VOL. IV. THURSDAY, NOVEMBER 1, 1883.

accounted for by the injection of an embalming fluid, through the mouth and nostrils of the corpse, by the undertaker for the purpose of preserving the body, and that the embalming fluid contained

corrosive sublimate.

YORK LEGAL RECORD. advantage to persons not wealthy is, that when the husband or father dies, by any No. 35 sickness or casualty unforseen, his family may not be left destitute. These assessment companies do not differ in this repect from the old line companies. Such companies form a membership on the basis that if one dies all the others must contribute a certain proportion or fixed sum, and as there is no liquidated capital from which to pay losses, they depend upon the payment of assessments to meet the claims against them. This consideration may serve to explain how, in one point of view, that is, in case of a party living out his expectancy, a calculation of the money he has to pay may be prudent, but the main object of insurance is the realizing the amount of the policy in case of death before that period, and in that way it may be a good investment.

It is necessary in order to prove a conspiracy to show some concert of action between the persons charged with the conspiracy. In order, therefore, to find the plaintiff to be a conspirator, you must find from the facts and circumstances of the case, that she agreed in some way with the other persons named to defraud this company, and that she agreed with the others to obtain all of these insurances fraudulently. The conspiracy alleged has a double aspect. First, that Mrs. Leidig, plaintiff, and her son and her husband conspired together to obtain all of these insurances, not for the bona fide intention of insuring her husband's life, or making an investment of any money she had, but that they expected to realize the large amount of money insured by false statements in the several applications. The testimony of the insurance agents show how they themselves secured these several risks. Mr. Motter, for instance, several, and Mr. Stock several, and Mr. Eneas Smith this one. You have had detailed to you conversations between them and Mr. and Mrs. Leidig. How persuasions were used and arguments pro and con as to the feasibility of effecting the insurances. A life insurance policy does not strike the ordinary mind as a means of investment, depending upon the expectancy of the life of the insured. When a man takes out a policy of insurance on his life or that of another, it is because of the uncertainty of life. It is because the person insured may die within the expectancy, in five years, in two years, in one year, in one month, the next day. The

The second aspect of the conspiracy charged is, that the parties concerned originally included Mr. Leidig himself as

one of them. But when we come to that part of the conspiracy which contemplates the impairing of the longevity, the hastening of the death of the insured, by an encouragement of intemperate habits, and finally, by the ending of the life of the insured by foul means, then Mr. Leidig cannot be presumed to be a participant in the means to hasten his own death. The concert of action, the agreement must be proved to exist between the plaintiff and her son, conceived and concerted after the insurances were effected, unless a deep plot of that character existed from the beginning to make Mr. Leidig a victim.

The credibility of the witnesses on either side is for you to determine, and you will take the whole of this evidence, and find whether or not such a conspiracy is proved by the defendant, with the fatal results charged by them, or whether the insurances were originally bona fide taken, and Mr. Leidig died by one of these extraordinary ills that flesh is heir to, whether from physical predisposition, superinduced by

of longevity, or rendering the risk more hazardous * * * that then, and in every other event the certificate of membership shall become null and void, and the association [defendant company] shall be absolutely released from any and every liability resulting from said certificate of membership, contract and application." The effect of which is, that if the said Jacob W. Leidig made or gave any untrue answers the certificate of membership is null and void, and your verdict must be for the defendants.

[This point is correct.]

37. In refusing to affirm defendant's seventh point, and in instructing the jury that it was for them to determine whether the applicant had "read or heard read all the answers in the application:"

(7.) The evidence introduced for that purpose by the plaintiff failed to show. that the applicant did not read or hear read all the questions and answers contained in the application; therefore he and the plaintiff are bound by the answers therein made and contained.

(The question raised on this point as to whether the plaintiff did or did not read or hear read all the questions and answers contained in the application is for the jury to determine, and therefore we cannot affirm this point.

Per Curiam--We have examined the voluminous evidence and considered the forty-three specifications of error assigned; but we find no error sufficient to require a reversal of this judgment. We will not refer to them seriatum. In view of the nature and character of the defence set up and the numerous questions raised, the case was well tried. No just complaint can be made to the rulings relating to the evidence, nor as a whole to the manner in which the case was submitted to the jury. Substantial justice appears to have been reached by the verdict. Judgment affirmed.

Cochran & Hay, and W. Henry Smith for report.

for Plaintiff in Error cited no authorities on the above assignment of error.

E. W. Spangler, W. C. Chapman and Hon. F. Carroll Brewster for Defendant in Error.

When a fact is peculiarly within the knowledge of a party, the burden is on him to prove such fact, whether the proposition be negative or affirmative; Wharton on Evidence, 367, 368; 13 La. Rep. 397; 30 Ill. 347; 6 T. R. 57; 6 Gray 192; 17 P. F. Smith 370.

The law will not force a man to show a thing which by intendment of law lies not within his knowldge: Best on Evidence 274, 504 and 506; 16 A. & E. 125; 3 B. & B. 302.

October 22, 1883. McCLEAN, P. J. It is shown by the auditor's notes that Hon. Geo. A. Smith appeared at the audit for Messrs. Lodge and Nelson, the purchaser's at the Sheriff's sale and also for the legatees. The auditors find as a fact that when Jacob J. Mellott purchased the 'Brick House property,' it was agreed that he should pay the legacies."

I am somewhat at a disadvantage in not having an oral argument upon the exceptions, but I must understand of course that the agreement referred to was between Joseph B. Mellott and Jacob J. Mellott and that the legatees whose legacies have not been paid were not parties to such agreement.

YORK LEGAL RECORD.

VOL. IV. THURSDAY, NOVEMBER 8, 1883.

SUPREME COURT.

Gilbert v. Moose's Administrators.

Life Insurance-Wager Policy.

verdict for the plaintiffs, and reserved the following point "whether or not, the asNo. 36 signment being made upon the consideration of the payment of twenty-eight dollars, the assignee having no interest in the life of the assured, and having taken the assignment for the purpose of speculation only, is entitled to retain the money received on the policy as against the personal representatives of the deceased beyond the amount of the consideration, fees and assessments paid to the association." Afterwards on agreement the Court entered judgment on the verdict for the plaintiffs. We are thus at once brought face to face with the question, really the only one in the case, can one having no Error to the Court of Common Pleas interest in the life assured, and for the of Adams County.

A policy of life insurance was issued to J., a son of the assured's daughter-in-law. J. assigned it to G., who paid the assessments, &c., and upon the death of the assured received the amount of the policy. Suit was brought by the administrators of the assured to recover the amount received by G., less assessments and dues paid by him. HELD, That plaintiff's were entitled to recover.

A gambling policy will not be enforced in this state. The proceeds of the policy could not go to J. or his assignee, since he had no insurable interest.

The dictum of Sharswood in Insurance Co. v. Sleau, 2 Casey 189, does not apply to this case, for that is only applicable to a case where the policy is bona fide, and founded on an insurable interest.

purpose of speculation only, acquire by

The facts of the case are found in the assignment or otherwise, such title to the Court's opinion. policy as the law will enforce?

May 31st, 1883. GORDON, J. Jacob Moose in his life time, August 17, 1880, made application to the Southern Pennsylvania Relief Association of Hanover, York county, Pa., for an insurance on his life, and upon this application a Policy or Certificate of Membership, as it is called, in the sum of two thousand dollars, was issued for the benefit of one Peter Jacobs, an alleged grand-son of the assured. It turns out, however, that Jacobs was in no way related to Moose, being but a son of a son's wife, hence having no assurable interest in the life on which the policy was issued. On the 31st of August following the date of the certificate, Jacobs for the consideration of twenty-eight dollars, assigned to John G. Gilbert, the defendant, by whom all subsequent assessments made by the company were paid. On the 3rd of April, 1881, Jacob Moose died, and the defendant received from the company on the policy some three hunderd and fifty-six dollars. It was for this sum of money, or the balance of it, after deducting the assessments and other expense paid by Gilbert, that this suit was brought. The court below after hearing the evidence, directed the jury to return a

It was held by this Court as early as 1803, in the case of Pritchet v. The Insurance Co., 3 Yeates 458, that every species of gaming contracts of insurance, wherein the insured has no interest in the subject matter of the policy, or one only colorable, is in this Commonwealth, without sanction of either law or usage; that such contracts are mischievous and dangerous to the interests of trade, commerce and society, and are to be reprobated rather than encouraged by our Courts. The very same view of this subject is adopted in Edgwell v. M'Laughlin, 6 Wharton 176, and it was there said that no kind of wager had ever been recoverable in the Courts of Pennsylvania.

So also in the case of Adams v. The Insurance Co., I Rawle 97, it was asserted that, in this State a gaming policy cannot be enforced. We need not stop to consider at length the principles on which these decisions rests for they must be obvious to every sound moralist.

The gambler is as a rule reckless and dangerous, and seldom hesitates at the means necessary to secure his bet. We have within our own knowledge a case