« AnteriorContinuar »
laws for the general enforcement of contracts in for a divorce from the marriage contract on the ground the States ? Certainly not.”
of adultery, must be tried by a jury, unless a jury There can be no greater or more dangerous mis
trial be waived," or a reference be consented to by the
parties, or ordered by the courts in the various cases take in the interpretation of the Constitution than
set forth in sections 20 and 271. Let us now for a the assumption that, where a restraint is imposed few moments see whether the commissioners were conupon State power and Congress is authorized to sistent in inaugurating their reforms, when the conenforce the same, the whole subject-matter, referred
stitution of this State and of the United States deto for the purpose of describing the restraint, is
manded the retention of the trial by jury.
The chief ground upon which they based their arguthereby brought within the legislative jurisdiction
ment who believed the trial by jury an impossibility of Congress. This one assumption, made in refer
under a common system of procedure was, that the ence to the rights of life, liberty and property, all abolition of the forms of pleading necessary to such of which are fundamental, may be expanded in its an union, effectually did away with the production of application until it would logically vest nearly all
an issue, and the separation of the issues of law and the powers of the State governments in Congress,
fact, thought to be so vital to the common-law system
of procedure. In previous sections of this essay, howunder color of enforcing a restraint upon State
ever, we have shown, we think, that the production power. State citizenship, as defined, regulated and of an issue, according to the technical course of the protected by State authority, would disappear alto- | common law, failed completely in diminishing the gether, except as Congress might choose to withhold questions of fact and in disentangling them from the exercise of its powers. The tendency of Con
questions of law, and served only to retard the par
ties in the preparation of a cause for trial and to congress, especially since the adoption of the recent
fuse the judge and jury upon the trial itself. So amendments, has been to overstep its own bounda
then, it that system of jury trial continue to prevail, ries and undertake duties not committed to it by when what its chief defenders supposed to be its only the Constitution. The omissions and failures of support had never existed, or had entirely lost its origState governments cannot be safely corrected by
inal significance, surely when technical rules and forms any Federal legislation which assumes and exercises
had been abolished and the rubbish of procedure had
been removed, it would flourish with all its pristine powers not granted to Congress. The remedy is the
force and vigor. greater evil of the two.
That force and vigor, were examples necessary, were
never lost in Louisiana and Scotland, where either THE NEW YORK SYSTEM OF PROCEDURE.
petition and answer, or summons and defense, consti
tute the only pleadings known. Subsequent practice ITS THEORY, HISTORY AND PROGRESS IN THE UNITED
has proved the correctness of the commissioners' STATES, ENGLAND AND INDIA.
views; for, though the reform they inaugurated has
never retrograded, with the exception of the cases (Continued.)
where its adoption, under whatever system of pracLAVING sufficiently discussed the subject of plead-tice, bas been cumbrous or impossible, the trial by II ing, we proceed now to speak of the mode of trial | jury exists unimpaired. under the civil action. It was, for a long time previ- Mr. Pomeroy, it is true, seems to hold to the view, ous to the adoption of the Code, an open question that though an absolute unity in judicial methods for whether there could be such an union of legal and the enforcement of civil rights and duties as possible, equitable remedies as the Code proposed, unless at the such an absolute unity is practically impossible so long same time there should be an absolute correspondence as the jury trial is required in certain classes of cases, in the mode of trial of all causes.
and is dispensed with in others; since that institution That the trial by jury must continue was an absolute creates an essential difference in the manner of connecessity. Section 2 of article I of the constitution ducting actions, and in their frame work, which canof our State provided, that the trial by jury, “unless not be obliterated by any statutory declaration. The waived, in all cases in which it bas been heretofore remark is pregnant with thought; but we must first used, shall remain inviolate forever;” and article VII consider whether such an object of absolute unity in of the amendments of the constitution of the United procedure was ever contemplated by the commissionStates prescribed that, “In suits at common law, ers or the legislature. We must again refer to the wbere the value in controversy shall exceed twenty principle, which we have before suggested, always acdollars, the right of trial by jury shall be preserved.” tuated the codifiers in their work - the abolition of
With many persons these provisions of our cousti mere form, but the preservation intact of all substance tutions formed a great, well-vigl. insuperable difficulty of the common-law procedure. Now, when actions in the application of the principle which blended legal at law and suits in equity were abolished, it was proand equitable procedure to the trial of causes under posed, we believe, that those arbitrary rules should be the civil action. To the minds of the commissioners, abolished, which demanded, without a shadow of however, there seemed little doubt upon the subject; reason, that actions should be divided into such and and Louisiana and Scotland were cited by them as ex such forms, and rights enforced now in one court, now amples of the feasibility of the blending of legal and in another, not that thereafter there should be an abequitable procedure, leaving the trial by jury intact. solute correspondence of procedure under the new The mode of procedure in our United States courts civil action, but that, irrespective of technical forms, also influenced them in their action. The Code then relief should be given, did the facts alleged constitute provides, that "an issue of fact for the recovery of a good cause of action, whether formerly of legal or money only, or of specific real or personal property, or equitable cognizance, or of both. The commissioners themselves, in their first report, said: “It is not, there whom it was and still is a principle to keep justice infore, the exact correspondence of all the proceedings exorably destitute of evidence from this its most in all cases that we mean when we speak of a uniform natural, most instructive, and oftentimes sole, and course of procedure. Nor indeed is such correspond. thence indispensably needful source. A defendant ence either desirable or possible; but we mean a gen (suppose) is in court.-Is this or is it not your handeral uniformity in the different cases, so that, while writing?' My lord chief-justice-- will he put any such the particular circumstances of each may receive such question ? Not he indeed. Will he suffer it to be put remedy as they require, the outline of the proceedings to him? As little. * * * Considering how unin all may be the same, and a kuowledge of the course pleasant it would be to a dishonest man, with an honpursued in one may serve as a guide to the other." est man's money in his hands, to part with it, still
Said Judge Reynolds, in a most ably-reasoned opip | more so to a malefactor to do any thing that could ion in Wright v. Wright, 54 N. Y. 443, “When, as in contribute to his punishment - considering all this, our system, & single court has jurisdiction both in law and in all sincerity sympathizing with these their partand equity, and administers justice in a common form | ners and best friends - conscience in their tender of procedure, the two jurisdictions of necessity be- | hearts revolts at any such cruelty. Thus is it with the come to some extent blended. This must be espe common-law branch of the firm. Somewhat less sencially the result where the forms of pleading and pro- sitive are the nerves of the equity branch. Evidence, cedure are alike." And, after citing the example of it has brought itself to draw from this so reluctant the United States courts and a remark of Lord Redes- source. But it is on one condition, that years be emdale, he adds: “It is enough to know, that in our ployed in doing that which might be done so much courts at the present day justice may be administered better in a few hours, and pounds by hundreds and without regard to mere form. Certain forms are thousands in doing that which might be so much betneedful to be preserved, but they must not obstruct ter done at no expense.” the path to exaot justice, and if they do they will be We have ventured to quote the above-cited remarks swept away." The trial by jury, transmitted to us as at some length because they express so clearly and a birthright from ages long gone by, has, more than forcibly the idea we are aiming to convey. The arguany other institution, been the bulwark of English ments of both these great jurists are directed more liberty; and we believe the codifiers thought it was particularly against the exclusion of parties to a suit one of those "forms," if you please, “needful to be from testifying; but it is easy to understand how preserved.” But if in the future it is found to be an they apply also to the disability of persons as witimpediment to the further development of jurispru nesses who had a direct pecuniary interest in the dence, and to "obstruct the path to exact justice," result of a trial. There was, however, an argument in with the proper constitutional sanction the application the mouths of common-law judges and advocates of that principle of progress which originated and from time out of mind, and which retained nearly all fashioned the Code, would sweep away forever this its force at the time the commissioners began their legacy of the common law.
work. It was, that the admission of testimony from Nearly all the great changes introduced by our eys parties to a suit, or persons directly interested in its tem of procedure had either originated with the radi result, would exercise an evil influence upon such cal minds of the commissioners and the framers of the parties and persons, and upon society at large, which constitution of 1846, or had been agitated within ten or would more than off-set any advantage which might fifteen years before the adoption of our Code. We are be gained by the innovation. In short, the inducenow, however, to speak of a subject, whose injustice had ment to testify falsely would be too great to be overbeen recognized and inveighed against for a century come. The argument, it will be seen, would apply past, but which no legislature had been venturesome equally well to courts of equity, where, however, the enough to reform. We refer to the mode of proof in | justness of the rules of evidence was unquestioned. the trial of causes at law, and immediately to the cus But this aside, it seems strange that the argument tom of excluding the testimony of parties to, or per could ever have been strong. It seems a miserable sons having a direct interest in, an action from the satire on the dignity and honor of manhood to believe courts of common law.
that interest in the event of a trial would overcome Blackstone, stigmatized as the ever-ready apologist the dictates of truth and honesty. The old fashioners and not unfrequent vindicator of every thing which of our common law must have recognized how such he found existing in the common law, nevertheless a rule of suspicion, if made universal, would destroy anticipated many jurists who long after clamored so irreparably that confidence between man and man loudly for the reform of abuses. Upon the subject which is the basis of so many transactions, and how of which we are now speaking, he says: “Complete dis- soon under such conditions the wheels of commercial covery by the oath of the parties has long been intro life and activity would stand still. It seems, too, an duced in our courts of equity; and it seems the height open question which of the two courses is the worse of judicial absurdity, that in the same cause, between bringing the parties before the court, and giving them the same parties, in the examination of the same facts, the opportunity to perjure themselves, or to permit a discovery by the oath of the parties should be per them to commit perjury in silence by shutting their mitted on one side of Westminster Hall and denied mouths, when an admission from them would alter on the other; or that judges of one and the same what otherwise must be an incorrect decision. We court should be bound by law to reject such a species must bear in mind too, that the interest which disof evidence if attempted on a trial at bar, but when qualified a person from testifying was a pecuniary one sitting the next day as a court of equity should be entirely. Fathers might testify for sons, sons for obliged to hear such examination and to found their fathers, and we know that the ties of relationship and decrees upon it."
affection are stronger than associations of pecuniary Says Bentham, in his “ Petition for Justice,” in interest. The supporters of this arbitrary rule must his peculiar style: “Think of a set of judges with have seen that the inducement thus negatively to com
mit perjury with no hardship attached, but which to any personal transaction or communication between course the law seemed to countenance, would be such witness and a person at the time of such examigreater than when the perjured witness could be nation deceased, insane, or lunatic, against the execusubmitted to a searching cross-examination, and when tor, administrator, heir-at-law, next of kin, assignee, the penalty of the law would follow swiftly upon the legatee, devisee, or survivor of such deceased person, heels of discovery.
or the assignee or committee of such insane person or Nevertheless, the position of those who argued in lunatic." * * * With this qualification, then, we favor of the retention of the common law regulating may say, that of the four common-law rules rejecting evidence, seems to have been well taken; for down to (1) the testimony of parties, (2) of persons deficient in 1843 no serious reform was ever attempted in this understanding, (3) of persons insensible to the obligadirection. In that year was passed in England Lord tions of an oath, and (4) of persons having some pecuDenman's act, which Brougham styled “the greatest | niary interest in the matter in issue, only the second measure that has ever been carried under the head of and third exist in their entirety. judicial procedure since the statute of frauds,” an | One point more needs mention. Section 389 of our interval of about two hundred years. The evil must Code has abolished the old bill of discovery; and the indeed have been widely felt to authorize so great a Court of Appeals, after some discussion, have decided lawyer as Brougham to make this remark, when this in a late case, Glenney v. Stedwell, that the plaintiff has, act in reality touched only one position of the abuse; by sections 389 and 390, all the benefits which might for, although allowing the testimony of witnesses formerly be secured by the bill of discovery so cominterested in a suit to be received, it excluded that of pletely, that a plaintiff in an action pending may the parties to it, or of the persons for whose immediate examine the adverse party on oath, after the service benefit it was prosecuted or defended. In our Code, on him of a summons, and for the purpose of obtainreported in 1848, the commissioners, whose reforms ing the facts on which to frame a complaint. The were so radical and sweeping in other directions, as principle underlying these reforms seems to be, that respects evidence, went no further than the provisions parties to, or persons interested in, a suit are no longer of the English act of 1843. In section 351 we find —"No to be excluded from testifying, but they are to be person offered as a witness shall be excluded by reason brought forward, their interest shown, and attention of interest in the event of the action. But this sec drawn to this fact, so that their evidence may be the tion shall not apply to a party to the action, nor to more carefully scrutinized. In fine, the question of any person for whose immediate benefit it is prose competency determined by the court, has become a cuted or defended.” In their second report, although question of credibility for the jury. numerous amendments were made, and the Code quite Finally, it remains for us to consider the mode of re-fashioned, this section remained undisturbed ; and relief under the civil action. We have already shown, it was not until the following year, when the civil code that in the same action legal and equitable relief could of procedure was reported, that any serious change was be secured; and we must now speak of the real differmade as to this question of evidence. In that code, ence which before existed between such legal and which was never acted upon by the legislature, in the equitable relief. The court of equity had the power full digest of the law of evidence which it contained, to bring before it all parties, however indirect their it was provided that no disability should attach to any | interest, for an investigation and adjustment of their witness on the ground of immediate benefit in the several claims. The decree might then be pronounced event of the action, or of being a party to such action. in favor of one plaintiff and against another, or in uneThis code, as we have just said, was never acted upon qual shares to the plaintiffs, and the same liberal rule by the legislature, and the law of evidence remained applied to the defendants. In the courts of law only substantially uncbanged for several years. In the those whose interest in the suit was immediate and meantime, England in 1851, and in our own country direct could be made parties; and the interest of the Connecticut in 1849, Minnesota in 1851, Vermont in plaintiffs and the liability of the defendants being 1852, and Ohio in 1853, had acted upon the suggestion considered joint, the judgment must be pronounced of our codifiers in this unadopted code. In 1854, how for all the plaintiffs or all the defendants alike. A ever in our own State, a petition, signed by Judges judgment in favor of oue plaintiff and against another, Roosevelt, Duer, Bosworth, and Daly, and by our or against one defendant and in favor of another, was, representative lawyers, W. Curtis Noyes, Benjamin F. with a few exceptions (chiefly statutory), unknown to Butler, David Dudley Field, and others, was presented the common law. Now the commissioners proposed to the legislature. Its closing section ran: “Your to adopt the more sensible and just rules of the courts memorialists therefore pray that a law may be passed of equity, for the judgment under the Code. After in this State, declaring that parties to actions, and prescribing, that generally he who has the right must persons for whose immediate benefit they are prose pursue the remedy, excepting as otherwise provided in cuted or defended, may be witnesses in their own section 113, in sections 117 and 118 we find that, as a bebalf or otherwise, in the same manner as if they general rule, all persons having an interest in the were not such parties or persons." Yielding to this subject of the action, and in obtaining the relief request, the legislature enacted a law meeting the demanded, may be joined as plaintiffs, and any person requirements of this memorial; and so the law stands may be made a defendant who has or claims an interest now as is variously prescribed in chapters 6 and 7 of in the controversy adverse to the plaintiff, or who is a title XII of our present Code. The last remark needs necessary party to a complete determination or settlesome qualification, for in section 399 it is provided, ment of the questions involved therein. * * * The that “No party to an action or proceeding, nor any latter provision as to defendants is carried so far, that person interested in the event thereof, nor any person if one who should be a plaintiff refuses to join in the from, through, or under whom any such party or inter-action, he may be made a party defendant, provided ested person derives any interest or title, by assignment the reason be stated in the complaint. In section 122 or otherwise, shall be examined as a wituess in regard it is further provided, that “when a complete determi
nation of the controversy cannot be had without the per cent is pretty heavy, but I guess we will have to presence of other parties, the court must cause them stand it, as I do not know where we can do better at to be brought in " * *; while by section 144 advantage present. can be taken by demurrer by the defendant of the fact,
“Yours, etc., “EAMES & COOLEY." that there is a defect of parties, plaintiff or defendant. On the 28th of October, Beach mailed a letter to In thus adopting the rules of the courts of equity, it | Ducat, asking him to send a “ticket of insurance for cannot be supposed that the Code has succeeded in the amount applied for ou the mill.” On the 29th, the making clear in all cases who should be parties to the order for insurance was countermanded by Beach, by action. Equity pleaders found this a most difficult telegraph, the mill having been burned in the interval. task to encounter and master; and all the Code seems Ducat was on the point of sending the policy of insurto have done in this direction to lessen the difficulty is ance when the telegram from Beach was received. to allow only those who have been made parties, or The question was, whether there was an insurance those claiming under them, to be affected by the effected. The court, reversing the decision below,
ment. What that judgment must necessarily be, decide that there was, saying: after these rules as to parties, follows of course; and | Supposing this to be the meaning of the correspondwe can now understand how under our Code“ judg ence, the next question is, whether it had the effect of ment may be given for or against one or more of seve creating a contract. Eames had put in an applicaral plaintiffs, and for or against one or more of several tion for insurance. It was made out in the regular defendants; and it may determine the ultimate rights form. The property was fully described; the amount of the parties on each side as between themselves, and of insurance was named, and the rate of premium at it may grant to the defendants any affirmative relief to five and one-half per cent was proposed to be paid. which he may be entitled."
Every thing was satisfactory to the general agent, ex(To be continued.)
cept the rate of premium. No question was made about any thing else. The whole subsequent corre
spondence related to that alone. The agent required WHEN CONTRACT FOR FIRE INSURANCE IS six and one-half per cent instead of five and one-half; CONSUMMATED- CONTRACTS BY LET and finally, as we construe the letter of Eames, he TER-REPRESENTATIONS AS TO
(Eames) agreed to, and accepted this modification. TITLE AND INCUMBRANCES.
Supposing all the parties to be acting in good faith, as
they were bound to act, had he not a right to suppose THE case of Eames v. Home Insurance Company of
that the agreement was concluded, and that the risk I New York, recently decided by the Supreme Court
was taken by the defendant? We do not well see how of the United States, involved some interesting ques
this conclusion can be avoided. He had not paid the tions on insurance law. Plaintiffs owned a flouring mill
premium, it is true; but it is shown that this was not at Staunton, Ill., which had been insured by the defend
required until the policy was made out and delivered. ant, the application for insurance having been made,
It had not been required of Cooley in 1870, and yet the and the insurance effected, through one Beach, a local
policy in that case, when issued, was made to run agent of defendant, at Bunker Hill, II. Beach had
from the date of the application some two weeks prior no authority to take risks on extra hazardous property
to its issue, and of course, covered the risk during that in which class the mill in question belonged, but one
antecedent period. Ducat, the defendant's general agent at Chicago, had
If parties could not be made secure until all the such authority. On the 12th of October, 1872, plaintiffs
formal documents were executed and delivered, especapplied to Beach for insurance upon the mill. Beach thereupon wrote to Ducat this letter, inclosing the
ially where the insuring company is situated in a differ
ent State, the beneficial effect of this benign contract application:
of insurance would often be defeated and rendered "DEAR SIR-I inclose app. for ins. which you have unavailable. As said by Mr. Justice Field in the case carried for two years, and was not renewed in Feb'y,
of The Insurance Company v. Colt, 20 Wall. 567, “it because I asked 572, (you were carrying it at 5 per would be impracticable (for a company) to carry on its cent). They now want to insure again. The other
business in other cities and States, or at least the busilarge mill in Staunton has lately burned, which is, I ness would be attended with great embarrassment and suppose, the reason. I have not learned the particu
inconvenience, if such preliminary arrangements relars, but some think the owners burned it."
quired for their validity and efficacy the formalities Ducat, on the 14th of October, wrote to Beach, gay
essential to the executed contract. The law," he ing, that the rate on this risk would not be less than
continues, “distinguishes between the preliminary 6% per cent, which plaintiffs probably would not pay.
contract to make insurance or issue a policy and the Some correspondence was had between Beach and
executed contract or policy. And we are not aware Ducat, the former endeavoring to procure a reduction
that in any case, either by usage or the by-law of any of the rate which the latter refused to give. Beach
company, or by any judicial decision, it has ever been then informed plaintiffs, by letter, that 6% was the
held essential to the validity of these initial contracts lowest rate. The same letter inclosed an application
that they should be attested by the officers and soal of for additional insurance on the property in another
the company. Any usage or decision to that effect company, where the rate was six per cent. That would break up, or greatly impair the business of inapplication was filled out and returned by plaintiffs, surance as transacted by agents of insurance comtogether with this letter:
In regard to another question raised in the case the " STAUNTON, ILL., October 25, 1872.
court says: "Mr. JAMES A. Beach, Bunker Hill, Ill.
But it is objected, in the next place, that the con"DEAR SIR - I believe I have answered all the ques- | tract, if one was made, was not complete and precise tions necessary, and to the best of my knowledge. 6% 1 in its terms; that it did not state the period of time
during which the risk was to continue, and did not are being perfected and traysmitted. It is sufficient if state what kind of a policy (of two or three different one party proposes to be insured, and the other party kinds which the Home Company used) Eames wished agrees to insure, and the subject, the period, the amount to have. It does appear that the application, which and the rate of insurance is ascertained or understood, was signed on the 12th of October, did not (as is and the premium paid if demanded. It will be preusually done) call for a statement of the period of sumed that they contemplate such form of policy, coninsurance. It was one of the company's own printed taining such conditions and limitations, as are usual blanks, and the probability is that the reason this item in such cases, or have been used before between the was not inserted was the almost universal practice of parties. This is the sense and reason of the thing, and taking ordinary insurance against fire for a year. any contrary requirement should be expressly notified Nothing else seems to have been in the minds of the to the party to be affected by it. parties. The former insurance on the property had The defendant objected that the application did not been for that period. The bill states that Eames correctly set forth the title of plaintiff in the property applied to Beach for a contract of insurance and policy insured, or the nature of the incumbrances therein. on the mill for a year, and this is not denied in the The court say: answer; the application to the other companies, the As to the objection that the application in this case Phoenix and the Hartford, seem to have been for a does not truly set forth the title of the complainants year. Mr. Beach in his testimony, when asked by the and the amount and nature of the incumbrances on counsel of defendant whether any thing had been the property, and the amount of insurance in other said as to the length of time the complainants wanted companies, it is sufficient to say that the evidence insurance in the Home, promptly answered, “If I abundantly shows that all the facts were fully and mistake not, the application states for one year;'" frankly communicated to Beach, the agent of the comand was only convinced to the contrary after an in pany, and were indeed known to him before; and that spection of the document. The premium is constantly he wrote down the answers according to his view of spoken of by the witnesses and in the letters as so their bearing and legal effect, Eames relying entirely much per cent absolutely, six and one-half per cent, on his experience in such matters. There is no reason without adding “per annum;" and yet we know that to suppose that either Eames or Beach did not act in a year's premium was meant. It may be said that entire good faith in the transaction. And, indeed, it this is the usual mode of speaking when rate per cannot be pretended that the facts were not substanannum is intended. This is undoubtedly true when tially as represented in the application. The coman ordinary policy for a year is the subject of discus plainants are represented to be the owners of the propsion. But when insurance for a fractional part of a
erty which is stated to be subject to a mortgage for year, or any unusual period, is proposed or spoken of, $6,000. The fact was that they had purchased the it is not the customary mode of speaking. It is then
property for $12,000, and had paid $6,200 of the purusual to add the words “per annum " in order to avoid chase-money, the vendor having a lien for the balance mistake. We think it perfectly manifest from all the of $5,800, but no deed had ever been given. So that, evidence taken together, that the parties meant and in truth, the complainants did not hold the legal title, intended an insurance for a year, and had nothing else although they had an equitable one; and had not given in their minds. This is the inference to be drawn | a mortgage, although the vendor's lien was equivalent from all their conduct, conversations, and corre to one. In another answer, however, explaining the spondence; and we should be sticking in the bark to mortgagee's interest, it is stated expressly to be a ignore it.
“lien on mill to secure payment of sale." As the exThe plea that no time for the continuance of the act facts were communicated to the agent, and he took
act facts were communicated to the nor insurance was stipulated for, is evidently a mere after the responsibility of stating them in the way he did, thought.
leading the applicant to suppose that it was all right, There is no difficulty as to the time when the risk we think it would be great injustice to turn him out was to commence. It was the practice of the defend of court now for this inexact method of statement. ant, as it is of most if not all other companies, to ante According to the views expressed by this court in the date the policy to the time of making the application, case of Insurance Co. v. Wilkinson, 13 Wall. 222, and which, in this case, was on the 12th day of October, other more recent cases, the defendant was concluded 1872. This practice is more beneficial to the com by the act of its agent. The reference to collateral panies than to the insured. They are not liable until insurances in other companies is subject to the same the contract is completed, and if a loss occurs before consideration. The insurances were being applied for its completion they have nothing to pay; and yet they through this very agent who wrote the answers, and get the benefit of the premium for this period when who knew the whole facts, and between whom and ever the contract is completed.
the general agent they had been referred to in their As to the plea that the contract does not specify correspondence. The defense on this ground is utterly what kind of a policy was desired, it does not appear destitute of equitable consideration. that the complainants had any knowledge or notice | After giving due attention to the pleadings and evithat the defendant issued different kinds of policies. | dence in this case we are forced to the conclusion that As Eames justly said, he supposed (as he had a right to a contract for a policy of insurance was fairly made, suppose) that they would get the same kind of policy and that a decree should have been rendered for the which had been issued on the property before. If no complainants declaring them entitled to a policy of preliminary contract would be valid unless it specified insurance to be issued by the defendant, in the usual minutely the terms to be contained in the policy to be form in such cases, for four thousand dollars on the issued, no such contract could ever be made, or would | mill and machinery of the complainants, situated at ever be of any use. The very reason for sustaining | Staunton in the county of Macoupin, Illinois, to run such contracts is, that the parties may have the benefit and be in operation for one year from the 12th day of of them during that incipient period when the papers' October, 1872, at the rate of six and one-half per cent