policy under the clause above quoted, which proposition Tullidge declined. No notice had been given in any way to the insured or the assured that the premiums becoming due after September 19, 1880, would not be received after the day on which they were payable, and on December 31, 1880, Tullidge was in all respects as good a risk as when the original application for insurance was made. No part of the premiums received by the company were returned to the party paying the

same.

The company refusing to receive such premium or to continue the policy in force, the beneficiaries, on March 3, 1881, brought suit in the Court of Common Pleas of Hamilton County to compel it to do so. The cause was heard in that court on issue joined, and the relief asked by the beneficiaries was granted. 6 Cin. L. Bulletin 341; opinion per Avery, J. The judgment was affirmed in the district court, and the company now moves for leave to file in this court, a petition in error to reverse the judgments of both courts.

C. D. Robertson, in support of the motion.

The policy was forfeited for non-payment of the premium on December 19, 1880; there was no waiver; and a court of equity had no jurisdiction to relieve from such forfeiture. Insurance Co. v. Wolff, 95 U. S. 326; McKenzie v. Steele, 18 Ohio St. 38; Insurance Co. v. McMillen, 24 Ohio St. 82; Merseran v. Ins. Co., 66 N. Y. 278; Catoir v. Ins. Co., 33 N. J. L. 487; Bowton v. Ins. Co., 25 Conn. 542; Klein v. Ins. Co., Thompson v. Ins. Co., 104 U. S. 88, 252; Smith v. Ins. Co., 3 Hill. N. Y. 508; Darnley v. Proprietors, 2 L. R. H. L. 43; Howard v. Carpenter, 2 Md. 259; Howell v. Ins. Co., 1 Bigelow's R. 578.

Sayler & Sayler, contra.

The forfeiture was waived and a court of equity has jurisdiction; Cohen v. Ins. Co., 50 N. Y. 610; Bliss on Ins. (2 ed.) § 413; Mansbach v. Ins. Co., 17 Hun: 340; Ins. Co. v. Goettker, 4 Am. L. Rec. 111 S. C.; 33 Ohio St. 459; Day v. Ins. Co., 45 Conn. 489; Neville v. Ins. Co., 17 Ohio St. 218; S. C. 19 Ohio St. 457; Carpenter v. Ins. Co., 4. Sand. Ch. 408; Taylor v. Ins. Co., 9 How. U. S. 390; Ins. Co. v. Norton, 96 U. S. 242; Rudwig v, Ins. Co., (Ky.) 11 Ins. L. Jour. 603; Ins. Co. v. McMillan, 24 Ohio St. 82; Ins. Co. v. Pierce, 75 Ill, 426; The State v Graham,

25 La. 443; Helme v. Ins. Co., 61 Pa. St. 110; Ins. Co. v. Eggleston, 96 U. S. 577; Hanley v. Ins. Co., 96 Mo. 380; Meyer v. Ins. Co., 51 How. Pr. 263; McCraw v. Ins. Co., 78 N. C. 149; Buckbee v. U. S. M. A. & T. Co., 18 Barb. 544; Ruse v. Ins. Co., 26 Barb. 560; Garber v. Ins. Co., 5 Bigelow 221; Bodine v. Ins. Co., 51 N. Y. 117; Thompson v. Ins. Co., 52 Mo. 469; Hanley v. Ins. Co., 4 Mo. App. 252; Ins. Co. v. Hinerly, 75 Ind. 1; Mayer v. Ins. Co., 38 Iowa 304; Murphy v. Ins. Co., 59 Tenn. 450; Ins. Co. v. Huth, 49 Ala. 529; Ins. Co. v. Ins. Co., 10 Ins. L. Jour. 257; Miller v. Ins. Co., 12 Wall. 285; Ins. Co. v. Booker, 9 Heis. 606; Wing v. Harvey, 2 Big. 365; Sheldon v. Ins. Co., 25 Conn. 207; Rockwell v. Ins. Co., 20 Wis. 335; Smith v. Ins. Co., 2 Mo. App. 339; Ins. Co. v. Doster, 106 U. S. 30; Hodson v. Ins. Co. 97 Mass. 144; Dilleber v. Ins. Co., 7 Daly 542; S. C. 76 N. Y. 567; Ins. Co. v. Ins. Co., 86 Pa. St. 236; S. C. 11 Ins. L. Jour. 540; Ins. Co. v. Tesler, 62 Ga. 247; Goodwin v. Ins. Co., 73 N. Y. 491.

OKEY, J. 1. Where an insurance company has refused to receive from the assured the amount of a premium on a life policy, basing such refusal on the ground that the policy had lapsed by non-payment of such premium at the time stipulated for its payment, the assured, if the refusal is wrongful, has an election of remedies. He may tender the premiums as they become due till the policy is payable, and then recover the amount of the policy in an action thereon. He may, in an action for the rescission of the contract, recover back the premiums paid, with interest. Or he may maintain an action to obtain a judgment that the policy shall be continued in force; Union Cen. L. Ins Co. v. Pottker, 4 Am. L. Rec. 111 ; S. C 33 Ohio St. 459; Meyer v. Knickerbocker L. Ins. Co., 73 N. Y. 516; Day v. Conn. Gen. L. Ins. Co., 45 Conn. 480; May on Ins. § 356 et seq. The latter course was adopted here, and the propriety of pursuing it, where it is desired that the policy shall be continued in force, is obvious. The witnesses to prove there had been no forfeiture may die before the insured, and the insured himself may be an important witness on the question of forfeiture; and, besides, insurance in another company may be desired, in case it is determined that the policy is not in force.

2. Finding that equity has jurisdiction, the question is whether a case for relief is presented The defendant is a

foreign corporation and the insured a resident of this state, and the premiums were all paid at Cincinnati to an agent of the company residing there. This agent was required to and did countersign the receipts which had been furnished by the company, on payment of the premiums to him. Conditions upon those receipts show that, nothwithstanding the language of the policy, payments after the days on which premiums fell due, were contemplated, for they provide that such premiums shall not be received after the days named for their payment, unless the insured is in good health and as good a risk as when the policy was issued. Premiums had been repeatedly, and without objection, received by such agent after the days specified for their payment, and no one of the last eight premiums had been paid until it was overdue-in one instance a week or more. This was done in the exercise of the power to receive premiums after the specified days, where the risk had not been increased by any change in the health or condition of the insured; and it is clear that there had been no such change in the insured's health or condition on December 31, 1880, when the premium falling due December 19, 1880, was tendered. No notice had been given to the insured or assured of any purpose on the part of the company to change the practice which had prevailed between the parties as to the time of paying premuums on this policy; no part of the sums which had been received on overdue premiums was ever returned; and it is clear that there was no intention on the part of the insured or the assured to abandon the insurance or evade the payment of any premium. In our opinion it would be unwarranted and plainly unjust, looking to the character of the agency, the course of business as to this policy, and other matters mentioned in the statement of the case, to permit the company to assert such forfeiture. We think the court of common pleas did not err in granting the relief which was asked for by the beneficiaries, and the district court properly affirmed the judgment; and in so holding we are fully supported by Union Central L. Ins. Co. v. Pottker, supra.; Phoenix Ins. Co. v. Doster, 106 U. S. 30; Germania Life Ins. Co. v. Rudurig, (Ky. Ct. of Appeals, 1882), 11 Ins. L. Jour. 603; May on Ins. § 361.

Motion overrulod.

MARRIED WOMEN—TORTS-CIVIL SUIT—ARREST.

(N. Y. City Superior Court. Special Term.)

MUSSER V. MILLER.

The reason of the common law rule in regard to the joinder of the husband with the wife has wholly ceased to exist; and the rule itself has been abrogated in all cases, of torts as well as contracts, affecting the separate property of a married woman, or connected with or arising from the management or control of her business; and the exemption of a married woman from arrest, which sprang solely from the reason of the rule, has ceased in all cases in which the law expressly authorizes the arrest of females in general terms.

HEARD On motion to vacate order of arrest.

Mrs. Julia Miller was arrested in a suit against her in the superior court, brought by Frederick W. Musser and others. to recover the value of a large quantity of lace stolen from the firm by one of its employes, and which, it was claimed, Mrs. Miller received, knowing that it was stolen property. Her discharge was asked for upon the ground that she, being a married woman, can not be held upon an order of arrest in a civil action.

FREEDMAN, J. The plaintiffs have made out a prima facie case against the defendant, Julia Miller, which has not been overcome by the proofs adduced by her to such a degree that I can determine the merits. The testimony of James J. Madden, the thief, and Fannie Lewis, the receiver, is corroborated in several particulars, and especially by the circumstance that some of the stolen goods have been shown beyond controversy to have been in the possession of the defendant. Her statement, by affidavit, that she paid a fair value for the goods she did purchase from the receiver, can not overcome the case made against her, because from the fact that she was a dealer in laces since 1877, and a purchaser from leading merchants in New York, and had even received goods on consignment from the plaintiffs in this action, the inference may be drawn that her statement is not true, and that she knew at the time that she was getting the goods very much below their intrinsic as well as market value. Without going into particulars it is sufficient to say that much of what the defendant shows may be true, and yet a prima facie case remains against her,

that she committed at least a willful injury to plaintiff's property within the meaning of section five hundred and fiftythree of the Code of Civil Procedure. By the affirmance of the Court of Appeals (64 N. Y. 625) of Duncan v. Katen (6 Hun 1), it is now settled that in such a case a willful injury to property does not mean an injury merely to the thing itself, but an injury to the owner's right in and to the thing.

The case at bar, therefore, falls within that class of cases in which the rule prevails that the court will not try the merits upon affidavits. This being so, the order of arrest can not be vacted unless the defendant's point is well taken, that because she is a married woman no order of arrest will lie against her under any circumstances.

At common law a married woman could not be held to bail in an action founded upon her personal tort, though the husband might be held and might be compelled to give bail for both (Grah. Pr. 127; Anonymous, 1 Duer. 613; Schaus v. Putscher, 16 Abb. Pr. 353; note). That the code in force before the code of civil procedure did not change the rule upon this point was distinctly held in Solomon v. Waas (2 Hilt. 179).

The necessity for holding the husband arose from the legal effect of the marriage relation. At common law the husband and wife by marriage became one person in law, that is, the very being or legal existence of the woman was suspended during the marriage, and incorporated or consolidated into that of the husband. But the necessity for such joinder was not, strictly speaking, because the husband was absolutely liable, but it grew out of the fact that a suit could not be maintained against a wife alone during coverture (Bishop on Mar. Women, sec. 254).

Under the statutes of this state any married woman may take and hold real as well as personal property separate and apart from her husband, and enjoy the same, and the rents, issues and profits thereof, in the same manner as if she were a single female; and she has express authority to bargain, sell, assign and transfer her separate personal property, to carry on any trade or business, and perform any labor or services on her sole and separate account. The power thus conferred to carry on a trade or business includes the ability to make bargains and contracts in relation to it in almost any mode