Page:Federal Reporter, 1st Series, Volume 7.djvu/187

 PKNDLBTON V. KNICKBEBQCIKBE LIFE INS. 00. 175 �of his business as a planter that he would not be in funcls till bis crops matured, took a long-time dxaft on this com- mercial bouse for the premium -wbieb was paid. Tben, wben the second premium waa about to fall due, the prooess is repeated. Now, wbile it must be admitted that the com- mercial law did not require it, acting in a spirit of liberality and fairness, it does seem to me, tbat, looking at all the f acts, if the Company intended to rely upon the forfeiture with that strictness they now do, these agents should have forwarded the draft promptly — far more promptly than they did — for acceptance, with instructions to protest and give notice if not accepted, so that Pendleton would have timely waming to prepare for payment and save the immense forfeiture that - impended over bim. Failing this, the least they could do was to forward it promptly for payment, wbicb.they did ; but by the neglect of the New Orleans agent, it was not pre : sented, — certainly not at maturity, and, as I believe from the circumstances, never at all. Tbis is not a case, as Mr. Jus- tice Woods said, in T/iompsow v. Ins. Co. 2 Woods, 547; S. G. 5 Bigelow, 8, wbere there is an attempt to collect the policy without paying the premium, but wbere there is an attempt to avoid payment of the policy by taking advantage of the literalism of the contract to defeat the ordinary efifect of that negligence on the part of the company whicb would prevent them from recovering on thia draft if this were an ordinary transaction. Wby there sbould be any different tesult of this negligence wben the consideration of the draft is a premium of life Insurance is beyond my comprebension. It is true, there was a f urther seeurity for payment in the con- dition for a forfeiture, but that flecurity was descjdbed ,by, and depended upon, the termsof the contract; not only those contained in the language of the draft and the policy, if you please, but likewise those imported into the contract by the law niercbiant wben this negotiable instrument. wast^iken in payment of the premium. .;, > ■ i �Tbe cases of Pittv. Berkshire, IQO MaBs; 500; Boehnery. Ins. Co.i 63 N. Y. 160; Thompson y ^Jns. Cc., supra; I}aker\. ��� �