that they are not in a position to contend that their property has been taken without due process of law. If the court had gone farther, and held that the taking of defendants' property for the purpose, not only of abolishing grade crossings, but of enabling the railroad company to lay additional tracks, was not a violation of the twentyfifth amendment to the state Constitution, that would have been exclusively a local question, and would have involved no ques

5.

in respect to which both parties are equally
chargeable with knowledge, cannot constitute
a false representation or deceit.

An exception to instructions is not waived
by subsequently asking the court to repeat
them, in connection with certain answers
made to questions propounded by the jury,
as this merely asks the restatement so as to
qualify those answers.

[No. 12.]

28, 1900.

N WRIT OF CERTIORARI to the United

States Circuit Court of Appeals for the
Ninth Circuit to review a decision dismiss-
ing a writ of error for lack of jurisdiction.
Reversed.

tion of an unlawful taking of defendants' Argued January 22, 23, 1900. Decided May
property within the Fourteenth Amendment.
If the fact that the city of Bridgeport
contributed to the expense of abolishing
grade crossings, and, incidentally thereto, to
the construction of additional tracks, does
no violence to the constitutional provision
that no city shall make a donation in aid of a
railroad corporation, as held by the supreme
court of Connecticut, much less does it make
a case of taking the property of petitioners,
whether as property owners or as taxpayers,
without due process of law.

The decree of the Supreme Court of Errors of the State of Connecticut is therefore affirmed.

See same case below, 48 U. S. App. 78, 76
Fed. Rep. 617, 22 C. C. A. 425.

Statement by Mr. Justice Brewer:

*On September 22, 1890, Guy C. Phinney,[328] a resident of the state of Washington, applied to the Mutual Life Insurance Company of New York for a policy of insurance on his life for the sum of $100,000 payable

Mr. Justice Gray did not sit in this case, to his executors, administrators, or assigns. and took no part in the decision.

]*MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Petitioner,

v.

This application was forwarded by the local
agent at Seattle to the general agent of the
company at San Francisco, and by him to
the home office of the company in New York
city. By reason of such application a pol-
icy was issued to Phinney, bearing date Sep-
tember 24, 1890, forwarded to the general

NELLIE PHINNEY, Executrix of Guy C. agent at San Francisco, by him to the local
Phinney, Deceased.

(See S. C. Reporter's ed. 327-344.) Appeal failure of clerk to indorse filing on writ of error-insurance-abandonment and rescission of policy after default-presumption as to knowledge of law governing contract-expression of opinion as to matter of law-waiver of exception to instruction by asking court to repeat it.

1.

The failure of a clerk of the circuit court of appeals to indorse a writ of error as filed cannot defeat the transfer of the case, when the judge has done all that is necessary for him to do, and the party has done all that is required of him.

2. An abandonment and rescission of a contract of life insurance by mutual agreeinent of the parties after the insured is in default by nonpayment of premiums will put an end to the contract, although a forfeiture could not have been declared, by reason of the fallure of the insurer to give notices required by statute.

8. It is conclusively presumed that both parties to a contract know the law in respect to which they make it, when they agree that it shall be determined by the laws of a certain state.

4.

A mere expression of opinion as to a condition of a contract, which is a matter of law, NoгE-As to cxpression of opinion as fraud see Hedin v. Minneapolis Medical & Surgical

And

Inst. (Minn.) 35 L. R. A. 417, and note.
see note to Fargo Gaslight & Coke Co. v. Fargo
Gas & Electric Co. (N. D.) 37 L. R. A. 604.

agent at Seattle, and by the latter deliv-
ered to Phinney, who received it, and at the
same time paid the first year's premium,
amounting to $3,770. The policy provided
that Phinney should pay the annual pre-
mium of $3,770 on September 24 of each
year thereafter for twenty full years, pro-
vided he should live so long, and also "this
policy shall become void by nonpayment of
the premium; all payments previously made
shall be forfeited to the company, except as
hereinafter provided." This last exception
referred to certain provisions as to surren-
der value and readjustment of the amount
of insurance on the payment of a certain
number of payments, none of which are ma-
terial to the question at issue in this case.
Prior to September 24, 1891, notices were
sent by both the general agent at San Fran
cisco and the local agent at Seattle to Phin-
ney that his premium would be due on Sep-
tember 24, 1891. Twice between the time *of[329)
the receipt of this notice and the 24th of
September, 1891. Phinney met Stinson, and
requested him to accept his notes for the
payment of the premium. This proposition
was declined by Stinson, who declared at the
time that he was unable to advance the pre-
mium for Phinney. Some time after Sep-
tember 24, 1891 (the exact date being un-
known, but, according to the testimony, from
four to six weeks thereafter), Phinney again
met Stinson, and stated that he was pre
pared to pay the premium, but was told that
it could not be accepted unless a certificate

178 U. S.

of eighteen hundred and seventy-six, entitled An Act Regulating the Forfeiture of Life Insurance Policies,' is hereby amended so as to read as follows:

of health was furnished. No certificate of |
health was ever furnished. Phinney stated
that he could not obtain it, as he had been
rejected by another company a few days
before, nor was there ever any formal ten "Sec. 1. No life insurance company doing
der of the premium. In December, 1891, a business in the state of New York shall
January, 1892, Stinson requested Phinney have power to declare forfeited or lapsed any
to allow him to have the policy to use for policy hereafter issued or renewed by reason
canvassing purposes, and Phinney thereupon of nonpayment of any annual premium or
surrendered the policy to the agent, with the interest, or any portion thereof, except as
statement that as the same had lapsed he hereinafter provided. Whenever any pre-
had no further use for it. Stinson received mium or interest due upon any such policy
the policy, and never returned it to Phinney. shall remain unpaid when due, a written or
On September 24, 1892, the premium falling printed notice stating the amount of such
due on that day was neither paid nor ten- premium or interest due on such policy, the
dered by Phinney, nor did he after the sur-place where said premium or interest should
render of the policy in December, 1891, or be paid, and the person to whom the same is
January, 1892, ever take any action in re- payable, shall be duly addressed and mailed
gard thereto, or pay, or offer to pay, any to the person whose life is assured, or the
premium thereon. On September 12, 1893, assignee of the policy, if notice of the as-[331]
Phinney died, leaving his last will and tes-signment has been given to the company, at
tament, wherein he nominated the plaintiff his or her last-known postoffice address,
as executrix. Nothing was done by her un- postage paid by the company, or by an agent
der this policy until July, 1894, although of such company, or person appointed by it
Phinney held policies in two other companies
at the time of his death, proofs in respect
to which were presented by the executrix
within one month after his death. At that
time she wrote to the insurance company a
letter, in which she stated as follows:

to collect such premium. Such notice shall further state that unless the said premium or interest then due shall be paid to the company or to a duly appointed agent or other person authorized to collect such premium within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and

Seattle, Wash., July 11, 1894. The Mutual Life Insurance Co. of New York: void. In case the payment demanded by Gentlemen: On September 24, 1890, my such notice shall be made within the thirty husband, Guy C. Phinney, took out a pol days limited therefor, the same shall be taken icy, No. 422,198, in your company in the sum of one hundred thousand dollars. He died ments of the policy in respect to the payment to be in full compliance with the requirein this city last September 12, 1893. Not of said premium or interest, anything therebeing familiar with his affairs, and the pol-in contained to the contrary notwithstandicy being mislaid, I was not aware that he [330]held such a policy until a few days ago, when the matter was brought to my atten

tion.

In addition, it appears that on the 16th day of September, 1893, in her application for probate of her husband's will, she filed an affidavit, which contained these state

ments:

"Real estate, consisting of lands in said King county, of town lots in the city of Seattle, and of improved city property, the exact description of all which is at this time unknown to your petitioner, but which is entirely community estate, the value of which is about $300,000; that there is personal property of various kinds, all of the same being community property of the value of about $50,000; that the total estate of said deceased, including the community interest of your petitioner, who is the widow of the said deceased, does not exceed in value the sum of about $350,000."

In July, 1894 (evidently at the suggestion of counsel), she presented her claim under the policy, which was rejected, and thereupon this suit to recover thereon was brought in the circuit court of the United States for the district of Washington.

At the time the application was made and the policy issued the following statute was in force in the state of New York:

"Section one of chapter 341 of the laws

ing; but no such policy shall in any case be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.

"Sec. 2. The affidavit of anyone authorized by section one to mail such notice, that the same was duly addressed to the person whose life is assured by the policy, or to the assignee of the policy, if notice of the assignment has been given to the company, in pursuance of said section, shall be presumptive evidence of such notice having been given." Laws 1877, chap. 321.

In 1892, and after the first default in the payment of premium by Phinney and the surrender of his policy to the agent, Stinson, the following statute was substituted for the act of 1877:

"Sec. 92. No forfeiture of policy without notice. No life insurance corporation doing business in this state shall declare forfeited, or lapsed, any policy hereafter issued or renewed, and not issued upon the payment of monthly or weekly premiums, or

unless the same is a term insurance contract for one year or less, nor shall any such pol[332]icy be forfeited, or lapsed, by reason of nonpayment when due of any premium, interest, or instalment or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating the amount of such premium, interest, instalment, or portion thereof, due on such policy, the place where it should be paid, and the person to whom the same is pay able, shall be duly addressed and mailed to the person whose life is insured, or the assignee of the policy, if notice of the assignment has been given to the corporation, at his or her last-known postoffice address, postage paid by the corporation, or by an officer thereof, or person appointed by it to collect such premium, at least fifteen and not more than forty-five days prior to the day when the same is payable.

"The notice shall also state that unless such premium, interest, instalment, or portion thereof, then due, shall be paid to the corporation or to a duly appointed agent or person authorized to collect such premium by or before the day it falls due, the policy and all payments thereon will become forfeited and void except as the right to a surrender value or paid-up policy as in this chapter provided.

"If the payment demanded by such notice shall be made within its time limited therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited or declared forfeited or lapsed, until the expiration of thirty days after the mailing of such notice.

"The affidavit of any officer, clerk, or agent of the corporation, or of anyone authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy, shall be presumptive evidence that such notice has been duly given." Laws 1892, chap. 690.

In its answer the company pleaded that the contract was to be taken as a contract made in the state of Washington, and not controlled by the laws of the state of New York, because the application stipulated that the contract "shall not take effect until the first premium shall have been paid and the policy shall have been delivered." In fact, the policy was delivered and the premium paid in the state of Washington. It also pleaded the other provisions in reference to the failure to pay the annual pre mium, and the waiver, abandonment, and rescission of the contract by the assured under the circumstances herein before named.

The case came on for trial on these pleadings before the court and a jury, and resulted in a verdict and judgment for the plaintiff for the amount of the policy, less the unpaid premiums. The case was thereupon

taken on error to the United States circuit court of appeals for the ninth circuit, which court dismissed the writ of error on the ground that it had no jurisdiction by reason of a failure on the part of the plaintiff in error to file the writ of error in the office of the clerk of the trial court. 48 U. S. App. 78, 76 Fed. Rep. 617, 22 C. C. A. 425. Thereupon application was made to this court, and the case brought here on certiorari.

Mr. Julien T. Davies argued the cause and, with Messrs. Edward Lyman Short, John B. Allen, and Frederic D. McKenney, filed a brief for petitioner:

The lodging of the writ of error with the clerk for the purpose of the return constitutes the filing contemplated by law.

Re Norton, 34 App. Div. 79, 53 N. Y. Supp. 1093; Bailey v. Costello, 94 Wis. 87, 68 N. W. 663; Edwards v. Grand, 121 Cal. 254, 53 Pac. 796; Holman v. Chevaillier, 14 Tex. 339; Gorham v. Summers, 25 Minn. 81; United States Nat. Bank v. First Nat. Bank, 49 U. S. App. 67, 79 Fed. Rep. 302, 24 C. C. A. 597; Ex parte Thorne, L. R. 8 Ch. 722; Irwin v. McGuire, 44 Ala. 499; Flinn v. Shackleford, 42 Ala. 202; King v. Wade, The application made by Phinney for the 1 Barn. & Ad. 861; Reed v. Acton, 120 Mass. policy contained this statement: "This ap- 130; Adams v. Goodwin, 99 Ga. 138, 25 S. plication is made to the Mutual Life In-E. 24; First Nat. Bank v. Hatfield, 20 surance Company of New York, subject to the charter of the company and the laws of the state of New York." The policy stipulated that on its maturing the insurance company would "pay at its home office in the city of New York." It also stipulated that the annual premium should be payable [333]"to the company at its home office in the city of New York." The policy also contained this provision:

"Payment of premiums.-Each premium is due and payable at the home office of the company in the city of New York, but will be accepted elsewhere when duly made in exchange for the company's receipt, signed by the president or secretary. Notice that each and every such payment is due at the date named in the policy is given and accepted by the delivery and acceptance of this policy, and any further notice, required by any statute, is thereby expressly waived."

Wash. 224, 54 Pac. 1135, 55 Pac. 932; Watkins v. Bugge, 56 Neb. 615, 77 N. W. 83; Brooks v. Nevada Nickel Syndicate (Nev.) 52 Pac. 575.

An indorsement of filing affords the usual and convenient proof of what has been done, but it does not constitute the filing, nor does it afford the only proof thereof.

Powers v. State, 87 Ind. 144; Peterson v. Taylor, 15 Ga. 483, 60 Am. Dec. 706; Wheeling Pottery Co. v. Levi, 48 La. Ann. 777, 19 So. 752.

The most solemn contract under seal, when the statute of frauds is not involved, may be changed or abrogated by a new parol agreement, express or implied; and a contract within the statute may be taken out of it by the conduct of the parties.

Philadelphia, W. & B. R. Co. v. Trimble, 10 Wall. 367, 19 L. ed. 948.

The representation by the agent that the

Phillips v. Beene, 38 Ala. 248.

default of the insured worked a forfeiture | tody, on the part of the party charged with did not constitute fraud and deception on the duty of filing it, and in the making of the ground that it was a misrepresentation the appropriate indorsement by the officer. of foreign law, and therefore a misrepresentation of fact. That a foreign law is to be proved as a fact is a proposition not to be disputed; but that is another and quite a different thing from the construction of a foreign statute.

Cathcart v. Robinson, 5 Pet. 264, 8 L. ed. 120; Kline v. Baker, 99 Mass. 255.

Whether the statute of New York applied to work a forfeiture was merely a matter of opinion.

Sturm v. Boker, 150 U. S. 312, 37 L. ed. 1093, 14 Sup. Ct. Rep. 99; Latham v. Smith,

45 Ill. 25.

Messrs. Robert Sewell, E. Lyman Short, and John B. Allen filed a brief in support of petition for certiorari.

Mr. Stanton Warburton argued the cause and, with Mr. A. F. Burleigh, filed a brief for respondent:

A writ of error, then, is not brought or sued out, in the legal meaning of the term until filed in the court which rendered the judgment. It is the filing of the writ which removes the record from the inferior to the appellate court, and gives that court jurisdiction of the case.

Filing imports more than a mere reception into the custody of the clerk of the court; his indorsement is necessary.

Pinders v. Yager, 29 Iowa, 468; Moyer ▼. Preston (Wyo.) 44 Pac. 850.

The fact that neither clerk nor counsel deemed it necessary to file certain papers, or knew how to file them properly, would be no excuse for their not being properly filed.

Florida v. Charlotte Harbor Phosphate Co. 30 U. S. App. 535, 70 Fed. Rep. 883, 17 C. C. A. 472; Warner v. Texas & P. R. Co. 2 U. S. App. 647, 54 Fed. Rep. 920, 4 C. C. A. 670.

The only legitimate presumption that may be indulged in from the fact that the writ accompanied the record to the circuit court of appeals is that the writ was issued by the clerk of the lower court. The whole record bears out this presumption, and this alone

Credit Co. v. Arkansas C. R. Co. 128 U. S. 258, 32 L. ed. 448, 9 Sup. Ct. Rep. 107; Farrar v. Churchill, 135 U. S. 609, 34 L. ed. 246, 10 Sup. Ct. Rep. 771.

The affidavit of the clerk in the lower court, the recital in the citation that the writ had been filed, and the return of the clerk that the fees for transcribing the record had been paid, cannot supply the failure of the record to show that the writ had been filed.

Hudgins v. Kemp, 18 How. 530, 15 L. ed. 511, 514; Edmonson v. Bloomshire, 7 Wall, 306, 19 L. ed. 91; Lonkey v. Keyes Silver Min. Co. 21 Nev. 312, 17 L. R. A. 351, 31 Pac. 57; The Lindrup, 70 Fed. Rep. 718; 3 Enc. Pl. & Pr. pp. 292 et seq.

Brooks v. Norris, 11 How. 204, 13 L. ed. 665; Mussina v. Cavazos, 6 Wall. 355, 18 L. ed. 810; Cummings v. Jones, 104 U. S. 419, 26 L. ed. 824; Scarborough v. Pargoud, 108 U. S. 567, 27 L. ed. 824, 2 Sup. Ct. Rep. 877; Polleys v. Black River Improv. Co. 113 U. S. 81, 28 L. ed. 938, 5 Sup. Ct. Rep. 369; Credit Co. v. Arkansas C. R. Co. 128 U. S. 258, 32 L. ed. 448, 9 Sup. Ct. Rep. 107; Farrar v. Churchill, 135 U. S. 609, 34 L. ed. 246, 10 Sup. Ct. Rep. 771; United States v. Baxter, 10 U. S. App. 241, 51 Fed. Rep. 624, 2 C. C. A. 410; Union P. R. Co. v. Colorado East-condition on which a policy may be forern R. Co. 12 U. S. App. 110, 54 Fed. Rep. 22, 4 C. C. A. 161; Warner v. Texas & P. R. Co. 2 U. S. App. 647, 54 Fed. Rep. 920, 4 C. C. A. 670; Stephens v. Clark, 18 U. S. App. 584, 62 Fed. Rep. 321, 10 C. C. A. 379; Threadgill v. Platt, 71 Fed. Rep. 1; Crippen V. Livingston, 12 Fla. 638; Wright v. Hughes, 2 G. Greene, 142.

To file a paper on the part of a party is to place it in the official custody of the clerk. To file, on the part of the clerk, is to indorse upon the paper the act of its reception, and retain it in his office subject to inspection by whomsoever it may concern. The act of filing has these two branches, and a full and proper definition of filing embraces them both.

Burill, Law Dict.; Black, Law Dict.; Webster, Int. Dict.; Standard Dict.; 1 Foster, Fed. Prac. 598; Amy v. Shelby County, 1 Flipp. 104, Fed. Cas. No. 345; Erwin v. United States, 37 Fed. Rep. 470, 2 L. R. A.

229.

Filing signifies more than mere indorsement to that effect, and comprehends entries made by the clerk on the record.

Johnson v. Hodges, 65 Mo. 589. Filing a paper is now understood to consist in placing it in the proper official cus

The statute of New York prescribes the

feited for the nonpayment of a premium. The statute is mandatory and controls the contract. Its provisions are not liable to be set aside or waived by the company, or the assured, or by both together.

Equitable L. Assur. Soc. v. Clements, 140 U. S. 226, 35 L. ed. 497, 11 Sup. Ct. Rep. 822; Hicks v. National L. Ins. Co. 20 U. S. App. 410, 60 Fed. Rep. 690, 9 C. C. A. 215; Griffith v. New York L. Ins. Co. 101 Cal. 627, 36 Pac. 113; Warner v. National Life Asso. 100 Mich. 157, 58 N. W. 667; Equitable L. Assur. Soc. v. Nixon, 48 U. S. App. 4S2, 81 Fed. Rep. 796, 26 C. C. A. 620; Mullen v. Mutual L. Ins. Co. 89 Tex. 259, 34 S. W. 605; Rowe v. Brooklyn L. Ins. Co. 16 Misc. 323, 38 N. Y. Supp. 625; Phelan v. Northwestern Mut. L. Ins. Co. 113 N. Y. 147, 20 N. E. 827; Carter v. Brooklyn L. Ins. Co. 110 N. Y. 15, 17 N. E. 396; Baxter v. Brooklyn L. Ins. Co. 119 N. Y. 450, 7 L. R. A. 293, 23 N. E. 1048; McDougall v. Provident Sav. Life Assur. Soc. 135 N. Y. 551, 32 N. E. 251; De Frece v. National L. Ins. Co. 136 N. Y. 144, 32 N. E. 556; New York 1. Ins. Co. v. Smith (Tex. Civ. App.) 41 S. W. 680.

No party to a contract can rescind until he has returned. or offered to return, all

consideration he has received under the con- | A. Reeves Ayres, Clerk. By R. M. Hopkins, tract.

[834] *Mr. Justice Brewer delivered the opin-indorse original citations and writs of error ion of the court: