112 Mass. 192 | Mass. | 1873
The St. of 1863, o. 249, § 3, requires that an assessment, when brought before the court for examination, “ shall be referred to an auditor,” who shall “ report upon the correctness of said assessment or call, and all matters connected therewith.” His report is apparently intended to furnish to the court the means and information by which to pass upon the questions submitted for determination. Although called an “ auditor,” his report is not merely primd facie evidence, as in ordinary cases at law; but rather like that of a master in chancery.
All parties had full opportunity to be heard before the auditor. No proper evidence, bearing upon the questions before him, was rejected; and the report shows that there was careful investigation of whatever was then deemed by the parties interested to be material.
The margin allowed, for expenses and failures to collect, is large; but there was evidence to justify it, and we cannot say. that the auditor, who had better opportunity to judge than we can have, is in error.
The statute liability of the members, as corporators, cannot be availed of to raise money to repay unearned premiums. An assessment for that purpose is void. The reasons for this conclusion have recently been given in the cases of the Massachusetts Mut. Fire Ins. Co. and Union Mut. Fire Ins. Co. ante, p. 116; and it is unnecessary to repeat or add to them. The contract set forth in the policy is substantially the same as in the cases there under consideration. It provides for cancellation, and defines the rights of members thereupon, in terms which exclude any such claim.
Cancellation of the policy does not release the policy holder from his liability, as a member of the company, to be assessed for losses which occurred while he was a member, if made within two years. Gen. Sts. e. 58, § 54.
The assessment is required to be made “ in proportion to their premium and deposit; ” and therefore cannot be graduated by the age of the policy.