than 8 per centum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever." Our statute defines usury as "the reserving | sum of money, any rate of interest greater and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of money than the lawful interest." Civil Code 1910, § 3427. The Code (§ 3436) further declares: "It shall not be lawful for any person, company, or corporation to reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any II. In periodical payments. The taking of interest annually in advance at the highest legal rate, computed on the amount to be paid by the borrower, and not merely on the amount received by the borrower, is not usury under a statute providing that the rate of interest agreed upon, not to exceed the maximum, may be taken yearly or for any shorter period or in advance if so expressly agreed. Stcen v. Stretch, 50 Neb. 572, 70 N. W. 48. See Purvis v. Frink, 57 Fla. 519, 49 So. 1023, and Newton v. Woodley, 55 S. C. 132, 32 S. E. 531, 33 S. E. 1, supra. III. For what length of time allowed. Whether or not the taking of interest at the highest legal rate in advance is usury is sometimes made to defend upon the length of time the note has to run. Interest by way of discount may be taken in advance for short periods. Crowell v. Jones, 167 N. C. 386, 83 S. E. 551. That interest paid in advance on a shortterm loan is not usurious is the opinion expressed obiter in Howell v. Pennington, 118 Ga. 494, 45 S. E. 272, but that point is not decided. This point was also reserved in Patton v. Bank of Lafayette, 124 Ga. 965, 5 L.R.A. (N.S.) 592, 53 S. E. 664, 4 Ann. Cas. 639, where the taking of interest in advance on a short-time loan was held not to be usurious where the days of grace had not been counted, as the holder of the note (a bank) might have done, and therefore the rate of interest actually received was within the legal rate. In Howell v. Pennington, supra, the entire amount of the loan was given to the borrower, who thereupon executed a note to the lender for the amount of the interest for the term of the loan, together with interest on this interest. This was held to be in excess of the lawful legal rate, and therefore usurious. See Willett v. Maxwell, 169 Ill. 540, 48 N. E. 473, supra. A loan for one year is a short-term loan. Crowell v. Jones, supra. See Covington v. Fisher, 22 Okla. 207, 97 Pac. 615, and Webb v. Pahde, Tex. Civ. App., 43 S. W. 19, supra. A loan having five years to run was held a long-term loan so as to make it usurious where the aggregate of the amount reserved and that contracted to be paid exceeded the All laws respecting the rate of interest charged for the loan of money by individuals are applicable to banks. Civil Code 1910, § 2336. Titles to property made as a part of an usurious contract or to evade the laws lawful rate. McCall v. Herring, 116 Ga. 235, 42 S. E. 468. The statutes in some jurisdictions make it lawful to take interest in advance for a certain short period. These statutes, by application of the doctrine expressio unius est exclusio alterius, are held to make unlawful the taking of interest in advance for a period longer than that named. Thus, a statute making it lawful to take interest in advance for twelve months renders the taking of interest for a longer period than twelve months in advance usurious. Ellis v. Terrell, 109 Ark. 69, 158 S. W. 957. The court expresses an opinion that the taking of interest in advance for a longer period than twelve months is usurious in the absence of statute. Without making any distinction between long and short term loans, it has been held. in case of long-term loans that the taking of interest in advance at the highest legal rate for a long term is usury. Thus, under a statute making valid any, rate of interest which may be agreed upon not exceeding $10 per year upon $100, upon any loan or forbearance of money, and providing that "the rate of interest so agreed upon may be taken yearly or for any shorter period or in advance if so expressly agreed," the reservation of 3 per cent on a loan for a period of five years, together with the giving of a note for the amount actually received by the borrower plus the interest so reserved, which amount bore interest at the rate of 7 per cent, is usurious. Allen v. Dunn, 71 Neb. 831, 99 N. W. 680. The taking of only a part of the interest in advance has been treated as usurious without any discussion, where the per cent thus taken in advance added to that reserved in the note amounted to the highest legal rate. Thus, a loan of $200 for five years, in which $40 was reserved in advance and five interest notes for $12 each were given, was treated as usurious in Ellis v. Terrell, supra. The court states that $160 bearing interest at 10 per cent, the highest legai rate, for five years, would require $240 to discharge, while under the plan involved the debtor was required to pay $260, or $20 more than legal interest. A loan of $1,600 for five years, in which $80 was reserved and 7 per cent contracted to be paid, was held to be usurious where the rate was 8 per cent. McCall v. Herring, supra. See Allen v. Dunn, supra. W. A. E. on any proper basis of logic, and is defensible only on the principle of uniformity. In this connection it may be well to notice that our statute applies the laws of interest and usury as affecting individuals to banks, and this affords strong ground for the conclusion that banks cannot ingraft on the law any usage or custom of banks variant with the law of usury. Perhaps a majority of the American courts are in line with the English decisions, and extend to individuals the same privilege of discount, as affecting the interest demanded in advance, as is allowed by the usage of banks. But our statute expressly forbids an increase of the maximum interest rate by way of discount; and usage cannot override a positive enactment of law. In some jurisdictions statutes prohibit banks from taking any greater rate of interest or discount on any note or draft or other security than a prescribed rate, but against usury are void. Civil Code 1910, § | tom of banks to individuals is not allowable 3442. That interest at the highest legal rate cannot be reserved in advance in loans extending over a year will not be controverted. Numerous decisions establish that proposition. Is there any proper ground of differentiation between reserving interest at the highest legal rate on long-term loans and in taking such interest in advance on shortterm loans, within the purview of our statutes? It has been stated, in the course of the argument in several of the opinions of this court, that the taking of interest in advance on short-term loans in the usual and ordinary course of business is not usurious. Mackenzie v. Flannery, 90 Ga. 591 (5), 599, 16 S. E. 710; Union Sav. Bank & T. Co. v. Dottenheim, 107 Ga. 606, 614, 34 S. E. 217; McCall v. Herring, 116 Ga. 235, 243, 42 S. E. 468. On the other hand, it has been 'strongly intimated that the statutes respecting interest and usury apply alike to short and long term loans. Howell v. Pennington, | provide that such interest or discount may 118 Ga. 494, 45 S. E. 272. But the observations in those cases are obiter dicta, and the proposition is res integra in this state. Patton v. Bank of La Fayette, 124 Ga. 965, 5 L.R.A. (N.S.) 592, 53 S. E. 664, 4 Ann. Cas. 639. be calculated and taken according to established rules of banking. In such cases it is held that the statute permits the taking of interest in advance upon loans made by a bank according to the established rules of banking. Ticonic Bank v. Johnson, 31 Me. 414; Sanford v. Lundquist, 80 Neb. 414, 18 L.R.A. (N.S.) 633, 114 N. W. 279, 118 N. W. 129. If we follow the words of the statute, there can be no legitimate differentiation of short-term from long-term loans. Interest is compensation for the use of money. In determining whether a greater sum than the maximum rate has been reserved, we look to the amount received and the interest reserved. If the borrower does not receive all of the principal stated in his obligation, because of the reservation of enough to pay the interest, he does not receive the full amount of his loan. The real principal of his obligation is the amount which he actually receives. When he pays the principal as stated in his obligation, from which the maximum rate of interest was deducted in advance, he pays a sum in excess of that which he received, and the interest on it. This is true in both short and long loans, and the only difference is that, as applied to short loans, the disparity between the sum reserved for interest and the actual interest is not nearly so great as in long loans. The rate of interest and the effect of taking more than the maximum are peculiarly the subject of statutory regulation. Our law In many jurisdictions a rule has been evolved that interest may be taken in advance on short-time paper without rendering the transaction usurious. This rule of law is said to have arisen out of the custom and practice of banks. Webb, Usury, § 111; Tyler, Usury, 298. A very interesting history of the legislation respecting interest and usury in England and in the state of Georgia will be found in the opinion of Mr. Justice Cobb, in Union Sav. Bank & T. Co. v. Dottenheim, supra. In England by Stat. 12 Anne, 5 per cent was the maximum rate of interest, and all bonds and assurances for the payment of any money to be lent, whereby a greater sum was reserved or taken for interest, were declared void. The practice grew up for bankers to require payment of bank discount in addition to the highest rate of interest. In Auriol v. Thomas, 3 T. R. 62, it was held that in the discount of bills a banker may take more than the highest legal rate, if the excess be taken only to defray the expense of remittance, provided such excess be reasonable, and that it be not a cover for usurious interest. If the transaction was not a discount in the way of trade, but was merely employed as a means of obtaining more than the legal rate of interest, it would be usur-makers were not content with a simple stateious. Marsh v. Martindale, 3 Bos. & P. 154. ment of the rates of interest and a general The rules and practices of the banks in this definition of usury (Civil Code 1910, SS regard were extended to transactions be- 3426, 3427), but undertook to denounce as tween individuals and to paper not nego- unlawful for any person, bank, or other cortiated at a bank. The extension of the cus-poration to reserve or take for any loan of money any rate of interest greater than 8 To constitute usury it is essential that 1199 finding that deceased suffered death from ac- Where a policy of accident insurance It is not necessary that the demand be made upon her in person, so long as it is communicated to her. Such a demand, to be effective, must be made within a reasonable time after death, and at a reasonable time and upon a proper occasion, and when made upon the widow between the death and burial of her husband, the language should leave nothing to intendment, but should be free from doubt or ambiguity. In this case a demand for an autopsy was made by the claim auditor of the company at 10:18 A. M. P. M. The funeral was set for 1 Friends were beginning to arrive from a distance, and the body was being The demand was a prepared for burial. The medical adviser, present demand, calling for present compliance or refusal. in Minneapolis, many whom the auditor had in mind to perform the autopsy, was would have caused a delay in the funeral miles away. Compliance with the demand determined. The claim auditor had been obsequies, the extent of which cannot be within 2 miles of the place of demand, investigating the cause of death, since the day before. Held, the demand for an auAll the Justices concur, except Fish, Ch. topsy was not made at a reasonable time or J., absent. Beach v. MINNESOTA SUPREME COURT. notice of claim upon a proper occasion, and its refusal did HENRY A. JOHNSON, Admr., etc., of A. L. pany denies liability wholly on another Swenson, Deceased, Respt., ground. Appeal calling witness for cross-ex amination. 3. No reversible error can be predicated on a ruling permitting plaintiff to call the claim auditor of defendant for cross-examination under the statute, where plaintiff did not seek to avoid his testimony, and de- the form of the questions would have been proper had he been called as plaintiff's wit Insurance Generally as to right of court to order disinterment of corpse for evidential purposes, see note in 32 L.R.A. (N.S.) 513; for privilege as to information acquired by autopsy, see note in 38 L.R.A. (N.S.) 1186; as to admissibility of findings of coroner to ness. (March 5, 1915.) show cause of death, see notes in 68 L.R.A. 285 and 45 L.R.A. (N.S.) 404. The propriety and necessity of these provisions have been recognized by the courts. Thus, the provision in an accident policy as to the examination of the body of the insured is a reasonable provision, and quite Wehle v. necessary in accident insurance, as affording protection against fraud. United States Mut. Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. 598, 47 N. E. 35. A dead body belongs to the surviving husband or wife. PPEAL by defendant from an order of the District Court for Washington County, denying a motion for judgment not- Larson v. Chase, 47 Minn. 307, 14 L.R.A. withstanding a verdict for plaintiff, or for 85, 28 Am. St. Rep. 370, 50 N. W. 238; a new trial, in an action brought to recover Brown v. Maplewood Cemetery Asso. 85 the amount alleged to be due on an accident | Minn. 498, 89 N. W. 872; Lindh v. Great insurance policy. Affirmed. Northern R. Co. 99 Minn. 408, 7 L.R.A. (N.S.) 1018, 109 N. W. 823; Sacks v. The facts are stated in the opinion. Messrs. Simon Michelet and Clyde R. Minneapolis, 75 Minn. 30, 77 N. W. 563; White, for appellant: A demand for an examination of and autopsy upon the body of the deceased was duly made by the defendant company, and unconditionally refused by the wife of the deceased, within the meaning and intent of the policy of insurance. The demand was made upon the proper person. The right to the possession of a The court in Whitehouse v. Travelers' Ins. Co. Fed. Cas. No. 17,566, said: That the necessity of the provision in accident policies that insurer shall have the right to make an autopsy can be seen "where a man might die and be buried, and it be alleged afterward that the death was caused by accident, whereas, if an autopsy had been made, it might have been shown otherwise." Time for making demand for autopsy or examination. As will be seen, JOHNSON V. BANKERS' MUT, CASUALTY INS. Co., in holding that the demand for an examination must be made at a reasonable time in order that a refusal shall work a forfeiture, finds support in the following cases: Beaulieu v. Great Northern R. Co. 103 Minn. 47, 19 L.R.A. (N.S.) 564, 114 N. W. 353, 14 Ann. Cas. 462. The demand was made within a reasonable time after the death of the insured, and that question should not have been submitted to the jury. American Employers Liability Ins. Co. v. Barr, 16 C. C. A. 51, 32 U. S. App. 444, 68 Denial by widow of assured under accident policy, of permission to insurance company to exhume and examine her dead husband's body three or four weeks after it had been embalmed and buried, is not a defense to an action on the policy by the beneficiary, who was a nephew of the deceased, where there is no evidence that he refused to allow the body to be examined either before interment, when it was in his power to grant the request, or that he refused such request after interment, or that it was in his power to grant the request to exhume. American Employers' Liability Ins. Co. v. Barr, 16 C. C. A. 51, 32 U. Š. App. 444, 68 Fed. 873. In Ewing v. Commercial Travelers' Mut. Acci. Asso. 55 App. Div. 241, 66 N. Y. Supp. 1056, affirmed without opinion in 170 Under the provision of an accident policy N. Y. 590, 63 N. E. 1116, it was held that giving insurer the right to examine the under a provision of an accident policy that body of the insured, failure to extend such "no claims shall be payable under this cerpermission upon demand made at a reasona- tificate unless any medical adviser of the ble time and place before burial will pre-association shall be allowed to examine the clude recovery upon policy. Patterson v. person of the member in respect to any Ocean Acci. & Guarantee Corp. 25 App. D. C. 46. alleged cause of death, then and so often as may be necessary or reasonably But refusal to permit examination of required on behalf of the association," debody of assured ten days after interment mand for examination must be made before will not work forfeiture of policy where death; and so, refusal of demand made immediate notice of death was given to the nearly one month after interment will be company. Wehle v. United States Mut. no defense to an action on the policy. The Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. court said: "If this should be interpreted 598, 47 N. E. 35. The court stated that as conferring upon the insurance company the provision authorizing examination of an absolute and unconditional right to exthe body should have been availed of imme-hume and examine at least once the body diately upon receipt of notice of death, and of any member, on pain of forfeiture of that the delay in the demand was, as a matter of law, unreasonable in the absence of any fact or circumstances excusing it. And in Root v. London Guarantee & Acci. Co. 92 App. Div. 578, 86 N. Y. Supp. 1055, affirmed without opinion in 180 N. Y. 527, 72 N. E. 1150, it was held that under a provision of accident policies "that any medical adviser of the company shall be allowed to examine the body of the right to recover, it would be giving to it the full force which defendant claims for it. If a body should by the living relatives be cremated instead of buried in the ground, no recovery could be had under the policy. But does this clause necessarily mean so much? The contract is with a member of the association; it is in part for the benefit of the assured; in case of partial disability from accidental causes, the asassured," a delay until day after burial insured is to receive the benefits, and he making demand for autopsy was unreasona- agrees that the medical adviser shall be ble, as the company knew of the assured's allowed to examine his person,-'the person death two days before the burial. of the member.' There is no express stipu Wildey Casualty Co. 176 Mass. 418, 57 N. E. 673; Breeden v. Ætna L. Ins. Co. 23 S. D. 417, 122 N. W. 348; Newman v. Springfield F. & M. Ins. Co. 17 Minn. 123, Gil. 98; First Nat. Bank v. American Cent. Ins. Co. 58 Minn. 492, 60 N. W. 345; McCarvel v. Phoenix Ins. Co. 64 Minn. 193, 66 N. W. 367; Lake Superior Produce & Cold Storage Co. v. Concordia F. Ins. Co. 95 Minn. 492, Fed. 873; Wehle v. United States Mut. | bility Assur. Corp. 122 Fed. 828; Moore v. Acci. Asso. 153 N. Y. 116, 60 Am. St. Rep. 598, 47 N. E. 35; Ewing v. Commercial Travelers' Mut. Acci. Asso. 55 App. Div. 241, 66 N. Y. Supp. 1056; Root v. London Guarantee & Acci. Co. 92 App. Div. 578, 86 N. Y. Supp. 1055; Union Cent. L. Ins. Co. v. Hollowell, 14 Ind. App. 611, 43 N. E. 277; Grangers' L. Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446. Messrs. Wilson & Thoreen, for respond- 104 N. W. 560; Taylor-Baldwin Co. v. ent: The appellant waived any defect in the notice of death and failure to file final proof of loss. Northwestern F. & M. Ins. Co. 20 Ann. Cas. 438, note; Canadian R. Acci. Ins. Co. v. Haines, 21 Ann. Cas. 919, note; Jennings v. Brotherhood Acci. Co. 18 L.R.A. (N.S.) 109, note; Phoenix Ins. Co. v. Taylor, 5 Minn. 492, Gil. 393; Butler Bros. v. American Fidelity Co. 120 Minn. 157, 44 L.R.A. (N.S.) accomplished, to expose which the company has exhausted every other method known to law. Grangers' L. Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446. Upon whom demand must be made. In holding that the demand must be made upon a proper person, JOHNSON V. BANKERS' MUT. CASUALTY INS. Co. is in accord with Root v. London Guarantee & Acci. Co. 92 App. Div. 578, 86 N. Y. Supp. 1055, affirmed without opinion in 180 N. Y. 527, 72 N. E. 1150, which held that forfeiture of claims under accident policies cannot be predicated on refusal of demand for autopsy, made upon one not a relative of the deceased, and who had no authority to grant the privilege. 1 C. J. 473, 480; Fisher v. Travelers' Ins. Co. 124 Tenn. 450, 138 S. W. 316, Ann. Cas. 1912D, 1246; Hurt v. Employers' Lialation here that the defendant may dissect | without examination a fraud is likely to be the body of the member; no stipulation for a forfeiture should any relative having lawful custody of the body of a deceased member refuse to permit it to be dug up and dissected. I think the policy holder interpreting this clause to bind the member so long as the member has control of his own person would place upon it a rational construction. If his right to 'examine the person of the member' in respect to any cause of death' is extended for a reasonable time after death, and so long as the body is unburied or not finally disposed of, I think the utmost limit of the privilege stipulated for would be reached. Thereafter other interests than the wishes of the beneficiary or the expressed wishes of the contracting member while living might reasonably be expected to prevail. In any case, I think a party who alleges a contract right to invade the tomb, or the graves of the buried dead, should be sure of the language of his written agreement; it should at least be unmistakably clear, the purpose should be apparent, and the terms so plain that inference or conjecture need not be resorted to to discover the true intent of the contracting parties. If the policy in question in plain terms stated to an applicant for membership that by accepting membership the applicant bartered to the insurer the right at any time to dig up and examine or dissect his dead body, it is quite conceivable that there would be few applicants for membership." Where no effort was made for an autopsy while the body of an insured was in the hands of the coroner, although liability was denied because of suicide by poison, and no reason is shown why an application to the court for an order to exhume the body was delayed until nine months after death, four months after commencement of the action, and two days before trial, such order is properly refused. Union Cent. L. Ins. Co. v. Hollowell, 14 Ind. App. 611, 43 N. E. 277. An order compelling the exhumation of a body in plaintiff's control should be granted only, upon strong showing that And see also American Employers' Lia bility Ins. Co. v. Barr, 16 C. C. A. 51, 32 U. S. App. 444, 68 Fed. 873. By whom autopsy to be made. It is not necessary that an insurance company call the attending physician to make an autopsy, but it may call its own physician; and so, failure to call the attending physician is not evidence per se of fraud on the part of the company. Whitehouse v. Travelers' Ins. Co. Fed. Cas. No. 17,566. Necessity that insurance company be noti fied of intended autopsy. A provision of an accident policy that the insurer shall have the right to perform an autopsy does not give the insurer exclusive right to perform an autopsy, or require that the company be notified of an intended autopsy, and so failure to notify the company of an autopsy will not forfeit the policy. Crotty v. Continental Casualty Co. 163 Mo. App. 628, 146 S. W. 833. In Loesch v. Union Casualty & S. Co. 176 Mo. 654, 75 S. W. 621, the accident policy provided that if a post mortem be held without notifying the company in time to have its medical examiner present, all |