The United States v. Seaman.

that the enactments of Congress now under consideration have any application to such acts."

No Act of Congress should be interpreted, unless the language used admits of no other interpretation, to press beyond the certain confines of constitutional power, (United States v. Coombs, 12 Peters, 72,) and especially should this rule be observed in the interpretation of a criminal statute relating to offences upon the border line of the national jurisdiction. Such, clearly, would be the character of the statute in question if it explicitly made it a crime to vote or attempt to vote under an assumed name, for a State or county officer, at any election for a representative in Congress. Such a statute would not only be of doubtful constitutionality, but no doubt is entertained that it would be plainly unconstitutional, unless the act made criminal could in some way affect the election of a representative, as it might in those States where ballots for the State or local officers contain also the name of the candidate for representative.

Aside from these general considerations, a clear exposition of the meaning of the section is furnished by section 5,514. That section can have no application if it is unnecessary to prove, upon the trial of an indictment under section 5,511, that the accused voted or attempted to vote for a representative in Congress. It demonstrates the intention of Congress to legislate only to the extent required to secure an honest and unvitiated election of representatives, and in this behalf not to make any act penal which does not necessarily militate against this object.

Reading both sections together, it seems plain that the essence of the crime created by section 5,511 is an attempt to vote unlawfully for a representative in Congress, not an attempt to vote unlawfully at an election at which a representative may be voted for. The indictment should, therefore, have charged that such an attempt was made by the defend

ant.

As there was no such averment, the defendant was improperly convicted.

The United States v. Seaman,

BENEDICT, J. I am of the opinion that the defendant is entitled to a new trial, for the reason that, at the trial, it was conceded by the District Attorney that the indictment did not aver an attempt to vote for representative in Congress.

The charge to the jury, to which no exception was taken, shows that the case was tried upon this understanding. If it had been submitted to the jury to say whether the evidence satisfied them that the accused attempted to vote for representative in Congress, and the jury upon such a charge had found the accused guilty, I incline to think the indictment sufficient, after verdict, to authorize judgment. The imperfect averment of the indictment would have been cured by such a verdict. But the verdict, taken in connection with the charge, renders it plain that the jury did not, by their verdict, necessarily find the accused guilty of having attempted to vote for a representative in Congress. The absence of such a finding entitles the accused to a new trial.

BROWN, J. Construing § 5,511 in connection with $5,514, I think the offence designed to be created and punished by the statute is that of knowingly personating and voting, or attempting to vote, in the name of any other person, for a representative in Congress, and not for such an attempt to vote for any State officer at the same election. Upon this construction, the indictment should have charged an attempt to vote for a representative in Congress, and not merely an attempt to vote at an election for a representative in Congress. (United States v. Carll, 105 U. S., 611; United States v. Britton, 107 U. S., 655.)

No objection, however, was taken, at the trial, to the form of the indictment. In fact, it was erroneously assumed by the counsel for the accused, that the indictment did charge an attempt to vote for a representative in Congress; and the Court was requested to direct an acquittal on the ground that there was no proof that the defendant offered or attempted to vote for a delegate or representative in Congress, "as charged in the indictment." The Court denied the request,

The United States v. Seaman.

and instructed the jury that there was nothing for them to do but to find whether or not this man attempted to vote at this election, under the name of Abraham Levy, when his name was not Abraham Levy; and that, if he did, he had committed this offence.

As respects the nature of the indictment, according to the bill of exceptions, the following occurred: "The Court.Does the indictment so charge? Mr. Foster (U. S. Attorney). It does not so charge. It states an election, but don't state who he attempted to vote for."

The evidence shows that there were seven different ballotboxes, one of which was for a representative in Congress, and the other six for State officers. Upon presenting himself and offering to vote, the accused had handed to one of the inspectors a bunch of tickets, or ballots. One of the witnesses says: "A.-He presented himself to the inspectors and offered to vote the ballots. Q.-Which resembled the ballots you had been offering all day to the other parties? A.-Yes, sir. Q.-You didn't take them and scrutinize them? A.No, sir." From this evidence and other similar evidence, I think the jury might have found, as an inference of fact, in the absence of all contrary evidence, that the defendant did attempt to vote for a representative in Congress, and that the refusal to charge as requested was, therefore, proper. It is true, also, that no exception was taken to the charge as made by the Court. Had it not, therefore, distinctly appeared, from what occurred at the close of the trial, that the Government did not claim a conviction upon the narrower ground of an attempt to vote for a representative in Congress, but upon the broader ground that he had simply attempted to vote at all at that election, the defect in the indictment might have been regarded as cured by the verdict, since it plainly appears, from the request, that the defendant was not misled by it. From what is above stated, however, it seems clear, that the defect in the indictment cannot be regarded as a matter of form only. The jury must have understood that they should convict the defendant if he voted for any candidate at that

The Prudential Assurance Company v. The Ætua Life Insurance Company.

election; so that it cannot be inferred from the verdict that they meant to find that he did attempt to vote for a representative in Congress. The defect in the indictment is not, therefore, cured by the verdict.

The verdict should be set aside.

Benjamin B. Foster, (Assistant District Attorney), for the United States.

Charles A. Hess, for the defendant.

THE PRUDENTIAL ASSURANCE COMPANY

vs.

THE ETNA LIFE INSURANCE COMPANY.

A life insurance company, having made an insurance for life for £3,000, applied to another company to re-insure $5,000 of the risk, stating that it was willing rather to keep $10,000 at risk on the life than buy the policy. The re-insurance being made, the first company afterwards procured the whole risk to be re-insured: Held, that this did not vitiate the policy of re-insurance.

(Before SHIPMAN, J., Connecticut, April 14th, 1885.)

SHIPMAN, J. This is a demurrer to the second defence in the defendant's answer to the plaintiff's complaint upon a policy of life insurance. The facts admitted to be true, for the purposes of pleading, are as follows: In the year 1854, the National Loan Fund Life Assurance Society, which, in the year 1839, had issued to Edward Lawson its policy of insurance upon his life for £3,000, applied to the defendant to re-insure $5,000 of said risk, which was still outstanding. On making said application, the Society represented to the de. fendant, in order to induce it to issue a policy of re-insurance for said sum, that the risk was a good one, a most excellent risk, and they were willing rather to keep $10,000 at risk on

The Prudential Assurance Company v. The Ætna Life Insurance Company.

the life than buy the policy; and therefore, upon the faith and credit of the representation that the Society would keep $10,000 at risk on said life rather than buy the policy, the defendant issued to said Society a policy of re-insurance on Lawson's life, for the term of seven years. In the year 1861, on the expiration of this term, the Society, the name of which had been changed to the International Life Assurance Society, desired to renew said policy for the term of life. The defendant required a new medical examination of Lawson, so as to show his physical condition at that time, and, the same being furnished, upon the faith and credit thereof and of the previous representations made at the time of issuing the original re-insurance policy, the policy in suit was issued.

In the year 1866, the Society re-insured £500 of its said risk in the Royal Insurance Company of London. In the year 1869, the Society ceased business and went into liquidation, and a liquidator thereof was duly appointed. On or about March 30th, 1871, the Society re-insured the entire risk on Lawson's life. Lawson died in May, 1879, having, shortly before his death, and in the same year, surrendered to the plaintiff, for £690, the policy issued by the International Society upon his life. The plaintiff alleges that, on March 30th, 1871, the official liquidator of the Society assigned to the plaintiff, for a valuable consideration, the defendant's policy on Lawson's life, now in suit. This is denied by the defendant. It is agreed that, from March 30th, 1871, until Lawson's death, the premiums on said policy were regularly paid to the defendant by the plaintiff.

It is not denied that the representations in regard to the character of the risk were true, nor is the willingness of the Society, at the time of making the application, to keep $10,000 at risk, denied. An interpretation of the language of the Society, in regard to its willingness to keep the specified sum at risk, is, that it was then willing or then wished to pursue that course. The defendant interprets the meaning to be that the Society represented that it would keep $10,000 at risk rather than buy the policy. The non-performance of its