Mutual Benefit Life Insurance v. Hillyard

The opinion of the court wras delivered by Bedle, J. This suit was brought upon a policy of life insurance, issued by The Mutual Benefit Life Insurance Company, a corporation of this state, on December 27th, 1849, for $5000, upon the life of John H. Hillyard, then and continuously afterwards, up to his death, a citizen and inhabitant of the state of Virginia. He died June 1st, 1862. The annual premium was $302.50, -which amount was regularly paid each year, up to and including December 27th, 1860. The premium of December 27th, 1861, was not paid, by reason of the insurrection and condition of hostilities then existing in that part of the state of Virginia, where Hillyard and those for whose benefit the insurance was effected, resided : — 461 — but as soon as sucli hostilities were terminated, that premium, with lawful interest, was tendered to the company, and by it refused. By the policy, the company, in consideration of §302.50, paid at the date thereof, and of the annual premium of §302.50, payable on December 27th of every year during the life of Ilillyard, agreed to pay $5000, the sum insured, within ninety days after notice and proof of death, subject to certain conditions, and among them, in substance that, in default of the payment of any of the annual premiums on the days mentioned, the company should not be liable to pay the sum insured, or any part thereof; and that the policy should cease and determine, and all previous payments and profits thereupon be forfeited to the company. The main question involved is, as to the effect of the recent civil war upon the policy — whether the payment of the premium was suspended merely, or the policy avoided. Ko argument can be drawn from the hardship of either view. It is undoubtedly important that life insurance companies should promptly receive their premiums, and clauses to secure that result will be strictly enforced, as in the case of Catoir v. American Life Insurance Co., 4 Vroom 487; but, at the same time, when such an unexpected event as a civil war between the states occurs, it is equally important to know whether the insured, if unable to pay the premium by reason of that, shall lose all benefit from the insurance, and forfeit to the company the whole amount paid, which may, as in this case, including principal and interest, nearly equal the sum insured. It is an injury to the company not to receive prompt payment, but it would be a greater injury to the insured to lose all benefit from the insurance. War always creates hardships, .and private rights must necessarily suffer from the hostile condition; but the evident object and tendency of judicial action is, where the government has not created forfeitures, and where the question is one of the mere effect of the war ipso facto upon private contracts and interests, to interfere with them only so far as may be rendered necessary by the -existence of hostilities, and when, to preserve them, wmild be — 462 — inconsistent therewith. It would be impossible to-so declare-the law as that no injury would result, but it should be the purpose of the court, as far as consistent with principle, to sustain the interests of both parties, the one as well as the-other, in the policy, doing as little injury as possible to either. The difficulty in this case arises from the non-payment of the premium of December 27th, 1861. In an ordinary case, the policy would be forfeited, according to its terms ; but if unlawful to pay the premium when due, by reason of the war then existing, the question to be settled is, how such state of war, or the non-payment for that cause, affects the contract. It cannot be disputed that the existence of the war, taken in connection with the proclamation of the President of August 16th, 1861, and the act of Congress of July 13th, 1861, which authorizéd the proclamation, suspended all amicable intercourse, and made it unlawful then to transmit the money for the premium from the insurrectionary state to this. That doctrine arises out of the fact of all wars,, whether foreign or civil; but, in addition to that, the clear effect of the proclamation, with the force and authority of section 5 of the act of congress, was to make it incontestable that, during the-insurrection, intercourse- necessary to transmit money, was suspended. The transmission of money, among other consequences, involves intercourse inconsistent with a condition of' hostilities, and therefore it was unlawful to remit it, and by the evident force of the act of congress alone, after the proclamation, it was unlawful to receive it as the result of any intercommunication between those of the belligerent states. How then was the contract of insurance affected by the nonpayment of the premium for that cause,, or by the war ? The only ground upon which it can be claimed that the war ipsofacto, dissolved the contract is this:. That to make the annual payments, involved, an act. contrary to the laws of warfare, and that act in this-case consisting, chiefly in. the intercourse-necessary to accomplish.it, which would be unlawful. It is-granted that to transmit the money, would be unlawful, but the result sought does-not follow from that, alone.. War does463 not defeat a debt, yet the right to collect it during the continuance of the strife, is suspended, and the creditor looses his-interest. Let us analyze the case of a debt due, as for instance,, for goods sold before the Avar, but payable at a time after its commencement, and to make the illustration as forcible as-possible, payable at different times by instalments during the war. The actual contract is, the debtor having received the-goods, that he shall pay for them at the times appointed. In the absence of hostilities, it is the right of the creditor to receive and the duty of the debtor to pay, but Avar having occurred, the debtor cannot discharge that duty without an, infraction of law. Any attempt to do it would be an act clearly inconsistent with the state of Avar, but the debtor is-not discharged for that reason. The debt should be paid by the contract; the contract itself requires it, yet the payment may be suspended and the debt subsist, and it is so with any executed contract not obnoxious to the policy of warfare. Rights vested under it will be saved, but any immediate benefit is suspended. If the contract could be carried out by any hocus pocus action in making the payment of the several instalments, it would still be unlawful to do it, for the law does not require or tolerate any such irregularity, and therefore suspends the payment, leaving the claim disturbed as little as possible, and although the creditor must submit to the loss, yet he is allowed as much benefit from his contract as is consistent with the state of war. It will thus be seen that it does not necessarily follow that when the contract itself requires payment, the contract will be entirely dissolved. The law strips the contract of its objectionable features, and leaves the rest intact. There is a class of contracts, however, upon which, the Avar Avorks a complete dissolution, and among them are those termed continuing. They are of an executory nature merely, and Avhere the contract in its essential features, if it subsists, must violate the law governing hostilities. The chief instance is a partnership. It is undoubted that no contract can be made during belligerency, and although a contract of partnership is made before the war, yet it contemplates — 464 — the continuous performance of acts amounting to distinct contracts. The life of a partnership is in the continuance and performance of the transactions it contemplates. "Without that the relation would be barren. It is of the nature of a partnership that there should be intercommunication of the partners; each also, is interested in the business and is affected by the acts of the other, and as stated by Chancellor Kent, in the great case of Griswold v. Waddington., 16 Johns. 494, “ when one of the parties becomes disabled to act, or when the business of the association becomes impracticable, the law as well as common reason, adjudges the partnership to be dissolved.” Hence the agreement of partnership is not suspended, but dissolved. Although a contract of partnership is dissolved, yet, as to all transactions executed before the war, there is no rule of law requiring a forfeiture of the profits to the partner who happens to possess them. The remedy to collect them during the war would be suspended, yet the right to them remains. But this contract of insurance is not of the exact nature of a debt, nor is it of the character of a partnership. It is peculiar. If the premiums had all been paid previous to the war there would have been only a debt, payable at death, an event certain to happen, and if Hillyard had died before the premium of December 27th, 1861, had accrued, there is no reason in the policy of the law, or in plain justice, why, after the war, the sum insured could not have been collected. A mere contract of life insurance, subsisting at -the breaking out of the war, without requiring the performance of an act inconsistent therewith, and especially with a clause, as in this, against entering into the military or naval service, is not in itself antagonistic to the laws governing a state of war, and, as already said, if it is to be condemned it must be upon the ground that it contains provisions for the payment of premiums which, if strictly carried out, would be antagonistic. How, then, should the law deal with this contract containing such provisions; shall the payments be suspended or the policy avoided? For the present I disregard the question — 465 — of condition precedent, for that is confined to the mere interest of the parties, while this depends chiefly upon considerations of public policy. It is sufficient now to say, that on the payment of the first premium a right became vested in the continuance of the contract of insurance, but on condition that the premiums be promptly paid. The contract was executed to the extent that the premiums were paid, and the right thereby acquired was private property. It is the policy of all enlightened governments not to confiscate debts and credits, although the power to do it exists. 1 Kent *65; Brown v. United States, 8 Cranch 110; Hanger v. Abbott, 6 Wall. 532. Chief Justice Marshall, in Brown v. United States, assumed it to bo the universal practice not to exercise the right. This contract is of the general character of debts and credits, and the policy of the government would be to leave the interest acquired under it undisturbed by any act of confiscation. There is also a policy in the law, which is careful of private rights, and it is not confined to times of peace. When the dread necessities of war break up all friendly intercourse, disturbing and destroying trade, commerce, property and life itself, it is still the policy of the law to save from wreck and loss all private property and rights possible to be saved, consistent with the stern demands of the hostile state. The reason why contracts or transactions between belligerents arc! interdicted is, that they are in violation of the doctrino that all commerce, friendly intercourse, and trading with the enemy, are contrary to the nature of a state of war, but the destructive power’ of the interdiction should not be carried farther than necessary to enforce the doctrine. There is no reason why ante bdlmn contracts, not entirely executory, should not be preserved from dissolution, to the extent that they are not inconsistent with the duties and requirements of a condition of hostilities. The test to dissolve a pre-existing contract is its essential antagonism to the state of war. It is so in partnerships ; it is also so in contracts of affreightment. But if rights have been acquired under a contract, not substantially antagonistic, the law will either abridge or qualify it, or sus — 466 — pend its performance, in whole or in part, according to the nature of the contract. These are analogies to that effect. It is unlawful to insure enemies’ property, yet a policy of that kind issued previous to a war may be' qualified so as to save it from entire destruction. The case of Furtado v. Rogers, 3 B.& P. 191, (1792,) was an insurance effected in Great Britain, on a French ship, previous to the commencement of hostilities between Great Britain and France. The policy was in the usual form, including an insurance against captures. The ship was captured by British force. The court held “that when a British subject insures against captures, the law infers that the contract contains an exception of captures made by the government of his own country, and that if he had expressly insured against British capture, such a contract would be abrogated by the law of England.” The court also said that the plaintiff was “not entitled to a return of the premium, because the contract was legal at the time the risk commenced, and was a good insurance against all other losses but that arising from capture by the forces of Great Britain.” In that case the court did not consider the contract dissolved, but that it was subject to a qualification that it should not apply to British captures. To the same substantial effect are the cases of Kellner v. Le Mesurier, 4 East. 396; Gamba v. Le Mesurier, 4 East. 407. In Brandon v. Curling, 4 East. 410, a kindred case, Lord Ellenborough, Chief Justice, after referring to the two Le Mesurier cases, says: “ It follows, as a consequence of the same ’principle, that wherever the generality of the terms of assurance might, in their actual application to the covering of any particular risk, produce, if effect were given to them in their - extended sense, a similar contravention of public interest, the insurance must be construed in such a manner as to exclude the particular event or peril, which could not be so made the subject of a legal insurance in direct terms by a British underwriter.” He gives two instances of implied exceptions, that may arise in the application of general words of insurance; one of which is, that where an insurance is upon goods generally, a proviso shall be considered engrafted, as follows: — 467 — “Provided, that this insurance shall not extend to cover any loss happening during the existence of hostilities between die respective countries of the assured and assurer;” and the other is, that “the risk of detention of princes, &c., must be understood to be restrained and qualified by an implied proviso, “ that it shall not extend to cover any loss happening in the course of any contraband adventure, in which the goods would become liable to seizure as forfeited by the latos of this country.” These cases are referred to merely to show how contracts may be restrained or qualified, when, to carry them out according to the full scope of their terms, would be unlawful. An instance of suspension of agreement exists in the case of a debt already alluded to. Another is in the suspension of a clause in a policy of insurance fixing a time within which suit must be brought. Semmes v. Hartford Insurance Co., 13 Wall. 158. In that case the Supreme Court say : “We have no doubt that the disability to sue, imposed on the plaintiff by the toar, relieves him from the consequences of failing to bring suit within twelve months after the loss, because it rendered a compliance with that condition impossible, and removed the presumption which that contract says shall be conclusive against the validity of the plaintiff’s claim.” See, also, Hanger v. Abbott; also, U. S. v. Wiley, 11 Wall. 508; The Protector, 9 Wall. 687. In Parsons on Contracts, Vol. 2, p. 187, the author states that “ a law may have the effect of suspending an agreement that was originally valid, and which it makes impossible without violation of law, and yet leave the contract so far subsisting that upon a repeal of the law, the force and obligation of the contract remains.” See, also, Baylies v. Fettyplaee, 7 Mass. 325; Hadley v. Clark, 8 T. R. 259. In a Mississippi case, Statham v. New York Life Insurance Co., 45 Miss. 581, found also, in 3 Bigelow, Ins. Rep. 650, a part of the opinion of Simrall, J., contains so much good sense on this subject that I will quote it: “ As a general proposition, war suspends the performance of ante helium contracts and denounces as illegal and invalid those made pendente hello. If an ante helium contract is dissolved at all, it — 468 — is because its performance is inconsistent with the duties and allegiance which the parties owe to their respective countries, and involves some violations or infringement, of these, and which has not been performed in whole or in part by either party. The annihilation of such a contract would not be injurious to either party, but would rather dissolve their inconvenient relations. But if the contract has been partly executed by one party by parting with money or other valuable things on the consideration and promise that the other will perform his part of the engagement, it would be gross injustice and repugnant to reason that intervening war should destroy the contract, devolving all the loss upon one party to the gain of the other. Nor should that be so unless an overruling policy should so require, &c. If the contract may be preserved or performed without the transmission of money or property from one enemy to the other, or without their intercourse or correspondence, then no principle of law or policy, arising out of a state of war between their respective countries, would demand an abrogation of the contract or its non-performance.” In that case it was held that the contract could be performed by payment of the premium to an agent of the New York Company, residing in Mississippi, where the insured lived. In Buchanan v. Curry, 19 Johns. 136, the defendant was an alien enemy of.the United States, residing in Canada; one of the plaintiffs was a naturalized American citizen residing in New York state, and the other was also a British subject in Canada. The contract vTas for the delivery of timber, but made before the declaration of war in 1812. Some of the timber was delivered before the war. The places of delivery were so general that the plaintiffs could elect to deliver the timber in Canada or within the United States. It was held that the contract was not dissolved by the war and that the plaintiffs could deliver the timber to an agent who resided in the United States, in performance of the contract. The tendency of adjudication is to preserve and not to destroy pre-existing contracts. Where performance can be — 469 — liad, without contravening the laws of war, the existence of the contract is not imperiled, and even if performance is impossible the contract may still, when partly executed, be preserved by engrafting necessary qualifications upon it, or suspending its impossible provisions, if made so by the act of the law. If the contract in question can be saved while the war lasts, it should be; and it is clear to my mind that the law will allow a suspension of the payment of the premium, and permit the payment to be made on the return of peace, with proper interest, unless there is something in the terms of the contract to prevent it. There is no more hardship in that than in suspending the payment of a debt. There is more in the latter, for the creditor looses his interest; but the insurance company will receive it, as is right. The company should receive it, because its ability is sustained by its premiums, and the interest accumulations. The nature of the contract is such that, when enforced, the equivalent for the sum insured should be made up. There is no question raised, in this case, as to the amount of interest tendered. The declaration states that legal interest was tendered. If compound interest could be required, as perhaps it ought to be, the company would be reimbursed for the delay. Blit it is said that the payment of premiums is a condition precedent, and, if not made with exactness, that there can be no excuse for it unless specially provided in the policy. It is difficult to define the precise nature of the condition for the annual payments. The contract is mi generis. Vlt may be admitted that the payment of the premium is a condition precedent to any recovery, the same as the performance of an entire contract may be, but the payment after the first is not a condition precedent to the vesting of substantial rights, under the contract, although liable to be defeated by force of the clause of forfeiture. The payment of the first premium covers the whole lifetime, and makes a complete vested right to the sum insured, if death takes place before another premium is payable, but if not it is subject to the payment of further premiums, v This is not in the nature of a condition — 470 — precedent to the vesting of a title to real estate. In such a ■case, if the condition becomes impossible to be performed, nothing vests, because the instrument creates no right at. all without the complete performance of the condition. ' A "'■condition, as affecting real estate, where its nature is most distinctly seen-, if precedent, must be performed before any estate vests; if subsequent, it divests an estate vested. If the •condition precedent is void or impossible to be performed, nothing vests. Tf the condition subsequent is void or impossible, the estate, having vested, remains undisturbed. The condition in question cannot, in any technical sense, be regarded as precedent or subsequent, so as to vest or divest rights under the policy. It is a condition in the contract, and a part of it, and peculiar, and arising out of the very nature of life insurance contracts. The policy is necessarily of the character of mutual agreements, partly executed on one side, and although the performance of some on the part of the insured may be precedent to the final performance by the company, yet we should subject it to the same restraints and influences of the law as any other contract. When the first premium is paid a full contract of insurance is completed, subject to conditions peculiar to that class of contracts. The use of the words condition precedent, Baron Martin, in a certain case, (Bradford v. Williams, L. R., 7 Exch. 261,) said he thought unfortunate; that “the real question, apart from all technical expression, is, what in each case is the substance of the contract.” So far as the precedent payment of the premium in arrear is concerned it would, of course, have to be made before recovery. Time, also, is of the essence of the contract, and no fault or neglect of the party could excuse a non-payment; but why should not this, like any other contract, be subject to such qualifications and conditions as the law may impose ? I am unable to discover any reason. This should have no immunity from the fate of every other contract, when, by an unexpected event, it becomes unlawful literally to carry it out. This subject, as we are now considering it, is free from any question of public — 471 — policy, and cases excusing performance according to contract, by reason of a subsequent unlawfulness, are in point. In Baylies et al. v. Fettyplace et al., 7 Mass. 325, the plaintiffs sold, in 1807, sugar to defendants at Boston, for which defendants promised to pay two several sums at different times, and to deliver within a reasonable time what were called certificates of debenture of the United States. These were to be issued by the government officers, and could not be obtained unless the sugars were exported. Within the reasonable time necessary for exportation, an embargo was laid by the United States. The court held that the embargo operated as a temporary suspension of the performance of the contract. Sewell, J., said that “ the mere suspension of the exercise of this right operated equally upon the plaintiffs and defendants ; was created by laws to which both were parties, and formed a part of that system of regulation to which they had referred themselves in the implied intentions, if not in the express letter of their contract.” Sedgwick, J., said : “ The defendants were, of course, prevented inevitably, and without any fault ■on their part, from performing their promise. Now it is clearly settled, by innumerable authorities that, whenever a contract which was possible and legal at the time it was made, becomes impossible by the act of God, or illegal by an ordinance of the state, the obligation to perform it is discharged, or If such ordinance be temporary, the obligation is suspended during its continuance. (See references in note to that case.) In Hadley v. Clarke, 8 T. R. 259, in Court of King’s Bench, where defendants contracted to carry the plaintiffs’ goods from Liverpool to Leghorn. On the vessel arriving at Falmouth, in the course of her voyage, an embargo was laid on her until the further order of council — held, that such embargo only suspended, but did not dissolve the contract,” and that where the embargo lasted two years. In Jones v. Judd, 4 Coms. 412, the plaintiffs made a sub-contract to do work upon a canal in New York. Afterwards, the legislature passed an act which put an end to the original contract and the sub-agreement. The defendant had paid plaintiffs for all — 472 — the work done, except ten per cent., which was not to be paid until the final estimate — held, that as the plaintiffs were ¡prevented by authority of the state from completing their contract, they were entitled to recover. The act of the legislature excused the performance of the condition precedent of entire performance. The following are cases and references in the same direction as those cited: Anglesca v. Rugeley, 6 Ad. & El. (N. S.) 107; Esposito v. Bowden, 7 E. & B. 763; Chitty on Contracts 804 (10 Am. ed.;) 2 Parsons on Contracts (1st ed.) 187. Warranties in contracts of marine insurance are always regarded as most imperative in their performance, yet Arnold, in ~Vol. 1, p. 585, of his valuable book on Eisurance, says; “ It may be stated generally, that compliance with a warranty will be dispensed with, if it be rendered unlawful by a law enacted since the time of making the policy.” The foundation of this doctrine is in the maxim that “ the law does not seek to compel a man to do that which he cannot possibly perform ;” and, as an illustration of it, the familiar instance is given in the books that, “ if H covenants to do a thing which is lawful, and an act of Parliament comes in and hinders him from doing it, the covenant is repealed.” Broom’s Max. 168. Although the instance is of a repeal of a covenant by the effect of an act of parliament, which is permanent, yet the principle is fairly deducible from it, that if the act interdicted is only temporarily unlawful, it suspends the operation of the covenant. Cohen v. N. M. Life Ins. Co.. 50 N. Y. 610. It must be considered in analogy to the marine insurance' cases that there is engrafted by necessary force of the law upon the policy, a proviso or exception, saving it from forfeiture or extinction by suspending the payment of the premium, when by an unexpected condition of affairs it has become temporarily unlawful to make it. The contingency of a civil war could not by any possibility have been anticipated at the making of ihe policy, and it would be grossly unjust to allow a forfeiture, when by suspending the payment, — 473 — the contract could afterwards be substantially performed. The law, in my judgment, will save the policy from so disastrous a result. The basis of all the argument against this view, so far as adjudication is concerned, is the case of Paradine v. Jana, Aleyn 26. The comments of the Chief Justice upon it are forcible. It was a case of hardship only, not of impossibility of performance. The exact language of the report cannot fairly be construed against the principle now insisted oil. It is as follows : “ And this difference was taken, that where the law creates a duty or charge and the party is disabled to perform it without any default in him and hath no remedy over, there the law will excuse him. As in the case of waste, if a house be destroyed by tempest or by enemies, the lessee is excused. So of an escape. So in 9 E. 3, 16, a supersedeas was awarded to the justices, that they should not proceed in a cessavit upon a cesser during the war, but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore if the lessee covenant to repair a house, though it bo burnt by lightning or thrown down by enemies, yet he ought to repair it.” The point of the second proposition is, «if he may.” He must, if possible, however hard. The impossibilities recognized by the law are impossibility by act or force of law and impossibility by the act of God. It is unnecessary in this case to deal with the latter excuse, as there is more difficulty about it, but as to the former, it is said in Chitty on Contrasts 804, “ that the non-performance of a contract will always be excused where it is occasioned by act of law or by an act done by public authority.” The doctrine already considered, would apply to a case where the disability was only on the part of the party to perform, but in the case before us, the company could not receive the payment without a violation of the law on their part. To do so would necessitate an act of intercourse. Hence both parties were under a legal disability — -one to pay, the other to receive, — 474 — This is the effect of the act of congress and of the state of war. The right of those interested in the policy to pay and save the insurance was just as strong as the right of the company to receive. Neither could enjoy the right. By what principle then can the company exact a strict compliance with the clause to pay at a definite time ? The hands of each were tied, and the company could not complain of the others default. According to all analogy and principles, the performance must be suspended under such circumstances. To dissolve, when the contract is part executed, would not place the parties in a just position; but to suspend will best reach the intention and spirit of the contract. The suggestion that this being a mutual company the contract is therefore like a partnership and dissolved, is disposed of by what Allen, J., said in substance in Cohen v. N. Y. Mutual Life Insurance Co., 50 N. Y. 624, that the company is a body corporate, capable of contracting as such, and the relation is between insurer, a corporation, and insured; that the members are not partners between themselves. The contract is the contract of the corporation, and whatever incidental advantages appertain to a member, that that does not affect the contract in the policy. Besides, if a partnership, it would result in an accounting as of the time of dissolution, which would be at the commencement of the war, and the defendant would hardly desire that result. ' The further suggestion by defendant’s counsel that the fault of non-payment must be imputed to the plaintiffs, because the rebellion was their fault, cannot be regarded. The law deals with the condition of things when actual hostilities exists, and considers all the citizens of the belligerent districts' as enemies mutually. The causes of the contest are swallowed up in the strife, and the legal results of it, between individuals, are not affected by the causes which induced it. If this insurance company had been located south and the plaintiffs north, the law would affect them the same as it does now with their present status. — 475 — The questions involved in this canse have greatly agitated the courts of this country, and resulted in adverse decisions. I have not reviewed them, but will content myself with merely u reference to them, both in favor of the result reached, and those adverse. In favor: N. Y. Life Ins. Co. v. Clopton, 7 Bush 179; Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 611; Robinson v. Internat Life Assurance Co., 42 N. Y. 54; Statham v. N. Y. Life Ins. Co., 45 Miss. 581; Hamilton v. Mutual Life Ins. Co., 9 Blachf. 234; Cohen v. N. Y. Mutual Life. Ins. Co., 50 N. Y. 610; Sands v. N. Y. Life Ins. Co., 50 N. Y. 626. Adverse: Dillard v. Manhattan Life Ins. Co., 41 Ga. 119; O’Reiley v. Mutual Life Ins. Co., 2 Abb. Pr., N. S. 167 ; also Tait v. N. Y. Life Ins. Co., in U. S. Circuit, Western Tennessee (1873.) In addition to these cases, the recent action of the Supreme Court of the United States, in affirming, by-a divided court, two adverse judgments, exhausts all the adjudication I can find upon the distinct subject. The objection that the suit is not brought in the name of the proper party, is correctly disposed of by the Chief Justice, and nothing further need be said upon it. The judgment of the Supreme Court must be affirmed.