The plaintiff claims one thousand dollars as. due her on a certificate of insurance granted upon the life of her husband by the defendant company. The case was tried to the jury, under the general issue, upon the important question whether the certificate was or not obtained from the company by the fraudulent representations of the husband.
At the close of the evidence, without previous notice or intimation that the point would be raised, the counsel for the company asked for a set of instructions the point of which was that the plaintiff could not maintain the action, or at any rate maintain it for more than nominal damages, because no proof had been adduced that any assessment had been made producing funds with which to pay the loss, and that there was no proof that in any other way the company had any funds for such purpose. And the company now contends that the burden of proof was on the plaintiff to show these facts. The presiding *180justice ruled, however, and we think correctly, that the plaintiff could maintain her case, on this point, upon the presumption that the company was in possession of sufficient funds, and that the burden was on the company to show the contrary if the contrary were true. State v. Churchill, 25 Maine, 306.
The certificate or policy under which the plaintiff asserts her claim is not exclusively on the so-called assessment plan, but there are other features combined with that principle. The promise of the certificate is not merely that the company will upon the death of a member assess so much on the surviving members, and collect and pay over the money collected to the beneficiary. There is much more than that to it. The promise is unconditional on the inside and outside of the policy. On the back of the same are printed these words : " All claims are payable within ninety days after due notice and proof of death.’’ On its inside is written and printed that the : "Association will within ninety days after receipt of satisfactory proof of said death pay to [the beneficiary] one-half of the benefit herein named,” the whole sum named being two thousand dollars.
There are several good grounds for supposing the company to have funds, if it does its duty. Its charter and by-laws provide that an assessment shall be made on the occurrence of each death iii order to provide the association with means to enable it to pay its losses, and the responsibility for the collection of assessments must be on the company and not' on the beneficiary. Besides assessments and dues, four dollars are annually payable by each member for the creation of an emergency fund, and forfeitures are also provided for to enure to the benefit of the company and add to its funds. We quote a by-law which would also indicate the probable possession of funds :
"Section 1. Not less than twenty per cent of all moneys collected on assessments levied to meet death and disability benefits shall be deducted and invested in accordance with section six of an act relating to life and casualty insurance on the assessment plan, approved March 1st, 1889, and shall only be used to meet death and disability claims whenever it would *181be deemed necessary by the board of directors to collect more than six assessments to meet such claims in any one year. After March 5th, 1899, the income of said fund shall be equitably-divided among certificate holders.”
The act of 1889, above referred to, requires every company which is organized on the assessment plan to have on hand an amount of funds equal to what would be one assessment on all its members.
We are aware that there are differences among courts as to the remedies most appropriate for the collection of claims against a company of a mutual and assessable character, and a considerable question has been whether the proceeding should be one in lawr or in equity. We feel clear, however, that on such a policy as this is, an action at law is a proper though perhaps not an exclusive remedy to recover a loss, although a resort to equity might be necessary to collect the legal judgment after it has been obtained. These views are fully supported by several cases and especially by the case of U. S. Mut. Accident Association v. Barry, 131 U. S. 60.
The correctness of the verdict upon the facts is doubtful, but we think it better stand. .
Motion and exceptions overruled.