Page:Federal Reporter, 1st Series, Volume 10.djvu/366

354 FEDERAL EBPOBTEB. �pliance with the stipulation requiring proofs, that would have been for the jury. In all the cases where courts have held that tiie suffi- ciencyof preliminary proofs must go to the jurytherehas been either the question of defective ones having been rendered sufBcient ones because of waiver, or because of destruction of books or other inabil- ity to f arnish proper proofs from some cause beyond the control of the assured. In those cases the question reaches out to matters extrinsic to the papers themselves, claimed as constituting proofs, and the question of sufficiency is for the jury. But this case finds neither evidence tending to establish waiver, nor destruction of books nor other cause of inability. It presents simply the question whether, intrinsically judged, in and of themselves, the papers submitted con- stituted proofs. The decisions of the supreme court of the United States and of the supreme courts of the states have with well nigh unanimity defined with exactitude the principle which separates ques- tions of law from questions of fact. The question which presents the closest analogy to the one before the court is, what constitutes due diligence in giving notice to an indorser of a promissory note of non- payment ? and a long Une of concurrent decisions bas established the laiw as being that when the facts are undisputed what is due' diligence is a question for the court. In the cases collated — 1 Brightly's Dig. verbo, "Jury 7," (a,) No. 102, p. 511 — it is also held that when the facts are admitted or established, the question as to what is a reasonable time for the production of preliminary proofs is for the court. Colutn- bia Ins. Co. v. Lawrence, 10 Pet. 507-513. �In the cases where, as here, nothing was before the court except the measurement of the papers profiered as preliminary proofs by the requirements of the contract — no extrinsic question — the court bas uniformly determined as to the sufficiency of proofs. Justice Story did this in Catlin v. Springfield Ins. Co. 1 Sumn. 437; Lycoming Ins. Co. V. Updegraff, 4 Wright, (Pa.) 311; Beatty v. Lycoming Ins. Co. 66 Pa. St. 17; Wellcome v. People's Equitable Fire Ins. Co. H Gray, (Mass.) 480; Norton v. Rensselaer e S. Ins. Co. 7 Cow. 645; and Kimball v. Hamilton Fire Ins. Co. supra; 8 Bos. 503. As to the question whether the 60 days had elapsed since the service of the last set of papers, and before the institution of this suit, see ruling of Judge Duer. 7 Cow. 647. From an examination of the cases eited, and of all the cases I could consult, I am of the opinion that the question here presented is for the court to respond to, and the court declares that there had not been preliminary proofs fumished ��� �