had been forfeited by reason of Ibs' failure to pay the assessment levied to meet the 145 claims. To this the plaintiff replied that most of these claims had been paid out of the mortuary fund during the quarter, and that the balance of cash on hand March 31 was sufficient to have paid all the other claims. Because of these facts she claimed the assessment of May 2 was both unnecessary and void.

In answer to this the company insisted that the fund was maintained as a source from which to make prompt settlement of claims, but that such advances did not prevent the levy of the quarterly assessment, which, when collected, was to be used in replenishing the fund. In support of this defense it offered a certified copy of the decree of a Connecticut court, in the case of Dresser v. Hartford L. Ins. Co., in which it was adjudged that the company had the right so to maintain and use the fund. The plaintiff objected to the admission of this decree on the ground, among others, that she was not a party to the proceeding in which it was rendered. The court. sustained her objections, excluded the decree, and directed a verdict in her favor. That ruling having been affirmed by the supreme court of the state (121 Minn. 310), the case was brought before the Federal Supreme Court upon a writ of error and the sole question before the Court for consideration was as to whether the Minnesota courts failed to give full faith and credit to the judicial proceedings of Connecticut, as required by Art. 4, § 1 of the Constitution.

The Court in that case, in an opinion delivered by Mr. Justice Lamar, said:

"The plaintiff insists, however, that she was not a party to the proceedings in which the decree was entered, and, therefore, not bound by its terms. But in this regard she was in privity with her husband. Manifestly the question as to the ownership and proper administration of the fund could not be left at large for collateral decision in every suit on certificates held by those who had failed to pay the assessment. For, whether the members of the 'Safety Fund Department' are regarded as occupying a position analogous to that of shareholders, or are treated as beneficiaries of trust property in the hands of the company, as trustee, in the state of Connecticut, the courts of that state had jurisdiction of all questions relating to the internal management of the corporation. It was for the court of the state where the company was chartered and where the fund was maintained to say what was the character of the

members' interest-whether they were entitled to have it distributed in cash, or used in paying the next assessment, or retained as a fund for the prompt settlement of claims, with the right and duty on the part of the company, as their trustee, to replenish the same by collections from succeeding assessments. But is was impossible for the company to bring a suit against 12,000 members living in different parts of the United States. It was equally impossible for the 12,000 members to bring a suit against the company to determine the questions involved. Under these circumstances Dresser and thirty other members, holding certificates, brought suit 'in their own behalf and in behalf of all others similarly situated.'

That allegation, of course, would not by itself determine the character of the proceeding. For, in order that the decree should be binding upon those certificate holders, who were not actually parties to the proceeding, it had to appear that Dresser and the other complainants had an interest that was, in fact, similar to that of the other members of the class, and that it was impracticable for all concerned to be made parties. But, when such common interest in fact did exist, it was proper that a class suit should be brought in a court of the state where the company was chartered and where the mortuary fund was kept. The decree in such a suit, brought by the company against some members, as representatives of all, or brought against the company by thirty certificate holders for 'the benefit of themselves and all others similarly situated,' would be binding upon all other certificate holders.

Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuation by death or otherwise, that it would not be possible, without very great inconvenience, to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court. The legal and equitable rights and liabilities of all being before the court by representation, and especially where the subject-matter of the suit is common to all, there can be very little danger but that the interest of all will be properly protected and maintained.

It is said, however, that even if the decree determining the status and use to be made of the mortuary fund was binding upon members and beneficiaries, it could not be offered in evidence in a suit on a policy of insurance, since the cause of action and the thing adjudged in the two cases were different,-one involving the status of the fund and the rights of members therein, while the present case related to the right of a beneficiary to recover on a policy and the power of the company to declare a forfeiture. But the defendant's contention that the policy had lapsed because of the failure of Ibs to pay the assessment, and the plaintiff's reply that the assessment was void because the mortuary fund was sufficient to meet call 127, raised an issue as to the right of the insurance company to levy the assessment. On that issue the Connecticut decree was admissible, since it adjudged that the company had the right to make advances to pay claims, and could subsequently collect the amount of such claims by an assessment levied as in the present case. Its right so to do having been determined by a court of competent jurisdiction, the decree was binding between the parties or their privies in any subsequent case in which the same right was directly or collaterally involved."

As this paper has dealt principally with the Green case, and already unpardonably long, it will be brought to a close by quoting the concluding paragraphs of the oral argument, stenographically reported, in that case, as follows:

"Here is the situation applicable to this case: The courts of the home State commanding the corporation to collect these rates of assessment, the courts of an adjoining State restraining it from doing what the courts of its home State have commanded! Assume that 50,000 members in New York should obtain an injunction against this Massachusetts corporation, restraining it from collecting from them these rates of assessments; and then carry the assumption further and suppose that members of this Order in Massachusetts should file a bill in equity in the courts of Massachusetts to restrain this corporation from extending such an unwarranted preference to the New York members, as commanded by the injunction of the courts of New York. Can there be any question as to the result? Enjoined and restrained by the courts of the home State from doing the acts commanded

by the courts of a sister State! Such confusion and such clashing of judicial authority, we submit, cannot be tolerated in an orderly administration of American jurisprudence.

We are not asking the application in this case of any new rule; we are not asking a modification of the existing law with reference to contracts or corporations, or of Constitutional guaranties. We are asking that the courts of New York be required to apply the law to the contract in question as it has been applied and understood by the members of this corporation for a period of more than thirty years, and as it was understood by this Defendant in Error in 1898 when a change involving a like principle was made. We are asking the application of old and well-settled principles of law to a field somewhat new in the adjudications of this Court, so that a system transacting its business in the different states of the Union shall not be restricted by State lines, and so that a system of such transcendent importance as the fraternal beneficiary system,-a system as necessary to the welfare of the people of this country as the savings banks that that system may be regulated and controlled, as said by the Honored Chief Justice of this Court in the Standard Oil case, 'by the light of reason, guided by the principles of the law.'"

THOSE OLD ENDOWMENT CERTIFICATES.

By George R. Allen,

Read Before the Law Section, Minneapolis, Minnesota, August 24, 1915.

Mr. President, Brothers and Sisters:

The Fraternal Societies were organized by men and women whose hearts were filled with love for their fellows. Numerous fallacies existed that years of experience were required to demolish. Now hazardous occupations, recent medical examination and selected territory resulted in a subnormal death rate which was promptly capitalized under stress of competition into a low assessment rate. Competition was the economic propelling force which together with the characteristic liberalty of future promises promptly brought about a condition wherein there was keen rivalry between societies to see which could charge the least and promise the most.

Many societies began as a voluntary association of individuals, whose contracts were assumed when charters were secured under general corporation laws. The movement waxed strong. It was filling a real need. Its friends and promoters were earnest, energetic and enthusiastic individuals whose strong and worthy characteristics were only rarely blotted by a selfish or dishonest person through demagogic tactics obtaining temporary position. Like every other phase of economic activity when it assumed sufficient proportions it became subject to statutory regulation. The friends of fraternal insurance were generally agreed as to the scope of such regulation. It should include placing the society under a department of the State and the State. should establish the general field of its activities and have visitorial powers to confine the fraternals within that field. But within the field of their endeavors the societies were to be, selfgoverning organizations.

Most of the states before 1900 adopted with trifling variation what was then known as the "Uniform Fraternal Act." This was the first general legislation secured by the fraternalists. Speaking broadly it placed the societies under an insurance department, defined the classes