brated by authority of the "church" of which he is the acknowledge head, is illegal, null and void? Let us enquire whether a marriage solemnized by such authority is necessarily void.

An Ordinance first enacted by the so-called State of Deseret, and afterwards re-enacted by the Territorial Legislative Assembly, entitled, "An Ordinance Incorporating the Church of Jesus Christ of Latter-Day Saints," provides: "Sec. 3.-And be it further ordained that as said Church holds the constitutional and original right, in common with all civil and religious communities, to worship God according to the dictates of conscience; to reverence communion agreeably to the principles of truth, and to solemnize marriage compatible with the revelations of Jesus Christ, for the security and full emjoyment of all blessings and privileges embodied in the religion of Jesus Christ free to all, it is also declared that said church does and shall possess and enjoy continually the power and authority, in and of itself, to originate, make, pass and establish rules, regulations, ordinances, laws, customs and criteions for the good order, safety, government, convenience, comfort and control of said church," etc.

and place stated in the complaint, evidence is necessary to determine the following questions:

1. Was the plaintiff, on April 6th, 1868, the wife of James L.

Dee?

2. Was the defendant, at Kirtland, in the State of Ohio, on the 10th day of January, 1834, lawiully married to Mary Ann Angell, and was the said Mary Ann his wife on April 6th, 1868.

If these questions shall be determined against the defendant, it will then become an important question whether the defendant has treated the plaintiff unkindly, cruelly, inhumanly, or has deserted or failed to support her; which, in his answer, the defendant denies. If, however, the first two questions, or either of them, shall be determined against the plaintiff; or, in other words, if it shall appear that the parties have knowingly entered into a polygamous or bigamous marriage, this court will not grant the divorce prayed for. But the court is not permitted to presume what the evidence will be. The witnesses necessary to maintain or to defeat this action are liable to be widely scattered in Utah, in Ohio, or elsewhere; and the litigation is liable to be protracted and ex

It may be laid down as a sound legal proposition, that a mar-pensive. Can the court lawfully require the defendant to pay an riage solemnized in Utah, either according to the forms of the allowance for ad interim alimony and for the expenses of prose"Church" of which Brigham Young is the head, or according to cuting the action? the forms of the common law, is a lawful and valid marriage, provided the parties to the contract are, at the time of entering into it, legally competent to intermarry.

But the defendant seeks to avoid the binding force of his admitted marriage to the plaintiff on the 6th day of April, 1868, by alleging, in effect, that neither of them was at that time competent to intermarry with any person. Not only does he allege that the plaintiff was then the wife of James L. Dee, but he further answers as follows:

"And the defendant further answering alleges, that at the town of Kirtland, in the state of Ohio, on the tenth day of January, 1834, this defendant, being then an unmarried man, was duly and lawfully married to Mary Ann Angell, by a minister of the gospel, who was then and there, by the laws of said state, authorized to solemnize marriages; and that the said marriage was then and there fully consummated; and that the said Mary Ann Angell, who is still living, then and there became, and ever since has been, and still is, the lawful wife of this defendant."

Thus does the defendant not only charge the plaintiff with, but confesses himself guilty of a felony. His admissions, so far as they prejudice himself only, will be taken as true; but his charges, so far as they tend to injure the plaintiff, must be proved or they will go for naught. The defendant must prove that the plaintiff was ths wife of another man, and that he was himself the husband of another woman on the 6th day of April, 1868, or his allegations to that effect can have no weight as against the plaintiff. There is no replication to an answer under the Practice Act of Utah, and these allegations of the defendant are denied for the plaintiff by operation of law. "Every material allegation of the complaint, when it is verified, not specifically controverted by the answer, shall for the purpose of the action be taken as true. The allegation of new matter in the answer, shall, on the trial, be deemed controverted by the adverse party." Utah Practice Act. sec. 65. "The intention of the Code is to adopt the true and just rule that the defendant must either deny the facts as alleged, or confess and avoid them. When new matter exists it must be stated in the answer. New matter is that which under the rules of evidence, the defend- | ant must affirmately establish. If the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter." Piercy v. Sabin, 10 Cal. 22. The allegations that the plaintiff had another husband, and the defendant another wife at the time of the marriage on the 6th day of April, 1868, are allegations of new matter, and this new matter the law denies for the plaintiff, and requires the defendant to prove.

The Utah statute is silent upon this question, but that silence does not answer it in the negative. "The allowance for ad interim alimony does not depend wholly upon the statute, but upon the practice of the court as it existed before the statute." North v. North, 1 Barb. Ch. R. 241. In Cast v. Cast, ad interim alimony was allowed by the unanimous decision of the Supreme Court of Utah.

"This question seems plain on principle. First, the authority to make the order belongs to the court under the law imported by our forefathers to this country; secondly, if this were not so, still it springs up necessarily out of the legal relation of the parties, and the condition of facts appearing of record before the court to which the application is made. And if any one principle of our jurisprudence is more worthy of commendation than another, it is, that the tribunals may always be pressed to action whenever the case comes within an established legal rule, though not within any precedent." 2 Bishop on Marriage and Divorce, sec 396. Chancellor Kent says:

"I am entirely convinced from my own judicial experience, that such a discretion is properly confided to the courts." 2 Kent Com. 99, note. "The power to decree alimony falls within the general powers of a court of equity, and exists independently of statutory authority." Galland v. Galland, 38 Cal. 265.

Is the case at bar, as it now stands in court, a proper case for the exercise of this authority?

Bishop supposes the case of a woman marrying a man and afterwards finding that he "has already another wife living, and so the marriage is void. She may indeed treat it as void without a judicial sentence; yet suppose that, instead of this, she brings her suit against the man to have it decreed null. Her property is practically in his hands, though in point of law she retains the title. But since she has elected to let the court settle the question of nullity in a direct proceeding for this purpose, she has the same claim upon the court to have appropriated to her so much of this property as her necessities demand while the suit is going on, as though she alleged the marriage to be valid, and sought its dissolution for a cause occurring subsequently to the nuptials. In like manner, where the man seeks to establish the nullity of his marriage on the allegation that the woman has a former husband liv ing, she may have alimony, pending the suit, and money to defend." 2 Bishop. on Mar. and Div. sec. 402. And this is so, even though it is alleged that the marriage was brought about by the fraudulent practices of the supposed wife, and though the costs of the suit may ultimately be awarded against her." Id., note 2. In a case in New York, in which the supposed wife alleged marIt being admitted that the parties hereto intermarried at the time riage and cohabitation, the supposed husband denies the marriage,

but did not deny the cohabitation, and thereupon Vice-Chancellor Under all the circumstances of this case, it seems just that the McCoun made the allowance of temporary alimony, and money | defendant should pay to the plaintiff, to defray the expenses of to carry on the suit. Id. sec. 404. In the case at bar the defend- prosecuting this action, the sum of three thousand dollars; and ant both admits the marriage and fails to deny the cohabitation. that he should pay to her, for her maintenance, and for the "Where upon an application for temporary alimony and an maintenance and education of her children, the further sum of allowance for expenses, the facts undisputed are such as that from five hundred dollars per month, to commence from the day of the them a presumption arises that the parties were married, so that filing of the complaint herein. the affirmative rests upon the defendant to repel that presump- It is ordered accordingly. tion, the court has jurisdiction and power to grant the application, although marriage, in fact, is denied." Brinkley v. Brinkley, 50 Fire Insurance New York, 184.

"The ad interim alimony and money to sustain the expenses are given, not as of strict right in the wife, but of sound discretion THE FRANKLIN FIRE INSURANCE COMPANY, PLAINin the court. Yet the discretion is a judicial, not an arbitrary one. TIFF IN ERROR, v. SAMUEL C. COLT. And when a case is brought within the principles recognized as entitling the wife to the allowance, the allowance follows pretty Supreme Court of the United States, No. 93,—October Term, 1874. much as of course, without enquiry into the merits of the case. If, for example, she is plaintiff, it is no objection that the husband denies her charges under oath." 2 Bishop on Marriage and Di-vides that " every contract, bargain, agreement and policy" for insurance shall be in

conditions of insurance are in a great majority of instances made by agents. It is always so where the insurance is effected out of the state where the company is incorporated and has its principal place of business. The charter of the company in this case authorized the president and directors to appoint officers and agents for conducting its business in other places than the city of Philadelphia. And it would be impracticable to carry on its business in other cities and states, or at least the business would be attended with great embarrassment and inconvenience, if such preliminary arrangements required for their validity and efficacy the formalities essential to the executed contract. The law distinguishes between the preliminary contract to make insurance or issue a policy and the executed contract or policy. And we are not aware that in any case, either by usage or the by-law of any company, or by any judicial decision, it has ever been held essential to the validity of these initial contracts that they should be attested by the officers and seal of the company. Any usage or decision to that effect would break up or greatly impair the business of insurance as transacted by agents of insurance companies.

sion of the policy, or to sue upon the policy to recover for the loss, and in the latter case to prove its contents upon failure of the company to produce the instrument on the trial.

In Kohne v. The Insurance Company † the terms of insurance upon a vessel were agreed upon between the agent of the plaintiff and the company. For the premium a note was to be received with approved security. A policy was accordingly filled up by the president, in comformity with the agreement, and notice thereof given to the agent. Three days afterwards the agent called at the office of the company to deliver the note and receive the policy. The company had in the meantime heard of the loss of the property insured, a fact which was unknown to either party when the agreement was made, and refused to deliver the policy, asserting that the agreement for the insurance was inchoate, which it had a right to retract. The assured then brought trover for the policy, and Mr. Justice Washington, presiding in the circuit court, sustained the action, holding that the contract was perfected when the policy was executed, and, of course, that the possession of the instrument by the company, after giving notice of its execution, did not impair the title of the assured.‡

In Lightbody v. The North American Insurance Company, the agent of the plaintiff made a contract of insurance of certain buildings with the agent of the defendant on the 30th of March, and paid the required premium. On the following morning the buildings were destroyed by fire. The policy was made out and delivered by the agent on the 21st of April following, after the company had refused to pay the loss; and the court held that the policy took effect by relation from the day of its date, which was the day the premium was paid and the contract concluded; that it was the manifest intent of the parties that the contract should operate from its date, so as to give the plaintiff the same legal remedy which he would have had if the policy had been then delivered; that the agent pursued his authority in delivering the policy after the loss, and that the delivery bound the defendants.

In a recent case in the Court of Appeals of Kentucky, this precise question was considered, and its determination was in accordance with the views we have expressed.* There the suit was to enforce a parol contract of insurance made by the agent of the company, whose charter provided that all policies or contracts of insurance made by the corporation should be "subscribed by the president, or president pro tem., and signed and attested by the secretary, and being so signed and attested," should be binding and obligatory upon the corporation without its seal, according to the tenor, extent, and meaning of the policies or contracts. And the court held that this clause did not require an executory contract for an insurance to be in writing, and said, that it knew of no American charter which did so require, observing that whilst a policy as an executed contract of insurance was defined to be documentary and authenticated by the underwriter's signature, yet a contract to issue a policy as an executory agreement to insure might In the case of The City of Davenport v. The Peoria Marine and be binding without a written memorial of it; that no statute of Fire Insurance Company? the power of an agent to issue a policy frauds applied, and that the common law did not require writing. after a loss, pursuant to his agreement, was very fully and ably There is no suggestion that the preliminary contract in this case considered with reference to the principal decisions on the subwas not made in perfect good faith on both sides, with full knowledge ject. There the agreement for insurance was made between the by the agent of the condition, character, and value of the property parties by their agents on the 20th of March; on the night of the insured. The credit allowed for the payment of the premium was same day the property was destroyed by fire; on the following an indulgence which the agent was authorized by general usage to morning the policy was executed and delivered in accordance give. Its allowance did not impair the preliminary contract; that with the agreement, both parties at the time being ignorant of the being valid could have been enforced in a court of equity against loss. The court held that the policy was valid and binding; that the company; and having been enforced by the procurement of a the doctrine that an act done at one time may take effect as of a policy, an action could have been maintained upon the instrument; prior time, by relation back, was applicable to contracts of insurance; or the court in enforcing the execution of the contract might have that the agreement to insure was the principal act, and that the entered a decree for the amount of the insurance. But no resort formal execution of the policy might be concurrent therewith, or to a court of equity for specific performance was necessary in this subsequent thereto, and when subsequent, and made as of the date case by reason of the action of the agent in filling up the blank of the principal act, took effect by relation as of that date. policy, which was duly attested, as he should have done immedi- Numerous other authorities to the same purpose were cited on ately after the preliminary arrangement with the assured. The the argument, but we do not deem it necessary to pursue the subagent was authorized to do after the fire, that which he had previ-ject further. We see no error in the ruling of the court below, and ously stipulated to do on behalf of the company. The original its judgment must, therefore, be affirmed; and it is so ordered. neglect to fill up the blank policy, at once constituted no valid NOTE. The statement of facts made by the learned justice in this case is reason for further delay. If the policy filled up at once would not very full, and many of the apparent facts are stated argumentatively. It have bound the company, so must the policy subsequently filled up. The relations of the parties and the obligations of the company were not changed by the neglect of the agent. The filling up of the policy was a voluntary specific performance of the pre- many of the elements of a leading case, the facts are not so fully stated as to liminary agreement. And, when filled up, the policy was by ex-give to the opinion a rounded completeness, and make unnecessary a resort press stipulation to be held by the agent in his safe for the assured, and no actual manual transfer was, under these circumstances, essential to perfect the latter's title. It then became his property, and upon a refusal of the defendant to surrender it, two courses were open to him; either to proceed by action to recover the posses*Constant v. The Insurance Co., 3 Wallace, C. C. 316.

was probably expected of the industrious reporter, Mr. Wallace, that he would supply a full report of the facts, according to his usual practice. If we might criticise the form of the opinion in this respect, it would be by expressing regret that in a case of so great importance as this, and possessing so

to extraneous statements.

rine and Fire Insurance Company, 7 Bush, 81.
*The Security Fire Insurance Company of N. Y. v. The Kentucky Ma-

†Washington's C. C. Rep., vol. 1, 93.

See also Sheldon v. Conn. Mutual Ins, Co, 25 Conn., 207.
23 Wendell, 18.

217 Iowa, 277.

Correspondence.

WOMEN AS COUNSEL.

1. In the following named cases the charter of the insurance company provided that all policies should be in writing, and it was held that a valid contract might be made without any policy: Post v. Etna Ins. Co., 43 Barb. 351; Walker v. Metropolitan I. Co., 56 Me. 371; N. E. Ins. Co. v. DeWolf, 8 Pick. 56; Bapt. Ch. v. Brooklyn I. Co., 19 N. Y. 305. In the last-named case the reasons for the decision are amplified by Comstock, J., who holds the main object of such provisions of the charter to be the regulation of the manner in which the officers of the corporation shall discharge their duties, and not a restriction upon the corporate powers. In Henning v. U. S. Ins. Co., 47 Mo. 425, and Mutual Ins. Co. v. McGillevray, 9 Lower Can. R. 488, the same question arising, it was held that the mode of action pointed out in the charter was exclusive of all others. souri case came before Judge Dillon of the 8th U. S. Circuit, he declined to follow the supreme court of that state, and decided in Henning v. U. S. Ins. Co., 2 Dillon, 26, in accordance with the law as now determined by the Jurisdiction of United States Circuit Courts-Reprincipal case.

BOSTON, March 16, 1875. EDITORS CENTRAL LAW JOURNAL:- If your correspondent, "N.," in your last issue, will turn to the fifth edition of Lord Raymond's Reports, ably edited by Charles James Gale, London, 1832, he will find something "to support the extraordinary statement in the case referred to." It is there printed “ Mrs.,” and not Mr. Cheshyre, counsel with the plaintiff." But it is unBut when the Mis-doubtedly a typographical error. I did not so understand it, however, when I copied it.

It will be observed that the charter in this case applies to every contract, bargain, agreement or policy for insurance; in which respect it is far more stringent than most of the charters which have passed in review. In sustaining the power of the corporation to contract orally, notwithstanding this charter, the supreme court goes far beyond any of the state courts. It is interesting here to note how far this learned and progressive court has advanced from the position it occupied in 1804, when Marshall, C. J., held that an insurance company was "precisely what the incorporating act has made it, deriving all its powers from that act, and capable of exerting its faculties only in the manner which that act authorizes." Head v. Providence Ins. Co., 2 Cranch, 167.

2. The cases which hold that in general a contract of insurance does not depend on the actual delivery of the policy, will be found collected in Flander's on Fire Ins., pp. 116 and 130, and May on Ins., pp. 16-23.

moval of Causes.

F. F. H.

AN ACT TO DETERMINE THE JURISDICTION OF CIRCUIT COURTS OF THE
UNITED STATES, AND TO REGULATE THE REMOVAL OF CAUSES FROM
STATE COURTS AND FOR OTHER PURPOSES.

Be ti enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs,the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintifts or petitioners, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects; and shall have exclusive cognizance of all crimes and offenses cognizable under the au

current jurisdiction with the district courts of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an in habitant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided; nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills exchange. And the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions prescribed by law.

In addition to the cases cited in the foregoing opinion, it has been held, and for reasons similar to those there given, that in the absence of fraud, the in-thority of the United States, except as otherwise provided by law, and consured was liable where the policy was not delivered nor the premium paid until after the loss had occurred, in Bragdon v. Appleton Ins. Co., 42 Me. 259; Hallock v. Com. Ins. Co., 2 Dutcher (N. J.), 268; Com. Ins. Co. v. Hallock, 3 Dutch. 645, and Keim v. Home Ins. Co, 42 Mo. 38, which last case was since fully approved in Baldwin v. Chouteau Ins. Co., 3 Ins L. Jour. 369 (S. C. Mo., Mar. 23, 1874). A similar conclusion was reached in Ellis v. Albany City Co., 50 N. Y. 402, where the premium had been paid but the policy not delivered at the time of the loss. The same principle is recognized in Bapt. Ch. v. Brooklyn Ins. Co., 28 N. Y. 153. To these may be added the case of Merchants' Ins. Co. v. Patterson, decided by the Supreme Court of the United States, Jan. 7th, 1874 (not reported), in which the policy to run for 12 mos. from Jan. 1, 1869, was made and dated March 1, 1869, and a loss having occurred before the last named date, it was held that the neglect of the assured to report the loss, did not affect or avoid the policy. A different conclusion was reached in Marland v. Royal Ins. Co., 71 Penn. St. 393, where the policy at the time of loss was held by an insurance broker for the convenience of the assured, the premium not having been paid, and the insurer was held not liable.

3. On the question of remedy, the dictum that equity, having jurisdiction to compel by specific performance, the issuance and delivery of a policy, will, to avoid circuity of action, render judgment for the amouut of the policy, is sustained by the cases of Perkins v. Washington Ins Co., 4 Cowen, 645; Carpenter v. Mut. Safe. Ins. Co., 4 Sandf. Ch. 408; Union M I. Co. v. Com. Ins. Co., 2 Curtis, 524; and there is a like dictum in 43 Barb. 363. supra. Like relief was granted in Palm v. Medina Co. Ins. Co., 20 Ohio, 529, the Ohio practice, however, blending law and equity in one form of action. The grant of relief in the principal case, on legal principles, is in accord with the cases in 2 Dutch. 268, 3 Dutch 645, 42 Mo. 259 and 43 Barb. 351, supra, in which an action at law was sustained without any delivery of the policy. The italicised sentence of the opinion is in accord with the cases in 42 Mo. 38, and 3 Ins. Law Jour. 369, supra, in which the procuring of the policy by the assured from the agent after the loss, without communicating the fact of loss, is sustained as a matter of right and not a fraud. All the cases rest upon the doctrine that the policy upon execution needs no delivery, but at once becomes a vital policy and the property of the assured, and if withheld, he may sue either in trover, assumpsit or case. This doctrine is elaborated in 2 Dutch. 278, and 3 Dutch. 647, supra, in language as clear as that used in the principal case; and is attributed to the text-writers Marshall, Duer and Angell, who have in turn deduced it from the early case of Harding v. Carter, decided in 1781, and reported in Park on Ins., p. 4, where, curiously enough, Lord Mansfield sustained an action of trover against two insurance brokers, for two policies that had never existed, save in the representations of the brokers and the confident belief of the plaintiff. J. O. P.

SEC. 2. That any suit of a civil nature at law or in equtiy, now pending or hereafter brought in any state court where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects, either party may remove said suit into the Circuit Court of the United States for the proper district; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy, may remove said suit in the Circuit Court of the United States for the proper district.

SEC. 3. That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section, shall desire to remove such suit from a state court to the Circuit Cour of the United States, he or they may make and file a petition in such suit in such state court before or at the term at which said cause could be first tried, and before the trial thereof, for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for there appearing and entering special bail in such suit, if special bail was originally requisite therein, it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged;