he gives notice of his intention to dispute such value in manner and within a time to be prescribed by a rule or order of the court."1 § 7240. Manner of Making the Assessment. In making such an assessment, it has been held that no discrimination is to be made between notes given when higher rates of insurance existed, and those made under reduced rates. Separate assessments should be made for the payment of several losses for which the note is liable, upon all the premium notes in force at the time when each successive loss happened,3-unless it appears to the receiver that it is necessary to collect all that is collectible on all the notes deposited. Where several losses have occurred at the same time, or so near together that the same notes are liable to be assessed for the payment of them all, only one assessment is necessary. § 7241. Equalizing Those Who have Paid Premiums in Cash. Where a portion of the buisness of an insurance company has been transacted on the stock plan, and a portion upon the mutual plan, and the premiums received from persons obtaining insurance on the stock plan, by paying the whole premium in cash, have been expended in the payment of losses and expenses, thus relieving former members from assessments upon their premium notes and leaving others to be assessed for the payment of subsequent losses, there is said to be no remedy for any inequality which may result from this mode of transacting the business of the company, and the receiver cannot so apply the funds in his hands as to produce an equality, although the effect may be to allow a greater burden to rest upon those whose notes happen to be in force at the time when the insolvency of the company occurred. 1 Stat. 35 & 36 Vict., ch. 41, § 5, Lind. Comp. Law (5th ed.), 733, 734. 'Shaughnessy v. Rensselaer Ins. Co., 21 Barb. (N. Y.) 605; citing Herkimer &c. Ins. Co. v. Fuller, 14 Barb. (N. Y.) 373. Shaughnessy v. Rensselaer Ins. Co., 21 Barb. (N. Y.) 605; Embree v. Ante, § 3386. ⚫ Shaughnessy v. Rensselaer Ins. Co., 21 Barb. (N. Y.) 605. • Ibid. § 7242. Particularity in Making the Assessment. Such an assessment need not be so formally particular as to specify the name of the party bound to contribute, nor the amount of the note. A general assessment by which the receiver declares that each premium note is assessed to the full amount thereof, has been held valid.' On the other hand, in a decision where the statutory steps seem to have been strained to an unreasonable strictness, it was held that an assessment made by such a receiver upon such premium notes is not complete and consummated until it is ascertained, fixed, and determined, by carrying out upon the extension book the amount which each member is to pay, and that a notice of such an assessment, if published before this is done, is premature and will not support an action by the receiver.2 3 § 7243. Requisites of Notice of the Assessment. It has been held that the notice, in order to support a right of action on the assessment, must state the amount which each member is to pay. It is no objection to such an assessment, or to the notice of it, that the persons called upon to contribute are apprised of the amount of their liability only by a statement of the rate per cent at which the premium notes in force at specified dates are respectively assessed. It is enough that the makers of the notes, who are bound to know their amounts, date, etc., are furnished with the data for making the proper computation. It is not necessary to inform each one how much he has to pay." § 7244. Notes Payable Absolutely where No Assessment is Necessary. Under many special charters in the State of New York, and subsequently under a general law enacted 1 Sands v. Sanders, 28 N. Y. 416. • Bangs v. McIntosh, 23 Barb. (N. Y.) 591. Ibid. Bangs v. Duckinfield, 18 N. Y. 592. Ibid. But where such notice specified different rates of assessment for "small notes" and "large notes," without showing in any manner how a given note was distinguishable as belonging to the one or the other class, and there was no evidence of any rule on the subject contained in the charter or by-laws, the notice was held void for uncertainty. Ibid. after the prohibition against the granting of special charters contained in the constitution of 1849, a class of notes was authorized to be given to insurance companies by their policyholders, which were declared, by the statute, to stand in lieu of the capital of the company, which notes were the absolute property of the company, transferable for the purposes of its business or the settlement of its losses, the same as any other absolute evidences of indebtedness are transferable, and suable without any preliminary assessment made thereon, either by the directors while the company was a going concern, or by its receiver thereafter. A history of the special charters creating mutual insurance companies, under which assessable premium notes were given, and of those under which notes thus payable absolutely were given by the members in lieu of capital, "as a security for dealers," — is given by Denio, C. J., in a case decided by the Court of Appeals of that State in 1857. The theory of the court in regard to this class of notes is that they stand in the place of capital subscribed and paid in by the members of the company, and not as a mere guaranty fund subject to assessment; that they are payable absolutely to the extent of their full face value, when demanded by the company or its representative; that the company may transfer them or deal with them as an owner may deal with his absolute property, subject, of course, to any limitation of its powers imposed upon it by its charter or its governing statute; that their quality is to be determined by the statute in pursuance of which they have been given; that they are thus given to the corporation in absolute ownership, in consideration of the benefits accruing to the members from their shares in the profits of the business of the company; and that they are payable absolutely, and not merely when an assessment is made upon valid conditions precedent, although they may, on their face, embody a promise to pay in such portions and at such times as the directors may require. White v. Haight, 16 N. Y. 310. In White v. Haight, 16 N. Y. 310, 324, the following cases are referred to by Denio, C. J., as settling the question that notes of this character "are payable absolutely, and may be collected without any allegation of loss, and without an assess § 7245. Arrangements among the Members Limiting their Liability. We have already seen, that when it becomes necessary to charge the stockholders of a corporation in favor of its creditors, no arrangements made among themselves or between the particular stockholder and the directors, officers, or other agents of the corporation, discharging or reducing the liability of the stockholder, will avail, as against the rights of the creditors. Upon the same principle, it has been justly held that the liability of persons insured in a mutual insurance company to pay their proportion of such assessments as shall be necessary to meet all of the company's losses and liabilities, cannot be avoided by any arrangement entered into with the company, whereby the insured seeks to limit such liability, nor lessened by any provisions in the articles of association. But where the company has not taken any insurance on the stock plan, and the question concerns only the liability of the members inter sese, that is to say, the liabil ment":-Furniss. Gilchrist, 1 Sandf. (N. Y.) 53; Brouwer v. Hill, 1 Sandf. (N. Y.) 629, note; Brouwer v. Appleby, 1 Sandf. (N. Y.) 158; Hone v. Allen, 1 Sandf. (N. Y.) 171, note; Hone v. Folger, 1 Sandf. (N. Y.) 177; Caryl v. McElrath, 3 Sandf. (N. Y.) 176; Deraismes v. Merchants' Mut. Ins. Co., 1 N. Y. 371; Howland v. Myer, 3 N. Y. 290; Brown v. Crooke, 4 N. Y. 51: Emmet v. Reed, 8 N. Y. 312. These cases do not decide, in terms, that an assessment upon notes thus given as security for dealers" with the company, is not necessary in order to enable the receiver to sue on them; but they were all actions by receivers upon such notes themselves, without a previous assessment, so far as the writer can see from an examination of them; and the doctrine embodied in them, that such notes are absolute assets of the company, and, as such, transferable in the course of its business at its pleas ure, is inconsistent with the conclu- Russell v. Berry, 51 Mich. 287. ity of all to be assessed to pay losses which have been sustained by some, it does not appear why a general arrangement or understanding among the members, limiting their liability to assessment for losses to a less sum than the amount allowed under the governing statute, should not be upheld and applied by the courts, if clearly proved; and such was the holding of the same court in a subsequent case. A member of an insolvent mutual insurance company filed a bill in equity to restrain an assessment by a receiver, averring it to be the general understanding of the members, as well as of himself, that no one was to be assessed beyond the amount which he had agreed to pay by his premium note. A demurrer admitted this allegation. It was held that, as general agreements to that effect would not be illegal, and as individual members could waive provisions made by the statute for their protection, it would be inequitable for any member of the company to insist on its enforcement, after all had become insured with the understanding that their liability was limited to their premium notes.1 § 7246. Actions to Enforce Assessments upon Premium Notes. In an action to enforce such an assessment, the statutory conditions precedent to the making of the assessment must be averred and proved, at least where the assessment is made by the receiver, and not by the court superintending the administration.' This qualification is added, because if the assessment is made by the court, after an account taken and stated of the resources and liabilities of the company, the order of assessment may be regarded as in the nature of an adjudication that the amount ordered to be assessed is required to meet the necessities of the liquidation.' But where the assessment is made by the receiver, by virtue of his statutory authority, and not by the court superintending the administration, it is a mere ministerial act, |