guardian appointed under the act in question is to serve "during such commitment," and his "duty" is declared to be "to conserve such estate for the purpose of maintaining such patient in the institution in which he may be legally confined." So it was beyond his power as guardian even to contract for the funeral, had he undertaken to do so. His function was the simple one of conserving the estate and applying it to maintenance of the patient in the hospital. He could neither contract other obligations to bind that estate, nor pay outside obligations created by the lunatic himself.

[2] It follows that the judgment below must be reversed; and as the case is before us on stipulated facts determinative of the present issue, judgment for the appellant defendant and against the appellees may be entered in this court. C. S. 2016, § 213a; National Bank v. Berrall, 70 N. J. Law, 757, 58 Atl. 189, 66 L. R. A. 599, 103 Am. St. Rep. 821, 1 Ann. Cas. 630; Schuster v. Arena, 83 N. J. Law, 79, 84 Atl. 723; Kendel v. Guterl, 84 N. J. Law, 533, 87 Atl. 84.

(93 N. J. Law. 213)

W. Holt Apgar, of Trenton, for appellant.
Ott & Carr, of Camden, for respondent.

MINTURN, J. The widow of Walter Antrim brought this suit to recover $300, the amount payable to her upon a death beneft certificate, issued by the defendant to the plaintiff's husband, while a member in good standing of the defendant association. Her right to recover is based upon the certificate of membership, which provides for such payment "subject to all the requirements and conditions of the constitution and by-laws."

Section 608 of the constitution and by-laws requires, upon the death of a member, an assessment of $1 shall be levied upon each surviving member, "and in case payment shall not be made within 30 days thereafter the delinquent shall forfeit all claims and membership to the association."

In this instance the assessment was levied on October 9, 1916, requiring payment before November 9, 1916. The notice was mailed to defendant "care of Pennsylvania Railroad, Camden, N. J." At the time it was mailed and until his death, the deceased member was an invalid away from his home, and unable to go to his place of business or to attend to his business. His wife, upon her return to the home on December 7th, received the notice and at once mailed a dollar to the association, through an agent. It was reJersey.ceived by the association the day Mr. Antrim died, December 9th.

ANTRIM v. TELEGRAPHERS' BENEV.
ASS'N. (No. 23.)

(Court of Errors and Appeals of New
June 20, 1919.)

(Syllabus by the Court.)

1. INSURANCE 751(2)-FRATERNAL ASSOCI

ATION-FORFEITURE-NOTICE.

The by-laws of defendant association required notice of 30 days to a member, of an assessment, and provided that for failure to pay the same within the 30 days a forfeiture would result. Held, upon a claim for the amount due upon a death certificate, where a forfeiture by reason of the nonpayment of the assessment, within the 30 days, that, in the absence of a prescribed method of service in the constitution or by-laws, the notice must be actually or personally served upon the member, as a condition precedent to the forfeiture of his personal and property rights.

(Additional Syllabus by Editorial Staff.) 2. INSURANCE 744-FORfeiture-BurdEN OF PROOF.

Forfeiture is not a favored policy of the law, and one insisting upon its application in a given case must show strict compliance with all the necessary conditions precedent upon which the exaction is based.

Appeal from Supreme Court.

Action by Helen E. Antrim against the Telegraphers' Benevolent Association, etc. Judgment for plaintiff, and defendant appeals. Affirmed.

[1, 2] The sole contention against payment of the amount claimed is that 60, instead of 30, days elapsed after notice of the assessment was mailed, and that the member and this claimant by this lapse of time forfeited all claim to the death benefit.

The insistence, it will be observed, is based upon the theory of a forfeiture. Forfeiture is not a favored policy of the law, and, to insist upon its application in a given instance, one who makes the claim must show strict compliance with all the necessary conditions precedent, upon which the exaction is based. Johnson v. Grand Lodge, 79 N. J. Law, 227, 75 Atl. 801, affirmed by this court în 81 N. J. Law, 511, 79 Atl. 333.

It will be observed that no method was provided for the service of the notice upon which the claim of forfeiture is based; that it never reached the member personally, and was received by his wife only two days prior to his death, when remittance of the assessment was at once made.

In such a status, the forfeiture of the personal and property rights of the deceased, in the absence of a distinct or specified method of service, provided by the by-laws or constitution, must be predicated upon actual or personal service of the requisite notice as sine qua non to the legal exercise of the right. Supreme Assembly v. McDonald, 59

(107 A.)

N. J. Law, 248, 35 Atl. 1061; Wachtel v. | previous trial of the same indictment was not Noah Society, 84 N. Y. 28, 38 Am. Rep. 478; objectionable as compelling defendant to tesMerriman v. Keystone Ass'n, 138 N. Y. 116, tify against himself, as, if it was inconsistent 33 N. E. 738; Courtney v. Masonic Ass'n with his testimony on the later trial, it was (Iowa) 53 N. W. 238; Benedict v. Grand competent to show his previous inconsistent statements. Lodge, 48 Minn. 471, 51 N. W. 371.

(Court of Errors and Appeals of New Jersey. 6. CONSPIRACY

In a prosecution for conspiracy whereby defendant obtained part of money fraudulently obtained from another, a requested charge that, if defendant was guilty of a conspiracy, he should be acquitted if the common object thereof was consummated more than two years before the indictment, was properly refused, as defendant's taking of a second share within two years amounted to a continuation of the crime.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

11. CONSPIRACY 48-REQUESTED CHARGE that the last division of the money thus ob-EVIDENCE. tained was made January 4, 1915, which was less than two years prior to the presenting of the indictment.

In such prosecution, a requested charge that, if one of alleged conspirators paid money to defendant as hush money, and not in execution of a conspiracy, defendant would not be guilty, was properly refused, where evidence was that money so paid was part of proceeds of conspiracy, as understood by defendant.

Error to Supreme Court.

Francis Gregory was tried alone on an indictment for conspiring to defraud, and from a conviction he brings error. Affirmed.

Howe & Davis, of Orange, for appellant. J. Henry Harrison and Andrew Van Blarcom, both of Newark, for the State.

Francis Gregory was tried alone, a severance having been ordered, and the evidence warrants the finding that the three defendants conspired to cheat and defraud Kase of $25,000; that in pursuance of this arrangement Hahn obtained from Kase $25,000, but and to Peaker that all he obtained was $20,falsely represented to the other conspirators 000; that this sum of money was divided more than two years before the finding of the indictment; and that subsequently the defendant, ascertaining that Hahn had withheld $5,000, demanded a further division and this was made January 4, 1915.

[1] The question to be considered is whether the crime was completed when the first division was made, or whether it continued until the final distribution in 1915. The crime charged was a conspiracy to cheat and defraud Kase of a large sum of money to be divided between the conspirators, which was not completely divided until 1915. We are of opinion that the crime was not completed until its fruits were finally divided, and that the acceptance of the last dividend was an overt act in execution of the conspiracy. If any one of the conspirators had withdrawn after the first division, the statute might be a bar; but the proof in the case shows that this defendant did not withdraw, but demanded and received the final dividend, which was an overt act in the consummation of the conspiracy.

BERGEN, J. The grand jury of the county of Essex, at the September term, 1916, of that court, presented an indictment against Simon Hahn, John Gregory, and Francis Gregory for conspiring to defraud Charles M. Kase of the sum of $25,000. The indictment charges, in substance, that on the 30th day of December, 1913, Hahn, representing himself as well as the two Gregorys, obtained from Charles M. Kase the sum of $25,000, on the representation that one Charles Peaker demanded that sum to compromise a threatened action by him against Kase to recover damages for adultery alleged to have been committed by him with Peaker's wife; that this representation was false to the knowledge of the two Gregorys and Hahn, and intended by them to cheat and defraud Kase; that Kase paid to Hahn the sum of $25,000, which the conspirators procured for Mr. Justice McKenna, speaking for the the purpose of a division. The proof shows Supreme Court of the United States in that, of this sum, $2,000 was paid to Peaker, Brown v. Elliot, 225 U. S. 392, 32 Sup. Ct. and the balance, to the extent of $18,000, 812, 56 L. Ed. 1136, approved the rule laid was divided between the conspirators; that down by Mr. Justice Van Devanter in Lonaonly $20,000 was divided because Hahn rep-baugh v. United States, 179 Fed. 476, 103 C. resented to his joint conspirators that that C. A. 56, which was: was the sum collected; that subsequently some of the other conspirators, discovering the fraud of Hahn, they, Francis Gregory being one, demanded that Hahn divide the $5,000 as a part of the result of the conspiracy, to which Hahn acceded; that on the 4th day of January, 1915, the residue of the $25,000 was divided among the conspirators, of which the defendant Francis Gregory received $1,250 for himself and John Gregory, and divided it equally be tween himself and John Gregory. The defendant, being convicted, has appealed to this court, and first argues that the statute of limitations applies because the conspiracy to obtain the money was completed on December 30, 1913, when the first division was made, and therefore, more than two years having elapsed after the money was obtained before the indictment was presented, the statute applies, notwithstanding the fact

"While the gravamen of the offense is conspiracy, the terms of section 5440 are such that there also must be an overt act to make the offense complete (Hyde v. Shine, 199 U. S. 62, 76 [25 Sup. Ct. 760, 50 L. Ed. 90]); and so the period of limitation must be computed from the date of the overt act, rather than the formation of the conspiracy. And where during the existence of the conspiracy there are successive overt acts the period of limitation must be computed from the date of the last of them of which there is appropriate allegation and proof, and this although some of the earlier acts may have occurred more than three years before the indictment is found."

This meets the precise point raised in this case, as the last overt act in execution of the conspiracy was the division of the balance of the fund, of which Kase was cheated, and, that act being within the two years before the indictment was found, the

(107 A.)

statute of limitations does not apply. Most and, if they were inconsistent with what he of the cases cited by the appellant relate to then testified to, it was perfectly competent statutes which do not require an overt act to show that he had at another time made to make the conspiracy a crime. statements inconsistent therewith.

[5, 6] It is next urged that the court erroneously refused to charge:

"If you find from the evidence that the money was extorted from Kase by threats of Hahn, but that such threats were made by Hahn acting alone and not because of any corrupt agreements between the defendant and Hahn as set out in the indictment, there should be a verdict for the defendant."

The case of State v. Herbert (Sup.) 105 Atl. 796, is not applicable, for there the conspiracy was to prevent the due administration of the law, by false testimony in aid of a petition for divorce filed by a wife, and it was held that the conspiracy was accomplished when the false evidence was given and the cause submitted to the court for determination, and while no opinion is expressed as to the soundness of that conclusion, This was properly refused because it that not being necessary, it is quite apparent eliminated every act by the defendant in furthat it cannot influence the present cause, for in State v. Herbert the crime was pre-of which he had knowledge, although he therance of a previous corrupt agreement senting to the court false evidence, and that had been accomplished when the evidence had been submitted to the court, while here the potent element was a division of the spoils, and until that happened the overt act was not concluded.

ant is that the indictment does not set out

might not have originally agreed to the combination. One who participates in the corrupt agreement with knowledge that it is corrupt, and that what he is doing is in furtherance of that agreement, would be ás

[2]. The second point made by the defend-gulity as if he had originally conspired, and the request which was refused does not Stewart v. Johnproperly state the law. son, 18 N. J. Law, 87. [7] The next point is that the court refused to charge:

any offense committed within two years after its finding; this depends upon whether the offense continued until January, 1915. The notion of the defendant that the conspiracy must be charged to have been formed within the two years before the indictment was found, otherwise the statute applies, is not sound, because the formation of the conspira cy is not a crime until there is some overt act in execution thereof, and, as we think the crime was not completed until the last division, then there was an overt act within the two years.

[3] The next point is that the court erroneously refused the defendant's attorney to ask of the witness Kase:

"And this money and this property came from him (his father), didn't it?"

And second: "And up to the time of his death it was not yours; it was his?"

The theory upon which the defendant claims that this was error is that the indictment charges the defendant with conspiring to cheat and defraud Kase, and they had a right to inquire whether the money was Kase's and where it came from. It was of no consequence where Kase got the money; it was his money which he was using to settle the threatened action, and it was immaterial from whence he obtained it.

[4] The next point is that the court permitted to be read and offered in evidence the testimony given by the defendant on a previous trial of the same indictment, and that the allowance of that proof as to the statement made by the defendant was compelling him to testify against himself.

There is nothing in this because statements made by a defendant are his own admissions made as a witness in his own behalf,

"If you find from the evidence that, up to the time that the money was gotten from Kase by Hahn, there was no corrupt agreement behad conspired to cheat and defraud Kase of the tween Hahn and the defendant whereby they money, there should be a verdict of not guilty rendered in favor of the defendant, even though they were given by Hahn the sums of money stated in the indictment after he had received the money from Kase."

This was properly refused because, if the defendant entered into the arrangement to divide the proceeds of the conspiracy with knowledge of the intent to cheat Kase, he became a party to it.

[8] The next point is that the court re fused to charge as requested that

"If you find from the evidence that Hahn seindictment, but that in so doing there was no cured this money by the threats set out in the proof of a corrupt agreement with the defendant, and that he knew nothing of the steps that Hahn, as attorney for Peaker, intended to take in securing the money from Kase, nor the amount that he intended to ask until after the amount had been agreed upon between him and Kase, the defendant would be entitled to an acquittal, even though you believe that the sum of money received from Hahn was greatly in excess of what his services were worth as a detective in the case."

This was properly refused because, even if the defendant did not know the amount to be extorted, he did subsequently know the amount that had been extorted, and participated in the first distribution, and afterwards demanded his share of the whole. In other words, he adopted the conspiracy to

cheat and defraud Kase, by participating in [ by the defendant, and, if paid by Hahn ei-
the overt act of dividing the proceeds of the ther to the defendant or Peaker, it was done
conspiracy.
in completion of the conspiracy.

We have examined the two other matters referred to in the brief, and find no legal error therein.

The judgment will be affirmed, with costs.

[9] The next point is that the court refused to charge that, before the jury could convict, all the allegations of the indictment sufficient to constitute a corrupt agreement to cheat must be proved beyond a reasonable doubt, and if the proof failed in any essential particular the verdict should be not guilty. The court had charged the jury that the defendant was entitled to the benefit of ROSEVILLE TRUST CO. v. MOTT et al. any reasonable doubt arising on the evidence, and that the burden was on the state to satisfy them, beyond such doubt, of the (Court of Chancery of New Jersey. June 10, defendant's guilt, and then properly defined what was a "reasonable doubt."

What was requested was that the state must prove beyond a reasonable doubt the necessary allegations sufficient to constitute a corrupt agreement to cheat. That is not correct; the state was bound to prove, not only the corrupt agreement, but the overt act, and, while the defendant might not have participated in the original corrupt agreement, still the jury could convict him if the state proved beyond a reasonable doubt his subsequent participation with knowledge of the corrupt agreement.

[10] The next point is refusal to charge, if the defendant was guilty of a conspiracy, there should be a verdict of not guilty, if the common object of the conspiracy was consummated more than two years before the indictment was found. This request was based upon the evidence which was that the defendant participated in a division of the fraud within two years. What the request amounts to is that, the court having instructed the jury as a matter of law that the taking of the dividend in 1915 was a continuation of the crime, nevertheless the jury could disregard that rule of law and find otherwise. We see no error to refuse

this.

The same question is raised in another form by another request to charge, which was refused, that if the jury should find that the conspiracy was cheating Kase and that object was consummated in December, 1913, there should be a verdict of not guilty.

There was no error in this refusal.

[11] The next point argued is that the court should have charged, as requested, that if the jury found from the evidence that the money of Hahn, one of the conspirators, was paid by him as hush money to buy the silence of the defendant and Peaker, and was not done in execution of a conspiracy to cheat, then the verdict should be not guilty.

This the court properly refused, because the evidence was that the money paid by Hahn was a part of the proceeds of the conspiracy, and so understood and demanded

(No. 40/757.)

1919.)

1. BANKS AND BANKING 314-TRUST COM-
PANY-LIABILITY OF DIRECTORS-RETAINING
DISHONEST EMPLOYÉ.

Directors of a trust company, who knew
that the cashier loaned money, contrary to the
by-laws, without advising the president, and
that he repeatedly made improper entries with
intent to conceal, a high misdemeanor under
Trust Companies Act, § 17 (4 Comp. St. 1910,
p. 5661), but nevertheless retained him against
the warning of the banking commissioner, vest-
ed by section 21 with supervision but not pow-
er of removal, are guilty of breach of duty, un-
der their oath provided for by section 12, and
liable for resulting losses, although they may
have been good business men and have acted in
good faith.

2. BANKS AND BANKING 314-LIABILITY
OF DIRECTORS-NEGLIGENCE OF EXAMINING

of

COMMITTEE.

Where the examining committee of the board
trustees of a trust company, in attempting
to comply with Trust Companies Act, § 14 (4
Comp. St. 1910, p. 5660), handled and counted
the cash and assets, but did not investigate and
report the value of securities carried on the
books, and were also negligent in examining the
accounts of depository banks, and in taking
the treasurer's statement as to them, the trus-
tees were liable for resulting losses on the
ground of negligence.

3. BANKS AND BANKING 314-TRUST COM-
PANIES INSOLVENCY-LIABILITY OF DIREC-
TORS-EXAMINING COMMITTEE-NEGLIGENCE.

In suit by commissioner of banking in be

half of an insolvent trust company against its
directors for losses through their negligence, the
examining committee of the board of directors,
in so far as failing to detect the treasurer's
manipulation of the general ledger, held not
guilty of culpable negligence, an honest effort
to do their duty having been shown, and the
thorough examination of an expert accountant
not being required as to them.
4. BANKS AND BANKING

314-TRUST COM-
PANIES INSOLVENCY-LIABILITY OF DIREC-
TORS
IN-

CONSTRUCTIVE NEGLIGENCE
EXPERIENCED DIRECTOR.

An inexperienced director, who was not a member of a trust company when it began business, though a member of the examining