After maturity of the last note defendants, on 5th November, 1890, wrote the maker demanding payment ofit.
This letter reached St. Catharines on the day which Robert McGeachie died and was delivered to his brother on the same day. The local agent of the company was at once communicated with and asked if he would accept the money, but refused to do so. On the following Monday, four days later, the amount was formally tendered to the defendants at their head office but was refused.
At the trial of the action at St. Catharines in May, 1891, before the Honourable Mr. Justice Street without a jury, judgment was reserved, and afterwards judgment was given in the defendants' favour.
From this decision the plaintiff appealed to the Queen's Bench Divisional Court, and by the judgment of that court, pronounced on the 27th February, 1892, the plaintiff recovered the amount of her claim in this action. Thereupon the defendants appealed to the Court of Appeal for Ontario, and by the judgmentof that court pronounced on the 17th January, 1893, the action was dismissed. The plaintiff appealed from that decision to the Supreme Court of Canada.
The defendant company relied on the following condition in the policy.
" If any premium, note, cheque, or other obligation given on account of a premium be not paid when due * * * * this policy shall be void, and all payments made upon it shall be forfeited to the Company." Aylesioorth Q.C. for the appellant. Credit was intended to be given for the premium and under the circumstances the non-payment of the note did not avoid the