Page:Federal Reporter, 1st Series, Volume 7.djvu/188

 176 FSDEKAL BEFOBTEB. �Ins. Co. 43 N. Y. 283; Robert v. Ins. Co. 2 Disney, 106; S. C. 2 Big. 141; S. C. 1 Big. 634; and Howell v. Im. Co. 44 N. Y. 276, with others that might be cited to same effect, have no application to a case like this, and for the plain reason that there is a very essential distinction between the under- taking of the maker of a negotiable promissory note with a condition like that found in this case, and that of adrawer of a bill of exohange. The one is an absolute and unconditional promise to pay, and if not otherwise expressed, as these cases properly hold, the duty of the maker is to hunt up the cred- iter and pay him wherever found, and no demand is necessary to complete the forfeiture. The other is only a conditional ■promise to pay, and is itself defeasible if the condition is not complied with by the holder of the paper. This conditional promise is nowhere better expressed than in one of the cases cited by the learned counsel for the defendant : �"The uadertaking of the drawer is that in case the bill is presented for acceptance the drawee will accept, and that he will pay the bill upon due presentment for payment, whether it has been presented for accept- ance or not ; and if the drawee refuses to accept upon due presentment for such purpose, or refuses to pay in case payment is demanded at the maturity of the bill and notice of such refusai is given, then that the drawer will pay. His liability is conditional." Plato v. Beynold», 27 N. Y. 586, 591; 1 Daniell, Neg. Inst. (2 Ed.) « 479, 571. �These distinctions were ignored by the agents of the Com- pany in this case, as they are now by counsel in argument, and therefore no attention was paid to them. The resuit, in contemplation of law, is that this premium was paid by that draft, or that, having failed to complywith these con- ditions, the holder of the draft has not put the policy-holder in default of payment. The contingency provided for in the forfeiture clause of the policy has not occurred. A draft was taken in payment, with a condition that the company would do certain things, as above described, or on failure to do these things all obligation to pay it should be discharged. Having by its negligence discharged the liablilty on the draft, it cannot now, as I have endeavored to show, repudiate the agreement and rely on the original consideration, eithez ��� �