himself, or his agent for receiving notice. He is not so. That question was before the supreme court and decided in the case of Grace v. Insurance Co. 109 U. S. 278; S. C. 3 Sup. Ct. Rep. 207. His functions' terminated when he effected the policy. Now, this motion goes a step further. It sets up in the affidavit an entirely new defense, which, it seems, was not thought of before, to-wit, that the policy executed and delivered to the plaintiff was only on condition that the parent company should assent thereto, which it never did. That is something that was not in the original pleadings. The party had abundant opportunity to do that originally. Now he wishes to set up a new defense, and reopen the case upon a theory which is utterly inconsistent with his own correspondence on file. The motion will be overruled.
M.ITCHELL V. CATCHINGS. 1
(Circuit Oourt, E. D. Missouri.
April 1&, 1885.)
N OTES-OPTIONS-NOTICE-REASONABLE TIME. Where a demand note, given as security for a continuing option transa.ctlon, but valid on its face, was bought in the regular course of busmess and for full value, 23 days after date, by one who knew the payees of the note dealt in options, and suspecled, but did not know, that it h<ld been taken in some option deal, held, (1) that the note had been negotiated within a reasonable time; (2) that the purchaser was a bonafide holder without notice.
Hugo Muench, for plaintiff. Phillips J; Stewart, for defendant. BREWER, J., (orally.) In Mitchell v. Catchings, action on a note for
$5,000, there is really only one question, and that is whether the plaintiff was a bona fide holder, before due, of the note in controversy. In its inception the note was a note given as security for option deals,-a pure gambling transaction,-a note void as between the parties beyond any question. The plaintiff claims to be a bonafide holder before due. note is a demand note, dated November 13th, indorsed to plaintiff, December 6th. No demand was in fact made prior to transfer. While it is true a letter was written by McCormick, of the firm of Smith, McCormick & Co., the payees of the note, yet there was no presentment of the paper to the maker, no demand, within t.he rules of the law-merchant. Twenty-three days elapsed !Jetween the making of the paper and the transfer. Is that such length of time that the court is justified in presuming a demand, and
F. Hex, Esq., of the St. Louis oar.
MITCHELL V. CATCHINGS.
holding that the paper was taken overdue? The books show it is So mixed question of law and fact as to what is reason:1ble time within which demand must be made. In Daniel, Neg. Ins., quoting, I think, from Pars. Notes & Bills, the author makes use of an expression something like this:
"That it is unquestionable that one day would not be a reasonable time, and that five years would be an unreasonable delay. Intermediate these case must be left to be determined times there is nothing settled, and upon its own peculiar circumstances."
This note was given as security for a continuing transaction. In the contemplation of the parties it was not to be immediately paid. So the defendant says, and claims really a breach of contract on the part of the payees, in that they closed out his deals more speedily than they were warranted. Hence, as between the parties, it being contemplated that it was to stand as security for a continuing transaction, and not as paper which was to be immediately collected and paid, it does not seem to me that the 23 days can be held to be an unreasonable time. Counsel said in the argument (I do not know whether correctlyor not, for I have not had time to examine) that no case can be found in the books in which any period less than 30 days has been held to be an unreasonable time. Applying the law as thus laid down in the books, I cannot hold that the note was transferred after due. The purchaser suspected tha,t the note was given for one of these gambling contracts. He knew the parties from whom he purchased, and that they were engaged in that kind of business; and so he says he was not blind, but suspected the nature of the transaction. Still, he knew nothing about it. He bought it in the regular course of business at his bank, and paid his money for it. I have a strong feeling in reference to these transactions, (purely gambling transactions,that is the long and short of it,) and it is a sore temptation to ignore the law laid down by the supreme court, and say that the man who buys under such circumstance does not buy as a bona fide purchaser. But the supreme court have held in several cases-and of course that must here· be taken as settled law-that mere suspicions or negligence do not invalidate the purchase, or make the purchaser not a bonafide purchaser. "There must be [and that is the language of the court] maln fides;" and it could hardly be said there was mala fides in this case. The note on the face was all right; the plaintiff bought it in the regular course of business and paid his money for it, paying full value; and while, from the knowledge that he possessed of the business in which the payees were engaged, he must have suspected and did suspect the origin of the note, yet he did not know it. I am therefore reluctantly compelled to say that I cannot hold he was guilty of mala fides in purchasing the paper; and that, being So bona fide purchaser, he is entitled to recover.
UNITED STATES MUTUAL ACOIDENT ASS'N.
(Cirouit COUt't, E. D. Wisconsin. March, 1885.)
ACCIDENT INSURANCE-ALLEGED INJURY-QUESTION FOR JURY.
In an action on an accident insurance policy the question whether deceased was injured by jumping from a platform as alleged, is a question of fact for the jury to determine from all the circumstances of the case as shown by the evidence.
The term" accidental" as used in an accident policy is used in its ordinary sense, and means" happening by chance, unexpectedly, or not as expected." An injury that is internal may afford external indications or evidences, which are visible signs of the injury within the meaning of such term as used in an accident policy.
3. SAME-" ACCIDENTAL MEANS" DEFINED. 4. SAME-" EX1'ERNAL AND VIsmLE SIGNS OF INJURy"-INTERNAL INJURY.
5. SAME-" SOI,E AND PROXIMATE CAUSE OF DEATH."
In an action on an accident policy where it is shown that the deceased sustained an accidental injury to an internal organ, and that necessarily produced imllammation, and that produced a disordered coudition of the injured part, Whereby other organs of the body could not perform their natural and usual functions, and in consequence the injured person rlied, the original injury will be considered as the proxim!tte and sale cause of death; but if an independent disease Or disorder, not necessarily produced by the injury, supervened upon the injury, or if the alleged injury merely brought into activity a then existing but dormant disorder or disease, and death resulted wholly or in part from such disease, the injury cannot be considered the sole and proximate cause of death.
At Law. C. M. Bice, for plaintiff. Finches, Lynde rt Miller, for defendant. DYER, J., (charging jury.) On the twenty-third day of June, 1882, the defendant association issued to John S. Barry, then residing at Vulcan, Michigan, but since deceased, what may be termed a contract of insurance, by which it agreed to pay his wife, Theresa A. Barry, a sum not exceeding $5,000, within 60 days after sufficient proof that, at any time within the continuance of membership of Dr. Barry in the association, he had sustained bodily injuries, effected through external, violent, and accidental means, and that such bodily injuries alone had occasioned death within 90 days .from the happening thereof. This is a suit brought by the beneficiary named in the policy to recover the amount of the insurance. It is alleged that the deceased sustained an injury, within the meaning of the policy, on the twentieth day of June, 1883, and it is proven that he died on the twenty-ninth day of that month. There is no question, therefore, that if he was injured as claimed, he died within the time after the alleged injury named in the policy; nor is there any question that the policy was in force at the time of his death. By the terms of the policy it was provided, as already stated, that to entitle the beneficiary to the sum of $5,000, the death should be oc-