Same-Same-Same.-Under the provisions of Act 1888, c. 429, sec. 8, that a fraternal beneficiary organization may provide in its by-laws for the payment of a fixed sum by each member to be paid to the beneficiary of deceased members as shall be fixed by said by-laws, and written in the benefit certificate issued to such member and of section 9 of said chapter, that" any such corporation may hold at any one time as a death fund belonging to the beneficiaries of anticipated deceased members an amount not exceeding one assessment for a general or unlimited membership," etc., a certificate issued by such beneficiary corporation, promising in general terms to pay, but naming no person, and not under seal, is a promise to the beneficiary, and he, and not the administrator of a deceased member, must sue in respect thereof. Flynn v. Association, 25 N. E. 716; 152 Mass. 288, distinguished.

Dean v. American Legion of Honor (Mass. S. J. C.), 31 Northeastern Reporter (June 10, 1892), p. 1.

Statute-Notice of Premium.-Laws N. Y., 1876, c. 341, as amended by Laws 1877, c. 321, provides that before a policy can be forfeited for non-payment of premiums a notice shall be served on the insured, which notice shall "state that unless the said premium or interest then due shall be paid to the company, or to a duly appointed agent or other person authorized to collect such premium, within thirty days after mailing of such notice, that such policy and all payments thereon will become forfeited and void," etc. The notice sent to insured was to pay within thirty days from the date of notice; otherwise your policy will be forfeited. Held, that the notice was insufficient, and not compliance with the statute for the reason that it failed (1) to notify the insured that all payments which had been made thereon would become forfeited; and (2) it failed to notify the insured that the policy would be void.

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Same-Same.-The provisions of said chapters do not apply to policies issued upon monthy or weekly installments of premiums and where the statutory notice is relied on it must be shown that such notice was actually received by the insured before the company can forfeit the policy for non-payment of an assessment, unless it is otherwise agreed in the contract.

Merryman v. Keystone Mut. Ben. Ass'n (N. Y. S. C.), 18 New York Supplement (April 28, 1892), p. 305; 44 New York State Reporter (June, 1892), p. 797.

The petitioners filed their bill to have a receiver appointed, and for an order of distribution of the funds held by defendant in the endowment benefit business. The defendant is a Massachusetts corporation, incorporated "for the purpose of doing an insurance business as provided in chapter four hundred and twenty-nine of the acts of the year 1888." By section 8 of that statute," any corporation duly organized as afore

ness,

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* *

said, which does not employ paid agents in soliciting or procuring busiand which conducts its business as a fraternal society on the lodge system," may provide for weekly payments to members during disability, or pay a benefit to the member or his family at the end of such period of time as shall be fixed by said by-laws and written in the benefit certificate issued to said member. Held, that where a corporation organized under said act provided for payment of a benefit to members at the end of a year, out of a fund created by assessments levied for that purpose, but employed paid agents to solicit business, members to whom such benefit certificates had been issued might refuse to pay further assessments without forfeiting payments already made, and were entitled to have the fund already accumulated distributed among the certificate-holders.

Fogg et al. v. Supreme Lodge of the Order of the Golden Lion (Mass. S. C.), 31 Northeastern Reporter (July 1, 1892), p. 289.

Locus of Contract.-A policy of insurance, which does not become a binding contract until its delivery, is governed by the laws of the state in which the insured lives, to whom it was there delivered by a resident agent of the company, although it was executed and dated at the company's office in another state.

Statute-Death by Suicide-Defense.-Rev. St. Mo. 5982, providing that "in all suits upon policies of insurance on life hereafter issued," it shall be no defense that the insured committed suicide, unless he contemplated suicide when he applied for the policy, any stipulation in the policy to the contrary notwithstanding, applies to all life insurances, whether issued by assessment or level premium companies, except as otherwise provided by the statute.

Same-Same-Assessment Companies.—An assessment "life indemnity company," having no lodges, or sociable, charitable, benevolent, or literary features, and neither paying sick dues, or giving other attention to members in distress or poverty, is a life insurance company, and is subject to the regulations imposed by the insurance laws, as distinguished from the laws relating to co-operative benevolent societies, although its insurance is confined in practice, but not by its charter, to members of the Masonic fraternity.

Knights Templar and Masons Life Indemnity Co. v. Berry et al. (U. S. C. C. A.), 50 Federal Reporter (July 5, 1892), p. 511.

Pleading-Complaint-Proof. - An allegation in the complaint that all the conditions of the contract were performed by the plaintiff, even when denied by the answer, does not place upon plaintiff the burden of proving that each particular condition was fulfilled.

Same-Admission in Answer.-Where the answer admits that the mortuary fund contains more than the amount of the certificate, plaint

iff is not required to prove that the fund contains that amount applicable to the payment of the certificate.

Same-Defense.-Plaintiff need not prove that assured paid all the assessments made against him, since the failure to pay is an affirmative defense, the burden of which rests on defendant.

Motion to Dismiss-Evidence-Defense.-It is not error for the court to refuse to dismiss the action on proof of untrue answers to questions in the application, unless those particular misrepresentations were pleaded as a defense, though misrepresentations as to other matters may have been pleaded, nor is the court required to submit to the jury the question of misrepresentations not pleaded.

Non-Payment of Assessment-Forfeiture.-Where the holder of a mutual benefit certificate dies after he has been notified of an assessment, but before the time allowed for its payment, his failure to pay does not forfeit the certificate.

Same-Notice-Statute.-Though the holder of a mutual benefit certificate before his death may have failed to pay an assessment which he was notified to pay, the certificate is not forfeited if the notice did not state, as required by Laws N. Y. 1876, c. 341, as amended by Laws 1877, c. 321, that "unless it was paid the certificate would be forfeited."

Forfeiture-Waiver.-Where a mutual benefit association makes an assessment on a member, it waives the right to claim a forfeiture of his certificate for failure to pay a premium or assessment previously due.

Elmer v. Mutual Ben. Life Ass'n of America (N. Y. S. C.), 19 New York Supplement (July 7, 1892), p. 289.

By-law-Interest of Beneficiary-Death of Beneficiary.-Where a member of an association holds its certificate to pay a certain sum to such person as he shall designate, and the by-laws of the association give him the power at any time to change the designation, not requiring the consent of the person first designated, the latter has but a bare expectancy, which ceases upon the death of such person during the life of the person insured.

Gutterson v. Gutterson et al. (Minn. S. C.), 52 Northwestern Reporter (July 9, 1892), p. 530.

Application-Warranty-Forfeiture.-Under a provision in an application for insurance making representations, whether known to be false or not, warranties, a statement, to the best of applicant's belief that no company had refused him a policy, when in fact a policy had been refused, will defeat the policy.

Kemp v. Good Templars Mut. Ben. Ass'n (N. Y. S. C.), 19 New York Supplement (July 14, 1892), p. 435.

By-Law-Beneficiary-Estoppel.-It was provided by section 17 of the by-laws of defendant that the beneficiary of the insured must be husband, wife, family, heirs, legal assignee, or creditor of insured person. The insured designated his son-in-law as his beneficiary, or said beneficiary's heirs, administrators or assigns. The policy provided that it should be incontestable after one year. The beneficiary assigned the policy and the defendant consented to such assignment. Held, that defendant was estopped to defend on ground that assignee was not of the class of persons named in the by-law as beneficiary.

Smith v. People's Mut. Ben. Soc. (N. Y. S. C.), 19 New York Supplement (July 14, 1892), p. 432.

Forfeiture-Rule of Court.-As in all other cases, forfeiture of the insurance provided by mutual benefit associations is not favored by the courts. They, in construing the conditions of membership when a forfeiture is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership.

Same-Waiver.-Where the by-laws of a mutual benefit life association provide that, if a member fails to pay an assessment before the first day of the following month after he receives notice thereof, he shall stand suspended, and during his suspension his. benefit certificate shall be void, and that the head clerk of such association shall mail to such member a notice of his suspension, informing him what it is necesssary for him to do to become re-instated. Held, that if after the non-payment of such assessment, the head clerk failed to mail or otherwise notify such member of his suspension, and the association makes a subsequent assessment upon him, and thereby treats him as a member, and the local agent of the association receives payment of such assessments, after the member is dead, from a friend who supposed him to be in a swoon only, and the agent in good faith re-instates such member, and the association does not return the money received upon such assessment to the beneficiary, or to the friend paying the same, the benefit certificate can not be considered void, or the member deemed suspended at the time of his death. 29 Pacific Reporter 473, reversed.

Modern Woodmen of America v. Jameson (Kan. S. C.), 30 Pacific Reporter (August 11, 1892), p. 460; 21 Insurance Law Journal, 711.

Foreign Company-Process.-Where a foreign mutual insurance company authorizes a person in this state, whom it designates as its local or branch secretary, to receive assessments from its members in this state, and countersign and deliver receipts therefor, and forward the money so received to the home office in another state, and the company has no other officer in the county where service is sought upon the company upon whom service may be had. Held, that the service on said local secretary, is a valid service under our statute, and the refusal of the court to set it aside is not error.

Certificate-Measure of Recovery-Proof.-Where suit is brought on a benefit certificate for $2,000, issued by a mutual assessment insurance company, wherein the company promises to pay the beneficiary therein named 75 per cent. of the proceeds of one full assessment on all the members at the time of the member's decease, and the only issue in the case is whether or not the membership lapsed during the lifetime of the member, the beneficiary may recover thereon without proving a demand on the company to make an assessment to pay the loss, or that an assessment has been made, or, if made, the amount thereof.

Same-Same. In the absence of any proof on the part of the company, showing the amount of such assessments, the presumption in favor of the beneficiary was that an asssessment would pay the full amount named in the certificate.

Same-Same-Instruction.—The court instructed the jury that if they found for the plaintiff they should assess her damages at the amount of one assessment. The jury found for the full amount named in the policy. There was no evidence as to the amount that would be realized from one assessment. The defendant contends that, there being no evidence as to the amount of one assessment, the jury, under the instruction of the court, were not warranted in finding for plaintiff. Held, that the question of damages is not within the issues of the case, and, therefore, the jury might ignore the instruction of the court.

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Southwestern Mut. Ben. Ass'n v. Swenson (Kan. S. C.), 30 Pacific Reporter (August 4, 1892), p. 405.

Contract-Policy and Application.-In an action on a policy of life insurance the policy and application therefor must be construed as one instrument.

Policy-Application-Breach of Warranty-Non-Suit.-When the insured suppresses, in his application, the fact of the existence of other insurance on his life in violation of a condition of the policy, it will be conclusively presumed that the suppression was intentional; and in an action on the policy, the fact of existence of other insurance at the time of application being undisputed, the court may properly refuse to submit the case to the jury.

Studwell et al. v. Mutual Ben. Life Ass'n of America (N. Y. City Superior Ct.), 19 New York Supplement (August 4, 1892), p. 709.

Change of Beneficiary-Statute.-The plaintiff was the second wife of a person whose life was insured in a benefit society, incorporated under R. S. O. 1877, c. 167, as amended by 41, V. c. 8, s. 18, now R. S. O. c. 172. On the 28th of January, 1888, being then a widower, he obtained a benefit certificate from the society by which the insurance was made payable to his children. After this he married the plaintiff, and on the 1st of June, 1889, a new certificate was at his request issued by