The plaintiffs, who are the beneficiaries named in a benefit certificate issued to the intestate by the Home Circle, a fraternal beneficiary association organized under the laws of this Commonwealth, seek to recover the amount named in the certificate from the defendant, a corporation of like character chartered by the State of Tennessee. The grounds of recovery as stated in the first and second counts of the declaration are, that by the consolidation between the respective corporations the defendant assumed and agreed to pay the amount, or that having accepted and treated the intestate until his death as if he were a member of its organization it is liable to the same extent as if it had issued the certificate.
We are of opinion that the action cannot be maintained on either ground.
While the defendant admits that all assessments were paid and due notice of death given, it has pleaded and relies upon a bylaw of the Home Circle in force when the intestate joined, that “No action at law or in equity in any court shall be brought or maintained in any cause or claim arising out of any membership, benefit certificate, or death of a member, unless such action is brought within one year from the time when such right of action accrued.” But if at the date of the writ this period had long since expired, the plaintiffs contend that the by-law forms no part of the contract, or that if originally applicable it has been waived. The certificate, however, recites that it is issued and accepted upon condition that the member complies in the future with the laws, rules and regulations now governing the fund, or that hereafter may be enacted by the supreme council to govern the fund, and the death benefit is expressly declared to be payable only in accordance with, and under the provisions of, the laws governing the fund.
The by-law is not unreasonable. It protects the fund from which death benefits are to be paid from stale claims which otherwise might be so delayed in presentation that satisfactory evidence as to their validity might be lost, as well as enables the order to meet death claims and to levy assessments promptly.
Nor has the by-law been waived. The only excuse for the delay is explicitly stated to have been the desire on the part of the plaintiffs to ascertain the outcome of the litigation in Timberlake *427v. United Order of the Golden Cross, 208 Mass. 411, before bringing suit. It does not appear that the defendant assented to the postponement or in any way induced the plaintiffs to forbear pressing their claim in the courts. The essential elements from which the intentional relinquishment by the defendant of the right to rely on the by-law could be found are lacking. Schwarz v. Boston, 151 Mass. 226. Rand v. Hanson, 154 Mass. 87. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391. Paul v. Fidelity & Casualty Co. 186 Mass. 413. Solari v. Italian Society of Columbus, 211 Mass. 382.
t It being settled that the plaintiffs are bound by the terms of the contract which includes the by-law the second ruling requested should have been given. Eliot National Bank v. Beal, 141 Mass. 566, 567, 568. Reynolds v. Royal Arcanum, 192 Mass. 150, 155. Attorney General v. Colonial Life Association, 194 Mass. 527.
The attempted consolidation having been enjoined by a suit in chancery against the defendant in the courts of its domicil, it never has been perfected, and all the funds received from the Home Circle or its members have been paid into court under the decree, in the suit in equity in Tennessee, in which the receiver of the Home Circle appointed by this court has intervened, and the plaintiffs also have presented their claim. It is not necessary to determine whether the defendant under these circumstances can be compelled to pay a claim, if otherwise valid, in violation of the injunction. Moshenz v. Independent Order of Ahawas Israel, 215 Mass. 185. It is true the intestate never became a party to the suit in chancery, and that he executed a release to the defendant in reduction of the amount named in the certificate, and has paid all assessments as they became due on notice from the defendant’s officers, without knowledge of the fact that moneys received from members of the Home Circle were kept distinct from moneys received from its own certificate holders. If nothing more appeared there is evidence that under the terms of the consolidation Ulman had been accepted as a member by the defendant on the basis of the original certificate as reduced by the release, and that by agreement of all concerned the defendant had succeeded to, and assumed the contracturai obligations of the Home Circle. Griffin v. Cunning*428ham, 183 Mass. 505. And the general finding for the plaintiffs might be permitted to stand under the second count in accordance with Timberlake v. United Order of the Golden Cross, 208 Mass. 411, and St. 1913, c. 716, § 1. But while we held in Timberlake v. United Order of the Golden Cross, that the attempted consolidation even if void did not relieve the defendant from liability upon the agreed facts then appearing, with such inferences of fact as the trial judge could properly draw, the case now stated shows that when, if ever, the intestate became a member of the defendant order, the laws of Tennessee found in St. of 1905, c. 480, § 7, among other restrictions prohibited the defendant from admitting to beneficial membership any person who had not been examined by a legally qualified practicing physician, and by § 36, violation of this provision by the defendant or its officers is made a statutory misdemeanor punishable by fine. The intestate, who never applied for examination, must be presumed to have known of this limitation. Hotchkin v. Third National Bank of Syracuse, 219 Mass. 234. Pittsburgh, Cincinnati & St. Louis Railway v. Keokuk & Hamilton Bridge Co. 131 U. S. 371.
If the negotiations and subsequent proceedings had been merely an abuse of its general powers unknown to the intestate, its want of authority to make the contract would not be a defence. Timberlake v. United Order of the Golden Cross, ubi supra, and cases cited. But the defendant, for the reasons stated, not being es-topped from reliance on the statute, the third request should have been given.
The judgment for the plaintiffs accordingly must be reversed and judgment entered for the defendant. St. 1909, c. 236.
So ordered.