before suggested, that in a case like the present, where the prisoner is in execution upon a conviction, the writ ought not to be issued, or, if issued, the prisoner should at once be remanded, if the court below had jurisdiction of the offence, and did no act beyond the powers conferred upon it. The court will look into the proceedings so far as to determine this question. If it finds that the court below has transcended its powers, it will grant the writ and discharge the prisoner, even after judgment. Ex parte Kearney, 7 Wheat. 38; Ex parte Wells, 18 How. 307; Ex parte Lange, 18 Wall. 163. But if the court had jurisdiction and power to convict and sentence, the writ cannot issue to correct a mere error. We have shown that the court below had power to determine the question before it and that this is so, is further manifest from the language of Chief Justice Marshall in the case of Tobias Watkins, 3 Pet. 203. He there says, "To determine whether the offence charged in the indictment be legally punishable or not, is among the most unquestionable of its [the court's] powers and duties."

But after the thorough investigation which has been given to this subject in previous cases, particularly those of Ex parte Yerger, 8 Wall. 85, and Ex parte Lange, 18 id. 163, it is unnecessary to pursue the subject further at this time.

The last-mentioned case is confidently relied on as a precedent for allowing the writ in this case. But the two are totally unlike. In Ex parte Lange we proceeded on the ground, that, when the court rendered its second judgment, the case was entirely out of its hands. It was functus officio in regard to it. The judgment first rendered had been executed and satisfied. The subsequent proceedings were, therefore, according to our view, void.

But, in the case before us, the District Court had plenary jurisdiction, both of the person, the place, the cause, and every thing about it. To review the decision of that court by means of the writ of habeas corpus would be to convert that writ into a mere writ of error, and to assume an appellate power which has never been conferred upon this court.

Since the cause was submitted to the court, the learned counsel for the petitioner has called its attention to the case

of Booth and Rycroft, 3 Wis. 157, as a case precisely in point in favor of granting the writ. It had probably escaped the recollection of counsel that this very case was reversed by this court in Ableman v. Booth, 21 How. 506, in which Chief Justice Taney delivered one of his most elaborate and able opinions.

As the entire record has been brought before us by the petition, and we are clear as to our want of authority to discharge the prisoner, the application for the writ is Denied.

NEW YORK LIFE INSURANCE COMPANY v. STATHAM ET AL.
SAME v. SEYMS.

MANHATTAN LIFE INSURANCE COMPANY v. BUCK,
EXECUTOR.

1. A policy of life assurance 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, by its non-performance, the policy void.

2. The time of payment in such a policy is material, and of the essence of the contract; and a failure to pay involves an absolute forfeiture, which cannot be relieved against in equity.

8. If a 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.

4. 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 a suit in equity.

5. The doctrine of revival of contracts, suspended during the war, is 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.

6. 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 a war (since none but the sick and dying would apply), it would be unjust to compel a revival against the company.

THE first of these cases is here on appeal from, and the second and third on writs of error to, the Circuit Court of the United States for the Southern District of Mississippi.

The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the defendant (now appellant) in 1851, on the life of Dr. A. D. Statham, of Mississippi, from the proceeds of certain funds belonging to the defendant attached in the hands of its agent at Jackson, in that State. It appears from the statements of the bill that the annual premiums accruing on the policy were all regularly paid, until the 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 defendant a corporation of New York. Dr. Statham died in July, 1862.

The second case is an action at law against the same defendant to recover the amount of a policy issued in 1859 on the life of Henry S. Seyms, the husband of the plaintiff. In this case, also, the premiums 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. He died in May, 1862.

The third case is a similar action against the Manhattan Life Insurance Company of New York, to recover the amount of a policy issued by it in 1858, on the life of C. L. Buck, of Vicksburg, Miss.; the circumstances being substantially the same as in the other cases.

Each policy is in the usual form of such an instrument, declaring that the company, in consideration of a certain specified sum to it 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. Each contained various conditions, upon the breach of which it was 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 pay

ment 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 of the actions; and the plaintiffs respectively relied on the existence of the war as an excuse, offering to deduct the premiums in arrear from the amounts of the policies.

The decree and judgments below were against the defendants.

Mr. Matt. H. Carpenter and Mr. James A. Garfield for the appellant in the first case, and for the plaintiff in error in the second. The third case was submitted by Mr. Alfred Pitman for the plaintiff in error.*

The rights involved depend upon the contract. The court will not interpolate new conditions, but hold the parties to their agreement. Dermott v. Jones, 2 Wall. 1; Jeffreys v. Life Ins. Co., 22 id. 47. It consists of two parts, and is divisible. The payment of the first premium accomplished two things: First, it effected an insurance upon the life of the applicant for one year, which is, so far as he is concerned, an executed contract. Should he die within that specific period, the company absolutely covenants to pay the amount of the policy. Second, it purchased the option of his making the stipulated payments, and thus continuing the insurance from year to year, and is in this respect an executory contract. Worthington v. Charter Oak Life Ins. Co., 41 Conn. 372. The provisions requiring payment of the agreed premium for each subsequent year are an essential part of the substance of the contract, by which the duration of the risk is limited and defined, and are not a condition in the nature of a penalty. Dean v. Nelson, 10 Wall.

* The arguments submitted by the counsel separately are presented as a whole, no attempt being made to assign to each what he chiefly or alone may have said. The point as to the surrender value of the policy was, however made by Mr. Garfield, in his concluding argument for the companies.

158. They declare that the policy, if the requisite premium is not paid, expires by its own limitation; but if the court considers that they create a condition, then we insist that it is a condition precedent to the renewal and extension of the risk. Until its performance, no liability is incurred by the underwriter, and no right vests in the policy-holder. Want et al. v. Blunt et al., 12 East, 183; Phoenix Life Ins. Co. v. Sheridan, 8 Ho. of Lds. Cas. 745; Law R. 9 Ch. 502; id. 9 Eq. 705; id. 17 Eq. 316-320. An impossibility to perform it does not prevent the loss which results therefrom; nor will a court of equity relieve against the consequences of a breach, although such impossibility be occasioned by law. Salk. 231, 233; 3 Vern. 338, 339, 344; 1 id. 223; 1 Bro. Ch. 168; Earl of Shrewsbury v. Scott, 6 C. B. N. s. 1; Barker v. Hodgson, 3 M. & S. 267.

From the beginning of the war until the President's proclamation of Aug. 6, 1861, the assured, who lived within the rebel States, had full opportunity and permission to withdraw to loyal territory. His duty in such a case is clearly indicated in Mrs. Alexander's Cotton, 2 Wall. 421, and The William Bagley, 5 id. 377. He elected to remain within the jurisdiction of the enemy. The result of his choice cannot be pleaded as an excuse for non-performance; nor can relief be claimed on the ground insisted upon by the other side, that, when the annual premium became due, its payment was rendered unlawful by the existence of war.

The contract, under the circumstances, and by his own voluntary act, was, if for no other reason, made void by the war; because its continued existence depended upon the performance of certain conditions by a person who remained within the Confederate lines, when all intercourse was prohibited by law. Hanger v. Abbott, 6 Wall. 536; Duer on Insurance, 473, note 2; Thompson v. United States, 15 Wall. 400. As insurance of the property or lives of enemies violates the laws of war, all such continuing policies are annulled when hostilities commence between the countries where the insurance company and the assured respectively reside. The war, ipso facto, dissolved the contracts sued on. Furtado v. Rogers, 3 Bos. & Pull. 191. There can be no well-founded distinction between a promise