total amount of his insurance was $20,000 covered by two policies for $10,000 each. Mr. Keenan died on March 15, 1907. In his application for the policies he stated tha: he was born March 23, 1858. It is admitted that he was born a year earlier, so that, instead of being 45 when insured, he was 46 years of age. Each policy was written subject to the provisions, requirements, auc benefits stated on its back. One of these provisions is as follows: "The company will admit the age of the insured upon satisfactory proof. Failing such proof, if the age shall have been understated, the amount of insurance or other benefit will be equitably adjusted." The company paid to the plaintiff, who was the beneficiary, the sum of $9,616 on each policy, this being the amount which the annual premiums of $393.60 paid by the insured would if paiċ by a person 46 years of age purchase. This action is brought to recover $384 on each policy, being the difference between $9,616 paid on each and the full amount insured on each policy, namely, $10,000.

On the trial the theory upon which the recovery by the plaintiff rested was that the insured should have paid each year on each policy $409.30 instead of $393.60, and that the difference each year-$15.70 together with the interest upon each payment for the number of years the policy was in force. should be deducted from the face value of the policy. This theory seems to have been adopted by the jury, which returned a verdict for the plaintiff for $646.66. The contract of life insurance is one in which, in consideration of the payment annually, semiannually, or quarterly of a fixed sum by the insured, the company agreed to pay a certain amount to the insured, or to his named beneficiary, upon the event of the death of the insured. The annual or stated sum to be paid by the insured is fixed by his expectancy of life. In calculating this expectancy, one, perhaps the chief, element to be regarded, is the age of the insured at the time of the execution of the contract. The calculated period during which the annual or other fixed premiums are to be paid is the basis upon which the amounts of each annual or fixed premium or stated premium is fixed. These premiums are so adjusted that the risk of death from year to year during the period of life expectancy will be paid for in advance. The younger the insured, the less the risk of death, and so the less the periodical payments for the insurance of a particular amount. A person, therefore, who states his age as 45, when he is in fact 46, years of age, is getting an insurance against a risk for which he is not paying. In the absence of fraud on the part of the insurer-when he deserves nothingit is equitable that in case of his death the company shall pay so much as the insured has paid for, and no more. The theory upon

scheme upon which the contract is based. Instead of this theory being one under which the risk is paid for in advance, it becomes one which compels the company to assume a risk upon credit, and the amount credited is never to be paid by the insured during his life, but is only to be deducted by the company from the amount of the policy upon his death. Such a system, if applied to the entire amount of premiums, would be inconceivable in practice, for it would not merely bankrupt the insurance company, but would make it impossible for the company to accumulate any assets to meet its losses. Any theory which leads to such a result cannot be equitable.

On the trial one Berry produced what he styled rules enforced by the Mutual Life Insurance Company. One of these rules was headed "Changes of Age," and read: "Increased payment payable in the future will be made subject to the payment of the difference of premium with 5 per cent. compound interest." This rule covered instances where during the life of the insured it was discovered that he had understated his age. For this reason the witness gave it as his opinion that equitably the company should take the same course upon the death of the insured in adjusting the amount to be paid. The opinion of the witness was of no value whatever. He had never known of an adjustment made after the death of the insured under these conditions. He knew of no rule in the insurance world respecting an equitable adjustment. He was entirely disqualified to give an opinion on what was an equitable adjustment, and his testimony should have been overruled.

But, assuming that the rule of the company is in evidence, it has no significance respecting the question to be now solved. When the understatement is discovered before the death of the insured, the company has the right to do one of two things: To say to the insured, (1) "Your policy can stand for the amount for which you have paid," or (2) "If you choose to pay what you should have paid, with interest, then in consideration of that payment, and in consideration of full payment in the future of the amount of premiums proper at your age, we will put you upon the footing of a full paid premium paying insured." This, it is perceived, is a mere change of contract. The company had the right during the life of the insured to make a new contract. Up to that time the insured had only been insured for the amount for which he had paid, and, if death occurred before a new adjustment, the old contract controlled, and rightly so. But, when he had paid what he should have paid, and agreed to pay the new rate, the company received in advance the consideration for the future risk in excess of the old risk. At no time had the company insured him on credit. The inequity of the rule insisted

form in its results, and would operate with great hardship upon an insured who lived to a great age, and the difference of whose stated age and whose real age was considerable. Mr. Bunyan gives an instance where the application of this rule left nothing to be returned by the insurance company. Bunyan's Law of Life Insurance, p. 115. On the other hand, the rule that the amount paid shall be what the insured paid for in advance is adopted by the Legislature of this state (P. L. 1907, pp. 133, 134) and by the Legislature of six other states. Although the statute in our state was passed subsequent to the execution of the contract in this case, it exhibits the legislative sense of what is equitable in the present situation.

We think the verdict must be set aside, and a new trial granted. We think also the court should have directed a verdict for the defendant.

(77 N. J. L. 99)

KURSHEEDT et al. v. STANDARD BLEACHERY CO. et al. (Supreme Court of New Jersey. Nov. 9, 1908.) NEW TRIAL (§ 102*) - NEWLY DISCOVERED EVIDENCE.

On an application for a new trial on the ground of newly discovered evidence, if it appears that testimony has in fact been discovered since the former trial, which, by the use of reasonable diligence, could not then have been obtained, and that such testimony is material to the issue, goes to the merits of the case, and is not cumulative, the application will be granted. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 210; Dec. Dig. § 102.*]

TRENCHARD, J. The plaintiffs were in the business of making aprons from bleached goods called "lawn," and bought the goods unbleached "in the gray," as it is called, and at different times between January 1, 1905, and May, 1907, sent such goods amounting to 3,159,873 yards to the defendants' bleachery to be bleached. The plaintiffs' claim was that the process of bleaching caused a stretch or increase in the goods bleached, amounting to at least 1 per cent of the yardage, and that by the contract between the parties the plaintiffs were entitled to this stretch; and, notwithstanding the plaintiffs' rights, the defendants had appropriated the stretch to their own use. The defense seems to have

been a denial that the goods had been stretched by the bleaching in the defendants' works. The jury found a verdict for the defendants, whereupon the plaintiffs obtained a rule to show cause why a new trial should not be granted on the grounds, among others, of newly discovered evidence and that the verdict was contrary to the weight of the evidence.

Reviewing the evidence before the jury, it appears that there was no substantial dispute that, under the contract between the parties, the plaintiffs were entitled to the stretch, if any, that arose from bleaching. To sustain the verdict for the defendants, the jury must have been able to properly find from the evidence that the plaintiffs failed to show that the goods were stretched and that the stretch was appropriated as claimed. With respect to this question, we are in such doubt that we cannot say that the verdict is so clearly against the weight of the evidence as to justify us in disturbing it on that ground.

Coming now to the new evidence taken under the rule, we observe that it is of three kinds: First. That relating to the "count" or the number of threads to the inch in the lawns bleached for the plaintiffs by the defendants. Second. That relating to the "Northrup Loom." Third. Direct evidence given by certain former employés of the defendants as to the stretch or "overs" which was obtained at the works of the Standard Bleachery, and what was done with it. It is unnecessary to state with greater particularity this evidence. It is sufficient to say that much, if not all, of it has in fact been discovered since the former trial; that, by the use of reasonable diligence, it could not have been then obtained; that it is material to the issue, and goes to the merits of the case, and is not cumulative. Under these circumstances the motion for a new trial ought not to be denied. Van Riper v. Dundee Mfg. Co., 33 N. J. Law, 152. Let the rule to show cause be made absolute.

(77 N. J. L. 181) WALSH v. MAYOR, ETC., OF CITY OF NEWARK et al.

(Supreme Court of New Jersey. Nov. 9, 1908.) 1. MUNICIPAL CORPORATIONS (§ 294*)—PUBLIC IMPROVEMENTS-NOTICE.

When a public improvement is made without notice, actual or constructive, to the owner of land specially benefited thereby, of the intention to make such improvement, he cannot be assessed for special benefits, unless by some act he has waived his legal right to a hearing.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 778; Dec. Dig. 294.*] 2. MUNICIPAL CORPORATIONS (§ 319*) — PUBLIC IMPROVEMENTS-ASSESSMENTS - WAIVER OF OBJECTIONS.

Where the proceedings of the municipal authorities plainly indicate that the improvement

contrary the action of the common council of Vailsburg, in the adoption of the ordinance without notice, the making of the contract, the issuing of bonds for the payment of the whole cost, indicates that no assessment against the prosecutor was contemplated. The proceedings of the borough council of Vailsburg do not show any notice of intention to adopt the ordinance, nor is there proof that any was given, and under the rule in this state, where an improvement is made without notice to the landowner who may be liable to an assessment, he has been deprived of his constitutional right to be heard, which subsequent legislation cannot cure. Nor can it be said that this prosecutor stood by and saw an improvement made for which he was likely to be assessed without protest, so as to waive his objection, because the case shows that he was led to believe that the general scheme of improvement was to be made at public expense, and that no assessment would be levied against him, and the municipality would now be estopped from charging him with laches.

For these reasons we think that the writ ought to go, and it will be allowed.

(77 N. J. L. 95)

MARTER v. HENRY SANCHEZ CO. et al. (Supreme Court of New Jersey. Nov. 9, 1908.) 1. ACTION ($ 42*)-MISJOINDER OF CAuses.

A plaintiff cannot in one action assert an independent liability of a corporation in one count, an independent liability of the individual directors of the corporation in another count, and the liability of both the corporation and the individual directors in a third count.

[Ed. Note. For other cases, see Action, Dec. Dig. § 42.*]

2. PLEADING (§ 193*) — DEMURRER-MISJOINDER OF CAUSES.

A misjoinder of counts affords cause for a general demurrer to the declaration.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 435; Dec. Dig. § 193.*]

(Syllabus by the Court.)

Action by J. Byard Marter against the Henry Sanchez Company and others. Demurrer to declaration sustained.

Argued June term, 1908, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Cyrus D. Marter and Samuel H. Richards, for plaintiff. William M. Seufert, for defendants.

TRENCHARD, J. The plaintiff in this action sues the Henry Sanchez Company, Henry Sanchez, and Gumersindo Sanchez. The action is brought upon a promissory note for $1,000, made by one of the defendants, the Henry Sanchez Company, a corporation of this state, to the plaintiff. The first count of the declaration charges the company alone with liability. The second

count avers that the company was dissolved under the corporation act of this state; that the two individual defendants were directors of the company, and became trustees for the creditors under the statute; that they have corporate assets of the company in their hands sufficient to pay all outstanding liabilities of the company. On these facts the second count seeks to recover against these two directors alone. The declaration also contains common counts, under which the plaintiff seeks to hold all three defendants. The defendant Gumersindo Sanchez demurs upon the ground, among others, that the three counts or causes of action are improperly joined.

We think the demurrer should be sustained. The plaintiff cannot in one action assert an independent liability of the corporation in one count, an independent liability of the individual directors of the corporation in another, and the liability of both the corporation and the individual directors in a third count. Dunn v. Pennsylvania R. R. Co., 67 N. J. Law, 377, 51 Atl. 465. He may, under the authority of section 55 of "An act concerning corporations" (P. L. 1896, p. 295), sue all of the directors by the name of the corporation, or in their own names or individual capacities, or he may, under the authority of section 92 of the act (P. L. 1896, p. 306), sue any one or more of the directors. He cannot, however, join all of them in one count (either in the name of the corporation or in their own names), and only some of them in another. Such misjoinder of counts affords cause for a general demurrer to the declaration. 1 Chit. Pl. 202, 205, 665; 2 Saund. 117b; Drummond v. Dorant, 4 T. R. 360; Dunn v. Pennsylvania R. R. Co., 67 N. J. Law, 377, 51 Atl. 465.

The demurrer will be sustained.

The raising of the safety gates across the highway at a railroad crossing will not excuse a person intending to cross the tracks from the duty of looking and listening.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1072; Dec. Dig. § 330.*] (Syllabus by the Court.)

Action by Alfred Willoughby against the Erie Railroad Company. Verdict for plaintiff. Rule to show cause made absolute.

Argued June term, 1908, before REED, BERGEN, and VOORHEES, JJ.