terial. David Bradley Mfg. Co. v. Eagle Mfg. Co., 18 U. S. App. 349, 6 C. C. A. 661, and 57 Fed. 980. However,i,f the juqgment, could be dee)l),ed a complete estoppel on the question which party was guilty of an infraction of the contract, the plaintiff in error cannot complain that the question was taken from the jury; and, on the other hand, if, as the plaintiff, in.error contends, the judgment is not only not conclusive, but, in view of the ruling of this court whereby it was affirmed on anotber ground, is not even eviof breach of the contract by the city, then still more is it now essential to a review of the ruling on that question that the evidence by the court below should be before us. The judgment is therefore affirmed. , Judge SHOWALTER did not participate in this decision.
ROSENPLAENTER v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEV. YORK. (Circuit Court, W.'D. Tennessee, W. D. 1.
January 7, 1899.)
A Ufe 'Insurance policy In terms insuring the holder for one year from Its date, but containing a provision for its renewal from year to year during the life of the assured' by the payment of. successive annual renewal premIums, Is not an entire cQntract for the lite of the assured, but is a valid "term insurance contract for one year," within Laws N. Y. 1892, c. 690, § 92, whIch Is specially excepted by that sectIon from Its general provision that no POlicy shall be declared forfeited or lapsed for nonpayment of premIums without the Pliescribed notice to the insured.
2. SAME-S'I''\'I'UTES REGULA'l'ING FORFEITURES-.,EFFEC'I' OF REPEAL. LawS 'N' Y. 1877, c. :121, providing that no policy of life Insurance should
be declatled forfeIted unless a prescribed hotice should be served on the Insured, '(Ud' not become a part of the' contracts created 'by policies subsequently w;ritten in the state, so that Its repeal ImpaIred the obligation of sucb but wall merely a rel\'ulation for the government of, in. surance companies, belonging to t}1e class, of remedial statutes which It is competent f,ortlie legislature to enact, repettI, or amend, making the same appUcableito existing contracts, witbout 'affecting the obligation of sucb , contraots;
On DemU:rrer' to Declarition.
Tbe Issved a of insurance upon the llfe of Carlos G. Rosenplaenter, in fayor of bls wife, },fary Anna, the above-namedpl:;tintiff, It is dated on the '1st day of Aprli, 1889, Is for the sum of $10,000, and payable, at the death: olHbe life assured, to the betlefi'eiary. The consideration named, besides the: c()lildith)ns and agreements Indorsed upon the back of the pollcy, is:. tbe firilt annual preUllulTl on this poliC3f; and in semi· annual of eacb payable! on the first. days of April and October, ,of which payment the defendant company'promiMs to pay the I1laintitf the sum of $10,000 "within 9Q days after the acceptlL11lce of satisfactory proof, at Us office in the city of Ne,v York, Rosenplaenter, * · * provided such death shall of the occur before,twe1ve o'clock nOon on the first day of April, A.D. 1800." The following Is of the stipulations of the polley: "And the said society furtheragrees to' renew and extend this insurance upon llke conditions during eacb succeeding year of the life of the Insured from'date hereof upon the
ROSENPLAENTER V. PROVIDENT BAV. LIFE ASSUR. SOC.
payment of the annual renewal premium for tke actual age attained, tn accordance with the schedule rate printed on the next page of this policy for each one thousand dollars insured, l)xcept as reduced by the application of the surplus and guaranty fund, such payment to be made in semiannual equivalents, payable on the first days of April and October, respectively, in each succeeding year." Among the conditions and agreements referred to in the policy is this: "Sec. 3. 'rhe annual premiums of this polley may, by consent of the society, be paid by the half-yearly or quarterly equivalent, as indicated oelow, if desired; but failure to pay when due any such semiannual or quarterly equIvalent will then terminate the policy. In case of claims by death, any unpaid portion of the annual premium will be deducted from the sum insured." counting on the policy, avers that the premiums were ']'he declaration, paid, in accordance with the terms of the polley, on the 1st days of A:pril, 1889, October, 1889, April, 1890, October, 1890, and the 1st day of April, 1891. It is then averred that the life assured died on the 5th day of September, 1894; that the plaintiff applied for proper forms and blanks to make the required proofs of loss, but these were refused, and she was informed that the policy would not be paid, because it had lapsed for nonpayment of premiums. The declaration pleads, as an avoidance of the alleged forfeiture, a statute of the state of New York, setting out such parts as are deemed material in hEeC verba; but, for convenience, the whole of said statute is here quoted, as follows (chapter 321, Laws 1877): "Section 1. Section one of chapter three hundred and forty-one of the Laws of Eighteen Hundred and Seventy-SiX, entitled 'An act regulating the forfeiture of life insurance policies,' is hereby amended so as to read as follows: 'Sec. 1. No life insurance company doing business in the state of New York shall have power to declare forfeited or lapsed any policy hereafter issued or renewed by reason of nonpayment of any annual premium or interest, or any portion thereof, except as hereinafter provided. Whenever any premium or interest due upon any such policy shall remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such polley, the place where said premium or interest should be paid, and the person to whom the same Is payable, shall be duly addressed and mailed to the person wnose life is assured, or the assignee of the policy, if notice of the assignment has been given to the company, at his or her last known postoffice address, postage paid by the company, or by an agent of such company or person appointed by it to collect such premium. Such notice shail further state that unless the said premium or interest then due shall be paid to the company or to a duly appointed agent or other person authorized to collect such premium within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void. In case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall be taken to be in full compliance with the require· ments of the polley in respect to the payment of said premium or interest, anything therein contained to the contrary notwithstanding; but no such pol· icy shall in any case be forfeited or declared forfeited or lapsed until the expi· ration of thirty days after the mailing of such notice: provided, however, that a notice stating when the .premium will fall due, and that if not paid, the polley and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.' "Sec. 2. The affidavit of anyone authorized by section one to mail such notice, that the same was duly addressed to the person whose life is assured by the policy, or to the assignee of the policy, if notice of the assignment has been given to the company, in pursuance of said section, shall be presumptive evidence of such notice having been given." After averring that the was a New York contract, and that in the application for the polley it was stipulated that it should at all times and places be construed to be a contract made in the city of New York, the declaration avers that the defendant company failed to give or mail the notice reljuirted by the said statute, but did mail a notice on the 1st day of &ptember,
1891, to the Insured, that the said premium was payable October 1, 1891, which the plaintiff avers was only 29 days, and not the 30 days required by the statute, wherefore the policy remains in full force and effect. It is then declared tbat the life assured kept and performed all the conditions required of bim except the nonpayment of the premiums payable October 1, 1891, April 1, 1892, October 1, 1892, April 1, 1893, October 1, 1893, and April 1, 1894. The declaration is not very clear in its allegations, but may be taken to aver-wbat is understood to be the fact-that after the notice mailed on the 1st day of September, 1891, no notice was given by mail of the subsequently accruing premiums, which were not paid. This may be held to be included in the general averment that the defendant failed to comply with the statute in regard to notice, and that the said policy is still in full force and effect. There is a demurrer to this declaration upon the following grounds: First. The declaration shows that notice was mailed on the 1st day of September, 1891; that the next premium payable was October 1, 1891, which the life assured or the plaintiff faUed to pay; Therefore it appears that the polley was forfeited for the nonpayment of the premium due October 1, 1891. Second. The declaration shows that the first year of insurance expired at noon on the 1st day of April, 1890: that the company agreed by the contract to renew and extend the insurance each succeeding year, upon the payment of the annual renewal premium for the actual age attained according to the given schedule, the payments to be made in semiannual equivalents, payable on the 1st days of October and April, respectively, in each succeeding year; that the life assured paid only down to and including the payment due the 1st day of April, 1891, falling to pay the premiums due on the 1st days of October, 1891, ·April and October, 1892, April and October, 1893, and April, 1894: that if the notice mailed on the 1st day of September, 1891, was invalid for any reason, then the only effect of itsiovalidity was to extend and renew the polley of insurance to the 1st day of April, 1892, and not thereafter; that, if no notice was then given, the only effect of the failure was to renew the policy to the 1st day of October, 1892; that after that date the -above statute of 1877 was altered, amended,. and repealed by section 92 of chapter 690 of the Laws of New York for 1892, which is as follows: "sec. 92. No Forfeiture of Policy without Notice. :No life Insurance corporation doing business in this state, shall declare forfeited or lapsed, any policy hereafter Issued or renewed, and not Issued upon the payment of monthly or weekly premiums, or unless the same Is a term insurance contract for one year or less, nor shall any such policy be forfeited or lapsed by reason of nonpayment when due of any premium, Interest or installment or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating the amount of such premium, interest, Installment or portion thereof, due on such policy, the place where It should be paid, and the person to whom the same . Is payable,. shall be duly addressed and malled to the person whose life is Insured, or the assignee of the polley, If notice of the assignJIlent has been given to the corporation, at his or her last known postoffice address, postage paid by the corporation or by an officer thereof, or person appointed by it to collect such premium, at least fifteen and not more than forty-five days prior to the day when the sattle Is payable. 'l'he notice shall also state that unless such premium, Interest, Installment, or portion thereof, then due, shall be paid to the corporation, or to a duly-appointed agent or person authorized to collect such premillm by or before the day when it falls due, the policy and all payments thereon will become forfeited and void except as to the right to a surrender value or paid up policy as In this chapter provided. If the payment demanded by such notice shall be made within Its time limited therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall, In any case, be forfeited, or declared forfeited, or lapsed, until the expiration of thirty days after the mailing of such notice. The affidavit of any officer, clerk or agent of the corporation, or of anyone authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy, shall be presumptive evidence that such notice has been duly given." This section was amended by chapter 218, Laws 1897, by adding the following: "No action shall be maintained to recover under a
ROSENPLAEXTER V. PROVIDENT SAV. LIFE ASSUR. SOC.
forfeited polley, unless the same Is Instituted within one year from the day upon which default was made in paying the premium, installment, interest or portion thereof for which it is claimed that forfeiture ensued." After thus pleading the New York statute of 1892, the second ground of the demul'l'er proceeds to aver that the effect of the act of 189'2 was to so amend the law Of 1877 in respect of such forfeitures and lapsing of policies as to except from the operation of the law of 1877 all policies based upon the payment of monthly or weekly premiums, "or where the policy issued was for a term of one year or less"; that it appears from the averments of the declaration that the contract of insurance set out was for a term of one year or less, wherefore the policy was not within the operation of the law of 1877; and that upon the failure of the life assured or the plaintiff to pay the premiums due April 1 and October 1, 1892, and the subsequently accruing premiums, by the express terms of the policy It became lapsed and forfeited. Third. The third ground of demurrer Is that the declaration shows that the policy insured the life assured from the 1st day of April, 1889, until the 1st day of April, 1890; that It was the agreement of the defendant company to renew and extend the life insurance under like conditions during each succeeding year of the life assured, upon the payment of the annual renewal premiums for the actual age attained, according to the rates in the schedule, the payments to be made semiannually on the 1st days of April and October in each succeeding year; that since the declaration shows that the premiums were only paid down to and including the 1st "f April, 1891, and that there 'was a failure to pay the premium of October 1, 1891, under the terms of the policy the renewal effectuated April 1, 1891, expired April 1, 1892; that the failure of the defendant company to give the required statutory notice of the premium due October 1, 1891, could do no more than would have been done by the premium if paid, namely, to continue the policy in force until April 1, 1892, by the very terms thereof; that the stipulation on the part of the defendant company to renew the policy for another year from April 1, 1.892, to April 1, 1.893, depended upon the performance by the assured of a precedent condition, namely, the payment of the renewal premium of April 1, 1892, which condition not having been performed, the policy was, by its own terms, lapsed and forfeited. The above statement of the third ground of demurrer is somewhat more specific than the demurrer itself, and comprehends a suggestion made at the argument, namely, that the failure of the insurance company to give notice of the forthcoming premium could have no more effect than the payment of the premium itself would have had; but it is a fair inference to be deduced from the groundwork of the demurrer, and is here stated in that form to exhibit more fully the cause of the demurrer.
Wilkerson & Pierson, for plaintiff·. Frank P. Poston, for defendant. HAMMOND, J. (after stating the facts as above). This demurrer must be sustained. The plaintiff claims too much for the effect of the failure to give notice of the forthcoming premium due October 1, 1891. It may be conceded, as it must be, that the 29 days of the actual notice is not the 30 days of the statute, and yet it does not follow that this policy of insurance was forever kept in force thereafter by that mere circumstance. The forfeitures incurred in the failure to pay the subsequently accruing premiums of April and October, 1892, of April and October, 1893, and of April, 1894, must each depend upon its own circumstances, and neither of these failures can receive any aid from the failure to give notice of the premium due on the 1st of October, 1891. The real question in this case is whether or not the failure to pay the premium due on the 1st of April, 1892, has been excused by any
FliIDERAL REPORTliIR. "
averments of this 'But, before considering that it is well enough to note that, by the terms of this policy, these were not semiannu:;LI premiums." ,The premiums of the policy are annual premiums; but it is agreed .that each premium may be paid "in semiannual ,equivalents," on the 1st days of April, and October. shows that the groundwork of it is Nevertheless, the annual premiums, the importance of which distinction is apparent when the policy is read in-reference to the statutory regulations involved in the controversy. . It was indeed decided in Fearn v. Ward, 80 Ala. 555, 562, 2 South. 118, that: "The contract of life Insurance has Its inception in the issue of the policy, , and .is a complete and entire ,contract for the life of the assured, continuing during life, and payable at death when no earller definite per;iod is fixed, but subject to be discontinued by nonpayment of 1:11e premiums as agreed, such payments being conditions The -annual premium Is not paid in consideration of ,insurance (or a single year, and Its payment Is not a condition precedent to'renewal. Each premium-constitutes a part of the conIlideratlon of the contract as one and entire, and the amount is fixed and regulated by the prospective duration of the life of the assured, which enters as an element into' the contract",
This also had been decided before, in the case of Insurance Co. v. Statham, 93 U. S. 24. !tis admitted in this opinion that the contrary view has been taken, by respectable authorities, but that is undoubtedly the general rule. However, this is to be understood only of the character of contracts involved in ,those cases where the insurance was of the form in controversy in those cases. To use the languageof the Statham Case, '''these policies did assure the, life of the party named in" a specific amount for the ter:rp of his natura). life." And it is to that kind of a policy that those adjudications must be confined. - They do not establish, and it cannot be affirmed, that all policies of insurance are In that form, or of that kind. And there is no reason why an company and the party assured may not make an agreement for a policy of insurance from year to year if they choose to do so, and that is precisely what the parties to this contract did. If they had set to work to 'make a contract with the intention of putting it in a form that would obviate the ruling in those two cases, they' could not more effectually have accomplished that 'purpose than they have by the language of the, policy now involved. Its distinct to pay is at the death of the life assured, provided such death shall oCCl1r before 12 o'clock noon on the 1st day of April, 1890,-precisely one year from the date of the policy. This was an insurance for a single year,and no more. The next succeeding clause of the policy prescribing the terms upon which it might be extended distinctly says that such renewals shall be for each succeeding yeal' of the life assured, from the date thereof. And _ mere reading the of the whole stipulation shows that the policy is an insurance for one year, with the right of renewal at the expiration of each year of insurance; and it is no more than this. There is no principle of law which disables the parties from making a contract like that, and therefore the decisiol1$ which have been cited do not apply to this case. Under the New.York statute of 18'77 (chapter 321), quoted ill the
ROSENPI,AENTER V. PROVIDENT SAV. LIFE ASSUR. SOC.
foregoing statement, there would be no doubt, in my judgment, of the right of the plaintiff to recover on this policy. The proviso of the first section was not complied with, because there were only 29 days of notice given, stating when the next premium would fall due, by the letter which was mailed on the 1st day of September, 1891. This was distinctly decided in the case of Hicks v. Insurance Co., 9 C. C. A. 215, 60 Fed. 690, which decision is supported by the adjudications in the state of New York upon that subject. The premium falling due 'on the 1st of October, 1891, not being paid, did not cause a lapse of the policy, or entitle the defendant to declare a forfeiture, for it was only by giving a new notice under the main requirement of the act that the defendant company could have secured a lapsing or forfeit of the policy for the failure. It is not shown by anything in the rec· ord, and it was not pretended in the argument, that any such notice was given. Neither did the company give the notice required by the statute when the premium fell due on the 1st of April, 1892; nor the semiannual premium that fell due on the 1st of October, 1892; nor the semiannual premium that fell due on April 1, 1893; nor the semiannual premium that fell due October 1, 1893; nor that of April 1, 1894. As to none of these failures did the company take the pains to give the life assured or the beneficiary notice that a forfeiture would be claimed for such nonpayment, and, not having done this, they could claim no forfeiture for any of those failures, under the act of 1877. But it is my opinion that the case is governed, not by the act of 1877, but by chapter 690 of the Acts of 1892, quoted in the foregoing statement. The date of the passage of that act does not appear, but, if it be assumed that it was passed on the very last day of the year 1892, it would govern the premium falling due April 1, 1893, October 1, 1893, and April 1, 1894, none of which were paid, and as to none of which, under the act of 1892, was the life assured or the plaintiff entitled to notice as prescribed by the act, because, as I have endeavored to show, this was "a term insurance contract for one year," which was especially excepted from the provisions of that act requiring notice to be given to secure a forfeiture on the part .of the insurance company. I do not see that there is any room for doubt of this proposition. But the plaintiff, undertakes to escape a forfeiture under that act by contending that this policy is governed by the act of 1877, and not the act of 1892. The reasoning upon which this contention goes is that the provisions of the act of 1877 were incorporated by the statute into the policy with the same effect as if the provisions of that act requiring notice had been, in terms, written in the stipulations of the policy itself, and that the subsequent act of 1892 is of no effect, because it would be unconstitutional as applied to such a contract, by impairing its obligation. I cannot assent to this. If the provisions of the statute as to notice had been written in the policy as agreements of the parties, that would have been their contract, and, of course, the law could not make another contract for them; wherefore it would be enforced by the courts as the agreement of the parties. But the statute did not undertake to make a contract of insurance for the par ties. It was only a statutory regulation for the government of insm-
91 FEDERAL REPORTER.
ance companies, compelling them to give notice, as required by the act, of the nonpayment of premiums, before they would be allowed to declare a policy forfeited 'according to its stipulations. It was a regula· tion that the legislature had a right to make. It was a beneficent regulation for the relief against a forfeiture created under the contract, which it was entirely competent for the legislature to withdraw, alter, or amend, as to it might seem best. Surely, if we turn the principle contended for the other way, its operation would be denied by the plaintiff and her counsel; that is to say, if an insurance company should contend that at the time of the passage of the act it had already issued a policy defining the terms of forfeiture, and that it was not within the power of the legislature to impair the obligation of that contract, by importing into it a different stipulation or provision as to the conditions of forfeiture, the beneficiaries would deny that such legislation unconstitutionally impai.red the obligation; but, if the legislature has the power to import into an existing contract such a regulation for giving notice without impairing the obligation of the contract as to the insurance company, it has the right to take it away by repeal, without impairing the obligation as to the beneficiary. Judge Wallace says, in the case of Hicks v. Insurance Co., supra, that the policies, being New York contracts, were, of course, dominated by the statute respecting forfeitures as completely as though the statutory conditions had been explicitly incorporated in them. This is true only sub modo; but it was not the intention of the learned judge to declare that a repeal of a statute respecting forfeitures would impair the obligation of the contract. He had no such question as that before him, and the inference that is drawn from this segregated sentence of his is quite gratuitous. It must rest upon its own merits, and can have no aid from this sentence of that decision. Such statutes as these assume by their very existence that the parties have, by the terms of their contract, incurred a forfeiture, and they had no design of prescribing conditions under which a forfeiture should take place, but only those under which, by legislative bounty, the forfeiture should be condoned or relieved against after it had been incurred. They are not statutes of contract, but remedial statutes; and as to these the rule is that they are not a part of the obliglltion of the contract. It is not because of the effect of either of these statutes that we have under consideration that the plaintiff or the beneficiary has not incurred a forfeiture strictly according to the terms of the contract, but only that the legislature of New York, having authority over contracts made within the state of New York, has relieved her against a forfeiture so far as the statutes apply, but no further. One who grants a bounty may withdraw it; and it is a mistake to suppose that the right to it becomes perpetual because it has once been granted, where the nature of the gift is such that it must recur from time to time. I do not see that the case of McCracken v. Hayward, 2 How. 608, cited by counsel for plaintiff, has any bearing on the question. In that case it was determined that a state law which prohibited property from being sold on execution at less than two-thirds of its appraised value impaired the obligation of contracts; and this, because the plain-
ROSENPLAENTER V. PROVIDENT SAV. LIFE ASSUR. SOC.
tiff had a right, at the time the contract was made, to a judgment and execution according to the then-existing laws, which rfght was as essential a part of the obligation of the contract as if it had been set forth in its stipulations in the very words of the statute relating to judgments and executions. And, where the existing law allowed the sale of defendant's property, to take that right away w.as to impair the obligation of the plaintiff's contract. But, before that, in the opinion, the court had been very careful to say that this did not apply to all state legislation on existing contracts as repugnant to the con· stitution, and the court cited as illustrations such acts of the legislature as recording acts under which an elder grantee would be post· poned to a younger. Though the effect .of such a law is to render the prior deed void as against a subsequent purchaser, it is not a law impairing the obligation of contracts. And so of statutes of limitations and kindred acts. It is said that the validity of such acts cannot be questioned; that the time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergencies which led to those enactments. It is, in my judgment, to this class of legislation that these New York statutes apply, and not the other. The court cites in support of this classification the case of Jackson v. Lamphire, 3 Pet. 280, where it was held that a patent of land from the state not imply that the patentee or his assigns should enjoy the lands free from legislative regulation, but only that the state would not impair the force of the grant; and regulations requiring them to be recorded, containing certain limitations as to time, were held by the court not to impair the obligation, whether the act of the legislature was one of limitations, or a recording act, or a law. sui juris, called for by the peculiar situation which invoked its enactment. In Insurance Co. v. Cushman, 108 U. S. 51, 65, 2 Sup. Ct. 245, the suo preme court says:
"The laws with reference to which parties may be assumed to have contracted were those which In their direct and necessary legal operations con· trolled or affected the obligations of such contract."
And it was held that a reduction in the interest as between the purchaser at the sale and the party entitled to redeem did not impair the obligation of the contract. In the case of Ewell v. Daggs, 108 U. So 143, 150, 2 Sup. Ct. 413, it was held that the repeal of a statute of Texas which made contracts void for mmry acted retrospectively, and took away the right of the defendant to make the defense of usury, but that such repeal was not legislation impairing the obligation of contracts. Mr. Justice Mat· thews uses this pertinent language:
"The effect of the usury statute of Texas was to enable the party sued to resist the recovery against him of the interest which he had contracted to pay, and it was In its nature a penal statute, inflicting upon the lender a loss and forfeiture to that extent. Such has been the general, If not the uniform. construction placed upon such statutes. And it has been quite as generally de· clded that the repeal of such laws without a saving clause operated retrospectively,· so as to cut off the defense for the future even upon actions upon con·
made. And such l!J.ws, operating with that effect·.have been 4phe}d !!-s !1galnst objections QH the grouJ;ld tl:1at they. deprivedpartjes .of orltnpalred the obligation of contrMts. * * * And these deCfillohsJ.rest upon SdIld ground. Independent of the nature of the forfeiture as a penaltY,'w):llch is taken away by a repeal of 'the act, the more general and deeper principle on Which tl\ey, arl! to be sUIlPorted is that the right of a defendant to avoid his contract is glyen to him by statute. for purposes of its own; and not because it affects the merits of his obligation; and that whatever the liltatute gives, under such' circumstances, 'as long as' It remains In fieri, and not realized by having passed unto a complete transaction, may. by a SIlOSElquent statute,be taken ,lJ,way. It Is a, privilege that belongs to element .in the rights ,that inhere in}he contract. the remedy, The benefit w'hlchhe has received as the consideration of the contract which, contrary to laW, .he .actUally made,ts just ground for imposing upon him, by subsequent legislation, the ,1lability whic1:lhe intended to .incur. That principle has been repeatedly annoupced and acted upon by thJij .court. -* * * The right which the curative or, rElpealing act takes away in sl1ch a case is the right in the Party to avoid his 'contract,-a naked legal right, which It Is usually unjust'to Insist upon, andiwhichno constitutional provision was ever designed to
In the Gross v.Mortgage Co., 108 U. S. 2 Sup. Ct. 947, the ()f Daggs wasreatnrmed in its applicationto statuteswbicb made wbich had pr,eviously been invalid on accollnt of their nopcolllpliance with of the legislature; andit is held that tbesesubsequent statutes were not ul)constitu'tiona,l; as depriving person ofbis property without due , process Mr. Justice Harlan makes tpis observation in reto su$statutes:
;'When departmentremo;ved the Inhibition Imposed, as well public policy of the state" upon the execution of a conby statute as by trltet like thiS; if cannot be said thlih:iuch leglsllitlon, retrospective ih'its operationj Impaired the obligation of the contract. It' rather enables t,bi! parties t() ellfotce the contract wh1ch they intended to make. It is, in elIcct, a legilllatlve..declaration that· the mOl'tgagol: shall Dot, In a suit to enforce the Him given by the mortgage, shield himself behind any statutory prohibition of public policy which prevented the mortgagee, at the date of the mortgage, from taking the title, which was intended to be passed as security for the mortgage debt."
Further quoti;tlg from a previol1s case, he remarks:
tract can be said to impair 'the obligation of that contract."
"It is not easy to .percelve how a law which· gives validity to a void con-
is it easy to see how a law which restores tbe stipulations of a valid contract, that have been interrupted by the operation of a statute, can be said to impair the' obligation ofa contract. Counsel on neither side have cited any case where tbe question of the impairment of the obligation of a contract in its application to· statutes' like these of the state of New York, requiring notice to be given before forfeiture of a policy ,of insurance can be insisted upon, has been considered or determined,. and I have found none. But I feel quite sure that the principle enunciated by Mr. Justice Mattbews in the case above cited fully applies to such statutes. These parties agreed that the nonpayment 0] the premium should work a forfeiture. The statute stepped in to relieve against thebardness of that contract, but it created no other or different contract from tbat which the parties had made. Hence tlle repeal of the statute only operated to restore tbe
IN RE CURTIS.
stipulations of the agreement as made the parties themselves. It is my opinion that the New York act of 1892 operated to repeal the act of 1877 in the matter of statutory regulations concerning notice, and that by the act of 1892 this policy was especially excepted because it is "a term insurance contract for, one year." It operated retrospectively, as the act of 1877 did, because by its very terms it applied to every policy thereafter issued or,renewed. The regulations of these two acts as to the notice to be given applied to protect the beneficiaries upon premiums renewed upon policies already existing, as well as to premiums upon policies thereafter issued; and, of course, if the act applies to require notice as to previously existing policies, the later act, exempting these renewals from the requirements of notice, also applies to then-existing policies in its relation to the renewal of premiums. Therefore, when the plaintiff. or the life assured did not pay the premiullls accruing on the 1st of April, 1893, the 1st of October, 1893, and' the 1st of April, 1894, the policy lapsed, and the forfeiture was complete, notwithstanding that no notice was given. Demurrer sustained, and suit dismissed, at plaintiff's cost.
In re CURTIS et at (DIstrict Court, S. D. DIlnois. January 24, 1899.)
BA:N'KRUPTCY-STATE INSOLVENCY LAW SUSPENDED.
The Illinois act of July 1, 1877, regulating voluntary assignments fot the benefit of creditors, and conferring on county, courts of the state jurisdiction to administer estates so assigned, and to secure their equal distribution among creditors,according to the prOVisions of the act, is a general insolvency law; and its operation was suspended from and after July 1, 1898, by the enactment of the national bankruptcy law on that day.
SAME-FOLLOWING STATE DECISIONS.
A decision of the supreme court of a state, that a statute of that state regulating the administration and distribution of estates under general assignments for the benefit of creditors is an insolvency law, wlll be followed by the federal courts of bankruptcy in deciding upon the effect of the enactment of the national bankruptcy law upon the operation of ' such statute. A voluntary general assignment for the benefit of creditors, made under a state insolvency law after the enactment of the national bankruptcy law, Is an act of bankruptcy, contrary to the spirit of the bankruptcy act and to public policy as manifested therein, and, as against proceedings in bankruptcy subsequently instituted against the assignor. is void; and proceedings had in a state court upon such assignment, in accordance with the state law, are coram non judice, and do not prevent the court of bankruptcy, upon a proper petition against the assignor. from adjudging him bankrupt, and proceeding to the administration and distribution of his estate. An insolvent debtor having made a general assignment for the benefit of creditors pursuant to a law of the state, one of 1:Iis creditors was induced to join with the debtor and his assignee in a petition to the state court having jurisdiction of the estate for a decree authorizing the conveyance of land of the debtor to such creditor in part payment of his claim, on the promise that he should receive a bond to indemnify him
SAME-ASSIGNMENT UNDER STATE LAW VOID.
4. SAME-PETITIONING CREDITORS-EsTOPPEL.