& POLICY PAYABLE TO WIFE-Descent-HEIRSHIP.-If a wife dies intestate before the death of her husband a policy of insurance in her name, being her separate property, is payable to her heirs at the time of her death, and her husband takes a one-third interest therein by virtue of his heirship to her separate property. In re Estate of Dobbel,

123.

4. POLICY PAYABLE TO WIFE-DELAY OF ADMINISTRATION - HUSBAND'S RIGHTS. If the wife's estate at the time of her dying intestato consists of a policy of insurance on her husband's life, in her name, delay in the administration and distribution of her estate until after the death of her husband cannot affect his title, or that of his estate, to a one-third interest in the policy and its proceeds when paid to her estate. In re Estate of Dobbel, 123.

5. FORFEITURE FOR CHANGE OF INTEREST.-The taking of a partner by the assured and the transfer to him of an interest in the property avoids a policy if it contains a provision that if the property is sold, or transferred, or any change takes place in title or possession, the policy shall be void, though the policy also stipulates that the insurer will make good to the assured, his heirs, executors, administrators, and assigns all such immediate loss as shall result from the destruction of the premises from the perils insured against. Germania etc. Ins. Co. v. Home Ins. Co., 749.

6. LIFE BENEFIT ASSOCIATION-ACQUIRING Right of MEMBERSHIP WITHOUT FORMAL APPLICATION-ESTOPPEL.-The relief department of a railroad company, in the nature of a mutual insurance association, organized for the benefit and protection of railroad employees, in case of sickness or death, and which places an employee's name upon the roll of its members at his solicitation, and deducts from his wages his assessment for benefits, on the basis of membership, with knowledge of the fact that no formal application had been made, and no physical examination had, as required by the by-laws, is estopped from disputing such employee's membership, upon the suit of the widow to recover a death benefit, notwithstanding a rule of the department, defining and limiting its liability in cases of regular and formal applications. Burlington etc. Relief Department v. White, 701.

7. LIFE BENEFIT ASSOCIATION-MUTUAL INSURANCE COMPANY-EQUITABLE ESTOPPEL.-The fact that the relief department of a railroad corpora. tion, organized for the benefit and protection of railroad employees, is a mutual insurance company, does not relieve it from the operation of the rules of equitable estoppel. Burlington etc. Relief Department v. White, 701.

4. LIFE BENEFIT ASSOCIATION-AUTHORITY OF SUBORDINATE OFFICERS TO WAIVE REQUIREMENTS.-If a person desiring to become a member of the relief department of a railroad company, organized for the benefit and protection of railroad employees in case of sickness or death, and placed under the general management of a superintendent, does become such member, by the acts of the department, and in a manner differ. ent from that prescribed by its by-laws, and where all the steps taken toward that end are made with the knowledge of the superintendent, there is no question of the authority of subordinate employees to waive requirements, as their acts in such a case are the acts of the department. Burlington etc. Relief Department v. White, 701.

9. LIFE BENEFIT ASSOCIATION-NO DISCHARGE OF ACCRUED LIABILITY BY REFUNDING ASSESSMENT.-If a person is enrolled and becomes a member of a mutual railroad insurance association without the formal application or physical examination required by the by-laws the association, immediately after being notified of such person's disability, in case of subsequent sickness, cannot absolve itself from liability, and cancel the membership by refunding the member's contribution by "time check," which offer is made and refused just before the member's death, because the tender is not a legal one, and because liabilities have already accrued against the association from which it cannot discharge itself by refund. ing the assessment. Burlington etc. Relief Department v. White, 701. 10. LIFE BENEFIT ASSOCIATION-BY-LAWS CANNOT PREVENT ACTION TO ENFORCE DEATH BENEFIT.-The rule of a relief department of a railroad company, having the nature of a mutual insurance association, restricting themselves to remedies before tribunals created by the association, does not deprive a beneficiary of the right to maintain an action against the department to enforce the payment of a death benefit. Burlington etc. Relief Department v. White, 701.

11. LIFE BENEFIT ASSOCIATION-WIDOW AS BENEFICIARY.-The contract of a mutual railroad insurance association is ordinarily to pay the death benefit, where no beneficiary is named, to the wife of a member, if he has one. Hence, if one has become a member of such association without any written formal application, a court will hold the widow to be the beneficiary the same as it would if an application had been filed without designating any beneficiary. Burlington etc. Relief Department V. White, 701.

12 BENEFIT SOCIETY-RIGHTS OF BENEFICIARY.-The willingness of a mutual benefit society, after the death of the insured, to pay into court the money called for by the certificate, to be disposed of as the court may direct, cannot affect the rights of the beneficiary, as the society has no power by stipulation, or otherwise, to change or affect those rights. McLaughlin v. McLaughlin, 83.

13. BENEFIT ASSOCIATIONS-POLICY PAYABLE TO HEIRS-RIGHTS OF WIDOW.-If a member of a mutual benefit life insurance company dies intestate, and his insurance policy is made payable to his "heirs at law," his widow is entitled to share in the proceeds of the policy. Lyons v. Yerex, 452,

new,

14. BENEFIT SOCIETY-MODE OF CHANGING BENEFICIARY.-The laws of mutual benefit society prescribing a mode of changing the beneficiary must be followed. It cannot be made in any other manner. Hence, if that mode is confined to the surrender of the old, and the issuance of a benefit certificate, and the insured, having the power, fails to make official application for the change, and to pursue the proper course to effect it, no change can be made by his oral declarations of intention merely, or by the delivery of the certificate to the person whom he wishes to become his new beneficiary. McLaughlin v. MoLaughlin, 83.

15. ACCIDENT INSURANCE-MEANING OF WORD "IMMEDIATELY" IN POLICY The word "immediately" in a policy of accident insurance providing, as to accidents resulting in death, that notice shall be given and proof of death be made "immediately" after the accident occurs, that, unless such proof is furnished within six months thereafter, all claims shall be forfeited, and that the insurance shall not cover “disappearances,"

means such a convenient time as is reasonably requisite for giving the notice after the discovery of death, and that the proof is to be furnished within the six months specified after such discovery. Kentzler ▼. American etc. Accident Assn., 934.

INTEREST.

See BONDS, 3; Judgments, 22; NEGOTIABLE INSTRUMENTS, 2,

INTERVENTION.

See ATTACHMENT, 5.

INTOXICATING LIQUORS.

ELECTIONS-CONSTRUCTION OF STATUTE. -Under a statute making the giv ing away of intoxicating liquor on an election day a misdemeanor it is no defense that the giving away of such liquor on such day has no connection with or reference to the election then being held. Wolf v. State, 34.

See EVIDENCE, 4.

JUDGMENT-ROLL.

See EVIDENCE, 11.

JUDGMENTS.

1. CONSTRUCTION OF ERRONEOUS RECITAL.-In construing a judgment which particularly describes lands by reference to the section, township, and range of the government survey, but which contains an erroneous recital as to the county in which they are situated, such recital must yield to the particular description. Rogers v. Cady, 101.

2 DIRECT ATTACK-WANT OF NOTICE.-An attack on a judgment by the judgment defendant, on the ground of want of actual notice, and fraud in its procurement, constitutes a direct attack. Thompson v. McCorkle, 334.

& JUDGMENTS OF INFERIOR COURTS-JURISDICTION-COLLATERAL ATTACK. The judgment of an inferior tribunal upon a matter over which it has jurisdiction cannot be assailed collaterally for errors or irregularities subsequent to acquiring jurisdiction. The jurisdiction, to be complete so as to preclude collateral attack, must exist both as to subject matter and as to the parties, and the recital of jurisdictional facts in the record may be shown to be false by evidence aliunde. Smith v. Clausmeier, 311.

RES JUDICATA.-IF A CAUSE OF ACTION IS SUBMITTEd upon Demurrer and adjudged insufficient by a judgment sustaining such demurrer on the merits the plaintiff and his privies and representatives are thereby barred from asserting the same facts in another action pertaining to the subject, as effectually as though such facts were found from the proofs or expressly admitted during the trial. Kleinschmidt v. Binzel, 604.

RES JUDICATA.-A JUDGMENT AGAINST PLAINTIFF UPON DEMURRER does not preclude him from subsequently asserting the same facts accompanied by additional allegations which complete the statement of a cause of action or of defense defectively stated in the former action or proceeding. Nor does the decision against the plaintiff on demurrer, on

the ground that the remedy he seeks is not a proper one upon the facta charged, estop him from maintaining another and different action which those facts are adequate to support. Kleinschmidt v. Binzel, 604. 6. RES JUDICATA-JUDGMENT ON THE MERITS.-If the first suit was dis posed of for defects in the pleadings or parties, or a misconception of the form of the proceeding, or a want of jurisdiction, or on any ground which did not go to the merits of the action, the judgment will prove no bar in another suit. Kleinschmidt v. Binzel, 604.

7. RES JUDICATA-Burden of PROOF.-It Must Clearly APPEAR from the record in a former cause, or by proof by competent evidence consistent therewith, that the matter as to which the rule of res judicata is invoked as a bar was, in fact, necessarily adjudicated in the former action. If there be any uncertainty on this head in the record the whole subject matter of the action will be at large and open to new conten. tions, unless such uncertainty is removed by extrinsic evidence showing the precise point involved and determined. Kleinschmidt v. Binzel, 604. 8. RES JUDICATA-UNCERTAIN GROUNDS OF JUDGMENT.-A JUDGMENT FOR the Defendant upon a Demurrer Specifying that the complaint does not state facts sufficient to constitute a cause of action, and that there is a misjoinder of causes of action and of parties, merely means that the court finds some one of these causes of demurrer is good, and not that all are found good; and, in the absence of evidence that the judgment was upon the merits, it cannot constitute a bar to a subse quent action based upon the same facts. Kleinschmidí v. Binzel, 604 9. A COLLUSIVE JUDGMENT IS OPEN TO ATTACK whenever it may come into conflict with the rights or the interests of third persons, as fraud is not a thing which can stand even when robed in a judgment. Atlas Nat. Bank v. More, 274.

10. CONCLUSIVENESS.-A judgment, so long as it stands, imports absolute verity as to every proposition of law and fact essential to its existence against all parties to it. Shultz v. Shultz, 320.

11. IF A JUDGMENT OR DECREE IS PROCURED THROUGH THE FRAUD OF EITHER OF THE PARTIES OR BY COLLUSION OF BOTH, for the purpose of defrauding some third person, he may escape from the injury thus attempted by showing, even in a collateral proceeding, the fraud or collusion by which the judgment or decree was obtained. A judgment will not be upheld against the creditors of the judgment debtor if it is not founded on an actual debt or other legal liability due or enforceable at the time of its entry. A third party whose rights are affected may prove that there was no debt from the judgment debtor. Atlas Nat. Bank v. More, 274.

12. RIGHT TO RECOVER DAMAGES FOR OBTAINING.-So long as a judgment obtained by fraud stands, a party thereto cannot maintain an action to recover damages for so obtaining it, as a recovery in such action would operate as an impeachment of the first judgment. Shultz ▼. Shultz, 320.

13. ACTION TO IMPEACH.-A party to a judgment obtained by fraud can avail himself of that fraud only in a direct proceeding to vacate and set aside the judgment, and not in an action to recover damages on the ground that such judgment was fraudulently obtained. Shultz ▼ Shultz, 320.

14. IMPEACHMENT OF, FOR WANT OF JURISDICTION OF SUBJECT MATTERESTOPPEL-A judgment may always be impeached for want of juris

diction of the subject matter appearing upon the face of the judgment. Hence, a judgment foreclosing a mortgage of lands particularly described by reference to the section, township, and range of the government survey, and which judgment further erroneously recites that such lands are situated in the county in which the foreclosure action was brought, does not estop the judgment debtor, when the judgment is sought to be enforced, from asserting in an injunction suit to restrain a sale that the mortgaged premises are situated in another county, and that the court was without jurisdiction to render such judgment. Rogers v. Cady, 101.

15. OPENING AND SETTING ASIDE-APPEARANCE. - A judgment regular on its face, without evidence of defense to it on the merits, cannot be opened or set aside on the ground that the appearance for the defendants was unauthorized, if that fact is not admitted or proved. Swartz v. Morgan, 786.

16. JUDGMENTS ON VOID PROCESS. — A judgment by default, based on the return of an officer made outside the state, and shown to be invalid under the laws of that state, is null and void. Russell v. Grant, 563. 17. SETTING ASIDE-WANT OF JURISDICTION.--A judgment cannot be set aside for want of jurisdiction of the person of the defendant when the findings upon which it is based show that it was rendered upon a valid record of service made in good faith. Thompson v. McCorkle, 334. 18. EQUITY WILL SET ASIDE OR ANNUL FOR FRAUD, WHEN.-It is only for fraud extrinsic or collateral to the matter in issue, and tried in an action, and not or a fraud in an action upon which the judgment was rendered, that a court of equity will set aside or annul a judgment for fraud. This rule is based upon the principle that there must be an end of litigation. Fealey v. Fealey, 111.

19. VACATING FOR EXCUSABLE NEGLECT. The defendant is entitled to have a judgment vacated on motion on the ground that it was recovered against her through her excusable neglect, when it appears that she was vigilant from her first knowledge of the action, that she employed an attorney to defend it in the state wherein it was pending and of which she was a nonresident; that she forwarded to him a verified answer; and that he refused to file it because she did not accept a compromise negotiated by him and refused to open letters addressed to him and forwarded by her and her counsel from her place of residence. She cannot be regarded as inexcusably negligent, though she received a letter from the attorney stating that unless she accepted the terms of the compromise he would have nothing more to do with the case and would not file the answer, when she afterward wrote to him explaining that the compromise had never been authorized by her and requesting him to file the answer. She could not anticipate that he would refuse to open and read her letter. Simpkins v. Simpkins, 641. 20. VACATING FOR UNAVOIDABLE CASUALTY.-The serious sickness of an attorney's wife is an unavoidable casualty, excusing his nonattendance at court at the time his client's case is set for trial, and is ground for setting aside a judgment rendered at that time dismissing the action for want of prosecution, if the client has a meritorious cause of action, and has not been guilty of laches. Leaming v. McMillan, 26. 21. ACTIONS UPON.—A party who has recovered a joint judgment upon a joint and several claim may thereafter maintain an action upon the