plaintiff's objections to the signing of the going somewhat fully into the details of the The judgment of the Superior Court is reversed, with costs to the appellant above GEORGIA SUPREME COURT. E. FLOYD, Plff. in Err., v. Lewis COOK et al. .... • Where a claimant gives a levying offcer a forthcoming bond, and retains possession of the property, and subsequently the same officer seizes and sells the property under a lien of superior dignity, applying the proceeds to such superior lien, the maker of the forthcoming bond is not liable thereon for a failure to produce the property at the time and place of sale. The law having taken the property from his possession, there is no breach of the conditions of the bond for which he can be held liable. (August 13, 1903.) Mrs. Smith. He sublet a portion of it to his son Lewis Cook. Lewis made a crop on his portion, and in the fall of the year Floyd, who had obtained a common-law judgment against S. E. Cook, had an execution issued upon the judgment, and levied upon the crop of Lewis. The latter filed a claim in which he set up that the crop levied upon, consisting of certain cotton and corn, belonged to him, and not to his father, and was not subject to the lien of the judg ment. The cotton and corn were in the field, and Lewis gave to the officer a forthcoming bond, wherein he obligated himself to produce the property at the time and place of sale if it was found subject to the fi. fa. Subsequently, and after Lewis had ERROR to the Superior Court for Camp-gathered the crop, Mrs. Smith, the landlord, bell County to review a judgment in defendants' favor in an action brought to enforce a forthcoming bond. Affirmed. The facts are stated in the opinion. ror: Lewis Cook could not file a claim to the property which belonged to his father, give a forthcoming bond, and take charge of part of the crop raised on the rented premises, when that crop contained a sufficient amount to pay the rent and also the claim of Floyd, and allow the entire crop to be gathered off the place, and then defeat Floyd by proving that, notwithstanding the crop was not his, that he had no right to file the claim, the property had been taken under a fi. fa., which was a superior lien to that of Floyd. Linder v. Sanders, 77 Ga. 57; King v. Castlen, 91 Ga. 488, 18 S. E. 313; Young v. Waldrip, 91 Ga. 765; Barfield v. Covington, 103 Ga. 190, 29 S. E. 759; Reese v. Worsham, 110 Ga. 449, 78 Am. St. Rep. 109, 35 S. E. 680. sued out a distress warrant against S. E. Cook, the person to whom she had rented the whole premises. This distress warrant was levied by the same officer upon all the crops raised on the rented land. The officer took the cotton and corn out of the possession of Lewis Cook, returning to the latter the forthcoming bond which he had given, the sale to the lien of Mrs. Smith. Lewis sold the crop, and applied the proceeds of Cook, supposing that this ended his claim case, did not attend the trial of that case, and the claim was dismissed for want of ed both Floyd and Mrs. Smith. By direcprosecution. The same attorney represent vertised for sale the property levied upon tion of this attorney, the levying officer adunder Floyd's common-law judgment. Lewis failed to produce the property according to the terms of the forthcoming bond, and Floyd brought his action for a breach of the bond, alleging the making of the bond by Lewis and his surety, and that they had failed to produce the property. The defendants filed a plea setting up the facts above stated, and alleging that Lewis was unable to produce the property, because it had been Simmons, Ch. J., delivered the opinion of taken from his possession by virtue of a suthe court: Messrs. L. S. Roan, K. A. Nisbet, and C. S. Reid for defendants in error. perior lien by the very officer to whom he A farm was rented by S. E. Cook from had given the forthcoming bond, and had Headnote by SIMMONS, Ch. J. NOTE. For the effect of intervening impossibilities to perform as a relief from the obligation of a contract in general, see note to Stewart v. Stone, 14 L. R. A. 215. been sold, and the proceeds applied to settle the distress warrant against his father. All the above-recited facts appearing on the trial of the case, the court, on motion, granted a nonsuit. The plaintiff excepted. There was no error in the ruling made by will see that he is in error. In that case the court. There had been no voluntary Bullock, Bush, & Co. had a common-law breach of the bond. Mrs. Smith's distress judgment against Barfield, and the execuwarrant was a lien superior to that of the tion thereon was levied upon certain cotton common-law judgment as against all the and corn made by Barfield as the tenant of crops raised upon the rented premises, Owens. Barfield replevied the property, and whether raised by S. E. Cook or by his sub-gave a forthcoming bond for its production tenants. All the crops raised upon the rent- at the time and place of sale, Owens being ed premises were equally subject to the lien the surety on the bond. The property was for rent. It was impossible, under the law, advertised for sale, and was not forthcoming for Lewis Cook to resist this lien for rent. on the day of sale. Barfield and Owens He could file no claim, nor institute any were sued upon the bond, and their defense kind of proceeding, which would relieve his was that Barfield was a tenant of Owens, part of the crop from this lien. The law and owed him rent out of the property levcompelled him to submit to the seizure of ied upon, in an amount equal to its value, his crop under this lien. The levying officer and that Owens had taken the property and sold the crop, and applied the proceeds to applied it to the payment of rent prior to the lien of Mrs. Smith. It was then impos- the day of sale, after which appropriation sible for Lewis to produce the property at Owens had sued out a distress warrant the time and place of sale, as he had agreed against Barfield, and placed it in the hands to do, for the law had seized it and disposed of the sheriff. This court held that, under of it. Further than this, the law had seized these facts, Barfield and Owens "could not it through the same officer to whom the relieve themselves of their obligation to proforthcoming bond had been given. Perform duce the property by subsequently applying ance was rendered impossible by the act of it to the payment of rent due by Barfield to the obligee in the bond. In the case of Owens. While Owens had a landlord's lien Chalker v. Thompson, 72 Ga. 478, two fi. for rent upon the crops grown upon the fas. were levied upon Thompson's property. rented premises during the year 1894, suHe gave a forthcoming bond, in the usual perior to the lien of the common-law judgterms, for the production of the property at ment of Bullock, Bush, & Co., yet, in order the time and place of sale. Before the day for him to have realized the benefit of such of sale he had the property exempted and superior lien, under the facts of this case, set apart to him as the head of a family. it was necessary for him to have sued out a The property not forthcoming on the day of distress warrant against Barfield, placed it sale, suit was brought against Thompson in the hands of the sheriff, and demanded and his sureties for a breach of the forthcom- that the proceeds of the sale of the crop be ing bond. This court held that the plaintiff applied to the satisfaction of the lien for could not recover, because there had been rent, in preference to the judgment lien. In no breach of the bond; that, the exemption such an administration of the property by having been taken before the day of sale, the court, the rights of all parties interested the officer could not make sale of the prop- therein could have been determined accorderty, and it was utterly useless for Thomp- ing to the facts of the case. The suing out son to produce the property at the place of of the distress warrant by Owens, and placsale; that the right of exemption, and the ing it in the hands of the sheriff, after the exemption itself, to Thompson, as the head property had been applied to the payment of of a family, deprived the plaintiff in fi. fa. the rent, did not affect the liability of Barof the right to subject the property. The field and Owens for the breach of the bond." law controls the rights and remedies of Thus it will be seen that, after the levy of every person, and, when it interferes and the common-law judgment, Barfield and Owprevents an obligor from complying with the ens administered the property themselves. conditions of a bond, the obligor should not This they could not do, so as to devest a be held liable because of his noncompliance. judgment lien, as was decided by this case The interference of the law is analogous to and by the cases of Stallings v. Harrold, 60 an act of God operating to prevent compli- Ga. 478, and Duncan v. Clark, 96 Ga. 263, ance. Savannah, G. & N. A. R. Co. v. Wil- 22 S. E. 927, and the cases therein cited. cox, 48 Ga. 437. Counsel for the plaintiff If Lewis Cook and his father had turned in error insisted that the case of Barfield v. over their crops to Mrs. Smith without a Covington, 103 Ga. 190, 29 S. E. 759, holds foreclosure of her lien, these cases would to the contrary, and settles the law in his have been applicable and controlling. This favor. We think that, when he reads that was not done. They waited until Mrs. case carefully and analyzes the facts, hel Smith asserted her lien by proper legal pro those just cited. cedure, when their property was levied upon | This made the case quite different from by the officer to whom they had given the forthcoming bond, and was sold under the law. When Mrs. Smith had her distress warrant levied, she asserted her lien accord Judgment affirmed. All the Justices concur, except Candler, ing to law, and the sale under the distress J., disqualified, and Turner, J., not presidwarrant was an administration by the law. ing. ILLINOIS SUPREME COURT. ROYAL CIRCLE, Appt., v. Elizabeth ACHTERRATH. (204 Ill. 549.) 1. In the absence of anything to show insanity, the presumption is that one who commited suicide was sane. 2. A mutual benefit society is estopped to take advantage of a clause in its certificate relieving it from liability for death by suicide, by a clause that, after the lapse of a certain period, the only conditions binding on the member are the agreements as to full compliance with the laws and rules of the association and full payment of the dues. 3. A member of a mutual benefit association does not cease to be in good standing by the fact that he commits suicide contrary to the laws of the order, with Statement by Magruder, J.: This is an action of assumpsit brought in he circuit court of Hancock county by the appellee, Elizabeth Achterrath, against the Royal Circle, a fraternal insurance society, to recover on a certificate issued by said society to one William Achterrath, husband of plaintiff below. The certificate sued upon was dated January 19, 1899, and provides as follows: in the meaning of a clause in the policy mak"This certificate is issued to William Aching the certificate incontestable after a certain period in case the member continues in good standing, except for nonpayment of dues and failure to comply with the rules of the association. 4. Unless made so by statute, suicide is not a crime, within the meaning of a mutual benefit certificate exempting the association from liability in case the holder dies on account of violation of the criminal laws. 5. Where, by reason of the fact that a provision against suicide is found in the constitution of a mutual benefit association, and a separate agreement with regard to it is inserted in the application, which contains a general agreement as to keeping the rules and regulations of the association, it is doubtful whether a clause making the certificate incontestable after a certain time, except for breach of the rules and regulations, was intended to cover suicide, the doubt will be resolved in favor of the beneficiary, and after the lapse of the stipulated period the association will be required to pay the amount of the certificate, notwithstanding its holder came to his death by suicide. terrath, a member of Augusta Circle No. 194, The Royal Circle, located at Augusta, Illinois, upon evidence received from said circle that said member is a contributor to the benefit fund of this order, upon condition that the statements and representations made by said member in the petition for this membership in said circle, and the statements certified to by him to the worthy medical examiner, both of which are filed in the supreme secretary's office, be made a part of this contract, and upon condition that the said member complies in the future with the laws, rules, and regulations now governing the said circle and fund, or that may hereafter be enacted by the supreme circle to govern said circle and fund. These conditions being complied with, the supreme circle of the Royal Circle hereby promises and binds itself to pay out of its benefit fund to Elizabeth Achterrath, wife, not to exceed $2,000 in accordance with and under the provisions of the laws governing said fund, upon satisfactory evidence of the death of said member, and upon the surrender of this certificate; or not to exceed $1,000, in accordance with and under the provisions of the laws governing said fund, upon satisfactory evidence of the permanent total disability of said member by accident; or not to exceed $500 in the event of the loss of a foot or a hand by accident; provided always, that said member is in good standing in this order at the time of said | agreed if he should die by suicide, whether death or disability; and provided also, that sane or insane, the defendant should not be this certificate shall not have been surren-held liable; and the further replication was dered by said member, and another certifi- filed that Achterrath did not commit suicate issued at the request of said member, cide. Issue was joined upon these replicain accordance with the laws of this order." tions. The certificate was signed by the supreme president and the supreme secretary, and the corporate seal was attached; and written upon the same were the following words, to wit: "I accept this certificate on the conditions named herein." On November 22, 1899, the sum of $500 was paid on the certificate on account of the loss of one hand by | tion, providing for the name and location of the insured, as appears from an indorsement on the certificate, leaving $1,500 due thereon. May 8, 1901, William Achterrath, the insured, came to his death by suicide, he having shot himself in the head with a revolver at his home in Augusta township. The declaration sets out the certificate in hæc verba, and avers, among other things, that William Achterrath died on May 8, 1901, and that he was at that time in good standing, and had complied with all the laws, rules, and regulations of the society; and that his widow within a reasonable time furnished appellant with satisfactory evidence of his death, and offered to deliver up the certificate upon payment to her of the amount due thereon, etc. The appellee, the plaintiff below, filed a replication, spoken of as replication No. 6, to the second and third pleas. In this replication, after referring to the organization of the society or order, and to its adoption of a constitution and by-laws, and after referring to § 1 of article 1 of the constitu the association, and to § 1 of article 4, providing that the supreme circle may grant authority to organize any number of local circles, etc., and after setting forth that in article 2 of the constitution the object of the society was stated to be, first, for social and fraternal benefits to all acceptable white persons between the ages of eighteen and fifty-nine years; second, to provide for the families of the deceased members, and to assist the disabled from old age or accident by equitable assessments upon its members; and, third, to provide death benefits to all its beneficiary members, etc.; and after referring to § 1 of article 3 of the constitution, providing that white persons of either sex who shall pass the required medical examination may become beneficial members by complying with all the laws and regula tions of the order as set forth in its bylaws and the benefit certificate, it is then averred that by § 1 of article 16 of the constitution of the order it is provided that, "after two years from the date of a certifi cate, the member continuing in good standing, the only conditions binding upon the member are the agreements as to his full compliance with the laws and rules of the association, and that all dues and assessments shall have been paid as required. In all other respects the payment of any sum due under any certificate, issued to a member, shall be indisputable and incontestable." The sixth replication then avers that William Achterrath became a member of the order under the provisions of the constitu The defendant below filed a plea of the general issue, and two special pleas. The second plea averred that it was provided in the contract of insurance that, if the insured should die by self-destruction, the certifiente should be null and void, and that William Achterrath did die by self-destruction, and therefore the certificate and contract were of no binding effect on the defendant, and that defendant was thereby released from said contract. The third plea alleged that, in and by the application for membership signed by William Achterrath, which was a part of the contract of insurance, it was provided that if he should die by suicide, whether sane or insane, the defendant should not be held liable under the contract; and avers that he did commit suicide, whether sane or insane, and therefore | tion and by-laws in force at that time, and the contract and certificate were wholly null and void. Issue was joined upon the plea of general issue. at the time the certificate was issued, and so remained during his lifetime; that he was in good standing in the order at the Two replications were filed to the second time of his death, and that, under said § plea. the first denying that it was provided 1 of article 16, the amount due plaintiff is in the contract that self-destruction of Ach-incontestable and indisputable by defendant, terrath should render the contract void, and and that defendant is estopped from refusthe second setting up that Achterrath did ing payment on account of Achterrath's not die by self-destruction. The defendant death by self-destruction. below joined issue upon these replications. To the third plea a replication was filed to the effect that Achterrath did not make application for membership, in which it was The plaintiff below filed a further replication, spoken of as replication No. 7, to the second and third pleas, averring that, after the defendant knew of Achterrath's trict the judgment of the circuit court in favor of plaintiff for $1,500 and costs has been affirmed. The present appeal is from such judgment of affirmance. death by self-destruction, it collected and ac- | peal to the appellate court for the third discepted from the plaintiff 85 cents, the full amount of one assessment levied against Achterrath, and still retains the money, and thereby waived the provision against suicide, and cannot claim exemption on account thereof. band, to which proofs of loss was attached the sworn statement of the physician, procured by her to make medical proof of the death, which statement also gave suicide as the cause of the death. It also appeared in evidence that the original verdict of the coroner's jury was that the insured "came to his death by two wounds in the head inflicted by his own hand," etc. Upon the trial, the plaintiff below not only introduced the benefit certificate alThe defendant below, appellant here, filed ready set forth, but also the application of a rejoinder to the sixth replication, averring William Achterrath for membership in the that, while it admitted its incorporation, circle, and the constitution and by-laws and that the constitution and by-laws pro- of the circle in force January 21, 1901. She vided the things set forth in the replication, also introduced in evidence the proofs of yet Achterrath did not make full compli- loss, signed by her and made under oath to ance with the laws, rules, and regulations, the supreme circle, in which she gave suiin that he committed suicide or self-destruc- cide as the cause of the death of her hustion; that he died by his own hand, wilfully and intentionally shooting himself with a pistol; and that, therefore, § 1 of article 16 is not binding on the defendant, but rendered the contract null and void, where fore Achterrath lost his good standing, and was not at his death in good standing; and that the defendant was discharged from liability under the contract. The plaintiff below demurred to this rejoinder to the sixth replication, and the demurrer was sustained. The defendant below then filed its amended rejoinder to the sixth replication, therein admitting the incorporation of the plaintiff under the laws of Illinois, and that its constitution and by-laws provided the things set forth in the replication, but alleging that William Achterrath was not in good standing at the time of his death. To this rejoinder plaintiff added the similiter. The eighth clause of the application of the deceased for membership in the order was as follows: "I further agree that this order shall not be responsible under this contract if my health shall become impaired by the use of narcotics, or alcoholic, vinous, or malt liquors, or shall die in consequence of a duel, or by suicide, whether sane or insane, or by the hands of a beneficiary hereunder (except by accident), or in consequence of the violation or attempted violation of the laws of any state or territory of the United States." The ninth clause of the application. following immediately after the eighth clause above set forth, is as follows: dues and assessments for which I may become liable, and to conform in all respects to the constitution, laws, rules, and usages of this order now in force, or which may hereafter be adopted by the supreme circle thereof." Defendant below filed a rejoinder to plaintiff's seventh replication, setting up that it was provided by § 1 of article 12 of the constitution and by-laws of defendant, which were a part of his contract, that all as-"I agree to make punctual payment of all sessments are due and payable to the local secretary of the circle to which the member belongs on the first day of each month, and that the assessment referred to in the seventh replication was due and payable on May 1, 1901, prior to the death of Achterrath; that defendant had a right to accept it; that defendant had no knowledge of the manner of Achterrath's death until after the assessment was due and payable, and, by receiving it, did not waive any part of the contract providing that self-destruction should avoid the contract. Plaintiff joined issue upon this rejoinder. The cause was tried before the court and a jury. The jury found a verdict for the plaintiff below, and assessed her damages at $1,500. Motion for new trial was sustained, and the verdict was set aside. A second trial then took place with the same result, to wit, verdict and judgment in favor of plaintiff below for $1,500 and costs. The motion for new trial after the rendition of the second verdict was overruled. Upon ap Section 5 of article 10 of the constitution of the order is as follows: "If a member dies in consequence of a duel, or by the hands of justice, or by the practice of any pernicious habit that obviously tends to shorten life, or by self-destruction, or by the use of intoxicating liquor, or by or on account of the violation of any criminal law of any state, province, or municipality, then, in all such cases, the certificate of membership. shall be null and void, but the board of directors, if in their judgment the circumstances attending such death warrant it, may, at their option, without prejudice, pay any sum not exceeding the full amount thereof." Section 1 of article 14 of the constitution provides as follows: "If a member becomes |