that the contract should not go into effect until the policy had been delivered and the premium paid, relate only to the punctum temporis when the insurance is to commence. It is true that a contract of in. surance might be made which would be in all respects binding on. the parties, although the policy would not become effective-that is to say, the insurance would not begin to run-until the policy had been delivered and the first premium paid, one or both. Indeed, even in this case, it is not impossible that a binding oral contract for this insurance, valid in the law against both parties, might have been made in the state of New York, but on such terms that the insurance should not become effective until the policy was delivered and the first premium paid. Oral agreements for insurance have been enforced, alike at law and in equity, even though no policy had been delivered and no premium paid. Nevertheless there is nothing in the pleadings in this case to sustain any proposition of this character on the part of the defendant, and, on the face of the record, the case is a clear one of a contract for life insurance made in Massachusetts between a foreign corporation, admitted to do business therein, and a resident of Massachusetts, with a delivery of the policy and a payment of premium all taking place within the same state.

Such being the fact, the statute to which we have referred must be accepted as a law which governs this contract from motives of public policy. That such statutes, and that the application of them to contracts in Massachusetts, are valid and must be recognized by all courts is too well settled to need discussion. Nevertheless, the defendant insists that, inasmuch as there are some provisions in this policy which adopt the law of New York, and as also the policy was payable in New York, the statutory provision which we have cited does not apply. Defendant puts the case on the ground that parties making contracts may, under some circumstances, agree for the law of a state or country foreign to the place of contract. As a general principle, this cannot be disputed; but also clearly it has no application where the result thereof would be to accomplish an evasion of statutory provisions declaring a rule of public policy with reference to contracts made within the jurisdiction where the legislation. is enacted. Exceptions seem to have been made in reference to usury statutes, and perhaps to some other peculiar legislation, but such instances do not furnish the rule.

Therefore, under the first and second paragraphs as amended, the only question which can arise is whether the copy of the application is a correct one, within the meaning of the statute. Within the ordinary interpretation of the word "correct," it is not. The case is not one of idem sonans, nor of the omission of letters, nor of parts of a word, nor of any error where what is left raises a reasonable presumption what the original was. It involves omissions of entire words under such circumstances that the legal effect of the application according to the copy would, under some circumstances, be different from its effect as actually drawn. Under those circumstances, no judicial tribunal has a right to say that the statute does not apply, even though the errors may not relate to matters which are essential to the substantial rights of the particular parties in issue. If the court undertakes in this

way to transgress the language of the statute, where can it stop, and by what rule can it determine the extent of its powers in that direction? Not only are we clear on this from the necessary rules of legal construction, but our conclusions are entirely in harmony and fully sustained with and by the reasoning and conclusions of the supreme judicial court of Massachusetts in Nugent v. Association, 172 Mass. 278, 52 N. E. 440. Therefore, so far as these two paragraphs are concerned, it seems to us clear that the demurrer to the answer must be sustained.

With reference to the third and fourth paragraphs of the answer: As we have already observed, each makes the application specifically a part of the pleading. Therefore, on strict rules, they necessarily follow the fate of the first and second paragraphs. Nevertheless, this is, perhaps, too narrow a disposition of them, because they could easily be amended to raise the question which the parties evidently intend to raise, and which is involved in an observation made by this court, as now constituted, at the trial of Hadley v. Society. What was then said has never been reported, but is referred to in the same case on appeal. 102 Fed. 856, 860, 861. That observation was with reference to the rule given at page 466, 165 Mass., and pages 202, 203, 43 N. E. Considine v. Insurance Co., 165 Mass. 462, 43 N. E. 201, already referred to. This court then considered that it would hesitate before it concluded that we are bound by a rule of evidence which might compel us to sit here and see a gross fraud committed upon an insurance company, without ability on our part to furnish relief against it, because, although a paper might not come in properly as an application in the sense that it is to be treated as a warranty, it may yet contain representations which, as representations, operate as a gross fraud on the underwriting corporation. We added that we were not prepared to.. say that a federal court, notwithstanding the decision in Considine v. Insurance Co., "must sit here and exclude, not only the application, but the testimony of the parties who heard the statements made, as to what was said, and thus permit a gross fraud in that way to be accomplished against an insurance company."

The rule stated in Considine v. Insurance Co. had reference to the statute in question here, and to an application a copy of which had not been attached to the policy, and the opinion of the court observed as follows:

"The application in each case not being admissible in evidence, the defendant was rightfully refused permission to show by oral evidence what was said by the insured at the time of his examination by the company's agent, the examining physician, all of which was contained in the application."

In support of this two earlier cases were cited, neither of which arose under the statute in question. This is all that was said on the topic; and, certainly, it is not a very satisfactory disposition of a statute which, having been passed for the purpose of helping out inattentions or misapprehensions on the part of persons insured, then enables such persons to foreclose, without any possible relief for the underwriters, remedies against the grossest fraud, which occasionally, if not in many cases, might be proved clearly by oral testimony without the aid of the application. The statute provides that the

application itself shall not be received in evidence, but it makes no mention of proof of conversations to the support of which the application is not essential; and the general rule with reference to the exclusion of oral testimony has no relation to papers of this character. Nevertheless, the decision in Considine v. Insurance Co. seems never to have been questioned in Massachusetts, and it has been acquiesced in now for a number of years as the undoubted rule of evidence in that state. Defendant in this case saw fit to enter the state and transact business there under a statute which had thus been interpreted. Being, therefore, a rule of evidence arising out of the construction of a local statute, acquiesced in in Massachusetts, we are compelled, notwithstanding our doubts expressed on the previous occasion, to the reluctant conclusion that, as a rule of evidence, it controls this court within the district of Massachusetts. Therefore we

are unable to see any manner in which the defendant can take advantage of any of the propositions which it sought to raise by its

answer.

There will be a judgment that defendant's answer is insufficient in law, and that the plaintiff's demurrer is sustained, with also judgment for the plaintiff for the amount of the policy, interest, and costs.

THOMPSON et al. v. SCHENECTADY RY. CO. et al.

(Circuit Court, N. D. New York. January 3, 1903.)

1. EQUITY-BIll in Nature of Bill of Review-When APPROPRIATE REM

EDY.

Where the rights of persons who were not parties to a suit in equity are affected by the decree entered therein, and they seek to obtain a modification of such decree by setting up matters which occurred pending the suit, but which were not presented to the court, the proper practice is by the filing of a supplemental bill in the nature of a bill of review. 2. SAME-LEAVE TO FILE-NOTICE OF APPLICATION.

A supplemental bill, after decree, in the nature of a bill of review, cannot be filed without leave of court, but it is discretionary with the court whether to require notice to the defendants therein, or the parties to the decree, before granting such leave.

8. SAME-SUFFICIENCY OF BILL.

A bill by property owners on a street for the modification of a decree entered by the court in a suit to foreclose a mortgage on the property and franchise of a street railroad company, to which complainants were not parties, so as to recognize and conform to an agreement made pending such suit between the receiver therein and complainants, and confirmed by the city council, for the permanent abandonment of a portion of the line of road covered by the mortgage, which was carried into effect by the removal of the track and the restoration of the pavement on the street in front of complainant's property. Held to show such equity in complainants as entitled them to a hearing on the merits.

In Equity.

This is an application for an order vacating an order of Mr. Justice Wallace granted July 1, 1902, which order granted leave to file the bill of complaint herein, and also striking such bill of complaint from the files of the court. On the 1st day of July, 1902, Mr. Justice Wallace made an order granting

12. See Equity, vol. 19, Cent. Dig. §§ 588, 1110.

leave to the complainants herein to file their bill of complaint, and pursuant to such order the complainants filed their bill, and on the 8th day of September following filed their amended bill of complaint.

Hun, Johnston & Hand, for the motion.
Edward Winslow Paige, opposed.

RAY, District Judge. The affidavit of Hinsdill Parsons, president of the defendant herein Schenectady Railway Company, states the grounds on which the application to vacate is made as follows:

"The ground of the application is that no notice was served of the application for leave to file the bill as required by law, and that the bill is an improper bill of review, and does not state facts constituting any equity in the plaintiffs, and should not be allowed to be filed as a bill of review in its present form."

On the argument, and in the brief for the defendants, it is urged that the order granting leave to file the bill was improperly granted because not founded on a petition or affidavits. No such point or claim is made in the moving papers, and it is only necessary to say that, the point not having been presented there as a ground for vacating the order, it will not be considered here further than to say it is presumed in the absence of proof that Justice Wallace acted on either a petition or affidavits in the nature of a petition. The affidavit of Mr. Parsons further states, in substance, that the subjectmatter of these actions has already been presented in seven actions for injunctions in the supreme court in the state of New York (77 N. Y. Supp. 889), and that such actions are now at issue, and that such matters have already been presented to such court in applications for temporary injunctions restraining the defendant Schenectady Railway Company from operating its roads. The affidavit then goes on to deny some of the material allegations of such bill of complaint. The amended bill of complaint alleges the ownership or possession and occupation by the complainants, respectively, of certain lots of land on Washington avenue, in the city of Schenectady, and further states how such title was derived; that the Schenectady Street Railway Company was incorporated about February 24, 1886, and, having obtained certain consents specified, it constructed a horse railroad on State street, and from the westerly end of State street northerly along Washington avenue, passing in front of the places of the complainants Thompson, Beattie, the Pecks, the complainants Lansing and Whitmyre, and the respondent Paige, but not going as far north as the southerly line of the premises of the complainant Vrooman, nor in any way in front of or passing any of the premises of the complainants Vrooman and Van Epps; that until July 2, 1891, said company operated the said railroad with horse cars in the summer and sleighs in the winter; that on the 2d day of July, 1891, having the consents mentioned, it changed to an overhead trolley and operated the railroad very irregularly with electric cars in the summer and sleighs in the winter, until it ceased the operation of the road as stated in such bill of complaint. It is then alleged that said railroad company made a mortgage to the Central Trust Company of New York on the 1st day of September, 1891, to secure the bonds

therein described, and gives the boundaries of the property so mort< gaged; that August 15, 1893, one Williams filed in the circuit court in the United States of the Northern district of New York a bill against the said railway company, and that one John Muir was duly appointed receiver of said railway company, and entered into the possession of all its property. The bill of complaint then sets out a petition made by said receiver and the manager of said railway company, praying, in substance, that the running of cars over the portion of the said street railway lying between the easterly side of Church street and Washington avenue and on Washington avenue from its intersection with State street to the Mohawk river bridge, be dispensed with until June 1, 1894, and that the running of the railroad on Washington avenue was then discontinued, and has not been resumed, except as hereafter stated; that authority was given to said railway company to discontinue the running of cars from Church street through State street to Washington avenue until December 1, 1894, and then states that on or about December 14, 1893, the said trust company of New York filed its bill of complaint against said street railway company for the foreclosure of said mortgage, and that June 19, 1894, one George W. Jones was duly appointed receiver in said action. The bill then alleges, in substance, that said receiver and the property owners on Washington avenue applied in October, 1894, to the common council of the city of Schenectady to have the running of cars at and on Washington avenue at places specified permanently discontinued, the track removed, and the pavement relaid, and it was stated in said application: "It is understood and agreed that this action of the common council and of the street railway company is not in any way to prejudice or affect injuriously the franchise or any of the rights of said street railway company except as to the running of its cars from Church street down to the Mohawk bridge." "The common council then adopted a resolution authorizing the railway company to dispense permanently with the operation of the road between Church street and Mohawk bridge on condition that the track on said portion of said streets be promptly removed, that the pavement on said portion of Washington avenue be restored, and that the said receiver reimburse the contractor now repaving the said portion of State street for any extra expense for labor and material incurred by said contractor by reason of the removal of said track." In all other respects the license of the Schenectady Street Railway Company to be and remain unchanged and in full force. This resolution was approved by the mayor the same day. The track of said road on Washington avenue and Church street was then taken up, and the pavements restored. This, it is alleged, was done by George W. Jones, as such receiver, and there has been no railroad or track there since, except as hereafter stated. The amended bill of complaint then alleges, in substance, the decree of sale in said foreclosure action, the sale of the mortgaged property to Kobbe, White, and Batchelor, the deeds given by the special master and by the receiver and the Schenectady Street Railway Company, containing the same. descriptions contained in the mortgage. The receiver made a report, and from same and accompanying papers it appears that he turned