Assuming that without special legislation the | Ordinance of 1787. is used in a broader sense than Fox River would not be part of the " public admiralty jurisdiction; for while it includes navigable waters of the United States," under navigable waters, it also includes carrying places the decisions of this court in The Daniel Ball, between the same, and admiralty jurisdiction 10 Wall., 557 (77 U. S., XIX., 999), and The has not yet extended to land as well as naviMontello 11 Wall., 411 (78 U. S., XX., 191), it gable water. is, nevertheless, contended that the above special legislation for the protection of the river and portages in the old Northwest Territory and Territory of Wisconsin, makes it a navigable river within the Act on which this information is founded. Messrs. J. H. Hauser and N. C. Griffin, for appellees: Is Fox River a navigable water of the United States? While the United States did grant land to aid in the improvement of said river, yet the improvement was largely made by private energy and sacrifice, and the Government reserved no rights except as above stated. If the private enterprise should make waters navigable which were not before navigable, and capable of carrying vessels which are of sufficient capacity to come within the jurisdiction of the Federal Courts, which before were not navigable by any of the ordinary modes of commerce, will the United States then come in and take jurisdiction and control, especially where this improvement is wholly within the State, and subject to state law and state taxation? This court will be slow to make such a radical change and to extend the jurisdiction of the Federal Courts, that, by the same reasoning, the General Government would take control of every trade, manufacture and enterprise throughout the country. Mr. Justice Davis delivered the opinion of the court: Fox River is known as the upper and lower Fox. The upper Fox runs from above Portage City to Oshkosh, into Lake Winnebago. The lower Fox forms the outlet of Lake Winnebago and empties into Green Bay. There is no outlet for the upper Fox except the lower Fox. The testimony shows that the lower Fox was not a navigable stream prior to 1846. It had numerous rapids and abrupt falls. At Grand Chute there was a solid rock, making a fall of two and one half feet perpendicular. No commerce could be carried up the river in the ordinary and customary manner, and under no circumstances could it be claimed to be a public navigable stream prior to 1846. By an Act The question for decision in this case is, of Congress, approved August 6, 1846, entitled whether the Fox River in Wisconsin is a navi"An Act to Grant a Certain Quantity of Land gable water of the United States. When the to Aid in the Improvement of the Fox and case was here before, 11 Wall., 414 [78 U. S., Wisconsin Rivers, Connecting the Same by a XX., 192]. the libel was defective and the eviCanal, in the Territory of Wisconsin," exclu- dence insufficient to determine the question, and sive control was granted to the State of Wiscon- it was remanded for further proceedings, to ensin, only reserving that it should be a public able the parties by new allegations and evidence highway for the use of the United States. The to present the exact character of Fox River as State of Wisconsin, by an Act of the Leg- a navigable stream. This has been done, and islature, approved July 6, 1853, entitled an there is, therefore, nothing in the way of a cor"Act to Incorporate an Association for the Im-rect solution of the inquiry. provement of the Fox and Wisconsin Rivers," ceded and granted all the rights and privileges which the State had attained from the United States, to this company. The upper Fox has no navigable connections with the sea or lake, but which are made so by artificial or private means. Boats cannot pass up or down the river without passing through the canal and locks and paying toll. If the Fox River is a navigable River of the United States, it is impossible to conceive of any body of water that is not or might not become such navigable water. Does the subsequent legislation of Congress show that the water of the Fox River was included in the Ordinance of 1787? By an Act approved August 6, 1846, it granted exclusive control of Fox River to the State of Wisconsin, reserving only the free use of the river for the Government of the United States to carry its mails, property or persons in its employ. Subsequently the State granted to companies the right to improve said river and to demand toll for all boats navigating the same and property and persons carried on said river, except property, etc., of the United States. By the Ordinance of 1787, applied to Fox River then, all subsequent legislation of Congress and the State of Wisconsin in regard to said river is a direct violation of the state ordinance. Again: "common highway," as used in the This court held in the case of The Daniel Ball, 10 Wall., 557 [77 U. S., XIX., 999], that those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used or are susceptible of being used in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And a river is a navigable water of the United States when it forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the customary modes in which such commerce is conducted by water. The Montello, 11 Wall., 411 [78 U. S., XX., 191]. Apply these tests to the case in hand, and we think. the question must be answered in the affirmative. The Fox River has its source near Portage City, Wisconsin, and flows, in a northeastly direction, through Lake Winnebago into Green Bay, and thence into Lake Michigan, and by means of a short canal of a mile and a half it is connected at Portage City with the Wisconsin River, which empties into the Mississippi. From its source to Oshkosh the river is frequently spoken of as the "Upper Fox." From Lake Winnebago to Green Bay it is called the "Lower Fox." There are several rapids and falls in the river, but the obstructions caused by them have steam or wind. And, independently of the been removed by artificial navigation, so that Ordinance of 1787, declaring the "navigable there is now, and has been for several years, waters "leading into the Mississippi and St. uninterrupted water communication for steam Lawrence to be “common highways," the true vessels of considerable capacity from the Mis-test of the navigability of a stream does not desissippi to Lake Michigan, and thence to the St.pend on the mode by which commerce is, or Lawrence, through the Wisconsin and Fox may be, conducted, nor the difficulties attendRivers; and steamboats have passed and are constantly passing over these rivers, with passengers and freight destined to points and places outside of the State of Wisconsin. It is said, however, that although the Fox River may now be considered a highway for commerce, over which trade and travel are, or may be, conducted in the ordinary modes of trade and travel on water, it was not so in its natural state and, therefore, is not a navigable water of the United States within the purview of the decisions referred to. ing navigation. If this were so, the public would be deprived of the use of many of the large rivers of the country over which rafts of lumber of great value are constantly taken to market. It would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the exIt is true, without the improvements by locks, tent and manner of that use. If it be capable canals and dams, Fox River, through its en- in its natural state of being used for purposes of tire length, could not be navigated by steam-commerce, no matter in what mode the comboats or sail vessels, but it is equally true that merce may be conducted, it is navigable in fact, it formed, in connection with the Wisconsin, and becomes in law a public river or highway. one of the earliest and most important channels Vessels of any kind that can float upon the of communication between the Upper Missis- water, whether propelled by animal power, by ippi and the lakes. It was this route which Mar the wind, or by the agency of steam, are, or may quette and Joliet took in 1673 on their voyage become, the mode by which a vast commerce to discover the Mississippi; and the immense fur can be conducted, and it would be a mischiev trade of the Northwest was carried over it for ous rule that would exclude either in determinmore than a century. Parkman's Discovery of ing the navigability of a river. It is not, howthe Great West, 52 et seq.; 3 Bancroft, Hist. U. ever, as Chief Justice Shaw said (Rowe v. Bridge S., 156, 157. Smith, in his History of Wis- Co., 21 Pick.,344), "Every small creek in which consin (Vol. 1; page 81), says: "At this time a fishing skiff or gunning canoe can be made to (1718) the three great avenues from the St. Law- float at high water, which is deemed navigable; rence to the Mississippi were, one by the way but, in order to give it the character of a naviof the Fox and Wisconsin Rivers, one by gable stream, it must be generally and commonly way of Chicago, and one by the way of the useful to some purpose of trade or agriculture." Miami of the Lakes, when, after crossing the portage of three leagues over the summit level, a shallow stream led into the Wabash and Ohio." It is, therefore, apparent that it was one of the highways referred to in the Ordinance of 1787, and, indeed, among the most favored on account of the short portage between the two rivers. In more modern times, and since the settlement of the country, and before the improvements resulting in an unbroken navi gation were undertaken, a large interstate commerce has been successfully carried on through this channel. This was done by means of Durham boats, which were vessels from seventy to one hundred feet in length, with twelve feet beam, and drew when loaded, two to two and one half feet of water. These boats, propelled by animal power, were able to navigate the entire length of Fox River with the aid of a few portages, and would readily carry a very considerable tonnage. In process of time, as Wisconsin advanced in wealth and population, and had a variety of products to exchange for the commodities of sister States and foreign nations, Durham boats were found to be inadequate to the wants of the country, and Congress was appealed to for aid to improve the navigation of the river, so that steam power could be used. This aid was granted; and since the river has improved, commerce is carried over it in one of the usual ways in which commerce is conducted on the water at the present day. But commerce is conducted on the water, even at the present day, through other instrumentalities than boats propelled by The learned judge of the court below rested his decision against the navigability of the Fox River below the De Pere Rapids chiefly on the ground that there were, before the river was im proved, obstructions to an unbroken navigation. This is true, and these obstructions rendered the navigation difficult, and prevented the adop tion of the modern agencies by which com merce is conducted. But, with these difficulties in the way, commerce was successfully carried on, for it is in proof that the products of other States and countries were taken up the river in its natural state from Green Bay to Fort Winnebago, and return cargoes of lead and furs obtained. And the customary means by which this was done, was Durham boats. As early as May, 1838, a regular line of these boats were advertised to run from Green Bay to the Wisconsin portage. Doty v. Strong, 1 Pin. (Wis.), 316. But there were difficulties in the way of rapid navigation even with Durham boats, and these difficulties are recognized in the Ordinance of 1787, for not only were the "navigable waters" declared free, but also the "carrying places" between them, that is, places where boats must be partially or wholly unloaded and their cargoes carried on land to a greater or less distance. Apart from this, however, the rule laid down by the district judge as a test of navigability cannot be adopted, for it would exclude many of the great rivers of the country which were so interrupted by rapids as to require artificial means to enable them to be navigated without break. Indeed, there are but few of our fresh water rivers which did not The views that we have presented on this subject receive support from the courts of this country that have had occasion to discuss the question of what is a navigable stream. originally present serious obstructions to an un- | the navigation improved, and the canal coninterrupted navigation. In some cases, like the structed. These objects were, however, accomFox River, they may be so great while they last plished by a private corporation chartered for as to prevent the use of the best instrumentali- the purpose, which was allowed to charge tolls ties for carrying on commerce, but the vital and as a source of profit. The exaction of these essential point is whether the natural navigation tolls created dissatisfaction outside of the State, of the river is such that it affords a channel for and Congress, in 1870, in response to memorials useful commerce. If this be so, the river is nav- on the subject of the importance of these rivers igable in fact, although its navigation may be as a channel of commerce between the States, encompassed with difficulties by reason of nat- passed an Act authorizing the General Governural barriers, such as rapids and sand-bars. ment to purchase the property, and after it was re-imbursed for advances, to reduce the tolls to the lowest point which should be ascertained to be sufficient to operate the works and keep them in repair. 16 Stat. at L., 189. Although this Moore v. Sanborne, 2 Mich., 519; Brown v. legislation was not needed to establish the navChadbourne, 31 Me., 1; People v. Canal Apigability of these rivers, it shows the estimate praisers, 33 N. Y., 461; Morgan v. King, 35 Ń. Y.. 459; Flanagan v. Philadelphia, 42 Pa. St., 219; Monongahela Bridge Co. v. Kirk, 46 Pa. St., 112: Cox v. State, 3 Blackf., 193; Hogg v. Zanesville Can. Co., 5 Ohio, 410; Hickok v. Hine, 23 Ohio St., 527; Jolly v. Terre Haute Bridge Co.,6 McLean, 237; Rowe v. Bridge Co., 21 Pick.. 346; Ill. Packet Co. v. Peoria Bridge Co., 38 Ill., 467; Harrington v. Edwards, 17 Wis., 586. From what has been said, it follows that Fox River is within the rule prescribed by this court in order to determine whether a river is a navigable water of the United States. It has always been navigable in fact; and not only capable of use, but actually used as a highway for commerce, in the only mode in which commerce could be conducted, before the navigation of the river was improved. Since this was done, THE NEW ENGLAND MUTUAL MARINE put by Congress upon them as a medium of coinmunication between the lakes and the Upper Mississippi. It results from these views that steamboats navigating the waters of the Fox River are subject to government regulation. Decree reversed, and cause remanded for further proceedings, in conformity with this opinion. Cited 8 Ben., 157. GEORGE HEARNE, Appt., v. INSURANCE COMPANY. (See S. C., 20 Wall., 488-494.) 1. Where a vessel was insured to port in Cuba, the valuable trade prosecuted on the river, by the agency of steam, has become of national importance. And emptying, as it does, into Green Bay, it forms a continued highway for inter- Marine insurance--reformation of policy-usage. state commerce. The products of other States and foreign countries, which arrived at Green Bay for points in the interior, were formerly sent forward in Durham boats, and since the completion of the improvements on the river these products are reshipped in a small class of steamboats. It would be strange, indeed, if this difference in the modes of conducting commerce, both of which, at the times they were employed, were adapted to the necessities of navigation, should operate a change upon the national character of the stream. Before the Union was formed, and while the French were in possession of the territory, the Wisconsin and Fox Rivers constituted about the only route of trade and travel between the Upper Mississippi and the great lakes. And since the territory belonged to us, this route has been regarded of national importance. To preserve the national character of all the rivers leading into the Mississippi and St. Lawrence, and to prevent a monopoly of their waters, was the purpose of the Ordinance of 1787, declaring them to be free to the public; and so important was the provision of this ordinance deemed by Congress that it was imposed on Wisconsin as a condition of admission into the Union. Congress, also, when the State was admitted, made to it a grant of lands, in order that the Fox and Wisconsin might be united by a canal, their navigation improved, and the rivers made in fact, what nature meant they should be, a great avenue for trade between the Mississippi and Lake Michigan. The grant was accepted, and thence to port of advice and discharge in 2. Usage is never received to contradict what is plain in a written contract, nor will this court, if it declines to reform the contract, decree the return of the premium. 3. Where the case is one of mere deviation, the law annuls the contract as to the future, and forin such case follows the law. feits the premium to the underwriter, and equity [No. 51.] Argued Nov. 3, 4, 1874. Decided Nov. 23, 1874. APPEAL from the Circuit Court of the Unit ed States for the District of Massachusetts. The bill in this case was filed in the court below by the appellant, for the reformation of a certain contract of insurance. A decree of dismissal having been entered, he took an appeal to this court. The case is fully stated by the court. Messrs. B. R. Curtis and Walter Curtis, for appellant: In his letter to the defendants, the appellant described the voyage for which he wished in NOTE.-Marine insurance, deviation. See note to Columbian Ins. Co. v. Catlett, 25 U. S. (12 Wheat.),383. of contracts. See note to Adams v. Otterbach, 56 Usage and custom, admissibility of in construction U. S. (15 How.), 539. surance, but did not undertake to say how the policy should be expressed. He had a right to suppose that the defendant would carefully read his letter, and notice that what was described was a voyage to and at an island and thence to Europe, and not merely a voyage to a port in an island; and also to suppose it to be acquainted with the usages of the carrying trade between Liverpool and Cuba, and with the manner in which charters in that trade are usually drawn. Had it actually possessed this knowledge and exercised a proper degree of care and attention, it would have made the policy what we now ask that it should be made. Instead of this, while it accepted the trust imposed upon it by the appellant, and undertook to give him a policy which should cover the risk he had described in his letter, it actually made one of a very different character, and one which he had never requested it to make, and sent it to him as and for the policy he had requested. That there might be no mistake as to what it had intended to do, it then wrote to him expressly that it had entered the insurance as requested, stating the technical form in which it had described the risk in the policy. This he was justified in considering and did actually consider, as a representation on its part that the terms employed were the proper ones in which to express what he had asked for, and he received the policy and paid the premium in the full belief that the representation was correct, and that his charter was fully insured in accordance with his application. This mistake on his part then was caused, primarily, by the carelessness of the Company and its ignorance of facts, which, as an underwriter, it was bound to know; and second, by its express mis representation as to what was the legal effect of the policy issued. Whether this misrepresentation was or was not made with fraudulent intent, is immaterial If made with fraudulent intent, the appellant is clearly entitled to the relief asked for. The parties did not stand upon an equality. Underwriters, from the very nature of their business, are presumed not only to be acquainted with the course of the trade which they insure, but to know accurately the meaning of the words and phrases used in the business of insurance, and the proper terms in which to express any particular risk presented to them. No such knowledge is to be presumed on the part of the insured. Mr. Henry C. Hutchins, for appellee: The fact that the defendant's President in his letter stated that he had done as requested, makes no difference, because he states precisely what he had done. If he had misunderstood the appellant's application, the appellant was informed precisely how he did understand it, and what he had done in pursuance of it. The proof is absolute of what the mind of the defendant was; and if the mind of the appellant was not the same, then their minds never met, and no contract was made. The acceptance of the policy by the appellant without objection, and holding it two years and then bringing an action at law upon it, amount to a ratification of the policy as made, and a waiver of any right to have it altered or reformed. | Washburn v. Great Western Ins. Co., 114 Mass., 175. Mr. Justice Swayne delivered the opinion of the court: This is an appeal in equity from the decree of the Circuit Court of the United States for the District of Massachusetts. The bill was filed by the appellant, to reform a contract of insurance. He claims that the policy as made out does not conform to the agreement of the parties; supplementing that agreement with the usage or custom, which he insists entered into and formed a part of it. On the 7th of May, 1866, he made his application by letter to the Company for insurance. He said: The bark Maria Henry is chartered to go from Liverpool to Cuba and load for Europe, via Falmouth, for orders where to discharge. Please insure $5,000 on this charter, valued at $16,000, provided you will not charge over four per cent. premium." On the 9th of that month, the Company, through its President, replied: "Your favor of the 7th is at hand. As requested we have entered $5,000on charter of bark Maria Henry, Liverpool to port in Cuba, and thence to port of advice, and discharge in Europe at four per cent." The policy was made out on the same day. and described the voyage as follows: “At and from Liverpool, to port in Cuba, and at and thence to port of advice and discharge in Europe." Thereafter the policy was delivered to the assured and received without objection. The vessel was loaded with coal at Liverpool, and proceeded thence to St. Iago de Cuba. There she discharged her outward cargo. She went thence to Manzanillo, another pori in Cuba, where she took on board a cargo of native wood. On the 13th of September, 1866, she sailed thence for Europe, intending to go by Falmouth for orders. Upon the 18th of that month, on her homeward voyage, she was lost by perils of the sea. Due notice of the loss was given, and it is admitted to have occurred as alleged in the bill. The Company refused to pay, upon the ground that the voyage from St. Iago de Cuba to Manzanillo was a deviation from the voyage described in the policy, and, therefore, put an end to the liability of the assurer. On the 7th of December, 1868, two years after the loss occurred, Hearne brought an action at law against the Company. The court held that he was not entitled to recover, by reason of the deviation before stated. He failed in the suit. On the 16th of January, 1871, he filed this bill, and prayed therein to have the contract reformed so as to cover the elongated voyage from St. Iago to Manzanillo. The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense and are well settled. Where the agreement, as reduced to writing, omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties will be placed as they would have stood if the mistake had not occurred. Kerr, Fraud and Mistake, 419, 420. The party alleging the mistake must show exactly in what it consists, and the correction that should be made. The evidence must be | 513; see, also, 1 Duer, Ins., 266 and the cases such as to leave no reasonable doubt upon the there cited. mind of the court as to either of these points. Beaumont v. Bramley, 1 Turn. & Rus., 41; Breadalbane v. Chandos, 2 Myl. & C., 711; Fowler v. Fowler, 4 De Gex & J., 255: Sells v. Sells, 1 Drew. & Sm., 42; Lloyd v. Cocker, 19 Beav., 144. The mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended. Rooke v. Kensington, 2 K. & J., 753; Eaton v. Bennett, 34 Beav., 196. A mistake on one side may be a ground for rescinding, but not for re-sible with reference to the context or the exforming, a contract. Mortimer v. Shortall,2 Dr. & War., 372; Sells v. Sells, supra. Where the minds of the parties have not met there is no contract, and hence none to be rectified. Bentley v. MacKay, 31 L. J. Ch., 709; Baldwin v. Mildeberger, 2 Hall., 176; Coles v. Bowne, 10 Paige, 534; Calverley v. Williams, 1 Ves., Jr., 211. This jurisdiction is applied, where necessary and proper, to the reformation of contracts of insurance. Harris v. Ins. Co., 18 Ohio, 116; Ins. Co. v. Powell, 13 B. Mon., 311; Ins. Co. v. Crane, 16 Md., 260. Usage is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract. Blackett v. Roy. Exch. Ass. Co., 2 Cromp. & J.,250; Crofts v. Marshall, 7 C. & P., 607; Phillips v. Briard, 1 Hurl. & N., 21. If the words employed have an established legal meaning, parol evidence that the parties intended to use them in a different sense will be rejected, unless if interpreted according to their legal acceptation, they would be insentrinsic facts. Wigram, Wills, 11. 12. If no such consequence is involved, proof of usage is wholly inadmissible to contradict or in any wise to vary their effect. Yates v. Pym, 6 Taunt. 446; Blackett v. Roy. Exch. Ass. Co.,supra. In no case can it be received where it is inconsistent with, or repugnant to. the contract. Otherwise it would not explain, but contradict and change the contract which the parties have made-substituting for it another and different one, which they did not make. Holding v. Pigott, 7 Bing., 465; Clarke v. Roystone, 13 Mees. & W., 752; Trueman v. Loder, 11 Ad. & El., 589; Muncey v. Dennis, 1 Hurl. & N., 216. To that it should be excluded in express terms. It is sufficient if it appear that the parties intended to be governed by what is written and not by anything else. Hutton v. Warren, 1 Mees. & W., 477; Clarke v. Roystone, supra. Here the application was to insure on a charter "from Liverpool to Cuba, and load for Europe, via Falmouth," etc. This was indefi-establish such inconsistency, it is not necessary nite as to Cuba, and may have been regarded by the Company as ambiguous. The answer was, as requested, we have entered $5,000 on charter to port in Cuba, and thence to port of advice and discharge in Europe." The answer shows clearly two things: (1) How the Company understood the proposition. (2) That they agreed to insure according to that understand ing, and not otherwise. There was no mistake nor misapprehension on their part. The circumstances show there could be none. The correspondence between the parties constituted a preliminary agreement. The answer to Hearne's proposal was plain and explicit. It admitted but of one construction. He was bound carefully to read it, and it is to be presumed he did so. In that event there was as little room for misapprehension on his part as on the part of the Company. Such a result was hardly possible. There is nothing in the evidence which tends to show that any occurred. The inference of full and correct knowledge is inevitable. It is as satisfactory to the judicial mind as direct evidence to the same effect would be. So far, the complainant's case is as weak in equity as it was at law. But it is said there was a usage that vessels going to Cuba might visit at least two portsone for discharge and the other for reloading. It is insisted that this usage authorized the voyage to Manzanillo; that the voyage was not a deviation; that it in nowise affected the liability of the Company in equity; and that hence the contract of the parties in this particular should be reformed accordingly. It is not necessary that the usage relied upon in cases like this should have been communicated or known to the assurers. Lord Mansfield said: "Every underwriter is presumed to be acquainted with the practice of the trade he insures, and if he does not know it, he ought to inform himself." Noble v. Kennoway, 2 Doug., The principle of the admission of such testimony, is that the court may be placed, in regard to the surrounding circumstances, as nearly as possible in the situation of the parties-the question being: what did they mean by the language they employed? 1 Greenl. Ev.,sec. 295 a. What is implied is as effectual as what is expressed. U. S. v. Babbit, 1 Black, 61 [66 U. S., XVII., 96]. The expression and the implication in this case are equally clear. It is expressed that the vessel should proceed to a port in Cuba, and thence to Europe. It is implied that she should visit no other port in Cuba. Expressum facit tacitum cessare. Under these circumstances, usage can have no application, and proof of its existence is inadmissible. But the usage relied upon is not sustained by the evidence. It appears that a large portion of the vessels, perhaps four fifths, which go laden with coal to Cuba, take on their return cargo elsewhere on the island than at the port of discharge. A few use the same port for both purposes. But the proof is also that the contract in all such cases is expressed according to the intent. There is no proof that where the policy is upon a voyage to one port and back, the vessel may proceed to another port before her return, and that by usage or otherwise, the latter voyage as well as the former shall be deemed to be within the policy. Viewing the case in this aspect, we find nothing that would warrant the interposition of a court of equity. We are asked, if we decline to reform the contract, to decree the return of the premium. This we cannot do. We regard the case as one of mere deviation. It is essentially of that character. In that class of cases, the law annuls the contract as to the future, and forfeits the |