whether effected with ordinary stock companies or with Judgment. benevolent associations not formed for business or profit, HAGARTY but simply for the benefit of its members.

It is difficult to see why or how they should design to draw a sharp line between the two classes. Both are equally for the benefit of wives and children; and the whole substance of the matter was and is a contract of insurance, in their own language, "based on the expectation of human life."

The appointment of the plaintiff as trustee was made in November, 1887. In the March following, the 51 Vic. ch. 22, was passed. Section 1 declared that the expressions "contract of insurance," "policy of insurance," and "policy," wherever they occur in the Act to secure to wives and children the benefit of life insurance, include any certificate or contract hereinafter mentioned, or in any way relating to life insurance.

Section 2 expressly declares that "the provisions of the said Act extend and apply to membership, beneficiary and other certificates and contracts relating to life insurance issued or entered into by any society or association of persons, &c., among the purposes of which is the insurrance of the lives of the members thereof exclusively," &c. At the end of the section it includes certificates or contracts heretofore issued.

I presume this Act was probably passed in consequence of a decision of Proudfoot, J., in a case of Re O'Heron, 11 Pr. R. 422, in 1886, and to remove doubts. My judgment would be against the judgment of that learned Judge without any reference to that statute. But as the last Act reads it seems to me merely to declare what by the judg ment of the Legislature is the true extent and meaning of the Wives and Childrens' Act. It says that the language thereof "includes" the certificate of insurance now before us, and that the Act "extends and applies" to such certificates and modes of insurance. There is no word of future application, but a formal present declaration that the former Act does extend to and cover a case like that before

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Judgment. us for judgment. It is an Act passed and in operation HAGARTY before this action was commenced.

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Prior to its becoming law the High Court of Justice appointed the present plaintiff as trustee, considering as we must presume, that the Wives and Childrens' Act applied. My learned brother Proudfoot a year before this order had decided in the O'Heron Case as he did in the case before us.

We are now asked to decide on the meaning and extent of the Wives and Childrens' Act, and I now respectfully adopt the view of the Legislature as declared in its last Act, that the statute in question does "include" and extend to" an insurance like the present.

To hold this statute declaratory or retrospective, does not interfere with any existing right or interest, but may rather be held to refer to matters of "procedure," which have generally been held to affect pending as well as future litigation.

The general principle on this question is elaborately discussed in the Lords, Gardner v. Lucas, 3 App. Cas. 582, especially Lord Blackburn's judgment, p. 602. See also Kimbray v. Draper, L. R. 3 Q. B. 160.

OSLER, J. A. :—

The distinction between a company which carries on the business of insurance for the purpose of gain, and an association for the purpose of mutual insurance, is well pointed out in the recent case of New York Life Insurance Co. v. Styles, 14 App. Cas. 381, and I refer to the judgment of Lord Macnaghten as containing a description of just what the members of a company incorporated under the Benevolent Societies Act may do through the medium of the company upon the principle of Mutual Life Insurance. says, (p. 411): "Certain persons agree to insure their lives among themselves on the principle of mutual insurance. They take care to admit none but healthy lives. They contribute according to rates fixed by approved tables, and

He

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they invite other persons to come in and join them by Judgment. insuring their lives on similar terms. The rates fixed by the tables are taken as being sufficient to provide for expenses, to meet liabilities, and to leave a margin for contingencies." And per Lord Herschell, (p. 409): "In the case before us, certain persons have associated themselves together for the purpose of mutual assurance; that is to say, they contribute annually to a common fund, out of which payments are to be made in the event of death to the representatives of the persons thus associated together. These persons are alone the owners of the common fund, and they and they alone, are entitled to the management of it. It is only in respect of his membership that any person is entitled to be assured a payment upon death."

Companies incorporated under the Benevolent Societies Act, are really a species of mutual benefit society, and as they may be incorporated for any benevolent or provident purpose or for any other purpose not illegal, save for that of trade or business, and certain specially excepted purposes, it seems impossible to deny, especially in the face of section 3, sub-section 2, and section 2, sub-sections 4 and 6 of the Ontario Insurance Act, and of 51 Vic. ch. 22, that such companies might even before the passage of the Ontario Insurance Act, enter into contracts of mutual life insurance for the benefit of their own members exclusively; nay, more, that this may have been the very object of the incorporation of the defendant company.

I quite agree that it would not at first have been very likely to occur to any one that a system of mutual life insurance on a large scale was capable of growing up or of being organized under the Benevolent Societies Act, yet mutual life insurance is essentially a " provident" purpose, and as such within its very terms. There is nothing in our Act except the words "benevolent or provident purpose," as there is in some of the English Benefit or Friendly Societies' Acts, to control the scope of the 1st section, nor have we, as there is in England, a line of previous legislation on the subject, to aid us in discovering the intention

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Judgment. of the Legislature; and we have no reason to suppose that our Act is founded upon or has relation to the Imperial Act. There are, perhaps, difficulties in reconciling some of the provisions of the Benevolent Societies Act with those of the Wives and Childrens' Insurance Act, but it appears to me that their existence is not a legitimate argument against the application of that Act, as they are not removed by the passage of the Act of 1888, 51 Vic. ch. 22.

We are not to assume against the rather loosely drawn pleading that the company is one incorporated for a life insurance business strictly so called. It is alleged to be incorporated under the Act, R. S. O. ch. 167, which properly means the revision of 1877, and we are, therefore, to assume that it is such a life insurance company as may legally derive its existence under that Act. If that be so, the contracts which they can enter into, are unquestionably such as are comprised within those enumerated in section 2, sub-sections 4 and 6 of the Ontario Insurance Act, and come within the very terms of the 1st section of the Act relating to insurances for the benefit of wives and children, 47 Vic. ch. 20, R. S. O. 1887, ch. 136, and the provisions of that Act relating to the appointment of a trustee are applicable.

There can be no doubt, looking at sections 12 and 13, and more particularly at section 19, of the Act, as to the right of the trustee to maintain an action in his own name for the money to which the infant is entitled under the policy or beneficiary certificate.

I think the appeal should be allowed.

MACLENNAN, J. A. :

It is clear that the statute referred to in the first paragraph of the statement of claim must be regarded as chapter 167 of the of Revised Statutes of 1877, because the proper designation of the revision of 1887, is " The Revised Statutes of Ontario, 1887."

This statute was first enacted in 1874, 37 Vic. ch. 34, and

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is substantially the same as afterwards revised in 1877. Judgment. It authorizes incorporation for any benevolent or provident MACLENNAN purpose; or for any other purpose not illegal, save and except the purpose of trade or business; and any purpose not heretofore provided for by any of the Acts mentioned in the schedule.

Among the Acts enumerated in the schedule are the Act respecting mutual insurance companies, and the Act to consolidate the laws relating to such companies, and the Act authorizing the formation of companies or co-operative associations for the purpose of carrying on in common any trade or business.

In the same year, 1874, was passed the Act 37 Vic. ch. 35, respecting the incorporation of Joint Stock Companies by letters patent, which was declared to be applicable for the incorporation of companies for any purposes or objects within the Legislative authority of the Legislature of Ontario, except railways and insurance.

When the Act 37 Vic. ch. 34 was consolidated in 1877, it still excluded from the purposes of any company to be incorporated under it "trade and business," and also the purposes provided for by any of the Acts in the schedule.

Among the Acts in the schedule are the Letters Patent Act, the Act respecting Co-operative Associations, and the Act respecting Mutual Fire Insurance Companies. The Letters Patent Act, R. S. O. ch. 150, sec. 3, excepts from its provisions the business of insurance; the Act respecting Co-operative Associations, R. S. O. ch. 158, does the same thing by section 1, and the result of an examination of all the Acts mentioned in the schedule is, that while the business of mutual fire insurance is excluded from the purposes for which incorporation may be obtained under the Act, association for the purpose of mutual life insurance is not excluded unless it comes within the general words "trade or business."

I am of opinion that an association of persons for mutual life insurance is not a "trade or business" within the meaning of the exception. I think it is clearly not a trade, and 10 VOL. XVII. A.R.