IN NOTES OF CASES. self to the jurisdiction of another State. Surely there can be no question as to the importance of securing this end if it be possible to do so. The sole object of maintaining this extra-territorial jurisdiction in Mohammedan and other semi-civilized countries is to protect our citizens against the unequal laws and barbarous procedure of those countries. Having undertaken to protect them from that law and procedure, what shall we give them in their stead? A nondescript law and an anomalous procedure, the result of imperfect laws, operating upon fortuitous circumstances? or shall we invest them at once with the full panoply of American citizenship, extending over them wherever they may be and wherever we have acquired the right of so doing, the full protection of our Constitution and laws? It is true that the treaties and laws, under and by virtue of which these Consular Courts are set up and conducted, provide for trial by "American law," and require that "such jurisdiction, in criminal and civil matters, shall in all cases be exercised and enforced in conformity with the laws of the United * * States, which are hereby * extended over all citizens of the United States * * k and over all others to the extent that the terms of the treaty justify or require," but the Supreme Court has decided that the Constitution, the supreme law of the land, "can have no operation in another country," and so American citizens are still left to be dealt with by unequal laws, administered by a procedure from which we, in our domestic tribunals, are carefully protected. Probably, in the present state of the law, the Supreme Court had no alternative but to decide as it did in this case. It is too often forgotten that our supreme tribunal is composed of men whom the developments of our constitutional system have forced to play the part of statesmen as well as judges. As one of the organs, perhaps the most powerful and important organ of the government, the Supreme Court cannot always deal with the questions that come before it in their purely legal relations. To such a tribunal, questions of policy, of expediency are as important as questions of law, often, perhaps, more important. In this view of the case, the court is certainly justified in refusing to disturb a jurisdiction which has been freely exercised and undisputed for a generation and which, as at present exercised, is, with all its defects, the only protection afforded to American citizens in many parts of the Orient against the barbarity of local law and custom. What we contend for is not that our citizens shall be deprived of existing privileges, but that there shall be added to these the constitutional rights which we here enjoy and which should be secured to us wherever an American judge sits for the trial of American citizens. In other words, we believe that the law pre-cribed to Lade v. Shepherd, 2 Strange, 1004, decided scribing the procedure of the Consular Courts of the United States should be so amended as to assimilate the procedure of these courts to that of our domestic tribunals, so that no American citizen in any court that presumes to dispense American law shall be deprived of the constitutional rights of indictment and trial by jury. N Watson v. Chicago, etc., R. Co., Supreme Court of Minnesota, June 11, 1891, it was held that a railroad company cannot take title to lands through a common-law dedication to public use. The court say: "It is remarkable that there are so few decisions touching in any way the capacity of a railroad company to receive a common-law dedication of land for the purpose of a railway. The appellant refers us to 1 Rorer on Railroads, 322, where the au thor assumes that such dedication may be made, and to Daniels v. Railway Co., 35 Iowa, 130; Railroad Co. v. Sutor, 11 Am. & Eng. R. Cas. 506, and Morgan v. Railway Co., 96 U. S. 716, in which the same thing seems to have been assumed, though in none of them is there any thing to indicate that the question was raised. In Todd v. Railroad Co., 19 Ohio St. 514, referred to by the respondent, the court held directly that a railroad company cannot acquire title to land by dedication. The appellant argues that whenever the right of eminent domain may be exercised to appropriate private property to public use, the property, or an easement in it, may pass by common-law dedication; and therefore, as lands for the use of a railroad company may be appropriated under the right of eminent domain, such a dedication may be made to a railroad company. It is not true however that a public use, which will justify taking private property under the right of eminent domain, will in all cases sustain a dedication to public use. Private property may, under the right of eminent domain, be appropriated for mill-dams (Miller v. Troost, 14 Minn. 365); for the maintenance and operation of booms on rivers navigable for logs (Cotton v. Boom Co., 22 Minn. 372); for constructing water-works for a particular town (Inhabitants of Wayland v. Middlesex, 4 Gray, 500); for a school district (Williams v. School Dist., 33 Vt. 271; Board v. Hackmann, 14 Mo. 243); and undoubtedly for many such purposes, as for fire-engine houses in cities and towns. But it would be extending the doctrine of dedication beyond any thing yet suggested in the books to hold that the title or right to the property or easement could thereby pass to and vest in the owner of the dam or mill, the boom company, the town constructing the waterworks or engine-house, or school district erecting the school-house. The rule that a right in the public to use the land of an individual may be vested by dedication, by acts in pais, when such a right can vest in an individual only by grant, is anomalous, and grows out of the necessity of the case, and has been accounted for on the ground that there is no grantee in esse capable of taking. The origin of the doctrine of dedication has sometimes been as about one hundred and fifty years ago. That is the earliest case in which we find the word 'dedication' used, and in which some of the requisites of a dedication are suggested. But though it has been greatly developed and modified since that time, to meet the altered conditions of public needs, the doctrine had its roots in the common law for centu ries before that case. The public right however | State, assumes to perform, and which the State can compel it to perform. But its rights in the lands as its own property are secure and inviolable. State v. Railway Co., 36 Minn. 402. The corporation, for its own profit and advantage, accepts the franchises offered by the State, and assumes to perform the functions and duties required by the State, not with property furnished it by the State, but with its own property. The ownership of the property is private, though the use required to be made of it is public. The private ownership prevents the acquisition of it by dedication." was not described as held by dedication, but by custom. As to the rights of the public, some requisites of a good custom are not retained in the law of dedication, most notably that in relation to the time or duration of the public uses. Others are; a custom to take a profit out of the land of another to use it for purposes of profit was not good. Gateward's Case, 6 Coke, 60: Grimstead v. Marlowe, 4 T. R. 717; Mellor v. Spateman, 1 Saund. 341; Blewett v. Tregonning, 3 Adol. & El. 554; Waters v. Lilley, 4 Pick. 145; Pearsall v. Post, 20 Wend. 111; 22 id. 425; Littlefield v. Maxwell, 31 Me. 134. All that could be claimed was an easement, as a In Elting v. Palen, New York Supreme Court, right of way. The claim of right to take a profit General Term, Third Department, May 21, 1891, 38 from the soil of another had to be supported by N. Y. St. Rep. 93, the defendant was tenant of a grant or by prescription, which supposes a grant; farm, and his lease expired April 1, 1887. A partiand as the public, as such, could not take a grant, tion sale of the premises took place in October, 1886, of course it could not have such a right. We have the premises being sold in parcels to several persons, not been referred to any case, nor been able to find among them one Varick. The sale was subject to any, which decides that the law of dedication is not the tenant's possession until April 1, 1887. The subject to this restriction, or which holds that a plaintiff bought a tract on which were the dwellingdedication may be made to take a profit out of the house and barn. In the latter at the time were two land, or to use it for purposes of profit. The case loads of manure; by February 17, 1887, there were of Pearsall v. Post especially, in the Court of Errors, one hundred and thirty. At the request of Varick, goes over the whole doctrine, and denies that such the defendant then began carrying away the maa right can be claimed by dedication. Most of the nure and depositing it on her land. Held, that the maland throughout the country, appropriated under nure belonged to the land, and hence to the plaintiff the right of eminent domain, is taken and employed as owner of the fee of that portion of the farm. in the public use, through the agency of business Learned, P. J., said: "In Middlebrook v. Corwin, corporations. They are authorized to employ the 15 Wend. 169, the landlord sued the tenant for maland taken, not only for the public benefit, in the nure taken away from the farm shortly before the public use, but for carrying on the business they are expiration of the term, and it was held that he authorized to transact, not only to serve the public, could recover. The court said the manure bebut to serve their own private interests to make longed to the farm, and the tenant had no more for themselves a profit out of the use of the land right to remove it than he had to remove a fixture. taken. Where land is to be employed in the public Such is the rule in 2 Kent's Commentaries, 347. In use, by a business corporation or an individual, Goodrich v. Jones, 2 Hill, 142, the court held that there is no reason, founded on necessity, for the manure made a part of the freehold, though laid up doctrine of dedication; because there is, in such in heaps in the barnyard. This was said to be the case, a grantee in esse capable of taking a grant. doctrine between landlord and tenant, and to be Private property cannot be acquired by dedication. stronger as between vendor and vendee. The same It is argued that a railway company is a public or is held in Daniels v. Pond, 21 Pick. 367, and Kitquast public corporation; that its purposes and du- tredge v. Woods, 3 N. H. 503, which last case is apties are public; that its use of land, held and used proved in Goodrich v. Jones, supra. See also Lassell by it for the purpose of its railroad, is a public use; v. Reed, 6 Greenl. 222. It is worth noting also that and that lands dedicated for that purpose are dedi- this is a rule not of our law only. By the Roman cated to the public for public use. From the argu-law manure went to the purchaser of the farm, ments used it might be inferred that the title of such a company to the lands held by it is merely nominal, held by an agent for its principal, no rights or interests of its own being involved. Fortunately for such corporations, and for the public also, this is not the view the courts take of the relation between the corporation and the property held by it. The lands acquired by the corporation for the purposes of its enterprise are, so far as the right of property is concerned, private property. If purchased, the corporation pays for them; if taken in the exercise of the right of eminent domain, it pays the compensation. It is true they are charged with a public duty which the corporation, in consideration of the rights and powers conferred on it by the * * * whether the manure was in a heap or in a stable. ered we cannot follow it. The defendant urges the rights of cotenants or joint tenants as to personal property. But we think that those rights are not here involved. Of course there is a certain difficulty in treating such an article as manure in a farm barnyard as real estate, but the difficulty is no greater than in the case of hop-poles. Bishop v. Bishop, 11 N. Y. 123. And the rights of all parties ket town in the proper county upon the market day, there stand openly on the pillory by the space of one hour, and also shall (if the court by which such judg ment shall be given shall think fit) be obliged to give sureties for his or her good behavior, etc. seem to be best settled when the manure is said to belong to the farm and not to the tenant. Nor do we think that any difficulty arises from the fact that the tenant's lease extended over the whole three hundred acres. The decision of the court was in this case, that this He had no right to the manure as statute being in force on the 17th day of September, owner, though he might, as above stated, have re1792, was introduced into Ontario by the act of Upper stored it to the land. And when the owners of the Canada, 40 George III, chap. 1, by which all the crimland divided it by their sale, we see no injustice in inal laws of England then existing were imported into saying that the manure belonged to that separate the wilds and wildernesses of that province, and that portion of the farm on which it was accumulated. by the statute under consideration the mere undertakFor, as above pointed out, it could not, in gooding to tell fortunes constitutes the offense, and the conviction was confirmed. We may add that the pilhusbandry, during what remained of the defend- lory long since went out of fashion. Regina v. Milford, ant's term, have been applied for his benefit over 20 Out. 306. the farm generally." THE FORTUNE-TELLING. enlightened American citizen always expects something interesting or out of the way in reports of Canadian courts or doings; that is, interesting as antiques are, out of the way like Stanley's pygmies. The judges of the Queen's Bench Division of the High Court of Justice of Ontario have recently been considering the question of fortune-telling. A woman to In England, about four years ago, a man was convicted under 5 George IV, chap. 83, § 4, which makes punishable as a rogue and vagabond "every person pretending or professing to tell fortunes * * deceive or impose upon any of his majesty's subjects." He had published advertisements in various newspapers offering to cast nativities, give yearly advice and answer astrological questions. A detective wrote to him and received from him a circular setting forth his views of astrology as a science, and stating that by the position of the planets in the nativity and their aspects toward each other, he was able to tell any applicant's fortune in the various events of life in return for certain remuneration. He never actually told any thing to the detective, and there was no evidence to show whether or not he believed in the truth of his profession. It was held that on this evidence the as The was indicted for unlawfully undertaking to tell fortunes, to-wit, the fortune of one Caroline J. Adams, against the form of the statute passed in the ninth year of the reign of his late majesty George the Second, chaptered 5, at the General Sessions of the Peace fortrologer was rightly convicted. Penny v. Hanson, 13 the County of York. She was found guilty and the case was reserved for the High Court. It appeared that the complainant was in the employ of the police, and went to discover if the accused was doing wrong; her story was that the prisoner opened the door, took her upstairs, sat down beside her, took hold of her hand, booked at the palm and read her fortune. She then paid the prisoner fifty cents which she claimed as her fee. Adams was neither duped nor victimized, but 9 George II, chap. 5, still lives and flourishes in Canada, although it is one hundred and thirty years agone since George himself met the common doom of kings. This act repealed an act passed in the first year of that James who is styled in the authorized version of the English Bible, a most high aud mighty prince, intituled “An act against Conjuration, Witchcraft and dealing with evil and wicked spirits" (except so much thereof as repealed a still more interesting act passed in the fifth year of that bright and occidental star, Queen Elizabeth, of most happy memory, intituled, An act against Conjurations, Inchantments and Vitchcraft); George's act also repealed the Scotch act passed under Queen Mary, Anentis Witchcraft, and it enacted that thereafter uo prosecution, suit or proceeding should be commenced or carried on against any person or persons for witchcraft, sorcery, inchantment or conjuration, or for charging another with any such offense in any court whatsoever in Great Britain. But for the more effectual preventing and punishing any pretenses of such arts or powers as are before mentioned, whereby ignorant persons are frequently deluded and defrauded, be it enacted (says the statute) that if any person shall pretend to exercise or use any kind of witchcraft, sorcery, Q. B. Div. 473. Denman, J., in giving judgment, said: "It is absurd to suggest that this man could have believed in his ability to predict the fortunes of another by knowing the hour and place of his birth and the aspect of the stars at such a time. We do not live in times when any saue man believes in such a power." He thought that there was an intention to deceive on the part of "Neptune the astrologer," in professing his ability to tell the fortune of the detective. Law Quarterly Review, vol. III, p. 360, remarks that these words of Mr. Justice Denman "mark the fall of an old belief. It is certain that two centuries ago men of first-rate ability believed that fortunes could be foretold from the aspect of the stars. We may even doubt whether his lordship's enlightenment does not mislead him as to the average condition of modern belief. Not many years have passed since excellent persons believed in table turning. Educated men have supposed that they could learn a good deal from what a child saw, or said he saw in a crystal ball. The belief in astrology is more venerable, and certainly not more irrational than the belief in the miracles at Lourdes. From a theoretical point of view Mr. Penny might have a good deal to say for himself; practically, it is no doubt desirable that Neptune, the astrologer, and the like should be treated as the rogues which they are generally found to be by their dupes." Under the same section of the act of George IV, in 1877, a spiritualist, who pretended to have the supernatural power of summoning spirits from the vasty deep and making them come at his call, and obtaining from invisible agents and the spirits of the dead, answers, messages, manifestations of power, noises, rappings and the winding up of a musical box, and so attempted to deceive and impose upon certain persons who attended his seances, was convicted as a rogue and a vagabond, and punished accordingly with three months' imprisonment with hard labor. Monck v. Hilton, 2 Exch. Div. 263. ment was a promissory note and imported a cousideration, and that the burden rested upon the defendauts to show that it was without a consideration. The exceptions to these rulings present the principal questions argued upon this appeal. The statute of this State in reference to promissory notes provides as follows, 1 R. S. 768: Section 1. All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person, or his order, or to the order of any other person, or unto the bearer, any sum of money therein mentioned, shall be due and payable, as therein expressed; and shall have the same effect, and be negotiable in like manner, as inland bills of exchange, ac The statute of Mary Stuart above referred to is interesting; here it is verbatim et literatim : "For-sameikle as the Queenis Majestie and the three Estaites in this present Parliament, being informed that the heavie aud abhominable superstition used be diverse of the lieges of this Realme, be using of Witch-crafttes, Sorcerie and Necromancie, aud credance given thereto in times bygane, against the Law of God, And for avoyding and away-putting of all sik vaine supersti-cording to the custom of merchants. tion in times to-cum, It is statute and ordained be the Queeneis Majestie, and the three Estaites foresaidis that na maner of person nor persones, of quhat-sumever Estaite. degree, or condition they be of, take upon hand in onie times hereafter, to use onie maner of Witch-craftes, Sorcerie, or Necromancie, nor give themselves furth to have onie sik craft or knawledge thereof, their-throw abusand the people: Nor that na persoun seik onie helpe, response, or consultation at onie sik users or abusers foresaidis of Witchcraftes, Sorcerie or Necromancie, under the paine of death, als weil to be execute against the user, abuser, as the seiker or the response or consultation. And this to be put to execution be the Justice, Schireffis, Stewards, Baillies, Lordes of Regalities and Royalties, their Deputes, and uthers ordinat Judges competent withiu this Realme, with all rigour, having power to execute the samin." (Niuth Parliament, IV of June, 1563.) R. V. R. § 4. The payees and indorsees of every such note payable to them or their order, and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned against the makers and indorsers of the same respectively, in like manner as in cases of inland bills of exchange, and not otherwise. NEGOTIABLE INSTRUMENT — STATEMENT NEW YORK COURT OF APPEALS, SECOND DIVISION, CARNWRIGHT V. GRAY.* The statute of this State does not require a promissory note to express value received upon its face. A promissory note payable thirty days after death of the maker is valid. APPEAL from a judgment of the General Term of the Third Judicial Departinent, which affirmed a judgment entered upon a verdict. The action was brought to recover upon a written instrument, of which the following is a copy: "QUARRYVILLE, September 2, 1871. "Thirty days after death I promise to pay to Cornelius Carnwright fifteen hundred dollars, with interest. SAMUEL P. FRELIGH." The plaintiff gave no evidence of the transaction out of which the instrument arose, and none of the actual consideration thereof, but having offered testimony tending to prove the genuineness of the maker's signature, put the note in evidence and rested his case. Peter Cantine and John J. Linson, for appellants. F. L. Westbrook and J. Newton Fiero, for respondent. BROWN, J. When the plaintiff rested his case, and again at the close of the testimony, the defendant moved to dismiss the complaint upon the ground that no proof had been given that the instrument sued upon had any consideration. These motions were denied and the court instructed the jury that the instru*S. C., 38 St. Rep. 56, affirming 33 id. 98; 11 N. Y. Supp 278. Our statute is a substantial re-enactment of the statute of Anne (3 & 4 Anue, chap. 9), which provided that "all notes signed by a person promising to pay to another his, her or their order or to bearer," should be construed to be by virtue thereof due and payable to any such person to whom the same is made payable, etc. This statute was held by the courts of England to include within its terms a non-negotiable note. Smith v. Kendall, 6 Durnford & East. 123; Burchell v. Slocock, 2 Ld. Raym. 1545; 3 Kent's Com. 77. In the case first cited Lord Kenyon said: "A note may be made payable to 'A.' or bearer, 'A.' or order, or to 'A.' only." Similar decisions were made by the courts of this State under our own statute. Downing v. Backinstoes, 3 Caines, 137; President v. Hurtin, 9 Johns. 217; Kimball v. Huntington, 10 Wend. 675; Hall v. Farmer, 5 Den. 484. In Downing v. Backinstoes, a non-negotiable note was declared on as within the statute and the defendant demurred on the ground that the declaration did not allege the transaction and consideration upon which the note was given. The court gave judgment for the plaintiff, saying "the very point was settled in Green v. Long, April term, 1798, in conformity to the adjudications in Westminster Hall." lu President v. Hurtin it was said: "The note set forth is a good promissory note within the statute, though it has not the words 'bearer or order.' This is the established English law and the same rule is recognized by this court." In Kimball v. Huntington the action was upon a due bill in this form: "Due Kimball & Kenston, three hundred and twenty-five dollars, payable on demand." Judge Nelson said: "The instrument is a promissory note within the statute. Neither the acknowledgment of value received or negotiable words are essential to bring it within the statute." See also Carver v. Hayes, 47 Me. 257; Franklin v. March, 6 N. H. 364. No authority is cited in the courts of this State or of England holding that a non-negotiable note is not within the terms of the laws cited, and we are of the opinion that the language of our statute includes a note payable to a person without words of negotiability. The instrument sued upon being therefore a promissory note within the statute of this State, it follows that it imports a consideration. By the express terms of the statute the sum of money therein mentioned is declared to be " due and payable as therein expressed." That it is "due and payable" according to its terms is the legal conclusion which the court must draw from the instrument itself. A valid contract is thus declared to exist and of course a consideration must be implied. Hence "value received" need not appear on the face of the note as those words express only what the law implies. Hatch v. Trages, 11 Ad. & Ell. 702; Hall v. Farmer, 5 Den. 484. The effect of laws which make promissory notes negotiable or which authorize actions of debt upon them though non-negotiable, is to take them out of the common-law rule which requires that every contract must be shown by the party who sues upon it, to be supported by a consideration, and enables the holder to maintain an action thereon without alleging or proving a consideration. In other words a consideration is implied from the character of the instrument. Peasley v. Boatwright, 2 Leigh, 195; Hatch v. Trages, supra. The English statute was enacted to settle the controversy that prevailed whether under the customs of merchants promissory notes were negotiable. They were thereby declared to be assignable or indorsable over in the same manner as inland bills of exchange were according to the customs of merchauts, and holders were empowered to maintain actions thereon in the same manner as they might do upon any inland bill of exchange made or drawn according to the custom of merchants. Our statute contains similar provisions. Promissory notes and inlaud bills of exchange were by virtue of these laws put upon an equality. They were made negotiable if they contained words of negotiability, but whether negotiable or not and whether they expressed value received or not, it was no longer necessary in actions thereon to aver and prove consideration. Such was and is the rule as to inland bills of exchange. 1 Danl. Neg. Inst., § 161; Raubitschek v. Blank, 80 N. Y. 479; Averett's Adm'r v. Booker, 15 Gratt. 163; Wells v. Brigham, 6 Cush. 6. And the same rule under the statute was made applicable to promissory notes. Townsend v. Derby, 3 Metc. 363; Dean v. Carruth, 108 Mass. 242; Bank of Troy v. Topping, 9 Wend. 277; 13 id. 557; Chitty Bills (9th Am. ed.), 78-181; Paine v. Noelke, 53 How. Pr. 273; Story Prom. Notes, § 51; 3 Kent Com. 77, 78; 1 Pars. Cont. (6th ed.) 249; 1 Pars. Bills, 193. The statute does not require a note to express value received upon its face and no definition of such an instrument requires the expression of that fact. The note sued upon, although by its terms payable after the death of the maker, was a valid instrument. A promissory note is defined to be a written engagement by one person to pay absolutely and unconditionally to another person therein named, or to the bearer, a certain sum of money at a specified time, or on demand. Story Prom. Notes, § 1; Coolidge v. Ruggles, 15 Mass. 387. It must contain the positive engagement of the maker to pay at a certain definite time, and the agreement to pay must not depend on any contingency, but be absolute and at all events. Tried by this standard the instrument set out in the complaint was a valid promissory note. The fact that it was payable after the death of the maker did not affect its character. 3 Kent Com. 76. It follows from these views that the motion to dismiss the complaint was properly denied, and there was no error in the charge of the court. The point made by the appellant that the court erred in its charge as to the burden of proof on the question of consideration, assuming that evidence pro and con upon that question was given, was not raised at the trial. The proposition made by the defendant at the close of the judge's charge, and the only one to which an exception appears in the record, was as follows. "In order that there may be no doubt about our position we ask the court to charge the jury that there has beer no evidence given of consideration, and to direct a verdict for the defendant upon that ground." The defendant having thus squarely planted himself on the ground that there was no evidence of consideration, and asked the court to direct a verdict in his favor, cannot now claim that there was evidence for the jury, and that he was entitled to a different instruction from that given. The defendant's claim all through the trial was that the note did not import a consideration, and that the plaintiff could not recover without proof of that fact, and his motion to dismiss the complaint and to direct a verdict in his favor, and his exceptions to the charge, all sharply present that question, but he nowhere claimed that he had given evidence which, if believed by the jury, overcame the presumption arising in favor of the note. This clearly appears from the statement I have quoted. The exceptions to the admission of evidence present no error, and the judgment should be affirmed. All concur, except FOLLETT, C. J., and VANN, J., dissentiug, and PARKER, J., not sitting. NEW YORK COURT OF APPEALS, JUNE 2, 1891. BUFFALO LOAN, ETC., Co., AS GUARDIAN, V. THE KNIGHTS TEMPLAR AND MASONIC MUTUAL AID ASSOCIATION.* Where there is nothing in the contract of insurance requiring the cause of death to be communicated to the association by a claimant, the insurer cannot, under guise that the requirement that "satisfactory proof" of the death of the assured be given, demand information of the cause of death. The trial judge, upon the proofs being offered in evidence by the defendant, refused to permit the certificate of the physician, furnished by the guardian to the association, and stating the cause of death to be delirium tremens, to be read in evidence. Held, no error. Such certificate was not inadmissible as being made through the medium of the certificate of the attending physician, but because the infant was not bound by the admission of the guardian in furnishing it; an act not required by the contract of insurance. The court properly excluded the records of the board of health of Buffalo, and the certificate of the attending physician, filed with the board, stating the death of the insured. APPEAL from judgment of the Supreme Court, General Term, Fifth Department, affirming judgment for plaintiff entered upon the verdict of a jury. David F. Day, for appellant. John G. Milburn, for respondent. ANDREWS, J. By the terms of the certificate of membership the defendant obligated itself to pay to the heirs or legal representatives of the assured the sum payable on the policy, "within sixty days after due notice and satisfactory proof of the death (during the continuation of the contract) of the said Johu Roberts." There is no requirement that the cause of death shall be communicated to the association by a claimant, nor under the policy could this be exacted. The beneficiary of the policy performed his entire legal obligation under the contract when he gave the association due notice of the death of the insured and furnished proof that the death had in fact occurred. The words "satisfactory proof" entitled the association to demand that the fact of death should be shown *S. C., 38 N. Y. St. Rep. 247; 27 N. E. Rep. 942. |