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laws for the general enforcement of contracts in the States? Certainly not."

There can be no greater or more dangerous mistake in the interpretation of the Constitution than the assumption that, where a restraint is imposed upon State power and Congress is authorized to enforce the same, the whole subject-matter, referred to for the purpose of describing the restraint, is thereby brought within the legislative jurisdiction of Congress. This one assumption, made in reference to the rights of life, liberty and property, all of which are fundamental, may be expanded in its application until it would logically vest nearly all the powers of the State governments in Congress, under color of enforcing a restraint upon State power. State citizenship, as defined, regulated and protected by State authority, would disappear altogether, except as Congress might choose to withhold the exercise of its powers. The tendency of Congress, especially since the adoption of the recent amendments, has been to overstep its own boundaries and undertake duties not committed to it by the Constitution. The omissions and failures of State governments cannot be safely corrected by any Federal legislation which assumes and exercises powers not granted to Congress. The remedy is the greater evil of the two.

THE NEW YORK SYSTEM OF PROCEDURE.

ITS THEORY, HISTORY AND PROGRESS IN THE UNITED STATES, ENGLAND AND INDIA. (Continued.)

HA

AVING sufficiently discussed the subject of pleading, we proceed now to speak of the mode of trial under the civil action. It was, for a long time previous to the adoption of the Code, an open question whether there could be such an union of legal and equitable remedies as the Code proposed, unless at the same time there should be an absolute correspondence in the mode of trial of all causes.

That the trial by jury must continue was an absolute necessity. Section 2 of article I of the constitution of our State provided, that the trial by jury, "unless waived, in all cases in which it has been heretofore used, shall remain inviolate forever;" and article VII of the amendments of the constitution of the United States prescribed that, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." With many persons these provisions of our constitutions formed a great, well-nig insuperable difficulty in the application of the princip'e which blended legal and equitable procedure to the trial of causes under the civil action. To the minds of the commissioners, however, there seemed little doubt upon the subject; and Louisiana and Scotland were cited by them as examples of the feasibility of the blending of legal and equitable procedure, leaving the trial by jury intact. The mode of procedure in our United States courts also influenced them in their action. The Code then provides, that "an issue of fact for the recovery of money only, or of specific real or personal property, or

for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived," or a reference be consented to by the parties, or ordered by the courts in the various cases set forth in sections 270 and 271. Let us now for a few moments see whether the commissioners were consistent in inaugurating their reforms, when the constitution of this State and of the United States demanded the retention of the trial by jury.

The chief ground upon which they based their argument who believed the trial by jury an impossibility under a common system of procedure was, that the abolition of the forms of pleading necessary to such an union, effectually did away with the production of an issue, and the separation of the issues of law and fact, thought to be so vital to the common-law system of procedure. In previous sections of this essay, however, we have shown, we think, that the production of an issue, according to the technical course of the common law, failed completely in diminishing the questions of fact and in disentangling them from questions of law, and served only to retard the parties in the preparation of a cause for trial and to confuse the judge and jury upon the trial itself. So then, if that system of jury trial continue to prevail, when what its chief defenders supposed to be its only support had never existed, or had entirely lost its original significance, surely when technical rules and forms had been abolished and the rubbish of procedure had been removed, it would flourish with all its pristine force and vigor.

That force and vigor, were examples necessary, were never lost in Louisiana and Scotland, where either petition and answer, or summons and defense, constitute the only pleadings known. Subsequent practice has proved the correctness of the commissioners' views; for, though the reform they inaugurated has never retrograded, with the exception of the cases where its adoption, under whatever system of practice, has been cumbrous or impossible, the trial by jury exists unimpaired.

Mr. Pomeroy, it is true, seems to hold to the view, that though an absolute unity in judicial methods for the enforcement of civil rights and duties as possible, such an absolute unity is practically impossible so long as the jury trial is required in certain classes of cases, and is dispensed with in others; since that institution creates an essential difference in the manner of conducting actions, and in their frame work, which cannot be obliterated by any statutory declaration. The remark is pregnant with thought; but we must first consider whether such an object of absolute unity in procedure was ever contemplated by the commissioners or the legislature. We must again refer to the principle, which we have before suggested, always actuated the codifiers in their work-the abolition of mere form, but the preservation intact of all substance of the common-law procedure. Now, when actions at law and suits in equity were abolished, it was proposed, we believe, that those arbitrary rules should be abolished, which demanded, without a shadow of reason, that actions should be divided into such and such forms, and rights enforced now in one court, now in another, not that thereafter there should be an absolute correspondence of procedure under the new civil action, but that, irrespective of technical forms, relief should be given, did the facts alleged constitute a good cause of action, whether formerly of legal or equitable cognizance, or of both. The commissioners

themselves, in their first report, said: "It is not, therefore, the exact correspondence of all the proceedings in all cases that we mean when we speak of a uniform course of procedure. Nor indeed is such correspondence either desirable or possible; but we mean a general uniformity in the different cases, so that, while the particular circumstances of each may receive such remedy as they require, the outline of the proceedings in all may be the same, and a knowledge of the course pursued in one may serve as a guide to the other."

Said Judge Reynolds, in a most ably-reasoned opinion in Wright v. Wright, 54 N. Y. 443, "When, as in our system, a single court has jurisdiction both in law and equity, and administers justice in a common form of procedure, the two jurisdictions of necessity become to some extent blended. This must be especially the result where the forms of pleading and procedure are alike." And, after citing the example of the United States courts and a remark of Lord Redesdale, he adds: "It is enough to know, that in our courts at the present day justice may be administered without regard to mere form. Certain forms are needful to be preserved, but they must not obstruct the path to exact justice, and if they do they will be swept away." The trial by jury, transmitted to us as a birthright from ages long gone by, has, more than any other institution, been the bulwark of English liberty; and we believe the codifiers thought it was one of those "forms," if you please, "needful to be preserved." But if in the future it is found to be an impediment to the further development of jurisprudence, and to "obstruct the path to exact justice," with the proper constitutional sanction the application of that principle of progress which originated and fashioned the Code, would sweep away forever this legacy of the common law.

Nearly all the great changes introduced by our system of procedure had either originated with the radical minds of the commissioners and the framers of the constitution of 1846, or had been agitated within ten or fifteen years before the adoption of our Code. We are now, however, to speak of a subject, whose injustice had been recognized and inveighed against for a century past, but which no legislature had been venturesome enough to reform. We refer to the mode of proof in the trial of causes at law, and immediately to the custom of excluding the testimony of parties to, or persons having a direct interest in, an action from the courts of common law.

Blackstone, stigmatized as the ever-ready apologist and not unfrequent vindicator of every thing which he found existing in the common law, nevertheless anticipated many jurists who long after clamored so loudly for the reform of abuses. Upon the subject of which we are now speaking, he says: "Complete discovery by the oath of the parties has long been introduced in our courts of equity; and it seems the height of judicial absurdity, that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster Hall and denied on the other; or that judges of one and the same court should be bound by law to reject such a species of evidence if attempted on a trial at bar, but when sitting the next day as a court of equity should be obliged to hear such examination and to found their decrees upon it."

Says Bentham, in his "Petition for Justice," in his peculiar style: "Think of a set of judges with

whom it was and still is a principle to keep justice inexorably destitute of evidence from this its most natural, most instructive, and oftentimes sole, and thence indispensably needful source. A defendant (suppose) is in court. Is this or is it not your handwriting?' My lord chief-justice- will he put any such question? Not he indeed. Will he suffer it to be put to him? As little. * * * Considering how unpleasant it would be to a dishonest man, with an honest man's money in his hands, to part with it, still more so to a malefactor to do any thing that could contribute to his punishment - considering all this, and in all sincerity sympathizing with these their partners and best friends-conscience in their tender hearts revolts at any such cruelty. Thus is it with the common-law branch of the firm. Somewhat less sensitive are the nerves of the equity branch. Evidence, it has brought itself to draw from this so reluctant source. But it is on one condition, that years be employed in doing that which might be done so much better in a few hours, and pounds by hundreds and thousands in doing that which might be so much better done at no expense."

We have ventured to quote the above-cited remarks at some length because they express so clearly and forcibly the idea we are aiming to convey. The arguments of both these great jurists are directed more particularly against the exclusion of parties to a suit from testifying; but it is easy to understand how they apply also to the disability of persons as witnesses who had a direct pecuniary interest in the result of a trial. There was, however, an argument in the mouths of common-law judges and advocates from time out of mind, and which retained nearly all its force at the time the commissioners began their work. It was, that the admission of testimony from parties to a suit, or persons directly interested in its result, would exercise an evil influence upon such parties and persons, and upon society at large, which would more than off-set any advantage which might be gained by the innovation. In short, the inducement to testify falsely would be too great to be overcome. The argument, it will be seen, would apply equally well to courts of equity, where, however, the justness of the rules of evidence was unquestioned. But this aside, it seems strange that the argument could ever have been strong. It seems a miserable satire on the dignity and honor of manhood to believe that interest in the event of a trial would overcome the dictates of truth and honesty. The old fashioners of our common law must have recognized how such a rule of suspicion, if made universal, would destroy irreparably that confidence between man and man which is the basis of so many transactions, and how soon under such conditions the wheels of commercial life and activity would stand still. It seems, too, an open question which of the two courses is the worse bringing the parties before the court, and giving them the opportunity to perjure themselves, or to permit them to commit perjury in silence by shutting their mouths, when an admission from them would alter what otherwise must be an incorrect decision. must bear in mind too, that the interest which disqualified a person from testifying was a pecuniary one entirely. Fathers might testify for sons, sons for fathers, and we know that the ties of relationship and affection are stronger than associations of pecuniary interest. The supporters of this arbitrary rule must have seen that the inducement thus negatively to com

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mit perjury with no hardship attached, but which course the law seemed to countenance, would be greater than when the perjured witness could be submitted to a searching cross-examination, and when the penalty of the law would follow swiftly upon the heels of discovery.

Nevertheless, the position of those who argued in favor of the retention of the common law regulating evidence, seems to have been well taken; for down to 1843 no serious reform was ever attempted in this direction. In that year was passed in England Lord Denman's act, which Brougham styled "the greatest measure that has ever been carried under the head of judicial procedure since the statute of frauds," an interval of about two hundred years. The evil must indeed have been widely felt to authorize so great a lawyer as Brougham to make this remark, when this act in reality touched only one position of the abuse; for, although allowing the testimony of witnesses interested in a suit to be received, it excluded that of the parties to it, or of the persons for whose immediate benefit it was prosecuted or defended. In our Code, reported in 1848, the commissioners, whose reforms were so radical and sweeping in other directions, as respects evidence, went no further than the provisions of the English act of 1843. In section 351 we find -"No person offered as a witness shall be excluded by reason of interest in the event of the action. But this section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended." In their second report, although numerous amendments were made, and the Code quite re-fashioned, this section remained undisturbed; and it was not until the following year, when the civil code of procedure was reported, that any serious change was made as to this question of evidence. In that code, which was never acted upon by the legislature, in the full digest of the law of evidence which it contained, it was provided that no disability should attach to any witness on the ground of immediate benefit in the event of the action, or of being a party to such action. This code, as we have just said, was never acted upon by the legislature, and the law of evidence remained substantially unchanged for several years. In the meantime, England in 1851, and in our own country Connecticut in 1849, Minnesota in 1851, Vermont in 1852, and Ohio in 1853, had acted upon the suggestion of our codifiers in this unadopted code. In 1854, however, in our own State, a petition, signed by Judges Roosevelt, Duer, Bosworth, and Daly, and by our representative lawyers, W. Curtis Noyes, Benjamin F. Butler, David Dudley Field, and others, was presented to the legislature. Its closing section ran: "Your memorialists therefore pray that a law may be passed in this State, declaring that parties to actions, and persons for whose immediate benefit they are prosecuted or defended, may be witnesses in their own behalf or otherwise, in the same manner as if they were not such parties or persons." Yielding to this request, the legislature enacted a law meeting the requirements of this memorial; and so the law stands now as is variously prescribed in chapters 6 and 7 of title XII of our present Code. The last remark needs some qualification, for in section 399 it is provided, that "No party to an action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard

to any personal transaction or communication between such witness and a person at the time of such examination deceased, insane, or lunatic, against the executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or committee of such insaue person or lunatic." * * * With this qualification, then, we may say, that of the four common-law rules rejecting (1) the testimony of parties, (2) of persons deficient in understanding, (3) of persons insensible to the obliga. tions of an oath, and (4) of persons having some pecuniary interest in the matter in issue, only the second and third exist in their entirety.

One point more needs mention. Section 389 of our Code has abolished the old bill of discovery; and the Court of Appeals, after some discussion, have decided in a late case, Glenney v. Stedwell, that the plaintiff has, by sections 389 and 390, all the benefits which might formerly be secured by the bill of discovery so completely, that a plaintiff in an action pending may examine the adverse party on oath, after the service on him of a summons, and for the purpose of obtaining the facts on which to frame a complaint. The principle underlying these reforms seems to be, that parties to, or persons interested in, a suit are no longer to be excluded from testifying, but they are to be brought forward, their interest shown, and attention drawn to this fact, so that their evidence may be the more carefully scrutinized. In fine, the question of competency determined by the court, has become a question of credibility for the jury.

Finally, it remains for us to consider the mode of relief under the civil action. We have already shown, that in the same action legal and equitable relief could be secured; and we must now speak of the real difference which before existed between such legal and equitable relief. The court of equity had the power to bring before it all parties, however indirect their interest, for an investigation and adjustment of their several claims. The decree might then be pronounced in favor of one plaintiff and against another, or in unequal shares to the plaintiffs, and the same liberal rule applied to the defendants. In the courts of law only those whose interest in the suit was immediate and direct could be made parties; and the interest of the plaintiffs and the liability of the defendants being considered joint, the judgment must be pronounced for all the plaintiffs or all the defendants alike. A judgment in favor of one plaintiff and against another, or against one defendant and in favor of another, was, with a few exceptions (chiefly statutory), unknown to the common law. Now the commissioners proposed to adopt the more sensible and just rules of the courts of equity, for the judgment under the Code. After prescribing, that generally he who has the right must pursue the remedy, excepting as otherwise provided in section 113, in sections 117 and 118 we find that, as a general rule, all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, and any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. ** * The latter provision as to defendants is carried so far, that if one who should be a plaintiff refuses to join in the action, he may be made a party defendant, provided the reason be stated in the complaint. In section 122 it is further provided, that "when a complete determi

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nation of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in "**; while by section 144 advantage can be taken by demurrer by the defendant of the fact, that there is a defect of parties, plaintiff or defendant. In thus adopting the rules of the courts of equity, it cannot be supposed that the Code has succeeded in making clear in all cases who should be parties to the action. Equity pleaders found this a most difficult task to encounter and master; and all the Code seems to have done in this direction to lessen the difficulty is to allow only those who have been made parties, or those claiming under them, to be affected by the judgment. What that judgment must necessarily be, after these rules as to parties, follows of course; and we can now understand how under our Code "judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights of the parties on each side as between themselves, and it may grant to the defendants any affirmative relief to which he may be entitled."

(To be continued.)

WHEN CONTRACT FOR FIRE INSURANCE IS
CONSUMMATED-CONTRACTS BY LET-
TER-REPRESENTATIONS AS TO
TITLE AND INCUMBRANCES.

THE

HE case of Eames v. Home Insurance Company of New York, recently decided by the Supreme Court of the United States, involved some interesting questions on insurance law. Plaintiffs owned a flouring mill at Staunton, Ill., which had been insured by the defendant, the application for insurance having been made, and the insurance effected, through one Beach, a local agent of defendant, at Bunker Hill, Ill. Beach had no authority to take risks on extra hazardous property in which class the mill in question belonged, but one Ducat, the defendant's general agent at Chicago, had such authority. On the 12th of October, 1872, plaintiffs applied to Beach for insurance upon the mill. Beach thereupon wrote to Ducat this letter, inclosing the application:

"DEAR SIR-I inclose app. for ins. which you have carried for two years, and was not renewed in Feb'y, because I asked 5%, (you were carrying it at 5 per cent). They now want to insure again. The other large mill in Staunton has lately burned, which is, I suppose, the reason. I have not learned the particulars, but some think the owners burned it."

Ducat, on the 14th of October, wrote to Beach, saying, that the rate on this risk would not be less than 6% per cent, which plaintiffs probably would not pay. Some correspondence was had between Beach and Ducat, the former endeavoring to procure a reduction of the rate which the latter refused to give. Beach then informed plaintiffs, by letter, that 6% was the lowest rate. The same letter inclosed an application for additional insurance on the property in another company, where the rate was six per cent. That application was filled out and returned by plaintiffs, together with this letter:

"STAUNTON, ILL., October 25, 1872. "Mr. JAMES A. BEACH, Bunker Hill, Ill.

"DEAR SIR-I believe I have answered all the questions necessary, and to the best of my knowledge. 6%

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On the 28th of October, Beach mailed a letter to Ducat, asking him to send a "ticket of insurance for the amount applied for on the mill." On the 29th, the order for insurance was countermanded by Beach, by telegraph, the mill having been burned in the interval. Ducat was on the point of sending the policy of insurance when the telegram from Beach was received. The question was, whether there was an insurance effected. The court, reversing the decision below, decide that there was, saying:

Supposing this to be the meaning of the correspondence, the next question is, whether it had the effect of creating a contract. Eames had put in an application for insurance. It was made out in the regular form. The property was fully described; the amount of insurance was named, and the rate of premium at five and one-half per cent was proposed to be paid. Every thing was satisfactory to the general agent, except the rate of premium. No question was made about any thing else. The whole subsequent correspondence related to that alone. The agent required six and one-half per cent instead of five and one-half; and finally, as we construe the letter of Eames, he (Eames) agreed to, and accepted this modification. Supposing all the parties to be acting in good faith, as they were bound to act, had he not a right to suppose that the agreement was concluded, and that the risk was taken by the defendant? We do not well see how this conclusion can be avoided. He had not paid the premium, it is true; but it is shown that this was not required until the policy was made out and delivered. It had not been required of Cooley in 1870, and yet the policy in that case, when issued, was made to run from the date of the application some two weeks prior to its issue, and of course, covered the risk during that antecedent period.

If parties could not be made secure until all the formal documents were executed and delivered, especially where the insuring company is situated in a different State, the beneficial effect of this benign contract of insurance would often be defeated and rendered unavailable. As said by Mr. Justice Field in the case of The Insurance Company v. Colt, 20 Wall. 567, "it would be impracticable (for a company) to carry on its business in other cities and States, or at least the business would be attended with great embarrassment and inconvenience, if such preliminary arrangements required for their validity and efficacy the formalities essential to the executed contract. The law," he continues, "distinguishes between the preliminary contract to make insurance or issue a policy and the executed contract or policy. And we are not aware that in any case, either by usage or the by-law of any company, or by any judicial decision, it has ever been held essential to the validity of these initial contracts that they should be attested by the officers and seal of the company. Any usage or decision to that effect would break up, or greatly impair the business of insurance as transacted by agents of insurance companies.'

In regard to another question raised in the case the court says:

But it is objected, in the next place, that the contract, if one was made, was not complete and precise in its terms; that it did not state the period of time

during which the risk was to continue, and did not state what kind of a policy (of two or three different kinds which the Home Company used) Eames wished to have. It does appear that the application, which was signed on the 12th of October, did not (as is usually done) call for a statement of the period of insurance. It was one of the company's own printed blanks, and the probability is that the reason this item was not inserted was the almost universal practice of taking ordinary insurance against fire for a year. Nothing else seems to have been in the minds of the parties. The former insurance on the property had been for that period. The bill states that Eames applied to Beach for a contract of insurance and policy on the mill for a year, and this is not denied in the answer; the application to the other companies, the Phoenix and the Hartford, seem to have been for a year. Mr. Beach in his testimony, when asked by the counsel of defendant whether any thing had been said as to the length of time the complainants wanted insurance in the Home, promptly answered, "If I mistake not, the application states for one year;' and was only convinced to the contrary after an inspection of the document. The premium is constantly spoken of by the witnesses and in the letters as so much per cent absolutely, six and one-half per cent, without adding "per annum; " and yet we know that a year's premium was meant. It may be said that this is the usual mode of speaking when rate per annum is intended. This is undoubtedly true when an ordinary policy for a year is the subject of discussion. But when insurance for a fractional part of a year, or any unusual period, is proposed or spoken of, it is not the customary mode of speaking. It is then usual to add the words "per annum" in order to avoid mistake. We think it perfectly manifest from all the evidence taken together, that the parties meant and intended an insurance for a year, and had nothing else in their minds. This is the inference to be drawn from all their conduct, conversations, and correspondence; and we should be sticking in the bark to ignore it.

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The plea that no time for the continuance of the insurance was stipulated for, is evidently a mere afterthought.

There is no difficulty as to the time when the risk was to commence. It was the practice of the defendant, as it is of most if not all other companies, to antedate the policy to the time of making the application, which, in this case, was on the 12th day of October, 1872. This practice is more beneficial to the companies than to the insured. They are not liable until the contract is completed, and if a loss occurs before its completion they have nothing to pay; and yet they get the benefit of the premium for this period whenever the contract is completed.

As to the plea that the contract does not specify what kind of a policy was desired, it does not appear that the complainants had any knowledge or notice that the defendant issued different kinds of policies. As Eames justly said, he supposed (as he had a right to suppose) that they would get the same kind of policy which had been issued on the property before. If no preliminary contract would be valid unless it specified minutely the terms to be contained in the policy to be issued, no such contract could ever be made, or would ever be of any use. The very reason for sustaining such contracts is, that the parties may have the benefit of them during that incipient period when the papers

are being perfected and transmitted. It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount and the rate of insurance is ascertained or understood, and the premium paid if demanded. It will be presumed that they contemplate such form of policy, containing such conditions and limitations, as are usual in such cases, or have been used before between the parties. This is the sense and reason of the thing, and any contrary requirement should be expressly notified to the party to be affected by it.

The defendant objected that the application did not correctly set forth the title of plaintiff in the property insured, or the nature of the incumbrances therein. The court say:

As to the objection that the application in this case does not truly set forth the title of the complainants and the amount and nature of the incumbrances on the property, and the amount of insurance in other companies, it is sufficient to say that the evidence abundantly shows that all the facts were fully and frankly communicated to Beach, the agent of the company, and were indeed known to him before; and that he wrote down the answers according to his view of their bearing and legal effect, Eames relying entirely on his experience in such matters. There is no reason to suppose that either Eames or Beach did not act in entire good faith in the transaction. And, indeed, it cannot be pretended that the facts were not substantially as represented in the application. The complainants are represented to be the owners of the property which is stated to be subject to a mortgage for $6,000. The fact was that they had purchased the property for $12,000, and had paid $6,200 of the purchase-money, the vendor having a lien for the balance of $5,800, but no deed had ever been given. So that, in truth, the complainants did not hold the legal title, although they had an equitable one; and had not given a mortgage, although the vendor's lien was equivalent to one. In another answer, however, explaining the mortgagee's interest, it is stated expressly to be a "lien on mill to secure payment of sale." As the exact facts were communicated to the agent, and he took the responsibility of stating them in the way he did, leading the applicant to suppose that it was all right, we think it would be great injustice to turn him out of court now for this inexact method of statement. According to the views expressed by this court in the case of Insurance Co. v. Wilkinson, 13 Wall. 222, and other more recent cases, the defendant was concluded by the act of its agent. The reference to collateral insurances in other companies is subject to the same consideration. The insurances were being applied for through this very agent who wrote the answers, and who knew the whole facts, and between whom and the general agent they had been referred to in their correspondence. The defense on this ground is utterly destitute of equitable consideration.

After giving due attention to the pleadings and evidence in this case we are forced to the conclusion that a contract for a policy of insurance was fairly made, and that a decree should have been rendered for the complainants declaring them entitled to a policy of insurance to be issued by the defendant, in the usual form in such cases, for four thousand dollars on the mill and machinery of the complainants, situated at Staunton in the county of Macoupin, Illinois, to run and be in operation for one year from the 12th day of October, 1872, at the rate of six and one-half per cent

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