Page:Federal Reporter, 1st Series, Volume 7.djvu/182

 170 ���FEDERAL REPORTER. ���for^cceptance, relteved the defendant from its obligation, if any existed, to present the aame for payment, in the absence of further notice that the same would be paid when due. �(3) That if the jury believed, from the evidence, either that the drawer had net placed any funds in the hands of the drawees to meet the draft at 'ts maturity, or that It waa in fact presented for payment at or after its maturity, the policy became void and of no effect before the death of the party whose hfe was insured thereby, and the plaintifEs are not. entitled to recover. �The court refused to charge in accordance with either of said requests, and the defendant thereupon duly excepted. �Henry W. Johnson and Edward L. Belcher, for the motion. �Humes e Poston and Lowrie W. Humes, contra. �Hammond, D. J. The most mature reflection has not con- vinced me that there was any error occurring on the trial of this case for which a new trial should be granted. The de- fendant corporation, in order to avoid liability upon the pol- icy, is compelled to assume that they had absolutely no duty whatever to perform in relation to the draft, and that what they did do towards presenting it was merely ex gratia. It was conceded at the hearing that if the money had been in the hands of Greenwood & Co. to pay the draft on the four- teenth day of October, 1871, when it was due, the company would have been'liable if it hadfailed to present it on that day, and the only question of fact which the company desired to try was whether or not Dr. Pendletonhad thus placed funds in the hands of his merchants to pay the draft. This con- cession seems to have been receded from in the printed brief submitted on this motion for a new trial, and it is now said : �" That the receipt of the draft imposed no obligation upon the com- pany to do anything beyond presenting it for payment, at or after matu- rity, at the place designated therein, and we very much doubt whether we were bound to go as far as we did on the trial, and show a presenta- tion in fact, for the production of the draft on the trial prima fade estab- lished its non-payment, and the burden of proof to show that it would have been paid on presentation rested on the plaintifC." �This seems to still concede a necessity for presentation at some time, and, in order tomeet the exigencies of tl^e proof, the occasion of presentation for acceptanceis taken as acom- pliance with that duty;. and, inasmuch as acceptiance wasre- ��� �