the city railway company. He had no contract of employment with the city railway company. The contract between the two companies required the interurban cars, while upon the lines of the city railway company, to be operated by the employees of that company at its own expense. This was not done but the city railway company permitted the cars to be operated under its control by the employees of the interurban company, whom it paid in the manner which has been stated.

We are referred to the case of Peterson v. Chicago, Rock Island and Pacific Railroad Co. 205 U. S. 364, as sustaining the claim of plaintiff in error that the deceased, while operating his car over the lines of the city railway company, was in its employ and not in the employ of the interurban company. In that case the lines of the Chicago, Rock Island and Pacific Railroad Company, a corporation of the State of Illinois, and the Chicago, Rock Island and Gulf Railroad Company, a corporation of the State of Texas, connected at the boundary line of the State of Texas, and passenger trains were operated on both sides of the State line on the tracks of both companies by the same crews without stopping at the State line. The employees operating these trains were under the control of the Gulf Company while working south of the State line and were carried on its pay-roll and paid by it for such work, and were under the control of the Pacific Company while working north of the State line and were carried on its pay-roll and paid by it for such work. Suit was begun in Texas against the Chicago, Rock Island and Pacific Railroad Company, and a summons was served in that State upon a conductor living there who was employed in operating the trains running across the State line. On motion to quash the service it was held that the conductors, when they crossed the Texas line, became servants and agents of the Gulf Company and were not the agents of the Pacific Company doing the business of the company in Texas; that the Pacific Company was not do

ing business in the State of Texas, and that the attempted service was not upon the agents of that company transacting its business in that State in such a sense as to give jurisdiction by service upon them.

It may be that the plaintiff in error was not doing business in the city of Chicago so as to be bound by service upon its employees there. Its employees there were for the time being the agents and servants of the city railway company to the extent that they were doing its work and subject to its orders in that work. Their contract of employment with the plaintiff in error did not, however, cease when they crossed the city line. The cars were still interurban cars and they were still interurban employees, though the city railway company had contracted, not with them but with their employer, to pay their wages. It is our conclusion that the deceased was continuously in the employment of the same employer during the year.

The circuit court, in addition to confirming the award, allowed on all the payments which had accrued, interest from the date of decedent's death. The statute does not authorize the allowance of interest prior to the making of an award under the Workmen's Compensation act, but under the Interest act the award itself bears five per cent interest on the amount due at the date of the award from that date and on the subsequent installments after they respectively become due. The judgment will be modified so as to reduce the amount from $782.75 to $763.35, which includes all installments to May 29, 1917, when the judgment was rendered, with interest thereon to that date. Subsequent installments will bear interest from the time they respectively become due. So modified the judgment will be affirmed, each party to pay its or his own costs in this court. Modified and affirmed.

(No. 11450.-Reversed and remanded.)

JAMES C. BENES, Defendant in Error, vs. THE BANKERS LIFE INSURANCE COMPANY, Plaintiff in Error.

Opinion filed December 19, 1917-Rehearing denied Feb. 7, 1918.

I. INSURANCE—when personal representative is proper party to sue on life policy. Where an insurance policy is payable to the insured or to his estate at his death, or where a policy payable to another person is duly assigned by him to the assured or to his estate under the rules and by the consent of the insurer, the personal representative of the deceased is the proper party to sue for and collect the insurance.

2. SAME what does not show right of action in creditor of assured. Under section 18 of the Practice act a creditor of the assured may maintain an action on a life insurance policy after the death of the assured where the policy has been assigned by the beneficiary to the assured and by him to the creditor as collateral security, but a plea attempting to set up such right of action in the creditor as a defense to a suit by the beneficiary is insufficient, where it fails to allege that there was any sum due the creditor either at the assured's death or when the suit was brought by the beneficiary.

3. SAME what shows a prima facie right of recovery by beneficiary. The beneficiary named in a life insurance policy shows a prima facie right of recovery thereon by introducing the policy sued on and proving the payment of the first premium, the death of the assured, the giving of notice and the furnishing of proofs of death to the company or a waiver of such proofs, and that he is the person named in the policy.

4. SAME-defense of forfeiture for non-payment of premiums must be alleged in special plea. The defense of forfeiture of an insurance policy by reason of the failure to pay premiums subsequent to the first, or of the violation of other conditions subsequent, must be alleged by way of special plea and proved by the defendant insurance company.

5. SAME when a policy is forfeited for the failure to pay one premium. The simple provision in a policy that it shall be invalid unless the premiums are paid when due is sufficient to work a forfeiture when one premium is not paid when due.

6. SAME when a plea need not expressly allege that default occurred in lifetime of assured. A plea of forfeiture for non-payment of a premium, alleging that the premium was due on a certain date, which was during the lifetime of the assured, and that it was not paid then or since, need not expressly allege that the default occurred during the lifetime of the assured.

7. PLEADING—what matters may be put in issue under a plea of the general issue in assumpsit. Under a plea of the general issue in assumpsit the defendant may put in issue the plaintiff's capacity to sue, the execution of the contract, and the release, satisfaction and payment of the debt, if made previous to the commencement of the suit.

8. SAME when specicl plea is subject to demurrer as amounting to general issue. If a matter of defense contained in a special plea is a matter which plaintiff is bound to prove as against a plea of the general issue, the plea is subject to the objection that it amounts to the general issue and is demurrable.

9. SAME when defendant is warranted in standing by a special plea. Where a demurrer to a special plea in an action on an insurance policy is sustained the defendant is warranted in standing by his plea and in declining to offer to introduce any evidence admissible thereunder which is not admissible under the general issue, provided there is no intimation by the court that he may introduce such evidence under the general issue.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. LOCKWOOD HONORE, Judge, presiding.

E. I. FRANKHAUSER, (C. PETRUS PETERSON, and RICHARD H. COLBY, of counsel,) for plaintiff in error.

D. RYAN TWOMEY, for defendant in error.

Mr. JUSTICE DUNCAN delivered the opinion of the court: The Appellate Court for the First District affirmed a judgment of the circuit court of Cook county for $1270.84 in favor of defendant in error in a suit in assumpsit against plaintiff in error, the Bankers Life Insurance Company of Nebraska, on a policy of insurance issued by plaintiff in error on the life of Edward J. Benes, payable to his brother, the defendant in error. A writ of certiorari was allowed by this court.

The cause was heard on the declaration of four counts, plea of the general issue and a special plea charging failure to provide proofs of death, to which latter plea a replica

tion was filed setting forth facts relied on as a waiver of such proofs. The first count of the declaration was in the usual form on the policy, setting out the same in hæc verba. The second count consisted simply of the common counts. The third count is substantially the same as the first, with additional allegations of change of the beneficiary from that of defendant in error to the estate of the insured, the death of the insured intestate, the fact that the defendant in error is the only heir-at-law of the insured, and such further facts as would, under the statute, obviate the necessity of administration of the estate of the insured. The fourth count was substantially the same as the first, with the further allegation that defendant in error is the actual, bona fide holder and owner of the policy; that by and with the consent of defendant the assured directed that the amount of the policy be paid to his estate in the event of his death; that on the 27th day of March, 1911, the insured died intestate, leaving plaintiff in error as his only heir; that the deceased was solvent and owed no debts at the time of his death, and that no letters of administration had been granted upon the estate of the deceased. Plaintiff in error also filed five other special pleas to the declaration, to all of which the court sustained special demurrers.

Plaintiff in error, by its assignment of errors, challenges the ruling of the court in the sustaining of the demurrers only as to two of the special pleas, referred to in the record as the second and the sixth special pleas. The second special plea, omitting the formal parts thereof, avers that the policy of insurance in the plaintiff's declaration mentioned was issued to Edward J. Benes in consideration of the payment of $24.70, payable on the 12th day of January of each and every year during the life of the policy until payments for twenty full years had been made; that the alleged policy of insurance in plaintiff's declaration mentioned, among other conditions, provisions and agreements, contained the following: