nant were well and truly complied with and performed," and not having proved such compliance in every particular, she is not entitled to recover. Ans. This point is refused. 5. Upon all the evidence offered in the case the verdict of the jury must be in favor of the defendant. Ans This point is refused. H. L. Fisher, N. M. Wanner and W. S. Campbell for plaintiff in error. The admission of the policy, without the application, was error: Lycoming Ins. Co. v. Sailer, 17 Smith 106. The question of "reasonable time" was for the jury: Coursin v. Penna. Ins. Co., 10 Wright 323. May 21, 1883. PER CURIAM The plaintiff in error was duly notified to produce the application. Failing to do so, there was no error in admitting the policy in evidence. The conduct of the president of the Association, as well as his distinct and express admission and declaration in writing, were a waiver of the proofs otherwise necessary. As there was really no evidence establishing a defence, the jury were correctly instructed Plaintiff should have proved the exis- to find for the plaintiff below unless they tence of the application : Wharton on Evidence, Section 141. And a search for it: Greenleaf on Evidence, 558. The declarations of the President were outside the scope of his authority, and therefore not binding on the defendant company: Hackney v. Insurance Co., 4 Barr 187. The death proofs were presented too late: Com. Ins. Co. v. Sennett, 5 Wright 161. The President had no authority to waive death-proofs: Hackney v. Insurance Co., 4 Barr 187. discredited his witnesses. Judgment affirmed. Bettinger v. United Brethren Mutual Mutual Insurance--Assignment of Pol- H., the beneficiary in a mutual policy, assigned the same to third persons, who had no insurable interest.These assignees paid all assessments, and at the death of the insured, claimed the amount of the policy from the Association. Before payment, H. notified the Association that he claimed the amount of the insurance as heir-atlaw of the insured, and contested the assignment on the ground of the assignees having no insurable interest, and the entire transaction being a speculation, and brought suit against the Association. HELD, That H. was estopped from setting up such a claim, he having entered into the arrangement of his own accord, and executed an assignment under seal to that effect. April 4, 1883. JOHN B. MCPHERSON, A. L. J. This case was tried before the Court without a Jury under the provision E. W. Spangler and W. C. Chapman of the Act of 1874. From the evidence for defendants in error. The plaintiff could not offer the application in evidence, because the defendant refused to furnish it. before us we find the following facts: 1. On October 20, 1875, two certificates of membership or policies of insurance were taken out by Catharine Hettinger, in the defendant Society on her own life in The death proofs had been waived by favor of the plaintiff Joseph Hettinger, her the actions of the President, and the com- Cass v. Railway Company, 30 P. F. Smith 36. Eilenberger v. Protective Mutual Ins. Co., 8 Norris 464 husband, his heirs or assigns; one certificate or policy, No. 320 class 2, Division C. for $3000 and one, No. 621 class 1, Division B, for $2000. These policies or certificates are contracts of life insurance. 2. On December 23, 1865, Joseph Hettinger sold his interest in these policies to A. B. Baum and S. B. Lemberger, assigning No. 320 directly to them and No. 621 in blank with an agreement that the blank might be filled up with the names of such person as would purchase the policy from Baum and Lemberger. The latter policy No. 621, was afterwards purchased by Daniel R. Speck and John H. Speck. and their names inserted in the blank. On July 14, 1877, Baum assigned his interest in policy No. 320, to Ephriam Borgner. The defendant had notice of these assignments and approved the same on January 4, 1876, February 8, 1876 and July 16, 1877 4, 1876, February 8, 1876 and July 16, 1877 respectively. 3. The plaintiff received from Baum and Lemberger $10, as consideration for his assignment of these policies. The assignments were not procured by fraud, but the assignees had no insurable interest in the life of Catharfne Hettinger and the assignments were made for speculative purposes. 4. The assignees paid to the Society the subsequent assessments and dues upon these policies as follows: on No. 320, the sum of $294.00 and on No. 621 the sum of $331.00. 5. On June 19, 1887, Catharine Hettinger died. Proof of death was made by the assignees and approved by the Society on July 9, 1878. On July 19th, 1878, Joseph Hettinger by his attorney notified the Society that all insurance on the life of Catharine Hettinger was claimed by himself and by her heirs and legal representatives, and that it should not pay to any one until the right thereto had been legally determined. 6. On October 9, 1878, the Society paid to Lemberger and Borgner on policy No. 320, the sum of $3000, less $90 for certain deductions, a total of $2910 and on the same date to Daniel and John Speck on policy No. 621, the sum of $2000, less $75 for certain deductions, a total of 1925. 7. Subsequently in June, 1881, the plaintiff demanded payment of these poli cies from the defendant, and upon its refusal to pay brought this suit. CONCLUSIONS OF LAW. Upon these facts the plaintiff claims to recover from the society the full amount of the policies referred to with interest, on the ground that his assignments were void, and that the defendant paid the money to the assignees after notice of his claim. It is evident that the plaintiff cannot be regarded with favor in a court of justice. He was a party to a speculation on the life of his wife, received money for his share in the transaction, permitted without objection the assignees to assume his obligations to the Society and to pay more than $600, in consequence thereof, and attempted to repudiate his contract only when there was no more money to pay, and there seemed to be a prospect of money to get. Or to state the case in consideration transferred the legal title to other words. having willingly, and for a these policies and clothed the assignees with at least an apparent right to their proceeds, by virtue of which right and title they obtained from the Society the money it had agreed to pay, he now asks a court to declare his contract void not only as against the assignees but against the Society as well, and to say, that the latter was not justified in relying upon his contract under seal because he afterwards gave notice that he did not intend to stand by it. To succeed in such a claim, the plaintiff must call to his aid some rule of public policy or some rigid rule of law. We have not been referred to any rule of law which compels us to declare the assignments void, and we are of opinion that the plaintiff cannot in this suit ask us to apply the rule of public policy which for bids wagering insurance on human life. It would not be proper to say, what the result of applying that rule would be if the plaintiff had proceeded against the assignees, and we do not intimate any opinion on the questions which might then arise: but it seems clear to us that the plaintiff is estopped from invoking the aid of the rule in this suit against the Society. The case is analagous to that class, in which the question arises, which of two innocent persons must suffer, and the answer there is plain that, as between such persons, the loss must fall upon him whose act enabled the injury to be done: Garrard v. Haddan, 17 Sm.85. The difference is against the plaintiff for here he did not innocently cause the injury of which he complains, but with full knowledge of the fact, which he now urges as making his assignments void, viz: the assignees' want of insurable interest, nevertheless transferred the policies to them and thereby shared in causing the Society to pay them the money. In effect he sent them to the defendant with his authority under seal to take his place, pay his dues and receive the proceeds of the policies; and surely, since the genuineness of the authority is not denied, he cannot be allowed to complain because the Society has exactly carried out its provisions. If these principles are sound, the plaintiffs notice of July 19, 1887, did not better his position. The assignments were genuine, and had not been obtained by fraud, and his notice was a mere declaration that he intended to repudiate them, which the Society if it saw proper might disregard. Other questions might arise, if the assignments had been spurious and notice of that fact had been given before payment. Upon the whole case, therefore, we find for the defendant. To avoid misunderstanding, we desire to say that nothing herein contained is to be construed as deciding, or intimating an opinion upon any questions which may arise between the assignor and assignee of wager policies, or between the assignee of such a policy and the company; or as sustaining insurance of such a character. These matters are left untouched; the point we decide is, that the plaintiff is estopped from raising the question of insurable interest in this case, and that there fore he cannot recover from the Society in the face of his assignment. We have found the facts as stated in the last clause No. 3, in order that the plaintiff may have the case fairly reviewed, and not because we think they are needed to determine this issue. The points of plaintiff and defendant are substantially answered by what has been said above and we need not repeat our conclusions in detail. The plaintiff's objections to the admission of the assignments in evidence are overruled. We direct judgment to be entered for defendant if no exceptions are filed as provided by law. Plaintiff excepts and bill sealed. Abstracts of Recent Decisions. (Cases not otherwise designated are Supreme Court cases.) Agency Fraud--Confidential relation between principal and agent.-A. without authority from B, obtained bids for the erection of a house on B's land, the bids including five per cent commission to A. Subsequently B authorized A to sign a contract for the erection of the house and to supervise its construction, agreeing to give him five per cent. commission for his services. In an action by A to recover his commission from B, Held, that it was for the jury to say whether the two contracts were independeht or not, and if they believe them to have been independent, fair compensation for the service rendered may be recovered.-Galloway v. Walker. (Delaware C. P.) 1 Delaware County Reports, 453. Executors--Rents--Creditors.-Executors having been given authority in a will to rent, and if necessary, sell real estate of testator and appropriate proceeds to satisfaction of debts, rented the real estate for three years, and then relinquished possession under agreement of partition between residuary beneficiaries; Held, that as be cer 221. tween them and such beneficiaries, they (Schuylkill C. P.) 40 Legal Intellingenmust account for rents due and uncollected on the transfer of possession of such real estate.-McKee's Estate, (Allegheny O. C.) 13 Pittsburgh Legal Journal, 392. Criminal Law--Indictment--Where a defendant was charged in an indictment with having falsely pretended that a certain draft was a good and valuable draft, and that he had funds in the National Bank of Wooster, Ohio, to pay it, but the evidence only proved him to have said that there was money in the hands of defendant's partner, who lived in Wooster, Ohio, to pay the draft, and that it was a good draft. HELD, that the variance between the indictment and the proof was fatal, and after conviction upon the charge the defendant may have a new trial. Commonwealth v. Garver, (Phil'a S. C.) 40 Legal Intellingencer 210. Guardian-Rate of Interest-Where a guardian uses trust funds in his business, he is liable for interest thereon at the rate of 6 per cent. Oliver's Estate, (Allegheny O. C.) 13 Pittsburgh Legal Journal 385. Negligence--Duty of Employer.--An employer in a dangerous business, is only required to furnish for his employees the ordinary and usual means of escape in accident.-Marsden v. Haigh, (Delaware C. P.) 1 Weekly Reporter 451. Will--Construction of--Intention of testator.-A will should so be construed that the whole may, if possible, stand, and where two or more parts of a will are, with reference to the same subject matter, so totally repungent to each other that both cannot stand the latter must prevail. A testator is presumed to have an additional purpose for each additional expression, and to intend such a meaning as will give most effect to the context.-David Flaud et al. v. Martin's Executors. (Lancaster C. P.) 14 Lancaster Bar 207. Will-Construction of.-Land was devised to four brothers, charged with a legacy, the interest thereof payable to E. for life, and the principal at her death to her issue, or should she die without issue, the same to "be and remain the property" of the four brothers. Held, that the devise of the land did not include the principle of the legacy; that the latter vested in the four sons at the death of the testator; and that the charge of the legacy did not merge in the fee of the real estate.— Penock v. Eagles. 2 Chester County Reports 34. Will--Construction of.--Testator devised to his son a store on Water street. In another and subsequent item he devised the rest of his estate to his children and their issue, on the final settlement and distribution of his estate. In another and subsequent item he devised unto his executors "all my estate, real, personal and mixed, whatsoever and wheresoever, in trust for the purpose herein specified, and subject to the limitations and reservations Practice. After a long lapse of time an attorney will not be allowed to withdraw his acceptance of service of writ, and appearance and plea, unless it be satisfactorily shown that the plaintiff would be in as good position as when the writ was issued.-Heller v. Walker et al. (Luzurne C. P.) 12 Luzurne Legal Reg-in items before mentioned." HELD, that ister 138. Surety-Liability of-The sureties on the bond of the cashier of an unincorporated association are not liable when this association becomes a chartered company with other privileges and limitations than those to be exercised by the private association.-Bensinger et al. v. Wren et al. as by different parts of the will testator's intention was not to have a final distribution and settlement of his estate until his youngest son reached the age of twentyfive, that the rent of the Water street store was payable to the executors and not to the son prior to that time.-Conrow's Appeal. 40 Legal Intellingencer 221. HAY-Died, on Sunday morning, May 13, at his residence, No. 122 West Market street, William Hay, Esq., aged 47 years, 8 months and 28 days. The following extracts are made from the YORK DAILY: The announcement of the death of William Hay has cast a dark shadow over our entire community. Until quite recently his early taking off was even beyond the possibility of contemplation. Prior to a recent attack of pneumonia, he was apparently in the enjoyment of such health and spirits as would have insured to the eye of an ordinary observer, a sound and vigorous constitution for many years to come. Mr. Hay was yet a comparatively young man, and it is with inexpressible sadness that we chronicle the untimely death of one who while yet in the zenith and fulness of manhood has fallen at midday before the shadows of the evening of life had commenced to gather around him. He was esteemed by all who knew him, because of the purity of his life and the conscientious discharge of his duties of good citizenship, and who added to his virtues all that belongs to the character of an upright and able lawyer. There was no tricky smartness about him, or desire to entrap an adversary by deceit and stealth. He relied upon the truth and merits of his case, and was earnest in making that plain to the court. He was laborious and diligent in the preparation of his cases, and he did not spare himself in faithful work for his large and respectable clientage. He and his late partner, Mr. Cochran, were generally engaged in the trial of the most prominent cases, and now both are gone. Mr. Hay early in life showed a strong predilection for the law. With the aim of becoming a lawyer, he prepared him self for college at the York County Academy, and entered the freshman class at the Pennsylvania College at Gettysburg, Pa., He then when he graduated in 1856. read law with the firm of Evans & Mayer, and immediately after his admission to the bar, in 1858 was invited by the late Hon. Thomas E. Cochran, to become his law partner, which he accepted. This partnership continued until the death of Mr. Cochran about one year ago. On account of a large legal practice Mr. Hay devoted very little time to politics.— Shortly after his admission to the bar he was nominated on the Republican ticket as District Attorney, and notwithstanding a very large Democratic majority in the county, he came very near being elected. During the Tilden and Hayes presidential campaign, Mr. Hay was appointed a state elector. He was a director of the York National Bank and the York Water Company and also their counsel. Several years ago he received the appointment of resident counsel of the Pennsylvania Railroad Company, a very responsible and lucrative position, which he held until the time of his death. He was also the counsel for many of our large manufacturing establishments. In social walks, and in his house and family surroundings he was a model. Gentle and courteous to all who approached him, it was a pleasure and happiness to meet him. His kindly voice and cheerful nature are gone from us forever; but we cannot forget his many exalted virtues, his true and generous manhood, his faithful performance of the duties of his life, and, above all, his consistent Christian example. A large attendance of the bar was had at the time and place mentioned in the following call for a meeting issued by the senior member of the bar, to wit: "The Judges of the court and members of the bar are requested to assemble at the grand jury room this (Monday) afternoon, at |