of the persons so married, or either of them, that they have been lawfully joined in marriage. This, it is argued, raises an implication that marriages not in the presence of a minister or justice, or one professing to be such, were intended to be declared void. But the implication is not necessarily so broad. It is satisfied if it reach not beyond marriages in the mode allowed by the act of the Legislature.

The 15th section exempts people called Quakers or Friends from the operation of the act, as also Menonists. As to them the act gives no directions. From this, also, an inference is attempted to be drawn that lawful marriages of all other persons must be in the mode directed or allowed. We think the inference is not a necessary one. Both these sections, the 14th and 15th, are to be found in the acts of other States, in which it has been decided that the statutes do not make invalid the common-law marriages.

It is unnecessary, however, to pursue this line of thought. If there has been a construction given to the statute by the Supreme Court of Michigan, that construction must in this case be controlling with us. And we think the meaning and effect of the statute has been declared by that court in the case of Hutchins vs. Kimmell (31 Mich. 126), a case decided on the 13th of January, 1875. There, it is true, the direct question was whether a marriage had been effected in a foreign country. But in considering it the court found it necessary to declare what the law of the State was, and it was thus stated by Cooley, J.: "Had the supposed marriage taken place in this State, evidence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and co-operation of the parties, would have been "evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time live together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties,

and which would subject them and others to legal penalties for a disregard of its obligations. This has become a settled doctrine of the American courts; the few cases of dissent, or apparent dissent, being borne down by the great weight of authority in favor of the rule as we have stated it," citing a large number of authorities, and concluding, "such being the law of this State." We can not regard this as mere obiter dicta. It is rather an authoritative declaration of what is the law of the State, notwithstanding the statute regulating marriages. And if the law in 1875, it must have been the law in 1845, when, it is claimed, Mowry and the Indian girl were married, for it is not claimed any change of the law was made between the time when the statute was enacted and 1875. The decision of the Michigan Supreme Court had not been made when this case was tried in the court below. Had it been it would doubtless have been followed by the learned and careful circuit judge. But, accepting it as the law of Michigan, we are constrained to rule there was error in charging the jury that if they found neither a minister nor a magistrate was present at the alleged marriage, such marriage was invalid and the verdict should be for the defendants.

It has been argued, however, that there was no evidence of any marriage good at common law, which could be submitted to the jury, and, therefore, that the error of the court could have done the plaintiff no harm. If all the evidence given or legally offered were before us we might be of that opinion, but the record does not contain it all, and we are unable, therefore, to say the ruling of the court was immaterial. The case must, therefore, go back for a new trial. We do not consider the other questions presented. They may not arise on the second trial.

The judgment is reversed, and a new trial ordered.

THE NEW YORK LIFE INSURANCE COMPANY

VS.

EGGLESTON ET AL., ADMINISTRATORS, ET AL.

LIFE INSURANCE-FORFEITURE FOR NON-PAYMENT-NOTICE TO PAY AGENT-NOTICE NOT GIVEN.-The assured, residing in a State distant from the home office of the insurer, had always dealt with the agents of company, located either in his own State or within some accessible distance; he had originally taken his policy from, and had paid his first premium to, such an agent, and the company had always, until the last premium became due, given him notice what agent to pay, which became necessary because there was not a permanent agent in the vicinity; and the jury were charged that under these circumstances the assured had reasonable cause to rely on having such notice. Held: that this charge was rightly made.

In error to the Circuit Court for the Northern District of Mississippi.

This was an action on a policy of life insurance, issued by the plaintiff in error (the defendant below, a New York corporation doing business in the city of New York), on the 11th of November, 1868, for the sum of $5,000, on the life of Edward C. Eggleston, a resident of the State of Mississippi, for the benefit of his children, Louisa and Thomas, and in consideration of an annual premium of $306, payable (after the first premium) semi-annually, one-half on the 11th of November, and one-half on the 11th of May in each year. The policy contained the usual condition that if the premiums were not paid on or before the respective days named, together with any interest that might be due thereon, the company should not be liable. The following clause was added: "All receipts for premiums are to be signed by the president or actuary. Agents for the company are not authorized to make, alter, discharge contracts, or waive forfeitures. Eggleston died on the 5th of January, 1872.

The defense set up on the trial was, that the policy was forfeited by the failure of the assured to pay the last installment of premium, which fell due on the 11th of November, 1871. The cause was tried by a jury, and the only question raised by the bill of exceptions, and brought here for review, is, whether the judge properly left to the jury the question of fact which was made by the plaintiffs below in answer to

the alleged forfeiture. The case presented on the trial, as shown by the bill of exceptions, was as follows:

The plaintiffs proved that the policy of insurance mentioned in the declaration was delivered and the first premium received thereon by one Stevens, a local agent of the defendant in Columbus, Mississippi, and that E. C. Eggleston, upon whose life said policy was issued, then and up to his death, resided in the immediate vicinity; that soon after issuance of said policy the agency of said Stevens was revoked and no other agent appointed at that place; that said Eggleston was notified by defendant to pay the next premium falling due to Johnston & Co., their agents at Savannah, Georgia, and that he was also notified to pay the subsequent premiums to B. G. Humphreys & Co., the defendant's agents at Vicksburg, Mississippi, except the one falling due November 11, 1871, all the other premiums falling due before the death of said E. C. Eggleston having been paid. It was also testified by sons of said E. C. Eggleston, and by Goodwin, the cashier of the bank through which the other payments had been made, and if any notice was given by the defendant to said Eggleston to whom and where the said premium due the 11th day of November, 1871, should be made, that they did not know it; and that said Goodwin had the money to pay the said premium, which would have been paid had the notice been given; and after said premium became due and payable, said Goodwin, for said Eggleston, telegraphed to Johnston & Co., at Savannah, Georgia, inquiring to whom payment should be made, who replied to telegraph to B. G. Humphreys & Co., at Vicksburg; that B. G. Humphreys & Co. replied to make payment to Baskerville & Yates, sub-agents, at Macon, Mississippi, who held the payment receipt. On December 30, 1871, a friend of said Eggleston tendered payment of the premium to Baskerville & Yates, which was refused unless a certificate of health was furnished; said Eggleston was then sick, and died on the 5th of January, 1872. One Williams, a clerk of Baskerville & Yates in their insurance business, and a witness for defendant, testified that on the 1st of November, 1871, he mailed a

notice post-paid to said Eggleston, addressed to him at Columbus, Mississippi, to make payment to Baskerville & Yates, agents at Macon, Mississippi, and that they held the proper premium receipt. Macon, Mississippi, it was found, is thirty miles from Columbus by railroad.

Upon this evidence the judge charged the jury as follows: "The non-payment of the premium is admitted, and if nothing more appears from the evidence the plaintiffs will not be entitled to recover. To avoid the defense, it is insisted by the plaintiffs that the non-payment was caused by the defendant not having given to the said Eggleston notice of the place where payment was required, and, therefore, the fault of the company, and not that of Eggleston or the plaintiffs. The onus of proving the cause for non-payment is on the plaintiffs. [If you shall believe from the evidence that the payments of the premiums had before that time been made to such agents as the company had designated from time to time, and of which and to whom said Eggleston was given notice by the defendant, and that no such notice was given to Eggleston before the time the non-paid premium fell due, and that as soon as he did thereafter receive such notice he did tender to the designated agent the premium due, and that such failure to pay was caused by the want of such notice, then the policy was not forfeited, and the plaintiffs will be entitled to recover the amount of the policy, with six per cent. interest from sixty days after the company was notified of the death of Eggleston, less the amount of any unpaid premiums, with like interest, up to the death of said Eggleston.] If you shall believe from the evidence that the notices before given were by letter through the mail, and that the agent of the company authorized to receive payments of the premium mailed to said Eggleston at his post-office such notice within such time as by due course of mail he would have received it, and within a reasonable time for Eggleston to make payment, then Eggleston will be held to have received such notice, and the plaintiffs will not be entitled to recover. The onus or burden of proof of such notice having been given is on the defendant." The defendant excepted to so