new trial as to Arnold, it may as well be tried anew as to both cross defendants. There are circumstances under which a mortgage executed by a husband and wife may be foreclosed, though an action against the wife to recover the debt

is barred. Wood, Limitations, 4th ed. § 81d (4).

The judgment is reversed.

We concur: Wilbur, Ch. J.; Myers, J.; Lawlor, J.; Lennon, J.; Seawell, J.; Kerrigan, J.

It has been broadly stated that "a check may be given in payment of part of a debt, and such payment have the effect of tolling the Statute of Limitations as to the remaining indebtedness evidenced, and yet such check contain no word evidencing any acknowledgment of the existence of the note or of any indebtedness." Johnson v. Butler (1918) 41 S. D. 236, 170 N. W. 140.

But the decided weight of authority is to the effect that checks in payment of interest on a debt, standing alone and not referring to any existing debt owing by the drawer to the creditor, and containing no promise to pay money in discharge of any debt, do not satisfy a statutory provision that no acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take a debt out of the operation of the Statute of Limitations, unless the same is contained in some writing signed by the party to be charged thereby. Clunin v. First Federal Trust Co. (1922) Cal., 207 Pac. 1009; SEARLES v. GONZALEZ (reported herewith) ante, 78; McGinty v. Henderson (1889) 41 La. Ann. 382, 6 So. 658. And see Woodham v. Hill (1919) 78 Fla. 517, 83 So. 717, and Weil v. Jacobs (1903) 111 La. 358, 35 So. 599, as set out infra.

And it has been held, although, as subsequently shown, there is authority to the contrary, that notations on the check stubs to which the checks were originally attached, showing the purposes for which the checks were issued, cannot be proven to show an acknowledgment or promise sufficient to take the case out of the statute,

where they were not in any manner communicated to the creditor by the debtor; since a promise or acknowledgment, actual or inferable, can only be made to the creditor. Clunin v. First Federal Trust Co. (Cal.) supra.

But a check may be issued in payment of interest under such circumstances that by parol proof of extrinsic connecting facts in explanation. a sufficient acknowledgment may be shown to toll the statute. Applying this rule, it is held in the reported case (SEARLES V. GONZALEZ, ante, 78) that a debtor, by signing a check for the exact amount of a quarterly instalment of interest on a debt and delivering the same to the creditor's agent inclosed in an envelop with the notices which the agent had sent to him, and which referred to the debt, giving the amount and description thereof and the amount of interest due, acknowledges the debt in writing so as to toll the Statute of Limitations. It is said that the sending of the checks and the notices together in the same envelop so connected the two that they could be considered together, proof of such connecting facts being shown by parol.

And in England, under a statute providing that an acknowledgment or promise to pay, in order to take the case out of the Statute of Limitations, must be in writing, "provided always. that nothing herein contained shall alter. the effect of any payment of any principal or interest made by any person whatsoever," it has been held that a check given in part payment of a debt takes the case out of the statute, and permits.

suit thereon within the statutory period after the delivery thereof. Marreco v. Richardson [1908] 2 K. B. (Eng.) 584, 1 B. R. C. 485, 77 L. J. K. B. N. S. 859, 99 L. T. N. S. 486, 24 Times L. R. 624, 52 Sol. Jo. 516, 15 Ann. Cas. 329.

And in direct conflict-at least, as to result-with Clunin v. First Federal Trust Co. (Cal.) supra, it has been held in McGinty v. Henderson (1889) 41 La. Ann. 382, 6 So. 658, that although checks themselves do not establish a payment on a particular debt which will toll the Statute of Limitations, they do establish a payment which may be connected by parol with a particular debt, and that for this purpose the stubs of the check book from which they are taken are competent evidence, like other parol evidence. In so holding the court said: "Partial payment, made on a debt before prescription is acquired, is held to be such an implied acknowledgment as interrupts prescription, but such payment by a deceased debtor, like any other acknowledgment, must be proved by written evidence signed by him. In this case, however, the payments are proved by the written checks of the debtor, signed and issued by him to the creditor, who held and owned them, and only delivered them to the bank on their due payment, and by evidence conclusively showing that said checks were issued as payments on this particular debt. These checks undoubtedly evidence a payment by Henderson to McGinty on some account, and in discharge of some obligation; and, while they do not of themselves establish a payment on this particular debt, it is conclusively settled that where an acknowledgment in writing, signed by a deceased debtor, is proved, parol evidence is admissible to show the particular debt to which the acknowledgment was intended to apply. . . . Counsel for defendant cites a line of authorities holding that the acknowledgment, to take a debt out of prescription, must be made to the creditor or his agent; and that a mere writing acknowledging a debt, retained by the person

making it, and never delivered to the creditor or anyone else, cannot serve as an interruption of prescription. Wood, Limitations, 195; Allen v. Collíer (1879) 70 Mo. 138, 35 Am. Rep. 416; Edwards 416; Edwards v. Culley (1859) 4 Hurlst. & N. 378, 157 Eng. Reprint,

886. But it is evident that these authorities have no application to this case, where the writings relied on the checks-were issued and delivered to the creditor, were parted with by him only on their payment, and returned to the possession of the maker only to serve him as evidence of such payment. If the plaintiff were disputing the payment in this case, these checks, indorsed by him, would be sufficient evidence thereof, and it would be unreasonable to debar him from using them for the same purpose. Equally inapplicable are authorities quoted holding that mere entries on the books of a debtor cannot serve as an acknowledgment interrupting prescription. The checks are not mere entries on his books, and the entries on the corresponding stubs of the check book are not offered as, in themselves, operating an interruption, but as the natural and proper evidence to explain and establish the purpose for which the checks were issued, and the subject-matter to which they applied." However, in Weil v. Jacobs (1903) 111 La. 358, 35 So. 599, it was held that where the indorsement on a check, drawn to the order of the debtor and by him transferred to the creditor in payment of an instalment of interest due on the principal debt, was not in the handwriting of the debtor, or in the handwriting of anyone by him specially authorized, a statutory provision that parol evidence shall not be received "to prove any acknowledgment or promise of a party deceased to pay any debt or liability, in order to take such debt or liability out of prescription," but that such "acknowledgment or promise to pay shall be proved by written evidence signed by the party,

or by his specially authorized agent or attorney in fact," precluded the check and parol evidence, offered to connect the same with the indebted

amount is much less than the specified

sum.

The facts are stated in the opinion Messrs. Longstreth & Bohlinger, for appellant:

Defendant would not be liable for the acts of its agent if its agent was acting fraudulently or collusively.

Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792.

Insured was charged with notice of the provisions of the contract sued on. Woodmen of World v. Hall, 104 Ark. 538, 41 L.R.A. (N.S.) 517, 148 S. W. 526; Brotherhood of American Yeomen v. Fordham, 120 Ark. 605, 180 S. W. 206.

The court erred in its construction of the contract to the jury.

Capitol Food Co. v. Mode, 112 Ark. 165, 165 S. W. 637; Wilkes v. Stacy, 113 Ark. 556, 169 S. W. 796.

Messrs. Bush & Bush, for appellee: J. W. Boyd was the agent of the company, and he certainly must have known the age of his mother-in-law, and his knowledge is the knowledge of the company.

Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792; Walker v. Illinois Bankers' Life Asso. 140 Ark. 192, 215 S. W. 598.

The insured took out the policy, and there is no evidence that the beneficiary knew anything about it until three payments had been made.

Langford v. National Life & Acci. Ins. Co. 116 Ark. 527, 173 S. W. 414, Ann. Cas. 1917A, 1081.

McCulloch, Ch. J., delivered the opinion of the court:

Appellant is a fraternal benefit society, organized under the laws of the state of Arkansas. It does business on what the attorneys in the case designate as the pro rata assessment plan, no surplus funds being accumulated, but the members are grouped together in "circles," according to age, and when a death occurs an assessment is levied on the members of the particular circle to which the deceased belonged. The policy, or benefit certificate, as well as the by-laws, specifies the

of the court.

maximum amount of the benefit to be the sum of $1,000; but the certificate refers to the by-laws, which provide that the association "shall not be liable for the full face value of the certificate, unless full and prompt payment of all assessments shall have been made by all members of the group to which the deceased member belonged, and in no event shall said certificate have a greater value than the amount paid in by the whole membership of said group on the last assessment preceding the death of the insured, after deducting the cost of collecting said assessment."

Appellant accepted as a member Ellen S. Fox, and issued a certificate of membership to her, dated July 18, 1916, payable to appellee, who was Mrs. Fox's granddaughter. Mrs. Fox died in July, 1920, and this action was instituted on February 23, 1921, to recover the full amount ($1,000) mentioned in the benefit certificate. Appellant pleaded, among other things which are insisted on here as grounds for reversal, that Mrs. Fox misrepresented her age in the application which was made for membership in the society, that the by-laws did not authorize the issuance of a certificate to persons over sixty years of age, and that Mrs. Fox's age was above sixty at the time she joined. The answer also contained a denial that the indebtedness amounted to $1,000, if anything at all.

The case was tried before a jury, and the trial resulted in a verdict. and judgment in appellee's favor,

for the maximum amount stated in the policy. It appears from the undisputed evidence adduced in the case that the application of Mrs. Fox was solicited and accepted by J. W. Boyd, who was her son-in-law,

and who was appellee's father. In the application Mrs. Fox's age was stated at fifty-nine, and there is proof to show that she was about ten years older than that. The testimony is, however, conflicting, and the jury might have found either way as to the question of her age being above sixty. Mrs. Fox lived with her daughter, Mrs. Boyd, and there is testimony tending to show that she was an invalid at the time she made application for insurance in appellant society.

No testimony was introduced by either party as to what occurred between Boyd and Mrs. Fox at the time the application was made out; appellant contenting itself with attempting to prove that there was a misrepresentation as to Mrs. Fox's age, and that Boyd, her son-in-law, must, in collusion with Mrs. Fox, have participated in the fraudulent misrepresentations. The court in

structed the jury that, if there was a misrepresentation made concerning the age of Mrs. Fox, and if Boyd accepted the application with knowledge of such misrepresentation, appellant would be bound by that knowledge, and could not plead the misstatement of age in bar of appellee's right to recover on the policy. Appellant asked the court to give an instruction stating that, if Boyd, as agent, was acting fraudulently or collusively, appellant would not be bound by his knowledge, and would not be barred from pleading a misstatement as to age.

Appellant, so far as affects the present litigation, does not come within the terms of the statute regulating fraternal benefit societies (Acts of 1917, p. 2087; Crawford & M. Dig. §§ 6068 et seq.), for the reason that the benefit certificate involved in this case was issued to Mrs. Fox prior to the enactment of the statute, there being no statute at the time expressly restricting the powers of appellant in regard to age of of members. The by-laws of the society on that subject could be waived and were

Insurancefraternal-age limit-waiver.

waived if appellant, with knowledge of the misstatement, accepted the application and is-accepting and sued the certificate receiving dues with knowledge. to Mrs. Fox, and received payment of dues and assessments. It is unnecessary to determine whether or not appellant falls within the terms of the statute in other respects, inasmuch as the statute could have no effect on the question of the age of the applicant in this instance.

Appellant invokes the rule laid down by this. court in Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792, that (quoting from the syllabus) if an agent of an insurance company "in collusion with the applicant, even though acting within the apparent scope of his authority, perpetrates a fraud upon the insurance company by making false and fraudulent representations upon which the insurance is obtained, such fraud will violate the policy."

There is, we think, no evidence in this case that would justify a submission of the question of fraud on the part of Boyd, the agent. No effort was made to prove what occurred at the time the application was written, and there is no direct proof of fraud, either on the part of Mrs. Fox or Boyd. The most that the testimony tends to establish is that there was a misstatement of age. Fraud is not

Evidence

presumed, but must necessity of be proved. An in- proving fraud. ference of fraud may be drawn from proved facts, but here we have no proof that Boyd participated in any intentional misrepresentation as to Mrs. Fox's age. We think the court was correct in refusing to charge the jury on that subject.