ferrier, 103 Ill. 367. See Milwaukee 1. S. v. Milwaukee their own inspection and by inquisition to inquire, Co., 40 Wis. 328. Nor does it extend to the determina and return their inquisition into chancery; and theretion of the mere insanity of a party. Gaston v. Bab- upon a grant or commitment of the party and his escock, supra; Shroyer y. Richmond, 16 Ohio St. 455; tate ensues; and in case the party or his friends find Hagany v. Cohnen, 29 id. 82.

themselves injured by the finding him a luuatic or At common law, if a person, after committing a idiot, a special writ may issue to bring the party before crime, became insane, he was not arraigned during his the chancellor, or before the king, to be inspected." insanity, but was remitted to prisou until such inca- 1 Hale P. C. 33. Certainly the chancellor had jurispacity was removed. The same was true when he be- diction to grant the writ or commission of lunacy. came insane after his plea of not guilty and before Lord Ely's case, 1 Ridg. Parl. Cas. 578; Ridgway v. trial. If however there was any doubt as to whether Darwin, 8 Ves. Jr. 65; In re Monahan, 9 Ir. Eq. 253. It the party was insane, the question was usually tried was issued as “the prerogative of the crown” (Ex parte in a summary way by a jury. 1 Hale P. C. 34, 35; 4 Barnsley, 3 Atk. 171), “ the political father and guardBI. 24, 25; 1 Archb. Crim. Pr. & Pl. 22, 23; Com. v. ian of all his subjects." Lord Ely's case, supra. Hence Braley, 1 Mass. 103; Com. v. Hathaway, 13 id. 299; where the return to the commission was unsatisfacFreeman v. People, 4 Denio, 19, 20; The Queen v. Goode, tory to the chancellor, he would quash the same and 7 Adol. & E. 536. In such cases however it was 'iu the issue a new commission. Ex parte Roberts, 3 Atk. 5; discretion of the court whether to try the preliminary Ex parte Barnsley, supra; Ex parte Cranmer, 12 Ves. question of insanity by a jury, or to adopt some other Jr. 445; Ex purte Atkinson, 1 Jac. 333; In re Holmes, 4 mode. Id.

Russ. 182; In re Bruges, 1 Mylue & C. 278. “It is a In The Queen v. Goode, supra, the attorney general practice by no means uucommon, in cases of lanacy," prayed an inquest, which was immediately granted, said Lord Eldon, “ that wben the lunatio cannut be and the investigation was proceeding in a summary removed to the jury, and it is inconvenient for the manner, when Lord Denman, C. J., stopped the prose- jury to go to the lunatio, one or two of the jury excution from calling further witnesses, and declared, amine the lunatic, and report their observations to the in effect, that it was unnecessary to ask the prisoner rest." Ex parte Smith, 1 Swanst. 7. The same cauwhether he wished to cross-examine the witnesses, or tious chancellor held that the issuing of the commisto say or prove any thing for himself, and virtually sion was in the discretion of the court. Ex parte Tomcharged the jury to return a verdict of insanity, which linson, 1 Ves. & B. 57. they did. Thereupon the prisoner was ordered into We are not called upon to determine whether a party safe custody until the queen's pleasure should be who is aggrieved by being wrougfully found to be a known.

lunatic has any remedy by way of traversing the inOur statute has adopted substantially the same prac- quisition, as formerly (Ex parte Wragg, 5 Ves. Jr. 450; tice. It provides that when any person is indicted or id. 833; Sherwood v. Sanderson, 19 id. 280; In re Bridge, informed against for any offense, if the court shall be 6 Jur. 69), or by appeal or otherwise. It is enough to informed in any manner that there is a probability know that a writ of error will not lie. that such accused person is, at the time of his trial, From what has been said, and the fact that writs of insane, and thereby incapacitated to act for himself, error are only authorized to review final judgments in the court shall, in a summary manner, make inquisi- actions triable by jury as a matter of right, it follows tion thereof by a jury or otherwise, as it deems most that the writ of error was improvidently granted, aud proper; and if it shall be thereby determined that such is therefore dismissed. accused person is so insane, his trial for such offense shall be postponed indefinitely, and the court shall thereupon order that he be confined in one of the INSURANCE-FORFEITURESWHEN ENFORCED State hospitals for the insane, etc. Rev. Stat., $ 4700. Here the proceedings were strictly in accordance with

WISCONSIN SUPREME COURT, MAY 15, 1884. the statute. The validity of the statute is not questioned. By it, if not without it, the court was author

EWALD V. NORTHWESTERN MUT. LIFE INS. Co. ized, in a summary manner, to make inquisition of the

The rule that forfeitures are not favored, and will not be then present insanity of the prisoner, by a jury or otherwise, as it deemed most proper. The inquisition

judicially declared if the rights of the parties can be saved

without, will not be enforced unless it can be done withhad was only preliminary to the trial of the offeuse. It led no bearing upon the guilt of the prisoner

out violence to the contract of the parties. In re J. B., 1 Mylne & C. 538. It was entirely collateral | A person who is assured by a life insurance company will be to the main trial, which was indefinitely postponed

presumed to understand the various provisions for forteit

ure contained in his policy, by which may suffer loss until the prisoner's sanity and capacity to act for her

through his own fault, and cannot complain of hardship self on such trial should be restored. The statute cer

occasioned by the forfeiture of his policy where he suffers tainly did not give a jury trial as a matter of right

voluntary default. upon such collateral issue. It says "the court shall" make inquisition thereof in a summary manner, by

*8. O., 19 N. W. Rep. 513.

APPEAL from County Court, Milwaukee county.

Where the language of a contract for life insurance clearly fendant claims it to have been completely forfeited and

shows a purpose to forfeit the entire policy on a failure to determined, and then the clauses by reason of which pay the interest and premiums, and such forfeitures are the plaintiff claims the policy to be valid to the extent essential to the existence of the company, a forfeiture will of four-tenths of the wbole amount of the insurance, be declared.

as a paid-up policy for four years, and only forfeited as to the remainder: First. After stating the considera

tion of the annual premium pote, the language in E. G. Comstock, for respondent.

brackets is “the interest upon which must be paid an

nually, in cash, at the date of the maturity of the anD. G. Hooker, for appellant.

nual premium." Second. After stating the terms of ORTON, J. This suit is brought upon a policy of such proportion of tenths, as the complete payment of endowment insurance, issued by the company to the the annual premiums at the time of the default, the plaintiff, bearing date June 3, 1867, to recover four- language is: “But in order to secure such proportiou tenths of the $1,000 of insurance aud interest, on the of the policy all premium notes must be taken up or ground of full payment of the cash premiums and of the interest thereon be paid annually, in cash, on the the interest ou the premium notes for such years. date of the annual maturity of the premium, until the After the first four years from the date of the policy notes are cancelled by returns of the surplus, or the the plaintiff failed to pay any wore cash premiums, or whole policy will be forfeited." This language has the to give any more premium notes, or to pay any more

effect as a condition (1) to the paynient of any portion interest upon the premium notes given for such years, of the insurance less than the whole, and (2) to avoid and the defendant company declared a forfeiture of the forfeiture of the whole policy. If the notes are the whole policy, and notified the plaintiff thereof. paid and taken up, or cancelled by returns of the sur

The plaintiff claims (1) that by the terms of the pol-plus and divinends, then of course the interest thereou icy he is entitled to four-tenths of the whole insur- ceases; but if they are not, the interest must all be paid ance, because he has fully paid the cash premiums and when due. Third. The first premium note given at interest on the premium notes for such years, if he the date of the policy for the first year, and the other had entirely failed to give the premium notes and to three notes also, after stating the interest at ✓ per pay the cash premiums and the interest on the pre- cent per annum, the language is, “which interest shall mium notes which he gave for the first four years be paid annually or the policy be forfeited." At the exthereafter, during the life of the policy; and (2) that piration of the policy by death or limitation of time, there were dividends of surplus, from year to year, the provision for payment is followed by the language, due him from the company, sufficient to pay such in- “the balance of the year's premium and all notes terest.

given for premiums, if any, being first deducted there The defendant contends (1) that by the terms of the from." The fourth express condition of the policr': policy it could be forfeited in toto by the company

that “in every case where this policy shall cease, or upon the failure of the assured to pay the interest in become null and void, all payments thereon shall be casb upon such premium uotes at the end of each year

forfeited to tbe company." It will be seen that there during the time of the pollcy; and that (2) the policy are four express conditions, or four repetitions of should have such a construction, it possible, because the same condition, upon which the whole policy and absolutely necessary and essential to the continued insurance will become forfeited at the option of the business of the company in this department of insur- company. These provisions are so plain, clear and exauce, and to any estimates of future resources, divi- plicit that there can be no ambiguity, uncertainty or dends or liabilities upon the basis of interest paid on doubt. If in any or all of these specified cases the all premium notes outstanding, and the anticipation policy may, notwithstanding, be valid and effectual to thereof, as one of the certain and permanent resources secure to the assured the proportion of tenths of the of the company for such purposes.

insurance so provided for in another part of the policy The last consideration may reasonably affect the

then all the above conditions and provisions are renrule that forfeitures are not favored, and will not be dered entirely nugatory,and are in effect stricken from judicially declared if the rights of the parties cau be the policy. For if the payment of the cash premiums fally saved or secured without. Or the rule of for- and of the interest for the first year is not made, or the feiture may be stated as in Hall v. Delaplaine, 5 Wis. premium note given, the policy would of course not take 206, and Button v. Schroyer, id. 598; it will be miti. effect for any purpose, and it would not be proper to gated or relieved against when it can be done without call it a forfeiture. If after the payment of the previolence to the contract of the parties. The law in re

miums and interest for the first year bad been fully spect to forfeiture of contracts is really elementary, made, and no future premium notes given, or future and is as claimed by the learned counsel of the respond. premiums or interest paid, the policy would still be efent. See authorities cited in his brief. With the fectual for one-tenth of the insurance, then in no case rules in respect to forfeitures established in those cases,

can there be a forfeiture of the whole policy, as proand the ordinary rules of interpretation “to give the vided for in the above contingencies. language its just sense, and to search for the precise We will now consider the provision or provisions of meaning to give the contract the sense in which the the policy which are claimed to have such a sweeppromisor believed the other party to have ing effect upon all these express conditions of forfeitcepted it, or in which he had reason to suppose it was understood by the promisee," and the 1. The policy provides that if default be made in the practical interpretation of the contract, by the prac- payment of any premium, the company is to pay the tice and conduct of the parties under it, in view, we assured “as many tenth parts of the original sum asshall endeavor to place the proper construction upon

sessed as there shall have been complete annual preit. I will not incumber and confuse the question by miums paid at the time of such default." This clause quoting more of the language of the policy than abso- is followed by the above specified condition of forfeitlutely necessary to its elucidation, or obscure it by re- ure, beginning with the qualifying words " but in or. duudancy.

der to secure such proportion," etc. In sbort, the proThe matter of difference between the parties has al. vision so qualified is that on the default of the payready been sufficiently stated, and I will first quote ment of premiums the company shall pay as many those clauses of the polioy by reason of which the de- tenths as the years in which all payments have been



made; but to secure such proportion, all the premium and in cash; second, at the expiration of the policy notes must either be taken up or the annual interest the balance unpaid of the premiums, and of the notes thereon paid in cash when due, from year to year, “or given for premiums, is deducted from the iusurance; the whole policy will be forfeited." This disposes of the notes cannot include the interest, for that is preone clause upon which the learned couusel for the re- sumed to have been already paid iu cash, and at the spondent relies.

proper time; third, the surplus or dividend is applied 2. The policy provides that “if the said premiums, to the payment of the principal of the notes, pro tanto, or the interest upon any note, shall not be paid on or and such was the practice during the first four years before the days mentioned for the payment thereof at, without question, and the interest was paid in cash at etc., or to, eto., the company shall not be liable for the the end of each year; fourth, by the construction conpayment of the whole sum assured, but only for such tended for by the learned counsel of the respondent, the part thereof as is expressly stipulated above, and the policy would not be an eleven-year policy, or until the remainder shall cease and determine." On casual death of the insured, but a yearly policy or policy for reading this might seem to conflict with these several one year. If the payments are all made for the first explicit clauses of total forfeiture, by reason of the in- year the assured may then stop and demaud under terest not being paid. But if this conflict can be this policy the one-tenth of the whole amount, or $100, avoided by any other reasonable construction of this and then give his premium note, and pay the cash preprovision from the language itself, it is of course themiums aud interest, and have an assurance for auother duty to so construe it. “If the premiums are not year. If the law allowed the compauy to do this kind paid," is followed by the disjunctive “ or if the inter- of business, most certaiuly the company would find it est is not paid.” If either is not paid presupposes that most unprofitable to do so. But this is not the scheme one has been paid. Then what is the sense on this of endowment insurance. The company are compelled necessary hypothesis? Why, most clearly, if the said to forfeit all policies on the failure to pay the interest premiums for any one year have been paid, or if not annually in cash by the exigencies of their business, so paid, the interest upon any note or upon all the on this plan of life insurance. The theory that this notes outstanding has been fully paid; that is, so long system of giving premium notes is analogous to the asas such notes shall run and bear interest; then the as- sured paying the money to the company and borrowsured may be entitled to as many tenths as the years ing it back upon annual interest, does not create one in which such premiums were paid. The interest on single reason against the above construction of the any one note cannot be said to be paid annually in policy. The interest is made, and would be as imporcash, and fully paid, for only a small part of the time portant to the company, and its prompt annual pay. in which such note runs or is outstanding. This suit ment as necessary to their business by one theory as is brought after the expiration of tbe policy. The con- by the other. It was not only the practice of the dition of recovery of any thing upon the policy by this plaintiff under this policy during the first four years to clause is that the interest on any or all of such out- pay the interest annually in cash, and apply the divi. standing notes shall have all been paid. Another form dends on the principal of the notes, but from the evi. of the sentence, with the same sense, may be adopted, dence it was and had been the invariable practice of and that is, if the premiums up to the time of the de- the company to require and have the same to be so fault and the whole interest on any premium note done, and in default of the payment of the interest in have been fully paid, then a recovery may be had for this way, to forfeit the whole policy, and this practice such proportion as may be due by reason of the full was made the basis of their future plaus of business, payments of certain years. To illustrate: The plaintiff and indispensable to them, and the plaintiff is prebrings this suit long after the expiration of the eleveu sumed to have had notice of it. Fuller v. Mad. Mut. years' time of the policy, and demands $400, as the four. Ins. Co., 36 Wis. 599. tenths of the whole insurance, because he has paid It is forcibly said in New York Life Ins. Co. v. Statfully for four years. The defense is that may be true, ham, 93 U. S. 24, by Mr. Justice Bradley: "All the calbut he has uot paid the interest on the first four pre- culutions of the insurance company are based upon the mium notes, which has been accruing from year to hypothesis of prompt payment. They do not calcu. year since that time, and for that reason a forfeiture late on the receipt of the premiums when due, but upon is demanded of the whole policy. Those premium compounding the interest upon them. It is on this notes have not been taken up or paid, and they will basis that they are enabled to offer assurance at as facontinue to bear interest until they are su taken up or vorable rates as they do. Forfeiture for non-paypaid. They become due only at the expiration of ment is a necessary meaus of protecting themselves eleven years, the limitation of the policy, or at the from embarrassment." death of the assured, by their terms. The interest In Tait v. New York Life Ins. Co., 4 Big. 479, Emthereon has been anticipated and appropriated by the mons, J., said: "Out of a given number of insured percompany, as a fund certain to be paid, and paid in sons statistics show that there will be, on an average, cash, and annually, so that the future interest upon a certain proportionate number of deaths each year, Buch interest may be realized by the company.

and in a mutual scheme the premiums to be paid We may say therefore that "the interest upon any each year by the whole number insured are fixed at note" means the whole interest on any note, without such an amount as will make their sum total just suffi. doing violence to the language of this clause of the pol-cient to meet the losses arising from the average icy. Such is the clear and obvious meaning of the lan-deaths during the year, and to provide for the unforeguage, and there is therefore no conflict between this seen fluctuations of the law of average and other conprovision and the other provisions quoted above. But tingencies, including necessary expenses. If time if the language might possibly mean, as claimed by the were thus held not to be the essence of these unilatlearned counsel of the respondent, from all the provis- eral life insurance contracts, it is difficult to see how a ions of the polioy constituting one general scheme, mutual company can escape ultimate, if not speedy, construed together, to effectuate and carry out what bankruptcy.” the parties must have intended, such a construction No other consequence than a complete forfeiture is would be compelled in order to give any force to sev- contemplated from the non-payment of the interest. eral other provisions, perfeotly olear and explicit, aud It is only from default alone in the payment of the to make such a method of insurance practicable and premiums that the policy may be valid for a propor safe both to the insurer and the insured: First, the tion of the insurance. Where a forfeiture of the eu. interest upon the premium nctes is payable annually, | tire polioy is as necessary and essential to the very existence of this plan of insurance, and to the continued nothing is said about the interest which was to be business of the company thereon, and the language of paid annually in cash, and therefore to be compounded the contract is so clear and explicit, and its sense so if not paid. The yearly interest, when due, constiobvious, and the object and purpose so apparent, and tutes a new principal bearing interest, and would not when the cause and reason of the forfeiture have been be included in the term “notes." It is cash interest, so fully established, as in this case, the court cannot to be paid promptly, while the principal of the notes hesitate to so declare it. There can be no good reason need not be paid at all, but remains to be deducted of public policy, equity, or common justice, and no from the insurance at the end of the policy. It adwell- reasoned judicial decision of other courts against mitted in that case that the condition of the policy it, in such a case, or under such a policy. The con- was that the entire policy might be forfeited for nontract and the law both force it, and to allow a recor- payment of the interest, but that such forfeiture was ery of any proportion of the insurance in such a case in the nature of a penalty; but the court refuses to enwould be a repudiation of the contract of the parties, force such a condition because it may be compensated and a substitution of one never made or contemplated in the same way as the non-payment of the premiums. by them.

By what warrant of law or construction is the nonThis view of the case, and such a construction of the payment of the interest placed upon the same footing contract of insurance, bave been sanctioned and ap- as the non-payment of the cash premiums, when the proved by several late decisions of other highly re- contract of insurance makes the first a condition prespectable courts in cases of the same form of policy, cedent to the recovery of any part of the insurance, and in cases where some of the same provisions in the and the second forfeits that part only for the years bepolicy existed, but not the several conditions of for-yond the full payment, and allows a recovery of a profeiture as in this. We shall cite only such cases as are portion as to the time in which the premiums were found and commented on in the very able briefs of paid ? Such a broad license of equitable construction the learned counsel. In doing so however any ex- of a contract, where time is made the essence in retended quotations from the opinions in those cases spect to the performance of conditions, upon which will not be necessary; but any additional reasons the very business of life insurance depends, cannot be therein not given above may be noticed.

approved. In Ohde v. N. W. Life Ins. Co., 40 Iowa, 357, the pol- In Talt v. N. Y. Life Ins. Co., U. S. Cir. Ct. (Tenn.), 4 icy did not contain the several conditions of forfeiture Big. Ins. Cas. 479, the policy provided for a full forfor non-payment of interest on the notes found in this feiture on non-payment of the premiums. In au elabpolicy, and yet the court construes the second condi. orate and most able opinion of Judge Emmons, it was tion of the policy upon which the plaintiff relies in this held that the condition was essential to the business of case to require the payment of the interest on the the company, and the time of payment was the essence notes as a condition precedent to the recovery of any of the contract, and that the intervention of the civil proportion of the insurance. The same in Symonds v. war even would not excuse the non-performance, or N. W. Life Ins. Co., 23 Minn. 491; N. W. Life Ins Co. affect the company's strict right of forfeiture of the v. Litlle, 56 Ind. 504; Ins. Co. v. Bonner, 36 Ohio St. 51; whole policy. But in Hancock v. The Same Company; Fithian v. Same, 4 Mo. App. 386.

in the United States Circuit Court for the District of In New York Life Ins. Co. v. Statham, 93 U. S. 24, Kentucky, reported in the same volume, page 488, in a supra; Manhattan Life Ins. Co. v. Buck, id., the similar case, it was held that the assured, being preclauses of forfeiture were as to the non-payment of the vented by the civil war from further payment, after premiums, and it was held that the company were several years' payment of the yearly premiums, might legally entitled to the forfeiture; but in the latter case recover iu equity such damages as the plaintiff might it was held by a majority of the court, that the great have suffered in the matter, not however on the critecivil war having intervened to prevent the payments, rion of the actual premiums paid in the years before the the assured was equitably entitled to what his inter- default caused by the war. The legal right of the comest in the policy, by reason of the former payments, pany to a full forfeiture of the policy was conceded, was worth; but there are strong dissenting opinions in but the intervention of the war was supposed to have that case that even such a cause was not an excuse to raised an equity in favor of the assured ; that is, that prevent a full forfeiture of the policy. The opinion of under the peculiar circumstances the company ought Mr. Justice Bradley as to such causes of full forfeiture in equity and good conscience to allow the assured is especially applicable to this case: “The contract is something on the policy. But this ruling was opposed not for an assurance for a single year, with a privilege to numerous authorities cited by Judge Emmons in 4 of renewal from year to year by paying the annual Big., supra, in cases of interruption of performance of premium, but it is an entire contract of assurance for such contracts by war. When by a great preponderlife (11 years), subject to discontinuance and forfeiture ance of authority, it is held that even war, by which for non-paymeut of any of the stipulated premiums. performance has become impossible, will not affect the Sach is the form of the contract and such is its char-right of an insurance company to declare an entire foracter. * * * Each installment is, in fact, part feiture of the whole contract, in which strict performcousideration of the entire insurance for life; * ance of conditions is made essential, and in default of the whole premiums are balanced against the whole which a forfeiture of the entire contract is stipulated insurance."

in clear and unmistakable terms, what should be said In St. Louis M. Life Ins. Co. v. Grigsby, 10 Bush, 310, of the Grigsby case, supra, of Ohde v. Ins. Co., supra 4 the terms and conditions of the policy were almost Little v. N. W. M. Life Ins. Co., supra, and Dutcher v. exactly the same as in this case. The court held how- Brooklyn Life Ins.Co., 2 Cent.L.J.153,or 4 Big. Ing. 665, ever that the interest on the premium notes might be and perhaps some other cases, where the assured, not paid in dividends, without citing any provision of the only without cause or excuse, but willfully and perpolicy allowing it. Here it is to be paid in cash, the sistently refused to pay the interest on the premium whole of it at the end of the year, and the dividends notes, and where the contract in clear terms makes are applied upon the notes to reduce their principal. such a default the condition of complete forfeiture, In that respect the two policies may be different. By and it is yet held that only a partial forfeiture or a forthis policy, when the time of its expiration arrives, the feiture pro tanto may be declared ? The only apology unpaid cash premiums, and the balance of the prem- for such cases is that they were decided in courts of ium notes after the deduction of the dividends there- equity, where equitable constructions may sometimes from, are to be deducted from the insurance, and be allowed.



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