To the maintenance of this action, brought by the plaintiff as treasurer of the Union Mutual Fire Insurance Company, to recover the amount of a promissory note of hand given as a deposit note by the defendant upon receiving a policy of insurance from said company, the defendant has interposed various objections.
In relation to some of the grounds relied upon in the defence, and which have been the subject of our consideration, a preliminary objection was raised by the plaintiff, that they were not open to the defendant under his answer. It was admitted thai this point was now taken for the first time. This objection comes too late. Burnett v. Smith, 4 Gray, 50. Where a defence to an action is taken at the trial in the court of common pleas, and evidence introduced thereon, without any question as to its being open under the answer, and the defence is sustained by the ruling of the presiding judge, the plaintiff cannot, at the hearing in this court on exceptions to that ruling, object for the first time that this defence was not open under the answer, even though the writ and answer be referred to in the bill of exceptions as a part of the case.
1. It is objected that the defendant, if liable at all, is only liable for the amount of the assessment, and not for the amount of the note; that to hold otherwise would be to enforce a penal law of New Hampshire, as the recovery would be of a penalty for neglect of duty; and that the courts of Massachusetts cannot be required to enforce penal statutes of New Hampshire.
It is true that the provision, that if any member of the company shall neglect, for thirty days after due notice, to pay any assessment upon a deposit note, the whole note may be collected, is a provision found in a New Hampshire statute; but it is the statute incorporating this insurance company, frnd *295the defendant, by becoming a member of the company, has sub jected himself to the provisions of the charter, and of the by laws adopted by the company.
The effect of such collection of the entire note is really only to withdraw the credit given to a member who has proved regardless of his obligation to pay an assessment, and change the place of deposit of the amount of the deposit note from the pocket of the defendant to the treasury of the company, to ensure more prompt payment of his future assessments ; as the money, when collected, is required to be held by the company as trustee for the defendant’s use, to be applied, so far as is necessary, to pay assessments accruing from time to time, and the balance, not required for that purpose, to be repaid, at the expiration of the policy, to the person from whom it has been collected.
2. It is then said that the action in such case should not be an action on the note, but a special action on the case, setting out all the facts necessary to show the liability to pay the whole amount of the deposit note. This objection is not well founded in fact. It is true that the declaration sets out the note, and, had it stopped there, might have been obnoxious to the objection taken ; but it further proceeds to set forth in detail the facts of an assessment, a demand thereof, and neglect to pay the same, and the liability to pay the whole amount of the note under the charter and by-laws of the company. The declaration is, as it seems to us, sufficient in form to embrace the plaintiff’s claim.
3. It is objected that this action, if for the whole note, upon the ground of liability to pay the whole by reason of neglect to pay an assessment thereon, should not have been instituted in the name of the treasurer of the corporation, but in the name of the directors. This is supposed to result from the provision of the charter, § 9, wherein it is provided, that in case of such default and neglect to pay an assessment, “the directors may sue for and recover the whole amount of said deposit note.” We do not understand this to relate to the form of the action, but to the authority to institute an action to recover the whole *296note. It is to be done by their order, but not in their names as parties to the suit.
4. It is contended that the assessment was itself illegal, because the sum assessed upon the deposit notes includes not' only an assessment to the amount of actual losses by fire that the company were then liable to pay, but also interest on money borrowed, probable losses by bad debts, and an allowance for collecting assessments, in the form of an abatement for prompt payment of the same.
The promise of the defendant, in his deposit note, is to pay the same “in such portions and at such times as the directors of said company may agreeably to their act of incorporation and by-laws require.” The act of incorporation, § 6, requires it to be paid, “ in part or the whole, at any time when the directors shall deem the same requisite for the payment of losses or other expenses.” The seventh article of the by-laws authorizes the directors “ to borrow from time to time such sums of money as may be required to meet losses; and in making the next assessment, the sums thus borrowed, the interest thereon, and all necessary expenses, shall be included and assessed.”
No doubt the assessment must be limited to the legitimate objects declared in the charter and by-laws. But this will not prevent the directors from exercising a reasonable discretion in fixing the amount to be assessed. They may, we think, make a proper allowance for the deficiency that will result from insolvent members, making the assessments upon all members in proportion to the amount of their deposit notes. They may also properly include the necessary expenses of collection; and if, in their opinion, an allowance for prompt payment of the assessment to thefi treasurer directly will be more beneficial than to employ agents to collect these small sums thus assessed, they may make such an allowance, and consider that as a part of the expenses of collecting the assessments. If these allowances are reasonable, and consistent with the exercise of good faith on the part of the directors, they will not vitiate an assessment, made under a charter and by-laws such as exist in the present case.
*2975. It is next objected that there was no publication of the assessment made by the directors, and no evidence that the defendant had proper notice of the same.
No particular mode is prescribed, in which such publication and notice of an assessment are to be made and given. It would be sufficient to have given actual notice to each individual assessed, through a circular, if seasonably given. Whether such notice was given to the defendant, is a question upon which the parties are at issue, and that matter must be passed upon by a jury, if there was any competent evidence to go to the jury upon that point. We think there was evidence proper to be submitted to the jury, tending to show such notice to the defendant ; leaving to the jury to draw all proper inferences, and find as to the fact of notice. The facts testified to by Lang, as to the manner in which notices were made out and sent to the post office, is not alone sufficient to prove that the notices were deposited in the post office ; as the plaintiff, who is said to have carried a portion of -the notices to the post office, was not called as a witness. But the proof as to notice does not rest here. The facts testified to by the plaintiff’s attorney, as occurring at the time he made a demand upon the defendant for payment of the assessment, and the reason assigned by the defendant for not paying the same, are to be taken in connection with the other evidence, and submitted to the jury, who will pass upon the question, whether the notice of the assessment was given to the defendant.
The result is therefore that the exceptions taken by the plaintiff to the ruling of the court of common pleas must be sustained, the verdict set aside, and a new trial had.
Exceptions sustained.