which the insurance was made payable to the plaintiff, and he died shortly afterwards. Held, per Hagarty, C. J. O., and Burton, J. A., the effect of 51 V. c. 22 was to make the first certificate subject to the provisions of R. S. O. c. 136, ss. 5 and 6, and it was thus a trust in favor of the children, and was not revoked by the second certificate. Held, per Osler and Maclennan, J. J. A., the rules of the society giving a power of revocation formed a valid part of the contract of insurance under R. S. O. c. 172, s. 11, and this power of revocation was not taken away or restricted by R. S. O. c. 136, ss. 5 and 6.

Mingeaud v. Packer (Ont. S. C. of J.,-C. A.), 12 Canadian Law Times, (July, 1892), p. 307.

Change of Beneficiary. The beneficiary named in the policy of a mutual benefit society, has no such vested right in the policy and the money it represents that the insured can not change the beneficiary in compliance with the terms of the policy, and with the consent of the association.

Beneficiary-Insurable Interest-Wager Policy.-The beneficiary in a mutual benefit policy must be a relative of insured by blood or marriage, or in a position to expect some benefit from the continuance of the insured's life, or the contract is a wagering one, and void, as against public policy.

Assignment to Creditor-Surplus over Debt.-Where such certificate is assigned by the insured to a creditor, the creditor is entitled to only so much of the proceeds as is necessary to his indemnity, and the representatives of insured are entitled to the balance.

Metropolitan Life Ins. Co. v. O'Brien et al. (Mich. S. C.), 52 Northwestern Reporter (Sept. 3, 1892), p. 1012.

Wager Policy-Right to Proceeds.-The right of the legal representatives of an assured to recover the proceeds of a speculative life policy from a person who has received the money, ceases where an executor, or administrator has received and in good faith distributed it.

755.

Blake v. Metzgar (Pa. S. C.), 24 Atlantic Reporter (Sept. 7, 1892), p.

LIFE INSURANCE.

Policy-Beneficiary-"Children."- Where the policy on the life of a husband provides for payment to the wife, if living, and if not, to the children or their guardian, and the wife dies before the husband, the proceeds do not go entirely to the children who survive the mother, but the share to which one, who died before the mother, would have been entitled to if living, is payable to the representatives of such child.

Walsh v. Mut. Life Ins. Co. (N. Y. S. C.), 39 New York State Reporter (Sept., 1891), p. 710; 15 New York Supplement (Sept. 24, 1891), p. 697.

Statute-Motion to Quash Summons-Appearance.-Under Rev. St. Texas, Art. 1243, providing that, where the citation or service thereof is quashed on motion by defendant, he shall be deemed to have entered his appearance to the succeeding term of court, a special appearance to quash service of citation, is a general appearance to the action at the next term, although the motion to quash is overruled.

Service on Agent-Evidence of Agency.-Service was had on one D. The evidence showed that prior to 1878, D. had been appointed its attorney for the purpose of accepting service, and had acted as general agent of the company in the state; that he had not had such power under power of attorney since 1878; that the company had ceased to do business in the state, but that D. had collected the premiums for defendant on the policy in suit, and on other policies since that time; that D. claimed to plaintiff to have the authority to adjust the loss on policy in suit, and exhibited a letter to that effect from one of the officers of the company; that D. furnished the blanks for proots of death; that his letter-heads read, "J. A. Davis, Collector and Adjuster Etna Life Insurance Company, Weatherford, Texas." Held, that D. was the agent of the defendant company, and that service on him was good.

Evidence-Intemperance. The evidence being conflicting as to the intemperance of the insured, a verdict for plaintiff will not be disturbed on appeal.

Same-Same-Waiver.-An agent of the company who knew the insured, received premiums from him for several years, and delivered

the company's receipts, renewing the policy for another year, and reciting that it was not intended to waive any forfeiture for intemperance, etc. There was no evidence that insured's intemperance was unknown to the company, or was or could have been concealed from it. Held, that it was proper to charge that, if the company accepted premiums with the knowledge of his intemperance, the forfeiture was waived.

Etna Life Ins. Co. v. Hanna (Texas S. C.), 17 Southwestern Reporter (Sept. 14, 1891), p. 35.

Endowment Policy-Assignment.-A policy of life insurance payable at the end of fifteen years to the insured, but for the benefit of his wife and son should he die within that time, can not be assigned by him without their consent so as to vest the proceeds thereof in the assignee, upon the death of the insured within the fifteen years.

Void Assignment-Return of Premium Paid.-Where the insured under a policy of life insurance agreed to assign it to a creditor, although the agreement could not be carried out because the beneficiaries did not consent, upon the death of the insured, the amount of the creditor's money which was used to pay premiums should be decreed paid to the creditor.

Hubbard v. Stapp (Ill. App. Ct.), 32 Ill. App., 541.

Contract - Promise of Dividends-Construction.—The representation made that participating policies "would receive their equitable share of the divisible surplus," held to point to the exercise of the discretion of the managers of the company, and the expression “divisible surplus" is one that refers to something less than the entire profits of the company, as claimed by plaintiff, that is, the profits which the company might, after making in good faith all reasonable and proper provision for its safety, divide among policy-holders.

Bain v. Etna Life Ins. Co. (Cana. H. C. of J., Q. B. D.), 11 Canadian Law Times (Oct., 1891), p. 273.

Practice-Appealable Case.-In an action brought against a life insurance company, the company acknowledged liability, but alleged that several parties were claiming the proceeds of the policy, each in different right, and asked that all the parties be required to interplead as to their rights to the fund, which it asked to be allowed to deposit in court. The company was allowed to deposit the money and was discharged. The several claimants came in, and by answers and cross-petitions set up their respective demands, some of them claiming the entire fund, and others a portion only. Issue was joined upon these pleadings, and, no jury being demanded, the case was tried to the court, which, upon the testimony, found in favor of one of the cross-petitioners as to a portion of the fund, and for plaintiff as to the remainder, and rendered judgment accordingly. The case having been appealed to the circuit court, upon motion to dismiss the appeal, held, that upon the issues presented

in the pleadings the case was one in which either of the parties were entitled to a trial by jury, and that consequently an appeal did not lie.

Pratt, Adm'r, v. Ætna Life Ins. Co. et al. (Lucas Co., Ohio, C. C.), 26 Weekly Law Bulletin (Nov. 9, 1891), p. 587.

Application-Warranty Against Suicide-Suicide While Insane. -The insured, in his application for the policy, warranted that he would not commit suicide within two years from the date of the policy. Within a month from the date of the policy the insured shot himself. In answer to a question the jury found that he was insane when he shot himself, and so insane as not to know that firing a gun into his head would kill him. On this finding the judge entered judgment for plaintiff. Held, that the insured was bound by the warranty in the application. If a person warrants that he will not die by his own hand, and that if he does his policy will be void, he is practically warranting himself to be, and to continue during the existence of the policy, in such a state of mind as will prevent him from dying by his own hand, whether during sanity or insanity.

Ballantyne v. Mutual Life Ins. Co., 25 Irish Law Times and Solicitors' Journal (Oct. 3, 1891), p. 538.

Wife's Policy-Assignment-Statute.-Under Acts N. Y., 1840, which provides that in case the wife survive the husband, the amount payable to her by the terms of an insurance policy shall be payable to her for her own use, free from all claims against the husband, a wife can not assign to a creditor of the husband her interest in a paid-up insurance policy running to herself and children.

Children as Beneficiaries-Assignment by Guardian.-A father as guardian of his children, can not assign a paid-up insurance policy running to their benefit.

Assignment-Lex Loci.-Where a contract of assignment of an insurance policy is consummated in New York, and the assignors reside in Tennessee, the lex loci contractus govern.

Pratt et al. v. Globe Mut. Life Ins. Co. et al. (Tenn. S. C.), 17 Southwestern Reporter (Nov. 16, 1891), p. 352.

Statute-Application as Evidence.-Under Act Pa. 1881 (P. L. 20), which provides that an application for an insurance policy not attached to the policy shall not be considered as part thereof, the court properly rejected an application, detached from the policy, offered in evidence by the company in an action against it on the policy.

Same-Same-Presumption of Fact.-It will not be presumed that the application was ever attached to the policy; that fact, if it existed, being, of necessity, within the knowledge of, and capable of being shown by, the company.

Mahon et ux. v. Pacific Mut. Life Ins. Co. (Pa. S. C.), 22 Atlantic Reporter (Nov. 25, 1891), p. 876; 48 Legal Intelligencer (Dec. 4, 1891), p. 502.

Wager Policies-Evidence.-Defendant held a policy for $2,000 on the life of his debtor. On the debtor's suggestion that this policy was insufficient to secure the debts due, and at his request, the defendant took out another policy on the debtor's life, and agreed in consideration thereof, to pay the expenses of the debtor's burial, which expenses the defendant paid, and also advanced other money for the support of the debtor's family. Defendant recovered a portion of the two policies from the two companies. Held, in an action by the debtor's administrator to recover the balance of such insurance, after paying the debts and costs, on the ground that the policies were speculative, that the court erred in separating the policies, and holding that the indebtedness existing when the first policy was issued was sufficient to take it out of the speculative class, and leaving the jury to determine whether the subsequent indebtedness for burial expenses and advances was sufficient to validate the second policy, defendant having a right to require that the whole indebtedness should be considered in reference to both policies.

Same-Insurable Interest of Creditor.-A creditor may lawfully take out a policy of insurance on the life of his debtor in an amount to cover the debt and interest, and the cost of such insurance, with interest thereon, during the period of the expectancy of life of the insured, according to the Carlisle tables, and the fact that the debtor dies before expiration of his expectancy does not render the insurance void.

Same-Same.-The money paid by the creditor for the funeral expenses of the insured in pursuance of the agreement made before the death of the insured, was properly included in the indebtedness which the policies were intended to secure.

Same-Same-Accounting.-The amount paid by the defendant for counsel fees in collecting the insurance from the companies should be deducted from the amount in his hands, in case of recovery by plaintiff of the balance of such insurance money remaining after the satisfaction of the defendant's claim.

865.

Shaffer v. Spangler (Pa. S. C.), 22 Atlantic Reporter (Nov. 25, 1891), p.

Agency-Existence of Company -Evidence-Practice.-On the trial of an indictment for unlawful discrimination as to premiums by the defendant as agent of an insurance company organized under the laws of Vermont, there was proof that he assumed to act as agent of such company and issued to the insured a policy purporting to be issued by such company, endorsed by him as such agent, and he testified that he had been acting as agent of “ our company." Held, that by issuing the policy he affirmed that the company was existing and doing business in this state and that he was its duly authorized agent, and not having raised the question at the trial, he could not, on appeal, claim that its incorporation was not sufficiently proven.