writing. That it did authorize its agents to take notes instead of money for premiums is perfectly evident, from its constant practice of receiving such notes when taken by them. That it authorized them to grant indulgence on these notes, if the evidence is to be believed, is also apparent from like practice. It acquiesced in and ratified their acts in this behalf. For a long period it allowed them to give an indulgence of ninety days, after that of sixty, then of thirty days. It is in vain to contend that it gave them no authority to do this, when it constantly allowed them to exercise such authority, and always ratified their acts, notwithstanding the language of the written instruments.

"We think, therefore, that there was no error committed by the court below in admitting evidence as to the practice of the company in allowing its agents to extend the time for payments of premiums, and of notes given for premiums, as indicative of the power given to those agents; nor any error in submitting it to the jury, upon such evidence, to find whether the defendant had or had not authorized its agents to make such extensions; nor in submitting it to them to say whether, if such authority had been given, an extension was given in this case."

This being the decision of the United States court, it is supreme authority, as to this court, and it must be regarded as disposing of at least five important questions presented in the case at bar:

First. That the local agent, whether he be a special or general agent, has no authority, by virtue of his powers as such agent, to alter, enlarge, modify, or, in fact, to do any act affecting the rights of the parties to the contract of insur

ance.

Second. That an insurance company may insist upon the enforcement of the contract of insurance as embraced in the written agreement.

Third. The insurance company may waive a forfeiture in its favor, and that the fact that the company has adopted or sanctioned a practice of this kind may be proved by parol.

Fourth. That evidence of a particular transaction of the kind on a former occasion is not sufficient to establish a custom. Fifth. The custom and usage of the company as to extension of time being established, parol evidence may be received to show the extension of time in the particular case.

In the case at bar, there being no evidence tending to prove that the insurance company, by custom or otherwise, has de

parted from or sanctioned a departure from the written contract, the district court erred in allowing evidence to be given as to what is claimed as a contract between Palmer, the agent, and Clevenger, the assured, there being no foundation for the introduction of such evidence. Again, the court, in instructing the jury, made use of the following language:

"A representation may be oral or in writing, and it may be made at the same time with issuing the policy or before it, and its language is to be interpreted by the same rules as the language of contracts in general."

As applied to the case at bar this instruction is erroneous, as contracting parties agreed most solemnly that, as to this contract, no statement of an agent should be binding upon the parties unless in writing, and this agreement must prevail.

The following question was propounded to the witness, Clevenger: "State what occurred, if anything did occur, between you and Mark M. Palmer, and what representations, if any, were made by said Palmer to induce you to take the life insurance policy in question."

To this offer the defendant objected, for the following reasons: "Because all conversations and agreements between the witness and said Palmer were merged into the written application then signed by said witness, and the policy afterwards issued to the plaintiff, which was in writing, showing upon the face thereof that said Palmer could not vary the terms thereof. Because said Palmer was not a party to said contract, and had no authority to make any representations contradictory to the same, which fact the plaintiff well knew from the face thereof. Because no proof has been introduced that the agent had authority to make any other inducements than such as are in writing, and the defendant is not bound by such statements." These objections were over ruled.

The evidence here given was manifestly improper. The objections to the evidence were timely, and should have been sustained.

Among other instructions asked by defendant's counsel we find the following, which, we think, were erroneously refused;

"Ninth. If the policy recites on the face thereof that said agent had no authority to make, alter, or discharge contracts, and that all the agreements were in writing, then said agent, Palmer, had no authority to make any of the alleged representations or agreements claimed by the plaintiff; and even if they were made they are void as against the defendant, for

when the plaintiff accepted said policy she was bound to know it contents, and was bound to know said agent was not a party to said contract." Refused.

"Eighteenth. Even if the jury should find that the represesentations and agreements claimed by plaintiff were actually entered into, their verdict must be for the defendant, because neither the insured nor agent complied with the express directions of the company in altering or changing the conditions of the contract, and the act by the agent cannot be considered as a waiver of the conditions by the company so as to bind it, or in any manner affect its rights." Refused.

"Twenty-first. Any agreement or statement by the agent or plaintiff was bound to be in writing, and submitted to the defendant at its general office, with the application, and you are instructed not to take into consideration parol statements in making up your verdict." Refused.

Without pursuing this matter further, we are clearly of the opinion the judgment of the district court should be reversed. It may be inferred, from what has been said as to the right of an insurance company to extend the time for the payment of premium notes, or to waive a forfeiture, that it follows that the company may lawfully contract with a particular person taking insurance on a different plan or basis than applies to all others.

Such however, is not our judgment. Over one hundred and forty-seven thousand individuals have insured in defendant's company, by the terms of which, taking the agreement in this case as a basis, it appears that, on the surrender of the policy, the party surrendering is entitled to receive the true and equitable value of the policy surrendered. This being so, we do not see how this rule can be changed, not even by the officers of the company. A change to any other plan would be a fraud upon ever individual holding a a policy in the

company.

Much has been said, upon the argument of this case, about the fradulent conduct of defendant, or defendant's agent. There may have been-indeed, it is apparent, if the testimony of Clevenger is true, there is a bold attempt at conspiracy and fraud on the part of Clevenger and Palmer to defraud the insurance company. If the testimony of Palmer is true, then he is relieved from the suspicion.

The plaintiff alleges cash payments amounting in the aggregate to $390, and claims that by the terms of the agreement she is entitled, on demand, to the return of v3-21 (no. iii) (321)

$351.59, leaving to the insurance company the sum of $39.06, and this sum (say nothing about the small amount of interest on instalments made) is to cover all the expenses, percentage of agents, and medical examination, and the like, as well as compensation to the insurance company for carrying a policy of insurance of $5,000 for four years. The proposition is remarkable- the fraud is apparent. Let the judgment of the district court be reversed, and the cause remanded to the district court, with directions that the action be dismissed, with costs.

SHANNON, C. J., dissents.

ROBERT W. COLE and others, Respondents, vs. S. N. CADY and others, Appellants.

Where, in proceedings instituted for the recovery of the possession of a certain mining tunnel claimed to have been obtained by the defendants from the plaintiff through fraud, the court, on an order to show cause, granted a temporary injunction having the force and effect of a writ of restitution. Held, that no appeal would lie from such order. BARNES, J., holds that section 20, c. 31, Rev. St., authorizing the granting of temporary injunctious, having the effect of writs of restitution, is valid.—[ED.

pos

MOODY, J. This was an action brought by the respondents (plaintiffs below) in the district court of Lawrence county, against the appellants, (defendants below,) to recover the session of a certain tunnel situated in a mining claim in such county, the claim being called and known as the "Old Brigg" mine.

The plaintiffs allege prior actual occupancy and continued right of possession; that defendants, by fraud, and during the temporary absence therefrom of said plaintiffs, entered upon and into said tunnel; still retain the possession thereof; a

refusal to surrender upon demand; and pray for an injunction having the force and effect of a writ of restitution, and for such other and further relief as by law and right they may be entitled to, and for costs.

The defendants answer, by what may be properly characterized as a combined answer and demurrer, as follows:

"And now come the defendants, and for answer to the complaint of plaintiffs in the above entitled cause deny each and every material allegation contained therein; and for a further answer to the complaint of plaintiffs, defendants allege the fact to be, the facts stated in said complaint do not constitute a cause of action; that the same is not within the jurisdiction of said court; that the statute upon which said action is based is unconstitutional; that it is not within the jurisdiction of the court to issue a writ of restitution prior to the rendition of a judgment; that the same must be based upon a judgment, and a judgment cannot be rendered against defendants without the interposition of a trial by jury."

The complaint, verified, together with some affidavits not appearing in the transcript, was presented to the then judge of the first judicial district, who thereupon made the following order to show cause:

"On reading the within complaints and affidavits introduced on behalf of plaintiffs, ordered that said defendants (naming them) show cause before me at chambers, in Deadwood, Dakota, on the ninth day of April, A. D. 1878, at the hour of 10 o'clock A. M., why an injunction having the force and effect of a writ of restitution should not issue as prayed in said complaint.

“Done at chambers, Deadwood, D. T., this third day of April, A. D. 1878.

"GRANVILLE G. BENNETT, Judge."

The bill of exceptions recites that upon the return of the order to show cause at an adjourned day the cause came on for hearing before the judge upon the complaint. Order to show cause, affidavits of plaintiffs, and answer and affidavits of defendants, although no affidavits, or papers, or proofs upon which the hearing was had, or the order hereafter mentioned was granted, appear in the transcript, save such verified