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signifle "A SUIVRE", le symbols ▼ signifle "FIN". L.M cartaa, planches, tableaux, etc., peuvent fttre filmte A dee taux da reduction diffArants. Lorsque le document est trop grand pour Atre reproduit en un seul cllchA, II est film* A partir de I'angle sup4lrieur gaucha, de gauche i drolte, et de haut en bas, an pranant le nombre d'Imagea nteaasalra. Les diagrammas sulvants lllustrant la m^thoda. 1 2 3 1 2 3 4 5 6 TH] 51 ■ THE LAWS OF INSURANCE. < PI » 09 H K m > ■< s^ * A^ FI CASES IN OF THE INI HOLDER THOMAS STi cl^ THE AWS OF IMFRAJNTCE: FIRE, LIFE, ACCIDENT, AND GUARANTEE. BMBODYINO jCASES IN THE ENGLISH, SCOTCH, IKISH, AMEBICAN. I AND CANADIAN COURTS. ^^ BY JAMES BIGGS PORTER ASSISTED BT WILLIAM riELDEN CRAIES, M.A, AMD THOMAS SHEPHB^B Lm-LB, M^. (T„.. c„,^ c.m.) WHEWELL SCHOLAR IN INTERNATIONAt LAW OF THE INNER TEMPLE. BARRISTERS-AT-LAW o n n S2 H K i i XCblr^ B&mon LONDON; STEVENS AND HAYNES, BELL YABD, TEMPLE BAR. 1898. KF i ' I& if In SIR 1 ONE L. [IV Printed by Ballantvne, Hanson <5f Co. At the BalUmtyne Press TO THE HONOUBABLB SIR WILLIAM GRANTHAM. Knioht. THIS BDITIOB OF i «Al.Cil OK TBS LA WS OF INSUSANCB W, WITH PEEMI88ION, HT THE AUTHOR. PRE] It is 01 tion to to the J 2CX) nev a comp] alteratioj as changi Innbb Tb: Febi I PREFACE TO THE THIRD EDITION. ■»« !■ It .3 only necessary, I think, to say, in addi- tion to what has been stated in the Preface to the Firet and Second Editions, that about 200 new cases have been referred to, making a complete list of over ,750 cases. Such alterations have aJso been made in the text as changes in the law have rendered requisite. J. B. P. INNBB Temple, February 1898, m PREI In my tioned i Law of of . Life importaj rogation €lucidat€ me that in one ' (exceptin <^nd Guc convenier This £ entirely r taken up withstand time that published, I yi PEEFACE TO THE SECOND EDITION. Ii In my Preface to the Fi«t Edition, I men- t.oned that, none of the Engh'sh write™ on the Law of Insurance having treated in one volume of Life, Rre, and Accident Insurance, and .mportant principles of the Law-such as Sub- rogafon and Indemnity-having been „uch elucdated by recent decisions, it seemed to me that a book of moderate si.e, containing m one volume the whole Law of Insurance {exeeptu^g Marine)-viz., Ufe, Fire, Acoiden,, <^nd Guarantee Ir^urance-r^igU be for the convenience of the profession. This anticipation was not. it is hoped, My „>istaken, for the First Edition was taken up sooner than was expected. Not- Jtoding, however, the comparatively short ""J. '^' ^ ^'^P^ «i»ce the book was published, numerous fresh cases have occurred l^m S > M f i ! m X PKEFACE. in this country, Scotland, Ireland, the Colonies, and America; and those which I considered the most useful of them, numbering over i6o,, have been referred to in this Edition, bringing up the list of cases to upwards of 1560. As the American and Colonial Reports are numerous and their abbreviations are not always familiar to the English reader, a list of such abbreviations has been given ; and the statutes alluded to will be found in the Index. J. B. P. INNEB TBMFLB, Jidy 1887. CHAI'. I. NATt th: COK n. INSUH III. THE p IV. THE B V. GENEB VI. WARB4 VII. MISEEI VIII. CONDIX IX. ARBITR X. INDSKK ■XI. CONDIT] XII. EEINSTi XIII. RE-INSU] XTV. OBLiGAT XV. MORTGAC XVI. FIRE POL CONTENTS CHAP. I. NATUBE OF THK CONTBACT OF INSUEANCE THE CONTBACT OF INSUBANCB CONSTEUCTION OF POLIO V n. INSUBABLB INTBBEST HI, THE PREMIUM • • • , IV. THE RISK V. GENERAL INQUIRIES MADE BV INSITRERS . VI. WARRANTY VII. MISREPRESENTATION AND CONCEALMENT . VIII. CONDITIONS IN POLICIES IX. ARBITRATION X. INDEMNITY XI. CONDITIONS AS TO AVERAGE XII. BEINSTATEMENT XIII. EE-INSURANCE ■ • • . XIV. OBLIGATION OF TENANTS To INSURE XV. MORTGAGE XVI. FIRE POLICIES AND ARSTGNMENT PAGES I — 20 21-29 • 39-37 38—79 80 — 106 • 107—146 • 147—153 • 154—162 • 163—178 • 179—228 • 229—238 ■ 239—265 • 266 — 271 • 272—279 . 280—288 • 289—302 303-318 319—327 90 m H K > i ! SO SO -< J r.t. H ^ 1 ^ 1 P J Xll CONTENTS. . DISPOSITIONS OF LIFE POLICIES LIEN CONFLICTING CLAIMS COMPANIES .... EIGHTS OP POLICY-HOLDERS . NOVATION AND AMALGAMATION FOREIGN COMPANY . AGENTS ACCIDENT . GUARANTEE INSURANCE BANKRUPTCY THELLI'SSON AND SUCCESSION DUTY ACTS CHAP. XVII XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. XXVI. XXVII. XXVIII. INDEX I'AGES 328-37Z 373—380 381—382 383—409 410—425 426—437 438-445 446— 47a 47 1 -495 496—503; 504-508 509— SI I 513—562 Abbott v. I Abraham v. Abrahams ? Co., 187 Accidental I 424 Accident Ins Disease, Corporat Acey V. Ferni Adams Policj Adreveno v. II Agar V. Athen Agriculturist ( Aitchisou V. L Albert Life As Albert v. Banli Albert v. Medii Albion Life Co Albion Co. v. 464 Aldebert v. Lea Alexander v. Ct Allan V. Markla Allen's Case, 43 Allej'ne v. Dare Alleyne v. Queb, Allkins V. Jupe, American Baske Irisurance American Emplo Ames V. Richardi Amicable Co. v. ] Amiss V. Witt, 32 Anchor Insurance Badenoch, 43 Anderson v. ComB 278 LIST OP CASES. Abbott v. Howard, 152 Abraham v. North German, 447 Abrahams v. Agricultural Mutual Co., 187, 271 Accidental Death Co., i?e, 415, 420 424 ' Accident Insurance Co. v. Accident, Disease, and Generallnsurance i^orporatioD, 390 Acey V. Fernie, 86, 103 Adama Policy, 356 Adreveno?;. Mutual, 211 Agar?'. Athenaeum Co., ^oc ,q6 ..< Agriculturist Cattle Co.f'i;'4f;^' A belt Life Assurance Co., Re, coc Albert ..Bank of London, 420^^ Albert v. Medical, 429 Albion Life Co., He, 412 Albion a. ... Mills, 23, 444. 462. AIdebertnLeaf;4,i,4,4 20 Alexander v. Campbell, 235 Allan V. Markland, 57, 296 Allen's Case, 436 Alleyne v. Dare - 3S2 Alleyne v. Queuo Co., 278 Allkins V. Jupe, 93, 248 American Basket Co. v. Farmville ir,surance Co., 6 American Employers v. Barr a% Ames V. Richardson, 315 Amicable Co. v.BoIiand, ,39, 143 Amiss V. Witt, 329 ^^ Anchor Insurance Co., i?e,^;,^„^,, iJadenoch, 434 Anderson v. Commercial Union, 222, I Anderson v. Edie, 75, 76 Andean,;. Fitzgerald, 97. 156, ,57, Andersons. Morice, SI, 60, 71 Anderson t;. Pacific Co., 158 Anderson,;. Thornton, 82, 83, 86 Andree v. Fletcher, 93 Andrew r. Ellison, 418 Andrew's Case, 437 Andrews' and Alexander's Case, J?e London Marine Insurance C0..420 Andrews, E. part., 72. 364, 365, Andrews v. Bousfield, 336 Andrews v. Patriotic, 258 Anglo-Australian Co. v. British Pro- vident Co., 429 Anglo-Australian Co., E^ parte Smith, 429 Appleby V. Myers, 68 Appleton V. Phrenix, 82 Archambault v. Lamere, 255 Armitage v. Winterbottora, 57 62 63. 72 ^^' ' Armstrong and Byrne, /^. .,4 Armstrong t. Mutual Life, 4,141 Armst^rong.. Turquand, 84, JJ^^ Arthur Average Association, Re else ^°"'^ """^ Hawksley'i Arthur Average, &c., No. 2, ig, Arthur r. Wvnne, 345 "^ Ashby r. Costin, 347 Ashford . Victoria Mutual Co 459 A8hley,,A,ble.y,43,328,,^2 Ashwonh .. Munns, 39,, 403, 404 SB n W i ,■ ' ! ill XIV LIST OF CASES. Atlienseum Co., Be, Ex parte Prince of Wales Co., 282, 414, 418, 419 Athenseum Co. Be, Ex parte Eagle Co., 392, 415, 416 Athenteum Co. v. Pooley, 97, 395, 396, 398,420,450 Atkins V. Arcedeckne, 367 Att.-Gen. v. Abdy, 345 Att.-Gen. v. Continental Life, 100 Att.-Gen. v. Rowsell, 345 Attwell V. Western Co., 190 Aultman v, McConnell, 338 Austin V. Drewe, 121, 122, 124, 125 Australian Agricultural Co. v. Saunders, 188 Aylwin v. Witty, Babbage v. Coulbnrn, 231 Babcock v. Montgomery Fire Co., 121, 124, 129 Badenocb, Ex parte, Be Anchor Assurance Co., Bailey v, St. Joseph Fire Co., 193 Bailey v. American Insurance Co., 304 Bailey v. Gould, 72 Baker v, Holzapfel, 301 Baker v. Langhorn, 448 Baker v. L. S. W. R., 454 Baker v, Yorkshire, &c., 236 Baldwin v. Billingsby, 336 Baldwin v. New York Life, 226 Ballestracci v. Fireman's Insurance Co., 10 Balfour v, Ernest, 391 Ball V. Stone, 25 Ballantine v. Employers, &c., 494 Bank of Ireland, Ex parte, 75 Bank of N. S. W. See New South Wales Bank Bank of Toronto v. European Assur- ance, 496 Banting v. Niagara District Fire Co., 214 Barclay v. Cousins, 45 Bargate v. Shortridge, 395 Baring Bros. & Co. v. Marine Ins. Co., 31 Barker v. Janson, 3 Barker v. Walters, 95 Barnard v. Faber, 155 Barnes v. Hartford Co., 265 Barnes v. London, &c. , 47 Barr's Trusts, 332 Barrett v. Jermy, 186 Barron v. Fitzgerald, 79 Barry, Ex parte, 504 Barsalon v. Royal iHsurance Co., 174 Bartlett's Case, 435 Barton v. Gainer, 330, 349 Basch V. Humboldt Mutual, 82 Bashford v. Cann, 362, 363, 368 Bassil V. Lister, 509 Bateman, Ex parte, 302 Bateman v. Service, 438, 444 Bates V. Hewitt, 107, 117, 176, 178 Bath's Case, 412 Bawden v. London, Edinburgh, &c., 491 Baxendale v. Harding, 117, 118 Baxter v. Hartford Co., 65, 194 Bayton Insurance Co. v. Kelly, Beacon Fire Co. v. Gibb, 124, 183, 226 Beals V. Home Insurance Co., 278 Bean v. Stupart, 155, 162 Beck's Case, 433 Beebee 1: Hartford Fire Co., 126 Beer v. London and Paris Hotel Co., 304 Belfour v. Weston, 301 Bell's Case, 420 Bell V. Lycoming Fire, 205 Bellamy v. Brickenden, 305, 312 Benham r. United Guarantee Co., 158, 164, 500 Bennett v. Agricultural Co., 187 Benson v. Ottawa Co., 180 Beresford v. Beresford, 351 Bermon v. Woodbridge, 89, 91 Berndton v. Strang, 379 Berridge v. Man on Ins. Co., 54 Berry v. Knights Templars, 440 Betts, Be, 368 Bigelow V. Berkshire Co., 143 Bignold V. Audland, 381, 382 Bilbie v. Lumley, 17^ Bill V. Daren th Co., 395 Billington v. Provincial Co., 190 UST OF CASES. Bishop V. Ci&y Ins. Co., 21 Bishop v. Scott, 411 Bishop ofChatham,t,. Western, &c Co., 21 Biaset V. Rojal i5«hange Co., 222 239,375 Blackett i;. Roj^al Exchange, 34, « Blackburn.Low&Co...vUrs!z63 167 "'• Blackburn v. Haaland, 163 Bleakley v. Niagara District Co 459 Blue EibboD, &c., 405 Blundell's Case, 426 Boardmau v. Merrimack Co.. « Board of Trade z,. Block, 368 Bodinei;. Home Insurance Co., 81 Boehm v. Bell, 54 ' " Boehm v. Coombe, 108, 12? Boldero v. fl. E, I. C., 384 BoUand v. Desney, 139 Boltoc V. Ferro, 507 Bondrett v. Hentig, 133 Borrodaile .. Hunter. 139, ,40, 142, 344 Boswell V. Coaks, 369 Bourne's Case. 424 Bowes V.Hope Life Co.. 416 Bowes V. National, 206, 207 Bowes V. Shand, 34 Bowring's Case, 426 Boyd V. Dubois, 113 Boytonsi;. Employers' Liability Cor 476 ^ ^- Bradbu™..G.W.E.,,9,,,,^^7^ ^™f^ ^•?"t»'*« Benefit Life, 139 Co!278"'''''''"*"'^ Insu'rance Branford v. Saunders, 54, 75 -g Braunstein t;. Accidental Death Co 392, 493 *' Breasted .. Farmers' Co., 140, ,43 Brice V. Bannister, 329 "^ Bridger's and x^eil's Cases, 401 , Bridges v. Garrett, 453 I J"<^ges ^'- Longman, 299 I Brmley v. National Co., 278 I ™ ^^•"«"can Insurance Co ^, ' Joseph, n6 XV British Equitable t;. ». w. R „ R -rli'^^' 3^^' 339. 340, 347 ' BritashEquitablet^.Musgrave x/i 171 Bntish and Foreign afarine Co. I Gulf Railway Co., 249 British 'Mutual. &c., Co., r,.Charn- wood Forest Railway, 396 British Provident, i?., 430^^ Bnton Medical. He, 425 Britton V. Royal, 120. 129, 216, 217, 218, 220 Bromley v. Smith, 343 Brook z,. Stone, 30s, 312, 371 Brown's Case, Reilly, 401. 423 Brown, Ex parte, 341 Brown's Claim, 98 Brown v. Brown, 377 Brown v. Freeman, 263, 364 Brown t;. London Assurance, 204, 205 . ^ Brown v. Price, 371 Brown v. Quilter, 309 Brown z;. Royal Insurance Co., 222 277, 279 Bruce t;. Garden, 361,363, 364 Bruce t;. Gore District Co., 191 Bruce v. Jones, 244 Buchanan v. Exchange Co., 182 Buchanan t,. Liverpool, &c., 241 Bufet,. Turner, 1x4. 126, 1^3 ' Buffum t; Lafayette Mutual Co., 105 Buist V. Scottish Equitable, 33, 74 ^ Bukeley.Behultz.439.4;r ' Bullock z;. Domitt, 293, 29? Bullock, ^ar;,arW Insurance Co. .. pj^,,^ loo, 189 Claflin V. Commonwealth, 219 Claperfide. Commercial Union, 68 < lack V. Holland, 351 Clark t,. Birthing. 194,247 Clark V. Scottish Imperial, ci „ Clarkt;. Western Co, 67 "'^^ Clark's Exor.'s Case, 399 Clarke v. Dixon, 36 Clay V, Harrison, 60, 77 Cleaver .,. Mutual Keserve Fund Assoc. Co., 141, 144, 349 Cleaver .. Traders, &c.!l„ <^legg s Case, 435 Clement v. British American 52, 213 Clidero .. Scottish, &c., 485 Clift V. Schwabe, 142 Clought..L.N. W. R.,244 Cobb N.E.M.Marine,'23c Cobbe's Policy, 381 "^^ Cocker's Case, 433 Coggs V. Bernard, 61 Cnghlan's Case, 416, 426 '-ole r. Accident, 488 Collett V.Morrison, 2? 2e <»t «. Collins V.Locke, 231, 232 Colraore v. North, 503 ' Colonial, &c Pn , a j , . MAr;„» n "^^ Adelaide Colonjal Mutual Co., i?,, 406 toquhounv.Heddon,422 ColumWan Fire Co. ..Lawrence. 69, Commercial Union .. Canada Min- ^Dg Oo., 195 Connecticut Co. .. Burroughs. ,,,, [Connecticut Co. V. Moore, ,49 „o I ISI. 152, 469 ^^' ^°' Connecticut Mutual ..Lucks. 52 7, , xv.'i Connecticut Mutual t-.Akens, ,49 Connecticut Mutual .. Union 'W, Connecticut Mutual v. McWhirter ^43i 168 ' Conquest's Case, 434 Conway v. Gray, 58 Conway .. Britannia, 330, ,78 Cook V. Black, 145 -^"^ ' ^^^ Cook V. Field, 52 Cooke V. Cooke, 232 Cooper V. Massachusetts Co., 143 Cooper .^ Pacific Mutual Co. ,S Cope V. Rowlands, 93 ' °' Copp V. Lynch. 468 Cornell .. Liverpool, London, &c '-^0., 200 ' Cornett.,Ph^„j^Co..205 Corn.sh .. Accident, 489 Cotton States Life On „ t ^ County Life, i?., 392 • ^«'*"' 99 Courtenayt, Ferrers, 343, ,„ Cour enay.. Wright, J^ 3%^ ^ox V. Hickman, 411 ^ Cray t;. Hartford Fire Co.. 200 Croft V. Lindsay, 72 Crofts V. JVIarshall 2;7 Crockattv. Ford,26,382 Cromwell .. Roy,, Canadian Insur- ance Co., 439 ^^^'^ Crosland v. AVrigley ,, Crossley..CityofUl,4o^Co ,„ Crotfyv. Union,&c 7/ ^''•' 337 Cro«^ey .. Agricultural Mutual Co Crowley .. Cohen, 42, 50. 61 xo8 "o, 270, 280, 327 '' '°^' Crozierv. Phoenix Co., 51 ,,6 Crmckshank ., Northern &e,,„ Culbertson .. Cox, 326 ' ^^9 Cullen ... Thomson's Trustees 462 Cunard .. Hyde, 37, 43 '' '^^^ 192 Digby V. Atkinson, 293, 294 Dill V. Quebec Aggnrance Co., 206, 207 Dillard v. Manhattan Life Co., 227 Dixon V. Stansfield, 378 Dobson V. Land, 305, 312 Dobson V, Sotheby, 113, 125, 174, 185. 293 Doe V. Gladwin, 295, 299 Doe V. Kowe, 299 Doe V. Shewin, 297 Doe d. Pittr. Laming, 119, 185 Donaldson v. Manchester Co., 64 Dorien v. Positive, 99 Dormay v. Borrodaile, 146, 338, 344, 370 Doming's Case, 431, 435 Douglas V. Murphy, 295, 297 Dowker r. Canada Life Co., 94, 97 Downes v. Green, 46 Dowse's Case, 433, 437 Doyle V. City of Glasgow Co., 492 Drinkwater v. London Assurance, 130, 194 Drysdale v. Pigott, 361, 364, 365, 369 Duckett V. Williams, 96, 97, 159, 163, 17s Dudgeon v. Pembroke, 26, 48, 113 Dufaur v. Professional Life Co., 140, 142, 347 DuiFv. Fleming, 57, 296 Duft'ell V. Wilson, 96 Dafourcet v. Bishop, 250, 352 Dunnage v. White, 180 Dupre's Exors.' Case, 435 Durham's Case, 419, 420 Durrant v. Friend, 326 Duval V. Northern Co., 451 Dwight V. Germania Co., 161 Dwyer v. Edie, 49, 75, 77 Eastern Counties Railw. v. Hawkes,] 397 Eastwood V. Kenyon, 496 Easum's Case, 400 Ebsworth v. Alliance Marine Co., 54,j 57. 58. 304 Ecclesiastical Commissioners?'. Koyal I Exchange, 70 Edge V. Duke, 84 Fairbrothek v. Fairchild v. Liv ^37, 264, 26 Fairlie v. Christi Falcke v. ScottisI 373, 380 Family Eiido\vm( Fanuing v. Lond SOI LIST OF CASES. Kdraed, lie, 352 Edwards v. Abemyon Mutual, 23, Ldwards v. Barrow, 153 Edwards «». Insurance Co., 204 .Bdwards v. Martin, 451 Edwards v. Travellers' Ins. Co., 20? Edwards v. Warden. 384 Edwards v. West, 275 Eggenberger t,. Guarantee, &c., 485 Elkhart Mutual Aid ..Houghto'„,'4; E hott V Royal Exchange Co., aif EIIjs t-. Insurance Co., 196, loo ,2, Elli«..Kreutzinger,378 ^^'^^ Ely V. Positive Co., 396 Emmett, lie, 365 England t;Ld. Tredegar, 26, 382 Engl. sht. Franklin Fire Co., U4 ,„ English and Irish Church, &c.. Co 4", 415, 421 Equitable Co. v. Perrault, 441. 44c Equitable Co. .. Q.,i„„, ,'//'■ '''^^ Equitable, &c., ,;. Pettus, xr. Era Co., lie, 428, 463 Ernest^.. Niol.olls. 39,, 39,, 3^3^ Etna f. France, 151 Etna Life v. Green, 453 Etna V. People's Insurance, 208 Etna V. Tyler, 69 Etty v. Bridges, 332 European Co., lie, 436 Evans v. Bignold, 24, 78 Evansv. Coventry. 416, 420 Evans v. Hooper, 389 Even's Claim, 436 Everett v. Desborough, 151, X52, 168, 172. 227 ^ ' Everett ,,. London Assurance. 122 124 ' Eyre v. Glover, 45 XIX Fairbrothek v. Woodhouse, 380 Fairchild V. Liverpool and London. »37, 264, 268 Fairlie v, Christie, 25 Falcke .;. Scottish Imperial, 109, 361 373i 380 ' Family Endo^vment Co., Be 427 Fanning t;. London Guarantee Co 501 Fawcett t,. London, Liverpool, and Ulobe, 214 Feise v. Parkinson, 96 Fenn v. Craig, 175 Ferguson v. Massachusetts, &o., Co.. 36,75 Fernie v. Maguire, 382 Ferris V. Mullins, 378 Fidtlily, &c., V. Alpert, 163 iMlhtert;. Phi;.pard,292,293 * inlay V. Mexican, &c., 503 Fire Association v, Canada Co., 28? fBisher.. Crescent, &c., 56, 154, X60, 205,212 ' Fisher v. Liverpool, &c., Co., 22 Fisher v. Smith, 378 Fisk V. Masterman. 89. 90 Fitton V. Accidental Death Co.. « 486, 487 ' ^ ' Fitzherbert v. Mather, 167, 468 Fitz William v. Price, 371 Fleming.^ CVse, 4.0. 43,. 432, 436 iletcherr. Commonwealth Co 12? Flint V. Fleming, 45 ' Flint V. Ohio Co., 81 Forbes & Co., Ex parte, 459 Forbes v. Border Counties Co., 293 Forbes v. Edinburgh Life, 152, 469 Forgie V. Royal Insurance Co., 196 198 Fort^scue ^^Barnett, 335. 350, 357 i'Oiward V. Pittard, 61 Forwood V. N. W^les Mutual, 134 Foster v. Mentor Life, 288 Foster v. Koberts, 343, 507 Fowkes V. Manchester Co., 151, 163, Fowler v. Scottish Equitable, 25, 36 99.114.394 ' Fox V. Railway Passengers, &c., Co . 23s. 238 Foy V. Etna Co., 187 Fragano r. Long, 58 Franklin v. S. E. R., 472 Frazer v. Gore District Co., 103 Freme v. Braide, 363, 365 French v. Backhouse, 447 French v. Patton, 25 French v. Royal Exchange, 382 Frere's Casa, 420, 431, 432 to > ^^ ■'•- •* m XX LIST OF CASES. iiiii London ARsurance, lilllii I Frfadlander v. "3. »76 Frost V. Liverpool, &c., Co., 460 Fry V. Fry, 72 Fryer V. Moreland, 17, 18, 510, 511 Fuller V. Detroit, &c., 208 Fuller V. Metropolitan Life, 32 Furling v. Carroll, 293 Furtado v. Bodgern, 96 Galb r.^Lewis, 192, 334, 447, 451, 457 Gamble v. Accident Insuranco C,)., 491 Garcelon v. Hampden Insurance, 1 59 Garden v. Ingram, 199, 300, 309 Gardner v, Cazenove, 73 Gamer v. Moore, 76, 371 Gaskin v. Phoenix Co. , 304 Gatayes v. Flather, 342 Gauche v. London and Lancashire Co., 211 Geach v. Ingall, 151, 168 Geiseck v. Crescent Mutual Co. 130 General Land Credit Co., lie, 444 German, &c., Co. v. Frederick, 203 German Life Co.'s Case, 436 Gibson, JEx parte, lie Smith, Knight, & Co., 434 Gibson v. Oveibury, 378 Gibson v. Small, 26, 125, 155, 159 Giffard v. Queen Insurance Co., 58, 106, 462, 464 Gilchrist v Gore Dibtrict Co., 191 Gillespie v. Miller, 325 Gilley v. Barley, 352 Girdlestone v. North Brititth and Mercantile, 161 Glen V. Lewis, 187 Glover v. Black, 303 Godfrey v. Wilson, 358 Godin V. London Assurance, 90 Godsal V. Boldero, 17, 75 Goit V. National Protection Co., 83 Gooderham v. Marlett, 58, 467, 468 Goodman v. Harvey, 12 Goodwin v. Lancashire Fire Co., 126, 204, 212, 228 Gordon v. Eemmirgton, 129 Gordon v. Sea, Fire, and Life Co., 392 Gore District Co. v. Samo, 177, 181 (Soreley, Ex parte, 222, 274, 305, 306, 310 Gorman v. Hand-in-Hand, T14, 116, I2S, 127, 137 Gobs v. Withers, 239 Gottlieb V. Crancb, 362, 363, 364^ 366, 368 Gould V. British America Co., 2i8> 220 Gonlston v, Eoyal, 45, 56, 201 Gove V. Farmers' Co., 12, 128 Grace v. American Ins, Co., iii Grain's Case, 384 Grandin v. Rochester Co., 67, 182 Grand Trunk, &c. v. Jennings, 20 Grant v. Easton, 444, 445 Grant v. Etna, 114, 117, 158 Grant v. Par iinson, f>8 Grant v. Reliance Insurance Co., 28 Grantley v. Garthwaite, 368 Gray r. Sims, 93 Great Britain Mutual Cos., He, 412 Greaves v. Niagara District Co., 214 Green v. Ingham, 378 Greet v. Citizens' Co., 127, 191 Gregg V. Coates, 294 Grenier v. Monarch Co., 217 Gresham Life v. Styles, 422 Grey v. Ellison, 371 Grieve v. Northern Co., 200 Griffey v. New York Central, 204, 332 Griffith's Case, 431, 436 Grogan v. London and Manchester Industrial Co., 153, 172 Gurnell v. Gardner, 332 Guardians Mansfield Union v. Wright, 500 Haqedorn v. OHverson, 58, 465 Halford v. Close, 508 Halford v. Kymer, 38, 43 Halhead v. Young, 116 Hall V. Railroad Co. , 250 Hall V. Wright, 277 Hallett V, Dowdall, 420 Hambro v. Hull and London Fire Co., 416 ^33, 217, a Harris v. Venal Harrison v. Don Harrison v. Elli Harrison v, Ger) 458 Harrison v. Hart Hartford Fire, & Hartford Life, &, Hartigan v. Intc J 225 Hartmann v. Ki 152 Harvey v. Beckw Hastie v. de Peve Hastings Mutual non, 447 Hatch V. Mutual : Hathaway v, Stt 196 Hatton V. Beacon Hatton V. Provinci Havens v. Middiet Hawkins v. Coultl I Hawkins v. Woodg Haworth v. Sicknei I Hawthorne's Case, iHawtrey'sCase, 43 I Haycock's Policy, 3 jHebden V, West, it jHeckman V. Isaac, I Henderson v. Trave JHendriok V. Emploj WST OP CASES. Hambrongh v. Mutual Life, ice Hamilton t;.Phanix, Ac. 204,308 Hai.ilton'8 (Lord Claud) Case, 402 Hamilton's (Duke of) Trusteea v Fleming, 293 Hamilton v. Mendes, 253, 292 Hamlyn v. Crown Accident, &c., 484 Hamljm v. Talicker Distillery, 230 flancox V. Pishing Insurance Co 77 Hansen v. American Insurance Co 215 Hargrave v. Parsons, 496 Hargrave v. Smee, 32 Hargrave, JHe, 389 Harraan's (Pratt) Case, 436 Hanis V. London and Lancashire m, 217, 219, 220 Harris v, Venables, 177, iSj Harrison v. Douglas, 235 Harrisou V. Ellis, 116 Harrison v. German American &c 458 Harrison v. Hartford, &c., 448 Hartford Fire, &c. v. Small, 458 Hartford Life, &c. v. Unseli, 212 Hartigan v. International Life Co 225 Hartmann v. Keystone State Co 152 Harveyv. Beckwith, 231 Hastie v. de Pevster, 285 Hastings Mutual Fire Co. v. Shan- noD, 447 Hatch V. Mutual Life Co., 139 Hathaway v. State Insurance Co 196 ' Hatton V. Beacon Co., 191 Hatton V. Provincial Co., 212 Havens v. Middleton, 298 Hawkins v. Coulthnrst, 372 Hawkins t,.Woodgate. 364, 366 Haworth v. Sickness, &c., 498 [Hawthorne's Case, 451,457 I Hawtrej's Case, 436 I Haycock's Policv, 341, ^Si Hebdenv. West,i6,46,48,74 lUeckmanv. Isaac, 71 [Henderson t;. Travellers, &c., 447 Hendnok v. Employers, &c., 485 xxl Hendrickson v. Queen Insuiance Co 457 Henkle v. Royal Exchange, 25, 90 Hennessy. ^a,^«r<.. 334, 35/' ^ Henry v. Agricultural Mutual Co., Henry Eifle Barrel Co.r. Employers' l^iability Corporation, 47, 285 Henson v. Biackwell, 76, 364 Hentig V. Stanifortb, 94 Herbert v. Mercantile Fire Co., 127 Hercules Ca. v. Hunter, ,29, ,80. 234, 240, 241 Herman v. Jeuohner, gj Hermann v. Niagara Fire Co., 470 Hey V. Wyche, 298 Hicks V. Newport Railway, 20, 472 Hiddle V National, &c., of New Zea- land, 207 Hill V. Hartford Fire, 472 Hill V. Patten, 25 Hill V. Secretan, 58, 59, 68, 77 Hill V. Trenery, 351 Hilliard v. Thurston, 203 Hillierr. Alleghany Co'., 131 Hinckley v. Germania Fire Co., 37 Hobday v. Pefers, 351 Hodge V. Security Co., 470 Hodgson V. Glover, 45 Hodgson V. Marine, 83 Hodson V. Observer Co., 24, 77, 9. 351 ^' Holditch's Case, 435 Holland v. Smith, 72, 364 Holmes v. Blogg, 38 Holt's Case, 402 Holt V. Everall, 39, 350 Holtzman v. Franklin Fire, i^i 1,2 Holzapfel v. Baker, 301 ^ Home Insurance Co. t;. Baltimore Water Co.', 63, 64, 264, 466 Home Insurance Co. v. Garfield 276 Home Insurance Co. v. Myer, 206 Home Insurance Co. v. Thompson, 277 Hone V. Mutual Safety Co., 285 Hooper v. Accidental Death Co., 491 Hooper v. Robinson, 61 Hopkins v. Hawkeye Co., 84 ^?J < m > ■< hi xxu U8T OF CASES. il I I r niiiin Hopkins V. Preicott, 177 Horden r. Oomtneroial Union, 115 Hordern v. Comm^roial Union, 34 Home V. Anglo- Australian Co., 139, 140, 14a, 145 Hort'i Case, 433 Hough V. Head, 239, 241 Houghton, Ex parte, 68 Howard v. Itefuge Friendly Society, 44.49 Howard's Case, 1 1 1 How's Exors.' Case, 435 Howell V. KDicJcerbocker Co., 113 Howell's Case, 436 Howes V. Dominion Fire Co., 55, 128 Howes V. Prudential, 330, 349 Huch V, Globe Iii-uranoe Co., 273 Hacking v. People's Insurance Co., 12 Huckman v. Femie, 152, 172, 228 Hugg V, Augusta lasurance Co., 274 Hughes V. Searle, 352 Huguenin v. Rayky, 153, 172 Hummell's Case, 388, 411, 412 Humphrey v. Arabin, 364, 368 Humphrey v, Hartford Fire Co., 304 Hunt's Case, 423 Hutcheson v. National Co., 161 Hutchinson v. Wright, M5 Hutton V. Waterloo, 15 Ibbetson, Ex parte, 320, 330, 336, 504, 507 IlUnois Central Co. v. Woolf, 84 Imperial Marine Co. v. Fire In- surance Corporation, 12, 280, 283 Indemnity Cash, 428, 429, 430, 432 India and London Co., He., 437 IngersoU v. Knights, &c., 43, 143 Inglis V. Stock, 56, 67. 68 Inman v. South Carolina, &c., 250 Insurance Co. v. C. D., 247 Insurance Co. v. Eggleston, 99 Insurance Co. v, Fogarty, 274 InsuraD' M Co. v. Hope, 277 Insurance Co. v. Insursnce Co., a8a 284 Insurance Co. v. Norton, 224 Insurance Co. v. Raddin, 212 Insurance Cu. v. Thompson, 46 Insurance Co. v. Transportation Co., 124 Insurance Co. v. Up de QraflF, 70 Insurance Co. v. Wilkinson, 149, 150, 447 International Life Co., Be, 419 International Lire Co., v. Hercules Co., 436 International Trust, &c. v, Norwich, &o., 452 lonides v. Pacific Co., 26 lonides v, Pender, 4, 97, 120, 218 Irving V. Manning, 241, 270 Isaacs V. Itoyal Insurance Co., 107, III, 112 Isitt V. Railway Passengers, &c., 486 Izon V. Gorton, 301 Jackson v. Boylston Mutual Co. 24s. 249 Jackson v. Forster, 144, 145, 192, »96, 329. 348 Jacobs V. Equitable Co., 457 Jacques v, Golightly, 48 Jacques v, Harrison, 318 JeftVles V. Union Mutual, 147 Jeffrey's Policy, 380 Jersey City Co. v. NichoUs, 218 Jeston V. Key, 350 Johnson v. Ball, 352 Johnson v. New Zealand Co., 53, 55 Johnson v. North British and Mer- cantile, 191, 265, 304 Johnson v. Swire, 351 Johnson v. Union Mutual, 37 Johnston v. Western Co., 21 "C, ^40 Jones V. Carey, loi Jones V. Consolidated Co., 348 Jones V. Festiniog Raiiwe - 47 Jones V. Gibbons, 335 , Jones V. Mechanics' Fire Co., 219 Jones V. Provincial Co., 23, 149 Jones V. Scottish Accident, 438 445 LIST OF CASES. .Tojco V. Kennard, io8, 270, 327 .Jojce V. Kealm Co.. 28a, 283, 28e 'loyoe V. Swann, 50, 52 Kahmwbilbr v. Phcenix, 232 Kaiin V. Knightly, 4 Kaltflnbach v. M'Kenzie, 242, 243 Kanadjr v. Qore District, 198 Kekewioht; Manning. 337, 350 Kelly V. Hoohelaga, 126 Kelly V. Home, 37 Kelly V. Liverpool, &o., Co., 191 Kelly V. London and StafTurdsbire, . ,84,438,443,444,4^5 X. lly V. Mutual, &o., 154 Kei/y w. Plimr.ix, 73 Kelly V. Soliri, 10^ Kelsallv. Tyler, 237 KemJ^i, v. StevenB&Co., 60 Kannody's Trustees, v. Sharpe, 1C9 Kensington, Sx parte, 378 Kent Mutual, He, 424 Kent V. London and Staffordshire, 81 Ker r. Hastings Mutual Co., 199 Kerr t-. British American Assurance 209, 210 Kerwin v. Howard, 353 Kidaton v. Empire Marine Co., 11,4 Kill V. Hollister, 229 ^^ King, Ex parte, 506 King t;. Accumulative Life Co., 420 SOI ' King V. Glover, 45 King V. Lucas, 358 King V. Prince Edward, &c., Co., King V. State Mutual Co., ^o^ 314 ^' King V. Victoria, &c., Co., 247 Kingdon v. Castleman, 351 Kingsford v. Swinford, 369 Kirby's Case, 399 Kirkpatrick V. Soutto Australian Co., Klein v. New Fork Life Co., 99 Knickerbockers. Pei.dleton, 84, 211 Knox's Case, 436 Knox ..Turner, 362, 363 ,69 Knox V. Wood, 45 58 Koster v. Eason 448 xxiii I Kunwe v. American Exchang. Co. ' LAOKEiwTEiir V. Lackerttein, 352 L<»farge t;. London, Liverpool, and Olobe, 207 Laidlaw v. Liverpool and London Co., 216 ' , I^aird V. Securities, &c., Co., 50a Lambkin v. Ontario Marine, 129,311 Lambkmr. Western Co., 201,21c Lancaster, Exparte. 362, 364, 368 LancashireCo.t;. Chapman, 211 Wey'8Case,4o,,432,433 i^ngdale v. Mason, 194 I^angel v. Mutual Insurance Co. 210 Langhom v. Cologan, 25, 95 Langston, Ex parte, 378 Langueville v. Western Co., 137 Lapierre v. London and Lancashire. 94 Larocque v. Royal, 233 Last V. London Assurance, 422 Law V. London Indisputable Co.. 14 48. 75. 328, 415 * Law V. Newnes, 157 Lawder v. Lawder, 498 Law Fire v. Oakley, 251 Lawrence v. Accidental Death Co 484 Lazarus v. Commonwealth, 45 Lazensky v. Supreme, &c., 21a Lea V. Hinton, 361, 364, 365 Learmonth, Jie, 343, 507 Lee V. Abdy, 333, 441 Lee's Case, 400 Leeds v. Cheetham, 27?, 20? 700 Lefeuvre v. Sullivan, 379 Lefevre v. Boyle, 340 Unders v. Anderson, 445 Leonard v. Clinton, 356 Leslie v. French, 507 Lethbridgo V. Adams, 420 Levy t;.BaiIlie, 132,216,217,218 Levy V. Merchants Co., 254 Lewine's Case, 449 Lewis V. King, 363, 364 Lewis V. Rucker, 239, 270 1/ ! (liii XXIV LIST OF CASES. ■i III 1 I! I Ijewis r. Springfield Co., 124 Leyton, He, 355 Life Association of ScoUand v. Foster, 31, 149, 152, 159, x6i Limeri'-k Co. v. OTenall, 379 Lindenau v. Desborougli, 77, 126, 153, 163, 164, 174 Linglcy v. Queen's Insurance Co., SO. 72 Linford v. Provincial Horse, &c.. Co., io5, 447, 456 Lion Life, &c., Co., lie, 413 Lion Mutual Marine r. Tucker, 80 Lishman v. Northern Marine, 22 Liverpool and London i: Guntner 1 82, 184 Liverpool, London, and Globe v. Wyld, 25 Liverpool Plate Glass Co. v, Pelle- tier, 472 Liverpool Starr,&c. v. The Travellers' Soo., 500 Lloyd's Case, 401 Lloyd V. Union Co., 36 Loader v. Kemp, 293 Lockhart v. Cooper, 50, 62 Lockyer r, Oflfley, 112, 492 Lofift V. Dennis, 295 301 Logan V, Commercial Union, 208 London Assurance v. Mansell, 8, 35, 36, 96, 156, 163, 164, 165, 170, 174, 228 London Assurance v. Sainsbury, 239, 247, 248, 251 Lo/'don Guarantee Co. v. Fearnley, 203, 215, 492, 499 London and Lancasiiire Co. v. Graves, 138 London and Lancashire Co. v. Honey, 170, 187, 215, 233 London and Lancashire Life v. Fleming, 81, 84, 86, 103 London Life Co. v. Wright, 24, 94, 394 London and N. W. R. v. Glyn, 60, 62, 63,68 London and N. W. R. v. Whinray, 497 London and Provincial v. Ashton, 388 London and Provincial v. Seymour, 36 London, Liverpool, &c. v. Wyld, 176 London Marine Co. , Ife, 420 Long V. Beeber, 184 Loraine v. Thomlinson, 92 Lord V, Dall, 44 Lord Advocate v. Ear) of Fife, 511 Lotinga v. Commercial Union, 144 Louisiana Fire Co. v. Now Orleans Co., 288 Lovell V. St. Louis, &c., Co., 82 LowOil Co. V. Safeguard Fire, 264 Lowry v, Bourdieu, 91, 93, 97 Lucena v. Crawford, 40, 44, 46, 58, 60, 68. 464 Luse V. Sileth, jEx parte Dever, 353 Lycoming Fire v. Schwenk, 194 L}comi.ig Fire v. Ward, 445 Lyde v. Barnard, 336 Lynch v, Dalzell, 40, 46, 92, 119, 196. 320, 322 Lynch v. Dunsford, 97, 468 Lynch v, Hamilton, 97 Lyons v. Providence Washington Co., 138 MacCarthy v. Travellers' Co., 485, 486 MacClure v. Gerard Fire Co., 137 MacClure's Claim, 449 MacClure v. Lancashire Co., 114, "S. 136 McCowan v. Baine, 31 McCuaig V. Quaker City Co., 213 MacCullagli v. Yorkshire Insurance Co., 440, 445 MacCuUoch v. Gore District Co., 269 Macdonald v. Irvine, 329 Maodonald v. Law Union, 161, 163 Macdonell v. Beacon, 188 MacElwel v. New York, 353 MacEwan v. Gutheridge, 123 Macfarlane v. A ndes Insurance Co. , 23 Macf arlane v. Royal London Friendly, 43 MacGibbon v. Queen Insurarce Co. , 132, 133 Macgregor v. Horsfall, 245 Mack V. Lancashire Co., 213 MacKoan v. Commercial Union, 206 Mackenzie's Exors.' Case, 400 Mackenzie v, Mackenzie v. < Mackenzie v. Mackenzie v, } 287 Mackie v, Eun 443. 452, Mackie v, Phoe MacLaws v. U: perance C( Mackiin v. Wai Maclachlan v. '. Maclean's Trusi Maclean v. Equ Macleod v. Citii Macmanus v. E Macmillan v. G 219, 220 Macqueen v. Ph Macrobbie v. Ac MacRossie v. f Co., 209, 21 MacSwinney f. J 45 Macvicar v. Pola Madden v, Lancj Magawley's Trus Mair v. Railway 169, 170 Malcher v. King ^ Mailory v. Travel Manby v. Greshai 493 Manchester Fire ( Mangles v. Dixon Manhattan Co. v. 143 Manhattan Co. v. ' Mann v. AVestern, Manners v. Furze, Manufacturers, &c 488, 490 March v. Att.-Gen, Marine Co. v. St. J Marks v. Hamilton, Marquis of Northai 74 Marriage v. Royal ] Marriott v. Kinners Marsdeav. City and LIST OF CASES. Mackenzie v. Mackenzie, 3e6 Mackenzie v. Coulson, 25 Mackenzie v. Van Sickles, 48 Mackenzie i;.Whitwortb, 4, 280, 28s, 287 Mackie V. European Co., 24, 27, 109, 443, 452, 455. 461, 462 Mackie v. Phoenix, 106 MacLaws v. United Kingdom Tem perance Co., 161 Mackiin v. Waterhouse, 61 Maclachlan v. Etna Co., 468 Maclean's Trusts, 345, 346 Maclean v. Equitable, 206 Macleod v. Citizens' Co., 216 Macmanus v. Etna, 215' Macmillan v. Gore District Co., 218 219, 220 ' Macqueen v. Phoenix Co., 27 Macrobbie v. Accident Co., 169 MacKossie v. Provincial Insurance Co., 209, 210 MacSwinnej.. IJojal Exchange Co., 45 Macvicar v. Poland, 502 Madden v. Lancaster, &c., m Magawley's Trus^, 348, 349 Mair V. Kailway Passengers, &c 169, 170 ' Malcher v. King William's Town, 74 Mailoryz,. Travellers' Co., 142,484 Manby v. Gresbam Life Co., 99 21c 493 ' Manchester Fire Co. v. Wykes, m-^ Mangles v. Dixon, 339, 340 Manhattan Co. v. Broughton. 140, 143 Manhattan Co. v. Willis, 212 Mann v. AVestern, 210 Manners v. Furze, 503 Manufacturers, &c. v. Dorgan, 483, 488, 490 March V. Att.-Gen., 404, 417 Marine Co. v. St. Louis Co., 440 Marks .. Hamilton, 45, 50, 72 Marquis of Northampton v. Pollock 74 Marriage v. Royal Exchange, 310 Marriott v. Kinneisley, 351 Mansden v. City and County Fire, 124 XXV Marshall v. Emperor, 162 Marshall v. Schofield, 57 Martin's Claim, 423 Martin v. Home, 176 Martin v. International, 460 Martin v. bitwell, 89 Martin v. Travellers, 484 Martineau v. Kitchen, 60, 66 Maits V. Cumberland Co., 73 Marvin v. Universal Life, 449 Mars V. Travellers, &c., 491 Mason v. Agricultural Mutual, 217 Mason v. Andes, 191 Mason v. Hartford, 192, 459 Mason v. Hartford Fire, 35 Mason v. Harvey, 206, 207, 208, 219 Mason r.Sainsbury, 194, 242, 247 Mag'^e V. Hochelaga Co., 82 Master v. Miller, 25 aiatthew V. Northern, 341, 4x8, 419 Matthewson v. Royal, 67 Matthewson v. Western Co. 253 Maugham v. Ridley, 378 ' May r. Standard Fire Co., 197, 198 Mayall f. Mitford, 117, 158 Maynard v. Rhode. 151, 152, ,^3, 166, 168, 227, 469 Mayor of New York v. Brookln, Fire, 50 Mead V. Davison, 22, 462 Meagher v. London and Lancashire Fire Co., 213, 218, 219 Mears v. Humboldt, 182 Mechanics' Building Society v. Gore District Co., 191 Mellor's Policy Trusts, He, 39 Mercantile Mutual Marine Co. Be 401 ' ' Merchants' Co. v. Firemen's Insur- ance Co., 12 Menzies v. North British Co., 240 Merrick ..Germania, 137, 264, 268 Mernck v. Provincial, 184 Mexborough v. Bower, 235 Meyer v. Isaac, 32 Miall V. Western Co., 321, 322 Midland Insurance Co. v. Smith, 12?, 128,293 ^ Mildmay v. Folgham, 326 Mildred v. Maspous, 24 I I ff 9« 33 > ^ i r* to TO 1 > i SO -< 1 'ill ■ ! IP XXVI LIST OF CASES. Mini.'ii 'III llllllliill ,ii!ii Millandon v. Atlantic, 235 Miller, lie, Ex parte Woodley, 505 Miller v. Life Insurance Co., 83 Miller v. Warre, 78 Milligan v. Equitable Co., 52, 69 Mills V. Griffiths, 318 Milroy v. Lord, 350 Minifie v. Railway Passengers' Co., 233 Mitchell V. Edie, 244 Moadinger v. Mechanics' Fire, 35 Moens v. Hay worth, 163, 164 Mobile Railway v. Jurey, 247 Moffatt V. Reliance Co., 449 Mollison V. Victoria Co., 70 Moloney v. Tulloch, 444 Money v. Gibbs, 377 Montreal Insurance Co. v. M'Gilliv- ray, 86, 394, 395, 446, 448,450. 453 Moore v, Hal fey, 86 Moore v. Protection Co., 216 Moore v, Woolsey, 140 144, 348 Morel V. Irving Insurance Co., 272, 278 Morel V. Mississippi Life Co., 482 Morgan v. London General Omnibus Co., 495 Movland v. Isaac, 364 Morocco Land Co. v. Fry, 22 Morrison v. Muspratt, 149, 163 Moses V. Pratt, 91 Moss V. Legal and General Life, 24 Motteux'?'. London Assurance, 23 Moulor V. American Life, &c., 23, 164 Muir V. Fleming, 378 Muirhead r. Forth Insurance, &c., 157 Mulvey v. Gore District Co., 215 Murray v. New York Co., 139 Murray v. Wells, 357 Mutual Life Co. r. Allen, 43, 320, 330, 441 Mutual Life Co. Mutual Life Co. Mutual Life Co. Mutual Life Co. Mutual Safety v. Myer v. London, Globe, 439 Myers v. Perigall, 391, 403 Armstrong, 342 Lawrence, 488 Lubrie, 140 Robinson, 448 Hone, 280, 282, 286 Liverpool, and National Bolivian Navigation Co. V. Wilson, 450 National Marine v. Hal fey, 285 National Marine v. Protector, 285 National Masonic i'. Shryock, 486 National Provident Life Co., Re, 436, 437 Naughter v. Ottawa Co., 185, 459 Neall V. Read, 58 *" ■!'.» V. Union Mutual, 87, 170, 449 Nepean v. Martin, 284 Newcastle Fire Co. v. MacMorran, "3. 154, 157, 164 New England Fire Co. v. Wetmore, 255 New South Wales Bank v. North British and Mercantile (No. x), 70, 92, 197, 198, 323 New South Wales Bank v. Com- mercial Union, 319 Now South Wales Bank v. Royal Insurance, 277, 279 Newman v. Belsten, 21, 22, 23, 109, 357. 358 Newman v. Newman, 335 Newton v. Gore District Co., 215 New York Bowery Co. v. New York Fire, 42, 127, 280, 287, 288 New York Central Co, v. Protection Co., 285 Now York Express v. Traders' In- surance Co., 124 New York Life v. Flach, 149 New York Life v. Fletcher, 96, 173 174, 448, 462 New York Life v. Hendren, 227 New York Life v. Statham, 226 New York State Co, v. Protector Co., 28s, 286 Niagara Fire Co, v. De Graff, 37 Niblo V. North American Insurance Co,, 275 NichoU's Case, 400 NichoUs V. Scottish Union, 257 Nicholson v. Nicholson, 414, 421 Nicholson v. Phcenix Mutual, 184 Nicol V. Broun, 467 Noad V, Provincial Co,, 135, 190 Norris v. Caledonian, 376, 380, 507 North American Fire v, Throop, 126 LIST OF CASES. North American Life v. Burroughs, 486 North British and Mercantile v. London, Liverpool, and Globe, 33, 62, 257, 258, 260, 266, 314 North British and Mercantile v Moffatt, 33, 60, 62, 65, 246 North British Insurance Co, v. Hal- H 451, 4S7 North British Insurance Co. v. Lloyd, 497 North-Jiiastern Insurance Co. v. Arm- strong, 256 Northern Counties of England Fire &c., Jie, 281 North of England Pnre Oil-Cake v Archangel Marine. 321. 322, 324 North-Western, &c. v. Muskegon, 170 Northrup v. Railway Passengers'' Co 476 ■' Norton v. Royal Co., 216 Norwich Equitable, &c., lie, 281 Notman v. Anchor Co., 31, 227 Norwood, Exjyarte, 284 Noyes v. North- Western Co. n? 138 ^'' Nozas V. North-AVestern Co., 114 Nunneley, Ejc parte, lie Times Life Co., 436 Nussbaum v. Northern, &c., 196 xxvii Oakley v. rortsmouth Railway, 61 Ocean Wave, The, 250 O'Connor v. Imperial, 63 Ogdeny. Montreal Co., 304, 464 Hara's Tontine, 330 Oldfield V. Price, 221 Oldmun V. Bewicke, 161. 196. 207, 208 Omnium Co. v. Canada Ins. Co., 254 Oora V. Bruce, 90, 94 Otterbein v. Iowa State Insurance Co., 26 Oxford Building Society v. Waterioo Mutual Firo Co., 200 Orr-Ewing v. Orr-Ewing, 441 Over V. Lake Erie, &c., 249 Pacaud v. Monarch Co., 189 Pacific Mutual Co. v. Butters, 454 Packard v. Connecticut Life, 357 Packer v. Gibbine, 301 Padstow Total Loss Association, Me 384, 389 ' Page V. Fry, 54, 56 Page V. Sun Office, 267 Paine v. Meller, 69 Pftlmer V. Hawes, 151 Palmer v. Merrill, 337 Palyart v. Leckie, 93 Par6 V. Scottish Imperial Co., 4C1 Paris V. Gilham, 274, 276 Parken v. Royal Exchange Co. 440 441,442,443 " '^^' Parker v. Eagle Co., 277 Parker v. Equitable, J3 Parker v. Marquis of Anglesey, 369 Parke8z;.Bott,343,352 Pariby's Case, 424 Parry v. Ashley, 196, 326 Parsons v. Bignold, 25, 46, 459 Parsons v. Queen Ineurance Co., 30? Parsons v. Standard Insurance Co 188, 189 Partridge v. Albert Insurance Co. 402, 462 Paterson v. Powell, 48, 93 Patten v. Employers' Liability. &c., 205, 491, 492 Patterson v. Royal Insurance Co., 28, 462, 463 Patrick V. Eames, 78 Patrick Co. (St.) v. Bremner, 444 Pawson V. Watson, 165, 166 Pearson v. Amicable, 350 Pearson v. Commercial Union, 31, P 1,^^'^,^' ^?^' "4, I IS, 137, 138' I'eck V. Phcenix Co., 184 Redder v. Moseley, 352 Peddie v. Quebec Fire, 116 Pellas V. Neptune, 320, 333 Pelley v. Wilson, 329 Pelly V. Royal Excbauge, 30 Pelly V. Wathen, 379 Pender v. Ainsley, 301 Pendlebury v. Walker. 257 PenfolJ V. Universal Life Co., 488 Penley ,.. Beacon Co., 24, 106, 201, 416, 456 Pennef\uher v. Baltimore, &c.,Co 57 > * J; I ! \- 1 1 It- n XXVIU LIST OF CASES. i^:l mill Pennell v. Millar, 343 Penniall v. Harborne, 294, 298, 311 Pennsylvania Mutual Co. v. Me- chanics' Savings Bank, 168 Pennsylvania Mutual, &c., v. Wiler, 162 Peppitt V, North British and Mer- cantile, 457 Pemns v. Marine, &c.,Co., 153, 173, 480 Perry v. Newcastle District Co., 94, 394 Perry v. Provident Life Co., 492, 493 Pettigrew's Case, 71 Pfleger v. Brown, 343, 364 Phillip's Insurance, 345 Phillips V. Foxall, 497, 500 Phillips V, Grand River Co., 177, 180 Phinney v. Mutual, &c., Co., 440 Phcenix Co., .Be, Burgess and Stock's Case, 417, 463 Phcenix Co. v. Sheridan, 99, no Phoenix Co. v. Erie and Western, 61, 125, 246, 248, 249 Phcenix Mutual Co, v, Doster, 85 Phcenix Mutual Co. v. Raddin, 85 Pirn V. Eeid, 126, 166, 181, 185, 211, 225 Piuchin v. Realm Fire Insurance Co., 462 Planters' Insurance Co. v. Myers, 4SS Piatt V. Kerry, 293 Pocock's Policy, 346 Pollock V. U. S. Mutual, 488 Pomaret v. Provincial Co., 200 Poole V, Adams, 69, 324 Poole V. National Provincial Life, 450 Port Glasgow, &c., Co. v. Caledonian Railway, 20 Post V. Hampshire Mutual Co., 269 Potomac, The, 247, 248, 251, 256, 257, 317 Potter V. Rankin, 4, 23 Pott's Case, 437 Power's Case, 435 Powles V, Innes, 321 Pownall's Case, 400 Preston v, Neale, 362 Price, Ex parte, 424 Price V. Worwood, 299 Priest V. Citizens' Mutual Co., 2I0, 211 Prince of Wales Co., J57a;j)art(j. See Be Athenseum Prince of Wales Co. v. Atheuseum Co., 446 Prince of Wales Co. v. Harding, 104, 387, 394. 395. 396 Prince of Wales Co. v. Palmer, 35, 95,141 Princess of Reusa v. Bos. See Reuss, Princess of Pritchard v. Merchants', &c., Co., 87, 103, 140 Professional Life Co., Be, 420 Propeller Monticello v. Mollison, 245 Providence Co. v. Martin, 489 Provincial Co. v. Etna Co., 202, 288 Provincial Co. v. Roy, 451 Prudential Co. v. Etna Co., 288 Prudential v. Thomas, 381, 382 Pugh V, Duke of Leeds, in Pugh V. L. B. S. C. Railway, 489 Purdew v. Jackson, 339 Putnam v. Commonwealth Insurance Co., 182 Pym V. Blackburn, 293 Quebec Insurance Co. v, St. Louis, 251 Queen Insurance Co. v. Devinney, 180 Queen Insurance Co. v. Parsons, 26, 27 Queen of Spain v. Parr, 468 Quilter v. Mapleson, 297, 299 Quin V. National Insurance Co., 113 Racine v. Equitable, 209 Radcliffe v. Ocean, &c., 47 Ramsay's Case, 389 Ramsay Cloth Co. v. Gore District Insurance Co., 191 Ramshire v. Bolton, 336 Randal v. Cochran, 247, 248 Riindall v, Lithgow, 199 Rivnkine v. Potter, 242, 243, 244 Rawbone's Will, 329 Rawls V. A 76 Rayner v. P 275, 28( Redpath v. i Reed's Case, Reed V. Colo, Reed v. Lan( Reed v. Royt Reed v. Will: 51 Reese v. Mut Reesor v. Pro Reg. V. Boyn( Reg. V. Plana Reg. V. Whit) Reid V. Gore J Reid V. M'Cru Reis V. Scottit Relief Fire Co, Reuss, Princes Reynard v. A 308 Reynolds v. 1 483 Rhodes v. TJnic Eiach V. Niaga 218, 219 Rice V. Provinc Richards v. Eas Richards v. Pla Richland Count Ridley v. Plymc Riggs V. Comm( Eiley V. Home, Bintoul V. New way, 249 liiplay V. Insurai Ritt V. Washingi Bitter v. Mutual Rivaz's Case, 43( Roberts v. Lloyd, Roberts v. Securi Robertson's Case, Robertson v. Frei Robertson v. Han Robertson v. Mar IJobertson v. Met l?obbins v. Firenia Robinson v. Blanc LIST OF CASES. iiawls V. American Insurance Co Bayner v. Preston, 69, 197, 255, 263, 275,289.3x8.3.0.322,324 ^' Redpath v. Sun Mutual, 441 Reed's Case, 401 Reedr. Colo, 412 Reed V. Lancaster Fire Co., 114 Reed V. Royal Exchange, 38 Reed V. Williamsberg City Fire Co., Reese v. Mutual Benefit Co., 337 Reesor v. Provincial Co., 251. zka. Reg. V. Boynes, 217 •' ' ^'* Reg. V. Flanagan, 16 ^g. V. Whitmarsh, 388 Reid V. Gore District Co., 187 Reid V. M'Crum, 310 Reist;. Scottish Equitable, 22c ReliefFireCo. t;. Shaw,23 Reuss, Princess of, v. Bos, 444 Eeyn^ard .. Arnold. 275, 300, 301, Reynolds v. Accidental, &c., Co., Rhodes^. Union Insurance Co., 128 Riach V. Niagara District Co.. 216 218, 219 ' Rice t, Provincial Co., 212, 216 Richards v. Easto, 292 Richards v. Platel, 379 Richland County v. Sampson, 73 Ridley t;. Plj^mouth Co., 388 R'ggs V. Commercial Union, iz Riley V. Home, 61 Rintoul V. New York Central Rail way, 249 liipley V. Insurance Co., 485 Ritt V. Washington Marine, 4C4 Bitter V. Mutual Co., 140 Rivaz's Case, 436 Roberts v. Lloyd, 336 Roberts v. Security Co., 83 Robertson's Case, 384 Robertson v. French, 30 Robertson v. Hamilton, 58 Robertson v. Marjoribauks, 34 Kobertson ,;. Metropolitan Life, 224 obbmsr.. Fireman's Fund, 264 Robinson v. Bland, 442 Robinson t.. George Insurance Co., Robinson z,. International Life, 460 Robinson t;. United States, &o., 43 Robson i-. M'Creight, 415 "^ Roebuck z;.Hamerton, 48, 40 Rogerst;. Grazebrook, 311 Rohrbachr.GennaniaCo.,74,455 Rekes z,. Amazon Insurance Co 204, 212, 466 Rolfe V. Harris, 298 RoUand V North British and Mer- cantile, 114, u^ Rombachr. Piedmont Co., 44 Roperv. London, 206, 231 Rose ^. Medical, &c., Co., ig Ross .. Bradshaw, 159, 160, ,65, 409, 469 ^' |Ro«s *•. Commercial Union, 208 I 2I0 ' Rossiter I- Trafalgar Life Co. 22 443.452,461 •*' Routh^^.. Thompson, 89, 90. 464, Routledge V. Burrell, 155, iSr 208 Roux ..Salvador, 244, 274 ' Row v. Dawson, 332 Royal Bank of India's Case, 398 Royal Insurance z-. Watson, 422 Rumme^ns .. Hare, 329, 330. 349. Russ V. Mutual Co., 177 Russell, Me, 334 Russell r. Canada Co., ,56, 162 ityder V. Commonwealth Co., 278 Sadler's Case, 396 Sadler's Co. .-.Badcock, 13,40,46 ^ , 92, 196, 320, 322 ^ ^ ' ^^' Sat,, Marquis of Northampton, 74 Salvin r. James, 102, 493 ' ^^ Sampson t- Security Insurance Co., Sanderson t-. Aston, 497 Sanderson v. Simonds, 2? Sargent's Trusts, 3S2 Saunders, E.v parte, 341 Saunders v. Best, 508 t '.'- to > -< ! i . XXX LIST OF CASES. Iiiiil IP! Saunders v. Dunman, 361, 380 Sawtelle v. Bailwuy Passengers' Co., 490 ScanloQ V. Sceoles, 152 Schmidt v. New York Union Co., 128 Schneider v. Provident Life, 489 Soholefield v. Lock wood, 312 Schondler v. Wace, 192, 343, 348 Schultze V. Schultze, 356 Schultze V. Insurance Co., 140 Schuster v. Dutchess Co., 177 Schumann v. Scottish Widows' Fund Society, 359 Scott V. Avery, 229, 230 Scott V. Eagle Co., 413, 414 Scott V. Home Insurance Co., 129 Scott V. liiverpool Corporation, 231 Scott V. Mercantile, &c., 233, 234 Scott V. Niagara District Co., 214 Scott V. Phoenix, 207, 210 Scott V. Eose, 43 Scottish Amicable v. Northern, 222, 258, 260, 279, 314 Scottish Economic, Ex parte, 405 Scottish Equitable v. Buist, 7, 35 82, 85, 152, 340 Scottish Provident v. Boddam, 171 Scottish Widows' Fund v. Buist, 19^ 339 Scripture v. Lowell Co., I2T, 122, 124 Seaman's Co. v.N. W. Insurance Co., 99 Sea Insurance Co. v. Hadden, 247 Sears v. Agricultural, 97 Seqhetti v. Queen Insurance Co., 217 Seton V. Law, 460 Severance v. Continental Co., 115 Sewell V. King, 329, 331, 349, 350 Seymour v. London and Provincial &c., Co., 36 Seymour v. Vernon, 289 Shackleton r. Sun Fire Office, 117 Shannon v. Gore District Co., 189, 447 Sharp V. Milligan, 296 Shaw V. Eobberds, 119, 125, 166, 184, 185 Shaw V, St. Lawrence Fire Inpur- ance Co., 210 Shearman v. British Empire Co., 361, 380, 507 Sheeley v. Professional Life Co., 445 Shepherd v. Beeoher, 497 Sherbonneau v. Beaver Co., 56 Shilling V. Accidental Death Co., 43. 44. 77, 151. 351. 474, 488 Sibbald V. Hill, 107 Sickness, &c.. Association, v. The General, &c., Corporation, 109, 111,259 Sidaways v. Todd, 57, 62, 72 Sillem V. Thornton, 113, 186 Silverthorne v. Gillespie, $8 Simons v. New York Life, 49 Simpson v. Accidental, 86, 478 Simpson v. Scottish Union, 275, 276 Simpson v. Thompson, 6, 249, 25 1 Simpson V. "Walker, 363 Sinclair Maritime, &c., Co., 481, 484 Siordet v. Hall, 124 Sitter V. Morrs, 62, 63 Skingley, lie, 294 Smedley v. Felt, 357 Smidmore v. Australian Gaslight Co., _ 5. 247, 251, 252 Smiley v. Citizens' Fire Co., 213 Smith V. Accidental, &c., Co., 31, 486 Smith V. Bank of Scotland, 500 Smith V. Colonial Mutual, no, 27S Smith V. Columbian, 304, 314 Smith V, Commercial Union, 206 Smith V, Lascelles, 59, 69 Smith V, Queen, 207 Smith V. Royal, 73 Snow V. Carr, 466 Solicitors', &c., Co. v. Lamb, 1461 200 Solvency Co. v. Freeman, 502 Solvency Co. v. Froane, 501, 502 Solvency Co. v. York, 501 Somersf. Athenjeum Co., 168, 176, 459 Soupras v. Mutual Insurance Co., 190 Southard v. Railway Passengers' Co., 476, 482 '■ f LIST OF CASES. xxxi 123, South Australian Insnrance Co, v. Randall, 65, 66, 194 Southcombe v, Merriman, 152, 169 South Staffordshire v. Sickness and Accident, in, 481 Sovereign Life, lie, 425, 428 Sowden v. Standard Co., 459 Spare r. Home Mutual Insurance, Co., 74 Spencer's Claim, 436 Spencor v. Clarke, 337 Speriiig's Appeal, 395 Splints r. Lefevre, 447 Spoeri v. Massachusetts, &c., 85 Squire v. Campbell, 366 Stacey v. Franklin Fire Co., 192, 257, 265 Stackpoole v, Simonds, 13 Stainbank v. Fenning, 47 Stainbank v. Shepherd, 47 Stainton v. Carron Co., 180 Standard Life v. Fraser, 460 Stanley v. Western Co., 34, 129, 131, 132 Stanton v. Etna Insurance Co., 67 Stanton v. Home Insurance Co., 324 State Fire Co., lie., 415, 418, 4,9, 421 Steamship Samana Co. v. Hall, 203 Stedman v. Webb, 379 Steele v. M'Kinlay, 496 Steen Niagara Fire Co., 200 Steeves v. Sovereign Fire, 217 Stephens, Bx parte, 436 Stephens v. Illinois insurance Co , 303 Stephenson's Case, 402 Stevenson v. London and Lancashire Co., 51 Stevenson v. Snow, 89, 91 Stewart r. Merchants Marine Co., 271 Stirling r. Vaughan, 464 Stock V. Inglis, 42, 45, 6j Stockdale v. Diinlop, 45, 47 Stocks V. Dobson, 335 Stockton V. Fireman's Insurance Co 456 Stokell ('. Heywood, 478 Stokes V. Cox, n^. 187 Stokoe V. Cowan, 328, 348, 382 Stone V. Marine, 89, 91 Stone V. United States Casualty Co., 488 Stoneham v. Ocean, 475, 491 Storie's Trust, 364 Stormont v. Waterloo Life, 140 142, 143 Strachan's Case, 411 Str ohan v. M'Dougle, 330 Street v. Rigby, 236 Strutt V. Tippett, 374, 377 Sturm V. Boker, 61 Sulphite Pulp Co. ,:. Faber, 183, 190, 498 Summers v. Commercial Union, 461 Summers v. Eldston, 396 Sunderland Marino v. Kearney, 24 Sun Fire Co. v. Hart, 184 Sun Fire Co. v. Wright, 45 Sun Mutual v. Mississippi Co., 247 Sun Mutual v. Ocean, 9, 287 Supple V. Cann, 81, 180, 225 Susquehanna Insurance Co. v. Toy Co., 205 Sutherland v. Pratt, 51, 69 Sutherland v. Sun Fire, 221, 222 277 Swan V. Watertown Insurance Co 455 Swann v. Phillips, 336 Swayne v. Swayne, 332 Sweeney v. Franklin Fire, 50 Swete V. Fairlie, 171 Swich V. Home Life Co., 152 Syers v. Bridge, 33 Palamon v. Home and Citizens' Co 132 Talbot V. Frere, 378 Tallman v. Mutual Fire Co., 206 Tarleton v. Stainforth, 100, loi Tate V. Hyslop, 249, 252 Taunton v. Royal Insurance Co. 122, 394, 397 Tayler v. Caldwell, 301 Taylor, Ex parte, 38 Taylor r. Chester, 95 Taylor r. 1 'unbar, 113 Tebktts V. Hamilton Mutual Co., 36 e rr to > SO r: f i: i { i ! I i: M xxxn LIST OF CASES. iiiil i!i|li>NiiJt .'• IjjIU Tebbits v. Dearborn, 78 Tonnant v. TriivellerH, 104, 105 Tonnes v. N. W. Mutual, 357 Tlieobald v. llailway rassongers' Co., IIS, 240,471.473.475 Thomas v. Times and Beacon Co., 214 Thompson v. Adams, 27 Thompson v. Charnock, 229 Thompson v. Grant, 303 Thompson i\ Insurance Co., 99, 100 Thompson v. Montreal Insurance Co., II, 116, 132, 134, 135, 178 Thompson v. Phrenix, 196, 201 Thompson v. Spiers, 457, 504 Thompson v. Taylor, 45 Thompson's Trustees v. Thompson, 353 Thomson v. Woems, 97, 149, 152, 154, 156, 161, 169, 171 Thurburn v. Steward, 442 Thurtell v. Beaumont, 125, 129, 220 Tibbitts V. Mercantile, &c., 32 Tidswell v. Angerstein, 68, 72 Times Fire Co. v. Ilawke, 272, 278 Times Life Co., lie. See Ex parte Nunneley Titus V. Glenfall's Co., 213, 224 Todd V. London, Liverpool, &c., Co., 66 Todd r. Morehouse, 351 Tolman v. Manufacturers' Co. , 279 Tooley v, Eailway Passengers' Co., 483, 490 Towlo r. National Guardian Co., 47. 501 Traders', &c.. Co. r. Wagley, 483 Traill r. Baring, 175, 288 Trainor v. Phoenix, 233, 234 Transatlantic Fire Co. v. Dorsey, 123 Trask v. Insurance Co., 204 Travellers' Co. v. Seavers, 139 Tredwen v. Holraan, 231 Trew ('. Eailway Passengers' Co., 483 Triston v. Hardy, 361 Troop V. Anchor, 79 Tuckr. Hartford Co., 258 Tucker v. Provincial Co., 453 Turbervillo v. Stamp, 292 Turcan, lie, 333 Tyrio /•. Fletcher, 7, 89, 91, 92, 109 Undebhii-l v. Agawam Co., 211 Underwood's Case, 384 Union Marine v. Martin, 283, 286 Union National Bank v. (lerman, 462 Unitarian Congregation v. Western Assurance Co., 268 United Kingdom Life Co., lie, 381 United Kingdom Life Co. v. Dixon 330 United States, &c,, v. Lai ry, 481 Universal Life Co. v. Bachus, 439 Universal Non-Tariff" Co. , lie Forbes' Claim, 97, 167, 168, 174 Unsell ('. Hartford, &c., 212 UzielH V. Boston Insurance Co., 280, 282 Vance v. Foster, 212, 241 Van Zandt v. Mutual B nefit Life, 143 Vaughan v. Menlove, 293 Vernon v. Smith, 274, 295 Vezina v. New York Life Co., 43, 50 328 Vibbon v. Marsouin, 356 Viney v. Bignold, 233 Von Lindenau v. Desborough, 75 Von Wein v. Scottish, 82, 470 Vyse V. Wakefield, 140, 344 Wain WRIGHT n Bland, 42, 94, 140,! 163 Walden v. Louisiana Insurance Co., 126 Walker v. London and Provincial,! 128 Walker v. Maitland, 6 Walker v. Provincial Insurance Co,J 452 Walker v. Western Insurance Co. J 213 AVallace v. German American, &c,, 32 Wallace v. Insurance Co., 3, 274 Waller v. Northern, &c., Co., 487 LIST OF CASES. xxxiii Want ,-. iJlunt, 86, 88, loo, 109, 112, 179 Ward V. Audland, 337 Ward r. Beck, 73 AVaid ('. Day, 224 Waring v. Indemnity Firo Co., 50 Warnoclc v. Davis, 2, i6, 120 Washington v. Cliesebro, 448 I Watcliorn ?•. Langfbrd, 35 Walurioo Insurance Co.. Jie, 3S9 Wafers v. Merchants' Co., 123 Waters r.31onarch, 61, 63, 64, 68, 264 Watkins r. Iteymill, 25 Watson r. Main waring, 149, 15, I Watt V. Union Insuranco Co., 126, 127 I Waugh's Trusts, 376, ^y'j Waydell r. Provincial, 199,211; Webb's Policy, 381 Webb r. Protection Co., 134 I Webster r. British Empire Co . ^27 338 I Webster v. De Tastet, 48 hVeems v. Standard Life Co, 1C2 154. 161, 169 I Weigall V. Waters, 295 jWeir?'. Bell, 461 Weir 7'. Northern Counties Co., 207 I nVelles i\ Boston Co., n I Welsh V. Reynolds, 444 IWerninck'sCase, 436 I West V. Reid, 343, 504 IWestern Insurance Co v. Attwell, , jua V. Provincial 'cheloi , |Western Insur Insurr.nco lAVest of England KVest of England Ffre . . .acs, 245 pVestminster Fire, &c. v. Glasgow, I &c., 222, 223, 279, 307 peston V. Richardson, 330 pestport Union v. Omailey, 498 pestropp V. Bruce, 149 fVheclton V. Hardisty, 467, 468, 469 rVhite V. British Empire Co., 14c ^348 ^^' PVhite V. Lancashire Fire Co., 453 rVhito V. Republic Insurance Co., 124, 132, 136 I Whitehaven Bank Case, 435 Whiteheads. Price, 117, 158 Whiting V. Massachusetts Co., 100 Whittingham v. Thornbrugh, 95, 96 409 Wliyte V. Home Insurance Co., 68 Why to V. Western Insurance Co., 211 Wienholt v. Roberts, 448 Wiggins v. Queen Insurance Co.. 20? Wight r. Brown. 38 Wilkins V. Germania, 159 Wilkinson v. Coverdale, 467 Willesford r. Watso.,, 231, 232, 234 Wj hams V. Atkins, 364, 365, 368 Williams V. Hartford Fire Co 27 ^ Williams ,•. North China Insm-ance <-o., 4, 58, 463 Williams V. Thorpe, 336, 504 Williamson v. Commercial Union, Williamson ,•. Gore District Co., 269 Wilhs v. Pole, 159, 160 Willyams and others v. Scottish ' Widows, Sec, 493 Wilson V. Citizens, 67 Wilson V. Genesee Co., 449 Wilson V. Glasgow Tramway, 495 Wilson V. Jones, 42, 49, 4 c; Wilson r. Lloyd, 426 Wilson V. Rankin, 48 Wilson V. State Insurance, 200 Wilson V. Wilson, 298 Winchilsea (Earl) Policy Trusts, 35, Wmdus r. Tredegar, 100 ^'°g n Harvey, 82, 85, 86, 175 179,199.225,457 Winspear v. Accidental Co., 484 Winston's Case, 412 Winthrop v. Murray, 345 VVinter v. Easum, 358 Witherell v. Maine Insurance Co 124 Witt V. Amis, 329, 330 Wood's Case, 430, 431, 435 Wood's Claim, 98 ^ Woodward r. Republic Fire Co., 92 Woolf..Horncastle, 58, 7^,464 • VVorrall ;;. Johnson, 379 Worsley v. Wood, 156, ,6x, 196 203, 207 209 i I i ,!., !Pill!!i:P xxxiv LIST OP CASES. ■" I Worth! ngton v. Curtis, 44, 79 Wright V. London, &c., Co,, 416 Wnght V. Pole, 45, 240 Wright V. Sun Mutual Co., 94, 394 Wright I'. Ward, 231 Wyatt'B Case, 423 AVylie v. Times, 23 Wyman v. Wymtin, 326 Wynkoop v. Niagara Co., 272, 273 Wynne's Case, 432 Xenos v. Wiokham, 23, 467 Yalloi', Ex parte, 68 Yates V. Dunster, 275 Yates V. White, 245, 247 Yonker's Fire Co. v. Hoflfman Fire Co., 285 Young V. Mutual Life, 82 Young V. Trustee, Assets, &c.,Co. , 503 Young V. Union Co.. 71 L BY WHIG Ala. All. (New Brut Am. Rep. Angoll Insur. Barb. N.Y. Bisseli, U.S. C. Bliss Life Ing. Blatchford, U.S, Busii, Ky. , Ciipc (East Disti Can. S. C. Gaines, N. Y. Conn. Granch, U.S. Da. Sup. Ct. U.{ Dill. C. Ct. U.S. Fed. Hep. (U.S.) Grant, U.C. Gratt. Va. Hall, N.Y. ' Hand, N.Y. Han. New. Bruns. Holmes, U.S. C. C Howard, U.S. Hughes, U.S.C.Rc Hun, N.Y, LIST OF ABBREVIATIONS BY WHICH AMERICAN AND COLONIAL REPORTS &c ARE REFERRED TO IN THIS WORK. Ala. All. (New Bruns.) Am. Rep. Angoll Insur. Barb. N.Y. IViasdl, U.S. C. Ct. Bliss Life Ins. Blatchford, U.S. Busii, Ky. , Ciipc (East Distr.) Rep. Can. S. C. Cainea, N. Y. Conn. Cianch, U.S. Da. Sup. Ct. U.S. Dill. C. Ct. U.S. Fed. Rep. (U.S.) Grant, U.C. Gratt. Va. Hall, N.Y. ' Hand, N.Y. Han. New. Bruns. Holmes, U.S. C. Ct. Howard, U.S. Hughes, U.S.C.Rop. Hun, N.Y, Alabama Reporta. Allen's New Brunswick Reports. American Reports. Angell on Insurance. Barbour's Reports, Supreme Court New York Bissell's Reports, United States Circuit Court liiiss on Life Insurance. Blatchford's Circuit Court Reports, United otates. Bush's Reports, Kentucky. Cape of Good Hope Eastern District Reports. Canada Supreme Court Reports. Caine's Reports, New York. Connecticut Reports. Cranch's Reports, United States. Davis Reports, Supreme Court United States. Dillon 8 Reports, Circuit Court United States. Federal Reports, United States. Grant's Chancery and Appeal Reports, Upper Canada. * Grattan's Reports, Virginia. Hall's Reports, New York. Hand's Reports, New York. Hannay's Reports, New Brunswick. Holmes' Reports, United States Circuit Court Howard's Reports, Supremo Court United States. Hughes's Reports,United States Circuit Court. Hun's Reports, New York. xxxn LIST OF ABBREVIATIONS. III. Iowa •TohiiHon, N.Y. Kent. Cumin. Louig. or La. FiOiiiH Ann. LitiiHing N.V. \i\: ('an. .lur. Lr. Cin. Kop. = TllinoiH lloports. lowii Il'jports. .Tohnson'H lloports, New York. Kent's Coinmontario8. LouiHi'tina ReportH. Loin'Hiana Annual. LaiiHing'w UoportH, Now York, fiowcr Canada .IiiriHt. Lower Canada RopurtH. Maine May Ins. Mitiaouri Maryland Mass. Gush. Mass. Mot. Mass. Pickering Mass. Gray Mass. Allen McCrary (U.S. Cir. Ct.) Mich. Minnesota N. H. N.S.W. Law N.Y. Coinst. N.Y. Sup. Ct. Sandford N.Z. Sup. Ct. Ontario App. Paige, N.Y. Ch. Pen. Peters, U.S. Phil. P. & B. New Bruns. Robinson La. Eus. & Gel. Russ. & Ch. Nov. Sco. Sandford, N.Y. Ch. Sawyer U.S. C. Ct. SickellN.Y. Story Agency Story Reports Sum. Rep. Maine ReportH. May on Insurance. Missouri Reports. ^ Maryland Reports. (jHshiiig'u Massachusetts Reports. Metcalfe's Massachusetts Reports, Pickering's MasHachusetts Reports. Gray's MasHacliusctts Reports. Allen's Massachusetts Reports. McCrary United States Circnit Court Reports. Michigan Reports. Minnesota Reports. New Hampshire Reports. New South Wales Law Reports. Comstock's New York Reports. Sandford's Reports, Now York Supreme Court. New Zealand Supreme Court Reports. .,, Ontario Appeals. Paige's Chancery Reports, New York. Pennsylvania Reports. Peters' Reports, United States. Phillips on Insurance. Pugsley & Burbidge New Brunswick Reports. Robinson, Louisiana Annual. Russell & Gelder, Nova Scotia Reports. Russell & Chesley, Nova Scotia Reports. Sandford's Chancery Reports, New York. Sawyer's United States Circuit Court Rsports. SickoU's Now York Reports. Story on Agency. Story's Reports. Sumner's Reports. ,' li'ili 8an«. or Sanmini Htovt'iiH Qiioboc Dig. Stiinit Lr. ('an. V.C. Q. F). V.C. ('. P. n.C. Er. &App. V.H. Otto Victoria Law Wnll. WuHh. W.ittH & Sor). I'onn. WctKl. N.Y. Wis. LIST OF AHURKVIATI0N8. xxxvii Sansum'fl Dlgost. H'.ovons' Quebec Digogt. NtimrfH UoportH, Lower'canada. JJppor Canada Queen's Bench Reports. %.or Canada Common l'ie«Hl{ep„r,«. Uppor Canada Krror and AppcHi Otto H Reports, Supr„r„„ Court United States. Victoria Law Ileports. Wallace's Report, United States. Was ungton's Iteports, Unite.l States. Wat 8 & Serjeant, Pennsylvania. Wondell H Reports, New Vork. VVisconHin Reports. ERRATA. On p. 384, lino 22, for 1875, read 1896. On p. 472, last line, ^,- 12 & ii Virf ..„,. ■ 12 & 13 Vict. cap. xl ^ • '"''• ""■• '•'""' B THE I NATURE The aim of al the dangers Those who see themselves b' Bhoulders of ( bousideration, jjase of life ir Ihose dependen j»f their death i [lieir creditors ( Those who s price and upo vill leave them, fair profit on isurance busine reduce such iisurers in effec le premiums o] tot errors in th( reniiums charge Jsiness of insur The controllirij fty,- and by refer (") I THE LAWS OF DfSURAFOE. CHAPTER I. NATURE OP THE CONTRACT OF INSURANCE. P ZgLflJSZ^^ »ate provision against p.,,„„, U who see. if eatUrra * ta^t^'^' '°'""°'"- themselves by shiffcinrr ^^..-ui , "^^^^^^er from f.ouMe. „, yettlr'wmirL"" '» ."- ousideradon, to talce tl,e risk ft " o'f • luf i^nT tase of life insurance, they eadeavont' f! " hose dependent on themTc^rfa;! '^™''' '" f their death (.), or trpro^ideTfu rr':/!?? |lien- creditor can be satisfied. '"'='' Those who grant insurance undertake .,,.1, • i pnceand upon calculations which if wdl Id ! "/ i-ilUeave them, after providin» a "ains't 111 IV^"'""^' ^fair profit on the capital whicV yldCfr-'' »-rs in ei't't.T;\^TCra:ir ie premuuns originally demanded, whereby h.v °" "--ofins^tc^Utl^rS^ r J «ience to that principle most difficulties '"^^^^oe m I — — —— __^ __ ^' indemnity. (") I Cell Comm. 645 (7th edition). D 5 ■< 1 1 i 1 i!i!l|| mi Indemnity not always complete. THE LAWS OF INSURANCE. arising on insurance contracts must be settled {h). Except in insurance on life and against accident, which will be presently discussed, the insurer contracts to indemnify the assured for what he actually loses by the happening of the events upon which the insurer's liability is to arise ; and under no circumstances is the assured in theory entitled to make a profit of his loss (c). Were this not so, the two parties to the contract would not have a common interest in the preservation of the thing insured, and the contract would create a desire for the happening of the event insured against {d). And where in fact the assured has a prospect of profit, there and there only can arise the temptation to fraud, or such carelessness as will bring about the destruction of the thing insured. The contract is not, however, necessarily one of per- fect idemnity (c). No insurer now takes the risk of the destruction of what he insures by all perils what- soever. As a man of business, he must take a risk which he can estimate, for the two reasons that his capital 3 not unlimited, and that the reward he receives for his liability must be calculated with some reference to the prospect of his actually incurring the liability. And the insurer not only does not insure against all risks, but will not insure to an unlimited amount. The amount of insurance is controlled — I. By the value of the thing insured. If, however, the assured is respectable, his valuation of his goods is | usually taken ; and insurers, if the risk is not great, do not object to over-insure in order to earn a higher premium, since they know that they will only be liable for the actual loss. (b) Castellahi v. Frest-oi, ii Q. B. I). 380 at 386, per Brett, L.J (c) 8anie case. Vale also 52 L. .J. Q J}. 366, 49 L. T N S 2QI 31 W. K. 557. • • " {(l) Waruocl: v. Davis, 104 U. S. (14 Otto) 775. (e) Aitchkonj. Lohre, 4 App. Cas. 755, 49 L. j. Q. B. 123,41 L. T.l ^. H. 323, 28 AV. K. I. j't ill NATUKE OF CONTRACT. 2. By the general consideration of the insnrpv'« Further, the insurer wUI not insure every form of property nor every interest therein. The Tont^?^ • m .ts raception mercantile, and the only X n Trl" , .3 the commercial value of the thing Tnsurdt" S" nsurerw.ll not pay for a man's losseslt hT w„ nrt or compensate him for his feelin™, »t ti,« i • ^, heirloom, but only for his loss Tr as eSu^ money on ordinary b.ainess principles AnH many kinds of property, such'as d^entf of «Ue "ad .egotmble mstruments, which, while of great value inl erto sense, are so only as evidences of t tkand "« uch are not proper subject-matter of insuZ; o" no .-urable on the same calculations as other property sures, aoes not, except in a valued policy bind him '°"'-"'' self absoutely to pay the whole amount f the thta<; '"'"■ msured rs destroyed, and he is not estopped from demandmg proof of the actual loss caused bXe perils ured agamst His undertaking is only to'^indemn f' for loss actually suffered not exceediao the aZ „^ named in the policy. " amount In valued policies (which, though not unlawful are v , . , rare in the case of land insuran -s on propertvUAr '^""'""°'- vaue IS agreed, and such value is co'ncS^S al P« I»ses agamst the assured, and against the insure «« ess he impugns the good faith of the assuredTn' »;^'«™l«ation (,), or shows over-valuation to C to) -..*, V. ..„,„„,, ., w. H. 395, L. K 3 C. P. 303, 3? I-. .1. C. P. ,05. K< 1 ! i i ] ! I 1!^ 1 1 ^ i- I i THE LAWS OP INSURANCE. lil 1 Besnlts of principle of indemnity. SO great that knowledge thereof would have aft'ected the insurer's willingness to take the risk (A). And even where for convenience the value is agreed, proof of loss total or partial must be made to entitle the assured to recover on the contract. Thus it is said in a very early case, that where a policy is granted on the goods of " A," without account, he must prove that his goods were shipped and lost, but not the par- ticulars (i). The consequences of the principle of indemnity are briefly as follow : — 1. Only what has been actually lost need be made good, whether by payment or reinstatement, i.e., restora- tion of the thing damaged to its original condition, or construction of a new thing similar to it. No more than the amount of loss can be lawfully recovered, and if more is recovered the insurer can get it back again if he paid unawares (Z,). 2. If the thing insured is not totally destroyed, but remains wholly or in part in a deteriorated or damaged condition, the insured can only claim the value of 'the injury actually done, unless all that remains of the thing insured be surrendered to the insurer. If the assured does not agree to treat the thing as wholly lost to him, he cannot ask to have it wholly made good to him (/). This rule, commonly called the doctrine of , abandonment, is chiefly applied in marine insurance, but is equally applicable to all insurances on property (w). 3- If the as him to repair expense or at cede such wa} paid in full the such ways and He may not tg covered by him trust for an ins the insurance ( entitled to con persons primari not even in su( from liability (q right of action , is insured may as to prejudice 1 be ineffectual, ai the insured's nar tlie assured will granting such re] of tlie contract o: n/s^ llti'2^^r. R^ssJ ^- ^ 9 Q. B. 531, 43 l. j. q. b. 227, 30 L. T. ■ 'J^'his right of t\ 42*l'. l! N^n,V.,T r': k'^- "■ '"■ ''°' >''■ '" ^- '■ «■ B- 33, {I) Potter V. Itanldn, 6 H. L. C. ii8. {m) Castelhiin v. Preston, ii Q. B. D. i8o C2 L J O R ir,fi 45 L. J. Ex. 233, 33 L. T. K S. 655, 24 W. E. 287. in) Castellain v. Pr, {0} Ihid. (p) Commercial Uni 601. iq) Smidmore v. Auf ('•) Ihid. (s) Commercial Unit NATUEE OF CONTRACT. The only question arising under i> in io«^ • he can of it and whpn 1 ' ^° "'^^^ ^^^^ cede such ways and meani tn th^ ■ ^"^ paid in fall the amounH Ms Lf„ A"!"!? ^ '""« such ways and n.eans for the IZm^'ClZZ He may not take with both h«nr1= a , ^^' »-ed hy hi. in e.eess'Th- teta, it^hT^s t u St for an .nsurer who has paid him. And while U the insurance does not fully compensate h;,TT' entitled to control any action brought ag^; other' persons primarily responsible for the" less f^T he c n irom liability (q). An uninsured man can release « as tr^Tir-n: rr 'thtt:h r - -% be ineffectual, and the insurer wmh.t ""' """ t;;e insured's nanie. the JZ ll^^^ -; ^ the assured will be liable (as for a breach of t^S^', gmnting such release contrary to his dntv ' ™ ^ I of tlie contract of insurance (,) ^ ""'"« ™' I'i.i.ngh^nheinsu^^ which is termed subrogation, s..™,.„„.. W &.«,„■„ V. i.,«„, „ Q. B. a 380, 3,;, „., B„„.„ j^ J ^W C<.»™.„W r„,-™ ,. X,,,,,, , ch. App. 483, 485, 4, L. J. ,.,. (!•! S'f '"" '■ ■^"'"•*» «<"■%'-< «,., . N. «. ,v. Law .,5 , i &9 I ! t ! ISO so so i ! I :■• m THE LAWS OF INSURANCE. does not, however, apply in cases where insured property- is injured by acts for which the assured would have been in law responsible if the property had not been his own. ™™| Thus, where two ships, owned by the same man, Wm collide by the fault of one, the insurers of the ship not in fault have been held not to be entitled to make jflij any claim on the owner for the act ..' the other ship, though the insurers of cargo w ■ "we such claim , against the shipowner (t). The reason for this apparent variation from the rule already stated is twofold — 1. That insurers take the risk of the assured's negligence as part of the risk against which they insure (u). 2. That the assured in the case cited could have no action against himself for the injury done by his one ship to his other, and that there is in such a case no right to which the insurer could on payment succeed. Position Mi^il,62Z. I {k) Balestracci v. Fireman's Insurance Co., 34 Louisiana Annua! 844, NATUKE OF CONTRACT I I TJiis rule, of course, has its other side that- ,7 n is bound to do his best for th» . ' ' "^ '"^" Assured win iu nia uesD toi the insurer in ease of a fim n"tboar ho 13 not bound to do so at hi<, n^n ! iu ""''°'« «P«"«e insured amrnQf- h„ • , °^" °°^^' ^^e risk "f "ving*^ insured against iiaving accrued. This result is well ^''^'''^■ stated in an American case, Witkercll v. MarnejZ^ mice Company, 49 Maine. 200, 206. .o^r^o.of:;:^dr:rnito:rr;^ windows rather than pemit if fn k« flames, they ought Tto Ve tl To,:: TZ/flV" the oblfgation thu. i„>po3ed on th m r.oau i k' any n.att« whether the injury arises from 1 ."nt ot a imrror or other piece of furniture by the hi or reaches the pavement Tf f).^ ^ . , ^"^^ ^^ \ even though "the T.t s/ows thftTe " T'"""!'; not have suffered at all i left alone th» ^ """"" I still liable. °' ""* ^'"''''^ are Ithe^tulef „?• ''""""f " '" => '"'="" «'<=^nt limited by nsurer viU nf r "™™^' »>>'"bution, and the I blankets, however werp cmniif i ^ fy the polio^tatl af t rsuTL^f "^^"1 average, to which the insurer a^'intS'sllrr (/) Welles V. Boston Co., 21. Mass ^fi P- i ^ ^ ~~ \rhomimn v. J/o«/rea^ Co., 6 a C. (Q ij.J .j ''''^'■'"2) 182. But see ■w: so 5(3 i i {1: I r, 1 LS t? 12 Whether fire fiolioy on ohip table for avemge. Fire policy- land or sea. Contribution from neigh- bours. THE LAWS OF INSURANCE. which would have been endangered if tlie store had taken tire, and upon some of which the defendants had made insurance, were too remotely affected to be liable to contribution. There is no question, of course, as to the application of the principle in marine insurance. American and English (w) Courts have, however, differed as to whether a fire policy on a ship was a marine policy so as to be liable for av ige. But in En^^land it is very common to insert an average condition in a mercantile fire policy which avoids all question as to the law which might otherwise be doubtful, avertige not being in its inception a part of insurance law (/'.). In any case it woidd seem possible to draw a valid distinction between policies against risk of fire to part of a common adventure and risk of fire to property on j land whose owners have no interest ia common. It I was on this principle that, in Welles \. Boston Insur- ance Company, 23 Mass. 182, the Court declared that! a man who saved his house from fire at cost to him- self, and thereby prevented the spread of a fire to other parts of the city, could not seek contribution from adjoining owners, saying that it " would not do to take so wide a range in the application of the prin- ciple of contribution. All the buildings in the city may remotely have been protected, and it would be| impossible to draw the line." Fraudulent intent may be inferred from gross negli- gence (0), or from forbearance to use reasonable exer- tions and means at hand to put out a fire (p). (m) Imperial Marine Co. v. Fire Insurance Corporation, 4 C. P. D, 166, 48 L. J. C. P. 424, 40 L. T. N. S. 166, 27 W. K. 680 ; contra, Jltr] chants', tOc, Co. v. Associated Fireman's Co., 36 Am. Rep. 428. (w) Aitchison v. Lohre, 4 App. Cas. 755, 760, 49 L. .1. Q. B. 12; i 41 L. T. N. S. 323, 28 W. K. I. ' (o) Goodman v. Harvey, 4 A. & E. 870, 876. ip) Gove V. Farmers' Co., 48 New Hampshire 43. Buckins 4 I'eople's Inmrance Co., 31 N. H. 238, 248. NATURE OF CONTRACT. 13 1>i Life insurance nas been already mentioned as TMhe cont«ct perhaps an exception to the general principle thatf""' insurance implies indemnity. It would seem to follow -="0/' from the words of the Gambling Act (14 Geo III '"''''"''"y^ c. 48), that no insurance may lawfully be made which IS not in the nature of an indemnity for the loss of an interest. No man may insure against the loss of anything or the deatli of any person in which or in whom he has not an interest (q), nor for more than the value of that interest (r), nor recover on such insurance more than the interest which he has (.) Although the words of the statute seem intended to res trie insurance to indemnity, it has been decided that hfe insurance is not a contract of indemnity. Insurance on life falls into two divisions-insurance on ones own hfe and insurance on another's life. The two classes would seem, in theory at least, to be governed by different principles. To take, fir t in! surauce on another's lifp • A nr^^A;*. • * , I the chance o the debtor's dying without paying" hi™ «., as a collateral security for the debt «, like a I >°°fS='g'=es fire policy. In other words, he obtains a contract of mdemnity against the loss of ais deb by the death of the debtor before it ha, been paid. In such a case the debt is not a mere excuse for the pohcy ; but the securing of the debt or indemniiicat Ln l^:-r:,^:teT'"^'°'^'-'--»r'-'>^'--: law to be that only an interest at the time of '»••"•"■""•■ insurance and of the happening of the event in.,ured N^mst would suffice, i.e.. that the assured must have had something to lose when the risk was insured against 03 * •ZI fgffl^^j^ t» HBk so H^H a» H . SC3 Lfc . •< ^1^ ^- *• (>•) S. I f ^ o (0 Staclcpoole v. iSimonds, 2 Park Ins 012 ^Sti, Ti f i 1 ( ! n ■l . ■ _ 1 P^fiv^B H> '' 1 1 1 HP m J 14 lilffiiiliil I III Is life insurance indemnity ? THE LAWS OF INSURANCE. and have lost something by its occurrence. And to an ordinary reader of the Act this principle would seem to be there affirmed. Life policies do not usually state the reasons for which they are effected, nor the exact nature of the interest on which they are based. Nor do insurers usually raise the question of interest, unless they have some other grounds for disputing liability, and, in the absence of any suspicion of fraud, they are glad to insure a good life. But the practice of insurers is no more a criterion as to the policy or requirements of the law, than is the practice of paying debts of honour a proof that such debts could be sued on. Similar reasons guide in both cases. The law cannot stop people from paying what they are under no liability to pay, but a court of law would be entitled to demand proof of in- terest in an insurance policy, notwithstanding waiver by the insurers of such proof. If contemporanea cxpositio were applied to the Gambling Act, there is little or no doubt that the views of Lords Mansfield and EUenborough, two of our greatest mercantile lawyers, who understood fully the state of law, custom, and circumstances to meet which it was framed, would prevail on this subject. They both undoubtedly considered that insurance sur autn vie was a contract of indemnity; and in accordance with this view ic was decided, in Godsal v. Boldero, 9 East 72, that a creditor of Mr. Pitt, who had been paid by his executors, could not recover on his insur- j ance on Mr. Pitt's life. This view was long held correct, but was overruled in two cases which now control the law as to life insur- ance— -Da^ft^y V. The India and London Life Com2mny (,v) and Law v. Londo7h Indisputable Company {y). 3 wSf uV^' *'■ ^'" ^' ^^ ^' ^'' ^^^' '^ '^"''' '°'''*' -'^ ^'- '^'' '^-' ^f'^ ^4 L J. Cli. 196, I K & J. 223, I Jur. N. S. 179, 3 W. 1{. iq^, | 24 Li. 1 . 2uo. " : NATUKE or CONTiUCT. The first of these decisions is based (i) on a ,ni, „ „ ,„terpretatio„ of the Gambling Act, by the 3rd see o■^'- -•''* «f wh,clr (.) ,t is provided that no greater s, m shTbo -et "'"- .ecovered or received from the insurer than the amount or value of the interest of the assured in he hfe or event. In fire insurance, which is under t e same statute a man must have interest at the time of n.surance and of loss. But in life insurance the word are construed ma different sense altogether. Buti would seem to be clear that the same words in the .,me statute are not capable of two contrary construc- (2) On a confusion between a man's interest in his own and another's life. Admitting that a man canno be mdemnified for the loss of his own life, a creditor certamly can be so for the death of his d;btor „ ol vent, and that is what he insures for. Unless he wa, owe the debt he could not insure the d So Td usually msurance of the debtor is the last n>ethod a man would adopt for recovering his debt. (3) On a mistaken view as to the nature of a v,re- mmm. It ,s what a man will pay to protect himself f.™ a probably greater loss. A man has no insu - a e .nterest rn his premiums, and by law cannot ins "re liem. He has no more interest in them than in his equivalent, for by payment of the premium he 1ms bought nnmumty from the risk he wishes to cove, or the period for which he seeks insurance. rti*rf°" " ^"''^ Principii Both cases consider becai^e the sum is certain, and all will be payable but the very point to be decided is. Should the whde' ' insumnce money be payable at all events, or o."v so >««ch thereof as compensates for the loss ' ^ (~) Post, i\ 37. sso 139 SO SO ..-U i r I- ■li i6 Creditors policies. I « THE LAWS OF INSURANCE. In fire insurance the amount stated in the policy limits the liability of the insurer, but does not bind him to pay the whole sum on the happening of a fire, without any rights over the property insured ; but if tlie view taken in the two cases under consideration be right, a man who is owed a debt may make thereof an excuse for a speculation in the life of his debtor (a), for if the ordinary rules of insurance do not apply, there seems no reason why he should not " make an excuse of the statute " and take out a dozen policies each for the amount of his debt, and claim that, all being several contracts, no evidence can be adduced to show in any one case that he has over-insured his interest, since contribution is out of place unless the contract be one of indemnity. But the courts have shrunk from this consequence of these two decisions (b). The Liverpool poisoning case is a striking commentary on the possible abuse of the system of issuing creditors' policies. A woman having lent small sums of money, then in- sured the lives of her debtol-s for an amount exceediug the loans, and afterwards poisoned them to obtain the insurance-money (&). Where such policies are kept up at the debtor's expense, they are a security given by him, and as such not open to objection ; but where the creditor at his own expense insures the debtor, it is more econo- mical for the creditor that the debtor should die quickly, since it enables him to get his debt paid at less cost. It is, indeed, clear that insurance by a creditor is open to very serious objections as it now stands, for, instead of having something to lose by the death of his debtor, he may actually find himself in pocket thereby. Unlike a mortgagee, he has no security for his debt, and indeed insures to make up _ (a) See Warnochv. Davis. 104 U. S. (14 Otto) 775, and cases tlieie cited. (b) Jlehden v. West, 3 15. & S. 579, 32 \.. J. Q. B. 85, 7 I . T. N. S. 454, II W. K, 423, 9 Jiir. N. S. 747. (c) 7iVr/. V. I''lanna;/an, 15 Cox Cr. Ca. 411. NATURE OF CONTRACT. for the want of such security, not to find a means of preservmg the security which he has ; and W unce enables him either to get both his iebt aJh s msurance money, or to let off his debtor at fh! expense of his insurers. ^^ ^^^ In the Canadian Civil Code of Lower Canada ..h- u as to insurance almost whollv nnr.. I . ' ^^'"^ .^^visionof u..r A ■ '*""'-'s'^ wnoiiy corresponds with Enffli^sh t-^nadian law, and is a good summary thereof thp nhllr 7 P^' ^P^' *« creditors, and similar policie's are "'; by arricTe "^0^ -"^ "" sured m a life policy is the sum fixed in the policv except m the cases of insurance by creditors or in oth^; hke cases, in which the interest fs susceptX ? ela pecuniary measurement. In these cZT.h fixed is reduced to the actual interest." '""" As to policies on a man's own Mtr. i-^^ siderations arise, for no man T I ■ t'^^''''^ '°^^- ^^ '^^^ P^"" thP In., nf T, ?. ^^^ ^® indemnified {ovT'^?'^^^- me loss or his own life SupIi v^^T • demnity. effected . a p.ov.i„„ t Ja^t'otrdCj "^"^ Although an insurance -v a mnn nn i,- waa at «.t (.) held to be aUt^at t ^IZVt zrc thTi„:r tT *" "^ '- ^^^^ ^"'"° ^^e^t;:! »f a person therein na n d and ,n T 7 °" "'" '^'*^"' .*eas»„red pays the "1 e" " cerin'T^ir''"™' — telyonea^etin^th^,^^^^ 17 69 i8 Dofiultion of life iuaurauce per Jessel, M.R. Life insurance converse of an annuity. THE LAWS OF INSURANCE. the assurer a premium or annual sum until such death occurs ; or if the whole period of life be not insured, then until the expiration of tlie term during which the insurance is to continue. In the case of Dalhy v. Itidiaii and Loyidon Life Assurance Co. (/), a life assurance is thus defined : — " The contract commonly'' called life assurance is, when properly considered, a mere contract to pay a certain sum of money on the death of a person in con- sideration of the due payment of a certain annuity for his life, the amount of the annuity being calculated, in the first instance, according to the probable duration of his life, and when once fixed it is constant and invariable. The stipulated amount of the annuity is to be uniformly paid on one side, and tlie sum to be paid in the event of death is always (except where bonuses have been given by prosperous offices) the same as the other." The definition given by Sir George Jessel of the contract of life assurance is " a purchase of a reversionary sum in consideration of a present payment of money, or, as is generally the case, of the payment of an annuity during the life of the person insuring" {g). A policy of life insurance is not an insurance from year to year, but the premiums constitute an annuity, the whole of which is the consideration for the entire assurance for life. A life policy is the converse of an annuity. A man elects to pay the insurers an annuity on their guaranteeing his representatives a lump sum on his death. In the other case a lump sum is paid by him, he to receive an annuity for his life. In either case there is no relation between the annual premium and the risk of assurance for the year in which it is paid. (/) !S C. B. 387, 24 L. J. C. P. 2, 24 L. T. 182, 3 W. K. 1 16, 18 Jur, 1024. (U) Fryer v. Moreland, 3 Ch. D. 685. 8ee last page. NATUm OF CONTRACT. All agreement to comnensatp t mo„ t ■ ■ ■ accident might seem toZ , .„\ .,''"' '"J"™' by in„„„.^ It ,„„.t K„ ; " contract of indemnitv hut ^'"i «oci- it imist be remembered that in thi=, ,-,« „. • 17' ™'l'™'"^ P™1 therefore "the Lured eato?r,?\'" .'"™^^' »<> for although the eril re X !f Si ■ '"'''"»»'fi«d ! be alleviated by what mn„„ " ■?. ^''^ '"J-^ O"" »"» cannot allay or ImovT2 ""' r™"-^' "'^'^ »«ney cannot reall^ consurtra td t^' T """T payment contracted by the irsurTr, to\ f™'' ""= of accident is under %,»! \ ** "'"''= "' <»8« invariable sum! t ^Srscair' "' " ""^'■' ''^^^ .liiferent accidents con?d h^ t f """Pensation for reason alreadyten otV hTt btt"'^ '™"^''' '" '"^ do not admit^of a pS talS^l^^e rr"'" rs,;;:::"cZ;;T icrLrth^"^^"^^-'^-^ «on in case of Untrurari^nStivel^t^- »i::;t"d:;tt:annTt'rad""' "" "''''"''■ -''1~' accident in mitigLti n o £1 1' ^7"" T"^'"'^""'" which is that 1 mnn rv, "^°^^ge^ UO, the result of "egHgence, able profit ot^rara LIT b:?d™'" ^ "'»>*'- since he is not .nil Tti '^^ Jndicious insurance, . .'!l!'!:i^^^'^"'-^« killed by an accident, (/«) Aose V. Medical, d-c it r / tablet of several foil (JV^tinStllZ r^/V"^"."' P^ yptychum, a 'I. late Latin for an JconTor^ZmtlnZnT^^^^ 'C^^^^.'i'^' ^''•^> "««nn.rcial Mutual.. Journal. 228. "<'«'ara (U.S.) 318. js^ivMan v. i?eis ^ 13 W. K. 310. Fisher v. Liverpool Marine Co., L. 1{, o y. Is. 469. (w) Newman v. Belsten, Sol. Jour. 23 Feb. 1884, p. 301. It has beer insurance witli agreed and if the policy wJie intent of the p agreed upon, il sued upon (a). policy purporte the representati the application not being carrie statements of th was not liable a ments (b). If j be held to hav( conformity with case the policy the parol contrac there is a notice are not accurate! And an offer t after receipt or ac {x) Jtl'Farlane v. Ai 0/) ^Yeno8 V. IVidha )■ «. Soo, 16 W. R. 38 Jotter V. liankin, 6 H. (s) Christie v. No)H I Jiomter v. Trafalgar 1 : (a) Albion Co. V, i/i ^^'f^^V,jlJev. Times Fi, W Mouhr V. Amerii (1S87-91), 503. 1 Jc) lielief fire Co. 1 Jjdsten, siqjra. h' J'. J. Ch. 878, 9 Ha. 23 THE CONTUACT. action at law C^'"). And wh^.^. v 3>gned .nd sealed, but had never left tl,e oftice of he It has been held in Scotland that there may be , insurance without delivery nl „ „„i- ■. ^t ' inennwos a"reed and if thl T ^ \ ^^'"^ '^ *« '»»» »re ""tout policy, a reeo and it the premium has been paid fa) and if p ,• to pohcy when issued does not conforL to fte true -'»""' intent of the parties at the time when the insurance "s ""'""'• agreed upon ,t may be rectified or the trueTntrlc =ued upon (a). But in an American case where a We policy purported to have been issued on the faith of the representat bns and an a\An- ^""T^Oar Life, 27 Ueav. ^77 ^*°' •"''"^'^ 5I9, 1825. ^e^P^T Se^^f 3/(^^^%^?r <«^r^) -^' «7 (H. L ) , i Moulor V. American I !f 1 ' ^^"'' "'J'"" '49S. ' ' ^ " '^•''• ('887-91), S03. ^"''"'""^ ^-"^ ^"'"'m.fe Co., Fed. liep. Dig. U. S. \Mf^,ira °- '■ *'•""■• W ^' »• (4 Oil.) 574. A-„,„„,„, so so I '^ 24 THE LAWS OF INSURANCE. 1 policy even if the loss intervenes between the accept- ance and the usual time for issue (e). But it would appear that if the risk is changed before the premium is paid they will not be liable (/). The person to sue on the policy is the person in whom the interest appears. Ambiguous Therefore where a policy was by deed poll and the presumed to be Covenant to pay was ambiguous as to the person tvith intero^sted"" wlioui it was made, it was construed as being with the person in whom the interest appeared, and he was allowed to sue in his own name though he had not himself effected the policy ((/). The proper mode of obtaining the benefit of an agreement to insure would seem to be either to sue for a proper policy, or claim dtiJiagesfor breach of contract to grant one, or to seek relief on the footing of a proper policy having been issued. The latter course has been adopted in Canada and the United States (A). And in Company can't Canada the Supreme Court have held that an insurance plead want of , , , . , » i -. . , . seal. company could be restrained from pleading want ol a seal to a policy (i). This no doubt did substanLial justice, and attained the end wliich might have bei^n reached by a suit in equity for a proper policy ; but the law laid down is at least doubtful, and the members of the Court were not unanimous. Remedy for un performed ngroemeut to grant policy. Accepting polioy without noticing mistake. It is usual to print upon a policy a notice requiring the assured to inspect it immediately on receipt and return it for correction. But even if there be no sucli (e) Mildred v. Manpons, 8 App. Cus. 874. (/) Canninr/ v. Furquhar, 16 Q. 13. D. 727, 58 L. J. Q. B. 225, 34 W. R. 423, 2 Times L. W. 386. (g) Moss V. Leijal and General Life, 1 Victoria Law 315. /'jumla- land Marine \. Kearney, 16 Q. B. g2$. Hodson \. Observer Li, e Insur- rncc, 8 E & B. 40, 26 L. .1. Q. B. ^03, 29 L. T. 0. S. 278 3 .tur. N. S. 1 125, 5 W. R. 712. Jinan.^ v. Biqaotd, L, R. 4 Q. B. 622, 38 L. J. Q. B. 293, 20 L. T. N. S. 659, 17 W. R. 882. (/() Penh)/ V. Beacon Co., 7 Grant (U. C.) 130. Maclie v. Europtm Co , 21 L. T. N. S. 102, 17 W. R. 987. (/) London Life Jnaurance Co. v. Wriijht, 5 Canada (K. C.) 460. Where a poli terms of the agr on with the ag have not been b « insurer, or if co will not be ord not binding on repay the premii a luistake (0). (/.•) Wathins V. Ihih N. .s. 426, 31 w. r: ■. {1} Liverpool, Lono 23 Grant, 442, i Cana Patten, i Camp. 72, i! T. Cologun, 4 Taunt, 3- V. Miller, 4 T. R. 320! (m) Collett V. Mori lloi/al Exchanqe, i Ves 13 'Sim. 518, 7Jur. 591 V. Covlson, 8 Eq. 368. («) Fowler v. JScotti 4Jur. N. S. 1169, 7 M (0) L'oiclcr V. IScottis. THK CONTRACT. Jiotice, if a man does not read his policy l,o has only himself to blame, and, by not returning it if vvron- ho !i may waive all ri^^ht t., complain subsequently of°any mistakes contained in it (/:). A policy may of course be altered by consent of parties, whether the alteration consists in correcting an error or an omission, or in variation of the terms ottha contract. Ihit a material alteration of the policy bv Aif h , the assured without the consent of the insurer will be P"»'™ ' treated as a fraud, and avoid the contract (/). When on a proposal and agreement for an insurance Policy not a pohcy is drawn up by the insurance office in a form '^«««'-ding to differing from the terms of the agreement, and varies ^^""^"' the rights of the assured, the Court will look at the agreement and not at the policy (m). Where the mis- take cannot be rectified, it seems that the contract will be rescinded and a return of premiums ordered (n). Where a policy is not in accordance with the real When a mis- terms ot the agreement, but such terms thou-li a^reod t»kewiiinot on with the agent by the person seeking Insurance ^°"'^'- have not been by him, or at all, communicated t.; the msurer, or if communicated not adopted, rectification will not be ordered, but the policy will be declared not binding on the insurers, and they will have to repay the premiiims paid, as money paid to them under a uistake (o). 25 SO N 'tJ X;:^;^. ^';^}_ '° «• «• ^- ^^s, 5^ l. j. q, b. x.,,48 l.t. Jl) Liverpool, London, and Globe v. If./W, 21 Grant riT (M .r« 23 Grant, 442, i Canada, 604. ILll v Patren 8 FW^,,^ 7 "^ f^S. Patten, 1 Gan.p. 72, ,80.' Alrlie v ^/j£ .7 T.un Jf, f'^'i' ^• (»!) Collett V. Morrison, 9 Hare 162 21 L T VW s,h u h X^^fs^^'T' I Ves. Sr 3%. jC^ok^^ ^^ ,,^,J; f f^' .^^jf^'^f - ;'a;i;,VE';y8''- """''"■ ^''"''' ^ «• ^'^•■-°' B.u.eo ji4;i?: («) Fowler v. Hcotiish Equitalh; 28 L. J CIi "oi 7, T 'P ., 4 Jur. N. S. 1169, 7 W. R. 5. ' ^'^ ^- «'• '-H. 225, 32 J.. J. 119, (0) FoicUr V. ^Scottish Equitable, mipra. fmmm tap -< I ' I # i • I. ^^ THE LAWS OF INSL'KANCE. Subject to the power of proving that the policy does not embody the renl terms agreed upon, no mate- rial terms may be imported into a written contract of insurance which tiiu parties have not thought Ht to insert (j)). Companr"*'^'" ^-^ ^ ^^^^^^^ ^^ assurance be lost or destroyed, an indemnifled by ^ction will nevertheless lie to recover the insurance judgment. „ioney, and the order or judgment of the Court direct- ing the otHce to pay will be a sufficient indemnity against subsequent claims Qj). Premium — preliminary payment. Interim notes. Payment of a premium demanded on application for a policy does not give the applicant an absolute title to a policy. But if the risk is rejected, or a higher premium demanded and refused, the insurer must oHer to return the premium. Still, the mere fact that the agent retains the premium by arrangement with the applicant, pending an effort to get the insurers to reconsider their decision, will not amount to a failure to repay (?•). The interim protection notes given by tire insurance companies bear an analogy to the slips commonly used in cases of marine insurances preliminary to the issuing of policies (s). The slip contains the heads of the con- tract, and is itself a contract of insurance, but not a policy, and, in virtue of certain enactments, not enforce- able at law or in equity, but avaUable in evidence where material. The Underwriters at Lloyds have however for some years undertaken the business of insuring against fire (») ,('»^(f'onv IhnbroL 2 App Cas. 284, 298, 46 L. J. Q. B. 409, 36 L. 1 ^ fe. 382, 25 W. R. 499. Gibson v. dmall, 4 U. L. C. 3s?. (7) Qrocatt y.£orcl, 25 L. J. Ci>. 552, 2 Jur. N S. 4,6, 4 W. 1{ 426^ England v. IMegar, L. R. i Eq. 344, 35 L. J. Ch. 386,' 35 Beav! (r) Otterhein v. Iowa State Insurance Co., 57 Iowa 274 (.«) Qneaihisurunce Co y. Parsons 7 App. Cas. 96, 125, 51 L. J. J'.C. THE CONTHACT. ^ risks on land, and tlie "slip" has been held to consti- The .„p tute a binding policy of insurance, not subject to the ^ naphed condition of the tender of a policy within a reasonable tune {I). Tlie interim note contains a proposal to effect an r » . insurance on the companies' nsual^ernls aiid con "^^'• ditions and the interim insurance is made subject to those terms and conditions, and they ought to be read mto the interim note so far as they are lawful ; and the note forms a contract of insurance during the interval between the proposal and the final acceptance or refusal 01 the insurers {it). Interim receipts for the wliole or part of the i«..ri„ premium, and insnrmg the applicant for a month or """''"• mitil notice of rejection, are common in England but liave rarely been subjects of action {x). An insurance company are clearly entitled to make the msurance under an interim receipt subject to Z on zfons m the usual policy (y). lieferenoe the.^to the receipt wiU affect the applicant with notle toeo .), provided that he is permitted an opport ! iiity of learning what the conditions are. If the interim receipt be for so many days and th« ,l«l.cy contain a condition that the L/r^^a e m y , be terminated at any time within the period ori»inallf contracted for on ten days' notice, and'the reTaymen^ of a rateable proportion of the premium for the une" .red term, ten days' notice must be given to termTnate I tie interim insurance and tender of the unearned part (0 Thompmn v. Adums, 23 Q. B. D ^61 {II) QiieeicJ'mircvice Co. V. Parsons 7 Ann Poo r.c n, 45 L. T. N. S. 721 . ' ^ ^P^' ^"^- 96. 125, 51 L. J. p. c. (x) Maclie v. European rb 2r T T V « , ,„ ^ {;/) AVQueen v. PjJnu^, 29 U C fC P^' ,^-, '°"' ^ 7 W. K. 987. (-) Qveen Inmiravce Co. v. Parsom 7 Ann f (""JTO. a) sons, 7 App. Cas, 96, 124 sqq. ; vide 9a I ! to so *!fl M 'T4 If- u 28 THE LAWS OF JNSUKANCE. Transaction ainountiDg to re-insurance. |iij|jiri| Policy dated after Are. Re- insurance. of the premium made (a). So if a fire happens witliin the period of interim insurance, but after notice that a regular insurance will not be issued, the insurance company are bound for ten days after the notice given (&). But if the insurers give no notice of rejection, and do not issue a policy, it would seem that they will be taken to have elected to accept the proposal, and they will be liable thereon, unless, of course, it is stated that silence amounts to refusal to go on with the con- tract. Where an interim receipt was given on a form declaring that a policy would be issued in sixty days if approved, and the agent giving the receipt did not report the transaction, the insurers were held liable for his neglect and the absence of the policy — the receipt constituting a valid insurance (c). It is rar' for a case to arise of a policy against fire on land, lost or not lost. But in Giffard v. Queen Insurance . Company (d), the plaintiff insui'ed in the London and Liverpool Company from 2nd October 1865 to 2nd October 1866. Before the term ex- pired he received a notice from their sub-agent that the insurers would renew, and accordingly he paid the premium to him on their account. The general agent of the company declined to renew the policy, and paid the premium to the Queen Insurance Company (the defendants), who issued a policy, dnted i6th Oct. 1866, but insuring from 2nd Oct. 1866 to 2nd Oct. 186;, The premises were destroyed by fire on 13th October, before the policy was issued ; but the plaintill" did not know that he was insured by the defendants until he received the policy from the sub-agent, who also acted for the defendants. It was held that the transaction amounted to a rt insurance, and that the defendants in (a) Grant v. Reliance Mutual Fire Co., 44 U. C. (Q. B.), 220. yb) Ibid. (c) Patterson v. lloyal Jmurance Co.. 14 Grant (IJ. C.) 169. (d) I Hannay (New Bruns.) 432. CONSTKUCTION OF POLICY. 29 effect insured the property, " lost or not lost," in other words, " burnt or not burnt," from 2nd Oct. 1866 to "Bumtomot 2nd Oct. 1867. burnt." In certain businesses in this country it seems to be Open policy the practice to take out an open policy against all risks by sea and land, and to provide that the assured may declare thereon so soon as he learns that property at his risk of the class insured is in transit to him, and wliether such property is at the time lost or not. ' Firms which have to transmit valuable property or securities through the post thus insure them • and even when simultaneously advised of transmission and loss, they can still, under such a policy, declare their loss, provided only that they observe good faith in the transaction. Another class of policy is that termed a floating Floating policy. The amount of goods covered by such a policy ^""•'y- IS ascertainable at the moment of loss only, and to pro- tect the insurers, such a policy provides that 'the lia- bility of th3 insurers shall be only rateable. Thus if it be on a fluctuating amount of goods in a warehouse, and the amount there at the date of a fire exceed the amount of insurance, the owner will be his own msmer pro rata, and will not receive the whole of the insurance money. This kind of policy is adopted to prevent the assured from making his policy cover in effect a larger amount of goods than are fairly insurable at the premium paid (e). CONSTRUCTION OF POLICY. "The same rule of construction which applies to all Policy as a o^hei^istniments applies equally to a policy of in- SoX'-""^ — _ _ ^ — instruments. -< SO 00 1-^ a» tXf 1: (c) Vide post, cap. XI. 30 DifFei-ence between policies and other instru- ments. liiMii Strictiimjim not rule of construction. THE LAWS OF INSURANCE. surance, viz., that it is to be construed according to its sense and meaning as collected, in the first place, from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally in respect to the subject-matter, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the same words, or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. " The only difference between policies of assurance and other instruments in this respect is, that the greater part of the printed language of them, being invariable and uniform, has acquired from use and practice a known and definite meaning, and that the words superadded in writing (subject, indeed, always to be governed in point of construction by the language and terms with which they are accompanied) are en- titled, nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and sul-jects " (/). Lord Mansfield's view of the construction of policies was that "It is certain that in the construction of policies the strict urn Jus or apcv Juris is not to be laid hold of ; but they are to be construed largely for the benefit of trade and for the insured " (g). (/) liohertson v. French, 4 East 130, 135, per Lord Ellenborough. W) lellij V. Bonal Axckamje, i Burr. 341, 348. CONSTRUCTION OF POLICY. In the mercantile contract of insurance it is ahvav, ,- ■ • the custom to express the matual bargain in l„Z°'SSr conventional terms The assured is not meant to be bound to carry out his adventure in exact conformitv w,th the words rigidly construed and confined to whal IS absolutely necessary, but the general v™rds of tl^ pohcy are in ended to be construed so as to conform IfnLr (i;, '-^ "'""'^ -*"<• "^ P-ing the But liberality of construction can never iu<^(-ifv in t-. ,. (HffprPnpp f-n fV... ,.^„l » "evei JUSCUy in- Liberality of iflerence to the real purpose of a policy, or warrant ''T^'^^''''^ the recognition of an obligation which was not directly e-'^'^^' or by reasonable implication imposed by its terms when those terms are fairly interpreted accordin; to their natural and ordinary meaning (i), ^ The terms of a policy of life assurance, beino- the Pok language of the company, must be taken most strlnZ "-^Kl^n. agamst them (/.). Th.. view is in accord ^th °"^"^- f tr \ ^'''""?' 4 ''• ^- ^- 484, where To S St. Leonards says-" It [the policy] is of course pre- pared by the company, and if, therefore, there should be any ambiguity in it, it must, according to law be aken more strongly against the person who^>rep^ed it.'' And in another Scotch case the same view is thus Tr I xpressed-that IS the true meaning of my contZl^^^'oS!^' I I n t t T"r t°""^' contracting ;arty to'put upon It. no that which in my own favour I wrap up in I general phrase (/). vvxap up in 31 mi SCP I'ZJB^^^'^^^'^i''--'-''^-^^- 95 276. I S;; Z.!^sv^ '^Alt^i^-:^ g; 'S .!:€ bo sag S»3 I (0 life Assocn. AS v! 'Iw 1 CsV^'i ^°^- iosie,, 11 o. b. e.. ^^rd series), 351,371. H. ) i 1 • Z2 THE LAWS OF INSUKANCE. AVords of special meau- ioK. In Birrell v. Dryer (m), however, it was held that whether the underwriters are to be considered the " proferentes "' (within the meaning of the maxim " Verba fortius accipiuntur contra proferentem ") with regard to a condition in a policy of insurance depends upon the character and substance of the condition. This is the same rule of construction as is applied to guarantees (n), and generally to all instruments pre- pared by one party and tendered to the other (o). Where a life policy recited that it was on the " reserve dividend plan." and that if the premiums were paid for ten years, the company would pay to the assignee of the policy its equitable proportion of the " reserve dividend fund," and the only reserve dividend plan known was one by the Actuary of the company, it was adjudged thu,t the liability of the company must be ascertained by that plan (p). Interpretation When the words of a policy are susceptible of the different from interpretation given them by the assured, although in by*inrure"i?'^ fact intended otherwise by the insurer, the policy will be construed in favour of the assured (q). tracf'^^onTof ^ Contract by which a corporation undertakes, in suretyship or consideration of premiums paid, to indemnify against insurance, , ., iiii,- n , ■, • , " verba fortiu.i:'iosses irom bad debts, is not one of suretyship, but a **'• policy of insurance subject to the rule that ambiguities in the policy drawn up by the insurer, are to be re- solved against him {'). Courts look more to the policy thaii custom. The tendency of judicial decisions is to pay more regard to the policy and less to evidence of custom. The reason of this is that policies, especially fire and life, are drawn with more care and skill than formerly, and have been corrected in accordance with (7») 9 App. Cas. 345, 51 J.. T. 130, 21 Sc. L. it. 590. (») Hargrave v. iS'mee, 6 Wng. 244, per Tindal, C.J. (0) 31eyer v. Isaac, 6 M. & W. 605, 612, per Aldersnn, B. (p) FtiUer V. Metropolitan Life, it'c, 37 Fed. Kep. U. S. 163. (q) Wallace v. German American Jns Co., 41 Bed. Re|). U. iS. 742, (r) Tibbettsv. Mercantile Credit Oitarantee Co., 73 Fed. Rep. 95. CONSTRUCTION OF POLICY. policies 1 Tz't srr iot „ ^'^^ r" '"^ meiits, and there ar,. If mercantile docu- can .; oonstrnr ^h reCeTtoTeri:^ i r except iu floating policies bv who ."'^'^^^^^'^^ custom I« America the ten^de^Ti^IheltT "" ''"""■^■ Fo"cy. that may be underqfnn.i control in a sense more or less extensive ha, Jt ^""'T. ""Wgi-o.. hy judicial decisions, parol eWd In' l '"" '*"<''' °""°"'- to show whether tkey have ot "'7 ^ "''"""'''' practice between the as,url atd H ""^ "'^ "'"' and what, known and dS^ i^j^rt t)" T"^ ^"'■' .f proved will govern the construction (")! ' """'" A policy on his life was eiTeotpd hv . j ■ ■, Englishman, for the benefit of t •/ doauciled c„...„o.io. through the Englis b^rach o a^Mt "" '='"''''-• -"^^o, which carried on busines in NeV Yo t""' TT"' ™""'- decided that the noIiVv =„ f *' *"^ " ^"s «.eut of the pol cyX tsTb ""7'^*!,"' '' '^'"- - with th^ iaw^ Of tTf iti^^re^i^dr " is.atln:p;:iUirt"5if:^fs'r"' r-^"^- "— I ™, executed by the ins^tr^^ .r. ■"" ""^ P°"^J' """"""■ I W, and was tfantiSTth:' atrldtn^-" ^^" where the premiums wp,-„ „..j.f ^"'^'"' "> Missouri, Missouri contra g„:ere/tv''.™? '■"'" '° ^ •■' State (j). ="^«raed by the laws of th-. 3i rt^i SX3 I ',- 34 Words con- strued in popular sense. THE LAWS OF INSURANCE. If any doubt arises as to the meaning of a word the Courts will usually construe it in its popular and not in its philosophical or scientific sense, on the principle that the parties expressed themselves in the ordinary language of men of business and owners of property, who have insured or who are about to insure (a). For instance, fire will not be held to include ex- plosion, even where the explosion is due to ignition, nor gas held to include all that chemists would include under the word. Primary stress must be laid on the language of If that be clear no custom can be Oastom cannot contradict , i „ ^„i:„,t language of the policy. policy. admitted to contradict it, and no custom which is not a General custom of trade will be admitted (b). Latent ambignity question for jury. This applies to all contracts of insurance, as to other mercantile contrfi.;Ls. Even if the latter are in sho;t terms, unless there is dubiety or ambiguity in the con- tract, evidence of custom will not be received (c). Where there is a latent ambiguity in a policy, so that it becomes necessary to examine other documents and to have recourse to parol evidence, the question is one of fact, and therefore for the jury, and not simply one of construction for the Court (d). Explanation of Parol evidence may be adduced to explain, but not pohcy by cus- ^^ contradict, a written document, and in a commercial contract, mercantile custom will be. the dictionary whence to draw explanations (e). But Lord Hatherley. in the same case, said in effect that only the very (o) Stanley v. Western Insurance, per Kelly, C.B., 37 L. J, Ex. 73, L. R. 3 Ex. 71, 17 L. T. N. S. 513, 16 W. B. 369. (6) liobertaonv. Marjoribanks, 2 Stark, 576. Blackett v. Royal Ei change, 2 C. & J. 244, per Lyndhurst, C.B. (249). (c) Bowes V. Shand, 2 App. Cas. at 486, per Lord Gordon ; 46 L. 1 Q. B. s6i, 36 L. T. N. S. 857. (d) Hordern v. Commercial Union, 56 L. T. 240. (c) Bowes V. Shand, 2 App. Cas. 468; per Lord Cairns, 25 W.U, 730. CONSTUUCTION OF POLICY. 35 strongest evideuoe of custom could im„„„ natural meanins on -i cm,fv„„t ^ * * "">"- plain natural sense Id me w th" ''"Z ""^ ' general stock of hardwa^ w I, not ' " "'"^ "" '^ »nd if there be a coXn Ifal T' S^'P-^der, Po„„, .,„, powder, parol evidence XX .dm ^T f. «"'- ■S.tT.r Frties understood hardware to t„ , T '"'' """ "'«^ ''°""'" canisters (/). ^ '° ""''"'''* gunpowder iu firs"h?":t:cr-tLr ^"''Tlr/ '"^"^^^ ^«--' -^«""- ««toho„sehoMiinet/:rn::d^X"'(^; Jhe^stoc^in-trade of a haker does not mean hisB..„...„, I A policy obtained by fraud or h^ . u i. . high degree of good faifh r' niv!^ ^ u ''^'^ ^^ ^^' ^-"'^- L„^ n.o J 1 ?""" ^^^"^ required as between insnr^v "btaining Und assured, being only voidable, the party LaX ""*''• discovery accepts premiums and trea s ^it 7 1 IgOOd, it would seem thaf ha If ^^^'"^^ ^'^ AccepUuce of loQtnnnn.! * J . ^ "^ ^vo^^W thereafter Iip Pr«°»"'m after ■estopped from denyin" its vnl7^,>,, . ox«mtei oe discovering le allows the poLv" to bf ^' T ''^'-^'^""^ ^^'™"'- folder for value C^) ^ ^' "''^^^^^^ ^° ^ ^^'^^ /^^« (/') J/rao/iv. Hartford I'irfi i-, J' c /,^ t> . ' Pyal gxchamje, 2 C. & J. 24.' ^^ ^' • * • (Q- L- ) 437- See i?/«o/.'e« v. f^K^^t'-^- V. ..../«. J .,v,^;et.?. „a„ (N. Y.) 490, 3 N Y J (*) Bntkh Equitable v. C^. Jr n ,s t t nu Ph. 422, 17 W R cfii rJ 7 '.^ ^- ''• C'l- 132, ^14 20 L T rj/J- ■'■«'■ 3r;.f w.^s;*' -"""•'■"'' •'■ *»»' ■'■a': 2: •«5 Inn 09 II: ( I It s i 1— "i *M«a ^ to 1 ; B%» < i :a3» 5 f s» i ' •-< 1 1 I.: 36 THE TAWS OK INSURANCE. Courses open There are three courses open to the insurer oti from whom discovering that he has been indvced to grant the policy policy obtained throui^h fraud of the assured— by fraud. o 1. To refuse to receive further premiums, and repu- diate the contract after discovering the fraud. 2. To seek cancellation of the policy, offering at the same time to return all premiums paid (/). 3. If the policy has matured, by defending any ac tion for recovery of the insurance money {m). Fraud of Fraud in inducing a person to accept a policy will by termror' not render the insurers liable thereon, if by the terms policy no action f ^^^ policv the action is not maintainable {n). To maiutaiuable. r J , , , hold Otherwise would be to permit recovery on a contract other than that made (0). The only remedy is to repudiate the contrr .t and seek rescission and aturn of premium. If the insured had a right to rescind, and acted on the contract, he cannot subsequently rescind {p). If the insurers have sought to cancel a policy on the grounds of fraud in the application, not going to the interest of the assured, and have failed, they will not be stopped by the former judgment from pleading to an action on the policy that the assured had no interest in the life on which the policy was granted (j). Insurance on an illegal undertaking is void. Thi^ lasurers uot stopped from pleading want of insurable interest by reason of failure in former action to cancel policy for fraud. Illegal insurance. (/) Prhce of Wales Assurance Co. v. Pal'>\-r,2S Beav.6os. Lomk Assurance v. 'Mansel, 1 1 Ch. D. 363, 372, supra. British Equitahk v G. W. li., vide supra, note (t). Im) London and Provincial Marine v. 6'eymour, 17 Eq. 85, 43 lul Ch. 120, 29 L. T. N. S. 641, 22 W. 11. 201. ikifmour v. Loiidon aM Provincial, 42 L. J. O. P. iii note, 27 L. T. N. S. 417. (n) Tebbetts v. Hamilton Mutual Fire, 8$ Mass. (3 Allen) 569. {0) Fowler v. Scottish Equitable, 28 L. J. Ch. 525, 32 L. T. 110 7 W. R. 5, 4 Jur. N. S. 1 169. [p) Lloyd V. Union Ins. Co., 2 Pugsley (New Bruns.) 498. See Ckrki V. Dickson, E. B. & E. 148, 33 L. T. 136, 7 W. R. 443- ,, ,, (7) Ferguson v. Massachusetts M. d- D. Co., 22 Hun. (N. Y.) 320. ™ CONSTRUCTION OF POLICY. 37 ■^ well understood in marine insurance (r). Few cases could be suggested of land insurance on buildings used for an illegal purpose in this country. But in America caf,cs are common. Thus insurance on spirits, and casks containing them, in a State where an anti-liquor law was in force, has been held void (s), and also one on ' an unlicensed billiard and drinking saloon (t). But where the policy was on the stock of a chemist who had liquor unknown to the insurers for illegal sale, the Court held that there was nothing to show the insurers that the object of the contract was illegal (?/) The test question there is, whether the violation of Test whether law IS the direct purpose of the contract or purelv "'^^^f^'^y .ollateral to and independent of it (x). But it would "" "" ^"'^• seem more in accordance with the policy of the law to hold that no one should be allowed to receive indemnity in respect of property used for an unlawful purpose, if that use continues down to the date of the loss. (r) Cunard v. Ili/de, 2 El. & El. /. (.v) Kelly V. Home Jus. Co., 97 Mass. 288. ,/) Johnson v. Union Mutual Fire Co., 127 Mass «i: V. t^fT^^T'"'" ^'•^' 3« ^- «ep. 6,,'KNiaoara Fire (x)Boardman v. Merrimack Ins. Co., 62 Mass. (8 Gush.) ;S; Hinckley v. Germama Ftre Co., 140 Mass. 38, 54 Am. I^p. 445. ^ "^ CO r- li^HIM i J feo ■ so ; :>»•:: SO \ ( 38 ) Any oue u-ith interest cau iusure. Infants. Husband aud wife. CIlAFrER II IXSLUAljLE INTEREST. Anv person may insure, provided that he has an insurable interest (hereinafter defined) in the life oi property to be insured. It is .suirL;.in., .. said that minors cannot enter into contracts of insurance. J'jiit there seems no reason why, if insurers are willing tn enter into a contract of insurance with an infant, hv should not be able to contract with them in the same manner as he might enter into other contracts Avhicli are for his benefit : the rule being that a contract by an infant which is voidable only by him and nut absolutely void is binding upon the other contractint; party until avoided. The privilege of avoidance is that of the infant only, and not that of the other party with whom he contracts («). But if an infant, after having paid the premium and had the benefit of the insurance for a time, were to repudiate the contract, it would seem that having had the consideration in part he could not upon repudiation recover the premium paid by him (h). A married woman may insure, and is presumed to have an insurable interest in, the life of her hus- band (c). But the husband is not presumed to have such an interest in the life of his wife (d), except, perhaps, in Scotland (e) and America (/). (a) Leake Contracts, 552. (b) Holmen v. Bbgg, S Tamil. 50S. Ex parte T(nilor, 8 D. M. &G. 254, 26 L. J. Bkcy. 35. (c) Heed v. Uoyal Krchanqe, 2 Peake (Add. Gas.) 70. (rf) Halfonl V. Kyimv, 10 B. & 0. 725. (e) Wight v. Browv, u Court Sess. Ca. (2nd series) 459, and see 16 & 17 Vict. c. 34, s, 54. (/) Currier v. Continental, &c., Co., 52 Aui. Rep. 134. INSURABLE INTEItEST. By the Married Women's Property Acts, [8;o (g) and 1882 (/i), a married woman may insuro her own or her Jiusband's life for her separate use ; and a pohcy effected by a married man on his own life and expressed npon the face of it to be for the benefit of his wife or of his wite and children, or any of them ' shall enure and be d(X'med a trust for tlie benefit of his wife for her separate use, and of his children or any of them, according to the interest so expressed a-d shall not, so long as any object of the trust remains, be subject to the control of the husband or lus creditors, or form part of his estate ; and a trustee thereof may be appointed by p judge of the Chancerv Division of the Higli Court, or by the judge of the County Court within the jurisdiction of which the insurance office is situate. If it shall be proved that the policy was eflected and premiums paid by the Imsband with intent to defraud his creditors, they shall be entitled to receive out of the sum secured an amount equal to the premiums so paid (i). The existence of an insurable interest as the basis of Gambling Aot a contract of msurance is made necessary by the statute called the Gambling Act (k), which enacts as follows : — Sec. 2. Whereas it hath been found by experience, that the making insurances on lives, and other events wherein the assured shall have no interest, hath intro- duced a mischievous kind of gambling, be it enacted that from and after the passing of this Act no insurance shall be made by any person or persons, bodies politic or corporate, on the life or lives of my person or persons. >a' oil any other event or eveius whatsoever, wherein 39 i I '\k &o 2U" to (?) 33 & 34 Vict. c. 93, 8. 10. (A) 45 '^46 Vict. c. 75,8. II. (t) Ifolt V. iJverall, L. H. 2 Ch 34 L. T. N. S. 599, 24 W. K. 47 (ft; 450^46 Vict. c. 73, 8. II. M^'r ^f\y-^"'^^'i' ^li- 2 Ch. D. (C. A.) 266. 45 L. J. CL. 433 aL. V. N. S. 599, 24 W. K. 47,. Re Mdlor'a PolCc, Trusts L it 7 Ch I». 200, 47 h. J. Cb. 247, 26 W R. 309. -^ • "• (fr) 14 Geo. III. c. 48 (A.n. 1774). -' ^^^H 1 III i ^ 40 THE LAWS OK INSUKANCK. the person or persons for whose use, benefit, or on wliose account such policies shall be made, shall have no interest, or by way of gaming and wagering ; and that every assurance made contrary to the true intetit and meaning hereof, shall be null and void to all intents and purposes whatsoever. i Sec. 3. And be it further enacted, that in all cawcs where the insured hath interest in such life or lives, event or events, no greater sum shall be recovered or received from the insurer or insurers than the amount or value of the interest o* the insured in such life or lives, event or events. MOeo iii.c. This statute was never in force in America, ])Ut 40, in America. , , , lias been there interpreted as declaratory only of the common law (/) ; and this view is supported by English cases (m), at any rate so far as concerns fire insurance. Iral*nd. What IB an ioaurable interest, per Lord El It, per Bldoii. In Ireland the (Jambling Act applies to policies executed after ist Nov. 1866 (n). What will be an insurable interest within the statute is not easy to define. Lord Eldon said (0), " Since the 19 Geo. II. (p) it is clear that the assured must Lctv. an interest, whatever we understand by that term. In order to distinguish the intermediate thing between a strict right or a right derived under a contract and a mere expectation or hope which has been termed an insurable interest, it has been said in many cases to be that which amounts to a moral certainty. I have in vain, however, endeavoured to find a fit definition for that which is between a certainty and an expecta- (Q Jiuse V. Mutual Benefit Life Co., 23 N. Y. 516. (m) LytKh v. Ualzell, 4 Bro. P. C. 431. Hadltrs Co. v. Backoch, 2 Atkyns 554, i Wils. 10. (n) 29 & 30 Vict. c. 42. (o) I^cena v. Crmoford, 2 N. R, 269, 321, 1 Taunt. 325. (p) 19 Geo. II. c. 37, relates to marine insurance. 1-^ I INSIJRAFJLE INTEREST. tion, nor am I able to point out wl.at is an interest unless It bo a right in the property or a right derivable out some contract about the property insured, which n. either case may be lost upon some contingency alkctmg the possession or enjoyment of the party Kxpcctation, though founded upon the highest proba- bility, IS not interest, and it is equally not interest whatever might have been the chances in favour of the expectation." His lordship went on to sav " If moral certainty be a ground for insurable interest there are hundreds, perhaps thousands, who would be en.tled to insure. First the dock company, then the -iockmasters, then the warehouse-keeper, then the porter, then every other person who to a moral cer- tninty would Have anything to do with the property and of course get something by it. Suppose A. to be possessed of a ship limited to B.. in case A. dies without issue ; that A. has twenty children, the eldest of whom IS twenty years of age (!), it is a moral certainty that L. will never come into possession, yet this is a clear interest On the other hand, suppose the case of the heir-at-law of a man who has an estate worth ;{:2o ooo I ^ year and is ninety years of age: upon his .iJuth- bed intestate and incapable, from incurable lunacy of making a will, there is no man who will deny that uch heir-at-law has a moral certainty of succeeding to the estate, yet the law will not allow that he has any interest or anything more than a mere expecta- "Considering," in the words of the same learned dge the caution with which the Legislature has provided against gambling by insurances upon fancifu mntal ^ntercst, such as an expectation or an anxiety should be made the ground of a policy." ^' Lord Blackburn said, " I know no better definition De« v . of an interest in an event than that by LawCe '^te^S.^/ ^•. that If the event happens, the parfy .T^aTnK^'*" 41 «| I f 1 1 / 1 1 42 THE LAWS OF INSURANCE. Not necessary to state exact interest iu policy. Re-insurance. Own life. an advantage ; if it is frustraUjd, he will suffer a loss " (q). It is not necessary in a policy of insurance to state the precise nature of the interest, and whether the property be absolute, or special. A consignor, a con- signee, a prize agent (as such), may all insure ; but they are not bound to specify what the interest is (/■) in the absence of special stipulation. Any one who by contract is liable to pay any money in case of the loss of anything has an insurable interest in that thing. This includes insurers. They have an interest in the subject-matter of a policy which will support a re-insurance, which is now in every case lawful by English law (s). As a general principle tlie Courts will lean in favour of an insurable interest if possible without assuming facts which do not exist, or stretching the law beyond its proper limits (0- In his own lite a person's insurable interest is considered to be suflicient to entitle him to recover whatever sum he may have insured it for, and this is so if the insurance is for a portion of his life only («), And there is nothing to prevent a person insuring his own life for his own benefit as often as he pleases, even though when insuring he ii'tends to assign to another person ; but if nh initio the insurance is intended for the benefit of another person only, and that fact is concealed, the case is within the provision {n) W'dmii V. Jonen, L. II. 2 Ex. 150, per lilackbiirn, J.. 36 L, .1. Ex. 7S, 15 L. T. N. S. 669, 15 W. R. 435. yr) Crowkn v. Cohen, 3 i5. & Ad. 478, i L. J. K. IJ. 15S (1832). (s) 19 Geo. II. 0. 37, s. 4, forbidding re-assurance, is repealed. Tin- statute now in force on tliis subject is 30 & 31 Vict. e. 23. The Anieri can law is to be fou:ui in Nev: I'urk IJoia rij Fire v. S'tw i'oi'k Fin\ 17 Wendell (N. Y.) 359. (t) Stock V. inylix, 12 Q, B. 1). 564, 10 App. ('as. 263. (tt) Wainwritjht v. jilcnd, I Mood. .V Hi-I.. 481, I M. & W. j:, 5 li. J. Ex. 147". t not INSURABLE INTEREST, of 14 Geo. III. c. 48, which requires that the name of the person to be benefited should be inserted in the pohcy (,/;). The law will not allow the provisions of the statute to be evaded by an insurance being nominally Non.inaUyow effected by a person on his own life, but really d '''^^^^^^^J another person who pays the premiums, and to whom ""''"• the pohcy IS assigned. The mere circumstance, how- ever that some other party paid the premiums would v.yr...t of not per se be sufhcient evidence that the insurance was ?--'-«- not or the benefit of the person in whose name it was eSr enected (y). whose policy is. A beneficiary named in a life policy has no such Change of vested interest as to prevent the substitution of another '"•'T««"^^y beneficiary , and when a person effects an insurance on >^'-Se Ins own life, designating another as payee, the latter "'""' IZ^K^" ''' '-'-' '-''''''' ^^^^-^^ - --able The horn Me assignee, whether for valuable coiisidera- A«.„,ee of tion or not, of a person who has insured his own life has p°''^'- as ful a right to the policy-money as his assignor would ave had without such assignee having any interest in the life of the assignor beyond the assignment itself (a). A parent has not by ^.Ttue of his lelationship only Parent in an msurable interest in the life of a child (ft) AnJ^^^'sIL where a father effected an insurance for his own bene- fit, but in the name and on the life of his son, in which 45 70. Vezina v. New York IJfe 6 r^uaZiH c\ ^"' / /'" '*• ilutml life, 20 Blatcli. (U 8 Ug^ ^ ' ^°- ^'''"'tronf, v. {zj Aujersoll v. Knii^hts of Oolden liule, 47 Fed Reo 27, • If 1 V. United States, iCx 68 Vi',i I?,.., s-,^ V ^' • r; P" ^'2 Mohmson V. Barr, 68 Fed. Ro; 873 ' ^ ' ^"'«^'««» Employers' LiahiUt,, ^Asl^ley V. Ashley, 3 «i.u. ,49. Mutual Life Co. v. Alle,,, 5a An. (h) llulford V. Kymer, 10 B & (' to a etween po)-! wager .s this : a policy is, properly speaking, a contac to "'"' "**"• mdemmfy the .nsured i„ respect of so.oe Uerest wh oh A wager in the form of a policy unon th. c. * person i, a wagering policy within ,4 Geo 11 c J ""*""""• or a contract in the form of a policy does not co^e to be a pohcy because the subject-matter of the iosnTaLa IS not exposed to peril (0). '"ourance And where a son insured the life of l>i« i„tu which he had no insurable interest L^L^^t^L'd" --'"^ tha hewasacfng as his father's agent, and tie son """ ' Fid the premmms for some years, and the fathe who at first had no knowledge of the insurance toZl aware of ,t, and gave notice to d,e company that he ejected to .ts continuance, it was held that the p li y was a wagenng policy, and therefore the son could Z recover the premiums (p). ""' A life policy upon the tontine principle is not void T„„,- as a gaming contract (3). '" °°"°''- A man applied to the local inont nt . • -pany for insurance ont'oriL"' Hi s'"p= V'- P^S «rs f nd Ihe' "" ' ^"^ ""' P"^ f°^ "• » <^ 'h-d " """ """ iZnU- """""""^ "'"' ^^ '"^ "»»« filled into " blank assignment which had been left with the agenJ icy. ('») Ji'pyer y. Edie, 2 Park Ins. (8tb e.l. ) 9 14. ^(.)^r../ .. Uef.,e Fnen4 ^iety, 54 i-. T. 644; . Ti„.H (?) .Vmo«. V. .V«,. Fo,^. /,,yj,, 3^ ^^^ ^^_ ^ ^ ^^^ D aop i bo 50 THE LAWS OF INSURANCE. Different kinds of interest need not be specified. Special or qualified interest sufScient. by the original applicant, and the majority of the Supreme Court of Canada held that this was not a wager policy (r). A person who has different kinds of interest in pro- perty may cover them all by one insurance without stating in the policy the number or nature of the in- terests (s). But the subject-matter of the insurance must be correctly described (t). An insurable interest in mercantile language does not necessarily import an absolute right of property in the thing insured. A special or qualified interest is equally tlie subject of insurpnce (it). Possession of Property without possession will constitute insurable suS'cJ.*^ ^'" interest (x), and a person in possession as the apparent or presumptive ov/ner has such an interest (y). Tortious Disseizor. In America a tortious disseizor ha an insurable interest (z). '^en held to have Goods sold but not delivered. Property in goods pur- chased remaining in vendor. Even where a policy is " on goods sold but not delivered," cases may arise in which the assured is not entitled to recover ; for if the legal title has vested in the vendee, the goods are in law delivered even if not removed (a) ; but if the words " not removed " are in the policy, the insurers are liable (b). A person who bargains for, and takes into his pos- sesion, an article of personal property on a liiriDi; (r) Vezina v. New York Life, 6 Canada (S. C.) 30. (s) Carrntkers v. Sheddon, 6 Taunt. 14. (0 Crowle.il V. Cohen, 3 B. & Ad. 478, i L. J. N. S. K. B. 158. (u) De Forrestx. Fulton Fire, i Hall (N. Y. Sup. Ct.) 94, 115, wLict examines the cases very fully, and states their effect well. (x) Joyce V. Swonn, 17 C. 13. N. S. 84, 104. (ij) Marks v. Hamilton, 7 Ex. 323, 21 L. J. Ex. IC9, 18 L. T. 260, 16 Jur. 152. Limiley v. Queen Ins. Co., i Han. (New Bruns.) 280. (z) Mayor of New York v. Brooklyn Fire, t&c, Co., 41 Barb. (N. \ 231. Sweeney v. Fravliin Co., 20 Penn. 337. («) Locklturtv. Cooper, 42 Am. Rep. 514. (b) Warivtj v. Tmlemnlty Fire Insurance Co., 45 N. Y. 606, 6 Am, Ilep. 146. 51 INSURABLE INTEREST. agreement, one of the terms of which agreement is that th« property shall remain with the feller unt 1 te purchase-money be paid, has an insurable interest^ the property, though the money is not fully paid (!) wiong and owing to an nnskilful survey can recover on '"■'*"'• '«""• hi» policy. If he has insured land JUh [d). afte" atureTl'df 1 M ^""""^ *"' P""™^ cover ,»..„,...a alter acqu red goods which have been substituted for «""■"• -nose origmally insured («). And the interest o,, the subject-matters insured need not be continue, si, e . ..■ ■. absence of continuity only means absence of risW/ &-° ' ^J /• unnecessary. Although risk and property generally go tocrether (h) they are not necessarily associated • ind fl,. i V ^' ^'^i^" ^'^hout will suffice to sustain the ins-rrani tj^^"^^^^ such that its happening .night bring upon t^ L^td a pecuniary loss, but it is sufficient that it might bdn" a s „ ^s and by no means necessary that it shouM cet^nly rSn.y of have that consequence wer*. it to happen (i). ^'''^ As before mentioned, an insurable interest must be r . «.ethnjgmore than mere anxiety regarding the safety J---^^^^^ 2; mg msured, or hope of profit or alvantag h' relatioa thereto ; it need not amount to property in the S ti.oJI'v'^SSS^^^^r^'^T ^■' 74 Maine 537. K.'. B.) 148. * '^"'^ Lancashire Aaaurame Co., 26 U. V. u, s^T; r "■P'T"'' 2 Han. (New ] runs ) 200 I/O Anderson v. Morice L R in (" V' \ \^ 44 L. J. <•. p. ,0, 34,, ^' L T V S fini' ** f '9. per Blackburn, J., .4 .In, 30. ' -^4'' 31 i^. i. .N. S. 605, 32 do. 355, 23 W. R. 180, ^3 i '. ^'n: ^ ^S^;^ ^^%P- ^-•^' O'Hagan. 46 L. J. C. P. „, 09 fao so 52 stockholders no insurable interest in corporate property. General partner may recover wLoto insurance. THE LAWS OV INSUJtANCK. thing insured, for if through special circumstances the property has not passed to the assured, yet if he has any beneficial right which is of a pecuniary value in tlie subject-matter of the insurance, or if it be at his risk, he has an interest which he may validly in.sure (k). Nevertheless, the stockholders in a corporation have no insurable interest in the property of the corporation (/). But if property belonging to a limited partnership, in which there are a general and a special partner, i insured in the name of the general partner, which is t! name used by the partnership, such general partner is entitled to recover the full amount of the loss, and not merely the value of his interest in the property (m). Partner And whcrc onc of two members of a partnership, by the capitai^i'is the terms of which the capital was to have been con- iXres't'in life tributcd in equal proportions, has supplied all of it, lie of partner. has an insurable interest in the life of his partner (//). Expectancy. Perfect legnl interest not necessary. In the case of an agreement to sell an expectancy under a will for so much money, and to repay the purchase-money if the expectation was not realized, the insured would have no more interest in the life or deatli of the person from whom the expectation arose than was created by the agreement to sell ; but it has been held that he would have an insurable interest (o). An insurable interest does not mean a perfect legal interest. If it did, there are some buildings on which 't would be difficult for any one as owner to effect a valid insuran-^*^. In the case below cited (p) plaintiff had contracted to ^mrchase the property insured, and had (k) Joyce v.iSioann, 17 C. B. N. S. 84. Colonial Ins. Co. of Xeir Zealand v. Adelaide, tC'c, Co., 56 L. T, 173. {I) liigga v. Commercial Union Co., 51 N. Y. (Sup. Ct.) 467. (m) Clement v. British American Co., 141 Mass. 298, («) Con7iecticut Mutual Life Inx. Co. v. Lucks, Fed. Rep. Dig. (18S; 1891) 502. (0) (Jool.' V. Field, IS Q. 15. 460, 19 I.. J. Q. V>. 441, 16 L. T. U. S, :. 14 Jur. 951. ip) Millitjan V. L'ljuitahle, tOc, Co., 16 U. < '. (Q. H.) 314. 1N8UHAULE INTEREST. failed in making his payment punctually, but was pro- ceeding in equity lo compel performance by {ho vendor and it was held that he had an insurable interest.' There must be a valid subsisting contract capable of beinf,' enforced betv .><■» the parties themselves in order to constitute an in uible interest or I'igiit of action igainst the insurer. The contract, however, need not l- such as to pass interest iu the property m the thing insurod, uor nued there be ''"''P'"'"'^ su.h a transmutation of posses on as to create a lien ""der parol ni the legal te. l.nical sense of that word. It is sufh- Srring cient if the relationshi]) between the parties is such as "'i'"'*^'« ''"o"- to constitute an actual equitable intere«^t in the thing insured, and such an equitable interesi will constitute an insurable interest. In a case decided in t lic .Supreme "•urt of Canada (q), (J. made advances to B. upon a vessel then in course of construct u.n. upon the faith of a verbal agreement with \). that after the vesse^ should be launched slie should be placed in his Iiands for sale, and that out of the proceeds the advances so made should be paid. When the vessel was well advanced, C. disclosed the facts and nature of his interest to the agent of the insurance company, and the company issued a policy of insurance against loss by hre to C. The vessel was still unfinished and in B.V posse.ssion when she was burned. It was held on these facts that C.'s interest was an equit; ' le interest, which was msurable, and therefore C. was entitled to re- cover (r). (Jliambre, J. (whose views were ulti- mately adopted by tlie House of Lords), said in hccem' V. Omtvford, 3 B. & P. p. 104 , • I am not'dis- posed to question the authorities in goiu'iai ; on the con- trary, there appears to me to have been great propriety m establishing the contract of insurance whenever the interest declared upon was, in the common understanding 53 iNwZc«;a«,/ Co., 10 Victoria I.. J.'. IU. ""• *'■/* ( i*\ lit I.J '^' ''WIS I \ {r} Ibid. sua M IMAGE EVALUATION TEST TARGET (MT-3) m /y A '/., %s 1.0 I.I 1.25 ■^ !■■ IIIII22 '^ ^& 1110 1.8 U 1 1.6 :^ ^ ^ "^C J^ Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 972-4503 4 54 Quantam of interest. THE LAWS OF INSURANCE. of mankind, a real interest in or arising out of the thing insured, or so connected with it as to depend on the safety of the thing insured, and the risk insured against, without much regard to technical distinctions respecting property, still, however, excluding mere speculation or expectation, and interests created not otherwise than by gaming " (s). The statute 19 Geo. II. c. 37, requires that the policy shall not be a gaming policy (f). The question upon which the validity of the contract usually depends is not the exact quantum of the interest of the assured at the time the contract was entered into, but did the defendants mean to game ? or was not there a loss against which they might indemnify themselves by a policy of insurance — not a certain, but a possible loss ? The case below cited was one in which the Court of Admiralty might have decreed the assured to pay damages and costs, and that was held suffi- cient to give an insurable interest {u). "Full interest Where a policy contained the words "full interest admitted. . •"• '' admitted " it was held void under section i of 1 9 Geo. II. c. 37, which forbids insurances " without further proof of interest than the policy " {jc). Whoever has an interest which the law will recognize in the preservation of a thing, or the con- tinuance of a life, may insure that thing or that life {y). Any one The insurance of buildings may be effected by any interested i.u . i i buildings may One interested therem, and he can recover to the extent insure. ^j ^^^^ injury to his interest. Fee simple. The owner of the fee simple may of course insure, (a) Ebsworth v. Alliance Marine Insurance Co., L. R. 8 C. P. 596, 619, 29 L. T. N. S. 479. (t) Piuje V. Fry, 2 B. & P. al ;>. 243, per Chambre, J. {u) Boehm v. Bell, 8 T. R. 162, per Lawrence, J. («) Berrl'Jge v. TJie Man on Insuramte Co 18 Q B. D. 346. \y) Dalloz, 1868, pt. i, 388. Branfoi-d v. Saunders, 25 \V. R. 650. INS' {ABLE INTEREST. 55 So own possessing as he does the largest possible interest ou may a life, a yearly, or even a weekly tenant insure in Yearly &c vutue of his interest in the property, and recover the **"'"'''• value of such interest. If in any of these cases of limited ownership an Assured can insurance were effected under which the limited owner ™f°7'y recovered the full value of the property, he could not i^^^^^^ it seems, re«^^ain such value for his own use, because the contract of fire insurance, like that of marine insurance, 13 one of indemnity. In Gastellain v. Preston (z), Boweni L.J., said, " It is an illusion to suppose that the assured can in any case recover more than his loss. We must look at the ordinary business rules. It is well known, of course, that a person with a limited interest may insure, and recover the whole value of the thing insured, but then his policy must be apt for the purpose, and he must have intended to so insure {a). Again, a person may insure for himself, or for himself and others, as in the case of carriers and wharfingers, or to take the case of a mortgagee, he is entitled to insure for other parties ; but if he only insures his own mterest, he can only hold the damage to his own interest. That principle applies here. It was con- tended that a tenant from year to year may always recover the full value of the premises insured ; but, although that contention would appear to be supported by the language of Lord Justice James in liayner v. Preston, I cannot assent to it. It may be that the insurance companies do not as a rule take the trouble to ascertain the exact interest of the assured because in most cases the insurance is for the benefit of all concerned; but if a case were to occur in which a yearly or a weekly tenant were to insure, meaning only to cover his own interest, he could not recover ^(z) II Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R. (a) Johnson^ New Zealand, dkc, Co., 10 Victoria L. R. 154 Bime$ V. Domtnion Fire Co., 8 Ontario (App.) 644. ^* an SO fK' ,■ t ) i 3 t 11 ,C-J 56 THE LAWS OF INSURANCE. \rr Marketable value not always full measure of loss, and hold the whole value of the house It is true that in most cases the claim of the tenant from year to year, or for years, cannot be answered by handing over to him what may be the marketable value of his property, and the reason is that he insures more than the marketable value of his property, and he loses more than the marketable value of his property; he loses the house in which he is living, and the beneficial enjoyment of the house, as well as its pecuniary value A man cannot be compensated . simply by paying him the marketable value of his interest. But it does not follow that lie gets or can keep more than he has lost " (b). secusvrheu As a Tule, liowevcr, market value, and not local or obtaiDable in ■%• i the market. peculiar value, of pi'operty destroyed by fire, and which can be procured in the market, must control in ' ..ti- mating the loss (c). Joint-tenantB. A joint-tcnaut or a tenant in common has such an interest in the entirety as will entitle him to insure the whole (d). Husband in A husband has an insurable interest in property property to i_ ^ ^ i • • c • i • ■>• , wife's separate Settled to his Wife s Separate use, they residing together ^^'^' and sharing in the use of the property (e). A building insured as appurtenant to the freehold can only be recovered for as such. Therefore when in such a case the assured's title to the freehold has failed, he cannot maintain a claim in respect of such a building on the ground of its being moveable property, and so distinct from the freehold (/). Tenants have an insurable interest in the rent An appur- tenant to free- hold must be recovered for as such. Bent (6) (,'asteUain v. Preston, ii Q. li. D. 400, 401, per Bowen, Iv.J., 49 L. T. N. S. 29, 52 L. .T. Q. D. 366, 31 W. R. 557. (c) Fisiter v. (}reinsnrable interest. In Scotland, where i, the prennses are destroyed or rendered u eless fo he r" «:" '^"''"'"^""^ ""^ "" -«-"e interest A common carrier, pawnbroker, factor, broker and iw, wharfinger have an insurable interest in the Xods M rus ed to then. ; but if they insure the goods tofhl ul value and receive it, they will, after sadsfyng the —tthati' -fwtr: ztd Tntrt:: -e value, subject to :::; to L^LHsT tt insu,e the whole vat at t' t^e:» ""' '"'"'^ " ^ msure for their principal , and there sLas no douM IfTf "irrn ZLX """he^ '"" r mveljUwund^^nsure unless they have received 57 09 leo so s I] } J •ij 58 Consignee in trust. Tin Consignee in trust. E^i'lW THE LAWS OF INSURANCE. instructions to do so, or have promised to insure, or the usages of trade or the habit of dealing between them and their principals raises an implied obligation to insure (m). Consignees having a power to sell, manage, and dispose of the property subject to the rights of the consignor, and even consignees with a mere naked right to possession, may insure if they state the interest to be in their principal (w). But it is doubtful whether a consignee insuring in his own name could in case of loss recover the whole value of the property from the underwriter and hold the surplus beyond his own advances upon trust for the benefit of his principals (o). If, however, consignees did insure in their own names to the full value of the property, the consignors might even after loss ratify the insurance, which would then enure for their benefit (p). A creditor has aa insurable interest in goods volun- tarily consigned by his debtor to a third person in trust for such creditor {q). The firm of De la Torre in Spain consigned goods to Dubois & Son in London, and indorsed the bill of lading to them, accompanied by a letter directing them to note the goods for certain creditors of De la Torre. It was held that Dubois & Son were to be considered (m) Ebswwth V. Alliance, stipra. Silverthorne v Gillespie, 9 V.G. (Q. B.) 414. Gooderham v. Marlett, 14 U. C. (Q. B.) 228. noolf^. Horncastk, i B. & P. 316. Story Agency, s. iii. Conway v. Grojj, 10 East 536. Robertson v. Hamilton, 14 East 522. Knox v. Wood, I Camp. 543. Froffano v. Long, 4 B. & C. 219. Neale v. Bed, ' (ri) LiM:eia v. Crawford, 2 B. & P. N. K. 324, per Lord Eldon, I Taunt. 325. Castellain v. IVeston, 11 Q. B. D. 398. Ebsworthy. Alliance, L. E. 8 C. P. at 623, 29 L. T. N. S. 479, ^wp»-«- ^ , „ . (o) Ebsworth v. Alliance, and vide supra, p. 50. Castellain v. Preston, L. R. 11 Q. B. D. 398, per Bowen, L.J. . (») Giffardy. Tlie Queen, &c.. Co., i Hannay (New Brunswick), 432. 439 Williams V. North China Co., 1 C. P. D. 757. 35 ^- ^- N- S. 884. Hagedorn v. OUverson, 2 M. & S. 485. {q) Hill V. Secretav, i D. & P. 315. 59 INSURABLE INTEREST. as trustees for the creditors from the time the goods were put on board the ship, and that the creditors had an msurable interest in the goods (r). A merchant abroad, having effects in the hands Merchant .nd ot his correspondents here, may compel them to pro- '"'"'^enee. eTcts^; ^^"""^ '-' ''''' - ^-^ -- the If a merchant here has been accustomed to pro- cure insurances here for his correspondent abroad in the usual course of business, the latter has a right to expect h,s orders for insurances to be obeyed, unless the former give notice to discontinue the course of dealing (t). If bills of lading are sent with directions to insure, they cannot be accepted without obeying the order to insure. Limiting the broker to too small a premium, so that he cannot get a policy, amounts to disobedience (u). If goods sent are mortgaged, and a direction to insure accompany the bill of lading and be not obeyed oreclosure of the mortgage before receipt of the bill of ladmg will not alter the force of the direction (x). A person insuring as agent for another cannot A.ent recover as a principal on the policy. So a consigi ee ^^■ sumg for indemnity on a policy effected in his own "'""'''"■ name on another's goods consigned to him must show an msurable interest in such goods, and can only recover so far as he has interest (y). If he has a lien her of '^ ^ ' ^" ''" ''''^'' '' '^' '^'^^' nul r [r) Bill V. Secretan, i B. & P 315 u! )S* '• ^««'^«'«'' 2 Ti."- »89; per Buller. J. I In (y) Cusack V. Mutual insurance Co., 6 Lr Can Ji.ro, n .„ ■ I W. R. 557 ^ • ^^' 52 ^- J. Q. B. 366, 49 u T. N. 8. 29, I 1' i . I ;■ i-t ri 60 Stoppage in trnnititii. Bailer THE LAWS OF INSURANCE. It' goods are not at the risk of the consignee or purchaser until a certain event, he has no insurable interest in them until that event has happened (z) ; but in Hagedorn v. Oliver son, 2 M. & S. 485, the siiip of the assured was held to be at risk, though he did not confirm Mie insurance thereof till after the loss. Where a sale takes place the vendee's title is liable to be defeated by the vendor's right to stop in transitu (a) ; and if that right is exercised, the vendee ceases from the time of its exercise to have any insurable interest in the goods, which therefrom cease to be at his risk (/>). If a bailee have no lien and no responsibility for the safe custody of the goods entrusted to him, he has no insurable interest in himself, and can only insure on account of the persons interested, who may ratify such a contract ; and it would seem that he can recover the full value of the property insured as trustee for the true owners (c) though the latter were unaware of the insurance {d). If he has not possession, his lien has not arisen or is lost (c). Lord Eldon said, in Lumm V. Crawjwd, 2 N. II. 324: "I cannot agree to the doctrine that an agent may insure in respect of his lien to arise upon a subsequent performance of his contract. If he has a lien, he can insure the property in respect of it {/) as in the case of a repairer of a foreign ship " {g). (.'.) Amhr^oa v. J/o/-/<<, 4 App. Cas. 742, 46 L. .T. C. P. 11, 35 \- f' N. S. 566, 25 W. K. 14. See also Lucena v. Craiojord, 2 ii. & I. M. K. 269,' I Taunt. 325, per Lord Eldon. .,.,••,* {(/) As M the nature and condit'Tis of the exercise ol this right, >ee Kctidall V. Stccni <(■ Co., 11 Q. B. D. 356. (b) CToM V. iiarmo/i, 10 B. & C. 99. , (c) iVortk British and Mercantile v. Mojjatt, L, K. 1^^-J-- -^ n L J C P. I. discussing previously cited case, 20 W. K. 114, KUchlnii, L. n. 7 Q. D. at 450. 41 ^'- ''■ 20 L. T. N. S. 662. (d) But see Martineau v. hitclunif, L. U. Q. B. 227. 20 L. T. N. S. 836, 20 W. K. 769- (e) Ibid. See also i Phillips I79- ., ^„ „ t i n r ,XK ( /•) London andNorth-WrMern Jlailway v. (Jlipi, 28 L. J. «• i>. i». 1 E. & E. 652, 7 W. R 238, 33 L. T. 199. See Angell Insur. i M- iff) I Phillips 179. Under a pol may concern," be insured th( event of loss, i benefit (h). A carrier hai (i.) In respei which lie is re the Carriers Ac wliich responsi reasonable time livery (m). The and not, as he i (ii.) In respi charges (o). (iii.) In resp( him to insure tli to the rights of policy (j)). Where carrier and in trust as c the policy was tl mission are to b( will not extend that the plainti: value of all the gc as having insurec (/() IIooi)er V, Hob 312. (i) Forward v. I'ut (/■■) Jilley V. Horne 212. Currut/iers v. S (/) Phmnin: Co. v. I. V. Portsmouth, <0c., Co (»h) Cogffs V. Berna. (n) Waters v. Mom 217, 4 W. R. 245, 2 Ju (0) Crowle?/ V, Cohe, (/') I'aike, 567, 8th e INSUUAnr.K INTKUKST. 6i Inder a policy to a bailee. " for account of whom it in.urance by may concern, any persons whom the bailee intends toSun^r be insured thereby may recover their interest in the '^''«'" ""«"*> event of loss, if he was authorised to insure for their °°""'™ " benefit (h). A carrier has an insurable interest '" (i.) In respect of his responsibility to the extent to a currier La« which he IS responsible at common law (i). or under 1:^""' the Garners Acts (/.), or his own special contract (l) winch responsibility lasts during transit, and for a reasonable time thereafter before delivery or awaiting de- livery (m). Thereafter he is only an ordinary bailee (n) and not, as he is commonly called, an insurer. (ii.) In respect of his lien on the goods for his charges (o). (iii.) In respect of his possession, which will enable him to insure the whole value and recover it subject to the rights of the owner to claim the benefit of his policy (jj). Where carriers insured against fire " goods their own Carriers and 111 trust as carriers," and one of the conditions of "rSfuii the policy was that -goods held in trust or on com vaC "" mission are to be insured as such, otherwise the policy will not extend to cover such property," it was held that the plaintiffs were entitled to recover the full value of all the goods, and that they might be considered as having insured the goods which thev held in trust Jh) JIooj,er V. HoMnson, 98 U. S. 528. Stumi v. Jioker, 150 U. S. (i) Forward \: Futard, i T. IJ 27 »H) Goggs v. Bernard, 2 Kaym. loo. ^^' 4:'4 wTii'rrt s.^,,? "■ *"■ ^= '•■ '■ "• '•■ •?'■ '" •■■ •'■■ w S£':y;,STa.^ "• ^ *"• ««■ ■ "- ■'• "■ »■ '- "• -s"- gUlj «^ ir"ii"t 5= •SO 62 THE LAWS OF INSURANCE. as carriers for the benefit of the owners, for whom they would hold the amount recovered as trustees, after deducting what was due in respect of their own charges upon the goods (q). In America an action has been allowed by the owner of goods deposited with a forwarding agent to recover a proportionate part of an insurance effected by the latter on merchandise generally held in trust or on commission (r). Wharfinger. A wharfinger is not at common law responsible for goods which are casually burnt on the premises (s), but sometimes a wharfinger or other bailee is liable tc indemnify for fire by custom (t). When, however, no duty to indemnify or to insure is imposed upon the wharfinger or his firm, and there is no evidence that the insurance was made on the property or in the interest of the owner of the deposited goods, an in- surance by one partner will not be taken to have been made in the course of the firm's business, nor will the owner of the goods be allowed to recover from one partner the proceeds of a policy received by another («), Where a wharfinger insures goods as " in trust or on commission for which he is responsible," goods deposited with him and sold by the importer, and for which the wharfinger has given delivery warrants, cease to be at his risk, and he ha. no insurable interest therein after the date of such warrant (x). Wharfingers, warehousemen, and commission agents, Wharfingers, A-c. (q) London and North- Western Railway v. Olyn, i E. & E. 652, 28 L. J. Q. B. 188, 7 W. K. 238, 33 L. T. I99- (r) Sitter v. Morrs, 13 Penn. 218. (s) hklawaya v. Todd, 2 Stark. 401. \t) North British and Mercantile v. London, Liverpool, and biobe Co., 5 Ch. D. 569, 46 L. J. Ch. 537, 36 L. T. N. S. 629. (m) Armitage v. Winterbottom, 1 M. & G. 130. - „ „ r p Ix) North British and Mercantile \. Moffatt, 41 L. J. C. T. I, L. K. 7 C. P. 25, 25 L. T. N. S. 662, 20 W, R. 114. Loclchurt v. Cooper, 42 Am. Rep. 514. having goods : tlieir own nam full amount of own claims firs Such insura ordered by the to their benefit, As to the int goods entrusted (52 and S3 Vic Sale of Goods A A commissio principal for all goods and in ai goods, if the po the full damao advances on the cantile commissic And an agent on goods, if he re may arise after therein to the ful Blanket and i to factors or to ■ margins uninsun nothing more th factor or wareho which he has in (y) Armitage v. Win ^■, 5 ^l & B. 870, 25 ] „ ?• 375- London ana 28 L. J. Q. B. 188, 7 V ^"•«, I N. Y. Sup. Ct. I St. 219. {z) Home Insurance ( 527.S43- [a) De Forest v. Full W O'Connor v. Impt INSURABLE INTEREST. having goo(l8 in their premises, may insure them in their own names, and in case of loss may recover the full amount of insurance for the satisfaction of their own claims first, and hold the residue for the owner (y). Such insurance is not unusual, even when not ordered by the owners (.) ; and. wlien made, it enures ; to their beneht. As to the interest of a factor or mercantile agent in Factor, goods entrusted to him, see the Factors Act 1889 *"'*"•««»■ «^f '"pV^^'f• ''• ^^5). preserved by sec. 21 of the Sale of Goods Act 1893 (56 and 5; Vict. c. 71). A commission agent is to all the world but his Conunisaion principal for all mtents and purposes the owner of the -^^-t- goods and in an insurance in his own name on the goods 1 the policy was so intended, he can recover the full damage, and not merely the amount of advances on the goods, with interest, and their mer- cantile commission and charges as factors (a). And an agent to obtain advances for his principal Agent to on goods, if he render himself liable for any loss which °^'° may arise after their sale, has an insurable interest ^^"^' therein to the full amount of the loan (b). Blanket and lloating policies are sometimes issued Blanket ana to tactors or to warehousemen intended only to cover "r'^«u margms uninsured by other policies, or to cover SS^Jn.rs. nothing more than the limited interest which the factor or warehouseman may have in the property ''^^^^^^J^^^^i^ charge. It will make no difference Fire i N Y Snn Pt /w in^^' -^^ ^- ^- '99- Be Forest v. Fulton St. 2'i5. ■ P- ^'- ^^^""^ 94, 130. 136. Sitter v. 3Iorrs, 13 Penn! Jz) Borne Imuraru^e Co, v. Baltimore Warehouse Co., 3 Otto (93 U. S.) S .^'/"'•^''^ V.Fulton Fire Co., i N. Y. Sup. Ct (Halllo^ {h} O'Connor v. Imperial, 14 Lr. Can. Jur. afg. ^ '^'*- 63 SX3 * i s ■ ^ 64 Mt-auiuK of *'in tniBt." Goods " in trust." THK LAWH OF IN8UKANCK. if tlie factors or parties are a conipai.} forbidden by their charter to insure the goods, which only prevents them taking risk by the bailment (c). (}oods the assured's own, and " in trust or on com- mission," were insured by a policy against tire, the assured being a wharfinger and warehouseman vho had in his warehouse goods belonging to his customers, which were deposited with him in that capacity, and on which he had a lien for his charges for cartage- and warehouse rent, but no further interest of his own. No charge was made to his customers for insurance, nor were they informed of the existence of his policy. The plaintiff"s warehouse was burnt, with all the goods in it, and the company paid the value of his own ffoods and the amount of his lien on his customers' goods, but refused to pay the amount of the customers' interest in the goods beyond the lien. The Court, how- ever, decided that the goods of the customers were in trust within the meaning of the policy, and that the assured was entitled to recover the entire value, and would be entitled to apply so much to cover his own interest, and would be trustee for the owners as to the rest. In giving judgment. Lord Campbell, C.J., said : " What is meant in these policies by goods in trust ? I think it means goods with which the assured were entrusted, not goods held in trust in the strict technical sense "(4 If a policy contains the condition that goods held in trust must be insured as such, otherwise the policy will not cover them, the following test may be applied to determine whether the goods are held in trust and come within the condition. If there is reserved to the bailor the right to claim a re-delivery of the property deposited, the bailment is generally within the con- ic) Heme Insurance Co. v. Baltimore Warehouse Co., 3 Otto (d)' Donaldsm^ y. Manchester Ins., 14 C. S. C. (ist Beries) 601. Waters v. Monarch, cOc, 5 E. & B. 870, 25 L. J. Q. B. 102, 26 L. 1. 217, 4 W, R. 245. IN8UHAIILE INTEREST. dition «nd the property held on trust. But where there ,s a del.very of property on a eontraot for an eqmva ent m nuney or some other valuable con.modity .ud net for a return of the identical aul.ject-matter in .ta or,gmal or an altered form, this ia a .Lsfor of the property for value, and not a delivery in trust (e). "Goods the assured's own in trust or on con,-, nnasion for which they were responsible " were Lur"d ""'K;" by a p*ey agmnst fire. The goods were destroyed bv W '° fire, and the question whether they were covered bv "'°'^- the pohcy came before the Court for determination In p;,v,ng the judgment of the Couro, Keating J after referring to the form of the policies in thf'ca;,^ o iralers v. Monarch. .6... Co. (/) and L .D Jf.. W. R Co v aiyn (4,), sa>d : "It will 1« observed that the wording m the present pohcy is essentially different, for white m the cases referred to the insurance extended to seeds -m tr.;st or on commission generally.' in the p^seut case ,t ,s expressly limited to 'goods in trust or on comm,ss,on for which they (the assured) are mi, JJ had thrown out that if insurance companies wished m future to limit their responsibility to the plamtiffs (the insurance company) have done so in ;» policy, and have expressly limit-edtheir liabilt; " ot which they were responsible. It follows that the goods in question for which the assured were not Z^\^r.r' ™™"'' "^'"^ PoHoy, a^d con! »quently that the insurar.r-« company are entitled to the judgment of the Court {A). ^t\ Jimih AmtroHaa v. Randall f. n ^ p r. , 84], 6 Mnore, P. N S ,.,% . 3 P- C- loi, 22 L. T. N. 8. 111 &ll%t'i&'', i li'^'- -^i- T. 2.,, 4 W. B. 24S. E 65 '» i »■ »1 66 IHE LAWS OF INSURANCE. Where deposit Where com was deposited by farmers with a miller "Lounttoa to be Stored and used by the miller as part of the stie, they are ordinary stock of his trade, and was by him mixed not held in •' , . i • i i • n • -i trust. with other corn deposited with him tor a similar purpose, the farmers having the option of claiming at any time an equal quantity of wheat of the like quality or its value in cash, it was held that the transaction was virtually a sale and not a bailment by the farmers to the miller, and that therefore the miller could claim under a policy of insurance as for his own property, and thai it was not necessary to be described as goods held in trust (i). Goods with vendors at buyers' risk. Where goods remaining with the vendors at the buyers' risk, by agreement between them and their customers, were burnt, and at the time of the fire the vendors had floating policies of insurance which covered " goods on the premises, sold and paid for but rot removed," but they had no understanding with their customers as to any insurance, and the amount of insurance-money which the vendors received from the insurance company was not sufficient to cover the loss of their own goods exclusive of the goods sold, it was held that, as there was no contract between the vendors and their customers as to insurance, the vendors were under no obligation in the matter, and were entitled to appropriate to their om losses the whole sum received from tl.d insurance office (k). Assured may The purchaser of barrels of oil not yet actually hTtlreiun™^'*' identified and separated from other barrels of oil stored goods not in the same place has been held in Canada to have separated iron* , . , i i i, bulk, but Pn insurable interest as owner ot so many barrels as he which are at his risk, — — ~~ (i) South Australian Co. v. BandeV, T., K. 3 P. C. 101, 6 Moore P, C. N. 3. 341, 22 L. T. N. S. 843. Todd v. Liveipool, &c., 18 U.C. (C. P.) 192. , . (fc) JDaglish v. Buchanan, 16 C. S. C. (2ricl series) 332. Martiiiemi V. Kitshing, L. R. 7 Q. B. 436, 41 L. J. Q. B. 227, 26 L. T. N. S, 836, 20 W. R. 769. INSURABLE INTEREST 67 insured (0, on proof that, at the time of gettin. the atiir rr;sx:; -till '? even though they have not been sped L^;^a;p.o;ri;;d to him prior to the loss (n). •appropriated forts 17Zl^:;" 7"^"t-'--' i" ioods i.„* pay(„). ''^ °^'"'^^ P-'d ™r become Uable to^SS?;, if tThXtr'^'T ^V^-^We interest in goods lie IS liable to pay for them, whether he has th» sit fa Lord ffl t. '"'''''■ ^'""'' "'^"^^ «"^ P>°PO- smon, ijord Blackburn says "In nrrlar f^ m every portion of the goods 'V«^ "were an interest MR whpn fh. ^ ^^^' ^nd Lord Esher, Appeal, said It is the duty of a Court always to Ipan pay. Whore liability to pay there insurable in- terest. Liability to loss is insur- able interest. Undivided interest. Court leans in favour of insurable interest. (''I'^^attftewsoii V. lioj/al Insurance rn idT n y. Western, 25 U. C. (Q. B.) 209 ' ^'- ^*°- •^"'■- 45- Clark [in) Wilson v. Citifenn /('•/. ru t Etna, Lr. Can. i„r. 28, ' ^'•' '^ I^'- ^^an. Jur. 175. Stanton v. S ^y/'^^-fock, 10 App. Cas. 263. V. tet^fc-o'/fc„f :;^^°' ■•'« t° "" "ncHvided interest, 6^..,./;, r c/» s= l»^ r- fr u 68 THE LAWS OF INSURANCE. Manufacturer. assured to exercise a possible option to be released from the contract under which the insurable interest arises (s). A person who has contracted to make an insurable thing for another has an insurable interest therein imtil it is complete or passes to the person to whose order it is made, since he cannot get paid till it is completed, in the absence of special stipulations (<). Thus, where there was a contract to put machinery on defendant's premises and keep it in repair for two years, the price being payable on completion, but before completion (ti) an accidental fire destroyed the machinery, the plaintiffs were held not entitled to re- cover for the work they had done (x). A hoiut fide equitable interest in property, the legal title whereto appears to be in another, may be insured. So may also the legal interest be insured, for the interest both of a trustee and of his cestui qtie trust is an insurable one(2/). Beneficial If the beneficial title is insured, the fact that the legal owner=soie gstate is Outstanding in another will not vitiate a policy requiring that the assured should be entire, unqualified, and sole owner for his own nse and benefit {z). Legal or equitable interests suflScient. Equitable interest. And where the plaintiff had mortgaged his interest in the goods and freight to the defendant, the defendant (s) Lujlia V. Stoclc, lo App. Cas. 274. (<) See Orcmt v. Parkinson Insurance, 3 B. & P. 85, note. (?*) American law hereon in May Ins. r 16. (x) Jpplehi/ V. iVycrs, L. R. 2 C. V. 651. Claparcde v. Commercwl Union, Feb. i884, Q. B. iv) London and North- Western Railway v. Glyn, i E. & E. 652, 1 Jiir. N. S. 1004, 28 L. J. Q. B. 188, 33 I^- T. 199, 7 W. E. 238. Ex parte Houghton, 17 Ves. 253. Ex parte Yallop, 15 Vcs. 67. Camden \. Anderson, S T. K. 709. IVhyte v. Home Insurance Co., 14 Lr. (an, .rur. 30. Lucena v. Crawf^d, 2 N. R. 324, i Taunt. 325. Tidswelh: Anqerntein, Peaue 151 (3rci ed.) 204. Hill v. Secretan, i B. & P. 3i5' Waters v. Monarch, 5 E. & B. 8S1, 25 L. J. Q. B. 102, 26 L. T. 217, 4 W. R. 245. (z) American Basket Cos. v. FarmvUle Insurance Co., 3 Hughes (U. S. Ciie.Ct.)25i. INSURABLE INTEREST. might have insured the legal interest on his own account ; and he might also have insured the equitable interest remaining in the plaintiff on the plaintiffs account (a). A purchaser of realty also has an insurable interest Purchaser m the premises purchased from the signing of the ^ ' contract, and before completion, since he has the whole equitable estate therein, and the property is at his risk • and if It IS burned down, he must still pay for it(b)' This interest exists equally though the purchaser is Puvchase.s smug tor specific performance (c;, or for rescission of'''*^^^^*- the contract, or has not found his purchase-money or any part thereof. Circumstances may arise to defeat his title to recover on his policy, such as failure to obtain specific performance, or decree to rescind the contract of sale (d). An unpaid vendor of property Unpaid wiio IS still in possession has an insurable interest ^'^°• '. SO L. J. Ci : u JL & \\- 296. ^^' '^ ^^ • ^^- 5^7- ^^'" '"■' '^'«'/'«'-^««'^ V. Fratt, l!t^i^^ J- Z''^''"^^'' 'i U- *'■ <^^- ^-J 314. Sec Columhiau insurance Co. v. Lawrence, 2 Peters (U. S.) 2^ 10 P.-tpi-s HI ^^ \ rr^^ ^ni< ma Co. V. 'jyrr, 16 Weud. (N. Y.) ,9 ^' ' " <^^- ^'^ ^°'' (d) ^Dullox, 1868, pt. I, 387. (e) tMimp'idgev Jio//rd A'xrhange Assurance, 37 L. T. N. S o? 70 THE LAWS OF INSURANCE. Paid vendor. II' -: locomotive, but that the benefit of the insurance enured to the vendor (/). Unpaid vendor An unpaid vendor of goods who insured them, and of goods. parted with them before loss, was held not entitled to recover on his policy, since his interest in the goods was wholly gone ((/). A vendor who has been paid for the property sold, but has not conveyed it, ceases from the time of pay- ment to have any insurable interest in the premises, having only a bare legal estate without beneficial interest, lien, or liability. But if at the time of sale he has agreed to hold the purchaser insured or to insure for him, he would have an insurable interest, even after payment (Ji). Where a vendor has received the consideration and has transferred the property, but has not assigned the policy, neither vendor nor purchaser can sue on that policy ; the former has no interest, the latter no title (i). The exact point at which the vendor's insurable interest ceases may be questioned. In Collingridge v. Royal Exchange (k) the vendor was unpaid, and had not conveyed. Lush, J., there seemed to consider actual conveyance the point at which the vendor's interest ceased. But in a New South Wales case decided in 1 88 1 (0 it was held that a paid vendor who had not executed the conveyance had no real interest in the property, but only a bare legal estate, of which he was When vendor's interest ceases so as to disen- title him to policy-money. (/) 4Dalloz, i868, p. 1,387. ( 74 THE LAWS OF INSURANCE. Judgment creditor's interest in debtor's and bankrupt's property. Pledgee. Pawnbroker. Promise not to require payment of debt. Creditor. Surety. the lifetime of his father (which event happened) the proceeds of the policy should belong to the company absolutely ; but it was heii (Bo wen, L. J., dissenting) that the stipulation was voici as fettering a mortgagor's right to redeem, and that the administrator of the son was entitled to the policy-money after deducting all sums due {g). A judgment creditor has in some of the United States, in virtue of his judgment, an insurable interest in his debtor's property ; but he cannot recover from the in- surer any injury thereto as for a loss to himself, unless he also shows that the judgment debtor has not sufficient property left out of which the judgment can be satis- fied (A). And a creditor has in that country been also held to have an insurable interest in the insurable portion of a bankrupt's assets (^). A pawnbroker or other pledgee has an insurable interest in the property pledged to the amount of his loan ; and as a pawnbroker is by statute made liable for loss by fire of pawned property, he is allowed to insure the full value thereof {k). A promise by a creditor to a debtor without consi- deration not to require payment of his debt during his life, does not give the debtor an insurable interest in the life of the creditor (J). A creditor has an insurable interest both in the life of his debtor and of any surety for the debt. A surety has an insurable interest in the life of his The creditor's (g) Marquis of Northampton v. Pollock, 45 Ch. D. 190, aftirmed H. of L. (Lord Hannen dissenting) nomen. Scut v. Marquis of ^I'orth- ampton (1892), Ap. Ca*?. 2. (h) Spare v. Home Mutual Insurance Co., 8 Sawyer (U. S. C. Ci.) 618. {i) Itohrback v. Germania Co., 62 N. Y. 47 ; but see contra, Malckr V. King William's Toicn Co., 3 Buchanan Cape (East. Distr. Rep.) 271. (*) 35 & 36 Vict. c. 93, 8. 27. (I) Hehdon v. West, 32 L. J. Q. B. 85, 7 L, T. N. S. 854, 3 B. .<• .S. 579, II W. R. 423, 9 Jur. N. S. 747. INSURABLE INTEKEST. co-surety to the extent of his proportion of the debt, and also m the life of his principal debtor (m). A partner has an insurable interest in respect of P„tner capital contracted to be brought in by co-partner 00- The limit of the creditor's insurable interest is the Extent of amount of the debt at the time when the policy 13^^'^''''°- granted {0). ^ ®*'- And where a debtor covenanted to pay the premiums on policies m the hands of his creditor, the value of the creditor's interest in the covenant was held to be the sum which the insurance company would accept as a present payment, by way of commutation of the premiums to keep the policy subsisting (p). The debt must, however, be one which the law recog- Debt must be mses ; therefore a sum won at gambling would not be '*'^"'- sufficient. But a note given for a debt incurred during Debt of .inor minority gives an insurable interest (q). Although the debt may have been paid since the Paid since date ot the insurance, the policy-money is stiU re- P""''^- .overable (/•). But it has been held that a creditor, named as Creditorna.ed Denebciary m a pohcy on his debtor's life has no ?' '^"^^"''^''^ further interest after payment of his debt, 'and the '^^&X. pohcy becomes one for the benefit of the insured (s). Jhe Cr^r^S^nght^^O^^^^ i3 not statute- ba.ed. (n) Connecticut Mutual v. Luclcs, io8 U. S 408 ^^^san V. Edie, 2 Park 915 (8th eX? ' Godsall v. BoUero, (V) Exp. Bank of Ireland, 17 L. R (Ir.) 507. (q) Dwyer v Edie, 2 Park 914 (8th ed.). (r) IMV} V, London Indisputable, i Kay & J 22? 2.. r T r-i ^ Life, 32 H„n. (N. Y )'3o6. "' ^ ' ^' '°^' ^'"J"'"" '■- ^^i'^'^- Mut. (s) Crotty V. Union Mutual Life, 114 U. S. Rep. 621 75 Sao 00 ^ V I;: 76 THE LAWK OF INSURANCE. affected by the debt becoming statute- barred before the life drops {t). Fully secured. It would Seem that a secured creditor, whose secuiity appears to be ample, has nevertheless an insurable interest in his debtor's life ; for Lord Kenyon said (m), " A creditor has certainly an interest in the life of his debtor, because the means by which he was to be satis- fied might materially depend upon it, and at all events the death must in all cases in some degree lessen tlie security." Policy on life of debtor's wife. Joint debtors. Mortgage equitable lien and debt. A debtor and his wife assigned a chose in action of tlie wife to a creditor of the husband to secure ;^30c owing by the liusband. The creditor insured the life of the wife for ;^200; and although the chose iu action was not reduced into possession during the Hfe of the wife, on her death the creditor was held to liave an insurable interest (x). Where A. and B. jointly execute a bond as a collateral security for the repayment of a sum of money, A. has an interest in B.'s life in respect of his liability in case of B.'s death to pay the whole of the debt. But his interest iu the life is only in half the amount of the debt secured by the bond, since he was in any event liable for the other half {y). A mortgagee has an insurable interest in the mort- gaged property up to the amount of the debt, whether the mortgage is legal or equitable ; and it seems perfectly clear that a person having a lien or an interest in the nature of a lien on the property in- sured has an insurable interest, and it will make no difference in such a ease that he might still have a right to pursue his debtor personally for the debt on [t) Garner v. Moore, 3 Drew. 277, 24 L. J. Ch. 6S7. Bads v. American, 36 Barb. (N. Y.) 357, ii\hs Life Insuiance, §§ lS-37. (m) Anderson v. Edie, 2 Park 914 (8th ed.). (x) Jiennou v. Blackwell, 4 Have 434, 9 .Jur. 390, 14 L. J. Cli. 329. (y) Branford v. f^aimders, 25 W. K. 650. INaURAFJLK rNTRUKhT. ficcount of which the lien attached (:V A debt wliich has no reference to the article insured, and which cannot create a hen on it, will not give an insurable interest • but u tlubt which arises in consequence of the' article insured, and winch would have given a lien on It, does give an insurable interest (a) ; and see BoMCs V Houe Ins., 3 U. C. (App.) 269. where it was held that the indorser of an accommodation bill had an msurable interest in the goods for which the bill was given, If It had been agreed that he should be paid out of the proceeds of such goods. Neither actual nor con- structive possession of the property need be in the assured either when the policy is issued or the loss happens. It is enough to have an equitable lien on the specific property covered by the policy (h). If the interest of the assured be liable to be defeated Poi.ev .00,. by the act of a third person, or be voidable, the policy S^^^ will not therefore be invalidated under 14 Geo IlT KXay 0. 48, S. 2 (c). ' ' *^''' Imperial, 4 Canada (S. C.) V. me. 2 Park g'l^ ^"^ ^^ ""■ ^«'-'-'««". 'O B. & C. 99. Z),.y«; i f • ; « \l U I i- •#* ! .: at f •■■ » 7« THE LAWS OF 1N8URANCK. insure her own life in her own name without reference to its being for her husband, the policy was held void (/). Piro inBuranpo It has been held in one American State that where in« in flrmiTimiuo' suranco against loss by fire is effected by a member of a to firm *^'""^*' firwi in the firm's name upon property of the firm, and the premium therefor is paid from funds of the firm though charged by such member to himself, the in- surance will be for the benefit of the firm, notwith- standing that the partner thus . Tecting it intends it for his own private benefit (<■• , con- i-rom,um need of insurance (.). fc T % ' T^^"'' """'^'^^^ -^■bep.paid. „ . ^^ " '' t'le almost univpr^al practee of .naurers other than .narine to Hpuhfe that the contvaet shall „„t be,™ to take effecTunt I e ,,rem,u„, has been paid, a„d the Courts in prl"" e t s„cl, a st,pulati„„ will „„t („„iess the premCas been paid) mve effcnf in ih^ ,\ ,. . , F*cuiium ius happened iftei T '^'^ ^^'"'" ^ ^°«« ^''^« Happened a tei an agreement to issue and occenf « I.ol.cy but before the policy has been issued even when It has been delivered as on escrow (d) But where it is a condition in the policy that ^hP n policy shall not be binding until thp ,., • Non-payment. -cwt.iureadd..„L:t,tr-.":r:o!sf.^ against the company, and liberillv in fa ^^'^^ "rfoitureiaon insnrp.l TUr. i j n ^^^^^'^"7 ^^ favour of the"'8"'-er. iiisuied. llie burden of proof is on the ^ .j^.^t.hrea.onhe^o,j-rr:^:zr^,: And under a provision in a noliov of lif^ • that a default in payment of n p, ; In "^''"^"^"^^^''pu'at.on n fn.F \ r l^''-^™'^"^ ^t premiums shall not work t'"^' "» defank a forfeiture of the policy, but the insur'innp n f "^ '->'">«»* of onnimiifn/i „, 1 1 , inhuiance may be f""'"iinm3 commuted and reduced to the sum of th. . , iu^-'rod premiums naid fl,P i... i ^^ •'xnnual entitled to i iumsj)aid, tlie insured may at any time elect to P'"'^""^' Po^'-^y- J. uielity mid Casualty Co., 41 Fed. i4p. 506. F ! i I ( s ; I i £ se3 <•• 82 THE LAWS OF INSURANCE. Forfeiture Policy not binding till premium paid. Waiver of the condition. pay no more premiums, and by notice thereof to the insurer become entitled to a paid-up policy for the amount of premiums paid {g). Since the Courts will not favour a forfeiture (and this applies as much to forfeitures under condi- tions in policies as to those under covenants in leases), it has been held in America that a forfeiture under a life policy for non-payment of premium must be claimed before the death of the assured, at which date tlie liability accrues, and can no longer be denied {h). It does not, however, seem necessary in that case to ao so far. The doctrine of estoppel rather than waiver applies to cases where the insurer discovers a forfeiture, and lies by until the happening of the loss. But in- surers by their acts may estop themselves from setting up forfeiture (i). If a policy containing a condition that it shall not be binding until the premium is paid, and also an acknowledgment of the receipt of the premium is de- livered to the assured before payment of the premium, this raises a presumption of waiver of such condition, and of an intention to give credit for the premium, the condition notwithstanding {k). A policy stipulated that it should not be binding imtil the actual payment of the premium, and the Court held that it was competent for insurers to waive the condition, and that such waiver might be estab- lished by evidence of an express agreement to that effect or by circumstances ; and that delivering a policy (n\ Lovell v. Si. Louis Mutual Life, 1 1 1 U. S. Rep. 264. (//) See Vonmi v. Mufval Life Co., 2 Sawyer (0. Ut. U. S.) 325. (i) See Scottish Equitahh v. Jiuint, 4. G. S. C. (4th series 1076. ]Vin(, V. narveii, 5 De G. M. & G. 265, 23 L. J. Oh. 511 23, L. I. 1:0. 18 Jur. 394, 2 W. R. 370. Apideton v. I'hmuj', 47 Am. Kep. 220. (k) Masse v. Hochelaqa Co., 22 Lr. (Jan. Jnr. 124. Basvi y. Ihm- hohlt iMutual, 3S New Jers.y 429, 3 K"nt Gemini. 260. Anderson v. Thornton, 8 Ex. 425- ' o« JI'c/k v. &ott>sh,.l:c., Co., 52 N. Y. (bni). ( :t.) 490. "9, 13 Time's L ];. ;( THE PEEiMIUM. oonfessiog the payment of premium was evidence of the waiver (/). -^viucuce or In any case where credit is intended to be ^iven for Cred. r premiums, and is artnallv ^Ur^^ o^ven ror Credit for will not avmVl ' ''^^^^'^^ S^^e»' non-payment thereof p''^'"'"'"- will not avoid the policy, and is no defence to «n action on the policy, but merely matter o set^offl^ Even though the assured has been enjoined in Chalrl" pay the premiums, and has not done so i is "o defence to the insurer (^ ' ® ^^ inadmissible (0). "'"^ ^"^ """^' ™ ''eld "»"«>■• bvXttated^t'hT""'''''' '"^"™''™ ^-S--""- "yw...,, om„iary stated that no insurance would be in for^p P'w^m of """' Py™™* of the premium, and the polL re ited '"""'"°- paynient of the premium for an insurance om 2 December ,895 to ist January ,807 but the Z'T, "",", ''"' "■" P^'^-- » ^6t'h''Decemte 1895 a loss by burglary took- place, the policy ha^il .einamed m the possession of the comnnni; ^ v ° Jecided tliat the policy wa, L 1 ?, '^^''"^^ """ "' "as c,»,p..y •■lo poHoy was not held as an escrow nn^ ranimng mce .t rected the payment of the prem , t ' K."?." °° °' In the United States of America, wliere a note .t s.ts::s-!h::rr-rr"' ^-evoM H.cy contamed a condition that where a note was 83 Cotieii V. A; '.»»»* V. ;'/,„„, 4 T,.,'mi. 246 '■ ' -'" '■• •"«"•■ ■ C«mp. 532- "4 i3 Ti,„o, l: II. j,;" "'"'"'"* "SW). ' «■ 11. ..,,66 r,. J. Q. B. ^ C30 SCO so ••I- ■1-? 84 TIIK LAWS OF 1N.SUKAN(;E. Credit for premiums. taken for the preniium it should be considered a cash payment, provided it was paid when due (7). When a preniium is paid by bill of exchange or promissory note, the liability of the insurer lasts until the maturity of the note and even thereafter, unless it be stipulated that it shall terminate if the note is dis- honoured (r). For the acceptance of a note is a form of giving credit. And the Supreme Court of the United States has held that, to insure a forfeiture, the bill must be protested and proceeded on (s). Where there is a condition that if a note or other obligation be taken for a premium, and be riot paid when due, the policy becomes null and void, that result will follow on dishonour of the note (0- Waiver bv Acceptance of premiums falling due after breach of 3um""^ condition or discovery thereof, evinces an election to continue the policy as valid, if the existence of the lireach be known (k). So if the premium be accepted by an agent, and remitted with information of the breach, the insurers must return it at once or they will, it seems, be liable (x). An insurance company granted a loan upon a bond with sureties, and a policy on the life of the borrower as collateral security. The premiums not being paid within the days of grace, the insurers demanded theiu. and commenced actions for them against the sureties (//). This would have amounted to a waiver of the forfeiiure, but, as the sureties refused to pay the premiums, V.-C. Waiver of forfeiture by non-payment. (n) nUnois Central, dr., Co., v. Wool/, 37 HH-'ois 354- See also "ompamie d'As-mranre v. Grnmmon, 24 l^r. Lan .) uv. 82 (r ilupJcins V. llawLnje Lmu-ancv . .1. Ex. 9, followed \n The London and JAdicashirc Life Ax.stir. Co. v. Jeon Fleming, 13 Times L. R. 572. {(l) Ih-it'mli hidustry Co. \. H7r/7?, 17 ('. 1]. 644, 649. But see .U'w treed V. M'Gillirra)/, 13 Moore 1'. C. 89. (/;) Simpson v. Accidental Death, 2 C. 15. N. S. 257, 26 L. J. C. 1'. 289, 30 L. 'I'. 31. 3 .liir. N. S. 1070, 5 W. K. 307. Want v. Blvnt. 12 East I S3. THE PREMIUM. o_ ficial owner of the policy ; and acceptance hy the com- pany in ignorance of the death, which ignorance is shared by the person offering payment, will not save the policy (i). An extreme case occurred iu Canada. The assured tor overdue could not pay a premium, but gave his cheque on the p^''°''»'° understanding that it should not be presented till Payment- there were funds to meet it. It was several times S"^ '''^"™ presented and dishonoured, but at last funds suflicient were lodged in the bank, and notice thereof aiven to tlie msurer shortly before the banlc's hour for^closino- The insurer's agent waited till next morning, and the assured was killed during the evening, The Court of Queen's Bench held by a majority that payment was not made in time (/.^)-(i) Because the cheque did not operate as payment, but only as a means thereto- (2) That by the death before; actual payment mutuality between the parties became impossible, and the health certificate could not be given. And where a mutual benefit association insured its Accident ' members against personal injuries, effected during the ''^^''''^ *^^**^» continuance of membership, through external, violent, pS " and accidental means., and against death from such CSdent injuries within ninety days of the accident, it was held that where a member died within ninety days after an accident that caused his death, the fact that before his death he ceased to be a member because of default in paying an assessment falling due after the accident did not relieve the association from liability which became fixed at the time of the accident (/). The stipulation contained in most life policies that Renewal overdue premiums will only be received if the assured SSn as to good health. {i) I'ntehard v. JIerrhant.i\ ,tc., Co., 3 C. B. N. S. 62- 27 L T f P (h,) ^edl V. [fnion Mutual Life ac TT P /() n\ r^-. a 01 7 Ontario (App.) 171. -^ ' 45 ^'- ^- N- ii-) 593- AHd. (0 I'mrkhemr v. Mutual Accident Assoc, d'c, 61 Fed. Kcp. S16. CO ^ «•>- '■■'■i 88 THE JAWS OF INSURANCE. is in good health at the time of endering them, is merely to guard against frauds being conmiitted upon the insurer, not to prevent him from dealing with the insured in full knowledge of the facts as to his health which he and his friends possessed. So where the assured had received what turned out to be his death- wound, but at the time neither he nov his doctor had any apprehension tliat it would be fatal, and paid an overdue premium, the payment in Canada was held good and the forfeiture completely waived (m). If no risk, preminm returnable. If risk begins, premium not returnable. In Tyrie v. Fletcher (n) Lord Mansfield said : " Where the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured or to any other cause, the premium shall be returned. The underwriter receives a premium for running the risk of indemnifying the insured, and whatever cause it be owing to, if he does not run the risk, the consideration for which the premium or money was put into his hands fails, and therefore he ought to return it. Another rule is, that if the risk has once commenced there shall be no apportionment or return of premium afterwards There has been an instance put of a policy where the measure is by time, which seems to me to be very strong, and that is an insurance iipon a man's life for twelve months. There can be no doubt but the risk there is constituted by the „|S -n it For ■ jinium ='auie .e IS a measure of time, and depends entire the underwriter would demand doubh for two years that he would take to insv; life for one year only. In such policies general exception against suicide. If the person puts an end to his own life the next day, or a month after- wards, or at any other period within the twelve months, there never was any idea in any man's breast that part of the premium should be returned." And in the (m) CampheU v. National Insurance Co., 24 U. C. (C. P.) 133. (n) 2 Cowp. 668, 689. Want v. Blunt, 12 Ka.st 183. TJIK I'KKMIUM. same case, Aston J., thus expressed himself • " Tlie sum payable and the time were both lumped." The premium, if paid before the risk begins, can be NoHskno recovered If the risk insured against is riot run "''""■'""• whether the cause of its not being run is tlie fault' will, or pleasure of the insured (o). Yov the risk is the consideration for which the premium is to be paid If It IS not run consideration fails, and it is inequit' able that the insurer should receive and retain the price ot running a risk when in fact he runs none (p). Tl.e same principle is also expresse.l when it is .aid that payment of premium before risk run is pay ment ,ub condiiionc, or deposit of money with the msurer to answer a certain event, and that the money paid may be recovered back (if the condition is not satisfied or the event does not happen) as money received to the use of the assured (g). Where the interest insured turns out to be less than the amount insured, there shall be a return of the overplus premium. This is a custom co-eval with the contract of insurance itself, but applies only where the over-insurance is made in good faith. Where several policies have been effected in goodEetumcf tai h before the risk begins on the same subject-matter ??'"''»" and their total amount exceeds the value of the in-' P^oHder^^^' terest of the assured in the whole subject-matter there must be a return of premium rateably on all the policies, calculated in such a way as to reduce the premium on each policy to that proper to the amount ac ually m tlie result insured by or payable under that 89 iV'ti l-< SO (0) 6'levemon v. Snow, 3 Bui-r. 12^7 i Wm Rl ,Tr t ■ ip) 2 Park 768 (8th ed). ' ^ ^^'^- 90 THE LAW8 OF INSURANCE. No interest, return of liremium. Tliis is a further conaequeiico of the principle that if the property insured never conies within the terms of the written contract, the insurer never has any risk (.s). It does not matter whether the insurance was made in expectation of an interest or in over-estimation of the value thereof. The application of the contract is limited to the amount really at risk, and if the pre- mium is paid upon any greater amount, or any other risk, it is not paid for what is within the contract. Insurers of the same interest in the pi'operty, more- over, all rank together, since they all contract to indemnify in respect of the same interest in the assured ; and, as they are hound to contribute propor- tionally in case of loss, they ought also to return the premiums proportionally where no risk attaches, or a less risk than that contemplated (t). Where the insurance is in expectation of interest, and it turns out that the assured in the end had no interest at all, the policy never attached, and the pre- mium is repayable (u). When the policy is void ah initio, without any fault in the assured, and has never attached, the premium is returnable, since the insurer has never been under any liability (x). These questions arise rarely in fire and life insur- ance, since, as a rule, the interest in such cases is certainly known to the assured, and if he over-insures there is suspicion of bad faith. But a house may be insured in the mistaken belief that it is standing, when in fact it has already been (*•) Henlde, v. Boijal Exchange, i Ves. Sen. 309. (t) Gudiu V. London Asstirance, i Burr. 490. See also Fisk v. Masterman, 8 M. & W. 165. («) liouth V. Thommmi, 11 East 428. (x) Furtado v. Rodger n, 3 B. & P. 191. Ooni v. Bruce, 12 East 226 91 THE I'KEMIUM. burnt down, and a life may be insured in belief that the cestui que vie is still living when he is in fact dead (v)~ in botii of which cases the premium must be returned. As a general rule the right to the premium is inde- ifriBk... teasiblo when the policy attaches (z). And when the f^""'""^ •^""'t risk insured against has once begun, the premium " "'■'°^'"'"'- cannot be recovered back by the assured (a). The risk may attach only in part or only to some separable part of the subject-matter. In such cases the risk IS divisible and the whole risk is not run That portion of the premium which is apportionable to that part of the subject-matter to which no risk has attached is recoverable (h). But if the whole con- tract IS one and entire, and the risk has once com- menced, tliere will be no return of premium (c). As regards life insurance, it was earlv laid down that where a policy was granted containin/the common exceptions of suicide and deatli by the hands of justice It the party commits suicide or is executed within twenty-four hours of the granting of the policy, there shall be no return of premium, on the principle that a thougli the death was caused by an excepted risk' the policy was operative so far as regarded the risk.' covered by it (d). Insurers not infrequently stipulate for a power to terminate the risk at any time during its currency, upon notice and repayment of a proportion of the premium. Ihis option is probably taken to enable them to write oil risks when the course of their business durin- a iy) intone y-^Iarim, dc, Co., i Ex. D. Si. 45 L.J. Ex ^61 -^a T T ^. S. 490, 24 W. 1{. 554. See per An.pl.lett; B ^ ' ^^ ^^ ^- [z] Mosea v. rratt, 4 Caiup. 297 (a) Lnmry v. Bovrdicu, 2 Doug. 46S. Turie v Fletcher <-•««.„ rre ^tone V. Marine, dc, Co., uh! supra. ^ ^^' ' ^"""P- '^^^^ W >^tevenson, v. iSnow, 3 liurr. 1238, i Wm Bl -ic so C/9 d» sxa> !»(• I'.. 92 THE LAWtt OF INHUUANCK. particulnv year renders it prudont to do so, or to enable them to get rid of a liability whore, after insurance, they find grounds for suspicion. In time policies no apportionment of premium or risk is usually allowed (e). This rule wuuld apply consimili casit to insurance other than marine; but such contingencies, thou' ! 1. J ii 94 THE LAWS OF INSURANCE. i M • 'i 1 ( i i '' into a legal contract, but mistakenly enter into a contract which is illegal, the insured can recover back the premium (q). If the contract is illegal in conseqnence of facts not known to the parties at the time of its making, the premium is recoverable. Ignorance of fact is no fault (/•). Xon-retura of Where a policy was invalid for non-compliance with und™r"in valid the terms of a statute regulating the mode of makin" policy. 1^^ jj. ^g^g jjgjjj ^^ Canada that the insured could not get back his premiums if he paid with knowledge of But company the invalidity (s). But the company were held bound bound to grant ... , . , . , valid policy, to givc him a proper policy, and in a later case the Supreme Court of Canada has held it a fraud to set up the want of a seal as an answer to an action on a policy where the insurers were by their constitution only permitted to contract under seal(^). Premium returnable. Where the name of the person interested in a policy is omitted or not inserted as that of the person interested (ii), or as a trustee for him or her (z), the woiild-be assured is entitled to a return of premiums paid by him (?/) if there is no fraud in such a case (:), as the policy never attaches. Recovery of In Lowcr Canada a creditor, who in good faith over- premiums by . , , . 1 1 , . , . p 111 . , ■, creditor over- insured his debtor s lire, was held entitled to a return insuring. ^f premiums as to the excess, there having been no intention to defraud, but only a mistake as to law (a). iq) Hentifi v. Stanfortli, 5 Mau. & S. 122, i Stark, N. P. 254, (r) Oom V. Bruve, 12 East 225. («) Ferry v. Newcastle District Mutual Fire Co., 8 U. C. (Q, Wright v. A'mji 3Ititual, 29 U. C. (C. P.) 221. (t) London Life Co. v. Wright, 5 ("anada (S. C.) 467. («) Hodson V. Observer, 8 E. & B. 40, 26 L. J. Q. B. 303, 29 L, 3 .Inr. N. S. 1 125, 5 W. R. 712. ^x) Collett V. Morrison, 9 Hare 162, 21 L. .T. Cli. 873. (y) JJowkery. Canada JAfe, 24 TJ. 0. (Q. B. ) 591. (:) Wainwright v. Bland, i .AF. & R. 481, 1 M. & W. 32, 5 L. Ex. 147. (n) Lapicrrev. London and Lancashire Life Co. (1877), 2 Quebec Dig. 399, B.)363. T.278, J. N. S. Steveus *^'i the sauK THE PliEMIUM. 95 Premiums paid on r-,n assurance obtained by actual Effect of fraud fraud on the part of the assured or his agent cannot °" *■"*""' °^ be recovered back. The insurer thus gains one or ^''"""""'" more premiums by an unsuccessful attempt to defraud him, and the assured is to that extent fined for his fraud; but to let the insured recover his premium would allow him to allege his own wrong as a ground of relief (&). o b ^ Altering the policy by adding words which would materially change its effect will amount to fraud and have the same result (c). Equity, however, will only decree the delivery up of a fraudulent and therefore void policy, when the insurer, .seeking relief, offers either to repay the pre- miums paid, or to submit to any terms which the Court may think fit to impose in granting such relief, which will include the repayment of premiums. To hold otherwise would be to let the insurer affirm and deny the contract in one breath (d). And this ride is applied even in cases of gross fraud or crime on the part of the assured ; thus, in Prince of Wales Co v Palmer the assured effected a policy in his brother's name and on his brother's life, and was declared by a coroners jury to have poisoned his brother. Under these circumstances the policy was, at the suit of the insurers, of course declared void ; but the insurers were not allowed to retain the premiums, which were ordered to be applied in payment of tlie costs of all parties and the residue paid into Court with liberty to apply (c). <»'i the same principle, in the case of a policy of Policy cau- - celled. Jh) n.,pn,an v. Fra.cr, Park 456. Taylor v. Chester, L. R. 4 Q. B. p'emi'mi' (c) Lm,fihor7i v. Color/an, 4 Tannt. 330. '/) Irince oj Wales C. v. Pidmn; 25 Bciiv. 605. i i ■BBS CO lata (•> 96 THE LAWS OV INSUKANUE. life insurance which had been obtained by fraud, the first underwriter being simply a decoy duck to induce other persons to sign, the policy was set aside at the suit of the insurer, with costs, and the premium received on the policy was directed to go in part payment of the costs (/) ; and where a merchant, having heard that his ship was in danger, insured lier without dis- closing to the insurers what intelligence he had re- ceived. Lord Macclesfield held that the concealing of this intelligence was a fraud, and decreed the policy to be delivered up witli costs, but the premium to be paid back, and allowed out of the costs (j/). Where a policy is avoided by concealment or hy misrepresentation not fraudulent, the assured is en- titled to a return of the premium. The policy is itself conclusive evidence that the insurers have re- ceived the premium (//.). Fomi of urder. The fomi of an order setting aside a void contract of insurance, the insurers returning the premiums, is as follows : — •' The plaintiffs (the company) being willing, and hereby offering to return the premiums, declare that the acceptance by the plaintiffs of the defendant's life was void and of no effect, that they were noc bound to deliver the policy, and that the contract be delivered up to be cancelled " (i). Return of premium where inisre- preseutatiou. Fraud of insurer. Iteturn of premium. A premium paid on an insurance obtained by fraud on the part of the insurer may be recovered by the assured (k). In Carter \. Bochvi, Lord Mansfield well observes that the principle on which this rule rests governs all contracts and dealings. " Good faith forbids iU (./) Whittinnham v. Tliornhoroufih, 2 Vern, 206, Prec. CIi. 20. {g) Dc Vofita V. Sramhct, 2 I'. Wins. 1C9. See Duvlclt v. Wdlimm, 2 Cr & iM. 34S, 3 L. J. N. S. Kx. 141. (/*) AndtrxOH v. Tliornton, S E.\. 425. Feise v. PaHuison, 4 Tuuiit, 640. jVein yurl- J.i/e v. Fletvhn; 10 Diivis (Su[). Ct. U. H.) 519. (0 Lomloii Assurance v. Mcme.U, 11 Cli. D. 372,48 L. J. (!li. 331, 27 W. K. 444. (k) Carter v. Bur.lim, 3 Rui r. 1909. DvfeU \\ Wlhon, i Camp. 401. 97 THE PREAflUM. eitlier party, by concealing what he privately knows to draw the other into a bargain from his ignorance of that fact, and hia believing the contrary." .So also the premium is recoverable when the con- Parties not ,„ tract IS Illegal and the insurer is more in the wrouf^ "'"■' ''^■''■''"'• than the assured, the parties not being in. pari dclido {I). ci I The insurers may and usually do stipulate as one of Pre^iun. tliG terms on whicli they will insure, that in certain 'f "''"•* events (o.^.. in case of any untrue statement by the ?-«"" assured) the premiums paid shall be forfeited. When the parties have thus contracted and the prescribed events happen, the premiums which the assured has paid cannot be recovered back by him even thouoh the untrue statement shall have been made quL innocently (m). Such stipulation is made by way of condition in tlie policy. The events usually stipulated for are • avoidance o the policy by any untrue or incorrect statement in the declaration, or breach of warranty or condition. •" Where the risk has been insufhciently disclosed, or A™dcau't misrepresented, or materially altered or varied durino- T'^p'" '-^^"^^^ le contract, the insm-Prl ha^ r.^ v.;„u^ •.-, , , * .^'ii^'if^P^ , ^. ...,A,K,^.x^auJ uii/tjreu or varied durino- r^^t"'' '" tl>e contract, the insured has no right, either le-^al or -'SIi eduitfinlp ill ili/^ rii^r,^ -n ^ . , '^ preiiiiuius. -luitable, in the absence of any special stipulation in the policy, to compel the insurer either to take an enhanced premium or to return any portion of the premium paid. Xor can he in case of a loss recover tlie pohcy-moneys on the tender of the premium -ually charged by the insurer on the actlial risk i»'^ buch conduct or events entitle the insurer (m) A nderson v. Fitzaemld a V\ r n .o r "• 141, 2 Cr. & M. 348. w^?«/rts, 3 L. J. iN. s. r 09 so tm- ? h ! { ! i n G 98 Amount of premium evidence of materiality. Excess of authority by agent return of prominm. lleturu of premium by agreement. THE LAWS OF INSURANCE. to enforce a forfeiture or to waive it at 1m's own option (%). When questions arise as to the materiality of facts not disclosed, the amount of premium which would have been charged on a risk, including these facts, is evidence to show that knowledge of the facts would have been material or immaterial to the insurer (o). It seems that if a premium be paid to the agent of an insurer in respect of a contract known, or which ought to be known, to be outside the scope of his agency, it is not recoverable from the insurer {p). It may be observed that if the insurer receives tlie premium from his agent with knowledge of the nature of the insurance effected, he ratifies such contract, except in certain cases, in which the insurers are cor- porations with limited powers, and such ratification is ultra vires. But even there profit by an ultra vires act is unconscientious, and the assured can maintain an action for the premiums, and if the iiisurance company is in liquidation may prove for the same {q). If a policy bo issued in fraud of the insurance company, the company would be bound to account to the assured for any benefit derived from the pre- miums (r). Agreements may be made for return of a part of the premium in certain events or on the doing by the assured of certain things. Such agreements when (h) Seurs v. Agrintlturcd, 32 TT. C. (C. V.) 585. (0) Ke Universal Xon-Tarif Co., Forbes' claim, 19 Eq. 485, 44 L .1. Ch. 761, 23 W. R. 464. Jonides v. Petider, L. R. 9 Q. B. 531, 43 !'• ''• N. S. Q. 13. 227, 30 L. T. N. S. 547, 22 W. R. 884. Lynch v. IMm- ford, 14 East 494. Lynch v. Ilumilton, 3 Taunt. 37. (p) Be Wt7iton'ii Case, 34 L. T 942. \q) Burgess and Stock's Case, 2 J. & H. 441, 31 L. J. Ch. 749, 10 W.li. (r) Athenasum Life Insurance Co.v. Pooley, 3 De G. & J. 294, 28 L .1. Ch no I Giflt". 102. ? Jur. N. S. I2q. Wood's claim, t,o^' •!••"■ 373. 3 ^' 'i'- N. S. 878, '9 W. R. 366. lironm's claim, 10 W. R. 662. (s) Manhy v. Gri THE PREMIUM. iiiade are to be construed by the Court. IJy them if the insurer is given a discretion to return the part, the Court will not interfere with the exercise of such etreT(.)^ ''' ''''^''' '' ''' ^^-^ ^^ — bly In the absence of such a discretionary power reserved by the contract, the insurer will be bound to return the premium on the occurrence of the events or doinc. of the things specified. ° Where the policy does not accord with the proposals Policy at there is no contract, and consequently the premium if -'i^-' with paid must be repaid (0, unless the variance is the ^rS' result of mutual mistake, in which , ase the policy mav '"™"'"- be rectified. ^ '' -^ Where it is stipulated that premiums shal] be paid Premiums by a cer am date, they must be so paid or the poL^-??r^<' IS voidable at the election of the insurers («)! who '"'^'■ may, however waive the forfeiture, but are under no eqmtable obligation to do so, upon tender of the ' premiums due (x). If an agent is designated as receiver and is changed de ay due to such change not notified to the assured will not create a forfeiture (y). So also if a foreign company gives up its office in th domicile of the assured, and has no legally con- stituted agent there (z). ^ ^ 99 564. (x) Cotton 6'tates v /.pjitpr o c A r« » thereto, m.^son vVi.ra^eFc^'/.fe (^"' -| -- - notes (^) Ihnou V. Positive, 23 Lr/can. Jur. 26, ^^ ^°^- 4 SSS3 so If 100 THE LAWS OF INSUKANCE. Whether demand requisite. Who to pay Payment of preiuiums must be made by the assured premiums. ^^^ ^^ j^.^ authorized agent. Payment by a volunteer is not performance of the condition in a policy (a). The insurer need not demand the premiums, and if the insured dees not receive the usual notice that a premium is due, and consequently omits to pay within the days of grace, he has no equity to recover on a poli. ■ which has lapsed or been forfeited by the ■;. ' . \, though such omission as aforesaid has been T , .J accidental and in no sense intentional (h). But a company cannot set up the failure of the deceased to pay premiums as a defence to an action upon the policy, where from the course of dealing between the parties the assured had a right to believe that notice would be given to him of the amount due when the company required it to be paid, and that a receipt therefor would be sent to the bank (<;). When an insurance extends over a period of time during which more than one premium will become payable, a certain number of days — called days of grace — the number of which is usually fifteen, are allowed beyond the due day for the payment of the premiums. If a loss happen during these days of grace and whilst the premium is unpaid, the assured will have no right of action (except by express stipula- tion) for the amount of the policy. Tlie legal effect of the days of grace is not to entitle the assured to recover for a loss during those days whilst the premium is unpaid, but to enable the insurance to be renewed and save the expense of a new policy and fresh stamps (d). {a) Wldtimj v. ^lasmchusetts Co., 129 Mass. 240. See also Falche v. Scottish Imperial Co., 34 Oh. D. 234, 3 Times L. R. 141. (h) Windus v. Tredegar, 15 L. T. N. S. 108 (H.L.). Thompsons. Insurance Co., 104 U. S. (14 Otto) 252. (c) Attorney- General V. Continental Life, 33 Hun. (N. Y.) 138. (d) Tarleton v. Staniforth, 5 T, E, 695. Want v. Bhmt, 12 East 183, Days of grace. In giving v. Staniforth existence ur accepted by fortunately 1 was in susf renewed ; fo: offered to p accepted, the therefore cle not liable " (< Tliis decii 1794, and in the loth of newspapers a insured in th or for a long sidered by ti beyond the t: After this ac and paid the year the office pay an increa; insurance. T his premises the expiratioi fifteen days. the foUovvins persons are t( duty, and sha day and from and shall, as the same, nial? said office witl: their respectiv thereof ; and i (e) THE PREMIUM. lOI I In giving judgment for the defendants in Tarletoamecioii.ys V. Stamforth, Lord Kenyon said : "No policy is to have "Sv^Jti'ml^ ^^ existence until the premium is paid by one party and 'enew'poiioy. accepted by the other. In this case the loss un- fortunately happened in that interval of time when it was in suspense whether or not the policy would be renewed ; for at that moment the plaintiff had not offered to pay, and of course the trustees had not accepted, the premium for the next half-year. I am therefore clearly of opinion that the defendants are not liable " (e). This decision vms pronounced on the 4th July 1794, and in consequence of it the Sun Fire Ofhce on tlie loth of the same month published in the public newspapers an advertisement stating that " all persons insured in this office by policies taken out for one year or for a longer term are and always have been con- sidered by the managers as insured for fifteen days beyond the time of the expiration of their policies." After this advertisement one Salvin effected a policy and paid the premium, but before the expiration of the year the office gave him notice that unless he agreed to pay an increased premium they would not continue the insurance. To this the assured refused to accede, and his premises were destroyed by accidental fire after the expiration of the current year, but within tlie fifteen days. The policy had been effected subject to the following article:— "On bespeaking policies all persons are to make a deposit for the policy stamp- duty, and shall pay the premium to the next quarter- day and from thence for one more year at least; and shall, as long as the managers agree to accept tlie same, make all future payments annually at the said office within fifteen days after the day limited by their respective policies, upon forfeiture of the benefit thereof ; and no insurance is to take place until the (e) Turleton v. Staniforth, 5 T. E. 695. &90 " li t { 1 - ■I ; . i j <•! So m =11 102 THE LAWS OF INSURANCE. premium is actually paid by the insured, his, her, or their agent or agents." When the loss happened, t' o plaintiff had not paid or tendered the premium lor another year, and the office resisted his claim. Lord Ellenborough, in giving judgment against the plaintiff, said : " The effect of the article and advertisement ia to give the parties an option for fifteen days to continue the contract or not, with this advantage on the part of the assured, that if a loss should happen during the fifteen days, though he have not paid his premium, the Insurer may office shall not after such loss determine the contract, fiu^nce attend ^ut that it shall be considered as if it had been ° u^^T °d' renewed ; but this does not deprive them of the power days of grace, of determining the contract at the end of the term, by making their option within a reasonable time before the end of the period for which the insurance was made. Where the premium is recei^^ed the effect of it is to give the assured an assurance for another year, to be computed from the expiration of the first policy, and not from the expiration of the follow- ing fifteen days. The office cannot determine the policy after the year during fifteen days of the follow- ing year in case a loss should happen during that period. But the office has the power at any time during the year of saying to the assured, ' We will not contract with you again, we will not receive from you the premium for another year ; ' and by such declaration the object would cease for which the fifteen days we^r allowed, and as no premium would be in su'^h case to be received, no indemnity could be claimed in respect of it. The consideration for the indenmity during the fifteen days is the premium which must be paid during that period, but when that cannot be any longer looked to or expected, the right to the indemnity determines also " (/'). Payment of overdue pre- Payment of premium after it is overdue, and after the (/) Halvin v. James, 6 East 571. 103 mium, iusurer and insured being iguoraut that life baa dropped. Acceptance by agent uf premium after days of grace. Debiting agent with premium. THE PREMIUM. tlwith of the life, of which both the insurer and insured were unaware, will not rehabilitate the insurance so as to entitle the insured to tiie policy-money {g). The local agent of an insurance company has no authority to bind the company by the acceptance of the l)reinium after the days of grace have expired. Mere debiting the agent with the premium by the company is not equivalent to a payment to the company by the assured (Ji). Acceptance of the premium by the agent after the Acceptance of fifteen days, and debiting the same to liim in the com- ^g'entXr''' l)aay's books, will not amount to evidence of a new ^"^^ "' ^^^''^^ agreement between the company and the assured {i). A promise by the treasurer of an insurance company Promise by to see the premium paid does not bind the company, for ''»®°'. '° p*^ lie cannot pay them out of their own funds, and if he ^''"""'"" agrees to pay out of his own pocket the remedy of the assured would be against him and not against the com- pany if he failed to do so (/.•). Where two insurance companies had cross accounts, Wh^t amounts or msurances mutually granted, and, by their course of *° P*?''^*'"^ "f 1 „r • 1 ,. . '' v-vy«icji^ KJL premiums. dealmg, premmms due on policies effected by one com- Cross paiiy with the other were not paid in cash, but a receipt '"''°""''' was given for each premium as if so paid within the time limited for tlie payment, and the premiums were entered as paid in the accounts, the accounts were settled from time to time, the balance struck, and payment made of the balance. A receipt was thus given for a premium on a policy effected by plaintiffs 72. (0 Aceij V. Fernie, 7 M. & W. 151, lo L. J. Ex. g. ofMylund, 5 Ir. Ch. 553. (/) JJiif am V. Ldfuiiette Mutual Fin', 85 Mass, (3 All.) ^60. The London "'imes L. U. Busteed v. Hest CO ■!i <•!- "M 1 y 104 TIIK LAWS OF IN.SUIiANCP:. with defentliints within the time for payment, and the amount was entered in account as paid by the plaintiffs. After the time for payment had elapsed, but before the next settlement of the current account, the life died. It was held that there liad been a payment of the premiuin sutHcient to keep the policy alive (/). And where the agents of an insurance company remitted to the company £ioo "for premiums," sucli sura being in excess of the amount due, and the com- pany had been urging the agents to renew ce.taiu lapsed policies, the contracts regarding which had been arranged, it was held that although the eouipany did not, in their books, specifically appropriate any part of the ;^ioo to the renewal of the lapsed policies, they must be taken to have received the excess part of such sum in rt npect of them (vi). Where, before the expiration of the previous renewal, the agent of the company, under the direction of the insured, filled out and countersigned a receipt which had been previously signed by the company, purporting to renew the policy for another year, and also, at the request of the insured, retained the receipt in his office, where it remained to the time of the death of the insured, it was held in America that there was a delivery of the renewal receipt which continued the policy in force (u). Last t. .emium Mr. Solari effected a policy of insurance on his life death not paid, with the Argus Insurauoe Company, and died without pai?by"'°''^^ having paid the last premium. The actuary of the mistako. company informed two of the directors that the policy had lapsed by reason of the non-payment of the pre mium, and one of such directors wrote on the policy Renewal receipt retained by agent. {I) Prince of Wales Assurance Co. v. Harding, i E. B. & £. 183, 27 L. .J. Q. B. N. S. 297, 4 Jiir. N. S. 851. Bxisteed v. Wat of Enghml Co, 5 Ir. CIj. 553. 177. (m) Kirlcpatrick v. tSovth Australian Insurance Co., 11 App. < as. (n) Tennant v. Travellers' Insurance Co., 31 Fed. Rep, U. S. I i TIIR I'liKMIUM. in pencil the word ' lapsed." Subsequently, liovvever tlie insurance-money was paid to the executo- of Mr' Solan, the directors who drew the cheque havin rotunii'd. liability under such a contract by repaying the pre- miums which he has gained by the contract («). Such a case arises Mhere the policy is made with a corporation whose powers are limited by statute, charter, articles of association, or otherwise, and such powers are exceeded. Uefusal to receivo premiums. Uemedy. ('/) ^f '"//'"''' V. Qui III IiiHuraiice Co., I Han. (Now Bnins. ) 432, 439, per Ritcliio, (".J., now C. .f. oC Supreme Court of Ciiuada. (»•) ii "■^..34 Vict. c. 35, s. 6. _ _ (.■*) iWKiv V. Fhii'iil.-, 26 Mi.ssouri 383. Ihiij v. Voiimvthnt Co., 45 Conn. 480. Fforie mill Cattle, <0r., Co., 34 Benv, 291, - - --- - ^- ■' -- " ' "eiKon, 480. L.J, Ch. 749, 10 W. R. 816. (t) Liiifiiril V. I'roriiictiil Hon 10 .fur. >i. S. 1066, II L. T. N. S. 330, 5 N. \\. 29. Veiih]) \. Beua lie, Co. 7 (Jnint (U. C.) 130. Day v. Connecticut Co., 45 Conn. 4Ji( ((() He I'ha'ni.r Co.. Hvniess uiul Stock's Case, 2 J, & H. 441,31 L. ( 107 ) IS CHAPTER IV. TlIK KISIC. TiiK most important part of insurance is determination Fixing tho ot the risk. Ihe insurev can only adjust his premium •""""""»• piolitiil)ly if he knows accurately the nature of the risk which lie IS asked to take upon himself ; and the assured, if he withhold from the insurer any necessary (lata for estimating the nature of the risk, which he ouglit to have supplied to the insurer, will, when a loss occurs, Hud that he has been insured only in name and that by his own inadvertency he loses not only his property but probably also his premiums (a). For the .7..h„„ ..,, rule that the utmost good faith must be observed which •'''"'^*'"" ' s peculiar to this contract, re.iuires that the insurer iusur^r' should be as well informed as the assured of all the circumstances constituting or increasing the risk which IS ottered to the insurer (b), and if he is not so intormed in fact, from whatever cause— ^.y. an alter- ation u the risk between the date of the promise to insure and the tender of the premium (c), he is not liable to give any indemnity. Most policies of insurance other than marine, and Time policies many marine policies, are time policies, taken out for a hxed and certain period of time. Under such policies the assurance expires the latest moment of tlie last day therein named (d), unless a special time is ^ (a) >S'!hbald V. Hill, ?. Dow (H. L.) 263 (0) ( uk pa- Sheo, J., in Ihites v TTpih!n r tj ^ r> t. (c) Cionimg v. Iloare, i Times h. l\. 526. 68l?isT k'-gfr'' ""- ""• ^ '"■• '''' ^9 ^- J- Ex. 189, 22 L. T. N. S. 09 ^ issa «l|Ui' io8 THE LAWS OF INSURANCE. Voyage policies on laiide named in the policy. And even if the days of grace are passed, many insurers will, if no loss has happened and no increase of risk has occurred, allow the policy to be rehabilitated on payment of the arrears with or without a fine for delay. Sometimes attemps are made to construe time policies as voyage policies (c), but the Courts have not encouraged them. Voyage policies against land risks are sometimes taken out, but are not so common as time policies. They cover the things insured between certain geo- graphical limits. Practically they impose upon the insurer the liability of the common carrier between the two ends of the journey. The risk begins in such policies when the goods start or get into the camiers hands (/), and continues from thence until arrival in the hands of the consignee or other specihed determination of the transit, but it will not continue during a devia- tion {(J). In some cases the carrier makes himself the insurer. Thus railway companies will grant insurances on goods carried by them for the safe carriage of which they are not liable under the Carriers Acts. Xo ques- tions as to dajs of grace or the like can arise on voyage policies, since under the contract the liability lasts for the whole journey. The real question is, what con- stitutes arrival ? A common case of voyage policies on land risks is that of railway insurance tickets for a par- ticular journey. Undoubtedly these would not cover an intentional deviation from the route for which they were issued, but would cover risk of an accident caused by the points going wrong, and diverting the train from the direct route to a branch line. [(■) frowhii V. Cohen, 3 B. & Ad. 478, I L. .1. N. S. K. B. 158. JmjK V. Kennard, L. R. 7 Q. B. 78, 41 L. J. Q. B. 17, 25 L. T. N. S. 932, ?o W. R. 233. (/) Boehm v. Coovibe, 2 M. & S. 172. {([) Pearson v. f'ohiinercial Union, 1 App. ( 'as. 498, 45 Ij. J. C. V. 761, 35 L. T. N. S. 445, 24 AV. R. 951. But see CharUstoini liuihoad Co. V. Fitchbnrg Mutual Fire, 73 3Ias8. 64, wliere caniages in use nii n railway wern held to be insureii on a branch not owned by the as.suieii. THE ELSK. 109 The commencement Of the risk in the absence of Before delivery special stipulation is not conditional on the delivery to "^p"""^* the assured of the policy, provided that the first preiniaiu is paid, and that the contract is in all other respects complete, and in such a case even death before complete delivery of the policy is no bar to recovery unless so stipulated (A). And where a fire occurred after a deposit was paid to an agent, but before the policy was issued, the company was held liable (i). But it woukl have been otherwise if the deposit had Liability not not been paid, for " an agreement to undertake to ''''r^'''^ relieve against risks necessarily assumes that when it "-»-"''' comes to be fulfilled by issuing the policy, the events """"^''• are still risks, and does not apply if before fulfilment and there being no delay for which the insurer is alone responsible, the events have been converted into certainties " (k). The risk taken is entire. If it has once attached Kisk entire. no apportionment of premium can take place even if the pohcy subsequently becomes forfeited (/). Questions occasionally arise as to whether the risk is taken from year to year or from quarter to quarter (v^O • and in a case where, the annual premium being payable by quarterly instalments, with a proviso that if the assured should die before the whole of the quarterly payments become payable, the company should retam from t)ie sum assured sufficient to pay the whole of the premiums for that year, the party cl^ed witlini the first twelve months after the third {!•:) The Sickness and Accident Tnsurance Atsorinfim, v Ti. /-» . -Occident Insurance Cornnmtlnn ' A 'V ,1 ' ' v- J«c fr'e»erai Lord President. ^'"^'''' «'""'' ^9 See. L. Rep. at page 840, per the nW" fcw I ! !P (h Tiirie V. Fh'tcher -> '^a.,.,, fi/qo ,, 5 , -tr. , ("0 \Vant V. Blurt^; Ea^Ugj ' ^^ '"^ ^'''- '' ^5" 1 , J. . if* liO THE LAWS OF INSURANCE. Policy — covers several losses up to amount insured. quarterly instalment was due but b.efore it was paid it was held that the assured could not recover, as the instalment had not beea punctually paid (n). A policy for a year covers all losses within the year up to the amount named. If half-a-dozen small fires happen, the insurer must pay the damage on each. And it would seem that if a fire to the full amount happened for which the assured was indemni- fied from other sources, liis policy would still be alive for the rest of his year and in case of another fire (o). This view must, it is submitted, be correct, for it would seem abstird to contend that if a pair of curtains had been burnt and paid for, the whole liability of the insurer was thereby extinguished for the year (p). The only mode of extinguishing liability during the year is actually paying damage to the full amount insured. On the other iiand, as soon as the maximum sum insured is paid in respect of a loss, the insurer's liability is exhausted, although the year has not expired. Termination of In fire policies the insurers frequently reserve the right to terminate the insurance either at the end of a year or period for which a premium is paid, or at any time on repaying the unearned proportion of premium. If they elect to terminate before, but do not repay the premium till after a fire, it would seem their election is still valid (q), as the notice may operate from its delivery, and need not name a future day for termination (r). Notice to the assured's agent for m ii ' {n) Fhunix Life Assurance Co. v. Sheridan, 8 H. L.C. 741;. -,i L J Q. B. 91. 3 L. T. N. S. 564, 7 Jur. N. S. 174. ^ ' ' ' (0) Smith V. Colonial Mutual, 6 Victoria L. II. 200. See Cmvleii v Cohen, 3 B. & Ad. 478, i L. J. N. S. K. B. 158. (p)_ See Crowlei/ v. Cohen, 3 B. & Ad. 478, i L. J. K. B. 158 (1S32), deciding against a contention that the policy was exhausted when goods to the amount named therein had been carried in the plaintiff's canal barges. (q) Cain V. Lancashire, 27 U. C. (Q. B.) 217. (»■) Jhitl. 453, THE EISK. Ill procuring the insurance will usually be insufficient. Under ordinary circumstances the notice should be given to the assured himself (s). The duration of a life risk is purely a matter of Duration of contract, and it depends on the terms of the policy ''''^• under which each insurance is made whether the insurer can, or cannot, terminate the insurance and refuse further premiums. The dates between which the policy is expressed to endure may be exclusive or inclusive, according to the form of expression used, and the context and subject- matter. In old policies the words "for one year from the date" are found, and that raised a doubt whether the first day was exclusive or inclusive (t). At present all well-drawn policies name the days when in- surance will begin and end, and whether such days are exclusive or inclusive, and even the hour of the day at which the insurer's liability ceases. If the hour were not specified, the insurance would continue to the last minute of the day, for ambiguous and doubtful phrases would be construed against the company. "Verba fortius accipiunter contra proferentem," The effect of the word " from " in such an expression Word "from " as "for twelve calendar months from 24th Nov. 1887" is to exclude 24th Nov. 1887, and to include 24th Nov. 1888 in the period of insurance (u). A limitation '■■ from the time of damage occurring " "From the means from the occurrence causing damage, not from *'™® °- ^»™»ge tlie time when the whole consequent damage was °"'"'"°^' " suffered.(,/) at least when the occurrence was apparent. (s) (jrace x American hmirance Co., 109 II. S. (2 Davis) 278. ^'i 2 .Tl A %^''fU "" ^°^P- 714, I^ord Holt's %iew in Howard's « , 2 Salk. 625, I Lord Raym. 480, not followed. Isaacs v. lioyal S\^'!T^. ^ '• ''^^' 39 L. -T. Ex. 189, 22 L. T. N. S. 68?, (») Sonth Staffordshire, cOc, v. Sichms, d-c. (1891), i Q ]} 402 51 >• ^°';' 5° h' •^- .?• ^- 47- The Richness, Icr! J itfj' JfOenerai Accident Corporation, 29 Soo. L. R 8:56 [x) Gladden v. Lancaster County, 65 Fed. l!ep. fj. H, 188. CS9 I L <••- 112 THE LAAV.S OF INSUKANCE. Word "until." The word " until " in a policy of insurance includes and extends the insurance over the last day of the period for which it is effected. Thus certain goods were insured against fire by a policy in which the insurance was expressed to be " from the 14th Feb. 1868 until the 14th Aug. 1868, and for so long after as the assured should pay the sum of 225 dollars at the time abcve mentioned." The goods were burnt in the night of 14th August 1868, the insurance not haviuf^ been renewed, and it was held that the insurance continued during the 1 4th August, and the loss was therefore covered by it (,ii/). Life policies. If a man receives a mortal wound or contracts a risk. mortal disease within the period for which the insur- ance is expressed to continue, death must ensue within such period to enable the policy-money to be recovered. Death must occur during insurance. II Cn pres doctrine inapplicable. If it occur ever so short a time afterwards, the liability of the insurer is extinct {z). Life policies being in most cases for whole life, the question arising is usually not whether the death is within the time, but whether it is within the terms of the policy. But the other case occasionally arises. Men have sometimes been too ill to think about business when the time for paying their premiums comes (a\ and if they die of the illness without the premium having been first paid, their representatives are at the mercy of the insurers. The Court will construe the policy according to its express terms, and will not hold it sufficient that the conditions therein contained had been complied with as nearly as maybe. In Want v. Blunt (h) the stipulation was that the assured should pay the premiums on a certain day with fifteen days' ((/) Jsaacs V. Boyal Insurance Co., L. R. 5 Ex. 296, 39 L. J. N. S, Ex. 189, 22 L. T. N. S. 681, 18 W. ]?. 982. iz) Lochjer v. Ottley, i T. E. 254. In accident policies it is otlierwise by express stipulation. («) Want V. Blunt, 12 East 183 (i8io\ {h) 12 East 187. THE EISK. IIJ grace. He died within the days of grace, and his executors paid the premiums within them. But the Court of Queen's Bench interpreted the policy as mean- ing that the assured must be alive to pay the premium, and that the policy had expired in the ordinary course on the day when the new premium fell due (c). i All facts and circumstances diminishing or iucreasin^r Elements of the likelihood that the event insured against will happeS *''^"'''' soon or later are elements (d) constituting the risk to be undertaken by the insurer. In insurance against fire an exact (c) description of Feriis ab intra. property to be insured is most material in determining the risk (/"). A wooden house in a town is far more likely to be burned down than a brick or stone building. A house in a street which has a party-wall running right up to the roof is not in the same danger from fires in adjacent buildings as one not so divided off. A detached house is only subject to risks of fire from within. And some articles, such as gunpowder and petroleum, are only insurable at very high rates if insurable at all, while iron and stone in an fronmaster's or stonemason's yard will rarely need insurance at all. Insurers will not usually insure against the in- herent vices of anything, sucli as liability to spon- taneous explosion or combustion (y); so if a horse is to be insured his vices are elements in the risk, as would be the state of a haystack. 5 f. ^ ((•) In America a case occmred where a man on his way to nay his premium was paralysed and died. Bowelly. AmckerbocjJ, 4 Afn.R,p ^h^% n V 5 , V°"''f' not unanimously, upheld the policy. (rf) Seei%d V i>«iot«, 3 Canm. 133. Taybr y. Dunbar, h. R. 4 f -P. 206, 38 L. J. C. P. 178, 17 ^V. R. 382. (/) Xewcastle Fire Co. v. SP3Iorran, 3 Dow (H. L.) 255. Quin v fu7i iT'Tj t\! '^"'''' ^ P^'^y^ 316 ir.). Stales Tcol:, I 11. & N. 320 26 L. J. Lx. 113, 28 L. T. 161, 3 Jur xN. S. 45, 5 W. R % i.'^ i87:irt;:T;8' ^- ^ "" '''• ^ ''' ^•'''' ^^ ^- '^^ 362; N,'«! 3?2f 2S°w!' ifTg^'^'' ' "^^''^ ^'"'' '9^' 4^ ^- J- ^- ^- 4°9. 36 L. T. H 6i so , \\ -< <■>!' •"••*■ <•»»,. "1 114 ElKnmiilH of tliu risk. 1 i LocnUiy had regard to. Lifo policy loc«l. TIIK LAWS OK INSUKANCE. When a houHo is insured, not only its clmractor and couHlruction tiro (ilcniuMitH in tho risk, but also its loiMvIily ; for an insuranco aj^'ainst Hn! nocosHarily Ims rojifartl to tlu- locality of tho subject-matter of Llio policy, tlic! risk boinj; ]»robably dillbront acoordiny' to tho place whore the subject of insurance hai)})ens to be (//). This has been held of a lire policy for three months on a ship in wi-t dock with liberty to ^o into dry dock, and the assured failed to re(!over because tlu'. vessel <,'ot outside the permitted limits, and was there burnt (i). Any special fact as to neif^hbourinjj; buildings which would increase the risk must also bo disclosed ; <•.;/., tlmt a fire has just ha])pened next door (/•). Tf the tiling' insured is jJersoiuU property, the removal of it usually ends the insurance (/). There are many cases of land insjirance on mov- able things, such as railway stock, carriages, agricid- tural implements, and goods in .ransit. In such cases the lujsition of tho thing is not so essential to the risk as in insurance on houses and furniture, liiit even they are insured within certain limits, and if burnt or lost outside these limits, there would ho small chance of recovery (/). i* Md in the case of a life policy expressed to insure against risk in a certain latitude, if the assured go to a more insalubrious latitude and there die, his repre- sentatives cannot recover on the policy (vi). (A) Pcorumi v. (hmniercial (/'nioii, 1 Apt). Ciis. at 505, 45 I;.. I. ('. 1' 761, 35 I,. 'I'. N. S. 445. 24 W. R. 951. RoUand v. North Jlritlsluind Mcrvaiitili', 14 Lr. Cim. ,)ur. 69. M'iViire v. Lmicaahirc, 6 Ir. .Iiir. N. S. 63, 72. (() (ioyi)i'i)i V. Jland-htHaniJ, Tr. L. \\. 11 C. L. 224; and as to tho Ainevii'iin views on tlic subject see llutjlinh v. Fraiildin Co., 54 Am. l{t'p. 377, ami SiKiis V. \ort/i- Wfnttrn Co.. 54 Am. liep. 631. {/c) Bute V. Turner, 6 Tmint. 338. (/) Pearao)) \. Commereial I'liioii, iihi siipnt. Grant v. Ktiia,^ <]\\\: N. S. 70s, 15 Moore I'. V. 516, 10 W. H. 772, 6 L. T. N. S. 735. ()h) See Jieed v. J.tmeastfr Fire ( 'o., 90 N. Y. 302. Fouler v. iSeotlUh Equitable, 28 L. .1. Ch. 225, 4 .lur. N S. 1 169, 7 W. II. 5, 32 L. T. 119. ...,^„ MS TJIK lUSK. HI... I nev.r was f„ ,,i|,l,„r, l,„t in ,/,. Tl„. ff' »™" ' ii6 TIIK LAWS 01-' INSUUANIJE. Ooods covorod aMourtaiiiabU) at dat(> of tire. If goods not. BptH'itlud, fli'o polioy covers all to aniouut uamnd. If necessary either to insure (if desired) during removal, if it be to a great distance, or to make the carrier take the risk of tire. Whether a poHcy covers goods in a place at the time of a tire, or only those which were there at the tiiiu; when the policy was made and continue to be there at the time of the fire, depends on the wording of the policy or whether the goodfc are generally described or specilically indicated (y). Following this rule, the Irish Exchequer decided that new hay put on a rick which had been specilically insured, in suVistitution for hay which was thereon at time of insurance, was not within the policy (r). Where no specific description is given it would seem that a fire policy will cover goods in the place named to the amount, regardless of the bringing in or taking out of particular (s) articles, and taking account only of the quantity on the premises at time of the fire and the interest of the assured therein. But an ordinary tire policy is not like a merchant's iioating policy in the mode in which the damage is calcu- lated (t). The method indicated in Crowley v. Cohcti {u) only applies to policies where the risk is in several vehicles of transport. Nor will an ordinary household fire policy include the property of visitors or servants. The risk varies as the mode of nser, and insurers classify tire risks in buildings very much according to the use to which they are put. f ^ American Iimira)ice v. Joneph, 9 Lv. Can. Hep. 448 («) Butler V. Standard Fire, 4 U. (\ (App.) 391. British American Insurance Co. v. Joseph, 9 Lr. Can. Kep. 448. Crazier w.Phdnix Co., 2 Han. (New Brims. ) 200. (0 Thompson v. Montreal (1850), 6 U. C. (Q. B.) 319, per Ivobm- son. C.J. Peddie v. Quebec Co., Stuart (Lr. Can.) 174 (1824). (u) ^ B. & Ad. 478, I L. J. 0. S. K. B. 158. TIIK UISK. 117 It is sufficient to state the use. Tlio assured need irsor of subject not communicate facts relating to the general course of "' '"""^^c- tlie particular trade for which the premises insured, or containing the things insured, are used, as all these things are supposed to be witiiin the knowledge of the insurer (x). That a house is empty also increases the risk, i.suranco on J.ut this would be rather because the house while ^Td"' vacant would be nnguarded, than because such occu- "" '°^'' pancy conies under the head of user. In America leaving a house vacant is not deemed a suHicient ground for avoiding a policy, except where special stipulations are made to that effect (y) ; and even where the policy contains stipulations as to occu- pation, mere temporary absence is not deemed fatal to the claim of the assured {z). Where a statement of mtention to use the thing insured in a particular manner did not amount to a warranty that it should only be so used, the assured could recover although thero 'had not been such user (a). The presence of a steam-engine on premises must be stoam-eugine stated, but when it is known to be there, it need not be "^°'' °^- confined to one specific use unless so stipulated ; and a mere increase of danger in a new method of using a machine will not vitiate the insurance unless there be a condition to that effect {h). In Baxemlalc v. Harding a steam-engine was specified in a policy, but subsequently it was attached to a horizontal shaft which was carried through a floor and connected with otlier machines erected after the insurance was effected. (y) Cattliny. Sprimfiehl Im. Co., i Sumner (U. S.) 434, per Stor,. J ^ hhuddetonv. 8,„i Fire Office, 54 Am. rL. 379. ^ •^' . >?i^W:1r7^;"L7Ts. 735.'5 ^-- ^- '■■ 5'6, 8 Jur. N. S. (6) niutehea,/. v. Price, 2 Or. M. '& R. 447, j Gale ici l/«„«// „ 70s ••i- j.-ft^ (!♦ •^m& I Il8 TllK LAWK OF INSUKANCK. The insurers were unaware of the erection of these machines, but on tlie premises being burnt the assured recovered from the company (<;). Aitei-aiioiiH. Where alterations or new erections are made and assented to with or without extra premium, damage by lire originating in the new buildings will be within the policy {d). And under an ordinary policy the insurers will be liable for a house altered during its currency if such alterations do not increase the risk. liut there nuiy be no liability for a tire occurring during the pro- gress of the work, as what is called " builder's risk " is materially greater than that of an ordinary dwelling house. Iield that th »y- Exceptiuual use of promises for purpoHos other thau specitied iu policy, even thougli risk increased, does not prevent HSsured recovcriug. In the absence of fraud a policy is not avoided by the circumstance that subsequently to the ell'ecting of the policy a more hazardous trade has without notice to the company been carried on upon the premises. Thus, where premises were insured against fire by the description of a granary and " a kiln for drying corn in use " comumuicating therewith, the policy was to be forfeited unless the buildings were accurately described and the trades carried on therein specified ; and if any alteration were made in the building or the risk of fire increased, the alteration or increased risk was to be notified and allowed by indorsement on the policy, otherwise the insurance to be void. The assured carried on no trade in the kiln except drying corn, but on one occasion, without giving any notice to the insurers, he allowed the owner of some bark which had been wetted tt • diy it gratuitously in the kiln, and this occasioned a tire b} which the premises were destroyed. Drying bark was a distinct trade from drying corn, and more lia^cardous, and insurers charged a higher premium for bark-kilns than corn-kilns ; but it was (•) Baxendtilr' v. MarcUnf/, Hupra. a) Jlackeiv.'e v. Van /Sickles, 17 LT. C. (Q. B.) 226. THE RI.SK. held that the assured was not prochided from recover- in- ., 14:^!';'^" '■ ^^''^^''•'''- 6 ^- & E. 75, 6 L. J. N. S. K. B. 106. i Nev. M n^^'^S-- '' '^ ^- -^^ ^'- ^'- 299- 120 THE LAWS OF IN8UKANCK. Title to tbn property. port niid the liak ends. The Imppening of uuuiy pro- vious lava on the assnred'a promises goes to character and nmst be disclosed. The title to the property of the assnred is to soiuo extent material to tlie risk : for an insurance without interest or title is an inducement to arson, oft'ering prospects of i)rolit. This, however, is met by the statute 14 (Jeo. HI. c. 48, precluding the insured from recovering beyond his interest. In America, in i\w absence of the statute, the Courts have met the dilli- eulty by invoking the principles and policy of the Oonnnon Law (/). Insurers usually denumd to be informed whether the interest in the house or property insured amounts to total or partial, absolute or limited, ownership. But in this country, as regards houses, precautions are the less necessary, owing to the power of reinstatement given by s. 83 of the Party-walls Act, 1774 (/.;)• This section reduces the risk, as the insurance-money may, under the provisions of this Act, be intercepUnl, and a )ii(ila fide insurance may thus become unavailing. The valuation of the things insured is also material to the risk, as, if it is excessive, it affords the assured a prospect of gain by the perils. But it is less material in tire than in marine policies, as the policy is open and not vahied, and valuation is not very important until after a loss*(/). What the iiro What may or may not be included in a lire risk very cover*. ^" much depends npon the terms of the policy and con- ditions. lUit the Courts have laid down certain rules as to the construction of such policies as have come ((■) Warnwl v. Davis, 104 V . S. (14 Otto) 779. \k) I4(it'0. III. c. 7S, and ciili' infra, cap. im Ifcinstatemeut. (I) lo>iiih.t V. re»,ln\ 1,. H. 9 Q. B. 531, 43 I-'- J- Q- B- 227, 30 I.. T. N. S. 547, 22 W. h\ S84. Britton v. Jioyal, 4 F. & F. 905, per Willen, J., 15. L.T. y. S. 72. THK nrsK. J 2 hofore thorn, by the linht „f which aubseciuent policies hftvo been drafted, and which will control all such instruments in the absence of contradictory or varying stipidations. The word fire, i.i contracts of fire insurance, is taken What the word in Its ordinary signiJication. It is not confined to ",".""'"• any technical and restricted meaninj,', which might be ' " "'" applied to it on u scientific analysis of its nature and l-roperties, mn- should it receive that nenend and ex- tended signification which, by a kind of figure of speech, is sometimes applied to the term, but it"should be construed in its ordinary, popular sense. Unless tliere be actual ignition, and the loss be the effect of such ignition, the nisurers are not liable ; c.q., wiiere sugar was spoilt by great heat thr.nigh a register bein<' closed, but there was no actual ignition, the company was held not liable {m). There must be actual ignition, and the loss must be the efrect of such ignition. Not that the identical property to which'' the damaK. jEx. 71, 37 J,. J. £x. 73, i'l\ft(i>}le!f V. Weslcni fnmnnu-e Co '7V,;^;S. 513. 16W. I{. 369. (r)Meiiv. Wester,, Imvrance Co., ubi .oud '»> IVaumtlantic Mre v. Dor...,,, 40 A , K 40^ "«^c... V. Merchants, 11 I'e/erffr's wfs ^ '^• Jl-L'.i'an V. Uuthridge, 13 Mooro 1'. C.' 304,' 8 \\\ l\. •wt (0 265. 124 THE LAWS OF INSUKANCE. Loss. Proximate cause. Excessive application of heat in manu- facturing. Lightning. was granted to a vessel plying on tlie Canadian lakes and rivers, without striking out the conditions inapplicable to the vessel, but adding that the provisoes, &c., should take effect so far as applicable, tlie Privy Council hekl that the gunpowder condition applied and had been broken (,r). It must be shown, if required, that the loss was proximately and immediately (not remotely) caused by one of the perils insured against (y). Usually this is a question of inference from the facts proved at the trial, or interpretation of terms used in the policy (z). Where the insurance is against fire, damage by exces- sive heat applied to manufacturing purposes, but with- out ignition, is not within the policy (a). Nor is damage by hot water a tire loss within a marine policy (/;). Even the danger of liglitning is excluded from the firo risk, unless it actually ignites the insured property or part thereof. Electricity is not fire in the ] ^pular sense, nor is damage caused by it necessarily damage by ignition. Policies usually give the assured notice that the insurers will not take the risk of damage by lightning unhiss it fires the subject-matter (c) ; and this not to contract themselves out of a Common Law liability (d) but simply to protect themselves against uii- (.v) Beacon v. Oihb, i :Moore P. C.N. S. 73, 7 Jiir. N. 8. 185,77 L T. N. S. 574, II W. R. 194. (?/) Marsdenw. City ami ('onnhj Aiinur• 329, 45 L. T. K. S. 411, 29 W. R. 850. Schmidt v. New York Inuon Mutual, 67 Mssf, (! Gray) 529. id) Midland .insurance Co. v. Smith, supra. Gove v. farmers Mutual Fiv: Insurance, 48 N. 11. 41. TlfE KrsK. 129 for arson, and tlie jury must be as fully satisfied that he cnme charged is n^ade out as would warrant thdr hiulnig him guilty on such an indictment. This i the rule in Great Britain, followed in Canada (.) The American Courts incline to hold that evidence not strong enough to support a conviction for arson Tsuiti (/) ' """°' '' ""''''' '''' ^^-- -^ the It was said by Lord EllenhnrnM<»l. ;„ „„ • pn^r. "Tf H>. Is^ " Ji'ienDorough m an insurance F(,» „-,k. wb.i ci.se, It the ship is destroyed by fire it is of „„ i»«l»,. oS\l^'''^- ^V- ,^'^'5^«'* V. Queeu Lisuranee, 10 Lr. Can. Jur. 227, and cases already cited. tom.^/5f '" ''• ^^'""'^^' ""'* '''^' ^'- '-^9. per Gibbs, C.J. Pothier, m ijm 134 Sue aud labutir olause. C(J8t of au effort to savp, on whom it falls. 1q what ahan cost borne. THE LAW.S OF INSURANCE. Insurers can, of course, and sometimes do, exclude all liability for loss by theft during a fire (d). The sue and labour clause (r) in marine policies is occasionally introduced into fire policies (/). It has nothing to do with salvage in the ordinary sense of the word, since salvors have a lien on things saved and no other claim whatever (5'), and the sue and labour clause would justify claim for money paid and work and labour done to save the insured goods, even if nothing were .saved. The aim of the clause is to induce the assured to do all he can to save the insured property by promising to recoup him for expense reasonably incurred for the preservation of the thinj,' insured from loss in consequence of the efforts of the insured and his agents (h). The condition in Thovipson v. Montreal Commnyii) was that in case of removal to escape conflagration the insurer would contribute rateably with the assured and other insurers to the loss and expenses " attending the act of salvage." ()f this clause, liobinson, C.J., there said : " That clause was surely not intended to deprive the assured of any portion of his claim under the general terms of his policy, but is a condition wholly for his advantage, and intended to afford him a remedy for something in addition to the compensation for his goods destroyed, injured, or lost in con- sequence of the fire. The object of it is no doubt to encourage the assured to make every exertion to save his goods by holding him out the advantage of being ((/) Webb V. Protection Co., 14 Missouri 3. (e) Kidston v. Empire Insurance Co., L. II. i C. P. 535, 35 L. ,J. C. P. 250, 15 L. T.N. S. 12. (./■) Thompson v, Montreul, 6 U. C. (Q. J5 ) 319. (fl) AitchisoH V. Lohre, 4 App. Cas. at 746, per Lord Blackburn. Reported also 49 L. J. Q. B. 123. 41 L. T, N. S. 323, 28 W. R. i. See Fcnvood V. North Wales Mutual, 5 Q. B. D. 57, in case of partial loss, 49 J. J. C. P. 593, 42 L. T. N. S. 837. (h) Aitchison v. Lohre, 4 App. Cas. 765. Thompson v. Montreul, 6 IT. C. (Q. B.) 319. (/) 6U. C. (Q. B.)3t9. THK RISK. ,,- pioportior-ably reimbursed for tlie expenses which he nmy incur. Thus, if he is insured for /;2ooo in out' ottice, and for ^'looo in another on goods wortli .^5000, and to avoid damage of an imminent fire he reinuves all his goods, as it turns out, in safety, the two insurers woukl between tiiem contribute three-fifths of the cost of removal " (/i). The law laid down in tliis case as to a fire insur- ance seems quite in accordance with the view of Lord Blackburn in Aitcheson v. Lohrc (I) as to the effect of the sue and labour clause. Hence it could never be contended by an insurer that if nothing was saved by such removal he would not be liable for the cost of an effort to save it in addition to the amount of the policy, wlien a clause such as tluit above mentioned was inserted in the policy as an inducement to salvage. But these rules do not of course apply to removal Whou .omoyal when the assured is changing his home or his place of "^ ""''• business. In such cases the consent of the insurer is always Consent of necessary, since the risk is presumably altered, and JeZ"^/"* nuist be testified in the manner stipulated for in the necessary, policy or prescribed by the charter or other instrument or by the statute constituting the insurance corporation. It need not be in writing, unless so stipulated or pre- scribed. The usual condition is that the insurers' assent shall be evidenced only by written indorsement on the policy. They are not under any obligation to assent, and, if a fire happens before their assent is indorsed, there is no means of making them pay for it (m). Even where consent has been obtained, the risk is not Goods not transferred till the goods are removed, and they are not L°!S."*''* t*i-i & SatsM &«3 (k) Thompson v. Montreal, 6 U. C. (Q. B.) 319 (1850) (0 4 App, (^'as. 764. (m) Xoad V. J'ronnrial, ,C;:, Co., 18 V. C. (Q. h.) ^84 X36 No protection mtil complote removal. M'Clurc V. Lancashire discussed. THE LAWS OF INSUKANCE. covered in the process of removal, being then neither in the old nor in the new place (n) ; for the assent does not turn the policy pro trmpore into a voyatre policy, and the risk of removal is on the assured or his carrier according to the terms of the contract of carriage. Only one risk is contemplated, except by special stipulation. So assent to transfer will not amount to a contract to cover goods in both places until goods to the full amount insured have been removed (o). On this it may be observed — 1. That if the removal is not completed and the risk is of the same character in both places, the insurers, by their assent to the transfer, relieve themselves from liability as to either the part transferred or that which is untransferred, though it would seem that the very object of their assent was to continue their liability in such an event. 2. That though to hold otherwise would be to ma'-e the insurers liable to a risk in two places, the risk would be of the same character in each place, and the policy would only be divided into two smaller policies at the same rate on like risks ; and if the liability were held to exist in both places it would work no unfair- ness, since it would cover goods on their arrival at the new place, and until goods to the value within the policy had there arrived would continue on goods in the old place to an amount equal to the balance not at lisk in the new place. 3. That it was enougli in jrClurc's Case, for the pur- poses of the decision, to say that goods to the full vahie covered by the policy had been transferred. (n) Kumie v. Ainerican Kvchanj/e Fire, 41 N. V. (2 Hand.) 412. White V. Uepiihlic, 57 Maine 91, 2 Am. Rep. 22. (o) M'Clurc V. Lanrushire, 6 Ir. .Jur. N. S. 63. horses, or sto THE RISK. J-- Sometimes policies are issued covering property not only in warehouses, but in transit through the streets within limits defined or undefined {p). A policy on the goods in a dwelling-house, and cover- Americau case ing wearing apparel, has been held in Iowa to protect 1^^« the assured against loss by its destruction or injury ' whilst It IS being worn (ry). This, however, would seem to be wrong, because the risk accepted under a fire policy is essentially local, and depends upon the struc- ture and conditions of the building in which the croods insured are contained (r). ° It has also been held in America that description of Horses, &c horses, or stock or vehicles (6-), as kept in a certain place, does not preclude from recovery if they are in- jured elsewliere, by a risk insured against. It has been held in Ireland that when locomotive chattels out- cliattels, such as agricultural implements, carts &c «>f pJ«=e are msured in a certain place the owner cannot recover ^otZ^Zt for tliem, if they are burnt outside the limits of the place named (0- They are insured only whilst in the specified place, and while out in the fields or else- where are at owner's risk. But on return to the speciHed place the risk re-attachea. But an insurance on such generally, without mention ot place, would cover them wherever burnt. The American Courts seem to a certain extent at variance with each other on the subject of removal. Place not meutioued, goods pro- tected any- where. Removal of property insured. 0*) hyn-rhild V. Li-crponl and London, 51 X. Y. 6? Mcn-M- v yec/H«(H(«, 54 Penn. St. 27. • '■• ^5- Men itk v :|| sas: Saop •Slaai ) <\ t>., 54 Am. Hep. 377. («) M'Clnrey. Gerard Fire and Marin, at, lovix mo ,-> \,n p 249, and cases there cited. ' «'. 4j 'owa ^49, 22 Ain. Eep. (') 'lormun v. nand-ln-Hand, I. I{. n, (j. |,. 224. 138 TIIK LAWS 01' IN.SUHANCK. Tlie rule generally adopted is this : " Tenipormy removal of property, occasional or habitual, in pursuance of a use which is a certain necessary conse(pience arisiu" from the character of the projjerty without any chaiure in the ordinary idace of keeping, will be no defence to an action on tlie policy " (w). In view of this, the words " contained in " have been interpreted with reference to the nature of the property to which they are applied ; and it has been held that a carriage insured, as contained in a certain stable, but burnt while away for repairs, was at in- surer's risk (.f). To v/imt The liability of the insurer is limited to the amount extent the risk i. i • i . i • • . , , is taken. i^i" vvlucli the i)reniium is paid, but the obligation incurred is not to pay the whole sum, but only the damage done by the peril insured against, not exceeding the sum insured. The insurer, if property is under- insured, cannot, independently of special agreement, insist on paying only a sum bearing the same ratio to the damage as the amount insured bears to the full value of the property insured (//). This would be penalizing a man tor under- insuraiice. PvoportiDii payable \vln>rt' nudt-r-iusur- aucc. Where, however, by a fire policy ^cco was insured (»n twelve months' rent of buildings, such insurance to cover the rent of the buildings from the time of fire until reinstatement, ami in the proportion which the period of untenantableness should bear to the term of rent insured not exceeding twelve months" rent, and th(! buildings were damaged by lire and remained untenantable for some months, it was held by the Court of Session in Scotland {dubitantc Lord liutherfurd Clarke) that the insured could only recover an amount ..,^:M (It) /.i/ons V. Providence Wanlu'nijton Co., 43 Am. lli>p. 34, note. (.1) See J.oiiiloii (iiiii Laiicashirf'Co. v Griirrs. 43 Am. Rep. 34. noie, and other cnses there cited. See jilsn Pearson v. ('ommnri'dl Uiiwii, vhi Kiipra. Xti,/i:s V. \„rt/i- \V,.^terii /lis. Co., 54 Am. I!ei'. 631. (•/) Thoiiijisoii V. Moiitreol, dr., <'o., 6 V. ( '. H). M ) 310. TlfE RISK. |,Q bc'-ring the same proportion to ;{^5oo as the period of luitenantableness bore to twelve months (z). Tlio insurer may take a risk of death by any cause Voluntary self- other than by sentence of law, self-destruction in a destruction, 1,1 and death as siiiic nnna, or the consequences of some criminal the result of violation of law. If death ensue from any of these *"""°' ciuises, the insurer is not liable, since it is contrary to tiie policy of the law, in such case, to allow the iiisiuance-money to be recovered (a). Thus, it has 1)0(111 held that where death resulted from an operation unlawfully performed to procure abortion the insurers were not liable (b). And the same has been held in Aiiiuiica where the assured was accidentally killed in a mr/cc caused 1)y his assaulting another person (c). Thoro must be some relation between the violation of law iiiul the death to make good the insurer's defence, i.r., tlie death must be directly connected with the criiuiiial act (^/). Tuder this principle will fall the cases just mentioned, and also death by duelling (e), in a ])rize fight (,/), or an unlawful sport {(/). Where a ])olicy contained a proviso that in case the assured should die by his own hands, or by the hands of justice, the policy should be void, the assured threw himself into the Tiiames and was drowned ; and the jury having found that he did so voluntarily, knowing that he should destroy his life, but without being able to judge ])etween riglit and wrong, it was held that {z) Jlarhmmu v. Liverpool, London, ami Globe, ii C S C f-itli MTies) 1032, 21 JSc. T.. \l. 696. ■ ^^ {^i)Annm;>hy. Jiollan,! 2 Dow. & (!1. ,, 4 IJH^h N. S. 194, per iM-oiiKliiini, C, reversing Jiollan,! v. JHsani, 3 Kuss 351 (b)]lnniv. Anfjlo- Australian, 30 L. J. C'li. 511. 4 L. T. N S 43. 9 ^\ I- 359, 7 Jur. N. S. 673. JIatrk v. Jf dual Life, 21 Am.' .«^ 541 Lradte;, v. Mntnal Ihnejicial Life, 6 Am. Kei). iis 5 »'• I ■ 422. ■ * -" {<■) Murrmj v. New Yorl- Co., 48 Am. J.'ei.. 6?8. {'/) nradley v. Mntual 'h., 45 N. V. 422 W Per TindHl. C.J Jlorrodaile v. Jlnnter, 5 Ncott \. il. 418, '- ';; •^i,'- • ^ • 225, ^ M. & ;S. 639, 7 Jur. 443. * ' /) .lurrav v. A.w Tor/- Co., 96 N. V. 614, 48 Am. Hep. 661. (,'/) Iriurlitrs' Co. v. A'i'earers, 19 Wallace (U, S.) 531. 14, 1 45 saiai S I40 THI'] LAWS OF IN.SUEANCE, the policy was avoided, as the proviso included all acts of voluntary self-destruction (h). Implied condi- The Contract of life insurance contains an implied suicid^*'"^ condition that the insured will not intentionally teriiii- nate his own life (i). Suicide, In Borrodallc v. Hvntcr, Erskine, J., said that to come within the proviso the act of self-destruction should be the voluntary and wilful act of a man having at the time sufficient powers of mind and reason to understand the physical nature and consequences of such act, and having at the time a purpose and inten- tion to cause his own death by that act ; and that the question whether at the time he was capable of under- standing and appreciating the moral nature and quality of his purpose is not relevant to the in(|uiry further than as it might help to illustrate the extent of his capacity to understand the physical character of the act irself. insine! '''^''*' Where, however, there is no provision in the policy that it should be void if the party whose life is insured should die by his own hands, &c., the policy will not bo avoided by liis destroying himself while in a state of mental derangement (/). Life taken by assured. If the life on which the policy is granted be feloniously taken by the person who would otherwise receive the insurance-money, insurers are discharged, and the (/t) JJorrodallf v. Hunter, 5 31. & (J. 639, 7 Jur. 443, 5 Suott X. 1!. 418, 12 L. J. C. P. 225. Stormont v. Waterloo, dx., Co., 1 F. & F. 22. Schultze V. Insurance Co., 48 Arc. Jlep. 676. (/) lUtter V. Mutual Life, 69 Fed. Kep. 505, 70 Fed. Eep. 955. Mutual Life v. Lenhric, 71 Fed. Hep. S43. (Z) Horn v. Ariglo- Australian Jnsnrance Co., 4 L. T. X. N. 142, 30 L. J. N. S. C'h. SI I, 9 W. I{. 359, 7 .lur. N. S. 678. Brcstead v. Farmers, 8 N. Y. 299. Dufaur v. Professional JJfe A-s.suraiur Co., 25 J?eav. 602, 27 L. J. Ch. Si/, ^2 L. t. 25, 4 Jur. N. S. 841. V,i„r V. Wakefield, M. & W. 442. Moore v. Woohei/, 4 Ell. & J!. 243, 24 L. J.g. B. 40, 24 L. T. 155, 3 W. ]!. 66, i Jin. N. s. 468. B-itchard V, Merchants' and Tradcvm n's Life Jmurance Co., 27 L. J. »'. I'. 169. 3 C. ]}. N. S. 622, 30 L. T. 31S, 6 W. 11. 340, 4 Jur. x\. S. -,07: Uainwrit/Ht v. Bland, i "\[oo. & Hob. 480, i ."M. & W. 32, 5 L. J.N. S. Ex. 147, Madhatfan Life Co. v. lirou,ihton, 100 U, S. (2 Davifi) 126, where the authorities, English and Anierii.an, uro ilisciis-incc o/nale^ Insnrauce Co. v. Palmer, 25 Beav. 6oq • but spp Amstrom v. Mutual Life, 20 Blatch. (U. S.) iq-( ^ ' i'l) 59 & 60 Vict. c. 25. ^^ [•i) 59 & 60 Vict. c. 26. imnri,dnnHl"*'ffi •'"'.""* Fopcrl J tending children and giving thor. (?) See as. 62 to 67 ot'c. 25 and s. 13 of c. 26. ; -.J^M- i 142 TIIK LAWS OF TNSUIJANCE. if MeanJug of " commit suicide." American view. re'f). Where the policy stipulates against liability, should Presumption the assured commit suicide whether sane or insane if '^''''""Pf* the evidence is coiiHicting it will be presumed that death was accidental and not intentional (r). Where a contract of insurance is held void on Voiunteor and grounds of public policy, as, for example, in a case ^'^'^^^'^^ptcy of /do de 8c, neitlier the assignee under a voluntary ^^^'^ rocover assignment, no Jte assignee in bankruptcy f)f |.],g ^^^^^'^ «"'«'d«- assured, can recover thereon (/"), ■I' (z) y<'nXStormoi,t V. Waterloo Co., 1 F. & F. 22. ^' (<^ Infler^oll y. Knif,hf8 of Golden Bule, 47 Fed. Rep 272 Con v9 s 4 fN:\^4a.^ ^•^•' -P-^ ■^- A i%''-?°''''«"''?'.9-J;' •^'"'^'^" ^- horsier, supra. 17 W I126 lof T V^'^^l- '% ^?- K^- 7 Sq- 394, 38 L. J. Ch. 53, iiL .J Ch 268 ^•^^•^•306. Cook V. Black, 1 Rare 3,)o,6Jviv. i^ ISO 146 TIIK LAWS OK IXSUKANCE. can hold that in the absence of fraud tlie estate of the assured is to be deprived ot the benefit intended to be given him by the exception, merely becuise the mortgage happens to be fully secured "(//')• Policy undor Where a i)olicy has been issued under t/u- Married Women's Women's Property Acta. 1870 and 1S82, it would seeiu ^''''^^"•■'y ■'^°**'- to be avoided bv si^iy i ^ e of the assured in the same way as any otlier policy ; because if a man is thus allovvetl U) provide for his family in the event of suicide, one restraint against self-destruction is removed, and he might ellect such an insurance, intending all the while to terminate his existence. Suicide in this as much as in any other case is a risk not tid., 32 W. K. 657. (») Dormajiy. BornxhtUe, 11 ,lui. 231, 379, 5 C. IJ. 3S0, 10 lie.iv. jj 5, 9L. T. 449, 16L. .1 ("h. 12,7. (0) Vide Jeffries \. ( m; ) CHAPTEli V. OENEHAL INgUIKIES MADE I'.Y INSUKEHS. In life insurance the inquiries made by insiniu-s oo to— I. The age of tlie applicant. This is important with vegftrd to the average duration of human life. lUit there may l)o other circumstances tending to show that the life will be of more or less tlian average dura- tion. • His family history, as giving a clue ah vHvti to liis probable constitution and prospect of longevity. 1 iider this head questions are usually asked as^o his l)«rent-, grand-parents, and brothers and sisters, and what diseases, if dead, they died of. 3. The personal health, present and past, of the applicant, including therein his constitutional history. 4. His moral history, including therein his habits of Hfe past and present. Under this are included qii' stions as to steadiness and sobriety, and whether a nmn is married or not (a). 5. His geographical position. (Jwteris 'paribus, in- surance rates would be higher in an earthqunke district of Southern America than in Great Britain. Ijesides us, chmate is an clement in the risk both generally and in respect of the peculiar constitution of indi- viduals, as certain climates are apt to be fatal to men of certani nationalities, constitution, and habits. 6. His occupation. Some trades and occupations are more hazardous than others, c.y, a soldier's than (a) Vide Jeffries v. Union Mutual Co., i McCrary (U. S. Circ. C:.) 1 14. r —-^f-^ as* •882 -so &M9 1 i i S IMAGE EVALUATION TEST TARGET (MT-3) // df<' Vx ^ 1.0 I.I |50 =^^ 2.5 1 2.0 1.8 1.25 1.4 1.6 ^ 6" — ► V] <^ /a rf <9 / ''/ Photographic Sciences Corporation ^ •^ ScnnJonv. Sreates, 13 Ir. Law Rep. 71 (1849). {li)3?""'"' ''■ """'■'''''' ' ^^•^'^^■735- Abbot y. Howard, llaye, 'i"! ^\^««<^'«'/?«o/"'*''o<>«^v. Forster, 11 C. S. C. (3r(l series) 351. (d) Forbes V. Edinburgh Life, 10 C. S. C. (ist series) 451. ^ , ifK n ?V- "r«'f ^«. ' ^l & ^^- 735- ''fc«««/t Fquitalle v. Buist, 4 y- ^Jp- <4th series) 1076, aflSrmed by H. L, c C. S. C. 64 (H. L ). ( /) bouthcomb v Merriman, Car. & M. 286 t x / ll^^'l ^/v ^'"l^-?,^^/.?"^ 397, and the charge' to tlie jury in liwich v. Jiome Life, 2 Dili. (C. Ct. U. H.) 160. (h) Per Lord Blackburn, Tliomwn v. Weems, 9 App. Ca.s. 684-5. neems v. Standard Co., 21 Sc. L. I{. 791. ^ ^ (') Same case, p. 696. (IE! It is noi (cinperate present, bu intoxicatioi In one person who unmarried) 5. A st« say that he right to rec of air and life (/). Oi in the tropi has been re residence, a 6. It is : occupation ( to the risk, When a : must state ; different, an To descri answer to i amount to a pation {p). ironmonger, simply as es the conipau} (k) EdwardH (/) Huguen'in (m) Groqan \ L. R. 75. • (n) Lindenan (0) Hartmann {[)) Peiriii.1 V 29 L .1. Q. B. I 41, 563. riEXERAL INQUIRIES MADE BY INSURERS. It is not infrequently provided that the warranty of (cinperate habits should apply not only to past and present, but also be promissory, and death by or during intoxication is excepted from the risk. In one case (/.) concealment of the fact that the person whose life was insured had had a child (she was unmarried) was held material, and a nonsuit entered. 5. A statement that A. resided at B., but omitting to Residence, say that he was in prison there, was held fatal to the right to recover on the policy, as confinement and want of air and exercise were deemed prejudicial to the life (/). Omission to disclose a long previous residence in the tropics would probably be so likewise. But it has been recently held that to insert merely temporary residence, and not the domicile, is not fatal (m). 6. It is not necessary to disclose anything as to the Occupation, occupation of the proposed assured, unless it is material to the risk, or asked for by the insurer (u). When a man is asked for his present occupation, he must state it, even if his regular occupation has been different, and is likely to be resumed (0). To describe himself as esquire is not a satisfactory answer to a question as to occupation, but does not amount to a statement that the declarant has no occu- pation (p). The proposed assured was in business as an ironmonger, and described himself in the proposal simply as esquire, yet it did not vitiate his claim on the company. 153 Hi,,* :9K» (k) Edwarth v. Barrow, Ellis Ins. 123. (/) Huffiien'm v. lim/lei/, 6 Taunt. 186. (m) Grogan v. London and Manchester Co., 53 L. T. 761 2 Tiine.s L. R. 75. (n) Lindenan v. Be-ihormifjh, 8 B. & (J. 586, 592. (0) Hartmann v. Keystone State, 21 Penn. 466. (/*) Perrin.1 v. Marine and Genercd Travellers, 2 E. & K 717 29 L.]. Q. V,. 17, 242, 2 L. T. N. S. 633, 6 Jnr. N. S. 69, 627, 8 W. R.' 41, 5D3- &3 S%9 J ( 154 ) Difference between warranty iu marinu and other policies. Warranty in all policies. CHAPTER VI. WAEKANTY. Express warranty a Loud Blackbubn said in Thomson v. Wcems (a) : " In policies of marine insurance I think it is settled by authority that any statement of a fact bearing upon the risk introduced into the written policy is, by whatever words and in whatever place, to be construed as a war- ranty, and, 2>rimd facie at least, the compliance with that warranty is a condition precedent to the attaching of the risk. I think that on the balance of authority'the general principles of insurance law apply to all in- surances, whether marine, life, or fire ... . but I do not think that this rule as to the construction of marine policies is also applicable to the construction of hfe policies." It is a first principle hi the law of insurance, on all occasions, that where a representation is material it must be complied with ; if immaterial, that immateri- ality may be inquired into and shown ; but if there is a warranty, it is part of the contract that the matter is such as it is represented to be, therefore the materiality or immateriality signifies nothing. The only question is as to the mere fact. When it is agreed in any contract of insurance that a particular state- n:ent shall form the basis of the policy, the truth of that statement is warranted (h). An express warranty is something more than an (a) 9 App. Cas. 684, 21 So. L. R. 791. ^ (b) Newcastle Fire Insurance Co. v. 3I'Moi'ran, 3 Dow. H. L. 255. riumison V. Weems, 9 App. Cas. 671. Weems v. Standard Co., 21 Sc. L. It. 791. Kelhjv. Mutual, 75 Fed. Rep. 637. Fishery. Crescent Insvrame Co., 33 Fed. Rep. U. S. 544, per Dick, J. agreemeni is no difff life policii Warrai tract, mus be compli forced, no They are must be i ence (e). not quite, No pai warranty; margin w quarters, i seamen, bi amount to The foi: the policy was prov( Lord Maui and tliouj make any condition ] not liable The tru is the ques the party of the con insure his (c) Hamhrc C. A. 140, II (C. A.) 160. (d) Gibson (e) Moutledt if) Bean v {(j) Bean v. WARRANTY. 155 iij^ieement, and creates a condition precedent, and there condition is no difference in this respect between fire, marine, or SnToUdeJ." Ufe policies (c). Warranties and conditions, being a part of the con- Warranties tract, must be true if affirmative, and if promissory must mutrte'^tr"r be complied with, otherwise the contract cannot be en- forced, notwithstanding the good faith of the assured. They are either express or implied {d). The warranty must be in the policy, or incorporated therein by refer- ence {e). Implied warranties are, however, almost, if not quite, confined to marine insurance. No particular words are necessary to constitute a No particular warranty; hence where a ship was insured, and in the Tcetsary for margin was written " eight nine-pounders with close ^^an^^ty. quarters, six six-pounders on her upper decks, thirty seamen, besides passengers," these words were held to amount to a warranty that the ship was so provided (/). The following words were written in the margin of the policy: — ■' In port, 20th July 1776." The ship was proved to have sailed on the i8th July, and Lord Mansfield held that this was clearly a warranty : and tliough the difference of two days might not make any material difference in the risk, yet, as the condition had not been complied with, the insurer was not liable {()). The truth and not the materiality of the answers Facts is the question to be considered when the answers of S'befrue the party proposing to effect the insurance form part ^^^"^^ . of the contract. Thus where a party who desired to ""™* insure his life received a form of proposal containing (c) Hamhroitgh v. Mutvul Life, Ac, C. A. (1895) W. N. 18, 72 L. T. (1 A. 140, li Times L. E. 196. Barnard v. Fuber, 9 Times li. r! \L: A.) 160. ((/) Gibson v. Small, 4 H. L. C. 353. (e) Houtledge v. Bun-ell, i Hy. Bl. 255. Worsley v. Wood, 6 T.E. 710 (y) Bean v. Htupart, Doug. 11. (g) Beany. iStupart, Doug. 12, note. II 4111' 1'^ B|»ir &3 1 ^gm» iM S§: ^ M ^ 4 Bl ?:' || 156 THE LAWS OF INsUKANf E. must be strictly perfonued the following questions : " Did any of the party's near relatives die of consumption or any other pulmonary complaint? Has the party's life been accepted or refused at any office ? " and to these questions the answer " No " was untruly returned (k), the policy having expressed that if any false statement was made to the company in or about the obtaining or eflectinrr of the insurance, the policy should be void, the House of Lords decided that the answers of the intending insurers being part of tlie contract, their truth and not their materiality was in (juestion (i). ^3'^nStions ^^ ""^y ^«^e ^^ mentioned that a condition precedent precedent forming part of the contract must, like a warranty, be strictly performed. Hy the proposals it wu stipulated " that persons assured should .... procure a certifi- cate from the minister, churchwardeiis, and some re- spectable householders of the parish not concerned in the loss, importing that they were acquainted with the character and circumstances of the person insured, and knew or believed that he by misfortune and without any kind of fraud or evil practice had sustained by such lire the loss and damage therein mentioned." It was held that the procuring of such a certificate was a condition precedent to the right of the assured to recover, and that it was immaterial that the minister, churchwardens, &c., wrongfully refused to sign the certificate (k). If the condition precedent be not performed, the plaintiff cannot succeed in his action even if the non- performance is under the contract attributable to the defendant. For example : The proprietors of the news- paper Tit-Bits advertised that £ioo would be paid by a certain insurance company to the person whom Condition precedent to be performed even where defendant can under the contract prevent it. (/«) London Jssurano- v. Mansell, u Cli. D. 361, 48 L. J. Ch ^^i, 27 vV . R. 444. And see Rmsell v, Canuda Life Co., 32 U. C (C I' ) 2S6 (I) And^-8on V. Fitzgerald, 4 H. J.. C. 484, 17 Jur. 995. .Sec also per Lord Blackburn, Thomson v. Wcetm, g Ani). Cas 671 {h) WorsUy y. Wood, 6 'V.ll.y 10. ' ^ WARRANTY. j-y the proprietors decided to be next-of-kin of any one killed in a railway accident who was proved to have been a constant subscriber to the paper. A person having been killed, the proprietors paid the insurance- money to the widow ; but the children of the deceased l.y a former marriage sued them as next-of-kin, and it was held that they could not recover without producing the decision of the defendants that they were the next- of-kin, that being a condition precedent to recovery (/). Where the questions and answers of a proposal Fact war- form the basis of the contract, thoir materiality cannot rXTa-'^ be disputed by the assured {m), and where a thing is warranted to be of a particular nature or description, it must be exactly such as it is represented to be, other- wise the policy is void and there is no contract. Therefore where a policy of fire insurance on a mill contained the following warranty: "Warranted that the above mill is conformable to the first class of cotton and woollen rates delivered herewith," the mill proved not to be of the first class, and the House of Lords decided that an action on the policy could not be supported. In giving judgment Lord Eldon said: " It is a first principle of the law of insurance on all occasions that where a representation is material it must be complied with ; if immaterial, that immateri- ality may be inquired into and shown ; but if there is a warranty, it is part of the contract that the matter IS such as it is represented to be. Therefore the mate- riality or immateriality signifies nothing. The only question is as to the mere fact, What is the building de facto that I have insured ? (n) But where a policy on cotton-mills contained a warranty that they should be worked by day only, and a steam engine and I i „i? v"'!'//'"^' Newnes 2i Sco. L. R. 888. Muvrheadw. Forth iTk I2 ^^""'"^oat Mutual Insurance Association, 10 Times [m) Anderson v. Fitzgerald, 4 H. L. C. 484, 17 Jur. 905. («) lYeivcastk Fre Insuravce Co. v. 31'3iorran, 3 Dow: H. L. 255. 158 Expression of intention or opinion. Insured need not state in detail facts covered by warranty. THE LAW8 OF i.NSURAiNCE. horizontal sliafts were worked by night, it was iieUl to be no breach of the warranty (o). And a warranty that a mill is " worked by day only '' is not broken by some portion of the machinery being in motion by night (i>). Ngt. every answer to a question put by the insurers is a warraiity. Answers may be mere statements of intention or opinion, and not intended as a warranty or representation (q). Thus, a steamer was insured and was described by the assured as " now lying in the T. dock and intended to navigate the St. Lawrence as a freight boat, and to be laid up for the winter in a place approved by this company." The vessel was destroyed eleven months afterwards by fire, and had remained in dock the whole time, and it was held (reversing the judgment of the Queen's Bench of Lower Canada) that the words were »-Qot^ warranty, Ivit merely expressed an intention that ' the vessel should navigate as mentioned (->'). The insured is not bound to state in detail facts covered by a warranty except in answer to inquiries made by the insurer ; ej/., where a life was insured with warranty that the life was a good one and the person whose life was insured suffered from an old wound, which circumstance was not mentioned to the insurers, the life having died from an illness which had no connection with the wound, the non-disclosure did not disentitle the assured from recovering, because the question to be decided was — Has the warranty befin proved true ? in other words, Was the life a good mm (o) Whitehead v. Price, 2 C. M. & R. 447. Mayall v. Mtfonl, 6 A. & E. 670. (») Mayall v. Mitford, 6 A. & E. 670, 1 N. & P. 732. Whitehead V. Price, 2 C. M. & R. 447, i Gaie Ex. 151. (q) Benham v. United Chiarantee Co., 21 L. J. Ex. 317, 16 Jur. 691, 7 Ex. 744. Anderson v. Pacijic Co., L. R. 7 C. P. 6q. 26 L. T. N. S. 130, 20 W. R. 280. (r) Grant v. Etna Insurance Co., 15 Moore P. C. 1:16, 6 L T. N S. 735, 8 Jur. N.S. 705, 10 W. R. 772. one / not, "V liniiity / L upon a re should be d where there must in ge was in fact have a part " The ins please, and altliough it knowledge, But when t of that sort, their intenti such as pel any difficult A warra known to tl than one wi the applicai defendants ( An appli going is a ji and circums and value same are k hereby mac warranty on that in the U) Boss V. /J Willia V. Poole, (0 Gibson v. (») Life Aesi 364, per Lord ] 2('r. &M. 348, (x) Wilkins 1 surance Co., 50 WARRANT V. I 59 one { not, Was the life subject to any particular in- tiiinity ? Lord Mansfield said : " Where au insurance is upon a representation, every niaterial circumstance should be mentioned, such as age, way of life, &c., but where there is a warranty nothing need be told, but it must in general be p)oved, if litigated, that the lifi- was in fact a good one," and so It may be thougli he have a particular infirmity (s). " The insurers may stipulate for any warranty they please, and if the assured undertakes that warranty, altliough it may be something not within his or her knowledge, he or she must abide the consequences. But when the insurers intend that there is a warranty of that sort, they must make it very plain that such is their intention (t). They must use unequivocal language, such as persons of ordinary intelligence may without any difficulty understand " (ic). A warranty that facts stated are true, " so far as " so far us known to the applicant," will be construed less strictly ^^°'"^-" than one without these qualifying words. Proof that the applicant knew facts not stated would be on the defendants (ic). An application for insurance recited " that the fore- " So far as going is a just, full, and true exposition of all the facts wa°rrenty.^**' and circumstances in regard tcj the condition, situation, and value of the property to be insured, so far as the same are known to the applicant ; and the same is hereby made a condition of the insurance and a warranty on the part of the insured " ; and it was held that in the absence of fraud or gross negligence, the •£0 &%9 (y) Bossy. Bradshaw, i Win. Bl. 312, 2 Park Ins. 934 {8th ed.). Willis V. Poole, 2 Park 935 (8th ed.). (0 Gibson v. Umall, 4 H. L. C. 353. (h) Life Aesociatimi of /Scotland v. Foster, 1 1 C S. C. (3rd series) 251, 364, per Lord Deas, 371, per Lord Ardmillan. Duchett v. Williamfi, 2 Cr. & M. 348, distinguished. Hare v. Barstow, 8 Jur. 928. (x) Wilkins V. Gerr,.ania. 57 Iowa 529. Garcelon v. Hampden In- surance Co., 50 Maine 580. i6o Warranty of good health r^.eauB of reasonably good healtb. TlIK LAWS OF IXSUKANCK. insurer would not be relieved from the contract by incorrect representations (y). Where there is a warranty that the person whoso life is insured is in health, or in good health, it is suHi- ciont if he is in a reasonably good state of health and oven if he laboured under a particular infirmity, if it can be proved by medical men that it did not at all in tiieir judgment contribute to his death, tlie wf.rranty of health has been fully complied with, and tlie insurer is liable. Therefore where a policy con- tained a warranty that 1». was in good liealth when the policy was underwritten, and it appeared in evidence that, though he was troubled with spasms and cramps from violent fits of the gout, he was in as good a state of health when that policy was under- written as he had enjoyed for a long time, fiord Mansfield said : " Such a warranty could never mean that a man has not in him. the seeds of some dis- order. We are all born with the seeds of mortality in us " (.). Assured uot subject to gout or fits. S- So where a policy cdutainr. a warranty that the assured " has not been afflicted with nor is subject to gout, fits, &c.," such warranty is not broken by the fact of the assured having had an epileptic fit in conse- quence of an accident. Lord Abinger said : " The interpretation I put on a clause of this kind is not that the party never accidentally )md a fit, but that he was not at the time of the assurance being made a peisoii habitually or constitutionally afflicted with fits, a person liable to fit= from some peculiarity of temperament either natural or contracted from some cause or other during life " (a). (?/) Fisher v Crescent Jus. Co., 33 Fed. Rep. 549. DeMm/c v. Jlntish Empire, 13 Times L. K. 241,. [z) Willis V. Poole, 2 Park 935 (8tii ed.). lioss v. Braihlimc, i Wm. III. 312, 2 Park 934 (8th ed ). («) Cliattoclc V. Shawe, i Mo. & itob. 498. WARKANTY. i6i A proviso in a policy that if the declaration under Material tlie hand of the person assured delivered at the insur- «*»'«'»'^"t iince office as the basis of the insurance is not in every "o"k™owie"dg"°*' respect true, and that if there has been any misrepre- °^ '''"'■'^''• sentation, &c., then the insurance will be void, will avoid the policy, if a statement of a material fact' con- tained in the declaration is untrue, though not to the knowledge of the assured (b). If there is a warranty of a particular fact simpUciter, Effect of c.f/., agamst disease, then, if it is proved untrue, the risk ^^"""^ "^ will never have attached ; the premiums therefore will ^etuS "" never have become due, and may, if paid, be recovered ^''°''"'"'- back as money paid without consideration. But if it is also a term of the contract that if the statements are untrue the premiums shall be forfeited, then what is untrue so as to avoid the insurance is also untrue so as to cause the forfeiture of tlie premium (c). The warranty or condition must be contained in the Evidence of policy or in some paper referred to by the policy, and '''*™'^*y- if a policy under seal refer to conditions contained in a printed paper without seal or signature, those conditions become part of the contract between the parties, and must be complied with before the assured can recover (d). But though a written paper be wrapped up in the policy when it is brought to the insurers to subscribe, and siiown to them at that time, or even though it be^ watered to the policy at the time of subscrFbing, still it is not in either case a warranty or to be corT- T !5a» w i< ^^"."^ ^T""^^ SS-: Thnimou v. Weems, g App. cLs 68s over InmiuosB .if nnothor company and issues now policy, war- rant ils, &c., rdato to date of original policy. If the insurers dispute the titlo to recover on the policy on the <»round tiiat in tiie proposals the assured stated he had not had certain diseases, whereas lie in fact at the time had one of them, they will he obliged lo give i)articulars of the symptoms of the disease alleged (//). Tf one company takes over another's business, and issues a new policy of its own for one surrendered, the warranties therein relate back to the dai'j of tlie original and not of the substituted policy {It). The liability is shifted or re-insured, not lessened or altered. Tlie insurers are not precluded from setting up breach of warranty in proposals by the fact that they have doubted their truth and have sought and received from their agent a further and at one time satisfactory report (/). {e) Jlfiiii V. 67 «/)((;•/, I Uong. 12, note. (_/') Prinisiiliutiiht 3lit(U(il Liff lii»nv(incr Co, v. JlV/fr, 50 Am. Keii. 769. (<;) Miii-xhiiU V. /■JnijHnir Life, li. R. I Q. li. 35, 23 L. J. Q. I!. S9. 13 L. 'V. N. S. 2Si, i2.Tur. N. 'S. 293. OInlhxt'our v. North UritUh » ; ( ;sia» few Ifi i^ 164 Clause declaring contract void if answerfl untrue. Insurance without any representation by assured. THK LAWS OF INSURANCE. contract between the parties that everything material known to the assured should be disclosed. That is the basis on which the contract proceeds, and it is material to see that it is not obtained by means of untrue representation or concealment in any respect (d) that means in any material respect (e), any respect which a reasonable man would think material (/). Mr. Justice Bayley said ; " It does not matter whether the insurance is on ships, houses, or lives, the insurer should be informed of every material circumstance within the knowledge of the assured ; and the proper question is whether any particular circumstance was in fact material, and not whether the party believed it to be so " (ff). Mr. Justice Littledale said : " It is the duty of the assured in all cases to disclose all material facts within their knowledge. The non-answering of a specific question v/ould amount to concealment if the man knew the fact and was able to answer it " (A;. Clauses in the application and in tiie policy declaring the contract void if the answers were untrue, are to be construed as requiring as a condition precedent to a valid contract nothing more than that the insured should observe good faith towards the insurance com- pany, and make full, direct, and honest answers to all questions, without evasion or fraud, and without suppres- sion, misrepresentation, or concealment of facts with which the company ought to be made acquainted (i). When a man effects an insurance upon a life generally without any representation of the state of the life ( Tark Ins. 934 (8tb ed.). ^ , aiiv (/) Pawsoii, V, Watson, 2 Cowp. 787. (ill) London jUsuranoe v. 3l(nisel, u Cii. J. 370, per Jense], M.K., 4b L. J. Ui, 331, 27 W. 1{. 444; end vide snpm, p. 151, per Littledale, .1. (//) (.unnerhcvf Miitmil Life v. Lucli^, 108 L. S. 498. iS6 i . i I \ ! i: i 1 66 THE LAWS OF INSURANCE. MI scription is not correct, the policy does not begin to run at all, or runs only as to parts unaffected by the breach of condition. If it is fully performed, nothin.r which happens afterwards, not even a change of busi- ness, could aftect the policy as to that condition (o). Tf there be fraud in a representation, it avoids the policy as a fraud, but not as a part of the agree- ment (p). Effoet of If representations are made part of the policv tiiov tiou whoro oecome warranties ; and if they are untrue, the policy part of policy, ^^ju ^^ avoided, even if the loss has not arisen from the fact concealed or misrepresented (q). Misreprosoutn tion by insurer. iStateuiuuts must Ih! true at time con- tract of insurance actually niadt\ The policy would equally be void if the insurer mis- represented or concealed a material fact ; as, for example, if he insured a ship on her voyage which he privately knew to be arrived ; and an action would lie against him to recover the premium. " The governing prin^-ple," said Lord Mansfield, " is applicable to all contracts and dealings. (Jood faith forbids either party, by conceal- ing what he p-ivately knows, to draw the other into a bargain from his ignorance of that fact and his believing the contrary " (r). Statements made by a person in a proposal for life assurance must be true at the time at which the contract of assurance is actually made. Therefore where state- ments regarding the proposer's health were to be taken as the basis of the contract, and the proposal contain- ing them was accepted upon the terms that no insurance should take place until the first premium was paid, the company were held justified in refusing to accept the premium, a material alteration having occurred in the (o) Pirn V Be!,!, 6 M. & (J. i (24), 12 L. J. C. P. 299. aW,/,/- v. Bohberdx, I N. & P. 279, 6 A. & E. 75, 6 L. J. N. S. K. C. 106. {7)) Per Lord Mansfield. rnwKon r. Waitun), 2 Cowp. 787. (7) Mayiwrd v. ]}hode, i Cur. & P. 360, 5 Dowl. & L'y. 266. ()•) Carter v. Boekm, 3 IJiirr. 1910. proposer s the tender Any pe and who i hound to ( the policy arises froi void (^). And th material i insurance course to 1 to knovvlei where his being efi'ec Ijrought in acts on tl material c whether it cannot be to any ext by persons nothing." for the n( be within merely en ticular risl who actual If befor insured is formation, who is b( (s) Vanniii 225, 54 L. T. (<) Fitzher. Co., Forbes' < (m) Blackbi Watson. J« MISREPRESENTATION AND CONCEALMENT. proposer's health between the date of the proposal and tlio tender of the premium (5). 167 Any person acting by the direction of the insured, Agent of iiud who is instrumental in procuring the insurance, is disdos^eTu^fy, bound to disclose all he knows to the insurers before the policy is effected, and where any misrepresentation arises from his fraud or negligence the policy is void (0- And the insurer contracts on the basis that all Principal material facts known to the agent who effects the knowledge of insurance have been by him connnunicated in due tho agent who . . , , , . contracts, but course to his prmcipal ; but this rule does not extend not of others to knowledge acquired by an agent to insure, in a case hkn.°^^ ^ where his agency has terminated without an insurance being effected. " So also when an agent to insure is brought into contract with an insurer, the latter trans- acts on the footing that the agent has disclosed every material circumstance within his personal knowledge whether it be known to his principal or not ; but it cannot be reasonably suggested that the insurer regies to any extent upon the private information possessed by persons of whose existence he presumably knows nothing." " The responsibility of an innocent insured for the non-communication of facts which happen to be within the private knowledge of persons whom he merely employs to obtain an insurance upon a par- ticular risk, ought not to be carried beyond the person who actually makes the contract on his behalf " (u). If before a policy of life insurance is effected! the life statements by insured is applied to by the ottice for and gives in- "^® assured, formation, he is regarded as the agent of the assured, who is bound by his statements even though the ! i ( t ^2ai 58S : i 5W i 1 ^ . ^H ::)s«. i H &IS3 "^ ! ■ i j 1 i i e 1 1 Answers given by the life insured must be true. '^8 THE LAWS OF INSURANCE. assured is a stranger to and unacquainted with h'm • and if such statements are false, the assured will Lot be able to recover from the insurance office. AuJ this is so although the assured should leave it to the agent of the insurance office to obtain the informa- tion (x). An insurance was effected by a creditor on the life of his debtor, who gave untrue answers to the questions, "Who is your medical attendant? Have you ever had a serious illness ? " The creditor was ignorant of the misrepresentation, and the debtor did not die of the disease he was then afflicted with ; but it was held that the misrepresentation avoided the policy, for, beiiia part of the policy, the bargain was only conditional, and it was equally a condition let it be made by whom- soev^er it may (ij). SinZough" ^^ ^^^ misdescription is in fact due to the act of an agent of agent of the company, even if material, it will not company. affect the policy (0). " Spitting blood," untrue statement regarding. One of the terms of a policy of life assurance was that it should be void if anything stated by the assured was untrue. The assured stated that he had not had any spitting of blood, and the Court held that as one single act of spitting of blood would be sufficient to put the insurers on inquiry as to the cause of it, the fact should be stated (a). ?n°Z- only is ^" applicant for life insurance is only required to required to auswcr honestly a general question as to his personal luestTons. ^^^. ^^^^^Y liistory, and a failure to disclose threats against his life Avould not avoid the policy (b). (a;) Everett y. Dcshurcmgh, 5 15ing. 503. (y) May nurd v. Jihude, I Car. & P. 360, (;:;) 'Ro UidvernulNoii- Tariff Fire Co., En omersx. AthoHeum dr., Co., 9 Lr. Can. K.^. „., ^ ... ^.„. „„,. u/. {<>) Qeach V. Inyull, 14 A1 & W. 95, 15 L. J. Ex. 37, 9 Jur. 691. {h) Connecticut Mut nut Life v. 31cWhirter, 73 Fed. Rep. 444. Paui Mttiual L,Je v. J/ec/i,nncs' ^^arinyx Jhnd; 72 hed. Jfep. 413. U) Re U,uver.saU\oH.TanffFire Co., Ex parte Forbe.,' claim, supra. Vomers X. Athenwum, dr., Co., 9 Lr. Can. Rep. 61, 3 J.r. Can. Jur. 67. m Where declaratioi life is insi question b the jury h temperate whether h time of thi office from be not imj their office Where i in his habi the insure] fully resist the date amount to as to amou obliged to of such a " we must people in person insi The exp accident pc fully influ( that he is ' as disturbs gent exerci A provj should " no (c) Southcon {(l) Per Lor Weerm v. Stan ever, differed ai (c) Mncrohb {/) Miiir V. MISREPRESENTATION AND CONCEAUIENT. 169 Where a policy of life assurance is effected, and a Temperate declaration made by the assured that the person whose ^*'''*'' life is insured is of sober and temperate habits, upon a question being raised after his death as to his sobriety, the jury have to say, not whether the deceased was in- temperate to such a degree as to injure his health, but whether he was of sober and temperate habits at the time of the insurance. There is nothing to prevent an office from stipulating that even though a man's health be not impared, every person whose life is insured at their office shall be a person of temperate habits (c). Where the insured has warranted himself temperate ia his habits and that he has always strictly been so, the insurers must (says Lord Blackburn), to success- fully resist payment, " prove drinking carried on, before Proof of the date of the warranty, to such an extent as to ^''*®°'P®"^*"°®' amount to intemperance, and so often and continuously as to amount to habits of intemperance. They are not obliged to prove anything more." In the construction of such a warranty the same learned lord held that "we must take into account the normal habits of people in the class and in the locality where the person insured lives " (a.). The expression " under the influence of liquor " in an Meaning of accident policy means " that a man's conduct is bane- Influence of fully influenced by the liquor he has drunk " (e), or Hquov.''^^ " that he is " under such influence of intoxicating liquor as disturbs the balance of a man's mind or the intelli- gent exercise of his faculties " (/). A provision in a life policy that the assurance should " not extend to any death, or injury, happening 1 II ?' III m 4 HI j_ , ^ ^ . ) :2iai. 1 &u -^ (c) Southcomb v. Merrimim, Car. & Mar. 286. ill) Per Lord Blackburn, Thommii v. Weeiii'i, 9 App. Cas. 684. Weemsv. Standard, cCc, Co., 21 Sc. L. R. 791. Lord AVatson, how- ever. Hiff«rfl^ OS to " locality ; " see p. 696. ie V. Accident Assurance. Co., 23 Sc. L. R. 391. IhiiUuaij Pa^tstnytni Insurance, 37 L. T. 356. ever, differed as to (c) Mncrohb {/) Mair V \ ^■< ! i 170 THE LAWS OF INSURANCE. > whilst the assured is under the inlluence of intoxicat- ing liquor " means that the insurance will not extend to a death, or injury causing death, happening whilst the assured is under the inMuence of intoxicatiii-' liiiuor ; and therefore it would suffice for an insurer, iu resisting the claim, to show that the assured was under such inlluence wlien he received the injury from which death afterwards resulted {y). Habitually intemperats, . i i i • n ~ * ./ --,.- — Ac, question sions as " habitually intemperate "is a question for the forjurj'. . ,,, The true meaning in a life policy of such expres- )ns as ' ' ' jury {h). Meaning of " 80 intem- })erate as tc Where an American life policy contained a proviso that if tlie insured " should b; come so intemperate as Impair health." tQ impair health or induce delirium tremens" the policy should become void, it was held that the condi- tion would be broken if he died from the effects of a single drunken debauch immediately preceding his death, although before that he may have led a tem- perate life (/). The question " whether a proposal has been dechiied by any other office " is a material one, and must be Has proposal been declined by any other material ^ruly aiiswered by an intending assured, otherwise the question. policy granted to him will be void (A). Condition. Concealment. Omission. But a mere omission in a proposal to fill in any answer to a question whetlier the insured has ever been a claimant on a fire insurance company, he having in fact been so, is not a concealment of a material fact (/) ; and where fraud was not alleged, but in answer to the question " whether a proposal had been made on tlie same life to any other office ? " the answer was, " Yes, in ig) Mair v. Ihrilwa;/ ratmennern' Iiimronce, 2,7 L. T. 356. {h) North- Went em Mutual Life v. Mvskegun, etc., 122 U.S. 501. \i) Darey v. ^fna Life, 38 Fed. Eep. 650. (A-) London AHsunnwe v. Munsd, L. R. 11 Ch. D. -^St,, 48 L. J. Ch. 331, 27 W. K, 444. (/) fAitidou and Loncashire Insurance Co. v. Honev. 2 Victoria Law 7. the Edii accepted Kxchangi iind Mu declare 1 insist on may amo The q firm proj " Has tht insurance a membe were he] so the an A poli the time is not vi person ol been aflii if it appe as to pre^ had happ untrue st health, if dition, wi where c( and no a( A med not to be [m) Scott (») Dacie 60 L. .!.]'.( (o) Swete (f) Fowh 309, 32 L. J Thommti v. {q) Britin MISREPUESENTATION AN! CONCEALMENT. 171 tlu; Edinburgh Life in April," and the life had been accepted by the "Edinburgh" and the "Royal Kxcliange " and had been proposed to the " Colonial and Mutual" and "Equitable," Day, J., refused to declare the contract void (m). The insurers should insist on an answer, as the grant of a policy without it may amount to a waiver. The questions should be specific, because where a Claim ou firm proposed for a fire policy, and to the question, ly°l^^^^''^ " Has the proponent ever been a claimant on a fire **"? ^^°''e insurance company ? " answered " No," claims made by partner, a member of the firm before he became a partner in it were iield not to be covered by the question, and so the answer was not untrue (n). A policy of insurance on the life of another, who at Non-communi- the time of the insurance is in a good state of health, £er mness. is not vitiated by the non-communication by such person of tlie fact of his having a few years before been afflicted with a disorder tending to shorten life, if it appear that the disorder was of such a character as to prevent the party from being conscious of what had liappened to him whilst suffering under it (0). An untrue statement of the assured as to the state of his Untrue but health, if made in ignorance of his true physical con- menTM^to^*^' dition, will not in general vitiate the policy (p). But •^®»'*l»- where concealment is intentional the policy is void and no action lies for return of premiums (q). A medical man who has attended only once ought Usual medical not to be named as the usual medical attendant of the *"^"*^*°*- (m) Scottitih rrovident Lintihdluu v. Jjuddam, 9 Times L. E. 385. {n) Davt'es v. Nat'mud Fire Co. (iSoi) App. Gas. 485, 61; L. T. i;6o. 60 L. J.]'. C. 73. ^ y J fir t J. J 3 , {()) Swete V. FitirUe, 6 C. & P. i. {f) Fowhen v. London and MuncheMer An.wrmice Co., 8 L. T. N. S. 309, 32 L. J. N. S. Q. B. 153, 3 B. & S. 917, II W. K. 622 ; but ride Thoimod V. Weems, 9. App Gas. 684. {q) British E(initable Inmrtince v. Musymcc, 3 Times L. R. 630. ^ . r «IUm &w n 172 THE r.AWH OF INSURANCE. person whose life is insured. The word "usual" implies having attended more than once (/■). JroDg medkai ^^ ^^®^® ^"^ '^ reference to a man who hud been the man. medical iittendnnt, and no reference to the person wlio was the medical attendant of the life insured at the time the policy was eflected, such an omis- sion to refer to the proper person would vacate the policy (s). Place of residence. Assured in gaol. Meaning of "residence." i W The assured being in gaol at Fisherton Auger, hut who had previously lived in her own liouse at the same place, emidoyed an agent to effect a policy of insurance on her life. One condition of the insurance was that a declaration sliould be made of the state «)f the health of the life insured, and the agent stated that he had proposed on behalf of Elizabeth Kwayne (the assured), of Fisherton Auger, and that she was then resident tliere. It was stipulated that the policy was to be valid only if the statement were free from all misrepresentation or reservation, and it was held to be a question for the jury whether the imprisonment was a material fact, for, if so, the keeping it back- would be f tal to the recovery of the money from the insurance oompauy (t). The term " residence " in the proposal for an insurance means the place where the proposer is living or residing at the time of making the proposal, and not where lie has been residing before or where he is going to reside afterwards ; therefore, where, in a proposal to an insur- ance office for a life policy, the proposer gave as !iis residence the address where he was then and was groag to be at for the next three months, althou._;.i lu usually resided in Ireland, and returned there tliree months (/■) Huckmaa v. FtruU; 3 M. & W. 505, 520, 7 L. .J. N. S. Ex. 161, 2 -inr. /<,44. •" (a, / rerett v, JJenftorouffh, 5 Bing. 514, per Best, ( '..J. :.; 'iuifvi mil V. Jiui/ley, 6 'I'aunt. i86. signmg •Ig MiaHEl'UKSK.NTATION AND CONCEALMENT. afterwards, it was held that the place of residence was not untruly stated (//). 173 The plaintirC having one of several warehouses uoxt Concealment but one to a boat-builder's shop which took Hre, onJ^d"™u't' the same evening after that fire was apparently extin- F^mises. j,aiished insured that warehouse without apprising the insurers of the neighbouring fire. Though the terms of the insurance did not expressly require the coni- munication, it was held that the concealment of this fact avoided the policy (x). A statement true as far as it goes, but not the whole statoment truth, and not a complete answer to the question P'*''"*"y "■"»• which it proposes to answer, is untrue witliin the meaning of a condition that "any untrue statement sludl avoid tlie policy " (?/). But where, in answer to a (piestion as to the name and residence and profession or occupation, the proposal stated "A. B., of S. Hall, Es(|uire," the person being an ironmonger though resident at S. Hall, and being also an esquire, the statement was held not to be untrue, though it was imperfect (z). If an applicant for life insurance is required to Applicant answer material questions, and to sign his name thereto I^J'/woTbefore as part of the application upon which the policy is siguing. issued, it is his duty to read the answers before signing them, and it will be presumed that he did read them (a). If a life policy, on which premiums have been paid, Mistaken is void by reason of untrue representations as to [.Xgf ^.eS;ory — of premiums. {u, Oroga)i\. Ijondon and MaiMheHter liidmtriul Co., e^x L T 761 2 Times L. R. 75. jj • / i (x) Bufe V. Tiiriin; 6 Taunt. 338. {y) Cazmove „. Brlthh Equitable, 6 C. B. N. S. 4:57. 20 L J G P 160, I L. T. N. S. 484, 5 fur. N. S. 1309. 8 W. R. 243! ''^ ''■''• ^- ' ' {z) Pernm v. Murint oiid Ocneml Travellers, 2 E & E -in 20 L..T.Q.B. 17, 242, 2 L. T. N. S. 633, 8 W. R. 563, 6 Jur. N. S," 69. 627 («) New York Lift V. Fletcher, 117 U.S. Rep, 519. ^^^^^ 174 THE LAWS OF INSURANCE. What must be stated under tha general question. Description substantially correct. material facts in the applications, made without design on the part of the applicant, the only recovery which can be had on the policy, after the assured's death, is for the premiums paid on it (b). Under the general question put by an insurance office, "Is there any other circumstance within your knowledge which the directors ought to be acquainted with ? " it is the duty of a party effecting an insurance to communicate to the office information of every fact which any reasonable man would think material, and it is a question for the jury whether any particular foct was or was not material (c). If the description of the property be substantially correct, and a more accurate statement would not have varied the premium, the error is not material ; hence where buildings were described as built of brick and slated, but it turned out that one of the buildings was not roofed with slate but with tarred felt, and no higher premium would have been charged if the fact had been disclosed, it was held that the mis- description was immaterial and not sufficient fo vitiate the policy (d). But concealment of the fact that a wooden building behind a warehouse was used as a kitchen has in Canada been held fatal (c). A statement that no fire is kept and no hazardous goods deposited refers to natural use of fire and deposit of goods (/). Effect of Suppression of a fact material to the insurance com- concealment as , , ,. i , , against pur- pany to know, discovered between the acceptance by nS"^"^""* <^he office and payment of the first premium, will avoid (/;) A'ew York Life v. Fletcher, 117 U.S. Rep. 519. (c) Lindenau v. Dexborouyh, 8 B. & C. 586. London As^iirmire v, Munsd, L. K. 11 Ch. D. 369, 48 L. J. Ch. 331, 27 W. R. 444. {d) Ke Unimrml Non-Turiff Fire. InauraHce, Forbea' Cluiw, L. l\. 19 Eq. 485, 44 L. J. Ch. 761, 23 W. K. 465. (e) liarsalou v. Boyul, 15 J.r. Can. Ken. i, (/} Dobson V. iS'oiheb)/, i 3Iu. & M. 90.' 175 JIISREPllESENTATION AND CONCEALMENT. tlie policy even as against a purchaser for value without jiotice {g). And wliere one insurance company induced another Misrepresenta- insurance company to grant a policy by way of re-assur- company to ance on the representation that they, the former com- a'^'^'ner on pany, intended to retain part of the risk, which, however, '^""''"™''''^' tliey subsequently got rid of by a further re-assurance! the policy was declared void {h). Where it was stipulated that in case of an untrue Effect of statement all moneys paid on account of the insurance repreTntTtio'n, sliould be forfeited and the insurance itself should be T^®*"® stipuia-' null and void, both the policy-money and the premiums untrae^tate- wore forfeited by a statement as to the health ofShar'^ the life insured, imtrue in point of fact, though not '^°''®y P***^- within the knowledge of the party making the state- ment {i). If although a material fact were misrepresented or Disclosure of suppressed at the time the insurance was effected, it before ^^a^ ^""^ was disclosed to the insurance office before the money pent by*^ was paid, so that the payment was made by them with '°™''^''" full knowledge of all the facts, the insurers cannot after- wards recover the money back {k). The Courts will, at the suit of the insurer, order a Order for policy to be delivered up to be cancelled on the ground ^ciir'on"^ ""^ of fraud in effecting the insurance wh«n the instrument ground of is not void on the face of it ; and in such case the ^™"*'" plaintiffs have a better equity if they bring their action in the lifetime of the assured than if they wait until after his death (/). The assured cannot lessen his obligation to disclose Private know. ledge of ((/) Britinh Eijuitnhle v. Great Western Bailimu Co. 20, L T N S 422, 38 L. J. N. S. Cli. 314, 17 W. II. 561. ^kl Trf I- ^'"■'■''S', 4 Giff. 485, 10 L. T. N. S. 215, 33 L. J. Ch. 521, 12 W. It. 678. -' vyj J , (/) Duckett V. WilUams, 2 Cr. & M. 348, 3 L. J. N. S. Ex. 141. (Ic) Bilhie V. Lumbei/, 2 East 469. Win,, v. Haroe.i/, 5 De (1. 31 & G 265, 23 L. J. Ch. SI I, 2^ L. T. 120. 18 .Tiii-. ^o^ ■> \V n ',',0 ?as (l) Feni V. Crai,j, 3 Y. & C. Ex. 216, 3 Jur. 22. 176 THE LAWS OF INSUEANCE. New policy issued on old application. A room described as a " dwelling- house." nZffecr ^ .^''^^ ^^ speculating on what may or may not be in the assured's duty, "lind of the insurer, or as to what may or may not be brought to his mind by the particulars disclosed to him by the assured, if those particulars fall short of the fact which the assured is bound to communicate (m). If a policy is issued and declared conditional on the truth of an applictii.on which does not in fact contain a just and true exposition of all requisite facts respect- ing the condition of the property, and subsequently a new policy be issued at a reduced premium but without a new application, the new policy will also be con- ditional on the truth of the old application (71). When a man has only one room in a house and insures his goods therein, describing the place as the dwelling-house of the assured, he will be entitled to recover even with a condition that the house, buildings, or other places where goods are deposited shall be accurately described, since such description goes to the structure of the house and not to the interest of the assured therein (0). SpSsS!'"" ^^^ ^""^^"« or other place where goods are de- posited must be correctly described (p). But the wrong description arising from the act of the insurers or their agents is no defence (q). The condition as to accurate description of premises relates to their construction and not to their tenure (/•). m&plenta- ^^ .^' "'"^^ ^° «<^^^^' ^^ ^ P^l^^^ ^hat misrepre- tiou as to part sentation as to part of the property assured shall avoid liurT"*^ ^^6 policy as to such part. In Canada the Courts have (m) Bates v. Ilcidtt, L. E. 2 Q. B. 595, 606, 36 L. J. Q. B. 282, 15 W. K. 1 1 72. (?0 Martin v. Home hmurance Co., 20 U. C. (C. P.) 447. (o) Fri'edlamler \. London An.wra lire, i Mo. & R. 171. (i>) r'aney v. Gohhmhl, 2 Lr. Can. Rep. 200, 4 J.r. C:'an. Rep. 107. (q) bomerx v. Athevaum, 9 I.r. Can, Rep. 61, 3 Lr. Ca7i. Jur, 67. Londo)!, Lrrerpool, and Globe \. Wyld, i Canada (S. C.) 604. ,^ (?') Fnedhindvt V. London Assurumt, i Mo. & R. 171. been incli tion (.s). '. of the conl of insurant difficult tc as to inci insurance (and it wc to that effe Such pc divisible, bi policy," noi should be v as the polic consideratio the premiui absence of part should assist the aj risk is distr merely to li: not to divide were insured separately v; of the house for loss to th tract was div the loss to th Eithei pa (.v) Butler V.St, ('0., 29 n. c. (Q. (t) Phillips V. ( per Cameron, .J., /«) Gore Dist) '(I'slonan v. Land (■'•) IJopkiim V. 7 Kx. 23s, 240. Vj) Gore DiHtri 421. 26 IJ. c. (0. (*) Schuster v. . ings, MISREPRESENTATION AND CONCEALMENT. been inclined so to hold independently of the eondi- tion (,s). The question seems to turn on the divisibility the contract When there are two express subjects of insurance, the house and the goods therein, it is difficult to see on what principle a misrepresentation as to incumbrances on the house should avoid the msurance as regards the house, unless some special r^l '/ rf?A^' ' ^''^ ^'''^^ ^^^^^^^°" were made to that effect (t). Such policies have been held in several cases in- divisible, but they contained a stipulation that " the f'T.\"''^i^'^ ^^'^ ^^'' '"^^^^"S to the buildincr should be void in the event which happened U). And as the policies in question were not for two distinct considerations (x) but for one entire consideration, viz the premium on house and goods, the Courts, in the absence of a condition that misrepresentation as to part should avoid the policy in part, were unable to assist the assured, saying that where in a policy the risk IS distributed between the two subjects, this is merely to limit the liability in respect of each part, not to divide the contract (y). Where house and goods s paiately valued, a misstatement as to the ownership of the house was in New York held fatal to a claim or loss to the house, but it was also held that thecon- rac was divisible, and that the insured could recover the loss to the goods (-). Jither party may be innocently silent as to WLat neither ~ _ party need 'b?."a (q'' ut';? '■"■'■ " '■• "■ ('^'>") 399. A» V. M.„„„,, ,fe., "'"'""'■ J^-"S:i: X'" "'"'" """"'"" "'"■■ "^ •'■ '^- («• M m («) Gore District Mutual Fire v Sumo ■> rnnorl. ,^ ^^ . 7 Kx. 235, 240. ^' '*'''"' 4 ^- «• 576, 591. Harris v. Venahles,L. R. J^}^^'c'fi^% f I;j:- t'r' ^f ^"'^'^ ^«- ^-^ 4' '. per Ritchfn. .T (*) >^chmtery. IhUchc.ss Ins. Co., 182 N. Y. 260. M i;7 «sa» ; i §3 178 THE LAWS OF INSURANCE. What insured need not mention. grounds open to hoth to exercise their judgment upon (ci). The insured need not mention what the insurer knows, nor what he ought to know, nor what he takes upon himself the knowledge of, nor what he waives being informed of, nor what lessens the risk agreed and understood to be run by the express terms of the policy, nor general topics of speculation, as, for instance, the insurer is bound to know every cause which may occasion natural perils, such as the difficulty of the voyage, the kinds of seasons, the probability of liglitning, hurricanes, earthquakes, &c. (&). (rt) Carter v. Boehm, 3 Burr. 1910, per Lord Mansfield. (&) Per Lord Mansfield, Carter v. Boehm, 3 Burr. 1910. Bates v. Heioitt, L. R. 2 Q. B. 595, 605, 36 L. J. Q. B. 282, 15 W. R. 1172. All pol declaratc policy is some ext implied 1 to the ef not satisl Others p: to the ac( events in Others d otliers liii Theru to forfeit plain wo followed, not suffio Nor pe makes tl insurers, conduct s from sett instrumen confirmati (a) Want V. Union Mu (h) Armstr Wlmj V. ffar 18 Jur. 394, AgrmdtUTal ( 179 ) CHAPTER Vlir. co:nditions in policies. All policies contain a certain number of conditions declaratory of the terms and limitations under which the policy is granted, and of the duties of the assured, and to some extent imposing duties upon him in excess of those implied by law. Some such conditions are precedent to the effectual making of the contract, and if they are not satisfied, the policy does not take effect at all. Others presuppose the contract made, but are precedent to the accrual of a right to sue thereon. Others declare events in which all right under the contract is forfeited Others deal with the mode of settling disputes, and otliers limit the period for bringing a claim. The rules as to forfeiture of real estate do not apply Forfeiture to forfeiture under conditions in a policy, and theio'cSeuot plam words of the policy must be adhered to and ''PP^cabie. followed, and performance on the cy prds doctrine will not suffice {a). Nor performance of a condition contained in a policy Condition makes the policy voidable at the election of the ^'''''^'■• msurers. They may waive the forfeiture, or by their conduct after notice of the breach estop themselves from setting it up. " The word void in a private nistrument can rarely if ever exclude the possibility of confirmation " (6). ^ •!%»• S2 Ne'dl i«) Want y. to 12 East 183, 187, per EUenborough, C.J. V. Union Mutual, 45 U. C. (Q. 13.) 591, 609. (h) Armstrang v. Turquand, g Ir. C. 1, 22 az hpi- Pl,r,-<.t;o« t mu, V. ITarvey 5 De G.'m. &l 265. 23 L.^J.' it !u 2, L T i20 18 Jar 394, 2 W. R. 370. ramdc!' Landed Crdl'CoKcamfa Agrmdtural lamrunce. Co., 17 Grant (U. C.) 418. ^^ana,ta i8o THE LAWS OF INSURANCE. New agreo- meut after broach of condition. Mode of waiver. A new agreement may be relied on either as waiver of a breach of the original contract or as a substituted contract. In this case the question by whom the agreement was made is material, since some agents of a company may liave an authority to make new con- tracts which others have not (c). When a breach of a policy not under seal may be waived in a particular way, and the insurers would be obliged to waive it if the assured performed the re- quisite acts, there is nothing to prevent the insurer from waiving the breach in other ways (d). Where the assured has not disclosed incumbrances on the property insured as required by a condition in the policy, a resolution of the directors of the company to pay a loss under the policy made in ignorance of this breach of condition is no waiver of such breach, and they are free to rescind the resolution and defend the action (c). Compromise in go also, if in ignorance of a fraud avoiding the policy Ignorance of ° ° f^'^^^j facts. they compromise the claim, they may get the compro- mise set aside (e). Fire policies. Though by the general principles of insurance law Condition as to , • i • ^ . • . misdescription any material misdescription or misstatement of or menr"*^^"'" omission to state facts material to be known for esti- mating the risk avoids a policy, most fire policies contain an express condition on the subject (/). The first condition in a fire policy usually (g) declares Eesolution to pay made in ignorance of breach no waiver. (c) Supple V. Cunn, 9 Tr. C, 17 C. B. 64s, 652. {(I) Supple V. Cann, 9 Ir. C. (e) Stainfon v. Carron Co., I Swans. 137. P/i ill tps V.Grand (Q. B.) 334. Queen Insurance a very full case. Hercules Co. (/) Benson v. Ottawa, 42 U (g) Such condition usually description of any of the proper . L. I. British Indiistr;/ Cu. v. Wttrd, L. I. 10 Jur. N. S. 373. Dunnage v. White, River Fire Mutual Insurance Co. , 46 U.C. Co. v. Devinney, 25 Grant (U. (I.) 394, v. Hunter, 15 C. S. C. (ist series) 800. . C. (Q. B.) 282. runs as follows :—" Any material mis- ty proposed to be hereby insured, or of tliat misc or in wh niisstatei known f( us to the statement This c( tions rels the prem: selves ex] and soun( extent of The ge condition, totally ex( that is to all that is referred tc provides t policy as therefore the contn benefit the regards thf representat tion of thf than that ( inisrepresei his policy ( any buildings any misstaten known for ee priipeit^ affect respectively." (/<) Per limn V. Conimercial 6 Scott N. R. c (') Cashman (jtire District 1 CONDITIONS IN POLICIES. l3l tJiat misdescription of the building or place to be insured or in which goods to be insured are contained, and any misstatement or omission to state facts material to be known for estimating the risk, shall avoid the policy as to the property affected by such misdescription, mis- statement, or omission. This condition deals with statements or representa- Condition tions relating to the actual position and character of Jj^j^^'epresenta- the premises insured, in order (as the insurers them- '°"' selves express it) that their agent may form an accurate and sound opinion and judgment of the nature and extent of the risk. The general law of insurance, independently of the condition, visits any material misrepresentation by totally exempting the insurers from liability, because all that is to be done on one side is the consideration for all that is to be done on the other, all the promises are referred to all the considerations {h), but the condition provides that the misrepresentation shall avoid the policy as to the property affected thereby. It may therefore be contended that under the condition the contract may be treated as divisible, and the benefit therefore be lost to the assured only so far as regards that part of the property affected by the mis- representation. Such a result would make the opera- tion of the condition more favourable to the assured than that of the Common Law, under which a material misrepresentation would take away the wliole benefit of his policy (i). any building« m which property to be so insured is contained, and any misstatement of, or omission to state, any iact material to be known for estimating the risk, renders the policy void as to the EjSefy " ^^ '"'^' nnsdescription, misslateiLnt. or omLlon ill\ Pot- l!i',>r,^nTo11 1} /:/ V... I' .1 T 1. ., V. 6.Sc (A) I'er lirumwell, B., Ilorrh v. Venuble^, L. li. 7 Ex. 240. WmUiimoa R. 982, 12 L. J. C. p. 2 (') Cashnan Uore ])it,uhm and Lwerjwol Co., 5 Allen (New Bruns.) 246. />,i„„/ /<,,;■ V. ^'i'amo, 2 Canada (S. C.) 411. il ••*<; !==» ?5o &0 User of tbiugs iusured. Cot Ution as to alteration. Removal. li^^ thp: laws of INSUKANCE. The second provision made by fire conditions is as to the use of the property insured, and provides against increase of the risk after insurance, unless assented to ; also that property removed from the place where the risk has been taken to any other shall cease to be C(jvered on such removal (k). Policies cease to attach to goods removed both by the general principles of insurance law and a par- ticular condition, which, however, provides that assent or sanction of the insurers may be obtained and indorsed on the policy. In some cases the policy even provides for the covering of other goods or risks pending its term. Huepenso of In America, conditions are framed dealing specifically IwbiddoiMises. ^vitli rock oils and volatile oils and burning fluids, forbidding their use and making the insurance ineffec- tual so long and only so long as the forbidden use continues (/). I'olicies containing such conditions are not avoided, but only suspended during the presence of such articles on the insured premises. Breach of The insured in a fire policy is not relieved of re- manager'^of die sponsibility for a breach of a condition against keeping l!«1rl"^ **'*' inflammable oils by the fact that such breach occurred through the orders of the husband and manager of the tenant of the assured (m). It will be for the insurers to prove the character of the substance in respect of which they claim such exception (/<). (/.■) Sucli conditions are usually as foll'jw.s : — " If after the risk lias been undertaken by the insurers anything whereby the risk is increased he done to property, or to or upon or in any building in which pro- perty hereby insured is contained, or if any property hereby insured be removed from the place in which it is herein described as being con- tained, without in each and every of such cases the assent or Siinctiou of the insurers signified by indorsement hereon, the insurance on the properly affected thereby ceases to attach." (/) I'atnnni v. Vommonivcalth Jnnurancc Cu., i8 Blatch. {U. iS.) 369, and cases there cited. {ill) LirerjXHil, Loik/oii, aiitl Gluhe v. Giuither, 116 I'. S. 113. (11) Ihwhanaii v. Jyxc/taii(/t: I'^ire Co., 61 N.Y. 25. Jlearn v. Hitm- ho/i/l, 37 Am. liep. 647, 92 Tenn. iSt. 15. Difl^icul forms of ] indorsed ,siibject-m£ iipplicatioi in the bod subject to and hereOi applicable Thus a cover a s! laore than on " the p should no lield tliat 1 tlie ship fc tiie word subject or usage as tc was admis a steamer Diflicull the incorp by referenc 'Vnd if i it a ■ consi Wiien a poHcy as e it will avo (0) Gmiidl (p) Beacon 7 L. T. N. S. (q) The Su Auothtr, II 'I CONDITIONS IN POLICIES. 183 I )ifficulties mcjy be and have been caused by issuing Inapplicable forms of policy without striking out those conditions •^"'^^'*'°'>»' indorsed on the policy which are inapplicable to the .subject-matter insured, but leaving the question of the iil)[)lication of the conditions to the proviso (if any) in the body of the policy, " That this policy shall be subject to the several conditions and regulations herein and hereOi. xpressed so far as the same are or shall be applicable " (0). Thus a policy framed for buildings was issued to cover a ship. The 7th condition stipulated that if more than twenty pounds of gunpowder should be on " the premises " at the time of a loss, such loss should not be made good. And the Privy Council lield tliat the word " premises " must be taken to mean tlie ship for the purposes of the said policy, and that tiie word having a clear legal meaning, viz., " the subject or thing previously expressed," no evidence of usage as to carriage of gunpowder in ships as freight was admissible to show the condition inapplicable to a steamer (p). Difficulties of construction have also arisen through • the incorporation of the conditions of another policy by reference (q). 'Vnd if a policy, ^hough improper in form, be accepted 'ired, he must be taken to have read it, and it iJ hat he should be bound by the proper legal consi a thereof. Wiien a business classed in the memorandum on a increase of poHcy as extra hazardous is carried on after insurance, it will avoid the policy, and the verdict of a jury that ;:!ia» 250 i I ' {0) Grandlnx. liocluxter Co., 107 I'enns. 26. (p) Beacon Life und Fire Co. v. Gibh, i Moore P. C. N. S. 73, 7 L. T. N. S. 74, II W. E. 194, 9 Jiir. N. S. 185. (n) The Sulphite Pulp Comjxiny, Limited, and Others v. Ftiber and Aaothtr, 11 Times L. R. 547. "^ , 1'"E LAWS OF INSURANCE. it does not increase the risk will be set aside (A n would be otherwise if the fact tluit tlie company con- sidered the business extra hazardous was merely in the instructions to agents (s). bSL?* , ^ <^^^ange in the nature of the business carried on in tlie assured's premises, whereby the risk is increased and without proper notice, avoids the policy (/) even' where the increased risk is caused by a tenant without his landlord's knowledge (,i). J]ut it has been held in Canada that notice of the change of business to tlie insurers agent, without sending in the policy for indorsement, will suffice if there be no condition to tlie contrary (x). SStKf .< .7^,^'''' ^ ^'^ ^^^'^y i« subject to a condition that policy. It by reason of a change in the risk, or from any other cause whatever," the insurers desire to ter- minate the assurance, it should be lawful for them to do so on refunding a rateable proportion of the premium, the policy is determinable at the will of the insurers (>/). Selling liquor. Selling liquor by retail has been held in Canada not to be an increase of risk where a policy has been taken out on groceries and patent medicines. But in England spirit-selling is a hazardous trade, and a grocer could not become a licensed or unlicensed retailer of spirits without risking his insurance (,:). Tavern. Change of occupation from a private house to a tavern without consent of the insurance company (') Same'ct.^". ^''""'""'"^ ^'"'"'""'' ^'"■' '^ ^- ^- («• ^"^ 439- K^Vi^! '■ ^'"'''"''''^'' ' ^- ^ ^'- "79. 6 A. c^i K. 75, 6 L. J. N. S. rvl'v ^rH^J' ^^''t'' •5Sc:^'"^?«P- 532. Liverpool and Lo„chn, ,tv., f-o. V. Otntther, g Davis (Sup. Ct. U. S.) 113 ' ' (x) P'cky Pho'iux. Mutual Insurance Co., 45 U. C. (Q. B ) 620 P. c! e'^r^/w! S^^eu- """"' '' ^PP- ''''■ ^'' ^° ^- 'T 33;, SSL. j. (.:) .\!rhi,lxi,n V. Phanl.r J/ii/na/, 45 IJ. C. (Q. j>.) ^^g would increasir within t after a c ness whi it seems, One ( unless t] and if a not notic and ano siiould b given to void (c). only for ( to dry ba given to 1 was held insuring, could brii fully perf( 6tli condj permaneni dropped h of bark-dr """-■oti woulc single act tion, and t In Glen placing a using it ir the purpos (") not d. {h) Camjibei (c) See alsc M. & G. I, 12 ('/) Shaio V, K. B, 106. ('') 8 E.\. 60 CONDITIONS IN POLICIES. jg- would avoid the policy under the condition against nicreasmg the risk ; but a coffee-house is not a tavern within this rule (a) ■ and if the change be to a tavern after a change to some other equally Iiazardous busi- ness which the company have allowed, the policy will it seems, hold good {b). . One of the conditions (3rd) of a policy was that Conditions as unless the trades carried on be accurately described »»"««)• "^ and if a kiln or any process of fire-heat be used and S^""'' not noticed in the policy, the policy was to be void • """"^"'' and another condition (6th) stated that if the risk sliould be by any means increased, notice was to be given to the office, otherwise the insurance to be void(c). The assured lent his kiln, which was used only for drying corn, to another person on one occasion to dry bark, which was more dangerous. No notice was ci^nge of use given to the insurers, and the kiln was destroyed It ^^'^ increase was held that the 3rd condition related to the time of "^"'''' nisuring, and that nothing which occurred afterwards could bring the case within that condition, which was fully performed when the risk first attached ; that the 6t]i condition pointed to an alteration of business permanent and habitual ; and if the plaintiff liad either dropped his business of corn-drying and taken up that ot bark-drying, or added the latter to the former the --.oo would have been within that condition. But the smgle act of kindness was no breach of the 6th condi- tion, and the plaintiff was allowed to recover {d). In Glen v. Lewis {e) the question was whether the aien. raoi. Piacmg a small steam-engine on the premises and ^^^® ^^' ^*y ^^ using it in a heated state to turn a lathe simply for conS^t tlie purpose of ascertaining by the experiment whether '°"'^'"°''- In n"' '\- f " \-/'^>mh(,, 4 Camp. 73. \'>) ^""WMlx. J^verpool and London F;,-p -n^ !• r- i jJ2 ^ " ''"''"•'^'^■' ^ ^- ^ P- -79. 6 I & E. 75. 6 L. J. N. S. (^) 8 Ex. 607. 22 L. J. Ex. 22S, 31 L. T. 1,5, ^^ Jr.r. S42. §5 StSM •So isr. Oven. TirE LAWS OF INSUKANCK. it was worth tlio plaiiitiir's while tn buy it, avoided tlio polii-y, huviiij,' rei^'anl to its conditions, ono of wiiicli wus that in caso of any alteration in a huildinj,' in- sured, or of any steani-enj^'ine, &e., or any other de- scription of fire-heat hein^,' introduced, or of any trade, business, jtrocess, or operation bein^ carried on .... notice nnist he ^.^iven, and every alteration bo allowed, &C., otherwise no benelit should arise to the assured in case of loss. I'arUe, !>., in jjjivinjj; jiulninent. said: " The clause implied that the simple introduction of a steam-engine without lire will not alCect the policy, but it will if lire is put to it. It nudces no dillerenco whether it is used on trial or as an approved means of carryin«j: on the parties' business, nor does it make any dillerence that it is used for a lon<>'er or a shorter time." i\nd referring' to JS/kiw v. lloblwrdfi, the learned liaron said: "That case is the only one which ap- l)roaches the present, and we cannot helj) feeling' that the construction of the policy in that case may have been somewhat inlluenccd by the apparent hardship of avoiilin-;' it by roason of the accidental and charitable use of the kiln, the subject of the assurance. If iu that case the condition had been, inter alia, that no bark should be dried in the kiln without notice to the company, which would have resembled this ease, wo should have been far from thiidlo,>, 3 H. & 1?. S68, 23 f.. T. 187, 18 Jnr. 74S, 2 W. 15. 524, 2J I.. .1. Q. I!. 362. JUnrtI V. Jtrmii, 3 Ex. 535, iS I,. .1. Whore house, un preniium his insur ciilianced suited, 01 liiiu to bi Leavin risk, and Whether depends ( does not I sidercd ii cases are (Vasinj lieen lieh condition risk throi IH'iven tlui the I)uildi unoccupie Notice bo given 1 too long ( 1 )escrii the coluni blank aiul ing until ( to give nc Kx. zii. (! h.'W 115. 161, 3 .lup. I (H) Ji'cid \ ('/() Ahruh And set' Jien (/) Foi/ V. (/.) CiiikkI 17 Gniht (ir, (I) Lonik'! CONDITIONS IN I'OI.ICIK.S. 187 Whore the in.sured put up an engine in u brick iirectlou of liouse, and the insurer's uj,'ont ;,'{ive notice that increased ""»'"•• |nvmiuni would he required, and assured applied to his insurers and elsewhere for insurance thereon at I'lihiinced premium and was refused, he was non- suiLcd, on the ground that the policy was known by liiia lo be void (//). Leaving the premises unoccupied may increase the Non-occupu- risk. and if it does will be within this condition. S.'"""""''"'^ Whetlufr non-occupation lessens or increases the iisk depends on circumstances. Tlu; whole (piejtion, which does not seem to have arisen here, is very fully con- sidered in a Canadian case (k), where the American ' cases are cited and discussed. ('easing to occupy without fraudulent intent has been held in New r»runswick not to come within a condition avoiding the policy in case of increase of risk through change of (jccui)ation, uidess proof were Hiven that under the circumstances and position of ihe I)uilding it was more liable to destruction when unoccupied (i). Notice of vacancy if ro([uired by a condition must Empty house. be given in reasonable time. Three days will not bo too long (/,). Description of the building insured as a farm-house, Chanj,'<« of the column for the name of the occupants being left '"=*="P'*"<=J'- blank and the prenuses being at the time, and remain- ing until the loss, unoccupied, is no breach of a condition to give notice of a change of occupancy (I). S>9 Kx •.X. J15. (,'/,„ V. A'fr/.v, 22 Ti. J. Ex. 228, 17 Jiir. S42, 8 Kx. 607, -m i. T. 115. ,SVr./,-rs' V, Vo.r, I II. & N. 533, 26 L. J. Ex. 113, 28 L. T. 161, 3.1ui-. N.S. 45, 3 W. 1!. 89. ill) llc'id V. lion: D'isi rirt Miitnal, 11 U. C. (Q. U.) 345. (/() Alivuluans v. Jf/ricidtunil liisanivcc < 'o., 40 U. C. (Q. J>.) 175. Aiiil siH^ lUiini'll V. Agn'tiiltnrdl Co., 50 ( 'onn. 420, (1) l'\>ii V. Elna, (Ic, (\>., 3 AlliMi (Nuw liruiis.) 29, (/,) Ciiiindn Afirlriilturdl Credit Co. v. Caiidihi JUlvlutd Fire C„ , i7CiraHt (l^(^) 418. (/'; l^Di'dnii and Litiiciinltirt: Co. V. Hoiniij 2 Victoria Law 7. ^ I ) ' f 1 ; J i88 THE LAWS OF INSURANCE. Condition as to disclosing other insur- ance must be observed. Policy acci- dentally over' lapping. The importance of being informed of the names of tlie offices which are jointly interested in a risk is obvious to all who have any acquaintance with the law and practice of insurance, and nothing, therefore can be more reasonable than that the persons assuring should stipulate for information being given as to the offices in which other insurances are existing or are subsequently taken out ; and it is competent for them to stipulate that if any erroneous or untrue representa- tion be made on this point the policy shall be void, and if they do so, the Courts cannot hold any part of the representation immaterial (m). But if they want the information they must stipulate for it (71) ; and failure to disclose it is not fraud (0). Breach of a condition that other insurance shall be notified to the grantor of a particular policy, and notice thereof indorsed on the policy or otherwise recognized by the grantor, is, unless waived, absolutely fatal to any claim on the policy. The condition can be, of course, broken only by the failure to disclose insurance iii companies other than tliat by which the policy containing it is granted (p), and by policies actually on a portion of the same risks' (>/). A mere possibility that some portion of the risk covered by both policies might accidentally coincide would not, it seems, constitr ;e such a double insurance as IS meant by this condition (r). Tiie existence of a marine policy on goods which are landed and ware- housed for a special purpose will not vitiate a fire policy made on them by breach of this condition, as the under- JA^'''''"Z ''• ,f"i"'i ^ '"■' 4 U. C. (A pp.) 326. m^teru Assur- anee Co. v. Attwelt, 2 Lr, Can. Jur. 181. (it) M'BoHell V. BeacuH Fire and Life, 7 U. C (C P ) io8 no[tS"lufgated!^'''"''' "'' ^""'"^ '" ''""' i-^i.glish'policieH/but l.a^,> ( ) Citisenn; ('ompaay of Canada v. Parson,, 7 App. Cas. 96, iiS. (/•) Per Prainwell, 15., in case last cited, L. K. 10 C 1'. 674. writers W( warehouse An ins sued upoi lapsed pol does not £ us to givii grantors t] existing w iiized it if Subseqi subsequen accordance But if t pany, in s some incr( other com] It has b were made of two con from settir the case of ledge of th of the prin Blachhurn assured, th An oniii which the granted on that effect (0) Per Brai (0 Pamonn V. Jlonarch In (u) Shnnnoi (v) 17 Q. B, (y) Citizem' Standard Co., can CONDITIONS IN POLICIES. 1 89 writers would not be liable while the goods were so warehoused (s). An insurance efteeted subsequently to the policy Condition as sued upon in another company in substitution for a f° "".^^®'i"®"* lapsed policy to the like amount in a third company "''"''*"°'' does not avoid the policy sued upon under a condition as to giving notice of a subsequent insurance, if the grantors thereof have had notice of the lapsed policy if existing when their policy was granted, or have recog- iiized it if granted after their own (t). Subsequent insurance may be treated as meaning s^ ..sequ6nt= subsequent and further, an addition which seems in ^"'^^^'■• accordance with common-sense (t). But if the assured takes out a policy in a bad com- pany, in substitution for one lapsed in a good company, some increase of liability to contribute might arise to other companies. It has been held in Canada that where two insurances Condition were made on the same property with one person, agent £r^* ^°^^^^ of two companies, the companies would not be estopped '"'"'^''°'' from setting up the condition vitiating their policies in the case of other insurance, on the ground that the know- ledge of the agent could not here be deemed knowledge of the principal (w). But if the doctrine laid down in Blackburn v. Vigors (x) is to apply alike to insurer and assured, this Canadian decision seems wrontr. An omission to give the names of other offices in other winch the applicant is insured will avoid any policy '''8"""»<^«- granted on the application where there is a condition to that effect Q/). it i i. ?5» SISm U) Per Bramwell. B., in case last cited, L. K. lo C. P 674 ( ) Far,ons v. Standard Insurance Co., 4 V. C. (App.) ^26 Facaud V. Jlonarch Imurance Co., i Lr. Can. Jur 284 ^* ^ (") 17 (fB' D ^"''' ^''*''''* '^^""""^' 2 ^- <^- , ^H l^ts* ^M &0 ' ^1 *^ i !':' ^1 t flH 192 other insurance on part of property. Ccnditiou against other insurance without notice Assignee in bankniptcy. Bankruptcy, Who may waive. Prior or subsequent policy. THE LAWS OF INSURANCE. The assured by taking the benefit of a policy effected on part of the same premises by another person will avoid the first policy where notice has not been given (m). ^^ A condition in a policy avoiding it if the assured or his assignee should effect other insurance and not with reasonable diligence, give notice and have it indorsed on the policy, binds the assignee in bankruptcy of the assured. By the bankruptcy he becomes owner of the whole insurance effected by the bankrupt for the bene- fit of the estate. His subsequent insurance in his own name with another company would, if recoverable enure to precisely the same interests; and the bank' rupt s resulting interest in any surplus of his estates after all debts, &c., are paid would be precisely the same under both policies (n). Such condition cannot be waived by an ordinary agent where the consent is to be written on the policy(o) An inspector, whose duties are to examine into the circumstances, adjust the loss, and settle and report is not an agent who can give such consent (p). He might waive a condition as to a written statement of the loss, that being within the scope of his duties. Provisions avoiding a policy for not disclosing other insurance apply to other insurance prior or subsequent to that m the policy containing the stipulation. A man may therefore avoid two policies by not ^vivino- notice to the grantors of each as to the existence o1 the other. But in America it has been held that if the assured could never have recovered on the policy of later date the prior policy is not avoided (q). i (m) Dafoew. Johmtown Mutual District Insurance Co., 7 U. C. (C. P.) («) Jackson y-forster, i R & E. 463. 29 L. J. Q. B. 8. 33 L. T. 290, (o) Gale V. Lewi,, 9 Q. B. 730, 16 L. J. Q, B. no. (p) Mason v. Hartford Fire, Z7 U. C. (Q. B.) 437. (q) Stace,, V. Franklin Fire, 2 Watt« & Serg. (FJiin.) 506 Wher tlie prev; and his ] a loss oc the polic; against fi An or( tlie assur( exchides expressly Iiouseholc surance, e valuino' tl risk of d( promissor Many per; conscious! effects, su( and watcl mentioned clothes, &( stipulation The ris own spont excluded b the particu arises, and ignited the (/•) Daile V. . (v) " This p sion, unless exj jewels, clocLs, prints, paintin, sopliical instri mentioned in tl notes, securitii loss or daniagt ferineiitatioii or civil commotio] explosion, exce ieibrred to in tl CONDITIONS IN POLICIES. jg- Wh.roaman seeks further insurance and notifies Policies the previous insurance, and his application is accepted Z'^tlu''' and Ins premium paid, but the policy not issued before issuS"'"' a loss occurs, the second insurers cannot object that tlie pohcy if issued would have contained a condition against further insurance unless indorsed (r). An ordinary fire policy only covers property in which What things the assured has a beneficial interest, and by its condition ''T'^^ ^^' exchides property held on trust or commission unless '"°''' expressly described as such (.). Sundry articles of Iiousehold furniture are frequently excluded from in- surance, either from their fragility or the difficulty of valuing them, and insurers will not take on any terms risk of destruction of deeds, bonds, bills of exchan-e promissory notes, money securities, or books of account' Many persons effecting insurances have not the sliiy." l» •^a* Sssa Independently of the cond' i, on, insurances against ib) Commercial Vnionv. CanadaMuung, die., Co., iSLr.Oan. Jur. 80. 196 ■I- J. Pledge to secure debt where uot withiu the condition. TIIK LAWS OF INSr RANGE. lire have never been assignable as of right like marine policies (c). But the particular mode whereby the assent to hold the assign insured shall be testified is purely matter of contract. The conditions are framed to exclude parol consents by agents of the insurer. Under this condition the policy is good for the executors or administrators of the insured, and also for a trustee in bankruptcy (d), or a liquidator on the winding up of an assured joint-stock company, or it would seem for a continuing partner unucr an assign- ment to him by a retiring partner (<;). It has been held tJiat a deed pledging the property to secure a debt, coupled with retention of possession by the maker and the right to sell in the usual course of his business and to redeem entirely by payment, is not such change of title as will avoid the insurance (/). And where a tire policy stipulated that if the interest of the assured " does not amount to the entire, sole, and absolute ownership it must be so represented to the company and expressed in the body of the policy, otherwise there will be no liability " thereunder as to such property or limited interest, the stipulation refers not to a matter of incumbrance, but to the quality and character of the title, wliether freehold, leasehold, or otherwise (g). Where freehold property is insured the policy enures to the real and not to the personal representative of the assured (h). (c) Lynch v. Dulr.eU, 4 Bro. P. C. 431. Sadler.s Co. v. Badcinh, 2 Atk. 554. As to French Law, see Fovii'tt v. Royal Inmrance Co., 16 Lr. Can. Jur. 34. „ . , ,, ,„ (d) Wordey \. Ifuod, 6 T. R. 710. Oldman v. Bewicke. 2 H. Bl. 577 note. Jackson v. Forater, 1 E. & E. 463, 29 L. .T. Q. B. 8, 33 L. T. 290. 7 W. R. 578. (e) Vide cases cited in note to Hathaway v. State Inmrance Lo., 52 Am. Rep. 438 ; but see contra, the principal case. (/) Nmsbaum v. Northern Insurance, 37 Fed. Rep. 524. Thompson V. Phwni'x Insurance, 136 U. S. 287. (f/'i Ellis V. Insurance Co. ^2 Fed. Rep. 646. (h) Parry v. Ashley, 3 Sim 97. Calberhon v. Cox, 43 Am. Rep. 204. CONDITIONS IN I'OLICIEH. If proiierty insured were sold and the contract was complete but the property not actually in the pur- chaser's possession although at his risk, the oricrfnal assured could recover nothing on tlie policy and the pur- chaser would be his own insurer. If the property was not paiu for, the question of vendor's lien might arise but if the property had passed from the vendor it is submitted tliat this condition would preclude him from recovering (i). When an assured is bankrupt, the property in the Bankruptcy policy having passed from him, he is not even a party to an action. on the policy, and consequently discovery cannot be had from him (/;). If property were seized and sold under an execution. Effect of It would seem that a policy upon such property would '-'^ecution. not cease to be of force under the condition, as the change of ownership would be due to the operation of law, the judgment and execution (I). A condition is sometimes inserted forfeiting the policy for seizure of goods under an execution or for dispute as to title. But the condition does not operate until there has been a change of possession, as It amounts merely to a stipulation that the policy shall cease to be binding in any case where the property in tlie goods passes by legal process from the hands of the assured (m). Such a condition is not wholly unjust and un-8eizm-em reasonable, for it is always an important matter to *'''^''"**°°- the insurers that the goods should be in the custody 78^'\f?'''ir\i'"*'7' )V-- ^- V'° •'• •^- ^-h' -^72' 44 L. T. N. S. n D^.-/^ •. 547- C'lstellaiiiv. Preston, ii Q. B. l'>v)6 ca T T ?■ l?^j^Vl '■ ?•!?• ''' '-l '^; «• 557- ^'"^ ^uih'R^k'k Law 6o "" ^^"'""'■'^' ^«-' 2 N. S. W. T.aw 230, 3 N. 8. W. T. n! flit''"" ^''''' '^'"'«''«"«« *"'>• V. ir//Z.v,, 23 W. It. 884, 33 I. 197 mm 1 i)M ii ^iimlji i|Lii § i ^ IP 3 h 198 TFIK LAWS OF INSUIUNCE. and ownership of the insured, whose interest ivlone they insure ; and, if they are taken from him, the damage and risk to the insurers are as great, whether they have been taken rightfully or wrongfully. But it is unjust to the assured that the policy should be determinable by the mere wanton or illegal r.ct of another, which the insured may have resisted as far as possible, and which he could not prevent. But a mere technical levy, which does not increase the hazard of the insurers v/hen the insured remains in full enjoyment of, and has the same power and the same interest to preserve, the property as before, does not seem within the condition (n). When a condition is inserted in the policy against alienation of the property, and th,. policy is assigned iTs^nmentof ^^ ^^® insured to an assignee not interested in the policy. property, such assignee does not by the assignment, and the assent of the insurers thereto, become tlie insured under the policy, and the policy still remains liable to be defeated by a breach of the condition by the assignor. In no caso can an assignment of a fire policy be validly made without the insvirer's assent (o). Mere notice of transfer will not suffice. Notice cannot compel assent (^O* Coudition against aliena- tion of pro- perty, Assignment known to insurers. Waiver of forfeiture. But if the insurers discover that an assignment has been made under such circumstances as to render the policy void, and on notice of a loss call for and obtain the proofs of Joss on the footing of the policy being in full force, ti 'Y will no longer be at liberty to elect to treat (u) Mdi/ V. Htmidttrd Fire Co., 5 U. ('. (App.) 605. ((>) Forgie v. Jioi/al Imuraace Co., 16 Lr. Can, .Tur. 34. Xein South WaleH Bank v. North Brttixh and Mercontile Co., 3 N. S. W. I«i\v 60. Kanady v. The Gore District Mutual Fire Co., 44 Canada (Q. B.) 261. (p) Canada, fjoiided Credit Co. v. Canada Agricultural Innuruncs Co., 71 Grant (U.C.) 418, 423. 394' 23 CONDITIONS IN I'OLIGIES. the policy as forfeited, even tliough the condition be that the policy shall not bind until the assignment is approved (q). A&sign7nent of claim on a policy after loss is not a breach of this condition (r). Where a total loss has hap])ened, the policy, and all claim under it, can be effectually and safely assigned. But in cases of partial loss, to assign the policy would avoid it as to the balance of the in=urance-money not payable in respect of the particular loss which already occurred (s). When a policy is issued to one person, the loss or p-o.eed8 of part thereof being made payable tD another person or [j^-'Sg^fP"- persons as their interest may appear, the last words are in reduction of the amounts specified as pa} able, and those persons can only claim up to the limit prescribed, even if more is due to them. The balance goes to the assured (t). 199 An insured cannot of course by assignment after condition broken enable a trustee to recover for him what he cannot recover for himself. If the assignee held the contract freed from the old conditions, it would amount to a different and less onerous contract than the one assigned. Assent to an assignment does not amount to waiver of conditions broken, mless such breach is at the time known (w). Consent with notice of breach is waiver of that breach, where a mortgage is effected, and if necessary assented to by the company ; though the mortgagee may be able to recover his mortgage-money, he cannot recover any surplus for Benefit of policy not secured by assignment after breach of condition. Mortgagee can't recove • for mortgagor who has broken condition. (i V. Ph,e»!.i', 136 U. S. 287. ,Steel v. Fhwuh; ii Rep. 715. ^ (') PenJey v. Beacon hmmmce <'<>., 7 Grant (U. C.) 130. {./) See, however, Lumlildii v. We^tfi'ii, 12 IJ. (J. (Q, B.) 361. SI Fed. rr<'liiniuiu-y proofs, \o. TIIK LAWS OF IN.SUltANCK. poriod has expired, even tliouj^Mi the time allowed for examining the proofs would have consumed it (//). The insured is in a sonunvhat bettor position where as in some policies, his time runs alternatively from tlio loss or refusal of the comj)any to pay. The same rule holds in the case of re-insurance, for the loss or damni'o is the injury, not the ])ayment of the loss, and an action brou. v. Et,i„ (\,., 16 V . (\ ((,). B.) 135. {i) Cinq J/(n>' V. k''iiiittil)le, 15 r. (.'. (Q.ll) 143, 2^6. posals vai llie assure |my liim, plying wi protection II conditio was ranch ago, but h been settL is effectua rrelimi of the ii] nature, ex condition for his b waive or c furnished, agreement An ins ground tli tion of tl want of p] by a denif such prooi The in notice to i devolves I knowledge spective 0; done, and (/■) Wursk uiicr, 40 Mini (/) l.tiinhni 43I-.T.N.W (m) See Ei 22S, as to tb proof's, tioticei ii-'f CONDITIONS IN I'OLIGIEH. 203 posiils various Htipulations for matters to bo done by llie assured making a claim before the company is to |)iiy liim, and (as the remedy by action for not com- plying with this stipulation could not afford them any protection) to make the fulfilment of those conditions 11 condition precedent to their obligation to pay. There ' WHS raudi controversy on the subject about a century ago, but since the case of Worsky v. Wood (k) it has boon settled law that this mode of protecting themselves is effectual " (/). rreliminary proofs are required for the benefit solely of the insurer, in order that he may ascertain the nature, extent, and cliaracter of the loss, and, since tlie condition in the policy in respect thereof is inserted for Ills benefit, there is no reason wliy he may not Waiwr by waive or extend the time in wliich the proofs are to be proofs!^^ furnished, nor is it necessary to prove an express iigruenient to waive (in). An insurer, l>y denying liability for loss on tlie ,L,a'ound that he was released therefrom by a cancella- tion of the policy, is estopped from objecting to the want of preliminary proofs (n). So also he is estopped by a denial of all liability before the time for making such proofs has expired (0). Tlie insured must immediately upon a loss give Condition as notice to insurers thereof. In London the same duty \l^°^^^^ °^ (levolvc's by statute on the fire brigade when they ha\'e knowledge of a fire. But the condition applies irre- spective of place or the magnitude of the fire or damage (lone, and many minor fires only doing slight damage, 1,: i 3e !Saia S>3 •:%s» 1^ (/■) U'or^Ii'i/ V. ir.w/, 6 T. K. 710. See&lso JJi-owh v. London J s.^^ar- uiicr, 40 Mini. (N. Y.) loi. (/) /.iiik/ou Ouiinnitei' <\>. V. Fedrnleii, S„n»:;.<< iV,. v. Hull, 55 Fed. Uep. (i(}l. ((') ficrimm Inx. Co. v. .Frcilerkh, 58 Fed. Hep. 144. Saw I 204 , THE LAWS OF INSURANCE. and to extinguish which the fire engines are not needed, come within the condition. The duty of the fire brigade does not affect the contract between the parties. Time for " Immediately " or " forthwith " means within a rea- giving notice, vi ^' i . , . ' i'- ica sonable time and without any unjustifiable delay (^;), and reasonable time has been held in America to lie a question of law for the Court in two classes of cases : Smeaq*?estion ^'^ Commercial transactions which happen in the same of law. way day after day, and present the question of reason- able time on the same data in continually recurrin<^ instances, so that by a series of decisions the reasonable time has been rendered certain ; (2) where the time taken is so clearly reasonable, or unreasonable, that there can be no room for doubt as to the proper answer to the question. A question of fact. Notice to local agent. Where the answer to the question is one dependent on many different circumstances, wliich do not con- stantly recur in other cases of like character, and with respect to which no certain rule of law has been there- tofore laid down, or could be laid down, the question is one of fact for the jury (q). Due diligence will be required in the notification even when the insurance is on interim receipt. Notices given eleven (r), or eighteen (s), days after the fire have been held too late, but one given five days after the fire, one of* such days being Sunday, has been lield in time by American Courts (t). Xotice to a local agent, it seems, will not do, unless ho is specially named as the proper person to receive it ; and if the particular (2}) Bohex V. Amizoa Jitsiinnice Co., 51 Miirylaml 512. <',i^]uni v. J\» i t •!ii2» f ii {h) Scott V. National, 4 P. Co., above (i 2490-2569. (/) Smith V. (m) HUldJe App. Cas. 372 (") Weir\. mid Globe, 17 (o) Oldmnn 6T. R. 7TO (I 21 L. T. 158. Plux-mx, Stuart (Lr. Can.) 354 (P. C). See Bowes v. & B. (New Bruns.) 437. Dill v. Quehec Assurance ted, I Kevue legale (Lr. Can.) 113; Lr. Can. Code Queen Inmmnce Co., 1 Han. (New Bruns.) 311. V. National Fire ami Marine, dx. of N'eiv Zealand (1896), Nortliern, 4 L. E. Jr. 689. Lafarge v. Lioerpool, London, Lr. Can. .lur. ;?37. V. Bewicke, i H, 131. 577 note (1786). Worsleuv. Wood, 796). Manoii V. Harvey, 8 Ex. §19, 22 L. J. Ex. 336, Stett Sao II 208 fraudulent claim by assured. Meaning of "full parti- culars." Condition as to verification of loss. False state- ment as to title not within it. Not necessary to apportion loss where claim against several companies. THE LAWS OF INSUKANCE. fifteen days, and then sent in a fraudulent and exagoe- rated claim, the fraud was lield to prevent the trustee in bankruptcy of the assured from recovering against the insurer (jt). " Full particulars " means " the best particulars wliich the assured can reasonably give," and the latter phrase is in some policies substituted for the former. If the proviso were more strictly construed, inadvertent omissions of losses or insertions of thiuf's not lost would defeat the claim of the assured (q). When a condition only requires verification of the statement of loss, falsp statements as to title and incumbrances cannot be relied on as avoiding the policy under this condition (r). Where there is a claim against several companies for the same loss, it is not necessary for the claimant to apportion the loss among the difTerent insurers in the preliminary proofs, althougli the policies require that the insured shall in case of loss furnish to the insurer a full statement of the loss and amount claimed (s). Provision that A provision that the loss must be paid sixty days a^certauf time" f^-^ter Satisfactory proof of loss does not give the insurer does not give insurer that time to object. Certificate of magistrate. sixty days within which to o'->ject to proof of loss (t). The conditions still found in American and colonial policies (n) requiring the certificate of a magistrate seem to have long since fallen out of use in this coun- ti-y (x), and only come before English lawyers in colonial ip) Me Carr ilj the iStm Fire, 13 Times L. 11. 186. iq) Mason v. Harvey, 8 Ex. 819, 820, 22 Ji J. Ex. 336, 21 L. T. 158. Etna Ins. Co. v. Peojile's Bank, 62 Fed. IJep. 222. (»•) lio8s V. Commercial Union, 26 U. C. (Q. B.) 552. {h) Fuller v. Detroit Fire and Marine, 36 Fed. Rep. 469. (/) Hamilton v. Phcenix, 61 Fed. Rep. 379. (m) Sujyra. And .see Logan v. Commercial Union, 6 R. & G. (Nov. Sco.) 309. (a;) This disposes of cases like Routledge v. Burrell, I II. 131. 255, and Oldman v. Bewichc, 3 H. BI. 577 note. CONDITIONS IN POLICIES. appeals. Where they are used, no claim for indemnity can be made until a proper certificate has been fur- nished {y). The purpose of the old condition as to the certificate Old form o! ot magistrate, clergyman, churchwardens, and other °°"'*"'°°- reputable inhabitants was that persons holding public positions in the neighbourhood, and who were therefore to be deemed responsible and substantial, might give the office their opinion on the character of the fire ''and loss, and thereby afford the office some protection from fraud («). Refusal of such certificate will not affect the in- Eefusai of surers. The assured cannot compel the grant of such *=«'^*fl<^'^te- certificate {a), he cannot substitute other persons for those stipulated {h\ and, having undertaken for the act of a stranger, cannot succeed unless that act is done (c) l^ut there may be cases in which the Courts will hold the condition substantially complied with, provided, of course, that the right persons certify. The certificate must state — (i) That the magistrate is not interested. 209 !-55> Contents of certilicate. (2) That he has attending the fire, &c. examined the circumstances 9S i ! (3) That he knows the character of the assured. (4) That he believes the fire to have happened with- out fraud or evil practice on the part of the assured. (5) That the claimant under the policy, if different Ht3h 56o («) P. 722, per I^awrenre, J. S T?" Ill' ''"■ n '■°'^- T- t.^"»^^«" V. Fremh, 6 T. R. 200. It; . 720, per Urose, J. BaciM v. U^uitaOle, 6 Lr. Can. Jur. 89. 2IO THE LAW.S OF INSURANCE. from the assured, has sustained damage in (iJ) respect of matters covered by the policy. (6) The amount of loss which is believed to have t.aken place (e). Person certi- I'l^e magistrate must not have suffered by the tire, Sisi'nterestld^ ^^^ ^^^^ ^^0' interest in the property damaged, nor be interested in the insurance company (/), nor be a creditor or relation of the assured (ff). A coroner has in Canada been held to be a magis- trate within the condition (h). Affidavit of loss. Preliminai'y proofs. In the older policies an affidavit used to be required. But now the policy merely binds the assured to make a statutory declaration if required, vouching the truth of his statements as to loss, value, &c. The aftidavit. must be in proper form (i) or as stipulated (/,). This must be humt fide demanded for any defence to be rested on its not being supplied (l). Such stipulations as to proof do not touch the sub- stance of the contract, but relate only to the form or mode of asf^ertaining and proving the liability of the insurer ; and the proofs may be submitted to the ofticers of the insurance company, who must give an opinion on their sufficiency in the ordinary scope of their employment (?»). Omission to make the formal preliminar}- proof of (f/) Kerr v. Brltinh Amerimn Amuvance Co., 32 U. V,. (Q. 15.) 569. (<-) Scott V. Pho'viv Co., Stuart (Lr. Uan.) 152, 354 (P. C). (/) M'lio.si--:e V. .I'rurincial Insurance Co., 34 U. C. (Q. 13.) 55, wliern the magistrate was landlord. (17) Daniels v. EnnlUihlc Co., 50 Conn. 551. \) Kerr v. British Ameri<:9 no tne msured are at variance with the representations ^o'^eiture made by him to secure the policy, is not a waiver of oS as^,' ted. the forfeiture (q). But a forfeiture incurred by running a factory after the hour allowed by the policy will be waived if not taken advantage of on the first occasion after knowledge by the company (r). Where a detailed account of loss sustained by the Proof may be (n) Pirn V. Bei,l, 6 M. & G. 1, 12 L. J. C. P. 299, 6 Scott N. R. 982. Liiderkdl v.Agmvum Imurunce Co., 60 Mass. (6 Cush.) 440. Pi-kst X. Citizens Mutual Fire, 8$ Mass. (3 Allen) 602. Lambkin v. Ontario Marmeand Fire, 12 U.C (Q. B.) 578. ihyte v. Western Insurawe Co 22 Ln Can Jur. 215 (P. C). Knkkerhocher, &c., Co. v. Pendleton, 5 Dav.8 (Sup. Ct. U. S.) 696, 709. Oavrhe v. London and Lancashire to., 4 Woods (U. S. Oirc. Ct.) 102. (0) Whijte V. Western Co., 22 Lr. Can. Jur. 215 (P. C ) (p) Whyte V. Western Co. (in Privy Council, reported 22 Lr. Can. Jur. 215. Abrahams v. Agricultural Mutual Fire Co., 40 U. C (Q B ) 175. 180. bee La7icashire Co. v. Chapman (P. C, reported in 7 Kevue legale (Lr. Can.) 47^ ' iq) Adrevens v.Jlutual Reserve Fund Association, 38 Fed. Rep. 806 (r) Cleaver v. Traders /«*•. Co., 40 Fed. Rep. 711. !?5^ 2». K. 390. if) Titus V. Glen Lulls Co., 8 1 N. Y. 412. 421 {{J) Walker v. Western, 18 IT. C. (Q. JJ.) 10. I 214 THK LAW.S OF INSURANCE. policy. The condition relating thereto is no mere threat (A). Vouchors. Vonchers, proofs, and explanations are required iis much by good faith as by the conditions, and a man who would not show his accounts would have as little chance of recovering under the (.'ommon Law as under an ordinary policy. Where the assured refused to produce invoices demanded by the insurers under a condition as to vouchers, &c., it was held that he must be nonsuited (i). Vouchers of course will include books of account if any are kept. And where the assured has insured a certain sum on stock-in-trade and has been trading for some months, the insurers are reasonably .justified within this condition in calling for such proof as the assured can furnish, that after deducting the goods saved and the goods sold he still had in stock such further amount of goods as would make his loss amount to the full sum insured (/.) or claimed under the policy. Proof of loss. A builder's certificate as to the value of the house What may bu , . required. at the tune of hre may reasonably be required under this condition, and must be supplied, if required, before action brought (/). Omission to verify, if so required, by books of account or other proper vouchers is fatal, unless the con- ditions are literally or substantially complied with (///) in those cases where the insured has such means of verification. If the books, &c., are burnt, the assured must supply , (h) T/imnun v. Timen and Beacon, 3 Ia: Can. Jur. 162. (/) (Jinq Mars v. Equitable Innnrance Co., 15 U. C. (Q. B.) 143, 246. (k) Ibid., 246, per Robin.son, C.J. (/) Faiccett v. Lirerpool, London, and Globe, 27 U. C. (Q. B.) 225. (m) Oreave.1 v. Niatjora DLitrict Mutual Fire Insurance Co., 2$ i'. C. (Q. B.) 127. Seott V, Niagara, District, 25 IJ. C. (Q. B.) 123. Bantinff V. Niagara District Mutual Fire Insurance Co., 25 I . C. (Q. B.) 431.' mere CONriTIONS IN rOLICIEH. 215 ;i particular account, if any means of so doing still ri'inain (n). A mere affidavit of value with accounts of goods sold to the assured, and having only charges of goods per invoice without particulars, will not suffice (0). A false statement made by the insured cannot be False state- excused by knowledge of the truth possessed by a AgeiVs know- local agent receiving the application, whether such i«°8e "^ facts, false statement be made in the application or the proofs of loss. In the latter case, the liability having accrued, the (|uestion of waiver would not arise (p). Ascertainment and proof or adjustment of the loss Ascortain- may be made a condition precedent to the right to sue ™g8.*' *°' for the loss, and it is a good defence to an action that CJondition precedent. the loss has not been ascertained and proved (q). The motle of proof, &c., need not be pleaded, being matter of evidence only. Proof satisfactory to the company means proof which "Satisfac- ought to be or in the opinion of a court of justice is **''^' satisfactory (/•). If the assured does not reasonably and actually be- Vaiuatiou. lieve in the valuation put on his goods in his proof he will forfeit all claim under the condition as to fraud (s). And if a jury find a verdict for an amount !?2» 3teMi (h) Carters v. *V«?He, 19 U. C. (C. P.) 143. (o) Mulcty V. Gore Dhirict Mutual Fire Iiinurauce Co., 25 U. C. (Q. 15.) 424. (ij) Hauseit v. American Insurance Co., 57 Iowa 741. (7) Elliot V. Itoyal Exchange, \,. \{. 2 Ex. 237, 36 \„ J. Ex. 129, 16 I,. T. N. S. 399, 15 W. li. 907. See also M'Maimx v. Etna Co., 6 Allen (New Hiuns.) 314. .fohnxtoii v. Western, 4 I'. C. (App.) 2S1. Lundilcin V. Wcatern, 13 L'. C. (y. 15.) 237. Waydell v. J'rorincial, 21 v. (J. (Q. M.) 612, London and Lancanhire v. Honey, 2 Victoriti L. R. 7. (/•) Loudon Guarantee Co. v. Fearnley, 5 App. C'as. 911, 43 L. 1'. N. S. 390, 28 W. K. 893. Manby v. Grenham Life, 29 Beav. 439, 31 L. J. Ch. 94, 4 L. T. N. 8. 347, 9 W. 1{. 547, 7 Jur. N. S. 383. (s) Xeicton V. Gore JJistrict Mutnal Eire Jnnurance Co., vi V. V. (Q. 15.) 92. ^ fi 2l6 THE LAWS OF INSUIIANCE. i '.r >i Fraud. Excess! vo valuation. very much less than the claim, the judgment will either be entered for the insurers (/) on the ground that the assured has been guilty of fraud in his valuation, and so avoided tlie policy within the condition, or a new trial will be ordered (ti). It does not seem clear how much less the finding must be tlian the valuation for the policy to be avoided on the ground of fraiul, aiul no decision seems to have been given on that point in England except Levi/ v. JJaillie(seepoiit, p. 2 1 8),where the claim was ;^io85 and the verdict for ;^5oo (x). In Nova Scotia, in a case where the verdict was for $3000 but many witnesses valued the property at $500, the verdict was set aside (y). But in another, where $840 was chiimed and $600 awarded, the verdict was up- held because the ett'ect of the finding of the jury was to negative fraud (;:). So also in Ontario, where it was said that it not appearing that an over-valuation wai made iitald Jide, but by error of judgment, the Court will not set aside a verdict, tlie question of fraud being for the jury {a). Ov(M-vaination Over-valuatiou in an application, if not fraudulent, lau u ent. ^^-jj ^^^^ ^^^^^ ^ policy Q)). Whether there was a fraudulent intention in making an excessive claim is a question for the jury (c). Over value. Condition as to fraud in claim, or criminal procurement of lire. The condition as to fraud in the claim runs as follows : — " If the claim be in any respect fraudulent, or if any statement or statutory declaration made in (/) li'HU'h V. N!.iirt(Hce Co., i Russ. !kVh. (NovaNcotia) 240. ('0 liivc V. Pror'niciol In.^'ir<(iire ' W., 7 U. (A (C. P.) 54S. Moore v. Protection In.iitndicc Co.. 29 iMaiiie 97. (/>) Cunuihi Loioleil Creillt Co. v. Caniola A^»>-b,tratw,i between Can- aad the JHun F!rc Im. ' ".. 13 Junes !,. I!. 1S6. (./■) Tiiis is dealt with more fully in tlin (•haptei- on •• l{,lsk " (//) iirittoa V. lioijal Jimmnice, 4 F. & F. 905, 15 L T N S 72 New {runs. 394. Jiey v. Homes, i C & K. 65. MoL. y IrS' SiSM 2ao t r 2I8 TUE LAWH OF INSURANCE. As to fraud iu the claim. Excessive claim uut conclusive of fi-aud. which he knows to be false and unjust he can recover nothing. The false statement must liave reference to the claim and not to any immaterial or collateral object (It), since the condition is to be construed with reference to its interest nnd object, viz., the account of the loss and value of the property insured (i). Fraud in the claim is quite distinct from fraud iu the proposals and negotiations for the policy (',). While excessive valuation may be material before tlio taking of a risk (/), and make the policy void ah initio, excess in the claim only operates by destroy- ing the remedy and putting the claimant out of court (//()• The mere fact of excess is not conclusive of fraud (//). Valuation is to a large degree matter of opinion, but over-valuation may be so great as to be incompatililo with good faith, or may be dishonestly made (o). Conse- quently the proper direction for the jury in such a case, it seems, would be to tind for the plaintiti', unless on the evidence they thought the claim and declaration were fraudulently untrue. In Levi/ v. Baillic (p) a new trial was ordered instead of entry of judgment for the defendants, which was asked for. This supports tlie view that the jury must expressly find fraud, and that (h) f'lowlcy V. AiiviiiiltHrul Mutual Fire Iiifiui-itiux Co., 21 l. C (C. 1>.) 567. (/) Jtd.s.i V. CommerCK/I Idiod ^Issunnicf Co., 26 U. C (Q. ]].) 552. (/.) Sec Brittoii V. Ji'iyal fusurdiice Co., 4 F. & F, 905 iiutes, 15 I.. T. N. y. 72. (/) Inindcx V. J'tii,/,r, \.. R. 9 (,). 15. 531, 43 1,. J. (,). 1!. 227, 30 L. T. N. S. 547, 21 W. 1!. SS4. (m) Meaijlur v. Lomloii diii/ Lduvanhtre, 7 Victoria L, Iv. 390. {11) /bid. Leri/ v. Jlaillie, 7 15iiig. 349. (o) Chapman v. l\)lc, 22 L. T. N. S. 306. liiuch \. Niaf/arii Bislrivt Mntucl Fire Innuravce Co., 21 U. C. (0. P.) 464. Jemeij City Co. v. Nichols, 35 New Jersej En. 291. (/)) 7 Ming. 349; see M'MiUauy. Core Bixtricf Mutual Fii'e Jimtrimce Co.. 21 V, V. (('. P.) 123, and Goiih/ v. British Aiiieriat Assurance Co., 27 L'. C ((J. 15.) 473. reviewing ail casts. CONDITIONS IN POLICI!:,';. 219 it cannot be inferred from the discrepancy between the amount claimed and their verdict (q). But jurors are apt to be exceedingly charitable in their construction of a plaintiff's motives whenever the de- fendants are an insurance company (r). Said a learned judge in Canada," He may be sanguine enough to expect that another jury may be found to deal with his case in as large a spirit of charity as to his estimate of loss and the good faith of his affidavits as the jury which has recently upheld his honesty of purpose in swearing that his actual loss was twelve times larger than they themselves found it to be " (.s). Mere mistakes in the statement, &c.,will not forfeit Mere mis- tlie claim {t). To ask that they should do so would nouSdS" be a breach of good faith on the part of the insurers. *'^'^''"- Mere overclaim will not prove nor even raise a pre- sumption of fraud. Error or some degree of exaggera- tion or o'-^r-estimate does not amount to fraud, and in such cases the insured will be entitled to recover according to the real value and amount of loss actually sustained {iv). iiut false swearing intended to deceive, not insurers, but other persons, may invalidate a claim ('J. If a claimant recklessly values his property, not Eeckiess knowing nor taking the trouble to ascertain the '*"'*'''°^'^'- accuracy of his valuation, he can hardly complain if h's claim be treated as fraudulent (y) within the principle laid down in Meese River Co. v. Smith, ('/) See JiiidingH in ITarvis v. London, ,ind Lnncashi're, 10 Lr. Can Jur. 26iS. 274. (/•) /i'ldvh V. Aidi/ora District Mntml Fire Innumnce Co., 21 1' (' (U P.) 464, 472. (.v) McMillan v. Gore. District Co., 21 U. C. (C. P.) 123. (/) .lon,.s V. MevJuinirn' Fire Ivxunnicr Co.. 13 Am. Rep. 405. See Mcvfi/nrx London ond Loncmhirr Fire, 7 Victoria 1.. K. jqo, ^oe Miisun V. Harre;,, 8 Ex. 819, 22 L. J. Ex. 336. 21 I.. 'I'. is8 '((.) Chtipnian v. Pole, 22 L. T. N. S. 306. '•) <'l(ijiin\. Commomce.dlth Insurance Co.. no U. K. '58- , , ^ -,, , ,, - ■ :■ . . (3 Davis) 8r. (//) ^'-^ Mmgher v. J.unduu and Lnnc(i.ihirc Firt, 7 Victoria i, \l 390. 394. ' Saw M, ?J 220 TIIK LAW8 OF IN.SUKANCE. Defonoo of arNoii. L. ]{. 4 H. L. 79, 39 L. J. Ch. 855, especially as reckless iinder-stateinent is more than iii\likely. Arson is discouraged as a dcfeuce to aii action on a policy, since criminal matters are thereby mixed up with civil proc^eedings (:), and the crime niu,st> if imputed, ho so fully proved as to justify the jury in llnding the ])laintiir guilty on indictment («). And the Court will bo very unwilling to grant a new trial where such a defence has been raised (i>). Proof of his loss is, of course, upon die assured. He must show, if required, that the goods were on the premises at the date of the fire, and were lost, damaged, or stolen (c). ConiHtion tiint A further condition in lire policies is as follows : — onU'l-promisoH. " ^>» the happening of any loss or damage by tire to any projwrty in respect of which a claim is or may be made under this policy, the company, without being ileemed a wrong-doer, may, by its authorized otlicer and servants, enter into the building or place in which such loss or damage has happened, and for a reason- able time remain in possession thereof, and of any property hereby insured which is contained therein, for all veasonabie purposes relating thereto or in con- nection with the insurance hereby effected thereon, and this policy shall be evidence of leave and licence for that ;Hirpose." Insurers not to romain ou promises unreHsnuable tune. This condition is inserted in order to enable the insurers to see for themselves the nature of the damage and the causes thereof, and test the accuracy of the proposals and bona jiilcH of the insured. ii (-.) Br'ittoH r. Hovdl, 4 F. & F. 905, 908, 15 1.. T. N. S. 72. duid- stiiiir V. Jiayiil, I F. & F. 276. ((() ThiivtiU V. Bidiimoiil, i Bing. 339, S ^looie < ". P. 612. 2 I.. J. (". P. 4. Tlu' Anioricau (M)urts hold less strict proof necessary. (/() (u)itlil \. Ih-itith JiiK ricii Atxiirdinr <'<>., 2J U. ('. (Q. !'..) 47J. But sw M'Mlllaii V. Oon J.>(' c.xt.., , V, oim luie, 14 o. b. C (and series) 775. !S^ ^^^^1 'MMKI - "^ ^S^ '1 Vfi 222 14 Geo. Ill, c 78, not extend to Scotland or Ireland. Condition gives larger powers than statute. Damage may be repaired. THE LAWS OF LXSUKANCE. or chattels affixed to the freehold is in the main only declaratory of the law as enacted by s. 83 of 14 Geo. III. c .78. Semhle that the Act does not apply to Scotland (/) nor Ireland (^), nor to personalty in England, nor beyond the bills of mortality in Eng- land (A). As to those countries and property of that kind the condition enlarges the powers of the insurers, and the time for reinstatement is also usually enlarged (i) by the terms of the condition. Moreover, the condition enables the insurers to reinstate without reason given and where there is no suspicion {h), so that they can reinstate in cases of dispute as to the amount of damage, or where they tliink reinstatement will be cheapest for them. They are under statutory obligation to reinstate in sus- picious cases. Tl;e right to reinstate under the condition arises whether the destruction is total or partial (/). Whether If the company elect to reinstate, they must do so, abide by "^"^ ^nd cannot fall back on payment (m), unless by failure reinstate*" ^^ ^^^ assured's title to the locus in quo the insurers cannot lawfully enter to reinstate (w). The converse is equally true. The power to combine \\ith other insurers in reinstating is important in cases where there are several interests in the property insured, as in case of mortgages (0). (/) Bissettv. Royal Exchange, t C. S. C, (ist, series) 174. West- minster Fire v. Olasgow Frovident, 13 App. Cas, 699, J.J. Watson at p. 716 ; 59 L. T. 641. (ff) Being prior to the Union. (Ji) Ex parte Gorelei/, 4 De G. J. & S. 477, 34 L. J. Bkcv. i, 11 f;. T. N. S. 319, 10 Jur. N. S. 1085, 13 W. II. 60. (?) Sutherland v. Sun Fire, supra. (k) Biftsett V. Royal Exchange, i C. S. C. (ist series) 174. (I) Sutherland v. Sun Fire, 14 C. 8. C. (and series) 775. (???) Ibid. 779. Brown v. JioyaJ, i E. & E. 853, 28 L. J. Q. B. 275, 33 L. T. 134, 7 W. I{. 479, 5 .Jur. N. S. 1255. {n) Anderson v. Commercial Union, 55 L. 3, *^. B. 146. 34 W. It. 189, 2 Times L. II. 191. (0) /Scottish Amicable Association v. Northern Assnra)iCb t'u., 21 So. T.. R, 189, II C, S. C. (4th. series) 287= ' of that of the ) usually 223 Whether amount uecestiary to reinst8.te is measure of loss. Insurance of land. CONDITIONS IN POLICIES. Tlie amount necessary to reinstate the premises is not necessarily the measure and limit of the loss. " In a certain sense the ground is not insured ; but if the buildings are destroyed and the ground is no longer of the value it was before the fire, that is due to the loss of the buildings, that is the value which the fire has taken away," and might be recovered under an insur- ance of the buildings (p). In the Scotch case in which this was laid down by Lord Selborne, on appeal to tlie House of Lords, the pursuers, having a heritable security by bond on certain premises, insured them against fire in the defenders' office for ;^90o. Prior securities had been given by the owner upon the same premises to other creditors wlio had insured in other offices. The premises having been in part des- troyed by fire, the prior incumbrancers were paid by tlieir insurers an amount sufficient to reinstate the premises, and to pay the rent during the period of re- instatement, but the premises were not in fact rein- stated. Before the fire the value of the premises was sufficient to cover the prior bonds and that of the pursuers, but after the fire the value of the premises was so reduced as to be inadequate to meet the balance due to the prior creditors, and the pursuers' bond was left entirely uncovered. The House of Lords decided that the pursuers were entitled, notwithstanding the amount paid to the other creditors, to recover their loss. The last condition in a fire policy is to the follow- condition as ing eftect : — In all cases where the policv is void or ^ fo^l^wture of 1 J J. 1 • n r ,/ " » "■'^ ^'- premiums. lias ceased to be m force under any of the foregoing ■conditions, all moneys paid to the insurers in respect thereof will be forfeited. Being a condition as to for- feiture, it may be waived. And it does not seem to apply to cases where the policy does not attach at all. Prior incum- brancers paid suflBcient to reinstate, and recoverj' of loss by subsequent in- cumbrancers. (2>) Per Lord Selborne, Westmhisfer Fu-e v. GUmjow Provident, i App. Cas, 699, 59 L. T. 641, 4 TJmos L. II, 779. srk ir &c 224 Waiver of the forfeiture. THE LAWS OF INSURANCE. It may be asserted broadly that if, in any netrotla- tions or transactions with the insured after knowledoe of the forfeiture, the insurer recognizes the continued validity of the policy, or does acts based thereon, or requires the assured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is waived (q). The conditions of life insurance differ widely from Kinds of conditions. V^ Couditious of life insurance different from those in other insurance. There can be no conditions insurance. ^' ^s to proof of damage in a life policy, the contract, apart from questions of bonus, being to pay a liquidated sum on a given event. Proof of age and death is all that is needed, and often the former is admitted at the outset. The other conditions of life insurance may be classified as follows : — (a) Limiting the region wherein the insurance operates. (b) Limiting the occupations in the exercise of which the assured is protected. (c) Specifying certain modes of death, on the happening of which the sum insured will not be payable, e.g., suicide, hands of justice, or duel, or act violating the law. (d) Eequiring timely payment of premiums, but providing a means of reviving lapsed policies where the risk has not been materially changed in the interval. (e) Making the undertaking of the risk conditional on the truth of all statements or answers made on the application to insure, whether the insurance be on the ((2) Titus V. Glen Falln Co., 8i N, Y. 410, 419. See Bobertmn v. Metropolitan Life Ivmrance Co., 88 N. Y, 541, and Insurance Co, v. Norton, 6 Otto (96 U. S.) 234, which goes into English cases. Ward V. Day, 4 Best & Sm. 337. ws^^l CONDITIOi>,S IN POLICIES. 225 applicant's own or another's life, and whether the statements be made by the assured or his agents. It will be seen that only under the last class of Conditions conditions can tlie policy be void ah initio, a, b, c, S^t'^void are conditions which amount to exceptions from the °^ voidable, risk taken. It seems, however, that in the case as well of a condition making the policy void as of one making it voidable, the non-fulfilment of the condition Waiver of may be waived by the insurers, if they do any act '"'®*°^- amounting to an affirmance of the contract after know- ledge of the breach of the condition (r). Leave and licence by the insurer to break the con- dition, will also save the rights of the insured (s). If the assured fails to disclose the names of medical Non- disclosure men employed by him, and answers as if he had none, aftendS and omits to state that he was afflicted with disease, Of disease, having reasonable grounds for believing chat he was so afflicted, his policy will be void. So also if he misstates his age. And if it is not Age. admitted in the policy, parol proof thereof cannot be Proof of age. given until the non-existence of baptismal or birth register has been proved {t). The condition as to misrepresentation or omission As to to communicate material facts refers only to the time MKsreprTsenta- of negotiating for and effecting the policy, and not to *^°"^- any subsequent time (w). This is more especially applicable to life policies, the premiums being settled with reference to the assured's health and prospect of life at the time when the policy is granted. (r) Armstrong v. Turquand, 9 Jr. C. L. R. 32. Winn v, Harvey, 5 I^e G. M. & G. 26s, 23 L. J. Ch. 511, 18 Jur. 394, 23 L. T. 120 2 W. R. 370. Su^le V. Cnnn, 9 Jr. C. L. R. i. (s) Reis V. Scottish Equitable, 2 H. & N. 19, 26 L.J. Ex. 270. 20 L T 113, 5 W. R. 592, 3 Jur. N. S. 417. /y. y • (t) Hartigan v. International Life, 8 Lr. Can. Jur. 203. (m) Pirn V. Btiii, 6 M. & G. i, 12 L. J. C. P. 299, 6 Scott N. R. 982. P ill !?2> s i \ t.. 55— 1 M. m pi ^ :% ' if^ i> ,f li 326 Geographical limits. Payment of premium prevented by war. return from abroad after expiry of licence prevented by illness. Delay to act on licence. i ^ THE LAWS OF INSURANCE. Tf a life policy contain a stipulation that the assured is not to go beyond certain limits, if the insured <,'oes even for an instant outside those limits, though with- out the least injury to his healtli, the condition attaches and the poiicy bts.^omes void (^^a-), and is not merely sus- pended while the assured is without tlie limits unless some provision to that effect is -ontained in tlie policy. Even where sucJi a condition is inserted in a policy, provisions are usual ullovviug the assured at a price to obtain a licence to go outside the specihed limits. And there is a <,eneral tendency on the jiart of insurers to remove local restrictions and grant " wliole- world " policies so as to avoid the obvious inconveiiiencns of the older system. Where the insured was prevented from perfcymin^ the condition to pay the annual premium by a state of war, a majority of the Supreme Court of the United States held that the policy must be regarded as extin- guished by the non-payment of the premiums, though caused by the existence of war ; but that, such failure being caused without the fault of the insured, he was entitled to recover from the insurers the surrender value of the policy with interest from the close of tlie war {y). And it has been held also in America that a man licensed for a time to go outside the terri- torial limit prescribed in his policy will not lose the benefit thereof if hindered from returning by illness ultimately fatal, but only resulting in his death after expiry of the licence (z). And in England, where a licence was given to the insured to reside abroad for one year, and he delayed to go abroad for three years, and then left this country, and died (x) Beacon Life ami Fire f'o. v. Gibb, i Moore P. C N. S. 73, 100, 7 ].. T. N. S. 74, 9 Jur. N. S. 185, 11 W. R. 194. («/) New York Life v, Statham, 3 Otto (93 U. S.) 24. (;:) Baldicin v. Neic YarJc Life, 16 N. Y. Sup. Ct. (3 Buowurtli) 530. CONDITIONS IN I'OLICIES. within a year, he was held to have acted within the hcence (a). 227 In Scotland, policies by persons on lives other than I'oiicy s,n- their own are not avoided by suicide of the life in- 'S.m,i Imt surod Q)), and in this country it seems to be usual in "^p'.de'i by policies on the lives of others to oniit the condition ""°''''' against suicide. No cases seem to have arisen in England under the Military or condition as to military service, since English policies '"''"'' ^""^''®- usually stipulate only that active service shall be a ground of (nihancement of premium. The extra pn mium is usually paid and no questions arise. In America in the al)sence of such a stipulation it has been decided that a clerk in the adjutant-general's depart- ment not subject to military law is not in mihtary service (c), and that a man will be none the less in such service if he is taken as a conscript or goes merely to avoid compulsion {d). He who takes out a policy on the life of another per- Peraoi. son in which he has interest will be bound by wilful ''Meeting policy misrepresentation or suppression of the truth by such Hfe''bo°und'^by person to induce the insurers to grant the policy, and 'onuS.^"' more especially if such representations are incorporated in the policy. For thereby the bargain is only con- ditional, and it is equally a condition in the policy, be it made by whomsoever it may (c). Independently of the condition, the person on whose life the ] olicy is to be made, if referred to for information, becomes thereby agent of the assured, and the latter will be bound by his statements (/). It makes no difference ±. ■'i Sao 1>HI 2SO (a) hc.fman v. Anchor Co., 4 C. 15. N. S. 476, 27 L. J. G P 27; 4 jur, N. H. 712, 6 W. R. 688, 31 L. T. 202. 7 x^. 0. »-. r. 275, (0) Beir.s Principles 241. (c) Nm Vorh Life v. Hendren, 24 Gratt. (Va.) 540. [d) JJUlard v. Manhattan Life, 9 Am. Rep. 167 &R afr'"""'^ ""■ ^''°'^'' ' ^- * ^- 360. 363, per Bayley, J., 5 Dowl. (/) Everett v. Uesborough, 5 Bing. 503. t -H 328 ('oucoaluiuiit of rofusftl by formur compniiy to acc(tj)t. iufturance. ■ TllK LAWS OF INSUUANCE. tluit the assured luid simply told the; insurer's agent to make inquiries of the person on whose life the ]iolicy was to be eiVected. But if the assured has made most of the representa- tions, and only refers to the life on certain specilii; points, the knowledge of tlie life outside that particular matter is not knowledge of the assured (-/). An applicant for insurance who conceals from the agent to whom he applies that he has already applied to and been refused by an agent of the same company, conceals a material fact. Knowledge of the applicant's previous dealings with other insurers is at least us material in tire as in life insurance. Indeed, the only thing most insurers against tire want to know is the character of the insured, and the questions asked by them are mainly directed to his dealings with other insurance offices (h), (g) Ihichuwn v. Fcrnie, 3 M. &W. 505, 7 L. J. N. 8. Ex. 163. 2 .Tur. 144. (h) Goodwin v. Lancashire Fire, 16 Fa-. Can. Jur. 298, 18 do. i. London Amirnnce v. Mwml, 1 1 Cb. D. 363, 48 L. J. Cli. 331, 27 W. li. 444. Baintrce'a claim, 18 W. E. 396. m ( 229 ) CHArXEK IX. AUHITKATION. An uiKiualilied agreeuient to refer to arbitration and Eariior viow precluding tlic contracting parties from suing in the tl^refTr^"'""** Queen's Courts was formerly held to be invalid, for the Juiisdiction of ,, . 11 , ,1 ,...,.. ' Courts not to (Jourts would not allow their jurisdiction thus to be bo ousted, ousted. And where prior to 3 & 4 Will. IV. c. 42, s. 39, a policy of insurance contained a clause that in case of any loss or dispute it should be referred to arbitration, it was held that, if there had been a refer- ence depending or made and determined, it might have been a bar, but the agreement of the parties could not oust the Court ; and as no reference had been nor was any depending, the action was well brought, and the plaintifl' must have judgment (a). Jicgarding this rule, however, that the jurisdiction of Ruioasto the Courts should not be ousted, Coleridge, J., said : "I °"«*^''- certainly am not disposed to extend the operation of a rule which appears to me to have been founded on very narrow grounds, directly contrary to the spirit of later times, which leaves parties at full liberty to refer their disj)utes at pleasure to public or private tribunals " (h). In Scoff, v. Avery it was decided that where parties srott v. .\vn-y. liave entered into a contract of indemnity, they may, .Qualified, if they choose, agree -that in the event of any loss occurring such loss shall be ascertained by an arbitrator they may select, and they may agree to pay such loss il («) Kill V. lluUiHtcr, I Wiln. 129. T/tompsoii v. ('karnocl; 8 T. R. (h) Scott V. Avery, 5 II. L. C. 811, 843, 25 L. .1. Ex. 30S, 2 .Tur. N. S. i>l5, 4 W. R. 746. h 1 230 Statomeut of law, per Brott, M.i;. THE LAWS OF JNSUKANCE. when it has been" ascertained, and not otherwise (c). This case has heen the subject of much comment and many explanations. In EdivaviU v. Aherayron Corn- pan//, Jirett, M.li., said (d) : " The true limitation of Scutt V. Avery seems to me to be that if parties to a contract agree to a stipulation in it, which imposes as a condition j^)recedent to the maintenance of a suit or an action for breach of it the settling by arbitration of the amount of damage or the time of paying it, or any matters of that kind, which do not go to the root of the action, i.e., which do not prevent any action at all from being maintained, such stipulation prevents any action being maintained nntil the particular facts have been settled by arbitration ; but a stipulation in a contract which in terms would submit every dispute arising on the contract to arbitration, and so preclude th-c suft'ering or complaining party from maintaining any suit or action at all in respect of any breacli of the contract, does not prevent an action from being maintained ; it gives at most a right of action for not submitting to arbitration, and for damages probably nominal. And this rule is founded on public policy. It in no way prevents parties from referring to arbitra- tion disputes which have arisen ; but it does prevent them from establishing, as it were, before they dispute, a private tribunal which may from ignorance do what the invented tribunal here did, namely, act and persist in acting in contravention of the most elementary principles of the administration of justice." Statement of law, per Biamwoll, B. The efl'ect of Scott v. Avery is also well stated in IJ/liot V. lioyal Exchange (c), by Bramwell, B. : " If two persons, whether in the same or in a diilerent deed (f) 6'cott V. J rery, 5 IT. L. C. 81 1, 25 L. .T. Ex. 308, 2 .Tur. N. S. 815, 4 W. E. 746. Ihwni V, Orerhufj/, 11 Kx. 715. i'aledonlan Insurant Co. ami Ollmour {1S93). ^- *'• ^5- 3° ^c"- '- R- i72- Hdnilyn. cD (^0. V. TaiicLcr D'stiUtry. (1S94). A. C 201. {d) I Q. 15. D. 563. 596, 34 I,. T. N. S. 457. (e) L. K. 2 Ex. 237, 245. 36 I,..). Ex, 129, i6 I.. T. N. S. 399 I J W. 11. 907, and see Dmvtion v. J'\'t,~ijcraln Law Procedure Act, 1S54, to stay the action until there had been an arbitration, in which case a judge had power to prevent the case going to a jury if (;■) See Tredtren v. Hulmuu, i H. & V. 72, 79, 7 I. T. ^. S. 127, 10 W. ]!. 652, 31 li. J. Ex. 398, 8 Jiir. N. S. 1080. Wr'Kjht v. Ward, 20 W. 1;. 21, 24 L. T. 1^. S. 439. ILii'rci) v. JJeckwIth, 2 ll. & M. 429, 10 I-. T. N. S. 632. Babh'uje \. Coidbiirii, 9 Q. I'>. D. 235 i;2 >'■ •'■ (l i$. 50. WiUexford v. W'ldmn, 8 Cb. App. 473, 42 L. J. Cli. 447, 28 L. ■!'. N. S. 428, 21 VV. K. 350. (q) I'er Jessul, AI.l!., in Jhnrxoii v. Fitzgendd, i Kx. D. 257 at 260, 45 L. J. Ex. 894, 24 VV. li. 773. Edwarda v. Abertii/roa Mutual Ship. Cv., I (,). 15. I). 563, 34 L. T. N. S. 457. Boper v. Lcndon, 28 L. J. Q. I J. 250, I E. & E. 825, 7 \V. li. 441, 5 .lur. N. S, 491. Scott v. Lirci-pooi C'orponitioii, 28 L. J. C!1j. 230. 3 De (i. & J. 334, 32 L. T. 265, 7 W, It. 153- S •^i"'. N. S. 105. U'rii/Itt V. Ward, 24 L. T. N. S. 439. 20 \V. U. 21. (/i.) <'odiii.i V. Locla; 4 App. Cas. 674, 48 L. .). P. C. 68, 41 I-. T. N. S. 292, 28 \V. 1{. 189. •*•■«■ 2SW II 232 Waivor of arbitration by iusurer aud insured. Award not a condition jirecedont to action. Ascnrtaiumeut of amount condition I precedent to action. THE LAWS OF INSURANCE. the arbitration could be fairly enforced (i). This ]>rovision has since been repealed, and s. 4 of the Arbitration Act, 1889, substituted for it (/:). It is not a condition precedent to the right of the Court to refer to arbitration that all the parties must before action have been willing to go to arbitration (/). But in America it has been held that where it was stipulated that in case of disagreement the amount should be fixed by arbitration, and neither ])arty demanded arbitration, the provision would be deemed waived by both (v/t). A clause stipulating that all matters in difference which should arise touching the agreement should be submitted to arbitration, and i)rohibiting anyaction being brought in respect of the matters actually submitted to arbitration, is a collateral and inde])endent agreement ; and an award thereunder is not a condition precedent to such action, except as regards such sums as under the agreement are not payable until the amount thereof has been ascertained by such award (/(). In Braumteiii v. Accidental, Death Compaiiy (0) the covenant was to pay such sum as sliould appear just and reasonable, and in proportion to tlie injury re- ceived, such sum to be ascertained in case of ditlerence in manner provided by the stipulations and conditions indorsed on the policy. The Court held perfoi-mance of the stipulation to be a condition precedent to the right to sue. ((■) Per Jossel, M.l»., Dtiwtum v. Fi/r.(/trid(I, i Ex, 1). 260, 45 L. J. Ex. 894, 24 W. 1!. 773. See also per Tage Wood, V.C.. in ('ooh: v. Cool-e, 4 Eq. 77, 36 J.. .1. Cli. 480, 16 I>. T. N. IS, 313, 15 W. 1!. 981. (/.•) 52 & S3 A'ict. c. 49, n'st p. 256. (/) WlUi'xford V. Watson, 8 Cli. App." 473, 42 I.. .1. Cli. 447, 28 L. T. ^' S. 4:28, 21 W. it. 350. (m) Kti/niwcller v. J'/ioin.r. lOc, 67 Fed. Hep. 483. (>i) ('(illliis v. I.iicke, 4 App. Cas. 674. 48 L. .1. J'.'C. 68, 41 L 292, 28 W. 1{. 189. (0) I n. &S. 782, 31 L. J. U. J!. 17 '1S61), 5 I.. T. N 8 Jur. N. S. 506. . T. N. S. ARBITRATION. 233 Also where the condition was that the insured should Arbitration a not be entitled to sue until the amount of the loss precedent luid been determined by arbitration, the ascertainment of the amount in that way was held to be a condition precedent to the plaintiffs right to recover (p). And a condition requiring liability, and not merely ciondition tlu) amount thereof, to be referred to arbitration as a [[Xiity k?^bo condition precedent to a right of action against the '■"fe'^d "s .,.,.. * •= good, nisurers is valid (q). Where an adjustment by arbitration was made a coudition precedent, and tlie insurers alleged that tlie policy was void by reason of concealment, it was held in Victoria that the assured could not su" till after such adjustment (?•). And in a case in Lower Canada where a reference was made to valuers without waiver of the conditions of the policy, it was held that tlie insurer had not lost his right to use the conditions of tlie policy as to forfeiture if sucli were proved (s). Some discussion arose on the question whether Right to sue if fraud were changed this would entitle the plaintiff to ^^^^'^ 1™^** o A^ in question. a jury. Pollock, B., in Miidfie v. Puiilway Passenf/ers, &c., says, " Where fraud is imputed to the claimant, whether he be the assured or his personal represen- tative, it would be difficult to say that the plain- tiff ought not to have tJie opportunity of clearing himself from so grave a personal imputation in open court " (t). And this view was taken in WaJlis v. Hirsch (u), * s-as So {/)) Vineij V. B'Kjiiohl, 20 (l W D. 171, 58 L. T. 26, 57 L. .1. Q. B. 82, 35 W. K. 479, 4 Times \i. \\. 128. ((/) Tra'utor v. PIkciiIx Co., 65 i^. T. 825. li'noit v. The Mercuntlle, d-c, Co., 66 L. T. 811. (/') London and /junainhirc v. Hone]), 2 Vii'toria L. ii. 7. (s) La Jioojue v. lioyal, 23 Lr. ('an. .Jur. 217. (/) Miiiifie V. Jiuilwoy Pus^ieniiers^ Ari/iurnuce (.'0., 44 L. T. N. S. at 554. («) I C. B. N. S. 316. 234 Arbitration where fraud charged. m Scotch rule as to uaming arbiters. Issue amountiuf,' to fraud. If' THK LAW.S OF INSURANCE. approved in Hirsch v. Bt Thurn (x). Jessel, M.E., in Russell V. Bussell (■>/), expressed himself by no means satisfied that the mere desire of the person charging the fraud was a sufficient reason for the Court refusing to send the ease to arbitration, although if the person charging the fraud did not desire a reference the Court ought to investigate the circumstances, and might, on a primd facie case of fraud being shown, in the exercise of its discretion refuse the order. Where, however, the person charged with the fraud desires an investiga- tion before a public tribunal, the Court ought, said his lordship, as a rule, to exercise its discretion, and to refuse to refer the matter in dispute to arbi- tration. It has, however, now been decided that a condition requiring the question, whether there be any liability on tlie part of the insurers, to be referred to arbitration as a condition precedent, is binding even if fraud be alleged by the defendant against the plaintiff' (z) . In Scotland i*- has been held that after a claim has been submitted to arbitration and awarded on in favour of the insured, the insurers could still raise the ques- tion of fraud (a). And where in a fire policy the condition to ascertain the damage by arbitration was made a condition pre- cedent to the bringing of any action upon the policy, it was held to have tlie eftect of excepting the contract from the rule of Scotch law that a reference to arbiters, not named, cannot be enforced (5). An agreement making settlement of the loss in a (.<■) 4 C. B, N. S. 569. See also Willesford v, W'ttson, 8 Ch. App. 473, 42 L. J. Ch. 447, 28 L. T. N. S. 428, 21 W. R. 350. (y) 14 Ch. D. 471 (1 880), at p. 477, 49 [;. J. Ch. 268. i^s) Tniiiior v. Pho^nhr, supra. Scott v. The Mercantile, tOc, . S. 558. See Fox v. liadway Fasaeiitjcru' Co., mipra. (i) Mexborough v. Bower., 7 15eav, 127, per Lord Langdale. sSBr *«a^ 5^ 236 THE LAWS OF INSUIJANCE. Arbitration Act, 1889 Sec, 4. Sec. 27. adopting the suggestion of Lord ^vldoii (h), that tlie agreement should contain tlie mention of a fixed sum as agreed and liquidated damages for any attempt by either party to disregard the arbitration, clause. Agreements to refer may, however, now be enforced by an application to stay proceedings under s. a of ihe Arbitration Act, 1889. This Act provides that "if any party to a sub- mission, or any person claiming through or under him, commences any legal proceedings in any (,'ourt against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance witli the submission, and that the applicant was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings " (/). Sec. 27 of the statute delines a "submission" to be "a written agreement to refer present or future differences lo arbitration." Insurance in friendly societies. A policy of insurance containing a clause that differences arising under it should be referred to arbitration amounts to a submission to arbitration under this statute although the policy be not signed by the plaintiff (m). Where an insurance is made with a society, under (/.;) >^t>'eet v. liiyby, 6 Vew. 815. ll) 52 & S3 Vict. c. 49. [m) JJaka- v. Yorhshire, dc, Co., t Q. ]). (1892) 144, 66 J;. T. 161. ARBITRATION. 237 the Friendly Societies Act, 1 896 (n), disputes between a Diember or a person claiming through (0) a member (his heirs, executors, administrators, or nominees where nomination is allowed), or claiming under the rules of a registered friendly society, and the society or an officer thereof, nuist be decided in the manner airected by the rules of the society, and the decision so made is binding and conclusive on all parties without appeal, and cannot be removed into any Court of Law or restrained by injunction. Enforcement thereof may be had through the county court. The Act contains f urtlier provisions as follows : — 1. Unless the rules of the particular society forbid it, the parlies to a dispute in a society may by consent refer the matter in dispute to the Chief liegistrar in England or the Assistant-liegistrar of Friendly Societies in Ireland or Scotland. 2. Where the rules provide for a reference to justices, a court of summary jurisdiction is to decide unless the parties choose to consent to go to the county court, in which case that Court is empowered to hear and determine the question in dispute. 3. Where the rules of a society contain no direction as to disputes, and no decision on a dispute is given within forty days after application by the society for a reference under its rules, the mouiber or person aggrieved may apply either to the county court or a court of summary jurisdiction, which may hear and determine the matter in dispute. 4. The Court, chief or other registrar, may at the Disputes as to request of either party state a case for the opinion of '''*'"''• the Supreme Court of Judicature on any question of I 1 i 1 5S pitSM go {/«) 59 & 60 Vict. c. 25. rJ"^ T^'*.^''®'l '? °^®^* "'6 case of Kelsall v. Tyler, 25 L. J. Ex. i«. Iheold Act had "on account of," ^ > J • 3J- i 238 THE LAW.S OF INSURANCE. law, and may also grant to either party such discovery as to documents and otherwise or sucli inspection of documents as might be granted by any Court of Law or Equity, such discovery to be made on behalf of the society by such officer of the same as such Court or registrar may determine. Arbitration By the Eailway Passengers' Assurance Company's EaUwayPas- ^c*'' ^864 (27&28 Vict. c. cxxv.), the Company, or sengers'Assur- assured, or the representatives of tlie assured, may re- paiiy's Act. quire any question or difference arising on any contract of insurance entered into by the company to be referred to arbitration (ss. 3, 16), and if the assured, or his legal representatives, shall, in ft case referable to arbitration under the Act, commence an action against the company, the Court or a judge may, upon the appli- cation of the company, stay all proceedings in the action upon being satisfied that no sufficient reason exists why the matters cannot be, or ouglit not to be, referred to arbitration ^d that the company were at the time of the bringing ./ the action, and still are, ready and willing to concur in all acts necessary and proper for causing the matters to be decided by arbi- tration (s. 33). Under this statute, if arbitration is required by the company before action, then upon an action being commenced the company might plead their demand of arbitration as an answer to the action, or apply to the Court to stay proceedings. If, how- ever, arbitration is not required by the company l^efore action brought, and after the commencement of the action they apply for a stay of proceedings therem, the Court can only grant it upon being satisfied as provided by s. 33, and the onus of so satisfying the Court rests upon the company {p). (p) Fox V. Ba'dwmj Passengers', &c., Co., 54 I,. J. Q. B. 505. 52 L. T. 672, I Times L. E. 383. ( 239 ) CHArTER X INDEMNITY. All policies on property are contracts of indemnity, AU policies on and the law will not permit them to be otherwise con- conCfs of strued (a). It is quite immaterial what may be the indemnity, nature of the property or risk (?>). Even in the case of valued policies, which are rare, except in marine in- Valued surance, the interest of the assured must be proved (c). 1'°'""®^- And the valuation only dispenses witli proof of the amount of such interest. Valued fire policies are prac- tically unknown in England (d). Insurance is a contract of indemnity, not against acci- indemnity is dent, but against loss caused by accident ; therefore, if a n^faglinsT policy is a time policy, the loss, and not merely the acci- accident, dent, must accrue within the time covered by the policy (e). "Whilst the contract is one of indemnity, it is Extent of a contract of indemnity only to the amount whereon ^"^'''""'^y- premium has been paid. The indemnity is limited to the amount named in the policy, and can in no case exceed that. This is the rule as to specific policies, i.e., those in which the things insured are constant and not variable from day to day, as in the case of merchandise. Such policies are those on houses and buildings. Wliere . the policy is made subject to the conditions of average, and the goods at risk exceed in value the amount insured on goods in the place named the risk only (a) London Assurance v. Sainshuni, ^ Dour. 241; (178O. Gnss v. TF/ insured against (/■). But as regards houses full in- demnity to a tenant or person having a limited occupying interest therein seems to includ( not the mere market value of such interest, but the pecunitiiy value plus the value of the beneficial enjoyment (/). In such case indemnity is best attained by reinstatement. The assured, moreover, cannot, under a policy on tlie house, recover any damages for loss of occupation, or the rent of a house which he is obliged to take in (/) Mrhjht V. Pole, i A. & E. 621. ((j) Alenzieii v. Nwth British, 9 C. S, C. (2nd .series) 694, following Wri(/ht V. Pole. (A) Theobald v. l{(iihc(nj ransenqers' Assurance Co., 10 Ex. 45, 23 L. J, Ex. 249, 18 Jur. 583, 23 L. T. 222, 2 W. R. 528. (/) Johnstone v. West of Scotland Co., 7 C. S. C. (ist series) 53, 55 n. (k) Hercules Co. v. Hunter, 14 C!. S. C. Cist series) 1 137, 15 C. 8. C. 800. {I) Castelhin v. Preston, 11 Q. B, D. 4(X), per Bowen, L.J. See note {h) supra. INDEMNITY. 241 consequence of tlie fiivj. Those risks must be covered by a special insurance on rent (m). A policy is not a contract of perfect indemnity (n), but u contract of indemnity against losses which ai-ise ouL "f a specilied class of accidents. Particular losses iri!)\ bt; selected, and the as'^ured be guaranteed against theui only (0). The indemnity offered is also limited in amount, and also bv certain other qualifications; such Deductiou. as, for instance, tiu- aarine rule, one-third new for old, ^"^ 'o"" °J'l- which has sprung up by the custom of trade, and operates in soi ,0 cases to give more and in others to give less than complete indemnity (p). Thi.s principle has in Ireland been applied to fire insurance; but it was said by Pennefather, B., that no settled rule of dt-ducti( ,, .ne-third or one- fourth, or of any other sum. existed in tiie ca.se of old premises or property, but that the jury might, as a criterion of the actual damage, see what would be the expense of placing new macliiuery, such os was in the premises before the fire, and deduct therefrom the difference in value between the new and the old (q), since the cost of repairing i,-. an element in the damage suffered by the assured in such a case. Goods and furniture, especially the former, can of course be replaced without other appreciable expense tiian their cost, but machinery and the like required fixing and setting in position, and sometimes su'ii work is costly and like rebuilding. Vance V. Foster (q) was a decision on circuit, and no case seems to have come before the full courts. It is clear that the custoin t^.. lix the ratio at o)ie-third new (;«) Buchanan, v. L!rf,^,„aK London, and Globe, 1 1 ('. S C f^tli ^enVs^ 1032, 21 Sc. L. 1{. 696. ' (n) Ii-iunfi V. Mnnvinq, i H. L. C. 287, 307, 2 (' '5 784 s«^"l '^ w ^ir'^'o' ^'- ■'•' '" ^'^"^'' '■• """'^ 55 f- •'. Q. ii."43- 53 •- T. Jp) Alfchlwn V. Lohy 4 App. Cas. 755, 762, 49 L. .T. Q. B. 123. 41 U J. M. S. 321 29 W. Ii. I. ,}'/) YT'^y-J'"'^'''' '■■• ^'•'■''- ^^^f- 47 (1841). Iferrale-s v. Hunter. 14 U b. O. (1st aeries) 1137, 15 do. 800. Q S?;» ^5 ^l^ '■■ ^M ^ H »*««. ^ ^^H §2 ^ H feo ^1 "■'n: ^^1 ^^1 ^^^1 1 i_M V] I? n %,. % c'^ <^ 'f ^j w JS. O 7 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 1.25 1.4 21 2.2 2.0 1.6 / O // .% \ .^ /- '^i ^^^ m •17 \ s \ % .V r^u M c^ Sciences Corpordtion 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 ^ H ^ ■w^ ^ 242 THE LAWS OF IN.SUEANCE. for old is not established us to fire losses on land, but that similar computation is necessary to prevent over- compensation. Doctrine of abaD'^onment applicable to The doctrine of abandonment intended to assist the principle of indemnity seems applicable not only fire insurance. ^^ marine but also to fire insurance, for Brett, L. J., said (r) : " I concur in what has been said by Lord Blackburn (s), that abandonment is not peculiar to policies ot marine insurance ; abandonment is part of every contract of indemnity. Whenever, there- fore, there is a contract of indemnity and a claim undei' it for an absolute indemnity, there must be an abandonment on the part of the person claiminw indemnity of all his right in respect of that for which he receives indemnity." Principle of abandonment. Why doctrine of abandon- ment rarely applied. Mr. Marshall thus states the principle upon which the right of abandoning rests (t) : " The assured may abandon in every case where, by the happening of any of the misfortunes or perils insured against, the thing insured is so damaged and spoiled, or the charges for its salvage are so high, that the costs of repairing, restoring, or recovering it would exceed its marketable value after they had been assured, or where the assured is deprived of the free disposal of it under circumstances which render its restitution uncertain." Probably one reason why the doctrine of abandon- ment is not more frequently applied in those cases where furniture or goods are insured is to be found in the nature of such articles. A body of the size and complex structure of a ship may be so injured as to be useless for its special practical purposes without becoming of no saleable value ; and in such a case it M KaltenbacU v. M'Kenzie, 3 C. P. D. 467, 470, 38 L. T. N. S. 943, 26 W. K. 844. (h) Ranldn v. Potter, L. E. 6 H. L. 83, 1 18, 42 L. J. C. P. 169, 29 N. S. 142, 22 W. R. I. See also Mason v, Sainsbut'y, 3 Doug. 63. (() Marshall on Insurance, 4tli ed. 452. L.T. M:iiijJ, INDEM IT. ,.- is obviously fair that such value should be surrendered to the insurer when he pays as for a total loss. But such ^.hmgs as goods or furniture are, when considered singly, of a much simpler, smaller, and less costly character, and many of them are usually covered by one policy. Where, therefore, a part is injured or destroyed, the damaged articles are usually paid for by the insurer. The value of the injured part being separate and distmct from, and not, as in tlie case of a ship inseparably connected with the injured part, a full and fair deduction in respect of it can be made from the amount of the policy; and the assured is in no degree injured by having to retain the uninjured part of the subject-matter of the insurance. TTsually the damaged property is treated as salvage and sold for what it will fetch, the sale price beina accounted for between the parties. " Whatever may be the difficulties arising in this branch Principle on 01 insurance Iaw,it is clear that the principle upon which ^^'''^ *'^"- abandonment rests, viz., indemnity, does apply, as tlie S'TtV"''' insurer is entitled on payment to all ways and means SLT "' of lessening the loss (u), though the rule as to notice of abaudoument in claims for a constructive total loss is marine only. Where an insurer elects to reinstate, he is entitled msraer to the old materials left by the fire, and in any case he remstatiug. will seek to reduce the amount of his indemnity bym'S.'""'" deducting their value. "When the person indemnified [the assured] has a Eight of rignt to indemnity, and has elected to enforce his '"'v!^""'' '" claim, the chance of any benefit from an improvement i-^c? of the value of what is in existence, and the risk of al"™ '^ any loss from its deterioration, are transferred from the (m) Sa7iHn v. Potter, L. R. 6 H. L 87 at iiX ^o t inn ^ :?JiB: S&C9 liiiiii" . ( n i I- i i; l':. 244 THE LAWS OF INSURANCE. person indemnified to those who indemnify ; and there- fore, if the state of things is such that steps may be taken to improve the value of what remains, or to preserve it from further deterioration, such steps from the moment of election concern the party indemnifying, who ought, therefore, to be informed promptly of the election to come upon him, in order that he may, if he pleases, take steps for his own protection " (x). In fire insurance this is effected by requiring immediate notice of a fire, and obtaining licence by a condition in the policy to enter the premises insured or wherein the things insured are. Assured's election tu claim for partial loss irrevocable. On general princijples of law (not confined to marine insurance) an election once made is determined for ever, and such determination may be shown by any appropriate act. And therefore anything which indi- cates that the person indemnified has determined to take to himself the chance of benefit from an increased value in the part saved, and only claim for the partial loss, will determine his election to do so (y). Valued policy indemnity to amount of valuation. A valued policy is a contract of indemnity to the owner, to the amount at which the property is valued in the policy. The assured, if he has received on other policies, can only ask for such a sum as, with that already accepted, will give him the amount which the insurers by the policy sued on have bargained to pay him. The amount already paid is to be treated as salvage received by the owner after constructive total loss. He and the insurer are both estopped from denying the value stated in the policy (z). (x) Per Blackburn. J., Batikin v. Potter, L. R. 6 H. L. 83, 119. (y) Ibid. And see Cflougli v. London and North- Western Bailway. L. R. 7 Ex. 26, 34, 41 L. .J. Ex. 17, 25 L. T. N. S. 708, 20 VV. R. 189. Mitchell V. Edit, i T. R. 608, explained in Roux v. Salvadm\ 3 Bins:. N. C. 266. (3) Bruce v. Jones, 32 li. J. Ex. 132, 7 L. T. N. S. 748, gJnr. N. S. 628. inV.R. 371. pptitial INDEMNITY. 245 The insurer, having contracted to indemnify, could insurer can't not insist on others being sued first who were primarily prf^ij*'*^ liable (a), or on consolidation of his action with others gu^^^ij'/'® by the same assured against other insurers in respect of the same loss (&). And it is no defence to an action by the assured against the party causing the damage, that the assured has been paid by his insurers (c). Subrogation, according to the older and narrower Subrogation, view, is the treating of an insurer, who has paid a ^^'^* ** '^" loss, for which some other person is primarily liable to the assured, as standing in the place of the assured so far as regards his rights of action against such per- son. This view of the subject is well expressed in an American Cuse by the following definition : — " Subroga- tion is the substitution of one person in place of another, whether as a creditor or as the possessor of any other rightful claim, so that he who is substituted succeeds to the rights of the other in relation to the claim, its rights, remedies, or secuiiLies "(d). Subrogation, as con- stituting part of the law of indemnity, includes more than the mere transference to the insurer of existing rights of action against third parties vested in the assured in respect of the loss. The insurer can recover from tlie assured the value of any benefit received by him from other sources in excess of his actual loss, as well as the value of his rights and remedies against third parties which he has renounced, and to which but for such renunciation the insurer would have a right to be subrogated (e). Probably the best and most inclusive definition of subrogation has been given by the Master of the («) Dickenson v. Jardine, 16 W. R. 1169, 18 L. T. N. S. 717, L. 1\. 3 C. r. 639. (6) M-Gregor v. Horsfull, 3 M. & W. 320. (c) Promllor MontkeUo v. MoUison, 17 Howard (U. S.) 152. Yateny. While, 4 liirig. N. C. 272. (d) Jackson, v. lioylston Co., 139 Mass. 510. (e) West of England Fire Insurance Co. v, Inaaas (iSq7), i O. B. 226, 66 L. J. y. li. 36. i I f ^ iii^' ■'^ f i- ill 111 246 Per Lord Esher. THE LAWS OF INSURANCE. IJolls, Lord Esher, in Castellain v. Preston (/), as follows :— " As between the insurer and the assured, the insurer is entitled to the advantage of every ri). beSo/''°"* , ^^^ ^^^ ^« «o Stringent as to tlie principle of in- saivage illegal, demnity, that policies without benefit of salvage are in express terms made illegal (q). As the doctrine of abandonment is seldom applied to any but marine risks, questions of salvage do not arise so often in fire policies. But the amount of salvage is always an element in the computation of damages by fire, except where the insurers elect to take the salvage and pay in full, reimbursing themselves so far as they can by selling the salvage for what it will fetch. Generally speaking, as to salvage the insurer stands in the place of the assured, and can claim all that is salved ; and as to damage, the insurer is entitled to use and exercise the ways and means open to the assured for diminishing the loss and obtaining compensation (r). a^'gaiSsured , ^" '"'"''' '""'^ the party through whose fault the good against ^oss occurred can only assert the right of the assured subrogated ^ud will be Subject to any defences or equities which would be good against him (s). The insurer stands in no relation of contract or privity with such a party. His title arises out of the contract of insurance, and Position of insurer as to salvage and damage. subrogated insurer ip) The Potomac, %ihi mpra. (q) j^Ukin.x. Jvpe 2 C. V. 1). 375, 46 L. J. ('. P. 824. 36 L. T. K S. 851. h,n}. f n" '■■ ^"''■''"'>}, Ves. Sen. 98. Londo,, jisurance v. SaL bury 3 Doug. 245, 253. f'o.tellam v. Pre.sto>K ubl supra. (*■) Phcemx (h. v. Ene Co., 117 U. S. (10 Davis) jfs :t.; INDEMNITY. 249 is derived from the assured alone, and can only be enforced in right of the latter {t) . Thus, where damage occurred through contributory negligence, that defence would be an answer to the action of the subrogated insurer. Again, if two ships of the same owner collided by the fault of one to the destruction of the other, the insurers could not sue the owner, since they claim under liira (u). As between carrier and insurer the liability to the insurer owner of the goods carried and insured is primarily gyfJJJg^j^^ on the carrier, and the insurers, when they have against carrier, indemnified the assured, are equitably entitled to suc- ceed to the right which he had against the carrier. Tlie owner, however, may make tlie contract of carriage to suit his own interest, and may release the carrier from all liability, but such release, or the intention to grant it, must be disclosed to the insurer if it be a material fact which the assured knew, or should have known, would affect the premium or the willingness of the insurers to take the risk (x). It has been held in America that a bargain by the carrier to have the benefit of any insurances on goods entrusted to him will not avoid a policy effected without disclosing such bargain (y), and in one case the insurers were held to have notice of a bill of lading containing a proviso to the above effect (z). But these cases do not seem correctly to apply the rule indicated above and laid down in Tate v. Hyslop. If goods are insured during transport, it must be material to the insurer to know the nature of the contract of carriage, and whether it con- tains any variation from the ordinary liabilities imposed 592, (0 PhoinLr Co. v. Erie Co., 117 U. S. (10 Davis) 321. (m) Simpson v. Thompson, 3 App. Cas. 279, 38 \j. T. N. S. i. (x) Tate V. Hyslop, 15 Q. [K D. 368 at 377, 54 L. J. Q. J}. 53 L. T. 581. Over v. Luhe Erie, 63 Fed. liep. 34. (y) PhoMix Co. v. Erie Co., 117 U. S. (10 Davis) 312. Jackson Co. V. Boyhtoii Co., 52 Am. Kep. 728, 139 Mass. 508. (z) British a>ul Foreign Murine Co. v. (hilf Jiaibcai/ Co., 51 Am. Kep. 661. And see liintoid v. New York Central Railway Co., 21 Blatch! (U. S. Circ. Ct.) 443. ^J^ ^ P ^ 250 THE LAWS OF INSUKANCE. by law on carriers, or in fact undertaken by them; and further, even if a carrier can contract himself out of any liability for loss of the goods entrusted to him, this is a different thing from bargaining to have the benefit of any insurance effected by the owner. The latter bargain does not amount to a contract by the owner to insure, but an undertaking tliat if he does so he will release his rights against the carrier. And such a bargain would, in an ordinary case, be a fraud on the insurer, unless it can be said that he has notice of the contract of carriage, since it is directly aimed at defeating the insurer's subrogation («). biKladiu'" ^ stipulation in a bill of lading, that in case of giving Irrier ^^^s the Carrier shall have the benefit of any insurance limned. ^" ^^^^ Sooda, does not entitle the carrier to receive such benefit before an action can be brought against him for the loss (h). Ee-in8urer. IJe-insurers in America, on payment of their propor- tion of a loss, have been allowed to sue in Admiralty against the carrier of the goods injured. The question in any case seems to be merely one of procedure, as a re-insurer is clearly subrogated to the insurer's rights, and so to those of the assured (c) and any salvage or benefit thereof (d). Partial A person partially insured can also sue any party thirdp"ersoi?' primarily liable for the loss. Such party may not Ee.'""^ profit by the insurance. But the assured will recover (as to the balance in excess of indemnity) as trustee for the insurer (c). Nepriigence of If a fire is causcd by the negligence of servants of (n) Dufoimet v. Bishop, 18 Q. 13. D. at 378-379. [h) Jinmnv. South Carolinu Ilailicuy Co. (1887-QI) Fed. Een U S Dig. 128. \ / ^ / r (f) The Ocean Wave, 5 Hissell (0. Ct. U. S.) 378. id) Beluware Co. v. Quaker Citi/ r„., 3 Grant (Penn.) 71, (e) heelMly. Bai/roaff Co., 13 Wall. (U. S.) 367, and cases there collected. Vommerciol [ nion v. /,;>,ter, Infra, note (/) INDEMNFTV. 251 by them; niself out id to him, have the ler. The ct by the ' he does er. And 3 a fraud las notice aimed at 1 case of insurance receive t against ir propor- Ldmiralty question iure, as a 's rights, ilvage or ny party may not i recover 3 trustee vants of Eep. u. s. :ase8 there ii railway or steamer (/), the insurers are entitled to sorvanta, or subrogation. So also in case of negligence by muni- SJuhor^ulg. cii)al authorities {g). So also for damage by collision Collision, lietween river steamers (h). Wiiere the amount insured and paid is less than the Where insur- value of the subject-matter of the insurance or the than damage, damage done thereto, in an action against the person */*".''*'^ '?^ responsible for the damage the assured would be the ag^^nst wrong thmiiins litis, and not obliged to lend hi.s nanus to the insurers for the purpose of proceedings by them. In such a case the assured should sue for the whole Assured must damage, and not release the action collusively or i^nsureX*^'^" compromise it in any way injuriously to the insurers, ""'shts. and lie will be accountable for the proceeds of such action so far as they with the insurance exceed complete indemnity, and he will be liable for any- thing done in violation of his ecjuitable duty to the insurers {i). In tlie Australian case of Smtdviore v. Australian Assured can- Gasliglit Company, the insured property was injured by rnsureS right an explosion of gas due to the defendants' nealisfence. *° subrogatiou r^. , . . , , 00 or to use The assured, in consideration of compensation for such assured's of the damage as was not covered by insurance, gave °"'™^' to the defendants an absolute release from all claims of him (tlie assured) on the defendants, and covenanted not to let any one use his name in bringing any action against the defendants in respect of the said damage. It was held that the insurers, having paid, could sue in (/) QuiIhc Fire v. *bV. Aov/Zn, 7 Moore P. ( '. 286, £ Lr. ( 'an. Rep. 222i (//) Reisoi- V. Prorhiritil Jiisurtnice Co., 33 U. C. (Q. B.) 357. Cmu- niercidl UnJon v. Llnter, 9 (Jli. App, 483. 43 L, .J. (Jh. 601. Barrell V. Tibblt^. 5 Q. R D. 560. 50 I.. J. Q. 15. 33, 42 L. T. N. S. 797, 29 W. 11. 66. (h) The Potomac, 105 II. S. (15 Otto) 630. ^ (/) London Assurujwe v. SdhiKlmnj, 3 Doii^. 245, per Willes, J. timidmnre v. Amtralimi Oadight Co., 2 N. S. W. Law 219. Com- meiriid Union v. Lister, 9 Ch. App. 483, 43 L. ./. (!h. 601. Simpnoti. v. Thompmii, 3 App. Gas. 279. 293, 38 L. 'V. N. S. i. Tlie Law Fire jUnurauce Co. v. Oakley, 4 Times f.. 1!. 309. No defence to insurers that other parties first liable. -5- THE LAWH OF LNSL'KANtE. the assurcd's name, whether he liked it or not, and that the release applied only to the uninsured part of the loss, that alone beinj,' mentioned in the recitals (/). This view seems to be in accordance with the Ku-disii law (I) and with principle, for to make such a barJjHia after loss is to make away with the salvage in deroga- tion of the duty of " utmost good faith." Thou^^h it may not bo necessary to disclose >uatters likely to afl'ect the amount of salvage before loss (7/1), yet. after loss, the assured nmst not interfere with tlie salvage in manner prejudicial to the insurer. The insurers cannot plead as a defence to an action against them that other parties, not insurers, are first liable and should be hrst sued {>i). In this respect they are like sureties, and, having undertaken to indemnify against the loss of the thing insured, they cannot esca])e from the performance of their under- taking by showing the cause of its loss to be the fault of a third person. If the assured, after payment by tiie insuieis, obtains by action (or otherwise than by special gift not intended to be by way of indemnity (0) ). any\ioney (or other indemnity which has a money equivalent '(/;) ) which together with the sum received from the insurers exceeds the total value of the property insured, the in- surer will be entitled to recover from the assured the amount of such surplus (q). Principle of The principle laid down in DarrcU v. minf.^ was (/.) Smulmore v. Australian Gmlinht Co., 2 N. S. W. Law 219 (/) Dujourvet v. Blxhoi}, 18 Q. B. D. 37S ^' (m) Tatey. Hy.hp 15 Q. B. D. 358. 54 h. .T. Q. J}. 592, 53 L.T cSi i6w.K:t;69'" ""• ■^"■'^""'' ^'- ^- 3 '• ^* 639, 18 X ft. s.^i;; Jt ?"n"s"1;'7 t w'lfts' ^ ^^^' ''''• ^^" ^' ''■ ''• '^- ^'- ^'^' N.^g 7?rS W '^''t ''^•^■''- 5'°- 5° '• •'• '^- ^- -• 42 1- T. 49^ T^N^Vsi W^'e's^; ^- ''• ''■ ^'°' 53 L. .1. Q. B. 366, Money received by assured after payment by insurers, I'uures to their benefit. INDEMNITY. 253 3t, and tliiit •art of the recitals (/■). lie Kuglisii ft Ijarguiii in deroga- Thougli it likely to , yet, after salvage in an action ■s, are first lis resjiect rtaken to ured, ihey Bir under- the faidt iiisureis, il gift not ny money alent (p) ) le insurers id, the in- sured the ibhift^ was IV 219. . N. S. 717, Q. B. 54S. 3, 42 I.. T. Q. B. 360, asserted in i85Q in Lower Canada in what seemed a Jndomnity . , . , „ p 1 • 1 oxplained on case of first impression (v), the facts of wliich were as inauranco by , mortgagee. follow : — A man sold land and took a mortgage in lieu of cash from the purchaser, with an undertaking to build and insure as a security. He insured his mortgage interest at ^600. The buildings were erected, insured, and V)urnt; but, before the mortgagee brought his action, the purchaser reinstated (s). The Court refused to allow the mortgagee to recover on his policy, and laid down the law as follows : — 1. The contract of insurance being a contract of indemnity, it is the actual loss alone which can be the basis of computation under the contract, and the loss must be determined by the actual state of the case at the time of action brought (t). 2. The insurance in the case of a mortgagee insuring the liouse or corpus 011 which the mortgage rests, and ill the possession of the mortgagor or owner thereof at the time of effecting the insurance, is a special insurance of the mortgagee's interest in the thing insured, and is limited to the interest specified in the policy itself {u). 3. The special interest thus insured by the mort- gagee is not the safety of the whole property insured, but only so much of it as may be necessary to cover his mortgage debt. 4. In the present instance the consiitut or charge which was insured to the extent of ;^400 on the buildings erected on the land ^;old, as a security for the payment of the constitut, is amply covered and protected by the value of the buildings, erected by the (r) Matthewson v. Wentev)), 4 lit*. Can. Jur. 57, 10 Li\ Can. Rep. 8. (.•*) See Hamilton v. Mendes, 2 Burr. 1198. (t) Parson Merc. liaw 509. (m) Matthewson v. Western, 4 Lr. Can. Jur. 57, 10 Lr, Can. Hep. 8. ■ I' ' ^ a, 254 Subrogation of insuior to niortgagee'H rights. THE L\WS OF INKUJtANCE. (lobtor of the constikU, on tlio land after tlie fire had occurred and before action brouglit, " ,so that tlie security of the plaintiff is not in any way impaired or diiuinished and consequently no loss in fact has been sustained." ' Whilst the mortgagor is not entitled tr the benefit of the mortgagee's contract, the mortgagee is not entitled to be indemnified from two quarters (.r). Subrogation by an insurer to tlie rights of a mort- gagee has been doubted in Canada (y), but in this case the insurance was in effect the mortgagor's, being at his costs and charges, and on his intercKt. Wilson, .J., there well said: "The question can only arise when the mortgagee of liis own motion, and at his own risk and expense, and for his sole beneHt, makes tlie insurance, and when the insurance-money is as great as or greater tlian the debt. If the debt is greater the insurers can never claim more than a right to par- ticipate in the debt to the amount greater than or equal to nhe insurance-money." And the diiUcultics and solution here suggested have presented themselves to our Courts (v/). In Castdlain v. Preston, the Court pressed by the difficulties as to specific performance' refrained (though by a majority so inclined) from' laying it down as law that an insurer who has to pay (■' the assured (an unpaid vendor), stili in possession of the property insured, and having a lien thereon for the purchase-money enforceable notwithstanding the lire would be entitled to enforce that lien against the pur- chaser. In tiiat case the insurer got back the insurance- money on the ground that the assured had been doubly lndemni^:ed, for he had not only obtained the insur- ance-money, but enforced his vendor's lien. (x) But see Levy v, Mcrchmts Co., 52 1j. T. 26x {y) Iteesoi' v Prvnhiciol, etc. Co -ii IT ("< /n » \ -,,-, /i • Vo. V. Canaua las. . T. N. S, 29, 31 W. R. 557. (c) New Jiiughind Fire, > insurance. IS that when the assured has recovered to the full Tor Lord Low. extent of his loss under one policy, the insurer under that policy can recover from other underwriters, who have insured the same interest against the same risks, a rateable sum by way of contribution. The foundation of the rule is that a contract of marine insurance is one of indemnity, and that the insured, whatever the amount of his insurance or the number of underwriters with whom he has contracted, can never recover more than is required to indemnify him. The different policies, being all with the same person and against the same risk, are therefore regarded as truly one insurance ; and if one of the underwriters is compelled to meet the whole claim, he is entitled to claim con- tribution from the other underwriters, just as a surety or cautioner who pays the whole debt is entitled to rateable relief against his co-sureties or co-cautioners. There is no reason in principle why the same rule \\: (r) The Sickness aiol. Accident Insurance Association v, T/ie General Acciihnt Insurance C&rporatiou, 29 Sco. L. Kcp. S36. 26o TlIK r.AWS or INSUKANOK. ScottLifi Antcablv V. Narthi'rii A»miriiii(e. should not be applied to other classes of insurance which are also contracts of indenniity." In the case under consideration by Lord Low, a tramway company had effected policies with two insurance companies against claims of compensation for injuries caused by its cars. One of the insurance companies, having in- (lemnified the tramway company for a loss covered l)y its policy, was held entitled to recover in an action of contribution against the other insurance company. If a bailee insures his liability and the bailor insures his interest in the goods, the bailor's insurer is entitled to recover from the bailee or his insurer the wb.ole damage, not a proportionate part, since each only represents his assured, and the right of the bailor against the bailee is not to contribution merely, but to complete indemnity for the loss of his goods (,s). Tn a Scotch case (/!), premises on which there were several mortgages were insured under four policies in the name of the first mortgag- .s primo loco, and of the mortgagors in reversion. Each policy contained a contribution clause identical with that in North British and Mercantile v. London, Liverpool, and Globe, already cited. The premises were also insured in favour of subsequent mortgagees in the first place, and the mortgagors in reversion, by policies containing a similar clause. The mortgagors paid for all the policies, and on a fire occurring the first mortgagees sued on their policies. The insurance companies objected that the other three companies were not called on for contribution. The Court overruled the objection on the grounds— (i) That the plaintiffs had no right of action against the insurers on the last three policies, but only on the first four. (s) Kortlt British and Mercantile v. London, Liverpool, and Globe, nil snj>r(i. (t) Scottlnh Amicable v. Northern, ii C'. S. C. (4th scries) 287, INDEMNITY. (2) That the words " same property " in the contri- bution clause meant the same proprietary interest, " the particular security, estate, or interest, which the insur- ance was to protect, and no ci/her." (3) That the first mortgagees had insured their own interest, and that no subsequent insurance by other mortgagees could diminish that interest. The opinion of the Lord Ordinary, wliich was approved by the Court of Session, was as follows (u) : — " The clause of contribution can have no other object or purpose than in the case supposed to reduce the liability of the subscribing companies to that of under- writers, that is, a liability under which the assured should be entitled to recover the full amount of his claim in payments from the several contributories, but should not be entitled in case of partial loss to throw the loss on one or more contributories to the exclusion of the others. My interpretation of the clause carries out this object. Under the defenders' contention the pursuers would not recover the full amount of their claim, because their view involves the division of tlie loss into seven shares, of which the pursuers would only recover four. The division to be applied to the sum assured by the Northern Company, if the contract is a fair one, must be the ratio of the aggregate liability of the contributories to the actual loss. The defen- ders' proposal is to increase the division by adding to it the liability of persons v/ho are not contributories. It is, I think, a good rea,G'jn for rejecting their contri- bution, that it would enable insurance companies to evade fulfilment of their obligations. Another reason for rejecting it is that under it the right of the assured would be liable to be diminished by subsequent acts of parties not under their control. In the present case, for example, it is said that a second bondholder 261 Per Lord M'Laren. Insurers of iirst mort- gagees cannot (•laim con-i tribution from insurers of socond mortgagt'os, if the policies cdver KBveral interests of the different mortgages. («) 1 1 C. IS. ('. (4th series) 290, !S^ 262 THE LAWS OP INSUUANCK. [mortgagee], by oftecting his innirance, has dimin- ished the claim of tlie first bondi older to a propor- tionate extent. A third reason agiiinst the defenders' contention is that in the case of a total loss it leads to the result that the indemnity is to be shared between the first and second bondholders in proportion to the amount of their insurances, though in equity the first bondholder, if covered by insurance, ought to recover to the extent of his bond, and the second bondholder ought only to recover the difference between that sum and the worth of the property, that difference evi- dently being the limit of his insurable interest." And the obligation of the later companies is to indemnify the deferred creditor should he suffer from the conse- quences of a fire ; and if this creditor does not suffer loss, there cannot be brought against them any claim for indemnification (x). They are to make up 'loss to the party whom they have assured ; they are under no obligation to indemnify or to enter into arrangements for indemnifying a preferred creditor. The plaintiffs were suing for what was theirs, and not in the reversioners' interest. Scottish Amicable v. lHortheiti Assuravcf discussed. The case turns on what was meant to be insured the property itself or the mortgagee's interest in each case. If the former, which is supported by the fact that the mortgagor paid the premiums, contribution would seem proper. But, on the other hand, this would enable the mortgagor to diminish the first mort- gagee's security under the first policies ; and the only way to keep up his title is to let him recover on the policies, which are his security, or else to reinstate, or, thirdly, to give the insurers paying him subrogation against the mortgagor. In this case the unhappy mortgagor, by providing a security for his mortgagee, would be simply giving the insurers a right of recourse ;MA (v) Same case, 294 per r^ord Craighill. INDEMNITY. 263 IS dimin- a propor- defenders' t leads to 1 between on to the '■ the first recover to mdholder that sum ence evi- ;." And idemnify le conse- ot suHier ny claim ^ loss to inder no igements 3irs, and sured — in each the fact ribution id, this 5t mort- he only on the :ate, or, owatiou tihappy •tgagee, Bcourse against himself. But reinstatement would bo the true solution, since thereby — The first and puisne incumbrancers would have their security preserved. The debtors would not be liable to subrogation. The insurers could contribute rateably to reinstate- ment without possibility of claim (y). lu the case under discussion, if, after satisfying the claims of the mortgagees on their several policies, there still remained a balance of loss, that would be damage to the mortgagors interest, and quoad that all the companies would contribute, that being, if the Court were right, the only interest common to all the policies. The Scotch Courts hold that the assured cannot select his debtor, but that insurers of the same interest may make their right to rateable contribution avail- able in a question with the common creditor (z). In liUgland the assured ;an sue which insurer he chooses, l)ut contribution may be obtained by means of Ord. xvi. r. 48 of the Kules of the Supreme Court, 1883. Contribution differs from subrogation in several Contribution respects. In the first place, it implies, as before men- with tioned, more than one contract of assurance, each of 8i'"'°8»**o'»« wfiich undertakes a similar, if not identical, liability in respect of the same subject-matter and the same interest therein. Secondly, the amount of the insur- ances must exceed the value of the property or the damage done to it. When these circumstances exist, the insurers by contribution distribute the actual loss in such a way that each bears his proper share. (y) See Lord Young's opinion, Md. , 295, in which he takes the same view of insurance on buildings as did James, L.J., in Bayner v. Preston, 18 Ch. D. I, so L. J. Ch. 472, 44 L. T. 787^ 29 W. R. 547. (2) ir 0, S. C. (4ih series), at p. 303, per Lord Justice Clerk Moaeteift'. !I5'5 itjaa* 264 Consignor Hiid ooDflignee. Policy may he ■howii not to be a contri- buting one. Condition as to •ontribution. TIIK LAWS OF INSURANCE. The ono thing which contribution has in commoa with subrogjition is to reduce the indenmification of the assured witliin the bounds of a real indeinuity. For subrogation there need not be more than one policy, nor need tliat oiler complete indemnity. All that is necessary is that there should be, besides the insurer, another person liable to the assured, or some other means of indemnity open to the assured other than and besides recourse to his insurer. In 8U(;h a case the principle of subrogation will apply, and will entitle the insurer, not, as in contribution, merely to a rateable reduction of the indemnity paid by him, but to the enforcement of the assured's rights against otljcrs to the full e ;tent of that indemnity. If the consignee takes out policies on goods held by him in trust (in the mercantile sense), and the con- signors elfect policies, each on his own goods (a), or if tiie consignee eflect policies also in their name, this will be a case for contribution if the consignor's policy IS so drawn as to cover the merchandise and not merely the consignor's interest therein (b). But though a policy on the face of it is a contri- buting policy, the course of dealing may be given in evidence to show that it was not so intended wlien the policy in (luestion is not a contract between tlie parties to the action (e). hi some cases a iloating policy has been held not liable to contribute rateably with specific policies covering tlie whole amount (d), and in others it has been held liable (e). Tlie condition as to contribution usually provides («) Wairrs v. MomnJi, 5 E. & 15. 870, 25 1.. .1. Q. B. 102, 26 L. T. "" ~ " «-375- " ■ . .,^ - - ^j „..o) 527, 541. {b) Iiolihiu.t V. Firemnv'H Fund hmiratice Co., 16 Watch. (C. Ct I', o.; 122. ^ ■ 11^'/ ^)'' ^^- ^1^' i "V"' -v^- "• 375- " JJome Jmu'rance (h. v. 'jJaUimce miter (o., 93 IT. S. (3 Otto) 527, 541. [b) Jlolilniiti \: Fireman's Fund Inmrmice Co., 16 1 S.) 122. r) Lowell Co. v. ii'afeguard Fire, 88 N. Y. 591 (1882). (/) Juiircfiild v. Liverpool and London, 51 N. Y. 65. e) Merrick v. Oerinania, 54 Penn. 277. n comuioa ification of iinuity. than ono n'liy. All )e8i(le8 tlu) (1, or 8oin<) ired otlior In such a , and will eroly to a im, but to nst others Ls held by the cou- (a), or it' lanie, this »r's policy and not a contri- giveii in led when iveen the I iloating rateably ount {(f), provides 2, 26 J.. T. . lialttinore tcb. (C. Gt. INPrMNiTY. ihat the insured shall not bo entitled to recover from the company any j^reatur proportion of the loss or (luinago than the amount insured bears to the whole sum insured on the property, whether such insurance be by speciHc or by general or Iloating policies and without reference to the solvency or the liability of other insurers (/). Tl»o inaurers are liable in the same ratio that tlieir risks bear to the total risk (g). It is doubtful w'aeLher in case of an insurance against tire on goods, with a clause stipulating for the payment of only a rateable proportion in case of another insurance, if the assured procures another insurance on the same risk, and ihe loss is less than the whole amount insured, he can recover the whole loss from the Hrst insurer, or only a pro raid payment from each (Ji). 265 (y) JvhtMun v. Nortk Britlnh and Mercantile, i Ilolrnes (O.Gt. U. S.) 117. {()) JJurnes v. Hartford Cu., 3 McOary (U. S. Oirc. Ct.) 226. (/*) Stacey v. Franklin Fire, 2 Watts & Herg. (Fenn.) 506, 543. I n i^a ( 266 ) Two kind*. Condition. Average. Proportioij payable. CHAI'TER XI. CONDITIONS AS TO AVERAGK. Conditions on this subject are obscure and little understood. They take two forms- (i) A condition declaring the property insured ^o be subject to the conditions of average. (2) A condition declaring that if any otlvei subsist- ing insurance or insurances effected by the insured or any other person, covering any property by the policy n question insured, either exclusively or together ^l\r^i k'' PJ'P'''^ ^° ^""^ ^"^J^^^ '^ the same usk. should be subject to the conditions of average the insurance on such property under the policy shoSld be subject to the conditions of average in like manner («). The aim of those conditions is to prevent under- insurance just as conditions relating to contribution seek to obtain the benefit for each insurer of another insurance. Each particular assured being bound by the condition of his particular policy, it follows that where several insurances have been made, indirect compulsion m the interests of the general body of con- tributing insurers can be put upon persons not bound to a particular insurer, through the insurer with whom they have contracted. The conditions of average nre .is follows-— If pro- perty is declared subject to average, and the property covered at the time of fire exceed the sum insured at the^time ^f the fire, the assured will receive on his 3 ^a. u. 509, 45 L. ,j, cb. 548, 46 do. 537, 39 L. T. N. .S. 629. and little ure'i to be i subsist- insured or he policy together the same erage, the 3hould be anner («). it undei- itribution ' another lound by ows that indirect y of con- 3t bound ;h whom -If i^ro- property sured at ) on his md Globe, h CONDITIONS AS TO AVEIlAf;K. insurance, not the whole amount of the loss or damage, but only such portion thereof as ascertained by a rule- of-three sum, in the following form : — 267 Value of proporty covered done : damage payable. insured amount : : damage The consequence of this rule is to make the assured his own insurer as to a rateable portion of the loss, determined by the ratio between the value of the goods at risk at the date of the fire and the amount insured tliercon. The aim of the condition is to enforce full iiisuraxice. The rule of average is thus stated in an American Rule of case : — In prorating loss, under a policy covering certain "•^^™fi^®- property also covered by other policies, which include additional property not injured, the proportion to be borne by the former policy is that proportion which ihe amount thereof bears to the total amount of all the policies (6). If the property included in a policy subject to roiicy subject average is covered by other and more specific insurance, spe*cifirpoircy. which applies at the time of fire only to part of the pro- perty insured by the first policy and to no other property, then the policy subject to average only insures the property as to an excess above the specific policies, and that excess will be, if need be, subject to average. i auce. By specific insurance is meant a policy or policies Specific insur- whereby the amount insured is payable irrespective of tiie value of the property within the risk at the time (c). If the specific insurances cover the whole property, the insurer by a floating policy will not have to con- (/;) Page v. Sun Ins. Office, 74 Fed. Rep. 203. (c) Bunyon Fire Ins. 2 and 144 et aeq. I ' I p. .: L. i !iai 268 Buildings anti furniture separate! 3' insured in same poJIiry. Two-thirds clause. THE LAWS OF INSURANCE. tribute, nor will the average stipulations bring him under any liability {d). "" In an insurance on buildings for ;^20oo, and furni- ture for ^2000, separately valued, but in the same policy. It was stipulated that, in case of any other insurance thereon, the assured should not recover on this policy any greater proportion of the loss than tlie amount assured by the insurer should bear to the whole amount assured tlioreon. A second insurance was taken out en building and furniture generally fur j62ooo, and m this case tlie first insurers were held bound to pay two-thirds of the loss caused by a fire and not permitted to contend that the second insur' ance, being on buildings and furniture equally must operate to its full extent on both or either (e). ' While the conditions of average are inserted to ensure full msurance on fluctuating amounts of goods and to prevent policy-holders from covering by their policies goods in excess of the amount insured thereby a similar condition is inserted in some, especiallV mutual marine policies, and in Canada and the United States in policies on houses, &c, in the shape of a two-thirds clause, which works like the averacro con- dition, as will presently be seen, and under which the amount of indemnity, whatever the actual amount insured, is restricted to two-thirds of the value of the subject-matter at the time of the fire. In such a case the value of house or goods may fluctuate, and the amount recoverable will never be the actual damage done, but only a sum not exceeding two-thirds the cash value of the premises, and in any event not ex- ceeding the amount on which premium is paid. Thus, id) Fumjahl V. IJrerpool and London, 51 N. Y. 6c. Per contra ^^(^e) Vnitarim Vov.yreyation v. Western Assurance Co., 26 U. C. (Q. B.) llH CONDITIONS AS TO AVEltAilE. 269 s bring liim ), and furni- n the same f any other recover on 'ss than tlie bo the whole urance was ?nerally fur I were held I by a iire, 3ond insur- ually, must inserted to s of goods, ig by their ed thereby, especially the United shape of a 'erage con- which the il amount lue of the uch a case !, and tlie il damage thirds the t not ex- d. Thus, Per contra, ^ce, 64 Fed. U. C. (Q. 13.) if a building wore insured for ^^"1500, and it wa.s totally destroyed by fire, being at the time worth £iSoo, the assured would under such a policy recover, not ;Ci500, but ;^I200 only (f). Where a separate insurance is effected on separate Application of properties, and the two-thirds value clause applies, cHu'/e'^where the insured can recover only the two-thirds of the ?«pa»'ate , •' insurance of damage done to the particular property injured, and soparato not two-thirds of the whole insurance upon it. Thus, if ^'^°^"^' '^*' a house and furniture were insured for ;^i5oo, the house at ^1000 and furniture at i^Soo, and the former were wholly destroyed, the amount recoverable would not be ^1000, two-thirds of ^^1500, but two- thirdb of the ^1000, that being the limit of indemnity for the house (g). Where different subjects are insured at separate Diffeient amounts specified under one policy, containing a clause fus^i^d at that the company shall be liable to pay to the assured separate , -^ *' amounts m two-thirds 01 all siicn loss or damage by fire as shall same policy, happen, not exceeding the aggregation of the amounts insured, and amounting to no more on any one of the different properties than two-thirds of the value of each at the time of loss, and not exceeding on each the sum it is insured for, the policy is to be treated as a separate insurance upon each subject of insurance, and the company is liable only for two-thirds of the loss on each subject, notwithstanding that the loss on some subjects is less than the amount insured thereon, and the whole loss less than the whole amount insured (h). Average in fire policies is quite a different thing Difference of from average in marine policies. In the latter it marinlVud means a rateable contribution to the damage caused to ^^^'^ (/) Williamson v. Goi-c District Mutual, 26 U. C. (Q. 13.) 145. See Pout V. Hampshire Mutual, 53 Mass. (12 Metcalfe) 555. (a) MHMloch V. Gore District Mutual Fire Inmrance (h., 12 U. C. (Q. B.) 610. (h) King V. Prince Edward City Co., 19 V. C. ((J. P.) 134 S?^ S>» » t. Ij 'i|,f| 270 Average clause in fire policy. Goods in lighters. THE LAWS OF INSURANCE. part of the adventure by a common peril, i.e., the whole adventure is dealt with insoliclo, and any loss is treated as lost by all, to be apportioned among the co-adven- turers or their insurers, if any; whereas the conditions of average in fire assurance aim at lessening the indem- nity payable to the assured. '^ho average clause in a fire policy works in the same way as the rule for estimating the amount of tlie insurer's liability on a valued sea policv. In the latter if an adventure be valued, the insured is estopped in case of loss from saying that the value excee^ls the amount in the policy. And if he has a partial loss, he will only receive an indemnity for such loss calculated by the followino- proportion :_As the actual value is to the actual los^ so IS the insured value to the sum recoverable. Thus, if a ship worth ;^i 5,000 be valued at ^ 10,000, and suffer ^5000 worth of damage not that sum, but £z2>32> 6s. M. will be recovered (i). So if in a fire policy subject to average the policy be lor £10,000 on goods, and ;^i 5,000 worth of goods be withm the risk at the time of the fire, the assured will only get two-thirds of the amount of his loss. A marine average loss on a valued policy would be adjusted in just the same way. And the same principle IS applied to policies on goods afloat in lighter canal boats, &c. {k). The amount at risk on the day of loss in all the owner's boats containing goods covered by the policy is taken (0. and the amount payable for damage to any lighter is calculated as follows :— As the /I\ ^? ^! ^■}i-}- 287, 305, 2 C. B. 784. *' {k) Orowky V Cohen, 3 B. & Ad. 478, i J.. .J. N. S. K B icS (I) Joyce y Kennanl, L. R. 7 Q. B^^S, 41 L- J. Q B 1 7, S L T ^;.> 932, 20 W. R. 233. _^See al«o £uchLau v. Liverjpol, Lidol' to., 21 i?C. Ij. K. C96. CONDITIONS AS TO AVERAGE. 271 e., the whole )S8 is treated e co-adven- e conditions the indem- in the same unt of the 3 the latter, istopped in ixceeds the receive an followintr ictual loss, le. valued at mage, not ■ed (i). the policy 1 of goods le assured loss. would be 5 principle Iter canal ay of loss vered by yable for ; — As the ild. Jrviruj 158. h 25 L. T. >l, London, whole value of goods afloat is to the damage done, so is the whole insurance to the amount payable. Thus, if there be ;^ 10,000 of goods afloat, and the pohcy is for ;^50oo, the damage done being ;^iooo, the amount payable will be ^500. In policies against land risks each difierent loss must be declared separately as it arises. But in marine policies the losses of each voyage are declared at the end of the voyage, and may be lumped together {m). IfiftI ( 272 ) Option to reinstate. Effect of. CHAPTEIi XII. EEINSTATEMENT. The position of insurers under a contract of insurance containing an option to reinstate has been well laid down as follows : — The insurers, in case of liability arising against them on their contract, had an option as to the manner in which they would discharge their liability. One mode looked to the compensation of the insured by the payment of damages for his loss, the other to the restoration of the subject of insurance to its former condition. It could not have been contemplated by the parties that both methods of performance were tc) be pursued. The selection by the insurers of one of those alternatives necessarily constituted an abandon- ment of the other (a). The election of the privilege of restoration involves the rejection, not only of the right to discharge its liability by the payment of damages to the insured, but also those provisions of the contract having reference to that method of performance. From the time of such election the contract between the parties becomes an undertaking on the part of the defendant to build or repair the subject insured, and to restore it to its former condition, and the measure of damages for a breach of the substituted contract does not necessarily depend on the amount of damage inflicted by the peril insured against (b). If, therefore, the insurers elect to reinstate, and their (a) Times Co. v. ffawle, 1 V. & F. 406, 28 1-. .T. Ex 317 (6) Wynlcooi)v. Niagara Fhe, 43 Am. Kep. 686, 91 N. Y. 478. and cases there cited. Jiorell v, Irvivy Fire, 33 N. Y. 429 f insurance n well laid ng against the manner lity. One ired by the her to the its former iiplated by ice were to of one of L abandon- )rivilege of f the right lam ages to e contract ce. From tween the irt of the sured, and e measure i contract 3f damage , and their 1- Y. 478, and REINSTATEMENT. reinstatement is not satisfactory, they cannot, it seems, plead refusal by the assured to arbitrate as an answer to a claim for damages in respect of improper reinstate- ment (c). By the old Metropolitan Building Act {d) it is Reinstato- provided that insurers may, " upon the request of any f ^^*^„ ^ person or persons interested in or entitled unto any c.^s.^s.' 83/ house or houses, or other buildings, which may there- after be burnt down, demolished, or damaged by fire, or upon any grounds of suspicion that the owner or owners, occupier or occupiers, or other person or persons who shall have insured such houf:3 or houses, or other buildings, have been guilty of fraud, or of wilfully setting their house or houses or other build- ings on fire, cause the insurance-money to be laid out and expended, as far as the same will go, towards rebuilding, reinstating, or repairing such house or houses, or other buildings so burnt down, demolished, or damaged by fire, unless the party or parties claim- ing such insurance money shall within sixty days next after his, her, or their claim is adjusted, give a sufficient security to the insurers that the insurance-money shall be laid out and expended as aforesaid, or unless the said insurance-money shall in that time be settled and disposed of to and amongst all the contending parties, to the satisfaction and approbation of the insurers." A building is insured as a building. It is not Building merely the material that is insured, but the beneficial '"/"l"®'^ '" interest of the assured therein (e), and therefore, to *^"'"' prove a total loss, absolute destruction of the material need not be proved. It is enough to show that the building has lost its identity and specific character {/). 273 ! ! (c) Wynloop v. Niaqara Fire, supra. (d) 14 Geo. III. c. 78, s. 83. {e) Gastellainx. Pr.',t» ■ !*!•*"- ^^^1 i^"*^ j^U '•^.•c 1 H s:*^ '; 1 Is 1: ^H ^ ^^H ^^1 ^^1 •^iO ^^^B : ..' ^^H i TS^^"'" :■ M ■Ml ' 274 Bcope of 0. 83, Insurer's obligation to reinstate. THE LAWS OF INSURANCE. This is in accordance with the rule laid down by the Courts as to marine insurance {(/). It was for long thought that this section applied only to property within the bills of mortality, I ut in 1864 the Lord Chancellor, Westbury (h), held that it was of general and not merely of local application. It was at the same time decided that the power of reinstatement under the Act applied only to houses and buildings, and such fixtures as would pass by the conveyance, and therefore not to tiade fixtures re- movable by the tenant. The right of reinstatement in any case only exists by statute or special contract, and in no way forms part of the common law of insurance («). The whole of the Metropolitan Building Act, except ss. 8s, 86, is repealed by subsequent statutes (k). Under the statute the insurer is authorized and required to reinstate in all cases of suspicion that the assured has been guilty of fraud. Further, on the application of any person inter- ested (I) in the property, the insurer must reinstate, unless the parties interested come to terms. Any one having any right or interest to or in the premises (m) can thus, if he has notice of an insurance, stop the proceeds thereof, and insist on their being applied to the restoration of the premises in respect of which they have been received. It was probably intended by this Act to prevent landlords who had insured from receiving the whole proceeds of the property and then insisting on their rent, or tenants from insuring (g) Insurance Co. v. Fogarty, 19 Wall. (U. S.)644. Huggy. Auqusta Insurance Co., 7 How. (U. S.) 565 ; and see Roux v. Salvador, 7 ninir N. C. 266. *'■ (A) Ex parte Goreley, 4 De G. J. & S. 477, 34 L. J. Bkcy. i, n W K 60, II L. T. N. S. 319, 5 N. K. 22, 10 Jur. N. S. 1085. •''•'•• (i) See Wallace v. Insurance Co., 4 Louis 0. S 289 (k) 7 & 8 Vict. c. 84 ; 18 & 19 Vict. c. 122. (/) Paris V. Gilfuim (1813), Cooper 56, per Grant, M.lt. (»«) Bee Ex parte Goreley. supra. Vernon v. S77iHh, 5 B. & Akl. i. down by the tion applied ility, ] ut in held that it application, le power of y to houses pass by the fixtures re- itatement in tract, and in isurance {i). Act, except ;e8 (h). lorized and 3n that the rson inter- it reinstate, . Any one remises {m) ;e, stop the applied to t of which y intended id insured •operty and •m insuring igg V. Augusta Hidor, 3 Hing. B. & Akl. I. REINSTATEMENT. 275 the freehold value and by receipt thereof exercising a kind of power of sale of premises in which they had but a limited interest (n). In Baymr v. Preston (o) James, L.J., expressed his opmiou that the effect of this Act was to make the in- surance on the property on behalf of all interested ; and he said that he had never known any question raised as to the interest of the tenant. But in Castellain v Preston (p) Bowen, L. J., emphatically dissents from this view. il the notice to reinstate is not given to the insur- Xo.ice to ance company before the money is paid over, it comes '•^'°'^'**«- too late, and the money cannot be followed by the person giving such notice (q), unless he is a mort- gagee (r). nor can he make any claim on the insurers in such a case. If the insurers are given notice and will not rein- state, the remedy is by rmndamus (s). The remedy is open, not only to a landlord as in the case below but to every person interested. The insurers can reinstate on their own account Ueinstatement independently of quarrels between persons interested '^^'^'"^ ^o"°«- m the property. And our Courts would probably as in Scotland (0, refuse an injunction to restrain the msurers from reinstating in such a case ; for " the duty of the insurance company to see the money so laid out ft"*. (n) ^^e (hsteUain V. Preston, II 0, ^ D iSo c? I T n ii ^^ 87!% wTsw''™'""' '* '^''- "■ 'S' 5° '- ■'■ <"■• »'■ 44 I- T. N. S. (p) 1 1 Q. B. I). 399. (r) Conveyancing Act, i88l. (t) Btstm v. Hoyal Exchange, i C. S. C. (ist series) 175. M 276 i ',fi if I li lutorploader by insurer. InsuriT not bound to pHj- landlord wlio reinstates. Condition in policy as to reinstating. THE LAWS OF INSURANCK. is twofold — first, in the interest of the public to prevent fraud ; and secondly, in their own interest, because no more ought to be laid out than was sufficient to erect buildings of the former character and description " (u). It was held that the insurance company could inter- plead in a case where the landlord brought an action against them on the policy, and the tenant required them to reinstate (.«). A landlord cannot, under 14 (leo. III. c. 78, s. 83, rebuild his houses and then require the insurance company to pay for them. Nor can a tenant who has covenanted to insure, and has mortgaged his interest, rebuild and then claim the policy-moneys in reduction of the cost of rebuilding as against such mortgagee (//). Notwithstanding the Act, tire policies usually, if not invariably, contain a condition as to reinstatement, giving the insurers an option to reinstate if they so think fit. This condition, as usually drawn, is not, we think, merely declaratory of the power possessed by the insurers, under s. 83, to reinstate under circumstances of suspicion, but enlarges their power, and enables them to reinstate when in their discretion they think proper. The reservation of this option is as old as the case of Sailers Company v. Badcock (,:). When and bow • If the msurcrs do not rebuild within a leuh insurer must ,._ „, . .„ . ,, . , . reinstate. time atter signitymg their election to reinstate, ' may be sued on the policy (a). If the insurer undertakes to reinstate, he must either make the new buildings as good as the old, or {u) Simpson v. Scottish Union, i H. & M. 6i8, ^3 [i. J. Cb. ^2q. S L T . S. 112, II W. K. 459. (x) Parix V. Gilham, Cooper ('li. Ca. (1813) 56. (y) Simpson v. Scottish Union, nhi snpra. Gordon v. Ingram, 23 h. T. Ch. 478. {z) 2 Atkyns 554. [a) Home Mutual v. Garfiihl, 14 Am. ilep. 27, 60 Illinois 124. Lc to prevent because no iJiit to erect iption " (u). could inter- it an action .nt required • 78, s. 83, ! insurance mt who has lis interest, n recUictiou •rtgagee (//). lally, if not nstatenient, if they so 1, is not, we ssed by the 'cumstances lables them link proper, the case of leuh istate, ' ■ , he must the old, or !h. 329, S L. T. ngram, 23 Fi. .T. \oU 124. REINSTATEMENT. 27 7 expend all the policy-moneys in a proper manner on the rebuilding (6). If he fails in this, he is liable to an action by the assured for the defective quality of the work, and must compensate him for it, but not to an injunction restraining him from rebuilding im- properly (c). Where a fire policy contains a clause that the com- li.instatement pany may reinstate damaged or destroyed property, p^'^'tj^/^,*"" the company may, if the property is destroyed, replace *°."* ^''•'"^ the things by others which are as good. If the goods bt' rfpi^ed^f. insured are not destroyed, but only damaged, the com- """" '"'"• pany may restore tliem to the place and condition they were in before tlie fire, and if the clause says nothing about locality, and the things insured cannot be put back where they were before the fire, the assured may require the company to reinstate within a reasonable distance of the former locality (d). In AkJiorn v. Scwilc (e), a case in which the pro- visions of the Building Act made it impossible to rebuild the house as it was before the fire (/), it was held that the company might be sued for compensa- tion for the injury sustained by reason of the inferior value of the premises erected by the company. In that case, the Vice-Chancellor said: "The insurance company acted under a mistake when, instead of paying the sum insured, they elected to rebuild the premises! They could not place their property in the same situation insurers must as that in which it was before the fire. The Buildino- p"* P''*'P®'"'y Act prevented them domg so. In truth, therefore, they or pay. I 1 i 1 i i 1 1 (l>) I'urherx. Lin/le, 75 Mass. (9 Gray) 152. Cf. Insurance Co. v. Hope, 58 lllmoiH 75, 1 1 Am. Kep. 48, and (in Scotland) Sutherland v. iSun Jure, 24 Scot. Jur. 440, 14 (,'. S. C. (2nd series) 775. (<;) Home Inmrance v. Thompmv, i U. C. (Err. & App.) 247. (d) Andemon v. Commen'nd Union Assurance, 55 L. J. Q. B. 146, 34 W. li 189, 2 Times L. 11. 191. A'. S. W. Bank v. Itoyal Ins. Co., 2 N. Z. (Sup. Ct.) 337. {e) 4 J,. .F. (). S. Ch. 47. Reported also 6 Moore C. P. 202 note. (/) See also Brown v. B<>;j>,', 1 E. & E. 853, 33 L. T. 134, 7 W 11 479, 28 L. J. y. U. 275, 5 .lur. N. S. 12^5. Hall v. Wri/ J insurance Co., 33 S. Y, 420 See also /L/< ,• v W«.„/M,S2 J}.rb. (N. Y.) 447. Ti,ne.s . J ?: iw'^l^'; Kt'^' Common 406, (t) Alle,/n V. La Commujnie deQueI.ec, 11 l.r. Can. Itei.. 394. (/.) Smah V. Colonial, 6 Victoria i,. U. 200. (/) Beats V. Home Insurance Co., 36 X Y 522 2 &XT19I ^''"^"'''"'"^ ^"'"'^' 55 I^'. .f. Q. B. 146, 34 W. II X89. noney " C'/y). mount to a perly, the ng. They le buildinff )re (i). ire occurs ! company it is coni- 710V0, and •he second I cases of be liable 1 not ex- 2 assured I himself, 1 right so ;h. This ermitted. 3ided (7i). lere is a lant that ding the lOut any "^ond his 425. 10 liydtry. I F. & F. 94- W. i\. 1S9. V. Fo-iffr, REINSTATEMENT. 279 acceptance of the lease, and probably without being put into writing (0), and the landlord would therefore he under an obligation to apply the proceeds of the said policy towards reinstatement. The effect of an election to reinstate is to make a Election to contract to reinstate, and to put the insurer into the "■«'"«'*"»• same position as if he had originally contracted to do so. If reinstating is at the time of election lawful uud possible, but subsequently becomes impossible, the insurers will be liable in (himages as for breach of a contract to reinstate (/>). Acceptance by tiie insurer of an order by the order by assured to pay the loss, if any, to a third person will -'Zlf^Z ,x not affect the right statutory or contractual of the Speisor'' insurer to reinstate, such order operating merely as an assignment of the claims of the assured under the contract (q). But if the insurers once agree to pay, their election Election. to reinstate is gone, and they will not subsequently be allowed to exercise it (r). Where A., an incumbrancer on premises, insured them Subsequent agamst fire, and prior incumbrancers also insured in I'^Z^^'Tr .1 /Y» , , ymiiitii TO lit) ottier ottices, the premises having been burnt the prior p**^ ^'^ '"ss incumbrancers were paid an amount sufficient to re- "utXan'ct^ instate the premises ; before the fire their value was eno.^h L'''' adequate, to satisfy all the incumbrancers, but after the '■°'"^''^i^- tire it was so reduced that A. was left entirely uncovered, and he was adjudged to be entitled to receive from the insurers the full extent of his loss (s). (0) Pollock Contracts 380 {3rd ed.). S tXZ'' ^/"^ {««"»•«"«« Go., above cited, Erie. J., dissenting. {q) Folman v. iW«««/ac). The person insured under the original policy cannot claim any lien on the re-insuring policy, and if the re-insurod company becomes insolvent, the amount of the re-insiiring policy, if paid, must go in with its other assets, and the original policy-holder can only aet a dividend If those available for the purposes of his p'olicy are dehcient {q). ^ ^ A policy of re-insurance is an agreement by way of complete or partial indemnity to the insurer on the original policy (r). It presupposes an insurance effected and the liability of the re-insurer is contingent on the liability of the insurer, as re-insurance is really a contract to shift liability, and its subject is the risk incurred by the re-insured (.s). It is not necessary for a re-insurer to take tlie whole i-isk, or the whole amount at risk. Thus a marine Ao.surcd has no lien on re-iu8uramv policy. V'Lat under- taken by J I'-iusuier. (w) I Enioriifon. par Botilay-I'aty. cb. S. s. 14 383. •^^^' ^ ' ^- '9i> 7 ". 11 137, 5 .Jur. N. S. ('/) Carrhigtoiix. Cum, in- re in I Fin; u N V Sun Ct f. U^ ^ 15 (I H. ])_ ,, ' ^J ■^"'- ^^^V- 4ij. Ozielli V. Bontou Co. (•.) .y,am„' ,S>H>, V. Hon,, 2 N. V. (Coiustock) 235. may be paid ' in case the he American II the absence Ivency of the wthesi, is not urance on a , even inde- or indorsed 3 to the re- it that the aid (2^). olicy cannot and if the amount of ith its other only get a f his policy by way of irer on the insurance contingent ce is really is the risk e the whole a marine Sburance Co., , 5 Jur. N. N. I iiosw) 152. Ii, -f. iiisur- Boston Co. RE-INSURANCE. • ^g^. insurer against all perils of the jea can re- insure against- fire only (t), and keep the rest of the risk on his own shoulders. Where insurers grant two policies on the sanie pro- Proportion perty, the total amount of them being greater than the Pe?;^'ie''^f value of the property insured, and subsequently they <>"« "^ several re-insure on one of such policies only, the amount of the su.cce™e *"^ re-insurer's liability will depend on whether the insurer's ^°''"*^- ])olicies are concurrent or successive (w). If the in-' Muances are concurrent, the re-insurer will have to pay such proportion of the whole loss as is equal to the pro- portion which the re-insurer's policy bears to the whole hum insured. In this case if goods of the value of £i 200 are insured to the amount of ^i 500 by two policies for ii'iooo and ^500 respectively, and the latter policy only is re-insured, the re-insurer will have to pay i;'400. If, however, the insurances are successive, and the' second policy is re-insured, the re-insurer will have to' pay (so far as the sum re-insured suffices) the amount remaining of the loss after the first policy has been fully applied in satisfying it. Kg., if goods of the value of ii"i200 are insured by two policies successively for i^iooo and ;^5oo, and the latter policy only is re- insured, after the appropriation of the policy first applicable, viz., the ^1000 policy, there will only re- main ^200 to be paid by the re-insurer in respect of the ;6'50o policy. A re-insurance subject to all clauses and conditions Effect of in the original policy and to pay as may be paid thereon, Jay ''''"' " *"' W If*' o.ttaclies when the original policy attaches {xl such a policy payment would seem at first sight a condition precedent to the right of suit thereon. But the true construction has been held in America to be, that it is meant to make the re-insurer's liability co- fts may bV III P^-*^'-" CI fmperial Mtirtiic. v. Fire fnsuruHC.e ( Corporation , ^ (' I' T. y. S. 166, 24 W. 1;. 6{Jo. 4'^ •\.y. \\ 424. 40 Ii. 1 . .N. ,->,. 100, 24 {,:) Union Miuiitt Co. \. Miirtiii, 35 L. .]. { . 1' isi {x) Joyce V. Iteulm Co., L. K. 7 Q. H. 580. 1). 166. ^^4 TIIK LAWS OF INSURANCE. extensive with the liability, and not with the ability to pay, of the insurers, and that the re-insuring company IS to have the benefit of any deduction by reason of other insui-anco or salvage that the original company would have (y). ^ in England, wluae there was a re-insurance of half the risk with this clause, " In case the company, for any reason, including their own insolvency, do not pay the whole or any pirt of any claim, the underwriters shall only pay in the same proportion," and tlie company went into voluntary liquidation and recon- structcMl with the approval of the Court, under a scheme whereby the assets and liabilities of the old company were to be taken over by the new, and the liquidators paid ^ 4 4,000 of the assets of the old company to tho new one, and directed the payment thereout of certain creditors including the assured, it was held as a question of fact that this was a payment by the old company, and tliat the re-insurers were liable to the insurers foi- tiieii- half of the sum assured {z). !m7'"f",;i f condition to pay pro raid at and in the same tinie and manner as the re-insured, cannot amount to a pro- vision that if tlie re-insured is insolvent the re-insurer is only to pay the amount of the dividend on the particular insurance available from the assets of the re- insured. The condition only means that the re-insurer shall only pay at and in the same time and manner as the re-insured shall pay or be bound to pay, and tliat the re-insurcr shall have all the advantages of the tiuie and manner of i)ayment in the lirst policy (^0- insCr"^ ''^' ^^^"^ Praciice as to re-insurance seems to be to insert enables i.iin (o ''^ clause in the policy of re-insurance, that if the re- rSurer"'" '"•'^"r"-'*^ pays- I'is SO doing shall be evidence sullicieiit (//> Ex pane XoruHHHl, 3 Bissell (C. Ct. IT. 8.) 504, ciS t) AW«» V. Marten, , , Tin.es I. 1{. 256 (and C A ) 4S0. (n) UislMu V. ^urth-WeHtrrn Inmirance Co.. 5 Bissell ((' Ct II HI ^,0. tusnnim; ( o. v. f,>,,n;,m-r Co., 43 Am. Itep. 413. ' " " E. RE-INSURANGE. 285 h the ability to juring company n by reason of iginal company surancfc of lialf e company, for icy, do not pay e underwriters tion," and tlie ion and recon- under a schemo e old company the liquidatdrs iompany to tho eout of certain d as a question 3 old company, 3 the insurers I the same time lount to a pro- the re-insurer ndend on the 3seto of the re- the re-i usurer ind manner as pay, and that ges of the time to be to insert lat if the ro- ence sullicient 5j8. A.) 480. ssell (('. Ct, II. H) •3- to enable hira to recover from his re-insurer (/>). And it would seem that French re-insnrers inserted a clause French rule. authorizing the original insurers to make hond fiih a voluntary settlement and adjustment to be binding on the re-insurers (c). The re-insured will, it seems, be entitled to recover Re-insurer'K from the re-insurer his costs of defending any action SoiTby" brought by the assured imder the original policy, if the *''8'""""^- re-insurer does not on notice appear and defend such suit (rf). He may either wait until judgment or proceed at ouce against tho re-insurer ; and payment is not in America a condition precedent to his right of action {e). But where the re-insured gave the re-insurer notice that he meant to pay, to which the re-insurer gave no response, it was held that the re-insurer could still raise all the defences open to the original insurer in an action against him by the assured ( /"). The re-insured must of course in some way prove Proofs. the character and extent of his loss {g), and must fulfil Conditions, all the conditions of his re-insurance (A). lUu: it has been held in Canada that he may to some extent waive the conditions contained in the original policy without defeating his recourse to his re-insurer (i). The re-assured is entitled, besides the amount paid ('>) So Slated in National Marl up \. Protector ''>.. 5 Victoria \,. W. 2z(). 229. {r) I'otliier cited in New York Slate Co., i Story l!ep, (U. S.) 458. ((/) Hastie v. I)e Peyitter, 3 ('nines (N. Y.) 190. Henri/ liljle Barrel Co. V. Employers' fAa'hUUif Co. (1884), Q. I?. D. New torh Central v. Protection Co., 20 Barb. (Sf. Y.) 468. {e) Jlone v. Mutual Safety Co., 3 N. Y. Sup. (Jt. (i Sandfurd) 137. (,/") National Marine v. Halfey, 5 Victoria \i. 11. 226. New Vbrk State V. Protector himrance Co., i Story Uep. (IJ. y.)458. See M'Ketizie V. Whitworth, I Ex. D. 36, 33 L. T. N. S. 655, 24 W. R. 287. 45 L. J. Kx. 233. Joyce v, liealm Co., \j. R. 7 Q. B. 580. (gf) ) onker.f Fire Co. v. Boffman Fire Co., 6 llcbertson (Fiouis.) 316. (h) Xeir York Cf.vtral v. National Proffcfior. 10 Barb. {N. Y.) 468. ((') Fire Association v. Canada Co., 2 Ontario 481. il|,L I III I m ( w * w I i l»? IIIK 286 Ke-iiisured TJIK LAWS OF INSURANCE. . Mt'iun'iig of contiibiitioii clau8(> ill re-intijiniii(;(. Jiolicy. ^L ''"" *Y/'»f .^««« «»«tained by his assured, to bo co«t«. reasonably and necessarily incurred by him to proter- himself and entitle him to recover over against the re insurer But if in a clear case of loss he defends without reason, he will not get his costs (/•). If a contract of re-insurance contains a contributioi clause, such clause will, in the absence of spe words, be taken to refer to a case of double relsTr ance only, and a custom for re-insurers to pay onlv «uch proportion of the loss as the amount re-insured bears to the original policy will not be admit ed The c^tom suggested in the case below cited (0 wa that If partial re-insurance were effected, the usurer should only pay in full in case of a total loss, and n a partial loss should only pay proportionally in the way n which insurers pay under an average clause. I^ he contention in tlie particular case had succeeded the re-msurer would have made what was a contribu-' tion c ause work as an average clause, and have penal- ^ml """""' '" "^^ ^^'^^^^"^" ^^- -^^^^ "s SSv;,""^* ^ .^ ^^^'^dition that the re-insured should retain a cer- Should ,.e,«in 2 «7 equal to the amount re-insured on other parts of the same property only means that they are to foia)ear from re-insuring so as to reduce theifow risk below the stipulated amount, not that they mus guarantee the continuance of existing insurance! S If the insured refuse to renew a policy of which the re-.nsured knows nothing till after iire' the cond t on IS not violated. To construe it otherwise would be to inake the re-iasured go on insuring against the will of tJie assured (m). othnr insurances (Ap?) 371."'" '"""""" ''"'"'"'"* '■ ■''''"•""■■•• '"""'••» ''■>■, = I'.r. I assured, to bo its and expenses him to protect; against the re- OSS he defends ! a contributioji ice of specific ouble re-insur- s to pay only unt re-insured be admitted. cited (I) was 2d, the insurer loss, and in a ly in the way e clause. If ad succeeded, IS a contribii- i have penal- whole of his retain a cer- 'ed on other ihat they are 36 their own ■t they must irances. So •f which the le condition would be to t the will of V- (U. S.) 458. 5- Ser. Uruod 'ce (h., 2 V. ('. BE-INSUKANCE. 287 Where the re-insurance is on part of the original risk, AVhere 1 (,»"".* iiorw, ivuere tne amount retamed cannot drop without the re-insur- •"'-'"surance ance dropping too, So that the original insurers must r£,''tb»r"'*' retain the part stipulated if they wish to keep up the caSiot'Iirop re-insurance. without re-insurance But where the amount to be retained is a separate ^'''^^'''^' risk, though involved in the same peril, the word retain will not be construed as a guarantee that the assured will keep up all his existing policies (n). The re-insured must show as good faith as if he were Equal good seekmg insurance, and not merely re-insurance (0) as !*'''' '•equired the latter is not a contract of suretyship, but a form of ?« from tlie ordinary contract of insurance whereby a person '"'"'"''^" who has guaranteed the safety of another's goods may liave his own liability under the first guarantee covered by a second. Consequently, if information possessed by the re Con.eai™,.ut msured and material to the risk be not communicated to the re-insurer, the policy of re-insurance will be void. In some cases, therefore, a heavier obligation to dis- Re-insured close may fall upon the person seeking re-assurance ""*'' ^'***' *" than on his assured. Besides the information given i^^ knows of by the latter, the former may, ai the time when granting characfer, the original policy, or subsequently, learn material facts as to the risk, and these he must disclose on seeking re- insurance. Thus, though the original assured would not be bound to give himself a bad character to his in- surers, such insurers would, if seeking re-insurance, be bound to disclose what they knew of him (p), whether learnt before or after they granted the original policy. When re-insurance is made it is not necessary to whetj.er disclose the fact that the policy is by way of re-insur- '^'^'"■•^' "^"^''^'^ ^..«« „^1 1- i?. .^ • , , -."^ be stated to b€( It .seems to be >^ re-insurance. ance unless such fact is material (0). (n) Canada Imuraftce ( b. v. Norther a Insurance Co., 2 U. ( .' f \nn \ :!7 7 Mw York Bowery v. New York Fire, 17 Wend. (N. Y.) \(q ip) Ibid Sun Mutual v. Ocean Co., 107 U. S. (17 Otto) Ai {(J) M-Kenziey. W/ulawtk, zXx. 1). ^6. 45 I.. J. Fx-. 2,,^,, J, T 055, 24 W. K 2JJ7. " '"' •'•' ' ■ \, f.r resist 'f • I; 1 ( ?•«. i *l #■■11 '1* !MNh* «! I ,l|f «• 288 THE LAWS OF INSUKANCE. usual to declare that re-insurauce is sought if such be the fact, but there is no custom in mariue insurance to that effect ; for marine re-insurance was illegal, with certain exceptions, till 1864 (r). jiisrepresenta. Misrepresentation by the re-insured will avoid the re-insured as to policy. Thus where One company re-insured part of its nsk retained • i, -..n . .• ^, , ., . ^ by him. ^isk on a lite, stating that another portion would be retained, but parted with the rest before the first re- insurance was completed, the contract was avoided (s). But 1 vations as to the nature of the risk will not help a ; Loiirer who has formed his own judgment of the nature of the risk (t). Notice to be The re-lnsurcd must also give notice, if required of given by <.! • .1 . x •■, jl re-insured of Other insurance on the property if he knows of it (u). {"nsurances. ^^ *'^® ^^^® ^^^^^ ^^^^^ ^^^ insurance was effected on an ordinary policy with re-insure substituted for insure. SiniureVm*''- ^^ would scetn that if the re-insurer's policy stipu- recover witiiiu lates that the re-assured may recover thereon within a aFteHofs!''"° ^'^rtain time after the loss, such time will run from the injury to the property, and not from payment under the original policy by the re-insured (x). t^oTumishinl ^? ^^^® insurance policy contains a condition that the proof satisfied parties assured shall furnish certain specific proofs as mutiug^proofs ^° ^^^^^^ character, circumstances, and loss, such con- Zlnret^'"'^ ^^^^^^ ^^ Complied with, in contemplation of law, if tiie party originally insured furnishes such proof to his immediate insurers, and they transmit the same to their re-insurers (y). (r) 19 Geo, II. c. 37, .s. 4. (s) Foster V. iMentor Life, 3 E. & B. 48, 23 L. J. Q.B. 145 22 I T ^°^w ^j;"'^'^- ^«';''W 33 i^- •/; Ch. 521, 4Giff. 48s, 10 L. T. N. S. 215! 72 W. h. 678. LouLiiuiia Mutual Firr Co. v. New Orleam Co 13 Louis. Ann. 246. But see Prudential Co. v. Etna Co. 28 Blatch (U. S. Circ. Ct.) 223. (t) Canada Insurance Co. v. Northern, 2 U. ('. (App.) 373 (u) New Yorh Bowery \. New York Fire, 17 Wend (N. Y.) (.t) Provincial Co. v. Etna Co., 16 U. C. (Q. B.) 145 )3S9- iy) New Yoric Bower 1/ v. X^w York !.., Ex parte Norwood, 3 Bis'sell (C. Ct. U. S.) 504. end (N. Y.) 359. i lit if such be iiie insurance s illegal, with ill avoid the -ed part of its on would be the first re- 3 avoided (s). i risk will not judgment of required, of •vs of it (u). effected on d for insure. policy stipu- !on within a un from the ment under ion that the ic proofs as , such con- f law, if the )roof to his ime to their >. I4S. 22 L. T. '. T.N. S.215. Orleans Co.. Co. 28 Blatch. )373- '■ Y.) 359- I (N. Y.) 359. ( 289 ) CHAPTEE XIV. OBLIGATION OF TENANTS TO INSURE. A TENANT Tor life or a tenant in tail, if the settle- Tenant for ment contains no provision or obligation as to the ''^^°'' '? **" n , ., ,. ° "^ need not repair or insurance of buildings on the settled estates, insure, is not bound to insure or to reinstate in case of fire (a). And if such a person insures, paying the premiums when entitled out of his own pocket, he has been held entitled to the *° P°^'°y- policy-moneys as against the remainderman (b). This was first decided in the case of Seymoitr v. Vernon, Tenant in tail, the facts of which were that some stables were burnt i'«"iaiuder- down, and it was thought needless and inexpedient to Pro«eeds of rebuild them. The Court had previously ordered the ^°"''"" insurances to be kept up by a receiver for the benefit of all parties who, in the result of the decision of the Uourt in the administration suit, should be found entitled. And Kindersley, V.C, held that, inasmuch -^i the pre- miums had been paid out of the income of the infant tenant in tail, the policy-moneys were his. This case ^vas followed and approved by Chitty, J., in Warwicher \. Brctnall (c), where a mill comprised within a strict settlement under a will had been insured on account of an infant tenant in tail out of the rents of the estate, and had been burnt down. The proceeds of the poHcy were insufficient for rebuilding, r.nd it was not thought for the benefit of any one interested in the I j ' !,■ '"—■IT— StZSMi IP ! ! («) liayner v. Preston, 18 Cli. D. i, 50 L. .J. Ch. 472, 44 L T xN. S. 487, 29 W. K. 547. 6 Anne. c. 58 (31 li.iff.) ; 14 Geo. III. c. 78! s. 83. (b) Seymour v. Vernon, 21 L. J. Ch. 433. 16 Jur. iSg. (e) 23 Ch. D. 1S8 ; see also ^i W. li. 520. T 290 1. i ilw H'anoicker v /iretnall discussed. THE LAWS OF INSURANCE, settled estates that the mill should be rebuilt. The learned judge held that the policy-moneys belonged to the infant tenant in tail as part of his personal estate and were not to be treated as part of the real property comprised in the settlement. With the greatest respect and deference for those learned judges, it seems that, if their decisions are correct, a limited owner may insure settled property for its full value, and in case of lire appropriate to his own use, not only so much of the insurance-monev as IS equivalent to the value of his own limited in^- terest, but also the balance which represents the value of the interests in remainder. This appears to be opposed to the view expressed by Lord Justice Bowen {d), who says: "A person with a limited in- terest may insure either for himself, to cover his own interest only, or, if he so mean at the time, he may insure so as to cover not only his own limited interest, but the interest of all others who are interested in the property. It is a question of fact what is his intention when he makes the policy. But he can only hold for so much as he intended to insure There is the case of a mortgagee : if he has got the' legal ownership he is entitled to insure for the whole, but even if he IS not entitled to the legal ownership, he is entitled to m^-arepnmd facie for all. If he intends to cover only his own mortgage, and is only insuring his interest, he can only retain the amount in which he has been in- demnified. If he has intended to cover other persons besides himself, he can hold the surplus for those whom he has intended to cover. But if he intended to cover himself alone, and if his interest is limited, he cannot hold anything beyond the amount of the loss caused to his own particular interest." If the decisions in Seymour v. Vernon and Wanoiclc^r v. Bretnall are x2 S^lftl 5^r""' " ^' ^- ^- ^^°' ^' ^- ^' ^- ^- 376, 49 L.T. rebuilt. The 3 belonged to rsonal estate, real property ice for those iecisions are 'led property .^propriate to rance-monev I limited in- )resents the Chis appears Lord Justice . limited in- ver his own me, he may ted interest, 3sted in the lis intention nly hold for Chere is the I ownership, even if he 1 entitled to i cover only interest, he as been in- her persons those whom intended to limited, he of the loss 16 decisions 3retnall are J. 376, 49 LT. 291 OBLIGATION OF TENANTS TO INSURE. good low, it is submitted that one class of limited owners— viz., tl.e tenant in tail— must be excepted from what the Lord Justice says ; and a tenant in tail, insuring for all persons interested, may receive and retain, not only so much of the insurance-money as represents the value of his own interest, but also the surplus which represents, and is really recovered in respect of, the interests of other parties. Even if the great authority of the learned Lord Justice did not seem to shake the decisions in Seymour v. Vernon and Wanvichcr v. Bretnall, the considerations we have mentioned would make these decisions appear to us far from convincing or conclusive. There may be difficulty in estimating the proportion of the insur- ance-money payable to the tenant in tail ; but why should not the whole insurance-money be treated as realty, and come under the settlement in lieu of the property destroyed ? This would avoid all the diffi- culty of apportioning, and protect the rights of all parties. Mr. Davidson {c) says " that, in the absence of opinion of special contract or obligation, the tenant for life is not ^^^'^ ^a'^^^^son. bound to repair or rebuild in case of fire, and by parity of reasoning is not bound to insure, yet it seems that if he insured he would be bound to lay out the money in rebuilding." Tenants for years are not at Common Law bound to Tenants for msure. Their legal duty, in the absence of special y^*""'^ °°^ agreement, is merely to use the demised premises in a inXe.*" proper and tenantable manner, and includes no obli<^a- tion to reinstate in case of fire (/). It is true that the statute of Gloucester seems to have been construed so as to make Uiem liable in case of a fire, if accidental, "its: ■••atj %:2Kai (6) Precendents Conv. vol. 3, pt. i (3rd ed.) p. 290 note (e). ioili% ^' ' ^ '^' ^^'"°*' ^"^- S"S^«° Handy Book, Si " I 29: THE LAWS OF INSUUANCE. Tenantij not liable for accideutul lire. as for permissive waste if negligently caused, or for voluntary waste (//). IJut by 14 Geo. III. c. 78, s. 86 (A), in the absence of any contract or agreement with the landlord, they are exempted from all liability for accidental fire.s "occurring in tlieir houses, chambers, stables, barns, or estates," " any law, usage, or custom to the contrary notwithstanding." The statute is mainly local, but this and some other sections are general (/). The history of the section well illustrates the method of legislation in this country. The exemption was first granted as to houses and chambers only in 1708, by 6 Anne, c. 58 (6, 7, 8) (Ituffhead, c. 31), for a limited period, but reviveci and made perpetua in 17 10 by 10 Anne, c. 24, s. i (/.). In 1772 it was repealed and re-enacted in the 12 Geo. III. c. 7S> s. 46, a Metropolitan Building Act. In 1774 it was repealed and re-enacted in its presen,; form (/), except the provision as to treble costs, which has been repealed by the Statute Law Eevision Act, 1 86 1, while the rest of 14 Geo. III. c. 78, was repealed by 28 & 29 Vict c. 90, s. 34 (a :\Ietropolitan Fire Brigade Act), which s. 34 was in its turn repealed by the Statute Law Eevision Act of 1875 (38 & 39 Vict. c. 66). Such repeal does not, however, revive the repealed portions of 14 Geo. Ill, c. 78 (m). T..nanfs Though now clearly not liable, except by contract, flre^Sugl ^^^ accidental fire, a tenant for years is liable c,e delicto his negligence, at Common Law for damage done by a fire caused l)y Jlistcii-y of s, 83. {(,1) 6 Ed. J. (A.i). 1278) ; see Davidson, I.e., Humilloii v. Memlra, 2 iJurr. 121 1 (1761), pel- J.ord Mansfield. Turber':il v . AV«»ijj, i Salk. i j. {/>) This Act is wholly reptaled, except this section and s. 83. (0 FilUtcr V. Phiijpm-d (1847), ii Q. B. 347, per Dcnmaii, C. .1 luclmrdH \. Eusto, 15 M & W. 244. (/.•) C. 14 (Kufthead). (/) Piatt on Covenants 188. (n») See 13 & 14 Vict. c. 21, s. 5. caused, or for in the absence landlord, they iccidental fire.s stables, barns, the contrary [id some other of the section n this country. houses and 58 (6, 7. 8) .t reviveci and 4. s- I (^c). lacted in the Building Act. in its preseni; e costs, which Eevision Act, , was repealed 'opolitan Fire turn repealed ^75 (38 & 39 wever, revive '> by contract, ible ex delicto fire caused l)y iho)i V. Mendra, Stump, I Salk. i j. md 8. 83. jr Denmaii, ('. J in OULIGATION OF TENANTS TO INSURE. 293 liis own negligence, or that of his servants, to the property of his neighbours or his landlord (/i), and such liability is in no way aflected, lessened, or varied by s. 86 of 14 (;eo. III. c. 78. In virtue of this liability for negligence he has an jiay iusmo surable interest in the premises occupied by him, and ^'^^1°^^,*^'° he may lawfully insure against his own negligence (0). uegiigeuco. Indeed, an ordinary fire policy protects against the Protectiou of assured's own or his servant's negligence (except '^g^J"'*''^ perhaps the very grossest), or accidents, or arson by others, wherein the assured has no complicity (p). Landlord and tenant may contract .nat the latter Tenant's shall be liable to the former in case the deniised l!"^!";' k^„„ property shall oe destroyed by fire (J). created. A tenant who covenants or agrees to repair generally Tenant under makes himself an insurer, and, if the demised premises covenant to 1.1 . , . , . ^ repair bound are burnt dovi^n within his term, will be bound to rein- to reinstate, state, and is liable in damages if he does not do so. It does not matter whether the fire originated in or spread to the demised premises, nor how it was caused (r). A covenant by the tenant to pay any extra premiums insurance, exacted in consequence of work done or business carried I'^^idiord and II- , , , , . tenant. on by him, seems to apply to the ordinary trade of the tenant, and not to special acts increasing the risk, such as setting up steam-engines, &c. (s). (n) See FilUter v. Phippu, •!, 11 Q. B. 347. See Vauylmn v. Menlone, 3 liiug. N. C. 46S. TaiberM \. titamp, i Salk. 13. These and other cases bearing on this subject are ably and exhauHtively discussed in Fnrlomj v. Carroll, 7 Ontario (App.) 145, and in Billiard v. Thurston, 8 Ontf.rio (App.) 514. (o) Dohso7i V. ISothehy, i Moo. & Ma!. 90, 93, per Tenterden, C.J. (p) Midland Insurance Co. v. Smith, 6 Q. B. D. 561, 50 h. J. Q. B. 329, 45 L. T. N. S. 411, 29 W. l\. 850. [q) 14 Goo. III. c. 78, 8. 8'5. (?•) Bullock V. jDomitt (1796), 6 T. 11. 650. Pym v. Blackburn, 3 Ves, •Tun. 34. Chesterfield v. Bolton, 2 Com.627. •^'^5'% v. Atkinson, 4 Camp. 275. Loader v. Kern]), 2 C. & P. 375. («) Duke of Hamilton's Trustees v. Fleming, 9 C. S. C. (3rd series) 329, and also Fo7-bes v. Border Counties, 11 C. S. C. (3rd series) 278. Piatt \. Kerry, 7 f.r. C.an. Jur. 80. 1 r "Sis: nets—. ""•Car 294 THE LAWH Ol'- INSUltANCE. Lii Uf7'2tl°L . ^ ^'^^^^^^ f«^ l'f«' witl. H condition against commit- Liabnfcto ^"'^' ^'^^^''' """^ ^"^ k^epin- the premises in good and rebuild of tenantablo repair, is under the same liability as a tenant limited owner, bound by an absolute repairing covenant, and the remanidernian can make him rebuild. He cannot do so, however, unless such liability is imposed on tlie devisee by tlio settlement under which he holds (t). an rum.''^" ^^'^^ *^'"'^^" '" bankruptcy of a tenant is in the same Ti-u8teeiu position as the tenant, save for his power of disclaiming banicruptcy. ^ burdcnsome tenancy (i>). Insurable interest of tenant under covenant to repair. Position of insurers wher landlord and tenant inaui'o separately. Effect of covenant to repair and to insure fixed sum, The tenant who has covenanted " to repair and keep m repair" has an insurable interest in the premises sufficient to support a policy in his own name for tlie full value thereof. Such insurance is in effect a re-in- ^ surance of his own liability. Consequently if the land- ° lord insured too, the insurers would not be entitled to demand contribution inter se; but the insurer of the landlord would be entitled either to subrogation to the landlord's rights on his covenant against the tenant, or to return of the policy-money if the landlord had enforced these rights (x). The covenant to repair makes the tenant an insurer to the full value of the premises even if he also covenants to insure for a fixed sum. The latter covenant is a collateral security to the landlord, lessening but not limiting the tenant's liability, as he remains absolutely liable to reinstate on his covenant to repair (y). It is consequently advisable to exclude from the How liability as insurer is i. j. " • ," --— . ..**v^ excluded. covenant to repair the case of loss or damage by fire. (<) Ee Skingley, liktngley, 3 M'N. & G. 221, per Truro, C. Greqn v. Coates 33, 2 .Tur. K S. 964, per Komilly, M.R„ 4 W. II. 73 c. ' 23 Beav, (u) 46 & 47 Vict, c, S2,'8."'s5. yu) 40 c. 47 Vict. C, 52, 8. 55. 42^£! t!Ts. ^9^^'"' ^ ^' ^^' ^° ^' ^- ^- ^- 33' 29 W. K, 66, Ay)Dwhy\Atldn8on, 4 Camp. 278 (1815), per Ellenborouch OJ PenmM v. Sarlovne, u Q, B. 368,17 L. J.Q. B.^94, ,2 Tmisl :ainst commit- i ill good and ity as a tenant ant, and the He cannot do posed on the holds (t). is in the same of disclaiming; )air and keep the premises name for the ift'ect a re-in- y if the laud- le entitled to isurer of the ,'ation to the lie tenant, or andlord had t an insurer so covenants venant is a ing but not ;s absolutely (2/). e from the lage by fire. >-ei/ff V. Coates, ■735. 5, 29 W. K. 66. inborough, O.J. rur. 159. OULIGATION OF TKNANTS TO INSURE. 295 \\y so doing, the tenant removes from himself all liability as an insurer, and limits his liability to the (jase of breach of his covenant (if any) to insure («). A covenant to insure is not personal, but a covenant Covenant to to do something in respect to the property demised, ivftfaVnT" and is available to assignees (a) of the reversion against the tenant or his assignees (h). The landlord is never in England an insurer. He Landlord not is not bound at Common Law to rebuild in case of fire ; Laid'not in fact, he cannot enter upon the demised premises '^"".'^ *° durmg the term except for breaches of the terms of the lease, and, if he went in to rebuild, would be a mere trespasser. If the landlord insures himself against any risk not Tenant cannot thrown on the tenant by the contract, and a fire occurs, S whiT'"^' the tenant has no equity to compel him to apply the insures to proceeds of the insurance in repair of the damage (c). ''^''"^''" Such insurance is a precaution for the landlord's own benefit. He alone is entitled to benefit by it, and there is no privity between the tenant and the insurer. If the landlord has covenanted to repair the part Tenant cannot burnt down, the tenant can only sue the landlord on j"^!^* ^^ '*'"*" , . *' lord rein- that covenant, and must go on paying his rent in such stating out of a case even if the premises are burnt down (d). But foUoyf^ °^ ^^ though it is doubtful if he has the power to attach the policy-moneys when they have once reached the land- lord's hands, and require them to be employed to repair (3) IVeigall v. Waters, 6 T, K. 488. See the covenanta in Darrell v. Tibbits, cited supra, p. 294. («) Bullock V. Domitt, 6 T. R. 650. 44 & 45 Vict. c. 41, s. 10. (b) Douglas w.Muriiliy (1858), 16 U.C. (Q. 13.) u6, Vernonv. Smith, 5 B. & Aid. I. Doe v. Oladwhi, 6 Q. B. 953. I'latt en Covenants 183, 186-189. (c) Leeds v. Cheetham (1827), per Leach, M.Il., i Sim. 146, ISO, SO L. J. 0. S. Ch. 105. Lofft V. Denis (1859), 28 L. J. Q. B. 168. {d) Leeds v. Cheetham, i Sim. 146. '•"•^K 1 296 mi V'. i I .ll,f,i Tenant can require insurer to reinstate. The law of Scotland. Covenant to insure is a usual covenant. Form of covenant to insure. THE LAWS OF INSURANCE. the damage in respect of which they were paid, he can, as a person interested in the premises, give notice to the insurer (c) to employ them towards reinstating sucli damage, and in tliat way obtain what he seeks. "The law of Scotland is much more favourable to a tenant than the law of England. In England it appears to be tlie rule that even if the premises let should be wholly destroyed by fire, the tenant must contmue to pay rent for the term of his lease. In Scotland a much more reasonable and equitable rule prevails. If the premises let have been so destroyed or severely damaged that they have become no longer fit for occupation for the purpose for which they were let, the tenant, being deprived by damnum fatale of the subject for which he agreed to pay rent, is free from the obligation to do so. This equitable rule, however, IS subject to conditions, one of which is that the part destroyed must be essential " (/). A covenant to insure is now a usual covenant in a lease, which a landlord is entitled to have inserted in pursuance of an agreement to take a lease with the usual covenants. And the lessee cannot demand to have it qualified by an exemption from the rent if the house is destroyed {(j). A covenant to insure does not make the tenant an insurer, but obliges him to find security of a certain kind to protect the landlord against the risk of tire. An insurance under it is of the landlord's interest. The covenant to insure is not void for uncertainty where neither the words against fire nor the name of the office is mentioned (h). It is usual either to name (e) 14 Geo. III. c. 78, s, 83. {ft) Sharpy V. MUligan, 23 Eeav. 419. (h) Doe V. Shei&in, 3 Camp. 134, OBLIGATION OF TENANTS TO INSURE. 297 paid, he can, ;ive notice to instating sucli leeks. favourable to n England it premises let tenant must lis lease. In quitablc rule so destroyed ne no longer cli they were icm fatale of i, is free from iile, however, /hat the part )venant in a ) inserted in ise with the I; demand to 1 rent if the e tenant an of a certain risk of tire. iterest. uncertainty he name of ler to name mimj, 8 U. S. C, particular insurers or to insert the words " some suffi- cient office" (i.e., solvent insurers), or "some office to be approved by the lessor." But the most satisfactory method is for the lessor to insure and charge the pre- miums as an additional rent. This method, if with the addition of a covenant by him to spend the pro- ceeds in reinstatement, leaves nothing to be desired. Damages for breach of a covenant to repair if a fire Damages for has happened are measured by the cost of rebuilding (^). covenant to repair. Damages for breach of a covenant to insure would Breach of be the amount of damage done by the fire not exceed- 1°^^!"^ *'" ing the specific amount, if any, for which the insurance was to be made (k). Where the covenant is to insure sufficiently, and it is broken, and a fire happens, the measure of damage is the value of the buildings, &c., that being the limit of a sufficient insurance. Damages must not be cal- culated so as to give new for old. It is no answer to an action for breach that the landlord might have insured and charged the premium as an additional rent, since the landlord is entitled to rely on the covenant and leave the tenant to keep the buildings insured at his peril : but if the tenant breaks his covenant, the landlord may pay the premium, and in such a case, if a loss occurs, the measure of damage for the breach will be merely the amount of premiums so paid (V). Where no loss has occurred, the measure of damages is what it would cost the landlord to put himself into the position in which he would have been but for the I '. 1 4 \l: I i (i) Mayne on Damages 241 (3rd ed.). {k) Douglas \. Murphy, i6 U. C. (Q. B.) 113. II Ex. 15. (I) Douglas v. Murphj, 16 U. (J. (Q. B.) 116. Yates V. Dunster 11 si, ii iiri an* WW mm niiiti ■i|»i»i *W't|i •itMik 298 Relief for breach of covenant to insure. What breacli works forfeiture. Forfeiture not cured by ante-dating receipt. Breach of cove' nant to insure, when not enforceable. THE LAWS OF INSURANCE. omission of the defendant (m), i.e., the premium paid to keep up an existing policy, or obtain a fresh one or take out one if none has been e.Tected (/i). The Courts of Equity used to hold that breach of a covenant to insure was wilful, and one for which com- pensation could not be calculated (0), and therefore would not relieve from forfeiture so incurred. Hence it became needful to pass 22 & 23 Vict. c. 35, ss. 4-9 No forfeiture, of course, was worked thereby, unless so stipulated; and without a forfeiture clause the remedy for the breach was merely an action for damages. The breach must be substantial to work a forfeiture Thus an insurance in the lessor's name is not a sub- stantial breach of a covenant to insure in name of lessor and lessee {p). But to insure in joint names when the covenant is to insure in the lessor's would be a substantial breach {q) smce the lessee could in such a case give a good receipt tor the policy-moneys. To leave the premises uninsured for ever so short a time is a breach (r). Where a breach has been committed, the insurers cannot cure the forfeiture, if any, incurred therebv, by dating back the receipt (s) for the premium. " If any conduct of the lessor induces the lessee to ' _Z^ ^'^ '' '^°'"" ""^^ ^^'""^ '' necessary under the 23^L?/S'p X'X ''' ^^''^ '^•^' ^^'"•'^^ ^- ^^'''"' ^3C^'- B. 46.6s. » ntj; ^^«7:'f);^P--ice 206 note.' Pl^tt CoyeJL ,92. ^^(2) Pcnnlallx. Harborne, 12 Jur. 159, 12 Q. fi. 368, 17 L. J. Q. B. \r) Hen V. Wych, 2 Gale & D. 569. 12 L. J. Q. B. 8^ 6 Jur «n ^"V'n^,V'. 13 .Tur. 276, 18 L. J. (j. J3. 106. ^' "'' ^59- 0') ^^ilsony. irUoM, 14 C. B. 616, 18 Jur. s8i -3 L J C P , •- jmium paid to fresh one, or t breach of a ir which com- and therefore red. Hence it c. 35, ss. 4-9. iby, unless so e the remedy linages. : a forfeiture, is not a sub- in name of ovenant is to il breach {q), ■ good receipt !r so short a the insurers I thereby, by I. ihe lessee to i under the , i3<-'-B.46-65, lesou, 9 Q. B. D. tH 192. V. K.256. Doe 17 L. J. Q. B. 53, 6 Jur. 559. J. C. P. ,37. OBLIGATION OF TENANTS TO INSURE. 299 covenant, no forfeiture will result (t), since an estoppel Estoppel of is worked by the lessor's acts. '^^^°'^- The lessor waives the forfeiture if he accept rent Waiver by falling due after knowledge of the breach ; but the ^^''°''- breach is a continuing breach, and the waiver operates only as to the portion of time prior to such waiver (%). 22 & 23 Vict. c. 35, the statute governing relief against breach of covenant to insure, has been repealed by 44 & 45 Vict. c. 41. Under the present law these cases are only important to show what amounts to a forfeiture, for the High Relief under Court has now power to relieve against such forfeiture ^' ^- '^^'• on such terms as seem just; and no stipulation or pro- vision in a lease can in any way exclude this jurisdic- tion (,'j). The Court may relieve upon terms such as an injunction against a future breach, or restitutio in integrum, or damages estimated in the manner already indicated. It may be further observed that a landlord cannot now succeed in his action for a breach of covenant to insure, if he seeks a forfeiture in such action, unless he has served a notice on the lessee requiring him to remedy the breach and to pay a money compensation for the breach; and unless the lessee fails within a reasonable time thereafter to remedy the breach to the landlord's satisfaction, if it is capable of being remedied. Forfeiture therefore for breach of covenant to insure is now virtually impossible (y). Through the repeal by the Conveyancing Act, 1881, Repeal of of 22 &; 23 Vict. c. 35, ss. 4-9, the protection (no lonc^er " * =3 vict. ^ O C. 31;, 88. 4-Q. — Effects. (<) Doe V. Bowe i Ry. & M. 343. Doe v. Sutton, 9 C. & P. 706. (u) Doev. Oladwm 6 Q. B. 953. Price v. Worwood, 5 Jur. N S 472, 33 L. T. 149, 7 W. R. 506. Bridges v. Longman, 4 fieav. 27. (.r) 44 & 45 Vict c. 41, 8. 14 (2). Quilter v. Mapkson, 9 Q. B. D. et' S (-th V: ''^ '' ^- ^- ^- ' 56'- 3' ''■ '' 75. 'Woodfall {y) 44 & 45 Viet. c. 41, s. 14 (i). \ \ •«e«5' M. '% i,y ,1 I c •Mi* KM* I** IT »- IS ml Title to proceeds. Coveuant lo insure in landlord'^ uame. 300 THE LAWS 01.' INSUliANCE. really needed) of an assignee of a lease, to whom the last receipt for rent has been produced, is withdrawn. On the other hand, the landlord no longer has the benefit of an informal insurance by the tenant, given by s. 7 of that Act. Where tlie tenant covenants to insure in the land- lord's name, he is not entitled to receive the policy- moneys in case of a fire, or to employ them in rein- statement, or to reinstate and then demand the policy- moneys (z). It may even be doubted whether if he allows the landlord to receive the money he can insist on its beino- employed in reinstatement (a). But he is clearly entitled to serve a notice to reinstate upon the in- surer, and by that method to obtain the benefit of the policy (?>). And the landlord has the same right re- specting any insurance effected by the tenant on his own account (r). Separate Where the lessee is under covenant to insure, and the lamCand landlord also insures the same interest on his own tenant, effects account, the landlord would seem to be covered in both cases, and the insurers would be entitled to con- tribution iiitci- se, where the insurances exceeded the whole value of the premises, or the fire was only partial. But in such case the landlord will not be allowed to increase the liability of the tenant or to diminish the benefit of his policy, and will be obliged to bring into account what he has received on his policy (c). For instance, if both insured for ;{:5oo on a house worth ;^7oo, in case of total loss £sSo would be paid on each policy, and the landlord would be obliged to account to the tenant for ^150, the Double insurance. (£) Garda, v. hup-am, 23 L. J. Ch. 478, per Lord St. Leonards. a) hee, however /%/*«/•(/ y Arnold, 10 Wi. App 386, 23 W. K 804. (b) Under s. 83 of 14 Geo. IIL c. 78. rt- j . j 0U4 "^^W k'^8o'"'^ "■ ^^'"""'*'' '° ^^' "'^^^' ^^^' ''''^™'"« S- ^" '6 Eq. 218, vhoiii the last idrawn. On s the benefit 'en by s. 7 of in the land- ! the policy- lem in rein- l the policy - 3 allows tlio on its being e is clearly Jon the in- 3nefit of the ne right re- aant on his iure, and the 3n his own covered in tied to eon- xceeded the e was only will not be enant or to 1 be obliged ived on his or ;^500 on loss £^$0 ilord would ^150, the leonards. , 23 W. I{. 804. C. x6 Eq. 218, OnLlGATION OF TEXANTS TO INSL'IlE. 30 1 amount whereby the benefit of the latter's policy effected under a covenant in his lease would be diminished. Jf damage were done, say to ;^ioo, each would receive ^,'50. But the landlord would have to hand over the £i,o which he received, or spend it in reinstatement. Where a tenant being under a covenant to repair, kc, but not to insure, does insure, such policy is not an insurance of the landlord's interest, but of the tenant's liability, and in such a case no contribution would take place between the insurers if the landlord insured, and the tenant would not be harmed by such an insurance (d). Where a tenant bound to insure has an option to Option to purchase, he can insist on the proceeds of a policy effected ^"nanrbo-md l>y him being taken in satisfaction of part of the to insure, purchase-money (c). A covenant to pay rent continues in force even after the destruction of the property in respect whereof it is payable (/). This liability gives the tenant who incurs Tenant's it an insurable interest in his rent which most offices !i»su™bio are willing to cover. Where the covenant to pay rent rent'^^* "" is so qualified as to exclude this liability, the rent will, in case of a partial loss, be apportioned (ff). But even a covenant excluding the liability to repair in case of casualties by fire will not remove the liability for rent (h). It is therefore prudent, in all cases where lia- bility to pay rent in case of fire is not clearly excluded, for the lessee to insure his rent. Where a tenant is in no way responsible in case of j I s ^. ESMm Jf T^Ti "": ^'^^'"' 5 Q- B- D. 560, so L. J. Q. B. 33, 29 W. R. 66, 42 jj. 1, iN, o. 797' i;)^;W"rdy. Anwld, 10 Ch App. 3S6. 23 \V. 1{. 804. U) Ilohupfel X. Baker, 18 Ve.s. 115. Baker v. ilobapfd, a Taunt 45 (1811). Loft V. Denis, 28 L. J. Q. B. 171. J>ar,J\: Ubh!f, I y. B- 421. Jzon V. Gorton, 5 Bing. N. C. 501 (18^9) 726^Vl!t' N'"&?3'^r''' ^ ^' ^ "■ ^^^' ^' ^'^ ^' ^^- ^ '^4. II W. 1;. (ipBdfoury. Weston, i T. K. 310 (1786). and Pender v. Ahsln; ( 1 707) tuereiu cited. '' ^^^ TJIB LAWS OF LNSUKANCE. lire, lie may still be eiititlerl to insure, to secure him- self against loss of the benefit of his term by the happening of a fire, or loss of premises for which he is liable to pay rent for a term. J'mt the value of the tenant's i.nterest not being commensurate with the value of the fee-simple, he could not, on an insurance on his own interest, recover the fee-simple value (i) except by way of reinstatement. To hold otherwise would enable him, by adequate insurance, in case of fire to put himself into the freeholder's shoes. SureTo'J" ^^•^'''^ ^ contract is made to insure the property of Bftnkru,,t.y of another, and that is burnt, and the contractor becomes covenaut,.,-. bankrupt, the owner of the property may prove in the bankruptcy for the value of the property lost. It does not seem to matter whether the contract is to effect an insurance or one to be liable for damage by fire. But the claim of the owner must arise from damage suffered before the bankruptcy. It might at first seem a mere claim for unliquidated daiuages, but the Court in tlie case cited below held that the quantity and quality of the timber was settled before the bankruptcy, and that the value was regulated by the market price, and that a proof for its value at that price was admissible (k). (0 Caste lam v. Preston, ii Q.B. D. 3S0, per Bowi-n, L.J. ; rcDoi ako 52 L. J. Q. B. 366. 49 L. T. N. S. 29. 31 W. R. 557. ' ^ {k) Lx parte Jlatanc.it, 25 L. J, Bkcy. 19, 2 Jur. Ni H. 365. ■ted ( 303 ) secure him- term by the •r whicli he is ) valuo of the witli the value Lirauce on his lue (i) except lerwise would 2 of fire to put B property of ctof becomes prove in tlie ost. It does \ to effect an by fire. But nage suffered seem a mere ^ourt in the [uality of the md that the and that a ible (k). L.J. ; reported 7- i. 365. CHAPTEK XV. MORTGAGE. Tin; mortgagor has an insurable interest in so much Mortgagor's of the property mortgaged by him as is of an insurable JXS'* nature. Whatever the number of mortgages he is equitable owner still, and his right to insure remains co-extensive with tlie value of the property (a). In case of loss the mortgagor has a perfect right to look to liis indemnity from the insurers as a means of dis- charging the incumbrances in the place of tlie property itself. The incumbrances do not cease with the loss, and the whole loss is the mortgagor's, and he remains personally liable for the mortgage debt; for "every mortgage implies a loan, and every loan implies a debt, for which the property of the borrower is liable, though he have neither entered into a bond nor covenant for payment of it " (b). The mortgagor's insurable interest in the mortgaged Mortgagor's properties does not cease until foreclosure absolute and *'^*^'«st ceases the extinction of all equities in his favour (c) ; and in ""^ ^°''''^°'"'''' Canada until the mortgage debt has been paid, though foreclosure has taken place, on the ground that the mortgagor is still liable (d). In a recent American case the mortgagor was held to have an interest though the mortgagee had sold, as the sale was set aside. A mortgagee as such has only a partial interest in Mortgagee's any msurable property comprised in his security. His Insurable (a) Oloverx Blach, i Wm. BI. 396, 3 Bmr. 1394. (6) iMsher Mortgages, vol. 2, p. 679. (c) Thompson v. Grant, 4 Madcl 438. See Angell Ins. p. 100 for American cases hereon. Stephens v. Illinois, 43 111. 327 ^ {(I) I arsons v. Queen Insurarwe, 29 U. 0. (C. P. ) 1 88. 2 1 1 . This case came to the Privy Council en another poiat, 7 App. Cas. 96 rjian 304 mni" iH'r" Further advances. THE LAWS OF INSUUAN'CK. mortgajye interest is limited to the amount of his mort- gage debt by the terms of 14 Geo. III. c. 48 (e). Any fire policy efifected in virtue of his mortgage interest is merely a collateral security for his debt, for " the con- tract of insurance contained in a marine or fire policy is a contract of indemnity and indemnity only, and the insured, in case of a loss against which the policy has been made, shall be fully indemnified, but shall never be more than fully indemnified " (/). Such mortgage interest has in New Brunswick been decided to end on foreclosure absolute, and if a fire happen tiiereafter the mortgagee cannot recover on the policy effected by him as mortgngee ([/) ; and he cannot, in case of a tire, recover more than the amount due at the time of the fire upon his security, because that is the measure of his loss, and the contract is only one of indemnity. The same rule -also exists in Canada (h). Such a policy will not, according to some American authorities, cover further advances, unless it be specially so stipulated (/), so that, though the mortgage deed may contemplate further advances, only the unpaid balance of the amount due at the time when the policy was effected can be recovered. This would, however, seem to be at variance with English law ; for " a person who has a limited interest may insure nevertheless on the total ^alue of the subject-matter of the insurance, and he may recover the whole value subject to these two provisions. First of all, the form of his policy must be such as to enable him to recover the total value, because the assured may so limit himself by the way in which (>■) Nee per Howen, L.J., in Costellain v. Preston, ii Q. B. D. 380. 52 L. J. Q. J5. 366 at 376, 49 L. T. N. S. 29. 31 W. 1{. 557. (/) Coxtellaiii V. rreatoH, II Q. B. D. 386, per Brett, L.J, (a) Gad-i)> v. PJumlx, 6 Allen (New IJruns.) 429. See also Smith \. Cohimhtaiu 17 Fenn. 253, Seeing that he has only insured a special interest, and not the premises. But, contra nee Baihy v. American 1hi<. Co., 5 McCrarj (U. S. Circ. Ct.) 221. (/() Ogden v. Jlontreal, 3 U. C. (C. 1\) 497, and see Ebsworth v. Alli- ance Co., 43 L. J. C. V. 394 D., a case of insurance of a partial interest or lien. And also .Fohnson v. North Uritish ami Mercantile, i Holmes (U. S. Circ. Ct.J 117. Humphreys v. Hartford Fire, 15 Blatch. (U. I?. Giro. Ct.) 504. (i) Smith V, Cohtmhia, 17 Penn. 253. jnt of his mort- c. 48 (e). Any gage interest is t, for " tlie con- e or fire policy inity only, cand Iiicli the policy ified, but shall d " (/ ). Such k been decided ' a fire happen ' on the policy ! cannot, in case due at the time b is the measure I of indemnity. Such a policy ithorities, cover stipulated (/), ly contemplate aalance of the ;y was effected er, seem to be erson who has 5S on the total trance, and he to these two policy must be value, because wav in which u II Q. B. D. 380. f- 557- Btt, L.J, Sne also iSmifhy. ■ insured a Bpeeial f V. American Int:. Ebsworth v. Alll- \, partial interest or cantile, i Holmes 15 Blatch. (U. tS. MOKTGAGE. 305 lie insures as not really to insure the whole value of the subject-matter; and secondly, he must intend to insure the whole value at the time " (/c). It therefore seems that if the policy is such as to cover the full value of the property insured, the mortgagee might recover to t!ie full extent of his interest therein, whether such interest were created by original advance or further ad- vance. The mortgagor has no interest in a mortgagee's policy effected with the mortgagee's own moneys, and not in pursuance of any agreement between them (/). But by the operation of s. 83 of the old Metropolitan Mortgagor-. Buddnig Act (m) (left unrepealed by the Metropolitan '"''"■''^' '" Building Act, 7 & 8 Vict. e. 84), tlie mortgagor may potr"" insist on the proceeds of a mortgagee's policy being applied towards reinstatement, and thus the policy luight enure for the benefit of the estate '(n). In the absence of express stipulation, a mortgagee Mortgagc-o-s could not, independently of statute (0) charge in i8httocharg« . . 1 . . -1 , . ^ '' ^■''"■'o'-' '■"■ premiums. account the premmms paid by him upon an insurance of the property against fire (^;), nor could he (even though the mortgagor had covenanted to insure against lire and neglected to do so), as against a subsequent incumbrancer, himself insure the mortgaged premises and add the sums so paid to his mortgage debt (q). Chattels do not come within the scope of 14 Geo. III. c. 78, s. 83, and reinstatement of them cannot be had Consequently the mortgagee cannot be made to expend^ Not obliged to in reinstating fixtures which were not attached to the '■''•'estate freehold, money arising from an insurance thereon ^'''°'''' effected on his own account (r). I & ■m ^:sm. J!^(Z'nf,t'' '■ ^''■'''""' " '^- ^- ^- "* ^9S, per Bowen, L.J. See Q) fJobnon V. Land, 8 Hare 216, 14 Jur. 221, 10 L J Ch ^s^ /.-;,> V. ^tate Mutual, 61 Mass. (7 Gush.) 1 ^ ' ^^^4- A.»7 (m) 14 Geo. in. c. 78. («) Ex parte aoreley, 4 De G. J. & S. 477, n W U 60 ^A J T iikcy. I, u L. T. N. S. 3,9, 10 .Jur, N. S. 1085. ' ^^ ' "^• (0) 44 & 45 Vi-jt. c. 4, 8. 19 (2). {}>) Bellamy v. Brickenden, 2 J. & H. 137 ■'' \^) ^^ y-^i-'-fi uorelei/, uOi mjjva. U *" S '.'1 pi" 306 MortpraRee's light in mortgagor's policy. Convoyanciug Act, i88i. Convoyancing Act, 6. 19. !((♦..»■■• Conveyanci Act, 8. 23. %■»•■■' THE LAWS OF JNSUKANCE. If the mortgagor after the mortgage, and in tlie absence of any agreement by him to insure, does insure, the mortgagee eould not, until the passing of the Con- veyancing Act, 1 88 1, claim to be paid out of the pro- ceeds of such insurance (.s). Ke could, however, if the insurance-money had not been paid over, insist on its being applied in reinstatement (/). Now, however, by the Conveyancing and Law of Property Act, i88i'(7<), a mortgagee, where the mortgage is made by deed, will have the power, to the like extent as if it had been Ca- pressed in terms by the mortgage deed, " at any time after the date of the mortjjage deed, to insure and keep insured against loss or damage by fire any building, or any eflects or property of an insurable nature, whether afiixed to the freehold or not., being or forming part of the mortgaged property ; and the premiums paid for any such insurance shall be a charge on the mortgaged property in addition to the mortgage-money, andVith the same priority, and with interest at the same rate as the mortgage-money " (x). And by s. 23 of the same Act it is provided that— "(i) The amount of an insurance effected by a mort- gagee against loss or damage by fire under the power in that behalf conferred by this Act shall not exceed the amount specilied in the mortgage deed, or, if no amount is therein specified, then shall not exceed two third parts of the amount that would be reqi'ired in case of total destruction to restore the property insured. " (2) An assurance shall not, under thfi power con- ferred by this Act, be effected by a mortgagee in any of the following cases (namely) ; — " Where there is a declaration in the mortgage deed that no insurance is required. 14 L. 1. ^. S. 472, 14 W. K. 534. See Angell 1 14, s. 60. (0 Ex parte Ourtleij, uhl Huprn. (u) 44 & 45 Vict. c. 41. (x) 8. 19, clause 2. MORTGAOE. e, and in the re, does insure, ig of the Con- ut of tlie pro- owever, if the ', insist on its r, however, by Act, 1 88 1 (7/), s by deed, will ; had been eA- "at any time sure and keep y building, or iture, whether rming part of urns paid for ihe mortgaged ney, and with J same rate as )vided that— i by a mort- ler the power 11 not exceed eed, or, if no :'t exceed two 3 reqi'ired in aerty insured. ft power con- ?agee in any lortgage deed ; L. J. (,'h. 412, 60. 307 " WJiere an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed. "Where the mortgage deed contains no stipulation respectmg insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure. "(3) All money received on an insurance effected under the mortgage deed or under this Act shall if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received. "(4) Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage." Query whether puisne incumbrancers who have Puisn. insured can require the amount payable to prior incum- '""'""brancers brancers under another policy to be applied in rein- retstatement. stating the premises (y). The Act imposes no obligation to insure upon the mortgagor. It simply gives in certain cases to the mortgagee the power to effect and keep up a policy and pay the premiums, which will become a charge on the mortgaged property in addition to the mortcracre money, and the mortgagee can only charge the in'ort Remarks on gagor the premiums on an insurance not exceedinvoineuts uot payable to mortgagee. TirK LAWS OF INSUltANCK. execute a loRal mort^'aj^e, the ni()rt<,'«;;eo can compel tlu; execution of the latter ; hut, it would seem from tlie terms of the Act, could not exercise his statutory rights until the execution of such deed. The limit of iiisuninco for which the premiums can be charged to the mort«,'a[i;()r, two-thirds of tht; cost of reinstatement, seems based on the usual limit of a niortgaj^ec's advance. The Act provides for a defect in s. 83 of 14 Geo. III. ^- 78. l>y giving the mortgagcio a power to insist on the proceeds of any insurance ellecteil under the mortgage deed or the Act being employed in roinstatinf;^ the premises, s. 23 (3), whether the same have or have not been paid over to tlie insurer, S. 83 only compels insurers to reinstate on the re([uest of parties inter- ested in the pro[)erty insured, but does not oblige either of such parties, to whom the insurer may have paid over the insurance-money, to reinstate on the request of the other ])arties interested. These statutory pro- visions do not alTect the mortgagee's right to insure the whole amount of liis mortgage debt in a case where lit- is insutViciently secured by policies to the amounts aforesaid. But he would be unable to charge the mort- gagor with the premiums on any amount in excess of ' what is specified in the statute, and would be liable to have the proceeds of his policy api)lied in reinstating the premises if the mortgagor so desired it {z). Where improvements are effected under the Settkil Laud Act, 1882 ((?), and the tenant for life, or aii\ successor having a limited interest, is obliged to insun.' the same under s. 28 (i), it would seem that, if these improvements were damaged by fire, the tenant for life, or successor, could not pay the proceeds of an insur- ance on such improvements to a mortgagee thereof with- out becoming liable to the remainderman, s. 28 (5). (z) Beijnunl v. Arnold, lo Ch. App. 3S6, 23 \V. II, 804. (a) 45 & 46 Vict. c. 38, amended by 50 & 51 Vict. c. 30, n. 2. MOFlTOAdE. 309 •nil compel tlui i(!om from tlic itatuLory rights premium.s can of till! cost of ml limit of a )f 14 Geo. III. o insist on tho the niortga.^'c ainstatiiifif the Vii or have not only compels parties inter- t oblige either lay have paid )ii the request statutory pro- : to insure the L'ase where lie the amounts irf^^e the mort- it in excess of tl be liable to in reinstating t {z). iY the Settleil r life, or aii\ igcd to insuri.' that, if these 16 tenant for Is of an insur- ! thereof with- s. 28 (5). I. 804. C. JO, .S. 2. And if a lessee insured in pursuance of his covenant MorfgaK«c of in his lease, it would seem that the mortgagee of the SruUthMu"* leasehold interest could not claim the proceeds of the policy-money, policy (b) as against the lessor, Hesides those cases in which the insurance has been effected either without any stipulation between the parties or to supplement a default by the mortgagor, (questions arise as to the proceeds of policies etl'ected luider contract. Where lessor or lessee covenants to repair, the n.-gi.t to pro- covenantee would have no claim on a fire policv taken cjh'Js of policy. , ,. , 1 « . 1 J ^ Wliore cove- out lor the purpose of protection against liability to »""' to repair repair in case of fire (e), but it would be dillerent in ^'"'"'"* case of a covenant to insure. In Gcmien v. Jnumm (d) covenaut to a lessee under covenant to insure and apply the proceeds '"''"'■^• of the policy in reinstatement mortgaged his term, the mortgage deed containing no covenant as to insurance. A policy was on foot in accordance with the lease, when a fire happened, and the mortgagee had assigned his interest with benefit of policy. The Lord Chancellor decided that the mortgagor could not claim a lien upon the policy for money expended by him voluntarily in reinstatement, as both insurance office and lessor could insist upon the policy-moneys being wholly expended on reinstatement. He decided further, that since the object of the insurance was reinstatement, the mort- gagor could not claim the policy-moneys as against the mortgagee so as to defeat that object; and that such being the original destination of the money, and the lessee being powerless to prevent reinstatement, it was immaterial to decide whether the benefit of the policy passed to the mortgagee's vendee. The mortgagee had exercised his power of sale with I. is: ^ «3 23 {4), but see Garden v. Ingram, (6) 44 & 45 Vict. c. 41, 8. 2^ L. J. Cli. 274, 23 Jv. .1. 478. (c) Brown v. Qullter, 2 Eden 210, Anib. 619. Leeds v. Oheetham. 1 Sim. 146, 5 li. .T. (). S. Ch. 105. (d) 23 J.. J. Ch. 478. 310 No riglit of roinstutonu'Ut uudor bill of sale. Mortgagee obliged to transfer instead of re-convey. THE LAWS OF INSURANCE. bcneHt of policy, so that tlio lessee's interest in the premises had ceased. This was held not to afiect the validity of the policy, inasmuch as the lessor's interest in the promises continued, but to deprive the lessee of all benefit of the indemnity promi.sed by the policy since he had not the property in respect of which it was to be given. In a very recent American case, where a mortgage contained a covenant by the mortgagor to insure, and the purchaser of the equity of redemption obtained by his agent a policy payable in case of loss to the mortgagee, the latter was held entitled to the proceeds under the circumstances of the case (c). This case enables the mortgagee, not to appropriate he proceeds of the lessee's policy, but to insist on its being used according to the covenant. In the particular case the mortgagee's vendee had become by conveyance he actual lessee. Now, however, the whole difficulty Acl ^881 (/) ''^ '''^ "^ '■ "^ ^^^ ""^ "'' Conveyancing Tliis section also covers Lcrs v. W/nMn/, 2 En 140 m which case a bill-of-sale holder, who had stipulated tor insurance but not for appropriation of the policy- moneys to the debt, was held to have no equity to receive the proceeds of the policy as against the assignees of the grantor, who had become bankrupt. Kindersley, \.C., declined to import any term into the contract, or to imply it from the nature of the stipula- tion therein contained. A bill of sale on chattels does no , as would a mortgage on realty, give the holder any nglit to insist on reinstatement (y). As a mortgagee may now be compelled to transfer his mortgage in lieu of reconveyance (h), a question may arise as to an insurance effected in his name in fs. (e) Ji'('iuerc in) Keported 11 Q. .,. ^. ,„^. ,^ .,. „. ^,,. 3' W. It. 557. {h) The Potomac, 105 U. S. (15 Otto) 630. 3i8 Vim Mortgagee of leaseholds could not bo heard agaiust forfeiture before Con- veyancing Act 1881 ; it is otherwise since tho Act. THK LAWS OF INSUKANCE. ofKces prefer to treat each other as co-insurers in such a case. And tlie Conveyancing Act has made, as between mortgagor and mortgagee, insurance practically run with the land, as had been held by James, L.J., should be the case (?'). The mortgagee of a leasehold interest who was not in possession could not before ths Conveyancing Act, 1881 be heard on an application for relief against forfeiture under 23 & 24 Vict. c. 126, s. 2, since repealed by 4C & 47 Vict. c. 49, on the breach of the lessee's covenant tc insure (/.■) in the lessor's action against the lessee, and could not be made a party to the action of ejectment under Ord. xvi. r. 13, J. A. 1875 ; and it was said by Lush, J., that if the mortgagee had any equity he inust pursue it as a suitor. But in s. 14 of the Conveyancing Act, 1 88 1, the word "lessee " includes his assignee, and therefore a mortgagee by assignment of leaseholds could in the landlord's action or one brought by himself apply for relief against such a forfeiture, and the Judicature Act and llules enable him to come for relief even after judgment (/). In mortgage deeds to be made under the present law, a covenant to insure against fire is scarcely needed (m). (i) liayacrx. Preston, 18 Oh. D. i, 50 L. J. Ch. 472, 44 L. T. N. S. 787, ^9 W. 1{. 1547. (/:) Mills\. 'firi(fitl,8, 45 L. .7. (}. ]], 771. (/; Jaajufs V. Jiurrixoti, 12 Q. i]. D. 165. (ill) Davidson I'rec. ('oiiv. 195. ( 3^9 ) iirers in such a de, as between ractically run s, L.J., should ho was not in ng Act, 1 88 1, nst forfeiture Jflled by 46 vt s covenant t( le lessee, and of ejectment was said by uity he must Conveyancing assignee, and 3eholds could iiimself apply e Judicature }f even after •resent law, a leeded (m). , 44 L. T. N. S. CHAPTER XVI. FIRE POLICIES AND ASSIGNMENT. If the assignment of property insured against fire Rights of be total, the assignor cannot recover on the policy *''«!kdo'* ^"^ for himself, as his interest in the property will have po"cy aVe°r ceased. assignment of property. If the assignment be partial, he can recover for his own I enefit only to the extent of his remaining interest. The assignee of property insured against fire can recover nothing under a policy effected by the assignor unless — (i) It was part of the contract between the assignor and assignee that the latter should have the benefil; of the policy as between assignor and himself. (2) The office consented to hold the assignee assured either by the terms of the policy, or on notice of the intention to assign before transfer of the property. (3) If the policy expresses that the consent of the office shall be given in any particular form, that form must be strictly complied with. Nor can a vendor recover on his policy for the benefit of the purchaser after he has been paid the purchase-money in full, though he has not conveyed, and even if it be part of the contract of sale that the vendor shall keep alive the policies for the benefit of the purchaser, and assign them to the purchaser (a). Under such a contract, (a) New SotdhWaleg Ba7ik V. Commercial Union (No 2) ? N S W \ZS!' "'" ^"^"''' ^"'^ American law is fully and ably dis- ?4 £3 •9 ^'jm 320 TiiK LAWH OF INSUKAN'CB]. however, the vendor would Ijo bound to <^et tlie insurer's eonsent, if lie could, to the transfer, or to eflleet n new policy for the purchaser's benefit, and would b(! liable for neglect to do so. oVjillidoi!"^ ToHcies of in.sunince are cho.ses in action, yivint? as they do the ri^ht to proceed in a court of law to recover the nionev thereby contracted to l>e paid (h), "A policy certainly must be transferred, for though a chose in oction cannot in hiw be assigned, yet in eiiuity it may ; therefore we will permit the action to be brought by tlu^ trustees" (r). Insimn's The rulc in eiiuity that choses in action are assi"ii- nelSiy t.. '^^^^ ^^"^^ ""t, liowcvor, apply to ev) h]\ parte Ibbelxon, S Cli. D. 519. 39 C. T, \. S. i, 26 W. I!. S4 3. ((■) Wimls used in Ihlinii/ v. ,Sto t'lie nterest in tlie )f the fire, and d to give liis the loss, must covers. Sucli ■nt of the in- without proof lis is required nies to permit the goods first y, and tliat, if to the hehefit elves liable to lat the assign- , aod that the tlie policy as a thereto on tlie lity will recog- , such right is particular con- so as to bind nst fire in tlie I themselves to inistrators, and t will be valid c, Co., uh't .s)/ji), O. Lynch v. Bal- P.) 270. o, 50 L. J. ( 'h. 472, unless accepted (such acceptance being testified in a prescribed way) by the insurer. The insurer cannot be made to accept any assign (jo). It is pure matter of favour for him to continue the insurance, and tlie con- tract is a new contract. The assignee takes the policy consent of free of all vitiating circumstances and upon the same ^'^^I'^'-y ^^ terms as those upon which it was originally issued to S^maJen a the assignor, and the company by its consent to the ""'"''""^'■"°'- assignment is estopped from denying the validity of the policy {q). The view that a fire policy runs with the land has not Does fire yet found favour with the Courts. But it is fully and f'""'"-'' '"" very forcibly put forward by James, L.J., in Rayna- v. ^"^ '"'"'• FrcHton (/•). In a dissenting judgment, his lordship considered that a contract of fire insurance should be held to run with the land, and enure to the benefit of the person from time to time interested therein. It runs with the interest insured provided that the owner of the interest is accepted by the insurers. If after the contract of purchase, and before the eon- Lo.s .,f nre veyance, the property is destroved by fire, the loss will ^''"' "" fall upon the purchaser, although the houses were insured -£e"7ndor at the time of the agreement for sale, and the vendor 'xrVre'"™'''' p.rnntted the insurance to expire without giving notice to the purchaser. If, however, the vendor has before the fire broken his contract, e.g., to repair or alter the property, the subsequent loss will not fall on the pur- chaser (.s). '■ The first business of a purchaser is therefore either to insure as from the date of Ids contract or to take an agreement to insure from the vendor. As the law now stands, the benefit of a fire policy ( p) KS Widen Banh v. North Brit. Jlercantile Co., 3 N K W I a™. 00 n Arnenca he tnaj not refuse his assent without vJmMe ^rounds i'\ Jri \i>^> u; (0 Poolr V. Ailiimx, 12 \V. 1!. 6S3, 10 L. T. N. S. 287. Xorth of Encilaiid Pure Oilcuke Co. v. Arc/iaiuid Maritiine, L. 1». 10 Q. B. 249, 44 L. J. Q. 1!. 121, 32 r.. T. N. S. 561. 24 AV. K. 162. llminer v. Prcstui), iS Ch. D. I, so L. J. Ch. 472,44 ],. 'J\ X. S. 7S7, 29 w: i:. 547. (m) ('astelluiii V. r.-exton, 11 Q. 15. D. 380. 49 L. T. N. S. 29, 52 1.. J. Q. 13. 366, 31 W. ll. 557. See also Colli iir/ridge v. lioi/iil Exchumii, 3 Q. B. D. 173, 47 L. J. Q. 15. 32, 37 L. T. I^. S. 525, 26 W. K. 112. (j;) limine)- v. Praatoii, iS Ch. D. i. 50 L. .1. Ch. 472, 44 L, T. N. S. 787, 29 W. 1!. 547. (y) See tStuntoti v. Home Ins, Co.. 24 Lr. Can. Jur. 3S. Canada (ivil Code, arts. 2483. 2576. a express con- cessory of the nt, but a right age to the pro- nnot profit by jrty, or recover ill the opinion 110 equity sub- in the absence irchaser to the vendor, and it e property had for no thin" a the vendor for 'eniium. s the policy to •J iy)- IS satisfactory, roperty, burnt ice-nioney and ;y. But if the i office under !t (14 Geo, III. cl in the pro- (It was upon ;hat a contract with the bind n time to time or has a cood he policy ; and S. 287. Xortli of !.. 1{. 10 Q. B. 249, lidipier v.I're'iliiii, , w: i;. 547. , X. s. 29, 52 1.. J. lioi/dl Exchuiiije, 26 W. K. 112, ' 472, 44 L, 'J'. N. S. '. 3S. Canada Civil FIRE .POLICIES AND ASSIGNMENT. 325 hy Paine v.Mdler(z) he has a good title against the sale of purcliaser to recover the contract price in respect of \ZZ'i the tiling destroyed ; but if he receives the purchase- money he will have sustained no loss by the fire, and may be compelled to refund to the insurers the amount which they paid him as an indemnity against his loss («). In Bayner v. Preston, above cited, Cotton, L.J., said : Opinion of " The contract [of sale] passes all things belonging to the ^°"°"' ^"'^• vendor appurtenant to or necessarily connected with the use and enjoyment of the property mentioned in the con- tract, but not, in my opinion, collateral contracts, and such at least, independently of the Act 14 Geo. III. c. 78, tlie policy of insurance is. It is not a contract limiting or affecting the interest of the vendors in the property sold, ^c affecting their right to enforce the contract for sale ; for it is conceded that if there were no insurance, and the buildings sold were burnt, the contract for sale would be enforced. It is not even a contract in the event of a fire to i-epair the buildings, but a contract in that event to pay the vendors a sum of monej- which, if received by them, they may apply in any way they think fit. It is a contract not to repair the damage to the building, but to pay a sum not exceeding the sum insured, or the money value of the injury! In my opinion, the contract of insurance is not of s\ich a naiure as to pass without apt words under a contract for sale of the thing insured An unpaid vendor IS u trustee in a qualified sense only, and is so not only because he has made a contract which a Court of Equity will give effect to by transferring tlie property sold to the purchaser, and so far as he is a trustee he is so only in respect of the property contracted to be sold. Of this the policy is not a part." •an HI 3 [■■) 6 Yes. 49. And bee illlkxpie v. Mllkr, i V. .S. ('. (4,1, series) N.^S* 29"*^i"{v"ir ^'''**'''"' " ^" ^^" ^' 2^'^' 52^- J AX B. 366. 49 L. T. 326 MortgTi^o of iuniTired proi,d. 'y. THK LAWS OF INSURANCE. Where the property insured against fire is conveyed by way of charge only, the interest of the insured is not defeated (6). It is pro voided by the Conveyancii g Act of 1 88 1 (c) that the liolder of such charge can, i i addi- tion to his other riglits, require the proceeds of any insurance effected on the property by the mortgagor, where no express agreement has been made to the contrary, to be applied in or towards the discharge of the money due under the mortgage. Right to poltcy-nio passiu)? IV b(,'uofl<'i!il interest. HI; '. ' f If legatees or devisees under a will, or the widow or UL^ heir-at-law or next-of-kin under an intestacy, have a vested interest in real or personal estate which has been insured, it would seem, though it has not been expressly decided, that the proceeds of any policy thereon, in case of a fire after the testator's or intestate's death, will be held by the executor or administrator for the benefit of the person or persons beneficially entitled (d). Tlie money clearly represents the goods or land, and, if pay- able at all, should be payable to the beneficial owner at the time of the fire. In the case of chattels, if the chattels perish in the life of the testator, or the tes- tator and chattels perish together, it would seem that the legatees thereof will not be entitled to the insurance- money. The right of action may be only in the represen- tative, but the proceeds recovered by him re])resent the subject of the insurance, and are held by him in trust for those beneficially interested in the estate {<). (h) Burton V. Gore District Mutual, 12 Grant (U. C.) 156, wliere the assurod mortgaged ami assigned his policy with the insurer's consent, and thereafter eHected fresh insurance. (c) 44 & 45 Vict. c. 41, s. 23 (4). vd) Culbertwii \. t'o.v, 43 Am. Hep. 204. Wijnuai \.Wymini,26'S.. Y. 253. Parry v. AMeij, 3 Sim. 97. Durrant v. Friend, 5 De (J. & S. 343. 21 L. .1. Ch. 353, 29 L. t. 152, i6 Jnr. 709, coniniented on in jtiaijner v. I'rexton, iS Ch. D. i, 50 !,. .1. Ch. 472, 44 I^. 'I'. N. S. 787, 29 VV. R. 547. (e) htrrij v. .Lv/z/t//, 3 Sim. 97. Mildnuii/ v. Folgham, 3 Yes. .Iim . 472, hut see comments thereon in ('iilbert.s'vn v. Co.'-, 43 Am. Ken. at p. 209. ire is conveyed ! insured is not veyancii g Act ;e can, i i addi- :oceeds of any the mortgagor, made to the le discharge of r the widow or ;estacy, have a (rhich has been been expressly hereon, in case death, will be the benefit of led (d). Tlie d, and, if pay- neficial owner chattels, if the >r, or the tes- Lild seem that the insurance- tlie represen- represent the him in trust ate (r). FIRE POLICIES AND ASSIGNMENT. 327 Mercantile policies on goods, &c., usually called float- Mercantile ing policies, are assignable by permission of the insurers Sjgoabio iu the same way as ordinary fire policies, from which ' they do not in reality differ except in the mode in which damage is estimated, and in the interests waich they cover. In the case of policy on goods with liberty to charge the cargoes, the mode of calculating thcKuiefor amount payable in case of loss is usually as follows, [os^on mfr- viz. : — The whole value of goods afloat, and covered by cautiie policy, the policy, must be taken, and the assured will recover Huch a proportion of the loss as tho full amount in- sured bears to the value of all the property afloat at the time of the accident, if that value exceed the full amount insured ; if not, the assured will be entitled to the whole amount lost (/). lore 25 (/) Crowley V. Cohen, 3 B. & Ad. 478, i L. J. K. B. 158, per Ten- 't'V'p^M Z''^"' ""• ^^^rr'^' ^'- ^'- 7 Q ^'- 7S, 41 I'. .J. Q. B. 17, L. 1. JN. S. 932, 20 W. R. '233. ' m :» ■> J. C.) 156, where insurer's consent, . Wymini, 26 N. Y, ihK 5 De (i. & S. soninientcd on in \ I.. T. N. S. 7S7, ham, 3 Yes. .Iiin . ', 43 Am. Kep. at an 3 VW <*«■■ < tK'lM' * 1-" |,i i>mu i»w, ( 328 ) Life policies securities for iiioiiey. Surrender. CHAl'TEK XVII. DISl'OSTIONS OF LIKE POLICIES. roLiciES of life assurance are treated as securities for luouey (a) payable at a date uncertain but calculable. The sum insured (apart from bonuses) is certain; the premium or consideration for its payment is also certain; and the time when the money is payable is certain to accrue : '■ Nihil certius morte, nihil incertius hora mortis." The present value then is computable, and assur- ance offices will accept surrender of a policy at that sum which is called the surrender value. A man possessed of a policy can also sell it to a third person, or borrow on its security. >^ni'rt'iciJs ^'^^^ policies are now construed as contracts, not to Nature of * indenuiify, but to pay a certain sum in a certain event Srbi; ^lepending on the duration of human life. If at the mS'exist'"" ^""^ ^^^^" ^^^^^^ contracts are made the assured has an insurable interest in the life on which the contract is made, the contract is valid (b), and will not be afl'ected by the determination of such interest before the hap- pening of the event insured against (<■), It follows from this that an assignment of a life policy would be valid and pass to the assignee the (a) ,Stohoe x.UoMin, 30 L. .1. Cii. S82, 7 J'lr. N. H. 901, 4 L.T. N 8 dtll]"^ ^°'' ~^ ^^^'''^' ^^"^ ('^'^i)-P^'' -^^"""'b', W.J{., ami cane then' (b) Asli/ey V. AMey,2 Sim. 149, per Shadwell, V.C. (1829). ((•) J>((lbt/\. fiidia (Did London, 15 (J. JJ. 365, 24 L .1 T " IS Jur. 1024. 24 ]'■ T. 0. S. 182, 3 W. J{. 116. Lmo v. London 'indl^- pnlahle,^ 1 K ii,\ 223. 24 L. J. Cli. 196, i ,Iur. N. S. 179, 3 W. II. kc, 24 L. 1. 208. i;-,it eee Veuna v. New York Life, 6 Canada 30 ;s. securities for )ut calculable. ) is certain ; yment is also is payable is lihil incertius e, and assur- )oliGy at that iue. A man third person, itracts, not to certain event e. If at the assured has the contract ot be afl'ected 'ore the hap- mt of a life assignee tlie oi, 4 L.'J". N. s. i., and case there (1829). 4 h. .1. 0. r. 2. London Jndi^- 79,3 W.K. ,55, .lliKiil 30. J)IS1'0SITI0.NS OF LIFE rOLKIES. 329 right to the insurance-money, even though the assignor's interest in the life had ceased before the date of the assignment. A creditor may insure his debtor's life, and the ver\ next day sell the policy to a third person, wlio is a debtor of the life assured, and therefore would liave had no assurable interest in the life enabling him to Iiave effected the policy. Under the Married Women's Property Act, 1882 {d), Married a wife may insure her own or her husband's life for her ,^°!",t° ""''^ separate use, and the same and all benefit thereof will I'usi.amVs (?iiure accordingly. In America also a married woman may insure her husband's life and dispose of the policy, for " if she pays tlie premium out of her own pocket, it is hard to see M'hy she should not be able to assign the policy " (f). A policy on a man's own life, expressed to be payable intmest in to his executors or administrators, is a reversionary in- Hf'!"^ "" °'^" terest (/), certain to fall in on the assured's own death or attaiinnent of tlie stii)ulated age. it forms part of the e Uate of the assured, being nionev due and owino; to him at his death (//), and may be dealt with at his al)Solute discretion — sold, charged, settled {h), given away («'), lie(]ueathed(/t), or made subject of a donatio laortis cai'sd (/), and passes to his trustee in bankruptcy (m). Tlie fact that the money secured by the policy has not Policy become due does not affect the right to assign or ti.e ^ep^j^abie. possibility of an absolute assignment {n). {(l) 45 &46 Vict. c. 75, n. II. (e) Vlaqnn v. Felloios, 36 Coiui. 132, 4 Am. liep. 49. (/■) l!ut see Ituwbones Will, 3 K. & J. 300, 476, 3 W. 11. 796, -5 I A .1. Oh. 509, 29 Ij. T. 155. {;/) J'dlji V. Wilson, 17 W. Jt. 778, 4 Cli App. 574. (/() >Srmdl V. King, 14 ('!i. D. 179 28 W. W. 344. (0 Jliimmens v. JJare, 1 Ex. 1). 169, 31 L. T. N. S. 407, 24 W. K. (/) Jt Donald v. Irvine, SCh. I). loi, 47 1.. J. Cli. 494, 38 1.. T. N. S. 15'; "5 W. 1{. 381. 1/ /./.'s V. Witt, 33 l!(;iiv. 619. Witt V. Anii.% I B. &. S. 109, ■■J I' ;. " SSiS*""-' ^^^ THE LAWS OF LXSURANCE. A policy, though a chose in action (o), is not within the order and disposition clause of the Bankruptcy Acts, 1869 and 1883 (0), nor is it a negotiable instrument (p). The legal title to a policy of life assurance can be ob- tained by assignment in accordance with the Policies of Life Assurance Act, or s. 25, sub-j;. 6, of the Judicature Act, 1873. An assignment upon trust may be an absolute assignment within the latter Act, and the assignee under such an assignment can give a good discharge for the policynBoaeys (q). A life policy has been held a proper subject of dona- tio mortis caasd (r) on account of its analogy to a bond. And it would seem that trover cannot be maintained for it by the executor or administrator of the assured (r) if the latter lias given it away without writing during his lifetime (s) ; but, on the other hand, a person to whom it has simply been handed without writing by the assured in his lifetime cannot recover from the assurers thereon (t). If the executor or administrator has subsequently regained possession of it, he can give a good discharge to the insurers, but not otherwise (u). ^Ji?c°^an(? Where a man effected an insurance on his own life ?eteu'tion of ^^^ in his daughter's name, and paid the premiums him- san^e by donor, self, though he retained the policy in his own possession, it was heid a complete gift to his daughter, and on his death she was held entitled to the insurance-money (r). In this case a policy of life assurance was effected l)y a man on his own life, but in his daughter's name, and up to the time ef his death he retained the policy in his Inter vivos. (o) hx parte ^W;^;o;^ 8 Ch D. 5,9. 39 I, T. N. S. i, 26 W. J{. 843. {p)>^truchan v. M^Dongh (1835), 13 ^■' «• C. (i.st series) 954 /V/W Kimjdom L,Je v. JJixon (1838), 16 C. S. C. (ist series) 1277 (q) Burlhixon v. IlaJl, 12 Q. B. D. 347. (»■) Witt V. Amis, uui suj). note (/). (s) Ihimmens v. Hare, i Ex, D. (C. A.) 160. id L T V S ^n7 iMtef^- ''"""" " ''"■'"'*' 3 "• ^ ^38'' 27 r f:t. S 30 li. 1. 128, 3 Jur. N. S. 1 145, 6 W. I{. 45. ' (u) Convmi v. Britarnia Co., 8 Lr. C!an. Jur. 162 (.r) Weston v. liicliar/fson, 47 L. T. N. S 514 ), is not within mkruptcy Acts, nstrument (p). ice can be ob- the Policies of the Judicature it may be an Act, and the n give a good ibject of donn- ogy to a bond, maintained for he assured (r)_ writing during 1, a person to •ut writing by aver from the administrator it, he can give otherwise (?/). 1 his own life remiums him- wn possession, ;er, and on his ice-money (./ ). effected ))y a name, and up policy in liis I, 26 W. J{. 843. Jiies) 954 i'nital 1277- r.. T. N. S. 407. 27 I^. J. Ex. 390, 'Ham's Tontine, DISPOSITIONS OF LIFE POLICIES. own possession and paid all the premiums himself from time to time, except the I.'st, which was, through his want of funds, paid by his son. There was no mention of the policy in the will of the assured ; but he com- municated the fact of the insurance to his daughter, and gave her to understand that it was for her benefit. Kay, J., said "that the legal right to call upon the office to pay was clearly in the daughter, and not in the executor, the contract of the assurance company having been to pay her. That she was the daughter v/as sufficient to raise the presumption that the advance was to her, and the only thing that could be relied on to rebut this presumption of advancement was the fact that the father kept the policy in his own hands. But that was not sufficient. The mere retention of the policy did not show that the beneficial interest also was not intended to pass to her. Thus the gift of the policy to the daughter was a complete one, for the legal and the beneficial interest were vested in her." Accordingly she was entitled to receive the sum assured. In Fortescue v. Barnett (y) the assured made a voluntary assignment by deed of a policy upon his own life to trustees, for the benefit of his sister and her children if she or they should outlive him. The deed was delivered to one of the trustees, and the grantor kept the policy in his own possession. No notice of the assignment was given to the insurance office, and the assured afterwards sunandered for a valuable considera- tion the policy and a bonus declared upon it to the insurance office; and the Court held that upon the delivery of the deed no act remained to be done by the grantor to give effect to the assignment of the policy, and that he was bound to give security to the amount of the value of the policy assured by the deed. The Master of the liolls said : " The gift of the policy appears to me to have been perfectly complete without delivery. 331 an 9 3 (11) 3 M. & K. 36, 2 L. J. N. S. Ch. 98. Seivell v. Ring, 14 Ch. D. 179, 28 W. K. 344, <} I illli !»!! 332 A88iniimcii(, liow iiiade. I'.v "lint liiw ociisirut'd. TMK LAWS OI.' INSURANCE. Notl.in- rcMunincHl to l.e done by the grantor, nor could IH.' luivc! duno what lie afterwards did to defeat his own K'rant if the trustees had given noticv of the assignna-nt to the insuranee odice. I a.n of opinion that ne act remained to be done to e(>in])lete the title of the trustees IJio trustees cught to have given notice of the n'.si"n- laent.but their omission to give notice cannot aflect the ccshns ijiir 1 nisi rut." Xo particular words are necessary to constitute an ecjuitable assignment of a policy of life assurance if the intention be clear; and such an assignment may even I'e created by word of mouth, ami an equitable mortgage i"ay also be created by the d.ij.osit of a policy of assurance so as to entitle the depositee to the moneys assured {z). The ].ledge of a lire j.olicy as collateral security is not an assignment within the condition prohibiting assignment {a). 'J'o ^ ""•t the title of the mortgagee of a policy, notice in u.iting should be given to the insurance ofhce ot the assignment, otherwise a subsequent assignee lor value might, by lirst giving notice, obtain priority {h). The validity of the assignment will be governed by the law of the place \\here it was made; and the ].arties thereto were domiciled. Hence, where a life policy, granted by aij English insurance company to the assignor was by him iissigned in (lape Colony to his wile, they being domiciled there, the assignment was lield invalid in Knglaiul, because, by the law uf Ca])e iitr. 11 ojo oj>o, I) L. 1. N. S. 367. 12 W. K. t>7 (n!y1)417''''' '■ '^''"' ^ '""''"' ^■''■' 53''^"'- IJ^T- 202, 55 Sicke ^/.) 30^^31 Vi.t. c. 144, s. 3. ,lH(lk-. S. Ch. 98. StoeJcs V. JJohon, 17 Jur. 223, 22 L. J. Ch. 884. 9 y/ ^i>, ^^ /^/ M W/ om. IMAGE EVALUATION TEST TARGET (MT-S) mo 7 /. f^f %' 1.0 IS K 12.2 1.4 1.6 — = — I.I 1.25 ,Tf^ ._ — ► Y^ ~ V Photographic Sciences Corporation 23 WEST MAIN STREET WFBSTER.N.Y. 14580 (716) 872-4503 33^ Inquiry as to previous notice. Assigument under J udicaturo Act. THE LAWS OF INSURANCE. No person should take an assignment of a policy of insurance without first inquiring of the insurance company whether they have prsviou.sly received notice of any assignment, charge, or lien thereupon. When the notice has been given to the proper person, he cannot disregarc! it without making himself liable to the assignee ((/). If he made, even though unintentionally, a false representation to an intending assignee as to previous notice, he is personally liable for the loss such assignees may sustain (r). By the Judicature Act, 1873, s. 25, sub-s. 6, any absolute assignment in writing, not purporting to be by way of charge only of any legal chose in°action or which express notice in writing has been given to the person from whom the assignor would have been entitled to receive the same, will pass the legal right and power to give a good discharge for the same witliout the concurrence of the assignor. This provision extends to the assignment of a policy of assurance which is a chose in action (s). It is in one respect narrower than the provision contained in the I'olicies of Assurance Act, 1867, inasmuch as it is limited to absolute assignments only, whilst the Policies of Assurance Act extends to assignments which are absolute as well as to assignments by way of charge. In another respect, however, the provision of the Judicature Act is wider than that of the Policies of Assurance Act, because it extends to " any legal chose in action," and therefore to all policies. The Policies of Assurance Act, on the other hand, extends only to policies granted by a corporation, association, society, or company (t). iq) millams V. Thorp. 2 Sin. 257. Baldn-hi v. BnUnndeu, 2 \'ein. 536. LobarU v. Lloyd, 2 Beav. 376. Andrevs v. Bousfield, 10 i>eav. 511. ■' {)•) Lyde V. Barnard, I M. & W. loi. Swan v. Phillips, 3 N & P 447. Jiiirroirs Y. nock; loYef. 470. Baniahire v. Bolton, L U 8E.1' 294, 38 L. .T. Ch. S94, 21 L.T. N. S. 50, 17 W. II. 986. («) LxpiMtelhhetwn, 8 Ch. D. 519, 39 L. T. N. S. r, 26 W. R. 843. (0 30&31 Vidt, c. 144, s. 7. ^^ CE. int of a policy of f the insurance y received notice Bupon. When the person, he cannot If liable to the . unintentionally, ig assignee as to for the loss such 25, sub-s. 6, any porting to be by )se in action or een given to the ould have been I the legal right e for the same ■. This provision 3y of assurance i in one respect in the I'olicies of t is limited to .he Policies of nts which are way of charge. ovision of the the Policies of any legal chose The Policies of xtends only to ition, society, or BilUngdey, 2 \'ein. ('••s' V. BouxfieU, 10 PhilUjjs, 3 N. & P. Bolton, L. R. 8 E.,, 9S6. 5. r, 26 W. K. 843. DISPOSITIONS OF LIFE POLICIES. 33/ An agreement in writing, without delivery of the What is not policy, to execute on request an effectual mortgage of a *° assignment life pciicy as security for a loan is not an assia^iment ^f' As"u?anc'e'' within the meaning of the Policies of Assurance Act, ^'^' '^^^■ 1867. Consequently notice to the assurance company of such agreement gave no priority over a prior equitable mortgagee who had given no notice, but who had pos- session of the policy (u). It has been held in America that delivery of the policy itself is necessary (inter alia) to constitute an assignment (x), but this does not seem to be the rule in England (y). Deposit of policies with a creditor as security coupled with a request by letter to him to instruct his solicitor to prepare the necessary assignment, is not an equitable assignment within the Policies of Assurance Act 1867 (30 & 3 1 Vict. c. 144). Consequently, written notice to the company will not in such a case be enough to enable the depositee to give the insurer an effectuiU discharge Jessel, M.E., said : ''No consideration was stated, and ' there was no agreement to assign. There had been a deposit, and there was to be an assignment only if the plaintiff (the mortgagee) thought fit. For some reason or other, he did not choose to take tlie assignment, but was content to rely on the deposit "(^). The Court however, considering that sufficient proof had been criven that the money was really due to the mortgagee" dis- pensed with the executors of the mortgagor (by 15 & 16 Vict. c. 86, 8. 44) (a). But it was doubted by the Court of Appeal whether ti.is course was admissible (&). ("I ^>"n,^ry. Chrk g Ch. I). 137, 47 L. J. Ch. 692, 27 W I{ t,, "ap:;^i?^^^^^ Ch. 5;;. (I>) See per Cotton and James, L.JJ., in Websffr v UrltiJ, M„ • sfflj ISO, D, 69,49 h. J. Ch. 769, 43 rl T l^^'sfyi^'^s ^77 818 liut«ee aho CuHimy. Caledoiuan, igCh.D. Ku ^l L I Oh Sn 30 W. K. 125, 45 L. T. N. S. 662. ^^^' ^ • ^°' Y 9 338 Equitable assignment. Bare deposit of policy. Interest on »nui assured. THE LAWS OF INSURANCE. A covenant to effect fi policy by way of security is not enough of itself to vest the policy in the covenantee (c) ; it does not seem to operate as an equitable assignment thereof, or to give him a lien thereon. But in Ward v. Ward (d), a covenant by a defaulting trustee to effect a policy on his own life was held to entitle the cestuis que trustent to the proceeds against his creditors. Mere deposit of a policy with a creditor as security, notice whereof was given to the insurers after the death of the assured, is not sufficient to entitle the creditor to demand payment from the insurance com- pany without the concurrence of the debtor's legal personal representative. And if the creditor makes good his claim, the insurers will not be liable to pay interest from the due date where the delay is owing to the creditor's neglect to clothe himself with the legal title to the money {e). IK||i«m>ii4lt 'III 11, tMnfm lilifj Directions to attorney to apply insurance money in payment of debt, not an assignment to ereditor. Position of assignee no better than that of his assignor. When the owner of an insurance policy, after loss, places it in the hands of an attorney for collection, with instructions to apply the proceeds in payment of his debt to a third person, this does not constitute an assignment to such third person (/). The assignee of a policy will not be in any better position than the person who effected and assigned it to him {g). Thus B., at the instance of the agent of (c) Lvet V. Whi'tely, 2 Eq. 143, 35 L J. Ch. 412, 14 L. T. N. S. 472, 14 W. 1{. 534. See, however, Ex parte Caldwell, 20 W. J!. 363, 13 Eq. 188. {(l) 18 Jur. 539. (e) Webster v. Ihitkh Empirr, Mutual, 15 CU. D. 169, C. A. (18S0), libi supra. iiiiiiliw (ray of security is policy in the operate as an give hiiu a lien it by a defaultinj^ life was held to proceeds against ditor as security, surers after the it to entitle the ! insurance com- le debtor's leual his claim, the }st from the due jreditor's neglect I the money (e). policy, after loss, y for collection, s in payment of ot constitute an be in any better . and assigned it of the agent of 2, 14 L. T. N. S. 472, well, 20 AV. J!. 363, D. 169, C. A. (iSSo), , 724. J. Cli. 337. Jiritish , S. 422, 38 L. J. Cli. Id, 4 H. li. (;. 484 339 DISPOSITIONS OF LIFE POLICIES. the British Equitable Insurance Company, proposed to insure his life, answered the questions as to his health satisfactorily, and mentioned D. as his last medical attendant, and, the medical officer of the company reporting favourably, the proposal was accepted, and a letter written giving notice that the office would not be liable for any risk in consequence of a variation in health between the acceptance of the proposal and the actual receipt of the first premium. B., becoming sud- denly stout, was alarmed, and consulted W., a physician, who told him he was in danger, and wrote to D. to that effect. D. taking a more favourable view, B. then paid the first premium, and never communicated to the office his consultation with W. ; and with the receipt for suck premium was ^ letter expressing that if any alteration in health had occurred the policy would be void. B. assigned the policy as security for a debt to the V. of N". Eailway Co., represented subsequently by the Great Western Co., and died suddenly of disease of t'^e heart, and a jury returned that verdict. An action was brought •on the policy in the name of the widow; and it was held that the non-communication by B. to the office of the fact of his consulting W., although he was not bound to say what Yi. told him, vitiated the policy, and that the plaintift' was in no better position than B. (h). The assignee is liable to all the defences which the insurers would be entitled to raise against the assignor • for if the policy be affected by any vice in regard to the assignor, it is also similarly affected as regards the assignee. So if the assignor have effected the policy PoHcy effect by fraud practised against the insurer, and subsequently ^^ f'-»«d ^ ' assigned and the assignee be at the time ignorant of Jer:;roney tlie fraud, and the insurer pays the assignee, both bein^ »'"''• an an « 9 9 «. 9 •dwialwitCa Will 11 w-'*« -*■■' 340 THE LAWS OF INSURANCE. Duty of insurer knowing as8ig;ueo in deceived. in equal ignorance of the fraud, the insurer may recover from the assignee the money paid under such mistake (i). But if the notice of assignment j'iVen to the insurer discloses on the face of it that which induces the belief that tlie assignee has been deceived in accepting the assignment, the insurer is bound to inform the assignee of the real circumstances ; and, if he does not, he will be estopped from taking advantage as against the assignee of the equities existing as between the assignor and himself (k). Aggravation of Where the health of the life grew worse between illnoBs between acceptance of life and pay- ment of premium. Jioiid jfdr purchaser. Keceipt of premiums by company after knowledge of invalidity of assigned policy. the acceptance of the risk and payment of the premium, but the aggravation of the illness was not disclosed to the insurers, the policy was held vitiated, and bond fide purchasers for value {I) without notice were held to have no title to recover thereon {m). If after a policy has been assigned the iisurance company become aware of objections to its validity so clear and conclusive that the mere statement of them is enough, there may be a duty of communication to those whom the company know to be interested in the policy. It would not be consistent with good faith that they should in such circumstances go on receiving the premiums on a policy that they intended to challenge in the end {%). In certain companies (mutual) the assignee of a policy, by payment of premiums, is held to have con- tracted to become a member of the company, and is (/) Lefevre. v. Boiih-, i \i. J. N. S. K. B. 199, 3 B. & Ad. 877. (/i) Mangles v. Dixon, 3 H. L. C. 702. {I) For precautions to be observed by purchasers or mortgagees of life policies, see 2 Dav. Prec. Coiiv. pt. i, p. 654 note. (m) BritUh Equitable \. Great Wentern Baihcii/ {iS6g), 28 L. J, Ch. 314, 17 W. R. 561, 20 li. T. N. S. 422. Policies of Assurance Ait, 1867, explained as not giving the assign a better title, but only as dispensing with administration whbre the assign had a complete title. (11) Scottish Equitable v. Bidst, 4 C. S. C. (4th series) 1081-82, per TiOrd President. the insurer may ' paid under such ren to the insurer induces the behef in accepting the form the assignee loes not, he will be ainst the assignee the assignor and w worse between it of the premium, I not disclosed to ted, and bond fide Ace were held to led the iisurance to its validity so ;atement of them iommunication to interested in the with good faith s go on receiving inded to challenge le assignee of a eld to have con- company, and is 3 B. & Ad. 877. < or mortgagees of life //.y(i869),38L. J.Ch. :ies of AeNurance Ait, tter title, but only as lad II complete title. Ii NSiies) 1081-82, per DISl'OSITIONS OF LIFE I'OLICIFS. 341 liable to be entered on the register as a contributory : but if the directors refuse to register the assignee as a member of the company, the Court will in certain cases hold him not to have become a contributory (o). On the other hand, assignment before winding up of Assignment such a company relieves the assignor (p). JfjIXg up. The Trustee llelief Act, until extended by the 6th Payment into sub-s. of a. 25 of the Judicature Act, 1873, did^^^'J^^y not enable an insurance company, having notice of "°'^.«'* iVustee conflicting claims, to pay policy moneys into court, ^^"'^ ^°'' unless the moneys were the subject of a trust (q) ; but, inasmuch as, by the Policies of Assurance Act, 1 867, (r), an unsatisfied mortgagee of a policy might sue the insurance office in his own name on his assignment, the insurance office would be justified in requiring evidence that an assignment by way of mortgage of which they had notice was satisfied before they "paid over the money to a subsequent assignee of the policy (s). And now, subject to the Rujes of Court, made under the Life Assurance Companies (Payment into Court) Act, 1896 (59 Vict. c. 8), any life assurance company may pay into the High Court any moneys payable by them under a life policy in respect of which, in the opinion of their board of directors no sufficient dis- charge can otherwise be obtained, or, where the head office of the company is situated within the jurisdiction of the Chancery Court of the County Palatine of Lan- caster, either into that Court or into the High Court, and the receipt or certificate of the proper officer shall :1 47 ,^? T^>jP*';*® ^"^^'^'^^^^ (1882), 20 Ch. D. 403, 51 L. J. Ch. 579, ij. 1 , li . o, 112. ip) Ex parte i?/-oi«M (1881), 18 Ch. D. 639, 50 L. J. Ch. 714,45 L. T. i>. h. 269, 30 W. It. 30. (7) Matthew V. Northern, ,i-c., Co., 9 Ch. 11. 80, 38 L. T. N. S. 468. 47 L. J. Ch. 562. (r) 30&31 Vict.c. 144. (») Re Haycock's Policy, i Ch. 1). 611, 45 L. J. CIi. 247, 24 W. II. m Mi 1 "^1 342 !«■.. ►■ ; :" : I ; ii ilMiwiMl •»• *i. ., ,., --, ''"•HI* wiig'jSS TIIK LAWS OF INSUUANCE. be a suflicient discharge for tlie moneys so paid. Life assurance company in this Act is exclusive of a regis- tered friendly society. Validity cf It does not matter if tlie last assignment of whicli claim not notice lias been given to th(i insurer is over twenty Sh'^of timo y^^^^ °^^^' ^°^ "0 demand can be made under it until between notice tlie event happens in wJiich the policv-monev is to of assiRnmeut i i t tt- , , -r^ . j *w, uu and death of OGCome (lue. In Hai/covlc s Policy twenty -four years ftssMied. ],{ij elapsed between the assignment by way of mort- gage and the death of the assured. The latter had subsequently to the mortgage assigned the policy to a third person, and he to the petitioners in that case. But absence of claim on the part of the mortgagee was not held to be any evidence that the claim had been satisfied, and no suggestion was made that it was barred. And the policy-moneys were only paid out of court on the per- sonal representative of the mortgagee disclaiming any interest therein. Policy payable An endowment policy payable to the insured or his to iDsitrod or »n ■* ■■ i i i* his assigns if assigns, it lie should live to a specified time, or, if he spocified^'time, ^^'^"^'^ ^^^ ^^^0^6 that time to his legal representatives, befire ''t^'® ^^ assignable ; and the assignee alone would be en titled..- his°iegai to receive the sum insured, in case of the death of the KS'abiJ." "^'^"^^^^ before the day named (0- Specific A contract to assign a life policy may be ordered L'nlrtT ' °' ^° ^^ specifically performed {,(). And under such a assign. contract, unless otherwise agreed, the assignment must Tree from be free of incumbrances. So if a contract is made to incumbrances, .^gsign a policy, and the assignor had (unknown to the would-be assignee) agreed that one-third of the premiums should be a charge on the policy payable at his death, the burden of such charge must be satisfied by the assignor and not transferred to the assignee {x). Such (0 MutualLife Insurance Co. v. Armstromj, Fed. Itep.Dig. (1887-91), (u) Asldey v. Ashley, 3 Sim, 149. Goodsall v. Webb, 2 Keen 99. (a-) GatuyeH v. Flatlier, 34 Beav. 387, per Komilly, J\I.R. litliii eys so paid. Life i.ltep.Dig. (1887-91), DISPOSITIONS OF LIFE POLICIES. 343 contract passes all the benefits attached to the policies, such as bonuses, &c. (v/), v/ithout further words. A policy effected on own life at an annual premium, Bankruptcy of on bankruptcy of the assured passes to his trustee, p/y^nj „f however small be its apparent value at such date, and premiums by even if there are considerable arrears of premium due *"'^°®®' thereon. If he disclaim, the grantee can do what he likes about it (z). If the assured, instead of delivering up the policy as part of his effects, secretly assign it to another person, who pays the arrears of premium, and upon the death of the bankrupt receives the sum insured, this sum, less the amount of arrears so paid, may be recovered by the trustees in bankruptcy as money had and received to their use («). So also if the bankrupt surrender the policy and procure renewal to one creditor in consideration of his accepting the composition offered (b). If a policy be assigned with other property, that covenanf to the latter assignment should be avoided will not affect '^^^P P°"<^y 1 . , . , on foot, the assignee s right to the policy (c). An assignment of a policy of assurance by the cestui ijiic, vie ought to contain an express covenant by him that he will not do anything to vitiate the policy or prevent the assignee from receiving the money. A covenant simply to do all things necessary to keep the policy on foot is not broken by his suicide, although Not broken by suicide of covenantor. 'as Mi » ft (,(/) Cotu-tueyv. Ferrars, i Sim, 137, 5 L.J. N. S. Cli. 107. Parkegy. JJott, 9 Him. 388. (s) lie Leurmouth, 14 W. It. 628. (a) ikIioiuUer v. Wace, 1 Camp. 48C. See West v. Reid, 2 Hare 256, and Penadl v. Millar, 23 Beav. 172, 5 W. R. 215, 29 L. T. 35, where assignor had covenanted to keep up policies and assign had paid the premium. See also Murvidge v. Bow, i Y. & (J. Oh. C. 183, 583, I j L. .1. Ch. 173, 8 Jur. 299. Connecticut Mutual Life v. Burruayhs, 34 (Jonn. 305. {()) l^eyer v. Browne, 28 13ear. 391, per Koniilly, M.R. ((■) lonterv. Bobertii, 7 Jur. N. S. 400,9 W. 11. 605. See Fennell v. Millar, ntpra. Bromley v. JSmith, 26 Beav. 644. 344 TIFK LAWS OF INSURANCE. |( = 1,' i "ll-W.II>«l«l'*»* lltatrlliiR ""^ tlie assignee will thereby lose the benefit of the policy (d). ♦''ovenant to keep policy on foot whether broken by going abroa >. Breach of conditions of policy by covenantor. Covenant to keep up policy Renewal obtained by covenantor. "Such a covenant may practically prevent the cestui que vie from proceeding to any British colony, or even from leaving Europe; for most of the insurance offices make residence or travelling out of Europe vitiate a policy, and a Court of Equity will restrain a man from committing a breach of his own covenant Permission to ride or travel abroad in healthy lati- tudes, may, however usually be obtained from the ofHce on payment of an increased premium ; and a covenant to pay an mcreased premium, which may become payable in the event of the assignee allowing the cestui que vie to go abroad, should be inserted in the assignment. Of course the assignor of a policy has notice of all its conditions, and will, if he avoid tlie policy by breaking any of its conditions, be responsible under the ordinary covenant not to vitiate the policy but where one covenanted that he would appear at anv insurance office within the bills of mortality, and enable the covenantee to insure his life, and in pursuance of his covenant appeared at an office which subsequently granted to the covenantee a policy containing a con- dition that the covenantor should not go beyond the limits of Europe, it was held that the covenantee ou-ht to have given the covenantor notice that the insurance had been effected on those terms; and that, not havinc. done so, he could not recover damages for the avoidance of the policy by the covenantor quitting Europe (e) But if the covenant be explicit and the covenantor have notice of the terms of the policy, the covenant will be construed strictly, and the covenantee may enter up a judgment and issue execution against the covenantor for neglecting to keep the policy on foot III W) Borrodaile v.Hunter, 5 M. & G. 639, 12 J. .J. C. P 22? <: Srott ?b. 33^! • ^ "'■• ^^' ^"''""^ '• ^^'•'•«'^«''^. 'o 13eav. 33"^;6 L J (c) Vyse V. Wakefield, 5 M. & W. 442. S*'-""'" -Hsfafe,^ S'CE. B benefit of the illy prevent the British colony, or of the insurance ; out of Europe ity will restrain a is own covenant. in healthy lati- ed from the ofHce ; and a covenant ch may become lee allowing the 3 inserted in the of a policy has if he avoid the s, be responsible iiate the policy; Id appear at any ality, and enable in pursuance of ch subsequently ntaining a con- go beyond the 3venantee ought It the insurance ihat, not havinfir )r the avoidance ing Europe (e). the covenantor Y, the covenant ovenantee may ion against the policy on foot, J. C. p. 225. 5 Snott l^av. 335, 16 L. J. 345 DISPOSITIONS OF LIFE POLICIES. notwithstanding he may himself have obtained its renewal " (/). An action will lie for breach of covenant to effect and settle a policy, and the damage caused by the breach may be proved for (f/). Insurances under the Customs Annuity and Benevolent Non-assign. Fund (56 Geo. III. c. Ixxiii., 34 &; 3? Vict. c. 10^ and "^'^"^^ ,,1 p o J.1 » ot "" 3 ' ii'i'. <^. njj **"" insurances. iiules ot 1872 thereunder) are not part of the assured's estate. He has only a limited power of appointment over the funds secured thereby. On making certain payments during his life he acquires a right to appoint a sum of money en his death either for the benefit of liis widow, if any, or, if not, of his relatives and nominees it' accepted by the directors (7a). The appointment being limited, no legacy duty is payable thereon (i), but succession duty is payable (/.;). If no nomination is approved and registered during lifetime, but the assured makes a bequest of such policy, the legatee cannot take, and the widow or the assured's children, if any (his wife being dead), are entitled (l). But irrevocable assignment of a certain portion of the sum insured is permitted under certain restrictions by the said Kules (m). The effect of mortgage of such permitted portion would be a disposition pro tanto ; and his mortgagee's interest, if any, would be subject to the dispositions of the assured's will, or the rules of the society. The J/1 ^^Y'""'P l- -yurray, 8 Ha. 214 (1852). Davidson'.s Precedents, 4111 ed. vol. 2, p. 656. 4M8 W^^lf \^^'''""'' '"^ '^^- ^' 6°3. 49 L. J. Ch. 557, 43 L. T. N. S. (A) Attor net/- General v. Abth/, i H & C. 266, 32 L. J Ex o (0 A norm ij. General v.Jfousell, TiMey on Stamps, 685 (2nd. ed) yn Attorneij- General v. Ahd>i, supra. Succession Duty Act (16 & 17 'let, C. 51), 8. 17, ' N.'s. 8i' ^/'^J>J^";';""«"^«' 23 Ch. D, 23s, 52 L. J.Ch. 44, 48 L. T. (m) M'Leaa Trtists, 19 Eq. 274, per Jessel, M. 1!. (1874). » ; I II f* II . i ,1 346 THE LAWS OK IN.SU1{AN( E. Friendly (iocieties. assignees or mortgagees of such a policy will not be liable to succession duty (n). The assured may settle his share of the benevolent fund to trustees, for the benefit of his daughter on her marriage. Such settlement is within the words of the rule, " for the benefit of the child or children." No admission of the trustees or the husband as nonii- nees, nor any consent of the directors of the fund, is necessary (o). Insurances made under the Friendly Societies Acts are not assignable, and we believe are treated by the Registrar of Friendly Societies as non-assignable. ' The (assured) member may, however, by writing under his hand, delivered or sent to the society at its registered office, or made in a book kept at that office, nominate, with certain exceptions, any person as the recipient, in case of liis (the member's) death, of any sum from the society not exceeding ;{:ioo. But such nomination is revocable in the same manner. It seems only to amount to a power of revocable appointment, and no contract not to revoke would bind the societv. This power of nomination is confined to members who have attained sixteen years of age (p). Where assurances are made on the lives of children under the Friendly Societiec Act, 1896, the only people who can receive money are the parents, or their personal representatives, s. 63, unless the person insuring has an interest in the life of the person insured, s. 6y. .x.uuu.jr The rules of an unregistered friendly society, relating ti°ttconteacf" *^ Pay"ient of death allowances, declared that the with insured. Committee might pay to such person amongst certain specified relatives of the deceased member as they might Insurances ou children's lives under ten. Eules of friendly («) M'Ledii's Truxts, supra. 15 & 16 Vict. c. 51 (Succession Duty Act), 8. 17. (0) Pomr.k's Poiuji, 6 C'h. App. 447, 25 L. T. N. S. 233, 19 W. 1{. Soi. (P) 59 -i^ 60 Vict. c. 25 and c 26. -assignable. The to members who er as they might DISPOSITIONS OF LIFE POLK'IKS. think tit, unless the member had otherwise beiiueatiied it by will, and that after such payment neither the (■(Humittee nor the society should be liable to any further claim ; upon the death or the member intestate the society paid his sister, and the plaintiff as the administrator of the decensed sued her for the money so paid, but he failed to rocover, since the rules constituted the contract between the member and the society (7). Insurances effected through the Post Office are not assignable, but a power of nomination is given. The same rule applies to the Customs ]ienevolent Fund and, it would seem, to various Indian Civil Service Kunds. Assignments of l»ost Oflice insurances or annuities are subject to the provisions of 27 & 28 Vict. c. 43, s. 11, and the Eules made under the Act (;•). The general provisions of this Act have been amended by 45 & 46 Vict. c. 51, 50 & 51 Vict. c. 40, and $6 i^ 57 Vict. c. 69. The assignee cannot recover on a policy void for fraud of the assignor, or for misrepresentations in the proposals (.s). In an ordinary life policy the assignee for value can recover by the terms thereof. 347 Post OfTlce iusurances. Assignuieut of void policy. The word "legal" in a proviw which avoids the pelicy. "except it shall have been legally assigned," means lawful, not legal as opposed to equitable (f). Authority to hold the policy for any bills or notes cashed for the grantee has also been held to be an Legal means lawful. Authority to hold amounts to assignment. (7) A.ihl)i/ V. Cbatin, 21 Q. 15. D. 401, 55 L. T. 224, 57 L. J. C. B. 491, 37 ^V. ti. 140. (/■) 30 & 31 Vict. c. 144, 8. 8 ; 16 & 17 Vict. c. 45 ; 27 & 28 Vict, c. 43- («) British Equitahle v. Great Wentern Uailwau, 19 L. T N S 476 per Malins, V.C. {1869), aii'd. 20 L. T. N. S. 422, 17 W. R. 4:5, ^8L. .l" (0 Bujuur V. Professional, 25 Benv. 599, 4 .Tur. N. S. 841, 27 L. J. ( li. 817, 32 L. T. 25. ii )i II II St m I (■MOM >»« Inf.*"*'""! *»■» <«« ■■■•» "lit.. jir. .'HMI ...»i» T "H Ifl !«-•»> Mklt'j 'J ft: 'js; Si ;:'«» ra;: ^a ■? '*.' »: (a.* lb H'-'Iti, iMidtV Insurers cai>.'t avoid policy Ri.;i claira iidvanca. liankruptcy. 3-'^8 THK LAWS OK INSUKANCK. assignment within the terms of a policy containing the following words : " unless it shall have been assigned for valuable consideration six months before death " {n) The insurers, if they make advances on a policy, are third persons for that purpose, and cannot avoid the P9iicy and claim the debt {x). But if the policy pass by operation of law to a trustee in bankruptcy, this is not an assignment within the above exception. ^ent af '^"' ^^ assignment of a policy which is voluntary and void 'nteeedent'' ""^^^ ^^ "^^^^' ^' ^' "^^^ uevcrtliebss be allowed as a aebt** *"' charge on the policy to the extent of an antecedent debt, in consideration of which it was asssigned {y). An assignment by way of charge with a trust a^ to the surplus in favour of a third person has been held void against creditors as to such trusts {£). So will be assignment by a bankrupt of an undis- closed policy (a). Assigumeut by felon. But a felonious taking of property so far raises a debt as to support the assignment of a policy by tlie felon before conviction as security for the sum taken (y). Sgnor":*^ ^ husband insured his life for the benefit of his wife, ai&utio^ ^^^" murdered him, and her assignee and the executors of nssigne °. o^ ^^'^^ deceased sued the insurers for the policy-money : {u)JonenxComohdated, 26 Beav. 256, 5 Jur. N. S. 214, 28 L. .1. Ch. 66 32 L r 307. Moot-e v. Wookc.j, 4 E. & B, 243, 24 I . .1.0 1) l?/;-.*^"'-..^: ^i .468, 24 L. T. 155. 3^^ R. 65, 3 C. i Kep. 207: 19 L TN s'i '' ^ ^'^' ^^^' ^^ ^^' ^' ^^^' "' '^ ^^- ^^- '^• A i^:. P^;r^. i ^s"- '''^ ' '''- ^- ^- •^^^^ ^^ ^- •■• 69^^7 t;'N.V^r^ iv. k 8o["- '''' '' '''''■ '^7' ' ^- ^- ^- ^- (^) JllaoawLys Trmh; 5 Do G, & Sm. i, 15 .Jur. loos. « .Schomller v Hj/c, i Camp. 487. Pc S.Jth, 12 \V. R. 534. (h) Uomie V. La!,h.,si Beav. 351, u W. R. 5, G L. T. N: S. 730, 31 L,. .(. L'i. 757, ^ .Jur. N. S. 1028. CE. icy containing the ! been assigned for 3re death " (n) 3 on a policy, are cannot avoid the 'f law to a trustee iment within the oluntary and void be allowed as a 1 antecedent debt, ned (y). v'ith a trust as to n has been held I (z). ipt of an undis- '■ so far raises a a policy by tlie be sum taken (u). snefit of his wife, id the executors e policy-money ; DISPOSITIONS or LJFE POLICIES. 349 . N. S. 214, 28 L. .1. 5. 243, 24 I.. J. Q. I!. 5, 3 C. I; I{ep. 207. h- 53. 17 W. 11. 26, N. S. 1247, 29 L. .1. V. 637, 4 L. T. N. S. r. 1005. ', 12 W. E. 534. ;, 6 L. T. N. .S. T]Q. the assignee was not allowed to recover, it being against Married public policy to allow the wife or her assignee to receive Jv,"eT'\ any benefit from her felonious act, and the trust in her 188^''^ '^^' favour under the policy created by s. 11 of the Married Women's Property Act, 1882, was therefore incapable of performance, and the policy-money thus becoming part of the estate of the deceased his executors were entitled to recover (c). Ciift of a policy is not valid against creditors, if the Gift of policy, settlor was at the time insolvent (d). But once com- pletely made, it is not revocable by the donor (r). To constitute such a gift the policy may simply be delivered over with appropriate declarations (/), or be assigned in writing (j), or declared to be held by the donor in trust for the donee (h), or directed to be held by a trustee (i), an insurer (/.-), or a bailee for a particular purpose. Wliere a man had made a settlement on his first Expression of marriage, and, being a widower and desiring to marry ^'^1^^ ma^*""'^ again, wrote to one of the trustees thereof saying that ain?«nt to he desired to make a settlement (of six policies on his "''"°"""""* own life) on the children by the first marriage, and handed three to one trustee, and told him that the others were in a bank as collateral sc3urity for a loan, but that he would pay off the said loan, but made no legal assignment, and no notice was given to the insurers or the other trustee, Kail, V.C, held : — {i) That the evidence showed a complete assign- ment. i-m aasigument. ((•) C!<'(ir»i-v.MHt,i((l ]{,„errf Fiu)iKdT.(i^q2),i Q. 15 147 66 L T 221, 61 L. J. Q. !?. 12S. V ^ / V . 14/, 00 1^. 1. ((/) Mdfiwdey'H Trust, 5 Do G. & Sm. i, 15 Jur. 1005 in Ihnnmens v. //o;v, i Ex. D. 169, 34 L. T. X. S. 407, "4 W \\ it) J^nrUm y lt»«W.«ailf 'k MtmuMWMK T^^s I Assignment aud chnrgu by married ^5^ THE LAWS OF LXSUKANCE. Tf a husband, without fraud, induce his wife to assi<.n or incumber lier interest in a policy on his life sho trust policy, caunot sct the transaction aside (a), as she can deal with her interest, if any (b). But settlement of policies on the husband's life to the wife's separate use does not create a trust for separate use till his death, and the wife cannot charge such policies while her husband is living (c). Policy for wife's benefit not actually issued till death of h us baud belongs to Trife. A husband, who had already eflected a policy in favour of his wife (under Married Women's Property Act, 1870), took steps to effect a second similar insur- ance with the same company. The agent to whom he gave his instructions and paid the first premium absconded, and the insured died insolvent before the policy was issued. The written proposals contained no direction to draw the policy in favour of the wife, nor was there any written evidence of the deceased's intention to that effect. The company admitted liability, aud prepared a policy dated before the death without reference to the wife. Tlie creditors in an administration action claimed the moneys the-'3under, but Pearson, J., held :— (1) That a policy issued after death must be treated as non-existent at death. (2) That the only question was the form in which the policy ought to be. (3) That evidence was admissible of the husband's intention and instructions given by him in that respect (d). (4) That the evidence adduced proved that the policy was intended to be in the wife's favour, and {a) Godfrey v. WUkov, 70 Ind. 50. N.^s! 7^ri3 W.Irs ^' ^- '^- ^ ^- '^'' 3^ ^- ^- ^^- ^^5. '0 ^- '^• (c) King V. Lucas 23 Ch. D 712, 53 L. J. Cb. 102, 31 W. K. 904. {(i) ^ewmun v. Belsten, 76 L. T. J. 228, affd. by 0. AT, 12 Feb. 1884. I must be treated le form in which L. J. Cb. 665, 10 L. T. DISPOSITIONS 01' LIFE I'OLICIBH. that flhe therefore was entitled to the moneys as against tlie creditors. 3S9 By 43 & 44 Vict. c. 26, the facilities given by the Married Married Women's I'roperty Act, i8;o, to grant policies Siesof for the benefit of married women and children in England a° ° *' " and Ireland were extended to Scotland. saurance (ScotlaudJ Act, 1880. By s. 2 of this Act a policy effected by a married Conatruotion man on his own life for the benefit of his children "^ ^''*^"°" '■'' shall be deemed a trust for them, and vest in him and his legal representatives in trust, or in any trustee nominated in the policy, or appointed by separate writing duly intimated to the assurance office. The expression "married man" in this section includes a.. Married widower, and the trust vests in the erecutors of the "*?" " '""^'"'''^s insured instead of in his testamentary trustees unless the latter have been specially appointed to deal with the policy ; and if a widower marries again, the second wife by his death acquires no jus rcHctae to this money (c). A policy effected by a husband upon his own life for the benefit of his wife under s. 2 of this Act may be surrendered by the trustee, who holds it with the concurrence of the wife ; and (per Lord Shand) it may be surrendered without the wife's concurrence, unless the insurance company have notice of any intended breach of trust (/). With few exceptions, fire policies, unlike life policies. Life policies cannot be mortgaged, nor can they be assigned 3out"' separately from the property to which they relate, or i"surer\s even with it, save by the consent, which cannot be com- ''°"^®''*" pelled, of the insurer. The person to whom a life policy belongs, however, is entitled, by act inter vivos e) Ke7inedy's Trustees v. Sharpe, 30 Sco. L. R. 89. ,/■) Schumann v. Scottish Widows' Fund Societii, i Bciies) 678, 23 Sc. L. K. 474, Societif, 13 C. S. C. (4th [it. ■ iii'iifi' ' Mil! ^^° THE LAWH OP INSUHANCK. or by will, to make an absolute or conditional disposi- tion of the policy-moneys. lli^Sy'^ " ^ife policies may be effected or mortgaged— (i) As the sole security for a debt or advance. (2) As a further security, when the principal seen- rity for the debt is property in which the mortgagor has a limited or terminable estate. In the first case, the borrower agrees to effect or to keep up a pre-existing policy upon his own life lor the security of the mortgagee. The vahie of the ■security increases daily with the nearer approacli of tlie inevitable event upon which the policy is made. ^ The mortgage of a policy of assurance is similar in Its eflects to any other mortgage. The mortgagor may redeem the policy ; and his legal personal representatives or the assignee of his equity of redemption, are entitled to any surplus proceeds of the policy, after payin- to the mortgagee his whole debt, interest, and costs. '' Such a Dlicy may be kept up by the mortgagee if tlie mortgL^or fails to do so, and the former is entitled without special agreement to add to the amount of his security the premiums paid by him, with interest thereon, on the ground that he is justified in using all proper means for preserving his security (r/) The premiums advanced and interest would form a charge on the mortgaged policy, but could not be recovered against the mortgagor personally (h). Where a mortgagor of a policy who ^: ' becuine bankrupt continued to pay the premiums, although by the bankruptcy he was relieved from the obligation to Mortgagee can keep up policy. I'll 2 ^^'J^'''^"" (4tl» ed.), pi. 2, p. 63. (h) /bi(L, note (.s). ^ nditional disposi- WHi'osrnoNS of life policies. 361 do so, it was held (i) that the premiunis so paid were in the nature of salvage-moneys, and ought, as against the mortgagee, to be repaid with interest out of the pnlioy-tnoneys ; but this decision has been ques- tioned (k). These mortgaged policies must be carefully dis- Voiicios ^-iven tinguishod from policies on the life of the debtor Jean-f "L i'Hected or kept up by the mortgagee as a collateral »•'« wmn as security at his own expense and risk without any Sby'^-miuor contract, express or implied, between him and the °;;',^;j'„'; j^r inonimgor. In such a policy the mortgagor luis no ^"cb purpose, intc'-est whatever, and it may be disposed of by the mortgagee just as he likes. It is only a collateral provision made by him for his own benefit. Keceipt of the amounts assured thereby would be no discharge to the mortgagor's estate, and he cannot as of right cliiim any benefit therefrom. On the other hand, the mortgagee, in case of such a policy, cannot make the mortgagor pay the premiums (0- Where a creditor effects a policy of insurance, either When policy directly or indirectly at the expense of and by arrange- " '^*'^^°^'^- nicnt with his debtor, and by way of indemnity to the creditor, the policy, on payment of the debt, nmst be delivered up to the debtor (m). This is also the case where the relation of debtor and To whom creditor arises upon the grant of a life annuity (/i), by gmnfeTof and an insurance has been similarly effected bv the ^'^'^^J^y '' '' belongs. (/) Hhtavmany. Britkh Empire, cOc, Co., 14 Ei. 4, 41 L. .J. Ch. 466, 26 h. T. N. S. 570, 20 W. II. 62c. t I t. t 4 , desirable if not necessary : Triston v. Uurthj, 14 13eav. 232. (m) Lea \ Hilton, 24 L. T. loi, 19 Beav. 324, 5 Do G. M. & G. 82?. Drmdale v. Pi'). If a creditor insures his debtor's life, and there is no evidence of a contract between the parties on the Creditor iusuring, nnd policy j_ .— — cridUo?^ ^"^ subject of the policy and the payment of the premiums, the debtor or his representative will have no claim to (o) Courteiiay v. Wrifjht, 2 Giff. 337, 30 L. J. Vh. 131, 3 L. T. N. S. 433, 9 W. K. 133. ip) (iottlM V. Crunch, 4 De G. M. & (J. 440, 22 L. J. Oh. 912, i7.;iir. 686, 704. Knox v. Turner, 5 Ch. App. 515, 39 L. J. Ch. 7150, 21 L. T. N. S. 227. 18 W. II. 873. Preston v. AWIe, 12 Ch. D. 760, 40 I. T. N. S. 303, 27 W. R. 642. iq) Ex parte Lancaster, 4 De G. & Stii. 524. (r) Ba.'^hfordv. Cnmi, 33 Jkav. 109, 9 L. T. N. S. 43, 11 W. K. 1037. (.«) Ex parte Day, 7 Ves. 302. s'CK. he money in con- jranted (o). nted with a mere e or redemption, [ in the name of the grantor, and tract between the to the grantor, it n of the annuity le grantee of au the annuity was lipulation on the tor, it was held le policy delivered luity insured tlie him saying that policy should be aid the premiums, thout having re- as held to be en- id like any other "e, and there is no i parties on the of the premiums, have no claim to Vh. 131, 3 r. T.N, s. i2 L. J. Oh. 912, 1 7. fur. r.. .r. Ch. 750, 23 L. T. : Ch. D. 760, 40 I. T. .S.43, II W. 1;. 1037. DISPOSITIONS OF LIFE POLICIES. 363 the policy (t). In Brvce v. Garden the premiums paid were carried to the debit of the debtor's account with his army agent, and he was aware that the policies had been effected ; but there was no evidence that the account had ever been shown to him, or that he knew that he was in the account charged with the premiums. Held, re- versing the decree of James, V.C., that the army agent was entitled to retain the sums received upon the policies after the death of the officer, and was not liable to account for them to his representative. Hatherley, Rule stated T,.C., .said: "There must be distinct evidence of a con- £®^,^'*""""'"y' tract that the creditor has agreed to effect a policy and that the creditor has agreed to pay the premiums, and in that case the policy will be held in trust for the debtor." Whether a policy belongs to the debtor or the Mortgage of creditor is a question which has arisen where the §^£ to creditor has himself paid the premium, and it seems •='"«^''''''- that if the policy has been mortgaged by the debtor to the creditor, then, notwithstanding the premiums have been paid by the creditor, it will belong to the debtor ; but if the debtor has only au option of purchasing the poHcy from the creditor on the debt being paid, it Dobtoi-a will belong to the creditor ; and if the debtor die before l^J^Zl^. iiis option is exercised, the creditor will bo entitled to P°i'cy from receive the insurance money for his own use {n). In the absence of contract, express or implied, a Policy ou policy effected on the life of another will belono- to t'"''''?'i? '"^ the person who effects it (,f). But if the policy l»e belongs to taken out in the name of the creditor, and the premiums poSy.*" °^ (/) Brure V. Gats/en, L. K. 5 Ch. App. 32, 39 \k .7. ('li. 334, 18 \V IX. 384. 22 L. T. N. S. 595. tiimp-Hon v. m,ll.rr, 2 L. J. >,'. S. ( 'li. 55. Brvwii V. Freeman, 4 I'u (i. ••• griret' ""'^ ^""^"^ ^^^ ^^^ ^^^to^' or he is charged with them in creditor. account, the onus lies on the creditor to prove that the policy is his (v/) ; and if it is otherwise to be inferred that the insurance was intended as a security prima facie the policy will be the property of the debtor after satisfaction of the debt (z). If the grantee of ^ntor^iife '^" ^"""^^y ^Y ^^^7 of Security, or other mortgagee • insures tlie grantor'^ ate, or if a creditor insures liis debtor's life, and pays the premiums out of his own pocket, the policy belongs to the grantee or creditor. The debtor cannot require the creditor to keep up the policy, and the receipt by the grantee or creditor of tlie insurance-money does not satisfy or discharge the debt (a). Grantee of annuity insuring Charging the debtor with the premiums in liis Charging debtor with " " ~""^ j^' >^.»iiLi»ij.o m jjjy premiums will accounts by tlie creditor will not "ive the debtor i make policy "S^^ ^° ^"6 policy in the absence of evidence that tlie Ws. debtor knew he was so charged, or that he had agreed to pay such premiums (&). If, however, upon the insurance by the creditor, it be agreed or can be inferred that the debtor shall be charged with the premiums, and that the policy is ellected as a security or indemnity, the policy or the balance of the insur- ance money after discharge of the debt will be the debtor's, and it will be immaterial in such a case that the premiums were not actually paid by the debtor, if he has been charged with them in account by the .creditor, and has not disputed his liability to pay them (c). il/) Ijf'Vi' V. Browne, 28 lieav. 391. Holland v. Smith, 6 Esp. 11. ^lorhmd V. Aw«c- 20 Beav 389. Drysdale v. i'igott, 8 De (i. M.^ ({. ^^^\%}-;r ■ ^^'' ^l^' ^7 J- i- 310, 4 W. 11. 773. c) »'//'«"« V. J%.,v, 2 Jo. & J.at. (Ir.) 603. Haicldm v. Wood- ^'}iTc\k'^'"' ^'^- ^ ^^''^''- (J'l""ketl) 3,8. l^x parte Z«.cm,'.r, 4 ue u. & hni. 524. (h) Bruce. V (Jurdau 1. If. 5 Cli. 32, mpra, note (/). (c) JloUand V. kmith, 6 Esp. n. Mrrlaud v. Jsaac, 20 l!eav. sSo. Lro.ra v. //>.«„/,, 4 J)e G. & Sm. 444. J/m.^oa v. Bhichcdl. 4 Hare 4j4, 14 i- ■'. < h. 329, 9 -'ui-. 3yo. lie Stovie'n Trusts, 1 (l\W. 9., ed with them in prove that the ie to be inferred 1 security prima 7 of the debtor, : the grantee of other mortgagee iitor insures liis out of his own ntee or creditor, r to keep up the e or creditor of or discharge the emiums in liis e the debtor a idence that tlie . he had agreed ever, upon the eed or can be arged with the jd as a security :e of the insur- ibt will be the ich a case that )y the debtor, if iccouut by the lability to pay 7. Smith, 6 Esp. II. tt, 8 De (i. M. k ({. Hawkins v. U'uod- r. 823, 24 L. T. lOI. is V. Kiiiy, .supra, ■yns, supra. Hum- .'^x parte Ldiica.-it'.r, ,(0- S((((c, 20 l!eav. 3S9. '. JJlacJcicill, 4 Hare IViists, I iiiW. 94, DISPOSITIONS OF LIFE POLICIES. 36s As the mere non-payment by the mortgagor of a Payment of charge attributable to the mortgaged property cannot E^llgee win have the effect of foreclosure, the payment by the mort- ^°^ deprive gagee of the premiums on the mortgagor's refusal will ""^'.^y!" not divest the right of the latter to the policy after repayment by him of the advances with interest (d). The circumstance that an allowance for insurance was included in the calculation of the consideration will not entitle the debtor to a policy kept up by the creditor, if there were no stipulation by the debtor for an insurance. The matter is then at the option of the creditor, who, whether he effects an insurance, or by retaining the money becomes his own insurer, is equally entitled to the benefit of the arrangement (e). If by the terms of the security itself the creditor be placed in the position of a trustee, as if the security be assigned to him upon trust, after payment of costs, to retain the debt and pay over the surplus, he must account for the insurance-money after deducting the premiums, being within the principle which forbids dealings by a trustee with the trust estate for his own benefit (/). Where creditor placed in position of trustee, he must account for policy- money after deducting premiums. An agreement may be expressed or inferred, under which the debtor shall take the benefit of the insurance. Thus an agreement (y) that, if redemption shall take What is place after the premiums shall have been paid for the ^loifc^shoukt current year, the mortgagor shall repay to the mort- ^^. re-assigned gagee such proportion of that premium as shall belong s7eurfty'!ru^*' to the then unexpired part of the current year, has '■^'^'''"p"""- 974 (4th od.). ('/) Dri/sil,,!,' V. Pif/otI, 8 De G. M. & G. 546, 22 Ben v. 218, 21; L J Ch. S7cS, 4 W. K. 773, 22 I. T. 193. i > ^ -o. (i') Freme v. Brude, .^ujyra. (/') Kx parte Andrews, Re Emmett, 2 Kose 410, i Madd. 573, TisLer on Morteages 075 (4th ed,). (.'/) Williams' \. Atlyns, 2 Jo. & Lat. (fr.) 603. I w *«i.iiiitS' ZZ,- :fc;'i«,.''it '•MHt.'tUia at 366 THE LAWS OF INSURANCE. been held to be sufficient evidence of an intention that the policy should be assigned with the principal security upon redemption, even without regard to subsequent words importing yet more clearly a right in the mort- gagor to require an assignment of the policy. But the passing of letters between the parties which refer to the necessity for the insurance, or a provision in the principal security for payment by the debtor of the additional premiums which in certain events mifdit become payable upon the policy, or a covenant by tlie cestui que vie of the annuity to do the necessary acts for the effecting of the insurance, are not sufficient (//.) to give the mortgagor or grantor of the annuity a title to the policy, for these are only statements of or refer- ences to the terms upon which the transaction was effected, and afford no evidence of a contract whicli will take the case out of the general rale. It seems Pv?dence of ^^^^^ letters which have passed between the parties may right to policy, be lookcd at in order to ascertain whether there were any contract concerning the right to the policy, where there is no discrepancy between the letters and the security (t), though it would be otherwise if the effect of the letters would be to vary the stipulations of the security (A-). Contract that Where there is an express contract that the policy pohcy shall be , „ , . , ^ , . , . , "^ re-assigned. sJiall be re-assigued upon the security being redeemed, if the grantor shall elect to take it, the grantee may not, either before or after election, part with the policy for his own benefit {I). Position of Where a creditor whose debt is secured by sureties creditor with • A.^ ^•c j ^-i • • , ■■ , , . surety for lusurcs the life ot the principal debtor, he is perfectly debt'ur°s'iif'e"^' ^^^^ ^^ ^^^^8" over such policies to the debtor or any one or more of the sureties paying the principal debt. (h) OottUdix. Crunch, 4 Ue G. M. & 0. 440, 22 L. J. Ch. 912, 17 .Fur. 704, Fisher on I\Iortgage8 976 (4t]i etl). (/) Gottlieb V. Craiicli. siijiva. \h) Acquire V. Cumpbd!, i Myl. & C. 459, Fisher on Mortgages 977 (4th ed.). (/) Huwlc'tns V. Woodadti, 7 Beav. 565, 8 •Tn.n 743. DISPOSITIONS OF LIFE POLICIES. 367 0, 22 L. J. Ch. 912, But as between the sureties no one of them can by Position of paying the debt, and obtaining such assignment, appro- -X^le^ priate the whole benetit of the policy, and claim contri- bution from his co-sureties as though such policy never existed. To give him such a right, the others must abandon or disclaim all benefit of the policy (m).] But the surety who takes over the policy is entitled Surety can in an action for contribution to deduct from the amount spentln"""* received on the policy all sums spent by him in keeping keeping up it up, since as the benefit is joint, the burden must be ^° '°^* so also (n). Where a contingent interest was assigned upon trust to secure a debt, and the creditor insured against the coutingency and received the insurance, he was held to be within the principle which prohibits a trustee from making an advantage out of his trust ; and, the debtor being bankrupt, the creditor was permitted to prove only for the balance of the debt (0). A mortgage of a life policy is a mortgage of " property " so as to require an ad ml. stamp (p). A life policy does not create the relation of predecessor and successor between the in- surers and the assured, or any assignee of the assured, so as to attract succession duty (q). Creditor within rulo that trustee may not make profit. Life policy is a "property." Succession duty not payable. In the second class of mortgages of life policies Policy as come tenants for their own or other lives, annuitants, tfcSy! or persons with a defeasible interest in mortfafTcd r>ro- mortgagor's , „ J. T 1 1 • . oof interest being petty. In such cases, accordmg to tlie tenure of the defeasible, mortgagor, insurance is made either on his own life or on the life upon the duration of wliicli his interest depends. And such insurance is a further security to the mortgagee in case the tenant for life dies without (m) Atkim v. Arcedeckne, 24 Ch. 1). 709, 53 I.. ,T. Ch. 64, 48 L. T. ^i. h. 725. («) Ibid. (0) Ex parte Aiidrews, 2 Rose 410, i Madd. 573. (p) Caldwell v. Dawson, 5 Ex. i, 14 Jur. 316. (y) 16 & 17 Vict. c. 51, 8. 17. 368 THK LAWS OF rX.SURANCK, iH! l||i».»"8 ""ii '"".H-ircS: I ||NH„l>«tl :«>«)' ; . . a; ^» ' 11(41, aw w«, paying the mortgage-money, or the tenant for life loses his estate by the death of the cestui que vie. The mortgagee may make such an insurance a condition precedent to lending, and there is no objection to such a policy being effected in the name of the mortgagor; but the mortgagee should be careful to ascertain that thu mortgagor has an actual and insur- able interest in the life insured at the time the policy was effected. But he is under no obligation independently of the contract to effect such an insur- ance, and the High Court of Justice has no more power than had the Court of Chancery when directing monev tho purpose of i.„ i • i , . „ , , . , " »v"cj perfecting ^^ ^e raised upon estates of the kind now in question security. to Compel persous who have an insurable interest in the lives upon which such estates depend to effect policies on such lives as part of the security for the money directed to be raised (?•), nor can a bankrupt be obliged to insure himself nor to submit to be examined with a view to insurance, since this act would have to be done not to distribute the property, but to add a new value to it (s). Court caunot compel inaurauce for Mortgagee can add premiums to securitv. In such mortgages it is usual, if not invariable, for the mortgagor to covenant to pay the premiums. If he fails to do so, the mortgagee can pay them, and add them to his security. If the policy be let drop, or none be effected or stipulated for, the mortgagee clearly has an insurable interest in an event which may terminate his security such as to enable him to insure tho life of the tenant for life or restiti que vie. If he does so, tlie insurance is wholly his own, and tlie mortgagor has no claim on it {t). (r) drantley v. Clurtluruile, 6 Miuld. 96, Fisher on Mortgascs (itli eil.) 13. (.s) Ex parte JSaUod; 16 d. B. I). 69S. He /ie//,v. 19 Q. B. I). jQ. 56 i.. J Q. 13. 370, 56 L. T. S04, 35 W. 1{. 530. Jloard of Trwh v. Jjloch; li. Ii. 13 Ajip. ('as. 570. (t) Gottlleh V. Cranch, 4 De G. iM. & G. 440, 17 Jur. 704, 22 I.. J. Cli. 912. IVIllmiihi V. Alkijnx, 2 .Jo. & I.at. (Ir.) 603. JJat^/iford v, Caim, 33 IJeav. 109, 9 lu T. N. S. 43. u W. K. 1037. ILmphroi v. ATohni, LI, &Gookl (temp. Plunkett) 218. Kx parte Lancaster 4 L>e 369 ei- oil Mortgages (4tli DISPOSlTIOiXS OF LIFE POLICIES. V>y s. 19 of the Conveyancing Act, 1881, a power of JWorof sale sale IS made an incident of all statutory niort"a"es in "" ^""^^ "^ ,1 \ n '"^kqWoco i.ii covenant the absence ot any contrary, varying, or limiting stipu- toiaanre. lation. And by s. 20 (iii.) thereof such power of sale will arise on breach of a covenant to keep on foot a life policy or policies as a collateral security to the mort- gagee of the life interest (w), and the power to ap- i-ower to point a receiver given by =». 24, where the power of sale rocdver lias arisen, enables a mortgagee to appoint such re- ceiver and authorise him in writing, sub-s. 8 (iii.), to employ the moneys received by him, after satisfying certain prior outgoings, in paying the premiums upon life, fire, or other policies properly payable under the mortgage deed. By s. 22 (2) the proceeds of a life policy, which is a How proceeds security within the mortgage deed, are to be applied as appiSe money arising from a sale of mortgaged property (»). A life policy is property within the meaning of Poiicv in s. 19 ( I), see s. 2 (i), and the power of sale conse- "P''°P«''ty-" quently applies to that also, as well as to any realty or chattels within a mortgage deed. So that the mortga- gee can sell and assign (y) a life policy if the mortgagor does not comply with the terms of the mortgage deed. He can also foreclose (z). In B^son v. Morris (a) it was held by Wigram, V.C, Mortgage that although on a simple mortgage of a policv of "p°"*''"^* = assurance the mortgagee, in default of payment, is cannot sell, entitled to a sale under the decree of a Court of Equity, yet if the policy have been assigned to the mortgagee upon trust to receive the money to become payable, (t. & Sm. 524. See also Knox v. Turner, 5CI1. App. ck cjq 750, 23 L. T. N. S. 227, 18 W. R. 873. ^^ (u) Wolstenholme & Turner's Con v. Act (3rd ed.) p 66 (.'■) SneBoswell v. Ccah, 23 Ch. D. 302. L. .1, Cli. 2 A !|*i*«»i ■an 3;o THE LAWS OF INSURAN(^E. and thereout to pay the expenses and nortgage debt and pay the residue to the mortgagor, the Court cannot direct a sale of the policy. The mortgagee must wait '0"0^ Covenant to keep up policy. Breach Damages. until the death of the mortgagor before he can make his security available. Where a policy of life assurance is mortgaged, and the mortgagor covenants to keep up and restore the policy, and breaks his covenant, the mort- gagee has an action for damages, and the measure of damage is : — (i.) The amount of premiums, if any, paid by the mortgagee to keep up the policy and interest thereon. (ii.) The amount necessary to renew the policy, if it has dropped in consequence of the mortgagor's default (&). (iii.) In case of a loss, the amount of the loss (not exceeding the mortgage debt) (<;). Where the covenantor commits suicide, the policy being on his own life and in trust, the trustees cannot recover damages from his general estate under sucli covenant (d). Where the mortgage deed contains a covenant by the mortgagor to repay any premiums paid by the mortgagee, the latter has his remedy, either on that covenant for the amount so paid by him, or on the covenant to keep up the policy, in which latter case the measure of damages would be just the same where no loss had happened. Covenant to Where the mortgage contains a covenant by the and^powe^Ao"^ mortgagor to keep up the policy, but no covenant by (6) 2 Dav. Conv. pt. 2, 63, and cases there cited. Fisher on Mortgages 351 (4th ed.). (c) Mayne on Damages, 241 (3rd ed.). {d) Dai'ttiuy V. Borruduilc, 10 Bcav. 335, per Lord i.angdalc. Covenant to repay premiums. Damages for breach. of the loss (not Fisher on Mortgages DISPOSITIONS OF LIFE I'OIJCIKS. 371 lum to repay to the mortgagee any premiuni.s spent bv add premium, him, but a i)ower to pay and add to the mortgage debt, '" ''''^*- only nominal damages will be given in an action for brciich of the covenant 0;), as the deed itself provides a reiiiody for the breach by adding the sums paid to the mortgage debt. Where a policy has been mortgaged to the insurers, Mortgage to and the mortgagor has agreed but failed to pay the •»"'H*"J'' . , Ml , . , ^ "^ premiums prennums, tliey will, on taking the accounts, be treated 'Just as just allowances to the insurers as mortgagees (/), jf ""°"^'^°*=''«-" they have kept alive the insurance, but not otherwise (rj). If allowed, they will be added to and bear interest at the same rate as the principal debt. A mortgagee could not insure and add the premiums Mortgagee to the mortgage debt in the absence of an express con- premiSmf tract authorising him to do so (h). This, however is "»i««« express varied by 44 & 45 Vict. c. 41, s. 19 (ii.), under which ExXTunder a mortgagee may insure against loss by fire, and the Srrisr'"^ premiums will be a charge on the property. An executor who dropped a policy on the life of a Executor debtor to the testator's estate without consulting those up''pdic''y.^^ beneficially interested has been held liable for the whole sum which would have been received if he had kept up the policy (i). .jd by which the defendant assigned to Breach of VVi. the pla,: covenant the policy, defendant's going beyond the limits of Europe without policy on his own life contained a g^fcTut of hu would not do anything to forfeit ^"'"''P''- and a forfeiture accrued through the *™*^*^^' (j) Jirowa V. yVic., 4Jur. N. S. 882, 6 W. J!. 721, Fisher, p. .0 (4tli ed. ). ^ ■'■' (/) FItz William v. I'rice, 4 Jur. N. S. 889, 31 L. T. 389. Broinix i^rive, supra. Jf\c^'''i\-^"TJ' ' «F-n438, Fisher, p. 861 (4th ed.), 2 Jur. N. S. ^ !i^V'^ °- ^^^' 4 W. R. 497, 27 L. T. 165. (A) Jirooke V. Stone, 34 L. J. Ch. 25, 12 L. T. N. S. 114, n W. 1!. 401. *- (0 Garner v. Moore, 3 Drew. 277, 24 L. J. Ch. 687. I if>Ht S5- 372 THE LAWS OF INSURANCE. the licence of the company, the damages were assessed upon the present value of the policy, to be calculated by an actuary, taking into consideration that the defendant covenanted to pay and should pay premiums on the policy (k). What a Where a policy of life assurance is mortgaged, the Hfo'^po*fcy mortgage deed should contain : — should contaiu. (i.) A covenant to keep up the policy. (ii.) A covenant to restore it if it lapses. (iii.) An authority to the mortgagee to keep up or restore the insurance, in case of default by the mort- gagor, and to recover the money so expended, or to add premiums to the mortgage debt. Money advanced for keeping up a mortgaged policy or eiFecting a new policy in lieu thereof is exempted from the ad valorem stamp duty by the Stamp Act, 1870(0,8.107. (it) Haiolcins v. C'otdthurat, 5 B. & S. 343, 33 L. J. Q. B. 192, 12 W. K. 825. (0 33 & 34 Vict. c. 97. ( Z7i ) is mortgaged, the 33 L. J. Q. B. 192, 12 CHAriEK XVIII. LIEN. Besfdeh rights to or in policies accruing to persons Policies. (otliur than the person taking out the same), by way ^,!^;"; ^ of assignment or charge, numerous questions arise ^'>■v>ich. as to lieu on policies. In the case of Leslie v. Fmwh (a), the law as to one branch of this subject ^ has been summed up and digested by Fry, L.J., who said as follows : — " A lien may be created upon the moneys secured Lien may by a policy by payment of premiums in the following JremSLfs*)^^"^ cases : — "I. By contract with the beneficial owner of the contract with policy. o^^ner. " 2. By reason of the right of the trustees to an By virtue of indemnity out of the trust property for money expended ^'^steesUip. by them in its preservation. " 3. By subrogation to the rights of the trustees of By subro- some person who may have advanced money at their ^'*''°"' request for the preservation of the property. " 4. By reason of the right vested in mortgagees or By right of other persons having a charge upon the policy to add i^se^vf" to that charge any moneys which have been paid by security, them to preserve the policy." Chitty, J., and North, J., think these proposi- («) 23 (ih. D. 552, 52 L. J. Ch. 762, 48 L. T. N. S. 564, 31 W. R. 561, continuea by Falcke v. Scottish Imperial, 34 Ch. D. 234, 35 W. 1{. 143, 3 Times L. K. 141. it I ill III I 374 ':ke fi m jlfi.«aM«MM *| Example of lion liy contract. Trustoo's rJRlit to riTouptnent out of policj' luonoy. Examples of lit>n by virtuo of tnstoesbip and ny subropation. TIIK LAW.S OF INMUUANCK. tious oxlmustivo, hut MiuUuy, L.J., doubts if thut i^ so (/>). All iii.stiiiiai of tho first class of (inses, viz., tlio (Tcatioii of a lieu hy coutmrt with the heiit'licial owiK^r, is to ht' found in tlio casn of Ai/linn v. mt(// {,') whm; Kinderslcy, V.C, ludd "that whore a luortLJa-or had contracted with the iuort^'a«,'e() to pay the premiums, mid there were sureties for tJie perforiuauet! of tliis contract by the uiort<,'a^'or, and the sureties had hwii called upon and had ])uid tlui preiuiuius, they W((re outithul as against the inortKa<,ror to a lieu upon the I'olicy-moneys. It is obvious that in this case thu sureties were, by contract witli the i)riucipal debtor, entitled to the benefit of all the securities which the niortj,'aj,'ee could have enforced, and amongst others to a charge for the premiums paid." Regarding the second class of case, North, ,1., has hehl that the right of a tnistoc who has paid j)remiums out of his own money is only to be recouped out of the trust funds, and he cannot be recou])ed out of the policy-money where it does not form part of such funds {,f). " The second and third classes of cases are well illustrated by Clack v. ][ollmul{,'), in which it was held that trustees who paid moneys under circuiu- stances which gave them no right to a charge could not create a charge in favour of a third person from whom they borrowed moneys. To the same class may be re- ferred the case of Gill v. iJowniwf (/), in which mort- gagees, whose title as such was good after, and only after, the death of the tenant for life, were held entitled to a lien during the subsistence of the tenancy for life. The mortgagees were put by subrogation in the place of the trustees. Again, in the case of Todd v. Morehouse {g) (h) ^trnttv llppett, 6i 1. T. 460, 62 L. T. 475. Earl of Winchil- seH'8 Pohcy Trnsts, 59 L. T. 167, 39 CL. Div. 168.^ Fry', I?J ^^°' •^° ''■■'■ ^'^- ^^°- ^'''"''^ ''■ ^'''■'"'■*' "'!"'"• !'^^ ( 399- Castlhiji v, V. /Smith, 4 App. Cas. i, I{. 113. LIEN. 379 A solicitor may have a lieu on a policy of in- Solicitor's surance for his costs. Such lien is only a passive "^°' remedy, giving no claim to the fund secured by the policy, but merely a right to embarrass the person who clamis the fund by the non-production of the docu- ments of title. A solicitor is not bound to give the insurance office any notice of his lien, since owing to the nature thereof he would not by such notice convert the msurers into trustees for him, and failure to give such notice is in no way such negligence as to deprive him of his lien (x). He cannot be made to part with the policy till he is paid, except upon terms (i/), such as payment into court of the policy moneys, or pres.jrvation of the hen by the insurers. But it is doubtful whether such a hen could be enforced by suit at all (s). Lien of vendor and right to stop in transitu do not Eight to stop entitle the vendor to the proceeds of policies effected Sv'^s t'Lhi by the purchaser on the goods sold (a). toinsurancf Where an unpaid vendor who is insured recovers VendoVs lien trom the insurers, the insurers are entitled to his lien ^"^™&*''>^dto as against the purchaser, and if the vendor recover from '"'"'''''■ the purchaser too he must refund the insurance (b). Where a policy granted to a person domiciled out- Lien created Side the jurisdiction is deposited with a person within ^^^ "^^po^'t ^7 the jurisdiction to answer a debt incurred by a contract SdicSn^' made withm the jurisdiction, a lien thereon will be ^S^^ acquired by the depositee, and will not l)e affected by the bankruptcy in his own domicile of the depositor (c) (.r) West of England v. ^atchelor. 30 W. R. 364, <:i L J ('h iqq V Plufel, (>a,g & Ph. 79. Steadmau v. Webb, 3 Mv. & Cr 346 Sel M V. Ball, 3 Kass. i. for rules a,s to priorit/in ^^gard toX'scs ?n r^!'!-.'!m^/lfKJrr9|'^^- 79Ht84,perCottenha.,C. Limenek (V) >J.dman v. Webb, 4 My. & (h-. 346, per Tottenham, C. (1830) (1868) distinguishing Worrallv. Johnson, 2 .hic. &W.2L -^*"'"''^- rJ5L(:t'r:wV-''.'-' ;-?.«• ^- 3^0. s^ l. .t. q^-i, 366.49 (c) Lc Feuvrt v. Sullii 35/ 1 P^'" J'OWt;M, I,, .r. •an, 10 Moore P. (J. i. 'HI'S' -% .'» 380 Creditor having two debts secured by policy surety of one debt cannot claim the policy after payment. Lien drops •with policy. Lien by mortgagor paying premiums. THE LAWS OF INSUEANCE. Where a creditor has his debt secured by a policy and guaranteed by a surety, and also has a lien on the policy for another debt, the surety is not entitled to the policy on paying the debt, but his rights are subject to the lien (d). When a policy drops, the lien drops with it (c). If a mortgagor after bankruptcy pays premiums to keep a mortgaged policy, he is not entitled, in the absence of special agreement, to a lien on the policy for the amount so paid (/). {(l) Fairhrother \. Woodhouse, 28 L. T. 94, 5 W. IJ. 12, 23Beav. iS, 26 L. J. Ch. 81. Jeffrey's Policy, 20 W. 1{. 857. (e) Bnsteedv. Wextern England, ^ It. Ch. ^S3- Norrisw. Ctdedimlun Ins. Co., 8 Eq. 132, 20 L. T. N. iS. 939, 17 W. E. 954. (/) Saunders v. Bunman, 7 Ch. 1). 825, 47 L. J. Ch. 338, 38 L. T. N. S. 416, 26 W. R. 397. Falche v. Scottish Imperial, 34 Ch. D. 234, 3 Times L. K. 141. These cases explain Shearman v. British Empire Mutual, L. E. 14 Eq. 4, 41 L. J. Ch. 466, 26 L. T. N. S. 570, 20 AV. Jl. 620. 1- I 4 'i«,i;» ■* l*Hl'«l!E[, ***■ CE. ured by a policy las a lien on the s not entitled to t his rights are s with it (c). pays premiums t entitled, in the on the policy for VV. E. 12, 23]jeav. iS, Norrls v. Caledonian R. 954. . J. Cb. 338, 38 L. T. perial, 34 Ch. D. 234, lan V. British Empire ?. N. S. 570, 20 AV. 11. ( 381 ) CHAPTER XIX. C N F I. I C T I X G CLAIMS. WiiEX conflicting claims are made on an insurance when company in respect of a policy, the proper procedure gh^d"^^ is to interplead (a), and not to pay into Court under the interplead and Trustees' Eelief Act {h), the insurers not being trustees couKnder ' or stakeholders, but debtors ; but if, in respect of a life ^° * " "^ic*- policy, the board of. directors are of opinion that no "" ^ ' sufficient discharge can otherwise be obtained, they should pay into court under the Life Assurance Com- panies (Payment into Court) Act 1896, and the rules made thereunder (c). The practice of paying into Court under the Trustees' Eelief Act had been often used {d), until Jessel, M.E., pointed out that unless the policy was a trust policy the Act did not apply. The insurers cannot interplead if they have any adverse claim in respect of the subject matter {c). In Ireland it has been held that they cannot interplead if one claimant offers a sufficient indemnity, and that if he offers indemnity and they are not satisfied, they should pay into Court under the Trustees' Eelief Act (/). When an action is commenced by a claimant on a policy, if it is not so framed as to bring the other {(i) See Prmhntial \. Thomas, 3 Ch. Api). 74, 37 L.J. Cii. 202* 16W. U. 470. [h] TLiijcock's Policy, i Ch. D. 611, 45 L. .T. Ch. 247, 24 W. 11. 291, disapproving the United Kingdom Life, 34 Beav. 493, 13 W. R. 645. \r) 59 Vict. c. 8. See Ann. Tract.' 1S97, vol. ii. p. 266, for liule4"iA, and vol. 11. 377. for rules made under the Act. (f/) Vhopman v. Besnard, 17 W. R. 359. WthVs Policy, 2 Eq. 4<:6. IS VV. R. 529. Cohhe's Policy, 15 W. R. 29. ^ ^ i'l.'^/ji""^'^ '''■ ^^"^'^«"^' " Si"'- ^3. Ju (i«4o), per Shadweli, V.C. (/ ) Chapman v. Besnard, 17 W. R. 359 (1869), per Lord O'Hagan. 382 THE LAWS OF INSURANCE. claimants before the Court, the insurers may interplead, and have the first action stayed (rj). An offer should be made tn pay interest on the policy moneys (/t), since a policy bears interest under 3 & 4 Wm. IV. c. 42, s. 28 (^), for it would seem that submission to pay the moneys to the persons found to be entitled will not remove the obligation to pay in- terest, even if conflicting^ ■■\:^-a& throv.gh no fault of the insurers delay such payn unless any arrangement has been come to that the ;» uey shouM not be invested or brought into Court Q). unde'? dUree ^^ ^^^ insurance company pay under decree moneys iudemnifles payable Under a lost policy, such decree is sufficient company. indemnity {m). Payment to trustees good. Cau policy be takeu in execution ? The insurers can safely pay a trustee of a policy even if under the tru^t he has no express power to give receipts {11). The authorities conflict as to whether a policy can be taken in execution under a ji. fa. In Ireland it has been held that a policy of life insurance is not such a security for money as can be taken by the sheriff (0). In England the contrary has been held {p): but the Irish case was not cited to the Court, and in the latest case in Ireland {q) the Court fully discussed both authorities, and followed the previous Irish decision. Canadian policies usually provide that a fire insurance shall cease on the property being taken in execution. (o) Frndential Co. v. Thomas, supra. (h) B!(jnoUl\. Audland, supra. , (/) Bushnan v. Morgan, 5 Sim. 635 (1833). (/) French \. lloyal ExchnajtCo., 6 Ir. L'li. 523. (0 Same case on appeal, 7 Ir. Ch. 523 (1858). (m) England v. Tredegar, i Eq. 344, 35 Beav. 256, 35 L. J. Vh. 386, following Crohatt v. Ford, 25 L. .1. Oh. 552, 4 W. R. 426, 2 Jur. N. S. 436, in preference to Bushnan v. Morgan, supra. (n) Fernie v. Maguire, 6 Ir. Eq. 137. Ibrdv. Byan, 4 Ir. Ch. 347. (o) Alleyne v. Darcey, 5 Ir. Ch. 56 (1855). (p) titokoe V. Cowan, 29 Beav. 637, 30 L. J. Ch. 882, 4 L. T. N. S. 695, 9 W. R. 801. {(l) fSargeant's Trusts, 7 L. R. Ir. 66. rs may interplead, ( 383 ) CHAPTEE XX. COMPANIES. The mode in which an insurance company is con- what depends stituted determines the manner in which it shall sue °^ '"^■""er of and be sued, and the character of the liability of its 'oSSu. members. But whatever be the means by which such company is constituted, its powers and liabilities, and the method of its management, are peculiar to itself and are determined by the particular provisions of the statute, charter, or other instruments under which the company is created. These provisions are important to shareholders, policy-holders, and all other persons havmg dealings with the company; because by the registration now necessary under the Companies Act 1862, all persons are deemed to have notice of them. Insurance offices may be classified irrespectively of Classification, the manner or nature of their constitution as fol- lows : — 1. Proprietary offices which are joint-stock partner- Proprietary, ships, with a subscribed or guaranteed capital the partners wherein absorb the whole profits of the under- taking. 2. Offices set up for profit to the shareholders, but Mi.ed, in winch also give the policy-holders certain advantacres T'^i''^ p°''''>'- m the way of a share of the profits, usually called a S^""' bonus or a periodical rebate in the amount of their premiums ; but they do not admit the policy-holders as partners, nor render tlicm liable as such. These mixed companies arethem.ost nommon; in fact the late Lord Justice James said : " Every life assurance 384 Mutual. Companies under special statute. Kind of companies. THE LAWS OF INSURANCE. society is substantially and materially a mutual life assurance society. The method by which it is intended to provide for the payment of the sums secured by the policies is by investing the premiums and accumulating the money so as to form a fund out of which the claims are ultimately to be satisfied. The capital of the shareholders and the sums which the shareholders undertake and make themselves liable to pay, are in truth only a guarantee against the possible contingency of the accumulated insurance fund being found insuffi- cient («.). 3. Offices established for mutual insurance, where the policy-holders are themselves the proprietors, and where the principal object of the society is rather the protection of its members against loss than the acquisition of profit. It was therefore doubted whether such an association required registration under the Joint- Stock Companies Act, 1862, but the necessity for regis- tration has since been judicially determined (&). Friendly societies are also for the purpose of mutual insurance. They require registration under the Friendly Societies Act, 1875. 4. Offices set up by the State to encourage provi- dence and thrift, such as the Government Insurance and Annuity Department, and the special modes of insurance provided by Acts of Parliament for departments of the Civil Service, and in India (c). Except those risks which are taken by underwriters at Lloyd's, the whole of the insurance business other than marine is carried on by companies, most, though not all, of vphich are incorporated. The continuousness (a) Gram's Case, i Ch. D. 321, 45 L. J. Ch. 321, 33 L. T. N. S. 766. (h) Re Padntoio Total Loss Association, 20 Ch. D. 137, 51 L. J. Ch, 344, 45 J^. T. N. S. 774, 30 W. E. 326. (c) Boldero v. H.E.I. C, 1 1 H. I.. C. 405. Underwood's Case, 4 LK. 4 H. L. 580. Edwards v. Warden, 1 App. ('as. 281, 9 Ch. App. 495' Euhertsun 8 Case^ 12 Moore P. C. 400, Dnniex v. Trustees of Madrm Fluid, 12 Moore P. C!. 403 n., 7 Moore Ind. App. 364 n. COMPANIES. 38s beiii" found insuffi- departments of the of corporate existence is favourable to the assured (d) aud the burn ,.ess itself being reducible to a routine and system, is especially suitable for a joint-stock partnership (e). The various companies which cany on insurance business have been constituted in different ways, and the form and mode of their constitution is still to some extent important as determining_(i) the rights inter se, of the jomt stock or shareholders, (2) the powers and mode of contracting given and prescribed to the company, (3) the extent of the shareholders' liability on the contracts made, (4) the manner of suing thereon, (5) the means of enforcing judgment thereon. The modes in which existing insurance companies Fonnation of liave been formed are — companies. A. By deed of settlement. 13. By royal charter. c. By special statute. D. By letters patent. E. Under the various Companies Acts. These different modes of creation produced— (i) Mere common-law partnerships. (2) Corporations. (3) Quasi corporations, suing by and being sued in bk!K. i\!'^T ^'"'^''''^^ Wealth of Nations, p. 340, edn. by M'CuIIoch, (e) 2 Stephen Coram. 126 (8th ed.). (/) 7 Wm. IV. & I Vict. c. 73, s. j. 2 R l86 THE LAWS OF INSURANCE. (4) Joint-Stock companies registered and iiici.t. porated under the Companies Acts. The first charters f,'ranted to insurance companies were given under permission by statute. These charters were in the nature of monopolicH, whence tlie need to apply to Parliament for authority to grant them. Few charters seem to have been granted to any insurance company by the Crown independently of Parliament (g). Royal By C (Jeo. I. c. 1 8, rarliament empowered the Kiii" Exchange and . ,, -, ^ .-,. . *' Loudou to grant two charters, constituting two marine lusur- Assurance. ^nce Corporations, vi/., tlie lioy^l Exciiange and the London Assurance (h), and forbidding all other corpo- rations for marine insurance. The purpose of tliis Act wai to create two solvent insurance companies, to suppress all bubble companies and bodies presuuiiuj,' to act as corporate bodies without legal authority, and to give the two companies a monopoly of insurance as a business for corporate bodies (i). Oonstitutiou The corporations remain, but their monopoly has been o companus. j,gj^Qygj q^^^ while, on the other liand, they have been permitted to insure over a wider area and against more risks than those contemplated by the original charter. Special statutes under which certain insurance associa- tions are formed have the effect of charters, and clothe such comrjanies with all the attributes of corporations. But most of the special Acts appear to do little more than J. -uvide for the mode of suing and being sued. Very few insurance societies have actually been Special statutes. ig) Clifford on Private Bill Legislation, vol. 2, p. 593. (A) S. 12. {{) S. 18. As to tbe history of this Act and 6 Geo. IV. c. 37, see Clifford on Private Bill Legislation, vol. 2, p. 570. (k) 5 Geo. IV. c. 114. ;ere(l and iiicor. re of monopolicH, nt for authority to independeutly of oowered the Kin- 1)11 COMPANIES. formed by a private Act; but many societies already cMstinjr, but unincorporate, have found it advantageous v> apply for and to obtain incorporation, more ospeciallv those domiciled in Scotland. ny the Letters Patent Act (/) the Cro-.vn is empowered, L.tu.. th(; application of any company formed by deed of ''"'""^ ^''*- partnership, to grant 'o such a company letters patent authorising it to sue and be sued by an ofFcer named tor the purpose, and by such letters patent to limit the haoihty of the members of the company. The company, on obtaining this privilege, comes under certain regulations as to th. registration of vanes particulars connected with its constitution and other matters pointed out in tJie Acr.. This Act is not compulsory but permissive, granting' a privilege to those who choose to apply for it. It is •^till in force, but applies ("uly to companies formed oetore September 8, 1844, v/lien first the Joint-Stock (companies Act wa.s passed (m). "The leading purpose of the first Joint-Stock Com-Objoctof panics Act (n) was to enable a permanent company J'''"'-«tock consisting of changing shareliolders, to make bindin- Acr'"""' contracts, and sue and be sued, and do all the acts necessary for carrying on a trade. The preamble expresses an intention to invest them with the qualities and incidents of corporations with some moditications, and subject to some provisions and regulat'ons " (0). Kvery assurance company or association for the^Asviot purpose of assurance or insurance upon lives or a^^aiust "• "°' '-^ any contingency involving the duration of humaS life or against the risk of loss or damage by fire or by storm or other casualty, or fo r granting or purchasing (0 7 Win. IV. & I Vict. c. 72. (>n) Taylor on .loint Stock Companies, p. 910 (1847). ('*; 7 & 5 Vict. c. no. (<>) Prince of Wales In.. Co. v. IRmVna. \L H. H. -7 U J. Q. B. 297, 4 jur. N. S. S51. 387 rS 'j> -i coriiuratious. 3,S8 THE lAWH or inhhuanck. annuitios on lives, uiid every institution enrolled und.-r any of the Acts of Parliunient relating,' to friendly societies, which institutions shall make assurances on lives, or against any contingency involving the duration of human life to an extent upcm one life, or for any one person to an amount exceeding ;{;200, whether such companies, societies, or institutions shtvll bo Joint- stock companies or nmtual assurance societies or both, wa if established after the commencement of 7 ^*v: S Vii .. c. 1 10, s. 2, bound to register thereunder. Insurance companies registered under 7 & 8 Vict, c. 1 10, partake of corporate powers with several incidents of partnership, and have been termed quad corpora- tions (jp). lint the privileges of the statute are recorded only to those registered under the statute ; and if registration be made as a company, they cannot aftor- 1 wards register so as to lead the world to suppose them a corporation (j). A company formed and duly registered under the tirst Joint-Stock Companies Act (7 & 8 Vict. c. 1 10) for the purpose of insurance, and also for the granting of endowments, annuities, assurances during sickness, and loans, is an insurance company within 20 & 2 1 Vict. c. 14, s. 27, and can sue without being registered under the Joint-Stock Companies Acts, 1856-57 (r). compauics Certain insurance companies were excepted from the excepted from g^.g^ Jolnt-Stock Companies Act— (i) In respect of the ^'^^' time of their formation, if their formation was begun before Sept. 5, 1844, they could not be completely registered or brought (s. 59) within the Act (s); Coiupauy under 7 it 8 Vict. c. 1 10, (p) Jlidleii V. FbjmoutU Co., 2 Ex. 711, per Parke, 15. Brice's Ullw Vires, p. 12. ^ o (q) ken. v. Whhmnrsh, 19 h. J. Q. B. 185. (r) Lomlon. and Provincial l^ovident Society v. Asldon, 12 0. b. N. S. 709, 723, 11 W. R. 152. 7 I- T. N. S. 530. See also 25 & 26 \lCt. C. 89, 8. 3. (,s) Taylor on Joint-Stock Companies, 115. COMrANlKS. IS9 (2) If incorporated }»y charter or Act of Parliament; or (3) If authorized by letters ])ateiit or statute to sue and 1)0 sued. And companies formed after the Act could, though within the definition of a company therein avoid the need of registering thereunder by obtaining a charter, private Act, or letters patent. in consequence of this exclusion of assurance com- panies, nuiny have since liad to go to rurliament for private Acts. The Companies Act, 1862, enforces registration on companioa those companies which have been registered under the rogistor.-d 11 4 i o ,. -ir- , ^s . unaer7&8 Older Act 7 & 8 Vict. c. 1 10 (t), and the effect of such Vict. c. no, registration is exactly the same as if the cimipany had rH^4\er.' been formed and voluntarily registered under the latter Act («). Every insurance company formed shice Nov. must be registered under the Act of 1862 (,r). 1862, What compauies muHt register under Companies Companies which ought to have, but have not regis- ActJS.' tered as required, are under the disabilities of s. 210, and cainiot sue at law, or in equity, nor even present a petition for their own windini;' up (y). liroadly speaking, by the Companies Act, 1S62, s. 22, the Legislature intended that all commercial undertakings consisting of more than ten persons, started after the commencement of that Act, should be registered. And mutual insurance associations, pro- viding that tlie liability should be several only, are conmiercial undertakings for the acquisition of gain Parke, 1>. Brice's Ultiu (,/) 25 & 26 Vici c. 89, s. 209. (M) Manmnfa Owe, 3 (;h. D. 388, 46 !.. J. (Jh. 411, 35 L. T. N. S. 654. 25 W. 11. 279. [x) 25 & 26 Vict. c. 89, s. 4. Ex parte //«}-/7}v>/;e, 10 Ch. A pp. 54511,, lie I'adstow Ax.suiu'alion, 20 (Jh. 1). 137, 51 h. .j. ( ;|). 344, 45 J,. T. N. S. 774, 30 VV. R. 326. (//) Re Wattrloo Life Co., 41 Beav. 586, 32 I.. .1. Ch. 370, li W. I{. 134, 7 !.. T. N. S. 459, 9 ,lur. N. S. 291. Kvum v. HootKr, i Q. B. D, 45. 33 I'- T. N. S. 374, 24 VV, \L 226. What is an insurancu compau}- under Companies Act. What is an unregistered company. • THE LAWS OF INSURANCE. within the Act, and must be registered under it ; and if not so registered are illegal associations, and cannot be wound up under s. 199 of the Act (2). All companies registered under the Companies Acts, 1862, deposit with the registrar copies of their deeds of settlement, and thereby the same are made available for public inspection. An insurance company so registered is entitled to an injunction to restrain another insurance company from using its registered name, or any other name calculated to cause the one company to be mis- taken for the other (a). All companies not so registered are bound to print their deeds of settlement, and to supply them on de- mand to every shareholder or policy-holder for not more than 2s. 6d. (b). : The efitect of the compulsory registration aforesaid is to put the insurance company so registering within all the rules and regulations of the Act of 1862. For the purpose of that Act, any company which is not concerned solely in the business of insurance, but carries on therewith any other business or businesses, is deemed an insurance company (c). Any company registered under other Acts antece- dently to the passing of the Act of 1862, is an unre- gistered company within s. 199 of that Act. In Buim V. The Hope Life Insurance Company (d), the Act was applied to a company formed in 1852, and regis- tered under the Act of 1844 (7 & 8 Vict. c. no), but which had ceased to carry on business in 1855. (s) Cury and Iluwlculei/'s t'lmc, 3 (.'h. D. 522, 32 li. T. N. S. 3J5, 23 W. 11. 939, per Jossel, M.R. (a) Accidental Insurance Co. v. Accident, Dineaae, and General In- surance Corporation, 54 L, J, Oh. 104, $1 L, T. 597, (Jb) 33 & 34 Vict. c. 61. IB. i under it ; and ions, and cannot Companies Acts, Df their deeds of ade available for iny so registered nother insurance ne, or any otlier pany to be niis- 5 bound to print ily them on de- ider for not more tion aforesaid is iering within all 1862. mpany which is f insurance, but iS or businesses. er Acts antece- 862, is an uure- Act. In BovM'^ d), the Act was ^52, and regis- ict. c. 1 10), but n 1855. 32 r-. T. N. s. 3.5, f?e, and Genera! In' >7- COMPANIES. 391 The distinction between corporation and unincorpora- Differouce tiou seems now mimatenal (e). corporate aud unincorporate companies " It is obvious " (says Lord Wensleydale) " that the '™™* "* ' 1 • 1 • 1 1 1 ■ 1 • 1 1 Reason for law as to ordinary partnership would be inapplicable to incorporating a company consisting of a great number of individuals perYord ' contributing small sums to the common stock, in which Wensieydaie. case, to allow each one to bind the other by any con- tract which he thought fit to enter into, even within tlie scope of the partnership business (/), would soon lead to the utter ruin of the contributories. On the other hand, the Crown would not be likely to give them a charter which would leave the corporate fund the only fund to satisfy the creditors. The Legislature then devised the plan of incorporating these companies iu a manner unknown to the common law, with special uowers of management and liabilities, providing at the same time that all the world should have notice who were the persons authorized to bind all the shareholders by requiring the co-partnership deed (of settlement or articles of association) to be registered (g) and made accessible to all, and besides including some clauses as to the management. All persons must, therefore, au persons take notice of the deed and the provisions of the Com- cont^enrs of' ' panies Acts iu force for the time being. If they do 'leed and -Vcts. not choose to acquaint themselves with the powers of the directors, it is their own fault, and if they give credit to any unautliorized persons, they must be con- tented to look to them only, and not to the company at large. The stipulations of the articles of association or the deed of settlement which restrict and regulate their authority are obligatory upon those who deal Directors' acta with the company, and directors can make no contract not binding, (f) Per Cotton, L. .T., in Anhworth v. Muvv, 15 Cb. I). 363, 375, 28 W. R. 965, 50 I.. J. Ch. 107. Jlyerii v. IWlgul, 2 De G. M. & G. 599- (/) Erne8t v. Aic/iollfi, Gil. I^.f. 401, per Lord Wensleydale. Bal- four V. Ernest, $ C. il. N. H. oui, 2'6 I.. J. C. P. 170. (g) Gompanies Act, 1862. ^1 1 i tl •ffi t- 297, 4 Jur. N. S. 851. (/. ) See J{« Athenajum, Ex parte Eagle. Co., 4 K. & J. 549, 27 L. J. Ui. 829, 6 W. I{. 779. (/ordon v. /i',a Fire . qu). jCb. 1). 522. " 3 3. J («) /'//(/., and see Ernest v. NicholU, 6 H. L. C. 407. 394 »ai»»» THE LAWS OF INSURANCE. the form prescribed by its constitution (o). But cases may arise in which the direction contained in the con- stitutive instruments of the company are not absolute ; and the Courts will be astute to prevent insurance com- panies from resisting claims by setting up the absence of a seal, or non-compliance with directions within their own special control. Thus, it has been held in Canada that, if they receive premiums, they must execute and issue a valid policy (p). Contracts incidental to the management of the company need not be by writing or under seal {q). Contracts of insurance must not only be evidenced in the manner required by the constitution of the company ; they must also only undertake permitted risks, and must be in the form prescribed, if any {r\ and contain the limitations of liability, if any, required by such constitution. In Canada all the Courts held that for an insurance company to set up the want of a seal (prescribed as necessary by its Act of incorporation) is such a fraud as a Court of Equity ought to prevent (s). Policy void, In an older case, while allowing that a certain policy insurers bound -ii. i-ii i.i.i. c ^trt to issue was void because not in the statutory form, the Courc fresh one. deemed the insurers bound to issue a valid policy of proper date {t). In Canada absence of seal not pleadable. Manager grantirg policy uUra viri'6 Where an insurance company is incorporated by public (o) Montreal Insurance Co. v. M' Gillivray, 13 Moore P. C. S9, 8 W. K. 165. (p) London Life Co. v. Wright, 5 Canada (S. C.) 466. (q) Companies Act, 1867 (30 & 31 Vict. c. 131), p. 37. Beer v. Ijondon and Paris Hotel Co., L. P. 20 Eq. 412. (r) Sec in Taunton v. Jioyal, 2 H. & M. 135, 33 L. J. Cli. 406, 10 L. T. N. S. 156, 12 \V. R. 549. Eailway Passengers' Assurance Co. 'a Act ( •7 & 28 Vict. cap. cxxv.), schedule. (s) London Life v. Wright, supra. Wright v. Sun Mutual, 29 U. C. (C. P.) 221. (t) Perry v. Newcastle Fire Co., 8 U. (J. (Q. B.) 363. See Fowler v. Scottish Equitable, 28 L. .J. (!h, 225, 32 h. T. 119, 4 Jur. N, S. 1169, 7 W. R. q. Prince of Wales insurance Co. v. Harding, E. B. & K. 183, 222, 27 L. J. Q. ii. 297, 4 Jur. N. S. 851. NCE. ion (o). But cases tained in the con- f are not absolute ; 3nt insurance com- Dg up the absence jctions within their sen held in Canada must execute and nagement of the nder seal (q). only be evidenced institution of the dertake permitted scribed, if any (/■), ly, if any, required t for an insurance seal (prescribed as i) is such a fraud t (s). at a certain policy iry form, the Courc I a valid policy of Drporated by public If, 13 Moore P. C. S9, . C.) 466. I, p. 37. Beer v. London 5, 33 L. J. Ch. 406, 10 eiigers' Assurance Co.'a f. Sun Mutual, 29 U. C. B.) 363. See Fowler 1, 119, 4.1ur. N, S. 1 169, iarding, E. B. & K. 183, COMPANIES, 395 statute, the power of its manager in relation to insur- ance must be taken to be known by persons insuring with the company. And if he make policies outside the scope of his authority, they will not bind the company. And if by the special Act the company can only bind itself by policy, and not by parol contract of insurance, the power of the manager is restricted by this limitation of the power of the principals (?'.). Speaking g'^nerally, an insurance company, like any other company, is bound by any deed under its seal (x), unless fraud (y) or illegality be established (z). Illegality Effect of ««»•» will include ultra vires acts, since corporations and ""'''* ^^^^' analogous bodies, being creatures of law, cannot lawfully go beyond the four corners of their constitution. But of informal mere informalities in the exercise of their duties by ^^^' directors will not invalidate a policy (a), for a deed of settlement and a private Act of Tarliament constituting a company afe to be construed as a partnership deed. To violate them may be breach of trust as between the diiectors and the shareholders, but acts not done accord- ing to them may bind the company (6). Where the articles of association of an insurance Appointment company appointed a solicitor to the company who was articies'oT ^^ to transact all their legal business, and not to be remov- association, able except for misconduct, it was held not to amount to an agreement to employ him, the articles being a con- tract between the shareholders alone, and, so far as the solicitor was concerned, res inter alios acta. Lord (it) Montreal Assurance Co.y. M'GiUivray, 1^ Moore P. C. 87, 121;, 8 W. R. 165. (x) Agar v. Athcnceuin Lis. Co., 3 ( '. 13. N. S. 725, 27 \,. J. C. I'. 95, 6 W. U. 277. I,V) Athenoium Ins. Co. v. Pooley,^ De G. & J. 294, 28 L. J. Ch. 1 19, 5 •hir. N. S. 129. (s) Arthur Average Association, 3 CL. D. 522, 32 L. T. N. S. 525, 23 W. \\. 939. ((() I'rince of Wales lus. Co. v. Harding, E. B. & E. 183, 27 L. .1. Q. B. 297, 4.1ur. N. S. 851. (b) Bill v. Darenth Railway Co., 1 11. & N. 305. Bargate v. Short- ridge, 511. L. C. 297. I'linoe 0/ IVak-s In.'i. ('o. v. Harding, supra, Sperings' Appeal, 10 Am, Eep. 684, 71 Peun. St. 1 1. 396 Solicitor cannot claim for costs as fl mere creditor. Debentures invalid when in fraud of company. Person who is party to act ultra Hrfs cannot claim. THE LAWS OF INSUHANCK. Cairns doubted whether the claiise was not void as against public policy (c). The solicitor of an insurance company cannot in respect of his bill of costs claim to be treated as an outside creditor and be paid in full, for he must be taken to have the fullest notice and knowledge of the constitution of the company and the limitation placed thereby on the liability of the shareholders. If he is a shareholder, the case is still stronger {d). If debentures are issued within the powers of an insurance company, but in fraud of the company, tliey will be invalid in the hands of a honci fide purchaser witliout notice, provided that the shareholders, on be- coming aware of ♦^he transaction, do not acquiesce or do other acts which would raise an estoppel (e). Whenever any party dealing with an insurance company knowingly combines with the directors to do any act ultra vires to the prejudice of the share- holders, c.y., to throw upon them unlimited liability when the directors are required so to frame policies as to confine the remedy of the assured to the capital and funds in the hands of the company, the shareholders might very fairly and reasonably deny their liability on that policy. ])ut it would be unjust to allow them to take advantage of an irregularity of the directors (who are denominated their agents) in cases wliere they cannot show that they have been in any way prejudiced by the irregularity, and the assured cannot be cliarged with any fraud or impropriety (/), (c) Ely V. /'ositivc Asmrunce Co., i Ex. D. 88, 45 1^. J. Ex.451, 34 L. T. N. S. 190, 24 W. 11. 338. Sec Summers v. Eldston, 18 .hir. 21 (H. L.). (d) ^adltr's Case, 16 K. .1. 571 (Alh. Arb.), per Lord (.'aims. (e) Athf/iutum v. Poolty (1858), 3 De G. & J. 294, 28 Ji. .). V\\. iio, I GiflT. 102. And see liritinh JJuinal lianling Co.\. CharnwoodFomt Jiaihvay, 18 Q. B. 1>. 714. (./■) Prince of Wales Ins. Co. v. Hardiixj, JO. B. & E. 183, 216, 27 L. .1, Q. K, 297, 4 --'ur. N. S. 851. Aqarv. Atheno-itm In.t. Co.. 3 C. n. ^. S. 725, 27 L. J. ( ". ['. 95. 6 W. II. 277. lNCE. was not void as ompany cannot in )o be treated as an 11, for he must be I knowledge oi' the 3 limitation placed eholders. If he is 3r (d). the powers of an the company, tliey ond fide purchaser hareholders, on be- not acquiesce or do ppel (e). ith an insurance I the directors to lice of the share- anliniited liability frame policies as to the capital and ', the shareholders eny their liability just to allow them f of the directors 1 cases wliere they ,ny way prejudiced cannot be cliarged :8, 45 L. J. Ex. 451, 34 V. Eldston, 18 .hir. 21 er Lord ('aims. , 294, 28 Ji. .1. V.\\. no, 7o. V. Charnicood Fonsl E. B. & E. 183, 216, V. AtJienifKin Jns. Co.. 7- COMPANIES. 397 The risks undertaken by a contract of insurance if risk takeu must be within the powers given to or taken by the assm-eTcau't company. If the company is not autliorized to take ''eco^er. the particular class of risk, the assured cannot recover for a loss by that risk in any case where he has notice, constructive or express, of the powers of the company. The Koyal Exchange Assurance, for instance, could not under its original Act insure on vessels engaged ill inland navigation, nor could the company do so until empowered by 41 Geo, III. c. 57. Tiie Courts have always been careful to prevent the MisappUcatiou application of the moneys of the shareholders who con- restrained by tribute to joint-stock undertakings to any purpose other '"J"'^°*'°°- than that which is legitimately the purpose and object of the association ; and if a case arises where the managers of such an undertaking so apply its money, any shareholder may obtain an injunction restraining them therefrom (ff). But if the company has power to grant policies Power to jmy against a certain risk, and a loss occurs by such risk to pdicy? property on which a policy has been granted excepting such risk, it would seem that the general body of share- holders could waive such exception, and that the directors of an insurance company usually have suffi- cient discretion given them in management to enable them to waive the exception and pay the loss, if it seems in the company's better interest to do so. To do so is, of course, a species of advertisement. The principle seems to be that what the company as a whole can do, its general agents can likewise do (h). Powers ^of investment provided by the constitution Powers of iavestmeut. ( k ••<»i«-Si 3P Secretary of company baiag transfereo of shares iu lru»t for company liable as contributory, but entitled to indemnity. 4<^0 THE LAW.S OF INSURANCE. (by signiug the deed of sottluiueiiL) ou tbc joint lud several covenant to pay calls therein contained. But the executors of a man who in 1846 applied for and paid the vleposit ou sh".res, and was registered in respect thereof, but never signed the deed of settle- ment, were held not liable to contribute in 1872 (0). The secretary of an insurance company, to whom shares in the company were transferred, to be held by him as trustee for the company, was held liable to con- tribute in respect thereof, but entitled to prove for indemnity. It would have been otherwise if the act constituting him such trustee was to his knowledge iiltra vircs(p). When executors of a shareholder claim the benefit of a statutory advertisement for creditors (by Lord St. Leonards' Act, 22 & 23 Vict. c. 35, s. 29), they will still be entered on the list of contributones, with a note of their claim as to full distribution of assets. A man whose name is on the register of a company which has been amalgamated with another to which he has sold his shares, is still liable as a contributory if his name remains on the register, even though the purchasing company have undertaken to have it removed. He will of course liave a remedy over for breach of the undertaking (q). So also if he has accepted shares in the transferee company insteaa of his old shax .^s, if his name is still on the old register iu respect of them (?•). Executor who If an exccutor docs not sell his testator's shares to lias sold I 1 . . 1 . testotor's some One whose name can be put on the register shares to some instead of the testator, but receives back from the (o) M'Kenzie's Executors^ ('use, i8 S. J. 223 (Eur. Arb.). (p) Eamim^s Case, Reilly (Alb. Arb.) 170. (0) Lee'n Case, Reilly (Alb. Arb.) 3, Buckley 352, 353 (i.st ed.). NicMl's Case, Reilly (Alb. Arb. ) 40, executor of deceased shareholder. (r) VownaWs Case, Reilly (Eur. Arb.) 8. Executors of shareholders who have issued statutory advertisement for creditors, liable to contributi'. Vendor of shares iu amalgamated company liable if on register. INCE. ) ou the joint iind I contained. 10 in 1846 applied and was registered the deed of settle- )ute in 1872 {()). jompauy, to whom srred, to be held by 1 held liable to con- :itled to prove for iherwise if tiie act to his knowkdse 3 (Eur. Arb.). ley 352. 353 (1st eJ-)- if deceased shareholder. COMPANIES. 401 ' claim the benefit editors (by Lord St. 5, s. 29), they will utoTies, with a note of assets. ster of a company nother to which he as a contributory r, even though the aken to have it a remedy over for >o also if he has ompany insteaa of )n the old register X'stator's shares to it on the register 2S back from the I aiiiiilganiating or tranferee company the amount paid ono not on the shares, and delivers up the share certificates Pf '''" "' to theiu, he will not be discharged from liability un So^ stui those shares as u contributory to the amalgamated or ''''^'^" transferor company, unless all outstanding creditors thereof have been settled with, or have assented to the transfer (s). A contributory wlien called on is entitled to have Contributory deducted from the calls made on him the amount of hale bonus bonuses appropriated out of profits to his shares and 'i«'i"cted credited thereon (i). ''■°™ '=*"^- Forfeiture of his shares for non-payment of calls will not relieve him from contributing in the winding up (u). •= If prior to the commencement of the winding up a shareliolder has taken steps to transfer his shares, and through no fault of the directors has failed to complete the transfer, he remains a contributor (v). So if they disapprove the transferee (x). Liability notwitii- standiug forfeiture for not paying calls. Transfer must be complete or shareholder must contribute. If the shareholder has liquidated, and his trustee Liquidating disclaimed, neither can be made a contributory if the ^I'^'^i^oWer company has proved in the liquidation for unpaid ^^1^"?''' calls (y). or could have so proved, but has failed to do so, since the company's claim is not incapable of being fairly estimated within the Bankruptcy Acts (z). Where free shares fully paid up were distributed Promoter', amongst the promoters of an insurance company the '^'T' ^""^ recipionts were held lialle to contribute in the winding Siity'Z up of the company, as the transaction was a fraud on '=°"*"''"*^- the other shareholders, but without prejudice to their («) LuHcey's Case, Keilly (Eur. Arb.) n (t) Cathie' H Case, Reilly (Eur. Arb.) 27 (M) Bridf/er's and Neil's Case, 4 Ch. App. 266 «') ^«a<^'* Oase, Reilly (Eur. Arb.) 19.' M Lloyd's Case, Reilly (Eur. Arb.) ^c {y) Brown's Case, Reilly (Eur. Arb.) 32. v-y Ke Mercantile Mutual Marine, 25 Ch. 1>. 415- 2 C 402 THE LAWS OF INSUIIANCK. Director liaMo to contributo in respoct of Hliaros nocHseary to qualify. right to an iiuleiiinity from tliu directors who guve the shares (a). Where the articles of association provide that no one shall bo eligible as a director who does not hold a certain number of shares in his own right, and tlmt any director who ceases to hold the requisite number shall bo disqualified, any one who is elected and acts as a director without qualifying will be liable as a contributory to the number of shares which he ought to have held, since by acting as director he enters into an implied contract to take the qualifying shares (h). And where the brother of a managing director executed the deed of settlement in respect of part of a number of shares improperly given his brother by the directors, he was held liable as a contributory in respect of such part (c). The same principle applies as between an insurance company and its shareholders. Where the latter have been fraudently induced to take shares, they will have no defence to an action for calls thereon unless they have repudiated the contract and done no act to make themselves liable as shareholders after discover- ing the fraud. But till the shareholder has succeeded in severing his connection with the company and has ceased to remain on the register, he will be liable with the rest to contribute within the limits prescribed in the constitutive instruments to the payment of claims on the company (d). Holding With regard to the holding of land by insurance of land. • , . • Two questions, companies two questions arise — (a) DarneU'n Case (1857). 3 Jur. N. S. 803. (h) Stephenson's Case, 45 L. J. Ch. 488, per.Tessel, M.E. (c) Lord Claude Hamilton's Case (1852), 8 (,'h. App. 548, 42 L.J. Ch. 465. HolVs Case, 15 Jur. 369, per (Jranworth, V.C. {d) Deposit and General Life v. Ayscowjh, 6 E. & li. 761, 26 L. .1. Q. B. 29, 2 Jur. N. S. 812. See Partridge v. Albert, 16 S. J. 199, per Lord CairnB (Alb. Arb,). Shareholder fraudulently induced to take shares. NCK. ctors who gave the ti provide that no /lio does not hold a ivn riglit, and that 3 requisite number is elected and acts ill be liable as a es which he ought ctor he enters into ifying shares (h). managing director respect of part of a his brother by the tributory in respect iween an nisurance ere the latter have shares, they will alls thereon unless nd done no act to iers after discover- older has succeeded 3 company and has 1 will be liable with imits prescribed in payment of claims land by insurance .Tessel, M.R. (,'h. App. 548, 42 L. J. vorth, V.O. 6 E. & li. 761, 26 L. J. Albert, 16 S. J. 199, per COMl'ANIES. 403 (i) Whether a company can hold land at all ? (2) Whether, having regard to the Statutes of Mort- main, shares in a company holding land can bo devised or bequeathed for charitable purposes ? With respect to question (i), the power to hold Power to lands may, speaking generally, be said to depend upon ^°^'^ '*"''• the powers conferred by the instrument constituting the company (t). Where a company is registered under the Joint-Stock Companies Act, 1844 (7 & 8 Vict. c. 1 10), it may by s. 25 purchase and hold lands, and the power of a company registered under the Act of 1862 to hold land is unrestricted (/). With respect to question (2), shares in a partner- Shares lu ship holding land, such partnership not being a joint- Jal-Sship stock company, are an interest in land under the ^'^'"" Mortmain Act, and therefore cannot be disposed of by AoT"*'" will to charitable purposes. But shares in a joint-stock company holding land. Shares iu whether the company be corporate or unincorporate, are iomSiaS. not within the Statutes of Mortmain, and will there- fore pass by will to a charity ((/). The distinction between the case of a joint-stock and Reason for a non joint-stock partnership holding land is this, that "'" '^'^"''^"on- in the case of a joint-stock company the intent and meaning of the partners is that the partnership is to be ni the nature of a corporation, and intended to have perpetual existence, with bodies of members ductuating from time to time, just like a corporation. No partner is ever supposed to have anything to do with the land except as one of the society through the machinery pro- vided by the Act or deed of settlement, and is never intended to have anything to do with the land in any (e) Brice Ultra Vires 73. (/) 25 & 26 Vict. c. 89, ss. 1 8-21 ^t;^f^^ ft""A^5 f'h, IX 363, 50 r. J. Ch. 107, 28 W. IJ. g6s. ~Jf'-^ V. r^, tgall, 2 Do G. M. a Ci. 599. 25 & 26 Virt. c. 89, s. 22. 404 Policy secured on real estate of company not within Mortmain Act. THE LAWS OF INSURANCE. shape or form, except to get the profits from the land, or from the business of which the land is a part, and it is always intended that every share should pass in the market as a distinct thing, and in point of bene- ficial ownership wholly unconnected with the land, or with the real assets of the partnership property of the company (h). A policy secured on the property of a company which consists partly of real estate is not so connected with land as to make a gift of the policy to a charity invalid under the Mortmain Act, whether the policy- holder is or is not a member of the company (i). All life insm;- All life insurance associations registered or un- ancecompanies •■iiji/-n -aj, ^ are under Act registered under the Companies Acts, corporate or unui- of 1870. corporate, except those registered under the Friendly Societies Acts, are within the Life Assurance Companies j Act, 1870 (k). Fire insurance companies are under the ordinary law as to joint-stock companies, but the business of life insurance companies is to a certain extent regulated by special statutes. '•« MK. ■:£ Deposit by life companies of ;^2O,O0O. •»«NMi». nil* *ttl^, ,S-*»: «*^ « "Z. -* Investment thereof. By the Life Assurance Companies Act, 1870,8,3, every company commencing the business of life assur- ance within the United Kingdom, before it can get a certificate of incorporation, must pay into the Chancery Division of the High Sourt the sum of ;^20,ooo (l). This sum is to be invested in one of the securities usually accepted by the High Court for the investment of funds placed from time to time under its administra- tion. The coiiipany making the deposit is to choose the particular security and to receive the income there- (/i) Per James, L.J., Ashivorth v. 31unn, 15 Ch. D. 363 at 368 50 L. J. Ch. 107, 28 W. R. 965. li) March v. Attorney- General, 5 Beav. 433. (k) 33 & 34 Vict. c. 61, 8. 2. (l) 33 & 34 Vict, c 61, 8. 3, as amended by 34 & 35 Vict. c. 58, s.i. lNCE. fits from the land, land is a part, and are should pass in in point of bene- d with the land, or lip property of the )rty of a company is not so connected policy to a charity whether the policy- company (i). registered or un- ;, corporate or unin- inder the Friendly isurance Companies under the ordinary the business of life 3xtent regulated by ies Act, 1870, s, 3, siness of life assur- before it can get a y into the Chancery a of ;^20,ooo (I). le of the securities ; for the investment nder its administra- .eposit is to choose e the income there- 15 Ch. D. 363 at 368 34 & 35 Vict. c. 58, S.I. COMPANIES. 405 from (m). On petition to the Court, the company before registration may obtain an order to change the invest- ment (n). And the said sum in court is to be retuined to the company so soon as the life assurance fund accumulated out of the premiums reaches ;^40,(XX) (0). In order to entitle a life insurance company to receive Eetum thereof, back the deposit of ;^20,ooo made under sec. 3 of the Life Assurance Companies Act, 1870, the sum of ;^40,ooo required by that section to be accumulated must have been accumulated out of the premiums received on the policies of the company, even where on an amalgamation of two companies one of such com- panies has an accumulative fund exceeding ;^40,coo (p). Once the ;/^20,0CX) is paid into court, all orders with respect to paying the same into or out of court, and the investment or return thereof, and the payment of tae dividends and interest thereof, may be made, altered, and revoked by the like authority and in the like manner as orders with respect to any other money to be paid into or out of court, but subject to any rules made or to be made by the Board of Trade as to the payment and repayment of the deposit, the invest- ment or dealing with the same, the deposit of stocks or securities in lieu of money, and the payment of the interest or dividends from time to time accruing due on any such investment, stocks, or securities in respect of such deposit (q). The Court will only allow invest- ment in securities ordinarily accepted by the Court-. The deposit may be made by the subscribers of the The deposit memorandum of association of the company, or any of '® P*y* °^ *^°"** (m) The object of the Beotioii is to prevent bubble companies being created simply for sale, and to test bona fides, 202 Hansara 1171, {n) He lhv£ liihhon Life, Accident, JIutiud and Industrial ^innur- ance Co., 6 Times L. K. 6. (0) 34 & 35 Vict, c. 58, s. I 60 L. J. Ch. 14, ^8 W. 11. Ch. D. 684. r- H Ip) Ex parte Scottish Economic. ) 35 & 36 Vict. c. 41, 8. 3. (f^) 33 & 34 Vict. c. 61, 8. 2. (d) Whittingham w Tlwrnhorov^jh, 2 Vern. 206, Preo. Ch. 20. Boss V. Bndshaw, i Wm. Bl. 312, 2 Park Ins. ^Sth ed. 934. (e) 28 & 29 Vict. c. 90, 8. 27. m ( 410 ) I '515' SSI. CHAPTER XXI. EIGHTS OF POLICY-HOLDERS. 33 * 34 "^'ict. Under the Life Assurance Companies Acts ( 1 870, 1 87 1 C. 71 "^d &'}i! \ ' ' / y Vict.'c, k8, 1872) the policy-holders of any company, however con- 35 & 36 Vict. ■ stituted. are entitled— 35*36 c. 41 Poiicy-holder is creditor. stituted, are entitled- (i) To copies of the statements of business, assets and actuarial reports required by these Acts to be made (a). (2) To copies of the shareholders' address- book, on paying a sum not exceeding 6d. per 100 words (b). (3) To printed copies of the deed of settlement, on payment of a sum not exceeding 2s. 6d. (c). Further, one-ten^h of the policy-holders in any insurance company can stop all amalgamation or transfer of life insurance business by or to that company (d). These rights of knowing the constitution and con- trolling the dealings of an insurance company given by statute are quite independent of those accorded to them by the constitution of the company itself. A policy-holder in a proprietary company is simply a contingent creditor. He is under no liability what- ever to other policy-holders or to the company itself, since he need not even continue his premiums. He cannot interfere in the management of the company, («) 33 & 34 Vict. c. 71, s. IT. (b) Ibid., s. 12. (c) Ibid., 8. 13. (a) Ibid,, s. 14. RIGHTS OF POLICY-HOLDEIIS. 411 DEES. 9 Acts (1870, 1 87 1, )any, however cou- of business, assets these Acts to be .' address- book, on 00 words (b). of settlement, on 5cL (c). y-holders in any amalgamation or 3 by or to that stitution and con- company given by e accorded to theui ;self. 3ompany is simply no liability what- he company itself, is premiums. He t of the company, except, perhaps, to restrain a violation of the deed of settlement (c). In companies where policy-holders are allowed to Whether share in the profits, participating policy-holders are not ^oHcyihoidfr usually liable as contributories (/), since the obligation liable as to contribute depends on other considerations than ^'^'^ '^^'" sharing profits, which will alone not make such persons partners (g). Even where a policy-holder might be treated by an Policy-holders outside creditor of an insurance company as a partner hofdew " hi the concern, the shareholders cannot insist on his contributing unless there is somethin<]; within the four corners of the deed of settlement to make him so liable. Even where a policy-holder participates in profits, has power to vote at meetings, and on winding up is entitled to the surplus assets after the shareholders have been paid in full, these are only advantages to induce him to take out a policy, and he does not by so doing, nor by any ordinary deed of settlement, make an under- taking to contribute with the shareholders towards meeting the liabitities of the company (h). Where in a mutual insurance society some of the Non-iiabiiity policy-holders participate and others do not participate I'ng^JJi^^y.''*' in the profits, but a condition is indorsed on all policies toilers where issued by the society, that all claims are to be limited be^'harS^on to the stock and funds of the society, in virtue of such l^J"^^ "^ condition the participating policy-holders, though they are in reality the only members of the mutual society, cannot be made to contribute (i). 46: (<-) Aldebert\. Leaf, i H. & M. 681, 10 L. T. N. S. 185, 12 W. 1{. 2. (,/■) Ke English and Irish Church and Unirermt'i Assurance Co.. I H. & M. 85, 8 L. T. N. S. 724, 11 W. H. 681. [>trachan'^ Case, 16 S. J. 572 (Alb. Arb.). Hummel's Case, 16 S. ,(. 65 (Alb. Arb.). (/) HummeVs Case, 16 S. J. 65 (Alb. Arb.). I 412 THE LAWS OK INSURANCE. i^"SuM ''^^ ^^"'^^^ ^ mutual society of the older typjj, all policy- in mutual compitny, Construction of a mutual company. I'V.IW 8£^ «t;= =S* ;:« r?'* :£» ««2 *:'S '•»•« .»« •"•H "•rt £:% i3» O" «<•«» •« li^ia* kC lr««. .MMi iS'te mm ^% 'MM ^■mu, «« *<<»i.«« %;-!« MM* ".3;: jp *«.i.i>4i' ■<•' Policy-holders as contri- butors. liolders were held bound to contribute. Marine mutual companies are of this kind (k). Certain societies pro- vide for gradually creating an insurance fund, and paying off the original members in favour of policy- holders not liable. It is assumed that the participating policy-holders will make payments from time to time in the shape of premiums upon their policies, but the basis of the whole arrangement of this company, and of any mutual insurance company, is this, that there will be, if not a legal compulsiou, yet a moral compulsion on persons who have commenced insurances to keep them up and to pay the premiums which nmst be paid for that purpose. That is the basis of the contract and foundation of the arrangement in a mutual company. Those who join them know that they have that security, and that only for the swelling and increase of the assets of the compa..y (l). Where a life insurance company was formed upon tlie mutual principle, and the articles of association pro- vided that the company should consist of two classes of members— namely, shareholders so long as there should be any shareholders, and assurance members, defined to mean policy-holders with participation in profits, and registered as members of the company; and when the shareholders should be paid off under the scheme provided for, then tlie company w;r to consist of assurance members only— it was held tliat the policy- holders were contributories, but that they could not be called upon to contribute until the shareholders had been exhausted (w). In a winding up, where an assignee of a policy {k) Heed v. Cole, 3 Burr. 1513. (0 Hummel'x Vase, 16 tS. .1. 65, 68 (Alb. Arb.). Mz Albion Life Jm. Co., 16 Cli. D. 83, 49 i^. J. <;b. 593, 43 L. T. N. S. 527, 29 W. i{. 109. lie Great liritain Mutual Life, i6Ch.l). 247,4-,].. t. N. S.684, 29 W. K. 202. Bath's Case, 11 Ch. D. 386, 48 L. J. Ch. 411, 40 L. T. N. S. 453. 27 W. I{. 653. (m) Wimtom's Case, 12 Ch. D. 239, 48 L. .J. Ch. 607, 40 L. T. N. S. 838, 27 W. K. 752. IlIGIITS OF OLICY-HOLDERS. 413 aee of a policy How com- panies' funds to be applied. Fund for pay- ment of losses. What are surplus profits. participating in profits claimed to be entitled to a Right of share in the life assurance fund or profits, if any/o^j^^^^jj^j. it was held that he was entitled to a share in respect patingln of the value of his policy, but not as to the profits, wTnding uj. since none had been declared, nor was it shown that any ought to have been declared (n). "The capital stock of an incorporated insurance company is not the primary or natural fund for the payment of losses which may happen by the destruction of the property insured. The charter of the company contemplates the interest on the capital fund and the premiums received for insurance as the ordinary fund out of which losses are to be paid. And the surplus of that fund, after paying such losses, is surplus profits within the meaning of tne charter, which surplus profits alone are to be distributed from time to time amono the stockholders. The unearned premiums received by the company upon which the risks are still running, and which may therefore all be wanted to pay losses which may happen upon those risks, are not surplus profits, which the directors are authorized by the charter to distribute among the stockholders. The capital stock of the company is a special fund provided by the charter to secure the assured against great and extra- ordinary lodses which the primary fund may be found insufficient to meet. And if it becomes necessary at any time to break in upon this special fund to pay such extraordinary losses, it must be made good from the future profits of the company before any further divi- dends of those profits can be declared. The directors of an insurance company are not whole of justified in dividing all the interest or premiums S'rt'be*"'' in hand at the time when a dividend is declared, but divided, should always leave a surplus fund in addition to the capital stock sufficient to meet probable losses on risks undertaken and unexpired (0). Capital stock available for extraordinary losses. Drafts on special funds to be made good. 1. 607, 40 L. T. N. S. (n) Ee Lion Life Assurance Co. , i Times L. E. 269. (0) >Scott V. Eagle Lis. Co., 7 Paige (N. Y. Ch.) at 203. 414 THE LAWS OF INSUUANCE. ass: '■—.10 Where directors liable for undue distri bution of funds. Right of inter forenco where afiFairs of com- pany mis- managod. From what time policy- holder's charge on company's funds operates. When company's liability arises. If they abuse tlieir discretion by siicli premature division, and an extraordinary loss arises, they may make themselves personally liable where the capital stock is more than exhausted by the amount of losses. If they u(!gloct to Jivide the profits without reason- able ov piuhnV.!,' cause, they may be compelled to do so so lorjg as Liie company is solvent. P-nt after insolvency it would be highly inequitable to takt tlie surplus fund and divide among the stockholders, and leave the insured, whose premiums had increased ^jiat fun'J, to sustain a loss (p). A policy-holder has no right to interfere with iiny- thing done under the provisions of the deed of settle- ment, even in the case of tlie funds bsmg invested oa any improper investments, and it would be most mis- chievous to allow any such interference on liis part with the management of the business by the directors. But if the funds of the company are about to be apphed wholly regardless of the deed of settlement, he is entitled to ask the Court to restrain such application. But to enable him to do so there nmst be clear, distinct, and positive injury threatened to the fund which was avail- able for his claim (q). A policy-holder's charge, if any, on the funds of the company which has granted the policy, does not operutft on the fund charged at the date of its issue, but at the moment when it becomes a claim, otherwise no dividend could ever be declared. When it does become a claim, it takes priority from the date when it became such, not from the time when it was payable. In a re-insurance life policy the liability arses on proof of death and of payment by the insurers under their original policy (r). (») Scott V. J'Jagle Ins. Co., 7 Paige (N. Y. Ch.) 188, 203. See Nicholson v. Nicholson, 9 W. R. 677. (?) Aklchert v. Leaf, 1 H. & M. 681. 10 L. T. N. S. 185, 12 W. I!. 462, 3 N. K. 455. (r) Ex parte Prince of Wales /Society, Johnson 633, 28 L. J. Oh. 335, 32 Iv. T. 195, 7 W. R. 137, 300. 415 Right to receiver. Suit main- tainable by policy-holder in mutual society for contribution to his loss. Liability of company to Eolicy- olders. How limited. RIGHTS OF POLICY-HOLDERS. I'lvuii when there is no charge, it seems the policy will give a right to a receiver (s), but it will not give priority over general creditors {t). A suit in equity can bo maintained by a member of ;i mutual insurance society against the managing com- mittee to recover by a contribution among the members the amount of his loss {u). The liability to policy-holders, «&c., may be limited— (i) By the constitution of the company. (2) By particular provisions in the policy. Where the limitation is eflected by (i), no notice thereof need ap])ear on the policy, since all who deal with companies are now deemed to have notice of their constitution. And when a company alters itself duly from an unlimited to a limited, as may now l)e done under the provisions of the Companies Act, 1862, it becomes thenceforth needless to insert any provision in the policy, the addition of the word " limited " to its style being sufficient. Moreover, in case of such change provisions in the deed of settlement as to inserting such limitation in the policies become superfluous and can be struck out. By .the Companies Act, 1862, s. 38, sub-s. 6, it is Liability of provided that nothing within the Act shall invalidate ^nS'Sf/™ any provision in a policy or other insurance contract J?*?^^^ j, limiting the liability of individual members on such poHcy. ^ policy, or making the funds of the company alone liable in respect of such policy or contract {x). ^il»t (s) Law V. London huliHputaUe, i K. & J. 223, 24 \. J Ch iq6 22 L. T. 208 3 W. ;. 15s, I .Tur. N. S. 179. Re Athemeum Life, hx mirte Lagle Co., 4 K. & J. 549, 27 L. J. Ch. 829. 6 W. R. 779. (0 Re Stnte Fire, i De G. J. & S. 634, 34 L. J. Ch. 436, 8 L. T. >. s. 146, 1 1 W. R. ion. Re Llnglinh and Lrtsh Church Co., 1 H. & il. 85, II Vv'. R. 681, 8 L. T. N. S. 724. («) Ilutchlnjion V. Wright, 25 lieav. 444. Robaon v. JLCreiaht Beiiv. 272, 27 L. J. Ch. 471, 31 L. T. 21, 6 W. R. 385, 4 Jur. K. S. 269. ^ Jl T ('■) See per Jesse!, M.R., Ee Accidental Death Co., 7 Ch. D. i;68. 47 f^. .1. Ch. 396, 26 W, R. 473. ' ' ^ **• 4i6 THE LAWS OF INSUUAXCE. Liabilitv uudertaken by policy ultra virex. '5>. ""^ Sti «»(■ urn' In all policies it is usual, if not invariable, and except lu limited companies necessary, to stipulate that the funds of the insurance company shall alone be liable, uiid that individual shareholders shall be excepted from all uuTaidSe'" fT!'^^ ^'^^'^''^y- ^'»P«>d calls Come within the dehnition of funds (y). When liability in limited to the funds, it means to the funds as they ought to be made up, and includes the still unpaid portion due on shares taken (z). The Hull and London Fire Assurance Company was registered under 7 & 8 Vict. c. 1 10. It? deed of settle- ment took power to j-rant marine insurances, but clause 77 thereof specially required that the funds of the company should alone be made liable, and s. 44 of the Act that policies should be signed by two directors or an ofhcer expressly authorized thereto by resolii- tion applying to the particular case. A policy issued without any qualification as to liability was held idtra vires, and such as could not be granted either by the directors, or any agent appointed by them (a), and nothing could be recovered thereon. But possibly the grantee may insist on having proper and intra vires policies granted to him (b). And in support of this view it may be observed that a memorandum, signed by three directors, stipulating that on receipt of certain premiums the company would guarantee an assurance, and issue, if required, a stamped policy in the authorized form, has been held binding on the company and ta create a good equitable debt (c). Where no debt can be established and the contract (?/) Bowes V. Hope &,c!ety, 1 1 I[. L. C. 389, 397. per Lord Westbury. Coghhn's Case, 17 S. .T. 127. (s) Evans v. Corevtry, 5 De G. M. & G. 911, 2 Jur. N. S. 557. 25 L. J. Cb. 489, 4 W. R. 466, affd. 8 De G. M. & G. 83?, 1 Jur N ,S. 1 22s, 26 L. J. (Jh. 400, 5 W. K. 436. (a) Hamhro v. Hull and London Fire Co., 3 H. & N. 789 28 L. J. Ex. 62. {h) Ibid. PenUy v. Beacon Fire Co., 7 Grant (U. C.) no. }Yriqht V. Zo«(?on, (C-c, Co., 5Canada(S. C.) 466. (c) In Re Athenceum Life Co., Ex parte Eaqle Co., 4 K. & J. saq, 25 L. J. Ch. 829, 5 Jur. N. S. 1140, 6 W. R, 779. and the contract J7, per Lord Westbury. HrfillTS OF I'OLICV-irOLnERS. .,, is wholly ullm cireH, beii.g on risks not allowed by the art.dt.8. policy-holders cannot claim as creditors, but only for premiums paid {il). The grantees of policies of insurance l,argain toi-oUey holder receive a sum of money to be paid in a future event '■""""^ct'tro. Whutever may be the property possessed by the ^Xl Krautors, the grantees have not by this contract any immediate control over it, or lien upon it. The grantors or their trustees continue to have the entire control or management over the wliole fund The real estate or chattels real may be sold and converted into pure personalty, and pure personalty may bo converted mto chattels real, and this state of things may continue not only during tlie contingency upon which payment de[)ends, but after the contingency has determined for the grantee acquires no specific lien after the payment lias hecme due. Even in default of payment when due, the grantee cannot by reason of such default only resort immediately and at once to chattels real but must resort to legal process, which will not affect the land possessed by the insurers at the time of the con- tract, although it may in its final result affect such land as the office may have at the time when the process IS executed. Ordinarily the grantee has nothing but a right of action from the date of the contract until payment {e). not withm the Mortmain Acts, and on the other that a «»' secured policy-holder under such a policy would not be a *'""'"• secured creditor in case of liquidation. But where a life policy was granted stipulating that Provisiou 1 e funds remaining at the time of any claim or demand Se& unapplied and undisposed of, and inapplicable to nrior -trg"" *■ from proof ~ ' — — , of death. ie) March v. Attorney. General, 5 Beav, 433, per I.onl Langdalc. 2 D 41 8 Star «Si^ Company not a trustee of policy- money on death of assured who has assigned. What amounts to covenaut to pay out of particular funds. THE LAWS OF INSURANCE. demands, should be liable to answer the demand, and negativing individual liability on the part of the directors, it was held that this constituted a charge on the funds, and that it took priority from the date of proof of death, although not payable until three montlis later (/). An ins'irance company which has granted an ordinary policy of life insurance is a debtor, and an assignee of such policy becomes, on the death of tlie life insured, a creditor of the company. The company is not in such case a trustee or a stake-holder, and should not pay the policy-money into court under the Trustee Eelief Act (f/). No precise or technical words are necessary to create a covenant ; and whether it be a covenant or not depends on the intention of the parties, and tlierefore where directors had stipulated that neither of them as directors should be liable to any demand for loss, except under the articles of the society, it was held that the instru- ment might be considered as a covenant to entitle the insured, in case of a loss by tire, to receive a remunera- tion out of the funds of the society to the extent of such funds (h). " The capital stock," " the capital stock and funds,'" " the stock and funds," " the capital stock and effects," with or without reference to prior claims, or limitation of the charge to the amount of such capital stock funds or effects undisposed of and inapplicable to prior claims under the constitution of the company, are variously made liable in the policies of unlimited companies (0- No charge is created on the funds of a company by Job (/) Re Athemvum Life, etc., Co., Ex parte Prince of Waks Co., )hnson 633, 28 L. J. Ch. 335, 32 I.. T. 195, 7 W. 11. 137, 300. ((/) Matt/mo V. Northern, <(r., Co., 9 Ch. D. 80, 38 L. T. N. K. 46S, 45 L. J. Ch. 562. Deshoroufih v. Harris, 5 De G. M. & G. 439. (/<) Andrews v. Ellison, 6 Moore (C P.) 199. (i) Re State Fire, 9 L. T. N, K. icS. has "ranted an of a company by 419 I'olicy making funds solely liable does not create charge, and holders rank with general creditors. Effect of provision that funds shall make good specified sum. RIGHTS OF POLICY-HOLDERS. the terms of a policy which makes the stock and funds Of the company liable alone. Consequently the holders or such policies have no claim on the assets of the company m preference to general creditors (/.). A provision in a policy, that tlie capital stock and unds of the said company shall be subject and liable to make good the aforesaid sum of £ to the assured, his heirs, executors, or assignees, means that the money shall be paid-.:..., that the stock shall be applied in the payment, or that the company shall pay It out of ^he stock-it does not amount to an equitable assignment of the stock, but is merely a covenant to pay out of stock so far as it will go (I). ProTerW of thf'"^ ''''"''' '^'""^ ""^^^ '' '' the Where policy property of the company remaining at the time of anv T''"'' c aim inc uding unpaid capital, and speciallv excepts P-pTrt^y^f it Tw fn i1 "'-T ^1 "^^"' ''''^'' P--^^ ^t =-- aw against an individual shareholder; and it will not '=''^'* ^« «"''^- help the policy-holder that tlie deed of settlement contains terms more favourable to the assured tlian the ovtlJT- Z '^1- '^'' ^^P^'^^ ''''^ ^' fraudulently overstated in the policy (m). So also where the liability is imposed upon the funds remaining unapplied and undisposed of and inappli- cable to prior claims (n). Where the liability of shareholders in an insurance Liability . , . ' '" "" -iiiouitiuut! i-iiaoiiity company is by provisoes in the policy limited (in case I'f *"* ""l of insolvennv^ fn fl.. „ . 5.. "^ ., V'" ^'ise policy can" can't bo "t insolvency) to the amount then unpaid on Teh «'S."y tel^' / P'"fy-'">"ers cannot, by bringing action for S/o,' iracli of contract, in effect make the liability un- ""'"* ..51!.:! ct'?6i '"''''"'"' ' '''■ "• '^' «4- 3« ^^ i"^ «. 468. ("') ^i'rham'x Ca.e, 4 K. & .1. 517 (,858). (") Re Athenaeum Ufe, Ex parte Prince If Wales Life, supra, note (/). If! «t::r ::»' i:« ri' «c; iS i «* «w« i;;? "J- k«>v „».• £:-at iS» •3» •W>.IM -■« »•*»«« •**** •*;* >.«. laHt Site tN» a::® ■*«' !»■<■► -» »•'«. MK aw i;s.yc :9 •»»» SM a.:^ :> •*,..„, •MT 42p ^V'Lero liability limited by policy, covenaut to indemnify is also limited. Funds appro- priated to secure polic^'- liolders must be reserved for them. Costs of getting in funds :;ppropriated tu polic)- holders to bo horuo by BiiareLolders, THE LAWS OF INSUIJANCE. limited (o). To do so would enable persons who have contracted to seek their claims from a certain limit(!d fund to enforce them against another and unlimited fund. Policy-holders under sucli policies have iio personal remedy (p). Where such is the case a covenant to indemnify is not unlimited in its scope, and does no more than bind and affect the paid and unpaid capital of the indemni- fying insurer (q). Nor can the policy-holders get the costs of windiiii,' up out of contributories who have compounded under s. 1 60 of the Act of 1862 and the Eules of 18G2, sched, iii. form 56 (r). If the liability of shareholders be limited by the policies (or in other manner whereof the policy-holders have notice) to the subscribed capital of the company, the funds thereby indicated must be kept entirely for the policy-holder (,s), and the costs of getting in tlie unpaid capital, which is hypothecated in this manner to the claims of tlie policy-holders, will fall not on them, but on the shareholders, since such costs are really costs of settling the matter between the joint- stock partners themselves (/). 35 {o) Lethbridf/c v. Adams, 13 Eq. 547, 26 L. T. N. S. 147, 20 AV. Ji. '2, ip) lie Pro/'usioiial Lif,; 3 Cb. App. 167. 17 Ji. T. N. S. 631, 36 L. J. Ch. 442, 16 W. II. 295. Jti! Athnuiiuin Life. 3 De (i. & J. 660. Dvrhanrs Case, 4 K. &.). 517. Bril'x qmi. (t) lieAf/ririd/iiris/ Cattle Insurance Co., loCh. App. i, 44 L. .T. Cli. 108, 31 L. T. N. N. 710, 23 W. 1{. 219. Ke Art/mr .Ireraqc Co., No. 2, 24 W. I?. 514. Ro Professional Life Co., 3 Cli. App. 167! 36 L. J. Hi. 442, 17 L. T. N. S. 631, 16 AV. 1{. 295, 1867. Re London Marine Ins. Co., 8 Eq. 176, 17 W, E. 784. T. N. S. 147, 20 AV. ];. IJKJUTS OF I'OLICY-lIOLDEllS. 421 Ikit the policy-holders :annot insist on further calls after exhaustion of assets to recoup them for assets spent in paying general creditors, neither will they be postponed to general creditors, but will rank with them (u). The deed of settlement of the Albion Insurance Company provided that before any dividend was declared a reserve of not less than two per cent, of the .annual interest of the sums advanced should be appro- priated until the whole capital (of ;^ 1,000,000) should b« raised as a permanent fund to provide against losses. The funds were accumulated, though no reserve fund was actually set apart, and bonuses were trien- nially divided. The Albion amalgamated with the Rosm-ve fund Eagle, and each shareholder was given the option of '^ *'''''^"*'" receiving £t,o a share, or having an " allotment of shares and receiving a share of the surplus assets. It was lield, in a question on a settlement comprising some Albion shares, that tlie share of the surplus assets was capital, since the surplus assets were a reserve fund, and not income, though the triennial Bonus there- bonus, coming out of the same fund, seems to have [^"i" been treated as income {x). And where a life insurance company issued "partici- Bonus patmg policies," according to the terms of which the chaigeabio gross profits of such policies were divided quinquen- income tax. nially as follows— viz., two-thirds to the holders of such policies then in force, and the remaining third to the company, which bore the whole expenses of the busi- ness—the portion remaining after payment of expenses constituting the only profit available for division amongst the shareholders, the House of Lords decided (Lord Bramwell dissenting) that the two-thirds returned ((') lie En(ill.'«"^''^nce society granted immediate life annui- lunipsuin ties in consideration of u single sum i)aid at the same iucnnif tux. '^""^' '\"^i deterred or contingent annuities in considera- tion of a similar payment or of periodical premiums, and the society claimed to deduct from the amount of their profits chargeable with income tax the sums paid by them in discharge of such annuities, and tlie annuities were held not to be paid out of "profits or gains" witli- in the meaning of 5 c^, 6 Vic. c. 35, s. 102, and there- fore not chargeable with income tax in the iiands of the society (^ but where upon the transfer of an insurance business it was part of the consideration that the trans- ferees should employ the transferor's manager at a fixed salary, with power to the transferees to commute on payment 0! a sum calculated upon life tables, and after a short time they commuted, it was held that the amount paid on commutation was " employed as capi- tal," and so liable to income tax (a). •3» •*kJW i'*MW mm* «M». t': Maii> •iSiS »m ^%;'^ ^m- i^^m »«»- •»«*«. wm ^z:x :s .f ••atMit 2ff Income tax. Deduction of premiums. B^- the Income Tax Act (16 & 17 Vic. c. 34), s. 54, provision is made for the deduction of the premium on life insurance from assessments under schedule "D" and by 16 & 17 Vic. c. 91, s. i, tlie benefit of tlie pro- vision is extended to any person who shall have made insurance on his life "in or with any insurance com- pany existing on ist Nov. 1844, or in or with any in- surance company registered pursuant to 7 & 8^'ic. c. no," and it was held that tlie provision did not apply to an insurance with a foreign company although such company was in existence on ist Nov. 1844, 'iiid had an office in England (&). 55 L. .f; Q. B. 9^, S3 r. T. 634, 34 W. ]{. 233. '' (z) Gresham Life .Unirwux .^chti, v. Huile.^, 1802, App. (Jas. 309; but «ee CuHtoms and Inland Revenue Act, 1SS8, sec. 24. sub.-sec. 3. /'( i/'yi^ff"^ Jnsnrauce Co. v. Watson, 1897, App. Ca.. i. (b) Colquhotmy. Ihddo», 25 Q. Ij. i). i2g. RIGHTS OK rOLICV-IIOLDERS. 423 1 protits or gains," ic App. Cii.s. 4j!5, Where a claim on a policy was sent in with proofs Paymeot and admitted, and a day fixed for payment, but before !"'i^* bonad.. , , . . " , „ "^ before wina;')g tluit day a petition was presented for the winding-up "P. *«> *void of tlie company, upon which aicer several adjouinments prSnce. a winding-up order was seven months subsequently made, Lord Jiomilly held that payment by the com- pany of the claim must be deemed a fraudulent pre- ference within s. 113 of the Companies Act, 1862, and that the money must be refunded (c). In other words, it is not enough that the right to tlie policy-moneys should have accrued. Payment iiiiist be made before any winding-up proceedings ((/). H(jlders of annuities granted by insurance comijanies Annuitants are creditors of the company from tlie day when the '"'" '''■^''•''■oi'** aiiuuity begins to run. The liability of the company amiuif7b<>gi„3 may be limited by its constitution or the terms of the *" '"'"' auiiuity deed ; and whether the annuity is a secured debt or not depends on like considerations. They can Can prove iu uf course prove in tlie liquidation of the company for KS!.''" the value of the annuity (r) which is to be computed. " ' ' : Wiiere a trust fund is set apart by a company to Fund set meet immediate claims on policies, &c., it covers on Iv ^*^*''' ^'''' fi i- 11 11.1, " inimediaty tliose claims and demands which have so matured that chuni«. immediate payment can be demanded and an action at law brought, or other immediate steps taken to obtain payment. An annuity which had matured, but on which no instalments were due within the time limited for immediate payments, will not rank on such fund (/). A man who borrowed from an insurance company Loan by ..ffico ou the security of a policy granted by them and of a ""^ f ''."j'^^' "^ charge on land, on the liquidation of the company was policy ,"Vaiuo held liable to the assi^niees of the debt and securities b^,^;e;'cff'*''"^ — against debt (f) Browne's Ouse, .6 ■-', /. 781 (1S74). [d] Martin's Claim, 14 Eq. 14S. {>•) Hunt's Case, 1 LI. &, M. 79, 7 L. 'i'. N. S. 669, 11 W. K. 22'; I/) Wyatt's Case, Kjilly (Alb. Aib.) 42. Ill H.i'i "^""^ THE LAWS OF INSURANCE. for the amount of the loan, and unable to set off the value of the policy, or w claim indemnity in respect of subsequent depreciation of the policy, the assignees being ready to return all the securities given for th.- debt on receiving payment thereof (g). IS be?ef °^ , ^^^ '^ ^ ^«a" borrows on his policy can he set oil Jfanfn'it iu ^f7^^''^ ^^ereof against the loan in the liquidation liquidatiou of f ^^^^ insurance company (//V But under the present company. Jaw a policy has an ascertainable valu. m liquida- tion (i). ^ Srb^'s^efS .^}' '""' ^\ ^^^^^ '^' policy has been valued in the on bankruptcy winding u]^ of an insolvent insurance company is not hoC?gain«t ^ '^^bt due witliin the mutual credit clause of the security I^;n|;J^^Pt>;y Act, 1 869, s. 37 inmlteved in the Act of policy. ot 1 883, vide s. 38) (/j), and cannot therefore be set oif under the bankruptcy of a policy-holder against a loan made to him on the policy. hZiSy to , ^ ^"f <^ placed on the liability to policy-holders by th.- SsL'rlS f settlenaent does not in any way affect the rights general "^ general creditors, wlio will liave the unlimited liability creditors. of the shareholders, and not be restricted to tiie capital of the company, if the company be not a limited liability (I). Eights of auunitauts aud non- participating policy-holders depend ou tlieir contracts. Trustees or annuitants policy-holders. The rights of annuitants and non-participating policy- holders depend on the presence or absence of limitation or qualification in the a.niuity contracts or policies accepted by them (m). Where annuities are secured, by the guarantee under seal of a life insurance company, to trustees for the {!/) JJourney Case, Eeilly (Alb. Arb.) 44. (h) rarlhysCaae, Reilly (Alb. Arb.) 48. (0 Life Assurance Companies Act, 1870. (a;) Ex parte 7V/Vr, Ro /,r/H/,r«^e/-, 2; W I{ ?,aa 25 T T M q .-.^ Arb"/ ^**^''"' ^'"^"''^^'»»'V"'n!, Jfummel'.^ i.'nse, ,6 8. J. 65. 68 (Alb. 425 )licy-holders by the ay affect the riglit^i KIGIITS OF POLICY-HOLDEHS. annuitants, such trustees are policy-holders within the meaning of sections 2 and 14 of the Life Assurance Companies Act, i8yo(n). In the winding up of an insurance company the Questions important questions for consideration are " arising on winding up. (1) The number of matured claims or contracts on which a present liability exists. (2) The number of immature claims whereon the Hability is still contingent. (3) Whether all claims are payable out of the same funds. (4) If not, whether any claims are secured or come in only with the claims of general creditors. Under the present law in tlie winding up of an insur- Uowci ance company— ( i ) matured claims or policies are valued ''*'"*"^- at tlie amount, including accrued bonus, which was i)ay- able on tliem at maturity; (2) immature claims are valued in accordance with the first schedule to the Life Assurance Companies Act, 1870 ; (3) annuity contracts are valued under the second schedule of the same Act. By the Lite Assurance Companies Act, 1 8;o (0), the Reduction of bourt, m the case ot a company which has been proved ««»t™ct« to be insolvent, may, if it thinks liL reduce the amount "indrn?„p. uf tlie contracts of the company upon sdc'o terms and subject to such conditions as the Court thirdcs just, in place of making a winding-up order (p). aims (n) lie Sovereign Li/, Insurance Co., 42 Ch. 1\ zio r.r L T ^rr- 5M. J. ( h. 811, 38 W. U. 58. sTime. L. K. 702 '^' ^^ ^^5. (") 33 '^ 34 ^ict. c. 61, 8. 22. (/') Ko Briton Mediml, dc, Co., 154 I,. T, 14. le, 16 R, J. 65. 68 (Aib, ( 426 ) Deiimtiou. KS mma zm WMI*' »»-' -»'tm *'« ««« Si ■••a «»«■ i%.«« -* If*""" __ Difference between novation and suretyship. Novation to bo proved. Proof required. CHAPTElt XXir. NOVATIOX AND AMALGAMATION. By novation is meant a tripartite arrangement whereby a debtor or person liable presently or in future, or on a contingency or concurrence of contingencies, is rplAnstd from such debt or liability in consideration of his pro- viding another person who will undertake to satisfy such debt ^r liability («). The creditor, by consenti"]).^ to such arrangement, consents to look only to the new debtor; and the distinction between novation and suretyship is tliat in the former the creditor has norinlit of recourse to his original debtor (b), having accepted the new liability in complete extinction and satisfaction of the old, whereas niretyship the liability of the original or principal deot. continues. The law will not presume novation (c). It is a question of fact, and must be proved accordingly by those who aver it to have taken place (d). In the absence of such proof the new liability, if any, will be taken to be by way of guarantee (<;), and net as a sub- stitute for the old. Although very slight evidence is sufficient in the course of dealing between a customer and alirm, suLject to change by the retirement of old partners and the introduction of new, to show that the customer con- tinuing his Healings accepts the new tirm as his debtor^ (a) I rotliier (Evans'), p. 381, 546. Wilson v. Llom/, i6 Eq. 60. (b) I I'othier (Kvans'), p. 394, s. 56S. (1 3A ^jf 7'"^- "■ V.' ?n 7- J^owrhu/s Case, 16 8. J. 305. ( »-l IV ¥»■• |hi«% ■■«« I '■*%' TfiK LAW8 OF INKUliANCE. ments between insurance companies on occasions when one takes to tlie business of the otiier (y). JHirclinse by one insurance company of the goodwill and the wliole concern of another will, ordiiiurijy speaking, be a transaction in which no insurance coui- pany will be justified in enga.;! mjv, because it certainly cannot be said to be within tlie ordinary scope of the objects of any company to purcha-e the goodwill ui another (A). Such a transaction nuiy, however, be expressly authorized under the deed of settlement or other instrument constituting the company, but the purchase must be carried out according to tlie provi- sions thereof (i). l*ower to enter into a contract of amalgamation is most clearly no part of the general pow i i which the law would imply in directors of an insurance com- pany (k). The power to insure lives and the power to grant annuities on lives committed to the directors of an insurance company, implying as it does skill and care on their part in selecting lives, could not be ex- tended to authorize the taking over in mass by thu executive of one insurance company df all the insured lives and all the annuity contracts of another company selected and entered into, not by the executive of the first company, but of the other (k). In order, there- fore, to maintain a contract of amalgamation, or any rights of indemnity arising therefrom, the power to amalgamate must be shown and strictly pursued. General principles of law, which would show that, iu the ordinary details of business in obtaining necessaries and entering into contracts for them, the directors would have power to bind their shareholders, whether df) Indcmuitij Case, lleilly (Alb. Arb.) 17, (A) J-Jmest V. Nichols, 6 H. I.e. 401, 414. He Km Lmmiacc Co., 30 K J. Ch. 137. 3 ^'- T. N. S. 314, 6 Jur. N. S. 1334, 9 W. J{. 67 (1861). (0 /^rne.^t v. Nichols, 6 H. L. ( '. 401. I((, Sorerehni Lite, az Cli. IJ. 540, 61 L. T. 455, 58 J.. J. Ch. 811. 38 AV. J{. 58. (/.■) Indcmnitij Case, l.'eilly (Alb. Aib.) 25. NOVATION AND AMAL(;AMAT[0!<. tiieir shareholders had or had not stipidated for parti- cular Ihnits of liability in thu deed, cannot be appealed to ill order to support an amalgamation or an under- taking; to indemnify as part of a contract of amalgama- tion ( ) 429 ha-e the goodwill ui Huf an amalgamation wiiich is at its outset 7//<7"« Amaigumatio.- r/V'w may be ratified and accepted by the shareholders oin'b.''"''' with or without (luaMication ; and Lord Cairns, as ''"''"eii. arbitrator, held that the Albert Society, in sanctioning an amalgainatio, eilected by its direction, did not accept certain vUra vires terms in the amalgamation deed which purported to impose on them an unlimited liability in respect of t' « debts of the amalgamated companies {tit). When the original deeds constituting the companv Where power do not give the pow^r to amalgamate, such power may LotTven hf' he given .y general resolution, 'mt not so as to alter J®«^'/* ™»>' the fundamental principle of the original deed as to resohiK'"'' the individual liability of shareholders (»). Therefore an amalgamation purporting to do more will be void (0), though an amalgamation not altering the nature of such liability will be valid (p). So no amalgamation could be intra virrs which, in the face of a clause in the uiiginal constitution of the company, requiring that in every contract there shall be inserted a limitation of liability, purports to bring upon the company a liability not so limited (^). But Lord liomilly held that where amalgamation was il) ("0 (») (0) ip) ('/> 1 0. V W. B 170. Indemnity Case, lleil'j (Alb. Arb.) 25. ' Ihid., 28. lJ>id., 29. Albert Co. v. Bunk of London Co., same case. Albert Co. V. Medical, p. 28, same lase. fndemmti/ Ca.se {A'o. 2), lieilly (Eur. Al•b.^ ^. Anfjlo-Afstraliun . hntmh^ Pronncial Co., 3 Gift'. 521, 6 L. T. N. S. 68, 517, 10 . 588. Ex parte >Sinith, Re Aiit/lo-Anstralian Life Co., 8 W. If. Ex parte Auf/lo-Australiun Co.', lie British I'rovi'dent Co., 10 L t" 326, 12 W. Iv. 701. IMAGE EVALUATION TEST TARGET (MT-3) *^c «' mi.. ng company, pany as if l.e had originally obtained policies or ann I ties from : uat company (s). And when the policy-holders and annuitants will not look to the amalgamating company, the amalgamated companies can under the deed of amalgamation an indemnity only claim on the assets of the other with fe'Llr ■' "' '" '''" "°"'^' the indemnity will Claim by amalgamated on amclgama- ing company when policy- holders will not look to amalgamating company. Costs of liquidation of amalgamated company through default of amalgamating company. The costs of liquidating the amalgamated companies m consequence of the default of the amalgamating con panics will be treated like the costs of a surety I resists the creditor's claim when the principal debt ails to pay it, and they must show very strong reasons or resisting before they can be entitled to such^costs ^. n the indemnity includes costs when ascertained and piwed to result from breach of the covenant to indem- ^l^^^. '''''-' °^ ''- --^-^ P--^«^"^" ZiaZCnl- l^f cy-holders can only be made to consent to a tet^ ^ "^ f'Z^'l '^ ^If liability on their policies-(i) when powe of office. ,*^^ fff^ct such transfer is expressly given by the consti- aition of the company granting the policies, and (2) if the provisions regulating the mode of such transfer have been strictly complied with. But to avoid risk of novation by acquiescence it is advisable to signify dissent or protest (.), and where either is effectual, by fZl (/•) lie British Prorldmt Co., i8 S. J. 242 (Eur Arb ) (u) Imlemnitu Case {\o. 2), lieiily (Eur. Arb ) 7 {^} Wood's dose, mWy (Alb. A.b.) 54, 15 S J^693. JRANCE. tiifj made thereon was tant of one insurance of his company with m on sucli other com- ned policies or anniii- 1 annuitants will not ly, the amalgamated f amalgamation and iS of the other with s, the indemnity will Igamated companies i amalgamating cora- 5ts of a surety who lie principal debtor very strong reasons led to such costs (t). len ascertained and covenant to indem- company promising e to consent to a es — (i) when power fiven by the consti- policies, and (2) if ' such transfer have to avoid risk of >le to signify dissent effectual, by formal xVOVATION AND AM. GAMATION. 431 f2 (Eur. Arb.). 3. 16 S.J. 141. Arb.) 3. 5 S. J. 693. protest (.y) to pay premiums and do other acts needful Fon m protest to keep alive the claim with reference to such protest *^''«'"'''«- Unless such protest be absolute, or declared to be in force until certain acts are done, or information is given by the person to whom it is addressed, difficulties^may still arise, and subsequent acquiescence be alleged with some show of reason (z). Where persons having claims by way of policy or an- Novation nuity, deed, endowments, or otherwise, allow themselves ^'•'^ corns' to drift into dealings and enter into relations with the '''^'^' new company, and to pay premiums, &c., and make no protest with regard to the footing upon which they are paying these premiums, &c., they lose the security of the old company and become creditors to the new (a). Where a company transfers its business to another Amalgamation in consideration of a covenant by the transferee com ^'^'^""tpoJ'cy- pany to indemnify the transferor against all claims on ^"^3 policies, annuities, and other contracts, holders ofcomptT annuity contracts with the transferor company who were also shareholders, by exchanging those shares for an equivalent number in the transferee company do not preclude themselves from looking to the trans- leror company for the payment of their annuities (i). By assenting to the exchange they do no more than agree that the paid and unpaid portion of the transferee company's capital, including their own por- tion thereof, shall be available to indemnify the old com- pany in respect of the old debts. They do not merge or extinguish their own claims against the old com- pany (r). If 9; P'lp: {z) Dornuin's CW, Keilly (Alb. Arb.) 144. Griffith's Case 6 Ch App. 374, 40 L J Ch. 464. 24 L. T. N. i 4sl ,9 Vii l^',"^''' ^ ^''• a Borning\, Case, Reilly (Alb. Arb.) at 148. ^ • i) Frcre's Case, KeiUy (Alb. Arb.) 211. ^lO^gwTleT'' ^ ^^' ^'^^' ^^^' ^^ ^' ^- ^^- "^5°' 23 L. T. N. S. ll I 432 THE LAV/.S OF INSURANCE. ::::« $> ail '3» 'S!'- '«MI :ate MK 5:» uMa* MM. liability ol partners coQtinues, unless specially discharged. fiiglits of creditors, &c., of transferor compaDy preserved. SpaV Y f ^"''''" ^''^'^' '^'^'^^ ^" a" insurance conn.am w;St7ot*"'r"^ then that company is dissolved, or its busine;,; ^"^^"^^^^^^^ <=o or amalgamated with that of another suci, company unless the dissolution, transfer, or amalgama- tion mvolves a discharge to the creditors of the dissolv ing, ^c company, which binds them, the liability of tl.e shareholders continues. Unless they accede to the trans- fer however conformable it may be to the constitution of the companies engaged in it, they are not bound But If they accept the indemnity of the new company' the old liability ceases (d). ' ' When one company transfers to another its business the transferee company promises by the deed of transfer indemnity to the transferor against all claims of policy- holders or creditors with vested or contingent rioh . against the transferor. This of itself does not in an^ way debar such creditors from suing the transferor,; , It the transferees continue solvent, the transferor can have recourse to them, by claim over. Most of the cases on this point have arisen where creditors of the trans- ferors have found the transferees insolvent. indSyl^t ^^^^"•?"<^« to indemnify, made by insurance eon. uuiimitod. panics with each other on almalgamation and transfer of business, are not unlimited in ^heir scope. They do no more than affect and bind the paid and unpaid capital of the indemnifying company. And the assmt of a shareholder to an indemnity covenant amounts to nothing more (c). An insurance company agreed to amalgamate witli a second company, and a deed in two parts embodyino the terms of amalgamation was drawn up and execute! but subsequently declared void for a variation between the terms cf the two parts (/). A shareholder in the Position of shareholder. (d) /Mucey's Case, Reilly (Eur. Arb.) 18, per Lord Westburv (J) Wynnes Case, 28 X. T. N. S. 805, 21 W. IJ. 895. 433 NOVATION AND AMALGAMATION. first company applied for shares in the second, and received a letter of allotment, but no certificate of shares As he did not accept the allotment, it was held that he could not be called upon to contribute in the winding up ot the second company, but must be treated as an applicant for shares which never had been allotted the insertion of his name on the register being neither autlionzed nor ratified by him (ff). The amalgamation voidan>ai being void, there was no consideration for taking shares g"^-'"- in tlie second company, since that company could not give him 3liares on which he was to be credited with the value of his old shares, and as a fact no agreement to take the second company's shares was proved (h). Life insurance companies cannot now amalgamate orNoamaiga- transfer their business without the assent of the Hiah J?^'«J? °f Court of Justice, to be obtained by petition in the ^^th'^o^t" Chancery Division (i) consent of ^ ■^* High Court. It is quite lawful (7.) to make it a term of the original contract of insurance that the holder thereof shall be obliged to accept any subsequently substituted liabilitv created by a.y intra vires transfer or amalgamation. Ihis may be done by express and apt words in the pclicv or by declaring the policy to incorporate and be subject win in'nrcf.pt' ^ '' '^^ ''"^^^^y (^>' b-^ ^- ^* ^^ -* will in no case be implied by law (m). ^ implied. Where the terms of the amalgamation purport toiftheama,- Keep the two companies separate, no question of nova- ^""""^^^ tion can arise, and holders of contracts with the absorbed ^edT/ *" separate, It may be stipulated that policy-holder shall accept liability of transferee company. ig) Beck's Case, 9 Ch. App. 102, a-s L J Ch cj o« t rp m c. 22 W. R. 348, 460. ^ ^^ °- 531. 29 L. T. N. S. 907, (Ji) Same case. (/;> 33 & 34 Vict. c. 61, ss. 14, 15. W I'ollock on Contracts, 190. Doivse's Case 1 Ch v> .c ^ i t traS, P:T90^"'' ^''''' ^^ ^'4- «=«--^ix., discussed in Pollock on Con- (m) Lancen's Case, Reilly (Eur. Arb.) i8. 2E .: ^1 434 THE LAWS OF LXSUItANCE. fl novation does not occur. 1 I i i \ I i M I ••'•* Mil Amalgamation ultra vires. EesuBoitation for winding up, Shareholders of transferor company seek release from their policy- holders. Policy-holders seak to preserve their original rights. Decisions fi{ arbitrators not company continue to be creditors of that company alone (n). '■ •' One object of proving novation is to enable the old debt-or to resist any recourse to him for payment of the debt. An insurance company which has transferred Its business idtra vires, or to a company which had not the power to take it over, or which, the transfer beinr. intra vires on both sides, cannot by its constitution or the terms of its policies, or both, compel the contract- holders to look to the new company, is not entitled to dissolve, and may be resuscitated for purposes of windin<> up when its contract debts fall due, unless it can prove that the contract-holders had full knowledge or sufficient notice of the arrangement (o) between the transferor and the transferee companies, and assented thereto in such a manner as to agree to look to the transferee company only for satisfaction (p) of the policy or other insurance contract when its amount became payable. It is consequently of equal importance for the share- holders of a transferring company to induce the policy- holders to release them and accept the transferee, where the policy-holders have the option of refusal, and for the latter in such a case to avoid novation and seek to preserve recourse against the original grantors of the policies. Whether novation has or has not been made, being, as already said, a question not of law or pre- sumption, but of fact, in the very complicated circum- stances attending the amalgamation already alluded to, it is not surprising that the views of the Court of Chancery and Lords Cairns, Westbury, and Romilly, sitting as arbitrators in the winding up of the Albert and European Companies, are not wholly consistent (q). The decisions of the learned arbitrators, although en- wf'R.^Jsf'^^''"* ^'^" ^''" ^^'^P*'"'^ Jiadenoch, 5 Ch. App. 632, 18 (o) ConoLc^t'sCase, i Ch. D. 334, 45 L. J. Ch. 336, 33 L. T. N. S. 762. Giffald 1.J ' ^' ^""'''' ^'""'^^'"'^ Cb.,'4 Ch. App. 662/pe; (q) J.indley on Partnership 463. )rs of that company NOVATION AXD AMALGAMATION. c7i, 5 Ch. App. 632, 18 435 titled to the greatest respect, are not precedents binding absolutely on the UourtS. binding. Payment to the transferee company of premiums Payn^ent of necessary tor the maintenance of the policy or other P'"«'n»"°is not similar security isnot sufficient to constitute novation (r). novS."' The act, bemg ambiguous, is not sufficient to raise a presumption against the policy-holders, who in cases of transfer can only pay at the transferee's office, and payment may be made them either as agents for the grantors of the contract or as principals. declaring that Formal protest in writing, declaring that future Payment premiums would be paid only subject to and on the ^nl"" p^ '°'' foot of that protest, and to prevent any question of ^ovaK""* lapse, is sufficient to negative novation (s). A receipt from a company other than the original insurers may be explained by payment either as accept- ing the new company as future insurers, or as agents of tlie original company (t), and, being ambiguous, will not prove novation. If the holder of the receipt knew nothing cf amalga- Payment in mation, lie cannot be held to have assented to it {u\ Jgnorancr, of V /• change. And if the premium be paid to the transferee com- Without pany by the bankers of the contract-holder's widow •"'*^°"*y- without the executor's authority, there is no nova- tion (x). So if the contract-holder cannot read, and does not otherwise learn of the amalgamation, he will not be held to have accepted the liability of the amal- gamating company (?/). But acceptance of abonus from the transferee company Acceptance of bonus ^^^e, Ktilly (Alb. Arb.) 144. How's Executors' Case, EeiUy (Alb. Arb.) it) Whitehaven Ban?, Case, ReiUy (Alb. Arb.) 62. « Pome7-'s Case, Reilly (Alb. Arb.) 212. U y,;vrfs Executors' Case, Reilly (Alb. Arb.) 236. [y] Ckgg s Case, Reilly (Alb. Aib.) 266. II (. ! V. J** "a 436 evidence of novation. Proof against transferee company. Indorsement of policy by transferee company. Acceptance of their voucher. Verbal protest not sufficient to prevent. t Wliere policy- holder is shareholder or party to deed of transfer. Novation by mortgagor binds isaortgagee. THE LAWS OF INSURANCE. is evidence of an intention to accept its liability in lien of the liability of the transferor company (z). So will the carrying in of a claim against the transferee com- pany, whether before (a) or in the winding up, be evi- dence of novation (b). Novation also takes place when the transferee com- pany indorses the original policy with an acceptance of liability conditionally upon payment of premiums to It (c), and generally when a policy-holder has sent in his policy to be indorsed by the transferees, or to be exchanged for one of theirs (d), or accepts any voucher declaring their liability (e), novation is clear. Verbal protests by a policy-holder to an agent of his company will not suffice to prevent novation in the face of other acts evidencing it (/). But complete pro- tection if desired may be obtained by formal written protest and payment of premiums subject thereto. A good instance of such protest is Wood's Case ([/). Where a policy-holder is also a member or share- holder in the company whose business is transferred and a party to the deed of transfer, novation will be held to have taken place as to his policy (h). Where a policy is mortgaged, novation by the inort- will bind the mortgagee (^). So also in the gagor (s) Ex parte Nunneley, Re Times Life and Guarantee Co., ^o L J Ch. 527, 5 Oh App. 381, 18 W. R. 559. Spencer'^ Case, 6 Ch App.' 362, 40 L. J. Ch. 455 24 L. T. N. S. 455, 19 W. R. 491. ^^ J_a) Evens Clam, 16 Lq. 354. Knox's Case. Reilly (Alb. Arb.) 132. Allen's Case, Ruilly (Alb. Arb.) 127, ^ (b) Re National Provident Life Co.. 9 Eq. 306. Re International and Hercules Co .Ex parte Blood, 9 Eq. 316, 39 L. J. Ch. 295, 22 L. T. ss. S. 467, 18 W. R. 370. (c) Re European Co., Miller's Case, 3 Ch. App 391 {(l) Griffith's Case, 6 Ch. App. 374, 40 L. J. Ch. 464, 24 L. T. N. S. 458, 19 w: R. 495. 1 1. t (e) Hawtreifs Case, Reilly (Alb. Arb.) 138, 16 S. J 713 (/) Mivaz's Case, HeiUy {A\h. Arh.) 104. ffoiocU's Case, nd\]y{A\h. / V ,V?,', .kJ- ^V\ ^«'''««« Life Co. Case, Reilly (Alb. Arb.) 189. (g) Reilly (Alb. Arb.) 54. j ^ / y (A) Ex parte Step/iens, 9 Eq. 694, 22 L. T. N. S. 264, 18 W. R. 725. I'lemmg s Case, 6 Ch. App. 393, 39 L. J. Ch. 250, 23 L. T. N. S. 770, ^9 W. R. 663. Harmon's Case, i Ch. D. 326, 45 L. J Ch. 336, 33 L. T. {i) Werninck's Case, Reilly (Alb. Arb.) loi. 'h. 464, 24 L. T. N. S. NOVATION AND AMALGAMATION. case of a settled policy, if the settlor accepts the liability of the transferees, the trustees cannot claim against the transferors {k). The holder of an annuity contract which has not matured is in just the same position as a policy-holder. But wlien the annuity has become due, receipt of the instalments thereof without demur from a company other than the grantors will not amount to novation (/), since accepting from B. payment of a debt due by A. is no evidence that the recipient considers B. his debtor (m). In certain cases, however, the annuitant cannot resist novation. Thus, where the deed of settlement of the grantor company provides tliat its funds and property only shall be liable for claims on the company, and they are transferred, his claim follows them into the new hands (n). And if the annuitant accepts an indorsement on his contract by the transferee company, this would seem to amount to novation (0). The effect of successive amalgamations, if agreed to by the creditor, would be to transfer his claims on the assets of the original company to the assets of the last amalgamating company, including all that it had received from the different companies amalgamated. Thus if an annuity contract was entered into with the St. George Company, which amalgamated with the Metropolitan Counties in 1861, which in 1862 amalga- mated with the Western, whicli in 1865 amalgamat'ed with the Albert, the claim of the annuitant would be transferred from the St. George Company to the assets of the Albert Company, as well original as those derived from amalgamation (2)). 437 By settlor, binds trustees. Kocoipt of annuity not sufficient. Otherwise where deed of settlement provides that only funds of company liable. Indorsement. Effect of successive smalga- niatious. (/.) Andrew's Case, Keiiiy (Alb. Arb.) 107. 18? i8'\f "r''"66 ^''''"''^"'* ^'^''' 9 ^l- 306. Fott's Case, 5 Ch. App. ('«) He /ndia and London Life Co., 7 Ch App 651 N.? 6?'"'"''* ^'"*' (liuropean), 3 Ch. D. 3S4, 46 L. J. Ch. 402, 35 L. T. (0) Dak's Case, Reilly (Alb. Arb.) ii. See PoWs Case, supra. \in Dale s Case, supra. ( 438 ) Domicile of compaoy. Foreign insurance companies can trade here freely. Eights of foreign com- panies. CHAPTEK XXIII. FOREIGN COMPANY. The domicile of an insurance company may be of great importance to those who deal with it • for it IS very common for companies constituted within and under the lavs of one jurisdiction to carry on business in another. Thus Scotch Companies do a large business n England, and English companies appear in suits before the Courts of the United (States and in every colony in the empire, and the colonial companies very often rade in other colonies. And usually, as a check on their agents, such companies refuse to allow any a-ents other than directors to grant policies (a). And^lso they have much if not most of their assets in some otiier jurisdiction. The domicile of an insurance company is where its chief registered office is situate {h). No special terms are in this country laid upon toreign insurance companies which are not also laid on English companies (c). Existing foreign companies need not register under the Companies Acts, whether estab- lished before or after 18^2, nor must they be incorpo- rated according to the laws of their own country (d). Companies formed outside the United Kingdom may (a) Kelly v. London and StaffordMre i V»h *• vn;„ .» t AusSaI^No 377° fiS;!' '""'^ "'''^"' '''»«J-iHdiction:Lth (6) Jones v. Scottish Accident Co., 17 Q. B I> 421 (c) Life Assurance Companies Act, 1870 (33 & 34 Vict c 61I ^==*««-i 439 XIII. mv. company may be of deal witli it ; for it )nstituted within and to carry on business ies do a large business appear in suits before and in every colony companies very often mally, as a check on 3 to allow any agents licies (a). And also ' assets in some other ompany is where its • country laid upon are not also laid on eign companies need Lots, whether estab- ist they be incorpo- own country (d). lited Kingdom may ab. & Ellis 47. In tome breed foreign companies the jurisdiction : South l\ 421. & 34 Vict. c. 61). L. J. P. C. 41, 44 L. T. FOREIGN CUMPANY. trade in-espectively of any convention. They cannot register under the Companies Act, 1862, without dis- solution and re-formation. So their coming to trade in Kngland will not alter the liability of the members of the company in any way (e). By virtue of special conventions, I'rench, Oerman, Belgian, or Italian insurance companies, legally consti- tuted under the laws of their respective countries, may freely exercise all their rights under such constitution in this country, including the right of appearing before the Courts as plaintiffs or defendants (/), so far as such constitution complies with the laws and customs of this country, i.e., that they are found to comply with the conditions prescribed by the laws of this country ((/). It does not matter whether the companies were formed before or after the making of the convention ( brought on a policy in a State other than tliat where the contract is made or to be performed, the lex fori governs the remedies for enforcing the contract, but not its con- struction or the legal rights arising under it. These depend usually on the laws of the place where the con- tract is to be performed, although, where there is any- thing in the circumstances to show that parties had specially in view the law of the place where the con- tract IS made, this law will govern though the contract IS to be performed elsewhere " (/.•). A life policy, applied for and delivered in Washin.^. ton, but under which the premiums, and insurance when due, are to be paid in New York, where proof of death is also to be made, is governed by the law of New York (/). Where the contract is foreign, by the test aiveu above it will be, unless otherwise provided, governed by the law of the foreign country in which it is made. But this will not wholly oust the jurisdiction of the Courts of the assured's domicile (m), and, if the insurers have an office within that domicile for the receipt of premiums, service on their agent there will, it seems, be permissible (n). (i) Berry v Knightn Templars and Masons Life, 46 Fed Een 4^0 Marine Ins. Coy.^St. Louis, dr., 41 Fed. Rep. 643 ^ ' ^'^^ (h) liusev. Mutual Benefit Co.. 23 N Y 1:16 (I) Fhinney v. Mutual life, dr., 67 Fed. fiep. 493. 7 (i^lfT ^- '^"'^i E^fanye, 8 C. S. C. (2nd series) 365. Crawford & Dix (Ir. [/RANGE. tlieroiii, the company 3, but its policies will by the holder iu the had baen duly quali- ntract with a foreign 3 : — " Wheu a suit is iv than that where the J, the lecc fori governs tract, but not its con- ng under it. These place where the con- , where there is any- low that parties jiad place where the con- though the contract elivered in Washing- O urns, and insurance York, where proof of rned by the law of , by the test given I provided, governed in which it is made. 3 jurisdiction of the , and, if the insurers e for the receipt of there will, it seems, FOREION COMPANY. . ^ , 44 i Where an assignment was made abroad of an English life policy.and the assignor and assignee were domiciled abroad, the vahdity of the assignment was determined by the law of the place where the assignment was nia(l(! (o). When a policy is granted by a foreign company Policy of carrymg on busniess within the realm, the contract J'^'^'«^„ j^, will be held to be made at the head office abroad of buZew hore.* sucli company if the consent to issue it must be and is there given (;.), and it may be sued on there. Conse- quently, where a person with English domicile takes out a policy from such a company, it would seem that payment of the amount thereof under judgment in the domestic forum of the company to the "adminis- trator within such forum of the assured, would be a bar to any suit for the recovery of the amount of the policy m the domicile of the insured {(j). Where the policy is foreign, and no provisions are Foreign made therein as to the place of payment, &c., demand ''r''"*°* ^'*"' must be made at the head office abroad before the ° ^^ company can be considered in default (r), since the hms contractus is loms solutionis unless expressly otherwise provided (s). But in case of insolvency, the creditor on a policy would be entitled to rank in his own forum against any funds deposited within its jurisdiction (t), and generally having got judgment on his policy here or abroad, in accordance with the law governing it, would be entitled to rank as a 1 Life, 46 Fed. Rep. 439. !>• 643- 6. 'P- 493- (2nd series) 365. )., I Crawford & Dix (Ir. l}f}k7-A''\'h^- V,- **• 3°9. 34 W. i! 653; see also Ahaual r\,: ^ 4"*"' 52 Am. Rep. 247, 138 Masi: 24. ip) lujuUableLi/eCo. of the U.S. v. Perraalt, 26 Lr. Can Jur 182 Parkeu v. Boyal Exchcuur (1846), 8 C. S. C. (zndseries) at ,72 iS" pathy. Sun Mutual Co., 14 Lr Can. Jur. 90. Vo,, Snv^(V,nfl,Vt nf Laws,!,, by Guthrie (2nd ed.), ,56, 215, 265, and not^s ^^' ^ ^''*°^ (r) Jbid. W JMceny. Itoyal Exchamje, 8 C. S. C. (2nd series) 365-37?. i) Orr Ewing V. Orr Ewlnr/, 21 Sc. L. 1{. 423, 11 C S C f^th series, 600. Equitable Life Co.y. Perrmdt, ubistpm ^^ 442 THE LAWS OF INSURANCE. m 5^^ a*,.-.. »-%li «cs^ miSt H"" : ••- :z. eys «)txs ,-• ^ Sr^ ^ '••••:i t*«.zs '' r«k«l l"^«. ■ E!!*" ■ i'^ .s .. ■ S^)^ Ml P &3C^ •»••« :^ Condition makiug it English. Provision for poL'ei(iG in different juris dictions, ' secured or unsecured creditor (according to the terms of his policy) on the assets of the company here(«^). If the assured wants a contract with a foreign com- pany to be governed by the law of his own country, lie should have a provision to that effect inserted in 'the pohcy, which will be effectual to oust .he lex loci con- ■ trachis (a-). If he thinks the foreign law more favour- ^ able to him, he can contract accordingly. In dealing with foreign companies, it is necessary, in order to avoid sucli an inconvenience, to see thattlie policy contains a provision that payment on it shall be made in the domicile of the assured, since in a f oreion contract the locus solutionis is foreign too unless othe^r- wise stipulated (y). Perhaps the best example of the mode in which the . insurance companies can make provision for policies in different jurisdictions is to be found in the special Act of the Scottish Widows' Fund, a company domicUed in Scotland, wherein it is provided that every policy effected with any person described as of any place in Enoland or Ireland shall be deemed a policy effected witli a company having its head office in London or Dublin respectively, even thovigli it should appear on the face of the pohcy that it v/as not in fact effected in En-land or Ireland (.). S. 56 of the same Act contaL'' a further provision to the same end, that assignments and discharge of policies of the societv executed outside the United Kingdom shall be valid and effectual if made and executed according to the usual mode of making and executing such documents in the United Xmgdom, or in the place where tlie same shall have been made and executed. ^^M) Thnrburn v. Steward, L. R. 3 P. C. 47S, 40 L. .• P. ( '. 5, 19 w. K. (x) liohimon v. Bland, 2 Burr. 107- Loff cS:^n " ''^-" ''"^''«"^^' ^ ^- «• '- (-^ -"-) 365-375. pe." ^^ W The Scoitisb Widows- Fund Act, 1882 (45 & 46 Vict. c. i.xv.), FOREIGN COxMPANY. 443 dL..- p. <'.5,i9\\'. I!, The statutory requirement that every life insurance Wasto company should deposit ;C20,ooo with the Accountant- ^i-" General appHes equally to all companies, British or '"'^''^°'""^- foreign; but as there is no provision insisting that companies not domiciled within the jurisdiction should keep the fund deposited after they have satisfied the test by the Act provided, the assured has no guarantee that a fund will remain in this country to satisfy his claims (a) In the case of large foreign companies it seems to be the praccice to lodge assets with trustees within this country to answer claims there arising This procedure provides funds upon which judgment may be executed within the domicile of the assur^ed or oil which he may rank as a creditor, but does not ob- viate the necessity of the provisions already mentioned as to the law which is to govern the construction of the contracted). It may, however, be observed that insurance law varies little throughout those countries where insur- ance is practised. In Scotland jurisdiction on a foreign policy can be Scotch law. with certainty created if doubt arises by arrestment of funds of the foreign insurer within the jurisdiction (c) An English company dealing in Scotland by an agent not allowed to do more than give interim receipts must, It seems, be sued in England (d). So also when the company was English, and a conditional policy was granted m Australia (e) ; and in another case suit was brought in England on a policy granted by an Enolish company on property in Minnesota (/). If the insurer's agents in the country of the assured Test when nave power to effect a complete contract there without '°''*r* ^^ reference for consent to the foreign head office the '"^Sn' If («) 33 i^ 34 Vict. c. 6i, s. 3. W Ex parte Zierer, 18 Q. B. 1). 660. rl u!:T ''• f'-^"^ ^^■'^h'^nge, 8 C. S. C. (2nd series) 365. '/) MacJie V. European Co., 21 L. T. N. S. 10-' 17 W i\ 0X7 (e)l{os.,ter v. Trntalgor Life, 2; B.,y 377 ' ^ ' ^^^ ^^7- i/j Kdly V. London and Stuffanhhirc Co., i Cababe & Ellis 47. 444 THE LAWS OF INSURANCE. contract will nol be foreign (^), ai.d will be valid where made, even f hough forbidden hy a monopoly within the domestic forum (h) of the insurers. SrSact . 7^^^'^ ^^^ ^°°^P^"y ^°d the contract are both foreign and company judgment may be obtained in the locus contractus, and then proceeded on in the English courts (i), and a wmdmg-up order may be obtained against a registered company even though the persons, property, manaoe- ment, and directorship be abroad, provided that it is a company which at the outset contemplates some de- scription of business in this country, even although in substance all its operations may be abroad (k). ° It has been laid down by the Irish Courts that a company which holds an office in a foreign country for the receipt of premiums, where the entire contract , IS made and where the office is still open for future contracts, does by such contract enter into an engac^e- ment that for all purposes of suit their office shatrbe deemed their dwelling-house (/). Formal completion of the contract at the head office will not make any difference, as the holding open office is an undertaking that the office is to be deemed their residence, not only tor receipt of premiums, but also for enforcing the con- tract (m). But as before mentioned an action has been brought in England on a policy granted by an English ig) Albion Inmrance v. Mills, % Wilson & Shnw /. (. (I) Which can now be done under It. S. C. i88^, Ord iii r 6 m,! w'n'lsg '^""^^•^««''»'' 53 L. J. Q. B. 68, 49 L.¥n. k 64S,t (I) Moloney (Exor.) v. Tulloch, i Jones (Ir. Ex.) 114 (ig.t) Rellu V. London and Staffordshire, i c'ababe & Ellfs 47^ ^ ^^^^' " ^J^n) bame case. And «ee imh v. JieynoldV/^ Ir. Law l?ec. N. S. fRANCE. id will be valid where monopoly within the 3. tract are both foreign locus contractus, and h courts (i), and a I against a registered s, property, manage- provided that it is a (templates some de- ry, even although in 5 abroad {k). Irish Courts that a 1 a foreign country ! the entire contract till open for future iter into an engage- their office shall be Formal completion will not make any B is an undertaking • residence, not only ' enforcing the con- an action has been nted by an English 6 Shaw (So.) 2i8, 233, V. Brehner, 8 C. S. ('. 1883, Ord. iii. r. 6, and 49 L. T. N. S. 645, 32 iteman v. Service, 6 App. 5. I'rlncess oflieim v. -i. T. N. S. 641, reporteil .363,221/1. N. S. 454, Ex.) 114 (1835). A'f% 47. n, 3 Ir. Law l?ec. N. S. FOREIGN COMPANY. .^^ 445 company (through a broker) in Minnesota (n), and in New York State on a policy there granted on property in Canada (0), ^ v j Jt'T''i""7'u" ^'' ^''^ '"°^'^ ^^ ^" ^g^^t '"^ Serviceof writ UuDim ot an English company who had received some of "'^ ^^^v^^y- the premiums for them, the company refusing to appear in Ireland and requiring suit in England (p). But under Eules of Court (q) a policy effected in England with a Scotch or Irish company cannot be sued on here unless the contract is made at the company's office here • for there is no power to allow service of a writ out of the jurisdiction in actions for breach of contract under Ord XI. r. I (e), where the defendant is domiciled in Scotland or Ireland (r). When a company with head office in England was sued in Ireland and served in England in accordance with the Irish practice, and failed to appear, the validity of a judgment by default in Ireland was held not to be affected by proof in English courts that the service was invalid (.). The Court will allow proceeding on the foreign judgment under Ord. xiv. of the Eules of judgment the Supreme Court, 1883 (0- Judgments obtained by or against insurance com- panies in one part of the United Kingdom are enforce- able in any other part of the kingdom in conformity Nvith the provisions of the Judgment Extensions Act, 1880 (u). Cababe & Ellis 47. (»0 Julli/ V. London and Staffordshire Fire lycomimj Co. v. Ward, 90 111. efc (?) ^tSt!'^''y'\ ^, /'-r^"^'. 26 Lr. Can. J„r. 382. (I 'Cif K pTir ^Kifr ''T'^'f^.- <'«38), I Crawford & Dix & Ellir74 '^■^ ^ ""'^ 'SY«^b«/sA».e Fire, 1 Cababe (?) R-^. C. 1883, Ord. xi. r. I (e). ('•) Lenders v. Anderson, 12 Q. B. D. en 5^ L T O R t„. t rr 68, 49 L. T. N. S. 64'.^32 W R "± ''' ^"''°''' " ^- J' Q- B. («) 31 & 32 Vict. c. 54. ■ " ' ~^^' ( 446 ) CHAPTER XXIV. AGENTS. neSrytoaii ^^'^ insurance partnerships or corporations must hv companies. their very nature, act through a..ents (a) 7ut\j powers of those agents vary e^onsid^rlbly ^\,f J ^ the managers or directors or governing body of I insurance corporation aie binding on the cornorl" I^etZ T' f ^°-- ^^ ^^etr;iS: dec aied by the instrument constituting it or the Cgiiibrdr'^^""^^^'^^^""^^^^^ ' But such companies have also many suhnrrlin.f a,g.,ts w„„.e powers are variously liSd t T wh e they cannot any more than the managing ho7; b nd the corporation by an infringement of the ^rttts o .ts consfatntion, are atill further disqualified fc 1 any acts by the limitations of the authority IZ them by the managing hody (J). ' ° S°re™r.';'*c., , ^'"f ^ dealing with insurance companies will 1,. Cr^'""' ^''"^^ '» >'«ve notice of the powers of thekl't^ whatever the mode in which the company is constSd far as the constitution of the company deCt«i .m.ts the same. But merely directory p™vlio» herein, wh.ch are only for the guidance of fhe™ .6?' fSi;i^^!^^^J';'^^'^^>>. '3 Moo,. P. C. 8, , ,,„. (b) liojial British Bank v. Turauaml fi P je tj 317 (Ex. C'li.). • ^^nuand, 6 E. & B. 327, 25 L. J. Q. B. (c) Ajiar V. AtJienceum (iS^iS) lORNra.. ^^ W. 11 277. mnce of HkS7i^r.W ^z P^V (? l^" '^^ ^^ ^^ ^^' • *-^"""', ji -Li. I. u. y. 149. 6AV AGENTS. 447 IV. •rporations must, by ?ents {a). But the ■erably. The acts of ^evning body of an on the corporation. '' the corporation as tituting it, or the ents accorded to the many subordinate limited, and who, ;he managing body nent of the articles ' disqualified from authority given to companies will be of their managers, )any is constituted, (ipany defines and rectory provisions ance of the direc- ct, persons dealinsr [core p. C. S-j, 8 ^\. \\. ■ B. 327, 25 L. J. Q. B. 725, 27 L. J. C. P. Q?, ^- T. 0. S. 149. ■ ■ And it is good law that "the powers of a general Authonty of agent are pnind facie co-extensive with the business ^""^'•"^ »&«"* entrusted to his care, and will not be narrowed by hmitations not communicated to the person with whom he deals" {d), except on some such ground as the notice which persons dealing with a company must be taken to have of such powers, where they are con- ferred by statute, or other instrument constitutino- the company. '' General agency does not give an authority to insure General agent or impose any duty to do so {e). It is not v^thin T* "'"'^""''"^ the ordinary duty of an insurance agent to undertake P°>^r'' to grant a policy, and such an undertaking will not ■ bind the company unless the agent was specially authorized (/). r j ^ Bnt where a company issues a policy in pursuance Company 01 a contract made by one assuming to be its agent it is ■^'^°?"°F estopped from denying the agency, and is bound 1"-^^ only by the contract appearing on the face of the '^'°"^- pohcy, but by that actually made by such agent (^). The representations of an agent having authority to Ropresenta- solicit insurances and receive proposals bind the com- u^°°/ °^ "s^'^* pany (/.) ; and where an agent of the insurer writes the 1137' answers of the assured for him, the assured is presumed '*^^''* !,°'- to have read such answers before signing them. ' i'Ut if the agent puts his own construction on facts stated by the assured, and deduces an erroneous answer which he writes down assuring the applicant that it is tlie proper one on the facts stated, and the one the in- I An V ' . ' r, . *-• • ' ^9- Shannon v. Gore D strict Mutual -? Tr P 5'fc;,^";/''rf J/«^««U;o. V. Shannon, 2 hl^^l^'t^ ' ^-^^ (c; I'remk v. Backhuusa, 5 Burr 2728 , (I) SlT LK uHT^'t ?,: ''If; "="■ '% „ *c.. 65 K'd. Pipp A-" '^' ■"^""^''so/t V. TraDpRers. 448 THE LAWS OF INSURANCE. surer wants, the insured is not precluded by his war ranty from showing the circumstances under which the answer was made (i). Sr/c'Lrcf ^^' general authority given to the agent of an insur- by writing. ance company extends to the making of contracts bv tlTiT:Le '"'f^sQ)- But a local agent with authority to issue proof of loss, and deliver policies and to collect premiums has no authority to waive proof of loss (I). nei credere. -Del crcdcre agents, who are commissioned to insure may insure as owners, and, if sued for premiums in case of a loss can set off the amount of the policy (m) K„t If they describe themselves in the policies i agen though hey may be liable for the premiums, they are' not liable as insurers {n). ' oJ:! ^^;f T^ '^'''' °^ ' '°"^P^"y "^^^^^ ^n unwise contract for them, or is satisfied with answers in propo- sals which ought not tohP . been deemed satisfactory in these and many more supposable cases (collusion on the part of the person seeking insurance being out of the question) the company will be clearly bound,because m^ll the supposed cases the agent would be actin. within the scope of the authority which the companj neld him out as possessing (o). o^yttders, ^^ "" ^ff. ^"^^ '^ '''' ^^ ^ind his company, and doe: himself liable. SO in disobedience of orders, he will be liable to the company for the loss (p). BSjTi^)^:-J^^^-C ^t^ ^«"^- ^*- U-^-) 5^9. Mutual ^(^?:t^:6:;f ^'"' <''^^^'0^)> A. C. 485. 65 L. T, (/) Harrison v. Hartford Fire, cq Fed. Ren 7^2 (wi) Mienholt v. Roberts, 2 Camp N P cSrwrS, ri v , 2 M. & S. 1 12. ^"'"p. -i^>i. 1 . 5»0 ( 181 1). Koster v. Eason, (n) £aker V Langkorn, 4 Camp. 396. 8 W.^RTe?"'^""'""^ ^^- '■ ^^^'GilUvray, 13 Moore P. C. 87-124, ip) Washington Fire and Marine v. Clmchro. 35 Fed. Rep. 477. JUliANCE. AGENTS. precluded by his war- ances under which the the agent of an insur- iking of contracts by i'ith authority to issue 3ct premiums has no iimissioned to insure, • for premiums in case f the policy {m). Em !ie policies as agents, i premiums, they are my makes an unwise ith answers in propo- deemed satisfactory, [e cases (collusion on iurance being out of learly bound, because Dnt would be actin" which the company is company, and doec 'ill be liable to the lip. Ct. U.S.) 519. iVutual 591). A. C. 485, 65 L. T, i. 732. 1 8 1 1 ) . Koster v. Eason, , 13 Moore P. C. 87-124, ^o. 35 Fed. Rep. 477. 449 If a general agent gives grace for the payment of General agent overdue premiums, the company will, it seems be °"'^' *'=''«"* bound, and if not bound, if the directors receive' the Xumr'"^ agent s accounts with the entry of acceptance of overdue premmms without objection, they will ratify his act (q). But even a general agent cannot extend time for General agent payment ot premiums in the face of a condition in the '•'"'T ""'^"''^ policy that no waiver of any condition shall be valid Siunl's''''"^ unless made at the head office and signed by an officer tbnToZ''- of the company (?■). trary. If the company is a foreign company, its general General agent agents must, for the purpose of receiving premiums be "^ ^°'''^^" regarded in the same light as the company itself, and "pS'tl""^ knowledge and information brought home to such agents ^0^"^' *° IS the same as if made and brought liome to the company p'''''"'""^«- itself (s). • It is not within the power of directors of an in- Agreement by surance company to agree with an apent (i) for con- director to pay tinuance of payment to him after retirement from the agenTX" '" agency of a commission on premiums on policies effected "^""""^ "'"""^• through him and in force at his retirement, if there is no condition that he shall continue in the agency for a stipulated time, nor that the commission shall cease if the premiums cease to be paid ; or (2) for allowance of commission on premiums to his wife and children after his death during the agency (t). An agreement appointing a dij-actor of a life-assur- Director aiice company to select agents and medical referees for "pp^''^'^'^ to the company, the director to be paid a commission on a? a coT"*' mission. Xtill V. (?) Moffat V. Ueliunce Mutmd Life, d.t, U. C fO E \ efii Imn Mutual Life, 45 U. C. (Q. B.) 593: ^^' ^^ ^^' (r) Marvm v. Universal Life, 39 Am. Rep. 657, 85 N. Y. 278 ' W Mdmnx. Genesee Mutual, 16 Barb. (N. Y.) ci,. Campbell v National Insurance Co., 24 U. C. (C. P ) 1^1 144 Vnhht\,iFr Mutual Life, 45 U. C. (Q. B.) 561. ^^' ^^' "^ ' ^«''"»^e W Lewme's Case, Reilly (Alb. Arb.) 174, it S. J. 828. JJ'Clvre's ff«»«,S Ch. App. 737, 39 L. J. Ch. 68q. 2^1.^. N. S, f,Hc, H w R II 2 F 1 1,' •m .t i ■ f r!? 2a!!-: 450 THE LAWS OF INSURANCE. policies effected, is not a coi- tract of service within the exceptions to s. 29 of the Jomt-Stock Companies Act (7 & 8 Vic. c. no), which enacts that all contracts between directors and companies in which the director is interested are void. Consequently such agreement is void, and such director can recover nothing on it (u). By the Joint-Stock Companies Act, 1862, s. 57, a director vacates his office if he is concerned in or partici- pates in the profits of any contract with the company, Srec[o"^*n^ ^^ ^ ^^^^^^^^r makcs a contract in fraud of the com- X'any void ^^"^ "^'^^ ^ P'''^"" Cognizant of the fraud, such a against pur- Contract IS void even in the hands of an assi<^n for vafuT ^°' ^''^l^e who is totally innocent of the fraud (x). ° ofTnfsT'"' "f^^ ^^^g^ P^w^^s given to insurance agents in the E^Tand*^^" United States, where in many cases they represent "^ ""^ • their companies for all the purposes of an insurance business, and can therefore bind them to an almost un- limited extent within the scope of such business, render the American cases generally unsafe guides in this country, where powers of a much more limited character are given to the local agents of insurance companies (y). Where an agent is held out as having authority, no Ostensible authority not • ' . T """^ ''° "aviiig aUMOriiy, nO qualified by private instructions can prevent his acts within the private instructions scope of that authority from binding his principal, where his authority depends, and is known by those dealing with him to depend, on written mandate, it may be necessary to produce or account for the non- production of that writing in order to prove what was the scope of the agent's authority (z). {ii) Foole V. National Provincial Life, 27 L J Ex 210 (X) Athencvum Life Assurance v. Pooley, 3 De G. & J.'294, 28 L. J. Ch. 1x9, I Giff. 102, 5 Jur. N. S. 129. (ij) Wentern Assurance Co. v. Provincial, 26 Grant (U C ) 561 (z) National Bolivian Navigation Co. v. Wilson, sApp. Cas. 176,209, ilrAi- ;r^°' J^^^r. ^'""'^ Blackburn. Jllontreal Assurances. MUMhvray, 13 Moore P, C. 87, 121, 8 W. I?. 165. AGENTS, 451 An agent who answered an advertisement for agents Extent of to represent an insurance society, and received a renlv *"thorityof that the directors had appointed him agent, but got no sfe?d""'°"* special instructions as to the nature of his duties or '''"™'="°°«- the extent of his authority, and no directions as to receiving or refusing notices of withdrawal, or as to transmitting information thereof to headquarters, was lield by Vice-chancellor Wood a sufficient agent for the purpose of receiving such notice, so that notice to him would be notice to the company, and the person who had given such notice was held entitled to be struck off the list of shareholders (a). Where an authorized agent to whom notice is given IS also solicitor to the party giving it, and receives the notice as such solicitor for the purpose of transmitting It as agent, the notice is effectual in both capacities and the company are bound though the notice be not in fact sent to them by their agent (b). A mere casual noticewill not suffice; it must be notice to the agent as agent (c) in ohe course of business (d). An agent may bind his company by acting on Mistaken instructions erroneouyly delivered, and a company have j?«t>"««o"8. been held bound by an adjustment effected by an agent S-"^ instructed by telegram to decline, which word was in transmission altered into " decide " (e), that giving him ostensible authority to do what he did. If a clerk of the company gives a receipt for a premium, they will be bound even if no policy had bpen issued at the time of fire (/). (o) Hawtlm-HCH Case, 31 L. J, Ch. 625 ! I tf ^•/^'^"''■^ 16 L. J. Q. B. 119, lo W. E. ?72 230. H;V. R. 25. Gale v. Lewis, 9 Q. B. 710 J J^- -i. -». &. («) ^orth British v. HaUett, 7 Jur. N. S. 126^ o W T? 8S^ tt tJwrnea Case, atipra. ^' 9 "'• «• »so. ffaw. ^]PlomncialCo.y Roy, 2 Stephens Quebec Digest 400. ( / 1 rare. \, -Scott'll/ Imniv'nl 0-% -> yi I. °-- 'y~>^> i'igest 410. 452 THE LAWS OF INSURANCE. Ageut acting througli 8ub-ageDt. Company bound by acts of agent where intention to insure in another oflice. Credit of premium to agent, company not bound to issue^ policy. Although an agent cannot delegate his authority, there are many things which he may do through a sub-agent, and which are valid when so done;" for example, where a proposal for a life policy was accepted on behalf of an insurance company by their a^ent abroad, who acted in the transaction through "the medium of a sub-agent, and the premium was paid, it was held binding on the company, although the agent had no authority to appoint a sub-agent {g). Where a company by its agent receives money for an insurance, and a fire happens before a pohcy is issued, the company will be liable, even though the insure'! intended to insure in another office, and in- advertently accepted the i-eceipt supposing it to be the receipt of such other office. Thus W., as agent of the Commercial Union Company, accepting an insur- ance by M. in that office, W., without M.'s knowledge, ceased to be such agent and became agent for the European Company, and, on M.'s application for a fresh policy, W. gave him a prnted receipt, filled up for a policy for a month, until a regular policy should be made out. M. did not at first discover that the receipt was on behalf of the European Company, but, when he did, lie wrote to W., saying he should require to be satisfied of their respectability and standing. Before any policy was made out, the premises were burnt, and the Euro- pean office refused tc pay, but M. was held entitled to recover (A). Where an application is accepted by the company, but the premium only credited to the agent in the books of the applicant, the company cannot be made to issue a policy or pay on the footing of its issue, if prepayment of premium is a condition precedent and there be no proof that credit was intended {%), and the (g) Rosaiter v. Trafalgar Life Co., 27 Beav. 377. Internationd Trmt Co. v. Norwich Union, 71 Fed. Rep. 81. 1*^ ^i^"f/'''* ^'- -European Co., 21 L. T. N, S. 102, 17 W. R, gSi (?) Tf fl/for V. Prorincml, 7 Grant (U. C.) 137, S Graut (U. C.) iir 3URANCE. delegate his authority, he may do throurrli a d when so done; for ife policy was accepted apany by their agent insaction through the le premium was paid, ompany, although the it a sub-agent {rj). It receives money for ns before a policy is ible, even though the nother office, and in- b supposing it to be Thus W., as agent of y, accepting an insur- thout M.'s knowledge, )ecame agent for the application for a fresh eceipt, filled up for a policy should be made hat the receipt was on , but, when he did, lie luire to be satisfied of I. Before any policy burnt, and the Euro- . was held entitled to >ted by the company, to the agent in the pany cannot be made joting of its issue, if idition precedent and intended {i), and the Benv. 377. Inleniationd S. 102, 17 W. R. gSy. 137, S Graut(U. C.)2i;. AGENTS. 453 Agent to insure by policy on payment of premium can« not insure by parol or dispense with payment. Payment by cheque to agent whose banking account overdrawn sutticient. sending of a receipt by the agent without actual re- Written ceipt of the money will not complete such a contract. rgenfSn" ffec The receipt is a " mere acknowledgment in abev- '"*' ^'t'lo"' ^ z of money, A man who is and is known to be an agent only for eHecting insurances by policy on payment of a premium cannot effect a parol insurance, nor dispense with prepayment of premium ; and if he does such acts they will not bind the company (I), but will be [ vltra vim and void as not being within the scope of his authority. Where a premium due was paid by cheque to B., an agent of the insurers authorized to receive premiums, and the cheque was credited to IVa account, wliicli was overdrawn, this was held payment to the company, and the company could not either avoid the policy or maintain an action for the premium. The cheque, of course, was honoured (m), and an agent, of course, is only bound to hand over an equivalent, not the money received (n). An insurance agent's authority does not empower Agent insuring hun to grant an insurance in his own favour binding '""'^^"• on his principals, even if it be a second insurance, and the prior policy has been granted with the express sanction and approval of the company. His business is to represent the insurance company in dealing with others. In insuring himself he would have to°act in two capacities (0). Even where an agent is allowed to insure himself Agent cannot with the company for which he is agent, he cannot so ^''s"'-* ^l^nseif insuie tor a sura exceeding the limit fixed by the rule^J^^^d of the company (p). coapany s limii. (/.) 8 Grant (U. C.) 219, per Kobinson, C..T. llv Jj^'^l'J''*"' -•^«««''«''ce Co. V. M'GiUirray, 13 Moore P. C. 87, 124, 39 L. J. C. P. 251, (Hi) Etna Life Co. v. Green, 38 U. C. (Q. B.) 41:0 [n]^mBrHUje8 v. Garrett, L. R. 5 C. P. 451, 2 L. T N. S. 448, ,8 W. R. 815. ^^ ' 0) niiitey. Lmicas/nre ImurHuce Co., 27 (irant (U. C.) 61 (p) luekery. Promndal rumtrnnce Co., yih'mt {U. C.) 122 I i 454 TIIK LAW.S OF IX8UHANCE. crediting oompauy with pi°ntnluuiH aftei' for- feiture. X™en^ ^//", "S^*"^ ^^^^^'« »" assiKunient of a policy an>> Has occurred, tlie policy will bo invalid, but an action XX'?^ ^"^ authorized agent of an insurance company rJ^SstV- r;r"^ "^'^ '^^'^^^'^-^ -^ "PPl-ation and negotiat without diB- ^» " surance as agent for tlie company on pronertv nf teft,«Si, -^"f '- -s one of the owners.' nl conSS" >vas void. the transaction to his principals witliout dis. losin-^ hi interest, and on receiving the policy handed it fo\he person named in the policy as being assured thereby rhe policy was on that ground held void, and, the con: • tract being one, other interests fell too (r). There seems to be some authority for saying that the communications between the insurers and tlfeir t are privileged if they form part of the prelimh^ y fwo companies ., ^'^f ^^^"^ ^°^' '^^ i»surance companies having autho- ^rureTne*'' IZ'T" T '" """"^' "^"""' "^^^ ^° ^" «"^°""t not the other, exceeaing ,^5000, accepted a marine risk for J^77oo m favour of that company, but re-insured for ^2700111^ n'.i ''';/?^. ^'T^'^ " '^""'^ '^ ^"^^^ ^ memorandum to that effect in the books of the second company but olurred "t" ''• '^'' ''"'^'''^ ""'^^ ^^^^^ ' ^- occiured. Ihe re-insuring company was held not en- titled to recover back the amount of re-insurance whicli had been paid by the agent on a loss, without proof that the agent acted mal4,/>:de in effecting the re-iusur- ance, or did not conform to fch,. rules 01 his principals known to the re-assu.ed ^/). ComtnunicK- tions between iusurers and agent, when privileged. (q) Ijuftetdy West of Jingland Co., 5 Ir. Ch. cc, L ^iJ- ilY'J'^/r' ^'^«"''^ 41 Barb. (K. V' f 353 (8) racijir. Mutual Co. v. Jhittci-s 1-7 Tr f'o„ 1 ^^' ^ n , V. /. 6' ]V li T, B , n I ' '/J'r. (an. Jur. 309. i^w Bahr Ora,... aivt- ,^i. t^-^. Es '■■ '■ "■ "• "■ " «' "■ "'■ Jl) a,na,laj„„,„,„ce O,. v. 7I'„,„.« /„.„„^, co.. 26i:,,„t(U.C.), WUKANCE. nnent of a policy, aini fomiuius aftei forfeiture I invalid, but an action rn if the forfeiture is n insurance coinpaiiy ication and negotiated >mpany on property of irs, nd eomniunicat 'il witliout dia>:losir)'^ hi, olicy handed it fo\he »eing assured thereby. eld void, and, tlie cou- II too (r). ity for saying that the urers and their agent t of the preliminary cle with reference to ipanies having autho- sks to an amount not rine risk for J^z/oo insured for $2 700 in 3nter a memorandum second company, but ' until after a loss ny was held not en- f re insurance whicli loss, without proof ftecting the re-insur- les oi his principals ^- V.)3S3. n. Jur. 309. See Baler Q- 15- 53. i6 W. E. 126. -inceCo., 26 Grant (U.C), AGENTS. 455 A i.ractico of the agents of two companies to ellect Settlement of re-insurances without innnediate payment of premiums, Cl.T"" '" but on a monthly balance of accounts unsanctioned by »«:ouut the company, and whereof they had no notice, this Agent's." ^^"^ re-insurance account, not being sent up to headquarters, is not binding on the Companies {a). Fire and life assurances are 'carried on to an enor- Courts Ulcus extent through local agencies, and not by direct 1"°'',"^? ''^ dealings with the officers of the companies at their 'nsiranots head.iuarters {x). It is consequently of the highest Igenfn'r' importance to those dealing with such agents, and the authorur*''" Courts are inclined to insist, that the assured should not run the peril of the agent neglecting strictly to perform his duty (y). For if a policy is to be held vitiated because, in a manner of which the assured is ignorant, the agent goes beyond his authority, no insurance eftected through an agent would be safe {z). In America, however, the Courts have gone so far as to hold that where the insurance agent wrote out the particulars of a proposal, and made a false representa- tion as to the facts of which the assured told him the truth, the assured could not prove his parol state- ment as against the written falsehood, and could not therefore enforce the policy (a). The agent doing this was, however, by stipulation, the agent of the assured. Specific performance, it would seem, may be had of Agreement to an agreement to grant a policy of assurance, provided 8™"' PoM^y ti,«t iL , , •, ' i'*^'-''-'^" may be speci- tliat the agreement be made on behalf of the company flc.iiiy per- by an agent properly qualified to do so and acting ^°""'''" within tne scope of his authority. But an ordinary (ti) Western Assurance Co. v. Prorinciul Inmrance Co., 26 Grant (r) M(ickie y. European Co., 21 L. T. N. S. 102, 17 \V. R. 587. O.N. 120, 18 .,ul^ 394, 2 W. 1{. 379. ^ ^ [^) Madae v. European Co , ubi mpra. J") Jiohrbarh y. Uermunia Fire Ins. Co., 20 Am. Kep. 451, 462, but V \ '^'^ «'•'««"« ^«». Co., 96 Penn. 37 (1880). hunters Co. v. Jtytn, 30 Am. Kep. 521, IS 456 Local apent caunot b>nd company to grant policy. Powers of local agent. Authority to receive appli- cations is not authority to accept them. Authority to receive premiums does not authorize giving credit. Company bound by local agent acting with authority. THE LAWS OF INSURANCE. local agent has „„ authority to enter into a contract t^ g ant u pohoy without the sanction of the direct of the comrany. He is merely an agent to receiv and sub^t proposals made, and to inform the app c ot the decision of the directors on his proposal H canno on receiving the premium say with bindi,,! effect tl,a a po icy shall be granted. And if an ap it .ant trusts such aa agent and pays him the premi , before reoemng the policy, he has no equity t'o obta a policy. ]t would be otherwise probably with a uXr tr™'".^";' '» ^"* ^8-' whose' r! 4 un ess otherwise s ipulated, would be a good dischail hands, and ( rom whatever reason) they are not boii to issue a policy, they must return the premium (™ wilflrilr"""' ""'''"'■ "-"^ ''P°'' Vl'^kMo., will not imply power to accept them or bind the com. pany, his principals, by stating that the right attached at a c rtain moment (c). Such an agent would not earn his commission till the company had in.,pectecl the risk and would, in fact, be a mere person employed obtain business. Even if he has power also'to ■. give credit for the renewal premium beyond the time limited in the policy (d). treated as their agent to communicate with persons effectmg insurances, and what he says or does h h capacity within the usual limits of such a^eL l'., " be held binding on the company (e). ranee. Co., ii (Imn, /l™r iV,', V'-'Z' ■■'ll"<"ltur,,l. .\f„„„l ll lO Burance. 404, 5 Ir. Uli. 553. (e) Penley v. Beacon Irs. Co., 7 Grant (T. C.) 130. AGENTS. 457 Where uotice to be given to head office, notice to local agent iusufiicieut. Verbal notice generally sufficient notice to agents. Delivery to local agents of notice of fire is sufficient Notice to a within a condition requiring notice to the company ^°°*' *^®°*- unless the policy otherwise stipulates (/). Notice to a local agent will be useless when the notice ought to be given at the head office {g). Verbal notice will, however, suffice if not stipulated against {h). Xotice to an agent if he has power (i) to receive such notice will bind the company, even though the agent received such notice in a different capacity, and never communicated it to his principals (/j). Mere knowledge privately obtained by a party connected with the com- pany will not suffice {I). The notice as regards fire policies need not be in writing {ni) unless so stipulated. Notice to directors must be given to them as such {n). Notice to directors. An «gent, of course, cannot waive a forfeiture (o) in Waiver of the face of a condition in the policy that it shall not S'\"of ^^ attach until the premium is paid, and that only the Femmms. president or secretary should waive a forfeiture {p). But if the directors receive premiums through a local agent after a forfeiture, the policy will be valid {q). Although, as a rule, an agent cannot waive a for- Waiver of feitiue, it may be done under special circumstances, Igltby' ^^ as in the following case: — By the non-payment of ™''«'p'^o^ ^ '' overdue overdue premium. (f)Peppitt v. yorth British and Mercantile (iS79\ i Iius«. & Ciedd. ,\ ,f -^^i^; Butterworth v. Western Insurance Co., 132 Mass. 480 \(J) Ileiidrichson v. Queen Imuranve Co., 31 U. C. (Q B ) Cd? (/i) Xorth British Insurance v. JIullett, 7 Jur. N. S,"i263,9"w. R. (') Ex parte Hennessy, i Connor & Lawson (Ir.) qcq ( ■) Gale V. Lewis, 9 Q. 15. 730, 16 L. J. Q. B. 119 (') lliompson, v. /Sjijeiri,; 13 iSini. 469. ( H) Gale V. Lewis, supra, where no written notice was given (") Jlawthorue's Claim, 31 L. J. Ch. 625, 6 L. T. N. S. 574, ic W. R. (0) Jacobs V. Equitable, 17 U C. (Q. B.) 35, ,8 do. 14, ,9 do. 250. frt r — 458 Meaning of proviso aa to insured " being in good health." 201^' 1 ^a: •••*SI' ■''*' <;77 {") Hartjord Fire, etc. v. Smull, 66 Fed. lip 493 ^ ^^^' AGENTS. 459 re An inspector of risks cannot dispense with conditions inspector elating to the keeping of prohibited or highly liazardous "''°°°* ''•'t ,..ods either at all or largely in excess of°the allowab" ?=^^^^^ quantities, or to a mis-description of the mode of heatin- '°"''"'°"'' or tlie precautions required in case of steam being used or with respect to chimneys or stove pipes, or the de- posit of ashes, or the proximity of dangerous places (x). If in every case the proposals for a contract of in- Effect on surance emanate' ^"d the .same would be the case if a sub-agent commits a fraud and the agent proHts by it (n). fr«rr fll'''^^'' °^ ^ ^if« policy procured th^ougli tl.e polcy after, knowledge of the fraud simply because such knowledge did not come to him until afte p^ No liability falls upon an insurance company for fraud or misrepresentation of the secretary or any other agent outside th^ business of the company or the o-d nary scope of his duties (p), and knowledge of an - surance agent obtained otherwise than through such agency does not affect the company (q). If an interim receipt be delivered by an agent fully issue a policy in so many days (.), and the insurers neither do so in the time nor refund the premium Tev win be held bound as if they had issued'the p2y f or be made to issue the policy (vJ). ^^" bvtf^ ^f ^^■';"««/:7Pany cannot adopt contracts made by Its agents which are not within the scope of the company s business. Thus a company formed for life assurance cannot undertake marine insurance, and ever' time treated as binding, the Courts will not allow re- (m) Per Cockburn, C. J., in san.e case, p. 248 Bruns.)452. ^'^ ^'-^""^ ^- ihceen Ins. Co., i Ha.nay (New (q) Union National Banh \. German Inn Pn ^t p 1 d s) Maclae v. European Co., 21L. T N S 102 17 W 1? nS, (t) Paterson v. Iloyal Ins Co ia f},nnf ?ii n\ '7 »v. K. 987. Ju) Albion V. Midlns do . ^%'T \^\^-l'^^- (So.) 218, I Dow & CI. H L Vd2 r^;;!;'- ^ '\f "r^z,57S. 3 W. & S. 3 C. S. C. (ist series) .fn -1^"? ,. ^'^''^^' ^- ^^'^f' British Im. Co., , >-,. ^uran V. UacuUon, su^ru, note (»•}. URANCB. t)le (m), and the same commits a fraud and procured thi'ougli tlie may not retain such 'raud simply because him until after pay- , and delivery to him lurance company for ecretary or any other iompany or the ordi- knowledge of an in- than through such 2d by an agent fully ining a promise to 0, and the insurers I the premium, they ssued the policy (t), lopt contracts made 1 the scope of the any formed for life insurance, and even 5 granted and for a will not allow re- 1 H. L. 424. p. Sf9. Ptnclun V. Itealm Jus. • Co., I Hannay (New ■ .71 Fed. Rep. 473. D2, 17 W. R. 987. C.) 169. series) 575, 3 W. & S. Vorth British Ins. Co., Sii^ru, note (»•). AGENTS. 463 covery thereon, but will order the premiums to be repaid or allow them to be proved for in the winding up (a;). Xor can one company adopt the policies granted by Company another company, unless powers in that behalf are '^°°°* "''"P* given in the deed of B»f<-iorr.o«f „^,i . , ?°'A1*®^°^ fonnably therewith (y). given in the deed of settlement and executed con-Sfr' Pni...ioV.? - <-V.«„ — .•i.i- / \ company 80 empowered. 15ut where a policy is intra vires, so far as the com- Company can pany is concerned, though not within the jcove of the "*'"y ''^^"' ^-""pW nnpropev navigation, it being proved that the usua^ --Pter "^ ormof policy there granted excepted such risk, and *''"'''• tliat no special instructions had been given (&). If a man on being requested to effect a policy says ~ May 22, 1883, in Q. B. D. ^ ^^" (« bee also A7co/v./Jm«„. Diet, of Decisions ^'^c) vo! -vii n , « I*) Guoderhum v. Marlett, 14 U. C. (Q. b') 228? ' ^' ^ 9" 467 Delay till day after agent received instructions, not negligence. 468 TlIK LAW.S OF INHURANCE. ' ,1 Owninturer. hn will be his owii insurer, this does not make hini an insurer fur the owner, nor liable as an agent who lias undertaken to insure, but simply means that he will not insure his own interest in the goods (e). An agent to effect an insurance is not entitled to receive a commission from the insurers and the assured, and if he does so the assured may recover the amount from him (d), unless he has acquiesced in the receipt by the agent of such commission. If discount be allowed for prompt payment, it belongs to the principal and not to the agent (c). Misrepresentation made by the assured's agent (wliether due to fraud or negligence) in procuring u policy is equally fatal, whether made with the know- ledge and consent of the principal or not, since in either case the ground is the same, that the underwriters are deceived (/). Notice to the assured's broker will not be notice to the insurer (g), but the knowledge of the agent will bind his principal (h). Agont cannot receive com- mission from insurer and assured. Discount belongs to principal. Principal affected by fraud or misrepreseuta tion of agent. Notice to as- sured's broker ?ef'ereT&c°/ . '^^^'"^ '^ ^° analogy between the statement of the not anai'o- " life or the referees in the negotiations for a life insur- ofbrokers"^^ ^^^^ ^^^ ^lie Statements by an insurance broker to underwriters by which he induces; them to subscribe the policy (i). If reference is made to the person on whose life a The "life" is the agent of i. --- iX7ed to^^" ^° ^^^ ^^ sought for an answer to a particular question, by him. — — . (c) Gooderhnm v. Marlett, 14 U. C. (Q. B.) 228 {(l) Copp V. Li/Hc/i. (1882), 26 S. J. 348, 361. (e) Queen of Spain v. Purr, 39 L. J. Ch. j^. (/) FitzHerhert v. Mather, i T. R. 12 ; and see per Story, J., Car- penter V. American Insurance Co., 1 Story Rep. 57 {fj) M'Lachlan v. Etna, 4 Alien (New i3runs.) 17"^ (h) Lynch v. Dunsford, 14 East 494. (I) Wieelton v. Hardisty, 8 E. & B. 232, 270, per Campbell, C.J., 3 Jun N.i^ieg'^'' ^ • ^^'^^ ^ ^- ^- 539. 3i L. T. 0. S. 303, UJUNCB. iocs not iiiako hlru an i as an agent wlio has ^ njeans that lie will 3 goods {c). ice is not entitled to mrers and the assured, y recover the amount uiesced in the receiiit pt payment, it belonfjs jent {(•). agent the assured's ;ence) in procuring a lade with the know- pal or not, since in that the underwriters will not be notice to ge of the agent will he statement of the ions for a life insur- insurance broker to E them to subscribe son on whose life a particular question, 228. [. 5- nd see per Story, J., Car- 3p. 57. ]s.) 173. , 270, per Campbell, C.J., 539. 31 L. T. 0. t>. 303, A(!ENTS. the assured is bound by that answer, the " life " hchv* his agent for making it, but he will not be bound by other answers in respect whereof reference was not made by him {k\ nor by the non-disclosure of material facts by " the life," of which insurers and assured are ciually Ignorant (/), and as to which the assured has not been asked. But a general reference to " the life " will make him the assured's agent {m) in obtaining the policy, and any fraud, misrepresentation, or concealment by him will defeat the policy («). It is usual, however, now to insist on answers by the life and to have them warranted. Jieference to a medical man falls under the same Medical man rules, and liis representations as to the health of the "' *»''"'• life bind the assured if material, and if warranted even when immaterial, and this even though the insurer's medical officers may have examined the life or have been informed by him of the matter in question (0). Sometimes the proposal contains a provision that if any untrue statement be made in the answers to the (luestions put by the company's medical examiner, the premiums shall be forfeited and the policy void (p). The authority of a broker employed to procure Authority nisurance for his principal, such broker not beincr °f b™i'«'- a general agent to place and manage insurance on hisSuT"^*" prnicipars property, terminates with the procurement '°'"™°''- of tiie policy ; therefore where a policy was subject to cancellation on notice, and provided that any person, 469 (/•) Wheeltoii v. HanUsti/, ubi supra. y^«« V. lirackhaw , Win. 151. 3,2, 2 Park Ins. 934 (8th ed ) ('«) Jlai/nardv. Mode, 5 Dowl. &llv 266 iV .t M X on 1 271 .J/r ^'^'"Pueil, C.J., in Uheelton v. JIurdisty, 8 E. & B. 232, Sei'US'" ^' ^'^'"^"''^'' ^''^'' ^''«"'-«»^-« C-o- 10 C. S. C. (i8t series) («) Connecticut 31utualUfeIn,HranreCh.v.Mn^^^^ Cus 6.1.1 U') ndahaye v. Bruisk Empire, 13 Times L. R. 245 ^^" ^^' -as-: 470 THE LAWS OF INSUllANCE. Other than the assured, procuring the policy should be deemed an agent of the assured, it was held that notice of cancellation to the brokers who procured the policy, the assured being ignorant of such notice, was of no effect {q). (q) Hermann v. Kiofjara Fire Co., 53 Am. Rep. 197, 55 SickellfN Y ) 411. , Hodge y. Security Ins. Co., 33 Hun. (N. f.) <:8^. Von Wei,, 'J Scottish, &c., Co., 52 N. Y. (Sup. Ct Rep.) 490. " ( 471 ) CHAPTEK XXV. ACCIDENT. Accident insurance is a branch of life insurance by Accident which persons are enabled to provide against loss to '°«"'»"^e- themselves or their families in case they are injured or disabled for a time, or permanently, or killed by some one or other cause operating on them from with- out. Ordinary life insurance affords no provision for the assured's family in any cases short of his death or of his reaching a given age. And while friendly societies supply a mode of insuring against disability through sickness, accident insurance guarantees a man against the consequences of disability through falls and personal injuries not caused by disease or the wilful act of the person insured. A policy of insurance against accidents as usually Accidental drawn is not a contract of indemnity. Alderson, B., ^oScrof said, " This is not a contract of indemnity, because a "iidemnity. person cannot be indemnified for the loss of life as he can in the case of a house or shop " (a). Consequently, if the accident be caused by the wrongful act of a third person, it would seem that the insurers are not entitled either to deduct from the amount paid by them anything recovered by the assured from the tortfeasor, and that they are not subrogated to his rights against the tortfeasor (b). The tortfeasor cannot claim to have the amount (a) T/ieobald v. Jhtllway Passewjers' , «Cr., Co., lo Ex. 45, 53 per Akiei.sui, JJ.,^23 L. J. Ex. 249, 23 L. T. 222, 18 Jur. 583, 2 W. K. 528. ','') 27 & 2S N ict. i.ap. lxxv. h. 35. And .^ee the jucigiiienu ia Brud- liiim V. Great Western Jiuihmy, L. i!, 10 Ex. i. 472 Death from negligence. Lord Gamp- bell's Act Damages. Assured's rights against third person preserved. Lord Camp- bell's Act. Nature of policy. THE LAW.S OF INSUllANG'E. recovered from the insurers deducted from the dainarres which he has to pay (c). *' But if the assured is killed by an accident resulting from negligence, and an action is brought by his rela^ tives under Lord Campbell's Act, 9 & lo Vict. c. 93 for the loss they have sustained, such loss is to be' calculated with reference to any insurances on his life (other than with the Eailway Passengers' Assurance Company), and the amount of the insurance-money should be deducted from the damages recovered (d). But by the Railway Passengers' Assurance Companies Act, 1864 (e), it is enacted that no contract of the com- pany nor any compensation received or recoverable by virtue of any such contract, either under this Act or otherwise, shall prejudice or affect any right of action claim, or demand which any person or his executors or administrators may have against any other company or any person, either at Common Law or by virtue Jf an Act passed in the session of tlie 9th and loth years of her present Majesty, intituled " An Act for com- pensating the Families of Persons killed by Accident " or of any other Act of Parliament, for the injury, whether fatal or otherwise, in respect of which the com- pensation is received or recoverable. In some of the earlier English (/) cases of accident insurance, the policies have been drawn, to some extent at least, as contracts of indemnity. Thus, in Theobald V. Umlwai/ Passengers Assurance Company (g), where the contract was to pay ;i:iooo to the executors of the supra: ■' ^ ^- ''" 5 and perBramwell, B., i., Bnidburn v. G. W. R., (e) 7 & 28 Vict. cap. cxxv. s. 35. ,i'^ \° f • 4S-.23 L. J. Ex .40, 23 L. T. 222, iS Jur. 583. 2 W. R. 5-5. 12 ;S: ij Vict. cap. XI. ; 15 & 16 Vict. cap. c. UllANG'E. ;ted from the damages ■ an accident resulting brought by his rela^ , 9 & lo Vict. c. 93, 3, such loss is to be insurances on his life *assengers' Assurance the insurance-money Lges recovered (d). Assurance Companies ) contract of the com- bed or recoverable by r under this Act or any right of action, on or his executors i any other company Law or by virtue of 9th and roth years " An Act for coni- killed by Accident," jnt, for the injury, ct of which the com- /) cases of accident •awn, to some extent Thus, in Theobald npany (g), where the 16 executors of the nupra; but see Lirerpool f S. 403 n. Franklin v. ill Bnidburn v. G. W. li., 'm.«. Co., 22 Hun. (N. Y.) f isucli a policy is iiartial J, iS Jur. 583, 2 W. R ). 0. ACCIDENT. 473 assured on his death, or a proportionate part to himself in case of personal injury, and the assured was injured, What damages the (Jourt of Exchequer held that the insurers were '"°°°^«''''*'ie. bound to indemnify the assured for the costs of the iiuidical attendance and expenses to which he was put by tlie accident, but not for loss of time or profit, thus following the rule of Wriffhi v. Pole (h) that profits cannot be recovered under a policy unless insured in terms. And Pollock, C.B. (i), said, " What the in- surance company calculate on indemnifying against is the expense and pain and loss immediately connected witli the accident, and not remote consequences that may follow according to the business of the passenger." In this case there were clearly two distinct con- tracts — (i) To pay ;^iooo to the assured's executors if he was killed by accident. (2) To compensate him to any amount, not exceed- ing £1000, for the expense and pain and loss caused to him by accident. The first contract was to pay the representatives of the insured a liquidated sum in a certain event, the second to compensate the insured himself up to i; 1,000 in a certain other event. And the view of Alderson, B. (/•), " that no proportion could exist between injuries short of death, and death," well fixpresses the essential difference of the two contracts, and the impossibility of establishing a ratio betweeri the two events provided against. The private Act of Form and the .usurers (/) contained the form of contract adopted °**"i"« °^ in the above case. But at present the usual form of S°* an accident policy is to pay a certain fixed sum per week in case of injury, and a certain other fixed sum "1 case of death. Such policies do not contemplate (/t) Ante, p. 240. (i) Theobald v. Bailwaij Passengers, Ac, Co., 10 Ex. sS. (0 IS & 16 Vict. cap. c. ■ .■,.( 474 Assured not under twelve years. Insurance by friendly societies. Insurable inten.'st requisite. i Accident time policies. ^9 THE LAWS OF INSURANCE. indemnity, and avoid the necessity of soinc into l.p assured's accounts or private affairs. ° Insurance against accident wliile travellincr by rail way may not be effected with the Eailway plssen.e " Assurance Company, by or on behalf of any one uncle welve years of age, and every insurance ticket obtaine by or on behalf of such person shall be utterly vo against the company (m). Insurance by friendly societies against accident, general y as open to all over sixteen in the ordina course (n), and to still younger children under certail special conditions prescribed by the Friendly Societies Act, 1875 (0). • The rules as to its being necessary for the person effecting a policy against accidents to have an insurable interest m the health or life of the assured are the same as tor all other insurances, under 14 Geo. III. c 48 (o\ which statute provides that it shall be competent to show that the policy was in fact made on account of a person other than the person to whom it is expressed to be made ((/). ^ Accident policies, like marine policies, may be divided into time policies and voyage policies. The former Ike ordinary life policies, are made by the year or for' life, and only differ from them in the nature of the risk insured against. They cover all forms of accident irrespective of the place where the assured is But il IS not unusual to limit the area within which the accident is to happen ; thus where the policy provided against accidents within the United Kingdom or the continent of Europe, and that it should be avoided as (m) 27 & 28 Vict. cap. cxxv. s. 34. (I/) name cHse. ■' > j • o"/- URANCE. ity of going into Jie irs. die travelling by rail- e Eailway Passengers^ half of any one under Rirance ticket obtained shall be utterly void ies against accidents sateen in the ordinary hildren under certain the Friendly Societies essary for the person 5 to have an insurable assured are tlie same 4 Geo. III. c. 48 (p), lall be competent to nade on account of a whom it is expressed licies, may be divided licies. The forme)', 3 by the year or for ie nature of the risk forms of accident, ! assured is. But it I M^ithiu which the the policy provided id Kingdom or tJie lould be avoided as ict. c. 60), s. S. &F. 116, 2 II. &N. 42, 11.567. ACCIDENT. soon as the assured took ship limits, the assured was killed insurers disputed their liability (dia) that Jersey was neither in nor on the continent of Europe", held that Jersey was within within the meaning of the policy 475 to go outside those in Jersey, and the on the ground (inter tlie United Kingdom The Court, however, the United Kingdom (r). Voyage policies may or may not be limited in point of time. Tlius, a railway insurance against accident is only available for so many days, and if the journey is protracted beyond those days, the policy ceases to be available. It is always limited in point of space to a prescribed journey, and a passenger insured from London to Aberdeen, with liberty to break the journey given him by the railway company, would not be insured aganist accidents happening to him if he chose to go to Scarborough in the time allowed him at York, for though travelling he would be deviating from 'the journey for which he was insured. It would, however, probably be otherwise if his train, through some acci- dent or negligence of the railway company, deviated on to a brancli line and he was there injured. Alderson, B. (s), defined a railway accident to be r^j,^^ "an accident occurring in the course of travellincr accidZI by a railway, and arising out of the fact of the journey! '^"^""'"°' It does not necessarily depend upon any accident to the railway or machinery connected witii it ; " but Pollock, C.B. (p. 5 7), declined to lay down any general rule. He, however, in the case before the Court laid emphasis on the following facts, viz. :— (i) The plaintiff was a traveller on the railway. (3) Though at the time ot the accident his journey had in one sense terminated by the cariiage having stopped, he had not ceased to be connected with the carriage, for he was still in it («J 1 lieubakl V. liuilwmj Pas^etiffers', lo Ex. 58, supra. :-! 476 £5Ca Breaking journey. Insurance ticket for particular journey. TIIK LAWS OF TNSUliANCK. (3) The accident happened without ne-h-jrence on his part, an.l while he was doing an act which as a pas- senger he must necessarily liave done, for a passe.L nnist get u.to the carnage, and get out of it when the journey is at an end. and cannot be considered as ,ii.s connected with the carriage and railway, and with the machinery of motion, until he has, as it were, safely landed from the carriage and got on the platfonu 111 ■ ■ oiit IS attributable to his being a passenger on tlie.',,.- y,and it arises out of an act immediately eonneo.tid with his being such passenger." When, in respect of a water show at Earl's Court the plamtiils had insured themselves against liability " for personal injury caused to any person not in the service of the plaintifr syndicate, by any accident to the boats or shutes used in the show owned by the plaintiff syndicate, and a boat of the plaintiffs came down the suite and struck a water bicycle not owned by the plaintiffs, and injured a person therein, it was held that there was an accident to the plaintiffs' boat, though it was not injured, and that the persons injured need i.ot be in the plaintiffs' boat to entitle them to recover (0- A\^here the journey insured for is not wholly with- out break, and in the same conveyance, the policy will It would seem, cover passage from railway to steamer or from one conveyance to another (u). But where the insurance is by public or private conveyance between two points, and the assured finds no conveyance at a certain stage of his journey and tries to complete It on toot, he will, it seems, not be protected (x). Insurances against railway accident are usually effected by ticket, purchased at a station like a railway (<) 7%/o«'« Worh/'s Water S/wiv Hyndlcate v. Emplomrs iMthMn Asmrance Orrpomtion, ii Times L. 1{:(C. A.^ ,84 " ^^{u) hee yoHhmp v. Jiailwai, I'assemjers' Assttrance Co., 4j X. Y, (.T) Southard V. Railway Paseer„je.rs Assurance Vo., 34 Conn. 574. S out ue-^Iijreiice on liis 1 act which as a jms- done, for n pas.seugur :et out of it when tJie be considered as dis- -ailway, and with the las, as it were, safely ;ot on the phatform. being a passenger on ' an act inmiediately senger,*' •w at Earl's Court tlie against liability " for son not in the service iccideni to the boats ned by the plaintiff itifis came down the • not owned by the ein, it was held that itiffs' l)oat, though it oils injured need Dot them to recover (t). is not wholly witli- mce, the policy will, railway to steamer ler (?/). But where private conveyance finds no conveyance tid tries to complete protected (x). 3ident are usually ation like a railway 477 e V. Employers' LiuhiUtij ) 384. Issurance Co., 43 K Y, ance Co., 34 Conn. 574. ACCIDENT. ticket. The contract for such insurance is eflected by the sale and i)urchase of such ticket from the proper I-irson (usu.'illy the ticket ofhcer of the railway com- pany). Jiy the Railway Pa.ssengers' Assurance Com- pany s Act, 1864, (>/) s. 6, ic is provided that in all cases, tickets of insurance for particular journeys shall be held to be a valid execution by the company of the contract set out in the .schedule thereto, and that nothin.. further shall be recpiired to be done by the company m order to legally bind the company to the perform- ance thereof. This mode of contracting is subject to a disadvantage, that the assured is not identified, and may give away his ticket without much danger of discovery, although to do ,so is a misdemeanour and avoids the contract made by the ticket (z). The contract in the said schedule is to pay to any Assured must person over the age of twelve who has duly and for ^'' ^"^^^r the premium demanded, obtained one of the company's '""'''''^'• insurance tickets, and sustains an injury caused by an accident to the train or to the carriage while travellino' (hiring the particular journey for which the ticket is issued. The compensation payable is as follows, viz. :- Amount of wnerettie amount payable in case of death is £iooo compensation. and the assured is not killed, but totally disabled, he IS entitled to ^6 per week, but if partially disabled to ^ I I OS. per week. If the sum insured in case of death IS ^500, and the assured is not killed, but totally disabled, he is entitled to £3 per week, but if partially disabled to i 5s. per week. If the sum insured in case of death IS ;^200, and the assured is not killed but totally disabled, he is entitled to £1 ss.. but if partially disa1)led to 6s. 3d. per week. But the Act provides difieient rates for excursion trains. If there be con- tributory negligence in the assured he cannot recover, (y) 27 & 28 Viot. cap. cxxv. (z) J hid. 478 Time policy against accident. Insured not obliged to continue. Each renewal a new contract What must be stated in proposal for accident policy. TIIK LAWS OF INSURANCE. and if any claim is fraudulent the company mav recover back the money paid (a). ^ « This form of contract by ticket issued on demand and tender of the proper premium is possible for insurer, because the risk to be run is calculable before hand, and the occupation, age, and habits of the assured can very seldom increase the probability of an accident happening while the assured is travelling. But wl) 1 drunkenness or any affliction increasing liability to accident is apparent in the applicant, the railway con pany would have a right to refuse to issue an insu ance ticket to him; the words of the statute are permissive, not obligatory (h). Time policies against accidents are effected in the same way as ordinary time policies, on the basis of a proposal and declaration signed by the applicant con- taining such information as the insurers deem necessary and good faith requires. But there is no obligation in he insurer to continue an accident policy, as there is in the case of a life policy (c). ■ And where a policy against accident is for one year renewable from time to time by consent, each renewal IS a new contract, and not a renewal of the original contract (d). ° A man seeking insurance against accident will be bound to disclose any circumstances of which he is aware which he thinks would make the insurers dechne to insure him, or charge a higher premium as for an increased form of risk. The applicant is usually required to declare that he (a) 27 & 28 Vict. cap. cxxv. ,s. 3, and sched. (o) Ibid., N. 4. uf. G.V llg'^ol^'t \T-vJ> ^''T'V- ^<^<^^d^^^tal Deatk 26 ^('lUfM V. Heywood (1897), i Ch. D. 459, 74 L. T. 781. 65 L. J. iURANCE. it the company may • ket issued on deniaml im is possible for the n is calculable before- 1 habits of the assured bability of an accident avelling. But wliere icreasing liability to ant, the railway com- se to issue an insur- of the statute are J s are effected in the is, on the basis of a y the applicant, con- irers deem necessary e is no obligation in it policy, as there is ient is for one year, 'nsent, each renewal wal of the original ist accident will be :es of which he is ;he insurers dechne premium as for an to declare that he V. Accidental Death, 26 ;, see 2 C. B. N. S. 257, , 74 L. T. 781, 6s L. J, ACCIDENT. is in good health at the time of application ; that he has never had a St of any kind, or paralysis, or ^out ov drhrum tremens ; tliat he has no rupture, physical defect, or deformity ; that his habits are at the time of application, and have always been, sober and temperate and that there is nothing in his occupation, mode o^ habits of life rendering him peculiarly liable to accident and that he knows of nothing which he thinks would mak-e the insurers unwilling to take his risk ; and this eclaration, with certain specific answers, is made the basis of the contract, and if they are not in all respects true, the policy will be voidable, and all premiums paid thereunder subject to forfeiture. 479 Peculiarly liable to accident, paralysis, slight lame- I'ess. Agent's knowledge. To the question, ''Are there any circumstances which render you peculiarly liable to accident ? " the assured answered, by way of warranty, " Slight lame- ness from birth,'' and that he had not had paralysis or a fit of any kind, and had no physical infirmity The company alleged that the declaration was untrue and t e policy void ; but in an action on the policy the plaintiff recovered, on the ground that the lameness had been seen by the agent, who concurred in its beinr. described as " slight ; " that " paralysis " meant a shock of paralysis, and not local paralysis resulting in lame- ness caused by a fall ; and that the warranty that the assured had no " physical infirmity " meant no physical ' infirmity other than the lameness which had been dis- closed (e). kind'' P;"^^^"««^i-^^P"^ are of the following Questions .ut ma.--{i) As to occupation. (2) As to previous ^"^ p™p°««^ accidents (if any) requiring medical or surgicaUttend! ™''- aace, with particulars (if any). (3) As to previous or subsisting assurances against accident. (4) As to refusal to accept proposals or renew policies. (O As ^^^^^omvensB^ any) received for personal injury. (e) Ormckshank v. Xarthern Accident, diu, ^^ See. L. Kep. 134. ^^° ■ THE LAWS OF INSUl{Ax\(.E. Even if this declaration were not made, nor tliesc questions ixsked, most of the information warmntd therein would be requisite under the general principles of insurance law. especially that relating to his physical condition. For certain ailments and accidents diminish a man s control over his movements, and increase his liability to accidental injuries. N^^fghted- Nearsightedness is not a bodily inHrmity within tl ■ meaning of a warranty, in an application for an acci aent policy, that the applicant was not subject to any bodily infirmity (/). - ^ The risk also varies to some extent according to the trade or calling of the insured, and the insurers divide occupations i- to several classes, according to the greater or less liability to accident found on the average to be tnTsir' ^'^^""^^''^ .0" s^ch occupations. The person seekino occupation. insurance is, as has been said, usually asked to sta4 his profession or occupation. If he state it falsely the policy will be void by its terms under the rule in Anderson v. Fitzgerald (g), whether the profession or occupation stated be more or less hazardous than or as hazardous as the real occupation of the assured (A). Description by the assured of himself as an esquiro IS no answer to a question as to profession or occupa- tion (^), but a mere representation that the assured is in that position of life in which people are usually styled esquires (k). Where a man being engaged in trade as an ironmonger calls himself an esquire, and says nothing about the trade, this does not amount to a statement false in fact. At most he has not stated all he might have stated. But this only makes his Ironmonger described as esquire. (o)\^n*Tn ^^^%«"'^ C'asMa% Co., 41 Fed. Hep. 506. [g) 4 H. L. C. 484, r; .Tur. 995. '^ ^ I Feci. Itep. so6. ACCIDiXT. .stalcmcut i„,pcrfect, not unt.uo (0,,u„l tl,„ (;o,n.t wfll ::;s>r °""-'°" '» ^« « »"v'-«"" .t:: Cockburn, (J.J., hovvev.u-, ,li.«ented f,„,„ the dccisio,, ""' '"■""''"■'"1 """ I'y calling l,i„,self „„i„ir„ t , TZ' ..ul conveyed thei,„pro.,.io„ ll,„t ho w,« „„t i„ trade (,").' Many of the questions on accident policies arise a ■, .t M ddheut so to defim the word as *, include the "mueruble nnshaps which happen in the daily course .n "nan hfe ; and it i, often equallv dillicnlt to de i, e .aether a ,n.shap comes within the risk taken ,, t e c.«e,,t.ons „,ade, by the terms of a particular policy I.. Mora Ammkan Lifi ami Accident Co. v. Bvr- m',h (n accident is deti.ed as " an event that t^k es P a« without ones foresight or expectation ; an eve, .luch pri^eeds from an unknown cause, or isTn expected . chance, casualty, contingency." Wliere a policy provided thai " the insurer shall ...v .- o ' • ' Lrr' (a tramway con,,any) the sZ o ii *^ --"^^'■ .spectof any one accident," it was held to mean n e«p ct any single injury to person, or property acc'dentally caused (o). ^ P^^PP't}, In ^m.W.^«..(^), accident was defined as includ-s . . ng violence casualty, and vis ,najor, but not as nc d nfi sunstroke, which the Court classed with i^ f fro.i malaria, exposure to the weatho , &c. It i ' 43 1 (0 Per Wfghtm,.r., J., in same ca.so, 321. ('") 1. 321. ' -^ >* 9S:{.0t^"ss/'^■'• '''• '''"''"' '^''"'^^ ^l^aual A..UU,a v. Ban; if ' I it f ' I * I 4 ll II ju f'. J. y. H 77.9W. K. 342,7 Jur.N^s. "i I^ 4/8. 4 Ja 'J'. N. S. 2 H 482 Aooideut mill ri'Niiliiii^ injury tlixtliint. Itiipture by jumping from traiu. fnjiiry from putting arm out of window TIIK LAWS 01.' 1N8UKANCE. known con9e.,uencc of uiul.ie exposure to tlie full l.eat <>t the sun, and in no way to be classed with tho .,n. toreseen, thou;,'h it operates ah extra. The injury and the aceid.-nt causing it are distinct and must not be confounded. A umn may be acci.' dentally poisoned, and his death in that case results Iron, something unforeseen in the course of naturo which does not operate externally, but the introduction' of which into the system i^ex hypotkeHi a pure accident Jf sucli a case happened, unless death by poison were excepted, the insurers would probably be liable Tlie accident would be the fortuitous reception of th. poison into the body. The injury would be the natural result of the poison when so received, and would thus be the effect of which the accident would be the cause, American decisions go somewhat far in restrictin.- the defimtion of accident, following out the distinction already indicated between the accident and injury ilius It has been held that rupture caused by juii.pii froin a railway train before it had stopped was not I bodily injury effected through violent and accidental means, on the ground that the rupture was the result and not the means, and that the injured man lueant to jump down and did so, and that nothing unforeseen iiappened in jumping down {q). In Kentucky (r) a man who put his arm out of window and got it injured against a post was held disqualified by negligence (.). The true question would be rather whether the act was necessarily con- nected with the travelling, and negligence would have nothing to do with^the matter (0- Putting out the (7) Southard v liailwa,, Pa,se,wers' Assurance, 34 Conn ^7 a • .llorel V. 3hssismpi Valle>, /jfi, 4 Bu«h. (K;.) 535 ^'^ (.9) Kailway Passengers' Assurance Co.'s Ac . 1852 fic & 16 Vict Span;: '^^^' P™"'''* '^'' "^^'"S""- -^^ ^^ >"--d igLfst by ti (0 See Champliny. Hallway Passengers', 6 Lnusme (^ Y ) 71 hold ACCIDENT. 4«3 arm to close a door inadvertently left unfastened l.v -i;;;^o::^: :tn;:r'^i Jti^T " i'^ -''' or he ra i , "'"' "'" """■"'^ '" '""' ""= air wus Kiitu, 111 America, It was held that aclnnl w»'i'«t mnniug .™vem„« .nduded the nece.«ary ..ottin.-L" to '""■""'"'" Kg on a ra, way or brid^o " ,3 uot to bo o„„,trued '™°"- '"' "'""'""' '"«'■"'-». »" »^ to prevent LTCol from crossing a railwiv o< , i iusurea public (..). " ^ " ''^'^'^ I^^^^^^«^ for the Drownifigh an accidental iniiirv r//) wifchh. o v.r providing that no olain. shouId'be'n.i" Tel^'^^j "™-'- »y ".jury unln.,, the .,a«e should be caused byslne «rd and v,.ble means of wbieh satiafaetor/il m\i be supphed to thu directors. *rre a:iS::ta? ::■:,:; 7^1: z '"' '''-' ''-^^ ■-"- . „ ,. ^"J"V f''iail Oe the proximate ami proximate ^ole cause of disability or death " ,7 th. "'^""^ce and ^^„,^ ^^^ 'ieath by drowning that . ' ''''"'"^ '"^"'^ '""'• ausp of rloof^ '^ ^^'^ proximate and sole ^ause of death, no matter what was the cause of falling ;nto the water; unless death would ha^ been he r 3ult without the presence of the water (.) p) Traders and Travellers v. Wank,, ia V^A u o itnta , (-) Maaufacturrra A, M5' p) Traders avd Travellers v. Waole,, 7a Fprl rr « !j]Trew v. /^a^^j^a*/ P. V. Ihrgan, 58 Fed. Rep. 484 THE LAWS OF INSURANCE. i*-- — ■ 5$5 9*»»« SKI -falling ou raiJwav. Sprain. Assured found AVheii a man is found dead in the water, he n,av be presumed to have come to his death by drowiiin". and not by fits. Even if he fell into the water in I fit and got drowned, the insurer would be liable, a> death would be caused by the action of the water mid not by the fit (a). aSr"'" ^^ "" "''^" '""^S'lt have come to his death by acci- euicide. dental drowning or suicide, the presumption will be in favour of accident rather than intention (h). Tf a man is seized with a fit and falls on to a rail- way line on wliich a train is coming, and is so run over, the cause of death will not be^ the fit, but the being run over (c). The assured sprained the muscles of his back in lifting a heavy weight, and was held entitled to recover \ under a proviso that the injury must be due to h material or external cause operating upon the person of the insured (d). IcddSli . "^^^'^^'^ ^^'^ insurers agreed to compensate, if [I.e external aiid insurer should sustain " any bodily injury caused by visible mean.;- violent, accidental, external, and visible means," and the insured broke a ligament in his knee while lie was in the act of stooping, the injury was covered by the policy, the word " external " being construed as opposei! to " internal " (e), A person, however, being insured under a similur policy, was pulling on his stockings, when " he felt something give way in his inside," and soon died. His (a) Whispear v. Accldaital, 6 Q. B. 1). 42, 43 f,. T. 459, 29 W. 11. (b) MaUoryy. Travellers', 47 N. Y. 52, 7 Am. I!q). 410. % ^,«y««5« ^- ^-^ccident Co., 7 (,). 15. I). 216, 50 L. .f. Q. Jj. 522, 29 \V. R. 802 (1881). (d) A^indair v. Maritime Passemjer-s' Insurance Co., 4 L. T. N. S. 15, 30 L. J. Q. B. 77 3 B. & E. 478, 7 Jur. N. S. 367. Marlin v. Trm' lers Co., I F. & F. 505. (e) Jlamh/n v. Crou-ii Accident, dc rrSojV i Q J5 -rrr., G'i I T 701, 62 L. J. Q. B. 409, 41 W. 1{. 531, 9 TimesL. R. 427. 42, 43 f'. T, 459, 29 W. !;. ACCIDENT. .ge tleatli was decided not to be within the terms of the insurance (/). Under an accident policy providing that it " shall not .'xtend to injuries of whicli there is no visible mark on the body of the insured " it has been held that the company is liable in case of accidental death, although there was no visible mark of injury on the body (g)° Tlie assured left a steamer to walk home, and while roiicy against so dumg was injured by an accident from which he died, acddeafwhiist Tlie Supreme Court of the United States held that his t'^^vomn^ own legs were not a conveyance, public or private, within the meaning of a policy against death by accident whilst travelling by public or jnuvate conveyance (h). And an accident policy insuring a person named •as a passenger in a public conveyance provided by a luinmon carrier " has beeu decided not to cover injuries received by him after he had alighted from a railway train on" which he had beeu a passenger, and had returned to it for a purpose haviug no connection with liis journey (i). In America, death caused by rupture of a blood- Exercise with vessel while exercising with Indian clubs is not acci- oi'hiooA^^''"' dental death if the clubs were used in the ordinary way, ^e^seT ' and no unforeseen accident, unusual ch-cumstance, or involuntary movement of the body occurred which in connection with the movement of the body brought about the injury (k). ° If death is due to intlammation or abscesses on the nuptnreof lungs, consequent upon the rupture of a blood-vessel JilflaJm':^-''' I'y over-exertion, such rupture will be held the proxi- "" lungs'"*"" on (,/■) CUdero V. Scottish Accident, dc, 29 Sco. L. 11. ^o? V J^ggenberyerv. Gaarantce, d;c., 41 Fed. Itei-. ^•^- 172. CO Jiipley V. Jnsurance Co., 16 Wall. (U. H.) 226 (;i ^endnck v. Mnplouers, dr., 62 Fed. liep. U. S. Sgi. '■, P."dq6 " " "'^*""'' ' ^ ^''"'- i^- Ct. L. S.; 302, U. .s. Di. .\S82, p. 496. 486 Death nniht be caused Solely by accident" to entitle assured. Effects of injury caused by accident. THE LAWS OF INSURANCE. mate cause of death and the death accidental, unless mdependent lung disease su,ervened before the i-upt o nVture (""' "" '""^"'^ "^^ ''''^^'y '^^ ^''^■' It is usually stipulated that death must be cau.s.d solely by accident to entitle the representatives of tlie assured to recover under the policy. If death is caused ^ntlTT^'^V" I '^"''"^ ^"^^ unintentional blow n the stomach, this has been in America held to bo death by accident (.O- So also in the case of herni due to an accidental fall (n). from"" tll!''!f/^r "T"'^ ""^'^ " ^'^''y ^g'-^^^^t ^'^'^^'' trom he effects of injury caused by accident," fell and dislocated his shoulder, and eventually died fron, pneumonia, caused by cold to which he had been rendered unusually susceptible by the accident, it was held that the death was due to " the effects of iniurv caused by accident," the terms of the insurance ineani„; that the injury must be immediately caused by ihc accident, but that deatli need not be immediately caused by the injury. But in an American case it was beld that the insurers are not liable when death results from Z::tr '"''' '' '"' ^^"'^^ -''' ^^^^--^'^^'"^ But where erysipelas supervened upon a wound, the tath that followed was considered to be the result of he disease rather than of the wound, and it was held that the insurers were not liable (p) under the specia' erms of their policy. Gangrene from a cut has been held an accident within the meaning of a policy against \o J n: y'r''^"'^:^ ''''"'' '7 ^- S- ^- «• i-f 34 1 . <■;•:.«, 37 W if ];,,'' f'r^ J^Y''"' ''•'•■' 22 Q. B. D. 504, 60 r,. T. 297, U. S.) 362, U. N. Dig. ACCIDENT. ^ <. ^ accident (q). But death by dislodgiaent of a gall.Hone consequent on a fall has been held not witliin a policy agamst death by accident (r). ' Death under surgeons' or physicians' hand is ex- Death under cepted in most, if not all, accident policies. In America '^''*'""''*' '"'"'^'^■ it has been held that deatli caused by taking accident- ally an overdose of opium, a proper dose havinrr been prescribed, is within this exception (.s). Tiiese policies usually contain a clause to the follow- i'«„ai ing ettect : " but it does not insure against death or dis- "*'^.7"^" '"^ ability arising from rheumatism, gout, hernia, erysipelas ^^^' or any other disease or secondary cause arising withiii the system, before, or at the time of, or foUo^vin- such accidental injury, whether causing such death ov dis- ability directly or jointly with such accidental injury " In tiie case of Smith v. Accidental Death Compa„>j which has just been cited, the Court of Exchequer lied (Kelly, C.B, dissenting), in construing such a policy that erysipelas resulting from, and caused solely aud exclusively by, an accidental injury in the foot k the insured came expressly within this exception, and that therefore the insurers were not liable on the policy. But vvhere hernia caused solely by external violence ifemia - was tollowed immediately by a surgical operation "i"^'**'^"- which was intended to relieve the patient, but caused deatli, the Common Pleas held that such a case did not come within the exception (0, and therefore tli-^ insurers were liable. A provision in an accident policy, that the risk Fainting shall not extend to death caused by bodily infirmities or disease, does not include fainting produced by X. 302, 39 L. ,r, E.v. 2r;. j^j Waller v. iXortheru, dr., Co., Time,, Ja... 26, 1S87. ^rt'^ ""i A«/'o««Z Ewployers Co., i Tinus I. R l«) ijoe May Ins. (isted.) 784. {t)l<'ittun v.. Accidevtal Ihtith Co., 17 ('. 1?. N. y iscua.-ed in previously cited case. ' 4d 255- 122, j4L. J. ( . p. 488 Overdose of ttiedicino by EaiNtHke. Poisou or intentional self-injury. Driving iu vehit'le. Own negli- TIIE LAWS OF IXSUKANCE. indigestion, luck of proper food, or any other cau.e winch would show a mere ternpo'-ary disturbance ur enfeehlement (n). Death from an overdose of medicine by mistake IS withm a policy against death by accident "ron- ditioned to be void if lie die by his own hand or act voluntary or otherwise." the aim of the condition bei.,. merely to cover the varieties of suicidal self-destrup' tion {..). Taking an overdose of laudanum to reliov. pain IS not within such clause (y). Where, however, tliere was in the policv a proviso that the insurance should not extend to' death k certain specific means, or " by poison or intentional selt-injury, ' and the insured drank some poison m mistake for medicine which he was in the habit of taking, and died, his representatives could not recover under the policy (*■). Driving the assured out in a vehicle is not a volun- tary exposure to an obvious risk (a). gence covered • ^lie consequences of a man's own negligence luav be by policy. insured against, and are insured against unless expressly excepted. Where the policy required that the assured should use due diligence, and he stood on a joist on the second tioor of a building which was being erected for hini and It broke, and he fell and was killed ; in America this hns been held no want of due diligence (b). Consequences of wilful exposure to unnecessary Standing on joist wliicli broke. Anhhnt l,nhmn!tii Co. v. Jhrgan, 58 Vn. H.p^ 204^^ ^^' .//) Mutncd Life Co. r. Lfntrence, 8 Illinois (Ann.) 488. \i ^V vr -'^'-''■"'r'''.^-" 61 I'. T. 227, 5 Ti.nes L. li. 736. L. J. Lx. 266, 27 do. 16, 29 L. T. 98, 5 W. K. 567. ^' (b) iitoney. i\ N Casualty ('v., 34 V y 371 ACCIDENT. 489 medicine by mistake th by accident "con- liis own liand or act of the condition beiiij,- suicidal self-destruo- laudanum to reliovc danger, or peril, are by some policies excepted from the risk. And a stipulation that the insurer shall not be Obvious risk liable m case of " the exposure of the insured to obvious risk of injury," will exempt the insurer from liability, where the risk would have been obvious to the insured if he had been paying reasonable attention to what he was doing co- in this case the insured had crossed a main line, waiting for one train to pass, and was recrossing, when a second train killed him. There was no crossing at the place and nothing to obstruct the view. Where an engine-driver slipped, fell, and was killed FataUaii by wlnle going into the tender to put on the brake wliich «°fj?«-driver is the stoker's business, he was held not to have been b™'''"^ ""^ needlessly exposing himself {d) . A signalman, being insured for £1 per week, " in case of his being incapacitated from employment by reason of accident sustained in the discharge of his duty," tried to stop a train, one of the carriages of which was broken; lie thus received a shock which incapacitated him : and his claim against the insurers was allowed (c). In America the Courts have gone so far as to hold Attempting to that an attempt to get into a railway carriaf^e whilst "''"'°' '=*''"*^® in slow motion is not wilful and wanton self-exposure ''^ """°"' to unnecessary danger (/). Assured took a ticket from ure to unnecessary ■ A. to J). ; when the train reached B. he got out, and -^ m the signal was given for it to proceed to C, and the 0. V. Dorgan. 58 i'V.i. Ke,,,, ■ tram Jiad begun to move. Assured then attempted to (.J ron«^A V. ^c«rfe«^.Cr.. 23 Q. B. 1). 453. 5L L. .). (j. ]>. 59,, js w. K. 1^9, 5 Times L. K. 733. ^■' ('0 rrovulence Life v. Martin, 32 Maryland 310. \J) 'nuultr V. Pi-ocideut Life, 24 Wise. 28. 490 Jumpitig on omnious in raotiou. P.i8bicg from car to cai- exposure to utiiieivssary dauger. Stiu.diii;j;' on platform voluntary cxpi'&ure. THE LAWS OF INSURANCE. get in whilst the train was in motion, and was killed It was held natural and prudent for a man who wan and that the insurers were therefore liable 0,). An assm-ed who jumped on the stop of an om;^bu. i motion, mtendnjg to travel by it, fell, and was injured and he was held entitled to recover on a policy against' acc^„^^^ A policy of insurance against death or injury issued loy a railway passenger assurance company provided.- (1) No claim for insurance .hal^ be made whe„ deat.i or injury may have happened in consenuence <,t voluntary exposure to unnecessary danger, hazard oi perilous adventure (I). This means wanton or .ros'sly imprudent exposure (/;). "^ ' •' (2) Standing, riding, or being upon txie platforia of moving railway coaches, or entering or attemptiix- to enter, leaving or attempting to leave, any public con- veyance, having steam as a motive power, while the same is m motion, are hazards not contemplated bv the contract. This condition (2) will not include mere passino from one. part to another of a train through which a passage was possible and contemplated, but such passing IS exposure to unnecessary danger within con- dition (i) it it be done at night (/). But it has been decided that a passenger who «oe< out on to the platform when the traui is in motion^e- cause he is overcome by the heat of the car, or is {1} Burk hard v Tmnplhrs' r,, .v a iV*' ^ ' ' • incident, d:c.,mi>ra. " ^^ ^""^ ^^^l^" ^OS- ('ornish ,. (k) Manufacturer^ .U v. Dor;iau, 58 Fed. liep U S o.: ACCIDENT. 491 suffering from nausea, does not voluntarily expose him- self to unnecessary danger within the meaning of an accident policy (m). Where insurance is effected against an accident Meaning of wholly disablmg the assured, the necessary condition 1>'|^;"-; for compensation thereunder is proof that an accident ' has so far disabled the assured that he can no longer follow his occupation, business, and pursuits in the manner in which he usually carried it or them on before (n). It is not necessary to prove that the assured cannot do any part of his business. Tiie American policies, to avoid these questions, seem to insert total disability from all business. Iri England, loss of both eyes, or of both legs, or of both arms, or of one of each, are by certain accident insur- ance coinpanies treated as total disability; and in complete los, a case where the insured, when he signed the proposal "^ ^'s^^- liad lost the sight of one eye, of which the company's agent was aware, and the insured afterwards accident- ally lost the sight of the other eye, he recovered as for complete loss of sight (0). Notice of an accident must be given as stipulated what notic. in the policy, usually to the head ottice, within fifteen 'f ^^ ?i^®" days of its occurrence (p), even when the assured is " " " killed instantaneously (q). But unless this notice is made a condition precedent to liability under the policy the Courts will not hold delay fatal to all claim, but merely visit the claimant with the costs (if any) occa- sioned by delay (r). (.'«) lUarx V. Travellern; it;-., 39 I'ed. Ron. ['. S. -21 (») Hooper V. Accidental Death. Co., -? I; T N S ->2 s If ^. V ^-, 5\f'&Vs46.'^^^' ^'^"'■- ''^- '^^ 74; «aruo'oa;e;i,e'rWikit;j!.?l' (0) Bawden v. London, Edinhiirqli, dc. (1802) 2 O R e .^ 61 L. J. Q. B. 792, 8 Times L. II 566. ^ '' ''' ^34. (jP) Gamble v. Accident Ins. Co., 4 I. li. (^ L 204 lit ^}-^""' ^- ^^»^^'?.y«r*'' J/uMit,/ Co., 20 L. R. ir. 93. C„,,el v [fmwhire and Yorkshire Co., i Times J., li. 49c. (Jawle^ The ^a tonal E. A. <& G. Assn., Ltd., i Times f. R. 25s \r)k)tQneham v. Ocean. Co., 19 Q. B. ]). 217- ;i I, T X s ^-r j5 W. ii. 716, 3 Times L. R. 695. " ' ' ' ' ~^ ' *-w-'- -S 492 THE LAWS OF INSUKANCE. An.l whero a policy against accident was mad. subject to a condition that, in the event of any accident to the assured, he or Ids representatives sliould .jve . notice thereof in writing to the company within 'ten clays after its occurrence, and that unless the condition .^rtdU. ^^^^!'^ ^-"Plied with no person should be entitled Z chum under tlie contract, it was l,eld that notice must be given within the ,,rescribed time, even of instan- taneous death, and that such notice might be given bv ' any person appointed by the assured for the purpose (I or even by any person acting on behalf of the pers n interested m the policy (V). Wll.TO accitleiit eventually reBults iu* death, and Weekly pay- ments made, balance after deductingtheui in payable. Where an accident luippens disabling for some tinie, and finally resulting in death within the period men- tioned m the policy, only the balance remaining due on the policy after paying the weekly allowances for the period of survival after the accident will, it seems, b. Death must fnsuc within .s];t'in'lent {u). J>roof must be given of the death to satisfy ii.r, which ought to satisfy) the directors (x), and the claim is usually made payable within one month after •such satisfactory proof. Evidence on which the Court may deem a tenant for life to be dead is not neces- sarily satisfactory proof of his death to an insurance company with whom his life was insured (y), but wliere the assured had disappeared and not been seen a m!i:i:;MS;!;:^7' ^^-^'^''^ ''--•-- Corporation, sa,,.. jJl^ a^^:: '-/^'i^ ' '^^- \'^'>' P«'- ^Villos, J. Perry v. J'roadn, •t\ ^?'^^f^- ?P-- -^"'"'^ V. .^'ume, 103 Mass. 242. 3^:^28 w'n. gf""^"' '■ '•^^"'•"^^^' 5^PP- <•-• 916, 43 L. T. N. S. 3.^!'.'^^;^. ''^ ^ ^'^«^^-^' ^■'■■' ' -' 53 1^. J. (^b. 527, so L. T. 32, CK Corporation, sajiirtt. J. (.'b. 527,50^1.323 ACCIDENT. 4Qj or heard of for seven years, his death was pre- sumed {z). Allowance for disablement is usually limited to Allowance for twenty-six weeks for any one accident and in respect ^Zn^'Z'' uf any one year's premium. weeks. Where an accident policy insures against two True construe classes of injuries, namely, those which occasion loss Iccjdont of life within a certain period, and those which shall not P''"''^'- be fatal, and contracts to pay in the former case an agreed lump sum at death, and in the latter case certain sum per week, the two provisions are to be construed together, and the evident intent is that if ail injury happens within the meaning of the policy it is insured against as coming within one class or the other. If it were otherwise construed, an injury which should not prove fatal within the specified time would furnish no ground of action till it should be made to appear that it would never prove fatal. This would render the insurance nugatory in such cases («). A policy runs for fifteen days after the renewal premiums become due, and the insurers are liable for that period. But, unlike life policies, accident policies may be discontinued, and, if notice to do so be given before the end of the year, the assured will not be entitled to the days of grace any more than in fire policies (/>). If the policy requires tliat such proof of the acci- Proof of dent alleged as ground of claim shall be given as tlie ^atSy"' '" directors shall deem necessary to establish the claim, '''"-'ctord. it will be construed as demanding what they shall reasonably deem necessary (c). t i I (:) Wilhiams and othera \ . /Scottish Widotis' Fund, Law Assurance wckty, 4 Times L. K, 489. (a) Perrii v. Provident Life, 99 Jla.ss. 162. limic \,Hame,\oi Mass. 243. [h] See Salvin v. James, 6 East, 571. (c) Braunatein v. Accidental Death, 31 L. J. Q. r>. 17,5 L. T. N S. 550, I B. & S. 782, 8 Jur. N. S. 506. See Manby v. Oreshani Life 4 L. T. N. S. 347, 9 W. K. ■;47, 31 L. J. Cli. o^, 20 Beav. 430, 7 .I'ur. -N. S. 383. fl 494 Pogt-morter.i examiiittt'" /ii condltini precedent. ii|l :|;1( Employers' liability. Insurers may exclude risk arising from change of trade. THE LAWS OF I\SUBANCE. Where a policy provided that '« iu case of (^eath '\, egal represencatives of the deceased must deliver"to the compaDy a certificate from the medical attendant of the insured stating the cause of death, and furnish all such other information and evidence as the directors may require or consider necessary or proper to eluci: elate the case." the insurers Imv.ng applied t<, the family physician for a post-mortem examination which on Ins own authority he refused, the plaintiff was adjudged entitled to recover, the demand of a post mortem not having been made to the personal repre- sentatives of the deceased; and (per Lord Young) the company could not plead the refusal of a post-mortem If on the whole evidence t appeared that the deceastl died from accident (d). Employers of labour are by statute (e) made liable formjunes of certain kinds to those ..horn they employ and m respect of eaoh and all such liabilities they ha;.' im insurable interest. The Railway Passengers' Assurance Co. has by a private Act (/) taken special powers to insure employers agamst their liability under the E.nployers' Liability Act 1 880, and other companies have been constitute^! lor the same purpose under the Companies Acts. Insurers against employees' liability require to know the nature of the business in which the liability is to be incurred, the number of persons employed, the mode ot conducting the business, and the amount of wages paid (on which the premiums are calculated). Apart from the circumstances of the particular case and any statutory provisions to the contrary, the in- ^^(./) SaUa^inc v. The E.nphyers^ Assurance Co., 3. S.o. L. Ik.p. ("7^4 1 45 vlct t^,.^!,-"'' '^ "'"'' '"*° °P"«*'"» March 31, 1S98. 495 ACCIDENT. ^iircrs are not bound to take the risks of a change in the trade, or the mode of conilucting it, and call by apt words exchide such risk. It may be observed that this form of insurance, Contract of though on human life, is merely a contract of indemnity '"•'«'°"'*y- iij,'iunst a legal liability. The employer will be obliged to defend an action Employ., by the workman if the insurer requires, and if he dues "reSuted by so on the request of the insurer, or otherwise reasonably, "'^"'■e'" ^'^ k will be entitled to recover all the cost which such '^'^ *°' defence has put him to, as in the case of re-insurance (^). I5ut paying without liability will not entitle the em- player to indemnity unless the insurers advised payment. And the liability, to be enforceable against the insurers, iiiiist be not only one which falls on the employer within tlie statutes (otherwise the employer would luive no insurable interest), but also within the policy. Thus,inAConsequence of the different interpretation put by English (A) and Scotch (i) Courts on the words "Manual "manual labour" in the statute, which applies to both i?^?''." , «.'/7\ctj.L M i^nglisti and tijimtries {/c), a bcotch omnibus-owuer has both liability ^^^''^^ opmion to and insurable interest in his conductors, whereas *^'^^''^^''*- nil English owner has neither. ((/) *S'upr«, pp. 245 "^^ •'•'*7- (A) Morgan v. Loiidun General Omnibus Co., 12 Q. li D 201 (0 Wilsom \ Glasgow Tramway Co., 5 C. S. C. (5tU Series) 981. ('.) 4? & 44 Vict. c. 42, s. 6 (3). we Co., 31 Si;o. I. Ik'p. m :f 'i i' i i : IUHfltii«iim«im ■ - IMli ?*•■■ Jill c:3 g»5 ( 496 ) WritiDfy requisite. Not limited to fraud. CoLcealtctnt, CHAl'TKIJ XXVI. (rUARANTEK INSURANCE. CEUi'.uN companies have been establishod in tin. country for undertaking the risks of suretyship fo, . pecuniary consideration. Their ntethod of dealin, i; based on, and closely resembles, that of the ordina.v insurance con^panies, and their bonds of suretyshi aie often termed policies. ' A contract of guarantee by the Statute of Frau,|s ht debt, default, or miscarriage of another person 00 and It being also a promise to be answerable for a del' fn;/7n "' ''"" '^''^y ^y ^^'^^ other perso, towards tlie promisee (i). ^ Where a bank manager allows overdrafts without security and loss is occasioned thereby, this has in Lower Canada been held an irregularity within t!,e mcamngo a guarantee policy "against loss by ti.e want of integrity, honesty, or fidelity, or by the neoli- gence, defaults, or irregularities of the manager" "(.) In the particular case the manager concealed the o^•e^ dratts by fictitious returns, and acted improperly in concert with the persons allowed to overdraw (d). The ordinary rule of insurance law, that allmatenal nM.fT"^:- '^'"'"'^ '' •'• "" ^'- «8- Hargreaves v. Parm, Jc) na„h- of Toronio v. l':nroi,euu Assurance Society, 14 Lr.C'an..kr, («/) See also By me v. J/»-/o, S L. 1!, Ir, ,96. SU RANGE. law, that all material OUAKANTKK INSUllANCE. chdun8tancr3 known to the assured must bo .lisclosed dm..s not apply in the case of guarantee policies (c). The concenhuont to avoid the contract of guarantee m..st be traudulHnt, for such policies come within the liiw of suretyship, and not of insurance. A contract to guarantee a man from loss by a certain Duty of mi^biiii does not entitle the employer to run up an "'""'"^^ embezzlement bill against the surety. and keep disiionest servants at another man's risk, when once he knows or rensonably suspects their dislionesty (/). Nor may he alter the terms of the employment, if the policy was ^'ranted on th. faith of them (g), otiierwise he may (A). Consequently, it would see.u that on default, and Notice of notice .thereof, the insurer would at any rate have the '^''''"''• option to terminate the guarantee, and a right in equity to be discharged if the employer keeps on the employ^ after discovery of his defaults, for one of the surety's rights on payment would be to insist on the dischar'^e n the employ^ (i). " The default, &c., of which notice must be given, is 1 would seem, only sucli default, &c., as will found a claim on the guarantors (Ic). But this is a mere ques- tion of the construction of the particular instrument. The guarantor company can require dismissal for Eight to iiisconduct if the person guaranteed has the power to '^''°i'««''^ °^ |io so, which in guarantees of rate collectors an!l the like "' '^'• ■s not tilways possible, for a guarantee may be -iven to a collector-general, or the guardians of the poor, while "le power to dismiss is vested in another person or 497 5i h .^mdersmi v. Aston, L. R. 8 Ex. 73 ^ '^- i^^- 261. 2 I 498 Assured must comply with conditions. Embezzle- ment. Contents of guarantee policies. THE LAWS OF INSURANCE. body like the Treasury or Local Government Board or Board of Trade (I). Non-exercise of a power to sus- pend the employed vested in the holder of the policy will not avoid it (m). The assured must observe the conditions upon which the contract of insurance was entered into : for ex- ample, where an insurance company guaranteed em- ployers against embezzlement by a servant, and in the proposal which formed the basis of the contract the employers stated that they would observe certain speci- fied checks in settling their accounts, they neglected to do this, though acting in good faith, and failed to re- cover under the guarantee (n). Guarantee policies contain provisions as follows :- 1. That the employer shall give notice of any de- fault or defalcation by the employed. 2. To forward any claim made in respect of the pohcy within a limited time. 3- A proviso that the company shall be entitled at the employer's expense to call for reasonable particulars and proofs of the correctness of the claim, and verifi- cation thereof by statutory declaration. 4 That only one claim may be made under a policy, and that only in respect of defaults, &c., committed within a month of the receipt of the notice (o). 5. That the policy is granted only on condition that the business of the employer, and the duties and 8 tn^r'il'mtT'"' ^ ^^' ^" ^'■" '^'^- ^^'"'^^"'•^ ^'"■''» ^- O'mh Ti}^\^l"%*)^; .f ^''f f*'^"'"^ Accident Assurance Assoc, 28 Sco. L Kep 394. Sulphite Fulp Co. v. Faher, 11 Times L. R. 547. c\^t.t/T ""'^ P"''*''? '^"^"^'' ""'^^^y f-""" fi'-e policies, where a dozen ciaiffis, a tney arise, can be made. visions as follows:— ie in respect of the GUARANTEE INSURANCE. salary of the employ^, shall remain exactly as stated in the particulars of proposal. faces' t?rlf/'t'' T'"" "^ ""^'^'"S "^"^^"g '^' ^^^^^^1 acts to d ffer from the particular statements made shall be given to the insurers, and consent to the chanae be given by indorsement, the policy will be void. " 7. That the employer shall, if required, aid (at the company's expense if a conviction be obtained) in prosecuting the employe to conviction, and at the ZZZT^""""" ^'' '" information and assistance enable the company to sue for and obtain the reim- bursement^ by the employed, or his estate, of any moneys which the company shall have become liable to pay. '■^<^yjw to be d<,ne preliminary to the completion of the Drool "•■"■•"P"'- atisteory to the directors, from which completion oP'X" proof tl* time of payment is to run, they are ore cedent. But those relating to matters to be done aC W^nt are not and cannot be conditions precedent. The condition as to prosecution being a means of prov- " »adV*" "'"'" " '°" " '""'™'' " °^" "^ But a condition that the employer shall crive assist Z ir"'] ^^ """P^"^ '° "^'^^ ..imCsernt" «h employed cannot be precedent to the obliga- ■on of he company to pay, since the company cannot teentit ed to reimbursement until it has either S Mome liable to pay {(/). ' And w,,ere a policy for ^,oo provided that any * y or commissun, which but for the acts of em- blement would become payable to the en.ptjor (W feame case. ' ■^^^' 499 5°^ THE LAAVS OF INSURANCE. any other money due to him, shall be deducted from the amount payable under the policy, and that all moneys of the evi2)loy^ coming into the employers' hands after the discovery shall be applied by the employer in making good the amount of his claim under the policy, in priority to. any person claiming upon such money, and the employ^ had embezzled .■^150, Grantham, J., held : (i) That amounts crcJited to the employ^ should be deducted from the /150 embezzled, and not from the ;{^.oo the amount of the policy. (2) The ^100 must be paid first. (3) Plain- tiffs must hold what was found to be due to the employe \ from the society (which was in liquidation) for the defendants in reduction of the ^100 {r). In a guarantee insurance, as the obligation of the surety is continuing, the obligation of the creditor or , employer is also continuing, and any representation and understanding as to the trustworthiness of the employe on which the contract was originally founded, continues till its termination (s). glTrdkns'of' "^°^ ^^ ^.^^ guarantee be given to the guardians of poor. the poor will the guarantee company be exempt froni liability on account of the negligence of the overseers in calling the collector to account {t). UoTalto mode . ^ statement by the employer as to the mode and of keeping tinies of examining the accounts of the principal or person employed amounts to a representation of the course of business intended to be pursued, and must be so complied with {u), and the practice of examination must continue as stated, or any change must be notified and assented co, or waived, by the guarantee society, accounts. (r) The t^th Liuerpool Starr Bowlcett Bhh,. Hoc. v. The Travellers' Insur. Soc, 9 Times T,. R., 221. (s) Smith y. Jlank of Scotland, i Dow 272-292. /'hilb'ps v. Fo.vah. L. B. 7 Q. B. 666. ^ (t) Guardians Mansfield Union v, Wriqkt, 9 Q. B D 683 (m) Jicnham v. United Guarantee, 7 Ex. 744. 16 .Tur. 601. ar L. J. Ex. 317. GUARANTEE INSURANCE. 50 1 If a material change is made witliout the assent of the society, the policy will be invalidated (x). The liability of tlie guarantors will be for all defaults of tlie employe within the period for which the guarantee is given, whether found out within the year or after its expiration, unless limited by apt words to defaults committed and discovered within the year (y). Guarantee policies are usually made for a tei-m of one or more years. It is sometimes stipulated that unless notice to terminate be given, the policy shall be treated as a renewal contract of like nature and con- Renewal of ditions (z). The effect of this is merely to continue the "o''*'"*''*- contract for a second term. At the end of that term, if no notice to continue is given, or otlier arrangement made, the policy drops. Alterations in the rules of AiteratioEs in the company, on the faith of whicli the assured took the ruX^^'not guarantee (a), will not, however, have the eh'ect of terminate con- determining such a renewed contract if no notice to *™*'** terminate has been given by either party (h), and the insurers will be entitled to the renewal premium. Amalgamation with another company will not affect Amaigama- the validity of the renewal, wliether it be within the *'"''• powers of the company or not (c). Where one of the conditions indorsed was that all guarantees, whatever might be the original term, sliould from the expiration of such original term be treated as a renewed contract of the like nature and conditions, unless either the member interested therein or the (j;) Towle v. National (hiardian, 30 L. .1. Cli. 900, 7 Jur. N. S. iioo, 5 J.. T. N. «. 193, 10 W. R. 49, reveivsiiig 9 W. R. 649. (y) Fanning /■. Lomlun Guaraiitct- Co., 10 Victoria I;. R. 8. (s) tSolrency Mutual Guarantee Co. v. Froanc, 7 li. it M. 5, 21 L. J Ex. 139. (a) ISolvenci) Mutual Guarantee v. Freeman, 7 il. & N. 17. (b) dolreuci/ Mutual Guarantee v. Vor/:, 3 H. & N. 588, 27 L..T. Ex, 487. (c) King v. Araunulatim JJfe, 3 C. 15. N. S. ii;i. 6 W. R. 12. ^oL, T. iUj y, 27L. J. C. r. 57, 3 J ur, In. s. 1264. ■.it.. 1^ 502 TliE LAWS OF INSUKANCE. board of directors, sliould give two calendar montlis' notice of an intention not to renew the same, it was Hold that the renewed contract was not itself to be deemed to contain this particular condition as to renewal, and that therefore, even in the absence of notice, the contract did not extend beyond one renewal iHoneTewai. '^ ^'^'^^wal is one renewed Contract (^O- ReMromeutof (J„a,antees on gross annual returns (.), iloating risks or rent, are sometimes granted. When they are made to a partnership with a provision that the guiirantee shall cease on death or retirement from business of any member, tiie retirement of a partner will avoid the guarantee, and the company cannot ic seems, aHirm it and sue for the premium (r) partner from guaranteed firm. Subrogation of company. Insurance of money deposited or invested, in default of payment. Nature of default. A guarantee company issuing these policies is as a surety entitled to all the ways and means of the person guaranteed against the ])rincipal debtor (/). The plaintiff, having deposited with an Australian iJank a sum of money, effected an insurance with tiie defendant corporation, whereby the corporation cou- tracted to pay the plaintiff if the bank made default lire bank faded to pay, and, under a Colonial statute, entered into a scheme of arrangement with its creditors whereby they were bound to accept certain statntorv provisions in satisfaction of their claims; the plaintiff having brought an action on his policy, was held entitled to recover, the defendants being subroga,ted to lus rights under the deed of arrangement (g). Also where the holder of a debenture effected an insurance' guaranteeing to him the due payment of the debenture If default were made in payment of any principal id) Solvenqi Mutual dr. v.7'Vo«»e, 31 L.J.N.S. Kx lo? 7l[ &\ c (e) i,ol„cHcy Mutual Guarantee v. Freeman, 7 R kS n ^' (/) Mercantile J.aw Amendment Act 70 I T x' "rJ^i'^'T^n ^;f' "•««'■« (Corporation (1894), I Q- «• 54, VaZ'rl^'P, •/ ' • !•• ^- V^4- 42 AV. d. 227, lo Times L. E. 86 S sTieo- lX 3°9'"'"'^- ''■ 56'- f^c.!>-d..Secunt!e. Insurance GUAUANTEE IN.SUUAXCE. money due under it, and subsequently by special resolution of debenture holders the date of payment was postponed, it was held that the contract was one of insurance against default in paying money due under the debenture and that the plaintiff was entitled to recover the amount of the policy from the defendants, who were entitled to be subrogated to the plaintiffs rights as modified by tlie special resolution (k). Liquidators imder the Companies Acts may give, in Liquidator lieu of the two sureties usually required, the guarantee """^ "^"c^'^* of any society established by charter or Act of Parlia- ment ('i). iicceivers in the Court of Chancery have been, after some difference of opinion and practice, allowed to do the same (/.;). Xo case on the point seems to have occurred in the gueeu's ]iench Division, and the new Rules (/) pre- scribe that unless otherwise ordered the person to be appointed receiver shall first give security to be allowed by the Court or a judge ; such security to be by recog- nisance in the Form No. 2 i in Appendix L., unless otherwise ordered. But there is little reason to doubt that the Chancery Adminie- prcactice would be followed in the whole of the Ilish V**"'',^"'- ^, , . , o (Icnte Me. lourt, and in the Probate Division an administrator imdmtc lite who is a mere receiver has been allowed to offer this form of security, on the Court being satisfied that the bond proposed was in accordance with the rules prescribed by the constitution of the society. The security is certainly better than that of a private person (/m). (.'0 Finlau V. Me.ncun [nvestmeut Corporation (1897). i Q. B. 517, 66 L. J. Q. B. 151, 13 Times L. K. 63. roung v. Trustee Assets, d;c., '0., 31 Sco. L. Hep. 199. (i) Companies Act, 1862, Geueriil Hule r [k] Colmore v. North, 27 L. T. N. S. 405, 42 L. J. Ch. 4, 21 W. R. 43. Manners v. Furze, 11 Beav. 30. (0 Ord. 1. r. 16. [in) Curpcnter V. Queen's Prortnr, "7 P. D 21c ei L -T p.-^K 01 401. T. 821, 31 W. K. 108. ' ■ ■' SO3 If ( 504 ) ^^». ST* '2** m CHAPTEE XXVII. BANKRUPTCY. a^Snmenr' ^''^^'^ ^° ^^'^ Bankruptcy Act, 1869, where the assured have been affected to assign a policy of life assurance for valuable daim if '*''^^''* consideration, the assignee for value would not have a SuptJ.? Sood title as against the assignee in bankruptcy, unless he had given notice of the assignment to the insurance office, as the policy would in the absence of such notice be deemed to be in the order and disposition of the bankrupt, and pass to the assignee in bankruptcy ^ accordingly, under the order and disposition clause of the statute (a), nor would the giving of notice be ren- dered unnecessary by the practice of the particular office not to take notice of assignments (h), and the notice must have been actual and not merely con- structive (c). Now, however, it is not necessary for the assignee for value of a policy of life assurance to give notice to the office in order to prevent the policy passing to the trustee in bankruptcy ; because policies of assurance, being choses in action, are excepted from the operation of the order and disposition clause of the Bankruptcy Act, 1869 (d), and also from the like section of the Bankruptcy Act, 1883 (e). Can claims arising out of Under the older Bankrupt Laws, demands payable (a) Williams v. Thorp, 2 Sim, 263. (b) West V. Beid, 2 lla, 249. (c) Thompson v. /6>'Vfv, 13 Sim. 469. {d) Bankruptcy Acv. 1869, s. 15. snb-s. 5. Ex parte Ibhetmn, 8 Cli. l'^i m' fi' ^^ ^'^' ^' ^'^^' ^^ ^^''*® ■^""'^' ^" ^- ^7 ^"^^ "^ (e) 46 & 47 Virt . •:;. 52, s. 44, 8ub-s. 3. BANKRUPTCV. 505 ws, demands payable on a contingency could not be proved against the insurance bo estate of the bankrupt, and this risk was held to apply EITrSptey? to money assured by a policy of insurance ; but a pro- vision was inserted in the Bankruptcy Act, 1849, s. 174, enabling the assured in a policy of insurance to make a claim, and after the loss or contingency hap- pened to prove and receive dividends, in like manner as if it had happened before the bankruptcy. Proof in a similar case would now have to be made under s. 31 of the Bankruptcy Act, 1869, the corresponding section in the Bankruptcy Act, 1883, being s. 37. Proof for unpaid premiums must be made under Proof for s. 31 of the Bankruptcy Act, 1869, or under s. 37 of premLms. the Bankruptcy Act, 1883. Where policies were settled, proof by the trustees Proof by after payment of the moneys assured was allowed "'"'*^^'- against the settlor's estate, for the premiums which the trustees had paid out of a fund provided for that pur- pose in case of the settlor's default to pay them (/). A holder of a policy of iiisurance in an insurance Proof against company which was being wound up was held entitled Xnd'C'"^ to prove for the sum which would be required to be paid to a similar solvent insurance company in order to give the policy-holder a policy for the same amount and under i;he same conditions {g). A secured creditor may assess the value of his secu- Rights of rities, and vote and prove in respect of the balance c'"«<''*°/5 . 1 . , •, ^ uu-itiiio^:;, assured having ana is bound to pay over to the trustee the amount * security on which the security shall produce beyond the amount Sse^cf"^ ^"^ of such assessed value, and the trustee may at any ''*'^"P*°y- time before realization of the security by the creditor, -, ^Q p^oY'^'^''' ^^ P"^'*^ Woodloj, 37 L. T. N. S. 38, 6 Ch. D. 790, 25 "• -Iv. 081. ((/) Ke Albert Life Assurance Co,j L. H. 9 Eq. 707. 506 5« Si! Proof not admitted for value of covenant to pay premiums. THE LAWS OF INSURANCE. redeem the security upon payment of the assessed value. If the security prove to be more valuable than the amount at which it has been assessed, the trustee may either redeem it upon payment of such assessed value, or he may claim whatever surplus the security may produce over such assessed value. The proof of the creditor, however, cannot be in- creased in the event of the security realizing a less sum than the value at which the creditor assessed it (A). It would seem, therefore, that if a creditor has taken as security a policy of assurance, his most prudent course will be to realize it, otherwise, should it increase in value during the bankruptcy, the gain will be the trustee's, while if it becomes less valuable the loss will be his own. In Ex parte King {i\ a creditor for J^ 1 209 held as security a policy on the life of the debtor for i,i2oo. He tendered a proof for his debt stating that he held the policy as security, which he assessed at ;^2oo, its then surrender value. The trustee admitted the proof for the balance of the debt being satisfied with the value put upon the security' shortly afterwards, and before the close of the liquida- tion, the debtor died, and it was held by Bacon, C.J, that the trustee was entitled to the whole sum received on the policy beyond tl-j i:200 at which its value had been assessed. A holder of a policy on hi^ own life mortgaoed it and covenanted to pay the premiums, he became bankrupt, and the mortgagee valued the policy and proved for the difference between such value and the amount of the debt. He then sought to prove for the value of the personal covenant to pay the premiums, but it was held that he was not entitled to do so (/.). ioi\^^]%7'"' ^''' '^^9 (32 & 33 Vict. c. 71), 8 40, G. IJ. 99, 100, t ^Sf I;,^^^S!!:^'{^^-^^-73,44L. J. BIccv.9^. W. K. 634. (kineermgv.JJunk 0/ Ireland, 12 App. Cas.' 20,' 56 T. T.'^e.Ts BANKRUPTCY. 507 71), 8 40, G. E. 99, 100, Where a creditor is secured by a policy and values Mortgagee of It, aud receives a composition for the rest of his debt S^„„ m excess of his valuation, he has no claim on the composition. policy beyond the amount of his valuation and interest thereon, together with the premiums he has paid on the policy (I). Where a man after his bankruptcy pays the pre- To whom nuunis on pohcies on his own life, effected and raort- L°b/;"'when gaged by him before his bankruptcy, and his assignees pemkimlpl^d in bankruptcy disclaimed any interest, and refused to ^"^ '*"''''"^*- pay the premiums, on his death his legal personal representatives, and not the assignees, are entitled to any surplus after the mortgagees have been paid (m) 111 this case the bankrupt had obtained hia discharge on covenanting to pay so much a year to liquidate his debts, which covenant he had performed. Though the case was argued on (24 & 25 Vict. c- 134, s. 154) a repealed Act, the principle seems clear independently of that Act. If the trustees in bankruptcy disclaim, they cannot Disclaimer i>. subsequently ex post facto claim again where they see a f*°'^'""P*°y ' chance of profit (n). Where the mortgagor of a policy ZZt of ot insurance became bankrupt, but, notwithstanding his Cr"""" ''^ bankruptcy, continued to pay the premiums on° the mortgagor, policy, it was held that the premiums so paid were in the nature of salvage moneys, and must be repaid to the legal personal representative of the mortgagor he having died (0). If a man becomes surety to keep up a policy and Surety's — — . position ou /ad; r, bankruptcy of (0 Holtony. Ftrro, i4Ch.D. 171, per JJacon, V.C. ^1880) 40 L J Cli Policy-holder. (.m)ne Lcanijonth, 14 W._ R^628 {1866) le^^na.^ .^. ,37, 20^^^: KJ^^.'^^r^^^^^^X^l iiohti-ts, 9 VV. li. 005, 7 Jur. ]S. S. 400. So8 Avuidaooo of voluntary Bettlenient of policy. THK LAWS OF IN-SUKANCK. the principal bocomes bankrupt, the surety canimt subsequently recover from the principal any preniiuniH paid thereafter ; for, although such liability of il,e SI rety was contingent, it might have been proved in the bankruptcy (^i). Any settlem^ nt of property made by a trader— not being a settlement made before and in consideration of nuirriagt^ or made in favour of a purchaser or incum- brancer in good faith and fox valuable consideration, or a outtiement. made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in riglit of his wife-shall, if the settlor becomes bankrupt within two years after the date of the settlement, be void as against the trustees in the bankruptcy ; and shall, if the settlor becomes bankrupt at any subse.tuent time within ten years after the date of the settlement, be void as against such trustee, unless the parties claiming under the settlement can prove that the settlor was at the time of making the settle- ment able to i)ay all his debts without the aid of the property comprised in such settlement (q). The word "property " includes a policy of life assurance, the same being a chose in action (?•). The Bankruptcy Act, 1883, contains a similar provision to the foregoing, but of a more extended operation, inasmuch as it applies to all settlements by whomsoever made, and not merely to those of a trader (-s). Act, 1S69, s. 31 ; Bankruptcy Act, 18S3, ^- 37- (ment of, 225 AGENT— Retainer of premiums by, not failure of company to repay 26 Authorltyof, must bo followed, 79 " ^Pay, 2& Receipts of, company bound by, 85 Debiting premium to, effect of, 86 Ratification by receipts of premium from, 98 Delay in paying premium through change of qq Days of grace, receipt of premium after, by, loV To pay premium, promise by, 103 Credit by, for premium, 10 s srs.t,'.'^r4' '°"""'°""' """"" "°""' •» ""■ Misrepresentation by, 168 "The life" insured may of the insured bo, 167 Notice to, of change of business, 184 General authority of, 446, 451 Policy not to be granted bj , 447 Representations of, whether binding, 447 J)et credere, insuring, 448 Writing answers for assured, 448 Authority to contract in writing, 448 When company estopped from denying authority of, 447 Extending time for paying premiums, 449 Commission to, agreement by directors for payment after agency ceased. *T4y Disobeying orders, liability of, 448 Authority of, varied by private instructions, 4=0 Without instructions, 451 '' Notice to, what sufficient, 451 201 ny to repay, 26 would be paid. 201 alment of agent, although INDEX. AG EXT — (continued) MiBtttken instructionB to, company bound by, 451 Authority of sub-, 452, 461 Insuring in wrong couii)any, 452 Credit to, of i)rcmlum, 452 Credit by, of premium, 452 Payment of premium cannot be dispensed by, 453 Piiyment of premium by cheque to, 453 Insuring himself, 453 Privileged communications between company and, 454 For two companies rcvinsuring one in other, 454 (•ross account of, with agent of other company, 455 Xot acting within authority, yet company bound, 455 False representation by, where assured told trutli to, 455 Specific performance of contract of, 455 I'owers of local, 456 Company not bound to grant policy where premium paid to, 456 Applications received but not accepted by. 41:6 Waiver by, 457 ^' "^^ To di8i)eiisc A>ith conditions, power of, 459 Filling up proposal, ellect of, 459 Concurring in answers of assured to insurer's riuestions, 4 eg War, elfcct of, on acts of foreign, 460 Indorsement of policy by, 460 Fraud of, effect of, on company, 461 Contracting outside comimny's business, 462 Contracting outside his authority, 462 Insuring for unother does not warrant interest, 465 Inspiring for another without authority, 465 To effect policy cannot adjust loss, 466 Xegligently Insuring, liable to assured, 467 Commission not receivable from insurer and insured by, 468 Discount does not bclou}- to, 468 Assured affected l)y fraud of, 468 Principal bound by knowledge of, 468 When " the life" is of Insured the, 468 Whether medical nuui is of insured the, 469 Employed to procure assurance, authority of, 469 ALTERATIONS— Of premises, whether covered by policy, 118 AMALGAMATIOX— What it is, 427 I'ltravirea, 428, 424 Power to contract for, not implied, 428 Katilication of, when ultra lires, 429 Power of, how given, 429 I'olicy-holder's claim after, 430 Costs of li(iuidating companies after, 430 I'ollcy-holders, when bound by, 430, 433 Effect of, on creditors, 432 Effect of covenant 'o imleninify oti, 432 Effect of, an shareholdc^-s, 432, 434 515 i: 'hi 516 INDEX. C»3 ■ i ii^m^mmm. /rt^ AMALOAMATIO\_(co,)' '^^ Ro-l„surance .lischarj^ed by payment to, 281 Has no lien on re-insuring policy, 281 Character of. to be disclosed on re-insurance 287 Interest of, not defeutal by mortgage ,26 Ooing abroad, whether policy avoided', 344 AVERAGE— "Same property," meaning of, 2?8 Condition c-sio, 266 Calculation 01, 266 e«S('7. Two-thirds clause 268 Clause in fire policy as to. 270 ^^'^en goods in lighters, 270 Difference in fire and murine assurance of, 269 BAKER— " S'^-^k-in-trade of," whatcovered by policy on, 35 BAILEES— As to insuring for full value. 57 rt sea. Insurance by, and by bailor, 260 Insuring own and bailor's goods without authority, 466 INDEX. 519 enco to iiction Ijv, 248 BAILOR— Ingurance by, and by bailee, 260 I BANKRUPT— Insurable intorost of croditors in estate of, 74 ^Vhether insured can sue when a, 197 Policy of, passes to trustee, 343, 504 Procuring renewal of policy to creditor, 343 Secret assignment of policy by, 348 Premiums paid by mortgagor when a, 360 Whether policy passoH to trustee of, 504 Proof for amount of policy where company is, 505 To whom policy-moneys lielong when premiuaiH paid l)y, 507 Disclaimer by trustee of, 507 Surety for payment of premiums due from, 507 Voluntary settlement of policy by, 508 Proof in bankruptcy lor covenant to pay premiums by, 506 BENEFICIARY- - Change of, at will of insured, 43 Whether he can obj(!ct to substitution In policy of another, 43 Whether ho must have insurable interest, 43 BILL OF SALE— Whether holder of, entitled to proceeds of policy, 310 BILLS OF LADING— With directions to insure, 59 BONUS—. Whether it passes by contract to assign poiicy,343 Whether trusts of policy include, 352 Deduction of, from calls, 401 Whetlier income or capital, 421 Novation by acceptance of, 435 BROKER— As to insuring full value, 57 Lien of, on policy, 378 Employed to obtain policy,, nuihority of, 469 Bjsother— Sister's insurable interest in life of, 44 building- Is insured qua Imilding, 273 Loss to land recovered under, 223, 297 "BURNT OR NOT BURNT"— Insurance as, 29, 51 CANCELLATION— Of poUcy, notice of, to agent for procuring insurance, 47© CARRIER— Insuring for full value, 57, 61 520 INDEX. <'''^iiUlKU— (continued) Insuring ;,'oo.U liold In trust by 6r InHurfnir each .na all owners, 61 KlHkof,,vhonltboglnHandon.ls,io8 Nt-llgcnceof,..HU8inglo8«. 125,' o In8..rorl.a8.subrooatlonagalnKt,249 aa«. la .,o,le, tl.t -uredtutr^^ir "aC '^f CKRTIFICATK- < >f ''WH, by niuj^^lstrate, &c„ 209 CHILD— insumblo Interest in parenfallfo. 44 CJIILDUEN- ""i'sr;*;r ''"■" '^''"' *""•" '>«• -«». .., 1I«.I.«'. „..„„,.e. ,„ tan... ot, „, 353. 33,, CLAIM— Condition as to fraud in, 216 False statement in, 217 KxceHsive, whether fraudulent. ai8 Mistake In, 219 Application of funds set nnmf *„ „ F ),. ^ ' ^'"'"^"^oinswerimnitdlate J2 3 K 'ued on winding up of company, 425 ' **^ COFFEE-HOu.E— Whetlier hazardous trade, 119 COMMISSION— Whether Insurable. 45 Not payable to a,^ent by Insurer and insured, 468 COMMISSION AGEXT— Insurance for full value by, 60 COMPANIES FOR INSUKANCE- Varieties of, 384 How formed, 385 Registration of, 389 eiser/. I)ecd. of settlement can be inspected, 390 402 What are, under Companies aSs, 39;,^^' ' Keason for incorporating, 391 Contracting uUra vires, 391, 39, Using seal Informally, ^9 . Business of, munt oonfom to constitution of, ,g. Form of contracts of, 394 ' ^^^ Appointment of solicitor by, 395 Debentures in fraud of, 396 Powers of investment of, 397 Holding of land by, 402 Deposit of j^2o.ooo by, 404 INDEX. 521 COJII'ANIES FOn INSURANCE— {c<>H ,'183 8iiHp..nHory .IuHmk forhl.ld.m iiHcr. i8a Kvliloiici! to oxpluin, i8j Hroach of by iimua««r-H „,. h.iHhun.lV onlcr A« to toriiilnatlii- Uni policy, 184 •) liioroftMe of riMk, 183 It hiuardoiiH IdisiiioMH, i8j .. I'liaiij^o of li.mii. HH, 184 .. Ulsoloslujf other lnHiiiaiic(>N, 188 " , . V . " ■ wiilvpr of, 100 .. (; " " •• '» lorelHii companj-, 191 " " » b.v iuwrlu leeulpt, 191 " ■''''•"'"""'^'"••incooupnrtof pn,p,.,-,v tg- " " " '''"'''"W«l«iifu 111 lmiiknipt<7, 193 " . " •■ polify not iHHllod, 10^ ., chaiiKo of tltlo, 195 ^■^ .. olmractor <.i qiiuUty of tli ie. 196 „ oxocaion ,wiin„t ,,r„p,.,iy inHiue.l, 107 .. "'IftiiiK- policy to othor property, 1.,=; Wiilvcr of broach of, 203, 211, 213 Mort«ug„e rec„v.,rlnt^ tov n.ortjjugor who broke, 199 Muiltliijj time to sue, aoo Ah to notice of loss, 20a I'roccdoiit to lUHunT'H liublllty, aoa As t: veH;,;Ht.o«"of ,o«s. 202. 2oi'"* "" "'"■'■'"'^ ''''''' ''°' 46: " " » waivi^r of, 203 I, friiiiil In claim, 208 » procurement of lire, ai6 ,. ontry of premises by Insurer, 220 ,. relnHtatoniout, 221 ,. forfeiture of premiums, 233 Usual of life Insurance, 224 Licence to break, 225 As to omlsshmg, 225 „ mlsrojireseutatlous, 225 „ military service, 227 «. arbitration, 233 et neij. ), subrogation, 255 „ contribution, 264 .> avoriiHo, 266 ,) two-tbirds clause, 268 That re-lusure.l sbouUl retain certain amount of iusuranco ^86 Limiting time for recovery, 288 "o'l'iinco, 2B& As to i\.rulshiufr proofs, how complied with, .88 luspoctofs power to dispense with, 459 CONSIGNEE— Insuring for full value, 57 Merchants couipelliu- insurance by 59 Bills of lading recelve.l, nitb directions to Insure by, 59 INDEX. 533 y stiitud, 460,461 snrancc, 286 QOmiaNKK—iamliniidl) Contrllmtloii where iuHtiranco by ronnlgnnr and, 264 CONSIGNOR— Coutrllmtlon whoni InHuruiico by coimliiuco iwid, a64 C(»NSTKU("rrON OK I'OLK'Y— denerii] ruU\sc)et leq, t Written Wiirdn prnvall over prlntiil, 30 KIkW, not, ravoiiri'd, 30 Whin wordM of doul)tl'ul iiiciiiil jg, 30 Againt iDHiiror, 30 III iixipular HiiiNo, 31 Word* of policy HiipnrHode cuMtoiii, 31-33 Ciwtom may control anibl^iiiliy, 33 Aouordlnn lo lux domicilii of WiHiind, 33 ,. .. lex loci solutliiniH, 33,441 It '. .. contractuH, 33, 441 CONTKAC'T— Of Insnror, by wbat law govcrnod, 33, 441 I'aroi m'^rotlii.iuij mor^ed lu written, 455 CONTKIIUJTION— When It (iccurH, 12, 257 et. seij. Subrogation. dllTorenco botwuun U and, 257 rt set/. Ikiiweon Insurers o,'8everal inort^ancL'M, 257 (^ludltlon an to, . repay premiums, 370 » •> not to go out of Europe, 371 Whether insurance money deducted from, 471 et I'q. DAYS OF GRACE— What are, icxa Premium unpaid and loas during, loi Insurer cannot terminate contract during, loi, 102 Whether Insurer bound to receive premium during, loi, 102 Payment of premium after death, but during, 102 ). ,1 after, 103 It » within, and death within, 112 DEATH— Non-payment of premium due between accident and, 87 Company liable though policy not issued before, 109 If not within period of Insurance, company not liable, 112 By law, whether within policy, 139 By suicide, whether within policy, 139 By unlawful operation, whether within policy, 139 By drowning, whether within policy, 1,^9 By duelling, whether within policy, 139 By own hands, 139 et seq. Caused by person effecting insurance, 140 . Onus of proof where suicide cause of, 143, 484 Deduction of insurance from damages where negU-icuce cause of, 472 From fall when catching train, whether accident, 483 In water, drowning presumed, 483 By train running over when seized with lit, 484 . From ruptured blood-vessel by using clubs, 485 From inflammation after rupturing blood-vessel, 485 Within accident policy when solely from accident, 486 From erysipelas caused by wound, 487 From overdose, 487 From operation for hernia, 487 From fall from joist, 488 From fall from engine, 489 l>om fall from mounting carriage, 489 Amount of compensation in case of, by railway accident, 477 Proof of, 492 Appllsatiou for leave to presume, 492 DEBENTURE— Intra viret, but in fraud of company, 396 Insurance of payment of, 502 DEBT— Gaming, gives no Interest, 75 Incurred during minority may give interest, 75 * Paid since policy dons not avoid insurance, 75 525 526 INDEX. DEBT— (continued) Statute barred before dropping of lifo, 75 When fully Becurod gives interest. 76 Creating Hon gives Interest, 76 DEBTOU— Interest In creditor's lifo of 74 Interest of creditor in life of, 74 et «eq. W fe of, seourlno debt, creditor may insure her life 76 Interest of one joint debtor in lifo of another 76 ' ^ Insurance by creditor on life of, 361 et seq. ^ Whether charging with premiums makes policy beloui. to oA Not compellable to insure for creditor's beSt, 3S ^^ ' ^'' DEFAULT— Insurance against third party's, 496 et seq. DEPOSIT— Of policy as security, 332, 378 Of policy ty person out of jurisdiction with one within iurlsdiction Of ^20,000 by l?fe companies, 404. 443 ^ I^dictioii, 2,70 When insurance company can receive back, 40c Insurance of payment of a, 502 DESCRIPTION— Of property must be accurate, 112, 174 I'artially true, 176 Substantially true, 174 DEVIATION— Erom route, eflfect of, on insumnce, 108 DIUECTORS— Ultra vires, nets of, not binding, 301 et seq. Discretionary powers of, 392 Informal use of seal by, 392 Policy issued by ostensible, 392 Power of, to pay loss not witliin policy 397 Must contribute for qualiiying shares," 402 I'owers of, presumed to be known, 446 Payment of commission by, after agency determined, 449 Appointed to select agents at commission, 449 Vacate office when participating in profits, 450 Fraudulent contract of, void against assignee for value, 450 Notice to, 457 '^•' DISCOUNT— Iklonfis to principal, not to agent, 468 DISEASE— The word may include bodily and mental, 140 Must be disclosed, 149 Predisposition to, 149 Picquiring conllnement, 150 "Local," what it is, 150, Fits, meaning of, 150, 160 INDEX. 527 within jurlscHctioii, 379 DISEASE— (coHi t> „ accident policy, 483 Wliero deatli in water, presumption of, 483 DRYING— Kiln used for, 118 DUELLING— Dcatli by, 140 DWELLING— Gaol described as, 172 Room described as, 176 I jiiiiiiii li m !!liil'!I;!ll!i! ELECTRICITY— Wliether Cre risk, 124 EMBEZZLEMENT— Guarantee insurance against, 498 EMPLOYERS— Liability of to workmen Infiurable, 493 ENTRY— Of premises by insurer, 220 EQUITABLE CHARGE— On policy, how created, 377 ERYSIPELAS— From wound, whether within accident policy, 486 EXCEPTION— AVords of, to be taken against Insurer, 31, 195 523 INDEX. EXECUTIOX— Effect of, on right to poller, 197 Whether policy can bo takun In, 382 EXECUTOR— Insurable interest of, 72 I>e son tort, interest of, 73 Not bound to insure, 72 Should keep up polii-y, 370 Ag contributory, 399 EXPECTANCY— Whetlier insurnblo, 5a EXPLOSION— Whether fire risk, 122 EXTINGUISHING KIKE- Damage from, 129 1 i i I' j fj- factor- As to insuring Ml value, 63 As to his interest, 63 FALL— When catching train, Avhethor accident 4 On railway In fit, 4^4 rrom Joist of floor, 488 By engine, driver applying brake, 480 ■tVhilst mounting moving' carriage, 489 Whilst passing from ear to car, 490 FELON- Assignment of policy by, 348 FIRE— Assured's duty to avert, 10 Duty of assured in case of, lo-it ^st of performing such duty, how borne, 11-12 Whether insurance on ship marine risk, 12 srix.;:" 2"""""'°^-"''°^ •»«»"•»''»«-« Does not include explosion, 34 Policy not issued before, company yet liable, 109 W hether more than one, covered, no To adjacent property, disclosure of, 1 13 Date fora.scertainment of property protected from, 116 Property m transitu not protected, 116 What the word includes, 121 Heat without, 121 Without ignition, 121 Cause of, immaterial, 121 By friction, 121 By chemical action, 122 By vegetable fermentation, 123 ount of poller, i6 INDEX. FIKE — (continued) »y llK-litnliifi-, 124 To ac^acent propt-rty, disclosure of danger of. 126 Hy Incimdliiry, 127 Hy muHter of Hlilp, 129 Extin-uisliment of, damage from, 129 Itemoval of goods to escape, 131 Saving property from, cost of, 131-194 , Theft during, 133 -^ ot UHual conditions In policy against, 179-183 Policy when terminable at will of Insurer, 184 tonnlvanco at condition as to, 216 Through accident, tenant's liability for, 292 ' ., negligence, tenant's liability for, 292 " " tenant may insure against, 293 _, •• » covered by ordinary policy, 293 Whether rent payable In case of, 295 ^^ loss from, fa'ls on purchaser, 323 policy passes with beneficial Interest, 324 " » against, runs with land, 323 vrJi' ^ " " P'^'^^es on sale of property, 024 Notice of assignment of policy against, 333 ^^ FIKK URIGADE— Companies' contribution to, 409 FITS— What meant by, 150-160 Death in water, whether caused by drowning or, 483 h ailing on railway in, 484 "^ FIXTURES— Reinstatement of, 305 FOREIGN CONTRACT— Law applicable to, 438, 439 FOREIGN INSURANCE COMPANY— Need not be registered, 438 Trading here, liability of members of, 439 Trading here under conventions, 439 Law applicable to, 438-:}45 l-rovlslon of policies of, m .liflerent jurisdictions, 442 As to deposit of ^20,000 by, 443 How to proceed against, 444 Agents of, when contract foreign, 443 General agent's authority, 448 FORFEITURE— Of premium when policy wager, 49 Of policy not favoured, 81 Insurers may be estopped from setting up, 82 Acceptance of premium waiver of, 85 I'ayment of overdue premium after death will not prevent, 87 2L 5^9 111 iiiji'i'i II 530 INDEX. as GO FORFEITURE— {C0H» ln«ur«noe by wbarfln^rer, 62 ^,.. " . " " moaning of, 62, 63, 64 with vendor at buyer's rlHk, 66 Not sepnmtod JVom bulk, 66 Tost ofinterost on Halo of, 71 Speclflo description, whether necogsary, 116 What, within policy, ii6 Loading, whether within lisk, 115 (iOUT— Answer to question as to having had, 149, 150, i6o (iKOUND— Diminution in value racovorablo, 223 GUARANTKK INSURANCE— Whether writing nocossary for, 496 Not limited to fraud, 496, 501 AVhot to be dlHclosed on offectlnff, 496, 497 Nature of, 30, 31, 496, 497 Rights of surety in case of, 497 Contents of policy of, 498 Against ombozrlement by servant, 498 Assured must observe terms of contract, 499 Whether continuing, 501 By guardians of poor, scx> Change of mode of business, effect of, on, 501 Amalgamation, elTect of, on, 501 Renewal of contract of, 501 Partner's retirement, effect of, on, 502 Subrogation applies to, 502 Liquidators may avail themselves of, 503 Receivers may avail themselves of, 503 GUNPOWDER— Not covered by policy on hardware, 35 Whether Are risk, 123 HARDWARE— Gunpowder not covered by policy on, 35 HAZARDOUS TRADE— Whether coilee-houso is, 119 „ inn is, 119 Extra risk from, 183, 184 Whether liquor-selling is, 184 „ use of kiln is, 185 As an experiment, 185 532 ll'i i.i . INDEX. HAZARDOUS TUADK-(continHed) VVhcthor 1180 of oven 1m, i86 .1 UHG of cnt,ino li, 187 HKALTH— Non.,llHclOHuro of Chang,, of. l«foro Iwue of i«,llcy, ,66, 338 MoimlnK of " bclnjr in >roo inlitake, 104 L'Ura rirm, prumluni rutiirnablo, 106 Wliru ii nxpintH, 107 'XVriiiination of, hy InMiirer, no Lot-al llmitHof liff, 114 Koriinilor valiio whole ainoiint piiyahlo, 138 Where partial, what proportion of Ioih payable, 138 Without any ritpreitentiitlun, 164 DcclinuU liy olliur offlW', 170 In othur otflceo, diicloMnru of, 188-189 HubHcquent dlaolimnro of, 189, 193 In two conipaiilua, dlscIoHuru of, 190 Second by mortuuffor, whether (hnilili- Insniwicc, 191 In foreii,^! company, wlicthe'- donhlc Inmirancc, 191 Hy intorlm receipt, whether donbhi inannince, 191 Stcond on part of iircmlwH, whether donhlu InNurance, 193 (Jeneral princlph-H of Innnraneo law apply to all, 154 TniHtee in bankruptcy lionn• insure, lesHor'H right to Insurance, 309 " " " 'H'd rolnBtote, uo lien for money spent in rolnstating, 309 LKTTERS— Kvl deuce of riglit to policy, 365 LKX— foci domicilii of insured ai)pllcal)le, 33 „ solutionis applieable, 33, 440 ), contractors applicable, 33, 440 LIEN— Gives insurable interest, 52, 53, 59, yy Of trugtco advancing;- on i)ollcy, 350 On policy money, how created, 373, 377 Payment of premiums by stranjier does not givi', 375 Wliether payment by part owner given, 376 >> 1. by mottga; or gives, 376 .. •> by tenant for life gives, 376 '• » under voidable assignment gives, 376 Itight of contribution docs not give, 376 Uy deposit of iwlicy, 377, 380 Of insurance broker, 378 Of solicitor, 379 Drops with policy, 380 LIFE IN.SI TRANCE— N"* indemnity, 13, 17, 328 Dellnition of, 18 Legality of trust policy of, 71 What risks may be taken in, 138 Docs not cover death by law, 139 » „ suicide, 140 General inquiries by insurers, 147 Conditions of, 224 Dispositions of policy of, 328 Policy not within order and disposition clause, 330 „ a negotiable instrument, 330 Gift of policy where possession retainiHl, 330 Whether succession dutj payable on, 367 Policy is property, 369 Applicability to mortgage debt of proceeds of, 369 Power of mortgagee to sell, 369 Sale or transfer of business, 428 537 Whether damage by, is a lire risk, 124 538 INDEX. K-. . i f ■<; a? Co 60 s Ij LL IJMITATION— Of time to sue for loss, 200, 204 LINEN— What policy on, covers, 35 LIQUIDATORS— May effect guarantee Insurance, 502 LIVER— Meaning of " affection of," 150 LOCALITY— Itlsk affected by, 114 No rectification of mistake in, 115 Information must be given to insurer as to, lie Wherein policy operates, 226 Insured gone beyond, 226 I-OSS— Insurer liable for actual, 3, 4 • Recovery by limited owner beyond own, 54, 55 Marketable value as measure of, 56 Tender of premium after, 98 Wliether more than one covered by same policy no From inherent faults, 114 I'roximate cause, regarded, 124, 131 From attempts to extinguish Are, 129 >» i> escape lire, 130, 131 Assm-ed's duty to avert, 132 Hy theft during fire, 133 In transitu, 135, 136 To apparel whilst worn, 137 To live stock off premises, 137 To locomotive chattels, 137 Covered anywhere, if no place speclfled, 137 Time to sue for, 200, 204 Notice of, to insurers, 202, 204 Agent's adjustments of, 205 Particulars of, 206 Delay in, notice of, 207 Claim against several companies and apportionment of, 208 Verification of, condition as to, 208, 210 >. by magistrate, &c., 208 Affidavit of, 210 Proof of, 203, 208, 210, 213 Waivers of proof of, 211, 447 Time for payment after i)roof of, 208, 211 Valuation of, 212, 214 Mistake a" to cauee of, 213 Overcharge for, 213 Insurance is not indemnity against accident, but against, 230 Ascertainment of, before suing for, 215 Not within policy, directors' power to pay, 397 INDEX. 530 MANUFACTURER— Insurable Interest In unfinished work, 68 I ■■ MARKKTABLE VALUE— As measure of loss, 56 MARRIED MAN— includes widower within, 43 & 44 vict. c. 26, s. 2, 359 MARRIED WOMAN— Policy shown to be for benefit of, by parol, 22 rresumed to have insurable interest in husband's life, q8. 120 Insurance of. under Married Women's Property Act, 39. ot\u Husband's insurance for benefits of. and cbiUlren, 41. 353. 354. «t Undernamed Women's Policy of Assurance (Scotland) Act. 1880, 359. Husband may Insure separate property of, 56 Consent of. whether necessary to a.«ignment of policy for her benefit 353 Policy of, on husband's life for her separate use and children, 3C0 Policy on life of yviio payable to her children, 354 hurrender 011 completion of tontine dividend period by, ..r . Policy before Married Women's Property Act surrendered for one after, Canadian law as to policy by hiisljand for, 356 Assignment of trust policy by, 352 Policy for, not Issued until husband's death, 354 MATERIAL FACT- Disclosure of, 163, 167, 174, 178 Whether question for jury, 163 Whether refusal by other office to insure is, 170 Must be stated under seneral question, 174 Purchaser of poUcy, how aftccted by concealment of, 174 MEDICAL ATTENDANT— Who considered to be, 151, 171 Wrong raference to, lJ'^ Non-disclosure of, 225 Whether agent of insured, 469 Whether death within accident policy when from treatment by. 487 MERCHANT- Insurance for foreign correspondent by, 59 Bills of lading received with directions to insure by, 59 -MISDESCRIPTION- Of premises, 176 Of residence, 172, 176 MISREPRESENTATION AND CONCEALMENT- Return of premiums where. 95, 96 Chapter on. 162 By Insurer, 165 Statements must be true when contract actually made, i63 540 INDEX. I-: I Tilt as MISUKPRESEXTATIOX AND COXCEALMKN'T-(co«^«„.d) »y any agent of assured vitiates policy, 167 By insurer'n iigent, 167 By life Insured, 167 As to temperate habits, 169 Innoceut as to health, 171, 175 As to residence, 172 On re-insurance, 175 Forfeiture of premiums tlirough, 175 Discovery of, by insurer before payment, 175 As to part of property, 176 As to incumbrances, 177 Agent's knowledge no excuse for, 215 By life Insured, 227 MISTAKE— In policy whether rootifled, 22, 115 In policy wb jther waived, 25 In policy not rectified and policy rescinded, 25 As to existence of thing insured, return of premium, 7 Payment of insurance tlirough, 104 In proofs as to cause of fire, 213 In stating claim, 219 Of agent fllling up proposal, 459 MORTGAGE— Contribution between insurers in case of, 259, 260 Does not defeat assured's Interest in policy, 326 Of life policy, by deposit, 332 „ notice of, 332, 334 Satisfaction of, b-fore Insurer's pay, 342 rrooeeds of policy applicable to, under Conveyancing Act ^6q Of life policy, what It should contain, 372 To Insurers of land and policy, latter cannot be set olf, 424 Covenant to pay premiums in, 506 MOKTGAGEE— Insurance beyond own interest, 54, 252, 254, 257 Insurable Interest of, 74, 252, 303 Policy of, whether affected by mortgagor's arson, 128 Double insurance by, 191 Subrogation of insurer to right of, 254 Whotlier he can recover fi-om mortgagor after boin- paid by insurer 2;c 1 urther advances by, whether fire policy extends to, 304 ' Mortgagor's interest In policy of, 257, 305 And mortgagor insuring, 257 Right of, to charge premiums, 305, 306, 311, 369 Proceeds of policy of, whether applicable to reinstatement ^o^ Obligation of, to reinstate fixtures, 305 Interest of, in mortgagor's policy, 305 Rig-.t of, to insure under Conveyancing Act, 1881, 306 Tenant for life paying insurance money to, 308 Right to insurance under Settled Land Act, 1882, 308 Of lessee who insured not entitled to policy money 309 Under bill of sale, whether entitled to policy monov, 310 TNDEX. 541 r — (^continued) MORTGAGEE— (c<»t<(«Wfl' •> i> keep policy on foot, 369 Power of, to appoint receiver, 369 Upon trust cannot sell, 369 When also insurer premiums allowed to, as just allowances, 371 Whether bound by mortgagor's novation, 436 >rORTGAGOR— Right of to redeem policy must not be fettered, 73 Insurable interest of, 72, 303 Assignment of policy of, to mortgagee, 72 Whether liable after mortgagee paid by Insurer, 254 Acd mortgagee insuring, 257 Interest of, ceases on foreclosure, 303 „ in mortgagee's policy, 305 Being lessee, should not pay policy money to mortgagee, 300 „ with covenant to insure and reinstate, has no lien on policy for money expended in reinstating, 309 Joint insurance with mortgugee, 311 I'remlums paid by mortgagee whether chargeable to, 312, 360 Subrogation of insurer to mortgagee's right against, 313 Sep irate insurance by, and by mortgagee, whether insurer entitled to contribution, 314, 317 Insurance by, and by mortgagee in different offices, appointment 6f amount, 314 Whether mortgugee bound to account to, for proceeds of his policy, 316 Payment by, of premiums after bankruptcy, 360 Policy on Jife of, by mortgagee belongs to latter, 361 Whether right to policy of, divested by mortgagee paying premiums, 365 Evidence that policy to be assigned to, on redemption of principal secu- rity, 365 Whether novation by, binds mortgagee, 436 MORTMAIN— Whether shares of insurante companies within, 403 Whether policy secured on real estate of company within, 403, 417 NAMh Of insurance company, injunction to rcitrain use of, '•90 IM 542 INDEX. m\ \ •J I as NEARSIGHTEDNESS— Not bodily Inflnnity within accl.lent policy. 480 NEGLIGENCE— Of awurod covered by iK)llcy,6 Gross, when evidence of fniu'd 12 Except where .iBsurod dies through 20 Bonoflt from deatli through, 20 Loss ft-oui, 125 Insurance against loss from own, 125 Subrogation of Insurers where Iosh caused by, 2^1 Tenant's liability for fire through, 292 Tenant may InHuro against liability for fire through 20, Covered by ordinary policy, 293 ^ ^^ Of agent Insuring, liability for, 467, 468 TThether Insurance deducte.1 from damages for. 471 472 ContHl,utory, defence to Insurer In action for .^^.Tr.iU., „,,,,„,^ NEWSPAPER— Payment of insurance to subscriber to 156 Who entitled to Insurance decided by 'proprietors of. 156 NOMINATION— Disposition by way of, 350 notice- To pay premium, ror- Of change of bus^ess, 184 Of loss, 205, 206 Of loss, condition as to, 205 Of mortgage of life policy, 334 Of assignment of policy, 333, 335 " " Jnwst be acknowledged, 335 given by first Incumbrancer Informally, „. « .. not to be delayeti, 335 ^^^ » „ inquiry as to previous, 0,6 Mhose duty to give, where policy settled, 3=0 Of companies' statutes and deeds presumed, ,91 To asent. what sufficient, 45 1, 457 ^^ To directors, what suffloiont, 457 . To solicitor, who is also Insurer's agent 4ct To a.ssured'8 broker not notice to insurer, 468 Of cancellation of policy, 470 NOVATION— What it is, 426, 431 Proof of, 426 • When creditors bound by, 427, 43a Wlion policy-holders bound by, 430 None where companies distinct, 433 Whether payment of premi.ims is evidence of, 43, INDEX. NOVATION— («»i• nogotlahlo Ingtrument, 339 I, gift of, whore poHMeaslou riitalned by donor, 329, 3 50 „ equitable mortjfane of, 333, 338 Kltfht to hm uiidor asslnnment of, 333,1335 Notice o^'aMlyninont of, 333, 334 Must Hpecify principal placo of huginogs, 335 Agreement to axslfrn. 316 Whether covemint to oltoct ,osts policy in covenantee. 338 DopoHit of, 08 Heeiirlty, 338 IntereHt on, 338 Chan>,'e of health before Igsno of. 338, 339 KITectod by fraud, Insurer can >ret baek money ,'339 AHslgnod, duty of Insurers, aware of Invalidity of, 340 Vitiated by afrgriivatlon of concealed IllnonH, 340 ' Asslf-ned before wlndiujj up, effect of. 341 kSpecillc performance of contract to assif,'!!, 341 Asslnumeut of endowment, 34a ItonuM pasgog by contract to asslyu, 343 On own llfb passes to trusteo In bankruptcy, 343 Whether avoided by jToluK- abroad, 344 Purchaser of, how a«ected by assured's coucealmcut of ehause of health 340 Speclllc performance of contract to assi lulliii: I hue to HiK' (III, t of change of health, VOLiay^cmifiniml) ^fot knpt u|i truKtiMi may mill, jjt, 3^3 Wlmtluir truMtoi) iiiunt pay |iriiiiilumi« on, 350 , TruMU of, iroimtruod llko olluir tnmtH, 353 If cover l)onui, 35a For wife and chll.lrcii imtlur Marrhi.J VVonien'M Proporty A.I, 353 359 lH8ue.l before Marrln.l WomoriH I'roporty Act. nurrondi-red for ..nc aaur. 331 For wife not iHHiiod until Inixlmnd'H duatli, 359 .1 aMHl^nment by bcr of, 358 liy crodltor on 11 fo of debtor, 3O0, 366 Hy mortgajfiio of annuity, 363 On another's llfo Kenorully bulongs to i^ranten of, 363 I.ottoPH ax ovidonco of right to, 366 lilun on, how oroated, 373 K»iultable cliar>{0 on, how croatod, 378 Men on, dropw with, 380 Whothor It can be taken In exooutlon, 382 Whero void, frcnh one Unxwd, 394 Ultra vlrm, 393,396,416 1-OHM not within, payniont by dlrootow of, yjy Insnrancii brokor's Hen on, 378 Holloltor'H Hun on, 379 Whothor within mortmain, 404, 417 Whothor company truatoo for aHHJirncn of, 418 Covonant to pay out of Bprclal fun• >. shareholders' address book, 4 to " >. deed of settlement, 410 Can prevent amalj;aniiitlon, 410 Whether he is a crodltcn-, 410, 417 Cannot Interfere In nninayement of company, 410, 414, 417 Whothor liable to contribute when iHirtlcipatlnjf, 411 " " .. In mutual company, 412 Claim of, on company's funds, when it be^dns, 414 Wliethor ri^fht to receiver, 415 No priority over other creditors, 415 In mutual society, how loss of, recoverable, 415 Company's liability to, how limited, 415 Covenant to pay claim of, out of special funds, 418, 42a Appropriation of funds for, 420 Limited liability to, does not affect creditors, 424 Claim of, after amalgamation, 430 POLICIES OF ASSUKANCE ACT, 1867— • (30 & 31 Vict. c. 144), 337 Pf^ - -T+- ^^^F^^R!|- f ■■ t f ; 1 : i ■1 i Hf ! H ! t 99 i •as 2 548 INDEX. I'OLICIKS OP A881;KAX(;K act. m7-(c,mth,„„l) I'assed for protection of eotnpiiniiiii, 335 Not to regulate priority of Incuinbrmciii, 335 I'OST JtOKTEM— AVherc coiuUtloii precedent, 493 I'pou whom to luaku domand of, 493 rUKMIUM— <>r.UT for pgymont of not prevented before death, 83 I'lild Iwforo HttaohnKmt of rUk. U siilject thereto, 7 Ketuin of, where riik not dl8oloned, 9 i» »i rittk not rnn, 9, 161 " " policy rescinded for mUtiiko, 34 Kepayment of, wlien rUk rejected, 2 IJi'paynient of, when further promluiii domiindod nndref^ised by Mmind Ketnlner of, l.y nRent mny not conKtltute failure o' company to repay a<; Aeoeptaneo of, af»«r dlNcov(Ty of ftiiud, 35 Company may rofliHe to take, whore policy oUUlnod by fraud, 35 Kelurn of, where policy cancelled for fiaim, 35 Payment of. not conoluHlvc aa to title to iwlloy, 43 Forfeited uhen policy a wajfcr, 49 Nature of, 80 Wlietlier prepayment necessary, 8i AValver of non-payment, 82 by aceeptuuce of, 84 Credit for, 83 Kccelpt for, In policy, 83 I'aymentof, by bill, 84 Company bound by agent's receipt, 85 " .. director's receipt, 86 Debltluj,' to afient, no waiver, 86 Tayment of overdue after death, 87 Acceptance by company after death, 87 iMie between accident and death, non-payment of, 87 Health of assured when overdue, paid, 88 Keturnable where no risk, 89 Not returnable if risk betrlns, 91 Ucturn of, where in excess of interest, 89, 94 » >• several policies, 89 " » at time of insurance life dead, 91 " '• »> coiKtoalmeut rogardlng the Inmiranci , 96 Whuro fraud of luHurtr, whether retdrii of, 96 ForfuUfd according to condition, 97, 334 Additional, InHurer not ohiljfed to accept, 97 Tond(>r of ugunl, after logs, 97 Amount of, evidence an to materiality of mlireprenentatlon, 98 I'ayniont to agent without authority, 98 llecolpt from agent, ratification by Insurer, 98 Ueturnablo by agreement, 98 Where policy differs from proposalw, return of, 99 I'unotuallty In paymontu, 99 Delay In paying through ohanijre of agent, 99 Delay in paying through change of company's offlec, 99 AVho to pay, icxj Notice to pay, whether necesgary, 100 "DayH of Grace," 100 Debiting agent with, effect of, 103 I'romlso of agent to pay, 103 Cross nccountw, payment by, ro3 Delivery of policy without paying, 109 Kenewal of lapHcd policy by remittance of, 104 Unpaid, and policy money paid by mistake, 105 No return where inHuranoo " lost or not lost," 105 Nof within Apportionment Act, 106 KITect of refusal to receive, 106 Itoturnable where policy ultra viren, 106 Not apportlonable If risk has attached, 109 Instalments of, to be punctually paid, 1 10 Payment and death within days of giaco, 113 Whether rotUrnablo If warranty disproved, 161 Not returnable whero term of contract, 161 Forfeiture by misrepresentation, 173 Payment prevented by war, 226 Paid by mortgagee added to security, 315, 368, 371 Received after insurer aware that policy Invalid, 340 Not paid by settlor, trustee may soil policy, 351 Whether trastoe must pay, 351 Paid by mortgagee, whether mortgagor liable for, 360, 368 Paid by mortgagor after bankruptcy, 360 Whether charging debtor with, makes policy his, 368 Whether payment by mortgagee divests mortgagor's right to policy, 361; Allowed to mortgagee-insurer as just allowances, 371 Whether payment of, by stranger gives lien, 375 » t) by part-owner gives lien, 376 >• by mortgagor gives Hen, 376 .. under voidable assignment gives lien, 376 What divisible as profits, 413 Payment of, not evidence of novation, 431 5SO INDEX. .as S i85 ti9 i'UKMUJU— (continued) Credit of, to a«ont, 452 Creditor, by iiKont, 453 VVhothor ftgont can diHpo.me wltl. payment of, 98, 45^, I'liyniont by cIie(iuo to aKont of, 453 JU'ti.nmbl. whoro policy not grantod, 456, 461 Overdue waiver of forfeiture by reocIi)t of, 457 J'ayuient of, to foroi{.n agent after war begun, 460 It naalned, policy must be unmtod, 462 IXrectlon to rxcutnulato, whetber within ThelluHson Act, coo > aliie of covenant to pay, 474 ^^ riiizK— AVlieOicr Insurable, 45 I'HOFi'r— AKHured not to make, 2-3, 4, 13 rnoKiTs— Wliethtor hmurable, 44 What aro surplus, 413 All pronduins not di visible as, 413 What are annual, 420 I, » charfreablo with income tax, 421 rnoovs— Of arson, 127, 220 Proliminary, 202 Kstoppel ft-om objecting: to mini of, 203 Of loss, 202, 206,210 f. waiver of, 203, 310, 212 ). time for payment after, 212 . 11 whoro needless, 212 II mlBtakc In, 213 •I what required, 213, 214 What is satisfactory, 208, 215, 493 Of accident, what requisite, 492 Of death, 492 rROl'KRTY— AiUaeent, cost of saviug, n-ia, 130, T32, 134 ,, disclosinH' danger to, 126 damage to, in extinHulshlnj'- lire, 130 Benioral of, to escape flro, 132, 137 Insurctl'pduty to preserve, 132 i*toIeu, during Are, 133 Lost, during: Are, 133 Jii traiiaitii, 135 Out of place, where insured, 136 Amount payable where deficient insurance of, 138 misdescription of, 174, 181 Misropresentation as to part of, 181 Over-valuatiou of, 218 Sold, iccovory by vendor of insurance, 195, 196 I.ifo policy is, 367 I'ROrORTION— Of loss payable where under insurance, 138 SSI INDEX. rilOPOSAL— Viirlauct! between irollcy and, 23 Matoriality of stiitoiiiontH in, 163 Dcolliiod by other offlco, 170 Not iiiiHwerlng quostion in, as to claim on other offloc, 170 Mistake of agent lllling uii, 459, 479 Accident insurance, wliat must bo stated in, 479 Ayent concurring in statement in, 479 ri'IMHASEU— VVlieHuT lire loss fall on, 323 Of policy how alTected by iissurud's concealment on change of health, 338, 339 QUKSTIONS— M( imlns,' of untruo answers to, 142, 163 Waiver by issue of i)olicy, of insiimcicnt answers to, 212 Answers to general, must state all material facts, 143, 168, 174 SufBelency cf answers to, 142, 150, 168 Applicant presumed to read answers to, 173 Answer by partner for firm, 171, 447 A^ent of Insurer concurrinf-- In ajssured's answers to, 479 >' «) writing in assurcd's answers to, 447 KAILWAY rASSENGEUS' INSURANCE— Arbitration in relation to, 238 Rights against third persons preserved, 472 i{atii'K:ation— By receipt of premium, 98 Of agent's contract outside company's business, 46a » It his authority, 463 My ((mipany after loss, 463 General prlncl)ile as to, 464 Of^insuranco for another, 464 RICASONABLK TIME— /'/V/c"Tiuio'" KK( ElVER— Appointed by mortgagee, vvlicther to insure, 315 I'owor of mortgagee t-) appoint, 369 Right of policy-holder to, 414 >Iay effect guarantee insurance, 502 REI NST ATKMENT— Condition as to, 221, 276 Not measure of loss, 221, 222, 306 Statute us to, 222, 273 Right to, 232, 273 Klei'tion as to, 222, 273, 278, 279 l(y insurer gives right to old materials, 243 Option for, 272 Sictrupuiitan Building Act, as to, 273 552 INDEX. ai s 1^ KKINSTATEMEXT— (co?i//»wrt;) To what appliofible, 274 Obligation of Insurers as to, '274 Notice to company as to, 275 Enforcing duty as to, 275 Wlierc requlifd by tenant and Insurer sac-d by landlord, insurer can interplead, 276 By landlord, insurer not to pay foi-, 276 By tenant, insurer not to piiy for, 276 How done, 276 When to bo done, 276 Fire dnrlnff, 278 " Now for old," allowance on, 278 Landlord anro rata, 284 t Payable on ,. >, If risk not run, 9 Assured's duty to avert occurronco of, 10 Cost of averting, 11, 12 To adjacent property, 11 Constitutes insurable interest, 51 If none, premiums returnable, 88, 90, 93 It it begins, premium not returnable, 88 If It begins, premium not apportionublc, 91 Partially attached premium apportlonable, gi Not disclosed, insurer not bound to accept additional premium, 97 " Lost or not lost," no return of premium, 105 Circumstanceg affecting must be disclosed, 107 Of carrier, when It begins find ends, 107 Deviation may terminate, 108 If attached premium not apportionable, 109 Happening l)efore policy issued, premiTim paid after, in Due to Inherent faults, 113 Locality affects, 114 Property in tramHu, whether within, 114, 115 Goods luadiug, whetlier within, 116 ■i ! 554 INDEX. as '55 ^B ^ ^^^^■K"^' ■1 H : m KTSK — (covti'nurd) Kiiipty house, whether within, 117 Wl.othor increase of, avoids policy, 118, no «tcam enplne, what uw-r of, within, 1 17 Altcratious of prc'iiilHcs, 118 Krictlon oftUHln«: (ir,., whether a fl.-e, 121 Chemical action, whether a lire, 122 Fermentation, whether a lire, 122 K.X1.I08I011, whether a Are, 122, 123 (iaH, whether a fire, 123 Gunpowder, whether a Are, 123 Heat without Ignition, whether a lire, 124 Hot water, whether a lire. 124 Electricity, whether a Are, 124 Negligence, flr^ by, whether within, 125 Wilftil act, loss from, whether within, 125 From incendiarism, disclosure of, 125, 126 To adjacent property, 126 Removal, loss from, whether within, 131, 132 Theft durins Are. whether witliln, 133 What may be taken In life Insurance, 138 lUKardous trade, extra from, 182, 183 Change of trade, extra from, 184 I.liiuor-selling, whether increase of, 184 lly use of kiln, 185 By experiment, 185 By oven, i86 By engine, 187 By non-occupatlon, 187 By riot, 194 >Vliere ultra vires, 396 DrlTlug not exposure, 488 UUrTURE— Whether withm accident policy when through jumping from train, 482 Whether within accident policy when from using clubs, 48s Of blood-vessolB, InAammation fVom, 485 Death from operation for, 487 SALE— Mortgagee's power of, on breach of covenant to insure, 369 31ortgagee'8 power of, on breach of covenant to keep policy on foot vo Where mortgage on trust, no power of, 369 ' Ot Its business by life office, 428 SALVAGE— Expenses of, how borne, 131, 133 Illegality of policy without benellt of, 248 Insurer's riglit to, 248 SEAL— Informal use by directors of, 392 • What contracts must be under, 394 Absence of, whether a defence, 394 INDEX. 55 5 SECRETARY-. Holding shares as trustee for company, whether contributory, 400 SETTLEMENT— Of iiollcy, expressed in intention to make, 349 Breach of covenant by husband no excuse for breiwh by wife's father of covenant to malco, 350 Trustee liable for enabling settlor to dispose of policy under 3^0 Whether trustee may sell policy not kept under, 351 Wliether trustee must pay premiums of policy under, 351 Inspection of company's deeds of, 390 Directors' non-compliance wltli provisions of, 396 Of policy, how affected by bankruptcy, 507 SHARES— If transferred before li(iuidation, executors not liable on. 309 111 trustee's name, 399 ' In secretary's name as trustte, 400 Liability of vendor of, 401 Sale of, to person who cannot be registered, 401 No exemption from calls of, by forfeiture of, 401 Incomplete transfer of, before winding up, 401 Promoters' liability to contribute on, fully paid, 401 Directors' liability for qualifying number of, 402 In company holding land whether in mortmain, 403 SLIP— Etteot of, 26 SOLICITOR— Lien on policy of, 379 Agreement by company always to employ, 395 Nature of claim for costs of, 396 SPECIFIC PERFORMANCE— Of agreement to grant policy, 106 Of contract to assign policy, 342 Of agent's contract to insure, 456 SPECIFIC POLICY— What it is, 239 SPECIFIC STATEMENT— Effect in proposal of specific, 479 I. „ general, 479 SPITTING BLOOD— Meaning of, 151 Untrue statement as to, 168 SPONTANEOUS COMBUSTION— Whether within Are policy, 193 SPRAIN— Through lifting weight, whether within policy, 484 556 INDEX. ii'i , i<; r ■< :' O H Co '55 so STATUTES— 6 Ed. r. (Statute of Gloucontcr, a.d. 1278) aoa 13 Eliz. c. 5, 348 ' ' ^' 43 Ellz. 0. 12 (Statute of Agsuranco.s), 8 6 Anno, 0. 58, 292 10 Anne, c, 24, 292 * 6 Geo. I, 0. 18, 386 19 Geo. ir. c. 37 (InHurablc Interest). 40, 4a, 54, 288 12 Geo. III. 0. 73 (Motiopolltun Building Act), 29-. 14 Geo. III. 0. 48 (Gambling Act). X3-X4. 15. 2r, 39. 43, ,s, 71. 77, 78. 120, 350, 464 '" ^'" 14 Geo. III. c. 78 (Metropolitan Huildinff Act), 120, 222. 273 27. .^g 292, 296, 3CX), 305, 308, 324 "^ ' 39 & 40 Geo. III. c. 98 (Tliolliisson Act), 509 41 Geo. III. 0. 57 (Royal Excl.a.i-e Assuranoc), 3Q7 S6 Geo. III. e. IxxUl. (CuHto.us An..ulty and Benevolent VuM In.ur anoo), 345 5 Geo. IV. c. 114, 386 6 Geo. IV. c. 36 (Royal Excliange Assurance), 398 3 & 4 Wni. IV. 0. 42 (Interest), 382 7 Wm. IV. & I Vict. 0. 72 (Letters Patent), 387 5 & 6 Vlot. c. 35, 422 7 A 8 Vlot. 0. 84 (Metropolitan Buildin-j Act), 305 7 A 8 Viet. c. no (Joint Stock Companies), 387 9 & 10 Vict. c. 93 (Lord Campbell's Act), 20, 472 10& II Vict. C.96I „„ 12 & 13 Vict. c. 74|(i"»«'ee8' Relief Acts), 341, 381 12 & 13 Vict. C. Xl., 472 13 & 14 Vict. c. 60 (Trustees Act, 1850), 354 13 & 14 Vict. c. 21, 292 15 & 16 Vict. 0. c. (Railway Passengers' Assurance Companies Act, 1852), 472, 473, 482 16 & 17 Vict. c. 34 (Income Tax Act), 38 16 & 17 Vict. c. 45 (Savings Bank Act), 347 16 & 17 Vict. c. 51 (Succession Duty Act), 345, 346, 367. 510 10 & 17 Vict. c. 91, 422 17 & 18 Vict. c. 125 (Common Law Procedure Act, 1854), 231 2^6 20 & 21 Vict. c. 14 (.Joint Stock Companies), 388 22 & 23 Vict. c. 35 (Lord St. Leonard's Act), 299, 400 23 & 24 Vict. c. 145 (Lord Cranworth's Act), 312, 313 23 & 24 Vict. c. 126, s. 2 (Common Law Procedure Act, i860). 318 24 & 25 Vict. 0. 134 (Bankruptcy Act, 1861). 507 25 & 26 Vict. c. 89 (Joint Stock Companies). 388, 389. 391. 403 27 & 28 Vict. c. cxxv. (Railway Passengers' Assurance), 19, 238, ^,(,3. 471. 472, 474. 477. 478 27 & 28 Vict. c. 43(Post.Offlco Insurances). 347 23 & 29 Vict. c. 90 (Metropolitan Fire Brlo-ade Act), 130, 131. 292, 400 29 & 30 Vict. c. 42 (Life Insurance, Ireland), 40 30 & 31 Vict. c. 23, 42 30 & 31 Vict. c. 131 (Companies Act, 1867), 394 30 & 31 Vict. c. 144 (Policies of Assurance Act, 1867), 333, 334, 336, 340, 341.347 31 & 32 Vict. Q. 54 (Judgment Extensions Act, 1880). .^45. 504, 506 31 & 32 Vict. c. 86 (Assignees of Marino Policies), 333 INDEX. 557 STATUTKS 32 * 33 33 * 34 33 & 34 33 * 34 U 283 1 33 «^ 34 292 H 34 & 35 I. 39. 43. 48, 71, 77. 73. I 34 't 35 120, 222, 273, 274, 276, I 35 * 36 35 't 36 36 .fe 37 397 1 38 'fe 39 Bcuovok-nt I'imd Insiir- ■ 38;*, 39 39 & 40 42 & 43 393 1 43 ^'^ 44 ^H 43&44 44 * 45 305 I 44 't 45 1 45 't 46 3S1 ■ 45 't 46 45 't 46 45 & 46 • 46 & 47 irauce Conipanios Act. 9 49 '"^ 50 5° '^ 51 5°''*' 51 ^^H SI Vict. 46, 367* 510 H 52 * S3 52 ^^ 53 ct, 1854), 231, 236 H 54 't 55 56 A 57 ^M 56 '^' 57 313 H 58 & 59 •0 Act, i860), 318 H 59 Vict. 59 .t 60 389, 391, 403 H 59 iV 60 ssuraiicc), 19, 238, 3c,3, ^| 60 .V 61 ct), 130, 131, 292, 409 *67). 333, 334. 336, 340, i — {continued) Vict. c. 71 (Uankniptcy Act, 1869), 504, 506, 508 A'ict. c. 35 ( Apportioument Act), 106 Vict. c. 61 (I.ifo Assurance Compnnics Act, 1870), 390, 404, 406, 407, 409, 410, 424, 425, 433, 438, 443 VIot. c. 93 (Married Women's Property Act, 1870), 2a, 39, 353, 355. 357. 358 Vict. c. 97 (Stamp Act), 372, 463 Vict. c. 58 (Insurance, Life), 404, 405 Vict. c. 103 (Custouig Annuity and Benevolent Fund Assur- ance), 345 Vict. 0. 41 (lUBurancc, Life), 405,406, 407, 409, 426, 435 Vict. c. 93, 74 Vict. c. 66 (Judicature Act, 1873), 320 Vict. c. 66 (Statute L. R. Act, 1875), 292 Vict. c. 60 "i ,,, , ,, „ . Vict. c. 32/(l'''*''n'"y Societies Acts), 384, 474 Vict. c. 76 (Companies Act, 1879), 399 X'ict. c. 26 (Married Women's Policies of Assurance, Scotland, Act, 1880), 359 Vict c. 42 (Employers' Liability Act, 880), 47, 495 Vict. c. xli. (Railway Passengers' Assurance Company), 494 Vict. c. 41 (Conveyancing and Law of Property Act), 72, 275 299. 305. 306, 309, 310, 311, 315, 326, 369, 494 Vict. 0. 38 (.Settled Land Act, 1882), 308, 372 Vict. c. Ixxv. (Scottish Widows' Fund Act, 1882), 442 Vict. c. 51 (Government Annuities Act, 1882), 347 Vict. c. 75 .(Married Women's Property Act, 1882), 22, 39, 329, 349. 354. 355. 356, 357 Vict. c. 52 (Uanliruptcy), 294, 504, 508 Vict. c. 38(Uiot, Damages Act), 194 A'ict. c. 30 (Settled Land Act), 308 Vict. c. 40 (Savings Banks Act, 1887), 347 c. 8 (Customd and Inland Revenue Act, 1888), 422 Vict. c. 45 (Factors Act, 1889), 63 Vict. c. 49 (Arl)itration Act, 1889), 232, 236 Vict. c. 39 (Stamp Act, 1891), 21 Vict. c. 69 (Savings Bank Act, 1893), 347 Vict. c. 71 (Sale of Goods Act, 1893), 63 Vict. c. 16 (Finance Act, 1895), 21 c. 8 381 Vict. c. 25 (Friendly Societies Act, 1896), 141, 237, 346, 384 Vict. c. 26 (Collecting Societies Act), 141, 346 "N'ict. c. 37 (Workman's Compensation Act, 1897), 494 STKAJI ENCJINE— User of, what within policy, 117 STOPPAGE IN TRANSITU— Terminates interest, 60 Whether right of, gives title to insurance, 379 'uring lire, 133 THELLUSSON A( T— direction to pay premiums, whether witliiii, 509 TIME— Whether reasona1)le is a question of law or fact, 204 For payments extended by insurer's conduct, 212 TITLE— Of insured property, whether material, 120 Condition as to change of, 195, 198 TONTINE- Policy not gaining contract, 49 TRADE— Disclosure of hazardous nature of. 117, 119 TltANSFER- By life office of its business, 428 Of policy with company's consent creates new contract, 323 S6o INDEX. f X h. ^ •^ TREATY— Ihitween conipank'8 as to rc-lnsuranco, clToct of, a3o TRUST— Viillrtitjrofpolicyon, 66 ■• Nbuio of person for whom oflfeot«d innHt appear In poUey on, 71, 77 73 Of policy coDHtruud like otiior trusts, 352 Whero no fund for promlumg, mile of policy on, 352 Of policy Includes bonus, 352 I'ollcy effected by married man for clilldron, 359 TRUST KK— May Insure, 6 ■ Insurance by, presumed to be qiid trustee, 71 l'(»llcy must contain name of C. Q. T. and of, 71, 351 Knablln-j settlor to tllgpose of policy liable, 351 ' May sell policy, settlor not paying premiums, 351 Whether premiums must bo paid by, 351 Lien on policy for iidvances by, 352 Appointment under Married Women's Property Act of, 354 Insurers paying to, 382 Secretary holding shares for company as, 400 Of shareholder hi Ihiuldation, disclaimer by, 401 For iissinrnie of policy, whether company Is, 418 Bound by novation of settlor, 436, 437 VBEnniMA F/DES— AVhetluT Insurance contracts require, 8, 163 VLTRA llliKS— How re-insurance affected where Insurance is, 280 Directors' acts, where, 391, 393 < orapany's business must not be, 393, 395, 398 Policies do not bind where, 393 Third persons and company contracting, 393, 395 Manager grantin-;- policies, 394, 395 Wliether illegal acts arc, 394 ' Whether informal acts are) 394 Dealings with funds restrained when, 394, 395 <'l&im on (jollcy which is, 395 Jfatillcation ol amalgamation which is, 428 USER— Disclosure of, 117, 119 AVliethirto be as described, 117, 119 Of house, 117 Of steiini-engiue, 117 Increase of risk by, iiS, 119. 183, 185 Change of, 117, n8 Of paper-mill, ng Of kiln, 118 For experiment, 185 Of oven, 186 By non-occupation, 187 INDEX. S6i VALUATION— 0/l(WM,3i3, 315,216, ai8 VALUED POLICY— May Ih- on liiiid risk, 3, 28 Where value voiicIuhIto, 3, 4 I'roof of losH necosHary, 4 Interest ncix-ssary for, 239 Whether contract of Indemnity, 24^ ' Subrogation In cbho of, 256 VKNDOU— Insurable Interest of, unpaid, 69 Interest of, paid, wlio Iiiih not conveyed, 69, 70 When Interest of ceases, 70, 195 Whether fire loss falls on, 321, 323 Whether riglit of, to stop hi tmnmtu gives title to Insurance, 379 Of shares, a contributory, If on register. 400 VKIllt.l FOIiTIUS ACCIPIUNTUR COXT/IA PROFERENTEM, 32 Even whore otherwise Intended, 32 WAGKR— UilYeroncu between insurance and, 7. 49 Tolicy illegal if a, 48-49 rremlumsnot recoverable if policy n, 48 WAGES— Of seaman not insurable, 48 WAIVER— Of delay in paying premium, 99 Of breach of condition, 179, 198 Of breach of policy, 180 By resolution to pay, 180 Of non-disclosure of other insurance, 190. 192 Of forfeiture by assignment, 198 Of proof of loss, 210, 212 When Inferred, 212 Of imperfect answers by Issue of policy, 2 ro Of condition as to forfeitiuif premiums. 223 By ufflrmanco of contract, 225 Of right to arbitration, 235 Of forfeiture l»y acceptance of rent. 299 Of condition by agent, 448, 458 By agent of forfeiture, 457, 458 By acceptance of premium after di uth of insured, 458 What necessary to constitute a, 458 WAK— Payment of premium to foreiL;n agent after commencement of, 460 WAREHOUSEMAN— Insurance for full value by, 62 Instiring own and another's goods without authority, 465 2N 562 INDEX. 5 WAUKANTY— ImwlTertnntomlnMlou from policy of tlio woi'.l, 33 Different on marine and othor pdUcIih, 154 I'art of the oontrm;! 154, 156, 157, 163 Mat«irlalltyof, 154, 157 MiiHt bi! true, 154. 155, 1^7 MuHt Ik- purformed, 154, 155 KxproMM or luipllod, 154, 1155 In, or Incorporated In, policy, 154, 157 That mill " worked by day only," 156, 157 Mcru opinion, and not, 157 Notnecog8«ry to Htato facts covered hy, 157 iDHurerg may require Hpeoial, 158 True "ho far an known," 159 Of " yood healMi," 160 That Injured not Hiibject to IIIh, 160 Wliuther prenjlunm returned where breach of, 161 Kvldeiice of, 161 KlTcct of transfer of insurer's huHlncxH on, 162 Declarations of InHurod, whether evidence to prove breach of, i6a Ah to touiperance, 169 WilAltFINOEU— hiHuranco of full value by, 58, 62 His liability to owner of tio^tda for ilro, 63 Goods held " in trust or on commission " by, 63 WIDOWKU— Included in expression "married man (Scotland) Act, 1880, 359 WINDING UP— KITect of iwRlgnnient of policy I)efore, 341 ItiKht of assignee of policy participating In prolita in, 412 Payment of assurance after order for, 423 How claims valued in, 425 Kesusoitatlon of company for, 434 In Married Women's Property f', ^ •^ *^' 1 nnl ■MMj^^ '■1 ^^^H^^ 4 Printed by Ballantvne, Hanson London &' Edinburgh Co. •each of, i6a kVomon's I'ropcrty ^12 f 5 1 S9 " • HI es ^p ^ .% F *i>« 1 i S ' F' ^ t W' SO eo ' ■ ■** i ' i .«H '" i i rO 1 ■ 1 :i: f 1 Telegraphic Addresa : "POLYGRAPHY. LONDON." A CATALOGUE OF LAW WORKS PUBLISHF.D AND SOLD BY TEVENS & HAYNES, fato |ul)lts|ers, gojItseKfrs i (Bnpttm, 13, BELL YARD, TEMPLE BAR LONDON. BOOKS BOUND IN THE BEST BINDINGS.; ^orks in all Glasses of Literature supplied ta Order. FOREIGN BOOKS IM P ORTED^- T^-c LIBRARIES VALUED FOR PROBATE, PARTNERSHIP, AND OTHER PURPOSES. -' IBRARIES OR SMALL COLLECTIONS OF BOOKS PURCHASED. mrge Stock of Reports of the various Courts of Engl iIGESTS- Law Magazine Quarterly Digest . Menzies' Digest of Cape Reports. IISCOVERV— Peile ... "7 IVORCE— Harrison ... * ' 23 OMESTIC RELATIONS— Eversley g OMICIL— i-« PRIVATE INTER- NATIONAL LAW. ' UTCH LAW ... CCLESIASTIC/X LAW— B"ce Smith DUCATION ACTS— See MAGISTERIAL LAW. LECTION LAW and PETITIONS— Hardcastle xx O'Malley.and Hardcastle . .* ! 33 iseager .- QUITY— Blyth 22 Choyce Cases 35 Pemberton ..... ' v» Snell ." ." 22 Story ..... ' ' ..^ Williams ...:'■* ^1 l^IDENCE- • . . / Phipson 20 XAMINATION OF STUDENTS— Bar Examination Journal ... 39 Indermaur ." 24 and 25 Intermediatd LL.B. . . . 21 IXECUTORS— • * Walker and "felgood .... fi XTRADITION— Set MAQISTERIAL LAW, [ACTORIES— See MAGISTERIAL LAW. ISHERIES— See MAGISTERIAL LAW. IIXTURES— Brown .... « [OREIGNLAW— " "*"* Argles . . Dutch Law Foote . . Pavitt . . RESHORE— Moore . . RGERY— .$•« MAGISTERIAL LAW. AUDULENT CONVEYANCES— May 20 AIUS INSTITUTES- Harris . . . . AME LAWS— * ' See MAGISTERIAL LAW, UARDIAN AND WARD— Eversley . . , ACKNEY CARRIAGES— FAGB 44 26 45 43 36 45 32 38 36 32 30 20 See MAGISTERIAL LAW. HINDU LAW— Coghlan .28 Cunningham 38 and 42 Mayne jO HISTORY— ^ Taswell-Langmead ..... 21 HUSBAND AND WIFE— Eversley ...... g INDEX TO PRECEDENTS— ' ' iNpSfe!!. •••••••• 40 •Eversley . . . ■ q Simpson ...... ax INJUNCTIONS— * Joyce INSTITUTE OF THE LAW Brown's Law Dictionary . INSURANCE— Porter , INTERNATIONAL LAW— Clarke Cobbett Foote Law Magazine ••..,» 37 INTERROGATORIES— Peile 7 INTOXICATING LIQUORS— See MAGISTERIAL LAW. JOINT STOCK COMPANIES— ^« COMPANIES. JUDGMENTS AND ORDERS— Pemberton JUDICATURE ACTS— Cunningham and Mattinson . Indermaur Kelke \ ~% JURISPRUDENCE— Forsyth. . . ... 14 Salmond .13 JUSTINIAN'S INSTITUTES— Campbell ^7 Harris ......,,. 20 LANDLORD AND TENANT— Foa LANDS CLAUSES CONSOLIDA- TION ACT— Lloyd J J LATIN MAXIMS .....! 28 LAW DICTIONARY— Brown LAW MAGAZINE and REVIEW. LEADING CASES— Common Law 18 7 ^5 11 26 37 __i.. ...,!„, ajarr . , . Equity and Conveyancing . Hindu Law International Law .... 4^ LEADING STATUTES— ' Thomas •....,,, 38 B a f •< I 2 STEVENS &* HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS- -fottthtHta. LEASES— '*°" Copinger .'.,.. At LEGACY and; succession- ' ^ Hanson ,q legitimacy and marria'ge- ^« riUVATE INTERNA- ^ tional law. LICENSES-i-MMAGISTERIAL LAW. LIFE ASSURANCE- Buckley .... i* Reilly .'20 LIMITATION OF ACTIONS- Bnnninc a-i LUNACY- ** ... 10 ... 7 PRO- 46 20 36 40 Renton Williams ,,,,,,' MAGISTERIAL LAW— iireenwood and Martin. . . MAINE'S (Sir H.), WORKS OF •Evans' Theories and Criticisms MAINTENANCE AND DESERTION Martin MARRIAGE and LEGITIMACY Foote MARRIED WOMEN'S PERTY ACTS— Brown's Edition of Griffith MASTER AND SERVANT- Eversley ^ MERCANTILE LAW . . " ' ,2 Campbell .' Duncan ' ' « Hurst and Cecil ...!!.' 11 Slater .... * ' * „ ^« SHIPMASTERS. ' * ' ' MERCHANDISE MARKS- Daniel MINES- Harris MONEY LENDERS— Bellot, ai\d Wil|is . . , MORTMAIN— 5(-'n ..'.'.., y Purchase . . , :al Law , , . ] :titions , . . , • • • t . 7, 22 and , 'recedents'of . . . >minission , . . , ourt of Judicature . . PATUTES, ORDERS :S- 3 OF PLEADING- n and Mattinson . , ind Macaskie . , . URE— orations) i| ting) veyancing) . . . iiinal Law) . . . ercantile) . . , Common Law) ctions) - ^ . . Bankruptcy) . . , l| y) ERNATIONAL LAW^ < » • . I . . rROBATE— *^°^ Hanson ,10 Harrison aa JROMOTERS— Wattt ; . At JUHLIC WORSHIP— * Bricc o^ QUARTER SESSIONS- Smith (F.J.) 6 llUEEN'S HENCH DIVISION, Practice of — Indcrmaur 25 QUESTIONS FOR STUDENTS— Aldred 21 Har Examination Journal ... 39 Indcrmaur 25 Waite 2I |tAILWAY.« - Browne 19 Godefroi and Shortt . ; ; . . 47 KATING— Browne 19 REAL PROPERTY— Deane 23 Edwards , 16 Tarring 26 lECORDS— Inner Temple ....;; 1 1 lEGISTRATION— Elliott (Newspaper) . .' . . 14 Seager (Parliamentary) .... 47 lEPORTS— Bellewe ., 34 Brooke 35 Clioyce Cases 35 Cooke • • • 35 Cunningham 34 Election Petitions 33 Finlason 32 Gibbs, Seymour Will Case . . 10 Kelyng, John 35 Kelynge, William 35 Reilly 29 Shower (Cases in Parliament) . 34 IHOMAN DUTCH LAW— Van Leeuwen 38 IROMAN LAW— Brown's Analysis of Savigny . . 20 Campbell 47 Harris . . , 20 Salkowski 14 Whitfield ,4 ISALVAGE— Jones . 47 Kay . . , 17 ISAVINGS BANKS— Forbes jg ISCINTILLAE JURIS— Darling (C.J.) 18 PA«I 30 30 17 SEA SHORE— Ha" Moore SHIPMASTERS AND SEAMEN— Kay SOCIETIES— Set CORPORATIONS. STAGE CARRIAGES— See MAGISTERIAL LAW. STAMP DUTIES- Copinger 40 and 45 STATUTE OF LIMITATIONS- Banning 43 STATUTES— Craies '3 Hardcastle 9 Marcy a6 Thomas jg Si OPPAGE IN TRANSITU- Campbell 9 Houston '32 Kay 17 SlUDENTS' BOOKS . 20-28, 39, 47 SUCCESSION DUTIES— Hanson 10 SUCCESSION LAWS- Lloyd SUPREME COURT OF JUDICA- TURE, Practice of— Cunningham and Mattinson . . 7 Indcrmaur , 25 TELEGRAPHS— See MAGISTERIAL LAW. TITLE DEEDS— Copinger . 45 TORTS— Ringwood 13 TRADE MARKS— Daniel ....;... TREASON— Kelyng ..35 Taswell-Langmead ..... 21 TRIALS— Bartlett, A. (Murder) . . 32 Queen v. Gurney 32 ULTRA VIRES— Brice ....,,,, USAGES AND CUSTOMS— Browne ........ Mayne VOLUNTARY CONVEYANCES May WATER COURSES— Higgins . . . jo WILLS, CONSTRUCTION OF— — -*— • -*»,j»»*.^ *.#. ^^ri.txny^ t'. Attorney-General 10 WORKING CLASSES, Housing of— Lloyd . , 13 43 16 19 38 29 Ifl S 55 ^r£AS &- HAYNES, BELL YARD, TEMPLE BAR: Third Edition, in Svo. Just Re*dy, -vwwv.,, 1,1 ovo. justKe*dy, THE LAWS OF INSURANCE : EMBODYING . CASES IN THE ENGLISH. SCOTCH. IRISH. AMERICAN, AND . CANADIAN COURTS. By JAMES BIGGS PORTER. OP TH,. INKER tEMrLH AND SOUTH EASTERN C.RCU.T. BARR^STr R-AT tAW. "Ini u*eful wo.' ASSISTED BY W. FEILDEN CRAIES, M.A.. OF THIS INNER TEMPLE AND WESTERN CKCUIT, BARRISTER-AT-LAW I Of rts authors Is srtll apparent to anyone do willffieXo„^STts L-s ^'' W *> "'^"; """^ "'^ '»'«>i The success of the first edition proves ib. v-Iif. i! . , ^ , "' Pf «*'• SoltcHors' Journal. I t.soo cases are quoted."^i:^„ S^ '''"'• '' •" •='*'"''y ""^ concisely compiled, and upw.nrd, of is nof c'o^plrrb'^^^of th"^ Sr"^^KcT rttt' i'^n^rC'"' •'''''?" - "- '»>- "^- ^-rs whicl except marine insur.ince, he hits up^n a popXr s'uWerf ^ '"^ "^ !>"/"'2"" 'aw in all l^ts branched made for h.m, and he has called to hfs aid aS uTcoad utor i; rh. A ' ' ^J-J""^"" ^«" «"* '•'« gap th I " When writing on the first- edition in 1884 we ventured T ^- T°!!,°^ '^'' Craies."-Z,,„ |,P,™ I firmed our favourable views. "_/„.«°!,i!;^ ]?W.''"""« '^"^ P^^' ""•«« y'"« has, we may say^fuily^co"! In Royal i2mo, price aoj., cloth, QUARTER SESSIONS PRACTICE A VADE MECVM OF GENERAL PRACTICE IN APPEI LATF L '^^'''^ ^^S^S AT QUARTER SESSIONS ' ''''' By FREDERICK JAMES SMITH °^ ^"- "">"'--^ TH M PLE, BARR.STER.AT..AW,-AND RECORDER OP MARGATE. Third Edition. In one volume, 8vo, price 21.., clouT" j A COMPENDIUM OF THE LAW RELATlNf Tn EXECUTOi^S AND ADMINISTRATHR^ w . ^^ ^^1 Sta^ Annotated "laiT^^^^^^ iec't *^'„dTlfi''^'' fortunate in his choice of a subJ ■Jh. ' A * P"^^"" ^^ treating t succinctly • fori the ponderous tomes of Williams, howJSisfac I •^W, highly approve of Mr Walker's arrange- ^Jl L: ■ ■ i"i ^"* ^°''^ *■■« f""> and as far as we wmpiw" •""" '° ^^^""'"' «'*'^"y ana accurately on^f, f,;.": M- ■ ^Ve can co;Timend it as bearing on Its face evidence of skilful and careful labour !^ Jt!''"""^?^?* 'hat it will be found a venJ acceptable sufetituw for the ponderous tome^ WNDEl IWith I< an In royal i2mo, price 4^-., cloth, A DIGEST OF THE LAW OF PRACTICE UNDER THE JUDICATURE ACTS AND RULES AND THE CASES DECIDED IN THK phanc-- " r " - - ^^ ""^'^^' FROM NnvirM»,,~T> „ '"' ■^■•Jr.ii.iun LAW DIVISIONS .. . *^"^* NOVEMBER ,875 TO AUGUST jB8o. Bv W. H. HASTINGS KELKE. M.A.. Barrister-at-La«-. |by mi STU/ "Them " A wor lud Rules lllic entirel Ictful com TEMPLE BAR: STEVENS ^ ffAYNES, BEIJ, YARD, TEMPLE BAR. JRANCE : AMERICAN, AND SR, *RRISTFR-AT LAW. ISTBR-AT-LAW. that it was a painsttkine ani present edition, and the laboul . —ioitcilors' foumal. ' cisely compiled, and upwards ( 1 in less than three years, wliicll isurance law in all its branched 'J- Poi-ter well fills the gap thul .fMr.Craies/'-J^,,„|,3l r. Porter's work a great succe« J he author s style, the thorouKhl vt subjects into \ small space] ws has, we may say, fully conl RACTICE, ■ APPELLATE ANi fONS. PH, tR OF MARGATE. ., cloth, DELATING TOl With an Appendix ofj ext. By W. GregoryI ^GOOD, B.C.L., M.A.,[ • L., M.A. unate in his choice of a sub-j ; '^a'lng >t succinctly ; fori I Williams, however satisfacf are necessarily inconvenient i expensive On the | o think the book a good and trttal. ' Second Edition, in 8vo, price 95., cloth, PHE LAW OF MAINTENANCE AND DESERTION, Ei!t?n« '^"Fr^^?'^^fA„P^A.^"E JUSTICES THEREON. Second Edition, indud.og the LAW OF AFFILIATION and BASTARDV. With an Appendix of Statutes and Forms, inchiding the Summary Jurisdiction (Married Woniens ) Act of, 1895. ^, Hy Tem.-i.e Cuevai.mer Martin, Chief Clerk of the ^t^ "-r^"''" ^?""' ^''"''' "*^ '^'^ "MaKisterial and Police Guide," &c., and George Tempi.k Martin, M.A., of LincoIn^s Inn, Barrister-at-Law. «'=*'^"" Third Edition. Crown 8vo, in preparation, rHE LAW OF ARBITRATION AND AWARDS; ^^^.i'^^^PP^"^''" containing Lord Denman's ARBITRATION BILL. AND STATUTES RELATING TO ARBITRATION, ane profession undir no ordiif^y <^Haat "n l^hr^vi^;"' v^k'u ''"5 '''°"k'" '° ^"^^ "P"' greatly increased by the production of thU sSdldUion and th^l^ i'^H *" '^en rendered has bin rank among authoritative expositions of the law. ' "" '^*''' ''""'•ves a place in the firs ^^^^^t^ri^^^^ir^^^^ Himself in a hurry, .„ clearly enunciated ; but it is always deduced from Va^I Ll.f J^ ° "*^ "^ *"* P^«*?' ""''• «■'«" found it ii cases-Ert«lish and American-a7d readerfmust be con e^it tnT,l""^ «=xami,ution of multitndinou Beven. the vjiioU; fieid'ofj^^dS'^^^r^ "^ SC {.i^ X^^jj^faf-f T^'^'y" ^'''"^ the full benefit of the results a which he an-ives The hS^l U n ?^ ''""u^^^ " "" reference, and often the lawyer mav find !, >,fn71 ^'■. ..„:1.''?°'' '.V""' meant to be taken u, fo would gain ...^ .u„ uceni oi tne results at which hf aTr\%,^^ -rx. '\J~\~ """■"'= v-niH-wni, ii inc r a hasty reference, and often the lawver rnav find , ..f.T^ ^" ''°°'' '' "°' ""'an' «<> be taken ui On the otW hand, ii will be an invilua^Te^Zjanion irrheT.^"i:re"r'^^ '"^ "''''"■^^ r^« «""" research, and the style and arrangement aie such thi^whe hLT wS •"" °^ ^^^ *""""■ "'•''•^'^ ■'eiuirei of geneml study, it cannot fail to prove deeply interes'ting ^ " "''*' '^"^ P"'P°"'« "' »'"''in«s c |ifg^o^^ witinn the pre.,, u 1 ich th«(y are discussed Negligence mav onlv I^ an f.V , f'*!.' **■ '*'*' '^"'•nine and patience will «:cOrded to :t throws into prominenceTho"t of oue^stbns of th^^^^^^^ '** ' ''"' y'« treatment her, ''!f°'2'f'"^ .^y *>" contribution to The due , nderstand^L of ^h?c°'VrT'*''"^ ''°"' Practically and .on ^td^er a lasting obligation, an ^^^^^^^^^ ^ ^^J^^^^^t^^ voiI^i;rs\„reVr';tvtv;faSr$ tliese volumes, made full use of his former fabo.ir^^ bn, l i • '^^ ''^- "'Shgence. He has, in writind new one. and his claim is justified uit^.i^i^lT' "'^'. '".'''^ality the present work is f book IS published, and such a one is thii of Mr Beve^ W. l'^ 'l"'u"'*""'=" ^"'^ ably-conceived laui on the subject would be impossible^ i? Itands^s^fv the h.« L^i"'' '^u' '° "'"P"'^? " *"h other book3 aw, for good classification of subject-matter f^icLrarv^Ll^V" *^V"'*J''='- '" '='"='" "Position o3 ate reference it cannot be beaten wlmAyc^^^^^^^^^ ^""^ every arrangement to faciliJ laborious USk ; he has given to the profeLion a va ulb le wnrU ,',, J T" T°u 'be accomplishment of hi.l as a writer on the Law of Negligence. "-ZawV^iw! August 3. 1895."' '' '="''"'" '''' "P"""'""! ;u::e";Xrg!'iSo"re SSrea^ scientific way, and has not been content wi.hj ni any Digest of taw Reports, but has enCured ?o rr h^t ? "-Tk" *t'* =';>;°"? '=°"''^ fi"^ ^O' bimselff study of the subject, with clear enunciltlonrof the t "cTDlerhe finH,r''''°'°^^^ ^ systematicl the arrangement of the bbok the author ha" been ve?vhM?n!f !,.»,• f °^f ""?g «be various decisions. Inl treatment of a subject in which each branch of t ^nreall^voverkn,^^^^^ '^ ^^ "" "'"".'" ^'''^ '^sk in thel clear type increase the value of a book wKvil^hout'^Z^hl^^^^^^^^^ i,' " ' •^8°°'' 'n^ex andl profession as 4 successful completion of the LTiI" am wlious t^k "-rail'y!}:^;!.^ commendation of ,he| se^ero'^reryltylJ^'whowi^^^^^^^^ It will be o(i than merely to find correct anTSlefer^^^^^^^ understandTng of the Law of Negligence or a practitioner. To the student the woriLvXaEril practical use, and that whether he be Istudenil cases ; and to the" practitioner therelrTprefenfed all lhJr^. f^*"^',^^ ^""^ well-sustained discussion of the| be^ii, search . of avtLrvty. One of the cluef merft, nf ,h. t* that bear on most points for which he may' point is collected and i/.r.,.,™.j.v.. ;"'.*' "J*"'^ ?,■"}« work is, that all the available amhorWy oa .»rf, ". '■ ' , ;: •»^"'"'""'^"" be easily louud."-7«„V/iV«/Jf«7fw/. «ion."-i1^SX^j?;jt""°"^ "°"'' ""'^ °"«''' 'o «"-* a fair trial at the hands of the prOf« "The I I the su iiiiief. tolume a Buch sub TEMPLE BAR. STEVSm A- HAYNES, HELL YARD, TEMTLE EAR. rice 70J., clot* . N LA Law ok Negligence," *W or EMPLOVEKS' LIABILITY KKLLOW.SERVANTS." second edition ol his ' Principla tn books are the same ; and th] "■•As to atiythins; beyond thi.J :r different from that previousU lew, and of the remainder therl ret in expression. :e • was at once recognized asl Heven had brought to bear upoj tiich he then rendered has beel )k deserves a place in the firJ : is not himself in a hurry, an(i his pages, and, wlien found, it i| g examniation of multitndinoul lurely and cautiously, with Mrl and elaborate criticism, if the/ < IS not meant to be taken u3 resort to a treatise more concisej n of any matter which require! used for purposes of business ol impossible within the preseiii f the learning and patience witll law ; but the treatment herJ iportaiice, both practically an J • .,, -^m" ^^^ placed the profesl viU tail to realize."— .iV/»Vv/DrJ former edition of the presenJ egligence. He has, in writing reality the present work is s itten and ably-conceived Ian compare it with other book J ibject. In clear exposition oil every arrangement to faciliJ 3n the accomplishment of hi.l ch will enhance his reputationl and has not been content wittij anyone could find for himselff > of decided cases a systematic! ing the various decisions. Inl I by no means easy task in thel • • . S. good index andl hearty commendation of the! Times. ly commended. It will be ol] r of the Law of Negligence.L J that whether he be astudenti ell-sustained discussion of thel lost points for which he mayl ! available .-iiithority on mcpJ view. at the hands of the profes- vSecond Kdition, in royal 8vo, price 38T., cloth, [HE LAW OF THE DOMESTIC RELATIONS, INCLUDING HUSBAND AND WIFE: PAKKNT AND CHILD: CUARDIAN AND WARD: INFANTS: AND MASTER AND SERVANT. By WILLIAM PINDER EVPZRSLEY, B.C.L, M.A., Of TliK INNER TEMPLE, BANRISTEK-AT-LAW. le'vl'ioti: t'iaroVXril 7^":;"' " l,^'";- f' ■■"■"''y'" •r''"' *"*• '^'"='-« '^ * -convenience in havin,^ I irsuch f,,| Is^n. tnJl,tl\ >-" •••■- "^'."' <"'- Y"l"'"«. white at the same time each is handled lv.sU«; ,1^ '' I . "^'"'*'' •'" ''"^ "'f'»""'i>'on hu could expect in a separ.ite vulume Mr I e'%1- vam Ut It" Zl .."st-s""^^' "-"f ';'"« "j--.K'...ess and h.s' made an l.\Ls^!::ZrvJ;^ I' teslev'tolJi'J'T.""''''^' ''"';? •'""'•* !'"° """"•■-•'i'"' 'i"''•; '•r<-;-'«'> l«.i.ned and scholarlike work on 'The Domestic ftelal pLn^;t;i\:fc; :;:^;::^!^,l7l;ri^;;^^ tSSe:'^:^:^,S K^r'^'- '^ ^^^ '^•" " Second Edition, in one volume, royal 8vo, price 32^., cloth, THE LAW RELATING TO THE ALE OF GOODS AND COMMERCIAL AGENCY. .SEC0A7) EDITION. By ROBERT CAMPBELL, M.A., or LINCOLN'S IN-.V, DAIiHISTRR-AT-LAW; Ain-QCATE OF THE SCOTCH BAR ai;tho!j ok the "law of nkgmoence," etc. Second Edition, in one volume, 8vo, price 28j., cloth, A TREATISE ON THE CONSTRUCTION AND EFFECT OF STATUTE LAW. fclTH APPENDICE.S CONTAINING WORDS AND EXPRES.SIONS USED IN STATUTES \VHICH HAVE BEEN JUDICIALLY OR STATUTABLY CONSTRUED \ND THE POPULAR AND SHORT TITLES OF CERTAIN STATUTES. By henry HARDCASTLE, Barrister-at-law. '^SECOr^TD EDITION, REVISED AND ENLARGED, by W. F. CRAIES, BAItniSTER-AT-LAW, "The result of Mr. Craies' industry is a sound and good piece of -vork, the new lieht thrown nthe subject since 1879 havin? been blended wi.h the "W ;„ - .vT^l.luf^ J f """ anner. Though less a studenls manualthan a" "practitioner's texV bo^k" i7is7he"sort""f t^^^.^S^^'^^^^::^u::^ ^^"-'« ^ ^^-^-^ bettertan\'hVf^Sof ^1 .'1 ^1 .J5 m ■■■Sn' ^^■Iv ^H-! \'^H V ''^l^H i. jL . fl 10 -^^l^i-^ //^>W^^^ ^.^^^ y^]^^^ y,^^^^^ ^^^ HANSON'S DEATH DuVTfs^^ .- the Acts rdu.i^B^? L" e DuTv il.n ' ,';'en)g the Fourth Edition < 43 Vice. ,4; and 44 Vic c Va'- ifs^, Vh C' T' ^"'"."'^ '^'^"'=""'-' ^'ts 57 & 5« Vict c. 10 am to l' r^\- ^'"''^ i'"'"'*-' ""'y '•'"«"« Acts! Copious' Notes, and ^KcC cc? t.:' .M°„.V n •, "l 1^ ^- ""^ • "".. '"'-'^"ction lan,i and Ireland. An Anpen lix an \ full n ^^"1 '" »'"K''^"<>. «cot| the Mi.l.lio Temple, Kso m ki. n. r I" ''""• .P^ ^lkred Hanson, ol jessK. Duties. ' Fourth '7./^!:^^^^^^^:; ^r'fi " '^ i^'^c!^? «- i*. II. L. Lrkin(;ton, M.A., Harristers-at-Law '-""'"'"' ^'-A-. L).C.L., an, ,, I . " '••> ••"• ••• > •'•nil It IS remarkable tiow surclv t rf-nM^ o,. , i i i M? Han "*]:• '"7".^ "'"^ the'p'rolea ' Th Jlf:!' 'Cof .h'e^'"' *"«"^"y ^^ S"-:«-'T ,'?."ies," is ">ei^'r?;;r.r::r?ra.^^-KJ::r^ rcpiu.uioii with the I'mfession, nm. all intere«i..,l vvliMl ,i . ' ";"■»"''' •• ••'«•«-■•* O" "le subject tJ "11 111 ilic iccnt Arts biivu >; veil birth the n,J mi. er .-.-v aw strikes iis as .lie>„lle„ d'be , a^ 0.1 these dilhcull siatuies." - /,/,/, J^aw / iwn ^ iHE LAW AND PRACTICE IN LIINAPY- •, the Inebria. s Act 870 and ,«8X '"^^^ V- .'^'"1"' "^V'' ""'^' 1'"^^''^) A<:t, So,! Lunacy Acts. .S^i-.Ss'ran.ra U^ '^^flV" /"'' ^^'T^^ ' "'^- ^''"'^y „__JWoouJLB, BARRISTER-AT-LAW. i.nuiil;%S. JdiriSand cLefuC^^^^^ -h- g-en the author the a v^ry good treatise on tt modern^ oi^ulorr^t^^^:^V^^ilfti^^^^ ", ^i" '«"«= i'B place Uent arra„,eLnt and by th^tcif ^atn'^^ntfwtch ct f^L ^^\J^1 >'''"-- J-tified by the jommend it to the attention of the Profession and"Dredirt7l'"fc-*'' "'".'^ '"^I'^'i"" of determination. " We P^d very permanent future."-/,aw -Fimes ^ *"* "^ ^"'"ofd and Tenant a very useful UsI o f'tinfe L° otie^of'the Ee:i-i["o;''ther't-":orir? *''"' \ ^'°"'-^''-'='^ '^ " ^'^^ "°' ""<« rank in W Tenant."-Za«/ NoUs. best-work for every-day practice on the subject of Landlord L''Ni;5°^^a?'wtf ?n"Jisi;Sy"%^.Syrerf'' "'l"f v^^^^. °" "]f 'f'^^'^ ^ ^^ ^-""y -V Ivourableone/'— A^™ ow--"5.-^J:°^!^^^^^^ "•*"'• • • • Our verdict on the book must be a decidedly ''yrhe Kelationship of LanJord and Tenant.' written bv Mr F,Ia=.r IT-,, i> ■. r ^ / nking mstance of accuracy and lucidity of statemenV "rh^ Za ^f *^^oa, Bamster-at-Law, affords a wyers but by landlords and tenants them^Iv^tr^aw in /,.h -■ '^°"' u ^ '^"""'^ "^'■"' "°' ""'X W [■d clearness Vhichbrin,., it V .thin the l^p oTihe Fay mind!^!^;^'^/^:'"^ ^""='1 -"'> a simpircitj Lin^l^'L^n^'TeSat'hrelb^^^^^^^^^^^ St eivin'i V"',!^"""^,' '^"'= '^^ '"« '^r' «"<« '^e Ends the key to the richer annoreelaWatireasufeso? h' r "" ";'^' ";.«y.";l'>"-e. *!" plar.e in their \i works. "-/;„.,„ Times e'auoraie treasures of the Law which lie in larger and more e.\haus. -k, and the Uk Is in many respe cts a very rle^^vk^'Kl '^-l^^a,^^^^^^ '^"=" "?*'"'='» °" ">«= c a tji n s 2 ^ 1 18 SrEFMArS d- ^^KA'ZJ-. J9SIL YAKD, TEMn.K BAR. Second Edition, In roynl 8vo, in the Press, A TREATISE ON THE LAW AND PRACTICE RKIATINC. lO LETTERS PATENT FOR INVENTIONS WITH AN AITKNDIX OF STATUTKS, INTLRNATIONAL CONVENTION, RULES, rORMS AND PKECKDKNTS, ORDERS, &c. By ROBERT FROST, H.Sc. (Lond.), ' r«,.,.,nV OP THE ^""^li^^lJ-H-.K.^v^^c^.^otN^S^N. E^.,„,, BAK«..STK«.AT.,.AW. coiiipikil entitles it to rcciirnition at the Inndi nf ih. ^ r • "'* '"''"J"' ''>' ^''- '''■•'"« has I,,,,;* ground, «e(ind him complete" la isf.aorv A V ', ' •'•'"'«■"« M^ ^>ost o,mI,,., (jreut cnre and much h.bour have l"e dev^ied to .hf Ln.r?- r",':' "'' "•""''-■ ^■'''"""' "'"i^'""--^ "- H'-'' Ke:f:M;it,;s^i?i;;;:;;'^-,ri::.- ^^^ .!- uwii, he , the book.' — /.aw 7w>7«i/. "I'l "raiun or tiie law, . , . A capital index conchuK. are appealed s.*a.ute^V,deta''d fo m '* Tl fs a, em2,^ :7,f" "' KwTo '" ''"^^ i^' "'1 ""'K-,'" ^^'-'' (hem, appear to he clear and accurate ^KX^' ^"^ it ought to beconie the standard wo'rk on iTs s u"bject,"!f,?S?/yT,U';;r"' °' well-directed labour, and duce^r;.w'k'Lrc'o^.fntrU';iltd'one'l^hi^h"^l%^^^^^^^^^^^^ oT^new line for himself, and p. expended upon detail, and we shall be much surorised if Mr H^H.'n' T"' ' ^*'' *''T""' "f '"^"^'0 Jabovr. by obtaining . large and apprecTa"ive 7^^cf-la^Jn^fs "°' '""" "^' '^'"^'^ "^ •>'' Equity Uft alt jcct. y fulfils a iffonm a novel J m. \vi ES! rKMrr.E bar. Press, STEVENS ^ HAYNES, BELL YARD, TEMPLE BAR, 13 Third Edition. In 8vo. Just ready, OUTLINES OF THE LAW OF TORTS. By RICHARD RINGWOOD. M.A. pleasure. . . . After perusinir ll.eSewor^ ^i.l '^^ ' ^ Imu StuJtnit' Oonmal. ' *' *■"" ^^'c riitda,auxt.book by iht Incorporated Law Society of Ireland. Sixth Edition, in 8vo, price 2ij., cloth, ~~ THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c, AND OTIIKK ACTS, WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. By eyre LLOYD, OF THE INNER TEMFLE, UARRISTKH-AT.I.AW. SIXTH EDITION. By W. J. BROOKS, OF THE INNER TEMPLE, HARRIS TEK-AT-LAW. Biuu/'Sitn!^J:tst^^^^^^^ tke decision, oj tke Court, e/ Lar. and k/t all ,„petitor, in the diUaHc7XdUbo% «C^ r^'"v '""j '^J' .^^7 '•^-'"' '^' '<"'« ««" TICE VENTlONS.j L CONVENTION, •RDEK.S, kc. OND.), HE, BARRISTBR-AT-I.A\V. 1 dUparnf»lne existing litcr.iturt volume hy Mr. KroHt has I,,-.,, • J.i"lK"ng Mr. Krost on tl,;. ic entire vohiinc satisfies iis ihii eati.se, and we think that |i:,itiii :e and instrttction to the |',ii;c> *'e repeat that it will be f..iii;.! . A capital index conchnkJ ;, tlie several topics l)cing ran. le body of the work, to wliij, ar as we have been able to ii.m nd good. . . . The book is Hoth paper and type are :il ;e 50J., cloth, THE AND RACTS, RDENTS, " AND TO CONTRACTS FED CASES :>NTA'ACTS. fie preface that the author ha.. .rchitect, and devotion to the jecame a member of the bar. nerely English, but American It of well-directed labour, anil sw line for himself, and pro "dispensable by practitioner'., Table of Cases refers to all i barrister, hit upon the idea ouseowner u-.~.,i!d \{\.:^ ..^ -c, 1 a vast amount of industry not reap the reward of hi> In 8vo, price Js., cloth, THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE AS IT EXISTS IN ENGLAND. ByEYRE LLOYD, B.A., Barrister-at-Law. In crown 8vo, price 6s., cloth, ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY. By JOHN W. SALMOND, M.A., LL.B. (Lond.), ^ BARRISTER OF THE SUPREME COURT OF NEW ZEALAND. In crown 8vo, price 6s., cloth. THE FIRST PRINCIPLES OF JURISPRUDENCE. By JOHN VV. SALMOND, M.A.. LL B UARR.STKR-.vr.LAW; AUTHOR OF " ESSAYS .N JURISPRUDENCe' AND LEOa'l H.STORY. Tf f '3 H (8 2 InSvo, price Js. 6c/., doth, THE LAW OF NEGOTIABLE SECURITIES COATTA/NTrn m A COURSE OF SIX LECTURES Delivered by WITJJAM WILLIS, Esq., Q.C, AT THE RKQUEST OF THE COUNCIL OF LEGAL EDUCATION. 'B TH COS Al OF In one large vol., 8vo, price 321., cloth, rcvicv INSTITUTES AND HISTORY OF ROMAN PRIVATE uM WITH CATENA OF TEXTS. review! tveii n !sic.iti h IStudem BV Dr. carl SALKOWSKI, Professor of Laws. Konigsberg. Translated and Edited by E. E. Whitfiki.o, M.A. (Oxon.). In 8vo, price 4.r. 6,?'., cloth, THE NEWSPAPER LIBEL AND REGISTRATION ACT, I88l| WITH A STATEMENT OF THE LAW OF I.rBKI, AS AFFECTING PROPRIETORS, PUBLISHERS, ..„ EDITORS OF NEWSPAPERS. B, G. ELLIOTT, E.-.r,iacr.a.-L.„, cfthe Inner Temple. ri In one volume, royal 8vo, CASES AND OPINIONS ON CONSTITOTIONAl LAW, AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. COLLECTED AND DIGESTED FROM OFFICIAL DOCUMENTS AND OTHER SOURCES. y/ITIf A'07'£S. By WILLIAM FORSYTH, M.A., M.P., Q C Author °f"Horten...-. History of Trial by Jury." -.Life of Cicero " etc., '"***^"°w of Trinity College, Cambridge. Tl IRULI 18 ICOUI "The I remarkal "Asa I Jonntai " Care "We I previou.s I library."- "Prac I purposes TEMPLE BAR, STEVENS &^ HAYNES, BELL YARD, TEMPLE BAR. 15 Sixth Edition, in 8vo, price lo.f. 6r/., cloth, URITIES ^X LECTURES. Esq., Q.C., DUOATION. IE PRINCIPLES OF BANKRUPTCY. WITH AN APPENDIX, CONTAINING THE CONSOLIDATED RULES OF 1886, 1890 k 1891, SCALE OF COSTS, AND THE BILLS OF SALE ACTS, 1878, 1882, 1890 & 1891, AND THE RULES THEREUNDER; THE DEEDS OF ARRANGEMENT ACT, 1887, AND THE RULES THEREUNDER. Hv RICHARD RINGWOOD, M.A., OP THE MIDO-K IK.n.n;. HAHKISTER-AT-IAW ; I.ATB SCHOLAR OF TRINITY COI.LEGr, DUBLIN. )th, PRIVATE LAI " We welcome a new ediiioii of this excellent student's book. We have written favourablv of it in j,ev.ew.i^„rev,o„se.UtioMs,aM,l every rou.I word we h.-ive written we would now rStTan'd pUaps |ve; more so. . . I,, condiision, we con„r.,tulate Mr. Kin^wood on this edition, and have no ■hesitation m saymR ihal u is a ,;apltal sttulent's l.ook."~/.«7y StmienU 'Journal. lc."?''r*'.'L'''"" '■ " ^''".''■'•''•'■"l'!" unprov.meiit on the lirst, and althonnh chieny written for the use of ptudents, the work will he found useful to tlie practitioner."— i^Ty Times. """en lor tne use oi ws, Konigsbeig. r.A. (Oxon.). Seventh Edition, in 8vo, price 215., cloth, A TRKATISK UPON THE LAW OF BANKRUPTCY AND 'ION ACT, 1881 VA. AS AFFECTING 'F NEWSPArERS. ler Temple. WIONAL LAWj ISPRUDENCE. tL DOCUMENTS Q.C., ICIL OF INDIA, ife of Cicero, "etc., e. BILLS OF SALE. WITH AN APPENDIX CONTAINING THE BANKRUPTCY ACTS, 1883--1890; GENERAL RULES, FORMS, SCALE OF COSTS AND FEES ; [rules under S. 122 01-' 1888; DEEDS OF ARRANGEMENT ACTS I 1887— 1890; RULES AND FORMS; HOARD OF TRADE AND ' COURT ORDERS ; DEBTORS ACTS, 1869, 1878 ; RULES and FORMS- BILLS OF SALE ACTS, 1878-1891, Etc., Etc. By EDWARD T. BALDWIN, M.A., OF THE JNNEH TEMl'l.E, IIARRISTER-AT-LAW. I "T|>e seven editions simply record the constant progress of case growth and statute law. It is a I remarkably useful compendium. "—/,a7(( y/wfi, July 20, 1895. I As a well-arranged and complete collection of case law tliis book should be found of great .1 sp. •'_ A/,,,. \}our}iai, July 20, 1093. " ' — " w "[""^ brought down to Ai-X.^."— .'Solicitors' Journal. November 9, 1895. We have always considered the work an admirable one, and the present edition is quite up to the previous hieh standard of excellence. We know of no better book on bankruptcy for the practitioner's library. —Z,a7i/ 5/«] iM ^S lb CO as fj^f^ffi^^^Jf^^yj^S, BF.LL YARD, TEMPLE Ba7. Third Edition, in one vol., price 20^., cloth, A COMPENDIUM OF THE LAW 01 PROPERTY IN LAND ^CJ, ,897. mrflJ^EFEA'EA-CES TO 7 HE TEXT. ^ Bv WILLIAM DOUGLAS EDWARDS, LL.b". OK LINCOLN'S INN, DARKISTKRAT-LAW. ' ..•enr.'--:^^"'y?^i!i-*-"«--" "- we know of no better con.pcndi.m upon the subject of which! non^.^:r^t/'^,i!:"l=, , REVIEWS. j .!n„ 'Jli^*^fr'!!^.°^pO'-PO'-ations that Mr. H,,,-^ .reats of fand i,«.- f ^ „ ' THi TEMPLE BAR, STEVENS &* HAYNES, BELL YARD, TEMPLE BAR. 17 f., cloth, E LAW 0] AND. E PROFESSION. fE LAND TRANSFeI 'VIE TEXT. DS, LL.B., excellency of arrangement an] of successive editions, that th] urn upon the subject of which j this time secured a first placj uigcnicnt of topics and by ihl itutes and Cases for iSyfi,"-! "■"i?" ' ^"'"P^ndium of the I.aJ 'v7~^.''\" ^'"''"ils' younial. Vlr. Edwards' ' Compendium a perspicuously."— Zaju Ti,„is\ 'S not always possesstd by tlil iiid is worthy of the improvj i>oltcttort' Journal. ■ th, COMPANIES. K OF "owers, and Liabilities ol VANIES. London, INSEL. VT.MNING THE UNS. Seventh Edition, in royal 8vo, price 36J., cloth, UCKLEY ON THE COMPANIES ACTS. THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, 1862 to .893; and THE LIFE ASSURANCE COMPANIES ACTS, 1870x01872; inci-udino THE COMPANIES (MEMORANDUM OF ASSOCIATION) ACT: THE COMPANIES (WINDING-UP) ACT, and the DIRECTORS' LIAHILITY ACT. '^ TEvtrtttee oit the %A\a of Joint ,^tock domjiaiiie*. |CONTAINING THE STATUTES, WITH THE RULES, ORDERS, AND FORMS, TO REGULATE PROCEEDINGS. SEVENTH EDITION BY THE AUTHOR, anf / A. C. CLAUSON, Esq., M.A., ='^ '^^ OF LINCOLN'S INN, BARRISTRR-AT-LAW. .!. Ill- Second Edition, with Supplement, in royal 8vo, price 46^., clotJi. THE LAW RELATING TO SHIPMASTERS AND SEAMEN. ^HEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES AND REMEDIES, By THE LATE JOSEPH KAY, Esq., M.A., Q.C. Second Edition. WITH A SUPPLEMENT Comprising THE MERCHANT SHIPPING ACT, 1894, The Rules of Court made thereunder, and the {proposed) Regulations for Preventing Collisions at Sea. Bv THE Hon. J. W. MANSFIELD, M.A., and G. W. DUNCAN, Esq., B.A., OF THE INNER TEMPLE, BARRISTERS-AT-LAW. REVIEWS OP THE SECOND EDITION . "It will, however, be a valuable book of refer- I ence for any lawyer desiring to look up a point I connected with the rights and duties of a ship- 1 master or a seaman— the list of cases cited covers I nearly seventy pages— while any shipmaner, ship- j agent or consul who m: sters this edition will be I well posted up W.i hope this new I Edition will be quickly appreciated, for the Editors have carried out an arduous task carefullv and well."— iSuitf Journal, April, 1894. "It has had practical and expert knowledge brought to bear upon it, while the case law is brought down to a very late dateu Considerable improvement has been made in the index."— /,«•:{/ Times, April, 1894. In royal 8vo, price ioj'. dd., cloth, -^.v/.«../..w.JTHE MERCHANT SHIPPING ACT, 1894; ore fully, and at the saniii :^ the law of principal amll , —Law Journal. ' Aiiglian Rail-.vay Co. v.l idvantage."—7«,4. „,<;„/ oK L. R.. 3 Q. a Du. .4..). With the Rules of Court made thereunder. Being a Supplement to KAY'S LAW RELATING TO SHIPMASTERS AND SEAMEN. ^V, wSich are added the (proposed) Regulations for Preventing Collisions at Sea, With Notes. By Hon T W. Mansfield, M.A., and G. W. Duncan, B.A., of the Inner Temple, Barristers", at- Law. '^ 1> ai 18 S7^£y£A/S *. J/^yjVJiS, BELL YARD, TEMPLE BAR. TUD llin^ .!1"^?/*'""""' '" '"y"' »^'^' •'"« 40... cloth. TljE JUDGMEWS, ORDERS, AND PRACTICE cuiEr.v ™E SUPREME COURT -i^^i'l^ ™i%W„?LSFii^'™» ™ TRUSTER ^^^-r^Tm~x^S;Ct.r^^^ «•'»> "''•' Treasury KeJ n.e "Uw o< Savings IMulfril ,87S ^^ V-^ •''''''i« '." '^'^^'"K'' ^^'''''<'* j'l -—Ji?l?!!!lB'« Wafer." ^7*'' "'"' J"'"* Author of "The La J In demy i2,„o, price 6j., clolh,~ THE LAW OF SAVINGS BANKS SIWPf ifi7fl. Tri«tcc an,l Post Office Savings Banfs** *>"PP'«'»cnl to the Law relating to "'•""y^. '"°i$''''' °' '-''""'"'^ ^""' "arriMor nt-Law. In 8vo, price isj., doth, "~ THE ADMINISTRATION OF DECEASED PERSON! WITH l^iZl^iT^^^^^r ^^' '^"^ "'- -wr o. ju.L.^^ Ukkerknces to mE Tkx? ' Annotate., bv By W. GREGORY WALKER and EDGAR J FLGOOD sion IS treated with conciseness ami r.,i 7 i '" I... ™.ta.,iy fc..,, £.Zl », ~ ?c»il' J^'i'' tration actions.' To the last m/ntfnn^ u'"''"'""! 8ladIy.-iccord s,«=cial praise aTrcZnnt"''*'-*' om u'id ' "'^ P'-'l'"'" "» of any inlportan^^h't b:.: ofcas^, wilhWfor^ ''''•'""■"'"'y ^""Oucted table * • « SCINTILLAE JURIS CHARLES J. DARLING, Q C M P W^h ^^ ' • F«ANK LocKwooD O C "' MP J^"^,\,^5°""^P'^'" -n-S Colophon by »i.c • i-!- - • i >-nvvu, K^.\^., iVI.t", fourth K.Iitjnn 'K-,!,- j> Ul |lh the ofF of t For. TH M the Ps ['This is , Inicipal ( (that ev« ppy by h rery dist iand wat |trol, ani t the prir osfers oui «i. This '■ stimuli: i given 1 "'itiittee \ ihe ' Stocl fter Bill, ' a lull ) M TEAtPLE BAR, ., cinth, ) PRACTICE 01 RT, '^^^-^^ CHANCEKV division! 'ON, id Author of " The PracticJ ment." e profcsHion The f^,^ J pear to iw lo be acciirnte, „„i| of to prnctitloneM in ilie (.(wiicrj the bcmtiDiiig of the hook, mul , \G TO TRUSTEI r with the Treasury Kciiii •intniciU of the Inspcclion r A. KoRiiKH, of Lincoln'j ilatiiifrtu Savings i)anks;' m; Author of "The Lav SIEVEATS &- JIAYNES, BELL YAJtD, TEMPLE BAA'. IP Second Edition, in 8vo, price 251., cloth, HE LAW OF RATING OF HEREDITAMENTS IN THE OCCUPATION OF COMPANIES^ By J. H. BALFOUR BROWNE. And D N. McNAUGIlTON, .>f the Middle Temple. Barri.ter-at-Law. 1 he^tuble, and h^«cu„=„ yulualio,., which are jha. ,„,:h a work in mud. needed, and we are »ur, tli.it all thpue who are interenied In, or have 10 do Wirh pubic rating, will fmd it of ^rcat wrvice. .Much tr,d»e in thcrof.irc due to Mr. Urownc for hi* «l.le. rcatJM--a wo* which Tii^ .Apericnce ai AcKiMtrar of tlie Kuilway Coinb.iwioi. peculiarly 'iwahfted him to undertake. "-/.ait/ JUai "^^ ' ^ "IJ*.w....wi. vMiu4tiiij|in wiiii;ii lire nlcd in an api)endix to thii* volume will be of «i lervicc to the pariHh authorities, and to the I praolitioiiem who nmy have to dual with iha linK of IhoAO properticK which iir« in iTc occupa. jof Lompanie*, and we coiiutatuJuto Mr. Ilrowns the production of a clear and conciw book of linystom of Company Haling. 'Jhero in no doubt utgatin*. In 8vo, 1875, price y. dd., cloth, HE LAW OF USAGES & CUSTOMS : % jgractital Jpatu Iratt. By^ J. H. BALFOUR BROWNE, (ir TUB MIDIJI.K IKMi'LK, Q.C. bINCE 1 878 ; |-;.vf =--» =f^^^^^^ "5 Id A.ssislant Reeisf rir. o«","'""''l"' ,*''";' ''?<:e»''»fy."-/mA A,„„ '/•/«/«. "^ ' ' ftarinonwcd »o far as posmble and Registrars 0^ int to the Law relating tol i-T at-Law. W., clo th. NG TO SED PER80NI , A.NNOTATEI) BY J. ELGOOD, ;ation .ictions,' ' The pronfs ofl and Ihe cost of .idminisl the last-mentioned chapterwel praise, as a clear and succinct! from which, so far as we have )n of any importance has been I elaborately, instructed table ( esm separate columns to all I !>; good index, much increase | • —Solicito rs' Journal. ce 3^. fid. net. ^ptr, price Ts.dii. net. In one volume, 8vo, 1875, pwc i8j., cloth, IE PRACTICE BEFORE THE RAILWAY COMMISSIONERS UNDER THE REGULATION OF RAILWAY ACTS.X & .874 Bth the Amended General Orders of the Commissioners, Schedule of Forms and Table c, Pee.s: together with the Law of Undue Preference, the L^w of the jurisdSon For ,', If^A^"?^ Commissioners. Notes of their Decisions and Order. .PrSents of I«or.ns of Api,hcat.ons, Answers and Replies, and Appendices of StatuJes and Case. By J. H. BALFOUR BROWNE, OF TIIK MIDDLE TEMJ-I.E, (J.C. J"Mr. Browne s book Is handy and convenient in hi, and well arranged for the purpose of refer- le; Its treatment of the subject is fully and klully worked out : it is, so far as we have been t to teat It, accurate and trustworthy. It is the vork of a man of capable legal attainments, and by official position intimate with hit subject: and we therefore think that it cannot fail to meet a real '?J".i?"'' ?,P''2'" f ^''"'"^^ 'o 'he legal profession and the public."— /.aa/ Mmgazint. In 8vo. 1876, price Js. 6d., cloth, THE COMPULSORY PURCHASE OF THE UNDERTAKINGS OF COMPANIES BY CORPORATIONS, pd the r 1 Jli^i'nt '" i^'r'^iT "S ^^^ ^'""'^^ °^ ^^'"^ '■'"' Compulsory Purchase through 1 arhament. By J. H. Balfour Browne, of the Middle Temple. Q.C IS a work nf mn«l(I»rnTilA llnr^/^f»nny^<>. •«. «11 U_.l. !.-_ . 1_ . i.4 piece ana Coloplibri by | t-nlargcd). Ue matters which, since the *• • • . It has a quality I 'S would not be unworthy of It often be assigned to that ['This is a work of considerable imporujnce to all iicip.il Corporations, and ii is hardly too much to that every member of these bodies should have ipy by him for constant reference. Probably at ■ery distant date the property of all the existing |and water companies will pass under municipal itrol, and therefore it is exceedingly desirable tt the principles and conditions under which such Wers ought to be made .shniild be cka''v under- "(i. This task is made easy by the present volunie. t stimulus for the publication of such a work ; given by the action of the Parliamentary ■ fcl e" which last session passed the preamble li n'tT^*""" ^."'^ Middiesborough Corporations ^ter Bill, 1876." The volume accordingly con- ' a full report of the case as it was presented both by the promoters and opponents, and as this was the first time in which the principle of com- nulsory purchase was definitely recognised, the« can be no doubt that it will long be regarded as a leading i ,^. As r. , .alter of course, many inci- dental points of interest arose during the progress or the case. Tht ,, besides the main question of compulsory purchase, and the question as to whether .here W35 !y- was noi any precedent for the iJiii, the questions of water compensation.s, of appeals from one Committee to another, and other kindred sub- pets were discussed. These are all treated at lecisth by the Author in the body of the work, which is thus a complete legal compendium on the laree subject, with which it so ably deals. " U 2 20 i;^ f •< O IS 55 Co 2 STEVENS & » HAYNES, BELL YARD, TEMPLE BAR. mnn/^n '" 8vo, price 5j., cloth, ■ THEORIES AND CRITICISMS OF SIR BENRY HAInINI Bv MORGAN O. EVANS, Barris.er.al-I.a>v. *" .Second Edition, in crown 8vo. Just ready, THE LAW OF EVIDENCE " We are of opinion that Mr. Phipson ha^ i duced a book which will be found very servic J wl h»'' for Pactuioners, but also for studi We have tri«d it in a good manv olace^ 11% A^] *'" '>«»"8»" down^o'^ d**;?!? In 8vo, 187a, price ^s. &/., cloth, AN EPITOME AND ANALYSIS OF SAVIGNY'S TREATISE ON OBLIGATIONS IN ROMAN lA • EDIN. AND OXON., ANU B.C.L. OXON., OF „» «lf V..^'"'''''^'-^ ?''°*n deserves the thanks ol all interested in the science of Law. whether MrfiZ^hT^'P^i.*"'"'' ?" 'OWigations.' «r. BpoA-n has undertaken a double task— th». «t«nslatioa of his author, and the analy,is of hii rh"i^tlkTf"tr; «^h'''? Hr,""'^''""'* '"^^^^^^^^ tne bulk of the original will be seen at a glance ; By ARCHIBALD BROWN, M.A, THE MIDDLE TEMPLE, BARRISTER-AT-LAW. the French translation consisting of two voIuJ with Mr. Browns thin volume of a hundred! fifty, pages. At the same time the pith off Savignj?* matter seems to be very suai„fullv Ki "°'^'"8 which might L ^TZ\ T^t^al '"* «PI»«n"y omitted."-^ T"» ELEMENTS_OP_ROMAN £1^ Second Edition, in crown 8vo, price 6j., cloth, A CONCISE DIGEST OF THE INSjrUTES OF GAIUS AND JUSTINIA Bv SEYMOUR F. HARRIS, B.C L MA *^ Mr. Hairis's digest ousrht to have v/^v^^^r^TTT. ~ . /nm of Court and the Vniversitia ff^ Took I 2 T""-^ ^f sttuimts both in\ ««rf/«^^/Y^,«r^„.y,„,«//,„/._L;';;"j^„f;,^^f^'^ ^'^« "'t'ience of praisnvorthy accu\ writers. The concise nmnn^i,rwhicTMl f^^Z H '"" "' ""? ""'f'"- "> t^e Z^i it most useM, not only to thTstudents/or whomV2j'a^Zt''-'''T'^ ^" '^'^^^ ""'^^ -«' persons who, though they have mttLtiZ,TJLV^ ortgtnally written, but also to tK Sanders, Ortolan f andith^l^ '^sS^TSt 'il^.^l^-/-'-^ Y ^^\ ^■"^" ^"" ^-AMBRIDGE UNUKRGRADUATES' TOURNAi' ""^ ' """"'"" ^'''^• for themselves."~\.K\s TimkI «#«^«/ abthty to analyse tht Instit,\ F] Includ bUEST 13 TEMPLE BAR. WORKS FOR LAW STUDENTS. 21 Fifth Edition, in crown 8vo, price 15J., cloth, R BENRY MAWlNGLISH CONSTITUTIONAL HISTORY: ister-at-Law, Law and Customs," <'K; "International Law," l idied for tlie various exami] t ready, HDENCE, pie, Barrister-at-Law. opinion that Mr. Phipson has r'hich will be found very servicta raclitioners, but also for stude. It in a good many places, and! 'ell brought down to date."-i yFROM THE TEUTONIC INVASION TO THE PRESENT TIME. SMJjneb a» & 'JCfxt-iook for .^tulitnt* aiib other*, By T. p. TASWELL-LANGMEAD, B.C.L., OH LINCOLN'S INN, UARKISTKR-AT-LAW, FOKMERLV VINBRIAN SCHOLAK IN THE UNIVERSITV ANU LATE I'KOKKSSOR Ot CONSTITUTIONAL LAW AND HISTOKV, UNIVERSITV COLLEGE, LOr.'UON. Fifth Edition, Revised throughout, with Notes, By PlIILII' A. ASHWORTH, IIAKKISTEK-AT-LAW ; TRANSLATOR OK GNEIST's " HISTORY OK THE ENGLISH CONSTITUTION." or Liberal in JUSTINIAl ih, IS OF S IN ROMAN LAi M.A, FLE, BARRISTER-AT-LAW. islatton consisting of two voluil lundred paee? apiece, as compJ n 9 thin volume of a hundred I t the same time the pith off r seems to be very successfully I which might be useful to | being apparently omitted."-^ * LAW. ., cloth, HE ) also Chronological and ring for Examination! f Court. L., M.A., , BARRISTBR-AT-LAW : ATION." mg law students both in\ 'ce of praiseivortky accuA of Roman Law as contail t the reader can at oticel point. From the very eA It once refer to the orim mged his digest will retA lly written, but also to t\ he larger treatises of p\ me which will h of ser^ (J' to analyse tht Instit\ hVe heartily commend this valuable book to the study of all, whether Conservative Bitics, who desire to take an intelligent part in public life."— r/jt New Saturday. I laswell-Langmead has long lieen popular with candidates for e.\amination in Constitutional story, and the present edition should render it even more so. It is now, in our opinion, the ideal idems book upon the subject. "—.£««; A'o/fj. Mr. Carmichael has performed his allotted task with credit to himself, and the high standaid of Bllence attained by faswell-Langinead s treatise is worthily maintained. This, the third edition, will found as useful as its predecessors to the large class of readers and students who seek in its pages curate knowledge of theliistory of the constitution."— Zaw; Times. 'lo the student ofconstitutional law thU work will be invaluable The book is remarkable hhe raciness and vigour of Us style. The editorial contributions of Mr. Carmichael are judicious, and U much to the value of the worV.'— Scottish Law Review. ilni' Y""'!' *'" <^on'inue to hold the field as the best class-book on the awMwcV."— Contemporary Review. Ihe book is well known as an admirable introduction to the study ofconstitutional law for students at nstitutional growth as a complete story, than this \o\wme."— Boston {U'.S.) Liierary H^ortd. I As It now stands, we should find it hard lo name a better text-book on English Constitutional fitory."—Soticitors JourHal. ["Mr. Taswell-Langmead's compendium of the rise and development of the English Constitution has kidently supplied a want. . . . .Ihe present Edition is grettly improved. . . . We have no hesitation in lying that it is a thoroughly good and useful yiox\i."—Spectator. LI','* * *f^^> careful, praiseworthy digest and nunual of all constitutional history and Xnv/."— Globe. I Ihe volume on English Constitutional History, by Mr. Taswell-Langineai, is exactly what such a Btory should be."— .S/rtWar*/. ' I. }"c Laswell-Langmead has thoroughly grasped the bearings of his subject. \Sh that chief subject of constitutional history— parliamentary government- reat superiority over its nwnW— Academy. It is, however, in dealin); that the work exhibits its Second Edition, in 8vo, price 6s., cloth, lANDBOOK TO THE INTERMEDIATE AND FINAL LL.B. OF LONDON UNIVERSITY ; (PASS AND HONOURS), Including A COMPLETE SUMMARY OF "AUSTIN'S JURISPRUDENCE," (and the EXAMINATION PAPERS of LATE YEARS in ALL BRANCHES. By a B.A., LL.B. (Lond.). In crown 8vo, price ^s. ; or Interleaved for Notes, price 45., CONTRACT LAW. QUESTIONS ON THE LAW OF CONTRACTS. With Notes to ihe Answers. Founded on ''Anson," "■ ChUty," and "Pollock:' By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn. '5 2 ^_u 2a ff^/^A-S FOK LAW STUDBfiTS, ^^ ^ ^ ^ Eleventh E,Htfon. in 8vo, price 2ix., cloth, THE PRINCIPLES OF EQUItJf iNTE^oEo .0. rnr. vs. or sruD.^rs a^o rnn />.., J /| By liDMUND H. T. SNKLL. OK T„« MlDUtl. TKMIX., I.AKR18TBR.AT.LAW. I'.l.RVENTlf EDITION. Bv ARCHIBALD BROWN, M.A. E„™. & Oxon., & „c. or THR Mlllliiir •r...... .. . ' •••'-'■1 ■ ^.«lu,^^^, anI) t hb " LAW or FIXTl/RKS." OXON "Th„iri . ..... REVIEWS. ■""> Wovamh KiUtion of 'SmbII'. p ...V •• _" Uic book remains ivli.-.i ii ,. I.., u.. ■ . . "'" IV work on the'l'riiicinles of l.o„itv ami mvMluaWc treniiw."-taw/.;,-^l J standard book on Kq,„ty for st«dent.."-^V^„„'„J, n,vmv. Fifth Edition, in 8vo, price 6.,-. , doth ^^ m^\}^'^f °^ S^^^L'S PRINCIPLES 01 Times. book will be found vej In 8vo, price 2j., sewed, QUESTIONS ON EQUITY mn STUJIENTS T-I^EPARING I^OR EKAMWATION • ' fOUNDED ON THE NINT„ EDITION OF SNELL'S "PRINCIPLES OF EQUITY." By W. T. V/^lTF AN "Th« iiiudenti tATTS, , cloth, tVOA'ATS FOli LAW STUDENTS, 23 Second Edition, in one volume, 8vo, price i8j., cloth ?■■ EQUIT^ PRINCIPLES OF CONVEYANCING. VZ? THE PKOFESSrONX NKLL. •tAW, <0N., & H.C.I, Oxo> A Nr,W LAW DICTIONARV," LAW or FIXTURBS." lot, viz., the jcnriied edil.)r hns,, «e book It ,B the ICIghtl, K.lit'i U the (icservod repuiatioti of tli edition the hook ls well hrouB e index m KOod."-/;n,t, Journ} !jent editor hns brotiirht out i Imvmg n full xnAtx^—Soluihl '. to the hcRinncr of the study ■ to iho practisiiiK lawyer in ||J iivMluabIc trenti!(e."-Caw/7,,// ion of the First Edition, iierf I not be necessary to say morel e fact that the author, Mr, Sue] kfr, Urown. It seldom hnppcj plan or us details. Hut in thf rnt. oil the former ones, and we — /m/t Law Times. ^■"—Saturday Rtvinv. 'nnciples of Equity \ INCIPLES 01 ON. With Notes thereon -Law Tillies. little book will be found verl At* ELMMMNTAICY m>A-ff jF^/i ///g OSE 0P StmSArfS. By henry C. DEANK, I'^'J'^r /'/" '■'" '""'''' '**' '^■"'^^'^ ^'l"''y> " '""''^'"■•^ ''o^^l'ook in all Uxv Schools whtn En&luh law is /a«^./i/. "-Canada Law Journaf.. "In the parti whirh have b«n rewritten, Mr. J>ooii« has preserved the same uUasatit style marked fl^.r. 1^?*"*' 'yj' '"."^^'lilJ^ "^'''''' tli'tinKuished his first edition. After ' Wilfiams on keal Property.' there IS no Uwk which w« should so stron/lV recommend to the student enterinjf upon Real Pro- periy Law as Mr, Deane's ' Principles of Convey, ancing, and ;he hign character which the first edition Attained has been fully kept up in this second. —Law Journal. We hkc the work, it is well written and Is an ■ excellent students l)ook, and being only just lj!-. Iliihed, It has the great advantage of huvinitin ilait lllie recent important enactments relating toconvey. lancing. It possesses also an excellent index."-- ILitiu AtHittnls Jouninl. I " ^1" '',? J[°""'.' of irreat use to students tnterinir I upon the ditricultieK of Real Property Uw. It has I »n unnsually exhaustive index covering some fiftv Ipnges. —Law Times. Fourth Kdition, in 8vf,, price lor., cloth, A SUMMARY OF THE LAW & PRACTICE IN ADMIRALTY. FOK THE USE OF STUDENTS. By EUSTACE SMITH, OF THE JNNBR TEMII.E; At/TltOR OF "a SUMMARY OF COMPANV LAW." ;|The book is well arranged, and forms a good introduction to the smtcC-SoKcHofs' Journal iWr. Smith has a happy knjick of compressmgalarKe amount ofu' • ' present work will doubtless be received with saii.sfaction eijual to that I has been met. —Oxfoni and Canibridgt UndergradnaUs' Jotirnal ippy kn.ick of compressing a larKe amount of useful matter in a small compass. The fe^\s::l:'te;±-r,:;yi^'. -!•:•}« -"> ^•'-^ •- previous'^^'CJm^'y''- Fourth Edition, in 8vo, pricu 8.f., cloth, A SUMMARY OF THE I LAW AND PRACTICE IN THE ECCLESIASTICAL COURTS. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OF TUB INNER TEMPLE; AUTHOR OF "A .SUMMARY OF COMPANY LAW THE LAW AND PRACTICE IN ADMIRALTY. AND "a summary OF QUITY. XAMINATION. Y." rv OF gray's inn. .f'.K"" °'''*'^' l"*" '^'"' ?' ''*, '*."" ^* '" *>'* preface, to give the student and general re.ider a fair outline ■ li^h T^ *?** "".""' ?^ ecclesi.ist cal law, of the' principles on which it iffoundeT of the Courts bv MfiU irVlir^'^ii' ''"'^ '^? procedure by which these CcSurts are regulated. We th nk the book we^ '^^^^^}'^'ie:fi^:LZtLt:i^T^^^ '"" ■'"'"" "'"'°" Of-'horities for th^'^'^ti^'j: Fourth Edition, in 8vo, price Js. 6d., cloth, AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE. FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION. By J. CARTER HARRISON, Solicitor. IN Pi as s N to 2 SI tVOA'KS FOA LAW STUDSAfTS. Sfvcnlh Edilion. In one volume. 8vo, ,.,icc Ks., cloth, PRINCIPLES OF THE COMMON LAwJ INTENDED FOK T„E USE OV STUDENTS AND THE PROFESSION. SEVENTH EDITION, Bv JOHN INDERMAUR. Solicitor. AUIHOK OK "A MANUAL OF THE PKACnCE OK THE SUPREME COUKT " Er.TOMHS OK ,.EAD,N.; CASES." ANU On.EK WORKS ' be«n passed since .he in.bli ,„ In e^s^cS^^ , ""Y'' '*""""'' ^""'"^ ^'^^ Za-t- J%fl£;W. * ' ^^ ""' ^''^" J"'^'fi'=<> ''y a demand for a second edition."- The second cdi.ion maintain. ^^ ;:;ro?,tZ^^t";:L::i^^ ""^ ^'^"•^^^'^• wo.ks are all thus characterised . "C ,cs ol ti r'°" '""f^'^- ^"^^ -»>"« ''■' those features. That it has already rea'iri it . r""""''" ^'^ "P'""""^ ^'^P''''y-' the work on its first appearancrwns n, \ TT^ '''''"'"' '''''^^'' "^^^ ""' «'""'^'eof approval; no. needs i hrresho^IcMddnnvh ?".'"'■ ''?"^ ^^ "^ ''^^ ^'S-'fi^'' general scope and execution of the wo k, if '"^ '^^''^^ ^^'""f '" '^^^^-"" to the evinces that every care has been taken '.o ^ ^;^»--«'"\»« ^^X. ihat the present edition the modifications in the law tiri.lve Mkon ?"'' """?' '''''""''' "''''^ •"'^'"^'"g "11 the references ,o the Iris^dl i , rJ, ^ " l^^^"" ''' "'^'""' ''""'^ render the work of grcatc-r uUI ' nra^M" " T ""^ '"'''°''""'' ''' '^^'«=»'«t^d to -/m/5 Zaj. 2m J '^ '" practitioners and students, 6,rA English and Irish." "°' oniy Uuaenis^but manv *„r,-iin ' ' ■'^ - — --. :• very rcaJiOU ; attd /^^^."-S0t,C,;0Rs. JoURNlt" ''" ^"'''' ""^'^ '""^"' 'y "^ ^-«-' V '? tVO/fATS FOR LAW STUDENTS, n Seventh Edition, in 8vo, price- Mr, clotii, ) THE PROFESSION. id clear guide to the Prin d most useful elementary A «*»m SUPREME COURT OF JUDICATURE. [j m THE QUEEN'S UENCII AND CHANCEKV DIVISIONS. ... , , - , S>«vcnfh Edition. iHUHded for f hi use of Students and tht Profession. ■ Mr I„. u . "yJOllNlNDEKMADR, Solictor. AN EPITOm/'Sf TaDING- COMMON '^ LA W^CASES^' I r »"SrKV;;.aii'K„t:&^^^^^ «"U.SL. .,„„,„,„. Ian.l now we have a tl.ir.l edition dated Sep°e„Zr H,. v T ^'"•'"•'■y- '87 ., the wconj in April, ,874; |run,.,hed than the fact that in le„ than .C^^^^^L. ^Zt}^^^:!^^.'!^'^::^^^:!^:'-'^^ ^'•ehth Edition, in 8vo, nrice Os cloth J..^, . . ^ , Common Ljiw Cases." * vey- u- TiT i< 1- . --Z- -1_ Cait,„/a Law journal sEr P Jp".^P A''i^'^^""^"LER.^" GUIDE • TO ~^^ cfH:.^«ci'^^.^A™'!r l^" ™E ,"NAL EXAMINATION. ^^' Sf i^ii!H:S£- ^'- &SS |«ami,.ation1oo\e%inai. ^Hf/advTceTs'mnAi'^'? counsels to the whole period from the Intermediate 1^ inielli^ently followed, ihe a"ic ed^eKV,' fJ;;,t?J?^'^'« • ""V .h ^^ ^ • ' '^"°'' ""^ ^""'•leen and a half years intended for the L of aU Ar icied riL"l""''.°\'" ^P"'' '^94, &c. ^cfand mediate KxaminatioS IW Iml 1!^^^,^! ''''°.^T "'''. ^'^ pa.ssed the Inter- mon Law." and otherworks ^ I'^"^'««aur, Author of - Principles of Com- iTHE In 8vo, iS;";, price 6^.. cloihr STUDtNTS' GUIDE TO THE JUDICATIIRF aptq By John I.ndermaur, Solicitor. ^luaents. 'y-\ M nV/tXS FO/i LAW STUDENTS. ..IT . '*'"'''» Kililion, in crown 8vo, price \2s. &/., cfoth, AN EPITOME OF CONVEYANCING STATUTES KXTRNUIN« KROM I3 El.SV. I. TO IIIK EnI. OK 55 & 56 VlCTOR./|.:. Fidl, i M.t.on. w.th Short Notes, fly Geor.-.r Nichom Marcy, of Lincoln's Inn. Hamster nt- 1, nw. Second Edition, in 8vo, A NEW LAW DICTIONARY AND INSTITUTE OF THE WHOLE LAW; EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THF AUTHOKITIES, CASES, AND STATUTES. SECOND EDITION, revised thrmighont, m.i cofhuletably enfaf-geii. By ARCHIBAI,!) BROWN, LAW OK nXlURES, ANALYSIS OK .SAVICiNV'S OMLIOATIONS IN HOMAN LAW," BTC. Reviews of the Second Edition. nZil/^SJJ "'' ''"r''j '"T" "''"'' '" '•■'•«""'"<• /^"- ^'^'•'f-, '■/ ^«WJ to have been most ca,eMl\ '^lllfnJ'^T! ''"" ;■''?:"'"' ^" Dictionary, ami adapted it to the changes effected by ,A Juduauie Acts and tt now constitutes a very useful ivork to put into the hands ofZl In royal 8vo, price 5^., cloth, ANALYTICAL TABLES OF THE LAW OF REAL PROPERTY i Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. By C. J. TARRING, of the Inner Temple, Barrister-at-I^w. _ , ^ CONTENTS. Table I. Tenures. t.„, ., v tt „ II. Estates, according to quantity of vV Y'"'- ■ • , I '""'"■•° '"* •> VJ- AcquLsjtion cf E.state8 in land ofl Tenants' Interest, III. Estates, according i the time at IV V * '"^^ Interest is to be enjoyed. IV. estates, according to the number and connection of the Tpnants- freehold tenure. VII. Incorporeal Hereditainents. VIII. Incorporeal Hereditaments. ^^^:^^^^r^^:^^^t^:^:i^^^^^^^ taues .hich.,..] 73-. ., cloth, G STATUTES. 5 & 56 Victor i/i:, Fidh j Marcy, of Lincoln's Inn, lONARY,! .E LAW ; FKRENCES TO THK ES. UtraHy tnlat-gui. RISTKR-AT-I.AW ; Al'TIIOK or I IN HOMAN LAW," BTC. '0 have been most care/iillA much new matter, havitv^ \ the taw ; and we have no\ students and practitiotien, f 'he changes effected t>y thA put into the hands o/anyX nd of value for re/erenctA ndy book tj reference for\ .ES ROPERTY 3NE, with Notes. rrister-at-I^w. iition cf Estates in land of| liold tenure. oreal Hereditaments. oreal Hereditaments. ■ these tables which «ill be| 'S. WORKS FOR L AW STUDENTS, Seventh Kditlon, !n 8vo, price ao/., cloth, 27 i if f • '" """t F'Hce ao/., cloth, PRINCIPLES OF THE CRIMINAL MW Bv SKYMOUR F. HARRIS, B.C.L.. MA (Okos^ IJ kK ;* "•"^"'* '>'•*" •"• THB iNrr.rVTBS or CMVt AND JUHTINUN.' SEVENTH EDITION, nv C. L. ATTKNeOROUcn. ,f , he Inner TempU. liarrlster-.t-Uw. REVIEWS. ' Ha^f Pr£S: ^ "^^r^^ '^"X^:^, "^^ V-^^ - "-own text-hooic. of the rnner Temple, Harrister-atLaw. 7 re,,,o nsiWc"^ Hr h k°" ^l'' ^'"'^'" ^" Atienhorough ^?.rr' "rj'.".^"""" career of .s^U^J Tltu^,^^^^-^:^' -o,U up to date, a'nJ '^ 'he ..adin« stude^f .x.LT';:? Jhe'^lT^S £S^f i;^.^':!::;;';"^^ «« P^P.rin.n.r e«.„in„tio„. ■^ not kely ,0 be mterfcred with. . . . We hrvri^rV.''"'""* «"J°y«d « popularity which cordially commend it. "-/.^7..^7«rf,«/-,>«r),'/ "'''^""^ "^'•""Bh the new edition and can w .c^ .s so uscru at the University ^'^^'^i^^o^t^f^J^ ::::^::^,^^;^:^ '^""'"^' '"^ 1 he characteristic of tlie present F.ll.Ir.,, :» .i. . ^• exposition ' proclaimed hy the'.^ «;««„/ AuenT''"''"''."': '° ""= '""'' "^ "" character of ' a concise which had arisen in successive edi.irnf.and h^t"^tedS^Vr'=["'''' ""'""' '^^'^y '^^^ ""e.^enc of ex^sjnon. In both respects it i, .iow an excXnt ,tiden.° bo^t "^^'""''' •'""""" ""'' clearness ^^;^2:^.i:2=S;,:i[;--s^^ «^ r^a«« /^ «w,/,;^ the praise we betLedL J/, f^^ *'Vl*S'' "''' ««" Edition, we see '>'"^^^JdedandtZprcvisions7t^S^^^^^^ -J'he recent cases hJve relatmg to Sumnmry Convictions, n ZkisiZ lf/,""f f ' '"'' ""''"'^ '« ^^' '^'^Pt'r for the ^/W.«A' -Solicitors' Journai!^ ^ '"^^ ^''' '"'''""*'' "/ Crm^V,*/ /«„, handZTo/pZc^i as iS^tylnoS'fft^^^^^^^^^ room for such a useful labours, to the task of analysing th law Mr fij, "^/"f' ^[""*<>'"'d, by his previous work qualifications well adaptfd to Zre u !1 Z, / ' '^''""f^^ '" ''""- "-^"^ hi! present he had set before him, Thlt obJecZTota, 1, / 'accomplishment of the object which Book II deal "^^.''''S.'" : of Pe^ons capable of com P'-V-h........ xnn part ol ,.„ work js ex.remely-wSi'Ton^^^iie ?,1 I 2 28 WORKS FOR LAW STUDENTS. Second Edition, in crown 8vo, price Sj. 6?fv °"- '}"^^ Introductory Chapters on Sources of Law. Marriage Adoption, Partition, and Succession. Bv William M p rnr-tT, aL b i? ' Civil Service, late Judge and Sessions Judge of Tannx ^oghlan, Bombay cloth, lNKRUPTCY ; shape of Questions and tors Final Examinations mportant Decisions since " Principles of Common ILLS OF SALE, ND THE PUBLIC, e generally. Part II.— of Sale and satisfaction list Creditors. Part IV. endix, Forms, Acts, &c. told exactly what to do and brmation in this little book." & PHRASES. L EXAMINATIONS. :itor. come across a Latin maxim IRISED, INITV COLI.EUE, OXFORD ; Y STATED." )th, ONAL LAW NJOTES. NITV COLLEGE, OXFORD. ;ipal cases illustrating Con- -rown or persons under it, >dy, but also the mode in jmas gives a very clear and which they are regulated ; liar leading cases."— Zato iSES. With ces of Law, Marriage, '. COGHLAN, Bombay STEVENS &. ffAYNES, BELL YARD, TEMPLE BAR. 20 Second Edition, in crown 8vo, price 12s. 6d., cloth, "'•'""• '" "own 8V0, price izs. 6d., cloth, ..THE BANKRUPTCY ACT. 1883. With Notes of all the Cases decided under the Act • The CONSOLIDATED RULES and FOR\f<; ,«»/; -r r. FAR AS APPLICABLE TO bI^IkZI^uS^IS^ 'l^l^'J' ^.^flf ' ^^"^i. '"^^ '^ THEREUNDER ; THE B.LLS OF SaLE ACTS^ 5,8 AND 882^ ^''''''' '-' ?eettd^S?entaS^. 'S'- ^:^tl£T^^^^^^^^ ^ ^osts. Court; <.mU Copious Index ^ Bankniptcy Judge of .he High °' s^l'^'-.Lt^. «;i21'JJ-,f Q-. *-, !J'„CHARD RINGWOOD, M.A.. ,Se»„d Ediiiou. ., K. R.NOWOOD.IZZS.r;:C— '•■ This IS a very handy edition of the Act and RnU, .-,. r ^T%^ , ^"' ^•' P"*^^ 7.y- ^•' sewed, ~ "" LORD WESTBURY'S DECISIONS IN THir ^^arbitSn^ P^^}^^^^^ ^N the albert RtrriftUat-Lal^Q^- ^''^'''^ ^^ ^«*~^'« «• ^^^^^^. of Lincoln's Inn, { Second Edition, in royal 8vo, price 30s., cloth, A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES T„. B,.s o, S... AC.^.^^- JS. .^„ ™_^.,w 01- VOLU.T..V Bv THE LATE H. W. MAY, B.A. (Ch. Ch. Oxford). Sec„„dJd.,.o„,,h„„u^hJj,„vi^^^^^^^^^ Property Act,," yh ^edition, b^lhe l«T R Gr"™™"" "'"'«" Somen's "In conclusion, we can heartily recommend this book to our readers, not only to those who are in f/.^^<-'"'''""^u' ""^ ^^° "?"«'y *an' a classified list of cases, but to those who have both the desire and the eisure to enter upon a systematic study of our law."— So/iciiors' Journal. ^ "As Mr. Worthington points out, since Mr. Mav wrote the 'Bills of S.ile Acts' of 1878 and V882 have been passed ; the 'Married vVomen's Property Act, 1882 (makmg settlements by married women %-oid as against creditors in cases in which similar settlements by a man would be void), and the Bankruptcy Act, i88^.' These Acts and the deci- sions upon them have been handled by Mr. Worth- mgton in a manner which shows that he is m.ister of his subject, and not a slavish copyist of .sections and head-notes, which is a vicious propensity of lis Table many modern compilers of text-books 01 Casc.s (with reference to all the reports), is ^mirable, and his Index most exhaustive."— Z^Tf "The results of the authorities appear to be given well and tersely, and the treatise will, we think, be found a convenient .ind trustworthy book of reference."- Zrtti/ Journal. txamming Mr. May's book w» fin,i :» guide in this confessedly difficulf sublec? Th^ Tf.'l^f''' ""''J?^' ^'?<* ""= work are both verv eood as an^ddhion'i^'ihe" wf Stl^'''"'- ^fYVwork logue of law books conLSusTyS^ecutedT: can corroborate his own descripdiJ^ "f hulabou^' that no pains have been spared to make thV^^^ t: a? the ex'-nff '=^"'=^' ^.^Vsibll^ife^oi^J o?a^ny1S.St%2tT'?^^Vfei!---- I i sc sc sr£y£jvs 6. haynes, bell yard, temple BAR. ^ In one volume, medium 8vo, price 38,.. cloth ; or in half-roxburgh. 42. A HISTORY OF THE FORESHORE AND THE LAW RELATING THERETO. With a Hitherto Unpdblished Treatise by I oRn h*,„ t t, , "DE J.RE MARIS." A.O THE ThIRO ^^.0^ orL^^rE "rv^^^^ RIGHTS OF THE CROWN IN THE SEA-SHORE With Notes, and an Appendix relating to Fisheries. By STUART A. MOORE, F.S.A., OF THE INNER TEMPLE, JARRISTER-AT-LAW. late Mr^Hril^L^' lomirtally a third edition of the he Sei\w! 1 f y °" 'r' "«'"" °^ the Crown in the bca-shore, but in reahty is an absolutely new production, for out of some 900 odd panes HaH'.* essay takes up but 227. Mr. Aloore &riuen a book of great importance, which should mark an ^h^.°thV^''Hn•?^ ">*= "8*'''* °f ">«= Crown and the subject in the htus tnarit, or foreshore of the kingdom. Hall's treatise (with Lovelana's notes) is set out with fresh notes by the present editor, who IS anything but kind jr disposed towards his author for his notes are nothing tut a series of exposures of what ho deems to be Hall's errors and mia«Dre. mentations Mr. Moore admits hi» b"o be a ^» fT ''^« °PP°«'= s'de of the contention sup- ported by Hall, and a more vigorous and argu- mentative treatise we have scarcely ever st-n Its arguments are clearly and broadly disclosed', and supported by a wealth of facts and cases which show the research of the learned author to have been most full and elaborate. . . . There is no doubt that this IS an important work, which must have a coDMderable influence on that branch of the law with which It deals. That law is contained in ancient and most inaccessible records ; these have now been brought to light, and it may well be that important results to the subject may flow therefrom. The Profession, not to say the general public, owe the learned author a deep debt of gratitude for providing ready to hand such a wealth of materials for founding and buildinff un arguments. Mr. Stuart Moore Ls written a wor^ found h"""'.'- ""'T '''^ <:°"'«=n«ions are ut?erinn founded, at once become the standard text-book on " Mr, Stuart Moore's work on the title of thf Crown to the land around the coast of England lying between the high and low w.-iterS^ something more than an ordinary law b^k It s and the^Vfih*, " very interestinj,/one, of such and f!^.c .! "Shts exercised oyer it from the earliest Umes to the present day ; and a careful studv of the facts contained in tlie book ^d of th^ a«u menu brought forward can scare.. ^a\\ to convince the reader of the inaccuracy of tr.e theory'now " constant y put forward by the Crown, thaT w"Xou° th« l^!.T"i.?u'P^?'=J' '=v''''="'-« to 'the cowrary whVi • *''«:'» adjoins riparian property, and C^ aUTo^^''to"th'e'^'w;;i'r'=of ir^^d'^ ^ nianor The list which Mr°Xo?e%tsoftlacef 7^1a ">='J'»;^'«"» of foreshore has^Cn a& raised, and of those as to which evident on the iwrh«:,'f^ !""'"«''' '^'^ P"»'«'= recorS^isvalu K„ 1: u^}" *'y ."•» "•««"« exhaustive ; and the the k>r5°„"fi certa nly find a place in the'libr^y of the lord of every riparian manor. "-^5^/.^ /.^^°' In one volume. 8vo, price 12s., cloth, A TREATISE ON THE LAW RELATING TO THE POLLUTION AND OBSTRUCTION OF WATER COURSES together with a Brief Summary of the Various Sources of Rivers Pollution. By CLEMENT HIGGINS, M.A., FCS OF THE INNER TEMPLE, UAHRISTER-AT-LAW. ' ' '' " As a compendium of the law upon a soecial and rather intricate subject, this tr^tise cS but prove of great practical value, and more ^T^'i-^ '°r "'°'* i^° '"'V* "> advise upon the nstltution of proceedings under the RiverrPollu- r./^^^""!?" Act, 1876 or to adjudicate upon r/i«« ^^ ^"^' ' " brought." _/mA ^aw .u"k^'.'^^^"'=°'""'=""^ ^'f- Wiggins' Manual as the best guide we ^^f^^."~Pubf^ Heaith vx-i...ij; v,ourt Judges, Suniiary Authorities aiid Riparian Owners will find in Mr K "' ■Treatise a valuable aid in obtaining a clear notion of the I.aw on the Subject. Mr. Hi^n" has accomplished a work for which he will rfadily be recognised as having special fitness on account of ^h^r'S'"'^*', acquaintance both with the scientific .^^ W il^"'' """^^ subject."-ZarC^^ Ttmi7:;^i'r:^t °" ""= b^iksof Hver-- "Mr. Higgms writes tersely and clearly while !'^^r^f:^."?:?11?'f, -ganged tLt it is a p^e^ur' ,i,l r"- "^■"|^.'"r inrormation ; and altogether the work IS otie v/hich will be found very use^I by in^^cT^ '" "*' '"''^'" '° ^^''^^ it'^eTates.-Z Stt '=°'"P?"^' and convenient manual of the law your^j:"^'"'' '° '"^''^ " relates."-.S-iv/W IMrLE BAR. alf-roxburgh, 42J., )RESHORE ERETO. Iale, Lord Hale's ll's Essay on tue SEA-SHORE. Fisheries. A., "^ *??"<•'"¥ and building up rt Moore has written a work 5 contentions are utterly un- ne the standard text-book on ■e. —.Lanu Timet, Dec. ist. in his valuable work on the 's work on the title of the ound the coast of England gh and low watermark is in ordinary law book. It is nteresting one, of such land ed oyer it from the earliest ay ; and a careful study of the book and of the argu- can scare.. '"deed, has been to a -:onsiderable extent entirely rewritten. .„rr .1: ?tayn«'s,/«">arks on damages in actions of I c an«.h ' • ^^"^ ='«"='= *"•> '»''" 'hat in surh act ons the courts are governed by far looser orin- mt^iw"".'" '=°"'r^"^; indeed, somSs'^kis lX,^*'i.'°,'^y '■'"=y?™ governed byanyprin! I PutatLn fn/" ""'"?' ^°' "J?"" '° 'he person or I han tiv» ' "^PP'?. a. judge cannot do more |man give a eeneral dirert mn to '*"• in-v • ;«- Xn"I^^^dtgrt^h^'d"tt:l:tiSTr' -^^^ damages ' for%xamp!e-s1^ke7lnd mXf ^«-'*';! man more heavily than a ncwr nn. ?"'".« "^h injuries to property hoover • J V".'°"? f*"^ ' exemplary ' daiA^fes' cannot elr. \'".'^"^"^' O' cases, beawarded.Tut must be wXh" '"'■^"''' tract to the actual harm si^t.-iine'r''''' ^' '" *=*"*■ of thVrueinthireS'^'^rhic^' ■--«-?„. has been made. The editor, mi^^^° ^''"^''"n by the growiue bulk of tt,» kL^*^' '"'•'• "'anied not included ally fresh Amert?n' '^e editors have that the omissio? w'^'ui^'^oSe'")^; ^h"ou^I^'l that the whole work has been thn 'nl.^yf. !!'.°:'^'Af.*''' \f tut as one of the ,est te^t-tcoklevertriZttl^^^^^^^^ ''^''^ ''^^'^ \n the v,ords of conunendation that it deserves. It is LZk ha/^fyV' '" f^'"' "^'^ p^w-M<,//^ "-Canada Law Journal. ^ork that no practising lawyer can m :b H .as IS 2 32 STEVENS &- ffAYNES, BELL YARD, TEMPLE BAR. ^n crown 8vo, price 4^. M., clolh, ABSTRACT DRAWING. Containing Instructions on Soh-dtT'"^ °^ '^'''"''''^' °^ '^'"'' '""^ ''" "'"^'^•''^'^^ Appendix. By C. E. Scott, "The book ought to be perused by all law student* and articled clerks, -Red Tape. Second Edition, in crown 8vo, price ^5„ cloth, THE LAW RELATING TO CLUBS. By the late JCMN WERTHEIMER, Barrister-at-Law. Second Edition, by A. W. CHASTER, Barrister-at Law. Zi IJEl _ A convenient handbook, drawn up with ereat judgment and perspicuity."-/J/<,r,M„^ />„,/. in Ju^ ""' ' ^'"^ .interesting to those interested .< » ""anagement."— Zaiw Times. „!..- "j^' n'"'""''' ,'»,l*'°'"y of 'he cases is com- plete and well arranged."— ^a^wrrfay Rtvie^v. ,.,wJr'j'''rl'* J'o'-y.neat little book on an intetestinR subject. 1 he law is accurately and well expressed.' — /.rt«/ Journal. tk!?*''" i? ^very handy and complete little work. of eL?„ K .'"i^" "■".;.'•""= "*«'"''' '■« on 'he table of every club."— /'««/ Cowr/. m < TIT- -n « ^" ^^'°' P"^^ ^■^•' sewed, TAB;^ of the FOREIGN MERCANTILE LAWS and CODES in Fo/ce in the Principal States of EUROPE anrl AMPPrr a r! ^^^^ By InSvo, price if., sewed, A GUIDE TO THE FRENCH LAWS OF 1889, ON NATION- Inone volume, demy 8vo, price loj. 6c'., cloth i PI'"¥J.?^^^ °f '■'HE LAW OF STOPPAGE IN TRANSITF JOI |By ] In 8vo, price los. , cloth, THE TRIAL OF ADELAIDE BARTLETT FOr|tH MURDER: Conin pf.> anH K'»,m*c„.i w . t;. ,-. , . „ * '^ \Ji\m MURDER; Complete and Revised Report. Edited bv FnwApn R.,AT~TrA*' Q.C,^m"p:"^ ""^'"P'^' «""^'"-t-Law.^ With a Prefa'c'e byXvAR^o cZA^K^i In 8vo, price loj. 6c/., cloth. A REPORT OF THE CASE OF THE QUEEN v. GURNEY AND OTHERS In the Court of Queen's Bench l.efore the Lord Chief Justice Cockburn With 'intrn I duction, containmg Jjstory of the Case, and Examination of the Cases at Law and Equity applicable to it. By W. F. Finlason, Barrister at Law ' Tfl] With , In royal 8vo, price JOs. dd., cloth, fill 111 T\n ■ AmVATl An ir% ^««w^«- — I iBa xmm\A ur tyum m WAY OF BEVIVOR AHD SDPPIEMESI.I TEMPLE BAR. ng Instructions on Appendix. By C. E. Scott, the framing of abstracts of title istrative appendi)c."-Xf >ce by Edward ClarkkI By Akc,ub.m.d Buo/vn A a Edi 'T ^ "■''^"'"- ''''''''^ ^^'''°"- Middle Ten.p,e, Hard 1^1 ' "'' ^^'^"' ^"'^ ^•^■^- ^--. ^^ the OTHERS, In one volume, 8vo, price 2Ss., cloth, .ockburn. With Intro-I ion of the Cases at Law] rister-at-Law. AND SUPPLEMENT. us Leigh PembertonJ THE LAW REL/TING TO PUBLIC WORSHIP- iu,e™L, The p»ut'u^,tr. jlrr;""f .-.^^.-■■1' ?;»- »- ACI i ih. v«i„„s Acts of Unitomi,^; ,|,e Lilur,.;;;';/ .'(t "."Z" T'*"'"' compared >,ith .he PKM„t Rubric; ,he Canons Th^ A , , '55/. ""if 1559. lions. Advertisements, and other (ir ! Ll n°"L ! 'f"' '""' "" '"J"™- S.W.KO B.,c., LL.a, of the 1^t1^:ZZ:'JZ. ^"""""* "' i ! 'S 33 a! 3 34 STEVENS &- ffAYNES, BELL YARD, TEMPLE BAR. c^tcbene anb ^a,.nr»' ^crir« x.f ^trprinta of the (gad,, JUtpartcra. ' SIR BARTHOLOMEW SHOWERS PARLIAMENTARY CASES. In 8vo, 1876, price 4/. 4^, best calf l)inding, SHOWER'S CASES IN PARLIAMENT RESOLVED AND ADJUDGED UPON PETlTfONS &- IVRITS OF ERROR FOURTH EDITION. CONTAINING ADDITIONAL CASES NOT HITHERTO REPORTED. REVISED AND EDITED BY RICHARD LOVELANl) LOVELAND - --^^^^^^:^;^r ■:— -- -;-^ - -^:«^^ Cooke Snnini'a'rnLkeVs'N^^^^^ "'"rf"' '""/'."^'"" "^ '''' ^^'^l-'"'^ ^' ^'^''-ve typi;i!;s^:S'orb;::!i'°;'t'r;;;;'|;>;r;^^ oId./hshionep ace, should be without a copy of his edition of Kellewe.'-tV»/W« La7v JoNntal. .n!»T* ''''''^m''^? ■''■^'"■■""""''^ ^''"'on of Rellewe, reprint that has nppeared at any tinip. It is a ,^f.™i.^^"'°'^""''''"*P'''"''"K. and forms a most interesting inomunent of our e.->rly legal history RooU Tl? f° "'? r"'^'^'"^' of work .4 the Yea^ Book of Edward I. and other similar works wliich have been printed in our own time under he auspices of the Master of the Rolls; 1 n t i, far superior to any of them, and is in his re, pec 'Bo long be errors i correct< I highly creditable to the spirit and enterprise c( I private publishers. 'J'lie work is an important link I in our legal history ; there are no year hooks of the reign of Richard H., and liellewe supplied the only I suhstitute by carefully extractingand collecting all the cases he could find, and he did it in the iiioq I convenient form— that of alphabetical arrangemeni ! in the order of subjects, so that the work is a dige';! ' as well as a hook of law reports. It is in facta ' collection of cases of the reign of Richard II j arranged according to their subjects in alphahelic.i i order. It 15 therefore one of the most intellieihie > "T iP'eresting legal memorials of the Middlti I Ages. — Law Times. ' Kely: CUNNINGHAM'S REPORTS. In 8vo, 1 87 1, r,rice Cunningham's (T.) Reports in K. I!., 7 to (ox rendering the !,av. ■ of England Consideration of boih Houses of I Corrections. By T jomas Townsen ca«Pemi?lld"''A'"' '-""P!': *''''^'' precedes the «?PnJ i ? •■^Propc'-i'.r rendering the Laws 3L^,!:!L^t4"!--Tn'?-"''""i'«'"" thf volume a TJl^Zl^.' irTC "' '"'^'"'/ "'^^penaenioi the value Of many of the reported cas... That chapter begins ^e^n^onl*;'"^^ °'?«''*i '^■', '■^■'■- information^ of every people, to be printed in Lifers v.f gold. Thev are as foflows : 'Nothing conci:;ccs more to the Z/' v., calf antique 10 Geo. II.; to which is prefixed a Proposal clear and certain, humbly offered to the 'arliament. Third edition, with niimerou o BUCKNILL, Barrister-at-Law. peace and prosperity of every nation than i;ood laws and the due execution of them.' The history 01 the civil law is then rapidlv tr."..".-.-i Next » history is given of English RepoVtera,' beginning with the reporters of the Year Books from f Edw III. to 12 Hen. Vlll.-being ne.ir 200 years-and afterwards to the time of the author,"-.( «««e them or revive tl.e.n when dead It ," rer y. The statements of the e all clearly and ahly given, s, imdcr the able editorsliii, lisement, 'he welcomed hy ies to complete or add to ta.nlys„rpns.ng ,0 see with wh..t facial accuracy an old vol...i,e of Keports maybe produced hy these modern lu.hhshers, who.se good taste is oidy equ.-dled hy the.r enterprise. "-C««W« Lau, Journal. RD II. itiqiie, LE SECOND. lerbert et JJrooke. Per rinted from the Origina > the spirit and enterprise c( 'J"he work is an important hnk there are no year l)ool/ ^L/'"'' °^ ^■'"■'^ Keports/-CV,„«,/« Ta^ KELYNGE'S (W.) REPORTS^ ~~ ^" ^^°' ^"^T^^ P"ce 4/- 4^., calf antifjue ^""^^t^^^^^S^.^^^^ - Kmg.s Bench, .c, .om the _Edition. Tbifd Edition. "irone'l'antS; "S ^To.'^'^"^ ""^ '" "^^ ''^^' 1873. ORTS. ich is prefixed a Proposall , humbly offered to the| edition, with numeroiii ister-at-Law. ^ of every nation than ,c;ood :utionof them." The history len rapidly tr.-.c.-.-i Ne-i .=[ inglish Reporters, beginningi the Year Books from i Edw.f —being near 200 years— and ne of the author, "-■(Vjwda'ii KELYNG'S (SIR JOHN) CROWN CASES. \v ... ^"^^'O' 'S73, price 4/. 4.r., calf antique. added, Three Modern Cases vi. Arm.? iT-^'. """"^ °''^^''" ' '° ^^ich .re the Qi'teen and Mawgridge ' Thirct Edirn^' '"^'/•^'''' "^^ ^?S -nd Plum...er. |importat«anti-';;iuabi;Tth:=;;?q"u%°^ fo°the%;Sn"'"^sl'="fS-''^^'=n-nd Haynes Messrs. Stevens .ind Haynes. Little do we know (WnS.^ ? ' " ' " ,?''°"''* occasion arise, the » 'he mines of legal wealth that lie buried in the wiurunn ^h"'°''>^''^'"^"'^'l"^' f"^ 'he prisoner, d law books. But a careful examination, either of tTe hw of hiah r'"""* " T^'"'= "i^^' """"" "^ the reports orof the treatise embodied in the volume thLtin " r 7^7"" ^""^ proceedings in relation I now before us, will give the reader some idea of the "'^'^^'°- -Canada Law Journal. s 86 STFA'E NS &> JIAYNES, BELL YAKD, TEMPLE BAR. Second Edition, in 8vo, piice 26s., cloth, A CONCISE TREATISE ON PRIVATE INTERNATIONAL JURISPRUDENCE, BASED OX THE DECJSIONS IN THE ENGLISH COURTS, Bv JOHN ALDEKSON FOOTE, OK ''NCOKN'S ,NN, ...M.I.,.k's ..K,;A., M K>,A..I,.,ST AN,. SKN.ON W„KW«L1 SC.OI » ANU HUMAN LAW, ,NN.S OK LOU..T KXAM.NA T.ON, ..H.AUV 1 liHM. .g^ "''"*'^"'"^"« £ No. C Nos. C N this vis' Journal. cL!^;!:::i;:;;!:;:V;;:,urir^7''-""'' "- '^-''-" •— f"i toai.whohavctod.aiwith.he fran>ewo.k of private inteCiolal a no f 1 ."T ""' T- "" "' "'•"'=^'"= """• = ""^ '° construc.a Enghsh Courts which have sZ s X^^ ^A ^ h \ '"•"'" "° "I"''' "' f""" J"'''""' decision, in form this valuable n.aterial tTu Rlr 11 l.-f rV' 'r°'"'"''"8 ""^ "'•'•''nKing in a concise fruit. As a guide and I s sta o he ^ 1 ' , r" '■'■'"^' "^ '<;>°wledge and legal acumen bear «uch good while a table of c^ses anra elnir.. • t ""T,'"''?"''' '"^' "" *''°''= '^«''"'« *'" l-' invaluable; Stan^iard. " ^'""^' ""'''' ^'"" '"»'''« •>"" '» fi"« criticisms seen, 10 us very just On . , ^ . *'"' "" ^'"P" "■"'' °^ '='^- ^ost of hisl addition to our text-books a >d we e\pec i win r.^Hrr T '■''^°"":''"^ l^^' ^^'^'^ '-»ti- - a usefu -TH, 7ournal^7.,rU;,.J:::::::T;;^:j:^;:^^ -^ .nto the hands of practising lawyers, of th.fl^aSS^el^^tl^^l^r't^ta'^IV?''' ''t""'r °'''^^^^ i^ as one .e.i alike in ch^^rit J- ! ^.^'1^^ ^C:::^^::;:;" ^-'■'- -"' — is the''c:r::2tj:::;r^::^!:: "ti^rr^ ;h^ ; • • ^-^ -^"-^ ^-^ ''"'"'^ °^ ^''- ^°"«'^ ^-^ Property, Acts, and I'rocedure M FnT t . *'. ''^^"' ""^ " ^'"'^"^ '"'° ^°"' parts-Person^ an attempt at codFfi ation Tlowever It ""1"^ t "' "" T^ "," ""' '" ''"^ "»^ '"'*"'•'<' « author' ..iduity and c-xuacitv Th.V • ^ ' 7 "'*" " '''*''"' '''"'^'' ''=''•="* high credit on th. ■uore than guide hh" T "y will enalJe"hi„ '.T."! "'7^' '" """'! '!"= ""'"="' = ' ■"" '"^'^ *"' ^^^^ "-^ of the text easy and fruitnll'-lr^Jl^.''' '" ^"'^' " ^^"^'^ ''' "" ^"''J'^'^' »' *"' '«"'1« 'he rendinj No Nof Nos. C IVos. CC N0!». will au.ply repay perusal by tho eThoTe in, n 7 . '^ ^'", ""'"' -^"""ived and executed, thati. pointbut;her.tlLtorydispo^l of anV ' "'^J'^'^' "'^V be not the actual decisions of a knotty 7o>,n,a/. ^ ^^"^^ ""^ ''" exanunation pap^r."~O^Ji,rd and Cambridge UndcrgraduaUi Journal. ' — .-— . <^. -u cAuiiunaiion paper.' —C.v&/-^ our'lSrn.'':LZ^'r!!.^:?^r'"/ ^-.^ r- °' f'- ^^""-'''■^■f-'-. Mr. Foote'sbooki,.ir. The work is execuudwit; much'aLllUvTnT", "f^,* '"■'' h-»PP«=ared .„ the English language. . .',. An , hav. .0 consider .uestionsVn ^It'^rraio*'", lt""-W.wZ'' "' '''^' ^"'""' ""' "" '"'"^"^ ^^' '«"« ' United •Vos. cc: An A TEMPLE BAR, loth, ON ?1SPRUDENCE, /'/.AS// COURTS. ■ AN1> SKNIOK WHKWKLl. SCIIOI.AK UDKN r IN JUKISPRUUENCB ly TBKM, 1874. STEVENS &- f/AYNES, RF.U. YARD, TEMPLE /JAR. 37 THE ill lawyers who have to deal with illiike's valuable treatise, twenty iiu-ls of tills nubject have greatly iniined, and that the conclusions Moreover, Mr. Foote has done to all who have to deal with th« •. i'ri'"''' '*^77, price 15... clolli, A DIGiJST OF HINDH lAw AS AD.MINISTEKKI) IN TlIK rntw-r^ I l^ U U LAW, AhhANGED AND ANNOTATED ''yJ^-^S^^^^l^C.UA^^, M.A.. Advocate cfcla.. Madras. DUTCH LAW. a.ul of the IliPh Court of t le Smnh aL" ,.^"'?V.y "'^ '''^" ^-'T^ o^ <^'>"d H' 'c of Mr. Hugo 1)K SIoot '"" ^'^'*'"^"*=- ^'"' i-'-'^csinule I'.,. ...u,' ^^'^rl^^KlSSMl W' "^MAN-DUTCH Advocate. Translated from throrio nal My i^'r'"^^ ''^ ^- '^V' ^^'^^'^'-x. Inner Temple, Barristcr-at Law .3">f- r t ^ '"^J-.^- ^O''^^' LL.H.. of the ' siuulc I>ort!ait'i„jh; SilnTy' DKCK.^ro/i'780! '' ''^^ ^^"'^^'''^'- ^^'l'" l"- *,• Vol. ir. can be had separately, price 50J l.ons and Possessory Actions, transi" ted tto ,Sh '?f.^\°j"-'"y. ""eluding Injuncl Titles I. to III., Uo.,k Vll/TiUe VI ok v?TI Ts^^ "««''^I. and Hook \LIII. Titles I., XVI u, VVYn! ^r' v ^V """"^ ^^- Title I\., I'andects, with a Scientifie .nnd Gene «» InS .V.: ^v' ' S':"""*^"'"y «" ">^ Kon,an Civil and Roman I)utch, and EnJkh I .w 'ii f'""; ^Explanatory of ,l,e and Practice, and Decisions on!" SuSe tW r T' '-'J''"" Knactmenls (, AsiE Chi rry, Barrister-ai-Law" Afir j nvhr J''';",' T*^- ^^^ J^''^ I- Court, Ceylon. ' ■""^"'^•^'•■. '"gn Court, Madras, and Sui)renie '''^^^.!%§IM3£h&s^ '^.h CAPE and copious I'ract cal Forn s subioin"^ i,> V^ IfaWJilvALLY. With suitable .cvcral Subjects treated of ' % ' ' I ' vj;^.' "^''^^''"ff ^'^^ Practice of the Tubhc, and Conveyancer, etc. etc. ' ^»'"^»«-7--it-Law, Notary THP TMTDnniTr'^?/?*?^"'-^^^' l"iS*^ 3i-f. 6^., boards, ^"^HiGraj^TK,? J.?, JK JURISPRUnENCE OF A. F. S. .U.SUOK,., B.A."fih\[„''„TTlt,ettS^,«aX;„ ■"»-'-«. t, SELECT THESES ON ThTEaWS OF HoluND & 7FPi4Nn celebrated Controversies 1 thf i i Tp !) - 'l^'"™"^ ^^n^e of the more Advocate. Translated by C:"A''roRFN7fcr';!;" . ■"^.^- ^- ''^^'^ "^'^ ^^'^^^'^'■, ^V^th a Biographical Kotij^ of ^t kS^ ^^gt^W^^j^lif ?"• THl ( |li)' T. An Va " I liis ihcrs ill lilic point. A S i'lie a laii artiL-loi Jlioii, he fe Ins, wherci Ilaw relati j!tu(leius in [wisely bee '1 hisstau Iwjoint-sto [ill soljciior; . "h litt Jstmictits to Intent —ace Ifcaiich ofs EMPLE BAR. :e i2s. tut, AND USAGE. Author of "A Treatise on .•ne (miiiolfuil lo he welcmnc i„ ■Oenerul at Mudraii han drawn :etl a work of value alikn to the Jiililii- jiiriHt. of the (icience of jiiiinprndei,, o UsHKe, H,r heartily reconiiiie]„i [/ LAW, ^DKAS I'KESIDLNCY ;nernl, Madras. in tlie Hollandsdie annotated by I). ]>. |,p ity "f the (ape of (.,„„l the Caiieof (iood II.,p(; With Facsimile roamii '/J!!:f^^f^l!:!!ff:. """■'' ^^''^^ T^i^piB BAR. m THE 35ar examination ^Inniial FOR 1894. (In Continuation of the I)ar Examination Journal.) I'rice 3 J. KXAMINATION I'AI'liKs, 18..3 HKSULl OF KXA MI NATIONS NAMKS OF SUCC|.:SSFUL CANOIDVITS 1894- w. D. EDWARDS, LL.B.. OK LINCOLN'S INN, HAKHlSrEW-A T-LAW. : ROMAN-DUTCH lies by C. W. Deckkk, '. Korzfi, LL.H., of ihc ! Transvaal. With 1-ac- \os. D INTERDICTA, ppci ty, mcliiding Injiinc- ide-notes;viz., Hook\[. -^yKook XX. Title I\., :t's Oimmentary on the I otcs Kxplanatory of the s of Ceylon Knactnicnis Ion, etc. \\y John I. , Madras, .ind Sui)reiiie , I" 8vo, price i8.f. each, cloth, I viTvif i^f x^^.^'^^ ^O^^NAL, yoLS.iv.,y., latton of i„.por,ancc: to .Sttulen^: and le! ilSSn.' "'""^^'^ ''^ ''*^'=*-'"' ^^S'^" _J^^J^J^;__TVSSKN AN., vv. i,. KDWAKi.S, liarristers-at-Law. li)' I" 8vo, price 8.., cloth, SHORT PRACTICAL COMPANY FORMS T. KiJsrAc Aiitli()r VAU.HAN w;;,;^^;:;^ ^c'Li^xJ^^CSi ;.S:i;r (.OF THE CAPE ALLY. With suitable ng the Practice of the torney-.ti-Law, Notary PRUDENCE OF in van der Made, and Votes. Iranslated by at-Law. D & ZEELAND. tch Jurisprudence, a.id ine some of the more G. VAN DER KesSEL, iw. Second Edition. E VVal, of Leyden. Sixth Edition. In Svo, price 9^. cloth. A SUMMARY OF JOINT STOCK COMPANIES' LAW By T. EUSTACE SMITH, OF THtt INNKK TKM,.LK, UAKKISTBK.AT.LAW. I,„"n!,'i W"'"',"' "''" ''--"'Jl^ook tells US that, when |.aw relating to jomt-stuck coinp.inies I .v„ * seiy been at tlie pains of giving his anthoritv for ^11 his statements of the law or of practice xsannjied swii to dalr. h is imlrcd alilf ami wtinl.irly Ircniisr on a somcwlial (lilti< hraiiili (if la«-, m the IiciIhk ri' of which milhor'!! knowleilRc of komari nti., charncterised Mr. CaniplipH's ' iMYf of Negligence ' ns a ' very sooil hook ; ' niul since very gooil hooks arc hy no means plentiful, when i-oinparcd with the numbers of imliirrriMit ones which annually issue from the press, we think iW III 8vn, price lo.f. Ch/. w/. THE LAW AND PRIVILEGES RELATING TO n?\^JJ?EK^^"^^'*^''*^ ANt^ SOLICITOR-GENERAL Uh ^tlNOLAINU, Milh n History from the Earliest IV-rioris, ami n Series of KitiRS Attorneys an. Attorneys ami .Solicitors-General fro.n the rci-n m lirHarriste!'.nt-Enw° "'' ^'''""■'''" ''^' •'• ^^'' ^O'^'ON-Kys,..:, uf Li.icoln'. BIBLIOTHECA LEGUM. ~ In i2nio (nearly 400 pnges), price 2.r., cloth, A CATALOGUE OF LAW BOOKS, mchuiing au the Repc m the various Courts of EnRland, Scotland, and Irelan,! ; with a Supplement lo In small 4(0, price 2s., cloth, beautifully printed, with a large margin, for the special use of Librarians, A CATALOGUE OF THE REPORTS IN THE VARIOUS COURTS OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND, arranged both tm alpj^, /S7SLvT ^"^''^^^^^^CAL ORDER. By Stevens"& 'lii^;^,,, Sec L'haptei Sec Sec Sec THE BILI COST.' iXD A 01 "Thiii Jiieen's C lefore the or taxatic «lating tc >?rvctti€ 'Then larticularl ijace, a so lills of cos TRMPl.E liAK. th. iPERTY ACTS LfrKNDIX OV IIIK A(|> anil llic Mill, lie Ttni|i. Miiniiil Wnnnii's Proiurij )f Liiirdln's Inn, Iliuii.',|. i r^ Mihirtl wlilili liiiH liRcii isMii,| Hill (itiickiMwIi'ilm!!! Wdillmiii |B Imii bean w«ll maiiilniiied ly l«w Cdtitaliifil ill ihiMii i wdhIi, ST KVENi » HAYNES, BELL YARD , TEMPLE BAR. Second lulilion, much enlarged, in 8vo, price 2os., clolh, 41 CHAPTERS ON THE LAW RELATING TO THE COLONIES .ss.«rANT ,....«"'' <-'HARLKS JAMES TARRING, M.A., -THOH^o. ^.;;^,r- ---,— --.^.-..-v GENCE. Law, mill AilvDcate ilowil tO-^ In the KnKlinh courts. II ':~'"f'' *'"" i;au»cs of action. 11.- Criminally. Section a.— The Kxecutive Council. Lhapter I II.— I he Legislative Power, hection i.— ClnssirTcation of colonies. Section a.— Colonies with responsible govern- , . ment. Section 3.- -Privileges and powers of colonial Legislative Assemblies. The Judiciary and the Har. ' '- ' -^ " lonies. relating to the i.hapter v. — Appeals from the Colonies Chapter VI. — Imperial Statutes Culonlen, .Section i. — Imperial Stntuten relating to tht Colonies ill general. Seclion ». — Subjects of Imperial Legislation relating to the Colonies in general. Section 3.— Imperial Statutes relating to par. ticular Colonies. Topical _ -ouncil on at Index of Cases decided in the Privy *-■ . :•. »PI"-'»' ff'J'u the Colonies, the Channel Islamls, and the Isle of Man. Index of some 1 opics of English Law dealt with in the Cases. 'I'ouii al Index of Cases reUting to the Colonic* decided in tho Krifjlish Courts otherwise than on appeal from the Colonies. Index of Names of Cases. Appendix I, - II. Grnkkal Inuex. In 8vo, price ioj., cloth, fHE TAXATION OF COSTS IN THE CROWN OFFICE. BILLS OF COSTS IN COMPKISINO A COLLRCTION OF IN THAT OFFICE; rge margin, for the TS IN THE GDOM OF GREAT BOTH IN ALPHA Stevens & IIaynes, THE VARIOUS MATTERS TAXABLE INCLUDING COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS AND ON APPEALS FROM INFERIOR COURTS; •JOG ETHER WITH a table of court fees ot ihe high court of justice, By FREDK. H. short, ^ CHIEF CLKRK IN THE CHOWN OFFICE. fc.wi'<^;rt1^1^„'j^t'JrrIitZ^^ to I. taxed before the Kfore the master of the Crown Office ^in fa"rsuc^ a b^k U ,^^n f • T*''' "°,!^ *'[' ^ substituted), or ■'ir taxation in the Crown Office^w when taxing an nn.v^.n,' .°^' indispensable when preparing costs gating to bankruptcy prosecutors ^f^^S ■-?. vaaon= constitute a useful feature in this manual."-iai,"7V,««'"' " •■•--"" •-^'"-=. inc general kartSra;!^^<;;:^V.re?a°n.i1t 2Ltr.'fa^[ ^LV^e^'J^dT ''^"^^ "^« appearance of this work ace, a scale ofcosts usually alCd to soL^^^^^^ ^l Sh°« gives, in the first |.l.s of co.ts in various matte^rs. ■^^^^:^t^T.Z:itS'^^,^^^,^.^Js''J^^^^^^^ '^" I N s 42 II^!:ff::f_±_J^AYN^^ y^^^^ j.^^^^^ ^^^ mm (oiisuw liilislimoriK m mi Also a Collection of Statutes concerning Consuls. ' By C. T. tarring M A In one volume, 8vo, price is. 6d., cloth, ifTi«r r.„, ^ COMPLETE TREATISE UPON THE NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS And . S.,en,e„, „r .. r.„.,„. „j ^^^ ^se .„„Jec.„ wUH . T,„„ T.,.„ , By EDWARD MORTON* DANTFT ) i IVitl "Tl clect< rill b In 8vo, price 8.r., cloth, in ovo, price «.r., cloth. The TRADE MARKS REGISTRATION ACT 1875 And the Rules thereunder : TIT R Mvvm...rr.r.:.. t^.^\ ^^^' ^^'^: And the Rules thereunder; THE MERCHANDISE MARKS APT .J J Introduction containing a SUMMARY OF Tiiif t a«™SJ' '^^2, with an together with practical Notes and Ins^uctJ.nl ^^^^^ ^^ TRADE MARKS, Second Edition, in one volume. 8vo, price ,6.., cToUi^ feion' A CONCISE TREATISE ON THE STATUTE LAW OF THE LIMITATIONS OF ACTIONS By HENRY THOMAS BANNING MA 1 he vo, k ,s decidedly valuable. "-/,«w 7Vw,f " •'Mr. Bannmc has aHh^r.,l ,„ .u. _■_'_,'. : tM -";?o-h\'^^cl?e'!l.!: '.t.^i^„" °.kr^t« tve^- in an appendix, and .a.in, his boo. , digested with clearness and ir>t^\ltc My}'-La,oZ'.>y^! evidently been investigated with care and In 8vo, price is., sewed, AN ESSAY ON THE AN ESSAY ON THE ABOLITION OF CAPITAL PUNISHMENT £m6rac^n^„,orefar^uuMJ>nn Enunciation and Analysis of Ipr .; .r ^' applicable to Criminals of the Hi/eTDcgre/o^^^^^^^^^^^^ "^ ^''''" ''' I Man Cs W 'This fitten, 'ell to i'alker, By WALTER ARTHUR COPINGER AV 01 SEi OF THE Mll. ni.E TEMl-LE, ESQ., KARRISTER-AT-LAW Sixth Edition, in 8vo, price 31J. e^Tdoth ' THE INDIAN CONTRACT ACT, No. IX. of 1872 TOGETHER ' ^J I Lt, WITH AN INTRODUCTION AND EXPLANATORY NOTES TABLE OF CONTENTS, APPENDIX, AND INDEX ^v II. S. CUNNINGHAM and H. H. SHEPHERD BARRISTERS-AT LAW. t.rjSS.U, "Mr. S iw relati ins and I ny very ridently is work, id convei the pres "Its lav f errors, ne more times. I " Mr. Si fling to TEMPLE BAR. cloth, N IN THE APPEAL FROM, AND AND CONSULS; ; Consuls. ■ FOR THE LEVANT. ^^A^^^J^^j^^^ra^^AZ^ YARD, TEMPLE Second Edition, in 8vo, price 15.?., cloth, BAR. 43 loth, ^ THE I TRADE MARKS, ' TRADE MARKS ACT -LY ANNOTATED iubjects, with a Time Table ITUTE OF PATENT AGENTS. [ON ACT, 1875 vw^^ Magazi," ^urftal. IS OP ACTIONS, Irish, and American Cases ndex. :>, M.A., STORY S COMMENTARIES ON EQUITY JURISPRUDENCE. Semd English Edition, from the Twelfth American Edition. Bv W. E. GRIGSBY, LL.D. (Lond.), D.C.L. (Oxon) AN.) OP THK INKKR TEMPLE. BARRISTER-AT-LAW "^V^^StZf^^ I tk^:^^\^^:^ -- P-'^- '^V additional ive been called for. . . . The work '"°''-*''- ^"'"' ^""". It Ls high testimon iid to the editorshi dition should have pendix, and making his book ,1 :en investigated with care and Second Edition, in 8vo, price 8x., cloth. THE PARTITION ACTS, 1868' & 1876 InJ^ 's a very good manual-practical, clearly n ten, and complete. The sublet lends itseTf I to the mode of t.eatment adopted by Mr I'alker, and m his notes to the various sections he cuLd?h^i^ffl T^^' «?gether the cases, and di=- thfrf-V ^'"5'=" ".« ""Sing upon the language of the different provisions. "-6W/a/^'/<,„^^p^ °' fNISHMEiNT. ftjie Princifles of Latv a; of Guilt. INGER, th. • IX., of 1872. "^OTES, TABLE OF SHEPHERD, Second Edition, in 8vo, price 22.?., cloth, A TREATISE ON THE AW AND PRACTICE RELATING TO INFANTS By ARCHIBALD H. SIMPSON MA ' "^^ Z^}j\n^'^^f°'^'^^°°^ comprises the whole of the 1?J3 K^-'° '"'^"''' "^'h "^ '^ga'-ds their per. m and their property, and we have not observed y very important omissions. The author h" s worlc, and has brought together, n a concise te D^«m H°™.'- '^^ V. "P°" 'hesubfect down _the present Umc:-—Soiicitors- Joufnal. "s law IS unimpeachable. We have detected |o errors, and whilTt the work mi-;ht have been t;L'„'!:i-...-'-'i'^''y it isr'bVond all alitstr^ iWi:'""""" °' ^°""'^ ''^»"' Principies.^■~Z,a7^ Mr!: r^'T'V* °" f-asarranged the whole of the Law l-'iing to Infants with much fulness of detail, and yet in comp.-ir.-itively little space. The result is due mainly to the busine.sslike^ondensation of h , style fulness, however, has by no means been sacrificed to brevity, and so far as we have b^n ^o Mn "; "• 'H *°'-H.°">!"' no point of Iny im" portance, from the earliest cases to the last In the essential qualities of clearness, completeness desireS ^''*' ="•'=»"««'"*"' » leaves' nothfng to be ti.'e wiirr/;.V^t_l^i A".?"^?"'"' °f law.or prac ^i/^S"^^'''F^^":^'^"^^o5.:'aLn Mmfir 1*'°'?' ""\?*" l-e said may congr.itulate himself tn having achieved a considerable success. " —Law Magazine, February. 1876. 44 SrEVENS &- HAYNES, BELL YARD, TEMPLE BAR. In one volume, royal 8vo, 1877, price 3ar., cloth. THE DOCTRINES & PRINCIPLES OF THE LAW OF INJUNCTIONS. By WILLIAM JOYCE, or LINCOL N'S IN N, :i A RR ISTBR - AT-L A W. gaine!l'suted««r^edJir4^^^ ""'I P""'*^' of Injunctions' l,a, on the < Doctrines and /rinfipKf hU moortrn^bS "?r»,'''','"«' °",' * u^"'""'''' <:o">Panion volui enunciated ,n its abstract rather than it" coSe?nr„^nfr°^'''' ^''*'- J" 'he present work the Law i? same t.me no statement of a princip e is nTde un,~^^^^ ^'^^^^ P"**'''-;'' ''«'"« «-"«=d ; while at th, '•'"'/"•ISe of the Courts has b^en adhered o wXT^. f, ^^i" **"'"?"' "V^/"', "^« """^ P"" '^e ven anfw.th the conscientious careftHnes, that miX be ^v™.,''i^/ '° acknowledged a master of his subject he greatest assistance alike to the Studen Tn w^„, T ''' ^'°"'- '"•"'v '*»/ "^"'^ '^»""°« '''»» '« P'oveo bentdetails-andtothenrnr.i.i":!,, ..^.^"L.,^.7*-^"';'°8^^^ principles freed from their superincum \vn bent de;ails-and to the practit oner who w'^s^rr^'flT^P P"""P'" '"'•"d fr""" their superincum oppressive details of professional woVk/'^/^ ^^^^S'^^/ aS.'?' °" ''°'"" °' """""^ "^'''" "" ^F r^^if 5-.-/.T/£ AUTHOR. In two volumes, royal 8vo, 1872, price 70J,, cloth, THE UW & PRACTICE OF INJUNCTIONS. EMBRACING i ALL THE SUBJECTS IN WHICH COURTS OF EQUITY AND COMMON LAW HAVE JURISDICTION. By WILLIAM JOYCE, OK LINCOLN'S INN, BARRISTER-AT-LAW. BE VIEWS. 'A best i turn I Rei'ie "T work by th( come thege useful "Tl treati: well a A work which aims at being so absolutely comple e, as that of Mr. Joyce upon a subject which IS of almost perpetual recurrence In the Courts, cannot fail to be k welcome ofTe ing ?o hi profession and doubtless, it will be wel received and largely used, for it is is absolutely comph;7e as It aims at being This work is, therefore eminent y a work for the practitioner, b^ing full of practical utility in every page, and e^ery sentence fiJ- ■ • ".i:- ^' ''"^^ '° congratulate the pro fession on this new acquisition to a digest of the law, and the author on his production of a work of •/,'„,i'''; •^"^/^'^ ^^^ produced, not a treatise, but a ^o. iplete and compendious exposition of the Law comm^.n ir "' '"^"""'""^ '^-'> ■" ^''-'V -^ (^i,,«f ' "i'/'''- '^^'"'e'l '° 'lie practice of the compleie rd'exrulffvefrla.i" bot h ll^o '^hfla w ".nd "tr °' '*'=-'^""7> '^ "? -'""-^ --''• '' ■» a| supersede all other works on the subject 'vtl .Ir^l , ^ P'r",'"'* °^ granting injunctions. It must value.. We know of no book a, suit.^ble\o upplyTk'nowTed^e°„f' h Pr"<^«.^ " be foundof incalculah! friends as Mr. Joyce's exhaustive work f.U wi • '/•^^ °^ ?,* '""' of 'njunctions to our commoi 1 E..Uy J^rs. i^. Joyce^g^rtVo^L^ouYd'L- i''cL'k"t^^^^^^^^^ La^ . t roni these remarks it will be sufficiently per ceived what elaborate and painst.tking industjyra well as legal knowledge and ability, has Lr necessary in the compilation of Mr. Joyce's wo7k No labour has l,een spared to save the practitTon. labour and no research has been omiued whic cation nf^lf^"''*'*''.' ''."'-■id-?«i°n and exempifi. vl^^X ""^ '!^«.gene'-al principles of the Law and Practice of Injunctions."— iLaic youmal. "He does not attempt to go an inch beyond thai lowri."''' ^^ has express wrttten authority; he a" lows the cases to speak, and does not speak for them, thl'/nw Ti"" '" =°">«thing more than a treatise on the Uiw of Injunctions. It gives us the general law on almost every subject to which the pr^essrf injunction ,s applicable. Not only En^ bu hZ'^f^ decisions are cited, the aggregafe number 'eng 3,500, and the statutes ci,ej ,60, whilst th« index IS, we think, the most elaborate *e have evn ^^'^y-^^^'^wme, nearly 200 pages. The work is probably entireryexhaustive.''.-Za«, TimeT "Th( enough large, ai it to the "An essentia In Wc and Eg,uty UaV • Mr^ Joyce's Kreatwo°rk wo, Y.n """' i"dispe,,sable to niembers of he Commc» Law^ inde.v. His index is very^fulla^.d weTl arra.mld W^I^T .Tl'T '^ "^^^^ ".nless accompanied by a g^ as a sti.ndar't t-~t'' '- .-h ^7 ! ^'^.ranged. We feel that this work is ,I..«tin»-l ;„ .~i.. {.. .?i.^ deserves gre"at7redh'Vor"";he v%rrgr^f labou^^'TsJo^^^^^^^ justed themselves in a manner d^se^ in^h^hi^gl^^Satr^h^'y ^^^''^^nZ ^^J^ "Mr. dealing ' extenmn as we ha authoriti there is TEMPLE BAR. s., cloth, ^CIPLES OF ICTIONS. E, STE VENS &* HA YNES, BEU. YARD, TEMPLE BAR. 45 LAW. nd Practice of Injunctions' has ut a valuable companion volume In the present work the Law is Msible being cited ; while at tht , and for the most part the very owledged a master of his subject Third Edition, in 8vo, price 20j., cloth, A TREATISE UPON , THE LAW OF EXTRADITION AND THE CASES DECIDED THEREON By Sir EDWARD CLARKE, ^!r;.fierh« r -curate and.sensible book is the , wants to learn the principles and practice of the law of e.\tradition v/ I )- „™,.i.'i..i_'^ ,'.."' j^ — . -- — "...*^ «im nciiniuic uuoK IS ine best authoriiy to which the Knglish reader can turn upon the subject of Kxtradition."-.Sa/«rrfrty "The opinion we expressed of the merits of lUH work when it first appeared has been fully justified .>,r.~.°""i " — ^•■,"" """JWi "y 'he reputation it has cained. It is seldom wp « fr«H'f ''"""°J f'"' '° Prove come across a book possessing so much interest to es freed from their superincum the irenernl renH-rnn/i „, .k. ,„!.«.:" .7...'". ,.' '° on points of doctrine amidst thi r,, cloth, NJUNCTIONS. , —■■•"'" iJ>^in«i^^wi^ ail mucii inierest to the general reader and at the samotime fui nishine so "'f.V;,'.* «""'« '° 'he \slL^>lyer:•-Solicitors' Journal. 1 he appearance of a second edition of this treatise does not surprise us. It is a useful book, well a rranged and well written. A student who I - ■- ■• ■■■>. ^>ive have evei iriy 200 pages. The work is iaustive."--Zaa; Times. s no ordinary work. It is a -anting injunctions. It must ce will be found of incalculah! of injunctions to our commoi embers of the Common La* unless accompanied by a good IS iJestined to takr :f^ •■.'«." vhich it treats. 'The autho e^ publishers, as usual, ha' • — Canada Law Journal. THEIR CUSTODY, INSPECTION, AND PRODUCTION AT LAW IM EQUITY, AND IN MATTERS OF CONVEYANC5.NQ ' Includirg Covenants for the Production of Deeds .and Attested Conif^ • wifh ,„ a a- of Precedents, the Vendor and Purchaser Act iS^, &c Tc &r bJ t^^rr^^^^^ Arthur Con NGER, of the Middle Temple, Barrister a -Law -Author nf^^xt Law of Copyright " and " Index to Precedent^ in Conveylndng ' ' enoughM,"S "So." but \t ^oTuml'' isTol b^he'/om^rl^^'^^ ^^^^.^^.A a much-feh want, large, and we content otirseWes with recor^mend"ng space to JS?m„X ^ '^^ "fT^ ,^« ^-^^^ "°' It to the profession."-/.«,„ Times. ^ well a^nlS^l ,^^'^' '' °^ "** ^^^ ' '« ^PPears " ,'V7;A'^"S«/''='«»'-'yw"''en, and fully elaboriued. .Vith .hese few remarks we recommend his volume to our readers."— i:aw/ Journal. "oiume " A re.illy good treatise on this subject must be essential to the lawyer : and this is what we have In usi ble :i 4 Third Edition, in 8vo, considerably enlarged, price 36s doth THE LAW OF COPYRIGHT ^^'t^^.^'sSg:Ti^;a;^^^^^ with International and For^eign Copyright, with the Statu esrelatinfth;rS and Refero.ices to the Engli.sh and American Decisions. By Waiter Artkhp COPINGER, of the Middle Temple, Barrister-at-Law "'alter Arthur "Mr. Copinger's book is very comprehensive, dealing with every branch of his subject, and even extending tn copyright in foreiun m::r.fr-V= '^i-. '--- as we have examined, we have found all the recent authorities noted up with scrupulous care, and there is an unusually good inrlex. These are Zl'i^v''''''' *"[• «'°"l',"ess, lead -o the placing of this edition on the shelves of the members ^Ah. prorcsison v;.o»c business is concerned with codv- right ; and deservedly, for the book is one of^. siderable value."— .So/icfV,;/-*' Journal. ICoin Third Edition, in One large Volume, 8vo, price 32.., cloth, A MAGISTERIAL AND POLICE GUIDE : BEING THE LAW RELATING TO THE PROCEDURE, JURISDICTION, and DUTIES of MAGISTRATES AND POLICE AUTHORITIES, "^^^^^^^ IN THE METROPOLIS AND IN THE COUNTRY With an Introduction showing the General Procedure before MagistrateJ both in Indictable and Summary Matters. ^*8'«"t"| By henry C. greenwood ^ ST>PEND..^RV MAGISTRATE FOR THE DISTRICT OK THE STAFKORDSh/rE POTTERIES ; AND TEMPLE CHEVALIER MARTIN CHIEF CLERK TO THE MAGISTRATES AT LAMHITTu do, .^„ ' AUTHOR OF .« THE LAW OF MAINTENANCE -oVE^TrN/^^.V-.T^JV-X'^sV." ETC Third Edition. Including the Session 52 & 53 Vict., and the Cases Decided in thel A buPEKiOR COURTS to the End ok the Year ,889. revised and ellrZ 1^^ By temple CHEVALIER MARTIN. W "A second edition has appeared of Messrs r;rPonu/r.n/« «„-> »* • . ■ authors to rettd.r ft a Ihoroughly efficient and ImstSy Sd""5lL 5?««™;''"''' ''>' '" "Masistrates ™ll find a valuable handbook in Me.«r, fi™ T . . ■^ragsterial and Poiio. Guide,' o, whieh a rresh'Ek1,ii:!Ti'juSrerpla''ed'Jf' S s™;ai;?HSsS'piLt;r,-'riLThiK^^^^^^^ " For the form of the work we have nothing but commendatinn " \v^ tee o„^^ea, law book. I, „a, be said to^'on,,, SS^tS it XhTL^Jn'Sn'"!! | for '^':l^ST^^::'S'''■s^rZi'TS:s.i.^^£^t' ."'"^r"' "^^^ i carried ovA." —Solicitors' Journal. arrangement seems to us exceUent, and is well I " The Ma^sterial and Police Guide hv Mr l-Tonr.. n. Martin, is a n?odel work in its conciseness Lf so "ar7s we harden"' ^\ '^r^'' in compk-teness and accuracy, /t oughi co be in th, L1,^..* ,, r**^° '*' '^ *° '^st tt, otherwise, h:^ve authority in matters of ptucer-Daiiy N^t '^ """ ""^' "' •'"'S^^rates or-. states 'Sl:a;rd.ec^nltln;uhi;:k Wat "its 'Z^l^ss ^;^:^::^:4'%.''S ^7 ^''' V as Its merits desertje. "—Midland Counties Herald. ' "' ^'^''^^ "" "^^' " The exceedingly arduous task of collectiie together all tha »„o„. has bten ably and efficiently performed and the aKanlJnfiif ; *'"a<='"™fn's on the subject that one is able to lay a finger on a So^of an Act aK, " ' '° methodical and precise what a mass of inforLtion^s comprfsS'n s°o compLSrvd; smaluspTce' wV\ *°"'^^^1,' pleasure m recommendine the volume n«t .^nV ."„!?__*" ^^.P^<=?- .We have much gener.11 readers; nothing "can be more useful tn thA r.„Kii'^ .u""'''^'^"^* '^"^ *^*" "0 ou' oudlnes of masislerial Jufisdiclion a^a° prSre." WfeSS^jS" "» »««"»'"••-» .Uh the m "Soi |lhe tinit rtrated [lion of this tasl Watts." (FOUNI Se u G( Oj Ai ^TEy£^J^_^yj^,_B_ElL YARD, TEMP^TZ^. In one thick volume, 8vo, price 32J., cloth, THE LAW OF RAILWAY COMPANIES PMcSTh^^^il^^^^^^^^^^^^^ '■'l^an^;^H^^^^? 9-es ConsoH- ■ Act.i868 ; with Notes of Cases^on a I Vhl'wtfnnf J ^^\R«g"'ation of Railways year ,868 ; together with ^i Append xcrvfrSa^r/h/^l'K^^' ^^^^^ •'*' '*>« «"^ °f tfie to Railways, and the StandinS^SrSs of tf e li '''Tt™H«"»' Acts relating and a copious Index. By HeSy GodefkoV of 't°^ ^°^^%""^ Commonsi SHORTT.ofthe Middle Temple, Lrristers at Law '°'" ' ^""' ^"^"JOHN In a handy volume, crown 8vo, iSyo^^rice lor. 6dZ^' THE LAW OF SALVAGE, ' r PHS?^^Sh^^rtie?tSld with the ■ and an Appendix. conTaiSg s"attis Forms tSL IrT '" ^"^^ P^^^^"' ^™« ' Jones, of Gray's Inn, Ba rris^er-atS. ' ""'"'^ °^ ^^*'' ^'*=- ^^ EnwYN In crown 8vo, price 4^., cloth, ~~~ I A HANDBOOK OF THE LAW OF PARLIAMENTARY REGISTRATION I WITH AN APPENDIX OP STATUTES AND FULL INDEX ' ___^^ J^- SEAGER, Registration Agent. I In 8vo, price 5^,, cloth, fHE LAW OF PROMOTERS OF PUBLIC COMPANIES ' By NEWMAN WATTS, OF LINCOLN'S INN, _ Some recent cases in our law courts, which it JJA in'^lf "'^"'^"""='' P"''"<= "<"'<=«. have dLmon BARRISTER-AT-Li< W. ing didsi^ns'rek- .IT^**' "'«'^"^«^ »" 'h« '^^^^■ ,„Ti r^'^'^'°"s reiai rg (,, promoters and dir> -ini-Q and has a. ranged the in, 35. Brooks (W. J.), 13. Brown (Archibald), 20, 22, 2«, 33, 40. Browne (J. H. Balfour), 19. ^^' ^ Buchanan (J,), jg. Buckley (H. B,), 17. BucKNiLL(T.T.), 34,35. Campbell (Gordon), 47. Campbell (Robert), 9, 40. Cecil (Lord R.), 11. Chaster (A. W.), 32. Chitty (J. I. C. ',38, Clarke (Edward), 45. ^ Clauson (A. C), 17, COBBETT (Pnr), 43, COGHLAN f\V. M.), 28, Cooke (Sir G.), 35. Cooke (Hugh), 10. Copinger(\V. A.), 42, CORNftR (R. J.), 10. C0rTERELL(J. N.), 28. Crates (W. F.), 6, 9. CUNNlNGBAm (H. S.), 38, Cunningham (John), 7. CUNNIN(5HAM(T.), 34. Daniel (E. M.), 42. Darling (C. J.), 18. Deane (H. C), 23. De Bruyn vD. p.), 38. De Wal {].), 38. DiBDIN (L. T.), 10. Duncan (J. A.), 33. Edwards (W. D.), 16, 39. Elgood (E J.), 6, i8, 43. Elliott (G.;, 14. Errington (F. H. L.), iq. Evans (M. O.), 20 EvftRSLPY jW. P.), g. Finlason Av. F.), 32. Foa(E.x II. FOOTE (J. ALDERSpN), 36. Forbes (U. A.), 18. Forsyth (W.X 14- Frosx(R.) GiBBs(F. W.), 10. Godefroi (H.), 47. Greenwood (H. C), 46. Griffiths (J. R.), 40. .ft. »..v ,i. A. ^ Hurst (J.), i,J 25. 28. Joyce (W.), 44. 35. 45- 4a. 1U -^ 12. Grigsby (W. E-)>43. Orotius (Hupo), Js. Hall(R. G.), 30. Hanson (A.), lo. Hardcastie(H.), 9. Harris (Seym9ur F.), 20, 27. Harris (W. A.), 47. Harrison (J. C), 23. Harwood (R= G.), 10. Hazlitt (W.), 29., HiGGINS (C), y^: f\ Houston (J.), 32. ' ^ Hudson (A. A.), 12. Indbrmaur (John), 24 Indsrwick, ii. Jones (E.), 47. Kay (Joseph), 17. Kelke(W. H.), 6. KELYNO(SirJ.), 35, Kelynge(W.), 35. KoTzfc (J. G.), 38. Lloyd (Eyre), 13. LORENZ(C. A.), 38. LOVELAND (R. L.), 30, 34 Maasdorp(A. F, S.), 38. Macaskie(S. C), 7. Mansfield (Hon. f. VV), 17. March (John), 35.- MiRCY (G. N.), 26. Martin (Temple C), 7, 46. Mattinson (M. W.), 7 May (H. W.), 29. Mayne (John D.), 31, 38, Mellor (F. H.), 10. MtNziEs (W. ), 38. Moore (S. A.), m NoRTON-KVSHE, 40. • \CF. rt.;, jg, 0'Malley(E. L.), 33. Pavitt(A.), 32; Pkile (C. J.). 7, Pemberton (L. L.), 18, «. ' Phipson (S. L.), 20. Porter (j. B.), 6. Reilly (F. S.), 29. Rentcn (A.W.), 10 RiNGwooorR.), 13, 15, 29 ^ '' Salkowski (C), 14. Salmond(J. VV.), 13. Savigny (F. C. Von), 20. Scott (C. E.), 32. Sbager (J. R,), 47. Short (F. H.), 10, 41. Shortt (John), 47. Shower (Sir B.), 34. Simpson (A. H.), 43. Slater (J.), 7. Smith (Eustace), 23, Smith W. J.), 6. SMltlt (LUMLEY), 31. Snell (E. H. T.). 22. Story, 43. ! Tarring (C. J.), 26,41:42; TASWELL-LaNGMEAD, 21. Thomas (Ernest C), 28. • TySSEN (A. D.), 39. '.yfi,: \- Van der Keesel (D. G.), 3% W '^ ^'^,^"WEN, 3& VAi» Zyl, xi. W^aite (W. T.), 22. } Walker(W. G.), 6, i8,.4r • Watts (C. N.), 47. '^^ - Wertheimer (J.), 32. ' Whitrforu (F. M.), 3W Whitfield (E. E.), 14.? Williams (S. E.), 7. Willis (W.), 14. WoKTiiUNuTOK (o. W.), 29. 39. ? r ll' BHADBURV *GNEW. & CO LD., FRINTRRS, tONPON AVn TONB-JIBOK erated in this Cataloguel 32. "" -^ •-^■^ ^). 12. Hurst (J.), uj OHN), 24, 35, 28. ^ I. JOYCIl(W.), 44. 17- ),6. ), 35. .35- 38. 13- 1,38. L-). 30, 34, 35. F. S.), 38. '.), 7. on. J. VV), 17. 35. 26. -EC), 7, 46. W.), 7. 9- >•), 31, 38. ;8. Moore (S. A.), 30, . 40. '•). 33- , L.), 18, 32. 20. 6. 9. , Rf.ntcn(A.W.), 10,1 '3. 15. 29. ' 14. >, »3. /on), 20. !. 7. o, 41. ^7• 34- 43. .23.39. 23. m^' !6,4i, 42* AD, 21. C), 28. D. G.), 3% Va^ Zyl, 38. 6, 18,. 43. ■ 32., ). 3J.. I, 14.' 7. W.), 29. :;iiXiK.