▼. Funding Board, 28 La. Ann. 258, holding State bonds good in hands of bona fide purchasers, majority holding them unconstitutionally issued; Pugh v. Moore, 44 La. Ann. 233, 10 So. 718, holding fraudulently-reissued State bond good in hands of innocent purchaser before maturity, majority contra; Herwig v. Richardson, 44 La. Ann. 708. See 11 So. 137, like last case on similar facts. Cited in 14 Am. Dec. 426, note, 15 Am. Rep. 54, note.

Cited, but application denied, in Morgan v. United States, 113 U. S. 491, 494, 28 L. 1049, 1050, 5 S. Ct. 593, 595, holding bonds "due" on date fixed for payment, not on date of optional redemption. Distinguished in Merriwether v. Saline County, 5 Dill. 273, F. C. 9,485, holding bonds non-negotiable by reason of stipulation for conversion into other bonds at maker's option.

Bills and notes.- Purchaser of overdue treasury notes takes subject to rights of antecedent holder, p. 144.

Cited and applied in Wood v. McKean, 64 Iowa, 18, 19 N. W. 818, holding purchaser of overdue note, intended merely as security, takes only his assignor's rights; Stern Bros. v. Bank, 34 La. Ann. 1120, holding purchaser of overdue State bonds coupons takes subject to all equities; McKim v. King, 58 Md. 505, 42 Am. Rep. 342, applying rule to purchase of overdue interest coupons from railroad bonds; Hinckley v. Union Pacific R. R., 129 Mass. 60, 37 Am. Rep. 301, holding maker of overdue coupon, having paid same to thief, liable to true owner, notice of theft having been given; Ford v. Phillips, 83 Mo. 530, holding purchaser of overdue negotiable paper from holder for collection, takes in same capacity; Northampton Bank v. Kidder, 106 N. Y. 225, 60 Am. Rep. 445, 12 N. E. 578, holding purchaser of overdue railroad bonds takes subject to equities; Texas Banking, etc., Co. v. Turnley, 61 Tex. 370, holding purchaser of State bonds after maturity, takes subject to equities.

Distinguished in Fairex v. Beer, 37 La. Ann. 825, holding innocent purchaser from fraudulent holder of bonds not due, gets good title, although overdue coupons were attached.

Customs and usages.— Bankers cannot establish, by proof, a custom or usage in dealing with treasury notes which, in their interest, contravenes established commercial law, p. 146.

Cited in Jackson v. Bank, 92 Tenn. 159, 36 Am. St. Rep. 83, 20 S. W. 803, 18 L. R. A. 667, and n., refusing proof of custom contravening commercial law, in interest of party offering proof. See 75 Am. Dec. 326, note on stock brokers' usages.

Banks and banking. It is duty of banks notified of theft of commercial paper to retain memoranda of such notice, p. 146.

See note in 23 Am. Rep. 17, discussing notice of theft of bonds.

Bills and notes.- Treasury notes stolen and sold for value to Innocent purchaser after maturity, may be recovered from latter by assignee of owner, p. 147.

Cited in Holmes v. Balcom, 84 Me. 234, 24 Atl. 822, holding carrier succeeding to consignee's interests succeeds to his right of ac tion for wrongful attachment.

21 Wall. 147-151, 22 L. 534, FRENCH v. EDWARDS.

Trusts.

Where a trust to convey becomes impossible to execute, it is the trustee's duty to reconvey to his grantor, p. 149.

Trusts. In order to warrant presumption that trustee has reconveyed to grantor, it must have been trustee's duty to reconvey; there must be sufficient reason for the presumption, and object of presumption must be support of a just title, p. 150.

Trusts.- Where, through failure of the trust, duty has been cast upon trustee to reconvey to grantor, presumption arises that he has done so, p. 150.

Followed in French v. Edwards, 5 Sawy. 269, F. C. 5,098, holding such presumption of reconveyance conclusive; dissenting opinion in Weisenberg v. Truman, 58 Cal. 73, majority holding title still in trustees.

Trusts.- Presumption that trustee has reconveyed to grantor, on failure of trust, never arises where actual conveyance would involve breach of duty by trustee or wrong others, p. 150.

Trial. When jury is waived and cause tried by court, latter's findings of fact have effect of special verdict of jury, p. 151.

Cited in Allen v. St. Louis Bank, 120 U. S. 30, 30 L. 575, 7 S. Ct. 461, holding question whether facts found support judgment recov erable on writ of error without bill of exceptions.

21 Wall. 152-157, 22 L 593, INSURANCE CO. v. MAHONE.

Insurance. In action on policy testimony is admissible on behalf of assured, to prove that assured's answer to question in application, as there written by agent, was not answer actually given, p. 155.

Cited and relied upon in New Jersey Ins. Co. v. Baker, 94 U. S. 614, 24 L. 270, a similar case; Glover v. National Fire Ins. Co., 85 Fed. 131, 42 U. S. App. 728, holding admissible, evidence showing that misdescription in policy was made by agent; Howe v. Provident Fund Society, 7 Ind. App. 594, 34 N. E. 832, holding assured not estopped by statement in application that agent acts for applicant, from proving him agent of company, and answers as written by him not those given; Rivara v. Queen's Ins. Co., 62 Miss. 729, holding parol evidence admissible to show circumstances of issuance of policy; Miller v. Phoenix Ins. Co., 107 N. Y. 302, 14 N. E. 276, admitting parol evidence to show that applicant's age, as written, was not that given by him; McLean v. Piedmont, etc.

Ins. Co., 29 Gratt. 376, holding parol evidence admissible to show conditions inserted in receipt violative of oral contract; arguendo, Selby v. Mutual Life Ins. Co., 67 Fed. 492.

Insurance. Where applicant truthfully answered question in application, but agent wrote down his own interpretation thereof, applicant is entitled to assume that his answers were accepted as meaning what agent wrote, and company cannot hold him bound by answer as written, p. 156.

Following are the citing cases approving and relying upon this holding: Continental Ins. Co. v. Chamberlain, 132 U. S. 309, 33 L. 343, 10 S. Ct. 88, a similar case, decided under Iowa statute making solicitor company's agent; Metropolitan Ins. Co. v. Harper, 3 Hughes, 267, F. C. 9,505, holding company bound, where its agent so interpreted applicant's answers; Sawyer v. Equitable Ins. Co., 42 Fed. 32, 34, where agent inserted false statement of applicant's income, without latter's knowledge; Mutual Benefit Ins. Co. v. Robison, 54 Fed. 595, refusing to cancel policy, replies in application having been written by agent; Pacific Mutual Life v. Snowden, 58 Fed. 346, 12 U. S. App. 704, holding company bound by agent's classification of risk, based upon his interpretation of answers; Mutual Benefit Life Ins. Co. v. Robison, 58 Fed. 730, 19 U. 8. App. 266, 22 L. R. A. 331, holding company estopped to deny truth of agent's construction of applicant's answer; Standard Life Ins. Co. v. Fraser, 76 Fed. 708, 44 U. S. App. 694, holding company bound where applicant stated facts truly, and followed agent's advice in answering; New York Life Ins. Co. v. Russell, 77 Fed. 102, 103, 40 U. S. App. 530, an identical case; Phoenix Ins. Co. v. Warttemberg, 79 Fed. 248, 48 U. S. App. 348, a similar case; Insurance Co. v. Brodie, 52 Ark. 14, 11 S. W. 1016, 4 L. R. A. 459, where agent filled up application, writing false answers; Wheaton v. Insurance Co., 76 Cal. 419, 420, 9 Am. St. Rep. 218, 219, 18 Pac. 760, holding misstatements written in application by agent, unknown to applicant, do not avoid policy, collecting cases; Pickel v. Phoenix Ins. Co., 119 Ind. 298, 21 N. E. 900, holding company estopped by false answers written by agent, applicant having answered truthfully; Germania Life Ins. Co. v. Lunkenheimer, 127 Ind. 543, 26 N. E. 1084, holding company estopped to claim applicant negligent in signing application filled by agent without reading same; Bowlus V. Phoenix Ins. Co., 133 Ind. 117, 32 N. E. 323, 20 L. R. A. 404, and n., holding assured will not be made to suffer through agent's entry of false answers in application; Sullivan v. Phoenix Ins. Co., 34 Kan. 174, 8 Pac. 115, holding company estopped from insisting on breach of warranty; State Ins. Co. v. Gray, 44 Kan. 735, 25 Pac 198, where agent wrote answers different from those given in application for fire insurance; Insurance Co. v. Davis, 59 Kan. 527. 53 Pac. 858, a like case; Young v. Insurance Co., 80 Me. 250, 13 Atl. 898, where agent wrote out proof of loss, misstating date of acci

dent, and assured signed same by his advice; Mailhoit v. Metropolitan Ins. Co., 87 Me. 381, 47 Am. St. Rep. 340, 32 Atl. 991, holding policy voidable only, where fraud in procuring same was committed by company's agent; Marston v. Insurance Co., 89 Me. 272, 275, 56 Am. St. Rep. 416, 418, 36 Atl. 391, 392, holding insurer estopped from controverting truth of answers as written by its agent; Ben Franklin Ins. Co. v. Gillett, 54 Md. 218, holding equity will reform policy where answers written by agent are not those given by applicant; Keystone Mutual Benefit Assn. v. Jones, 72 Md. 365, 20 Atl. 196, where applicant did not know her age, and agent filled in his guess thereat; Westchester Fire Ins. Co. v. Earle, 33 Mich. 151, holding company bound where agent has estopped himself from denying validity of oral modification of policy; Kansal v. Minnesota, etc., Ins. Assn., 31 Minn. 21, 47 Am. Rep. 777, 16 N. W. 430, holding rule applicable to mutual associations and not affected by statement in subsequently-issued policy that agent acts for applicant; Planters' Ins. Co. v. Meyers, 55 Miss. 499, 504, 505, 510, 30 Am. Rep. 524, 526, 527, 528, an identical case, fully discussing rule, and reviewing many cases; Baker v. Home Ins. Co., 64 N. Y. 650, applying rule in like case; Mowry v. Rosendale, 74 N. Y. 363, applying rule in like case, and holding recognition of party filling application, as company's agent in procuring risk, sufficient evidence of his agency; Flynn v. Equitable Ins. Co., 78 N. Y. 577, 34 Am. Rep. 565, where application was filled out by company's examining physician; Miller v. Phoenix Mutual Ins. Co., 107 N. Y. 301, 14 N. E. 275, where applicant, being ignorant of his age, agent filled in his estimate thereof; Follette v. Mutual Accident Assn., 110 N. C. 381, 28 Am. St. Rep. 696, 14 S. E. 924, 15 L. R. A. 669, holding company bound where agent, with knowledge of falsity of applicant's statement, forwards application to company; Johnson v. Dakota Fire Ins. Co., 1 N. Dak. 179, 45 N. W. 803, error in statement written by agent in application, chargeable to insurer; Insurance Co. v. Williams, 39 Ohio St. 589, 48 Am. Rep. 476, holding insurer bound by mistakes made by agent in filling application; Smith v. Insurance Co., 173 Pa. St. 25, 33 Atl. 569, where agent made out application for insurance on horse; Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 270, 15 S. E. 583, holding charge that agent cannot waive any conditions properly refused; Johnston v. Northwestern Live-Stock Ins. Co., 94 Wis. 121, 68 N. W. 869, where agent, without applicant's knowledge, entered in application false answer as to amount of mortgage.

Cited generally in Sias v. Roger Williams Ins. Co., 8 Fed. 186, to point that solicitor is agent for company, not for applicant; Hartford Ins. Co. v. Keating, 86 Md. 147, 63 Am. St. Rep. 505, 38 Atl. 31, holding clause in policy that agent has no power to waive conditions, does not apply to conditions relating to inception of contract, but to modification of terms of policy. See 77 Am. Dec. 724,

728, note on effect of stipulations seeking to make agent of insurer agent of assured; 12 Am. St. Rep. 403, note.

Distinguished in New York Life Ins. Co. v. Fletcher, 117 U. S. 531, 29 L. 938, 6 S. Ct. 843, holding policy void where applicant had notice of agent's lack of authority to interpret answers; Laclede Mfg. Co. v. Hartford Boiler Ins. Co., 60 Fed. 359, 19 U. S. App. 510, holding company not bound by promise of agent made without authority; Maler v. Fidelity Mutual Life Co., 78 Fed. 571, 47 U. S. App. 322, where agent filled out application himself, applicant not being present; Hubbard v. Mutual Reserve Fund Ins. Assn., 80 Fed. 685, where application contained agreement solicitor should be applicant's agent; New York Life Ins. Co. v. M'Master, 87 Fed 69, 57 U. S. App. 647, holding company not bound by agent's parol misstatement of effect of contract; United States Life Ins. Co. v. Smith, 92 Fed. 508, holding company not bound where applicant wrote false answer on agent's advice; Alabama Gold Life Ins. Co. v. Garner, 77 Ala. 216, holding mere fact that agent wrote answers from memorandum of applicant's answers does not constitute them answers of company; Sellers v. Commercial Ins. Co., 105 Ala. 290. 16 So. 799, where party writing application was agent for applicant; Flynn v. Equitable Ins. Co., 67 N. Y. 506, 23 Am. Rep. 137, holding examining physician not company's agent for purpose of filling out application. Departed from in M'Coy v. Metropolitan Ins. Co., 133 Mass. 85, holding policy in similar case void under Massachusetts doctrine.

Insurance.- Opinion of physician as to applicant's health several months before issuance of policy, is not admissible in action thereon, there being no issue as to previous health, p. 157.

Evidence.- Opinion of agent, based upon past occurrences, is inadmissible as an admission of his principals; hence in suit on insurance policy, evidence that company's general agent thought plaintiff's claim should be paid, is inadmissible, p. 157.

Cited and applied in Beasley v. San José Packing Co., 92 Cal. 392, 28 Pac. 486, holding erroneous, in action for injuries through negligence of fellow servant, admission of declaration of defendant's foreman, made after accident, that he knew fellow servant to be careless; Crawford v. Transatlantic Co., 125 Cal. 612, 58 Pac. 178, holding declarations of former agent, made after delivery of policy as to past occurrence, inadmissible; First Nat. Bank v. North, 6 Dak. 141, 41 N. W. 737, holding agent's acts subsequent to occurrence cannot bind principal; Ryan v. Gilmer, 2 Mont. 521, 25 Am. Rep. 746, holding statement of defendant's driver subsequent to accident, that same was caused by his carelessness, inadmissible in action for damages therefor; Nebonne v. Railroad, 67 N. H. 532, 38 Atl. 17, holding statement of conductor, subsequent to accident, of cause thereof inadmissible in action for damages therefor; La Rue v. St. Anthony