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against the ticket speculators has thus far proven advantageous to Mr. Lester Wallack, in whos behalf Messrs. Howe & Hummel obtained a preliminary injunction preventing the sale of tickets in front of his theater. In opposition to his motion to make the injunction perpetual, the defendants urged that Mr. Wallack had not acted in good faith and that the license held by the speculators gave them authority to sell their tickets. Mr. Wallack's answer to these statements was a denial, and Judge Donohue rendered his decision, making the injunction permanent. The following is the decision in full:

"In this case the plaintiff claims that the defendants and others obstruct the way to the theater, and interfere with the proper right to which he is entitled as the occupant of the premises on which his theater is. The defendants do not deny the selling of tickets on the sidewalk in front of the theater, but content themselves with the denial of doing so in the vestibule or the entrance, or in front of it or in any part except as the license provides. It is substantially admitted that the defendants do claim the right to sell tickets for his theater, on the sidewalk in front thereof, and the first ground taken by them is that they have a license so to do from the mayor. The answer to this is simply to refer to the opinion of Mr. Justice Van Vorst, in Ely v. Campbell, 59 How. Pr. 333, in which this question is considered, and to state the conclusion arrived at, that the city has no right by license to appropriate any man's sidewalk or street, for any obstruction to him or the public. It does not add to the defendant's right; as he secondly claims, that he is selling what the plaintiff sold him. As well might the man who purchased goods from any wholesale dealer, claim the right to sell the goods as purchased on the sidewalk in front of the store from which they were purchased. The authorities referred to in the case cited, clearly demonstrate that the city has no power to license any business on the sidewalk or in front of any man's premiser without his consent. It is hardly necessary to discuss the question wether the use of the street to carry on any business not necessarily confined to the streets, is a hindrance to the public, as it is too plain for argument.

If the right exists for one employment not so necessary, it is for all, and people would hardly pay rent for offices if the sidewalk could be had for such uses. It was stated on the argument that the legislature passed some law on the subject, which was before the Governor, and the decision of this case was asked to be suspended until that was disposed of, as it might give the defendants the right to carry on the business sought to be restrained. What right the Legislature will leave to the citizens or property owners of the city might be difficult to say, and in this case we cannot speculate upon it; bu, as this case arose before any such act passed, it must be disposed of as the law is, and hold with Judge Van Vorst's decision that the public

and private owners have some rights. I must hold that the motion must be granted.

MARRIAGE-CONTRACT-EVIDENCE-COHABITATION-REPUTE-MODE

OF LIFE.

NEW YORK COURT OF APPEALS.

BADGER V. BADGER.

April 11, 1882.

Marriage may be established by the proof of cohabitation when such cohabitation has the elements of a matrimonial relation; and in trying an issue of fact as to the character of such cohabitation, evidence that one of the parties was reputed to be single is not competent; that he or she lived as a single person is competent.

The plaintiff claims dower in the lands of Jacob Badger, deceased, whom she alleges to have been her husband. The defendants deny the marriage, and so raise an issue of fact, which forms the vital point of the controversy. No formal or ceremonial marriage is proven, nor any express agreement between the parties, constituting such relation. The proof offered is that of cohabitation, continued for a long period of time, and characterized by general repute, and by conduct and conversation indicating, as is claimed, an intercourse rather matrimonial than meretricious. It is not our duty to solve the problem raised by the evidence, but some general uuderstanding of the facts is necessary to a proper appreciation of the questions of law which are submitted for decision. The decedent appears to have lived two lives. They ran parallel with each other for more than a third of a century, and without approach or collision. In one locality, and among his own relatives and friends, he seemed to be a bachelor, possessing considerable wealth, at the head of a respectable business, occupying rooms with his sister and with others during much of the period, and if not alway at home, yet not so frequently absent as to arouse suspicion or remark. In another locality in the same city, but perhaps in an humbler neighborhood, he appears as John Baker, living with the plaintiff as his wife, introducing her as such, called uncle by her nephew, and deemed father by her daughter, paying her bills and expenses, furnishing her with the food and shelter he shared, nursing her through severe and continued illness. Seldom absent at night, attending her mother's funeral as one of the family of mourners, the intercourse created no scandal, but reputed to be virtuous and respectable, and that of husband and wife. Other facts are stated in the opinion.

FINCH, J. It is over the cohabitation and its true character and meaning that the controversy arises. So far as we know, the association began when the plaintiff was young and the decedent in middle life, and continued until he fell dead an old man of seventy-six. It lasted without break or interruption. It survived the loss of youth and its attractions; it ran on through sickness, paralysis, and some degree of mental weakness; it showed no trace of the satisfied passion that tires of its victim and abandons her for new temptation; it did not change when the girl had grown into the matron and became deaf and lame; it stayed with the tenacity of love and duty, remaining patient and faithful until the end. It is argued with great force that if this relation was that only of lover and mistress, it approached strangely near to matrimonial truth and devotion, and gave to unlawful lust an endurance and virtue not common or expected.

The reputation attending this cohabitation in the neighborhood where it existed and was known, among those brought into its presence by relationship, business, or society, was that which ordinarily attends the dwelling together of husband and wife. It has been well described as the shadow cast by their daily lives. 1 Bishop on Mar. and Div. 438. In the general repute surrounding them, the slow growth of months and years, the resultant picture of forgotten incidents, passing events, habitual and daily conduct, presumably honest because disinterested and safer to be trusted because prone to suspect, we are enabled to see the character of the cohabitation and discern its distinctive features. It is for that

reason that such general repute is permitted to be proven. It sums up a multitude of trivial details. It compacts into the brief phrase of a verdict the teaching of many incidents and the conduct of years. It is the average intelligence drawing its conclusion. It would lead us without serious doubt to the true inference to be adopted, but for the apparent concealment indicated by the assumption of a false naine, and the persistent silence of the decedont among his own relatives. We have no certain explanation of these facts. We cannot tell why they existed. While not necessarily inconsistent with the fact of a marriage, and perhaps possible of explanation, we cannot deny that they belong more naturally to and are more easily explained by an illicit and clandestine intercourse than one honest and open and not needing disguise. They tended, therefore, to throw some doubt upon the character of the cohabitation, and to raise over it a question as to the legitimate inference to be drawn. To another alleged fact pressed upon us for the same purpose by the defendants we give little heed. It was said that this cohabitation was illicit in its origin, and must be presumed to retain that character until proof is given of a change in its object or purpose. To establish the fact the appellants go back to the girlhood of the plaintiff and recall an event which they claim reflects upon her purity. At the age of about seventeen she returns to her home with an infant of tender years. No husband comes with her or is known; there is no acknowledged father of the child; not a word of explanation seems have been made; and we are asked, for this reason, to infer that an illicit connection had existed between the mother and some person unknown. When this child was two or three years old the mother and Jacob Badger are found living together in Macdougal Street, keeping house, to all appearance as husband and wifo, and their cohabitation assuming at once, to all outward sceming, the characteristics which attended it to the end. Because of this alleged lapse of virtue on the part of the woman it is argued that the cohabitation was illicit in its origin. The proof does not warrant such a conclusion. It shows no connection whatever between the parties prior to the commencement of their cohabitation in Macdougal Street. Back of that, it is sufficient to say we have no information or evidence of any intercourse between them. We do not even know, except, perhaps, presumptively, that the child born before is the plaintiff's daughter. We certainly do not know who was its father, nor whether the offspring of an illicit intercourse or a matrimonial connection. At all events the testimony introduces Jacob Badger for the first time at the commencement of the cohabitation which is the subject of dispute. To say that it was illicit in its origin is to assume its meretricious character in the face of the evidence which tonds to show it to have been matrimonial, and so beg the question, since the cohabitation at the beginning is not shown to be other or different from its continuous character to the end. Prior to this we are without information and must not presume guilt where innocence is possible, and least of all indulge in mere guess that Jacob Badger was a party to the

wrong.

The rule that a connection confessedly illicit in its origin, or shown to have been such, will be presumed to retain that character until some change is established, is both logical and just. The force and effect of such a fact is always very great, and we are not disposed in the least degree to weaken or disregard it. Brinkley v. Brinkley, 50 N. Y. 198. Very often the character of the cohabitation is indicated by facts and circumstances which explain the cause, and locate the period of the change. So that in spite of the illicit origin the subsequent intercourse is deemed matrimonial.

But a

Fenton v. Reed, 4 Johns. 52; Rose v. Clark, 8 Paige, 574; Star v. Peck, 1 Hill, 270; Jackson v. Claw, 18 Johns. 346. change may occur, and be satisfactorily established, although the precise time or occasion cannot be clearly ascertained. If the facts show that there was or must have been a change, that the illicit beginning has become transformed into a cohabitation matrimonial in its character, it is not imperative that we should be able to say precisely when or exactly why the change occurred. Caujolle v. Ferrie, 23 N. Y. 90. While we have no hesitation about the rule, and shall be prompt to apply it in a case which demands such application, we do not see that the facts before us require it, since they fail to establish an illicit origin of the cohabitation as a seperate and independant fact. But the other facts remain and are en

titled to their due consideration. The disguise of a false name, known and assented to by both parties; the two lives so different and utterly unlike, running on at the same time and demanding adequate explanation, must be admitted to bear upon the character of the intercourse, and to have introduced into it possible elements of doubt.

We are thus enabled to see what the precise question of fact was. A continuous cohabitation for about thirty-five years between these parties was established. It was either meretricious or inatrimonial, and all the evidence properly admissible and touching that inquiry was such only as tended to solve the doubt.

The defendants were permitted to prove, under repeated objections and exceptions, that Jacob Badger was reputed to be a bachelor and unmarried. This proof was given by persons who were his friends and acquaintances, but who knew nothing of the plaintiff, were unconscious of her existence, and in total ignorance of her cohabitation with the decedent. The repute thus proven was not the product of the cohabitation, and did not tend to explain it, or solve its character. It could not by possibility bear upon it. It was not its shadow, for it cast none into the locality where these witnesses were. It was the shadow of a different and distant fact which in itself was not ambiguous, and needed no explanation to relieve its character of doubt.

That the decedent lived a single life without presence or appearance of wife or daughter, at his rooms when boarding with his sister, was a fact properly proved, and clearly admissible. But that among those who thus saw him, and before whom nothing had occurred to raise the question, he was reputed to be unmarried, was pure hearsay, explaining nothing since there was nothing to be explained. The life of John Baker, in Macdougal Street, was ambiguous in the sense that it might indicate an illicit intercourse or a matrimonial connection. To ascertain which, the shadow it cast upon surrounding society could be examined and studied usefully for the solution of the doubt. The life of Jacob Badger, in Joralemon Street, was not ambiguous at all, and needed no help to solve its character. It is indeed said that the purpose was to show a divided repute, and so contradict the reputation of marriage which, to be effective, must be general. But the general repute proved, and that required to be shown, does not and cannot go beyond the range of knowledge of the cohabitation. If within that range there is division as to the character of the fact, the divided repute merely continues the ambiguity and determines nothing.

In Clayton v. Wardell, 4 N. Y. 230, the divided repute was of a marriage among some friends, and a disreputable connection among others; thus negativing a general repute of connubial intercourse among those having knowledge of the cohabitation. In Commonwealth v. Stump, 53 Penn. St. 135, the reputation shown related to the parties and their association, and was that they were not married. In Vincent's Appeal, 60 Penn. St. 228, the husband lived two lives as here, and his repute as a bachelor among those who knew him by his true name was proved, but no question was raised over it, and it was not allowed to prevail as against the general repute of marriage in the locality where both parties lived. It was treated as utterly ineffective to produce a divided reputation. In Lyle v. Ellwood, 19 Eq. Cas. 98, the repute was divided, and that of marriage allowed to prevail, but it was among those cognizant of the cohabitation and having reference to it as a fact to be explained. We have been able to find no case where such evidence as was here given, upon its admissibility being challenged by objection, has been held competent. The evidence of reputation, when admitted, is an exception to general rules. It should never be allowed to stray beyond some useful or necessary purpose. In its application to cases of pedigree it is justified by the difficulties of proof, and confined generally to the family and relatives whose knowledge is assumed, and who have spoken before a controversy arisen. In its applicaton to the fact of marriage it is more than mere hearsay. It involves and is made up of social conduct and recognition giving character to an admitted and unconcealed cohabitation. But in its application to a man living in appearance a single life, it adas nothing to that fact, it creates no further contradiction to an intercourse carried on elsewhere under the appearance of matrimony, and throws no additional light upon it. It amounts to bare hearsay, and the unsworn declarations of persons knowing nothing of the facts in

controversy. In the present case twenty-three different witnesses were allowed to testify to the reputation of the decedent as a bachelor, not one of whom before his death, had seen or heard of the plaintiff, or known of her connection with him. We do not think this evidence was admissible. Its very volume and frequency indicates the dangerous effect it may have produced upon the mind of the court, and we cannot disregard the

error.

We think also that the letter offered in evidence, the body of which was in the handwriting of the decedent, and which was signed by the plaintiff as Mrs. Mary Baker, and addressed to her nephew, was improperly excluded. That the decedent wrote the body of the lotter, and was at least assenting to its transmission, is not denied. Although signed by her it was their joint act. It congratulated the nephew upon his marriage; it said "we wish you much joy ;” it added "we expected a visit from you and your wife;" it announced that a present was awaiting him, and that his mother called on a previous day; and its signature was a representation by the woman signing that she was a married woman passing by the name of Baker. The Dysart Peerage Appeal, H. of L. Cas. part 4, p. 512. The nephew swears that decedent afterwards asked him if he received the letter, and that he called and obtained the promised present. Here was an act which tended to characterize the existing relation and indicated in many ways its connubial character. The use of the plural "we" without unnecessary explanation, and assuming that it would be perfectly understood, is one such fact. If the connection was unhallowed and disgraceful, would the parties to it be likely to invite a newly married couple, beginning in their youth a life of virtue, to a scene of concubinage and lechery? And if they were shameless enough for that, would they have called the person addressed nephew, and sent the letter with a distinct assertion of marriage in its signature? It seems to us, as we read it, to indicate a conscious innocence in the relation of the parties sending it, and an entire confidence that the nephew already so understood its character. It was a joint act, occurring during the cohabitation, calculated to reflect light upon its character, and clearly admissable as a part of the res gesta. We think it was error to exclude it.

On

A further question arose over the evidence of a witness sought to be contradicted. One Whitbeck, called on behalf of the plaintiff, testified to a conversation with decedent when living in Bainbridge Street, and when they were sitting on the front piazza, in which the latter said he was a married man once, when he was a young man. The witness was cross-examined as to this conversation and then dismissed. At a subsequent stage of the trial he was recalled by the plaintiff and testified only to the date of his residence in Bainbridge Street, to the fact that Almira Badger lived there as his tenant, and that Jacob Badger did not reside there or stay there at night. cross-examination he was asked by defendant's counsel whether on an occasion when they were moving furniture he did not ask decedent, in the presence of Almira, whether he was married, to which he replied, "No, sir; I am a bachelor." The witness denied any such conversation. Later in the trial Almira Badger was called to testify to this conversation. Objection was interposed on behalf of plaintiff. The court admitted the evidence, "to contradict Whitbeck and not as a declaration of deceased." The limitation of the court seems to concede that the declarations of decedent were incompetent as such in behalf of the defendants. While it is now claimed that they were admissible as part of the res gestæ, it is quite evident that the ruling at the trial went on a different ground. In Van Tuyl v. Van Tuyl, 57 Barb. 241, it was held that the declarations of Taylor, made in promiscuous conversations, having no reference to Mrs. Taylor, that he was hot a married man, were properly excluded; that they did not refer to her status, and constituted no part of the res gestæ. This is a somewhat narrower statement of the rule than that given by the chancellor in Taylor's case, 9 Paige, 614. But the case here is different from both. It resembles the former in the peculiar fact of two lives running parallel with each other, and tending to contradictory inferences. Taylor seemed to be a married man at Harlem, where he dwelt with a woman whom he recognized as his wife, and appeared to be a bachelor at Rye, where he lived with his own immediate relatives. His declarations at the latter place were excluded. Without determining the propriety of that ruling, there is in the present case an additional

fact of very great importance in its bearing on the question of evidence. The plaintiff proved a long cohabita tion, matrimonial and respectable in its character, and relied upon the inference of marriage to be drawn from it. To rebut that inference and weaken its force the defendants proved a parallel life wearing the appearance of celebacy. To modify that fact, and break its force as founding a counter inference, the plaintiff proved the declarations of decedent that he had been a married man, but it would not do to let "the women," meaning the relatives with whom he was living, know it. This statement tended to explain consistently with an existing marriage the silence of the decedent to his relaties, and to take away the natural inference to which his life as a single man led. And thus the meaning of that life was challenged. The defendants then sought to restore the inference by showing the declarations of decedent to the same witness that he was unmarried. No objection was made to the effort by the plaintiff, but it failed by reason of the denial of the witness. Then Almira Badger was called and the declaration of decedent to Whitbeck proved by her. At this point an objection was interposed, but general, and assigning no specific ground. The declaration was certainly relevant and material. It tended to restore to the defendants the benefit of the inference to be derived from the decedent's bachelor life, as against the effect of the declarations proved by plaintiff. It bore, therefore, in the end upon the main issue, and cannot be treated as a collateral matter and immaterial so as to prevent contradiction, and make the answer conclusive. Being evidence relevant and material, it was admissible unless some rule of law excluded it. Platner v. Platner, 78 N. Y. 90. The objection taken at the trial pointed out none. On the argument here, two only are stated. These are that defendants were bound by Whitbeck's answer, which would have been true if the subject of inquiry had been collateral instead of bearing, as we have seen, upon the precise issue involved; and that Almira was an interested party and could not testify to a personal transaction between herself and deceased. It was not such. There was no transaction or conversation b tween her and decedent. She was merely a listener to one between him and the witness. Carey v. White, 59 N. Y. 336; Hildebrandt ▼. Crawford, 65 Ib. 107. We cannot say, then, that error was committed in the reception of this evidence, in view of the course of the trial and the character of the objections taken. Underlying the whole subject are grave questions as to what, in s case like the present, constitutes the res gesta, and the limitations which properly attach to declarations offered on that ground, which we do not undertake to determine since they were not sufficiently raised. Judgment reversed.

COLORADO.

(Supreme Court.)

PALMER V. RAY ET AL. AND THE CITY OF DENVER. 1. Taxation-Assessment-Sidewalks-Eminent Domain. -There is but one mode of taxation provided in the constitution of Colorado. This mode requires that all taxes must be "uniform upon the same class of subjects within the territorial limits of authority levying the tax," and assessed upon all property according to its just valuation.

Assessments upon abutting property to defray the costs of making sidewalks are a form of taxation. Street improvements, being mainly for the public benfit, it would contravene the rule of uniformity as well as that of valuation, to impose the whole burden, or an unequal portion of it, upon part only of the same class of subjects within the territorial limits of the authority levying the tax." Hence, neither under the taxing power, nor under the right of eminent domain, can the cost of making sidewalks be assessed against abutting property.

2. Police Power-Sidewalks.-Though the authority to regulate the relative rights, privileges and duties of individuals in society in respect to property or business is a mere police regulation, yet it may assume the form of taxation, and, under the police powers of municipal cor porations, the owners of adjacent lots may be required, at their own expense, to construct sidewalks, and the cost thereof may be made a lien upon such abutting lots

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Dwight Crowel, Clerk of the Court is still confined to his home in Ashtabula County, where he has been a sufferer for nearly three months. We are glad to know he is improving.

Law Librarian, Mr. Frank N. Beebe will probably spend the heated term among his possess. ions in northern Michigan. Assistant LibraAssistant Libra- | rian, Mr. James Bell, will spend his summer vacation in camp with the Governor's Guard at Deer Park.

Deputy Clerk, Orange Frazer, will spend his summer vacation in his canoe among the Thousand Islands. Sub-Deputy, W. W. Sharpe, will remain in charge of the clerk's office.

CORRESPONDENCE.

EDITORS OHIO LAW JOURNAL:

A proceeding before a Justice of the Peace, the other day in our city, revealed an opinion on the part of said Justice-and some investigation warrants the assertion that the opinion is not limited to him alone, but is held and exercised by others in his position and endorsed by not a few attorneys-that an adjournment of a trial in forcible detainer is entirely discretionary with the Justice, provided the adjournment or aggregate of adjournments do not exceed eight days.

The facts will afford a better understanding of the legal proposition. Summons in forcible detainer was returnable Mcuday, June 12th, 1882, at 10 A. M., parties appeared by attorney and continuance had by consent of parties at request of defendant. Friday, June 16th, 1882, at same hour, again parties appeared by attorney, defendant not present in person, and defendant's attorney asked a further adjournment-the re

mainder of the eight days mentioned in Sec. 6606, Rev. Stat.-upon the ground of absence of the "regular attorney in the case," "absence of the defendant," and "not ready for trial." Plaintiff objected to adjournment and insisted upon trial. No affidavit offered, witness sworn or other showing made for continuance, nor was a jury required, or the Justice actually engaged in other official business. The Justice granted the adjournment until Monday, June 19th, 1882, the entire eight days, basing his authority upon discretion and Sec. 6606 Rev. Stat. Was the magistrate's conduct authorized by law? We think not.

His authority can be found in neither of the sources he mentioned.

A Justice of the Peace's power is purely statutory, defined and limited by positive law. Harding v. Trustees, 3. Ohio 546, 549. Davis v. Bartlett, et al, 12, O. S. 530, 534, and the primary meaning of the word discretion as defined in the books is "the decision of what is equitable, judicious, or right in view of and guided by the circumstances of the case and the wisdom of the magistrate, unfettered by specific rules of positive law."

Where the manner of exercising a power or jurisdiction conferred upon a Justice of the Peace is prescribed and limited by statue, it must be confined to those limits, and cannot be exercised in any other mode, i. e. the trial magistrate can exercise no discretion where his duties are pointed out. McCleary v. McLain, 2, 0, S. 368.

ments.

The Legislature has undertaken to define the duties of Justices upon the subject of adjournSec. C534, Rev. Stat., provides for adjournments without the consent of either party and gives to the Justice a limited choice in three classes of cases, only upon the transpiring of either of two events, viz. "if a jury be required," or "if the Justice be actually engaged in other official business;" if either of these events occur upon the return day, then the maximum length of adjournment is fixed by: 1. That the defendant is not a resident of the County. 2. That he is in attendance under arrest. In these two classes the adjournment is limited to forty-eight hours. And 3. All other cases are classified together and the time limited to eight days, and

it must be born in mind that this power to adjourn where the parties do not consent can only be exercised either when time is required to obtain a jury, or the Justice is at the time otherwise officially engaged.

Sec's. 6535 and 6536, Rev. Stat. provides for adjournments by either party without the consent of the other, and in which the Justice has no choice or discretion whatever.

From the foregoing we must conclude that the Justice can legally grant an adjournment against the objection of either party for no length of time whatever, except as follows: 1. Jury required. 2. Justice engaged in other official business. 3. Upon the sworn statement of the party asking it, if required by the adverse party.

And that Sec. 6606 Rev. Stat. extends no additional power or discretion to the Justice, but is simply a limitation upon Sec's. 6535 and 6536, that when the showing has been made under oath for continuance as provided by those Sections, the adjournment shall be for the time mentioned therein, provided the action be not forcible entry and detention, but if so, Sec. 6606 steps in and says only eight days and not for thirty or ninety days, unless you give an undertaking for accruing rent.

The opinion of the Justice would make Sec. 6606 modify Sec's. 6535-6 and repeal Sec. 6534 at least as to actions of forcible detainer, which is scarcely possible, the sections were all enacted at the same Session of the Legislature in 1853,

and are harmonious.

Columbus, O., 19th June, '82.

T. H. R.

[If our correspondent would attempt to seek a Justification for the multifarious and bewildering orders and decisions of Justices of the Peace, we fear he would lose both heart and mind and in the end meet with the inevitable-utter failure.-EDS. LAW JOURNAL.]

MUTUAL LIFE ASSOCIATIONS.

SUPREME COURT OF OHIO.

THE STATE OF OHIO, ex rel., THE ATTORNEY GENERAL.

v.

THE STANDARD LIFE ASSOCIATION OF AMERICA.

1. Corporations organized under the laws of Ohio, are of two classes: 1st. Those organized

for profit, which must have a capital stock owned by stockholders. 2nd. Those organized for purposes other than for profit, consisting of members associated together for a lawful purpose. To the second class belong corporations formed under the provisions of Section 3630 of the Revised Statutes for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the family or heirs of deceased members.

2. Corporations formed for this purpose, though not subject to the provisions of Chap. 10, Title II of the Revised Statutes, relating to Life Insurance Companies, on the mutual or stock plan, are subject to all the general provisions of Chap. 1 Title II, which apply to corporations formed for purposes other than profit.

3. After such a company or association has been organized and incorporated, the members thereof are those mutually engaged in promoting the purposes of the organization, and who, by virtue of their relation to the corporation are entitled to the mutual protection and relief provided, or whose family or heirs are, in case of his death, entitled to the specific relief provided for them.

4. The members of such a corporation are the elective and controlling body, authorized to elect trustees and prescribe regulations for the government of the same, not inconsistent with the laws of the State. Neither the incorporators nor the trustees first elected are authorized to adopt a by-law or regulation providing that they shall hold office during life, and in case of vacancy, to fill the same by appointment.

5. Trustees are charged with the duty of faithfully executing the trust which the law and regulations impose on them. They are entitled to a reasonable compensation for the service rendered; but any plan or scheme by which money erwise, with a view to their individual profit, is collected from members by assessment or othand beyond what is necessary to defray the reasonable expenses of executing the trust, is a breach of trust.

6. A certificate of membership in such a corporation by which the member in consideration of his payment of a membership fee, annual dues and a pro rata assessment with his fellow members to pay a sum of money to the family or heirs of a deceased member, in consideration of which the association at his death stipulates to pay to his family or heirs a sum of money, graduated by the number of members in his class, is a contract of life insurance.

7. Such a contract of insurance to pay in case of a member's death "to himself or assignees" "to his estate," "to his executors or administrator," or to any person, whether a relation or not, who is not of his family or heirs, is against public policy, and void.

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