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sewer, and negligence in not removing the obstruction before the injury happened.
The second point is undoubtedly one of more intrinsic difficulty. The defendants were not bound by law to construct the sewer, and herein the case differs entirely from that of an injury caused by a defect in a highway. They were, however, authorized to construct it, and voluntarily undertook that service. The plaintiff's cellar was drained into the sewer “of right,” as the case finds; so there is no pretence that her legal rights had been forfeited or impaired by her own act. It does not appear whether this right to drain her cellar into the common sewer was of such a character that she could compel the defendants to keep up the sewer for that purpose, nor whether the right was obtained by the payment of a reasonable sum to the city, as provided by Gen. Stats., ch 44, sec. 9; but, in the view I take of the case, neither of these things is material. It is material that she did not, without right, open her drain into the sewer.
As to the application of Eastman v. Meredith, it appears to me the cases are not parallel. There it was held, that where a building, erected by a town for a town house, was so imperfectly constructed that the flooring gave way at the annual town meeting, and an inhabitant and legal voter, in attendance on the meeting, received thereby a bodily injury, he could not maintain an action against the town to recover damages for the injury.
The decision was placed entirely on the peculiar nature of the obligation of a town to provide a safe place in which to hold town meetings. That duty is not imposed by statute, nor by contract. It is not an enterprise undertaken by the town for gain. It is at most a public or political duty, and the right of the citizen that it shall be properly performed is a public or political right.
The court say: “We regard the present case as one of new impression. We have heard of no earlier attempt in this state to maintain an action against a town for a private injury suffered by a citizen of the town from neglect of the town to provide him with safe and suitable means of exercising his public rights, and we are not informed of any case in which such an action has been maintained in any other state.”
Nearly the whole of the elaborate opinion of the court is occupied VOL. XXIV.-91
with showing the distinctions between that case and cases bearing a very strong resemblance to the present.
The question, whether municipal corporations in this country and corporations in England having some of the powers and charged with some of the duties usually exercised by municipal corporations here, are liable for negligence, carelessness, or misfeasance, both in the performance of their legal duties and the doing of voluntary acts within the scope of their authority, has been much considered by the courts on both sides of the Atlantic; and the decided weight of modern authority is, that in this respect they stand like private individuals or corporations. The English cases on this subject are very thoroughly and carefully reviewed by BLACKBURN, J., in Mersey Docks Trustees v. Gibbs, Law Rep. 1 H. L. 93. That was an action against the Mersey Docks Board of Trustees, a corporation created by Act of Parliament, with power to build docks at Liverpool and secure dock rates, which rates they were bound by the statute to apply wholly to the maintenance of the docks and the payment of a very large debt contracted in making them. The plaintiff's vessel, while entering one of the docks, ran upon a bank of mud which had been suffered to accumulate at the entrance of the dock, and was damaged. It was held that the principle on which a private person, or a company, is liable for damages occasioned by the neglect of servants, applies to a corporation which has been entrusted by statute to perform certain works, and to receive tolls for the use of those works, although those tolls, unlike the tolls received by the private person or the company, are not applicable to the use of the individual corporators, or to that of the corporation, but are devoted to the maintenance of the works, and, in case of any surplus existing, the tolls themselves are to be proportionately diminished. This case, decided in 1866, shows most clearly the state of the law in England on this point at the present time, and is very much in point.
There was evidence here from which the referee might find want of due care in the construction of the sewer, and that the damage happened by reason thereof.
In The Mayor, &c., of New York v. Bailey, 2 Den. 433, it was held that a municipal corporation is responsible for the negligence or unskilfulness of its agents and servants, when employed in the construction of a work for the benefit of the city or town, subject to the government of such corporation. The action was for injury occasioned by the negligent and unskilful construction of a dam on the Croton river, being part of the public works built pursuant to a statute for supplying the city with pure and wholesome water.
In Rochester White Lead Co. v. Rochester, 3 N. Y. 463, the corporation of the city of Rochester, having power to cause common sewers, drains, &c., to be made in any part of the city, directed a culvert to be built, for the purpose of conducting the water of a natural stream which had previously been the outlet through which the surface water of a portion of the city had been carried off. A freshet having occurred, the culvert, in consequence of its want of capacity and the unskilfulness of its construction, failed to discharge the waters, so that they were set .back upon the factory of the plaintiffs, and injured their property situated therein. Held, that the city corporation was liable for the damages. And the doctrine was laid down, that an ordinance of a city corporation, directing the construction of a work within the general scope of its powers, is a judicial act for which the corporation is not responsible; but the prosecution of the work is ministerial in its character, and the corporation must therefore see that it is done in a safe and skilful manner.
There was also, in the present case, as already suggested, evidence from which the referee might find negligence in not removing the obstruction from the sewer before the injury occurred; and my opinion is, that this also furnishes legal ground upon which the award of the referee should be sustained.
· The case of The Mayor, &c., of New York v. Furze, 3 Hill 612, is in point. It was there held that the corporation of the city of New York are bound to repair the sewers, &c., constructed by them; and if an inhabitant be injured by reason of their neglect in this particular, he may maintain an action against them for his damages.
Another strong case of the same description is Child v. Boston, 4 Allen 41, where the city was held responsible for negligently suffering the common sewers to occasion a nuisance in the estates of the citizens whose private drains enter into them. A large number of cases bearing in the same direction may be found in Shearman & Redfield on Negligence, sects. 120, 144, 151, 579.
The point as to want of due care and skill in the original con
struction was decided by this court in the recent case of Gilman v. Laconia, 55 N. H. 130.
I think the defendants were bound to the exercise of ordinary care and skill, both in constructing and maintaining the sewer, and that for any injury which happens to the estate of a citizen from a failure in that respect, they are responsible.
Judgment on the report for the plaintiff.
Supreme Court of the United States.
NEW YORK LIFE INS. CO. v. WILLIAM C. STATHAM ET AL.
THE SAME v. CHARLOTTE SEYMS.
A policy of life insurance which stipulates for the payment of an annual premium by the assured, with a condition to be void on non-payment, is not an insurance from year to year, like a common fire policy ; but the premiums constitute an annuity, the whole of which is the consideration for the entire assurance for life ; and the condition is a condition subsequent, making void the policy by its non-performance.
But the time of payment in such policies is material, and of the essence of the contract; and failure to pay involves an absolute forfeiture, which cannot be relieved against in equity.
If failure to pay the annual premium be caused by the intervention of war between the territories in which the insurance company and the assured respectively reside, which makes it unlawful for them to hold intercourse, the policy is nevertheless forfeited if the company insist on the condition ; but in such case the assured is entitled to the equitable value of the policy arising from the premiums actually paid.
This equitable value is the difference between the cost of a new policy and the present value of the premiums yet to be paid on the forfeited policy when the forfeiture occurred, and may be recovered in an action at law or suit in equity.
The doctrine of revival of contracts, suspended during the war, is one based on considerations of equity and justice, and cannot be invoked to revive a contract which it would be unjust or inequitable to revive-as where time is of the essence of the contract, or the parties cannot be made equal.
The average rate of mortality is the fundamental basis of life assurance, and as this is subverted by giving to the assured the option to revive their policies or not after they have been suspended by war (since none but the sick and dying would apply), it would be unjust to compel a revival against the company.
On appeal and in error from the Circuit Court of the United States for the Southern District of Mississippi.
The first of these cases was a bill in equity filed to recover the amount of a policy of life assurance, granted by the defendants (now
plaintiffs in error) in 1851, on the life of Dr. A. D. Statham, of Mississippi, from the proceeds of certain funds belonging to the defendants attached in the hands of their agent at Jackson, in that state. It appeared from the statements of the bill that the annual premiums accruing on the policy were all regularly paid until tho breaking out of the late civil war; but that, in consequence of that event, the premium due on the 8th of December 1861 was not paid; the parties assured being residents of Mississippi and the defendants a corporation of New York. Dr. Statham died in July 1862.
The second case was an action at law brought in the same court against the same defendants to recover the amount of a policy issued in 1859 on the life of one Henry S. Seyms, the husband of the plaintiff. In this case also the premiuus had been paid until the breaking out of the war, when by reason thereof they ceased to be paid, the plaintiff and her husband being residents of Mississippi. Seyms died in May 1862.
The third case was a similar action at law brought in the same court against the Manhattan Life Insurance Company of New York to recover the amount of a policy issued by them in 1858 on the life of C. L. Buck, of Vicksburg, Mississippi ; the circumstances being substantially the same as in the other cases.
The policies in all the cases were in the usual form of such instruments, declaring that the company, in consideration of a certain specified sum to them in hand paid by the assured, and of an annual premium of the same amount to be paid on the same day and month in every year during the continuance of the policy, did assure the life of the party named, in a specified amount, for the term of his natural life. The policies contained various conditions upon the breach of which they were to be null and void ; and amongst others the following: “ that in case the said [assured] shall not pay the said premium on or before the several days herein before mentioned for the payment thereof, then, and in every such case, the said company shall not be liable to the payment of the sum insured, or in any part thereof, and this policy shall cease and determine.” The Manhattan policy contained the additional provision, that in every case where the policy should cease or become null and void, all previous payments made thereon should be forfeited to the company.
The non-payment of the premiums in arrear was set up in bar