1900.

above, on or before November 1st, 1899, shall be entitled Statement. to and shall receive a discount of 25 per cent. upon the amount of said assessment."

On 4th January, 1900, the Board of Directors, by bylaw, duly confirmed the assessment as reduced. On 7th January the by-law was confirmed at a general meeting of the company.

Defendant did not pay the assessment, and plaintiffs sued; the case was tried in the county court before a jury, which found a verdict for defendant. Plaintiff ap

pealed.

This action was for an

C. P. Wilson for plaintiffs. assessment of $25, an annual assessment for 1899: See R. S. M., c. 106, ss. 30, 31, 40. In this case an undertaking was taken. The by-laws of the company were part of the policy and were put in by the defendant. Defendant on 11th July, 1899, applied for insurance and signed an undertaking. A policy was issued subject to the charter and by-laws of the company. The policy came from defendant's possession; he stated he considered himself insured up to October. The plaintiffs put in the policy, undertaking and a certificate of the secretary of the company. The party certifying was secretary when the certificate was given but not when the assessment was made. The minute book with the resolutions of assessment was produced on defendant's behalf. The Judge practically told the jury to find a verdict for defendant on the resolutions. He told the jury it was necessary for plaintiffs to comply strictly with section 33 of the Act, otherwise they could not recover. The Judge's notes show that he thought the company could not vary the provisions of the statute or waive such provisions by agreement with the insured. The Judge left the case to the jury without a proper direction as to the construction of section 33. The contract fixed the time

of payment. Calls were not required from time to time, 1900. but the by-laws provided for only one assessment and Argument. fixed the time of payment. The Judge's note was, "Cannot make by-laws saving themselves from provisions of statute." The Judge told the jury defendant could not waive statutory provisions. Defendant stated he had lost the notice of assessment; he knew it related to insurance and he supposed to the policy and made a demand of money, etc., he thought it was similar to the form produced. Section 33 of the Act does not require the time of payment to be set out in the assessment. The statute fixes the time. If it were necessary for the time to be specified it could be waived: Palmer on Company Precedents, vol. 1, p. 126; Hollister v. Quincy Ins. Co., 118 Mass. 478; Toombs v. Rochester Ry. Co. 18 Barb. 585; Phyfe v. Einer, 45 N. Y. 104; Susquehanna v. Elkins, 124 Pa. St. 496; Pratt v. Dwelling House Mutual Fire Ins. Co. 130 N. Y. 206. As to naming the place of payment: Lindley on Companies, 416; Newry Ry. Co. v. Edmunds, 2 Ex. 118. Some doubt is, perhaps, raised by Johnson v. Lyttle, 5 Ch. D. 687, but that turned on the defence of the articles of incorporation: Re Cawley, 42 Ch. D. 236. The by-laws fix the place and time of payment. There was ample evidence from which to infer a proper notice. Defendant should have produced it. He evidently received one referring to the policy and similar to the form produced. For the defendant it was argued the notice was insufficient, in not stating the period for which made. There was no doubt of defendant's understanding. It required $37.50 if paid before November, and payable at the head office. Evidence shows this was the form used. The certificate under section 37 of the Act is evidence of everything necessary to constitute a debt. It having been proved that the policy issued upon an undertaking and a certificate having been given that the amount was due by means of assessment, proves that

1900. the amount was due, which includes mailing. As to disArgument. count: The assessment was made, specific in terms, of The proviso for discount was severable.

five per cent.

It can be justified on the ground of saving expense. Only 75 per cent. of the losses was realized. If there were no power to give discount an attempt to do so does not affect the call. Giving discount is a recognized method of hastening collections and saving expense. The evidence does not show that the amount assessed was not necessary for losses and expenses.

H. M. Howell, Q. C., for defendant. The assessment was 75 per cent. of 5 per cent. on those paying before 1st November and 100 per cent. on those paying after. The statute requires it to be in proportion to the amounts of the notes: see s. 35. Victoria Mutual Ins Co. v. Thomson, 9 A. R. 631; Beaver v. Trimble, 23 U. C. C. P. 252. The assessment is to be on premium notes: ss. 33-5. The policy may be assigned and the assignee not liable. There was no assessment on premium notes. Members were assessed, not premium notes. The notice showed it was not necessary to collect the whole $50. It is not notice of an assessment. The reserve fund took 25 per cent. The by-laws show it should not be more than 10 per cent. Look at the application; the defendant agreed to pay an assessment which must be according to the statute. The assessment was excessive and unequal; it did not set forth the period over which it extended. By section 33 the notice must be of an assessment. The notice did not show the period over which the assessment extended. This could not be done unless the assessment fixed the period. The notice was not really one of assessment. There were two other notices; they came from the custody of the plaintiff company; one stated that the assessment notice had been sent on October 1st. The Act requires certain things to be done, it was a statutory direc tion. Even if there were a contract to pay the amount of

There was no con

1900.

an assessment there must be notice. tract to pay without notice. In the contract to pay on 1st Argument. of October the parties assume there will be sufficient notice. The statute evidenced public policy and must be complied with. As to the form of assessment and notice: Johnson v. Lyttle, 5 Ch. D. 687; that case showed the resolution must set out the essentials, one of which was the time over which the assessment extends. There was no evidence of notice in fact. The policy was forfeited if payment were not made in a certain time. There was no action unless plaintiffs sue in proper time, but the parties cannot recover more than the company collects. There being no real contract of indemnity there was no consideration. When defendant signed the undertaking he would not know of the by-laws; he should not be deemed to have waived them without knowledge. Article 11, s. 8, provides for notice giving all loss or losses and the name of the party sustaining loss, which was not done. This was a condition precedent: A. & E. Ency. of Law, 2nd ed., vol. 15, pp. 1086-9. Article 12, s. 1,of by-laws requires an agreement to pay assessments, not to exceed five per cent. of the amount insured. This was not five per cent. annually. Parties understood this was limited to five per cent. for the whole term of insurance: Duff v. Canadian Mutual Ins. Co., 6 A. R. 251; Hill v. Merchants' Ins. Co., 28 Gr. 561; Storms v. Canada Farmers' Mut. Ins. Co., 22 U.C.C.P. 75; Gore District Ins. Co. v. Simons, 13 U.C.R 555; Re Cawley, 42 Ch. D. 209. The certificate was no evidence of notice; such a provision was in contravention of common law rights and must be construed strictly.

C. P. Wilson in reply. As to certificate: Holt on Insurance, 539. The assessment was not unequal as the discount was offered to all alike. For form of call, see Palmer's Company Precedents, p. 672. Victoria Mutual Ins. Co. v. Thomson, 9 A .R. 620, shows assessments were similar to calls. Policy holders were members and they.

1900.

one a year.

delegated discretion to directors: Holt on Insurance, 536. Argument. The by-laws say assessment should be annually and only The assessment was for 1899, which sufficiently denotes the period. It was not shown there was any assignment. It is not sufficient to suggest a possibility. The resolution reducing the amount was made after the assessment was made, and it may have been considered originally that a larger amount was necessary for losses than was afterwards found necessary. The notice showed the period for which the assessment was made; it was annual for 1899. As to consideration: Kerr on Frauds, 366. A list of losses was not a condition precedent. There was no objection to notice before action.

The

KILLAM, C. J.-I think the assessment sued on void, as being in contravention of section 35 of the Act. The resolution must, it seems to me, be read as a whole. It was one resolution, passed as one act. The effect was to assess 75 per cent. of 5 per cent. upon those who should pay on or before 1st November, 1899, and the full 5 per cent. on those who should pay after that date. statute requires the assessment to be upon premium notes or undertakings in proportion, always, to the amounts of such notes or undertakings. This was to be payable in thirty days after notice of assessment. The company had no power to impose penalties for default. Under section 34, the notice of assessment should show the time when it is payable. The notice relied on stated, so far as it fixed the time, that the amount was due on or before October 1st, 1899. A subsequent notice showed that this was mailed October 1st. The plaintiffs' contention is that the by-laws made the assessment payable on the 1st day of October, irrespective of notice, and that the defendant contracted to pay on that date by agree ing to be bound by the by-laws. I doubt very much whether the application should be construed as a con