able in equity by the children, but that the acquisition of a further interest, by the payment of subsequent premiums, was executory, and was not acquired by her, and could not, therefore, be claimed by her beneficiaries. This ruling goes clearly on the ground that, up to the time of the assignment of the policy, and for all which the policy then represented, the children had a vested interest acquired by executed gift.

Mr. Bliss, in his work on Life Insurance, § 317, states it as the general rule "that a policy, and the money to become due under it, belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the person procuring the insurance, by any act of his or hers, by deed or will, to trans-. fer to any other person the interest of the person named." These, including the Wisconsin cases, are some of the leading authorities on this question. Others are cited in the opinion of Cassoday, J., in Foster v. Gile, supra. They are referred to rather for the purpose of showing the state of decision on the subject, than otherwise, for the facts set out in the present bill are somewhat peculiar, and seem to make this case distinguishable, except as some general principles are involved, from any of the decided cases to which I am referred.

Whatever principle of law might be regarded as applicable and controlling if the right of Mrs. Kemna to the first policy in which she was named as beneficiary, or its proceeds, was involved, an important fact in the case is that the complainant surrendered that policy and received from the company a paid-up policy, payable to Mrs. Kemna in 1878. The same was done with reference to the other policies in which his other daughters are named as beneficiaries. This new policy, payable to Mrs. Kemna, was an absolute promise on the part of the company, in consideration of the past payments of premiums, to pay her $1,690. It was not a policy liable to lapse, but it constituted an absolute, fixed liability, and the question is whether, as between the father and the daughter, it was not an executed gift from him which he

could not revoke. I can have no doubt that it was, unless the circumstances under which the act was done can have the effect to create other rights between the parties.

The complainant did all that he could do to make the gift of the policy to his daughter complete and effectual. He paid the premiums while the original policy was running, and procured the paid-up policy to be issued, payable in express terms to his daughter Alma at a specified time, and without any condition or stipulation in the policy reserving a right to change or alter it, so far as the bill shows; and, in the language of some of the cases cited, this was all that could well be done, under the circumstances, so far as the father and child were concerned, to vest in his appointee the entire interest in the policy and all rights thereunder. As between those parties no further ceremony or fact was needed to the perfection of the gift. Sandrum v. Knowles, supra. The gift was voluntary, but it was completely executed, and nothing further remained to be done but to await the period when the insurance company could be called on to make payment. That period was reached, and the complainant then received the proceeds of the insurance, not for himself or in his individual name or right, but as the guardian and representative of his daughter; so that in legal effect the payment was made to her as the beneficiary. This, if it were essential, was the consummative act, completing the gift beyond recall, unless, as before stated, the circumstances of the whole transaction so affected the relations of the parties as to qualify or change what would otherwise be strictly legal rights. Did the circumstances have that effect? I cannot think they did. Mrs. Kemna was not bound by the arrangement made in the alleged "family council," nor by the subsequent agreement which she signed. She was under the disability of infancy, and she could if she would, on attaining her majority, disaffirm and repudiate the agreement. The bill shows that the complainant was unable to continue the payment of premiums on the original policies, and that it was therefore determined that those policies should be surrendered and exchanged

for policies fully paid up; and it may be fairly inferred, from the allegations of the bill, that this was determined upon before any understanding was had that the proceeds of the paid-up policies should ultimately go to Mrs. Franziska Brockhaus. It was then arranged, for reasons stated in the bill, that such proceeds when realized should be received by Mrs. Brockhaus, but for the benefit of all the children. It is true that this transpired before the actual surrender of the original policies, and consequently there was a change of beneficiary, if any was in fact or legal contemplation made, before the paid-up policies were taken. But I can hardly think that the arrangement made in family council should be held to have operated as an assignment of the original policy running to Alma, least of all of the new paid-up policy which was subsequently made to her; and in this connection it is not to be overlooked that, notwithstanding what had previously transpired between the parties, the new policy was in terms made payable to Alma. The alleged change of beneficiary was not, in name at least, carried into that policy. It may, perhaps, be fairly presumed that the complainant, in taking a paid-up policy, relied on Mrs. Kemna's adherence to the understanding with reference to the ultimate appropriation of the proceeds; but I do not think it can be said, upon the present allegations of the bill, that the family arrangement was the substantial consideration which prompted the exchange of the old policies for new paid-up policies. And on the whole, with reference to the circumstances which preceded and which accompanied the surrender of the first policy running to Alma for the paid-up policy, as also with reference to the subsequent writtten agreement, it must, I think, be said that a change of beneficiary could not be made without the legal consent of Mrs. Kemna, and such consent was not given beyond her power of disaffirmance.

It is alleged that the complainant caused himself to be appointed guardian of Mrs. Kemna for the receipt of the insurance moneys, at the instance of the insurance company, and because it required him so to act. But I do not think

this can avail him against the legal consequences of the act, when taken in connection with the legal import and effect of the contracts by which the insurance company obligated itself to make payment.

It is claimed also that, by bringing suit on complainant's bond as guardian, Mrs. Kemna has ratified the action taken at the time of the surrender of the old policy for the paid-up policy, and therefore should not be permitted to make her present assertion of right to the proceeds of the latter policy. But it seems to me that such is not the effect of her proceeding, and that it is rather a disaffirmance of the agreement entered into by her during her minority by which Mrs. Brockhaus was to take the proceeds of the insurance. The assertion of her supposed right to those proceeds could only be made by demand of payment or suit for their recovery, or on the guardian's bond. And, in such case, to say that a resort to the only course open to her for such assertion of her alleged right operates as a ratification of that which she now disavows, seems to me equivalent to a denial of all power to disaffirm. Of course, if it were a directly-alleged fact that the whole inducement for taking the paid-up policy was an actual change of beneficiary, and a transfer of interest to Franziska Brockhaus as such beneficiary, a different phase of the question might be presented; but I do not understand such to be the meaning of the bill.

The court is not oblivious of the objects evidently in view when the family understanding was had in 1876. But I see no escape from the conclusions indicated, when the case is considered, as I think it must be, with reference to the absolute legal rights of the beneficiary named in the paid-up policy.

The demurrer to the bill will, therefore, be sustained.

BANK OF MONTREAL V. THAYER.

(Circuit Court, D. Iowa. May 11, 1881.)

1. FRAUDULENT REPRESENTATIONS-PLEADING.

In an action for false and fraudulent representations, the allegation that such representations were wrongful, false, and fraudulent, is sufficient, where the said representations have been set out with due particularity.

2. SAME-PARTY TO SUIT.

In such action, if the party suing is not the party to whom the false representations were made, it must appear that they were made with the intent that they should be acted upon by the parties, and that they were so acted upon by the plaintiff.

3. SAME-SAME.

It need not appear that the fraudulent representations were made directly and individually to the plaintiff, but it is sufficient if it be shown that he was authorized to act, and did act, upon such representations.

4. SAME-RECEIVER'S CERTIFICATES-PURCHASERS.

The receiver of a railroad executed and placed upon the market certain certificates payable to A., or bearer, which contained, upon their face, certain false representations, intended to deceive whoever might purchase the same. Held, that a bona fide purchaser, before maturity and without notice, relying upon such fraudulent representations, might recover in an action for damages, although such receiver had no purpose to defraud and deceive such specific purchaser when he executed the said certificates.

5. SAME-SAME-SAME.

Held, further, that the fact that the payee, A., participated in the fraud would not relieve the maker from liabilty, nor render it necessary that such payee should be joined in the action as a party defend

ant.

6. SAME-WARRANTIES.

Held, further, that the representations contained in such certificates were not warranties upon which an action could be maintained by the purchaser.-[Ed.

Demurrer to petition.

This is an action to recover damages on the ground of alleged false and fraudulent representations made by the defendant, and the material facts alleged are the following:

(1) That the defendant was on the twenty-second of November, 1875, duly appointed receiver of the property and effects of the Chicago, Clinton & Western Railroad Company, by an order made by the district court of Clinton county, Iowa, in a cause therein pending.