Page:Federal Reporter, 1st Series, Volume 5.djvu/251

 PBNDLETON ». KNibKERBOCKEE LIFE INS. 00, 239 �Company holding a draft of the life assured in pa'rt payment of à premium under a policy forfeiting it if the draft be net paid at ma- turity. �6. LrPE iNBtrBAMCH — Pkoop of Loss— When not Necessart.— If due notice of the death of the life aseured be given, and the company claim that the policy is forfeited and repudiate the obligation, mak- ing no demand for proof of loss, it cannot claim that the suit is pre- maturely brought because such proof has not beon filed with it as required by the policy. �6. Samb Scbiect— Deduction of Unpaid PiiEMiuii. — If the company take commercial paper in part payment of the premium, and by its laches the drawer be discharged, it teems that the legal eflect of the transaction is that the premium is paid by the d^aft taken, and the loss is on the company, and it cannot deduct the amount of the draft from the amount of Insurance ; but in this case, by consent of plain- ttŒs, it was done. �Humes fe Poston and Lowrey Humes, (with them,) for plaintiffs. �H. W. Johnson and E. L. Belcher, for defendant. �On the fourteenth of July, 1870, Dr. Samuel H. Pendletonj of Mount Auburn, Arkansas, took ont a policy of Insurance, amounting to $10,000, in the Knickerbpcker Life Insurance Company, the premium being made payable by draft on Moses Greenwood & Go., cotton factors,. New Orleans. In 1871, when the premium fell due, Dr. Pendleton gave Greene & Lucas, agents for the Knickerbocker, a time draft on Green- wood & Go. for $325, due 90 days after date, and the balance in a sight draft on the same house, which latter draft was paid. They delivered to Pendleton, at the time they took these drafts, a renewal receipt in the uaual f orm acknowledg- ing the receipt of the premium in fuU, and continuing the risk for one year. Greene & Lucas put the time draft in the Union and Planters' Bank, to be sent to their bank at New Orleans, with instructions not to protest. The draft was presentsd for acceptance on the twenfcy-ninth of September, and aceeptance refused; no protest was made, and no notice was given except by letter of Greene & Lucas, on the second of October, 1871. The draft was then sent to New Orleans for payment, and there is a dispute as to whether it was presented October lith, when it fell due, being without grace, or on the last day of ����