Wilson vs. The Bank of Louisiana et al. citizen the application of this rule of universal law, that if he held these funds as agent of the government Georgia recognized, he cannot, by Georgia courts, be made liable personally therefor, unless, indeed, he acted fraudulently, and there is no evidence of fraud in this record, and used government as a cloak for crime? Mr. Metcalf must needs have obeyed the mandate of the Confederacy. He could not have invoked the courts of Georgia to aid him in resisting the orders of that government. The military power of the Confederacy was upon her, and the civil magistrates of Georgia were all in vinculis by the bond of a solemn oath; and if he had appealed to either to help him retain this fund, he would have been derided, possibly maltreated, perhaps executed for treason, for his pains. The law is the highest reason--akin to Him who is the author of all real law, and the fountain of all pure reason; it is his offspring; and to hold a man liable out of his private estate under the facts admitted here, would be to sin against the law, against justice and equity, and the pure fountain from which they all flow. 8. Nor does this view conflict, in our judgment, with the decisions of the supreme court of the United States. We deny to the plaintiff the fruits of a garnishment, a process which grows from a rebellious soil, because he invoked the aid of a court then in rebellion against the United States and sworn to obey the mandates of a government waging war upon the United States. It is not necessary for us to hold that the title to this coin was divested from the Bank of Louisiana lawfully by the Confederate government. It is enough to say that this plaintiff cannot institute a suit in a court antagonistic to the United States, before a judge sworn to uphold a government at war, flagrante bello, with the United States, and thereby acquire a right to this coin, or use this remedy to secure such a right. When he sues in a court he must recognize it as legal at the time he commences his action, and all the authorities under which the court is held, and to which it has sworn allegiance, through all its officers, as legal and Merritt vs. The Cotton States Life Insurance Company. valid pro hac vice at least. As to one who seeks its forum, THOMAS M. MERRITT, administrator, plaintiff in error, vs. THE COTTON STATES LIFE INSURANCE COMPANY, defendant in error. (BLECKLEY, Judge, having been of counsel, did not preside in this case.) 1. A consent order was taken during the term, authorizing a motion for a new arose. 3. Where suit was brought by an administrator, proof of his representative character was unnecessary, where no plea of ne unques administrator was filed. 4. An absolute refusal to pay by an insurance company, is a waiver of the sixty days time from proof of death, reserved by the policy, within which to make payment. 5. Where a policy, upon the ten annual premium plan, provided that after two annual payments, the policy should be valid for as many tenths of the amount insured as premiums had been paid, notwithstanding subsequent default, and four payments had been made prior to death: Held, that all the conditions and stipulations embraced in the policy for the 6. If the insured died by his own hand, then the policy is void, unless it be 55 103 57 537 59 665 74 231 55 103 99 225 55 103 e110 133 Expl. 99/225. Merritt vs. The Cotton States Life Insurance Company. 7. The verdict, so far as it covered twenty-five per cent, damages and $1,000 attorney's fee, upon the ground that the refusal of the defendant to pay was in bad faith, had no evidence to support it. New trial. Practice in the Superior Court. Insurance. Jurisdiction. Venue. Administrators and executors. Waiver. Evidence. Insanity. Suicide. Before Judge CLARK. Sumter County. At Chambers, February 5th, 1875. On March 24th, 1874, Thomas H. Merritt, as administrator upon the estate of Wade H. Merritt, deceased, brought complaint against the Cotton States Life Insurance Company, for $10,000 00, alleged to be due on a policy of insurance covering the life of said deceased. The declaration also contained a count for $4,000 00, it being four-tenths of the face of said policy, under a stipulation contained therein, four annual premiums only having been paid. A count for twentyfive per cent. damages, and for $1,000 00 counsel fees, was also added alleging that the payment was in bad faith. The action was brought in the county of Sumter where the defendant had an agent at the time the policy was issued. The principal office of the company was in Bibb county. Relying on these facts, the defendant filed a plea to the jurisdiction. The issue thus formed was submitted to the court without the intervention of a jury. The plea was overruled and the defendant excepted. The defendant further pleaded that the defendant died by his own hand. Also, that if anything was due on the policy, it was $2,734 42, it being four-tenths of the sum insured, with a dividend added, deducting the amount due by deceased to defendant. Other pleas were also filed, not material here. The evidence for the plaintiff made the following case: Wade H. Merritt died on January 20th, 1874. The policy was, in substance, as follows: It bears date the 20th day of December, 1869; is numbered six hundred and seventy-two, and purports to have been made in consideration of representations made in the application therefor, and an annual premium of $576 30 to be paid on or before the 20th day of December, for ten years next succeed Merritt vs. The Cotton States Life Insurance Company. ing the date of the policy, or during its continuance, premiums to be paid by an annual loan of $288 00, and a cash premium (annual) of $288 30, on the 20th day of December, subject to the conditions thereinafter named. The policy agrees to pay, if it shall not be previously terminated, $10,000 00 (the balance of the years' premiums, if any, and all other notes or credits for premiums thereon, and other indebtedness of the insured to the company being first deducted,) to the insured or his executors, administrator or assigns, on the 20th day of December, 1919, or if the insured should die previously thereto, then within sixty days after due proof of his death is received by the company : provided, always, that this policy is issued by this company, and accepted by the insured, on the following express conditions: If the premiums due are not paid as stipulated; if the interest due on one note or credit for premium is not paid annually in advance; if the insured should die by his own hand; if the declarations or any of the statements made in the application for this policy are fraudulent or untrue, then, and in each of these several cases, this policy shall terminate and become void and of no effect, and all premiums paid, and all interest in the funds of the company, shall be forfeited. But if, however, this policy shall be terminated by the nonpayment of premiums and for no other cause, after two years' premiums shall have been paid this policy shall still be valid for as many tenth parts of the sum insured as there shall have been premiums paid. The policy was not to take effect until it was countersigned by George F. Fry, agent at Americus. Fry countersigned 22d day of December, 1869. It was conceded that the insured had paid four annual premiums previous to his death. On February 20th, 1874, the secretary of the defendant wrote to the plaintiff as follows: "Yours of the 17th instant, informing me of the death of your brother, Wade H. Merritt, is at hand. The premium due December 20th, 1873, was not paid, the policy was not in force from that date; even VOL. LV. 8. Merritt vs. The Cotton States Life Insurance Company. though payment had been made, the manner of his death would have rendered it void." Reasonable fees, on the basis of a recovery of $10,000 00 were shown to be $1,000 00; on the basis of a recovery of $4,000 00, $500 00. Here the plaintiff rested his case. The defendant moved for a non-suit on the following grounds: 1st. Because the plaintiff had failed to show that he was the administrator of Wade H. Merritt, deceased. 2d. Because he had failed to show any proof of death, as required by the policy, or refusal to pay, as required by law. 3d. Because the defendant was not liable to suit until the expiration of sixty days from proof of death, whilst this action was brought within thirty-three days after the so-called refusal. The motion was overruled, and the defendant excepted. Much evidence was introduced by the defendant tending to show that the insured died by his own hand. This was replied to by the plaintiff by proof to show the insanity of the insured at the time of his death. The court charged the jury, amongst other things, as follows: 1st. "By the terms of the policy, if Merritt continued to pay the premiums for ten years, he was entitled, at the end of ten years, to a paid up policy for $10,000 00, payable in 1919, or at his death if he should die sooner. This contract of insurance is subject to certain conditions, one of which, among others, is, that if the insured died by his own hand, or, in the language of the Code, committed suicide, then the policy of insurance is void. It is stipulated in the policy that if two premiums are paid the whole policy is not avoided by the non-payment of other premiums, but the insured is entitled to as many tenths of the ten thousand as he has paid annual premiums. In other words, after the payment of two premiums and a failure to pay more, he is entitled to a paid up policy for as many tenths as he had paid premiums. But he |