thereby. If the priority to the use of water for agricultural purposes, is a right of property, then the right to sell it is as essential and sacred as the right to possess and use. Blackstone says: "The third absolute right inherent in every Englishman is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land." 1 Bl. Comm. p. 138. What difference can it make to others whether the owner of the priority in this case uses it upon his own land, or sells it to others to be used upon other lands? There is no claim of waste occurring between the present points of diversion and the place where the city is to take the water. Where a material waste results from the change, a new feature is introduced which need not be considered here. In chapter 5 of Angell on Water-courses, a number of instances are cited where at common law water-rights were declared to be the subject of sale, and although with us such rights are acquired by appropriation rather than by grant or prescription, as at common law, this certainly cannot affect the right of alienation. In Hurd v. Curtis, 7 Metc. (Mass.) 94, several owners of mill privileges had apportioned the water among themselves by a written agreement. By the terms of this instrument one W, the owner of a fulling mill, was entitled to a certain portion of the water for the use of his mill, "or for other machinery requiring equal power;" and it was held that the water-right was not inseparably connected with the building or site at which the water was then used, but that it might be used elsewhere. In De Witt v. Harvey, 4 Gray, 486, a deed had been given of land bordering on a canal supplying mills, "with the privilege of crossing to and from and around the same, and of erecting and using tenter-bars in some convenient place near the same, with the privilege also of drawing water from said canal at all times when it may be done without injury to the said mills, sufficient for the purpose of a fulling-mill and shearingmachine, but for no other purposes whatever." And it was held that the right to use the water for a fulling-mill and shearing-machine is not made appurtenant to the land grant, and also that such right was not extinguished by the dam being subsequently taken down by the owners of water power at that spot, and rebuilt in such a manner as to overflow the land granted by the deed; the court being of opinion that the rights of water were not appurtenant to the particular parcel of land granted, but that the owner might use the water at any place, or in any manner, so long as the rights of others were not thereby im. paired. When, therefore, the land became sub. merged, it was held that the right of the owner to use the water at any other mill, or upon any other parcel of land situated on the same dam, should be sustained. There is no controversy in the present case in reference to the mode and manner in which the right to the water may be conveyed, the contention extending further back; the claim being that the right cannot be conveyed at all, except with the land. The claim is not well founded. As we have seen, the right is the subject of property, and may be transferred accordingly; the sole limitation being that the rights of others shall not be injuriously affected by such transfer.

492, say that an information which charges in one count that the defendant stole an article belonging to one man, and an article belonging to another man, without alleging that the two articles were stolen at the same time, and by the same act, is bad for duplicity. Elliott, J., says:

It is well known that every larcenous taking is a trespass against the owner. An essential element of the crime of larceny is trespass, although the trespassmay be constructive, and not actual. Assuming, as we must, that the element of trespass is essential to the crime of larceny, we must ascertain what the implication is, where it is charged that there was a trespass against two or more persons. It seems clear to us that the implication is that the trespasses were separate and distinct. If Gunnison had sued the appellant for the trespass, and had alleged that the appellant carried away his (Gunnison's) property, and that of Parham also, we suppose it to be plain that Gunnison could not recover the value of Parham's property; for the implication would be that therewere distinct causes of action. If this is the implication, then the information is double. We can perceive no escape from this conclusion. We cannot infer, for the sake of upholding a conviction of a crime, that what would ordinarily be regarded as two distinct. trespasses is, in fact only one. The authorities require the conclusion we have suggested. In the case of Phillips v. State, 85 Tenn. 551, 3 S. W. Rep. 434, the goods belonged to different persons, but were taken on the same night from the same room, and it was held that there were two distinct offenses. In speaking of the trespass to the different owners, it was said: "The wrong to one of them was no wrong to the other, and, if the wrong to each was not a complete crime within itself, there is no wrong at all, because two acts involving the distinct rights and property of different individuals cannot be coupled in order to constitute one offense against the law." Possibly the language used is a little to broad, but restricting it to due bounds, nevertheless the principle declared decides the case against the State. Suppose, for the sake of illustration, that the appellant had been convicted of stealing Gunnison's property, and was subsequently indicted for stealing Parham's property, would the conviction be prima facie a bar to the second prosecution? To our minds it is clear that it would not be, although it is possible that, if it appeared that the property of both owners was taken in a single and indivisible act, the first conviction would bar further prosecution. If the first prosecution would not be a bar, and we think it would not be, it must be for the reason that prima facie there are two offenses. Resuming our consideration of the authorites, we quote from the case of Morton v. State, 1 Lea, 498, the following: "Every larceny includes a trespass to the person or property of the owner of the thing stolen. A larceny of the property of O'Brien was no trespass to the person or property of Corbitt, and vice versa." In the case of State v. Thurston, 2 McMul. 382, it was held that taking cotton belonging to three persons constitutes three distinct offenses. The doctrine is carried much further, possibly too far, in Commonwealth v. Andrews, 2 Mass. 409, for it was there held that the offenses were distinct, although there was a single act. But wellreasoned cases in California go to the same length. People v. Alibez, 49 Cal. 452; People v. Majors, 65 Cal. 138, 3 Pac. Rep. 597; People v. Yoakum, 53 Cal. 570.

The common-law rule, as stated in State v. Nelson, 8 N. H. 163, is this: "If one steal at the same time the goods of A, and also other goods of B, there are two distinct larcenies. East, P. C. 521." Some of the cases say that the rule is that "the plea of autrefois acquit or convict is sufficient wherever the transaction is the same." Copenhaven v. State, 14 Ga. 8; Holt v. State, 38 Ga. 187. Without going into an examination of the decisions of other courts in detail, we cite, as sustaining the doctrine that unless the transaction is indivisible and the same the offenses are distinct. Vaughan v. Com., 2 Va. Cas. 273; Teat v. State, 53 Miss. 439; Burns v. People, 1 Parker Crim. R. 182; People v. Saunders, 4 Parker Crim. R. 196; Reg. v. Morris, 10 Cox, Crim. Cas. 480. It is difficult to recon. cile the doctrine of our later cases with that asserted in Clem v. State, supra; but it is not important that we should attempt to do so in this instance; nor is it necessary to determine which is the better doctrine; for, assuming that the doctrine of Clem v. State is sound, it in no wise impeaches our conclusion; for it is there held that the crime must be the product of one and the same act, and conceding this, the information is bad. In the case of State v. Elder, 65 Ind. 282, it was said: "When the same facts constitute two or more offenses, wherein the lesser offense is not necessarily included in the greater, and when the facts necessary to convict in the second would not necessarily have convicted in the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act." Much to the same effect is the reasoning in State v. Hattabough, 66 Ind. 223, and Siebert v. State, 95 Ind. 471-480. See, also, Davidson v. State, 99 Ind. 366. We know that there are decisions hostile to the conclusion we here assert; but we are satisfied that our conclusion is right on principle, and sustained by the decided weight of authority.

annual premiums, with a condition voiding the policy on non-payment, is not an insurance from year to year, like a common fire policy, but the premiums constitute an annuity, the whole of which is the consideration for the entire assurance for life; and the condition is a condition subsequent, making the policy void by its non-payment. The time of payment is material, and of the essence of the contract; and a failure to pay involves an absolute forfeiture, which cannot be relieved against in equity. On the other hand, it has been held that a failure to pay, by reason of the intervention of war, does not avoid the policy.2

15. Excuses for Non-Payment of Assessments—When the Company is the Assured's Debtor. Where a mutual company has in its possession dividends belonging to a policyholder in amount more than sufficient to pay an accruing premium when it falls due, the company has the right, and is bound, if the premium is not paid to make such an appropriation, and cannot declare the policy forfeited, especially where it had long been the custom of applying such dividends to the of premiums. But where the payment company holds profits earned but not declared as dividends or otherwise, such profits cannot be treated as funds in the company's hands applicable to the payment of premiums. So it is no excuse for non-payment that the company owes the assured a less sum than required to cover the premium,

3

1 N. Y. Life Ins. Co. v. Statham, 93 U. S. 24; Insurance Co. v. Davis, 95 U. S. 425; Tait v. N. Y. Life Ins. Co., 1 Fil. 288; 2 Ins. L. J. 863; 4 Big. Life & Acc't Ins. Cas. 479; Worthington v. Charter Oak Ins. Co., 41 Conn. 382; Dillard v. Manhattan, etc. Ins. Co., 44 Ga. 119; Bird v. Penn. Mut. Life Ins. Co., 11 Phila. 485; 2 W. N. C. 410; Hancock v. N. Y. Life Ins. Co., 13 Am. L. Reg. (N. S.) 103; Abell v. Penn. Mut. Life Ins. Co., 18 W. Va. 400; O'Reilly v. Mut. Life Ins. Co., 2 Abb. Pr. (N. S.) 167.

2 Cohen v. N. Y. Life Ins. Co., 50 N. Y. 610; Sands v. N. Y. Life Ins. Co., 59 Barb. 557, 50 N. Y. 626; Mut. Ben. Life Ins. Co. v. Hillayard, 37 N. J. L. 444; Clemmitt v. N. Y. Life Ins. Co., 76 Va. 355; Statham v. N. Y. Life Ins. Co., 45 Miss. 581. See May on Insurance, §§ 350, 350a; article in 11 Am. Law Rev. 221.

3 Girard Life Ins. Co. v. Mut. Life Ins. Co., 97 Pa.. St. 15; Franklin Life Ins. Co. v. Wallace, 93 Ind. 7; Hull v. N. W. M. Life Ins. Co., 39 Wis. 397; Manhattan Life Ins. Co. v. Hoelzle, 8 Ins. L. J. 226; Ohde v. N. W. Life Ins. Co., 40 Iowa, 257; Dutcher v. Brooklyn Life Ins. Co., 3 Dillon, 87; Insurance Co. v.. Dutcher, 95 U. S. 269; Butler v. Am. Popular Life Ins. Co., 10 Jones & Sp. (N. Y.) 342.

4 Mutual Life Ins. Co. v. Girard Life Ins. Co., 101 Pa. St. 172, 179.

case of an order which conferred both sick and death benefits, the subordinate lodge owed the suspended member a sufficient amount on account of sick benefits to cover the unpaid assessment, the omission to pay which within the prescribed time resulted in the suspension. In a suit on the benefit certificate, the beneficiary contended that the sum due the deceased on account of sickness should have been applied by the lodge to pay the assessment without specific direction of the deceased, but the court refused to sustain this position, holding that there was no connection between assessments and dues; that the latter were subject to the exclusive control of the subordinate lodge which if paid according to regulations entitled the members to such benefits, while assessments were entirely controlled by the superior body and by the payment of which promptly entitled the member's beneficiary to share in the benefit fund.6

16. Excuses for the Non-Payment of Assessments-Act of God.-Acts of God, such as insanity or sudden illness, which render the assured delirious, are not recognized as legal excuses so as to relieve or excuse payment of premiums when they fall due. This is a well established rule in the law of insurance," and it applies with equal force to benefit societies. The reason of the rule is obvious. Inevitable visitations are not accepted in law as excuses for the failure to perform contracts and conditions in all cases indiscriminately. When the contract or condition requires personal service which can be rendered or performed only by the party personally, inevitable accident or the act of Omnipotent Power will excuse a failure of performance." But where a party absolutely assumes the performance of a feasible and lawful contract or condition, which may be executed or dis

5 Hollister v. Quincy Mut., etc. Co., 118 Mass. 478. 6 A. O. U. W. v. Moore (Ky.), 9 Ins. L. J. 539. See strong dissenting opinion by Pryor, C. J.

7 Klein v. Insurance Co., 104 U. S. 88; Thompson v. Insurance Co., 104 U. S. 252; Wheeler v. Life Ins. Co., 82 N. Y. 543, 16 Hun, 317; Howell v. Life Ins. Co., 44 N. Y. 276; Attorney-General v. N. A., etc. Co., 82 N. Y. 190; Hillayard v. Mutual, etc. Co., 35 N. J. L. 415; Carpenter v. Centennial Mut., etc. Ass'n, 68 Iowa, 453, 27 N. W. Rep. 456.

8 Hawkshaw v. Supreme Lodge Knights of Honor, 29 Fed. Rep. 770; Yoe v. Howard, etc. Ass'n, 63 Md. 86; 6 Am. & Eng. Corp. Cas. 641.

9 Wolfe v. Hanes, 20 N. Y. 197.

charged by charged by another, then no unforseen contingencies will relieve him from the consequences of an omission of performances.10 These principles have been deduced from a long and continuous line of authorities, and have received frequent recognition and application by the highest courts." However, where there is an agreement to the effect that if any thing should happen to prevent payment of the premium on the day specified, the policy should not thereby become void, and payment has been prevented by an act of God, such as sudden sickness, rendering the assured unconscious, if payment is made within a reasonable time thereafter, it will be sufficient, although the assured dies before the day of tender. 12 So where the rule is that in case of default if valid reasons are presented, the defaulting member may be reinstated upon paying assessment arrearages, and the member is stricken with apoplexy and thus prevented from paying within the time limited, in the absence of the requirement of good health as a condition to reinstatement, in an action on the policy by the assignee of the assured, the sufficiency of the excuse is a question of fact for the jury. But under a similar rule in a Maryland case it was held that sickness rendering the assured delirious was not a satisfactory excuse. It does not appear from the opinion whether good health was made a condition to reinstatement. this was a requirement by the rules of the association, the decision rests upon correct principles, and is in harmony with the last case; otherwise not.14 The rules of some societies provide that failure to receive notice may be regarded as a valid excuse, but when this is relied on, the burden of proving it rests upon the party offering it.15

13

If

17. Waiver and Estoppel.-The time of payment of premiums or assessments may be extended by agreement, 16 or it may be

10 Dexter v. Norton, 47 N. Y. 62.

11 Dennis v. Mass. Ben. Ass'n, 14 N. Y. State Rep. 605.

12 Howell v. Knickerbocker Life Ins. Co., 44 N. Y.

276.

13 Dennis v. Mass. Ben. Ass'n, 47 Hun, 338; Wheeler v. Mutual Life Ins. Co., 82 N. Y. 543.

14 Yoe v. Harvard, etc. Ass'n, 63 Md. 86, 6 Am. & Eng. Corp. Cas. 641.

15 Eaton v. Supreme Lodge Knights of Honor (U. S. C. C.), 22 Cent. L. J. 560.

16 Dean v. Ætna Life Ins. Co., 62 N. Y. 642; Bodine v. L., etc. Co., 51 N. Y. 117; Palmer v. Phoenix, etc. Co., 84 N. Y. 63.

waived by certain acts or omissions on the part of the company or society. The extension by agreement may be by parol and evidence to prove it is admissible.17 Evidence that the company, by previous transactions with the plaintiff and others, had extended the time of payment, would warrant a jury in concluding that the defendant was estopped from denying an agreement for extension, and insisting upon a forfeiture.18 But where a policy becomes void by reason of a violation of a condition other than the non-payment of the premium, a mere promise made thereafter, without consideration, to continue such policy upon the payment of additional premiums which are thereafter tendered to, but not accepted by the company will not be enforced. It is a rule of universal application that, where the practice of the company and its course of dealings with the assured, and others known to the assured have been such as to induce a belief that that part of the contract which provides for a forfeiture in case of non-payment of premiums or assessments within the time specified will not be enforced, the company will not be allowed to claim such forfeiture as against one in whom its conduct has induced such belief. 20 Conditions for the benefit of the company may always be waived before loss; 2 but more

17 Sheldon v. Connecticut Mut., etc. Co., 25 Conn. 207; Dilleber v. Knickerbock Life Ins. Co., 76 N. Y. 567.

18 McCraw v. Old North State Ins. Co., 78 N. C. 147. 19 Evans v. U. S. Life Ins. Co., 3 Hun, 587.

20 Nat. Mut. Aid, etc. Ass'n, v. Jones, 84 Ky. 110; Gunther v. N. O., etc. Ass'n (La.), 5 South. Rep. 65; 18 Ins. L. J. 112; Winindger v. Globe Mut., etc., 3 Hughes (U. S. C. C.), 257; Ruse v. Mut. Ben. Ass'n, 26 Barb. 556; Johnson v. Southern Mut., etc., 79 Ky. 403; Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Insurance Co. v. Eggleston, 96 U. S. 572; Insurance Co. v. French, 30 Ohio St. 240; Helme v. Insurance Co., 61 Pa. St. 107; Stylow v. Insurance Co., 69 Wis. 224, 34 N. W. Rep. 151; Appleton v. Insurance Co., 59 N. H. 541; Insurance Co. v. Anderson, 77 Ill. 384; Haw. ley v. Association, 69 Mo. 380; Insurance Co. v. Amerman, 119 Ill. 329, 10 N. E. Rep. 225; Home Protection, etc v. Avery (Ala.), 5 South. Rep. 143; Morrison v. Wisconsin Odd Fellows, etc., 59/Wis. 162; Davidson v. Old Peoples' M. B. Soc., 39 Minn. 303, 39 N. W. Rep. 803; Bosworth v. Western Mut. Aid Soc. (Iowa), 39 N. W. Rep. 903; Lewis v. Phoenix Mut. Life, etc., 44 Conn. 72; Mutual Life, etc. v. Raddin, 120 U. S. 183, 7 Sup. Ct. Rep. 500; Phoenix Mut. Life, etc. v. Hinesley, 75 Ind. 1; Watson v. Continental Mut., etc., 21 Fed. Rep. 698; Schwarzback v. Ohio Valley P. Union, 25 W. Va. 622, 666; McCraw v. Old North State Ins. Co., 78 N. C. 149; Ferebee v. N. C. Home Ins. Co., 68 N. C. 11. 21 Sims v. State Ins. Co., 47 Mo. 54; Froelick v. At

23

persuasive evidence should be required to justify a finding of a waiver after a loss occurs, yet notwithstanding a waiver may take place. 22 Continuing the policy in force and accepting payments of premiums thereon after they are due, with a full knowledge of the facts, will be held to constitute a waiver. 2 These rules are applied with equal force to benefit societies. 24 Estoppel is the true ground upon which the doctrine of waiver in these cases rests.25 In other words, the doctrine of waiver, as here applied, is only another name for estoppel. It can only be invoked where the conduct of the company has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured if the company was afterwards allowed to disaffirm its conduct and enforce the conditions. To a just application of this doctrine it is essential that the company sought to be estopped from denying the waiver claimed should be apprised of all the facts of those which create the forfeiture, and of those which will necessarily influence its judgment in consenting to waive it. 26 Hence, a company will not be held to be estopped from claiming a forfeiture where it accepts a premium after the death of the insured where the company is ignorant of such death.27 As we have already seen, forfeitures are not favored, either in law or in equity, and a provision providing for them in a contract will be strictly construed, and courts will find a waiver on slight evidence where the equity of the claim made under the Courts contract is in favor of the assured.28

las Ins. Co., 47 Mo. 406; Baldwin v. Chouteau Ins. Co., 56 Mo. 156; Schmidt v. Charter Oak Ins. Co., 2 Mo. 339.

22 Farmers' Ins. Co. v. Bourn, 40 Mich. 147; Smith v. St. Paul, etc. Co., 13 N. W. Rep. 355; Phoenix Ins. Co. v. Lansing, 20 N. W. Rep. 22; McCluer v. Home Ins. Co., 31 Mo. App. 62; Williams v. Insurance Co., 19 Mich. 451; Joliffe v. Insurance Co., 39 Wis. 111.

23 Froehlick v. Atlas Life Ins. Co., 47 Mo. 406; Sims v. State, 47 Mo. 54; Thompson v. Mut., etc. Co., 52 Mo. 469; Teutonia Life Ins. Co. v. Anderson, 77 Ill. 384; Haven v. Insurance Co., 111 Ind. 90, 12 N. E. Rep. 137; Phoenix Ins. Co. v. Lansing, 15 Neb. 494.

24 McDonald v. Order of Chosen Friends (Cal.), 20 Pac. Rep. 43; Yoe v. Howard, etc. Ass'n, 63 Md. 86; 6 Am. & Eng. Corp. Cas.641.

25 Elliott v. Lycoming County Mut. Ins. Co., 66 Pa. St. 22, 26.

26 Insurance Co. v. Wolff, 95 U. S. 326, 333.

27 Mobile Life Ins. Co. v. Pruett, 74 Ala. 487; Miller v. Union Central, etc. Co., 110 Ill. 102; Robertson v. Metropolitan, etc. Co., 88 N. Y. 541; Harris v. Equitable, etc., Ass'n, 64 N. Y. 196.

28 Lyon v. Travelers' Ins. Co., 55 Mich. 141, 146;

are always prompt to seize hold of any circumstance that indicates an election to waive a forfeiture.29 Where the practice of the company is such as to induce a belief that a forfeiture will be waived by receiving overdue premiums, a letter sent out with the following words printed thereon: "every policy is non-forfeiting," the company will be estopped from insisting upon a forfeiture on the ground that a subsequent premium was not paid on the day specified.30 So indorsing upon a card, giving notice of a day when a payment would fall due, "payment extended," has the same effect.31 Overdue premiums or assessments may be received conditionally without raising an estoppel. Thus, where the receipt of the premium is on the express condition that the member is alive and in good health at the date of the receipt, the company will not be bound unless the member is alive and in good health.32 However, in one case, the receipt on the certificate recited: "Received on condition that the member is in good health." Nothing was said about, nor was there any inquiry, as to the member's health. The company subsequently levied six assessments and unconditionally accepted them. The company was held to be estopped from setting up the forfeiture, although it appeared that the member was at the date of the conditional

acceptance in bad health.33 In one case the member relied upon the promise of the manager to draw upon him for assessments and was misled by the fact that such draft had been twice made upon him. He was suspended and could not be reinstated by reason of impairment of health. The association was held to be estopped from insisting upon

Young v. Life Ins. Co., 4 Big. L. & Acc't Cas. 1; Miller v. Brooklyn Ins. Co., 2 Big. L. & Acc't Cas. 35; Bouton v. Am. M. L. Ins. Co., 25 Conn. 542; Phoenix Ins. Co v. Lansing, 15 Neb. 494; Crane v. Dwyer, 9 Mich. 350; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Ripley v. Etna Ins. Co., 29 Barb. 557; Pulford v. Fire Department, 31 Mich. 458.

29 Insurance Co. v. Eggleston, 96 U. S. 572; Insurance Co. v. Norton, 96 U. S. 234.

30 Home Life Ins. Co. v. Pierce, 75 Ill. 426.

31 Homer v. Guardians' Mut. Life Ins. Co., 67 N. Y. 478. The fact that the insurer retains the policy as bailee of the insured does not constitute a waiver of the due payment of premiums. Howard v. Mut. Ben. L. Ins. Co., 6 Mo. App. 577.

32 Unsell v. Hartford Life, etc. Co., 32 Fed. Rep. 443; Sarvoss v. Western Mut. Aid Soc., 67 Iowa, 86. 33 Rice v. New England, etc. Society, 146 Mass. 248, 17 Ins. L. J. 615, 15 N. E. Rep. 624.

the forfeiture.34 In another, the member had become a delinquent. He transmitted to the company money in payment of all dues then demanded of him, but the amount was insufficient; however, it was retained by the company until after the member's death without any notice to the member as to the insufficiency of the amount. Such facts were held to constitute a waiver.35 Where membership is made to depend upon the continuance of membership in a particular organization, withdrawing membership from such crganization forfeits all rights in the society, and the subsequent levy and collection of assessments by the society does not estop it from denying membership; especially where the society had no knowledge of lapse of membership in the former organization.37 Where fraud exists there can be no waiver or estoppel.38 Waiver or estoppel is a question to be determined upon the facts of each particular case. Occasionally accepting assessments after they are due is held not to constitute a waiver.89 But it has been held

that making a new assessment while the member is in default in a former assessment waives the right to claim a forfeiture for the first assessment. 40 However, the contrary has also been held.41 Where a member forfeits his membership by failure to pay assessments, notice of which was mailed, but possibly not received, it was held that demand, receipt and retention by the company of subsequent assessments constituted a waiver of the forfeiture, even though no waiver was intended by the company." "It is not the intention of the insurer, but the effect upon the insured which gives vitality to the estoppel."43 Where the provision is

42

84 McCorkle v. Texas Ben. Ass'n, 71 Tex. 149, 8 S. W. Rep. 516.

85 Georgia Mut. Life Ins. Co. v. Gibson, 52 Ga. 640. 36 Burbank v. Boston Police Relief Ass'n, 144 Mass. 434.

37 Springnuer v. Ben. Ass'n, etc., 5 W. L. Bull (Ohio), 516.

38 Harris V. Equitable Ass'n Soc., 64 N. Y. 296; Davidson v. Young, 38 Ill. 145, 182.

89 Marston v. Mass. Life Ins. Co., 59 N. H. 92; Niblack on Mut. Ben. Soc., § 326.

40 Stylow v. Wisconsin, etc. Co., 69 Wis. 224, 19 Am. & Eng. Corp. Cas. 33.

41 Crawford County, etc. Co. v. Cochran, 88 Pa. St. 230; Mut. P. Life, etc. Co. v. Laury, 84 Pa. St. 43.

42 Tobin v. Western Mut. Aid Soc., 72 Iowa, 261, 33 N. W. Rep. 663. To same effect, see Bailer v. Mut. Ben. Ass'n, 71 Iowa, 689, 27 N. W. Rep. 720; Farmers' Mut., etc. Co. v. Bowen, 40 Mich. 147.

43 May on Insurance, § 507.