ture were wise in their generation when they objected to being tormented before the time, and so we think that if a family is to be rent wish dissension, and tormented with the strife and anxiety incident to a 'will suit,' it should be at the last possible moment, and after the principal figure in the tragedy is safely ensconced under the daisies. We would not have believed upon any less respectable authority than the ALBANY LAW JOURNAL that any legislative body would entertain such a proposition, but it seems that sure enough there is nothing new under the sun, that the gentleman who introduced the bill into the New York general Assembly is not without a prototype, and that a similar bill was not only introduced into the Michigan Legislature but actually passed. It is just however to the State to add that the Supreme Court, with admirable 'horse sense,' held that the statute was inoperative, and that the courts could not be called upon to administer it. * * * In the following sentence the court effectually disposes of the question: "The

arranged and expressed in the way easiest for reference and easiest to understand. Here again I will take the dictionary for illustration. Nothing can be more unscientific than alphabetical arrangement, yet nothing is so easy. To the verbal analyst other methods would appear more logical. For instance, he might say, we should arrange the words according to the subject, or perhaps according to their roots; he would never think that an arrangement according to their first letters was philosophical. And yet who would buy for ordinary use a dictionary in which the words were arranged according to subjects, as for example, all relating to minerals put in one place, and all relating to animals in another, or all derived from the Greek in one part of the book, all derived from the Latin in another, and all from the Aryan in still another."

In an address before the Yale Kent Club at New Haven on the 19th ult., Mr. David Dudley Field gave the following forcible statement of the sources of the common law: "Our law is a heterogeneous mass, made up of incongruous materials, indifferently put together by different hands at different times, and without a comprehensive plan. We have first what is called the common law, that is, a law of ancient English usages and of precedents made by judges; then we have the Constitutions of government, provisional, State and National, which, during two hundred and fifty years, we have been receiving from England, or constructing and changing for ourselves, and besides these we have the statutes enacted by our own legislative bodies for eight generations. As these different laws had different origins, so their records are different; some are recorded in the archives of government, but more in the reports of courts, and these courts are not of one State only but of all the States, and of the Federal government, and also of the courts of the mother country, and I may add of the colonies of the mother country, wherever the English tongue is spoken. How difficult, then, how tedious, must be the task of dealing with this immense conglomeration. Yet dealt with it must be."

As to the proper construction of a general code Mr. Field said: "There are two aspects of a code; one as a scientific treatise, the other as a work useful and convenient for daily use. In the one view the code should be arranged and expressed according to the most scientific theory of legal rights and duties, and the dependence of the different parts one upon another; in the other view it should be

NOTES OF CASES.

IN Beckwith v. Oatman, 43 Hun, 265, it was held that a druggist is not liable for the mistake of his clerk in putting up a prescription unless negligence or want of skill is shown. The court, Childs, J., said: “The question of the want of skill or negligence of the defendant's clerk, upon which the plaintiff's right to recover wholly depended, was taken from the jury by the court, and they were, in effect, instructed that it was immaterial, if a mistake was made, whether it occurred by reason of the want of skill or negligence of defendant's clerk, or otherwise. Brown v. Marshall, 47 Mich. 576; S. C., 41 Am. Rep. 728, is in point. In that case the trial judge charged as follows: 'It is the duty of druggists to know the properties of the medicines which they sell, and to employ such persons as are capable of discriminating and dealing out according to prescription; and if the defendant's clerk in this case sold and delivered to plaintiff a poison instead of a harmless drug, and the plaintiff took it, supposing it to be harmless, and was thereby caused a suffering and a serious injury, the defendant is liable for the damages so caused in this suit.' Cooley, J., giving the opinion of the court (p. 582), remarks upon this instruction as follows: In this instruction there is no hint of negligence as a necessary element in the right of action. The duty is correctly stated, and it is assumed that a right of action will arise from a failure to perform it, irrespective of the reasons. If the judge is wrong in this the judgment cannot stand, for though there are other instructions which seem to be inconsistent with this, we cannot know that the jury did not shape their action by this rather than by any other. The question then is whether the delivery at a drug store of a deleterious drug to one who calls for one that is harmless, and a damage resulting therefrom, will not merely tend to make out a right of action, but of themselves give a right of action, even though there may have been no intentional wrong, and the jury may believe there is no negligence. That such an error might occur,

without fault on the part of the druggist or his clerks, is readily supposable. He might have bought his drugs from a reputable dealer, in whose warehouse they have been tampered with for the purpose of mischief. It is easy to suggest accident after they come to his own possession, or wrongs by others of which he would be ignorant, and against which a high degree of care would not give perfect protection. But how the misfortune occurs is unimportant, if under all circumstances, the fact of occurrence is attributable to him as a legal fault. The case, it must be conceded, is one in which a high degree of care may be justly required. People trust not merely their health but their lives to the knowledge, care and prudence of druggists, and in many cases a slight want of care is liable to prove fatal to some one. It is therefore proper and reasonable that the care required shall be proportionate to the danger involved. But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability when mistake has occurred.' And upon this ground alone the judgment upon the verdict in favor of the plaintiff was, in that case, reversed. In Carpenter v. Blake, 50 N. Y. 696, which was an action against a surgeon for malpractice, it was claimed by the plaintiff that the dislocation was never reduced, and by the defendant that the dislocation was properly reduced, and the joint remained in its place until the defendant was discharged from the case. Evidence was given tending to show that defendant was reputed to be and was a skillful surgeon. The court charged, in substance, that it was immaterial to the inquiry whether defendant, at the time he undertook the reduction of the dislocation, was or was not reputed to be, or was or was not a skillful surgeon. This was held to be error, for which the judgment was reversed. In the case at bar the defendant gave testimony tending to show that no mistake was made by his clerk in putting up the prescription, and insisted upon that fact in his defense. Testimony was also given as to the qualification and length of service in the drug business of Penfold, his clerk; also detailing all the acts of Penfold in preparing and delivering the medicine; the length of time the preparation used by him had been in the store; from whom the same was procured. We are of the opinion, that under the proofs, the defendant was entitled to have the question as to the competency of his clerk, and the exercise of due and proper care on his part, submitted to the jury."

In Hartwig v. Bay State Shoe and Leather Co., 43 Hun, 425, "the plaintiff was a convict in the Kings county penitentiary. The defendant is a corporation. The county authorities 'let and farmed out' to the defendant a large number of convicts to be employed in making boots and shoes. The defendant hired the labor and service of the convict. The plaintiff was one of the men included in the contract. The prison authorities, by its terms, were

to enforce the performance of the day's work, and the defendant was to furnish all the tools, machinery and stock necessary' for the employment. The plaintiff, while using one of the machines designed to mould the soles of shoes, was injured. The action is based upon an allegation that the machine by which the convict was injured was out of repair and dangerous. While the usual relation of master and servant did not exist, because the labor furnished was compulsory, the defendant must be held to have owed a duty to the convict in respect to the machinery to be furnished for the purpose of the work. This follows from the covenant itself. A contract for machinery carries with it an obligation to furnish machinery fitted to and sufficient for the work, and that it shall be kept in constant repair. The contract, it is true, was with the county of Kings, but the convict was essentially a servant of the defendant. By his crime he lost the power over his own freedom to contract and labor, and his services were let out to defendant as minors and apprentices are let out, by the authority of a temporary superior. He was defendant's workman, though his wages went to the county of Kings." A recovery was sustained.

In People v. Monteverde, 43 Hun, 447, the defendant was tried upon an indictment charging that he on Sunday, May 9, 1886, and on divers other Sundays, was the owner, occupant, proprietor or lessee of a certain park and premises in Queens county, at which time and place he willfully, wrongfully and unlawfully did permit and allow a large number of people to assemble to play and witness a game of base ball, and then and there allowed and permitted obscene, vulgar and profane language to be used, and did permit and allow great noise, confusion and uproar then and there upon the said premises. Held, bad. The court said: "There is no charge that he was present at the game, or was aware of the assemblage of spectators, or that he induced the people to play or witness the game, or derived any benefit therefrom. Every allegation in the indictment may be true, and yet the defendant be perfectly innocent of any crime. If the people invaded the premises of the defendant and played the game, and he found it beyond his power to prevent them and walked away, he permitted and allowed the transaction by not preventing the same, and yet such conduct on his part would not constitute the crime of nuisance. He owed no duty which he omitted to perform, and he did no unlawful act. There must be something more than mere negative tacit permission or allowance to constitute the crime of nuisance. There must be some unlawful action or participation of the accused, and that element is entirely wanting in this indictment." Barnard, J., dissented.

In Baldwin v. Morgan, 43 Hun, 355, the plaintiff, as a tenant, occupied the first story and basement of a portion of a building owned by the defendants, which formed part of the south-west corner of

The assured, at the time of issuing the policy. was a clerk in the office of the Wabash Railway Company, but shortly afterward went upon the railroad in the capacity of brakeman, and was subsequently promoted to the position of conductor of a freight train. It appears from the evidence that part of his duty as such conductor was to couple and uncouple cars of his train; and while thus engaged, on the morning of the 11th day of February, 1883, he was caught between the ends of projecting timbers with which the cars were laden, and so injured that he died at 8 o'clock A. M. of that day. The consent of the company to his entering upon the prohibited employment had not been obtained. After engaging in the employment of braking, the assured wrote to the State agent of appellant, advising them that he was so engaged temporarily, while expecting something better, and asking them what change would be necessary in his policy, if any. This was on the 20th day of April, 1882, and on the 1st day of May these agents replied as follows:

CHICAGO, ILL., May 1, 1882.

“D. A. Amerman, Esq., 309 Maple Street, Peoria, Ill. -DEAR SIR: Your favor at hand. I am sorry the company will not issue permit for your present business. Let me tell you what to do. Take out an accident policy for six months or a year. In the meantime you may quit braking, when our policy would be good. The accident policy pays you in case of death by or resulting from accident, and pays you a weekly compensation why you are laid up. You cannot probably get a life policy in any first-class company for your present business. The accident policy will not cost you a large amount, and when you quit braking you will have our policy, which is as good as you can get. Mead & Dexter, of this city, have a good accident company. I will have them write you.

It is obvious that the assured, by entering into this employment, committed a breach of the condition of the policy; and it is not claimed that the company is liable unless it has waived the condition or has done some act that will estop it from interposing the breach of the condition as a defense.

The acts and declarations of the company relied upon as estopping the company from setting up a breach of the condition mentioned as a defense to this action, occurred after the receipt by the assured of said letter from Dean & Payne, and are, in substance, that on the first day of July, 1882, the company sent a notice to the assured that a semi-annual premium on his policy would be due on the 11th day of August foilowing, at noon, and unless the same was paid the policy would be subject to forfeiture therefor, etc., and containing the statement, among others, that “ bers neglecting to pay are carrying their own risk. Agents have no right to waive forfeitures. ** ** Prompt payment is necessary to keep the policy in force." That before noon of August 11 the assured paid the premium, and received from the company's agent the following instrument:

mem

This payment and receipt shall not have force or effect to continue the policy beyond the period above stated. J. W. SKINNER, Secretary, Ills.

And that afterward, and on the 1st day of January, A. D. 1883, a like notice in all respects as that of July 2 was sent to assured, notifying him of the semi-annual prémium falling due February 11, 1883. These facts are properly replied to the plea of the company setting up the breach of the condition in the respect named as a defense.

In the court below appellant company contended that the assured paid the premium with full knowledge that the company would not carry a policy on his life during his continuance in employment in the capacity of brakeman, etc., and he made the payment, in accordance with the suggestion of the letter of the State agents, for the purpose of preventing the lapsing of his policy, and for no other purpose, and that the company was not therefore estopped by the acceptance of the premium.

At the trial, to maintain this contention, it put its local agent, Fagar, upon the stand, who, among other things, testified: "Am agent for defendants. Knew Mr. and Mrs. Amermau. Became acquainted with them about the date of this policy. David A. Amerman paid all the premiums that were paid upon such policy. The date on the policy was the first one, and the second on August 11 following. Question. State what explanation, if any, you gave Mr. Amerman at the time of delivering this last receipt to him in reference to it. [Objected to. Objection overruled.] Answer. Well I told him that if he got hurt while braking on the train his policy would not amount to any thing, but if he should die in any other way he could collect his policy; and I guess he got the same from the company. He had written to the company before he came to me. Q. What reply did Mr. Amerman make to that, if any? [Objection by plaintiff. Objection overruled.] A. Well he said he would pay it that way-with that understanding—which he did. 2. Was there any thing else said at that time, that you recollect of, as explanatory of your question or his answer? A. I don't know as there was. On motion of appellee the court excluded from the jury the three foregoing questions to and answers of the witness, and the defendant by its counsel excepted. It also appeared that the assured at the time of his death had an accident policy of $1,000 upon his life, but when the same was taken out does not clearly appear.

It is contended by appellee that the company, having received the premium with full knowledge of the breach of the condition of the policy, is estopped from insisting upon such breach as a defense. It has been repeatedly held in this State and elsewhere that the receipt of the premium by the assurer, after knowledge that the condition of the policy had been broken, would amount to a waiver of the condition. Commercial Ins. Co. v. Spankneble, 52 Ill. 53; S. C., 4 Am. Rep. 582; Reaper City Ins. Co. v. Jones, 62 Ill. 458; Lycoming Ins. Co. v. Barringer, 73 Ill. 230. An examination of the cases so holding however will, it is believed, show that the assured in each case, in paying the premium, was induced to do so, relying on the validity of his policy, and that the act of the company therefore in receiving the premium would estop it from setting up the forfeiture.

In Commercial Ins. Co. v. Spankneble, supra, the company sought to interpose as a defense facts constituting a breach of a condition of the policy which were known to the agents to exist when the policy issued, and the court says: 66 To permit the company, when the omission was by their own agent, to now avoid the payment of the loss, *** would amount to a fraud. * It would be a fraud to permit

*

*

the company to receive the premiums when they knew that the policy was not binding, and which they never intended to pay."

Conditions like those under consideration are inserted in the policy for the benefit and protection of the insurer, and may be waived either before or after breach thereof; and when the agent of the company, through whom it must act in dealing with the public, knowing of the right of forfeiture, permits the assured to pay the premium to the company, he relying ou his policy as valid and subsisting, the company will be held to have waived the condition. It would be grossly inequitable to permit the company to receive the premium from an assured, who was induced thereby to rely upon his policy for indemnity, and then insist upon a forfeiture from facts known by it to exist when the premium was paid. This we understand to be the rule laid down by text-writers, and supported by the adjudicated cases.

May, in his work on Insurance, 507, thus states the rule: "Au estoppel arises when the insurer, having knowledge of the facts to which he has the right to take exceptions, or which constitute a defense against any claim under the policy, if he chooses to avail himself of them, so bears himself thereafter in relation to the contract as fairly to lead the insured to believe that the insurer still recognizes the policy to be in full force." It is to be observed that it is the effect upon the assured that gives vitality to the estoppel, rather than the purpose and intent of the insurer; and unless the conduct of the insurer has in some way misled the assured, or induced him to do some act, or neglect to do something, to his prejudice, in relying upon the acts or declarations of the insurer, there can be no estoppel. May Ins., supra.

It is said by this court" that the doctrine of estoppel in país is based upon a fraudulent purpose or fraudulent result. If therefore the element of fraud is wanting there is no estoppel, as if both parties were equally cognizant of the facts, and the declarations or silence of the one party produced no change in the conduct of the other, he acting solely upon his own judgment. There must be deception and change of conduct in consequence." Davidson v. Young, 38 Ill. 152.

Again it is said: "There must be a change of conduct induced by the act of the party estopped, to the injury of another, in order to prevent him from showing the truth. If the element of fraud or injury is wanting, there is no estoppel. Flower v. Elwood, 66 Ill. 447; Powell v. Rogers, 105 id. 318.

There can be no fraud if the parties to the transaction are equally informed of all the facts, and act independently upon such knowledge equally possessed by both parties. Nor can it be said that one party has been misled or induced to do an act by the conduct or declarations of another, when there has been no suggestion of falsehood, or suppression of the truth, by silence or otherwise, and the party acts, after full knowledge, upon his own judgment, or according to his own inclination. If as before substantially stated, the assured paid the premium under the belief, fairly induced by the acts and declarations of the agents of the defendant company, that the policy was to be in force while he continued in the prohibited occupation, the acceptance of the money by the company would estop it from insisting upon the condition of the policy as a defense. The mere act however of receiving or collecting the premium by the insurance company, with knowledge of an existing right of forfeiture, has, so far as we know, never been held to estop the company from setting up such forfeiture, if the assured had no reason fairly to conclude from the acts and declarations of the company, or its

agents, that the forfeiture had not been or would be waived when he made the payment of the premium, or unless the payment was made in reliance upon the validity of his policy, induced by the acts, declarations or silence of the company. If the assured knew or understood that the company intended to insist upon the forfeiture for breach of the condition of the policy under consideration if he came to his death by reason of or while in an employment in violation of such condition, and with such knowledge, for the purpose of keeping his policy from lapsing for non-payment of premium, so that it might be in force after he should quit such employment, as suggested by the company's State agents, or for any other reason he might deem to his advantage, paid the premium, the company might rightfully accept it for the purpose for which it was paid, without being guilty of fraud in setting up the breach of such condition, which it never consented to waive, and which the assured knew it intended to insist upon.

Manifestly then it was material to the inquiry to know whether the payment of the premium by the assured, August 11, was made, relying on the validity of his policy, induced by the acts or declarations of appellant company, or whether he knew that the company intended to insist upon the condition of the policy if death ensued in consequence of his employment. It might be greatly to his advantage to suspend the force of his policy temporarily while so engaged, and revive it when the necessity for such employment ceased. It not unfrequently happens, we presume, that it is necessary or desirable for persons having life insurance to engage temporarily in some occupation, or travel for business or pleasure in latitudes prohibited by their policy. In this case the assured wrote to the State agents that he had entered the employment on the train temporarily, while waiting for something better, and was promptly informed by the company, through these agents, that the company would not carry the risk while he was so engaged.

If the position contended for by appellee is correct, then it follows that the insurance company, though acting in the utmost good faith, could not receive the premium at the request of the assured, and for his benefit, with full knowledge on his part that the company would not carry a policy on his life, or waive its right of forfeiture while the prohibited occupation continued, without being estopped from asserting its right of forfeiture if death ensued from such employment. It would follow that if the assured, from necessity, or because he might find it profitable or desirable, engaged temporarily in an occupation, or travelled in a latitude not permitted by his policy, there is no alternative. He may not pay his premium to prevent his policy from lapsing for non-payment of premium, and thereby keep his policy in condition to revive when he resumes an insurable occupation, or returns to a locality in which by the terms of his poliey he is permitted to reside; but he must permit the policy to lapse, and reinsure when the temporary prohibited occupation or residence has ceased, if he desires so to do, and remains insurable at such increased rate of premium as his increased age may demand. We are not prepared to so hold.

It follows therefore that the evidence of the witness Fagar, as it tended in some degree to show for what purpose the premium was paid, and whether or not the insured relied upon his policy as for valid and subsisting insurance while he was engaged in braking on the trains of a railroad, was improperly excluded by the trial court. All of the facts and circumstances attending the payment of the premium, and illustrative of the acts of the parties in respect thereto, were, we think, pertinent to the issue made by the