was served with process in this case. The evidence substantiated the allegations of the plea. Krum & Jonas, for plaintiff. Collins & Jamison, for defendant. TREAT, J., (orally.) The question presented by demurrer to the evidence on the plea of abatement, and the reply thereto, in this case, is one on which, after a great difference of opinion, the various circuit courts of the United States have reached a common conclusion,— one in the first circuit, and one in the adjoining circuit, the seventh. Extended commentaries thereon will be found in 21 Amer. Law. Reg. 672. See Atchison v. Morris, 11 FED. REP. 582. The proposition is this: When a party to a suit, a non-resident, appears in a state, in order to represent himself with respect to his interests therein involved, or when one as a witness is brought into a state for that purpose, whether, thus coming within such jurisdiction, he is subject to civil service for the institution of suits against him. I am cited to a recent case in Connecticut, followed by a commentary in another case by Judge SHIPMAN, a United States district judge. An examination of those cases will show that neither the supreme court of Connecticut nor the United States district judge. went to the length contended for in this case. All the United States circuit judges who have passed upon the question of late, as well as dicta by the supreme court of the United States in respect thereto, reach this result, viz.: that where a party in good faith is brought within the jurisdiction of the state or detained therein, being a nonresident, either as party to the suit or as witness in another suit, he is not subject to service. And the reason-the main reason—is very potential, so far as our country is concerned. There are many states, stretching from Maine to Oregon, and a man who is required to go from one to the other, either as a witness or as a party to a suit, should not be pursued by suit while abroad, instead of being sued at his own residence; otherwise, every one, as is stated in many of these opinions, would avoid, as far as possible, being subjected, thousands of miles away, to suits of this character. The result is, the demurrer to the evidence is overruled. Judgment on the plea of abatement in favor of defendant, which abates the case. KEHLER V. NEW ORLEANS INS. Co.1 (Circuit Court E. D. Missouri. April 11, 1885.) 1. FIRE INSURANCE-NOTICE TO BROKER. Where a policy of insurance procured through a broker contained the following conditions, viz.: "If any broker or other person than the assured have procured the policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance. This insurance may be terminated at any time by request of the assured, or by the company, on giving notice to that effect;" held, that notice from the company to the broker who procured the policy, of an election to terminate the insurance, was not notice to the assured. 2. PRACTICE-MOTION TO SET ASIDE VERDICT-NEW DEFENSE. A verdict and judgment thereon will not be set aside upon the ground that the defendant has been prevented, by a mistake, and without fault, from being represented at the trial and making his defense, when the defense which he sets up in affidavits in support of his motion to set aside is entirely new, and not disclosed by the original pleadings. Motion to Set Aside the Verdict and Judgment. Suit upon a fire insurance policy taken out by the assured through a broker. The policy contained among its conditions the following: "If any broker or other person than the assured have procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance. This insurance may be terminated at any time by request of the assured, or by the company, on giving notice to that effect." The answer contains a general denial, and states that the defendant had terminated the insurance by notice to the plaintiff according to the terms of the policy, before any loss occurred. At the trial it appeared that the defendant had atttempted to terminate the insurance. before the fire, by giving notice to the broker who procured the policy, but that the plaintiff had received no actual notice of the defendant's desire to terminate the insurance until after the fire occurred. The defendant was not represented at the trial. The verdict was for the plaintiff. The defendant moved to set aside the verdict, and filed affidavits tending to show that the attorney's absence had been caused by a mistake, and that it had a defense not set up in its an swer. G. M. Stewart, for plaintiff. Eleneious Smith and E. H. Gary, for defendant. TREAT, J., (orally.) In the case of Kehler v. New Orleans Ins. Co. there is a motion to set aside verdict and judgment. The original defense to the case was that, under the terms of the policy, it could be canceled on notice given, and that said notice was given before the loss. On the testimony submitted, it appeared the notice was not given. I supposed the contention would be that the broker who negotiated the insurance must be treated as if he were the plaintiff Reported by Benj. F. Rex, Esq., of the St. Louis bar. That ques himself, or his agent for receiving notice. He is not so. tion was before the supreme court and decided in the case of Grace v. Insurance Co. 109 U. S. 278; S. C. 3 Sup. Ct. Rep. 207. tions terminated when he effected the policy. His func Now, this motion goes a step further. It sets up in the affidavit an entirely new defense, which, it seems, was not thought of before, to-wit, that the policy executed and delivered to the plaintiff was only on condition that the parent company should assent thereto, which it never did. That is something that was not in the original pleadings. The party had abundant opportunity to do that originally. Now he wishes to set up a new defense, and reopen the case upon a theory which is utterly inconsistent with his own correspondence on file. The motion will be overruled. MITCHELL V. CATCHINGS.1 (Circuit Court, E. D. Missouri. April 18, 1885.) PROMISSORY NOTES-OPTIONS-NOTICE-REASONABLE TIME. Where a demand note, given as security for a continuing option transaction, but valid on its face, was bought in the regular course of business and for full value, 23 days after date, by one who knew the payees of the note dealt in options, and suspected, but did not know, that it had been taken in some option deal, held, (1) that the note had been negotiated within a reasonable time; (2) that the purchaser was a bona fide holder without notice. At Law. Suit on a promissory note. Hugo Muench, for plaintiff. Phillips & Stewart, for defendant. BREWER, J., (orally.) In Mitchell v. Catchings, action on a note for $5,000, there is really only one question, and that is whether the plaintiff was a bona fide holder, before due, of the note in controversy. In its inception the note was a note given as security for option deals, a pure gambling transaction,-a note void as between the parties beyond any question. The plaintiff claims to be a bona fide holder before due. The note is a demand note, dated November 13th, indorsed to plaintiff, December 6th. No demand was in fact made prior to transfer. While it is true a letter was written by McCormick, of the firm of Smith, McCormick & Co., the payees of the note, yet there was no presentment of the paper to the maker, no demand, within the rules of the law-merchant. Twenty-three days elapsed between the making of the paper and the transfer. Is that such length of time that the court is justified in presuming a demand, and 1 Reported by Benj. F. Rex, Esq., of the St. Louis bar. holding that the paper was taken overdue? The books show it is a mixed question of law and fact as to what is reasonable time within which demand must be made. In Daniel, Neg. Ins., quoting, I think, from Pars. Notes & Bills, the author makes use of an expression something like this: "That it is unquestionable that one day would not be a reasonable time, and that five years would be an unreasonable delay. Intermediate these times there is nothing settled, and each case must be left to be determined upon its own peculiar circumstances." This note was given as security for a continuing transaction. In the contemplation of the parties it was not to be immediately paid. So the defendant says, and claims really a breach of contract on the part of the payees, in that they closed out his deals more speedily than they were warranted. Hence, as between the parties, it being contemplated that it was to stand as security for a continuing transaction, and not as paper which was to be immediately collected and paid, it does not seem to me that the 23 days can be held to be an unreasonable time. Counsel said in the argument (I do not know whether correctly or not, for I have not had time to examine) that no case can be found in the books in which any period less than 30 days has been held to be an unreasonable time. Applying the law as thus laid down in the books, I cannot hold that the note was transferred after due. The purchaser suspected that the note was given for one of these gambling contracts. He knew the parties from whom he purchased, and that they were engaged in that kind of business; and so he says he was not blind, but suspected the nature of the transaction. Still, he knew nothing about it. He bought it in the regular course of business at his bank, and paid his money for it. I have a strong feeling in reference to these transactions, (purely gambling transactions,that is the long and short of it,) and it is a sore temptation to ignore the law laid down by the supreme court, and say that the man who buys under such circumstance does not buy as a bona fide purchaser. But the supreme court have held in several cases-and of course that must here be taken as settled law-that mere suspicions or negligence do not invalidate the purchase, or make the purchaser not a bona fide purchaser. "There must be [and that is the language of the court] mala fides;" and it could hardly be said there was mala fides in this case. The note on the face was all right; the plaintiff bought it in the regular course of business and paid his money for it, paying full value; and while, from the knowledge that he possessed of the business in which the payees were engaged, he must have suspected and did suspect the origin of the note, yet he did not know it. I am therefore reluctantly compelled to say that I cannot hold he was guilty of mala fides in purchasing the paper; and that, being a bona fide purchaser, he is entitled to recover. BARRY . UNITED STATES MUTUAL ACCIDENT ASS'N. (Circuit Court, E. D. Wisconsin. March, 1885.) 1. ACCIDENT INSURANCE-ALleged Injury-QUESTION FOR Jury. In an action on an accident insurance policy the question whether deceased was injured by jumping from a platform as alleged, is a question of fact for the jury to determine from all the circumstances of the case as shown by the evidence. 2. SAME "ACCIDENTAL" DEFINED. The term "accidental" as used in an accident policy is used in its ordinary 4. SAME" EXTERNAL AND VISIBLE SIGNS OF INJURY"-INTERNAL INJURY. 5. SAME-SOLE AND PROXIMATE CAUSE OF DEATH." In an action on an accident policy where it is shown that the deceased sustained an accidental injury to an internal organ, and that necessarily produced imflammation, and that produced a disordered condition of the injured part, whereby other organs of the body could not perform their natural and usual functions, and in consequence the injured person died, the original injury will be considered as the proximate and sole cause of death; but if an independent disease or disorder, not necessarily produced by the injury, supervened upon the injury, or if the alleged injury merely brought into activity a then existing but dormant disorder or disease, and death resulted wholly or in part from such disease, the injury cannot be considered the sole and proximate cause of death. At Law. C. M. Bice, for plaintiff. Finches, Lynde & Miller, for defendant. DYER, J., (charging jury.) On the twenty-third day of June, 1882, the defendant association issued to John S. Barry, then residing at Vulcan, Michigan, but since deceased, what may be termed a contract of insurance, by which it agreed to pay his wife, Theresa A. Barry, a sum not exceeding $5,000, within 60 days after sufficient proof that, at any time within the continuance of membership of Dr. Barry in the association, he had sustained bodily injuries, effected through external, violent, and accidental means, and that such bodily injuries alone had occasioned death within 90 days from the happening thereof. This is a suit brought by the beneficiary named in the policy to recover the amount of the insurance. It is alleged that the deceased sustained an injury, within the meaning of the policy, on the twentieth day of June, 1883, and it is proven that he died on the twenty-ninth day of that month. There is no question, therefore, that if he was injured as claimed, he died within the time after the alleged injury named in the policy; nor is there any question that the policy was in force at the time of his death. By the terms of the policy it was provided, as already stated, that to entitle the beneficiary to the sum of $5,000, the death should be oc 1 |