accepting party put his letter to be forwarded into the hands of an agent, the contract is not concluded so long as the letter remains in the agent's hands, even where the agent is the postmaster. Thayer v. Middlesex Mut. Fire Ins. Co., 10 Pick. 326; Bryant v. Booze, 55 Ga. 438.

4. The acceptance must be unconditional and in accordance with the terms of the offer, and given within the time prescribed, if any, by the offer. Andrews v. Garrett, 6 C. B. (N. S.) 262; Jenness v. Mount Hope Ins. Co., 53 Me. 20; Bruce v. Pearson, 3 Johns. 534; Tuttle v. Love, 7 id. 470; Holland v. Eyre, 2 Sim. & Stu. 194; Thomas v. Blackman, 1 Col. 301; Eliason v. Henshaw, 4 Wheat. 225; Jordan v. Norton, 4 M. & W. 155; Routledge v. Grant, 4 Bing. 653; Wontner v. Shairp, 4 C. B. 404.

The most recent case illustrating this proposition is First Nat. Bank of Quincy v. Hale, U. S. Supreme Court, October term, 1879, which is as follows: (1) A firm in Chicago wrote to a bank in Quincy which was cashing drafts on them by their agent, one Melson: "Hereafter we will pay drafts only on consignments. We cannot advance money a week in actual advance of shipment. The stock must be in transit so as to meet draft same day or the day after presented to us. This letter will cancel all previous arrangement of letters of credit in reference to G. W. Melson. Please acknowledge receipt of this, and oblige." The bank replied by its cashier: "Your favor received. I note what you say. We have never knowingly advanced any money to Melson on stock to come in. Have always supposed it was in transit; have always taken his word. After this we shall require ship'g bill." The firm did not reply to this letter. Held, that the firm did not accept the terms of the bank and could not rely on its promise in the reply sent by it as a contract for the firm's protection and benefit to not advance money on drafts without a shipping bill. To give it that effect early and explicit notice to the bank was necessary. Adams v. Jones, 12 Pet. 213; McCollum v. Cushing, 22 Ark. 543; White v. Corlies, 46 N. Y. 468; Story on Cont., § 1130. Consequently where the bank cashed drafts of Melson which were accepted and paid by the firm, held, that the firm could not recover back from the bank the amount paid, even though the drafts were cashed by the bank without the presentment of shipping bills, and there was no stock in transit against which they were drawn. Where there is misunderstanding as to the terms of a contract, neither party is liable in law or equity. Baldwin v. Middleburger, 2 Hall, 176; Coles v. Bowne, 10 Pai. 526; Utley v. Donaldson, 94 U. S. 48. Where a contract is a unit, and left uncertain in one particular, the whole will be regarded as only inchoate, because the parties have not been ad idem, and therefore neither is bound. Appleby v. Johnson, L. R., 9 C. P. 158. A proposal to accept or acceptance upon terms varying from those offered is a rejection of the offer. Baker v. Johnson County, 37 Iowa, 189; Jennings v. Mount Hope Iron Co., 53 Me. 20; Chicago and Great E. R. Co. v. Dane, 43 N. Y. 240; Suydam v. Clark, 2 Sandf. Superior, 133. (2) After the letters were written the firm increased its

members, two new partners being taken in without the knowledge of the bank. Held, that if the letter did constitute a contract with the firm as it was when they were written, it did not with the new firm. There was no privity between the bank and the new firm. A new party could no more be imported into the contract and imposed upon the bank without its consent than a change could be made in like manner in the other pre-existing stipulations. The bank might have been willing to contract with the firm as it was originally, but not as it was subsequently. Without its assent a thing was wanting which was indispensable to the continuity of the contract. Barns v. Barron, 61 N. Y. 39; Grant v. Naylor, 4 Cr. 224; Bleeker v. Hyde, 3 McLean, 279; Taylor v. Wetmore, 10 Ohio, 490; Taylor v. McClung, 2 Houst. (Del.) 24; Hunt v. Smith, 17 Wend. 179; Cremer v. Higginson, 1 Mason, 323; Russel v. Perkins, id. 368.

5. An immaterial addition to an acceptance does not prevent the taking effect of the contract. Clive v. Beaumont, 1 DeG. & S. 397; Gibbons v. N. E. Met. Asylum District, 11 Beav. 1; Branson v. Stannard, 41 L. T. (N. S.) 474. The latter case was as follows: The agent for an intending purchaser of property, having made an offer for it, received in reply a letter from the vendor's agent accepting the offer, and fixing a time for signing the contract. The purchaser's agent not having attended within the time named, the vendor refused to complete. Held, that the contract was complete, for that the naming of a time for signing a formal contract did not constitute a condition of the acceptance. Dickinson v. Dodds, L. R., 2 Ch. D. 463, distinguished. If the letters constitute a complete contract it will take effect in spite of a statement in the acceptance that a formal contract will be drawn up. Bonnewell v. Jenkins, 38 L. T. (N. S.) 581.

6. Acceptance must be within a reasonable time, unless a time is limited in the offer. The next day will answer. Dunlop v. Higgins, supra. But four months after will not. Chicago, etc., R. Co. v. Dane, 43 N. Y. 240.

7. An offer may be withdrawn before acceptance. Routledge v. Grant, 4 Bing. 653; Honeyman v. Marryatt, 21 Beav. 14; 6 H. L. Cas. 112; Chinnock v. Marchioness of Ely, 6 N. R. 1; Hyde v. Wrench, 3 Beav. 334; Eskridge v. Glover, 5 Stew. & Port. 264; Faulkner v. Hebard, 26 Vt. 452; Beckwith v. Cheever, 21 N. H. 41; Burton v. Shotwell, 13 Bush, 271. And so an acceptance may be retracted before or simultaneously with its receipt. Dunmore v. Alexander, 9 Shaw & Dunl. 190. Story says (Cont., § 498): "The rule is that if the proposition be made in writing, and sent by the post, the person making the offer can retract by a subsequent letter reaching the other party at any time before an answer of acceptance is written and put in the mail. But as soon as such answer is placed in the mail the contract is completely closed as to both parties. Although, therefore, a letter containing a retraction of the offer be actually on the way at the time when the letter of assent is mailed, yet the contract is closed, unless such letter of retraction be received prior to

the mailing of such letter of assent." See Wheat v. Cross, 31 Md. 99; S. C., 1 Am. Rep. 28. As to retraction of acceptance, Story says (Cont., § 498): "The person assenting cannot, therefore, even stop his letter on the road after it is once mailed." In Byrne v. Tienhoven, C. P. Div., March 6, 1880, 42 L. T. (N. S.) 371, it was held that the withdrawal of an offer, made and accepted by letters sent through the post, is inoperative if the notice of withdrawal does not reach the person accepting until after the letter of acceptance has been posted, unless authority has been given to notify a withdrawal by merely posting a letter.

For a more extensive treatment of this subject, see note, 32 Am. Rep. 40.

THE WITNESS-BOX AND ITS OCCUPANTS.* N choosing the foregoing theme, as a thread on which the extent to which it would bear being dwelt upon. It would be absurd for a stenographer of limited experience to attempt to collate an exhaustive essay on the many types of the genus witness, whose statements it becomes our duty to record as faithfully as may be. Therefore, the most I purpose attempting to do is to dwell briefly upon the characteristics of the more ordinary types we meet with in court.

At the outset, however, I have a word to say as to the witness-box itself - the rostrum from which the truth, the whole truth and nothing but the truth is supposed to be delivered. It varies, as you all know, from a chair on the common level with attorneys and stenographer, to a raised platform, or dock, with chair, or in our older temples of justice, the elaborate snail shell where the unfortunate witness is perched, a target for all eyes, and wearing his heart upon his sleeve for daws to peck at. This latter device is generally "most tolerable and not to be endured," as Dogberry has it, for the stenographer being posted below and at the side, many important words seem to have a peculiar tendency to float off on the upper strata of air and are lost. I have heard of a few remarkable instances made more brilliant because of their variety -- where the official stenographer was actually consulted by the board of supervisors, when remodelling the court-house, as to his position, though I am not now prepared with names and dates sufficient for an affidavit. In such a case, the stenographer can of course avail himself of all the facilities that are practicable in regard to his position, taking care to preclude, among other things, the possibility of three or more attorneys, as sometimes happens, crowding in between himself and the witness, when the latter is testifying from a map or diagram. It is at such a time as that just referred to, when the stenographer is liable to be edified by some such dialogue as this: "From here to here, you say, is more than forty rods?" "Yes, I know it is; from here." "From here! you said from here, a minute ago.' "No, I didn't either. I said from here." Well, the jury will remember what you did say."

And at this point the juvenile Blackstone who is trying his 'prentice hand at taking notes for the examining counsel, nods to the stenographer and says, authoritatively, "You took that down, didn't you?"

But such episodes as the foregoing are, I think, decreasing in frequency as the presiding judges come to pay more attention to the securing of an intelligible record; interposing when necessary, as a general thing, and reminding the learned counsel that "From here to

*Read at the late Convention of Stenographers, by A. L. Woodward, of Syracuse.

on.

here" will shed but little light upon the question at issue when the case comes to be made up for appeal. witness-box, we, as stenographers, official and extraThe many men and women whom, when in the official, encounter professionally, it seems to me may all be grouped under the three heads of (1) Good, (2). Indifferent, and (3) Bad. In making this sweeping classification I speak stenographically, and with no reference to the interests of the parties at issue. As a rule, expert witnesses-people who, because of professional skill, are called upon to examine matters in dispute, or likely to become such-physicians, chemists, microscopists, etc., are, in my opinion, the best. Not necessarily the easiest; indeed, some of them are extremely difficult to follow, requiring the short-hand man to keep his highest pressure of steam constantly You all remember how the great Sumner, of California, and his partner, “took” Prof. Silliman verbatim, when he talked for several hours at the rate of 400 or 500 words a minute, I forget which now; but as Mr. Toots said, "It's really of no consequence." The good quality of this class of witnesses lies in the fact that they generally know what they are going to say, and say it in the best manner, without "backing and filling;" and if at all experienced "in the ways that are dark," and the questions that are vain, of the opposing counsel, they escape being tangled up on cross-examination. Being, as a rule, well-educated men, they express themselves in good language, and in their testimony we meet with the least number of those debatable sentences, where a comma will make sense one way, no comma will cause it to differ entirely and a semi-colon will introduce a third startling variation. But we do not always hear the most striking eccentricities of expression coming from the witnessbox. A distinguished statesman from this district, once, when irritated by repeated interruptious, addressed the court in this wise: "Your Ilonor, be I in order? If I be, I'll go on." But "what in tho captain's but a choleric word," etc.

Mere deliberation of utterance, as before remarked, does not make a witness easy to follow, and those versed in the art reportorial will admit the truth of the somewhat paradoxical statement that a speaker may be at once easy and difficult to take. Every experienced stenographer has in his mind the names of people who would be by no means called easy to take, but who yet convey to the scribe, dashing along after them, a feeling of pleasurable satisfaction at the flow of words fitly spoken; sentences terse, yet comprehensive; and every idea falling into place like tho separato stones of a mosaic. But I find that I am straying from the witness-box.

I do not intend to limit the list of good witnesses, reportorially speaking, to professional men. Indeed, men in all ranks of life may be met with, who, being well developed under the eyes, are likewise blessed with good sense and judgment.

Among the indifferent witnesses are those who cannot be made to understand, even by the combined efforts of court and counsel, that there being a time for all things, an opportunity will be afforded for their release, if possible, from all the contradictions in which a direct answer may seem at the time to involve them, but who persist in stopping to administer to the jury an antidote for every drop of poison.

Of this class is the cautious man, who seldom commits himself, and who is bound that noue of them 'ere lawyers shall come any game on him. I remember, while reporting an arson case in Vermont, a witness was testifying as to an incendiary fire which he found burning on the hearth in one of the rooms of the house. He was describing what the burning mass seemed to be composed of, when the presiding judge interposed with the suggestion that he probably meant combustible material. But the wily Green Mountain

boy avoided the pit-fall by remarking, "Wal, I dunno as I ever heerd 'o wood bustin'," while the learned judge leaned back and seemed to meditate on the dangers attending the use of big dictionary words.

Prolixity is not an agreeable feature of the indifferent witness. When one of the wordy kind, in love with sound of his own voice, and big with idea of having such an audience, pours forth an uninterrupted flow of words, while page after page slides out from under the stenographer's pen, then doth the latter personage rage inwardly at the wasting away of the gray matter of his brain over a farrago of immaterial stuff, which ho dares not omit lest perchance something pertinent to the issue might be lost.

Coming to the last class, the bad witness (again speaking in a stenographic sense), but little need be said. You all know him. He is ubiquitous. He it is, who, fresh from Fatherland, rejoicing in the possession of two dozen words of English, essays to give an account of an assault and battery occurring next door, and as he warms up over his theme, he pieces out the incomplete sentences with German, aided by graphic gesticulation, and at the conclusion of his narrative perchance the court says, "I didn't fully understand his story. Mr. Stenographer, won't you just read it?" Something deserves to be said of the irate female witness who pours forth her wrongs in a torrent of thunder, lightning and wind, that at its conclusion leaves the unfortunate short-handist a total wreck. with a very vague remembrance of any thing she said, except a reverberation in his ears of "Says I― says she says I-says she."

I have been able to mention here but a few as illustratious of the good,. the not so good, and the worst, among witnesses, but all will be able to call up from their own personal experiences examples brighter, and perhaps darker, than those I have enumerated. Our profession is becoming, year by year, more appreciated by the bench, the bar, and the public generally, and certainly with appreciation must come a desire to promote the best work of the competent stenographer, and render him more useful than ever; and this may be done, is being done, and will be done more thoroughly in the future by a little more consideration on the part of counsel as to how a question to a witness, an argument, or a request to the court, would look on paper. The best work of the stenographer at any time is not easy, but he is oftentimes hampered by annoyances which a little knowledge on the part of attorneys as to the capabilities of our art would prevent. To the leaders in the profession, men of large and varied experience some of whom are here to-day - almost every thing in the way of "taking" is possible, but it must annoy even such when one counsel continues an uninterrupted examination of the witness while another is making a formal objection to the court - his honor meanwhile ruling on the several grounds-while a third requests the stenographer, by a nod of the head, to note an exception. But as I have said, better appreciation of our services will in time lead to a style of examination fitter to be photographed by the swift pen, as compared with that which in the days of longhanded note-taking admitted of being penned, and revised, and put in shape for going upon the record.

STATUS OF BENEVOLENT SOCIETIES INSURING THE LIVES OF THEIR MEMBERS.

MISSOURI SUPREME COURT, NOVEMBER, 1880. STATE OF MISSOURI V. MERCHANTS' EXCHANGE MUTUAL BENEVOLENT SOCIETY.

An association described as the "Merchants' Exchange Mutual Benevolent Society," the object of which was stated to be to give financial aid to the widows and

children of deceased members and to such uses as the member should by will direct, where the funds were raised by initiation fees and assessments on the death of each member, held to be an insurance company, and under a statute authorizing benevolent societies to relieve the widows and orphans of members, but not to insure the life of any member for his own benefit or the benefit of any other person, held, not exempted from an obligation to comply with the general law on the subject of insurance.

ACTION to determine the right of defendant, an

association organized with the object, as stated in its constitution, "to give financial aid to the widows and children of deceased members, or to such uses and purposes as such member shall by his last will and testament direct," to conduct its operations without complying with the general statute of Missouri relating to insurance. The facts sufficiently appear in the opinion.

NAPTON, J. Two points arise in this case, both of which have been fully discussed at the bar. The first question is whether this company or corporation, defendant, is doing, and authorized by its constitution to do, an insurance business; and the second point is based upon an assumption, that though it may be so authorized and so employed, it is still not within the statute laws in regard to insurance companies, but expressly exempted by the Legislature from any such obligation to comply with the general law on the subject of insurance.

The first question seems to be of easy solution, whether regarded in reference to the definitions of insurance adopted in the text-books, or to specific judicial decisions. The origin of life insurance, as we are told by all writers on the subject, is traceable to benevolent motives. The object was to secure to the family of a person who was dependent on a salary or other income which ceased with his life, support upon the death of the insured by a small contribution of the annual income, and this, it is apparent, was a laudable and benevolent object. In France, we are told, life insurance was in early times prohibited, on the ground that it might operate as an incentive to those who would benefit by the termination of life to hasten such termination; but in England it was adopted by the judiciary long before its sanction by Parliament, upon an assumption, not unusual with those islanders, of a superiority in popular morals over their Continental neighbors; and in this country it followed the common law of England into such States as adopted that system, but has been so entirely regulated by special legislation here, and probably in all other States, that any reference to its original character becomes unnecessary.

The definition given by Bunyon, an English writer on the subject, is probably as complete as any to be found in the text-books. He defines life insurance to be that in which one party agrees to pay a given sum upon the happening of a particular event contingent upon the duration of human life, in consideration of tho immediate payment of a smaller sum, or certain equivalent periodical payments, by another." The Supreme Court of Massachusetts defined it to be "a contract by which one party promises to make a certain payment upon the destruction or injury of something in which the other party has an interest, whatever may be the terms of payment of the consideration or the mode of estimating or securing payment of the sum to be assured in case of loss." This definition of the Massachusetts court was given in a case in which the facts were identical, substantially, with the one we now have under consideration. The only question in that case was, whether the charter of a company called the Connecticut Mutual Benefit Company, was in effect a life insurance corporation. The name of the company was the Connecticut Mutual Benefit Com

pany," and in its constitution recited its object to be mutual benefit and relief in case of death as hereinafter set forth. The affairs of the company were intrusted to a board of directors, and its officers were a president, secretary, treasurer, etc. The funds of the company were raised by admission fees of members and assessments, as prescribed in the by-laws. The rate of fees was fixed according to certain enumerated classes, and those who paid the largest premiums were entitled to a proportionate increase of dividends. In the case we have under consideration the title of the corporation is "Merchants' Exchange Mutual Benevolent Society of St. Louis," the words "mutual benefit" being exchanged for "mutual benevolent." The object stated in the constitution of the society is: "To give financial aid to the widows and children of deceased members, or to such uses and purposes as such member shall by his last will and testament direct." The election of nine trustees was provided for, and appointment of the necessary officers, of president, secretary and treasurer. The funds were raised by initiation fees, and classes were arranged as in the Connecticut charter; in short, it is impossible to see any material difference in the two schemes. The opinion of the court was that the corporation or association was an insurance company, and came within the meaning of the Massachusetts statute. I am not satisfied that I could express the views of this court on the first point in the present case in a more condensed, comprehensive or pointed form than will be done by simply employing the language of the Massachusetts Supreme Court: "The contract made between the Connecticut Mutual Benefit Company," says Judge Gray, who delivered the opinion of the court, "and each of its members, by the certificates of membership issued according to its charter, does not differ in any essential particular of form or substance from an ordinary policy of life insurance. The subject insured is the life of the member. The risk insured is death from any cause not excepted in the terms of the contract. The assured pays a sum fixed by the directors, and not exceeding $10 at the inception of the contract, and assessments of $2 each annually, and of $1 each upon the death of any member of the division to which he belongs, during the continuance of the risk. In case of the death of the assured by a peril insured against, the company absolutely promises to pay to his representatives, in sixty days after receiving satisfactory notice and proof of his death, as many dollars as there are members in the same division, the number of which is limited to 5,000. The payment of this sum is subject to no contingency but the insolvency of the corporation. The means of paying it are derived from the assessments collected upon his death from other members, from the money received upon issuing other certificates of membership, which the by-laws declare may, after payment of expenses, be used to cover losses caused by the delinquencies of members, and from the guaranty fund of $100,000, established by the corporation under its charter. This is not the less a contract of mutual insurance upon the life of the assured because the amount to be paid by the corporation is not a gross sum, but a sum graduated by the number of members holding similar contracts, nor because a portion of the premiums is to be paid upon the uncertain periods of the deaths of such members, nor because in case of non-payment of assessments by any member, the contract provides no means of enforcing payment thereof, but merely declares the contract to be at an end, and all moneys previously paid by the assured, and all dividends and credits accrued to him to be forfeited to the company." 105 Mass. 149.

The fact offered to be proved by the defendant, that the object of the organization was benevolent, and not speculative, has no bearing upon the nature and effect of the business conducted and the contract made by

the corporation. In the constitution of the present society it is true that no guarantee bond of $100,000 is provided for, but by reference to article 15 of the bylaws it will be seen that a similar fund, though called by a different name, is provided for. That article is as follows: "Article 15. The entrance or initiation fee shall belong to and be invested as a permanent fund, each of the classes being kept separate on the books of the society; provided that the board of trustees are authorized to employ, from time to time, as they in their discretion may deem best, one or more persons to act as solicitors for the purpose of obtaining members to this society, and to pay such solicitor for his services out of the permanent fund, not to exceed the sum of $1 for each member so obtained. The interest on the permanent fund, with the amount assessed against each member on the death of a fellow-member, together with all gifts or income received by the society, shall be placed to the credit of the contingent fund and used for advances for members, in anticipating their dues on the death of a fellow-member, defraying the current expenses of the society, as may be directed by the board of trustees; but if at any time the contingent fund shall exceed the wants of the society for the purpose named, the trustees shall order the same to be invested in bonds."

This opinion of the Supreme Court of Massachusetts, if it be a sound one, would seem to be quite conclusive on the first point discussed in this case, but as the opposite view has been maintained with much confidence in the argument of counsel for the defendant, it may be proper to show by the decisions of other courts that it has been generally acquiesced in, indeed, I may say, uniformly adopted where there were no legislative enactments requiring a contrary construction. The case of Schunck v. Gegenseitiger, Wittwen und Waisen Fond, 44 Wis. 370, is merely an assumption on the part of counsel on both sides, in which the court concurred, that the corporation defendant was a mutual insurance company. The name as translated from the German was the Mutual Widows and Orphans' Fund. It was a corporation organized and acting by the authority of the Grand Lodge of the United Ancient Order of Druids. The grand lodge consisted of representatives from the several groves, which, together with the association, were under the jurisdiction of the grand lodge, and the court declared that the defendant " was obviously organized to secure the ends or serve the purposes of a mutual life insurance company." The description given by the court of the character and operations of this company, with unimportant changes as to details, would apply to the corporation defendant here. Among the provisions of the constitution and by-laws adopted for its management," says Cole, J., "is one which provides that, on the death of a member in good standing, there shall be paid to his surviving widow or heirs the sum of $800 as life insurance. The funds under the control of the defendant are made up chiefly of dues paid by members on admission into the order, and assessments levied upon and paid by the members on the death of a brother. The managing authority of the defendant is termed a directory, which is chosen by the groves from their members, each grove that has not more than seventy-five members being entitled to one member in the directory and to an additional member for each additional seventy-five or fraction exceeding onehalf that number. This directory conducts the whole management of the defendant, fixes the amount of the assessment to be paid by the members on notice of the death of a brother, issues through its corresponding secretary to all the groves a demand of payment of such assessments, and also determines whether the claims of the survivors of the deceased are just. Every member of a grove is obliged to contribute to the fund by paying his admission fee and assessments,

and is entitled to participate in its benefits. The admission fees and assessments are paid by the members to their respective groves, the groves paying over all dues to the directory." The point decided in the case has no connection with the present question under consideration, but it is an answer to the position taken in this case, and somewhat urged in argument that there was no contract provided for by the constitution and by-laws of the present society; that the officers were merely collecting agents and their performance of such voluntary duties could not be enforced. The court held that the groves were a part of the machinery of the corporation for collecting assessments, and were as much agents of the corporation as of the members paying, and their neglect to pay over the money collected could not affect the representatives of the deceased member, but that the corporation was liable, and judgment was accordingly given against it.

In Erdman v. Mutual Insurance Co. of the Order of Hermans' Sons, of Wisconsin, 44 Wis. 376, the title of the company sufficiently indicates its character. But the machinery for collection and contribution and distribution seems to have been essentially the same as in the case just referred to. In Dietrich v. Madison Relief Association, 45 Wis. 79, we have another corporation of the same class and managed in the same way. No question was made as to its being a mutual life insurance company. In a recent case in Kentucky (Kentucky Masonic Ins. Co. v. Miller, 13 Bush, 489), the same doctrine is recognized without question.

So in Masons' Benevolent Society v. Winthrop, 85 Ill. 537, there was no question raised as to the corporation being an insurance company, but the statement of the case shows no essential difference between it and the benevolent society which is defendant here. The covenant which was sued on consisted of a promise or agreement by the society to pay to the wife of the deceased member, on satisfactory proof of his death, a certain sum of money, depending on the class of which he was a member. The court say the organization is a kind of mutual benefit association, managed by a directory, and the expenses and losses of the society are paid by assessments made upon the members for such purposes. The court declares the certificate of membership in the nature of a policy of insurance on the life of the member. In Illinois Masons' Benevolent Society v. Baldwin, 86 Ill. 479, the corporation was treated by the court, without question, so far as it appears, as an insurance company.

A decision of the Court of Appeals in New York, affirming one of the Supreme Court, has been referred to, though not on the subject of insurance, but to show how little importance was attached by the judiciary of that State to names or ostensible objects of association when their organization and real effect was in conflict with the Constitution of the State. In the case of Governors of the Alms House, etc., v. American Art Union, 7 N. Y. 228, the corporation was professedly devoted to the encouragement and promotion of the fine arts, and the works of art purchased were distributed every year among the members by lot. The Constitution of the State had this provision: "No lottery shall hereafter be authorized in this State, and the Legislature shall pass laws to prevent the sale of lottery tickets within this State, except," etc. There was also a statute which provided that "no person shall set up or propose any money, goods or chattels, or things in action to be raffled for, or to be distributed by lot or chance to any person who shall have paid, or contracted to pay, any valuable consideration for the chance of obtaining any such money, goods or things in action." Notwithstanding the ingenious argument of Mr. O'Conor that the term "lottery" used in the Constitution was not designed to apply to games of chance, where no skill on the part of the player was

required, nor to any schemes where the object was not to raise public revenue, the court, with only a single dissenting voice among the eight judges, did not hesitate to declare the scheme within the constitutional prohibition as well as that of the statute.

The case of Commercial League Association of America v. People, 90 Ill. 166, has been referred to as conflicting with these decisions, but it cannot be so considered. That company was conceded to be an insurance company, but it was held exempt from the general statutes regulating insurance, because of a special exemption in a special statute. We have no such statute here, but we have statutes which are claimed to have the same effect, and this leads us to a consideration of the second point.

Assuming the defendant to be a mutual insurance company, it is claimed that our legislation in regard to corporations which are termed benevolent associations, and especially article 10, contains provisions which expressly exempt the defendant from the provisions of the general law in regard to insurance. This point is not without difficulties, arising from the very peculiar history of our recent legislation.

On the 8th of March, 1879, the following statute was passed: "Section 1. That chapter 70 of the General Statutes of Missouri, being article 8 of chapter 37 of Wagner's Statutes of Missouri, relating to benevolent, religious and educational associations, is hereby amended by adding the following sections thereto, to wit: Sec. 14. The associations and societies of the character referred to and mentioned in the first section of this act may also include in their corporate powers the privilege for providing for the relief and aid of the families, widows, orphans or other dependents of their deceased members, or for assisting such as may be sick or disabled, from the proceeds of assessments upon the members of such society or association. Sec. 15. Any such society or association heretofore or hereafter incorporated under the provisions of this act may avail itself of the benefits of the foregoing section by amendment to its constitution or articles of association in the manner prescribed by this act; all such societies or associations are hereby declared exempt from the operation of the General Statutes of this State in regard to insurance companies."

On the 19th of May, 1879, another act was passed, entitled an act to provide for the incorporation of benevolent, religious, scientific and educational associations, and of miscellaneous associations. The first section is not materially different from the corresponding section in the Revised Code of 1865, as found in Wagner's Digest, page 339. The third section is as follows; "Any association formed for benevolent purposes, including any purely charitable society, hospital, asylum, house of refuge, reformatory and eleemosynary institution, any association whose object is to promote temperance or other virtue conducive to the well-being of the community, and generally any association formed to provide for some good in the order of benevolence that is useful to the public, may become a body corporate and politic under this act, and incidentally such association may provide means wherewith to assist its sick or disabled members, or relieve or aid the families, widows, orphans or other dependents of its members who may die, without being thereby subjected to the operation of the general statutes of this State relating to life insurance; provided that nothing herein contained shall be construed to authorize any such association formed hereunder to insure the life of any member thereof for his own benefit or that of any other person." The concluding section of this act contains the following clause: "Section 14. All acts and parts of acts inconsistent with this act are hereby repealed, provided that nothing in this section shall be prejudicial to any existing