15 Wall. 573-580, 21 L. 229, PARTRIDGE v. THE INSURANCE CO.

Customs and usages.- Parol evidence is inadmissible to incorporate a custom into an express contract in writing, the terms of which are neither technical nor ambiguous, p. 579.

Cited and principle applied in Grace v. American, etc., Ins. Co., 100 U. S. 283, 27 L. 934, 3 S. Ct. 210, holding evidence of custom among insurance men inadmissible to vary terms of written contract; Mutual, etc., Life Ins. Co. v. Charles, 17 Fed. Cas. 1074, denying agent has continuing right in insurance business by usage; Candee v. Citizens' Ins. Co., 4 Fed. 144, holding evidence of custom to add to terms of policy inadmissible; The Dictator, 30 Fed. 638, holding evidence of custom to discharge by lighters inadmissible, where charter-party required consignees to furnish wharf; Sorensen v. Keyser, 51 Fed. 32, 2 U. S. App. 177, holding parol evidence inadmissible to show what parties contemplated, where contract is unambiguous; Phoenix, etc., Life Ins. Co. v. Holloway, 51 Conn. 314, 50 Am. Rep. 23, holding agent had no right in premiums to accrue except as contract expressly provided; Marks v. The Cass, etc., Elevator Co., 43 Iowa, 148, holding parol evidence inadmissible to vary contract of bailment; Stout v. McLachlin, 38 Kan. 125, 15 Pac. 905, refusing to permit proof of custom to alter specific agreement; Phenix Ins. Co. v. Munger, 49 Kan. 193, 33 Am. St. Rep. 365, 30 Pac. 122, refusing evidence of custom among other insurance companies, to vary plain writing.

Distinguished in Ball v. Aurora, etc., Ins. Co., 20 Fed. 235, sustaining agent's power to bind company by parol waiver of immediate payment of premiums; McCulsky v. Klosterman, 20 Or. 114, 25 Pac. 368, 10 L. R. A. 789, holding proof of usage admissible to explain words of technical meaning in contract; Bardwell v. Ziegler, 3 Wash. 39, 28 Pac. 361, holding proof of custom, with reference to which contract made, admissible.

Appeal and error.- Objection to pleading as set-off, amount admitted by plaintiff, cannot be made for first time in Supreme Court, pp. 579, 580.

Cited in Dushane v. Benedict, 120 U. S. 644, 30 L. 813, 7 S. Ct. 702, holding objection to evidence of counterclaim for want of notice not allowable in Supreme Court.

Courts.- Defendants in Federal Circuit Courts can avail themselves of State laws concerning right of set-off generally, p. 580. Followed in Bull v. First, etc., Bank, 14 Fed. 614, enforcing law of set-off as construed by State courts; Frick v. Clements, 31 Fed. 542, Adams v. Spokane Drug Co., 57 Fed. 889, 23 L. R. A. 334, and Charnley v. Sibley, 73 Fed. 982, 34 U. S. App. 705, allowing setoffs according to State practice. Cited also in Du Vivier v. Hop

kins, 116 Mass. 128, 17 Am. Rep. 145, holding nature of issue or Judgment to be rendered not changed by removal to Federal court.

15 Wall. 580-591, 21 L. 236, LIFE INS. Co. v. TERRY.

Insurance.- Doctrine of Hartman v. Keystone Ins. Co., 21 Pa. St. 466, that suicide will avoid a policy, although there is no condition to that effect in the policy, is unsound, p. 586.

Distinguished and overruled in Ritter v. Mutual Life Ins. Co., 169 U. S. 154, 42 L. 698, 18 S. Ct. 305, 306, holding insured's suicide while sane avoids policy independently of proviso. Denied in Supreme Commandery, etc. v. Ainsworth, 71 Ala. 446, 46 Am. Rep. 336, holding suicide while sane avoids policy independently of proviso.

Insurance.— Provision of life insurance policy against payment, when party "dies by his own hand," attaches where insured intentionally takes his own life while in possession of ordinary reasoning faculties, p. 591.

Cited and followed in Insurance Co. v. Rodel, 95 U. S. 241, 24 L. 435, Ritter v. Mutal Life Ins. Co., 169 U. S. 154, 42 L. 698, 18 S. Ct. 305, and S. C., when in Circuit Court of Appeals, 70 Fed. 959, 28 U. S. App. 612, 42 L. R. A. 587, sustaining charges to substantially same effect; Wolf v. Mutual Benefit Life Ins. Co., 30 Fed. Cas. 408, charge in accordance with syllabus rule.

Insurance. There is no difference between expressions, "take his own life," 64 commit suicide" or "die by his own hands in proviso in life insurance policy against payment in such cases, p. 591.

Cited and followed in Manhattan Life Ins. Co. v. Broughton. 109 U. S. 130, 27 L. 881, 3 S. Ct. 104, and Moore v. Connecticut, etc., Ins. Co., 1 Flipp. 364, F. C. 9,755, both holding "die by suicide” and “die by his own hand ” equivalent expressions; Supreme Commandery v. Ainsworth, 71 Ala. 449, 46 Am. Rep. 339, holding the exception is of suicide; Grand Lodge v. Wieting, 168 Ill. 419, 61 Am. St. Rep. 129, 48 N. E. 62, holding the different expressions synonymous; Mutual Life Ins. Co. v. Wiswell, 56 Kan. 768, 44 Pac. 998, 35 L. R. A. 266, and n., to the same point.

Insurance.- Proviso against payment of life insurance does not attach where death caused by assured's voluntary act, knowing and intending that death would result, but unable to understand moral character or general nature, consequence and effect of the act, or while victim of insane impulse, p. 591.

Cited and followed in Insurance Co. v. Rodel, 95 U. S. 241, 24 L. 435, Manhattan Life Ins. Co. v. Broughton, 109 U. S. 127, 128, 129, 130, 131, 27 L. 880, 881, 882, 3 S. Ct. 102, 103, 104, 105, Connecticut Life Ins. Co. v. Akens, 150 U. S. 473, 474, 37 L. 1149, 14 S. Ct. 157,

1

Moore v. Connecticut, etc., Ins. Co., 1 Flipp. 370, 372, 373, F. C. 9,755, Waters v. Connecticut, etc., Ins. Co., 2 Fed. 894, and Mutual Life Ins. Co. v. Leubrie, 71 Fed. 844, 38 U. S. App. 37, collecting cases, where juries similarly charged, holding cases of suicide while insane not within similar provisos; Accident Ins. Co. v. Crandal, 120 U. S. 531, 30 L. 742, 7 S. Ct. 687, where insured hung himself while insane; Ritter v. Mutual Life Ins. Co., 169 U. S. 149, 42 L. 696, 18 S. Ct. 303, and S. C., when in Circuit Court of Appeals, 70 Fed. 959, 28 U. S. App. 612, 42 L. R. A. 587, sustaining substantially similar charge; Berger v. Pacific, etc., Ins. Co., 88 Fed. 242, holding exception of intentional injuries inflicted by * any other person" did not include shooting by lunatic; Supreme Commandery, etc. v. Ainsworth, 71 Ala. 448, 449, 46 Am. Rep. 338, 339, holding unintentional, involuntary killing not within proviso; Life Assn., etc. v. Waller, 57 Ga. 537, construing proviso; Grand Lodge v. Wieting, 168 Ill. 420, 61 Am. St. Rep. 130, 48 N. E. 62, collecting cases, and Michigan, etc., Ins. Co. v. Naugle, 130 Ind. 85, 29 N. E. 395, collecting cases, as to when proviso inapplicable; Wolf v. Mutual Benefit Life Ins. Co., 30 Fed. Cas. 408, charge in accordance with syllabus rule; Phillips v. Louisiana, etc., Ins. Co., 26 La. Ann. 406, 21 Am. Rep. 550, no responsibility attaches where deceased was insane when he committed suicide; Blackstone v. Standard Life, etc., Ins. Co., 74 Mich. 609, 614, 42 N. W. 161, 163, 3 L. R. A. 493, 495, and n., suicide by person non compos not within forfeiture clause of policy; Scheffer v. Nat. Life Ins. Co., 25 Minn. 537, charge in accordance with syllabus rule, correct; De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 235, policy not void where suicide was utterly bereft of reason at time; Schultz v. Insurance Co., 40 Ohio St. 223, 48 Am. Rep. 680, onus upon company to show that death was within proviso; Connecticut, etc., Ins. Co. v. Groom, 86 Pa. St. 96, 27 Am. Rep. 690, to same effect; Hathaway v. National Life Ins. Co., 48 Vt. 354, charge embracing syllabus rule, correct. Cited, arguendo, in Mut. Benefit Life Ins. Co. v. Daviess, 87 Ky. 550, 9 S. W. 815, Brower v. Supreme Lodge Nat. Reserve Assn., 74 Mo. App. 495, Spruill v. Northwestern Mut. Life Ins. Co., 120 N. C. 143, 27 S. E. 40, and Lache v. State, 22 Tex. App. 309, 58 Am. Rep. 642, 3 S. W. 543, where insanity was urged as defense to charge of murder; Pierce v. Travelers' Life Ins. Co., 34 Wis. 395. Cited also in M'Glother v. Provident, etc., Co., 89 Fed. 691, 60 U. S. App. 715, dissenting opinion, majority holding death from accidentally taking poison within exception of “death resulting from poison;" De Gogorza v. Knickerbocker, 65 N. Y. 248, arguendo, in dissenting opinion. See the following valuable notes, 59 Am. Dec. 489, 491, 492, 493, 494, 19 Am. Rep. 629, 50 Am. St. Rep. 443; also 89 Am. Dec. 748, note.

Distinguished in Bigelow v. Berkshire Life Ins. Co., 93 U. S. 286, 23 L. 919, Chapman v. Republic Life Ins. Co., 6 Biss. 240, F. C. 2,606, Kelly v. Mutual Life Ins. Co., 75 Fed. 642, and Scarth v.

Security, etc., Life Society, 75 Iowa, 347, 39 N. W. 659, where proviso made expressly applicable, whether insured "sane or insane; " Riley v. Hartford, etc., Ins. Co., 25 Fed. 316, where "feloniously or otherwise" held equivalent to suicide sane or Insane."

Explained in Adkins v. Columbia Life Ins. Co., 70 Mo. 29, 31, 33, 35 Am. Rep. 412, 413, 414, where policy limited liability where death of assured was caused "by his own act or intention, whether sane or insane; Sparks v. Life Indemnity Co., 61 Mo. App. 113, where policy stipulated that it should be void in case of suicide, assured being either sane or insane. Denied in Knickerbocker Life Ins. Co. v. Peters, 42 Md. 419, declaring language of principal case, upon this point, mere obiter; Van Zandt v. Mutual, etc., Ins. Co., 55 N. Y. 178, 179, 14 Am. Rep. 221, 222, to the same effect.

Miscellaneous.- Cited and distinguished in Accident Ins. Co. v. Crandal, 120 U. S. 532, 30 L. 743, 7 S. Ct. 688, holding insanity not "bodily infirmity or disease," within meaning of exception in policy. Cited in Supreme Commandery v. Ainsworth, 71 Ala. 449, 46 Am. Rep. 339, holding burden of proof of insanity on party alleging it; Patterson v. Natural Premium Life Ins. Co., 100 Wis. 123, 69 Am. St. Rep. 902, 75 N. W. 982, 42 L. R. A. 258, arguendo.

15 Wall. 591-600, 21 L. 193, BROWN v. KENNEDY.

War-Seizure.- Court has no jurisdiction to decree confiscation of anything not brought within its jurisdiction, by seizure of marshal, p. 597.

Cited and principle approved in Pike v. Wassell, 94 U. S. 712, 24 L. 309, holding seizure necessary to give court jurisdiction for condemnation of property.

Cited in Kirtland v. Hotchkiss, 42 Conn. 445, arguendo; also in Fairfax v. Alexandria, 28 Gratt. 26.

War.- Marshal's return in confiscation proceedings under act of 1862, that he had attached bond, mortgage and credit, conclusively establishes that seizure was made and that subject thereof was within jurisdiction of court, and bars foreclosure on mortgage, p. 597.

Cited and principle applied in Schneider v. Fergusen, 77 Tex. 576, 15 S. W. 155, holding sheriff's return cannot be attacked in collateral suit.

15 Wall. 600-610, 21 L. 254, HOLDANE v. SUMNER.

Landlord and tenant. Lessor, who fails to distrain for unpaid rent until after prescribed fifteen days, by reason of a stay of proceedings against tenant issued out of proper court, does not lose his rights though such stay was afterwards annulled as improperly granted, pp. 605–610.

No citations.

15 Wall. 610-624, 21 L. 212, GUNN v. BARRY.

Constitutional law.- Congress cannot, by authorization or ratification, give the slightest effect to a State law or Constitution which is in conflict with the Federal Constitution, p. 623.

Cited with approval in In re Rahrer, 140 U. S. 560, 35 L. 576, 11 S. Ct. 869, in affirming validity of act making liquors imported into any State or territory subject to laws thereof relating to sale of such articles; Moody v. Bibb, 50 Ala. 250, holding invalid an act of the legislature sanctioning an unauthorized conversion of probate estates. Approved, arguendo, in In re Jordon, 13 Fed. Cas. 1082, without special application.

Constitutional law.- A State can no more impair an existing con tract by a constitutional provision than by a legislative act, p. 623. Cited and applied in United States v. Jefferson County, 1 McCrary, 362, 5 Dill. 316, F. C. 15,472, holding constitutional amendment restricting power of municipalities to levy taxes invalid when it operated to prevent the payment of bonds previously contracted; Fail v. Presley, 50 Ala. 346, holding emancipation proclamation had no effect on a cause of action which accrued before it was issued: American Building, etc., Assn. v. Rainbolt, 48 Neb. 450, 67 N. W. 499, where act relating to building and loan associations was held void, in so far as it sought to declare illegal, agreements existing at time of its enactment; Shuler v. Bull, 15 S. C. 433, holding constitutional provision giving property of married woman to her as her separate estate did not affect vested marital rights of her husband; Grigsby v. Peak, 57 Tex. 149, holding State Constitution cannot divest rights which have vested by limitation; Speidel v. Schlosser, 13 W. Va. 700, holding constitutional an act allowing homestead exemption, which provided it should not affect existing contracts; dissenting opinion in Louisiana v. Jumel, 107 U. S. 761. 27 L. 465, 2 S. Ct. 169, majority holding State could not be sued on its bonds. Cited, arguendo, in Grand Lodge of Masons v. New Orleans, 44 La. Ann. 666, 11 So. 151, as authority for holding a constitutional provision a law within meaning of clause in Federal Constitution forbidding any State to enact laws, the effect of which is to impair the obligation of a contract; with approval, Voorhies v. Mayor, 70 Tex. 339, 7 S. W. 682; In re Kerr, 14 Fed. Cas. 386, State v. Hickman, 9 Mont. 379, 23 Pac. 748, 8 L. R. A. 405, Lamb v. Mason, 50 Vt. 350, and Huffman v. Leffell, 32 Gratt. 45, without special application.

Explained in In re Jordan, 13 Fed. Cas. 1082, and In re Smith, 2 Woods, 460, F. C. 12,996, affirming validity of bankruptcy act of 1873, and holding Congress, by virtue of power given it to pass a bankruptcy law, has authority to impair obligation of a contract. Constitutional law.- Legal remedies for enforcement of contract, which belong to it at time and place where made, are part of its obligation, p. 623.