deficiency caused by nonpayment of assessments by insolvent members. The words of the statute are direct, plain, and unambiguous. A literal and unrestricted interpretation preserves the plain, paramount intention of the lawmakers clearly expressed by the statute. The title of the act under which this company is organized is, “An act to provide for the formation of county and town co-operative insurance companies," indicating at the outset that those who organized themselves into a corporation under the act were to operate jointly and together to the same end. It is provided by the statute that every person who becomes a member of the corporation shall pay his pro rata share to the company of all losses or damages caused by fire or lightning which may be sustained by any member or members thereof. It surely would be a strained construction to say that it was intended by the use of these words to bind each member of the company to the payment of an entire loss, if all other members should prove to be insolvent. If it were so intended, the words "pro rata"-that is, a distribution proportionally-would not have been used in expressing the intention of the legislature. There is nothing in the statute which indicates that the members of a corporation organized thereunder were to indemnify those insured against loss by reason of the insolvency of a member, nor any obligation to pay the share or proportion of any other member who might become insolvent, or from any cause unable to pay his proportionate share of the loss. Under the construction contended for by appellant, a solvent member might be compelled to pay the entire loss, and also the expenses of the company or receiver in ascertaining and determining the question of the solvency or insolvency of the members. Will it be contended for a moment that any person would become a member of such a corporation knowing that he might become liable individually to pay all the losses occurring in the class where he was insured? If such were the intention expressed in this statute, and so expressed as to be clearly understood and comprehended, there would be no corporation organized under the law, for no sane man would venture upon so hazardous an undertaking. The regnant idea and intention of the statute are that each member of the company is to pay such proportion of the loss as the amount of his insurance bears to the whole amount of insurance in the same class. The liability of the member is not joint and several, but the principle is that each one contracts that, in respect of a certain sum or premium to be levied by a pro rata contribution on the amount for which he himself is insured, he will contribute to pay the contingency insured against, which may occur to any other member; but there is no participation by any member in respect of the liability of any other in regard to solvency, default, or dishonor. No member insures the solvency, the honesty, or good faith of other members. The question of contribution depends on the contract, and not on equitable considerations. A member undertakes no liability other than that of being able to contribute his share of the losses, and he never in any way made himself a party to the debt or obligation of any other member to a suffering member. Each member, foreseeing the contingency of himself

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suffering a loss, took his chances with the rest. He knew when he executed his contract that, if he suffered loss by fire, his entire loss might not be made up to him, for the contract he and all other members executed provided that each member should pay only his proportionate share of such loss, and not the share of a defaulting or dishonest member. Each man agreed to pay, but his proportion was limited, and beyond that he could not be called upon. In my opinion, this is the true intent and meaning of this statute. doubtedly the receiver is authorized by statute to make the assessment, and to that end to make application to the court, setting out the necessity for levying assessments. The petition is ex parte, the order for making the assessment granted is an ex parte order, and the confirmation thereof ex parte. The members have no day in court, and no opportunity of ascertaining the nature and extent of the indebtedness, or the amount necessary to be assessed upon each member to pay the debts and liabilities of the company, and the expenses of the receiver in collecting the assessment. was the course adopted in the proceeding upon making the assessment which has been made, and the course adopted in the present proceeding. The members received no notice of the hearing before the referee, who was appointed to take proof, and report, with his opinion as to whether a second assessment should be made. Such a course is obviously liable to abuse, and provocative of litigation. Notice of the hearing before the referee should have been given by him to all members sought to be assessed, and they should have been allowed to contest the application, and, if necessary, to except to the referee's report, and oppose its confirmation. One assessment has already been authorized by the court and made by the receiver for the purpose of paying the indebtedness of the company to plaintiff. There was a deficiency, caused, as plaintiff claims, by reason of the fact that some of those assessed as members contested the assessment, and were successful, some were dead, and some insolvent. The statement as to the cause of the deficiency is vague and indefinite. The record does not disclose how many members so assessed were insolvent, nor how many were dead, nor how many were successful in contesting the assessments. The former proceeding was instituted solely in the interest of plaintiff, who was a former officer of the company, and a member of the same. It was his duty in such proceeding to have informed the receiver and the court of the members of the association liable to assessment for the payment of his judgment, and, not having done so at that time, and not definitely informing the court upon this application, made by himself, as to who or how many of the members he claimed are liable to assessment, he ought not to complain if he is now precluded from compelling the receiver to make another assessment. present proceeding is conducted by the plaintiff and against the opposition of the receiver, who insists that it is unauthorized, and, if ordered, will be resisted by the members assessed, on the ground that they have already been assessed their pro rata share, as provided by their contracts, and are under no further liability. This assessment should not be authorized by the court under these cir

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cumstances, unless it clearly appears that the members are under further liability under the statute and their contracts executed in accordance with the statute. We think this has not been shown, and that the order appealed from should be affirmed, with costs against the plaintiff.

All concur, except WARD, J., who dissents.

App. Div. 15.)

PEOPLE v. HALL.

(Supreme Court, Appellate Division, Fourth Department. June 17, 1896.) 1. GAME LAW-PRIVATE PARK-POSTING NOTICE.

Laws 1892, c. 488 (Game Law) § 212, provides that a person desiring to devote lands or lands and water to the propagation of fish or game may publish a notice describing the premises and declaring that they will be used as a private park for the purpose of propagating and protecting fish and game. Sections 213, 214, provide for posting notices on the land, but do not expressly require the notices so posted to state the purpose for which the land is to be used. Held, that the posted notices must nevertheless state the purpose for which the lands are to be used. 2. SAME EVIDENCE.

The owners of premises, claiming that they had devoted the same to the purpose of propagating fish and game, testified that they had inclosed the premises for hunting purposes, and that they had sold to about 10 persons the privilege of shooting on the land, reserving the right to shoot there themselves. The only evidence of any act done towards propagating fish or game was that the pond had been stocked with carp about five years before, but no quantity was specified. Held, that the evidence was insufficient to show that the lands and water were devoted to such purpose.

Appeal from court of sessions, Seneca county.

Thomas Hall was convicted of the crime of shooting wild ducks on lands used as a private park, in violation of Laws 1892, c. 488 (Game Law); and from the judgment of conviction he appeals. Reversed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

Frank S. Coburn, for appellant.

Hammond & Hammond, for respondent.

GREEN, J. The defendant was convicted of the crime of shooting wild ducks upon certain lands and water claimed to have been devoted and used as a private park, for the purpose of propagating and protecting fish, birds, and game, "without the consent of the owner or person having the exclusive right to shoot, hunt, or fish thereon." The prosecution and conviction seem to have been based exclusively upon sections 212–215, 217, c. 488, Laws 1892, as amend ed by chapter 573, Laws 1893. It is so stated in the respondent's brief, and so it would appear from the printed case; and it is not contended that the appellant was guilty of violating sections 210 and 211, relating to trespassing upon "inclosed or cultivated land for the purpose of shooting or hunting any game." The affidavit of Edward Lay, upon which the warrant was issued, stated that

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the lands were "partially inclosed"; and he testified that his lands consisted of 106 acres of marsh, swamp, and water, and 85 acres of upland. "We pasture the marsh land in the summer time, and we have inclosed the marsh and water for hunting purposes. marsh part is fenced down the water." Hiram Lay testified that the lands were fenced on the north, south, and west, but not on the east; that the fence was for keeping cattle off the hard land, and was there before the passage of this statute. But the contention upon this appeal is that the lands were regularly devoted and used as a private park, for the purpose of propagating and protecting fish, birds, and game; but this is controverted by the appellant, and that is the main question to be considered and determined. Is the respondent's contention supported by adequate proof of user for the purposes of propagating and protecting birds and game?

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The "private park or territory" claimed by the complainants consists of about 250 acres, about 106 or 125 acres being of marsh, swamp, and water, the body of water being designated as Black lake or pond, and connected by an outlet into Seneca river. times the low lands would be covered by overflow water from Seneca river, and at other times the water would be so low that the pond would be greatly reduced from its normal size, by reason of low water. Evidence was given tending to show title in the prosecutors of the land surrounding and under the said pond, except a part of a small cove on the extreme southern edge of the pond, and said to contain one-half or three-quarters of an acre of land. Edward Lay testified that, before he put up the signboards, everybody hunted and fished on that lake or pond, and have done so as long as he could remember, without hindrance from him; and that there are about 50 acres of marsh land between the hard land and the pond; that in time of high water the marsh and swamp lands are covered with water, also the lands belonging to Carey, Hammond, and Charles Lay; that "the identity of the lake is lost in time of high water. I do not know just where the lines are. I don't know the exact location of the north line of lot 63. The lake and marsh is all one body of water in time of high water. The water in the lake rises as the water in the river rises. The lake connects with an inlet and outlet. The water rises in the river first, and sets back in the lake. There are springs in the lake. In time of low water the water runs from the lake to the river." A witness (Carey) called by defendant testified that he owned lands north of the complainants'; that a "slank" of the lake runs up into his land at time of medium water, 50 or 60 rods; that he shot and fished on the waters covering his land in the spring of the year, to the knowledge of the complainants; that he has known of 50 acres of his land covered with water four feet deep in the spring of the year; that there are times when the lake is fed by waters from the river, and times when it is not; that a south wind raises the water in the lake and marshes; that the inlet is not a very large body of water, and is not fed by the spring; that this "slank" is a low piece of land, and in low places the water cannot get out, and the low places are sometimes connected with the lake, and sometimes not. Hall testified that

the lake is fed from the river in high water, but at times it gets so dry that there is but little water in it. This is about all the material evidence that is necessary to be presented in the determination of the matters in controversy. The defendant was shooting on a small island in about the center of the pond. Respondent says that the complainants do not claim the exclusive right to the whole of Black lake, but only to exclude people from the lands described by them in their published notice, and no more; that they make no claim to hunt or fish in the cove referred to, situated at the extreme southerly point of the lake; that it is no part of the lake proper. By section 212, c. 488, Laws 1892, it is provided that:

"A person owning or having the exclusive right to shoot, hunt or fish on lands, or lands and water, desiring to devote such lands, or lands and water, to the propagation or protection of fish, birds or game, may publish in a paper printed in the county within which such lands, or lands and water, are situate, a notice substantially describing the same and containing a clause, declaring such lands or lands and water will be used as a private park for the purpose of propagating and protecting fish, birds and game."

Sections 213 and 214 provide for posting notices or signboards upon the premises.

By section 215.

"Upon compliance with the foregoing provisions for preventing trespassing or for devoting lands to propagation of fish, birds and game, no person shall disturb or interfere in any way with the fish or wild birds or wild animals while on the premises so protected, except with the consent of the owner or person having the exclusive right to shoot, hunt or fish thereon."

By section 217, as amended by chapter 573, Laws 1893, any violation of the provisions of this article is made a misdemeanor; and, in addition, the violator is subject to exemplary damages, in an amount not less than $15, nor more than $25, in addition to the actual damage sustained by the owner or lessee.

By section 245, any person convicted of a misdemeanor under the provisions of this chapter shall be punished by a fine of not less than $10, or be imprisoned in the county jail or penitentiary for a period of not less than one day, nor more than at the rate of one day for every dollar of such fine, or by both such fine and imprisonment.

It is not disputed but that the complainants fully complied with the statutory requirements as to publication in the newspaper, and also placed signboards warning trespassers. The purpose of this statute is to make it a criminal offense, and therefore an offense against the people at large, for one to enter upon the lands of another, who has complied with the conditions prescribed, for the purpose of shooting wild birds or animals, or of fishing in the pond, lake, or streams thereon. Evidently, the provisions referred to are of a highly penal character, and, by all canons of construction, they must be strictly construed, and not be extended by implication. The leading rule of construction of statutes is, of course, to ascertain fairly the intention of the legislature; but in statutes giving a penalty, if there be a reasonable doubt of the case, made upon the trial or in the pleadings, coming within the statute, the