STANLEY 'D. NORTHWESTERN UFE ASS'N.
75
as alleged in the petition, and that the plaintiff did not by her own carelessness and negligence contribute to her injury, you will find for the plaintiff. But if you find the defendant was not guilty of such negligence, or if you find that the plaintiff so contributed to her injury, you will find for the defendant. If you find for the plaintiff you will assess to her such reasonable damages as you think, under the evidence, she is entitled to recover, and will compensate her for the injury. The amount of such damages is entirely with you to determine. There are some elements that enter into the damages in this case,-such as the pain and suffering endured, the expense of nursing and doctors' bills, time lost in sickness, diminished capacity for labor, and any permanent disability received by reason of such injury. Verdict for the plaintiff for $7,166.1
STANLEY v. NORTHWESTERN
LIFE
ASS'N.
(Oircuit Court, D. Kentucky. November 25, 1887.) 1. INSURANCE-ACTION ON POLICIES-PLEADING.
A petition on a certificate of insurance against a mutual benefit association, alleging that defendant was the legal successor of another such association which had issued the certificate. having received all its assets and effects, and assumed to pay all its liabilities, and to fulfill all its obligations and engage· ments, including the demand sued on, sufficiently states that the first associ· ation no longer exists, and that defendant is its legal successor, to maintain the action.
2.
SAME-)'[UTUAL BENEFIT INSURANCE-AsSESSMENT.
In the application assured agreed to pay" one assllssment" within 80 days from its date, when made as provided in the by·laws. The by laws provided that a member failing to pay his assessment within 80 days from its date should stand suspended, etc. Held that, by failure to pay anyone assessment within the time. prescribed, the certificate would lapse, but the payment of at least one assessment was not a condition precedent to recovery.
8.
SAME-NOTICE OF ASSESSMENT.
The by-laws also require the secretary to send a notice of each assessment to the member at his last known post·office. Heid. that the act of sending the notice is an essential part of the" notice" or "assessment, " and, unless done within a reasonable time after its date, the 30 days should not be estimated from such date.
At Law. On demurrer to the petition. Henry Burnett, for plaintiff. Green Gilbert, for defendant. BARR, J. This suit was brought against the defendant, although the beneficiary certificate was issued by the Nortbwestern Benevolent & Mutual Aid· Association, which is not a: party to this litigation. The WBLKBR,
lIn this OOS6, on motion for new trial, verdict was set aside, JACKsoN;J., sitting with J., because verdict was contrary to the evidence-it showing (lOntribuwry uegligence of the pla.inti1f. . . ..
76
FEDERAL REPORTER:
petition states, as a reason for this, "that the defendant is the legal successor of the Northwestern Benevolent & Mutual Aid Association, of Bloomington, TIl., having received all its assets and effects, and for a valuable consideration it assumed to pay all its liabilities, and fulfill all its engagements, and meet all its obligations, including the demand now sued on." The allegation that the defendant as a corporation is the legal successor of the first association must mean that the corporation has ceased .to exist, and that the defendant is its legal successor, and has taken its assets, and assumed its liabitities. This, I think, is sufficient to entitle plaintiff.to maintain this action. The certificate sued on is h:sued to Mrs. Stanley, in consideration of the membership fee of $10 paid, thEl warranted representations, covenants, and agreements made in her application, "and the further payment of one assessment within thirty days aner the date of such assessment, whenever made in accordance with the terms and conditions of the constitution and by-laws of the association, as they now exist or may hereafter be modified." It is somewhat difficult to ascertain the purpose of this recital of the consideration, and it is insisted that the payment of one assessment within the time specified is a condition precedent to a recovery. In a subsequent part of the certificateit is provided "that if the said Mrs. Alice Stanley shall not pay the assessment hereinbefore specified, on or before the time mentioned for the payment hereof, then this certificate shall be null and void, and of no effect;" The onlynssessments which are "hereinbefore specified" is the one assessment mentioned in the recital of the consideration for the issuing of the certificate. It may be that the word "one" is an error of the printer, and that it should have been "all" assessments; but the court must construe the certificate as it is, if it can be done. There are "no assessments heretofore specified" in the certificate, but assessments, if needed to pay benefits, are provided for in the by-laws of the association. The eighteenth by-law provides: "The constitution and bylaws are a part of the contract between the association and all of its members, and all certificates should be so interpreted, whether so expressed in the certificate or not;" and another by-law (5) provides "that every D,lember failing to pay his assessment, within thirty days from the date of said assessment, shall stand suspended from all benefits and privileges o,f the association." I conclude that, taking all of the provisions, if one aSsessll1ent is hot paid within the time as therein provided, the certificate will be null and void; but the certificate does not mean that, unless oue assessment is paid, there can be no recovery. It might be there would be no assessment made before the death of the member. By-law 5 directs how the assessment shall be made, and, as I read it, there is no assessment distmct from the notice, but the notice is to be in the form of an assessment. The secretllryis required to cause to be sent a nqticewhich is in the form ofan assessment to every member of the associatio ll at his last-known post-office. The act of sending this notice is, however, distinct from the notice, which is in the form of an assessment, addressed:toamember. It is insisted that a member must pay his assessmentwithiu;30 days after the date of the assessment, even though DO
V A1'i BUREN V. UNITED STATES.
77
notice is sent, else his certificate is null and void. I am inclined to the opinion, in view of the eighteenth by-law, that the 30 days should not be estimated from the date of the notice, which is really the assessment, unless the secretary has sent, or caused to be sent, such notice or assessment to the last-known post-office of the member within a reasonable time after the date of the assessment. It is made the dl:ty of the secretary to send members notice of the assessments, both by the constitution and by-laws of the association, and unless he does this it will be utterly impossible for the members to pay their assessments within 30 days after the date of the assessment. This view is strengthened by the peculiar langnage of the fifth by-law. Although it is true the act of sending the notice is distinct from the writing called a "notice," which is to be in the form of an assessment, the use of the word" notice" in this connection would mean to the ordinary member of the association that sending to the last-known post-office was part of and included in the notice menDemurrer overruled. tioned in this
VAN BUREN 'D. UNITED STATF..8.
(Diatrict Court, D. Indiana.· August 15. 1888.) 1. UNITED STATES COMMISSIONERS-ExAMINATION OF OFFENDER-WAIVER.
. Rev. St. Ind. 1881, § 1628, makes it the duty of a justice, in a criminal proceeding, to docket and hear the cause, and either acquit, convict, and punish, .or hold to bail the offender. Section 1634 requires a justice to recognize a defendant charged with felony, if upon the hearing he is of opinion that he should be held. Section 1639 provides that a justice shall not discharge a defendant against whom the proper offense has not been charged. but shall the proper offense to be charged, and recognize him to answer it, and also recognize any witness deemed important. These sections are made applicable to United States commissioners' examinations held in Indiana. by Rev. St. U. S. § 1014. Held, that they contemplate a trial and hearing, and a commissioner IS not bound to accept an offer of the accused to waive examination, but may suspend the examination or not, as he deems best for the public Interest. Where an affidavit for arrest is such in form and substance as fairly to call for the deliberate judgment of a United States commissioner whether or not a criminal violation of some federal enactment is charged, and he, in good faith, holding it sufficient, proceeds with the examination, he is entitled to the fees allowed by law, though his decision was erroneous. . Forging or unlawfully tampering with the tally-papers or other returns, which show, in addition to the number of votes CRSt for a member of congress, the number of votes cast for state officers at the same polls, is an of· fense against the federal election laws, of which the federal courts and com· missioners havej urisdictipn.
SAME-RIGHT TO COMPENSATION-ERRONEOUS DECISION AS TO JURISD'WTION.
8. .
SAME-FORGERY OF TALLY-PAPERS-FEDERAL COURTS-JURISD1CTION.
At Law. On demurrer to answer. Kealing & Hugg, for plaintiff. Emory B. Seller8,Dist. Atty., for theUnite<l
