the jury, in substance, that if they found that the note was procured by fraud they should find for the defendant, unless they found that the plaintiffs purchased the note before maturity for à valuable consideration without knowledge of the fraud, and in case they found that the plainttiffs did so purchase the note, then the verdict should be for them. The plaintiffs do not complain of this instruction; but they say that under it the verdict should have been for them, because, while the jury might have been justified in finding that the note was procured by fraud, the evidence was conclusive that it was purchased by plaintiffs without knowledge of the fraud. The purchase was made by one Tenny, a member of the plaintiffs' firm, who testified that he had no knowledge of any of the circumstances connected with the note. To rebut this evidence the defendant showed that there had been other victims of hog-cholera notes in that community, and that Tenny had been informed that it was claimed that the hog-cholera notes, as a class, were fraudulent. But it is not shown that whatever information Tenny received upon this subject was received after the purchase. Tenny's testimony, therefore, is uncontradicted.

There remains, then, only to be considered whether proof that Tenny was at the time of the purchase without knowledge of the fraud was sufficient. The defendant contends that it

was not. He contends that while Tenny's knowledge would be deemed the knowledge of the firm, his ignorance would not necessarily be deemed the ignorance of the firm. It must be admitted, of course, that the fact that Tenny was ignorant of the fraud would not show that his partners were. The general rule is that where the transferee of a fraudulent note seeks to recover thereon he has the burden of showing that he purchased in good faith. Now, where the purchaser is a partnership, will it be deemed a purchaser in good faith if it is simply shown that the purchasing partner had personally no knowledge of any fact which would preclude good faith? No decision directly upon this point has been cited by counsel, and none has come to our notice. Upon principle, it appears to us that the question should be answered in the negative. We know of no ground upon which it could be presumed that the purchasing partner's copartners were ignorant of the fraudulent character of the note because he was. He might have been the one selected and put forward to make the purchase, because he was ignorant. We are aware that if the rule is as we hold that where a partnership seeks to recover as a bona fide purchaser of a promissory note fraudulently procured the burden is upon the partnership to show that all the members were ignorant of the fraud at the time of the purchase, it is necessary for the entire safety of a partnership in purchasing a note that all the members should be consulted or inquired of by the purchasing partner. But this is imposing no great We cannot suppose that promissory notes are often purchased by partnerships under

such exigency upon their part that the necessity for the caution required by the rule laid down would impose an unnecessary restriction upon the business.

In our opinion the plaintiffs did not show that they purchased without knowledge of the fraud, and the judgment must be affirmed.

LIFE INSURANCE.-WAIVER.-ESTOPPEL. NEW YORK COURT OF APPEALS. ROBERTSON . THE METROPOLITAN LIFE INS. Co.

April 11, 1882.

A policy of life insurance provided that it should cease if any premium should not be paid within thirty days after it fell due. A premium having fallen due Jan. 10, 1877, Plaintiff's agent called on Feb. 10 to attend to it and was informed by defendant's secretary that it had been attended to, but in fact the premium was never paid. Held, that defendant was not estopped by the statement of its secretary from asserting the forfeiture, as plaintiff was not harmed or prejudiced thereby, the policy having lapsed before such statement was made, and that there was no waiver of the forfeiture, as the secre

tary's statement was made under a mistake of fact.

This is an action upon a policy of insurance issued by defendant to plaintiffon the life of her husband. It provided that any payment of premium could be made within thirty days after the same became due and payable by the term of the policy. It also provided that in case any premium should not be paid on or before the time required by the policy the policy should cease, and all previous payments of premiums should be forfeited to the company. It was also provided that if, after the company has received three or more annual premiums, the assured should fail to pay any further premium when due, upon a surrender of the policy within thirty days after such unpaid premium became due, the company would in exchange therefor issue a paid up policy for at least the full amount of even dollars of premiums received by it on the policy. The policy was issued in 1868. was issued in 1868. Plaintiff failed to pay the portion of the annual premium which fell due January 10, 1877, on that day or within thirty days thereafter. It appeared that on Febuary 10, an agent of plaintiff went to defendant's office and stated to its secretary that he had come to attend to Mr. Robertson's premium, and would like to know what the condition of it was. secretary looked at the books and replied that Mr. Robertson had attended to that himself, plaintiff's agent understanding the secretary to mean that Mr. Robertson had paid the premium. Upon the return of her agent with the information thus obtained from its secretary plaintiff learned from her husband that the premium had not been paid. Three or four days after she went to defendant's office and tendered the amount of the premium then past due, and the company refused to receive payment. Upon the trial defendant's secretary testified that he had no recollection of stating to plaintiff's agent that the policy had been attended to. There was no allegation in the complaint and the case does not

The

disclose that there was any claim at the trial that the premium had actually been paid or in any manner attended to or arranged prior to February 10, 1877.

Held, That as by the very terms of the policy it ceased by the non-payment of the premium within the time stipulated, it could only be revived or continued in life by a new agreement, by the operation of an estoppel or of a waiver. No new agreement was proved or alleged in the complaint. There was no estoppel, as the plaintiff was not harmed or prejudiced by the mistaken or untrue statement made to her agent on February 10, 1877. The policy had then lapsed and it was too late for her to do anything to restore or continue it. There was no waiver of the forfeiture of the policy, because what was said by the secretary on February 10, 1877, was plainly said under a mistake of fact.

Ordinarily a party should not be held to have waived a forfeiture in the absence of facts constituting an estoppel, unless he he intended to waive it, nor can he be held to have waived it unless he knew of the facts constituting the forfeiture. 25 Alb. L. J., 274; 2 Platt on Leases, 469; 81 N. Y, 419; 46 Barb., 333.

Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted.

The court did not err in charging the jury on the subject of insanity as follows: "Where insanity is relied upon as a defence, the burden of proof is on the defendant; and that the proof must be such in amount that if the single issue of the sanity or insanity of the defendant should be submitted to the jury in a civil case they must find that he was insane. The insanity must be clearly established by satisfactory proof." Such is the law as expounded by this court in People v. McDonnell, 47 Cal. 134. The instruction is substantially the same as was approved in that case. Insanity, when relied upon as a defence in a criminal case, is a fact. As a fact it must be proved as any other fact in the case. "It must," says the court in PeoAle v. Coffman, 24 Cal, 230, “be established with

the same clearness and certainty as any other fact alleged by the defendant in his defence, that is to say, the proof must be such in amount that if the single issue of the sanity or insanity of the defendant should be submitted to the jury in a civil case, that they would find he was insane." The rule thus established in this state is not subject to the criticism that it deprives a defendant in a criminal case of the benefit of a reasonable doubt; for, although a defendant is required to prove every fact, in the defence upon which he relies, by satisfactory evidence, evidence which ordinarily produces moral certainty or conviction in an unprejudiced mind (§ 1853, C. C. P.), yet if out of his evidence, together with the evidence of the prosecution,-all the evidence on both sides,-there arises a reasonable doubt about it, he is entitled to the benefit of the doubt. But it will be observed, that it is the corpus delicli,-the criminal act-which must be proved beyond a reasonable doubt (§ 2061, C. C. P.), and not a fact in the case itself. In that respect the rights of the defendant were properly guarded in the trial of the case. For while the court told the jury that insanity was a fact for the defendant to establish by satisfactory proof, it at the same time charged them that the burden of proof to make out the guilt of the defendant was on the prosecution; "that the defendant must be presumed innocent until his guilt is established by proof; and that he is entitled to the benefit of all reasonable doubts, and cannot be convicted of any degree of crime, unless the jury are convinced by the evidence in the case, beyond all reasonable doubt, that he is guilty."

Judgment affirmed.

Digest of Decisions.

IOWA.

(Supreme Court.)

Conn, v. Conn AND OTHERS. JULY 12, 1882. Homestead-Dower-Election by Widow.-A widow may take out of her real estate owned by her husband either the distributive share or the homestead for and during her life, but she cannot take both; and occupancy of the homestead for more than 10 years after the death of her husband should be regarded as an election to take it for life, instead of her distributive share or dower.

Where the widow mortgaged the property, including her share inherited from a deceased child, and the mortgage was subsequently foreclosed, the purchaser at the mortgage sale becomes a tenant in common with the surviving heirs, and cannot acquire a tax title to the prejjudice of his co-tenants; and an intervenor holding under a quitclaim deed from him has no better right,

ORMOND v. CENTRAL IOWA RY. JULY 12, 1882.

Custom-Negligence-Railroad.-The custom of a neighborhood is not admissible in evidence to prove a want of contributory negligence, in an action brought by plaintiff against a railroad company for damages caused by the burning of stacks of oats in a field along the line of defendant's right of way, and caused by sparks from defendant's engine.

In such action it is competent to show that plaintiff raised the oats on rented land on shares to prove that he did not own all the grain destroyed.

STUHLMILLER, Adm 'r, v. CLOUGHLY. JULY 12, 1882,

Malpractice-Measure of Dumage. In an action for damages for wrongfully causing the death of a married woman by negligent medical treatment and want of ordinary skill as a physcian, an instruction to the effect that the damages, if any, thus caused should be assessed the same as though she had been an unmarried woman, taking into acount her age, health, habits, education, expectancy in life, and her degree of ability to perform various kinds of labor and earn money, is erroneous, as the damages should not be assessed on the same basis as though she were unmarried.

DICKEN V, MORGAN. JULY 12. 1882. Contract-Consideration-Highway over Land.There is nothing in the statutes of this state which requires exceptions to the decree in an equitable action to be taken to justify a trial on appeal.

Plaintiff sold land to defendant, and for part of the consideration agreed to procure the legal establishment of a highway across one side of the land. This he failed to accomplish. Held, that for that part of the consideration money agreed to be paid for the establishinent of the highway defendant was not liable.

Where an action was brought against the road supervisor to prevent the opening of a certain road, and there was a trial involving the validity of said road, and the opening of the same was perpetually enjoined, this must be regarded as an adjudication binding upon the public and upon all persons interested, and no road could thereafter be legally established along said line.

and the laws of the state wherein it was made, so far as they attempt to regulate interstate commerce, do not enter into it as a part of the contract, being repugant to the federal constitution. BECK, J., dissenting.

A contract is subject to the laws of the state wherein it is made and which are applicable thereto.

A state may enact statutes regulating charges on shipments of goods, unless they should be found to be in conflict with the constitution of the United States as a regulation of commerce, and in the absence of any legislation by congress upon the subject, such laws cannot be regarded as an encroachment upon the authority of the general goverment.

Such regulations of commerce only as impose burdens and restrictions are forbidden to the states by the constitution of the United States, but laws which aid in securing expeditious and cheap transportation, and which remove burdens, impediments, and restrictions imposed on commerce by common carriers through unnecessary delays, and by their unreasonable and unjust exaction and discriminating charges, are not regulations of commerce within the contemplation of the constitutiion of the United States.

VAN Vechten v. SMITH. JULY 13, 1882. Promissory note-Interlineation-Statement of Seller.-In an action upon a promissory note defendant is not prejudiced by the instruction that if the word "bearer" was interlined after delivery of the note that would be a material alteration and vitiate the note; but if they should find that the word "bearer" was interlined at or before delivery, the note would be negotiable and the plaintiff would be entitled to recover, though they found that the note was procured by fraud and without consideration, even if erronous, unless there was some evidence of fraud or want of consideration.

A statement by a seller of property as to its value is a mere opinion, and not to be treated as a false representation, however insincere the seller may have been; and such statement is no defence to an action upon a note given for the property.

A party cannot rescind an agreement involving several matters without surrending or offering to surrender what he has received upon such agreement.

An agreement by parol cannot be admitted in evidence to contravene the terms of a written contract. So held, where a note sued on was attempted to be contravened by proof of an agreement that it should be paid by commissions for future services as agent of the holder.

An agent appointed to collect a note has no authority to bind his principal by his opinion as to the reading of a particular word in such

note.

The assignee of a note is not affected by an interlineation made before he purchased the note,

Ohio Law Journal.

COLUMBUS, OHIO, : : AUGUST 10, 1882.

VERY IMPORTANT!

With this number we complete our second

year.

The OHIO LAW JOURNAL has taken its place permanently as one of the standard law publications of the country, and as a representative of the great State of Ohio, is at least fairly creditable. We ought perhaps to leave this remark for others to make; but others may not have the opportunity-possibly not the mind to do so.

We would simply say however, that we have been nobly seconded in our effort to give to the profession of this great State, & Law Journal-a medium by which the action of the highest court of the State could be at once transmitted to those most deeply concerned, as litigants, attorneys or as lawyers at large. We are proud of the fact that our subscribers, our patrons, those who appreciate our paper best and pay for it most promptly, are the very best and most successful lawyers of the State. This is true of every town, city and county in Ohio. It is but natural obedience to the law of cause and effect. lawyer can succeed except by knowing the law. And the law of the first importance to all lawyers, is the law of their own state. The infallible indication of a successful lawyer is his familiarity with recent enactments and judicial decisions.

No

There is but one method of obtaining these immediately after their enactment and promulgation and that method is by reading the OHIO LAW JOURNAL. And the only method by which the publication of a law journal is rendered possible is by that generous support which we derive from the members of the profession.

To our old friends we would further say, that prompt renewals accompanied by cash will be until Sept. 1st, particularly gratifying and opportune.

Look over your files of the LAW JOURNAL, and ascertain at once whether any are missing. We have but few back numbers! Those who come first will be first served of course. When you have found what numbers you desire, let us know at once-with your order for renewal, and we will complete files as far as our numbers on hand will go. Do not wait! Attend to this at once!

Some weeks since I promised you to write for your Journal, and for publication, my views on Virginia Military Land titles and the rights of locators and owners of lands in the Virginia several acts of congress, on the subject, none of Military district in Ohio, and the bearing of the them having ever been repealed.

I presume it is well understood that Virginia ceded to the United States all right &c., which that commonwealth had to the territory or tract of country within the limits of her charter situate, lying and being to the northwest of the river Ohio, reserving that part of the country between the rivers Scioto and Little Miami, on the northwest side of the said river, Ohio, for the use of the officers and soldiers of the continental line or so much of the country between those rivers as might be necessary to make up any deficiency of good land, on the southeast side of said river Ohio, which had been reserved by law for the Virginia troops upon continental establishment.

A deficiency of good land for the satisfaction of said troops on the southeast side of said river Ohio, having been reported to congress, she passed her act of August 10th, 1790, entitled "An Act to enable the officers and soldiers of the Virginia line on continental establishment to obtain titles to certain lands lying northwest of the river Ohio, between the Little Miami and Scioto." U. S. L. Vol. 1, p. 182.

And on the 9th day, of June, 1794, amended her said act. U. S. L. Vol. 1, p, 394.

On March 23rd, 1804, congress, passed an Act entitled "an Act to ascertain the boundary of the lands reserved by the state of Virginia, northwest of the river Ohio, for the satisfaction of her officers and soldiers on continental establishment and to limit the period for locating the said lands."

By the 1st section of this act she declared, "that the line run under the direction of the sur-veyor general of the United States from the source of the Little Miami toward the source of the Scioto, and which bounds on the east, the surveys of the lands of the United States, shall, together with its course continued to the Scioto River, be considered and held as the westerly boundary line, north of the source of the Little Miami, of the territory reserved by the State of Virginia, between the Little Miami and Scioto Rivers, for

the use of the officers and soldiers of the continental line of that state, provided that the State of Virginia shall within ten years after the passing of this act, recognize such line as the boundary of the said territory."

By the 2nd section she provided "that all the officers and soldiers or their legal representatives who are entitled to bounty lands within the