only snoh oreditors as should sign the agreement were to share in proceeds of the sales of the personal property, but all were privileged to sign. One of the defendants testified that the deed was made with the hope that the personal property would suffice for the payment of the firm debts, and they hoped to save the real estate. The attachment of the property in question is dissolved. '1'he defendant has appeared and plead, which saves the suit in court for recovery at the proper time of the plaintiffs' damages upon their claim.
PRUDENTIAL ASSUR. Co. v. lETNA LIFE INs. Co.
(Glrcuit Court, D. Connecticut. April 14, 1885.)
LIFE IN8URANCE-HEINSURANCE-ORAL PROMISSORY REPRESENTATION.
The failure of an insurance company that procures reinsurance to comply with an oral promissory representation in regard to its future conduct. made without fraud or falsehood, before the policy was issued, and not alluded to therein, is not a valid defense against the insurer's liability upon the policy.
At Law. E. O. Henderson, for plaintiff. Oharles J. Oole, for defendant. SHIPMAN, J. This is a demurrer to the second defense in the de· fendant's answer to the plaintiff's complaint upon a policy of life insurance. The facts admitted to be true, for the purposes of pleading, are as follows: In the year 1854, the Natioual Loan Fund Life Assurance Society, which in the year 1839 had issued to Edward Lawson its policy of insurance upon his life for £3,000, applied to the defendant to reinsure $5,000 of said risk, which was still outstanding. On making said application, the society represented to the defendant, in order to induce it to issue a policy of reinsurance for said sum, thM the risk was a good one,-a most excellent risk,-and they were willing rather to keep $10,000 at risk on the life than buy tne policy; and thereupon, upon j;he faith and credit of the representation that the society would keep $10,000 at risk on said life rather than buy the policy, the defendant issued to said society a policy of reinsurance on Lawson's life for the term of seven years. In the year 1861, on the expiration of this term, the society, the name of which had been changed to the International Life Assurance Society, desired to renew said policy for the term of life. The defendant reo quired a new medical examination of Lawson, so as to show his physical condition at that time, and, the same being furnished, upon the faith and credit thereof and of the previous representations made at the time of issuing the original reinsurance policy, the policy in suit was issued.
PRUDENTIAL ASSUR. 00. V. lETHA LIFE INS. 00.
In the year 1866 the society reinsured £500 of its said risk in the Royal Insurance Company of London. In the year 1869 the society ceased business and went into liquidation, and a liquidator thereof was duly appointed. On or about March 30, 1871, the society reinsured the entire risk on Lawson's life. Lawson died in May, 1879, having shortly before his death, and in the same year, sun'endered to the plaintiff, for £690, the policy issued to the International Society upon his life. The plaintiff alleges that on March 30, 1871, the official liquidator of the society assigned to the plaintiff, for a valuable consideration, the defendant's policy on Lawson's life, now in suit. This is denied by the defendant. It is agreed that frolll March 30, 1871, until Lawson's death, the premiums on said policy were regularly paid to the defendant by the plaintiff. It is not denied that the representations in regard to the character of the risk were true, nor is the willingness of the society, at the time of making the application, to keep $10,000 at risk denied. An interpretation of the language of the society, in regard to its willingness to keep the specified sum at risk, is that it was then willing or then wished to pursue that course. The defendant interprets the meaning to be that the society represented that it would keep $10,000 at risk rather than buy the policy. The non-performance of its representations is alleged to consist in the reinsurance of £500 in 1866, and a reinsurance of the whole risk in 1811, after it went into liquidation. Assuming that the construction which the defendant places upon the language of the original insurer is correct, and that it promised to keep the specified sum at risk, not only through the life of the policy which the defendant issued in 1874, but during the life of all subsequent policies which it might issue on Lawson's life, and that it promised that, upon going into liquidation, no reiusurance should be effected, the question arises, is the failure of the assured to comply with an oral promissory representation in regard to its future conduct, made without fraud or falsehood, before the policy was issued, and not alluded to therein, a valid defense against the insurer's liability upon the policy? This subject has been considered recently by the supreme court in Insurance Co. v. Mowry, 96 U. S. 544, and by the supreme court of Massachusetts in Kimball v. /Etna Ins. Co. 9 Allen, 540. The extended discllssion which was given in these cases to the subject of oral promises made without fraud, prior to the written contract, precludes the necessity of any lengthy argument. The authorities genera.lly notice the distinction between an untrue representation of a material existing fact, which. makes the contract a nullity because the minds of the parties l1ever met and there was no agreenient, and an oral promissory representation made, without fraud, before the written contract, in regard to the intention, purpose, or future conduct of the promisor. The latter class of repre-
sentations, unless incorporated in the policy, are of no importance, "because the written instrument is the expression and the only evidence of the duties, obligations, and promises to be performed by each party while the insurance continues. To make the continuance or termination of a written contract, which has once taken effect, dependent on the performance ox breach of an earlier oral agreement, would be to violate a fundamental rule of evidence." Kimball v. £ Ina Ins. Co. 9 Allen, MO. Mr. Justice GRAY, who delivered the opinion in this case, further says:
"But an oral representation as to a future fact, honestly made, can have no effect; for if it is a mere statement of an expectation, subsequent disappointmimt will not prove that it was untrue; and if it is a promise that a certain state of facts shall exist or continue during the term of the policy. it ought to be embodied in the written contract." .
The insurer is at liberty to compel an observance of promises in regard to future conduct, by incorporating them into the written contract, if it regards a performance as important, but the promise, un· less embodied in the contract, is not a part of it. All things to be done by one or the other during the continuance of the written agreement, upon the doing of which the life of the contract depends, must appear in the agreement. Alston v. Mechanics' Ins. Co. 4 Hill, 329 ; Mayor of N. Y. v. B1'ooklyn .Ins. Co. *43 N. Y. 467; Bryant v. Ocean Ins. Co. 22 Pick. 200; Insurance Co. v. Mowry, 96 U. S. 544. The case of Traill v. Baring, 10 Jur. (N. S.) 377, and 3 Bigelow, Ins. Cas. 233, is not inharmonious with the authorities that have been cited. The facts of that case as stated in the syllabus in Bigelow's Cases are as follows:
"Insurance company A., (having previously granted a policy of reinsurance to insurance company B.· on the life of L. 1.. for £3,000,) on the tenth of May, 1861, offered to insurance company C. £1,000 of the risk, stating thllt insurance company D. had agreed to undertake £1,000, and that they (company A.) would retain £1,000. Company C. accepted the proposal without the usual investigation or inquiries into the age, health, or habits of the insured, as a partnership risk. The policy granted by company C. was dated and the premium was paid on the eighteenth May, 1861. Company D., on the fifteenth May, 1861, came to a resolution not to, and they did not in fact, retain any portion of the risk, but this resolution and the course of action npon it was not communicated to company C. In 1862 the insured died of the heart disease. Held, that the policy granted by company C. was void and must be delivered up to be canceled."
The gist of the case, as shown in the opinion of the vice chancellor and of the judges upon appeal, was that when the contract was perfected the representation which had been made was not true, and that the change of intention which took place before the contract was entered into, should have been communicated to the other contracting party. The circumstances bring the case within the principle that an untrue representation of a material, and then existIng, independent or collateral, fact, affecting the risk, vitiates the policy. I have not thought it necessary to consider whether, upon a fair
IN BE TONG AR CREE.
construction of the representations made in 1854, the policy in suit, which was issued in 1861, was properly affected by them, or whether there was any breach of the promise. The demurrer is sustained.
TUNG AR CREE.
(Di8trict (Jourt, D. (Jalifornia.
CHINESE IMMIGRATION-AcT OF
1882. A Chinese laborer, who left the United States after the act of l'Ilay 6, 1882, went into effect, and who deliberately, and with full knowledge of the law, omitted to apply for his certificate, for the reason that he had no expectation or hope of ever returning to the United States, is not entitled to return.
On Habeas Corpus. S. G. Hilborn, U. S. Atty., for the United States. Messrs. Van Duzer and Teare, for petitioner. HOFFMAN, J. The petitioner in this case claims the right to reenter the United States on the ground that he was a resident of the United States at the date of the treaty, and is therefore protected by its second article. He admits that he is a Chinese laborer; that he left the United States after the law of May 6, 1882, went into effect; and that he volnntarily omitted to procure the certificate in that law mentioned, for the reason that he had no expectation of returning to the United States. The third section of the act of May 6, 1882, is as follows:
"That the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, 1880, or who shall have come into the same before the expiration of ninety days next after the passage of this act, and who shall produce to such master, before goin.q on board such vessel, and shall produce to the collector of the port in the United States at which IN.wh vessel shall arrive, the evidence hereinafter in this act required of his being one of the laborers in this lieation mentioned. "
Under this section it has recently been held by this court that the Chinese laborers referred to were those who were in the United States at the periods mentioned, and who might leave the United States after the act went into effect, but that the act could not be construed to require the prOduction of the certificate from those laborers who left the United States before the passage of the law or before it went into effect. It was considered by the court that the second article of the treaty secured to Chinese laborers in the United States at the date of the treaty the right "to go and come of their own free will and accord," and that it could not have been the intention of congress to deprive them of this right by exacting from them as a condition of its exercise the production of a certificate which it was impas-
sible for them to procure. But it was also considered that Chinese laborers leaving the United States after the law went into effect, and who might wish to avail themselves of the privilege of returning, secured to them by the second article of the treaty, might properly, and without a violation of the letter or spirit of the treaty, be required to procure the certificate, which the act directs shall be furnished to them without cha"rge, as a means of identification, and as furnishing the test, if not the only method, of preventing evasions of the law. In the caRe at bar the petitioner deliberately, with full knowledge of the law, omitted to apply for his certificate, for the reason that he had no expectation or hope of ever returning to the United States. He has thus by his own act of omission renounced the right secured to him by the treaty, by neglecting to procure the evidence of that right which the law requires, and which it was entirely within his power to obtain. I am therefore of opinion that the application of the petitioner should be denied.
In re TREADWELL and others, Bankrupts.
(District Oourt, D. California.
May 16, 1883.)
BANKRUPTcy-COMPENSA'rION OF ATTORNEY OF ASSIGNEE.
As the attorney of the assignee appears to have saved to the estate 830,000, after protracted litigation, held, that $5,000 should be allowed as a fair and reasonable compensation for such services as had been rendered and as should be required as.incidental to the final closing up of the estate.
In Bankruptcy. Lloyd Baldwin, in propria persona. T. Z. Blakeman, for opposing creditors. HOFFMAN, J. Considering that by the efforts of the attorney for the assignee the sum of $30,000 was saved to the estate after a protracted litigation in this court, and in the circuit court on appeal. 2. That more"than h'alf the creditors have expressly in writing assented to the allowance to the attorney of $5,500; that creditors to the amount of $99,175, who have not signed the assent, were present at the creditors' meeting, and offered no objection to the allowance, and dQ not now object to the same, and the creditors who now except represent only one-eleventh of the total amount of unsecured debts, viz., $368,854.61. 3. That the fittorney for the objeoting creditors proposed at the beginning of the litigation to compromise the same by paying $5,000 in satisfaction of the claim of $30,000, which offer was declined by the claimants, and that by the final decree of the court the whole claim has been rejected. 4. That the claim, if allowed, would have absorbed the whole as-
WATSON V. CINOINNATI, I., ST. L. & 0. BY. 00.
sets of the estate then remaining undisturbed in the hands of the assignee; and that the services of the attorney in resisting and finally defeating the claim were rendered with no certain assurance of compensation; and that such compensation was practically contingent on the result of the suit. 5. That the claim of Amos Hanke against the estate for $27,000 was defeated after argument and reargument on demurrer; and that other claims were presented, in opposing which the services of the attorney in opposition to them were necessary and Were rendered. 6. 'J.1hat numerous attendances in court, consultations with the assignee, communications, oral and in writing, with creditors occurred, which must necessarily have occupied a considerable portion of the attorney's time, and for which he iEl entitled to compensation. In view of the foregoing, I allow the sum of $5,000 as being in my judgment a fair and reasonable compensation for the services of the attorney rendered since March, 1881. I have reduced his claim by $250 on the grounds (1) that the fees claimed for preparing the petition, orders, etc., for a sale of remaining assets of the estate, amount· ing -to' $364, is in my opinipn excessive; (2) that I am doubtful whether the assignee can charge against the estate any sum for fees paid to his attorney for drawing a bond which by order of the court he was required to give. It is understood that the sum hereby allowed includes compensa· tion for services, if any, which may hereafter be rendered by the at· torney incidental to the final closing up of the estate.
WATSON V. CINCINNATI,
(Circuit Court, D. Indiana. March 30, 1885.)
PATENTS FOR INVENTIONs-GRAIN-CAR DOORS-PATENTS INFIUNGEMENT.
Nos. 203,226. 78,188-
Patent No. 203,226, granted to ChaunceyR. Wat.son, on April 30,1878, for an improvement in grain-car doors, construed and compared with patent No. 78,188, issued May 2ts, 1868, to Martin .M. Crooker; and held, that defendant! were not guilty of infringement.
In Equity. C. P. Jacobs, for complainant. Geo. Payson, for defendant.. WOODS, J. This action is brought against the defendant company for the infringement of letters patent No. 203,226, granted to com· plainant for an improvement in grain-car doors, bearing date the thirtieth day of April, 1878. The bill alleges that the complainant's invention consists in the combination in an ordinary freight car of the solid sliding outside door, and an inner flexible door, called a grain-door,