
    Merlin Jackson, Receiver, etc., Respondent, v. John S. Van Slyke, Appellant.
    (Argued February 21, 1873;
    decided April 1, 1873.)
    The tenor of a note given to a mutual insurance company is not conclusive upon the question as to whether it was given as a premium or a stock note, but that question may be determined by the facts and circumstances attendant upon its making, and is a question of fact for a jury.
    Where a note is so given before the company is organized, there is ground for an inference that it was given as a stock note. (Dana v. Munson, 33 FT. Y., 564, limited.)
    It is not within the power of an appellate court to dispose of a defence adversely to defendant, on the ground that it is inconsistent with other defences set up in the answer, where the objection has not before been entertained by the court, the proceedings of which are in review.
    
      This action was upon a note given by defendant to the Union Mutual Insurance Company. The defence, among others, the statute of limitations. The note was in form a premium note, dated August 21, 1850. The statute had' not run against the note, unless it was.a stock note. Defendant’s evidence was to the effect that the note was in fact given in April or May, 1850, and before the company had been organized ; that the note was without date when executed, and that the date inserted in it was that of the policy subsequently issued thereon; that when the note was given, the company had not the amount of stock notes required for organization, and that the note was procured for the purpose of the organization, by the agent employed for that purpose, and was delivered for that purpose to those getting up the company, and that the stock notes were all in the same form, only one form being used for stock and premium notes. The court refused to submit the question, whether the note was a stock or premium note, to the jury, holding that it must be regarded as a premium note. Held, error; that the evidence was sufcient to raise a question of fact for the jury.
    The ruling of the court below was sustained by the General Term, upon the ground, among others, that the answer set up defences wholly inconsistent with the claim that the note was a stock note. Held, that as the court below received the evidence for the purpose of sustaining the plea of the statute of limitations, it could not be disposed of on appeal upon the ground stated, as if the objection had been entertained before the trial non constat, but that a motion would have been made and granted to amend the answer.
    
      T. B. Mitchell for the appellant.
    
      Henry B. Mygatt for the respondent.
   Per Curiam

opinion for reversal and new trial.

All concur.

Judgment reversed.  