the amount of such assessment, and has failed to pay to the beneficiary the sum so collected.1

The rules of pleading at common law have been modified and to some extent abrogated, by the statutory provisions in the various states. These need not be discussed in this connection. The general averment that plaintiff has" fulfilled all the conditions" is not a sufficient averment that proofs of loss have been made in the way specifically required in the by-laws or contract.2

Where plaintiff claims under the by-laws of a benefit society, it is not sufficient to allege generally that there was a rule or by-law under which he was or became entitled, etc. The rule or its substance, as well as compliance with its provisions, must be stated.*

Where the original beneficiary brings an action upon a changed certificate, and any proper regulation of the society has been violated by such change, he must aver

1 Smith v. Covenant Mut. Ben. Ass'n, 24 F. 685. Where the declaration alleged in two of the special counts that the membership was sufficient to make the amount named in the certificate by the payment of two dollars each, it was held on demurrer, that these allegations reduced to certainty that which would without them have been uncertain. Gossett v. Union Mut. Acc. Ass'n, 27 Ill. App. 266.

2 Dolbier v. Agricultural Ins. Co., 67 Me. 180; Edgerly v. Farmers' Ins. Co., 43 La. 587; Quarrier v. Peabody Ins. Co., 10 W. Va. 507; Scheiderer v. Travelers' Ins. Co., 58 Wis. 13; Crescent Ins. Co. v. Camp, 64 Tex. 521; Schobacker v. Germantown Farmers' Mut. Ins. Co., 59 Wis. 86; Royal Ins. Co. v. Smith, 8 Ky. Law R. 521; Fayerweather v. Phoenix Ins. Co., 7 N. Y. St. Rep. 25; Sun Mut. Ins. Co. v. Holland, 2 Wills (Tex.), 391.

3 Irish Catholic Ben. Ass'n v. O'Shaughnessey, 76 Ind. 191.

So in an action for sick benefits to recover a balance alleged to be due at the rate of $3 per week, the mere statement that such an amount is "the sum paid to the sick of said society," is not sufficiently specific, and states no cause of action. Beneficial Society v. White, 30 N. J. L. 313.

Taylor v. National Temperance Relief Union, 91 Mo. 35.

This rule is changed by statute in Indiana where, in pleading the performance of condition precedent in a contract, it is sufficient to allege generally that the party performed the condition on his part. National Ben. Ass'n v. Bowman, 110 Ind. 355.

and prove the same.1 In California it has been held that plaintiff must set out in his complaint and prove performance of conditions contained in the application for membership, and the truth of statements and declarations therein contained. But the weight of authority is opposed to this view.3

§ 699. Answers.-The defendants cannot set up as a defence a champertous contract for. the collection of assessments made by the treasurer of the company with a person not a party to the suit. Where the defence

1 Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind. 189. A certificate of insurance on the life of a husband provided that the money should be " payable, in case of his death, to his wife, or her executors, administrators, guardians, or assigns, as directed by said member in his application, or to such other person or persons as he may subsequently direct, by will or otherwise." Held, that in an action by the wife upon the certificate, she was not required to allege that the husband had not directed the money to be paid to any other person, that being matter of defence. Laudenschlager v. Northwestern Endowment & Legacy Ass'n, 36 Minn. 131; 30 N. W. 447.

2 Gilmore v. Lycoming F. Ins. Co., 55 Cal. 123; Bidwell v. Connecticut L. Ins. Co., 3 Sawyer (U. S.) 261; Bobbitt v. Liverpool L. & G. Ins. Co., 66 N. Car. 70; s. c. 8 Am. Rep. 494.

8 See Redman v. Etna Ins. Co., 49 Wis. 431; Forbes v. American Mut. L. Ins. Co., 15 Gray (Mass.) 249; s. c. 77 Am. Dec. 360; Continental L. Ins. Co. v. Kessler, 84 Ind. 310; Union Ins. Co. v. McGookey, 33 Ohio St. 555; Commonwealth Ins. Co. v. Monninger, 18 Ind. 352; Herron v. Peoria M. F. Ins Co., 28 Ill. 235; s. c. 81 Am. Dec. 272; Mutual L. Ins. Co. v. Cannon, 48 Ind 264; Lounsbury v. Protection Ins. Co., 8 Conn. 459; s. c. 21 Am. Dec. 186; Penn. Mut. L. Ins. Co. v. Willer, 100 Ind. 92; Guardian Mut. L. Ins. Co. v. Hogan, 80 Ill. 35; s. c. 22 Am. Rep. 180.

In May v. Buckeye Ins. Co., 25 Wis. 291; s. c. 3 Am. Rep. 76, after stating what the application must contain, and that any false description by the assured, or omission to make known any fact material to the risk, shall render it void, the policy added, "but the company will be responsible for the accuracy of surveys made by its agents," it was held that the word "survey must here be construed to include the whole application, when made out by the agent, and the company is thus expressly precluded from taking advantage of his inaccuracy or omission in drawing the same, where the facts have been fully stated to him by the assured. It was said by the court that it would be intolerable in an action on an insurance policy to require the plaintiff to prove affirmatively in the first instance the truth of every statement usually contained in application for insurance.

4 Connecticut River Mut. F. Ins. Co. v. Way, 62 N. H. 622.

is that the certificate was issued in violation of the rules and by-laws of the association, a copy of such rules and by-laws should be set out in the answer. It is not sufficient for the pleader to give his own conclusions as to their effect.1

An answer is not sufficient which sets out that deceased failed to pay his dues after "legal notice." The giving of notice being a condition precedent to a member's liability, the facts showing that the notice provided by the charter had been given should have been set out.2

An answer stating that decedent failed to pay assessments within the time limited, after being duly notified, is not demurrable on the ground that it does not allege that the assessments were not in fact paid, as no person other than decedent was liable to pay the assessments.3

1 Gray v. National Ben. Ass'n, 118 Ind. 293.

2 Coyle v. Kentucky Grangers' Mut. Ben. Soc. (Ky.), 2 S. W. 676. In an action upon a certificate issued by a mutual benefit association, the complaint alleged that assessments had been paid according to an agreement between the assured and the association that they might be paid at any time within 60 days after notice, although the certificate provided that they should be paid within 10 days. The answer denied such agreement, and alleged that the assessments had not been paid according to the terms of the certificate. The reply averred that the defendant had waived the conditions of the certificate by permitting the certificate to stand uncancelled, and by receiving payment within 60 days after notice. Held, not a departure. Odd Fellows' Mut. Aid Ass'n v. Sweester (Ind.), 19 N. E. 722.

3 Gray v. Supreme Lodge Knights of Honor, 118 Ind. 293.

Where the defendant set up that the member insured had failed to pay his assessments during a certain year and plaintiff, by reply, denied such failure, and alleged that defendant had subsequently demanded, received, and retained annual payments, and had thereby waived the alleged prior breaches, it was held that the pleading of a waiver did not admit the failure to pay assessments, and was not inconsistent with the denial of such failure. Tobin v. Western Mut. Aid Soc., 72 Iowa, 261. See also Gray v. National Ben. Ass'n, 111 Ind. 531. Where the plea was that a stipulation in the application excepting death by suicide from the risk was proposed by the member to induce defendant to issue the certificate, well knowing that he would not be received as a member unless he so stipulated; that the certificate would not have been issued if he had no

§ 700. Evidence General rules applicable.—The law of evidence as applied to actions on insurance policies, and certificates of benefit societies, presents nothing peculiar. The rules excluding parol evidence to contradict a writing have seemed to receive important modification when applied to this form of contract. But if, under the supposed pressure of the equities of the case, or prevailing prejudice, new exceptions to the general rule have apparently been discovered or invented, it has been to give effect to great principles of justice without too strict a regard to mere technicalities.1

stipulation, and that he committed suicide, it was held not obnoxious to a general demurrer. Northwestern Ben. & Mut. Aid Ass'n v. Hand, 29 Ill. App. 73.

The charter of a mutual benefit insurance company provides that the board of directors may appoint a committee to make assessments, and that a member in default for 30 days forfeits his membership. It was held that before an assessment is due, or forfeiture can occur, it must affirmatively appear that the assessment was legally made, viz., by the board, or by the committee appointed by the board; and an allegation by the company that the assessment was "duly made," is not sufficient. American Mut. Aid Soc. v. Helburn, 84 Ky. 1.

1 Bacon Ben. Soc. & L. Ins. Sec. 456. In an action on a certificate issued by a reserve fund life association, whereby it agrees to pay a certain sum on the death of assured, from the death fund, or from moneys raised by assessment as provided, plaintiff is entitled to show that the death fund amounts to the agreed sum, or, if it does not, what amount an assessment would realize, and may have an order for the examination of an officer of the association, before the trial, to ascertain whether he can testify to those facts. Chaffey v. Equitable Reserve Fund Life Ass'n, 2 N. Y. S. 481.

The entry of an order upon the minutes of a mutual association, suspending a member for non-payment of an assessment, being only prima facie evidence of its legality, parol evidence is admissible to show that it was by order of an officer alone. Knights of Honor v. Wickser (Tex.), 12 S. W. 175.

After a member of a mutual benefit association had forfeited her membership by failure to pay an assessment within the time required by the certificate, the assessment was paid, and a receipt given therefor, which recited that the payment was made and received and the receipt given by the association, and received by the member, on condition that such member" is now in good health, and free from all diseases, infirmities, or weaknesses." It appeared that the member's health had begun to be affected about a year before the forfeiture by the natural decline of age, which resulted in her death soon after the receipt was given, but that she was subject to no disease, and that her only infirmities were those natural to old age. Held, that the evidence failed to show that the condition of the receipt was not fulfilled. Griesa v. Massachusetts Benefit Ass'n, 15 N. Y. S. 71.

Evidence of defendant's medical examiner is admissible to the effect that plaintiff had never been examined as required by the rules. But evidence of the number of policy-holders in the state who paid the mortality assessment in question, and to whom notices and extra assessments have been sent, the evidence not bearing upon the question whether the policies sued on were forfeited, is inadmissible.2

§ 701. Statements excluded.-A statement made by the member that he was suspended for the non-payment of an assessment is not competent evidence to prove that fact. In an action against a mutual benefit

1 Baltimore, etc., Employés' Relief Ass'n v. Post, 122 Pa. St. 428. Of decedent's withdrawal, though not pleaded. Cramer v. Masonic L. Ass'n, 9 N. Y. S. 356.

Under a notice by defendant, under the plea of the general issue, that it will insist on its defence that the certificate was procured by false statements to the medical examiner, and the concealment of material facts concerning the health of the insured, is sufficient to let in evidence of a particular disease with which the insured was suffering. Breisenmesiter v. Supreme Lodge Knights of Pythias (Mich.), 45 N. W. 977. The constitution and regulations provided that on examination of an applicant, and approval of the application by the supreme lodge, and the signing of the certificate of membership, and the forwarding of it to the subordinate lodge, the contract should be complete. Held, that the certificate having been forwarded to the subordinate lodge, and retained on the ground of fraud in the application, the beneficiary might recover without producing it, no evidence of the fraud being given by the corporation. Lorcher v. Supreme Lodge Knights of Honor, 72 Mich. 316; 40 N. W. 545. 2 Dial v. Valley Mut. L. Ass'n, 29 S. Car. 560. In an action against a mutual insurance company to recover benefits accruing from plaintiff's inability to work, receipts of plaintiff for the benefits as a former member of the association, held not admissible. Balt., etc., Employés' Relief Ass'n v. Post (Pa.), 5 A. 885. Where the circumstances attending the admission of deceased to the benefits of a certificate of insurance were fully shown by the testimony of the secretary of the insurer, a refusal to admit in evidence the minutes of a meeting of the insurer at the same time was not erroneous, Grossman v. Supreme Lodge of Knights of Honor and Ladies of Honor, 6 N. Y. S. 821; 16 Civil Proc. R. 215. The statements of an agent of a railroad company who has nothing to do with making out the pay-rolls, having no authority to deduct dues owed by an employee to the Employés' Relief Ass'n and his declarations that a deduction had been made without a previous showing that it had been officially notified that the employee was a member of the association were not admissible, plaintiff's inability to labor being the cause of action. Balt., etc., Rel. Ass'n v. Post, supra. 3 Lazenski v. Supreme Lodge Knights of Honor, 31 F. 925.